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The High Court upheld the wakf tribunal’s decision to take the respondent’s land off the wakf board.

Case title: Sayyed Moinuddin vs Pratap Singh,

Case no.: Civil Revision Application No.3 Of 2021

Decided on: 14.02.2024

Quorum: Hon’ble Justice S.G Mehare

 

FACTS OF THE CASE:

The current application is based on the order of the Maharashtra State Wakf Tribunal. The respondent had filed a suit before the Maharashtra State Wakf Tribunal in Aurangabad, seeking a declaration that the orders of the Chief Executive Officer of the Maharashtra State Wakf Board, including Survey Gut No.66 in the Book/register of Waqf, maintained by the Board and passed by the C.E.O., pursuant to the so-called entry in the concerned Gazette, are time-barred, hollow, inactive, in-executable, null and void, and not binding on the respondent’s rights. The order, which included the property Gut No. 66 in the Board’s Waqf Book/Register, is quashed and set aside. Furthermore, the declaration has been sought that the Board’s C.E.O.’s order directing the respondents to remove his possession from the suit land is invalid in law. A perpetual injunction prohibiting the applicants from interfering with their ownership and peaceful possession of the Suit land Survey No.66 was also requested.

ISSUE:

Was the Suit not maintainable under Section 54 (4) of the Wakf Act 1995?

LEGAL PROVISIONS:

Section 54 of the Wakf Act 1995 addresses the removal of encroachment on waqf property. Section 54(4) of the Act 1995, prior to its amendment, has been discussed. It allows the person who is dissatisfied with the C.E.O.’s orders to file a lawsuit. Its proviso clause prohibits the person in possession from filing a suit under the said section if the Mutalwali allowed him to possess the land as a lessee, licensee, or through a mortgage.

APPLICANTS CONTENTION:

They claimed that the order under Section 54 was issued following the 2013 amendment. As a result, the suit was not maintainable. The suit against such orders should have been filed within 60 days. As a result, the suit was time-barred. The issue of the plaintiff’s locus to file suit was not framed, despite being specifically requested in an application. While deciding on the application, it was discovered that the applicants could effectively argue their point. That was the subject of cross-examination for the witness. However, the learned Tribunal did not address that important issue. It is a good reason to refer the case back to the learned Tribunal. The respondents have admitted the Muntakhab. But it was a composite Muntakhab. If the Muntakhab is composite, the law presumes that the lands included in it are service Inam lands. The Suit land was a service Inam property. The learned Tribunal made no mention of any of the case law on which they relied.

RESPONDENTS CONTENTION:

The respondents emphasised that the suit land was the Inam land. His forefathers were tenants since 1925. They’ve been protected tenants since 1979, and he was granted occupancy certificates. Before publishing the Government Gazette, the Survey Commissioner did not give notice, did not go through the revenue record, and automatically included the Suit land in the Gazette as a Wakf property. The registration was approved on the basis of Muntakhab. Nobody was looking after or maintaining the Suit land. The order abolishing Inam and the tenancy rights was never challenged. As a result, the Tribunal has correctly decided not to consider or disturb it.

COURT ANALYSIS AND JUDGEMENT:

The court ruled that the Tribunal’s orders holding the respondent tenant in the suit land were never challenged. The Board’s jurisdiction under Section 54 of the 1995 Act prevented it from interfering with the respondebt’s rights under the aforementioned orders. It stated that the learned Tribunal had framed the issues based on controversial facts and addressed each and every point raised for consideration. It appears that the learned Tribunal has considered each party’s submissions, discussed the evidence, and recorded the correct findings. The challenged orders are free of illegality and infirmity. As a result, there is no reason to interfere. Applications have been dismissed.

 

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Written by – Surya Venkata Sujith

 

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Higher courts are required to follow judicial discipline and comity to uphold the law: Supreme Court.

Case title: Directorate Of Enforcement vs Niraj Tyagi

Case no.: Criminal Appeal No. 843 Of 2024

Decided on: 13.02.2024

Quorum: Hon’ble Justice Bela M. Trivedi, Hon’ble Justice Prasanna B. Varale

 

FACTS OF THE CASE:

The appellants filed this appeal because they were dissatisfied with the interim orders issued by the High Court of Judicature at Allahabad in Criminal Misc. Writ Petition. The High Court has stayed the proceedings of the FIRs registered against the concerned respondents-accused, as well as the proceedings of the Directorate of Enforcement against the concerned respondents, and has further directed that no coercive action be taken against the respondents pending the writ petitions.

APPELLANTS CONTENTION:

They claimed that the Court issued an order staying the proceedings of the ECIR and the FIRs registered against the respondents without hearing the ED, so the ED filed a Review Petition, which is currently pending before this Court. He went on to argue that the High Court’s orders to stay the ECIR and FIR proceedings lacked compelling reasons.

RESPONDENTS CONTENTION:

The Counsel appearing for the respondents in the appeal, referring the Court to the proceedings conducted under the SARFAESI Act and before the High Court and this Court, contended that the respondent-complainant Shipra Group, having failed in all of the aforementioned proceedings, had turned to criminal proceedings to instill fear in the financial institution and its officers.

COURT ANALYSIS AND JUDGEMENT:

The court ruled that the High Court issued the impugned orders staying the investigations into the FIRs and ECIR in question in complete disregard of the previously established legal position. Without undermining the High Court’s authority under Section 482 of the CrPC to quash the proceedings if the allegations in the FIR or complaint do not appear to constitute an offence against the accused, or if the criminal proceedings are found to be manifestly malafide or malicious, instituted with an ulterior motive, etc.

They opined that the High Court could not have stayed the investigations and prevented the investigating agencies from looking into the cognizable offences alleged in the FIRs and ECIR, especially since the investigations were still in their early stages.

The court stated that it is sufficient to say that judicial comity and judicial discipline require higher courts to follow the law. The court’s extraordinary and inherent powers do not grant it arbitrary jurisdiction to act at its discretion.

 

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Written by – Surya Venkata Sujith

 

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The supreme court issues new guidelines for the bail application procedure.

Case title: Kusha Duruka Vs. State of Odisha

Case no.: Criminal Appeal No. 303 of 2024

Decided on: 19.01.2024

Quorum: Hon’ble Justice Vikram Nath, Hon’ble Justice Rajesh Bindal

FACTS OF THE CASE:

The current appeal is for bail for the accused, who has been in custody in connection with exclusive and conscious possession of the substance of Ganja.

Application for release on bail pending trial was denied. The appellant filed his first bail application in the High Court after being dissatisfied with  rejection his bail application. However, the appellant’s bail application was dismissed in high court.

The appellant filed the SLP before this Court, expressing his dissatisfaction with the situation. On 06.12.2023, the appellant’s counsel stated that while the current matter was pending before this Court, the High Court granted bail to the appellant in another bench of the high court by order dated 11.10.2023.

He presented with a soft copy of the High Court’s order. On a reading of the aforementioned order, the Court found that it made no mention of the appellant’s second bail application or the SLP’s pending before this Court, for which notice had already been issued.

The appellant filed a second bail application, in which he was granted bail by the High Court via an order dated 11.10.2023. The Court received the original record of this bail application, along with a report dated 08.12.2023 from the High Court and a note from the Hon’ble Judge who heard the case and issued the order on 11.10.2023.

The judge who granted the bail stated in his comments that at the time of hearing the second bail application, the court was not aware of the factum of the SLP’s pending before this court.

 

COURT ANALYSIS AND JUDGMENT:

The court noted that the appellant made no mention of the High Court’s decision on his earlier bail application, as well as the filing of the SLP in this Court. Though, just below the names of the parties, the appellant mentioned the number of his previous bail application. The appellant has notably refrained from discussing the High Court’s decision to reject his previous bail application and his filing of the SLP with this Court, even within the body of the bail application.

During the course of this case, a new bail application was filed not only before the Trial Court but also before the High Court. The appellant was even granted bail by the High Court.

The appellant did not specify that this was his second bail application in the one he filed with the High Court.

The court has established the following mandatory guidelines in an effort to streamline the proceedings, prevent anomalies with regard to bail applications filed in cases pending trial and even for sentence suspension, and to clear up any confusion going forward:

  • Information about the case and copies of the orders issued in the petitioner’s prior, already-decided bail application(s).
  • Information regarding any bail application(s) that the petitioner has filed, which are pending in any court either the court below the one in question or the higher court or, in the event that none are pending, express notice to that effect.
  • A report generated by the system regarding the approved or pending bail application(s) in the relevant criminal case should also be annexed by the court registry. Even in the case of private complaints, the same procedure must be followed because, even in the absence of a FIR number, every case filed in trial courts is given a unique number (CNR No.).
  • The Investigating Officer and any other officers supporting the State Counsel in court should be responsible for informing the State Counsel of any orders, if any, issued by the court regarding various bail applications or other proceedings related to the same criminal case. Additionally, the solicitors representing the parties must behave themselves genuinely as court officers.

The appeal was dismissed, but the appellant’s bail was not cancelled. The court ordered a cost of ₹10,000/- to be deposited with the Mediation and Conciliation Centre attached to the Orissa High Court.

 

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Written by – Surya Venkata Sujith

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Complaint Seeking An Action Under Sub-Section (3) Of Section 156 Of Cr.P.C., The Learned Magistrate Cannot Act Mechanically: High Court of Bombay

Title : Satish Panchariya v The State of Maharashtra

Citation : WP-1009-2012

Decided On: 4th November, 2023.

Coram: Justice A. S. Gadkari And Justice Shyam C. Chandak.

Introduction:

The Petitioners have invoked jurisdiction of the Court under Article 226 of Constitution of India read with Section 482 of the Criminal Procedure Code [for short “Cr.P.C.”] for quashing of M.E.C.R. No. 2 of 2012, registered with Malad Police Station, Mumbai, in furtherance of Order dated 9th January, 2012 passed by the learned Additional Chief Metropolitan Magistrate, 24th Court, Borivali, Mumbai in C.C. No.04/SW/2012.

Facts:

The learned Magistrate by its impugned Order dated 9th January, 2012, while directing the Police to conduct investigation under Section 156(3) of Cr.P.C., has himself admitted that without applying judicious mind to the case, he has passed the said Order by relying on the decision of the Hon’ble Supreme Court in the case of Shrinivas Gundluri and Ors v/s. SEPCO Electric Power Constructions Corporation & Ors. It is the settled position of law and as has been enunciated by this Court in the case of Sayed Anwar Ahmed & Anr. vs. The State of Maharashtra & Anr., reported in 2017 SCC OnLine Bom 3972, while dealing with the complaint seeking an action under Sub-Section (3) of Section 156 of Cr.P.C., the learned Magistrate cannot act mechanically. He is required to apply his mind to the contents of the complaint and the documents produced along with the complaint. That, an Order passed on the said complaint must record reasons in brief which should indicate application of mind by the Magistrate. However, it is not necessary to record detailed reasons.

There is another facet to the present Petition. In the complaint the Respondent Nos. 3 and 4 have represented themselves to be the authorized representatives of the Respondent No.2, Company for filing the said complaint and persuading the learned Magistrate in passing the impugned Order dated 9th January, 2012. The Authorised Representative/Director of Respondent No.2, Company, namely Retired Wing Commander Ajai Sharma has filed an Affidavit on behalf of Respondent No.2 dated 3rd April, 2012, duly affirmed before the Assistant Registrar of this Court.

he Respondent No.2 has not filed any complaint against any person and has also not authorised any person to file any complaint. That, the complaint bearing C.C. No. 04/SW/2012 filed before the learned Additional Chief Metropolitan Magistrate, 24th Court, Borivali, Mumbai, is without the knowledge of the Company and the Board of Respondent No.2 never passed any resolution to file any complaint or authorized Respondent No.3 to file any such complaint. That, the said complaint is filed without any authorization and without knowledge, consent or assent of the Board of Directors.

Court’s Analysis and Judgement:

The court held that a priori that, it is apparent that the Respondent Nos.3 and 4, has filed the said complaint without having any lawful authority. It is clearly a sheer sheer abuse of process of law adopted by Respondent Nos. 3 and 4 in the name of Respondent No.2 and as continuation of the said proceedings, would cause undue harassment and agony to the Petitioners for no illegal act committed by them.

The Court also did  not appreciate the mode and manner in which the impugned Order dated 9th January, 2012 is mechanically passed by the learned Magistrate, which is in utter disregard to the settled principles of law. Hence the order dated 9th January 2012 is quashed and set aside by the Court.

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Written By : Sanjana Ravichandran

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ED Summons to District Collectors A ‘Fishing Expedition’ Without Showing Existence Of Proceeds Of Crime: Madras High Court.

ED Summons to District Collectors A ‘Fishing Expedition’ Without Showing Existence Of Proceeds Of Crime: Madras High Court.

Title : State of Tamil Nadu v Enforcement Directorate

Case No. : W.P.Nos.33459 to 33468 of 2023

Decided on : 30.11.2023.

CORAM : HONBLE JUSTICE S.S.SUNDAR, J. AND SUNDER MOHAN, J

Introduction

All the above writ petitions are filed by the State Government along with the Additional Chief Secretary to Government, Water Resources Department and the District Collectors concerned. Writ Petition Nos.33459, 33460, 33461, 33462 & 33467 of 2023 are filed by the State Government and two others to quash the respective impugned summon issued to the District Collector of Vellore District, Trichy District, Karur District, Thanjavur District and Ariyalur District, requiring the appearance of the respective District Collectors to give evidence and produce records as indicated in the annexure, in connection with the investigation/proceedings under the Prevention of Money Laundering Act, 2002 .

Fact of the Case

The respondent, namely, the Assistant Director, Directorate of Enforcement has filed an objection affidavit. The learned Additional Solicitor General raised a preliminary objection stating that the writ petitions are not maintainable by the State Government, as the State is not an aggrieved person to challenge the process of investigation. The learned Additional Solicitor General also relied upon a few complaints registered in different parts of the State. Referring to the Enforcement Case Information Report (ECIR), the learned Additional Solicitor General submitted that as per the First Information Report mentioned in the ECIR, prima facie, it is observed that the activities of illegal mining are happening in the State of Tamil Nadu in collusion with officials and local mafia, hand in glove.

Case Analysis and Judgment

Court sincerely appreciates the way in which the respondent had responded to these writ petitions within a short time. A detailed affidavit of objection is filed by the respondent raising several issues. The learned Senior Counsel appearing for the petitioners requested time to file reply in response to the objection in the form of affidavit. The learned Additional Solicitor General also submitted that they may be permitted to file a detailed counter affidavit.

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