Hi, I reside in Ahmedabad. My society is a cooperative housing service society. I want to know if the builder provided extra space to house owners for specific use, not for construction. Builder constructed a building over the area reserved for the use of the house owners. If house owners construct these areas, do these spaces belong to the society for common utilities such as drainage, common plumbing, gas line conduct area, and parking? The builder has already constructed such areas, and I wish to file a complaint against them. They are not allowing the construction of a gas pipeline supply due to their previous construction. What steps should I take to proceed?
Asked from: Gujarat
That construction is illegal because it was not sanctioned by the appropriate authority. The approved plan specifically mentioned areas for the common use of flat owners. There is a fixed ratio between the construction area and open area.
When the builder did construction on the open area which was left for the common use for the flat owner, he breaches the ratio or proportion of open and built up area. This is indeed an illegal act, you should file a complaint before the appropriate authority who has sanctioned the site plan.
This construction is being done in violation of the approved site plan therefore, it is illegal per se. That construction should be demolished.
Read also: Legal action against builder for not providing parking spot
1997 से लगातार न्यूनतम वेतनमान दिया जा रहा है। बिना किसी ठोस कारण के मेरे डी ए तथा अन्य तमाम लाभों को अवरूद्ध किया गया है। बहाना सर्विस बुक और पर्सनल फाइल का नहीं होना है।
प्रश्न पूछा गया: बिहार से
यदि लगातार २५ वर्षों से सेवा अविवादित है और न्यूनतम वेतन दिए जाने का प्रमाण है तो सर्विस बुक न होने के आधार पर अन्य सेवा लाभों से वंचित नहीं किया जा सकता है।
नियोक्ता का दायित्व होता है कि वह अपने कर्मचारी के सर्विस बुक एवं पर्सनल फाइल को रखे और उसे अद्यतन करे। मात्र सर्विस बुक और पर्सनल फाइल के न होने पर कर्मचारी को उसके विधिक अधिकार से वंचित नहीं किया जा सकता है।
यदि आपकी नियुक्ति विधिक प्रक्रिया के तहत और सिविल पोस्ट पर हुई है तो पूरा वेतन एवं अन्य सेवा लाभों को अर्जित करना आपका विधिक और मौलिक अधिकार है। संविधान के अनुच्छेद २१ के अंतर्गत किसी नागरिक को उसके प्राण (life) एवं दैहिक स्वतंत्रता से बिना किसी विधिक प्रक्रिया के वंचित नहीं किया जा सकता है।
अनुच्छेद २१ के अंतर्गत "सम्मान के साथ जीने का अधिकार" एक मूल अधिकार है। कर्मचारी को पूर्ण वेतन न देना उसको गरिमा या सम्मान के साथ जीने से वंचित करना है। यदि बिना किसी विधिक कारण के पूर्ण वेतन नहीं दिया जाता है तो कर्मचारी के मूल अधिकार का उल्लंघन होता है अतः आप अनुच्छेद २२६ के अंतर्गत माननीय उच्च न्यायालय में एक रिट याचिका योजित कर सकते हैं।
अतः आप अनुच्छेद २२६ के अंतर्गत माननीय उच्च न्यायालय में एक रिट याचिका योजित करें और पूर्ण वेतन दिए जाने की मांग करें। यदि २५ वर्षों तक सेवा का रिकॉर्ड है और वर्तमान पद पर विधिवत नियुक्ति हुई है तो आप पूरा वेतन और अन्य सेवा लाभ जैसे- पदोन्नति, पेंशन, वित्तीय स्तरोन्नयन (ACP), चिकित्सा लाभ आदि पाने के अधिकारी हैं।
सर्विस बुक और पर्सनल फाइल रखना नियोक्ता की जिम्मेदारी होती है। नियोक्ता अपने किसी त्रुटि के लिए आपको विधिक अधिकार से वंचित नहीं कर सकता है।
According to section 10A of the Divorce Act 1869, divorce by mutual consent is not permitted within two years of separation. A petition for dissolution of marriage may be presented to the District Court by both the parties to a marriage together, on the ground that:
- they have been living separately for a period of two years or more,
- they have not been able to live together and
- they have mutually agreed that the marriage should be dissolved
A period of separation for two years is mandatory for the mutual consent divorce. Hence, you cannot file a mutual divorce case within one year of marriage. If there is exceptional hardship to retain the marital status or due to incompatibility of spouses, it is impossible for them to live together then you can get mutual divorce.
In this situation, you have to move a petition to the Supreme Court under Article 142 of the Constitution to grant a divorce on the exceptional ground i.e. the marriage is irretrievable.
In Shilpa Shailesh vs Varun Srinivasan 2023 the Supreme Court has held that if the marriage is irretrievably break down no possibility of reconciliation the Court has power under Article 142 to dissolve the marriage to do complete justice.
It is not possible to dissolve the marriage through a notorised agreement because a decree of competent court is mandatory for the dissolution of marriage. That agreement or out of the court divorce has no legal sanctity. It shall not dissolve your marital status.
Differential parking fee from members and owners of flats. I live in a society where the monthly cost for parking a car is different for different flat owners. The distinction in parking fee is made on the basis of 'whether the owner had purchased the parking spot from the builder'. A bunch of people living in the building bought flats directly from the builder and also purchased a parking spot. Now, when we bought the house a few years back, the previous owner didn't have a parking spot. Therefore, they are charging a premium parking rate which is 2500 per month as opposed to the others which are less than 150 per month. Interestingly there is no stilt/covered/enclosed parking spot and all are in the 'common area' itself. Can the society through their AGM/GM take such decisions and deploy differential pricing? If not, what precedence/by-law can be used to argue this point.
Asked from: Maharashtra
According to Section 3 of the Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management, and transfer) Act, 1963, when a person purchases a flat, he also pays for the common area and facilities in proportion to the carpet area of his flat.
Therefore, it is incorrect to state that the housing society is the sole owner of the common area. Instead, all flat owners have joint ownership over the common area. The society assumes the responsibility of maintaining the common area in accordance with the society's bylaws for the welfare of its members.
In Nahalchand Laloochand (P) Ltd. v. Panchali Coop. Housing Society Ltd., (2010) 9 SCC 536 the supreme court has held that "in our discussion above that open to the sky parking area or stilted portion usable as parking space is not a “garage” within the meaning of Section 2(a-1) of the Maharashtra Ownership Flats Act and, therefore, not sellable independently as a flat or along with a flat."
Hence, it was impossible for the builder/promoter to sell open to the sky area as a parking spot. That kind of sale is illegal because it is violating the provisions of Maharashtra Ownership Flats Act.
Your society does not have a covered/stilted/enclosed parking area. The society provides facilities to flat owners, who do not have exclusive parking spots, to park their vehicles in the common area.
However, it is important to note that designating this facility as 'premium parking' is not legally permissible. The mentioned practice of charging for the facility as 'premium parking' is deemed illegal. According to the judgment in the case of Nahalchand Laloochand (P) Ltd. v. Panchali Coop. Housing Society Ltd., (2010) 9 SCC 536, the society has the sole right to charge the maintenance cost for the common area in proportion to the carpet area of each flat purchased by the owners.
Therefore, the society should not engage in the practice of charging extra fees for parking in the common area by labelling it as 'premium parking' as it contradicts the legal provisions established in the mentioned court case.
Parking fee
The society's bylaws should outline a transparent methodology for determining the fee for open parking. This methodology may consider factors such as the size of the parking space, maintenance costs, administrative expenses, and other relevant factors.
Typically, the fee is collected on a monthly or annual basis and is included as part of the overall maintenance charges imposed by the society. It is crucial for the society to have a fair and transparent system for determining and collecting the fee for open parking.
The details regarding the fee structure and collection should be clearly specified in the society's bylaws, and any changes to the fee should be approved as per the procedures outlined in the bylaws.
The exorbitantly high fees for premium parking in your society, which seem to be an act of extortion, raise concerns. It is essential to ensure that the fees charged are reasonable, justifiable, and free from any discriminatory practices.
Moreover, it is important to note that the builder does not have the right to sell common areas of the society as parking spots. Therefore, any differentiation between purchased/owned parking spots and other parking spots without a legal basis is considered illegal.
The concept of premium parking is invalid as the builder had no authority to sell open areas as parking spaces. In the prevailing scenario, the parking fee should be the same for all flat owners. The existing classification between owned and unowned parking spots lacks a legal basis and is therefore illegal.
In light of these circumstances, it is recommended that you lodge a complaint with the appropriate authority, such as the society's registrar, against the illegal fee collection practices carried out by the housing society. These practices are in contravention of the society's bylaws and require proper investigation and action.
Related:
Wall construction by neighbour to prevent light from entering my house. My neighbour and I had an argument and after that he started constructing a wall on his side to block sunlight and air from entering my house. What can I do now to prevent him from constructing the wall?
Asked from: Rajasthan
According to the Indian Easements Act, 1882, a neighbor cannot block sunlight by constructing a wall. This act recognizes the right to receive light and air as an easement, which is a legal right attached to the property. If your neighbor's wall is obstructing sunlight and air from entering your property, you can take legal recourse to protect your rights.
You can file a civil suit against the neighbour because he is trying to deprive you from receiving sunlight by constructing a wall. However, he has the right to construct a wall in his land but has no right to interfere in you right to easement.
An easement refers to the right of a property owner (dominant tenement) to compel another property owner (servient tenement) to either permit or abstain from certain actions on the servient property, for the benefit of the dominant property.
It encompasses various rights such as the right of way, right to light, right to air, and more. These easement rights ensure that the owner of the dominant property can enjoy specific benefits or access that would otherwise be restricted without such rights.
Right to light
The right to light is the right to prevent the owner or occupier of an adjacent property from constructing or placing anything on their land that unlawfully obstructs or obscures the light of the neighboring property.
The easementary right to light protects against a specific nuisance. To sustain an action for light obstruction, continuous enjoyment of light for twenty years without interruption or consent is required. The obstruction must also qualify as an actionable nuisance.
File a civil suit
You should immediately file a civil suit for permanent injunction and declaration of right. If you have been enjoying sunlight for more than twenty years, then you have the right to stop the construction. In the proposed civil suit you should claim a temporary injunction and stop the construction until the further order of the court. Because your neighbour prevent light thereby he has been infringing your right to easement.
Related
My Sister-in-law occupied my mother's house. Ram, the eldest son. He is hard working ethic and his commitment to caring for his mother. Their family had strong bonds and unity. But little did they suspect that a tempest loomed on the horizon, ready to disrupt their tranquil existence.
Meera, Ram's sister-in-law, possessed a forceful personality and an insatiable desire for control. Moreover, over time, Meera grew dissatisfied with her own circumstances. Consequently, she found herself envious of the happiness and stability enjoyed by Ram's family. Therefore, unable to cope with her discontentment, she resolved to sow discord within Ram's household.
Meera initiated her campaign by incessantly complaining about every aspect of Ram's mother's house. Primarily, she nitpicked every minute detail, from the arrangement of furniture to the cleanliness of the space. Consequently, Ram, being a dutiful son, did his utmost to address her concerns and maintain harmony within the family.
However, matters took a turn for the worse when Meera went so far as to file an injunction against Ram. This injunction prohibited him from making any alterations or decisions regarding his mother's house without Meera's consent. Shocked by this act, Ram and Devi had always treated Meera as one of their own.
Amidst the ensuing chaos, Devi disclosed a secret to Ram—she had prepared a will bequeathing her entire property to him. With the intention of securing her son's future and the well-being of her cherished grandchildren, she took this step. Emotions overwhelmed Ram upon learning this, but he was well aware that the path ahead would not be easy.
As expected, Meera and her family discovered the existence of the will and promptly contested it. They alleged that Devi was of unsound mind when the will was made and accused Ram of manipulating her to favor him. To further complicate matters, they filed a case in civil court, challenging the validity of the will.
The court battle weighed heavily on Ram and Devi, as they had always believed in the strength of their familial bonds and never anticipated such animosity within their own kin. The courtroom proceedings seemed interminable, with both sides passionately presenting their arguments.
During this arduous time, Ram sought guidance from well-wishers and legal experts. He was resolute in his determination to fight for justice and uphold his mother's wishes. With the support of his lawyer and fueled by his love for his family, Ram presented compelling evidence and testimonies that attested to the authenticity of his mother's will.
Finally, after months of struggle, the court reached a decision. The judge recognized the validity of Devi's will, acknowledging her sound state of mind and the absence of any undue influence. Ram's unwavering pursuit of justice had paid off, and the property rightfully belonged to him.
Although the legal battle had taken its toll on Ram's family, they emerged stronger than ever before. Furthermore, they came to understand the significance of unity during trying times and, above all, the importance of love and trust within a family. As a result, Ram and Devi's bond deepened, and they found solace in the knowledge that their unity had conquered adversity.
Although the legal battle had taken its toll on Ram's family, they emerged stronger than ever before. Furthermore, they came to understand the significance of unity during trying times and, above all, the importance of love and trust within a family. As a result, Ram and Devi's bond deepened, and they found solace in the knowledge that their unity had conquered adversity.
In the end, the storm that had threatened to tear the family asunder ultimately brought them closer together. Consequently, they gleaned invaluable lessons about love, resilience, and, above all, the significance of standing up for what is right. Thus my Sister-in-law has occupied my mother's house.
You should file civil suit for the declaration of your right in that house. Your sister-in-law has illegally occupied your mother's house. She has no legal right to take possession on the entire house. In that civil suit you should also take a plea for the temporary injunction and prohibit your sister-in-law to sell this house to any other person.
Related:
After receiving substantial amount in advance the owner sold land to another person. I am interested in purchasing a piece of land. That land is situated in XXX of Sultanpur district. The owner executed a registered agreement to sell and received 90% of the sale money in advance. Owner has sold that land to another person after receiving a substantial amount in advance. When I sent a legal notice to him to execute the sale deed he replied that he had sold that land after my refusal. After paying 90% of the price of the land to its owner in advance, I have no right to get the property in my name. The person who has purchased that land is my friend and he was a witness in the agreement to sell. Please give me some advice.
Asked from: Bihar
You should file a civil suit against the original owner for the specific performance of the contract under Section 10, 19, 20 and 34 of the Specific Relief Act 1963. The owner is bound to perform the contract and execute a sale deed in your favour because he has accepted a substantial sale consideration (90% sale consideration) in advance.
No need to file a civil suit for the cancellation of sale deed because the subsequent purchaser is not a bona-fide purchaser. He has purchased this land have had information about the execution of agreement to sell between you and the original owner.
In the civil suit for specific performance of contract, you should also make the subsequent purchaser as a defendant. You should seek relief from both persons i.e., original owner and subsequent purchaser.
Relief against original owner: you should seek a relief from him to perform the contract specifically by executing a sale deed in your favour because after receiving substantial amount of sale consideration in advance he has not executed sale deed.
Relief against subsequent purchaser: you should seek a relief from him to join in the execution of the sale deed in order to completely convey title to the agreement-holder (you).
Since the subsequent purchaser has not acted honestly and having information that the original owner has received substantial sale consideration in advance, he purchased that land. Hence, he shall join in the conveyance so as to pass on the title to you.
Your claim from the court to direct the subsequent purchaser to join in the process of execution of sale deed in the favour of plaintiff is well founded.
In Durga Parsad v. Deep Chand 1954 SCR 360; Soni Lalji Jetha v. Soni Kalidas Devchand (1967) 1 SCR 873, R.C. Chandiok v. Chuni Lal Sabharwal (1970) 3 SCC 140, Dwarka Prasad Singh v. Harikant Prasad Singh (1973) 1 SCC 179 and Rathnavathi v. Kavita Ganashamdas (2015) 5 SCC 223; the Supreme Court has held that the trial court has the power to direct the subsequent purchaser to join the original owner in the process of execution of sale deed in favour of plaintiff, because he is not a bona-fide purchased and he had the information of agreement to sell executed between the plaintiff and original owner.
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