Major Grounds For Cancellation of Bail Under Criminal Procedure Code, 1973 With Landmark Judgements

The provisions for cancellation of bail are contained in Sections 437(5) and 439(2) of the Criminal Procedure Code, 1973

Under sub-section (5) of Section 437 of Cr. P.C any Court which has released a person on bail under sub-section (1) or (2) of that section, may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody

Similarly Section 439 empowers High Court or a Court of Session to release on bail any person accused of an offence and who is in custody. Sub-section (2) of the Section 439 provides that a High Court or Court of Session may direct that any person who has been released on bail under Chapter XXXIII of Cr. P.C. be arrested and commit him to custody. 

Therefore, these two sections confer power on Courts for grant of bail and powers have also been conferred for cancellation of bail in appropriate and fit cases.

In V. Chinna Reddy v. N. Vidyasagar Reddy, 1982 Cri LJ 2183 it was observed that  S. 437(5) Cr. P.C. empowers the very Magistrate who has released the person on bail under sub-section (1) or sub-section (2) of S. 437 Cr. P.C. to direct that such person be arrested and committed to custody. Thus, this provision pertains to a Court of Magistrate but not a High Court or a Court of Session

Under sub-section (5) of Section 437 of Cr. P.C  a person who was released on bail under sub-section (1) or (2) of that section may be rearrested if the Court considers it necessary to do. As under S. 167(2) a person who has been released on the ground that he had been in custody for a period of over sixty days is deemed to be released  under the provisions of Chapter XXXIII, his release should be considered as one under S. 437 (1) or (2). Section 437(5) empowers the court to direct that the person so released may be arrested if it considers it necessary to do so. The power of the court to cancel bail if it considers it necessary is preserved in cases where a person has been released on bail under S. 437 (1) or (2) and these provisions are applicable to a person who has been released under S. 167 (2)

Object Underlying Cancellation of Bail :-

In Karan Singh v. State of Rajasthan, 1993 Cri LJ 251 it was observed that the object of Section 437(5), Cr. P.C. is not punitive but to protect the interest of justice and to prevent it from being tampered with in any manner by the accused. The bail granted to an accused can be cancelled if the accused, after his release on bail, tried to tamper with the evidence or hampers the trial or investigation, committing an act of violence or commits the same offence again. The power vested with the Court for cancellation of the bail have to be exercised with care and circumspection. 

The object of sub-section (5) of S. 437 of Cr. P.C. is to enable the Court, on  sufficient materials being placed before it, to cancel the bail granted or to direct that such person be arrested and committed to custody. This sub-section contemplates a situation where a person enlarged on bail has misused the freedom granted or has disobeyed the conditions imposed or has imperiled the smooth course of investigation of has done such acts as in the opinion of the Court are sufficient to cancel the bail already given.

In Surnendra Kumar Patel v. State of Chhattisgarh, 2004 Cri LJ 988 it was observed that the legislature while incorporating the provisions for cancellation of bail was aware that there may be cases in which the accused enlarged on bail may misuse his position after being enlarged on bail, in order to take care of that situation provisions have been incorporated in the Criminal Procedure Code for cancellation of bail, so that the accused should always remain under control and always remain careful that if he will breach any of the conditions of bail imposed upon him while granting bail his bail can be cancelled and he will be put in custody again. At the same time a heavy duty has been cast on the Court that while deciding the cases of cancellation of bail the Court should satisfy its judicial conscience and in order to satisfy the judicial conscience the Court must see whether convincing grounds exits for the cancellation of bail, if these grounds exists only then and then the Court should exercise this power vested in it.

Grounds for Cancellation of Bail :-

In Nityanand Rai vs State Of Bihar & Anr 2005  it was observed that   Consideration of an application for grant of bail stands on a different footing than one for cancellation of  bail. Grounds for cancellation of bail should be those which arose after the grant of bail and should be referable to the conduct of the accused while on bail, such is not the case made out in application for cancellation of bail. 

In Mubarik Khan vs Nasir Khan on 11 November, 1997  It was observed that Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are : interference or attempt to interfere with due course of administration of justice or abuse in any manner. The satisfaction of the Court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justify ing the cancellation of bail. However, bail once grained should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial.

Bail may also be cancelled on the following grounds ( illustrative and not exhaustive) -

1.When the person on bail is found directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer

2. When the person on bail commits similar offence or any heinous offence during the period of bail.

3. When the person on bail creates serious law and order problems in the society and he had become a hazard on the peaceful living of the people.

4. When the High Court found that there was a wrong exercise of judicial discretion to grant the accused bail.

5. When the circumstances were proved that the accused has misused the liberty granted to him, it is sufficient ground to cancel bail.

6. If the life of the accused person on bails itself be in danger.

In Ripudaman Singh v. State of Haryana,171 the Punjab and Haryana High Court, while considering the question as to which material could be accepted for the cancellation of bail by the Session Judge, observed that neither police report made to the District Attorney, nor the application field by the District Attorney, Unsupported by any affidavit, was evidence in the case and the facts stated therein ocould not be accepted as correct

In Mehboob Dawood Shaikh v. State of Maharashtra, (2004)2 SCC it was observed that mere assertion of an alleged threat to witnesses should not be utilized as a ground for cancellation of bail, routinely. Otherwise, there is ample scope for making such allegation to nullify the bail granted. The Court before which such allegations are made should in each case carefully weigh the acceptability of the allegations and pass orders as circumstances warrant in law. Such matters should be dealt with expeditiously so that actual interference with the ordinary and normal  course of justice is nipped in the bud and an irretrievable stage is not reached

In Kanwar Singh Meena vs. State of Rajasthan & Anr. AIR 2013 SC 296

It was observed that the Court is conscious that cancellation of bail is a serious matter. Bail once granted can be cancelled only when there exist very cogent and overwhelming circumstances. It is settled law that parameters for grant of bail and cancellation of bail are different. However, if the Trial Court while granting bail acts on irrelevant materials, bail can be cancelled.

A bail cannot be cancelled merely on the basis of allegations that the accused persons are misusing the privilege of bail when there is no other convincing material on the record for the Court to come to that conclusion

Instances Where Bail Was Cancelled:-

1. In Puran vs. Rambilas & Anr. the Supreme Court held that where in a perverse order granting bail is passed in a heinous crime of the nature of causing dowry death ignoring material and evidence on record and that too without giving any reasons, bail can be cancelled. Such an order would be against the principles of law.

2. In Ohana Kuttan Pillai Vs. State of Kerala.2004 CrLJ 3453 (3457)  in case against the accused under sections 302/307/376, 273, 201, 120B for supplying spirit used in the  manufacture of illicit arrack, causing the death of seven persons and loss of eye-sight of seven others, bail was refused.

3. In Vijay Kumar Mishra Vs. State of U.P. 2003 All LJ 1634: (2003)CrLJ 3429 (3430) (All) accused MLA facing prosecution for screening under sections 302, 307, 134, 147, 148, 149 IPC involved in 32 cases including murder and rape, the bail refused. 

4.In Bhagirathi Adiwasi Vs. State, 2004 ACC 197 (All) the accused charged for offences under sections 498A, 306, 201, alleged to have physically tortured the victim who committed suicide on account of non-fulfillment of dowry demand, was refused to bail.

5. In Satya Narayan Pillai vs. State of Chattisgarh,(2003) 2 All In Case 681: 2003 CrLJ 2899 (2900) Chatt. where accused was charged under section 376 IPC injuries were found on the person of the prosecutrix the accused had demanded money from the husband of the  prosecutrix for screening the offender in a murder case, bail was refused.

Thus power to cancel bail and take back an accused in custody who has been enlarged on bail, though has to the exercised with care and circumspection, yet the power, though extraordinary one, is meant to be exercised in appropriate cases. Refusal to exercise the wholesome power in cases, few though they may be, will reduce it to a dead letter and will suffer the Courts to be silent spectators to the subversion of the judicial process

References :-

1.https://www.google.co.in/url?sa=t&source=web&rct=j&url=http://shodhganga.inflibnet.ac.in/bitstream/10603/7790/11/11_chapter%25205.pdf&ved=0ahUKEwjFhoqov97XAhUKqY8KHSzyA58QFghnMAo&usg=AOvVaw3OLGKMwYST6_CZrUoOUdCV

2.http://www.shareyouressays.com/knowledge/9-important-grounds-under-which-a-bail-may-be-cancelled/119362 

3.R.V.Kelkar,Lectures on Criminal Procedure, sixth edition

4.Ratanlal & Dhirajlal Criminal Procedure Code 

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Can A Woman Who Is Not A SC/ST By Birth, Get SC/ST Status After Marrying A SC/ST Man?

The Hon’ble Acting Chief Justice Mr. Justice Sanjay Karol, Justice Ajay Mohan Goel, of the Himachal Pradesh High Court ( CWP No.3310 of 2016 Vijaylakshmi Vs State of H.P. & others) reiterated that " a person who does not belongs to a Scheduled Tribe or a Scheduled Caste category by birth, simply by virtue of marrying a person belonging thereto cannot gain the status of that particular caste or tribe"

In the present case the petitioner was married to one Shri Prem Chand, resident of Village Gusal, Panchayat Holi, District Chamba in the year 1972, belonging to Gaddi Rajput Tribe. By virtue of her being married to a person belonging to a Scheduled Tribe category, she applied to the authorities for the issuance of a Scheduled Tribe certificate,which was issued to her on 20.03.1985 by the Executive Magistrate, Sub Tehsil Holi, District Chamba.

On the strength of the said certificate, petitioner joined as a Primary Teacher under the Kendriya Vidyalaya Sangathan in the year 1986. In the year 2011, i.e. after putting in more than 25 years of service, she was chargesheeted vide memorandum dated 28.02.2011 to the effect that she had gained appointment by submitting a false caste certificate against the post reserved for a Scheduled Tribe category.

Petitioner denied the allegations by maintaining that the Scheduled Tribe certificate was rightly issued in her favour by the authorities concerned. In the meanwhile,on 23.12.2014, petitioner received a  communication from the office of Naib Tehsildar, Sub Tehsil Holi, calling her for verification/cancellation of the said Scheduled Tribe certificate issued to her. She responded to the same explaining that the certificate stands rightly issued in her favour by the authorities after carrying out all necessary verifications. 

Despite this, vide order dated 01.01.2015, her Scheduled Tribe certificate was cancelled by the authorities on the ground that by birth she did not belong to a Scheduled Tribe category, for she hailed from an upper caste family in Roorkee (U.P.), therefore, issuance of Scheduled Tribe certificate in her favour was illegal. In view of the tribal certificate issued to the petitioner being declared as illegal in the eyes of law, she was dismissed from service on 18.2.2015. Statutory appeal filed by her also stands rejected. 

Feeling aggrieved, petitioner has filed the present petition.

While giving judgement the Court found it relevant to quote Article 366 (24) & 366 (25) of the Constitution of India which defines the terms “Scheduled Castes” and “Scheduled Tribes”. It reads as under:

“(24) “Scheduled Castes” means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under article 341 to be Scheduled Castes for the purposes of this Constitution.”

“(25) “Scheduled Tribes” means such tribes or tribal communicates or parts of or groups within such tribes or tribal communities as are deemed under article 342 to be Scheduled Tribes for the purposes of this Constitution.

The Court observed that

" It is the mandate of Article 16 that there shall be equality of opportunity to all citizens in matters relating to employment or appointment to any office under the State."

" However, the Article itself carves out certain exceptions and one such being to make provisions for reservation for appointment or posts in favour of any backward class of citizens, which, in the opinion of the State, is not adequately represented in the services under the State."

The Court found that

" The Apex Court in Nityanand Sharma & another v. State of Bihar & others, (1996) 3 SCC 576 , after considering its earlier decision in Indra Sawhney & others v. Union of India & others, 1992 Supp (3) SCC 217, reiterated that reservation under Article 16(4) is not made in favour of a "caste" but a “Backward Class”. 

In the very same decision, the Court framed the following question for itself:

“Whether a candidate, by marriage, 
adoption or obtaining a false certificate of social status would be entitled to an identification as such member of the class for appointment to a post reserved under Article 16(4) or for an admission in an educational institution under Article 15(4)?”

And answered the same in the following terms:

“It is seen that Dalits and Tribes suffered social and economic disabilities recognised by Articles 17 and 15(2). Consequently, they became socially, culturally and educationally backward; the OBCs also suffered social and educational backwardness. The object of reservation is to remove these handicaps, disadvantages, sufferings and restrictions to which 
the members of the Dalits or Tribes or OBCs were subjected and was sought to bring them in the mainstream of the nation's life by providing them opportunities and facilities

A candidate who had the advantageous start in life being born in Forward Caste and had march of advantageous life but is transplanted in Backward Caste by adoption or marriage or conversion, does not become eligible to the benefit of reservation either under Article 15(4) or 16(4), as the case may be Acquisition of the status of Scheduled Caste etc. by voluntary mobility into these categories would play fraud on the Constitution, and would frustrate the benign constitutional policy under Articles 15(4) and 16(4) of the Constitution.

The Court also found that

" The Apex Court in Anjan Kumar v. Union of India & others, (2006) 3 SCC 257 reiterated that the object of Articles 341, 342, 15 (4) , 16 (4) and 16 (4A) is to provide preferential treatment for the Scheduled Castes and Scheduled Tribes having regard to the economic and educational backwardness and other disabilities wherefrom they suffer. 

So also considering the typical characteristic of the tribal including a common name, a contiguous Territory, a relatively uniform culture, simplistic way of life and a tradition of common descent, the transplantation of the outsiders as members of the tribe or community may dilute their way of life apart from such persons do not suffer any disabilities. 

Therefore, the condition precedent for a person to be brought within the purview of the Constitution (Scheduled Tribes) Order, 1950, one must belong to a tribe and suffer disabilities wherefrom they belong. "

Then the Court observed that

Therefore, as per the law as it stands today, it is very clear and categorical that a person who does not belongs to a Scheduled Tribe or a Scheduled Caste category by birth, simply by virtue of marrying a person belonging thereto cannot gain the status of that particular caste or tribe.

Based on the above observation and findings held that

" Therefore, in view of the above discussion, as admittedly by birth petitioner did not belong to a Scheduled Tribe category, she could not have gained status thereof, by 

simply marrying a person belonging to such category, we do not find any illegality with the action of the authorities whereby Scheduled Tribe certificate issued in her favour was cancelled and employment obtained by her on the strength of said certificate was terminated. and accordingly dismissed the application of the petitioner."

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Considerations For Granting Bail In Case of Non-Bailable Offences With Landmark Judgements

Section 2 (a) of Code of Criminal Procedure 1973 provides that “Bailable offence” means an offence which is shown as bailable in the first schedule or which is made by any other law for the time being in force and “non-bailable offence” means any other offence.

By and large, offences punishable with imprisonment for not less than
three years are taken as serious offences and are made non-bailable.

Section 437 of the Criminal Procedure code 1973 provides when bail may be taken in case of non-bailable offence

Section 437 gives the Court or a police officer power to release an accused on bail in a non-bailable case, unless there appear reasonable grounds that the accused has been guilty of an offence punishable with death or with imprisonment for life.

But
(1) a person under the age of sixteen years
(2) a woman; or
(3) a sick or infirm person may be released on bail even if the offence charged is punishable with death or imprisonment for life.

Where a person is charged with a non-bailable offence, but it appears in the course of the trial that he is not guilty of such offence, he can be immediately released on bail pending further inquiry. The same may be done after the conclusion of a trial and before judgment is pronounced, if the person is believed not to be guilty of a non- bailable offence

In State of Rajasthan Vs. Balchand, (AIR 1977 SC 2447) Supreme Court observed that " The basic rule may perhaps be tersely put as bail not jail except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating utter troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from the Court.Grant of bail is the rule and its refusal is an exception. But while granting it the Court has to be satisfied that the order to be passed is in the interest of justice."

Unlike a bailable offence where bail is a mater of right under S. 436 Cr.P.C., grant of bail for a non-bailable offence under S. 437 Cr. P.C. is a matter of discretion

Bail is a mater of right if the offence is bailable. In the case of a non- bailable offence, bail is a matter of judicial discretion. Bail shall not be granted by
the Magistrate if the offence is punishable with death or imprisonment for life if he is of the view that there appear reasonable grounds for believing that the person concerned accused of or suspected of the commission of the offence has been guilty of the offence, provided that he may, in his discretion that he may, in his discretion, grant bail to a woman or a minor under the age of sixteen years or a sick or infirm person. In a case involving a non-bailable offence, a Court may impose reasonable conditions besides fixing of the bail amount for the attendance of the accused.

However the court dealing with the application for bail is required to exercise its discretion in a judicious manner and not as a mater of course.

In Afsar Khan v. State, (1992 Cri LJ 1676) it was held that while the Court exercises its discretion, whether it is under S. 437 or 438 or 439, Cr. P.C., it shall exercise the same properly and not in an arbitrary manner. The discretion exercised shall appear a just and reasonable one. It is true that no norms are prescribed to exercise the discretion. Merely because, norms are not prescribed for the Court to exercise discretion under Ss. 437, 438 or 439 Cr.P.C. that does not mean the discretion shall be left to the whims of the Court.

Certain relevant considerations for grant of bail, as stated by the Supreme Court in Ram Govind Upadhyay v. Sudarshan Singh, (AIR 2002 SC 1475) , are as under:

(i) While granting bail the Court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.

(ii) Reasonable apprehensions of the witnesses being tampered with or the

apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.

(iii) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the Court in support of the charge.

(iv) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of thee being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.

The basic question which must be present to the mind of the Court while considering the question of bail is whether the grant of bail would thwart the course of justice or would it further the course of justice. There cannot indeed by any inflexible rule governing the grant of bail. Each case has to be decided on its own facts. However, certain guidelines have been formulated by the Courts from time to time, which the Courts generally take into consideration while considering the question of grant of refusal of bail.

In Karan Dass v. State of H.P., (1995 Cri LJ 2995) it was held that while considering the question of grant or refusal of bail, the Courts generally take into consideration:

(a) the enormity of the charge;
(b) the nature of the accusation;
(c) the severity of the punishment which the conviction will entail;
(d) the nature of the evidence in support of the accusation;
(e) the danger of the applicant’s

absconding if he is released on bail;
(f) the danger of witnesses being tampered with;

(g) the protracted nature of the trail;
(h) opportunity to the applicant for

preparation of his defence and access to his counsel; and
(i) the health, age and sex of the accused.

The aforesaid list of circumstances is not exhaustive but there are other factors also which in peculiar circumstances of the case are to be considered by the Court

In Ram Kumar Tyagi v. State, (1995 Cri LJ 1877) it was observed that Out of several considerations which are to be weighed for the purpose of grant or refusal of bail two are uppermost.
First, whether the accused will be available for trail and not flee from justice.
Second, that he will not influence
witnesses and tamper with evidence.

In Sis Rani v. State, (1998 Cri LJ 1877) it was observed that the two paramount considerations would be very decisive factors in exercise the judicial discretion of granting or refusing bail; they being likelihood of accused fleeing from justice and his tampering with prosecution evidence, relating to ensuring fair trial of the case. It is essential that due and proper attention should be bestowed on these two factors.

References :-

https://www.google.co.in/url?sa=t&source=web&rct=j&url=http://shodhganga.inflibnet.ac.in/bitstream/10603/7790/11/11_chapter%25205.pdf&ved=0ahUKEwi_4sLAbPXAhXCqI8KHe6qDYAQFggsMAE&usg=AOvVaw3OLGKMwYST6_CZrUoOUdCV
R.V.Kelkar,Lectures on Criminal Procedure, sixth edition
Ratanlal & Dhirajlal Criminal Procedure Code

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Right To Property is Not Only A Constitutional Right, But Also A Human Right, That No Person Can Be Deprived Save and Except By and In Accordance With Law - Chhattisgarh High Court Order

The Chhattisgarh High Court recently (WPC No.306 of 2017 Narayan Prasad Vs State of Chhattisgarh) held that right to property is not only a constitutional right, but also a human right, that no person can be deprived save and except by and in accordance with law. 

In the present case the petitioners are brothers and owners of a land in Bilaspur which is included within the area known as Arpa Special Area Development Authority, Bilaspur.They made an application before Arpa Special Area Development Authority, Bilaspur (respondent No.2) for 'No Objection Certificate' for sale of their lands which has been rejected by respondent No.2 by the impugned order dated 4.2.2016.

Feeling aggrieved against that order, the present writ petition under Article 226 of the Constitution of India has been filed by the petitioners herein stating inter-alia that right to property is a constitutional right as envisaged under Article 300-A of the Constitution of India and respondent No.2 has no authority and jurisdiction to restrict transfer of land by the petitioners and therefore, the impugned order rejecting their application for 'No Objection Certificate, is unsustainable and bad in law and deserves to be set aside.

On the other hand, the learned counsel appearing for Arpa Development Authority, oppose the writ petition and submit that the petitioners' land has been included in development of Arpa (Sada) Area and therefore, the petitioners' lands are required and needed for the said scheme and the petitioners have no right and authority to transfer the said land to other person without valid 'No Objection Certificate' granted by respondent No.2.

Hearing both the parties the Court found it relevant to quote Article 300-A of the Constitution of India which reads as under:-

“300A. Persons not to be deprived of property save by authority of law.-No person shall be deprived of his property save by authority of law.” and observed

" Thus, right to property is a constitutional right, though right to property is no longer a fundamental right and constitutional protection continues inasmuch as without authority of law, a person cannot be deprived of his property. Right to property is a human right as well as a constitutional right (Indian Handcrafts Emporium and others Vs.Union of India and others (2003) 7 SCC 589). "

" Thus, the right to acquire, hold and dispose of the property has ceased to be a fundamental right under the Constitution of India, but it continues to be a legal or constitutional right that no person can be deprived of his property save and except by and in accordance with law."

The Court came to a finding that

" Arpa Development Authority,  has been constituted under Section 16 of the Chhattisgarh Nagar Tatha Gram Nivesh Adhiniyam, 1973 by notification dated 25.10.2010 and Arpa Planning Area [Development Plan – 2033] has been published, but under Section 50(7) of the Act of 1973 town development scheme has not been yet notified and as such, no town planning scheme is in existence and therefore, Section 53 of the Act of 1973 is not at all attracted to the facts of the present case as preparation of town development scheme is condition precedent for applicability of Section 53 of the Act of 1973."

In deciding the present case Justice Sanjay K. Agrawal found it relevant to refer several judgements of the Supreme Court

The Supreme Court in the matter of Chairman, Indore Vikas Pradhikaran Vs. Pure Industrial Coke & Chemicals Ltd. and others(2007 8 SCC 705) has held that right of property is now considered to be not only a constitutional right but also a human as well as a legal right.

The Supreme Court in the matter of DLF Qutab Enclave Complex Educational Charitable Trust Vs. State of Haryana and others (2003) 5 SCC 622) has held that right to transfer the land is incidental to right of ownership of the land and cannot be taken away without authority of law.

The Supreme Court in the matter of Jilubhai Nanbhai Kachar and others Vs. State of Gujarat and another (1995 Supp (1) SCC 596) has held that right to property under Article 300-A of the Constitution of India is subject to State's restraints and regulation.

In the matter of Bishambhar Dayal Chandra Mohan and others Vs. State of Uttar Pradesh and others (1982) 1 SCC 39) the Supreme Court has held that the “law” within the meaning of Article 300-A of the Constitution of India would mean the law enacted by competent legislature

The word “law” under Article 300-A of the Constitution of India would mean a validly enacted law meaning thereby a just, fair and reasonable law ( Delhi Airtech Services (P) Ltd. Vs. State of U.P (2011) 7 SCC 354 )

Then the Court observed that

" Thus, in the light of principles of law laid down by the Supreme Court in the aforesaid judgments (supra), if the facts of the present case are examined, it is quite vivid that town development scheme has not been notified at present under Section 50 (7) of the Act of 1973, therefore, no restriction can be made to the owner's right to transfer the land under Section 53 of the Act of 1973."

" Likewise, there is no law enacted by competent legislature restraining the right of owner of land to transfer his land and as such, right to transfer the land can be restricted only by a statute enacted by competent legislature. In absence of law prohibiting transfer, no restriction to transfer the land can be directed by Arpa Development Authority,  as right to property under Article 300-A of the Constitution of India is not only constitutional or legal right, but it is also human right and a person can be deprived of that right only by authority of law."

And held that

" As a fallout and consequence of the above-stated discussion, the impugned order dated 4.2.2016 passed by Arpa Special Area

Development Tribunal, Bilaspur refusing to grant 'No Objection Certificate' to the petitioners is hereby quashed "

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A Son Should Be Evicted From His Father’s House If He Denied To Pay Maintenance As Agreed By Him - Delhi High Court Order

. 


Upholding the decision of the Maintenance Tribunal the Delhi High Court (W.P.(C) 866/2016 and CM Nos. 23434/2017,   17173/2017 SHADAB KHAIRI AND ANR Vs THE STATE (GOVT OF NCT OF DELHI) AND ORS)  recently held that a son should be evicted from his father’s house if he denied to pay maintenance as agreed by him

In the present case one Mohammud Aftab Khairi (68 years, a senior citizen), father of the petitioners ( Respondent) is the owner and resident of the properties bearing Nos.3616-3617, Katra Deena Beg, Lal Kuan, Delhi-110006. The said properties are contiguous. He has three sons namely, Shahab Khairi, Shadab Khairi (petitioner no.1) and Shahnawaz Khairi (petitioner no.2). He and his family occupy the first floor of the properties. The second and third floor is occupied by his three sons.

Respondent no.3(father) filed a complaint before the Maintenance Tribunal, inter alia, alleging that he had spent a considerable amount on renovating the residential premises and had provided separate residential  accommodation to his three sons on the second and the third floors. He claimed that his sons had agreed to pay a monthly sum of ₹15,000/- for his maintenance and additional ₹5,000/- per month to his wife (their mother) for day-to-day requirements. Respondent No.3 complained that despite a verbal agreement, his three sons (who were arrayed as respondents before the Maintenance Tribunal) had failed to live up to their commitment; they had paid the agreed amount to their mother for the month of March 2012 but had, thereafter, failed to provide any further assistance.

The petitioners (respondents therein) had filed a statement contesting the complaint before Tribunal and had, inter alia, alleged that the properties in question were ancestral properties and therefore they had the right to reside in it as co-owners.

The Maintenance Tribunal examined the complaint and passed the impugned order directing as under:

 “ 1. Respondent No.1 shall continue to stay in property No. 3617 on the (second floor) and shall sincerely strive to support the complainant in his work and other responsibilities towards the family of the complainant.

2. Respondent No. l shall look after and provide all the medical care to the complainant‟s wife or any other member of the family, in time of need.

3. Respondent No. l shall also pay a sum of Rs.5000/- per month to the complainant.

4. Respondent No.2&3 shall peacefully vacate the respective portions on third floor of the property bearing No.3617 Katra Deena Beg, Lal Kuan, Delhi, occupied by them within 3 weeks from the date of receiving of this order and make their own arrangements to shift within specified time.

5. Respondent No. 2&3 are further directed that they shall refrain from indulging in any argument, making comments, threatening or causing any harm to the complainants in particular and all the other members of the family including Respondent No. 1.

6. That SHO PS Hauz Qazi is directed to depute beat staff for regular visits to ensure that life and property of the senior citizen parent is safe and secure. The SHO is further directed to ensure implementation of the above said direction in true letter and spirit and put the complainant in possession of the property. Necessary compliance report be sent to the tribunal.”

Then the petitioners (sons) filed the present appeal before the Delhi High Court contending that the order passed by the Maintenance Tribunal directing that the petitioners be evicted from the property in question is without jurisdiction.

The Court observed that

" The aforesaid contention is unmerited. This issue is squarely covered by a decision of this Court in Sunny Paul & Anr. v. State NCT of Delhi & Ors.:(W.P. (C) No.10463/2015) 2017 SCC Online Del 7451, wherein this Court had concluded as under:

“73. Keeping in view the aforesaid conclusions, this Court is of the view that the Act, 2007, amongst other remedies, provides for eviction of adult children in cases of parental abuse–like in the present case. Accordingly, the present writ petition and application are dismissed and the concerned SDM and SHO, Police Station Civil Lines, are directed to forthwith comply with the impugned order dated 1st October, 2015 passed by the Maintenance Tribunal, Central District, Delhi.”

The Court also observed that

" This Court had noticed in its decision that Section 22 (2) of the Act required the State Government to provide a comprehensive action plan for protecting the life and property of senior citizens. However, as on the date when the said petition (W.P. (C) No.10463/2015) was filed, the Government of NCT of Delhi had not framed any rules providing for eviction of unauthorized

occupants and had not prepared a comprehensive action plan as required. under Section 22 (2) of the Act. However, thereafter, the Government of NCT has framed the Delhi Maintenance and Welfare of Senior Citizens  (Amendment) Rules 2016, which expressly empower the Deputy Commissioner / District Magistrate to pass eviction orders from properties belonging to Senior Citizens. "

And upholding the decision of The Maintenance Tribunal the Delhi High Court held that

" The petition is accordingly dismissed. All applications stands disposed of. "

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