I was Bataidar of the agricultural land of Solan, Himachal Pradesh. I had been Bataidar from 1967 to 1977 and thereafter I purchased that land from the owner. There is a common well for irrigation of land. When I was bataidar I used that well for irrigation but when I became the owner of the land my previous landlord objected to using that well. He filed a civil suit for the injunction order for stopping me to use that well.
I have right to irrigation of agricultural land because due to irrigation I have paid more money otherwise the land would be sold on less price. His suit is dismissed by the court of the junior and senior division. Now he filed an appeal before the high court. Section 36 of the H.P. Tenancy and land reform act gives such right to me.
According to section 36 of the Himachal Pradesh Tenancy and land reform act, the tenant has the right to use all the facilities available before commencement of the act. This act came in force in the year 1972 and your tenancy had been in existence from the year 1967.
When you had right irrigated your land from that common well then the landlord has no right to curtail or terminate use of well water enjoyed by tenant immediately before the commencement of this act. Subsection 3 of section 104 of the Himachal Pradesh Tenancy and land reform act also protect your right. According to this section, you have all the rights, title and interest in respect of the land which was enjoyed by the landowner immediately before sell or transfer of land.
This common well has been used by the landowners for irrigation of their lands. So you have accrued that interest and right by the taking ownership of that land. All the incidental and contingent rights of the property are transferred to the purchaser at the time of sell or transfer of property, so you got the right to irrigation of agricultural land from the landowner.
You should not be afraid of the High Court because it is a court of record and not need to re-appreciation of evidence in deciding right of the parties.
My company had signed a contract with another company for digging the land for construction of railway lines and rail bridges. At the time of the contract, all the terms and conditions were finalised by the other company. Other company published a tender for the construction work.
My company was the only one company selected for that work through tender. It is mandatory for the company to take the permission of the forest department which was refused by the said department.
So I want cancellation of the contract on the ground that when permission is rejected by the government so work cannot be initiated but the other company file a suit for breach of contract and compensation for the cancellation of the contract. What should I do?
According to your case, you have the right to cancel this agreement because the performance of the contract is based upon permission of the forest department for initiation of work. However, tender is issued and completed according to the law but at that time it might be presumed that the forest department may give permission so no saving clause was included in the contract.
This contract is frustrated because not getting permission from the forest department. Section 56 of the Indian Contract provides a right to cancellation of the contract on the ground of frustration. Frustration is an act outside the contract due to which the completion of a contract becomes impossible.
After the parties have concluded a contract, events beyond their control may occur which frustrate the purpose of their agreement or render it very difficult or impossible, or as even illegal, to perform. You should take a plea of frustration because permission from the forest department is an event which is out of your control. And permission was a sine qua non for the performance of the contract.
In Nirmala Anand vs. Advent Corporation Pvt. Ltd AIR 2002 SC: it is held by the supreme court that the competent authority has been moved and application for consent or sanction have been rejected once and for all and such rejection renders impossible the performance of the contract due to frustration under section 56 contract act. The relief must be given to the party and keep them in the same position as they were before the contract.
When a contract becomes impossible to perform due to its frustration then it cannot be enforced by the court. You shall not be liable to pay any compensation.
My daughter & Son-in-Law are not finding compatible with each other for the last few years and are on the verge of breaking. They are married strictly as per the customary practice of Lingayat community (Fully discussed in the Supreme Court decision referred below) duly performed by a community priest.
My advocate advised that the Supreme Court in a recent decision rendered in the case of Shakunthala Bai and another Vs. L.V. Kulkarni and another reported in AIR 1989 S.C. Page 1359 has upheld the customary divorce prevailing in Panchamasali Sub-sect of Lingayat community, hence they can take divorce, or dissolve their marriage as per their custom without recourse to the Court of Law.
Asked from: Karnataka
It is well established by a catena of judgments of the supreme court and many High courts that customary divorce is legally valid if the prevalence of such customary divorce, in the community to which parties belong, is fully established [Subramani And Ors vs M. Chandralekha AIR 2005 SC].
The customary divorce takes its validity from section 29(2) of Hindu Marriage Act as “Nothing contained in this Act shall be deemed to affect any right recognized by custom or conferred by any special enactment to obtain the dissolution of a Hindu Marriage, whether solemnized before or after the commencement of this Act.”
Yamanaji H. Jadhav v. Nirmala, [2002] 2 SCC 637; Supreme Court held that “Public policy, good morals and the interests of society were considered to require and ensure that, if at all, severance should be allowed only in the manner and for the reason or cause specified in law, with only exception where it is recognized by custom.” If a custom prevails in the community which provides an alternate process of divorce which is not contrary to the law of the land is valid.
Shakuntalabai And Anr. vs L.V. Kulkarni And Anr AIR 1989 SC 1359; in this case, the issue was the validity of customary dissolution of marriage as per the custom of “Udiki form of marriage”. Supreme court upheld the custom of Udiki prevalent in Panchamasale sect of Lingayat community.
You may go with the custom and prepare a divorce deed. Such deed should be signed by the parties to the marriage in presence of two witnesses and thereupon get registration of the deed. Such deed is legally valid and acceptable in every court as evidence of dissolution of marriage. Section 13-B of the Hindu Marriage Act also provides a remedy to dissolve marriage by the mutual consent of spouses.
There is a waqf property which is rented on Rs 5 per month to Moulana ******* Tenant want to take absolute possession over the rented property. In this course, he attempted on many forged documents but ultimately he fails. He filed a case before the waqf tribunal for the title of the property. I filed a case before waqf tribunal for his eviction. The case is admitted by the tribunal but my case is dismissed on the ground that tribunal has no jurisdiction to hear this case. Both cases are in respect of same property but one is accepted ant other is rejected, I want to file a writ before the High Court please suggest. Thanks in advance to all judges and lawyers.
Section 83 of the Waqf Act 1995 provides rules for constitution of waqf tribunal, it is clear from the section that state government shall by notification on official gazette constitute a waqf tribunal for the determination of all the disputes regarding waqf property. And section 85 of the said puts a bar on the jurisdiction of the civil court in the determination of such disputes.
Thus it is clear that if any dispute arises regarding the dispute of waqf property the only tribunal has jurisdiction to hear. Your tenants right is directly connected with the title of the waqf property so only waqf tribunal has jurisdiction to hear. But in your case dispute of tenancy is another and distinct matter from waqf property.
The tenancy is connected with the civil right of the tenant, he cannot be evicted from the rented property in contravention of due process of law i.e. rent control act. However, the property belongs to waqf but disputed right is a civil right so it is purely a civil nature suit which shall exclusively be heard by the civil court [West Bengal Waqf board vs Anis Fatma Begum AIR 2010 SC].
So you should avoid filing any writ in High Court but you should file a regular suit in civil court.
Five shops were allotted by development authority in the year 2001 and I deposited almost 50% amount but after 3 years of allotment construction work is stopped by the authority by saying that permission of the government regarding the development area is under review. I have stopped to pay a further instalment, the authority sent a notice to me with a direction to deposit due amount in next 6 months otherwise allotment will be concealed. I want to file a case before consumer forum so I want to know whether my case will be maintainable or not.
Yes, your case is maintainable before consumer forum. you may file a case for deficiency of service, enlargement of time to pay the instalment and penal interest on the amount already paid.
Development authority which is allotting sites with the promise of development is amenable to the jurisdiction of consumer forum in case of deficiency of service as per the agreement [Karnataka Industrial Authority vs Nandi Cold Storage (P) Ltd. (2007) 10 SCC].
Section 2(1)(O) of the Consumer Protection Act defines the word service and services provided by the development authority comes under this definition. Development authority is an agency of government so you can file a case against the government for the compensation [LDA vs M. K. Gupta (1994)1 SCC].
In the above-mentioned case of LDA, it is also held that when a statutory authority develops lands, plots or houses for the benefits of common man it is as much service as by a builder. If service is defective then it would be unfair trade practice as defined under section 2(1)(O) of Consumer Protection Act.
But you must pay instalments because stopping of payment is declared unfair and illegal in Municipal Corporation Chandigarh vs Shantikunj Investment Private Limited (2006) 4 SCC.
I booked a radio taxi on 25 September 2015 from Amousi airport to Gomti Nagar. In a midway taxi driver told that his friend is waiting at VIP road and I want to go with him but I can arrange another radio taxi who may drop you at your destination. I agreed and he arranged another radio taxi.
That driver was drunk and he running the car in a rash. I met an accident and got a fracture in my chin. He drifts his car in the truck and blown a screamed sound from the engine. Sudden hitting in the truck and drifting in divider created a huge shock in the car and myself struck with the dashboard.
I complained about his actions on the customer care number. This radio taxi is operated by a corporation which is an agency of the Uttar Pradesh government. Can I get any compensation from the government? What is the procedure for compensation? Is there any penal provision for car driver?
When the government performs any act through his agency then the government is vicariously liable for the tortious act of his agent. Rash driving is a negligent act and any damages caused to anyone from this act is entitled to get compensation from the government. The corporation cannot take a defence that he has no control over the driving of the car because the driver is an independent contractor [Rajasthan SRTC vs Kailash Nath Kothari AIR 1997 SC].
This act of government does not come under a sovereign act because running a radio taxi is a non-sovereign act and any person can run this business after taking appropriate license. The commercial activity of government is purely a non-sovereign act and government is liable under the law of tort to compensate a person the same as a company or private person is liable. [LIC vs Asha Goel AIR 2001 SC].
You may apply to consumer forum because it gives swift remedy than regular civil court and no court fee is applicable. You can get compensation for mental agony, the expense of case, expense on medical treatment etc.
Sir, I want to know what is the property right of a son in dayabhaga? My father received 150 decimal land from my grandfather and he is refusing to give me a share in that property. He wants to give this ancestral property to his son of 2nd marriage, therefore, I am living separately from my joint family property. Please let me know the law regarding my right or interest in dayabhaga ancestral property or joint family property?
As per the Dayabhaga law of inheritance, the son does not acquire any interest in the ancestral property by birth. His right in property accrues immediately on the father’s death. In other words, after the father’s death, the ancestral property devolves upon the children. The estate will devolve only when the father dies intestate, i.e. without executing any Will.
Whether a son has interest or right in the ancestral property of Dayabhaga
Since the son has no interest in the ancestral property until the death of the father, therefore, he cannot bring a partition suit. Hence, there could be no coparcenary between a father and son. [Gouranga Sundar Mitra v. Mahendra Narayan Mitra, AIR 1927 Cal 776]
In the Dayabhaga law, the father is the absolute owner of all properties. No question of partition arises during his lifetime. Satchidananda Samanta vs Ranjan Kumar Basu And Others AIR 1992 Cal
The Dayabhaga does not create a concept of joint family property between the father and the son. Because so long as the father is alive, he is the master of all wealth.
Property right of Son
Son does not acquire any interest in the ancestral property by birth, therefore, he cannot demand a partition of such property from the father. As well as, the son cannot call for an account of the management thereof from the father — [CIT vs Babubhai Mansukhbhai AIR 1977 Cal].
The right of partition opens immediately after the death of the father. Therefore all children get right in the property. They have equal right in the property hence they can partition the property.
Thus it is apparent from the above discussion that you have no interest in the property. your father is still alive, and he is the absolute owner. The concept of joint family property does not find in the Dayabhaga School of Hindu law.
You cannot get father’s properties (ancestral or self-acquired) in his lifetime. You have no right to claim partition or injunction because of lack of your interest in the property.
Our company has three directors. My wife was also a director for sometimes but she resigned from that post, and her resignation accepted in general meeting. One of our shareholder (complainant) has a company in Jharkhand, and he is also a supplier of some goods from our company.
He supplied some goods and made payment through cheque. Total of 238 cheques has issued in the last four years. Thirty cheques were bounced by the bank on the ground to stop cheque payment. My wife issued all those cheques. After her resignation, I stopped them. Therefore, cheques became bounced.
He has some disputed with our company, and for setting his score, he filed this complaint under section 200 crpc for cheque bounce case. He knew that my wife had resigned from that post. I want to challenge this complaint.
According to the facts of your case, the offence under section 138 of the Negotiable Instrument Act has been committed by the drawer of those cheques. Section 200 of the Code of Criminal Procedure (CrPC) empowers the Magistrate to take cognisance of the offence on the complaint. However, the Magistrate, at this stage, does not appreciate the evidence to determine that crime has committed.
The Magistrate admits the complaint if the documents or evidence adduced along with the complaint prima facie show that offence has made out against the accused. After that, Magistrate may issue process (summon or warrant) against the accused. The magistrate may postpone the issue of process against the accused if he thinks that some inquiry or investigation is necessary for deciding whether there are sufficient grounds for proceeding.
If the Magistrate does not satisfy that there is sufficient ground to issue process, then he shall dismiss the complaint under section 203 of the CrPC.
How to challenge the complaint
When the Magistrate issued the process against the accused, he cannot take it back. The Code of Criminal Procedure does not provide the power of review so the Magistrate could not review its process or cancel the summon or warrant.
If the court has issued the process, then you cannot file any recall application under section 203 CrPC. In Adalat Prasad v. Rooplal Jindal, (2004) 7 SCC 338 the Supreme Court held that if the Magistrate did not dismiss the complaint and issued process, then the accused cannot approach the court under section 203 CrPC for dismissal of the complaint because the stage of section 203 has already over.
Hence, you cannot challenge the complaint under section 203 of the CrPC. The court does not hear the accused at the stage of section 203. The accused has no role at this stage (Bholu Ram v. State of Punjab, (2008) 9 SCC 140)
In the absence of the review power, you can challenge the complaint under section 482 CrPC. You may invoke the inherent power of the High Court under section 482 CrPC to do justice in your case (Iris Computers Ltd. v. Askari Infotech (P) Ltd., (2015) 14 SCC 399).
If you have sufficient reason to stop those cheques, then no offence is made out under section 138 of the NI Act. If you have documentary proof that there were some adequate grounds for stopping the payment, then the High Court may quash the complaint under section 482 CrPC.
Our land records are fabricated by the revenue officers for providing illegal relief to some persons who have more than 18 acres of lands. When I examined my revenue record on taluka by giving application for duplicate record of my lands, that officer was trying to delay my application.
He said that there are no such records but after persuasion of this matter he showed my revenue records. My all the records are now replaced by some other persons. Records show that I have grant sublease to them for an uncertain period.
When I shared this fact to my neighbours they are also examined their revenue record and they found that there is Fabrication in revenue record by revenue officers. Now we want to initiate legal proceeding against them. What legal step should be taken by us?
Under section 147 and 148 of the Land revenue code of Maharashtra, revenue officers are bound to maintain all the revenue records truly and correctly. Those sections mandate legal obligation upon him and breach of this act is punishable under section 348 of said act.
If revenue records show that land is on sublet to those persons then you should take duplicate copies of Land account from the lethal. Because lethal is bound to present a local survey of the land and without his survey, no alteration can be possible inland revenue records.
When there is any transfer of title or right in respect of agriculture land collector is bound, under section 296 of the land revenue act, to keep all that records. It is a clear case of a conspiracy by those persons got alteration in revenue record for their benefits and the revenue officers.
Fabrication cannot be taken place without collusion with revenue officers. You should file FIR under section 466/468/471/477- A/120-B/109 IPC and also present an application before the anti-corruption bureau.
Fabrication of public document is an offence punishable under section 466/468/471/477-A IPC and there is a conspiracy with revenue officers so it is punishable under section 120-B. Officers committed abatement of offence which is punishable under section 109 IPC. If the police officer refuses to write FIR you should approach to the court under section 156(3) crpc.
I filed an eviction suit for eviction of the tenant on several grounds and non-payment of rent is one of them. The suit is filed under section 12(1); 12(3)(a); 12(4) Bombay rents hotel and lodging-house rent control act 1947. The tenant has not been deposited due rent on serving many notices to him in the last three years.
I need that house for residence because I am about to retire from a job. On repeated notice to him he reluctant to pay rent and also seek possession on the house by hook or crook. He complained in society about stopping basic facilities in house, demanding undue money for various purposes.
I want to know that if he’ll deposit due rent at any stage of proceeding can he get the protection of section 12[3][a] of said rent act?
The tenant has two opportunities to protect himself from eviction claimed on the ground of non-payment of rent. If tenant deposits due rent at the time of filing of a written statement or on the date of framing of issues he cannot be evicted. This provision is mandatory and the court cannot enlarge this opportunity on its discretion. You have to establish other grounds on which you claimed his eviction.
In Ratilal Balabhai Nazar vs Ranchhodbhai Shankerbhai Patel AIR 1967 SC; if there is statutory default or neglect on the part of the tenant, the landlord requires a right under section 12[3][a] to get a decree of eviction. But where the condition of said section is not satisfied there is a further opportunity given to the tenant to protect himself against eviction.
If the tenant did not deposit due rent on above-mentioned stages of proceeding he cannot protect himself from eviction by depositing due rent on the later stage of the proceeding. This is a mandatory provision and the court cannot give him another opportunity at any time after framing of issues.
At this stage, you should amend your plaint and plead his eviction on the ground of his failure to deposit due rent as required by section 12[3][a]. It is a preliminary issue and it shall be decided by the court under section 9-A CPC.
