ALLIED LAWS

15.  Appeal dismissed – Merger of
the High Court order into the Supreme Court Order. [Constitution of India,
Article 141, 136]

Archana
Mishra and Ors. vs. State of U.P. and Ors. AIR 2018 Allahabad 278

The
question before the Court for consideration was with respect to whether Dr.
Vishwajeet Singh’s case  and the Full
Bench decision in Heera Lal’s case  have been correctly decided.

It
was observed that the decision in Dr. Vishwajeet Singh had been subjected to
challenge before the Supreme Court in Civil Appeal Nos. 6385-6386 of 2010, and
the same was dismissed without any discussion. Hence, it was not in dispute
that if it is ultimately held that the view/opinion expressed by the Division
Bench in Dr. Vishwajeet Singh’s stands confirmed and merged in the order of the
Supreme Court, it would not be necessary for the reference to be addressed on
merits.

It
was held by the Court that their unequivocal answer therefore to the issue
framed would be that the decision in Dr. Vishwajeet Singh stood duly
affirmed by the Supreme Court. The said decision consequently merged in the
order of the Supreme Court. The order of the Supreme Court came to be rendered
after grant of leave. Once the decision of this Court stood merged in the order
of the Supreme Court, it would not be legally permissible for this Full Bench
to consider the correctness or otherwise of Dr. Vishwajeet Singh. This Court is
bound by the said order of the Supreme Court irrespective of the absence of a
“speech” or recordal of elaborate reasons on the legal issues which
arose therein. The issue essentially is not one of the Court being faced with a
precedent but primarily of merger. Once, as we have found, the decision of the
Division Bench stood subsumed in the order of the Supreme Court after grant of
leave with a positive affirmation of the view taken therein, it is no longer
open for this Court to revisit the said decision.

16.  Benami
Property – Land in name of Family member – Cannot be considered as Benami.
[Benami Transactions (Prohibition) Act, 1988; Section 4]

Narendra
Prasad Singh vs. Ram Ashish Singh and Ors. AIR 2018 Patna 205

The stand of the appellant was that the claim of the
plaintiff’s title and not the title of the defendants, over the suit property,
was barred u/s. 4 of the Benami Transaction (Prohibition) Act, 1988. It was
observed by the court that such a view could not have been accepted since
acquisition of the land in the name of a member of a family from the joint
family property cannot be regarded as a benami transaction within the meaning
of section 2 of the Benami Transaction (Prohibition) Act, 1988. Benami
transaction has been defined u/s. 2(a) of the Benami Transaction (Prohibition)
Act, 1988 as any transaction in which property is transferred to one person and
a consideration is paid or provided by another person. In the present case, the
consideration has been found to have been provided by the joint family fund
which cannot be treated as fund of another person.

It
was therefore held that the said provision does not have any application at all
in the present facts and circumstances. This is also to be noted that the
plaintiff claimed his title purely on the basis of the family arrangement and
not a benamidar and, therefore, the suit cannot be said to be hit by Benami
Transaction (Prohibition) Act, 1988. The said question was answered
accordingly.

17.  Partition – Oral Agreement
–Registered document not required. [Registration Act, 1908; S.17]

Santosh
Kumar Tiwari and Ors. vs. Meena Bai and Ors. AIR 2018 Chhattisgarh 167

The
plaintiffs had proved that the registered deed was executed amongst the
successors-in interest of Chhedilal and their three brothers namely Ramdulare,
Ramjharokha and Ramnarayan, in which also, such fact was mentioned. The deed
had been duly proved by Santosh Kumar (P.W. 1). Therefore, the evidence led by
all the joint owners and their successors-in-interest is coherent that the oral
partition had taken place amongst four brothers way back in the year 1966-67.
The defendant-Motilal is an outsider. As against common stand taken by all the
shareholders of the property that the partition was effected in the year
1966-67, the defendant/Motilal, except denying such partition, has failed to
place on record any clinching evidence, oral or documentary in nature, to prove
that partition had taken place in the year 1962-63, except suggestions being
given to the witnesses.

In
view of the above, the Court held that the learned Trial Court fell in error in
holding that the plaintiffs failed to prove the partition amongst themselves.
It has to be noticed that the factum of partition has been proved from
the oral evidence of Ramnarayan, Ramjharokha and Ramdulare who were three brothers
in the partition proceedings with their fourth brother – Chhedilal. Learned
Trial Court appears to be swayed from the fact that a subsequent deed was not a
registered document. The effect of that document being unregistered would only
be that it would not be inadmissible in evidence as proof of partition,
however, the plaintiffs have led their evidence to prove partition amongst four
brothers. When three out of four brothers have deposed in the Court that they
had partitioned a joint family property amongst themselves in the year 1966-67,
in the considered opinion of this Court, law does not require that it should be
proved only by a registered document and not otherwise. Once there is reliable
oral evidence of partition amongst the joint holders of the property, the law
does not require that it should be only by way of registered deed of partition.

18.  Precedent – Mere pendency of
appeal cannot operate as stay on order – Order appealed against holds good.

R.K. Ganapathy Chettiar vs. Assistant Commissioner (CT),
Kangeyam  2018 (16) G.S.T.L. 562 (Mad.)

In
case of an issue where reliance was place on a certain judgment by the
petitioner, the Learned counsel appearing for the respondent submitted that
writ appeals have been preferred by the State, against the order in the case of
Everest Industries Limited vs. State of Tamil Nadu [2017] 100 VST 158 (Mad),
and the appeals are yet to be numbered.

It
was held by the honourable Court that, as on date, the writ appeals filed by
the State challenging the correctness of the decision in Everest Industries
Limited vs. State of Tamil Nadu [2017] 100 VST 158 (Mad), are yet to be
numbered and mere pendency of such appeals cannot operate as stay of orders in Everest
Industries Limited vs. State of Tamil Nadu [2017] 100 VST 158 (Mad).
Therefore as on date, the said order holds good. Thus, on the second aspect
also, the assessment requires to be re-done.

19.  Public Interest Litigation –
Encroachment by shopkeepers – Mandatory Directions. [Constitution of India;
Article 226, 227, 21]

Manmohan
Lakhera vs. State and Ors. AIR 2018 Uttarakhand 187

The
fact of the matter state that despite repeated directions issued the Court,
neither the State Government nor the MDDA nor the Nagar Nigam Dehradun had
taken any effective steps to remove the encroachment from the public
streets/pavements.

It was observed
by the honourable Court that the Public streets are for public convenience.
These should be free from encroachment. The citizen must have a free access to
footpaths. The Court can take judicial notice of the fact that the children and
elderly people also use the footpaths. The shopkeepers, firstly, are permitted
to construct temporary khokhas and, thereafter, they make them pucca. There are
permanent bottlenecks as noticed in the report, and highlighted by us. The
footpaths are being permitted to be used for placing big generators causing
noise and air pollution. The shopkeepers are permitting the vegetable and fruit
vendors to sit in front of their shops. The residential premises have been
converted into commercial complexes, more particularly, in the oldest colony
i.e. Nehru Colony. Similar is the plight of other localities. There is chaos
all over Dehradun. The traffic moves at snail’s pace. The public authorities
cannot be oblivious to the loss of precious time of commuters. The Court can
take judicial notice of the fact that the roads, encroached upon with impunity
with the connivance and collusion of the authorities, are also ridden with
garbage. Every citizen has a right to access to footpaths, roads, parks and
public utilities under Article 21 of the Constitution of India. It is the duty
cast upon the MDDA and the Nagar Nigam to keep the roads clean. Recently, there
was a strike by the Safai Karamchari which further deteriorated the position.
There was no alternative plan available with the Nagar Nigam and MDDA. The
garbage was not removed from the streets for days together. The respondents are
putting wool over the eyes of the Court by giving assurances from time to time
that they are doing their best to remove the encroachment, but till date,
Dehradun town is still suffering from this menace. The decision was taken by
the High Power Committee on 10^th July 2014. We are in 2018. Since
then, the things have worsened instead of improving. The simple reason for
encroachments, extension of shops and unauthorised construction is
manifestation of the human greed with the collusion of functionaries of
government and municipal bodies. The employers did not take any disciplinary action
against the persons responsible for keeping the cities and towns free from
encroachment.

In
view of the same, The Municipal Corporation/MDDA/State functionaries are
directed to remove all the unauthorised encroachment on public
footpaths/streets/roads/pavements including unauthorised constructions made
over them within a period of four weeks from today by using its might.

The
Chief Secretary to the State of Uttarakhand is directed to initiate
disciplinary proceedings against the officers/officials, during whose tenure,
government land/municipal land/forest land have been encroached, with impunity,
by the unscrupulous people, and other related parties.

It was also mentioned that in case of
non-compliance, he shall be personally liable for contempt as well as
disciplinary proceedings.