Corp Comm LegalExperts Corner

The doctrine of constructive notice is often criticised for being used extensively and harshly against the parties, particularly in property related matters. In certain situations, the parties might not have the means or resources to inquire or acquire knowledge about the title of a property and other related information.

In India, it is a major problem to prove the title of a property. This is because in India the system of “presumptive titles” is prevalent where title documents are not certified by the State. They remain private documents and do not get the status of public records.[1] This is because the present system under the Registration Act, 1908 only provides for registration of deeds and documents. Moreover even though the Transfer of Property Act, 1882 mandates compulsory registration of transfer of immovable property, there is still lack of proper documentation in this regard. More often than not, this contributes to unsatisfactory state of affairs in conveyancing the transfer of legal title of a property from one person to another.

Due to the lack of clarity in the title of ownership, the onus to inquire and confirm about the ownership and other title related facts lies with the buyer. It is difficult for a buyer to ascertain such facts due to the existing ambiguity and lack of conclusive ownership. A conclusive title may be defined as an unassailable and conclusive proof of ownership of property.[2] The Ministry of Rural Development had prepared a Model Land Titling Bill, 2011, wherein it proposed to set up a Title Registration Authority and an Appellate Tribunal. The conclusive title system provides for certainty of title to land. The proposed system registers the title gives finality and indefeasible rights which cannot be overturned or annulled. Therefore, it does away with repeated, imperfect and costly examination of past titles which is often a problem to the parties while acquiring all the information related to the property.

The court imputes constructive notice on parties in cases of failure to find out all facts related to the title of the party. In certain situations the implication of the doctrine of constructive notice can be harsh and unreasonable on the parties as this notice is implied irrespective of the difficulties in acquiring complete knowledge of the title deeds. The title documents are not certified by the State and therefore remain private, making it very difficult for the parties to locate the documents and find out all the information. The doctrine of constructive notice, however, fails to recognise the ground realities and practical difficulties and tends to arbitrarily impose notice on the parties on their failure to ascertain and verify certain facts for safeguarding his one interest.

Conclusive title of ownership removes the scope of bona fide mistakes as to the past titles or existing burdens affecting the subject property. It also removes the ever-present possibility of fraud by duplication or suppression of deeds, and gives State-guaranteed safety. A conclusive title system requires a single agency to handle property records. Moreover, such single agency should at any given moment mirror the ground reality of the property records. This is known as the mirror principle. In addition, the curtain principle should also be applicable. This principle requires that the record of a title should depict the conclusive ownership status and probing into past transactions and titles of the property should become unnecessary.[3]

Once a property is registered with the aforementioned land titling centre, there shall be a detailed title search including probing into past ownership, transactions and litigation history (if any) to establish non-encumbrance on the land. Thus, before purchasing a property, the buyer would have a clear understanding of the ownership issues and past record. Hence, granting of conclusive title of ownership will make the doctrine of constructive notice redundant and inapplicable to the parties because then there shall be no ambiguity with regard to the title of a property and a court shall not have to impute constructive notice on any party due to their failure to acquire the desired knowledge. This system is followed in Australia, Canada and the United Kingdom wherein one has to prove conclusive title of the property which is thereafter registered. Thereafter, the titleholder registered with the State cannot be dispossessed.

Constructive notice is the equity which treats a man who ought to have known a fact, as if he actually does know it. It presupposes, that in property transactions, a transferee ought to ascertain and verify certain facts for safeguarding his one interest. These facts may relate to the property or the transferor. The basic objective behind these inquiries and verifications is to find whether the property sought to be transferred is free from any charges or encumbrances and whether the transferor is eligible to convey a valid title to the transferee. The rule that applies here is that when a prudent man enters into the market, he would like to take the property free from any charge or encumbrances. Therefore, the rule of “caveat emptor” or “buyer beware” applies here and the transferee has to make inquiry about (a) whether the transferor is competent to make the transfer; (b) whether there is a charge due over the property; and (c) whether any person has temporary or permanent claim over the property.

Constructive notice is only imputed in situations where a person has means of knowing a particular fact but has failed to do so. There exists circumstances which ought to put him on an inquiry, which if prosecuted would lead to discovery of it.[4] However, if the person has no means or opportunities to obtain information about something, notice cannot be imputed on him about that thing. Thus, when the purchaser does not have the slightest idea or suspicion about any earlier agreement entered into, far away from the place where the property is situated, it cannot be said that there was any wilful abstention from the party.

Therefore, the theory upon which courts proceed in holding possession to be constructive notice of whatever rights the occupant may have in the premises is that possession, being prima facie evidence of some interest in the land by the tenant, should normally place a purchaser upon guard and lead him to investigate the extent and nature of such interest. Any failure on his part to make inquiry is, therefore regarded as an exhibition of negligence or bad faith which ought to place him in no better position than that of a purchaser with full knowledge of the adverse claim.[5]

However, in certain situations, this doctrine has been extended to cases hardly within its jurisdiction. For instance, in a case, it was held that possession by one tenant in common is constructive notice of an unrecorded conveyance to him from his co-tenant as against subsequent mortgagee of the latter who had no actual notice. As the object of registry system is to facilitate transfers of property, the purchaser ought, unless there is some potent reason to the contrary, to be able to rely upon the registered records.

In company law parlance, the effect of the doctrine of constructive notice is harsh on the outsider who is entering into a contract with the company because that person is deemed to have a constructive notice of the contents of the documents of the company. In case of default of any condition, the outsider cannot claim relief on the ground that he was unaware of the powers of the company in case of ultra vires of the company.

Moreover, this doctrine does not take notice of the realities of business life because people know a company mostly through the reputation of its promoters and officers and not through its documents. As an antithesis, a new theory called the doctrine of indoor management has been evolved by the courts.[6] The doctrine of constructive notice seeks to protect the company against the outsider; whereas the doctrine of indoor management operates to protect outsiders against the company. The rule of indoor management is based upon obvious reasons of convenience in business relations.

Firstly, the memorandum and articles of association are public documents, open to public documents. However, the details of internal procedures are not thus open to public inspection. Therefore, as per the application of this theory, an outsider is presumed to know the constitution of a company but not what may or may not have taken place within the doors that are closed to him. Moreover, as discussed above the passing of the Land Titling Bill proposed in 2008 shall provide conclusive title of ownership which would in turn reduce if not remove the ambiguity surrounding the information related to the past and present titles.

A shift from the presumptive titling system to the conclusive titling system for recording land titles will make the use of the doctrine of constructive notice redundant as the buyer will only have to prove the conclusive title of the property.


*Bhumesh Verma is Managing Partner at Corp Comm Legal and can be contacted at bhumesh.verma@corpcommlegal.in. **Abhisar Vidyarthi is a Student Researcher with Corp Comm Legal (4th-year student of Maharashtra National Law University, Mumbai)
[1]    Why You May Never Prove Ownership of Your Land, <http://www.indiaspend.com/snapshots/why-you-may-never- prove-ownership-of-your-land>, last accessed on 20-4-2019.

[2]    Dr Madalasa Venkataraman, What is Title Guarantee Worth in Land Markets, IIMB-WP N0. 473, <https://iimb.ac.in/ research/sites/default/files/WP%20No.%20473.pdf>.

[3]    Rita Sinha, Moving Towards Clear Land Titles in India: Potential Benefits, A Road Map and Remaining Challenges <siteresources.worldbank.org/INTIE/Resources/R_Sinha.docx> last accessed on 29-8-2017.

[4]    Ram Coomar Coondoo v. Mcqueen, (1872) 11 Beng LR 46.

[5]    Limitations of the Doctrine of Constructive Notice by Possession. Harvard Law Review 18, No. 3 (1905): 218-19. 33 Royal British Bank v. Turquand, (1856) 6 E&B 327.

[6]    Royal British Bank v. Turquand, (1856) 6 E&B 327.

Case BriefsTribunals/Commissions/Regulatory Bodies

Appellate Tribunal, Prevention of Money Laundering Act (New Delhi): A Coram of Justice Manmohan Singh (Chairman) and Mr. G.C. Mishra (Member) allowed an appeal under Section 26 of the Prevention of Money Laundering Act, 2002 against an order passed by the Adjudicating Authority for attaching property.

In the instant case the CBI registered a criminal case under Section 120-B of Penal Code, 1860 read with Sections 7, 12, 13(2) and 13(1)(d) of Prevention of Corruption Act, 1988 against one Joint Director of Enforcement Directorate (ED) wherein it was alleged that he assisted the appellant (herein), indulging in corrupt practices in an investigation. It was also alleged that they had taken a huge amount of bribes as quid-pro-quo for acts of omission and commission during the said investigation. As a result, the appellant was arrested by CBI and a charge sheet was filed against him. On the basis of the registration of the case by CBI, a Prevention of Money Laundering Act, 2002 (PMLA) case was also recorded at New Delhi. The ED provisionally attached the immovable property of the appellant which was confirmed by the Adjudicating Authority.

The respondent’s counsel, Shilpi Satyapriya Satyam, contended that the aforesaid property was attached as a “value thereof” in accordance with provision made under Section 2(1)(u) read with Section 2(1)(v) of the PMLA. The counsel for the appellant, R.K. Handoo, drew the attention of the Tribunal to the provision in Section 8(3)(a) of PMLA, 2002 as amended by Act 13 of 2018 which reads as, “a) continue during [investigation for a period not exceeding ninety days or] the pendency of the proceedings relating to any [offence under this Act before a court or under the corresponding law of any other country, before the competent court of criminal jurisdiction outside India, as the case may be. On the basis of this the counsel contended that the confirmation order of attachment passed by the Adjudicating Authority did not survive. Also, no prosecution complaint was filed against the appeal, and hence the appeal be allowed.

The Tribunal found, “It is strange to note here that an immovable property of a person has been made part of a prosecution complaint for confiscation without making that person as a party and affording that person an opportunity to defend his case.” It was further noted, “Section 8(3)(a) of PMLA has been amended by the Act 13 of 2018, wherein a limitation period has been provided for continuation of attachment or retention of property or record post confirmation of attachment/retention and it is the intention of the legislature not to allow the Investigating Authority to get the property attached or retained the record/documents/items indefinitely in the name of investigation.”

Thus, the appeal was allowed. The Tribunal directed the appellant to move to the concerned Special Court for an appropriate remedy, wherein the Prosecution Complaint was pending and his property was made part and parcel of that complaint.[Sanjay Kumar v. Deputy Director Directorate of Enforcement, New Delhi, FPA-PMLA-2510/DLI/2018, decided on 12-04-2019]

Case BriefsSupreme Court

Supreme Court: In a case where a widow claimed possession of a property mutated in her name on the basis of the oral gift from her husband before the enforcement of the Hindu Succession Act, 1956, the bench of AM Khanwilkar and Ajay Rastogi, JJ said,

“Section 14(1) of the Act, 1956 clearly envisage that the possession of the widow, however, must be under some vestige of a claim, right or title or under any of the devise which has been purported under the law.”

The Court also explained the concept of mutation and said.

“the mutation of a property in the revenue records are fiscal proceedings and does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation has been ordered, to pay the land revenue. At the same time, the effect of a declaratory decree to restore the property alienated to the estate of the alienor and until and unless the alienees are able to convince the court that they have no subsisting interest in the property, the heirs of the alienees would be entitled to the benefits of the property as per the law of succession.”

The Court, hence, held that in the instant case, the widow although was holding possession but not under any of the devise referred to under explanation to Section 14(1) of the Act, 1956 and mere possession would not confer pre­existing right of possession over the subject property to claim full ownership rights after the Act, 1956 came into force by operation of law.

[Ajit Kaur v. Darshan Singh, 2019 SCC OnLine SC 470, decided on 04.04.2019]

Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench comprising of  Devan Ramachandran, J. granted relief to a helpless senior citizen holding that the wife of her deceased nephew was obliged to maintain her.

Petitioner herein was the wife of nephew of a senior citizen who had executed a gift deed in favour of her now deceased nephew, with a specific covenant therein that he will take care of her during her life time. However, petitioner’s husband (nephew) subsequently died leaving the gifted property to petitioner. Subsequently, the senior citizen was driven out of her house by the petitioner and was taken back only under order of the Maintenance Tribunal.

The instant petition assails the order of Maintenance Tribunal contending that petitioner was not a ‘relative’ statutorily obligated to take care of the senior citizen, she being only the wife of nephew of senior citizen.

Sole question for determination was: whether the wife of deceased nephew of a senior citizen was obligated as per Maintenance and Welfare of Parents and Senior Citizens Act, 2007 to maintain the senior citizen after her husband’s death solely because the senior citizen had, during the life time of nephew, gifted property to him with the reciprocal covenant to maintain her.

The Court noted that as per Section 2(g) of the Act, a person would be construed to be relative of a childless senior citizen, if such person is in possession of or would inherit his/her property. Further, as per Section 4(4) of the Act, any person being a relative of a senior citizen, who is in possession of the property of such citizen, would be obligated to maintain him/her. Thus, a conjoint reading of these two provisions bound the petitioner with obligation to maintain senior citizen.

In view of the aforesaid interpretation, the petition was dismissed.[S. Sheeja v. Maintenance Appellate Tribunal,2018 SCC OnLine Ker 4949, decided on 14-11-2018]

Case BriefsHigh Courts

Patna High Court: A Single judge bench comprising of Ahsanuddin Amanullah, J. while hearing a civil writ petition ruled that lawful possession of a property cannot be interfered with by way of ouster or locking of the premises in the absence of a Court order to that effect.

Petitioners herein were the land owners and tenants of certain shops in Gaya and respondents were the buyers of these shops. The present petition was filed assailing the action of State authorities whereby petitioners’ shops were locked and the main entrance thereto was forcibly blocked by unloading sand and stone chips in front of the said shops. Petitioners submitted various documents and circumstances to indicate their lawful ownership/ tenancy of the land/ shops in question.

The primary question for consideration was as to whether the District administration or any private person can forcibly seal and put lock in the premises occupied by another person without following due process of law.

The Court noted that the report submitted by District administration showed that the petitioners were in lawful possession of the subject premises. Thus, without going into the question of title or otherwise, it was held that once the tenant petitioners were in possession of the shops in question, they could not have been dispossessed or their shops locked without the order of a civil court.

The petition was disposed of with a direction to the District Magistrate and Senior Superintendent of Police, Gaya to ensure that the possession of shops in question be handed over to the petitioners after taking due receipt of the materials inside the shop.[Bigan Mistry v. State of Bihar,2018 SCC OnLine Pat 2148, decided on 28-11-2018]

Case BriefsHigh Courts

Karnataka High Court: A Single Judge Bench comprising of S.G. Pandit, J. while hearing a petition praying for appointment of Court Commissioner, held that a property dispute seeking injunctive relief does not require determination of age of the suit property.

Petitioner, who was plaintiff in a property dispute, filed an application in lower court under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 for appointment of Court Commissioner to ascertain age of the suit property. The trial court rejected this application and aggrieved thereby the instant writ petition was filed.

Petitioner contended the age of building to be over 25 years but the respondent submitted that it was constructed only 2 years before filing of the written statement. Submission on behalf of the petitioner was that appointment of Commissioner is, therefore, necessary to ascertain the age of building at suit schedule.

The Court held that the suit filed in lower court was for injunction and it was for the petitioner to establish his possession over the suit schedule property by producing cogent evidence before the court. It was not necessary to determine the age of building situated at the suit schedule as the same was of no consequence to the relief sought for by the petitioner in the pending suit.

Accordingly, the writ petition was dismissed.[B.M. Ramasubba Reddy v. B.R. Venkataravanappa, 2018 SCC OnLine Kar 2213, decided on 09-11-2018] 

Case BriefsForeign Courts

Court of Appeal of Sri Lanka: An appeal was filed before a Single Judge Bench comprising of M.M.A. Gaffoor, J., against a judgment of district judge where the original plaintiff instituted an action seeking partition of a land.

Claim of plaintiff regarding the land was to receive undivided 1/2 share against the share of defendants whereas the two defendants were entitled to receive undivided 1/4 share according to his amended petition. The other defendants averted that they were exclusively entitled to the plantations and improvements in the land sought to be partitioned in this action. District court favoured the other defendants. Subsequently, the original plaintiff died and his son was substituted in his place as plaintiff-appellant who filed this appeal for setting aside of the above order of District Court.

Supreme Court observed after perusal of the plaint that the substituted plaintiff had amended the original plaint claiming that he was entitled to an undivided 1/2 share against two others entitled to an undivided 1/4 share while in the original plaint it was to be divided between four defendants. It was observed that substituted plaintiff was not completely aware of the facts of the case due to his admission of the fact that his father, the original plaintiff, was well aware of the facts of the case compared to himself and due to the same he had to amend the plaint. Appellant failed to show the existence of facts which could show his legal right or liability, thereby he failed to prove his case. Therefore, the appeal was dismissed. [Ahamed Abdulla Marikkar Mesthiriyar  Mohamed Ismail v. Sammon Hadjiar,2018 SCC OnLine SL CA 85, decided on 01-10-2018]

Case BriefsForeign Courts

Supreme Court of Appeal of South Africa: An appeal was filed against the order of Northern Cape Division of the High Court, Kimberley where an immovable property was forfeited to the State before a 5-Judge Bench comprising of Majiedt, Swain, Mathopo, Schippers, JJA. and Mokgohloa, AJA., of Supreme Court of Appeal.

The facts of the case were that the appellant was the mother of the deceased who was the Head of Department (HoD) of the Northern Cape Department of Social Services and Population Development, in whose name the immovable property was registered. Respondent alleged the deceased for misusing her powers as a HoD. She renovated her house from the benefit accrued from the improper and corrupt relationship between her and Trifecta, a company to which she later passed a tender. The matter was investigated by Parliament where she was found guilty of charges of non-declaration of benefits received from Trifecta and submission of the false sworn statement.  The matter went to High Court where deceased submitted her renovation costs to be covered under a loan agreement between deceased and Trifecta. Court ordered the property to be forfeited to State finding the property and shares to be the proceeds of unlawful activities such as corruption and money laundering under Section 50(1) of the Prevention of Organised Crime Act, 1998. The question before the Court was to see if the property was actually the proceeds of unlawful activities under the Act and if the Trial Court rightly forfeited the entire property to State.

Supreme Court found the deceased version of events contradictory from parliamentary enquiry and this Court. Thus, High Court was correct in holding that the loan agreement was created after the fact to cover up the true reason behind the renovations and that the property was proceeds of unlawful activities. On the question of complete forfeiture of property to State, the Supreme Court observed that the purpose of forfeiture was to remove the incentive for crime and not to punish the offender. The fact that the deceased had paid a certain amount to Trifecta in return of renovations had to be deducted from the renovation costs. Therefore, High Court’s order to forfeit entire property to State was set aside. [Gesiena Maria Botha No v. National Director of Public Prosecutions, 2018 SCC OnLine ZACAC 4, dated 11-10-2018]

Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of Sanjeev Kumar, J., dismissed a second appeal filed against the order of the appellate court.

The appellant and the respondent were joint owners of a particular piece of property, both of them had constructed their respective houses on the same piece of land. The dispute arose when the appellant used started construction on the land which was a common passage for both the parties.

The main issue, in this case, was whether a co-owner can seek an injunction, restraining the other co-owner from using a joint property or raising construction thereon without seeking relief of partition.

The Court observed that it is undisputed that the suit property was a common passage for both the parties and it is not the case of the defendant that except for the land under their respective occupation in the shape of construction of the houses, the rest of the land is vacant and un-partitioned. The existence of common passage was also backed by the evidence of Patwari who had inspected the land in presence of both the parties. In cases where one co-owner of a property encroaches upon the property which is jointly owned by all the co-owners, then in those cases, a suit for injunction-simpliciter is maintainable.

However, the Court held that there is no absolute law that a suit for injunction by one co-sharer against another co-sharer is not maintainable and the co-sharer approaching the Court should be relegated to the alternative efficacious remedy of seeking partition. Hence, the Court upheld the order of the appellate court and dismissed the appeal of the appellant. [Girdhari Lal v. Ram Lal, 2018 SCC OnLine J&K 693, order dated 03-10-2018]

Case BriefsHigh Courts

Jammu & Kashmir: A Single Judge bench comprising of Sanjeev Kumar, J. while dealing with a civil revision petition directed against the judgment of trial court passed in relation to Section 9 of the Jammu & Kashmir Specific Relief Act, 1977 declined to interfere with trial court’s judgment directing re-possession in favour of respondent but set aside the order directing payment of mesne profits to the respondent.

Facts of the case are that a shop was purchased by the plaintiff-respondent and since its purchase, the property was in his possession and under his lock and key. In October 2002, the petitioners-defendants broke open the locks of the plaintiff-respondents house, stole all the documents including title deed and also broke open locks of the suit shop and forcibly occupied the same in his absence.

The respondent-plaintiff filed a suit under Section 9 of the Act seeking possession of the suit shop and also for recovery of mesne profits at Rs 2000 per month from the date of illegal occupation of the shop by the petitioners-defendants. After filing of the written statement, petitioner-defendant did not participate in the proceedings and appreciating evidence adduced before the trial court, the court decreed the suit in favour of plaintiff-respondent and also granted the decree for mesne profits at Rs 2000 per month for wrongful use and occupation of the suit property.

The High Court discussed at length, the scope of interference with an order or decree passed in a suit instituted under Section 9 of the Act and held that the inquiry in a suit under Section 9 of the Act is limited to the determination of three questions: (i) if the plaintiff is formally in settled possession, (ii) whether the plaintiff was dispossessed of immovable property without his consent other than in due course of law, and (iii) whether the dispossession has taken place within six months immediately preceding the date of the institution of the suit.

The revision petition was disposed of holding that court cannot interfere with the findings of fact of the trial court by re-appreciating the evidence and as such the re-possession order was upheld. However, it was held that under Section 9 the court did not have jurisdiction to grant mesne profits and as such, trial court’s order to that effect was set aside. [Mohan Lal v Madan Lal,2018 SCC OnLine J&K 642, Order dated 19-09-2018]

Case BriefsHigh Courts

Kerala High Court: A 2-Judge Bench comprising of K.Vinod Chandran and Ashok Menon, JJ. dealt with an appeal against the order of Income Tax Appellate Tribunal, where order of first appellate authority was affirmed. It was found that sale of assessee’s land comes under exception of capital gains under Section 45 of the Income Tax Act, 1961 and hence was not taxable.

Assessee is alleged with not declaring capital gain in the income return filed when he sold his property to the owners of a newspaper. Assessee contended that the land in question is an agricultural land and thus is not taxable. Assessee only showed a certificate issued by Village Officer as an evidence to show land as agricultural. Court found that this certificate could not have been relied on as it was issued after sale. Assessee submitted that under Section 2(14) of the Act according to which only those land come under the category of capital asset which comes under (a), (b) of clause (iii).

The High Court stated that merely the fact that land does not come under above provision does not exclude property from the definition of capital asset. High Court viewed that assessee had failed to show that the land in question was an agricultural land thus sale of this land would be taxable under the Act. Therefore, orders of first appellate authority and the Tribunal were set aside. [Principal Commissioner of Income Tax v. Kalathingal Faizal Rahman, 2018 SCC OnLine Ker 3239, decided on 02-07-2018]

 

 

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Valmiki Mehta, J. dismissed a regular first appeal filed under Section 96 CrPC, against the judgment of the trial court whereby appellant’s suit was rejected as barred by res judicata.

The suit for declaration, partition, possession and permanent injunction was filed by the appellant relating to the property purported to be received by him on the partition of the property after the death of his father. The respondents filed an application under Order VII Rule 11 CPC pleading that identical issue of ownership of the suit property had been raised and decided against the appellant in an earlier suit for injunction. The trial court held that the question of ownership of the suit property was directly in issue in the said injunction suit. The instant suit was rejected by the trial court as barred by res judicata. Aggrieved thus, the appellant was in appeal.

The High Court, in order to settle the issue, referred to various decisions of the Supreme Court and observed that once in a suit for injunction, title is in issue and decided, the said finding of the title will operate as res judicata in a subsequent suit where title is an issue. The Court was of the view that since the claim of ownership of appellant in the suit property was already decided against the appellant in the earlier suit, therefore, the trial court was justified in dismissing the present suit being barred by res judicata. In view of the discussion as mentioned hereinabove, the High Court held the appeal to be sans merit. The appeal was held to be an abuse of process of law and was dismissed with costs amounting to Rs 25000. [Randhir Singh v. Satish Kumar,2018 SCC OnLine Del 9879, dated 16-07-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Dipak Misra, CJ and A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ. sat to decide an appeal filed by the Wild Life Warden. The Hon’ble Bench held that elephant tusk is a Government property and declaration to that effect is to be found under Section 39(1)(c) of Wild Life (Protection) Act 1972.

It was alleged against the respondent that he had unauthorizedly collected and stored elephant tusks and unlicensed gun and other accessories. Consequently, criminal proceedings were initiated against him under Kerala Forest Act, 1961. However, the respondent was acquitted in the case. Assistant Wild Life Warden ordered confiscation of the above-mentioned items along with the jeep of the respondent. The order was appealed against by the respondent and the matter finally reached  Kerala High Court, wherein the learned Single Judge held that elephant tusk was not a forest produce as it was not mentioned as such in the Act of 1961. Feeling aggrieved the Wild Life Warden approached the Apex Court.

The Supreme Court limited its decision on the issue as to whether elephant tusk is the property of the Government. The Hon’ble Bench referred to Section 39(1)(c) of the Wild Life Act 1972 which inter alia declares that any article related to an animal hunted in a sanctuary or a National park, is a property of the Central Government. In accordance with the stated provision, the Court held that there was not an iota of doubt that elephant tusk is the property of the Government. Having concluded thus, the Court found it immaterial to decide whether elephant tusk is a forest produce under the Act of 1961. [Wild Life Warden v.  Komarrikal Elias, Civil Appeal No. 4952 of  2008, dated 08-05-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission: While hearing upon the present matter wherein the issue was related to few people perpetuating fraud by way of producing false receipts with official stamps, thereby resulting into serious losses being accrued by the parties, the Central Information Commissioner, M. Sridhar Acharyulu, held that the concerned public authority (the Post Office) has failed miserably to initiate any inquiry or action against its staff members who generated such fraudulent receipts. The Commissioner further berated the public authority for their failure to take any action by stating that such callousness would seriously affect the rights of parties and will create hurdles in adjudication. Therefore the Commission directed respondent to provide details of the date on which documents were removed and also directed the SSPO/CPIO to show why maximum penalty should not be imposed upon them for not giving a proper reply to the appellant’s RTI and for not attending the second appeal.

As per the facts of the matter, the appellant filed a RTI seeking to know whether he was sent a legal notice via registered post regarding sale of his property and provide any record in respect of issuance of said registered post. The appellant contended that he never intended to sell his property, however a lawyer created a false record of sale, and even though no notice was received by him, but a proof of service was created which resulted in ex parte proceeding against him, depriving him of his property. It was further stated that receipt in question issued by the post office did not bear any signature and because of such forged service proofs, people like him are losing their valuable properties in court litigation as, on the basis of this receipt the opposite party claimed it to be a legal notice. On filing RTI with the Post Office, the concerned authority informed the appellant that record of registered article has been weeded out due to lapse of time period as per departmental rule, hence, the information cannot be provided

The Commission agreeing with the issues raised by the appellant questioned the District Court Post Office as to how they can issue a receipt without any signature. Therefore the appellant was right in seeking an explanation and details of action against this kind of issuance of receipts. The Commission also observed that this small level fraud is widespread all over the country causing serious loss to the parties discrediting the system of law and adjudication only because of inaction of the administrators of Post Office against falsification of service proof. The Commission noted that the miserable tactics of dealing with the issue was also revealed in the authority’s reply to the RTI filed by the appellant. It was held that certain unscrupulous elements in the Post Office have effectuated this fraud of producing wrongful receipts with official stamps and the public authority has easily escaped from its duty of accountability as there was no signature or name of the person who prepared that receipt. [Ashok Kumar v. PIO, District Court Post Office, 2017 SCC OnLine CIC 735, decided on 18.05.2017]

 

Case BriefsSupreme Court

Supreme Court: Holding that the property of a person who died during pendency of trial for misappropriation could not be attached by the State under Clause 3 of the Criminal Law Amendment Ordinance of 1944, the bench comprising of  S.A. Bobde and Amitava Roy JJ, set aside the orders of attachment and held the findings recorded by Learned Single Judge of High Court to be perverse.

The deceased Ramachandraiah, who was the husband of Appellant No. 1, and father of Appellant No. 2 and 3, was prosecuted along with one co-accused for misappropriation of property under Sections 409 and 468 read with Section 471 of the Penal Code, 1860. Subsequent to his death awaiting trial, his co-accused was acquitted of guilt, but the Trial Court adduced from the material on record that Ramchandraiah was solely responsible for the alleged crimes, although beyond the pale of adjudication. Thereafter the State sought to attach the property of the deceased via application under the Criminal Law Amendment Ordinance, 1944, in which interim attachment was granted by the District Judge under Clause 4, and later made absolute. This attachment was contested by Appellant under Section 482 of the CrPC, failing which Appeal was made to this Court.

The Court held that while Clause 4  allowed attachment pending conviction, Clause 3 of the aforesaid amendment required the Government to make application for attachment to the District Judge of the place of habitual residence or business, which required the focal person to be in existence. Further, if the orders of attachment were to cease operating upon acquittal, the same must occur if prosecution abates, or conviction is rendered impossible by death of the person whose property is sought to be attached. The oft-reiterated concept of presumption of innocence till proven guilty was reiterated again.

The Court signified a ‘gross miscarriage of justice’ had occurred at various stages. Firstly, a fortiori, criminal proceedings may not continue against a deceased who does not exist and cannot be convicted. Secondly, the finding that the deceased accused alone was responsible for the crime was null and void. Lastly, such a conviction could not be the basis of an attachment proceeding.[U. Subhadramma v. State of Andhra Pradesh, 2016 SCC OnLine SC 654, decided on 04-07-2016]

Case BriefsHigh Courts

Bombay High Court: In a judgment, a bench comprising of VM Kanade and CB Colabawalla, JJ  has ruled that a widow, even after she has remarried, has the rights over her former husband’s properties. In the present case, the petition was filed by a man against his former sister-in-law who had claimed the right over her deceased husband’s properties after she married another man.

The brother of the deceased relied  on the provisions of the  Hindu Widows’ Re-marriage Act, 1856, which stated the limited right and interest which a widow had in her deceased husband’s property would cease to exist if she remarries without express permission, and the next heirs of her deceased husband, or other persons entitled to the property, shall thereupon succeed to the same.

The Court ruled that provisions of the Hindu Succession Act, 1956 would prevail over the repealed Hindu Widows’ Remarriage Act, 1856. There was no provision in the Hindu Succession Act, 1956 which was pari materia with section 2 of the Hindu Widows’ Re-Marriage Act, 1856. The Court further observed that even after remarriage  she would qualify as Class I heir and the husband’s kin would still be a Class II heir.  It was further observed that a woman doesn’t lose rights over her dead husband’s properties – moveable and immoveable even if she remarries. Sanjay Purshottam Patankar vs. Prajakta Pramnod Patil, 2015 SCC OnLine Bom 3487, decided on 25th June, 2015

 

High Courts

Kerala High Court: In the instant case before the Court, where the petitioner- an environmental educator, challenged the order of the State Government to lease out 2 / 5.5 acres of the land of the Government School to the Thiruvananthapuram Development Authority (TRIDA) for construction of a bus-bay and shopping complex, a division bench of Ashok Bhushan CJ and A.M. Shaffique J refused to quash the order of leasing out of the land and directed TRIDA to construct bus-bay and shopping complex on the land of Government School without hampering functioning of the school and green cover of the area.

The Counsel for the petitioner P.B. Sahasranaman, contended that the transfer of the land of Government School to TRIDA violates Section 5 B of the Kerala Education Act, 1958. The Counsel further contended that the construction of bus-bay and commercial complex will affect the environment as it would involve cutting of trees at large scale. Per Contra, the Counsel for the respondent contended that the construction activities will not reduce any facility now enjoyed by the school and that the same will not cause any hindrance to the working of the school.

After perusal of Section 5 B of the Kerala Education Act, 1958, the Court observed that the provision talks only about restriction on the transfer of land appurtenant to a Government School vested with local authority under Section 5A of the Act, however, in the present case, the Government School does not vest with any local authority, and therefore Section 5B of the said Act is not applicable in the instant case. Accordingly, the Court refused to interfere in the decision of the State Government to transfer land of the Government School to TRIDA for construction of bus-bay and shopping complex, and directed the respondents to cut less than ten trees and plant thrice the number of trees, which are cut in the area leased out so as to maintain sufficient green cover in the area; not cause any hindrance to the functioning of the school and construct ten class rooms in lieu of the building which shall be demolished in the process of construction of complex, as undertaken by them in the statement filed in the writ petition. Anitha S. v. State of Kerala2015 SCC OnLine Ker 12900, decided on 07.07.2015