The Real Estate (Regulation & Development) Act, 2016 was formulated to safeguard the interest of home buyers and to infuse transparency and credibility into the otherwise unregulated real estate sector.
The Bill was passed by Rajya Sabha on 10th March 2016, by Lok Sabha on 15th March 2016 after multiple amendments to the regulations Act was executed on 1st May 2017.
The real estate sector has been one of the top most contributions to the country’s Gross Domestic Product (GDP) and employment creation. Surprisingly, inspite of being such an important part of the economy, the real estate sector was unregulated for numerous years. In order to regulate the aforesaid sector, the Indian Parliament passed a legislation called as the Real Estate Act, 2016 which was made effective on 1st May, 2016.
With the advent of RERA, there began a norm for strict compliance that has to be adhered by each and every developers, builder and construction giant in different part of the country. Most of the State has established their own RERA offices where they work under the establishment rules and regulations. However, the act is not retrospective in nature it mandates every people to be registered with the respective state RERA offices by the promotion of the Company within three months of the Commencement of the Act.
The RERA was enact to protect the interest of the homebuyers and boost investment in the sector. The provisions like timely completion and delivery of projects to the buyers.
One of the feathers of RERA is the requirement of registration of the real estate project by the “Promoter” with RERA which falls with the planning areas. In the absence of such registration, the promoter of the real estate project is not permitted to advertise market, sell or offer for sale, or invite persons to purchase in any manner in any real estate project or part of it.
A “Real Estate Project” is defined as the development of building. Converting an existing building or part of apartments, development of land into agreements/plot for purpose of selling and includes common areas, development works, all improvements and structures thereon and all easement, rights and appurtenances belonging to such building or land or structure.
The terms of section 3 of RERA, the following real estate projects are not required to be registered:
In addition to the registration of real estate projects, every real estate Agent is also required to get itself registered before facilitating the sale/purchase of any real estate project or part of it, by making an application along with requisite information/documents and fee.
In terms of Section 4 of RERA, an application require to be made by every promoter alongwith prescribed fee for registration of its real estate project and shall be inter alia accompanied with the prescribed document including:
The Registration granted shall be valid for period declared by the Promoter for completion of the real estate project or phase thereof as submitted in the affidavit along with the application for registration.
The Registration granted by the Authority may be extended by it upon receipt of application from the Promoter in this regard in the following circumstances:
RERA stipulates various compliances with respect to a real estate project. If the same are not complied with, the registration of already registered real estate project, may get revoked. The Authority may revoke a registration on the basis of a complaint received or suo moto by the Authority by giving 30 days notice in writing to the Promoter of such real estate project stating grounds of proposed revocation and instructing him to show cause as to why the registration should not be revoked. On the basis of the Promoter’s reply to the show cause notice, the Authority it’s may allow the real estate project to be registered or alternatively may cancel the registration.
Section 9 and Section 10 provides that Rs. 10,000/- (Rupees Ten Thousand Only) for every day during which such default continues, which may cumulatively extend upto 5% of cost of plot of real estate project for which sale or purchase has been facilitated as determined by RERA.
RERA like Act has been long overdue to reign in the real estate sector to ensure transparency and boost confidence among end users. With numerous examples of project delays, plan violations, lack of necessary approvals in commencement of a project, the Act comes as a breather for many current or future home buyers.
To eliminate promoters of low repute that seek to build shoddy projects without being accountable to anyone but are only interested in the cash inflow and who do not accept responsibility of any post construction defect. Such promoters shall find it hard to sustain themselves in the RERA regime.
What is FCRA
Foreign Contribution Regulation Act, 2010 or FCRA is a law of government of India which regulates receipt of foreign contributions or aid from outside India to Indian territories. This is essential to ensure that such aid does not affect political or any other situation in India. For genuine donation, the provision of law is not very difficult to comply. The regular compliance is limited to filing of annual return every year. This law is enforced by the ministry of Home affairs, Government of India. There is a separate section in the ministry to ensure compliance to the Foreign Funding Registration.
FCRA 1976:
On 31st March 1976, FCRA was enacted with an aim to regulate the
utilization of foreign contributions/hospitality by individuals, associations to keep it consistent with the values of sovereign, democratic republic. The FCRA was enacted in 1976 in order to maintain strict control over voluntary organisations and political associations that received foreign funding. In the year 1984, an amendment was made to the act requiring all the Non Governmental Organisations (NGO) to register themselves with the Home Ministry. In 2010, the act was repealed and a new act with strict provisions was enacted.
FCRA 2010:
FCRA 2010 is a consolidating Act passed by the Government of India in the
year 2010. It seeks to regulate the foreign contributions or donations and hospitality air travel, hotel accommodation etc) to Indian organizations and individuals and to stop such contributions which might damage the national interest. It is an act passed for regulating and prohibiting the acceptance and utilization of foreign contribution or foreign hospitality by companies, associations or individuals for such activities that could prove to be detrimental to the national interest and for matters connected
therewith or incidental thereto. Since the Act is internal security legislation, despite being a law related to financial legislation, it falls into the purview of Home Ministry and not the Reserve Bank of India (RBI).
Objective of FCRA:-
Major ingredients of FCRA:-
Who can accept Foreign Contribution?
Organizations working for definite cultural, social, economic, educational or religious programs, if and only if they are
Who are debarred from receiving Foreign Contribution?
Applicability:-
It extends to whole of India, and also applies to
a. Citizens of India who are outside India.
b. Associate branches or subsidiaries, outside India, of companies or bodies
corporate, registered or incorporated in India.
Foreign Contribution:-
FC means donation, delivery, or transfer made by any foreign source of:–
a. Any article other than personal gifts of market value not exceeding such sum as may be specified by the Central Government.
b. Any currency whether Indian or foreign.
c. Any security including foreign security.
This will also cover contribution received from any person who has in turn received it from a foreign source and also interest accrued on FC deposited in the bank.
However, any amount received, by any person from any foreign source in India, by way of fee (including fees charged by an educational institution in India from foreign student) or towards cost in lieu of goods or services rendered by such person in the ordinary course of business, trade or commerce, whether within India or outside India, shall be excluded from the definition of foreign contribution.
Foreign Source:-
It includes:–
a. Government of any foreign country or any agency of such government;
b. Any international agency except United Nations or any of its specialised
agencies, World Bank, International Monetary Fund or such other agency as
the Central Government may, by notification in the Official Gazette, specify;
c. Foreign company;
d. Corporation, other than foreign company, incorporated outside India;
e. A multinational corporation;
f. A company where more than 50% of its share capital is held by a foreign
government or citizens of a foreign country or foreign entity (includes
company, corporations, trusts, societies or other associations of individuals
registered in foreign country);
g. A foreign trust or foreign foundation and includes trust or foundation mainly financed by a foreign country and;
h. Citizen of a foreign country.
i. Foreign Trade Union, Society, Club or Other Association.
Amount received from a non-resident Indian citizen in foreign currency, would not be treated as foreign source.
Restrictions on Accepting FC
The person having a definite cultural, economic, educational, religious or social programme can accept FC, only if:
a. It is registered with the Central Government under this Act or takes prior
permission before receiving each contribution.
b. It receives FC only through one designated bank account.
c. Central Government is kept intimated as to the amount, source and manner in which FC was received and utilised.
Prior Permission
a. Application for prior approval to be made in Form FC 4.
b. Prior approval to be donor specific, donee specific and purpose specific.
Eligibility criteria for grant of registration:-
The Association must be registered (under the Societies Registration Act, 1860 or Indian Trusts Act 1882 or section 8 of Companies Act, 2013 etc.)
The Ministry of Affairs has introduced a new facility “FCRA – Online” to facilitate associations to file their applications for registration and submit statutory forms online.
Restriction on Administrative Expenses and Speculative Activity
Every person, registered or having prior permission, shall not, as far as possible, incur administrative expenses in excess of 50% of the FC received in that financial year. Foreign contribution or any income arising out of it shall not be used for speculative business.
Transfer of FC to Other Registered or Unregistered Persons
a. Transfer of FC funds to another person who is not registered or has not
obtained prior permission to receive foreign contribution will not be permitted unless pre-approval of the Central Government is obtained. Application for such pre-approval is to be made in Form FC 10.
b. In such case, the transferor may apply for permission to transfer not more than 10% of the total value of FC received.
c. Transfer of FC funds is permitted if the transferee is a registered organisation or has obtained prior permission under section 11.
Inspection & Seizure
a. The Central Government has been empowered, to inspect as well as seize
the accounts and records if it has reason to believe that any provisions of this Act or any other law relating to foreign exchange has been contravened.
b. Central Government may seize and/or confiscate any article, currency or
security in relation to which any provision of this Act has been contravened.
c. The seized records and accounts are to be released if no proceedings are
initiated within six months from the date of seizure.
Custody of FC when certificate of registration is cancelled
FC in Excess of Rupees One Crore in a Financial Year
Any person in receipt of FC in excess of ₹ one crore in a financial year, shall
maintain summary data of receipts and utilisation of FC pertaining to the year of receipt and the subsequent year in the public domain. The Central Government shall also display such summary data through its website.
HOW FCRA WAS USED, ABUSED AND MISUSED:-
FCRA has been turned into an instrument of repression, one that the government has used to cut off vital funding to groups that may hold positions contrary to the government’s own. By extension, the granting and cancelling of FCRA registration has become grist for the media mill, leaving many organisations including Greenpeace, battling false perceptions and responding to allegations of being ‘anti- national’ and ‘anti-development’ instead of being able to focus on our constructive campaigns for clean air, safe food and a healthy environment.”
In 2014, the Delhi High Court indicted both the Bhartiya Janata Party (BJP) as well as the Congress of receiving foreign funds in violation of provisions of Foreign Contribution (Regulation) Act (FCRA). The verdict came after public interest litigation
(PIL) was filed by the Association for Democratic Reforms. A division bench
comprising Justice Pradeep Nandrajog and justice Jayant Nath asked the
government and the Election Commission (EC) to act against the two political parties for accepting foreign funds from Vedanta subsidiaries.
The question, at this juncture, is why is the government apprehensive of NGOs whose work is to democratically interrogate so that constitutional rights and freedoms are not violated. Another question is whether the FCRA is indeed a tool of repression as civil society organisations have declared?
In April 2015, a legal analysis was developed by the UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association.
It stated that FCRA norms and regulations “are not in conformity with international law, principles and standards”. The FCRA violates the right to freedom of association, an integral freedom incorporated within the International Covenant on Civil and Political Rights, to which India is a party.
The right, though not absolute, are amenable to reasonable restriction; however, the analysis suggests that restrictions such as “public interest” and “economic interest” invoked under the FCRA cannot be termed as legitimate restrictions as they are too ambiguous and may give rise to arbitrary and discretionary powers.
The Foreign Contribution (Regulation) Amendment Bill 2020
The Foreign Contribution (Regulation) Amendment Bill 2020 has been
introduced in the Lok Sabha on 20th September 2020. The Bill proposes a number of drastic changes to the law governing receipt of foreign contributions and which will have an impact on charitable institutions in India.
The objective of the Bill:
a. To regulate non-governmental organisations by making them accountable and transparent.
b. To regulate religious conversions supported by foreign funds.
c. To broaden the definition of the “government servant” category to include “public servants” among the people who cannot receive foreign funds.
Key Changes:
(1) Prohibition to accept foreign contribution:
Under the Act, certain persons are prohibited to accept any foreign contribution. These include election candidates, editor or publisher of a newspaper, judges, government servants, members of any legislature, and political parties, among others.
The Bill adds public servants (as defined under the Indian Penal Code) to this list. Public servants include any person who is in service or pay of the government or remunerated by the government for the performance of any public duty.
(2) Transfer of foreign contribution:
Under the Act, foreign contribution cannot be transferred to any other person unless such person is also registered to accept foreign contribution (or has obtained prior permission under the Act to obtain foreign contribution).
The Bill amends this to prohibit the transfer of foreign contribution to any other person. The term ‘person’ under the Act includes an individual, an association, or a registered company.
(3) Aadhaar for registration:
The Bill makes Aadhaar number mandatory for all office bearers, directors or key functionaries of a person receiving foreign contribution, as an identification document.
In case of a foreigner, a copy of the passport or the Overseas Citizen of India card for identification is required.
(4) FCRA account:
The Bill states that foreign contribution must be received only in an account
designated by the bank as FCRA account in such branches of the State Bank of India, New Delhi. No funds other than the foreign contribution should be received or deposited in this account.
The person may open another FCRA account in any scheduled bank of their choice for keeping or utilising the received contribution.
(5) Restriction in the utilization of foreign contribution:
The Bill allows the government to restrict usage of unutilised foreign contribution. This may be done if, based on an inquiry the government believes that such person has contravened provisions of the FCRA
.
(6) Renewal of license:
Under the Act, every person who has been given a certificate of registration must renew the certificate within six months of expiration.
The Bill provides that the government may conduct an inquiry before renewing the certificate to ensure that the person making the application: (i) is not fictitious or benami, (ii) has not been prosecuted or convicted for creating communal tension and (iii) has not been found guilty of diversion or misutilisation of funds, among others conditions.
(7) Reduction in use of foreign contribution for administrative purposes:
The Bill proposes that not more than 20% of the total foreign funds received could be defrayed for administrative expenses. In FCRA 2010 the limit was 50%.
(8) Surrender of certificate:
The Bill adds a provision allowing the central government to permit a person to surrender thir registration certificate.
The government may do so if, post an inquiry, it is satisfied that such person has not contravened any provisions of the Act, and the management of its foreign contribution (and related assets) has been vested in an authority prescribed by the government.
(9) Suspension of registration:
Under the Act, the government may suspend the registration of a person for a period not exceeding 180 days.
The Bill adds that such suspension may be extended up to an additional 180 days.
Conclusion:
NGOs are helpful in implementing government schemes at the grassroots. They fill the gaps, where the government fails to do their jobs or where government job is not sufficient.
The government must stick to the ancient Indian ethos of Vasudhaiva Kutumbakam as the framework for its global engagement and should not act with vendetta against the NGOs who criticize its working.
Seamless sharing of ideas and resources across national boundaries is essential to the functioning of a global community, and should not be discouraged unless there is reason to believe the funds are being used to aid illegal activities. Govt. should judicially use its policy. FCRA should be used to bring transparency and accountability in foreign contribution and including in the working of NGO’s but not against NGOs.
Testate : When a person dies leaving a Will.
Intestate Succession : When a person dies without leaving a Will.
Testator : Testator is a person who makes a Will.
Legatee/ Beneficiary : Legatee/ Beneficiary is a person who inherits the property under a Will.
Executor : An executor is a person who is appointed by a testator to execute his Will. An executor is duly bound to distribute the assets of the testator as per provision of Will.
‘Probate’ means the copy of a Will certified under the seal of a court of competent jurisdiction with a grant of administration of the estate of the testator. A probate can be granted only to the executor appointed under the Will. Further, a probate is essential if the Will is for immovable assets in multiple states. The executor is the most important person in the Will. An executor has a duty to collect and realize the estate of the deceased, pay his debts and distribute the legacies as mentioned in the Will by the testator. The duty of the executor is to probate the Will in a manner known to law. The court shall grant probate only to an executor who has been named in the Will.
Letters of Administration are usually issued to the persons entitled under the rules of intestacy (or their guardians if they are minors) where the deceased without a Will.
When someone dies without a will, it’s called dying intestate. Even though a person dies intestate, they still will likely have assets and debts that need to get resolved. The person’s remaining assets are distributed to their heirs, who are determined by state law. Assets go as per class heirs.
Even though there is no will, someone must still do the work of winding up the estate’s affairs and distributing the assets. The court appoints an administrator, who fulfills basically the same role as an executor. The administrator normally must be the deceased’s spouse or next of kin, but it could be anyone with an interest in the estate.
The laws about this are different in each state. A letter of administration is issued to the administrator, giving them the legal authority to act on behalf of the estate.
A Succession Certificate establishes who the legal heirs are and the authenticity of the successor. It is a Certificate given to the successor of a deceased person who dies without leaving a will. The list of debts, securities and assets of the deceased is mentioned. It indicates the relation of the petitioner with the deceased. Along with providing details of other surviving legal heirs and that the deceased died intestate. And the information about the time, date and place of death of the deceased. It means that the certificate holder has authority over the deceased person’s assets of the deceased. The assets may include Insurance, Mutual Funds, Pension (in Employees Provident Fund or otherwise), Retirement Benefits or any other service benefits. In other words, it helps the grantee or the receiver, to recover the debts due to the deceased person.
When the relation between all the partners of the firm comes to an end, this is called dissolution of the firm. Section 39 of the Indian Partnership Act, provides that “the dissolution of the partnership between all the partners of a firm is called the dissolution of a firm.” It implies the complete breakdown of the relation of partnership between all the partners.
Dissolution of a partnership firm merely involves a change in the relation of partners; whereas the dissolution of firm amounts to a complete closure of the business. When any of the partners dies, retires or become insolvent but if the remaining partners still agree to continue the business of the partnership firm, then it is dissolution of partnership not the dissolution of firm. Dissolution of partnership changes the mutual relations of the partners. But in case of dissolution of firm, all the relations and the business of the firm comes to an end. On dissolution of the firm, the business of the firm ceases to exist since its affairs are would up by selling the assets and by paying the liabilities and discharging the claims of the partners. The dissolution of partnership among all partners of a firm is called dissolution of the firm.
Dissolution of a Partnership firm may be effected in the following ways:
• Dissolution without the intervention of the Court.
• Dissolution by Court.
1. By Agreement (Section 40):- A partnership firm can be dissolved any time with the consent of all the partners whether the partnership is at will or for a fixed duration. A partnership can be dissolved in accordance with the terms of the Partnership Deed or of the separate agreement.
2. Compulsory Dissolution (Section 41):- In case, any of the following events take place then it becomes compulsory for the firm to dissolute;
3. Dissolution on the happening of contingent event (Section 42) A firm may be dissolved on the happening of any of the following contingent event:-
4. Dissolution by notice (Section 43) :–In case of partnership at will, a partner can dissolve it by giving written notice of dissolution to other partners duly signed by him. Notice must be very clear and certain. A notice once given cannot be withdrawn without the consent of other partners. Banarsidas v. Kanshi Ram A.I.R. (1963) S.C. 1165 In those cases where a partner has given notice of dissolution at a time when dissolution will give him some advantage over the other partners, he may be held in the firm till the pending transactions are completed.
The court may order for the dissolution of the firm on the following grounds:-
Introduction:
The Lok Sabha (Lower House of Indian Parliament) on Thursday (September 17, 2020) passed three legislations pertaining to the agriculture sector, ostensibly, to push agriculture marketing and commodities trade reforms in the country. The three bills that were passed are
These bills were introduced in the Lok Sabha on day one of the Monsoon session (September 14, Monday). The bills will replace the Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Ordinance, 2020 promulgated by the President on June 5 this year once they are passed by the Rajya Sabha as well.
Bill on Agri market – The Farmer’s Produce Trade and Commerce (Promotion and Facilitation) Bill, 2020
Benefits:
Drawbacks:
Bill on contract farming- The Farmer (Empowerment and Protection) Agreement of Price Assurance and Farm Services Bill, 2020
Benefits:
Drawbacks:
Bill relating to commodities : The Essential Commodities (Amendment) Bill, 2020
A new sub-section 1A in Section 3 of the act stipulated control orders — with respect to the supply of certain foodstuffs was added.
It would be issued only under extraordinary circumstances that may include war, famine, extraordinary price rise and natural calamity of grave nature
Benefits:
Drawbacks:
Conclusion: No doubt, the Bills help farmers by giving them freedom to sell the goods as per their own choice. However, the biggest chunk of Indian farmers are small farmers having no great education or source of income. The Bills, if become Acts, may increase the income of farmers on short term basis, but on long term, the small famers may end up becoming labourers of big corporates. Certainly the bills contemplate corporatisation of farm sector and it has its own advantages as well as disadvantages.
The content of this document do not necessarily reflect the views / position of RKS Associate, but remains a probable view. For any further queries or follow up please contact RKS Associate at [email protected]