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.