Case BriefsHigh Courts

Patna High Court: Mohit Kumar Shah, J., while addressing the instant partition suit decided on the question as to whether:

transferee pendente lite have a right to be added as parties to the partition suit?

Facts

Facts pertinent to the present case were that the plaintiffs-respondents had filed a title suit against the defendants-respondents.

Plaintiffs and main defendants belonged to the branches of two brothers. The suit property belonged to the daughter of Late Tikam Mahton namely Balkesia who was murdered in 1952 and was issueless.

Husband of Balkesia, who predeceased her, gifted the suit property to her vide registered deed of gift dated 18-12-1928.

After her death, the two brothers of Balkesia, namely Late Ramcharan Mahton and Late Beni Mahton, fought tooth and nail for the suit property with Ram Chandra Mahton, Ram Das Mahton, Tuntun Mahton, Sheonath Mahton and Ram Prasad Mahton who claimed to be reversioners of Late Balkesia.

Second Appeal

Good sense prevailed on the parties and the dispute culminated into a compromise decree passed on 22-07-1958 in the second appeal, where the branches of two brothers namely Late Ramcharan Mahton and Late Beni Mahton were given 8 annas share each of the suit property.

Subsequently wife of Late Ramcharan Mahton namely Quadri Devi fraudulently executed some sale deeds in favour of different persons (defendants/respondents) with respect to more land than what had actually fallen in the share of Late Ramcharan Mahton.

Therefore the plaintiffs/respondents were forced to file title suit.

In the above-stated title suit, plaintiffs very cleverly suppressed the subsequent agreement entered into between the Late Ramcharan Mahton and Late Beni Mahton by virtue of which the entire half share of total land, which fell in equal share of the two brothers as per the decree passed in the Second Appeal was relinquished by Late Beni Mahton in favour of his brother late Ramcharan Mahton in lieu of the cost of litigation and Rs 100 paid by Late Ramcharan Mahton.

After the death of Quadri Devi, plaintiffs/respondents chose to file a Tite Suit for half share of the suit property by suppressing the said agreement and misrepresenting facts. In fact, the son of Late Ramcharan Mahton namely Rameshwar Mahton had also died earlier leaving behind his wife and two minor children who were the vulnerable target for the plaintiffs/ respondents.

Analysis and Decision

Bench stated that there is no quarrel or dispute regarding the proposition of law that no period of limitation is prescribed under Order 22 Rule 10 of the Code of Civil Procedure, 1908 inasmuch as the right to apply under the said rule is a continuous right and application can thereafter be made at any stage till the proceedings are pending.

High Court found that the petitioner admitted that the land n question was sold by Quadri Devi, wife of late Ramcharan Mahton to different persons.

Proforma defendant/respondent 15 purchased one katha of land vide registered sale deed dated 20-10-1982 and proforma defendants/respondents 16, 17 and 18 purchased one katha of land vide sale deed dated 14-12-1982.

Petitioners stated to have purchased one katha of land each from defendants/respondents 15 and 16 to 18 who were defendants 10 and 11 to 13 respectively in the title suit, vide two registered sale deeds, both dated 28-11-2001 and thereafter, they sold the said pieces of land by two registered sale deeds both dated 13-02-2012 in favour of Sanjay Kumar Gupta and Punam Rai.

In view of the above Court referred to the Supreme Court decision in Udit Narain Singh Mahapaharia v. Additional Member Board of Revenue, Bihar, AIR  1963 SC 786.

Thrust of arguments of petitioners counsel was that the transferees in the interest of other co-owners acquiring interest during the pendency of a partition suit filed by a co-owner is a necessary and proper party in a partition suit filed by a co-owner, hence the trial court wrongly rejected the petition of the partitioners.

Court stated that in the present case, petitioners are the transferee pendente lite, however, whether they have a right to be added as parties to the partition suit, is the issue to be decided in the present proceedings.

Bench referred to the broad purpose of Section 52 of the Transfer of Property Act which states to maintain status quo unaffected by the act of any party to the litigation pending its determination since if alienations pendente lite are permitted to prevail, it would be impossible to bring an action or suit to a successful termination.

In the decision of Supreme Court, Marirudraiah v. Sarojamma, (2009) 12 SCC 710, it was observed that courts are not supposed to encourage pendente lite transactions and regularise their conduct by showing equity in their favour at the cost of co-sharers.

Doctrine of lis pendens is expressed in the well-known maxim; ‘pendente lite nihil innovature’ which means ‘during pendency of any suit regarding title of a property, any new interest in respect of that property should not be created.

Section 52 of the Transfer of Property Act incorporates the well-known principle of lis pendens, which was enunciated in Bellamy v. Sabine [(1857) 1 De G&J 566: 44 ER 842].

The above-stated doctrine is based upon expediency and it is immaterial whether the transferee pendente lite had or had not any notice of the suit.

This doctrine had or “had not notice of the suit” has been fully expounded by the Privy Council in Faiyaz Hussain Khan v. Prag Narain, (1907) 29 All 339 PC where their lordship quote with approval the observations of Lord Justice Turner is Bellamy’s case.

In the Supreme Court decision of Amit Kumar Shaw v. Farida Khatoon, (2005) 11 SCC 403 it was held that a transferee pendente lite cannot claim his addition in the pending suit as of right, though the Court has the discretion to make him a party, he can be added as a proper party only if his interest in the subject matter of the suit is substantial and not just peripheral.

Court also observed that

“…Courts must be cautious and vigilant and impleadment of a stranger in the partition suit must be for substantial cause and a purchaser pendente lite if impleaded in a partition suit has a very limited right.”

Bench held that, a purchaser pendente lite like the petitioners herein, who have purchased the suit property / a portion thereof from another purchaser/purchaser pendente lite and not from the co-sharer, have no right to equities and thus cannot be impleaded in a partition suit, more so, since the petitioners herein have also alienated the property in question in favour of Sanjay Kumar Gupta and one Punam Rani.

Court added that though the petitioners had already alienated their interest in the suit property vide two sale deeds dated 13-02-2012, before filing the present writ petition, they had suppressed the said fact and obtained a stay, which also disentitles the petitioners to any relief under an equitable and discretionary jurisdiction of the High Court under Article 226 of the Constitution of India.

In view of the above discussion, Court found no infirmity in the impugned order passed by the lower court. [Pushpa Drolia v. Sohrai Mahton, 2020 SCC OnLine Pat 1921, decided on 14-08-2020]

Case BriefsHigh Courts

Patna High Court: The Division Bench of Sanjay Karol, CJ and S. Kumar, J., addressed the vital issue of citizenship with respect to its essentialities and other issues such as whether the State Election Commission is empowered to set aside the election of a person in light of her not being a citizen of India.

Primary Issue for consideration

Whether the appellant is a citizen of India or not?

Other Issues:

  1. Was the State Election Commission empowered to set aside the appellant’s election under Section 136(1) of the Bihar Panchayat Raj Act, 2006 on the ground of her not being an Indian citizen?
  2. Whether voluntarily relinquishing Citizenship of Nepal confers any right of Indian Citizenship upon the appellant?
  3. Can the appellant’s voter ID Card; PAN Card; Aadhaar Card; acquiring education or immovable property in India; having a Bank Account, function as proof of Indian Citizenship?
  4. Whether the appellant was disqualified from being elected to or function as Mukhiya of the Gram Panchayat in Bihar?
  5. Can the appellant’s status of Statelessness be remedied as per Indian Law?

The instant appeal arose from an order and judgment by which the appellant’s writ petition assailing the order of the State Election Commission was dismissed. Appellant’s election was set aside on the ground of disqualification contained under Section 136 1(a) of the Bihar Panchayat Raj Act, 2006.

Appellant was born and brought up in Nepal and after her marriage, she permanently started residing in India.

Issue of appellant’s nationality became the subject matter of challenge in the year 2018 after she was elected as a Mukhiya of Gram Panchayat.

Examination of Issues

ISSUE 1:

Court noted that the appellant herself acknowledged that she was born and brought up in Nepal and wasn’t an Indian Citizen under Sections 3 and 4 of the Citizenship Act, 1955.

Hence, the State Election Commission was empowered to set aside her election as Mukhiya.

Bench added that the issue is no longer res integra in view of the decision Supreme Court’s decision in Rajani Kumari v. State Election Commission, (2019) 4 PJLR 673.

ISSUE 2 and 4:

For the adjudication of issue, Article 10 and 11 are reproduced as under:

“10. Continuance of the rights of Citizenship.— Every person who is or is deemed to be a citizen of India under any of the foregoing provisions of this Part shall, subject to the provisions of any law that may be made by Parliament, continue to be such citizen.

11. Parliament to regulate the right of Citizenship by law.— Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of Citizenship and all other matters relating to Citizenship.”

Section 135 of the Panchayat Act makes it clear that every person whose name is entered in the voters’ list of any Panchayat constituency, unless disqualified under the Act or any other provisional law, shall be qualified to be elected as a member or office-bearer of the Panchayat.

Section 136 of the Panchayat Act commences with a non-obstante clause. The expression used is ‘notwithstanding anything contained in this Act’. If a person entails any one of the disqualifications also enumerated in the said Section, a person will entail disqualification.

For the post of a Mukhiya, the person stands disqualified if she/he is not a citizen of India.

Further, the expression ‘citizen of India’ is not defined under the Panchayat Act. The Constitution of India itself does not confer any right of Citizenship. Hence, the Citizenship Act enacted under Entry 17 of List I of 7th Schedule for acquisition and determination of India Citizenship is to be considered.

Only the Central Government is empowered to confer Citizenship upon the Foreign Nationals. Petitioner admitted that she has not applied for Citizenship under the Citizenship Act.

Adding to the above, Court also stated that the appellant’s case would fall under clause (c) of sub-section (1) of Section 5. She is married to a citizen of India and is ordinarily residing in India for the last seven years. But then, significantly and undisputedly, she never sought Citizenship by way of registration.

An oath of allegiance is necessarily required to be taken by the appellant. Hence, by her actions and conduct, she precluded herself from being considered as a citizen under the Citizenship Act.

Mere relinquishment of original Citizenship cannot be perceived as an intent of seeking Indian Citizenship.

The Citizenship Act does not provide for a scenario where a person residing in India, upon relinquishing her/his original Citizenship is automatically considered to be a citizen of India.

Hence, in Court’s opinion, the appellant failed to follow the procedure as set out in the Citizenship Act.

ISSUE 3:

Whether documents produced by the appellant can form the basis of conferring Citizenship upon her or not. Court stated that in view of the discussion, it cannot be in the affirmative.

In the Supreme Court’s decision of Sarbanda Sonowal v. Union of India, (2005) 5 SCC 665, laid down certain principles in dealing with cases of illegal migrants.

“Burden of proof would be upon the proceedee as he would possess the necessary documents to show that he is a citizen not only within the meaning of the provisions of the Constitution of India but also within the provisions of the Citizenship Act.”

Further, on reading the Representation of the People Act, 1950 it is clear that the name in the electoral roll (voter list)  would not be proof of the Citizenship of India.

“Mere registration of a person’s name in the voter list, ipso facto, does not confer Citizenship.”

The only exception to the above was Supreme Court’s decision in Lal Babu Hussein v. Electoral Registration Officer, (1995) 3 SCC 100, but then, that was peculiar to the attending facts and circumstances, where action for ‘en-masse’ deletion of names of lakhs of voters, who already exercised their right of franchise, was influenced by extraneous consideration and without any proper enquiry.

Purpose of the PAN card is to facilitate the payment of taxes to the Indian State, which foreigners may also be required to pay.

This Court in Narendra Narayan Das v. State of Bihar, AIR 2008 Pat 124, while examining the issue of a citizen of Nepal, held that Citizenship of a foreigner is determined under the Municipal laws of the parent country and not the Indian Citizenship Act.

The eligibility criteria for obtaining an Aadhaar Card is residency in India for a period of 182 days or more, not citizenship.

Section 9 of the Aadhaar Act, 2016 clearly states that an Aadhaar number or authentication thereof shall not by itself confer any right of or be proof of Citizenship or domicile of the Aadhaar number holder.

Hence, the appellant cannot rely on her PAN card and Aadhaar Card as proof of Indian Citizenship.

Further, Bench also held that, mutating name in the register is only proof of ownership of property and is silent on the status of Citizenship of person to whom property is transferred.

Supreme Court in Hari Shanker Jain v. Sonia Gandhi, (2001) 8 SCC 233, held that even a certificate of registration under Section 5(1)(c) of the Citizenship Act may be challenged in an election petition under Section 82(1) (a) of the Representation of the People Act, 1951.

Hence issue 3 was not answered in the appellant’s favour.

ISSUE 5:

Appellant had surrendered her Nepali Citizenship in 2016 but failure to meet the requirements for Indian Citizenship by registration coupled her surrender of Nepali Citizenship, left her citizenship status in limbo.

The facts of the present case represent the appellant’s intention to make India her permanent home/domicile.

There is an additional bureaucratic hurdle in registering herself under the Citizenship Act – the documents to be attached for an application under Section 5, per Form III under Rule 5(1)(a) of the Citizenship Rules, 2009, include a copy of valid Foreign Passport and a copy of the valid Residential permit.

To re-obtain her Nepalese Citizenship, she will have to return to “reside” in Nepal before applying for Citizenship, away from her immediate family in India.

Hence, in view of the above, the Court held that it is not permitted to direct the Central Government to grant the petitioner Indian Citizenship as that would impinge upon the Executive’s functions.

Complications in legal status

Parting with the decision, and on observing the peculiar situation of the petitioner and in order to prevent statelessness, Court directed that upon receipt of petitioner’s application, the appropriate authority may consider her application expeditiously.

Gist of answers for the issues raised

  • State Election Commission was empowered to set aside the petitioner’s election on the specified ground under Section 136(1) of the Panchayat Act of her not being an Indian citizen.
  • Mere relinquishment of Citizenship of Nepal does not confer upon any right of Indian Citizenship.
  • Mere possession of a Pan Card; a Voter ID Card; or an Aadhar Card cannot be said to be proof of Indian Citizenship.

In view of the above, the present appeal was disposed of.[Kiran Gupta v. State Election Commission, 2020 SCC OnLine Pat 1641, decided on 12-10-2020]


Counsel for the Appellant: Advocates, Rajes Singh, Ranvijay Narain Singh, Jitendra Singh and Ranjeet Choubey.

Counsels for the State Election Commission: Amit Shrivastava and Girish Pandey, Advocates.

For the State: Lalit Kishore, A.G. and Pawan Kumar AC to AG.

Case BriefsHigh Courts

Patna High Court: In a petition alleging Section 234E of the Income Tax Act, 1961 to be unconstitutional, ultra vires and in contravention of the Constitution of India, Division Bench of Sanjay Karol, CJ., and S. Kumar, J., disposed of the petition refuting all the said allegations and upholding Section 234E as constitutionally valid.

Two fold submissions have been made by the petitioner in the present petition which are (1) constitutional validity of Section 234E of the Income Tax Act, 1961 is challenged; (2) Initiation of proceedings under Section 200A of the Income Tax Act, 1961 is bad in law.

The factual matrix in the present matter is such that a fee for default in furnishing statement under heading Levy of fee in certain cases in chapter XVII-Collection and Recovery-Interest Chargeable has been levied on the petitioner and the same has been challenged.

While dealing with the first issue whereby the constitutional validity of Section 234E of the Income Tax Act, 1961 has been challenged, the Court found no substance in the said contention raised by the petitioner. It is held that under no circumstances can it be implied that the aforementioned statute has was passed by an incompetent legislature or that it has infringed the rights guaranteed under Part III of the Constitution of India. Section 234E is reproduced below for reference-

“234E. Fee for default in furnishing statements.

—(1) Without prejudice to the provisions of the Act, where a person fails to deliver or cause to be delivered a statement within the time prescribed in sub-section (3) of section 200 or the proviso to sub-section (3) of section 206C, he shall be liable to pay, by way of fee, a sum of two hundred rupees for every day during which the failure continues.

(2) The amount of fee referred to in sub-section (1) shall not exceed the amount of tax deductible or collectible, as the case may be.

(3) The amount of fee referred to in sub-section (1) shall be paid before delivering or causing to be delivered a statement in accordance with sub-section

(3) of section 200 or the proviso to sub-section (3) of section 206C.

(4) The provisions of this section shall apply to a statement referred to in sub-section (3) of section 200 or the proviso to sub-section (3) of Section 206C which is to be delivered or caused to be delivered for tax deducted at source or tax collected at source, as the case may be, on or after the 1st day of July, 2012.”

Further, relying on the position adopted by other Indian Courts of law while settling a similar issue in a string of case laws, the Court dismissed this contention raised by the petitioner basis the judgments delivered in the cases of Rashmikant Kundailia v. Union of India, (2015) 373 ITR 0268 (Bom), Dr Amrit Lal Mangal v. Union of India, (2015) 235 Taxman 0410 (P &H) and Biswajit Das v. Union of India, (2019) 413 ITR 0092 (Delhi).

Now with respect to the second contention of the petitioner that the proceedings under Section 200A of the Income Tax Act, 1961 is bad in law, the counsel for the petitioner, D.V. Pathy has submitted that the petitioner will be taking recourse under the statutory remedy that is available to him. He pleads for the issue of limitation to be relaxed.

Counsel of the respondents, Archana Sinha has submitted that the issue of limitation shall not be raised during the proceedings given that the petitioner takes recourse under the statute within a period of thirty days from the date of passing of this order.

In view of the facts, circumstances, authorities cited and the arguments advances, the Court disposed of the petition with the direction that the subject of limitation shall not come into the picture if statutory proceedings are initiated within a period of thirty days from the date of this order.[L.N. Sales Pvt. Ltd. v. Union of India, 2020 SCC OnLine Pat 1232, decided on 20-08-2020]

Appointments & TransfersNews

Transfer Order

President with the consultation of Chief Justice of India, transfers Justice Rakesh Kumar, Judge of Patna High Court as a Judge of the Andhra Pradesh High Court.

He has been directed to assume the charge of the office on 13-11-2019.


Ministry of Law and Justice

[Notification dt. 30-10-2019]

Appointments & TransfersNews

President appoints the following four lawyers as the Judges of Patna High Court:

  • Anjani Kumar Sharan
  • Anil Kumar Sinha
  • Prabhat Kumar Singh
  • Partha Sarthy

The above-mentioned are to be Judges of the Patna High Court, in that order of seniority, with effect from the date they assume charge of their respective offices.

Ministry of Law and Justice

[Order dt. 15-04-2019]

Appointments & TransfersNews

President appoints the following Additional Judges of the Patna High Court as Permanent Judges of the Court:

  1. Anil Kumar Upadhyay
  2. Rajeev Ranjan Prasad
  3. Sanjay Kumar
  4. Madhuresh Prasad
  5. Mohit Kumar Shah
  6. Prakash Chandra Jaiswal

[Notification dt. 05-04-2019]

Ministry of Law and Justice

Appointments & TransfersNews

Proposal for appointment of following 6Advocates, as Judges of the Patna High Court:

  1. Shri Anjani Kumar Sharan
  2. Shri Anil Kumar Sinha
  3. Shri Rajendra Kumar Giri
  4. Shri Prabhat Kumar Singh
  5. Shri Partha Sarthy
  6. Shri Vikash Kumar

On the basis of interaction and having regard to all relevant factors, the Collegium is of the considered view that S/Shri (1) Anjani Kumar Sharan, (2) Anil Kumar Sinha, (3) Prabhat Kumar Singh and (4) Partha Sarthy, (mentioned at Sl. Nos. 1, 2, 4 and 5 above) are suitable for being appointed as Judges of the Patna High Court.

As regards S/Shri (1) Rajendra Kumar Giri, and (2) Vikash Kumar (mentioned at Sl.Nos. 3 and 6 above), having regard all relevant factors and the material placed in the file, the Collegium is of the considered view that the proposal for their elevation deserves to be remitted to the Patna High Court. The Collegium resolves to recommend accordingly.

[Notification dt. 01-04-2019]

Collegium Resolutions

Appointments & TransfersNews

Proposal for appointment of following six Additional Judges of the Patna High Court, as Permanent Judges of that High Court:

1. Mr Justice Anil Kumar Upadhyay
2. Mr Justice Rajeev Ranjan Prasad
3. Mr Justice Sanjay Kumar
4. Mr Justice Madhuresh Prasad
5. Mr Justice Mohit Kumar Shah and
6. Mr Justice Prakash Chandra Jaiswal

The Committee constituted in terms of the Resolution dated 26th October, 2017 of the Supreme Court Collegium to assess the Judgments of the above-named recommendees, has submitted its report.

In view of the report, the Collegium comprising of Ranjan Gogoi, CJ and S. A Bobde and N.V. Ramana, JJ., resolved to recommend that Mr Justices (1) Anil Kumar Upadhyay, (2) Rajeev Ranjan Prasad, (3) Sanjay Kumar, (4) Madhuresh Prasad, (5) Mohit Kumar Shah, and (6) Prakash Chandra Jaiswal, Additional Judges, be appointed as Permanent Judges of the Patna High Court against the existing vacancies.

Collegium Resolutions

[Dated: 11-03-2019]

Supreme Court of India

Case BriefsHigh Courts

Patna High Court: The 3-judge bench of I. A. Ansari ACJ, Chakradhari Sharan Singh and Navaniti Prasad Singh, JJ upheld the validity of Invoking the provisions as contained in Sub-section (3) of Section 197 , the Notification dated 16.05.1980 issued by Bihar Government, invoking the provisions as contained in Sub-section (3) of Section 197 CrPC, which direct which declared that the provisions of sub-section (2) shall apply to no court can take cognizance of the offence committed by “Officers and men” wherever they may serving the State of Bihar or the Bihar Police Force, such class or category of the members of the Forces charged with the maintenance of public order of the Code of Criminal Procedure, while performing his official duty, except by the prior sanction of the State Government. , a notification of Bihar Government, issued in 1980. The bench of three judges I. A. Ansari ACJ, Chakradhari Sharan Singh and Navaniti Prasad Singh, J J upheld the order of Chief Judicial Magistrate.

The petitioner who was posted as Officer-in-charge of Government Rail Road Station, in Muzaffarpur was charged under offences punishable under Sections 147, 323, 353, 342 and 379 of the Penal Code, 1860 by and the Chief Judicial Magistrate took the cognizance of the matter without prior sanction. The petitioner, relying on the impugned Notification, under section 482 of the Cr.PC moved to Patna High Court where the Single Judge referred the matter to the Division Bench which was later transferred to a larger bench. The Court took reliance with of the case of ruling in of Om Prakash and others v. State of Jharkhand, (2012) 12 SCC 72 and held that The notification, dated 16.05.1980, cannot be held to be beyond the scope and/or powers conferred on the State Government under Sub-section (3) of Section 197 CrPC of the Code of Criminal Procedure, the same having been applied by Supreme Court in case of Om Prakash vs. State of Jharkhand (supra) and criminal prosecution having been quashed against police personnel on that ground. We are mindful of the fact that the question of jurisdiction of the State Government to issue notification, granting protection to police personnel in exercise of power under section 197(3) of the CrPC., was neither raised nor decided. The Court further said that in view of the said notification, the previous sanction of the offences alleged to have been committed by the Police Officers, while acting or purporting to act in discharge of his official duty, is a condition precedent.
Hence, the Court held that the Chief Judicial Magistrate erred by taking cognizance of the matter without the prior sanction of the State Government and hence, quashed the impugned order. the Court held that under Section 197 (2) of CrPC that any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government uphold the Bihar Notification and quashed the order of the Chief Judicial Magistrate. [Ram Rekha Pandey vs. State of Bihar, 2016 SCC OnLine Pat 2130, dated on 26th June,26.06. 2016]