Mutation of property

Mutation is the recording of a transfer of title of a property from one person to another in the revenue records. The documentation procedure to be followed and the fee payable vary from State to State. The mutation in the municipal records is for the purpose of payment of property tax, and it does not mean a legal title for the person in whose name the property has been mutated in the municipal records.

An application to the tahsildar on a plain paper, along with a non-judicial stamp of relevant value, has to be made.
Details to be furnished with application:

•  Area in which the right has been acquired
•  Description of the right acquired
•  Name, parent's name, and address of the person from whom the right has been acquired
•  Manner in which the right has been acquired
•  Name, parent's name, and address of the person who has acquired the right
•  Date on which the right was acquired
•  Copy of document on the basis of which the mutation is sought - sale deed, Will etc

A proclamation is issued inviting objections to the proposed mutation and specifying the date, not less than 15 days from the date of the proclamation, up to which any objection to the mutation will be entertained. The Patwari submits his report in the prescribed format. The statements of the parties are recorded. The contents of the documents are matched with the recorded statements. In case no objections against the proposed mutation are received, it is sanctioned.
Any party aggrieved by an order of mutation can file an appeal before the Additional Collector (or the Deputy Commissioner) concerned within 30 days of the order.
Documents required for mutation:
In case of sale:
>> Copy of sale deed
>> Application for mutation with court fee stamp affixed on it
>> Indemnity bond on stamp paper of requisite value
>> Affidavit on stamp paper of requisite value
>> Receipt of up-to-date property tax payment
In case of Will:
>> Death certificate
>> Copy of Will or Succession Certificate
>> Indemnity bond on stamp paper of requisite value
>> Affidavit on stamp paper of requisite value attested my a Notary
>> Receipt of up-to-date property tax payment In case of Power of Attorney:
>> Copy of Power of Attorney.
>> Copy of Will
>> Receipt for payment registered with a sub-registrar
>> Application for mutation with court fee stamp affixed on it

>> Indemnity bond on stamp paper of requisite value
>> Affidavit on stamp paper of requisite value
>> Receipt of up-to-date property tax payment
Sometimes, an indemnity bond giving an undertaking that the executant indemnifies the municipal corporation in the event of a dispute arising from the mutation made upon his application is sought. A rough site plan showing the different portions of the building, with details of those occupying these portions, may also need to be furnished.
The prevalent rate of transfer duty on the consideration amount and the mutation fee should be paid. If an entire building or plot has been sold, the mutation may be allowed on payment of up-to-date dues. In case of sale through an agreement to sell, it is done on payment of transfer duty on the prevalent rates.

Marbury v. Madison (1803) established the concept of "Judicial Review"

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. — Chief Justice John Marshall

At the end of President John Adams’ term, his Secretary of State failed to deliver documents commissioning William Marbury as Justice of the Peace in the District of Columbia.  Once President Thomas Jefferson was sworn in, in order to keep members of the opposing political party from taking office, he told James Madison, his Secretary of State, to not deliver the documents to Marbury.  Marbury then sued James Madison asking the Supreme Court to issue a writ requiring him to deliver the documents necessary to officially make Marbury Justice of the Peace. The Marbury v. Madison decision resulted in establishment of the concept of judicial review.

Summary of the Decision

 

The Court unanimously decided not to require Madison to deliver the commission to Marbury.  Chief Justice Marshall understood the danger that this case posed to the power of the Supreme Court.  Because Madison was President Jefferson’s secretary of state and Jefferson was head of the Democratic Party while Chief Justice Marshall and Marbury were Federalists, President Jefferson was almost certain to direct Madison to refuse to deliver the commission to Marbury.  If the Court required Madison to deliver the commission and Madison refused, the Court had no power to force him to comply, and, therefore the Court would look weak.  If the Court did not act, it would look like the justices made their decision out of the fear that Madison would not obey their decision. 

The justices struck a middle ground between these alternatives in their opinion, written by Chief Justice Marshall.  The Court ruled that Marbury was entitled to his commission, but that according to the Constitution, the Court did not have the authority to require Madison to deliver the commission to Marbury in this case.  They found that the Judiciary Act of 1789 conflicted with the Constitution because it gave the Supreme Court more authority than it was given under the Constitution.  The dispute centered around the difference between the Supreme Court’s original jurisdiction and its appellate jurisdiction.  If the Court has original jurisdiction over a case, it means that the case can go directly to the Supreme Court and the justices are the first ones to decide the case.  If the Court has appellate jurisdiction, however, the case must first be argued and decided by judges in the lower courts.  Only then can it be appealed to the Supreme Court, where the justices decide whether the rulings of the lower courts were correct.  Marbury brought his lawsuit under the Court’s original jurisdiction, but the justices ruled that it would be an improper exercise of the Court’s original jurisdiction to issue the writ of mandamus in this case. 

The Judiciary Act of 1789 authorized the Supreme Court to “issue writs of mandamus … to persons holding office under the authority of the United States.”  A writ of mandamus is a command by a superior court to a public official or lower court to perform a special duty.  The Court said this law attempted to give the Court the authority to issue a writ of mandamus, an exercise of its original jurisdiction, to Secretary of State Madison.  However, Article III, section 2, clause 2 of the Constitution, as the Court read it, authorizes the Supreme Court to exercise original jurisdiction only in cases involving “ambassadors, other public ministers and consuls, and those [cases] in which a state shall be a party.  In all other cases, the Supreme Court shall have appellate jurisdiction.”  The dispute between Marbury and Madison did not involve ambassadors, public ministers, consuls, or states.  Therefore, according to the Constitution, the Supreme Court did not have the authority to exercise its original jurisdiction in this case.  Thus the Judiciary Act of 1789 and the Constitution were in conflict with each other.

Declaring the Constitution “superior, paramount law,” the Supreme Court ruled that when ordinary laws conflict with the Constitution, they must be struck down.  Furthermore, it is the job of judges, including the justices of the Supreme Court, to interpret laws and determine when they conflict with the Constitution.  According to the Court, the Constitution gives the judicial branch the power to strike down laws passed by Congress, the legislative branch.  This is the principle of judicial review.  Thus, it has been recognized since this decision that it is “emphatically the province and duty of the judicial department to say what the law is.”

Through this decision, Chief Justice Marshall established the judicial branch as an equal partner with the executive and legislative branches within the developing system of government.  By refusing to require Madison and Jefferson to deliver the commission to Marbury, he did not give Madison the opportunity to disobey the Court, making it look weak.  And, by declaring the Court’s power through the principle of judicial review, he made it clear that the justices did not make their decision out of fear.  Instead, he announced that the Constitution is the supreme law of the land, and established the Supreme Court as the final authority for interpreting it.

On this date

In 1795, the 11th Amendment to the U.S. Constitution, dealing with states' sovereign immunity, was ratified.

In 1857, a French court acquitted author Gustave Flaubert of obscenity for his serialized novel "Madame Bovary."

In 1936, President Franklin D. Roosevelt authorized a flag for the office of the vice president.

 In 1962, President John F. Kennedy imposed a full trade embargo on Cuba.

SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT

SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT

History:

Earlier to 1988 the dishonour of cheque was only a civil liability. But the amendment introduced by Amendment Act No.66/1988 which was published in the gazette of India part-II, dated 19.12.1988, introduced Section 138 and 142 of the Negotiable Instruments Act which made it a criminal offence. This amendment was a new offence in the commercial filed, it was brought out of necessity in order to bring sanctity to the common business transactions

What amounts to an offence u/s.138 of Negotiable Instrument Act:

Section 138 reads as follows

“….138. Dishonour of cheque for insufficiency, etc., of funds in the accounts
Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both:

PROVIDED that nothing contained in this section shall apply unless-

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier.

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

Explanation: For the purpose of this section, "debt or other liability" means a legally enforceable debt or other liability.”

Thus Section 138 of N.I.Act, states that when a person issues a cheque to be encashed and the cheque so issued is issued towards payment of a ‘debt’ or liability and it is returned unpaid for want of funds, the person issuing such a cheque shall be deemed to have committed an offence. Section 138 presupposes three conditions for prosecution of an offence they are:

a. Cheque shall be presented for payment within six months from the date of issue or before expiry of its validity.

b. The holder shall issue notice demanding payment in writing to the drawer with in one month of the receipt of information of the bounced cheque, and

c. The drawer inspite of the demand notice fails to make payment within one month of the receipt of the notice.

If the above three conditions are satisfied the holder in due course gets the cause of action to launch prosecution against the drawer of the bounced cheque.

How should the complaint for dishonour of cheque be lodged for the offence punishable u/s.138 of the Negotiable Instrument Act?

Sec.142 of the Act envisages the method of lodging the complaint for the offence punishable u/s.138 of the Negotiable Instrument Act.

Cognizance of offences:

As per this Section notwithstanding anything contained in the Code of Criminal Procedure:

a. no court shall take cognizance of any offence punishable u/s.138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque,

b. such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Sec.138,

[Provided that the cognizance of the complaint may be taken by the court after the prescribed period, if the complainant satisfies the court that he had sufficient cause for not making a complaint within such period]

c. no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try any offence punishable u/s.138.

The cases filed under sec.138 of the Negotiable Instrument Act are tried summarily. Thus for an offence to be made out and to set the criminal law in motion for the offence punishable u/s.138 of the Negotiable Instrument Act One should lodge a complaint in writing made within 30 days from the date of cause of action by the payee or holder in due course has to file a complaint before the Jurisdictional court u/s.200 of Cr.P.C.. When the complaint is presented for the said offence the court has to follow the procedure prescribed u/s.200 of Cr.P.C[i]. Which reads as follows

If the complaint so filed is made within limitation(time) and preconditions prescribed u/s.138 are complied with, court has to take cognizance of the offence and record sworn statement, then process shall be issued to the accused. The Magistrate shall not refer the complaint to the police for investigation u/s.156(3) of Cr.P.C. as the offence u/s.138 of the Negotiable Instrument Act is non-cognizable offence[ii].

Presumption regarding the offence u/s.138 of Negotiable Instrument Act in favour of holder:

When a complaint is file under Section 138 the court presumes that unless contrary is proved, the holder of cheque received the notice and failed to make necessary payment as referred to in Sec.138 for the discharge in whole or in part any legally valid ‘debt’ or ‘liability’. So, there is presumption that

PREMATURE COMPLAINT:

The Supreme Court[iii] has held that even though a complaint is presented prematurely, the Court need not dismiss it and on the other hand it should wait till maturity or it may return the complaint to the complainant for presenting it later. The same matter again arose in a different situation before the Hon’ble High Court of karnataka[iv] . In that case, after trial, the Magistrate dismissed the complaint on the ground that it was premature and acquitted the accused. Before the Hon’ble High Court, relying upon Narasingh Das Tapadia’s case, it was contended that the Magistrate was bound to return the complaint when it was premature. But the Hon’ble High Court did not accept that contention and held that it was not mandatory for the Magistrate to return the complaint on the ground that it was premature and in that situation he had no alternative except to acquit the accused.

HOW MANY TIMES CHEQUE COULD BE PRESENTED?

A Division bench of our Hon’ble High Court of Karnataka[v] has held that till the expiry of the period of validity i.e.., 6 months a cheque could be presented any number of times, but, however, successive notices for purposes of determining the cause of action are not contemplated and therefore the complaint will have to be filed within one month from the date on which the cause of action arises. Similar is the view taken by the Supreme Court in the decision reported in AIR 1998 SC 3043 (SADANANDAN BHADRAN VS. MADHAVAN SUNIL KUMAR). In that case it is held that though a cheque can be presented any number of times during the period of its validity, the cause of action to file the complaint arises only once. In 2001 AIR SCW 2567=AIR 2001 SC 2825 (M/S. UNIPLAS INDIA LTD., VS. STATE (Govt. of NCT of Delhi), on facts the decision in ILR 1998 sC 3043 has been distinguished and it has been held that if within 15 days, notice of dishonour is not issued by the complainant, then he can create a fresh cause of action by presenting the cheque again.

NOTICE OF DISHONOUR:

It is held[vi] by courts that if the notice is not signed by the Advocate, it cannot be said that it is no notice. Further it has also been held that what is required under Sec.138(b) is that the notice of dishonour of cheque should be given within 15 days from the date of receipt of information from the bank and it is not necessary that the notice also should be served on the accused within the said 15 days. The Supreme Court in (SUMAN SETHI VS. AJAY K. CHURIWAL)[vii] it is held that if in the notice sent under Sec.138(b) in addition to the cheque amount any other sum by way of interest, cost etc., is also claimed, it cannot be said that notice is not a valid one. Following this decision, Karnataka Hon’ble High Court[viii] has taken a similar view. However, High Court held that a combined notice issued on behalf of the complainants in two different cases, though the complainants are related to each other as husband and wife, in respect of separate cheques is not valid if in those notices the claim has been combined. In 2001 AIR SCW 2352 (UNITED CREDIT LTD., VS. ASO SALES INDIA AND OTHERS) the decision in Suman Sethi’s case referred to above has been followed and it has been again held that merely because in addition to the cheque amount, interest and costs are also claimed in the notice, the same is not invalid.

In the decision reported in 1997 (3) KLJ 271 (M/s. SAVITHA ENTERPRISES VS. K.RAVINDRA NATH SHETTY) the Hon’ble High Court has held that what is required is that a complaint is to be presented within 30 days from the date on which the cause of action arises and if at the request of the drawee the cheque is presented again and it is bounced, it cannot be contended by the accused that a fresh notice should have been issued when the cheque was dishonoured again.

In ILR 1998 Kar. 1841 (SRIDHAR M.A. VS. METALLOY N. STEEL CORPORATION) and 1999 Cri.L.J. 4606 (K.BHASKARAN VS. VAIDHYAN BALAN) the Supreme Court was concerned with the question as to when the service of notice could be inferred and it was held that if there is an endorsement like “not available in the house”, “house locked”, “shop closed”, “un claimed”, the service should be deemed to have been effected. These decisions of the Supreme Court have been recently followed by our Hon’ble High Court in the decision reported in ILR 2000 Kar. 1255 (A. SATHYANARAYANA VS. C. NAGARAJA) in which case the notice of dishonour was returned with an endorsement that the accused was not found on all the seven dates on which it was taken for service.

POWERS AND LIABILITIES OF POWER OF ATTORNEY HOLDER:

In ILR 1997 Kar. 1747 (P.A. VERGHEES VS. M/S. CAMPION BUSINESS ASSOCIATES PVT. LTD.,) it was held that a complaint presented by a power of attorney holder is valid. In ILR 2001 Kar. 2833 (S.RAMESH VS. BASANTH KUMAR PATIL) and in ILR 2001 Kant. 3909 (M.RAMAIAH VS. M/S. RAMANIKA SILKS PVT. LTD.,) it has been held by our Hon’ble High Court that a power of attorney holder of the payee or holder in due course can present a complaint under Sec.138 of the Act.

In ILR 1999 Kar. 1655 (G.M. GURAPPA REEDY VS. M/S. A.S. FINANCE & INVESTMENTS) it was held that even if a cheque is given by a person as power of attorney holder of another or for the liability of another, he is still liable to be prosecuted.

CAN THE DIRECTORS OF A COMPANY BE PROSECUTED UNDER SECTION 138 FOR DISHONOUR OF CHEQUE:

The question whether it is permissible to prosecute all the directors of the company for an offence under Sec 138 of the N.I. Act was considered by our Hon’ble High Court in the decision reported in ILR 1997 Kar. 3239 = 1998 (2) KLJ 337 (NUCOR WIRES LTD., & OTHERS VS. H.M.T. (INTERNATIONAL) LTD.,) and it has been held that to launch a prosecution against the Directors of the company, there must be specific allegation in the complaint as to the part played by them in the transaction. Further, it is held that if the cheque is issued by the Managing Director who represents the company, then the case can be proceeded only against the company and the Managing Director. It is also stated that the Court has to find out as to who are all the persons incharge of and responsible for the conduct of the business of the company or firm as the case may be.

In AIR 2000 SC 145 (ANIL HADA VS.INDIAN ACRYLIC LTD.,) it was held that if a company could not be prosecuted for any reason, (in that case winding up proceedings had been ordered) there was no bar to proceed against the Directors, but, however, in such a case the complainant had to establish that the offence was actually committed by the company. It is also held in that case that in such a case, the accused can show that the company has not committed the offence though it is not made an accused and hence the accused who has been prosecuted is not liable to be punished. It is further held that prosecution of the company is not a sine quo non for prosecution of the other persons.

In ILR 2000 Kar. 1415 (R.GURUSWAMY VS. M/S. BALAJI COTTON INDUSTRIES) one of the directors of the company had issued cheques in question and the notice was issued calling upon the company to make good the amount for which the cheques had been issued. A contention was urged that the particular director alone could not have been prosecuted. The contention was overruled by the Hon’ble High Court and it was observed as to what was the consequence of not impleading the other directors was not a thing which could be speculated upon, at the stage of issuing process.

INHERENT POWER OF COURT

INHERENT POWER OF COURT

• Ä  Discuss in detail with reference to law power of High Court by means of which relief can be granted although there is no provision in Cr.P.C.

INTRODUCTION

MEANING OF INHERENT POWER

“An authority possessed without its being derived from another.”

RELEVANT PROVISIONS

Section 561-A Cr.P.C

Section 151 C.P.C

Section 16 General Clauses Act

Article 183 and 199 of Constitution of Pakistan

INHERENT POWER OF COURT UNDER SECTION 561-A

NATURE OF INHERENT POWER

BASIS OF INHERENT POWER

The inherent powers of the court are based on the following maxim

UBI JUS ABI REMEDIUM

There is no wrong without remedy

WHEN INHERENT POWER CAN BE USED UNDER SECTION 561-A

High court can exercise inherent powers under section 561-A Cr.P.C in the following cases

I-                    IN ABSENCE OF EXPRESS PROVISION OF LAW

II-                  TO GIVE EFFECT TO ANY ORDER UNDER Cr.P.C

III-                TO PREVENT ABUSE OF PROCESS OF ANY COURT

IV-               TO SECURE ENDS OF JUSTICE

SECTION 249-A, 265-K AND 561-A Cr.P.C

LIMITATIONS OR RESTRICTIONS AGAINST THE ARBITRARY EXERCISE OF INHERENT POWER

Following are the restrictions on the inherent powers of the courts;

i)                    Inherent powers cannot be extended to make a new law on the subject

ii)                   It cannot be used against the express intention of the legislature.

iii)                 It cannot be used where there is other remedy is provided.

iv)                 It cannot override the express provision of law.

v)                  It should not be exercised to assist a party guilty of leaches or delay.

INSTANCES OF INHERENT POWER

Following are some of the instances of inherent powers of Court under section 561-A

i-                    CORRECTION OF ERRORS

ii-                  QUASHMENT OF PROCEEDINGS

iii-                STAY OF PROCEEDINGS

CONCLUSIVENESS OF FINDINGS OF HIGH COURT UNDER SECTION 561-A

Human Rights

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