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]