Case BriefsHigh Courts

Karnataka High Court: Suraj Govindaraj, J., allowed the petition and quashed the compromise decree in the original suit filed before Principal Senior Civil Judge at Hubballi in the Lok-Adalat proceedings.

The facts of the case are such that a compromise petition was filed before Principal Senior Civil Judge at Hubballi in the Lok-Adalat proceedings by a person claiming to be the power of attorney holder of the petitioner and as such the petitioner’s interest in the suit schedule property therein was compromised without the knowledge of the petitioner and therefore a fraud was committed on the petitioner by resorting to an abuse of the process of the Court and filing of a compromise petition in the Lok-Adalat. Thus instant petition was filed under Articles 226 and 227 of the Constitution of India praying to quash the compromise decree and restore the original suit before Principal Senior Civil Judge at Huballi on merits.

Counsel for petitioner Mr Mahesh Wodeyar submitted that the petitioner not having executed any power of attorney in favour of respondent 1, the power of attorney claimed by respondent 1 is fabricated one and as such neither the agreement of sale could be executed by respondent 1 in favour of respondent 2 nor could a compromise be entered into by the respondent 1 with respondent 2 for the Lok-Adalat to record. Thus, the petition needs to be allowed and the compromise recorded by the Lok-Adalat be set aside.

Counsel for the respondent Mr Padmanabha Mahale submitted that respondent 1 is the power of attorney holder of the petitioner and respondent 1 has entered into a compromise with the knowledge and consent of the petitioner with respondent 2. The compromise having been filed before the Court and the Court having forwarded the matter to the Lok- Adalat the compromise is one which is filed before the Court and as such the present petition is not maintainable since the trial Court having taken the compromise on record, only a suit challenging the compromise is maintainable.

The Court after perusing all the material facts observed that the plaintiff in a suit cannot array a defendant to be represented by power of attorney showing the address of the said power of attorney without even showing the address of the defendant. It was also observed that the net result of the entire proceedings and procedure followed is that the plaintiff who was not aware of the said proceedings, a compromise decree has been passed against the petitioner who though arrayed as a party to the preceding was never served with the notice nor did the defendant contest the said the proceedings. There is a procedural irregularity inasmuch as the compromise petition was filed before the Court and thereafter the matter referred to Lok-Adalat for recordal of the compromise.

The Court relied on Akkubai v. Venkatrao, 2014 SCC OnLine Kar 10110  and deprecated the said practice of recording compromise before the Court and thereafter referring to Lok-Adalat, as it is not contemplated in the Legal Services Authorities Act, 1987 and such compromise if recorded before the Lok Adalat is required to be set aside.

The Court also issued general directions in matters relating to compromise before the Lok Adalat which are challenged by way of writ petitions

(i) When a compromise is filed before the Court in terms of the decision in Akkubai v. Shri Venkatrao, 2014 SCC OnLine Kar 10110  it is for the Court to record the compromise and not refer the matter to the Lok- Adalat.

(ii) It is only if there is no settlement arrived at before the Court and the parties request for the matter to be referred to Lok-Adalat to enable a settlement then in such event the parties are to be referred to the Lok-Adalat and in the event of a compromise being arrived at before the Lok- Adalat, the same could be recorded by the lok- Adalat.

(iii) When the matter is referred to Lok-Adalat, separate order sheets would have to be opened and maintained by the said Lok-Adalat and the order sheet of the Court in the suit cannot be used by the Lok-Adalat.

(iv) The trial Court and or the Lok-Adalat while recording compromise is required to ascertain if the parties are present personally as also to ascertain and verify their identities by production of suitable documentary proof.

(v) In the event of a power of attorney appearing, it would be the bounden duty of the Court or the Lok-Adalat to ascertain if the concerned party has been served with notice.

(vi) The Court as also the Lok-Adalat would always have to be suspicious if the party were to enter appearance even before service of notice which is a red flag that there is something that is fishy in the matter.

(vii) When recording a compromise being entered into by a power of attorney, the original of the power of attorney is required to be examined by the Court and the Lok-Adalat and necessary endorsement made in the order to that effect and the original power of attorney returned to the parties.

(viii) As far as possible the trial Court and or the Lok- Adalat to secure the presence of the party and obtain signature of such party rather than the power of attorney.

(ix) The Trial Courts shall ensure that proper and acceptable proof of identity of the parties to proceedings as mandated by the Government for various purposes (such as Aadhar Card, Driving Licence, Passport Copy, Election Identity card, etc.,) are obtained as a matter of rule.

The Court allowed the petition and quashed the compromise decree dated 26-07-2014 in O.S. No.246/2014. [Renuka v. Ramanand, Writ Petition No. 103766 of 2018, decided on 31-03-2022]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Hemant Gupta* and V. Ramasubramanian, JJ., reversed concurrent findings of Trial Court and Punjab and Haryana High Court by setting aside mandatory injunction granted against the Municipal Committee. The Bench held that merely being the highest bidder in auction will not entitle one of any right over the property unless there is an official communication indicating the sale has attained finality.

The Municipal Committee, Barwala had impugned the mandatory injunction granted to the plaintiff-respondent by the Trial Court and upheld by the High Court to execute a sale deed in respect of land measuring 55 kanals 5 marlas sought by the plaintiff.

The respondent-plaintiff had claimed title and possession over the disputed property on the basis of an open auction conducted by the Sub-Divisional Officer in 1999 and consequently, had obtained mandatory injunction against the Municipal Committee over said property. The plaintiff claimed that being the highest bidder and having deposited the total sale consideration of Rs.15,76,150 with the Municipal Committee, he was a bonafide purchaser and was in possession as owner of the suit land.

However, the Municipal Committee disputed the possession of the plaintiff as illegal contending that the Committee could not execute the sale deed without proper sanction of the competent authority i.e., Government of Haryana. The committee argued that the auction was not approved by the State Government and till such time the auction is confirmed, mere fact that the plaintiff was the highest bidder would not confer any equitable and legal right to him. It is only after the confirmation of sale and the letter accepting the bid is issued, the plaintiff could claim any enforceable right.

The Committee further submitted that the approval of sale by public auction itself did not amount to confirmation of auction; therefore, in the absence of confirmation of sale by the State Government, the plaintiff would not get any right over the property.

Whether merely being the highest bidder would confer any equitable and legal right over the property?

The Bench observed that the Haryana Municipalities Management of Municipal Properties and State Properties Rules, 1976 contemplates two acts to be completed by the Deputy Commissioner for alienating immovable property owned by Municipal Committee, one of which is approval of conduct of sale which was granted on 25-10-1995. However, the other important requirement is that no sale by auction shall be valid until it has been confirmed by the Deputy Commissioner.

The Bench noted that the communication dated 10-1-2007 relied on by plaintiff to contend that the sale was approved by the Deputy Commissioner was not a communication by the Deputy Commissioner to the Municipality or to the plaintiff that the sale stood confirmed; rather it was an inter-departmental communication with no endorsement of the copy of the said communication to the plaintiff. Therefore, the Bench opined that no concluded contract ever came into force and in the absence of any approval granted, no right would accrue.

Relying on the decision in State of Punjab v. Mehar Din, 2022 SCC OnLine SC 250, the Bench observed that State or authority which can be held to be State within the meaning of Article 12 of the Constitution is not bound to accept the highest tender of bid. Similarly, reliance was also palced by the Bench on the decision of Constitution Bench in Bachhittar Singh v. State of Punjab, AIR 1963 SC 395, to hold that merely writing something on the file does not amount to an order.

Evidence Act, 1872 and Presumption of Correctness

Noticeably, in pursuance of the powers conferred on the State Government, a message was conveyed on behalf of the Director, Local Bodies, Haryana to all the Deputy Commissioners of the State of Haryana that no municipal property will be sold without the prior approval of the Government. However, the Trial Court had discarded such communication for the reason that the communication had not been proved as per the provisions of the Evidence Act, 1872.

Considering that the communication had been produced by the Municipal Committee when the Committee examined Mahavir Singh, Secretary as DW-1 and Sandeep Kumar, Building Inspector as DW-2, the Bench opined that such communication had come on record from the official source which would carry presumption of correctness under Section 114 of the Indian Evidence Act, 1872 that the official acts had been regularly performed. The Bench added,

“The original record was not necessarily required to be proved by summoning the Government officials as such document was produced by the officials of the Municipal Committee from the official record.”

Findings and Conclusion

After factually analyzing the instant case, the Bench reached to the following findings:

  1. The letter dated 10-01-2007, seeking approval of the State Government by the Deputy Commissioner was not the approval granted by him which could be enforced by the plaintiff in the Court of law.
  2. The suit was not maintainable as there was no vested right with the plaintiff to claim such a decree merely on the basis of a participation in the public auction.
  3. Even if the plaintiff had any right on the basis of an auction, he could at best sue for specific performance of the so-called agreement.
  4. Even the suit for specific performance was barred by limitation as such suit could be filed within three years from the date of auction in terms of Article 54 of the Schedule to the Limitation Act, 1963, however the plaintiff had reached the Court beyond the period of limitation.

In view of the above, the Bench concluded that the plaintiff had been granted decree for mandatory injunction not only beyond the period of limitation but in contravention of the statute and the rules framed thereunder. Consequently, the appeal was allowed, the impugned judgments were set aside and the plaintiff’s possession of the disputed property was found to be illegal.

The Municipality was granted liberty to take possession of land and the amount of Rs.15,76,150 deposited by the plaintiff was directed to be forfeited towards the damages for the illegal occupation of the land for more than 20 years since the date of auction in contravention of law.

[Municipal Committee, Hisar v. Jai Narayan & Co., 2022 SCC OnLine SC 376, decided on 29-03-2022]


*Judgment by: Justice Hemant Gupta


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): The Coram of Justice R.K. Agarwal (President) and Dr S.M. Kantikar (Member) expressed that, customer avails of Locker hiring facility is so that they may rest assured that their assets are being properly taken care of, but in the present matter, OP Bank failed to take care of the assets.

Instant appeals were filed against the order passed by the State Consumer Disputes Redressal Commission, Jharkhand whereby the complaints filed were partly allowed and the State Bank of India was directed to pay a lump sum compensation of Rs 30,00,000.

In the present matter, the complainants had Saving Bank Account and several High Value Fixed Deposit Accounts for nearly last four decades with the State Bank of India (OP Bank). They were also allotted Safe Deposit Locker by the OP Bank.

During the intervening night, a theft took place in the OP Bank as a result of which various items including jewellery and postal deposit instruments which were kept in the Safe Deposit Locker by the complainants were taken away by the miscreants/thieves.

The OP Bank did not intimate about the above-stated and on reaching the bank they got to know that their Safe Deposit Locker had been broken open and burgled. Further, the complainants met the Officer of the OP Bank, who confirmed the incident and asked them to furnish a list of their valuables.

Complainants alleged deficiency in service on the part of the OP Bank, the complainants filed a consumer complaint before the State Commission seeking compensation.

On being aggrieved with the impugned order passed by the State Commission, while the OP-Bank had filed appeals for setting aside the order by the State Commission, complainants preferred the cross-appeals for enhancement of the compensation awarded by the State Commission.

Analysis and Decision


Commission expressed that the purpose for which the customer avails Locker hiring facility is so that they may rest assured that their assets are being property taken care of, but in the present matter, OP Bank failed to take care of the assets/valuable articles of the Complainants which were lying in the Lockers provided by the OP Bank.

Further, the Coram added that although the stolen goods were seized by the Police and the complainants could identify only small quantity of their jewellery because most of the jewellery was in distorted shape due to rough handling by the burglars and a substantial quantity of jewellery was melted and transformed into gold biscuits, yet the OP Bank cannot be absolved from the deficiency in service on their part.

Therefore, no interference with the well-reasoned order was required. [SBI v. Gopal Prasad Mahanty, FA No. 382 of 2020, decided on 7-4-2022]


Advocates before the Commission:

For the State Bank of India: Mr. Jitendra Kumar, Advocate

For the Complainants: Mr. Gopal Prasad Mahanty, in-person

Mr. Shashi Bhushan Kr., in person

Case BriefsHigh Courts

Bombay High Court: Mangesh S. Patil, J., decided on the following questions for consideration:

  • Whether in a suit for partition and possession of the field all the sharers and co-partners are necessary parties?
  • Whether suit for partition and possession is bad for non-joinder of necessary parties and therefore ought to have been dismissed?
  • Whether in the circumstances of the case, the observation regarding non-joinder of necessary parties, made by the appellate court, are proper?

Factual Background

A suit for partition and separate possession of the suit property was filed by respondents against the predecessor of the appellants by the name Mr Gumansing, claiming that they had 1 / 2 share of the suit property.

It was stated that the respondents were the wife and children of Harising who contested the suit by his written statement and admitted that the suit property was the ancestral property.

Further, he had put up a plea of the previous partition about 70 years back, however, admitted that the suit property remained joint and he claimed to be the exclusive owner of the suit property and also claimed to be in possession.

Trial Court concluded that the suit property was the ancestral and joint family property but denied giving any share on the ground of non-joinder of all coparceners. Though the District Court quashed and set aside the judgment of the trial Court and decreed the suit partly.

Analysis and Decision

High Court noted that as per the provisions of the Hindu Succession Act, the suit property was simultaneously inherited by Shivam and Totaram who were real brothers and each one of them would be entitled to half share.

In a suit for partition, the heads of all the branches are the necessary parties.

Further, even if all the sons of Shivaram and Totaram were not covered by Order XLI Rule 33 of the Code of Civil Procedure, having found that there was due representation of both the branches and there could not have been any dispute as to equal share of each of these two branches, the interest of justice was met by decreeing the suit partly and by directing the suit property to be divided into two halves only.

Bench found that the District Court had not directed a further division amongst the coparceners inter se from each of the branches.

Hence, High Court answered the substantial questions in favour of the respondents and the Second Appeal, therefore must fail.

There was absolutely no evidence to show that the respondents were completely excluded from receiving any yield from the suit property and the entire usufructs were being enjoyed by the appellant to their exclusion.

In view of the above, civil application was disposed of. [Late Gumansing Shivram Patil v. Abhiman Gumansing Patil, 2022 SCC OnLine Bom 866, decided on 22-4-2022]


Advocates before the Court:

Advocate for Appellants: Mr. S.B. Yawalkar h/f. Mr. B.R. Yawalkar

Advocate for Respondents1 to 5: Mr. S.V. Dixit

Case BriefsHigh Courts

 Chhattisgarh High Court: Narendra Kumar Vyas, J. allowed an appeal filed by the defendants setting aside the judgment and decree by the Trial Court whereby trial Court had decreed the suit filed by plaintiff/respondent 1, dismissed the counter claim filed by appellants/defendants 1 to 3.

The appellants/defendants are all residents of Bilaspur. The suit land already described by this Court was the self acquired property of mother of defendants and plaintiff. Her name was recorded as title holder of the suit land. It was pleaded that plaintiff has taken care of his mother till his lifetime, all the last rituals have been performed by him and due to care taken by him she bequeathed a Will in favour of the plaintiff on 28-10-2010 and since then plaintiff was in possession of the suit land. After her death the plaintiff moved an application for mutation of the suit land in his name being successor per Will dated 28-10-2010 executed by her. The name of plaintiff has been mutated in the revenue record as the land owner on 10-09-2013. The defendants 1 to 3 had preferred an appeal wherein they had raised an objection that the plaintiff was not only successor of her and they were also the successor, as such their names should also have  been recorded in the revenue record.

The illegal interference of the appellants/defendants in the title and ownership of the suit land which is owned by the plaintiff necessitated the plaintiff to file present suit for declaration and for grant of permanent injunction.

Defendants filed their written statement denying the averments made in the plaint contending that the Will dated 28-10-2010 was forged one, as such, on the basis of forged document, order of mutation was illegal and against the provisions of law, therefore, order dated 10-09-2013 was not binding upon them.

From the factual matrix the Court identified two main issues:

(i) Whether the will has been proved as per the provisions of section 68 of the Evidence Act and Section 63 (c) of the Indian Succession Act?

(ii) Whether the defendants are entitled to get equal share of the suit land being coparcener as per Hindu Succession (Amendment) Act, 2005?

From analysis of the evidence and considering the evidence they have nowhere stated that will has been written as per the direction of the testatrix and also considering the fact that the witnesses have nowhere stated in their evidence that the testatrix has put her signature on the will in their presence. therefore, doubtful circumstances establish with regard to existence of will. Also, application which was filed before Revenue Court for mutation wherein the defendants have not made party despite aware of the facts that sisters are still surviving, it certainly creates doubt over genuineness of the will.

For deciding issue 1 the  Court considered the judgment of the Supreme Court in Murthy v. C. Saradambal, (2022) 3 SCC 209 and stated that it is crystal clear, that the validity of Will was not proved in accordance with the provisions of the law and suspicious circumstances are available on record which have not been cleared by the plaintiff by placing material on record, therefore, judgment and decree so far as holding that the plaintiff was the owner of the suit was set aside.

For Issue 2 the Court extracted provisions of section 6 of Hindu Succession Act, 1956 as amended in 2005 and explained that since the plaintiff and defendants are coparcener of the joint Hindu family property, as per Hindu Succession Act as amended in 2005, the daughters were also entitled for getting equal share in the property inherited by their parents. The suit land was inherited by deceased mother, as such defendants and plaintiff were entitled to get equal share in the property as per Section 6 of the Hindu Succession Act as amended in 2005. The Court relied on the judgment of the Supreme Court in Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1 and decided that plaintiff and defendants were entitled to get ¼ shares in the suit property.

Counsel for the appellants/defendants had also filed application under Order 41 Rule 27 Read with Section 151 of the CPC for taking additional document on record by stating that during pendency of the appeal, the appellants/ defendants have filed an application under Order 1 Rule 10(2) CPC by which the respondent No.1 has sold total 10 decimal of the land in favour of respondent/plaintiff 3 , therefore, he was arrayed as party to the case. While allowing this application the Court held that sale of land shall also be subject to the decision of this appeal and the land already sold to respondent 3, if it is part of suit land then .040 hectare land will be adjusted/ reduced from the share of plaintiff.

Counter claim and appeal filed by the defendants was allowed and it was held that defendant 1-3 were entitled to get equal share in the property as per Hindu Succession Act, as amended in 2005.[Sonia Bai v. Dashrath Sahu, 2022 SCC OnLine Chh 468, decided on 28-02-2022]


For the Applicants : Mr Aman Sharma

For the Respondent 1 : Mr Dhirendra Mishra

For the State : Mr Sameer Sharma, Dy. GA

For the Respondent 4. : Mr Dashrath Prajapati


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Madras High Court: N. Anand Venkatesh, J., addressed a matter with regard to coparcenary rights of sons and daughters.

Plaintiff had sought for relief of partition and for allotment of 1/5th share in the suit property and also sought for declaration of the sale deed executed by the 1st defendant in favour of the 5th defendant as null and void.

Plaintiff’s case was that the suit property formed part of a larger extent of property which was ancestral in nature. It was claimed that 1st defendant father and defendants 2 to 4 who were the sisters of the plaintiff were each entitled 1/5th share in the suit property.

The grievance of the plaintiff was that the 1st defendant went ahead and sold an extent of 36 cents in favour of the 5th defendant through a sale deed and according to the plaintiff, this sale deed was null and void and not binding on the other sharers. Further, the 1stdefendnat was not coming forward to allot the shares to the other legal heirs and hence, the suit came to be filed seeking for the reliefs.

1st defendant submitted that he was the absolute owner of the property during his life time and plaintiff cannot claim any share in the property.

Analysis, Law and Decision

High Court noted that the source of the property was admitted to be ancestral.

Main Issue

Nature of inheritance made by the three sons of Thalaivirichan Reddy.

The Bench expressed that, even after the Joint Family properties are partitioned and allotted to each sharer, the same can be held to be the individual property of the sharer only till a son and/or daughter are born. Once a son and/or daughter is born, they will get a right and share over the property by birth. As rightly held in the above judgment, the 1956 Act has not put to an end the co-coparcenary rights and infact, it continues to be reiterated after the coming into force of the 2005 amendment Act.

Further, the Court expressed that,

Even if there was a family arrangement between the three sons of Kathavaraya Reddy and by virtue of the same, the 1st defendant had allotted 1.07 acres, the moment the plaintiff and defendants 2 to 4 were born, they will also be entitled for a share in the property.

In High Court’s opinion, lower Courts had lost the sight of law governing the property and had erroneously concluded that the property in the hands of 1st defendant was his exclusive property and that daughters will not be entitled to claim a share in the property.

It is nobody’s case that the 1st defendant had sold the property and had utilized the money for illegal purposes. Therefore, the assumption should be that it was utilized by the 1st defendant for the family.

“…this Court must also safeguard the rights of the plaintiff and defendants 2 to 4 to the extent possible and ensure that they get a reasonable share in the suit property. This is the only way to balance the rights of the daughters and the father in the suit property.”

Court added that,

The manner in which the property is going to be distributed by balancing the equities can be decided by the Trial Court at the time of passing the final decree.

Hence, the second appeal was partly allowed granting 1/4th share to the plaintiff and defendants 2 to 4 in the property that remained after the extent that had already been sold in favor of 5th respondent. [S. Sampoomam v. C.K. Shanmugam, 2022 SCC OnLine Mad 1594, decided on 5-4-2022]


Advocates before the Court:

For Appellant: Mr.A.Gouthaman

For Respondents: Mr.R.Rajarajan for R1 to R5

Case BriefsHigh Courts

Bombay High Court: The Division Bench of V.M. Deshpande and Amit Borkar, JJ., expressed that a transaction by a natural guardian of a minor with respect to his immovable properties is valid till a Court strikes it down.

It was stated that one Arvindkumar Narayandas Khandelwal had gifted property by registered gift-deed in favour of the complainant. On the date of execution of the said deed, the complainant was three years old and therefore, the gift deed was executed in favour of the complainant through a natural guardian – accused 1.

The Complainant was the absolute owner and in possession of the land given to him by the above-said gift deed. In February 2020 the complainant came to know that the accused 1 had sold out a plot to accused 4 to 6.

It was alleged that after getting knowledge of the said transaction, on enquiry by the complainant, it was revealed that the accused 1 permitted Narayandas Hiralal to seek permission for conversion of gifted property and started using the said property for his personal use without obtaining permission from the Court.

Further, accused 1 transferred the minor’s property to the society established by him without obtaining permission from the competent Court.

It was alleged that accused 1 showed that the complainant had purchased the property from the housing society with the intention to cheat the complainant. Hence, accused 1 committed a criminal breach of the complainant’s trust.

Issues for Consideration:

Whether the natural guardian having executed the sale-deed of property of a minor in favour of a third party and thereafter repurchased part of it, can be prosecuted for offences under Sections 420, 467, 468, 471 of the Penal Code, 1860 that too, after more than 35 years from the date of attaining majority by the minor and after more than 48 years from the date of execution of sale-deed?

Analysis, Law and Decision

High Court referred to the decision of the Supreme Court in Dhurandhar Prasad Singh v. Jai Prakash University, (2001) 6 SCC 534, wherein the distinction between void and voidable was explained.

Well Settled Principle of Law

Transfer of immovable property by the natural guardian of a Hindu minor far from being void or being a nullity is, in fact, one which fully binds the other party unless set aside by a competent Court. The minor can always enjoy the benefit thereof and enforce the contract after ratifying or accepting the same. Such a transaction is perfectly valid until duly avoided by the minor before a competent Court.

Bench expressed that, the transfer is by the minor as the principal through the agency of his guardian.

Coming to the facts of the present matter, an FIR was registered against the applicants who include the father, mother, sister and purchasers.

To attract Section 420 IPC, there should be deception or fraudulent inducement of a person to deliver property. As a consequence of such cheating, the accused should have dishonestly induced the person who is deceived to deliver such property to any person or to have made, altered or destroyed the whole or any part of a valuable security or anything which is signed or sealed and being capable of converted into a valuable security.

Further, to hold a person guilty of cheating under Section 415 IPC, it is necessary to show that he had the fraudulent or dishonest intention at the time of making the promise with an intention to retain the property and the inducement must be intentional.

As per the facts of the case, it was not the case of non-applicant 2 (complainant) that the applicants by fraudulent and dishonest inducement, deceived him either by making a false or misleading representation to deliver any property or to give consent to retention thereof or intentionally induced him to do or omit to do anything, which he would not do or omits, if he were not so deceived.

As the position of law on the alienation of the property of minor stands, the sale deed in favour of housing society was de jure executed by the minor (non-applicant 2) through natural guardian applicant 1.

High Court opined that it could not be transpired that by execution of sale deed and thereafter, repurchasing part in the form of individual plots by applicants 1 to 3 it cannot be said that the applicants 1 to 3 had altered or tampered with the documents nor it can be said that applicants had obtained documents by practicing deception.

No false documents were executed; hence no question of forgery arose under Section 468 IPC.

Further, the High Court referred to the decision of the Supreme Court in Mohammed Ibrahim v. State of Bihar, (2009) 8 SCC 75.

In Murugan v. Kesava Gounder (Dead), (2019) 20 SCC 633 summarised law as regards alienation of the immovable property by natural guardian holding that, disposal of immovable property of minor by his natural guardian (father) by registered sale-deeds in contradistinction of Section 8(2) are voidable under Section 8(3).

Bench found that the FIR was filed against applicants 1, 2 and 3 in order to cause pressure on them and to cause harassment.

“Criminal proceedings cannot be allowed to be used for settling, coercing or causing harassment to the accused persons.” 

While concluding the matter, Court quashed and set aside the FIR registered with non-applicant 1 for the offences punishable under Sections 420, 467, 468, 471 and Section 34 of the Penal Code, 1860. [Vasantkumar v. State of Maharashtra, 2022 SCC OnLine Bom 712, decided on 28-3-2022]


Advocates before the Court:

In Cr.APL No.91/2021.

Shri S. V. Manohar, Senior Advocate assisted by Shri M.G. Sarda, Advocate for Applicants.

Shri S. M. Ghodeswar, A.P.P. for Non-applicant/State.

Shri Avinash Gupta, Senior Advocate Assisted by Shri Aakash Gupta, Advocate for Non applicant No.2.

In Cr.APL No.312/2021.

Shri H. M. Mohata and Shri S. P. Bhave, Advocates for applicants Shri S. M. Ghodeswar, A.P.P. for Non-applicant/State.

Shri S. P. Bhandarkar, Advocate for Non-applicant No.2.

Case BriefsHigh Courts

Bombay High Court: Mangesh S. Patil, J., expressed that, by virtue of Section 19 of the Hindu Succession Act, it has been explicitly made clear that if two and more heirs succeed together to the property and in the estate, they take the property as tenants in common and not as joint tenants.

The suit properties which included 4 agricultural lands and two-house properties, were the properties of Dajiba.

The four daughters of Dajiba had filed the suit against their stepmother for partition and separate possession of their share in the suit properties. The stepmother having agreed to sell one of the suit properties being Survey No. 42/B to respondent 2, was arrayed as defendant 2.

Trial Court decreed the suit awarding a joint 4/5th share to the daughters in all the suit properties.

The above-said judgment was challenged by the step mother and the purchaser and further, the appeal was partly allowed. Except for Survey No. 42/B, the share allotted to the daughters in all the suit properties was confirmed.

Further, the stepmother had agreed to sell it to the purchaser to meet the legal necessity of the family.

Aggrieved with the District Court’s decision, one of the daughters who was plaintiff 4 preferred the second appeal arraying her stepmother and the purchaser as also the remaining three sisters as respondents.

Analysis, Law and Decision

High Court noted that there was no dispute with regard to the suit properties and after the demise of Dajiba, his widow i.e., defendant 1 and daughters, who were the plaintiffs simultaneously succeeded to his estate in view of Section 8 of the Hindu Succession Act.

With regard to Section 19 of the Hindu Succession Act, all the above-stated heirs of Dajiba would inherit as tenants in common and not as joint tenants.

The very theory of existence of a karta and legal necessity presupposes that the sharers are joint, which is not the case in the matter in hand.

Bench stated that by virtue of the above-stated mode of succession by the widow and four daughters of Dajiba receiving the suit properties as heirs, they take their individual shares as tenants in common.

Since the suit properties were not joint, there was no question of the stepmother acting as a manager or karta of the family. Therefore, she had no right to deal with the suit properties even for legal necessity.

High Court relied upon the decision of Supreme Court in Commissioner of Income-Tax, Madhya Pradesh, Nagpur and Bhandara Nagpur v. Seth Govindram Sugar Mills, AIR 1966 SC 24.

Bench added that it has been held that,

under Hindu Law coparcenership is a necessary qualification for becoming a manager of joint Hindu family and since a widow cannot be a coparcener she is not legally entitled to become a manager. Conspicuously, this was a position even prior to the coming into force of the Hindu Succession Act. By virtue of Section 19 it has been explicitly made clear that if two and more heirs succeed together to the property and in estate, they take the property as tenants in common and not as a joint tenants.

With regard to the present matter, the Bench held that, once it was established that the step mother was not entitled to act as a manager or karta of the family, there was no question of her having any power to deal with suit properties to the detriment of the stepdaughters.

Hence, the second appeal was allowed. [Kamalabai v. Darubai, 2022 SCC OnLine Bom 686, decide don 31-3-2022]


Advocates before the Court:

Mr. D.R. Shelke, Advocate for the appellant

Mr. P.G. Godhamgaonkar h/f. Mr. M.D. Godhamgaonkar, Advocate for respondent nos.1 and 2

Mrs. S.D. Shelke, Advocate for respondent nos.3a, 4 and 5

Case BriefsSupreme Court

Supreme Court: In a case where the Development Plan was finalized in the year 2002, but the same was never implemented nor any action was taken for acquisition of the land under the Land Acquisition Act, 1894, the bench of Hemant Gupta* and V Ramasubramanian, JJ has held that the Bombay High Court’s direction to acquire land within a period of one year is in contravention of the time line fixed under the Maharashtra Regional and Town Planning Act, 1966.

In the present case, in 2016 i.e. after the expiry of the ten years’ time line, the appellants issued notice under Section 127 of the Act so as to purchase the reserved land within one year of the date of the notice. The Bombay High Court held that the reservation of land in the Development Plan stands lapsed as no declaration under Section 126 of the Maharashtra Regional and Town Planning Act, 1966 was published. However, the Planning Authority was given one year time to acquire the land once reserved.

The Supreme Court, however, disagreed with the High Court’s view and held that once the Act does not contemplate any further period for acquisition, the Court cannot grant additional period for acquisition of land. The land was reserved for a public purpose way back in 2002. By such reservation, the land owner could not use the land for any other purpose for ten years. After the expiry of ten years, the land owner had served a notice calling upon the respondents to acquire the land but still the land was not acquired.

“The land owner cannot be deprived of the use of the land for years together. Once an embargo has been put on a land owner not to use the land in a particular manner, the said restriction cannot be kept open-ended for indefinite period.”

The Court observed that the Statute has provided a period of ten years to acquire the land under Section 126 of the Act. Additional one year is granted to the land owner to serve a notice for acquisition prior to the amendment by Maharashtra in 2015. Such time line is sacrosanct and has to be adhered to by the State or by the Authorities under the State. Hence,

“The State or its functionaries cannot be directed to acquire the land as the acquisition is on its satisfaction that the land is required for a public purpose. If the State was inactive for long number of years, the Courts would not issue direction for acquisition of land, which is exercise of power of the State to invoke its rights of eminent domain.”

Consequently, the direction to acquire the land within one year was set aside by the Court.

[Laxmikant v. State of Maharashtra, 2022 SCC OnLine SC 349, decided on 23.03.2022]


*Judgment by: Justice Hemant Gupta

Case BriefsHigh Courts

Jharkhand High Court: Expressing that the due execution of a Will is to be proved as per the provisions of law as laid down in Evidence Act as well as that if Indian Succession Act,  Gautam Kumar Choudhary, J., remarked that, a probate court being a Court of conscience, the intention of the testator is paramount and it is the bounden duty of the Court to ascertain the real WILL of the testator if any.

Appellants preferred the present appeal against the order granting probate of Will executed by the testator in favour of his daughter (applicant) with respect to a land.

Applicant’s case was that the suit land was the self-acquired property of the testator who executed the Will.

It was asserted that the Will was executed out of free will and in perfect health.

Though the objector’s (son) case was that the testator never executed any Will and the said Will was forged and fabricated.

Analysis, Law and Decision

High Court expressed that a probate court is not competent to determine the title of schedule property.

Additionally, the Court observed that,

The jurisdiction of a probate court is limited to determination that the will executed by the testator was his last will. Whether he had right to execute the will with respect to the schedule property is beyond the scope of the court considering a probate application.

In the Supreme Court decision of Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon, (2007) 11 SCC 357, it was held that,

“the court of probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court. Therefore, the only issue in a probate proceeding relates to the genuineness and due execution of the will and the court itself is under duty to determine it and preserve the original will in its custody. The Succession Act is a self-contained code insofar as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the Probate Court”. 

Further, the Bench added that,

Testamentary disposition of property is deviation from natural line of inheritance in lesser or greater degree. It may result in complete disposition in favour of one of the heirs of the testator or it may even be in complete exclusion of any of the heir.

In view of the facts and circumstances of the case, Court affirmed the lower Court’s order. [Neelam Singh v. Sudha Sinha, Misc. Appeal No. 123 of 2012, decided on 10-3-2022]


Advocates before the Court:

For the Appellants: Mr. Anil Kumar Sinha, Advocates

For the Respondents: M/s A.K. Das & Swati Shalini, Advocates

Case BriefsHigh Courts

Bombay High Court: The Division Bench of G.S. Patel and Madhav J. Jamdar, JJ., held that Asif i.e. son has no rights in his father’s flats.

As per the petition, Fazal Khan was living in a vegetative state for the last decade and he not only had dementia but has had multiple strokes also. The crux of the petition was the appointment of Fazal’s wife, Sonia as the 1st petitioner, as the guardian of Fazal’s personal and property.

It was noted from the medical report of Fazal that he was totally dependent on his caregivers.

In the present case, the Court was concerned with a Bank Account wherein Fazal was the first holder and Sonia, i.e. his wife the joint holder. The second asset was a property which was a residential flat.

An intervention application as pointed by the Court, which was filed by Asif Fazal Khan, the “de facto” guardian of Fazal for many years and there was absolutely nothing in the said application to show that.

Further, Asif submitted that although his parents were alive, there are two flats and both are what he describes as “a shared household” therefore he, the son, had some sort of enforceable legal right or entitlement to either or both of these flats.

High Court expressed that,

“In any conceptualization of succession law for any community or faith, Asif can have no right, title or interest whatsoever in either of these flats — one in his father’s name and other in his mother’s name — so long as his parents are alive. The suggestion that Asif has a settled and enforceable share in either of the flats in the lifetimes of the real owners, his parents, is laughable.”

Therefore, the intervention application filed by the son was rejected.

High Court permitted the wife of Fazal Khan to operate the Bank account and added that she may draw amounts in the said account to meet all and any of Fazal’s expenses, though she can’t use that money for her personal expenses nor she can transfer the said amount to her personal account and once a year, the wife is required to file a statement of account.

The wife proposed to sell the flats so that the proceeds could be used to look after Fazal, hence the Court permitted the same and directed that without prior leave to this Court she can execute an MoU or an agreement for sale.

In view of the above -said the petition is kept pending. [Sonia Fazal Khan v. Union of India, 2022 SCC OnLine Bom 627, decided on 16-3-2022]


Advocates before the Court:

Mr Nikhil Wadikar, i/b Ganesh Dhonde, for the Petitioner.
Mr Maneesh Trivedi, i/b LR & Associates, for Intervenor/Applicant

in IA/2411/2021.
Mr Adavit Sethna, i/b Anusha P Amin & Tanay M Mandot, for

Respondent 1-UOI.
Mrs Uma Palsuledesai, AGP, for State.

Case BriefsSupreme Court

Supreme Court: The Division Bench of Hemant Gupta* and V. Ramasubramanian, JJ., held that a person who misleads the Authority in obtaining allotment of a plot is not entitled to any relief.

While adjudicating a case where the plaintiff had filed a false affidavit to obtain a plot, the Bench rejected the benefit of equity to the plaintiff holding that,

“…affidavits filed were not mere sheet of paper but a solemn statement made before a person authorized to administer oath or to accept affirmation. The plaintiff had breached such solemn statement made on oath.”

Factual Matrix

The plaintiff-respondent was allotted a residential plot in Sector- 30, Noida as a member of the Defence Services Cooperative Housing Society; however, prior to the allotment of the said plot, another plot in Sector- 15A, Noida was already allotted to wife of the plaintiff. Consequently, the plaintiff was served with a notice that the Sector 30 plot had been obtained by him by submitting a false affidavit as Sector 15A plot was already allotted to his wife.

The grievance of the plaintiff was that since the Sector 15A plot had been sold after obtaining permission from the appellant, therefore, the Sector 30 plot was the only plot in his possession. With the said claim, the plaintiff filed a suit for declaration, restraining the defendant from re-allocating the Sector 30 plot and from dispossessing the plaintiff from the same. After considering the reply, and the factum that the plaintiff intentionally concealed information of allotment and filed a false affidavit for the Sector 30 plot, the authority concerned cancelled the allotment of Sector 30 plot.

Concurrent Findings of the Courts Below

The Trial Court held that the lease executed in favour of the plaintiff could not be determined merely by passing the subject order in terms of Section 111 (g) of the Transfer of Property Act, 1887 as no notice for determination of lease under the said section had been issued. Therefore, all rights in the lease would survive. The findings of the Trial Court were concurrently upheld by the first Appellate Court and the High Court. The High Court further held that plaintiff and his wife had no ulterior motive to perpetrate fraud on the appellants as there was no willful or dishonest intention on the part of the plaintiff and his wife.

Submissions of the Plaintiff

The plaintiff submitted that the plot at Sector 15A was applied for because there was an uncertainty on account of litigation between the society of which he was a member with the appellant authority. It was pleaded that since the plaintiff was interested in Sector 30 plot as member of the Society, therefore the wife of the plaintiff had transferred the Sector 15A plot after obtaining permission from the appellant.

Findings and Conclusion

Contrary to the concurrent findings of the Courts below, the Bench observed the following faults on the part of the plaintiff:

  • Though the wife of the plaintiff was allotted Sector 15A plot on 10-03-1981, she had sworn an affidavit on 04-03-1983 that neither she nor her spouse owned any other plot in Noida.
  • The relevant extract from such terms and conditions of the allotment clearly show that a person himself owning, or in case of his spouse or dependent children owning a plot within the Municipal Corporation of Delhi or New Delhi or Noida complex, will not be eligible for allotment of a plot in Noida.
  • The affidavit of the wife of the plaintiff was false as the plot measuring 450 sq. yards stood allotted to the plaintiff on 06-10-1981. Therefore, on the date the wife of the plaintiff had sworn the affidavit, the Sector 30 plot was already allotted to the plaintiff.
  • The argument that plot might have been allotted but the possession was not with the wife of the plaintiff was incorrect as the affidavit was to the effect that she had not been allotted any plot either in her name or in the name of her husband.
  • The plaintiff had sworn an affidavit, enclosed on letter dated 01-12-1988 that he, his spouse and dependent children do not own in full or in part on leasehold or freehold basis any residential plot.

Rejecting the argument of the plaintiff that as per the decision in ITC Ltd. v. State of U.P., (2011) 7 SCC 493, and Section 14 of U.P. Industrial Development Act, 1976, the Chief Executive Officer alone could cancel the lease, the Bench held that the determination of lease by the Chief Executive Officer would arise if in case there was any violation of the terms of lease. The Bench stated,

“If the condition precedent for grant of lease itself was fraudulent, the cancellation of lease was not required to be preceeded by permission of the Chief Executive Officer.”

Further, the Bench noted that the Chief Executive Officer had granted permission on 13-09-1998, though the cancellation order was passed on 18-10-1996. Therefore, the Bench held that it was a case of irregularity at best which stood removed with the permission of the Chief Executive Officer. Emphasising on the terms and conditions of allotment conveyed to the plaintiff on 01-12-1988 that if allotment is obtained by any misrepresentation or misstatement or fraud, the lease may be cancelled and the possession of the plot and the building thereon may be taken by the Authority, the Bench held that cancellation of allotment of plot obtained after filing false affidavit was a legitimate ground of cancellation of lease.

In the light of above, the Bench concluded that since the second plot allotted to the plaintiff had been allotted against the express terms of allotment, therefore, there was neither equity nor any law in favor of the plaintiff. Consequently, the appeal was allowed and the judgment and decree of the courts below were set aside.

[New Okhla Industrial Development Authority v. Ravindra Kumar Singhvi, 2022 SCC OnLine SC 186, decided on 15-02-2022]


*Judgment by: Justice Hemant Gupta


Appearance by:

For the Plaintiff: Senior Advocate P.S. Patwalia

For the Appellant:   Advocate Binay Kumar Das


Kamini Sharma, Editorial Assistant has put this report together 


Experts CornerSanjay Vashishtha

The recent invocation of Magnitsky law in the United States made headlines across India. A United States law firm, primarily known for their human rights activism and practice in the realm of international criminal law filed a formal submission to the Government of United States of America seeking targeted sanctions against Uttar Pradesh Chief Minister, for his alleged role in extra-judicial killings allegedly committed by the State’s police forces between 2017 and 2021. The submission, filed on 9-2-2022, with the Department of State and the US Department of the Treasury, also recommends sanctions against Om Prakash Singh, the recently retired Director General of the Police of U.P., and Sanjeev Tyagi, Superintendent of the Police of the district of Kanpur.[1]

 

In December 2021, the US Government also sanctioned Bangladesh’s elite police unit[2], the Rapid Action Battalion, along with seven former and current police and army officials which included the current head of the country’s police force, for their role in extra-judicial killings.[3]

 

What is Magnitsky law?

Sergei Magnitsky Act was passed in 2012 in US named after a Russian Accountant, Sergei Magnitsky who in 2009, was tortured, denied medical attention and was found dead in Moscow jail cell.[4] He was targeted by the Russian authorities for exposing a giant tax fraud scheme.[5] The law passed by the US imposed sanctions against such Russian officials who are believed to be responsible for human rights violations.[6]

 

Russia has published its own blacklist of Americans banned from entering the country in retaliation for Washington’s “Magnitsky list.”[7] The Russian Government further banned American adoption of Russian children.[8]

 

Four years after the adoption of the original Act, Congress enacted a new “Global Magnitsky Human Rights Accountability Act” (2016). This built upon and expanded the original 2012 Act (which was focussed solely on those alleged to have been involved in the death of Sergei Magnitsky) by authorising the US President to impose sanctions on any individual or entity responsible for committing human rights violations, or acts of significant corruption, anywhere in the world.

 

On 20-12-2017, the US President issued Executive Order 13818, “Blocking the Property of Persons Involved in Serious Human Rights Abuse and Corruption.”[9] The order declares a “national emergency” with respect to “serious human rights” abuses and a broad range of corrupt acts that threaten “the stability of international political and economic systems” and “constitute an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States”.[10]

 

EO 13818 in substantial part implements the Global Magnitsky Human Rights Accountability Act [Global Magnitsky Act (GMA)] a 2016 law that authorises the President to freeze certain property and restrict the entry into the United States of “foreign persons” that the President determines, “based on credible evidence”, are responsible for certain corrupt acts and human rights abuses committed wholly or substantially outside of the United States (the “Global Magnitsky Sanctions”).[11]

 

As the above description indicates, the Sergei Magnitsky Act, 2012 targets persons and places tied to specific events that occurred in one country.[12] Moreover, the Sergei Magnitsky Act can be read to have been adopted or operate as an alternative or last recourse for justice and accountability, following Congress findings that there was a denial of “any justice or legal remedies” to Mr Magnitsky by “all State bodies of the Russian Federation” and “impunity since his death of State officials”.[13]

 

Scope of the Act

 

The Global Magnitsky Human Rights Accountability Act, 2016 authorises the President to impose economic sanctions and block or revoke visas to restrict the entry of certain “foreign persons” identified as engaging in human rights abuse (such as extra-judicial killings, torture, or other gross violations of internationally recognised human rights).[14] The Act also authorises sanction against government officials or senior associates of government officials who are complicit in “acts of significant corruption”. Such sanctions can also take the form of freezing of assets for funds held in US banks.[15]

 

In order to ensure global accountability and protection of human rights, the Act enables the US executive branch to apply targeted sanctions on any individual involved in human rights violation, from senior officials to low-level officers and non-government associates.

 

When a person is sanctioned, any property owned by them in the United States or in the possession or control of US persons is “blocked and must be reported to” the Treasury’s Office of Foreign Assets Control (OFAC). It also prevents any person or entity in the United States from undertaking any financial transactions with these men. Sanctions could also involve a ban on travel to the US.

 

The Act authorises the President to terminate the application of sanctions if the President determines that the designee did not engage in the activity for which sanctions were imposed; has been prosecuted for the offence; or has changed his or her behaviour, “paid an appropriate consequence”, and is committed to not engaging in future sanctionable activity. The President may also terminate the imposition of sanctions if he finds it in the US national security interests to do so.[16]

 

In contrast to the Magnitsky Law of 2012, the Global Magnitsky Act contains no analogous congressional findings, nor does it expressly state or imply that it is a last or alternative resort where adequate legal processes to adjudicate corruption or human rights abuses are unavailable in foreign countries where relevant events took place or parties are located, or before foreign tribunals to which relevant States have submitted to jurisdiction. Instead, the Global Magnitsky Act’s default position is the applicability of US sanctions (supported by “credible evidence”) without the requirement of a jurisdictional nexus with the United States.[17] Accordingly, the Global Magnitsky Act asserts US universal jurisdiction over the corrupt acts and human rights abuses it targets.

 

Executive Order 13818

 

The year after its enactment, pursuant to the 2016 GMA, President Donald Trump issued Executive Order 13818, which declared that “the prevalence and severity of human rights abuse and corruption that have their source, in whole or in substantial part, outside the United States […] threaten the stability of international political and economic systems”. The order continued:

“Human rights abuse and corruption undermine the values that form an essential foundation of stable, secure, and functioning societies; have devastating impacts on individuals; weaken democratic institutions; degrade the rule of law; perpetuate violent conflicts; facilitate the activities of dangerous persons; and undermine economic markets. The United States seeks to impose tangible and significant consequences on those who commit serious human rights abuse or engage in corruption, as well as to protect the financial system of the United States from abuse by these same persons.

I therefore determine that serious human rights abuse and corruption around the world constitute an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States, and I hereby declare a national emergency to deal with that threat.”

 

President Trump therefore authorised the Treasury Secretary to impose sanctions against, inter alia, any foreign person determined by the Secretary of the Treasury, in consultation with the Secretary of State and the Attorney General:

  • To be responsible for or complicit in, or to have directly or indirectly engaged in, serious human rights abuse.
  • To be a current or former government official, or a person acting for or on behalf of such an official, who is responsible for or complicit in, or has directly or indirectly engaged in:
    • corruption, including the misappropriation of State assets, the expropriation of private assets for personal gain, corruption related to government contracts or the extraction of natural resources, or bribery; or
    • the transfer or the facilitation of the transfer of the proceeds of corruption.

 

Pursuant to Executive Order 13818, the President imposed sanctions on 13 serious human rights abusers and corrupt actors (named in annex to the order), while the Treasury Department’s Office of Foreign Assets Control (OFAC), acting on behalf of the Secretary of the Treasury, in consultation with the Secretary of State and the Attorney General, imposed sanctions on an additional 39 affiliated individuals and entities.[18]

 

Another important novelty with the GMA and Executive Order 13818 is the inclusion of civil society organisations in the naming process. The law requires the President’s administration to consider any information submitted by non-governmental organisations (NGOs). As Elisabeth Witchel has noted: “The point of engagement for NGOs is in providing recommendations for sanction targets, along with documented case material. The law states that credible information from human rights and corruption monitoring groups will be considered, and, according to one State Department official, they welcome and encourage collaboration by non-governmental organisations.”

 

Sanctions for covered human rights abuses and corrupt acts, civil and criminal penalties for sanctions violations

For human rights abuses and corrupt acts, the Global Magnitsky Act and EO 13818 authorise financial and immigration sanctions. The Global Magnitsky Sanctions largely target foreign government officials and private parties (natural and legal). However, some US persons are “foreign persons” under the Global Magnitsky Act and have sanctions exposure in connection with certain corrupt acts and human rights abuses. Moreover, all US persons, like their foreign counterparts, are sanctionable for providing material and other support to certain conduct and persons. US and foreign persons also face civil and criminal penalties for violating or evading sanctions.

 

Financial sanctions: Blocking of property and prohibition of transactions with or for the benefit of blocked persons

Financial sanctions entail the “blocking” or freezing of the property or “interests in property” of sanctioned persons that is in or comes within the United States or the possession or control of a US person, including US banks and their foreign branches, US branches of foreign bank and US businesses and individuals. The property of a “blocked” person (a “specially designated national” or “SDN”) must be frozen and may not, without approval, be transferred or otherwise transacted in. The “interests in property” of a blocked person is property owned 50% or more, directly or indirectly, by one or more blocked persons individually or in the aggregate.[19] Entities that are owned 50% or more by one or more blocked persons are also blocked, pursuant to the Treasury Department Office of Foreign Assets Control’s “50% rule”.

In addition, EO 13818 prohibits transactions with or for the benefit of sanctioned parties, specifically (1) “the making of any contribution or provision of funds, goods, or services by, or to, or for the benefit of any … (blocked person)”; and (2) “the receipt of any contribution or provision of funds, goods, or services from any such person”.[20]

 

US financial sanctions are uniquely powerful

The financial penalties imposed by the Global Magnitsky Sanctions (and other US sanctions programs) are powerful, as they effectively cut off sanctioned persons from the US financial system and, substantially, US dollar transactions. Given the size and centrality of the US financial system to international commerce and payments, persons without access to US banks and other constituent parts of the US financial system are largely shut out of the international financial system (this assumes, of course, effective enforcement and compliance by US authorities, banks and international financial system participants).[21]

Put in context, the United States’ Global Magnitsky Act and sanctions program are singular in their force. Other countries have adopted versions of a Magnitsky Act (including Canada, which has imposed sanctions under its law), but none of these other Magnitsky frameworks rival the potential sweep and impact of the United States’ Magnitsky framework.[22]

 

Immigration Sanctions

The Global Magnitsky Act and EO 13818 impose immigration sanctions that prohibit sanctioned persons from immigrant and non-immigrant entry into the United States.[23] The Global Magnitsky Act excepts from immigration sanctions persons whose admission to the United States would “further important law enforcement objectives” or is “necessary to permit” the United States to comply with obligations vis-à-vis the United Nations.[24] EO 13818 contains no such exception.

 

Civil and criminal penalties for sanctions evasion and violations or conspiracies to violate financial sanctions

EO 13818 prohibits transactions that, in effect or purpose, “evade or avoid …” or “violate …” the financial sanctions provisions, as well as conspiracies to violate “any of the [blocking] prohibitions set forth in” the order.[25]

 

In addition, the Global Magnitsky Act provides that persons who violate or attempt or conspire to violate sanctions authorised by the Act, or persons who “cause … a violation” of sanctions, are subject to civil and criminal penalties pursuant to the International Emergency Economic Powers Act (IEEPA).[26] Civil penalties under the IEEPA are up to $250,000 or twice the amount of a transaction that was the source of a violation.[27] The IEEPA’s criminal penalties attach to wilful violations and attempts or conspiracies to violate a relevant sanctions program, as well as the wilful aiding or abetting of such acts, punishable by fines of up to $1,000,000 and/or imprisonment for up to 20 years.[28]

“It remains to be seen how the current administration will enforce the Global Magnitsky Sanctions. For now, their existence alone is a powerful weapon in the administration’s arsenal, a reality that should be taken seriously—and for different purposes—by a wide range of foreign government and private parties.”

 

Who can recommend individuals for the President to sanction?

The Act allows the Assistant Secretary of State for democracy, human rights, and labour, in consultation with other State Department officials, to submit recommendations for people to be sanctioned to the Secretary of State. The Committee on Banking, Housing, and Urban Affairs and the Committee on Foreign Relations in the Senate and the Committee on Financial Services and the Committee on Foreign Affairs in the House can also submit names to the President. In determining whether to impose sanctions, the President can also review credible information obtained by other countries or non-governmental organisations that monitor human rights violations. In practice, the decision about whether to carry out the sanctions will most likely be made jointly by the State Department and Treasury Department.

 

How effective are sanctions from the Global Magnitsky Act?

Sanctions deny individuals entry into the US, allow the seizure of any of their property held in the country, and effectively prevent them from entering into transactions with large numbers of banks and companies. Both American firms and international firms with American subsidiaries run the risk of violating US sanctions if they do business with sanctioned people. The law’s impact is exemplified by the Russian official sanctioned by the Magnitsky Act who hired a Russian lawyer, Natalia Veselnitskaya, to advocate against the Act at the US Congress and help establish a non-profit organisation opposing the Act.

 

Designations

OFAC has publicly designated 107 individuals under EO 13818, with 105 currently active designations following two removals. In 2017, 15 individuals were designated, followed by 28 in 2018, 52 in 2019, and 12 in the Global Magnitsky Human Rights Accountability Act <https://crsreports.congress.gov> 2020 to date (see Table 1 below). Among active designations, 60 individuals are designated primarily for human rights abuse, 42 are designated primarily for corruption, and 3 are designated for both human rights abuse and corruption. Also currently designated are 105 entities—many due to their being owned or controlled by a designated individual. Countries with five or more individuals designated include Saudi Arabia (17 individuals), Uganda (11), Serbia (10), Burma (9), Iraq (8), South Sudan (8), China (7), and Cambodia (6). In some instances, the executive branch has designated numerous individuals in relation to one case of human right abuse or corruption (for example, see “Section 1263(d) and Jamal Khashoggi”)[29]. The Global Magnitsky Act requires the President to report to Congress annually, by December 10, on designations made over the previous year. According to the December 2019 report, the United States prioritises actions “that are expected to produce a tangible and significant impact on the sanctioned person and their affiliates, to prompt changes in behaviour or disrupt the activities of malign actors”.

 

Congressional Input on Designations

In making sanctions determinations, the law requires the President to consider information provided jointly by the Chairperson and Ranking Member of certain committees — Senate Banking and Foreign Relations, and House Financial Services and Foreign Affairs—as well as credible information obtained by foreign countries and non-governmental human rights organisations. A separate provision, Section 1263(d), requires the President to respond within 120 days to requests from the aforementioned committee leadership to determine whether a foreign person has engaged in sanctionable activity under the law and whether or not the President intends to impose sanctions.[30] When signing the Bill into law, however, President Barack Obama singled out this latter requirement as a challenge to constitutional separation of powers and indicated that he would “maintain [his] discretion to decline to act on such requests when appropriate”.

 

Other Sanction Authorities

Congress has enacted other broad sanctions authorities to target human rights abusers or individuals involved in other nefarious activities, as well as country-specific laws that aim to impose sanctions for these reasons. In addition, the President has used emergency authorities in the

National Education Association (NEA) and IEEPA to impose economic sanctions on individuals in certain countries.[31]

Section 212 of the Immigration and Nationality Act, 1952 (INA) similarly provides the Secretary of State with broad authority to impose entry denials. A recurring provision, Section 7031(c), in annual foreign operations appropriations requires the Secretary of State to deny visas to enter the United States to foreign officials and their immediate family members about whom the Secretary has credible information that the individual is “involved in significant corruption … or a gross violation of human rights”. In some cases, the executive branch has publicly sanctioned individuals both pursuant to this appropriations provision as well as under EO 13818 or other economic sanctions programs.[32]

 

Similar Legislations in Other Countries

Several European countries, Canada, and the European Parliament passed Bills imposing sanctions on Russian officials implicated in Sergei Magnitsky’s death. Recently, several countries have expanded their sanctions regimes to include human rights abusers from any country. On February 21, the United Kingdom passed its own version of the Global Magnitsky Act. Estonia passed a similar law in 2016. The Canadian Parliament and European Parliament are both considering Bills to target international human rights violators.

 

Other Western States are following America’s lead. In 2017, the UK passed its own Magnitsky law, the Criminal Finances Act, which allows authorities to recover proceeds of gross human rights abuses overseas that are housed in the UK. Likewise, in 2017 the Canadian Parliament passed the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law).[33]

 

Estonia, Latvia and Lithuania have also implemented dozens of “Magnitsky sanctions,” a move Bryce Klehm has called “an extraordinarily symbolic move given their geographical proximity to Russia”.[34] Moreover, according to Bill Browder, several other countries appear ready to adopt Magnitsky laws, including Sweden, Ukraine and South Africa.[35] Browder reasons: “It is clear we have reached a tipping point, and getting France and Germany on board is next. These countries will tip the balance of getting an EU-wide Magnitsky Act. I do not expect the process to be easy, but we have accomplished so much more than I expected recently, that I think anything is possible now.”[36]

 

Canadian Magnitsky Law

In March 2015, the Parliament of Canada passed an initial motion towards passing such a law.[37] Canada’s Sergei Magnitsky Law, officially the Justice for Victims of Corrupt Foreign Officials Act, received royal assent and was passed into law on 18-10-2017.[38] The Act is regulated by the Justice for Victims of Corrupt Foreign Officials Regulations.[39]

 

On 29-11-2018, Canada amended the regulations to include 17 foreign nationals from Saudi Arabia, who were accused of being responsible for or complicit in gross violations of internationally recognised human rights, particularly the torture and extra-judicial killing of Saudi journalist Jamal Khashoggi.[40]

 

European Magnitsky Act

In March 2019, the European Parliament passed a Resolution 44770 in favour of passing a Magnitsky Act for the European Union.[41] In her September 2020 State of the European Union address, Ursula von der Leyen stated that one of the European Commission’s goals was passing a European Magnitsky Act.[42]

On 6-7-2020, United Kingdom’s Foreign Secretary Dominic Raab announced the first sanctions under a law similar to the Global Magnitsky Act, where 47 individuals came under travel restrictions and asset freezes. The regulations were meant to give the Government a power to impose sanctions on those involved in the worst human rights abuses around the world.[43]

 

American Convention on Human Rights, 1969[44]

As per Article 1 of the Convention, the States parties have an obligation to respect the rights and freedoms recognised herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, colour, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.

 

Inter-American Convention to Prevent and Punish Torture, 1987

The Inter-American Convention to Prevent and Punish Torture (IACPPT)[45] specifies the measures that American States must take in order to not only punish perpetrators of torture, but also to prevent and punish any other cruel, inhuman or degrading treatment within their respective jurisdictions.

 

In accordance with Article 6, all parties must actively take efficient measures in order to “prevent and punish torture within their jurisdiction”. This includes ensuring that such acts or attempts to commit torture are considered offences under their respective criminal law, and are appropriately punished through penalties reflecting the nature of the crime. In accordance with Articles 3 and 4, this also includes protection from private actors, including public servants or employees, and any such individual who has acted under the orders of a superior.

 

In Article 7, the Convention states that all State parties shall take an active duty in properly training police officers and other public officials in charge of the detainment of persons deprived of their freedom. In doing so, there should be special attention to the “prohibition of the use of torture in interrogation, detention or arrest,” as well as an emphasis on measures to, “prevent other cruel, inhuman or degrading treatment or punishment”. In terms of extradition, according to Article 11, all parties must “extradite anyone accused of having committed the crime of torture or sentenced for commission of that crime, in accordance with their respective national laws on extradition and their international commitments on this matter”. State parties can practise jurisdiction when the punishable offence has been committed within their jurisdiction and when the alleged perpetrator and/or victim is a national of their State.

 

According to Article 17, “the States parties undertake to inform the Inter-American Commission on Human Rights of any legislative, judicial, administrative, or other measures they adopt in application of this convention”. States are obligated to report to the Commission any actions that are considered torture, and any preventive measures they are imposing within their jurisdiction. Furthermore, the Inter-American Commission on Human Rights will attempt to annually report and analyse the actual status of Member States of the Organisation of American States (OAS) in reference to the prevention and elimination of torture.

 

According to Article 8, in terms of individual cases, whether initiated by individuals or the State, the cases may be “submitted to the international fora whose competence has been recognised by that State”. While this article does not specify the Inter-American Court, if a State has accepted the Inter-American Court’s jurisdiction in their region, then the Inter-American Court is the forum that is utilised. Once States have ratified or acceded the convention, as well as filed a declaration of compliance recognising the court’s jurisdiction at the time of the purported torture, then the court may rule on the State’s liability for violating the treaty. If a State has not expressly declared compliance with the court’s jurisdiction, then the court cannot use its jurisdiction to carry out judgment. States may accept jurisdiction of the court with a temporal condition, generally to avoid retroactive prosecution (e.g. stipulating that the court’s jurisdiction applies after a certain date).[46]

 

Inter-American Convention on Forced Disappearance of Persons, 1994

Organisation of American States (OAS) are signatory to the Inter-American Convention on Forced Disappearance of Persons, 1994. As per Article 1 of the Convention[47], the State parties shall not practice, permit, or tolerate the forced disappearance of persons, even in states of emergency or suspension of individual guarantees.

Besides, the State parties are responsible to punish within their jurisdictions, those persons who commit or attempt to commit the crime of forced disappearance of persons and their accomplices and accessories.[48]

 

The States are further required to cooperate with one another in helping to prevent, punish, and eliminate the forced disappearance of persons and thereby take any legislative, administrative, judicial, and any other measures necessary to comply with the commitments undertaken in this Convention.[49]

 

As per Article VI, when a State party does not grant the extradition, the case shall be submitted to its competent authorities as if the offence had been committed within its jurisdiction, for the purposes of investigation and when appropriate, for criminal action, in accordance with its national law. Any decision adopted by these authorities shall be communicated to the State that has requested the extradition.[50]

 

International Human Rights Law Perspective

First, under international human rights law, the obligations of States parties relate only to the promotion and protection of the human rights of their own citizens or others living within their own jurisdiction. In other words, the international human rights system, which emerged and evolved in the aftermath of the Second World War, is, in principle, respectful of State sovereignty. While some steps have been taken, over the intervening years, to “pierce holes” in this protective veil of sovereignty (e.g. the adoption of country-specific human rights resolutions, and the creation of country-specific special procedures), by and large there remains little scope, beyond public criticism and condemnation, for one UN Member State to seriously address (i.e. secure some degree of justice/legal accountability for) human rights violations perpetrated by and within another State.

 

Second, and linked to the first point, international human rights law, and the work of the international human rights system – led by the UN Human Rights Council – is extremely State-centric. In this, it perfectly reflects the neorealist nature of the overall international system (i.e. it is based on the sovereign interactions of nation States). By extension, it is States – not individual representatives of those States – that ratify and become party to the international human rights treaties. Thus, when States in the UN Human Rights Council consider the violation of human rights, including serious violations such as arbitrary detention, torture and extra-judicial killing, their comments (and any consequent UN resolution) are usually focussed on the State concerned rather than on individual representatives of that State (though senior politicians and military commanders are sometimes mentioned). This can – and usually does – have the effect of creating a sense of impunity on the part of State officials (especially those representing powerful States) – a sense that they can “hide” behind the State and are, in effect untouchable.

 

Third, in order for States to be bound by international human rights law, they must first voluntarily ratify the relevant UN human rights treaty or treaties. Notwithstanding jus cogens principles of international law (e.g. freedom from torture), the human rights obligations of States are usually understood to be limited (especially by States themselves) to those treaties to which they are party.

 

Finally, in the political organs of the UN human rights system, it is traditionally very difficult to prove that phenomena such as, for example, climate change or corruption, constitute a violation of human rights. That is because of the legal difficulties inherent in demonstrating causality  i.e. between an act or omission on the part of a State and a demonstrable harm to an individual’s rights. Indeed, it is usually US diplomats at the UN who take the hardest (and most legalistic) line on this point, arguing that there may be a relationship between, say, climate change and human rights, or even that climate change might undermine certain human rights, but drawing a clear line between this and any recognition that global warming violates the rights of those affected.

 

The Global Magnitsky Act (GMA) represents a fundamental challenge to, and paradigm shift from, these key precepts of international human rights law and policy.

  • First, it in effect extends US jurisdiction to address and respond to the violation of human rights anywhere in the world (i.e. it creates a system of universal jurisdiction).
  • Second, it creates and explicitly recognises a causal link between grand corruption and serious human rights violations.
  • Third, rather than targeting sanctions for serious human rights violations/grand corruption at States, the GMA directly and explicitly targets individual representatives of the State, specifically those individuals responsible for the alleged human rights violation. This has the potential to transform conceptions of international human rights law, justice and accountability.
  • Finally, under the GMA it is irrelevant whether or not the State in which the violation is alleged to have taken place is party – or not – to the relevant international human rights treaties.

 

Rationale of International Human Rights Law

The international human rights movement was strengthened when the United Nations General Assembly adopted of the Universal Declaration of Human Rights (UDHR) on 10-12-1948. A series of international human rights treaties and other instruments adopted since 1945 have conferred legal form on inherent human rights and developed the body of international human rights. Other instruments have been adopted at the regional level reflecting the particular human rights concerns of the region and providing for specific mechanisms of protection. Most States have also adopted constitutions and other laws which formally protect basic human rights. While international treaties and customary law form the backbone of international human rights law other instruments, such as declarations, guidelines and principles adopted at the international level contribute to its understanding, implementation and development. Respect for human rights requires the establishment of the rule of law at the national and international levels.[51]

 

As international law currently stands, States are the primary duty-bearers of human rights obligations. In principle, however, human rights can be violated by any person or group, and in fact, human rights abuses committed by non-State actors (such as business enterprises, organised criminal groups, terrorists, guerrilla and paramilitary forces and inter-governmental organisations) are on the increase.

 

International human rights treaties and customary law impose three obligations on States: the duty to respect; the duty to protect; and the duty to fulfil. While the balance between these obligations may vary according to the rights involved, they apply to all civil, political, economic, social and cultural rights. Moreover, States have a duty to provide a remedy at the domestic level for human rights violations.[52]

 

International human rights law lays down obligations which States are bound to respect. By becoming parties to international treaties, States assume obligations and duties under international law to respect, to protect and to fulfil human rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect individuals and groups against human rights abuses. The obligation to fulfil means that States must take positive action to facilitate the enjoyment of basic human rights.

 

Through ratification of international human rights treaties, Governments undertake to put into place domestic measures and legislation compatible with their treaty obligations and duties. Where domestic legal proceedings fail to address human rights abuses, mechanisms and procedures for individual complaints or communications are available at the regional and international levels to help ensure that international human rights standards are indeed respected, implemented, and enforced at the local level.

 

Protection of freedom of expression of parliamentarians

Parliamentary immunities ensure the autonomy, independence and dignity of the representatives of the nation and of the institutions of Parliament itself by protecting them against any threat, intimidation or arbitrary measure by public officials or other persons. The scope of immunities varies. The minimum guarantee, which applies to all Parliaments, is non-accountability. Under this guarantee, parliamentarians in the exercise of their functions may express themselves freely without the risk of sanctions, other than that of being disavowed by the electorate, which may eventually not renew their mandates. In many countries, Members of Parliament also enjoy inviolability: it is only with the consent of Parliament that they may be arrested, detained and subjected to civil or criminal proceedings. Inviolability is not equivalent to impunity. It merely entitles Parliament to verify that proceedings brought against its members are legally well founded.[53]

 

Occupation and international humanitarian law – No sanction of Security Council required

Article 42 of the 1907 Hague Regulations (HR) states that a “territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised”.[54]

 

According to their common Article 2, the four Geneva Conventions of 1949 apply to any territory occupied during international hostilities. They also apply in situations where the occupation of State territory meets with no armed resistance.[55]

 

The legality of any particular occupation is regulated by the UN Charter and the law known as jus ad bellum. Once a situation exists which factually amounts to an occupation the law of occupation applies – whether or not the occupation is considered lawful.[56]

 

Therefore, for the applicability of the law of occupation, it makes no difference whether an occupation has received Security Council approval, what its aim is, or indeed whether it is called an “invasion”, “liberation”, “administration” or “occupation”. As the law of occupation is primarily motivated by humanitarian considerations, it is solely the facts on the ground that determine its application.[57]

 

Private property cannot be confiscated by the occupier. The occupant does not acquire ownership of immovable public property in the occupied territory, since it is only a temporary administrator. Subject to restrictions regarding their exploitation and use, it can nevertheless make use of public property, including natural resources, but it must safeguard their capital value, in accordance with the law of usufruct (HR, Article 55).[58]

 

The normal way for an occupation to end is for the occupying power to withdraw from the occupied territory or be driven out of it. However, the continued presence of foreign troops does not necessarily mean that occupation continues.[59]

UN Charter — Sanctions authorised by Security Council

Chapter VII of the UN Charter powers mandate the UN Security Council to sanction intervention to meet threats to international peace and security. Any such action runs counter to the general principle of non-intervention stated in the Charter, Article 2(4), which reads:

 

All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations.

 

Security, development and human rights constitute the three mutually dependent pillars of the United Nations. Matters of international peace and security are discussed and decided in the Security Council, which can impose binding sanctions and authorise the use of military force under Chapter VII of the UN Charter.[60]

  • Article 41 – Measures not involving the use of armed force

Among the most common measures not involving the use of armed force, which the Council has at its disposal to enforce its decisions, are those measures that are known as sanctions. Sanctions can be imposed on any combination of States, groups or individuals. The range of sanctions has included comprehensive economic and trade sanctions and more targeted measures such as arms embargoes, travel bans, financial or diplomatic restrictions. Apart from sanctions, Article 41 includes measures such as the creation of international tribunals (such as those for the former Yugoslavia and Rwanda in 1993 and 1994) or the creation of a fund to pay compensation for damage as a result of an invasion.[61]

  • Article 42 – Other measures to maintain or restore international peace and security

Article 42 of the Charter enables the Council to use force to maintain or restore international peace and security if it considers non-military measures to be or to have proven inadequate. As the United Nations does not have any armed forces at its disposal (for details, see Article 43), the Council uses Article 42 to authorise the use of force by a peacekeeping operation, multinational forces or interventions by regional organisations.[62]

 

Sanctions authorised by Security Council to combat terrorism

Since 2003 Security Council resolutions have gradually directed States to ensure that counter-terrorism measures comply with international human rights law.[63] Among the most important of these is Resolution 1456 of 2003, which calls on States to “ensure that any measure taken to combat terrorism comply with all their obligations under international law … in particular international human rights, refugee, and humanitarian law”.[64] In 2005 the UN Counter-Terrorism Committee, established by the Security Council to monitor compliance with Resolution 1373, appointed a human rights advisor to its executive directorate.[65] However, the advisor was not allowed to advise the Counter-Terrorism Committee until 2006.[66] In 2010 the Security Council encouraged the Committee’s Executive Directorate to further incorporate human rights into its work.[67] The Security Council also supported a statement by the UN General Assembly that respect for human rights and the rule of law are the “fundamental basis of the fight against terrorism” and that violations of human rights can be “conducive to the spread of terrorism”.[68]

 

In response to mounting criticism and legal challenges, the Security Council has also started to reform the Al Qaeda and Taliban Sanctions List.[69] These reforms still fall short. As Martin Scheinin, the then — UN Special Rapporteur on Human Rights and Counter-Terrorism, said in his final report to the UN General Assembly in August 2010, the counter-terrorism regime created by the Security Council in some cases “continues to pose risks to the protection of a number of international human rights standards”.[70] He later noted that the procedures for terrorist listing and delisting under the Al Qaeda and Taliban Sanctions List by the Security Council’s 1267 Committee still did not meet international human rights standards concerning due process or fair trial.[71]

 

Convention Against Torture and other cruel, inhuman or degrading treatment or punishment

The United States Senate ratified the Convention Against Torture on 27-10-1990 and became a party to the Convention Against Torture (CAT) on 21-10-1994.[72]

State parties’ obligations

States that are party to the CAT are required to fulfil the following obligations:

  • Take effective legislative, administrative, judicial, or other measures to prevent acts of torture in any territory under its jurisdiction (Article 2).[73]
  • Not expel, return, or extradite a person to another State where there are substantial grounds for believing that the person would be in danger of being subject to torture (Article 3).
  • Make torture a punishable offence; take into custody individuals who torture; and submit cases of torture to the proper authorities for prosecution (Articles 4-7).

 

Applicability of such laws in India

The applicability of foreign judgments and decrees in India is governed under Section 44-A of the Code of Civil Procedure (CPC) read along with the provisions of Section 13 of the Code of Civil Procedure. According to Section 13 of the Code of Civil Procedure, 1908, a proceeding against a foreign judgment can be instituted in the following two ways:

(1) A proceeding could be instituted under the provisions of Section 44-A read alongside the necessary provisions which are provided in Section 13 CPC, this is when the matter that has to be challenged is decided by a competent court in the, “reciprocating territories”.

(2) There are reciprocating territories and non-reciprocating territories. In case, a judgment which is passed in the territory of a non-reciprocating country needs to be challenged, then a fresh civil suit needs to be filed in the court in India in order to challenge the judgment passed by the foreign court. However, not only civil, but even criminal proceedings could be instituted challenging the judgment or the decree, passed by a court in a reciprocating or a non-reciprocating territory, however, they are also subject to certain exceptions which shall be dealt with ahead.

 

Judgments from “non-reciprocating territories”, such as the United States, can be enforced only by filing an execution decree in an Indian court for a judgment based on the foreign judgment. The foreign judgment is considered evidentiary. Presently, the United States of America is not declared as a “reciprocating territory”[74] by the Government of India.

The time limit to file such a lawsuit in India is within three years of the foreign judgment.

A foreign judgment is considered conclusive by an Indian court if such judgment:

  • has been pronounced by a court of competent jurisdiction;
  • has been given on the merits of the case;
  • is founded on correct view of international law;
  • is contained in proceedings that followed principles of natural justice;
  • has not been obtained by fraud; and
  • does not sustain a claim on a breach of any law in force in India.

Rule of law as enshrined in Part III of the Indian Constitution for implementation of democracy and protection of human rights is the supreme law which excludes existence of arbitrariness. However, such rule of law cannot be established by mere enactment of law and judiciary ensures enforcement of such rights.

 

Doctrine of Territorial Nexus

Therefore, in present times, the Parliament may enact a law related to extra-territorial operations. The only problem is the enforcement of such extra-territorial operations of law, because it is beyond the executive and judicial domain of India. If an extra-territorial law cannot be enforced, then it is useless to enact it but no one can suggest today that a law is void or ultra vires which is passed by the Parliament on the ground of its extra-territorial operations. Thus a question mark may be put on the practicability of the extra-territorial operation law but not on its existence. The Indian Parliament can enact laws for territories outside of India that have an impact on or a nexus with India. The laws can be enacted for only such extra-territorial operations that have a real connection or an expected real connection with India and nothing illusionary or fanciful. Thus, on account of their having some nexus with India, the Indian Parliament can enact such laws for the benefit of the people of India.

 

In GVK Industries Ltd. v. ITO[75] a question arose whether the Parliament was empowered to enact laws in respect of extra-territorial aspects or causes that have no nexus with India, and furthermore if such laws be bereft of any benefit to India? The clue of answer to this question also lies in word “for” used in Article 245(1). The Court derived the responsibility of the Parliament with the help of word “for” used in Article 245(1) and stated that Parliament of India is to act as the Parliament of India and of no other territory, nation or people. The Court also derived two related limitations in this regard, the first being that the Parliament may only exercise its powers for the benefit of India in regard to the necessity. The laws enacted by Parliament may enhance the welfare of people in other territories too but the benefit to or of India remains the central and primary purpose. The second limitation that the law made by Parliament with regard to extra-territorial aspects or causes that do not have any, or may be expected to not have nexus with India, transgress the first condition. Sudershan Reddy, J. for Constitution Bench negated the answer of question logically and held that the Parliament’s powers to enact legislation, pursuant to clause (1) of Article 245 may not extend to those extra-territorial aspects or causes that have no impact on or nexus with India.[76]

 

The law made by the Parliament related to extra-territorial operations is within judicial scrutiny but can never be deemed as invalid on grounds of its extra-territorial nature and in this way, Article 245(2) reduces the power of judiciary to invalidate such laws. The Parliament of India is empowered to make laws beyond territorial boundary of India but the law must have a nexus or an impact on India. If the Parliament makes laws having extra-territorial operation without having any nexus with or any impact on India, then under such circumstances; judiciary has the power to invalidate such a law because it does not fulfil the condition of Article 245(2). Thus, the words of Article 245(2) create a specific exception for the law made by Parliament in respect of Article 245(1).

 

Government of India can enter into an agreement of foreign jurisdiction subject to the Foreign Jurisdiction Act, 1947. The mandate of Article 260 clearly rules out the possibility of Parliament under Article 245(2) acting outside the territory of India without having any nexus. Therefore, Article 245(2) requires nexus with India. For Article 260, the only condition is agreement subject to the Foreign Jurisdiction Act of 1947. The extra-territorial operation of law is allowed under Article 245(2) of the Constitution of India because the phrases “operation of law” and “making of law” do not possess the same meaning.

 

The dimension of “extra-territorial operation of law” and its distinction with “make law”. The distinction between the phrases “make laws” and “extra-territorial operation of law” is important to understand the constitutional scheme envisaged under Articles 245(1) and (2) of the Constitution of India. The conflict between “principle of sovereignty of States” that reflects in the phrase “make law” (the laws made by one State can have no operation in another State) and “extra-territorial operation of law” reflected in Article 245(2) was drawn in Electronics Corpn .of India Ltd. v. CIT (ECIL).[77]  In this case, the three-Judge Bench of Supreme Court relied on the ratio of British Columbia Railway Co. Ltd. v. R.[78] that the problems of inability to enforce the laws outside the territory of a nation State cannot be grounds to hold such laws invalid. For the Bench R.S. Pathak, C.J. held that a parliamentary statute having extra-territorial operation cannot be ruled out from contemplation. The operation of the law can extend to persons, things and acts outside the territory of India.[79]

 

In ECIL case[80], the Court distinguished the phrase “make law” and “extra-territorial operation of law” on the basis of provocation for the law, object of law and its relationship with India. In both the situation, the provocation for the law must be found within India itself. But in the situation of extra-territorial operation, in order to subserve the object, the law may have exercises beyond the territorial boundary of India and in such conditions; the object must be related to something in India. The Court also stated that it is inconceivable in a situation of extra-territorial operation that law made by Parliament in India has no relationship with anything in India. Finally, the Supreme Court in ECIL case[81] defined the parameter of extra-territorial operation of law and held that Parliament have competence to enact laws with respect to aspects or causes that occur, arise or exist, or may be expected to do so, solely within India. The operation of the law can extend to person, things and acts outside the territory of India. Parliament will have no competence to make the laws unless a nexus with something in India exists. In view of the substantial importance of the question, the Bench referred the case for determination by a Constitution Bench. The dimension of extra-territorial operation of law was again substantially discussed in GVK Industries Ltd. v. ITO[82] by five-Judge Constitution Bench of the Supreme Court of India which opined that the distinction drawn in ECIL case[83] between “make laws” and “operation of law” is a valid one, and leads to a correct assessment of the relationship between clauses (1) and (2) of Article 245. In this case, the Court applying the novel interpretative methodology observed:[84] [The] Constitution [may be viewed] as [being] composed of constitutional topological spaces. Each part of the Constitution deals with certain core functions and purposes, though aspects outside such a core, which are contextually necessary to be included, also find place in such parts. In the instant case Chapter 1, Part XI, in which Article 245 is located, is one such constitutional topological space. Within such a constitutional topological space, one would expect each provision therein to be intimately related to, gathering meaning from, and in turn transforming the meaning of, other provisions therein.

 

The “topological space” theory was applied in the interpretation of Articles 245(1) and (2) and derive contextual necessary support from Article 1(3)(c), Articles 51 and 260 as abovementioned from other part of the Constitution of India. The Court also analysed the textual and historical arguments of Articles 245(1) and (2) of the Constitution of India and arrived at the conclusion that Article 245 does not empower the Parliament to make laws beyond territorial boundary of India except in the case that extra-territorial operation of law has a nexus with or an impact on India.[85] The other provisions of Chapter 1, Part XI of the Constitution of India create a topological space referred to laws made “for the whole or any part of the territory of India” alone. The Court after analysis of ratio of ECIL case[86] and wider structural analysis of the constitutional provision, finally held that the Parliament is constitutionally restricted from enacting legislation with respect to extra-territorial aspects or causes that do not have, nor expected to have any direct or indirect, tangible or intangible impact or the effect or consequence for the territory of India, or any part of India or the interests of the welfare of the well-being of or security of inhabitants of India and Indians.[87] Therefore, in present times, the Parliament may enact a law related to extra-territorial operations. The only problem is the enforcement of such extra-territorial operations of law, because it is beyond the executive and judicial domain of India. If an extra-territorial law cannot be enforced, then it is useless to enact it but no one can suggest today that a law is void or ultra vires which is passed by the Parliament on the ground of its extra-territorial operations. Thus a question mark may be put on the practicability of the extra-territorial operation law but not on its existence. The Indian Parliament can enact laws for territories outside of India that have an impact on or a nexus with India. The laws can be enacted for only such extra-territorial operations that have a real connection or an expected real connection with India and nothing illusionary or fanciful. Thus, on account of their having some nexus with India, the Indian Parliament can enact such laws for the benefit of the people of India.


† Advocate is a practicing counsel at the Supreme Court of India, BA LLB (Hons.), LLM in Comparative Criminal Law from McGill University, Canada and MSc, Criminology and Criminal Justice from University of Oxford and Research Associate (India) University of Oxford, United Kingdom.

Credits to Gauranshi Harjai, Advocate for her assistance in the research and compilation. The content of the article are personal and has no bearing on the institutional affiliations of the author.

[1] “US Law Firm Seeks Action Against Adityanath, UP Top Cops for ‘Encounter’ Killings”, The Wire, 21-2-2022  <US Law Firm Seeks Action Against Adityanath, UP Top Cops for “Encounter” Killings (thewire.in)>.

[2] US Government sanctions RAB, Bangladesh police chief See < HERE >

[3] “US Law Firm Seeks Action Against Adityanath, UP Top Cops for ‘Encounter’ Killings”,  The Wire, 21-2-2022  <US Law Firm Seeks Action Against Adityanath, UP Top Cops for “Encounter” Killings (thewire.in)>.

[4] Sergei Magnitsky Rule of Law Accountability Act of 2012 [Title IV of Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012, Pub. Law No. 112-208, 126 Stat. 1502 (codified at 22 USC § 5811 note)].

[5] Sergei Magnitsky Rule of Law Accountability Act of 2012 [Title IV of Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012, Pub. Law No. 112-208, 126 Stat. 1502 (codified at 22 USC § 5811 note)] at § 402(a)(7)-(10) (outlining Congress’ findings and sense as to the “politically motivated … persecution” of Sergei Magnitsky and subsequent “impunity [of certain Russian state officials] for their involvement in corruption and the carrying out of his repressive persecution”. (Please check)

[6] “The Global Magnitsky Human Rights Accountability Act” In Focus, Congressional Research Service, updated 28-10-2020 <The Global Magnitsky Human Rights Accountability Act (congress.gov)>.

[7] The Russian Foreign Ministry released a list of 18 current or former US officials on April 13 who it said “are connected to legalising torture and unlimited detention of prisoners in the special prison at Guantanamo [and] to the arrests and kidnapping of Russian citizens in third countries and infringing on their lives and health.” “Russia Responds to ‘Magnitsky List’ by Banning Americans” 13-4-2013. Radio Free Europe Radio Liberty, <Russia Responds to ‘Magnitsky List’ by Banning Americans (rferl.org)>.

[8] The Russian Foreign Ministry released a list of 18 current or former US officials on April 13 who it said “are connected to legalising torture and unlimited detention of prisoners in the special prison at Guantanamo [and] to the arrests and kidnapping of Russian citizens in third countries and infringing on their lives and health.” “Russia Responds to ‘Magnitsky List’ by Banning Americans” 13-4-2013. Radio Free Europe Radio Liberty, <Russia Responds to ‘Magnitsky List’ by Banning Americans (rferl.org)>.

[9] Exec. Order No. 13818, “Blocking the Property of Persons Involved in Serious Human Rights Abuse or Corruption, 82 Fed. Reg. 60, 839 (20-12-2017) [“EO 13818” or the “order”]. The order took effect on 21-12-2017. Id. at § 12 (please check).

[10] EO 13818, preamble. The President declared a national emergency and invoked powers pursuant to the International Emergency Economic Powers Act, 50 USC § 1701 (IEEPA), even though the Global Magnitsky Act does not require such a declaration to impose sanctions. Pub. Law No. 114-328, § 1263(b)(1)(B) (stating that “the requirements of S. 202 of the … [IEEPA] … shall not apply for the purposes of … [the imposition of sanctions]”. The President’s declaration under the IEEPA of a national emergency provides the legal authority needed to support the many provisions of EO 13818 that exceed the scope of the Global Magnitsky Act.

[11] Global Magnitsky Human Rights Accountability Act, Subtitle F of the National Defense Authorization Act for Fiscal Year 2017, Pub. Law No. 114-328, §§ 1262-65 at § 1263, codified at 22 USC 2656 note (23-12-2016).

[12] A subsequently enacted law targets foreign corruption and human rights abuses, but in particular jurisdictions.  The Countering America’s Adversaries Through Sanctions Act (CAATSA), Pub. Law No. 115-44, 131 Stat. 886 (2-8-2017) provides for, inter alia: the imposition of sanctions on, among others, persons responsible for or complicit in “significant corruption” in the Russian Federation, Pub. Law No. 115-44, § 227, against persons engaged in certain human rights abuses in Iran (Pub. Law No. 115-44, Title II, Countering Iran’s Destabilising Activities Act of 2017 at § 106) and North Korea (Pub. Law No. 115-44, Title III, Korean Interdiction and Modernisation of Sanctions Act, §§ 321-322).

[13] Sergei Magnitsky Act, Pub. Law No. 112-208, § 402(a)(10).

[14] Exec. Order No. 13, 818, “blocking the property of persons involved in serious human rights abuse or corruption, 82 Fed. Reg. 60, 839 (20-12-2017) [“EO 13818” or the “order”]. The order took effect on 21-12-2017. Id. at § 12.  (Please check)

[15] Exec. Order No. 13, 818, “blocking the property of persons involved in serious human rights abuse or corruption, 82 Fed. Reg. 60, 839 (20-12-2017) [“EO 13818” or the “order”]. The Order took effect on 21-12-2017. Id. at § 12. (Please check)

[16] Sergei Magnitsky Rule of Law Accountability Act of 2012 [Title IV of Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012, Pub. Law No. 112-208, 126 Stat. 1502 (codified at 22 U.S.C. § 5811 note)].

[17] It is only after sanctions have been imposed that the Global Magnitsky Act considers whether justice has been administered as it authorizes the President to “terminate the application of sanctions” if he (or she) determines that a sanctioned person “has been prosecuted appropriately” or “credibly demonstrated a significant change in behaviour, has paid an appropriate consequence . . . and has credibly committed to not engage in  . . . (a sanctionable activity) in the future.” Global Magnitsky Act, Pub. Law No. 114-328, § 1263(g)(2)-(3) (providing also at § 1263(g) that the President must report the termination of sanctions to the appropriate congressional committees at least 15 days before such termination).

[18] Individuals targeted include: Yahya Jammeh, the former President of the Gambia; Maung Maung Soe, Chief of the Burmese Army’s Western command, who oversaw the military operation in Burma’s Rakhine State that was responsible for widespread human rights abuses against Rohingya civilians; Sergey Kusiuk, commander of an elite Ukrainian police unit (the Berkut) accused of attacking peaceful protesters in 2013; Julio Antonio Juarez Ramirez, a Guatemalan Congressman accused of ordering an attack in which two journalists were killed and another injured; Ramzan Kadyrov, Head of the Chechen Republic; Roberto Jose Rivas Reyes, President of Nicaragua’s Supreme Electoral Council; Dan Gertler, an Israeli billionaire who has profited from corrupt mining deals in the DRC; Slobodan Tesic, an arms dealer in the Balkans; and Artem Chaika, the son of Russia’s Prosecutor General.

[19] “Interests in property” refers to property that is directly or indirectly owned 50% or more by one or more blocked persons. US Department of the Treasury, revised guidance on entities owned by persons whose property and interests in property are blocked, 13-8-2014. See also OFAC, entities owned by persons whose property and interest in property are blocked (50% Rule) (“OFAC 50% Rule Guidance”). For a discussion of the 50% rule and related due diligence (sanctions screening) practices, see, e.g. Hdeel Abdelhady, United States Adds Russian Direct Investment Fund, Other Russian Financial Services Actors to Sectoral Sanctions ListMassPoint PLLC, 7-8-2015.

[20] EO 13818, § 4.

[21] For a discussion of how the international strength of the US financial system and dollar play a role in extending the global reach of US law, see Hdeel Abdelhady, emerging trade and finance channels led by on-western nations could curtail the global reach of US lawMassPoint PLLC, 11-6-2015 (discussing the relationship between US financial system and dollar strength and the extraterritorial reach of US sanctions and other laws).

[22] See, e.g. Michelle Zilio, “Canada Sanctions 52 Human-Rights Violators Under New Magnitsky Law“, The Globe and Mail, 3-11-2017.

[23] The Global Magnitsky Act excepts from immigration sanctions persons whose admission to the United States would “further important law enforcement objectives” or is “necessary to permit” the United States to comply with obligations vis-à-vis the United Nations. Pub. Law No. 114-328, §1263(e).

[24] Id. at § 1263(e).

[25] EO 13818, § 5.

[26] Global Magnitsky Act, Pub. Law No. 114-328, § 1263(f) (incorporating the penalties of the IEEPA, 50 USC § 1705).

[27] IEEPA, 50 USC § 1705(b).

[28] Id. at § 1705(c).

[29] In October 2018, the then—Chairman and Ranking Member of the Senate Foreign Relations Committee, joined by other Senators, pursuant to S. 1263(d) requested a determination from the President concerning Global Magnitsky sanctions with respect to “any foreign person responsible” for gross human rights violations against Saudi journalist Jamal Khashoggi. In November 2018, the Trump Administration announced Global Magnitsky sanctions against 17 Saudi officials “for having a role” in Khashoggi’s killing. The administration ultimately declined, however, to provide a determination in response to the congressional request, prompting criticism from some Members of Congress.

[30] <PUBL328.PS (treasury.gov)>

[31] “The Global Magnitsky Human Rights Accountability Act” In Focus, Congressional Research Service, updated 28-10-2020 <The Global Magnitsky Human Rights Accountability Act (congress.gov)>.

[32] “The Global Magnitsky Human Rights Accountability Act” In Focus, Congressional Research Service, updated 28-10-2020 <The Global Magnitsky Human Rights Accountability Act (congress.gov)>.

[33] Witchel, Elisabeth. “The Magnitsky Act: An Alternative Form of Justice, but not a Replacement for it.” IFEX, 21-12-2017. Web: available <HERE >.

[34] Klehm, Bryce. “The Magnitsky Act: Legislative Justice.” Penn Undergraduate L.J., The Roundtable (2018). Web: available HERE .

[35] Witchel, Elisabeth. “The Magnitsky Act: An Alternative Form of Justice, but not a Replacement for it.” IFEX, 21-12-2017. Web: available <HERE >.

[36] Witchel, Elisabeth. “The Magnitsky Act: An Alternative Form of Justice, but not a Replacement for it.” IFEX, 21-12-2017. Web: available <HERE >.

[37] Clark, Campbell (25-3-2015). “All Parties Signal Support for Magnitsky Law to Sanction Russian Officials”The Globe and MailArchived from the original on 25-2-2019. Retrieved 11-3-2018.

[38]  “Senate Public Bill 42nd Parliament, 1st Session.” LEGIS info. Parliament of Canada. Archived from the original on 3-7-2020. Retrieved 1-7-2020.

[39]Justice for Victims of Corrupt Foreign Officials Act.” Canada’s International Relations. Ottawa: Government of Canada. 16-10-2019. Retrieved 21-10-2020.

[40]Justice for Victims of Corrupt Foreign Officials Act.” Canada’s International Relations. Ottawa: Government of Canada. 16-10-2019. Retrieved 21-10-2020.

[41] Brzozowski, Alexandra (10-12-2019). “EU Ministers Break Ground on European ‘Magnitsky Act’ “Euractiv. Retrieved 16-9-2020.

[42] Emmott, Robin (16-9-020). “Be Courageous in Diplomacy, EU Chief Says, Proposing New Sanctions”. Reuters. Retrieved 16-9-2020.

[43] “Britain’s New Toughness on Human Rights Abusers is a Welcome Change.” The Washington PostArchived from the original on 13-7-2020. Retrieved 12-7-2020.

[44] Adopted at the Inter-American Specialized Conference on Human Rights, San José, Costa Rica, 22-11-1969.

[45] The IACPPT was adopted by the General Assembly of the OAS in 1985. It entered into force in 1987 after 18 States ratified or acceded to it.

[46] <Inter-American Convention to Prevent and Punish Torture (humanrightscommitments.ca)>

[47] Article 1: The States parties to this Convention undertake:

(a) Not to practice, permit, or tolerate the forced disappearance of persons, even in states of emergency or suspension of individual guarantees.

(b) To punish within their jurisdictions, those persons who commit or attempt to commit the crime of forced disappearance of persons and their accomplices and accessories.

(c) To cooperate with one another in helping to prevent, punish, and eliminate the forced disappearance of persons.

(d) To take legislative, administrative, judicial, and any other measures necessary to comply with the commitments undertaken in this Convention.

[48] Article 1: The States parties to this Convention undertake:

(a) Not to practice, permit, or tolerate the forced disappearance of persons, even in states of emergency or suspension of individual guarantees.

(b) To punish within their jurisdictions, those persons who commit or attempt to commit the crime of forced disappearance of persons and their accomplices and accessories.

(c) To cooperate with one another in helping to prevent, punish, and eliminate the forced disappearance of persons.

(d) To take legislative, administrative, judicial, and any other measures necessary to comply with the commitments undertaken in this Convention.

[49] Article 1: The States parties to this Convention undertake:

(a) Not to practice, permit, or tolerate the forced disappearance of persons, even in states of emergency or suspension of individual guarantees.

(b) To punish within their jurisdictions, those persons who commit or attempt to commit the crime of forced disappearance of persons and their accomplices and accessories.

(c) To cooperate with one another in helping to prevent, punish, and eliminate the forced disappearance of persons.

(d) To take legislative, administrative, judicial, and any other measures necessary to comply with the commitments undertaken in this Convention.

[50] “Inter-American Convention on Forced Disappearance of Persons” 9-6-1994, UNHCR. <Refworld | Inter-American Convention on Forced Disappearance of Persons> Retrieved on 24-2-2022.

[51] International Human Rights, United Nations Human Rights <OHCHR | International Law>.

[52] “Human Rights”, United Nations Human Rights, Ch. 2, p. 30, Inter-Parliamentary Union, 2016. <HandbookParliamentarians.pdf (ohchr.org)>.

[53] “Human Rights”, United Nations Human Rights, Ch. 2, p. 30, Inter-Parliamentary Union, 2016. <HandbookParliamentarians.pdf (ohchr.org)> p. 92.

[54] “Occupation and International Humanitarian Law: Questions and Answers” 4-8-2004, International Committee of the Red Cross” <Occupation and International Humanitarian Law: Questions and Answers – ICRC>.

[55] “Occupation and International Humanitarian Law: Questions and Answers” 4-8-2004, International Committee of the Red Cross” <Occupation and International Humanitarian Law: Questions and Answers – ICRC>.

[56] “Occupation and International Humanitarian Law: Questions and Answers” 4-8-2004, International Committee of the Red Cross” <Occupation and International Humanitarian Law: Questions and Answers – ICRC>.

[57] “Occupation and International Humanitarian Law: Questions and Answers” 4-8-2004, International Committee of the Red Cross” <Occupation and International Humanitarian Law: Questions and Answers – ICRC>.

[58] “Occupation and International Humanitarian Law: Questions and Answers” 4-8-2004, International Committee of the Red Cross” <Occupation and international humanitarian law: questions and answers – ICRC>.

[59] “Occupation and International Humanitarian Law: Questions and Answers” 4-8-2004, International Committee of the Red Cross” <Occupation and international humanitarian law: questions and answers – ICRC>.

[60] Art. 39. Determination of threat to the peace, breach of the peace, or act of aggression: Before the Security Council can adopt enforcement measures, it has to determine the existence of any threat to the peace, breach of the peace or act of aggression. The range of situations which the Council determined as giving rise to threats to the peace includes country-specific situations such as inter- or intra-State conflicts or internal conflicts with a regional or sub-regional dimension. Furthermore, the Council identifies potential or generic threats as threats to international peace and security, such as terrorist acts, the proliferation of weapons of mass destruction or the proliferation and illicit trafficking of small arms and light weapons;

Art. 40 – Provisional measures to prevent aggravation of a situation:

The objective of measures under Art. 40 of the Charter is to “prevent an aggravation of the situation”. While not expressly enumerated in the United Nations Charter, the types of measures that could be typically assumed as falling under the provision of Art. 40, and which are distinct from recommendations made under Ch. VI of the Charter, include a withdrawal of armed forces, a cessation of hostilities, a conclusion or observance of a ceasefire or a creation of the conditions necessary for unimpeded delivery of humanitarian assistance.

[61] “Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression”  United Nations Security Council <Actions with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression | United Nations Security Council>.

[62] “Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression”  United Nations Security Council <Actions with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression | United Nations Security Council>.

[63] For Additional Discussion of UN Counterterrorism Reforms and Human Rights, see James Cockayne, Alistair Millar, David Cortright, and Peter Romaniuk, Reshaping United Nations Counterterrorism Efforts, Center on Global Counterterrorism Cooperation, March 2012, <HERE > (accessed 25-5-2012), p. 7-9.

[64] United Nations Security Council, Resolution 1456 (2003), S/RES/1456 (2003), <HERE > (accessed 25-5-2012), Annexure, para. 6.

[65] Security Council Counter-Terrorism Committee Web Page, “Protecting Human Rights while Countering Terrorism,” <HERE  (accessed 12-6-2012). See also Rosand, et al, “The UN Security Council’s Counterterrorism Program,” HERE >, p. 16

[66] Rosand, et al, “The UN Security Council’s Counterterrorism Program,” <HERE >, p. 16.

[67] UN Security Council, Resolution 1963 (2010), S/RES/1963 (2010), <HERE > (accessed 25-5-2012), para 10.

[68] UN Security Council, Resolution 1963 (2010), S/RES/1963 (2010), <HERE > (accessed 25-5-2012), para 10. The Security Council was reaffirming language used in the UN Global Counter-Terrorism Strategy of 2006, A/RES/60/288, <HERE > (accessed 28-6-2012), Plan of Action, Pillars I and IV.

[69] In December 2009, for example, it passed a resolution creating an ombudsman to mediate requests from individuals, organisation’s, and companies to be delisted and mandated swift processing of their applications. However, the ombudsman does not have the authority even to make recommendations to the listing committee, a body consisting of State representatives that reaches decisions confidentially. In 2011 the Security Council split the sanctions list into two, one for Al-Qaeda and one for the Taliban, and modified the regimens for each; The court challenges also prompted the EU in 2009 to adopt procedural and due process reforms to the implementation of the UN 1267 blacklist regime. See Council of the European Union Regulation 1286/2009, <HERE> (accessed 12-6-2012). For a detailed analysis, see Sullivan and Hayes, BlacklistedHERE, pp. 57-61.

[70] Martin Scheinin, Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, UN Doc. A/65/258 (2010), HERE  (accessed 25-5-2012), para 39.

[71] “Human rights/Counter terrorism: the new UN listing regimes for the Taliban and Al-Qaeda: Statement by the Special Rapporteur on Human Rights and Counter terrorism, Martin Scheinin,” UN Office of the High Commissioner for Human Rights news release, 29-6-2011, HERE  (accessed 25-5-2012)

[72] “International Human Rights Law”, 20-12-2019, US Citizenship and Immigration Services, Refugee, Asylum, and International Operations Directorate (Raio) <International_Human_Rights_Law_RAIO_Lesson_Plan.pdf (uscis.gov)>

[73] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (27-6-1987). <OHCHR | Convention against Torture>

[74] A “reciprocating territory” is defined in Explanation 1 to Section 44-A of India’s Civil Procedure Code as: “Any country or territory outside India which the Central Government may, by notification in the Official Gazette, declare as a reciprocating territory.”

[75] (2011) 4 SCC 36.

[76] “Constitutional Space and Legislative Development in India on Extra-Territorial Operation of Law, Dr. Dharmendra Singh, ILI Law Review, Summer Issue 2018. <dks.pdf (ili.ac.in)>

[77] 1989 Supp (2) SCC 642.

[78] 1946 SCC OnLine PC 33.

[79] 1989 Supp (2) SCC 642.

[80] 1989 Supp (2) SCC 642.

[81] 1989 Supp (2) SCC 642

[82] (2011) 4 SCC 36.

[83] 1989 Supp (2) SCC 642.

[84] 1989 Supp (2) SCC 642.

[85] 1989 Supp (2) SCC 642.

[86] 1989 Supp (2) SCC 642.

[87] 1989 Supp (2) SCC 642.

Case BriefsSupreme Court

Supreme Court: The Division Bench of K.M. Joseph* and Pamidighantam Sri Narasimha, JJ., held that mere writing the word “cancelled” or drawing a line would not render Power of Attorney null and void as there must be cancellation and it must further be brought to the notice of the third party at any rate.

Point of Discord

The plaintiff had entered into an oral agreement with the defendant 1 for Rs. 55000 for sale of property. Pursuant to which the plaintiff executed special Power of Attorney (POA) on 28-01-1997 in favour of defendant 2 for selling property for amount Rs. 55000. It was the case of the plaintiff that since the defendant 1 could not arrange money, the original POA was surrendered to him (plaintiff) on 02-02-1987 and it was cancelled on the same day.

The plaintiff alleged that defendant 2 applied for the copy of the power of attorney, and fraudulently executed the sale deed on 28-04-1987 for Rs. 30,000 without authority since POA was deemed to have been cancelled in the eye of law on being handed over him (plaintiff). Therefore, the plaintiff filed a suit for declaration by way of permanent injunction that he was the owner in possession of the property and the mutation showing the sale in favour of the defendant 1 was null and void.

Whereas, the defendant 2 contended that he never surrendered the original power of attorney prior to execution of sale and the sale was valid. Further, the defendant contended that the plaintiff received Rs.10,000 as part price and the remaining Rs.20,000 was paid at the time of registration.

Concurrent Findings of the Courts Below

The Trial Court did not accept the plaintiff’s case that the second defendant was not his power of attorney at the time of the sale. The Court held that cancellation also required registration and mere writing of a word ‘cancelled’ on the original power of attorney did not mean that the power of attorney had been cancelled, till notice was given to the second defendant. On the issue that the sale was not affected through original copy of POA, the Court held that as per Section 18A of the Registration Act, 1908, sale deed should accompany true copy of the power of attorney and the original was not required.

Relying on the rule that the agent could not act against the interest of the principal, the Trial Court concluded that the plaintiff was entitled to the rendition of the account from the defendant 2 and directed the defendant 2 to pay Rs.55000. The Findings of the Trial Court were affirmed by the First Appellate Court.

Impugned Decision of the High Court

The High Court opined that POA being cancelled on 02-02-1987, defendant 2 was not competent to execute the sale deed on 28-04-1987. Further, relying on Section 18 of the Registration Act, the High Court held that it was necessary for the Registering Authority to see the true copy of the special POA since in view of the cancellation of the original power of attorney, the same could not be relied upon by the Registering Authority for the purpose of execution of the sale deed. Hence, the High Court set aside the findings of the courts below and decreed the suit by declaring the plaintiff as the owner in possession of the land and the mutation showing the sale in favour of the First Defendantwas declared null and void.

Analysis and Findings

The Court analysed Section 18 of the Registration Act and concluded that the production of the certified copy of the power of attorney along with the original of the sale deed was fully justified as the section did not require production of original copy. Therefore, the claim of plaintiff that non-production of original PoA was fatal to valid registration was summarily rejected and the understanding of Section 18A by previous court was held erroneous. The Bench opined that the inquiry contemplated under the Registration Act, could not extend to question as to whether the person who executed the document in his capacity of the power of attorney was indeed having a valid power of attorney or not to execute the document or not as the document which was sought to be registered was sale deed and not the POA in question.

The Bench noticed that there was an agreement to sell in favour of the first defendant, the property was agreed to be sold for Rs.55,000 and the power of attorney was undoubtedly, registered. Further, on 02-06-1987, the plaintiff wrote to defendant 2 about proposed sale and the POA which showed his claim that the POA stood cancelled four months early on 02-02-1987. The Bench observed that the plaintiff admitted of not getting the POA cancelled at the Sub-Registrar Office, and even admitted not having sent any notice of cancellation neither to defendant 2 nor to defendant 1.

Hence, the Bench concluded that the High Court was not justified in disturbing the concurrent findings of courts below in a Second Appeal. The Bench held that for cancellation of a registered POA there must be cancellation and it must further be brought to the notice of the third party at any rate. Additionally, noticing that there was no expressed restriction on price in the POA, the Bench held that at best the defendant 2 could be held guilty of breach of duty to for acting against the interest of principal however, defendant 2 having sold the property for Rs.30,000 instead Rs.55,000 could not invalidate the sale or render it null and void. Accordingly, the impugned judgment was set aside.

[Amar Nath v. Gian Chand, 2022 SCC OnLine SC 102, decided on 28-01-2022]


Appearance by

For the Plaintiff: Pukhrambam Ramesh Kumar, Advocate

For Defendants: Ashutosh Dubey, Gurmeet Singh Makker and Arpana Bhatt, Advocates


Kamini Sharma, Editorial Assistant has put this report together


 

Experts CornerPramod Rao

Ravenclaw door-knocker: “Where do vanished objects go?”

Prof McGonnagall : “Into non-being, which is to say, everything.”

Harry Potter and the Deathly Hallows, J.K. Rowling, 2007

Background

Students of Indian history will be aware that one of the means which fuelled the rise of British paramountcy in India was the doctrine of lapse[1]. In terms of the doctrine, a princely State without a male heir (or competent heir) would be subsumed into the British Indian empire. The doctrine supplanted the long-established right of an Indian sovereign without an heir to choose a successor.

The principle of bona vacantia, escheat or lapse[2] works similarly: If an asset has no legal heir or claimants, then either the permanent ownership, or the temporary custodianship, of the asset is assumed by the State.

What can lead to an asset having no owner or being abandoned, or if the owner has passed away, with no legal heir or claimant?

As unlikely as it sounds, a possibility is that the individual forgot about the assets or it has been lost, or even mistakenly or wilfully abandoned. What is much more possible is that the individuals have passed on, and their legal heirs and successors are unaware about these assets and hence cannot make the claim. Hence such assets remain unclaimed over extended periods of time. Finally, the individual has passed on and did not have any legal heirs or successors.

What happens to such unclaimed assets? Do they vanish into non-being i.e. into everything? Do the rightful owners, heirs or claimants find or receive such assets eventually?

In this paper your columnist examines the Indian legal regime governing such unclaimed assets.

Indian Legal Position

The principle of bona vacantia or escheat or lapse was declared to be a part of the law in India by the Privy Council as early as in 1860[3]. The Privy Council also held that the general law having universal application is that “private ownership not existing, the State must be the owner as the ultimate Lord”.

Calcutta High Court separately observed (whilst noting the Privy Council judgment) as follows:

“Not that such a doctrine was unknown in India, for our ancient lawgiver Manu, for example, declared more than 2000 years ago thus in Manusawhita (Chapter DC, Verse 189):

Aharajyam Brahmanadravyam Rajna Nityamiti Sthiti, Itareshantu Varnanam Sarbabhave Harenripa.

This (verse), while negativing the king’s right to brahminical property even on failure of all heirs, affirmed the king’s title to all the properties belonging to persons of other classes dying leaving without any heir.”[4]

The principle thereafter finds a mention in the Indian Constitution. Article 296 specifies as follows:

  1. Property accruing by escheat or lapse or as bona vacantia.— Subject as hereinafter provided, any property in the territory of India which, if this Constitution had not come into operation, would have accrued to His Majesty or, as the case may be, to the ruler of an Indian State by escheat or lapse, or as bona vacantia for want of a rightful owner, shall, if it is property situate in a State, vest in such State, and shall, in any other case, vest in the Union:

Provided that any property which at the date when it would have so accrued to His Majesty or to the ruler of an Indian State was in the possession or under the control of the Government of India or the Government of a State shall, according as the purposes for which it was then used or held were purposes of the Union or a State, vest in the Union or in that State.

Explanation.— In the article, the expressions “ruler” and “Indian State” have the same meanings as in Article 363.

 

In essence, Article 296 makes it clear that the principles applicable to bona vacantia, escheat or lapse, prior to commencement of the Constitution of India, would continue. It also draws on the English law principles on escheat that the Crown is regarded as “the Lord paramount of the whole soil of the country”[5] which succeeds to the asset in absence of any legal heir[6]. The article also follows the federalist approach in terms that assets situated in a State that would have accrued to the State, shall vest in the State, and in any other case, shall vest in the Union.

Several States have laws governing bona vacantia, escheat or lapse[7]. Such laws, by and large, specify the official or the authority which have general superintendence of escheat assets, the manner of inquiry, giving of notice, taking of possession, disposal of claims or challenges, etc. In general, the vesting of such assets in the State is of permanent nature.

The assets that vest in the Union, while not specified, can be taken to follow the legal position prior to the Constitution coming into force, and also in terms of matters legislated pursuant to Article 246 (and List 1 and List 3 of the Seventh Schedule) of the Constitution.

Escheat also finds mention in the personal laws governing succession. Section 29 of the Hindu Succession Act, 1956 states:

  1. Failure of heirs.— If an intestate has left no heir qualified to succeed to his or her property in accordance with the provisions of this Act, such property shall devolve on the Government; and the Government shall take the property subject to all the obligations and liabilities to which an heir would have been subject.

Similarly, in Section 34 of the Succession Act, 1925[8], it states:

  1. Where intestate has left no widow, and where he has left no kindred.— Where the intestate has left no widow, his property shall go to his lineal descendants or to those who are of kindred to him, not being lineal descendants, according to the rules hereinafter contained; and, if he has left none who are of kindred to him, it shall go to the Government.

Courts have noted that Section 29 comes into operation only on there being a failure of heirs. Section 29 shall not operate in favour of the State if there is any other heir of the intestate. Failure means a total absence of any heir to the person dying intestate[9].

It is posited that “Government” as referred to in the above two statutes, would follow the constitutional mandate, and that the unclaimed assets vest in one or more State Governments and in the Union Government in terms of the relevant State legislations and Union legislations[10].

It is important to note that if there are legal heirs or a will has been made, then the principles of bona vacantia, escheat and lapse and the statutory framework dealing with the same have no applicability.

Furthermore, there are safeguards and essential conditions which have been specified, including proving absence of heir and of giving public notice for claimants to step forward.

The Supreme Court has noted that when a question of escheat arises,

  1. 20. … the onus rests heavily on the person who asserts the absence of an heir qualified to succeed to the estate of the individual who has died intestate to establish the case. The law does not readily accept such a consequence.

*           *          *

  1. The principle that the law does not readily accept a claim to escheat and that the onus rests heavily on the person who asserts that an individual has died intestate, leaving no legal heir, qualified to succeed to the property, is founded on a sound rationale. … This principle is based on the norm that in a society governed by the rule of law, the court will not presume that private titles are overridden in favour of the State, in the absence of a clear case being made out on the basis of a governing statutory provision[11].

It has been again reiterated[12]:

  1. It is well settled that when a claim of escheat is put forward by the Government the onus lies heavily on the appellant to prove the absence of any heir of the respondent anywhere in the world. Normally, the court frowns on the estate being taken by escheat unless the essential conditions for escheat are fully and completely satisfied. Further, before the plea of escheat can be entertained, there must be a public notice given by the Government so that if there is any claimant anywhere in the country or for that matter in the world, he may come forward to contest the claim of the State.

It is noted that heirs or claimants can be anywhere in the world, and hence heirs or claimants need not be within the territorial jurisdiction of India or of the relevant State. This also would enhance the burden on the State to establish having met the essential conditions.

The Supreme Court, also building on the rule of law, noted that:

  1. 25. To allow administrative authorities of the State — including the Collector, as in the present case — to adjudicate upon matters of title involving civil disputes would be destructive of the rule of law. The Collector is an officer of the State. He can exercise only such powers as the law specifically confers upon him to enter upon private disputes.[13]

Hence, it would be necessary to ensure that the courts of competent jurisdiction make the necessary determination on whether or not the State has adequately established that principles of bona vacantia, escheat and lapse can be applied and has followed all essential conditions.

Properties and Assets

The kind of properties and assets within the sweep of the principle of bona vacantia, escheat and lapse are examined in this section.

“Property” is a term of the widest import, and subject to any limitation or qualification which the context might require, it signifies every possible interest which a person can acquire, hold and enjoy[14].

Accordingly, the principles of bona vacantia, escheat and lapse have been applied to a variety of properties and assets. These have included:

(i) the property of a dissolved corporation[15];

(ii) the property of a company struck off by the Registrar for non-filing of statutory returns[16];

(iii) if a dissolved corporation had a subsisting interest in the lease on the date of dissolution, then such interest[17];

(iv) tenancy interest, howsoever limited[18];

(v) debts, being a species of property[19]; and

(vi) shebait of mandir[20].

The principles of bona vacantia, escheat and lapse have also been, inter alia, applied to the financial assets[21] such as dividends on shares, matured deposits with companies (other than banks), matured debentures with companies, redemption amount of preference shares and credit balances in any bank account and deposits.

 

Points to Ponder

Given the federal approach to applying principles of bona vacantia, escheat and lapse envisaged in the Constitution, a variety of State legislations, case law which have developed, the overall approach of the polity as well as the institutional underpinning appear to be underdeveloped, inconsistent and requiring review.

Certain points to consider in respect of applying the principles of bona vacantia, escheat and lapse, are:

  • Property or assets do not appear to have a uniform definition across the State legislations.
    • A model legislation, with clear definitions, could be considered and which the States use to align their current laws and legislations.

 

  • Lack of recognition or clarity in the State legislations of the fact that certain types of properties or assets would accrue to the Union Government or as per legislations made by the Parliament.
    • The model legislation could also specify the federal approach expected in Article 296 in clear manner.
    • The Parliament can also enact a legislation that enunciates the approach for Union Government to implement Article 296.

 

  • Lack of public notice to claimants or heirs on a nationwide and worldwide basis (as laid down by the Supreme Court), and limiting notice obligation to the locality where the property is situate.[22]
    • Giving of global or national level notice is necessary to be consistent with the Supreme Court decisions, generally accepted legal practice and societal expectations, and in ensuring due opportunity to legal heirs or claimants to make due claims. This could be vide an internet site or portal that hosts the notices and details of unclaimed assets.

 

  • Lack of consistency across different types of assets in respect of whether the unclaimed asset passed into permanent ownership, or into temporary custodianship, of the Government (State or Union).
    • Temporary custodianship, which terminates on handover of the asset to rightful claimants appears to be a much fairer approach to specify. This should be the approach adopted by the Governments; to these ends, extended period of time for the custody, undertaking measures for reaching out to rightful claimants or heirs as well as strong diligence on the claims received prior to handover would be desired.
    • Perishable unclaimed assets, or when costs of custody can exceed the cost of assets, the assets could be sold or disposed of, and the proceeds held for the rightful claimants.
    • Passage into permanent State ownership should be avoided.
      1. Ultimately, the State has fiscal powers – to tax, to levy duty, to levy fees – that underpin the revenues and expenditures of the Government. Acquiring assets purely by chance, and primarily due to lack of knowledge of the rightful claimant or heirs about the assets is a practice that deserves deprecation and being discouraged.
      2. Separately, tracing the evolution of bona vacantia, escheat and lapse also led us to its origins in systems of monarchy or feudalism and assertion of sovereign’s paramountcy. In a modern democracy and republic, such a concept of accrual of unclaimed assets to the sovereign should not survive.
      3. The aim of the State should be to preserve and protect the unclaimed assets (or if perishable or costly to keep in custody, dispose of the same and hold the proceeds), and identify and hand over to rightful claimants. Currently, the approach at least as seen in the State legislations is far more adversarial and acquisitive.

 

  • Absence of independent institutional framework for dealing with unclaimed assets. The States largely depend on and require the Collectors or district administration to deal with unclaimed assets. These authorities may both lack the bandwidth and also the expertise in handling unclaimed assets, or applying the approach outlined above.
    • Creation of an independent institutional focus, geared towards objectives as outlined above – preserving and protecting the unclaimed assets, identifying and handing over to rightful claimants – and doing so in a citizen-centric, claimant-friendly, methodical manner, which inspires confidence of the citizenry that right will be done by them (as heirs and claimants or for their own heirs and claimants). Such an institution can also become the administrative machinery for the assets of a company dissolved under the Companies Act or other similar such incorporated bodies (absence of which machinery had been noted way back in 1959).[23]

 

  • Determination of bona vacantia, escheat and lapse by the authorities comprising the executive branch of the State.
    • In keeping with the Supreme Court decision[24], whilst the executive can conduct inquiries and initiate a claim of bona vacantia, escheat and lapse, the determination that indeed the claim is sustainable should be by a court of competent jurisdiction.

 

Even as the above propositions, and further propositions (dealing with treasure troves, lost and found objects, abandoned assets, conduct of public auctions or, giving of notices and so on) could be embedded into a model legislation, and movement towards ensuring that the assets are in the hands of the rightful heirs or claimants of a deceased. In a world where the degrees of separation keep reducing, being able to trace and locate the heirs and claimants can prove far easier.

Concluding Remarks

The key takeaways for the readers should be:

(i) For your own assets and properties, ensure your chosen heirs are fully aware and informed about the same, (and how to claim or obtain the same on demise or becoming incapacitated).

(ii) Make due nominations – especially for financial assets and employee benefits, and wherever else possible.

(iii) Make a will. The principles of bona vacantia, escheat and lapse and the laws outlined apply when a person dies intestate – without a will.

 


Pramod Rao, Group General Counsel at ICICI Bank. Views are personal. Assisted in certain research by Dikshi Arora.

[1] See HERE, also noted in Prayas Buildcon (P) Ltd. v. State of U.P., (2021) 144 ALR 496 : “We may recollect, having gone through history, that prior to 1857, several estates were taken over by British Company i.e. East India Company by way of annexation. Doctrine of lapse applied in Jhansi was another kind of above-mentioned two principles.

[2] Distinctions between bona vacantia” and “escheat” or “lapse” may be exceedingly fine. Bona vacantia means “ownerless goods” or “vacant goods” and can connote abandoned, lost, mislaid or forgotten property, whilst escheat is when no legal heir to a deceased’s property exists: both however result in permanent ownership or temporary custodianship of the Government, and hence are often used interchangeably. Cited from: <HERE >.

[3] Collector v. Cavary Vancata Narrainappah, (1859-61) 8 Moo IA 500 at pp. 525.

[4] Biswanath Khan v. Prafulla Kumar Khan, 1988 SCC OnLine Cal 48 : AIR 1988 Cal 275

The judgment goes on to hold: Hindu law was to be administered in the case of succession to properties of a Hindu dying intestate, it was to be so administered only when he had any heir to succeed thus providing occasion for private succession. But on a total failure of all private heirs, the properties and the succession thereto ceased to be governed by any personal law of succession and, therefore, a case of a Hindu, whether a Brahmin or a non-Brahmin, dying leaving no heirs, was not to be governed by the Sastric Hindu law as enunciated by Manu, but was to be governed by the general law of universal application and that general law was that “private ownership not existing, the State must be the owner as the ultimate Lord. This right to acquire by way of escheat or as bona vacantia is not a creature of any private law of succession but is an attribute of sovereignty. It is true that statutory provisions of private law of Succession e.g. S. 29, Hindu Succession Act, 1956, sometimes expressly recognised right of the State to acquire properties by escheat or as bona vacantia. But that right would have been very much there even without any such provisions”.

[5] Halsbury’s Laws of England, 4th edn., Vol. 17, para 1439, as cited in State of Rajasthan v. Lord Northbrook, 2019 SCC OnLine SC 1117: In view of difference of opinions and the distinguishing judgments (R. Banumathi, J. allowed the appeal and Indira Banerjee, J. dismissed the appeal), the matter is to be placed before the Chief Justice of India for referring the matter to the larger Bench.

[6] Prior to the Constitution coming into force, following statutes can be traced: Statutes 16 and 17 Victoria, c. 95, S. 27, an Act to provide for the Government of India asserted that “all real and personal estate within the said territories escheating or lapsing for want of an heir or successor, and all property within the said territories devolving, as bona vacantia for want of a rightful owner, shall (as part of the revenues of India) belong to the East India Company in trust for Her Majesty for the service of the Government of India”. Thereafter, S. 54 of the Government of India Act, 1858, the existing provision was continued in force and was construed as referring to the Secretary of State in Council in place of East India Company. Thereafter, S. 20(3)(iii) of the Government of India Act, 1915, provided that the revenues of India received for His Majesty would include, “all movable or immovable property in British India escheating or lapsing for want of an heir or successor, and all property in British India devolving as bona vacantia for want of a rightful owner”. Finally, S. 174 of the Government of India Act, 1935 contained a provision similar to the text of Art. 296.

[7] Examples of State legislation’s can be seen:

Andhra Pradesh:<HERE >

Rajasthan:<HERE >

Kerala: <HERE > ,

Telangana: <HERE>,

Orissa: <HERE >,

West Bengal: <HERE >

In some States, the Land Revenue Code may contain the provisions on bona vacantia, escheat and lapse.

[8] This part of the Act does not apply to Parsi intestates; for Parsi intestates, see S. 56 of the Succession Act, 1925. Muslim personal law embeds the principle of escheat: the State is regarded as the ultimate heir of every deceased Muslim without any heir, see also: <HERE >. Such escheated land is also called nazul land: “Land or buildings in or near towns or villages, which have escheated to the Government; property escheated or lapsed to the State: commonly applied to any land or house property belonging to Government either as an escheat or as having belonged to a former Government.” (Narain Prasad Aggarwal v. State of M.P., (2007) 11 SCC 736.  It is such land which is owned and vested in the State on account of its capacity of sovereign, and application of right of bona vacantia, which is covered by the term “nazul”, as the term is known for the last more than one and half century. The nazul properties form the assets owned by the State in trust for the people in general who are entitled for its use in the most fair and beneficial manner for their benefit. See also: Prayas Buildcon (P) Ltd. v. State of U.P., (2021) 144 ALR 496 : “In Uttar Pradesh, management of ‘nazul properties’, in absence of statutory provisions, is governed by various administrative orders compiled in a manual called ‘nazul manual’. The Government has made provisions of management of ‘nazul’ through its own authorities, namely, District Magistrate or Commissioner, or, in some cases, through local bodies. In relation to nazul properties situated in Lucknow, the role of Lucknow Development Authority, Lucknow (LDA) is only to the extent of management and preservation thereof. LDA is not the owner of the nazul land/property, which vests only in the State Government. Governments have given nazul properties on lease to private persons/entities under the Government Grants Act, 1895.”

[9] State of Punjab v. Balwant Singh, 1992 Supp (3) SCC 108 : AIR 1991 SC 2301 : (1991) 1 SCR 458.

[10] That it can only be the State Government or the Union Government, and not a local authority or municipal authority can be noted from the text of Art. 296 and the decision in Ram Prasad v. Gram Panchayat, 1956 SCC OnLine Raj 106 : AIR 1957 Raj 43.

[11] Kutchi Lal Rameshwar Ashram Trust v. Collector, (2017) 16 SCC 418, 429, 430  and 432.

[12] State of Bihar v. Radha Krishna Singh, (1983) 3 SCC 118, 216.

[13]  Kutchi Lal Rameshwar Ashram Trust v. Collector, (2017) 16 SCC 418, 432.

[14] J.K. Trust v. CIT, AIR 1957 SC 846.

[15] Peirce Leslie and Co. Ltd. v. Violet Ouchferlong Wapshare, AIR 1969 SC 843 : (1969) 39 Comp Cas 808 : 1969 3 SCR 203. However, this seems to lack statutory provisions in support. See S. 352 of the Companies Act, 2013 (in pari materia to S. 555 of the Companies Act, 1956 or section 244B of the Companies Act, 1913) which deal with distribution of money to creditors or contributors and in specifying that the rightful claimant can receive back moneys after due process being followed (without the elapse of time having any adverse implication and hence an example of temporary custodianship by the Government); Noting this, Calcutta High Court observed in Rai Saheb U.N. Mandal’s Estate Ltd., In re, 1958 SCC OnLine Cal 137 : AIR 1959 Cal 493 : (1960) 30 Comp Cas 172 Cal : (1958-59) 63 CWN 889:  “If, therefore, without the express statutory provisions of Ss. 354 and 355 of the English Companies Act, 1948, the doctrine of bona vacantia applied in England, it would be all the more so herein India because of Art. 296 of the Constitution of India, which uses the words any property in the territory of India which if this Constitution had not come into force would have accrued to His Majesty. Now if this property of a dissolved company could accrue formerly to the Crown in India then as bona vacantia it now belongs to and vests in the Union of India under Article 296 of the present Constitution. Normally a defunct company would hardly have any assets or property, but there may in few cases be some, however negligible. I asked Mr Basu, who was the counsel appearing for the Registrar of Joint Stock Companies to find out whether on the point the office of the Registrar, had already any procedure, and I was told that there was none. Parliamentary legislation appears to be necessary to evolve an administrative machinery for the protection and disposal of the assets of a company, dissolved under S. 560 of the Companies Act, 1956. For unclaimed dividends and undistributed assets of companies in liquidation there is provision for their going to the public account of India in the Reserve Bank under S. 555 of the Companies Act. But there appears no comparable provision for assets of dissolved Companies under S. 560 of the Act.

[16] TEE-EM (P) Ltd. v. Tata Consultancy Services Ltd (though the company was finally restored on the register after due application to the court and its orders in such behalf.

[17] Narendra Bahadur Tandon v. Shankar Lal, (1980) 2 SCC 253.

[18] Biswanath Khan v. Prafulla Kumar Khan, 1988 SCC OnLine Cal 48 : AIR 1988 Cal 275.

[19]  Arvind Mills Ltd. v. State of Gujarat, 1965 SCC OnLine Guj 225, with also a finding that when the debtor is a resident of a State, the situs of the debt would also be within the State and if the debt becomes bona vacantia, it would vest in the State under Art. 296.

[20] From Tagore Law Lectures (1936) published in “Hindu Law of Religious and Charitable Trust”, Justice B.K. Mukherjee (former Chief Justice): “As there is always an ultimate reversion to the founder or his heirs, in case the line of shebaits is extinct, strictly speaking no question of escheat arises so far as the devolution of shebaitship is concerned. But cases may be imagined where the founder also has left no heirs, and in such cases the founder’s properties may escheat to the State together with the endowed property. In circumstances like these, the rights of the State would possibly be the same as those of the founder himself, and it would be for it to himself, and it would be for it to appoint a shebait for the debutter property. It cannot be said that the State receiving a dedicated property but escheat can put an end to the trust and treat it as secular property”, cited in Rambir Das v. Kalyan Das, (1997) 4 SCC 102.

[21] Your columnist will endeavour to examine the treatment of financial assets in a separate paper.

[22] Even if such notice is by “an announcement of the declaration to be made by beat of drum in the village in which the property is situated or lies”, (extract from S. 12 of Telangana Escheats and Bona Vacantia Act, 1974, accessible Here, while creates a vivid imagery and throwback to the days of the announcements made in the days of rajas and nawabs, it does not satisfy the Supreme Court dictum.

[23] Rai Saheb U.N. Mandal’s Estate Ltd., In re, 1958 SCC OnLine Cal 137 : (1960) 30 Comp Cas 172 Cal: AIR 1959 Cal 493 : (1958-59) 63 CWN 889, also see footnote 14 above.

[24]  Kutchi Lal Rameshwar Ashram Trust v. Collector, (2017) 16 SCC 418.

Case BriefsSupreme Court

Supreme Court of India: While deliberating on the instant appeals expressing grievance over the judgment of Andhra Pradesh HC (Amravati) wherein it had directed the authorities concerned to conduct a re-auction of the entire properties by fixing the upset price higher than what has been fixed earlier, the Division Bench of M.R. Shah* and B.V. Nagrathna, JJ., held that unless there is concrete material and it is established that there was any fraud and/or collusion or the land in question was sold at a throw away price, the sale pursuant to the public auction cannot be set aside at the instance of strangers to the auction proceeding.

Facts and Litigation Trajectory

As per the facts of the case, a proposal was published by the office of Commissioner, Endowments Department to auction the land in question belonging to Sri Markendaya and Omkareswara Swamy Devasthanam, Eluru, which was published in the newspaper on 10.03.1997. Notification to sell the subject land was published in the Andhra Pradesh Gazette on 22.05.1997. Nobody raised any objection against the said proposal. The probable expected price of the land was fixed at Rs. 4,00,000/- per acre and the total extent of land was about 1.81 acre. The Commissioner of Endowments Department granted permission to sell the land. The Executive Officer of the Temple Trust issued tender/public notice to sell the land in question by way of an open auction in the presence of the Deputy Commissioner, Endowments on 22.05.1998. Thereafter the auction took place on 24.06.1998 in which 45 people participated. The appellant herein was declared as the highest bidder.

One L. Kantha Rao, who did not participate in the auction held on 24.06.1998, filed a Writ Petition in 1999 before the High Court to direct the Executive Officer/ the Temple Committee not to execute the sale deed in respect of the auctioned land. The High Court granted interim stay of all further proceedings subject to the condition that he furnishes a bank guarantee of a sum of Rs.30 lakhs within two weeks from the date of the said interim order. During the pendency of the aforesaid writ petition the office of the Commissioner, Endowments Department unilaterally passed an order dated 10.02.1999 cancelling the auction held on 24.06.1998. The Executive Officer of the Temple was instructed to conduct a re-auction for the land in question keeping the upset price of Rs.30 lakhs. The matter reached the High Court and it observed that while Commissioner had revoked the order dated 10.02.1999, the revision filed against the same had become infructuous, however, liberty was granted to the said L. Kantha Rao to file a revision against the original order passed by the Commissioner.

Then on the basis of the liberty granted by the High Court, the said Shri L. Kantha Rao filed a revision before the Government challenging the order dated 22.12.1998 although he was not a participant in the auction in which appellant herein was declared the highest bidder. The said revision was allowed thereby quashing and setting aside the order dated 22.12.1998 and directing the Commissioner to refund the amount paid by the appellant and to conduct a re-auction of the land.

The appellant filed a writ in before the Single Judge bench of the HC who decided that Kantha Rao had not locus standi. He did not participate in the tender-cum-auction and when 45 persons participated in tender-cum-auction, nothing prevented him to participate in tender-cum- auction proceedings.

Mere depositing the money saying that the amount would fetch more is of no argument that can be looked into without establishing malafides or fraud played by the vendor or vendee”.

The Division Bench of the HC set aside the judgment and order passed by the learned Single Judge and directed the authorities concerned to conduct the re-auction of the entire land by fixing the upset price higher than what had been fixed earlier by observing that since more than twenty years had elapsed from the date of issuance of GO Rt. No. 1808 dated 26.11.1999 and price of the land in question had risen. The Division Bench also observed that the writ petitioner as well as the appellant shall also be allowed to participate in the re-auction, if they are otherwise eligible.

Contentions

Harin P. Raval, appearing on behalf of the appellant, contended that the Division Bench of the HC has committed a grave error in setting aside the 1998 auction and ordering a re-auction, as the decision was reached by an improper appreciation of the facts. he also contended that the auction sale was conducted after wide publicity in the well-known newspapers, so there was no illegality in conducting the auction, therefore, the Division Bench of the High Court ought not to have set aside such a sale after a period of approximately twenty years from the date of conducting the public auction and the sale that too at the instance of a person, who never participated in the auction. Since the respondent did not even participate in the 1998 auction, therefore he does not have any locus.

The Division Bench of the High Court did not properly appreciated the fact that the proceedings initiated by L. Kantha Rao were by way of  PIL and therefore after his death, his wife could not have continued the PIL proceedings by way of writ petition before the High Court as a private litigation.

The counsels for the respondents argued that the duty of the State is parens partriae in respect of the charitable endowments and to ensure its due protection, therefore the Government cannot act against the interest of the temple. Thus the re-auction was justified if in case of a trust, the consideration is inadequate. They argued that the court should always keep the larger interest of the public in mind while interfering with the decision of the authority. Further, the concept of locus standi has been widened by this Court while dealing with matters of public interest. It is the duty of the Court to see that the price fetched is adequate.

Observations

Upon perusing the facts and the rival contentions, the Court observed that the Division Bench of the HC failed to appreciate and consider the lack of bonafides of L. Kantha Rao. Noting that since Rao did not participate in the 1998 auction proceedings or made any offer, the Court stated that he should not have been permitted to to raise any objection subsequently on the valuation.

Once the appellant was found to be the highest bidder in a public auction in which 45 persons had participated and thereafter when the sale was confirmed in his favour and even the sale deed was executed, unless and until it was found that there was any material irregularity or illegality in holding the public auction and/or auction/sale was vitiated by any fraud or collusion, it is not open to set aside the auction or sale in favour of a highest bidder on the basis of some representations made by third parties, who did not even participate in the auction proceedings and did not make any offer”.

The Court further noted that Kantha Rao did not raise any objection at an appropriate stage or time, therefore is unlikely that he had any grievance vis-a-vis the auction. The Court also pointed out the failure of the Division Bench to not analyze the covert method applied by a fence sitter to nullify the auction proceedings via filing a PIL. The Court noted that the “subsequent lucrative offer” for the land was made simply to frustrate the auction proceedings with malafide intent-

if there was any error in the decision-making process adopted by the authority, the remedy available was to question the sale deed in an appropriate proceeding available under the law and not by filing a petition under Article 226 of the Constitution of India”.

Finally the Court observed that more than 23 years have passed since the auction and the sale, hence it is obvious that the value of the land won’t be the same as it was in 1998. Therefore the point of consideration is the “value of the property at the time when the sale was conducted”. The Court pointed out that the respondents could not point out with any material that price offered by the appellant in the year 1998 was not a fair value.

Conclusion

Based on the facts, the Court concluded that the auction was conducted and held in the year 1998 and was sold in favour of the appellant then on payment of the full sale consideration as per the highest bid offered by him. Therefore, the valuation as on the date of auction is the relevant consideration and not the value after so many years and over two decades after conducting the auction and confirming the sale.

The Court also set aside the impugned decision of the Division Bench and restored the decision rendered by the Single Judge Bench of the HC.

K. Kumara Gupta v. Sri Markandeya and Sri Omkareswara Swamy Temple and ors., 2022 SCC OnLine SC 196, decided on 18.02.2022


*Judgment by: Justice MR Shah


Sucheta Sarkar, Editorial Assistant has put this report together


Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: The Division bench of C.P. Kirtisinghe and Mayadunne Corea, JJ. (No claim to the property of the testator under Kandyan Law).

The Petitioner-Respondent had instituted testamentary action in the District Court of Avissawella to administer the estate of his deceased father Anhettigama Gamaralalage Punchimahattaya. The Petitioner was the only son of the deceased testator and the Petitioner had taken up the position that his sisters-1st to 9th Respondents were not entitled to the properties of his father as the sisters had entered into Deega marriages under the Kandyan Law. The sisters had taken up the position that their father the deceased testator was not a Kandyan and therefore, they were also entitled to the properties of the deceased testator. District Judge concluded that the deceased testator was governed by the Kandyan Law and so the properties of his estate will be governed by the same law. Appeal against the above finding was withdrawn and dismissed by this Court on 19-12-2022.

Respondent 10 requested to exclude Bopewatte from inventory. District Judge concluded that there was no reason to exclude it from the inventory as the contents of the deed showed that the deceased Testator owned soil rights and buildings in Bopagewatte.  Petitioner had not included the business in the name of “Asiri Stores” in the inventory.

The rights of Siriwardane which Respondent 10 had inherited would not be affected as they were not included into the inventory. The entirety of rights in ‘Hathepmewatte’ had not been included in the inventory. In any event, an undivided right of a third party will not get wiped out because of the fact that they were not excluded from the inventory. The purpose of this Testamentary action was to administer the estate of the deceased testator and this was not a case to decide the undivided rights of properties owned by him. District Judge had correctly observed that the Petitioner had not included that bakery to the inventory.

The Petitioner had included in the inventory the movables and goods for sale/stocks in the business premises in the name of Manoranjanee.

The Court was of the view that the District Judge had correctly concluded that Siriwardane was only an employee of the deceased testator and one cannot come to the conclusion that Siriwardane was doing the business on his own. Therefore, the 10th Respondent had no claim whatsoever to ask for the letters of administration. The District Judge was justified in granting the letters of administration to the Petitioner.

Court affirmed to the judgment of the District Judge dated 03-09-1999 and dismissed the Appeal of the 10th Respondent-Appellant with costs fixed at Rs 21,000/-. [Anhettigama GamaralalageDharmawardana v. Anhettigama Gamaralalage Mary Nona of Anhettigama , C.A No.: 748 of 99 F  decided on 08-02-2022]


S.A.D.S. Suraweera for the Substituted 10th Intervenient-Petitioner- Appellant

Harishka Samaranayake for the Petitioner-Respondent


Suchita Shukla, Editorial Assistant has reported this brief.

High Court Round UpLegal RoundUp

82 Judgments from the High Courts of the Country, you wouldn’t want to miss. Here’s a short recap from the month of January 2022.


Allahabad High Court


Strikes by Advocates

To condole demise of any member or anyone else, can Members of Bar obstruct functioning of Courts? All HC decides

J.J. Munir, J., expressed that,

The Members of the Bar are free to hold a meeting to condole the demise of any member or anyone else, but they do not have the right to obstruct the functioning of Courts.

Read full report here…

Motor Accident Claim 

Taking Rs 15,000 as notional income of a family member who is non-earning, in a motor accident claim: Is it reasonable? All HC decides

The Division Bench of Dr Kaushal Jayendra Thaker and Ajai Tyagi, JJ., enhances quantum of award of a non-earning member in a motor accident claim, while referring to the Supreme Court decision in Kurvan Ansari v. Shyam Kishore Murmu, 2021 SCC OnLine SC 1060.

Read full report here…

Settlement

Settlement terms decided by Mediation and Conciliation Centre, can be the reason for quashing of an FIR under S. 482 CrPC: All HC

Rajeev Singh, J., reiterated that under Section 482 of the Criminal Procedure Code, an FIR i.e. First Information Report can be quashed in view of the settlement terms.

Read full report here…

Maintenance

Can wife claim maintenance under S. 125 CrPC where appeal is pending against divorce granted under S. 13 HMA? All HC decides

When a divorce decree under Section 13 of the Hindu Marriage Act is passed the wife of such annulled marriage can claim maintenance under Section 25 of Hindu Marriage Act.

Read full report here…

Caste System

“…we boast ourselves as an educated society, but we live our lives with double standards”: Allahabad HC condemns prevailing caste system even after 75 years of independence

While expressing that “Caste system in our society is deeply rooted, we boast ourselves as educated society, but we live our lives with double standards” Rahul Chaturvedi, J., granted bail to an accused of cold-blooded murder in an alleged honour killing case. 

Read full report here…


Andhra Pradesh High Court


 LGBTQ+ community’s right to reservation; Can a transgender claim to be appointed by reservation in spite of failure to secure minimum cut off marks in screening test? HC answers

In a significant case wherein, a transgender had approached the Court seeking benefit of reservation for appointment in police department, M. Satyanarayana Murthy, J., denied to issue direction to the State in favour of the petitioner

Read full report here…


Bombay High Court


Feeding of Dogs

Feeding of Dogs inside complex v. Feeding of Dogs outside complex: Bom HC appoints amicus curiae to assist Court in resolving dispute

The Division Bench of S.J. Kathawalla and Milind N. Jadhav, JJ., addressed a matter in which a dispute revolved with regard to the feeding of dogs in the society complex.

Read full report here…

Elections for Sarpanch

Candidate contesting elections for Sarpanch post making “self-declaration” that he/she has “toilet” at their residence, is sufficient compliance under Maharashtra Village Panchayat Act? Bom HC examines

G.S. Kulkarni, J., considered the question,

Whether a “self-declaration” made by a candidate contesting elections to the post of Sarpanch, that he/she has a “toilet” in a house where he/she resides was sufficient compliance, to be not disqualified under Section 14(1) (j-5) of the Maharashtra Village Panchayat Act, 1959?

Read full report here…

Domestic Violence Act

Whether right to claim monetary reliefs, protection order and compensation under the D.V. Act, extinguish on death of “aggrieved person”? Bom HC explains

Sandeep K. Shinde, J., examines whether an application under Section 12 of the Domestic Violence Act on behalf of relatives of deceased seeking monetary relief, possession of ‘stridhan’ and compensation was maintainable or not.

Read full report here…

Employees Compensation Act

Can ‘minor’ who succumbed to an accident during course of employment be compensated under Employees Compensation Act or Insurance Company will be absolved of its liability? Bom HC explains

Workmen’s Compensation Act, 1923 does not prohibit payment of compensation to a minor.

Read full report here…

False Promise of Marriage

False promise of marriage to satisfy lust, leading to offence of cheating and rape?: Bom HC refuses to quash FIR for offences under Ss. 376, 417 IPC

The Division Bench of A.S. Chandurkar and G.A. Sanap, JJ.,  refused to exercise jurisdiction under Section 482 CrPC for quashing an FIR in offences of cheating and rape in the matter wherein the applicant/accused committed sexual intercourse with the girl against her will in the pretext of the false promise of marriage.

Read full report here…

Law on Section 498-A IPC

Can an alleged girlfriend be arrayed as an accused in a crime registered under S. 498-A IPC? Bom HC reiterates SC’s observation

The Division Bench of V.K. Jadhav and Shrikant D. Kulkarni, JJ., reiterated that an alleged girlfriend cannot be arrayed as accused in an offence registered under Section 498-A of Penal Code, 1860.

Read full report here…

Maintenance to Senior Citizen

Son ousted benighted widowed mother, deprived her right to “live a normal life” apart from maintaining and supporting her livelihood: Bom HC

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.

Read full report here…

Property

Can a girl be treated as property and given in donation? Bom HC addresses in light of “Daanpatra” executed by father of a daughter

“When the girl as per her own statement is minor, then why the father who is in all respect guardian of the girl should give the girl as Daan? A girl is not a property which can be given in donation.”

Read full report here…


 Calcutta High Court


 Compassionate Appointment

Daughter-in-law who obtains compassionate appointment by stating that she will take responsibility of her mother-in-law is bound by that undertaking: Cal HC

80-year-old widow approaches Court to seek direction towards her daughter-in-law to provide for her maintenance as she had taken compassionate appointment on the death of her son, Division Bench of Prakash Shrivastava, CJ and Rajarshi Bharadwaj, J., held that the daughter-in-law is bound by the undertaking by which she had obtained a compassionate appointment.

Read full report here…


 Delhi High Court


Termination of Pregnancy

Foetus with severe cardiac anomaly, but pregnancy beyond 24 weeks: Can a mother be permitted for termination of pregnancy? Del HC explains in light of ‘mental health’ of mother

“…entire medical regime would expose the child to intra and post-operative complications and may lead to further complexities, adversely impacting the quality of the child’s life.”

Read full report here…

Arbitration

Future Retail seeking to terminate arbitration proceedings with Amazon: Read Delhi HC’s decision on 4 significant points

Amit Bansal, J., noted that,

“…there is only a very small window for interference with orders passed by the Arbitral Tribunal while exercising jurisdiction under Article 227. The said window becomes even narrower where the orders passed by the Arbitral Tribunal are procedural in nature.”

Read full report here…

‘Stay’ on proceedings before Singapore Tribunal; Prima Facie case in favour of Future Group

The Division Bench of D.N. Patel, CJ and Jyoti Singh, J., stayed the arbitration proceeding in Amazon v. Future Group before the Singapore Tribunal.

Read full report here…

Arrest and Incarcerations

‘Arrest, incarceration destroys a person and affects innocent relatives’: Del HC sentences police officer to 1-day SI for contempt of court, breach of directions in Arnesh Kumar case

Najmi Waziri, J., observed that “Arrest and incarceration destroys a person and collaterally affects many other innocent relatives. Subsequent release or acquittal of an innocent, is of no solace and offers no reparation to the loss of reputation or for the temporary loss of precious personal liberty.”

Read full report here…

Divorce

“Overseas wife”, 11 years old marriage, husband visited wife for few days on yearly visits from Canada: A moribund marriage or not? Del HC decides

While addressing a matter of divorce proceedings, the Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., expressed that,

“…every marriage, where the couple stays apart from each other for work or other obligations consensually, is a broken one.”

Read full report here…

Bail

Delhi HC explains when a Court can seize liberty of an accused undertrial

Subramonium Prasad, J., while explaining the facets of cancellation of bail and rejection of an application for bail, made an observation that,

Personal liberty is one of the cherished constitutional freedoms. Once granted to an accused pending completion of the Trial, it must only be retracted in the face of grave and exacerbating circumstances.

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Can gravity of offence be the sole ground to deny bail? Del HC decides in a multi-person scam involving Rs 200 Crores

Subramonium Prasad, J., addressed whether the magnitude of offence can be the only criterion for granting bail and further explained the object of bail.

Read full report here… 

Compromise

Will Delhi HC allow waiving off alleged offence of rape in view of compromise and subsequent marriage between complainant and accused? Read to know

Stating that, Rape is an act against society, Rajnish Bhatnagar, J., held that simply entering into a compromise allegation of rape will not lose its gravity.

Read full report here…

Desertion

Wife refused to join company of husband on ground of ‘auspicious time’. Would this amount to ‘desertion’ by wife? Chh HC elucidates

The Division Bench of Goutam Bhaduri and Rajani Dubey, JJ., held that the wife refusing to join the company of her husband in view of waiting for auspicious time, would amount to desertion. 

Read full report here…

Disinvestment

Dr Subramanian Swamy’s plea that Air India’s Disinvestment is arbitrary, illegal, corrupt: 5-pointer report of Del HC decision

The Division Bench of D.N. Patel, CJ and Jyoti Singh, J., dismisses Dr Subramanian Swamy’s plea stating that any delay in the process of disinvestment of Air India would cause loss to public exchequer, besides creating uncertainty amongst the existing employees.

Read full report here…

Matrimonial Expenses

‘Unmarried daughter, even if earning, can’t be assumed to have sufficient resources to meet matrimonial expenses’: Del HC orders father to pay marriage expenses of daughters

 Father’s duty to maintain his unmarried daughters, including his duty to provide for their marriage is clearly recognized by the law.

Read full report here…

Sexual Assault

 Del HC upholds conviction for rape and penetrative sexual assault where ‘wife’ was below 18 yrs of age

Mukta Gupta, J., decided an appeal challenging the impugned decision whereby the appellant had been convicted for the impugned decision whereby he had been convicted for offences punishable under Section 376 of Penal Code, 1860 read with Section 4 of the POCSO Act and the order on sentence dated 15-1-2020 whereby the appellant had been directed to undergo rigorous imprisonment for a period of 10 years and a fine of Rs 10,000, in default whereof to undergo simple imprisonment for a period of six months. 

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False invocation of Ss. 354A, 506 IPC merely trivalises offence of sexual harassment casting doubt on veracity of allegations by victim who has in reality faced sexual harassment: Del HC

Subramonium Prasad, J., expressed its anguish at how provisions such as Sections 354A/506 of Penal Code, 1860 are falsely invoked at the drop of a hat to register one’s displeasure at the conduct of another individual.

Read full report here…

Trademark

Why is ‘Rooh Afza’ seeking injunction against ‘Dil Afza’? Here’s how Del HC stressed upon ‘deep emotion’ while deciding

Buying a bottle of sharbat may involve emotions, but not deep to the extent hoped for by the learned counsel for the plaintiffs. In any case, those who appreciate this deep emotion would be the first to be able to distinguish between ‘Rooh’ and ‘Dil’.

Read full report here…

Del HC restrains Courtyard Holidays World Private Limited from using registered trademark “COURTYARD”: Read a detailed report on trademark infringement case

Asha Menon, J., in a trademark infringement case, restrained the ‘Courtyard Holidays World Private Limited’ from using the impugned marks “COURTYARD”, “COURTYARD HOLIDAYS”, “COURTYARD HOLIDAYS WORLD”, and/or any other mark/logo or label and/or domain name which is identical or similar to the Plaintiff’s registered trademarks “COURTYARD”.

Read full report here…

Conviction

Son-in-law inflicts injury with axe on mother-in-law and wife, Challenges conviction under S. 307 IPC: Del HC revisits law while refusing to interfere

It is trite law that for conviction for an offence punishable under Section 307 IPC, it is not necessary that the victim should suffer an injury and, in a case, where the offence is committed with an intention to commit the murder of the victim, Section 307 IPC would be attracted as in the case of firing when no resultant injury is suffered by the victim.

Read full report here…

Faceless Assessment Scheme

Provision of Personal Hearing would defeat the purpose of Faceless Assessment Scheme? Del HC decides

The Division Bench of Manmohan and Navin Chawla, JJ., while focusing on the principles of natural justice and right to personal hearing observed that,

“Faceless Assessment Scheme does not mean no personal hearing.”

“An assessee has a vested right to personal hearing and the same has to be given, if an assessee asks for it.”

Read full report here…

Judicial Overreach

Photograph of summons sent through WhatsApp as an addition to ordinary process would amount to Judicial Overreach? Del HC decides

Amit Bansal, J., expressed that

Just because the photograph of the summons were sent by the plaintiff to the defendant through WhatsApp cannot amount to overreaching the judicial system or running a parallel system with the judicial system.

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Insurance Claim

Whether insurance company is liable to pay claim even if vehicle stolen and unauthorisedly driven? Del HC decides

…if the proposition of the insurance company was accepted, it would militate against the very concept of a beneficial legislation for the victims of an accident. If such a finding were to be returned then the effect would be that even though a vehicle is insured but is stolen, not only would the insurance company be entitled to avoid its liability but the owner of the vehicle who has insured his vehicle against theft and accident would be saddled with a liability for no fault of his.”

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Law on Rejection of Plaint

Contents of plaint or Examining sufficiency of plaint? Del HC explains the bounden duty of Court

Prateek Jalan, J., expressed that,

For the purposes of an order under Order VII Rule 11 of the CPC, the Court must come to the conclusion that the plaint is required to be rejected.

Read full report here…

Victims’ Rights | Fair Trial

Fair trial is the hallmark of criminal procedure, it entails not only rights of victims but also interest of accused: Delhi HC

“It is the duty of every Court to ensure that fair and proper opportunities are granted to the accused for just decision of the case.” 

Read full report here…

Maintenance

Court under maintenance proceedings under S. 125 of CrPC, can usurp jurisdiction of Civil Courts? Del HC decides

Chandra Dhari Singh, J., decided a maintenance case wherein the marital status of the parties was the crux of the matter and expressed that,

“…there is no straight jacket formula for judging the validity of the marriage between the parties.”

Read full report here…

Misconduct

Customer produced to prove the guilt of misconduct by Conductor of DTC Bus: Is it correct? Del HC answers while reiterating established position of law

Prathiba M. Singh, J., while examining a case which was dismissed 30 years ago with regard to a workman’s misconduct, reiterated the well-established law that, customers’ need not be produced in such proceedings in order to prove the misconduct of the workman.

Read full report here…


 Gujarat High Court


Conjugal Rights

Can a wife be forced to cohabit and establish conjugal rights? Or can a decree do so? Guj HC answers

A marriage between Mohammedans is a civil contract and a suit for restitution of conjugal rights is nothing more than an enforcement of the right to consortium under this contract.

Read full report here…

POCSO

Court goes beyond the relief sought, helps POCSO victim to become self-sufficient

The Division Bench of Sonia Gokani and N.V. Anjaria, JJ. went beyond the case to help a POCSO victim to continue her further studies from her parental home. Order was issued against a Criminal Misc. Application filed by the desirous victim pleading the Court to allow her to handover the custody of her minor daughter and join her parents. The applicant was called before the Court with her child before passing of the order.

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Senior Citizen Act

Senior Citizen Act cannot rescind Domestic Violence Act

“The law protecting the interest of senior citizens is intended to ensure that they are not left destitute, or at the mercy of their children or relatives. Equally, the purpose of the PWDV Act 2005 cannot be ignored by a sleight of statutory interpretation. Both sets of legislation have to be harmoniously construed.”

Read full report here…


Himachal Pradesh High Court


Internet Services

Petition filed highlighting the plight of residents of the State regarding internet services in view of virtual classes/courtrooms etc.; Elaborate suggestions laid down

A Division Bench of Tarlok Singh Chauhan and Chander Singh Barowalia JJ.  directed the respondents to comply with the directions given and report compliance on the next date of hearing.

Read full report here… 

Compassionate Appointment

Compassionate appointment is not a matter of right but subject to policy changes; appointment rightly rejected to son as mother is already employed with PWD

Read full report here…

Order 18 Rule 17-A CPC

Power under Or. 18 R. 17 CPC cannot be invoked to fill up omission in the evidence already led by a witness

“…basic purpose of Rule 17 is to enable the Court to clarify any position or doubt. While exercising power Under Order 18 Rule 17-A CPC, Court may, either suo motu or on the request of any party, recall any witness at any stage in this regard. No doubt, power can be exercised at any stage, once the Court recalls the witness for the purpose of any such clarification, the court may permit the parties to assist the court by examining the witness for the purpose of clarification required or permitted by the Court.”

Read full report here…


Jammu and Kashmir High Court


Dowry Death

Dowry Prohibition Act vis-a-vis J&K Dowry Restraint Act; HC blurs the line between the two

In a case alleging dowry death, Rajnesh Oswal, J., clarified the scope and applicability of Jammu and Kashmir Dowry Restraint Act 1960. Observing that the Trial Court had conducted mini trial at the stage of framing of charge, the Bench expressed,

“The trial court was considering issue with regard to framing of charge under section 304-B RPC but the trial court got swayed by the definition of dowry as defined under the Act of 1960 forgetting the legislative intent behind making the amendment, more when the definition was elastic even for the purpose of Act of 1960 by the use of expression “In this Act unless the context otherwise requires”.

Read full report here…


Jharkhand High Court


 Maintenance

What is the effective date of grant of maintenance? Is it the date of judgment or the date of filing of maintenance application?

Anubha Rawat Choudhary, J., held that right to claim maintenance must date back to the date of filing the application since the period during which the maintenance proceedings remained pending is not within the control of the applicant.

Read full report here…

Civil Services

Mistakenly entered wrong digit of Roll No. in OMR sheet? Can one seek to add obtained scores when the sheet is rejected by Scanning Machine? HC answers

 S.N. Pathak, J., rejected the petition filed by a civil services candidate, who was declared unsuccessful in prelims examination due to darkening wrong last digit of roll number in OMR sheet. The Bench stated,

“May be the petitioner has not intentionally darkened digit 6 instead of 8, but sympathy has no place in the eyes of law. The law will prevail in view of the terms and conditions as mentioned in the Advertisement, Admit Card and that of the Rules framed by the JPSC.”

Read full report here…


Kerala High Court


 CLAT PG-2021

Is confining Selection process of NTPC to CLAT PG-2021 candidates only prima facie discriminatory? HC to decide

V.G. Arun, J., held that the practice of confining selection process to CLAT PG-2021 candidates only for the post of Assistant Law Officer at NTPC was prima facie discriminatory. However, without expressing anything further on the matter the Bench had adjourned the matter for further hearing with the direction to the Central Government and NTPC to file a detailed counter affidavit in that regard.

Read full report here…

Guardian of Property

Guardian of Property v/s Guardian of Person of the minor; HC clarifies jurisdiction of District Court

The Division Bench of A. Muhamed Mustaque and Sophy Thomas held that the District Court cannot entertain petition to appoint guardian of the person of the minor child, however power to appoint guardian of the property of the minor is well within the jurisdiction of the District Court. The Bench clarified, the fact that a court cannot appoint a guardian of the person, is no bar for appointing a guardian of the property.

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Maintenance

Right to maintenance of child born out of inter-faith marriage: Is father under obligation to maintain his children even when there’s no statutory stipulation? HC answers 

In a significant case regarding Right to maintenance of child born out of inter-faith marriage, the Division Bench of Dr. Kausar Edappagath and A. Muhamed Mustaque JJ., held that the child being non sui juris, the State and the Courts as Parens Patriae are bound to protect it irrespective of law being silent in this regard. The Bench expressed,

“We see no reason to deny the children born to an inter-faith couple legal right to claim maintenance from their father for the reason that there is no specific statutory provision mandating such a father to maintain his children.” 

Read full report here…


Karnataka High Court


 Sale Deed

Will an ex post facto approval validate a sale deed where prior approval by State Government was a statutory prerequisite? HC answers

Read full report here…

Bail

Bail order not containing cogent reasons liable to be set aside for non-application of mind

The Court observed that The reasons assigned by the Trial Court is nothing but perverse and though elaborately discussed in the order, but the very approach in exercising the discretion under Section 439 of Cr.P.C. it is nothing but capricious order

Read full report here…

Social Classification

Persons with disability are a homogenous class irrespective of social classification; such classification can’t be impeached by linking it with Art. 16 or Art 15

“Persons claiming social reservation fall in one compartment and persons with disabilities who are included in the quota fall on a different distinct compartment so there arises no question of violation of Article 14 of the Constitution.”

Read full report here…

Motor Accident

“If relief is not moulded by awarding higher compensation, we will be failing in our duty”; Kar HC discussed compensation vis a vis permanent sexual disability in motor accident cases 

The Court observed that the Motor Vehicles Act, 1988, is a benevolent legislation and the duty is cast upon the Tribunal to award just and fair compensation to the victim of a Motor Vehicle Accident and thus taking into consideration the inflation and constantly depreciating purchasing power of the rupee, the court deemed deem it appropriate to enhance the compensation.

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 Madras High Court


 Right to Relax

Right to Relax in danger? Would installing CCTVs in spas and massage parlours infringe bodily autonomy of a person? Madras HC pens down its view

“Suspicion that immoral activities are taking place in massage centres cannot be reason enough to intrude into an individual’s right to relax for it intrinsically is part and parcel of his fundamental right to privacy.”

Read full report here…

License

Clubs allowing members to bring liquor purchased from outside, and drink without FL-2 license. Is it permissible? Madras HC examines, Issues directions 

“Any Association, Club or otherwise cannot go beyond the scope of its bye laws and the Competent Authorities under the Societies Registration Act are also empowered to initiate action for violation of the bye-laws.”

Read full report here 

Compensation

Rat-bite in hospital, compensation claimed: Madras HC relies on newspaper report since no rejoinder was given by Hospital

“….while examining a particular fact in the Writ Petition, strict rules of evidence do not apply but existence of a fact can be taken judicial note by surrounding circumstances…”

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Outrage the religious beliefs

Expressing opinion with regard to temple restoration, would amount to attract an offence under S. 295-A IPC? Report on Madras HC decision 

G.R. Swaminathan, J., quashed an FIR stating that S. 295-A IPC is attracted only if there is deliberate and malicious intent to outrage the religious beliefs of a particular class.

Read the full report here…

‘On Judgement Day, God shall admonish petitioner for committing un-Christian act’: Read whether Madras HC holds Catholic Priest prima facie accountable under S. 295A IPC for using ‘Bharat Mata’ and ‘Bhuma Devi’ in offensive manner

To uphold the sanctity of the Constitution and maintain public order, the strong arm of law will have to come down heavily on those who seek to disrupt communal peace and amity. 

Read full report here…

State Revenues

Cases involving large scale revenue unresolved for several years, leading to looting of nation’s properties: Read what Madras HC observes

There is a Grouping Section, which is functioning in the High Court. The said Section must be utilised for collecting large scale revenue involved cases now pending before the High Court for many years and the Registry must place all those cases before the Hon’ble the Chief Justice for speedy disposal.

Read full report here…

Conjugal Rights

Whether denial of conjugal rights to a prisoner amounts to violation of Art. 21 of the Constitution of India?  Madras HC answers in light of “extraordinary circumstances”

Expressing that, a convict cannot enjoy all the liberties as are available to a common person, otherwise there would no difference between a law-abiding citizen and a law-violating prisoner, the Division Bench of Munishwar Nath Bhandari, ACJ and Pushpa Sathyanarayana and P.D. Audikesavalu, JJ., held that,

The leave for a specific purpose which may be for undergoing infertility treatment, as such, may not be considered for having conjugal relationship in common parlance, but for extraordinary reason, thus we (High Court) can safely hold that the 1982 Rules itself protect the rights of the prisoner guaranteed under Article 21 of the Constitution of India to the extent it is required.

Read full report here…


 Madhya Pradesh High Court


 Arbitration

Dismissal of application under S. 34 of Arbitration and Conciliation Act of 1996 on ground of limitation will come within the purview of refusing to set aside an arbitration award 

Vishal Dhagat, J. expressed that, dismissal of application under Section 34 of Act of 1996 on ground of limitation will come within the purview of refusing to set aside an arbitration award, therefore, appeal under Section 37 will be maintainable if application under Section 34 is dismissed on ground of limitation. 

Read full report here…

Does Arbitral Tribunal have exclusive jurisdiction to settle disputes relating to “works contract” in State of Madhya Pradesh under the scheme of M.P Madhyastham Adhikaran Adhiniyam, 1983? MP HC explains

Bench expressed,

“…the Act of 1983 provides that whether the parties to a “works contract” incorporate an arbitration agreement or not, any dispute relating to “works contract” shall fall within the exclusive jurisdiction of the Tribunal.”

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Courts should emphasize on bridging the gap between the time period of reservation and delivery of the judgment

“It is the need of the hour to emphasize over the need to pronounce judgment expeditiously and curtailing the time gap between reserving of a case and pronouncing of judgment to the bare minimum, it is vivid that the Tribunal heard and reserved the original application preferred on 20.02.2019 whereafter the impugned judgment was pronounced by the Tribunal on 17.01.2020 i.e. after nearly 11 months, which is a very long period of time”

Read full report here…

State saddled with costs for colourable exercise of power reflecting favours; petition allowed

The Division Bench of Sheel Nagu and Purushaindra Kumar Kaurav, JJ. allowed petition filed under Article 226 of the Constitution filed by Smt Rampyari Patel and quashed impugned order dated 06-07-2021 passed by State Government.

Read full report here…

Disciplinary Proceedings

Delinquent employee in disciplinary proceedings has statutory right to engage a Defence Assistant

The Division Bench of Sheel Nagu and Purushaindra Kumar Kaurav, JJ. allowed the petition filed under Art 226 by an employee facing disciplinary proceedings.

Read full report here…

 Strike

It is duty and obligation of Courts to go on with matters or otherwise it would tantamount to becoming a privy to the strike; Court dismisses appeal

Sujoy Paul, J. dealt and dismissed a petition while highlighting the increasing issues of strikes and boycotts by the lawyers.

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Reservation

Difficult Areas vis-a-vis Difficult Services, Issues of reservation and incentive marks; HC puts an end to the battle between Doctors and State

 “If we hold that the Demonstrators and Tutors are eligible despite being posted in towns (not covered under difficult, rural or remote areas) as in-service candidates and petitioners are not, it will divide a homogeneous class of ‘in-service candidates’ and will create a class within the class without there being any rationale and justification for the same.”

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 Kazi

 Can a Kazi adjudicate disputes like a Court and pass an order like a decree? MP HC answers

“If a Kazi entertains a dispute and acts as a mediator to settle the dispute between the members of the community that would be permissible, but he cannot adjudicate the dispute like a court and pass an order like a decree.”

Read full report here…


Orissa High Court


Investigating Agency

Court can neither be a mute spectator to the whims and fancies of the investigating agency nor be a party to it; Ori HC observes in a case where final form was submitted after 15 years

The Court held that the inaction of the investigating agency to conclude the investigation for as long as 15 years, that too, without offering even a semblance of explanation is a direct affront to the cherished principle of right to speedy trial ingrained in the provisions of Article 21 of the Constitution of India.

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Public Interest

Retaining an employee in service if he lacks in the standard of efficiency required to discharge the duties of the post he presently holds is not in public interest

“The Court observed that the object of compulsory retirement is to weed out the dishonest, the corrupt and the deadwood. It is true that if an honest Judicial Officer is compulsorily retired it might lower the morale of his colleagues and other members in the service.”

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Punjab and Haryana High Court


 Live-in-relationship

Merely living together for few days is not live-in-relationship; HC imposes cost of Rs 25000 on runaway couple

In a case where a young couple who had started living in a hotel two days ago had approached the Court for protection, Manoj Bajaj, J., imposed a cost of Rs. 25000. The Bench expressed,

“Merely because the two adults are living together for few days, their claim of live-in-relationship based upon bald averment may not be enough to hold that they are truly in live-in-relationship.”

Read full report here…

Bail

Long custody is an essential factor for granting bail under UAPA; HC grants bail to woman lodged in jail along with her infant in connection with a Facebook post

Anupinder Singh Grewal, J., granted bail to the woman who was in custody along with her barely two years old infant in connection with alleged offence committed under UAPA. The main allegation against the petitioner was with regard to a Facebook post supporting banned organization ‘Sikhs for Justice 2020 Referendum’.

Read full report here…

Divorce

Are Recordings of Private Conversation between Husband and Wife permissible as evidence under S. 13 of HMA, 1955? HC decides 

Lisa Gill, J., held that to permit a spouse to record conversations with an unsuspecting partner and to produce the same in a court of law, to be made the basis of deciding a petition under Section 13 of the Act cannot be permitted.

Read full report here…

Investigation

P&H HC stresses upon adopting contemporary methods of investigation rather than taking third-degree shortcuts

Bench reiterated that,

“police faces a very uphill task in dealing with criminals, especially hardened criminals and the work done by the police force and any investigating agency is to be highly appreciated, in trying to apprehending criminals and actually apprehending them and bringing them to justice; yet, as per the constitutional scheme and the statutory provisions framed thereunder in India, not even the worst criminal can be denied a fair procedure in terms of the statutory provisions laid down in the Code of Criminal Procedure, 1973, and any such law in force.” 

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Rajasthan High Court


Mother tongue or English as a medium of instruction? Raj HC dealt with the issue when State decided to convert a Hindi medium school to English medium

“…the rights of the petitioners and the pupil of the school to have instructions in Hindi that are protected under Article 19(1)(a) of the Constitution of India and such rights can be diluted only by way of a legislation enacted in the contingencies mentioned in cause (2) of Article 19.”

Read full report here…

Police Protection

Courts are not meant to provide police protection to youths who have fled to marry according to their own wishes; Raj HC reiterated

The Court observed that in a deserving case, the Court can provide security to the couple, but cannot lend them the support they have sought. They have to learn to support each other and face the society. If any person misbehaves or manhandles them, the Courts and police authorities are there to come to their rescue, but they cannot claim security as a matter of course or right.

Read full report here…

Pecuniary Jurisdiction

Objection with regard to pecuniary jurisdiction shall be taken at the first instance at the earliest possible opportunity in accordance with S. 21 CPC

“no such objection was taken by the defendants at the earliest stage or not during the course of trial when it reached to its final stage. Now at the stage of final disposal, the application has been submitted which has been accepted by the learned court below by overlooking the mandatory provisions contained under Section 21 of the Code of Civil Procedure.” 

Read full report here…

Reverse Burden of Proof

Burden on the defence to prove the plea of insanity is only to the extent of establishing the same by preponderance of probabilities, need not be proved beyond all manner of doubt

Read full report here…


Telangana High Court


 Section 138 NI Act

A joint account holder cannot be prosecuted unless and until he/she is a signatory to subject cheque

“…Penal provisions should be construed strictly, but not in a routine/casual manner. The words used in Section 138 of N.I. Act  that “such person shall, be deemed to have committed an offence,, refers to a person who has drawn the cheque, but not any other person, except the contingencies mentioned under Section 141 of the N.I. Act.”

Read full report here…


Tripura High Court


Insurance Company

Compensation amount limited to amount claimed, Insurance Company’s liability reduced

S.G. Chattopadhyay, J. in the concerning matter to Parimal Das, held that the person claiming compensation should receive the amount not more than what he claimed. However, this doesn’t mean that the court is powerless to not award more compensation than the amount claimed.

Read full report here…

DNA Testing

Unless and until there is a challenge to the personal documents, direction cannot be given for DNA testing; Court dismisses appeal

Amarnath Goud, J., dealt with a petition wherein the case of the petitioner was that the respondent was not the son of the deceased Kshitish Ghosh and under the garb of certain Wills the respondent was selling the properties which were in dispute before the trial court. Petition further prayed to reconsider DNA testing approval which was dismissed earlier.

Read full report here…

Case BriefsHigh Courts

Rajasthan High Court: Anoop Kumar Dhand J. allowed the appeal and quashed the impugned order dated 17-08-2021 passed by the Court of Additional District and Sessions Judge No. 9, Jaipur Metropolitan-II, Jaipur.

The facts of the case are such that the disputed property was purchased by the plaintiff from one Balram vide agreement and the possession of the same was handed over to the plaintiff by said Balram. On 15-06-1996, allotment letter was also transferred in favour of the plaintiff by the defendant. Thereafter, boundary wall was constructed around the disputed property. When the father of the plaintiff visited the site on 03-02-2006, then he found that certain Land Mafias had broken the locks of the plot by trespassing upon it. When he asked them about the right, title of the property in question, then they started quarrelling with the father of the plaintiff. An FIR was also lodged in this regard and finally the instant suit has been filed for declaration, possession, damages, mandatory and permanent injunction with regard to the disputed property. Counsel for the petitioners submitted that after recording the evidence of both the sides on all the issues, the case was posted for final arguments and at that stage the learned court has no pecuniary jurisdiction to hear and decide the suit, hence, the suit is liable to be dismissed. It was further submitted that that 13 years have passed after filing of the suit and in case the impugned order is allowed to stand as it is then the plaintiff would be seriously prejudiced. Hence, the impugned order be quashed and set aside.

Counsel for the respondents submitted that the court has ample jurisdiction under Order 14 Rule 5 to frame any additional issue at any stage before disposal of the suit. So, rejection of the appeal was prayed. It was further submitted that from bare perusal of the contents of the plaint it was clear that the court has no pecuniary jurisdiction to hear and decide the suit. Hence, the court has rightly passed the impugned order. It was also submitted that the objection regarding the pecuniary jurisdiction can be taken at any stage even before the pronouncement of the judgment.

The Court stated “no such objection was taken by the defendants at the earliest stage or not during the course of trial when it reached to its final stage. Now at the stage of final disposal, the application has been submitted which has been accepted by the learned court below by overlooking the mandatory provisions contained under Section 21 of the Code of Civil Procedure.”

The Court observed that the suit was filed in the year 2008 and on bare perusal of the plaint, it is clear that the valuation of the suit was mentioned and the plea was also taken therein that the court below is competent to hear and decide the controversy in question on the basis of the valuation determined in the plaint by the plaintiff. and it is settled position of law as per Section 21 of the Code of Civil Procedure that the objection with regard to pecuniary jurisdiction shall be taken at the first instance at the earliest possible opportunity.

The Court held “the impugned order is not sustainable in the eye of law and the same is liable to be quashed and set aside.”

[Meeta Agarwal v. Hathroigiri, S.B. Civil Miscellaneous Appeal No. 1566/2021, decided on 04-01-2022 ]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

For Appellant(s) : Mr. Behari Lal Agarwal and Mr. Akash Gupta

For Respondent(s) : Mr. Bajrang Lal Choudhary

Case BriefsHigh Courts

Bombay High Court: Vibha Kankanwadi, J., while directing Child Welfare Committee, Jalna to hold an inquiry on an expeditious basis in respect of a girl and to find out whether she was a fit person to be declared as a child in need of care and protection as the father of the girl child had executed “Daanpatra” to give the daughter in a donation to a Baba.

Applicants were arrested for the offences punishable under Sections 376, 376(D), 341, 323 of Penal Code, 1860 and under Sections 4, 6, 8 and 12 of the Protection of Children from Sexual Offences Act (POCSO).

The victim informant who was stated to be 17 years old girl, stated that she resided with her father who was a devotee in Mahadev Temple. The applicant stopped the victim while she was proceeding on a scooter owned by one Baba near her house. After outraging her modesty, the applicants ravished her and after that, she was allowed to go.

It was stated that the Baba and his disciples used to consume Ganja, Bhaang and slowly they started collecting youth from the village for such activities. In March 2021 a Gramsabha was organized and it was decided that said Baba and other disciples along with the victim should be asked to leave the temple premises. Even the Gram Panchayat asked the Baba and others to leave.

As per the medical opinion, there were absolutely no signs on the body of the girl which would indicate that the act was forcible.

In the FIR, though the victim–informant had given her age and the date of birth, the investigating officer had not collected any documentary proof.

High Court stated that noting the investigation was over, a charge-sheet was also filed. The Court opined that, the present case would be a fit case to release the applicants on bail, however with stringent conditions.

The Bench noted that a fact which came on record was disturbing as a document styled as ‘Danpatra’ on stamp paper of Rs 100 was executed between the father of the girl and the Baba, as per which the father had given his daughter in a donation to the Baba and the said Kanyadaan was made in the presence of the god.

When the girl as per her own statement is minor, then why the father who is in all respect guardian of the girl should give the girl as Daan? A girl is not a property which can be given in donation.

 In view of the above fact, respondent 2 was asked to file an affidavit about the incident.

Interestingly, the name of the person to whom the daughter was given in adoption was the same as that of the person who had filed the affidavit i.e. affiant. The Advocate for respondent 2 had not even taken care while drafting the affidavit that it should be in the proper name. The affiant, therefore, further stated that the proper adoption deed had not been executed and the adoption process will be followed. He said that the girl was residing with him as of today.

Bench expressed that it was concerned with the future of the minor girl in view of such document coming forward, can’t shut eyes.

In Court’s opinion, the present case is fit where the directions need to be given to the Child Welfare Committee, Jalna to hold an inquiry on an expeditious basis in respect of the girl and to find out whether she was fit person to be declared as a child in need of care and protection.

At the cost of repetition, it can be said that in view of the actions taken by the father of the girl in executing “Danpatra”, this Court is required to interfere. This is in view of the future of the girl and she should not be driven to do any illegal activities.

 Therefore, bail application was allowed. [Shankeshwar v. State of Maharashtra, 2022 SCC OnLine Bom 171, decided on 3-1-2022]


Advocates before the Court:

Mr S. S. Thombre, Advocate for the applicant in BA/1366/2021. Mr P. P. More, Advocate for the applicant in BA/1345/2021.

Mr N. T. Bhagat, APP for the respondent – State in both matters. Ms Shital E. Waghmare, Advocate for respondent No.2 in both matters.