Case BriefsHigh Courts

Sikkim High Court: If a father keeps his self-acquired property for the purpose of mortgage, can his sons interfere in the same? Bhaskar Raj Pradhan, J. answered in the negative and stated that the sons did not have a right to stop the father in dealing with his self-acquired property in the manner he chose to.

Background

Petitioners in the instant matter were the adult sons of respondent 4 who was proceeded against before the Tribunal having stood as guarantor for the loan taken by respondent 2 from respondent 1.

Respondent 4 had mortgaged the landed property in dispute to respondent 1 as a guarantor. Respondent 3 wife of respondent 2 was also a guarantor. Respondent 1 was the Certificate Debtor 2 and respondent 4 was Certificate Debtor 3.

With this Court, a declaration was sought that the property involved in the auction sale shall not be sold in auction to realize the dues of respondent 1. Further, it was added that a declaration that the other landed properties of respondent 2 first be proceeded against to realize the dues of respondent 1 and a direction that the loan shall be realized from respondent 3 from her employer duly adjusting the considerable amount towards recovery loan.

Petitioners stated that the property was originally acquired by the father of respondent 4 and he got his property from his father on partition, hence the same was an ancestral property of the petitioners.

Further, it was stated that the petitioners, as well as the respondent, were Hindus governed by Mitakshara School of Hindu Law and that by virtue of their birth, they became owners of the property along with respondent 4 as coparceners.

Analysis

Whether the property was an ancestral property of the petitioners or if they had any enforceable right on the property mortgaged by respondent 4 in favour of respondent 1 as a guarantor?

According to Hindu Law by Sir Dinshaw Fardunji Mulla 23rd Edition “all property inherited by a male Hindu from his father, father’s father or father’s father father, is ancestral property.”

Supreme Court reiterated in Shyam Narayan Prasad v. Krishna Prasad, (2018) 7 SCC 646, “A property of a Hindu male devolves on his death.”

A 3-Judge Bench of the Supreme Court in C.N. Arunachala Mudaliar v. C.A. Muruganatha Mudaliar, AIR 1953 SC 495, held that

“father of a Joint Hindu Family governed by Mitakshara law has full and uncontrolled powers of disposition over his self-acquired immovable property and his male issue could not interfere with these rights in any way. The Supreme Court while examining the question as to what kind of interest a son would take in the self- acquired property of his father which he receives by gift or testamentary bequest from him, it was held that Mitakshara father has absolute right of disposition over his self-acquired property to which no exception can be taken by his male descendants. It was held that it was not possible to hold that such property bequeathed or gifted to a son must necessarily rank as ancestral property.

 “…a property gifted by a father to his son could not become ancestral property in the hands of the donee simply by reason of the fact that the donee got it from his father or ancestor.”

 In the instant case, it was evident that respondent 4 did not get the disputed property as his share on the partition as claimed by petitioners. The property was acquired on transfer by his father who had originally acquired it.

The above facts make the property self-acquired of late Hari Prasad Sharma and thereafter, of respondent 4 consequently not ancestral property of petitioners.

Hence, respondent 4 has the right to deal and dispose of the property as he desires.

Section 58 (a) of the Transfer of Property Act, 1882 states that a mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability.

Concluding the matter, Bench held that petitioners, sons of respondent 4 could not have any right to stop him in dealing with his self-acquired property in the manner he chose. Mortgage on the property does not create rights in favour of respondent 1.

In view of the above petition was dismissed. [Umesh Prasad Sharma v. Allahabad Bank, 2021 SCC OnLine Sikk 149, decided on 30-9-2021]


Advocates before the Court:

Mr A. Moulik, Senior Advocate with Ms K. D. Bhutia, Advocate for the petitioners.

Mr Sudesh Joshi, Advocate for Respondent 1,

Mr Pratap Khati, Advocate for Respondents 2 & 3.

None appears for respondents 4 and 5.

Case BriefsHigh Courts

Sikkim High Court: The Division Bench of Jitendra Kumar Maheshwari, CJ. and Meenakshi Madan Rai, J., dismissed a criminal leave petition which was filed against the Judgment dated 30-10-2018, passed by the Fast Track Court, East and North Sikkim at Gangtok in Sessions Trial (FT) Case No. 01 of 2017 acquitting the accused from the charge under Section 376 (2) (j) and (l) of the Penal Code, 1860.

The Court noted that it was true that the prosecutrix was a deaf and dumb woman, aged about 50 years, and she had stated about commission of rape with her by the accused. But, as discussed by the Trial Court it was clear that she was unable to answer any of the questions as put forth to her. The Court decided that her sole testimony was not safe to rely and to convict the accused.

The Court recorded that her evidence cannot be taken as an evidence of an eye witness; more so, it was observed that there was no allegation in the testimony regarding the penetrative sexual assault.

The Court also saw the medical and scientific evidence that too were not supporting the case of prosecution proving the guilt and to prove the charge on the accused.

The Court dismissing the appeal held that they were satisfied by the findings of the Trial Court.[State of Sikkim v. Dipen Subba, CRL. L.P. No. 11 of 2019, decided on 25-08-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


For Petitioner : Mr Sudesh Joshi and Mr Thinlay Dorjee Bhutia

For Respondent : Mr B.K. Gupta (Legal Aid Counsel) and Mr Dipen Subba

Appointments & TransfersNews

Appointment of Acting Chief Justice


President appoints Justice Meenakshi Madan Rai, senior-most Judge of Sikkim High Court, to perform the duties of the office of the Chief Justice of that High Court with effect from the date Justice Jitendra Kumar Maheshwari relinquishes the charge as Chief Justice of the Sikkim High Court consequent upon his appointment as Judge of the Supreme Court of India.


Ministry of Law and Justice

[Notification dt. 27-08-2021]

Case BriefsHigh Courts

Sikkim High Court: The Division Bench of Jitendra Kumar Maheshwari and Bhaskar Raj Pradhan, JJ., heard a petition which was filed seeking the implementation of the National Food Security Act, 2013 (‘Act of 2013’) read with Sikkim Foods Security Rules, 2014 (‘Rules of 2014’) for an order directing the State respondents to ensure proper quantity and items of food be provided to the beneficiaries falling under the general and special categories and also falling under the categories mentioned in section 6 of the Amendment Rules, 2017; to duly conduct social audit in order to monitor and evaluate the planning and implementation of the Amendment Rules, 2017 and to constitute an independent committee to investigate, report and find out solution for effective implementation of the Act of 2013.

Petitioner and another associate with Human Rights Law Network, Sikkim Unit had conducted fact finding at specific villages falling under different constituencies in East, West and South Districts of Sikkim to check whether people falling under Antyodaya Anna Yojna (AAY), Priority Household (PHH) and Other Priority Household (OPHH) (General) categories were receiving food grain as per the provision of the Act of 2013. After fact finding it was found that although members of AAY, PHH and OPHH were entitled to certain benefits, but they were not provided with the same by the fair price shops. It was the petitioner’s case that the data pertaining to the quantity of wheat provided to the beneficiaries in the official State portal of the Food Civil Supplies and Consumer Department and the reply to the query under the Right to Information Act dated 05-01-2021, was contradictory.

On 10-12-2020, the petitioner had received a mail from the State of Sikkim and names of fair price shops that were indulging in malpractices were sought. The petitioner however contended that despite sending the details, the State of Sikkim neither took any step nor issued any reply in about six months.

The Court stated that at this stage a direction issued to the respondent 1 and 2 to examine the grievances of the petitioner within a period of one month would suffice. The Court added that if the petitioner remains unsatisfied he would have liberty to approach the Court after the State respondents examine the issues.[Dew Kumar Chettri v. State of Sikkim, 2021 SCC OnLine Sikk 120, decided on 21-08-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


Advocates before the Court:

For Petitioner: Ms Mon Maya Subba

For Respondents: Ms Pema Bhutia

Case BriefsHigh Courts

Sikkim High Court: The Division Bench of Jitendra Kumar Maheshwari and Meenakshi Madan Rai, JJ., heard a Public Interest Litigation relating to the issue of extraction of the groundwater through sufficient surface water was available in the State.

Central Government Counsel was asked to give reasons as to why after having sufficient surface water, the necessity of extraction of groundwater arose. Central Ground Water

Board was required to explain that on availability of sufficient surface water, why the permission had been granted to 22 companies.

The Court observed that permission so granted for extracting the ground water was conditional and nothing was available on record to show those conditions have been complied with by the industries and the Regional Authorities have recorded its satisfaction. It was also observed that it was not on record that the condition as specified had been truly implemented and who was the Authority verifying those facts and whether they had checked by spot verification.

The Court was surprised to see that even during pendency of this Public Interest Litigation permissions have been granted for extracting the ground water without mentioning the fact that such permission was subject to condition of the orders passed by the Court.

The Court went on to find that the Central Ground Water Board and its Authorities had not specified reason for granting no objection for extracting the ground water and without such reason conditional permissions were granted. The Court stated that this type of functioning of the authority could not be appreciated.

The Court concluded that as nothing was available to explain the aforesaid issue, therefore, it’s appropriate to observe that any of the permission of extraction of the ground water granted to the industries in the State must be after recording the satisfaction and by assigning the reason and in case permission/renewal was found in violation of any conditions, action taken was required to be specified to the Court. It was made clear that if any Authority was found violating the Order of the Court or power not duly exercised then they may be held responsible. A further matter to be taken up on 10-09-2021.[Discharge of Effluents by Pharma Companies, In Re., 2021 SCC OnLine Sikk 101, decided on 27-07-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


For petitioner : Ms Manita Pradhan, Amicus Curiae, Mr Sajal Sharma, Amicus Curiae.

For respondents: Dr Doma T. Bhutia, Addl. Advocate General

Case BriefsCOVID 19High Courts

Sikkim High Court: The Division Bench of Jitendra Kumar Maheshwari, CJ. and Bhaskar Raj Pradhan, J., took up a perused affidavit submitted by the State which dealt with four things. It included Covid care facilities in the State, vaccination drive of the State, proposed setting up of Viral Research and Diagnostic Laboratory (VRDL) and proposed policy to meet the third wave.

With regard to the Covid care facilities, it was submitted that there is one Covid Dedicated Hospital, 2 Dedicated Covid Health Centres and 28 Covid Care Centres in the State. The Court observed that the affidavit was, however, silent on which guideline that has been followed by the State, what was the requirement as per the guidelines and what are the measures taken and facilities provided as per the guidelines including the human resources.

The State submitted that the vaccines are allotted by the Centre in an equitable manner as per the population of the State. The affidavit, however, was silent about any attempt being made by the State to communicate with the Centre to increase the quota of vaccines keeping in mind the unique factors in the Sikkim situation.

In relation to setting up of VRDL was concerned, the affidavit stated that the request of the State for setting up VRDL at district Namchi had been refused although no information was provided as to why it was refused. The Court stated that it becomes more important because of the previous orders passed by this Court, whereby they had implored the Centre as well as the State to act in unison to set up such testing facilities in all the districts of Sikkim.

The Court noted that State respondents had requested for Mobile I-LABS as well as two Mobile Testing Laboratories and that they have approved the proposal of TATA MEDICAL AND DIAGNOSTIC (TATA MD) to establish RTPCR laboratory for the Namchi and Gyalshing District Hospitals, within 6 to 8 weeks.

The Court showed concern about the time sought by the Additional Advocate General to submit a policy to meet the third wave of Covid and about action being sought to be taken by the State Government against a Medical Practitioner for unauthorized RAT testing.

The Court took cognizance of the report in Sikkim Express titled “Covid outbreak in South shelter home” which reported that 25 covid positive cases have been reported from Mangalbarey in South District including 16 from a shelter home there. It is further reported that the infected children and the staff of Mangalbarey shelter home have been shifted to Covid Care Centre at CCCT Chisopani. The report further mentions that recently 21 children and 3 caretakers of a Child Care Institute at Rabongla had tested COVID-19 positive and are presently admitted at the Covid care centre, Kamrang. The report also voices the concern that shelter homes, childcare institutions and other similar institutions cannot totally follow the COVID-19 protocols like social distancing for practical reasons and as such few initial COVID-19 cases quickly infect the other persons staying in institutions and become covid hotspots.

The Court directed the State o immediately take stock of the situation in all shelter homes, childcare institutions, old age homes, destitute homes, observation homes, open shelters, place of safety, special homes and all other such care facilities available in the State, both governmental and non-governmental, to insulate the inmates and staff from the pandemic.[Covid 19 Management, In Re., 2021 SCC OnLine Sikk 88, decided on 07-07-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Sikkim High Court: Jitendra Kumar Maheshwari, CJ. allowed a writ petition which was filed assailing the updated Award passed by the Lok Adalat though signed on 26-06-2015.

The facts were that petitioner 1 was the wife of Defendant 1 in the suit and petitioners 2 and 3 were his sons. It was their grievance that they were deserted by defendant 1 and the suit property in which they were residing had been partitioned without joining, noticing them and affording opportunity in violation of the principle of natural justice.

In the said partition suit, a compromise deed dated 22-06-2015 was filed and the respondents only had entered into the compromise partitioning the entire property by collusion and fraud, which originally belonged to Late Kashi Nath Prasad. It was urged by the counsel of respondent that the suit was filed merely to partition of the property which is recorded in the joint name, however, in such a case the claim of the petitioner is through defendant no.1, which is clearly protected by virtue of settlement arrived between the parties of the suit. The Award of the Lok Adalat does not warrant any interference in this petition, therefore, maintaining the Award, the Writ Petition may be dismissed.

The Court after perusing the records and hearing the parties concluded that the issue involved in the present case was squarely decided by the judgment of the Bhargavi constructions v. Kothakapu Murthyam Reddy, Civil appeal no.11345 of 2017 decided on 07-09-2017 and State of Punjab v. Jalour Singh, (2008) 2 SCC 660 the petition under Articles 226 and/or 227 of Constitution of India challenging the Award of the Lok Adalat was tenable. The Court observed that there is no cable of doubt that the Award of the Lok Adalat can be assailed by way of petition under Articles 226 and/or 227 of the Constitution of India.

The Court held that in place of accepting the plea that the compromise by virtue of collusion and fraud and the Award so passed in the same fashion; but in view of the observation so made it is suffice to observe the Award so passed by the Lok Adalat in view of the pleadings of the suit without joining all the parties and without affording an opportunity is not proper. Writ Petition was allowed, the Award passed by the Lok Adalat was set aside.[Munni Devi v. Dul Dul Prasad, 2021 SCC OnLine Sikk 82, decided on 02-07-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


Appearance:

For Petitioners: Mr Nayan Nepal

For Respondents: Mr J.B. Pradhan, Sr. Advocate Mr D.K. Siwakoti, Ms Prarthana Ghataney, Ms Ranjeeta Kumar

Case BriefsHigh Courts

Sikkim High Court: Meenakshi Madan Rai, J., rejected a bail application wherein the Petitioner, Principal of a School, aged about 58  years, was accused of the offence under Section 354 of the Indian Penal Code, 1860, Section 8 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”) and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015. He was arrested on 03-03-2021.

The counsel for the petitioner, Mr B. Sharma, Senior Advocate with Mr B.N. Sharma, Mr Bhupendra Giri and Mr Charles L. Lucksom submitted that the petitioner was been falsely implicated in the instant case and that he was a responsible person running a well established Private School and was also a Politician having been elected as a Councillor and given the responsibility of Vice Chairman of the Gorkha Territorial Administration. That, he was a well reputed Social Worker and owned large property in South Sikkim. That, the investigation in the matter had been completed and he was no longer required in custody. It was further urged that he was suffering from Diabetes Mellitus, Heart disease, Dyslipidemia, Hypertension, Hyperuricemia and Renal Calculus, and the Doctor has observed that a Hypoglycemic attack may occur at any time of the night and has to be tackled urgently, this ground alone sufficed for grant of bail.

Opposing the bail application, counsel for the respondent Mr Yadev Sharma, submitted that the victim was the child of 17 years and was studying in the School run by the Petitioner as the Principal and in lieu of paying personal attention to the victim he touched her inappropriately and gave indirect hints seeking sexual favours from her. He also verbally abused her, made her do household chores and give him massages. That, since the date of his arrest, the Petitioner has remained in the Hospital with the purpose of defeating the law. That, Charge-Sheet is yet to be submitted and further investigation in the matter is being continued during the course of which, it has come to light that the mother of the victim who was the Complainant, was being pressurized to change her Statements against the Petitioner and also that he had perpetrated the same acts on other girl Students as he did on the victim.

The Court considered several factors before deciding on this matter of bail which were:

  • existence of prima facie case against the accused,
  • the nature and gravity of the accusations,
  • the penalty likely to be imposed,
  • chances of the accused absconding on being enlarged on bail,
  • the antecedents and standing of the accused in society;
  • likelihood of repetition of the offence,
  • reasonable apprehension of evidence being tampered with and witnesses being influenced; and
  • the course of justice being defeated by grant of bail.

The Court considered the FIR and the medical documents on record and observed that there was no imminent threat to the life of the petitioner. The Court further held that the gravity of the offence was necessary to be taken into consideration and the acts of the Petitioner were indeed heinous having been perpetrated on a minor under his care and guidance.

The Court while rejecting the plea for bail held that there is a prima facie case against the Petitioner although elaborate examination of evidence has not been embarked upon nor were the merits of the case being touched upon, to avoid any prejudice to the petitioner.[Lopsong Lama Yolmo v. State of Sikkim, Bail Appln. No.06 of 2021, decided on 16-04-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Hot Off The PressNews

Chief Justice of Sikkim High Court noted that there had been an undue delay in recording of statement of the victims under Section 164 of the Code of Criminal Procedure, 1973 by Magistrates.

Against the Mandate of Law

CJ noted that the Magistrates had been fixing dates after a week or two with respect to the recording of statements after receiving the application from the investigating officer concerned, which is against the mandate of law.

Summoned – Improper Practice as it entails unnecessary wastage of time & resources

It also came to the notice of Chief Justice that the Magistrates recording the statements were being routinely summoned by the Session Court and Special Courts to prove the contents of the statement.

Citing the decision of Sikkim High Court in State of Sikkim v. Rakesh Rai, 2012 Crl. L.J. 2737 observed that there was no justification in calling the Magistrate as a witness.

Andhra Pradesh High Court in Guruvindapalli Anna Rao v. State of Andhra Pradesh, 2003 Crl. L.J. 3253 observed that if any Magistrate records the statement of a witness under Section 164 CrPC, it is not necessary for the Sessions Judge to summon the Magistrate to prove the contents of the statement recorded by him. When a Magistrate, discharging his official functions as such, records the statement of any witness under Section 164 CrPC such statement is a ‘public document’ and it does not require any proof.

Hence, in view of the above, Chief Justice of Sikkim High Court directed that the magistrates shall record the statement of victims/witnesses on the same day when such applications are received and in case the same is not possible, then the statement has to be recorded on the immediate next day.

Further, the Sessions Judges/Special Judges may not summon the Magistrates in a routine manner to prove the contents of such statement.


Sikkim High Court

 

[Dt. 09-04-2021]

Appointments & TransfersNews

Transfer Order

President, after consultation with the Chief Justice of India, transfers Justice Arup Kumar Goswami, Chief Justice of Sikkim High Court, as Chief Justice of the Andhra Pradesh High Court and directs him to assume charge of the office of the Chief Justice of the Andhra Pradesh High Court.

ORDER


Ministry of Law and Justice

[Notification dt. 31-12-2020]

 

Appointments & TransfersNews

Transfer Orders

President transfers Justice Jitendra Kumar Maheshwari, Chief Justice of Andhra Pradesh High Court, as Chief Justice of the Sikkim High Court and directs him to assume charge of the office of the Chief Justice of the Sikkim High Court.

ORDERS


Ministry of Law & Justice

[Press Release dt. 31-12-2020]

Appointments & TransfersNews

Justice Meenakshi Madan Rai, senior-most Judge of the Sikkim High Court, to perform the duties of the office of the Chief Justice of that High Court with effect from 15th July, 2020 to 06th August, 2020 (both days inclusive) during the absence of Shri Justice Arup Kumar Goswami, Chief Justice, Sikkim High Court, on leave.

NOTIFICATION


Ministry of Law and Justice

[Notification dt. 16-07-2020]

Appointments & TransfersNews

President is pleased to appoint Smt. Justice Meenakshi Madan Rai, senior-most Judge of the Sikkim High Court, to perform the duties of the office of the Chief Justice of the Sikkim High Court with effect from 17th September, 2019 consequent upon the retirement of Shri Justice Vijai Kumar Bist, Chief Justice of the Sikkim High Court.


Ministry of Law and Justice

[Notification dt. 13-09-2019]

Appointments & TransfersNews

Supreme Court Collegium comprising of Ranjan Gogoi, CJ and S.A. Bobde and N.V. Ramana, JJ. recommends the appointment of Justice Arup Kumar Goswami as the Chief Justice of the Sikkim High Court.

Office of the Chief Justice of the Sikkim High Court would be falling vacant shortly, consequent upon retirement of Justice V.K. Bist, Chief Justice of that High Court. Therefore, appointment to that office is required to be made.

Justice Arup Kumar Goswami is the senior-most Judge from Gauhati High Court and has been functioning there since his elevation. Having regard to all relevant factors, the Collegium is of the considered view that Justice Arup Kumar Goswami is suitable in all respects for being appointed as Chief Justice of the Sikkim High Court. The Collegium resolves to recommend accordingly.


Collegium Resolution

Supreme Court of India

Appointments & TransfersNews

The President in exercise of the powers conferred by Article 223 of the Constitution of India, appointed Smt. Justice Meenakshi Madan Rai, senior-most Judge of the Sikkim High Court, to perform the duties of the office of the Chief Justice of the Sikkim High Court with effect from 01st July, 2018 consequent upon the retirement of Shri Justice Satish Kumar Agnihotri, Chief Justice of the Sikkim High Court.

Ministry of Law and Justice