[Dr. Ashok Dhamija]

The relevant provision for determining the validity and admissibility of evidence is under Section 19 of the Arbitration and Conciliation Act, 1996.

As per this provision, the following important aspects may be noted in this regard:

• The parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting its proceedings.
• If there is no agreement between the parties, then subject to the provisions of the said Act, the arbitral tribunal may conduct the proceedings in the manner it considers appropriate.
• For this purpose, the arbitral tribunal may also determine the admissibility, relevance, materiality and weight of any evidence.
• It is pertinent to note that the arbitral tribunal is not bound by the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872, in this regard. This means that the arbitral tribunal need not be constrained by the technicalities of these two Acts, i.e., the CPC and Evidence Act. However, generally speaking, the spirit of these laws may be followed in arbitration proceedings even though arbitration tribunal is not bound by them (this is so because these two Act lay down the basic procedures for a fair and just trial).

It may further be noted that in the case of Sohan Lal Gupta v. Asha Devi Gupta, (2003) 7 SCC 492, the Supreme Court has held that there cannot be any dispute with regard to the proposition of law that the parties would be entitled to a reasonable opportunity of putting their case. A reasonable opportunity would mean that a party must be given an opportunity to explain his arguments before the arbitration tribunal and to adduce evidence in support of his case.

The Supreme Court further held that for constituting a reasonable opportunity, the following conditions are required to be observed:

1. Each party must have notice that the hearing is to take place.
2. Each party must have a reasonable opportunity to be present at the hearing, together with his advisers and witnesses.
3. Each party must have the opportunity to be present throughout the hearing.
4. Each party must have a reasonable opportunity to present evidence and argument in support of his own case.
5. Each party must have a reasonable opportunity to test his opponent’s case by cross-examining his witnesses, presenting rebutting evidence and addressing oral argument.
6. The hearing must, unless the contrary is expressly agreed, be the occasion on which the parties present the whole of their evidence and argument.

Section 19 of the Arbitration and Conciliation Act, 1996, is reproduced below:

“19. Determination of rules of procedure.—(1) The arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 (V of 1908) or the Indian Evidence Act, 1872 (1 of 1872).

(2) Subject to this Part, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting its proceedings.

(3) Failing any agreement referred to in sub-section (2), the arbitral tribunal may, subject to this Part, conduct the proceedings in the manner it considers appropriate.

(4) The power of the arbitral tribunal under sub-section (3) includes the power to determine the admissibility, relevance, materiality and weight of any evidence.”

     

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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]

What you need to do is to register a trademark for restricting its use by others. Trademarks are registered under the Trademarks Act, 1999, and the word “trade mark” is defined in this Act in Section 2 as under:

“(zb) “trade mark” means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours; and—

(i) in relation to Chapter XII (other than Section 107), a registered trade mark or a mark used in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services, as the case may be, and some person having the right as proprietor to use the mark; and

(ii) in relation to other provisions of this Act, a mark used or proposed to be used in relation to goods or services for the purpose of indicating or so to indicate a connection in the course of trade between the goods or services, as the case may be, and some person having the right, either as proprietor or by way of permitted user, to use the mark whether with or without any indication of the identity of that person, and includes a certification trade mark or collective mark;”

And, the word “mark” used in the above definition is itself defined in Section 2 of this Act as under:

“(m) “mark” includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof;”

     

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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 have specifically referred to GPF Withdrawal and NOT the GPF advance. These are two different things. GPF advance is repayable, but GPF withdrawal is not repayable.

GPF withdrawal means withdrawal of fund from your savings in your GPF Account, for specified reasons. This amount need not repaid back to your account. The amount withdrawn shall stand debited from your account forever. Such GPF withdrawals are covered under terms and conditions as per Rule 15(1) (A) and (B) of the General Provident Fund (Central Services) Rules, 1960.

GPF withdrawal can be made for the reasons such as higher education of self or of children, legal expenditure, marriage, purchase of consumer items such as TV, washing machines, computers etc. GPF withdrawal can also be made for purchase or construction of house, repairs or renovation of house etc. Therefore, it is clear that you can make GPF withdrawal for purchase of a laptop.

The GPF withdrawal at a time cannot exceed one-half of available balance or six months’ pay, whichever is less. However, the sanctioning authority may permit an advance up to 75% of the available balance in your GPF account, in exceptional cases depending upon the grounds of application. In fact, withdrawal up to 90% of the available balance in your GPF account is also permitted in case of purchase/construction of house / arranging marriage of son or daughter etc.     

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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]

For the Central Government, this situation is covered under Rule 54 of the Central Civil Services (Pension) Rules, 1972. And, the answer is “yes”, i.e., children are entitled to get two family pensions (i.e., in respect of their both parents, who were Central Govt servants and died) subject to certain limits and also subject to other normal conditions. This is covered in sub-rule (11) of Rule 54, which is reproduced below:

“(11)    In case both wife and husband are Government servants and are governed by the provisions of this rule and one of them dies while in service or after retirement, the family pension in respect of the deceased shall become payable to the surviving husband or wife and in the event of the death of the husband or wife, the surviving child or children shall be granted the two family pensions in respect of the deceased parents, subject to the limits specified below, namely, –

(a) (i)    if the surviving child or children is or are eligible to draw two  family  pensions at the rate mentioned in sub-rule (3), the amount of both the family pensions shall be limited to forty-five thousand rupees  per mensem;

(ii)        if one of the family pensions ceases to be payable at the rate  mentioned in sub-rule (3), and in lieu thereof the family pension at the rate mentioned in sub-rule (2) becomes payable, the amount of both the pensions shall also be limited to forty-five  thousand rupees  per mensem;

(b)        if both the family pensions are payable at the rates mentioned in sub-rule (2), the amount of two family pensions shall be limited to twenty-seven thousand rupees  per mensem.

Footnote: Clauses (a) and (b) of sub-rule (11) substituted vide Notification No.38/80/2008-P&PW(A), dated 8th June, 2011, published as GSR 176, dated the 11th June, 2011.”

What this sub-rule basically implies is that either Husband or Wife is entitled for family pension in addition to his / her own pay or pension, if the spouse dies. And, in the case of demise of such husband /wife also, who was receiving family pension for the demise of his/her spouse, the child / children of the deceased parents can also be granted two family pensions subject to the limits prescribed.     

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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 such a situation, since the cheque has bounced due to “stop payment”, you will have to follow the procedure laid down in Section 138 of the Negotiable Instruments Act, and issue notice to the person who issued you the cheque. Thereafter, if need be, you can file a case under Section 138 for cheque dishonour.

Please read the following article for more details on the procedure: http://tilakmarg.com/answers/cheque-bounce-cases-under-section-138-of-negotiable-instruments-act-explained/     

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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]

At the stage of framing of charges or deciding the discharge application, usually the trial court will only whether a prima facie case is made out on the basis of the prosecution evidence. At this stage, the evidence of the accused is generally not seen.

Now that the trial court has refused to discharge you, you have two options: either to face the trial and prove your innocence (with the help of your evidence and by showing that the prosecution case is false or insufficient) OR to challenge the order of the trial court in the higher 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]

Once the marriage is already over legally and even the appeal is also decided, then generally there should not be any legal problem if you have married again.

It is not clear from your question as to what is the Section 482 notice from the high court about. You may have to obtain a copy of the petition / application in which Section 482 Cr.P.C. notice has been received by you and then find out on which issue this petition has been filed. It is not possible for us to inform you that.     

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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]

Merely because your wife has filed a divorce petition and has made an interim prayer for custody of child, does not legally prevent you from filing your own application for custody of the minor child. You can file your own petition / application under GWA and there is no legal restriction.

It your petition is in the same court in which your wife’s petition is pending, then both these petitions may be heard together. If these are in different courts, either party can file a transfer petition before the appropriate higher court to get other petition transferred to the same court.

Both the petitions will be heard on merits and a petition does not become weak on the ground that the opposite party has also filed a counter petition. Ultimately, the case has to be decided on merits.     

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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]

An individual person can DIRECTLY file a case in the Supreme Court only for enforcemnt of his fundamental rights and such case can be filed in the form of a writ petition under Article 32 of the Constitution of India. In other situations (i.e., where there is no violation of the fundamental rights), it is not possible to file a direct case in Supreme Court and a person has to first approach the concerned court which has the jurisdiction for such matter.

It may be noted that Article 32 of the Constitution, which gives a remedy to directly approach the Supreme Court to enforce the fundamental rights, is itself a fundamental right. This is important since a fundamental right cannot be abridged or repealed even by way of a constitutional amendment, if it is considered to be a basic feature of the Constitution. And, it is pertinent to mention that the right under Article 32 has been declared by the Supreme Court as a basic feature of the Constitution.

However, this is only “theory” nowadays. In practice, for last about 30 years or so, the Supreme Court very rarely entertains a direction petition under Article 32 of the Constitution, even though this right itself is a fundamental right. Nowadays, the Supreme Court generally insists that the person concerned should first approach the high court, even if his fundamental right has been violated. So, nowadays, it is in very rare cases (such as in some PILs, for example, in issues of great public importance) that the Supreme Court will directly entertain a writ petition under Article 32.

You have mentioned that your matter relates to issues of employment with the Government. It is not clear whether these issues also involve violation of the fundamental rights (such as, for example, right to equality under Article 14). But, even if a violation of fundamental right is involved in your personal matter, the SC may not entertain your writ petition under Article 32 directly. You may instead try to first approach the appropriate tribunal (such as Central Administrative Tribunal if you are Central Govt servant) or the other appropriate court having jurisdiction. Yes, it may involve delays, but there is little other option.

     

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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. A will can be modified later at any time by the maker of that will during his life time. It is the last will of the person concerned which is supreme and legally binding. So, a testator can make a new will at any time during life time.

In this regard, Section 62 of the Indian Succession Act, 1925 is relevant, which states as under:

“62. Will may be revoked or altered.—A will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by will.”

     

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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]

Furnishing false information in an election affidavit is punishable under Section 125-A of the Representation of the People Act, 1951, and this section is reproduced below:

“125-A. Penalty for filing false affidavit, etc.—A candidate who himself or through his proposer, with intent to be elected in an election,—

(i) fails to furnish information relating to sub-section (1) of Section 33-A; or

(ii) gives false information which he knows or has reason to believe to be false; or

(iii) conceals any information,

in his nomination paper delivered under sub-section (1) of Section 33 or in his affidavit which is required to be delivered under sub-section (2) of Section 33-A, as the case may be, shall notwithstanding anything contained in any other law for the time being in force, be punishable with imprisonment for a term which may extend to six months, or with fine, or with both.”

     

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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]

Cannot comment on the facts of your case in the absence of having seen the detailed facts.

But, generally speaking, it is not possible for a person to sell the property which is in the name of his mother, unless there is a power of attorney given to him by his mother.     

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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]

Cognizance of an offence is taken by the Magistrate after filing of charge sheet by police. It is done under Section 190 of the Criminal Procedure Code. The cognizance is generally taken immediately after the charge sheet is filed. Sometimes, it may take one or two dates after filing of charge sheet.

After the court takes cognizance, it will issue summons to the accused persons. So, if you are the accused, and if you have not been summoned so far to the court, the court will send you summons after taking cognizance. You may wait for that.

It appears that you have not been arrested so far in this case. If so, you need not do much at this stage now that the charge sheet has been filed and at this stage, it may not be useful to file even an anticipatory bail application. Better wait for the summons from the court. Therefore, either face the trial or file a discharge application.     

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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 any property (such as your car) which was stolen, has been seized by the police and if the case is still pending investigation, in that case an application can be made to the court of Judicial Magistrate (or Metropolitan Magistrate, as the case may be) under Section 457 of the Criminal Procedure Code for handing over possession of such property to the person entitled to the possession thereof.

You may therefore apply to such court (which has jurisdiction over the police station concerned) along with proof of ownership of the car, such as the RC, etc.

The Magistrate may give possession of your car to you on supurdgi or superdnama. The court may impose certain conditions, like not selling the case during the period of trial.     

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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]

Section 19 of the Prevention of Corruption Act, 1988, says that “No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction…”.

Thus, there is a bar for taking cognizance by the court against a public servant for a corruption case punishable under above-mentioned sections of PC Act.

The above provision applies to all public servants. There is no exception for a probationer, i.e., a public servant who is still under probation. He is also a public servant (though under probation). Therefore, a sanction would be required by CBI for his prosecution for a corruption case of taking bribe, which is generally registered under Sections 7 and 13(2) of the PC Act.     

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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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