Mentoassociates.com – Legal Articles

The Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain lands) Act, 1978 prohibits transfer of lands granted by the Government to persons belonging to the Schedule Castes and Schedule tribes in the state. The Object of the Act is to give effect to Directive principles of State Policy contained in Article 46 of the Constitution.

As per section 4 of the said Act, any transfer of granted lands made before or after the commencement of the said act, in contravention of the terms of the said grant shall be null and void and the transferee gets no right, title or interest in such land. However a transfer of granted land with the previous permission of the Government is perfectly legal. The Deputy Commissioner is the competent authority to give such permission. The word ‘transfer’ means and includes sale, gift, exchange, mortgage etc.

Transfer of granted land in breach of conditions of grant is void. Government is entitled to resume such land and restore it to grantee or his legal heirs. A transfer, even to an SC/ST person in violation of the conditions of grant is null and void.

The registrars are prohibited from registering the transfer of granted lands and the office of registrars are provided with a list of granted lands coming within their jurisdiction. The Act even provides for imprisonment, which may extend to 6 months or fine, which may extend to two thousand rupees or both for contravention of the provisions of the above act.

The Karnataka Rent Act 1999 and Rules 2001 require registration of middlemen, brokers or agents. The Middleman or broker shall register his name with the Rent Controller of his area by filing an application in form 8 and paying a registration fee of Rs 200/- only. The Controller after scrutiny of the application issues a certificate of registration in Form No.9, which is valid for a period of 5 years, and the agent shall renew his registration after the said period. The renewal fee is Rs 200/-. The said persons shall submit to the Rent Controller of the area a statement in the prescribed form showing their names, place of business and area of activity.

The middlemen or agent or broker shall within 10 days from the last day of each quarter of every calendar year, file return giving details of every transaction handled by him during the quarter, and the brokerage or commission received by him in each case.

Every middleman or Estate Agent who fails to register his name with the Rent Controller on conviction shall be punishable with fine up to two thousand rupees or with simple imprisonment for a term up to one month or both and also shall be liable to fine of rupees two hundred for each day of continuing default till he complies with law. Further every agent who fails to submit a statement as mentioned above shall on conviction be punishable with fine up to one thousand rupees or with simple imprisonment for a term up to one month.

With the advent of globalization, the Indian economy was opened up removing controls and a policy of liberalization is being followed in every aspects of Indian economy. As a result the Indian market was forced to competition from inside and outside. It was felt that the Monopolies and Restrictive Trade Practices Act 1969, was outdated to match with the international economic developments and the necessity was felt to enact a new Law to promote competition and to curb monopolies.

The Act provides for the establishment of a Competition Commission to prevent practices, having adverse effect on competition to promote and sustain competition in markets, to protect the interests of consumers and to ensure freedom of trade carried on by other participants in markets, in India, and for matters connected therewith or incidental thereto. As per the Act no enterprise shall abuse its dominant position in the economy and also it prohibits combinations by enterprises which are likely to cause an adverse effect on competitions with in the relevant market in India.

The Competition Commission shall consist of a chairperson and not less than two and not more than ten members to be appointed by the Central Government. The Commission can enquire into contraventions of the provisions of the Act, on the basis of complaints received by it or on a reference made to it by the central or state government or a statutory authority.

The Jurisdiction, powers and authority of the Commission may be exercised by Benches which shall be constituted by the Chairperson .The Bench shall consists of not less than two members.

On receipt of a complaint or a reference from the Central Government, or a Statutory authority or on its own knowledge or information, the Commission is of the opinion that there exists a prima facia case, shall direct the Director General to cause an investigation to be made into the matter.

The Commission can levy penalty for contravention of its orders, failure to comply with its directions, making of false statements or omission to furnish material information, etc. Further the Commission can levy upon an enterprise a penalty of not more than 10% of its average turnover for the last three financial years. It can also order division of dominant enterprises. It will also have power to order demerger in the case of mergers and amalgamations that adversely affect competition.

The act provides for a fund called the Competition fund. The grants given by the Central Government, fees received under the Act and costs realized by the Commission and application fees charged will be credited into this Fund.

The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002, was a remarkable peace of legislation with an objective to regulate securitisation and reconstruction of financial assets and enforcement of security interest and for matters connected thereto.

As per Sec 13 of the said Act any security interest created in favour of a secured creditor may be enforced with out the intervention of the court or tribunal. Where any borrower makes any default in repayment of any secured debt or any installment thereof and his account is a non performing asset, then the secured creditor may require the borrower, by notice in writing to discharge in full, his liabilities to the secured creditor within 60 days from the date of the notice.

If on receipt of such a notice, the borrower raises any objection, the secured creditor shall consider such representation or objection and if the secured creditor finds that such objection is not acceptable, he shall communicate within one week of such objection the reasons for non-acceptance of the objections.

In case the borrower fails to discharge his liability within 60 days period, the secured creditor may: –

a) take possession of secured assets of the borrower including the right to transfer by way of lease, assignment or sale, for releasing the secured assets.

b) Take over the management of the business of the borrower including the right to transfer by way of lease, assignment or sale, for releasing the secured assets.

The secured creditor may, by notice in writing, require any person who has acquired any of the secured assets from the borrower and from whom any money is due to the borrower to pay the secured creditor so much of the money as is sufficient to pay the secured debt. All costs, charges and expenses incurred by the creditor for the purpose of taking possession of the secured assets shall be recoverable from the borrower.

If the dues are paid by the borrower, at any time before the date of sale, the secured assets shall not be sold or transferred by the secured creditor. If the dues of the secured creditor are not fully satisfied with the sale proceeds of the secured assets, the creditor may file an application to the DRT for recovery of the balance amount from the borrower.

The secured creditor, instead of acting under his Act can first proceed against the guarantors or sell the pledged assets. No borrower shall transfer his assets after the receipt of the notice, without written consent of the secured creditor. The secured creditor can seek the assistance of Chief Metropolitan Magistrate to take possession of the secured assets and documents relating thereto.

The term Non Resident Indian (for brevity NRI) is widely being used, without knowing its exact meaning. Let us see how law defines an NRI.

Income Tax Act, 1961 defines “resident”, “not ordinarily resident” and “non resident”.

An individual is said to be a resident in India in any previous year, in the following two cases:
(a) if he is in India in that year for a period amounting in all to 182 days or more.
(b) if he was in India for 365 days or more within four years preceding the previous year, and he is in India for a period of 60 days or more in the previous year.

Previous year here means, the previous financial year, commencing from 1st April and ending on 31st March.

If a person who is an Indian citizen, leaves India in a previous year, for the purpose of employment outside India, he will be treated as a resident of India, only if he was in India for 365 days or more within four years preceding the previous year, and he is in India for a period of 182 days or more in the previous year.

If a person who is an Indian citizen, or a Person of Indian Origin comes on a visit to India from out side India, in a previous year, he will be treated as a resident of India, only if he was in India for 365 days or more within four years preceding the previous year, and he is in India for a period of 182 days or more in the previous year. 

DIN (Director Identification Number) is a unique identification number for a person who is a director of a company or who intends to become the director of a company. It is mandatory for e- filing of certain company related documents. It is even mandatory for directors of Indian companies who are not citizens of India. Hence this is the first pre requisite for a person intending to set up a company. However a single DIN is enough for a person who is a director of several companies.

The Ministry of Company Affairs grants DIN to individuals. The application can be obtained on line. Initially a provisional DIN will be given to an applicant. The provisional DIN can be used for e fling until DIN is approved and activated by MCA DIN Cell. Once a provisional DIN is obtained, the applicant shall apply to MCA in the prescribed application form along with photographs and duly attested photocopies of identity and residence. The MCA Din Cell will process the form and on approval the DIN confirmation and activation letter will be sent to the applicant. An e mail will also be sent to the applicant in this regard. The status for the DIN application can be checked in the MCA portal, on line.

High Courts exercising the power under Article 226 of the Constitution can issue writs of Habeas Corpus. It is a writ in the nature of an order calling upon the person who has detained another to produce the latter before the court, in order to let the court know on what ground he has been confined and to set him free if there is no legal jurisdiction for the imprisonment. An application for Habeas Corpus can be filed by the near and dear of the individual detained or even by a stranger or a social worker.

Under Article 226, a petition for Habeas Corpus would lie not only when a person is detained by the state, but also when he is detained by another private individual. The custody of a minor child can be obtained by a rightful parent under a Habeas Corpus proceeding. Similarly, Habeas Corpus is available to a husband to regain the custody of his wife.

Where it is shown that the petitioner was arrested and imprisoned with mischievous and malicious intent, the court shall have the power to compensate the petitioner by awarding suitable monetary compensation or exemplary costs.

To decline to give effect to an order of release passed on an application for Habeas Corpus amounts to contempt of court punishable by imprisonment and attachment.

The Karnataka State Consumer Disputes Redressal Commission is located at Basavabhavan, Bangalore. The commission consists of a president and two members. Any person who is aggrieved by an order made by the district forum may file an appeal against such order to the State Commission, within a period of 30 days from the date of the order.

Consumer complaints where the value of the goods or services and compensations, if any, claimed exceeds Rs. Twenty Lakhs but does not exceed Rs. One Crore, shall be filed directly to the State Commission.

The commission is empowered to call for the records and pass appropriate orders in any consumer disputes, which is pending before or has been decided by any District Forum within the State, where it appears to the State Commission, that such District Forum has exercised a Jurisdiction not vested in it by Law, or has failed to exercise a jurisdiction so vested, or has acted in exercise of its Jurisdiction illegally or with material irregularity.

The State commission may, at any stage of the proceedings, transfer any complaint pending before the District Forum to another District Forum within the state if the interests of justice so requires.

Every criminal case registered in a police station, will be treated as a state case and in the ordinary course, it will be the government which will take up the case on behalf of the complainant. The public prosecutors conduct such criminal cases in the courts on behalf of the Government and the Complainant.

For every high court there will be a Public prosecutor as well as Additional Public Prosecutors who will be appointed by the Central Government as well as the state Government to conduct their cases. For every district, the state Government shall appoint a Public prosecutor as well as Additional public prosecutors. Only an advocate with a practice of a minimum of seven years can be appointed as a Public prosecutor.

In sensational criminal cases, the State Government may appoint an advocate as a Special public Prosecutor. The said person shall have a minimum practice of 10 years as an advocate.

The State Government shall appoint in every district, one or more Assistant Public Prosecutors for conducting prosecutions in the Courts of Magistrates.

Any marriage solemnized under the Special Marriage Act shall be null and void and may on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if-

(i)                any of the conditions of section 4 has not been fulfilled; or

(ii)              the respondent was impotent at the time of marriage and at the time of institution of the suit.

Any marriage solemnized under the Special Marriage Act, shall be voidable and may be annulled by a decree of nullity if

(i)                the marriage has not been consummated owing to the willful refusal of the respondent to consummate the marriage; or

(ii)              the respondent was at the time of marriage pregnant by some person other than the petitioner; or

(iii)            the consent of either party in the marriage was obtained by coercion or fraud, as defined in the Indian Contract Act, 1872:

Provided that, in the case specified in clause (ii), the court shall not grant, a decree unless it is satisfied-

(a)     that the petitioner was at the time of marriage ignorant of the facts alleged;

(b)    that proceedings were instituted within a year from the date of the marriage; and

(c)    that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree;

Provided further that in the case specified in clause (iii), the court shall not grant a decree if-

(a)    Proceedings have not been instituted within one year after the coercion had ceased or, as the case may be, the fraud had been discovered; or

(b)   The petitioner has with his or her free consent lived with the other party to the marriage as husband and wife after the coercion had ceased or, as the case may be, the fraud had been discovered.