2.1. Whether an Application for drinking water, with an allegation of Water Shortage for last one year, which allegation itself is false, can be converted into a complaint?
2.2. Whether the said Application dated 9-4-01 can be supported by an Affidavit dated 16-1-04?
2.3. Whether once the facts of the Application is not supported by Affidavit, but only a non-est grievance of punishing the petitioner had been repeated in the Affidavit, can the said Affidavit be enclosed with original Application, to cure technical protections objections given to the petitioner?
2.4. Whether an elected member of the public can be removed by a no-confidence motion or by an executive order like this?
2.5. Whether the impugned Order is liable to be vacated, because it is a non speaking order.
3. DECLARATION IN TERMS OF RULE 4(2):-
The Petitioner states that no other petition seeking leave to appeal has been filed by him against the impugned judgement and order.
4. DECLARATION IN TERMS OF RULE 6;-
The annexures produced alongwith the SLP are true copies of the pleadings/ documents which formed part of the records of the case in the Hon’ble Court below against whose order the Leave to Appeal is sought for in this Petition.
5. GROUNDS:- Leave to appeal is sougnt for on the following grounds.
(Here specify the grounds precisely and clearly).
5.1. Because the complaint of the respondent no-5 not supported with an Affidavit is against the Rule 3(i) of UP Panchayat Raj Janch Niyamawali 1997 and according to the Rule 5 that of such complaint is not tenable.
5.2. Because no prior information was given to the petitioner before conducting alleged enquiry against the petitioner which is against the procedure contained in Rule 6(3) of UP Panchayat Raj Niyamawali 1997.
5.3. Because the enquiry was also conducted by Sahayak Zila Panchayat Adhikari, Etah and therein also no irregularity or embazzlement has been found.
5.4. Because without considering above facts and circumstances, the respondent no-2 has passed an order dated 25-2-2004, by which the Administrative and Financial Powers of the petitioner has been seized.
5.5. Because on account of seizure of the village Panchayat Accounts, development works of the village panchayat were adversely affected and therefore on various days, the petitioner moved different applications to authorities concerned praying therein the withdrawal of the said seizure, and return the Accounts books, so that different development works in the village may continue.
5.6. Because all the allegations made in the Show Cause notice and in the impugned order dated 25-2-2004 are wrong and baseless and as such the order passed by the respondent No-2 is not maintainable under the law and is liable to be quashed.
5.7. Because in the Show Cause notice, there had been no allegation of embazzlement or misuse of money. However, in the Order of respondent No-2, which had been impugned before Hon’ble High Court, the punishment is given on those charges. The ISSUES which were not framed and no opportunity was given to the petitioner to lead evidence on those issues, the punishment is given to the petitioner.
5.8. Because once petitioner had not embazzled or misused the fund of the Gram Panchayat, on the false allegation of non utilization of fund, the punishment given is disproportionate and unjusticiable.
5.9. Because the Order which had been impugned before Hon’ble High Court has been passed exercising power U/S 95(i) of the UP Panchayat Raj Act, without complying the mandatory procedure laid down under the same section.
5.10. Because it is well settled principle of law that the Pradhan is an elected member of the Public and his power cannot be taken away on such Technical Ground, especially where there is no charge of embazzlement or misappropriation of the public money.
5.11. Because the initial intention of the respondent No-5 had been a leisure time Application, which became a weapon in the hands of political enemies of the petitioner, to use with ulterior motives, which is illegal.
5.12. Because there were not drinking water shortage and initial cause of action itself does not exist.
5.13. Because the belated Affidavit dt. 16-1-04 is not VERIFIED. The Affidavit does not say whether he got informations stated in the Application dated 9-4-01 from personal knowledge or otherwise. It does not say, whether he believes the contents of Application and Affidavit. It is not made on Oath. Summarily, the document relying which the petitioner had been punished, cannot be used to punish the deponent for False Evidence before an Authority. Thus the punishment given to the petitioner is illegal.
5.14. Because the impugned order passed by Hon’ble High Court is a non-speaking order, being, it did not give reasons for non giving protection of Laws and procedures to the petitioner. A non speaking order is non est in the eyes of law and liable to be vacated.
5.15. Because notwithstanding the fact that, the petitioner is only to co-operate with the enquiry, which look, the petitoner will get a fair chance to justice, the totality of Facts and Circumstances shows, the petitioner will never get justice, thus, the enquiry initiated with ulterior motive need to be quashed, for that purpose, SLP is filed.
5.16. Because the grounds stated at para 6, infra may also kindly be read as part and parcel of this para, which are not being repeated for the sake of brevity.
5.17. Because the Fundamental right under Articles 14 and 21 of the Constitution of India of the Petitioner is violated by not complying with the Rules of Natural Justice.
6. GROUNDS FOR INTERIM RELIEF:-
(here specify briefly the grounds on which interim relief is sought for).
6.1. Because the Political career of the petitioner is in danger, because of this ulterior motive proceedings.
6.2. Because the petitioner had not done any mistake, so as to loose his political career.
6.3. Because the petitioner had not sold his honesty to the respondents so he faced this problems and proceedings. If one of them will become Pradhan, anti-social forces will get a lot of power.
7. MAIN PRAYER:
(Here set out the main prayer)
7.1. That leave to appeal may kindly be allowed, against the Judgement/ Order of Hon’ble High Court of Judicature at Allahabad, dated:..... , passed in Case No. ........., dismissing the Petition, be set aside, in the interests of justice.
7.2. Costs of the SLP and in the High Court may kindly be allowed to the Petitioner.
8. INTERIM RELIEF:
(Here set out the interim prayer)
8.1. This Hon’ble Court may be pleased to initiate an independent inquiry, in the above said matter, in the interest of justice.
8.2. This Hon’ble Court may be pleased to pass an Order, to stay operations of the Order dated ......, passed by the respondent no-2, during the pendency of this SLP, in the interests of justice.
8.3. This Hon’ble Court may be pleased to pass an Order, to stay operations of the impugned order passed by Hon’ble High Court on dated:..... , passed in Case No. ......... dismissing the Petition, during the pendency of this SLP, in the interests of justice.
AND FOR THIS ACT OF KINDNESS THE PETITIONER, FOR EVER DUTY BOUND SHALL PRAY.
New Delhi
Date;-
Mr.ABC.
Petitioner
Through
Advocate on Record for the petitioner
Settled by: (Specify the name of the Advocate in case where the petition is settled by an Advocate).
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IN THE HON’BLE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SLP (C) No. of Year: .....
Mr.ABC ..... PETITIONER
VERSUS
STATE OF U.P. & Ors. ...... RESPONDENTS
AFFIDAVIT
Affidavit of Sh. Abc, Aged ... yrs, son of Mr. ... at present working as the Pradhan, Gram Panchayat, Giraura Vikas Khand, Marahara, Distt.Etah, UTTAR PRADESH, at present in Delhi. I do hereby Solemnly Affirm and declare as under.
1. I am the petitioner in the abovesaid Special Leave Petition (Civil).
2. I read and understood the contents of the accompanying SLP and list of dates and events and material facts, in my vernacular language, which are true and correct to my personal knowledge and belief and I believe them to be true and correct. Para Number ... to ... are informations which had been derived from the file/ Advocate/ Employees, which are believed by the Petitioner/ Appellant to be true and correct. After understanding the same, I signed the SLP.
New Delhi Mr. ABC.
Date: Petitioner/ Appellant/ Deponent.
VERIFICATION:
Verified that the contents of above said Affidavit were read out, understood and signed by me, contents of the same are true and correct to my personal knowledge and belief and I believe them to be true and correct.
New Delhi Mr. ABC.
Date: Petitioner/ Appellant/ Deponent.
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CHAPTER 31 : CONVEYANCING DOCUMENTS :
DRAFTING AND ELEMENTARY PRINCIPLES
Introduction:
A) Regarding Conveyancing Deeds, the Clients do ask doubt, whether those documents can be prepared in a Forged manner, and if they are Registered with the help of Advocates and Registration Office employees, can the Rights be acquired. In answer to that question, the Author gives complete text of the following judgment by Hon’ble Mr. Justice D.P.Wadhwa, in the case Ramesh Dutt Salwan Versus State of Delhi and Others; reported as 1988 Legal Eagle (Delhi High Court) 124 : 1988 RLR 387. Following points may be read from the said case, which is about Will, but equally applicable to all the Conveyance Deeds: (1) Fraud while obtaining certified copy of Will, (2) Statutory law, only a few Points, about Will, (3) “Will” Preparation and Registration, a few Rules: These Rules are common for other Documents also, (4) It is not compulsory to register a Will, (5) Mode of proof about Will: Some of these Rules are applicable to all other Documents also, (6) Registered Will, when not relied by Court: Appreciation of evidence about various aspects of Will and many other documents, (7) Attesting Witness, why not believed, (8) Comparison with Previous “Will” and pendency of Probate case about previous Will, (9) Even when the Sub-Registrar will testify his evidence in Court, that cannot make believe a Forged Will, (10) Not giving benefit to Charity and other relatives is suspicious, (11) Selecting outsiders as Witnesses is suspicious, (12) She was rich to call the Sub-Registrar to her House is another suspicious circumstances, (13) Not being accompanied by children is suspicious, (14) Signature of testator not proved, (15) It is suspected that, False-personation of Testatant had been done in this Will, (16) Duties of Sub-Registrar, the Registered Document is not becoming completely Reliable, and when Registrar can also be a Witness.
B). Court in which to be filed: The another doubt asked is, is it necessary that, the Divorce Case, Probate Case etc should be filed at the District Judge’s Court located at a Distance, and whether neighboring Civil Judge/ Munsiff Court is sufficient, in the form of “Declaration and Mandatory Injunction”. Answer is, it is not possible. In support of that, the following judgment is quoted: Jerbanoo Rustomji Garda v. Pootlamai Manecksha Mehra, AIR 1955 Bombay 447: “Para 1. In our opinion, it is clear that a decision as to the proof of the Will given by any Civil Court can under no circumstances operate as 'res judicata' in probate proceedings taken out in the Probate Court. In a civil suit the Court is only concerned with deciding the rights between the parties. In a Probate Court the position is entirely different. The Probate Court is a Court of conscience and it does not decide rights between parties but it has to deliver a judgment which would become a judgment 'in rem' and this judgment will bind not only the parties before it but the whole world. Therefore, the approach of a Probate Court to the question before it is different from the approach of a Civil Court adjudicating upon the rights between the parties, and this position is made clear by the provisions of Section 41, Evidence Act. It is only a final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant, and such judgment, order or decree has been made conclusive proof with regard to the legal character which it declares. Therefore, a judgment 'in rem' which is the judgment with which Section 41 deals, is a judgment passed by a Court as the exclusive Court dealing with probate matters. A Civil Court dealing with the same question, deciding the same issue, cannot pass a judgment which would bind the world and would constitute a judgment 'in rem'. Therefore, even though the Civil Court here was deciding a question as to the proof of the Will and the codicil have been proved, even so its judgment Will have no binding effect as a judgment 'in rem'. From this it must follow that this decision cannot operate as 'res judicata' and cannot bind the Probate Court. The Probate Court must apply its own mind and must satisfy its own conscience that the Will or the codicil put forward as the last Will or codicil of the deceased is his last Will and codicil. It must be satisfied as to the execution of the document, it must be satisfied as to the testamentary capacity of the deceased, and that satisfaction cannot be influenced or affected by any decision given by any Civil Court although the issue raised was identical.”
C). It means, if two sons of a deceased man can prove a Will and Codicil from a Civil Judge’s Court, the decision is Final only between those two persons. If Brother/ sister of the deceased will come with another Will, these two brothers cannot use the Civil Judge’s judgement against him/ her. Similarly, the Bank, Municipality etc also are bound to neglect the Civil Judge’s decree about the Will and Codicil. However, if the Probate Court (same Court may have Probate Jurisdiction also, and the Case should have been filed in Probate Jurisdiction; or case should be filed at the Probate Court which have territorial jurisdiction) passes a Decree, the said Uncle or Aunt is bound by the same, unless he/ she will go to the same Court to vacate the Probate granted.
D). TO READ JUDGMENTS PROPERLY: Para 40 of the Judgment of Hon’ble High Court of Allahabad in Uma Bose’s case is quoted below, for learning purpose: “Issue No. 10 and 77.-In Chiranji Lal Shri Lal Goenka, JT1993 (2) SC 341 it was held that the High Court has exclusive jurisdiction to decide the genuineness or other otherwise of the Will set up by the defendant. This legal issue was also decided alongwith issue No. 12 by this Court by its order dated 22-4-2000”. Uma Bose in Km. Shobha Bose Versus State Bank of India & Anr., 2006 (4) JCLR 243 (Allahabad). From this, it will be confused whether the Probate case can be filed at High Court also. To clarify that, the Supreme Court’s judgment cited above is given below.
E). Following head notes are copied from 1993 Legal Eagle(Cri) 235, from them it will be clear that, only if the Probate Jurisdiction is conferred upon the High Court, it can decide the Probate Cases:
F). Probate — Jursidiction of the Court of Probate under Succession Act, 1925 is exclusive one and the civil court in original side or the arbitrator or even on consent of the parties will have no jursdiction to adjudicate upon proof or validity of will propounded by the executor and once probate is granted, it will operate as a judgement in remunless reviled — The executor/executrix nominated in the will is a legal representative entitled to represent the estate of the deceased but the heir cannot get any probate before the Probate Court and they are entitled only to resist the claim of executive/executrix of the execution and genuineness of the will. Section 276 of Indian Succession Act, 1925 provides the procedure to obtain probate while Section 273 declares the conclusiveness of probate. The grant of a probate by court of competent jurisdiction is in nature of proceeding in rem and so long as the order remains in force, it is conclusive as to the due execution and validity of the will unless it is duly revoked as per law. It is well settled that a decree passed by the court without jurisdiction or on the ground on which the decree is made which goes to be the root of its jurisdiction or lacks inherent jurisdiction is a quorum non judice and decree would be a nullity and non-est. Therefore, the probate is the exclusive jurisdiction of Probate Court and cannot be adjudicated upon by the civil court even with the consent of the parties. It is a judgement in rem and conclusive and binding not only on the parties but also on the entire world. The-award deprives the parties of statutory right of appeal provided under Section 299. In such circumstances held that the arbitrator cannot proceed with the probate suit to decide the dispute in issues and the only course open to the High Court would be to proceed with the probate and request the arbitrator not to proceed with the said issues. Chiranjilal Shrilal Goenka (Deceased) Through Lrs. Versus Jasjit Singh, 1993 (2) JT SC 341 : 1993 (2) SCR 454 : 1993 Legal Eagle(Cri) 235.
G). INDIAN SUCCESSION ACT, 1925 — Sections 211(1), 217, 222, 223, 227, 273, 276, 280, 294, 295 and 299 — Grant of probate — Jurisdiction to grant probate is exclusive regarding which civil courts in original side or Arbitrator have no jurisdiction — Jurisdiction to adjudicate upon the proof or the validity of the will propounded by the executor, cannot be conferred even with the consent of the parties — A person named as Executor in the Will, will be entitle to grant probate and not his legal heirs — The executor, administrator or assigns or persons acquiring interest by devolution under Order 22, Rule 10 of C.P.C. or legatee under a Will are legal representatives of the deceased — And under Hindu Succession Act, not only that class-I heirs under Section 8 read with Schedule but also the the executor of the Will of the deceased testator are legal representative of the deceased. Chiranjilal Shrilal Goenka (Deceased) Through Lrs. Versus Jasjit Singh, 1993 (2) JT SC 341 : 1993 (2) SCR 454 : 1993 Legal Eagle(Cri) 235.
H). Civil Procedure Code, 1908 — Section 33 — Decree passed without jurisdiction is a nullity — The question of its being nullity and invalidity can be raised at any stage even at the executing stage — A decree passed by a court without jurisdiction on the subject matter on the grounds on which the decree made which goes to the route of its jurisdiction or lacks inherent jurisdiction — A decree passed by such a court is a nullity and is non est — The defect of jurisdiction restricts at the very authority of the court to pass decree which cannot be cured by consent or waiver of the party — Thus, the probate court alone has exclusive jurisdiction and the civil court on original side or the arbitrator does not get jurisdiction even if consented to by the parties, to adjudicate upon the proof of validity of the will propounded by the executor/executrix, the applicant — The consent of the parties to refer the dispute for arbitration cannot confer jurisdiction nor an estoppel against the statute. HELD: It is settled law that a decree passed by a court without jurisdiction of the subject matter of on the grounds on which the decree made which goes to the route of its jurisdiction or lacks inherent jurisdiction is a ‘coram non judice’ and the decree passed by such a court is nullity. Persuant to the contract providing arbitration clause, the very appointment of arbitration with consent of both parties was void being without jurisdiction. The arbitrator cannot proceed with the probate suit to decide the dispute. Under these circumstances the only course open in the case is that the High Court is requested to proceed with probate suit pending on the probate jurisdiction of the High Court and decide the same expeditiously. Till then the arbitrator is requested not to decide the said issues. Chiranjilal Shrilal Goenka (Deceased) Through Lrs. Versus Jasjit Singh, 1993 (2) JT SC 341 : 1993 (2) SCR 454 : 1993 Legal Eagle(Cri) 235.
I). Another point common to all Conveyancing Documents is, whether a Forged document can be prepared in forged look-alike handwriting, to be relied by Court. The answer is, Court will seek proof of Truth of Facts also, kindly read:- In paragraph 16 of Ramji Dayawala and Sons (R) Ltd., AIR 1981 SC 2085, the Supreme Court cautioned that mere proof of the handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document. If the truth of the facts stated in a document is in issue; the proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue. However, it was further held in the same paragraph that once the receipt of the letter and the cable are admitted or proved coupled with the fact that even after the dispute arose and before the suit in this case was filed, in the correspondence that ensued between the parties, the respondent did not make any overt or covert reference to the arbitration, agreement and utter failure of the respondent to reply to the letter and cable controverting the averments made therein would unmistakably establish the truth of the averments made in the letter. Para 33 of In re: Uma Bose in Km. Shobha Bose Versus State Bank of India & Anr., 2006 (4) JCLR 243 (Allahabad).
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1. Conveyancing documents are prepared for every type of properties. Whether land and building, services of employer or employee, services of a private employment agent/ exchange with the prospective employers and employees: every such type of documents are conveyancing.
2. To give a simple definition, without quoting from any other books written on this subject is: Conveyancing means, where both the parties to a transaction had mutually decided their Rights and Duties and want to reduce that into writing, in a legally provable format. The speciality of these documents is, they are last and final, unless put into judicial scrutiny. Some times, without preparing any of these documents also, through the Law of Limitation, the relations Rights and Duties are determined. If a document will determine the Rights and Duties of the parties (“parties inter-se”), that is called Conveyancing. On the other hand, if a person make claims from the opposite party, and it is for the Court or Arbitrator to decide both the parties Rights and Duties, that is a Pleading. The document called WILL also be told to be Conveyancing, however it is not conveying any thing to others. It is not necessary that, other conveyancing documents require a litigation to enforce that. However, normally WILL requires a litigation against the “General Public” and Court decree also should be obtained, prior to getting the Rights on the Properties Conveyed to the beneficiary.
3. In real life, merely by preparing a document like this, an Ad