sachin agrawal
17 October 2010 at 17:15
respected sirs,
hello, i am an advocate ,i want judgements of supream cout or madhya pradesh high court about whether state or govt. can take plea of adverse possession against its citizen and if yes than whether govt. can illegally enters their proerty.what about land aquisition act
plz give reply with suitable citation.thanks
plz mail me in my id sachinsdl@yahoo.com
Anonymous
17 October 2010 at 17:12
respected sirs,
hello, i am an advocate ,i want judgements of supream cout or madhya pradesh high court about whether state or govt. can take plea of adverse possession against its citizen and if yes than whether govt. can illegally enters their proerty.what about land aquisition act
plz give reply with suitable citation.thanks
Anonymous
17 October 2010 at 16:49
this is for your information so that other clients can also benefit:
I am the petitioner herein as such I am well acquainted with the facts of the petition.
I humbly submit that this writ petition is filed questioning the constitutional validity of the functioning of the Debts’ Recovery Tribunal under the administrative, regulatory and financial sponsorship of the Ministry of Finance (respondent No.1), in strict violation of the Article 50 of the Constitution of India.
I humbly submit that, legislatures have enacted different legislations for establishment of Tribunals for speedier adjudication of cases and reducing the load of the Hon’ble High Courts and its subordinate courts. The legislature has enacted the Recovery of Debts Due to Banks and Financial Institutions Act (Hereinafter referred to as RDDBFI Act) and establishment of Debt Recovery Tribunals (hereinafter referred to as DRT). The said DRT function under the Judicial officers appointed as per the said RDDBFI Act.
I humbly submit that, while the said Ministry of Finance maintains control of DRT, it is also simultaneously in control and owner of Banks and financial Institutions. The said Ministry of Finance officials are also Board Directors in Banks and Financial Institutions. Thus Ministry of Finance officials are in control of both litigants (i.e. Banks) and adjudicator i.e. the Judicial officers of DRT. Ministry of Finance provides salaries, perks, vehicles, accommodation along with other benefits to the Judicial Officials of Hon DRT. The said Ministry Officials being the employers of the Judicial officers, audit and put Financial Recovery Targets unlike case disposal targets to be achieved by the Judicial Officers of DRT. Ministry of Finance officials meet the Hon DRT judges to review their performance. By suspending Judicial Officers based on complaints the Ministry of Finance has put fear of tenure and reputation in the minds of Judicial Officers. The DRT Judicial officers are hence not given independence and Judicial Freedom to fulfill their constitutional obligations of an unbiased fair trial without fear or favor. In the circumstances, prima facie violation of Constitutional mandate of Article 50 can safely be presumed.
The Legislature has enacted many similar Acts for establishment of different tribunals and appellate tribunals including the National Company Law Tribunal (hereinafter referred to as NCLT) and National Company Law Appellate Tribunal (hereinafter referred to as NCALT) and all the Tribunals and Appellate Tribunals where placed under the administrative control and supervision of their respective departments and concerned Ministries.
In these circumstances, the Question of Judicial Independence, appointments, safety of tenure, termination, funding for salaries, benefits and facilities was sought to be clarified by the Constitutional Bench of the Hon’ble Supreme Court of India. The said questions were answered by the Constitutional Bench of Hon’ble Supreme Court of India in Union of India vs R. Gandhi, President Madras Bar Association and Union of India ( 2010 INDLAW SC 405 = 2010 (4) Supreme 193).
The Hon’ble Supreme Court held (Para 57(ii)) that Parts 1B and 1C of the Companies (Second Amendment) Act 2002 as structured (i.e. without separation of judiciary and executive) in the NCLT and NCALT as unconstitutional. Whereas to make these unconstitutional Sections operational Govt of India is to make suitable amendments as ordered by Hon’ble Supreme Court in the said Constitutional Bench Judgment.
The Hon’ble Supreme Court in the aforesaid judgement had made the following observations and orders:
Para 15 (re: Independence of Judiciary)...Its existence depends however not only on philosophical, ethical or moral aspects but also upon several mundane things- security in tenure, freedom from ordinary monetary worries, freedom from influences and pressures within and without.
Para 20 (Recommendations for better working of Tribunals); Only if continued judicial independence is assured, Tribunals can discharge judicial functions. In order to make such independence a reality, it is fundamental that the members of the Tribunal shall be independent persons, not civil servants. They should resemble courts and not bureaucratic boards. Even the dependence of Tribunals on the sponsoring or parent department for infrastructural facilities or personnel may undermine the independence of Judiciary,
Para 35. ....If Tribunals are to be vested with Judicial power hitherto vested in or exercised by courts, such Tribunals should possess the independence, security and capacity associated with courts.
Para 40......Rule of Law has several facets, one of which is that disputes of citizens will be decided by judges who are independent of the Executive. Another facet of Rule of Law is equality before Law. The essence of equality is that it must be capable of being enforced and adjudicated by an independent judicial forum.
Para 44 (b)... Any Tribunal to which any existing jurisdiction of courts is transferred should also be a Judicial Tribunal......and the members of the Tribunal should have the independence and security of tenure associated with Judicial Tribunals.
Para 55 ......the provision for routine suspension pending enquiry and the lack of any kind of immunity, are aspects which require to be considered and remedied.
Para 56(xii) To maintain independence and security in service, sub-section (3) of section 10FJ and section 10FV should provide that suspension of the President/Chairman or member of a Tribunal can be only with the concurrence of the Chief Justice of India.
Para 56 (xiii)…. The administrative support for all Tribunals should be from the Ministry of Law & Justice. Neither the Tribunals nor its members shall seek or be provided with facilities from the respective sponsoring or parent Ministries or concerned department.
I humbly submit that to prevent the appearance of partiality and to separate Judiciary from Executive branch in the conduct of Judicial Proceedings and decisions in the Tribunals, the Hon’ble Supreme Court decided to give Judicial Freedom by ordering the transfer of all Tribunals to Ministry of Law & Justice.
In pursuance of the decision, the Central Income Tax Tribunal and Central Income Tax Appellate Tribunals have been transferred under Ministry of Justice and Law as per the directions of the Hon’ble Supreme Court vide the said judgment.
But, Ministry of Finance has still not transferred the administrative and supervisory control of Hon DRT to the Ministry of Law & Justice in contempt of the said decision of Hon’ble Constitutional Bench of Supreme Court of India and the Hon’ble DRT Hyderabad are still functioning under the Administrative, Financial and Supervisory control of Ministry of Finance, Banking Division. It is violation of Article 142 of Constitution of India.
bankersrightsforum@gmail.com
Advocate.S.A.Siddiq
17 October 2010 at 15:24
male Hindu dies intestate his property .
Legal heirs are sons, daughters, widow and of the deceased.
Widow of the decease wrote the settlement deed to her daughters (1/3 share) before partition. This settlement is valid or invalid?
shuvadip datta
17 October 2010 at 15:01
my prayer to bank is
To Thursday, October 07, 2010
The Manager
United Bank of India
Meherpur branch: Silchar
Sub: Prayer for reconsideration of reserved price for auction of the property published in the daily news paper” Dainik Jugsankha” dated 07/10/2010 related to loan account A TV cable network and Shuvadip Datta HBL a/c, as because the reserved price quoted by you is very low compare to the market price or its prime value and its totally deprive the borrower interest. Also make a note that I am a non willful defaulter. Simultaneously my earnest prayer to you to sale the ground floor only and 7 katha vacant land as a part sale of immovable secured asset.
Sir,
I like to furnish some facts and figure here in below and my prayer to you for your kind reconsideration. As you know the building valuation for three storied building, which is under your possession and going to be auction as per your advertisement stated on the subject that, you are requested to see the followings.
Sir, building situated in a prime land in silchar, where ex. MP from Rajya Shova residence, and the radio station quarters is adjacent of my land, measuring 3 katha 8 chataak (where market value of per katha that is 720 sq.ft. of land is aprox. 5 to 6 lakh and the total market value of my land aprox.17 to 20 lakh.) and the valuation of a furnished ground floor of 1400 sq, ft, the first floor and second floor measuring 1650 sq.ft each aprox. .e. total square feet of the building are 4700 sq. feet is aprox and the market value (assuming 1500 per sq.ft aprox.) is aprox 70 lakh. Now at the time of sanction of loan your approved valuer provides the value of the building aprox. 57 lakh in the year 2005 when the material cost of the building is half than today’s cost. Now the same building today’s approximate value is more or less 1 core. Where you fix the reserved price for only 37 lakh, which is your approximate recovery amount and it’s a very very low price compare to present market value. Presently your reserved price is 37 lakh for three storied RCC building of 4700 sq. ft. Including 3 katha 8 chataak prime land in Silchar and the price of per sq. ft. stands rs.787 per sq. ft. excluding the cost of land, which is less than fifty percent approximate of market value for per sq.ft RCC building including land.
It is no doubt true that SARFAESI Act and Rules have been framed with a view to expedite the recovery of money due to the Bank. However, since the provisions have vested wide power, on the Authorised Officer/Secured Creditor, it is expected such power should be exercised within strict parameters indicated in the Statute and the Rules. The reserve price will be fixed based on a valuation of the property by to empanelled valuers .Learned counsel for the Bank by relying upon the decision of the Supreme Court, has submitted that in normal circumstances (5) Before effecting sale of the immovable property referred to in sub-rule (1)of rule 9, the authorised officer shall obtain valuation of the property from an approved valuer and in consultation with the secured creditor, fix the reserve price of the property and may sell the whole or any part of such immovable secured asset .
Also make a note that ,the SARFAESI is not applicable to agriculture debts, dues below Rs One lakh; and to non-willful defaulters as per the Act. As you know the total loss of the project for which I took loan , and accordingly I become empty hand , and not paid the your outstanding in time . All the source of income become zero , and myself a non willful defaulter. Keeping all these you are requested to consider my prayer from your part.
SARFAESI Act and the Rules have laid down several procedural safeguards obviously with a view to ensure that there is no abuse of the extra-ordinary power conferred under the Act and the Rules and to provide a modicum of protection to the borrowers or the person whose properties are sold. Now, if bank acts only after their own interest by misusing power under SARFAESI act. and neglected the borrower interest than, it will be miserable for a citizen of Independent India.
Sir, I have only one house where I stayed with my 80 years old mother and two little children with my wife. I have no other shelter. My prayer to you , that if you sale the ground floor (1400 sq.ft) only as per present market price which is more or less RS.2000 per sq. feet , than also you will get 28 lakh . And the rest amount I will arrange cash or selling the vacant land of 7 katha which is under your possession against the same loan. And same may be auction but unfortunately you are not going to sale the same and also not mention in the auction advertisement.
To see the humanity ground, you are requested to reconsider the reserved price and selling the ground floor only , by which you can meet your required amount and save us by giving shelter otherwise I will come under open sky with my mother and children.
I will expect a dignitary behavior respect to bank prestige and tradition. Hope you will co-operate and act accordingly. Thanking you,
Sincerely yours,
(Shuvadip Datta)
Club Road: Silchar
Mob: 9854211888 / 9435071234
Copy to:1. Regional office, for kind information and necessary action.
2. Recovery agent of UBI.
abdul rashid dulloo
17 October 2010 at 14:59
The impugned dispute was between Hindus and Muslims as to title of the said land/property. How far was it correct to give one portion to Hindus, One portion to muslims and one portion again to Hindus? Why could not court Hon'ble judges reach to a conclusion as to which party had the title to land/property involved.
Member (Account Deleted)
17 October 2010 at 12:46
What is the purpose of issuing commission Under order order 39 r. 7. can an application under order 39 r.7 read with order 26 r.p read with section 151 cpc lay after an order of temporary injunction has been passed against the defendant. Here the dispute is pertaing the boudary and the allegation of the plaintiff is that the defendant has encroached an areea of 3'X 238' by constructing boundary wall. the court has restrained the defendant from raising height of the already constructed boundary wall. the defendant is saying that he has not encroached a single inch. therefore if he wants to file an application under order 39 r.4 cant he pray for an inspection under order 39 r 7.
mohan elnoorkar
17 October 2010 at 09:53
the deceased respondent legal representatives not brought on record and the High Court remanded the case to teh lower court.the abatement is effected in High Court and the judgment of remand weather valid without bringing the lrs on records in high court . who has to decided the point of abatement High Court or lower court.can lower court make reference to High court???
Anonymous
17 October 2010 at 08:42
Dear, sir/madam i need a urgent help i am a team leader in hospitality industry i've married before two and half year, my wife is not living with me from starting she use to come and go like relatives, but one fine day before a year she took her car(given to her in marriage), and some other gift items and she also has jwellery given by us along with jwellery of my mother. And now she has logged a case of maintanance in which i'll have to appear for 1st date i would like to add that i have also found a leagal document in which it is mentioned that she was forced by her parents to marry with me as she herself mentioned that she dose'nt wanted to marry me. Please help me out.. I m depressed she is deserting my life...
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