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15 Feb

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

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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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9 Feb

The tribunal did not direct the use of a waitlist to fill vacancies in Permanent commission: Delhi High Court.

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Case title: Maj Vishal Vs Union Of India And Ors.

Case no.: W.P.(C) 15908/2023

Decided on: 08.02.2024

Quorum: Hon’ble Justice V. Kameswar Rao, Hon’ble Justice Saurabh Banerjee

FACTS OF THE CASE:

The current writ is based on an order of the Armed Forces Tribunal. The petitioner is a Short Service Commissioned Medical Officer who has joined the Army Medical Corps. It was the petitioner’s case that, in recent years, a number of vacancies have been created for the grant of Permanent Commission to SSC Officers, and according to a letter from the Ministry of Defence dated September 3, 1998, 115 vacancies in the category of PC were to be filled by SSC Officers in the Armed Force Medical Corps. The petitioner was eligible for the PC, so he participated in the selection process, and his case was heard at the DPC in June 2012. The results were released in November of 2012. The petitioner was ranked 53rd on the merit list, but only 15 candidates were appointed as PCOs following the DPC in June 2012. In March 2014, similarly placed SSC Officers, who were also dissatisfied with the respondents’ action of filling only 15 vacancies instead of 50, approached the Tribunal, citing Major Mallikarjun’s case. It is sufficient to state that the Tribunal decided the OA on October 15, 2015, holding that the reduction of vacancies from 50 to 15 is illegal and that the 50 vacancies must be filled. The respondents were asked to fill 50 vacancies, but only 33 were filled, leaving 17 vacant. The petitioner filed a petition in tribunal, which was dismissed.

PETITIONERS CONTENTION:

The petitioner’s counsel contends that the Tribunal’s order is erroneous because the respondents have no right to refuse the grant of PC to a candidate who is on the panel or on the waitlist if vacancies exist. If a vacancy is not filled due to reasons such as unwillingness, invalidation, death, or resignation, candidates on the waiting list will be considered for the position. The respondents had a responsibility to operate a waiting list because 17 vacancies remained unfilled. They argued that it is a travesty of justice to overlook qualified candidates for PC and let them go to waste.

RESPONDENTS CONTENTION:

They contended that the Tribunal granted relief in the case of Major Mallikarjun solely on the basis of “legitimate expectations” of the top 50 candidates whose selection had already been approved by the previous DGAFMS, because the applicants were ranked among the top 50. They He also stated that the judgement was for the applicants and not an order in rem. It was extended to the top 50 candidates based on the Tribunal’s observations. In contrast, the petitioner was not on the Merit List’s top 50 and chose not to pursue the matter until 2017.

COURT ANALYSIS AND JUDGMENT:

The court held that, in light of the Tribunal’s decision in Major Mallikarjun S Biradar, the Tribunal correctly rejected the petitioner’s OA. Furthermore, this Court believes that because the upper age limit for PC is 30 years and the petitioner has used up his last chance in December 2012, no PC direction can be issued. Furthermore, the maximum service period for granting PC to an SSC Officer should be 9 years and 6 months, while the petitioner already served for more than 13 years.

The petitioner approached the Tribunal to state that the waitlist needs to be operated because the vacancies resulting from the Tribunal’s directions in Major Mallikarjun S. Biradar have not been provided. The court held that the petitioner could not have filed the OA on the basis of the direction provided by the Tribunal in Major Mallikarjun S. Biradar because no such direction had been given by the Tribunal.

The court stated that the issue of operating a waitlist is not relevant in light of the Tribunal’s decision in Major Mallikarjun S Biradar, which has reached finality and is no longer res interga. Furthermore, the petitioner’s claim is based on the Tribunal’s decision in Major Mallikarjun S Biradar, which makes no mention of the need to operate a list larger than 50. As a result, the applicants received relief because they were among the 50 candidates found to be qualified for permanent commission on merit. Therefore, the petition is dismissed.

Written by – Surya Venkata Sujith

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28 Dec

The Bombay HC Allows The Appeal Partially Regarding The Tribunal’s Order Of The Compensation Amount

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TITLE: National Insurance Co. Ltd. Vs Mrs. Lauretta Shashin Mogale And Ors.

CORAM: Hon’ble Justice Shivekumar Dige

DATE: 8th December, 2023.

CITATION: First Appeal No.1067 Of 2018

FACTS

On 26th July 2011, deceased Shashin Mogale was proceeding in his car bearing No. MH-14-CK-7387, he was on the way to his house. At that time, at about 1.55 am., a tanker bearing registration No.KA-01-C/2284 came from the opposite direction in rash and negligent manner and gave dash to the car of the deceased. Respondent No.4 was driving the said tanker. The deceased was admitted in the hospital but he succumbed to injuries. On the basis of evidence on record, the Tribunal has considered the salary of deceased at Rs.98700/- per month including arrears.

This appeal is preferred by the appellant-Insurance Company against the judgment and award passed by Motor Accident Claims Tribunal, Pune. The claimants have filed cross-objection for enhancement of compensation. It is the contention of learned counsel for the appellant that while calculating compensation, the Tribunal has considered arrears of salary of the deceased and, on that basis, compensation is awarded, which is not proper. Learned counsel further submitted that the accident occurred due to contributory negligence of the deceased. In the post- mortem report, it is mentioned that there was smell of alcohol. It shows that deceased was under the influence of liquor but this fact is not considered by the Tribunal.

It is the contention of learned counsel for respondent Nos.1 to 3/claimants that the Tribunal has deducted 30% future prospects as income tax, which is not proper. Learned counsel further submitted that consortium amount is not properly awarded, it be awarded. The Chemical Analysis Report is received after the conclusion of the trial. It is produced on record, it does not show that at the time of accident deceased was under the influence of liquor.

LAWS INVOLVED:

304A Of Indian Penal Code: Causing Death By Negligence.

Workmen’s Compensation Act 1923

ISSUES:

Whether there is a case of Contributary Negligence?
Whether the compensation amount decide by the Tribunal was valid or not?

JUDGEMENT:

The Appeal is partly allowed as the Court has deducted arrears amount from salary of deceased as well as some allowance amount from the salary. The cross-objection is partly allowed. The claimants are entitled for enhanced amount of Rs. 1671227/- @ 7.5% interest per annum from the date of filing of claim petition till realisation of the amount. Out of this amount, Rs.1,80,000/- is consortium amount, the claimants are entitled for interest on this amount at 7.5% from 1st November 2017 till realisation of the same.

The appellant-Insurance Company shall deposit the enhanced amount along with accrued interest thereon within 8 weeks after the receipt of this order.

Written by- Sanjana Ravichandran

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20 Sep

Madras High Court upholds the tribunal decision that the petitioners cannot claim the status of casual labourers under Railways.

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Title: C. Sekar and Others. Vs. Union of India.

Decided On: September 19, 2023.

W.P.No.15918 of 2019.

Coram: Hon’ble Mr. Justice D. Krishnakumar. And P.B. Balaji.

Facts:

The petitioners were engaged as casual labourers during the year 1983 under the Permanent Way Inspectors (presently Senior Section Engineers/P.Way) in the Engineering Department, Tiruchirapally Division, Southern Railway. The petitioners state that 345 casual labourers including the petitioners were brought into the supplementary casual labour register as on 2003. The grievance of the petitioners is that according to the Railway Board’s practice, all classified vacancies that became available upto 31.12.1982 should be filled from among casual labourers and substitutes, with a special relaxation in respect of Class IV vacancies in workshops due to special requirement of workshops and that despite being eligible the respondents have not regularized the petitioners, who were all casual labourers. The respondents filed a counter before the Tribunal denying the claim of the petitioners that they were all casual labourers. The Tribunal held that the petitioners never worked as casual labourers in the Railways and therefore they cannot claim any legal right to the status of casual labourers and consequently seek absorption. So, the petitioner approached this court.

Legal Analysis and Decision:

The petitioners vehemently contended before the court that the Tribunal erred in rejecting the petitioners’ claim that they were all entitled for absorption and in such process the Tribunal has not considered several instructions on the said subject that came to be issued by the respondent themselves and that when several casual labourers were included for appointment to the post of Trackman, the petitioners were also entitled for being absorbed. The respondents submits that the impugned order does not require any interference as admittedly the petitioners were not casual labourers and they have not been able to establish the said factum even before the Tribunal by producing any reliable or relevant piece of evidence and he therefore prayed for dismissal of the Writ Petition. The documents that are relied on by the petitioners are certificates issued by the Permanent Way Inspector, Mayiladuthurai Junction, Southern Railway Mayavaram. On a perusal of the various certificates that have been issued to the petitioners, it is evident that the petitioners were engaged as labourers for a brief period of time viz., between 28.12.1983 and 04.01.1984 to meet flood/emergency situation. The said certificates clearly spells out that the concerned labourers would not be entitled for engagement as casual labourers and that they will have no claim for being considered for engagement as such, in future, as a matter of course. It is also mentioned that no medical examination was carried out. Thus, it can be seen that the respondents have made it abundantly clear that the petitioners cannot claim to be casual labourers.

The petitioners have not produced any other documents before the Tribunal to establish their legal right to claim absorption. The Tribunal has also rightly considered all these factors and found that the petitioners cannot claim the status of casual labourers and even from the relevant documents it was noticed that they were not even listed in the casual labour service camp. The certificates issued to the petitioners and relied on by the petitioners before the Tribunal as well as before us does not give us a slightest indication that the petitioners were employed as casual labourers. On the other hand, it only clearly shows that the petitioners cannot claim the status of casual labourers. Thus, the court held that the order of the Tribunal is well reasoned and does not call for any interference.

JUDGEMENT REVIEWED BY JANGAM SHASHIDHAR.

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24 Jul

Delhi High Court dismissed the petition filed seeking impugning of an order by Debt Recovery Appellate Tribunal (DART) for not complying to the conditions

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Title: SZF EXPORTS PVT. LTD. & ANR. versus PUNJAB NATIONAL BANK & ANR.

Date of Decision: 17.07.2023

+ W.P.(C) 9408/2023

CORAM: HON’BLE MR. JUSTICE VIBHU BAKHRU

HON’BLE MR. JUSTICE AMIT MAHAJAN

Introduction

Delhi High Court dismissed the petition filed seeking impugning of an order by Debt Recovery Appellate Tribunal (DART) for not complying to the conditions of making the necessary pre-deposit.

Facts of the case

The petitioners have brought this case to contest an order made on July 14, 2023, in Miscellaneous Appeal No. 113/2023, SZF Exports Pvt. Ltd. & Anr. v. Punjab National Bank, by the Debts Recovery Appellate Tribunal, Delhi (hereinafter “the DRAT”).

The petitioners filed the aforementioned appeal in response to an order dated 22.06.2023, issued by the Debts Recovery Tribunal (hereafter “the DRT”). In that order, the DRT expressed the preliminary opinion that the respondent bank’s actions in accordance with the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereafter “the SARFAESI Act”) were not irregular.

The DRT had further denied the petitioners’ request to prevent the responding bank and court receiver from seizing the subject property. There is no disputing that the petitioners used the credit facilities and failed to repay them, as the Ld. DRT had acknowledged. In essence, the petitioners feel wronged by the property’s auction. The petitioners claim that Rule 9(1) of the SARFAESI Security Interest (Enforcement) Rules, 2002 (hereafter referred to as “the Rules”) was broken by the auction. According to the petitioners, the aforementioned Rule mandates that the auction buyer pay 25% of the total auction price (including any earnest money put) within 24 hours after the sale.

Analysis of the court

Rule 9(3) of the Rules’ straightforward wording makes it obvious that the deadline for paying 25% of the selling price must be calculated starting with the sale of an immovable property. The first phrase of Rule 9(3) of the Rules, “on every sale of movable property,” makes this clear. In this instance, the auction took place online on the MSTC platform on June 8, 2023.

Respondent No. 2 (hereinafter referred to as “the auction purchaser”) had entered the bidding process and had made the highest bid of 6,60,38,000/-. We do not see any merit in the petitioners’ claim that the property auction procedure was faulty. After having said the foregoing, it is important to note that the impugned decision, which the DRAT made denying to hear the petitioners’ appeal, is not based on the merits but rather on the claim that the petitioners had broken the requirement to pay the required pre-deposit. We don’t see any reason to change the contested order. Concededly, the petitioners’ chosen appeal could not be considered by the DRAT unless they made the required predeposit. It is common knowledge that the appellant has no legal entitlement to be given further time to make the deposit.

The necessary pre-deposit was reportedly not made. Consequently, we believe that the petitioners’ appeal was properly denied. This Court has also been told that PNB has acquired ownership of the disputed property.

The petition cannot be awarded any remedy. The identical is rejected.

Written By – Shreyanshu Gupta

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