Tag: #legalnews

-Report by Karan Gautam

The defendant Nos. 1 and 2 in O.S. No.6456 of 1993 filed an appeal under Article 136 of the Constitution of India, calling in question the judgment and decree dated 09.09.2010 passed by the Hon’ble High Court of Karnataka at Bengaluru in RFA No.1966 of 2007. During the pendency of the captioned appeal, the second appellant died and his legal heirs were impleaded as additional appellants 2.1 to 2.4. The original first appellant and the impleaded legal heirs of the deceased second appellant are collectively described as ‘appellants’. The plaintiff prayed for a judgment for decree of permanent injunction restraining the first and second defendants from interfering in the plaintiffs right, title and interest over and in the suit schedule property.

FACTS:

The appellants filed a written statement contending that the suit is not maintainable, that there is no prayer for possession, that the suit was not valued correctly, and that the real owners of the suit property were not arraigned as parties. Subsequently, they amended the plaint by adding schedules A, B and ‘C’ and prayers qua them. The prayers in the amended plaint read as under: a judgment and decree of perpetual injunction directing the defendants to restore the possession of the schedule premises to the plaintiff and not to interfere in the plaintiffs’ lawful possession and enjoyment of the schedule property.

PETITIONER’S CONTENTIONS:

The plaintiff/respondent adduced oral and documentary evidence in support of his claims, but the defendant did not lead any evidence. The Trial Court partially decreed the suit as per judgment dated 04.07.2007, holding that the plaintiff was entitled to recover possession of suit ‘B’ schedule property from the defendants and directed the defendants
to vacate and deliver it to the plaintiff within two months. The surviving defendants challenged the judgment and decree before the High Court in RFA No.1966 of 2007. They did not adduce any evidence before the trial court. The plaintiff objected to the maintainability of the appeal as the original suit was filed under Section 6 of the Specific Relief Act, 1963. The High Court dispelled the objection and remanded the matter to the Trial Court for fresh disposal. Leave was granted and the Civil Appeal was disposed of as per judgment dated 03.09.2009. The trial Court was directed to record the evidence and submit a report to the High Court to dispose of the appeal within the time stipulated. The

Court to which the case is remanded has to comply with the order of remand and acting contrary to it is contrary to law. In this case, the High Court remanded the matter to the trial Court for fresh disposal and directed the trial Court to record the evidence as directed by the High Court and forward it along with report to enable the High Court to dispose of the appeal taking into account the additionally recorded evidence of the defendants.

RESPONDANT’S CONTENTIONS:

The High Court dismissed the appeal of the appellants and confirmed the judgement and decree of the Trial Court. The appellants had raised multiple grounds to assail the judgment, including that the plaintiff/the respondent had failed to establish his possession over plaint ‘B’ schedule property. The High Court failed to consider the contention that the subject suit was abated due to the failure of the respondent to bring on record the legal representatives of Sri Hanumaiah, the third respondent, and Sri Rama @ Ramamurthy, the deceased second defendant, who had purchased the suit property from Sriman Madhwa Sangha and Sri Vittal Rao as per sale deed executed on 05.10.2000.

JUDGEMENT:

The High Court held that the defendants did not disclose their defence in their written statement and did not even contend that they are in possession of the suit property, which is based on the maxim ‘Possessio contra omnes valet praeter eur cui ius sit possessionis‘. The High Court is also correct in holding the question of maintainability of the suit in the affirmative and in favour of the respondent. The appellants argued that the suit ought to have been held as abated against all the defendants due to non-substitution of the legal representatives of the deceased defendant No. 3 upon his death, but the courts below have held that the original defendants failed to raise sufficient and appropriate pleadings in the written statement that they have better right for possession. The appeal is dismissed and there will be no order as to costs.

READ FULL JUDGEMENT: https://bit.ly/40u8WAU

-Report by Bhavana Bhandari

In a recent judgment, the Supreme Court of India held that a simple and literal interpretation of the severe requirements under Section 37 of the NDPS Act 1985 would make bail difficult to grant. The court was considering a criminal appeal in the case Mohd Muslim vs State (NCT) of Delhi to adjudicate whether grant bail to an undertrial prisoner who was arrested seven years ago under the Narcotic Drugs and Psychotropic Substances Act, 1985 for alleged participation in the distribution of a prohibited drug.

FACTUAL BACKGROUND:

The case involved the seizure of 180 kg of marijuana from a total of four co-accused individuals seven years ago, namely Nitesh Ekka, Sanjay Chauhan, Sharif Khan, and Virender Shakiyar/Sakyabar @ Deepak and afterward Mohd Muslim. When the co-accused were found in possession of the prohibited drug, the appellant, Mohd Muslim, was implicated based on a confessional statement. When his co-accused was granted bail, the Delhi high court refused him bail. Nevertheless, despite Mohd Muslim was not found in possession of ganja, the assistant attorney general of India, Vikramjit

Banerjee stated that ” he prima facie looks to be the brains behind the supply and transportation of narcotic drugs from Chhattisgarh.”

APPELLANT’S CONTENTIONS:

The appellant stated that because he has been imprisoned for more than seven years and the criminal the prosecution is only midway, the impugned judgment invalidated his plea for ordinary release under Sections 439 and 482 of the Criminal Procedure Code (hereafter “CrPC”) before the Delhi High. The court, even if he was not found in possession of any drugs. Yet, his co-accused were granted bail despite this.

RESPONDENT’S CONTENTIONS:

According to the prosecution, the four accused people who were allegedly in possession of 180 kg of marijuana—Nitesh Ekka, Sanjay Chauhan, Sharif Khan, and Deepak—were apprehended by the police as a result of secret details that were provided to authorities.

As part of the inquiry, the co-accused Nitesh Ekka was transported to Chhattisgarh to be identified, and on his request, the current appellant Mohd. Muslim was put into custody from the night of October 3, 2014, to October 4, 2015.

Based on several considerations, including the gravity of the alleged offenses, the severity of the sentence, and the appellant’s claimed involvement, the district court denied the appellant’s request for bail. It was observed that he had been in constant touch with his co-accused during the commission of the crime and that key witnesses had not yet been interviewed.

Further, the challenged decision states that the present accused was in prima facie frequent touch with other co-accused, as evidenced by phone records, and that the main accused, Virender Singh @ Beerey had made payments to the appellant’s bank account repeatedly. During the trial, one of the witnesses reportedly stated that the current appellant gave him Rs. 50,000.

As there was a prima facie case against him and no justification for relying on Section 37 of the NDPS Act’s exclusions, the application for normal bail was denied, and the trial court was ordered to accelerate and conclude the matter within six months.

JUDGEMENT:

This observation was stated in the judgment by a bench of Justices S. Ravindra Bhat and Dipankar Datta considered that the requirement of Section 436A, which applies to offenses implies that the grant of bail based on an unreasonable delay in the trial cannot be considered to be restricted by Section 37 of the Act. The bench observed that section 37 of the Narcotic Drugs and Psychotropic Substances, 1985 positions that a court may only issue bail to an accused person if it is convinced that there are reasonable reasons to believe that he is innocent of the crime and that he is not likely to commit another crime.

The Supreme Court further cited the decision of State of Madhya Pradesh v. Kajad [(2001) 7 SCC 673, which said that a ‘liberal’ approach to Section 37 of the NDPS Act should not be applied. The bench ruled that to effectively rule out the grant of bail completely, the appellant’s request for release must be evaluated ” within the framework of the NDPS Act, specifically Section 37.”

CONCLUSION:

As a response, the bench led by Justice Bhat remarked that the supreme court had maintained such stringent conditions in light of the balance between two conflicting goals, namely, the right of an accused to enjoy freedom based on the presumption of innocence and the interest of society at large. And yet, it also acknowledged that the only way a particular condition in law, like the one in Section 37 of the NDPS Act, could be taken into account within the bounds of the constitution is by relying on a prima-facie finding of the matter based on the evidence on the record. The bench ruled unequivocally that any alternative reading would result in a person accused of offenses such as those authorized under Section 37 of the NDPS Act is completely denied bail.

Therefore, since the appellant has been in detention for more than 7 years and 4 months and the the trial is moving at a snail’s pace, bail cannot be denied to an accused charged with NDPS Act offenses due to the operation of Section 37 where there has been an excessive delay in the trial.

READ FULL JUDGEMENT: https://bit.ly/3nuRIEN

-Report by Harshit Yadav

This is an appeal filed under Section 173 of the Motor Vehicle Act, 1988 against the award passed by the Presiding Officer, MACT, North West District, Rohini Courts, Delhi in MACT No. 50797/2016. The case involves the death of Naresh due to injuries suffered in a motor vehicular accident that occurred on 08.05.2014 in front of the NDPL office, inside Shiv Vihar Road, Karala road, Delhi. Naresh was driving his engine-fitted rickshaw thela when a Tata Tempo, which was being driven by its driver in a rash and negligent manner, hit the rickshaw thela with great force. Due to the impact, Naresh fell and sustained grievous injuries which resulted in his death. An FIR was registered at PS Kanjhawala. The main issues involved in this appeal are whether the compensation awarded towards “loss of consortium” is justified and proper and whether the compensation awarded towards “loss of love and affection” would be payable or not.

FACTS

The case involves the death of Naresh, who died as a result of injuries suffered in a motor vehicular accident on 08.05.2014. Naresh was driving his engine-fitted rickshaw thela when suddenly a Tata Tempo bearing registration no. HR-46D-0998, which was being driven by its driver in a rash and negligent manner, hit the rickshaw thela of the deceased with great force. Due to the impact, Naresh fell and sustained grievous injuries which resulted in his death. The main issues involved in this appeal are whether the compensation awarded by the learned Tribunal towards “loss of consortium” is justified and proper and whether the compensation awarded towards “loss of love and affection” would be payable or not. The appellant’s counsel argued that the compensation towards the non-pecuniary heads shall be Rs. 70,000/- only in a lump sum and that the rate of interest awarded by the learned Tribunal is on the higher side and should be reduced to 6% per annum. The Tribunal had awarded a sum of Rs. 2,00,000/- towards loss of consortium and Rs. 2,50,000/- towards loss of love and affection to the respondents.

ISSUES RAISED

a) Whether the compensation awarded by the learned Tribunal towards “loss of consortium” is justified and proper?

b) Whether the compensation awarded towards “loss of love and affection” would be payable or not?

CONTENTIONS

The appellant argues that the learned Tribunal has erroneously awarded compensation towards loss of consortium and loss of love and affection. They contend that as per recent judgments and prevailing law, compensation towards loss of love and affection should not have been awarded. Furthermore, the compensation awarded towards the loss of consortium is excessive, and only the widow of the deceased is entitled to such compensation. The appellant also contends that the rate of interest awarded is on the higher side and should be reduced.

The respondent argues that the compensation awarded by the learned Tribunal towards loss of consortium and loss of love and affection is justified and proper. They contend that as per settled law, compensation towards loss of consortium should be awarded to all the claimants, including the children of the deceased. Furthermore, compensation towards loss of love and affection is also payable as per recent judgments. The respondent also contends that the rate of interest awarded is appropriate and should not be reduced.

JUDGEMENT

Based on the facts presented, the appeal was filed under Section 173 of the Motor Vehicle Act, 1988 against an award passed by the Presiding Officer, MACT, North West District, Rohini Courts, Delhi in MACT No. 50797/2016. The appeal sought to challenge the compensation awarded towards “loss of consortium” and “loss of love and affection.”

The accident occurred on May 8, 2014, in front of the NDPL office on Shiv Vihar Road, Karala road, Delhi, where the deceased was driving his engine-fitted rickshaw thela. A Tata Tempo, driven by the offending vehicle’s driver in a rash and negligent manner, hit the rickshaw thela, resulting in the deceased falling and sustaining grievous injuries, leading to his death. An FIR was registered at PS Kanjhawala under sections 279/304A IPC.

After hearing the counsel for the appellant and reviewing the award, the court found that the compensation awarded towards “loss of consortium” was justified and proper, as per the settled law that all claimants are entitled to compensation under this head. However, regarding the compensation awarded towards “loss of love and affection,” the court referred to the judgment of National Insurance Co Ltd. vs. Pranay Sethi & Ors. and reduced the compensation to Rs. 70,000/- only in a lump sum to be payable only to the widow of the deceased. The court also reduced the rate of interest from 9% to 6% per annum.

Therefore, the court dismissed the appeal in part, reduced the compensation awarded towards “loss of love and affection” to Rs. 70,000/- payable only to the widow of the deceased, and reduced the rate of interest to 6% per annum.

READ FULL JUDGEMENT: https://bit.ly/42OTwbY

-Report by Sejal Jethva

In the case of Shiva Kumar v. State of Karnataka, the IPC’s Section 302 was used to punish the offence. A portion of the appeal is upheld.

FACTS

The appellant was a 22-year-old man. He emphasized the appellant’s young wife, young child, and elderly parents. He also has no priors and doesn’t pose a threat to society. Also, he has displayed consistently good behaviour while incarcerated, and he even finished a B.A. degree course while incarcerated. Last but not least, he emphasised that the appellant had served roughly seventeen years and two months of his sentence.

The Indian Criminal Code, 1860 (often referred to as the “IPC”) punishes the appellant for offences that fall within Sections 366, 376, and 302. The penalty for the offence punishable under Section 302 of the IPC is the only issue under dispute. The appellant was given a life sentence of harsh imprisonment by the learned Sessions Judge (Fast Track Court). To contest the verdict and sentence, the appellant chose to appeal to the High Court. The appeal for a longer sentence was preferred by the State Government. By the contested judgment, the High Court dismissed both appeals. This Court merely gave notice of sentences on April 21, 2017.

APPELLANT’S CONTENTION

Knowing the law established by the Constitution Bench of this Court in the case of Union of India v. V. Sriharan alias Murugan & Ors.1, the learned solicitor representing the appellant-accused argued that only the Constitutional Courts, not the Sessions Courts, have the authority to impose a modified sentence. He argued that the Constitutional Courts can only commute an accused person’s death sentence if they also grant a life sentence, whether it be for all eternity or for a set amount of time. The courts have no authority to impose a different punishment if the death penalty is not applied. Additionally, he cited the court’s ruling in Swami Shraddananda alias Murali Manohar Mishra v. State of Karnataka.

RESPONDENT’S CONTENTION

Even though the death penalty has not been imposed, the learned attorney representing the respondent-State contends that the Constitutional Courts are not helpless to impose modified sentences taking into account the seriousness of the offence, the behaviour of the accused, and other pertinent factors. He argued that the Constitutional Courts’ authority to provide a modified sentence could not be curtailed by claiming that they can only do so when the issue is whether to commute a death sentence. He argued that the most severe sentence was considered in this case’s facts by citing the Trial Court and High Court’s rulings. In any event, he argued, by imposing a sentence that would last the remainder of the appellant’s life, the High Court had, after taking into account all the relevant factual circumstances, reiterated the Sessions Court’s position.

JUDGEMENT

1. The facts are such that they will shock any court’s conscience. The deceased woman, who was happily married, worked for a reputable corporation with an office in Bengaluru’s Electronic City. She had to work till late at night or even early in the morning due to the nature of her job. Her transportation was previously provided by the employer in the form of a car. The business used to give staff automobiles to drive on various predetermined routes. The dead departed the workplace that fateful day at 2:00 a.m. in a car provided by the business. She previously rode in a car that travelled Route 131. She was told by the appellant, the driver, that day that the vehicle used for route 131 was not available. She was informed by the appellant that she would have to use his vehicle, which is on Route 405 to get there. Therefore, the deceased sat down in the car that the accused was operating. The deceased’s maternal uncle filed a complaint and claimed that the person was missing. Finally, at the appellant’s request, her deceased body was found. The deceased’s clothing, shoes, and other personal effects were discovered close to the body. The charge of both the offence under Section 366 of the IPC and the offence under Section 376 of the IPC was successfully established by the prosecution. Additionally, the appellant-accused was found guilty of the crime under Section 302. The victim, who was 28 years old, had his life brutally taken from him.

2. In light of this, we change the Trial Court’s original sentence for the offence covered by Section 302 of the IPC. We order that the appellant be sentenced to life in prison. Additionally, we order that the appellant not be freed until he has served his full 30-year sentence. The appeal is partially upheld to the extent stated above.

READ FULL JUDGEMENT: https://bit.ly/3TX7kwV

-Report by Bhavana Bhandari

On 24.03.2023, the Supreme Court of India dismissed a plea by a prisoner seeking to allow parole granted during the COVID-19 outbreak to be included as a part of his actual term since it was compulsory in the case of Anil Kumar v. State of Haryana and Others. Taking reference from an earlier court decision, the bench unanimously decided that the period of parole should be aloof when deciding the term of imprisonment.

FACTUAL BACKGROUND:

Anil Kumar, the petitioner, and prisoner, was released on emergency parole as a result of the decision taken by the High-Powered Committee, which was established following the instructions provided by the Supreme Court in SWM (C) No.1/2020. The subsequent directives said that prisoners who had been freed earlier on emergency parole under the High-Powered Committee’s decision should not be ordered to surrender until further orders and not on any application filed by the petitioner or by Section 3(3) of the Haryana Good Behaviour Prisoners (Temporary Release) Act, 1988, led to the petitioner’s release (hereinafter referred to as the Act, 1988). Whereupon, the petitioner prayed that the court considers the time of parole as part of his real punishment.

APPELLANT’S CONTENTIONS:

The appellant’s counsel argued that in some states, the term of release on interim parole is directed to be considered against the entire duration of imprisonment of the convict/prisoner. If the petitioner had not been granted temporary parole and had instead served his sentence after a predetermined amount of time, he would have been eligible for remission. Moreover, since the petitioner was discharged on interim parole, his entitlement to request a remission would be further prolonged, which would be against the interests of the petitioner if the period in question is not taken into account when calculating the petitioner’s complete sentence.

RESPONDENT’S CONTENTIONS:

The learned counsel for the State stated that the petitioner was convicted of the charges under Sections 302/34 of the IPC and sentenced to life imprisonment. Since then, the Apex Court has maintained the conviction and sentence imposed by the learned Trial Court. Hence, in line with the law and the punishment pronounced by the learned Trial Court, the petitioner must serve and complete his full term of life imprisonment.

RELIANCE ON FACTS:

The court relied on the legal guidelines established in its January 5 decision on a petition submitted by Rohan Dhungat, who is now serving a life sentence for the murder of a person. In Rohan Dhungat’s case, the Apex Court had rejected a challenge to a decision made by the Goa Bench of the Bombay High Court on Rule 335 of the Goa Prison Regulations and Section 55 of the Prisoners Act 1894 (Extramural care, control, and employment of inmates), which states that the period of furlough and parole shall be considered as part of the sentence except in case there is a breach committed by the prisoner. However, noting that if the inmates’ request for the parole period to be taken into account when calculating the 14 years of real imprisonment is permitted, any prisoner who may be prominent might receive parole several times because there are no constraints on how many times it can be given. If the prisoners’ application is granted, it could undermine the entire goal and purpose of actual imprisonment.

JUDGEMENT:

The three-judge bench comprising Justices MR Shah, CT Ravikumar, and Sanjay Karol stated that the court had ruled that this time of release must be disregarded when determining the length of real incarceration. To avoid overcrowding, inmates were granted a term of parole during the COVID-19 pandemic, however, this time cannot be added to the prisoner’s real length of imprisonment.
In this instance, the legal issue was whether the Covid leave time of a parolee’s probation may be taken into account when determining the length of the prisoner’s actual sentence. The bench ruled that the petitioner convicted under section 302 (the punishment for murder) must serve the period specified and that the emergency parole term must be subtracted from the sentence; as a result, the court cannot provide relief. While Ms. Ritu Kumar, experienced counsel, addressed the appellant, Ms. Bansuri Swaraj represented the respondents on behalf of the State.

FINAL WORDS:

Therefore, the bench declared in its verdict that the suo-moto decision of parole to be granted to convicts during Covid was exclusively to avoid overcrowding and ensure the general health welfare of the prisoners, and shall not be deemed to be part of their real imprisonment in any manner.

READ FULL JUDGEMENT: https://bit.ly/40AKpcU

-Report by Bhavana Bhandari

In the case of Arup Bhuyan v. State of Assam Home Department and anr. 2023 (SC) 234, the Supreme Court ruled on Friday that membership in an organization deemed unlawful by the Central government is sufficient to establish an offence under the Unlawful Activities Prevention Act (UAPA). In the decision, the court reversed its previous ruling from 2011, in which it had concluded that mere membership in a prohibited organization under the Act could not be grounds for conviction unless it was accompanied by some overt violent behaviour. Whereas the Solicitor General of India represented the respondents, Senior Advocate Sanjay Parikh represented the appellants.

FACTS:

In 2011, a two-judge bench comprising justices Markandey Katju and Gyan Sudha Mishra exonerated Arup Bhuyan and Indra Das for the violations of the Terrorist and Disruptive Activities (Prevention) Act (TADA). The judgment was reached relying on an alleged confession statement and that mere membership in a prohibited organization under the Act could not be considered a valid ground for conviction under the Act.

In State of Kerala v. Raneef, the 2011 Bench made the pertinent observation that, among other things, the American Bill of Rights and a few US Supreme Court decisions maintaining that Section 3(5) of the Act cannot be properly interpreted without violating Articles 19 and 21 of the Constitution. Therefore, a person is not necessarily a criminal just because they belong to a prohibited organization until they use violence, inspire others to use violence, or cause a commotion by using violence or inciting others to use violence. “

When the Union Government filed a request for reference in 2014, a two-judge panel composed of Justices Dipak Misra and AM Sapre referred the case to a larger bench. The matter was finally heard on February 8, 2023, and a conclusion was reached on March 24, 2023.

APPELLANT’S CONTENTIONS:

Senior Attorney Sanjay Parikh argued for an intervenor-NGO that in cases involving substantive rights, such as personal liberty, provisos might be read down even when not directly challenged. He argued that as civil freedoms are protected by the Indian and American constitutions, it would be improper to invalidate the orders that are being challenged because they were based on US court decisions.

RESPONDENT’S CONTENTIONS:

Solicitor General Tushar Mehta, appearing as counsel for the Central Government asserted that it was intrinsically difficult to show formal involvement in prohibited organizations since the requirements mentioned were a barrier and a safeguard. The SG further emphasized that under the current structure, terrorist activity might be permitted as long as it wasn’t ostensibly committed under the banner of groups that were outlawed or considered a terrorist.

The Union government and certain state governments contended that the supreme court’s reading of the UAPA cases had effectively read down the aforementioned proviso by referencing the American Bill of Rights, making it more challenging to fight terrorism. The Central Government argued that the Court could not pronounce the contents of an anti-terror law unconstitutionally without first hearing its defences and relying on probable legal abuse.

The Court’s reliance on the Bill of Rights was improper in light of the Supreme Court’s prior decision in Babulal Parate v. State of Maharashtra, which was decided by a five-judge panel. Consequently, American jurisprudence could not be authorized under the constitution as there are not any provisions in the American Constitution that equate to Article 19 Clauses (2) through (6).

JUDGEMENT:

The decision came from a three-bench judge comprising of justices MR Shah, CT Ravikumar, and Sanjay Karol holding the validity of section 10(a)(i) of the Unlawful Activities Prevention Act (UAPA). Since the primary intention of the UAPA act is to prevent certain unlawful activities and penalize people who are members of such unlawful groups under the Act. As a result, Section 10(a)(i) is fully compliant with Articles 19(1)(a) and 19(2) of the Constitution and, as a result, with the purposes of the UAPA.

Another issue that the Court had to address was whether or not sections of central legislation may be read down in a situation where those provisions were not challenged and the central government had not been heard. In this regard, the Court found that the State would suffer severe injury if the same was not heard. The Centre was required to submit arguments to support 10(1)(i) and to establish the goals and objectives. Hence, this Court should not have read down Section 10(a)(i), especially when the Section’s constitutionality was not in doubt.

FINAL WORDS:

The bench stated in its ruling today that the 2011 decisions were made in bail petitions when the constitutionality of the rules was not contested. In addition, past decisions have upheld the constitutionality of the UAPA and TADA. The 2011 pronouncements were also heavily criticized for interpreting the laws without addressing the Union of India.

READ FULL JUDGEMENT: https://bit.ly/3K5riCi

-Report by Sejal Jethva

In the matter of BHUSHAN KUMAR GUPTA & ORS. vs. RAJINDER KUMAR GUPTA, Order XII Rule 6 of the Code of Civil Procedure, 19081, the drawl of a preliminary decree of partition with regard to property is requested.

FACTS

The late Sh. Hem Chander Gupta unquestionably bought the suit property on September 12, 1976. The following information about Sh. Hem Chander Gupta’s wife and five boys who he is said to have left behind after his intestate death on December 31, 1999: –

i. Smt. Premwati Gupta

ii. Shri Mange Ram Gupta

 iii. Shri Rajinder Kumar Gupta

 iv. Shri Santosh Kumar Gupta

v. Shri Satish Chander Gupta

 vi. Mr. Bhushan Kumar Gupta

On July 12, 2018, the mother, Premwati Gupta, also passed away intestate. Her 1/6th undivided portion in the suit property, therefore, passed to her five surviving sons, and the plaintiffs claim that as a result, each of the five surviving sons acquired a 1/5th undivided stake in the suit property.

According to reports, Sh. Mange Ram Gupta, the oldest son of the late Sh. Hem Chander Gupta and Smt. Premwati Gupta gave his daughter-in-law Smt. Shalini Gupta his 1/5th undivided share. It is important to highlight that the plaintiffs in the current lawsuit are Sh. Santosh Kumar Gupta, Sh. Satish Chander Gupta, Sh. Bhushan Kumar Gupta, and Smt. Shalini Gupta. Only Sh. Rajender Kumar Gupta, the other son of the late Sh. Hem Chander Gupta and Smt. Premwati Gupta, and Smt. Premwati Gupta, are opposed to the relief for division.

APPELLANT’S CONTENTION

The plaintiffs addressed the defendant to request a mutually agreeable division of the subject property, with each party having a right to a 1/5th portion. It is claimed that the plaintiffs approached the defendants regarding a partition that would be impacted by metes and bounds. The current lawsuit was filed on April 18, 2022, as a result of the aforementioned request not being granted.

 Learned lawyers appearing on behalf of the plaintiffs argued that, given the accepted position in the parties’ briefs that the property was itself acquired, the plea of ​​oral division could be clearly rejected. Furthermore, since the property was acquired by the father of the parties himself and he remained the owner during his lifetime, there could have been no division, at least until his death, according to which the property could have been divided between his legal heirs. It was also claimed that if the father wished at all, the property could have been transferred either by gift or by transfer. It was argued that neither the plea of ​​oral division nor the plea of ​​such division raised by the father while he was alive could possibly stand.

RESPONDENT’S CONTENTION

In these proceedings, the defendant has submitted a written statement. It is important to note that the written declaration does not contest the fact that the suit property was bought by the late Sh. Hem Chander Gupta. The property would unquestionably be seen as having been bought by the late Sh. Hem Chander Gupta on his own. The sole argument put out is that the late Sh. Hem Chander Gupta, who was the Class-1 legal heir, requested all of his sons during his lifetime to divide the suit property on or around March 1999. According to the defendant, parties agreed to an equitable split of the suit property and that an oral partition came about at that time.

JUDGEMENT

1. The Court is adamant that the presented defence is completely unworthy of consideration after giving it full attention. The defendant has not provided any evidence to support how an oral partition could have been created or established during the father’s lifetime. It was also uncontested that the fathers of the parties were the only ones to obtain the land.

2. As a result, a preliminary partition decree for the property at 14/1 Shakti Nagar, Delhi, is issued, designating plaintiffs Bhushan Kumar Gupta, Satish Chander Gupta, Santosh Kumar Gupta, Shalini Gupta, and defendant Rajinder Kumar Gupta as each owning a fifth undivided portion of the property.

3. The creation of a preliminary decision for division.

4. It is regarded as necessary to give the parties some time to decide if they can divide the property by metes and bounds. If not, a definitive decree of partition and/or sale of the property, including through the parties placing inter se bids, shall be made on the next hearing date.

READ FULL JUDGEMENT: https://bit.ly/3K7WYXO

-Report by Harsh Singh Rajput

In the case of Delhi Development Authority and Govt. of NCT of Delhi vs Batti and others, the respondents in this case i.e., Batti and others filed a writ petition in Delhi high court to claim the compensation of the land which was taken by them 20 years back for the development project and later the two authorities i.e., plaintiffs appeal before SC against the compensation requested by respondents.

FACTS:

Delhi development authority and Govt. of NCT of Delhi appeal before the SC with the Civil Appeal no 2402/2008. Under section 4 of the land acquisition act, 1894(for short ‘the Act’) an order was passed on 23-06-1989 for the acquisition of land measuring about 3,500 hectares for the development of part of Delhi and this order was further followed up by notification under sec 6 of ‘the Act’ on 20 June 1990.

The respondent was the wife of Mange Ram who was the son of the Late Harkesh. The issue was that the late Father-in-law of respondent i.e., Mr. Harkesh was asserted as the owner of the 1/12th share i.e., (01 bighas and 19 biswas and 03 biswansi from the land area measuring upto 23 bights and 2 biswas having khasra no. 281/4(10-11). 282/4(10-3) and 80(2-8)).

Now writ petition was filed by the respondent in 2015. They stated that the other party hasn’t paid them the compensation and also the possession of land hasn’t been taken and the acquisition has lapsed. But the high court stated that the land was handed over to the forest department as per the facts after the possession of the land was taken. And it was taken because the land comes under the ‘O’ zone. And HC also stated the fact that land was also vested in Gaon Sabha. Therefore, the respondent will not be given any compensation and due to the dispute over the titles regarding land, the issue related to compensation was kept open.

The constitution bench stated two conditions to prove the acquisition which are as follows:

1. Taking over the possession of the land or,
2. Payment of compensation

And the bench stated that from the facts, we came to know that the acquisition was done after the land was taken in possession, and due to the dispute in the title, the HC also had kept the question of title open.

The question of acquisition which was holdup by the Delhi high court in this case by relying upon the judgment of this court (SC) in the case of Pune municipal corporate and another’s case ‘supra’ was overruled by relying on the judgment of this court in the Indore Development Authority.

RESPONDENT’S CONTENTION:

Learned counsel on behalf of the respondent provided the facts that respondent no. 1 is the daughter-in-law of later. Harkesh. Harkesh was entitled to compensation as he was the owner of the land as per the records and he also have the Bhoomidari rights. And they submitted that the land was not been taken up also by the authorities.

JUDGEMENT:

The honourable Supreme Court allowed the present appeals of the plaintiff and stated that there will not be any compensation to the predecessor or respondent due to the dispute regarding the title of the land, also the land was found to be recorded in the name of Gaon Sabha.

Also, there were no records of any action or step for seeking compensation on behalf of the respondents and the person who owned the land 20 years ago. So by putting aside the impugned order of HC, the present appeals are allowed and the writ petition of respondents in HC is dismissed.

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-Report by Harshit Yadav

In this case, four individuals were accused of various offences related to a fraudulent loan obtained by a company called M/s NaftoGaz India Pvt. Ltd. from a consortium of banks led by the State Bank of India. The accused individuals had applied for anticipatory bail, which was rejected by the High Court of Judicature at Allahabad. The Supreme Court heard the appeals challenging the rejection of anticipatory bail and made its decision based on various factors. The main point being made by the Hon’ble supreme court is that there were certain factors that favoured the grant of anticipatory bail to the accused individuals, despite the serious nature of the allegations against them.

FACTS:

The case involves an FIR registered by Corporation Bank alleging offences under Sections 420, 467, 468, 471 read with Section 120B IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. The accused, namely Shri Mahdoom Bava, Shri Deepak Gupta, Shri Akash Gupta, and Shri Yatish Sharma have filed appeals challenging the orders of the High Court of Judicature at Allahabad rejecting their applications for anticipatory bail. The accusations involve the alleged creation of a fraudulent account by M/s NaftoGaz India Pvt. Ltd., which secured certain credit facilities from a consortium of banks led by the State Bank of India. The prosecution alleges that the Company connived and conspired with advocates and valuers hired by the consortium of banks, and therefore the promoters/directors of the Company, the guarantors as well as those involved in the sanction of the loan were guilty of the offences complained. The Supreme Court granted anticipatory bail to the accused based on three factors: (i) CBI did not require the custodial interrogation of the accused during the period of investigation from 29.06.2019 (date of filing of FIR) till 31.12.2021 (date of filing of the final report), (ii) CBI only required the presence of the accused before the Trial Court to face trial, and (iii) all transactions out of which the complaint had arisen, seem to have taken place during the period 2009-2010 to 2012-13.

ISSUES RAISED:

1. Whether the accused persons are entitled to anticipatory bail in the light of serious allegations levelled against them in the FIR filed by the Corporation Bank, under Sections 420, 467, 468, 471 read with Section 120B IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988.
2. Whether the custodial interrogation of the appellants is required, given that the CBI did not require their custodial interrogation during the investigation period, and whether the custody of the appellants is necessary at this stage.
3. Whether the presence of the accused is required before the trial court for trial or not, and whether opposing the anticipatory bail request at this stage is justified in light of the CBI’s stand that only the presence of the accused before the Trial Court is required.
4. Whether the transactions in question took place during the period 2009-2010 to 2012-2013, and whether the accused should be granted anticipatory bail in the absence of any evidence of their involvement in the alleged fraud.

CONTENTIONS:

The appellants, in this case, have challenged the order of the High Court of Judicature at Allahabad, which rejected their application for anticipatory bail. The appellants have argued that they are entitled to anticipatory bail despite the serious allegations levelled against them in the FIR filed by the Corporation Bank. They have contended that the CBI did not require their custodial interrogation during the investigation period, and therefore, their custody is not necessary at this stage. The appellants have also argued that the CBI only required their presence before the trial court for trial, and opposing their anticipatory bail request at this stage is not justified.

On the other hand, the respondents have opposed the appellants’ request for anticipatory bail, arguing that the allegations against them are serious in nature, and their custodial interrogation is necessary to unearth the truth. The respondents have argued that the appellants cannot be granted anticipatory bail merely because the CBI did not require their custody during the investigation period. They have also contended that the presence of the accused before the trial court is not enough, and their custody is necessary to ensure that they do not tamper with the evidence or influence witnesses.

JUDGEMENT:

In this case, several accused individuals have appealed against the rejection of their applications for anticipatory bail by the High Court of Judicature at Allahabad. The First Information Report in the case was registered on 29.06.2019 at the instance of the Corporation Bank, for alleged offences under various sections of the Indian Penal Code and the Prevention of Corruption Act, 1988. The allegations involved a company securing credit facilities from a consortium of banks and committing fraud, with the accused including the company’s promoters/directors, guarantors, and those involved in sanctioning the loan. The CBI completed its investigation and filed a final report on 31.12.2021, with the Special Court issuing a summons for the appearance of the accused on 07.03.2022. The appellants sought anticipatory bail, which was rejected by the Special Court and confirmed by the High Court. However, the Supreme Court found that the CBI did not require the custodial interrogation of the appellants during the investigation period and that the CBI only wanted the presence of the accused before the Trial Court to face trial, which may not be proper grounds to oppose anticipatory bail at this stage. Therefore, the Supreme Court granted anticipatory bail to the appellants.

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-Report by Sejal Jethva

In this case, the custody of two children—who should live with their mother or father—is being settled between SALIM YOUSUF JAMADAR VS RESHMA SALIM JAMADAR

FACTS:

On May 19, 2010, the appellant and respondent were married in Pune in line with the customs and principles of Mohammedanism. The respondent-wife gave birth to a girl called Akira on May 16, 2014, and a son named Arsalan on September 21, 2011, both outside of marriage. Arsalan is currently about 11 years old, while Akira is about 8 years old. The respondent and her children were then violently forced out of her marital home on August 28, 2019, due to a marital quarrel. It is claimed that the children were kidnapped from the respondent’s wife’s custody at her parent’s house in Aloor by the appellant’s relatives under the guise of feeding them chocolates.

On October 11, 2021, the respondent-wife filed a case in the Omerga Court of Judicial Magistrate (First Class) under the provisions of the Protection of Women from Domestic Violence Act. The court only granted the respondent-wife visitation rights, allowing her to see her children once a month in Pune at the office of the protection officer, without interfering with the minor children’s custody arrangements with their father. The respondent-wife does not contest the court’s decision to deny custody and solely grant visitation rights in the aforementioned judgment. The wife ultimately filed a procedure under Section 8 of the Guardians and Wards Act in the trial Court over the custody of minor children as a result of the marital strife between the parties.

APPELLANT’S CONTENTION:

The attorney for the applicant has submitted a written statement outlining the events leading up to the Respondent’s (wife) filing of this application under Section 8 of the Guardians and Guardians Act. He also brought up the issue of jurisdiction, claiming that an educated trial judge had incorrectly ruled that the children had a habitual abode in Alloa based solely on inference. Welfare and child protection Concerning the query, he said that the Scientific Court had neglected to consider a few clauses in Articles 17 and 25 of the Guardians and Guardians Act.

RESPONDENT’S CONTENTION:

The respondent-wife vehemently disagreed with the arguments put out by the knowledgeable Attorney representing the appellant’s spouse. He defended the contested order and argued that the learned trial court correctly dismissed the husband’s complaint about jurisdiction. He emphasised that although the children were enrolled in an English-medium school in Aloor, the appellant-husband requested that they attend an Urdu-medium school instead, which is unquestionably dangerous for the development of young children.

He did reasonably acknowledge, however, that up until this point, the respondent-wife had not requested maintenance from her husband. He contends that the respondent, who does not leave the house for employment, is better able to provide for the children’s needs because the appellant is unable to do so because of his continued absence from the home for work. He called for the appeal to be dismissed as a result.

JUDGEMENT:

1. Upon reading the contested decision, it is clear that this aspect of the highest consideration was not discussed in detail by the competent court, given the applicant’s capacity. It can be seen that the entire judgment discusses the jurisdictional aspect and the Labor Court only made a puzzling statement on this aspect of the child’s well-being in the last paragraph. , does not argue whether it is fit to act in the best interest of children by providing them with a good future education and the facilities they need. Under guardianship laws, custody of minors remains with the mother until the age of five. However, in this case, both minor children are over 5 years of her age. Their son Arsalan is 11 years old and their daughter Akira is 8 years old. Therefore, with their best interests in mind, they must be provided with a good education, safety, and other conveniences. On the other hand, the applicant’s husband discovered that he was not at home due to his work and his wife. Therefore, she is promoted to a higher level, giving her time to grow and care for her children. However, feeding a minor child is not only about giving the child time to grow, but other aspects such as financial support, a good atmosphere, and safety are also important. 

2. As a result, the appeal is upheld, and the contested order from the learned District Judge-1, Omerga, District Osmanabad in Civil Miscellaneous Application No. 45/2020 is revoked and reversed. There is no expense order.

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