PRESIDENT’S POWER TO ADJUDICATE UPON ELECTION PETITION
Why we are discussing this issue? Opening Remarks: In 2024 Lok Sabha general election was held in May. This was the 18th Lok Sabha election. All political parties offered in manifesto many promises. Freebies are offered by almost all political parties. In Delhi the local state government is sworn in thrice based on freebies. Similarly in Karnataka and Telangana the state government is elected based on freebies. The disadvantage of such freebies is the economy of the State is pulled back due to nonproductive expenses. The taxpayers do not get more advance facilities from the tax they have paid. PIL challenging freebies is pending before the Supreme Court. During Lok Sabha election we saw that one of the parties Congress have distributed a guaranteed cards along with the forms that if they come to power, they will give Rs.8500/- to every woman and Rs.1,000,00/- per year to meet major expenses. This party has won more seats than last two elections and there was religious concentration of votes. There was also a statement that the party if come to power would confiscate entire wealth and do caste survey and thereafter redistribute the same. The congress party won 99 Lok Sabha seats. However, they are in power in three states. Telangana, Himachal and Karnataka. They can offer them. But women who were given guarantee cards along with form started Queuing up outside Congress Party offices. They said we have lost. The question arise now is whether this is a blatant fraud? What does law say? The law which governs election is the Representation of peoples Act 1951 ( Said RP Act 1951) The question is whether all this statements go against the provisions of Section 123 of RP Act 1951 ? A complaint is pending before the President of India challenging election. Now question arises Can third party challenge in representative character the election of candidates who belong to a single largest party who won election on basis of guaranteed card? Who has jurisdiction to hear the election Petition under Section 123 and 8A of RP Act 1951? Does President of India have power under Section 123 or 8 A of the said R.P. Act 1951? This Act came into force on 17th July 1951. Preamble of the Act explains the purpose of its enactment. An Act to provide for the conduct of elections to the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt 1*** practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections. The terms corrupt practices is defined in the Act as “corrupt practice means any of the practices specified in section 123” What does corrupt practices mean. Section 123 in The Representation of the People Act, 1951 provides for the same. Corrupt practices.— The following shall be deemed to be corrupt practices for the purposes of this Act:— (1)“Bribery”, that is to say— (A) any gift, offer or promise by a candidate […]
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WHAT HAPPENS WHEN MAKER OF THE WILL DIRECTS TO PAY THE EXECUTOR FROM A PARTICULAR FUND? CAN COURT ISSUE A PROBATE?
To understand the case query we must first learn the provisions of the Indian Succession Act of 1925 IS AN EXECUTOR A TRUSTEE? “There is a distinction between a trustee and an executor, in that the former has only the power to pay what is vested in him as trustee to the persons for whose use he holds it, but has no general power to receive and pay what is due to and from the estate, which is the office of the latter (vide paragraph 13, p. 12 of Williams). The same proposition appears in Halsbury’s Laws of England (3rd Edn., Vol. 16, p. 124, in paragraph 180)” Provisions of Indian Succession Act 1925 Sec 222: Probate only to appoint an executor. (1) Probate shall be granted only to an executor appointed by the will. (2) The appointment may be expressed or by necessary implication. Illustrations (i) A wills that C be his executor if B will not. B is appointed executor by implication. (ii) A gives a legacy to B and several legacies to other persons, among the rest to his daughter-in-law C, and adds “but should the within-named C be not living I do constitute and appoint B my whole and sole executrix”. C is appointed executrix by implication. (iii) A appoints several persons executors of his will and codicils and his nephew residuary legatee, and in another codicil are these words,– “I appoint my nephew my residuary legatee to discharge all lawful demands against my will and codicils signed of different dates”. The nephew is appointed an executor by implication. Grant of administration of universal or residuary legatees.— When—(a)the deceased has made a Will, but has not appointed an executor, or (b)the deceased has appointed an executor who is legally incapable or refuses to act, or who has died before the testator or before he has proved the Will, or (c)the executor dies after having proved the will, but before he has administered all the estate of the deceased, a universal or a residuary legatee may be admitted proving the Will and letters of administration with the Will annexed may be granted to him of the whole estate, or of so much thereof as may be unadministered. Narration: Thus, the test for finding out whether a person is an executor according to the tenor is to find out whether he is, by necessary implication, nominated by the testator in his stead to generally administer the estate and to pay the testator’s debts and to receive his dues in the performance of his will. An executor is placed in the stead of the testator and he has the right of action against the testator’s debtors and has also the right to dispose of the goods of the testator towards the payment of his debts and the performance of his will. An executor need not be expressly nominated; and if by necessary implication the testator recommends or commits to one or more the charge and office, or the rights which appertain to an executor, it amounts to as much as the ordaining or constituting him or them to be […]
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TOWERS, TRANSFERABLE DEVELOPMENT RIGHTS AND UNCERTAINTY
TOWER BUILDINGS IN MUMBAI BLISS OR BANE Mumbai was a peaceful place, with sophisticated and cool roads. Tall towers are now new skylines in Mumbai. Jam-packed traffic, roads on ventilators, metro, and coastal roads adorn the site of Mumbai city. Redevelopment of the old building is a booming business now. They are given TDR and additional FSI. But what if this tower falls or collapses? What if the SRA building collapsed and became unsafe? Is there any provision? How such towers will be constructed? What are the rights of flatholders and member’s? Will Insurance save the flat holders’ future? Before answering so many questions let us see the inter-alia relevant provisions of newly framed Development Control Rules for Greater Mumbai. Provisions relating to underdevelopment Control and Promotion Regulation 2034 [ DCPR 2034]. 33(6) Reconstruction of buildings destroyed by fire, or which have collapsed, or which have been demolished under lawful order Reconstruction of buildings that existed on or after 10th June 1977 and have ceased to exist for reasons cited above, shall be allowed to be reconstructed with FSI as per the Regulation No 30(C). Provided that if the area covered under a staircase/lift has not been claimed free of FSI as per the then prevailing Regulation as per the occupation plan, the area covered under staircases/lifts shall be considered while arriving at protected BUA in such cases the premium for entire staircase lift area in the proposed building as per these Regulations shall be recovered. This FSI will be subject to the following conditions: Reconstruction of the new building on the plot should conform to provisions of DP and these Regulations. Reconstruction will be subject to an agreement executed by at least 70 percent of the landlords and occupants each in the original building, within the meaning of the Mumbai Rents, Hotel and Lodging House Rates Control Act, 1947, and such the agreement shall make a provision for accommodation and re-accommodate the said landlord/all occupants in the new building on agreed terms and a certificate from a practicing advocate having a minimum of 10 years’ experience, is submitted confirming that on the date of application, reconstruction, agreements are executed by at least 70% of the landlords and occupants each in the original building with the developer/owner. The Advocate shall also certify that the agreements with occupants are valid and subsisting on the date of application. The Carpet area of residential/non-residential premises may be altered with the consent of occupants. Reconstruction shall be disallowed on set-back areas or areas required for road-widening and such areas shall be handed over to the Corporation. These provisions shall not apply to buildings wholly occupied by warehouses and godowns. If the building is reconstructed with existing FSI/BUA prior to its collapse/demolition, then the requirements of front & marginal open spaces shall be as per the Regulation No.41(5) of these Regulations. Provisions of R.No.41(5) is as under: Provisions in open spaces for plots in Reconstruction/Redevelopment Schemes under the Maharashtra Housing and Area Development Authority Act, 1976, Slum Rehabilitation Authority and Redevelopment Scheme of municipal tenanted properties; in case of DCR 3(5),33(6),33(7),33(7)(A),33(7)(B),33(9),33(9)(A),33(9)(B),33(10), 33(10)(A),33(11),33(15)and 33(20)(A): The following […]
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CAN PARLIAMENT SET UP SPECIAL COURT TO DISPOSE OFF PENDING MATTERS? A DISCUSSION AND SUGESSIONS
Indians are a very tolerant community. Citizens are basically law-abiding. But as per data available there are more than 5 crore cases are pending in various courts across India. This includes criminal, civil, DRT, matrimonial, adoption, insolvency, and others. There is always vacancy for Judges and there is also friction between different stakeholders regarding the method of appointment. The pending cases are monetary disputes, land disputes, agricultural land, easement, flat purchasers right, and so on. This also includes international arbitration awards and their execution. When a suit is filed immediate party moves for ad-interim reliefs by way of a Notice of Motion or Interim Application as the case may be. When the order is passed same Notice of Motion comes up for a final hearing after 5 to 10 years. By that time if Plaintiff did not get the order he loses the edge and his right. Then suit may be on board for framing of Issues may be another 5-10 years. The next stage is the affidavit of evidence, admission denial of documents, and cross-examination of witnesses. When a decree is passed it takes time of 2 to 3 years for sealing. When the decree is ready for execution if not executed then we have to take out 21×22 notice in which takes another 2 years to reach and there may be objections. So, for Plaintiff entire exercise is futile. Citizens need a remedy that is speedy and result oriented. The matter doesn’t end here after the ad-interim there is an Appeal from the Order then the Supreme Court and so on and so forth. The litigation is unending and is also costly. To overcome this situation government introduced concept of mediation. It is not much successful. As far as Arbitration is concerned the new concept of institutional arbitration is introduced. It may have been successful but not much accepted by common people like new entrepreneurs, startups, and the common citizens. That is due to cost and fees of an arbitrator. Many petitions are filed in Supreme Court challenging fees of the arbitrator. (See ONGC vs Afcons Gunanusa JV) Does the question arise what is the remedy? The remedy lies in our constitution. Article 217 says the Appointment and conditions of the office of a Judge of a High Court.—(1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal and [shall hold office, in the case of an additional or acting Judge, as provided in article 224, and in any other case, until he attains the age of [sixty-two years]:] 126. Appointment of acting Chief Justice.—When the office of Chief Justice of India is vacant or when the Chief Justice is, by reason of absence or otherwise, unable to perform the duties of his office, the duties of the office shall be performed by such one of the other Judges of the Court as the President may appoint for the purpose. 127. Appointment of ad hoc Judges.—(1) If at any time there should not be a quorum of the Judges of the Supreme Court available to hold or […]
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