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.
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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.
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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.
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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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Question: Breach of agreement to sell : what action should be taken against the dealer. I entered into an agreement to sell with a land dealer to sell my land within one year from the date of registration of agreement. After the agreement the dealer has refused to perform his duty under the said agreement. In this kind of breach of agreement to sell, what action should be taken against the dealer? Can I sell this land to anyone despite this agreement to sell?
According to section 54 of the transfer of property act an agreement to sell is an executable contract. In Hyderabad Engg. Industries v. State of A.P., (2011) 4 SCC 705 the Supreme Court has explained the effect of agreement to sell as:
when the transfer is in presenti (immediate transfer), it is called a “sale”. But when the transfer is going to be completed at any future time and subject to fulfilment of some conditions subsequently, it will be an agreement to sell.
As per the terms of your agreement the dealer has to sell your land within one year from the date of signing the agreement. He failed to sell your land within the stipulated time. Hence, the agreement has been breached by the dealer.
In this situation, if there is any compensation regarding the breach of agreement mentioned in the agreement, he has to compensate you accordingly. After the breach of agreement both parties became free from the duties and obligation mentioned in the agreement to sell.
Now the dealer has no right to sue against you on the basis of that agreement. You are free to sell that land to anyone. If you want better security or avoid future litigation, you can file a suit for declaration against the dealer that the agreement is null and void.
In a declaratory suit, the plaintiff seeks a declaration from the court regarding the legal position or status of a particular matter. This can include disputes related to contracts, property rights, intellectual property, and other legal issues where a declaration of rights is sought.
After obtaining the decree in the declaratory suit the dealer shall be prohibited to claim any right in this property.
Question: Maternity leave for contractual employees in Uttar Pradesh. I want to know whether maternity leave is available for contractual employees in Uttar Pradesh? Currently I am working in XXX department on a contractual basis. After three years of service I have applied for maternity leave but my head of the department has refused stating that I am not eligible. There is some dispute regarding my posting in the department because the head sir wants to take work from another employee who is his relative. Hence, he is refusing to grant maternity leave. Please help.
Maternity leave refers to a period of time during which a woman is allowed to take time off from work in order to recover from childbirth, bond with her newborn, and attend to the needs of her child.
It is considered a form of social insurance because it is a benefit provided by the government or an employer to ensure that women have the necessary support and protection during this significant life event.
The primary purpose of maternity leave is to support the health and well-being of both the mother and the child. After giving birth, women typically need time to physically recover, as childbirth can be a demanding process.
Maternity leave allows them to rest, regain their strength, and take care of their own health needs. This crucial period allows mothers to establish a strong emotional connection with their infants, promoting their overall development and well-being. By having dedicated time to focus on their children's needs, mothers can provide the necessary care and attention during these early stages of their child's life.
Overall, maternity leave is a form of social insurance that recognizes the importance of supporting maternal and child health, as well as providing necessary family support during this significant period in a woman's life.
In Dr. Rachna Chaurasiya v. State of U.P. 2017 (11) ADJ 399 (DB) the Hon'ble High Court Allahabad has held that daily wage (contractual) employees are also entitled for maternity leave.
On a perusal of different provisions of the Act, 1961 as well as the policy of the Central Government to grant Child Care Leave and the Government Orders issued by the State of U.P. adopting the same for its female employees, we do not find anything contained therein which may entitle only to women employees appointed on regular basis to the benefit of Maternity Leave or Child Care Leave and not those, who are engaged on casual basis or on muster roll on daily wage basis.
Dr. Rachna Chaurasiya v. State of U.P. 2017 (11) ADJ 399 (DB)
I Anshu Rani v. State of U.P., Writ-A No. 3486 of 2019 the Hon'ble High Court Allahabad has held that once the State of U.P. has adopted the provisions of the Maternity Benefit Act, 1961, as determined by this Court, the said Act of 1961 would apply with full force, regardless of the provisions stated in the Financial Handbook.
You are entitled to receive maternity leave as per the provisions of the Maternity Benefits Act, 1961. There is no provision that excludes daily wage, casual, muster roll employees, and contractual employees from availing these benefits.
Upon refusal to get maternity leave you can file a writ petition in the high court under Article 226 of the constitution of India. You should seek quashing of the order thereby your leave has been rejected. The high court may quash the order and may direct to sanction that benefits as per the provision of Maternity Benefits Act 1961.
Question: Sub inspector is conducting investigation under SC/ST Act. In the first information report the specific allegations were made towards the offence punishable under Sections 3(i)(x) and 3(2)(v) S.C/S.T. Act along with Section 307 and 149 IPC. the investigation has been handed over to the sub inspector XXX. That sub inspector is conducting investigation under SC/ST Act. The offence is punishable under Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. Any remedy?
It is pertinent to mention that as per Rule 7 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995, the offence committed under the S.C./S.T. Act should be investigated by a police officer holding the rank of Deputy Superintendent of Police or higher.
The provision mentioned is mandatory, and any violation of it would invalidate the investigation. In this situation, you should approach the Judicial Magistrate under Section 156(3) of the Criminal Procedure Code (CrPC) to seek appropriate orders for transferring the investigation to a police officer of the rank of Deputy Superintendent of Police or higher
If you receive no response from the Judicial Magistrate under Section 156(3) CrPC, you have the option to approach the High Court under Section 482 CrPC. The High Court can then direct the state to transfer the investigation to the Circle Officer within whose territorial jurisdiction the offence is committed.
It is important to rectify this error before filing of the charge sheet, to prevent the accused from filing a petition in the High Court under Section 482 CrPC to seek the quashing of the charge sheet. Because if the sub inspector is conducting investigation under SC/ST Act and files charge sheet, it shall vitiate the investigation in per se. The high court will have no option except to quash the charge sheet. To avoid any untoward situation you should take prompt action to correct this legal impediment.
Question: Attack at the vital part by deadly weapon amounts to murder. My brother was murdered by villagers on the issue of harvesting fields. The accused were armed with deadly weapons like shotgun, ballam, bhala, sword and lathi-danda (club). They immediately came to my field and stopped my brother from moving the tractor to the field. During the heated exchange of words, one of the accused had hit my brother with ballam at the centre of chest with full force. That attack was targeted at the vital part. After receiving that injury my brother fell and died immediately. The trial court convicted the accused for culpable homicide instead of murder and sentenced to ten years rigorous imprisonment. What to do?
As per the injuries suffered by the deceased and his cause of death, the offence of murder is made out. Ballam is a deadly weapon if used with full force at the vital part of the body, causing injuries sufficient to cause death in the natural course. You have not shared the post mortem report. Hence, this advise is based upon the above stated facts of the case.
In Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra Pradesh, (2006) 11 SCC 444 the hon'ble supreme court has held that the intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances:
- nature of the weapon used;
- whether the weapon was carried by the accused or was picked up from the spot;
- whether the blow is aimed at a vital part of the body;
- the amount of force employed in causing injury;
- whether the act was in the course of sudden quarrel or sudden fight or free for all fight;
- whether the incident occurs by chance or whether there was any premeditation;
- whether there was any prior enmity or whether the deceased was a stranger;
- whether there was any grave and sudden provocation, and if so, the cause for such provocation;
- whether it was in the heat of passion;
- whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner;
- whether the accused dealt a single blow or several blows.
In your case, there was a conflict arising from the gathering of grains from the field. During the course of this enmity, the accused assembled with deadly weapons to unlawfully resolve their dispute. Subsequently, they reached the location of the incident. The fact that they carried the deadly weapon while heading to the scene itself establishes their common intention to use the weapon if circumstances warrant, which could potentially result in death. Therefore, the accused had the intention to kill.
Forceful attack at the vital part by deadly weapon proves intention to kill
The degree of intention to kill is the deciding factor to punish the accused for the offence of murder or culpable homicide not amounting to murder. In your case, the weapon used was a deadly weapon. Accused used that weapon with full force to inflict grievous injury to the vital part of the body. The conduct of the accused proves that he had a high degree of intention to kill.
At the time the accused used the weapon with his full force targeting the vital part of the body itself proves that he had the intention to kill the deceased. Therefore, he should be punished for the offence of murder instead of culpable homicide not amounting to murder. Punishment under Section 304 IPC seems wrong in the facts of the case. Accused should be punished under Section 302 IPC. because attack the deceased at the vital part of body by a deadly weapon establishes his intention to kill.
Employer withholding salary, I have given my resignation on 16th of May and I am currently serving a 2 month notice period. Employer withholding salary. My employer has paid me only for 1st to 15th of May and is planning to withhold my salary for the next 2 months. When asked they said they will pay me when I complete my notice period.
Asked from: Maharashtra
Employer withholding salary: According to the Indian labour laws, if you have submitted your resignation and are serving a notice period, you are entitled to receive your salary for the entire notice period, unless there are specific contractual clauses or terms agreed upon by both parties that state otherwise.
In general, an employer cannot withhold an employee's salary during the notice period unless there is a valid reason, such as recovery of dues or any financial liabilities on the employee's part.
However, even in such cases, the employer should follow proper legal procedures and provide a valid explanation for withholding the salary.
Review your employment contract
Carefully read your employment contract to understand the terms and conditions regarding notice period, salary payment, and any applicable deductions.
Communicate with your employer
Send a legal notice to your employee and express your concerns to your employer regarding the withholding of salary during the notice period. You can send that legal notice preferably via email or a formal letter, stating that you believe you are entitled to receive your full salary for the entire notice period.
Request clarification on the reasons for withholding your salary. In the meantime you may contact your company's HR department and explain the situation to them. They may be able to mediate between you and your employer to find a resolution.
Legal action when employer withholding salary
If the employer fails to address your issue and does not pay your salary during the notice period, you have the right to take legal action against him. You can file a case against him in the Labour Tribunal. Withholding salary during the notice period prima-facie seems illegal. The labour tribunal is competent to deal with your case and has power to adjudicate this issue.
Related: What to do if salary has been withheld by employer?
