Neighbour is harassing by stopping the construction with the help of municipal officers. My sister & brother in law bought a land parcel in Jammu. Once the construction reached a stage, the neighbours started objecting. My brother in law adhered to their request. However, there was no looking back and the neighbours brought a notice stopping the construction (violation) from the Municipality. It's been three years and they are just going back and forth to the Municipality office with no concrete result. Neighbours have continuous support of an ex Commissioner of Municipality. Please advise the best way to resolve this harassment.
Asked from: Jammu & Kashmir
Unreasonable delays in deciding the validity of your construction work constitute a violation of your fundamental rights. Prima facie, the conduct of municipal officers appears to be unjust and unfair. Before taking any legal action against them, you should first determine whether the municipality has served you with any notice regarding the illegality of the construction or if a complaint has been filed by your neighbor.
A delay of three years in deciding the validity of construction is excessively long. Municipal officers cannot stall a dispute for such an extended period. They are obligated to make a final decision on your construction—either declaring it legal or illegal—and pass an order without unreasonable delay.
In this situation, you should file a writ petition seeking a writ of mandamus against the concerned municipal officer, directing them to make a final decision within a fixed time frame. The municipality cannot remain idle indefinitely and avoid taking action on your matter. In such cases, the High Court has the power, under Article 226 of the Constitution of India, to issue a writ of mandamus, compelling the municipal officer to decide the matter within a specified period.
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How to move a protest petition against a negative final report? The investigating officer has sent the final report in my case. It was false and frivolous because I have produced enough evidence regarding the commission of offence. Accused are habitual criminals. They are trying to grab my land forcibly because there are some disputes among the co-owners. A civil suit is pending in the civil judge senior division towards the declaration of title on the land. That suit has been pending for a long time. I am a teacher and working in Bihar so not able to attend the court proceedings on each date. Also there is no one to harvest my land. The accused have availed that situation and attempted to grab my land forcibly. Accused are localities and have good relations in the police department. They have managed my case. Sir, how to move a protest petition and what action will be taken by the court?
Asked from: Andhra Pradesh
In the protest petition, you must pray for the cancellation of the negative final report and reiterate the allegations made in the original complaint. The contents of the protest petition should be structured as a complaint. While the Code of Criminal Procedure (CrPC) does not prescribe a specific format for a complaint, the protest petition must fulfill the requirements of Section 2(d) of the CrPC.
You must make specific allegations against the accused, clearly defining their role in the commission of the offence. Additionally, you should explicitly request the court to take appropriate action against the accused. The allegations must sufficiently disclose the commission of an offence.
These elements are crucial because the court has the power to reject the negative final report and either direct further investigation or treat your protest petition as a complaint. In Abhinandan Jha vs. Dinesh Mishra AIR 1968 SC 117, the Hon'ble Supreme Court held that even after accepting a negative final report, the Magistrate can still treat the protest petition as a complaint and proceed in accordance with the law.
Protest petition against a negative final report presents an opportunity for you to establish your case before the concerned court and request the Magistrate to take cognizance of the offence and proceed against the accused. If the court is satisfied that an offence has been committed and finds lapses in the investigation, it may take cognizance and issue process against the accused. For more legal help please visit Kanoon India.
Negative final report submitted after investigation is completed. The investigation officer was influenced by the accused because he knew them well. He ignored a lot of crucial evidence which must be collected by him during the investigation. My advocate filed a protest petition against the negative final report. Case is listed for final hearing but I want to handle my case strongly because if the case gets closed by the order of the magistrate the accused will ruin my life. How can the investigating officer submit a negative final report when the offence was committed in presence of several persons. The investigating officer recorded the statement of witnesses who were not present at the place of occurrence. He recorded the statements of only two witnesses who are supporting my case. Some vital documentary and forensic evidence have been destroyed by the investigating officer.
Asked from: Uttar Pradesh
Your advocate has taken the appropriate step in challenging the final report submitted by the investigating officer. In this situation, the contents of the protest petition become crucial. Based on the facts of your case, it appears that the investigating officer has intentionally not collected vital evidence related to the offence.
These malpractices and omissions must be clearly highlighted in the protest petition. It is a well-established legal principle that the court is not bound to accept the final report. The investigating officer merely expresses an opinion on the outcome of the investigation in the final report, but the court has the authority to adopt a different view after its perusal.
In Bhagwat Singh vs. Police Commissioner (1985) 2 SCC 537, the Supreme Court held that when a negative final report is submitted, the Magistrate has four options:
- Accept the report and close the proceedings.
- Direct the police to conduct further investigation.
- Conduct an inquiry himself or refer the investigation to another Magistrate under Section 159 of the Cr. P.C. [Section 178 BNSS]
- Take cognizance of the offence under Section 200 of the Cr. P.C. [Section 223 BNSS] as a private complaint, provided sufficient material is available and the complainant is willing to proceed.
Therefore, the Magistrate has the authority to reject the negative final report submitted after investigation and either direct further investigation or treat your protest petition as a complaint and proceed accordingly.
In the argument on your protest petition, you should explicitly highlight the mistakes committed by the investigating officer and demonstrate that there is prima facie evidence of a cognizable offence. If satisfied, the Magistrate can take cognizance of the offence and issue process against the accused. For more legal help please visit Kanoon India.
My neighbor is constructing a house adjoining to my compound wall without leaving even an inch as setback in a 30'x40' site facing towards south. He has fixed iron grills for the ground and first floors at his property end in the east. For the second and third floors he is constructing a mesh wall. The width of this wall is 40' and height is 25' which is creating a problem to me as the ventilation has become less. The rain water also has no other way to flow out and invariably flows into my property. Many a times I requested him to remove the wall built for the second and third floors which is on the west side of my property. He is arrogant and has continued the construction work. What should I do?
Asked from:
It appears that the type of construction in question is illegal. The neighbor cannot cover the entire area in a manner that prevents light, air or ventilation for adjoining properties. A twenty-five-foot-high mesh wall also poses a danger to your property, as it has been constructed without proper support and in violation of the sanctioned plan (if your area falls under the territorial jurisdiction of a development authority).
First and foremost, you should immediately file a civil suit seeking an injunction to prevent the defendant (your neighbor) from continuing the construction of the mesh wall. This wall not only obstructs light and air but also diminishes the value of your property. Blocking air and light constitutes illegal interference with the servient property.
In Rand H Spaces (P) Ltd. v. State of Goa, 2023 SCC OnLine Bom 2361, the Bombay High Court ruled that the complainant's right of way/access and right to air/ventilation must not be obstructed by the respondent.
In addition to seeking an injunction, you can also claim compensation from the defendant (your neighbor) for obstructing light, air, and ventilation. Under Section 33 of the Easement Act, any disturbance of an easement grants the right to seek compensation.
Explanation III of Section 33 further clarifies that obstruction of free air is considered substantial damage if it significantly interferes with the plaintiff's physical comfort, even if it does not harm their health. Explanation III reads as:
Where the easement disturbed is a right to the free passage of air to the openings in a house, damage is substantial within the meaning of this section if it interferes materially with the physical comfort of the plaintiff, though it is not injurious to his health
In the prevailing situations, you should immediately file a civil suit and also lodge a complaint with the relevant development authority or local authority against the illegal construction. Additionally, seek a temporary injunction to stop the construction during the pendency of civil suit.
Related: Harassment from neighbour by illegal construction
Subsequent proceedings in arbitration matter and challenge of award passed by the arbitrator. I want to challenge arbitral award, so I want to know how to challenge that award? There was dispute regarding enhancement of construction work. The tender was allotted in 2006. It was responsibility of the government to provide land for construction. since there were some disputes between the state government and landowners, therefore, delay was caused in providing land to my company. In that turmoil the cost of the construction was enhanced. In the global slowdown in 2008 the price of steel became high. Because the grade and quality of steel required for the construction would have to be imported from China. My company requested the state government to enhance the project cost. The government was adamant to do the work on the value mentioned in the tender. When the dispute arose, my company availed arbitration proceedings. The arbitration and conciliation proceedings just completed and passed arbitral award in my favour. Please advise where to file execution proceeding in arbitral award. During the arbitration some applications were moved in the city civil court. But two applications were moved in the court of senior division. Those applications were disposed of. No other proceedings were either pending or disposed of by any other court. In this situation I am unable to understand where to file execution application. Whether I have to move application in the city civil court or before the civil judge senior division. Please help.
Asked from: Tamil Nadu
You have to file execution proceedings before the Citi Civil Court. The proceedings before the civil judge senior division were erroneous because according to the provisions of Section 34 of the Arbitration and Conciliation Act, civil judge senior division is not competent to hear the matter of arbitration. Either district judge or city civil court has the power to entertain matters related to the arbitration and conciliation. In JSW Steel vs Jindal Praxair Oxygen Co. Ltd. (2006) 11 SCC 521 the Supreme Court has held that:
Where in any reference any application under this act has been made in a court competent to entertain it, that court alone shall have jurisdiction over the arbitration proceedings and all subsequent applications arising out of that reference and the arbitration proceedings shall be made in that court and in no other court.
According to Section 2 (1) (e) of Arbitration and Conciliation Act, court means principal civil court of original jurisdiction in a district and includes the high court in exercise of its original jurisdiction. Hence, the court competent to hear and decide the matter pertaining to arbitration is either the District Judge or the City Civil Court. Civil judge senior division is not a competent court. Therefore, the subsequent and execution proceeding in arbitration matter shall be filed in the city civil court. You should file the execution proceeding in city civil court instead of senior division.
Also read: Dismissal of suit for want of jurisdiction
State Public Service Tribunal Lucknow has dismissed my claim petition on the ground of limitation without going in the merit of my case. I am working as a junior engineer in the government of Uttar Pradesh. A disciplinary proceeding was initiated against me, and I have been punished with a minor punishment. I filed an appeal to the appellate authority on 12-02-2015. After filing of such an appeal, I personally appeared before the appellate authority to decide my appeal. In the pendency of that appeal, I am not able to avail other service benefits. My promotion is also getting delay due to the pendency of that appeal. Many appellate authorities have been transferred, and I appeared all of them. Due my continuous efforts the appeal was decided by the appellate authority in the month of July 2024.
The appellate authority has rejected my appeal without considering my grounds of appeal. Feeling aggrieved from the order of appellate authority, I prefer a claim petition in the State Public Service Tribunal Lucknow. That claim was admitted by the tribunal but for hearing on limitation issue only. The government advocate said that the punishment order was challenged after a delay and this claim petition is barred by limitation. On the next date of hearing the tribunal has dismissed my claim petition. Sir I have sent the order of tribunal on your email given on the website. Please read that judgment before giving advice. Thanks
Asked from: Uttar Pradesh
The State Public Service Tribunal, Lucknow, has wrongly dismissed your claim petition. Sub-section (6) of Section 4 of the Uttar Pradesh Public Services (Tribunal) Act, 1976, does not pertain to limitation. Instead, this section provides an aggrieved government servant the option to file a claim petition in the tribunal if their appeal, revision, or representation has been pending for more than six months. If such an appeal or representation remains undecided by the competent authority within six months from the date of filing, the aggrieved person, after serving a legal notice to that authority, may file a claim petition upon the expiry of one month from the date of service of that notice.
The period of limitation is specified in Section 5 of the State Public Service Tribunal Act, 1976. According to this section, the limitation period begins when the competent authority passes the final order. If an appeal, revision, or representation is pending before the authority, the limitation period does not commence, as established in Samarjeet Singh vs. State of Uttar Pradesh [(2006) 2 AWC 2750].
The tribunal dismissed your case on the grounds that your appeal had been pending for more than nine years and that you had failed to serve a legal notice after six months from the date of filing the appeal. This reasoning is flawed for two reasons. Firstly, serving a legal notice is not mandatory. Secondly, the opposing party cannot benefit from its own wrongdoing. The appellate authority was at fault for keeping your appeal pending for over nine years.
The cause of action arose when the appeal was finally decided. At that point, the limitation period commenced as per Section 5 of the State Public Service Tribunal Act, 1976. Under this provision, you were required to file a claim petition within one year from the date you became aware of the order. As per Section 5, your claim petition was well within the limitation period. Therefore, the tribunal’s order is prima facie incorrect. You should file an appeal in the High Court against this order.
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Suit dismissed for defect in parties without providing opportunities to amend the paint. Civil suit filled for declaration of right and title in the property. That property was self acquired by my heart grandfather. My great grandfather was an engineer in the public works department. He purchased land and built a house. My grandfather was the only son. He had an illicit relationship with a woman but this fact was never disclosed. He was also a government servant and had good earnings. He built a house for his mistress. That lady never was in our contact and also never appeared in our society as a friend or known of my grandfather. Grandfather died in 1972. There is an encroachment at a small portion of our property, so we filled a declaratory suit and made encroachers as defendants.
Defendants said that they are tenants of Mrs xxx from 1981. We came to know from their written statement that my grandfather's mistress died in 1999. They have no evidence that the said lady let it out of that property. Also there is no evidence that that lady was the owner of that portion of property. But the civil judge said that our main grievance is against that lady. We refused to add her son as a party with the consequence my suit is dismissed for defect in parties.
Asked from Bihar
Prima facie it seems that the order of dismissal of suit is wrong and passed against the settled principle regarding the framing of parties. Plaintiff is a dominus litis, he had the right to sue, and the court cannot interfere unless it found that necessary parties have not been brought on record.
It appears from the fact that the mistress of your grandfather was living separately. Their relationship was in hush-hush, and it had never been in public. You came to know about their illicit relationship only after the filling of a civil suit. It is also evident that neither the intruders nor the son of that lady has any legal proof of ownership on the property.
In absence of legal document his ownership has not been prima facie proved. Since the intruders have also failed to produce any legal documents of tenancy, it cannot be said that that lady was the owner and the intruders are her tenants.
In the absence of a valid document a person cannot be added as a defendant merely on the basis of the written statement of defendants. The plaintiff is the dominus litis, he has exclusive right to sue. The court can interfere only when it finds that the necessary part is not brought on record.
The son of your grandfather's mistress is not a necessary party because he has no evidence to prima facie establish his right in that property. However he may be a proper party, but a suit cannot be dismissed on the ground of not joining the proper party in the suit. Mis- joinder of party cannot form the basis for dismissal of suit.
You should file an appeal against the order of dismissal. Suit was wrongly dismissed for defects in parties. This order has been passed in gross violation of the provision enumerated in Order 1 Rule 9 and 10 of the code of civil procedure. The appellate court shall set aside this impugned order.
Also read: How to expedite the proceedings of civil suit?
Childless old lady can seek maintenance from anyone. My neighbor is an 80-year-old woman living alone in her home. Her husband was one of three brothers, and all have passed away. There are no male relatives residing in her household. The property she lives in is quite old, having been built by her great-grandfather-in-law. The daughter of her husband's eldest brother lives in Indore. This daughter is married and works as a teacher in a government college. I approached her to assist in caring for the elderly woman, but she declined. The elderly woman's condition is now deteriorating. She struggles to care for herself due to a lack of financial resources.
Several property dealers are approaching her to sell her house. However, the woman fears being cheated and is unable to relocate at this stage. We, her neighbors, are providing some care, but our assistance has limitations. Is there any legal provision to claim maintenance for this elderly woman? Someone suggested filing a case under Section 125 of the Criminal Procedure Code (CrPC). Please provide a legal solution to this problem.
Asked from: Madhya Pradesh
A childless elderly woman (senior citizen) can claim maintenance under Section 5 of the Maintenance and Welfare of Parents & Senior Citizens Act, 2007. This childless woman has the right to claim maintenance from relatives who will inherit her property.
It is an undisputed fact that the property is joint family property. Her great-grandfather-in-law owned this property and it has remained undivided. The daughter of the lady's brother-in-law will inherit this property as she is the immediate legal heir.
Section 2(g) of the Senior Citizens Act, 2007 defines "relatives" as persons who will inherit the property of the senior citizen. According to Section 5 of the Act, a relative is also responsible for maintaining the senior citizen.
Section 5 of the Act, 2007 also provides that any other person or association can file a civil suit on behalf of the senior citizen. You can also file a civil suit on behalf of the elderly woman to claim her maintenance.
Thus the childless old lady can seek maintenance from her relatives under the Act 2007. This suit must be filed in the court of the Deputy Collector (maintenance tribunal) within whose jurisdiction the property is located.
Related:
Civil court has dismissed suit for the want of jurisdiction and said that the suit should have been filled before the labour court. My claim was to recover money from the sugar factory who has withheld my arrears. The court expressed its view that the subject matter comes under the jurisdiction of the labour court. Where I filled another case for illegal termination of my service. That matter is different because that was related to disciplinary proceedings. Civil court has dismissed my case at the admission stage. The objection filled by the defendant in that case is beyond the jurisdiction. Subject matter is not related to civil court and you have to file complaint in the labour court. However, there was no such issue involved because the company has a huge arrear of salary. that salary is not provided by the company after termination of my service. Then I filed a civil suit for the recovery of that arrears from the company along with eighteen percent interest.
In the filing of that civil suit I have submitted a letter issued by the company when I claimed my arrears. That letter is an affirmation of the company which is good evidence to show that the company has withheld my money. again i submitted a declaration issued by the company to all employees to fill and submit a claim form for payment of arrears. That declaration is clinching proof that company has my money.
Asked from: Maharashtra
The civil court has erroneously dismissed your suit. It is proven from the facts of your case that the sugar company has not paid the arrears of salary to its employees. This is a separate issue and is nowhere connected with the disciplinary proceedings. You are not claiming the amount of money deducted by the company in the culmination of disciplinary proceedings.
That money was part of your salary which has not been paid due to some other reason. In this scenario, the cause of action arose when the company did not pay that amount, even after the filing of the claim form. At that time, no disciplinary proceedings were initiated against you. You are entitled to receive that money as a regular employee. Your delinquency was not in question. You should file an appeal against the order of the civil judge. The civil court has dismissed the suit erroneously on the lack of jurisdiction of subject matter.
Related:
Legal heirs of defendant filled objection that sir is not maintainable after the death of their father. I filled a suit for the partition of property. During pendency of suit one of the defendants died. Since he was issue less and his wife also died nearly ten years ago I didn't file an impleadment application to bring his legal heirs on the record. The suit has been decided by the court on merits. When the decree is in the process the legal heirs and his father filled an appeal. The appellate court while admitting the appeal order to maintain the status quo till the further order of the appellate court. The trial court is being precluded to prepare decree till the next order of the appellate court. In the meantime I filled a case in the high court against the order of status quo. That case is pending and notice is issued to the opposite parties.
Now the case is stuck between the decisions of the court. More than one year has lapsed and no decision is passed by the court. I could not understand how to handle my case in the high court. The appellate court is also adamant to proceed further until the decision of the high court.
Asked from: Karnataka
When the defendant died during trial you had to implead legal heirs of the deceased defendant. It was your responsibility to bring necessary parties on the record of the case. Because the necessary part has the right to defend his right. Due to non-impleadment of legal heirs they had refrained from defending their rights. If the legal heirs are not impleaded the suit abates against them. They are not bound to the judgment.
When the legal heirs of the deceased defendant filled the appeal along with the other defendants they have abandoned their right to abatement of suit. When the judgment has been passed against the dead person, his legal heirs should have filed separate applications for abatement. Once they filed a joint appeal they are challenging the impugned order on merits.
Being joint appellants, they are challenging the judgment on merits, it proves that they do not want to seek abatement. Thereafter they cannot invoke order 22 of the code of civil procedure for abatement.
In Kiran Singh vs Chaman Paswan AIR 1954 SC 340 the Supreme Court has held that if a judgment has been passed on merits it shall not be liable to be reversed on mere technical ground if there is no travesty of justice.
Seeking abatement is a technical ground for declaring a judgment null and void so far as it relates to the legal heirs of the deceased defendant. When legal heirs of deceased defendant are challenging that judgment on merits, thereafter, they cannot seek abatement.
If the order of status quo was granted on the basis that judgment was passed against the dead person, that order will not sustain as per the above legal position. You will get appropriate relief from the high court. File listing application and expedite your petition in the high court.
Also read: How to calculate court fees in partition suit
