Builder not providing parking spot as per the approved plan. Of the total parking slots allotted, two flats, 1503 and (705-6) are allotted spots on ‘humanitarian grounds.’ These two homes pay INR 2500+ per month for parking. Nominal parking rates in the building are Rs 200 per month. These houses with nominal parking rates have bought/included a parking spot as part of their main agreement itself. Currently no parking in the building is under stilt or in the garage. All cars are parked in the open and have no assigned/designated spots. In 2017, a SGM resolution was passed to take parking charges from flat 1503 (mine) as part of monthly maintenance. However, since Jan 2023, I have been asked to pay these charges in advance.
Parking charges have been paid up to September 2023 in two instalments. Both the above instalments have been paid under ‘delayed circumstance’ due to the ongoing discussions to add, A total of 45 parking spots have been approved by BMC K-Ward and 1 each has been made available to tenants/members in houses with carpet area above 70 M.sq. One of the two houses is mine, aka 1503. (can share the exhibit if needed) My question therefore is:
1. Can the builder and later the society make allocations against the BMC's approved list? 2. If yes, can I as owner and member of flat 1503 - question the MC/society and get my parking spot back? 3. Can the MC charge different rates for parking spots, those given via agreement and to those on 'humanitarian grounds'? How do I fight this and what precedences and legal recourse do I have? Details: I am the house owner. The house is in Andheri, Mumbai, Maharashtra The building has two banks - which have been allocated 10 instead of 7 spots as per BMC approved list (can share if needed).
The builder, as well as the society, cannot allocate parking spot in violation of the approved plan. If the BMC has approved 45 parking slots, each for the flat above the carpet area of seventy square meters, then the builder is obligated to allocate them accordingly along with the sale deed.
Asked from: Maharashtra
You are entitled to receive a parking spot for your flat 1503, as per the approval granted by the BMC. The allocation of one parking spot is an integral part of the sale deed if the carpet area of the flat exceeds seventy square meters.
According to Section 2(a-1) of the Maharashtra Ownership Flats Act (Act), the definition of a flat includes a garage (parking slot), which constitutes premises forming part of the building.
As per the approval given by the BMC, each flat above the carpet area of seventy square meters shall have a parking spot. Consequently, the parking spot becomes an integral component of the flat/apartment. Any breach of such approval contravenes the provisions of the Act, and therefore, an aggrieved person, such as yourself, can take legal action against the builder/society. Such an act is illegal and causes irreparable loss and injury to the flat owner, i.e., you.
Charging different fees for parking slot is a separate matter if the vehicles have been parked in common areas. The society/builder can charge varying fees if they are providing additional facilities. However, allocating common areas for exclusive parking is unlawful, as that area cannot be allotted separately.
Generally, the society charges extra fees for parking in common areas based on the rule of necessity (although it is illegal, it is done for the common interest of residents). If they are charging different fees for parking slots, such classification between different parking spots must be just, fair, and reasonable.
You can take legal action against your builder/society (as the case may be) either by filing a complaint with the appropriate authority of the BMC because they are violating the approved plan or by filing a complaint in the district consumer forum due to a deficiency in service on the part of the builder.
Related
Labours are frequently entering our premises without permission. My neighbor's plot is under construction, and the contractor and labours are frequently entering our premises without permission. They have also failed to clean up the construction materials and waste from our property. When I asked them to address this issue, the owner of the property used abusive language towards me and my family. Do you have any advice on how to handle this situation?
Asked from: Uttrakhand
The contractor and labours have no right to enter your premises without your permission. In this situation, you should lodge a complaint against them for the offense of house trespass. Simultaneously, you can also inform the Station House Officer (SHO) at the local police station about this incident.
If there is a possibility that this dispute may escalate and disrupt peace and tranquility, the SHO can submit a report to the Magistrate, requesting them to have the individuals involved in the trespass post a bond under Section 107 crpc. This bond will remain in effect for up to one year. If they continue to obstruct or interfere with your property, the magistrate can forfeit that bond and initiate appropriate legal proceedings against them.
Also read:
Can I seek quashing of FIR on expiry of limitation period? FIR was charged against me on 02/05/2019. I was called to the police station on 02/12/2019 and was released on station bail. They have charged IPC 354 D (stalking through email). But after which no response was there. Recently I got a govt job and when applied for a police clearance certificate I came to know the FIR is pending. The police have not filed charge sheet till date to my knowledge. Can I quash the FIR based on expiry of limitation period.
Asked from: Jharkhand
No, you cannot seek the quashing of an FIR solely on the basis of the expiry of the limitation for filing a chargesheet. The limitation period for submitting a chargesheet is applicable only when the accused is in judicial custody.
The limitation period for the submission of a chargesheet is provided for granting statutory bail to the accused under Section 167(2) of the CrPC. There is no provision in the CrPC that allows for the quashing of criminal proceedings due to the non-filing of a chargesheet within the stipulated period.
If the FIR contains a bald allegation or if no offense is discernible from the version of the FIR, you should consider approaching the High Court under Section 482 of the CrPC to seek the quashing of the entire proceeding. It appears that, given the nature of the offense, the allegations can potentially be substantiated through electronic evidence. If the prosecution is unable to retrieve any information related to the email, it is certain that they cannot establish your guilt.
Therefore, in this situation, it is advisable to seek the quashing of the FIR on the grounds of baseless and unsubstantiated allegations or the absence of any offense apparent from the context of the FIR.
Also read: Quashing of FIR
Question: My boyfriend raped me in the influence of narcotics drugs. Boyfriend had raped me after I said no to sex. I live in xxxxx, I was visiting my boyfriend and stayed at his flat at that time in xxx. We have been in a relationship of 1 year. We've had a physical relationship where we had consensual sex whenever we met. He had been under the influence of Marijuana (and I don't know what else) when he didn't respect my no and raped me last week. This has happened once before with him (also when he was on the same drugs, some months ago) but he promised that it won't happen again. He is a drug addict and takes it 2-3 times a week, at least for the last 5 years. What charges can I press on him?
Your boyfriend has committed rape which is an offence under Section 376 of the Indian Penal code. For the offence of rape, it does not matter that accused had sexual intercourse under the influence of drugs. Furthermore, it is also immaterial that accused and victim have had consensual relationship in past.
Absence of consent of the victim in alleged sexual intercourse constitutes offence of rape. If that consent victim was taken by the accused either by force or deception, then again it amounts to rape. Your case is strong enough to punish the culprit.
Therefore, you should immediately lodge a first information report against your boyfriend. Medical examination of victim is not mandatory at the time of lodging FIR. The statement of victim is enough to initiate criminal proceedings against the accused.
If you have any message from your boyfriend in which he had confessed his guilt, you should adduce those messages along with the FIR.
Question: Rectify khata number in khatauni. How can we rectify the khata number which has been wrongly mentioned. The land measurement is accurate including the disputed land.
You should submit an application to the Tehsildar for the rectification of the khatauni because the khata number that is reflected in the khatauni is incorrect. Provide some evidence regarding the incorrect khata number and attach it along with the correction application.
The Tehsildar shall conduct an inquiry either personally or through the lekhpal. After that, he may issue an order for the correction of the khata number if he finds that the khata number is incorrect.
Question: Wife intentionally delaying the trial of dowry case: what to do? It is almost nine years now and I am fighting a Dowry case against me. Although my defence is strong, the other party is prolonging this case by making excuses and playing the victim card in from the judge. What remedies I can take to fast track this case?
Your wife is intentionally delaying the trial of the dowry case by presenting herself as the victim. However, she knows that her case is false and frivolous. It seems from your case that the trial court is giving unnecessary adjournments to the prosecution. In this situation, you should approach the High Court either under Section 482 of the Code of Criminal Procedure (CrPC) or file a petition with the High Court under Article 227 of the Constitution of India.
Section 483 of the Code of Criminal Procedure, 1973, imposes a duty on every High Court to exercise continuous superintendence over the Trial Courts to ensure expeditious and proper disposal of case.
Article 227 of the Constitution also confers upon this Court the power of superintendence over all subordinate courts within its jurisdiction. The primary purpose of granting such wide supervisory powers to this Court is to remove obstructions that may impede the path of justice.
Obtaining unnecessary adjournments constitutes an abuse of the process of court. It is the solemn duty of this Court to prevent such abuse, rectify irregularities in the judicial process, and prevent miscarriages of justice.
Hence, you should avail any of the above-mentioned options to ensure the timely resolution of this case. The high court can direct the trial court to decide this case within a specified period, such as six months or any other period that the court deems appropriate.
If you have evidence to prove that the case is false and that the informant (your wife) has made false allegations, you can approach the High Court under Section 482 of the CrPC to request the quashing of the entire proceeding. This would be a preferable option if sufficient evidence has come to light that tends to demonstrate the case's falsehood.
Question: What actions should you take against an attempt to murder? My neighbour has attempted to murder in a land dispute. He along with others came to my house with firearms and started shouting, abusing and hitting my gate. When I came out to stop them from doing such a violence, they broke out and beat me with a club and sharp edge gandasa. I suffered some minor injuries on my arm, back and thigh. One injury on my head is severe. That is life threatening so I want to take proper legal action against them. Please suggest what actions I should take against them for an attempt to murder?
In such a situation you should immediately lodge an FIR against those persons. It is prudent to pursue appropriate legal action against those responsible for the offence of attempt to murder. This particular offence falls under the purview of Section 307 of the Indian Penal Code.
To establish a case of attempted murder, it is imperative to demonstrate that the accused had a clear intention or knowledge of causing fatal harm, resulting in injuries that could potentially lead to death.
You should lodge a first information report (FIR) against those persons under Section 307/323/325/504/506 IPC. For the offence of attempt to murder your medical examination is mandatory before lodging the FIR.
To establish a case under section 307 IPC, certain ingredients or elements must be present and proven in court. These ingredients typically include:
Intention to Kill
The accused must have had a clear and unequivocal intention to cause the death of the victim. This intention to kill is a crucial element of the offence.
Act of Violence
There must be a direct act of violence committed by the accused. It could be through the use of a weapon or any other means that could potentially result in the death of the victim.
Proximity to Murder
The act committed by the accused must be in such proximity to causing death that if it had been successful, it would have resulted in the victim's death.
Motive to cause death
While motive is not a primary element, it can be considered as corroborative evidence. It can help establish the accused's intent and motive behind the attempt to murder.
Causation of Injury
The accused must have caused an injury to the victim as a result of their actions. This injury should be more than trivial and must have the potential to result in death.
Knowledge of Likely Consequences
The accused should have known or been aware that their actions were likely to cause the death of the victim.
Injuries not sufficient to cause death
If the injuries you sustained are not severe enough to potentially result in death, or if they are of a general nature that typically wouldn't lead to a fatal outcome, then such injuries would not amount to the offense of attempted murder.
With the increasing dependence on digital communication platforms like WhatsApp, the legal implications surrounding the admissibility and reliability of such digital evidences have gained significant importance. This article sheds light on the nuances of using WhatsApp messages as evidence in courts, particularly focusing on the context of India, which has a rapidly evolving digital landscape.
1. The Legal Framework for Digital Evidence in India
Before diving into the specifics of WhatsApp messages, it's essential to understand the overarching legal structure governing digital evidence in India.
- The Indian Evidence Act, 1872: Section 65A and Section 65B pertain to the admissibility of electronic records. Specifically, Section 65B details the conditions under which electronic records can be considered as evidence. It requires a certificate to be attached to the electronic record, verifying its authenticity.
- Information Technology Act, 2000: This act was introduced to provide a legal framework for electronic governance and electronic transactions. It also discusses the admissibility of electronic records and prescribes penalties for tampering with them.
2. Admissibility of WhatsApp Messages in Court
The admissibility of WhatsApp messages, like all digital evidence, primarily hinges on their authenticity and integrity.
- Authentication: Before a WhatsApp message can be used as evidence, it must be proven that the message originated from the alleged sender and was indeed received by the intended recipient. This can be challenging, as messages can be manipulated or taken out of context.
- Section 65B Certification: For an electronic record to be admitted as evidence in court, it needs to come with a certificate as described under Section 65B of the Indian Evidence Act. This certificate ensures the message's source, the manner in which it was produced, and its custody is known and verified.
3. Challenges in Using WhatsApp Messages as Evidence
While WhatsApp messages can be potent evidence, they come with a set of challenges:
- Manipulation Concerns: Messages can be manipulated using various software tools, making it vital for courts to ensure their authenticity.
- Context is Crucial: Standalone messages might be misleading. The entire conversation thread or related messages might be required to understand the context fully.
- Encryption Issues: WhatsApp uses end-to-end encryption, ensuring that only the sender and the recipient can read the messages. This encryption ensures user privacy but can pose challenges when retrieving messages for legal purposes.
4. Case Precedents and Judicial Approach
In various cases, Indian courts have acknowledged the relevance of WhatsApp messages:
- Anvar P.V. vs. P.K. Basheer: This landmark judgment by the Supreme Court clarified the importance of Section 65B certification for the admissibility of electronic records.
- Subsequent Judgments: Following the precedent set by Anvar P.V. vs. P.K. Basheer, various courts have admitted WhatsApp chats as evidence, emphasizing the significance of context and the reliability of the presented records.
5. Practical Implications for Lawyers and Litigants
If you're considering using WhatsApp messages as evidence:
- Maintain Original Records: Ensure that you keep original message threads without any alteration.
- Seek Expert Assistance: Considering the technical nature of electronic evidence, it might be beneficial to engage with cyber forensics experts to authenticate records.
- Understand Privacy Implications: While presenting messages as evidence, understand the privacy implications, especially if the content is sensitive.
Conclusion
WhatsApp messages, like other forms of electronic records, have steadily gained acceptance in the court of law. However, their admissibility and reliability are often under scrutiny. It is crucial to understand the legal framework, challenges, and practical implications before presenting such messages as evidence. In an era dominated by digital communication, the importance of ensuring the authenticity and reliability of digital evidence cannot be overstated.
