Is NJAC a violation of Article 368 or violates the theory of pith and substance? To understand we must go back to the root of the matter. Brief History This issue is neither constitutional nor legal. The issue is to decide the procedure for appointment of Judges in High Courts namely the High Court and Supreme Court. As such the debate on the procedure to appoint judges to higher courts was debated forcefully by several leading giant members of the Constituent Assembly. But no consensus was drawn. The details we shall see here are below. But before that somewhere in the year 1991 by order and Judgement of the Supreme Court, a system was designed by the name Collegium. In Collegium 6-8 Judges would consider candidates for the office of the higher court judges which includes the Chief Justice of State and Supreme Court Collegium members. Who selects the candidates and forwards the names to the Law Ministry for scanning intelligence background. There is no other role of the Government in the selection process. The President in the course gives his assent and notifies. Is this a correct system that was dreamt by the makers of our Constitution? Or is hit by pith and substance? Link to read Judgement : https://indiankanoon.org/doc/753224/ Current scenario and the allegations: Over a period of time, this system was allegedly affected by nepotism and it is alleged that it has created a monopoly. There were news reports as well as reports of a senior lawyer at the bar that 50% of the Judges are relatives of the ex-Judges. In the meantime, the Government enacted a law called National Judicial Appointments Commission Act, 2014 ( NJAC ) which was abrogated and declared ultra-vires by the Supreme Court. This resulted in the continuity of the Collegium System. In its logical and practical argument that the Judiciary, it’s argued that the participation of politicians in the selection process may vitiate the independence of the judiciary. This danger was also visualized by the late Dr. B.R. Ambedkar. For the said reason though amendments were moved to adopt the American method of appointment of judges to the higher courts same were withdrawn by respective Constituent Assembly members. However, the late Dr. Ambedkar could not have thought of the situation persisting today about the collegium system which has allegedly resulted in the monopoly of a few families. Here is the link: https://timesofindia.indiatimes.com/india/govt-gives-collegium-proof-of-nepotism-in-picks-for-hc-judges/articleshow/65220425.cms https://www.hindustantimes.com/india/50-hc-judges-related-to-senior-judicial-members-report/story-S8RP2Ir9cEuIN4NewFnvML.html With this background let us see the history of this issue and why it did not reach finality during the finalization of the Constitution of India. The Government of India Act, 1919 provided in Section 101 for the Constitution of High Courts; and the appointment of the Chief Justice and the permanent Judges were in the absolute discretion of the Crown, subject only to the prescribed conditions of eligibility. The tenure of their office, according to Section 102, was dependent entirely on the Crown’s pleasure. Under the Government of India, Act, 1935, appointments of Judges of the Federal Court and the High Courts were at the absolute discretion of the Crown or, in other words, […]Read more
CAN SOCIETY CHARGE MAINTENANCE CHARGES ON AREA WISE BY WHICH LARGER FLAT OWNERS CONTRIBUTE A LESSER AMOUNT THAN SMALLER UNITS?
Nowadays an ultra-vires method of chargability has been adopted by several societies. The committee uses its majority power and misguides the General Body of members and passes the resolution. Chargeability on unit-wise results in higher contribution by small flat owners and lower contribution by larger flat owners. Maintenance charges are the foundation to run the expenses of the society. Now first let us see the provisions in the Act of 1960 and the byelaws. Byelaws are contracts between the management and society. Any breach of byelaws amounts to a breach of contract and breach of trust. Any discrimination made is a serious breach of equal rights granted under the constitution of India. BYE-LAWS PROVISIONS FOR CHARGABILITY OF MAINTENANCE: LEVY OF CHARGES OF THE SOCIETY The contribution to be collected from the Members of the Society, towards outgoing and establishment of its funds, referred to in these bye-laws as ‘the charges’ may be in relation to the following : (i) Property Taxes, (ii) Water Charges, (iii) Common Electricity Charges, (iv) Contribution to Repairs and Maintenance Fund, (v) Expenses on repairs and maintenance of the lifts of the Society, including charges for running the lift. (vi) Contribution to the Sinking Fund, (vii) Service Charges, (Viii) Car Parking Charges, (ix) Interest on the defaulted charges, (x) Repayment of the installment of the loan and interest, (xi) Non-occupancy Charges, (xii) Insurance Charges, (xiii) Lease rent, (xiv) Nonagricultural tax. (xv) Education and Training Fund (xvi) Election Fund (xvii) Any Other Charges. The Service charges of the Society referred to at 64 (vii) above shall include the following: Salaries of the office staff, liftmen, watchmen, malis and any other employees of the Society. Where the Society has independent Office, the property taxes, electricity charges, water charges etc. for the same. Printing, Stationery and Postage, Travelling Allowance and conveyance charges to the staff and the Members of the Committee of the Society. Sitting fees paid to the Members of the Committee of the Society, Subscription to the Education Fund of the Maharashtra Rajya Sahakari Sangh Ltd. Annual Subscription of the Housing Federation and any other co-operative institution to which the Society is affiliated. Entrance fees for affiliation to the Housing Federation and any other cooperative institution. Audit Fees for internal, Statutory and reaudit, if any. Expenses incurred at meetings of the general body, the Committee and the Sub-Committee, if any k. Retainer fees, legal charges, statutory enquiry fees. Common electricity charges. Any other charges approved by the General Body at its Meeting. However such charges should not contradict the provisions of the Act, Rules and Bye-laws of the Society. 66. The Committee shall apportion the Share of each Member towards the charges of the Society on the following basis: Property taxes: As fixed by the Local Authority Water Charges: On the basis of the total number and size of inlets provided in each flat. iii. Expenses on repairs and maintenance of the building/buildings of the Society: At the rate fixed at the general body from time to time, subject to the minimum of 0.75 percent per annum, of the construction cost of each flat for meeting […]Read more
This is a very common dispute. Most of the time Committee decides on whims and fancies. Which is not permissible. If any untoward incident like a fire happens Managing Committee shall be liable for culpability. To start the discussion first we must know the provisions of Byelaws. When Terrace is a common area as per the official plan and agreement with promoter builders it’s a joint and several ownerships. Every society especially as we are discussing housing society is governed by Model Byelaws. They are framed under the provisions of the Maharashtra Cooperative Society Act,1960 which is a Central Act. Now let us see the provisions of the model bye-laws. 3 xxi. “Open terraces” means terraces which are otherwise not in the exclusive possession of any of the Members. 3 xxii “Common Areas and Facilities” means a.the land on which the building is located; b. the foundations, columns, girders, beams, supports, main walls,roofs, halls, corridors, lobbies, stair-ways, lifts / escalators , fire escapes and entrances and exits of the building; c. the basements, cellars, yards, gardens, parking areas undemarcated / demarcated parking slots, and storage spaces; d. the premises for the lodging of janitors or persons employed for the management of the property; e. installations of central services such as power, light, gas, water storage and water heating, water harvesting, pump houses, refrigeration, air conditioning, generators, roof top solar devices, common antennas and mass communication and data sharing devices, f.the elevators, tanks, pumps, motors, fans, compressors, ducts and in general all apparatus and installations existing for common use; g. such community and commercial facilities as may have been provided for; h. all other parts of the property necessary or convenient to its existence, maintenance and safety or normally in common use; Under Bylaw 67 (a) (xiv) members are paying for the maintenance of the terrace being a common facility. What society can do is to, regulate permission to use for functions under bye-law 168. Now moving further a law has been passed in Maharashtra namely the Prevention of Fire and Life Safety Measure Act,2016. Under this law, it’s the owner’s responsibility to keep up fire safety measures. In a matter before the division bench Once a person agrees to the sale/ purchase of a floor in a property, they bind themselves to joint access to common areas, its use, and enjoyment by way of such an agreement. Any obstruction caused that results in deprivation of essential amenities that are water, electricity etc. cannot be permitted and requires immediate intervention to rectify the situation as they have a direct bearing on the right to life of a human” All residents must have access to common areas’ | Delhi News – Times of India (indiatimes.com) In yet another case of Tasneem Dhariwala Bombay High Court Division Bench of Justice S.C Dhamadhikari and Justice Gautam Patel in identical facts held, Such parties cannot be given any discretionary and equitable relief, much less [allowed] to obstruct a public body from performing the statutory duties and ensuring that there is free access to all persons to an area called terrace and, particularly, to take care […]Read more
DOES THE INVESTOR HAVE A REMEDY AGAINST ERRING BUILDERS UNDER REAL ESTATE AND REGULATION ACT ,2016 ( RERA) ?
To answer this query let us understand the provisions of RERA,2016 2(d) “allottee” in relation to a real estate project means the person to whom a plot, apartment or building, as ,he case may be, has been allotted, sold (whether as freehold or leasehold) or otherwise transferred by the promoter, and includes the person who subsequently acquires the said allotment through sale, transfer or otherwise but does not include a person to whom such plot, apartment or building, as the case may be, is given on rent. FILING OF COMPLAINTS WITH THE AUTHORITY OR THE ADJUDICATING OFFICER (1) Any aggrieved person may file a complaint with the Authority or the adjudicating officer, as the case may be, for any violation or contravention of the provisions of this Act or the Rules and Regulations made thereunder against any promoter allottee or real estate agent as the case may be. Explanation.—For the purpose of this sub-section “person” shall include the association of allottees or any voluntary consumer association registered under any law for the time being in force. (2) The form, manner, and fees for filing a complaint under sub-section (1) shall be such as may be specified by regulations. The first of such complaint was filed before Maharashtra RERA authority in COMPLAINT NO: CC006000000000789 Mahesh Parian vs Monarch Solitaire Facts: The Complainant has invested some amount in the residential Project known as ‘monarch Solitaire’ and reserved four apartments in the said Project in 2014. The said project is registered under MahaRERA registration No. P51700012008. The Complainant stated that after reservation of four apartments, Respondent neither gave his invested money back with interest nor is giving the possession of the apartments earmarked for him. Therefore, he prayed that MahaRERA pass an appropriate order for recovery of the principal amount with interest. Observation: documents entered into between parties Tribunal observed that the Complainant and Respondent have signed a ‘Memorandum of Understanding’ on 12s March 2014 from which it is seen that the Complainant is an investor in the said Project and not an allottee. The ‘Memorandum of Understanding’ mentions that when the complainant sells his apartments in the market then the profit from such a sale will be shared between the complainant and respondent in the ratio of 70:3O”. It means that the Complainant has the status of a ‘Co-promoter’ of the Project, as clarified in MahaRERA circular. NOTE: As per records of Maha-RERA this matter was subsequently withdrawn before Appellate Authority. Can draw a hypothesis that it was settled. Next came was M/s. Srushti Sangam Developers Pvt. Ltd vs Sarvapriya Leasing (P) Ltd. APPEAL NO. 000600000001 0557 Facts: The Promoter was developing a project namely Maulick Enclave at Chembur, Mumbai. lt is a redevelopment project consisting of residential premises and shops and offices. promoter and owner of the land had executed registered agreements of redevelopment in the year 2003. As the project was incomplete on 11 May 2017 i.e. on the day of application of RERA Act 2016. promoter has registered a project with [MahaRERA and it bears registration No. P518000J2986.] The investor cum allottee had paid a total sum of Rs.4,53,71,1001 […]Read more
QUESTION AS TO WHETHER CHILDREN FROM A SECOND MARRIAGE OF A HINDU DIED INTESTED WOULD HAVE A SHARE IN THE ANCESTRAL PROPERTY AN ANALYSIS OF JUDGMENT REFERRED TO LARGER BENCH
To understand the question, we must know the law. Preliminary: Point to be considered about Second Marriage is a person is in relation without taking divorce and is not a widower, than what is stated herein is applicable. If Second Marriage is legal than children born out of wedlock have equal rights that of first marriage. Hindu Law: This is pertaining to Hindu succession and testator who died without making a WILL. Such succession is governed by Hindu Succession Act,1956. Who is Hindu? According to Hindu Succession Act it applies to : (a) to any person, who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj; (b) to any person who is a Buddhist, Jaina or Sikh by religion; and (c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed. The Explanation says.—The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:— (a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion; (b) any child, legitimate or illegitimate one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; (c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion. It also applies to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs and included a person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section. Pondicherry: this Act shall apply to the Renouncants of the Union territory of Pondicherry.” [Regulation 7 of 1963, sec. 3 and First Sch. (w.e.f. 1-10-1963).] (a) “agnate”—one person is said to be an “agnate” of another if the two are related by blood or adoption wholly through males; (c) “cognate” — one person is said to be a cognate of another if the two are related by blood or adoption but not wholly through males; (d) the expression “custom” and “usage” signify any rule which having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family: Provided that the rule is certain and not unreasonable or opposed to public policy; and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family; (e) “full blood”, “half blood” and “uterine blood”— (i) two persons are said to be […]Read more