[Dr. Ashok Dhamija]

It is true that Section 21(2) of the Legal Services Authorities Act, 1987 lays down that every award made by a Lok Adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any court against the award.

It is also true that in P.T. Thomas v. Thomas Job, (2005) 6 SCC 478 : AIR 2005 SC 3575, a 2-judge bench of the Supreme Court held that the award of Lok Adalat is final and permanent which is equivalent to a decree executable, and the same is an ending to the litigation among parties.

However, it is a well-established principle of law that the writ jurisdiction of a high court cannot be barred even in such situation.

In fact, the fully correct view in this regard has been laid down in the case of State of Punjab v. Jalour Singh, (2008) 2 SCC 660 : AIR 2008 SC 1209, where a 3-judge bench of the Supreme Court held that:

“ It is true that where an award is made by the Lok Adalat in terms of a settlement arrived at between the parties (which is duly signed by parties and annexed to the award of the Lok Adalat), it becomes final and binding on the parties to the settlement and becomes executable as if it is a decree of a civil court, and no appeal lies against it to any court. If any party wants to challenge such an award based on settlement, it can be done only by filing a petition under Article 226 and/or Article 227 of the Constitution, that too on very limited grounds. But where no compromise or settlement is signed by the parties and the order of the Lok Adalat does not refer to any settlement, but directs the respondent to either make payment if it agrees to the order, or approach the High Court for disposal of appeal on merits, if it does not agree, is not an award of the Lok Adalat. The question of challenging such an order in a petition under Article 227 does not arise. As already noticed, in such a situation, the High Court ought to have heard and disposed of the appeal on merits.”

Last week, on 7^th September 2017, in the case of Bharvagi Constructions v. Kothakapu Muthyam Reddy, 2017 SCC OnLine SC 1053, the Supreme Court has reaffirmed the above decision in the case of State of Punjab v. Jalour Singh by holding that

“…the aforesaid law laid down by the Supreme Court is binding on all the Courts in the country by virtue of mandate of Article 141 of the Constitution. This Court, in no uncertain terms, has laid down that challenge to the award of Lok Adalat can be done only by filing a writ petition under Article 226 and/or Article 227 of the Constitution of India in the High Court and that too on very limited grounds.

In the light of clear pronouncement of the law by this Court, we are of the opinion that the only remedy available to the aggrieved person (respondents herein/plaintiffs) was to file a writ petition under Article 226 and/or 227 of the Constitution of India in the High Court for challenging the award dated 22.08.2007 passed by the Lok Adalat. It was then for the writ Court to decide as to whether any ground was made out by the writ petitioners for quashing the award and, if so, whether those grounds are sufficient for its quashing.

The High Court was, therefore, not right in by passing the law laid down by this Court on the ground that the suit can be filed to challenge the award, if the challenge is founded on the allegations of fraud. In our opinion, it was not correct approach of the High Court to deal with the issue in question to which we do not concur.”

Therefore, while no regular appeal, suit, review, etc., can be filed against award of the Lok Adalat, it can be challenged under Article 226 / 227 of the Constitution before the high court on certain limited grounds. This is the correct view of law on this issue.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

If you feel that the will is forged, then naturally you’ll have to contest it and show that it is a forged will.

If your father-in-law had more than one properties (as you claim), then it is possible to have different will for different property. Moreover, since your wife is also a legal heir, she should also know about other properties of her father. If she knows about other properties of her father and no will has been claimed or produced for such other properties, who has stopped her from initiating proceedings for obtaining succession certificate in respect of such properties?

Usually, every will may mention that it is the last will (in respect of the properties mentioned therein) since at the time of its preparation it would have been the last will. If you believe that it is not the last will, then you (or other interested parties) have to produce a subsequent will which might have superseded the said so-called last will. In the absence of any subsequent will being produced, such will may be accepted as the last will if found to be genuine.

Naturally, if you are not able to show that the will is fraudulent or forged, it may be accepted as genuine.

As I have already mentioned, if there is no will in respect of some properties, you may initiate proceedings for obtaining succession certificate in respect of the same. You need not wait for others to produce will in respect of such properties. If someone has a will in respect of those properties, he or she would object to such proceedings and would produce the relevant will, if any. This is what is I think.

It may be advisable for you to engage some lawyer to help you in court proceedings in view of complications suspected by you in these issues.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

It is up to the appellate court to direct presence of the accused or exempt his personal appearance at the time of hearing of the appeal against acquittal filed by the complainant or by the State, as the case may be.

In fact, under Section 390 Cr.P.C., the High Court may even direct arrest and custody of the accused in appeal from acquittal:

“390. Arrest of accused in appeal from acquittal.— When an appeal is presented under Section 378, the High Court may issue a warrant directing that the accused be arrested and brought before it or any subordinate Court, and the Court before which he is brought may commit him to prison pending the disposal of the appeal or admit him to bail.”

The complainant and accused are supposed to bear their own expenses. The accused may seek legal aid lawyer if he does not have money.

Since appeal against acquittal is also one of the provisions made in the law, you cannot stop the complainant from exercising his legal remedies available to him under law. If the complainant is exercising his right of appeal given to him under law, I don’t think it can be said to be harassment of the accused. In fact, if the appellate court feels that appeal against acquittal filed by the complainant is bogus, it may be dismissed at the early stage, and where leave is required to be taken for filing such appeal, such leave itself may be refused.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

This is what was observed by the National Consumer Disputes Redressal Commission (NCDRC) in the case of Harpal Arya v. Housing Board Haryana, decided on January 4, 2016:

“Thus, from the aforesaid documents, it is manifestly clear that petitioner had executed the Hire Purchase Tenancy Agreement with the respondent and in pursuance thereof, he had also taken possession of house on 27.10.2004. Further, as per possession certificate it is clear, that petitioner had taken the possession, without any pre conditions. Now after getting the possession, it does not lie in the mouth of petitioner to state, that house is not in a habitable condition. Once petitioner, had taken the possession with open eyes and without any pre-conditions, he cease to be a consumer. The consumer complaint was filed on 25.05.2005, that is, after about seven months of taking over the possession of the house. Therefore, on the face of it petitioner was not a ‘Consumer’ at the time of filing of the complaint, since there was no privity of contract between the parties. Therefore, complaint is liable to be dismissed on this ground alone.”

Without seeing your detailed documents, it is not possible to give an opinion on the facts of your case, as to whether your case is covered within the above judgment, the relevant extract of which is reproduced above for your benefit. You may consult some lawyer on this issue by showing him your detailed documents.

On the second issue of your complaint being time-barred, let me point out that as per Section 24-A of the Consumer Protection Act the limitation period is 2 years from the date on which the cause of action has arisen. However, the consumer forum has the power to condone the delay in appropriate cases if sufficient cause is shown for the delay.

In your case, from the facts stated by you, the cause of action appears to have arisen when the extra payment was charged or was made. This appears to be sometime between 2011 to 2013 (as mentioned by you). Since your consumer complaint appears to be about charging extra money for Sewerage Treatment Plant and Electrical Sub-stations, the cause of action will be on the date when it was charged or paid. You appear to have filed the consumer complaint in 2016 or thereafter after getting RTI reply. Therefore, it appears to be beyond the limitation period of 2 years. But, you can file an application for condonation of delay, justifying the delay.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Yes, recently, I had replied that Family pension to unmarried daughter of more than 25 years age is permissible.

However, please note that the Office Memorandum No. 1/19/03-P&PW (E) dated 6^th September 2007, mentioned in the above reply was issued by the Government of India, Ministry of Personnel, P.G. & Pension, Department of Pension & Pensioners’ Welfare. It would apply in the case of Central Government employees. In your question, you have not clarified under which Government your father was working. If he retired from the Central Government, then your sister may be eligible. But, if your father was working in some other Government or some other organisation, then you’ll have to check the relevant rules applicable in that Government or organisation.

If your sister fulfils the conditions mentioned in the above circular, then you may have to the contact the authority in the concerned department which had issued the orders for family pension to your sister, and bring to the knowledge of the said authority the directions of the Government of India in this regard. If they ask you to complete certain formalities, like giving proof of your sister being unmarried, then please submit such proof as per the format required by them (such as by affidavit or as per their requirements).

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Recently, I have answered a similar question, which is available at: Filing divorce petition in 3 months of the marriage.

Please read it and I think it should answer your question.

Even for a divorce by mutual consent, there is a condition that husband and wife have been living separately for a period of one year or more. See: Mutual consent divorce – criterion of one year separation whether necessary?

You may also see the following related articles:

• Divorce by mutual consent – conditions and procedure
• Divorce after 15 days of marriage

 

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

A decision of the Supreme Court or of a High Court can be reviewed in a Review Petition. Such review petition is filed before the same court, generally on very limited grounds, such as an error apparent on the face of the record. Courts generally do not unsettle a decision in a review petition, unless there is a strong case. The review petition goes to the same bench of judges that delivered the judgement or order sought to be reviewed.

Article 137 of the Constitution provides that subject to provisions of any law and rule made under Article 145, the Supreme Court has the power to review any judgement pronounced or order made by it. Under Supreme Court Rules, 2013, such a petition needs to be filed within 30 days from the date of judgement or order. Under these rules, such a review petition can be submitted only on some limited grounds permissible under these rules, since a review petition is not like an appeal.

You can file a review petition subject to the above limitations. In the Supreme Court, the review petition can be filed against an order of the same court in SLP / appeal (civil / criminal) or in a writ petition, etc.

If a review petition is also dismissed by the Supreme Court, a curative petition can be filed thereafter on some certain grounds. The system of curative petition was started after the decision of the Supreme Court in the case of Rupa Ashok Hurra vs. Ashok Hurra, (2002) 4 SCC 388 : AIR 2002 SC 1771. A tedious process has been laid down for filing a curative petition, inter alia, including, that the curative petition shall contain a certification by a Senior Advocate with regard to the fulfilment of the requirements for filing the curative petition. The curative petition is heard by a bench consisting of the 3 senior most judges of the Supreme Court (including the Chief Justice of India) and the 2 or 3 judges who had initially passed the order against which curative petition is being filed. Some of these judges may be common and some may have retired. A bench of judges is constituted specially, consisting of such judges who are available.

You may read the following articles for more information:

• Supreme Court AOR Examination – Leading Cases – Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388 (for curative petition).
• Success Rate of Review Petition and Curative Petition in Supreme Court.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Making a false statement in court amounts to the offence perjury, which may be punishable under relevant sections of IPC (such as under Section 193 IPC or similar other applicable section).

You can file an application in the Magistrate court which is hearing the domestic violence case where such false statement has been made by your wife, to initiate action against her under Section 340 Cr.P.C. for the offence of perjury.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

In case of a defamation, both civil and criminal case can be filed.

In respect of one cause of action, one civil and one criminal case of defamation can be filed against the person concerned. If more such cases have been filed on the basis of a single cause of action, application may be filed for hearing them together.

However, if there are different causes of action (such as different defamatory statements issued at different times), then more number of such cases can be filed, i.e., one each for each cause of action.

For example, recently, as you might have seen in media, Union Finance Minister Arun Jaitley has filed two defamation cases against Delhi Chief Minister Arvind Kejriwal on the basis of two different causes of action, i.e., two different defamatory statements.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Now that the charge sheet is already filed and the case is already being prosecuted and statements of witnesses are being recorded by the court during trial, there is no scope for improvement in the charge sheet. Even seeking further investigation may not be practical at this stage.

If your statement in court differs from your statement recorded by police and given along with the charge sheet, then the accused will get opportunity to point out contradictions in the earlier statement recorded by police. This will show as if you are improving upon your earlier statement. It may sometimes be harmful to the prosecution case. So, you have to take a call.

However, you are free to state before the court whatever is the true version of the incident. Bring all the true facts to the knowledge of the court through your evidence. There may be some contradictions with your previous statement recorded by police, but then if you are stating the truth, don’t worry about those contradictions and leave it to the court. Explain all the contradictions to the extent possible in the most cogent and consistent manner. If the lawyer for the accused asks you in cross-examination that your previous statement recorded by police does not contain this or that fact, then say truthfully that you had stated those facts to the police (if you had done so, as you have mentioned) but it appears that the police did not record them.

Remember that ultimately it is your statement in the court which is finally read in evidence, and the statement recorded by police can only be used for pointing out contradictions.

Being complainant, you can have your private lawyer who would then have to assist the public prosecutor. But, it is not mandatory for you to engage your private lawyer. Without a private lawyer also, you can state the truth in your evidence before the court, which you must.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

No. FIR is only the starting point of a criminal case. It sets the criminal law in motion. Investigation is conducted on the basis of the FIR given by the informant / complainant. Loss mentioned in the FIR may only be as per the version of the complainant, which may not always be correct and truthful. Sometimes, it may be exaggerated and may even be false.

After a thorough investigation, the police tries to find out the truth in the allegations mentioned in the FIR and collects evidence, if any, to support the allegations made in FIR. Depending on evidence that becomes available during the investigation to support the allegations contained in the FIR, police may file charge sheet. Sometimes, after investigation, the allegations made in the FIR may be found to be false also, in which case a closure report is filed by police.

In fact, even the charge sheet may not contain the conclusive proof, including proof of the loss, if any. Ultimately, the contents of the charge sheet are also required to be proved in the trial stage by leading evidence.

Therefore, FIR is not the sufficient or conclusive proof of loss, if any, mentioned therein.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Firstly, let me point out that the Sessions Court and the High Court, both have concurrent powers in the matter of grant of anticipatory bail. If the Sessions Court has rejected your application for anticipatory bail, you have the option of approaching the High Court for grant of anticipatory bail. But, it is your call whether or not you should approach the High Court with an application for anticipatory bail.

Secondly, grant of anticipatory bail means that in the event of arrest, the person concerned shall be released on bail, in terms of the anticipatory bail order. So, it implies that if your application for anticipatory bail has been rejected, then in the event of your arrest you may be produced before the court where you’ll have to apply for regular bail under Section 437 or 439 of the Cr.P.C., and in such situation you may also be remanded to police custody or jail custody by rejecting your application (if any) for regular bail.

So, anticipatory bail is a protection against custody in the event of arrest.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Anticipatory bail is granted under the provisions of Section 438 of the Criminal Procedure Code. This section itself makes it clear that anticipatory bail can be granted only in a non-bailable offence. There is no provision for granting bail in a bailable offence.

In fact, there is no need for obtaining anticipatory bail in a bailable offence, since regular bail is generally granted as a matter of right in a bailable offence, under the provisions of Section 436 of the Cr.P.C.

In the case of G. Muthuswami v. State of Kerala, 1980 Cri LJ 1021 (Ker), where the petitioner had filed an application for anticipatory bail under S. 438 Cr.P.C. in a case under Sections 427 and 447 of IPC both of which were bailable offences, it was held that as Section 438, Cr.P.C. can be invoked only when a person is accused of a non-bailable offence, the aforesaid application was dismissed being not maintainable.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

You may have to examine the relevant rules applicable in your organisation relating to suspension and see after how much time suspension is required to be reviewed periodically and whether there is a maximum time limit for suspension.

Since you appear to have been suspended in respect of an offence, the concerned authority may keep you under suspension till the completion of the trial in that offence, or till you get discharged from the offence, depending on what your rules say.

Though you have mentioned that the offence is under Section 304 (IPC), there is a possibility that it may in fact be under Section 304-A IPC, which is a lighter offence comparatively.

Since you feel that you have been wrongly involved in the said offence, you can consult some local lawyer and file an application for discharge if the evidence against you is not sufficient.

If needed, you may also challenge your suspension in the appropriate court / tribunal, in consultation with your lawyer.

Usually, subsistence allowance at the rate of 50% is paid during suspension, which may be increased or decreased later depending on rules and depending on conduct of the suspended employee. If no subsistence allowance is being paid to you, you should first represent before the authority concerned, and thereafter, if needed, you should challenge it in the appropriate court / tribunal.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

As per Section 107 of the Transfer of Property Act, 1882, a lease of immovable property for any term exceeding one year can be made only by a registered instrument.

Likewise, as per Section 17(1)(d) of the Registration Act, 1908, it is mandatory to register a lease of an immovable property for any term exceeding one year.

A rent agreement is basically a lease agreement, though there may be a subtle difference between the two.

It is thus necessary to register the rent agreement in respect of an immovable property if it is for a period exceeding one year.

In addition, there may be registration requirements laid down under the relevant State Acts also. For example, Section 55(1) of Maharashtra Rent Control Act, 1999, requires that:

“Notwithstanding anything contained in this Act or any other law for the time being in force, any agreement for leave and licence or letting of any premises, entered into between the landlord and the tenant or the licensee, as the case may be, after the commencement of this Act, shall be in writing and shall be registered under the Registration Act, 1908.”   

 

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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