HEIGHT RESTRICTIONS JUDGMENT IN GROUP MATTER OF KALPATARU HITS AND MISSES
This Blog is only limited to the point of law on the basis of which observations are made and order is passed. This is very significant Judgment because the site in question is in the vicinity of International Airport and application of builder is for increase in height as permissible. The case of the Respondent is rejected because the height restrictions were capped on basis of 12th April 2018, draft rules vide Notification No. GSR 365 published by Union of India Respondent in the matter. Another caution is after this order top floors will be sold out and it is the Bank, Flat Purchaser and investors will be the sufferers. This Judgment is certainly giving rise to high rises in the vicinity. The specific statement from the Union of India is must else there are rulings of Supreme Court that, draft rules can be acted upon if there is intention of the Government to implement the same. Para 41 of the said Judgment is an operative part of final Judgment: 41. As already mentioned above, the impugned NOC’s were also based on the decision of the Appellate Committee and not granted in accordance with the provisions of the 2015 Rules. For the reason stated above, we are of the view that the impugned NOC’s have not been issued in accordance with the provisions of the 2015 Rules and are therefore also liable to be quashed and set aside and the Writ Petitions are allowed in terms of prayer (b) but only to the extent of the first part thereof, which seeks quashing of the impugned NOC’s. It is made clear that by this order we are not issuing any direction to the Respondents to issue a revised NOC of any particular height as prayed for in the latter part of prayer (b). Respondent No. 2 will consider the applications for grant of NOC afresh in accordance with the provisions of the 2015 Rules and issue its NOC strictly in accordance with law within a period of four weeks from the date of pronouncement of this Judgment. This is of course, if in the meanwhile, the draft 2018 Rules or any other form of legislation has not been brought into force. If it has, then the grant of NOC will be governed by the new legislation. Case pleaded by Petitioners: Three Writ Petitions that were heard together arise from very similar facts and raise identical issues and are therefore being disposed of by a common order and judgment. Facts: Petitioner, Kalpataru Ltd. Is developing three plots all of which are at Village Kole Kalyan, Santacruz, East. The frst plot, in respect of which the Petitioner is also the owner, is CTS No. 4100 (“Plot No. 1”); the second plot is sub-divided Plot No. A of CTS No. 4106 and 4108 (“Plot No. 2”); and the third plot is sub-divided Plot No. B of CTS No. 4106 and CTS No. 7632 (“Plot No. 3”). Plot Nos. 1, 2 and 3 (hereinafter referred to as the “said Plots”) are at a distance of 2548 meters (Plot No.1), 2439.44 meters (Plot No. 2) and […]
Read moreBanning of 59 Apps by India Law in India and UN Resolutions
29th June,2020 at 8.49 PM Meity released a Press Note banning 59 Chinese App. There was a resounding effect of the said decision internationally.Most of the Countries have supported said ban. https://pib.gov.in/PressReleseDetailm.aspx?PRID=1635206 Now let us see what if the same is challenged in court of Law. Let us see first provisions of Indian Laws Information and Technology Act,2000 is inter-alia concerned law. Section 2 provides for various definitions. Section 2(a) defines term Access with its grammatical variations and cognate expressions means gaining entry into, instructing or communicating with the logical, arithmetical, or memory function resources of a computer, computer system or computer network; Section 69A of the said Act empowers Central Government to block public access of any information it provides as under: 69A. Power to issue directions for blocking for public access of any information through any computer resource.–(1) Where the Central Government or any of its officers specially authorised by it in this behalf is satisfied that it is necessary or expedient so to do, in the interest of sovereignty and integrity of India, defense of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above, it may subject to the provisions of sub-section (2), for reasons to be recorded in writing, by order, direct any agency of the Government or intermediary to block for access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource. (2) The procedure and safeguards subject to which such blocking for access by the public may be carried out, shall be such as may be prescribed. (3) The intermediary who fails to comply with the direction issued under sub-section (1) shall be punished with an imprisonment for a term which may extend to seven years and also be liable to fine. 69B. Power to authorise to monitor and collect traffic data or information through any computer resource for cyber security.–(1) The Central Government may, to enhance cyber security and for identification, analysis and prevention of intrusion or spread of computer contaminant in the country, by notification in the Official Gazette, authorise any agency of the Government to monitor and collect traffic data or information generated, transmitted, received or stored in any computer resource. (2) The intermediary or any person in-charge or the computer resource shall, when called upon by the agency which has been authorised under sub-section (1), provide technical assistance and extend all facilities to such agency to enable online access or to secure and provide online access to the computer resource generating, transmitting, receiving or storing such traffic data or information. (3) The procedure and safeguards for monitoring and collecting traffic data or information, shall be such as may be prescribed. (4) Any intermediary who intentionally or knowingly contravenes the provisions of sub-section (2) shall be punished with an imprisonment for a term which any extend to three years and shall also be liable to fine. Explanation.–For the purposes of this section,– (i) ―computer contaminant shall have the […]
Read moreIs Sky the Limit or its Limited Sky ? Right to Privacy and Drones
Let us see first what is Drone? In ancient times pigeons were used as flying objects for transmitting data from person to person. They were trained to locate the person. Similarly monkeys were also messenger for transmitting data but there was nothing more than transmitting messages. In 4th and 5th Century great Poet Kālidāsa created his own genre of poetry with Meghadūta (The Cloud Messenger), the story of a Yaksha trying to send a message to his lover through a cloud. Kalidasa set this poem to the mandākrāntā meter, which is known for its lyrical sweetness. It is one of Kalidasa’s most popular poems and numerous commentaries on the work have been written. In todays time we have advance version of Drone that is Unmanned Vehicle. An unmanned aerial vehicle (UAV) (or un-crewed aerial vehicle, commonly known as a drone) is an aircraft without a human pilot on board and a type of unmanned vehicle. UAVs are a component of an unmanned aircraft system (UAS); which include a UAV, a ground-based controller, and a system of communications between the two. The flight of UAVs may operate with various degrees of autonomy: either under remote control by a human operator or autonomously by onboard computers. Categories of Drone and its uses UAVs were originally used for missions too “dull, dirty or dangerous” for humans. While they originated mostly in military applications, their use is rapidly expanding to commercial, scientific, recreational, agricultural, and other applications, such as policing and surveillance, product deliveries, aerial photography, infrastructure inspections, smuggling, and drone racing. Civilian UAVs now vastly outnumber military UAVs, with estimates of over a million sold by 2015. It can also be used for terror and spying. A UAV is defined as a “powered, aerial vehicle that does not carry a human operator, uses aerodynamic forces to provide vehicle lift, can fly autonomously or be piloted remotely, can be expendable or recoverable, and can carry a lethal or nonlethal payload”, missiles are not considered UAVs because the vehicle itself is a weapon that is not reused, though it is also un-crewed and in some cases remotely guided. That being said, UAV is a term that is commonly applied to military use cases UAVs typically fall into one of six functional categories (although multi-role airframe platforms are becoming more prevalent): Target and decoy – providing ground and aerial gunnery a target that simulates an enemy aircraft or missile Reconnaissance – providing battlefield intelligence Combat – providing attack capability for high-risk missions Logistics – delivering cargo Research and development – improve UAV technologies Civil and commercial UAVs – agriculture, aerial photography, data collection Classifications according to aircraft weight are quite simpler: Micro air vehicle (MAV) – the smallest UAVs that can weigh less than 1g Miniature UAV (also called SUAS) – approximately less than 25 kg Heavier UAVs First we will study two important Judgments of Supreme Court touching the subject of Right to Privacy and provisions of open sky to fly unmanned vehicles in India. Flying unmanned vehicles has many uses but it has many disadvantage. It can be utilized for terror purpose and it can also used for surveillance. In India till recently […]
Read moreCOVID 19 AND VIRTUAL COURTS PROS AND CONS
What is real court room. In a court room you enter. Many senior counsels there and other lawyers. Big bag of papers and Judgments, all interns and juniors listen to arguments and cross examination of witness. Judge is recording evidence defense lawyer says My Lord real witness is entering court room and everyone look at the entrance of court room. This we have seen in Hindi Films. Drama, suspense and action. New generation must see Mamta movie where Court room set up is shown. If you want to see how Jury functions, than you must see Nanavati Murder case of Akshay Kumar. But this was prior to covid19. We are now on virtual courts and post covid consequences. We are heading toward virtual courts. Like e-market, e-schools the Judiciary is taking new avatar Justice on line. Many firms are now advising online and even Mediation carried out online. But in India in May 2017 then CJI Justice Kehar inaugurated Integrated Management System to go Apex Court paperless. An Integrated Management System (IMS) integrates all of an organization’s systems and processes into one complete framework, enabling an organization to work as a single unit with unified objectives. Covid a pandemic has changed life. Whether its temporary or long tenure time will say but in the current scenario facility is provided for Litigants to file the plaint electronically through e-Filing and also pay the Court Fees or Fine online through https://vcourts.gov.in Litigant can view the status of the case also online through various channels created for service delivery. However for adjudication purpose the Litigant may have to appear in person or through the Lawyer in the Court. Virtual Court is a concept aimed at eliminating presence of litigant or lawyer in the court and adjudication of the case online. Due to lock down, Apex Court started Virtual Courts and hearings are conducted orders are also passed. Advantage of Virtual Courts are : Less of paper work and environment friendly; Witness in Dubai , London via video conferencing can depose ; It saves travelling time; Litigant of Bangalore need not travel to Mumbai or Delhi and can remain present via video conferencing ; Cost effective; Electronic documents have changed the world; Social media has changed traditional working of lawyer; Company Courts in Bombay High Court had started digital filing in 2012-2013; Economic and easy to appear and remain present poor litigants will suffer Examples of virtual hearing Best example of virtual hearing first of its kind was of Kasab 26/11 terror accused in Bombay High Court. In an Arbitration matter I have done examination of witness in Dubai in an Arbitration matter as he was unable to come. It saved his 3 working days and cross examination was over in one day. So, time and cost of accommodation and traveling was saved. Disadvantages of Virtual Courts: Its against principles of Trial in open court is undoubtedly essential for the healthy, objective, and fair administration of justice. One of the fundamental principles of natural justice, ‘Open Court’ is found in the Constitution of India under Article 145(4); Section 327 of the Code of Criminal […]
Read moreCan Society insist on Succession Certificate for Transfer and Sale of a Flat and Share Certificate attached thereto?
Is it mandatory for the daughters of Hindu deceased died intestate to obtain Succession Certificate? Ans: Negative The said nomination was registered by the Society. The said Member died leaving behind 4 daughters as the only heirs and legal representatives. The daughters after the demise of the said member being their mother jointly applied to the Society to enter their names as members. As per the directions of the Society, the heirs and legal representatives invited adverse claim by giving Public Notice and Advocate issued a legal opinion for transfer of flat to the nominees and opined that since there is no adverse claim on the shares, the same can be transmitted and transferred to the legal heirs of the deceased. In the meantime, subject to opinion the Society transferred the said Share Certificate. The nominees also executed Indemnity cum Declaration Bond to the Society. Hence, all the legal formalities for transfer of the said Share Certificate in the name of the nominee was complied in accordance with law. Thereafter, as the daughters became regular members of the Society they gave notice to the Society for sale of the said Share Certificate giving first preference of purchase to the current existing members. One of the existing members agreed to purchase the said flat. However, the Society insisted on obtaining Succession Certificate. The question now arise is whether in absence of Will of a Hindu deceased is it mandatory for Hindu daughters to obtain Letters of Administration or Succession Certificate. 212. Right to intestate’s property. – (1) No right to any part of the property of a person who has died intestate can be established in any Court of Justice, unless letters of administration have first been granted by a Court of competent jurisdiction. (2) This section shall not apply in the case of the intestacy of a Hindu, Muhammadan, Buddhist, Sikh, Jaina, [Indian Christian or Parsi]” We now explain the said provision with the assistance of various judgments of the Hon’ble Court of India. In Adarsh Rattan and others Vs State Bank of India reported in 1987(2) ALL IBLJ 363. Quoting the said provisions of law, the Punjab and Haryana High Court relying upon the Judgment in Ashutosh Ghosh Vs Pratapchandra Banerjee reported in (1937) ILR 1 Cal. 433 recorded in paragraph No.14 that the Estate of the Hindu deceased could not be given to his heir without obtaining Letters of Administration. That was the case in which a Hindu had purchased a policy of insurance there was a specific term therein that the person or persons to whom the sums assured are payable are his executors, administrators or assigns. The heirs were neither administrators nor the executors nor the assigns. In this context the Calcutta High Court ruled that there was no jurisdiction for reading the work “Administrator” in the policies as including those who are relieved of the necessity of taking out Letters of Administration by reason of provision of Section 212. In paragraph No.16 of the said Judgment, His Lordship directed to furnish Indemnity Bond and observed that “one does not have to coin unnecessary reasons for […]
Read moreCan You Transfer Property on basis of Power of Attorney?
Let us understand what id Power of Attorney ( POA) ? The term POA is defined in the Power of Attorney Act,1882 and it says Definition.—In this Act, “Power-of-Attorney” includes any instruments empowering a specified person to act for and in the name of the person executing it. 1A. Definition.—In this Act, “Power-of-Attorney” includes any instruments empowering a specified person to act for and in the name of the person executing it. It means that definition is inclusive and any document which empowers to act on behalf of executor is POA. It attracts Stamp Duty and in certain cases if property is transferred by virtue of POA, than Stamp Duty is attracted as on Deed of Conveyance. Scope of Power of Attorney A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. In State of Rajasthan v. Basant Nehata – 2005 (12) SCC 77, Court held: A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience. Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers-of-Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee.- An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on […]
Read moreDeed of Family Arrangement & Law
Best way to family dispute settlement is to record the terms by way of Deed of Family Arrangement or Family Settlement. What is Family Settlement? What does law say? Whether it requires registration? It attracts Stamp Duty? Now we will take up first Question What is Family Settlement? In the matter of Sahu Madho Das And Others vs Pandit Mukand Ram And Another 1955 AIR 481= 1955 SCR (2) 22 Meaning of Family Arrangement was expressed and interpreted the Courts lean in favour of family arrangements that bring about harmony in a family and do justice to its various members and avoid, in anticipation, future disputes which might ruin them all, that we have no hesitation in taking the next step (fraud apart) and upholding an arrangement under which one set of members abandons all claim to all title and interest in all the properties in dispute and acknowledges that the sole and absolute title to all the properties resides in only one of their number (provided he or she had claimed the whole and made such an assertion of title) and are content to take such properties as are assigned to their shares as gifts pure and simple from him or her, or as a conveyance for consideration when consideration is present. In Ram Charan Das vs Girija Nandini Devi 1966 AIR(SC) 323 it was held that, Courts give effect to a Family Settlement upon the broad and general ground that its object is to settle existing or future disputes regarding property amongst members of a family. The word family in the context is not to be understood in a narrow sense of being a group of persons who are recognised in law as having a right of succession or having a claim to a share in the property in dispute In Tek Bahadur Bhujil vs Debi Singh Bhujil 1966 AIR(SC) 292 Family Arrangement as such can be arrived at orally. Its terms may be recorded in writing as a memorandum of what had been agreed upon between the parties. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what had been agreed upon so that there be no hazy notions about it in future. It is only when the parties reduce the Family Arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess Does it require Registration? Ramgopal vs Tulshi Ram And Anr. AIR 1928 All 641 Following Principles were laid down: (1) A family arrangement can be made orally. (2) If made orally, there being no document, no question of registration arises. (3) If though it could have been made orally, it was in fact reduced to the form of a “document”, registration (when the value […]
Read moreVexatious Litigation Act
Maharashtra has provision to stop vexatious litigant, while for Central Government a Bill No XI is introduced in Rajya Sabha on 11th March 2016. What is Vexatious? In common parlance, “To vex” means anger by a slight or a petty annoyance; irritate. “Vexation” means the act or an instance of vexing or annoying or distressing thing. “Vexatious” means such as to cause vexation. (See The Oxford English Reference Dictionary, Edition 1995). The term “vexatious”, when used in law, signifies an action not having sufficient ground therefore and seeking only to annoy *7* appln. 3397.03. sxw the adversary. The Advanced Law Lexicon, 3rd Edition Reprint 2007, defines the term “Vexation” as under: “The action of troubling or harassing by aggression or interference; the action of troubling or irritating by physical means.” “Vexatious” has been defined as causing or likely to cause vexation. The “vexatious action” or “vexatious proceedings” has been defined as under: “An action brought for the purpose of annoying the opponent and with no reasonable prospect of success.” 10 Black’s Law Dictionary, Eighth Edition, defines the words “vex”, “vexation”, “vexatious”, “vexatious litigant” and “vexatious proceeding” as under: (a) Vex : to harass, disquiet, or annoy.(b) Vexation : The damage that is suffered as a result of another’s trickery or malice.(c) Vexatious : (Of conduct) without reasonable or probable cause or excuse; harassing; annoying.(d) Vexatious litigant : A litigant who repeatedly files frivolous lawsuits.(e) Vexatious proceeding : A lawsuit instituted maliciously and without good cause. The Object and Reasons of the Bill are : Frivolous and vexatious litigations are the cause of concern for the courts for quite some time. Often, this matter has been highlighted by various courts and the Law Commission as well which favoured for a check on the filing of frivolous and vexatious proceedings. Attimes, it has been seen that many persons abuse the process of law and indulge in the habitual and intentional filing of frivolous and vexatious civil or criminal proceedings to harass other persons without any reasonable ground. It has also been observed by the courts that some persons habitually and persistently file cases on the issues, which have already been decided once or more than once against some parties or their successors or against different parties. Besides the harassment, filing of such proceedings also leads to wastage of the precious time of the law courts which are already burdened. Such frivolous litigation cause unnecessary and avoidable strain on the States’ resources in the area of dispensation of justice. There is no denying of the fact that every person has right to file civil or criminal proceedings against any other person, but a check is necessary to allow the court to examine the bona fide of a person filing the proceeding. Many countries in the world, like the USA, the UK have enacted a law on the filing of frivolous and vexatious litigation. In our country also, there is a law on the subject in two States, i.e., Tamil Nadu and Maharashtra. In view of the concern expressed by the courts, it is necessary that a central law be enacted to prevent the […]
Read moreMEDIATION , WRITTEN STATEMENT And LIMITATION ACT The Commercial Courts, Commercial Division And Commercial Appellate Division Of High Courts Act , 2015 No. 4 Of 2016
“Provided further that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the Court, for reasons to be recorded in writing and on payment of such costs as the Court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record.”;
Read moreInternational Award for sell of security by stepping down Indian Company in favour of foreign Company under Joint Venture at old price
Origin of Issue: The Judgment: The above issue first came up in Tata Docomo matter where RBI intervened when Tatas agreed to comply International Arbitration Award. They despite of intervention by RBI filed Consent Terms and directions were given to parties to obtain sanction from RBI and other competent authorities. Ntt Docomo Inc vs Tata Sons Limited on 28 April, 2017 Delhi High Court In this matter Petitioner sought to execute final Award of a London Arbitration Tribunal. The issues before AT ( Arbitral Tribunal) were : (i) Whether special permission from RBI was required to perform the Sale Option at a price in excess of the NPR Fair Value without violating Indian law? (ii) Whether Tata had an “absolute” obligation to perform the Sale Option under Clause of the SHA? (iii) Whether Tata and Docomo were obliged to make reasonable endeavours to obtain such special permission of RBI, and if so whether Tata made reasonable endeavours to obtain RBI‟s special permission? (iv) What is the consequence in law, and under the contract, of the refusal of RBI to grant special permission? (v) Whether Tata’s non-acquisition of the Sale Shares at the Sale Price paid directly or indirectly constituted a breach of the SHA by Tata? (vi) Whether, (payment of any amount in excess of the FEMA Pricing Guidelines is prohibited, such excess amount can be indirectly made good by way of an award of damages or restitution? (vii) Whether in any event Docomo is entitled to restitution of 50% of its investment?” We will discuss in particular one Issue : The question whether a contractual obligation remains enforceable if it is subject to a requirement for special permission under the FEMA ? Was it necessary for the AT to decide whether special permission was required in order for Tata to make payment under the indemnity in the second part of Clause , or the effect in law of RBI’s refusal of special permission? The AT held that, there were other methods of performance which were unaffected by the refusal. Tata might or might not have been in a position to perform in ways which were the subject of a general permission in practice, but that is a different matter.” It categorically held that “Tata is liable for breach of contract.” The impediment to performance was therefore factual rather than legal. The only reason why the aforementioned two methods of performance were not available to Tata after the delivery of the Trigger Notice in 2014 was that the market value of the Sale Shares had fallen, so that no non-resident buyer was willing to pay the Sale Price; and the fair market value was a fraction of the Sale Price. (iii) The question whether a contractual obligation remains enforceable if it is subject to a requirement for special permission under the FEMA Regulations does not, therefore, arise. Nor was it necessary for the AT to decide whether special permission was required in order for Tata to make payment under the indemnity in the second part of Clause 5.7.2, or the effect in law of RBI’s refusal of special permission. RBI […]
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