Top News Headlines 14th Mar 2022: Uttarakhand HC Dismisses Challenge To Land Acquisition For ITBP Near LAC

Uttarakhand HC Dismisses Challenge To Land Acquisition For ITBP Near LAC: Says No Public Right Is Superior To The Defence Of The Country

• In the case of Heera Singh Pangtey and ors. vs. State of Uttarakhand and ors. the Hon’ble Uttarakhand HC has dismissed the writ petition challenging the notification issued under Section 11(1) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 which proposed to acquire lands near the line of actual control for the Indo-Tibetan Border Police (ITBP). 
• In the instant case, the petitioners were residents of the village Milam, which is situated at the height of 12,000 to 13,000 feet above sea level, in the district of Pithoragarh. The land which was the subject of the current dispute was located about 25 kms from the Line of Actual Control, which is the border of India and China, and is of a great strategic importance. 
• The petitioners had argued that they belonged to the Bhotia tribe, which has been listed as a Scheduled Tribe and is protected by the Constitution, and thus, by virtue of section 40 and 41 of the Act stated above, their lands could not be acquired, even for defence purposes. It is important to note that as per section 41 of the Act, no lands belonging to scheduled castes and tribes would be acquired except for very strong reasons, and would be done only as a last resort. This section also contains various special provisions which serve the purpose of protecting the rights of these communities.
• Another argument that was advanced by the petitioners was that the notification was in violation of Section 21 of the Act which mandates a 30 days notice period which has to be provided after the publication of the notification before acquisition of the land, even if the said acquisition was for public purposes. 
• The said notification was also said to be in contravention of section 15 of the Act which states that any person who is interested the said and has to be given a period of  sixty days for objecting to the said acquisition on the ground of justification offered for public purpose, findings of the Social Impact Assessment Report, etc. 
• The Hon’ble Court relied upon the decision in Laxman Lal vs State of Rajasthan (2013) SCC wherein it was held that the intention behind section 15 of the Act for hearing an objection is confined to the effect of the Social Impact Assessment Report  and ruled that this provision does not provide absolute immunity to the landholder when the said right impedes upon the defence of the Country, which makes immediate possession of the land very necessary for meeting the defence needs. 
• The Court rejected the argument of the petitioners wherein they claimed special rights as being members of Scheduled Tribe. The Court observed that no material had been brought on record to suggest that the village Milam was a scheduled area as per Part C of the Fifth Schedule of the Constitution. 
• The Court also ruled that though the right to property was not a fundamental right anymore, it was still a Constitutional right and the same cannot be infringed arbitrarily. But it could be done through due process of law and when reasonable compensation has been awarded in lieu of the acquisition. 
• Thus, the writ petition was dismissed on the ground that the safeguard that has been granted by the statute cannot be put above the defence needs of the Country and particularly so when the right granted under Article 300A of the constitution is still protected by way of awarding of reasonable and fair compensation. 

No Reappreciation Of Evidence Allowed Under Article 227 Unless Finding Of Lower Court Perverse:SC

• The Hon’ble Apex Court, in M/s Puri Investments vs. M/s Young Friends and Co. and ors. held that the provisions of Article 227 of the Constitution which provides for the supervisory jurisdiction of the HC is restrictive in nature and as such does not allow the reappreciation of evidence. 
• The HC can only interfere with the decision of the fact finding Court if it’s findings are perverse, for instance if the findings are erroneous due to non appreciation of material evidence or if they are based upon inferences which are bad in law. 
• In the instant case, the respondents were running a chemist shop in a shop room preise, which was owned by the appellant/landlord. The landlord initiated eviction proceedings before the Additional Rent Controller under section 14 of the Delhi Rent Control Act on the grounds that certain portions of the shop premises were sublet without taking his permission. The said petition was dismissed by the Additional Rent Controller, but was allowed by the Appellate Tribunal and allowed the eviction. The respondents invoked the power of Article 227 and approached the HC, where the findings of the Appellate Tribunal were reversed and the order was set aside. 
• The issue before the Hon’ble SC was whether the decision of the HC whereby it reversed the order of the Appellate tribunal was due to the findings being perverse or not. The Court observed that there was no dispute as to the occupation of the shop premises by the respondents. The HC had noted that it was only bound to interfere with the decision of the Appellate tribunal when the findings are perverse. Hence, the HC knew of the restrictive nature of Article 227.
• Thus, the Court was of the view that the HC had overstepped by re-appreciating the evidence and going deep into the factual arena to disagree with the findings of the fact-finding forum. 
• The Apex Court also observed that the HC had tested the findings with the lens of an Appellate Court rather than with the lens of a Supervisory Court in adjudicating the application under Article 227 of the Constitution, which is impermissible. 
• Thus, the appeal was allowed. 

Court Has To Be Prima Facie Satisfied Of The Charges Alleged Against The Accused While Issuing Summons Under IPC, 1860: Delhi HC

• The Hon’ble High Court of Delhi, in the case of Anjani Gupta v. The State (NCT of Delhi) & Anr. (DL CRL.M.C.-2120/2018) has observed that there must be a prima facie appreciation of evidence along with application of judicial mind for a summoning order to be just and legal. There must be sufficient grounds to proceed against the accused.
• The given petition arose from the impugned Order dated 17th March, 2018, where it was held that a prima facie ground had been made out to allege that the Petitioner committed theft as well as the summons issued to the Petitioner were upheld by the learned Sessions Court.
• The impugned order was a part of one of the proceedings that has arisen out of matrimonial discord between two people which has also led to filing of more than 50 criminal and civil cases between not only the husband and the wife but also their family members.
• Learned Additional Chief Metropolitan Magistrate in a complaint case filed by Respondent has issued summons under Section 380 of the IPC for allegedly committing theft of certain letters belonging to the respondent no.2, while he was not present at his house. A revision petitioner against such order was dismissed by the learned Sessions Court on 17th March 2018.
• The learned counsel for the petitioner contended that the purpose of the complaint was just to harass the petitioner. The respondent no.1 has also been constantly denying right of residence in matrimonial home as declared by the appropriate court. The Revision Petition was dismissed solely on the basis of the testimony of two neighbours, who concealed the fact that the Police assistance was sought for Right of Residence as ordered but the efforts failed.  
• It was submitted that mere picking up certain letters lying at the premises can’t establish theft. Since the property was the petitioner's matrimonial home, it could not have been presumed that all letters put in the mailbox of the premises belonged to the Respondent No. 2. He was not able to establish that the post mails belonged to him and further, he was not able to give a description of the said letters.
• The Learned Counsel appearing for the respondent opposed the contentions and submitted that granting the Right of Residence was limited to the first floor of the premises. The Petitioner had brought a key maker to the premises and broke into the house which was in no manner permitted.
• The part of the house belonged to the Respondent No. 2, and the letters were in his deemed possession and removal of the same without his consent and knowledge amounted to theft. There was a dishonest intention of the petitioner as no assistance was taken of the police or any authority in acquiring the letters.
• The Honourable Court also referred to Pepsi Foods Ltd. v. Special Judicial Magistrate. In the present matter, the concerned Courts were to examine whether the very basic ingredients of theft under u/s 380 were being met by the Petitioner or not, while prima facie making out a case against her.
• There was a high probability that any letters coming into the home could have been addressed to the petitioner as well. The post box being located at the entrance, there is a possibility of the letters of petitioner being delivered in the same post box that was located on the ground floor.
• Hence no dishonest intention was established at the preliminary stage. So, a prima facie case could not have been made against the petitioner. Hence, the summon was held as invalid and erroneous. The impugned order was set aside.