Case BriefsHigh Courts

Punjab and Haryana High Court: Anil Kshetarpal, J., while addressing the instant petition against the impugned order of Deputy Commissioner expressed that, “Compassionate empathy should be one of the trait/quality of everyone manning a public office. The persons holding such offices are required to be more sympathetic and compassionate while dealing with downtrodden and uneducated persons.”

 Facts of the case are such that, the petitioner was in possession of a small building and Haryana Wakf Board was owner of the land underneath that building. The grievance of the petitioner was that since level of the road, passing in front of the building, had been increased, therefore, rainy/dirty water started getting accumulated in the premises and the building had also developed certain cracks. In spite of several applications for permission to reconstruct the said building, no response had been received from the officials of Municipal Committee. Therefore, construction work was carried out by the petitioner, to which the Municipal Committee had sent a notice under Section 208 of the Haryana Municipal Act, 1973 (“the Act”) directing the petitioner to stop the construction and demolish whatever construction had already been carried out. The Petitioner again requested for approval and submitted a building plan, which was rejected on the grounds that the building plan had been filed without deposit of the required fee and the petitioner had failed to provide evidence of ownership. Consequently, the premise was sealed by the authorities. The petitioner filed an appeal before the Deputy Commissioner, which was dismissed with the finding that there was no error in the order of Municipal Committee.

The Court observed that, “the entire emphasise of the legislature while enacting the Haryana Municipal Act, 1973 was to encourage the residents to erect the buildings after getting the building plan sanctioned and if some buildings have been erected or re-erected in violation thereof and such construction is found within the permissible limits, then the construction should be regularised or the violation should be compounded and the officials are expected to deal with such violation with compassion in such matters.” The Court said, Municipal Committee had failed to draw attention of the Court to any requirement of law requiring a person who had applied for sanction of the building plan, to prove his ownership before the building plan could be sanctioned. Further, it was held that, till the time the petitioner continues to be in possession of the said land he is entitled to repair/ renovate/reconstruct the building existing therein. Setting aside the order passed by the Municipal Committee and affirmed by the Deputy Commissioner, the Court stated that sealing of the property was undoubtedly arbitrary exercise of power. Hence, the petition was disposed of with further directions that the petitioner should submit a fresh application for post facto approval of the building plan for within one month from the date of the judgment and the officials of Municipal Committee were directed to process the same in accordance with law within 6 months. [Devender Kumar v. State of Haryana, Civil Writ Petition No.36932 of 2019(O&M), decided on 16-12-2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ has held that to prove the case under the Narcotic Drugs & Psychotropic Substances Act, 1985 (NDPS Act), the ownership of the vehicle is not required to be established and proved.

The Court was hearing the case wherein accused were convicted for commission of offence under Section 20(b)(ii)(B) of the NDPS Act, having in their possession 20 kg each prohibited Narcotic Substance – Ganja.  As per the case of the prosecution, 20 kg of Ganja was recovered from the possession of the appellant from the motorcycle. It was argued that the prosecution having failed to prove the ownership of the motorcycle (vehicle) and/or failed to recover the motor cycle   subsequently, vitiates the prosecution case.

Taking note of the fact that in the present case the appellant and the other accused persons were found on the spot with the contraband articles in the vehicle, the Court said that it is enough to establish and prove that the contraband articles were found from the accused from the vehicle purchased by the accused. Ownership of the vehicle is immaterial. What is required to be established and proved is the recovery of the contraband articles and the commission of an offence under the NDPS Act. Therefore, merely because of the ownership of the vehicle is not established and proved and/or the vehicle is not recovered subsequently, trial is not vitiated, while the prosecution has been successful in proving and establishing the recovery of the contraband articles from the accused on the spot.

[Rizwan Khan v. State of Chhattisgarh, 2020 SCC OnLine SC 730, decided on 10.09.2020]

Case BriefsHigh Courts

Orissa High Court: Dr A.K. Rath, J. dismissed an appeal seeking to reverse a judgment relating to suit for declaration.

In the present facts of the case, the suit property was jointly recorded in the names of three cousin brothers, wherein the Odisha Record of Rights (ROR) had been published. The partition of the said property was effected amongst the members of the joint family by a registered partition deed and was allotted to one of the three cousin brothers, Baidhar. Due to the untimely death of the wife and son of Baidhar, he resided in the property with the plaintiff and out of love and affection, Baidhar executed a will in favour of the plaintiff. After the demise of Baidhar, the plaintiff became the owner in possession of the suit property. Erroneously, the R.O.R recorded jointly in the name of both the parties and thus, the plaintiff filed an application for declaration of suit. The Learned trial court dismissed the suit holding that the will was not probated and the plaintiff had not acquired by way of adverse possession. In the appeal proceedings, the appellate court also held that the plaintiff had failed to prove that he has perfected title by way of adverse possession and during the pendency of the appeal proceedings both the plaintiff and the respondent expired due to which their legal representatives had substituted.

During the present matter, the counsel representing the appellants, Sarojananda Mishra submitted that the plaintiff is in possession of the suit land for more than twelve years peacefully and as a result has perfected title by way of adverse possession.

The advocate representing the respondents, Stayabadi Mantry, objected to the same and submitted that the adverse possession is a mixed question of law and fact. Thus, the courts had rightly rejected the claim of the plaintiff. He placed reliance on the case of Nabin Chandra Mohanta v. State of Orissa, R.S.A. No. 396 of 2004 wherein the Court held that, “Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence”.

The present Bench upon perusal of the facts and the records stated that even if the plaintiffs are found to be in adverse possession, they cannot seek a declaration for the same. The Court also stated that the mere possession of suit property for a long period of time is not sufficient to declare the plaintiff has perfected the title by way of adverse possession unless the classical requirements of adverse possession are met and the question of adverse possession not only involves question of law but also involves question of fact. [Bairagi Charan Mohapatra v. Surendra Mohapatra, 2019 SCC OnLine Ori 303, decided on 01-08-2019]

Case BriefsHigh Courts

Gauhati High Court: Sanjay Kumar Medhi, J. dismissed an appeal filed against the judgment of the Additional Chief Judicial Magistrate whereby he had acquitted the accused-respondents of the charges under various sections of IPC including Section 447 (punishment for criminal trespass).

The complainant-appellant had alleged that the accused came in a group armed with sticks and spades, and they dispossessed the complainant from his plot of land. The accused were tried for various offences. The trial court, however, acquitted them of all the charges. Aggrieved thereby, the complainant filed the present appeal.

R. Goswami, Advocate, made contentions on behalf of the appellant. Per contra, A. Choudhary, Advocate, represented the accused-respondents.

The High Court noted that though the allegation of criminal trespass was made, the ingredients of criminal trespass did not appear to be made out. Also, a meeting was convened between the parties to decided the ownership of the subject land which was unsuccessful. Therefore, opined the Court: “In absence of a determination of ownership, the allegation of trespassing cannot be substantiated.” It was observed: “To bring home the charge of trespass, it has to be established that there has been unlawful entry upon a property which is in the possession of another and such unlawful entry should be with an intent to commit an offense or to intimidate, interested or annoyed possessor of the property.”

In the present case, there was no evidence to prove the aforesaid ingredients of trespass. It was also transpired that the parties were related to each other. In Court’s opinion, the impugned judgment being based on the reasons germane to the facts and circumstances of the case, the interference with the same was not warranted. The appeal was consequently dismissed.[Biswajit Paul v. State of Assam, 2019 SCC OnLine Gau 3011, decided on 25-07-2019]

Case BriefsHigh Courts

Karnataka High Court: The Bench of Krishna S. Dixit, J., allowed petition filed by a senior citizen challenging wrongful usurpation of his property.

Respondent herein had unauthorizedly appropriated petitioner’s land measuring 63,162 square feet without any acquisition process, for the formation of roads, parks. Petitioner was given no compensation for his land even after 16 years of acquisition. Aggrieved thereby, he filed the instant petition seeking restoration of his land and compensation of Rs 5 crores for illegal utilization of his land.

Petitioner’s contention was that respondent’s act was a gross violation of his constitutional right to property guaranteed under Article 300-A of the Constitution of India.

The Court took note of respondent’s resolution proposing to give 50 percent of the site area to petitioner and observed that instead of taking steps for implementation thereof, respondent passed another resolution stating that in view of one government order, petitioner would be granted 50 percent of the developed area, which was unconscionable. The second resolution was also not given effect.

It was opined that the institution of private property is the focal point of constitutional jurisprudence. Forcible or non-consensual taking away of property by the State or its instrumentalities, sans lawful acquisition process offends the pith and substance of Article 300-A which guarantees protection to private property from State interference. It was held that State and its instrumentalities cannot justify usurpation of private property without legal process on the ground that the same was for public use.

In view of the above, the respondent was directed to give ownership and possession of the developed area of subject land to the petitioner and pay Rs 1 lakh as damages.[P.G. Beliappa v. Bangalore Development Authority, 2019 SCC OnLine Kar 187, Order dated 01-03-2019]

Case BriefsHigh Courts

Patna High Court: The Bench of Ahsanuddin Amanullah, J. dismissed an application filed under Section 482 of the Code of Criminal Procedure, 1973 praying for quashing of trial court’s order whereby prayer made by the petitioner regarding the release of a vehicle was dismissed.

In the instant case, OP-3 had filed a complaint alleging that opposite party 2 (OP-2) had taken a Scorpio vehicle belonging to him on the pretext of marriage in family assuring that he would return it. The vehicle was not returned and OP-3 was told by OP-2 that it had been stolen. OP-3 was assured that the vehicle would be located or OP-2 would pay him money for the same. On enquiring, OP-3 found that the vehicle had been allegedly sold to the petitioner and was with him. The vehicle was seized by the police pursuant to the lodging of FIR by OP-3.

The Court noted that the purported agreement of sale of vehicle relied upon by the petitioner was not even duly registered. Further, the certificate of registration for the vehicle was still in the name of opposite party 3.

It was held that the only document to prove ownership of a vehicle is a certificate issued by the transport department, i.e., the certificate of registration. Till such time the name of any other person is not duly entered in the official records and reflected in the certificate of registration with regard to the vehicle, vehicle could not be released in favour of a person who comes before with an unregistered agreement for sale of vehicle. [Md. Abdullah v. State of Bihar, 2019 SCC OnLine Pat 51, Order dated 17-01 2019]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Arun Mishra and Indira Banerjee, JJ. allowed an appeal while setting aside the judgment and order of the Kerala High Court concerning a ‘gift deed’.

In the present case, the facts of the case are that the appellant executed a purported gift deed in favour of the respondent with the expectation that the respondent will look after the appellant and her husband. The said deed was to come into effect only after the death of the appellant and her husband. On 02-06-1999, the appellant executed the deed of cancellation and after a period of 8 months, respondent filed a suit for declaration that the cancellation deed executed by the appellant is null and void. Appellant filed original suit for permanent injunction restraining the respondent or his men from trespassing or committing waste or mischief in suit property.

The Original Suit was challenged before the Munsif, however, it was decreed. The district court upheld the decree, but the High Court set aside the concurrent findings and dismissed the suit.

The Supreme Court on placing the analysis of provisions of Transfer of Property Act along with the decisions pertaining to the same subject matter stated that:

“A conditional gift with no recital of acceptance and no evidence in proof of acceptance, where possession remains with the donor as long as he is alive, does not become complete during lifetime of the donor. When a gift is incomplete and title remains with the donor the deed of gift might be cancelled.”

On placing reliance on Reninkuntla Rajamma v. K. Sarwanamma, (2014) 9 SCC 445, in which it was stated that “there is no provision in law that ownership in property cannot be gifted without transfer of possession of such property”, the Court stated that the deed of transfer was executed for consideration and was, in any case, conditional subject to the condition that the donee would look after the petitioner and her husband and subject to the condition that the gift would take effect after the death of the donor. Therefore, the Court held that there was no completed gift of the property and the appellant was within her right in cancelling the deed.

The appeal was allowed and judgment and order under appeal were set aside. [S. Sarojini Amma v. Velayudhan Pillai Sreekumar,2018 SCC OnLine SC 2200, decided on 26-10-2018]