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New Category added in Booz Allen List - Disputes relating to Trusts are Non-Arbitrable

reema rai 3 Feb 2017

Introduction In the instant case (Vimal Kishor Shah and Others v. Jayesh Dinesh Shah and Others, Civil Appeal No. 8164 of 2016), an Appeal was filed against the Judgment of the High Court read more

Introduction

In the instant case (Vimal Kishor Shah and Others v. Jayesh Dinesh Shah and Others, Civil Appeal No. 8164 of 2016), an Appeal was filed against the Judgment of the High Court which had allowed the Application under Section 11 of the Arbitration Act of the Respondents and appointed an Arbitrator to decide the dispute between the parties.

The brief facts are that there was a Family Trust Deed made by the “Settlor”. The Settlor out of love and affections made his family members, who were minors, as Beneficiaries of the Trust and two other persons were appointed as the Managing Trustees.

Clause 20 of the Trust Deed laid down that all the disputes in relation to the Trust shall be decided in accordance with the provisions of the Indian Arbitration, 1940 and the decision of the Arbitrator shall be final and binding.

However, some differences cropped up in the functioning and management of the Trust. The parties could not agree to appointment of any Arbitrator and hence, an Arbitration Application for appointment of Arbitrator was filed by the Respondents. The Appellants contended that the Section 11 Application is not maintainable as neither the Beneficiaries nor the Trustees were parties to the Trust Deed as they did not sign the same and the Trust Deed cannot be termed as an ‘Agreement’ within the meaning of the Section 7 of the Arbitration Act of 1996. As per the Appellants, there must be a valid and enforceable agreement to invoke Section 11 of the Arbitration Act, 1996.

The High Court dismissed such contentions raised by the Appellants and held that since parties to the Application were minors at the time of execution of the Trust Deed, they were incapable of signing the Trust Deed and now that the parties have attained the majority, they could be termed as ‘Party’ to the Trust Deed within the meaning of Section 2 (h) of the Arbitration Act, 1996 and are free to invoke the Arbitration Clause under the Trust Deed. Hence, an Arbitrator was appointed and the Application was allowed. Aggrieved by this, the Appellants approached the Supreme Court.

Arguments raised by the Appellants in the Supreme Court

1. When parties to the Application, who are Beneficiaries of the Trust, did not sign the Trust Deed, they could not be held parties to such Trust Deed.

2. For filing an Application under Section 11 of the Arbitration Act, 1996, there must be in existence a valid and enforceable arbitration agreement and such agreement, should be reduced in writing and lastly, it must be signed by the parties to the application as provided under Section 2(h) read with Section 7(4) of the Act.

3. Trusts are governed by the Indian Trusts Act, 1882, which is a complete code to deal with the such matters. Thus, the provisions of the Arbitration Act for deciding any dispute relating to affairs of the Trust cannot be made applicable in such a situation where there is already a remedy available under the Trust Act.

Arguments raised by the Respondents in the Supreme Court

The Order of the Supreme Court merely states that the Counsel for the Respondents supported the reasoning and the conclusion arrived at by the designated Judge and prayed for its upholding calling no interference therein in this appeal. The Hon’ble Court further stated that he also elaborated his submissions by referring to some provisions of the Act and case laws.

Question of Law framed by the Court

Whether an Arbitration Clause in a Trust Deed, can constitute an “Arbitration Agreement” within the meaning of Section 2(b) and 2(h) read with Section 7 of the Arbitration Act, 1996?

Held

The Court discussed Section 2 (h) and Section 7 of the Arbitration Act and said that to constitute an Arbitration Agreement, the requirements under Section 7 must be strictly satisfied i.e. firstly, there must be an agreement; secondly, it must be in writing; thirdly, the parties must sign such agreement and lastly, there must be an Arbitration Clause in the said Agreement.

To substantiate the abovementioned reasons, the Hon’ble Court relied on Vijay Kumar Sharma Alias Manju v. Raghunandan Sharma Alias Baburam & Ors., reported at (2010) 2 SCC 486. This case involved Arbitration Clause in a Will made by the Testator and it was held that if a Will contains a reference of disputes to Arbitration, it would be merely an expression of a wish by the Testator that the disputes should be settled by Arbitration and cannot be considered as an Arbitration Agreement among the Legatees/Inheritors.

The Hon’ble Court in the present case relied upon the abovementioned case law and stated that there is no significant difference so far as the applicability of the principle of law laid down in Vijay Kumar Sharma to the facts of the case at hand is concerned. According to the Court, in both the cases, the Testator/Settler is the one who signs the Document alone. The interest is conferred upon the Inheritors/Beneficiaries. Even though the Inheritors/Beneficiaries accept the Will/Trust Deed, they do not sign documents and are not regarded parties to such Will/Trust Deed.

The Hon’ble Court also drew analogy with the provisions of Contract Law where in there is always a Proposal and then its acceptance, to constitute any such arrangement as an Agreement. Same is not true in the case of Trusts because there is no Agreement between the Beneficiaries as such. Hence, the Hon’ble Court held that the Arbitration Clause in a Trust Deed does not satisfy the rigour of Section 2 (h) and Section 7 of the Arbitration Act, 1996.

The Hon’ble Court also took recourse to the Booz Allen & Hamilton Inc. v. SBI Home Finance Limited & Ors., reported at (2011) 5 SCC 532. In this case, the meaning of the term ‘Arbitrability’ was discussed and the Court laid down various categories of disputes that are non-arbitrable such as guardianship matters, insolvency matters, testamentary matters etc. that are governed by Special Statutes. According to the Hon’ble Court, the Trust Deed is also governed by the special law i.e. the Trust Act. The Court said that even though there is no express bar of applicability of other laws for deciding the disputes arising under the Trust Act, yet there exists an implied bar of exclusion of Arbitration Act, 1996 as there are sufficient remedies available under the Trust Act to deal with any such disputes.

Thus the Court held that the disputes relating to Trust, trustees and beneficiaries arising out of the Trust Deed and the Trust Act are not capable of being decided by the arbitrator despite existence of arbitration agreement to that effect between the parties. Hence the Appeal filed by the Appellants was allowed and the Order of the High Court was set aside and Application under Section 11 of the Arbitration Act, 1996 was held to be non-maintainable.

Opinion

The Hon’ble Court vide this Judgment has added a new category to Booz Allen list of non-arbitrable disputes. The implications of this Judgment are going to have far reaching consequences in the future. A detailed critique of this Judgment shall be given in the post.

Author: Suyash Verma

Source: desikanoon

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Why every Indian needs to understand the Benami Act

shyam roy 1 Feb 2017

After Demonetization move numerous raids by authorities leading to seizures of thousands of crores in illegal wealth, the Income-Tax department has launched a new crackdown and this time it is on benami read more

After Demonetization move numerous raids by authorities leading to seizures of thousands of crores in illegal wealth, the Income-Tax department has launched a new crackdown and this time it is on benami properties – something that many had feared would happen once the worst effects of the note ban have blown over. The Narendra Modi led NDA government has been targeting black money holders and their properties in order to eradicate corruption.

Buying property in your parent’s name may lend you seven years in jail. According to the Benami Transactions (Prohibition) Amendment Act 2016, which came into force on November 1, last year unless you are a joint holder in the property with your mother, father, or sibling you could go to jail for indulging in benami transactions.

‘Benami’ is a Hindi word meaning “nameless” or “without name”. This Act uses the word ‘benami’ to define a transaction in which the actual beneficiary is not the one in whose name the property is purchased – who is basically an identity cloak – the “benamidar”.

The actual beneficiary is the person financing the deal. Mostly, who usually keeps the property papers and also retains the power of attorney to sell the asset.

What really is Benami Property?

Assume if a person wants to buy a property, which might be a plot of land or an apartment, a bungalow or a commercial space. Then that person who pays the actual price of the property should ideally become the owner of the property. But the story is little twisted, in many cases. For a property, how big or how small, should be registered in the name of the buyer. In many cases, people pay the price of the property but choose to register the property in the name of a third person. This means the property is in the name of someone and some other person is paying the price for it. That kind of property which is brought under the name of third person is termed as benami property. Mostly, the benami properties are brought in the name of closed relatives like brother, sister, uncle, etc. So under the new bill, this practice will come to a halt and only property can be brought in self’s name.

Benami Transactions (Prohibition) Act of 1988 and the Benami Property Bill of 2015

In India, the fight against the illegal or benami properties started back in the year 1988. In that year, an act named BTA was passed to make the transaction of properties and register them to other’s name. This step was taken to eradicate the menace of black money which has crippled the Indian economy for years and is a major blot in the country’s future. Now After the Modi government came to power, Finance Minister Arun Jaitley introduced the amended bill – with 71 sections – in the Lok Sabha.

The Central Board for Direct Taxes (CBDT) has now notified that the provisions of the Benami Act would come into effect from November 1, 2016, and that it has been renamed as the Prohibition of Benami Property Transactions Act, 2016 (PBPT Act).“The PBPT Act defines benami transactions, prohibits them and further provides that violation of the PBPT Act is punishable with imprisonment and fine,” the CBDT notification issued on December 2 said. “The PBPT Act prohibits recovery of the property held benami from benamidar by the real owner. Properties held benami are liable for confiscation by the Government without payment of compensation.”

Criteria for a property to be considered as benami

Benami property bill of 2015 specify, there are several criteria out of which if one is satisfied, that property will be deemed as benami and strict action will be taken as per sections of law. The criteria for a property to become benami are as follows:

The purchased property has been registered under the name of a fictitious person who does not exist in reality, i.e. the property is brought in a false name. example, Mr. A is the buyer of a property and pays full price of the property. But the registered and ownership recorded with the govt. is under the name of Mr. B. And the matter of fact is Mr. B does not exist in reality and is a false identity. Then that property will be considered as a benami property.

The property belongs to a person and is under his/her possession, but the actual price of the property is being paid by third person. For example. Mr. A has brought a piece of land. Mr. A has paid the price of that land as well as all other costs of registering the land. But while registration, the ownership of the property has been given to Mr. B. The owner i.e. Mr. B may be a friend or relative to Mr. A and knows the whole scenario. Then also the piece of land will be considered as benami property and Mr. B will be a benamidar which means owner of a benami property.

The owner of the purchased property is unaware of the fact that the property belongs to him/her i.e. a property is brought under a person’s name without his/her consent. Suppose a person buys a apartment in the name of his/her uncle. But his uncle is unaware of the fact that the apartment is registered under his name. This means the entire transaction of property has been done without the consent of the owner. Then, that apartment will be marked as a benami property.

The buyer of the property who made the fictitious payment or is untraceable but the property is registered in someone’s name. This is another case where suppose a property is registered under your name but the person who has made the property transaction is fictitious or is untraceable. Then you are just a benamidar and are in possession of a benami property.

Exceptions & Exclusions where the property will be not considered benami under the Benami Property Bill, 2015

The Govt. of India has set some guidelines under which a property will be termed as benami. But there are also certain exclusion and exceptions scenarios when the property will not consider as benami and will be perfectly legal to posses. Below are some conditions which will not make a property benami and will be accepted under law:

Property which is brought under the name of a husband or person’s wife will not be a benami property. This means assume a person pays for the property but is making his wife, the registered owner of the property. Then the property will be absolutely legal. Same is the case for women buying properties in name of their husbands.

Property brought under the ownership of daughter who is unmarried. Before marriage of your daughter, you can buy a property in her name. Buy after marriage, it will be against the Benami property bill and will be termed as benami property.

Property transferred with partly transfer procedure will be exception from being considered as benami property. Suppose if you own a property and are willing to change its ownership. You have started the necessary property transfer formalities legally, under the Property Transfer Act of 1882. Then your property will be legal and will not be benami.

General Power Of Attorney will be excluded from making benami property. GPA property means that property which has been given from one person to another under the rule of power of attorney. If there is a legal & legit paper work of the power of attorney procedure against a property, then it will be exempted from being considered as benami property.

Joint ownership of properties with valid legal documentation are also not benami. Properties can be jointly purchased and registered in multiple names. So the joint properties with proper payment and documentation will not become benami. You can own joint property with your son, wife, sibling, business partner, etc.

Some special provisions for the HUF families living in India related the benami property. A Property buyer who belongs to a HUF and is the leader or karta of the family can buy the property in the names of the family members. But there must be full legit documentation and the funds used to buy the property should be accounted at any point of time. Another important condition for the HUFs is that the karta must have the fiduciary capacity i.e. the power to handle the money matters of the HUF family.

If a property has been already declared under Income Declaration Scheme, 2016, the property will not be booked as a benami property. The central govt. issued a circular for declaring such properties and money which were not declared earlier. The govt. pressed some penalty on those benami properties & black money, imposed tax on it and made it legal. So properties which are already declared under the IDS will be exempted from being ceased by the govt.

Beneficiary is not the owner

For better understanding of benami properties and its logic, the example of beneficiary and owner is described here. You are paying the price of a property and are making your sister the registered owner. But your sister is not using the property or not getting any benefits from it. But, by taking this step, you are drawing benefits like saving on loan interest rates, saving taxes, getting rebate on stamp duty and registration charges of property, etc. Then you are the beneficiary of the property. So your sister will be a benamidar and your property will be deemed benami and is subjected to be ceased by the govt. in accordance to law.

How will the govt. authorities examine whether the property is benami or not?

The government authorities will scrutinize each and every property carefully to check the ownership details and the source of funds used to buy those properties in order to root out corruption. Firstly, the authorities will examine the source of funds used to buy the property. Then they will check whether there is valid and justified intent behind buying the property in the name of the registered owner. After that, the document verification will be done. This will also include the history of taxes paid to the government against the property. The tax evaders will be punished under proper sections of law. The entire investigation will make things crystal clear about the fact, who is the real owner of the property and who is getting benefits out of it.

There are several cases of benami properties which are under scrutiny where the value of property is less than Rs. 10 lakhs but there is a PAN registered with it. Generally, PAN is required only when the price of property is more than Rs. 10 lakhs. Those properties which have undeclared taxes and TDS not deducted will be easily marked by the government authorities and will be ceased.

Team of authorities responsible for examining the property ownership

Government sources said that the government will form teams of authorities which will conduct the property Investigations, raids and mark the benami properties. These teams will consist four government authorities each. The teams will have members like initiating officer, approving authority, adjudicating authority and administrator. The whole investigation of the benami properties will be done step by step from one authority to another.

Legal actions to be taken against the benami property holders

The government has issued some guidelines related to the legal actions which will be taken against all those benami property holders or better called benamidar. If the property declared as benami by the investigating team of government authorities, it will be confiscated by the central government .The accused may face rigorous imprisonment that may be of 1 year to up to 7 years. In addition to this, penalty of 25 per cent of the property value in the current market will also be charged from the benamidar. Also there is a legal provision for those who will not cooperate with the government authorities and will give false information. They may face imprisonment from 6 months to 5 years and also might be charged with 10 per cent of the property value in the current property market. Special fast track courts will be organized to the trail of the benamidar.

Latest update: Benami Act comes into play

"After in-depth investigations, the I-T department has issued 87 notices under section 24 of the said Act (notice and attachment of property involved in benami transaction). A total of 42 properties, largely monies worth crores in bank accounts and an immovable property, of benamidars have been attached," officials said citing an analysis report, also accessed by PTI

What is the way out?

The beneficiary will have to declare the Benami transactions before March 31, 2017. The money from these illegal transactions must be declared and deposited under the Prime Minister Garib Kalyan Yojana 2016.

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Pay Rs.2, 500 extra for verification of Certificates to register as an Advocate for newly passed LL.B…

reema rai 30 Jan 2017

Bar Council of India have sent letters to the Secretaries of State Bar Councils, in another decision in regard to verification of newly passed LL.B candidates, vide which it has been instructed read more

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The 3 Rules To Getting Clients Online

Anuj Malhotra 25 Jan 2017

The last year has been good to me. I got clients off of YouTube, Facebook (I know because I get messages on my business Facebook Page when I’m running an ad campaign), and other non-traditional sources. Although I am sure others are better authorities on the topic, I want to share what I’ve learned this last year so that the readers of Above The Law have a competitive advantage over the rest.

If you have been out of law school for over two years, no one cares about what you did in school. Take if off your website bio. It hurts you more than it helps you. I understand that you are proud that you were on the moot court board or were the treasurer of your 1L class, but clients do not care about that at all. Unless you’re focusing your marketing efforts on representing current law students, no one cares about the moot court board. And if you are targeting clients who are six figures in debt and have a just-enough-to-be-dangerous knowledge of the law, you need to look for a new target. Keep that stuff on your résumé, because employers care about it, but clients do not. In fact, if you are two years out and you have so few professional accomplishments that you need to start talking about what groups you were in back in law school, your potential clients reading your site are going to wonder if you are the right choice. Two years is the outside amount of time you should keep it on your bio, but you should start thinking immediately after you start working about taking it off and replacing it with accomplishments.
Know your audience and target your audience. Put yourself in the role of your target audience. Are you a plaintiff’s employment lawyer? Pretend you are a person who has been discriminated against. What Google searches do you do? Probably not “wage and hour attorney California” or “labor and employment counselor at law.” That’s how lawyers talk. Who is your ideal client and what would they google to find you? Try “paycheck dispute lawyer” or something more simple like that. Now, what do they find when they get to your site? Is it more stuffy legal talk, or does it immediately answer a question they have, or show them where they can find the answer on your website? Assume that visitors to your site are going to spend about 30 seconds there, and if they can’t find what they are looking for, they will go onto one of the other 100 websites that showed up in the Google search results for lawyers with your specialty in your area. People coming to your website are going to have three main questions: (1) do you seem intelligent/capable, (2) can you help me with my specific problem (do you do my area of law and have you had any good results in the past), and (3) how much do you cost? That’s about it. So create your website so that it answers those questions and make those the focus. Do I have to read paragraph after paragraph in your About Me section about your dedication to excellence and the highest standard of client care to mine for the answers to those three questions? No one coming to your site cares about that fluff language. Get to the point. You have 30 seconds before you lose the site visitor.
Use pictures of yourself. I don’t know if you have ever sought out legal counsel. I have, before I was a lawyer, and the process was frightening. I’m reading online bios, I’m searching for top lawyers in various trade journal “top lawyer” lists, and I have no clue who is actually good. And it’s a huge decision. It’s not like choosing an Uber. You are choosing someone who is going to either do a great job for you or ruin your life or your business if they miss a deadline. It’s actually hard to trust someone with a decision like that if you can’t look at their face. Putting a picture on your website or social media makes you a person, a human being. People expect there to be pictures of you online nowadays. If there are no pictures of you online and you have an online presence, I’m going to think, “What is this person hiding?”

by : Jeff Bennion : is a solo practitioner at the Law Office of Jeff Bennion. He serves as a member of the Board of Directors of San Diego’s plaintiffs’ trial lawyers association, Consumer Attorneys of San Diego. He is also the Education Chair and Executive Committee member of the State Bar of California’s Law Practice Management and Technology section. He is a member of the Advisory Council and instructor at UCSD’s Litigation Technology Management program. His opinions are his own. Follow him on Twitter here or on Facebook here, or contact him by email at jeff@trial.technology.

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Right to Information Act (RTI): Symbol of Hope for Common Man

seema tyagi 23 Jan 2017

Right to Information Act (RTI): Symbol of Hope for Common Man In a revolutionary move, hailed as a legislation that has the power to transform the way the government functions under Indian Constitution, read more

Right to Information Act (RTI): Symbol of Hope for Common Man

In a revolutionary move, hailed as a legislation that has the power to transform the way the government functions under Indian Constitution, the RTI Act is a symbol of hope for a more transparent and more accountable government at highest level.

The Act can place the power of knowledge in the hands of Indian citizens if it is utilized in a proper manner. What it really means, to how you can file an RTI application – here is everything you need to know:

What is the RTI Act?

The Right to Information Act (RTI), 2005 is an Act of the Parliament of India “to provide for setting out the practical regime of right to information for citizens.” Simply put, it allows citizens of the country to request information from any public authority about its work, actions, etc and make our democracy work for the people in real sense. The Act is a big step towards making the citizens informed about the activities of the Government.

Why is RTI Matters?

For common man, the Right to Information Act is considered to be one of the strongest pieces of legislation and an Instrument for Stronger and Vibrant Democratic Process in India. It gives citizens the power to question public authorities and their activities, thereby not only promoting transparency, but demanding accountability as well. The Act is considered a landmark legislation in the fight against corruption.

The Act emanates from what the Indian Constitution guarantees itself. Under Article 19 (1) (a) the Constitution guarantees every citizen freedom of speech and expression with certain restrictions. Logically to allow the exercise of freedom of speech and expression effectively the country needs an informed civil society.

Reasons why the RTI is a powerful weapon for common citizens:

Empowering the Common Citizen - The RTI, just by giving information, turns an Aam Aadmi into an activist — an activist, whose blood boils due to the corruption. Supreme Court observed that in a responsible government as ours, where all the agencies of public service must be responsible for their conduct, there can be only few confidential matters. The people of the country have a right to know the details about the functionaries’ function.

Link: Supreme Court Judgment Copy

Political Parties do not want to be accountable- According to the Central Information Commission’s ruling, political parties directly qualify as public organizations under the ambit of RTI, by virtue of substantial subsidization and government spending on them. While the end result of a political party is to cater to the needs of the public, it is only logical that the public has the every right to know about parties’ source of funding and choice of candidature. However, there have been efforts to amend the RTI to keep the Political Parties away from the reach of people.
Brings down Corruption- India at rank 76 out of 168 countries in its latest Corruption Perception Index. according to the 2015 CorruptionPerceptions Index reported by Transparency International. Since 1947, the country has lost a whopping $462 billion via illicit financial flows due to tax-evasion, crime and post-independence-corruption. Not surprisingly, even government policies don’t escape corruption. With RTI empowering citizens, even a villager in a nook of India, when endowed with the information, could pose a threat to illegal operations. Hence, the RTI, indirectly, shrinks the extent of corruption by having records of public organizations at the disposal of its citizens.
Protecting Whistle-blowers-The success of RTI lies in ensuring that whistle-blowers are amply incentivized and secure from threats — something that’s evidently lacking; the statistics stand testimony to that.

Bodies covered under the RTI Act

Bodies which are covered by the Central Act are referred to as "Public Authorities". Section 2(h) of the Central Act clarifies the term "Public Authorities" mean:

All Central, State and local level bodies which are set up under the Constitution or under any other State or Central statue. This means that it covers the President, the legislature and the judiciary and all related Ministries, departments and agencies.
Anybody owned, controlled or substantially financed or any non-Government organization substantially financed directly or indirectly by Government. This means that even some private bodies which receive funding from the Government can be asked for information.

Unfortunately, section 24(1) of the Central Act goes on to limit coverage by entirely excluding some bodies from the law such as security or intelligence agencies. Section 24 actually allows Governments to add bodies to the list of exempt agencies, so you should consider checking whether any such Rules have been made where you are considering making an application to a security or intelligence agency.

At the State level, coverage is variable, with some laws covering more bodies than others. Most of the State Acts do not cover private bodies, so you may not be able to access information from a private telephone company or electricity body.

If you believe that your application relates to more than one body, you should try to decide which body you think has the closest connection with the information you are seeking and then send your application to them. In any case, the relevant body should be under a duty to consult with any other relevant body to make sure that all the necessary information is collected. Notably, the Central Act actually includes a specific requirement that applications which are directed to the wrong body are transferred to the body which does hold the information. This recognises that the public should not be expected to chase lots of different bodies because this will be costly and complicated.

Method of filing an RTI application:

An RTI application can be filed in one of three ways:

Online: Visit rtionline.gov.in and login to file an RTI.
Via post: send your application to the concerned department via speed post or registered post.
In person: Visit the Public Information Officer/ First Appellate Authority (FAA) of the concerned department and he/she will guide you further.

For example, if you reside in Bangalore and have queries about the water supply in your area, you can approach the municipal body in charge of supplying water to your area (in this case, the Bangalore Water Supply and Sewerage Board), either through their website or at their office.

How do I file an RTI application?

The procedure to file for an RTI is fairly simple. There are two types of Appeal which are as follows:

Procedure for first appeal

Identify which department your query concerns and who the Public Information Officer/ First Appellate Authority (FAA) there is.

For Central Public Authorities, check out this website. For State Public Information Officers, go here.

Write a simple, to-the-point application form detailing your questions clearly. Also mention ‘Seeking information under the RTI Act, 2005’ in your subject line

Pay the fee of Rs. 10. Payment can be made via Demand Draft or Indian Postal Order or can even be submitted to the treasury. Proof of payment (such as challans and receipts) must be enclosed with the application. Online options for the payment are also available here.

Submit the application either via post, online or in person.

Important Note :

Please take a photocopy of the application and keep one with you for future reference. Send your application by post or hand it in personally to the department concerned. Don’t forget to get an acknowledgement.

When can I expect a response to my RTI request?

By law, RTIs must be replied:

First Appellate Authority (FAA) has to decide on the appeal within 30 days, from the date of receipt of first appeal. She/he can take a further 15 days (total 45 days), provided they give the reasons for the delay in writing.
48 hours for information concerning the life and liberty of a person
5 days shall be added to the above response time, in case the application for information is given to Assistant Public Information Officer.

RTI - Second Appeal

However, if the appellate authority (FAA) fails to pass an order on the appeal, within the prescribed period, or if the petitioner is not satisfied with the order of the first appellate authority. They have the option of escalation to file a second appeal, with the Central Information Commission. The second appeal must be within ninety days from the date on which the decision should have been made by the first appellate authority, or was actually received by the appellant.

The appeal made to the Central Information Commission (CIC) should contain the following information:

1. Name and address of the appellant.

2. Name and address of the Public Information Officer, whose decision is being appealed.

3. Particulars of the order including number, if any, against which the appeal is preferred.

4. Brief facts leading to the appeal.

5. If the appeal is preferred against deemed refusal, particulars of the application including number and date and name and address of the Public Information Officer, to whom the application was made and relief sought.

6. Grounds for the relief sought.

7. Any other information that you think will help the Commission in deciding the appeal.

The appeal made to the Informational Commission should be accompanied by the following

Documents:

1. Self-attested copies of the order or documents against which appeal is made.

2. Copies of the documents relied upon by the appellant and referred to in the appeal.

3. An index of the documents referred to in the appeal.

Scams The RTI Act Helped Bust In past decade

The Adarsh Housing Society :

The Adarsh Housing Society, a 31-storey building, which came up in the prime real estate area of Colaba, Mumbai, was originally meant to provide residence for war widows ,veterans and heroes of the 1999 Kargil War, were used to house politicians, bureaucrats and their relatives.

Just after the RTI came into force, activists Simpreet Singh and Yogacharya Anand ji in 2008 exposed how politicians, bureaucrats and military officials had flouted rules to acquire flats below market rates, which culminated in the resignation of Maharashtra Chief Minister Ashok Chavan, whose own relatives were allottees in the building.

2G Scam :

In 2011, India's telecom scandal aka the 2G scam clinched the second spot in Time Magazine's "Top 10 Abuses of Power" list. Back then Telecom Minister A Raja undercharged mobile phone companies for frequency allocation licenses and caused a loss of Rs 1.76 lakh crore to the Indian government, an RTI application by Subhash Chandra Agrawal revealed that Raja had a "15-minute-long" meeting with then solicitor-general Goolam E Vahanvati in December 2007 after which a "brief note was prepared and handed over to the minister", but the minutes of the meeting were not recorded.

Commonwealth Games Scam :

India was still reeling from the 2G Scam, when it was hit by the dubious dealings of Suresh Kalmadi, a lawmaker from Pune. The report said that an RTI application filed by non-profit Housing and Land Rights Network showed that the then Delhi government had diverted Rs 744 crore from social welfare projects for Dalits to the Commonwealth Games from 2005-06 to 2010-11. The diversion of Dalit funds during the CWG triggered further investigations. Using budget documents and RTI, the National Coalition For SCSP-TSP Legislation, an umbrella organisation of Dalit and Adivasi groups, figured out that a staggering 5,27,723.72 crores worth of funds had been denied to Dalits and Tribals from the seventh to twelfth five year plans (till 2014-15) in the Union Budget.

Billionaire Anil Agarwal's University In Orissa :

In April 2006, Anil Agarwal, chairman of the Vedanta Group, set about acquiring land in Orissa to establish a Rs15,000 crore university on 15,000 acres of land, which was to rival universities like Stanford and Cambridge. The Naveen Patnaik government lost no time in granting 8,000 acres of land to the Anil Agarwal Foundation, and promised to acquire an additional 7,000 acres for the project along the Puri-Konark Marine Drive.

Challenging the acquisition in the Orissa High Court, land owners obtained a document under the RTI which showed that the government never given them an opportunity to be heard under an enquiry mandated under the Land Acquisition (Companies) Rules, 1963, before land is acquired.

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Will foreign law firms open first in SEZs (and GIFT)? Not yet, but gov’t paves a way with rule change

Anuj Malhotra 21 Jan 2017

As first reported by Live Law this week, the ministry of commerce and industry, which has been spearheading the government’s efforts to liberalise the legal market, alongside read more

As first reported by Live Law this week, the ministry of commerce and industry, which has been spearheading the government’s efforts to liberalise the legal market, alongside the law ministry, has revoked a ban on the practice of law from special economic zones (SEZs), by issuing a notification in the Gazette of India amending the Special Economic Rules governing Special Economic Zones on 3 January 2017.

LiveLaw called it a “baby step towards opening India’s legal and accounting sector to foreign players”, and indeed, the amendment is a small one, deleting just five words - “excluding legal services and accounting” - from Rule 76 of The Special Economic Zones Rules, 2006, which specifies some of the businesses that are allowed to set up in such zones.

In effect, this would allow domestic law firms and possibly legal process outsourcers (LPOs) to set up shop inside SEZs, and could be evidence of how the government will eventually intend to open up the legal market.

And interestingly, one foreign lawyer with a focus on India whom we spoke to last month, had predicted: “I suspect that GIFT (Gujarat International Financial Tec-City) will be the first FTZ (free trade zone) for foreign law firms to set up in, followed by Mumbai.”

That said, the change by itself neither lifts the 1961 Advocates Act restriction that law can only be practised by Indian nationals and firms, nor the Bombay and Madras high court judgments restating that foreign law firms are not allowed to practice here.

However, the Economic Times reported in a more upbeat fashion today:

Foreign law and accountancy firms now have a chance to operate in India on their own. On 3 January, the ministry of commerce and industry amended a rule allowing such foreign firms to set up offices and advise clients from SEZs.

The paper also quoted the head of IFSC at the GIFT, Dipesh Shah, saying: “Until now, no foreign law firm could operate in India and not even Indian firms were allowed to provide their services in any of the SEZs.

“The new amendment allows not only Indian law or accountancy firms to set up a base in GIFT, but even multinationals can directly advise upon international disputes or arbitration by setting up a base there.”

Of course, if a foreign law firm were to open up in an SEZ and advise on foreign law or arbitrations, they would still brave running a risky business since the SEZ rule amendment does not explicitly mention foreign law firms at all.

However, they may take solace and safety in the idea that despite continuing Bar Council of India (BCI) (and softer Society of Indian Law Firms (Silf)) opposition to their entry, at least the government (and presumably Narendra Modi) may have their back in an SEZ such as Gujarat’s.

The amended rule

Rule 76 of The Special Economic Zones Rules, 2006 states (emphasis added):

The “services” for the purposes of 1[clause] (z) of section 2 shall be the following, namely:— Trading, warehousing, research and development services, computer software services, including information enabled services such as back-office operations, call centers, content development or animation, data processing, engineering and design, graphic information system services, human resources services, insurance claim processing, legal data bases, medical transcription, payroll, remote maintenance, revenue accounting, support centers and web-site services, off-shore banking services, professional services (excluding legal services and accounting) rental/leasing services without operators, other business services, courier services, audio-visual services, construction and related services, distribution services (excluding retail services), educational services, environmental services, financial services, hospital services, other human health services, tourism and travel related services, recreational, cultural and sporting services, entertainment services, transport services, services auxiliary to all modes of transport, pipelines transport.

Presumably, the segment to be amended (and highlighted above) is missing a comma, and should have read “professional services (excluding legal services and accounting), rental/leasing services without operators”.

Source : http://www.legallyindia.com/law-firms/will-foreign-law-firms-open-first-in-sezs-and-gift-not-yet-but-gov-t-paves-a-way-with-rule-change-20170114-8221

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Is the "Right to Disconnect" a Human Right? Law in France

Anuj Malhotra 17 Jan 2017

French workers have won the “right to disconnect.” Their employers can no longer demand that they stay tethered to their electronic devices and answer email after work hours. This right read more

French workers have won the “right to disconnect.” Their employers can no longer demand that they stay tethered to their electronic devices and answer email after work hours.

This right to disconnect must be seen in the context of other European policies designed to protect the rights of the individual in the digital age: German companies like Volkswagen, for example, have introduced email moratoriums. There is also the “right to be forgotten,” established by the European Court of Justice a few years ago, which grants every European citizen the right to demand that search engines erase their online history. Most recently, a group of German intellectuals and policy-makers even drafted a European Digital Charter, a proposed Declaration of Digital Human Rights, that has garnered significant attention.

I was born and raised in Germany and have lived in the San Francisco Bay Area for 14 years, yet I’m still struck by the stark difference in the concepts of privacy and humanism in Europe and the U.S. It is a cliché, but nonetheless true, when we say that in Europe one works to live, whereas in the U.S. one lives to work. In Europe, a responsible, balanced lifestyle—with generous vacations and shorter work weeks—trumps responsiveness; in the U.S., it is a well-known fact (and one that Americans might be quietly proud of) that most workers don’t even use all of their paid vacation days, presumably out of fear that they might have a competitive disadvantage versus their eager colleagues, or be viewed as slackers unwilling to make work their first priority.

While the phenomenon of digital overload is universally acknowledged, the responses to it differ greatly. Not surprisingly, in Europe solutions tend to be more protectionist and policy-driven, while in the U.S., a whole market of literature and coaching offerings have emerged that seek to empower individuals to develop a more mindful relationship to technology, accepting digital distraction as integral to today’s human condition. What is viewed as a transgression in Europe is treated as a managerial task and commercial opportunity in the U.S.

Can the right to disconnect ever be a universal human right—and should it?

After the news from France broke, some commentators sarcastically opined that in the grand scheme of things, and with an eye on the not-too-distant future, the digitally-emancipated French workers will eventually be replaced by robots who will do their tasks much more efficiently—and with no concern over being constantly connected. For humans to earn the right to be disconnected, they seemed to say, is simply a precursor of humans’ ultimate fate—to be switched off completely. The “right to disconnect” might be a Pyrrhic victory.

It is of course easy to dismiss the new French law and other European efforts as hopelessly nostalgic. But it is also worth dissecting the true meaning of the term. Nostalgia comes from the Greek “nostos algos” and means an “aching to return.” It describes a longing for something profound, something essential that we have seem to forgotten in our digital times. This essential quality is nothing less than our being human, and it includes our inherently human ability to be in the moment, to relate to other people with passion and compassion, and feel intimacy.

However, it has become daunting to overcome what Alain de Botton calls “the constant challenge of modern relationships: how to prove more interesting than the other's smartphone.” Andrew Sullivan, in a remarkable essay in New York magazine last fall (“I Used to Be a Human Being”) bemoans a “new epidemic of distraction” as “our civilization’s specific weakness” and an acute “threat to our souls.”

His reflections support the French (and broader European) effort to protect what is left of our human agency and to reclaim our autonomy. Given that social isolation and loneliness are among the most concerning diseases of our time, and threaten to erode the very fabric of our societies, presence is an urgent task, one that goes beyond simply enhancing our individual well-being—it is a broader, social responsibility.

And yet it is complicated. Connection is such a critical human need that if we don’t get it from humans, our digital surrogates fill in for us. Even work communication is better than no communication, because nothing is a more terrifying than being alone with our thoughts.

On The Conan O’Brien Show, comedian Louis C.K. once said:

“You need to build an ability to just be yourself and not be doing something. That’s what the phones are taking away. Underneath in your life there’s that thing…that forever empty…that knowledge that it’s all for nothing and you’re alone…That’s why we text and drive…because we don’t want to be alone for a second.”

Indeed, a recent study found that participants would rather receive mild electric shocks than to be alone with themselves—at least, it appears, the shocks made them feel something.

This brings us to the heart of the matter. While research regularly states an alarming worldwide disenchantment with work, a lack of purpose and meaning, and widespread disengagement, it is still so much better than the alternative—no work and too much time on our hands that we have to fill ourselves.

As always, the Europeans are more used to staring into the abyss, as the Austrian writer Thomas Bernhard once observed: “Instead of committing suicide, we go to work.”

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Zero FIR: All you need to know about

Rituraj Singh Chauhan 16 Jan 2017

Zero FIR is one such provision, which might help the victim to appeal for investigation without wasting time. To understand Zero FIR, first let us know what is a FIR, i.e. First Information read more

Zero FIR is one such provision, which might help the victim to appeal for investigation without wasting time. To understand Zero FIR, first let us know what is a FIR, i.e. First Information Report.

FIR means First Information Report

A First Information Report (F.I.R.) is the first information in point of time regarding the commission of a cognizable offence that is given to the police and is recorded in the manner provided under section 154 of the Cr.P.C [These are the offence/case in which Police can arrest a person without warrant].

Who Can Register An FIR ?

Any person who has knowledge about the commission of a cognizable offence may register an F.I.R. with the police. Such person may be:

the victim of the offence, or
a family member of the victim, or
a witness to the offence, or
the person who has committed the offence, or
a police officer, or
any other person who has come to know about such offence.

Different aspects of a FIR are listed below:

Nature and right

If information about the cognizable offence is given orally, the police must write it down after the report is verified and signed by the person giving the information.
The person giving information has right to demand that the information recorded by Police be read to him.
Person has right to demand copy of FIR free of cost.
If the person is not able to read and write then they can give their left hand impression on the document after being satisfied about the correctness of report.

Time

The FIR should be filed immediately after the occurrence of the incident. Delay in filing led to suspicion as to the authenticity of crime thus causes major hamper in getting justice.
Any Delay has to be adequately explained.
Duration of investigation should not be more than seven day as per verdict of Supreme Court. And if there is further delay then it has to be reasonably justified.

Where to Register an F.I.R.?

The entire territory of India is divided into various police stations that exercise jurisdiction over a particular territory. An F.I.R. can be registered in the police station that has jurisdiction over the place where the offence has allegedly been committed.

For example, if somebody snatches away Neha’s mobile phone while she is walking on Shivaji Marg in North Campus of University of Delhi, she can lodge an F.I.R. in the Kamla Nagar Police Station- since Shivaji Marg falls within the territorial jurisdiction of the Kamla Nagar Police Station.

Many victims who have not faced legal proceedings ever in their life, are unaware of such proceedings and provisions provided by law. Due to lot of complain and misuse by Police and powerful corrupt people, Zero FIR concept is highly popular among People for prompt action and justice.

Click here to view: FORMAT OF FIR

The concept of Zero FIR :

The concept of zero FIR came after the Nirbhaya case of December 2012, On January 18, 2013 after strong protests by the citizens of India.

The provision of Zero FIR came up as a recommendation in Justice Verma Committee Report in the new Criminal Law (Amendment) Act, 2013 after the heinous Nirbhaya case of December 2012.

The provision of Zero FIR :

If you are not sure about the police station that exercises jurisdiction over the place of the offence or you cannot go to that police station for some reason, you can register the F.I.R. at the nearest police station. A FIR can be filed at any police station irrespective of place of crime and area of jurisdiction. This provision is for everyone . When in trouble Men and women will be benefited equally. Such police station can then forward the F.I.R. to the police station that has the jurisdiction to investigate the case.

The procedure of Zero FIR:

The concept Zero FIR is an applaudable effort for ensuring that the procedure of investigation in motion starts without wasting much time. When the victim files a FIR, if it becomes apparent that the crime was committed outside the jurisdiction of the police station, then a FIR is lodged by the police under the serial numbers “00”. It is then transferred to the concerned police station under which the case falls so that investigation process starts swiftly [Clause (e) of Section 460 of the Criminal Procedure Code]. Zero FIR allows the authorities to think about the initial action that they should take rather than trying to figure out what had happened at the crime scene initially. One great advantage is that the victim is not compelled to run from pillars to post, her complaint is lodged considering her statements to be gospel truth.

For example, if an offence is committed within the jurisdiction of the Kamla Nagar Police Station and you approach the Lajpat Nagar Police Station, an F.I.R. (called “zero F.I.R.” because it is not numbered at the Lajpat Nagar Police Station) should be registered at the Lajpat Nagar Police Station. Later, the Lajpat Nagar Police Station can transfer the F.I.R. to the Kamla Nagar Police Station where it will be numbered. Thus, the police cannot refuse to register an F.I.R. on the ground that the offence was not committed within their jurisdiction.

Refusal to record Zero FIR

In any case If the Officer in charge of the police station refuses to record the information, person can directly write to the Superintendent of Police (SP) and records the complaint. The SP can start the investigation himself or direct any other official subordinate to him to start the investigation.
Supreme court has passed a verdict that if any police officer refuse to file FIR then police department has to take Disciplinary action against them and also prosecute them under Indian Penal Code
Individual can go to Human Rights Commission also.

Registration in case of woman

To simplify the process of FIR for woman and ensure no technical hazards for prompt registration.
The victim can lodge FIR in any police station of the State and subsequently it can be transferred to the concerned PS for investigation. These FIR are called Zero FIR
Under Section 154 of Criminal Penal Code provides that information pertaining to offences given by woman victims shall be recorded by a woman Police officer or any woman Officer.
As per Police Circular Order 343/13 regarding standard operating procedure (SOP) for registration of FIR and Investigation of Crime against Woman & Police Circular Order 338/13 regarding prompt investigation of cases in case of woman has been issued by the Government.

Impact of Zero FIR:

The infamous Asaram Bapu Rape case:

The report against The self-proclaimed Goodman Asaram Bapu was booked under Zero FIR. The complaint about the crime committed in Jodhpur was lodged in Delhi by a minor girl who hailed from UP.

On August 21 Delhi Police then booked Asaram under the charges of rape and wrongful confinement. The case was later transferred to Jodhpur police, where the actual crime took place.

Why it is needed:

93 cases of rapes are reported every day in India. Provisions like ZERO FIR are essential to bring out the process of justice in a very efficient manner. Many cases go unsolved because of lack of evidence, which was lost because of wastage of time.
Heinous crimes like murder, rape and accidents require immediate action from the concerned police authorities so that they take appropriate samples, eyewitnesses, and other circumstantial details.
Zero FIR is one of the greatest asset when you are traveling & unfortunately become a victim of any cognizable crime .You can reach any police station and file a zero FIR anytime.

Conclusion:

The Zero FIR is a free jurisdiction FIR. It was introduced in order to avoid the delay in filing the crime that adversely impacts the victim. The government should run campaigns to make people aware of such provisions and peoples should also show more concern about knowing their rights as well as when & how to use them.

“Silence is Ignorance, Ignorance is crime , Say Yes to Justice”

Know your rights, citizens!

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Decide death row convict’s plea in 2 months:SC to HC

Anuj Malhotra 13 Jan 2017

The Supreme Court today asked the Delhi High Court to decide within two months the plea of a death row convict seeking commutation of his sentence to life imprisonment on the ground of delay to decide read more

A bench comprising Justices Dipak Misra and R Banumathi passed the order after taking into account the submission of Attorney General Mukul Rohatgi who said if the apex court would go into the legal issues concerning jurisdiction of high courts the delay would benefit the death row convict.

The apex court’s direction came while disposing of the transfer petition of the Chhattisgarh government which alleged that the Delhi High Court has no jurisdiction to stay the execution of a man held guilty of murder of five persons, including two children, in 2004 in its territory.

The high court in its December 6, 2016 order had said the rejection of mercy petition by the President “does give rise to a cause of action at Delhi”.

It had on March 2, 2015 stayed the execution of Sonu Sardar after which the Chhattisgarh government approached the Supreme Court challenging its jurisdiction to hear the matter.

The state government had told the apex court that the high court had no jurisdiction to stay the execution of convict Sonu Sardar as the offence had taken place in Chhattisgarh.

The Supreme Court had in February 2012 concurred with the findings of two courts below and upheld the punishment. His mercy petition was also dismissed by both the state Governor and the President of India.

In February 2015, the apex court had also rejected his review plea.

Sardar in his plea before the high court had contended that there was a delay of two years and two months by the President in deciding his mercy plea.

He had also sought commutation of his death sentence to life imprisonment on account of delay in deciding his mercy plea as well as for allegedly keeping him in “solitary confinement illegally”.

Sardar, along with his brother and accomplices, had killed five members of a family, including a woman and two children, during a dacoity bid in Chhattisgarh’s Cher village on November 26, 2004. The trial court had awarded death penalty to him which was upheld by the Chhattisgarh High Court.

source : http://www.legalindia.com/news/decide-death-row-convicts-plea-2-monthssc-hc

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Arvind Kejriwal is a young man in hurry, may face 'criminal charges': Najeeb Jung

Anuj Malhotra 12 Jan 2017

Arvind Kejriwal is a young man in hurry, may face 'criminal charges': Najeeb Jung Read more at:http://economictimes.indiatimes.com/news/politics-and-nation/arvind-kejriwal-is-a-young-man-in-hurry-may-face-criminal-charges-najeeb-jung/articleshow/56481115.cms

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