Mentoassociates.com – Legal Articles

The Foreign Contribution (Regulation) Act 1976 regulates the acceptance and utilization of foreign contributions or foreign hospitality by people and associations in India. The act prohibits acceptance of foreign contribution by any:
a.Candidate for election
b.Correspondent, columnist, cartoonist, editor, owner, printer or publisher of a registered news paper.
c.Judge, Government servant or employee of any corporation
d.Member of any legislature
e.Political party or office-bearer thereof.

Organizations which are not a political party, but which have a political nature can accept foreign contribution only with prior permission of Central Government.
Associations like trust, society, companies etc with a definite cultural, economic, educational, religious or social program can accept foreign contribution, only if they register with Central Government. Further such associations are permitted to receive foreign contribution only through a particular branch of a bank of their choice. Such an association shall give intimation to the Central Government regarding the amount of each foreign contribution received by it, the source and manner of receipt, purpose and manner for which such foreign contribution was utilized.
Every citizen of India who receives any scholarship or stipend from any foreign source shall give intimation to the Central Government regarding the amount, source and purpose of the said scholarship or stipend. If the amount of such scholarship or stipend does not exceed Rs 36,000/- per annum, the recipient is not bound to give intimation to the central government. No member of a legislature, office bearer of a political party, judge, government servant or employee of any corporation shall, while visiting any country outside India, accept any foreign hospitality except with the prior permission of the Central government. This restriction is not applicable for receipt of emergent medical aid during such visits. Further, a member of an Indian delegation is permitted to accept a gift from a foreign source, during a foreign trip, subject to the regulations made by the Central government in this regard.
A foreign hospitality shall mean any offer made by a foreign source, for providing a person with the costs of travel to any foreign country or with free board, lodging, transport or medical treatment. A foreign source does not include NRIs but the same shall include PIOs.
Associations, organizations, trusts, societies etc. receiving foreign contribution shall maintain proper accounts in that regard.
Acceptance of salary, wages or other remuneration by a person, from any foreign source by way of payment in the ordinary course of business transacted in India is not prohibited by the Act.

Courts are empowered for appointment of receivers for the management and protection of any property. The Court can remove a person from the possession or custody of any property and can commit the said property to the custody, management and possession of the receiver, appointed by the Court. Normally the court appoints the receiver for the management of the property, when it appears to the court that the property may be mismanaged or lowered in its worth in the custody of the present possessor. The receiver may be appointed before or after decree is passed in a case pending before the court.

The following are the powers of a receiver appointed by the Court:
a) To bring and defend suits
b) To realize, manage, protect, preserve and improve   property.
c) To collect rents and profits and to apply and dispose rents and profits of the property and to execute documents as     the owner himself has.
d) Other powers, the Court deems fit.

The receiver is entitled for remuneration as fixed by the court for the services rendered by him.
The following are the duties of the receiver:
a) To furnish security if the court thinks fit, duly to account for what he shall receive in respect of the said property.
b) To submit the accounts.
c) To pay the amount due from him.
d) To be responsible for any loss caused to the property by his willful default or gross negligence.    

A transaction in which property is transferred to one person for a consideration paid or provided by another person is called Benami transaction. The Benami Transaction (Prohibition) Act, 1988, prohibits Benami transactions.
The following are not Benami transactions:
a.Purchase of property by any person in the name of his wife or unmarried daughter.
b.The securities held by a depository as a registered owner.
c.The security held by a participant as an agent of depository.

A person who enters into a Benami transaction is liable for imprisonment for a term which may extent to 3 years or with fine or with both. A real owner cannot file a suit for the property against the Benami owner. However, a coparcener in a Hindu undivided family can enforce his rights in the property which is held for the benefit of the coparceners in the family.The government can acquire all properties which are held Benami without any compensation amount being paid.When a trustee or other person in a fiduciary capacity holds property for the benefit of another person, the same cannot be said to be a Benami transaction.

An agreement which is not enforceable by law is said to be a void agreement. An agreement which can be enforceable by law is said to be a contract. The Indian Contract Act, 1872, enlists the following cases as void agreements.

1) All agreements are void if considerations and objects are unlawful. The consideration or objects are unlawful, if it is forbidden by law, is fraudulent, involves injury to the person or property of another, is immoral, is against public policy or has tendency to defeat the provisions of any law.
2) An agreement without consideration is void unless it is in writing and registered and is made between closely related parties on account of natural love and affection.
3) Agreement in restraint of marriage, other than that of a minor, is void.
4) Every agreement by which any one is restrained from exercising a lawful profession, trade or business of any kind, is to that extend void.
5) Agreement by which any party is barred from enforcing his rights through legal proceedings is void.
6) When there is no certainty in the agreement, the same is void
7) Agreements by way of wager are void.
8) Contingent agreements on impossible events are void.
9) Where both the parties to an agreement are under a mistake as to a matter of fact essential to an agreement, the agreement is  void.

There are about 20 million People of Indian Origin found all over the world. A PIO is one who has held an Indian passport anytime earlier or whose parents or grandparents or great grand parents were citizens of India having born and permanently resided here. However citizens of Pakistan and Bangladesh cannot be a PIO.

The Government of India started the PIO card scheme with effect from 31-03-99. As per a union home ministry 2002 notification, PIO card is provided even to foreign nationals married to Indian citizens or PIO. There is an international association of PIO called Global Organization of People of Indian Origin (GOPIO). 

There are several advantages for a person with a PIO card. They are entitled for visa free entry into India, have equal rights as NRI over property matters, their children can study in Indian institutions under NRI category. They need not report their presence in FRRO (Foreigners Regional Registration Office) up to 180 days. After 180 days, they need to report their presence to the nearest FRRO, within 30 days. However they have no political or voting rights in India.

PIO who are out of India can apply for the PIO Card, through concerned Indian embassy/High commission /Consulate. Those who are in India on a long term visa for more than one year can apply through concerned FRRO at Delhi, Mumbai, Chennai and Calcutta. Those living in other areas can apply to Joint Secretary (Foreigners), Ministry of Home Affairs located at 1st floor, Loknayak Bhavan, Khan Market, New Delhi. Citizens of Pakistan and Bangladesh cannot get PIO card. Government can reject an application without assigning any reason.

Documents required may include:
A) For applications based on spouse:
a) Original Indian passport of wife/husband
b) Original PIO card of husband / wife
c) Original marriage certificate

B) For applications based on PIO definition:
a) Parent’s birth certificate
b) Grand Parent’s or Great Grand parent’s birth certificate 
Apart from this there may be other documents asked by the authorities at the time of filing of the application.

This is a very important piece of legislation giving vital rights to woman employees. It applies to women employed in factories, mines, plantations, shops or establishments in which 10 or more persons are employed. As per section 4 of the act, employers are prohibited from employing a woman during the six weeks following the day of her delivery, miscarriage or medical termination of pregnancy. Even woman are not permitted to work in any establishment during 6 weeks following the day of her delivery. A pregnant woman has a right to take leave on a request to her employer for a period of one month preceding the period of 6 weeks, before her date of delivery, if she is employed in an arduous work, or one which involves long hours of standing, or something adversely affecting her health or the normal development of the foetus. Every woman is entitled to the payment of maternity benefit at the rate of average daily wage for the period of her actual absence for delivery. The maximum period for which any woman shall be entitled to maternity benefit shall be twelve weeks of which not more than six weeks shall precede the date of her expected delivery. A woman employee can issue a notice to her employer stating that the maternity benefit to which she is entitled may be paid to her or her nominee and that she will not work for the period of maternity benefit. The said notice shall state the date from which she will be absent, date shall not be earlier than six weeks from the date of her expected delivery.Every women entitled to maternity benefit is also entitled to receive from her employer a medical bonus of Rs.250/-. In case of miscarriage or MTP, a woman shall be entitled to leave with wages for a period of 6 weeks following the miscarriage or MTP. In case of tubectomy, a woman shall be entitled to leave with wages for a period of two weeks immediately following the day of tubectomy.A women suffering from illness rising out of pregnancy, delivery, premature birth, miscarriage, MTP or tubectomy shall be, in addition to the normal maternity leave, entitled to leave with wages for a maximum period of 1 month.Every woman, who has delivered  a child, who returns to duty after such delivery is entitled to two breaks for nursing her child, during the daily course of her work, until her child attains the age of 15 months.The act also provides for appointment of inspectors who have wide powers for the enforcement of various provisions of the act. Further there are various penalties imposed on the employers who violate the provisions of the act. In addition, it is the duty of every employer to exhibit an abstract of the Maternity Benefit Act, 1961 in a conspicuous place in every part of an establishment in which women are employed.

Recently an order was passed by the Central Government which will benefit women working in government sector. Accordingly a women is entitled for a maternity leave of 180 days and paid leave upto two years for child care.

A marriage between an Indian citizen and a foreign citizen can be registered in India, under the Special Marriage Act, 1954. The conditions are:

a) The male should complete 21 years and the female should complete 18 years.

b) Both the parties should have soundness of mind to give a valid consent and they should not be having any mental disorder or insanity.

c) The parties should not have a spouse living at the time of the marriage.

The parties shall give a notice of intention of their marriage to the marriage officer within whose jurisdiction, at least one of them reside. The marriage officer will publish a copy of such notice in his office and will also send a copy of the notice to the office of the marriage officer, within whose jurisdiction the other party resides. Any person having any objection to the marriage should intimate the marriage officer, within 30 days of the publication of the above notice. On receipt of any objection, the marriage officer shall enquire into the same and pass an order in this regard. If the marriage officer upholds objection and refuses to solemnize the marriage, then the aggrieved party has to approach the district court for an appeal.  If the marriage officer overrules the objections, then the marriage can be solemnized. Three witnesses are required to sign a declaration witnessing the solemnization of the marriage. After the solemnization, the marriage officer will issue a certificate of marriage. The normal documents required are age proof, address proof and identity proof documents, in addition to photographs.

NRIs and PIOs can purchase residential and commercial property in India. To purchase agricultural and plantation lands, they require special permission of the Reserve Bank of India.Foreign nationals of non-Indian origin, who are resident outside India, cannot purchase immovable property in India. But they can take a property on lease for residential purpose, for a term not exceeding more than 5 years. A foreign national who is a person resident in India can purchase immovable property, provided they take all the approvals from the concerned state government and other authorities. However, this benefit is not applicable for the citizens of Nepal, Bhutan, Bangladesh, Afghanistan, Pakistan, Sri Lanka, Iran and China. Citizens of these countries require prior permission from Reserve Bank of India.A foreign company which has a place of business in India is entitled to acquire immovable property in India for the purpose of undertaking activities of such a company. Again companies which are incorporated in Nepal, Bhutan, Bangladesh, Afghanistan, Pakistan, Sri Lanka, Iran and China having place of business in India need prior approval of Reserve Bank of India  to acquire immovable property.

NRIs and PIOs can acquire immovable property in India by way of gift from a person resident in India, NRI or a PIO. However, only residential and commercial properties can be acquired by way of gift. Agricultural and plantation properties cannot be acquired by way of gift. NRIs and PIOs and can inherit immovable property from a person resident in India, NRI or a PIO. However citizens of Nepal, Bhutan, Bangladesh, Afghanistan, Pakistan, Sri Lanka, Iran and China need prior permission of the Reserve Bank of India in this regard. For NRIs and PIOs, the payments required for purchasing immovable property in India shall come through funds remitted through normal banking channels or from funds in NRE, NRO, FCNR (B) accounts of the person held in India. No payment can be made outside India for this purpose. The funds required for the property purchase by a foreign company having a place of business in India shall come through foreign inward remittance. After the purchase of the property, necessary intimation shall be given to the Reserve Bank of India in this regard. The sale proceeds of such a property can be repatriated only with the permission Of Reserve Bank of India.

With the Stamp Duty on various instruments in Karnataka being on the higher side, people have a tendency to undervalue the market value of the properties for the sake of saving the stamp duty and registration fee. This is particularly in the case of instruments of conveyance, gift, exchange etc.The Deputy Commissioner of Stamps can on his own call for and examine an instrument to check the correctness of the market value of the property and also the duty payable on the market value. This suo moto power can be exercised by the Deputy Commissioner only within two years, from the date of registration of the instrument. Even if, the market value of the property shown in the instrument is equal to or slightly more than the guidance value,the Deputy commissioner has the power to call for and examine the instruments.The Deputy Commissioner normally issue a notice to the parties concerned  and after hearing them and examining the documents produced by the parties, he may pass an order determining the correct market value of the property, if according to him, the market value of the property was not truly set forth in the instrument. The Deputy Commissioner can also order the difference in the stamp duty to be paid by the person. If the person so directed does not pay the differential stamp duty within 90 days from the date of the order, interest is applicable at the rate of 12% per annum.

The registering officer who has the power to register a document has the power to communicate the esteemed market value of a property to the parties. If the parties are not ready to pay the communicated market value, he has the power to keep pending the process of registration and refer the matter to Deputy Commissioner for determination of the market value and the stamp duty.

 Any person aggrieved by the order of the Deputy Commissioner may prefer an appeal before the District judge within 2 months from the date of communication of the Deputy Commissioner’s order provided; he has deposited 50% of the difference in the amount of duties as determined by the Deputy Commissioner.

    All duties required to be paid by a person under the Karnataka stamp act along with the interest thereon may be recovered by the Deputy commissioner by distress and sale of the movable property of the person from whome the same are due or by any other process for the time being in force for the recovery of arrears of land revenues. 

For a residential complex to be eligible for levy of Service tax, it should have the following three essential features:

 a) Should have more than 12 units

 b) Should have a common area

 c) Should have common facility or services like park, community hall, lift etc.

There are several cases where a person can avail exemption from the imposition of Service tax. Service tax is not applicable, in the following cases.

a) If the residential complex is shaving only 12 or less than 12 units.

b) If the residential complex is constructed by an individual for his personal use.

c) Direct purchase of residential unit from a builder without availing the service of a building contractor.

Post construction services pertaining to residential complex are also treated as construction activity for the purpose of Service tax.

 If the builder constructs a residential complex without engaging the services of a contractor (service provider), then he cannot claim the service tax from the apartment purchasers. Similarly, it is the primary duty of the contractor to pay the service tax, and not the builder or the apartment purchaser. If the condition to pay the service tax is not mentioned in the sale agreement, then the apartment purchasers need not pay the service tax to the builder.