1. In the case of Bombay Hawkers' Union v. Bombay Municipal Corporation. AIR 1985 SC 1206. the Supreme Court held that "No one has any right to do his or her trade or business so as to cause nuisance, annoyance or inconvenience to the other members of the public. Public Streets, by their very nomenclature and definition, are meant for the use of the general public. They are not laid to facilitate the carrying on of private trade or business. If hawkers were to be conceded the right claimed by them, they could hold the society to ransom by squatting on the centre of busy thoroughfares, thereby paralysing all civic life. Indeed, that is what some of them have done in some parts of the city. They have made it impossible for the pedestrians to walk on footpaths or even on the streets properly so-called".
2. In the case of Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180, the Supreme Court held that a municipality is empowered to cause to be removed encroachments on footpaths or pavements over which the public have a right of passage or access. In this case the Supreme Court also observed that "...............In the first place, footpaths or pavements are public properties which are intended to serve the convenience of the general public. They are not laid for private use and indeed, their use for a private purpose frustrates the very object for which they are carved out from portions of public streets". The Supreme Court was also dismissing misplaced arguments resting on life and liberty by those who were claiming occupation of public streets. In this regard, the Supreme Court observed that ".....There is no substance in the argument advanced on behalf of the petitioners that the claim of the pavement dwellers to put up constructions on pavements and that of the pedestrians to make use of the pavements for passing and repassing, are competing claims and that, the former should be preferred to the latter".
3. Constitutional Bench judgment Sodhan Singh v. New Delhi Municipal Committee (AIR 1989 SC 1988) has laid down that “poverty cannot be the reason to permit encroachments on public lands/roads”. “Street trading-An age old vocation adopted by human beings to earn living--No justification to deny citizens right to earn livelihood using public streets for trade or business--Regulatory measures and reasonable restrictions can be imposed”. “A member of the public is entitled to legitimate user of the road other than actually passing or re-passing through it, provided that he does not create an unreasonable obstruction which may inconvenience other persons having similar right to pass and does not make excessive use of the road to the prejudice of the others. Liberty of an individual comes to an end where the liberty of another commences”. “ What will constitute public nuisance and what can be included in the legitimate user can be ascertained only by taking into account all the relevant circumstances including the size of the road, the amount of traffic and the nature of the additional use one wants to make of the public streets. This has to be judged objectively and here comes the role of public authorities”. “The right to carry on trade or business mentioned in Article 19(1)(g) of the Constitution, on street pavements, if properly regulated, cannot be denied on the ground that the streets are meant exclusively for passing or re-passing and for no other use. Proper regulation is, however, a necessary condition as otherwise the very object of laying out roads--to facilitate traffic--may be defeated. Allowing the right to trade without appropriate control is likely to lead to unhealthy competition and quarrel between traders and travelling public and sometimes amongst the traders themselves resulting in chaos. The right is subject to reasonable restrictions under clause (6) of Article 19”. “The proposition that all public streets and roads in India vest in the State but that the State holds them as trustee on behalf of the public and the members of the public are entitled as beneficiaries to use them as a matter of right, and that this right is limited only by the similar rights possessed by every other citizens to use the pathways and further that the State as trustee is entitled to impose all necessary limitations on the character and extent of the user, should be treated as of universal application. The provisions of the Municipal Acts should be construed in the light of the above proposition and they should receive a beneficent interpretation”. “The petitioners do have the fundamental right to carry on a trade or business of their choice, but not to do so on a particular place, as circumstances are likely to change from time to time. But that does not mean that the licence has to be granted on a daily basis; that arrangement cannot be convenient to anybody, except in special circumstances”. “Some of the hawkers in big cities are selling very costly luxury articles including sophisticated electronic goods, sometimes imported or smuggled. The authorities will be fully justified to deny to such hawkers any facility. They may frame rules in such manner that it may benefit only the poor hawkers incapable of investing a substantial amount for starting the business. Attempt should be made to make the scheme comprehensive, dealing with every relevant aspect, for example, the charges to be levied, the procedure for grant and revocation of the licences, etc”. “Street trading is an age-old vocation adopted by human beings to earn living. It is one of the traditionally recognised business or trade in England. This is so in spite of the fact that there is a complete social security in that country and as such no compulsion on the citizens to be driven to street trading out of poverty or unemployment. On the other hand, abysmal poverty in India warrants outright rejection of the argument that nobody has a right to engage himself in 'street trading”.
4. Those observations of Hon'ble Apex Court in Maharashtra Ekta Hawkers Union v. Municipal Corporation Greater Bombay (Judgement dated 12-02-2007) The restrictions/conditions on which the hawkers shall do the business are :
(1) an area of 1 mtr x 1 mtr on one side of the footpath wherever they exist or on an extreme side of the carriage way, in such a manner that the vehicular and pedestrian traffic is not obstructed and access to shops and residences is not blocked. We further clarify that even where hawking is permitted, it can only be on one side of the footpath or road and under no circumstances on both sides of the footpaths or roads. We however clarify that Aarey/Sarita stalls and sugar cane vendors would require and may be permitted an area of more than 1 Mt. by 1 Mt. but not more than 2 Mt. by 1 Mt;
(2) Hawkers must not put up stalls or place any tables, stand or such other thing or erect any type of structure. They should also not use handcarts. However they may protect their goods from the sun, rain or wind. Obviously this condition would not apply to Aarey/sarita stalls;
(3) There should be no hawking within 100 meters from any place of worship, holy shrine, educational institutions and hospitals or within 150 meters from any municipal or other markets or from any railway station. There should be no hawking on foot-bridges and over-bridges. Further certain areas may be required to be kept free of hawkers for security reasons. However outside places of worship hawkers can be permitted to sell items required by the devotees for offering to the deity or for placing in the place of worship e.g. flowers, sandalwood, candles, agarbattis, coconuts etc.;
(4) The hawkers must not create any noise or play any instrument or music for attracting the public or the customers;
(5) They can only sell cooked foods, cut fruits juices and the like. We are unable to accept submission that cooking should be permitted. We direct that no cooking of any nature whatsoever shall be permitted. Even where cooked food or cut fruits or the like are sold, the food must not be adulterated or unhygienic. All municipal licensing regulations and the provisions of the Prevention of Food Adulteration Act must be complied with;
(6) Hawking must be only between 7.00 am and 10.00 pm;
(7) Hawking will be on the basis of payment of a prescribed fee to be fixed by BMC. However the payment of prescribed fee shall not be deemed to authorize the hawker to do his business beyond prescribed hours and would not confer on the hawker the right to do business at any particular place;
(8) The hawkers must extend full co-operation to the municipal conservancy staff for cleaning the streets and footpaths and also to the other municipal staff for carrying on any municipal work. They must also co-operate with the other Government and public agencies such as Best undertaking, Bombay Telephones, BSES Ltd. etc. if they require to lay any cable or any development work;
(9) No hawking would be permitted on any street which is less than 8 meters in width. Further the hawkers also have to comply with Development Control Rules thus there can be no hawking in a areas which are exclusively residential and where trading and commercial activity is prohibited. Thus hawking cannot be permitted on roads and pavements which do not have a shopping line;
(10) BMC shall grant licences which will have photos of the hawkers on them. The licence must be displayed, at all times, by the hawkers on their person by clipping it on to their shirt or coat;
(11) Not more than one member of a family must be given a licence to hawk. For this purpose BMC will have to computerize its records;
(12) Vending of costly items e.g. electrical appliances, video and audio tapes and cassettes, cameras, phones etc. are to be prohibited. In the event of any hawker found to be selling such items his licence must be cancelled forthwith.
(13) In areas other than the Non-Hawking Zones, licences must be granted to the hawkers to do their business on payment of the prescribed fee. The licences must be for a period of 1 year. That will be without prejudice to the right of the Committee to extend the limits of the Non-Hawking Zones in the interests of public health, sanitation, safety, public convenience and the like. Hawking licences should not be refused in the Hawking Zones except for good reasons. The discretion not to grant a hawking licence in the Hawking Zone should be exercised reasonably and in public interest.
(14) In future, before making any alteration in the scheme, the Commissioner should place the matter before the Committee who shall take a decision after considering views of all concerned including the hawkers, the Commissioner of Police and members of the public or an association representing the public.
(15) It is expected that citizens and shopkeepers shall participate in keeping non-hawking zones/areas free from hawkers. They shall do so by bringing to the notice of the concerned ward officer the presence of a hawker in a non hawking zone/area. The concerned ward officer shall take immediate steps to remove such a hawker. In case the ward officer takes no action a written complaint may be filed by the citizen/shopkeeper to the Committee. The Committee shall look into the complaint and if found correct the Committee will with the help of police remove the hawker. The officer in charge of the concerned police station is directed to give prompt and immediate assistance to the Committee. In the event of the Committee finding the complaint to be correct it shall so record. On the Committee so recording an adverse remark re failure to perform his duty will be entered in the confidential record of the concerned ward officer. If more than three such entries are found in the record of an officer it would be a ground for withholding promotion. If more than 6 such entries are found in the records of an officer it shall be a ground for termination of service. For the work of attending to such complaints BMC shall pay to the Chairman a fixed honorarium of Rupees 10,000/- p.m.
(16) The scheme framed by us will have a binding effect on all concerned. Thus apart from those to whom licenses will now be issued, no other person/body will have any right to squat or carry on any hawking or other business on the roads/streets. We direct the BMC shall bring this judgment to the notice of all Courts in which matters are now pending. We are quite sure that the concerned Court/s shall then suitably vacate/modify its injunction/stay order."
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1. More than a century ago in Attorney General v. Corporation of Sunder Land, 1875-76(2) Ch.D 634, the position of the municipal authorities with regard to public parks, gardens, squares and streets was put at par with a trustee, and it was held that the municipal authorities would be guilty of breach of trust in employing any part thereof for purposes other than those contemplated by the relevant statute
2. Supreme Court of India in K.R. Shenoy v Udipi Municipality, AIR 1974 SC 2177. In the above case, the Municipality of Udipi had granted permission for construction of Cinema Hall in a place which was reserved for residential purposes. This action of the Municipality was struck down by observing that the Municipal authorities are supposed to enforce a scheme and not to act in breach thereof. It would be apt to quote what was said by the Supreme Court :- "Where the Municipality acts in excess of the powers conferred by the Act or abuses those powers then in those cases it is not exercising its jurisdiction irregularly or wrongly but it is usurping powers which it does not possess. The right to build on his own land is a right incidental to the ownership of that land. Within the Municipality the exercise of that right has been regulated in the interest of the community residing within its limits of the Municipal Committee. If under pretence of any authority which the law does give to the Municipality it goes beyond the like of its authority and infringes or violates the rights of others, it becomes like all other of the Courts. If sanction is given to build by contravening a bye-law the jurisdiction of the Courts will be invoked on the ground that the approval by an authority of building plans which contravene the bye-laws made by that authority is illegal and inoperative."
3. The same concern was shown by the Supreme Court of India in Bangalore Medical Trust v. B.S. Muddappa, AIR 1991 SC 1902. In this case action of the local authority which was destructive of environment was set at naught.
4. The decisions given by the Supreme Court of India be also noticed. In Municipality v. Mahadeoji, AIR 1965 SC 1147 it observed that inference of dedication of a highway to the public may be drawn from a long user of the highway by the public. It was observed : "The width of the highway so dedicated depends upon the extent of the user. The side land are ordinarily included in the road for they are necessary for the proper maintenance of the road. In the case of a pathway used for a long time by the public, its topographical and permanent landmark and the manner and mode of its maintenance usually indicate the extent of the user." In Manglore Municipality v. Mahadeoji, AIR 1965 SC 1147, it was observed that :- "Inference of dedication of a highway to the public may be drawn from a long user of the highway by the public. The width of the highway so dedicated depends upon the extent of the user. The side lands are ordinarily included in the road for they are necessary for the proper maintenance of the road. In the case of a pathway used for a long time by the public, its topographical and permanent landmark and the manner and mode of its maintenance usually indicate the extent of the user."
5. State of U. P. v. Ata Mohd., AIR 1980 SC 1785, it was held that street would vest in the Corporation only qua the street and not as absolute property. What is vested in the Municipality is not general property or a species of property known to the common law but a special property created by a statute and vested in a corporate body for public purposes. Such vesting enables the Corporation to use the Street as a street and not for any other purpose. Not only pavements but verandahs in front of the shops are part of streets and public streets. State of U. P. v. Ata Mohd.. AIR 1980 SC 1785. The Supreme Court held if the municipality put the street to any other user than that for which, it was intended, the State as its owner, was entitled to intervene and maintain an action to get any person in illegal occupation evicted.
6. Supreme Court in the case of M/s Gobind Pershad v. New Delhi Municipal Committee, AIR 1993 SC 2313. In this case verandahs in Connaught Circus in New Delhi were held to be part of public streets. In para 12 of the judgment it was observed as under : "We see no ground to differ with the concurrent findings of the Court below and hold that the appellant has dedicated the Verandah in dispute to the public-use. It is being used for passing and repassing by the public at large and as such is a "street" in terms of section 3(13)(a) of the Act. The appellant has thus surrendered his rights in the property for the benefit of the public. The user of the property is and always shall be with the public. Any space, passage, verandah, alley, road or footway dedicated to public by the owner for passing and repassing, partakes the character of a "street" and no longer remains under the control of the owner has no right at all times to prevent the public from using the same. When the owner of the . property has, by his own violation permitted his property to be converted into a "street", then he has no right to claim any compensation when the same property is made "public street" under section 17(4) of the Act. The "streets" are meant for public use. It is necessary that the "streets" which are being used by the public are frequently repaired and are also saved from public abuse. It is common knowledge that in the absence of any regulatory control the hawkers and squatters are likely to occupy the "streets" thereby creating nuisance for the public. In a situation like this it is necessary for the committee to step in and exercise its powers under section 17(4) of the Act. The Committee exercises regulatory control and is responsible for the repair and upkeep of the "public streets". The verandah in dispute is a "street". It has been declared as a "public street" for the better enjoyment of the public right in the said street. We hold that when a "street" is declared as "public street" the owner of the property comprising the said "street", has no right to claim compensation."
7. In another case, the Zoning Authority had prevented the spread of a commercial venture as a hotel in and around a lake in the State of Tamilnadu. The local administration did not permit it. The Chief Minister interfered with the local self-government in the district. The Supreme Court was not appreciative of the fact that in such matters of discipline in urban construction and environment protection instructions should be given from the top which result in for violation of planned urban habitats. Pleasant Stay Hotel v. Pilani Conservation Council. 1995 (6) SCC 127.
8. In the case of Delhi Municipal Corporation v. Gumam Kaur, AIR 1989 SC 38, the Supreme Court reiterated the law that to remove an encroachment of a public road is the obligation of a municipality and that an injunction could not be granted to suffer an encroachment of a public place like a street which is meant for the use of the pedestrians.
9. In the case of Ahmedabad Municipal Corporation v. D. Balwantsingh. JT 1992 (2) SC 363, the Supreme Court negatived the plea of an occupier of a public street when he obtained an injunction in a suit to prevent the removal of an encroachment. The Supreme Court reiterated its earlier decisions. Removal of encroachment was upheld ; so was the action of the municipal corporation to shift the hawkers to an alternate site.
10. In the case of Gobind Pershad Jagdish Pershad v. New Delhi Municipal Committee, AIR 1993 SC 2313, the Supreme, Court extended the public street into the verandhas in front of a shop which by long user had been used by the public as a passage. Thus, shopping arcades or verandhas adjoining public streets were given the declaration of a public street. Encroachment of such verandhas in front of public streets was held as illegal.
11. Case of Dr. G.N. Khajuria and Ors. Appellants v. Delhi Development Authority and Ors. AIR 1996 SC 253 In paragraph 10, Hon'ble Apex Court observes: --Before parting, we have an observation to make. The same is that a feeling is gathering ground that where unauthorised constructions are demolished on the force of the order of Courts, the illegality is not taken care of fully inasmuch as the Officers of the statutory body who had allowed the unauthorised construction to be made or make illegal allotments go scot free. This should not, however, have happened for two reasons. First, it is the illegal action/order of the Officer which lies at the root of the unlawful act of the concerned citizen, because of which the Officer is more to be blamed than the recipient of the illegal benefit. It is thus imperative, according to us, that while undoing the mischief which would require the demolition of the unauthorised construction, the delinquent Officer has also to be punished in accordance with law. This, however, seldom happens. Secondly, to take care of the injustice completely, the Officer who had misused his power has also to be properly punished. Otherwise, what happens is that the officer, who made the hay when the sun shined, retains the hay, which tempts other to do the same. This really gives fillip to the commission of tainted acts, whereas the aim should be opposite.
12. In Municipal Committee, Karnal, Appellant v. Nirmala Devi , Hon'ble Apex Court has considered encroachment on public street and has held that Municipal Committee had power to have said unauthorised encroachment and construction removed and to recover the costs thereof from such encroacher. Thereby, the Municipal Committee has necessary power to have the unauthorised construction removed and encroacher ejected. If the encroacher does not voluntarily remove the unauthorised construction, the Municipal Committee has power to have it removed by exercise of the power vested under Section 181(2) of the Act. Since the Committee has exercised the statutory power, the award of damages is clearly illegal, unwarranted and unsustainable.
13. In case of Cantorment Board, Jabalpur v. S.N. Awasthi reported at 1995 Supp (4) SCC 595, Hon'ble Apex Court has in paragraph 5 held that construction made in contravention of law cannot be a premium to extend equity so as to facilitate violation of mandatory requirements of law and High Court was not justified in extending equity on this ground.
14. In Debashis Roy v. Calcutta Municipal Corporation reported at 2005 (12) SCC 317, Hon'ble Apex Court has held that the issue about legality or otherwise of conversion of user of parking space in residential area for commercial purposes permitted by Municipal Corporation was not a dispute between private parties and essentially involved an element of public interest.
15. In M.I. Builders v. Radhey Shyam Sahu Hon'ble Apex Court 1996(6) SCC 464 has observed that any commercial activity in unauthorised constructions puts additional burden on locality and it is the primary concern of Court to eliminate the negative impact which it will have on environmental conditions in the area and the congestion that will aggravate on account of increased traffic and people visiting such complex. It is also observed that while directing demolition of unauthorised construction, the Court should also direct an inquiry as to how the unauthorised construction came about and to bring the offenders to book and it is not enough to order demolition only.
16. Observations of Hon'ble Apex Court in M.C. Mehtav. U.O.I. 2006(2) SCALE 364 Judgement dated 16-02-2006, reveal that user, commercial residential is very relevant and occupation load has large impact on various facilities including water, sanitation and drainage. Master plans are prepared to take care of future needs by experts after looking into various aspects like healthy living, environment, Lung space need, land use intensity, areas where residential houses are to be built and were commercial buildings are to be located, need of household industries etc.. Hon'ble Apex Court has also observed that though task of implementation may be difficult, the Court cannot remain the mute spectator when the violations also affect the environment and healthy living of law abiders. The enormity of the problem cannot be a deterrent factor in this respect. It is observed that various laws are enacted, master plans are prepare by expert planners, provision is made in the plans also to tackle the problem of existing unauthorised constructions and misusers and, still such illegal activities go on unabated openly under the gaze of everyone without having any respect and regard for law and other citizens. Hon'ble Court has also observed that laws are not enforced and the orders of the Court are not properly implemented resulting into total lawlessness. It has observed that therefore it is necessary to identify and take appropriate action against officers responsible for this state of affairs because such blatant misuse of properties at large-scale do not take place without connivance of concerned officers. Hon'ble Court therefore found it proper to constitute a Monitoring Committee and the issue of accountability of officers and also the exact manner of applicability of "Polluters Pay Principle" to owners and officers could be taken up after misuser is stopped at least on main roads in New Delhi. The Hon'ble Apex Court has thereafter in last paragraph issue directions about giving of individual notices for stopping of misuser, filing of affidavit to that effect by owners and sealing of premises in default.
17. Hon'ble Apex Court in case of Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan Judgement dated 11-10-1996.It is observed as follows:
“It is apparent that plaintiff or applicant who wants his encroachments on Public Road to be protected by any interim order has to satisfy the court about existence of any legal right in his favour to maintain such encroachment during pendency of suit and for that purpose, he has to point out some title in him authorising him to occupy the portion of public Road or footpath etc.. In the absence of any such legal right, the encroacher cannot be permitted to obstruct the free flow of traffic or cause inconvenience to public at large. Mere long possession or user cannot be an answer to tilt the balance in his favour when in other pan of balance, the Court has to weigh interest of public at large. Even the threat of loosing source of livelihood cannot be, by itself a circumstance in favour of such applicant. He encroached upon public road or footpath knowing fully well that nobody can clothe him with authority to occupy and use it for his private gain. He cannot feign ignorance of provisions of Law and try to raise equity in his favour. Court of Law cannot permit such wrongdoer to continue to injure public at large during pendency of suit. Hence, his plaint itself must contain sufficient material and facts to satisfy the court that the convenience & interest of public at large must suffer because of legal right in his favour, which will be a very rare case”.
”Encroachment of public property undoubtedly obstructs and upsets planned development, echology and sanitation. Public property needs to be preserved and protected. It is but the duty of the State and local bodies to ensure the same. This would answer the second question. As regards the fourth question, it is to reiterate that judicial review is the basic structure of the Constitution. Every citizen has a fundamental right to redress the perceived legal injury through judicial process. The encroachers are no exceptions to that Constitutional right to judicial redressal. The Constitutional Court, therefore, has a Constitutional duty as sentinel qui vive to enforce the right of a citizen when the he approaches the Court for perceived legal injury, provided he establishes that he has a right to remedy. When an encroacher approaches the Court, the Court is required to examine whether the encroacher had any right and to what extent he would be given protection and relief. In that behalf, it is the salutary duty of the State or the local bodies or any instrumentality to assist the Court by placing necessary factual position and legal setting for adjudication and for granting/refusing relief appropriate to the situation. Therefore, the mere fact that the encroachers have approached the Court would be no ground to dismiss their cases. The contention of the appellant-Corporation that the intervention of the Court would aid impetus to the encroachers to abuse the judicial process is untenable. As held earlier, if the appellant-Corporation or any local body or the State acts with vigilance and prevents encroachment immediately, the need to follow the procedure enshrined as a inbuilt fair procedure would be obviated. But if they allow the encroachers to remain in settled possession sufficiently for long time, which would be a fact to be established in an appropriate case, necessarily suitable procedure would be required to be adopted to meet the fact situation and that, therefore, it would be for the respondent concerned and also for the petitioner to establish the respective claims and it is for the Court to consider as to what would be the appropriate procedure required to be adopted in the given facts and circumstances”.
“It is true that in all cases it may not be necessary, as a condition for ejectment of the encroacher, that he should be provided with an alternative accommodation at the expense of the State which if given due credence, is likely to result in abuse of the judicial process. But no absolute principle of universal application would be laid in this behalf. Each case is required to be examined on the given set of facts and appropriate to the facts of the case. Normally, the Court suitable to the facts of the case. Normally, the Court may not, as a rule, directs that the encroacher should be provided with an alternative accommodation before ejectment when they encroached public properties, but, as stated earlier, each case required examination and suitable direction appropriate to the facts requires modulation”.
18. Syed Muzaffar Ali v. Municipal Corporation of Delhi reported at 1995 Supp (4) SCC 426 shows that Hon Apex Court has observed that mere departure from the authorised plan or putting up the construction without sanction does not ipso facto and without more necessarily and inevitably justify demolition of structure. Some cases may be amenable to compounding while the other cases of grave & serious breaches of licensing provisions or building regulations may warrant demolition. Therefore the burden is entirely upon plaintiff or applicant to satisfy the court with material as mentioned above or other relevant material to show that his structure does not violate zoning regulations or development control rules or building bylaws. If after considering such material and after considering the provisions of relevant Law, the Court is satisfied that the unauthorised structure forming subject matter of suit before it can be compounded legally, it can proceed to grant temporary injunction.
19. Bombay High Court in case of Vinayak S Bhapat Vs SP Chandrapur (AIR 2005 Bom R 328) has quoted the Judgement of Shiv Kumar Chadha v. Municipal Corporation of Delhi reported at 1993(3) SCC 161 the Hon'ble Apex Court has considered the issue of grant of temporary injunction in detail from paragraph 30 onwards. The observations made also show that such plaintiff is interested only in getting an order of interim injunction and Hon'ble Apex Court has pointed out that normally such relief is not to be granted without issuing notice to the other side. Hon'ble Apex Court has observed that on many occasions even public interest suffers because of such interim orders. In view of these detail observations of Hon'ble Apex Court, it is not necessary for us to repeat the same again here. However, we have pointed out some of the circumstances which may be relevant for trial court to find out whether applicant has approached it with clean hands and whether there exists any prima facie case in his favour. The encroacher or person who has raised unauthorised structure wants to perpetuate his illegality or irregularity as long as possible and for that purpose wants to engage himself in long drawn legal battle. If in such situation any officer of sanctioning authority who has to defend the action of local body before Court is acting in collusion with such applicant, the local body may avoid to file reply or avoid to defend itself effectively and take adjournments. In that event, the proceedings in court can easily be delayed by applicant and he can continue to enjoy the shelter of interim order. The local body or executive can thereafter defend its inaction by pointing out such pendency in Court as is being done before us. The Court granting such temporary injunction therefore cannot forget its role as custodian and guardian of public interest and it has to safeguard such larger interest independently. Hence, if such temporary injunctions are granted, Court granting it must fix an outer limit beyond which it will not operate. Not only this, if it finds that local body/authority is not co-operating in the matter, it can record an order to that effect and impose heavy costs upon such local authority or officer prima facie found guilty in the matter. In appropriate cases, it can also direct that such costs should be recovered from the officer concerned personally and it can also proceed in contempt against such body or officer. Simultaneously it can also forward copy of its order to concerned Collector or R.D.M.A.for initiation of disciplinary proceedings against such person. If such order is received by Collector or R.D.M.A., the latter shall be under obligation to immediately proceed departmentally against the officer named in the order. The steps about asking the applicant/plaintiff to submit his actual plan for consideration of sanctioning authority as suggested above, in the meanwhile, will also subserve the ends of justice. The advocates appearing for contesting parties before such Court must also ensure that no blame for long pendency can be put upon Court and no adjournment should be asked on the ground of nonavailability of advocate by party in whose favour interim order is operating. No doubt, the subordinate Court has got discretion in the matter of grant of adjournment, however, it has to be conscious of abuse of its process by colluding parties or by influential party and take all precautions to curb or avoid it. The guiding factors mentioned above, if followed, will definitely help the subordinate Court in achieving this goal.
In case of M/S MOTILAL PADAMPAT SUGAR MILLS CO. (P.) LTD. Vs.STATE OF UTTAR PRADESH AND ORS. ”Law is not a mausoleum. It is not an antique to be taken down, dusted admired and put back on the shelf. It is rather like an old but vigorous tree having its roots in history, yet continuously taking new grafts and putting out new sprouts and occasionally dropping dead wood. It is essentially a social process, the end product of which is justice and hence it must keep on growing and developing with changing social concepts and values. Otherwise, there will be estrangement between law and justice and law will cease to have legitimacy Though continuity with the past is a historical necessity, conformity is not to be turned into a fetish”.
In case of AIR INDIA STATUTORY CORPORATION. Vs.UNITED LABOUR UNION & ORS. Decided on : 06/11/1996, It is observed that "We, the people", a charter to establish an egalitarian social order in which social and economic justice with dignity of person and equality of status and opportunity, are assured to every citizen in a socialist democratic Bharat Republic. The Constitution, the Supreme law heralds to achieve the above goals under the rule of law. Life of law is not logic but is one of experience, Constitution provides an enduring instrument, designed to meet the changing needs of each succeeding generation altering and adjusting the unequal conditions to pave way for social and economic democracy within the spirit drawn from the Constitution. So too, the legal redressal within the said parameters. The words in the Constitution or
in an Act are but a framework of the concept which may change more than words themselves consistent with the march of law. Constitutional issues require interpretation broadly not by play of words or without the acceptance of the line
of their growth, Preamble of the Constitution, as its integral part, is people including workmen, harmoniously blending the details enumerated in the Fundamental Rights and the Directive Principles. The Act is a social welfare
measure to further the general interest of the community of workmen as opposed to the particular interest of the individual enterpreneur. It seeks to achieve a public purpose, i.e., regulated conditions of contract labour and to abolish it when it is found to be of perennial nature etc. The individual interest can, therefore, no longer stem the forward flowing tide and must, of necessity, give way to the broader public purpose of establishing social and economic democracy in which every workmen realises socio- economic justice assured in the preamble, Articles 14,15 and 21 and the Directive Principles of the Constitution."
In Rudul Sah vs. State of Bihar, 1983(3) SCR 508, it was held that Supreme Court under Article 32 can grant compensation for the deprivation of personal liberty, though ordinary process of court, may be available to enforce the right and money claim could be granted by this Court. Accordingly compensation was
In National Textile Workers' Union vs.P.R. Ramakrishnan, 1983(1) SCR 922, the Constitution Bench, per majority, held that the role of a company in modern economy and their increasing impact of individuals and groups through the ramifications of their activities, began to be increasingly
recognised. The socio-economic objectives set out in Part IV of the constitution guide and shape the new corporate philosophy. "Today social scientists and thinkers regard a company as a living vital and dynamic social organism with firm and deep rooted affiliations with the rest of the community in which it functions. It would be wrong to look upon it as something belonging to the shareholders." It was further held that "it is not only the shareholders who have supplied capital who are interested in the enterprise which is being run by a company but the workers who supply labour are also equally, if not, more interested because what is produced by the enterprise is the result of labour as well as capital. In fact, the owners of capital bear only limited financial risk and otherwise contribute nothing to production while labour contributes a major share of the product. While the former invest only a part of their moneys, the latter invest their sweat and toil, in fact their life itself. The workers, therefore, have a special place in a socialist pattern of society. They are not mere vendors of toil, they are not a marketable commodity to be purchased by the owners of capital. They are producers of wealth as much as capital nay very much more. They supply labour without which capital would be impotent and they, at the least, equal partners with capital in the enterprise. Our constitution has shown profound concern for the workers and given them a pride of place in the new socioeconomic order envisaged in the Preamble and the Directive Principles of State Policy. The Preamble contains the profound declaration pregnant with meaning and hope for millions of peasants and workers that India shall be a socialist demo- cratic republic where social and economic justice will inform all the institutions of national life and there will be equality of status and opportunity for all and every endeavour shall be made to promote fraternity ensuring the dignity of the individual. "
In Pt Parmanand Katara vs. Union of India, (1989)4 SCC 286, Supreme court
directed even private doctors or hospitals to extend services to protect the life of the patient, be an innocent or a criminal liable for punishment in accordance with law.
In Olga Tellis v. Bombay Municipal Corporation, 1985(3) SCC 545, Supreme Court held that no person can live without the means of living i.e. means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive
him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content of meaningfulness but it would make life impossible to live, leave aside what makes life liveable. The right to life with human dignity encompasses within its fold, some of the finer facets of human civilisation which makes life worth living. The expanded connotation of life would mean the tradition and cultural heritage of the persons concerned.
In State of H.P. vs. Umed Ram Sharma, (1986)2 SCC 68, Supreme Court held that the right to life includes the quality of life as understood in its richness and fullness by the ambit of the constitution. Access to road was held to be an access to life itself in that state.
In Charles Sobraj vs. Supdt. Central Jail, Tihar, AIR 1978 SC 1514, Supreme Court held that the right to life includes right to human dignity.The right against torture, cruel or unusual punishment or degraded treatment was held to violate
the right to life.
In C.E.S.C. Ltd.& Ors.vs. Subhash Chandra Bose, 1992(1) SCC 441, considered the gamut of operational efficacy of Human Rights and the constitutional rights, the right to medical aid and health and held that the right to social justice are fundamental rights.
Right to free legal aid to the poor and indigent worker was held to be a fundamental right in Khatri vs. State of Bihar, (1981)1 SCC 627.
Right to education was held to be a fundmental right vide Maharashtra State B.O.S.
& H.S. Education v. K.S. Gandhi, 1991(2) SCC 716. and Unni Krishnan v. State of A.P., (1993)1 SCC 645.
In case of CONSUMER EDUCATION & RESEARCH CENTRE AND OTHERS Vs.UNION OF INDIA & OTHERS
Decided by SC on 27/01/1995 It is held that " The right to health to a worker is an integral facet of meaningful right to life to have not only a meaningful existence but also robust health and vigour without which worker would lead life of misery. Lack of health denudes his livelihood. Compelling economic necessity to work in an industry exposed to health hazards due to indigence to bread-winning to himself and his dependents, should not be at the cost of the health and vigour of the workman. Facilities and opportunities, as enjoined in Article 38, should be provided to protect the health of the workman.
Provision for medical test and treatment invigorates the health of the worker for
higher production or efficient service. Continued treatment, while in service or after retirement is a moral, legal and constitutional concomitant duty of the employer and the State. Therefore, it must be held that the right to health and medical care is a fundamental right under Article 21 read with Articles 39(c), 41 and 43 of the Constitution and make the life of the workman meaningful and purposeful with dignity of person."
In case of CONSUMER EDUCATION & RESEARCH CENTRE AND OTHERS Vs.UNION OF INDIA & OTHERS
Decided by SC on 27/01/1995 It is held that "Social justice is a dynamic device to mitigate the sufferings of the poor, weak, Dalits, Tribals and deprived sections of the society and to elevate them to the level of equality to live a life with dignity of person. Social justice is not a simple or single idea of a society but is an essential part of complex of social change to relieve the poor etc. from handicaps, penury to ward off distress, and to make their life liveable, for greater good of the society at large."
Justice K. Subba Rao, the former Chief Justice of Supreme Court, in his Book "Social
Justice and Law' at page 2, had stated that "Social Justice is one of the disciplines of justice and the discipline of justice relates to the society." What is due cannot be ascertained by absolute standard which keeps changing depending upon the time, place and circumstance. The constitutional concern of social justice as an elastic continuous process is to accord justice to all sections of the society by providing facilities and opportunities to remove handicaps and disabilities with which the poor etc. are languishing to secure dignity of their person. The Constitution, therefore, Mandates the State to accord justice to all members of the society in all facets of human activity. The concept of social justice embeds equality to flavour and enliven practical content of 'life'. Social justice and equality are complementary to each other so that both should maintain their vitality. Rule of law, therefore, is a potent instrument of social justice to bring about equality in results.
In Delhi Transport Corporation vs. D.T.C. Mazdoor Congress and Ors. Reported in (1991) supp. 1 SCC 600 at 737 para 271 it was held that "law is social engineering to remove the existing imbalance and to further the progress, serving the needs of the Socialist Democratic Bharat Under the rule of
law. The prevailing social conditions and actualities of life are to be taken into account in adjudging whether or not the impugned legislation would observe the purpose of the society."
In Ahmedabad St. Xaviers College Society & Anr. vs. State of Gujarat & Anr. Reported in (1975) 1 SCR 173 at 252] Held through a Bench of nine Judges, That "to establish equality, it would require absolute identical treatment of both the minority and majority. That would result only in equality in law but inequality in fact. The distinction need not be elaborated. It is obvious that equality in law precludes discrimination of any kind whereas equality in fact may involve the necessity of differential treatment in order to attain a result which establishes and equilibrium between different situations".
FOR A QUESTION WHEN TO TREAT WITNESS AS HOSTILE A DETAILED DISCUSSION OF CASE LAW AND ACTS APPLICABLE ON THE SUBJECT BY Karnataka High Court in a case of P. Ramlingam vs Y.B. Sannaiah decided on 5/1/2000
Section 5 of the Evidence Act speaks about evidence to be given on facts in issue and relevant facts. It reads as follows:"Evidence may be given of facts in issue and relevant facts.--Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others. Explanation.--This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure".
While discussing various types of witnesses, the nature of hostile witness is considered under the above Section 5. Under Section 154 of the Evidence Act, the question of permitting the party to be questioned to his own witness is provided for. Section 154 reads as follows: "Question by party to his own witness.--The Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party".
The above rule prohibiting and asking of leading questions to a party of his own witness on the assumption that the witness is always biased in favour of the party calling him. Section 142 of the Evidence Act makes it clear that leading questions must not be asked, except with the permission of the Court. Section 142 reads as follows: "When they must not be asked.--Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief, or in a re-examination, except with the permission of the Court.
The Court shall permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved".
This rule must of necessity to be relaxed when the witness exhibits an opposite feeling, namely, when he by his conduct, attitude, demeanour or unwillingness to give answers or to disclose the truth shows that he is hostile or friendly to the party calling him. The Court in such a case may in its discretion, permit a party to put any question to his own witness which might be put in cross-examination by his opponent, that is, may permit him to lead. This in effect means that the Court may in a fit case permit a party to cross-examine his own witness as provided for under Section 137 of the Evidence Act, which is extracted below:
"Examination-in-chief.--The examination of a witness by the party who calls him shall be called his examination-in-chief. Cross-examination.--The examination of a witness by the adverse party shall be called his cross-examination. Re-examination.--The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination".
It is to be noted that this discretion of the Court to permit the putting of leading questions, or in other words permit to cross- examination, is absolute and is independent of any question of hostility or adverseness. Cuming, J., in Bikram v R, has considered that Section 150 read with Section 143 provided that the Court may allow the party to put leading questions to his own witness. But that I do not think necessarily mean that he must declare the witness hostile and cross-examine him. It is only when he declares the witness hostile and cross-examine him that he cannot rely on his evidence. Putting leading questions to one's own witness or rather cross-examining him is different from discrepancy or contradicting witness.
In Sat Paul v Delhi Administration , the Supreme Court laid down that the discretion is unqualified and untrammelled and is quite apart from any question of the hostility or otherwise of the witness. However, it is liberally exercised. The discretion must be judiciously and properly exercised in the interest of justice. The inference that the witness has turned hostile is to be inferred from the answers given by the witness.
A distinction must be drawn between a true witness and a hostile witness. If exhibition of hostile animus were the sole test of declaring a witness adverse, the object would be frustrated in many instances. A shrewd and composed witness might, by concealing his real sentiments or hostile attitude, give unfavourable evidence and make statements contrary to the facts, known to him. Merely giving unfavourable testimony cannot also be enough to declare a witness adverse, for he might be telling the troth which goes against the party calling him. He is hostile if he tries to injure the party's case by prevaricating or suppressing the truth. The Court has by this section been given a very wide discretion and is at liberty to allow a party to cross-examine his witness. When his temper, attitude and demeanour in the witness-box show a distinctly antagonistic feeling or a mind hostile to the party calling him.
In the case of Baikuntha Nath Chattoraj v Prasannamoyi Debya, it has been held as follows: "Where the purpose of the production of the document at the time of cross-examination of a witness seemed to have been well understood by him and from the record of his deposition it was manifest that after being shown the document, he was directly asked whether it was not a fact that he was not at a particular place on the alleged date as was clear from the document and where on re-examination no attempt was made to elicit any explanation. Held, the witness was properly contradicted".
The dictum in State of Mysore v Raju Shetty, is to the following effect: "Ordinarily when a party puts a witness in the box, he can be taken to represent to the Court that the said witness is expected to state the truth. On the ground of policy a party should not be permitted to treat a witness as hostile the moment he gives any answers adverse to his case. It is entirely for the Court to decide whether in given circumstances a witness has turned hostile and whether permission should be granted to the party calling him to cross-examine him. Hence, even if a party calling a witness wants to treat him as hostile, his opinion as to the hostility or otherwise of the witness or the truth or otherwise of his evidence, is not final and not binding on the Court. The very object of taking evidence is to discover the truth as far as it is humanly possible for the presiding judicial officer to do. The fact, therefore, that sound public policy requires that a party should not be permitted to malign his own witness, cannot and does not absolve the Court of its own high duty of attempting to discover the truth. Even when a witness deposes in favour of the case of the party calling him, the Court on a consideration of his evidence is entitled to either believe or disbelieve him. The rule does not change if the evidence given by such a witness is adverse to the case of the party calling him. Even in such a case, the Court has power and duty of deciding whether or not to believe him. It is, therefore, not light to proceed on the basis that whatever is stated by a witness which is not in favour of the case of the party calling him should necessarily be believed as if it were an admission made and binding upon the party calling him".
In Saraswathamma v Bhadramma , the following proposition is relied upon: "A witness cannot be treated as hostile merely because his evidence is favourable to the other side, and the fact that the witness has become hostile has to be established by eliciting information such as could give an indication of hostility.
It is not possible for Court to say without giving reason that he will not believe a witness after permission for treating the witness as hostile has been refused by the Court unless the Civil Judge himself comes to the conclusion that he has turned hostile".
The dictum in Sat Paul's case, supra, is to the following effect: "The discretion conferred by Section 154 on the Court is unqualified and untrammelled and is apart from any question of hostility. It is to be liberally exercised whenever the Court from the witness's demeanour, temper, attitude, bearing, or the tenor and tendency his answers, or from a perusal of his previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. The grant of such permission does not amount to an adjudication by the Court as to the veracity of the witness. Therefore, in the order granting such permission, it is preferable to avoid the use of such expression, such as "declared
hostile", "declared unfavourable", the significance of which is still not free from the historical cobwebs which, in their wake bring a misleading legacy of confusion, and conflict that had so long vexed the English Courts.
Even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the Court by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto".
In Syad Akbar v State of Karnataka, the Supreme Court has held as follows: "As a rule, mere proof that an event has happened or an accident has occurred, the cause of which is unknown, is not evidence of negligence. But the peculiar circumstances constituting the event or accident, in a particular case, may themselves proclaim in concordant, clear and unambiguous voices the negligence of somebody as the cause of the event or accident. It is to such cases that the maxim res ipsa loquitur may apply, if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. In such cases (a) the event or accident must be of a kind which does not happen in the ordinary course of things if those who have the management and control use due care and (b) it has to be further satisiied that the event which caused the accident was within the defendant's control. The reason for this second requirement is that where the defendant has control of the thing which caused the injury, he is in a better position than the plaintiff to explain how the accident occurred. Thus, for the application of the maxim res ipsa loquitur no less important a requirement is that the res must not only bespeak negligence, but pin it on the defendant".
KARNATAKA High Court in a case of Gangoji Rao And Anr. vs H.K. Channappa And Ors. Decided on 9/12/1982. Reported in 1983 (1) Kar. L.J. 177; observes as follows
The view that I have taken finds support in the ruling rendered by the High Court of Rajasthan in the case, Girdhar Singh v. Anand Singh. In a similar case, the High Court of Rajasthan, in para 12 of the judgment, has held thus : "As regards the question of taking permission from a competant Court of law in this case, I am in agreement with the view taken in Sunnamani Dei v. Babaji Das that when the minor and his mother constitute a Hindu Joint Family, each with a moiety of undivided interest in any movable property be longing to the family, in the absence of the father, the mother as natural guardian, can alienate even the minor's half share in the immovable property under the personal law. Section 8 of the Hindu Minority and Guardianship Act will not apply to such alienation. This view finds support from Smt. Suggabai v. Hira Lal ."
In Re. Krishnakant Maganlal, , Bhagwati J., delivering the judgment has observed. (at p. 73) "The restrictions contained in Section 8 do not apply in respect of the undivided interest of a minor in joint family property and Section 8 does not debar a Manager and Karta of a joint family from alienating joint family property without obtaining the previous permission of the Court even if the Manager and Karta happens to be the natural guardian in respect of the separate property of any one or more of the minor coparceners. Of course the alienation would have to be justified under Hindu Law, but Section 8 does not require that any previous permission of the Court should be obtained before effecting such alienation........"
The decisions discussed above would clearly establish that the term 'joint family property' is used in a wider sense in the relevant sections in the Act than in the restricting term 'Coparcenary' used in the Common (Hindu) Law. It further becomes established that in a family, consisting of the mother and her minor children, the mother can act as Manager of the joint family properties though she could not do so under the Common (Hindu) Law with regard to coparcenary properties. It is further established that the mother, as manager of the joint family properties, has the same rights as the 'karta' under the Common (Hindu) Law to bring about alienation of the joint family properties, including the share of the minors for legal necessity or for the benefit of the estate.
KARNATAKA High Court in a case of A. Chidananda (Deceased) By L.Rs. And Anr. vs Smt. Lalitha V. Naik And Ors. Decided on 19/1/2006 observed as follows
In the instant case, as a matter of fact, the property in question was sold in favour of 3rd defendant either for discharge of antecedent debts or for other necessities and it appears, two properties are said to have been acquired for the benefit of the family by the 1st defendant acting in the capacity of a Manager or guardian of the family. In fact, it is also the case of 3rd defendant that the suit filed by the plaintiff is for declaration to declare that the suit property sold in favour of 3rd defendant by defendants 1 and 2 is null and void and also for partition of the suit property and the suit ought to have been dismissed in limine since all the properties are not brought into the common hotchpot for the purpose of partition. At this stage, it is the argument of the appellants' Counsel that they have questioned only the sale of the property by other defendants in favour of 3rd defendant and as such, the suit is maintainable. It has to be noted that the suit filed is not for a mere declaration, it is also a suit for partition and in the circumstances, the plaintiffs should have brought all the properties into the common hotchpot. This aspect has been referred only incidentally although it does not require any comments by me.
Further, in the decision in Kishore's case, referring to the recitals in the deed, this Court has relied upon the decision of the Supreme Court in Smt. Rani and Anr. v. Smt. Santa Bala Debnath and Ors. and Radhakrishnadas and Anr. v. Kaluram (dead) by L.Rs and Ors. , regarding burden of proof on the part, of the alienee is concerned, wherein in Rani's case, it is observed that the recitals in a deed of legal necessity do not by themselves prove legal necessity. The recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered into. The recitals may he used to corroborate other evidence of the existence of legal necessity. The weight to be attached to the recitals varies according to the circumstance. In Radhakrishnadas case, it is observed that it is now well-established that what the alienee is required to establish is legal necessity for the transaction and it is not necessary for him to show that every bit of the consideration which he advanced was actually applied for meeting family necessity. The reason is that the alienee can rarely have the means of controlling and directing the actual application of the money paid or advanced by him unless he enters into the management himself.
Moreover, as is held by the Division Bench, the natural guardian of a minor has the necessary competence to deal with even the separate property of the minors. Nonetheless the natural guardian remains a guardian of the minors in other senses also. It is also emphasised that natural guardian who has a share in the property along with the minors' undivided interest in the property is legally competent to alienate the property as a whole.
Karnataka High Court in a case of Rajasekhar vs Siddalingappa Reported in I.L.R (1986) 2 Kant 2765 Decided on 29/7/1986 by Justice Nesargi, J. observed as follows:-
In Sunamani Dei -v.- Babaji Das, , R. N. Mishra, J. (as he then was) has held that when the minor and his mother constitute a Hindu joint family each having a undivided interest in the house belonging to the family, in the absence of the father, the mother, as natural guardian, can alienate even the minor's half share in the house under the personal law. Dealing with the question that a female member cannot act as the karta of a joint family, his Lordship has held as follows : "The sharp division in judicial opinion as to whether a female member can act as the karta has been set at rest by the Supreme Court in (Commissioner of Income-tax v. Seth Govindram Sugar Mills). Law has also been settled that a Hindu joint family can exist with one male member and his mother (See , G. Buddanna v. Commissioner of Income Tax, Mysore). At the time of the impugned alienation (Ex. A), the minor and his mother were members of such a Hindu joint family each of them having a moiety undivided interest in the property (as conceded in paragraph 1 of the plaint). The plaintiff asked for a declaration that Ex. A was not valid alienation. So far as the mothers (defendant-No. 3's) share is concerned, on the finding of the lower Appellate Court the same has got to be upheld. So far as the minor's half share is concerned, as natural guardian the mother could alienate the same under the personal law."
Karnataka High Court in a case of Smt. Mangala vs Smt. Jayabai And Others Decided on 15/4/1994 By Justice Vasanthakumr, J. Reliance is placed on the decisions held in C.I.T. v. G.S. Mills; , Gangojirao v. Chennappa; , Surjit Lal v. I.T. Commr. Bombay, Rajasekar v. Siddalingapa; , T.Gounder Parvathimmal. and framed following points of Hindu Law
1. Co-parcenership is a necessary qualification for the managership of a Joint Hindu Family and as a widow is not admittedly a coparcenor, she has no legal qualification to become the manager of a Joint Hindu Family.
2. In the absence of father, the mother could manage the Joint family property including the interest of male and female minors, in such property. Section 12 of M and G Act does not empower appointment of Court guardian. Mother managing family property being natural guardian. Section 11 of M. & G. Act is not attracted, and can validly alienate the property including minors in it for family necessity without obtaining permission of the Court. Legislature has in its wisdom used term 'Joint Family' in Section 6 and 16 thus contradistinguishing it from co-parcenary. The mother can also manage the family property is evident from Section 12 referring to family property being in the management of 'an adult member' of the family. The Joint family includes in it the mother, son and umarried daughters and the expression joint family property is used in its wider sense including the shares of these female members.
3. Hindu co-parcenary is a much narrower body than the Joint family. It includes only those persons who acquire by birth an interest in the joint or co-parcenary property and there are sons, grandsons and great-grandsons of the holders of the Joint properly for the time being. Since under the Mithakshara Law the right to joint family property by birth is vested in the male issue only females who come in only as heirs to obsstructed heritage cannot be co-parcerners. Outside the limits of co-parcenary there is a fringe of persons males and females who constitute an undivided or joint family. There is no limit to the number of persons who can compose it nor to their remoteness from the common ancestor and to their relationship with one another. The joint Hindu Family is thus a larger body consisting of group of persons who are united by the tie of sapindaship arising by birth, marriage or adoption. The fundamental principle of the Hindu Joint Family is the Sapindaship. The absence of an antecedent history of Jointness between the assessee and his ancestors is no impediment to the assessee his wife and unmarried daughter forming a joint Hindu Family. That it does not take more than one male to form a joint Hindu Family, with female is well established.
4. Thus a man who separates from his father or brothers may nevertheless continue to be joint with member of his own branch. He becomes the head of a new Joint Family if he has family and if he obtains property on Partition with his father and brothers that property becomes ancestral property or hsi branch Qua him and his male issue. It is true that one cannot constitute co-parcenary with his wife and unmarried daughter.
5. Joint Hindu family with all its incidents is thus a creature of law and cannot be created by act of parties except to the extent of which a stranger may be affiliated to the family by adoption. But the absence of antecedent history of jointness, between the male member and his ancestors is no impediment to the male member, his wife and unmarried daughter forming a joint Hindu family. The male member's wife becomes his sapinda on her marriage with him. The daughter too on her birth became sapinda and until she leaves the family by marriage the tie of sapindaship will bind her to the family of her birth.
6. Minors undivided interest in joint family property does not fall within the ambit of Section 6 of Mand G Act. When Section 8 does not take within its ambit minors undivided interest in the Joint Family property. Section 8(3) would not be applicable. It is settled law that natural guardian of minor has the necessary competence to deal with even the separate property of the minors for necessity.
7. Where all members who could succeed to the properties of the deceased are female members the position is clear that such female members who succeed to the ancestor take no doubt definite shares in the estate under the Hindu Succession Act but the interest of each in it is a tenant in common. Though it entitles a sharer to claim an independent share in the Joint Hindu Family yet she cannot act for other members of the family and assume the garb of Joint Family Manager or an eldest member of the family so as to alienate or part with such properties for the benefit of one or such other member.
8. Ratio of the decisions clearly postulates existence of joint Hindu Family constituting of either male members or one male member, by virtue of which after the death of Karta of the Joint Hindu Family, family continued to be Joint Hindu Family provided one male member exists. Mother being natural guardian can meddle with the interest of her minor children which is inclusive of male and female members. We are of the view that in the absence of male member, the famly property in the hands of widow and her female children cannot be characterised as Joint Hindu Family Property with a view to enjoin the widow to act as either Manager or as natural guardian to meddle with the family property with a view to bind the interest of minor daughters who will have succeeded to the estate of their father by virtue of succession under the provisions of Hindu Succession Act de hors the provisions of Section 8(3) of the M and G Act. Further a joint and undivided family may consist of persons who do not form any co-parcenary at all, it may consist of persons only provided there is amongst them a potential mother who in the way of nature or law may add a male member to it.
9. From the ratio of the above decisions, what is to be noted is that Hindu Joint Family can exist with one male member. While dealing with the powers of mother as natural guardian regarding the Joint Family Properties one thing is evident that existence of male member is contemplated. Further, there are instances where male member is a minor even then he can be construed as karta of the Joint Hindu Family and mother can as natural guardian of the Manager minor karta of Joint Hindu Family can meddle with the family properties for family necessity so as to bind all the members of Joint Hindu Family.
10. The question that arises for consideration is whether restrictions contained in S. 8 is applicable to cases where there is no male member in the family and mother as natural guardian of her minor daughters who constitute the family can alienate their shares so as to bind their shares which they have succeeded to the estate of their father, by virtue of Hindu Succession Act, who died intestate and that too when the family property was retained by him as the karta of the joint Hindu Family at the time of death. What is to be noted is that when father dies with sons and minor daughters who are also entitled to inherit jointly with the sons to the father's property under Hindu Succession Act, 1956 the interest of minor daughters in the property left by their father's property will be the undivided interest in the joint family pro- perty and Section 6 of the M and G Act would not apply, since there exists a Joint Hindu Family and share would be undivided interest. But in cases where father dies leaving behind only his wife and minor daughters, the question of family property retaining the character of Joint Hindu Family property does not exist and as such the operation of Section 8(3) of M and G Act is attracted. (NOTE THIS LAW CHANGES AFTER WOMEN IS GIVEN RIGHT TO PROPERTY UNDER 2005 AMENDMENT - DISCUSSION NEEDED)
11. Sales by mother as natural guardian of her minor daughters shares would not be binding on the minor daughters shares and all alienations have to be declared as void subject to the options to be exercised by the minor daughters since there exists no Joint Hindu Family in the instant case after the death of the father who has left no male issue.
In Amrutham Kudumbah v. Sarnam Kudumban reported Reported in AIR 1991 SC 1256 while discussing the scope of sub-section (3) of Section 5 of Minority. & Guardianship. Act, Supreme Court has observed at para. 9 as follows. It reads :
"The effect of this sub-section is that any disposal of immovable property by a natural guardian otherwise than for the benefit of the minor or without obtaining the previous permission of the court is voidable. A person entitled to avoid such a sale is either the minor or any person claiming under him. This means that cither the minor, or his legal representative in the event of his death, or his successor-in-interest claiming under him by reason of transfer inter vivos, must bring action within the period prescribed for such a suit, i.e., three years from the date on which the minor died or attained majority, as the case may be. In the present case, the suit was brought, as found by the Courts below, within three years after the minor attained majority."
The Supreme Court of India in the case of S. Chattanatha Karayalar v. Central Bank of India Ltd., (AIR 1965 SC 1856) held that : "Where a transaction between the same parties is contained in more than one document, they must be read and interpreted together and they have the same legal effect for all purposes as if they are one document."
In case of HER HIGHNESS MAHARANI SHANTIDEVI P. GAIKWAD Vs.SAVJIBHAI HARIBHAI PATEL & ORS. It is quoted from English decision that "Where several deeds form part of one transaction and are contemporaneously executed they have the same effect for all purposes such as are relevant to this case as if they were one deed. Each is executed on the faith of all the others being executed also and is intended to speak only as part of the one transaction, and if one is seeking to make equities apply to the parties they must be equities arising out of the transaction as a whole."
In case of Godhra Electricity Co. Ltd.& Anr.v.The State of Gujarat &Anr. It is quoted that "In the process of interpretation of the terms of a contract, the court can frequently get great assistance from the interpreting statements made by the parties themselves or from their conduct in rendering or in receiving performance under it. Parties can, by mutual agreement, make their own contracts; they can also by mutual agreement, remake them. The process of practical interpretation and application, however, is not regarded by the parties as a remaking of the contract; nor do the courts so regard it. Instead, it is merely a further expression by the parties of the meaning that they give and have given to the terms of their contract previously made. There is no good reason why the courts should not give great weight to these further expressions by the parties, in view of the fact that they still have the same freedom of contract that they had originally. The American Courts receive subsequent actions as admissible guides in interpretation. It is true that one party cannot build up his case by making an interpretation in his own favour. It is the concurrence therein that such a party can use against the other party. This concurrence may be evidenced by the other party’s express assent thereto, performances that indicate it, or by saying nothing when he knows that the first party is acting on reliance upon the interpretation."
Karnataka Land Reforms Act 1961 commonly referred to by advocate brethrens as a law of tenancy in respect to agricultural lands. Beyond that another important aspect which is forgotten in these days by law enforcers and revenue department is regarding sale and purchase of agricultural lands.
Whenever there is a sale transaction of agricultural land a declaration in sub-registrar office have to be filed by both purchaser and seller as required under section 81A of Karnataka Land Reforms Act. Such declarations were made in falsify way by both sellers and purchasers either hiding their real non-agricultural income or by hiding their real extent of holding.
Section 63 of Karnataka Land Reforms Act prescribes the holding limits from 10 acres of A class land to 54 acres of D class land. Section 79A of Karnataka Land Reforms Act prescribes income limitation to acquire agriculture lands. No person having non agricultural income (either individually or in HUF) exceeding two lakh rupees in average for five years shall purchase agricultural lands. There are many instances of purchase of agricultural lands in individual names of a family exceeding holding limits.
Revenue department of Karnataka is hiding the website address which is showing online data of RTC’s of land holdings throughout the state. Such holdings of lands throughout the state may be viewed online at http://220.127.116.11/Home.aspx. When looked into extent of holdings there we find following types of illegal things approved by the active collusion of revenue department.
100's of acres of agricultural lands were purchased by non-agriculturists the shara in mutation registers lacks certification as to whether 79A and 79B of Karnataka Land Reforms Act has been verified or not.
The agricultural lands were purchased on behalf of some developers or builders in the name of directors.
The mutation shara in almost cases does not disclose as to amount for which such transaction of sale took place.
The sale transactions of small extents were rampant to avoid the income tax clearance and to avoid khatha change difficulties.
Some khathas were made out even after having statistics related to land holdings which violate section 63 of Karnataka Land Reforms Act.
Many associations, trusts, companies, have purchased agricultural lands directly in their names without getting suitable permission from government as provided under section 109 of Karnataka Land Reforms Act.
In many cases Deputy commissioners have violated their capacity to grant permission under section 109 to an extent not exceeding half an hectare. that is 1.25 acres or 50 guntas. The large extent over that has to be notified by government to exempt application of section 63, 79A, 79B or 80 of Karnataka Land Reforms Act.
Many revenue officials are using this restrictions to favour through corruption.
In some cases although affidavit and saral income tax returns copies are collected to test 79A, 79B violations. But revenue department is not verifying those documents by summoning relevant documents from Income Tax department. There are increased creations of forged saral copies. In a disclosed fraud in relation to application for loans with banks wherein more income showing copies are manipulated to get more loans, In this area low income saral copies are manipulated to show non-agricultural income below Rs 2 lakhs.
In order to shield illegal transactions some relevant informations were not entered in RTC's by Revenue departments.
The questions which hunt in my mind is whether Land Reforms Act need amendment or whether Land reforms act needs strict implementations. To get answers for this questions. Lets see what's happening in village side.
Naturally People dream of becoming rich overnight and enjoy the luxuries hereto found in cinemas. There is no such change in human tendency with regard to rural people. They too have ambitions to have materialistic life. That's why many people were found near single number lottery stalls before its ban.
Many rural people expecting crores together money for their agriculture lands, when once it was neglected by them as non-yielding and only consuming utility, they have left hopes on lands, but now a day farmer’s Bangalore agriculturist relatives are getting crores together money and their life styles are changing from cycle to scorpio. Many farmers in anticipation of changing their life styles also selling their lands, and many middle men investing on lands are utilising this selling phobia to their advantage.
If this type of investment criteria is left without a check to it what happens to production of food. Even if some land acquisition proposals are made people leave cultivating in their lands. If such mass scale desertion of agricultural activity moves unchecked, whether concrete jungles grow food for human consumption.
What happens to idle minds of farmers after they desert their primary occupation? One can see in villages/towns every house is having real estate agent. Every one is doing this broker business. To what extent it will flourish. Idle minds of farmers may be a cause of worry to the future police administration.
When present land reforms laws are there in existence people are violating it with all corrupt attitude. There is no respect towards laws of the legislature by the executive machinery. First of all non agricultural income of legislatures including their perks and others exceed two lakh rupees per year and the Legislatures themselves are not entitled to purchase agricultural lands. There are many instances of purchase of agricultural lands by legislatures. The law framing authority themselves violated their framed laws. Taking this loophole executive machinery as law enforcers are becoming corrupt.
Many Bar and Restaurants are having good business in and around Devanahalli, because every house hold got crores together money and some are spending on evil habits. What's happening to our peace loving farmer he was thrown to streets as drunkard, gambler, gangster, etc.
Litigant minded farmer who has sold land when it was in lakhs now in the greed of crores putting up litigations by finding one or other loopholes in the transactions. Many old cases of revenue records stray entries were digged up to create litigations and expecting money in turn for settlement.
Recent Hon’ble Karnataka High Court Judgment regarding women's Rights to property have brought in many ideas to dispute digging farmers. No limits to greed, no limits to materialistic needs are the chief causes for such peace less situations.
Many acquisition gossips are going on in many villages. Many realtors spread such gossip through revenue officials and purchase lands from farmers. Due to low returns from government acquisition proceedings farmers are selling to realtors. This type of land Mafia is working throughout state.
Litigation settling mafia is working in almost all places. Both litigants are pressurized to sell at cheap rates and settle their claims. Farmers in anticipation of quick money settle their genuine case with illegal litigant. Many litigations were unnecessarily created by financing through realtors and subsequent settlements take place with pressure from land mafia elements.
There is a need for social survey before there is any change in Karnataka Land Reforms Act. The below stated facts need to be surveyed to preserve our backbone of the country.
1. Whether people who sold lands are happy?
2. What type of avocation they have selected?
3. What are their problems even after they have money?
4. Whether they are happy with lands or with money?
5. How are they contributing to the development of economy?
6. How do they spend and save money?
7. How do their family relations changed when money got in?
8. Whether Joint family satisfaction is there without lands?
9. How many farmers children's are at cross roads?
10. What type of disputes arose after sale of agricultural lands?
11. How does the lifestyle changed?
12. Whether capable of maintaining such lifestyles in long run?
13. What is their sensational attachment to lands?
14. Whether there is any depression in the minds of farmers?
15. Whether they feel to migrate from their nearby village?
16. Whether they are spending on wise investments?
17. How many have spent money over re-acquiring lands in other places?
18. How many have created their bread earning routes for survival?
19. What is the educational development of children after sale of lands?
Few needed reforms under the present land laws.
1. Land records related to a land should be computerized to verify online the old records also related to a survey number.
2. The pending cases related to land records in revenue courts needs speedy disposal.
3. It is a sorry state of affairs that land tribunals are still having cases related to tenancies.
4. Retired Judicial officers should be appointed to dispose off the disputes pending in revenue courts.
5. The revenue record that is RTC’s should have entries related to land grants, land alienation orders, pending disputes both civil and revenue, RTC’s provided as surety in criminal cases needs to be entered to avoid misuse of farmers in criminal cases, the relevant columns of number of trees and other information needs to be updated.
6. It shall be mandatory duty of the Assistant commissioner’s that they should take action against uncultivated land holders under section 84 of Karnataka Land Reforms Act.
7. All the Government lands should be listed with specific words in RTC’s in order to avoid encroachments of Government lands.
8. Some NAK lands that is non-agricultural kharab’s having no entry of private persons names in RTC’s are siphoned off by private persons, As per section 67 of Karnataka Land Revenue Act those lands which does not belong to any individual shall be government land. When NAK lands have no entry of private persons names in RTC’s then it certainly belongs to Government.
9. Some tahsildar’s argue that NAK lands are alienated lands but revenue department circulars speaks other wise there is clear cut directions in circulars that all alienated lands should be entered in RTC’s with owners name to whom alienation order was given, with extent of alienation and purpose of alienation with order number and date. This is a mandatory duty of tahsildars as quoted in repeated circulars. But tahsildars are reluctant to take action against government land encroachers and almost of them are not ready to prepare list of government lands.
10. We have seen and witnessed allegations and counter allegations of government land encroachments from A.T. Ramaswamy report, when looked into actual reality thousands of acres of government lands were looted by private individuals by having created stray entries in RTC records. And some unchallenged orders were obtained from revenue courts with collusion of revenue authorities. Today we find scarcity of lands for burial of human body in Bangalore, At least government lands in each district to be preserved for construction of decent burial places without tombs so that our future generations may not be worried to dispose off our dead bodies.
11. The income limit for acquisition of lands needs proper documentation and verification. Revenue department should take written reply and documentary proof from IT department for verification of non-agricultural income.
12. Government should detect such violations of section 79A and 79B sue motto or pass a law to have voluntary disclosure with penalty so that there will be mass scale collection of funds which can be utilized for the welfare of farmers.
Government should pass strict law to enforce cultivation of agricultural lands by the holders of land, or to surrender land to landless labourers on fixed returns assuring landlords also of equal protection of their ownership.
13. Government should pass strict law not to convert fertile lands to non-agricultural purposes. There should be a survey of demarcation of fertile agricultural lands. The irrigation facility provided lands needs to be preserved from conversions to non agricultural purposes. Although there are repeated circulars from revenue department banning acquisition of fertile lands and preference of large holders rather than small holders in the matter of acquisition, little efforts were made to implement such circulars by the acquiring authorities.
14. The developmental activities like SEZ and others should be implemented in the area having “Banjaru Bhoomi”. Panchayath department is spending crores together money to make “Banjaru Bhoomi” a fertile land on the other side revenue department is acquiring fertile lands for industrial and other developmental purposes. When barren lands are identifiable by the sister department for spending grants and other developmental funds why the department of revenue not identifying barren lands before going in for acquisition of lands.
15. There should be some relaxation in respect to extent of holdings for genuine agricultural reasons. Each such holdings should account for its investment and returns so that speculative investments are best avoided.
16. There should be complete ban of alienations by a person who purchases land only for layout development. Such investors should be streamlined with previous permissions of government. Government should spell out its targeted layouts in targeted lands by bifurcating lands with class already under Karnataka Land Reforms Act.
17. There should be strict laws to preserve public tanks and rain water flowing Hallahs, the under ground water depletion is affecting water table and also causing warming of earth forecasting serious troubles. In the name of development no public tanks be destroyed, arrangements have to be made to preserve water in tanks and to preserve encroachments of rain water flowing raja galuve’s.
18. The Co-operative farming provisions under chapter VII of Karnataka Land Reforms Act needs to be encouraged by the government through various measures to give stiff competition to world economy.
To combat all the above discussed aspects of farming population’s present problems, our countries Land reforms agenda to preserve social Justice have to be strengthened by adoption of following aspects in all the state acts which is under grave threat of repealment due to globalisation. Our Advocate community in all states should insist upon preserving land reforms acts with several modifications suiting present needs.
1. The ceiling limit on land holding should be strengthened which is not followed in strict sense, many politicians and black money operators are investing on land by holding lands crossing ceiling limits. The action against those should be initiated.
2. The Co-operative farming mode shall be encouraged rather than allowing big extent of lands at the hands of few rich people.
3. Fertile agricultural lands should be strictly prohibited from alienating to non-agricultural use.
4. Fertile agricultural lands should not be acquired by state, for non-agricultural use.
5. State before acquiring private lands should check out whether any government waste lands are available for the purpose.
6. Not only tenants should be protected under land reforms but small and marginal farmers should be protected from constant threat of acquisition. Since in the name of threat of acquisition land mafia is increasing every where.
7. Land provided by Government for non-agricultural purpose to any parties should be used for such purpose within five years, failure on the part of allottees, should be taken serious action.
8. Surplus Land distribution should be made with greater transparency and publication. No political mis-use of such distribution shall be made.
9. List of farming community with photos and their land holdings should be published in a website, to check black money investments and allowing transparency in land affairs.
10. List of waste land and un-cultivated lands shall be published in website to allow any developmental activity over such lands.
11. Land Mafia and Land Hoardings should be seriously dealt with by having suitable “Land Reforms Judicial Magistrate” to entertain complaints on those matters.
12. Common property such as forests, grazing lands, water, fisheries, Tank, Pond, etc is to be held and managed through a community resource management system. By formulating a separate rules and regulations for it.
13. It would be important to widen the scope of land reforms beyond the mere activity of redistribution of land or revision of ceiling limit. In order to be effective, land reforms must be seen as part of a wider agenda of systemic restructuring that undertakes simultaneous reforms in the sectors of energy and water. These deeper structural reforms shall ensure that the exercise at redistribution of land actually becomes meaningful by enabling the small farmer to turn his plot into a productive asset.
CONCLUSION: It is time for all netha's and babu's of law department to think about the proper planning in utilization of agricultural lands. Development shall take place, not at the destruction of agricultural economy. Development shall take place, not only in construction of buildings and roads but also in construction of positive minds of people at large. Development without positive minded citizenship is a great curse to our future generations. People from agriculturist family may be left as Idle minds, certainly there will be lot of devil’s workshops that will ruin our future generations. Government should frame proper laws to preserve back bone of our country that is farmer and his lands.