An article about " THE RIGHT TO PROPERTY OF HINDU WOMEN’S UNDER HINDU LAW "

THE RIGHT TO PROPERTY OF HINDU WOMEN’S UNDER HINDU LAW

The Constitution of India provides that every person is entitled for Equality before Law and Equal Protection of Laws and there by prohibits discrimination on the basis of Caste, Creed and Sex. The discrimination on the basis of Sex is permissible only as protective measures to the female citizens as there is need to empower women who have suffered gender discrimination for centuries. Now so far as property is concerned, the daughter shall be given every right to inherit immovable and movable property equal to that of male members. We will examine how far this right to property of daughter has been recognized in the laws relating to Hindus.

Rights of women in Co-parcenary property:

Prior to, Hindu Women’s Right to Properties Act 1937 the woman was totally excluded from taking share in the Joint Family Property. The succession to the property of male member was governed by rule of survivorship. The rule of survivorship means on the death of a member of joint and undivided family his share in the joint family property passes to the surviving male members called as coparceners. Mulla defines coparceners as ‘The three generations next to the holder in unbroken male descent.” If a man has sons, grandsons and great-grandsons living, all of these constitute a single coparcenaries with him. Coparceners jointly inherit property and have unity of possession. The co-heirs and their heirs are also called coparceners so long unity of possession continues. Co-parcenary is different from joint family. Co-parcenary is limited to three generations next to holder; the joint family has no such limitation. It includes all the generations of the holder. To understand the position of Hindu daughter in the law of succession, it is worthwhile to know important features of Co-parcenary property. There are two different laws followed by Hindus in respect of property. Mithakshara is widely followed in India, except in West Bengal; Dayabhaga is followed in West Bengal.

Co-parcenary property:

1. Unity of ownership that is the ownership of property is vested in the whole body of the co-parceners.
2. In determinability of shares i.e. the interest of a Coparcener member in the property is a fluctuating interest capable of being enlarged by deaths in the family and liable to be diminished by births in the family.
3. Community of interest i.e. no co-parcener is entitled to any special interest in the co-parcenary property nor is he entitled to exclusive possession of any part of the property. His right is that of an undivided interest.
4. Exclusion of females i.e. females are excluded from inheriting co-parcenary property though wife was entitled to maintenance out of her husbands property.
5. Rights by birth, co-parcenary members acquire interest in the property by birth.
6. Devolution of survivorship, one of the interesting features of Mithakshara Co-parcenary is that on the death of a Co-parcener his interest in the property passes by survivorship (the members who are alive) to other Co-parceners. In Dayabhaga, the property devolves on the death of the holder. Nobody inherits any interest by birth.

However Women’s Right to Properties Act:

However the Hindu women’s right To Properties Act 1937 gave a death blow to the doctrine of survivorship, because under this act the widow of a deceased co-parcener in a Mitakshara undivided family will have in the joint family property the same interest which her husband had while he was alive.  It may be noted that the widow has right to claim a partition as a male owner even if there is male issues, but the widow was not in a position to hold the property as absolute owner.  Only with the passing of the Hindu Succession Act the position of widow and daughter came to be improved.  Before going further into the Act of 1956 it is worthwhile to examine the concept of coparcenary property.  Generally speaking coparcenary property is one in which all the coparceners have community of interest and joint possession.  Such property consists of

1. Ancestral property.
2. Property jointly acquired by the members of the joint family
3. Separate property of a member ‘” thrown into the common stock” with the intention of abandoning all separate claims on it, which becomes the property of joint family.
4. Property acquired by all or any of the coparceners with the aid of joint family funds.

Ancestral Property:

Ancestral property means that property which descends from father, father’s father or father’s father.  The Privy Council has held that the ancestral property is confined to property inherited from the three immediate paternal ancestors and the property inherited from a maternal grandfather is the absolute property of the inheritor in which his son does not acquire any interest by birth, and that it is not ancestral.

Hindu Succession Act 1956:

For the purpose of succession to property by Hindu daughter the Hindu succession Act, divides the property into four categories they are,

1. Co-parcenary property,
2. Property of male Hindu,
3. Property of female Hindu and
4. Dwelling house.

The provision relating to Co-parcenary property in the Hindu succession Act 1956 is Sec.6 which provides that if a male Hindu dies leaving behind his share in Mithakshara Co-parcenary property, such property will pass on to his sons, son’s, son’s son by survivorship, on surviving members.  In case there are female relatives like daughter, Widow, mother, daughter of pre-deceased son daughter of predeceased daughter widow of pre-deceased son, widow of pre-deceased son of a predeceased son, then the interest of the deceased co-parcenary will pass on to his heirs by succession and not by survivorship.

Example:  If ‘c’ dies leaving behind his two sons only, and no female heirs of class I then property of ‘C’ passes to his sons by survivorship since there are no female relatives like daughter or any other member specified in the class I of first schedule.  In case ‘C’ dies leaving behind two sons and three daughters, then property of ‘C’ will pass on to his sons and daughters by succession in the following manner.

Firstly property of ‘C’ is divided among ‘C’ and his two sons.  The shares of ‘C’ and his two sons are C –1/3, each son 1/3 .

The sons are entitled to the equal share of the property along with the father. But the daughters are entitled to the share in the share of the deceased “C” along with other sons. So the sons will get 1/3 of the property and a share, which is 1/5 in the share of deceased “C”.

Son 1 – 1/3+1/15

Son 2 – 1/3+1/15

Daughter 1 – 1/15

Daughter 2 – 1/15

Daughter 3 – 1/15

Even under the Hindu Succession Act the daughter does not take equal share with the son. In this regard Karnataka State has gone further and amended sec. 6, to give equal rights to daughter in co-parcenary property. This amendment was made by Karnataka State in the year 1990 as Hindu Succession (Karnataka Amendment) Act 1990 which received the assent of the President on 28/07/1994 and is published as Karnataka Act No. 23 of 1994. Under this amendment if a partition takes place in the co-parcenary property among sons and daughters then daughter shall be given share equal to that of son. By this amendment so for property rights in coparcency property is concerned no distinction is made between son and daughter. However it may be noted that this benefit is not available to daughter married prior to or to a partition, which had been effected before the commencement of Hindu Succession (Karnataka Amendment) Act 1990, 30/07/1994. This exclusion is mainly to avoid unnecessary litigation, which may spoil cordial relations. The union government has proposed to amend the section 6 of the Hindu Succession Act, to remedy the injustice meted out to the women, to allow equal shares to women.

Succession to the property of male Hindu

(self acquired property) (sec 8 to 10)

The nature of the property held by male Hindu U/S 8, is self acquired property. So far as self-acquired property is concerned the owner of such property can dispose of by sale, Will, or gift without any restrictions. In case the owner dies without disposing the property then other members get right to inherit the property by succession. After the death of owner of the self-acquired property, widow, or widows will take one share. To be more clear all the widows, if the deceased had more than one wife, together take one share only, as though only one wife. The surviving sons and daughters and the mother shall each take one share. In the case of self acquired property the daughter takes share equal to that of son unlike in coparcenary property.

Succession to the property of female Hindu

(sec 14,15,16)

For the first time in the Indian History U/S 14 of the Hindu Succession Act 1956, female Hindu is given absolute ownership over the property acquired by Will, sale or by any other lawful means, So far as succession to property of female Hindu is concerned the daughter, son, and the husband takes equal share by succession, which means while she is living no member can demand partition of the property. She can dispose the property either by will or by sale, if she dies without disposing the property then members gets right to inherit the property by succession. Section 15 of the Hindu Succession Act deals with the devolution of the property owned by Hindu female.

If the Hindu female has inherited any property form her father or mother, such property devolves upon the heirs of her father, if there are no legal heirs which are specified in section 15, like son, daughter, children of predeceased son or daughter. Likewise if the Hindu female has inherited any property from her husband or father in law, such property will devolve on the heirs of her husband if there no legal heirs like son, daughter, children of predeceased son or daughter.

Dwelling House:

But in case of dwelling house, the daughter U/S 23 of the Hindu Succession Act 1956, cannot claim any share by partition until male members choose to divide the share in the dwelling house. In case the daughter is unmarried, she is entitled to a right of residence there in.

The daughter may loose her right to share in the property in any of the following circumstances:

Sec (26) – if daughter ceases to be a Hindu by converting to another religion.

Sec (25) – if daughter commits murder or abets the commission of murder of a person whose property she could have inherited.

However she will not be disqualified to inherit the property only by reason of any disease, defect or deformity.

An article about " Supreme Court Judgement "

Supreme Court Judgement:

Zonal regulations cannot be imposed by the Government without acquiring the property

Being one of the fastest growing cities, Bangalore is experiencing a steady increase in the population, the main reason being that the rapid growth of Information Technology, which has earned the titles of “IT Hub of Asia” and “Silicon Valleyof India”. With the view to implement schemes for regulating  growth in the field of environmental exigencies, several legislations have been passed in different states, and one such act passed by the Karnataka Government is Town and Country Planning Act 1961. The role of the Planning Authority constituted under the said act is to implement schemes relating to public utility places, for developing the city in the planned manner, which includes public parks, Educational Institutions, etc.

The BDA is playing a vital role initiating step towards planning for development in Bangalore and accordingly prepared Comprehensive Development Plan (CDP) as per the Karnataka Town and Country Planning Act, 1961. The motto behind the implementation of such development plan is to develop the existing urbanized areas and   extension of the already developed areas, which will avoid new developments in distant outskirts that lacks infrastructure and transporting. Added to this, CDP also aims at creating flexible land use zone, to strengthen and respond to the realistic regulations and finally to safeguard public interest also.

Supreme Court Judgement:

In the field of such Development Plans being implemented in various states, the recent Supreme Court, in its judgement in Raju.S.Jethmalani and others Vs State of Maharashtra and others, has envisaged certain mandatory procedures to be followed by the competent authority before initiating any action pertaining to the proposed Development Plan. However, the judgement mentioned above  in particular pertains to Development Plan undertaken by the Government of Maharastra under Maharastra Regional and Town Planning Act 1966.

Welfare of the Public:

The Latin Maxim “Salus Populi est Suprema lex”  which means  the welfare of  the public is the Supreme law, this is one of the well known law which deals with the public interest , to this maxim all other maxims of public policy must yield for the object  that “ all laws are  to promote the general well being of Society”. In other words “regard for the public welfare is the highestlaw”. “Necesstas Non Habet Legem which means necessity has no law is the another  maxim that has been relied upon by the in the judgement delivered, which has been discussed in detail below.

Brief facts of the case referred to above are as follows:

Raju.S.Jethmalani and others V/S. State of Maharashtra and others (Order dated 5/5/2005)

On 18th of September 1982 draft development plan was prepared under Bombay Town Planning Act 1954 and Section 26(1) and 37 of the Maharashtra Regional and Town Planning Act 1966, for developing parks and Plot No. 437 and 438, measuring 2.00 Acres and 1.5 Acres was earmarked for the purpose of developing a park and was proposed to be named “Salisbury Garden”. The said plan was finalized and sanctioned on 5/1/1987.

The present controversy centers around the acquisition of the Plot No.438. In this regard, the Government issued notification, inviting objections and the Present owners submitted their objections for de-reserving the same. However, the proposal was initiated by  the Maharashtra Government for de-reservation of the plot earmarked for development of the park, due to paucity of funds for acquiring the same and the impugned notification was challenged by a Public Interest Litigation.

The High Court suggested for a settlement that instead of quashing the impugned notification, the implementation of the said notification can be deferred for the period of two years and if the same could not be carried out within the time specified, then the notification shall be set aside. However, while delivering this judgement, burden was laid on the owners of the plot No.437 to provide necessary area, approximate in size, suitable for the purpose of garden and park as envisaged in the Development Plan. The said order was not challenged by the Owners and after the expiry of two years, the impugned notification became operative and direction was issued to the concerned authority to proceed accordingly. After such passing of the said order, an application was filed before the High Court, seeking clarification and the same was also dismissed. Aggrieved by both the orders, the Owners preferred Special Leave Petitions before the Hon’ble Supreme Court.

The Hon’ble Supreme Court held that though the Legislation does not prohibit any Authority from acquiring land belonging to any private person for implementing the Development Plan to provide amenities to the residents of the area, such land cannot be earmarked for development plan without acquiring the land, without which the right of the Owner to use his land for residential purpose will be deprived. In the present case, the said plot was earmarked for the purpose of developing a garden under its development plan of 1966, but no effort was made by the Municipal Corporation or the Government to acquire this Plot for the purpose for which it was proposed to be acquired.

However, suggestion was made to the parties to the PIL asking them to explore the sources for mustering funds for acquiring the plot, which is the subject matter of the litigation and since parties confessed their inability for the same, the Hon’ble Supreme Court passed the order giving six months time to the residents if they can raise funds for acquisition of the land by the Government and if the same could not be done within the specified period, then the Appellants/Owners can utilize the land for the residential/other purpose in accordance with law. In View of the above discussion, the appeals were allowed

The principles laid down by the Hon’ble Supreme Court is that though the Legislation does not prohibit any Authority from acquiring land belonging to any private person for implementing the Development Plan to provide amenities to the residents of the area. In case of such land being earmarked for  development plan, then such Authority should first acquire such land, by following all the procedure envisaged under Law, without which the right of the Owner to use his land for residential purpose will be deprived.

C.D.P. in Bangalore:

In regard to the CDP being implemented by Bangalore Development Authority, the same principles are required to be followed. However, no final notification has been passed by the Government for giving legal sanction for  CDP, which has led to lot of chaos among the public and impediments in its implementation by thecompetent authority. keeping in view the Supreme Court decision discussed above, anybody aggrieved by the act of such authority pertaining to their property being acquired for development plan can challenge the same in the Court of Law and the decision passed in this regard is binding on the Competent Authority.

 

 

An article about " DETERMINING THE MARKET VALUE OF A PROPERTY "

DETERMINING THE MARKET VALUE OF A PROPERTY

The guideline value of a property is documented and published by the State Government. This is a public document that indicates the minimum value of the land considered for registration.

It helps the registering officer to detect prima facie any undervaluation of property. It is left to the buyer or seller to find out through various sources what the market value of a property is. This is difficult task and can become a contentious issue during disputes involving compensation for land acquisition. How does the court view this and what methods they recommend?

Market value, in simple words, is the price that a willing prudent buyer will offer to a willing prudent seller. But in the case of land acquisition, it is not the willing seller but someone who is forced to sell. Hence there is need to have a method to arrive at a market value.

The value depends on the theory of supply and demand which again depends on various factors like the economy, purchasing capacityand laws of the land.

The Full Bench of the Madras High Court in the case of Sakthi & Co vs Shree Desigachary (2006) 2 CTC, suggested three methods to ascertain the market value of the property.

(1)Avail the opinion of experts

(2) The price paid within a reasonable time in bonafide transactions of purchase of the lands acquired or the lands adjacent to the lands acquired and possessing similar advantages. Evidence of bonafide sales between willing prudent vendor and prudent vendee of the lands acquired or situated near about that land possessing same or similar advantageous features would furnish basis to determine the market value.

(3)To arrive at a value based on the number of years passed since the last purchase of the actual or based on immediately prospective profits of the lands acquired. To explain this further one can arrive at the value by multiplying the number of years passed since last purchase with the net annual income.

The other way to arrive at the value by capitalizationmethod

The above excerpts were referred by the court in the case Mis. Greaves Ltd vs V.S. Raghava and another (2007) 4 MLJ 229

Settled Law

The court further added that "It is settled law, as laid down in the judgments referred above that in determining the market value the court has to take into account either one or the other three methods to determine the market value of the lands appropriate on the facts of a given case. According to the Supreme Court, generally, the second method of valuation is accepted as the best." The courts state that the evaluation of these factors depends on the facts of each case and there cannot be hard and fast rule.

It also adds that common sense is the best and most reliable guide. The courts stipulate that every case must be dealt on its own set pattern bearing in mind all the factors as a prudent purchaser of land in which position the officer/judge must place himself or herself in.

Defining the phrase "opinion of experts", the Madurai Bench of the Madras High Court in the case A. V. Gopalakrishnan vs. O.L.Y.R. Paramanandam (2007) 4 MLJ 189) observed that the person "should be brought under the definition of expert as required under the Indian Evidence Act".

An article about " Stamp Duty is payable on purchase of property in Public Auction "

Stamp Duty is payable on purchase of property in Public Auction

The Madras High Court has held that an instrument, whether a 'certificate of sale' or 'sale deed', issued in a public auction of properties, was chargeable with stamp duty under Article 18 read with Article 23 of Schedule I to the Indian Stamp Act, 1899.

Noting that there was an emerging trend among purchasers of properties in public auctions to seek issue of Certificates of Sale rather than Deeds of Sale, the Hon'ble High Court recalled that in Shree Vijayalakshmi Charitable Trust case [Shree Vijayalakshmi Charitable Trust vs Sub-Registrar, Erode Dt. (2009 (5) CTC 15] the view that a certificate of sale did not attract stamp duty had found acceptance. But the question as to whether stamp duty was payable on a certificate of sale was not examined in the said case on a comparative analysis of all provisions of the Transfer of Property ct, 1882, the Stamp Duty Act and the Registration act, 1908, andsues of repugnancy and the overriding effect of one act over the other, it was held.

Analyzing the Transfer of Property Act, the Hon'ble High Court recalled that the Apex Court made it clear in Raghunath vs Kedar Nath [1969 (1) SCC 497] that the documents of which registration was necessary, fell within the scope of Section 49 of the Registration Act and that if not registered, they were not admissible as evidence of any transaction affecting any immovable property comprised therein.

Under the Stamp Act

irrespective of and dehors provisions of the Registration act, a certificate of sale issued to a purchaser of property sold in public auction, was required to be stamped as per Article 18 read with Article 23 if the purchase money exceeded Rs.l 00 of Schedule I of the Stamp Act. The provisions of the Stamp Act and the Registration Act operated on parallel lines. Neither of them contains a non-abstante clause so as to exclude operation of the other. The option given under the Registration Act to makers of certain documents, to register them or not, was not to be construed as an exemption from payment of stamp duty. Therefore, the only conclusion that could be drawn by a combined reading of the three Acts was that by whatever name the instrument was called, it was chargeable with stamp duty, it was held.

In view of the above, the application was disposed of with a direction to the Official Liquidator to issue a certificate of sale or execute a sale deed in line with the choice of the auction purchaser.

An article about " Territorial Jurisdiction to try Cheque Bounce Cases "

Territorial Jurisdiction to try Cheque Bounce Cases

While hearing a petition challenging the territorial jurisdiction of a court to try an offence under the Negotiable Instruments Act, 1881, the Hannibal Supreme Court has held that only a lower court in whose jurisdiction an offence of cheque bounce is committed will try the case.

The Apex court observed that there are numerous instances where complaints are being filed at more than one place to harass an accused and held that the court cannot be oblivious of the fact that a banking institution holding several cheques signed by the same borrower can not only present the cheque for its encashment at four different places but also may serve notices from four different places so as to enable it to file four complaint cases at four different places. This only causes grave harassment tothe accused. It is, therefore, necessary to strike a balance between the right of the complainant and the right of an accused vis-a-vis the provisions of theCode of Criminal Procedure in a case of this nature. Jurisdiction of the court to try a criminal case is governed by the provisions of the Criminal Procedure Code and not on common law principle.

The Hon'ble Court has further observed that the complainants, including financial institutions and banks, while filing cheque bounce cases, should ensure that no inconvenience is caused to the accused. These observations were made by the apex court during the hearing of case between Harman Electronics and National Panasonic India (NPI) under the Negotiable Instruments Act.

Harman Electronics and NPI had entered into a transaction in Chandigarh and a cheque issued by the former at Chandigarh was dishonoured in the city itself. However, NPI had filed a complaint in Delhi, after issuing a notice from New Delhi to Harman Electronics in Chandigarh, asking the company to pay Rs five lakh.

The company then questioned the jurisdiction of the Court of Additional Sessions Judge, New Delhi, in the case. The trial court held that it had jurisdiction to entertain the complaint as the notice was sent to the accused from Delhi and the complainant was having its registered office in Delhi. The Apex court while holding the judgement in favour of the company said the Delhi High Court had no jurisdiction to try the case and the same should be transferred to the court of competent jurisdiction.

Banks need to conduct periodical inspection of mortgaged properties Whenever loans are granted by the banks and housing financial institutions to individuals for purchase of flats in an existing old apartment building, these flats are mortgaged to them, mostly, by way of equitable mortgage and in a very few cases by registered mortgage based on the facts and circumstances of those cases.

The borrowers, who avail of such loans, have to execute the loan documents for creating the security in favour of the financial institutions and the formats of these loan documents more or less contain various terms and conditions and other obligations to be discharged by the borrowers. Such terms and conditions, inter-alia, provide that the borrower shall not transfer, assign, alienate, merge, amalgamate, exchange his right, title and interest in the said mortgaged property or deal with the same in any manner whatsoever, without the prior written permission of the lending financial institutions so long the security stands with the financial institutions.

Recently it happened in a case in Mumbai wherein the existing apartment building was handed over to the developers for redevelopment who razed the building to the ground. One of the flats in the existing building was mortgaged to the Bank of India and the borrower was in default. The Bank of India invited bids for auction of the mortgaged flat and in consideration of the highest bid, to give the symbolic possession of the same. When the bidders came to know of the reality that the apartment building is razed to the ground, the bidders backed out. Now this loan is on the books of the Bank of India as a Non- Performing Asset, but without the existence of secured asset to enable the bank to proceed as per the provisions of SARFAESI Act. Thus the Bank has been left with no alternative, except to proceed against the defaulter, and the guarantors, if any, before the DRT or the Ordinary Civil Court, as the case may be, which will be a long drawn process.

In some cases, it has been observed that the offices of such lending institutions are being demolished for redevelopment and these institutions are apathetic in as much as that they do not initiate any legal action to stop such destruction of their secured assets by obtaining suitable orders from the court of competent jurisdiction. If such timely action is initiated by the financial institutions, a message will spread and all the parties involved will settle with the lending financial institutions to safeguard their interest either by way of a substituted security or repayment of their outstanding dues to enable them to avoid such hurdles to fulfill their designs.

This objective may be achieved if a mechanism is developed or established by the financial institutions to conduct inspection oftheir secured assets, particularly in resale cases, at least once in a year to ascertain the existence and status of the property and such a vigilance on their part will go a long way in the prevention of flouting the terms and conditions and the obligations by the borrowers and the societies.

n article about " SALE OF DEVELOPMENT RIGHTS TAXABLE "

SALE OF DEVELOPMENT RIGHTS TAXABLE

Thetax payer instead of developing the land, transferred the development rights in respect of part of the land to a separate construction company. As per the agreement, the tax payer jointly with the trust was required to convey the land to the proposed buyers. Instead of developing land, the tax payer parted with the development rights in respect of part of the land forever. The possession of the land had also been given during the year along with development rights. This was an independent activity having no connection with the development of the remaining part of the land. The tax payer was following mercantile system of accounting as per which income accrues when it becomes due for payment. In the instant case, the entire amount become due to the taxpayer in the relevant year on signing of development agreement and on handing over of the possession of the land. Under the mercantile system of accounting the accrual of income does not depend upon receipt of income.  Therefore, the income had accrued during the year since the transfer was complete during the year.  The postponement of payment does not stop accrual of income.  Therefore, even if part of the payments were received in subsequent years, the entire income had accrued during the year.  However, the Tribunal allowed the deduction in respect of cost of acquisition of developmentright.

 

An article about " CONSUMER DISPUTES - NATIONAL COMMISSION "

CONSUMER DISPUTES - NATIONAL COMMISSION

The Consumer Protection Act 1986, has established three forums, to redress the grievances of consumers, District Forum, State Commission, National Commission, in that order. National Commission is thehighest in hierarchy. The National Commission shall ordinarily function from capital of the country, New Delhi. The working days and hours are same as that of central government. The National Commission shall use the seal and emblem as the central government may prescribe. The Commission shall meet as and when necessary, and shall be convened by president.

Composition

National Commission consists of a president and members not less than four. One of the members shall invariably be a woman. The number of members may be more than four also. A person who is a judge of Supreme Court or has been judge of Supreme court shall be appointed as the president by Central Government in consultation with Chief Justice of India.

The members are appointed by Central Government based on the recommendations of a Selection Committee. The Selection Committee is composed of a chairman and two members. The chairman is a judge of Supreme Court who is nominated by Chief Justice of India. The Secretary Department of Legal Affairsof Government of India, and Secretary of Department dealing with consumer affairs in Government of India are members.

The members of National Commission shall not be less than thirty-five years of age, with a bachelor's degree from a recognized university with ability, integrity and standing. They should have adequate knowledge and experience of at least ten years in dealing with the problems relating to economics, law, commerce, accountancy, industry, public affairs, or administration. The composition is as such that not less than fifty percent of members shall have judicial background. The people, having knowledge and experience of at least ten years as presiding officers at district level court or any tribunal at district level are considered as persons with judicial background.

Certain people are disqualified to be members. Any person convicted and sentenced to imprisonment for an offence, which Central Government opines to involve moral turpitude, an un-discharged involvement, person of unsound mind who has been declared so by competent court, any person who has been removed or dismissed from the service of the Government or a body corporate owned or controlled by Central Government or if the Central Government opines that the person has financial or other interest which may prejudicially affect the discharging of functions as member are disqualifications. The Central Government may remove president or any member if found to be disqualified. The term of the office of president and members is for a period of five years or upto reaching seventy years of age, whichever is earlier. They are eligible for re- appointment of another five years or up to the age of reaching seventy years whichever is earlier. However such re-appointment is subject to satisfying the conditions, qualifications discussed earlier.

An article about " Union Housing Ministry unveils Model Real Estate Regulation Act "

Union Housing Ministry unveils Model Real Estate Regulation Act

To prevent unscrupulous real estate developers from deceiving gullible buyers, the Union Ministry of Housing and Urban Poverty Alleviation has proposed a bill- Real Estate (regulation of development) Act. No buildings or townships meant for sale, in future, can be undertaken, without registering them with the Real Estate Regulatory Authority to be set up in each State.

The Union Ministry of Housing and Urban Poverty Alleviation has published the draft Model Real Estate (Regulation of Development) Act to control and promote construction, sale, transfer and management of colonies, residential buildings, apartments and other similar properties through a regulatory authority which will protect public interest "in relation to the conduct and integrity" of realty firms developing housing colonies and facilitate "smooth and speedy construction and maintenance" of colonies. The Act makes it mandatory for all promoters to submit details of the approved plans of projects along with a bank guarantee equivalent to 5 per cent of the estimated cost of construction to theauthority. Besides, the promoter will also give an undertaking to complete the work in accordance with the conditions of registration. Without registration, reality firms are not authorized to sell property. After verifying the authenticity of the approved plan, the title of the property and other relevant details, the authority will register the project.

This registration will be valid for three years and has to be renewed after that. The details of the projects will be made public through the authority's website. Also, documents relating to permission from the local authority as well as building plans will be made available to public. The model Act also prevents the promoters from advertising the project before it is registered with the authority.

When violations of rules, failure to provide essential services to the developed plots are noticed or complained about, the registration will be cancelled after due verification. Failure to comply with the provisions of the Act will attract imprisonment for a term extending up to three years or a penalty. The bank guarantee provided will be forfeited, and the names of the promoters will be included in the defaulters' list and published on the authority's website. The act also provides for appeal andsetting up of appellate tribunal.

This draft Act has been published for soliciting stakeholders' opinion and the Ministry expects the State governments to pass their respective Acts, based on this model Acts, after it is finalized.

An article about " Illegal Construction/Court Rulings "

Illegal Construction/Court Rulings

Penalise Builders for illegal construction: Supreme Court

Holding that just razing unauthorised constructions is not enough, SC ruled that Offenders must be penalised for destroying concept of planned development and putting unbearable burden on the basic amenities of water, electricity, drainage, sewage.

Illegal constructions have to be dealt with sternly, a Bench led by Mr. Justice GS Singhvi. Because, they not only violate Laws but also affect various fundamental and constitutional rights of Citizens.

Unauthorised construction of buildings not only destroys the concept of planned development, which is beneficial to the Public, but also places unbearable burden on the basic amenities and facilities. At times, construction of such buildings becomes hazardous for the Public and creates traffic congestion. Therefore, it is imperative for the concerned Authorities to not only demolish such construction but impose adequate penalty on the wrongdoer, the Bench said.

The Court also censured State for going after poor while turning a blind eye to illegalities of rich and influential. Reports about demolition of hutments and jhuggis appear frequently in media, the Court pointed out, but one seldom reads about demolition of unauthorised multi-storied structures of affluent.

The failure of the State apparatus to take prompt action to demolish such illegal constructions has convinced Citizens that planning Laws are enforced only against the poor and all comprises are made by the State machinery when it is required to deal with those who have money or unholy nexus with the power the Bench said.

The Bench was hearing an appeal by Mr. Justice Dipak Kumar Mukherjee, who had sought demolition of an unauthorised building at Kidderpore in Kolkata.

An article about " COMMENCEMENT AND OCCUPANCY CERTIFICATES "

COMMENCEMENT AND OCCUPANCY CERTIFICATES

The Completion Certificate and Occupancy Certificate from the Planning authority are essential for any construction as per the provision of law. These certificates evidence that the Commencement and Completion of the building are as per the approved plan and in compliance of Locals  laws. Every body heard about the word Commencement Certificate and Occupancy Certificate.’ But practically, most of the persons who are the owners of the buildings have not at all seen how the Commencement Certificate and Completion Certificate will be. The Commencement certificate is one of the most essential documents for the Apartment Construction. Only a few builders who are developing the mega project are obtaining Commencement and Completion Certificates. Generally, for small Apartment owners, getting completion certificate is not possible because of the deviation and violation in the building construction. Some of the Financial institutions and MNCs tenants are insisting on the Commencement Certificate and the Completion Certificate from the owners of the building.

COMMENCEMENT CERTIFICATE:

After the approval of the building plan, the owner shall give notice to the authority of the intention to start work on building site in writing. Further, the owner shall give notice to the authority on completion of foundation or footings before erection of walls on the foundation.   Within 15 days from the date of receipt of such notice, the Engineering wing/authority shall inspect the site to verify as to whether the foundation work for the building conforms to the sanction plan or not.  If the foundation work is according to the sanction plan, the authority will issue commencement certificate within the prescribed period from the date of the inspection. In any case, the construction shall be proceeded according to the sanctioned plan as if the permission for the commencement of the work  is deemed to have been accorded.

Further, the authority will verify as to whether the building has been constructed in all respects as per the sanctioned plan of the building, complied with Building bye-laws, including other relevant permissions or clearances obtained from the other departments. If everything is in order, Engineering Department will issue the Commencement certificate.

OCCUPANCY CERTIFICATE:

Problems with respect to issuance of Occupancy Certificate arises on account of violation of Building laws, which is almost 95% of building in Bangalore facing the problem. Though common people have spent their hard earned money on the project with a dream of owning a house, they are unable to get the occupancy certificate because of the deviations in construction of the building. Whereas, the Builders having a good connection, escape through  various loopholes in law and extended their saleable area.

DEVIATIONS AND VIOLATION:

Wherever any construction is in violation of the sanctioned plan, the Commissioner may, if he considers that the violation are minor viz., only when the violations is within 5% of (1) the minimum set back to be left around the building (2) the maximum plot coverage (3) permissible floor area ratio and maximum height of the building and that the demolition under the Act is not feasible without affecting the structural stability, regularise such violations by issuing sanction of the modified plan with a levy of suitable fee to be prescribed. The Commissioner shall come to such conclusion only after recording detailed reasons for the same. Violations under the provision shall not include the buildings which are constructed without obtaining any sanctioned plan whatsoever and also violation, which are made inspite of the same being specifically deleted or rejected in the sanctioned plan.

CONSEQUENCE OF DEVIATION:

In general, builders and occupants are not much bothering about the Commencement Certificate and Occupancy Certificate. It is advisable to insist for the Completion certificate from the builders. Only after the receipt of completion certificate, the title will be perfected. However, the officials are not bothering at the time construction and they would not issue the completion certificate after completion of the building. People in Bangalore in general are not bothering about the completion certificate.

However, certain cases of demolition of unauthorized floors, deviations were happened very recently at Brigade Road Street and Richmond Street, in Bangalore.

Deviation is a vicious circle, which only the government can break.  Government must initiate immediate remedial action to stem the root. The authorities shall not be very rigid in granting completion certificates. If the builder has deviated a little more than the allowed percentage, the authorities may impose the huge penalty andregularize the building.

An article about " NRI HOUSING AND FINANCE IN INDIA "

NRI HOUSING  AND  FINANCE IN  INDIA

                             

Buying a house is not difficult for NRIs any more as the NRI Housing Loan makes the property investment a lot more convenient. Any individual staying abroad for employment or for carrying on business or vocation outside India or for any other purpose in circumstances indicating an indefinite period of stay abroad are eligible for NRI Housing loan. Apart from that, government servants posted abroad on duty with the Indian missions or deputed abroad on assignments with foreign Governments or regional/ inter-national agencies are also entitled to these loans.

NRI Housing loan is offered by some of the premier financial institutions and banking in India such as ANZ Grindlays Bank, ICICI Bank, HDFC, HUDCO, CITIBANK, LIC etc. As an NRI, you can avail a maximum loan of Rs.1,00,00,000/- or 85% of the

cost of the property including the cost of  land, whichever is lower. The rate of interest will vary from 11.25% to 14.25% per annum depending on the financial institution. At the time of making application for the loan a processing fee is payable which will vary between 1% to 2% of the loan amount applied for depending on the institution.

The amount of loan to be borrowed will depend upon a person's repaying capacity. To arrive at the repaying capacity banks do take into consideration factors such as income, age, qualifications, work experience, number of dependants, spouse's income, assets, liabilities, stability and continuity of occupation, alternate employment prospects when the concerned person returns to India and savings history.

While applying for a home loans in India the following documents are to be submitted along with the application:

1. Employment/Residency related documents

• Ÿ  Employment contract
• Ÿ  Latest salary slip.
• Ÿ  Latest work permit.
• Ÿ  Identity card issued by the present  employer.
• Ÿ  Visa stamp on the passport.
• Ÿ  Continuous Discharge Certificate (if applicable).
• Ÿ  Overseas Bank Account Statement for the last few months.

2. Property Related Documents

• Ÿ  Receipts for payments made for purchase of the dwelling unit.
• Ÿ Copy of approved drawings for the proposed construction/purchase/ extension.
• Ÿ  Agreement for sale/sale deed.
• Ÿ A detailed cost estimate from Architect/Engineer for property to be purchased/ constructed / extended.
• Ÿ  Allotment letter.

Once the loan is sanctioned, the period of repayment of the loan is determined which normally falls in the range of three to ten years. Loan can be repaid through Equated Monthly Installments (EMIs) comprising principal and interest. EMI payments can  be made through post dated cheques from your Non-Resident (External) Account/Non-Resident (Ordinary) Account in India.

An article about " Law of Limitation "

Law of Limitation

Every person has a right to approach courts to seek justice. There are various laws enacted by the central and State governments regulating the rights of citizens and procedure of juridical proceedings. Law of limitation is a restrictive law, where the rights of the persons to approach courts are regulated, with the time factor being important. A person has to approach the court within certain prescribed period if not his right to seek Justice through courts is lost. Law of limitation is both adjective and substantive law. Though superficially law of limitation seems to curtail the rights of the citizen, it is actually proactive, forcing to approach the court within the limitation period. If not people would have waited, might have dug out the graves, to open age old litigations and courts would have flooded with cases. One may imagine the situation in the country in the absence of limitation law, as even now there is backlog of cases in all the courts.

Contents:

The law of limitation which was enacted in 1908, had certain inherent defects and short comings, which were exposed by various judicial verdicts. The act was revised  simplified, came into force from 1st January 1964. The act contains 32 sections and137 articles; where as the act of 1908 had 30 sections and 183 articles. The sections deal with the general principles applicable to the extension of time, whether by reason of disability, acknowledgement and part payment. The sections are divided into five parts; part 1 is preliminary, part IInd deals with limitation of suits,  appeals and  applications, part IIIrd deals with computation of period of limitation, part IVth deals with acquisition of ownership by possessions and part Vth deals with saving provisions. Out of 183 articles, articles from 1 to 149 deal with suits, articles 150-157 deal with appeals, articles 158 to 183 relate to applications. The revised Act has some salient changes; the most  important being the maximum period of limitation is 30 years, which is available to three kinds of suits.

1. Suits by mortgagors for the redemption of recovery of possession of immovable property.

2. Suits by mortgagee for foreclosure

3. Suits by or on behalf of Central government or State government including state of Jammu and Kashmir.

    The old Limitation Act has prescribed 60 years as limitation  period to suits to redeem or recovery possession of immovable property mortgaged. The second longest period of  limitation is 12 years, prescribed for various kinds of suits relating to immovable property trusts and endowments. The limitation period for contracts, accounts, declaratory suits, suits relating to decrees, instruments and suits relating to movable property is three years. The limitation period varying from one to three years is prescribed for suits relating to torts and miscellaneous suits and also in respect of suits for which no specific period of limitation is provided in the  schedule to the Act.  A minimum limitation period of 10 days is prescribed for applications for leave to appear and contest a suit under summary procedure from the date of summons.

Important Sections:

We shall discuss some important sections. Importantly, the Limitation Act considers all the instruments be made with reference to Gregorian calendar, where the years are computed from the date of the birth of Christ which is widely used. The present year is 2004 according to Gregorian calendar. Another Important provision is  legal disability. The person who is   entitled to file a suit may be suffering from legal disability at the time from which the limitation period starts, such as minority, insanity etc.  In case of such persons, the limitation period starts after the legal disability is cured. In case of the legal disability continues until the death, his legal heirs may institute the suit, within the same limitation period after the death. In case the person under legal disability dies after the disability is cured but within the limitation period allowed, his legal representative may institute the suit within the same period, after the death as otherwise would have been available to the   person had he not died. To be more clear we shall study an illustration.  Mr. A has lent some amount to B on the  security of demand pro note.  The limitation period is three from the date of pro note. But Mr. A was suffering some legal disability during the period of three years and recovers in the fourth year. The limitation period of three years starts from the fourth year. But A will nor institute any suit and dies at the end of fifth year. Mr. A had a balance period of limitation of one year.  So his legal representative may institute a suit within one year after the death of A.

Expiry of prescribed period whencourts closed:

The limitation period may expire on a day, when the court is closed. In such cases the suit may be filed on the date when court re-opens. Thus the Court holidays are excluded while computing the limitation period.

Extension of period in certain cases

If a person could satisfy the court, that he had sufficient reasons for not preferring an appeal during the limitation period, the court may admit the appeal, even after the expiry of limitation period.

Any suit, appeal application made after the prescribed period is liable to be dismissed except where specific provisions are made. The dates of instituting suits, preferring appeals or making applications will be considered as follows.

A suit is said to be instituted when the plaint is presented to the proper officer.

In case of a pauper when his application for leave to sue as pauper is made.

In case of a claim against a  company, which is being wound up by the court, when the       claimant sends his claim to the official liquidator.