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SUPREME COURT QUASHED THE JUDGEMENT OF HIGH COURT AND AWARDED THE EXTENSION OF TIME IN FILING THE WRITTEN STATEMENT.

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CASE NAME: ADITYA KHAITAN & ORS. VERSUS IL AND FS FINANCIAL SERVICES LIMITED

CASE NUMBER: CIVIL APPEAL NOS. 6411-6418 OF 2023

DATED ON: OCTOBER 03, 2023

QUORUM: HON’BLE JUSTICE J.K. MAHESHWARI & JUSTICE K.V. VISWANATHAN

INTRODUCTION:

The appeals challenge the High Court’s decision to dismiss applications for taking on record their written statements in a civil suit. The court ruled that the 30-day period for filing written statements had expired on 08.03.2020. The court also ruled in Sagufa Ahmed and Others Vs. Upper Assam Plywood Products Private Limited and Others (2021) 2 SCC 317, since the orders of this that the order dated 23.03.2020, effective from 15.03.2020, would not benefit the applicants/defendants since the limitation period had expired. The court also ruled that the court’s orders under Article 142 of the Constitution of India only extended the period of limitation, not the period up to which delay can be condoned.

FACTS OF THE CASE:

The plaintiff, IL and FS Financial Services Limited, filed a suit for recovery of money and consequential reliefs in C.S. No. 177 of 2019 against nine defendants. The 30-day period for filing written statements expired on 08.03.2020 and the condonable period of 90 days expired on 06.06.2020.

The appellants filed applications for the defendants on 20.01.2021, requesting an extension of the time for the defendants’ written statements. The reasons for this were the declaration of COVID-19 as a pandemic, the Government of India’s advisories, the Disaster Management Act, the lockdown imposed by the Government of West Bengal, and the closure of the answering applicant’s office.

The affidavits relied on the court’s order dated 23.03.2020 and 10.07.2020, which extended the period of limitation until further orders. The plaintiffs opposed these applications, arguing that the orders would not help since the limitation period had expired before 15.03.2020. The plaintiff relied on the judgment of 18.09.2020 in Sagufa Ahmed to support its contention. The High Court accepted the plaintiff’s stand but did not take the written statements on record.

LEGAL PROVISIONS:

CONSTITUTION OF INDIA

Article-142: Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc.-

(1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.

(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.”

CODE OF CIVIL PROCEDURE

ORDER 5 RULE 1(1): Summons.— When a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, within thirty days from the date of service of summons on that defendant. Provided that no such summons shall be issued when a defendant has appeared at the presentation of plaint and admitted the plaintiff’s claim

Order 8 Rule 1:Written statement.- The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence:

Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the court, for reasons to be recorded in writing and on payment of such costs as the court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the court shall not allow the written statement to be taken on record.”

ORDER 8 RULE 10: Procedure when party fails to present written statement called for by Court.—Where any party from whom a written statement is required under rule 1 or rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up.

COMMERCIAL COURT ACT:

Section – 16: Amendments to the Code of Civil Procedure, 1908 in its application to commercial disputes-

(1) The provisions of the Code of Civil Procedure, 1908 (5 of 1908) shall, in their application to any suit in respect of a commercial dispute of a Specified Value, stand amended in the manner as specified in the Schedule.

(2) The Commercial Division and Commercial Court shall follow the provisions of the Code of Civil Procedure, 1908 (5 of 1908), as amended by this Act, in the trial of a suit in respect of a commercial dispute of a Specified Value.

(3) Where any provision of any Rule of the jurisdictional High Court or any amendment to the Code of Civil Procedure, 1908 (5 of 1908), by the State Government is in conflict with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), as amended by this Act, the provisions of the Code of Civil Procedure as amended by this Act shall prevail.

ISSUES RAISED:

  • Whether the High Court was justified in rejecting the application for extension of time dated 20.01.2021 and in not taking the written statements on record.
  • Whether the appellants are allowed to file the written statement after the expiration the limited time period in the special circumstances or not.

CONTENTION OF APPELLANT:

Mr. Sanjoy Ghose, Senior Counsel for the appellants, used the judgment in Prakash Corporates vs. Dee Vee Projects Limited, (2022) 5 SCC 112, to argue that extraordinary measures are crucial in extraordinary circumstances. The court noted that orders of 23.03.2020, 06.05.2020, and 10.07.2020 were addressed in the same In re: Cognizance for Extension of Limitation. The court distinguished Sagufa Ahmed’s case (supra) in paras 28.1, 28.2 and 33.4 of Prakash Corporates (supra), stating that the period envisaged in the order dated 23.09.2021 should be excluded from computing the period of limitation even for filing the written statement. The court ruled that the decision in Sagufa Ahmed is irrelevant to the present case, as the extended period expired on 06.06.2020.

CONTENTION OF RESPONDENT:

Mr. Sahil Tagotra, learned Counsel for the Respondent reiterated the findings of the High Court and submitted that the applicants have forfeited their right to file the written statements and the hon’ble High Court justified in rejecting the application for extension of time dated 20.01.2021 and not taking the written statements on record.

COURT’S ANALYSIS:

The Supreme Court has extended the deadlines for statutes of limitations in cases related to the pandemic. The court took suo motu cognizance and issued orders under Article 142 of the Constitution of India, protecting parties’ rights and ensuring their remedies and defenses were not barred. The orders of 23.03.2020 and 08.03.2021 were issued in a case involving Sagufa Ahmed (supra), which extended the limitation prescribed under the Arbitration & Conciliation Act, 1996 and Section 138 of the Negotiable Instruments Act, 1881 until further orders. The court also extended the period between 15.03.2020 and the lifting of lockdown in the jurisdictional area.

The Supreme Court of India has issued directions to address the challenges faced by litigants during the COVID-19 pandemic. The order dated 08.03.2021 extended the period of limitation prescribed under general law or special laws, with effect from 15.03.2020 until further orders. The court believes that the order dated 15.03.2020 has served its purpose and should come to an end.

The court has also excluded the period from 15.03.2020 to 14.03.2021, allowing the balance period of limitation remaining as of 15.03.2020 to become available with effect from 15.03.2021. The period from 15.03.2020 to 14.03.2021 will also be excluded from computing periods prescribed under various laws. The government is also required to amend guidelines for containment zones, allowing for medical emergencies, essential goods and services, time-bound applications, and educational and job-related requirements.

The Court has directed that the period from 15.03.2020 to 14.03.2021 will be excluded from computing the period prescribed under various laws, including the Arbitration and Conciliation Act, 1996, Commercial Courts Act, 2015, and Negotiable Instruments Act, 1881. This decision has a significant impact on the current controversy, as it excludes the period for computing outer limits within which the court or tribunal can condone delay.

The Court in Prakash Corporates (supra) also noted that the order of 08.03.2021 and subsequent orders by a Bench of three Hon’ble Judges were not available for the Bench which decided Sagufa Ahmed’s case. The outer limit within which the court or tribunal can condone delay is 120 days from the date of summons.

JUDGEMENT:

As has been set out hereinabove, summons was served on 07.02.2020, but the 30 days period expired on 08.03.2020 and the outer limit of 120 days expired on 06.06.2020. The applicants filed for written statements and extension of time on 20.01.2021, and the High Court’s judgment needs to be set aside. The principle underlying the court’s orders dated 08.03.2021, 27.04.2021, and 23.09.2021, in In Re: Cognizance for Extension of Limitation would benefit the applicants-defendants.

The Appeals are allowed, and the written statements filed on 20.01.2021, are directed to be taken on record. The suit will proceed with the appeals, and the appeal stands allowed with no order as to costs.

 

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Click here to view the full judgement: ADITYA KHAITAN & ORS. VERSUS IL AND FS FINANCIAL SERVICES LIMITED

JUDGEMENT REVIEWED BY: ABHISHEK SINGH

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Borrower’s Challenge Dismissed: Supreme Court Backs Auction Purchaser in SARFAESI Dispute

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Case Title: PHR Invent Educational Society Vs. UCO Bank & Others

Case No.: Civil Appeal No. of 2024 (Arising out of SLP(C) No. 8867 of 2022)

Dated on: APRIL 10, 2024

Coram: J. B.R. Gavai, J. Rajesh Bindal, J. Sandeep Mehta

Facts:

The case involves a dispute between PHR Invent Educational Society, referred to as the appellant, and UCO Bank, among others, as respondents. The appellant, a successful bidder in an auction conducted by UCO Bank for mortgaged properties, had participated in an auction for properties mortgaged by Dr. M.V. Ramana Rao, referred to as ‘the Borrower,’ due to default in loan repayment. The auction purchaser emerged as the highest bidder and deposited a portion of the bid amount on the auction day. However, the Borrower failed to comply with the DRT directive to deposit a portion of the outstanding dues within a specified period, resulting in the automatic vacation of the interim stay on the sale. Subsequently, the appellant completed the payment and obtained possession of the properties. The Borrower filed a writ petition challenging DRT’s order, which was allowed by the High Court, leading to the restoration of the Borrower’s application under the SARFAESI Act. The appellant appealed against this decision in the Supreme Court, arguing that the Borrower’s writ petition should not have been entertained due to the availability of alternative remedies and the Borrower’s failure to comply with DRT’s directive.

Legal Provisions:

  • Article 226 of the Constitution of India: Confers power upon the High Courts to issue writs, orders, or directions to any authority, government, or person within its jurisdiction for the enforcement of fundamental rights or for any other purpose.
  • Section 17 of the SARFAESI Act: It provides a mechanism for aggrieved borrowers to seek recourse against actions taken by secured creditors, such as banks or financial institutions, under the provisions of the Act.
  • Section 13(4) of the SARFAESI Act: It outlines the procedure that a secured creditor must follow in case of default by the borrower.

Under Section 13(4), if a borrower defaults in repayment of any secured debt to a secured creditor, the creditor may issue a notice to the borrower demanding repayment of the entire outstanding loan amount. The notice provides the borrower with an opportunity to rectify the default within a specified period, which must not be less than 60 days from the date of the notice.

  • Section 18 of the SARFAESI Act: Pertains to the right of appeal against orders of the Debt Recovery Tribunal (DRT).

Contentions of the Appellant:

The contentions of the appellant primarily revolve around two key points. Firstly, they argue that the High Court erred in entertaining the writ petition filed by the Borrower, as there was an alternative statutory appeal available under the SARFAESI Act. They cite precedent cases to support their position that such petitions should not be entertained when alternative remedies exist. Secondly, they asserted that the Borrower’s conduct disqualifies them from equitable relief. Specifically, they highlighted that the Borrower filed the writ petition after the appellant had made full payment and obtained a Sale Certificate for the properties. Therefore, the appellant contends that the writ petition should be dismissed, and their appeal should be allowed.

Contentions of the Respondent:

The respondent, represented by UCO Bank, primarily contends that the High Court erred in entertaining the Borrower’s writ petition when alternative statutory remedies were available under the SARFAESI Act. They argue that the Borrower’s conduct, including the failure to comply with the DRT’s directive regarding depositing outstanding dues, disqualifies them from equitable relief. Additionally, they emphasize that the appellant had completed payment and obtained possession of the properties, warranting dismissal of the Borrower’s writ petition and upholding of the lower court’s decision.

Court’s Analysis & Judgement:

In its analysis, the Hon’ble Court noted that the facts of the case were not in dispute. The Court considered the arguments presented by both parties, emphasizing the principle that the availability of an alternative remedy does not necessarily bar the High Court from entertaining a petition under Article 226 of the Constitution if it serves the interests of justice, citing the judgment in the case of State of U.P. v. Mohammad Nooh. However, it also acknowledged the appellant’s contention that the Borrower’s conduct should disentitle him from equitable relief, particularly considering that the appellant had completed the payment and obtained possession of the properties.

However, after examining the facts and arguments, the Court concluded that the Borrower’s writ petition challenging DRT’s order should not have been entertained, given the availability of alternative remedies and the Borrower’s failure to comply with the DRT’s directive. Therefore, the Court allowed the appellant’s appeal, setting aside the High Court’s decision and affirming the validity of the appellant’s acquisition of the properties through the auction conducted by UCO Bank.

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Judgement Reviewed By- Shramana Sengupta

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MP High Court Mandates Swift Disclosure of Termination Details in Rape Victim’s Case

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Case Title: Shri Lucky Bijolia (Representing Advocate) Vs. The State of Madhya Pradesh Principal Secretary Department of Public Health and Family Welfare & Ors.

Case No.: WRIT PETITION No. 9585 of 2024

Dated on: 30th APRIL, 2024

Coram: HON’BLE SHRI JUSTICE SUBODH ABHYANKAR

Facts:

In this case, a writ petition was filed under Article 226 of the Constitution of India by the petitioner, who is the father of a rape victim, seeking medical termination of his daughter’s pregnancy. The victim, a minor, was abducted on January 28, 2024, and recovered on March 1, 2024. On the same day of her recovery, her Medical Legal Case (MLC) was conducted, revealing her pregnancy. However, the petition seeking termination of her pregnancy was filed on April 8, 2024, more than a month after the pregnancy was detected. The court noted that neither the treating doctor nor the police officer informed the petitioner or the victim’s relatives about the pregnancy and the possibility of termination under the law. The victim’s pregnancy was terminated on April 17, 2024, following court directions. Further, the court criticized the apathetic conduct of the investigating officer and the treating doctor for failing to inform the victim’s family about her right to terminate the pregnancy, which it deemed as a violation of her right under Article 21 of the Constitution of India.

Legal Provisions:

  • Medical Termination of Pregnancy Act, 1971: This Act empowers registered medical practitioners to terminate specific pregnancies and addresses related matters or incidental issues.
  • Article 226 of the Constitution of India: It grants the HCs the power to issue writs, orders, or directions for the enforcement of fundamental rights or for any other purpose within their respective jurisdictions.
  • Article 21 of the Constitution of India: It guarantees the right to life and personal liberty.

Contentions of the Appellant:

The contentions of the appellant, primarily revolved around seeking medical termination of his daughter’s pregnancy, who is the victim of rape. The appellant argued that the victim, being a minor, should have been informed about her right to terminate the pregnancy under the law. They emphasized that despite the victim being abducted and subsequently recovered, there was a significant delay in filing the petition seeking termination of pregnancy, which they attributed to a lack of awareness about legal provisions regarding termination of pregnancy resulting from rape. Moreover, the appellant sought to highlight the responsibility of the investigating officer and the treating doctor in informing the victim’s family about their rights in such cases, arguing that their failure to do so infringed upon the victim’s right to live with dignity as guaranteed by Article 21 of the Constitution of India.

Contentions of the Respondents:

The respondents, contended that they informed the court that the petitioner’s daughter’s pregnancy had already been terminated on April 17, 2024, in compliance with the court’s previous directive issued on April 12, 2024. Further, they contended that during the victim’s MLC examination, the victim’s mother was present and consented to the examination, during which the victim was informed of her pregnancy. However, they acknowledged that the affidavit of the treating doctor was not filed as the doctor had been transferred, but they did not deny that neither the victim’s parents nor the victim herself were orally informed about the pregnancy and its termination options. Moreover, they provided documentation showing that the investigating officer had informed the petitioner about the victim’s pregnancy on March 4, 2024, during an ultrasound examination, but the officer’s memorandum indicated only the pregnancy status without any advice on termination.

Court’s Analysis and Judgement:

Upon its critical analysis, the Hon’ble Court issued directions and mandated that in all cases of rape where the victim is found to be pregnant, she or her parents must be immediately advised by the police officer and treating doctor about her right to terminate the pregnancy under the Medical Termination of Pregnancy Act, 1971. Failure to comply with these directions would be treated as contempt of court. Moreover, the court ordered that the information provided to the victim and her family members must be documented in writing by the investigating officer and treating doctor. Furthermore, the court directed the dissemination of this order to all police stations in Madhya Pradesh and government hospitals. With these directives, the court disposed of the petition.

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Judgement Reviewed By- Shramana Sengupta

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Gauhati High Court rejects petition against Assam Public Service Commission recruitment finding no violation of reservation policy.

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Case title:  RAIHANA AKHTAR VS THE STATE OF ASSAM

Case no.:   WP(C)/3534/2017

Dated on: 3RD May 2024

Quorum:  Hon’ble. MR Justice SANJAY KUMAR MEDHI

FACTS OF THE CASE

The controversy raised in this petition filed under Article 226 of the Constitution of India is in connection with a recruitment process initiated by the Assam Public Service Commission (APSC) for different posts of Lecturers in the Nursing Colleges of Assam. The petitioner has structured his petition on two principal grounds, firstly, violation of the reservation policy and secondly, the mode adopted for such selection.

ISSUES

  • Whether the petitioner’s claims regarding the selection process are factually and legally tenable based on the evidence and submissions provided.
  • Whether the selection based solely on viva-voce was legitimate given the number of applications received and the stipulations in the advertisement.
  • Whether the Assam Public Service Commission (APSC) violated the reservation policy in the selection process for the post of Lecturer in the O&G Department in Nursing Colleges of Assam.

LEGAL PROVISIONS

Constitution of India

Article 226 of the Constitution of India: Provides the High Courts with the power to issue certain writs. The petitioner invoked this article to challenge the recruitment process conducted by the Assam Public Service Commission (APSC). Article 226 allows individuals to seek judicial review of any action by the state or public authorities that they believe violates their fundamental rights or legal entitlements.

CONTENTIONS OF THE APPELLANT

Shri Bhuyan, learned counsel for the petitioner has submitted that amongst the various posts advertised, there were 5 nos. of posts of Lecturer in the O&G Department for which, the petitioner had applied. Out of the 5 vacancies, 3 were for unreserved category and 2 for reserved category. It is not in dispute that the petitioner belongs to the unreserved category. The petitioner on her application, was issued a call letter on 30.08.2016 and the interview was scheduled on 05.09.2016 in which, the petitioner had appeared, However, in the results published, the petitioner was not amongst the selected candidates. Shri Bhuyan, learned counsel for the petitioner has submitted that the communication towards declaration of results dated 24.03.2017 would indicate that only one general category candidate has been selected for appointment as Lecturer in O&G Department and the 4 other vacancies have been filled up by reserved category candidate. The learned counsel has, however, fairly submitted that from the affidavit-in-opposition filed by the APSC, it transpires that two of the selected candidates who belong to reserved category candidate have been. treated as general category on account of their merits. He, therefore, contends that he would not press upon the said ground of challenge. Shri Bhuyan, learned counsel, however, has strenuously canvassed that the procedure adopted for selection is not in terms of the stipulations made in the advertisement. By referring to the mode indicated in the advertisement, it is submitted that the selection was to be held by written test/interview and it stipulates that the Commission may short-list the candidates either on the basis of the marks obtained in the qualifying academic examination required for the post in question or by holding screening test (multiple choice objective type written examination) which would be notified. It is submitted that none of the procedures were adopted and only on the basis of viva-voce, the selection has been done which is not as per the mode indicated in the advertisement. The learned counsel, accordingly submits that the selection is to be interfered with and the candidature of the petitioner be considered in proper perspective.

 CONTENTIONS OF THE RESPONDENTS

Shri Mahanta, learned Senior Counsel representing the APSC, however, has submitted that even the existing ground of challenge is, both factually and legally untenable. He submits that the interpretation of the mode given on behalf of the petitioner is not correct. It is submitted that under heading ‘C’, the precondition for going for short listing the candidates on the basis of the marks obtained in the qualifying academic examination or by holding a screening test is that the number of applications should be large. By drawing the attention of this Court to the affidavit-in-opposition filed by the APSC on 06.01.2024, the learned Senior Counsel has submitted that for the 5 nos. of vacancies in the post of Lecturer O&G, the total number of applications received were 16. It is submitted that the said number of 16 is even less than the number which is envisaged for maintaining a ratio of 1:6. It is accordingly submitted on the behalf of the APSC that there was no requirement for adopting either of the two modes for short listing and the candidates were accordingly interviewed based upon which, the selection has been made. It is further submitted that the mode of selection as such, by interview is not the subject matter of challenge as the petitioner had participated in the said selection process without any objection. Shri Borah, learned Standing Counsel, Health Department while endorsing the submissions made on behalf of the APSC has further submitted that the APSC is the statutory body through which selections are made and there does not appear that there has been any anomalies in the said selection. He accordingly prays for dismissal of the writ petition.

 COURT’S ANALYSIS AND JUDGEMENT

On consideration of the submissions made and the materials placed on record, this Court has noted that the first ground regarding the allegation of violation of the reservation policy has appeared to be factually untenable in view of the facts projected in the affidavit-in-opposition of the APSC that two candidates of reserved category has been appointed in the vacancy meant for unreserved category on the basis of their merits. The aforesaid provision of the advertisement has clearly indicated the mode of selection as written test/interview. The said heading further stipulates two options of short listing the number of candidates on the basis of the marks obtained in the qualifying academic examination or by holding screening test. It is, however, noted that either of the two options are to be exercised only when the application received is large. In the instant case, admittedly, for 5 nos. of vacancies, the total number of applications received is 16. Therefore, there was no requirement at all for adopting either of the two options and accordingly, the candidates who had applied were subjected to a viva-voce test. The petitioner having participated in the said selection process in the mode adopted by the advertisement without any demur will not be allowed to challenge the mode that too, on a ground which apparently appears to fallacious. This Court is of the considered opinion that the grounds of challenge structured is both legally and factually untenable and accordingly, the writ petition is dismissed. 

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Judgement Reviewed by – HARIRAGHAVA JP

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Supreme Court Ruling: Shewalkar Developers Granted Permission for Eco-Resort Construction, Conditional on ESZ Compliance

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Supreme Court Ruling: Shewalkar Developers Granted Permission for Eco-Resort Construction, Conditional on ESZ Compliance

Case title:  T.N. GODAVARMAN THIRUMULPAD VS UNION OF INDIA & ORS.

Case no.:  WRIT PETITION(CIVIL) NO(S). 202 OF 1995

Dated on: 16th May 2024

Quorum:  Hon’ble. MR JUSTICE B.R. GAVAI and Hon’ble. MR JUSTICE SANDEEP MEHTA.

FACTS OF THE CASE

These interlocutory applications have been preferred by the applicant M/s Shewalkar Developers Limited being aggrieved by the inaction of the respondents in deciding the application filed by the applicant seeking permission to construct a health/eco-resort on the subject land being Plot Nos. 14/3 and 14/4, falling in Sheet No. 20, Civil Station, Panchmukhi, District Hoshangabad, Madhya Pradesh. The total area of these two plots is around 59,265 sq. ft. and 49,675 sq. ft., respectively. The applicant herein approached the Madhya Pradesh High Court by filing Writ Petition No. 14478 of 2006 seeking a direction to the respondents to favorably consider the prayer of the applicant. Vide order dated 22nd November, 2006, the Division Bench of Madhya Pradesh High Court permitted the applicant to approach the Central Empowered Committee (hereinafter being referred to as ‘CEC’) constituted under the directions given by this Court in Writ Petition (Civil) No. 202 of 1995. Consequently, the applicant preferred an application to the CEC seeking permission to construct the health/eco-resort on the land mentioned above asserting that the said chunk of land was not a forest land and had been acquired under valid title deeds and thus, the prayer for permission to construct may be allowed. However, the prayer made by the applicant was not accepted whereupon, the applications under consideration came to be filed before this Court. The State Government had previously taken a stand in its counter that the land in issue falls within the limits of Pachmarhi Wildlife Sanctuary and therefore, by virtue of the directions issued by the CEC vide letter dated 2nd July, 2004, no commercial activity was permissible thereupon, without the permission of this Court. Much water has flown during pendency of the original application (I.A. No.2930 of 2010) which has remained pending for almost 14 years. Another litigation took place regarding other transactions of land done by Dennis Torry and it will be essential to trace the history thereof. The District Collector, Hoshangabad registered Suo moto revisions against the mutation orders issued in favour of Kripa Torry and Sanjay Bhandari (purchasers of land from Dennis Torry) and vide order dated 9th August, 2004, these revisions were allowed holding that the transfer of land by the perpetual land holder Rodrigues in favour of Dennis Torry on 8th September, 1977 was illegal and without force of law and thus, mutation of land in favour of Dennis Torry was illegal. The transfer and consequent mutation in favour of Sanjay Bhandari and Shri Kripa Torry (son of Dennis Torry) was quashed and set aside by the District Collector vide order dated 9th August, 2004. The issue which has now been raised by the State of Madhya Pradesh is with respect to the identification of the land owned by the applicant contending that the same forms a part of the Pachmarhi Wildlife Sanctuary.

ISSUES

  1. Whether the applicant, M/s Shewalkar Developers Limited, can proceed with the construction of a health/eco-resort despite the pending writ appeal before the Madhya Pradesh High Court concerning the land’s title and ownership.
  2. Whether the transfer and mutation of land from Dennis Torry to the applicant were valid and legally recognized, considering past legal challenges and the orders of the District Collector, Hoshangabad.
  3. Whether the land in question falls within the Pachmarhi Wildlife Sanctuary or Eco-Sensitive Zone (ESZ), thereby restricting commercial activity under the Wild Life (Protection) Act, 1972, and the ESZ notification dated 9th August 2017.
  4. Whether the applicant has demonstrated that the land is outside the ESZ, based on the site map and the compliance affidavit provided by the State.
  5. Whether the respondents, including the State Government and the Central Empowered Committee (CEC), have followed due process and provided a fair consideration of the applicant’s request, especially in light of the failure to implead the applicant in relevant litigations.

LEGAL PROVISIONS

Constitutional Provisions

Article 300A of the Constitution of India: This article states that no person shall be deprived of their property save by authority of law. It ensures the protection of property rights of individuals against arbitrary state action.

Environmental and Wildlife Laws

Wildlife (Protection) Act, 1972: This Act provides for the protection of wild animals, birds, and plants, and for matters connected therewith. Key sections relevant to this case include:

Section 29: Restriction on the entry in the sanctuary and regulation of commercial activities therein.

Section 35: Declaration of a sanctuary by the state government.

Environmental Protection Act, 1986: An Act to provide for the protection and improvement of the environment and for matters connected therewith. This Act empowers the central government to take all measures deemed necessary for protecting the environment.

CONTENTIONS OF THE APPELLANT

Shri D.S. Naidu, learned senior counsel representing the applicant drew the Court’s attention to the order dated 15th December, 2000 passed by the Department Officer (SDO), Pipariya on the application preferred by the applicant seeking mutation based on a registered sale deed dated 13th September, 1991 executed by the land owner Dennis Torry in favour of the applicant. The SDO accepted the said application taking note of the fact that Plot No.14 admeasuring 3,23,365 sq. ft. was entered in the name of Dennis Torry who sought and was granted permission to sell the plot in question, by the Government of Madhya Pradesh vide order dated 1st May, 1991. Thereafter, by a registered sale deed dated 13th September, 1991, Dennis Torry had sold the subject plots of land to Ashutosh Shewalkar on behalf of the applicant company. Consequently, the SDO directed that the land sold by Dennis Torry should be mutated in the name of M/s Shewalkar Developers Ltd. through Ashutosh Shewalkar, resident of Nagpur. There is no dispute that the aforesaid order passed by the jurisdictional Revenue Officer in favour of the applicant has not been questioned in any Court of law. Further Shri Naidu also drew the Court’s attention to the report of the CEC dated 16th June, 2020, as per which the permission to construct has been denied to the applicant on the ground that the State of Madhya Pradesh had filed an affidavit stating that the land falls in the Pachmarhi Wildlife Sanctuary and that the same had been purchased in violation of the provisions of the Wild Life (Protection) Act, 1972. Shri Naidu contended that this objection raised by the State with reference to the Eco Sensitive Zone (hereinafter being referred to as ‘ESZ’) notification dated 9th August, 2017 is totally against the material available on record. He drew the Court’s attention to the site map dated 26th December, 2023(Annexure A-1 annexed with the compliance affidavit dated 12th February, 2024 filed by the respondent-State of Madhya Pradesh) to contend that as a matter of fact, the land owned by the applicant is located right on the periphery of the Nazul land, at a distance of about 10 kms. from the forest area and therefore, the same is well beyond the ESZ area. Shri Naidu further submitted that in view of the categoric assertion made in the compliance affidavit dated 12th February, 2024, filed on behalf of the State, it is clear that the plots in question are located in the urban area of Pachmarhi and thus, there is no question of these plots being covered either under the wildlife sanctuary or the ESZ area. He thus urged that the applicant deserves the relief sought for.

CONTENTIONS OF THE RESPONDENTS

learned counsel appearing for the respondents have opposed the submissions advanced by Mr. Naidu. Learned counsel for the State of Madhya Pradesh urged that the plots in question are subject matter of litigation in the writ appeal pending before the Division Bench of the Madhya Pradesh High Court and thus, the applicant should await the outcome of the aforesaid writ appeal before seeking permission to construct the health/eco resort on the land in question. His further contention was that the plots in question are recorded in the name of the State of Madhya Pradesh and hence, the applicant cannot claim any right thereupon. Mr. K. Parameshwar, learned Amicus Curiae appearing on behalf of the CEC submitted that in view of the ESZ notification dated 9th August, 2017, permission to raise a new construction on the land in question cannot be granted and whatever permissions are sought for, have to be routed through the CEC.

COURT’S ANALYSIS AND JUDGEMENT

In this background, the applicant is justified in claiming that its proprietary rights guaranteed under Article 300A of the Constitution of India cannot be infringed merely on account of the pending writ appeal before the Madhya Pradesh High Court. Resultantly, we are of the firm opinion that the permission sought by the applicant for raising construction of health/eco resort cannot be opposed only on account of pendency of the writ appeal before the Madhya Pradesh High Court. However, it can be said without a cavil of doubt that activities, if any, on the Plot Nos. 14/3 and 14/4 purchased by the applicant from Dennis Torry would have to be carried out strictly in accordance with the ESZ notification dated 9th August, 2017, issued by the Ministry of Environment, Forest and Climate Change.  Neither the Revenue Department nor the State Government authorities took the trouble of impleading the applicant as party in any of the abovementioned litigations. The title acquired by the applicant over the subject plots not having been challenged, attainted finality and thus the State cannot claim a right thereupon simply because at some point of time, the plots came to be recorded as Nazul lands in the revenue records. The categoric stand in the compliance affidavit filed by the State (reproduced supra) fortifies the claim of the applicant that these plots are falling under the urban area. Nonetheless, the applicant would be at liberty to satisfy the authorities that the plots in question are beyond the Eco-Sensitive Zone. Furthermore, since the writ appeal pending before the Madhya Pradesh High Court arises out of the orders passed in relation to the title rights of Dennis Torry, from whom the applicant purchased the plots in question, the activities, if any, undertaken by the applicant on the said plot of land would also remain subject to the outcome of the said writ appeal. While deciding the application filed by the applicant, the authorities shall also bear in mind the fact that it is the pertinent case presented before this Court that a large number of resorts of Madhya Pradesh Tourism Development Corporation and Special Area Development Authority (SADA) are existing on areas abutting the land owned by the applicant. The application/s shall be decided within a period of two months from today. Needless to say, that in the event of any adverse orders being passed, the applicant shall be at liberty to challenge the same as per law. The applications are disposed of in above terms. No order as to costs.

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Judgement Reviewed by – HARIRAGHAVA JP

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