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In the case of Ganesan v. State Represented by its Inspector of Police (CRIMINAL APPEAL No. 680 of 2020), the Supreme Court had held that the accused can be convicted based on the sole testimony of the victim if it is reliable and trustworthy.

The facts of the case are that the appellant herein is the original accused and was tried by the learned Fast Track Mahila Court, Dharmapuri for the offenses punishable under Section 7 read with Section 8 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the “POCSO Act”). That relying upon the deposition of PW3, who was the victim herself, was studying in 5th standard and aged 13 years, convicted the accused of the offense under Section 7 of the POCSO Act and sentenced him to undergo three years rigorous imprisonment, which is the minimum sentence provided under Section 8 of the POCSO Act. Aggrieved by the judgment of the trial court, out of dissatisfaction, the accused had preferred an appeal before the High Court. It was therefore submitted on behalf of the accused that he is unable to pay the compensation of rupees one lakh to the victim girl and pleaded leniency and requested to set aside the order of compensation awarded by the learned trial Court.

Understanding the situation the High Court had modified the judgment and order passed by the learned trial Court with respect to compensation only and modified the said order to the effect that compensation amount shall be paid by the State to the victim girl and thereafter if the State finds that the accused has got sufficient means, the same can be recovered from the accused under the Revenue Recovery Act. Following the same, the High Court had dismissed the appeal so far as the conviction and imposition of a sentence of three years rigorous imprisonment is concerned.

Again feeling aggrieved and dissatisfied by the High Court judgment, the appeal was filed subsequently to the supreme court.

The court, in this case, had held that “On evaluating the deposition of PW3 – victim on the touchstone of the law laid down by this Court in the aforesaid decisions, we are of the opinion that the sole testimony of the PW3 – the victim is absolutely trustworthy and unblemished and her evidence is of sterling quality.”

“Therefore, in the facts and circumstances of the case, the learned trial Court has not committed any error in convicting the accused, relying upon the deposition of PW3 – victim. The learned trial Court has imposed the minimum sentence provided under Section 8 of the POCSO Act. Therefore, the learned trial Court has already shown the leniency. At this stage, it is required to be noted that allegations against the accused which are proved from the deposition of PW3 are very serious, which cannot be permitted in a civilized society. Therefore,

Considering the object and purpose of the POCSO Act and considering the evidence on record, the High Court has rightly convicted the accused for the offense under Section 7 of the POCSO Act and has rightly sentenced the accused to undergo three years R.I. which is the minimum sentence provided under Section 8 of the POCSO Act.

It had also been held that “Now so far as the amount of compensation awarded by the learned trial Court is concerned, the High Court has modified the same and has directed the State to pay the compensation to the victim and thereafter to recover the same from the accused under the provisions of the land revenue if it finds that the accused has sufficient means. It is the case on behalf of the accused that the accused is very poor and has no property. If that be so, he is not to worry.”

“ The aforesaid has been taken care by the High Court by modifying the judgment and order passed by the learned trial Court. Now so far as the reliance placed upon the decision of this Court in the case of Vinod Kumar (supra) and the reliance placed upon Order 41 Rule 31 CPC is concerned, as we ourselves have heard the appeal on merits and considering the fact that out of three years R.I., the appellant has already undergone two years and three months (approximately), the said decision shall not be of any assistance to the accused.

In view of the above and for the reasons given above, the present appeal deserves to be dismissed and is accordingly dismissed.”

17 Oct

Constitutional validity of Section 43(5) of RERA: Punjab & Haryana HC

In the case of Experion Developers Pvt. Ltd. V. State of Haryana and others (CWP No. 38144 of 2018), the Punjab & Haryana HC, had decided upon the constitutional validity under section 43(5) of RERA and Haryana Real Estate ( Regulation and Development) Rules, 2017.

The facts of the case initiate with a writ petition under Article 226 of the Constitution which mostly deals with the interpretation of the provisions of the Real Estate (Regulation and Development) Act, 2016 (hereinafter ‘the Act’) as well as the Haryana Real Estate (Regulation and Development) Rules, 2017 (hereinafter ‘the Haryana Rules’). In some of these petitions, the constitutional validity of the proviso to Section 43 (5) of the Act, is challenged. Correspondingly the orders had been passed by the Real Estate Appellate Tribunal (hereinafter ‘Appellate Tribunal’) rejecting the prayer of the Petitioners for waiver of the pre-deposit for entertaining the appeal against an order of either the Real Estate Regulatory Authority (‘Authority’) or the Adjudicating Officer (‘AO’), as the case may be.

The Appellate Tribunal has had extended the time for making the pre-deposit while rejecting such prayer. The further prayer in these petitions deals with the undue hardship faced by the Petitioners, the aforesaid orders of the Appellate Tribunal should be interfered with by this Court, in the exercise of its jurisdiction under Article 226 of the Constitution of India, and the Appellate Tribunal be directed to entertain the Petitioners’ appeals without insisting on the pre-deposit.

A challenge has been laid to Rules 28 and 29 of the Haryana Rules as well as to forms CRA and CAO as amended by the Haryana Real Estate (Regulation and Development) Amendment Rules, 2019 notified on 12th September 2019 (‘Haryana Amendment Rules 2019’) as being ultra vires the Act, in some of the petitions. The further issue urged in these petitions concerns the scope and jurisdiction of the Authority and the AO respectively in relation to complaints under the Act. In these petitions, there is a corresponding prayer for quashing the orders passed by the Authority as being without jurisdiction.

The court, in this case, had held “It must be noticed straightway that while Section 43 (5) of the Act envisages the filing of an appeal before the Appellate Tribunal, against the order of the Authority or the AO, by any “person”, the Explanation appended thereto clarifies that for the purpose of Section 43 (5), ‘person’ shall include an association of allottees or any voluntary consumer association registered under any law for the time being in force. The proviso to Section 43 (5) of the Act applies only where the “promoter” intends to appeal against an order of the Authority or the AO.”

Thus the judges also rejected the argument that imposing the condition only on “promoters” was discriminatory. They held that “The DB in M/s. Lotus Realtech Pvt. Ltd. (supra) also negatived the plea that requiring only the promoters who are in appeal to make the pre-deposit as a condition to entertaining their appeals by the Appellate Tribunal, was discriminatory.”

“The proviso to Section 43 (5) of the Act clearly states that the pre-deposit is required to be made “before the said appeal is heard.” In other words, the Appellate Tribunal is not obliged to proceed to ‘entertain’ or hear an appeal that has been filed before it, if the promoter, who has filed such appeal, fails to comply with the direction for making the pre-deposit in terms of the proviso to Section 43 (5) of the Act.”

Thus the court had come down to the following conclusion :

“The challenge to the constitutional validity of the proviso to Section 43 (5) of the Act is rejected.
The orders of the Appellate Tribunal declining to grant the Petitioners further time to make the pre-deposit beyond the date as stipulated by the Appellate Tribunal or where the appeals have been rejected on account of the Petitioners’ failure to make the pre-deposit as directed, are hereby affirmed. Nevertheless, this Court has in paragraphs 94 and 95 hereafter issued directions giving one last opportunity to the Petitioners to make the pre-deposit in a time-bound manner.
In the facts and circumstances of the individual cases, no grounds have been made out to persuade this Court to exercise its writ jurisdiction under Article 226 of the Constitution to grant any relief in respect of waiver of pre-deposit. In none of the cases is the Court satisfied that a case of ‘genuine hardship’ has been made out.
On the interpretation of the provisions of the Act, the conclusions in this judgment on the scope of jurisdiction of the Authority and the AO respectively, and given the prayers in the individual complaints from which these writ petitions arise, in none of the cases the Authority can be held to have exercised a jurisdiction that it lacked and its orders cannot be said to be without jurisdiction. No interference under Article 226 is warranted on that score.
As regards the merits of the order of the Authority the remedy of an appeal before the Appellate Tribunal is in any event available. Even where according to the party aggrieved the Authority lacked jurisdiction to decide the complaint, it would be for the Appellate Tribunal to decide that issue in light of the legal position explained in this judgment on the respective adjudicatory powers of the Authority and the AO. In such instance too the pre-deposit would be mandatory.
A collective reading of provisions makes it apparent that when it comes to refund of the amount, and interest on the refund amount, or directing payment of interest for delayed delivery of possession, or penalty and interest thereon, it is the Authority which has the power to examine and determine the outcome of a complaint. When it comes to question of seeking the relief of compensation or interest by way of compensation, the AO alone has the power to determine it on a collective reading of Sections 71 and 72 of the Act.
Rules 28 and 29 of the Haryana Rules as amended seek to give effect to the harmonized construction of the provisions of the Act concerning the powers of the Authority and of the AO. They are not ultra vires the Act. The Court rejects the challenge to the validity of the amended Rules 28 and 29 of the Rules and the amendments to Forms CRA and CAO.
A complaint yet to be decided as on the date of the notification of the Haryana Amendment Rules 2019, will now be decided consistent with the procedure outlined under the amended Rules 28 and 29 of the Haryana Rules.
The challenge to Sections 13, 18 (1) and 19 (4) of the Act and Rules 8 and 15 of the Haryana Rules as regards their retroactive applicability to ‘ongoing projects’ is hereby rejected.”

17 Oct

Plea for transfer of case cannot be on apprehension – Supreme Court

In the case of Umesh Kumar Sharma Vs State of Uttarakhand & Ors. [Transfer Petition Crl No. 534-536 of 2019] Supreme Court held that only when fair justice is in peril, a plea for transfer might be considered.

The present petitions were filed under Section 406 of the Code of Criminal Procedure, 1973 read with Order XXXIX of the Supreme Court Rules seeking transfer of three criminal cases pending before different courts in Dehradun to competent courts in Delhi or some other courts outside the State of Uttarakhand.

The petitioner submitted that he apprehends a threat to his life and will be prejudiced in conducting his defense in the courts at Dehradun. The basic premise for such apprehension was on account of his work as an investigative journalist against the Ruling dispensation, the State was targeting the petitioner for vindictive prosecution. It was pointed out that as a journalist the petitioner has conducted sting operations against the Chief Minister, his relatives, and associates in the State of Uttarakhand and therefore he was being targeted for malicious prosecution within the State.

The Respondent State submitted that the petitioner has failed to demonstrate how and in what manner, he will be prejudiced if the trials continue in the courts at Dehradun. According to the respondent, the effort of the petitioner was filed only to delay the proceedings. It was also pointed out that since the investigation in all three cases is concluded and the charge sheet has been filed, the apprehension of interference in the cases by the State administration as contended was wholly unfounded. The government advocate then submitted that the transfer of criminal cases should be rare and exception since it impacts the credibility of the Courts in Uttarakhand.

The court referred to the list of cases pending against the petitioner. Out of those cases, 17 cases were related to the State of Uttarakhand, 4 cases were from the State of Uttar Pradesh, 5 cases relate to the State of West Bengal, 2 cases were from Delhi out of which one is under investigation of the CBI, and another one at Ranchi, Jharkhand. Whether those cases are without merit or otherwise, can be determined only through trial. However, the numbers do suggest that the petitioner is not an ordinary person. It was also noted that the State had withdrawn prosecution in many cases filed against the petitioner.

The court relied on the case of Maneka Sanjay Gandhi vs. Rani Jethmalani (1979) 4 SCC 167, where the three-Judge Bench, had enunciated the law on transfer under Section 406 CrPC with the following observation – “Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances”.

The court observed that “The above legal enunciations made it amply clear that transfer power under section 406 of the Code was to be invoked sparingly. The court however will have to be fully satisfied that impartial trial is not possible. Equally important is to verify that the apprehension of not getting a level playing field, is based on some credible material and not just conjectures and surmises. While assurance of a fair trial needs to be respected, the plea for transfer of case should not be entertained on mere apprehension of a hyper sensitive person.”

Court further re-iterated that, “While considering a plea for transfer, the convenience of parties would be a relevant consideration. It can’t just be the convenience of the petitioner but also of the Complainant, the Witnesses, the Prosecution besides the larger issue of trial being conducted under the jurisdictional Court. When relative convenience and difficulties of all the parties involved in the process are taken into account, it is clear that the petitioner has failed to make out a credible case for transfer of trial to alternative venues outside the State.”

Finally, after hearing both the parties court held that, “When the nature of the three cases are examined, it is seen that two of the cases are property and Will related matters. One of this case is pending for last over a decade. Therefore, this court finds it difficult to accept that the cases are on account of journalistic activities of the petitioner. In view of the forgoing, these Transfer Petitions are dismissed.”

16 Oct

Wife can claim the property belonging to the husband’s relatives – SC

In the case of Satish Chander Ahuja v. Sneha Ahuja, (CIVIL APPEAL NO.2483 of 2020), the Supreme Court had held that in the matter of domestic violence cases, the wife is entitled to claim the right of residence which belongs to relatives of the husband. The judges, in this case, were Justice Ashok Bhushan, R. Subhash Reddy, and M.R. Shah.

The facts of the case initiate from the situation when the appeal has been filed by Satish Chander Ahuja, the plaintiff questioning the judgment of Delhi High Court dated 18.12.2019, which had set aside the decree granted in favor of the plaintiff dated 08.04.2019 under Order XII Rule 6 of Civil Procedure Code, decreeing the suit filed by the plaintiff for a mandatory and permanent injunction. The High Court after setting aside the decree of the Trial Court has remanded the matter back to the Trial Court for fresh adjudication in accordance with the directions given by the High Court. The plaintiff aggrieved by the judgment of the High Court has come up in this appeal to SC.

The appellant by deed dated 12.01.1983 purchased property bearing No.D-1077, New Friends Colony, New Delhi. The son of the appellant, Raveen Ahuja was married to the respondent, Sneha Ahuja on 04.03.1995. After marriage, the respondent started living on the first floor of the house No.D-1077, Friends Colony, New Delhi along with her husband. There being marital discord between Raveen and Sneha, in July 2014, Raveen moved out of the first floor and started staying in the guest room of the ground floor.

A separate kitchen was started by the respondent, in the year 2004, on the first floor of the house. Raveen, the husband of the respondent filed a Divorce Petition under Section 13(1)(ia) and (iii) of Hindu Marriage Act, 1955 for a decree of divorce on the ground of cruelty against the respondent, Sneha Ahuja which is still believed to be pending. After filing of the Divorce Petition, the respondent also filed an application under Section 12 of Act, 2005 impleading Raveen Ahuja as respondent No.1, Shri Satish Ahuja, respondent No.2 and Dr. Prem Kanta Ahuja (mother-in-law of the respondent), respondent No.3. In the complaint, it was alleged that Sneha Ahuja has been subjected to severe emotional and mental abuse by the respondents. In the application respondent prayed for several orders under the Protection of Women from Domestic Violence Act Act, 2005. At the same time the appellant filed a suit, impleading the respondent as sole-defendant for mandatory and permanent injunction and also for recovery of damages/mesne profit. The plaintiff was a senior citizen of 76 years of age, and had undergone angioplasty twice and suffers from hypertension and high blood pressure. Thus the plaintiff pleads that the defendant had filed a false and a frivolous case against him and his wife, therefore he prays for the removal of the defendant suit property so as to live a peaceful life.

The judges in this held that :

“In the case of in S.R. Batra and Anr. Vs. Taruna Batra, (2007) 3 SCC 169, where two-Judge Bench of this Court held that the wife is entitled only to claim a right under Section 17(1) to residence in a shared household and a shared household would only mean the house belonging to or taken on rent by the husband or the house which belongs to the joint family of which the husband is a member.”

“It is submitted that the complaint under the Act, 2005 filed by the respondent was only a counter blast to the Divorce Petition dated 28.11.2014 filed by the husband of the respondent. It is submitted that Sections 17 and 19 of the Act, 2005 do not contemplate a proprietary or ownership right in the shared household for the aggrieved person. Shri Jauhar further submits that her claim for alternate accommodation can be made qua husband and not qua the father-in-law because her relationship in the household emanates pursuant to the marriage and father-in-law cannot be under a statutory obligation to provide for the residence and maintenance of daughter-in-law.”

Thus “from the submissions of the learned counsel for the parties following questions arise for determination in this appeal:

(1) Whether definition of shared household under Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 has to be read to mean that shared household can only be that household which is household of joint family or in which husband of the aggrieved person has a share?

(2) Whether judgment of this Court in S.R. Batra and Anr. Vs. Taruna Batra, (2007) 3 SCC 169 has not correctly interpreted the provision of Section 2(s) of Protection of Women from Domestic Violence Act, 2005 and does not lay down a correct law?”

Thus the court had held “Both the above questions being inter-related are being taken together. We may recapitulate the facts of the present case in reference to shared household. The suit property was purchased by appellant in the year 1983 in his name. The respondent got married to the son of appellant on 04.03.1995 and after marriage she was living in first floor of suit property. Till July 2004, the husband of respondent also lived in first floor where after due to marital discord, he shifted in the guest room on the ground floor. In the suit filed by the appellant for mandatory and permanent injunction, appellant pleaded that he is the sole owner of the house and prayed for removal of respondent, his daughter-in-law from the first floor of the house. The respondent had filed a written statement in the suit and claimed that the suit property is a shared household where the respondent had right to reside.”

The definition of “shared household given under Section 2(s) as noticed above beginning with expression “shared household means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes…………….”

Thus “From the above discussions, we arrive at following conclusions:

(i) The pendency of proceedings under Act, 2005 or any order interim or final passed under D.V. Act under Section 19 regarding right of residence is not an embargo for initiating or continuing any civil proceedings, which relate to the subject matter of order in terim or final passed in proceedings under D.V. Act, 2005.

(ii) The judgment or order of criminal court granting an interim or final relief under Section 19 of D.V. Act, 2005 are relevant within the meaning of Section 43 of the Evidence Act and can be referred to and looked into by the civil court.

(iii) A civil court is to determine the issues in civil proceedings on the basis of evidence, which has been led by the parties before the civil court.

(iv) In the facts of the present case, suit filed in civil court for mandatory and permanent injunction was fully maintainable and the issues raised by the appellant as well as by the defendant claiming a right under Section 19 were to be addressed and decided on the basis of evidence, which is led by the par ties in the suit.

In view of the foregoing discussions, we are of the considered opinion that High Court has rightly set aside the decree of the Trial Court and remanded the matter for fresh adjudication. With the observations as above, the appeal is dismissed. No Costs.”