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Supreme Court upheld the High Court’s judgment, affirming that the findings of the trial court were supported by evidence and were not perverse in  Inheritance Property

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Supreme Court upheld the High Court’s judgment, affirming that the findings of the trial court were supported by evidence and were not perverse in  Inheritance Property

Case title: LEHNA SINGH (D) BY LRS VS GURNAM SINGH (D) BY LRS. & ORS.

Case no.: REVIEW PETITION (C) No. 1025 of 2019

Dated on: 16TH May 2024

Quorum:  Hon’ble Mr. Justice VIKRAM NATH And Hon’ble Mr. Justice PRASHANT KUMAR MISHRA.

FACTS OF THE CASE

The petitioner has preferred this Review Petition seeking review of the Order dated 13.03.2019 passed in Civil Appeal No. 6567 of 2014 wherein the present petitioner was the respondent. In the Order under review, the Civil Appeal was allowed, and the judgment and decree passed by the High Court of Punjab and Haryana on 27.11.2007 in Civil Regular Second Appeal No. 2191 of 1985 was set aside and the judgment and decree passed by the District Judge, Sangrur, on 06.06.1985 in Civil Appeal No. 27 of 1983 has been restored. This Court held that the judgment and decree passed by the Punjab and Haryana High Court is beyond the scope and ambit of Section 100 of Code of Civil Procedure, 19081 on the ground that in exercise of such power, the High Court could not have reappreciated the entire evidence on record to unsettle the finding of facts recorded by the First Appellate Court, by substituting its own opinion for that of the First Appellate Court. Basing the judgment rendered in Pankajakshi (Dead) Through Legal Representatives & Ors. v. Chandrika & Ors.2, this Court directed that the review petition be listed before the open Court for hearing and subsequently on 13.08.2019 notices were issued to the opposite parties, at the same time, directing the parties to maintain status quo. In substance, the main ground for review of the judgment is that the Constitution Bench of this Court in Pankajakshi (supra) have uphold the validity of Section 41 of Punjab Courts Act, 19183, overruling this Court’s earlier judgment in case of Kulwant Kaur & Ors. v. Gurdial Singh Maan (Dead) By Lrs. & Ors.4 holding that since Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976 has no application to Section 41 of the Punjab Act, therefore, Section 41 of the Punjab Act would necessarily continue as a law in force and the second appeal before the High Court has to be heard within the parameters of Section 41 of the Punjab Act, and not under Section 100 CPC.

CONTENTIONS OF THE APPELLANT

Shri P.S. Pat Walia, learned Senior counsel appearing for the petitioner would also refer to the subsequent judgments of this Court in Randhir Kaur v. Prithvi Pal Singh & Ors.5 and Gurbachan Sing (Dead) Through Lrs. v. Gurcharan Singh (Dead) Through Lrs. & Ors.6 wherein this Court relying upon Pankajakshi (supra) held that the scope of interference within the jurisdiction of the Punjab and Haryana High Court would be the same as under Section 100 of CPC as it existed prior to the 1976 amendment. The provisions of Section 41 of the Punjab Act and of Section 100 CPC, before its amendment in 1976, are in Pari Materia. Therefore, the questions of law are not required to be framed in second appeal before Punjab and Haryana High Court whose jurisdiction in second appeal is circumscribed by provision of Section 41 of the Punjab Act. Shri Pat Walia would submit that this Court has set aside the Judgment of High Court terming it as beyond the power under Section 100 CPC which is not legally correct, in view of the law laid down in Pankajakshi (supra). It is further argued that in the facts and circumstances of the case, the petitioner was entitled to succeed to the property by way of natural succession and the finding of the High Court that the Will relied upon by the respondents has not been proved as it is surrounded by suspicious circumstances ought not to have been interfered by this Court. It is argued that a finding of fact erroneously or perversely recorded by the First Appellate Court can always be interfered by the High Court. Hence, there is no infirmity in the Judgment rendered by the High Court and the same ought not to have been interfered by this Court while deciding the Civil Appeal No. 6567 of 2014 on an erroneous ground that the High Court has travelled beyond its jurisdiction and power under Section 100 CPC as it stands of the 1976 amendment.

CONTENTIONS OF THE RESPONDENTS

Shri Manoj Swarup, learned senior counsel appearing for the respondents would not dispute the legal position as has been settled by this Court in the matter of Pankajakshi (supra). However, he would submit that even in the case when the High Court would exercise the power under Section 41 of the Punjab Act, the finding of fact recorded by the First Appellate Court cannot be interfered on re-appreciation of evidence to substitute its own decision for that of the First Appellate Court. According to him, the finding recorded by the First Appellate Court was borne out from the record. Therefore, the High Court erred in interfering with the said finding, and this Court rightly set aside the Judgment and decree of the High Court while deciding the Civil Appeal. According to Shri Swarup, the respondents had proved the Will, which was a registered one, in accordance with law and that there were no suspicious circumstances accompanying the Will. When this Court rendered the judgment under review in Civil Appeal No. 6567 of 2014, the only ground which weighed with the Court was that the High Court exercised the power under Section 100 CPC erroneously and decided the second appeal by re-appreciating the evidence without even framing a substantial question of law. The provision contained in Section 41 of the Punjab Act, as reproduced above, does not mandate framing of a substantial question of law for entertaining the second appeal. Therefore, a second appeal under Section 41 of Punjab Act can be entertained by the Punjab and Haryana High Court even without framing a substantial question of law.

ISSUES

  1. Whether the Appellate Court can reverse the findings recorded by the learned trial court without adverting to the specific finding of the trial court?
  2. Whether the judgment passed by the learned lower Appellate Court is perverse and outcome of misreading of evidence?

LEGAL PROVISIONS

Section 96 of the Civil Procedure Code (CPC): This section deals with the powers of the appellate court and allows it to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require.

Section 100 of Code of Civil Procedure, 1908: provides for a second appeal to the High Court from an appellate decree. There is no vested right of appeal unless the statute so provides.

Section 41 of Punjab Courts Act, 1918: Second appeal An appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court

Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976: Any amendment made, or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall, except insofar as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed.

 COURT’S ANALYSIS AND JUDGEMENT

This Civil Appeal is preferred by the defendants in the suit against whom the plaintiff brought a suit for perpetual injunction on the pleadings, inter alia, that he and his brother Bhawan Singh alias Nikka Singh were owners in possession of the suit land. Bhawan Singh was issueless being unmarried. Since the defendant No. 1 was trying to dispossess the plaintiff forcibly, the suit for perpetual injunction was filed. The defendants did not deny that plaintiff and Bhawan Singh were real brothers. However, he claimed to be the half-brother of Bhawan Singh as they were given birth by same lady namely Mrs. Har Kaur who was earlier married to Sunder Singh but after his death, she was married to Mehar Singh and the defendant no. 1 was born out of the wedlock of Har Kaur with Mehar Singh. The defendant’s case rested on a Will allegedly executed by Bhawan Singh on 17.01.1980. Prior to this, Bhawan Singh had executed an unregistered Will on 17.08.1979. However, the defendant admitted that during the lifetime of Bhawan Singh, the suit land was cultivated jointly by the plaintiff and Bhawan Singh. In the alternative, the defendant pleaded that if plaintiff’s possession over the suit land is proved, the defendant nos. 2 to 6, the beneficiary of the Will, are entitled to joint possession of half share of the suit land. On the strength of evidence adduced by the parties in course of trial, it was held by the trial court that the defendants have failed to prove the genuineness of the Will, therefore, the plaintiff is entitled to succeed by way of natural succession. It was found that the Will relied by the defendants is surrounded by suspicious circumstances, therefore, it is not a validly executed Will. The trial court held that the defendants’ case that they served the deceased Bhawan Singh during the lifetime and out of love and affection for the services rendered, he executed the Will in their favour as they were also related to the deceased, has not been believed by the trial court. There is evidence that it was plaintiff who admitted Nikka Singh in hospital on 02.08.1979 when he was ill and his address was also shown as care of Lehna Singh (the ‘plaintiff’). The trial court also found that the plaintiff is in possession of the suit land as the said fact has been admitted by one of the defendant’s witnesses namely Gurnam Singh. The First Appellate Court set aside the finding of the trial court holding that the trial court was wrongly persuaded by insignificant circumstances to hold that the Will in favour of the defendant nos. 2 to 6 is not genuine and that it is surrounded by suspicious circumstances. The First Appellate Court eventually passed a decree for joint possession in favour of defendant which was assailed by plaintiff Lehna Singh before the High Court by preferring an appeal under Section 41 of the Punjab Act. The High Court, under the impugned Judgment, allowed the appeal, set aside the appellate decree passed by the District Judge, Sangrur, restoring the Judgment and decree passed by the trial court. The High Court answered both the questions of law in favour of the plaintiff/respondent herein (in Civil Appeal) on the reasoning that when the person entitled to the property of the deceased by way of natural succession, is disinherited from the property without giving any reason and the covenants in the Will are also found to be factually incorrect, mere registration of the Will and proof of the same by attesting witnesses could not be treated to be sufficient to over-come the suspicious circumstances as has been done by the First Appellate Court. The High Court also observed that the propounders of the Will were earlier tried for murder of the deceased-testator and there being no evidence on record to show that the deceased had special love and affection with the defendants and when it is proved that the plaintiff is in possession of the land and the defendant and their witnesses actively participated in the execution of the Will, there is glaring suspicious circumstances to hold that the Will is not genuine. It was also observed that the testator was residing with the plaintiff, and it was he who got him admitted in the hospital, it was proved that the plaintiff was taking care of the deceased at the time of his need. Merely because the attesting witnesses had no enmity towards the plaintiff, it cannot dispel the suspicious circumstances surrounded around the Will. It is settled law that the First Appellate Court, while setting aside the Judgment and decree of the trial court, is required to meet the reasoning given by the trial court in rejecting the Will, which in the present case has not been done by the First Appellate Court. Having considered the evidence on record and the findings of the trial court, the First Appellate Court and the High Court, we are satisfied that the First Appellate Court wrongly set aside the Judgment, decree, and findings of the trial court without meeting the findings of the trial court which could not have been done in exercise of power under Section 96 CPC. Therefore, the High Court has rightly set aside the Judgment and decree of the First Appellate Court to restore the Judgment and decree of the trial court. On independent examination also, we have found that the findings recorded by trial court are borne out from the evidence on record and are neither perverse nor illegal. Therefore, we find no substance in this appeal which deserves to be and is hereby dismissed. The parties shall bear their own costs.

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Judgement Reviewed by – HARIRAGHAVA JP

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Supreme Court Ruling on M/s Shewalkar Developers Ltd.: Legal Battle Over Land in Pachmarhi Wildlife Sanctuary

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CASE TITLE – T.N. Godavarman Thirumulpad v. Union of India & ORS.

 M/S Shewalkar Developers Ltd. (Applicant)

CASE NUMBER – IA NO(S). 2930 OF 2010, 3963 OF 2017, 160714 OF 2019, 77320 OF 2023 AND 79064 OF 2023 IN WRIT PETITION(CIVIL) NO(S). 202 OF 1995

DATED ON – 16.05.2024

QUORUM – Justice Sandeep Mehta & Justice B.R. Gavai

 

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, Plot Nos. 14/3 and 14/4, falling in Sheet No. 20, Civil Station, Pachmarhi, 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 favourably 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. Much water has flown during pendency of the original application(I.A. No.2930 of 2010) which has remained pending for almost 14 years.

 

ISSUES

Whether plot No.14/3, 14/4 is excluded from the Panchmarhi Wildlife Sanctuary, and if so, can the Applicant proceed to construct their desired health/eco-resort on the subject land?

 

CONTENTIONS BY THE PETITIONER

The Learned Senior Counsel representing the Applicant drew the Court’s attention to an 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. The Learned Counsel 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. He 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. 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 BY THE RESPONDENT

The 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/ecoresort on the land in question. They further brought in 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. Furthermore, The Learned Counsel appearing for the Union of India adopted the submissions advanced by the standing counsel for the State and learned Amicus Curiae.

COURT ANALYSIS AND JUDGEMENT

After going through the facts presented before the Hon’ble Supreme Court, they noticed that It is not in dispute that the applicant herein was never impleaded in any of the proceedings before the Revenue Courts or the High Court as has been emphatically stated in Para-9 of the compliance affidavit dated 12th February, 2024. It is thus, clear that irrespective of the fact that the order passed by the District Collector dated 9th August, 2004, purportedly covers entire area of the Plot No. 14 and the transactions done in favour of and by Dennis Torry, the sale deed executed in favour of the applicant and the mutation made in its name had never been questioned in any Court of law. 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. The Hon’ble Supreme Court were of the firm opinion that the permission sought by the Applicant for raising the construction of the health/ecoresort cannot be opposed only on account of the 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 per the ESZ notification dated 9th August, 2017, issued by the Ministry of Environment, Forest and Climate Change. 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.

Therefore, the Hon’ble Supreme Court directed that the application filed by the Applicant for raising construction on plot Nos. 14/3 and 14/4 shall be decided objectively by the CEC/Competent Authority of the local body keeping in view the location of the land with reference to the notified boundaries of the ESZ, and that the Application shall be decided within a period of two months from today. And further stated that in the event of any adverse orders being passed, the applicant shall be at liberty to challenge the same as per law.

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Judgement Reviewed by – Gnaneswarran Beemarao

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Supreme Court upholds Bombay HC verdict denying appeal for Grants to former Air India Employees.

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CASE TITLE – Mr. R.S. Madireddy & ANR. Etc v. Union of India and ORS. Etc

DATED ON – 16.05.2024

QUORUM – Justice B.R. Gavai & Justice Sandeep Mehta

 

FACTS OF THE CASE

The said appeals were filed challenging the common impugned judgment and order dated 20th September, 2022 passed by the Division Bench of the High Court of Bombay thereby dismissing four writ petitions instituted by the appellants being the former employees of respondent No.3 i.e. Air India Limited (hereinafter referred to as ‘AIL’) as members of its cabin crew force. Appellants came to be employed in AIL in the late 1980s and all of them retired between 2016 and 2018. on 08th October, 2021, the Government of India announced that it had accepted the bid of Talace India Pvt Ltd. to purchase its 100% shares in respondent No. 3 (AIL). Subsequently, on 27th January, 2022 pursuant to the share purchase agreement signed with Talace India Pvt. Ltd., 100% equity shares of the Government of India in respondent No. 3(AIL) were purchased by the said private company and respondent No. 3(AIL) was privatised and disinvested. Therefore, the writ petitions were maintainable on the date of institution but the question that arose before the High Court was whether they continued to be maintainable as on the date the same were finally heard. The Division Bench of Bombay High Court concluded that with the privatisation of respondent No. 3(AIL), jurisdiction of the High Court under Article 226 of the Constitution of India to issue a writ to respondent No. 3(AIL), particularly in its role as an employer, did not subsist and disposed of the writ petitions vide common impugned judgment dated 20th September 2022, which is assailed in the present appeals by special leave.

 

ISSUES

Whether respondent No.3(AIL) after having been taken over by a private corporate entity could have been subjected to writ jurisdiction of the High Court?

Whether the delay in disposal of the writ petition could be treated a valid ground to sustain the claim of the appellants even against the private entity?

 

CONTENTIONS BY THE APPELLANT

The Learned Senior counsel appearing on behalf of the appellants submitted that the right to seek remedy stands crystallized on the date of institution of proceedings and though subsequent events can be considered, it is a well-settled tenet of law that such subsequent events can be looked at only to advance equity rather than to defeat it. He urged that different view is permissible only in exceptional circumstances and in no event can a party be divested of its substantive rights on account of such subsequent event. The Learned senior counsel further contended that the scope of issuing a writ, order, or direction under Article 226 of the Constitution of India is much broader than the high prerogative writs issued by the British Courts and this position has been recognized by this Court. He further submitted that equity should prevail over injustice and since the appellants have diligently pursued their case in the High Court for more than a decade, subsequent events can be accounted for only to support and not undermine equity. It was further contended that a private body that promises the sovereign to fulfill its obligations and liabilities as a public employer towards its employees under Articles 14 & 16, then performs a public duty to the extent of discharging such liabilities. It is not the form, but the nature of the duty imposed that is relevant for adjudging whether a writ petition would lie against a private body. The writ petitions were filed with genuine and bona fide service-related issues of the appellant employees based on substantive allegations of infringement of fundamental rights guaranteed under Article 14 and Article 16 of the Constitution of India. However, the writ petitions could not be taken up and decided for over a period of almost 10 years and thus, the appellants cannot be non-suited for the non-disposal of their bona fide lis in a timely manner. He thus urged that appellants herein are entitled to the relief, as claimed for in the writ petitions.

 

CONTENTIONS BY THE RESPONDENT

The Learned senior counsel appearing on behalf of respondent No. 3(AIL) contended that a bare reading of Article 226 of the Constitution of India, would clearly show that the ‘test of jurisdiction’ is to be invoked/applied at the time of issuance of the writ by the High Court. It is at the stage of issuance of a writ that the High Court actually exercises its writ jurisdiction, and therefore, it is at that point of time, the High Court ought to be satisfied that the person to whom it is issuing a writ is amenable to the extraordinary writ jurisdiction. Learned senior counsel further submitted that this Court in the case of Kaushal Kishor has held that a writ cannot be issued against non-state entities that are not performing any ‘Public Function’. He further pointed out that it is the conceded case of the appellants that post privatisation, respondent No. 3(AIL) does not perform any ‘Public Function’ and in any case running a private airline with purely a commercial motive can never be equated to performing a ‘Public Duty’.

 

COURT ANALYSIS AND JUDGEMENT

The Hon’ble Supreme Court stated that in order to be declared as “State” or “other authority” within the meaning of Article 12 of the Constitution of India, it would have to fall within the well-recognised parameters laid down in a number of judgments of this Court. Since 100% of the shares held by the Govt. of India has been transferred to Talace India Pvt Ltd. Thus, unquestionably, the respondent No.3(AIL) after its disinvestment ceased to be a State or its instrumentality within the meaning of Article 12 of the Constitution of India. The respondent No.3(AIL), the erstwhile Government run airline having been taken over by the private company Talace India Pvt. Ltd., unquestionably, is not performing any public duty inasmuch as it has taken over the Government company Air India Limited for the purpose of commercial operations, plain and simple, and thus no writ petition is maintainable against respondent No.3(AIL). They observed that the Division Bench of Bombay High Court, only denied equitable relief under Article 226 of the Constitution of India to the appellants but at the same time, rights of the appellants to claim relief in law before the appropriate forum have been protected. The Hon’ble Supreme Court further stated that they could not find any reason to take a different view from the one taken by the Division Bench of the Bombay High Court in sustaining the preliminary objection qua maintainability of the writ petitions preferred by the appellants and rejecting the same as being not maintainable. And held that the Appeals are hereby dismissed.

 

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Judgement Reviewed by – Gnaneswarran Beemarao

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Ignoring Precedent A material Error in Common Lands Ownership dispute: Supreme court Recalls Its verdict For Not Considering Constitution Bench Judgment

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Ignoring Precedent A material Error in Common Lands Ownership dispute: Supreme court Recalls Its verdict For Not Considering Constitution Bench Judgment

Case title: KARNAIL SINGH VS STATE OF HARYANA & ORS.

Case no.: REVIEW PETITION (CIVIL) NO.526 OF 2023

Dated on: 16TH May 2024

Quorum:  Hon’ble Mr. Justice B.R. GAVAI And Hon’ble Mr. SANDEEP MEHTA

FACTS OF THE CASE

The present review petition has been filed by the original respondent No.28 in the Appeal, seeking review of the judgment of this Court passed on 7th April 2022, thereby allowing the Civil Appeal No. 6990 of 2014 filed by the State of Haryana against the judgement and order passed by the Full Bench of the High Court of Punjab and Haryana at Chandigarh (hereinafter referred to as “Full Bench of the High Court”) in Civil Writ Petition No. 5877 of 1992 dated 13th March 2003. The State of Haryana, by way of Government Gazette Notification dated 11th February 1992 (hereinafter referred to as “Haryana Act No. 9 of 1992”) inserted sub-clause (6) to Section 2(g) of the Haryana1 Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as “the 1961 Act”) along with an explanation to the said sub-clause which received the assent of the President on 14th January 1992. Being aggrieved by the said amendment, the present review petitioner along with similarly situated landowners, holding land in villages, who contribute a share of their holdings to form a common pool of land called ‘Shamil at deh’, meant exclusively for the common purposes of the village inhabitants filed a batch of Writ Petitions before the High Court. The State of Haryana challenged the decision of the Full Bench of the High Court before this Court vide Civil Appeal No. 5480 of 1995; wherein this Court held that certain essentials of Article 31-A of the Constitution of India were overlooked and remanded the matter back to the High Court for re-consideration of the issues in light of Article 31A of the Constitution of India. The Full Bench of the High Court also issued certain consequential directions with regard to certain mutation entries made by the Revenue Authorities. Being aggrieved thus, the State of Haryana filed a Civil Appeal No. 6990 before this Court, which came to be allowed by judgement and order under review dated 07th April 2022 (hereinafter referred to as “JUR”); and the Writ Petition of the Original Writ Petitioners was consequently dismissed. Seeking review, the present Review Petition has been filed by the review petitioner. This Court on 31st January 2023.

CONTENTIONS OF THE APPELLANT

Shri Narender Hooda submits that the JUR is totally contrary to the law laid down by the Constitution Bench of this Court in the case of Bhagat Ram & others vs. State of Punjab & others2 (hereinafter referred to as “Bhagat Ram”). It is submitted that the JUR also does not correctly consider the law laid down by the Constitution Bench of this Court in the case of Ranjit Singh and others vs. State of Punjab and others3 (hereinafter referred to as “Ranjit Singh”) so also another Constitution Bench judgment of this Court in the case of Ajit Singh vs. State of Punjab & another4 (hereinafter referred to as “Ajit Singh”). Shri Hooda submits that after considering the provisions of Section 23-A and Section 24 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as “the Consolidation Act”), this Court in Bhagat Ram has clearly held that, till possession has changed under Section 24, the management and control does not vest in the Panchayat under Section 23-A. It has also been held that the rights of the holders are not modified or extinguished till persons have changed possession and entered into the possession of the holdings allotted to them under the scheme. Shri Hooda submits that the Constitution Bench of this Court in Ajit Singh was dealing with the lands which were reserved for common purposes such as khals, paths, khurrahs, panchayat ghars and schools etc. It was held that in view of Rule 16(ii) of the Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949 (hereinafter referred to as “the Consolidation Rules”), the title still vests in the proprietary body, and the management of the said lands is done on behalf of the proprietary body. It was further held that the land was used for the common needs and benefits of the estate or estates concerned.

Shri Hooda further submits that even in Ranjit Singh, the Consolidation Scheme earmarked lands reserved under Section 18(c) of the Consolidation Act for various common purposes. The Constitution Bench of this Court held that the provisions for the assignment of lands to village Panchayat for the use of the general community, or for hospitals, schools, manure pits, tanning grounds etc. ensures for the benefit of rural population and it must be considered to be an essential part of the redistribution of holdings and open lands. Shri Hooda further submitted that in a catena of judgments, this Court has held that the lands, though reserved but not earmarked and put for any common purpose under the Consolidation Scheme prepared under Section 14 of the Consolidation Act read with Rules 5 and 7 of the Consolidation Rules and entered in the column of ownership as ‘Jumla Mus tarka Malkan Wa Digger Haq Daran Hasab Rasad Arazi Khewat and in the column of possession with the proprietors, also known as Bachata lands, would not vest in the Gram Panchayat or the State Government. Shri Hooda submits that based on such judgments; thousands of transactions have been entered into between the parties. It is submitted that, though invoking the doctrine of stare decisis was not necessary, this Court in the JUR has not even touched that aspect of the matter. All the judgments which have been holding the field for decades and thousands of transactions which have been entered into between the parties, have been set at naught at the stroke of a pen by the JUR. Shri Hooda further submits that in view of the JUR, the rights of the parties which were crystalized by the judgments of the High Court and which was affirmed by this Court by judgment dated 27th August, 20016 have also been adversely affected without such parties having been heard. He therefore submits that the JUR needs to be recalled and the appeals filed by the State deserve to be dismissed.

CONTENTIONS OF THE RESPONDENTS

Shri Pradeep Kant, learned Senior Counsel appearing on behalf of the respondent-State of Haryana submits that the present review petition itself is not maintainable. It is submitted that the review applicant was a party respondent to the appeal and the JUR has been delivered after hearing the learned counsel for the parties. It is submitted that the scope of review is very limited. It is also submitted that under the guise of a review, a party cannot be permitted to reagitate and reargue the questions which have already been addressed and decided. With the assistance of the learned counsel for the parties, we have scrutinized the material on record. He placed reliance on the following judgments of this Court in support of his submissions. The scope of review jurisdiction has been delineated by this Court in a catena of judgments. We would not like to burden the present judgment by reproducing all those judgments. It is thus settled that the review would be permissible only if there is a mistake or error apparent on the face of the record or any other sufficient reason is made out. We are also equally aware of the fact that the review proceedings cannot be equated with the original hearing of the case. The review of the judgment would be permissible only if a material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. We are also aware that such an error should be an error apparent on the face of the record and should not be an error which has to be fished out and searched. the High Court had held the provisions of Section 2(g)(6) of the 1961 Act to be unconstitutional being violative of second proviso to Article 31-A of the Constitution of India. This Court in the first round has set aside the judgment of the Full Bench of the High Court and remanded the matter for deciding the factual aspect as to whether the lands in question were within the ceiling limit or not.

LEGAL PROVISIONS

  1. Haryana Village Common Lands (Regulation) Act, 1961 (the 1961 Act):

Section 2(g) (sub-clause 6): This section was amended by Haryana Act No. 9 of 1992, which is central to the dispute.

  1. Article 31-A of the Constitution of India:

This article protects laws providing for the acquisition of estates and extinguishment or modification of rights in estates from being challenged on the ground of inconsistency with the fundamental rights conferred by Part III of the Constitution. The case involves the interpretation and application of this article.

  1. East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (the Consolidation Act)
  2. Section 23-A: Deals with the management and control of lands after consolidation.
  3. Section 24: Pertains to the change of possession during consolidation.
  4. Section 18(c): Pertains to the earmarking of lands for common purposes during consolidation.
  5. Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949 (the Consolidation Rules)
  6. Rule 16(ii): Discusses the ownership and management of lands reserved for common purposes.

COURT’S ANALYSIS AND JUDGEMENT

At the outset, we must reiterate that the scope of review by this Court is very limited. The scope of review jurisdiction has been delineated by this Court in a catena of judgments. We would not like to burden the present judgment by reproducing all those judgments. It is thus settled that the review would be permissible only if there is a mistake or error apparent on the face of the record or any other sufficient reason is made out. We are also equally aware of the fact that the review proceedings cannot be equated with the original hearing of the case. The review of the judgment would be permissible only if a material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. We are also aware that such an error should be an error apparent on the face of the record and should not be an error which has to be fished out and searched. A perusal of the aforesaid paragraphs would reveal that in paragraph 6, this Court reproduced the provisions of Article 31 A, as amended. Analysing the said provision, the Constitution Bench held that, in the first two categories, the State “acquires” either an estate or rights in an estate i.e., there is a transference of an estate or the rights in an estate to the State. The Constitution Bench held that when there is a transference of an estate to the State, it could be said that all the rights of the holder of the estate have been extinguished. an estate to the State, it would properly fall within the expression “acquisition by the State of an estate”. It further held that, in the case of an acquisition by the State of a right in an estate it could also be said that the rights of the owner have been modified since one of the rights of the owner has been acquired. The Constitution Bench carved out the difference between “acquisition by the State” on the one hand and “modification or extinguishment of rights” on the other. It held that in the first case, the beneficiary is the State while in the latter case the beneficiary of the modification or the extinguishment is not the State. this Court recorded the facts in the said case. It recorded that some of the lands were owned by the Gram Panchayat prior to consolidation, which was used for common purposes. It further held that a fraction of each proprietor’s land is taken and formed into a common pool so that the whole area may be used for the common needs and benefits of the estate, mentioned above. It further held that the proprietors naturally would also share in the benefits along with others. this Court held that it was clear that the title remains in the proprietary body and in the revenue records the land would be shown as belonging to “all the owners and other right holders in proportion to their areas”. This Court held that the Panchayat would manage it on behalf of the proprietors and use it for common purposes and that it cannot use it for any other purpose. This Court held that the proprietors also enjoy the benefits derived from the use of land for common purposes. this Court, referring to second proviso, held that it is impossible to conceive that such adjustment of the rights of persons holding land under their personal cultivation in the interest of village economy was regarded as something to be compensated for in cash. this Court held that there was an essential difference between “acquisition by the State” on the one hand and “modification or extinguishment of rights” on the other hand. It was held that in the first case, the beneficiary was the State while in the latter case, the beneficiary of the modification or the extinguishment was not the State. This Court held that since the Panchayat would fall within the definition of the word “State” under Article 12 of the Constitution, if the acquisition is for the purposes of providing income to the Panchayat, it would defeat the whole object of the second proviso.  This court held that the Consolidation Officer could easily defeat the object of the second proviso to Article 31-A by reserving for the income of the Panchayat a major portion of the land belonging to a person holding land within the ceiling limit. In that view of the matter, we are of the considered view that the JUR needs to be recalled on the aforesaid grounds mentioned by us. The Review Petition is allowed. The judgment and order of this Court dated 7th April 2022 in Civil Appeal No. 6990 of 2014 is recalled and the appeal is restored to file.

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Judgement Reviewed by – HARIRAGHAVA JP

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Supreme Court: PMLA accused exempt from S.45 Conditions when furnishing bonds as per summons

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CASE TITLE – Tarsem Lal v. Directorate of Enforcement

CASE NUMBER – CRIMINAL APPEAL NO.2608 OF 2024

DATED ON – 16.05.2024

QUORUM – Justice Abay S. Oka & Justice Ujjal Bhuyan

 

FACTS OF THE CASE

 The Appellants have been denied the benefit of anticipatory bail by the impugned orders. The Hon’ble Supreme Court was dealing with cases of the accused who were not arrested after registration of the Enforcement Case Information Report (ECIR) till the Special Court took cognizance under the PMLA of an offense punishable under Section 4 of the PMLA.  The cognizance was taken on the complaints filed under Section 44 (1)(b). These are the cases where the Appellants did not appear before the Special Court after summons were served to them. The Special Court issued warrants for procuring their presence.   After the warrants were issued, the Appellants applied for anticipatory bail before the Special Court. The applications were rejected. Unsuccessful accused have preferred these appeals since the High Court has turned down their prayers. And the Hon’ble Supreme Court, by interim orders, had protected the Appellants from arrest.

 

LEGAL PROVISIONS

Section 19 of the Prevention of Money Laundering Act (PMLA), 2002, prescribes the procedure to be followed by the arrest authority, the Enforcement Directorate (ED) in money laundering cases.

Section 65 of the Prevention of Money Laundering Act (PMLA), 2002, prescribes that the normal rules for criminal procedure, laid out in the Code of Criminal Procedure (CrPC), apply to investigations, arrests, seizures, and other legal actions taken under the PMLA.

Section 44 of the Criminal Procedure Code (CrPC), 1973, prescribes the powers vested in the Magistrate to make an arrest, and following that, can then decide on bail as per CrPC provisions.

Section 88 of the Criminal Procedure Code (CrPC), 1973, it empowers the court to take a bond for appearance from someone who could be issued a summons or warrant for their presence in court or from someone who is already present in court.

 

CONTENTIONS BY THE PETITIONER

The learned senior counsel, appearing for the Appellants in Criminal Appeal at Special Leave Petition (Crl.) No.121 of 2024 and the learned counsel representing other appellants have made detailed submissions that the power to arrest vesting in the officers of the Directorate of Enforcement (for short, ‘the ED’) under Section 19 of the PMLA cannot be exercised after the Special Court takes cognizance of the offense punishable under Section 4 of the PMLA, and that ff an accused appears according to the summons issued by the Special Court, there is no reason to issue a warrant of arrest against him or to take him into custody. They further stated that there is nothing inconsistent between Section 88 of the Code of Criminal Procedure, 1973 (for short, ‘the CrPC’) and the provisions of the PMLA. On a conjoint reading of Sections 4 and 5 of the CrPC with Section 65 of the PMLA, was of the view that it was apparent that all the provisions of the CrPC would apply to proceedings before the Special Court from the stage of filing a complaint under Section 44 (1)(b). Only those provisions of the CrPC that are inconsistent with the specific provisions of the PMLA will not apply. As there is no inconsistency between Section 88 of the CrPC and the provisions of the PMLA if, after service of summons, the accused offers to furnish bonds for appearance in terms of Section 88 of the CrPC, the Special Court should normally accept the bonds. After furnishing the bonds, if the accused fails to appear before the Special Court, recourse can always be taken by the Special Court to Section 89 by issuing a warrant for procuring the presence of the accused before the Special Court. And noted that once cognizance is taken based on a complaint, the Special Court cannot exercise the power of remand under Section 167 (2) of the CrPC.

CONTENTIONS BY THE RESPONDENT

The Respondent submitted that once an accused appears before the Special Court, he is deemed to be in it’s custody. Though an accused against whom an allegation of commission of an offense punishable under Section 4 of the PMLA is made can apply for the grant of anticipatory bail, such application shall also be governed by the conditions in Section 45 (1). They further contended that money laundering is an offence against the nation. Therefore, taking into consideration the gravity and severity of the offence under the   PMLA, mandatory compliance with the requirements of Section 45 (1) must always be ensured.

 

COURT ANALYSIS AND JUDGEMENT

As the punishment for an offence punishable under Section 4 of the PMLA is of imprisonment for more than three years, in view of clause (x) of Section 2 of the CrPC, the complaint will be treated as a warrant case. Under Section 204(1)(b), the Court can issue either a warrant or summons in a warrant case. Therefore, while taking cognizance, the Special Court has the discretion to issue either a summons or warrant. The Hon’ble Supreme Court also referred to on of it’s previous Judgement, Inder Mohan Goswami & Anr. v. State of Uttaranchal & Ors where it held that as a general rule, unless an accused is charged with an offence of heinous crime and it is feared that he is likely to tamper with or destroy the evidence or evade the process of law, the issue of summons is the rule. This Court held that in a complaint case, at the first instance, the Court should directly serve the summons along with the copy of the complaint. If service is avoided by the accused, initially, a bailable warrant should be issued. If that is not effective, a non­bailable warrant should be issued. The Hon’ble Supreme Court stated that it failed to understand the basis of the submission of the learned ASG that after an accused appears before a Special Court in compliance with the summons, he shall be deemed to be in custody. And noted the object of issuing a summons is to secure the accused’s presence before the Court.  It is not issued for taking an accused in custody. if a bond is not furnished under Section 88 by an accused and if the accused remains absent after that, the Court can always issue a warrant under Section 70 (1) of the CrPC for procuring the presence of the accused before the Court. In both contingencies, when the Court issues a warrant, it is only for securing the accused’s presence before the Court. When a warrant is issued in such a contingency, the accused don’t need to apply for bail. The Hon’ble Supreme Court stated that after cognizance is taken of the offence punishable under Section 4 of the PMLA based on a complaint under Section 44 (1)(b), the ED and its officers are powerless to exercise power under Section 19 to arrest a person shown as an accused in the complaint. And since the Appellants were not arrested by the ED until the complaint was filed, the appeals succeed, subject to some conditions The appellants shall appear before the concerned Special Court within one month from the date of the Judgement and shall file an undertaking before the Special Court that they shall regularly and punctually appear before the Special Court. And further stated that warrants issued against the Appellants shall be cancelled only after one month and held that the grant of the Anticipatory Bail is unnecessary.

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Judgement Reviewed by – Gnaneswarran Beemarao

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