Son can divorce wife if she tries to separate him from aged parents

The Supreme Court of India, has held, in recent judgment,on OCTOBER 06, 2016.

A Hindu son can divorce his wife for the cruelty of trying to pry him away from his “pious obligation” to live with his aged parents and provide shelter to them.

Insisting her husband to live separately from his parents is a western thought alien to our culture and ethos, observed Justice Anil R.Dave, who wrote the judgment.

The court was confirming the divorce of a Karnataka-based couple in a recent judgment. Married in 1992, the lower court granted the husband divorce after he alleged cruelty on his wife’s part. He quoted instances of her constant suspicions about him having illegal affairs with a maid. It was later found that no such maid as described by the wife ever worked in the couple’s home

In another instance, the apex court found that the wife had attempted to commit suicide but was rescued in the nick of time. She wanted to separate the man from his parents who were dependent on his income.

However, the High Court had set aside the decree of divorce, saying the wife had a “legitimate expectation” to see her husband’s income used for her and not his family members.

Shuddering at the thought of the legal tangles in which the “poor husband” would have found himself caught in had she succeeded in committing suicide, the Supreme Court concluded: “The mere idea with regard to facing legal consequences would put a husband under tremendous stress.”

In India, generally people do not subscribe to the western thought, where, upon getting married or attaining majority, the son gets separated from the family, the court said. In normal circumstances, a wife is expected to be with the family of the husband after the marriage.

“She becomes integral to and forms part of the family of the husband and normally without any justifiable strong reason, she would never insist that her husband should get separated from the family and live only with her,” Justice Dave observed.

“It is not a common practice or desirable culture for a Hindu son in India to get separated from his parents on getting married at the instance of the wife, especially when the son is the only earning member in the family. A son, brought up and given education by his parents, has a moral and legal obligation to take care and maintain the parents, when they become old and when they have either no income or have a meagre income,” Justice Dave wrote.

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3253 OF 2008
NARENDRA … APPELLANT
VERSUS
K. MEENA … RESPONDENT
.J. (ANIL R. DAVE)
J. (L. NAGESWARA RAO)
NEW DELHI
OCTOBER 06, 2016.

Why do we abolish talaq?

Recently there is much uproar regarding triple talaq. A communalist party which also claims to be nationalist, start saying that talaq is discrimination against Muslim women. Muslim women must get equal treatment like Hindu women. In Hindu divorce system, one has to go through court. It is a tedious partial and tiresome process. It takes 20 years or more to get a divorce. In this forum, there are many instances in support of this statement. Hence I don’t prolong the discussion by giving examples. On the contrarily, in the Muslim divorce system, divorce is much quicker.  Is it a discrimination to get a quick divorce in this jet-set life of today?  No, they say. The real problem lies elsewhere.

The Supreme Court has issued an order that triple talaq will not be accepted in this country as a valid means of divorce. Why?  The pundits say that it ignores the rights of Muslim women. In reality, Muslim women are given divorce and are thrown out into the road. Their rights on divorce are neglected. Oh! This is the real problem. But, hey, isn’t there any law protecting Muslim women’s rights? Oh, yes, ofcourse.  The following law takes care of the rights of Muslim women on divorce:

The Muslim women (protection of rights on divorce) act and rules, 1986[act no.25 of 1986].the preamble of the act reads: 

This act protects the rights of Muslim women who have been divorced by or have obtained divorce from, their husband and to provide for matters connected therewith or incidental thereto.

 

Now how do I come to know about this act? Well, it is in the syllabi of my law school under the heading: Muslim laws. I have studied it in 3rd or 4th SEM. Why then our almighty govt. does not know it?

 

But what about quick and sudden divorce? Muslim women cannot say talaq to men. Really? But there is a law which actually clarify the meaning of sharia law relating to divorce. The law is:

The dissolution of Muslim marriage act, 1939 [act no.8 of 1939]. The preamble reads: an act to consolidate and clarify the provision of Muslim law relating to suits of dissolution of marriage by women married under  Muslim law and to remove doubts as to the effect of the renunciation of Islam by a married Muslim woman on her marriage tie.

Section 2 of the said act gives ample grounds to Muslim women for divorce. Yea, Muslim women can give talaq to their feudal husband according to Islam. Again section 5 of the said act protect their right of dower on divorce. Well then where is the discrimination ?

Again how do I know? I must be very good at legal research. No. again it is in my legal curricula. These curricula is an all India legal curricula followed by all universities of India.

Now pundits may say that in reality these laws are not followed. But who’s responsibility it is then? Isn’t it police’s job to enforce these laws ? will you change the law because law is not enforced properly? No.

Accused can directly approach the High Court and Sessions Court for regular Bail, not necessary that accused should apply to the Magistrate first; SC

In a path-breaking Judgment, a two-Judge Bench of the Supreme Court has held that there are no restrictions on the High Court or Sessions Court to entertain an application for bail, provided, accused is in custody. The judgment has put an to end the decades old practice of first filing a regular Bail Application before a Magistrate having jurisdiction, and get it rejected for the purpose of approaching the Sessions Court or High Court for bail.

The case arises out of a Special Leave Petition seeking regular bail under Section 439 of the Code of Criminal Procedure (CrPC), which was declined by the High Court of Mumbai, with the observations that it is the Magistrate whose jurisdiction has necessarily to be invoked and not of the High Court or the Sessions Judge. The prayer by the accused before the High Court was to permit him to surrender to its jurisdiction, and thus by offering himself to custody, seeking grant of regular bail under Section 439 of the Code, on such terms and conditions as may be deemed fit and proper. According to the Single Judge, when the Accused’s plea to surrender before the Court is accepted and he is assumed to be in its custody, the police would be deprived of getting his custody, which is not contemplated by law, and thus, the Accused “is required to be arrested or otherwise he has to surrender before the Court which can send him to remand either to the police custody or to the Magisterial custody and this can only be done under Section 167 of CrPC by the Magistrate and that order cannot be passed at the High Court level.”

While setting aside the High Court Judgement,  the Supreme Court has  elaborated the scope of Section 437 and 439 of Cr.P.C.  In Paragraph No-11, it holds; “Some poignant particulars of Section 437 CrPC may be pinpointed. First, whilst Section 497(1) of the old Code alluded to an accused being “brought before a Court”, the present provision postulates the accused being “brought before a Court other than the High Court or a Court of Session” in respect of the commission of any non-bailable offence. As observed in Gurcharan Singh vs State (1978) 1 SCC 118, there is no provision in the CrPC dealing with the production of an accused before the Court of Session or the High Court. But it must also be immediately noted that no provision categorically prohibits the production of an accused before either of these Courts.”

“The difference of language manifests the sublime differentiation in the two provisions, and, therefore, there is no justification in giving the word ‘custody’ the same or closely similar meaning and content as arrest or detention. Furthermore, while Section 437 severally curtails the power of the Magistrate to grant bail in context of the commission of non-bailable offences punishable with death or imprisonment for life, the two higher Courts have only the procedural requirement of giving notice of the Bail application to the Public Prosecutor, which requirement is also ignorable if circumstances so demand. The regimes regulating the powers of the Magistrate on the one hand and the two superior Courts are decidedly and intentionally not identical, but vitally and drastically dissimilar. Indeed, the only complicity that can be contemplated is the conundrum of ‘Committal of cases to the Court of Session’ because of a possible hiatus created by the CrPC. Meaning of Custody:

"When is a person in custody, within the meaning of Section 439 CrPC?

When he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself to the court’s jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold of an officer with coercive power is in custody for the purpose of Section 439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibblings and hide-and-seek niceties sometimes heard in court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubieties are unfair evasions of the straightforwardness of the law."

The Court comes to a conclusion that since the Magistrate is completely barred from granting bail to a person accused even of an offence punishable by death or imprisonment for life, a Superior Court such as Court of Session, should not be incapacitated from considering a bail application especially keeping in perspective that its powers are comparatively unfettered under Section 439 of the CrPC.

The Court gave an extended meaning of the word “Custody” relying on  Justice Krishna Iyer, who authored Niranjan Singh v. Prabhakar Rajaram Kharote and  quoting (SCC p. 563, para 9) “He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the court and submits to its directions.” If the third sentence of para 48 is discordant to Niranjan Singh, the view of the coordinate Bench of earlier vintage must prevail, and this discipline demands and constrains us also to adhere to Niranjan Singh; ergo, we reiterate that a person is in custody no sooner he surrenders before the police or before the appropriate Court.”

Regarding the power of Sessions Court the Court proceeds as follows; “We are unable to locate any provision in the CrPC which prohibits an accused from moving the Court of Session for such a relief except, theoretically, Section 193 which also only prohibits it from taking cognizance of an offence as a Court of original jurisdiction. This embargo does not prohibit the Court of Session from adjudicating upon a plea for bail”.

It appears to us that till the committal of case to the Court of Session, Section 439 can be invoked for the purpose of pleading for bail. If administrative difficulties are encountered, such as, where there are several Additional Session Judges, they can be overcome by enabling the accused to move the Sessions Judge, or by further empowering the Additional Sessions Judge hearing other Bail Applications whether post committal or as the Appellate Court, to also entertain Bail Applications at the pre-committal stage.

Dealing with the issue on the touchstone of Constitution, the Court holds ; (Para- 7) “ Article 21 of the Constitution states that no person shall be deprived of his life or personal liberty except according to procedure established by law. We are immediately reminded of three sentences from the Constitution Bench decision in P.S.R. Sadhanantham vs Arunachalam , which we appreciate as poetry in prose – “Article 21, in its sublime brevity, guards human liberty by insisting on the prescription of procedure established by law, not fiat as sine qua non for deprivation of personal freedom.

And those procedures so established must be fair, not fanciful, nor formal nor flimsy, as laid down in Maneka Gandhi case. So, it is axiomatic that our Constitutional jurisprudence mandates the State not to deprive a person of his personal liberty without adherence to fair procedure laid down by law”. Therefore, it seems to us that constriction or curtailment of personal liberty cannot be justified by a conjectural dialectic. The only restriction allowed as a general principle of law common to all legal systems is the period of 24 hours post-arrest on the expiry of which an accused must mandatorily be produced in a Court so that his remand or bail can be judicially considered.

The judgement is authored by Justice Vikramajit Sen, sitting along with Justice K S Radhakrishnan.

Filling up blank cheque may not always amount to material alteration: Gujarat High Court

The Gujarat High Court in the recent landmark decision in Nikhil P Gandhi v. State of Gujarat has struck down the contention that when a signed blank cheque leaf is handed over to the other party by way of security, the same can never be filled up and if it is filled up it would amount to a material alteration within the meaning of Section 87 of the  Negotiable Instruments Act, 1882 (hereinafter referred to as the “Act”).

The matter involved the issue of a blank cheque provided by the accused company, Gujarat Pipavav Port Limited to M/s. Sharda Steel Corporation, the complainant, as a security deposit for carrying out supply of Steel, Cement, etc. for the purpose of the construction of a port.

In the course of the business, a dispute arose between the accused company and the complainant firm. The complainant firm preferred three Special Civil Suits Nos. 35 of 2000, 36 of 2000 and 37 of 2000 in the Court of the Civil Judge, Senior Division, Amreli, for recovery of a certain amount raised through bills. Whilst the Civil Suits were still pending, in the year 2008 with the consent of the parties, the learned Civil Judge passed an order in the Special Civil Suit No. 36 of 2000 appointing M/s. Chhajed & Doshi Company, Chartered Accountants, as a mediator for the purpose of settling the accounts.

M/s. Chhajed & Doshi Company submitted its report dated 28th April 2009, according to which, the accused company owes a sum of Rs.15,82,23,865/- (Rupees Fifteen Crore Eighty Two Lac Twenty Three Thousand Eight Hundred Sixty Five Only) to the complainant firm. The complainant firm, thereafter, started demanding the amount from the accused company. There was lot of correspondence between the complainant and the accused company between 2010 and 2013 in that regard. Ultimately, the complainant decided to fill up the blank signed cheque, which was drawn by the then Managing Director on behalf of the company as a security. The cheque was filled up on 28th March 2013. The cheque was dishonoured by the bank with an endorsement of “account closed”.

The complainant, thereafter, issued a statutory notice and called upon the company to make good the amount mentioned in the cheque. The drawer of the cheque gave a reply denying his liability. The complainant, thereafter, proceeded to file a criminal complaint in the Court of the learned Chief Judicial Magistrate at Mahuva. Thereafter, applications were filed by the company and the directors for quashing of the criminal proceedings initiated for the offence punishable under Section 138 of the Act.

After hearing the arguments and the authorities cited by both the parties, Hon’ble Justice J.B. Pardiwala rightly observed that such circumstances would depend upon the facts of each case.

The Court observed that when a person takes a bill in an incomplete  form, he cannot be a bonafide holder for value since it can only be said  that he has taken a piece of blank paper and not a bill and that he can take it as a bill only under the authority given to his transferor. Section 20  of  the  Act would make it clear that there can be  no  material alteration of a cheque leaf only for the reason that it was subsequently filled up. But at the same time it cannot be said that whenever a signed blank cheque leaf is given, it gives authority to the holder to fill up the same according to his whims and fancies.

There may be instances where an implied authority is given to the person, at the time of entrusting a signed blank cheque containing the signature of the drawer of the cheque, to fill the columns therein. If   a   principal   or   employer   deputes   his   agent   or   employee   to purchase an article and if the dealer fills up that signed blank cheque leaf showing the exact amount covered by the bill then it cannot be said that what was handed over by the  drawer of the cheque is only a signed blank cheque leaf. In such cases an implied authority to the trader/seller of the article to fill up the cheque leaf can certainly be inferred.

The contention that when a signed blank cheque leaf  is handed over, it can never be filled up and that if it is filled up it would  amount to a material alteration within the meaning of using Section 87  of   the  Act,   does   not   stand   to   rhyme   or   reason.

The collective reading of the various provisions of the Act show that it is possible for the drawer of a cheque to give a blank cheque signed to the payee and consent either impliedly or expressly to the said cheque being filled up at a subsequent point in time and present the same for payment by  the “drawee”.

Finally, the Court held that whenever a blank cheque or post-dated cheque is issued, a trust is reposed that the cheque will be filled in or used according to the understanding or agreement between the parties. If there is a prima facie reason to believe that the said trust is not honoured, then the continuation of prosecution under Section 138 of the Act would be abuse of the process of law.

Cauvery imbroglio!

State of Karnataka obviously failed in its duty to follow the S C judgement in terms of Art 141 of the Constitution of India.

CM of Karnataka talks irrelevantly, so too many political leaders of Karnataka like even Deva Gowda, Kumaraswamy, Gowda, Sadananda Gowda, so many others ministers, without rightly protecting the properties of any which happened to be there in the state during the agitation, obviously their pronouncements were literally 'contempt of court' based actions, they need be pulled up by the Apex Court directions.

Fact is 'vandalism' was perpetrated by the goons having allegiance to 'dons' in that state; 'dons' need commotions normally to perpetuate their 'ends'; but all the ministers were talking irrelevantly, not realizing that the government cannot 'take sides' in any issues but it has to be 'impartial' as far as rule of law is concerned.

One knows since 1924 on after, then British Madras government by a treaty with Mysore government, took to sharing the Cavery water as per then prevailing conditions, after all 'rains' can never occur as per one's wishes, but that do take place as per the natures dispensation, that is a realized fact even then, as no Man can control Nature, a well known universal truth.

How a modern Nature could change to one's own wishes, any 'rational man need realize.

So many River water commissions surfaced , and yet nothing rational is resolved. Commissions probably did not realize the need of suggesting changes in 'crop patterns' paradigms depending upon availability of water resources.

British Madras government properly understood perennial rivers can be harnessed that way British built Krishna barrage, and the Bukkingham Canal system that provided Krishna waters for irrigation right from Bezawada then till Madras city besides proving drinking water to city then. If British could think could we not think ? Yes Dr. K L Rao suggested the inter connecting the perennial rivers all over India, that cost was then estimated to be around Rs.10,000 crores in 1970s; but federal government under Smt Indira Gandhi could not raise thus that idea was shelved.

Then governments could think but till today no agricultural university of IIT or IISc or any could think why so too so many irrigation ministries in states or in the centre could evolve any meaningful ideas for inter connecting rivers, or modifying 'crop patters ' depending upon availability of rains depending upon so many decades of rainfall data, and the demand for food grains. Rice and Sugar alone are not just foods, there are quite a lot like 'Maize, Millets and so on, like dry crops, but we have been without brains simply convert all agricultural both wet and dry lands in non agricultural purposes as if you can live without 'any food, it is said some decades later man would consume 'worms' is the anticipation, per scientific reports already filed by several research institutions.

When so, how can we just simply mentally blow up and try to hit each other in the name of calling the the 'water resources' in a state as if it belongs to its own while water can flow any part of the state or country unrestrictedly as you can never prevent by construction of dams after all before water movement force no force of energy could contain water, we see in river Hoengo of China considered to be the 'sorrow of china' , they Chinese govt tried to put dams but all dam constructions could not sustain the force of water flow and the force just broke down all such dams and bridges; so they contrived 'tanks' and lakes where they ensured to divert the river Hoengo waters by holding waters, that really helped Chinese irrigation systems; our rivers except like Brahmaputra or Irawadi or Indus or Ganges, Narmada could be so used so too Godavari Krishna, Cavery, pampa etc by duly diverting excess flows in containment catchment areas besides rain harvesting so that drinking water could be easily assured, besides some for irrigation purposes, as population growth none can contain however much we talk about 'family planning' and the like .

Therefore we need to be rational. We need to be good thinkers. But for thinking you can never achieve anything on earth.

No doubt all resources do get recycled; that we need to know. We can waste as we waste water resources into seas by draining and recycling by cloud formations that pour in where we could have good 'forests, mountains, etc that natural formations only cause rains, not just great ideas like trying to use air planes to force clouds to convert into rains at the places web want; after all you don't control; air or winds even they may appear to be simple but in fact most unharnessable nature productions.

Watson thought well and thus created the massive computers initially and many others like Ada Byron and others too contributed the development of . mini computers , how just by creative 'thinking process' not by waging wars or talking irrationally , Hitler tried to be the police force of the world, that way he waged wars, we lost millions of lives , could he achieve anything meaningful.

Therefore, peaceful 'thinking process' alone could solve issues; not by burning properties like lorries, buildings, or damaging properties.

Judiciary rightly gives decisions for helping you to think solutions; nor meaninglessly fighting against each other set of peoples; that way 'terrorism' is failing that you all see, when so why don't you mentally modify yourselves is the question before man.

Never anger ever saved any in the whole history of man. if you review the history to understand yourself.

First harness 'Angers' , 'Violence' that way the idea of Non violence was found for peaceful co-existence. that way pancha sheel idea Nehru and Chou en Lai signed in 1960s, that way Non violence movement surfaced then that way Nehru -Tito Non Alliance Treaty idea came. But yet without thinking if we quarrel among ourselves, how can we be global citizens, if we cannot understand or comprehend what is globalization. How other nations would trust you if you become so white hot anger, and destroy properties. How any foreign investors would land at a place of a man who is simmering with anger and violence.

All that happened in the last few days might make the exiting IT companies in Bangalore to think is it worth to continue their location to be Bangalore or Bengaluru or whatever you might call or any place. This situation might help thinking of Nasscom members to shift to Amarawati region a new AP state capital in the making as AP men compared to quite a lot of Indian states are very cool since Amarawati is located in indeed a coastal AP where the lands too basically fertile, and poverty is not so high; besides, one needs to realize, IT industry could be anywhere where human concentration is just thin, so too the concentration of landed wealth; just 'dry lands' even silicon valleys like deserts might fit.

Bangaloreans must realize their follies if they continue to become white hot anger for everything; that way Bengaluru today is not the Bangalore of the 1960s or 1970s or early 1980s. So Karnataka man need to realize and mend his ways. If not they might lose the growth they registered so far, I warn.

Be a thinking citizen, else terror itself would destroy very Bangalore economic growth.

SC upholds Allahabad HC Rule which mandates that a lawyer outside state cannot appear in Court without a Local lawyer’s appointment

The Supreme Court in JAMSHED ANSARI VS. HIGH COURT OF JUDICATURE AT ALLAHABAD & ORS has held that right of Advocates to appear and conduct cases in the court is a matter on which the court must and does have major supervisory and controlling power and it cannot be and are not divested of control or supervision of conduct in court merely because it may involve the right of an Advocate.

Dismissing an appeal against Allahabad High Court Judgment preferred by a lawyer, Jamshed Ansari, the Apex Court Bench comprising of Justices AK Sikri and N V Ramana held that Rules 3 and 3A of the Allahabad High Court Rules, 1952 and perfectly valid, legal and do not violate the right of the appellant under Article 19(1) (g) of the Constitution of India.

As per the Rules, an Advocate who is not on the Roll of Advocate or the Bar Council of the State is not allowed to appear, act or plead in the said Court unless he files an appointment along with the advocate who is on the Roll of such State Bar Council and is ordinarily practicing in that Court. The impact of this Rule is that for appearance in Allahabad High Court, an Advocate who is registered with the Bar Council of the State of Uttar Pradesh is allowed to appear, act or plead in the said Court only when he files his Vakalatnama along with an Advocate who is enrolled with Bar Council of Uttar Pradesh and is ordinarily practicing in the Allahabad High Court. This Rule was challenged mainly on the ground that these Rules put an unreasonable restriction on his right to practice as an Advocate and are also ultra vires the provisions of Section 30 of the Advocates Act, 1961

Observing that the Rules pass the test of Reasonableness, the Court said: “Such Rules are also aimed at helping in regulating the functioning of the Court. It is important for the orderly functioning of the Allahabad High Court that Rolls are maintained in Order to effect service of notices and copies of pleadings and ensure regular procedural 13 compliances. The same will not be possible if proper records of Advocates practicing in the High Court are not maintained in the High Court. The administration of justice will suffer if no person is held accountable for non-compliance of office reports etc. There may be occasions when Advocates may be called upon by the Court in pending matters and the dispensation of justice will suffer if there is no record of Advocates who do not generally practice in the High Court, may not attend matters in which they may have filed their vakalatnama before the High Court. It is imperative for the smooth and effective functioning of the court that the court is able to fix responsibility on Advocates, which is not possible if Roll of Advocates is not maintained in the High Court. Moreover, an advocate is permitted to file vakalat on behalf of a client even though his appearance inside the court is not permitted. Conduct in court is a matter concerning the Court. But the right to appear and conduct cases in the court is a matter on which the court must and does have major supervisory and controlling power. Hence courts cannot be and are not divested of control or supervision of conduct in court merely because it may involve the right of an Advocate.”

The Court also, referring to earlier decisions, held that right to practice as an Advocate is not an absolute right and it was only a statutory right which is controlled by the provisions of the Act. The Court further observed: “the disciplinary jurisdiction conferred on the Bar Councils under Section 36 of the Act for misconduct committed by the advocates stand on a different footing than the powers conferred on the High Courts to frame rules to practice before the High Court or subordinate Courts. It may be the intention of the Parliament to confer the jurisdiction on the lawyers’ body like Bar Councils regarding misconduct by advocates to maintain the independence of the Bar. However, again keeping in mind the administration of justice and regulating the Court proceedings and right to practice and right to appear before the high Courts and Subordinate Courts, power is conferred on the High Courts, to frame rules. If High Court keeping in mind, several relevant factors like the purity in a administration of justice, the interest of the litigant public and easy availability of the advocate to assist the court for proper adjudication of the dispute pending before it or expeditious disposal of such proceedings or for any other valid or good reasons which High Court considered just and proper frames such rules, we find no fault in Rule 3 or Rule 3A of the Rules.”

Referring to Clause 7 of Letters Patent, the Court said:”A perusal of Clause 7 shows that the High Court of Judicature for the North-Western provinces (now known as Allahabad High Court) was empowered to “approve, admit and enroll advocates” and to authorize them “to appear, to plead or to act, or to plead and act” for the suitors in accordance with the rules and directions. This power of the High Court continues by virtue of Section 223 of the Government of India Act, 1935 and Article 225 of the Constitution of India.”

The Motor Vehicles (Amendment) Bill, 2016

The Motor Vehicles (Amendment) Bill, 2016 going to pass in Lok Sabha, that restricts liability to pay compensation to maximum  Rs.10 lakh in case of deceased and Rs. 5 lakh in case of injured towards third party claims by insurance companies.

Current position :- Insurance companies getting premium for risk of owner for  unlimited liability of third party. Insurance company have to pay  compensation according to age and income of deceased who  died due to accident ,who covers under third party claims to heirs of deceased. That's called unlimited liability towards third party. (First and second party are driver and owner of vehicle)

Insurance companies abusing poor law procedures every time ,not settling cases via compromise as facilitates by court to settle cases even reducing claim amount more than 50 %.Secondly lawyers of insurance companies never give even presence to court that leads to too much delay in court cases . the requirement is to take actions against their irresponsible behavior against public. Govt. working totally opposite to public interest. 

Now Gov. going to pass bill of motor vehicle bill  where limiting third party claims compensation to Rs.10 lakh, which lead to huge profit to insurance company. Excess of Rs.10 lakh  compensation burden on owner of vehicle.

Example:-  a young man died in accident and covering  in definition of third party if earning about 3000 per month , his heirs will  get nearly 10 lakh excluding interest of 9%. Now see if person earns  3000 their heirs gets 10 lakh as we know even carpenter and labours are getting minimum 500 per day that comes to Rs.15000/- per month. So, Result of this bill if Mr. Ambani dies, his heirs will get only Rs. 10 lakh. Hahahah what a joke !!

This bill is totally favorable for getting huge profit for insurance companies, awareness is required in public.

How to Save Stamp Duty & Registration Charges

How to save stamp duty and registration charges is a tricky question. Before discussing the same, lets understand what is stamp duty. According to wikipedia, Stamp Duty is a tax that is levied on documents. At the time of transferring ownership of property i.e. Registering Sale Deed, the buyer need to pay stamp duty & registration charges to Govt. The Stamp duty and Registration Charges vary from state to state. Some states offer discount on Stamp Duty e.g. if the property is registered in the name of a woman then you can save stamp duty. In Delhi stamp duty to be paid is 6% but if the property is registered in the name of a woman then stamp duty to be paid is 4% of Total Sale Deed value. Thus you will save stamp duty to the extent of 2% of Sale Deed Value. For the benefit of readers, I am listing down the current stamp duty charges in various states. These charges are indicative and may change. Also some state govt levy different stamp duty charges for different areas like urban & rural.

Chandigarh: 0%

Gujarat: 3.5%

Uttarakhand: 4%

AP, J&K, Punjab, Haryana: 5%

Delhi, UP, Bihar, Jharkhand, West Bengal, Sikkim & All NE States: 6%

Maharashtra, Karnataka, Kerala, Goa, Odisha: 7%

Chhatisgarh: 7.5%

Rajasthan, MP, TN & Himachal Pradesh: 8%

It is mandatory to pay stamp duty as per the stamp duty valuation fixed by the Registrar of your area under the stamp duty act of your state. Registration Charges are over & above Stamp Duty and is levied @ 1% of Total Property Value as per sale deed. Now lets understand how to save stamp duty and Registration charges with the help of following example.

Mr A is buying a 1000 sq ft flat in Delhi for Rs 1 Cr. Here 1 Cr is Market value of the flat. Now the sale agreement should be executed for total amount i.e. 1 Cr but you can save stamp duty by registering the property at circle rate or govt guidance value. Circle Rate or Govt Guidance Value is the minimum value at which the property can be registered. In laymen terms Govt Guidance Value or Circle Rate is the market value of property as per State Govt. It is always lower then the existing market value of property. In this example, Circle Rate or Govt Guidance value is Rs 6500 psf therefore according to Govt the Circle Rate or Govt Guidance Value of the property is 65 Lacs whereas actual market value is 1 Cr.

By registering the property at Circle Rate or Guidance value you can save substantial amount in stamp duty & registration charges. If you register the property @ 1 Cr then you will be paying 6 lac as stamp duty & 1 Lac as Registration charges in Delhi therefore total payout is 7 lac for registration.

In order to save stamp duty, you decided to pay stamp duty and registration charges @ Guidance Value or Circle Rate then you will register the property @ 67 Lacs (65 Lacs as Circle Rate + 2 Lac for Car Parking). It is mandatory to include Car Parking charges in Circle Rate or Guidance Value to arrive at final registration value. Therefore stamp duty to be paid is  4.02 Lac and Registration Charges of 0.67 Lacs. Total Payout is 4.69 Lacs.

Total saving on stamp duty and registration charges in this case is equal to 7 Lac – 4.69 Lac = 2.31 Lac.

Now 2 big questions, to save stamp duty you will register the property at guidance value or circle rate but (a) How to convince the Seller for same & (b) How will you show the transaction of balance 33 Lacs i.e. 1 Cr – 67 Lacs.

Answer is if the seller agree to register property at Guidance Value or Circle Rate then he will save on Capital Gain Tax therefore he will not mind registering property at circle rate or guidance value. Regarding transaction of balance 33 Lacs, as the Sale agreement is signed for 1 Cr & property is registered for 67 lacs. Buyer can sign another agreement with seller which is called Deed of Transfer of Rights (DOTOR). Balance transaction of 33 Lacs can be shown in DOTOR, which will complete the financial transaction. I will discuss about DOTOR in more detail in my next article.

The only flip side of registering property at Guidance Value / Circle Rate to save stamp duty is that some Home Loan Providers like SBI will only provide Home Loan of upto 80% of Sale Deed Value not the Sale Value e.g. In this case if buyer avail home loan from SBI then SBI will provide maximum loan of 53.6 Lac i.e. 80% of 67 Lacs (excluding stamp duty & registration charges). Whereas in case of other lenders like HDFC, loan will be 80% of Sale Agreement Value i.e. 80% of 1 Cr = 80 Lacs as Home Loan.

This method to save stamp duty is very much legal and you can save good amount of money for your home furnishing ;)

First Information Report (FIR)

What is First Information Report (FIR)

The first information report means an information recorded by a police officer on duty given either by the aggrieved person or any other person to the commission of an alleged offence. On the basis of first information report, the police commences its investigation. Section 154 of the Code of Criminal Procedure, 1973 defines as to what amounts to first information.

The said section reads as under:-
154. Information in cognizable cases
(1) Every information relating to the commission of a cognizable offence, if given orally to an officer-in-charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.

(2) A copy of the information as recorded under sub-section
(1) shall be given forthwith, free of cost, to the informant.

(3) Any person aggrieved by a refusal on the part of an officer-
in-charge of police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post to the Superintendent of Police concerned, who if satisfied that such information discloses the commission of a cognizable offence shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer-in-charge of the police station in relation to that offence.

The provision in section 154 regarding the reduction of oral statement to writing and obtaining signature of the informant to it, is for the purpose of discouraging irresponsible statement about criminal offences by fixing the informant with the responsibility for the statement he makes.

Refusal by the informant to sign the first information is an offence punishable under section 180 of the Indian Penal Code. The absence of signatures on the first information report by the informant, however, is not necessary to the extent that it will vitiate and nullify such report. The first information is still admissible in evidence.

In order to constitute an FIR in terms of section 154 of the Code. of Criminal Procedure, 1973 two conditions are to be fulfiUed:-
(a) what is conveyed must be an information; and
(b) that information should relate to the commission of a cognizable offence on the face of it.

In other words, FIR is only a complaint to set the affairs of law and order in motion and it is only at the investigation stage that all the details can be gathered. In one of the judgments, the Madhya Pradesh High Court observed that the report of the crime which is persuading the police machinery towards starting investigation is FIR, subsequent reports are/were written, they are not hit under section 161 of the Code of Criminal Procedure, 1973 and cannot be treated as such.

Who can File an FIR?
First Information Report (FIR) can be filed by any person. He need not necessarily be the victim or the injured or an eye-witness. First Information Report may be merely hearsay and need not necessarily be given by the person who has first hand knowledge of the facts.

Where to File an FIR?
An FIR can be filed in the police station of the concerned area in whose jurisdiction the offence has occurred. A first are to obtain information about the alleged criminal activity so as to be able to take suitable steps for tracing and bringing to book the guilty person.

Its secondary though equally important object is to obtain early information of an alleged criminal activity and to record the circumstances before the trial, lest such circumstances are forgotten or embellished.

Why FIR should be filed promptly
This is the golden principle of law prescribed in the Code of Criminal Procedure, 1973 that the First Information Report should always be filed promptly and without wasting any time. Such type of report gains the maximum credibility and is always welcome and appreciated by the courts.

According to Supreme Court the FIR recorded promptly before the time afforded to embellish or do away with the evidence is useful. It eliminates the possible chance of giving rise to suspicion.

Is there time duration fixed for Filing an FIR?
We have already emphasized this fact that as far as possible and practicable, every FIR should invariably be filed promptly, expeditiously and without wasting any time. There may be circumstances where some concession of time must be given in filing the FIR But there must be cogent reasons for reasonable delay in filing the FIR under the compelling circumstances. Judges with lot of wisdom and experience can use their discretion judiciously and in the interest of justice in each and every case. However, no possible duration of time can be fixed for applying the test of reasonableness to the lodging of an FIR as we have already explained. It depends upon facts and circumstances of each case. The delay in lodging the FIR as such is not fatal in law if the prosecution substantiated the factual difficulties encountered by the persons lodging the report.

Following are the reports or statements which do not amount to be an FIR:-

1. A report or a statement recorded after the commencement of the investigation (sections 162 and 163 of the Code of Criminal Procedure, 1973).

2. Reports not recorded immediately but after questioning of witnesses.

3. Reports recorded after several days of developments.

4. Information not about occurrence of cognizable offence but only cryptic message in the form of an appeal for immediate help.

5. Complaint to the Magistrate.

6. Information to beat house.

7. Information to the Magistrate or police officer on phone.

8. Information received at police station prior to the lodging of an F.I.R.

It was held in Damodar v. State of Rajasthan, AIR 2003 SC 4414: 2003 AIR SCW 5050: 2003 (4) RCR (Cri) 355 (SC) that if the information was conveyed to police on telephone and DO entry was made, it will not constitute an FIR even if the information disclosed commission of cognizable offence.

Living Separately 13B

In all the three Acts, it is one of the condition that both the parties must have been living separately for a period of one year though under the Christian Divorce Act the period is of two years.

Living Separately for a period of one year should be immediately preceding the presentation of the petition. It is necessary that immediately preceding the presentation, the parties must have been living separately. The expression 'living separately' connotes not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife. The parties may be living in different houses and yet they could live as husband and wife. What seems to be necessary is that they have no desire to perform marital obligations and with that mental attitude, they have been living separately for a period of one year immediately preceding the presentation of the petition.

In Kirtibhai Girdharbhai Patel v. Prafulaben Kiritbhai PateI,
A joint petition filed by both the parties. It was a common contention that on account of broken marriage, the spouses have been residing separately and their relation, as husband and wife, has not been consummated since 1986. However, the trial court dismissed the petition holding that one of the conditions that spouses must have been living separately for one year or more was not satisfied as the spouses stayed together. However, the High Court did not agree and held that this condition have been living separately for a period of one year will be fulfilled even if they have been living under one roof, but the marriage has not been consummated.

Living separately for one year is sine qua non for filing a petition under section 13B of the Act. These words "living separately" for a period of one year came up for interpretation before the Bombay High Court in Miten v. Union of India where the petitioners were married on 29-4-2007 according to Hindu rites and customs. The marriage between the parties was registered in accordance with law. After the marriage, they cohabited together in Bombay till 2-8-2007, when matrimonial differences arose between them. They were living separately since 2-8-2007. Attempts for reconciliation failed. To put an end to their marriage, they applied for divorce by mutual consent under section 13B of the Act. On 30-10-2007, when the matter came up before the Principal Judge of the Family Court, vide order dated 13-10-2007, the petition was rejected. The petitioners assailed the order of the Family Court by way of writ petition before the Hon'ble High Court.

The ground of rejection by the Family court was that the marriage took place on 29-4-2007 i.e.; only six months back and section 13B, does not allow the parties to come to the Court for divorce by mutual consent unless they complete one year or more separation. The parties contended before the Hon'ble High Court that the pre- condition that they should have lived separately for a period of one year or more for obtaining divorce by mutual consent under section 13B of the Act was unconstitutional, arbitrary and tantamount to an artificial classification which was impermissible and such a pre-condition was contrary to the object of insertion of section 13B of the Act.

The primary contention raised before the Court was that:

the condition No. (i) they have been living separately for a period of one year, and

condition No. (ii) they have not been able to live together were merely directory and can be suitably waived or altered by the Court depending upon the facts and
circumstances of the case and compliance of these conditions was not mandatory.

The Hon'ble High Court while taking note of divergent views of the different High Courts with regard to waiver of six months period as mandatory or directory, held that period of one year "living separately" is sine qua non for filing of petition under section 13B. Its waiver was not permissible as per any settled corner of interpretation.

It observed:

"the Legislature in its wisdom and being aware of other existing provisions of the Act, other laws and the opinion of the society, opted for insertion of section 13B in its present form without any intent to convert divorce from statutory satisfaction to whim of the parties. The period of one year 'living separately' is sine qua non to the filing of the petition under section 13B and as such, its waiver would be impermissible as per settled corner of interpretation. The Court gets jurisdiction to entertain and decide the petition only after these ingredients are satisfied: Non-compliance of these provisions may even affect the jurisdiction of the Court as the petition would lie beyond the statutorily specified essentials and, thus, in law, be a defective or an incomplete petition.

It also held that while interpreting statutory provisions, Court would not add or subtract words from section nor would it give meaning to language of section other than what is intended on plain reading of provision.

This case shows that period of one year prescribed under section 13B for "living separately" is sine qua non for filing of the petition under section 13B. It cannot be waived by the Court. Not only this, this case also shows that even the period of six months which has been held by some of the Courts as Directory is not so. It is mandatory period and the same also cannot be waived.

Supreme Court Guidelines on FIR

Supreme Court has given Directions to be followed in regards to Registration of an FIR, these directions are discussed below:

(i) Registration of FIR is mandatory under section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

(ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

(iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

(iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.

(v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

(vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

(a) Matrimonial disputes family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay in initiating criminal prosecution, for example, over 3 months delay.

In reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

(vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.

(viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, it was directed by Supreme Court that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatory and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.

Legal Notice and its importance : Procedure of filing & replying to a Legal Notice

In Today's world we enter into numerous litigations with individuals/firms wherein filing of civil suit becomes imperative which we do generally file. Some individuals/firms enters into litigation straightaway while others opt for serving a notice upon opponent of giving out intention filing of a civil suit in court of competent jurisdiction. There are certain legislations which make it mandatory to file a legal notice before filing  any litigation otherwise that litigation will be bad in law. For eg. The Negotiable Instruments Act, 1938. It therefore becomes important for us to understand as to what is meant by Legal Notice which is discussed herein.

What is a Legal Notice

A "Legal Notice” is a notice indicating your opponent that you are preparing to litigate a lawsuit against him in case the so called demand is not fulfilled.

Importance of Filing a Legal Notice

Before you decide to start a court case, there are several things that you should think about. Like majority of cases settle before trial. If you think your case can be settled, you may want to consider alternatives before you begin your lawsuit. Some of these alternatives are:

1. Negotiation (e.g., an exchange of letters between the parties);

2. Mediation; and

3. Arbitration

Taking a case to court can be an expensive and slow way of solving your problem. Many a time alternatives as mentioned above may serve out to resolve matter without even going to court. Nobody wants to waste their time & money in litigating over matter which can be resolved by negotiations very well. These days, even companies while entering into contacts with individuals/firms makes it obligatory on their part to specify  clause stating that disputes are to be settled through arbitration instead of going to court.

However, when negotiations do not work, an individual/firm need not require to directly file a suit in court of law. Individual may serve a Legal Notice demanding resolution and giving clear intention of filing a lawsuit whereby there are chances of resolution of dispute through settlement avoiding law suit trials that run for years together.

Legal Notice under section 80 of The Code of Civil Procedure, 1908

Legal Notice is filed generally in civil cases. In criminal cases, no legal notice is filed as action is taken by the State who is the supreme power. However if you are seeking civil action against government you have to first serve government a legal notice. It is only thereafter that you can file civil suit against government.

Section 80 of Civil Procedure Code,1908 deals with filing of Legal Notice  in Civil Cases against Govt.which is reproduced hereunder:-

1. No suits shall be instituted against the Government (including the Government of the State of Jammu & Kashmir)] or against a public officer in respect of any act purporting to be done by such officer in his official capacity, until the expiration of two months next after notice in writing has been delivered

2. Exception to filing of Legal Notice – A suit to obtain an urgent or immediate relief against the Government may be instituted, with leave of the Court, without serving any notice but the Court shall not grant relief in the suit,  except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:

Contents of Legal Notice

It is very important that your legal notice is drafted elaborately covering all things that you demand from the opponent.

A legal notice must include the following:

1. Concise statement of the material facts giving rise to the claim;

2. Relief sought by the plaintiff against each named defendant;

3. Concise summary of the legal basis for the relief sought

Procedure to File Legal Notice

1).You can draft the notice yourself or avail the services of a lawyer.

  2. The notice should be addressed to the person against whom you have the grievances.

  3. Mention the cause that compelled you to send the notice.

  4. Mention previous communications regarding the cause of notice.

  5. Offer the addressee a reasonable time say 30 days or 60 days to settle the matter by negotiating and by performing the desired action.

  6. Give time in notice for either fulfilment of your demand or giving reply

  7. Sent it through Registered AD post.

2). Keep a copy of receipt of post office as well as notice.

3). You can personally send the legal notice without lawyer but it is advised that draft the notice meticulously, in such a way that it is not lengthy and containing all the material contents related to the cause.

4) Though every Legal-Notice can be legally send through person himself also– but on the basis of experience it is advisable that technical legal notice be drafted by a lawyer. I hereby ABHI SHETH is offering Legal Notices Services and you can contact me for getting your legal notices drafted so as to effectively seek resolution without going to court of law.

5). Another important thing is the DRAFTING OF THE NOTICE– Many times we do not know the legal importance and meaning of the usual words which we use in a casual manner — So when you are writing down the legal-notice than you should be extremely careful about each and every word that you use and be cautious about not admitting any fact which you may later on want to deny in a court of law as once the legal notice is dispatched than you cannot make any changes in that and later on also you cannot make any contradictory statement from what you have already stated in a legal notice.

Replying to Legal Notice

Although it’s not mandatory, yet it’s always advisable to reply APPROPRIATELY to a Legal Notice, citing the relevant clauses of applicable Laws.   “No Reply to a Legal Notice” can be an added advantage to the opposite side, if it opts to proceeds to the court. The consequences for non-replying is not an offence under law, but if replied in a fitting manner, there are chances of putting an end to the future filing of vexatious cases. The reply should be given within the time stipulated in the legal notice sent by the other party. But in case it could not be replied due to the circumstances beyond your control and if there is any inordinate delay in replying, the compelling reasons may be briefly stated to avoid any misconception in the minds of the other party. If a reply is not sent for a legal notice, the other side may use it as an advantage to them while drafting the petition and put blame on you for not complying with the requirements of notice which has become the root cause for filing the case. The reply to the legal notice is generally welcomed by the Courts however for not replying to a legal notice will not automatically pave way for an ex parte decree, since the importance of a legal notice would end as soon as the Court proceeding starts. Only when you don’t appear in a case despite serving summons on you, shall the Court passes an ex parte order/decree.

Checklist For Replying To Legal Notice

First of all, read well the contents of the Legal Notice in the context of the Agreement, executed between the parties.

Secondly, check the limitation. Does the claim still within the limitation period? If the claim is time-barred, simply one line response to a legal notice will suffice.

Thirdly, check the contractual obligations of the Claimant which he was supposed to fulfill and the shortfalls, if any, shall be a good defense and one can seek full compliance of contractual deliverables to counter the payment demand notice.

Fourthly, if short-falls in the contractual deliverables are relevant and non-rebuttable then proceed expressing  your counter-threat of your rights to claim damages against such short-falls of the opposite side which may deter the opposite side proceeding any further legally.

Finally, need to mention that “The rights of my Client will be fully protected legally at your cost and consequences and this reply is without prejudice to any other legal remedy which may be available to my client”.

Touts of courts

Do you  know who is the most important person for any advocate, either practising at lower court or at District Court or at High Court or at Supreme Court, from last 22-24 years in India. The answer is ‘ Tout ’.

A person, who brings court’s work for an advocate, on commission basis, is known as ‘ Tout ’. The quantity of briefs of an advocate is not depend upon his/her efficiency, knowledge of law, ability, seniority, honesty, competency and performance etc., rather same is a result of his/her maintaining ‘ Touts ’.

Now one would ask what do you mean by ‘ Tout ’. Let me tell. A ‘ Tout ’ is a person, who induces/instigates, on the basis of falsity, any party of a court’s case/complaint/matter to engage any particular lawyer for conduction of said case/complaint/matter in the court. The fee of said lawyer in that  court’s case/complaint/matter is also settled by said ‘ Tout ’. After getting part/full payment of said fee by said lawyer from that party, about fifty percent of that payment is given to ' Tout ' by said lawyer. In this way the fifty percent of total received fee in question goes into pocket of ' Tout '.

This 'Tout ' is not bound to have any academic qualification and license from any agency to do that work of tout-ism. Anybody can become ' Tout '.

Now a days mostly ' Touts ' are among lawyer's clerks, Private Typists of courts, Private Draft-Men of courts, Officials of Courts of any rank, Officials of department of Police of any rank, Officials of department of Jail of any rank, Officials of department of Revenue of any rank, Officials of private/public Hospitals of any rank, Officials of Public/Private Banks and Assurance Companies of every level, Officials of any other Government and Private department, Officials of local Bar of Courts of every type,Officials of court's canteens of any type, Sweepers and Blacksmiths of  courts and other localities of cities and villages, Municipal Councils, Members of Gram Panchayat, Politician of any level, Persons having civil and criminal court's cases of their own etc. Even advocates himself/herself are doing job of ' Tout ' for other advocates.

Most of advocates give as much respect to any of ' Tout ' as given by them to any respectable elder member of their family. Earnings of most of ' Touts ' are much higher then most of advocates of India. Sycophancy of a ' Tout ' has become the only religion of all most all advocates of India. Now if any advocate wants to shine his/her advocacy in India, then it has become very necessary for him/her to adopt said religion of sycophancy of  ' Tout '.

Ten Points You Must Know About Real Estate (Regulation and Development) Bill, 2016

Real estate sector has been a highly unorganised sector paving way for many corrupt activities, defaults and delays much to the dismay of real estate property buyers. There was a compelling need to have a law that brings in systematisation and transparency in the field.

Hence, Real Estate (Regulation and Development) Bill, 2016 was passed by the Rajya Sabha on 10th March, 2016.

Here are ten points you must know about this important Real Estate Bill.

1) The preamble of the bill lays down the objective – ‘to establish the Real Estate Regulatory Authority for regulation and promotion of the real estate sector and to ensure sale of plot, apartment of building, as the case may be, or sale of real estate project, in an efficient and transparent manner and to protect the interest of consumers in the real estate sector and to establish an adjudicating mechanism for speedy dispute redressal and also to establish the Appellate Tribunal to hear appeals from the decisions, directions or orders of the Real Estate Regulatory Authority and the adjudicating officer and for matters connected therewith or incidental thereto.’

2) Therefore, in order to achieve the aim of a better-organised real estate sector, Section 20 provides for establishment of Real Estate Regulatory Authority. It is to be established by State Government within a year from the Act coming into force. It shall consist of a chairman and two members. They shall be appointed by the appropriate government on recommendation of a Selection Committee consisting of the Chief Justice of the High Court or his nominee, the Secretary of the Department dealing with Housing or Law Secretary from persons having adequate knowledge in the field of housing, real estate development, infrastructure etc., with professional experience of at least 20 years in case of Chairman and 15 years in case of members.

3) Chapter II of the  Real EstateBill mandates registration of all promoters, agents, structural engineers, architects, contractors, layout plans, approvals, agreements etc.

4) In order to ensure timely completion of project as buyers at present do not get possession of the property for a long time due to delay in construction, Section 4(2)(D) of the Real Estate Bill provides that 70% of the amount realised from the allottees shall be deposited in a separate account to cover the cost of construction and land cost and shall be used only for this purpose. In fact, the Section also provides that the amount can only be withdrawn after it is certified by the architect, engineer and a certified chartered accountant to ensure that the withdrawal is in proportion to the percentage of completion of project.

5) The explanation to Section 2 (za) of the Real Estate Bill provides that the rate of interest payable by promoter to allottee in case of default or delay is the same as the interest payable by allottee to promoter. The period for payment of interest by promoter shall be from the day he receives amount to the day it is refunded.

Also, Section 59(2) provides that the promoter shall be liable for an imprisonment of 3 years or penalty that extends to 10% of the cost of the real estate project if he violates the orders, directions or decisions issued under the Bill.

6) Under Section 11(4)(e), promoter has a duty to enable the allottees to form the allottees’ association within three months from the date on which majority of allottees have booked their plots. Also, under Section 14, promoter has to follow all the sanctioned plans, layout plans and specifications for construction and any change in them can only be done after obtaining consent from the allottees.

7) Section 31 states that an aggrieved person can approach the Authority or adjudicating officer to file complaints. The functions of the Authority among other things is to create a robust grievance redressal forum, to provide for amicable settlement of disputes between promoters and allottees through dispute resolution forums, digitisation of land records to guarantee conclusive property titles.

8) According to Section 35, the Authority will have the same powers as that of a civil court and can also take up cases suo moto and order inquiry into the same.

9) Under Section 3 of the Bill, no promoter can advertise, market, book or offer for sale or invite people to purchase plot, apartment or building unless the real estate project is registered with the Authority. Moreover, Section 12 imposes obligation on the promoter for veracity of the advertisement or prospectus. If a person makes an advance or deposit on the basis of the information provided in the advertisement and suffers loss or damage by reason of incorrect or false statement in the advertisement/prospectus, then the promoter is liable to compensate the allottee.

10) The buyers can make an informed decision as under Section 4(2)(b) the promoter has to submit details of all his completed and on-going projects in the last five years to the authority along with details like delay in completion, delay in payment, type of land etc.

While, digitisation and the attempt to bring in transparency will surely improvise the real estate sector, what needs to be noted is the number of approvals that every project needs and the time taken to issue each of these. Approvals like Intimation of Disapproval, Commencement Certificate, NOC, building completion certificate, occupancy certificate etc., further delay the entire process of real estate construction. Hence, along with this bill, there is a need to bring about better administrative reforms in the sector in order to make the process faster.

MOFA is scrapped / Repealed by RERA

  The Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, popularly known as MOFA was repealed by section 56 of Maharashtra Housing (Regulation & Development) Act 2012 which came into force on 6th Sept 2015.

And then The central Act : Real Estate (Regulation & Development) Act 2016 have repealed the Maharashtra Housing (Regulation & Development) Act under section 92 which came into force from 1st May 2016.

Now many of my friend were under the impression that MOFA is still prevailing. Let us visit General Clause Act Section 6 :

Effect of repeal. ?Where this Act, or any 1 [Central Act] or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not?

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.

The General Cluse Act says that an Act once repealed cannot come into force automatically. Suppose Act Z was repealed / scrapped by Act Y and Act Y was repealed by Act X. Hence Act Z cannot come to life automatically unless a separate provision or Act is passed to revive it.

The Maharashtra Act which repealed MOFA had condition for MOFA repeal :

Provided that, the repeal shall not affect,— (a) the previous operation of the law so repealed or anything duly done or suffered thereunder, or (b) any right, privilege, obligation or liability acquired, accrued or incurred under the law so repealed, or (c) any penalty, forfeiture or punishment incurred in respect of any offence committed against the law so repealed, or (d) any investigation, proceedings, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, proceedings, legal proceedings or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if this Act has not been passed : Provided further that, subject to the preceding proviso and any saving provisions made elsewhere in this Act, anything done or any action taken under the provisions of the law so repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act; and shall continue to be in force accordingly unless and until superseded by anything done or any action taken under this Act. (2) Any reference in any law or in any instrument or other document to the provisions of the law so repealed shall, unless a different intention appears, be construed as a reference to the corresponding provisions of this Act.

Which means all cases, right, interest and liabilities incurred during the MOFA’s period will be in offing and all courts and agreements will adhere to MOFA provisions for transactions entered into during MOFA’s period.

Hence, MOFA is scrapped / repealed by Maharashtra Housing Act and Maharashtra Housing Act is repealed by Central Real Estate (Regulation & Development) Act 2016 since 1st May 2016.

Henceforth, all matters will be treated under central Act. Even Article 254 says that in case of confusion as to Act enacted by Center and State on the same subject, then Central Act will prevail and will have supremacy on state Act.

All buildings which have not got OC will have to take license from RERA

All buildings which have not got OC will have to take license from RERA Under Real Estate (Regulation and Development) Act 2016, it is mandatory to register all ongoing real estate projects. Let us understand the provisions of the new Act. The Act will regulate all real estate development process and real estate transaction process in the country. The Act came into force from 1st May 2016. Though housing is a state subject, new Act wants all state to establish Real Estate Regulatory Authority.

According to Sec 20 (1) after the establishment of the Authority, which will be within one year from date of commencement (1st May 2016) all new and ongoing projects will have to register with the Authority within three months. The relevant section says : 3. (1) No promoter shall advertise, market, book, sell or offer for sale, or invite persons to purchase in any manner any plot, apartment or building, as the case may be, in any real estate project or part of it, in any planning area, without registering the real estate project with the Real Estate Regulatory Authority established under this Act: Provided that projects that are ongoing on the date of commencement of this Act and for which the completion certificate has not been issued, the promoter shall make an application to the Authority for registration of the said project within a period of three months from the date of commencement of this Act: Now , the problem is hundreds and thousands of buildings do not Occupation Certificate. Once the Commencement Certificate along with IOD (Intimation of Disapproval) is granted the project is treated as under construction.

Even after ten or fifteen years, the building is occupied, many transaction take place and housing finance availed but the building is not finished in the eye of law unless it gets Occupation Certificate (OC) or Building Completion Certificate (BCC) whichever is applicable. All estate agents who sell flats in these buildings will also be liable to penalties imposed under the Act because the Act says in Sec 10 no broker should facilitate any sale in projects which do not have license or approval from RERA Authority. Any building which not got OC is under construction and all under construction buildings must be registered with RERA. If there is no license to the building or OC then all those who are instrumental will be liable for punishment which could be imprisonment and fine. All builders who have not got the OC for their property need to register it with authority. One cannot run away with this provision as Authority are tracing unscrupulous builders who do not complete projects. Thousands of buildings in Mumbai, Pune, Bangalore, Delhi and elsewhere in the country have not got OC since last 15 to 20 years.

All these buildings will have to be registered under the authority as under construction projects and builders will have to bring in OC. If not then no broker or no buyer will purchase properties without OC. All the occupants of such building will have trace builders to get them OC or file consumer complaint against builders or start the process of getting OC of their own which requires huge capital and penalties.