Category Archives: Uncategorized

Unauthorized detention of trains and it’s remedies

rails-train-path-straightUnauthorized detention of trains in the contravention of Railway Act, 1989 is not only offence under the aforesaid statute but it is the gross violation of Fundamental Rights of the people of India. It also amounts the infringement of Human Rights of the persons. Certainly, the Railway is a service provider in terms of Consumer Protection Act, 1986. If train is detained by some protesters and root is diverted due to that reason, railway administration may be held responsible for deficiency of service but State Government and Central Government are also responsible for smooth running of trains. Because the Governments are responsible for maintenance of Law and Orders. Such function of the States comes under Sovereign Powers of the State. The Authority under the Consumer Protection Act can not take cognizance in such cases. The High courts under Article 226 and Supreme Court under Article 32 of the constitution of India may issue Writs against the State and other Instrumentality of the State.

Registration of decrees and orders of Civil Courts under Registration Act

A ‘decree’ is a formal expression of an adjudication which as far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in a suit. Both judicial order and decree are public documents.

In this regard, some important provisions of the Registration Act, 1908, herein after called “The Act” must be taken into account. The Act is a central legislation, which is applicable to whole of India except the State of Jammu and Kashmir. Section 17 of the Act specifies the documents for which registration is compulsory. Sub-Section (1)(e) of the Act is replicated below –

“non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested of contingent, of the value of one hundred rupees and upwards, to or in immovable property:

Provided that the State Government may, by order published in the Official Gazette, exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.”

The cumulative effect of the above provision is that every decree, whether it is primary or final, if it relates to any immovable property valued rupees 100 or more, requires compulsory registration. Even a temporary Injunction order passed relating to immovable property passed under Order 39, Rule (1) and (2) requires registration under Registration Act, 1908.

The Act also prescribes the procedure for registration of a decree. Sub-Section (1) of Section 89-A provides that –

Every Court passing –

  • Any decree or order creating, declaring, transferring, limiting or extinguishing any right, title or interest to or in immovable property in favour of any person, or
  • An order for interim attachment or attachment of immovable property or for the release of any immovable property from such property from such attachment,

shall, in accordance with the rules made in this behalf, send a copy of such decree or order together with a memorandum describing the property as far as may be practicable, in the manner required by Section 21, to the Registering Officer within the local limits of whose jurisdiction the whole or any part of immovable property comprised in such decree or order is situate, and such officer shall file the copy of the memorandum in his Book No. 1.

Section 49 of the Act clarifies the effects of non-registration of document required to be registered. The provision lays down that if a document that requires registration under Section 17 of the Act or under any provision of the Transfer of Property Act, 1882, till the time has not been registered, it shall not:

  • Affect any immovable property comprised therein,
  • Confer any power to adopt, or
  • Be received as evidence of any transaction affecting such property or conferring such power.

The proviso to the said rule says that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 or as evidence of any collateral transaction not required to be effected by registered instrument.

Now the important question for consideration is whether an unregistered decree or judicial order which requires compulsory registration under Section 17 of the Act is executable or not. The simple answer is that Section 49 does not come in the way of execution of such decree or order. In this context, it is pertinent to cite two judgements.

  1. In the case of Ramavtar Kedarnath Gupta versus Ramgopal since deceased through Legal Representative, Reported in 2002(3) MP Law Journal 118, the Madhya Pradesh High Court held that an Arbitral award, although not registered as required under Section 17 of the Registration Act, 1908, could not be thrown out as a waste paper even if the same was not made a rule of Court. Likewise, judicial orders and decrees cannot be overlooked if they are not registered under the Registration Act, 1908.
  1. In the recent case of Suraj Lamp and Industries Pvt. Ltd. versus State of Haryana, reported in 2012(4) MP Law Journal (SC) 315, the Supreme Court observed that registration provides safety and security to transactions relating to immovable property, even if the document is lost or destroyed. It gives publicity and public exposure to documents thereby preventing forgeries in regard to transactions and execution of the documents.

The importance of the registration of court decrees and orders could also be understood by the following two illustrations—

  • X has a registered will in his favour. Mr. Y challenged the will in a civil court. The court declares that the will was suspicious and void. Accordingly, the court issued decree in favour of Mr. Y. But the court does not send the decree for registration to the Registrar. If Mr. X sells the property comprised in the will to Mr. Z, without disclosing this fact that the will has been declared void, the sale would amount to fraud. This fraud could have been prevented, if the decree was registered in time under the Act.
  • A purchases a property from Mr. B, which property does not belong to Mr. B. Mr. C challenges the sale deed in a civil court and obtains the decree in his favour and declaration that he is the owner of the property. The copy of decree is not registered as per Section 17 of the Act. If Mr. A, representing himself to be the owner of the property, sells the property to Mr. D, Mr. C will have to file a fresh suit against Mr. D. In the suit, Mr. D may take the defence that he is a bona fide purchaser who has paid the consideration.

To avoid such unpleasant situations, it is strongly recommended that every decree and judicial order, even if passed by way of an interim injunction, that affects the rights in respect of and/or obligations toward an immovable property, is registered under the Registration Act, 1908.

Latest amendments in VAT rules in Madhya Pradesh

On 15 May 2015, the Department of Commercial Tax, Government of Madhya Pradesh, issued Notification No. F-A-3-24-2015-I-IV-(23) while exercising powers conferred under Section 71 of the Madhya Pradesh VAT Act, 2002. By way of this Notification, new provisions have been introduced in the Madhya Pradesh VAT Rules, 2006. Salient features of the amendments are here below:

  1. A businessman intending Registration Certificate under the Madhya Pradesh VAT Act, 2002, is under obligation to furnish the self-attested copy of his Permanent Account Number i.e. PAN, issued under the Income Tax Act, 1961.
  2. Likewise, if the Department of the State or Central Government wants to obtain Registration Certificate under the Madhya Pradesh VAT Act, 2002, the same is also required to file self-attested copy of its Tax Deduction and Collection Account number i.e. TAN.
  3. Further, Dealers who have obtained Registration Certificate at an early point of time, are also required to file self-attested copies of their PAN.

The amendments are anticipated to help the Commercial Tax Department to also cross-check Books of Accounts of old Dealers.

If Departmental Authorities seek to requisite certain information from the Income Tax Authorities, then the details of PAN will be the basic requirement. This is alarming for those who do not show real business transactions in there VAT Returns.

Educational Qualification of Ministers

In India, huge controversy was created by some politicians regarding portfolio allocation to Mrs. Smriti Irani, as the Minister of the Human Resources Department in Prime Minister Mr. Narendra Modi’s cabinet. This controversy raised an important question of public importance, which is:

“Whether, for the holding of the post of Minister in the Central or State Governments, a person requires a basic minimum educational qualification?”

In this regard, the below-mentioned aspects must be taken into considerations:

  1. The Constitution of India never imposes any condition regarding any educational qualification for being a Minister in Central or State Government or even a Member of the cabinet. Article 75 of the Constitution only requires that a Minister shall be appointed by the President on the advice of the Prime Minister. Clause (5) of the Article imposes a condition that a Minister who, for the period of six consecutive months, is not a member of either Houses of the Parliament shall, at the expiration of that period, cease to be Minister.

  1. In the practical sense, any higher, technical or other specific educational qualification is not required for the holding of post of a Minister. It is because Ministers are not required to do any work which requires any technical specialisation. The Ministers have the team of expert bureaucrats and learned Government advocates in their advisory council. The Ministers are not supposed to be highly qualified in the field of law and legislature. They are the representatives of public. Their decisions must be based on good conscience and in larger public interest. For these abilities, a person is not required to be highly educated.

  1. In the case of Mrs. Irani, it is well known that she is a TV artist. She has been associated with the field of performing arts, which includes drama and acting in her case. An artist is not debarred or disqualified from holding a post of Minister. Par contra, an artist is highly connected with the society and socio-economic problems of the society.

Accordingly, the question can be answered that the holding of the post of a Minister in the Central or State Governments, a person does not require any specific educational qualification.

Resultantly, the controversy regarding the qualification of Mrs. Irani holding the post of the Minister of the Human Resource Department in the Government of India, was completely uncalled for and malicious; also liable to be discarded.

Prevention of Corruption Act, 1988: Significant Amendments

The Indian Parliament has passed the Lokpal and Lokayuktas Act, 2013 (“Act”), which received the assent of the President on 1st January, 2014. The Act came into force from 16th January, 2014, vide Central Government Notification No. S.O. 119(E) dated 16th January, 2014. The Act not only creates a new mechanism to receive complaints relating to allegations of corruption against public servants and to enquire follow up actions, but also amends the existing laws relating to corruptions. The Schedule of the Act amends these statutes from immediate effects:

  1. The Commission of Inquiry Act, 1952;
  2. The Delhi Special Police Establishment Act, 1946;
  3. The Prevention of Corruption Act, 1988;
  4. Code of Criminal Procedure, 1973; and
  5. Central Vigilance Commission Act, 2003.

This post is to abreast regarding the amendments in the Prevention of Corruption Act, 1988 (“the 1988’s Act”), which provide for drastic enhancements in the penal provisions thereof. The highlights of the amended provisions are as follows:

(I) In Sections 7, 8, 9 and 12 of the 1988’s Act, the minimum sentence prescribed earlier was “six month”, which after the amendment, has been enhanced to “three years”. In these Sections, the maximum period of punishment was “seven years”, which has been enhanced to “ten years”.

 (II) Section 13 of the 1988’s Act deals with criminal misconduct by a public servant, which includes 5 categories/species therein. The minimum imprisonment prescribed earlier was “one year” which has been enhanced to “four years” by the amendment. Likewise, the period maximum sentence is also amended and fixed to “ten years” which was “seven years” earlier.

(III) Section 14 of the 1988’s Act relates to habitual committing of offense under Sections 8, 9 and 12. Earlier, the minimum punishment prescribed therein was “two years.” Now this minimum punishment is fixed to “five years.” In this section, the maximum punishment “seven years” is enhanced to “ten years”.

(IV) Section 15 deals with punishment for the attempt of offense under section 13(1) (c) and (d). Under this section, no minimum punishment was prescribed before the amendment. In the amended position, the minimum punishment is “two years”. The maximum punishment is now enhanced to “five years” which was “two years” in the original statute.

(V) Lastly, Section 19 of the 1988’s Act has been amended on the point of sanction for prosecution. In this section, after the words “except with the previous sanction”, the words “save as otherwise provided in the Lokpal and Lokayuktas Act, 2014” has been inserted.

 It is pertinent to mention that these amendments came as a consequence of India’s ratification to the United Nations Convention against Corruption on 9th May 2011. The Convention imposes a number of obligations on the member States to ensure measures in the domestic law for criminalization of offenses relating to bribery and put in place an effective mechanism for its enforcement.