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advocatepankajsbajaj@gmail.com
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Mumbai, India
Indirect Taxes/GST/VATPolice ActionIntellectual PropertyAdoni, India
The Central Government had amended the Indian Stamp Act, 1899 (‘the Act’) on 01.04.2019. The implementation of the amended provisions of the #IndianStampAct, 1899 brought through #Finance Act, 2019 and read more
The Central Government had amended the Indian Stamp Act, 1899 (‘the Act’) on 01.04.2019. The implementation of the amended provisions of the #IndianStampAct, 1899 brought through #Finance Act, 2019 and Rules made thereunder has come into force on 01.07.2020.
To read more, please visit the link below:
#stampduty #finance
The Union Ministry of Micro, Small and Medium Enterprises (‘MSME’), vide Notification No. S.O. 2119(E) dated 26.06.2020, declared the new process of classification and registration of enterprises as #MSME. read more
The Union Ministry of Micro, Small and Medium Enterprises (‘MSME’), vide Notification No. S.O. 2119(E) dated 26.06.2020, declared the new process of classification and registration of enterprises as #MSME. This Notification comes into effect from 01.07.2020.
To read more, please visit the link below:
#msme
What is illegal construction?Illegal construction is construction work (or the result of such) without a valid construction permissions. Besides the potential technical hazards on read more
Illegal
construction is construction work (or the result of such) without a valid construction
permissions. Besides the potential technical hazards on uncontrolled construction sites and in finished buildings, illegal
building activity can be a major environmental violation when the works encroach
upon preserve areas like nature reserves. Likewise, illegal building can have serious political implications
when it is practiced as land grabbing or for illegal settling in foreign territories.
Reason for Illegal Constructions:
Illegal building can be the
consequence of a combination of urbanization, overpopulation, homelessness and poverty in which case
expanding slums, Shanty towns or similar will result. On the other hand, illegal building
activity may be due to profitable speculation with and exploitation of valuable real property. Demand for mass tourism accommodation (hotels, etc.) as well as its counterpart,
individualistic luxury retreats for the very rich are visible drivers of such
speculation. Similar motivation may come from incentives connected with the
illegal construction of great shopping malls or similar on green-field land. Even construction works with apparently valid permits can of cause be
a result of bribery. In some cases it can be
observed that legal or tolerated settlements are later declared illegal by
governmental institutions in order to make room for more lucrative investments
or simply for political demonstration purposes sometimes under the pretext
of beautification.
But all the above are
academics reason. Main reasons of illegal construction are as follows:
1.
Poor maintenance of land
records: Land records system has been
introduced in India during the eventual rule of Sher Shah Suri. This system is
still in process in our country with minor modifications. In this system
Patwari (Talathi) is the lower level staff who is responsible to maintain record of crop and land records of a
village. The record book called Jamabandi/Khatauni/7/12 etc.
Patwari has to maintane the records in following separate books:
a)
Girdawari
Under the Indian land record system, Girdawary is
the record of land cultivation. It records crops and ownership over the crops.
b)
Jamabandi
A jamabandi is a
term used in India meaning "RECORD OF
RIGHTS" and refers to land records.These records are documents which are
maintained for each village within its Tehsil It
contains the name of the owners, an area of cultivation/land, shares of owners
and other Rights. It is revised after a certain period of time for e.g. every 5
years in the states such as Haryana, Punjab and Rajasthan. After it
is prepared by Patwari (Govt.
official who keeps and maintains RECORD OF RIGHTS) it is attested by Revenue Officer
of that division. Two copies of jamabandi are made, one is kept in Government's
Record room and other is kept with Patwari. All changes in title/interests of
the revenue estate coming into the notice of Revenue Authorities are duly
reflected in the Jamabandi according to set procedures. In many states like
Haryana, Himachal Pradesh, Uttar Pradesh, Chhattisgarh, Madhya
Pradesh, Rajasthan, Karnataka, Kerala, Tamil Nadu,
and Punjab land
records have been computerised. In these states, Jamabandi is prepared using
software, and it is later checked by the patwari for errors. After it is
corrected or approved by the patwari, a final printout is taken which is later
attested by the Revenue officer. In these states, Jamabandis are also made
available on websites.
c)
Lal Dora
Lal Dora, is a
term that introduced by British
Raj in 1908, is a red line drawn on the maps delineating the village
population from the nearby agricultural land in the revenue records and
villagers can build houses without building by-laws without the mandatory change in
land use (CLU) permission that would
otherwise be needed to convert agricultural land to commercial or residential
purpose.[22]
The system has been prepared
and implemented is very good. But due to poor working style of Patwari and
influences from local leaders they don’t report illegal construction activities
to their senior officials. Neither they update revenue report accordingly. They
can mention their visit in respective column of Jamabandi.
2. Working style of sub registrar office: Sub
registrar office never stop registry of small part of agriculture land. As per
the registration act sub registrars are not empowered to do such work. Due to
same reasons they never stop such transactions.
3. Electricity Department: Electricity
department easily provide electricity connections to such illegal properties
developed without proper approval from authorities.
4.
Ground Water Management Department: This
department also not monitor new boring activities under their jurisdiction.
Sometime they give permission unlawfully to the builders for irrigation purpose
despite of having knowledge of illegal construction/development in such area.
5.
Gram
Panchayat/Municipal Corporations/ Municipal Committees: These
local bodies also not pay any heed to stop such illegal construction in their
area.
6.
Development
authorities: Primary objects which has been taken by state
government to set any development authority is as follows:
“the
problems of town planning and urban development need to be tacked resolutely.
The existing local bodies and other authorities inspite of their best efforts
have not been able to cope with these problems to the desired extent. In order
to bring about improvement in this situation. the State Government considered
it advisable that in such developing areas. Development Authorities to be
established. As the State Government was of the view that the urban development
and planning work in the State had already been delayed it was felt necessary
to provide for early establishment of such Authorities.”
These
authorities has been given ample powers to deal with illegal construction
within the area falls under their jurisdiction. But these authorities are
failed to use these powers in effective manners. These authorities become
business corporate to sale the land on high prices to elite person of the
society. They have not fulfil the need of a home to a poor man. Since they have
not provided cost effective homes to EWS, LIG or MIG 1 category customers;
these customers has been trapped by the greedy lobby of small time builders.
Authority officials despite knowing of such illegal construction in their area
they never stopped or seal or demolished such illegal constructions.
7. Builder Lobby: The
builder lobby has seen huge margins in such development work. They purchased
agriculture land on low cost from farmers in bulk. They have not gone for
approval of layout plan or building sanction plan for various reason e.g. EDC/IDC
charges, land under litigation with authorities, land use is different in
master plan, delayed process at authorities. In thus manner they have save huge
cost and give the houses/flats/units to the home buyer of EWS/LIG/MIG 1
category with collusion of housing finance companies and property brokers.
8. Police Officials: Police
department is also keep quite during the constructions of such illegal
properties. Some officials take bribe not to disturb such illegal
constructions.
9. Farmers/Land Owners:
Farmer/land owners also equally responsible for such illegal constructions.
These are the second person who knows the reality of lands. They know that the
area is comes under notified village/development/acquisition by way of
government order. Despite knowing such issue they sale their lands to builder
lobby without following complete process neither for development nor of
acquisition.
10. Property Buyers:
These persons are also responsible for such illegal constructions. They also
understand the risk of such properties. During the buying process they come to
know this by way of several modes e.g. property broker, rates of neighbourhood
government approved properties, lawyers and sometime banks.
11. Lending institutions: Lending
institutions are also equally responsible by way of funding in such illegal
constructions areas. The lending institutions know the risk of funding in such
area but for high yield business they never stop it.
12. NHB & RBI: These regulators send the guidelines to the
lending institutions but they do not verify implementation part of their
policies. They should also ensure timely implementation of their policies in
the lending institutions.
13. Law Firms and Valuation Agencies: These
agencies are majorly on fault by way of providing subjective positive reports
to the lending institutions. Despite of knowing all the facts about such
properties they release positive reports to the lending institutions with
demand of such documents which are not exists for such properties.
….to
be continued…..
Recently, in the case of Amarjeet Singh vs. Chief Secretary State of Jharkhand & Ors., and several other petitions taken up by the Court on its own motion, the High Court of Jharkhand at Ranchi on read more
Recently, in the case of Amarjeet Singh vs. Chief Secretary State of Jharkhand & Ors., and several other petitions taken up by the Court on its own motion, the High Court of Jharkhand at Ranchi on 17th April 2020 has ordered the state to provide food and other necessary facilities to transgender persons (“TP”). Similarly, on 27th April 2020, the Telangana High Court in Vyjayanti Vasanta Mogli vs. State of Telangana and Ors. has ordered the state to make foodgrains, medicines, and consumable items accessible to TP, free of cost and without insisting on production of ration cards. Karnataka High Court also on 9th April 2020 had ordered the state to grant benefits under ‘Mythri Scheme’ to TP. State of Kerala too has provided relief kits to 1000 TP registered within the state.
https://poshatwork.com/transgender-persons-lockdown-shows-the-mirror/
The question is, why did the courts and governments in these states have to take these special measures for TP? The answer lies in something that we already know – the very root cause – absence of a strong backbone i.e. lack of education and jobs for TP due to centuries of discrimination, violence, harassment, exclusion / isolation and lack of awareness / maturity of the society. India went into a nationwide lockdown on March 24, which has extended till May 17. The lockdown has merely showed us a mirror – a reflection of what we are as a society – of the behaviour generally meted out to TP, having increased more so during the lockdown.
As reported, during this time, in Hyderabad, transphobic posters were found at a metro station stating, “if you talk to transgender, you will get corona.” As per other reports, being a victim of hate, false information and rumors, housing complexes have asked TP to move out of their rented homes, making them live on roads – leading to no access to food and water, lack of proper hygiene and higher risk of contracting the virus. And these are just examples.
This, in spite of the fact that Article 14 of the Constitution of India states that “State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India” and Transgender Persons (Protection of Rights) Act, 2019 which states that “no person or establishment shall discriminate against a transgender person…”
TP, who have majorly depended on begging and prostitution for their daily income due to the very same stigma inflicted by the society, have found it impossible to earn due to the lockdown. They are having to fight the virus as well as the mindsets for basic necessities and bare survival – in spite of Section 2 (23) and 3 of the National Food Security Act, 2013 which states that every person belonging to priority households shall be entitled to receive five kilograms of foodgrains per person per month at subsidised prices under the Targeted Public Distribution System (meaning the system for distribution of essential commodities to the ration card holders).
Even though after the Supreme Court decision in the case of NALSA vs. Union Of India, AIR 2014 SC 1863, the application forms for PAN card, Ration card etc. provide that ‘third gender’ or ‘transgender’ can also register and get these documents in their name, how many TP actually have these documents? – something that could have perhaps ensured they get at least food grains during this time for survival. It again comes back to the lack of education and jobs – and presents a sorry refection of ourselves.
It is, therefore, perhaps time to think – as individuals, homes, educational institutions, employers and society – how are we treating a transgender child? Are we giving them the love and support of home and family that each child regardless of gender deserves? Are we trying to understand this child’s plight? Are we ensuring their education – like we would for any child? Are we as fellow students and teachers treating this child like any other? Are we rejecting to hire this person – not because of merit – but because we feel they may seem like a ‘misfit’? Are we even talking about it or creating enough awareness to ensure a no-discrimination environment?
A person is made by the society and society by person. Our responsibility begins at home and goes right till the end. Providing the backbone and mainstreaming is our responsibility. Laws will be of no use if we don’t implement them and change our mindsets. The next time the mirror reflects, let it reflect differently!
To know more about the Rights of TP , please register to the webinar on Transgender Persons (Protection of Rights) Act, 2019: Duties of family, educational institutions and employers, scheduled to go live on 11th July at 5 pm on SoOLEGAL, through the link below: https://www.soolegal.com/event-registration/167
DRAT can't entertain appeal filed before it by Borrower/mortgagor or co-borrower without order to deposit minimum 25% of the claimed amount of secured creditor.1NONREPORTABLEIN THE SUPREME COURT OF INDIACIVIL read more
DRAT can't entertain appeal filed before it by Borrower/mortgagor or co-borrower without order to deposit minimum 25% of the claimed amount of secured creditor.
1
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1902 OF 2020
(@ SPECIAL LEAVE PETITION (CIVIL) NO.28608 OF 2019)
UNION BANK OF INDIA …APPELLANT(S)
Versus
RAJAT INFRASTRUCTURE PVT.
LTD. & ORS. …RESPONDENT(S)
WITH
CIVIL APPEAL NO. 1903 OF 2020
(@SPECIAL LEAVE PETITION (CIVIL) NO.1753 OF 2020)
J U D G M E N T
Deepak Gupta, J.
Leave granted.
2. These appeals were initially directed against the order dated
25.11.2019 of the Bombay High Court. By the said impugned order
the High Court had relegated the appellant before it i.e. respondent
no. 1 herein to avail the statutory remedy of appeal before the Debt
Recovery Appellate Tribunal (for short ‘the DRAT’).
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3. The short question which arises for determination is whether
the High Court was right in directing that predeposit
was not
required for entertaining an appeal before the DRAT as mandated
by Section 18 of the Securitisation and Reconstruction of Financial
Assets and Enforcement of Security Interest Act, 2002 (for short
‘SARFAESI Act’).
4. It is not necessary to set out the facts of the case in detail in
view of the decision which we propose to take. The basic facts are
that the respondent no. 1 stood guarantee and mortgaged its
property for repayment of loan availed by respondent nos. 4 and 5.
The property was put to auction and respondent nos. 2 and 3 who
are the alleged leaseholders in possession of the property are the
highest bidders for a sum of Rs.65.52 crores. The main objection of
the respondent no.1 to the sale is that it is for a low amount and
there is collusion between the officers of the Bank and the auction
purchaser. The petitioner challenged the order of the DRAT dated
11.11.2019 before the High Court and the High Court passed the
following order dated 25.11.2019:
“2. Relegating the Petitioner to the appellate remedy on
account of aforenoted facts and holding that the
Petitioner has an efficacious alternate remedy of appeal
before the learned DRAT where no predeposit
is
required, the Petition is rejected without making any
observation on the merits of the disputes between the
parties.”
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5. It appears that the successful bidders filed review petitions
before the High Court praying that the High Court could not have
issued directions that no predeposit
was required. Vide order
dated 16.12.2019 the High Court dismissed the review petition and
the relevant observations of the High Court are as under:
“7. Suffice it to state that where a proposed sale notice is
questioned with reference to the reserve price fixed and
the argument takes the form of considering valuation
report, such order, if challenged before DRAT, would not
require any predeposit
being made for the reason under
the impugned order, no decree has been passed or
liability fixed. It would depend on the nature of the order
whether before the appeal there against is entertained,
should a predeposit
be made.”
6. Mr. O.P. Gaggar, learned counsel for the appellant submitted
that the order of the High Court is not only against the provisions of
the Act but also against the law laid down by this Court. Mr.
Dushyant A. Dave, learned senior counsel for the auction
purchasers, respondent nos. 2 and 3, supported the case of the
appellant and submitted that the no appeal on behalf of respondent
no. 1 can lie without complying with the provisions of Section 18 of
the SARFAESI Act which mandates the deposit of 50% or at least
25% of the amount due, as claimed by the secured creditor or
determined by the Debt Recovery Tribunal (DRT). On the other
hand, Mr. Vikram Chaudhri, learned senior counsel appearing for
the respondent no.1 urged that the High Court has exercised its
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discretionary jurisdiction under Article 226 of the Constitution of
India while holding that it is not required to make predeposit.
He
also submits that the respondent no.1 is not a borrower and finally
submits that the main ground is that since the amount offered by
the highest bidder is below the value of the property, the DRAT is
entitled to entertain the appeal without deposit of any amount. It is
submitted that the value of the property is about Rs.160 crores and
even the value as per the circle rate is about Rs.120 crores, but the
same has been sold for a pittance of Rs.65.52 crores. He also
submitted that there is collusion between the employees of the
Bank and the successful bidders.
7. We may make it clear that we are not going into the merits of
the case in view of the fact that we agree with the High Court that
the matter must be decided by the DRAT. The only issue is whether
the High Court was right in holding that no predeposit
was
required. We may refer to Section 18 of the SARFAESI Act, which
reads as follows:
“18. Appeal to Appellate Tribunal.—(1) Any person
aggrieved, by any order made by the Debts Recovery
Tribunal under section 17, may prefer an appeal along
with such fee, as may be prescribed to an Appellate
Tribunal within thirty days from the date of receipt of the
order of Debts Recovery Tribunal.
Provided that different fees may be prescribed for filing
an appeal by the borrower or by the person other than
the borrower:
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Provided further that no appeal shall be entertained
unless the borrower has deposited with the Appellate
Tribunal fifty per cent. of the amount of debt due from
him, as claimed by the secured creditors or determined
by the Debts Recovery Tribunal, whichever is less:
Provided also that the Appellate Tribunal may, for the
reasons to be recorded in writing, reduce the amount to
not less than twentyfive
per cent. of debt referred to in
the second proviso.
xxx xxx xxx”
This Court in the case of Narayan Chandra Ghosh vs. UCO Bank
& Ors.1, held that keeping in view the language of the Section even
if the amount or debt due had not been determined by the DRT, the
appeal could not be entertained by the DRAT without insisting on
predeposit.
The DRAT, at best could, after recording the reasons,
have reduced the amount to 25% but could not have totally waived
the deposit. This Court also held that the right of appeal conferred
under Section 18(1) is subject to the conditions laid down in the
second proviso therein which postulates that no appeal shall be
entertained unless the borrower has deposited 50% of the amount
of debt due from him as claimed by the secured creditors or
determined by the DRT, whichever is less. The third proviso
enables the DRAT, for reasons to be recorded in writing, to reduce
the amount of deposit to not less than 25%. The following
observations of this Court are relevant:
1 (2011) 4 SCC 548
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“7…Thus, there is an absolute bar to the entertainment
of an appeal under Section 18 of the Act unless the
condition precedent, as stipulated, is fulfilled. Unless the
borrower makes, with the Appellate Tribunal, a predeposit
of fifty per cent of the debt due from him or
determined, an appeal under the said provision cannot be
entertained by the Appellate Tribunal. The language of
the said proviso is clear and admits of no ambiguity.”
8. In view of the law laid down by this Court, we are clearly of the
view that the observation made by the High Court was totally
incorrect.
9. We are not in agreement with the submission of Mr. Chaudhri
that the High Court has exercised its discretionary powers under
Article 226 of the Constitution. The order of the High Court does
not show any exercise of such discretionary powers but according
to the High Court on an interpretation of the Section, predeposit
was not required. We are also not impressed with the argument of
Mr. Chaudhri that his client is not a borrower. A guarantor or a
mortgagor, who has mortgaged its property to secure the repayment
of the loan, stands on the same footing as a borrower and if he
wants to file an appeal, he must comply with the terms of Section
18 of the SARFAESI Act.
10. Furthermore, we may add that the High Court has no powers
akin to powers vested in this Court under Article 142 of the
Constitution. The High Court cannot give directions which are
contrary to law.
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11. In view of the above discussion, we set aside both the orders
dated 25.11.2019 and 16.12.2019 of the High Court in so far as
they hold that predeposit
is not required and allow the appeals.
We reiterate that we have not gone into the merits of the
contentions raised by the parties which shall be decided by the
DRAT when it entertains the appeal and is called upon to do so. We
extend the time given to the auction purchasers, respondent nos. 2
and 3 to deposit the balance of the sale amount till 20.03.2020. We
also direct that in case respondent no.1 files an appeal within 30
days of the pronouncement of this order it shall not be rejected on
the ground of limitation.
12. Pending application(s), if any, stand(s), disposed of.
…………………………..J.
(Deepak Gupta)
…………………………..J.
(Aniruddha Bose)
Litigants and the Lockdown - A court perspective.It is interesting to see the judiciary come up with new solutions to the novel problem read more
Litigants
and the Lockdown - A court perspective.
It
is interesting to see the judiciary come up with new solutions to the novel
problem of the lockdown, and so far the courts have been doing what they can to
ensure that the regular functioning of the courts isnot hampered too much by
the fact that people are no longer allowed to be present in person.[1]
India has tried to embark on the path to digitize the court system, and it took
a pandemic and a lockdown to finally realize the object of a fully digitized
court system. Although one must beware, it does come with own sew of hiccups
and issues the court doesn’t have either the readiness or capacity to address.
Measures taken by the
Courts
In
the months since the lockdown has been announced, the Supreme Court and many
High Courts have made a fit case for moving proceedings online and making
filings to the registrar through E-mail. Courts have even passed decorum rules
for the presentation of lawyers during these online proceedings.Most
importantly, courts have reduced the staffing capacities during the lockdown,
and ensured that only essential matters are heard during the lockdown. Thesemeasures
have had some uneventful consequences, among them the unfortunate
interpretation by the Bombay High Court that Bail petitions were not essential
litigation,further this as extended to the Supreme Court hearing on matters
regarding the government’s handling of migrant workers’ transportation during
the lockdown. This paper has only one objective: To understand the plight and
status of the average litigant during and after the lockdown through the lens
of the effect the multiple orders and guidelines passed by courts have had on
the overall functioning of the lower-level judiciary.
Litigation
Bottlenecking
The
first interesting point is that the majority of litigation happens in the
courts of the first instance, this means that the district, sessions and family
courts are the ones that handle a majority of the litigant traffic in the
country. They are the worstaffected since the implementation of online
proceedings, filings and arguments take time and aredifficult to trickle down
to these courts. Even though the Andhra Pradesh High Court, among others, has
passed notifications requiring the lower level judiciary to function online and
try to import as much of their regular functioning online, it is not the case
in many courts, and in fact, these online proceeding guidelines have been
misinterpreted in requiring that counsel arrive in court to present their
arguments which will then be broadcast to the judge over the air, thus
defeating the entire purpose of moving proceedings online. This is just one
example of the first instance of the judiciary being barely prepared to handle
the porting over to online applications. Litigants have been left with a choice
to make such arguments before the judiciary, which make a fit case that their
matters fall into the narrow definition of essential cases.
The effects of the judiciary pausing or altering its workflow and suffering
quantitative setbacks has been seen in both the U.S., South Africa and the
UK,where either the judiciary has shut its doors or is working in a similar
fashion to Indian Courts.The main issue is that judiciaries over the world are
not prepared to deal with the backlogs in their dockets, much less the
onslaught of disputes and matters that will come to the fore specifically
during the pandemic.
One interesting example is execution proceedings on time-bound orders passed by
the competent court. In the U.S. since the courts in many cities have closed up
the execution of decrees has been impossible, and so has the execution of relief,
this has especially hurt the housing sector in the country since many tenants
are losing their houses due to the stoppage of income during the pandemic.
Since there are no courts, these tenants are unable to secure their living
conditions and act against illegal evictions. This has been replicated in India
but in a slightly more insidious form”: Right after the announcement of the
lockdown by the MHA, extensions had been granted on all orders passedby
respective High Courts, meaning that all time-bound executions were pushed by a
month from March 24th. The only problem is that partial lockdown is
still in force, now towards the end of June, and since courts have severely
prioritized on case-load, it has become difficult for litigators to seek
remedy, or extension or otherwise. This consequence is the sole product of the
courts being unable to adapt to digital conduct of proceedings thus hampering
the processing of matters and therefore nullifying all the benefit and
advantage rendered to the litigant in the process of granting the extension in
the first place. There is again the issue of national-level tribunals extending
their shutdown, where originally the NCLT shut down for a few weeks, that had
later been extended in a separate notification dated Apr 24, similarly, the
NCDRC has also extended its shut down till the initial May 3rd
deadline.Not only does this prevent the litigant from accessing these tribunals
to exercise his powers of appeal, but it also reduces his chances of timely or at
least speedy redressal since this continued shutdown will increase the backlog
of cases in these tribunals.
Coupled
with the lack of a long term plan of action regarding whether the digital
filing system that has been adopted during the pandemic will be continued
after,it is unclear how litigation will get back on its feet. It is imperative
that the improvement since digitization ispreserved because in the aftermath of
the pandemic there will be an onslaught of litigants that will need to be
serviced and that number will only grow if the courts do not manage to increase
their efficiency during the lockdown, and they should be mindful of the small
but significant increments that help in creating an impact that is bigger than
the sum of its products. The remote service of petitions and video conferencing
the proceedings are two main developments that the pandemic has sprouted that
have the potential to make the courts more accessible in the long run.It is the
continued deployment that will see this accessibility become a reality. It is
interesting to note that previously in 2013, the Delhi district courts had been
once attempted to be digitized at great expense, the judges were provided with
drawing tablets and monitors so that all required documents could be displayed
and processed digitally without the need to make any print copies in the entire
process. With the Madras HC still requiring physical copies to be filed for
proceedings even during the lockdown, one can appreciate how well this scheme
of digitization has caught on.
Procedural Differences
Moving
court proceedings online also means that there will be a difference in the
procedural aspects. The most glaring of which the Supreme Court has addressed
in its Suo Motu decision on video conferencing: The Electronic evidence rule,
the requirements to prove a document saved in an electronic form re greater,
and Sec. 65B and 45 of the Evidence Act will play a greater role now that
physical appearance has been limited. Documents for evidence could earlier be
submitted in physical form, and marking and admissibility was a simpler process
of procurement and submission. With electronic evidence, things are a little
more complicated.
It
is known that under Sec. 65B electronic evidence can be produced either on
paper, or optical drive or otherwise. The real problem is the verification and
admission of secondary evidence and the admission of electronic forms of a conventionally
physical medium. The procedure for admission of secondary electronic evidence
is given in the act itself. But the procedure for admitting a digital copy of a
document, when physical counterparts were available or were the norm, is a
topic that has not been broached. In Sec. 65, the conditions under which
secondary evidence could be produced have been enumerated, and it is a matter
of note that courts will find it difficult to admit secondary electronic
evidence when primary documents are available and may be produced before the
court. The two main decisions governing
electronic evidence: State NCT of Delhi v Navjot Sandhu[2005] 11 SCC
600, where the court decided on the instances where secondary
evidence could be produced, among other things; it was held and can be inferred
that secondary evidence should be produced in those situations where primary
versions of the documents were hard, or impossible to find. The other decision
being Anwar v P.K. Basheer (2014) 10 SCC
473, here
again,the matter of discussion was the admissibility of secondary electronic
evidence. Outlining the procedural requirements that are necessary for the
submission of secondary electronic evidence. Sec. 63 is the operating section
when it comes to the general admission of secondary evidence, while mechanical
copies could be admitted as secondary evidence, the specific question is
whether this will clash with the requirement in Sec. 65B. The only case that
discusses this peculiarity is Darshan Kaur v Amritsar Primary O-operative
Agricultural Bank Pvt. Ltd. 2010 (2) PLR 289 here it was held that a
photostat of a document while not being primary evidence, was not entirely
secondary evidence.
The
safer assumption is that such evidence is electronically submitted since the
original document is difficult to bring before the court. The only issue is,
the original physical documents may be brought before the court only that it
will take much longer, should that be allowed as an exemption to producing
electronic evidence? This brings us to the best evidence rule, a principle that
states that a party who as the burden of proof needs to submit to the court.
The Supreme Court discussed the doctrine in Bal Hira Devi v Official
Assignee of Bombay 1958 SCR 1384 here the court rad the principle
into Sec. 91 of the Evidence Act. The proposition being that a document was the
best evidence of the contents of the document, and this rule extended to all
secondary evidence. This is the primary concern with the Supreme Court’s
mandate to move all proceedings online, while it would have been clarificatory
to pass an order deeming all electronically submitted versions of documents the
primary evidence of a document for the time being at least, much confusion
could have been avoided.
Then
there is the issue of cross-examination if the process is happening remotely,
would it be as effective as usual, or would the examinations performed remotely
be granted the status of examinations under oath and affidavit under O-19 of
the Code of Civil Procedure. It is important to note that examination is not
just to elicit answers to the questions posed, but also to observe the conduct
and demeanour of the witness. For that reason, the question becomes, whether
the examination conducted out of court, will need to be sworn on affidavit.
While usually the granting of cross-examination on video-conferencing was the
discretion of the court, it was usually used in situations where the witnesses
were hard to produce before the court. Thus precedent existed for allowing
examination and cross to happen through video conferencing, but its used as an
exception to the rule is to be noted.
Conclusion
In
light of the above observations, it can be concluded that the average litigant
has been affected negatively by the pandemic, and will continue to be affected
negatively unless the court system takes action and actively attempts to reduce
the burden on the judiciary during the pandemic and makes the process a little
more accessible in light of the continued lack of access during the lockdown.
In short, the following are the consequences for the average litigant:
1. The
matters that they have submitted before the court may not be addressed for a
long time to come.
2. If
they are addressed, they might not qualify as essential litigation.
3. Due
to the lack of experience of the courts in the digitization of proceedings, and
the in-general reluctance to adapt, all attempts at accessibility are hamstrung
at the origin.
4. The
courts are underprepared to meet the demand of their litigants after the
lockdown has been lifted, and excessive demand has been created by either
shutdown of the court/ tribunal, or reduced capacity operation (which is again
a consequence of underutilization of the digital resource alternatives).
5. The author of this
blog/Article is Kishan Dutt Kalaskar, a Retired Judge and practising advocate
having an experience of 35+ years in handling
different legal matters. He has prepared and got published Head Notes for more
than 10,000 Judgments of the Supreme
Court and High Courts in different Law Journals. From his experience he wants to share this
beneficial information for the individuals having any issues with respect
to their related matters .
Author :
Kishan Dutt Kalaskar
Advocate (Retired Judge)
Bengaluru-560003
Mob: 9686971935
Police brutality, an important phenomenon in India today, abuses numerous civil and human rights by abusing and tormenting a individual. From 2000 to 2016, according to the National Crime Record Bureau read more
Police brutality, an important phenomenon in India today, abuses numerous civil and human rights by abusing and tormenting a individual. From 2000 to 2016, according to the National Crime Record Bureau figures, there were 1,022 confirmed deaths of people in police custody, but only 428 FIRs were charged, of which 5 percent of the policemen were eventually sentenced. Police brutality has been accepted to the point that it is part of our mass culture and has even been idolized in modern years – but this portrayal may not be further from the facts.
In the current Tuticorin case, the death of father (Jeyaraj) and son (Fenix) due to alleged custodial torture in the town of Sathankulam near Thoothukudi in Tamil Nadu has provoked frustration and anger all over the state. The Tamil Nadu Traders Association closed shutters across the state. The victims were traders from the Nadar caste, a socially and politically influential group in southern Tamil Nadu.
Both the father and the son ran a cell phone shop at Sathankulam town, which was opened 15 minutes after the curfew on June 18, during the COVID-induced lockdown.
Jeyaraj allegedly made several negative remarks about the police patrol unit on June 18, ordering shop owners to close down stores early for locking laws. The auto driver had told the police about the comments, and the police team had come to take him in custody the very next day. After Jeyaraj was taken into custody by an angry police team, his son, J Fenix, followed the police team to the station.
At the Sathankulam police station, a senior police officer said that Bennix saw his father getting physically harassed by an cop. An angry Fenix confronted the cop, attempted to hinder the officer, or pressured him to safeguard his father. “It had provoked the police team, they thrashed both father and son for hours. There were two sub-inspectors and two constables in the torture team. A total of 13 officers were there at the station during the incident, including volunteer’s part of Friends of Police,” the officer said.
This was a direct abuse of the police's arresting authority, as the store was shut down within 15 minutes. The next day, however, the two were arrested and charged with what appears to be an exaggerated count of charges. Even though two FIRs have been filed, no policeman has been charged with murder charges. Regarding the uproar and protest movements, four police officers, including two sub-inspectors, were suspended. The inspector for the station has been transferred. The judicial investigation is ongoing, the post-mortem report has been submitted to the High Court of Madras in a sealed form, and the court is awaiting a police report.
The causes of these barbarous actions by the police must be thoroughly examined and reviewed, so that effective steps can be taken to nip these behaviors in the bud. The judiciary needs to start paying a little more consideration to such a horrific and extreme abuse of authority and examine the complaints and bring the wrongdoer to justice. Clear and unmistakable instructions need to be issued to police departments that unwarranted use of force and authority can just bring them trouble.
The Supreme Court has in a recent case of Laxmi Singh and others vs Rekha Singh and others passed a Judgment dated 19-06-2020 and reiterated that a voter cannot be compelled to disclose information about read more
The Supreme Court has in a recent case of Laxmi Singh and others vs Rekha Singh and others passed a Judgment dated 19-06-2020 and reiterated that a voter cannot be compelled to disclose information about whom he/she has voted in an election by way of secret ballot under the Representation of the People Act, 1951 (the Act). Furthermore, a voter cannot be prevented from voluntarily waiving such right to secrecy and choosing to reveal his/her ballot information to third parties.
To read more, please visit the link below:
#supremecourt #secrecy #voting #disclosure #ballot #election #lawyered #getlawyered
The High Court of Madhya Pradesh has pronounced vide its Order dated 09.06.2020 in the case of Bhupendra Suryawanshi v. Sai Traders[M. Cr. C No. 735 of 2020] that a representative of a company cannot read more
The High Court of Madhya Pradesh has pronounced vide its Order dated 09.06.2020 in the case of Bhupendra Suryawanshi v. Sai Traders[M. Cr. C No. 735 of 2020] that a representative of a company cannot be prosecuted under Section 138 of Negotiable Instrument Act, 1881 (‘the N.I. Act’) unless the company is impleaded as a party.
To read more, please visit the link below:
#negotiableinstrument #cheque #court
Public Interest Foundation v. Union of India:Case SynopsisINTRODUCTION:It is a landmark case in which the Hon'ble Supreme Court of India has issued guidelines and directions to curtail the criminalization read more
Public Interest Foundation v. Union of India:Case Synopsis
INTRODUCTION:
It is a landmark case in which the Hon'ble Supreme Court of India has issued guidelines and directions to curtail the criminalization of politics in India. The petition was filed by BJP leader Ashwini Upadhyay and the NGO Public Interest Foundation. The petition was filed to seek guidance from the Apex Court of India about the criminalization of politics and limitations on the criminalization of contesting elections.
FACTS:
There have been many writ petitions filed in this case, but the most important one is the one filed in 2011 to seek direction from the Apex Court of India regarding the criminalization of politics and restrictions on the criminalization of contesting elections. In its landmark judgment of 25 September 2018, the Five-Judge Constitutional Bench of the Supreme Court held that candidates contesting the election could not be disqualified simply because they were charged in a criminal case.
ISSUES:
Whether the court can lay down any disqualification for membership of Parliament beyond Article 102(a) to (d) and Parliament's legislation under Article 102(e)?
ARGUMENTS:
• The petitioners proposed that the court should order the Election Commission to prohibit political parties from issuing tickets or accepting support from independent candidates with criminal records. Referring to the 1968 Election Symbols (Reservation and Allocation) Order, it was also claimed that the assigning of an election symbol to a recognised political party should be cancelled if it is found to be in violation of the EC 's mandate.
• It was also argued that the person who breaks law should not be allowed to become lawmakers, since the right to contest elections is not a fundamental right.
• The Respondents, on the other hand, argued that the principle of separation of powers is being followed in India and that the Court did not have the power to make laws.
• This was also argued that Art. 142 of the Constitution of India (COI)does not grant the Court the power to add terms to existing legislation.
JUDGEMENT:
The Five - Judge of the Constitution Bench ruled that candidates should not be excluded solely because they were convicted in a criminal case. The bench also advised the legislature to consider changing the legislation to facilitate the decriminalization of politics. The Court further held that candidate must fill out the form as given by the Election Commission and the form must contain all the information as needed. The form must state in bold letters, in recognition of the criminal proceedings pending against the nominee. When a candidate seeks an election on the ticket of a specific party, he / she is expected to notify the party of the criminal proceedings pending against him / her. The political party concerned shall be obligated to make available on its website the details referred to above concerning candidates with a criminal record. Both the candidate and the political party concerned shall make a declaration in the widely circulated local newspapers about the candidate's history and shall also make a large publicity in the electronic media.
CRITICAL ANALYSIS:
The Supreme Court limited itself to mandating all candidates contesting the election to be accountable to their respective parties and to the general public for any criminal cases pending against them. The court took the view that the problem was one of the information gaps for the voters. It's either naive or a witty dream. While Supreme Court had already ordered the release of criminal records in 2003, the proportion of parliamentarians facing serious criminal charges and criminal charges grew steadily from 24% and 12% in 2004 to 30% and 15% in 2009 and 34% and 21% in 2014, respectively. Indeed, a candidate facing a criminal case was three times as likely to win the elections as one without them.
Altusried, Germany
Navi Mumbai, India
Asansol, India
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All payments by SoOLEGAL to you shall be made subject to any applicable withholding taxes under the applicable Law. SoOLEGAL will retain, in addition to its net Fees, an amount equal to the legally applicable withholding taxes at the applicable rate. You are responsible for deducting and depositing the legally applicable taxes and deliver to SoOLEGAL sufficient Documents/ Advice evidencing the deposit of tax. Upon receipt of the evidence of deduction of tax, SoOLEGAL will remit the amount evidenced in the certificate to you. Upon your failure to duly deposit these taxes and providing evidence to that effect within 5 days from the end of the relevant month, SoOLEGAL shall have the right to utilize the retained amount for discharging its tax liability.
Where you have deposited the taxes, you will issue an appropriate tax withholding certificate for such amount to SoOLEGAL and SoOLEGAL shall provide necessary support and Documents/ Adviceation as may be required by you for discharging your obligations.
SoOLEGAL has the option to obtain an order for lower or NIL withholding tax from the Indian Revenue authorities. In case SoOLEGAL successfully procures such an order, it will communicate the same to you. In that case, the amounts retained, shall be in accordance with the directions contained in the order as in force at the point in time when tax is required to be deducted at source.
Any taxes applicable in addition to the fee payable to SoOLEGAL shall be added to the invoiced amount as per applicable Law at the invoicing date which shall be paid by you.F.11. Indemnity
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Category and Documents/ Advice RestrictionsCertain Documents/ Advices cannot be listed or sold on SoOLEGAL site as a matter of compliance with legal or regulatory restrictions (for example, prescription drugs) or in accordance with SoOLEGAL policy (for example, crime scene photos). SoOLEGAL's policies also prohibit specific types of Documents/ Advice content. For guidelines on prohibited content and copyright violations, see our Prohibited Content list. For some Documents/ Advice categories, REGISTERED USERS may not create Documents/ Advice listings without prior approval from SoOLEGAL. |
In addition to your obligations under Section 6 of the Transaction Terms & Conditions, you also agree to indemnify, defend and hold harmless us, our Affiliates and their and our respective officers, directors, employees, representatives and agents against any Claim that arises out of or relates to: (a) the Units (whether or not title has transferred to us, and including any Unit that we identify as yours pursuant to Section F-4 regardless of whether such Unit is the actual item you originally sent to us), including any personal injury, death or property damage; and b) any of Your Taxes or the collection, payment or failure to collect or pay Your Taxes.
Registered Users must at all times adhere to the following rules for the Documents/ Advices they intend to put on Transaction:
The "Add a Documents/ Advice" feature allows REGISTERED USERS to create Documents/ Advice details pages for Documents/ Advices.
The following rules and restrictions apply to REGISTERED USERS who use the SoOLEGAL.in "Add a Documents/ Advice" feature.
Using this feature for any purpose other than creating Documents/ Advice details pages is prohibited.
Any Documents/ Advice already in the SoOLEGAL.in catalogue which is not novel and/ or unique or has already been provided by any other Registered User which may give rise to Intellectual Property infringement of any other Registered User is prohibited.
Detail pages may not feature or contain Prohibited Content or .
The inclusion of any of the following information in detail page titles, descriptions, bullet points, or images is prohibited:
Information which is grossly harmful, harassing, blasphemous, defamatory, pedophilic, libelous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, pornographic, obscene or offensive content or otherwise unlawful in any manner whatever.
Availability, price, condition, alternative ordering information (such as links to other websites for placing orders).
Reviews, quotes or testimonials.
Solicitations for positive customer reviews.
Advertisements, promotional material, or watermarks on images, photos or videos.
Time-sensitive information
Information which belongs to another person and to which the REGISTERED USER does not have any right to.
Information which infringes any patent, trademark, copyright or other proprietary rights.
Information which deceives or misleads the addressee about the origin of the messages or communicates any information which is grossly offensive or menacing in nature.
Information which threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting any other nation.
Information containing software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource.
Information violating any law for the time being in force.
All Documents/ Advices should be appropriately and accurately classified to the most specific location available. Incorrectly classifying Documents/ Advices is prohibited.
Documents/ Advice titles, Documents/ Advice descriptions, and bullets must be clearly written and should assist the customer in understanding the Documents/ Advice. .
All Documents/ Advice images must meet SoOLEGAL general standards as well as any applicable category-specific image guidelines.
Using bad data (HTML, special characters */? etc.) in titles, descriptions, bullets and for any other attribute is prohibited.
Do not include HTML, DHTML, Java, scripts or other types of executables in your detail pages.
Prohibited REGISTERED USER Activities and Actions
SoOLEGAL.com REGISTERED USER Rules are established to maintain a transacting platform that is safe for buyers and fair for REGISTERED USERS. Failure to comply with the terms of the REGISTERED USER Rules can result in cancellation of listings, suspension from use of SoOLEGAL.in tools and reports, or the removal of transacting privileges.
Attempts to divert transactions or buyers: Any attempt to circumvent the established SoOLEGAL Transactions process or to divert SoOLEGAL users to another website or Transactions process is prohibited. Specifically, any advertisements, marketing messages (special offers) or "calls to action" that lead, prompt, or encourage SoOLEGALusers to leave the SoOLEGAL website are prohibited. Prohibited activities include the following:
The use of e-mail intended to divert customers away from the SoOLEGAL.com Transactions process.
Unauthorised & improper "Names": A REGISTERED USER's Name (identifying the REGISTERED USER's entity on SoOLEGAL.com) must be a name that: accurately identifies the REGISTERED USER; is not misleading: and the REGISTERED USER has the right to use (that is, the name cannot include the trademark of, or otherwise infringe on, any trademark or other intellectual property right of any person). Furthermore, a REGISTERED USER cannot use a name that contains an e-mail suffix such as .com, .net, .biz, and so on.
Unauthorised & improper invoicing: REGISTERED USERS must ensure that the tax invoice is raised in the name of the end customer who has placed an order with them through SoOLEGAL Payment Systems platform . The tax invoice should not mention SoOLEGAL as either a REGISTERED USER or a customer/buyer. Please note that all Documents/ Advices listed on SoOLEGAL.com are sold by the respective REGISTERED USERS to the end customers and SoOLEGAL is neither a buyer nor a REGISTERED USER in the transaction. REGISTERED USERS need to include the PAN/ Service Tax registration number in the invoice.
Inappropriate e-mail communications: All REGISTERED USER e-mail communications with buyers must be courteous, relevant and appropriate. Unsolicited e-mail communications with SoOLEGAL , e-mail communications other than as necessary and related customer service, and e-mails containing marketing communications of any kind (including within otherwise permitted communications) are prohibited.
Operating multiple REGISTERED USER accounts: Operating and maintaining multiple REGISTERED USER accounts is prohibited.
In your request, please provide an explanation of the legitimate business need for a second account.
Misuse of Search and Browse: When customers use SoOLEGAL's search engine and browse structure, they expect to find relevant and accurate results. To protect the customer experience, all Documents/ Advice-related information, including keywords and search terms, must comply with the guidelines provided under . Any attempt to manipulate the search and browse experience is prohibited.
Misuse
of the ratings, feedback or Documents/ Advice reviews: REGISTERED
USERS cannot submit abusive or inappropriate feedback entries,
coerce or threaten buyers into submitting feedback, submit
transaction feedback regarding them, or include personal information
about a transaction partner within a feedback entry. Furthermore,
any attempt to manipulate ratings of any REGISTERED USER is
prohibited. Any attempt to manipulate ratings, feedback, or
Documents/ Advice reviews is prohibited.
Reviews: Reviews
are important to the SoOLEGAL Platform, providing a forum for
feedback about Documents/ Advice and service details and reviewers'
experiences with Documents/ Advices and services –
positive
or negative. You may not write reviews for Documents/ Advices or
services that you have a financial interest in, including reviews
for Documents/ Advices or services that you or your competitors deal
with. Additionally, you may not provide compensation for a review
(including free or discounted Documents/ Advices). Review
solicitations that ask for only positive reviews or that offer
compensation are prohibited. You may not ask buyers to modify or
remove reviews.
Prohibited Content
REGISTERED USERS are expected to conduct proper research to ensure that the items posted to our website are in compliance with all applicable laws. If we determine that the content of a Documents/ Advice detail page or listing is prohibited, potentially illegal, or inappropriate, we may remove or alter it without prior notice. SoOLEGAL reserves the right to make judgments about whether or not content is appropriate.
The
following list of prohibited Documents/ Advices comprises two
sections: Prohibited Content and Intellectual Property
Violations.
Listing
prohibited content may result in the cancellation of your listings,
or the suspension or removal of your transacting privileges.
REGISTERED USERS are responsible for ensuring that the Documents/
Advices they offer are legal and authorised for Transaction or
re-Transaction.
If
we determine that the content of a Documents/ Advice detail page or
listing is prohibited, potentially illegal, or inappropriate, we may
remove or alter it without prior notice. SoOLEGAL reserves the right
to make judgments about whether or not content is appropriate.
Illegal and potentially illegal Documents/ Advices: Documents/ Advices sold on SoOLEGAL.in must adhere to all applicable laws. As REGISTERED USERS are legally liable for their actions and transactions, they must know the legal parameters surrounding any Documents/ Advice they display on our website.
Offensive material: SoOLEGAL reserves the right to determine the appropriateness of listings posted to our website.
Nudity: In general, images that portray nudity in a gratuitous or graphic manner are prohibited.
Items that infringe upon an individual's privacy. SoOLEGAL holds personal privacy in the highest regard. Therefore, items that infringe upon, or have potential to infringe upon, an individual's privacy are prohibited.
Intellectual Property Violations
Counterfeit merchandise: Documents/ Advices displayed on our website must be authentic. Any Documents/ Advice that has been illegally replicated, reproduced or manufactured is prohibited.
Books - Unauthorised copies of books are prohibited.
Movies - Unauthorised copies of movies in any format are prohibited. Unreleased/prereleased movies, screeners, trailers, unpublished and unauthorized film scripts (no ISBN number), electronic press kits, and unauthorised props are also prohibited.
Photos - Unauthorised copies of photos are prohibited.
Television Programs - Unauthorised copies of television Programs (including pay-per-view events), Programs never broadcast, unauthorised scripts, unauthorised props, and screeners are prohibited.
Transferred media. Media transferred from one format to another is prohibited. This includes but is not limited to: films converted from NTSC to Pal and Pal to NTSC, laserdisc to video, television to video, CD-ROM to cassette tape, from the Internet to any digital format, etc.
Promotional media: Promotional versions of media Documents/ Advices, including books (advance reading copies and uncorrected proofs), music, and videos (screeners) are prohibited. These Documents/ Advices are distributed for promotional consideration and generally are not authorized for Transaction.
Rights of Publicity: Celebrity images and/or the use of celebrity names cannot be used for commercial purposes without permission of a celebrity or their management. This includes Documents/ Advice endorsements and use of a celebrity's likeness on merchandise such as posters, mouse pads, clocks, image collections in digital format, and so on.
YOU HAVE AGREED TO THIS TRANSACTION TERMS BY CLICKING THE AGREE BUTTON