Jeanne Pinto vs Deputy Conservator of Forests and another. Regular First Appeal 988/2013 decided on 6 January 2021.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/358139/1/RFA988-13-06-01-2021.pdf

Relevant paragraphs: 30. The provisions of Section 33(2)(iii-a) of the Karnataka Forest Act, 1963, prohibits unauthorized occupation of land for any purpose. Admittedly, the present plaintiff who is a trespasser and encroacher, filed suit claiming forest land by way of adverse possession is not maintainable and admittedly, eviction orders already being passed by the concerned forest authorities have reached finality.

31. It is impossible for the State and its instrumentalities including local authorities to keep everyday vigilance/ watch over vast tracts of open land owned by them or of which they are public trustees. No amount of vigil can stop encroachments and unauthorized occupation of public land by unscrupulous elements, who act like vultures to grab such land, raise illegal constructions and, at times, succeed in manipulating the State apparatus for getting their occupation/possession and construction regularized. Where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, the Court is duty bound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/title of the State of immovable property and give an upper hand to encroachers, unauthorised occupants or land grabbers.

32. The plaintiff is claiming that she is in continuous possession of the lands for more than 100 years. But no documents have been produced to prove her possession and admittedly, the plaintiff is an encroacher of forest lands and already eviction orders have been passed by the authorities under the Karnataka Forest Act, 1963, and the same has reached finality. Therefore, the plaintiff has  failed to establish that she acquired title to the suit schedule properties by way of adverse possession.

33. The dictum of the Hon’ble Supreme Court in the case of T.Anjanappa and others vs. Somalingappa  and  another reported in (2006)7 SCC 570, wherein, at paragraph-20, it is held as under: “20. It is well recognized proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner’s title must be peaceful, open and continuous. The  possession must  be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former’s hostile action.”

34. Though the plaintiff claimed that she is in continuous possession for 40 years, the fact remains that she is an encroacher of forest land, as admitted by P.W.1 in the cross-examination, as stated supra. A person who is a trespasser cannot claim adverse possession against the government land, that too a reserve forest land, in view of the provisions of Section 2 of the Karnataka Forest (Conservation) Act, 1980, and in view of the dictum of the Hon’ble Supreme Court in the case of T.N.Godavarman, supra.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Dipika Jagatram Sahani vs. Union of India and Others. Writ Petition (Civil) 1039  of 2020 decided on 13 January 2021

Judgment Link:

Click to access 18627_2020_37_1501_25393_Judgement_13-Jan-2021.pdf

Relevant paragraphs: 1. This writ petition has been filed as a Public Interest Litigation under Article 32 of the Constitution of India questioning the closure of the Anganwadi Centres across the country. The petitioner states that through Anganwadi Centres supplementary nutrition to pregnant women, lactating mothers, adolescent girls and children upto the age of 6 years were being provided which fulfilled the State objective of holistic development of children under 6 years and to provide food and nutrition to the beneficiaries. In the writ petition the petitioner impleaded the Union of India, all States and Union Territories and has prayed reliefs.

4. The Act, 2013 by Section 4 creates a statutory right of every pregnant woman and lactating mother free meals during pregnancy and six months after the child birth. Section 5 provides for nutritional support to children, in the case of children in the age group of six months to six years, age appropriate meal, free of charge, through the local Anganwadi so as to meet the nutritional standards. Similarly, Section 6 provides for and management of child malnutrition.

7. After spread of pandemic Corona virus(COVID-19), Anganwadi Centres were closed throughout the country in March, 2020. The distribution of special nutrition and other benefits to be provided for beneficiaries being essential services were permitted to be conducted by Anganwadi staff by resorting to Take Home Ration.

17. We have considered submissions of the learned counsel for the parties and have perused the records. Children are the next generation and therefore unless and until the children and the women have the nutritious food, it will affect the next generation and ultimately the country as a whole. No one can doubt that children are the future of our country and if there is some stinginess in providing them with adequate nutrition, the country as a whole is deprived in future of taking the benefit of their potential.

18. As observed above, it is now statutory obligation of the Centre and the States to provide for nutritional support to the pregnant women and lactating mothers, nutritional support to children and to take steps to identify and provide meals for children who suffer from malnutrition. Government has a constitutional obligation to preserve human life. Good health of its citizens is its primary duty. International covenants also aim at highest attainable standards of physical and mental health. This is in interest of social justice. Inadequate supply of nutritious food to the citizens, more particularly to the children and the women shall affect their health. Therefore, the same shall be in violation of their fundamental right to health/right to live with dignity guaranteed under Article 21 of the Constitution of India.

33. It is the obligation of the State to ensure that pregnant women, lactating mothers and children in the age of 3 to 6 years and children who suffer from malnutrition are provided their dues. The State has to provide an appropriate mechanism for supervision and check, child development officers and other district level officers who are entrusted to monitor the functioning of Anganwadi Centres have to be extra vigilant and take steps so that no beneficiary is denied its dues. All States/Union Territories should evolve an appropriate mechanism for supervision so that dues are received by beneficiaries for whom schemes are in place. It is for the State to secure health to its citizens as its primary duty. No doubt, the Government is rendering this obligation through various schemes, such as, opening of Aanganwadis, providing nutritious food through Aanganwadis, Mid-day Meal Scheme, etc., but in order to make it meaningful, it has to be within the reach of its people, as far as possible, and the Government must supply the nutritious food in the real sense bearing in mind the provisions of National Food Security Act.

35. In view of the above discussions, we allow this writ petition with following directions: –

I) As per guidance note dated 11.11.2020 issued by Government of India, Ministry of Women and Child Development, all States/Union Territories who have not yet opened Anganwadi Centres shall take a decision to open Anganwadi Centres on or before 31.01.2021 situated outside the containment zone.

(II) The decision for not opening Anganwadi Centres in any State/Union Territories or any part of State/Union Territory shall be taken only after the State Disaster Management Authority of the State direct for not opening of Anganwadi Centres in State/particular area of the State situated outside containment zone.

(III) Anganwadi Centres situated in the containment zone shall not be opened till the containment continues.

(IV) All States/Union Territories shall ensure that nutritional standards as provided in Schedule II of National Food Security Act, 2013, reproduced herein above in para 13 is fulfilled by providing nutritional support to pregnant women, lactating mothers, nutritional support to children who suffer from malnutrition.

(V) All the States/Union Territories shall issue necessary orders regarding monitoring and supervision of Anganwadi Centres to ensure that the benefit reaches to the beneficiaries and a Complaint Redressal Mechanism be put in place in each district.

Compiled by Sumana Chamarty, Advocate, Daksha Legal.

Kumar and others vs State of Karnataka and others. Writ Petition 21977/2013 and connected matters decided on 21 December 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/357735/1/WP21977-13-21-12-2020.pdf

Relevant paragraphs: 24. Judgment in THE TIBETIAN CHILDREN’S VILLAGE Vs. DEPUTY COMMISSIONER AND OTHERS in W.P.No.15802/2007 dated 07.04.2019 referred to as follows:

“5. It is essential for us to travel a little further arid determine the matters arising out of violation of Section 4 of the PTCL Act,, wherein, the original grantee repeatedly sells the grant land, and then seeks annulment of the sale. These are cases where the vendor successfully reaps the benefit of his own wrong. This case, like others dealt with by us, reveals the misuse of a legislative enactment for personal gains. We are satisfied, that repeated sales at the hands of the original grantee constitutes the offence of cheating under the Section 420 of the Indian Penal Code 1860. A person who cheats, is definitely not entitled to seek restoration of the grant land and retain the consideration received by him by sale thereof.

29. If the facts obtaining in the judgment of the learned Division Bench are juxtaposed to the facts obtaining in the case at hand. It would become unmistakably clear that repeated sale by the original grantee or his legal heirs amounts to cheating.

Compiled by S. Basavaraj, Advocate, Daksha Legal

Kumar and others vs State of Karnataka and others. Writ Petition 21977/2013 and connected matters decided on 21 December 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/357735/1/WP21977-13-21-12-2020.pdf

Relevant paragraphs: 17 & 18. Immediately, after the condition of the non-alienation was over, the original grantee applies for conversion of the land from agricultural to non- agricultural purposes in the year 1994. The competent authority granted conversion of the land by his order dated 27.05.1994, thus, from 27.05.1994, character of the land being agriculture was changed to being non-agriculture and this act of getting the land converted is by the original grantee himself. The original grantee then sold the land to respondent No.10 – T. Suresh Gowda on 07.04.2004 to respondent No.10.

24. Judgment in THE TIBETIAN CHILDREN’S VILLAGE Vs. DEPUTY COMMISSIONER AND OTHERS in W.P.No.15802/2007 dated 07.04.2019 referred to as follows:

“3. Since the competent authorities under the Act have taken a divergent view of the matter, this Court will have to take note of both the orders and arrive at a conclusion as to the consideration as made therein. Insofar as the fact that the property in question was granted through Darkhast order dated 17.02.1978 is the undisputed position. The Saguvali Chit was issued on 31.05.1978 with a condition that the property shall not be alienated for a period of 15 years. The grantee himself after the non-alienation period of 15 years had filed an application seeking conversion of the land for residential purpose and the same was approved by the order dated 27.05.1994. It is subsequent thereto the sale has been made in favour of the vendor of the petitioner on 04.06.1994 and the petitioner has thereafter purchased on 25.06.1994. In the present circumstance what is necessary to be noticed is that the grant as made initially was for the agricultural purpose and at the point when the violation of the provisions of the Act would be alleged, the power provided under the Act is also to set aside such transaction, forfeit the land and restore it to the grantee. The object being that the purpose of the grant should be achieved inasmuch as the persons belonging to the lower strata of society who are granted such land to carry out the avocation, the protection should also be available so that the transactions which are made contrary to the provisions of the Act is to be set aside so that the purpose of the grant would be achieved in such manner.

4. If that aspect of the matter is kept in view and the instant facts are perused, the grantee himself had given up the use of land for agricultural purpose and had applied for grant of conversion of the land after the embargo on alienation for 15 years had lapsed. In the process of granting the conversion order, the competent authorities were required to take note of these aspects of the matter and in that light when the conversion of the land is granted, the permission of alienating the property is deemed to have been granted. In such circumstances, whereupon the converted land is alienated violation of the provision of the Act would not arise. Therefore the consideration as made by the Assistant Commissioner in the present facts and circumstance relating to the conversion order being granted on 27.05.1994 and the sale having taken place subsequent thereto on 04.06.1994 would indicate that the sale was after such period and the violation as contemplated under the Act had not occurred.

5. If the consideration as made by the Assistant Commissioner is kept in view and the reason assigned by the Deputy Commissioner is taken into consideration, the reason would not justify the action inasmuch as the land had been converted. Even though as observed by the Deputy Commissioner the provision contained in Sections 4 and 5 of the Act do not refer to these aspects of the matter, as already noticed the conversion was made after the embargo on alienation had ceased and thereafter the property had been sold and as such the fact situation is not the normal circumstance.

25. This order of the Co-ordinate Bench is approved by the Division Bench. Therefore, in the light of the finding of this Court that once the land was converted by an act of the original grantee himself, it was not open to the Deputy Commissioner to resume the land in favour of the original grantee.

Compiled by S. Basavaraj, Advocate, Daksha Legal

The Mavilayi Service Cooperative Bank Ltd. & Ors vs. Commissioner Of Income Tax, CIVIL APPEAL NOS. 7343-7350 OF 2019 decided on 12/01/2021

Judgment Link: https://main.sci.gov.in/supremecourt/2019/27628/27628_2019_33_1501_25374_Judgement_12-Jan-2021.pdf

Relevant paragraphs: 2. These appeals have been filed by co-operative societies who have been registered as ‘primary agricultural credit societies’, together with one ‘multi-State co-operative society’, and raise important questions as to deductions that can be claimed under section 80P(2)(a) (i) of the Income-Tax Act, 1961 (“IT Act”); and in particular, whether these assessees are entitled to such deductions after the introduction of section 80P(4) of the IT Act by section 19 of the Finance Act, 2006 (21 of 2006) with effect from 01.04.2007.

20. We now come to the judgment of this Court in Citizen Cooperative Society Ltd. (supra). This judgment was concerned with an assessee who was established initially as a mutually aided cooperative credit society, having been registered under section 5 of the Andhra Pradesh Mutually Aided Cooperative Societies Act, 1995. As operations of the assesseebegan to spread over States outside the State of Andhra Pradesh, the assessee got registered under the Multi38State Cooperative Societies Act, 2002 as well. The question that the Court posed to itself was as to whether the appellant was barred from claiming deduction in view of Section 80P(4) of the IT Act.

21. An analysis of this judgment would show that the question of law that was reflected in paragraph 5 of the judgment was answered in favour of the assessee. The following propositions may be culled out from the judgment: (I) That section 80P of the IT Act is a benevolent provision, which was enacted by Parliament in order to encourage and promote the growth of the co-operative sector generally in the economic life of the country and must, therefore, be read liberally and in favour of the assessee; (II) That once the assessee is entitled to avail of deduction, theentire amount of profits and gains of business that areattributable to any one or more activities mentioned in subsection (2) of section 80P must be given by way of deduction; (III) That this Court in Kerala State Cooperative Marketing Federation Ltd. and Ors. has construed section 80P widely and liberally, holding that if a society were to avail of several heads of deduction, and if it fell within any one head of deduction, it would be free from tax notwithstanding that the conditions of another head of deduction are not satisfied;

45. To sum up, therefore, the ratio decidendi of Citizen Cooperative Society Ltd. (supra), must be given effect to. Section 80P of the IT Act, being a benevolent provision enacted by Parliament to encourage and promote the credit of the co-operative sector in general must be read liberally and reasonably, and if there is ambiguity, in favour of the assessee. A deduction that is given without any reference to any restriction or limitation cannot be restricted or limited by implication, as is sought to be done by the Revenue in the present case by adding the word “agriculture” into Section 80P(2)(a)(i) when it is not there. Further, section 80P(4) is to be read as a proviso, which proviso now specifically excludes co-operative banks which are cooperative societies engaged in banking business i.e. engaged in lending money to members of the public, which have a licence in this behalf from the RBI. Judged by this touchstone, it is clear that the impugned Full Bench judgment is wholly incorrect in its reading of Citizen Cooperative Society Ltd. (supra). Clearly, therefore, once section 80P(4) is out of harm’s way, all the assessees in the present case are entitled to the benefit of the deduction contained in section 80P(2)(a)(i), notwithstanding that they may also be giving loans to their members which are not related to agriculture. Also, in case it is found that there are instances of loans being given to non-members, profits attributable to such loans obviously cannot be deducted.

Compiled by Sumana Chamarty, Advocate, Daksha Legal

M/s. Serve and Volley Outdoor Advertising Pvt Ltd. vs Bruhat Bengaluru Mahanagara Palike and another. Miscellaneous First Appeal 4502/2020 (AA) decided on 8 January 2021.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/357722/1/MFA4502-20-08-01-2021.pdf

Relevant Paragraphs: 15….Hence, the question in the instant case is, whether Section 474 of the KMC Act, which is a special law prescribes a different period of limitation than as prescribed under the schedule to the Limitation Act, in terms of Section 3 of the Limitation Act?

Karnataka Municipal Corporations. Act. 474. Limitation for recovery of dues. – No distraint shall be made, no suit shall be instituted and no prosecution shall be commenced in respect of any sum due to the corporation under this Act after the expiration of a period of six years from  the date on which distraint might first have been made, a suit might first have been instituted or prosecution might first have been commenced, as the case may be, in respect of such sum.”

Thus, the limitation period for filing a suit to recover dues to the corporation (BBMP) is six years from when a suit might first have been instituted. The expression used in Section 474 of KMC Act is “suit”. Learned senior counsel for the appellant submitted that the said Section would not apply to an arbitration proceeding. However, we do not think, the said submission is right inasmuch as the Hon’ble Supreme Court in the case of Geo Miller & Co. Pvt. Ltd. (supra) has referred to Panchu Gopal Bose vs. Board of Trustees for Port of Calcutta [(1993) 4 SCC 338] (Panchu Gopal Bose) and extracted paragraph No.11 in the latter case as under: “11. Therefore, the period of limitation for the commencement of arbitration runs from the date on which, had there been no arbitration clause, the cause of action would have accrued. Just as in the case of civil actions the claim is not  to be brought after the expiration of a specified number of years from the date on which the cause of action accrued, so in the case of arbitrations, the claim is not to be put forward after the expiration of the specified number of years from the date when the claim accrued.”

On a reading of the same, it is clear that the period of limitation, whether for a suit or an arbitration is the same under Section 474 of the KMC Act even though the word “arbitration” is not found in the said provision. The reason being, the judgment in Panchu Gopal Bose clearly states that the period of limitation for the commencement of arbitration runs from the date on which, had there been no arbitration clause, the cause of action would have accrued. Therefore, the period of limitation as prescribed for a suit in Section 474 of the KMC Act, i.e., to commence a civil action, would also be the same for commencement of an arbitration. Hence, the expression “suit” in Section 474 of the KMC Act would take within its scope and ambit the expression “arbitration” also. This is because arbitration is an alternative dispute resolution mechanism to a suit. In the circumstances, the period of limitation for making claims by respondent No.1/BBMP by way of a suit or arbitration is six years from the date when the cause of action arose.

Case laws in N.Balakrishnan v. M. Krishnamurthy, [(1998) 7 SCC 123], State of Orissa vs. Mamata Mohanti, [(2011) 3 SCC 436], Hukumdev Narain Yadav vs. Lalit Narian Mishra, [(1974) 2 SCC 133], Consolidated Engineering Enterprises vs. Prl. Secretary, Irrigation Department, [(2008) 7 SCC 169], State of Goa vs. Western Builders [(2006) 6 SCC 239]

Compiled by S. Basavaraj, Advocate, Daksha Legal.

M/s. N.N. Global Mercantile Pvt Ltd vs M/s. Indo Unique Flame Lted & others. Civil Appeal 3802 – 3803 /2020. Decided on 11 January 2021.

Judgment Link: https://main.sci.gov.in/supremecourt/2020/23926/23926_2020_38_1502_25365_Judgement_11-Jan-2021.pdf

8 Whether the fraudulent invocation of the Bank Guarantee is arbitrable?
8.11 Traditionally, disputes relating to rights in rem are required to be
adjudicated by courts and / or statutory tribunals. A right in rem is a right exercisable against the world at large. Actions in rem refer to actions which create a legal status such as citizenship, divorce, testamentary and probate issues, etc. A lis in rem is not arbitrable by a private tribunal constituted by the consent of parties. Actions in personam determine the rights and interests of parties to the subject matter of the dispute, which are arbitrable.

The broad categories of disputes which are considered to be non
arbitrable are penal offences which are visited with criminal sanction;
offences pertaining to bribery / corruption; matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody and guardianship matters, which pertain to the status of a person; testamentary matters which pertain to disputes relating to the validity of a Will, grant of probate, letters of administration, succession, which pertain to the status of a person, and are adjudicated by civil courts. Certain categories of disputes such as consumer disputes; insolvency and bankruptcy proceedings; oppression and mismanagement, or winding up of a company; disputes relating to trusts, trustees and beneficiaries of a trust are governed by special enactments.

This Court in Booz Allen & Hamilton Inc. v. SBI Home Finance
Ltd.43 has recognized some examples of disputes which are not arbitrable, and held that :
“36. The well recognized examples of non-arbitrable disputes are : (i)
disputes relating to rights and liabilities which give rise to or arise out of criminal offences; (ii) matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody; (iii) guardianship matters; (iv) insolvency and winding up matters; (v) testamentary matters (grant of probate, letters of administration and succession certificate); and (vi) eviction or tenancy matters governed by special statutes where the tenant enjoys statutory protection against eviction and only the specified courts are conferred jurisdiction to grant eviction or decide the disputes.”

8.12 The civil aspect of fraud is considered to be arbitrable in contemporary arbitration jurisprudence, with the only exception being where the allegation is that the arbitration agreement itself is vitiated by fraud or fraudulent inducement, or the fraud goes to the validity of the underlying contract, and impeaches the arbitration clause itself. Another category of cases is where the substantive contract is “expressly declared to be void” under Section 1044 of the Indian Contract Act, 1872 where the agreement is entered into by a minor (without following the procedure prescribed under the
Guardian and Wards Act, 1890) or a lunatic, which would be with a party incompetent to enter into a contract.

In the case of voidable agreements, such disputes would be
arbitrable, since the issue whether the consent was procured by coercion, fraud, or misrepresentation requires to be adjudicated upon by leading cogent evidence, which can very well be decided through arbitration. Until it so proved and upheld as per Sections 2(i) and (j) of the Indian Contract Act, 1872 such an agreement would remain enforceable, and is not void.

8.16 The ground on which fraud was held to be non arbitrable earlier was that it would entail voluminous and extensive evidence, and would be too complicated to be decided in arbitration. In contemporary arbitration practice, arbitral tribunals are required to traverse through volumes of material in various kinds of disputes such as oil, natural gas, construction industry, etc.

The ground that allegations of fraud are not arbitrable is a wholly archaic view, which has become obsolete, and deserves to be discarded. However, the criminal aspect of fraud, forgery, or fabrication, which would be visited with penal consequences and criminal sanctions can be adjudicated only by a court of law, since it may result in a conviction, which is in the realm of public law.

8.17 In the present case, the allegations of fraud with respect to the
invocation of the Bank Guarantee are arbitrable, since it arises out of
disputes between parties inter se, and is not in the realm of public law.

Compiled by S. Basavaraj, Advocate, Daksha Legal

M/s. N.N. Global Mercantile Pvt Ltd. vs M/s. Indo Unique Flame Ltd. & Others. Civil Appeal 3802 – 3803 / 2020 decided on 11 January 2021. Justice Dr Dhananjaya Y Chandrachud, Justice Indu Malhotra and Justice Indira Banerjee

Judgment Link: https://main.sci.gov.in/supremecourt/2020/23926/23926_2020_38_1502_25365_Judgement_11-Jan-2021.pdf

12. We are of the considered view that the finding in SMS Tea Estates and Garware that the non-payment of stamp duty on the commercial contract would invalidate even the arbitration agreement, and render it non-existent in law, and un-enforceable, is not the correct position in law. In view of the finding in paragraph 92 of the judgment in Vidya Drolia by a co-ordinate bench, which has affirmed the judgment in Garware, the aforesaid issue is required to be authoritatively settled by a Constitution bench of this Court.

We consider it appropriate to refer the following issue, to be
authoritatively settled by a Constitution bench of five judges of this Court : “ Whether the statutory bar contained in Section 35 of the Indian Stamp Act, 1899 applicable to instruments chargeable to Stamp Duty under Section 3 read with the Schedule to the Act, would also render the arbitration agreement contained in such an instrument, which is not chargeable to payment of stamp duty, as being non-existent, unenforceable, or invalid, pending payment of stamp duty on the substantive contract / instrument ? ”

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Ireo Grace Realtech Pvt Ltd vs Abhishek Khanna & others. Civil Appeal 5785 of 2019 decided on 11 January 2021.

Judgment Link: https://main.sci.gov.in/supremecourt/2019/23235/23235_2019_38_1501_25365_Judgement_11-Jan-2021.pdf

Held: 19.2 The aforesaid clauses reflect the wholly one-sided terms of the Apartment Buyer‘s Agreement, which are entirely loaded in favour of the Developer, and against the allottee at every step. The terms of the Apartment Buyer‘s Agreement are oppressive and
wholly one-sided, and would constitute an unfair trade practice under the Consumer Protection Act, 1986.

19.7 We are of the view that the incorporation of such one-sided and unreasonable clauses in the Apartment Buyer‘s Agreement constitutes an unfair trade practice under Section 2(1)(r) of the Consumer Protection Act. Even under the 1986 Act, the powers of the consumer fora were in no manner constrained to declare a contractual term as unfair or one-sided as an incident of the power to discontinue unfair or restrictive trade practices. An ―unfair contract‖ has been defined under the 2019 Act, and powers have been conferred on the State Consumer Fora and the National Commission to declare contractual terms which are unfair, as null and void. This is a statutory recognition of a power which was implicit under the 1986 Act. In view of the above, we hold that the Developer cannot compel the apartment buyers to be bound by the one-sided contractual terms contained in the Apartment Buyer‘s Agreement.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

A. Ananda vs A Krishna Reddy and others. Writ Petition 13456/2020 decided on 7 January 2021.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/357576/1/WP13456-20-07-01-2021.pdf

Relevant paragraphs: 4-F. The unconscionable stand of the JDrs needs to  be mentioned here; when there was no dispute as to the identity of the property either in the suit or in the RFA, the JDrs by their wily tactics are trying to generate one in the execution proceedings; in fact, their application filed under Order XLI Rule 27 seeking leave to produce additional documents in the RFA has been rejected by the Division Bench disbelieving  the  unregistered  Settlement  Deed dated 10.09.1968; the DB did not believe the version of the JDrs that they were in the possession of the suit property and not the DHr; strangely and unconscionably  the  JDrs are unjustibiably re-agitating the same issue before the Executing Court and before this Court  as  well;  this  virtually amounts to  abuse of process of the court; this  is  yet another ground for the writ court to deny relief to the petitioner.

4-H Further added to the above, Sec.6 of the 1963 Act employs the expression ‘recover possession’; the so called possession of the JDrs cannot be termed to be possession in law which is a sine qua non for invoking this provision because: (i) Possession consists of two ingredients which Salmond on jurisprudence (7th ed.) page 297-308  mentions  viz.,   (i)  corpus   possessionis and (ii) animus possidendi; the former, he says, comprises of both the power to use the thing possessed and the existence of grounds for the expectation that the possessor’s use will not be interfered with by others; the later consists of an intent   to   appropriate   to   oneself   the   exclusive use of the thing possessed; learned author P.J.Fitzgerald who edited ‘Salmond  on Jurisprudence’  (12th  edition)  at   page   272  adds: “(i) The distinction between animus and corpus was made in Roman law: Dig.41.2.3.1., and has been accepted by such  jurists  as  Savigny,  Thering, Pollock, Salmond and Holmes”. Apex Court too  in  the case of Poonaram Vs.  Motiram  AIR  2019 SC 813 at paragraph  9  has  considered  and approved this view; (ii) The great Lexicographer Mr.Ramnath Iyer in his magnum opus ‘The Law Lexicon’  3rd  Edn.-  2012 writes: “Possession  and   occupation:   Bare occupation and possession are two different things. The concept  of possession,  at  any  rate as it is understood in legal terminology, is a complex one which need not include actual occupation. It comprises rather the right to possess, and the right and ability to exclude others from possession and control coupled  with a mental element namely, the  animus possidendi, that is to say, knowledge of these rights and the desire and intention of exercising them if need be. The  adverse  possession  of which the law speaks does not  necessarily  denote actual physical ouster from occupation but an ouster from all those rights which constitute possession in law. It is true that physical occupation is ordinarily the best  and  the most conclusive proof of possession in this sense but the two are not the  same.  It  is  also true that there must always be physical ouster from these rights but that does not necessarily import physical ouster from occupation especially when this is of just a small room or two in a house and when this occupation is shared with others”

4-I Lastly, the JDrs resistance  to the  execution  of  the decree, that is structured on  the  provisions  of  Sec.6  of  the 1963 Act, cannot be agreed to; a Division Bench of the Bombay High Court in AMIRUDDIN vs. MOHAMED JAMAL, ILR 15 BOM 685 decided way back in the  year 1891, has held that Sec.9 of the old Act which was in pari material with Sec.6 of the new Act is not invocable  by  a person who has no juridical possession; the same view  is  taken by several other High Courts in the country viz., NEYVELI LIGNITE CORPORATION vs. K.S.NARAYANA IYER, AIR 1965 MADRAS 122; EMPEROR vs. BANDHU SINGH, AIR 1928 PATNA 124, NRITTO LALL MITTER vs. RAJENDRO NARAIN DEB, (1895) ILR 22 CALCUTTA 562 SOBHA vs. RAM PHAL, AIR 1957 ALLAHABAD 394; if the petitioner arguably has put up the structure in the suit property, it is only by high handedness and in gross disobedience of the injunctive decree granted by the  trial  Court and affirmed by the Division Bench of this Court; his usurpation of the suit  property  therefore  cannot  be  termed  as juridical possession; such a stand apart from being an after- thought is an affront to the judicial  process,  to say  the least; such unscrupulous  litigants  who  spoil  the  stream of justice do not deserve a discretionary remedy at the hands of the writ court,  exercising  a  limited  jurisdiction constitutionally vested in it.

In the above circumstances, this writ petition being thoroughly devoid of merits is liable to be rejected and accordingly it is, costs having been made easy.

Compiled by S. Basavaraj, Advocate, Daksha Legal.