Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): A Division bench of Justice R.K. Agrawal (President) and S.M. Kanitkar (Member) directed the developer to refund the principal amount along with compensation in the form of 9% p.a. interest and 25,000 as litigation costs in view of a 4-year delay in giving the possession of the apartment.

Consumer complaint was filed against Pioneer Urban Land and Infrastructure Limited.

Complainants booked an apartment in the Pioneer Group Housing Project called “Araya” for an amount of Rs 30,00,000. Pursuant to the execution of apartment buyer’s agreement, a unit was allotted to the complainants.

Complainants submitted that on visiting the site regularly they were surprised to see no progress in the construction of the project. Entire site seemed to be an abandoned piece of land with semi constructed structure. 

Failed to deliver the possession of Apartment

Till 16.12.2015 complainants had paid a sum of 3,22,18,954 out of the total consideration of 3,45,22,779 i.e. almost 95% of the total Consideration towards the cost of the apartment.

However, the Developer failed to deliver the possession of the Unit, complete in all respect, even after expiry of a long period of approx. five years despite repeated requests and remedies over letters, email, phone calls and personal visits.

Hence, in view of the above, complainants alleged deficiency in service on the developer’s part.

Complainants by the present petition sought more than contractual benefits from the developer.

Natural causes

Developer contended that the delay in completing the project was due to reasons beyond their control. Further, for refund and compensation, the Complainants have to adhere to the provisions made in Clause 11.5 of the Agreement.

Clause 11.5 of the Apartment-Buyer’s Agreement

Bench observed that, with regard to Clause 11.5 of the Agreement upon which the reliance has been placed by the Developer for refund and compensation payable to the Complainants, this Commission in Consumer Complaint No. 2000 of 2016 – Geeta Bansal v. Ireo Grace Realtech (P) Ltd.  – decided on 24-09-2018,  held that such a Clause is wholly one sided and unfair and, therefore, the Complainants would not be bound by the same. If the Developer is unable to justify the delay, this Commission would be competent to direct refund of the amount paid by them to the Developer along with appropriate compensation.

However, Pioneer had approached Supreme Court against the decision taken by Commission in the above Order, but Supreme Court affirmed the finding returned by this Commission and dismissed the Civil Appeals.

Hence, in the present matter, commission referring to the Supreme Court’s decision, allowed the complainant and directed the OP-Developer to refund the principal amount with compensation in form of simple interest @9% p.a. with costs of Rs 25,000 to be pid to the complainants.

Interest was awarded in light of the current market situation and three months times has been granted to the developer to refund the same. [Smita Uban v. Pioneer Urban Land & Infrastructure Ltd., Consumer Case No. 1430 of 2017, decided on 23-07-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Prem Narain, Presiding Member, has directed the developers of “Greenopolis” to refund homebuyers their amount deposited at the interest rate of 9% p.a. and in a few complaints the bench has asked for the possession to be handed over by 30-09-2020 with the occupancy certificate and with a delayed penalty of 6% p.a. on the deposited amount.

Consumer Complaints

Allottees of the project “Greenopolis” situated in Gurgaon alleged deficiency in service on the part of Opposite parties — Three C Shelters (P) Ltd.

Original allottee booked an apartment in OP’s project for a consideration of Rs 87,16, 800/-, apartment was allotted and later the same was endorsed in favour of complainant.

OP’s failed to deliver the possession in 42 months inclusive of 6 months grace period. Till date, the complainant has paid Rs 75,96,776/- to OP’s.

Several complaints have been filed by homebuyers with regard to no delivery and possession of the apartments for which they have paid installments of a very huge amount.

Analysis and Decision

No breach of agreement by complainants | Entitled to relief under Sections 54 and 55 of the Indian Contract Act, 1872

Argument with regard to Sections 54 and 55 of the Indian Contract Act, 1872, OPs relied on the Commission’s decision in DLF Southern Town (P) Ltd. v. Dipu C. Seminal, wherein the complainant had deposited only the booking amount and no installments were paid whereas in the present complaints installment have been paid upto reasonable limit and on no progress in construction, the payment was stopped later.

Force Majeure

Defence of force majeure by OPs cannot be taken as there was no ban on construction and OPs should have put their resources and managerial skills to bring water from outside to complete the construction in time.

Joint Project

Three C Shelters (P) Ltd. pleaded for force majeure conditions for the delay and on the other hand Orris Infrastructure (P) Ltd. pleaded that Three C Shelters was responsible for delay in construction. Both of them had signed on the “Apartment buyer Agreement” and hence Commission stated that both of them were responsible for delay.

Apartment Buyer Agreement

Bench observed that the OP’s clearly have failed to complete the project and give the possession in time to the homebuyers as per the Apartment Buyer Agreement.

Hence allottees have the right to ask for a refund due to the inordinate delay which has been beyond 1 year, the possession was to be given in the year 2016.

No Forfeiture of earnest money

So far as the question of forfeiture of earnest money is concerned, it is seen that the complainants are seeking refunds as the project has been inordinately delayed. Even though the RERA, Haryana has taken a meeting to expedite the project and Three C Shelters (P) Ltd. has agreed to complete the project in phases.

Commission noted that OPs have not paid EDC and IDC to the Government and it seems that the OPs were not serious in timely completing the project. Thus, in these circumstances, there can be no question of forfeiture of earnest money.

Supreme Court in Haryana Urban Development Authority v. Diwan Singh, (2010) 14 SCC 770, observed that subsequent buyers are entitled to receive interest only after the date of endorsement in their favour.

In view of the above, Commission directed Three C Shelters to refund the amount at 9% interest per annum.

In one of the cases, Orris Infrastructure (P) Ltd. is directed to complete the construction work and handover the possession till 30-09-2020 after obtaining an occupancy certificate, and it shall pay interest of 6% p.a. on the deposited amount.

If the possession is not delivered till 30-09-2020, the complainant shall be at liberty to take a refund of the total deposited amount Rs 77,58,581/- along with interest @ 9% p.a. from the date of respective deposits till actual payment. [Sanjay Gupta v. Three C Shelter (P) Ltd., 2020 SCC OnLine NCDRC 178, decided on 20-07-2020]

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Sangeet Lodha and Mahendar Kumar Goyal, JJ. dismissed an appeal regarding irregularity of a suit for declaration of land under Sections 88 and 188 of the Rajasthan Tenancy Act, 1955 belonging to a Scheduled Caste member while also finding no illegality in the earlier Single Bench Judgment of the same Court.

In this case, the appellant had filed a suit for declaration and was also seeking correction of the entry in the revenue record in the Court of Sub-Divisional Officer, Sikar. The appellant stated that there was an erroneous entry in the Jamabandi as neither the defendant 2 was in possession nor he was sold any land. The suit was eventually decreed by the Court of Sub-Divisional Officer. The appeal against it was subsequently rejected first by the Revenue Appellate Authority and then by the Board of Revenue. But later on, the District Collector allowed the application of the defendants setting aside the previous judgment. This was appealed against in the High Court in which a Single Bench upheld the Judgment, but then an intra-court appeal was preferred.

The counsel for the appellant R.K. Agarwal contended that the reference made under Section 82 or under Section 232 of the Rajasthan Tenancy Act, 1955 was not maintainable in absence of any public element involved. He also asserted that there was an inordinate delay of about 19 years in making the reference which was fatal. He also stated that since there was no transfer of the land in question, as stipulated under the Transfer of Property Act, 1882, by a member of Scheduled Castes/Scheduled Tribes in favour of a non-member, the judgment of Court of Sub-Divisional Officer could not have been set aside.

The counsel for the defendant R.P. Singh contended that the pleadings of the appellant have been self-contradictory, first that the land exists in two different places and again that there was no sale between the two. The counsel further contended that it is apparent that the judgment of the Sub-Divisional Officer was obtained by the appellant playing fraud and collusion, which was accepted by the Revenue Authorities as well as by the learned Single Judge of this Court and thus it cannot be sustained. Lastly, the learned Senior Counsel contended that the Court cannot restore the order of the Court of Sub-Divisional Officer which, per-se, was illegal and the Court would not like to restore an illegal order. He, therefore, prayed that the special appeal to be dismissed.

The Court observed that the appellant had consistently taken inconsistent pleas such as the stand that he was in the possession of the land; and that the land was not in two parts. Therefore, the Court opined that the appellant has come with a dishonest plea with regard to his possession over the disputed land and so his contention with regard to possession over half of the land, had no merit.

The Court also accepted the findings of the Revenue Authorities as well as by the learned Single Judge that the previous judgment of Sub-Divisional Officer obtained was a fraudulent one. The Court also remarked that there is no limitation prescribed under Section 82 of the Act to make reference although it has to be exercised within a reasonable time. Also, the Court found no illegality in an order dated passed by the Board of Revenue in 2001. The Court further relied on Pandey Oraon v. Ram Chander Sahu, 1992 Supp (2) SCC 77 and analysed the word ‘transfer’.

At last, the Court said that the judgment that was obtained by playing fraud, cannot be saved by applying the principle of the merger. They opined that the law will take its own course and no direction in this regard was warranted from the Court. For these reasons, the appeal was dismissed. [Vidhyadhar Sunda v. State of Rajasthan, 2020 SCC OnLine Raj 76, decided on 16-01-2020]

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 BriefsTribunals/Commissions/Regulatory Bodies

National Consumers Disputes Redressal Commission (NCDRC): The Bench comprising of Justice R.K. Agrawal (President) and M. Shreesha (Member) while addressing a complaint filed under the Consumer Protection Act stated that:

“Complainants cannot be made to wait indefinitely for possession of the unit, as the construction is yet to be completed even after a period of more than 6 years has lapsed from the date of booking.”

The present complaint was filed against the “Developer” and “Construction Company” under Section 21(a)(i) of the Consumer Protection Act, 1986.

In accordance with the facts of the case, Complainant had been looking for residential accommodation in Gurgaon, wherein he wanted to reside after his return from Tokyo, Japan. Complainant on his return to India booked a residential apartment of 5450 sq. ft. and paid an amount of Rs 4,12,98,926 by 03-09-2015.

It has been averred that, Flat Buyer’s Agreement was executed between the Developer and Complainant on 19-02-2013 and as per Clause 12 of the agreement, the possession of the apartment was to be delivered within 36 months with an additional grace period of 6 months, which ended on 19-08-2016.

Adding to the above, in December 2015, the complainant visited the site to see the development work and was shocked to see that the construction work had been completely stopped since January 2015. Complainant visited the corporate office of the developer and was informed that due to disputes with Construction Company, they had terminated the contract with them. The complainant was further assured that a new construction company would complete the balance work and the complainant shall receive the possession in terms of the agreement by February 2016 or at least within the extended period.

Again in January, 2017 complainant was disappointed to observe that no work was being carried out and he was assured by the officials of the “Developer” that the new construction company would complete the balance work. Once again in April 2018, on visiting the construction site he found that the site office was locked.

Thus, on multiple failures by the developer to respect the agreement in regard to the construction of the flat, Complainant had to send a legal notice to the Opposite Parties and further vexed with the attitude of the OP’s, the complainant approached the Commission.

Siddharth Yadav and Wasim Ashraf, Counsel appearing on behalf of the Complainants argued that despite repeated attempts to contact the “Developer” and seeking information regarding the progress of construction, there was no response for the same.

Commission in view of the above, relied on the decisions of the Supreme Court case in Pioneer Urban Land & Infrastructure Ltd. v. Govindan Raghavan, (2019) 5 SCC 725 and Kolkata West International City (P) Ltd. v. Devasis Rudra, (2019) CPJ 29 (SC), and opined in regard to the instant case that, “Complainants cannot be made to wait indefinitely for possession of the unit, as the construction is yet to be completed even after a period of more than 6 years has lapsed from the date of booking.”

Further, the Commission added to its observation that, there has been a deficiency of service on behalf of the OP’s. However, since the amounts were paid to the “Developer” the liability is fastened on the developer and not the “Construction Company”.

With the above, Complainant is allowed in part directing the “Developer” to refund 4,12,98,926 with interest at 12% p.a. from the respective dates of deposit till the date of realisation. [Alok Kumar v. Golden Peacock Residency (P) Ltd., 2019 SCC OnLine NCDRC 314, decided on 06-09-2019]

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

Kerala High Court: Devan Ramachandran, J. entertained the instant writ petition filed in lieu of the judgment which the petitioner did not comply with, hence, the bank had took the physical possession of the residential property.

The case of the petitioner was that the respondent-bank took the possession of the petitioner’s house as the loan was not repaid in time thus, the petitioner pleaded that due to such act of the petitioner he and his family including two young children had no place to live. He, therefore, pleaded that the respondent – Bank to be directed to regularize the loan account, by allowing him to pay off the over dues in a few installments and that they be further directed to hand over physical possession of the house to him.

On the contrary, the counsel for the respondent K.V Anil submitted that no latitude can normally be shown to the petitioner because, he had willfully disobeyed the directions of the Court. But it was further contended that if the petitioner was ready to pay the overdue immediately, an indulgence, could be shown to him. It was submitted that if the petitioner was ready to pay 50% of the total amount due, the physical possession can be given back of the secured asset. He added that the balance can be allowed to be paid in not more than 10 equal monthly installments, along with the regular EMIs.

Liza P.Cheryan, counsel for the petitioner submitted that the petitioner was not in a position to pay such a large amount in the desired period, but a reasonable amount was ready to be deposited. It was pleaded that on such payment, the possession of the residential house be ordered to be given back to the petitioner. It was assured that the balance overdue, along with all applicable charges and interest, will be paid in 10 equal monthly installments without any default thereafter, and that the account will be serviced satisfactorily in future.

The Court observed that it was aware of the jurisdictional inhibitions but still was necessary to show a limited lenitude to the petitioner because of the family which was also suffering along with him. Hence, the Court ordered the respondent to give back the possession to the petitioner but under the strict condition that he must not default any installment in the future. The petitioner was directed to pay Rs 25,000 and the Bank was directed to hand over the keys of the residential property to him. Further, he was also directed to pay the regular EMIs.

The Court held, “Since I have permitted the petitioner to obtain back possession of the residential property strictly under these orders, it goes without saying that any default of the afore directions, will render him susceptible to an action under the Contempt of Court Act and also that in such event, he will be obligated to give back physical possession of the same to the Bank without any further orders from this Court.”[Chandran S. v. Canara Bank, 2019 SCC OnLine Ker 2392, decided on 24-07-2019]

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

Kerala High Court: Raja Vijayaraghavan V., J.  allowed a petition quashing the proceedings, invoking its inherent powers under Section 482 of the Code of Criminal Procedure, 1973, stating that the criminal proceedings against the petitioner were nothing but an abuse of the process of law.

In 2008, there was a search operation at the Transport Bus Stand, Kollam. The petitioners, who were standing together, were asked by the police to hand over their bags, inside which they found a video camera and a digital camera. On inspection, the cameras were found to contain certain sexually explicit pictures and videos of the 2d accused petitioner. The petitioners were arrested and their cameras were taken into custody. The crime was registered, and after investigation, a final report was presented before the Judicial Magistrate. And as the petitioners failed to appear before the court, the case against them was removed to the list of long pending cases as LP No. 334/2014.

The learned counsel appearing for the petitioners, stated that, first, the pictures were of the 2nd and 1st accused together, and the 1st accused was the partner of the 2nd accused, and second, that as there was only possession of the sexually explicit photographs with the accused, and no publication or advertisement, the prosecution has no case against them. The learned Public Prosecutor on instruction submitted that the explicit pictures and videos in the camera, were recorded for the purpose of circulation and distribution.

The Court having considered the submissions of both the sides, stated that the Indecent Representation of Women (Prohibition) Act, 1986, prohibits indecent representation of women through advertisements or publications, and with reliance on it, there is no case for the prosecution there being no advertisement or publication or circulation of their private pictures found in the cameras which were in their possession. The Court laid down that if there are some sexually explicit pictures or videos with a person, of his own, then the mere possession will not be a criminal offence, unless there is distribution or publication of the pictures for advertisement or for any other incidental purpose.

Thus, the petition was allowed, and the proceedings against the petitioners were declared void.[Smitha v. State of Kerala, 2019 SCC OnLine Ker 1834, decided on 26-02-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench of Surya Kant, CJ. and Sandeep Sharma, J. addressed grievances raised by the petitioners and directed the authority to take necessary action.

The instant matter relates to an order passed by the Sub Divisional Officer (Civil) Gohar, whereby it had turned down the claim of the Petitioners for conferment of ownership rights and protection over a small piece of forest land on the grounds of the claim being barred by time limit prescribed under Rule 11(1) (a) of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules, 2007 (hereinafter ‘2007 Rules’).

The learned counsel representing the petitioners, Mr Rajnish Maniktala and Mr Naresh K. Verma, stated that there is no prescribed time limit for Gram Sabha to invite claims or authorize the Forest Rights Committee to accept the claims. They contended that the Gram Sabha had invited claims and the petitioners had submitted its claim within the time limit and thus, the Sub Divisional Officer (Civil) erred in rejecting the claim of the petitioners being time-barred. The petitioners also contended that the Sub Divisional Officer (Civil) did not have the authority to decide the matter but the competent prescribed authority to process the claim was Sub Divisional Committee and the final deciding authority being District Level Committee.

The Court held that the competent authority to process the claim of petitioners was the Sub Divisional Committee, and the final deciding authority was the District Level Committee. In view thereof, it directed the said Committee to complete the process within a period of two months and submit the report to the District Level Committee within the stipulated period of time. The Court also stated that as long as the matter is not finally decided by the District Level Committee, the possession shall remain with the petitioners.[Bhama Devi v. State of H.P., 2019 SCC OnLine HP 616, decided on 14-05-2019]

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 BriefsSupreme Court

Supreme Court: In a matter where the plaintiff had no document to prove his possession of a property, but   claimed   possessory   title   based   on   prior possession for a number of years, the bench of NV Ramana and MM Shantanagoudar, JJ held:

“Merely on doubtful material and cursory evidence, it cannot be held that the plaintiff was ever in possession of the property, and that too in settled possession.”

Explaining the law of possession of property, the Court said:

“a   person   who   asserts possessory title over a particular property will have to show that he is under settled or established possession of the said property. But merely stray or intermittent acts of trespass do not give such a right against the true owner.”

The Court further elaborated on the meaning of “Settled possession” as such possession over the property which has existed for a sufficiently long period of time, and has been acquiesced to by the true owner.  It said:

“A casual act of possession does not have the effect of interrupting the possession of the rightful owner.   A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force.   Settled possession must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser.”

The Court, however, said that there cannot be a straitjacket formula to determine settled possession. The nature of possession of the trespasser is to be decided based on the facts and circumstances of each case. Occupation of a property by a person as an agent or a servant acting at the instance of the owner will not amount to actual legal possession. The possession should contain an element of animus possidendi. [Poona Ra, v. Moti Ram, 2019 SCC OnLine SC 91, decided on 29.01.2019]

Case BriefsHigh Courts

Jammu and Kashmir High Court: A Single Judge Bench of Sanjeev Kumar, J., dismissed this writ petition, claiming relief by private parties, in respect to the possession and title of the immovable property.

The facts of the case were that the petitioner had a dispute over possession with the respondents, her stepsons, with regard to some property.  She approached the Tehsildar Khansahib for redressal and the matter reached to the Dy. Commissioner. The Dy. Commissioner ordered in her favor but the respondents did not oblige to this order. The petitioner thus approached this court to seek relief.

The Court reiterated the settled law and relied on the Supreme Court decision in Roshina T v. Abdul Azeez K.T.,2018 SCC OnLine SC 2654, where the Court cautioned against the entertainment of the writ petitions involving adjudication of disputed questions of facts relating to possession and title of immovable property between the private parties.

Thus, the writ petition was dismissed. [Khati v. State of J&K,2018 SCC OnLine J&K 979, decided on 14-12-2018]

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 BriefsHigh Courts

Calcutta High Court: A Single Judge Bench comprising of Biswajit Basu, J. dismissed a civil revision pertaining to grant of relief under Section 6 of the Specific Relief Act, 1963.

The suit under the said section was filed by the petitioner alleging that he was the tenant in the suit property. That he was dispossessed from the same without his consent and without due process of law. The suit was filed for the relief of reclaiming the possession. The trial court, vide the order impugned, dismissed the suit of the petitioner herein. Aggrieved thereby, the instant revision was filed.

The High Court perused the record. It was observed that Section 6 provides a special and speedy remedy for a particular kind of grievance to place back in possession a person who had been evicted from the immovable property of which he had been in a possession, otherwise than by process of law. Therefore, possession of the plaintiff over the immovable property on the date of dispossession is the condition precedent to invoke jurisdiction of Section 6. Investigation into the title favouring such possession is irrelevant in the proceeding of such nature. In the facts of the present case, it was clear that the petitioner was not in possession of the suit property on the date on which the unlawful dispossession was alleged. Therefore, the Court held that no interference was called for in the order impugned passed by the trial court. The revision petition was accordingly dismissed. [Ramesh Chand Koiri v. Chandan Koiri,2018 SCC OnLine Cal 6471, dated 19-09-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench of the Delhi High Court comprising of S.P. Garg, J., allowed a criminal appeal, setting aside the conviction of the appellant under Section 489B and 489C of the IPC.

The appellant had been arrested on account of possessing and trying to use as genuine, some fake currency notes while buying from a shop. The appellant had pleaded innocence. The Court analyzed the circumstances surrounding the arrest and noted that the accused possessed 7 more Rs. 500/- denomination notes at the time of arrest out of which one more was counterfeit while the rest were genuine. The fake notes were such that they had to be tested with an instrument to establish that they were fake. The appellant had offered to switch the note he had given to the shopkeeper with any other note in his possession. Also, the appellant had not tried to run away. There were also discrepancies during the investigation and during the examination of witnesses.

The Court, while noted the settled position that mere possession of a counterfeit currency note is not enough to establish the guilt. Further, nothing had come on record to show that the appellant had reasons to believe that the note used by him was counterfeit. Presumption of knowledge from mere possession can only be drawn if the notes were apparently counterfeit. Further, the Court relied on the judgment in M.Mammutti v. State of Karnataka, (1979) 4SCC 723 : AIR 1979 SC 1705 to state that only if counterfeit notes are of such nature that mere look at that them would not convince a person that it is counterfeit then no presumption of knowledge can be attributed to the person merely possessing them. In the light of the above reasons, the appeal was allowed, sentence set aside. [Sunder Lal v. State Govt. of NCT of Delhi, 2018 SCC OnLine Del 9079, decided on 16-05-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission: The complainant in a recent case before NCRDC had complained that a sales representative of the Unitech Ltd. approached him in 2006 to purchase a residential apartment in a new project of the respondent to be developed in Noida, UP. The complainant alleged that he was lured by the promises of the representative that the flat would be handed over to him within 36 months and in consequence, applied for the allotment of an apartment by entering into a builder-buyer agreement with the respondent.

The case of the complainant is that the opposite party has failed to complete the construction and deliver possession of the apartment after expiry of stipulated date of delivery of possession and has affidavit to support allegations made in the complaint. The Commission after going through all the allegations and all documents and agreements, concluded that it was not just a case of delay on part of builder to deliver possession, but a case in which builder was not in a position to offer possession of the apartment at all.

Thereafter, the Bench comprising Mr. Ajit Bharihoke (Presiding Member) and Mr. Anup K. Thakur (Member) directed refund of the amount paid by the complainant with simple interest of 10% per annum and observed that in such a case where builder is not in a position to deliver possession of the apartment even after 8 years, it would be wrong to expect to wait for possession of apartment for an indefinite period. [Shalini Lanbah v. M/s Unitech Ltd.,  2017 SCC OnLine NCDRC 525, decided on 05.10.2017]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ranjan Gogoi, Arun Mishra and P.C.Pant, JJ, were hearing a reference to decide the question as to whether after the expiry of the fixed term tenancy in respect of an agricultural lease under the Punjab Security of Land Tenure Act, 1953, the tenancy gets automatically terminated and the person occupying the leased premises ceases to be a tenant, as a 2-judge bench did not agree with the decision of a coordinate bench in Sukhdev Singh v. Puran , (2015) 12 SCC 344 where it was held that tenant under the 1953 Act ceases to be one on expiry of the fixed term tenancy under the contract whereafter he is not entitled to the statutory protection from eviction as envisaged under the Act.

The Court held that to be entitled to protection from eviction under the 1953 Act any person claiming such protection has to come within the fold of the expression “tenant” under the 1953 Act read with the relevant provisions of the Punjab tenancy Act, 1887 Act. Statutory protection would be available only to a statutory tenant, namely, a tenant under the Act. The 1953 Act read with the relevant provisions of the 1887 Act does not include a tenant whose lease has expired. Nevertheless, retention/continuance of possession after expiry of the duration of the lease with the consent of the landlord will continue to vest in the erstwhile tenant the same status on the principle of holding over.

The Court, further held that such continuance even after expiry of the deemed period of the lease under Section 106 of the Transfer of Property Act, 1888 would clothe the occupant with the status of a tenant under the Act in view of Section 116 of the Transfer of Property Act which deals with the consequences of holding over. The operation of Section 116 of the Transfer of Property Act would confer legitimacy to the possession of the tenant even after the termination or expiration of the deemed period of the lease so as to confer on him a status akin to that of a statutory tenant and hence protection from eviction as envisaged by the provisions of the Act of 1953. [Shyam Lal v. Deepa Dass Chela Ram Chela Garib Dass, 2016 SCC OnLine SC 661, decided on 05.07.2016]

Supreme Court

Supreme Court: Deciding a matter dealing with possession of opium by the appellant, the bench of Dipak Misra and S.A. Bobde, JJ interpreted the term ‘possession’ and said that when one conceives of possession, it appears in the strict sense that the concept of possession is basically connected to “actus of physical control and custody”, however, attributing this meaning in the strict sense would be understanding the factum of possession in a narrow sense. Stating that there is a degree of flexibility in the use of the said term and that is why the word possession can be usefully defined and understood with reference to the contextual purpose for the said expression, it was further held that the term “possession” consists of two elements. First, it refers to the corpus or the physical control and the second, it refers to the animus or intent which has reference to exercise of the said control.

Noting that over the years, courts have refrained from adopting a doctrinaire approach towards defining possession, the Court said that since a functional and flexible approach in defining and understanding the possession as a concept is acceptable and thereby emphasis has been laid on different possessory rights according to the commands and justice of the social policy, hence, the word “possession” in the context of any enactment would depend upon the object and purpose of the enactment and an appropriate meaning has to be assigned to the word to effectuate the said object.

Applying this interpretation to the case at hand, the Court said that the legislature while enacting the said law was absolutely aware of the said element and that the word “possession” refers to a mental state as is noticeable from the language employed in Section 35 of the NDPS Act. It was further held that conscious or mental state of possession is necessary and that is the reason for enacting Section 35 of the NDPS Act. Mohan Lal v. State of Rajasthan, 2015 SCC OnLine SC 357, decided on 17.04.2015

Supreme Court

SUPREME COURT: In one of the prominent decisions, the Court while dealing with a Special Leave Petition regarding the possession of the land in question by the Government of Assam under the  Urban Land (Ceiling and Regulation) Act, 1976 decided in favour of State and ruled that despite the repeal of  the Principal Act of 1976 by the Urban Land (Ceiling and Regulation) Repeal Act, 1999, the possession that has been taken over by the State Government under the Principal Act will not be affected

The main issue raised by the appellant was that the possession of the declared entire surplus land was taken over by the Revenue Authority. Government of Assam on 27.11.2003 allotted a certain extent of land to Guwahati Metropolitan Development Authority (GMDA) for construction of an office building for itself and  in the meanwhile the Urban Land (Ceiling and Regulation) Repeal Act, 1999 was notified which came into force in the State of Assam w.e.f. 06.08.2003. The respondents filed a petition before the Single Judge Bench of the Assam High Court challenging the possession of the allotted land which was handed over to GMDA. The Single Judge bench however dismissed the petition but subsequently it was allowed by the Division Bench of the same court and the possession of the disputed land to the given to the respondents.

Affirming the judgment given by the Single Judge Bench, the Court set aside the judgment of the division Bench of the High Court stating that, according Section 3(b) of  the Repeal Act of 1999 which states that the repeal of the principal Act shall not affect the vesting of any vacant land under Section 10(3) the possession of which has been taken over by the State Government. Mr.P.K. Goswamy, appearing for the respondents argued that actual physical possession must be proved to have been taken over by the State Government and that it did not notify before taking over the possession. On this the court said that there was no prominent document to prove the actual possession and notifying before taking the possession was mere a academic exercise in this case. State of Assam v. Bhaskar Jyoti Sarma, 2014 SCC OnLine SC 946, Decided on 27/11/2014