Case BriefsHigh Courts

Bombay High Court: G.S. Kulkarni, J., while addressing another unfortunate case concerning a mother who was ousted from the tenement she owned by her own son. In view of the said, Court expressed that,

This appears to be another clear case where the petitioner(son) has no other intention but to enjoy the tenement exclusively, ousting the roof over his mother’s head, taking advantage of her incapacity at such an old age.

Unfortunate Tale

The plight of a benighted widowed mother, a senior citizen, to gain a roof over her head in a tenement owned by her and the hard struggle faced by her from one of her sons.

Background

By the present petition, an order passed by the Parents and Senior Citizens Subsistence Tribunal was challenged by the petitioner, who was the son of respondent 2 (mother).

The mother had approached the tribunal as she was dis-housed from her only abode being a small tenement.

Factual Trajectory

The original tenement was possessed by the petitioner’s father and respondent 2’s husband. The building in which such tenement existed was taken up for redevelopment and on completion of the same, petitioner’s father would have become entitled to the house. However, he expired, and the petitioner’s mother’s name permitted for allotment of the redeveloped tenement.

At an old age, the said tenement was the only roof over the mother’s head.

It was noted that the petitioner on the exclusion of other siblings started asserting a right of residence on the tenement belonging to the mother and in such pursuit, he along with his family members foisted himself on the mother.

Petitioner by taking advantage of her old age mother, her lack of education entered into a rent agreement with her. As per the said agreement, he agreed to pay the mother a monthly rent of Rs 5,000, which he never paid.

The glaring fact was that for the petitioner rent agreement was only a piece of paper and was never to be acted upon, either by making payment of rent as agreed or vacating the tenement. He also conveniently chooses to forget that he had recognized the mother to be the absolute owner of the tenement.

What did the mother complain of?

The mother approached several authorities stating that the petitioner did not make payment of the rent which was also a source of her livelihood and had been ousted from her residence as also she was not paid by her son.

Tribunal had directed the petitioner to vacate the premises by following directions issued under Sections 4(2) and 4(3) read with 23 of the Senior Citizens Act.

Analysis and Discussion

Rent agreement with mother

High Court noted that the petitioner did not spare any effort to retain the possession of the tenement and for that matter, he also tried to enter into such rental agreement, with the mother, however, in doing so he completely overlooked that such a rent agreement was a temporary relief to him, inasmuch as, in the rent agreement in the recital clause, he accepted the mother to be the exclusive owner of the tenement oblivious of the consequence of such recital. The petitioner cannot set up a defence which is contrary to such document, to which he is himself a party.

In Court’s opinion, the tribunal had rightly recognized the applicability of Sections 4,5 read with 23 of the Act.

There was nothing on record to show that the petitioner had any independent right in respect of the tenement in question. Even in the rent agreement stated above, the petitioner categorically admitted that the mother was the owner of the said tenement.

“…quite astonishing that the petitioner invented such a novel method namely to enter into a rent agreement with the mother and only to be breached, as it is seen that only when the mother made a police complaint, the petitioner paid the amounts to the mother.”

The High Court along with a catena of decisions also referred to the decision of Dattatrey Shivaji Mane v. Lilabai Shivaji Mane, 2018 SCC OnLine Bom 2246, wherein the Court observed that,

“31. In my view, Section 4 cannot be read in isolation but has to be read with Section 23 and also Sections 2(b), 2(d) and 2(f) of the said Act. The respondent no.1 mother cannot be restrained from recovering exclusive possession from her son or his other family members for the purpose of generating income from the said premises or to lead a normal life. In my view, if the respondent no.1 mother who is 73 years old and is a senior citizen, in this situation, is asked to file a civil suit for recovery of possession of the property from her son and his other family members who are not maintaining her but are creating nuisance and causing physical hurt to her, the whole purpose and objects of the said Act would be frustrated.”

The Bench found that the rent agreement was with the mother was only an attempt and a struggle on the mother’s part to receive the benefits from the tenement, so as to avail such small money from the petitioner for her survival. Though petitioner defaulted in making such payment.

Concluding the matter, Court held that son had no legal right in the tenement so as to sustain a claim that he can dis-house the mother and exclusively enjoy the tenement.

As the mother has substantially suffered for a long period, it is imminently in the interest of justice that the petitioner expeditiously vacates the premises.

Therefore, the petition was wholly misconceived and was accordingly dismissed. [Suryakant Kisan Pawar v. Kusum Kisan Pawar, WP No. 2141 of 2019, decided on 18-1-2022]


Advocates before the Court:

Mr. Akshay Petkar with Mr. Aniket Mali, for Petitioner.

Mr. Himanshu Takke, AGP for Respondent No.1.

Mr. P. R. Yadav with Mr. Saumitra Salunke for Respondent No.2.


Also Read:

Senior Citizen soon to enter her 90’s desired to end her life: Son and Grandson mentally left no stone unturned to make life of ‘grandmother’ a living hell | Bom HC emphasizes on family and societal values being perished

“Daughters are daughters forever and sons are sons till they are married”: Bom HC orders son to vacate flat of 90 yrs old parents

Under Parents and Senior Citizens Act, is it necessary to find out whether property belongs to parent exclusively or is a shared household in which daughter-in-law has rights? Bom HC deciphers

Bom HC | “If children cannot take care of their parents and allow them to live in peace, they atleast ought not to make their life a living hell”; Court sternly warns daughter to not harass mother physically & mentally

Case BriefsHigh Courts

Delhi High Court: Explaining the significance of ‘shared household’ Asha Menon, J., explained that where a residence is clearly a shared household, it would not bar the owner from claiming eviction against her daughter-in-law, if circumstances call for it.

An instant suit was filed for possession, damages and permanent injunction in respect of the property. The plaintiff claimed to be the exclusive and absolute owner of the suit property.

The suit was filed against the daughter-in-law of the plaintiff who is defendant 1 and her mother who is defendant 2. Son of the plaintiff and the husband of the defendant 1 expired in 2020.

Even if it was accepted that defendant 2 had come to reside with her daughter then, to be of comfort to her daughter, clearly, she had no right to continue to stay in the suit premises once the plaintiff had expressed her desire that the defendant 2 should leave.

Whether defendant 1 raised a triable issue with regard to the title of the plaintiff?

In Court’s opinion, defendant’s claim reflected a desperate attempt to question the plaintiff’s exclusive title to the suit property, which attempt has failed.

Reasoning the above-said further, High Court stated that accepting the fact that the plaintiff’s husband had bequeathed the property to the children, it was also a fact that the children relinquished their shares and rights in favour of their mother.

The Relinquishment Deed was of the year 1999 and the son of the plaintiff married three times, and the defendant 1, being the third wife, entered his life in 2014. Between 1999 till 2014, neither the deceased son of the plaintiff nor her daughter questioned the Relinquishment Deed executed in favour of their mother or the execution of the Conveyance Deed in 2000 solely in the name of the plaintiff.

Even after the marriage of the deceased son of the plaintiff to the defendant 1, the son never questioned the validity of the Relinquishment Deed, by instituting any legal proceedings.

Hence, in view of the above, challenge raised by the defendant 1 was completely untenable and the plaintiff was clearly the exclusive owner of the suit property.

In the present matter, Court noted that the defendants admitted the existence of the Relinquishment Deed and Conveyance Deed executed in favour of the plaintiff and expressed that,

Merely raising the bogey of a life interest does not detract from the admissions made, thus acknowledging the exclusive title of the plaintiff to the suit property.

Shared Household

Defendant 1 raised the plea that the suit premises constituted her shared household.

The significant point to be noted was that the plaintiff herself did not dispute the fact that the suit premises formed the shared household, hence no other evidence or proof was required to establish the said fact.

High Court opined that in light of the decision of the Supreme Court in Satish Chander Ahuja v. Sneha Ahuja, (2021) 1 SCC 414 the mere fact that premises take on the nature of shared household would not per se be a complete defence to a suit for possession filed by the owner of the property, being the in-laws of the defendant/aggrieved person, nor is such a suit barred.

The protection under the DV Act assuring the residence of the aggrieved person in the shared household does not vest any proprietary or indefeasible right on the aggrieved person. It is also subject to eviction being initiated in accordance with law.

Right of residence allowed to aggrieved person does not extend to her insisting on the right of residence in a particular premises.

Section 19 of the DV Act provides for an alternate accommodation being given to the aggrieved person of the same level in certain circumstances.

 “…even where a residence is clearly a shared household, it does not bar the owner, the plaintiff herein, from claiming eviction against her daughter-in-law, if the circumstances call for it.”

Whether the plaintiff must be put to the rigours of a trial to determine whether she made out a case for reclaiming possession of the suit premises or whether the facts as set out in the written statement and the plaint would be sufficient to come to a conclusion?

As per the written statement, the relationship between the parties was far from cordial.

Defendant 1’s case was that the plaintiff and her grandson subjected her to abuse along with this she also stated that she was entitled to half share in the property and thus was entitled to half of the rental income as per the Will of the late father-in-law. She even alleged that her stepson being the grandson of the plaintiff was wasting away the assets of her late husband and was operating various bank accounts and mutual fund accounts of her late husband on the basis of being the nominee, without accounting for her share.

Court noted that defendant 1 in order to wrest settlement from the plaintiff, had made efforts to pressurize her while staying in her premises.

Bench opined that, the defendants admitted in their written statement that the plaintiff had one bedroom in her possession whereas the defendants had two bedrooms in their possession with kitchen, drawing and dining being common portions. By inducting her mother and for a short time her sister, defendant 1 seemed to have made an attempt to assert rights in respect of the suit property, clearly causing distress to the plaintiff.

The averments made in the written statement were sufficient to establish a justification for the plaintiff to seek the eviction of the defendants.

High Court held that the plaintiff was entitled to seek possession of the suit premises from the two defendants without the rigours of an unnecessary and prolonged trial at her age.

Suppression of Facts

Plaintiff counsel submitted that the defendants had a place in Pune.

In the written statement the allegation was that the plaintiff and the grandson were trying to force the defendants “to return to Pune”. The Bench stated that interestingly the affidavit of defendant 2 stated her residential address to be the suit premises but it cannot be her permanent residence. Defendant 2 arrives from somewhere upon the death of her son-in-law.

Hence, there had been suppression of facts by the defendants. [Madalsa Sood v. Maunicka Makkar, 2021 SCC OnLine Del 5217, decided on 10-12-2021]


Advocates before the Court:

For the Plaintiff:

Rajat Aneja & Chandrika Gupta, Advocates.

For the Defendants:

D.K. Goswami, Sr. Advocate with Saharsh Jauhar & Kuldeep Singh, Advocates for D-1 & D-2.

Case BriefsSupreme Court

Supreme Court: The bench of L. Nageswara Rao and BR Gavai*, JJ has reiterated the position that the tenants would not be entitled to benefit and rights under the Chennai City Tenants Protection Act, 1921 unless they are in actual physical possession of the building constructed by them.

Clarifying the aforesaid position, the Court held that in case the tenants have let out or sub-let the building or given it to third parties, including dealers or licensees, they would not be entitled to protection and benefit under the Tenants Act.

In Bharat Petroleum Corporation Limited v. R. Chandramouleeswaran, (2020) 11 SCC 718, while interpreting sub-clause (b) to Section 2(4)(ii), the Court had held that the expression “actual physical possession of land and building” would mean and require the tenant to be in actual possession and sub¬clause (b) would not apply if the tenant has sub¬let the building or has given the premises on leave and licence basis.

In Bharat Petroleum Corpn. Ltd. v. Nirmala, (2020) 11 SCC 738, the Court had lucidly explained the legal position and had held,

“On a plain reading of sub¬clause (b) we notice that it uses the words “actual physical possession”. Had   the word “possession” alone been used in clause (b), as has been done in clause (a), the legal position may have been different. However, the words “actual physical possession” are strong and emphatic. That means that the factual state of affairs has to be seen, not the legal or deemed state of affairs. There is no doubt that the appellant had handed over possession to his licensee/agent who was in actual physical possession of the suit premises. When a statute uses strong and emphatic words, we cannot twist or give a strained interpretation to the said words.”

[National Company v. Bharat Petroleum Corporation Ltd., 2021 SCC OnLine SC 1042, decided on 11.11.2021]


Counsels

For appellant: Senior Advocate V. Giri

For respondents: Senior Advocate Kailash Vasdev


*Judgment by: Justice BR Gavai

Know Thy Judge| Justice B.R. Gavai

Experts CornerKapil Madan


Introduction


 

India has been a signatory to the UN Single Convention on Narcotics Drugs 1961, the Convention on Psychotropic Substances, 1971 and the Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 which prescribe various forms of control aimed to achieve the dual objective of limiting the use of narcotics drugs and psychotropic substances for medical and scientific purposes as well as preventing the abuse of the same.

The administrative and legislative set-up in the field of narcotics has been put in place in India in accordance with the aforesaid spirit of the UN Conventions. The basic legislative instrument of the Government of India in this regard is the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985.

The scheme of the Narcotic Drugs and Psychotropic Substances Act, 1985 trifurcates the substances into three kinds which are as follows:

(i) narcotic drugs;

(ii) psychotropic substances; and

(iii) controlled substances.

The Supreme Court and various High Courts in plethora of judgments have observed that such offences are of extremely heinous nature, as such substances can affect an entire generation of youth.[1] Thus, the Act is framed and interpreted as one of the strictest legislations in the sphere of criminal law as far as grant of bail to the accused is concerned.


Importance of recovery in investigation of offences under NDPS Act


 

It is submitted that “recovery” and “possession” is a vital aspect of investigation under the NDPS Act. This is because the accused is “found” to be in possession of the prohibited substance, Section 54 of the Act gives rise to a presumption of commission of offence and Section 35 of the Act  gives rise to a presumption of culpable mental state.

Therefore, the officer or the raiding party which effects recovery are witnesses to the said fact which would constitute an offence and therefore investigation of the said aspect has to be carried out by an independent agency. Investigation being a systemic process and not a forgone conclusion making the FIR itself lodged by the informant who himself affects recoveries to be treated as a gospel truth.[2]

Such presumptions against the accused may be necessary however, they also cause grave prejudice to the accused. Moreover, firm belief on the FIR and the information provided by the informant does not rule out the possibility of a person being falsely implicated for commission of offence under the Act.

For instance, in a hypothetical situation, if an accused was never in possession of the alleged contraband, and the same has been planted upon him by the investigation agency, the accused would never be able to prove his innocence at the time when such search, seizure and arrest is being conducted; owing to above-stated presumption which the act itself draws against the accused.


Stringent conditions on bail under the NDPS Act


 

The conditions for bail also differ from the general rule of bail in criminal jurisprudence. Section 37 of the Act (in commercial quantity), two additional preconditions are imposed upon the accused in addition to the ones  prescribed under Code of Criminal Procedure, which are to be satisfied before an accused can be enlarged on bail. Section 37 is reproduced hereinbelow for ease of reference:

 

  1. Offences to be cognizable and non-bailable.— (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—

* * *

(b) no person accused of an offence punishable for 3 offences under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity shall be released on bail or on his own bond unless—

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and

(ii) where the Public Prosecutor oppose the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

It is submitted that such a provision has been inculcated in the Act as there is compelling State interest which is involved in the implementation of the aforementioned Act owing to the very serious  nature of the offences.[3]

 


Safeguards available to the accused under the NDPS Act


It is a settled position in law, that no matter how strict a legislation is intended to be, it is necessary that it envisages some protections, compliances and procedures to be conducted during the implementation of the provisions of the Act, in order to prevent the misuse/abuse  of the penal provisions of any legislation.

The NDPS Act, 1985 being no different, vide Chapter V prescribes certain mandatory procedural compliances which are to be conducted while conducting a search, seizure or arrest of an accused person.

Such provisions which deal with procedural compliances shall be discussed and deliberated upon in detail hereinbelow:

  1. Section 41 of the NDPS Act, 1985

 

Section 41 of the Act deals in detail with the power to issue a warrant for a search and seizure. Section 41 is reproduced hereinbelow for ready reference:

  1. Power to issue warrant and authorisation.— (1) A Metropolitan Magistrate or a Magistrate of the First Class or any Magistrate of the Second Class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under this Act, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed.

(2) Any such officer of gazetted rank of the department of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including the para-military forces or the armed forces to be empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under this Act or that any narcotic drug or psychotropic substance or controlled substance in respect of which any offence under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place.

(3) The officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub-section (2) shall have all the powers of an officer acting under Section 42.

A bare perusal of the abovementioned provision shall make it clear that:

(a) Section 41(1) deals with the power of the Magistrate to issue the warrant, to conduct a search.

(b) Section 41(2) enshrines similar power to a gazetted officer of the departments mentioned therein or any other officer with the authorisation of such gazetted officer to conduct a search.

(c) The Magistrate or the gazetted officer as the case may be  prior to taking any action under the captioned provision of the Act must ensure that they have a reason to believe that an offence under this Act has been committed.

Further with regard to the authorisation of the gazetted officer which finds mention in Section 41(2), the Supreme Court in T. Thomson v. State of Kerala[4] has held that such  authorisation under Section 41(2) is not required when the gazetted officer is himself conducting the search and is only required in case where the search is to be conducted by a subordinate  to conduct the search on his behalf.

 

2. Section 42 of the NDPS Act, 1985

 

Section 42 of the Act empowers a gazetted officer or his subordinate mentioned under Section 41(2) to conduct search, seizure and arrest without warrant or authorisation. The captioned section is reproduced hereinbelow for ready reference:

 

  1. Power of entry, search, seizure and arrest without warrant or authorisation.— (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset,—

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act; and

(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:

Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of Sub-Inspector:

Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.

The provision reproduced above may be understood in following manner:

(a) The above provision pertains only to the search of buildings conveyances and enclosed places.[5]

(b) Officer empowered under Section 41(2)  having reasonable belief owing  receipt of an information or from his personal knowledge regarding commission of an offence under the Act has a right to conduct search in the manner prescribed in the provision after recording the information received in writing and obtaining  authorisation in the manner prescribed under the Act.

(c) If the officer has reason to believe that an authorisation cannot be obtained as same would lead to affording of an opportunity to accused to conceal material evidences, the officer may conduct search without authorisation after duly recording such reasons to believe.

(d) Information received or reasons to believe for not obtaining an authorisation must be sent to a designated senior officer within 72 hours of recording the same.

The Supreme Court at numerous occasions has held the following with regard to Section 42 of the Act:

(a) Compliances under Section 42 of the Act  are mandatory in nature.[6]

(b) Non-compliance with the conditions contained therein can lead to serious repercussions such as vitiation of the search conducted and the trial held. [7]

(c) The purpose of this provision is to provide due protection to a suspect against false implication.[8]

 

3. Section 43 of the NDPS Act, 1985

 

Section 43 of the Act prescribes the procedure which shall be followed while conducting a search in a public place. The provision is reproduced hereinbelow for ready reference:

 

  1. Power of seizure and arrest in public place.—Any officer of any of the departments mentioned in Section 42 may

(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act;

(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.

Explanation.— For the purposes of this section, the expression “public place” includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.

With regards to the provision reproduced above it is pertinent to note the following:

(a)  The above provision pertains only to the search of “public place” which are defined under the provision.[9]

(b) Unlike Section 42, under the captioned provision does not make it mandatory for the officer conducting the search in “public place”  to record the satisfaction or reasons to believe prior to conduct of search of a public place.[10]

 

4. Section 50 of the NDPS Act

 

Section 50 of the Act specifies the conditions under which the search of a person may be conducted. The provision is reproduced hereinbelow for ease of reference:

  1. Conditions under which search of persons shall be conducted.— (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the gazetted officer or the Magistrate referred to in sub-section (1).

 

(3) The gazetted officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

 

(4) No female shall be searched by anyone excepting a female.

 

(5) When an officer duly authorised under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest gazetted officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest gazetted officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973.

 

(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.

 

 

It is submitted that scope of the provision reproduced above is limited  and it is only applicable in the instances wherein recovery of contraband has been effected as a consequence of body search and thus such a provision shall not be applicable if the recovery has been affected from a bag or any other belonging which the person was separately carrying.[11]


Non-compliance and its impact on bail


All the statutory compliances which have been discussed above are mandatory in nature. Purpose of these compliances is to ensure that a person is not falsely implicated and he has a fair opportunity in order to defend himself. Further recently Kerala High Court in Sarath v. State of Kerala[12] have held that non-compliance with the mandatory procedure for search, seizure and arrest in the manner as  envisaged in the Act results in  vitiation of such search and such factor can be considered at the stage of investigation in order to grant bail. So, if an accused can prove that the search and seizure conducted upon him was not in consonance or compliance with the procedure prescribed under the Act, the accused shall be eligible for grant of bail.

Thus, if a search, seizure or arrest of a person is conducted in neglect of the compliances as prescribed under the Act, and a person can show sufficient proof of the same, then such non-compliance can act as a mitigating factor against the stringent conditions of bail as imposed under the Act.

However, the onus to prove that there was grave negligence on the part of authorities in observing the compliances under the Act also lies on the accused and the court shall always presume that the authorities have complied.  It is also pertinent to note that till date the courts have failed to define the extent or manner in which the non-compliance on the part of authorities need to be proven in order to make a case for grant of bail and this is an issue on which further clarity is warranted.


Conclusion


In the view above, it is safe to say that under NDPS Act, 1985, the State has compelling interest to safeguard the society from the drug menace and as such the Act provides for stringent bail conditions and reverse presumption against the accused. At the same time, the Act also provides for procedural safeguards qua the search, seizure and arrest non-compliance of which seriously impinges the case of the prosecution and vitiates the prosecution initiated under the NDPS Act.


† Partner, KMA Attorneys.The author can be contacted at kmadan@kmalawoffice.com or +91-9971305252.

††  Senior Associate, KMA Attorneys.

†††  Senior Associate, KMA Attorneys.

[1] Raj Kumar Karwal v. Union of India, (1990) 2 SCC 409.

[2] Mukesh Singh v. State (NCT of Delhi), (2020) 10 SCC 120.

[3] Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1, 40.

[4] (2002) 9 SCC 618.

[5] Krishna Kanwar v. State of Rajasthan, (2004) 2 SCC 608.

[6] M. Prabhulal v. Directorate of Revenue Intelligence, (2003) 8 SCC 449.

[7] Chhunna v. State of M.P., (2002) 9 SCC 363.

[8] Kishan Chand v. State of Haryana, (2013) 2 SCC 502.

[9] M. Prabhulal case, (2003) 8 SCC 449.

[10] State of Haryana v. Jarnail Singh, (2004) 5 SCC 188.

[11] Jarnail Singh v. State of Punjab, (2011) 3 SCC 521.

[12] 2021 SCC OnLine Ker 2840.

Case BriefsSupreme Court

Supreme Court: Holding that caretaker/servant can never acquire interest in the property irrespective of his long possession, Bench of Ajay Rastogi and Abhay S Oka, JJ., held that trial court committed manifest error in appreciating the pleadings on record from plaint filed at the instance of a caretaker/servant.

Appellant-defendant approached this Court assailing the decision of lower court on the application filed at his instance under Order VII Rule 11, Civil Procedure Code, 1908.

Factual Matrix

Appellant-defendant initially entered into an agreement to sell of the subject property and after a formal conveyance deed a sale deed was executed and his right of ownership over the subject property in question became absolute.

Respondent 1-plaintiff submitted that he was in possession of the subject property as a caretaker/servant.

Respondent-1-plaintiff’s prayer was:

  • For declaration that plaintiff is a lawful occupier as caretaker/servant of the sole owner of the A schedule property and occupied and adverse possessor of the B Schedule property.
  • for the permanent injunction restraining defendant to disturb or evict the peaceful possession of the plaintiff otherwise then the due course of law.

Analysis, Law and Decision

Supreme Court opined that trial court committed a manifest error in appreciating the pleadings on record from plaint filed at the instance of respondent 1-plaintiff who as a caretaker/servant can never acquire interest in the property irrespective of his long possession and the caretaker/servant has to give possession forthwith on demand and so far as plea of adverse possession is concerned as it lacks material particulars and the plaint does not discloses the cause of action for institution of the suit.

Bench held that lower court’s decision was not sustainable on the first principles of law.

Therefore, appeal succeeded and was allowed, and Court directed respondent 1-plaintiff to handover, vacant and peaceful possession of the subject property in question free from all encumbrances within 3 months.[Himalaya Vintrade (P) Ltd. v. Md. Zahid, 2021 SCC OnLine SC 744, decided on 16-09-2021]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Coram of C. Viswanath (Presiding Member) and Justice Ram Surat Ram Maurya (Member) decided an issue with regard to handing over of possession of flat and cancellation of sale agreement in a builder — buyer dispute.

Arun Kedia (HUF), Arun Kedia and Sabita Kedia (Husband and Wife), members of HUF filed the present complaint.

What led to the filing of the complaint?

OP 1 made advertisements from time to time, inviting applications from prospective buyers for the purchase of the flats.

In 2013, complainants approached the OP and booked a residential flat for purchase and deposited booking charges, in the office of the OP. In June, 2013, a registered sale agreement was executed between the parties. By that time the complainant had deposited an amount of Rs 73,51,426 in the office of the OP. The balance amount was to be paid in instalments.

Complainants paid the amount of instalments as mentioned in the agreement as and when it was demanded by the OP. According to the complainants, thereafter they neither received any demand letter nor possession of the allotted flat was handed to them till March, 2016. They received a demand letter but as in this letter no date of delivery of possession was mentioned as such, they did not deposit the amount demanded in it, rather wrote letters requesting to handover possession over the flat allotted to them.

It was also stated that the complainants were not allowed to go to the site and verify the progress in construction. OP assured the complainants that they would be given possession within a short time.

When the registered notice was served to the OP, they unilaterally cancelled the agreement, mentioning therein that in spite of the demand letter, they had not deposited the instalment as fixed in the agreement.

Complainants requested and sent registered notices to OP to cancel the agreement and hand over the possession, but since the notices were not complied with, the present complaint was filed.

Analysis, Law and Decision

Whether the complainants were defaulter in payment of instalments as fixed in the agreement in spite of the notice given by the OP, they failed to pay it within 7 days and hence the OP exercised its power under the agreement and revoked the agreement?

OR

OP had failed to complete the construction till March 2016 and in order to cover its default, the agreement was cancelled in a high-handed manner, to harass the complainants and divert their mind from asking possession?

Bench noted that the agreement fixed reciprocal liabilities upon both parties.

Further, it was added that if the opposite party has not abided by the terms of the agreement and committed a serious breach then it cannot blame the complainants that they have not deposited the instalments well within time or within seven days issue of the letter of demand.

Commission held that there was nothing on record to prove that the demand letters were actually issued to the complainants. Therefore, the allegation that the complainants committed default in payment on instalment for which the agreement was cancelled was not proved.

Adding to the above reasoning, Clause-14 of the agreement requires service of 30 days prior notice in writing of its intension to terminate the agreement. No such notice was issued by the opposite party to the complainants. Cancellation of agreement, of which the intimation was given through letter, was illegal. 

Coram held that there was nothing on record to show that till March, 2016, the construction was completed and a completion certificate was obtained from the competent authority.

According to Section 8 of the Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, if the builder is not able to hand over the possession over the building/flat within the time specified in the agreement then the builder is liable to pay interest to the purchaser of the flat for the period for which the possession has not been handed over.

Due to latches on the party of the OP, the complainants suffered a loss. The agreement for sale had been cancelled illegally and malafide, in a high handed manner and the complainants were forced into litigation.

Commission directed the OP to handover the possession to the Complainants after taking balance sale consideration within 2 months and execute the final deed of transfer. OP shall also pay simple interest @6% p.a.to the complainants on the amount deposited by them from the due date of possession to the offer of possession after obtaining the Occupancy Certificate.  [Arun Kedia (HUF) v. Runwal Homes (P) Ltd., 2021 SCC OnLine NCDRC 189, decided on 24-06-2021]


Advocates before the Commission:

For the Complainant: Mr. R.M. Kedia, Advocate

Ms. Sabita Kedia, Complainant in person

For the Opp. Party: Ms. Anita Marathe, Advocate

Case BriefsHigh Courts

Delhi High Court: Rajiv Sahai Endlaw, J., passed a decree for recovery of possession in favour of the plaintiffs without a trial, where it was found that the defendants were insisting upon the recording of evidence and a trial only to defer the evil day of a decree being passed against them.

Factual Matrix

In the instant matter, plaintiffs’ purpose for the institution of the case was:

  • For declaration of their title and ownership of ground floor of property.
  • For recovery of possession thereof.
  • For ancillary reliefs against defendants 1 to 8 namely: (a) Arun Jethmalani, (b) Mohiney K. Jethmalani, (c) Ashish Hingorani, (d) C.V. Hingorani, (e) G.V. Hingorani, (f) Tulsi V. Hingorani, (g) Padma V. Hingorani, and (h) Delhi Development Authority (DDA).

Plaintiffs submitted that Devi Verhomal Hingorani was the owner of the property comprising of two and a half storey building with land underneath. After her demise, defendant 3 i.e. Ashish Hingorani became the owner of the ground floor of the property; defendants 6 and 7 i.e. Tulsi V. Hongorani and Padma V. Hongorani became the owner of the first floor of the property. Defendant 5 i.e. G.V. Hingorani became the owner of the second floor of the property and defendant 4 i.e. C.V. Hingorani was the named executor under the Will.

Ashish vide an agreement to sell, sold the ground floor of the property to the plaintiffs and on receipt of the entire purchase consideration executed the Will, Receipts, Affidavits, Indemnity Bonds, Special Power of Attorney in favour of the plaintiffs.  Since 1992, plaintiffs have been in the possession of the property. Further, the plaintiffs permitted defendants 1 and 2 i.e. Arun and Mohiney to access the ground floor as the caretaker.

Further, it was stated that Mohiney, the sister of the husband of plaintiff 1, during a conversation with the husband of plaintiff 1 mentioned that the ground floor belonged to her as she had purchased the same from Ashish.

With regard to first and second floors of the property, plaintiffs got to know that the owners of the said floors had executed certain documents including the Special Power of Attorney in favour of the husband/father of Mohiney/Arun. It was further learnt that the husband/father of Mohiney/Arun had also obtained a Special Power of Attorney from Ashish.

Leasehold rights of the land underneath the property had been converted into freehold vide Conveyance Deed jointly in favour of defendants 3 to 7, to whom different portions of the property were bequeathed under the Will.

Later, in 2012, when plaintiff 2 visited the property, found that Arun had opened his office on the ground floor and Arun and Mohiney were claiming themselves to be the owners in the possession of the ground floor of property.

In 2013, summons were ordered to be issued to Arun, Mohiney and Ashish to be restrained from creating any third party rights in the ground floor of the property.

Since both Arun and Mohiney died, they were substituted by the wife, son and daughter of Arun; another son of Mohiney was also impleaded as an heir.

High Court’s Analysis and Decision

Bench on perusal of the facts and circumstances of the case found that no trial was required in the matter, plaintiffs were entitled to a decree for possession:

  • Defendants contention that since issues were framed trial was necessary, was no longer res integra. Bench referred the decision of Supreme Court in  Charanjit Lal Mehra v. Kamal Saroj Mahajan, (2005) 11 SCC 279 and Delhi High Court’s decision in Parivar Seva Sansthan v. Veena Kalra, 2000 SCC OnLine Del 469.
  • As far as the plea of the defendants, of oral Agreement to Sell is concerned, the defendants, notwithstanding the pendency of this suit since the year 2013, have till date not initiated any action for specific performance thereof and the claim, even if any of the defendants for specific performance, would now be barred by time.
  • The defendants have pegged their case on adverse possession and all that needs to be adjudicated at this stage is, whether there is any plea of adverse possession and whether the plea, even if any of adverse possession, is such which is required to be put to trial. If the defendants fail on their plea of adverse possession, a decree for possession would be liable to be passed against them.
  • The existence of the Agreement to Sell, even if any, does not entitle the defendants to defend a claim for possession on the basis of title by the owner. The only remedy of an agreement purchaser is to sue for specific performance and which has not been done by the defendants.
  • It is quite obvious that it was only pursuant to the order dated 5th November, 2019, that the yarn of Arun and Mohiney having separate defences, with Arun having a defence of agreement purchaser and Mohiney having a defence of adverse possession, has been spun/woven.
  • The contention, that while the possession of Mohiney was adverse to the plaintiffs, the possession of Arun was as agreement purchaser from the plaintiffs, cannot be accepted.
  • Once Arun and Mohiney, both were in possession of ground floor of the residential House No. B-59, East of Kailash, New Delhi, there can be no plea of adverse possession by one when the other is claiming to be in possession as an agreement purchaser.
  • Owing to the relationship between Arun and Mohiney and owing to the lack of any plea, of Arun and Mohiney being in possession of the separate portions of the ground floor of the residential House No. B-59, East of Kailash, New Delhi, the plea of adverse possession and the argument of adverse possession on behalf of Mohiney, is nothing but a red herring and which clever drafting and arguments cannot and ought not make the Court put to trial something which can otherwise clearly be seen as a ruse in day light and permits of no ambiguity.
  • It is quite obvious that the defendants were insisting upon recording of evidence, to defer the evil day of a decree for recovery of possession being passed against them. However, the Court has to cut through the web of pleas spun in the written statement of the defendants and if finds the plea of adverse possession on which emphasis is laid today, to be without any substance, on account of other pleas in the written statement, is not to pedantically and mechanically order evidence to be recorded and allow its process being abused. The time and resources of the Court can be utilised for appropriate cases indeed requiring recording of evidence and trial and in which findings cannot be returned without such trial.

Mala fides of the defendants were also found much evident.

Plaintiffs were held entitled to a decree for recovery of possession forthwith. The Court expected that the defendants at least now will see reason and not indulge in any further litigation on false mutually destructive pleas bordering on contemptuous conduct interfering with administration of justice. The mesne profits at Rs 30,000 per month were fixed by the Court. [Asha V. Wadhwani v. Arun Jethmalani, 2020 SCC OnLine Del 480, dated 18-3-2020]

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]