Wednesday, 24 June 2015

LEGAL TERMS USED IN HINDU SUCCESSION ACT


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What is meant by agnate and cognate? The words agnate and cognate are used to described lineage One person is said to be AGNATE of another person, if both are related by blood or adoption only through males. 

COGN ATE means, the two persons are related by blood or adoption, but not only through males. Explain the terms full blood, half blood, and uterine blood? Persons who are related to each other and descended by a common ancestor by same wife are said to be related by full blood. Persons being descendants of a common ancestor, but by different wives are said to be related by half blood. 

Persons who are descendants of common ancestress but by different husbands are said to be related by uterine blood. What does the words: heir, interstate; testamentary succession? Heir is a person, both male and female who is entitled to succeed to the property of deceased. Interstate means, a person who dies without making any will as to the succession to his property. In contrast, testamentary succession means, succeeding to the property of the deceased according to the terms of the legally valid will made by the deceased.


Both are two important schools of Hindu Law. Mithakshara law is followed by entire India expect Bengal which follows Dayabagha Law. Sri Vignaneswara is the propounder of Mithakshara School of thought. He was an aestic and has written detailed treatise on Yaghnavalka srnriti which known as Mithakshara Dayabagha is based on the treatise of Jeemoothavahana. There is a basic difference between the two schools of thought with regard to succession Under the Mithakshara Law the inheritance is by survival and succession that one acquires the right to the family property by his birth and not by succession irrespecti ve of the fact that his elders are living. Thus every child born in the family acquires right/a share in the family property. In case of self acquired property, the inheritance in by succession, that is on the death of the owner
In Dayabagha no body acquires the right, share in the property by birth as long as the head offamily is living; that is the children do not acquire any right, share in the family property, as long as his father is alive and only on death of the father, the children will acquire right share in the property.

What is a co-parcener? 

The word Co-parcener is used in relation to Hindu undivided property (joint family). The members of Hindu undivided family are called co- parceners. They are related to each other and to the head of the family. Hindu undivided family may contain many members, but members within four degrees including the head of the family (Kartha) are called co-parceners. Female members are also Co-parceners. The following is the simple example.

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Tuesday, 23 June 2015

AGREEMENTS AND PART PERFORMANCES


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Agreements are instruments wherein two or more parties agree over something or to do some work or to sell or purchase a property. The essential requirement of an agreement is the presence of valid consideration and objects.

Indian contract Act, 1872 deals with agreements. Void Agreements are those which cannot be enforced in any court of law. If the consideration or even a part of consideration or object is unlawful such agreements are deemed to be void agreements. Neither of the party to the agreement can seek any remedy for violation of such agreements in any court of law.  The court declares such agreements as void.


In general, any agreement without consideration is void. But, Section 25 of Indian Contract Act, 1872 has certain exceptions to this general rule. 

According to the section the following agreements without considerations are not declared void:

(a) An agreement which is made in writing and is registered and made out of natural love and affection by a person standing in near relationship.
(b) An agreement which is a promise made to compensate for something done for the promisor by a person voluntarily.  The compensation may be in whole or part.
(c) An agreement which is a promise to pay a debt which is barred by limitation.  Such promises must be in writing and signed by concerned person or his authorized agents. The promise to repay the time barred debt may be in whole or in part.


Sale of an immovable property is an act of contract between the parties. Each party to the contract has definite duties to perform; the vendor has to establish his title to the property, handover the title deeds and vacant possession of the property at the time of registration.  The purchaser has to pay the consideration as agreed, attend the registration office and help in completion of registration formalities.  The vacant possession of the property is handed over to the purchaser at the time of registration.  But in certain cases, the vendor hands over the vacant possession of the property to the purchaser, pending registration of sale deed.  This is called part performance.

Whether part performance is recognised and what are the rights of the purchaser?

Section 53 A of Transfer of Property Act recognises part performance.  The purchaser who gets possession of the property under terms of contracts gets equitable rights. The seller who puts the purchaser in possession and anybody claiming under is debarred from enforcing against the purchaser or anybody claiming under purchaser. The seller cannot enforce eviction against the purchaser, once he has put him in possession of the property. The purchaser can continue and enjoy the possession of the property even though the sale deed is not executed and registered. Section 29 of Registration Act, recognizes the part performance.

If the full sale consideration is not paid, how the seller can proceed against purchaser who is in possession of the property?

The only remedy available to the seller is to file a suit for recovery of balance amount of sale consideration or other rights as provided in the contract of sale.


Section 53 A of Transfer of Property Act stipulates certain conditions;
1. It must be contract for transfer of immovable property for consideration.
2. It must be in writing. 
3. It must have been signed by the seller or his authorised agents.
4. The terms of contract shall be clear, should be ascertainable with reasonable care with certainty, the act of part performance should also be part of the contract.
5. The vendor in pursuance of the contract should have put the purchaser in possession of the property. The purchaser should have taken the possession and if already in possession shall continue to be in possession.
6. The purchaser has done some act like payment of consideration in pursuance of the contract or willing to perform his part of contract.

Whether the equitable right of the purchaser is enforceable against third party?

The equitable right is available only against the seller or anybody claiming under him. It is not enforceable against party who has purchased the property for consideration and who has no knowledge of contract or act of part performance.

Whether the act of part performance applies to gifts?

The applicability of part performance has two important ingredients, the existence of written contract and payment of consideration.  The transfer should be a transfer for consideration.

In case of gifts there is neither sale contract nor consideration.  The essence of the gift is transfer of property without consideration. As such the doctrine of part performance is not applicable to gifts.

What are the joint liabilities?

When two or more persons promise jointly to perform or to do something for a consideration, it is liability of all such persons who promised to perform or to do something. Such contractual obligations of the promises are joint liabilities, which are governed by ‘Indian Contract Act, 1872’. We come across many such contracts in purchase, sale of the immovable properties and construction sector and also in administration of partnership assets. The person who makes promise is promisor and to whom the promise made is promisee.

How joint liabilities devolve on the death of any one of the joint promisor?

The Section 42 of ‘the Indian Contract Act’ deals with this situation. It does not make any distinction between joint promises and several promises. According to the said section in the absence of any contrary in the contract, all the persons who made promise during their joint lives; after the death of any of the promisor, legal heirs / representative of deceased promisor along with surviving promisors; after the death of the last surviving promisor, the legal heirs, representatives of all the promisors, are bound to fulfill the promise.

But if the contract provides for any contrary intension the liability devolves according to the contract.

Can a promisee enforce the contract on any one of the promisor?

The promisee may enforce the contract against any of promisor in case of joint promise made by two or more persons, if the terms of contract do not provide any contrary intention.

However, each of the joint promisors has a right against other promisors. They may compel the other promisors to contribute equally or as provided in the contract for performance of contract.

In case of any of the joint promisors defaults in contributing towards performance, the remaining joint promisors must bear the loss arising from such default in equal shares.

The section 43 of Indian Contract Act makes it very clear; In case the surety makes payment on behalf of the principal, the surety is entitled to recover the same from the principal.

The provision of section 43 applies where two or more persons have made a joint promise. But it does not apply in case where two or more persons have become jointly interested by inheritance in a contract made by a single person. When a mortgage was executed by a single mortgagor, the mortgagee suing four out of five heirs is entitled to recover only four-fifth of the mortgaged amount from them. But if the mortgage is executed by several mortgagors then the mortgagee can enforce the entire liability against a part of mortgaged property. In case of joint family debts contracted by the managing member, are the debts due for all the members of joint family and all other joint family members are bound to repay the same but their liability is not personal but only to the extent of joint family assets.

What is situation in case the promisee releases one of the joint promisor?
In case of a joint promise made by two or more persons, the promisee may release any of joint promisors from performing the contract. But such release does release the other promisor from performing the contract and does not discharge the released the promisor of his liability, responsibility to other joint promisors.

How joint rights devolve?

This is quite a different situation from what we discussed earlier. Here a single person makes a promise to two or more persons jointly. The promisor is single person and promisees are more than one. All the joint promisees during their lifetime, on death of any of them, the legal heirs/representative of the deceased promisee become promisee with other surviving promisees and on death of the last surviving promisee the representatives of all promisees jointly acquire rights to enforce the contract.

Suppose in an agreement to sell, there is a clause that the vendor shall complete the sale transaction within three months of the date of agreement to sell, but fails to comply with this requirement.  Whether the agreement would become void and unenforceable?

Non-compliance of a clause in the agreement to sell would not make the agreement void.  The vendor has legal remedy to open him upto three years from the date of such a lapse.

What are the stamp duty payable in Karnataka for registration of an agreement to sell and the construction agreement?

The stamp duty payable for agreement to sell is Rs. 200/- when no possession of the property is handed over to the purchaser.  Similarly, the stamp duty payable for construction agreement is Rs. 50/-.

When the doctrine of part performance is not available?

When the person who desires to invoke the doctrine of part performance is not the signatory to the agreement or the consent party nor the recitals show that the agreement was entered into with the consent of such person, he cannot seek protection under the doctrine of part performance since there is no privity of contract between the parties.

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Monday, 22 June 2015

PERSONS EXEMPTED TO APPEAR FOR REGISTRATION


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Indian Registration Act 1908 has mandated that who should present the document for registration personally. The executant of a document or any person claiming under such document or representative or assignee of such executant or duly authorised power of attorney holder has to present the document for registration. These are detailed in sections 32 and 33 of the Act. Karnataka Registration Rules stipulates the document shall be presented for registration to the registering officer and not to a clerk or peon. In the ordinary course, the registration or deposit of documents has to be made only at the designated office.

The Act also provides for exemption of certain people from personal appearance and presents the document for registration.

Section 31 of the Act gives power to the registering officer under special circumstances to attend the residence of any person  desiring to present a  document   for registration or to deposit a will and accept for registration of such document or deposit of will.

Section 38 of the Act lists the category of persons who are exempted from appearance at registration office to present the document for registration. 

1) Any person who is bodily infirm because of illness or age and cannot attend the office without the risk or inconvenience, 
2) any person in jail under civil or criminal process or 
3) persons who are exempt by law from personal appearance in court are exempted from personal appearance or through their agents. 

Persons who are exempted from personal appear-ance in court as per Civil Procedure Code are (1) Women who according to the customs and manner of the country ought not to be compelled to appear in public; persons of rank specially exempted by the government. In such cases the registering officer shall personally go to the house of such person or the jail where the person is confined and examine him or may appoint a person to visit and examine such person.


Karnataka Registration Rules 1965 has formulated procedure for attendance of the registering officer at Private residence. The relevant rules are detailed in chapter 10 and under Rule Nos. 56 to 32. Any application for attendance at private residence shall be in writing and has to be signed by the person who requests the attendance at his residence. Such letter may be presented by any person to the registering officer. The request has to be complied with as early as possible. If such attendance at private residence disturbs the regular routine of the office or requires closure of office and if the case does not fall under section 31 of the Indian Registration Act, a commission may be issued, which means another person other than the registering officer may be requested to attend the private residence and complete the registration formalities. The attendance of sub-registrar at private residence or issuing commission has to be reported to the registrar within 24 hours. The Sub-registrar shall not proceed out of his sub district for this purpose, but registrar may attend the private residence situated in his district though it may not be situated within the sub district under his immediate charge.

The commissioner appointed to attend the private residence will examine the witness and persons to give evidence and the registering officer will examine the commissioner personally in his office connected with discharge of his commission and voluntary nature of admission of execution.

During the course of attendance if the registering authority has to record the admission or execution of persons not exempted from personal appearance in respect of the same document executed by a person exempted from personal appearance, the registering authority may comply with the request provided attendance fee is levied.

Section 88 of the Act refers to documents, which are executed by government officers or certain public functionaries who are exempted from personal appearance.

Any officer of the government, any administrator general, official trustee or official assignee, the sheriff, receiver or registrar of High Court, any holder of such other public office as is notified in the official Gazette of the state government are exempt from personal appearance or through their agents in connection with registration of any instrument executed by them or any document executed in their favour in their official capacity. They are also exempted from signing the document for admitting the execution as required under section 58 of the Act.

When documents are forwarded by government officer with a covering letter stating that documents executed by him be registered, the covering letter will be sufficient to satisfy the genuineness of the signature of the executant. If such document is presented by a private party, who is also a party to the document, the registering authority will satisfy as to the genuineness of the signature by a brief enquiry. The fact of exemption from personal appearance and presentation of the document by covering letter will be endorsed.

Certain category of documents like copies of orders, certificates and instruments need not be presented for registration but may be sent to the registering office for filing as per section 89 of the Act. In the following cases, copies have to be forwarded to the Jurisdictional registering officer under whose jurisdiction the immov¬able property in question is situated:

(A)  Every officer  granting a loan under Land Improvement Loans Act 1883. Every court granting a certificate of sale of immovable property under Civil Procedure Code, 1908.

(B )In case of loans under Land Improvement Loans Act 1883, details of the land to be granted as collateral security.

(C) Every officer granting loan under Agriculturists Loan Act 1884 has to  forward, a copy of the document whereby the immovable property is mortgaged to secure repayment of the loan and a copy of such order.

(D) Every Revenue officer, who grants a certificate of sale to the purchase of immovable property sold in public auction.

The registering officer will file the copies of such orders, certificates, and instruments in book No. 1. The concerned officers need not appear in person at registration office.

State government has made rules as to the mode of making copies and manner of filing copies.

List of Persons exempted from Personal appearance for registration as per section 88(1) of the Registration Act, 1908 and other connected Acts:

1. Any officer of the Government.
2. Any Administrator General, Official trustee or official Assignee.
3. The Shariff, Receiver or Registrar of High Court.

4. The holder for the being of such other public office as may be specified in a Notification in the official Gazette issued on that behalf by the state Govt.

5. As per section 39 of Karnataka State Co-operative Societies Act, 1959, any member of the Committee, Secretary or other officer of Co-operative Department or Society.

6. Managing Director and Vice Chairman of the Mysore Iron and Steel Limited Bhadravathi (No. RD 9 ERG 65 Dt 24.03.1965)

7. Comptroller of University of  Agricultural Sciences, Bangalore (No. RD 41 EST 72 dt. 28.09.1974)

8. Executive Officer, TTD Tirupathi is an officer of the Govt.  Hence he is exempted from personal appearance under section 88(1) (a).  Clarification issued by Inspector General of Registration and Commissioner of stamps (No.RGN/104/73/74 dt. 25.06.1974.)

9. The Regional Provident Fund Commissioner of Karnataka (No.RD 204 EST 78 dated 19th Jan. 1979). 

10. Managing Director, Karnataka Scheduled caste and Scheduled Tribes Development Corporation, Bangalore (No.RD 137 EST 79 dt. 19.03.1979) 
11. The Chairman or Secretary, City Improvement Trust Board, Mysore and all Executive Engineers (Electrical) of all Divisions of KEB, Bangalore (No. RD 204 EST 78 dated 19th Jan. 1979)

12. The Chairman, Improvement Trust Board, Davangere (NO. 129 RD 115 EST 79 dated 19.06.1979)

13. Divisional  Manger, LIC of India.

14. Chairman, New Mangalore Port Trust, Panambur (No. RD 115 EST 80 dt. 14-7-80)

15. Manager of Nationalised Banks as the holder of public offices (No. RD 50, EST 80 dt. 11.8.82).

16. Chairman and /or Managing Director, Karnataka Agro Industries Corporation Limited, Hebbal, Bangalore (No. RD 69 EST 82 dt.4-9-82).

17. Chairman of all the Improvement Trust Boards constituted in the state (No. RD 69 EST 82 dt.4-9-82).

18. Managing Director, Karnataka Power Corporation, Bangalore (No. RD 260 EST 80 dt.4-9-82).

19. Registrar of Indian Institute of Science, Bangalore (No. RD 113 ESR 82 dt. 23.6.84)

20. District Managers, Food Corporation of India (No. RD 171, EST 80 dt. 21.6.1985).

21. Chief Administrative Officer, National Institute of Mental Health and Neuro Science, Bangalore (No. RD 271, ESR 86 dt 17.12.86)

22. Presidents of all the Municipality and Town Municipalities in the state of Karnataka for the purpose of the said sub-section.  (No. RD 271 ESR 85 Dt. 13-10-1986).

23. Administrative Officer, Regional College of Education, Mysore in connection with the execution of registration of Mortgage Deeds by the employees of Regional college of Education, Mysore while drawing advances like house building, advances etc.  (No.RD 104 ESR 87 dt. 8-12-1987).

24. Managers of the Regional Rural Banks (No.RD 42 MUNOSA 95 dated 18.7.1995).

25. Following Officers of the K.I.A.D.B. as the holders of public offices for the purpose of the said Section:
i) Secretary
ii) Law Officer
iii) All the Assistant Secretaries
iv) All the Deputy Development Officers (No. RD 357 MUNOMU 95 dated 24-8-1995).

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Saturday, 20 June 2015

Consumer Disputes Redressal Forum


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The Consumer Protection Act 1986 provides three tier adjudication of disputes between the complainant and the opposite party. These adjudication bodies are 

(1) District Forum, 
(2) State Commission and 
(3) National Commission. 

Hierarchy-wise District Forum is the lowest redressal agency. The District Forum consists of three members: the President and two members. The President will be a judicial member and members are non-judicial persons, who have knowledge and experience of minimum ten years dealing with the problems relating to economics, law, commerce, accountancy, industry, public affairs or administration with a bachelor degree from a recognized university and who is not below the age of35 years. One of the members shall be a woman. They must be persons of ability, integrity and standing.

Jurisdiction

The District Forum has powers to entertain complaints, where the value of goods, services or compensation claimed does not exceed Rs.Twenty lakhs. Apart from fmancial jurisdiction, the District Forum has territorial jurisdiction. A complaint may be lodged in District Forum within the local limits of whose jurisdiction the opposite party and if there are more than one opposite party, each of the opposite party normally resides or carries on business or has a branch office or personally works for gain at the time of institution of complaint, or any of the opposite parties where there are more than one, normally resides or carries on business, or has a branch office or personally works for gain. Permission of the District Forum is necessary or alternatively the other opposite parties who do not reside in the jurisdiction of the District Forum have to agree for such filing of complaint. Even the complaint may be filed in District Forum in whose jurisdiction is the whole or part of cause of action arises.

Limitation

The limitation period is two years from the date on which cause of action has arisen. The Forum may permit filing of the complaint even after the limitation period of two years, if the complainant satisfies the forum about the sufficient reasons / causes for delay in filing the complaint. However, the forum has to record reasons for having waived the limiation period. Consumer Protection Act 1986 has prescribed certain procedures for filing a complaint with the District forum. 

The complaint shall be within the pecuniary and territorial jurisdiction and shall be within the limitation period. The complaints along with the supporting documents shall be filed before the District forum, in addition to as many copies as the number of respondents.

The District Forum entertains complaints, which are related to goods sold, or agreed to be sold or delivered or to any services provided or agreed to be provided. The complainant; i.e. the person who files complaint must be a consumer to whom goods are sold or agreed to be sold or delivered, any services provided or agreed to be provided. Any recognized consumer association may also prefer a complaint. It is not necessary that the consumer who has actually suffered should be a member of such an association. In case there are more than one consumer, where all the consumers have common interest, anyone may file a complaint with the permission of forum. The Central or State Government may file a complaint in its individual capacity or as a representative of consumer interests in general. Each and every complaint to the District Forum shall have proof for having paid the prescribed fee.

Depending upon the merits of the case, the forum may accept the complaint or reject it. But no complaint will be rejected unless an opportunity is provided to the complainant to present his case. The District Forum has to decide about the admissibility of the complaint within twenty-one days of receipt of complaint. When once the complaint is admitted by the District Forum, it shall not be transferred to any other court, tribunal or authority set-up under any law, which is in force for the time being.

After admission of complaint, the district forum forwards the copy of the admitted complaint to the opposite party, within twenty-one days of admission of complaint, for submission of his version of the case. The opposite party has to submit his version of the case within thirty days. This period may be extended by another fifteen days at the discretion of the forum.

The opposite party may deny or dispute the allegations contained in the complaint or may even ignore the complaint. If necessary the District forum may arrange for analysis of disputed goods. In such cases, the complainant who has opted for analysis has to deposit the fees as specified with the forum for payment to the appropriate laboratory. The disputed goods have to be tested and analyzed only at a recognized appropriate laboratory. The forum shall seal the sample of the disputed goods, authenticate and forward to the appropriate laboratory with the fees directing to analyse the goods to find out whether the goods suffer from any defects as alleged in the complaint or any other defect and report to the forum. The report from the laboratory shall be made available to the forum within forty-five days of reference. This time limit may be extended at the discretion of the forum. On receipt of the report, the District forum forwards a copy of the report along with its remarks to the opposite party. If any of the parties disputes the finding of appropriate laboratory or the procedure followed for analysis, such objections have to be filed in writing with the forum.

Thereafter, after providing reasonable opportunity to the complainant and opposite party and based on the evidence brought before it is the forum shall settle the consumer dispute. The forum may also pass Ex-parte orders based on the evidence by the complainant, if the opposite party fails to take any action or to represent his case. If the complainant fails to appear on the date of hearing before the forum, the complaint may be dismissed or decided on merits.

Time limit for disposalSections 13, 14 & 15 of the consumer Protection Act 1986, deal with procedure and is to be followed by the District Forum. The Act has laid down that every complaint shall be heard as expeditiously as possible and every effort should be made to decide the complaint within three months from the date of receipt of notice by the opposite party. In case the commodity which is the subject matter of complaint requires analysis or testing in an appropriate laboratory, the case shall be decided within five months from the date of receipt of notice by the opposite party. Generally the Forum does not permit any adjournments unless sufficient reason is shown and the Forum has to record in writing the reasons for any adjournment given. If the case cannot be decided within the prescribed time frame the Forum has to record in writing, the reasons for such delay. The Act also provides for making orders as to the costs incurred by the adjournments as per the regulation made under the Act. If the cases are complicated requiring recording of evidence of experts, the complainant may be ordered to approach civil court (Indian Medical Association vs. v.P. Shantha (1995) 6 SCC 651. It has been held that the District Forum has no jurisdiction or power to pass any interim orders pending disposal of complaint. (Gulzarilal Agrwal vs Account Officer (1996) 10 SCC 590) and (Morgan Stanley ) vs. Kartica Das. (1994) 4 SCC 225-(1994) 2 CPJ 7(SC)

Powers of the District Forum

As per the Act, the District Forum has the same powers as that of a civil court under civil procedure code 1908 on following matters. 

1. Summoning and enforcing attendance of any defendant or witness and examining the witness on oath. 
2. The discovery and production of any document or other material object producible as evidence. 
3. Receiving evidence on affidavits. 
4. Calling for the concerned analysis or test reports from the appropriate authority or any other relevant source. 
5. Issuing of any commission for examination of witness.

Friday, 19 June 2015

Need for a Real Estate Act for Regulation and Development


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The promoter regulation acts of various States attempted to deal with what could be considered as excesses by the real estate sector i.e., 
(i) collecting huge amounts even prior to the approval of construction proposals, 
(ii) creating a mortgage on the property before or after entering into an agreement of sale with third parties, without letting them know of the mortgage, 
(iii) not delivering apartments in time, 
(iv) changing approved plans midway, 
(v) not transferring apartments to individual flat purchasers or to housing societies, with the fond hope that the FAR / FSI in the area would increase and they could benefit, 
(vi) collecting huge maintenance fees and siphoning it off through inflated charges, 
(vii) issuing misleading advertisements, etc. 

All these and other issues ought to be taken care of by the Law,and cannot be left to market forces, since the hard- earned lifetime savings of citizens are involved. Despite some States bringing laws, there is no denying that the Real Estate sector is still one of the most unregulated, in so far as relations between the developer / promoter / builder and the purchaser are concerned. 

As such, there is an imperative need for a model Real Estate ( Regulation and Development ) Act.

The Central Government had announced a Model Real Estate (Regulation and Development) Act, which was put up for discussion before it was brought before Parliament. It envisages regulatory and appellate authorities to regulate, control and promote development by construction, sale, transfer and management of residential apartments. Though the model legislation is a welcome move to bring discipline to the sector, the proposed legislation is not binding on States, which have to enact separate legislations. 

The regulatory authority proposed is in addition to existing authorities under different local, planning, revenue and tax establishments. There are dozens of licenses and approvals to be obtained prior to starting development and, taking into consideration the way our systems work, the new proposed authorities would only delay approvals, add to the cost and create additional structures that would only set the clock back.

This is the era of liberalization. The proposed legislation will only take the real estate industry back to the license raj era. Creation of additional authorities has always led to more corruption. Exorbitant demands by authorities invariably lead to delays and cost escalation, ultimately borne by the purchaser. Power to such authorities has traditionally led to its misuse, and no system to deal with this menace has yet been discovered. Especially in the Real Estate sector, promoters ought to be made responsible and liable, so that the excesses complained of by the citizens and investors are taken care of by Law administered through Courts.

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