Case BriefsSupreme Court

Supreme Court: While deciding about a century-old land dispute, the Division Bench of Hemant Gupta and V. Ramasubramanian*, JJ., upheld the impugned decision of the Allahabad High Court.

The Court held that since all the three brothers were alive when the Civil Court passed the partition decree, the Consolidation authorities were well within their powers—considering the subsequent death of two brothers—to hold that the shares of the brother who died issueless should be equally distributed among heirs of his two brothers.

Litigation History

The instant appeal was filed to assail the outcome of the proceedings under Section 9A (2) of the U.P. Consolidation of Holdings Act, 1953.

The common ancestor of both the parties was one Gajadhar Misra, who had three sons namely Sita Ram, Ramesar, and Jagesar. Sita Ram died issueless. Ramesar had a son named Bhagauti.

In the year 1928, Bhagauti filed a suit for partition before the Additional Civil Court. However, by consent of the parties, the dispute was referred to arbitration and the suit was decreed in terms of the arbitration award. In 1944, the said decree was challenged by Bhagauti claiming that the decree was collusive and not binding, which was dismissed by the Trial Court and dismissal was further confirmed by the Appellate Court.

Evidently, the mutation in the revenue records took place in 1952, and thereafter objections were filed by both parties under Section 9 of the U.P Consolidation of Holdings Act, 1953. The rival contentions revolved around the validity of the partition decree and dismissal of the subsequent suit of 1944.

The Consolidation officer passed an Order dated 04-05-1973, holding that the share of Ramesar got separated in the partition that took place in 1929 and that the shares of Jagesar and Sita Ram were held jointly and therefore, upon the death of Sita Ram without any issues, his share would have gone to Jagesar. Consequently, the consolidation Officer held that heirs of Ramesar will get only 1/3rd share and that of Jagesar will get 2/3rd share.

The order of the Consolidation Officer was assailed before the Assistant Settlement Officer who dismissed the matter. In revision, the Deputy Director of Consolidation held that the preliminary decree for partition granted in the suit of the year 1929 was never given effect. Noting that there was no evidence to show who among the two namely, Sita Ram and Ramesar died first, the revisional Authority held that both the branches of Ramesar and Jagesar were entitled to half share each.

The decision of the Revisional Authority was upheld by the Allahabad High Court in appeal.

Issue in Question

The appellants contended that the authorities under the Consolidation of Holdings Act cannot go beyond the decree passed by the Civil Court and that a preliminary decree for partition attains finality as regards the shares to which the parties are held entitled, even if no final decree has been passed resulting in the actual division by metes and bounds.

The appellants contended that since the contention that the preliminary decree of 1929 was collusive already stood rejected in 1944, the authorities under the Consolidation Act were obliged to give effect to the preliminary decree for partition.

Factual Analysis

The Court noted that at the time when the suit for partition of the year 1929 was decreed based on an arbitration award, all the three brothers namely Sita Ram, Ramesar, and Jagesar were alive and they all were held entitled to 1/3rd share each. It was only subsequently that Sita Ram died issueless. Further, none of the parties have any clue as to the exact date of death of Sita Ram or Ramesar to determine who predeceased whom.

Rejecting the claim of the branch of Jagesar that Ramesar predeceased Sita Ram, therefore, Sita Ram’s 1/3rd shares came to Jagesar by survivorship, the Court observed that there were no categorical findings with regard to who predeceased whom even in the judgment passed in Suit 1944. The Court stated,

“To put it in simple terms, Jagesar’s branch would be entitled to take Sita Ram’s 1/3rd share only if it is established that Ramesar had predeceased Sita Ram.”

Hence, the Court held that the revisional authority under the Consolidation Act had not gone beyond the Civil Court’s decree for partition since at the time of partition all the three brothers were alive.

The authorities under the Consolidation Act were confronted with two questions, namely,

(i) whether Sita Ram or Ramesar died first; and

(ii) whether Sita Ram’s 1/3rd share would go to Jagesar by way of survivorship if he had died after Ramesar.

The Court noted that the answer to the aforementioned questions did not depend upon the partition decree. Therefore, the only ground of attack to the order of the Deputy Director of Consolidation cannot be sustained. The Court opined that though the Deputy Director of Consolidation did not articulate his discussion on the issue with clarity, the same will not make his order vulnerable.

Conclusion

Hence, the Court concluded that the Consolidation authorities did not go beyond the Civil Court’s decree. Upholding the impugned decision of the High Court, the Court held that since there was no evidence regarding the dates of death, the Deputy Director of Consolidation rightly found it equitable to distribute Sita Ram’s 1/3rd share equally between the branches of Ramesar and Jagesar.

The instant appeal was dismissed.

[Sarju Mishra v. Jangi, 2022 SCC OnLine SC 873, decided on 13-07-2022]


*Judgement by: Justice V. Ramasubramanian

Advocates who appeared in this case :

Senior Advocate S. R. Singh counsel, Advocate, for the Appellants;


*Kamini Sharma, Editorial Assistant has reported this brief

Case BriefsSupreme Court

Supreme Court | The Division Court of Vikram Nath* and Dinesh Masheswari, JJ. held that the State’s act of taking the appellants’ property, all being farmers, without compensation, was arbitrary, irrational, and a clear violation of Article 300A of the Constitution. Since the land in question was agricultural, the Court opined that non-payment of adequate compensation would amount to a violation of the right to livelihood; a fundamental right under Article 21.

The Court observed, citing its decision in  K.T. Plantation (P) Ltd. v. State of Karnataka, 2002 SCC OnLine Kar 380, that under the mandate of Article 300A, the State can only deprive a person of the right to property if it is for a public purpose and the right to compensation is fulfilled, thereby reiterating that the right to compensation is an inbuilt part of Article 300A.

The Panchayat/Municipality wanted to widen the Sulthan Bathery Bypass Road and therefore requested the appellants to utilize their land for the construction of the road. The appellants were assured that they shall be paid proper compensation for surrendering their land.

According to the appellants, they gave their land on the assurance that they would be given compensation. After the construction of the road, the compensation was not paid to the aggrieved farmers and they moved to the Kerala High Court in 2014. The Single Judge ruled in the favour of the farmers and ordered compensation at the market rate on 26-08-2016. In appeal, the Division Court of the High Court set aside the judgment of the single judge on the reasoning that the burden of proof was on the appellants, that they were given the assurance of compensation, which they had failed to prove. Further, the High Court held that there is no provision in law stipulating that price needs to be given in case land is acquired for road development.

On the contention of the Panchayat/Municipality that the land was surrendered by the appellants voluntarily for no compensation, the Court held that it was for the Panchayat to prove such voluntary surrender by establishing that the appellants had signed a memorandum, an agreement, or a written instrument declaring their willingness to relinquish for no payment in favor of the Panchayat/Municipality. The Court further took note of the fact that the sole Judge had explicitly said that the Panchayat/Municipality as well as the Public Works Department (PWD) had failed to offer any such proof, and the Division Court did not discover any material on record produced by the Panchayat/Municipality or the PWD to that effect.

Hence, the Court held that the disputed land was not voluntarily surrendered by the appellants-farmers, and it was the High Court that erred in shifting the burden of proof on the appellants. The Court further stated that Article 300A restricts a person to be deprived of his constitutional right to property and since the land was used for agricultural purposes, non-payment of adequate compensation would also be a violation of the right to livelihood; an integral fundamental right under Article 21.

Consequently, the Supreme Court concluded that the High Court’s conclusion that there is no provision in law mandating compensation for road construction was contradictory to Article 300A of the Constitution. The impugned judgment and order of the Division Court were set aside and quashed while the judgment of the Single Judge was restored.

[Kalyani v. Sulthan Bathery Municipality, 2022 SCC OnLine SC 516, decided on 26-04-2022]


*Judgment by: Justice Vikram Nath


 

Case BriefsSupreme Court

Supreme Court: The 3-Judge Bench comprising of N.V. Ramana, CJ., A.S. Bopanna* and Hima Kohli, JJ.,  held that non-members of cooperative societies have no right to seek remedy under Section 61 of the Andhra Pradesh Cooperative Societies Act, 1964 (APCS Act).

The land in question had been allotted to the N.G.O. Cooperative Building Society Ltd. by the State for the purpose of formation of Layout and to allot sites to its members. Accordingly, the land a layout was formed and 625 members were allotted plots. The disputed plot measuring 3.2 cents was allotted to the respondent 1, one M.V. Ramana.

The grievance of the appellants was that the plot in question should not be allotted to the respondent 1 alleging that the said plot was reserved as parking area in the layout plan. The appellants were, a Welfare Association which was a part of the same layout and a couple i.e. plaintiff 4 and 5 who own shop premises in the layout which was situated opposite the plot in issue. Noticeably, the plaintiffs 4 and 5 were not members but were persons interested in purchasing the same plot that was allotted to respondent 1, ostensibly to retain the same as parking area in front of their shops on plot Nos.27, 35 and 36. The appellant along with the others had raised the dispute before the Divisional Cooperative Officer invoking Section 61 of the APCS Act.

The Divisional Cooperative Officer, on perusal of the material and evidence, noted the said plot to be a vacant commercial plot as denoted in the plan. However, on providing his own analysis, he had proceeded to term the plot in issue as a ‘parking area’ and had accordingly passed the award in favour of the plaintiffs. However, in appeal, the High Court held it against the appellants and set aside the award of the Divisional Cooperative Officer.

Factual Analysis

Though subsequently, certain parties had been deleted and the appellant who was a former President of the Society was alone prosecuting the appeals, the Bench opined that “what will have to be noted is the frame of the dispute, the parties to the dispute at the point in time when it was raised and the context in which it was done.”

The respondent 1, a member of the society who was allotted a plot in another layout formed by the N.G.O. Society, sought for an exchange of the plot. Accordingly, the earlier allotted plot was surrendered to the Society. In lieu thereof, the Society allotted the plot measuring 3.25 8 cents to respondent 1 and a sale deed was also executed and registered. The plot allotted to the defendant No.2 is located in front of the shops belonging to the plaintiffs No.4 and 5, private parties.

The Plaintiffs No.4 and 5 had earlier requested the NGO Society to allot the plot in their favour but were aggrieved when it was allotted to the respondent 1. Rejecting the explanation of the plaintiffs that they had sought to purchase the plot and retain it as a parking area, the Bench stated,

“Such an explanation cannot be accepted on face value. If in fact a plot was earmarked in the layout plan as a parking area, it is the bounden duty of the authorities concerned to maintain the same as such. It is difficult to fathom that a private individual who owns shop premises in the layout would invest money and purchase the vacant plot to retain it as a parking area for the benefit of the general public.”

Can Non-members invoke Provisions of Andhra Pradesh Cooperative Societies Act, 1964?

The APCS Act has made a provision for members of a Cooperative Society to approach the cooperative Officer designated, when there is a dispute amongst the members of a society or the member/members against the Society etc.

Observing that the plaintiffs apart from being non-members, who could not have invoked the provisions of the APCS Act, were also rival claimants and competitors for allotment of the same plot, the Bench held that the members i.e. former office bearers had made a common case with the non-members and in furtherance of the same, the plaintiffs had sought for a declaratory relief to declare the registered sale deed as null and void which is impermissible under the Act. Hence, keeping in perspective the subject matter, the relief sought and the parties involved, the Bench opined that the High Court was justified in rejecting the relief claimed by the appellants.

Whether the Plot was reserved for Parking Area?

Holding that grant of relief would have arisen only if there was definite material to indicate that the plot in question was reserved as a parking area in the layout plan, the Bench observed that there was no definite material to delineate from the layout plan that it was a parking area rather it had been shown as commercial plot/vacant plot. The Bench observed,

Keeping in view the location of the property owned by the plaintiffs No.4 and 5, the original authority had deemed it fit to keep the disputed plot vacant for being maintained as a parking area which is only an assumption based on the own analogy of the Divisional Cooperative Officer and amounts to modifying the approved layout plan.

The consideration in that regard made by the original authority, based on the said assumption was:

“b) For visitors coming to the shopping complex by bicycles, scooters, or cars there must be some space for parking the vehicles, particularly because it is obviously a commercial area. Vacant site viewed in the proper context and from a correct perspective means necessarily a parking place because parking place is a ‘must’ in a commercial area.”

In order to render a quietus to the issue, the Bench sought a report from the District Judge, Kadapa on the whole conspectus of the matter, which nowhere indicated that the plot in question was reserved or earmarked as a parking area. On the other hand, it had been referred to as the area earmarked for commercial purpose.

Conclusion

In the light of the above and considering the fact that the allotment being of the year 2000, construction had also been raised, more than two decades had elapsed by now, hence any intervention or action at this juncture would not be justified, the Bench dismissed the instant appeals. [Velagacharla Jayaram Reddy v. M. Venkata Ramana, 2022 SCC OnLine SC 34, decided on 11-01-2022]


*Judgment by: Justice A.S. Bopanna


Appearance by:

For the Appellants: B. Narayana Reddy, Senior Advocate

For the Respondent 1: Annam D.N. Rao, Advocate

For Respondent 5: K. Ravindra Kumar, Senior Advocate


Kamini Sharma, Editorial Assistant has put this report together


Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of M. R. Shah* and A.S. Bopanna, JJ., held that a person belonging to Scheduled Caste of one State and being an ordinarily and permanent resident of that State, cannot claim benefit of a Scheduled Caste in another State for the purpose of purchase of land belonging to a Scheduled Caste person of the latter State, which was given to the original allottee as Scheduled Caste landless person.

The dispute in question was with respect to the land which was allotted to one Chunilal as Scheduled Caste landless person and father of the respondent–original plaintiff. As per the case of the respondent, in the year 1972, the said Chunilal borrowed a sum of Rs.5000 from one Puran Singh and under the guise of documentation, the said Puran Singh belonging to Jat High Caste fraudulently made Chunilal sign the sale deed in favour of the appellant-original defendant
(a person belonging to schedule cast), who was a resident of Punjab.

Background

The said Chunilal filed a suit for ejectment against Puran Singh and Bhadar Ram on the ground that he was the allottee of the land and the sale deed dated 21-06-1972 was void and ineffective as the same was in violation of Section 42 of the Rajasthan Tenancy Act, 1955 and Section 13 of the Rajasthan Colonization Act, 1954.

The Trial Court held that the land was in possession of Puran Singh who was not a Scheduled Caste person and that the sale deed was in violation of Section 13 of the Rajasthan Colonization Act, 1954 as well as in breach of Section 42 of the Rajasthan Tenancy Act, 1955 and therefore, the said Puran Singh was liable to be evicted. However, in appeal the Board of Revenue settled the matter in favour of the appellant by giving him benefit of compounding on payment of compounding fees to the respondent under Section 13 of the Rajasthan Colonization Act, 1954.

As the decision of Board was challenged before the High Court, the High Court, by the impugned judgment and order had held that the appellant, being the resident and Scheduled Caste belonging to the State of Punjab, he could not have taken the benefit of his being Scheduled Caste in the State of Rajasthan. Reliance, in this regard was placed by the High Court on the decision in Action Committee on Issue of Caste Certificate to S and ST in the State of Maharashtra v. Union of India(1994) 5 SCC 244.

Schedule Cast Status and Effects of Migration

Evidently, the appellant was belonging to Scheduled Caste in the State of Punjab and was the permanent resident of State of Punjab. However, it was the case of the appellant that he had migrated to Rajasthan and as his grandfather and father had purchased the agricultural lands in the State of Rajasthan, he could be said to be the permanent resident of Rajasthan.

Rejecting the contention of the appellant the Bench opined that merely because his grandfather and father had purchased the agricultural lands in the State of Rajasthan, the appellant could not be said to be an ordinarily resident of Rajasthan.

As per Section 42 of the Rajasthan Tenancy Act, 1955, there is a restriction on sale, gift or bequest by a member of Scheduled Caste in favour of a person, who is not a member of Scheduled Caste. Looking to the object and purpose of such a provision, the Bench opined, “the said provision is to protect a member of the Scheduled Caste belonging to the very State he belongs i.e., in the instant case the State of Rajasthan.”

In the case of Marri Chandra Shekar Rao v. Geth G.S. Medical College, (1990) 3 SCC 130, the Supreme Court had observed that the Scheduled Castes and Scheduled Tribes in some States had to suffer the social disadvantages and did not have the facilities for development and growth, and ordinarily resident cannot be deemed to be so in relation to any other State on his migration to that State for the purpose of employment, education etc…Coincidentally it may be that a caste or tribe bearing the same nomenclature is specified in two States but the considerations on the basis of which they have been specified may be totally different. So also the degree of disadvantages of various elements which constitute the input for specification may also be totally different. Therefore, the Bench had held that merely because a given caste is specified in State A as a Scheduled Caste does not necessarily mean that if there be another caste bearing the same nomenclature in another State, the person belonging to the former would be entitled to the rights, privileges and benefits admissible to a member of the Scheduled Caste of the latter State.

Rejecting the argument of the appellant that the ratio of Action Committee on Issue of Caste Certificate to SC and ST[i] could not be applicable on the instant case as in that case the Court was considering the issue with respect to employment, education while in the instant case dispute was with respect to sale/sale of property, the Bench stated that,

We see no reason to restrict the applicability of the decision of this Court in the case of Action Committee (supra) only with respect to employment, education or the like and not to make applicable the same with respect to purchase and sale of the property.”

Factual Analysis

Noticing that the appellant was a Scheduled Caste belonging to State of Punjab and was an ordinarily and permanent resident of the State of Punjab, the Bench held that he could not claim the benefit of a Scheduled Caste in the State of Rajasthan for the purpose of purchase of the land belonging to a Scheduled Caste person of State of Rajasthan, which was given to original allottee as Scheduled Caste landless person, and therefore, it was rightly held by the Division Bench of the High Court, the sale transaction in favour of the appellant was in clear breach of Section 42 of the Rajasthan Tenancy Act, 1955.

Even otherwise, the sale transaction in favour of the appellant original defendant was also in breach of Section 13 of the Rajasthan Colonization Act, 1954. Evidently, the Board of Revenue granted the benefit of provisions of Section 13A of the Rajasthan Colonization Act, 1954 in favour of the appellant permitting him to pay compounding fees and regularized the transaction when the order of ejection was already passed against the appellant and the possession was already handed over to the respondent. The Bench clarified,

“Section 13(A)(2) of the Rajasthan Colonization Act, 1954 would be applicable only in a case where an order of ejectment has been passed, but a person against whom an order of ejectment has been passed has not actually been ejected from the land transferred.”

Hence, the Bench concluded that no order of compounding in favour of the appellant or even Puran Singh could have been passed by the Board of Revenue in exercise of power under Section 13(A)(2) of the Rajasthan Colonization Act, 1954.  Hence, the sale was held to be in breach of Section 13 of the Rajasthan Colonization Act, 1954 and Section 42 of the Rajasthan Tenancy Act, 1955. Accordingly, the impugned order was affirmed and the instant appeal was dismissed.

[Bhadar Ram (D) v. Jassa Ram, 2022 SCC OnLine SC 13, decided on 05-01-2021]


*Judgment by: Justice M. R. Shah


[i] (1994) 5 SCC 244


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Hemant Gupta and V. Ramasubramanian*, JJ.,  held that notification u/s 48(1) of the Land Acquisition Act, 1894 for exempting land from acquisition is of administrative nature and not of quasi-judicial nature. Therefore, it will not confer any vested rights in immoveable property forbidding the State to call back the same.

Background

A Notification was issued by the State Government under Section 36 of the United Provinces Town Improvement Act, 1919 (akin to Section 4(1) of the Land Acquisition Act, 1894) for the acquisition of land of a total extent of acre 1.85 in Village Mirzapur, Gorakhpur for the public purpose of providing housing/residential accommodation. The emergency clause was invoked and the enquiry dispensed with and possession of the entire land except one 2 piece bearing plot No.292/2 measuring an extent to 0.028 acres, was taken over by the State Government and an award was also passed.

In an attempt to get their land released from acquisition, the land owners contended before the Government that the aforesaid land was the only source of their livelihood and they earn their livelihood by way of vegetation/horticulture on the said land. There are 20 members in their family and none of them have their own house and that they would live there by making houses on the land. Cemeteries of their forefathers exist on the land and as per the general policy of the Government; such land should not be acquired.

Cancellation of Notification Exempting Land from Acquisition

Eventually, a notification was issued under Sections 48(1) and 49(1) of the Land Acquisition Act, 1894 by the government to exempt the land from acquisition subject to the condition that the land owners will not sell the land. But within a couple of years, the Government issued another notification cancelling the notification u/s 48(1) on the ground that the land owners had played fraud by making false representations, while seeking the release of the land as it came to the notice of the government from various sources that the aforesaid exempted land was being used for commercial purposes and the land mafias were buying and selling the land after raising illegal constructions on it.

Findings of the High Court

The High Court of judicature at Allahabad set aside the second Notification holding that once a Notification is issued under Section 48(1) of the Land Acquisition Act, 1894, the land gets released from acquisition and that, therefore, the only way the State Government could retrieve the land is to initiate the process of acquisition afresh. This reasoning was based upon two premises, namely,

  1. There is no provision in the Land Acquisition Act for cancellation of a Notification under Section 48(1); and
  2. Once a Notification under Section 48 (1) of the Land Acquisition Act is issued, the land gets vested in the original owner and that therefore, divesting cannot take place without following the process 7 of acquisition as enunciated in the Statute.

Is State empowered to call back Notification exempting land from Acquisition?

Section 21 of the General Clauses Act, 1897 states that power to issue include power to add to, amend, vary or rescind notifications, orders, rules or byelaws. Therefore, the power to issue Notification would include a power to rescind the Notification.

  1. Therefore, it is clear that the land owners were actually playing hide and seek by pleading religious sentiments, leading to the issue of the Notification dated 7.04.2003 under Section 48(1). In other words the Notification under Section 48(1) was invited by the land owners by making false representations. The land owners have actually played fraud upon the Government and secured the Notification dated 7.04.2003. Hence, they cannot be allowed to contend that the land can be acquired only through a fresh process of acquisition.

Is Notification under section 48(1) of the Land Acquisition Act a Quasi-judicial order?

On the reliance placed by the respondent on Industrial Infrastructure Development Corporation (Gwalior) M.P. Ltd. v. CIT, (2018) 4 SCC 494, to contend that power under Section 21 of the General Clauses Act is not available after an enforceable right has accrued under the notification or order, the Bench stated that Section 21 has no application to vary or amend or review a quasi-judicial order but a proceeding under section 48(1) of the Land Acquisition Act is administrative in nature. Therefore, the Bench opined that reliance on the decision in Industrial Infrastructure Development was misplaced.

The Bench clarified, the essence of a quasi-judicial order is that it is preceded by an opportunity of hearing to the party affected thereby. A notification under Section 48(1) does not warrant any notice or opportunity of hearing, to the original land owners. If at all any person will be aggrieved by the Notification under Section 48(1), it will be the beneficiary of the acquisition, which in the case at hand was the Parishad, and not the land owners.  Therefore, the Bench rejected the argument that a Notification under Section 48(1) is a quasi-judicial order.

Factual Analysis

Coming to the argument that the Notification under Section 48(1) had created a vested right and that the same could not be taken away unilaterally by a subsequent Notification for cancellation, the Bench emphasised that the first Notification was secured by the respondents by false representations and by playing fraud as when the respondents wanted to ward off the acquisition, they claimed that there were cemeteries of their forefathers, but after the first notification was issued, they started selling the land to third parties, who could not and did not share the same religious sentiments with the respondents.

Conclusion

Therefore, the withdrawal of such an illegal notification, which was secured by fraud, could not be found fault with. Accordingly, all the contentions of the respondents were rejected and the appeals were allowed. The impugned orders of the High Court were set aside and since the acquisition had been completed in all respects the Parishad was granted to proceed to implement the public purpose for which the land was acquired.  [U.P. Avas Evam Vikas Parishad v. Noor Mohammad, 2021 SCC OnLine SC 1266, decided on 16-12-2021]


Kamini Sharma, Editorial Assistant has put this report together 


Appearance by:

For the Appellants: Vishwajit Singh, Advocate

For the Respondent: Krishnam Mishra, Advocate and Anand Varma, Advocate

*Judgment by: Justice V. Ramasubramanian

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Devan Ramachandran, J. directed State to ensure that no new flag masts and posts be permitted to be brought on to the roads and public spaces of the State without first obtaining permissions from the competent Authority.

“This is an extremely unfortunate situation and it prevents a complete breakdown of law, because there can be no doubt that any such installation can be made on any public space or road only after obtaining necessary permission from the Local Self Government Institution or such other competent Authority.”

The facts of the case were that the petitioner alleged that certain political parties had put up a flag mast within their property illegally while it was contended by the respondent that t flag mast was not in the property of the petitioner, but on a road ‘purambokku’.

Calling it an issue of a larger dimension, the Bench had registered a suo motu case and had asked the respondent as to how any entity was allowed to put up flag mast on public roads or road ‘purambokku’ without permission, as it would, prima facie, be a violation of the Kerala Land Conservancy Act.

Considering the gravity of the issue, the Bench expressed concern that political and other similar flag masts are being installed across the length and breadth of the State, without any respite and the culture of putting up flag masts wherever, by influential political parties or such other association of people had permiated into the society very deeply. The Bench said,

“Not merely are flag posts erected, the persons who do so thereafter seem to think that they are in occupation and possession of the land on which it is, and boards and such other installations are also then made next to it or along with it; and this is demonstrably clear in almost every nook and corner of the State.”

Hence, the Bench asked the Authority concerned to file an affidavit dealing with the available legal provisions in this regard. The State was directed to ensure that no new flag masts and posts be permitted to be brought on to the roads and public spaces of the State without first obtaining permissions from the competent Authorities; and that the requisite steps for this purpose are observed strictly.

Additionally, the state was directed to cause an audit and survey of the various illegal flag masts across the length and breadth of the State and make the information with respect available to the Court.[Mannam Sugar Mills Co-Operative Ltd. v. Superintendent of Police, WP(C) No. 1671 of 2021, decided on 01-11-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: M/S R.T.Pradeep, Sri.V.Vijulal, Smt.M.Bindudas, Sri.K.C.Harish

For the State of Kerala: Sri.E.C.Bineesh, Government Pleader

Case BriefsSupreme Court

Supreme Court: The Division Bench of Hemant Gupta* and V. Ramasubramanian, JJ., held that revenue record is not a document of title. The Bench expressed,

“Even if the name of the lessee finds mention in the revenue record but such entry without any supporting documents of creation of lease contemplated under the Forest Act is inconsequential and does not create any right, title or interest over 12 bighas of land claimed to be in possession of the lessee as a lessee of the Gaon Sabha.”

A notification dated 11-10-1952 was issued under Section 4 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 by Uttar Pradesh government to the effect that an area of 162 acres in Village Kasmandi Khurd shall not vest with the Gaon Samaj and, accordingly all rights, title and interest of all intermediaries including the forest had vested in the State of Uttar Pradesh by that notification. Subsequently, on 23-11-1955, by a notification, the said land was declared as Protected Forest under Section 4 Indian Forest Act, 1927.

However, the local management committee (Gaon Sabha) had put the lessees into possession of land in question which was challenged by the Forest Department. Though, the Additional Commissioner, Lucknow decided the issue in favour of Forest Department, that order was set aside by the High Court of Allahabad.

Can a land be declared Protected Forest without mentioning its details in the notification?

The respondent-lessee argued that the details of land in respect of which notification under Section 4 of the Forest Act was issued were not mentioned, except providing the total area measuring 162 acres, hence the notification was vague and did not comply with the conditions specified in Section 4 of the Forest Act and it was only in the proclamation published under Section 6 of the Forest Act that the details of land (Khasra No. 1576) was mentioned.

Rejecting the contentions raised by the lessee, the Bench opined that it would be sufficient to describe the limits of the forest by roads, rivers, ridges or other well-known or readily intelligible boundaries, as done by the notification dated 23-11-1955, by mentioning that the land measuring 162 acres would constitute forest land. The Bench observed,

The notification dated 23.11.1955 has the boundaries on all four sides mentioned therein. There is no other requirement under Section 4 of the Forest Act. It is only Section 6 of the Forest Act which needs to specify the situation and limits of the proposed forest.”

Noticeably, in terms of clause (a) of Section 6 of the Forest Act, the details of khasra numbers which were part of 162 acres found mention in the proclamation so published. Therefore, the Bench held that statutory procedural requirements were satisfied.

Is final notification under S. 20 necessary for acquisition of land declared as Protected Forest?

Disagreeing with the argument of the respondent that the final notification under Section 20 of the Forest Act was necessary, the Bench observed that Section 20 of the Forest Act does show that for a reserved forest, there is a requirement of publication of notification but no time limit is prescribed for publication of such notification under Section 20. Therefore, even if notification under Section 20 of the Forest Act had not been issued, by virtue of Section 5 of the Forest Act, there is a prohibition against acquisition of any right over the land comprised in such notification except by way of a contract executed in writing by or on behalf of the Government. Since no such written contract was executed by or on behalf of the State or on behalf of the person in whom such right was vested, therefore, the Bench held that the Gaon Sabha was not competent to grant lease in favour of the appellant.

Calling the findings of the High Court that since no objections were filed by the Forest Department earlier, the objections would be barred by Section 49 of the Consolidation Act, clearly erroneous, the Bench clarified,

“The land vests in the Forest Department by virtue of notification published under a statute. It was the lessee who had to assert the title on the forest land by virtue of an agreement in writing by a competent authority but no such agreement in writing has been produced.”

Therefore, the Bench held that the lessee would not be entitled to any right only on the basis of an entry in the revenue record. Accordingly, the order of the High Court was held to be not sustainable in law and the same was set aside.

[Prabhagiya Van Adhikari Awadh Van Prabhag v. Arun Kumar Bhardwaj, 2021 SCC OnLine SC 868, decided on 05-10-2021]


Kamini Sharma, Editorial Assistant has put this report together 


Appearance by:

For Department of Forest: Advocate Kamlendra Mishra

For the Respondent: Advocate Aftab Ali Khan

For Gaon Sabha: Advocate Mr. Hooda

*Judgment by: Justice Hemant Gupta

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Hemant Gupta* and V. Ramasubramanian, JJ., set aside the order of Delhi High Court whereby the High Court had held that the Municipal Council could not impose different policies on lands transferred to it by the government than those imposed on lands owned by it. The Bench clarified,

“…the rights of Government of India in administering the markets as a lessor or licensee alone was transferred (to the Council) and not the land or the building thereon. The Council was to administer the properties as a delegate of the Union.”

Factual Matrix

A show cause notice was issued to the occupant-respondent alleging sub-letting and unauthorised construction in a stall located at Baba Kharag Singh Marg. The occupant-respondent claimed ownership of the property stating that the shop was allotted to one Maheshi Dhoundiyal and the same was sublet in the year 1999 to the occupant and later on it was transferred in her favour in the year 2000. The occupant-respondent relied upon the Circular dated 25-07-1996 as well as the policy adopted by the Government in pursuance of the Cabinet decision dated 31-08-2000 whereby occupants of the shops in the 14 specified markets were resolved to be granted ownership rights.

However, the Estate Office passed an order of eviction, ordering eviction of the allottee from whom the occupant had purchased the stall in question. The appeal against the said judgment was dismissed by the learned Additional District Judge.

Findings of the High Court

In appeal the High Court of Delhi allowed the petitions holding that merely because market in question i.e., Baba Kharag Singh Marg Market had fallen into the lap of New Delhi Municipal Council by virtue of notification dated 24-03-2006, it did not mean that the policy regarding substitution/mutation of ownership for that market could be different from the one adopted by the Council for all other markets managed by it. Accordingly, the High Court held that the Council could not treat them differently and the occupant was held to be entitled to regularization of allotment in accordance with its policies.

Nature of the Title

The predecessor of the occupant-respondent was allotted the site in question on 04-08-1998. Some of the conditions of the license deed read thus:

“The licencee(s) shall not permit the said premises or any part thereof being used by any other person for any purpose whatsoever without the previous consent in writing of the Government and in default thereof shall be liable for ejectment. The licencee(s) shall not introduce any partner nor shall he/they transfer possess on of the premises or part thereof or otherwise carry on the business in the premises alienate his interest in the premises.”

A partnership deed was executed by the predecessor of occupant-respondent on 12-06-2000 with the occupant-respondent wherein the predecessor had kept only 20% share in the partnership firm and the remaining 80% share was that of the occupant. The partnership was dissolved within 2 months with the condition that the predecessor of the occupant would have no objection for transfer of the shop in favour of the occupant-respondent and regularization in her name.

Contention of the Parties

On 24-03-2006, the Ministry of Urban Development, Government of India transferred certain markets to the Council and Municipal Corporation of Delhi w.e.f. 01-04-2006. The argument of the occupant-respondent was that the policy of regularization/restoration of allotment followed by the local bodies should be applied to the site in question rather that policies followed by the Land & Development Office and Directorate of Estates. Reliance was also placed upon an advertisement issued by the Government of India published in the Hindustan Times on 06-08-2001 to confer ownership rights to the shopkeepers of 12 markets. It was argued that the Government of India on 25-07-1996 allowed regularization of shops, stalls, flats which had come into occupation of the respective premises on or before 20-10-1989.

The appellant argued that the license deed executed in the year 1998 had clearly prohibited subletting of premises, including induction of a partner. It was also argued that the notice published on 06-08-2001 would not be applicable to the stalls located at the Baba Kharag Singh Marg market and that the administrative decision of the Cabinet dated 20-10-1989 had ceased to operate. Moreover, the occupant was not in possession of the stall on or before 20-10-1989 and the public notice dated 06-08-2001 specifically stipulated that the earlier decision of the Cabinet dated 20-10-1989 shall cease to operate.

Analysis and Findings

Rejecting the claim of the occupant-respondent upon communication dated 08-07-2008 wherein the Director of Estates had communicated to the Council that all powers to administer the markets shall now rest with Council/MCD and that the Council may take appropriate action in this particular case at their end, the Bench held that the letter dated 08-07-2008 was interdepartmental communication and not any policy decision or circular meant for public. Thus, the Bench stated, interdepartmental communications are not the enforceable orders of the Union or of the Council.

Noticing that there was a clear stipulation in the license deed executed by the predecessor of the occupant that she should not induct any partner or sublet the premises, the Bench remarked,

“…in utter violation of the terms of the license, firstly, the partnership was executed and within two months, it was dissolved. The act of the predecessor of the occupant and the occupant are clearly and unequivocally in contravention of the terms of the license deed.”

The notification dated 24-03-2006 explained that the Council was to function as a lessor or licensee and was to exercise all powers being performed by Land and Development Office, Directorate of Estates and Central Public Works Department, as the case may be. Thus, the rights of Government in administering the markets as a lessor or licensee alone was transferred and not the land or the building thereon and the Council were to administer the properties as a delegate of the Union. Similarly, the regularization/restoration of allotment of shops in para 3 of the Notification was in terms of the policy of the Union and not that of Council as it stated:

“…the guidelines and procedure followed by Land & Development Office and Directorate of Estates in the matter of…regularization/restoration of allotment of shops may also be followed”.

Thus, the Bench held that if there was a policy of regularization or restoration of the Union, the same was to be followed by the Council which was evident from the fact that the revenue generated from the transfer of markets had to be deposited in a separate corpus of funds to be utilized only for the purpose of development of markets and for no other purpose and such income would not accrue to the Council as a part of their budget. Therefore, the Bench held,

“…the markets transferred by the Government of India to the Council have to be dealt independently and separately than the properties owned by the Council as the Council has no title over such markets as it has been asked only to manage them on behalf of the Government of India.”

Verdict

In the backdrop of above, the Bench held that the orders passed by the High Court were erroneous in law and the same were set aside. The order of eviction affirmed by the Additional District Judge was restored.

[New Delhi Municipal Council v. Ganga Devi, 2021 SCC OnLine SC 803, decided on 27-09-2021]


Kamini Sharma, Editorial Assistant has put this report together 


Appearance by:

Counsel for the Appellant: Yoginder Handoo

Counsel for the Respondents: Anil Kumar Tandale, B. V. Balaram Das and   Aarthi Rajan


*Judgment by: Justice Hemant Gupta

Know Thy Judge| Justice Hemant Gupta