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No doubt there the learned Chief Justice in the majority judgment did say that to import into the Mohammedan Law of pre emption the definition of the word " sale " with restrictions contained in section 54 of the Transfer of Property Act would materially alter Mohammedan Law of preemption and afford fraudulent persons ... |
Mahmood, J., in Janki vs Girjadat (4) though in a minority (four judges took a different view) was of the opinion that a valid and (1) All. 344. Ratio |
(2) Cal. Ratio |
(3) (1921) 48 I.A. 475. Ratio |
(4) All. Ratio |
256 perfected sale was a condition precedent to the exercise of the right of pre emption and until such sale had been effected the right of pre emption could not arise. Ratio |
Section 17 read with section 49 of the Registration Act shows that a transfer of immoveable property where it is worth Rs. 100 or more requires registration and unless so registered the document does not affect the property and cannot be received in evidence. STA |
The following observations of Mahmood, J., from Janki vs Girjadat (1) are very apposite: " If a valid and perfected sale were not a condi tion precedent to the exercise of the pre emptive right, consequences would follow which the law of pre emption does not contemplate or provide for. PRE |
In this very case, supposing the so called vendor, notwithstanding the application of the 15th August, 1882 (which cannot amount to an estoppel under the circumstances) continues or recenters into possession of the property it is clear that the so called vendee would have no, title under the so called sale, to enable h... |
The right of pre emption being only a right of substitution, the successful pre emptor 's title is necessarily the same as that of the vendee and if the vendee took nothing under the sale the preemptor can take nothing either; and it follows that if the vendee could not oust the vendor, the preemptor could not do so ei... |
Again, if notwithstanding a pre emptive suit such as this, the so called vendor, who has executed an invalid sale which does not in law divest him of the proprietary right, subsequently executes a valid and registered sale deed in favour of a co sharer other than the preemptor or in favour of a purchaser for value with... |
(1) All. Ratio |
257 Under section 54 of the Transfer of Property Act a contract for sale does not of itself create any interest in or charge on immoveable property and consequently the contract in the instant case created no interest in favour of the vendee and the proprietary title did not validly pass from the vendors to the vendee ... |
As we have said earlier wherever the Transfer of Property Act is in force Mohammedan Law or any other personal law is inapplicable to transfers and no title passes except in accordance with that Act. Ratio |
Therefore when the suit was brought there was no transfer by way of sale which could be subject to preemption. Ratio |
It was next contended that the appellant was guilty of fraud in that in order to defeat the right of the preemptors a deed of sale was not executed although as a matter of fact price had been paid, possession had passed and for all intents and purposes the appellant had become the owner of the property and that conduct... |
The right to pre empt the sale is not exercisable till a pre emptible transfer has been effected and the right of pre emption is not one which is looked upon with great favour by the courts presumably for the reason that it is in derogation of the right of the owner to alienate his property. Ratio |
It is neither illegal nor fraudulent for parties to a transfer to avoid and defeat a claim for pre emption by all legitimate means. Ratio |
In the Punjab where the right of pre emption is also statutory the courts have not looked with disfavour at the attempts of the vendor and the vendee to avoid the accrual of right of pre emption by any lawful means and this view has been accepted by this court in Bishan Singh vs Khazan Singh (7) where Subba Rao, J., ob... |
In the present case the transaction of sale had not (7) ; ,884. Ratio |
33 258 been completed until February 1, 1944, when the sale deed was executed. Ratio |
There are no equities in favour of a pre emptor, whose sole object is to disturb a valid transaction by virtue of the rights created in him by statute. Ratio |
To defeat the law of pre emption by any legitimate means is not fraud on the part of either the vendor or the vendee and a person is entitled to steer clear of the law of pre emption by all lawful means. Ratio |
It was then submitted that the sale deed had as a matter of fact, been executed on February 1, 1944; but respondent Sridhar brought the suit not on the cause of action arising on the sale dated February 1, 1944, but on the transaction of April 10, 1943, coupled with that of April 24, 1943, which being mere contracts of... |
Mr. Chatterji urged that it did not matter if the sale took place later and the suit was brought earlier but the suit as laid down was one to pre empt a sale of April 1943 when, as a matter of fact, no sale had taken place. ARG |
If respondent Sridhar had based his right of pre emption on the basis of the sale of February 1, 1944, the appellant would have taken such defence as the law allowed him. Ratio |
The defence in regard to the conversion of the land from agricultural into non agricultural site which negatives the right of pre emption would then have become a very important issue in the case and the appellant would have adduced proper proof in regard to it. Ratio |
The right of pre emption is a weak right and is not looked upon with favour by courts and therefore the courts could not go out of their way to help the pre emptor. Ratio |
In our opinion the judgment of the High Court was erroneous and we would therefore allow this appeal, set aside the judgment and decree of the High Court and dismiss the suit with costs throughout. RPC |
The ability of asylum seekers who make unsuccessful claims to be allowed to remain to discover further reasons why they should not be removed from the country where they seek refuge is an inescapable feature of any system that is put in place to meet a States obligations under the Geneva Convention on the Status of Ref... |
The opportunity for further reasons to be put forward is enhanced by the fact that a series of decisions may need to be taken before a persons immigration status is resolved. FAC |
Various measures have been put in place by the United Kingdom to deal with this phenomenon. FAC |
Some of these measures are to be found in the Immigration Rules, and on occasion the meaning that is to be given to them is the subject of controversy: see ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6, [2009] 1 WLR 348. FAC |
In this case however we are concerned with meaning and effect of the statute. STA |
The relevant provisions are to be found in Part 5 of the Nationality, Immigration and Asylum Act 2002, which deals with immigration and asylum appeals. STA |
The question is whether the expression an asylum claim, or a human rights claim in section 92(4)(a) of the 2002 Act includes any second or subsequent claim that the asylum seeker may make, or only a second or subsequent claim which has been accepted as a fresh claim by the Secretary of State under rule 353 of the Immig... |
The facts FAC |
The first respondent BA is a citizen of Nigeria. FAC |
He is married to a British citizen, by whom he has four children. FAC |
He entered the United Kingdom in 1988 as a visitor. FAC |
Initially he was given six months leave to enter. FAC |
Later he was granted leave to remain as a student until the end of August 1991. FAC |
He was granted indefinite leave to remain on 25 May 1994 on the basis of his marriage. FAC |
On 20 May 2005, however, he was served with a decision by the Secretary of State that he was to be deported following his release on licence from a 10 year sentence of imprisonment for conspiracy to import class A drugs. FAC |
His appeal against this decision to the asylum and immigration tribunal on human rights grounds failed. FAC |
On 25 May 2007 he was served with a deportation order. FAC |
On 25 June 2007 and 8 August 2007 further submissions were made on his behalf as to why he should not be deported. FAC |
The Secretary of State agreed to consider his reasons for seeking revocation of the deportation order, but she declined to revoke it. FAC |
Directions were then given for him to be removed from this country on 29 December 2007. FAC |
The respondent PE is a citizen of Cameroon. FAC |
He entered the United Kingdom clandestinely in August 2004. FAC |
On 19 May 2005 he applied for asylum. FAC |
The Secretary of State refused his application on 5 July 2005. FAC |
On 9 July 2005 it was decided that directions were to be given for his removal to Cameroon. FAC |
He did not appeal against this decision. FAC |
Before it was put into effect however he was sentenced to twelve months imprisonment for having a forged passport and using it to obtain work, to which he had pleaded guilty. FAC |
As a result of this conviction the Secretary of State decided to make a deportation order against him. FAC |
He appealed against this decision on asylum and human rights grounds, but his appeal was dismissed. FAC |
The deportation order was signed, and it was served on him on 10 January 2007. FAC |
On various dates thereafter his representatives made written representations on his behalf for the decision to be reconsidered. FAC |
They claimed that he had been and would be persecuted in Cameroon on account of his homosexuality. FAC |
The Secretary of State declined to reconsider her decision, as in her view his further representations did not amount to a fresh claim within the meaning of rule 353 of the Immigration Rules. FAC |
He appealed to the tribunal against the Secretary of States refusal to revoke her decision to make the order. FAC |
The tribunal held that this decision was not an appealable decision. FAC |
On 27 December 2007 BA applied for judicial review of the directions for his removal. FAC |
He contended that he had a further in-country right of appeal. FAC |
It was no part of his case that his further representations amounted to a fresh claim under rule 353 of the Immigration Rules. FAC |
PE had already applied for judicial review of the decisions that had been made against him. FAC |
He claimed that he had a right of appeal against a refusal to revoke the deportation order, that this right was exercisable in-country and that in any event the representations amounted to a fresh claim under rule 353. FAC |
Permission was given in each case, and the applications were heard together by Blake J: [2008] EWHC 1140 (Admin); [2008] 4 All ER 798. FAC |
The judge held that what determined whether there was an in- country right of appeal was whether or not the Secretary of State was satisfied under rule 353 there was a fresh claim: para 62. RLC |
In his opinion neither claimant had an in-country right of appeal simply by virtue of having made a protection claim or having made fresh representations supported by different material: para 74. RLC |
In PEs case he quashed the decision that his was not a fresh claim and remitted it for redetermination by the Secretary of State. RLC |
He said that if the Secretary of State were to conclude that the claim is a fresh one but it was still refused, PE would have access to a right of appeal in-country before removal. RLC |
But if it was not a fresh claim, his right to appeal would have to be exercised from abroad. RLC |
As Sedley LJ observed in the Court of Appeal, this conclusion raises the same issue as that raised by BAs appeal: [2009] EWCA Civ 119; [2009] 2 WLR 1370, para 4. RLC |
Rule 353 of the Immigration Rules, on which the Secretary of State relies, is headed Fresh claims. STA |
It provides: 353. STA |
When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. STA |
The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. STA |
The submissions will only be significantly different if the content: (i) had not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection. STA |
Rule 353A, which needs to be read together with rule 353 to complete the picture, provides: 353A. Consideration of further submissions shall be subject to the procedures set out in these Rules. STA |
An applicant who has made further submissions shall not be removed before the Secretary of State has considered the submissions under paragraph 353 or otherwise. STA |
This paragraph does not apply to submissions made overseas. Ratio |
The 2002 Act STA |
This Act was passed in the light of strong pressure to streamline appeals against immigration decisions in the light of objections that were taken to the large number of repeat claims. STA |
Part 5 of the Act provides a general right of appeal against an immigration decision to an adjudicator: section 82(1). STA |
The expression immigration decision is defined in section 82(2). STA |
It includes, among other things, a decision that a person is to be removed from the United Kingdom who is here unlawfully, a decision to make a deportation order under section 5(1) of the Act and a refusal to revoke a deportation order under section 5(2): sections 82(2)(g), (j) and (k). STA |
Having defined this expression, the statute proceeds to lay down an elaborate system for the handling of appeals. STA |
Section 84(1) provides that an appeal under section 82(1) against an immigration decision must be brought under one or more of the grounds specified in that subsection. STA |
They include the following ground, with a view to ensuring that the United Kingdom complies with its international obligations: (g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdoms obligations under the Refugee Convention or would be unlaw... |
This is the ground on which both BA and PE rely. STA |
Section 92, as amended, provides: (1) A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies. STA |
(2) This section applies to an appeal against an immigration decision of a kind specified in section 82(2)(c), (d),(e), (f) . . . STA |
and (j). STA |
(3) This section also applies to an appeal against refusal of leave to enter the United Kingdom if (a) at the time of the refusal the appellant is in the United Kingdom, and (b) on his arrival in the United Kingdom the appellant had entry clearance. STA |
(4) This section also applies to an appeal against an immigration decision if the appellant (a) has made an asylum claim, or a human rights claim, while in the United Kingdom, or (b) is an EEA national or a member of the family of an EEA national and makes a claim to the Secretary of State that the decision breaches th... |
The respondents case is that section 92(4)(a) confers a suspensive in-country right of appeal unless the appeal has been certified under either section 94 or section 96 of the 2002 Act. FAC |
It is suspensive because it suspends the operation of the immigration decision appealed against until the appeal has been disposed of. FAC |
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