An article about " RIGHT TO INFORMATION ACT CAN BECOME HANDY AGAINST CORRUPTION "

RIGHT TO INFORMATION ACT CAN BECOME HANDY AGAINST CORRUPTION

Corruption is rampant in most of the Government departments. The money and the wealth unearthed by the Karnataka Lok Ayukta during rides in recent past on the offices and residential premises of the corrupt Government officials would prove that the height of corruption in Karnataka is unimaginable. What the Karnataka Lok Ayukta has unearthed is only a decimal of a bigger proportion. There are lots of such corrupt elements in Government departments who need similar treatment by the Lok Ayukta. It is a known fact that unless the officials are bribed, nothing works. In most of the Government departments, right from the lowest level to the top level, corruption is prevalent. Citizens are greatly disturbed and distressed by these corrupt practices.

With the enactment of the Right to Information Act, 2005, by the Parliament, a ray of hope has emerged in the minds of the public to get the official machinery work in a corrupt free atmosphere since this Act gives power and paves the way for the honest citizen to get their official work processed without undue delay. If used properly, this Act could become a weapon to bring down the corruption in Government departments. A very encouraging development as far as this Act is concerned is that it is just not restricted to Government and Municipal Corporations but also includes all public authorities viz. organizations, NGOs and other bodies which are financed by the Government. The Right to Information Act is indeed a very beneficial Act for the common man and if used in a proper way, it may lead to less sleaze and more transparency.

The Right to Information Act, 2005 which has come into with effect from 12'h of Oct 2005 could help the property industry to a great extent since the land and building related documents which could not be procured easily from the Government departments viz. Taluk Office, Corporation Office, Sub-Registrar Office, Survey Department, Assistant Commissioner's Office etc., without greasing the palms of the officials can now be insisted on to be furnished, studied and verified well in advance before embarking on any project by invoking the provisions of the Right to Information Act.. Section 2(j) of the Act defines the 'right to information' as.

'Right of Information' is the right to acquire information accessible under the Act which is held by or under the control of any public authority and includes the right to

a) Inspection of work,documents, records

b) Taking notes, extracts or certified copies of documents or records

c) Taking certified samples of material

d) Obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device.

Thus, by invoking the provision of the Right to Information Act, an applicant who has been unsuccessful in getting his building plan sanctioned or there is inordinate delay in obtaining such sanction despite the plan complying all the statutory requirements and bye-laws prescribed can now put the BBMP administrative machinery to work speedily by seeking, inter alia, the following questions to be answered by the Public Information Officer of the department.

Further, he is now entitled to ask for the inspection of documents, records, take notes and obtain certified copies.

a) What is the status of his plan?

b) How many other plans were submitted on the day on which plans was submitted by him?

c) Out ofthose plans, how many have been sanctioned?

d) What has happened to all the other plans?

Appointment of Public Information Officer

Under the Act, it is imperative for all the administrative offices of public authorities to appoint a Public Information Officer. He will act as a catalyst between the applicant who wants the information on the one side and the department on the other.

Nominal fee is collected for furnishing the information under the Right to Information Act. In normal course, the information sought for should be provided within a period of one month. If there is delay in providing the information or deliberate refusal to part with the information, the PIO is penalized at Rs. 250/- for every day's delay until the information is provided to the applicant. This penal provision may drive the PIO to act fast and provide the information sought for. It is a requirement that the name of the PIO should be prominently displayed in all offices. If the name and address and telephone number of the IO is not forthcoming in any organization, or the PIO is not available, the applicant can seek information by addressing his request letter to the PIO of the head office of the concerned department. If any application is submitted to the PIO who has no jurisdiction over the matter in question, then such PIO shall forward the application to the appropriate PIO.

Even after lapse of one month, if the information sought for under the Act is not provided satisfactorily by the concerned department or the department refuses to furnish the information, the aggrieved person can go on appeal against the decision of the PIO to the appellate authority who by default will be the official senior of the said PIO of the same department. If aggrieved by the decision of the Appellate Authority, the affected person may complain to the State or Central Information Commissioner which is an independent constitutional authority.

Information which affect the sovereignty and integrity of India or security, strategic, scientific and economic interest of the state relation with foreign state and certain information as mentioned in Sections 8 & 9 of the Act may be denied to be furnished.

By invoking the provisions of this Act by the public, the administrative machinery can be put on the right track which in turn can help in the reduction of corrupt practices.

An article about " TAX ADVANTAGE ON HOME LOANS "

TAX ADVANTAGE ON HOME LOANS

An article about " Legalising building fraud will lead to disaster- High Court "

Legalising building fraud will lead to disaster- High Court

The Bombay High Court, while hearing petitions seeking to legalise illegal structures in various parts of the city, has ruled that Regularization of unauthorized constructions will have to be permitted on a case-to-case basis and should not be granted as a matter of course.

A division bench of the High Court held that the planning authority had to consider various factors such as infrastructure, congestion, water supply, and roads before regularizing illegal constructions against payment of a penalty.  If there is an increasing pressure and burden on the existing facilities and amenities then the whole system would collapse resulting in large-scale inconvenience, it was observed.

The cases before the Hon'ble Court pertained to regularization of various structures in Bandra, Goregaon, Boriveli, and Pydhonie apart from the top 17 floors of Gaurav Gagan, a 24-storeyed building in Kandiveli (West).

The Hon'ble High Court further ruled that it cannot be said as a matter of general rule that unauthorized constructions must be regularized if the floor space index (FSI) is available or can be generated in the form of transfer of development rights (TDR) from other sources by the builder. Although section 53(1) of the Maharashtra Regional Town Planning Act provides for regularization of unauthorized structures, the indiscriminate regularization through TDR or FSI can have disastrous consequences. Before the authorities take any decision about regularization they must not only consider the alleged hardship to individual flat purchasers but also the interest of those living in the neighbourhood and the public at large.

An article about " The Income Tax Ombudsman Guidelines 2010 "

The Income Tax Ombudsman Guidelines 2010

The Income tax Ombudsman Guidelines are introduced with the objective of enabling the resolution of complaints relating to public grievances against the Income Tax Department and to facilitate settlement of such complaints.

The Ombudsman shall be independent of the jurisdiction of the Income Tax Department. The offices of Income Tax Ombudsman shall initially be located at New Delhi, Mumbai, Chennai, Kolkata, Bangalore, Hyderabad, Ahmedabad, Pune, Lucknow, Bhopal and Kochi.

GROUNDS ON WHICH COMPLAINT CAN BE FILED:-

A complaint on anyone or more of the following grounds alleging deficiency in the working of theIncome-tax Department may be filed with the Ombudsman:

(a) delay in issue of refunds beyond time limits prescribed by law or under the relevant instructions issued from time to time by the Central Board of Direct Taxes;

(b) sending of envelopes without refund vouchers in cases of refund;

(c) non adherence to the principle of 'First Come First Served' in sending refunds;

(d) non acknowledgement of letters or documents sent to the department;

(e) non up-dating of demand and other registers au leading to harassment of assesses;

(f) lack of transparency in identifying cases for scrutiny and non communication of reasons for selecting COl the case for scrutiny;

(g) delay in disposing cases of interest waiver;

(h) delay in disposal of rectification applications;

(i) delay in giving effect to the appellate orders;

(j) Delay in release of seized books of account and assets, after the proceedings under the Income-tax Act in respect of the years for which the books of account or other documents are relevant are completed;

(k) Delay in allotment of permanent account number (PAN);

(l) Non credit of tax paid, including tax deducted at take! source;

(m) Non adherence to prescribed working hours Income Tax officials;

(n) Unwarranted rude behavior of Income Tax officials with assesses;

(0) any other matter relating to violation of the administrative instructions and circulars issued by the Central Board of Direct Taxes in relation to Income-tax administration.

PROCEDURE FOR FILING THE COMPLAINT

Any person, who has a grievance against the Income-tax Department, may, himself or through his registers authorized representative, make a complaint against the Income-tax official in writing to the Ombudsman.

(a) The complaint shall be duly signed by the complainant and his authorized representative, if any, and shall state clearly the name and address of the complainant, the name of the office and official of the Income-tax Department against whom the complaint is made, the facts giving rise to the complaint supported by documents, if any, relied on by the complainant and the relief sought from the Ombudsman;

 (b) A complaint made through electronic means shall also be accepted by the Ombudsman and a print out of such complaint shall be taken on the record of the Ombudsman.

(c) A print out of the complaint made through electronic means shall be signed by the complainant at the earliest possible opportunity before the Ombudsman takes steps for conciliation or settlement.

(d) The signed printout shall be deemed to be the complaint and it shall relate back to the date on which the complaint was made through electronic means.

No complaint to the Ombudsman shall be kept pending unless:-

(a) the complainant had, before making a complaint to the Ombudsman, made a written representation to the Income Tax authority superior to the one complained against and either such authority had rejected the complaint or the complainant had not received any reply within a period of one month after such authority had received his representation or the complainant is not satisfied with the reply given to him by such authority;

(b) the complaint is made not later than one year after the complainant has received the reply of the department to his representation or, in case, where no reply is received, not later than one year and one month after the representation to the Income Tax Authority.

(c) the complaint is not in respect of the same subject matter which was settled through the Office of the Ombudsman in any previous proceedings whether or not received from the same complainant or along with anyone or more complainants or anyone or more of the parties concerned with the subject matter;

(d) the complaint is not frivolous or vexatious in nature.

No complaint shall be made to the Income-tax Ombudsman on an issue which has been or is the subject matter of any proceeding in an appeal, revision, reference or write before any Income-tax Authority or Appellate Authority or Tribunal or Court.

An article about " AGREEMENTS FOR SELLING OF IMMOVABLE PROPERTY "

AGREEMENTS FOR SELLING OF IMMOVABLE PROPERTY

The pre-requirement of sale of immovable property is agreement to sell. The agreement to sell contains, terms of sale, consideration, time limit, the complete description of property agreed to be sold, terms of payment, handing over possession and rights of both the partiesto enforce the agreement, and penalty for not performing the contract. Generally, the purchaser pays some amount as advance amount, earnest money to seller, which is acknowledged by the seller in the agreement.

Importance of Sale Agreement:

The sale deed is a document, which contains general terms, which are similar in most of the deeds.

But the agreement to sell is a specialised document, which conceptualises the terms of contract. The skill, knowledge, experience of the advocate is reflected in drafting the agreement to sell and the clauses inserted to protect the interest of the purchaser, who has parted with his money.

There is a practise among many to avoid the sale agreements and to go directly for sale deeds. This is very risky. Agreement to sell is required to avail the bank finance. Apart from availing finance without a sale agreement nobody is bound to execute sale deed and convey the property, who may back out at the last moment. Though the purchaser had made all the arrangements for the consideration amount and stamp duty the vendor may back out if he finds another purchaser for better consideration. Likewise, even the purchaser may also back out if he finds similar property for lesser consideration. The sale agreements bind all the parties to perform the contract.

The process of sale is governed by the provisions of Transfer of Property Act. If there is any conditions in agreement to sell which vary from the rights and obligations of the seller, purchaser as detailed in Transfer of Property Act, the terms which are agreed in agreement to sell shall prevail over. If no conditions, are mentioned in agreement, the rights and obligations of seller, purchaser as detailed in Transfer of Property Act comes into force. Having paid the advance amount, (or) earnest money, will the purchaser have any charge, lien over the property for the amounts paid. The Transfer of Property Act governs the rights and obligations of vendor and purchaser.

Rights of Agreement Holder:

In case of sale, the purchaser gets title andownership to the property only if the transfer is affected in accordance withthe law u/s 54 of T.P. Act, dealing with sale of immovable property.  Sec 54 of T.P. Act states that – “Sale how made – such transfer in the case of tangible immovable property of the value of one hundred rupees and upwards, --- can be made only be registered instrument.”  So registration of the sale deed is mandatory and only thereafter the purchaser gets title. It also states that the agreement to sale itself does not create any interest in or charge on such property. In this kind of situation if the seller refuses to transfer the property under agreement to sale then the questions that arise for consideration are:

Ø  Whether purchaser under agreement to sale is entitled to only damages or else immovable property as per agreement?

Ø  If the purchaser under agreement to sale is in possession of immovable property can he be disposed of immovable property?

So far as first question is concerned Sec 40 of Transfer of Property Act states that “ Where a third person is entitled to the benefit of an obligation arising out of contract and annexed to the ownership of immovable property but not amounting to interest therein or easement thereon, such right or obligation may be enforced against a transferee with notice thereof

Ex: – “A Contracts to sell a house to ‘B’ while the contract is still in force he sells the same house to ‘C’ who has notice of the contract.  ‘B’ may enforce the contract against ‘C’ to the same extent as against ‘A’.  From this we find that, the purchaser with notice of a previous contract for sale of the same property is in the eye of the law is a trustee of the prospective purchaser of previous agreement of the property so purchased.  Even u/s 91 of the Trusts Act, the title of the subsequent purchaser with notice of the prior agreement is subject to the obligations created by the agreement to sell. So, the agreement holder may proceed against a purchaser of the property who had notice of contract prevailing. Sec 27 (b) of the Specific Relief Act entitles the purchaser under agreement to sell to compel subsequent purchaser to execute a sale deed in his favour. 

In order to have better hold on the property agreed to be purchaser the agreement to sell may be registered, and a paper notification may be released to notify the general public about the agreement.

Purchaser in possession of the property:

For the second question as said earlier i.e., if the purchaser under agreement to sale is in possession of the property, can he be dispossessed of the immovable property?

In this regard Sec. 53-A of the T.P, Act 1882, provides that :-

1. The transferor i.e., seller has agreed to sell for consideration any immovable property.        
2. Such agreement is in writing and signed by him.
3. The contract provides for taking possession of the property before execution and registration of sale deed.
4. In part performance of the contract, the seller has put the purchaser in possession of the property agreed to be sold.
5. The purchaser under agreement being already in possession continues in possession in part performance of the contract, provided that the purchaser has done some act in furtherance of contract.
6. The purchaser under agreement has performed or is wiling to perform his part of the contract.

Then purchaser under agreement is entitled to protect his possession of immovable property.  While agreement of sale is subsisting; some one who purchases the property with notice of prior agreement of sale his right; is subject to such prior agreement to sale.

It is to be noted this benefit can be availed of only by those who were put into possession by virtue of a legal document.  A person seeking protection of doctrine of part performance has to prove that he has in part performance of the contract has taken possession of the property and in case he was already in possession he continues to be in such possession in part performance of the contract and had done some act in furtherance of the contract. In addition the purchaser under agreement has to show that he is willing to perform his part of the contract. The only course for seller in such cases is to see for payment of balance consideration.

The maximum stamp duty payable on agreement to sell without possession in Karnataka is Rs.200/- and registration charges are Rs.1,000/-.

An article about " Banks Move to Recover Rs.3K-Cr Dues from Zoom Developers "

News Line - Banks Move to Recover Rs.3K-Cr Dues from Zoom Developers

A consortium of 25 State-owned Banks have started a process to salvage Rs.3,002 Crore from engineering procurement and Construction Company,Zoom Developers, and its Promoters.

United Bank of India, authorised by other 24 Banks, has taken over a 3.4 acre land parcel in Andheri suburb of Mumbai, offered by Zoom and its Promoters as collateral for the debt.

They have started the process of recovering the dues by taking possession of properties and various other securities provided by them (Zoom, its Promoters and Loan Guarantors) as collateral. However, they did not provide the details of properties that have been received as collateral from Zoom and its associates while securing loans. They will be following the process during the time frame by when all such properties will be auctioned to recover dues.

The 3-4 acres of land parcel at Chakala in Andheri was owned by Magnificent Constructions, a Guarantor for Zoom and its Promoters’ debt. According to Property Consultants, the aforesaid land parcel can help the Banks realise not more than Rs.450-500 Crore even at peak rates. This amount is a little over 10% of the Banks’ debt and interest exposure of over Rs.3,000 crore.

The Banks have taken the action to attach the collateral property after Zoom Developers, its Promoters Vijay Choudhary and BL Kejriwal, and its Guarantors failed to repay the said amount despite demand notices earlier this year.  Several media reports suggested that Zoom Group is engaged in various businesses, including engineering and project management services, development of industrial and infrastructure projects, information technology, business process outsourcing and telecom. None of the Builders are aware of Zoom Developers as a Property Developer even after the issue of huge debt that has been classified by public sector Banks as non-performing assets.

According to reports, the Central Vigilance Commission (CVC) was close to finalising disciplinary action against officials of 25 Banks, that provided loans worth Rs.2,650 crore to Zoom Developers.  Some of the major Banks that have exposure to Zoom Developers include SBI, Punjab National Bank and Bank ofBaroda.

An article about " Builders to pay for deficiency in service "

Builders to pay for deficiency in service

A consumer forum held a builder guilty of deficiency inservices after bungalows he was supposed to provide two families at Karjat were delayed, and were not according to specifications in the agreement.

Chetan Suchak of Suchak Properties was ordered to hand over the bungalows according to the agreement and pay the complainants from Kalyan, Gyanendra Verma and Gajinder and Sudha Saini Rs.2.30 lakh compensation for financial hardships and mental agony caused due to the delay.

The South Mumbai district consumer disputes redressal forum refuted the builder's claim that he did not give possession as the complainants refused to pay certain taxes and maintenance. It said that the builder has used unfair trade practices since he sought maintenance without handing over possession, which was against the law.

On January 17,2007, the Sainis booked a 451 sq. metre plot on which a 700 sq.ft bungalow would be constructed for Rs.13. 7 lakh, while on March 13, 2007, Verma had booked a 180 sq. meter plot in that area for Rs.11.12 lakh. The complainants said that according to the agreement the builder was to hand over possession of both bungalows with amenities within 210 days or by July 27, 2007. Both complainants paid the builder the entire amount before construction began.

Verma said that even after seven months of the agreement, the builder did not start construction, which was a deficiency in service. He also stated he had to take a bank loan to buy the property.

The complainants paid the builder additional money after he stated that the prices of raw materials had risen. According to the Sainis, the builder had not done the fencing around the house and neither was the approach road constructed. "Even water and electricity connections were not in place," they said in the complaint. The builder had also used plaster of Paris instead of cement for the interiors. "The builder cheat edus and caused us financial damage," they added.

In August 2008, the complainants sent notices to the builder seeking possession within 15 days. However, the builder sent back a notice saying that he had withdrawn from the agreement. Finally, they filed complaints in the forum on October 6, 2008.

The builder refuted the allegations and claimed henever received the money. He also said that the complainants changed their plans, which led to the delay.

The forum ordered him to pay Rs: 1 lakh each for causing financial hardship, Rs.I0,000/- for mental agony and Rs.5,000/- towards costs of litigation.