Harassment from neighbour by illegal construction

Sir, I’m a defence personal and posted in West Bengal. I am facing harassment from neighbour by his illegal construction. I have a house in Delhi where my father is living alone. Two of my neighbours are harassing my father by doing illegal construction in the proximity of my house. Recently they dug the land along with the wall of my house for laying their water pipeline. They are also threatening my father because they have many contacts in local police. Please help.

You may file a complaint to the concerned officer in the Delhi Development Authority against such an illegal construction. Your neighbour cannot construction his house in the contravention of sanctioned plan. Every construction within the territory of the development authority must be carried on after getting the approval from the competent authority.

The owner cannot change the site plan as per his wish. If the DDA has sanctioned his house plan, then they are bound to construct their home according to the plan. Every house plan has details about the construction of water and sewage facility.

Also read: What to do if neighbour stops the construction work?

Section 14 of the Delhi Development Act 1957 says that "After the coming into operation of any of the plans in a zone, no person shall use or permit to be used any land or building in that zone otherwise than in conformity with such plan."

The concerned authority takes necessary action under section 31 if the construction violates the approved plan. Section 31 empowers the officer of the authority to stop the further development along with prosecution of the owner.

Approach the DDA

Therefore, you should file a complaint before the DDA for taking appropriate action against such a disturbance. Your neighbour doing construction work which may create an imminent danger to your home. This may also cause irreparable loss to your house. So you should approach the DDA to stop the illegal construction.

Subsection 2 of Section 31 further empowers the DDA to forcefully stop the construction. DDA can take the assistance of the police force to remove the person from the construction site who has been doing construction. It can also remove the workers from the place of construction through police assistance. 

In the present situation you can avail alternative legal remedies. So you should file a complaint before the sub-divisional magistrate under section 145 of the Code of Criminal Procedure (CrPC). The alleged construction has a tendency to cause a breach of peace.

Also read: Injunction against unnecessary disturbance

Section 145 crpc empowers the executive magistrate to take immediate action necessary for the prevention of breach of peace. The illegal construction will cause a breach of peace. The Magistrate has the power to stop the construction work as well as take a bond from your neighbour under section 107 CrPC for keeping the peace for one year. 

File complain against threatening

You said that he has good contact in the police department. Therefore, you are facing harassment from your neighbour. So you may file a complaint before the Metropolitan Magistrate under section 200 of CrPC for the offence of criminal intimidation. They are committing a crime which is punishable under section 504/506 of the Indian Penal Code (IPC).

The magistrate has vast power under Section 200 of CrPC. If you produce sufficient evidence to the court towards threats then he may summon them as accused. Thereafter, a trial will begin against them. Thereby you can avoid police interference in your case. 

You have the above said remedies against the ongoing illegal construction. However, there is more than one remedy available, but first of all, you should avoid the harassment from your neighbour hence, lodge a complaint against him. Then file a complaint before the vice-chairman of the Delhi Development Authority. The authority has vast power to stop the illegal construction and compel them to do construction as per the sanctioned plan.

If you are receiving threats from them, then you can file a complaint under section 200 CrPC. Interference of Magistrate may avoid the police influence in your case. If the Magistrate satisfies from the evidence he may take cognisance and issue process against the accused.

Tenant denied title and ownership of landlord

Sir my tenant has filed a civil suit in the court of senior division Bhatinda. He claimed that he got interested in the property during the tenancy. I am NRI and used to visit India 4-5 times in a year. I never alienated my property to anyone. He filed that suit after my receiving notice to vacate my house. I have been issuing rent receipt in each month.

He had been paying rent for the last 6 years but after the notice, past 7 months, he refused to pay rent and he filed this false case. I want to construct a hotel on the land so I need this property for my personal necessity. Please advise.

It is not disputed that he is your tenant. So a jural relation i.e. landlord and tenant has been established. It’ll be impossible for him to disprove this jural relation in the court. According to section 13 B of Punjab urban rent restriction act, the tenant may vacate the premises for his personal necessity.

It is always presumed by the law that once a tenant pays the rent to his landlord then he cannot afterwards deny it. This conduct of tenant confers him a legal obligation to pay rent and also confers a legal right to use it as long as he pays the rent.

If tenant denied the title of the landlord then a special provision is laid down by the law i.e. it is must for the tenant to first surrender the possession of the property back to the landlord. He cannot enjoy both benefits simultaneously, on one hand, he opposes the title of the landlord and in another hand live in the rented house.

Section 116 of the Indian Evidence Act embodied that tenant in the occupation of the premises cannot deny the title and ownership of the landlord. The doctrine of estoppel, which is the basis of section 116, this doctrine will not allow the person to say one thing at one time and opposite of it at another time.

Contest the suit and prefer written statement with the plea that tenancy is not disputed, you have personal necessity and burden to disprove ownership and title of landlord shifts upon the plaintiff. In these circumstances, you’ll win this case.

Terminated my service arbitrarily during medical leave

Sir/Mam, Without setting up a medical board, I ( permanent govt employee) be terminated during medical leave by saying that You are not joining to the office (dies nun and not release my salary past 3 months) but regular medical certificate (issued by govt authority CGHS and govt Hospital and surgeon ) is sending in office by registered post and medical leave (146 days) and earned leave (152 days) is pending in my account? please help me, what to do?

Your service cannot be terminated without giving you a chance to hear. Audi alteram partem means “listen to the other side”, or “let the other side be heard as well”. It is the principle of natural justice, it is mandatory for the administrative authorities to comply with this principle in their every decision. Decision taken in contravention of this rule may render it void.

However, it is not clear from your question but I think that you have taken leave without submitting medical certificate thereof medical board had not been setup. Non-submitting leave application with medical certificate or submission of it after some delay is a technical mistake it shall not constitute a valid ground for termination of service. You have not mentioned that you are an employee of central or state government but in each case, basic principles are the same.

They leave having been taken on bona fide reason i.e., an illness so it is not mandatory to submit medical documents at or during medical leave. In Bhagwan Lal Arya v. Commissioner of Police, Delhi (2004) 4 SCC 560: decided by the supreme court that:

It is not clear from the documents that the appellant is a habitual absentee…….. He had to proceed on leave under compulsion because of his grave condition of health and, therefore, the punishment of removal from service is excessive and disproportionate……… We are of the view that the punishment of dismissal/removal from service can be awarded only for acts of grave nature or as the cumulative effect of continued misconduct proving incorrigibility or complete unfitness for service. Merely one incident of absence and that too because of bad health and valid and justified grounds/reasons cannot become the basis for awarding such a punishment.

You should file a writ petition before the High Court and challenge the decision taken by the administrative authority. This decision shall not be sustained in the court because it is not reasoned, arbitrary and in contravention of basic principles of administrative law. There is a catena of judgments passed by the Supreme court towards the termination of the government employee. Definitely, you’ll get favourable order.

How can I adopt a son without permission of husband

I want to adopt a male child but my husband does not agree with me and he is refusing to adopt any child. I’m married in the year 1999 and due to some reason, I cannot beget a child. I used to live alone because my husband is working at a senior management post in a reputed private company. What is the legal provision regarding adoption? Can I adopt a child without the consent of my husband?

You cannot adopt a son without the permission of your husband. Son has special importance in Hindu mythology. Begetting a son is one of the three debts. Hindus desire to have a legitimate “Auras” son for their spiritual benefits. Son is called “PUT” means a person who delivers his father from hell to haven. If it not possible to beget a child then this gap can be fulfilled by way of adoption

You cannot adopt a son without the permission of your husband. Son has special importance in Hindu mythology. Begetting a son is one of the three debts. Hindus desire to have a legitimate “Auras” son for their spiritual benefits. Son is called “PUT” means a person who delivers his father from hell to haven. If it not possible to beget a child then this gap can be fulfilled by way of adoption.

You cannot adopt a son without the permission of your husband. Son has special importance in Hindu mythology. Begetting a son is one of the three debts. Hindus desire to have a legitimate “Auras” son for their spiritual benefits. Son is called “PUT” means a person who delivers his father from hell to haven. If it not possible to beget a child then this gap can be fulfilled by way of adoption.

Now theory and philosophy behind adoption have totally changed. Law does not require to perform any special ceremony like “attack home” at the time of adoption. And it is also necessary to adopt a child for a spiritual purpose. Hindu wife cannot adopt a son/daughter without the permission of the husband. If the husband has renounced the world, incapable to give permission, or converted into another religion then the permission of the husband is not necessary.

However after enactment of Hindu adoption and maintenance act 1956, now a child may be adopted from near relatives. Once a child is adopted he has the same rights and liability as a natural son but he cannot solemnize marriage with any person to whom he could not do so if he is not adopted. Age of the adopted son should be below the 15 years and he must be Hindu. Adoption deed should be executed from the district court.

Without solemnized marriage is valid or void

My marriage is not solemnized as per ceremonies of Hindu marriage. But we have been living together for 18 march 2004. We have two children and my husband is working abroad. We came to know that without solemnization of marriage between two Hindus renders their marriage void.

If it is right then my children should be treated as an illegitimate child and myself is a concubine. Sir what is the legal provision in this subject and is it possible for my husband to refuse maintenance and leave us at our destiny.

However, it is required by section 7 of the Hindu marriage act that marriage between two Hindus shall be solemnized by any of the ceremonies prevalent in their family. Devoid of valid ceremonies makes marriage void. But in recent changes in our society and demand of society, now it may not be possible to ignore a good section of our society to let them away from any rights and legal remedies.

Law always presumes in favour of marriage. Marriage is the sacramental act and it forms the foundation of society. In Madan Mohan Singh vs Rajni Kant (2010) 9 SCC; held by the supreme court that ” the law always presumes in the favour of the marriage and against concubinage. When a man and woman have cohabited continuously for a number of years.

However such presumption is rebuttable but until it is rebutted presumption always be taken in the favour of valid marriage.” In Bharatha Matha vs Vijai Ranganathan (2010) 11 SCC it is held by the supreme court that children out of such marriage are legitimate.

You have been treated as a legally wedded wife and your children are legitimate. Your husband is bound by law to perform his all marital responsibilities and children have all the legal rights in his properties. You may claim maintenance.

My wife may file false case under section 498 A

Dear Sirs/Madam, I got married on 12/02/2015..from day one we have a compatibility issue. I tried to sort it but I got failed. She is adamant; she misbehaves with my family member whenever they come to my home. She did not cook food. Recently we quarrelled over the very petty issue of not boiling water. Then she consumed phenol.

I am into a government job. I am very scared. I cannot live with her under such circumstance because she may do the same thing again on a small day to day issue. The Police station also wants me to settle down. Now, what should I do? She also takes sleeping and antidepressant tablets.

I have only a few receipts of it. She was on medication of the same but her parents did not tell me. Now, what should I do? Please help. I also gave an application to the SP office regarding the said incident of phenyl consumption and threatening. Please suggest what I should do.

You should convey her activity to her parents. Involve some independent person from both sides and try to settle this issue amicably. Interference of police may yield bitterness in your relation. You should keep all the record towards the consumption of medicine and doctor’s prescription. Don’t ablaze this condition from your side. Let her parents decide how to treat her daughter.

Her parents either may reconcile this issue or impose false allegations. In the latter case, you should prepare to contest the case. There is no remedial provision in our legal system to prevent the unjustified act of wife. Filing of the false case is very common and easy in our country. But our Supreme court has given some direction towards investigation in cruelty related cases.

In Aneesh Kumar vs State of Bihar (2014) SCC that police can’t arrest any member of complainant’s in-laws family merely on the filing of the complainant. Police are bound to send a notice under section 41 A crpc for the personal appearance of all the accused and record their statement. If a police officer has reason to believe that such an offence has been committed then arrest may be made after permission of the court. However, the above-mentioned case provides some safeguards but it is insufficient in the current situation.

Your mother may file a complaint under the Domestic Violence Act, stating cruel behaviour her daughter’s in law. You should try to leave her in parents home for some days and give her some time to decide married life. If she again attempts to suicide, you must register a complaint before the first class magistrate under section 309 IPC otherwise she may take it as a ground for filing false case against your family.

Bank initiating process of auction

Sir, my son has taken a loan from Bank of Baroda and he failed to repayment so the bank is now initiating proceeding against me for recovery of the loan. I was the guarantor of the loan. I am 65 years old and this is my one and only house. Bank filed a case before DRT. Now recovery officer came to my home and said that your house shall be auctioned in next month.

I am very afraid and want to save my home. How can I liable for the repayment of loan because I was the only guarantor? Is there any provision to stop this auction process and settle the loan with the bank?

You are liable to repay the loan amount because you are the guarantor of the loan. According to section 128 of the Indian Contract Act, guarantor’s liability is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract.

If there is any provision in the contract that guarantor shall not be liable for any legal proceeding then you can object this proceeding. But it seems that there is no such provision in agreement because DRT accepted this proceeding and initiated the process of recovery.

It is the discretionary power of the bank to initiate proceeding against the borrower or guarantor of the loan. In the Ram Kishun vs State of Uttar Pradesh, (2012) 11 SCC; held by the Supreme court that it is prerogative of the creditor alone whether he would move against the principal debtor first or surety to realise the loan amount. So you cannot object this proceeding. Proceeding of DRT is legally valid.

You may file an application either before DRT or Permanent Lok Adalat for one-time settlement of the loan. If creditor and borrower agree to settle the loan through extra-judicial proceeding then lok Adalat will pass an award according to the agreement between creditor and borrower. This the only option you may avail.

Neighbour causing nuisance in my property

Respected Sir / Madam, I have s strange problem due to my neighbours as they keep hammering out our flat with a hammer and same has been done for the last 3 years. I have made NC to the local police station along with NC for the last 3 years I am also having Video record clearly showing the hammer outside my house and on various occasion, I got a recording with me.

Local Police of Borivali west is not able to take FIR not any action because the family has got some political pull with them. I have got various NC for past years and video recording with me on various occasion. also, my parents both are sr. citizen. 

I want to know any strong action is possible from Court order as the local police have no say in this as per them this is a small issue. My parents are really tired of this for the past few years. All this is been done so that we agree to there terms of redevelopment and agree to the builder they want to hire. Thanking you and Regards.

You may initiate criminal and civil proceedings simultaneously. You may file a complaint before the sub-divisional magistrate, under section 133 Cr.P.C., for removal of the nuisance. Your neighbour is causing nuisance and in our legal system, both civil and criminal remedies are available.

After filing aforesaid criminal proceeding you may file suit for removal of nuisance, damages caused by such act of nuisance and temporary injunction.

In Gulam Husain Mirza vs Laxmidas Premji Alias Saga AIR 1983 Bom: any act or omission which has been causing annoyance or damages to any person in the enjoyment of property is called nuisance and it is actionable.

In Bamford v. Turnley, 31 L.J.Q.B. 292; an act comes under nuisance or not entirely depends on the surrounding circumstances and must necessarily be an actionable nuisance.

In light of the aforesaid judgments, any act which causes disturbance or obstruction in the enjoyment of property constitutes a nuisance and it is actionable. If nuisance caused to public at large then it is an offence under IPC but a particular person is affected from such act then it is called a private nuisance, however, it is not the offence but civil proceeding may be instituted for damages and removal of the nuisance.

Institute a civil suit, under section 91 CPC, against him. Video recording is a good piece of evidence. It is relevant and it is admissible under the Indian evidence act. You have to prove that your neighbour is doing a wrongful act. Damage or loss or inconvenience or annoyance caused to you from his wrongful act.

Such inconvenience or discomfort is more than mere delicacy. The court may pass a temporary injunction on the face of the record, your video/audio recordings are sufficient evidence to get a temporary injunction or stay order immediately from the court.