AN USEFUL LEGAL TIP FOR ALL:

BE CAREFUL- [BE TRUTHFUL] !YOUR ORAL EVIDENCE  COUNTS TILL THE END!

ORAL EVIDENCE YOU ADDUCE IN A WITNESS BOX AND THE DOCUMENTS YOU PRODUCE IN A COURT OF LAW IS VERY VERY IMPORTANT-  IT PLAYS A VITAL ROLE IN DECIDING YOUR CASE THROUGH OUT.  EVEN IF YOU GO ON AN APPEAL FURTHER, YOUR ORAL EVIDENCE ADDUCED IN THE LOWER COURT HOLDS GOOD TILL THE END.

Dear Readers,

In my opinion many of the cases fail because of bad oral evidence lead by the party and for non production of proper documentary evidence.  So I urge through this medium that parties should be thoroughly sensitized before they enter the witness box in a Court of Law.  Many a time I have observed in the Courts,  people whether they are literate/illiterate, urbanite or a rural folk they adduce evidence so casually without realizing the consequence or the impact that word will have on their case.  They behave so causally!  Only few people will have a focused mind set and such people narrate the facts properly.  We see another set of people who are otherwise worldly wise and in the Lawyers chambers they act very smart and they understand the impact of the points to be adduced but when they stand before a judge in the witness box they instead of revealing the exact truth and fact , I don’t know out of servile attitude or because lack of knowledge of court room and the impact of their behavior and conduct that will have on their case – when a question is put by an advocate or by the court, instead of revealing the truth they say something else.  Such people I feel instead of losing the case, better to give a Power of Attorney to a relative or friend who will have balance of mind and thought and who is capable of adducing proper evidence to support the case properly.

Legal Dictionary- courtesy:Dictionary.com

ev·i·dence
Pronunciation: ’e-v&-d&ns, -”dens
Function: noun
Etymology: Medieval Latin evidentia, from Latin, that which is obvious, from evident- evidens clear, obvious, from e- out of, from + videns, present participle of videre to see
: something that furnishes or tends to furnish proof; especially :something (as testimony, writings, or objects) presented at a judicial or administrative proceeding for the purpose of establishing the truth or falsity of an alleged matter of fact —see alsoADMISSIBLE, BEST EVIDENCE RULE, EXCLUSIONARY RULE, EXHIBIT,FOUNDATION, OBJECTION,, PREPONDERANCE OF THE EVIDENCE,RELEVANT, SCINTILLA, STATE’S EVIDENCE, SUPPRESS, TESTIMONY,WITNESS Federal Rules of Evidence in the IMPORTANT LAWSsection —compare ALLEGATION, ARGUMENT, PROOF

best evidence
: evidence that is the most reliable and most direct in relationship to what it is offered to prove —see also BEST EVIDENCE RULE

char·ac·ter evidence
: evidence of a particular human trait (as honesty or peacefulness) of a party or witness —see also character witness at WITNESS
NOTE: Under the Federal Rules of Evidence, character evidence generally may not be used to prove that a person acted in accordance with that character. It is admissible for that purpose, however, if a criminal defendant offers it about himself or herself or about the victim, or if the prosecution offers evidence to rebut the defendant’s evidence in either of those circumstances. The prosecution may also rebut a claim of self-defense by presenting evidence of the peaceful character of the victim. Additionally, the character of a witness with regard to truthfulness may be attacked or supported by opinion or by evidence of reputation.

circumstantial evidence
: evidence that tends to prove a factual matter by proving other events or circumstances from which the occurrence of the matter at issue can be reasonably inferred —compare DIRECT EVIDENCE in this entry

clear and convincing evidence
: evidence showing a high probability of truth of the factual matter at issue —compare PREPONDERANCE OF THE EVIDENCE,REASONABLE DOUBT

com·mu·ni·ca·tive evidence
/k&-’myü-n&-k&-tiv-, -”kA-tiv-/
: TESTIMONIAL EVIDENCE in this entry

competent evidence
: evidence that is admissible, relevant, and material to the factual matter at issue

corroborating evidence
: evidence that is independent of and different from but that supplements and strengthens evidence already presented as proof of a factual matter called also corroborative evidence —compareCUMULATIVE EVIDENCE in this entry

cumulative evidence
: evidence that is of the same kind as evidence already offered as proof of the same factual matter —compare CORROBORATING EVIDENCE in this entry

de·mon·stra·tive evidence
: evidence in the form of objects (as maps, diagrams, or models) that has in itself no probative value but is used to illustrate and clarify the factual matter at issue; broadly : PHYSICAL EVIDENCE in this entry called also illustrative evidence

derivative evidence
: evidence obtained as a result of the unlawful gathering of primary evidence called also indirect evidence secondary evidence —see also FRUIT OF THE POISONOUS TREE

direct evidence
: evidence that if believed immediately establishes the factual matter to be proved by it without the need for inferences;especially : evidence of a factual matter offered by a witness whose knowledge of the matter was obtained through the use of his or her senses (as sight or hearing) —compare CIRCUMSTANTIAL EVIDENCE in this entry

evidence in chief
: evidence that is to be used by a party in making its case in chief

exculpatory evidence
: evidence that tends to clear a defendant from fault or guilt —see also BRADY MATERIAL
NOTE: The prosecution in a criminal case is obligated to disclose to the defense any exculpatory evidence in its possession.

extrinsic evidence
1 : evidence regarding an agreement that is not included in the written version of the agreement
NOTE: A court may use extrinsic evidence to make sense of an ambiguity in a writing subject to some limitations.
2 : evidence about a witness’s character obtained from the testimony of other witnesses rather than from cross-examination of the witness himself or herself
NOTE: A witness may not be impeached by the use of extrinsic evidence.

hearsay evidence
: a statement made out of court and not under oath and offered in evidence as proof that what is stated is true : HEARSAY

il·lus·tra·tive evidence
: DEMONSTRATIVE EVIDENCE in this entry

impeachment evidence
: evidence that may be used to impeach a witness because it tends to harm the witness’s credibility

indirect evidence
: DERIVATIVE EVIDENCE in this entry

intrinsic evidence
: evidence that exists within a writing intrinsic evidence of the testator’s intent —Stoner v. Custer, 251 North Eastern Reporter, Second Series 668 (1968)> —compare EXTRINSIC EVIDENCE in this entry

material evidence
: evidence that is likely to affect the determination of a matter or issue; specifically : evidence that warrants reopening of a claim or reversal of a conviction because but for the circumstance that the evidence was unavailable the outcome of the first proceeding would have been different

no evidence
: evidence presented that is insufficient to prove a matter of esp. vital fact : a point of error that insufficient evidence has been presented to support a finding

parol evidence
: evidence of matters spoken (as an oral agreement) that are related to but not included in a writing —see also PAROL EVIDENCE RULE

physical evidence
: tangible evidence (as a weapon, document, or visible injury) that is in some way related to the incident that gave rise to the case called also real evidence —compare DEMONSTRATIVE EVIDENCEand, TESTIMONIAL EVIDENCE in this entry

presumptive evidence
: PRIMA FACIE EVIDENCE in this entry

prima facie evidence
: evidence that is sufficient to prove a factual matter at issue and justify a favorable judgment on that issue unless rebutted

pri·ma·ry evidence
1 : BEST EVIDENCE in this entry
2 : evidence obtained as a direct result of an unlawful search

re·al vidence
: PHYSICAL EVIDENCE in this entry

rebuttal evidence
: evidence that tends to refute or discredit an opponent’s evidence

relevant evidence
: evidence that tends to prove or disprove any issue of fact that is of consequence to the case

secondary evidence
: DERIVATIVE EVIDENCE in this entry

sub·stan·tial evidence
: evidence greater than a scintilla of evidence that a reasonable person would find sufficient to support a conclusion

substantive evidence
: evidence offered to prove a factual issue rather than merely for impeachment

testimonial evidence
: evidence given in writing or speech or in another way that expresses the person’s thoughts —compare PHYSICAL EVIDENCE in this entry
NOTE: Only testimonial evidence is protected by the Fifth Amendment’s privilege against self-incrimination.—in evidence : as evidence in evidence>

Main Entry: evidence
Function: transitive verb
Inflected Forms: -denced; -denc·ing
: to provide evidence of

Merriam-Webster’s Dictionary of Law, © 1996 Merriam-Webster, Inc.
Cite This Source

Idioms & Phrases

evidence

see in evidence; much in evidence.

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TAGS: IMPOTENCY / ANNULMENT OF MARRIAGE / HINDU MARRIAGE ACT S.12(1)(a) / TRIPURA FAMILY COURTS RULES

Dear Readers

Here is a case where the High Court of Guwahati held that:

Oral evidence of wife which alone can be basis for a decree for annulment of marriage [A marriage annulment is a legal procedure that dissolves a couple's marital status by establishing that a valid marriage never existed. In effect, it nullifies the marriage.] under Hindu Marriage Act, if the same inspires confidence and there is no good reason to discard the same. And an adverse inference can be drawn from conduct of husband in avoiding medical tests.

[ excerpts from:2008(1)AKAR(NOC) 11(GAU.)=AIR 2007 GAUHATI 178-AgartalaBench]

Petition for ‘annulment of marriage’: Ground is non-consummation of marriage owing to impotency [chronic inability to attain or sustain an erection for the performance of sexual act. sterility, esp. in the male.] of husband hence medical test of husband directed. Only allegation of newly wed bride is that marriage could not be consummated owing to impotence of husband. The husband raised a plea of financial predicament to undertake journey to appear before medical expert.

The Hon’ble Court observed that The expenses incurred in obtaining opinion of expert as provided in Rule 18(3) of Tripura Family Courts Rules(2002) do not include the expenses of the parties for undertaking journey to appear before the expert. It is the expenses which may be incurred in examining the expert for obtaining opinion. In other words, if the expert is required to attend the Court, all the expenses would be borne by the Court from the fund allocated by the State Government. There is, however, a rider below Rule 18(3), which provides that if the expert is a public servant, the Family Court shall issue a Court certificate as issued by other Courts to official witnesses. The experts already in the Government service shall not, however, be entitled to get any remuneration for their opinion and they shall be duty bound to help the Family Court. Thus a plain reading of the said provision would give an impression that the appellant husband who was directed to appear before the expert in the Hospital at Kolkata was not entitled to the expenses for undertaking journey to Kolkata. His prayer for fund from the Family Court is liable to be rejected. The husband being a Class one gazetted officer is earning a handsome salary. Such a plea of financial predicament raised by him is not acceptable. This conduct of the husband indicates that he was not interested to clear the charge coming from his own wife that he was sexual impotent. And a newly married wife cannot be expected to tell her mother that her husband is impotent. No collusion between husband and wife and nothing to show that the husband and wife were on bad terms. Sole testimony of wife cannot be discarded for want of corroboration. Quality not quantity would determine sufficiency of evidence as provided by S.134 of Evidence Act. Proposal of wife for separate living not sufficient enough to forbid husband from cohabitation if proposal was not dragged to serious acrimony [bitterness, animosity, spitefulness, asperity, spite.] There was nothing to show that the husband and wife were on bad terms. Expert opinion about impotency is important, though it is not always mandatory if other sufficient evidence is on record. Decree of nullity of marriage can be passed. And compensation or permanent alimony can be given in case of nullity of marriage. The Court may either direct a gross sum or monthly or periodical sum as permanent alimony and maintenance.

[hope the above article helps the common man to understand the sensitivity of the situation by looking at the observation of court about the behavior and conduct of the parties and the importance of adducing quality evidence.]

http://www.ehow.com/about_5347597_causes-impotence-young-men.html

image source*

TAGS: ILLEGITIMATE CHILD, Sec.16 OF HINDU MARRIAGE ACT, PROPERTY RIGHT, INTESTATE, BASTARD

WHO IS AN ILLEGITIMATE CHILD UNDER HINDU LAW? WHAT ARE HIS/HER PROPERTY RIGHTS?CAN AN ILLEGITIMATE CHILD FILE A SUIT FOR PARTITION? WHAT IS DYING INTESTATE?

[This is an excerpts from the citation 2008(6)AIR Kar R 267- a judgment delivered by the Hon’ble Justice N.Kumar of High Court of Karnataka ]

Marriage according to Hindu Law is holy union, it is not a contract but a ‘samskara’ or ‘sacrament,’ though polygamy was not permitted, a second marriage was allowed in a restricted sense and that too under stringent circumstances. And Monogamy was the rule and ethos of the Hindu society which rejected the second marriage altogether. The influence of religion in all marriage did not allow polygamy to become a part of Hindu culture. Therefore noting the various enactments which dealt with the marriage through out the length and breadth of this Country, it became necessary for the parliament to amend and codify the law relating to marriage among Hindus and that is how the enactment of Hindu Marriage Act 1955 was passed.

Though Prior to the Hindu Marriage Act 1955 there was no prohibition for a Hindu to have more than one wife, all the children born to the wives were treated as legitimate children and members of joint family or co-parcenery. Only a child born to concubine was treated as an illegitimate child. Each one of these legitimate children had a right to maintain a suit against their father for partition and separate possession of their legitimate share either in the joint family property or in the co-parcenery property.

After the passing of the Hindu Marriage Act 1955 a prohibition was imposed on the Hindus to enter into second marriage during the life time of the spouse. The personal law of Hindus to that extent ceases to have effect. The Act had over riding effect and the Personal Law of Hindus in so far as the marriage are concerned stood amended in terms of the Act. Therefore second marriage of a Hindu during the life time of the spouse is prohibited and such a marriage was declared as void. A son born to the said void marriage was deprived of a right under the Traditional Hindu Law because the provisions of the Act, excluded the application of personal law in this regard and under the Hindu Succession Act, 1956, for short hereinafter referred to as “Succession Act”, because he was not a legitimate son. The Parliament after noticing this injustice done to an illegitimate child for a folly of its parents thought of introducing Section 16 of the Act. It reads as under:

“Legitimacy of children of void and voidable marriages-(1) Notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws(Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a Petition under this Act.

Where a decree of nullity is granted in respect of a voidable marriage under Section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

Nothing contained in sub-section(1) of sub-section(2) shall be construed as conferring upon any child of marriage which is null and void or which is annulled by a decree of nullity under Section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of the parents”.

By Section 16, what the parliament intended to do was to remove the stigma of basterliness attached to a child born of such void marriage and the child has been relegated the status of a legitimate child. Therefore, after the amendment Act, 1976, which introduced Section 16 into the Act, the illegitimate son has been given equal status as that of a legitimate son. That is precisely what is sought to be done under Section 16(1) and (2) of the Act, However, the parliament was conscious of the consequences of such status being given to an illegitimate child as it would affect other persons who are in no way responsible for the birth of an illegitimate child. Therefore, they made it clear by introducing Section 16(3) to the effect that such an illegitimate son who is admitted to be an illegitimate son by virtue of Section 15(1) and (2), will have a right only in the properties of the parents and none else. Thus, the conferring of the status did not affect the rights of the persons other than the parents in the property.

CAN AN ILLEGITIMATE SON FILE A PARTITION SUIT? OR CLAIM SHARE IN THE SEPARATE/ SELF ACQUIRED PROPERTY OF THE PARENT DURING THEIR LIFE TIME?

Section 307 of Hindu Law by Mulla says “every adult coparcener is entitled to demand and sue for partition of the coparcenary property at any time”.

But the said right is confined to only coparcenary property and joint family property. The said right is not extended even in Hindu law to the separate or self/acquired property of the father. After the passing of the Succession Act, the rights of Hindus in respect of the property of the father is governed by the said enactment. The said enactment was passed to amend and codify the law relating, intestate succession among Hindus.

The word “Intestate” has been defined under section 3(g) meaning, a person is deemed to die intestate in respect of property of which he or she has not made a testamentary disposition capable of taking effect. In other words, if a person has made a testamentary disposition of his property and if such testamentary disposition is upheld, then his natural heirs have no right to succeed or to inherit the said property.(disposition by way of Will)

Section 6 of the Act deals with devolution of interest in coparcenary property. It provides that when a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act. Therefore, it is clear that in respect of a coparcenary property to which the Succession Act, 1956 is not applicable, such devolution of interest is governed by the Personal Law of Hindus. Coparcenary property devolves by survivorship and not by succession.

It is Section 8 which deals with the General Rules of succession in the case of males. It provides that property of a male Hindu dying intestate shall devolve according to the provisions of the Succession Act. Therefore, under the Succession Act, a legal heir of a person is entitled to property only on the death of the male dying intestate. In other words, he has no right to claim a share in the property during the lifetime of the male as defined in Section 8 of the Succession Act. Thus the property of a Hindu dying intestate devolves by succession only.

The principle underlying the concept is that the property to be divided is “Exvi termini” the property which has been previously held as Joint Property in coparcenary. The son’s right at birth, under the Mitakshara, is so connected with the right to share in, and to obtain partition of the estate, that it does not exist independently of the latter right. Thus under the Hindu law, the son acquires right to coparcenary property by birth. In otherwords he acquires title to the coparcenary property by birth. It is a vested right. It is that right in the property i.e the right to joint enjoyment of the property, which is transformed into an enjoyment in severally through the process of partition. It is that antecedent title which the members of a coparcenary possess by birth jointly with other members of the coparcenary which is specifically defined at the partition.

Existence of an antecedent title is a prerequisite for enforcement of a right to partition. Separate or self-acquired property of a member of the coparcenary or joint family cannot be the subject matter of partition amongst the member of a coparcenary or Joint family. No child whether legitimate or illegitimate, acquires any right by birth in the separate property or the self-acquired property of its parents. Thus they acquire no title to such property by birth. They do not possess any antecedent title to such property.

The right to such property accrues to them only on their parents dying intestate. It is the death of the parents and not the birth of the child, which confers right on such property. In respect of such property, both legitimate and illegitimate child, succeed in accordance with the provisions of Sections 8 and 15 of the Succession Act, if the parents die intestate. It is only after the event, i.e. death, the suit for partition could be filed. Therefore, it follows that no suit for partition could be filed against the parents during their life time, in respect of separate self acquired property of parents. The illegitimate son is not a coparcener. He has no right in coparcenary property. However, he has a right in the share of the father in coparcenary property. That right he can exercise only on his father dying intestate. He has no right by birth in the separate or self acquired property of his parents. His right accrues only after his parents die intestate. Therefore, a son born of void or voidable marriage(illegitimate son) can never maintain a suit against his/her parent in respect of the property of his or her parent during their life time.

Useful Links on the topic:

http://www.xmission.com/~plporter/lds/illegit.htm

http://www.brocku.ca/MeadProject/Thomas/Supplementary/Columbia_1916.html

https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=71+Ky.+

http://en.allexperts.com/q/German-Law-1364/illegitimate-child-inheritance-rights.htm

*Image Source

MUSLIM MEN BE AWARE OF THE  RULES!

RELIGION BASED PERSONAL LAWS CANNOT BE INVOKED TO PREVENT GOVERNMENT RULES!

[ News you can use]

After 23 years in Court, a Muslim Constable’s plea that he did not fail afoul of a bigamy charge as this was permissible according to his religion, has been decisively quashed by the Supreme Court that dismissed his special leave petition against a high court ruling.

The Supreme Court decision not to entertain the special leave petition clearly establishes that those in government jobs cannot get around service rules that stipulate dismissal from service for bigamous employees.The Supreme Court said that religion based personal laws cannot be invoked to prevent government rules from being enforced.

The former Rajasthan Police Constable Liyakat Ali, challenged the termination of his services under the Rajasthan Civil Services (conduct)Rules 1971, banning second marriage without divorcing the first wife.

The Supreme Court last week upheld the High Court ruling against Ali on the ground that he had contracted a second marriage without divorcing his first wife. Ali’s contention was that Muslim personal law did not prohibit a second marriage even as the relation with first wife remained legally binding.

The law did not mandate taking permission of the government and Ali married Maksuda Khatun without divorcing his first wife Farida Khatun.

Though the dismissed Constable had taken a plea that he had divorced his first wife before contracting the marriage with Maksuda, the inquiry reportedly revealed that the first marriage had not been annulled when he married for the second time.

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WHAT IS ENCUMBRANCE ?

BEFORE PURCHASING PROPERTY OR ENTERING INTO LEASE AGREEMENT OR RENT AGREEMENT YOU SHOULD ENSURE THAT THERE ARE NO ENCUMBRANCES ON THE PROPERTY IN QUESTION!

Encumbrance means a liability which burdens the property, for example, lease, mortgage, easement, restriction, covenant, rent charge etc.  Encumbrances which can be carved out of ownership, generally are securities, leases, servitude‘s, trusts etc.  It is generally a burden or charge upon the property.

In the instant case: AIR 2007 Kerala 114 the Hon’ble High Court of Kerala [k.s.Radhakrishnan acting c.j. and justice Antony dominic] held that:

By virtue of Securitization Act there is no necessity of the Bank resorting to provisions of Rent Control Act for evicting the tenant.

The word encumbrance enumerated in Rule 9(9) of Securitisation Rules cannot be given a restricted meaning. As lease is an encumbrance over the property, In any view the borrower is bound by the terms and conditions stipulated in declaration executed by him in favor of Bank undertaken that he would not lease out the property.  Contrary to the said stipulation the tenant was put in possession and therefore by virtue of Securitization Act there is no necessity of the Bank resorting to provisions of Rent Control Act for evicting the tenant.  Securitisation Act has got overriding effect over the Kerala Buildings(Lease and Rent Control) Act and parties are governed by the Securitisation Act and not by the Rent Control Act.  The authorized officer is to deliver the property to the purchaser free from encumbrances in terms of Rule 9(9). Occupants are not to be physically dispossessed at the time of issuing notice under section 13.  The physical possession can be taken by the Bank by following the procedure laid down in Section 14 or after the sale is confirmed.

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Likewise the Lease,  Lease is therefore an encumbrance over the property.  In any view the borrower is bound by the terms and conditions stipulated in declaration executed by him in favor of Bank undertaken that he would not lease out the property.

BBMP OFFICIALS WORKED OVERTIME/OVERNIGHT!

[News you can use]

Bruhat Bangalore Mahanagara Palike officials worked overtime on Tuesday and Wednesday 12th & 13th January to give a big push to development. Keeping in mind that the election code of conduct comes into effect on January 15,[in view of the BBMP election scheduled to be held on 22nd ] officials cleared files on Wednesday, the last working day before the deadline.

The members of Civic Front stormed into the BBMP office and protested against e-tendering. The coalition of political parties like CPM, CPI and AIADMK accused the BBMP of clearing tenders worth over Rs.3,000 crore overnight on Tuesday in a very undemocratic process. BBMP councilors stayed on at office till the wee hours of Wednesday to clear all these tenders for developmental work, they alleged ‘What was the hurry to finalize the tenders at midnight’?

PEOPLE BEWARE! YOU ARE EXPLIOTED AFTER TAKING YOUR VOTE! ITS YOUR DUTY /OBLIGATION TO ENSURE TRANSPERANCY IN PUBLIC PROCUREMENT OF GOODS AND SERVICES BY THE AUTHORITIES!

Professionals/Businessmen and People be Aware of the Law relating to Public Procurement of Goods and Services – to understand more go through the narration of the following case law – judgement delivered by Hon’ble Justice N.Kumar of Karnataka High Court.

[Let me brief you about a practical case discussed in 2009(4) AIR Kar R 98]

In the above case one M/s Nsoft(India) Services Pvt. Ltd., has challenged two contracts awarded to one M/s Zygax and sought for quashing of the same. The first contract is in respect of spot billing and collection in BESCOM Sub-Divisions,Second contract refers to maintenance of billing software.

The BESCOM Ltd., floated a tender inviting bids for Total Revenue Management of Billing and Collection of BESCOM Sub-Divisions in respect of 4 lots. The common qualifying requirements were stipulated for all the Lots. The Nsoft India Services was one such bidder and so also M/s Zygax. The Nsoft India’s bid was not accepted whereas the zygax bid was accepted. The grievance of the Nsoft India is that the zygax did not possess the requisite qualification, namely three years experience of providing similar services in any electricity supply utility in India. The zygax contended that they do possess the three years qualification. The BESCOM has not categorically stated in the statement of objections that the zygax do possess the requisite qualification of three years experience. And the Nsoft preferred a statutory appeal against the order passed by the tender accepting authority under Section 16 of the Karnataka Transperancy in Public Procurements Act 1999. The appellate authority after considering the rival contentions held according to BESCOM the requirement as stated in the bid document, is only work of similar nature. Since there is no specific definition in the tender document on what constitutes work of similar nature, the decision of the tender inviting authority in determinig this was accepted and accordingly it dismissed the appeal of Nsoft India. Aggreived by the said orders he is before the Hon’ble High Court.

Kindly be Aware of the Law:

**

[Karnataka Transparency in Public Procurements Act (29 of 2000)]

The above Act was enacted by the Karnataka State Legislature to provide for ensuring transparency in public procurement of goods and services by streamlining the procedure in inviting, processing and acceptance of tenders by Procurement Entities and for matters related thereto.

“Procurement Entity” has been defined under the said Act to mean any Government Department, a State Government undertaking, Local Authority or Board, Body or Corporation established by or under any law and owned or controlled by the Government and any other body or authority owned or controlle4d by the Government and as may be specified by it.

Chapter II of the above Act deals with regulation or procurement. Section 5 provides that, on and from the date of commencement of the Act no procurement entity shall procure goods or services except by inviting tenders for supply. Section 6 contemplates that no tender shall be invited, processed or accepted by a procurement entity after the commencement of the Act except in accordance with the procedure laid down in the Act or the Rules made thereunder.

Act provides for publication of tender bulletins, tender bulletin officers, tender inviting authority and tender accepting authority, tender scrutiny committee, opening of tenders, duties of tender inviting authority, how a tender is to be accepted, how a tender is to be rejected and a statutory appeal to a person aggrieved in the aforesaid tender process.

Therefore, after coming into force of the Act, inviting tenders for procuring the goods and services is the rule and the said procurement should be in accordance with the procedure prescribed under the Act. However, the Act makes two exceptions. Firstly, as contemplated under Section 3 the provisions of the Act are not made applicable to the projects funded by international financial agencies or projects covered under international agreements. The Second exception , with which are concerned is found in Section 4 which reads as under :

“S.4 Exception to applicability-The provisions of Chapter II shall not apply to Procurement of goods and services:-

(a) During the period of natural calamity or emergency declared by the Government.

(b) Where the goods or services are available from a single source or where a particular supplier or contractor has exclusive rights in respect of the goods or services or construction work and no reasonable alternatives or substitutes exist:

Provided that for the purpose of this clause there shall be a committee of three experts consisting of one technical representative of the procuring entity one technical respresentative of the Government organization dealing with similar procurement and one respresentative from a reputed Academic or Research Institution or Non-commercial Institution having expertise in such line to examine and declare that the goods or services are available from a single source.”

**

In the above case After much deliberations the Hon’ble High Court held – applying exceptions as per Section 4 of the Act to the facts of this case the BESCOM has committed first error in not appointing experts in the field as committee members, The committee constituted was not of expert committee committed an error in referring the matter to a professor, an expert in the field for which they had no power under the Act, It is the procurement entity which has to constitute a three member expert committee to consider the services rendered by M/s Zygax and then to find out whether he is the only person who has got exclusive control of the said service. That has not been done. After the matter was referred to professor Sadagopan obviously he was not aware of the provisions of this Act. He has not certified that the petitioner is the only source from which this service could be procured. The recommendation made by him is very general in nature. It does not satisfy the requirement contemplated under proviso to sub-section(b) of Section 4 of the Act. In the letter addressed by him to the BESCOM he has not declared that the goods or services are available from a single source or that M/s Zygax has exclusive rights in respect of the goods and services. The third error committed was without properly understanding the contents of the said letter, the BESCOM has proceeded on the assumption that Sri Sadagopan is of the view that M/s Zygax is the only single source from whom the said service could be procured and they have awarded the contract to the M/s Zygax on the basis of the said letter.

From the aforesaid facts, it is clear that there is total non-application of mind by the BESCOM in the constitution of the expert committee, in making reference to an expert and also in not understanding what the expert has stated by way of his opinion. Therefore, the BESCOM has committed a serious illegality in awarding the contract to M/s Zygax.

Having regard to the object with which the Act was passed by the Karnataka Legislature nearly nine years back, the tendency of the BESCOM an Instrumentality of the State, to continue to indulge in manipulations and distributing the public largesse is quite evident in this case. When the whole machinery of an instrumentality of the State is directed towards preferring a particular individual or a company in preference to other persons who are similarly placed and anxiety shown by the statutory authority in awarding contract, in utter violation of provisions of the Act clearly demonstrates that the authorities are acting in violation of the rule of law. In fact the way tender is worded also gives an impression that from the inception they have kept in mind the interest of M/s Zygax and not of the authority. When these facts are brought to the notice of this Court, this Court cannot be a silent spectator. It is not a mere issue of a writ to quash an illegal action. A duty is cast on the Court to see in future such illegalities do not occur. Therefore it is very much necessary for this Court to quash these contracts in particular the second contract which is granted in utter violation of the provisions of the Act. As M/s Nsoft India has succeeded in showing the illegality he is entitled to succeed and is entitled to get both the contracts quashed.

However, merely because the contract awarded to M/s Zygax is quashed at the instance of M/s Nsoft India, M/s Nsoft India is not entitled to the award of Contracts straightway. Before they could be said to be entitled to the contract, he should satisfy the tender accepting authority that he possess the requisite qualification. That is an exercise to be done by the tender accepting authority and not by this Court. Writ Petition Allowed.

*************

WHETHER VALID?

VALID / VOID / VOIDABLE  AGREEMENTS

The following questions/issues regarding a Society allotment/Sale is very beautifully discussed in a case law – decision delivered by Justice N.Kumar-High Court of Karnataka:

Whether the Sale Deed executed by the Society in favour of a non-member is void or voidable?

• Whether the sale deeds executed by the Society represented by its office bearers contrary to bye law 36 is valid or void?

• Whether the Sale Deed executed by the Society in favour of its member in respect of the sites for which the Society had already executed sale deed in favour of non-member is void or voidable?
• Whether the cancellation deeds executed unilaterally by the society is void or voidable? In order to answer these questions one should have a clear distinction between the legal terms such as valid, void and voidable: A valid agreement is one, which is enforceable by law as a contract, by the parties to the agreement. A void agreement is one, which does not exist in the eye of law, and therefore fails to receive any legal recognition or sanction.  In legal parlance it is a nullity or non-est.  It is not a contract at all.  It would be automatically null and void without more ado.  Its existence or continuation has no value, as you cannot continue a nullity. If a statute specifically provides that a contract contrary to the provisions of the statute would be void, it is no contract in the eye of law, it is void ab intio, and the said agreement is unenforceable in law.

In between these two extreme positions, lies the voidable agreement.  In law it exists and also recognized.  It is a contract.  It can also be enforced.  But because of some defect in its origin, at the option of the party to the agreement, it is liable to be cancelled or set aside.  In other words, a voidable agreement is one which is void or valid at the election of one of the parties.  However, it is valid, till, it is declared void by a competent Court of law, in a manner known to law.  Therefore, it is not a nullity or non est.  It is valid and good unless avoided.

Sale of Site belonging to Co-operative Society in favour of non-members is Not expressly prohibited by Bye laws of Society the object of selling sites to non-members is to raise money to pay loan to Corporation the Object behind sale neither illegal nor against interest of members of society Sale was for a valid consideration sale deed executed by society in favour of non-members cannot be said to be void Said agreement is not forbidden by law or is of such a nature that it would defeat provisions of any law -  not immoral or opposite to public policy.  It is enforceable.

[for more detailed information on above questions- kindly refer 2008(5) AIR  Kar R 120]

image source : http://www.falcommercial.com.au

An appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.[section 100 C.P.C.]

Any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing on final outcome, will not be a substantial question of law.

Even if there is a clear enunciation of law by Supreme Court or by the concerned High Court, but the lower Court had ignored or misinterpreted or misapplied the same, and correct application of the law as declared or enunciated by Supreme Court or the concerned High Court would have led to a different decision, the appeal would involve a substantial question of law as between the parties. Even where there is an enunciation of law by Supreme Court or the concerned High Court and the same has been followed by the lower Court, if the appellant is able to persuade the High Court that the enunciated legal position needs reconsideration, alteration, modification or clarification or that there is a need to resolve an apparent conflict between two view points, it can be said that a substantial question of law arises for consideration.[2008 AIR SCW 4355(A)]

]]> http://www.legalcrystal.com/blog/civil-law/what-is-substantial-question-of-law/feed/ 1 http://www.legalcrystal.com/blog/civil-law/know-your-rights-obligations-rent-act/?utm_source=rss&utm_medium=rss&utm_campaign=know-your-rights-obligations-rent-act http://www.legalcrystal.com/blog/civil-law/know-your-rights-obligations-rent-act/#comments Sat, 14 Nov 2009 04:01:47 +0000 Rekha Prasad http://blog.legalcrystal.com/?p=417

Dear Readers,

This is about Rent Act. Today under Rent Act I would like to give you few tips which you need to know as a Tenant or as a Landlord or to take special care as a prospective Landlord/Tenant:

First I would like to brief you about the history and purpose of the Act in few sentences which I narrate from the books I referred:

The Historical background of the Act is that during the Second World War there was acute problem to find accommodation for the officials transferred from one place to another and owners of the buildings exploited the situation to their advantage. In order to curb such tendencies legislation was brought in throughout the country. The Subject comes under the State List of the Constitution of India. The then Mysore State enacted the Mysore House Rent and Accommodation Control Act 1951 which was replaced by the Karnataka Rent Control Act 1961. It was brought into force for a period of ten years as temporary measure but has been extended from time to time till 31/12/2001. The Karnataka Rent Act 1961 is replaced by the Karnataka Rent Act 1999. It has been passed by the Karnataka State Legislature and published in Karnataka Gazette and it received the assent of the President of India on 22/11/2001. It has come into force from 31/12/2001. The Karnataka Rent Rules 2001 are framed under Section 66(1) of the Act which came into force from the date of their publication in the official Gazette. Thus the Act and the Rules came into force from 31/12/2001 in the State of Karnataka by repealing the 1961 Act.

In order to do justice to both the parties namely Landlords and Tenants. Section 27Sub-section (1)disables the Court from passing an order of eviction against a tenant. But sub-section (2) makes an exception to sub-section (1) in as much as it provides the grounds upon which a landlord can seek eviction of his tenant.

Section 27. Protection of tenants against eviction.- (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by the Court, District Judge or High Court in favor of the landlord against a tenant but as provided in sub-section(2).

• The Court may, on an application made to it in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only,

• That the tenant has neither paid nor tendered the whole of the arrears of the rent and other charges legally recoverable from him within two months from the date on which a notice of demand forpayment has been served on him by the landlord in the manner provided in Section 106 of the Transfer of Property Act, 1882: – Pay rent regularly

• Provided that a tenant shall not be entitled to the benefit of service of notice by the landlord under this clause where, having obtained such benefit once in respect of any premises, he again makes a default in the payment of rent and other charges payable in respect of those premises:

• Provided further that where in a proceeding for eviction of a tenant on the ground specified in this clause, the tenant is to be evicted, the Court shall make an order directing the tenant to vacate the premises unless he pays to the landlord or deposits into Court within one month of the date of order, an amount calculated at the rate at which it was last paid, for the period for which the arrears of rent and other charges were legally recoverable from him, including the period subsequent thereto up to the end of the month previous to that in which payment or deposit is made;

• That the tenant has: after the commencement of this Act without the consent in writing of the landlord, sub-let,assigned or otherwise parted with the possession of the whole or any part of the premises; that the tenant has used the premises for a purpose other than that for which they were let, without obtaining the consent in writing of the landlord:- No sub-letting

• That the premises were let and: (i) the tenant or any member of his family has not been in occupation thereof for a period of six months; (ii) the tenant has not been in occupation thereof, without a reasonable cause for a period of two years, immediately before the date of the filing of the application for the recovery of possessionthereof: – Keep the Landlord informed

• Provided that the landlord may, on request in writing of the tenant, permit occupancy of the premises by a person other than the tenant or his family not exceeding the period of tenancy.

Explanation: For the purposes of this clause and clause (r), “family” means parents, spouse, dependent sons and daughters or such other relatives as are ordinarily living with the tenant and are dependent upon him;

That the premises or any part thereof have become unsafe or unfit for human habitation and are required by the landlord for carrying out repairs or re-construction which cannot be carried out without the premises being vacated:Provided that no order for the recovery of possession under this clause, or clauses above mentioned shall be made unless the Court is satisfied that the plans and estimates of such repairs or reconstruction, as the case may be, have been properly prepared and that the landlord has the necessary means to carry out the said repairs or reconstruction:

Protection of Landlord’s interest

• Provided further that if the landlord proposes to change the use of the premises after re-construction, then, he shall so specify in his application for recovery of possession and, after such reconstruction, the landlord shall, if it is otherwise permissible under law, utilize the built up area equal to the previous area for the original use to the extent required and rest for any other use acceptable under law.

• That the premises or any part thereof are required by the landlord for the purpose of immediate demolition ordered by the Government or any local authority or the premises are required by the landlord to carry out any building work at the instance of the Government or a local authority in pursuance of any improvement scheme or development scheme and that such building work cannot be carried out without the premises being vacated;

• That the premises or any part thereof are required by the landlord for carrying out any repairs which cannot be carried out without the premises being vacated;

• That the premises are required by the landlord for the purpose of building or re-building or make thereto any substantial addition or alteration including construction on the terrace of the premises or on the appurtenant land and that such building or rebuilding or addition or alteration cannot be carried out without the premises being vacated;

• That the premises consist of not more than two floors and the same are required by the landlord for the purpose of immediate demolition with a view to rebuild the same:

• Provided that where the building of which such premises possession in respect of which has been recovered as above form a part has been re-built to an extent (If less than seventy-five per cent, a tenant so dispossessed shall have a right to re¬entry at the new terms of tenancy in the premises in the re-built building equivalent in area to the original premises for which he was a tenant;

• That the tenant, his spouse or a dependent son or daughter ordinarily living with him has whether before or after the commencement of this Act, built or acquired vacant possession of or been allotted a residence or as the case may be a commercial premises:

• Provided that the Court may in appropriate cases allow the tenant to vacate the premises within such period as he may permit but not exceeding one year from the date of passing of the order of eviction;

• That the premises were let to the tenant for use as a residence by reason of his being in the service or employment of the landlord, and that the tenant has ceased, whether before or after the commencement of this Act, to be in such service or employment:

• Provided that no order for the recovery of possession of any premises shall be made on this ground if the Court is of the opinion that there is any bonafide – dispute as to whether the tenant has ceased to be in the service or employment of the landlord;

• That the tenant has, whether before or after the commencement of this Act, caused or permitted to be caused substantial damage to, or such alteration of, the premises as has the effect of changing its identity or diminishing its value.

Explanation: For the purposes of this clause, “substantial damage” shall mean such damage as shall involve an expenditure equivalent to six months rent or more of the premises or such less expenditure as the Court is satisfied keeping in view, the special nature of damage, justifies the same to be treated as substantial damage for carrying out the repairs for such damage:

Provided that no order for the recovery of possession of any premises shall be made on the ground specified in this clause, if the tenant, within such time as may be specified in this behalf by the Court, carries out repairs to the damage caused to the satisfaction of the Court or pays to the landlord such amount by way of compensation as the Court may direct;

• The tenant or any person residing or carrying on business with the tenant has been convicted of causing nuisance or annoyance to a person living in the neighborhood of the premises or has been convicted of using or allowing the use of the premises for an immoral or illegal purposes:

• No application for recovery of possession of any premises shall lie on this ground unless the landlord has given to the tenant a notice by registered post served personally on him requiring him to stop the misuse of the premises and the tenant has refused or failed to comply with such requirement within one month of the date of service of the notice and no order, for eviction against the tenant shall be made in such a case, unless the Court is satisfied that the misuse of the premises is of such a nature that it is a public nuisance or that it causes damage to the interest of the landlord;

• That the tenant has, notwithstanding previous notice, used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government or the local Authority while giving him a lease of the land on which the premises are situate:

• Provided that no order for the recovery of possession of any premises shall be made on this ground if the tenant, within such time as may be specified in this behalf by the Court, complies with the condition imposed on the landlord by any of the authorities referred to in this clause or pays to the authority imposing such conditions the amount by way of compensation as the Court may direct;

• That the tenant in his reply having denied the ownership of landlord, has failed to prove it or that such denial was not made in a bonafide manner;

• That the person in occupation of the premises has failed to prove that he is a bonafide tenant:

• That the tenant after having agreed with or having informed the landlord in writing the date to vacate the premises does not do so on or after the date so agreed or informed;

• That, the premises let are required, whether in the same form or after re-construction or re-building, by the landlord for occupation for himself or for any member of his family if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation:

• Provided that where the landlord has acquired the premises by transfer, no application for the recovery of possession of such premises shall lie under this clause unless a period of one year has elapsed from the date of the acquisition:

Explanation-I: For the purpose of this clause and Sections 28 to 31: (i) where the landlord in his application supported by an affidavit submits that the premises are required by him for occupation for himself or for any member of his family dependent on him, the Court shall presume that the premises are so required; (ii) premises let for a particular use may be required by the landlord for a different use if such use is permissible under law

. Explanation-II: For the purposes of this clause and Sections 28 to 31 an occupation by the landlord of any part of building of which any premises let out by him forms a part shall not dis entitle him to recover the possession of such premises.

Conditions for filing eviction petition:

Before filing an application/ petition for eviction under section 27(2) the following aspects are to be looked into;-

• Whether the premises sought to be vacated is residential or commercial;

• The area in which the premises is situated- whether in Part A or Part B of First Schedule to the Act.

• The standard rent payable to the premises- that is Rs.3,500/- or less per month in Part A or Rs. 2,000/- or less per month in Part B area.

• If it is commercial premises the plinth area should be 14 Sq. Meter or less and it should also fulfill the standard rent per month as in the above class.

• The premises shall belong to a private person or association of persons or a company etc., It shall not belong to the State or Central Government, Muzarai or Wakf, Co-operative institutions, Market Committee, aided Institutions, a building which is less than 15 years of age and that the government has not exempted the building from the application of the Act.

• Stress is on “deemed rent” in section 2(3)(e) of the Act. It refers to the standard rent. Standard rent need not be the rent payable under section 6 of the Act. The agreed rent need not necessarily be the standard rent. What has been paid or being paid by the tenant at the time of filing eviction application/petition may or may not be equal to standard rent. Standard rent is the jurisdictional point it is a good defence for the tenant to dispute thejurisdiction to the effect that until the “standard rent” is fixed by the Controller under section 7, the eviction proceedings cannot be continued.

• A court fee stamp of Rs.50 / – should be affixed on the application/ petition.

• The affidavit by the landlord, affirming the averments made in the main petition along with the eviction application/petition. It should be substantially the same as in the main petition.

• Vakalat of the advocate duly stamped, indicating his enrollment number in the State Bar Council.

• Process memo sufficiently stamped and number of copies of application/ petition and affidavits.

Useful Links: **************

• Karnataka Rent Act

• Indian realty laws.com

• tenant.net

• Newjersy Rent Law

/Comment/Criticism/Compliment are key to Growth/

]]> http://www.legalcrystal.com/blog/civil-law/know-your-rights-obligations-rent-act/feed/ 1 http://www.legalcrystal.com/blog/civil-law/list-of-documents-to-be-obtained-by-a-purchaser-of-flat-from-the-promoter-builder-before-the-purchase/?utm_source=rss&utm_medium=rss&utm_campaign=list-of-documents-to-be-obtained-by-a-purchaser-of-flat-from-the-promoter-builder-before-the-purchase http://www.legalcrystal.com/blog/civil-law/list-of-documents-to-be-obtained-by-a-purchaser-of-flat-from-the-promoter-builder-before-the-purchase/#comments Sat, 14 Nov 2009 03:55:34 +0000 Rekha Prasad http://blog.legalcrystal.com/?p=413

LIST OF DOCUMENTS TO BE OBTAINED BY A PURCHASER

OF FLAT/S FROM THE PROMOTER/BUILDER BEFORE THE PURCHASE:

AS PER KARNATAKA OWNERSHIP FLATS [RGN] RULES RULE 4 REQUIRES THE PRMOTOR/DEVELOPER TO :

1. GIVE TRUE COPIES OF DOCUMENTS OF TITLE  PERTIANING TO THE LAND ON WHICH THE APERTMENT IS BULIT.

2.  CERTIFCATE BY ADVOCATE  AS PER SEC [a]a of sec 3

3. CERTIFICATE OF ENCUMBRANCE

4. THE  APPROVED PLANS AND SPECIFICATION OF THE BUILDING BUILT OR TO BE BUILT ON THE LAND REFERRED.

5. LIST OF FIXTURES ,FITTINGS AMENITIES

6. CERTIFCATE STATING THAT ORIGINAL TITLE DEEDS ARE NOT DEPOSITED WITH ANY CREDITOR /FINANCIAL INSTITTUTION WITH AN INTENTION TO CREATE EQUITABLE MORTGAGE.

AND AN UNDERTAKING THAT THE ORIGIANL WILL BE HANDED OVER TO THE SOCEITY  AS PER THE PROVISIONS OF Act.

7. COMPLETION CERTIFICATE /OCCUPANCY CERTIFICATE

8. CONSENT LETTER FROM POLLUTION CONTROL BOARD WITH RESPECT TO DISCHARGE OF LIQUID EFFULUENT AND EMISSIONS.

9. A STATEMENT STATING THE BASIS ON WHICH ANY ESTIMATED FUGURES OR OTHER INFORMATION IS GIVEN BY THE PROMOTER.

AND ANY OTHER RELEVANT DOCUMENT WHICH INVOLVES THE RIGHT INTEREST AND TITLE OF THE PURCHASER OF FLAT.

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