Whether sale deed is mandatory for transfer of property for money, or I could execute power of attorney. A builder contracted me to exercise a power of attorney instead of a sale deed. He also wants a deed of consent for plotting and doing development work on the land. But he says that the consideration shall be paid in installments.
Asked from: Haryana
Sale deed is the valid document for transfer of ownership of property from the seller to buyer in consideration. Any other document or deed such as power of attorney is invalid. There are several modes of transfer of property.
Gift, leas, mortgage and exchange are also a mode of transfer of property from owner to another person. But they are not related to transfer in lieu of considerate or price. When a property is being transferred for price, sale deed is only a valid document.
You should avoid executing such a deed of conveyance. It is invalid because ultimately the sale deed of each plot shall be executed by you. Builder even after power of attorney will have no power to execute sale deed.
The builder wants to engage you in a deed and get exclusive right to do plotting and sale of land. After execution of power of attorney, you will lose right in the property. You cannot sell your land. It is also possible that he may pay some advance as a part of consideration.
This is a general practice of builders especially when the price of property is too high or very demanding. Actually, builders want to engage the landowners in legal deed and get the right to interfere in property without paying consideration in full.
Execution of sale deed is mandatory in transfer of property in lieu of price because government gets revenue in form of stump duty proportionate to the market value of property. Whereas in power of attorney only nominal fees are paid by the proposed buyer and get the right to interfere in the property. For more help please visit Kanoon India
Also read: Fake sale deed
Prosecution produced CCTV recording to prove my presence in the apartment where the offence was committed. That CCTV recording was alleged to be taken from the apartment office. But as per my knowledge that recording was taken by prosecution from the mobile phone. No date is mentioned or otherwise appearing in that recording. Prosecution also did not mention from where he produced it. When the offence was committed, I was in Delhi. But I have no evidence to prove it. The offence was committed on 12-02-2019 and I was in Delhi between 23 January 2019 to 19 February. Please advise how to disprove prosecution evidence?
Asked from: Haryana
If the recording was not taken from CCTV, you can easily prove that the evidence is manipulated and false. You should raise an objection about its admissibility. When the evidence is produced by the party and the court is exhibiting that evidence then it is resistivity of the opponent to raise objection if that evidence is inadmissible.
The CCTV recording is a piece of electronic evidence. Therefore, the prosecution is bound to produce a certificate under section 65-B of the Indian evidence Act. If the prosecution did not submit certificate, you should raise an objection about its admissibility.
In Anvar P. V. vs P. K. Basheer 2014 and Mohammad Arif vs State of NCT Delhi 2023, the Supreme Court has held that electronic evidence shall not be admitted unless supported by certificate under section 65-B.
You must raise objection at this stage because if you fail then cannot raise such an objection at the later stage. In Dayamathi vs Shaffi 2004 the Supreme Court has held that objection should be raised at the time of admission of evidence but not at the later stage or in appeal.
If that recording was not taken from CCTV the prosecution cannot produce a certificate. In that certificate the prosecution is bound to state the particulars of the device, mode of copying that recording and to prove that the original recording is still stored in the orginal device.
If recording is taken from a mobile phone by concealing the date of recording the evidence itself will become inadmissible. If prosecution produced CCTV recording by concealing its original source, it will not be in position to produce a certificate. So, raising objection you can protect yourself from such false evidence. For more legal help please visit Kanoon India.
Also read: Understanding electronic evidence
Anticipatory bail after charge sheet is permissible in the crpc? The investigating officer has submitted a charge sheet against me and my mother. In these circumstances can we seek anticipatory bail?
Asked from: Delhi
Anticipatory bail is granted when the accused has apprehension of arrest. There would be no such apprehension only after submission of the charge sheet. It is a settled law that the court is not bound to accept the charge sheet.
The court has the power to reject the charge sheet if found that investigation is faulty. In vice-versa the court may take cognizance under 190 crpc and issue a process under section 204 crpc.
So only after filling the charge sheet it cannot be said that you have apprehension of arrest. In absence of apprehension of arrest the court shall reject your application.
Unless and until the court issues warrant you cannot file an anticipatory bail application. Wait until the issue of the warrant thereafter, you can invoke section 438 crpc. For more legal help please visit Kanoon India.
Salary during termination period is illegally stopped by the department on the basis of order of the court. I was illegally terminated from the service by the concerned authority on the false allegation of grave misconduct. When I challenged that order in the high court, the court quashed that order and directed me to reinstate with consequential benefits. Court did not mention anything about the back wages. Department said that there is no specific order about salary during the termination period. I am not entitled to receive a salary on the principle of no work no pay. Should I file a fresh writ petition?
Asked from: Uttar Pradesh
The Hon’ble High Court has ordered your reinstatement with all consequential service benefits. It is a well-established principle of law that salary is an integral part of service benefits. Based on the court’s order, it is evident that you have been fully exonerated, as the termination order has been quashed, and your reinstatement has been directed with all important service benefits. Consequently, you are entitled to the salary for the period of your termination.
Salary during termination period
The phrase “reinstatement with all consequential service benefits” encompasses arrear of salary during termination period. Even though the court’s order may not explicitly state salary payment for this period, the expression clearly implies that salary arrears are included.
Department is bound to pay arrears of salary
On these legal grounds the department is bound to pay the arrears of salary during the termination period. There was no fault on your side. The reasons for stopping payment are not maintainable.
Legal Grounds
- No Fault on Your Part
- The termination was executed without valid grounds and with mala fide intent.
- You were willing and able to work, but the department illegally prevented you from doing so.
- The illegality of the termination has been recognized and rectified by the High Court.
- Right to Livelihood
- Under Article 21 of the Constitution of India, the right to livelihood is a fundamental right and forms an integral part of personal liberty.
- No individual can be deprived of salary except through a procedure established by law. The termination order being illegal means that depriving you of your salary was also unlawful.
- Supreme Court Judgment on “No Work, No Pay”
- The Hon’ble Supreme Court, in Union of India v. K.V. Jankiraman [(1991) 4 SCC 109 : AIR 1991 SC 2010], held that the rule of “no work, no pay” does not apply in cases where an employee, though willing to work, is kept away from work by the authorities through no fault of their own.
- This is directly relevant to your case. The denial of work was due to the department’s illegal act, not your choice or conduct. Therefore, you are entitled to receive salary of termination period.
Legal Remedy
You should not file a fresh writ petition instead of it you should file a contempt application (consult advocate). However, the court did not explicitly say about the salary for termination period but in the expression “reinstate with all consequential service benefits” includes the payment of arrear of salary.
The department’s attempt to invoke the principle of “no work, no pay” is not applicable in your case. The termination order was quashed as illegal, and the High Court has directed your reinstatement with all consequential service benefits, which includes salary arrears for the termination period. You are entitled to these arrears, and the appropriate legal step is to file a contempt application to ensure compliance with the High Court’s order.
Daily wager service is terminated on misbehavior with the senior officer. When I was deputed in the night duty one of the officers came and enquired about the HDR. I handed over the report of HDR which was not signed by the Rt technician. On this ground he abused me and insulted me in front of other staff. On the very next day he served me a copy of the termination order. The reason for termination is unsatisfactory service and misbehave with the senior doctor. Without any enquiry and recording of statements of staff presented on that day the termination order is passed. I am a daily wage employee (doctor). Please suggest how to reinstate in service?
Asked from: Uttar Pradesh
The termination of a daily wage worker’s service on the grounds of misbehavior does not carry a stigma. Similarly, if a daily wage worker is terminated due to unsatisfactory service, such termination is also not considered stigmatic.
In the case of Dipti Prakash Banerjee v. Satyendra Nath Bose [1999 (81) FLR 687 (SC)], the Hon’ble Supreme Court held that the use of terms such as “unsatisfactory work and conduct” in a termination order does not amount to a stigma.
The key distinction between termination simpliciter (a straightforward termination) and punitive termination is very thin and lies in their nature and implications. Termination simpliciter refers to ending employment without attributing fault or misconduct to the employee. In contrast, punitive termination arises from allegations of misconduct and involves a disciplinary proceeding.
The differentiation is subtle and must be determined based on the facts and circumstances of each case. Without reviewing the specifics of the termination order and the attending circumstances, it is not possible for me to definitively conclude whether the order is punitive or simpliciter.
- Termination Simpliciter: When termination is simpliciter, no detailed inquiry or formal procedure is necessary.
- Punitive Termination: In cases of punitive termination, the employer is required to conduct a proper inquiry and establish the guilt of the employee before issuing the termination order.
If the language in the termination order appears vague or non-punitive on the surface but is, in reality, punitive, the affected employee should approach the court. By filing a petition, the employee can pray for the quashing of the termination order and seek reinstatement. The court will evaluate the attending circumstances and the background of the case to decide whether the employee is suitable to continue in service.
Daily wage employment is fundamentally contingent on the requirements of the employing authority. A daily wage worker does not have any inherent legal right to hold a post or demand continued employment. Their engagement is typically temporary and subject to the needs of the employer. When daily wager service is terminated on misbehavior the court does not interfere in that order.
If you can provide a copy of the termination order and details of the case’s background, it would be possible to assess whether the termination was punitive or simpliciter. If the case involves wrongful termination, you may be advised to invoke Article 226 of the Constitution of India for quashing of the termination order. For more legal help please visit Kanoon India.
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I have been terminated from service by following illegal proceedings in a departmental enquiry. There was a specific allegation against me that I gave three lakh rupees to the casual employees without obtaining proper sanction from the finance controller. However, there was an order of the superior officer dated 12-05-2016 to enhance the monthly allowance of the daily wagers in Khareef season. There was no such enhancement in the Ravi season. That is why I gave an increment to the daily wagers. This fact surfaced when one of the branch managers approached the higher authority for enhancement of wages in pursuance of the order dated 12-05-2016. That order was still prevailing but due to some enmity an enquiry was set up against me for such an enhancement.
There are sixteen branches for purchase of Kharif grains. Thirteen of them were giving enhanced wages. I was one of them. But an inquiry was set up against me only. In this scenario, the departmental enquiry was initiated. No document and statement of witnesses were produced to me while framing charges. Finally passed an order of dismissal from the service. I have sent the charge sheet and preliminary inquiry report. Please go through it and advise about the further steps.
Asked from: Uttar Pradesh
The proceedings of departmental enquiry are illegal and violative of settled principles of law. You have been punished with a major punishment. Therefore, it was mandatory for the enquiry officer to appreciate evidence and examine the statement of witnesses to establish the charges.
In your case, oral evidence has not been recorded. No witness was called to prove the charge. Documentary evidence, however, was already in possession of the department, but the enquiry officer did not establish it as true. The enquiry officer has acted as an agent of the department whereas it is settled principle of law that the enquiry officer is not a mouthpiece of the department.
In Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570 the Supreme Court has held that
Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties.
In State of Uttar Pradesh v. Saroj Kumar Sinha, (2010) 2 SCC 772, the Supreme Court has clearly been held that
Enquiry Officer acts as a quasi-judicial authority and his position is that of an independent adjudicator and further that he cannot act as a representative of the department or disciplinary authority and further that he cannot act as a prosecutor neither he should act as a judge; his function is to examine the evidence presented by the department and even in the absence of the delinquent officer, has to see as to whether the unrebutted evidence is sufficient to bring home the charges.
Thus, it was the bounden duty of the enquiry officer to record the statement of witness and examine other evidence produced in support of the charge. In your case no oral evidence was produced.
In State of U.P. v. T.P. Lal Srivastava, (1997) 1 LLJ 831 the Supreme Court has held that holding oral enquiry is mandatory before imposing a major penalty. As well as the division bench of the Allahabad High Court in State of U.P. v. Kishori Lal, (2018) 9 ADJ 397 (DB) (LB) held that
in a case where the inquiry officer is appointed, oral inquiry is mandatory. The charges are not deemed to be proved suo motu merely on account of levelling them by means of the charge-sheet unless the same are proved by the department before the inquiry officer and only thereafter it is the turn of delinquent employee to place his defence.
In the above discussion it is clear that it was the duty of the enquiry officer to substantiate or establish the charges after examination of oral evidence and documentary evidence. When major punishment is likely to be imposed it was mandatory for the enquiry officer to record oral evidence.
In your case no oral evidence was recorded about the enhancement of salary of daily wagers, no daily wagers was produced as a witness to prove that he received enhanced wages. No oral evidence was recorded about the enhanced salary given by other managers of the same district. The government order dated 12-05-2016 was also not established.
It proves that the enquiry is conducted in violation of the settled principle of law. You should file a writ petition in the high court under Article 226 of the constitution of India for quashing of dismissal order. That impugned order is liable to be quashed in light of above-mentioned case laws. For more legal help please visit Kanoon India.
Can I make a claim related to motor accidents in a consumer forum? My father died in an accident due to reckless driving of the car. He hired that car to travel from our home to Chennai. When the vehicle reached XX the driver stopped the car at the restaurant and consumed liquor. My father objected to that behaviour but he has no other option except to travel in that car. He drove that car at a very high speed and recklessly. Due to which the vehicle met with an accident and my father died. In this situation I want to claim compensation from the travel agency because it is a deficiency in service. Can I file that case?
Asked from: Tamil Nadu
This dispute or cause of action falls outside the jurisdiction of the Consumer Forum. The Consumer Forum has jurisdiction to entertain disputes related to goods and services. It can admit complaints concerning defective goods sold to consumers or deficiencies in services provided to them.
According to Section 2(1)(f) of the Consumer Protection Act, a “defect” is defined as any fault, imperfection, or shortcoming in the quality, quantity, potency, purity, or standard expected to be maintained by or under any law by a trader in relation to goods. Section 2(1)(g) defines “deficiency” as any fault, imperfection, shortcoming, or inadequacy in the quality, nature, or manner of performance required to be maintained by or under any law or undertaken to be performed by a person. Furthermore, Section 2(1)(o) defines “service” as follows:
‘Service’ means any description of service made available to potential users, including the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement, or the purveying of news or other information. However, it does not include services rendered free of charge or under a contract of personal service.
In your case, the death was caused by injuries sustained by the deceased (your father) in an accident resulting from reckless driving. The accident was not caused by any defect in the car, nor was there a defect in the vehicle itself.
The death resulting from an accident does not fall under the categories of “defect in goods” or “deficiency in service” as defined under the Consumer Protection Act. Therefore, you cannot invoke its provisions in this matter.
The Consumer Protection Act, 1986, is a general law, whereas the Motor Vehicles Act, 1988, is a special law. Motor Accident Claims Tribunals have been established specifically to handle cases related to motor accidents. As per the principle that special law prevails over general law, Section 165 of the Motor Vehicles Act will apply in this case.
You should file a claim with the Motor Accident Claims Tribunal. The limitation period for filing such a claim is six months from the date of the accident. If the limitation period has expired, you may still file a claim by providing sufficient justification for the delay. The tribunal may condone the delay under Section 5 of the Limitation Act. For more legal help please visit Kanoon India.
Also read:
Can I challenge the promotion of ineligible candidates violating the principle of seniority cum merit because I have not been promoted despite having merit. There were five posts to be filled by promotion. One person is promoted without fulfilling the minimum educational qualification. In this case, I submitted my objection when the final seniority list was published by the departmental promotion committee. But they did nothing about my objection but passed a promotion order. I am on the waiting list. Now I want to challenge the order.
Asked from: Uttar Pradesh
When the criteria for promotion was seniority cum merit, that promotion cannot be done only on the basis of seniority. The merit also included and the DPC had to consider the merit of the candidate belonging to feeder cadre.
It is well established that the principle of seniority-cum-merit for promotion is distinct from both the principle of seniority and the principle of merit-cum-seniority. When promotion is based solely on seniority, merit does not play any role. However, under the principle of seniority-cum-merit, promotion is not granted automatically based on seniority alone; merit also plays a significant role.
The standard application of the seniority-cum-merit principle involves subjecting all eligible candidates in the feeder grade (those meeting the prescribed educational qualifications and required period of service) to an assessment process to determine whether they meet the specified minimum merit. Only candidates who meet the minimum necessary merit are promoted, and this is done strictly in the order of seniority.
In Rajendra Kumar Srivastava v. Samyut Kshetriya Gramin Bank, (2010) 1 SCC 335; B.V. Sivaiah vs K A Babu and others (1998) 6 SCC 720, the Supreme Court held that:
while the principle of seniority-cum-merit places greater emphasis on seniority, the principle of merit-cum-seniority prioritises merit and ability, with seniority being less significant. For assessing the minimum required merit, the competent authority may establish the necessary standards and prescribe the mode of assessment for evaluating the merit of eligible employees.
Thus, it is mandatory for the Departmental Promotion Committee (DPC) to establish minimum merit criteria and to consider only those candidates who meet these criteria for promotion under the seniority-cum-merit principle. A candidate who does not possess the minimum required merit or qualifications cannot be deemed fit for promotion. Therefore, such a candidate must not be considered by the DPC, and any promotion order in favor of such an ineligible candidate would be illegal per se.
You should file a writ petition under Article 226 of the Constitution of India, seeking the quashing of the promotion order on the grounds that it violates the principle of seniority-cum-merit. Prima facie, it appears that an ineligible candidate has been promoted in clear violation of the law. For more legal help please visit Kanoon India.
Related: Promotion is not a right
Can I file a revision if the sub divisional magistrate has wrongly rejected the order of status quo in my case for declaration of title in agricultural land. My father received some agricultural land from his ancestors. We are bhumidhar with the right of alienation. Our family is not residing in the village and some other people are trying to encroach our land. Therefore, we filed a case before the court of SDM, Pharenda. He was granted status quo on the first date but later on he revoked his order. Now the advocates have different views on taking the next step against the order of SDM. One of them is advising that revision is not possible because the case is still pending. And others have advised to file revision. Please suggest.
Asked from: Uttar Pradesh
It appears that you have filed a suit under Section 144 of the Uttar Pradesh Land Revenue Code, 2006, seeking a declaration. In this suit, you requested interim relief under Section 146 of the same code.
However, the Sub-Divisional Magistrate (SDM) has revoked the prior order of status quo that was in your favour, denying the interim relief under Section 146, though the suit under Section 144 remains pending.
In this context, the order rejecting interim relief constitutes an interlocutory order. Established legal precedent dictates that no revision can be filed against an interlocutory order. In Riyasal Ali vs. DDC and Others [2022], the Allahabad High Court has held that a revision is not permissible against an interlocutory order.
Consequently, you cannot file a revision against the impugned order issued by the SDM. Under Section 210 of the Uttar Pradesh Land Revenue Code, a prerequisite for filing a revision is that the order in question must have been passed in a suit conclusively decided by the revenue court. Since your suit is still pending, you cannot file a revision either to the Board of Revenue or the Commissioner.
In this situation, it is advisable to file a petition in the High Court under Article 227 of the Constitution of India. If there is an imminent risk to the suit property, or if the opposing party might cause harm to the property, it is essential that both parties maintain the status quo. Thus, the SDM should not have revoked the prior order maintaining the status quo. For more legal help please visit Kanoon India.
Magistrate has treated my case as a complaint and refused to direct an investigation by the local police. I have filed an application to the magistrate under Section 156(3) of the code of criminal procedure. After more than nine months the magistrate has ordered to lodge a complaint instead of investigation. I have CCTV recording to prove that the accused along with some other person entered my house at night and stole my belongings including some jewelry. On the basis of those CCTV recordings the magistrate has written in order that the facts are in the knowledge of the complainant, and he has sufficient evidence to prove the case therefore, it shall be treated as complaint instead of direction to register FIR. I am aggrieved from the order of the court.
Asked from: Uttar Pradesh
Based on the facts presented, it is inferred that the accused have committed a cognizable offence by entering a dwelling house at night and committing theft, which is punishable under Section 380 of the Indian Penal Code, with imprisonment for up to seven years.
The magistrate appears to have overlooked a crucial aspect when deciding your application. Specifically, the number of accused is more than one, with some still unidentified, and the stolen property remains unrecovered.
Under these circumstances, an investigation by the police, rather than a complaint, would be more appropriate. The police, as a specialised agency, possess the necessary authority to arrest suspects, recover property, and identify those involved.
It also appears that the magistrate processed your application in a routine and mechanical manner. In Suresh Chandra Jain vs. State of M.P. and Another (2001) 2 SCC 628, the Supreme Court emphasised that a magistrate must apply judicial discretion and should not act in a mechanical or casual manner while deciding an application under Section 156(3) of the Cr.P.C.
The magistrate’s decision to direct the police to register an FIR and conduct an investigation, or to treat the application as a complaint, must be reasoned and supported. In Anmol Singh vs. State of U.P. AIR Online 2021 All 632 and Lala Ram vs. State of U.P. 2020, the Allahabad High Court similarly held that
A magistrate must apply judicial discretion in such decisions. An investigation and FIR registration should be directed when the complainant does not know the names of all accused, cannot gather the evidence required to support the case, or where recovery of property can only be facilitated by police action.
The Supreme Court, in the Lalita Kumari case, ruled that an FIR must be registered if the information discloses the commission of a cognizable offence.
In light of these considerations, you should file a petition under Section 528 of the Bhartiya Nagrik Suraksha Sanhita 2023 in the High Court, seeking to quash the Magistrate’s order and have the case reconsidered. For more legal help please visit Kanoon India.
Related: Revision against the order of investigation passed under Section 156 (3) crpc
