I rendered my legal opinion to one of my office clients today.
The first of such was
a proprietor of a crusher factory which was an erstwhile partnership
concern. The rest of the partners sold it to my client following some differences
that erupted among them. The factory is a new unit as opposed to the running
unit. The Tamil Nadu Pollution Control Board passed an G.O laying guidelines with
the aim to regulate the operation of such crusher factories in line with the
pollution related laws.
One of the conditions is that
each crusher factory should be of distance 1km away from each other, just like,
the condition which mandates 500 m distance between a crusher factory
and a National Highway. The client's factory was 1.2 km away from Factory A
which was built in the year 2007. The Factory B was built in the years 2008 and
was 500 m away from the factory of the Client's which was built in the year
2008 much later to the other two factories.
The issue was whether the
client's factory built in violation of the TNPCB condition since the distance
between itself and the Factory B was within 1 km.
It is not so because, the
Factory B itself in not a legally built one. This is because the distance
between Factory A and B was less than 1km and Factory was a subsequently built
one, which, therefore, is liable to be shut down for violating the explicit
conditions of the TNPCB. Factory C was built recently and is located more than
a kilo meter away from Factory A which has satified the conditions of TNPCB.
Further, In Parvathiammal
granites, while discussing the issue of distance between the crushers, Court
found that petitioenr factory was located within a km of distacen from the
respondent factory when the linear
measurment was made but when scientifically calculated,
a rock separating the two factories also should have been included and in
which case the distance would be more than a KM. For that reason the petitioner
factory was held to have not violated any guidelines laid down by TNPCB.
The case might have been
helpful to the case in hand only if
a) the Factory A is at a
distance less than a KM away from Factory C because if is so, the actual rock
which is in existence between the factories might have contributed to case in
hand
b) there was a rock dividing
factories C and B but it is not the case.
Second Client was more
interesting though he had only vague idea of the stage of his case.
He was the defendant in a suit.
The plaintiff preferred an I.A for restraining the defendants not to alienate
the property till the suit is disposed off. The I.A was dismissed by the Trail
Court and so as agaisnt which an appeal was prefeered and the same was alloweed
by the Distict Appellate Court, Ranipet which also directed the Munsif COurt,
SHolingur to dispose off the case within 6 months. Accordingly the suit was
decreed and was disposed off.
The client was of the
impresseion that the I.A. preferred in the suit is tantamount to First appeal
and hence he had come here to prefer a second appeal.
I explained the whole situation
and advised him to go agian before the Ranipet District Court since it was only
agianst a I.A an appeal was prefeered and not against the whole suit.
Thirdly a wakf matter was
brought up.
The property was given to one
Md. Ismail as inam from the British in the year 1917. However a partition deed
dated 30.4.1971 reflects the property originally belong to one Md. khadir whose
left behing his legal heirs one amongs which was Md. Isamil. The other legal
heirs were either dead or abondened their interest in theproperty, this Md.
Ismail came into occupation and possession exclusily and was in enjoyment of
the proeprty since his death in 1968 leaving behing his total 5 legal heirs (4
sons and 1 dauther). the client belongs to the branch of the dauther.
while so one of the legal heirs
of Md.Ismail, for obvious reasons, appointed one benami to take care of the
entire property. the benami however, to the much contrary to the expectation of
the legal heirs of Md. Ismail, mutates the record and obtains a patta for
the property in his name in mid-1980s.
Having found the difficulty in
recovering hte possession of their own property from the benami, the legal
heris expect our client and his wife, executed a power of attorney in favour of
a 3rd party who promised to take care of the benami by forceful eviction.
however the amount he paid as
compensation for the land was meagre 2 lakhs whereas the worht of the land is
crores. hecne our client refused to sign the powere of attorney
Issue - how to recover the land
from benami
- whether the power of attorny in favour of 3rd party is valid?
in so far as the benami is
concerned, it can shown as if the benami was given possession of hte land based
on sympathy groudns and later the benami is attmeptiong to shipon off all the
benefit
Two, the power of attoney is
not valid to the extent of the share of the client's wife who is one amongst
the sharers.
