DEFINITION AND CONCEPT OF PROPERTY

 

DEFINITION AND CONCEPT OF PROPERTY

 

Property has a very wider meaning in its real sense. It not only includes money and other tangible things of value, but also includes any intangible right considered as a source or element of income or wealth. The right and interest which a man has in lands and chattels to the exclusion of others. It is the right to enjoy and to dispose of certain things in the most absolute manner as he pleases, provided he makes no use of them prohibited by law.

The sea, the air, and the like, cannot be appropriated; every one may enjoy them, but no one has any exclusive right in them. When things are fully our own, or when all others are excluded from meddling with them, or from interfering about them, it is plain that no person besides the proprietor, who has this exclusive right, can have any claim either to use them, or to hinder him from disposing of them as he pleases; so that property, considered as an exclusive right to things, contains not only a right to use those things, but a right to dispose of them, either by exchanging them for other things, or by giving them away to any other person, without any consideration, or even throwing them away.

 

Basically Property is divided into real property, and personal property. Property is also divided, into absolute and qualified, when it consists of goods and chattels.

Absolute property is that which is our own, without any qualification whatever; as when a man is the owner of a watch, a book, or other inanimate thing: or of a horse, a sheep, or other animal, which never had its natural liberty in a wild state.

Qualified property consists in the right which men have over wild animals which they have reduced to their own possession, and which are kept subject to their power; as a deer, a buffalo, and the like, which are his own while he has possession of them, but as soon as his possession is lost, his property is gone, unless the animals, go animo revertendi.

Property is again divided into corporeal and incorporeal. The former comprehends such property as is perceptible to the senses, as lands, houses, goods, merchandise and the like; the latter consists in legal rights, as chooses in action, easements, and the like.

It is proper to observe that in some cases, the moment that the owner loses his possession, he also loses his property or right in the thing: animals ferae naturae, as mentioned above, belong to the owner only while he retains the possession of them. But, in general,' the loss of possession does not impair the right of property, for the owner may recover it within a certain time allowed by law.

Meaning and Definition of Property

Meaning of property: In general sense, property is any physical or virtual entity that is owned by an individual or jointly by a group of individuals. An owner of the property has the right. Human life is not possible without property. It has economic, socio-political, sometimes religious and legal implications. It is the legal domain, which institutes the idea of ownership. The basic postulate of the idea is the exclusive control of an individual over some ‘thing’. Here the most important aspect of the concept of ownership and property is the word ‘thing’, on which a person has control for use. To consume, sell, rent, mortgage, transfer and exchange his property. Property is any physical or intangible entity that is owned by a person or jointly by a group of people. Depending on the nature of the property, an owner of property has the right to consume, sell, rent, mortgage, transfer, exchange or destroy their property, and/or to exclude others from doing these things. [1]

There are some Traditional principles related to property rights which includes include:

1. Control over the use of the property.

2. Right to take any benefit from the property.

3. Right to transfer or sell the property.

4. Right to exclude others from the property.

Definition of property

There are different definitions are given in different act as per there uses and needs. But in the most important act which exclusively talks about the property and rights related to property transfer of property act 1882 has no definite definition of the term property. But it is defined in some other act as per their use and need. Those definitions are as follows:

Section 2(c) of the Benami Transactions (Prohibition) Act, 1988 defines property as:

“Property” means property of any kind, whether movable or immovable, tangible or intangible, and includes any right or interest in such property.

Section 2 (11) of the Sale of Good Act, 1930 defines property as:

“Property” means the general property in goods, and not merely a special property.
Theories behind concept of property:-

There are many theories which have been evolved for the purpose of understanding the concept of property properly.

Those theories are as follows:

1. Historical Theory of Property:

2. Labour Theory (Spencer):

3. Psychological Theory (Bentham):

4. Functional Theory ( Jenks, Laski):

5. Philosophical Theories–

(i) Property as a means to Ethnical Ends

(ii) Property as an End in itself

Historical Theory of Property

According to the Historical theory, the concept of private property had grown out of collective group or joint property. In the words of Henry Maine, “Private property was chiefly formed by the gradual disentanglement of the separate rights of individual from the blended rights of the community.

Earlier property did not belong to individuals, not even to isolated families, but the larger societies composed on patriarchal mode. Later with the disintegration of family- individual rights came into being.

Roscoe Pound also pointed out that the earliest form of property was group property. It was later on that families were partitioned and individual property came into being.

Labour Theory (Spencer)

The theory is also known as ‘positive theory’. This theory insists on the fact that labour of the individual is a foundation of property. This theory says that, a thing is the property of a person, who produces it or brings it into existence. The main supporter of this theory is Spencer, who developed it on the principle of equal freedom. He says that property is the result of individual labour. Therefore, no person has a moral right to property which he has not acquired by his personal effort.

Psychological Theory (Bentham)

According to this theory, property came into existence on account of acquisitive instinct of man. Every individual desires to own things and that brings into being property.

According to Bentham, Property is altogether a conception of mind. It is nothing more than an expectation to derive certain advantages from the object according to one’s capacity.

Roscoe Pound also supports Bentham and observed that the sole basis of conception of property is the acquisitive instinct of individual which motivates him to assert his claim over objects in his possession and control.

Functional Theory (Jenks, Laski)

The theory is sometimes also known as ‘sociological theory of property’. It implies that the concept of property should not only be confined to private rights but it should be considered as a social institution securing maximum interests of society. Property is situated in the society, has to be used in the society.

According to Jenks, no one can be allowed an unrestricted use of his property, to the detriment to others. He said that the use of property should conform to the rules of reason and welfare of the community.

According to Laski, Property is a social fact like any other, and it is the character of social facts to alter. Property has further assumed varied aspects and is capable to further change with the changing norms of society.

Property is the creation of the State
The origin of property is to be traced back to the origin of law and the state. Jenks observed that property and law were born together and would die together. It means that property came into existence when the state framed laws. Property was nowhere before law.

According to Rousseau, “It was to convert possession into property and usurpation into a right that law and state were founded”.

The first who enclosed a piece of land and said- ‘this is mine’- he was the founder of real society.

He insisted on the fact that property is nothing but a systematic expression of degrees and forms of control, use and enjoyment of things by persons that are recognized and protected by law. Thus the property was the creation of the state.

Philosophical Theories –

Property as a means to Ethnical Ends

In the opinion of Aristotle, Hegel and Green, Property has never been treated as an end, but always as a means to some other end. According to Aristotle, it may be a means to the end of good life of the citizens, further in the opinion of Hegel and Green, it may be a means to the fulfillment of the will without which individuals are not full human. According to Rousseau, Jefferson, Friedman, it may be a means as a pre-requisite of individual freedom seen as a human essence.

Similarly the outstanding critics of property like Winstanley, Marx have denounced it as destructive of human essence, a negative means in relation an ontological end.

In all the above cases, property is taken as a means not as an end.

Property as an End in itself

The supporters of liberal Utilitarian model, from Locke to Bentham, recognize property as an end. It is maximization of utilities. According to Bentham, the command of utilities is measured by the material wealth. The maximization of material wealth is indistinguishable from the ethical end; property is virtually an end in itself. In the words of Locke, the unlimited accumulation is a natural right of the individual that is an end in itself. Aristotle and Aquinas have considered, ‘’property as a means, concluded for a limited property right. Hegel and Green, treats property, as a means, concluded for an unlimited right’. The supporters of utilitarian tradition treat, accumulation of property, as an end, always meant a right of unlimited accumulation.

Later the concept changed and the utilitarian Bentham held that the ultimate end to which all social arrangements should be directed was the maximization of the aggregate utility (Pleasure minus pain) of the members of the society. While listing out the kinds of pleasures, including non material one, he held that wealth, the possession of material goods was so essential to the attainment of all other pleasures that it could be taken as the measure of pleasure or utility as such.

Kinds of property

Broadly Property is divided into three kinds those are as follow:

Movable and Immovable property

Movable property

The definition of movable property is given differently in many acts. Some of the definitions are as follows:

Section 3 (36) of the General Clauses Act defines movable property as:

'Movable property shall mean property of every description, except immovable property."

Section 2 (9) of the Registration Act, 1908 defines property as:

'Moveable property' includes standing timber, growing crops and grass, fruit upon and juice in trees, and property of every other description, except immovable property."

Section 22 of IPC defines property as:

The words “moveable property” is intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything, which is attached to the earth.

Things attached to the land may become moveable property by severance from the earth.for example Cart–loaded of earth, or stones quarried and carried away from the land become movable property.

Immovable property

The Term "Immovable Property" occurs in various Central Acts. However none of those Acts conclusively define this term. The most important act which deals with immovable property is the Transfer of Property Act (T.P.Act). Even in the T.P.Act this term is defined in exclusive terminology.

i. According to Section 3 of that Act, "Immovable Property" does not include standing timber, growing crops or grass. Thus, the term is defined in the Act by excluding certain things. "Buildings" constitute immovable property and machinery, if embedded in the building for the beneficial use thereof, must be deemed to be a part of the building and the land on which the building is situated.

ii. As per Section 3(26) of the General Clauses Act 1897, "immovable property" "shall include land, benefits to arise out of land and things attached to the earth, or permanently fastened to anything attached to the earth". This definition of immovable property is also not exhaustive;

iii. Section 2(6) of The Registration Act,1908 defines "Immovable Property" as under:

"Immovable Property includes land, building, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth or permanently fastened to anything which is attached to the earth but not standing timber, growing crops nor grass".

The definition of the term "Immovable Property" under the Registration Act 1908, which extends to the whole of India, except the State of Jammu and Kashmir, is comprehensive. The above definition implies that building is included in the definition of immovable property.

The following have been held as immovable property.

A right to collect rent, life interest in the income of the immovable property, right of way, a ferry, fishery, a lease of land.

iv. The term "Immovable Property" is defined in other Acts for the purpose of those Acts. As per Section 269UA(d) of the Income Tax Act, 1961, Immovable Property is defined as under :

a. Any land or any building or part of a building, and includes, where any land or any building or part of a building is to be transferred together with any machinery, plant, furniture, fittings or other things, such machinery, plant, furniture, fittings and other things also.

Any rights in or with respect to any land or any building or part of building (whether or not including any machinery, plant, furniture, fittings or other things therein) which has been constructed or which is to be constructed, accruing or arising from any transaction (whether by way of becoming a member of, or acquiring shares in, a co-operative society, or other association of persons or by way of any agreement or any arrangement of whatever nature, not being a transaction by way of sale, exchange or lease of such land, building or part of a building.

Tangible and Intangible property:

Tangible property

Tangible property refers to any type of property that can generally be moved (i.e., it is not attached to real property or land), touched or felt. These generally include items such as furniture, clothing, jewellery, art, writings, or household goods.

Intangible property:

Intangible property refers to personal property that cannot actually be moved, touched or felt, but instead represents something of value such as negotiable instruments, securities, service (economics), and intangible assets including chose in action

 

Intellectual property

Intellectual property is a term referring to a number of distinct types of creations of the mind for which property rights are recognized—and the corresponding fields of law.

Property does not just comprise of tangible things like houses, cars, furniture, currency, investments etc and such assets are not the only kind that can be protected by law. There are many other forms of intangible property known as intellectual property that have been recognized under the law and granted protection against infringement

Under intellectual property law, owners are granted certain exclusive rights to a variety of intangible assets, such as musical, literary, and artistic works; discoveries and inventions; and words, phrases, symbols, and designs. Patents, trademarks and copyrights, designs are the four main categories of intellectual property.

 

Patents
Patents are used to protect new product, process, apparatus, and uses providing the invention is not obvious in light of what has been done before, is not in the public domain, and has not been disclosed anywhere in the world at the time of the application. The invention must have a practical purpose. Patents are registrable nationally; the patent granted by European Patent Office is a “bundle” of national patents. No EU-wide single patent system exists to date, although the Community Patent is in the final stages of enactment. Registration provides a patentee the right to prevent anyone making, using, selling, or importing the invention for 20 years. Patents are enforced by court proceedings. In addition, the Regulation on Supplementary Protection Certificates (SPCs), grants “patent extensions” of up to 5 years to pharmaceutical and plant products, providing as much as 25 years of patent life for originator medicines.

Trade Marks

A symbol (logo, words, shapes, a celebrity name, jingles) used to provide a product or service with a recognisable identity to distinguish it from competing products. Trademarks protect the distinctive components which make up the marketing identity of a brand, including pharmaceuticals. They can be registered nationally or internationally, enabling the use of the symbol ®. Trade mark rights are enforced by court proceedings in which injunctions and/or damages are available. In counterfeiting cases, authorities such as Customs, the police, or consumer protection can assist. An unregistered trade mark is followed by the letters ™. This is enforced in court if a competitor uses the same or similar name to trade in the same or a similar field.

Copyright
Copyright is used to protect original creative works, published editions, sound recordings, films and broadcasts. It exists independently of the recording medium, so buying a copy does not confer the right to copy. Limited copying (photocopying, scanning, downloading) without permission is possible, e.g. for research. Publication of excerpts or quotes needs acknowledgement. An idea cannot be copyrighted, just the expression of it. Nor does copyright exist for a title, slogan or phrase, although these may be registered as a trade mark. Copyright applies to the Internet with web pages protected by many different copyrights, so that permission should be asked to copy or print a page, or insert a hyperlink to it. Material cannot be posted on a Web site (Intranet included) without permission from the copyright holder.

Copyright is not registrable because it arises automatically on creation. Copyright is protected in the EU for 70 years after the author’s death for creative works, 50 years for broadcasts, etc and 25 years for published editions. Use of © is not required in most of Europe. Copyright is enforced by court proceedings.

Design Registration

Design registrations are used to protect products distinguished by their novel shape or pattern. They are available for one-off items. The design itself must be new, although a 1 year grace period is allowed for test-marketing. Registration is not possible where the new form is dictated by function. The design is registrable either nationally or under an EU-wide single right. It can also be protected by copyright.

Conclusion
The existence of concept of property is from the ancient period. This concept has a very broad history. There are many philosophies laid down by many thinkers like Bentham, Laski. These philosophies are very helpful in understanding the concept of property. The main finding was that the term property is defined in different ways in each act as to its use. As in Sale of Goods act 1930 it is defined differently than in Benami Transactions (Prohibition) Act, 1988. In transfer of property act which is most important act which deals with property does not have definition of the term property. There are many kinds of property as to it uses.

In today’s era, not only the things which can be seen or touched but also the things which cannot be touched or seen come in the purview of property. Such as idea innovation, composition etc. These properties are known as intellectual property.

 

Peculiar Christmas Celebrations Across the World

 Various ceremonies are celebrated all over the world throughout the year. Of these, Christmas is celebrated in almost all countries of the world. Every year on December 25, Christmas is celebrated to commemorate the coming of the Lord Jesus. But different countries have different customs for celebrating Christmas. At first, Christmas was a Christian holiday of its own. Later, when the practice spread around the world, the customs of different countries merged to celebrate Christmas. As a result, Christmas is now celebrated in different ways in different countries. The use of the birth picture of the Lord Jesus, Santa Claus and the smiling snowman at Christmas are very popular all over the world. But in many countries Christmas is celebrated using something completely different instead. Some countries have very different, strange and startling Christmas celebrations.

A portrait of Santa Claus painted by Thomas Nast in 181; Clement helped Clark Moore create the current version of Nast Santa Claus.

1. Bad Santa in Austria In Britain, people celebrate Christmas using ‘Father Christmas’ (a form of Santa Claus), Santa Claus or St. Nick (St. Nicholas). All this is a symbol of good fortune. But the Austrian Christmas celebrations are very different. On that day, the symbol of a ghost or devil, ‘Crampus’, scares naughty children in the streets. In Christian tradition, this crampus was an assistant to St. Nicholas. Many people are often seen on the streets of Austria in December, scaring children and adults in the guise of cramps. There is also a Cramps Parade in Vienna at Christmas.

2. Caracas is the capital of the Venezuelan roller skate team. Every Christmas morning, Caracas residents like to walk around after roller skates. The practice is now so popular that traffic on city streets is completely closed from 8 a.m. onwards. This allows people to reach the church safely. It is even said that children tie a skate to their legs while sleeping and hang the other on the window. This is because if friends come on Christmas morning and pull on the skate hanging on the window, he will wake up.

3. Iceland's Yule Cat Surprise is one of the most amazing of Iceland's Yule Cat customs. It is said that a giant cat wanders there during Christmas. And those who didn't get new clothes at Christmas ate them. In fact, this custom was prevalent among the farmers. Those who did good farming, showed loyalty to the owners; They were given new clothes as gifts. Those who did not, it is said, became the food of the Yule Cat. Currently, according to the rules, everyone in Iceland has to wear new clothes at Christmas, so that they are protected from Yule Cat.

.4. Christmas in the spider web of Ukraine For those who are afraid of spiders, the celebration of Christmas in Ukraine is not for them. When the whole world celebrates Christmas with toys, lights, beautiful decorations, the people of Ukraine decorate their homes with dew-wet spider webs. According to mythology, a poor widow could not arrange a Christmas tree for her children due to lack of money. Seeing his sorrow, the spiders weave their nets and decorate the tree very beautifully. The children were fascinated to see the spider's web the next morning. Spider webs are also considered sacred and auspicious in Ukrainian culture.

5. In 1974, Colonel Santa of Japan issued a business notice to the American fast food company KFC in Japan during Christmas. Their slogan was: Kurisumasu ni wa Kentakki. That means Kentucky at Christmas. This became a national custom and is still observed today. Although Christmas is not a national holiday in Japan, the Japanese prefer to eat from KFC on Christmas day.

6. The introduction of the Christmas tree, the German pickle tree, is said to have originated in Germany in the sixteenth century. According to that, there will be some different customs, that is normal. One of them is to hide the pickles behind the branches of the tree. The child who finds the ritual is given the ritual as a gift. Again many say that the introduction of the Christmas tree did not begin in Germany. According to a story, the use of this ritual at Christmas actually began in Spain. The two young men were imprisoned in a barrel of pickles. St. Nicholas freed them and gave them life. As it turns out, hiding the pickles on the Christmas tree is fancy and exciting.

. Finland's steam baths Finland is already a very cold country and almost all homes have steam baths to cope with the cold. At Christmas it becomes a very sacred place for them where they try to connect with their predecessors. On the eve of Christmas, they sit in this steam bath for a long time, naked as usual. It is said that this bathroom is the abode of the sauna elf. When the bath is over, they celebrate Christmas and believe that their predecessors are using the steam bath instead.

Swedish challenge - Going naked to the sauna | Study in Sweden: the student blog

. Netherlands Fire Shoes Every year, children in the Netherlands leave their shoes by the fireplace at home on December 5 in the hope that Sinterclass (Saint Claus or St. Nicholas) will come and fill them with lozenges and gifts. Even according to tradition, the white horse of Cinterclass is stuffed with carrots in the shoes for Amerigo. In the past, shoes were filled with potatoes instead of gifts to intimidate naughty children. However, this practice has now stopped.

9. If the Belfana Witch of Italy is in Italy, you should forget about December 25 and Santa Claus, because Christmas is celebrated there on January 5. According to a popular story, a woman named Belfana delivered lozenges to children in Italy at this time. He also gives gifts to good children. Just like Father Christmas (the traditional Santa Claus) Belfana comes with the chimney and leaves gifts for the kids. Gifts include wine and good food.

10. South Africa's caterpillar fried Christmas food is the most popular meat pie and turkey meat. But the most popular Christmas food in South Africa is fried caterpillars. This is probably the strangest Christmas special food in the world. However, it is not a common caterpillar. Pine tree emperor moth or Christmas caterpillar is used in this case. This dish is believed to symbolize the good times of the coming year with its deliciousness.

11. Norwegian flying witch According to Norwegian mythology, evil spirits and witches fly in the sky on the eve of Christmas. Their job is to bully, ridicule and embarrass people. Since witches fly on brooms, Norwegians hide brooms on Christmas Eve so that witches can't find their favorite vehicle.

12. Donald Duck from Sweden A video was released in 1958 called Kale Anka Och Hans Van's Oscar God Jul, meaning Donald Duck and his friends wish you a Merry Christmas. Every year, people in Sweden gather to watch this video of Donald Duck on TV at exactly 3 p.m. All the celebrations revolve around this broadcast and still about 40% of people in Sweden are involved in this practice. It all started in the early 1970's when Disney's Christmas cartoons were shown on TV. It is no less surprising that people from all over the country come together to watch the broadcast of a single show.

13. Christmas trees are used instead of New Zealand to look the same in all countries. But New Zealanders use a tree called Pahutukawa instead of pine. This tree is found in New Zealand. The roots of the tree are spiral in shape and have bright red flowers. The tree was first mentioned by Austrian geologist Ferdinand von Hutchstater in 18. He said the tree is used in home and church decorations in New Zealand. The Pahutukawa tree is now a symbol of Christmas in New Zealand. The tree is also mentioned in Christmas cards, decorations and Christmas carols.

14. The most popular Christmas celebration in Spain is the T লo de Nadal, also known as the Christmas log. It is found in the Spanish province of Catalonia. Tio de Nadal is a hollow log. He is wearing a wooden hand-foot, a smile on his face and a red hat on his head. From December 6 to December 23, the children feed and water inside the hollow. Wrap in blankets to keep warm at night. But on the eve of Christmas, the children start beating the stump. There's also a lot of fun songs: Pup Log, Pup Nogats, Hazelnuts and Mato Cheese (different food names), If You Don't Pup Well, I'll Will Hit You With A Stick, Pup Log. I mean, pop log, if you don't give us nougat, hazelnuts and mato cheese, we'll kill you. The strange thing is that after beating Tio de Nadal, amazing lozenges and gifts come out of his mouth like vomit.

15. Sweden's Yul Got Sweden has a more strange Christmas tradition. This is probably the oldest practice mentioned in this text. The story of the Yul goat is made around the eleventh century. It is said that St. Nicholas walked around with a human-shaped goat and that the goat had the power to subdue the devil. Although much has changed over time. In the seventeenth century, men used to walk around in the guise of goats and make jokes and ask for gifts. In the nineteenth century these yul goats were good people; Gave gifts to children. Instead of Father Christmas, the elders of the family used to give presents to the whole family in the guise of goats. Today, of course, people no longer wear goats. Instead, Christmas trees are decorated with such toys. In big cities, portraits of beautiful yul goats are made with straw and ribbons. However, many of them set fire to this straw goat in a funny way. This is how many goats are destroyed by fire every year.

Applicability of review in the Sec 22(2) (e) Recovery of Debts and Bankruptcy Act in Securitisation Act.

 However, as observed above, by incorporation or by reference and considering the sub-section 7 of Section 17 of the SARFAESI Act, 2002, Section 22(2) (e) of the RDB Act, 1993 and Rule 5-A of the Debts Recovery Tribunal (Procedure) Rules, 1993 shall be applicable and therefore, the aforesaid decisions shall not be of any assistance to the appellant.

Patna High Court

Dilip Kumar vs The Union Of India & Ors on 27 September, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1029 of 2018
IN
Civil Writ Jurisdiction Case No. 15034 of 2017
===========================================================

Dilip Kumar son of Sri Raj Kumar Paswan, Resident of Village- Sherpura Panchdevta, P.S. Tekari, District-Gaya.

.... .... Appellant/s Versus

1. The Union of India through the Secretary, Banking Division, Ministry o f Finance, Government of India, New Delhi.

2. The Presiding Officer, Debt Recovery Tribunal, Patna.

3. UCO Bank, M.M.C.H. Branch, Gaya.

4. Authorised Officer, UCO Bank, Regional Office, 4 th Floor in Block-A, Mauryalok Complex, New Dak Bunglow Road, P.S.- Kotwali, District- Patna, Patna-800001.

... Respondents/Respondents 1st Set.

5. Sri Niteesh Kumar Singh, son of Late Om Prakash Singh

6. Smt. Kiran Singh, W/o Late Om Prakash Singh, Both resident of Mohalla- Bahuar Chaura, Tilha Dharamshala, West Gate, P.S.- Civil Lines, District-Gaya .... Petitioners/Respondent 2nd Set.

=========================================================== Appearance :

For the Appellant/s : Mr. Rajendra Narain, Senior Advocate : Mr. Rajesh Kumar, Advocate For the UCO Bank : Mr. Ranjeet Kumar Pandey, Advocate For the Respondent Nos. 5&6: Mr. Shivendra Kumar Roy, Advocate For the Respondent/UOI : Mr. S.D. Sanjay,ASG.

: Ms. Kanak Verma, C.G.C.

=========================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE ASHUTOSH KUMAR CAV JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Date: 27-09-2018

1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Single Judge dated 25.06.2018 passed in C.W.J.C. No. 15034 of 2017 by which the learned Single Judge has allowed the said petition preferred by the original writ petitioners-respondent Nos. 5 and 6, herein, and quashed and set aside the order passed by the Debt Recovery Patna High Court LPA No.1029 of 2018 dt.27-09-2018 Tribunal, Patna dated 01.09.2017 passed in Review Application No. 02 of 2017, by which the learned Presiding Officer, D.R.T. Patna dismissed the said review application as not maintainable, and thereafter, remanded the matter to the learned Presiding Officer, D.R.T., Patna for considering the said review application in accordance with law and on merits, the original respondent No. 5 has preferred the present Letters Patent Appeal.

2. The facts leading to the present Letters Patent Appeal, in nutshell, are as under:

2.1. That one Om Prakash Singh (now deceased) and father of respondent No.5, herein, had taken housing loan from various Banks including the UCO Bank. That the dwelling house in which the borrower as well as the original writ petitioners were residing was mortgaged. That SARFAESI proceedings were initiated by the UCO Bank and finally the mortgaged property came to be auction/sold on 27.05.2016. That the respondent Nos. 5 and 6, herein (hereinafter referred to as the „Original writ petitioners‟) therefore, filed SARFAESI Application No. 209 of 2016 before the Debt Recovery Tribunal (hereinafter referred to as „the DRT‟) on 30.11.2016 contending, inter alia, that the notices under Sections 13(2) and 13(4) of the SARFAESI Act were not served. As there was delay in preferring an appeal, the original writ petitioners field a limitation petitioner under Section 5 of the Limitation Act and Patna High Court LPA No.1029 of 2018 dt.27-09-2018 requested to condone the delay of 15 days. The DRT dismissed the said SARFAESI Application No. 209 of 2016 along with limitation petition, holding that there was suppression of material fact as they had not disclosed the material fact. That thereafter, the original writ petitioners field a review application being R.A. No. 02 of 2017 to review and recall the order dated 09.01.2017. That the said review application was filed under Rule 5-A of the Debts Recovery Tribunal (Procedure) Rules, 1993 (hereinafter to as „the 1993 Rules‟) read with sub-section 7 of Section 17 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the „SARFAESI Act‟). That by the order dated 01.09.2017, the learned Presiding Officer, DRT, Patna dismissed the said application as not maintainable on the ground that there is no provision in the SARFAESI Act for review of the judgment and order passed in SARFAESI Application by the Tribunal.

2.2. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned DRT, Patna dated 01.09.2017 passed in R.A. No. 02 of 2017, dismissing the review application as not maintainable, the original writ petitioners preferred the writ petition being C.W.J.C. No. 15034 of 2017 before this Court. That by the impugned judgment and order dated 25.06.2018 considering the provisions of Section 17(7) of the Patna High Court LPA No.1029 of 2018 dt.27-09-2018 SARFAESI Act, 2002 read with Section 22(2)(e) of the Recovery of Debts and Bankruptcy Act, 1993 (hereinafter referred to as the „RDB Act‟) read with Rule 5-A of the 1993 Rules, the learned Single Judge has allowed the said writ petition and quashed and set aside the order passed by the learned DRT rejecting the review application as not maintainable and has remanded the review application directing the learned DRT to disposed of the same in accordance with law.

3. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Single Judge, the original respondent No.5, purchaser of the mortgaged property purchased in an auction in a proceeding initiated by the UCO Bank, has preferred the present Letters Patent Appeal.

4. Sri Rajendra Narain, learned Senior Advocate has appeared on behalf of the appellant and Sri Ranjeet Kumar Pandey, learned Advocate has appeared on behalf of the UCO Bank and Sri Shivendra Kumar Roy, learned Advocate has appeared on behalf of the original writ petitioners-respondent Nos. 5 and 6 herein.

5. Sri Rajendra Narain, learned Senior counsel appearing on behalf of the appellant has vehemently submitted that in the facts and circumstances of the case, the learned Single Judge has materially erred in quashing and setting aside the order passed by the learned DRT, rejecting the review application as not maintainable. It Patna High Court LPA No.1029 of 2018 dt.27-09-2018 is further submitted that the impugned judgment and order passed by the learned Single Judge is not sustainable at law. It is further submitted that the learned Single Judge has materially erred in observing and holding that the DRT would have jurisdiction to entertain and consider the review application. It is further submitted that in the present case, the learned Single Judge has materially erred in relying upon and considering the Section 22(2)(e) of the RDB Act, 1993 as well as Rule 5-A of the 1993 Rules and also Section 17(7) of the SARFAESI Act, 2002. It is further submitted that the learned Single Judge has materially erred in observing and holding that the learned DRT would have jurisdiction to decide the review application with respect to review the order passed under the SARFAESI Act, 2002 as there are no specific powers of review conferred with the learned Tribunal under the SARFAESI Act, 2002. 5.1. Sri Rajendra Narain, learned Senior counsel appearing on behalf of the appellant has further submitted that as the DRT, under the SARFAESI Act, 2002, is a creature of the statute and derive its powers only from the special provisions of the statute and there being no specific power of review with the learned DRT to review the order passed in SARFAESI Application and therefore, the DRT cannot assume the power of review.

5.2. In support of his above submission, Sri Rajendra Narain, learned Senior counsel appearing on behalf of the appellant has Patna High Court LPA No.1029 of 2018 dt.27-09-2018 heavily relied upon the following decisions of the Hon‟ble Supreme Court;

(i) Rajeev Hitendra Pathak & Ors. Vs. Achyut Kashinath Karekar & Anr. reported in 2011 (9) SCC 541;

(ii) Kalabharati Advertising Vs. Hemant Vimalnath Narichania & Ors. reported in 2010 (9) SCC 437;

(iii) Kapra Mazdoor Ekta Union Vs. Management of M/s. Birla Cotton. reported in 2005 (13) SCC 777;

5.3. Sri Rajendra Narain, learned Senior counsel appearing on behalf of the appellant has also heavily relied upon the decision of the Division Bench of the Madhya Pradesh High Court in the case of M/s. Ramdev Ginning Factory Vs. Chief Manager, Authorized Officer, ICICI BANK LTD. Others passed in Writ Petition No. 12718 of 2013.

5.4. Sri Rajendra Narain, learned Senior counsel appearing on behalf of the appellant has further submitted that while passing the impugned judgment and order and holding that the DRT would have jurisdiction to review its own order passed in SARFAESI Application, the learned Single Judge has materially erred in relying upon sub-section 7 of Section 17 of the SARFAESI Act. It is further submitted that sub-section 7 of Section 17 of the SARFAESI Act, 2002 shall be applicable and confers power to the learned DRT to Patna High Court LPA No.1029 of 2018 dt.27-09-2018 dispose of the application in accordance with the provision of Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and the rules made thereunder in so far as the procedural aspect is concerned only and not with respect to the powers of review.

6. Making above submissions and relying upon the above decisions, it is requested to allow the present Letters Patent Appeal and quash and set aside the impugned judgment and order passed by the learned Single Judge and to restore the order passed by the learned DRT dated 01.09.2017 passed in Review Application being R.A. No. 2 of 2017.

7. Sri Ranjeet Kumar Pandey, learned counsel appearing on behalf of the UCO Bank has supported the appellant herein and has submitted that the order passed by the learned DRT holding that the review application to review the order passed in SARFAESI Application shall not be maintainable.

8. Sri Shivendra Kumar Roy, learned counsel appearing on behalf of the original writ petitioners has supported the impugned judgment and order passed by the learned Single Judge and has submitted that the learned Single Judge has rightly considered and relied upon sub-section 7 of Section 17 of SARFAESI Act, 2002 and thereby, has rightly relied upon and considering Section 22(2)(e) of the RDB Act, 1993 by which powers of review are conferred with Patna High Court LPA No.1029 of 2018 dt.27-09-2018 the DRT and thereby, has rightly remanded the matter to the learned Tribunal to decide and dispose of the review application. 8.1. Sri Shivendra Kumar Roy, learned counsel appearing on behalf of the original writ petitioners has heavily relied upon the decision of the Hon‟ble Supreme Court in the case of Baleshwar Dayal Jaiswal vs. Bank of India and Others reported in 2016 (1) SCC 444 (Paragraphs 7 and 8) and submitted that the provisions of Recovery of Debts and Bankruptcy Act, 1993 and the rules thereunder shall be applicable to the proceeding before the DRT with respect to the SARFAESI Act, 2002 by incorporation and/or by reference. It is further submitted that therefore, Section 22(2) (e) of the RDB Act, 1993 shall be applicable to the disposal of the application by the DRT under Section 17 of SARFAESI Act, 2002. It is further submitted that even Rule 5-A of the Debts Recovery Tribunal (Procedure) Rules, 1993 also shall be applicable with respect to the proceedings/application under the SARFAESI Act, 2002. It is further submitted that therefore, the learned Single Judge has rightly held that the DRT would have jurisdiction to entertain/consider the review application to review the order passed under the SARFAESI Act, 2002.

8.2. Sri Shivendra Kumar Roy, learned counsel appearing on behalf of the original writ petitioners has also relied upon the decision of the learned Single Judge of the Calcutta High Court in Patna High Court LPA No.1029 of 2018 dt.27-09-2018 the case of Bangla Bijuli Power Technologies Private Limited Vs. The Authorized Officer, I.D.B.I. Bank Limited, Kolkata & Ors. passed in W.P. No. 27330(W) of 2016.

8.3. Making above submissions and relying upon the above decision, it is requested to dismiss the present Letters Patent Appeal.

9. Heard learned counsel appearing on behalf of the respective parties at length.

10. The short question, which is paused for consideration by this Court, is whether the DRT would have jurisdiction to entertain the review application to review its own order passed under the SARFAESI Act, 2002 or not?

11. It is the case on behalf of the appellant herein that as under the SARFAESI Act, 2002, there is no specific provision conferring the power upon the DRT to review its own order passed under the SARFAESI Act, 2002 and therefore, the Tribunal being creature of the statute, unless the specific powers are conferred, the DRT would not have any jurisdiction to review its own order passed under SARFAESI Act, 2002.

12. Per contra, it is the case on behalf of the original writ petitioners that as held by the learned Single Judge considering sub- section 7 of Section 17 of the SARFAESI Act, 2002, the provisions of the RDB Act, 1993 and the rules thereunder shall be applicable and, therefore, as under Section 22(2)(e) of the Recovery of Debts Patna High Court LPA No.1029 of 2018 dt.27-09-2018 10/ 15 and Bankruptcy Act, 1993, the DRT would power to review its own order, the DRT would have jurisdiction to review its order passed under SARFAESI Act, 2002 also.

12.1. While considering the aforesaid question, namely, whether the DRT would have jurisdiction to review its own order passed under SARFAESI Act, 2002, relevant provisions of the SARFAESI Act, 2002 as well as the RDB Act, 1993 and even the Debts Recovery Tribunal (Procedure) Rules, 1993 are required to be referred to.

12.2. Sub-section 7 of Section 17 of the SARFAESI Act, 2002, Section 22(2)(e) of the RDB Act, 1993 and Rule 5A of the Debts Recovery Tribunal (Procedure) Rules, 1993, which are relevant for the purpose of determination and adjudication of the issue, involved in the present Letters Patent Appeal, read as under:

"17(7) Save as otherwise provided in this Act, the Debts Recovery Tribunal shall, as far as may be, dispose of the application in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) and the rules made thereunder.]"

"22. Procedure and Powers of the Tribunal and the Appellate Tribunal-

(2) The Tribunal and the Appellate Tribunal shall have, for the purposes of discharging their functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908(5 of 1908), while trying a suit, in respect of the following matters, namely:-

(a) ..........

(b) ..........

(c) ..........

(d)..........

Patna High Court LPA No.1029 of 2018 dt.27-09-2018 11/ 15

(e); reviewing its decisions"

Rule 5-A. Review- (1) Any party considering itself aggrieved by an order made by the Tribunal on account of some mistake or error apparent on the face of the record desires to obtain a review of the order made against him, may apply for a review of the order to the Tribunal which had made the order."

(2) No application for review shall be made after the expiry of a period of [thirty days] from the date of the order and no such application shall be entertained unless it is accompanied by an affidavit verifying the application.

(3) Where it appears to the Tribunal that there is no sufficient ground for a review, it shall reject the application [but where the Tribunal is of opinion that the application] for review shall be granted, iti shall grant the same:

Provided that no such application shall be granted without previous notice to the opposite party to enable him to appear and to be heard in support of the order, a review of which is applied for.] 12.3. Thus, as per sub-section 7 of Section 17 of the SARFAESI Act, 2002, the provisions of Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and the rules made thereunder shall be applicable with respect to the application under the SARFAESI Act and it provides that the Debts Recovery Tribunal may also dispose of the application (under SARFAESI Act, 2002) in accordance with provisions of Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and the Rules made thereunder. It is not in dispute that Section 22(2)(e) of the RDB Act, 1993 confers power upon the Tribunal to review its own order/decision. Even there is specific provision in the Debts Recovery Tribunal (Procedure) Rules, 1993 viz. Rule 5-A of 1993 Patna High Court LPA No.1029 of 2018 dt.27-09-2018 12/ 15 Rules which specifically confer powers upon the Tribunal to review its own order. Thus, the legislation by incorporation or by reference has adopted the provisions of the RDB Act, 1993 and the rules made thereunder into SARFAESI Act, 2002 by virtue of Section 17(7) of the SARFAESI Act, 2002.

12.4. Somewhat identical questions came to be considered by the Hon‟ble Supreme Court in the case of Baleshwar Dayal Jaiswal (supra.) In the case before the Hon‟ble Supreme Court, the question was with respect to power of the Appellate Tribunal to condone the delay in filing the appeal under Section 18(1) of the Act, 2002. After considering a similar provision under the SARFAESI Act, 2002 and Section 18(2) SARFAESI Act, 2002, the Hon‟ble Supreme Court has observed that the proviso to Section 20(3) of the RDDB Act, 1993 shall be applicable by virtue of Section 18(2) of the SARFAESI Act, 2002 by incorporation or by reference. Section 18(2) of the SARFAESI Act, 2002 which was under consideration before the Hon‟ble Supreme Court which reads as under:

"18(2) Save as otherwise provided in this Act, the Appellate Tribunal shall, as far as may be, dispose of the appeal in accordance with the previsions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993 and rules made thereunder."

By considering Section 18(2) of the SARFAESI Act, 2002, the Hon‟ble Supreme Court has observed and held that the proviso to Section 20(3) of the RDDB Act shall be applicable to the disposal of Patna High Court LPA No.1029 of 2018 dt.27-09-2018 13/ 15 the appeal by the Appellate Tribunal under Section 18(2) of the SARFAESI Act, 2002, the relevant paragraphs read as under:

"7. The first point for consideration is the applicability of proviso to Section 20(3) of the RDDB Act to the disposal of an appeal by the Appellate Tribunal under Section 18(2) of the SARFAESI Act. A bare perusal of the sail Section 18(2) makes it clear that the Appellate Tribunal under the SARFAESI Act has to dispose of an appeal in accordance with the provisions of the RDDB Act. In this respect, the provisions of the RDDB Act stand incorporated in the SARFAESI Act for disposal of an appeal. Once it is so, we are unable to discern any reason as to why the SARFAESI Appellate Tribunal cannot entertain an appeal beyond the prescribed period even on being satisfied that there is sufficient cause for not filing such appeal within that period. Even if power of condonation of delay by virtue of Section 29(2) of the Limitation Act were held not to be applicable, the proviso to Section 20(3) of the RDDB Act is applicable by virtue of Section 18(2) of the SARFAESI Act. This interpretation is clearly borne out from the provisions of the two statutes and also advances the cause of justice. Unless the scheme of the statute expressly excludes the power of condonation, there is no reason to deny such power to an Appellate Tribunal when the statutory scheme so warrants. Principle of legislation by incorporation is well known and has been applied, inter alia, in Ram Kirpal Bhagat v. State of Bihar, Bolani ores Ltd. v. State of Orissa, Mahindra and Mahindra Ltd. v. Union of India and Onkarlal Nandlal v. State of Rajasthan relied upon on behalf of the appellants. We have thus no hesitation in holding that the Appellate Tribunal under the SARFAESI Act has the power to condone the delay in filing an appeal before it by virtue of Section 18(2) of the SARFAEI Act and the proviso to Section 20(3) of the RDDB Act.

8. The fact that RDDB Act and the SARFAESI Act are complementary to each other, as held by this Court in Transcore v. Union of India, also supports this view."

12.5. Applying law laid down by the Hon‟ble Supreme Court Patna High Court LPA No.1029 of 2018 dt.27-09-2018 14/ 15 in the case of Baleshwar Dayal Jaiswal (supra) to the facts of the case on hand, more particularly, with respect to applicability of Section 22(2)(e) of the RDB Act to the disposal of an application by the DRT under Section 17 of the SARFAESI Act, 2002, the learned Single Judge has rightly observed and held that the DRT would have jurisdiction to review its own order passed under the SARFAESI Act. A similar view has been taken by the Calcutta High Court in the case of Bangla Bijuli Power Technologies Private Limited (supra).

13. In so far as the reliance placed upon the decisions of the Hon‟ble Supreme Court, referred to hereinabove, relied upon by the learned counsel appearing on behalf of the appellant that the Tribunal being the creature of the statute, unless the specific powers are conferred, the Tribunal will not assume the jurisdiction of review is concerned, there cannot be any dispute to the proposition of law laid down by the Hon‟ble Supreme Court in the aforesaid decision. However, as observed above, by incorporation or by reference and considering the sub-section 7 of Section 17 of the SARFAESI Act, 2002, Section 22(2) (e) of the RDB Act, 1993 and Rule 5-A of the Debts Recovery Tribunal (Procedure) Rules, 1993 shall be applicable and therefore, the aforesaid decisions shall not be of any assistance to the appellant.

14. In so for as the reliance placed upon the decision of the Madhya Pradesh High Court is concerned, in view of the decision of Patna High Court LPA No.1029 of 2018 dt.27-09-2018 15/ 15 the Hon‟ble Supreme Court in the case of Baleshwar Dayal Jaiswal (supra) referred to hereinabove, we are not in agreement with a view taken by the Madhya Pradesh High Court as apart from the fact, the Madhya Pradesh High Court, in the same decision, was dealing with the powers of the Appellate Tribunal.

15. In view of the above and for the reasons, stated above, we are of the opinion that the learned Single Judge has not committed any error in holding that the DRT would have jurisdiction to review its own order passed under the SARFAESI Act, 2002. We are in complete agreement with the view taken by the learned Single Judge, therefore, no interference by this Court is called for in exercise of the intra Court appellate jurisdiction.

16. In view of the above and for the reasons, stated above, the present Letters Patent Appeal fails and the same deserves to be dismissed and is, accordingly, dismissed.

(Mukesh R. Shah, CJ) (Ashutosh Kumar, J) Brajesh/-

AFR/NAFR CAV DATE Uploading Date Transmission Date

Interpretation of non Obstante Clause

 

What is a non-obstante clause?

A non-obstante clause is generally appended to a section with a view to give the enacting part of the section, in case of conflict, an overriding effect over the provision in the same or other Act mentioned in the non-obstante clause. It is equivalent to saying that in spite of the provisions or Act mentioned in the non-obstante clause, the provision following it will have its full operation or the provisions embraced in the non-obstante clause will not be an impediment for the operation of the enactment or the provision in which the non-obstante clause occurs. [Source:See: ‘Principles of Statutory Interpretation’, 9th Edition by Justice G.P. Singh Chapter V, Synopsis IV at pages 318 & 319]

e.g. Section 129 of The CGST Act start with

“Notwithstanding anything contained in this Act, where any person transports any goods or stores any goods while they are in transit in contravention of the provisions of this Act or the rules made thereunder, all such goods and conveyance used as a means of transport for carrying the said goods and documents relating to such goods and conveyance shall be liable to detention or seizure and after detention or seizure, shall be released,”

It has a non -obstante clause. It overrides the entire CGST Act.

How to interpret a non-obstante clause?

It is discussed in many cases. Some of them are here for reference. But the crux of all those observations is that we need to see the Act entirely. 

When there is a non-obstante clause in more than one provision.

 

When two or more laws or provisions operate in the same field and each contains a non-obstante clause stating that its provision will override those of any other provisions or law, stimulating and intricate problems of interpretation arise. In resolving such problems of interpretation, no settled principles can be applied except to refer to the object and purpose of each of the two provisions, containing a non-obstante clause. Two provisions in the same Act each containing a non-obstante clause require a harmonious interpretation of the two seemingly conflicting provisions in the same Act. In this difficult exercise, there are involved proper consideration of giving effect to the object and purpose of two provisions and the language employed in each. [See: for relevant discussion in para 20 in Shri Swaran Singh & Anr. v. Shri Kasturi Lal; (1977) 1 SCC 750] 

Difference between: (a) ‘non-obstante’ clause and (b) ‘subject to’ other provisions

The effect of any provision containing non-obstante clause and the ambit and scope of a provision which has been made ‘subject to’ some other provision or enactment and distinction between the two, is well established. When a provision of any enactment is made ‘subject to’ some other provision, it conveys the idea that such provision shall yield to another provision to which it is made subject. Whereas a non-obstante clause is a legislative device to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions, to which such non-obstante provision has been given over-riding effect.[1] The Hon’ble Supreme Court in Chandavarkar S.R. Rao v. Ashalata S. Guram[2] stated- “A clause beginning with the expression ‘notwithstanding anything contained in this Act or in some particular provision in the Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force, or in any contract’ is more often than not appended to a section in the beginning with a view to give the enacting part of the section in case of conflict an overriding effect over the provision of the Act or the contract mentioned in the non-obstante clause. It is equivalent to saying that inspite of the provision of the Act or any other Act mentioned in the non-obstante clause or any contract or document mentioned in the enactment following it will have its full operation or that the provisions embraced in the non-obstante clause would not be an impediment for an operation of the enactment.”

[1]Jawahar Sons Enterprises Pvt. Ltd. vs. State and Ors., 2002(2)WLN565 at para 17

[2] 1986 4 SCC 447

Conclusion

Thus, the non-obstante clauses are not always to be regarded as repealing clauses nor as clauses which expressly or completely supersede any other provision of the law, but merely as clauses which remove all obstructions which might arise out of the provisions of any other law in the way of the operation of the principle enacting provision to which the non-obstante clause is attached. [See: Bipathumma & Ors. v. Mariam Bibi; 1966(1) Mysore Law Journal page 162, at page 165]

If more than one construction is possible, that which preserves its workability and efficacy is to be preferred to the one which would render it otiose or sterile.

RBI v. Peerless General Finance and Investment Co. Ltd., [(1987) 1 SCC 424],

“that interpretation is best which makes the textual interpretation match the contextual.” Speaking for the Court, Chinappa Reddy, J. noted the importance of rule of contextual interpretation and held:-

“Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted.”