by Shivendra Pratap Singh | Aug 29, 2024 | Property Dispute
Question: Dear Sir, My neighbour uses my property for construction of his house. I recently built my house with a 3-foot gap on each side, as I utilized the full length of my plot. My neighbor, however, is constructing his house from end to end on his plot, which is 2000 sqft. This construction leaves my gap as the sole source of light and air for my property, and he has also installed windows that face my plot. My neighbor is now requesting access to my property to perform plastering work on his house. I would prefer not to have his workers enter my property for this purpose. Can I deny him access? It seems that the decision not to leave a gap on his plot is his own responsibility. Additionally, I would like to know if I can extend my construction to cover the entire length of my plot in the future, similar to his approach.
Asked from: Uttar Pradesh
Your neighbor does not have the right to access your property if they have not left a gap between the properties. In this case, you can prevent your neighbor from entering your property. To do so, you should file a civil suit seeking a perpetual injunction to legally prohibit them from accessing your property.
A perpetual injunction is a form of relief granted in civil cases where the court orders a party to stop a particular action or to refrain from doing something permanently. It is usually granted when the plaintiff has demonstrated that they have a strong legal right and that this right is being infringed upon by the defendant. It is governed by the Specific Relief Act, 1963.
According to this Act, a perpetual injunction can be issued under Sections 37 and 38. Section 37 deals with the types of injunctions, while Section 38 provides the conditions under which a perpetual injunction can be granted.
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by Shivendra Pratap Singh | Jul 6, 2024 | Property Dispute
Collector has issued notice and demanding fees for recovery citation. I borrowed money from XX and failed to repay within the prescribed time. That loan has been mutually settled by us. I paid the entire outstanding and the bank has issued no objection certificate. Now the collector is mounting pressure on me to pay thirteen lakh as fees for the recovery citation. No conversation with the collector and other officer bearer. Never went to the office and receive any document from the collector's office. I am afraid that the collector can attach my property. Please help.
Asked from: Uttar Pradesh
Based on the facts of your case, it appears that the loan account was closed following an amicable settlement between the borrower and the creditor. When the bank issued the recovery certificate, it might have requested the collector to recover the dues in the form of land revenue, which led to the issuance of the recovery citation by the collector.
Since the matter has been amicably settled, the loan account has been closed, and the bank has issued a no objection certificate, it seems that the collector has not taken any steps to recover the loan. Given that no action has been taken by the collector or his office, the demand for fees for the recovery citation is illegal.
In the case of Maharajwa and others vs. State of Uttar Pradesh (2013), the Allahabad High Court held that if the authority has not been able to recover the amount of arrears through the coercive process undertaken by them, there is no justification for releasing the cost of recovery from the defaulter.
In the petition, you should seek a direction from the court to stop the proceedings related to the recovery citation and to preclude the collector from demanding fees for the recovery citation. You should file a writ petition in the high court for the issuance of a mandamus on these grounds:
- Matter has been settled between the borrower (petitioner) and creditor
- That settlement was amicable and without interference of Collector
- Collector did nothing in order to recover the loan from the petitioner
- In absence of any step taken by Collector, demanding fees for recovery citation is illegal
The court shall issue the writ of mandamus, thereby commanding the collector to drop the proceedings and not to recover any amount from you.
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by Shivendra Pratap Singh | Jun 28, 2024 | Property Dispute
I want to know if I can take legal action against the tenant when the lease agreement is unregistered? I let-out a building to a company for a term of five years. Proper lease agreement was prepared but it was unregistered till date. In the meantime the tenant has vacated the premises without terminating the lease agreement. He also did not pay the rent for eleven months. I told him many times that pay the rent but he said that some superior officers are proposed to visit the premises and after some changed in the interior they shall extend the period of lease and also increase the rent.
It was my fault because I thought that rent will increase in coming months so do not compel him to pay the rent. I have the lease agreement which is duly signed by the concerned authority of the company. In this scenario can I take any legal action against the tenant. One expert says that lease agreement should have been registered and in absence of registration I can not take any legal action against him.
Asked from: Punjab
You can sue the tenant for recovery of rent due and for damages resulting from the loss of rent. The lease was granted for a period of five years. According to Section 107 of the Transfer of Property Act, if the tenure of a lease is more than one year, the lease agreement must be registered. Therefore, the registration of the lease agreement was mandatory, but you let out the premises without following the necessary procedure.
According to Section 17 of the Indian Registration Act, an unregistered document is not admissible as evidence. Hence, you cannot produce the lease deed as evidence to prove the obligations of the lessee. Therefore, on the basis of an unregistered lease agreement, you cannot compel the tenant or lessee to perform the promises made in the lease agreement. Specific performance means compelling the defaulting party to obey the terms of the agreement in its letter and spirit.
If the lease agreement had been duly registered, you could sue the lessee for the specific performance of the contract. On the basis of the unregistered deed, you still have the right to sue him for breach of contract.
The unregistered lease agreement proves that both parties entered into an agreement to perform certain acts. You can sue for the payment of due rent with interest and for the prospective loss of rent.
You should file a civil suit based on this agreement. The lessee has breached the agreement because he vacated the premises without terminating the agreement properly.
Also read: Police officer is illegally interfering in my property
by Shivendra Pratap Singh | Jun 8, 2024 | Criminal Matter
Can the court grant bail in grievous hurt when the victim died after FIR was lodged. There was a dispute between me and the victim about parking of vehicles. In the meantime the victim assaulted me with fists. In private defence I also attacked him with hands and fists. After the intervention of bystanders the dispute was resolved and I returned to my home. Later on I came to know that he (victim) has lodged a FIR against me under section 325, 504, 506 IPC. After seven days of the incident the victim dies due to internal injuries. Now the investigating officer added section 302 in the FIR. In this condition, can I get bail?
Asked from: Uttar Pradesh
You can get bail even after addition of section 302 IPC. The investigating officer has added Section 302 IPC (offence of murder) when the victim died. It was the responsibility of the investigating officer to add the relevant sections and carry on the investigation. There is nothing illegal about adding Section 302.
Regarding bail, the FIR was initially lodged for the offences of grievous hurt and criminal intimidation. The alleged fight started over a very petty issue. Neither side used any dangerous weapons. Furthermore, you had no criminal intention to cause the death of the victim.
The death was caused by internal injuries, which were neither intended nor known to you. You should obtain the post-mortem report to analyse the cause of death. If the death occurred due to septicemic shock or the aggravation of any disease, you can easily get bail.
The facts of your case suggest that the fight started without premeditation. You had no intention to cause death, and when you assaulted him with your hands and fists, there was no intention or knowledge that such a normal fight could cause death. The court often grants bail in cases of grievous hurt.
You cannot move for anticipatory bail under Section 438 CrPC because in Uttar Pradesh, anticipatory bail is not applicable in offences where the death sentence can be awarded. You have to surrender (judicial custody) before the court and file for regular bail under Section 437 CrPC.
The FIR was registered under Sections 325, 504, and 506 IPC. During the investigation, the charge of murder was added. Therefore, while bail may be granted by the court for grievous hurt, the victim died after the FIR was filed.
In the prevailing situation, it is not advisable to move to the district court for bail. You should approach the High Court under Article 226 of the Constitution of India to seek a stay of arrest during the investigation.
Your case is fit for protection against any kind of coercive action by the police. Since you are not yet arrested, you can approach the High Court. In the absence of criminal intention and knowledge to cause death, the court may extend protection against arrest until the submission of the police report.
Also read: Non-public servant can be persecuted under Prevention of Corruption Act
by Shivendra Pratap Singh | May 26, 2024 | Domestic Violence
Domestic incident report is still pending in my case from eight months. Magistrate called a domestic incident report from the protection officer when I filed a complaint under section 12 of the domestic violence act. More than twenty three dates have gone but the domestic incident report has not been filed by the protection officer. My advocate time and again requested the court to take action against the protection officer for not submitting that report. No action has been taken by the magistrate against the protection officer. In this situation I am facing many difficulties. My husband has filed a divorce case against me in the Mathura family court.
Asked from: Uttar Pradesh
The Magistrate has no power to take action against the protection officer if he is not filing a domestic incident report. Therefore, do not request the court to take action against the protection officer for causing a delay in filing the domestic incident report.
In this situation, you should file a miscellaneous application in the court, requesting cognizance of the offence and issuance of a notice to the respondent even in the absence of the domestic incident report.
When the complaint is directly filed by the aggrieved person, either by herself or through an advocate, it is not mandatory for the Magistrate to seek a domestic incident report (DIR) from the protection officer.
A domestic incident report is mandatory only when the protection officer or service provider files a complaint on behalf of the aggrieved person.
The provisions of the Domestic Violence Act 2005 do not require that only the aggrieved person can file a complaint. A protection officer, service provider, or any other person can file a complaint on behalf of the victim of domestic violence.
In Prabha Tyagi vs. Kamlesh Devi (2022), the Supreme Court held that the Magistrate can take cognizance of the offence and issue a notice to the respondent even in the absence of a domestic incident report.
You should file a miscellaneous application in the court, requesting cognizance of the offence and issuance of a notice to the accused in the absence of a DIR. The Magistrate cannot seek a DIR if the complaint is filed by the aggrieved person, either by herself or through an advocate.
Domestic incident report is pending for eight month is seriously affecting the progress of your case. You should try to expedite the proceedings and seek time bound disposal of your case. Therefore, you should approach the high court under Section 483 crpc (code of criminal procedure).
You can pray from the High Court for early disposal of miscellaneous application as well as the complaint. The High Court shall direct the Magistrate to expedite the proceedings and dispose of the case within a fixed time.
Also read: Bail can be granted if offence of murder added during investigation
