Dr. Ashok Dhamija

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  • in reply to: issue with land used as a common road #2663

    <p style=”text-align: justify;”>Please see the provisions of the Easements Act, 1882. You may have a right of easement to enjoy your property, depending on the facts of the case.</p>
    <p style=”text-align: justify;”>Also examine the sale deed and other relevant documents, like the revenue / municipal map of the place to see as to whether there is a road or way connecting to your plot. If needed and if possible, you may try to execute a rectification deed.</p>
    <p style=”text-align: justify;”>You have mentioned that the report is already in your favour in the SDO court. So pursue that.</p>
    <p style=”text-align: justify;”>Better consult some local lawyer and show him all the relevant documents to get a full and correct advice on facts of your case.</p>     


    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.

    If your father and sisters have not engaged any advocate so far, you can submit the application for exemption on their behalf in an urgent situation. However, there should be some valid ground for their absence. An accused cannot decide himself or herself that the presence is not required in court so he or she would not attend. If it is due to some medical ground or some other urgent or important reason, it is alright and the court may exempt personal appearance on a specific date. But, if an accused avoids to appear on flimsy grounds or himself decides (rather than letting the court decide) that it is not an important date, the court may not take it lightly. In fact, if your father and sisters have any problem and if the regular hearing of the case has not started yet, they can try to seek general exemption from the court in advance till further orders.

         


    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.

    in reply to: Death claim of Army Person #2656

    From your question, it appears that the Army person, who was working as LDC, was working as a civilian in the army (and, not as uniformed person, it appears). This means that he was a Government servant working under the Central Government. It also appears that he died on duty, but not as a consequence of duty related risk such as an army jawan martyred while in action. Please correct me if I am wrong on facts.

    In such a situation, usually he would be subject to the benefits which are available under the Central Civil Services (Pension) Rules, such as family pension, death gratuity, leave encashment, GPF payment, Insurance payment as per rules, etc. There may also be appointment on sympathetic grounds / compensatory job, subject to rules.

    Labour Court will not have jurisdiction in the case of Central Government servants.

         


    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.

    in reply to: Service matter #2655

    The relevant date is not when you applied for promotion, but the date when you were actually denied the promotion ignoring your seniority and your junior was promoted instead. Though you have mentioned that you applied for promotion in 2007, but you have not mentioned on which date actually you were denied your promotion ignoring your seniority and giving promotion to a junior.

    In the matter of promotion, usually the principle of limitation will be applicable. An inordinate delay in filing the petition challenging the denial of promotion may lead to rejection of your petition. In fact, even if you want to file a writ petition in high court under Article 226 of the Constitution (presuming that a writ will be maintainable in your case), please remember that it has been held that though for writ jurisdiction under Article 226 of the Constitution no specific period of limitation is prescribed, but general principles of delay and laches apply. When a petitioner approaches the Court by way of a stale claim, he seeks to unsettle the settled matters, and this should not be permitted.

    The Supreme Court has held that promotions should not be disturbed after an inordinate delay. Merits need not be examined when a belated challenge is made to promotions and seniority, as that would create a sense of uncertainty and insecurity amongst government servants. A person feeling aggrieved must approach the Court at the earliest.

    It has further been held that if anyone feels aggrieved by an administrative decision affecting one’s seniority (which basically leads to denial of promotion), the said government employee should act with due diligence and promptitude and not sleep over the matter. Raking up old settled claims after a long time in questioning seniority etc. is likely to cause administrative complications and difficulties. This would be contrary to the interest of smoothness and efficiency of service. The quietus should not be disturbed and shattered after a lapse of time.

    In the case of Union of India v. Tarsem Singh, (2008) 8 SCC 648, the Supreme Court observed as under:

    “To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.”

    So, please keep these issues in mind. Since your question is vague, I have reproduced the above legal principles for your benefit.

         


    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.

    in reply to: Drink and drive case #2654

    It is not clear from your question as to offences under what sections have been registered against the person concerned.

    Firstly, law is the same even if the accused person is also a policeman. Secondly, what actually happened may perhaps be less relevant than what sections have been applied in the FIR registered or the charge-sheet filed for the offence that occurred.

    In so far as driving by a drunken person is concerned, it is punishable under Section 185 of the Motor Vehicles Act, 1988. Such person shall be punishable for the first offence with imprisonment up to 6 months, or with fine which may extend to Rs. 2000, or with both. Therefore, for this offence, the person can be punished by merely imposing fine, but it all depends on the judicial discretion of the court.

    Now, if such person had merely engaged in verbal arguments with the police personnel when caught while driving as a drunken person, then that may not amount to any serious offence. But, sometimes, in such cases, the police may even slap a charge under Section 353 of IPC. But, even this offence is punishable with imprisonment up to two years, or with fine, or with both. So, here also, the punishment of only fine may be imposed if the court deems it fit.

         


    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.

    The Magistrate hearing a complaint under Protection of Women from Domestic Violence Act is required to give an opportunity of being heard to the respondent. The respondent can file his counter-affidavit and can give his own evidence. Therefore, if you feel that the Domestic Incidence Report (DIR) filed by the Protection is factually incorrect, then you have the right to bring the correct facts to the notice of the Magistrate. Bring all necessary facts and evidence to the knowledge of the Magistrate to counter the false report given in the form of DIR. A false fact can be countered by a correct fact, and that is what you have to do. If you give good evidence of the correct facts, the Magistrate would consider that. DIR is not the gospel truth. It can be denied by brining on record the true facts.

         


    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.

    You’ll have to file a review petition in the Supreme Court.

    Please see PART-IV – ORDER XLVII – REVIEW (at page 51) of the Supreme Court Rules, 2013, which is available online at this link. Here, you’ll find the relevant provisions in the Supreme Court Rules about filing a review petition. Else, you may engage an advocate in the Supreme Court for this purpose.

         


    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.

    in reply to: How employment contract comes into existence? #2646

    As per the provisions of the Contract Act, a contract may be in writing, or it may be verbal, or it may in fact even be implied contract. No specific format is prescribed for a contract. A contract is basically a proposal and its acceptance.

    As far as Contract Act is concerned, there is no specific requirement of a formal employment contract being signed between the employer and employee, or of any formal appointment letter being issued.

    In the situation described in your question, if an employee joins a firm on the basis of an offer of employment and gives joining report, and signs attendance register everyday, it would be considered as an employment contract or agreement.

    At the same time, while it is not binding or mandatory, it may be desirable that such a contract should be in writing or in a formal form to avoid any future disputes.

         


    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.

    in reply to: Cancellation of a sale deed executed by impersonation #2645

    You can file a suit for declaration that the sale deed is void ab initio since it was executed by playing fraud by way of impersonation.

    At the same time, a sale deed executed by impersonation may, in the facts of a case, also amount to an offence of cheating by impersonation, as defined under Section 416 IPC, which is punishable under Section 419 of IPC. If it the case in your matter, you may file a criminal complaint under Section 419 IPC also.

         


    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.

    Offence under Section 406 IPC can be compounded by the person who is the owner of property in respect of which breach of trust has been committed. And, offence under Section 420 IPC can be compounded by the person who was cheated. Therefore, these offences are to be compounded basically by the victim of the offence.

    Therefore, I think it should be possible to compound the offences, mentioned by you, in the circumstances mentioned by you. If needed, the 3 accused persons who are outside India, may give power of attorney to someone in India to be present or file application.

         


    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.

    in reply to: Power of attorney on behalf of co-owner #2642

    Power of attorney issued by one brother on behalf of his brother (who is co-owner of the property) would not be valid under law. Since the property is co-owned by two brothers, each brother can give power of attorney in respect of his own share in the property. It is not possible for a person to give a power of attorney in respect of a property or in respect of share in property which he does not own and for which he is not authorised under law.

         


    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.

    in reply to: IO does not want to testify #2641

    It is for the prosecution to decide whom to produce as prosecution witnesses. You, as accused person, cannot dictate to the prosecution in this regard. The prosecution can drop its witnesses. At the same time, if the prosecution drops any important or crucial witness, whose evidence is essential to prove the prosecution case, then the court may warn the prosecution that it may have adverse consequences for the prosecution case. Dropping a crucial witness may have serious adverse consequences on the prosecution case.

    You, as an accused, cannot dictate to the prosecution as to who should be produced as prosecution witnesses. At the same time, if there is some prosecution witness who is essential for your case, you can request the court to examine such witness and point out the circumstances. The court has the power to examine any person even if he is neither a prosecution witness nor a defence witness. Further, even if the court does not agree with your suggestion, you have the option to examine such prosecution witness as a defence witness, if you are confident that such witness would be beneficial to your case.

    As regards the facts mentioned by you, these can be shown to the court, may be during the arguments stage, if the IO does not appear as a witness. If the court is convinced, it can force the IO to appear and in any case, if there is documentary evidence to prove these facts, action may perhaps be initiated against the IO even without his cross-examination if there is a default on his part.

         


    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.

    in reply to: Admissibility of Electronic Evidence #2639

    (1) If the original document (in this case, the original electronic record) is produced in the court, that itself is admissible in the court. However, admissibility and reliability of evidence are two different things. Submission of primary evidence makes it admissible. But, whether such primary evidence is reliable and trustworthy and how much weight can be attached to such evidence during trial, are different issues. It is for these things, i.e., whether such evidence is reliable also, one may need scientific analysis in a given situation.

    (2) The answer to the second question would depend on the facts of the case. Perhaps, you are referring to a trap case; in such a case, if the details such as the make, serial number, etc., of the memory card have been mentioned in the pre-trap panchnama / memorandum, then they may have to be identified at the time of production of such primary evidence to prove that it is the same memory card. But, there may be other types of cases, where the recording is not done in a pre-planned manner and may have occurred in a natural course of events, then such identification features of the memory card may not have been mentioned anywhere in advance. However, if the accused raises valid objection to show that such device or memory card is not the primary evidence (i.e., this was not the original device, on which the voice was first recorded), then the prosecution may have to prove that this in fact was the original device and is thus the primary evidence. How this is done is a matter that depends on the facts of the case.

         


    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.

    You have not clarified whether these properties of your grandfather are his self-acquired properties. If so, during his life-time, your grandfather has legal right to dispose of the self-acquired properties in whatever way he likes. There is no legal restriction on that.

    At the same time, while you may not have a legal remedy in such situation, you can definitely speak to your grandfather and convince him of the need to give some property to your father also, keeping in view the future needs of you and your brother/sister.

         


    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.

    in reply to: Nbw issuesed #2632

    (1) Definitely, a statement made under Section 164 of the Cr.P.C. carries more weight than a statement of the same witness under Section 161 of the Cr.P.C.

    (2) Kidnapping offence does not appear to be a compoundable offence. Therefore, the accused persons will have to try to get the case quashed from the high court on the basis of the compromise, if any such compromise is arrived at by the accused and the victim. So, it depends, whether the whole case is quashed (including the case against you) or the case is quashed qua only the other 3 accused persons who compromise with the victim.

    (3) Under law, a passport can be revoked on the basis of a criminal case pending prosecution in a court of law in India.

    (4) The best way to get the non-bailable warrant (NBW) cancelled is to appear before the court and make an application to the court. If you are not appearing before the court, you may still file an application for cancellation of the NBW in case you have some strong grounds to get it done.

         


    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.

Viewing 15 posts - 1,126 through 1,140 (of 2,167 total)