ILLEGAL AND UNAUTHORISED CONSTRUCTION AFFECT FUNDAMENTAL AND CONSTITUTIONAL RIGHTS, COURT ORDERED DEMOLITION OF ILLEGAL AND UNAUTHORISED CONSTRUCTION

The Supreme Court in a matter relating to the illegal and unauthorized constructions of buildings and other structures. Said, this Court has repeatedly emphasized the importance of planned development of the cities and either approved the orders passed by the High Court or itself gave directions for demolition of illegal constructions.

In Dipak Kumar Mukherjee Vs Kolkata Municipal Corporation & others, the Supreme Court emphasized that the illegal and unauthorized constructions of buildings and other structure not only violate the municipal laws and the concept of planned development of the particular area but also affect various fundamental and constitutional rights of other persons. The common man feels cheated when he finds that those making illegal and unauthorized constructions are supported by the people entrusted with the duty of preparing and executing master plan/development plan/zonal plan. The reports of demolition of hutments and jhuggi jhopris belonging to poor and disadvantaged section of the society frequently appear in the print media but one seldom gets to read about the demolition of illegal/unauthorisedly constructed multi-storied structure raised by economically affluent people. The failure of the state apparatus to take prompt action to demolish such illegal constructions has convinced the citizen that planning laws are enforced only against poor and all compromises are made by the State machinery when it is required to deal with those who have money power or unholy nexus with the power corridors.

The appellant a resident of Kolkata. Succeeded before the learned single judge of the Calcutta High Court to order the demolition of unauthorized construction of multi-storied building by respondent No.7 (construction Co.) on the plot owned by the respondent No.8 but could not persuade the division bench to affirm the order of the learned single judge and consequently approached the Supreme Court.

The Supreme Court allowed the appeal and impugned judgement was set aside. The Court ordered demolition of the unauthorized constructions. A cost of Rs.25,00,000/- imposed for violating the sanctioned plan and continuance of illegal constructions despite ‘stop work notice’.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

MATTERS BETWEEN EMPLOYER AND EMPLOYEE AND INCOME TAX RETURNS DETAILS ARE PERSONAL INFORMATION CANNOT BE DISCLOSED UNDER THE RTI ACT

While the Supreme Court deciding the question whether the Central Information Commissioner acting under the Right to Information Act, 2005 (RTI Act) was right in denying information regarding the third respondent’s personal matters pertaining to his service career  and also denying the details of his assets and liabilities, movable and immovable properties on the ground that the information sought for was qualified to be personal information as defined in clauses (j) of section 8 (1) of the RTI Act, in Girish Ramchandra Deshpande Vs Central Information Commissioner & others held

The performance of an employee/officer in an organization is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression “personal information” the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual.

It was further held, the details disclosed by a person in his income tax return are “personal information” which stand exempted from disclosure, unless involves a larger public interest.

In the present case the petitioner had sought for copies of all memos, show cause notices and censure/punishment awarded to the third respondent from his employer and also details viz. movable and immovable properties and also the details of his investments, lending and borrowing from Banks and other financial institutions. Further, he has also sought for the details of gifts stated to have accepted by the third respondent, his family members and friends and relatives at the marriage of his son. The Supreme Court dismissed the petition on the view that the petitioner has not succeeded in establishing that the information sought for is for the larger public interest.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

IN CHILD CUSTODY AND VISITATION RIGHTS MATTER, THE DESIRE, INTEREST AND WELFARE IS PARAMOUNT IMPORTANCE

While the Supreme Court deciding the question with regard to the custody of the children and visitation rights, if any, in Gaytri Bajaj Vs Jiten Bhalla  observed:

An order of custody of minor children either under the provisions of the Guardians and Wards Act, 1890 or Hindu Minority and Guardianship Act, 1956 is required to be made by the Court treating the interest and welfare of the minor to be of paramount importance. It is not the better right of the either parent that would require adjudication while deciding their entitlement to custody. The desire of the child coupled with the availability of a conducive and appropriate environment for proper upbringing together with the ability and means of the concerned parent to take care of the child are some of the relevant factors that have to be taken into account by the Court while deciding the issue of custody of a minor. The desire, interest and welfare of the minor which is the crucial and ultimate consideration that must guide the determination required to be made by the Court.

The appeal was sought by the mother of two minor girls against the order of the Delhi High Court stating that she abandoned the visitation rights due to fraud and deceit practiced on her. The Supreme Court after having a personal interaction with children, to bring the issue with regard to custody and visitation rights to a satisfactory conclusion. Held, both appear to be happy in the company of their father who also appears to be in a position to look after them. The children having expressed their reluctance to go with the mother, even for a short duration of time.

The Supreme Court came to a conclusion that the children would continue to remain in the custody of their father until they attain the age of majority. Denied any visitation right to the mother and thereby upholding the order of the High Court.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

STUDENTS NOT TO JOIN, THE EDUCATION INSTITUTION WITHOUT RECOGNITION AND AFFILIATION

The institution that is engaged or interested in getting involved in imparting a course for training has to obey the command of law in letter and spirit. There cannot be any deviation. But, unfortunately, some of the institutions flagrantly violate the norms with adamantine audacity and seek the indulgence of the court either in the name of mercy or sympathy for the students or financial constraint of the institution or they have been inappropriately treated by the statutory regulatory bodies. None of this ground justice deviation. The Supreme Court said the High Court putting the blame on the statutory authority has granted relief to the respondent institution which is impermissible.

The Supreme Court in National Council for Teacher Education & Another Vs Venus Public Education Society & Others held:

“that without recognition from the NCTE and affiliation from the university/examining body, the educational institution cannot admit the students. An educational institution is expected to be aware of the law. The students who take admission are not young in age. They are graduates. They are expected to enquire whether the institution has recognition and affiliation. If we allow ourselves to say so, the institution had given admission in a nonchalant manner. Possibly, its functionaries harboured the idea that they had an incomparable fertile mind. The students who had taken admission possibly immersed with the idea that ignorance is a bliss. It is also necessary to state that the institution had the anxious enthusiasm to commercialize education and earn money forgetting the factum that such a attitude leads to a disaster. The students exhibited tremendous anxiety to get a degree without bothering for a moment whether their effort, if any, had the sanctity of law. Such attitudes only bring nemesis. It would not be wrong to say that this is not a case which put the institution or the student to choose between Scylla and charybdis. On the contrary, both of them were expected to be Argus-eyed. The basic motto should have been “transparency”. Unfortunately, the institution betrayed the trust of the students and the students, in a way, atrophied their intelligence. The institution decidedly exhibited characteristics of carelessness. It seems that they had forgotten that they are accountable to law. The students, while thinking “vision of hope”, chose to play possum. The law does not countenance either of the ideas. Hence, the plea propounded with anxiety, vehemence and desperation on behalf of the appellant is not acceptable and, accordingly we unhesitatingly repel the same”.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

CONTEMPT OF COURT AGAINST A WOMAN FOR BREACHING UNDERTAKING TO DIVORCE

The Delhi High Court issued the contempt of court to the women for breaching her undertaking to a family Court to divorce her husband with mutual consent.

A contempt petition was filed under the provisions of the Contempt of Courts Act, 1971 by the petitioner (husband) to take action against the respondent (wife) for withdrawing from her undertaking given the Court, at the time of filing of the petition for mutual divorce, in the matrimonial Court.

The parties negotiated between themselves and with the intervention of the family friends, both arrived at a Memorandum of Understanding (MOU). They agreed to seek divorce by mutual consent. The petitioner (husband) paid a lumpsum of rupees Seven Crores to the respondent (wife), as a one time settlement in lieu of all the claims of the wife towards maintenance, alimony, istridhan, jewellery etc. The husband agreed to pay Rupees One crore Fifty Lakhs at the time of filing of the divorce petition to seek divorce by mutual consent and the balance amount was to be paid at the time of filing of the second motion. The wife also agreed to make a statement before the court in support of the divorce petition.

The petitioner (husband) said that his wife did not come forward to make a statement before the matrimonial Court on the second motion to obtain a divorce.

The Delhi High Court in Avneesh Sood Vs Tithi Sood  held:

“I, therefore, hold the respondent guilty of contempt of Court as she has breached her undertaking given to the learned ADJ-01, New Delhi on 14.09.2010 in the first motion divorce proceedings under section 13-B of the Hindu Marriage Act. The agreement arrived at between the parties not only deals with the aspect of divorce, to be obtained by mutual consent, but also deals with the aspect of custody/visitation rights of the minor child. Admittedly, the respondent has breached the said arrangement……”

The Court issued the contempt notice to the wife and was subjected to costs which was quantified at Rupees One Lakhs to be paid to the petitioner (husband).  

Prepared by: S. Hemanth

Advocate at Hemanth & Associates