Calcutta High Court
Case BriefsHigh Courts

Calcutta High Court: Shampa Sarkar, J. disposed of a writ petition with certain directions to police authorities in relation to an investigation in lieu of protection of animals.

Petitioners are members of the Kalyani Bar Association. They filed a complaint that a piglet which had been rescued and brought up by them, was forcefully taken away by some miscreants. It was alleged that four unknown persons entered the Court premises in a swift desire and forcefully took away the animal.

It was noted that the entire incident was video-graphed in a mobile phone by a security guard and forwarded to the police. It was further urged that forceful removal of the animal from its familiar surroundings and from the custody of the persons who looked after it, amounted to cruelty and it should have been incorporated in the FIR.

The Court found substance in the contentions of the petitioner and opined that the police authorities ought to have conducted the enquiry with more seriousness. It was further opined that although, the statements of the security guards were recorded under Section 161,Criminal Procedure Code, whether attempts were made to track down the accused persons, do not reflect from the report. The Court dissatisfied by the investigation stated that from the photographs clicked by the security guards, the identity of the miscreants could have been ascertained.

The Court clarified that the paramount consideration in this investigation should be to protect the interest of the animal, apart from protection/security of court compound. Well-being of animals has been statutorily recognized. The right to get protection from unnecessary pain or suffering, is a right guaranteed to the animals under Section 3 and Section 11 of the Prevention of Cruelty to Animals Act, 1960 (PCA Act) read with Article 51-A(g) and (h) of the Constitution of India.

The Court further relied on Animal Welfare Board of India v. A. Nagaraja, (2014) 7 SCC 547 where it was observed that freedom from fear and distress are recognized as a right in case of animals. Thus, when the pig was forcefully removed from its surrounding by unknown persons, the rights guaranteed, have been violated.

Consequently, the Court was of the view that Superintendent of Police shall supervise the investigation henceforth and take necessary steps in this regard. It was reiterated that it is to be kept in mind that it is fundamental duty to protect the animals, from cruelty. This is not a case that the civic body had removed the animal, for maintenance of hygiene etc. Further, the police authorities were directed to keep a strict vigil towards the security of the Court compound so that no such incident was repeated.

[Atasi Chakraborty v. State of West Bengal, 2022 SCC OnLine Cal 2021, decided on 15-07-2022]

Advocates who appeared in this case :

Mr Shibaji Kumar Das, Mr Bhaskar Prasad Vaisya, Advocate, for the Petitioner;

Mr Mrinal Kanti Ghosh, Advocate, for the State.

*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Mukta Gupta and Neena Bansal Krishna, JJ., observed that Court cannot assume the duties of the Administrator or the Executive Committee to address the day-to-day grievances.

The petitioner had filed the writ petition for issuance of direction or order to not deprive and violate the fundamental right of the petitioner, to live with dignity and mental peace and not to disrupt the supply of basic needs and essential services and for uninterrupted ingress and egress to his residence in the society complex, and further maintain rule of law.

Factual Background

The petitioner was residing in the co-operative Group Housing Society having 120 members. The said members were allotted dwelling apartments and the Society was managed by respondent 2.

The claim of the petition was that he had an abode in the Society and was suffering from constant deprivation and gross infringement of his right to enjoy the property. Further, he had been deprived of basic services and a dedicated car parking inside the Society as part of the Group Housing Scheme under the DCS Act.

The petitioner approached the appropriate legal forum, and an award was passed directing respondent 2 to provide one dedicated earmarked car parking for each member of the Society and also to remove illegal occupants from the parking area under the stilt of the building.

Analysis and Decision

One of the grievances of the petitioner was that his demarcated car parking had been occupied by the unauthorized occupants and despite the Award, the earmarked car parking was not being restored to him. However, it was his own assertion that he had applied for execution of the Award in which necessary direction had been issued.

The Bench expressed that, this Court cannot assume the duties of the Administrator or the Executive Committee to address the day-to-day grievances of the petitioner.

Further, it was claimed by the petitioner that he was not getting free access to the lift and enjoyment of the common facilities and amenities.

High Court stated that, the allegations made were general, vague and lacked specific details.

Lastly, the Bench concluded that the grievances of the petitioner were general and essentially about the efficiency of services which had to be agitated by the petitioner within the mechanism as provided under the Delhi Cooperative Societies Act, 2003.

There was no merit in the present petition. [D S Kundu v. Registrar, Co-op Societies Delhi Old Court Building; 2022 SCC OnLine Del 1499; decided on 20-5-2022]

Advocates before the Court:

For the Petitioner: Petitioner-in-person

For the Respondents: Ms Sanjana Nangia Advocate for Mr Sameer Vashisht, Additional Standing Counsel for GNCTD.

Case BriefsTribunals/Commissions/Regulatory Bodies

Maharashtra Real Estate Appellate Tribunal, Mumbai: The Coram of Indira Jain J., (Chairperson) and Dr K. Shivaji, Member (A), expressed that, if the change of promoter without following the procedure prescribed under the law is left to the wisdom of society, it will not only render the relevant provisions of revocation of registration redundant but also create chaos and uncontrollable situation leaving the fate of allottees /flat purchasers in doldrum.

Factual Matrix

Complainants had booked apartments in a real estate project, respondent 2 was initially appointed as a developer by the society. In 2018, the society terminated the development agreement executed with respondent 2 and revoked the power of attorney. After the termination of the development agreement, society appointed Mangal Buildhome Private Limited as a developer to complete the project.

Complainants stated that the appointment of a new developer by society was in the contravention of the provisions of Section 15 of the Real Estate (Regulation and Development) Act, 2016 and therefore, they filed complaints before MahaRERA to seek direction to execute and register agreements for sale, cancellation of a development agreement with new developer and completion of the project.

As per the interim order the society was directed to convene a meeting of allottees and come up with a way forward for the completion of the project and the interim order restrained both the developer from creating third party rights.

The above-said interim order was challenged. Further impugned order dated 3-12-2021 came to be passed by the Chairperson, MahaRERA while disposing of complaints on merit.

Moot Question

Whether the action of the society in appointing a new developer is prima facie in accordance with the procedure prescribed under the law?

In the present matter, though society had come with a plea that intimation of revocation of registration was sent to the Authority, it was evident that no decision was taken by the Authority n letter written by the Society.

Law requires the decision of the Authority and in the absence of such decision mere intimation by society to the Authority would not empower the society to appoint a new developer during the subsistence of registration of the project.

Coram also noted that the society did not obtain the prior written consent of two-thirds of allottees at the time of appointment of a new developer after the termination of the development agreement entered into with the erstwhile developer.

Prima facie, the action of the society in appointing a new developer was not in consonance with the procedure prescribed under law. Hence, stay was not granted. [Mangal Buildhome (P) Ltd. v. Ramasubramanian R. Nadar, Appeal No. AT006000000053504, decided on 21-4-2022]

Advocates in appearance:

Mr. Sanjay Jain, Advocate, for appellants in Appeal Nos.AT006000000053504, AT006000000053506, AT006000000053508, AT006000000053509 and for respondent No.3 in 4T006000000053512, AT0060000000535 15, AT0060000000535 13 and AT0060000000535 14,

Mr. Harshad Bhadbhade, Advocate, for appellant in Appeal Nos. AT006000000053512, AT006000000053515, 4T006000000053513 and 4T006000000053514 and for respondent No.3 in Appeal Nos.4T006000000053504, AT006000000053508, AT006000000053506, AT006000000053509

Mr, Nilesh Gala, Advocate, for respondent No.1 in Appeal Nos. AT006000000053504, AT006000000053508, AT0060000000535 12, AT00600000005351s.

Mr. Nimay Dave, Advocate for respondent No.1 in Appeal Nos.AT006000000053506, AT006000000053509, AT006000000053513, AT006000000053514

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: Observing that, a developer who has been appointed by the Society and who is eager to proceed with the redevelopment, was in some manner left baffled and dragged into litigation, G.S. Kulkarni, J., held that, non-cooperating members cannot foist a delay on the builder and the society in the commencement of the redevelopment work resulting in the project costs being increased every passing day.

A redevelopment of a 50-year-old dilapidated building of respondent 1 Co-operative Housing Society and the obstruction for such redevelopment by respondents 2 to 4 concerning their four units was the subject matter of the present proceedings filed under Section 9 of the Arbitration and Conciliation Act 1996.

Out of 30 members, 26 members have already vacated the society.

Society considering the dangerous condition of the building had taken up the issue of the urgent need for the redevelopment of the building. Further, the Society took steps to find out a suitable developer. An ‘Annual General Meeting’ was convened wherein by majority of the members it was resolved to appoint the petitioner as the developer.

Thereafter, a further Annual General Meeting of the Society was held in the presence of the officers of Maharashtra Housing Area Development Authority (MHADA). In such meeting, a decision was taken to appoint the petitioner as a developer to undertake the redevelopment of the Society’s premises, was confirmed.

Later, a Development Agreement was executed between the petitioner and the Society. Being appointed as a developer the petitioner, took steps so that the redevelopment work could commence.

Respondents 2,3 and 4 vacated and /or obstructed the redevelopment. They caused hurdles and impediments to the redevelopment work which according to the petitioner and the society caused serious prejudice to the members who had already vacated and who were eagerly awaiting the redevelopment work.

City Civil Court granted a temporary injunction restraining the society and the petitioner in taking any further steps qua the redevelopment of the Society’s building and from disturbing respondent 2’s possession.

Analysis, Law and Decision

Settled Position of Law

The minority members cannot act against the will of the of the majority members of the society and obstruct the redevelopment.

High Court observed that respondents 2 to 4 cannot take a position opposing the redevelopment, which was for the beneficial interest of all the members of the society. They cannot cause suffering to the other members who have already vacated.

“…cannot foist a delay on the petitioner and the Society in commencement of the redevelopment work resulting in the project costs being increased every passing day which would be immensely prejudicial to the petitioner as also the society.”

Further, the Bench added that,

“Respondents no 2 to 4 appear to be carrying an approach that as their residential units in the redevelopment are certainly secured, however the situation of the building going for redevelopment can be exploited to coerce the society and the petitioner for something, which prima facie appears to be, is beyond their normal entitlement. Such an approach is deleterious and detrimental to the majority members of the Society.”

Elaborating further, the High Court noted that, the redevelopment needs to proceed in a manner as agreed between the Society and the Developer and as per the sanction/ approval of the majority members.

In Court’s opinion, it is high time that the members realise that while they raise their grievances, such grievances are really genuine and not of a nature which would unwarrantedly obstruct and delay the proposed redevelopment.

“There needs to be a safeguard against unscrupulous persons who raised frivolous grievances. If such obstructing persons/members fail in proceedings, they would be accountable to the Society for the delay they are causing by such obstructive approach, based on the principle that once a person becomes a member he loses his individuality and has no independent rights except those given to him by the statute and the bye-laws.”

Respondents 2,3 and 4 had already adopted legal proceedings against the Society and the petitioner/developer.

In view of the above discussion, respondents 2,3 and 4 had no right to delay, defeat and prejudice the redevelopment by not vacating their respective units. The petitioner made out a strong prima facie case. [Choice Developers v. Pantnagar Pearl CHS Ltd., 2022 SCC OnLine Bom 786, decided on 13-4-2022]

Advocates before the Court:

Mr. Rajiv Singh a/w. Omprakash Jha, Basu, Gaurav i/b. The Law Point for the petitioner.

Mr. Siddharth a/w. Garima Mehrotra for respondent no. 1-Society.

Mr. A.M. Saraogi for respondent nos. 2 and 4.

Mr. S.L. Mhatre for respondent no. 3. 

Case BriefsHigh Courts

Rajasthan High Court: Mahendra Kumar Goyal, J., disposed of the petition directing the Station House officer of the concerned police station to provide safety and security to the aggrieved couple.

The instant petition was filed under Section 482 of the Criminal Procedure Code for protection of life and personal liberty of the petitioners.

Counsel for the petitioners submitted that both the petitioners are major and are in live-in relationship in pursuance of agreement attested on 17.06.2021; but, the private respondents are not happy with it and they are threatening the petitioners. Given that their life and liberty is in danger, police protection may be granted to them.

Counsel for respondent 5 Mr Sikander Ali Chopdar submitted that FIR has been filed with the Police Station Ringus, District Sikar against the petitioner 2 and hence, the petitioners cannot be extended police protection.

The Court relied on judgment Lata Singh v. State of UP, (2006) 5 SCC 475, S. Khushboo v. Kanniammal, (2010) 5 SCC 600, Indra Sarma v. VKV Sarma, (2013) 15 SCC 755 and Shafin Jahan v. Asokan KM, (2018) 16 SCC 368 and observed that the society cannot determine how individuals live their lives, especially when they are major, irrespective of the fact that the relation between two major individuals may be termed as unsocial. Thus, the life and personal liberty of the individuals has to be protected except according to procedure established by law, as mandated by Article 21 of the Constitution of India. Further, as per Section 29 of the Rajasthan Police Act, 2007 every police officer is duty bound to protect the life and liberty of the citizens.

The Court further observed that the petitioners are major and petitioner 1, the girl is residing with the petitioner 2 out of her free will. Being major, she is entitled to reside with the person of her choice.

The Court thus held “counsel for the petitioners shall send a copy of the petition along with its annexure to the Station House Officer of concerned Police Station through registered post/e-mail, and on receipt of the same, the Station House Officer concerned shall treat it as a complaint and after due enquiry, he shall take necessary preventive measures and other steps to ensure safety and security of the petitioners in accordance with law.”

[Divya Shekhawat v. State of Rajasthan, S.B. Criminal Miscellaneous (Petition) No. 3522/2021, decided on 24-06-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: A Single Judge Bench comprising of Manoj K. Tiwari, J. allowed a compounding application as the offence involved was of a private nature and continuation of the criminal case would only cause oppression to the applicant.

This criminal miscellaneous application was filed by the applicant through his counsel Hemant Mehra and Vivek Pathak for setting aside the impugned order passed under Sections 9(b) and 37(2)(c) of Protection of Women from Domestic Violence Act, 2005 along with a compounding application which shows that the applicant and the respondent have entered into a compromise whereby they have settled their disputes amicably outside the court following which if the criminal case continued it would serve no purpose. Also, the respondent through her counsel Preeta Bhatt and Anjali Noliyal has agreed to compound the matter against the applicants.

Accordingly, the court said that the offence involved in this case was of a personal nature and thus was not an offence against the society and nonetheless was not a heinous offence showing extreme depravity therefore in order to prevent abuse of process of law inherent powers under Section 482 CrPC shall be exercised. Accordingly, the Court allowed the petition.[Asish Makhijani v. State of Uttarakhand,2018 SCC OnLine Utt 1021, decided on 14-12-2018]