A ‘lease’ cannot be equated to ‘property’ under Transfer of Property Act: High court of Calcutta

When estimating the cost of stamp duty of a gift deed, a leasehold share cannot be gifted under the definition of property as per the Transfer of Property Act. This was held in the case of Atma Ram Sarag v. State of West Bengal and Ors.[WPO No. 509 of 2019] by Hon’ble Justice Sabyasachi Bhattacharyya in the High court of Calcutta.

The governor of West Bengal granted lease of a plot in favor of a person who then sold his leasehold rights to the petitioner in this case. The petitioner executed a gift deed of his undivided share in the aforementioned property for his brother. While carrying out the steps required for legalizing the gift deed made, the petitioner approached the registrar for issuing the stamp duty. He was told that the cost would be assessed at half percent of market value normally followed for gift deeds executed in favor of blood relations. However, after depositing the money the petitioner was told that the registration process could not be completed as the amount ascertained had to be at 6 percent value of the market value. This petition was filed to reduce the amount of stamp duty back to being half percent of market value.

As per Article 33(i) of Schedule of the Indian stamp Act, the stamp duty should be calculated at half percent of market value in the said case. The major issue here was around the applicability of the term ‘property’ for a leasehold share gifted.

The counsel relied upon the case of Umrao Singh v. Kacheru Singh and Ors. AIR 1939 All 415 (FB) where it was held that the “word property may be used in the objective sense of concrete thing which is th subject of ownership or other right, or it may be used in the sense of the rights and interests of the ownership of the owner or other persons in that property”.

The court stated that to determine whether the article of the act is applicable to the present transfer, a close analysis of the description of instruments as per the respective statues is necessary. In ordinary state of affairs, the court would award.

The court explained that the general concepts of property in jurisprudence are fluid in nature and encompass the entire gamut of the bundle of rights flowing from ownership of an immovable property. It further stated that “a lease, for whatever period, cannot be elevated to the plane of ‘property’ as envisaged in Section 122 of the Transfer of Property Act, which governs gifts. ‘lease’, as defined in Section 105 of the Transfer of Property Act, on the other hand, is a transfer of a ‘right to enjoy’ such property, made for a certain time, as opposed to the transfer of the property itself”.

In view of the specific distinction between “gift” and “lease”, as made in the Transfer of Property Act, the former being a transfer of the property itself while the latter a transfer of right to enjoy property, the general propositions advanced by the petitioner did not hold ground in this case. It finally stated that there was “no illegality on the part of the Registering Authorities in demanding stamp duty in terms of Article 63 of Schedule IA of the Stamp Act” and refusing the final registration of the document-in-question on the ground of insufficiency of stamp duty.

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Writ petition not maintainable in high court where an alternative remedy encouraged on grounds of Public Policy: High court of Karnataka

A petition filed under Section 482 of Cr.P.C in a high court is not maintainable when there is an alternative remedy so as to further a public policy, based on Precedent set by Supreme Court. This was reiterated in the High court of Karnataka in the case of India Awake for Transparency and Azim Premji and Ors. [Writ Petition No. 12073 of 2020] by a single bench consisting of Hon’ble Justice P.S Dinesh Kumar.

The facts of the case are that the NGO which is the petitioner here had filed a case before the trial court in January 2020, the proceedings for which go stayed by the Supreme Court in the month of December in the same year. This petition was filed against the director of Enforcement Directorate, to institute a special investigation team and look into offences of money laundering by the alleged Mr. Azim Premji who is the second respondent here.

The petitioner has prayed for a direction against Director of Enforcement to register a case of money laundering by referring to Section 44 of the Prevention of Money Laundering Act, 2002 and submitted that stay of trial court by the apex court is Special Case is no reason to wipe out the offences committed by the private respondents.  The counsel further stated that the case involved a highe amount worth Rs.31342 crores and the enforcement agency has not taken any action even when the case is pending for more than a year now.  Hence the writ is maintainable.

The counsel for the respondent, on the other hand, relied upon the landmark judgement of Sarguja Transport Service vs. State Transport Appellate Tribunal [(1987) 1 SCC 5] wherein a petition was not maintainable on the ground of public policy. Further he pointed out that the writ petition previously filed was withdrawn unconditionally leaving no room for filing a new one. The three criminal petitions filed by the petitioner were clubbed a Special Case No.69/2020 and that order after being challenged was also dismissed by this same court.

Most importantly, the petitioner has the option of another remedy which is filing PCR before the Civil Court under section 190 (1) (c) and Section 156(3) under the Code of Ciriminal Procedure which they have already availed. The matter is pending in the court and this approach is efficacious as per normal procedure.

In Sakiri Vasu vs. State of Uttar Pradesh and others [(2008) 2 SCC 409 ], the apex court held that “when someone has a grievance that his FIR has not been registered and he rushes to High Court with a writ petition or a petition under section 482 Cr.P.C, the High Court should not encourage this practice and ordinarily refuse to interfere in such matters and relegate the petitioner to his alternative remedy”.

The courts said that the ratio of this case was applicable to the facts of this case also. In the view of the above arguments, it said that the “preliminary objection by learned advocate for the private respondents that this writ is not maintainable is sustained”.

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Power to refuse second cross-examination of any party by trial courts is not absolute: High court of Karnataka

The power of the trial courts to disallow to cross examine a defendant is subject to certain exception and is not absolute. This was adjudicated by the High Court of Karnataka in the case TK Ramakrishnappa v K Gopalagowda [W.P No 27796 of 2019] by Hon’ble Justice Krishna S.Dixit.

This judgement was made in response to a writ petition made to quash an order which disallowed the first defendant of the case from being cross-examined. The reasoning provided by the lower court for this was “The defendants in the affidavit annexed to the application contended that even though they are supporting the case of plaintiff but disputing the measurement. It is so, why they have not cross examined PW.1 in this regard is not stated. It shows that they filed this application only to drag the proceedings. In the same the plaintiff was not cross examined. If the contention raised is really true, definitely they would cross examine the concerned person on this point. Instead of the same, now they wants to cross examine the other person. This shows that they have not approached this court with clean hands. If the plaint averment not disclosed the proper measurement as alleged by the defendant, then they have to cross examine PW1. Hence the defendant has not made an y reasonable grounds or sufficient cause to allow the application”

The high court heavily criticized the reasoning given by the lower court in order to refuse permission for cross-examination. For this it relied upon multiple scholarly legal texts that deal with the law of evidence. One such source was the works of Mr. Rupert Cross, an Oxford Professor of Law and author of treatise of “EVIDENCE”. Relevant portion from this book highlighted by the judge were “All witnesses are liable to be cross- examined with very few exceptions. A witness otherwise is probably liable to be cross-examined, not merely by the opponent of the party calling him, but also by all other parties.”

The court then went on to list the situations where the witness may not be cross-examined. The most notable instances are (1) A witness summoned to produce merely to produce a document (2) a witness sworn by mistake (3) one whose examination has been stopped by the judge before any material question has been put which not liable to cross examination. (4) a witness giving replies to answer to question by the court only be cross-examined with leave(5) A witness who has given no evidence in chief, may not be cross-examined as to credit (6) Under s.138 of the Indian Evidence Act, cross examination follows chief-examination.

It further stated that the right to cross examination is not an objective thing and “it can vary depending upon the pleadings”. However, this should not be conditioned to the state of the parties and the court rightly observed that this aspect was not taken into consideration by the lower court thereby making it liable to be faltered.

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A Suit for defamation must be tried speedily and cannot be allowed to drag indefinitely: Karnataka High Court

A court can post a matter for arguments in a case of defamation if the defendant repeatedly fails to produce evidence in the court when given the opportunity to lead the evidence. This was decided by the High Court of Karnataka in H.D Devegowda v. Nandi Infrastructure Corridor Enterprise Ltd. [W.P No. 725 of 2021] by a single bench consisting of Hon’ble Justice Krishna S. Dixit.

The facts of the case are that the respondent had filed a defamation suit and had produced oral and documentary evidences successfully. However, the petitioner being the sole defendant in the original suit did not avail the opportunity given to lead the evidence. The judge of the civil court posted matters for arguments thereby closing the window to allow further evidences. This petition has been filed under Section 226 and Section 227 of the Constitution to set aside the order and permit to adduce the evidence of the petitioner.

This court elaborated on five grounds to explain why it was unfit to interfere in the order made. Firstly, it stated that the original suit of defamation was filed in the year 2012 for damages worth Rupees Ten Crore. The issues were framed and evidence was procured from the plaintiff years ago. But the petitioner and his counsel remained absent as a result of which the case was posted for arguments.

Secondly, after the suit reached the argument stage, no plausible reason was given by the petitioner for not producing evidence within the stipulated time. Thirdly, the judge of the civil court has rightly pointed out that such leniency only proves that the intention of the petitioner was to drag the suit and delay the verdict of the court. This is reflected by the language used in the order sheet and the writ court cannot dispute with the learned judges of the courts below.

Fourthly, and perhaps most importantly, the court said that a suit of defamation must be tried as soon as possible because here the stakes are high. This is due to the fact that the reputation of a person is most sacrosanct and right to reputation is a part of Article 21 of the Constitution of India. It further stated “Any claim for redressal for the hurt of reputation merits speedier consideration and ideally speaking, before the public memory fades; in defamation suits, awards of damages in terms of money hardly constitutes a full recompense for the injury suffered; delayed justice makes it still worse; this is an added reason for the speedy trial of such suits; they cannot be allowed to be dragged on indefinitely. This makes the order unfit for challenge”.

Fifthly, the court referred to judgement made by Supreme Court in Sadhana Lodh v. National Insurance Co. Ltd & Anr [(2003) 3 SCC 524 ] where it was held that as long as the lower court functions in accordance with rules  and reasons of justice, the Writ court cannot conduct a deeper examination of the merits of the case.

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Petition under Article 226 against rejection of nomination for Village Panchayat elections is not maintainable: Bombay High Court

The petition before the High Court under Article 226 of the Constitution challenging the rejection of nomination paper by returning officer to contest village panchayat elections, would not be maintainable. This decision was taken by the Bombay High Court in the case of Karmaveer Tulshiram Autade and others vs. State Election Commission & others [Writ Petition no.26 of 2021] presided over by the bench of Hon’ble Chief Justice Dipankar Datta, Justice A.S. Gadkari & Justice G.S. Kulkarni.

In the instant case, the petitioners had approached the High Court challenging the orders passed by the returning officer of the village panchayat rejecting their nomination forms to contest elections to Bhose Village Panchayat. The State Election Commission had challenged the maintainability of the petitions. Petitioners had referred to the case of Vinod Pandurang Bharsakade vs. Returning Officer, Akot and Anr. and Sudhakar s/o. Vitthal Misal vs. State of Maharashtra & Ors. and Smt. Mayaraju Ghavghave vs. Returning Officer.

The issue which rose in front of the bench was whether the writ petitions filed under Article 226 of the Constitution would be maintainable challenging the orders of rejection of nomination forms in a village panchayat election.

There were arguments including that petitioners can’t approach HC for grievances under Article 226 because it is neither a civil right nor a fundamental right and there was an argument that returning officers reject nomination papers for absurd reasons possibly because they are ignorant of relevant laws or because of extraneous considerations and hence, the High Court must intervene and lay down situations where writ petition under Article 226 could be entertained.

High Court opined that “The legislature expresses the will of the people through legislation enacted by it. Any issue which could be dealt with by the legislature cannot be solved by judicial fiat, having regard to Article 243-O(b) of the Constitution read with the MVP Act.”

Therefore, HC took the decision that Petitions before High Courts under Article 226 of the Constitution challenging the rejection of nomination paper by returning officer to contest village panchayat elections, would not be maintainable, by the virtue of Article 243-O of the Constitution which bars interference from courts in electoral matters except in the manner provided by the law made by the State legislature.

HC Stated that “Article 243-O(b) is a bar on an entertaining petition under Article 226 challenging the rejection of nomination in village panchayat election”.

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