Delhi High Court
Case BriefsHigh Courts

Delhi High Court: A Division Bench of Siddharth Mridul and Gaurang Kanth, JJ. dismissed the writ petition as it was filed after almost 62 years challenging the acquisition proceedings whose enhanced compensation has been enjoyed already by the petitioners merely on the basis of coming to knowledge of a recent Supreme Court pronouncement declaring the notifications that led to proceedings being bad in law.

The facts of the case are such that Late Dewan Kesho Das ‘predecessor in interest’ was a displaced person under Displaced Persons (Compensation and Rehabilitation) Act, 1954 “Displaced Persons Act” successfully participated in the public auction of the ‘evacuee property’ in the year 1959 and executed an Indemnity Bond in favour of the President of India for the 10% of bid amount. Being declared as the highest bidder, he was directed to deposit the balance purchase price and even though the provisional possession of the evacuee property was offered the predecessor in interest never took the possession.

The predecessor-in-interest in year 1959 accepted the offer made by the Settlement Commissioner and offered their verified amount towards the balance purchase price. After adjusting the verified amounts, the sale certificate was finally issued in the year 1961. The Delhi Administration ‘Respondent 2′ issued the impugned Notifications on 13-11-1959 and 18-08-1960 ‘notifications’ and accordingly acquired the evacuee property. The predecessor, in interest being aware of the acquisition proceedings in respect of the evacuee’s property accepted the compensation and further sought for enhancement of compensation which was thereby granted.

It is the case of the petitioner that the Petitioners that they came to know about the Supreme Court judgment Saraswati Devi v. Delhi Development Authority, (2013) 3 SCC 571, in the year 2021 and later sought information from the Respondents under the Right to Information Act, 2005. Accordingly, the Petitioners came to know that the impugned Notifications are bad in law as the notices under section 4 of the Land Acquisition Act, 1894 had been issued prior to any sort of encumbrance being created on the evacuee property.

The petitioners, being son of the predecessor in interest herein filed the instant petition challenging the validity of notifications by Respondent 2 under Section 4 of the Land Acquisition Act, 1894 regarding acquisition of ‘evacuee property’.

Placing reliance on M S Dewan v. UOI, 2008 SCCOnLine Del 484, the Court noted that in the present case, there is an inordinate delay of almost 62 years in challenging the acquisition proceedings. The Petitioners accepted the enhanced compensation without reserving any right whatsoever. The law does not permit a person to approbate and reprobate at the same time. Inordinate delay in making the motion for a writ is indeed adequate ground for refusing to exercise discretion in favour of the petitioner. Therefore, now after an inordinate delay of about 62 years after the acquisition, the Petitioners cannot challenge the said acquisition proceedings.

Further, reliance was placed on Naresh Kumar v. UOI, (2019) SCC OnLine Del 7741 wherein it was observed

“We are of the view that the petitioners cannot after such a long period seek to rake up the issue of acquisition merely on the basis of some recent pronouncements by the Hon’ble Supreme Court even when they accepted the compensation qua acquisition of the land by neither challenging the acquisition proceedings nor the award but on the other hand were only interested in enhancement of compensation for which they have sought a reference.”

The Court while dismissing the petition noted that f an axiomatic delay disentitles a party to discretionary relief under Article 226 of the Constitution of India.

[Nardev Soni v. Union of India, WP (C) No. 7815 of 2022, decided on 05-07-2022]


Advocates who appeared in this case :

Snr. Adv. Neeraj Kishan Kaul, Azmat H. Amanullah, Namisha Chaddha, Nitya Sharma, Pritma Suri and Aarzoo Aneja, Advocates, for the Petitioner;

Jitesh Vikram Srivastava and Prajesh Vikram Srivastava, Advocates, for the Union of India ‘R1′;

Manika Tripathy Pandey, Shubham Hasija and Ashutosh Kaushik, Advocates, for R3;

Yeeshu Jain and Jyoti Tyagi, Advocates, for R 9.


*Arunima Bose, Editorial Assistant has reported this brief.

Kenya High Court
Case BriefsForeign Courts

African Court on Human and People’s Rights (‘AFCHPR’): While deciding the instant matter concerning the eviction of a Kenyan indigenous minority ethnic group — the ‘Ogiek‘ community from the Mau Forest area, the AFCHPR directed the Republic of Kenya to take all necessary measures, [legislative, administrative or otherwise] to identify, and delimit, demarcate and title the Ogiek ancestral land and to grant collective title to such land in order to ensure, with legal certainty, the Ogiek’s use and enjoyment of the same. The respondent State was also directed to pay monetary compensation for the moral and material prejudices suffered by the Ogiek due to this dispute. It is to be noted that the present decision deals only with the reparations to the affected community.

Background of the case: The instant application was filed in respect of the Ogiek of the Mau Forest. Ogiek are an indigenous minority ethnic group in Kenya comprising of about 20,000 members, about 15,000 of whom inhabit the greater Mau Forest complex – a land mass of about 400,000 hectares straddling about seven administrative districts.

In October 2009, the Kenyan Government, through the Kenya Forestry Service, issued a 30 days’ eviction notice to the Ogiek and other settlers of the Mau Forest, demanding that they move out of the forest on the grounds that the forest constituted a reserved water catchment zone, and was in any event part and parcel of government land under Section 4 of the Government’s Land Act. As per the Government, this decision was taken by the State in order to conserve the forest which is a water catchment area.

Contentions and Prayer: It was contended by the applicant that the decision by the Kenyan Government will have far reaching implications on the political, social and economic survival of the Ogiek Community. It was also contended that Kenya violated Arts. 1, 2, 4, and 17 (2) and (3) of the African Charter on Human and People’s Rights1.

The Applicant prayed before the Court to-

  • Halt the eviction of the Ogiek from the East Mau Forest and refrain from harassing, intimidating, or interfering with the community’s traditional livelihoods.
  • Recognize the Ogiek’s historic land, and issue it with legal title that is preceded by consultative demarcation of the land by the Government and Ogiek Community, and for the Respondent to revise its laws to accommodate communal ownership of property.
  • Pay compensation to the community for all the loss they have suffered through the loss of their property, development, natural resources and also freedom to practice their religion and culture.

Per contra, Republic of Kenya contended that –

  • There is no basis for a claim for compensation for any violations before the year 1992 when it became party to the Charter. It further contends that “any claim for financial compensation can only be computed from 26-10-2009 and only in relation to the notice given to the Ogiek to vacate the South-western Mau Forest.
  • The State also submitted that the instant matter is a proper case for an amicable settlement in line with Art. 9 of the Protocol to African Charter on Human and People’s Rights2.

Observations: The Court comprising of Imani D. Aboud, (President); Blaise Tchikaya, (Vice-President), Rafaâ Ben Achour, Suzanne Mengue, M-Thérèse Mukamulisa, Tujilane R. Chizumila, Chafika Bensaoula, Stella I. Anukam, Dumisa B. Ntsebeza, Modibo Sacko, JJ., and Robert Eno (Registrar); recalled that in their decision dated 26-05-2017, the Court found that the Respondent State had violated the rights of the Ogiek under Arts. 1, 2, 8, 14, 17(2) and (3), 21 and 22 of the Charter. It was also decided that the Court would rule on reparations in a separate judgment and invited the Parties to file submissions on reparations.

Regarding the reparations, the Court made the following observations-

  • The Right to Reparations for the breach of human rights obligations is a fundamental principle of international law. It was also observed that it is a general principle of international law that the Applicant bears the burden of proof regarding the claim for reparations. “It is not enough for the Applicant to show that the Respondent State has violated a provision of the Charter, it is also necessary to prove the damage that the State is being required to indemnify(…) There must, therefore, be a causal link between the wrongful act that has been established and the alleged prejudice”. The Court also observed that reparations must cover both material and moral damages. The Court must also take into account not only a fair balance between the form of reparation and the nature of the violation, but also the expressed wishes of the victim.
  • Regarding material prejudice, it was observed that even though the Court acknowledges that compensation is an important means for effecting reparations, it is not enough for an Applicant to show that the Respondent-State has violated a provision of the Charter; it is also necessary to prove the damage that the State is being required to indemnify. “Applicant, therefore, bears the duty of proving the causal nexus between the violations and the damage suffered. Additionally, all material loss must be specifically proved”. The Court observed that it is incontrovertible that the Respondent State’s actions resulted in violation of Ogiek community’s rights, therefore the State bears the responsibility for rectifying the consequences of its wrongful acts.
  • It was also noted that in view of the length of time over which the violations occurred, the number of people affected by the violations, the Ogiek way of life and the general difficulties in attaching a monetary value to the loss of resources in the Mau Forest etc., it is difficult to make a precise and mathematically exact quantification of pecuniary loss. Therefore, the Court must exercise its discretion in equity to determine what amounts to fair compensation to be paid to the Ogiek.
  • Regarding moral prejudice, the Court noted the contentions made by the Applicant where it was highlighted that how the Ogiek have not been able to practice their religion including prayers and ceremonies intimately connected to the Mau Forest. It was also noted that Ogiek people have also been denied access to an integrated system of beliefs, values, norms, traditions and artefacts closely linked to the Mau Forest and have had their right to development violated due to the Respondent State’s failure to consult with or seek their consent about their shared cultural, economic, and social life within the Mau Forest.
  • The Court pointed out that that the Respondent State violated the Ogiek’s rights under Arts. 2, 8, 17(2) and (3) and Art. 22 of the Charter by failing to recognise the Ogiek as a distinct tribe like other groups; by making it impossible for the Ogiek to continue practicing their religious practices; by evicting the Ogiek from the Mau Forest area thereby restricting them from exercising their cultural activities and practice; and Art. 22 was violated due to the manner in which the Ogiek were evicted from the Mau Forest.
  • It was observed that while it is not possible to allocate a precise monetary value equivalent to the moral damage suffered by the Ogiek, nevertheless, the Court can award compensation that provides adequate reparation to the Ogiek. It was also noted that since the Respondent State violated the rights that are central to the very existence of Ogiek, therefore the State is under a duty to compensate the Ogiek.
  • The Court also observed that in the context of indigenous peoples’ claims to land, demarcation is the formal process of identifying the actual locations and boundaries of indigenous lands. The Court noted that in international law, granting indigenous people privileges such as mere access to land is inadequate to protect their rights to land. “The Court wishes to emphasise though that given the unique situation and way of life of indigenous people, it is important to conceptualise and understand the distinctive dimensions in which their rights to property like land can be manifested”.
  • The Court fervently reiterated that the Ogiek have right to the land that they have occupied and used over the years in the Mau Forest Complex. “However, in order to make the protection of the Ogiek’s right to land meaningful, there must be more than an abstract or juridical recognition of the right to property. It is for this reason that physical delineation, demarcation and titling is important”.

Conclusion/ Decision: With the afore-stated observations, the Court held that

  • The Respondent State to pay the sum of KES 57 850 000 free from any government tax, as compensation for the material prejudice suffered by the Ogiek; and a sum of KES 100 000 000, free from any government tax, as compensation for the moral prejudice suffered by the Ogiek.
  • The Respondent State should undertake an exercise of delimitation, demarcation and titling in order to protect the Ogiek’s right to property, which in this case revolves around their occupation, use and enjoyment of the Mau Forest Complex and its various resources. The demarcation process is to be undertaken in consultation with the Ogiek and/or their representatives.
  • the Respondent State must take all appropriate measures, within one 1 year, to guarantee full recognition of the Ogiek as an indigenous people of Kenya in an effective manner, including but not limited to according full recognition to the Ogiek language and Ogiek cultural and religious practices
  • Respondent State, to commence dialogue and consultations between the Ogiek and their representatives and the other concerned parties for purposes of reaching an agreement on whether or not they can be allowed to continue their operations by way of lease and/or royalty and benefit sharing with the Ogiek in line with all applicable laws.

[African Commission on Human and People’s Rights v. Republic of Kenya, APPLICATION No. 006/2012, decided on 23-06-2022]

*Sucheta Sarkar, Editorial Assistant has prepared this brief.


1. African Charter on Human and People’s Rights

2. Protocol to African Charter on Human and People’s Rights on establishment of an African Court on Human and People’s Rights

Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Alok Aradhe and J M Khazi, JJ. dismissed the appeal and quashed the impugned judgment directing the appellants to determine the compensation and pay the same to respondents.

The facts of the case are such that the original respondent 1 viz., Narayana Reddy, owner of an agricultural land, wherein the said land, as well as several other lands, were required for formation of a layout between Banaswadi Road and Hennur Road commonly known as HRBR Layout. A preliminary notification dated 21-03-1977 and a final notification dated 14-05-1980 was issued. The father of original petitioner filed a writ petition seeking to give effect to the resolution for de notification of the land which was thereby dismissed. Then, again a writ petition was filed challenging the validity of the notifications which was again dismissed. The original petitioner again filed a petition challenging the notifications without disclosing the factum of filing two previous writ petitions by the father. The impugned notifications were quashed and the writ petition was allowed holding that the petition does not suffer from delay and laches as the scheme was not substantially implemented as required under Section 27 of the Bangalore Development Authority Act, 1976 within five years from the date of the final notification and therefore, the scheme has lapsed. Thus, instant appeal was filed.

Counsel for the appellant submitted that the original petitioner was guilty of suppression of facts and the writ petition filed by the original petitioner suffered from delay and laches and the writ petition was barred by res judicata. It was also contended that the original petitioner cannot claim any benefit on the principle of negative equality and no legal right accrues to the original petitioner even if in some cases in which adverse orders have been passed against the appellants, it may not have preferred an appeal. However, it is fairly submitted that the land owners are entitled to just and fair compensation.

The Court relied on judgment Krishnamurthy v. Bangalore Development Authority, 1995 SCC OnLine Kar 498 wherein it was observed “It is also pertinent to note that proceeding under Section 27 of the Act would lapse only if two conditions are satisfied viz., failure to execute the scheme by dereliction of statutory duties without justification and substantial execution of the scheme depending upon the scheme.”

The Court observed that it is trite law that principles of constructive res judicata and res judicata apply to writ proceeding. In the instant case, the original petitioner who claims title in respect of property in question through his father is bound by the decision of previous writ petition and cannot be permitted to agitate the validity of the impugned notifications again on the principle of res judicata Thus, the challenge to the aforesaid notification is barred by principles of res judicata.

The Court further relied on judgment K. Jayaram v. Bangalore Development Authority, 2021 SCC Online SC 1194 and observed that the petitioner is guilty of suppression of material facts and has not approached the court with clean hands. Therefore, the discretionary jurisdiction under Article 226 of the Constitution of India, which is equitable and extraordinary cannot be exercised in favour of the original petitioner.

The Court relied on Chandigarh Administration v. Jagjit Singh, (1995) 1 SCC 745, and opined that even if some similarly situated persons have been granted benefit inadvertently or by mistake, the same does not confer any legal right on the original petitioner to claim similar relief. Therefore, even if some land owners may have been granted the benefit, inadvertently by the authority, the same would not confer any legal right on the original petitioner to claim the similar benefit.

The Court directed that the “appellants shall take steps within a period of six weeks to determine the compensation payable to respondents 1(a) to 1(d) and shall make payment of the amount of compensation as is permissible in law.” [Bangalore Development Authority v. Principal Secretary, Revenue Department W.A.  No. 4121  of  2017, decided on 24-05-2022]


Appearances-

For appellants- Mr Gurudas S Kannur and Gouthamdev C. Ullal

For respondents- Mr Rajashekar and S. Suresh Desai


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a case where the Court was posed with the question as to whether determination of market value subsequent to the notification would be relevant to determine the market value of the land acquired more than two years earlier, the bench of Hemant Gupta* and V. Ramasubramanian, JJ has held that the same was not permissible.

In the present case, the notification dated 26.10.1990 was published intending to acquire 32 acres 6 kanal and 3 marlas of land in Village Sohana and 90 acres 7 kanal and 18 marlas of land in Village Lakhnaur. The said notification was followed by a notification dated 6.11.1991 issued under Section 6 of the Land Acquisition Act, 1894. The Land Acquisition Collector awarded compensation of Rs.1,75,000/- per acre. Aggrieved by the market value determined by the Land Acquisition Collector, the land owners sought reference under Section 18 of the Act. The Reference Court awarded compensation of Rs.4 lakhs per acre apart from the compensation for super-structures. The said award of the amount of compensation was based upon a judgment dated 11.10.2002 by the Reference Court pertaining to the same notification in respect of land situated in Village Lakhnaur.

It is important to note that the land situated at Village Sohana was also acquired vide notification dated 11.11.1993. The Reference Court awarded Rs.6,96,000/- per acre. However, the High Court has awarded compensation @ Rs.8 lakhs per acre. It was hence argued before the Supreme Court that suitable deduction should be made from such determination of the market value of the land acquired vide notification dated 26.10.1990.

The Court, however, noticed that, in the case at hand, when the later notification is issued, the development activities had already been taken place in view of the earlier two notifications. Therefore, it was not the percentage of increase in the market value but increase due to the development which has taken place on account of earlier notifications.

The Court, hence, held that the market value of the land cannot be based upon the land acquired vide notification dated 11.11.1993 i.e., more than two years later of the notification in question and when there were other notifications intervening on 26.10.1990 and 25.7.1991.

[Bhag Singh v. Union of India, 2022 SCC OnLine SC 553, decided on 05.05.2022]


*Judgment by: Justice Hemant Gupta


Counsels

For Land Owners: Senior Advocate Rameshwar Singh Malik

Case BriefsHigh Courts

 Chhattisgarh High Court: Narendra Kumar Vyas, J. allowed an appeal filed by the defendants setting aside the judgment and decree by the Trial Court whereby trial Court had decreed the suit filed by plaintiff/respondent 1, dismissed the counter claim filed by appellants/defendants 1 to 3.

The appellants/defendants are all residents of Bilaspur. The suit land already described by this Court was the self acquired property of mother of defendants and plaintiff. Her name was recorded as title holder of the suit land. It was pleaded that plaintiff has taken care of his mother till his lifetime, all the last rituals have been performed by him and due to care taken by him she bequeathed a Will in favour of the plaintiff on 28-10-2010 and since then plaintiff was in possession of the suit land. After her death the plaintiff moved an application for mutation of the suit land in his name being successor per Will dated 28-10-2010 executed by her. The name of plaintiff has been mutated in the revenue record as the land owner on 10-09-2013. The defendants 1 to 3 had preferred an appeal wherein they had raised an objection that the plaintiff was not only successor of her and they were also the successor, as such their names should also have  been recorded in the revenue record.

The illegal interference of the appellants/defendants in the title and ownership of the suit land which is owned by the plaintiff necessitated the plaintiff to file present suit for declaration and for grant of permanent injunction.

Defendants filed their written statement denying the averments made in the plaint contending that the Will dated 28-10-2010 was forged one, as such, on the basis of forged document, order of mutation was illegal and against the provisions of law, therefore, order dated 10-09-2013 was not binding upon them.

From the factual matrix the Court identified two main issues:

(i) Whether the will has been proved as per the provisions of section 68 of the Evidence Act and Section 63 (c) of the Indian Succession Act?

(ii) Whether the defendants are entitled to get equal share of the suit land being coparcener as per Hindu Succession (Amendment) Act, 2005?

From analysis of the evidence and considering the evidence they have nowhere stated that will has been written as per the direction of the testatrix and also considering the fact that the witnesses have nowhere stated in their evidence that the testatrix has put her signature on the will in their presence. therefore, doubtful circumstances establish with regard to existence of will. Also, application which was filed before Revenue Court for mutation wherein the defendants have not made party despite aware of the facts that sisters are still surviving, it certainly creates doubt over genuineness of the will.

For deciding issue 1 the  Court considered the judgment of the Supreme Court in Murthy v. C. Saradambal, (2022) 3 SCC 209 and stated that it is crystal clear, that the validity of Will was not proved in accordance with the provisions of the law and suspicious circumstances are available on record which have not been cleared by the plaintiff by placing material on record, therefore, judgment and decree so far as holding that the plaintiff was the owner of the suit was set aside.

For Issue 2 the Court extracted provisions of section 6 of Hindu Succession Act, 1956 as amended in 2005 and explained that since the plaintiff and defendants are coparcener of the joint Hindu family property, as per Hindu Succession Act as amended in 2005, the daughters were also entitled for getting equal share in the property inherited by their parents. The suit land was inherited by deceased mother, as such defendants and plaintiff were entitled to get equal share in the property as per Section 6 of the Hindu Succession Act as amended in 2005. The Court relied on the judgment of the Supreme Court in Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1 and decided that plaintiff and defendants were entitled to get ¼ shares in the suit property.

Counsel for the appellants/defendants had also filed application under Order 41 Rule 27 Read with Section 151 of the CPC for taking additional document on record by stating that during pendency of the appeal, the appellants/ defendants have filed an application under Order 1 Rule 10(2) CPC by which the respondent No.1 has sold total 10 decimal of the land in favour of respondent/plaintiff 3 , therefore, he was arrayed as party to the case. While allowing this application the Court held that sale of land shall also be subject to the decision of this appeal and the land already sold to respondent 3, if it is part of suit land then .040 hectare land will be adjusted/ reduced from the share of plaintiff.

Counter claim and appeal filed by the defendants was allowed and it was held that defendant 1-3 were entitled to get equal share in the property as per Hindu Succession Act, as amended in 2005.[Sonia Bai v. Dashrath Sahu, 2022 SCC OnLine Chh 468, decided on 28-02-2022]


For the Applicants : Mr Aman Sharma

For the Respondent 1 : Mr Dhirendra Mishra

For the State : Mr Sameer Sharma, Dy. GA

For the Respondent 4. : Mr Dashrath Prajapati


Suchita Shukla, Editorial Assistant has reported this brief.

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: Expressing that the due execution of a Will is to be proved as per the provisions of law as laid down in Evidence Act as well as that if Indian Succession Act,  Gautam Kumar Choudhary, J., remarked that, a probate court being a Court of conscience, the intention of the testator is paramount and it is the bounden duty of the Court to ascertain the real WILL of the testator if any.

Appellants preferred the present appeal against the order granting probate of Will executed by the testator in favour of his daughter (applicant) with respect to a land.

Applicant’s case was that the suit land was the self-acquired property of the testator who executed the Will.

It was asserted that the Will was executed out of free will and in perfect health.

Though the objector’s (son) case was that the testator never executed any Will and the said Will was forged and fabricated.

Analysis, Law and Decision

High Court expressed that a probate court is not competent to determine the title of schedule property.

Additionally, the Court observed that,

The jurisdiction of a probate court is limited to determination that the will executed by the testator was his last will. Whether he had right to execute the will with respect to the schedule property is beyond the scope of the court considering a probate application.

In the Supreme Court decision of Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon, (2007) 11 SCC 357, it was held that,

“the court of probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court. Therefore, the only issue in a probate proceeding relates to the genuineness and due execution of the will and the court itself is under duty to determine it and preserve the original will in its custody. The Succession Act is a self-contained code insofar as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the Probate Court”. 

Further, the Bench added that,

Testamentary disposition of property is deviation from natural line of inheritance in lesser or greater degree. It may result in complete disposition in favour of one of the heirs of the testator or it may even be in complete exclusion of any of the heir.

In view of the facts and circumstances of the case, Court affirmed the lower Court’s order. [Neelam Singh v. Sudha Sinha, Misc. Appeal No. 123 of 2012, decided on 10-3-2022]


Advocates before the Court:

For the Appellants: Mr. Anil Kumar Sinha, Advocates

For the Respondents: M/s A.K. Das & Swati Shalini, Advocates

Case BriefsHigh Courts

Karnataka High Court: S. R Krishna Kumar J. allowed the petition and quashed the sale deed dated 23-08-2006.

 The present petition was filed seeking issuance of any writ, order or direction in the nature certiorari and quash the Resolution dated 10-12-2012 passed by the 2nd respondent Board and approval of Respondent 1 State Govt. dated 10-04-2013 for implementation of the scheme which is post purchase is in violation of section 33 (1) of Karnataka Housing Board Act which prescribes prior/previous approval of the State Government.

Counsel for petitioners Mr. Gurudas Kannur and C R Patil submitted that Section 33(1) of the KHB Act specifically mandates that in respect of Sale Deeds obtained by the KHB from private land owners in a value of more than Rs.5,00,000/- it is absolutely essential of prior approval of the State Government is obtained by the KHB before execution of the Sale Deed. Hence, it is an undisputed fact that no prior approval had been obtained by the KHB prior to / before execution of the Sale Deed and it was only on 10-04-2013 that the State Government granted approval to purchase the land of the petitioner; Section 33(1) of the KHB Act does not contemplate or permit post facto approval of any Sale Deed and consequently, the Sale Deed dated 23-08-2006 is clearly illegal and non-est in the eye of law. It was further submitted that that principles of res judicata are applicable only if there is no violation of any statutory provision and in a given case, where there is violation of statutory provision which has not been considered or adjudicated upon in the previous round of litigation, the said issue with regard to violation of statutory provision cannot be shut out on the technical ground of res judicata.

Counsel for respondents Mr. V S Kalasurmath, Mr. Basavraj Sabard, Mr. H R Gundappa submitted that the petition is barred by res judicata in view of the rejection of the claim of the petitioner’s father in the earlier round of litigation not only by way of the writ petition but also the suit filed by the petitioner’s father before the Civil Court. it was further submitted that the previous rounds of litigation instituted by the petitioner’s father and the petitioner, clearly indicate that repeated attempts are made to challenge the Sale Deed which is nothing but an abuse of process of law and the present petition is liable to be dismissed on this ground also. It is therefore submitted that there is no merit in the petition and that the same is liable to be dismissed.

 The Court relied on judgment Bajaj Hindustan Ltd., vs. State of U.P., (2016) 12 SCC 613 wherein it was observed that the words ‘approval’ includes ratification and ex post facto approval, the words ‘prior approval’ or ‘previous approval’ contemplates mandatory precondition / condition precedent and in the facts of the said case, the Apex Court came to the conclusion that the absence of the word ‘prior’ indicates that ex-post facto approval or ratification was permissible and valid; however, if the provision contemplates previous approval or prior approval, ex post facto approval or ratification would not validate or cure the defect on account of want / absence / lack of prior approval.

The Court observed that a perusal of the said Sale Deed dated 23-08-2006 will indicate that the total value of the sale consideration stated in the said Sale Deed is Rs.2, 07, 64,000/-; it is there clear that before the Sale Deed was executed, prior approval of the State Government was essential in terms of Section 33(1) of the KHB Act. The material on record clearly indicates that no prior approval was obtained by the KHB before execution of the aforesaid Sale Deed in its favour; on the other hand, the said approval was granted by the State Government in favour of the KHB only on 17-10-2012 as can be seen from the communication between the KHB and State Government. It is therefore clear that no prior approval was obtained by the KHB from the State Government before the execution of the subject Sale Deed dated 23-08-2006. The Court observed that in the facts of the instant case, obtaining of previous / prior approval from the State Government by the KHB before execution of the impugned Sale Deed dated 23-08-2006 would clearly invalidate and vitiate the said document and consequently, the same deserves to be quashed.

The Court further observed that absence / lack / want of previous / prior approval by the State Government before executing the impugned Sale Deed dated 23-08-2006 would vitiate and invalidate the said document and mere ex-post facto approval dated 10-04-2013 would not have the effect of ratifying or validating the Sale Deed due to the inherent lacuna / defect in the document at the time of its execution.

On the issue of res-judicata, the Court observed that in view of the material on record which clearly indicates that the issue of the validity of the Sale Deed qua Section 33(1) having not been adjudicated in the previous proceedings coupled with the express liberty / permission / leave granted by this Court, hence it cannot be said that the present petition is barred by res judicata.

 The Court thus directed The impugned Sale Deed dated 23.08.2006 executed by the petitioner’s father in favour of the respondent – KHB is hereby declared as null and void and directed to be cancelled, subject to the condition that the petitioner pays a sum of Rs.1, 07, 64,000/- together with interest at 6% p.a. from 23.08.2006 till the date of payment to the Respondent-KHB within a period of three months from the date of receipt of a copy of this order.”

[Kadasiddeshwara v. Principal Secretary, WP No. 101046 of 2021, decided on 08-10-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Uttarakhand High Court
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]

Patna High Court
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]

Jharkhand High Court
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]

Jammu and Kashmir and Ladakh High Court
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]