Case BriefsHigh Courts

Uttaranchal High Court: Lok Pal Singh, J., allowed a petition which was filed mainly seeking a writ, order or direction directing the respondents to provide employment to the petitioner in terms of the agreement executed between their forefather and sugar factory.

At the time of establishment of the Kisan Sahkari Chinni Mill Ltd. some farmers provided their land for the Mill, in lieu whereof, they were given share in the respondent Mill as per the area of their land. Besides this, the land owners/shareholders and the respondent Mill were entered into an agreement whereby it was provided that on the basis of land provided, employment will be given to the farmer himself, his son/grandson as per their qualification in the factory.

The grievance of the petitioner was that he was the heir /member of one of such family whose land was acquired for the purpose of establishment of factory but he had been denied employment by the respondent.

Counter affidavit had been filed by the respondent 2 stating that as per the agreement executed between shareholder Chandan Singh and the respondent Mill, employment was provided to two grandsons of Late Shri Chandan Singh. Petitioner was great grandson of shareholder Shri Chandan Singh and was therefore not entitled to get the employment.

The fact that the land of the petitioner’s grandfather was taken for the establishment of the sugar mill was not disputed and no compensation was paid for the land acquired, instead a share certificate was issued to the land donor and a unilateral letter was written on behalf of the sugar mill which suggests that employment will be provided to the landowner, his son/grandson, as per their eligibility.

The Court noted that in the instant case, on the one hand, the petitioner had been deprived of the land, whereas on the other, he was being denied employment by the respondent. The respondent 2 Sugar Mill, which was an instrumentality of the State, should have considered the fact that the land owner who donated the land for establishment of sugar mill, their future generation should not be left starving. The interpretation of the agreement by the respondent to the effect that either the son or grandson will be provided employment was unsustainable in the eyes of law.

The Court allowed the petition and held that denial of employment to the petitioner by the respondent mill was arbitrary and illegal.[Shashikant Singh v. State of Uttarakhand, Writ Petition (S/S) No.862 of 2019, decided on 17-09-2020]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The Division Bench of R.F. Nariman and B.R. Gavai, JJ., while addressing a significant and interesting question of law expressed that,

“If one were to include the power to modify an award in Section 34, one would be crossing the Lakshman Rekha”

Interesting Question of Law

Whether the power of a Court under Section 34 of the Arbitration and Conciliation Act, 1996 to ‘set aside’ an award of an arbitrator would include the power to modify such an award?

Madras High Court decision 

A Division Bench of the Madras High Court had disposed of a large number of appeals filed under Section 37 of the said Act laying down as a matter of law that, at least insofar as arbitral awards made under the National Highways Act, 1956, Section 34 of the Arbitration Act must be so read as to permit modification of an arbitral award made under the National Highways Act so as to enhance compensation awarded by an Arbitrator.

Factual Matrix

The crux of the matter was that the above-stated appeals concerned notifications issued under the provisions of National Highways Act and awards passed. The said notifications were of the year 2009 onwards and the awards made were based on the ‘guideline value’ of the lands in question and not on the basis of sale deeds of similar lands.

It was stated that the competent authority had granted abysmally low amounts.

In Section 34 petitions that were filed before the District and Sessions Judge, the said amounts were enhanced to Rs 645 per sq. meter and the award of the Collector was therefore modified by the District Court in exercise of jurisdiction under Section 34 of the Arbitration Act.

Further, in the appeal filed to Division Bench, the above-stated modification was upheld, with there being a remand order to fix compensation for certain trees and crops.

Analysis, Law and Decision

Section 34 of the Arbitration Act

Bench noted that far from Section 34 being in the nature of an appellate provision, it provides only for setting aside awards on very limited grounds, such grounds being contained in sub-sections (2) and (3) of Section 34.

It is the opinion of the arbitral tribunal which counts in order to eliminate the grounds for setting aside the award, which may be indicated by the court hearing the Section 34 application.

Further, the Court stated that Section 34 is modelled on the UNCITRAL Model Law on International Commercial Arbitration, 1985 under which no power to modify an award is given to a court hearing a challenge to an award.

Old v. New

Elaborating more, Bench added that by way of contrast, under Sections 15 and 16 of the Arbitration Act, 1940, the court is given the power to modify or correct an award in the circumstances mentioned in Section 15, apart from a power to remit the award under Section 16.

Thus, under the scheme of the old Act, an award may be remitted, modified or otherwise set aside given the grounds contained in Section 30 of the 1940 Act, which are broader than the grounds contained in Section 34 of the 1996 Act.

In Supreme Court’s decision of MMTC Ltd. v. Vedanta Ltd., (2019) 4 SCC 163, it was decided that Section 34 proceeding does not contain any challenge on the merits of the award.

Adding to the above, Court stated that the point raised in the appeals stands concluded in McDermott International Inc. v. Burn Standard Co. Ltd., (2006) 11 SCC 181.

Delhi High Court’s decision in Cybernetics Network (P) Ltd. v. Bisquare Technologies (P) Ltd., 2012 SCC OnLine Del 1155 is also instructive.

Court’s opinion

Hence, in Court’s opinion, there cannot be a doubt that Section 24 of the Arbitration Act, 1996 cannot be held to include within it a power to modify an award.

McDermott International Inc. v. Burn Standard Co. Ltd., (2006) 11 SCC 181 was followed in Kinnari Mullick v. Ghanshyam Das Damani, (2018) 11 SCC 328. Also, in Dakshin Haryana Bijli Vitran Nigam Ltd. v. Navigant Technologies Pvt. Ltd., 2021 SCC OnLine SC 157, a recent judgment of this Court also followed McDermott International Inc. v. Burn Standard Co. Ltd., (2006) 11 SCC 181 stating that there is no power to modify an arbitral award under Section 34 as:

(f) In law, where the Court sets aside the award passed by the majority members of the tribunal, the underlying disputes would require to be decided afresh in an appropriate proceeding.

Under Section 34 of the Arbitration Act, the Court may either dismiss the objections filed, and uphold the award, or set aside the award if the grounds contained in sub-sections (2) and (2A) are made out. There is no power to modify an arbitral award.

Judicial Trend

Therefore, in view of the above discussed, it can be stated that this question has now been settled finally by at least 3 decisions of the Supreme Court.

To state that the judicial trend appears to favour an interpretation that would read into Section 34 a power to modify, revise or vary the award would be to ignore the previous law contained in the 1940 Act; as also to ignore the fact that the 1996 Act was enacted based on the UNCITRAL Model Law on International Commercial Arbitration, 1985.

Coming to the submission in support of the impugned judgment that the fact that the Central Government appoints an arbitrator and the arbitration would therefore not be consensual, resulting in a government servant rubber-stamping an award which then cannot be challenged on its merits, cannot possibly lead to the conclusion that, therefore, a challenge on merits must be provided driving a coach and four through Section 34 of the Arbitration Act, 1996. The impugned judgment is also incorrect on this score.

Lastly, the Supreme Court stated that if one were to include the power to modify an award in Section 34, one would be crossing the Lakshman Rekha and doing what, according to the justice of a case, ought to be done.

Parliament very clearly intended that no power of modification of an award exists in Section 34 of the Arbitration Act, 1996.

In several cases, the NHAI has not filed appeals even in matters which are similar i.e., arising from the same Section 3A Notification, as a result of which certain landowners have got away with enhanced compensation given to them by the District Court. Also, we cannot shut our eyes to the fact the arbitrator has awarded compensation on a completely perverse basis i.e., by taking into account ‘guideline value’ which is relevant only for stamp duty purposes, and not taking into account sale deeds which would have reflected the proper market value of the land.

Differential Compensation

The Court noted that in several cases, the NHAI has not filed appeals even in matters which are similar i.e., arising from the same Section 3A Notification, as a result of which certain landowners have got away with enhanced compensation given to them by the District Court. Also, the arbitrator has awarded compensation on a completely perverse basis i.e., by taking into account ‘guideline value’ which is relevant only for stamp duty purposes, and not taking into account sale deeds that would have reflected the proper market value of the land.

The Court was of the opinion that the said differential compensation cannot be awarded on the ground that a different public purpose is sought to be achieved. Also, the legislature cannot say that, however laudable the public purpose and however important it is to expedite the process of land acquisition, differential compensation is to be paid depending upon the public purpose involved or the statute involved.

Illustration

Take the case of a single owner of land who has two parcels of land adjacent to each other. One parcel of land abuts the national highway, whereas the other parcel of land is at some distance from the national highway. Can it be said that the land which abuts the national highway, and which is acquired under the National Highways Act, will yield a compensation much lesser than the adjacent land which is acquired under the Land Acquisition Act only because in the former case, an award is by a government servant which cannot be challenged on merits, as opposed to an award made under Part III of the Land Acquisition Act by the reference Court with two appeals in which the merits of the award can be gone into? There can be no doubt that discrimination would be writ large in such cases.

However, since the NH Amendment Act, 1997 had not been challenged before the Court, it refrained from saying anything more. It was said that in the facts and circumstances of the case interference under Article 136 was not called for.[National Highways v. M. Hakeem,  2021 SCC OnLine SC 473, decided on 20-07-2021]

Case BriefsHigh Courts

Patna High Court: Prabhat Kumar Jha, J., allowed the instant writ petition seeking to quash the entire proceeding of land acquisition and also to set aside notification under Section 4(i) of the Land Acquisition Act, 1894.

Contentions of the petitioners were such that their 30 acres of land was sought to be acquired for construction of buildings, workshops, hostels and staff quarters for Industrial Training Institute and notification under Section 4 of the Act was issued but the petitioners never received any notice in pursuance to the issuance of notification. The petitioners neither had any knowledge about preparation of award nor did they receive any single farthing as compensation.

It is further submitted that as per Section 11-A it is mandatory that award should be prepared within two years from the date of notification. Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 says that even an award under Section 11 has been made but if physical possession of the land has not been taken over or the compensation has not been paid, the said proceeding shall be deemed to have lapsed.

Counsel for the State submitted that preliminary notification under Section 4(1) of the Act was published and when no objection was received on behalf of land owners, thereafter, the declaration of acquisition of the land was made and a notice was issued to each of the land owners regarding intention of taking possession over the lands. Finally, the award was prepared and notice for the same was issued to the land owners. In spite of this none of the awardees appeared to receive payment on the date fixed and subsequently entire award money was deposited in the treasury. It is further submitted that thereafter physical possession of 30 acres acquired land was taken over under Section 16 of the Act and construction was made thereon.

The Court observed that at no point of time after preparation of the award, the notice was served on the landowners rather the respondent washed off his hands after preparing the award and without getting the service report of notice, deposited the compensation amount in the treasury instead of depositing the same in referral court. Hence, it was held that since the physical possession of the land has not been taken and the compensation has not been paid, the acquisition proceeding shall be deemed to have lapsed. The Court further directed that the appropriate Government, if pleases; shall initiate the proceeding acquisition afresh in accordance with the provisions of the Act. [Budhi Nath Jha v. State of Bihar,2020 SCC OnLine Pat 2682, decided on 17-02-2020]

Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K. Agrawal, J., discusses the decision of trial Court and first Appellate Court with regard to alienation of the property of a deceased by his alleged wife.

Facts of the instant case relate to the dispute in property left by Sukhdev. Both Sukhdev and his wife died issue-less.

Plaintiff claimed that he is the brother of Sukhdev and after the death of Sukhdev, he inherited the property left by Sukhdev and Shanti Bai, whereas defendant 1 alternatively claimed that she had married Sukhdev Sukhdev in Chudi form and became his wife thereafter, got her name mutated in the revenue record.

Plaintiff submitted that defendant 1 has no relationship with the family of Sukhdev and has illegally got her name mutated.

Trial Court

Trial Court decreed the suit holding that the suit property was the joint family property of Sukhdev and Anirudh Prasad Kamal Sen — plaintiff and defendant 1 is not the wife of Sukhdev and therefore the alienation made by defendant 1 — Dashmat bai in favour of defendant 1 is null void.

First Appeal | Second Appeal

On appeal being preferred before the first appellate Court by defendants 1 & 2 being dissatisfied with the judgment & decree of the Trial Court, the first appellate Court allowed the appeal and set aside the judgment & decree of the Trial Court and eventually dismissed the suit feeling aggrieved against which this second appeal has been preferred by the plaintiff under Section 100 of the CPC in which substantial questions of law.

Analysis & Decision

CUSTOM

Section 5 of the Hindu Marriage Act, 1955 lays down conditions for a Hindu marriage and Section 7 lays down ceremonies for a Hindu marriage by providing that a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.

Section 29 of the Act of 1955 saves the rights recognised by custom or conferred by special enactment to obtain the dissolution of marriage, whether solemnised before or after the commencement of the Act.

Section 3(a) of the Hindu Marriage Act, 1955 defines the expressions “custom” and “usage”.

Bench stated that Custom must have been observed for a long time and must be ancient.

Customs will have to be always strictly proved and in relation to matrimonial matters particularly to the existence of customs.

The Supreme Court in the matter of Yamanaji H. Jadhav v. Nirmala, (2002) 2 SCC 637 has held that custom being an exception, the general rule of divorce ought to have been specifically pleaded and established by leading cogent evidence by the person propounding such custom.

Principle of law laid down in Yamanaji H. Jadhav v. Nirmala, (2002) 2 SCC 637,  was followed with approval by the Supreme Court in the matter of Subramani v. M. Chandralekha, (2005) 9 SCC 407, by holding that as per Hindu law, divorce was not recognised as a means to put an end to marriage which was always considered to be a sacrament, only exception being where it was recognised by custom.

Now, coming back to the instant case, the dispute was with regard to the property left by Sukhdev who is the brother of the plaintiff. Whereas, defendant 1 claiming to be the wife of Sukhdev in Chudi form, alienated the suit property to defendant 2 which has been questioned in the suit.

It has also been alleged that Dashmat bai had married two other people prior to her alleged marriage with Sukhdev, though there was no evidence on record in regard to her divorce with the other two people.

Father of Dashmat bai, Jaitram (DW-1) categorically stated that he was not present at the time when Dashmat bai allegedly entered into marriage in Chudi Form with Sukhdev, which is quite unnatural that father was not present at the time of such important ceremony.

Similarly, Dashmat Bai herself could have entered into the witness-box and offered herself for cross-examination in absence of which adverse inference could be drawn against her.

As there was no iota of evidence of marriage having been taken place between Dashmat Bai and Sukhdev in view of the testimony of her father Jaitram (DW-1) and another witness DW-2, as they were not present in the said alleged marriage and in view of the fact that defendant 1 Dashmat Bai did not offer herself for cross-examination, adverse inference against her has to be drawn.

Hence, in view of the discussion, it can be said that no relationship of husband and wife existed between the defendant 1 and Sukhdev.

The question that needs to be answered is whether, by the alienation made by defendant 1, title was conveyed to defendant 2?

Supreme Court in its decision of Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259, dealt with the question of competency of a person to transfer property and transfer of property by a person without rights, wherein the following was held:

“7. Since Mangal Kumhar did not have an exclusive right, title or interest in the suit property, his widow Etwari Kumharin was not legally competent to sell the suit property to the appellants, purporting to be the sole owner of the property. Reliance is placed on Eureka Builders v. Gulabchand, (2018) 8 SCC 67 wherein this Court held: (SCC pp. 75-76, paras 35-36)

“35. It is a settled principle of law that a person can only transfer to other person a right, title or interest in any tangible property which he is possessed of to transfer it for consideration or otherwise. In other words, whatever interest a person is possessed of in any tangible property, he can transfer only that interest to the other person and no other interest, which he himself does not possess in the tangible property.

36. So, once it is proved that on the date of transfer of any tangible property, the seller of the property did not have any subsisting right, title or interest over it, then a buyer of such property would not get any right, title and interest in the property purchased by him for consideration or otherwise. Such transfer would be an illegal and void transfer.”

(emphasis supplied)

Court held that the alienation made by defendant 1 in favour of defendant 2 holding her to be the wife of Sukhdev as the property was originally owned by Sukhdev, is clearly void.

In view of the above discussion, decree be drawn up accordingly. [Anirudh Prasad Kamal Sen v. Dashmat Bai Suryavanshi, Second Appeal No. 93 of 2009, decided on 28-08-2020]

Case BriefsHigh Courts

Karnataka High Court: M.I. Arun, J. allowed the writ petition and declared the show cause notice or any subsequent proceeding as null and void.

According to the brief facts of the case, the petitioners were granted the impugned land in 1975 for non-agricultural purposes and had since been in peaceful possession.

The petitioners contended that the respondents had been issuing show-cause notices and had been pursuing proceedings against them since 2016 alleging that the said land was allotted to them, not in accordance with law. The petitioners had been defending themselves since the very inception of the dispute in 2016, and finally filing the present writ petition against the latest notice issued in August 2020. Further, the petitioners also sought the order passed by the respondent Commissioner cancelling their land grant to be quashed as it had been passed while the present appeal was still being adjudicated upon.

The Court held that since the land was granted to the petitioner in the year 1975 and the show cause notice has been issued in 2020, thus a lapse or delay of 45 years is not reasonable or just. The Court further pointed out that Article 112 of the Limitation Act prescribes 30 years limitation period for suits by or on behalf of the central or state government.

Furthermore, fraud may vitiate everything, but the respondents failed in indicating fraudulent acts by the petitioners in the notice. Thus the incessant delay in issuing the notice was held to be bad in law.[G. Chitra Poornima v. State of Karnataka, 2020 SCC OnLine Kar 1393, decided on 10-09-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

Authority for Advanced Ruling, Madhya Pradesh: The Bench comprising of Manoj Choubey (Joint Commissioner) and Virendra Jain (Joint Commissioner), ruled evenly in the matter brought by Atriwal Amusement Park under Section 98(4) of Central Good and Services Tax, 2017.

Atriwal Amusement Park was incorporated on 13th March, 2018. Applicant proposed activity of construction of water park for which various components and services would be used that are taxable under GST. Thus, applicant has approached the Tribunal for admissibility of input tax credit of tax paid or deemed to have been paid.

There were four major issues before the court, which dealt with instances of where input tax credit may be paid. First, whether applicant was eligible for credit on input tax of water slides. Second, whether steel and civil structure which is a support structure for slides, will be available for credit. Third, whether input tax be available on development and preparation land where slides are constructed. Fourth, whether applicant will get credit for construction of swimming pools as water slides directly run into pool.

Bench addressed each point individually, and initially dwelled specifically into the definition of ‘Plant & Machinery’. It included support structure and foundation as part of plant & machinery, and excluded buildings and civil structure from the definition. The bench found the applicant to be eligible for Input tax credit on water slides as they were included under the term ‘plant & machinery’ due to them being foundation and structural support.  For the second issue, bench found steel and civil structure to be a part of ‘plant & machinery’, therefore, they found it eligible for credit. For the third issue, bench found land to be excluded from the definition of ‘plant & machinery’ and hence, ousted the applicability for credit on land. For the final issue, bench decided swimming pool is a ‘civil structure’ and cannot be called a ‘support structure’, hence, credit was not available for swimming pool. [Atriwal Amusement Park, In re, Case No. 29 of 2019, decided on 09-06-2020]

Case BriefsHigh Courts

Madhya Pradesh High Court: G.S. Ahluwalia, J. while dismissing the petition, observed that the petitioners have an efficacious remedy of filing a Civil Suit against illegal possession of the land.

In the instant case, reliefs in the nature of writ of certiorari was sought to be issued to declare the construction over the land in dispute by the respondent private party be illegal unauthorized and encroachment, writ of prohibition was sought to be issued to prevent the respondent private party to raise further construction over the disputed property and writ of mandamus was sought to be issued to dismantle the unauthorized construction and to remove the restriction/hindrance caused in the way of the petitioners in approaching the property.

Counsel for the petitioners, Balwant Singh Kushwah submitted that Respondent 6, i.e., Additional Director General of Police, Police Headquarters, had encroached upon the land belonging to the petitioners and no action from the authorities was taken. It was further submitted that the right to hold the property is a fundamental right and, therefore, this petition is maintainable.

After analyzing the submissions of the petitioner, the Court observed that the right to hold a property is not a fundamental right. Moreover, this petition is against an individual in his personal capacity not in the capacity of Additional Director General of Police.

It was also submitted by the petitioner that the husband of the petitioner 2 had filed a civil suit for declaration of title and permanent injunctions for some other plots which the respondent 6 had encroached upon, in which the respondent no.6 was restrained from interfering with the possession, but in the circumstance where the respondent 6 had dispossessed husband of the petitioner 2, this cannot be considered as an efficacious remedy. Furthermore, a writ petition is not maintainable against a private individual. [Laxmi Devi v. State of MP, 2019 SCC OnLine MP 3629, decided on 25-11-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: G.S. Ahluwalia, J. dismissed a writ petition filed by the petitioners claiming that the Additional Director General of Police was unlawfully encroaching upon their land. 

The petitioners had claimed that they had approached the relevant authorities, but no action was taken by them. They subsequently filed a writ petition praying the Court to declare the construction over the land in dispute by the respondent as illegal, unauthorized, and encroachment. They prayed for dismantling the unauthorized construction of the hotel building and to remove the restriction/hindrance caused in the way of the petitioners in approaching the property.

The Counsel for the petitioners, Balwant Singh Kushwah, argued that the right to hold the property was a fundamental right and, therefore, the petition was maintainable. It is also submitted that the respondent had also encroached upon some other plots and accordingly, the husband of the petitioner had also filed a civil suit for declaration of title and permanent injunctions. By an order dated 30-06-2014 passed in a Civil Suit, the respondent was restrained from interfering with the possession, however, the respondent had dispossessed the husband of the petitioner, therefore the suit would not be an efficacious remedy. It was further submitted that the husband of the petitioner had not filed an application under Order 39 Rule 2-A CPC. Furthermore, there was no averment in the petition that the order stated above had attained finality.

The Court, however, held that it was incorrect to state that, “right to hold a property is a fundamental right”. They explained that the petition was filed primarily against the respondent in his individual personal capacity and not against any act done by him in the capacity of Additional Director General of Police. It is a well-established principle of law that the writ petition against a private individual is not maintainable. If the petitioner was of the view that the respondent was illegally trying to encroach upon the land or had illegally taken possession of the said land, then they always have an efficacious remedy of filing a Civil Suit. The Court was of the opinion that the petition was not maintainable and dismissed it. [Laxmi Devi v. State of M.P., 2019 SCC OnLine MP 3629, decided on 25-11-2019]

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: Vijith K. Malalgoda PC J and L.T.B. Dehideniya and P. Padman Surasena, JJ., allowed the appeal proceeding in the matter of declaration of title and for ejectment of the Defendant-Respondent from a land.

After the trial of this case the District Court had given a judgment in favor of the plaintiff-appellant aggrieved by which, the defendant-respondents had filed an appeal in the High Court where the learned High Court had set aside the judgment of the District Court, thus the instant appeal was filed in the Supreme Court seeking leave to appeal. The Court had granted leave to appeal on the questions of law set out in the Petition dated 30-11-12.

The Court while allowing the instant appeal explained that the High Court had failed to give reasons for rejecting the findings of the learned District Court Judge and the learned High Court Judges are not in a position to re-analyze the facts of the case without having any reasonable ground to do so. Thus, there was no reasonable basis upon the High Court to reverse the findings of the trial judge, since the District Judge had clearly analyzed the facts of this case and had come to a correct conclusion. [Rajamanthri Gedera Somalatha v. Wajira Kanthi Rathnasinghe, 2019 SCC OnLine SL SC 10, decided on 07-11-2019]

Case BriefsHigh Courts

Jharkhand High Court: Sujit Narayan Prasad, J. dismissed a writ petition filed by the applicant to challenge the decision of the Deputy Commissioner of Chatrahad who cancelled the jamabandi which was running in the name of the mother of the petitioner, Bigo Devi.

The land in question had been acquired by the State of Jharkhand in favour of the CCL. The possession of the land too was transferred in favour of the CCL. The revenue authority, in consequence of the impact of the acquisition, had passed an order of cancellation of jamabandi in favour of the petitioner on the ground that the petitioner was not found to be in possession of the landed property in question in a Mutation Case. The said order was affirmed by the appellate authority.

The petitioner submitted that although the land had been acquired, there was no compensation paid in favour of the recorded raiyat or her legal heir (the petitioner). For the redressal of this grievance pertaining to the disbursement of compensation, another litigation was filed by them which is lying pending before the competent authority for its consideration. It was submitted that since the revenue authority had cancelled the jamabandi, it would create hindrance in deciding the entitlement of compensation in lieu of acquisition which is lying pending for its consideration.

The defendant submitted that the petitioner cannot be said to have suffered from the impugned order because he was not in possession of the land in question in lieu of the acquisition of the said land by the State of Jharkhand in favour of the CCL and therefore, the jamabandi which was running in the name of the petitioner was rightly cancelled. Further, the entitlement of compensation had no nexus with the order passed by the revenue authority with respect to the creation of mutation because the creation of mutation or cancellation of jamabandi does not either create any right/title or extinguish right and title over the property.

The Court was of the view that since the petitioner was not in possession of the land in question, the running jamabandi in the name of the mother of the petitioner was rightly cancelled under the provision of Section 14 of the Bihar Tenant’s Holding (Maintenance of Record) Act, 1973 which states that only thing is to be seen for creation of mutation is possession over the land in question and since the petitioner was not in possession of the said land, the impugned order stood correct.

The Court further held that, “apprehension is not well-founded in view of the fact that creation of mutation or its cancellation does not either create or extinguish any right over the property in question.” [Raghubir Tiwary v. State of Jharkhand, 2019 SCC OnLine Jhar 1508, decided on 07-11-2019]

Case BriefsHigh Courts

Jammu and Kashmir High Court:  The case of the petitioners before Sanjay Kumar Gupta, J. was that they had filed an application for direction of equal bifurcation/partition of the whole land between the petitioners and the other co-sharers and respondent. 

It was stated that the father of the petitioners during his lifetime had acquired various lands at a village in Jammu. It was also stated that the real uncles of the petitioners who were also co-sharers in the aforesaid property had not taken care of the petitioners. The counsel for the petitioners, Mr Sudesh Sharma, stated that the petitioners were co-sharers in the land under different Khasra numbers at that village and they had also inherited the ownership rights of the land situated at the same village after the death of their father and mother. The other co-sharers of the petitioners were influential persons and they had illegally encroached upon the land of the petitioners and despite the above-said fact the respondents were not deciding the application of the petitioners for equally bifurcating/partitioning of the whole land between the petitioners and the other co-sharers. The counsel requested for a time stipulated disposal. 

The Court disposed of the instant petition with a direction to the Tehsildar to consider and decide the application filed by the petitioners as per the rules and regulations governing the field, within a period of two months from the date of receipt of a certified copy of this order. [Anju Devi v. State of J&K, 2019 SCC OnLine J&K 410, Order dated 03-05-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: This petition was filed before the Bench of Prakash Shrivastava, J., where the party had shown his willingness to give land under Section 56 of the Nagar Tatha Gram Nivesh Adhiniyam.

Facts of the case were such that land of petitioner was included in the Scheme published under Section 50 (7) of the Nagar Tatha Gram Nivesh Adhiniyam. It was submitted that the petitioner was willing to give land under Section 56 of the Act, but the respondent had not acted upon it.

Aviral Vikas, Counsel on behalf of respondent had submitted that an application which was filed earlier under Section 56 by Lotus Buildinafra P. Ltd. could not be considered as it was not the owner of the land in question. Further, a notice under Section 56 was issued to the petitioners but the same was challenged under Section 50 (7) instead of filing reply to it. Counsel pleaded that if petitioner files an application under Section 56 of the Act then the same will be considered by the petitioner.

High Court permitted petitioner to file an appropriate application under the relevant provision of the Act before the respondent. And the same should be considered and decided by respondents in accordance with law. [Kanhaiyalal v. Chief Executive Officer, 2019 SCC OnLine MP 447, dated 12-03-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Securities and Exchange Board of India (SEBI): The Board comprising S.K. Mohanty whole time member, concluded that launching/ floating/ sponsoring / causing to sponsor any ‘collective investment scheme’ (CIS) by any person requires obtaining of a requisite certificate of registration from SEBI.

Maitreya Plotters and Structures Private Limited (MSPSL), a company engaged in the real estate business purchased large quantities of land in different States, divided it into smaller plots as per requirements of customers and then sold it. In the year 2013, it was found that MSPSL had illegally mobilized funds from the public through CIS without obtaining a certificate of registration from SEBI. 

The issue for determination was: whether mobilization of funds by MPSPL under its various schemes/plans for ‘purchase or booking of plots of land’ fell under the ambit of CIS in terms of Section 11AA of the SEBI Act, 1992. 

The Regulator noted that payments received from investors were pooled and utilized by MPSPL for its schemes. The property, that was part of its scheme, was managed by MSPSL on behalf of investors. An agreement entered into between investor and MPSPL vested it with the right to carry out development work on the plot, and investor was handed over the plot only after the said development was complete even if he had paid the entire consideration. Thus, investors were not aware of the plot allotted to them and did not have any control over utilization of funds for its development.

In view of the above, it was held that scheme offered by MPSPL was a CIS and required to be registered as mandated under Section 12(1B) of the Act.  MPSPL and its Directors were held jointly and severally liable to wind up its existing CIS and refund the contributions collected from investors with returns due to them and submit a report thereon to SEBI. [Maitreya Plotters and Structures (P) Ltd., In re,  WTM/SKM/EFD DRA1/06/2018-19, Order dated 31-01-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: A petition was filed before a Single Judge Bench of Tejinder Singh Dhindsa, J. wherein extraordinary jurisdiction of the High Court was invoked.

Petitioner had invoked the extraordinary writ jurisdiction of the High Court in order to seek issuance of directions to respondent not to forcibly and illegally interfere with the peaceful possession of the land. The land was alleged to be under the ownership of the petitioner. Petitioner, in addition to the above, sought directions praying for restraining the respondent from making changes in the revenue record and to restore possession of 2 marlas of land. Whereas the respondent submitted that the civil proceedings that had already initiated were in respect of the same land which the petitioner seeks directions for in this writ petition.

The High Court after perusing the submissions of both the parties observed that the petitioner himself brought to notice of the Court that a suit had been instituted praying for permanent injunction in respect of the land restraining gram panchayat and others from digging in the land and to change the nature of the agricultural land. Therefore, the Court refused to interfere in the instant writ petition. [Harbhajan Singh v. State of Punjab,2018 SCC OnLine P&H 1693, dated 02-11-2018]

Case BriefsForeign Courts

Court of Appeal of Sri Lanka: An appeal was filed before a Single Judge Bench comprising of M.M.A. Gaffoor, J., against a judgment of district judge where the original plaintiff instituted an action seeking partition of a land.

Claim of plaintiff regarding the land was to receive undivided 1/2 share against the share of defendants whereas the two defendants were entitled to receive undivided 1/4 share according to his amended petition. The other defendants averted that they were exclusively entitled to the plantations and improvements in the land sought to be partitioned in this action. District court favoured the other defendants. Subsequently, the original plaintiff died and his son was substituted in his place as plaintiff-appellant who filed this appeal for setting aside of the above order of District Court.

Supreme Court observed after perusal of the plaint that the substituted plaintiff had amended the original plaint claiming that he was entitled to an undivided 1/2 share against two others entitled to an undivided 1/4 share while in the original plaint it was to be divided between four defendants. It was observed that substituted plaintiff was not completely aware of the facts of the case due to his admission of the fact that his father, the original plaintiff, was well aware of the facts of the case compared to himself and due to the same he had to amend the plaint. Appellant failed to show the existence of facts which could show his legal right or liability, thereby he failed to prove his case. Therefore, the appeal was dismissed. [Ahamed Abdulla Marikkar Mesthiriyar  Mohamed Ismail v. Sammon Hadjiar,2018 SCC OnLine SL CA 85, decided on 01-10-2018]

Case BriefsHigh Courts

Allahabad High Court: This petition had been filed before a Single Judge Bench comprising of Vivek Kumar Birla, J., in order to quash the impugned order passed by District Magistrate.

Facts of the case were that petitioner had been accused of encroaching upon the land of Gaon Sabha which was recorded as navin parti in the Revenue Code due to which damages were imposed upon petitioner under Section 67 of the U.P. Revenue Code, 2006. Petitioner aggrieved by the above filed an appeal before District Magistrate which was dismissed. This petition was filed against the above-impugned orders.

Petitioner contended that the impugned orders were arbitrary and illegal as petitioner’s ground was not considered. The orders also did not consider the claim filed in the appeal under Section 67-A. Whereas the respondent argued that the land in question was recorded as navin parti and it was not allotted to the petitioner.

The High Court while perusing impugned order found that notice was duly issued to petitioner whereby in reply he claimed that the land in question belonged to him but according to Code there is no allotment of land to petitioner and he is not eligible for the same. Court while perusing appellate order found that no documents to show allotment of land to petitioner were brought also petitioner was not eligible for allotment of land under Section 64 of the code. Court observed that not even this court had been presented with evidence to that effect. Court found no legal infirmity in the impugned order. Therefore, petition was dismissed due to lack of merit. [Satyadev Tripathi v. State of U.P.,2018 SCC OnLine All 1813, order dated 03-10-2018]

Case BriefsHigh Courts

Calcutta High Court: A Single Judge Bench comprising of Asha Arora, J. dismissed a revisional application filed by the petitioner assailing the order of the learned Additional District Judge who reversed the order of the learned Civil Judge granting a decree of pre-emption in favour of the petitioner.

The petitioner filed a case under Section 8 of West Bengal Land Reforms Act 1995, for pre-emption in respect of land which was transferred in favour of the opposite party (OP) by the predecessor-in-interest under a registered sale deed. Petitioner sought pre-emption of the land in question on the ground of adjoining ownership. The application for pre-emption was contested by the OP contending that the petitioner had waived his right, if any, by becoming an attesting witness to the above-mentioned registered sale deed. The application for pre-emption was allowed by the trial court. However, the Additional District Judge reversed the order of the trial court. Aggrieved thus, the petitioner was before the High Court in revision.

The High Court perused the record and found that the petitioner was indeed the attesting witness in the registered deed of sale of the land in question in favour of the OP. The Court relied on the decision of the Supreme Court in Jagad Bandhu Chatterjee v. Nilima Rani, (1969) 3 SCC 445, wherein it was held, under the Indian law neither consideration nor an agreement would be necessary to constitute waiver. A waiver amounts nothing more than an intention not to insist upon the right. The acquiescence in the sale by any positive act amounting to relinquishment of pre-emptive right have the effect of forfeiture of such a right. The High Court was of the opinion that by being an attesting witness to the sale deed, the petitioner by his act and conduct acquiesced to the sale of land sought to be pre-empted. Such an act impliedly amounted to relinquishment of pre-emptive rights and thus the petitioner had waived his right. In such circumstances, the High Court found no irregularity with the order impugned. Therefore, the revision was dismissed. [Tusar Kanti Basu Chowdhury v. Nil Kamal Basu Chowdhury,2018 SCC OnLine Cal 3433, decided on 08-06-2018]