Allied Laws

26.  Appellate Tribunal – Bias – Adjudicating authority subsequently became a Technical Member – Matter remanded for fresh adjudication. [CESTAT]

Sify Technologies Ltd. vs. Commissioner of C. Ex. and S.T., LTU, Chennai 2018 (12) G.S.T.L. 245 (Mad.)

In the present case, there were two grounds pleaded before the High Court with respect to the authority who has issued the show cause notice, thereafter became a Technical Member of the CESTAT and he was also part of the Bench, which passed the Final Order. The bench of the CESTAT had decided the issue against the appellant. Though likelihood of bias has not been pleaded before the Tribunal, but a ground has been raised in the instant appeals. On such ground and without going into the merits of the case, we are of the view that impugned orders are liable to be set aside and accordingly, set aside.

27. Benami – Joint family property – Benami Transaction – Section 4 cannot be applicable to the facts of the case. [Benami transactions (Prohibition) Act, 1988; Section 4]

K.Krishna Palani vs. Santhakumari and others AIR 2018 (NOC) 154 (MAD.)

The question for determination before the honourable bench was whether the provisions of section 4 of the Benami transactions (Prohibition) Act, 1988 was attracted to the facts of the case.

It was contended that section 4 of the Benami Act would be attracted since schedule property stood in the name of the mother i.e. the 2^nd defendant (since deceased). Therefore, the property would be treated as self-acquired property of the 2^nd defendant.

It was observed that the properties belonging to the Joint family were settled in favour of the 2^nd defendant, where it was clearly stated that the properties could not be sold by herself but only along with the other members of the family including the settlor. The courts below had clearly held that the father of the appellant had purchased the property for his wife i.e. the 2^nd defendant. From evidence available on record, the schedule property was held to be joint family property.

It was held by the court that since the property is a joint family property and the claim only seeks to proclaim the property as joint family property and not to claim the property to be their own property, the rigor of section 4 of the Benami Act cannot have any application to the facts of the case.

28. Noise Pollution – Right to Life will include an atmosphere free from noise pollution. [Constitution of India; Article 21]

Ajay Marathe and Ors. vs. UOI and Ors. (01.09.2017 – BOMHC) AIR 2018 (Bombay) 117 (FB)

If anyone increases his volume of speech and that too with the assistance of artificial devices so as to compulsorily expose unwilling persons to hear a noise raised to unpleasant or obnoxious levels then the person speaking is violating the right of others to a peaceful, comfortable and pollution-free life guaranteed by Article 21. The right to live in an atmosphere free from noise pollution is a part of Article 21.

29.  Registration – Memorandum of Understanding – No immovable property getting transferred – Registration not required. [Registration Act, 1908; Section 17; Maharashtra Stamp Act, 1958; Section 3, 33]

Yuvraj Developers and Ors. vs. Gavtya Dhondu Mhatre and Ors. AIR 2018 (NOC) 717 (BPM.)

The facts of the case are that a ‘Memorandum of Understanding’ for agreement to lease was not registered and, therefore, the bar of section 49 of the Registration Act is attracted i.e. no effect would be given to the immovable property mentioned in the unregistered document and, secondly, also on the ground that, in order to fix the valuation, the document needs to be sent for impounding, u/s. 33 of the Maharashtra Stamp Act, 1958, for payment of proper stamp-duty.

It was held that documents mentioned under the Maharashtra Stamp Act, 1958 can be chargeable with the stamp-duty and the said provision refers to the instruments mentioned in ‘Schedule-1’, which are chargeable under the Act. It is submitted that, ‘Schedule-1’ does not refer to the ‘Memorandum of Understanding’, which, ultimately, is leading to the ‘Agreement of Lease’ and hence, according to him, if the instrument is not chargeable with the stamp-duty, under the provisions of section 3 of the Maharashtra Stamp Act, 1958, then, in no case, it can be impounded. As the impounding of the MOU was sought on the basis that, under the said MOU, the possession was delivered and, therefore, the ‘Explanation’ to Article 25 was invoked. However, as that analogy cannot be accepted, considering the provisions of Articles 3 and 36 of the Maharashtra Stamp Act, 1958, the impugned order passed by the Trial Court does not call for any interference.

30. Transfer of Property – Unregistered gift deed – Substance over form – Valid if compliant with law. [Transfer of Property Act, 1882; S.122, 123]

Topden Pintso Bhutia vs. Sonam Plazor Bhutia (17.08.2017 – SIHC) AIR 2018 SIKKIM 1

The Plaintiff and the Defendant are blood brothers, the Defendant being the Plaintiff’s elder brother. The Plaintiff laid claim to the suit land alleging that his mother had verbally gifted him the property in the year 1980. His mother passed away in the year 2008. The Plaintiff claims possession of the suit land since 1980, to the exclusion of his other siblings. After his mother’s demise, he approached the Office of the Sub-Divisional Magistrate, Ravangla, South Sikkim, for mutation of the suit property in his name. This was objected to by the Defendant, inter alia, on the ground that, vide a document dated 21-12-2001, executed by his Late father, allegedly in the presence of the Defendant and his brothers, the suit property was in fact gifted to him. It is this document, that the Defendant seeks to validate on the basis of the aforesaid Notification which clearly provides that, an unregistered document may, however, be validated and admitted in Court to prove title or other matters contained in the document, on payment of penalty up to fifty times the usual registration fee.

The Court held that the document sought to be validated, being bereft only of registration, ought in substance, to be compliant of the provisions of section 122 and section 123 of the Transfer of Property Act, 1882. It further held that it is not every document that has not been registered which can be validated by the order of the Court, but only those documents which bear compliance to the legal provisions.