Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.V. Gangapurwala and Shrikant D. Kulkarni, JJ., expressed that,

In a welfare State, statutory authorities are bound, not only to pay adequate compensation, but there is also a legal obligation upon them to rehabilitate such persons. The non-fulfilment of their obligations would tantamount to forcing the said uprooted persons to become vagabonds or to indulge in anti-national activities as such sentiments would be born in them on account of such ill-treatment.

Factual Matrix

Petitioners owned agricultural lands adjacent to a National Highway and on the said lands, they had their residential houses, wells, fruit trees, bore-well, etc. which were also adjacent to National Highway.

The said road came to be converted into State Highway without payment of any compensation while expansion of the same.

It has been submitted that, respondents are trying to take forcible possession of the lands of the petitioners and respondent authorities cautioned the petitioners to use police force while taking possession. Though petitioners made it clear that they are not opposing the road widening in question but the authority should acquire their respective lands for up-gradation of the roads as per the due procedure of law.

The said up-gradation is being done in phase wise manner and petitioners are concerned with the phase of Dhangar Pimpri to Wadigodri for which the authorities are attempting to take the forceful possession of their lands under the pretext of resolution regarding adjacent lands of road which need not require acquisition.

Further, it was added that the action initiated by the respondent-authorities thereby taking forcible possession of the lands belonging to the petitioners for road widening by showing the Government Resolution was contrary to the provision of Article 300-A of the Constitution of India.

Respondent authorities stand was that they are expending the road on the existing road of 30 meters. They are upgrading the same and there is no need to acquire the lands of the adjacent land holders as they won’t be affected by the same.

Analysis, Law and Decision

Width of the road – 12 or 30 metres?

As per standards, the width of the State Highway should be 30 meters. The road in question was a District Road. As per standard width of the District Road is 12 meters. By way of notification dated 19th April, 1967, the road in question was declared as State Highway in the year 1967. The question comes when District Road came to be declared as State Highway. How the width of the road is enhanced to 30 meters. Was there any acquisition of lands of adjacent land owners by way of proceedings under the old Land Acquisition Act of 1894? No record is forthcoming from both sides in order to clear the position.

Bench stated that merely, producing maps of certain villages and copies of road development plans, may not be helpful to arrive at a conclusion and record finding to that effect as the said would be an erroneous exercise. Further, it was noted by the Bench that at some places the width of the road of 30 meters and at some, it was less than 30 meters.

The right to property ceased to be a fundamental right by the Constitution (Forty Fourth Amendment) Act, 1978, however, it continued to be a human right in a welfare State, and a constitutional right under Article 300 A of the Constitution.

Article 300 A provides that no person shall be deprived of his property save by authority of law.

 Is there an obligation to pay compensation under Article 300 A?

High Court remarked that obligation to pay compensation, though may not expressly included in Article 300 A, can be inferred from that Article. To forcibly dispossess a person of his private property without following due process of law is certainly violative of human right and so also, constitutional right provided under Article 300 A of the Constitution.

Elaborating more, High Court held that depriving persons of their immovable properties, was a clear violation of Article 21 of the Constitution.

It is not permissible for any welfare State to uproot a person and deprive him of his fundamental/constitutional/human rights, under the garb of industrial development.

In view of the present facts of the case, High Court expressed that, respondents are the State authorities and Central authorities constructing National Highway. They are expected to be model litigants and are expected to respect the rights of petitioners and follow due procedure of law when property is likely to be acquired.

In a society governed by rule of law, there should not be arbitrariness in any decision.

In the instant case, there was no conclusive proof to establish the width of road to be 30 meters and no question of acquiring lands of petitioners.

Hence, there should be a joint measurement of road in presence of the petitioners and respondents under the supervision of District Collector, Jalna and if the width of the road at respective villages is found to be 30 meters, there shall not any question of acquisition of adjacent lands of the petitioners and if otherwise, then Centre and State shall follow due process of law in acquiring the same. [Bhagauji v. State of Maharashtra, 2021 SCC OnLine Bom 982, decided on 3-07-2021]


About the Bench:

JUSTICE SANJAY VIJAYKUMAR GANGAPURWALA

He was born on 24-05-1962.

Stood third in the order of merit in LL.B. examination. Started practice in the year 1985 and joined Chambers of advocate Shri S.N.Loya. Practiced in trial Court, High Court and Debt Recovery Tribunal. Was an advocate for Financial Institutions such as Central Bank of India, Bombay Mercantile Cooperative Bank, Jalgaon Janata Sahakari Bank, many Corporate bodies and Dr.Babasaheb Ambedkar Marathwada University. Also represented Government before Justice Mane Commission. Had privilege to be the advocate of the Hon’ble the Chief Justice of the Bombay High Court.

Extracurricular activities: Is a keen sportsman played lawn tennis at National level. Represented Dr. Babasaheb Ambedkar Marthwada University six times and captained it twice in All India University Tournament. Played Basketball at State level. He was the Honourary part-time lecturer in M.P.Law College since 1991 till date of elevation as Additional Judge of the Bombay High Court on 13-3-2010.

JUSTICE SHRIKANT DATTATRAY KULKARNI

Graduated in Commerce (Hons.) from G.A. College of Commerce, Sangli. Completed LL.B. in the year 1984 from N.S. Law College, Sangli. Did LL.M. from Bharti Vidyapeeth, Pune and Diploma in Cyber Law (D.I.C.L.) from Government Law College, Mumbai and enrolled as an Advocate with Bar Council of Maharashtra & Goa in the year 1985.

Practiced at various places in Sangli District and joined judiciary in the year 1990. Promoted as Addl.District Judge in the year 2002.

Worked as Registrar (Personnel) and Registrar (Judicial) at Principal seat Bombay from 2013 to 2015. Appointed as Principal District & Sessions Judge, Ahmednagar and worked from the year 2015 to 13th July 2017.

Worked as Member Secretary, Maharashtra State Legal Services Authority from 14th July 2017 to 13th January 2020.

Elevated as Judge of Bombay High Court on 14th January 2020.


SOURCE: Bombay High Court Website

Case BriefsSupreme Court

Supreme Court: The 3-judge Bench comprising of Sanjay Kishan Kaul*, Dinesh Maheshwari and Hrishikesh Roy, JJ., has set aside the impugned order of High Court of judicature at Madhya Pradesh, whereby the High Court had upheld taking over of possession and eviction under MP Land Revenue Code, 1959.

Factual Background

The predecessors of the appellant was bhumiswami of agricultural dry land measuring 64.438 acres situated in Village Bagadua, MP, which was in excess of the ceiling limit prescribed as per S. 7(b) of MP Ceiling on Agricultural Holdings Act, 1960, whereby the prescribed limit was set at 54 acres. Therefore, the competent authority had initiated the process to acquire the surplus land. In furtherance of the aforesaid, the State had initiated the process of taking over possession and eviction under Section 248 of the MP Land Revenue Code, 1959.  The appellant, being aggrieved filed a suit for declaration of title and permanent injunction before the Trial Court.  The appellant contended that the proceedings were illegal as he was actually left with only 54 acres of land which was within the prescribed ceiling limit in view of the fact that the land measuring 17 bighas and 7 biswa had been decreed in favour of one Jenobai, who was in possession by cultivation for about 20 years.

The Trial Court had held that the appellant was the original bhumiswami and the suit with Jenobai was collusive as she was the mother-in-law of the appellant and the endeavour was to prevent the surplus land from being acquired by the State. The appellant filed an appeal before First Appellate Court , which was allowed and the judgment of the trial court was set aside on the ground that the competent authority had failed to comply with the statutory provisions under Section 11(3) and 11(4) of the said Act. However, the said judgment was set aside by the High Court noticing that no information was stated to have been provided to the competent authority giving particulars of the suit of Jenobai. The competent authority was held not to be at fault in the alleged breach of Sections 11(3) and 11(4) of the Act, 1960 as the information germane for the same had not been disclosed.

Observation and Analysis

 Whether the requirement of S. 9 of the Act, 1960 had been fulfilled?

To decide this issue the Court had directed both the parties to submit certain records before it, however, the State had failed to comply with the same. Therefore, it was held that failure to place the aforementioned documents on record showed that there had been proper disclosure about the suit in the return filed under Section 9.  The fact that the respondent had pleaded the suit in question to be collusive was also considered to be a proof that the particulars of the pending civil suit filed by the mother-in-law of the appellant claiming part of the land held by the appellant were submitted before the respondent.

 Whether obtaining of possession was according to the procedure established by law?

According to Section 11(3) of the Act, 1960 the draft statement had to be published and served on the holder and “all other persons interested in the land to which it relates.” Once a disclosure was there that Jenobai had filed a suit, there had to be mandatorily a notice to her, as otherwise any decision would be behind her back and would, thus, violate the principles of natural justice. The Bench observed the proviso to 11(4), which clarified that, in case the competent authority finds that any question has arisen regarding the title of a particular holder, which is already pending for decision before the competent court, the competent authority shall await the decision of the court. Hence, the Court held that proceedings should have been kept in abeyance to await the verdict in the suit and notice should have been issued to Jenobai.  The Bench expressed,

“Right to property is still a constitutional right under Article 300A of the Constitution of India though not a fundamental right. The deprivation of the right can only be in accordance with the procedure established by law.”

 The law in this case was the said Act. Thus, the provisions of the said Act had to be complied with to deprive a person of the land being surplus. It was further stated that, once a disclosure was made, the matter had to be dealt with under sub-section (4) of Section 11 of the said Act and in view of the pending suit proceedings between the appellant and Jenobai, the proviso came into play which required the respondent authorities to await the decision of the court. Sub-section 5 and thereafter sub-section 6 would kick in only after the mandate of subsection 4 was fulfilled.

Though there may be a process provided for redressal under the scheme of the Act, it is this very scheme of the Act which has been breached by the respondents herein in not complying with the statutory provisions.

Whether Jurisdiction of Civil Court is barred?

 Regarding the issue of jurisdiction of civil court the Bench analysed Section 46 of the Act, 1960, which reads as under:

46. Bar of jurisdiction of Civil Courts. – Save as expressly provided in this Act, no Civil Court shall have any jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the competent authority.”

Noticing that Section 46 begins with a saving clause qua the bar of civil court – “Save as expressly provided in this Act…..” the Bench held that, provisions of Section 46 were expressly subjected to the provisions of Section 11(5). Reliance was placed on   Competent Authority, Tarana District, Ujjain (M.P.) v. Vijay Gupta, 1991 Supp (2) SCC 631, by the Bench, wherein, while deciding the question of jurisdiction of Civil Court, the Court had expressed,

“So far as the other question regarding the maintainability of the suit in a civil court is concerned, suffice to say that sub-section (5) of Section 11 of the Act itself provides that any party may within three months from the date of any order passed by the Competent Authority under sub-section (4) of Section 11 of the Act institute a suit in the civil court to have the order set aside. Thus the above provision itself permits the filing of a suit in a civil court and any decision of such court has been made binding on the Competent Authority under the above provision of sub-section (5) of Section 11 of the Act. It is not in dispute that the suit in the present case was filed within three months as provided under sub-section (5) of Section 11 of the Act. In the result, we do not find any force in this appeal and it is accordingly dismissed with no order as to costs.”

Decision

Considering the above mentioned, the Bench held that when there was no surplus land there could be no question of any proceedings for take over of the surplus land under the said Act. Hence, the impugned order was set and the order of the first appellate court was restored. [Bajranga v. State of Madhya Pradesh,  2021 SCC OnLine SC 27, decided on 19-01-2021]


*Justice Sanjay Kishan Kaul has penned this judgment


Kamini Sharma, Editorial Assistant has put this story together

Case BriefsHigh Courts

Madras High Court: N. Seshasayee, J., said that if the allegations made in the present petition were true then it exposes the callousness with which District Authorities deal with citizens’ right to property.

In the instant matter, it has been stated that some 16 years back, on 30-12-2004, a 4(1) notification was issued under the provisions of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 for acquiring the lands of the petitioners.

The above was challenged by the petitioners. Court had provided legal advice to the State Government/authorities concerned to go for fresh acquisition following the due process of law.  Till date, nothing has been done.

Further, it was added that the petitioner has been running from pillar to post to have their properties re-mutated in their names.

After no relief, petitioners approached the Court with the instant petition.

Bench expressed that, if the allegations were true then it only displays the apathy with which the Authorities deal with the right to property of the citizens of this country. They need to be told that right to property has a close nexus to right to life within the meaning of Article 21 of the Constitution of India.

By the inaction, the authorities had denied the right to these citizens at least for 10 years, and to that extent, they have transgressed the quality of life of the citizens of this country within the meaning of Article 21 of the Constitution of India.

D. Raja, Additional Government Pleader took notice for the respondent. He was directed to make a statement as to the correctness of the allegations made. The matter was posted for 11 -1-2021.

[Report will be updated when further order is available.]

[Jayalakshmi v. State of T.N., WP No. 181 of 2021, decided on 08-01-2021]

Case BriefsHigh Courts

Jharkhand High Court: Rajesh Shankar, J., quashing the impugned letter, held, “The respondent 5 being an administrative/revenue Officer is supposed to know the basic law and he can not be permitted to act without jurisdiction so as to infringe the right to property of the petitioners in an arbitrary fashion.”

Background

The factual background of the case as stated in the writ petition is that the petitioners purchased the said land by virtue of three separate sale deeds and they came in peaceful possession of their respective land. Thereafter, they decided to construct a residential apartment over the same, however, some miscreants started threatening and making demand of ransom from them. Two individuals filed a petition under Section 144 Code of Criminal Procedure, 1973, before the Sub Divisional Officer, Sadar Ranchi, which was registered as Case No. M-2073 of 2019, and, thereafter, the petitioners were restrained by the respondents 5 and 6 from initiating construction work. Ultimately, the Sub-Divisional Officer, Sadar, Ranchi dismissed the aforesaid case vide order dated 22-01-2020. The petitioners then filed a representation dated 31-05-2020 requesting the respondent 6 to maintain law and order situation as the petitioners were apprehending interference of local goons once the construction work was started. However, when the petitioners started construction work in the month of May, 2020, the husband of the petitioner 2 was attacked and threatened by local goons and an amount of 10 lac was demanded as ransom from him which was duly reported to the police, resultantly an FIR was registered. The respondent 5 vide letter no.37/(ii) dated 08-06-2020 directed the respondent no.6 to take steps for stopping the construction work taking place over the said land, as Original Suit No.18 of 2020 was pending in the court of Civil Judge Senior Division-I, Ranchi. The said letter was subsequently handed over to the petitioners by the respondent no.6. Thereafter, the respondent no.6 issued notice dated 09-06-2020 to the petitioners, directing them to stop construction work over the said land till the disposal of the aforesaid suit in the light of the direction issued by the respondent 5 vide letter no.37/(ii) dated 08-06-2020. The present petition is moved to question the authority of the said notices and further for setting aside the same.

Contentions

Counsel for the petitioner, Amritansh Vats, referred to a catena of judgments by the Supreme Court, to emphasize that Right to Property is a Constitutional Right under Article 300-A of the Constitution and the Respondent authority does not possess any power or jurisdiction to arbitrarily restrain the petitioners from enjoying such right. Reliance was placed on;

  • Hari Krishna Mandir Trust v. State of Maharashtra, 2020 SCC OnLine SC 631, In this case, the Supreme Court held that the right to property may not be a fundamental right any longer but it is still a constitutional right under Article 300-A as well as a human right and no person can be deprived of his property save by the authority of law. The High Courts exercising their jurisdiction under Article 226 of the Constitution of India, not only have the power to issue a Writ of Mandamus or in nature thereof, but are duty-bound to exercise such power where the government or public authority has failed to exercise or has wrongly exercised discretion conferred upon it by a Statute, or a rule, or a policy decision of the government or has exercised such discretion with malafide, or on irrelevant consideration.
  • M.C. Mehta v. Union of India, 2020 SCC OnLine SC 648, With respect to the enforceability of Article 300-A, the Court observed, “The law in this behalf is explicit. Right of a person to construct residential houses in the residential area is a valuable right. The said right can only be regulated in terms of a regulatory statute but unless there exists a clear provision the same cannot be taken away.”
  • State of Rajasthan v. Basant Nahata, (2005) 12 SCC 77, In the present case, the Court categorically held, “In absence of any substantive provision contained in a parliamentary or legislative enactment, a person cannot be refrained from dealing with his property in any manner he likes. Such statutory interdict would be opposed to one’s right to property as envisaged under Article 300-A of the Constitution.”
  • State of U.P. v. Manohar, (2005) 2 SCC 126, Supreme Court remarked, in the words,
    “Para 7. Ours is a constitutional democracy and the rights available to the citizens are declared by the Constitution. Although Article 19(1)(f) was deleted by the Forty-fourth Amendment to the Constitution, Article 300-A has been placed in the Constitution, which reads as follows:
    300-A. Persons not to be deprived of property save by authority of law.—No person shall be deprived of his property save by authority of law.
    Para 8. This is a case where we find utter lack of legal authority for deprivation of the respondent’s property by the appellants who are State authorities. In our view, this case was an eminently fit one for exercising the writ jurisdiction of the High Court under Article 226 of the Constitution. In our view, the High Court was somewhat liberal in not imposing exemplary costs on the appellants. We would have perhaps followed suit, but for the intransigence displayed before us.”
  • Delhi Airtech Services v. State of U.P., (2011) 9 SCC 354, A synonymity was drawn between the word ‘law’ as used under Article 21 and under Article 300-A by the Supreme Court, stating, “ Para 83. The expression law which figures both in Article 21 and Article 300-A must be given the same meaning. In both cases, the law would mean a validly enacted law. In order to be valid law it must be just, fair and reasonable having regard to the requirement of Articles 14 and 21 as explained in Maneka Gandhi, (1978) 1 SCC 248. This is especially so, as “law” in both the Articles 21 and 300-A is meant to prevent deprivation of rights. Insofar as Article 21 is concerned, it is a fundamental right whereas in Article 300-A it is a constitutional right which has been given a status of a basic human right.”

Observation

With respect to the alleged arbitrary exercise of power by the Administrative/Revenue Officer “If a suit is filed in any civil court, it is the court concerned which may grant an injunction on an application of the aggrieved person, if it is established that there exists a prima facie case, balance of convenience lies in his favour and if such order is not passed, he would suffer irreparable loss and injury. It is a settled law that mere filing of a suit does not entitle the plaintiff to presume an order of status quo unless the court by a specific order grants the same having taken into consideration the facts, applicable law and judicial pronouncement. The Circle officer has no power or jurisdiction to grant status quo on the mere filing of a civil suit. The respondent 5 being an administrative/revenue Officer is supposed to know the basic law and he can not be permitted to act without jurisdiction so as to infringe the right to property of the petitioners in an arbitrary fashion.”

Decision

Allowing the present petition, the Court quashed the impugned letter no. 37(ii) dated 08-06-2020 issued by the Circle Officer, as well as the letter dated 09-06-2020 issued by the Police Inspector cum officer in charge of the Kanke Police Station, Ranchi.[Sandip Khanna v. State of Jharkhand, 2020 SCC OnLine Jhar 1020, decided on 14-12-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: In a case where the Union of India was sitting over certain lands since 33 years without any authority, the bench of Indira Banerjee and S. Ravindra Bhat*, JJ directed the Union of India to hand back possession of the suit lands to the appellants, within three months.

“33 years (based upon cessation of the Union’s legal possession) is a long enough time, even in India, to be kept away from one’s property.”


Background of the Case


  • Requisitioning and Acquisition of Immovable properties Act, 1952 was brought into force on 15.03.1952 with the object to enable the Union to requisition or acquire immovable property if the competent authority was of the opinion that any property was necessary for a public purpose. By Section 1(3), the Requisitioning Act was to be in force for six years. Section 3 clothed the Union with the power to requisition properties for any public purpose; Section 7 provided the procedure to requisition (or acquire) lands. It also spelt-out the condition precedents for exercise of the power. Section 8 provided for compensation with regard to property. Section 8(2) laid out the principles applicable for determination of compensation for the property as a recurring one.
  • On 27.02.1958, the Requisitioning Act was amended and the period of its operation extended. In the meanwhile, the Defence of India Act, 1962 (DIA) was enacted by Parliament empowering the Central Government with powers akin to those enacted under the Requisitioning Act.
  • The Union invoked its powers under the DIA and requisitioned the three described properties which belonged to the predecessor of the appellants in 1963.
  • By Act 48 of 1963, Section 1(3) of the Requisitioning Act was amended, and the period of operation of the Requisitioning Act was extended till 14.03.1970. In the meanwhile, the DIA lapsed with effect from 10.01.1968. The Requisitioning Act was amended, incorporating Section 25, which enacted that the immovable property requisitioned under the DIA, which had not been released as on 10.01.1968 was deemed to have been requisitioned under the Requisition Act. It also continued the status quo with respect to determination of compensation completed under the DIA.
  • The Union’s occupation ceased to be lawful, with the lapse of the Requisitioning Act, in 1987.
  • Union asserted that it had acquired at least some parts of the suit lands; these were examined by the High Court on two occasions, and in arbitration proceedings under the Requisitioning Act, on three occasions. The High Court, while noticing that the Union’s claim had no merits (in both its appeal, which was dismissed, as well as in the impugned judgment, disposing of the writ petition), nevertheless refused to issue any direction for the release of the suit lands. The rationale given was that the adjoining areas had been acquired and were used by the Union for defense purposes. The impugned judgment granted indefinite time to the Union to take steps to acquire the suit lands. The Union has not chosen to do so these last 12 years.

Analysis


Legal effect of requisitioning immovable property

Temporarily- i.e. for the period the requisition order is in operation, the owner loses her possessory rights, even though the title remains undisturbed. Since the deprivation of possession is through authority of law, in keeping with fair procedure, the law provides for payment of compensation in accordance with predetermined principles.

“Yet, the taking of property by definition is finite: it cannot result in expropriation or deprivation of title altogether, unless another process for acquiring it, is initiated.”

Right to Property

Stating that it is not open to the state: in any of its forms (executive, state agencies, or legislature) to claim that the law – or the constitution can be ignored, or complied at its convenience, the Court noticed that although the right to property is not a fundamental right protected under Part III of the Constitution of India, it remains a valuable constitutional right. Though its pre-eminence as a fundamental right has been undermined, nevertheless, the essence of the rule of law protects it.

“The phrasing of Article 300-A is determinative and its resemblance with Articles 21 and 265 cannot be overlooked- they in effect, are a guarantee of the supremacy of the rule of law, no less. To permit the state: whether the Union or any state government to assert that it has an indefinite or overriding right to continue occupying one’s property (bereft of lawful sanction)– whatever be the pretext, is no less than condoning lawlessness.”

It was further stated that any condonation by the court is a validation of such unlawful executive behavior which it then can justify its conduct on the anvil of some loftier purpose, at any future time- aptly described as a “loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”

Discussion on facts

Union’s assertion that it had acquired at least some parts of the suit lands was examined by the High Court on two occasions, and in arbitration proceedings under the Requisitioning Act, on three occasions. Each time, the factual findings went against the Union.

“The Union’s occupation ceased to be lawful, with the lapse of the Requisitioning Act, in 1987. Yet, it has implacably refused to hand back possession, each time asserting that it has some manner of rights over it. These facts paint a stark, even sordid picture.”

The Court, hence, held that the impugned judgment of the Karnataka High Court committed an error in refusing relief to the appellants.

Directions

  • The Union of India is directed to hand back possession of the suit lands to the appellants, within three months.
  • It is open to the appellants to seek compensation based on fresh fixation of capital value and recurring annual value, based on the different five- year periods for the last 20 years. Such a claim shall be referred to arbitration, within four weeks of receipt of the reference. The arbitrator shall proceed to pronounce the award within six months of receipt of the reference. This is independent of the Union’s obligation to vacate and hand over peaceful possession of the suit lands within three months.
  • The appellants shall be paid costs, quantified at ₹ 75,000/-.

[BK Ravichandra v. Union of India, 2020 SCC OnLine SC 950, decided on 24.11.2020]


*Justice S. Ravindra Bhat has penned this judgment

For Appellant: Senior Advocate Mohan Parasaran

For Respondent: Additional Solicitor General K.M. Natraj

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Arun Mishra, SA Nazeer and MR Shah, JJ has held that daughters have right in coparcenary by birth and that it is not necessary that the father coparcener should be living when the Hindu Succession (Amendment) Act, 2005 came into force.

The conferral of right is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth.”

BACKGROUND OF THE CASE

The Court was dealing with a reference relating to the interpretation of section 6 of the Hindu Succession Act, 1956 as amended by Hindu Succession (Amendment) Act, 2005 in view of the conflicting verdicts rendered in two Division Bench judgments in Prakash v. Phulavati, (2016) 2 SCC 36 and Danamma v. Amar, (2018) 3 SCC 343.

Prakash v. Phulvati ruling

section 6 is not retrospective in operation, and it applies when both coparceners and his daughter were alive on the date of commencement of Amendment Act, 9.9.2005. The provision contained in the Explanation to section 6(5) provides for the requirement of partition for substituted section 6 is to be a registered one or by a decree of a court, can have no application to a statutory notional partition on the opening of succession as provided in the unamended Section 6. The notional statutory partition is deemed to have taken place to ascertain the share of the deceased coparcener which is not covered either under the proviso to section 6(1) or section 6(5), including its Explanation. The registration requirement is inapplicable to partition of property by operation of law, which has to be given full effect.

Danamma v. Amar Ruling

The amended provisions of section 6 confer full rights upon the daughter coparcener. Any   coparcener, including a daughter, can claim a partition in the coparcenary property. The father, in the said case, died in the year 2001, leaving behind two daughters, two sons, and a widow. Coparcener’s father was not alive when the substituted provision of section 6 came into force. The daughters, sons and the widow were given 1/5th share apiece.

DETAILED EXPLANATION OF LAW IN REFERENCE

On the law on Coparcenary and Joint Hindu Family

Coparcenary property is the one which is inherited by a Hindu from his father, grandfather, or great grandfather. Property inherited from others is held in his rights and cannot be treated as forming part of the coparcenary. The property in coparcenary is held as joint owners. Coparcener heirs get right by birth. Another method to be a coparcener is by way of adoption.

“As earlier, a woman could not be a coparcener, but she could still be a joint family member. By substituted section 6 with effect from 9.9.2005 daughters are recognised as coparceners in their rights, by birth in the family like a son. Coparcenary is the creation of law. Only a coparcener has a right to demand partition. Test is if a person can demand a partition, he is a coparcener not otherwise.”

On unobstructed and obstructed heritage

Unobstructed heritage takes place by birth, and the obstructed heritage takes place after the death of the owner. It is significant to note that under section 6 by birth, right is given that is called unobstructed heritage. It is not the obstructed heritage depending upon the owner’s death.Thus, coparcener father need not be alive on 9.9.2005, date of substitution of provisions of Section 6.

On effect of death of father before the Amendment Act, 2005 came into force

Rejecting the argument that if the father or any other coparcener died before the Amendment Act, 2005, the interest of the father or other coparcener would have already merged in the surviving coparcenary, and there was no coparcener alive from whom the daughter would succeed. It said,

“It is not by the death of the father or other coparcener that rights accrue. It is by the factum of birth. It is only when a female of Class I heir is left, or in case of her death, male relative is left, the share of the deceased coparcener is fixed to be distributed by a deemed partition, in the event of an actual partition, as and when it takes place as per the proviso to unamended section 6.”

On possibility of uncertainty if daughter is given the right to be a coparcener by birth

The Court also rejected the contention that if the daughter is given the right to be a coparcener by birth and deemed to become a coparcener at any point in the past, in the normal working of the law, uncertainty would be caused.

It said that no uncertainty is brought about by the provisions of section 6 as the law of Mitakshara coparcenary makes the share of surviving coparceners uncertain till actual partition takes place. Uncertainty in the right of share in a Mitakshara coparcenary is inhered in its underlying principles, and there is no question of upturning it when the daughter is treated like a son and is given the right by birth; to be exercised from a particular date, i.e., 9.9.2005.

“There is no doubt about it that advancement brings about the enlargement of the size of the coparcenary and disabling it from treating the daughter unequally. Even otherwise, its size could be enlarged by the birth of a son also.”

By applying section 8, the joint possession was not repudiated by the fact that a female, whether a wife or daughter, inherited the share of coparcener under the proviso to original section 6. She was an equal member of the joint Hindu family and deemed statutory partition did not bring disruption of the coparcenary.

KEY TAKEAWAYS

  • The provisions of section 6 have been held to be prospective. The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.
  • The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.
  • Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.
  • The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class­I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.
  • In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted.  A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.

[Vineeta Sharma v. Rakesh Sharma, 2020 SCC OnLine SC 641, decided on 11.08.2020]


SCC Online is now on Telegram and Instagram. Join our channel @scconline on Telegram and @scconline_ on Instagram and stay updated with the latest legal news from within and outside India

Case BriefsSupreme Court

Supreme Court: The bench of Indira Banjerjee and Indu Malhotra, JJ that the Courts are duty bound to issue a writ of Mandamus for enforcement of a public duty.

“The High Courts exercising their jurisdiction under Article 226 of the Constitution of India, not only have the power to issue a Writ of Mandamus or in the nature of Mandamus, but are duty bound to exercise such power, where the Government or a public authority has failed to exercise or has wrongly exercised discretion conferred upon it by a Statute, or a rule, or a policy decision of the Government or has exercised such discretion malafide, or on irrelevant consideration.”

The Court was hearing the case pertaining to a private road in Pune being declared as being owned by Pune Municipal Corporation whilst in the property records, there was no private road.  In 1970, by an order of the Pune Municipal Corporation, a Plot was divided into 4 plots and a private road admeasuring 414.14 square meters. Read more

“There is no whisper as to how the road came to be shown as in possession of Pune Municipal Commissioner nor of the procedure adopted for effecting changes, if any, in the property records.”

Considering the issue at hand, the Court noticed in case of dispossession except under the authority of law, the owner might obtain restoration of possession by a proceeding for Mandamus against the Government. It said that in all such cases, the High Court must issue a Writ of Mandamus and give directions to compel performance in an appropriate and lawful manner of the discretion conferred upon the Government or a public authority.”

“In appropriate cases, in order to prevent injustice to the parties, the Court may itself pass an order or give directions which the government or the public authorities should have passed, had it properly and lawfully exercised its discretion.”

Stating that the Court is duty bound to issue a writ of Mandamus for enforcement of a public duty, the bench said that there can be no doubt that an important requisite for issue of Mandamus is that Mandamus lies to enforce a legal duty. This duty must be shown to exist towards the applicant.

“A statutory duty must exist before it can be enforced through Mandamus. Unless a statutory duty or right can be read in the provision, Mandamus cannot be issued to enforce the same.”

It further said that High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner’s right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles.

[Hari Krishna Mandir Trust v. State of Maharashtra,  2020 SCC OnLine SC 631, decided on 07.08.2020]


SCC Online is now on Telegram and Instagram. Join our channel @scconline on Telegram and @scconline_ on Instagram and stay updated with the latest legal news from within and outside India

Case BriefsSupreme Court

Supreme court: The 2-judge bench of Indira Banerjee and Indu Malhotra, JJ has held that Section 88 of Maharashtra Regional and Town Planning Act, 1966 cannot be read in isolation from the other provisions of the Act, particularly Sections 65, 66, 125 and 126 thereof. It further, said,

“however laudable be the purpose, the Executive cannot deprive a person of his property without specific legal authority, which can be established in a court of law.”

On whether Section 88 of Maharashtra Regional and Town Planning Act, 1966 can be read in isolation

Section 125 read with Section 126 enables the state/Planning authority to acquire land. Section 65 read with Section 66, on the other hand, protect the interests of the owners. Considering all the relevant provisions, the Court held that on a proper construction of Section 88, when land is acquired for the purposes of a Development Scheme, the same vests in the State free from encumbrances. No third party can claim any right of easement to the land, or claim any right as an occupier, licensee, tenant, lessee, mortgagee or under any sale agreement. However,

“Section 88 of the Regional and Town Planning Act cannot be read in isolation. It has to be read with Section 125 to 129 relating to compulsory acquisition as also Section 59, 69 and 65.”

On Right to property vis-à-vis Doctrine of Eminent Domain

Article 300A of the Constitution of India embodies the doctrine of eminent domain which comprises two parts,

  • possession of property in the public interest; and
  • payment of reasonable compensation.

Noticing that the right to property may not be a fundamental right any longer, but it is still a constitutional right under Article 300A and a human right, the Court said that the right to property includes any proprietary interest hereditary interest in the right of management of a religion endowment, as well as anything acquired by inheritance. However laudable be the purpose, the Executive cannot deprive a person of his property without specific legal authority, which can be established in a court of law.

“In case of dispossession except under the authority of law, the owner might obtain restoration of possession by a proceeding for Mandamus against the Government.”

Factual background and Ruling

The Court was hearing the case pertaining to a private road in Pune being declared as being owned by Pune Municipal Corporation whilst in the property records, there was no private road.  In 1970, by an order of the Pune Municipal Corporation, a Plot was divided into 4 plots and a private road admeasuring 414.14 square meters.

On perusal of the documents, the Court noticed that there can be no doubt at all that the road in question measuring 444.14 sqm. never belonged to the Pune Municipal Corporation. In the property records, there was no private road. The Municipal Corporation was never shown as owner of the vacant plot or of any private road. Even assuming that there was any policy decision to have an approach road to every plot, it was incumbent upon the authorities concerned to acquire the land.

“There is no whisper as to how the road came to be shown as in possession of Pune Municipal Commissioner nor of the procedure adopted for effecting changes, if any, in the property records.”

The Court, hence, held that the Pune Municipal Corporation had a public duty under Section 91 to appropriately modify the scheme and to show the private road as property of its legitimate owners, as per the property records in existence, and or in the award of the Arbitrator.

It, hence, directed the Municipal Corporation to

“delete the name of the Pune Municipal Corporation as owner of the private road in the records pertaining to the Scheme and carry out such other consequential alterations as may be necessary under Section 91 of the Maharashtra Regional and Town Planning Act, 1966.”

[Hari Krishna Mandir Trust v. State of Maharashtra,  2020 SCC OnLine SC 631, decided on 07.08.2020]


SCC Online is now on Telegram and Instagram. Join our channel @scconline on Telegram and @scconline_ on Instagram and stay updated with the latest legal news from within and outside India

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Manmohan and Sanjeev Narula, JJ., addressed a Public Interest Litigation, filed seeking direction to respondents to mandate that travellers of Delhi Metro Rail should provide proof of their identities and addresses while purchasing Metro cards from Delhi Metro Rail Corporation.

Petitioners stated that linking of metro card and token with address proof of travellers would protect the right to property in the event metro card or token is lost.

Further, in the wake of ongoing COVID-19 pandemic, it is of utmost importance that the respondents should be aware about the details of the passengers travelling by Delhi Metro as it would help in preventing a patient from travelling and would also help in tracing the affected travellers in case a patient had unwillingly travelled in Delhi Metro.

Bench disposed the petition stating that petitioner may filed representation with respondent 3 to seek relief. [Rohit Mahawar v. Union of India, 2020 SCC OnLine Del 581 , decided on 08-05-2020]

Case BriefsHigh Courts

Karnataka High Court: The Bench of Krishna S. Dixit, J., allowed petition filed by a senior citizen challenging wrongful usurpation of his property.

Respondent herein had unauthorizedly appropriated petitioner’s land measuring 63,162 square feet without any acquisition process, for the formation of roads, parks. Petitioner was given no compensation for his land even after 16 years of acquisition. Aggrieved thereby, he filed the instant petition seeking restoration of his land and compensation of Rs 5 crores for illegal utilization of his land.

Petitioner’s contention was that respondent’s act was a gross violation of his constitutional right to property guaranteed under Article 300-A of the Constitution of India.

The Court took note of respondent’s resolution proposing to give 50 percent of the site area to petitioner and observed that instead of taking steps for implementation thereof, respondent passed another resolution stating that in view of one government order, petitioner would be granted 50 percent of the developed area, which was unconscionable. The second resolution was also not given effect.

It was opined that the institution of private property is the focal point of constitutional jurisprudence. Forcible or non-consensual taking away of property by the State or its instrumentalities, sans lawful acquisition process offends the pith and substance of Article 300-A which guarantees protection to private property from State interference. It was held that State and its instrumentalities cannot justify usurpation of private property without legal process on the ground that the same was for public use.

In view of the above, the respondent was directed to give ownership and possession of the developed area of subject land to the petitioner and pay Rs 1 lakh as damages.[P.G. Beliappa v. Bangalore Development Authority, 2019 SCC OnLine Kar 187, Order dated 01-03-2019]

Case BriefsHigh Courts

Chhattisgarh High Court: Recently, High Court was hearing a petition from two brothers who were owners of a land which they wanted to sell to one person and for the same, had approached the Arpa Special Area Development Tribunal seeking No Objection Certificate, but denied by the authority for the reason that the said lands have been included in planning area and are required for construction of road under PPP project. The petitioners had approached the High Court under Article 226 challenging the rejection.

The petitioners contended that the right to property is a constitutional right under Article 300-A of the Constitution of India and there is no law prohibiting such transfer by the petitioners and respondent by its executive instruction cannot restrict the petitioners’ right to transfer their immovable property.

The Bench of Sanjay K Agrawal, J. observed that the town development scheme had not been notified under S. 50 (7) of the Chhattisgarh Nagar Tatha Gram Nivesh Adhiniyam 1973 and therefore, no restriction could be made to the owner’s right to transfer the land under S. 53 of Chhattisgarh Nagar Tatha Gram Nivesh Adhiniyam, 1973.

The Court after utmost circumspection of the records observed that right to property is a human right as well as a constitutional right referring to Indian Handcrafts Emporium v. Union of India, (2003) 7 SCC 589. Thus, it held that the right to acquire, hold and dispose of the property has ceased to be a fundamental right under the Constitution of India, but it continues to be a legal or constitutional right that no person can be deprived of his property save and except by and in accordance with law and further explained that the word “law” under Article 300-A of the Constitution of India would mean a validly enacted law meaning thereby a just, fair and reasonable law referring to Delhi Airtech Services (P) Ltd. v. State of U.P., (2011) 9 SCC 354 . The Court finally directed the tribunal to grant NOC to the owners of the land within three weeks. [Narayan Prasad v. State of Chhatisgarh,  2017 SCC OnLine Chh 1226, decided on 26.10.2017]