[Dr. Ashok Dhamija]

There is no provision of filing an appeal against a judgment of the Supreme Court. However, if you feel that the order of the SC in a particular case is legally wrong, you have the option of filing a Review Petition before the Supreme Court on some limited grounds, which is generally listed before the same bench.

After the Review Petition is also unsuccessful, in certain situations, you can also file a Curative Petition before the Supreme Court. You can read more about the Curative Petition in this article: http://tilakmarg.com/notes/supreme-court-aor-examination-leading-cases-rupa-ashok-hurra-v-ashok-hurra-2002-4-scc-388/.

But, please be aware that success rate in a Review Petition and/or Curative Petition is very less. For more details, please see: http://tilakmarg.com/answers/success-rate-of-review-petition-and-curative-petition-in-supreme-court/.
     

---

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 far as I know, there is no restriction imposed in the Advocates Act, 1961, on an advocate on gifting his property. The Advocates Act is concerned mainly with the professional conduct of the advocate, in addition to their enrolment, qualifications, discipline, etc.

Under the rules framed under the authority of the Advocates Act, there are certain restrictions placed by the Bar Council on any business being carried on by an advocate while also being engaged in practice as an advocate. But, as far as I have seen, there is no restriction on gifting of his property by an advocate to his relatives or to the HUF of which he is a member. In fact, such a restriction under rules made under Advocate Act may not be permissible since gifting of one’s property is a personal matter which is unconnected with the professional conduct as an advocate. However, if the HUF (of which the Advocate is a Karta and to which the Advocate gifts some property or money) is involved in doing some active business, then you may perhaps have to check the relevant rules / guidelines of your state bar council as to whether there are any restrictions on carrying on of a business by HUF of which the advocate is a karta. Different state bar councils may have different rules in this regard. In such a case, the doing of business may perhaps have to be at least reported to the bar council. As per my information, generally speaking, if you are only a sleeping member (i.e., not conducting the business yourself) of HUF, it may perhaps be permissible; but, you better check from your state bar council. But, in so far as your main question goes, i.e., relating to gifting to property or money to HUF, I don’t think there is any restriction on an advocate gifting his property or money to HUF of which he is Karta.

     

---

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. The Karta and members of a Hindu Undivided Family (HUF) can gift their personal income to the HUF. And, there is no limit on the amount of such gift. Moreover, there is no tax applicable on such gift.

The amount so transferred by way of gift can be in the form of cash, jewellery or any movable property or also in the form of any immovable property. There is no tax on such gift if the gift is given to the HUF by the Karta or any member of the HUF.

The relevant provision is contained in Section 56(2)(vii) of the Income Tax Act, 1961, the relevant part of which is reproduced below:

“(2) In particular and without prejudice to the generality of the provisions of sub-section (1), the following incomes shall be chargeable to income tax under the head “Income from other sources”, namely:—

(vii) where an individual or a Hindu undivided family receives, in any previous year, from any person or persons on or after the 1st day of October, 2009,—

(a) any sum of money, without consideration, the aggregate value of which exceeds fifty thousand rupees, the whole of the aggregate value of such sum;

(b) any immovable property,—

(i) without consideration, the stamp duty value of which exceeds fifty thousand rupees, the stamp duty value of such property;

(ii) for a consideration which is less than the stamp duty value of the property by an amount exceeding fifty thousand rupees, the stamp duty value of such property as exceeds such consideration:

Provided that where the date of the agreement fixing the amount of consideration for the transfer of immovable property and the date of registration are not the same, the stamp duty value on the date of the agreement may be taken for the purposes of this sub-clause:

Provided further that the said proviso shall apply only in a case where the amount of consideration referred to therein, or a part thereof, has been paid by any mode other than cash on or before the date of the agreement for the transfer of such immovable property;

(c) any property, other than immovable property,—

(i) without consideration, the aggregate fair market value of which exceeds fifty thousand rupees, the whole of the aggregate fair market value of such property;

(ii) for a consideration which is less than the aggregate fair market value of the property by an amount exceeding fifty thousand rupees, the aggregate fair market value of such property as exceeds such consideration:

Provided that where the stamp duty value of immovable property as referred to in sub-clause (b) is disputed by the assessee on grounds mentioned in sub-section (2) of Section 50-C, the Assessing Officer may refer the valuation of such property to a Valuation Officer, and the provisions of Section 50-C and sub-section (15) of Section 155 shall, as far as may be, apply in relation to the stamp duty value of such property for the purpose of sub-clause (b) as they apply for valuation of capital asset under those sections:

Provided further that this clause shall not apply to any sum of money or any property received—

(a) from any relative; or

(b) on the occasion of the marriage of the individual; or

(c) under a will or by way of inheritance; or

(d) in contemplation of death of the payer or donor, as the case may be; or

(e) from any local authority as defined in the Explanation to clause (20) of Section 10; or

(f) from any fund or foundation or university or other educational institution or hospital or other medical institution or any trust or institution referred to in clause (23-C) of Section 10; or

(g) from any trust or institution registered under Section 12-AA.

Explanation.—For the purposes of this clause,—

(a) “assessable” shall have the meaning assigned to it in the Explanation 2 to sub-section (2) of Section 50-C;

(b) “fair market value” of a property, other than an immovable property, means the value determined in accordance with the method as may be prescribed;

(c) “jewellery” shall have the meaning assigned to it in the Explanation to sub-clause (ii) of clause (14) of Section 2;

(d) “property” means the following capital asset of the assessee, namely—

(i) immovable property being land or building or both;

(ii) shares and securities;

(iii) jewellery;

(iv) archaeological collections;

(v) drawings;

(vi) paintings;

(vii) sculptures;

(viii) any work of art; or

(ix) bullion;

(e) “relative” means,—

(i) in case of an individual—

(A) spouse of the individual;

(B) brother or sister of the individual;

(C) brother or sister of the spouse of the individual;

(D) brother or sister of either of the parents of the individual;

(E) any lineal ascendant or descendant of the individual;

(F) any lineal ascendant or descendant of the spouse of the individual;

(G) spouse of the person referred to in items (B) to (F); and

(ii) in case of a Hindu Undivided Family, any member thereof;

(f) “stamp duty value” means the value adopted or assessed or assessable by any authority of the Central Government or a State Government for the purpose of payment of stamp duty in respect of an immovable property;”

      

---

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]

Since there is a conviction under the Prevention of Corruption Act, you will have to file a regular Appeal before the High Court under the provisions of [Section 374 of] the Criminal Procedure Code for setting aside the order of conviction. There is no need to file application / appeal under Section 482 since there is a specific provision of appeal under Section 374 of Cr.P.C. Please consult some good lawyer at your place who is conversant in anti-corruption laws and file your appeal in high court on all the relevant grounds.     

---

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 I mentioned for S-32 appears to be applicable to other pay scales also at the time of the 6th CPC. Please see Office Memorandum dated 30 August 2008 of the Ministry of Finance, Department of Expenditure, GOI, which will provide these details to you. This means for most of the old pay scale, the minimum of old basic when increased by DA and fitment allowance goes above the minimum of the new pay scale.

Anyway, you’ll have to challenge the discrimination in your case on the basis of your own 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.

[Dr. Ashok Dhamija]

I agree with you that you have a valid point. But, the problem is that you’ll have to setup your case before a court of law that has jurisdiction and prove that there is violation of your right to equality. Other than DS Nakara case, there are several judgments on Article 14. The problem arises because the date of implementation was from a back date otherwise it would not have led to this anomaly. Perhaps you can challenge the date of implementation and in the alternative argue that the same principle should be applied for everybody who was already in service when the pay revision was implemented. But, what I had pointed out was that a similar anomaly existed even in the implementation of 6th Central Pay Commission. For example, the S-32 pay scale up to 2006 was 24050-650-26000, and the new revised pay scale was 75500-80000. But, with DA merger and fitment, the minimum basic of the old pay scale (i.e., 24050) was NOT equated with the minimum basic in new pay scale of 75500, but the equivalent was fixed at 77765. So, there was a similar anomaly for somebody who was already at the minimum basic of old pay scale when pay scale was revised and for somebody who got appointed to it after the revision. The difference is more than 2000.

No doubt, there appears to be an anomaly in your case and you’ll have to challenge it by properly taking up grounds for challenge. Please consult some local lawyer and show him all your relevant details, who will be in a better position after seeing full details and circulars, etc.     

---

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]

I have tried to see the implementation of the 6th Central Pay Commission with effect from 01.01.2006. What I found was that there was a similar anomaly. In fact, it appears that when pay scales are revised, the existing employees (whether at the minimum of the pay scales or at some other stage of the pay scales) get merger of DA at the prescribed percentage and also a fitment allowance is given. For example, for 6th Central Pay Commission implementation, 40% fitment was given. Such benefits are given to help the existing employees. On the other hand, if a new employee joins after the revision of the pay scale, he has to start at the minimum of the new pay scale and he cannot get advantage of the previous DA and fitment allowance. This may usually be one time anomaly. I noticed a similar anomaly in 6th CPC, where those who were at the minimum of the old pay scale got revised pay in the new pay scale which was higher than the minimum of the new pay scale. The problem in your case is arising because the new pay scales were implemented from a back date but the back date was fixed just before your own joining date. In such circumstances, chances of a petition succeeding appear to be very less, but you want you can try to approach the appropriate court or tribunal which has jurisdiction to hear your 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.

[Dr. Ashok Dhamija]

Clause (1) of Article 136 of the Constitution provides as under:

“Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.” [Emphasis supplied by me.]

Therefore, theoretically speaking, the Supreme Court has the power under Article 136 to grant special leave (in an SLP) from any judgment, etc., from any court or tribunal in India. This includes Sessions Court also. But, in practice, the Supreme Court will not allow an SLP being filed before it directly from the Sessions Court and it will direct you to first approach the High Court under appropriate proceedings. Therefore, you must first approach the High Court under appropriate proceedings and, if needed, then only approach the Supreme Court.
     

---

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]

Full details are not mentioned in your query. From what you have mentioned, it appears that the first person was already working in the pay scale 8600-14600 as on 01.01.2007 when the new pay scales were introduced (since he was appointed in May 2006). On the other hand, the second person was either in a lower scale (which you have not mentioned) or was not in service (if a direct appointee) as on 01.01.2007 since he was placed in the above pre-revised scale of 8400-14600 after this date of 01.01.2007 (i.e., in May 2007). Therefore, it appears that the extra difference in their revised pay after revision of pay may be due to the difference in their old pay scales as on 01.01.2007 with effect from which date the new pay scales were introduced, or this difference may be due to the amount of annual increment in the new pay scale. Now, whether there is a violation of the right to equality will depend on the facts of the case. From the facts mentioned by you, it is difficult to say.     

---

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]

Since your question relates to deciding the custody of a minor child between two parents, the answer is that such question should be decided by the court and not by the police.

A private person can seek sanction for prosecution of police officers by writing to the State Government (write to the Home Secretary) giving all detailed grounds.

If the high court has rejected your petition and you feel that you have sufficient evidence to support your stand, you can definitely approach the Supreme Court for pressing the criminal charges. However, for getting the custody of the child, you may approach the family court first.
     

---

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 police officer disobeying the direction of law is punishable under Section 166 of IPC, but this is a non-cognizable offence. Therefore, technically speaking, a police officer refusing to register an FIR on the basis of a report given for an cognizable offence may be liable for offence under Section 166 IPC.

To invoke Lalita Kumari case, you should first ensure that the complaint given by you clearly shows prima facie (on the basis of facts mentioned in it) commission of a non-cognizable offence. If a police officer refuses to register FIR in violation of the guidelines issued by the Supreme Court in Lalita Kumari case, you should first approach the Superintendent of Police (SP) of the district to direct registration of FIR (by specifically citing the mandate of Lalita Kumari case). If the SP also does not give such direction to the SHO, you may then approach the Magistrate court for the same relief, specifically mentioning the requirements of Lalita Kumari case. However, if you still don’t get justice and FIR is not registered, you may perhaps file a Contempt Petition in the Supreme Court. In such circumstances, there is a likelihood that either the SC will take action on your contempt petition or will at least give you liberty to approach high court for appropriate proceedings or will give some appropriate direction to the concerned authorities.      

---

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]

Under the Constitution of India, “police” and “public order” (which also includes law and order) are state subjects. Under the Criminal Procedure Code (Cr.P.C.), registration of FIR and conducting investigation into criminal cases is mainly the responsibility of the state police. Under Cr.P.C., “police station” is to be established by the State Government. Therefore, the prime responsibility of registering FIR and conducting investigation is with the state police and not the CBI.

Central Bureau of Investigation (CBI) is the investigating agency of the Central Government. CBI has been set up under the Delhi Special Police Establishment Act, 1946. The main jurisdiction of the CBI is to conduct investigation of criminal cases within the jurisdiction of the union territories (UTs) and that too only for those offences which are notified by the Central Government. However, under the provisions of the said Act, the Central Government has the power to extend the jurisdiction of the CBI to those areas which fall within a state for the purposes of conducting an investigation in those areas, but it can be done only with the consent of the State Government. Most of the states have given their general consent for the CBI to conduct investigation of certain types of offences (such as corruption) when committed within the state by employees of the Central Government or of the Central Public Sector Undertakings (such as PSU banks). But, that does not mean that the power of the state police to conduct investigation in these types of cases has been taken away. What it amounts to say is that the CBI has the concurrent power to conduct investigation of certain types of cases within a state (such as corruption in PSU banks), but the state police continues to have its original jurisdiction to register FIR and conduct investigation in such cases.

Therefore, it is possible for the state police to register FIR and conduct investigation in criminal cases (such as misappropriation or corruption) in PSU banks, though the CBI also may have this power if the concerned state has given its general consent for such cases or special consent in a particular 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.

[Dr. Ashok Dhamija]

Since the High Court has dismissed your bail application on the same being withdrawn by your advocate, it was not dismissed on merits. So, if you approach the Supreme Court by filing SLP against the High Court order, the question that may be asked is why did you withdraw the bail application from the High Court. Withdrawal of application indicates that you were not interested on the same being decided on merits by the High Court; then how do you expect the Supreme Court to hear the same matter on merits? It would have been advisable if the High Court had dismissed the bail application on merits (instead of the same being withdrawn by you) if you wanted to challenge it in the Supreme Court. Now, the best course open to you would be to wait for the examination of the two material witnesses to be over and thereafter apply for bail before the Sessions Court. In case you feel that it is going to take a long period, you may try your luck again in the High Court by giving this reason of delay (you are generally required to show change of circumstances after rejection of the last bail application) and see if it succeeds; and if the High Court does not agree then you should get the bail application dismissed on merits so that it could then be challenged before the Supreme Court, if needed.     

---

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 your question, you have yourself mentioned the reasons that need to be given as explanation. If the legislation applicable asks you to do certain things as per the orders of the Chairman of the PRI and you have acted accordingly, then this is what you’ll have to explain.     

---

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]

From the facts mentioned by you, it appears that there are separate orders and communications for rejecting your claims for the two things. So, generally speaking, there should be two causes of action for these things, which means generally speaking, two separate matters are filed. For example, Rule 10 of the Central Administrative Tribunal (Procedure) Rules, 1987, provides as under:

“10. Plural remedies. – An application shall be based upon a single cause of action and may seek one or more reliefs provided that they are consequential to one another.”

There may be a similar rule for your state tribunal also, I hope.

May be due to such rule, sometimes, I have seen people filing one case in similar situations as both relate to retirement benefits (and, also, because proceedings before service tribunals are not as strict as before a regular civil court); however, in that case the tribunal may perhaps ask you to segregate the two matters and file two matters. In service tribunals, the court fee is very small (in CAT, it is Rs. 50) unlike the regular civil courts, therefore, filing separate cases should not generally be an issue. So, it may be preferable if you file two separate matters (and get them tagged so that they appear on the same day), but if you want to take a chance and file a single case then you can subsequently file two cases if the tribunal directs you to do so.     

---

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.

[Author]

Posts