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Deemed Conveyance and Certain Practical Difficulties

Deemed Conveyance and Certain Practical Difficulties

By Nazaqat Lal, Advocate & Solicitor, Bombay High Court

nazaqat_lal@hotmail.com | March 20, 2022

INTRODUCTION

Section 11 of the Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management and transfer) Act, 1963 (“the Act”) requires the promoter to convey all his right, title and interest in the land and building in favour of the co-operative society or organization of flat purchasers. There is often a delay on the part of the promoters in executing such conveyance. Such delay prejudices the flat purchasers and their right to fully enjoy and exploit their property. The concept of deemed conveyance seeks to remedy this.

ANALYSIS

If the promoter fails to convey his right, title and interest in the land and building within 4 months from the formation and registration of the society or company, or within such time as maybe agreed upon by and between the promoter and flat purchasers, the society can make an application to the competent authority for issuing a certificate/an order stating that such society is entitled to have a unilateral deemed conveyance. Such application is required to be accompanied by true copies of the registered agreements for sale and all other relevant documents, including the occupation certificate, if any.

On receipt of such application, the competent authority shall make enquiry, verify the authenticity of the documents submitted and give the promoter a reasonable opportunity to be heard. If satisfied, the competent authority shall issue a certificate to the Sub-Registrar stating that it is a fit case for enforcing unilateral execution of a conveyance deed conveying the right, title and interest of the promoter in the land and building in favour of the society.

On receipt of such certificate and unilateral instrument of conveyance, the Sub-Registrar shall give the promoter an opportunity to show cause why such unilateral instrument of conveyance should not be registered as ‘deemed conveyance’. If satisfied, the Sub-Registrar shall register the instrument as ‘deemed conveyance’.

As the name suggests, deemed conveyance is a unilateral execution of a conveyance deed whereby the promoter is deemed to have conveyed his right, title and interest in the land and building in favour of the society of flat purchasers, followed by the unilateral registration thereof under the Registration Act, 1908. The provision for deemed conveyance was inserted in the interest of flat purchasers. However, there are certain practical difficulties that arise that prevent flat purchasers from taking benefit of this provision or prove to be a hindrance.

CERTAIN PRACTICAL DIFFICULTIES THAT ARISE

​One issue that usually arises is that of stamp duty. If all the flat purchase agreements of the society members (including agreements for shops, garages and parking) are duly stamped and registered and the full FSI potential of the land on which the society building stands has been utilised, the instrument of deemed conveyance shall be treated as a supplementary document to such agreements and the stamp duty and registration fees payable on the instrument of deemed conveyance will be nominal.

However, if any one or more society member’s flat purchase agreements or agreements for shops, garages and/or parking are not duly stamped and registered, stamp duty liability on such agreements will have to be cleared. Further, if the FSI potential of the land on which the society building stands has not been fully utilized, stamp duty will be payable on the present market value of such unutilized FSI, making the stamp duty payable on the instrument of deemed conveyance, substantial. Notification dated 12th April, 2012 sets out the detailed procedure. Given the property prices in Mumbai, this stamp duty liability may run into several lakhs or crores.

Another issue that arises in some cases is that the promoter has the right to develop only a portion of the land which is part of a larger undivided plot. There are also cases in which phase wise redevelopment is done of multiple buildings standing on the same sub-divided plot. When an order of deemed conveyance is passed in such cases, disputes often arise about the area of land conveyed under such order/certificate of deemed conveyance.

Computing or quantifying the entitlement of a society applying for deemed conveyance may not always be easy as the society maybe entitled to the land on which the society building stands, as well as proportionate right in common areas, internal access roads, gardens, etc. together with other societies.

Lastly, a society being a successor in title of the promoter cannot claim any rights higher than that of the promoter. Defects in title of the promoter cannot be remedied by execution of an instrument of deemed conveyance nor are the rights of original owners of the land affected or influenced by an order of deemed conveyance or the registration of the certificate thereafter. Original owners can raise disputes of title, computation and quantification of area, FSI, etc. by filing a civil suit. The civil suit will be decided on its own merits unaffected by any order of deemed conveyance that may have been passed.

CONCLUSION

When a promoter fails to fulfil his obligations of conveying his right, title and interest in the land and building, the competent authority steps in to fulfil such obligations to avoid hardship to the flat purchasers. However, to take the benefit of the provision of deemed conveyance, flat purchasers and societies must have all their documents in place and be willing to comply with all applicable provisions of law. Flat purchasers and societies must also have sufficient funds available with them as the stamp duty payable on an instrument of deemed conveyance may run into several lakhs or crores in certain cases. Lastly, a society being a successor in title of the promoter cannot claim any rights higher than that of the promoter.

Remedies Available to Original Owner of Land After Order of Deemed Conveyance under MOFA

Remedies Available to Original Owner of Land After Order of Deemed Conveyance under MOFA

By Nazaqat Lal, Advocate & Solicitor, Bombay High Court

nazaqat_lal@hotmail.com | Dec 24, 2021

[*The relevant sections and statutes have been mentioned in brackets]

INTRODUCTION

After taking possession of flats and forming co-operative housing societies, flat owners often have to wait for years till the developer conveys his right, title and interest in the land and building to the co-operative housing society. This is a hindrance to co-operative housing societies as the transfer of title in the land and building in their favour remains in abeyance till such time. More often than not, a situation arises when the society owns the building consisting of flats and apartments but not the land underneath the building. Such situation presents several difficulties in utilization and exploitation of the full potential of the property. The concept of deemed conveyance under Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management and transfer) Act, 1963 (“the Act”) (also popularly known as “MOFA”) seeks to remedy this.

ANALYSIS

Section 11 of the Act read with Rule 9 of the rules framed thereunder casts an obligation on the promoter (as defined therein) to convey his right, title and interest in the land and building to the co-operative housing society or company formed by the flat takers or apartment owners. If the promoter fails to do this within 4 months from the formation and registration of the society or company, or within such time as maybe agreed upon between the promoter and flat purchasers, the society can make an application to the competent authority for deemed conveyance. As the name suggests, deemed conveyance is a unilateral execution of a conveyance deed whereby the promoter is deemed to have conveyed his right, title and interest in the land and building in favour of the society of flat purchasers, followed by the unilateral registration thereof under the Registration Act, 1908.

In some cases, the promoter has the right to develop only a portion of the land which is part of a larger undivided plot. There are also cases in which phase wise redevelopment is done of multiple buildings standing on the same sub-divided plot. When an order of deemed conveyance is passed in such cases, disputes often arise about the area of land conveyed under such deemed conveyance. Computing or quantifying the entitlement of a society applying for deemed conveyance may not always be easy as the society maybe entitled to the land on which the society building stands, as well as proportionate right in common areas, internal access roads, gardens, etc. together with other societies. The question that therefore, arises for consideration is what would be the appropriate forum and nature of proceedings to be initiated for adjudication of such disputes involving questions of title, quantification of area entitlement and FSI, etc. arising from an order of deemed conveyance. Would the remedy be by way of filing an appeal, civil suit or writ petition?

To answer this, it is important to understand the jurisdiction being exercised by the competent authority under Section 11 of the Act and what rights, if any, are being determined by an order of deemed conveyance.

In Mazda Construction Company & Ors. v. Sultanabad Darshan CHS Ltd.[1], the Bombay High Court explained the scope of scope of powers exercised by the competent authority while issuing an order of deemed conveyance as under:

“20. To my mind, reading of Sections 10 and 11 together with Section 5A would make it amply clear that what is to be performed by the Competent Authority is a duty and obligation which the promoter is to perform in law. That is to convey the title and execute the documents according to the agreement. If that is the duty which is to be performed by the promoter, but which he fails to perform, then, the Competent Authority steps in to fulfill it. That is a duty towards the flat purchasers and which duty cannot be avoided except at the cost and pains of legal proceedings including a criminal prosecution. In these circumstances and when sections 10 and 11 are read together and harmoniously with the preceding sections including those which contain the particulars of the agreement, then, it becomes absolutely clear that what has to be conveyed even by a deemed conveyance, which is an unilateral act and which enables the flat purchasers to acquire the Promoter’s right, title and interest in the land and the building. Therefore, it cannot be said that an unilateral deemed conveyance conveys something more than what belongs to the Promoter. Section 11(1) provides for conveyance of Promoter’s right, title and interest in the land and building as is clear from the words “his right, title and interest….” appearing therein. I am not in agreement with Mr. Samdani that there are no guidelines guiding and enabling the Competent Authority to grant a deemed conveyance and therefore, the powers are likely to be abused or exercised arbitrarily in every such case. There are inbuilt checks and safeguards inasmuch as what is to be issued is a certificate entitling a unilateral deemed conveyance. It is not a document which stands alone or is a distinct transaction. It is a grant or conveyance in terms of what the agreement between parties stipulates and provides for being conveyed to the flat purchasers. Therefore, the Applicant is permitted to apply to the Competent Authority u/s 11(3) and such application is to be accompanied by true copies of the registered agreements for sale executed by the Promoter with each individual member/ flat purchaser and other relevant documents. It is to further that and to insist on the promoters fulfilling their obligations within the prescribed period, but noticing that their failure has resulted in hardship to flat purchasers, that the Legislature has stepped in. To my mind, this is not a power which can be exercised by the Competent Authority in ignorance of or by brushing aside the earlier provisions and contents of the agreement with the flat purchasers. Equally, the Competent Authority has to take into consideration the contents of other relevant documents.” (emphasis supplied)

In the case of M/s Mahanagar Partnership Firm & Ors. v. District Deputy Registrar of Co-operative Societies (Pune City), Pune & Ors. [2], the Bombay High Court held as follows.

“9. In the case of Mazda Construction Company Vs. Sultanbad Darshan CHS Ltd, Writ Petition No.3912 of 2012, it is held that issue of title in respect of the property cannot be gone into by the Competent Authority under the provisions of the MOFA and the same can be decided only by the Civil Court. In paragraph 17 of Angelina Randolph Pereira’s case (supra), it is held that contentions regarding title in respect of property in question or adjudication in respect of the property in question or adjudication in respect of entitlement of the exact quantification of FSI on the plots in question cannot be gone into the proceedings under section 11 of the MOFA. The Competent Authority cannot decide validity of the agreements between the parties. The order granting Deemed Conveyance does not conclude issue of right, title, interest in the immovable property. The petitioners can still file substantive suit of title claiming the appropriate reliefs. Merely because order of Deemed Conveyance is passed and certificate of title is issued by the Competent Authority under section 11, the petitioners are not precluded from seeking adjudication of their right in respect of the suit property by filing suit. All such contentions can be gone into in a properly instituted suit.

10. In view of the consistent view taken by this Court in the aforesaid decisions, I do not find that any case is made out for invocation of powers under Article 227 of the Constitution of India. It is made clear that if any suit is filed by the petitioners for adjudication of title in respect of the suit property, the same can be decided without being influenced by the order of Deemed Conveyance passed by the Competent Authority and certificate of title issued by the Competent Authority in favour of the second respondent. Subject to this clarification, Petition fails and the same is dismissed with no order as to costs.” (emphasis supplied)

A similar view was also taken by the Hon’ble High Court at Bombay in M/s. Chintamani Builders vs. State of Maharashtra & Ors. [3], Angeline Randolph Pereira vs. Suyog Industrial Estate Premises Co-operative Society Limited [4] and Bhalchandra Gaurishankar Pandya & Ors vs. State of Maharashtra & Ors. [5]

CONCLUSION

When a promoter fails to fulfil his obligations of conveying his right, title and interest in the land and building, the competent authority steps in to fulfil such obligations to avoid hardship to the flat purchasers. However, a society being a successor in title of the promoter cannot claim any rights higher than that of the promoter. Moreover, the flat purchase agreements are an internal arrangement or agreement between the promoter and flat purchasers to which the original owners may or not maybe party. In case the original owners are not party to such agreement, their entitlement will not be affected or influenced by the order of deemed conveyance or the registration of the certificate thereafter. Original owners can raise disputes of title, computation and quantification of area, FSI, etc. by filing a substantive civil suit by pointing out relevant documents as also by leading oral evidence and not by way of invoking the extra-ordinary writ jurisdiction. An order granting deemed conveyance will not conclude such issues. The civil suit will be decided on its own merits unaffected by any order of deemed conveyance that may have been passed.

[1] Order dated 31.08.2012 in Writ Petition 3912 of 2012 (Bombay High Court)

[2] Order dated 6.12.2018 in Writ Petition (St.) No. 31966 of 2018 (Bombay High Court)

[3] Order dated 11th August, 2016 in WP No. 2839 of 2013

[4] 2018 (6) ALL MR 729

[5] Order dated 6th August, 2021 in WP No. 2948 of 2015

CAN TRANSGENDER PERSONS GET MATERNITY BENEFITS?

CAN TRANSGENDER PERSONS GET MATERNITY BENEFITS?

By Raagini Raghu

16jgls-rraghu@jgu.edu.in | June 25, 2021

Can the Maternity Benefit Act and Transgender Persons (Protection of Rights) Act be interpreted harmoniously to provide maternity benefit to transgender pers?

The Maternity Benefit Act, 1961 ensures that women in the workforce are given a paid maternity leave for a certain period before and after child birth. This is an important piece of legislation which safeguards and accounts for the primary care giving role women have in society in the dual life they lead. Women are involved in reproductive labour in the private sphere and productive labour in the public sphere. However, it is often argued that the role a mother plays in the life of a child is not limited a female woman. It can be fulfilled by any person irrespective of their sexual orientation. This would require the definition of woman in the Maternity Benefit Act to be interpreted broadly to include individuals of different sexual orientations. Transgender people have the right to have a child as well and the Maternity Benefit Act is silent on whether the legislation would apply to all genders across the spectrum. The newly introduced Transgender Persons (Protection of Rights) Act, 2019 prohibits people and establishments from discriminating against a transgender person and imposes an obligation on employers and establishments to not discriminate against transgenders in any matter relating to employment.

The ILO Constitution is enshrined with principles of equality and non discrimination. The most relevant international labour law standard is the ILO Discrimination (Employment and Occupation) Convention, 1958 (No. 111). India ratified this convention on 3 June, 1960. The ILO Convention 111 defines “discrimination” as “any distinction, exclusion or preference made on the basis of sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation” and “other distinctions, exclusions or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.” The ILO Convention 111 not only prohibits discrimination but also requires national policy to undertake a “proactive and positive approach” towards equality of opportunity and treatment in employment and occupation.

International human rights standards have condemned discrimination based on sexual orientation. The discrimination of a person on the grounds of sexual orientation was recognised as a human right violation in Toonen v Australia where ‘sex’ was interpreted to include “sexual orientation”. In 2011 the UN Human Rights Council expressed their “grave concern at acts of violence and discrimination against individuals because of their sexual orientation and gender identity”. The Yogyakarta Principles are internationally recognised human rights standards related to sexual orientation and gender identity. The principles seek to ensure equality for all irrespective of sexual orientation and gender identity and have been followed by Indian courts. This puts an obligation on individual states to protect individuals from discrimination based on sexual orientation.

The Maternity Benefit Act safeguards the interests of women who enter the public sphere of organised labour. There are two kinds of labour, productive and reproductive labour. The latter is said to be limited to women in their households while the former is said to be more fruitful and ‘transformative’. The Maternity Benefit Act dispels this myth by allowing women to enter the workforce and ensure that they fulfil their primary care giving role while engaging in gainful employment. It allows women to undertake a dual role. This special protection given to women must not be limited to only women. Instead, the Maternity Benefit Act must be gender neutral. The legislation is inefficient if it identifies any one sex who can be involved in care giving labour. In his judgement in Mini TK v Senior Divisional Manager, LIC, Kozhikode Justice A Muhamed Mustaque has elucidated the crucial role of a mother in the upbringing of her child especially in the child’s formative years. He likens a woman to a goddess in a family which is the backbone of society. At the same time the judgment highlights that “motherhood has become a contentious issue in the modern society” because economic and competing market interests override “the notions of culture and social justice like gender equity.” Mini TK had taken extra leave to take care of her autistic child, the court reversed her employers decision to dismiss her from service for taking maternity leave above the maximum period available due to her “compelling circumstance”. Her compelling circumstance was her duty towards her autistic child who needed extra care. The court stated that an employer had an obligation to “protect her personhood as a mother”. It was held that, “motherhood is not an excuse in employment but a right which demands protection in the given circumstances.” The court looked at the unique situation of women from the perspective of fundamental rights and abided by international human rights commitments. International conventions like the UDHR, ICESCR, ICCPR, CEDAW are to be followed when States do not explicitly denounce their obligations to use as a guidance to interpret fundamental rights. The court noted constitutional principles must be interpreted in purview of the dynamic nature of society. Women were no longer confined to the private sphere but had the right to enter the public sphere for gainful employment while fulfilling their duty as a mother towards their child. Therefore, women were not be discriminated against men in matters of employment and their fundamental right to motherhood was to be protected and upheld.

The courts have interpreted the Maternity Benefit Act liberally to provide maternity benefit to a commissioning mother in a surrogacy arrangement. In Rama Pandey v Union of India the court used the “updating principle” to account for new ways to procreate with advances in science. The other principle used was the “dynamic process of enactment”. Justice Rajiv Shakdher has cited Bennion on Statutory Interpretation, 5th Edition and stated that while it is the duty of judges to give effect to the will of the Parliament, they are not to interpret the statute mechanically, instead judges refine and polish the legislation. The updating principle was used to conclude that even a commissioning mother is entitled to maternity benefit as she is the principle care giver of the child. The commissioning mother was not denied maternity benefit because she did not carry the child. At the same time, except for government civil servants, there is no labour law that provides paternity leave. Government civil servants are given paternity leave for fifteen days before the expected date of delivery or upto six months after the birth of the child. During paternity leave the employee is paid leave salary at the rate immediately preceding the leave period. Although the judgment in Pooja Jignesh Doshi v State of Maharashtra stated that the commissioning father is entitled to paternity leave in a surrogacy arrangement it was not elucidated further. Even while using an “updating principle” the Indian courts have limited motherhood to a female and a family is limited to a unit with heterosexual parents.

In KS Puttaswamy v Union of India the Supreme Court held that procreation and sexual orientation are inherent to the dignity of an individual which requires constitutional protection. The Indian Constitution guarantees equality and traditionally courts have held that women should not be discriminated against men in matters of employment. However, the gender equity upheld by courts have so far been limited to the gender binary of ‘men’ and ‘women’. Since national policy must be in tune with international convention such as the ILO Convention 111 and also in line with international human rights standards laid down by the UN OHRC and Yogyakarta Principles, Indian legislation and judgements must reflect inclusivity of transgenders. Transgenders have the right to choose a gender of their choice. They also have the right to motherhood. The Maternity Benefit Act must be interpreted broadly so as to extend maternity benefits to transgenders who also have the right to motherhood and gainful employment.

The Transgender Persons (Protection of Rights) Act, 2019 aims to protect the rights of transgender persons and ensure their welfare. By way of Section 9, it has introduced a provision for non discrimination in any matter relating to employment by an establishment. A transgender man can give birth naturally. Some transition in order to give birth. A transgender individual can also adopt or have a baby via a surrogate. In line with the decision in KS Puttaswamy transgender individuals have the right to a family, marriage, procreation and sexual orientation. It is related to the inherent dignity of an individual which the Indian Constitution protects under Article 21. At the outset, the Maternity Benefit Act provides paid maternity leave and aims to achieve social justice by accounting for reproductive labour. Courts can use dynamic interpretation to “update the construction of an enactment” to account for changes that have occurred since the original enactment of the statute. Social conditions have previously persuaded courts to apply the updating principle and while doing so the original principles which were envisaged by the wording are followed. If Motherhood is possible with a surrogacy arrangement and adoptive parents are akin to a commissioning parents, there is no reason why it should be denied to transgenders. Therefore, the Act must protect the interest of transgender individuals as well. In light of the new Transgender Persons (Protection of Rights) Act which explicitly prohibits discrimination in matters of employment, maternity benefit must apply to transgender individuals as well.

Section 9 of the Transgender Persons (Protection of Rights) Act is not exhaustive, it prohibits discrimination of transgenders in ‘any matter relating to employment’. In Municipal Corporation of Delhi v Female Workers (Muster Role) maternity benefit was extended to all employees including daily wage employees whose names were not on the muster roll as “social justice demands the removal of socio economic inequalities”. Since maternity benefit would improve the working conditions of the workers it is a matter relating to employment. The sexual orientation of an individual is not pertinent to whether he or she is given maternity benefits. If a transgender individual and a woman seek maternity benefit from their employer and only the woman is given maternity benefit there could be only one reason for the difference in outcome. The employer has discriminated against the transgender employee on the basis of sex. This is because if an employer discriminates an employee for being transgender then that individual is being discriminated for being a man or a woman which is a discrimination based on sex. In Bostock v Clayton County, Georgia sexual orientation discrimination which led to the firing of a transgender employee for being transgender was considered to be an unlawful discrimination. The Indian Constitution and ILO Constitution guarantees equality before the law and also explicitly states that individuals cannot be discriminated on the basis of sex. Therefore, denial of maternity benefit to a transgender individual based on their sexual orientation is an unlawful discrimination.

It is important to support transgender individuals so that they can discharge their duties to their fullest potential in their workplace. They would benefit from an inclusion of a provision in the Maternity Benefit Act for giving maternity benefit to transgenders since they belong to a vulnerable class of society and require special protection. In National Legal Services Authority v Union of India the Supreme Court emphasised the need for legal protection of transgender persons in education, employment, healthcare, state activity such that they enjoy the same benefits as any other citizen of this country. Often the payment of maternity benefit causes a strain on the employee which is why the ILO has also suggested a ‘model of social insurance’ to guarantee maternity benefit to employees in a workplace. The amount paid as social insurance is the amount which would have been paid if the leave was not taken. Social insurance is usually funded by the employer or workers or both and with government subsidy. This model has been implemented in the Employees State Insurance Act, 1948, however, it is limited to certain establishments. If this scheme is made more prevalent maternity benefits would become more accessible to individuals despite their sexual orientation as opposed to the current scenario where the employer pays the entire amount. It will also prevent employers from discriminating against individuals based on their sexual orientation at the time of hiring by not employing those who would seek maternity benefits.

In conclusion, the right to motherhood is not limited to a female woman for which the Maternity Benefit Act must be interpreted from the purview of the Constitution of India, ILO Convention 111 and international human rights standards. Transgenders should not be discriminated against based on their sexual orientation and deprived of maternity benefits. The dynamic interpretation of the Maternity Benefit Act when read along with the Transgender Persons (Protection of Rights) Act would prevent discrimination against transgenders in a workplace and provide them maternity benefits. Transgenders have a right to improved working conditions which will help them reach their fullest potential at work. This includes maternity benefit. Dynamic interpretation will help include within the purview of the Maternity Benefit Act a transgender individuals ability to give birth naturally or commission a surrogate or adopt and even expand the definition of family unit beyond heterosexual parents and children. Law needs to evolve with an evolving society and the introduction of the Transgender Persons (Protection of Rights) Act warrants the inclusion of right of transgenders to motherhood and maternity benefit under the Maternity Benefit Act.

WHY IS CANADA IMMIGRANTS’ PARADISE

WHY IS CANADA IMMIGRANTS’ PARADISE

 

By Manju Hirani,
Hirani Canadian Immigration and Consultancy Solutions Inc,
Canada

hiraniimmigration@hotmail.com, Ph:001(778) 8962567| June 08, 2021

The US News & World Report in its “2021 Best Countries Report” recently announced Canada as the best country in the world.

Canada has a very friendly attitude towards immigrants and it is one of the most popular choices for immigrants from across the world.

Canada is a safe country to live in and raise a family. Canada offers the best combination of urban life with a laid-back rural lifestyle. It is a country where you can get both professional growth as well as work – life balance. Canada offers better quality of life with more earning and more savings.

The underlying principle of Canadian Immigration Law is the belief that skilled workers are the major contributory factor for taking Canada to the path of prosperity. Foreigners with work permits and international students can easily apply for permanent residency after meeting the minimum eligibility requirements.

Skilled workers who can contribute to the Canadian economy are welcomed with open arms. The following are the requirements for immigration of skilled workers:

• Good health
• No criminal history
• Bachelor’s degree in any stream
• Minimum one years’ continuous work experience (more experience will get you extra points)
• Ability to speak, read and write English or French or both languages (language test is mandatory)
• A score of 67 points in Canada’s point based immigration selection system
• One can apply for Permanent Residence (PR) in Canada from India( with skilled work experience of minimum one year)
• If married, spouse and children under 21 years of age can also migrate along with the principal applicant
• Spouse gets right to work
• After three years, can apply for Canadian citizenship

Canada offers plenty of opportunities for those looking to migrate to the country. One can work in Canada as a Skilled Worker under the Temporary Foreign Worker Program and apply for permanent residency through the Express Entry Programs: Federal Skilled Worker, Federal Skilled Trades or Canadian Experience Class.

One can study in Canada and apply for permanent residency through the Canadian Experience Class after meeting the minimum eligibility requirements.

Another way is to immigrate through the Provincial Nominee Programs. Our provinces offer several paths for qualified immigrants looking to make Canada their home.

When you become a permanent resident of Canada, you are entitled to the same rights and privileges as a Canadian citizen except for the right to vote and the right to apply for a Canadian passport , are entitled to equal treatment and equal protection.

There are excellent schemes such as Old Age Security, Guaranteed Income Supplement, and Canada Pension Plan – all three of these programs are designed to provide financial support to workers after they reach retirement age – currently age 65. To be eligible, you have to meet specific residency requirements and to have contributed to the system by paying taxes in Canada.

Medical expenses are covered through the Canadian health care program on payment of nominal amount and in certain cases no amount is payable. These expenses include visits to emergency room, immunizations, yearly exams, etc.

All children under 18 are entitled to a free education in the Canadian Public School System, which provides world class education.

In Canada, working parents are given time off when a new baby is born or adopted. Parents can opt to take leave up to 12 months and split the leave between parents.

Canada is the perfect destination for you and your family to move to. The government of Canada believes that emigration to Canada is a major driving factor of economic growth; it welcomes the diverse traditions, rituals, and customs that immigrants bring into the cultural fabric of this evolving nation.

Law on Family Arrangements

Law on Family Arrangements

 

By Nazaqat Lal, Advocate & Solicitor, Bombay High Court

nazaqat_lal@hotmail.com | June 08, 2021

Family arrangements have long been recognised by the law and are increasingly being used in estate planning. Recently, an amendment to the Maharashtra Co-operative Societies Act, 1960 [1] included a family arrangement executed by persons entitled to inherit the property of a deceased member, as one of the documents on the basis of which, a society would transfer the right, title and interest of the deceased member in such flat.

The first question that falls for consideration is what is meant by ‘family’ for the purpose of family arrangements and consequently, who can be party to a family arrangement? In Kale & Ors. vs. Deputy Director of Consolidation & Ors. [2], a landmark judgment on family arrangements, these questions were answered by the Supreme Court of India as under.

“9. …That is why the term “family” has to be understood in a wider sense so as to include within it fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successionis so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country.

….

10. (5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same;”

The next question is the manner in which a family arrangement is to be made. A family arrangement may be made orally or in writing [3]. If made orally, the issue of registration does not arise. However, if made in writing, does it need to be registered? In Kale (supra), the Supreme Court drew a distinction between an instrument effecting, creating, or making a family arrangement and a family arrangement that was executed afterwards as a mere record of a past transaction. It held that in case of the latter, registration would not be required as such memorandum itself does not create or extinguish any rights in immovable property and therefore, would not fall within the scope of Section 17(2) of the Registration Act, 1908.

The dictum in Kale (supra) was followed by the Supreme Court in its recent judgment of Ravinder Kaur Grewal & Ors. Versus Manjit Kaur & Ors. [4] Some brief and relevant facts are as follows. A family arrangement was orally entered into in 1970. This was acted upon by the parties. Thereafter, disputes arose and therefore, it was thought necessary to reduce the terms already settled between the parties, into writing in 1988. This writing was not registered. The core issue before the Supreme Court was whether the document Exhibit P-6 was required to be registered as interest in immovable property worth more than Rs. 100/- was transferred in favour of the plaintiff. The Supreme Court held that such document was merely a memorandum of settlement, and it did not require registration.

While dealing with family arrangements, courts have leaned in favour of upholding a family arrangement and taken a liberal approach towards its execution. This is emphasized in the following paragraphs in Kale (supra).

“9. …Where the courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits…

38. …Assuming, however, that the said document was compulsorily registrable the courts have generally held that a family arrangement being binding on the parties to it would operate as an estoppel by preventing the parties after having taken advantage under the arrangement to resile from the same or try to revoke it…”

From the aforesaid, it becomes clear that when by virtue of a family arrangement, members of a family descending from a common ancestor or a near relation seek to bury their differences or avoid future disputes to maintain harmony in the family, such an arrangement ought to be governed by a special equity peculiar to them and would be enforced if honestly made.

[1] Section 154B-13 inserted by the Maharashtra Co-operative Societies (Amendment) Ordinance, 2019

[2] (1976) 3 SCC 119

[3] Ibid.[(Para 10(3) read with Para 10(4)]

[4] Judgment dated 31st July, 2020 in Civil Appeal No. 7764 of 2014

AVAILABILITY OF AN ALTERNATE REMEDY DOES NOT PROHIBIT THE COURT FROM ENTERTAINING A WRIT PETITION IN AN APPROPRIATE CASE

AVAILABILITY OF AN ALTERNATE REMEDY DOES NOT PROHIBIT THE COURT FROM ENTERTAINING A WRIT PETITION IN AN APPROPRIATE CASE

 

By Esha Malik, Advocate

eshamalik322@gmail.com | May 24, 2021

In a recent judgement in Uttar Pradesh Power Transmission Corporation Limited v/s. CG Power and Industrial Solutions Limited, the Apex Court held that availability of an alternate remedy does not bar the jurisdiction of a High Court in entertaining a Writ Petition under Article 226 of the Constitution of India.

The Apex Court, in a Special Leave Petition filed under Article 136 of the Constitution of India by Uttar Pradesh Power Transmission Corporation Limited (“UPPTCL”), was dealing with the final order and judgement (“Impugned Order”) passed by the High Court at Allahabad (Lucknow Bench) allowing the Writ Petition filed by CG Power and Industrial Solutions Limited, inter alia, seeking directions to set aside two letter dated 2nd September, 2016 and 29th December, 2018 respectively issued by Executive Engineer, Unnao UPPTCL arising under the Framework Agreement executed between UPPTCL and M/s. CG Power and Industrial Solutions Limited for construction of 765/400 KV substations at Unnao, Uttar Pradesh. Both these two letter above sought directions to CG Power and Industrial Solutions Limited to remit labour Cess amounting to Rs. 2,60,68,814/-, computed at 1% interest of the Contract value under sections 3 (1) and 3 (2) of the Building and Other Construction Workers Welfare Cess Act, 1996 (“Cess Act”) r/w Rule 3 and Rule 4 (1), (2), (3) and (4) of the Building and Other Construction Workers Welfare Cess Rules, 1998 (“Cess Rules”).

The Hon’ble High Court vide the Impugned Order set aside the above two letters sent by UPPTCL to M/s. CG Power and Industrial Solutions Limited demanding outstanding labour Cess amounting to Rs. 2,60,68,814/- computed at the rate of 1% of the contract value as being unsustainable in law and further held that Cess could only be recovered in the manner stipulated in the Cess Act and the Rules made thereunder.

It is pertinent to note that although under the General Conditions of Contract, there contained an Arbitration Clause, the Apex Court held that it is well settled now by several judgements passed by this Court that existence of an Arbitration Clause does not debar the Court from entertaining a Writ Petition. It further held that availability of an alternate remedy does not prohibit the Court from entertaining a Writ Petition in an appropriate case particularly (i) when Writ Petition seeks enforcement of fundamental rights, (ii) where there is failure of principles of natural justice or (iii) where the impugned orders or proceedings are wholly without jurisdiction and (iv) the vires of the Act is under challenge.

It further made reference to the judgement of Harbansal Sahnia and Ors., v/s. Indian Oil Corporation Limited reported in (2003) 2 SCC 107, wherein this Court allowed the Appeal from an Order of High Court dismissing the Writ Petition and setting aside the impugned Order of High Court and Indian Oil Corporation terminating the dealership of the Harbansal Sahnia, notwithstanding the fact that the dealership Agreement contained an Arbitration Clause.

In the end, the Apex Court confirmed the Impugned Order passed by the Hon’ble Court at Allahabad, Lucknow bench and dismissed the SLP holding that UPPTCL acted in excess of its power by its acts impugned, when there was admittedly no assessment or levy of cess under the Cess Act and also further adding that “it is now well settled by a plethora of decisions of this Court that relief under Article 226 of the Constitution of India may be granted in a case arising out of contract. However, writ jurisdiction under Article 226, being discretionary, the High Courts usually refrain from entertaining a writ petition which involves adjudication of disputed questions of fact which may require analysis of evidence of witnesses. Monetary relief can also be granted in a writ petition”.

CAPITAL GAINS EXEMPTIONS

CAPITAL GAINS EXEMPTIONS

 

By Milisha K. Shah, B.Com, Final CA Student,

milisha82@gmail.com | May 20, 2021

Exemptions under Income from Capital Gains under the Income Tax Act, 1961.

The following exemptions available under the head of income “Income from Capital Gains” can be used for the purpose of Tax Planning, well within the scope of the Act and without any misuse of the provisions of the Income Tax Act, 1961: –

1. Sec. 54: Exemption for Residential House Property.

(a) Eligible Assessee: Individual/Hindu Undivided Family (HUF) only.

(b) Asset to be transferred: Residential House Property (should be a Long Term Capital Gain (LTCG).

(c) Asset to be acquired: One Residential House Property in India. If the LTCG is up to Rs. 2 Crore, two Residential House Properties can be acquired.

(d) Time Limit: The Residential House Property must be purchased within 1 year before or within 2 years after the date of transfer, or constructed within 3 years after the date of transfer.

(e) Capital Gain Account Scheme (CGAS)/Deposit Scheme: The Assessee (Individual/HUF) should either acquire house property or deposit desired amount in CGAS up to the due date of filing the return. The amount deposited should be utilized for the purpose of residential House Property only. If the deposited amount is misused, then the exemption claimed earlier shall be withdrawn.

(f) Amount of Exemption: Long Term Capital Gain; or Cost of new assets/Deposit Amount, whichever is lower.

(g) Lock-in-period: The new residential house property should not be transferred within 3 years from the date of its acquisition. If it is transferred, the exemption claimed earlier shall be withdrawn and it has to be reduced from the Cost of Acquisition (COA) of the new house property, i.e. the reduced cost system is followed u/s. 54 of the Income Tax Act, 1961.

2. Sec. 54B: Exemption for Urban Agricultural Land:

(a) Eligible Assessee: Individual/HUF only.

(b) Asset to be transferred: Urban Agricultural Land which was used by the Assessee or his/her parents for a period of 2 years immediately before the date of transfer took place (can be Short Term Capital Gain (STCG) or LTCG).

(c) Asset to be acquired: Urban/Rural Agricultural Land.

(d) Time Limit: The agricultural land should be purchased within 2 years after the date of transfer.

(e) Capital Gain Account Scheme (CGAS)/Deposit Scheme: The Assessee (Individual/HUF) should either acquire agricultural land or deposit desired amount in CGAS upto the due date of return filing. The amount deposited should be utilized for the purpose of an urban/rural agricultural land only. If the deposited amount is misutilized, the exemption claimed earlier shall be withdrawn.

(f) Lock-in-period: The urban/rural agricultural land should not be transferred within 3 years from the date of its acquisition. If it is transferred, the exemption claimed earlier shall be withdrawn and it has to be reduced from the Cost of Acquisition (COA) of the new house property, i.e. the reduced cost system is followed u/s. 54 of the Income Tax Act, 1961.

(g) Amount of Exemption: Lower of the following: LTCG/STCG; or Cost of new assets/Deposit Amount

3. Sec. 54D: Exemption for Industrial Land and Building:

(a) Eligible Assessee: Any person under the Income Tax Act.

(b) Asset to be transferred: Compulsory acquisition of land or building which was used by the Assessee in the business of industrial undertaking for a period of 2 years immediately prior to the date of transfer (STCG/LTCG).

(c) Asset to be acquired: New land or building for industrial undertaking.

(d) Time Limit: New industrial land or building should be acquired/constructed within 3 years from the receipt of compensation due to the compulsory acquisition.

(e) Capital Gain Account Scheme (CGAS)/Deposit Scheme: The Assessee (Individual/HUF) should either acquire new asset or deposit desired amount in CGAS upto the due date of return filing. The amount deposited should be utilized for the purpose of industrial land or building only. If the deposited amount is misutilized, the exemption claimed earlier shall be withdrawn.

(f) Amount of Exemption: Lower of the following: STCG/LTCG; or Cost of New Assets/Deposit Amount

(g) Lock-in-period: The industrial land or building should not be transferred within 3 years from the date of its acquisition. If it is transferred, the exemption claimed earlier shall be withdrawn and it has to be reduced from the Cost of Acquisition (COA) of the new house property, i.e. the reduced cost system is followed u/s. 54 of the Income Tax Act, 1961.

4. Sec. 54EC: Exemption for immovable property:

(a) Eligible Assessee: Any person.

(b) Asset to be transferred: Land or Building or both (LTCG only).

(c) Asset to be acquired: Bonds redeemable after 5 years, issued by:

(i) National Highway Authority of India (NHAI); or
(ii) Rural Electrification Corporation Limited (RECL); or
(iii) Power Finance Corporation Limited (PFCL); or
(iv) Indian Railway Finance Corporation Limited (IRFCL).

(d) Time Limit: The above mentioned bonds should be acquired within 6 months from the date of transfer.

(e) CGAS: Not Applicable

(f) Amount of Exemption: Lower of the following: LTCG; or Cost of New Assets
Maximum exemption limit is Rs.50,00,000 for bonds acquired within prescribed time limit.

(g) Lock-in-period: New Assets should not be transferred/converted into money within 5 years from the date of its acquisition. If it is transferred/converted into money within 5 years, then the exemption claimed earlier shall be withdrawn and treated as LTCG in the year in which bonds are transferred/converted into money i.e. full cost system is followed u/s. 54 EC of Income Tax Act, 1961.

5. Sec. 54F: Exemption for Any Long Term Capital Asset (LTCA) (other than residential house property)

(a) Eligible Assessee: Individual/HUF

(b) Asset to be transferred: any LTCA (except residential house property)

(c) Asset to be acquired: One Residential House Property in India.

(d) Time Limit: One residential house property should be purchased within 1 year before or 2 years after the date of transfer or constructed within 3 years after the date of transfer.

(e) Capital Gain Account Scheme (CGAS)/Deposit Scheme: The Assessee (Individual/HUF) should either acquire house property or deposit desired amount in CGAS up to the due date of return filing. The amount deposited should be utilized for the purpose of residential House Property only. If the deposited amount is misutilized, the exemption claimed earlier shall be withdrawn.

(f) Amount of Exemption: (i) if net consideration is fully utilized then capital gain is fully exempt; (ii) if net consideration is partly utilized then capital gain is partly exempt as per the following formula:-

(g) Lock-in-period: New Asset should not be transferred within 3 years from the date of purchase/construction. If it is transferred then exemption claimed earlier shall be withdrawn and treated as LTCG in the year in which new house property is transferred.

Additional conditions to be fulfilled for Sec. 54F:

1. On the date of transfer of LTCA, assesse should not own more than one residential house property; and

2. Assessee should not purchase another house within 2 years or construct within 3 years after the date of transfer.

If the above conditions are not satisfied then exempt capital gain shall be treated as LTCG in the year in which such violation is done.

6. Sec. 54G: Exemption for Land/Building/Plant/Machinery while industry transfer from Urban Area to Rural Area:

(a) Eligible Assessee: Any person.

(b) Transferred Asset: Land/Building/Plant/Machinery (except furniture) in urban area of an industrial undertaking (LTCG and STCG).

(c) Asset to be acquired: New Land/Building/Plant/Machinery (except furniture) in rural area and shifting expenses.

(d) Time Limit: New asset should be acquired within 1 year before the date of transfer or 3 years after the date of transfer.

(e) Capital Gain Account Scheme (CGAS)/Deposit Scheme: The Assessee should acquire the above mentioned assets only or deposit such amount up to the due date of return filing. If it is misutilized, the exemption claimed earlier shall be withdrawn.

(f) Amount of Exemption: Lower of the following: LTCG/STCG; or Cost of new assets/Deposit Amount

(g) Lock-in-period: The new assets should not be transferred within 3 years from the date of its acquisition. If it is transferred, the exemption claimed earlier shall be withdrawn and it has to be reduced from the Cost of Acquisition (COA) of the new house property, i.e. the reduced cost system is followed u/s. 54 of the Income Tax Act, 1961.

7. Sec. 54GA: Exemption for Land/Building/Plant/Machinery while industry transfer from Urban Area to Special Economic Zone (SEZ).

All the points are the same as Sec. 54G (above). The only difference between Sec. 54 G and sec. 54 GA. u/s. 54GA, U/s. 54 G, Plant and machinery acquired in rural area should be new.

U/s. 54GA, Plant and machinery acquired in SEZ may be new or second hand.

8. Sec. 54GB: Exemption for Residential Property or Plot of Land:

(a) Eligible Assessee: Individual/HUF

(b) Transferred Asset: Residential House Property/Residential Plot of Land (LTCG).

(c) Asset to be acquired: Assessee should acquire equity shares of a “new eligible startup company” {defined u/s. 54GB(6)} upto the due date of return filing and company should acquire new plant and machinery {defined u/s. 54GB (6)(d)} within 1 year from the date of subscription of shares.

(d) CGAS:

(i) For Assessee: Not Applicable;

(ii) For eligible startup company: Company should acquire new plant and machinery or deposit desired amount in CGAS upto the due date of return filing of Assesse.

(e) Amount of Exemption:

(i) If net consideration is fully utilized, the capital gain is fully exempt.

(ii) If net consideration is partly utilized, the capital gain is partly exempt as per the following formula.

(f) Lock-in-period: If the equity shares or new plant and machinery are transferred within 5 years from the date of subscription/acquisition, then exempt capital gains taxable in the previous year of transfer of equity share by Assessee or new plant and machinery by company in the hands of eligible assesse as LTCG.

In case of a technology-driven start-up, the lock-in-period for Computer and Computer Software is 3 years and not 5 years.

The idea behind allowing these deductions is that the tax on capital gains tends to erode a substantial amount from the assessee’s income. However, an assessee has the right to plan its affairs in such a manner that may result in as minimum tax as possible. Hence, these deductions in respect of the investments made into a new capital asset, if strategically done, reduces the tax liability of the Assessee.

Identification and Classification of  Place of Residence of a Company for Assessing of Income

Identification and Classification of Place of Residence of a Company for Assessing of Income

By Deobrat.S.Gaur, Student, University Of Petroleum And Energy Studies, Course-Bcom LLB(Hons) Specialization in Taxation Laws

deobrat11gaur@gmail.com | May, 5 2021

The tax incidence and imposition of tax is dependent upon the residential status of a person. Therefore, the identification and classification of the residence of a person is one of the first steps to be carried out in order to proceed with the assessing of income of a person. The rules for determining the residential status of a person is governed by Section 6 of Income-tax Act.

For the purpose of determination of the place of residence of the companies the concept of POEM is been introduced in Finance Bill 2015 which amended the Section 6 of the existing Income Tax Act, 1961, replacing the words stated there control and management by Place of Effective Management.

The condition for determination of residential status of the company will be on:

1) If A the company is Indian company – then it is presumed to be Resident of India

2)The foreign company- then the test of POEM is applied.

Poem is universally recognised test for the purpose of determination of the residential status of the company, which is either incorporated in a foreign Jurisdiction, as per the explanation facilitated in section 6(3) POEM mean, any place where key management and commercial decision that are of quitessential importance taken or decisions which are necessary for the conduction of a business.

Hence, foreign company is considered resident in India if the place where key management and commercial decision that are of quitessential importance taken or decisions which are necessary for the conduction of a business are taken in India. To bring to tax those companies that are incorporated outside India but controlled from India, the condition of POEM has been introduced.

CBDT issued guidelines for determining POEM by way of Circular No 6 of 2017 dated jan 23 2017 states that:-

The foreign company whose turnover is 50 crore or more , its POEM will have to be seen.

For the purpose of determination of POEM, we need to see:

A) ABOI .i.e the test which check whether the company is engaged in an active business outside India or not , and if it satisfied, then POEM is outside India

And

B) Majority of Board meeting Held Outside India:

The ABOI test lays down that, for the purpose of sound determination active business outside India following is to be analyzed:

a) The company’s passive Income is not more than 50% of its total income

b) The 50 % or more of the aggregate assets of the company are situated outside India.

c) The 50 % or more of the total no of Employees employed in the company are situated outside India , or 50% or more are not the resident in India

d) The aggregate or the total pay roll expenses of those employees are less than 50%

Passive Income would mean income generated from the Transaction where Both the sales and Purchase of good is conducted from and enterprise to its related enterprises

Income from Interest, Dividend, Rental Income , Income from Capital Gains etc..

If Aboi i.e all the 4 test laid down and Majority of Board meeting Held outside India, if both are outside India, then the company is outside India, hence a Non Resident.

CASES IN WHICH ABOI is not situated Outside India , – in such scenario The POEM will be determined after analyzing the following.

• To determine the person who is actually responsible in making the key managerial or the commercial decision

• And identification of the place where the decision are taken meaning of the term “Business Connection”.

Section 9 talks about income which is deemed to accrue or Arise in India

A relationship of business of Non- resident with Indian Territory which yields profits or gains to NR, then such income will be deemed to accrue or Arise in India. The connection between the business of NR and India is known as business connection.

Non Resident will have business connection in India if

a) If an agent or any person habitually conclude contract on behalf of Non Resident, or

b) If the agent or the person plays principal role in concluding contract on behalf of Non Resident, or.

c) If the agent or the person maintains stocks and delivers in India on instructions of Non Resident ,or

d) The agent or person habitually secures orders mainly and fully for the Non Resident,

Income from such business connection to the NR will be income deemed to accrue or arise in India, even if it arise outside, Provided the Agent should have dependent status and not the independent status

E.g. if agent has independent status where he is securing order for many Non-Resident and having independent status, then there will be no business connection, hence only if the agent secures orders mainly and fully for the Non Resident,

Explanation 2A attached to section 9(1) states applicable from 1st march 2019, significant economic presence of a particular NR in India then , the NR will have business connection in India, nature of transaction should be such that transaction in respect or good service which includes download of data etc. in respect.

The cases in which the business connection of NR will not be considered to have business connection in India

a) If the agent /person is just purchasing in India and exporting, neither selling, nor concluding any contract in India

b) If the agent or person is just collecting news and views in India , for transmission outside India

c) If the person is NR and also not a citizen he comes to India to shoot cinematographic flim or movie in India

In case of partnership, all the partners, should be Non Resident and not a citizen
In case of company all the shareholders Non Resident and not a citizen

d) If the foreign company is mining diamond outside India, and just displaying raw uncut diamond in India , in the specific zones notified by Indian government in India.

Is Live-in Relationship Still Against Indian Culture?

Is Live-in Relationship Still Against Indian Culture?

 

By Amrutha Bawgi and co-authored by Thanmai Sree, Presidency University, Bangalore

amruthabawgi@gmail.com, thatha.thanmai@gmail.com| May 11, 2021

ABSTRACT

It is a known fact that India is a country rich in culture and history. We also know that India has been embracing western culture in recent years, whether in science, technology, education, politics, or even marriage. In India, the term “live-in relationship” has become something of a trend. Two people who live together without being married and who do not share the same obligations as a married couple. However, many people regard this as a taboo that offends Indian culture. This article discusses whether such relationships are against Indian culture and whether they are legal.

Introduction

India is a country with different religions and cultures. Different part of the country has a different culture. Indians are very conservative they abide by the rules of their Gods which again differ based on religion. In India especially Hindus treat marriage as sacramental bonding between two people. The concept of husband, wife and family is still given utmost importance in many communities of the country. Cohabitation had been a taboo since British rule.

These days younger generations are following this western culture called live-in relationship which means basically a relationship in which a man and a woman mutually decide to live together under one roof without getting married to each other. This is a common concept I western culture which is being adopted by Indians these days.

Younger generations or few set of people in the country have a really good opinion on these relationships. They believe that live relationships help them to check their compatibility before marriage. To test whether they really can stay together or whether they can adjust to their partner’s requirement. Live-in-relationship is a de facto union in which couple shares common bedroom without solemnizing marriage. It is to determine whether they could live with each other for their entire lives. And these people believe is that it does not involve families as to the way related to families in marriage. If the couple decide not to live together anymore then they mutually break up without really involving the families.

But again, there is large percent of population in the country which believes that live-in relationships are against Indian culture. Because in India especially, the Hindu religion prefers ‘One man, one wife’ as the most sacred form of matrimony. Indian believe that people should use traditional way of knowing each other that is arrange marriage, dating, texting, meeting up frequently to get to each other. But not to the cross the line drawn by the society in terms of marriage and sex [1]. Marriage is sacred bonding between a couple who have taken the marriage vows to be with each other no matter whatever happens and seek the blessings of elders. Because in the case of live-in relationship if the girl gets pregnant and they decide to break up it will lead to humiliation and troubles to the girl.

Generally, in India men do not want to marry a girl who is pregnant before marriage in most cases this will lead to abortion which is again illegal. Indians try to pretend like Western people but 90% of the men are obsessed with “virginity”, they fail to think beyond that. They will easily tag a non-virgin girl as bad, because she has crossed her limit to go and live-in with a guy who wasn’t her husband. Marriage is socially and morally binding on couples so they think twice before filing divorce, but live-in relationships may or may not work.

Difference between live-in relationship and marriage

The main difference between live-in relationship and marriage is the matrimony or the wedlock, a recognized action in which both parties create a union or sign contracts which establishes certain rights and obligations. Whereas live-in relationship nature of marriage where both partners enjoy individual freedom and live in a shared household without being married to each other [2]. It involves continuous cohabitation between the parties without any responsibilities or obligations towards one another. There is no law tying them together and consequently either of the partners can walk out of the relationship, as and when, they will do so [3].

Legality of live-in relationship in India

Indian judiciary have never clearly showed whether these relationships are legal or not but neither did it deny. It focused giving justice to the parties. It decides cases depending on the circumstances and social morals.

But in these recent years there have been few landmark judgments by the judiciary which deals with live-in relationship and in some circumstances considers it as a legal relationship. In Payal Katara v. Superintendent Nari Niketan Kandri Vihar Agra and Others [4] the high court of Allahabad ruled out that a lady of about 21 years of age being a major, has right to go anywhere and that anyone, man and woman even without getting married can live together if they wish. In Patel and others case the apex court observed that live- in –relationship between two adults without formal marriage cannot be construed as an offence.

Also, the judiciary recognized the child out of these relationships legitimate if they are together for a very long time. This was decided in the case of In Radhika v. State of M.P. [5] the apex court observed that a man and woman are involved in live-in-relationship for a long period, they will be treated as a married couple and their child would be called legitimate [6].

Maintenance of Women

The Right of maintenance is granted in all the personal laws i.e., Hindu law, Muslim Law, Christianity, or Zoroastrianism. However, these rights are only applicable for a married woman i.e., the wife. None of these regions consider a live-in relationship as a marriage. Instead, if a woman lives with a man without marring that women is considered as an unchaste. But this is not the situation of the judicial system, the judicial system has made a remedy available for woman in such situations under Section 125 of the Crpc [7]. In the beginning a woman who was in a live-in relationship was not considered as a wife and was not allowed to use this provision, later on, Malimath committee report and the 8th Law commission recommended to include woman are in a live-in relationship within the purview of Section 125. In Abhijit Bhikaseth Auti v. State of Maharashtra and Others [8] the supreme court accepted this principle and asserted that marriage in a strict form need not be shown to claim maintenance under section 125 of the CrPC. Women can also seek for additional maintenance under any other law as per section 20(1) of the Protection of Women from Domestic Violence Act [9].

Maintenance of Children

The maintenance of the child born from the parents who are in a live-in relationship is also considered equally as of how a child is born out of martial relations according to the judiciary. According to Hindu law the father has to maintain the child, whereas according to Muslim law the father has no such obligation. But section 125 of the CrPC provides a legal right to children to claim for maintenance even if the personal laws do not consider them as a legitimate child.

Section 21 of Hindu Adoption Act, 1956 says that a son whether legitimate or illegitimate till the time he is minor and so long the daughter is unmarried she shall be entitled to maintenance by his/her father or from his estate of his/her deceased father. And if there is any denial of maintenance rights to children who are born out of live-in relationship it could be challenged in the court for their rights under Article 21 [10]. This decision was upheld in the Kerala High court.

In case of the woman and man separating from a live-in relation and they have a child, then the custody of the child will be decided by the court on the bases of the facts and circumstances. This was decided in the case of Gita Hariharan v. RBI [11].

Domestic Violence Act, 2005

The domestic violence Act was enforced in 2005 as an attempt to protect women from physical, mental, verbal, and economic abuse in marital relationships. In the beginning this act was only applied to the married couple according to Section 2(f) of the DV Act. Later on, the supreme court noticed the fact that the definition also includes that this not only applies to married couple but also to a ‘relationship in the nature of marriage’.

According to Section 2(f) of the Act the term “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family [12]. Many courts have tried to interpret the term ‘a relationship in the nature of marriage’. This issue was discussed in length in the case of Indra Sharma v. VK Sharma [13]. In this case the supreme court defined the term marriage and explained how a man and woman is recognised as husband and wife. It further laid down 8 guidelines that are to be followed to decide whether the relationship of the women and man can consider as a relationship in the nature of marriage. This term has been mentioned and explained in many other cases after these 8 guidelines were laid down. Therefore, considering all this even the Supreme Court in a couple of cases has allowed live-in relationships to be covered within the ambit of the law specified.

Conclusion

The Indian culture does not like pre-marital sex; therefore the legislature also cannot promote it, though at times the couple may express their opinions intensively personal and go against it. Thus, the judiciary has to ponder over such controversies and issues and bring a proper rule and amend the act in such a way that the women and the child born out of live-in relationship are protected and are given equal rights like a marital relationship.

[1] https://www.careerride.com/view/live-in-relationships-are-against-indian-culture-9084.aspx
[2] https://www.legallyindia.com/views/blogger/abhay-nevagi-associates?format=feed
[3] https://www.legallyindia.com/views/entry/right-of-maintenance-to-women-in-live-in-relationships
[4] AIR 2001 ALL 254
[5] ILR [2008] MP 58
[6] http://www.legalserviceindia.com/legal/article-2159-present-scenario-of-live-in-relationship-and-its-judicial-findings-an-analysis.html
[7] CrPC 1973
[8] Crl. W.P. No. 2218 of 2017
[9] DV Act, 2005
[10] Indian Constitution Of India
[11] AIR 1999, 2 SCC 228)
[12] Section 2(f), The Protection of women from Domestic Violence Act, 2005.
[13] (2013) 15 SCC 755

Bibliography

• http://www.legalserviceindia.com/legal/article-2159-present-scenario-of-live-in-relationship-and-its-judicial-findings-an-analysis.html
• https://www.legallyindia.com/views/blogger/abhay-nevagi-associates?format=feed
• https://www.legallyindia.com/views/entry/right-of-maintenance-to-women-in-live-in-relationships
• https://www.careerride.com/view/live-in-relationships-are-against-indian-culture-9084.aspx
• http:// Live-in-Relationships: The Indian Perspective, India Law Journal
• Ms. Githa Hariharan & Anr vs Reserve Bank of India & Anr on 17 February 1999 (indiankanoon.org)
• (thebetterindia.com)
• Anuja Agarwal, “Law and Live-in Relationships in India”, Economic & Political Weekly

SEAT OF ARBITRATION AND TERRITORIAL JURISDICTION OF THE COURT

SEAT OF ARBITRATION AND TERRITORIAL JURISDICTION OF THE COURT

 

By Jineshi Thakar, Advocate

jineshi1010@gmail.com | May 1, 2021

Over the years, whenever laws relating to arbitration have been discussed upon, legal concept of seat of arbitral proceedings and territorial jurisdiction of courts thereto has always been debated at length. The courts have exhaustively scrutinized the concept through its several judgments; In yet another case before the Hon’ble Apex Court, it had to juxtapose the aforesaid legal concepts in the matter of M/S. Inox Renewables Ltd. v. Jayesh Electricals Ltd.

In order to resolve the dispute amongst themselves, the Parties had mutually agreed to change the place of arbitration from Jaipur to Ahmedabad, irrespective of the specific clause as to the same, which was recorded by the Arbitrator in the award. Pursuant thereto, the Arbitrator passed an award in favour of Jayesh Electricals Ltd. Thereafter, M/S. Inox Renewables Ltd. filed a petition under Section 34 of the Arbitration and Conciliation Act, 1996 before the Commercial Court at Ahmedabad and the judgment was passed in favour of Jayesh Electricals Ltd. M/S. Inox Renewables Ltd, thereafter filed a Special Civil Application bearing No. 9536 of 2019, before the Hon’ble Gujarat High Court, against the order of the Commercial Court, Ahmedabad which was dismissed, holding that the courts at Rajasthan would have jurisdiction to the petition under Section 34. Subsequent to the said judgment, M/S. Inox Renewables Ltd filed an appeal before the Hon’ble Supreme Court.

The Supreme Court whilst determining the issue pertaining to the jurisdiction was posed with the following propositions on behalf of Jayesh Electricals Ltd:-

(i) The place of arbitration cannot be changed without a written agreement between the parties;

(ii) The shift in the place of arbitration by mutual consent does not amount to the change in the seat of arbitration and that the same is done under Section 20(3) of The Arbitration and Conciliation Act, 1996; and

(iii) The arbitration clause shall be read independently from that of the clause pertaining to the jurisdiction of the court before which further remedies may be sought.

The Supreme Court disproved the above propositions whilst relying on the judgment of BSG SGS SOMA JV v. NHPC Limited [1] as well as Indus Mobile Distribution Private Limited v. Datawind Innovations Private Limited [3]. The Court observed that since the change in the place of arbitration was recorded with the consent of both the parties and the same remained undisputed by them, a separate agreement isn’t required to record the same. Secondly, the Court opined that the change in the venue of arbitration is by mutual consent and therefore it is as per Section 20(1) of the Arbitration and Conciliation Act, 1996 and not as per Section 20(3) and the same amounts to the seat of arbitration. The court relied on the judgment of BSG SGS SOMA JV [3] which read as under:-

“53. In Indus Mobile Distribution (P) Ltd., after clearing the air on the meaning of Section 20 of the Arbitration Act, 1996, the Court in para 19 (which has already been set out hereinabove) made it clear that the moment a seat is designated by agreement between the parties, it is akin to an exclusive jurisdiction clause, which would then vest the courts at the “seat” with exclusive jurisdiction for purposes of regulating arbitral proceedings arising out of the agreement between the parties.”

Lastly, the Court observed that the entire arbitration clause has to be read as a whole alongwith the clause pertaining to the jurisdiction of the court and further noted that, “the moment the seat is chosen as Ahmedabad, it is akin to an exclusive jurisdiction clause, thereby vesting the courts at Ahmedabad with exclusive jurisdiction to deal with the arbitration.”

The Court through this judgment highlighted distinctly that the venue of arbitral proceeding mutually agreed by the parties amounts to the seat of arbitration and hence the exclusive jurisdiction then vests with the court wherever the seat of arbitration is. The appeal was allowed and it was held by the Supreme Court that the court in Ahmadabad had the jurisdiction to deal with the Section 34 petition.

[1] (2020) 4 SCC 234

[2] (2017) 7 SCC 678

[3] supra

MERE USE OF TRADEMARK IN AN ARTICLE DOES NOT AMOUNT TO FALSE APPLICATION

MERE USE OF TRADEMARK IN AN ARTICLE DOES NOT AMOUNT TO FALSE APPLICATION

 

By Heena Thalesar, Advocate

heenathalesar2233@gmail.com | April 28, 2021

BACKGROUND OF THE CASE:-

Recently, in a judgement delivered by the Hon’ble Bombay High Court in Prateek Chandragupt Goyal vs. State of Maharashtra and others (Criminal Writ Petition No. 62 of 2021), it has quashed an FIR registered by Pune City Police against one Journalist Mr. Prateek Chandragupt Goyal for using logo of “Sakal Media Group” in two articles which were published on 27 March 2020 and 11 June 2020 respectively on an online news portal “news laundry”. The case was registered at Vishrambag Police Station at Pune for an offence under Section 103 of Trademarks Act, 1999.

FACTS OF THE CASE: –

In the present case, the Petitioner sought quashing of FIR and further contended that the ingredients of the said offence are not made out in the facts and circumstances of the present case and that, therefore, the FIR deserves to be quashed. The Petitioner is a Journalist working with online news portal ‘News laundry’. It is stated that he had earlier worked with other Media entities, including ‘Sakal Times’. According to the Petitioner, he specializes in investigative journalism and that he has been working in this field since the year 2012. The FIR has been registered against the Petitioner at the behest of Respondent No.2 (original informant), who is the Chief Administrative Officer of Sakal Group, that publishes newspapers in Marathi language called ‘Sakal’ and in English language called ‘Sakal Times’. The Respondent No. 2 approached the Police for registration of FIR on 16th September, 2020 claiming that the Petitioner committed the above offence by falsely applying trade mark of Sakal Group in two articles authored by him and published in the aforesaid news portal called ‘News laundry’. The two articles were published on 27th March, 2020 and 11th June, 2020.He further contended that in the said articles, the registered trade mark of the Sakal Media Group and Sakal Times was shown with prominence at the top. In the article published on 27th March, 2020, the heading was ‘The future is bleak: Sakal Times staffers say they have been sacked in violation of Maharashtra Order’. In the article published on 11th June, 2020, the heading was ‘They wanted to get rid of us: over 50 people laid off as Sakal Times closes down’. According to Respondent No.2 these were highly defamatory articles against Sakal Media Group and that use of the official logos / trade mark of the Sakal Media Group and Sakal Times on these articles clearly amounted to falsely applying the said trade mark, thereby resulting in commission of an offence under Section 103 of the Trademark Act, 1999. In the FIR, it was stated that the offence was committed from 27th March, 2020to 11th June, 2020and, as noted above, the FIR, stood registered after three months on 16th September, 2020. It is significant that prior to lodging the complaint, leading to registration of FIR, a legal notice dated 12th June, 2020, was sent to the Petitioner alleging that the Sakal Media Group was defamed by him and an amount of Rs.65,00,000/- was claimed from him. 19th June, 2020, the Petitioner sent a reply to the said legal notice. On 03rd September, 2020, the Sakal Media Group filed a suit for injunction against the News laundry Media Pvt. Ltd. seeking an injunction against the said defendant and the Petitioner for removing the said articles from the news portal. The present writ petition was filed in October 2020, wherein notice was issued and it was directed that while the investigation shall continue, the charge sheet could be filed only with the leave of this Court. Thereafter, on 27th January, 2021, this Court recorded statement made on behalf of the Petitioner that he would appear before the Investigating Officer on a specific date and it was directed that the Investigating Officer shall not insist for production of laptop and hard disk by the Petitioner.

CONTENTION OF THE PETITIONER: –

The trade mark of Sakal Media Group was shown in the articles written by the Petitioner and published on the news portal ‘News laundry’, only to indicate that those specific articles pertained to the Sakal Media Group. In these circumstances, there was no question of the said trade mark being falsely applied to any goods or services, so as to attract the ingredients of the aforesaid offence. Additionally, and without prejudice to the aforesaid submissions, the learned Senior Counsel for the Petitioner submitted that the action of the Petitioner was protected as a nominative fair use of the trade mark of Sakal Media Group under Section 30(1)(a) and (b) of the Trademarks Act, 1999.

CONTENTION OF THE RESPONDENTS: –

Learned Counsel appearing for Respondent No.2 submitted that admitted facts in the present case demonstrated that ingredients of the offence under Section 103 of the aforesaid Act were prima facie made out and there was no question of quashing of FIR. By referring to Section 103 of the aforesaid Act, the learned Counsel appearing for Respondent No.2 submitted that in the present case, the Petitioner had clearly falsely applied the registered trade mark of Sakal Media Group by prominently showing the mark on articles published on the news portal ‘News laundry’. It was submitted that when the word ‘Sakal’ was clicked on online search, it led to the said articles authored by the Petitioner and published on the news portal ‘News laundry’, thereby demonstrating that the offence under Section 103 of the said Act was indeed committed in the present case. The learned Counsel emphasized upon Section 102(2)(b) of the said Act in support of the said contention and submitted that since Sakal Media Group and the news portal ‘News laundry’ were in the same segment of providing news services, the offence was clearly committed in the facts and circumstances of the present case. The learned Counsel for the Respondent No.2 relied upon judgment of the Madras High Court in the case of Consim Info Pvt. Ltd. Vs. Google India Pvt. Ltd. and Ors. 2010(6) CTC 813 and judgment of Delhi High Court in Hawakins Cookers Ltd. Vs. Murugan Enterprises 2012 SCC OnLine Del 2118. It was further submitted that merely because Respondent No.2 had filed a Civil suit for injunction against News laundry Media Private Limited, it could not result in the criminal proceedings being terminated at this stage.

JUDGEMENT:-

The Hon’ble High Court held that “Mere use of the registered trade mark of the Sakal Media Group in articles authored by the Petitioner and published by the news portal ‘News laundry’, do not fit into the definition of false application of the trade mark in relation to goods or services.” It is an admitted position that the articles were published in the online news portal ‘News laundry’ and there was no suggestion that the said news portal itself was that of ‘Sakal’. Merely because an online search for the word ‘Sakal’ led to the aforesaid articles of the Petitioner published in the news portal ‘News laundry’, does not mean that the registered trademark of Sakal Media Group was falsely applied to goods or services by the Petitioner. At worst, it could be said that such an online search leading to the aforesaid articles might be the subject matter of an injunction suit at the behest of Sakal Media Group due to the contents of the said articles, but, that falls within the realm of a civil dispute that could be raised by Pisal. In fact, Pisal did issue a Notice on behalf of the Sakal Media Group (claiming Rs 65 lakh for defamation) and chose to file a suit for injunction before the competent Civil Court, which is pending.

CONCLUSION:-

For use of registered trademark of the Sakal media group in the article authored by Prateek Gupta Goyal and published by the news portal news laundry do not fit into the definition of false application of the trademark in relation to goods and services.

POWER OF APOLOGY IN MEDIATION

POWER OF APOLOGY IN MEDIATION

 

By DHRUTI M KAPADIA-ADVOCATE, SOLICITOR, ADVOCATE-ON-RECORD, SUPREME COURT OF INDIA & MEDIATOR

kapadiadhruti@gmail.com| April 24, 2021

“A WORD OF APOLOGY CAN HELP RESOLVE DISPUTES –IT IS WORTH THE TRY THAN HOLDING UPON EGOS TO CONTINUE THE DISPUTES-LEARN TO APOLOGISE IF YOU REALLY DESIRE TO RESOLVE THE DISPUTE”

Introduction:

When the mind tricks up and makes one realize that they have done a mistake than one must have the guts to admit it to the person wronged which can psychologically help relieve the pressing guilt that built over time.

The prime step in mending a relationship which is broken is by attempting to move towards a sorry-apology as it will help move forward in re-building the trust broken and will be step climbing up to sooth the communication relationship between each other.

The ease one gets by hearing another person say sorry is pretty comforting in the mind and it leads to step forward for opening dialogues , clearing out bitterness towards each other and also will help playing on stuffed emotions between the each other.

Why people Apologize?

Apology is also a healing tool and brings in good gestures between the parties. It says that you share values regarding appropriate behavior towards each other, that you have regrets when you don’t behave according to those values (intentionally or unintentionally), and that you will make greater efforts to live up to your shared standards of behavior. Timing can be crucial. An apology delayed may be an opportunity lost.

Generally it is human nature that when they are hurt or humiliated they often hope for an apology. They may hope that an apology from the person who caused them harm will restore dignity, trust, and a sense of justice. Whether you are requesting an apology or considering giving one, it is important to realize that a thoughtful apology can mend a relationship while a thoughtless one may cause further conflict.

Finally, the good apology is a gift to the relationship. Two people can feel secure in the knowledge that if they behave badly, even fight terribly, they can repair the disconnection. We strengthen our relationships when others know that we’re capable of reflecting on our behavior, that we’ll listen to their feelings, and that we’ll do our best to set things right.

Example of how to put forth Apology:

You could say: “I’m sorry that I used derogatory language at you yesterday at dinner party. I feel embarrassed and ashamed by the way I acted.”

To resolve the issue by apology, your words need to be sincere and authentic. Be genuine and honest with yourself, and with the other person, about why you want to apologize and then only you can expect the other person to let go or forgive.

In mediation the most compelling apology would consist of 6 main elements:

 Expression of regret
 Explanation of what went wrong
 Acknowledgment of responsibility
 Declaration of repentance
 Offer of repair
 Request for forgiveness

Why People don’t apologize?

Main reason why people don’t apologize is because they are afraid the apology will be seen as a sign of weakness and/or guilt. But in reality, an apology indicates great strength as it is a munificent act that restores and rehabilitates the self concept of the offended party.

Therefore in mediation apology mediator and parties must make an attempt to move forward the sessions with apology it may be as simple as resolving a dispute at home by saying a sorry and conflict between the parties may end.

Apology Advice to Clients:

One road leads toward anger, fear, hate confrontation, bitterness, and revenge, and pushes forward towards disputes and heavy litigation.

A second leads moves towards empathy, acceptance, honesty, collaboration, and mutual respect; it draws the ropeway into negotiations to resolve the disputes.

Yet there is a still deeper third road that is largely hidden from many of the clients who come for advice , this is a very sensitive area which needs efforts to move into insight, discovery, wisdom, affection, and heartfelt communications; which enables them to mirror reflect their present. This method encourages the client to apologize; reach forgiveness; seek release, renewal, and reconciliation. It allows us to sustain openhearted relationships. It wakes them up, makes them more mindful of their own reflection and others. It nurtures them towards the session of mediation where they get prepared to apologize. This is the path of transformation and transcendence, of wisdom and heart. As their legal advisor it is essential we advice our clients that revenge is complex whereas apology, forgiveness, and reconciliation are simple, yet powerful transformative tools, and doorways to inner and outer peace in mediation.

This advice and efforts should be continuous while setting up mediation session or during the sessions at times it may be nearly unnoticeable but this advisory tool on apology to be powerful can integrated into every kind of mediation practice. They can help free clients from the past and allow them to reach closure, to let go of whatever has kept them trapped in conflict, and move in healthier, more positive directions, towards deeper levels of resolution and relationships with the other side.

Conclusion:

Tool of apology can be used by mediator to make parties feel comfortable to apologize or even by attorneys to advice the parties in mediation wherein resolving complex multi-party conflicts which include: matrimonial disputes, community, grievance and workplace disputes, collective bargaining, negotiations, organizational and school conflicts, sexual harassment , commercial disputes and public policy disputes.

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Copyright 2020 Quick Legal Formats Private Limited. Legal Formats India is not a "Lawyer Referral Service", does not provide legal advice or representation and does not seek to solicit clients for the purpose of legal representation. Neither is Legal Formats India a law firm nor a substitute for an attorney or an advocate or law firm or legal practitioner. Your use of this website constitutes acceptance of the Terms of Use, Privacy Policy and Cookie Policy.

Designed and Developed by MagentaHive Technologies.

Copyright 2020 Quick Legal Formats Private Limited. Legal Formats India is not a "Lawyer Referral Service", does not provide legal advice or representation and does not seek to solicit clients for the purpose of legal representation. Neither is Legal Formats India a law firm nor a substitute for an attorney or an advocate or law firm or legal practitioner. Your use of this website constitutes acceptance of the Terms of Use, Privacy Policy and Cookie Policy.

Designed and Developed by MagentaHive Technologies.

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