As we know there are number of Property Brokers who deals in property. Resale flat means flat is being sold by the original buyer of the said flat. In short Flat which is purchased by a First buyer from Builder who sold it to other person its called Resale of Flat.
Now we discuss about the Legal procedure and documentation which is to be checked before buying such flats. Following are the documents which is essential and need to be checked before buying such resale flats:
- The property card or title documents of the Land.
- The title deed i.e. previous Deed of Conveyance.
- The tax paid receipts till date.
- The Master Plan of the property or the blue print/sturcture
- The society membership documents or Share Certificate.
- Previous loan related documents or statement
- Commencement letter issued to the builder
- Completion certificate issued to the builder
- Occupation Certificate
- Possession receipt
- Electricity bills
- Maintenance of the Society paid till date
As we know there are number of cases filed by the old or dependent old parents sought for the maintenance from their sons or daughters. Our new Generation forgot about our culture and respect towards our parents. They only using their parents as source of funds but when the said source unable to giving funds then the same Sons or Daughters will throw out their parents from the house or harass them or send them in Old age homes.
Basically old age homes are one of the serious Diseases of our Society. In Legal point of view our Judicial System is trying to sought out the such problems and try to giving justice to all affect parents.
Under Section 125 of The Code of Criminal Procedure which states that:
Order for Maintenance of Wives, Children and Parents
Agricultural:- “agriculture” includes horticulture, poultry farming, the rising of crops, fruits, vegetables, flowers, grass or trees of any kind, breeding of livestock including cattle, horses, donkeys, mules, pigs, breeding of fish and keeping of bees, the use of land for grazing, cattle and for any purpose which is ancillary to its cultivation or other agricultural purpose.
Classification of agricultural lands as per its use for cultivation:-
- Warkas land
- Jirayat land (Dry crop)
- Bagayat or irrigated land
- Rice land
- The ‘warkas’ land is the land of the poor productivity. This land is used by the farmer during the monsoon to grow ‘low-grade’ millets such as nachani and warai. Its cultivation involved burning of the vegetation on the land, (rab manure) preparing the soil with a pick and sowing by hand.
- Jirayat land is the land where cultivation is depends upon annual rainfall. The jirayat land is used for seasonal crops, kharif and rabi. The agricultural sessions of kharif crops starts from June and agricultural sessions of rabi crops are starts from September-October.
- Bagayat or irrigated land:-.Cultivation of these lands is mainly dependent upon sources of water other than rain. Sources of water can be well, bandharas and supply from Government’s irrigation department.
- Rice land:-In coastal and heavy rainfall area where main crop is rice, lands are classified into to two categories namely; rice land and warkas land.
Restriction on transfer of Agricultural Lands, mangaement of uncultivated lands and acquisition of estate and lands:-
Bombay tenancy and agricultural land Act, 1948
Section 63 Transfer to Non Agriculturist barred:-
- No sale (including sale in execution of a decree of a Civil Court or for recover of arrears of land revenue or for sums recoverable as arrears of land revenue), gift, exchange or lease of any land or interest therein, or
- No mortgage of any land or interest therein, in which the possession of the mortgaged property is delivered to the mortgagee
shall be valid in favour of a person who is not an agriculturist [or who being an agriculturist [will after such sale, gift, exchange, lease or mortgage, holds land exceeding the celieng limit] determined under the Maharashtra Agricultural Lands (Celing on Holdings) Acts, 1961 such person shall not be granted, where land is being sold to a person who is not an agriculturist for agricultural purpose, if the annual income of such person is Rs. 12,000 or more] or who is not an agricultutral labour.
Provided that the Collector or an officer authorised by the state government in this behalf may grant permission for such sale, gift, exchange lease or mortgage in such condition as may be pescribed.
Thus, according to this section if there is a default in payment and the property (given as security) has to be attached then the same will not be possible or the prior permission of the collector or the authorised officer may be required.
If attachment is allowed then the same will have to be converted into Non-Agricultural befor putting it into any other use;
Section 42 of the Maharashtra Land Revenue Code, 1966 reads as follows:-
- Permission for non-agricultural use: – (1) No land used for agriculture shall be used for any non-agricultural purpose; and no land assessed for one non-agricultural purpose shall be used for any other non-agricultural purpose or for the same non-agricultural purpose but in relaxation of any of the conditions imposed at the time of the grant or permission for non-agricultural purpose, except with the permission of the Collector.
- Notwithstanding anything contained in sub-section (1), no such permission shall be necessary for conversion of use of any agricultural land for the personal bona fide residential purpose in non-urban area, excluding:-
- the area mentioned in clause (2) of the Explanation to section 47A, as a peripheral area of the Municipal Corporation or the Municipal Council;
- the areas falling within the control line of the National Highways, State Highways, District Roads or Village Roads;
- the areas notified as the Eco-sensitive Zone by the Government of India)
As per Section 63 1A the permission of the District Collector is not required for purchasing land admeasuring less than 10 hectares for bonafied industrial purpose. However, it is necessary to inform the concerned Revenue Authorities within 30 days regarding commencement of use of the land for industrial purpose and the Collector levies appropriate N.A. assessment charges for the land for the change in end use of the land.
The powers to grant permission for purchasing agricultural land, exceeding 10 Ha for Bonafide industrial purpose, are conferred to Development Commissioner (Industries). The promoters of an industrial undertaking have to apply for the permission in the prescribed
- Application Form for Land Purchase,
- BTAL document requirement from UDD,
- Application Form for BTAL permission more than 10 Ha. Along with the stipulated accompaniments.
‘Bonafide Industrial Use’ under the Bombay Tenancy and Agricultural lands Act, 1948 implies the activity of manufacture, preservation or processing of goods, or any handicraft, industrial business or enterprises carried on by any person, including construction of industrial building used for the manufacturing process or purpose, or power projects and ancillary industrial usage like research and development. Godown canteen, office building of the industry concerned, or providing housing accommodation to the workers of the industry concern, or establishment of an industrial estate including Co-operative Industrial Estate or service industry, cottage industry, gramodyog units or gramodyog vasahat.
It is necessary that the land should be in the industrial zone as per the draft / final Regional Plan of the area and should not be under any other reservation where no such Regional Plan or a Scheme exists. The Committee under chairmanship of Development Commissioner (Industries) scrutinizes the application for reasonableness requirement of land considering the project parameters and accordingly Development Commissioner (Industries) grants permission to purchase the land subject to the following conditions:
- The land to be purchased shall be put to industrial use within a period of five years from the date of purchase failing which the person from whom the land is purchased shall have right to repurchase the land at the price for which it was originally sold.
- Where the land being sold is owned by a person belonging to the Scheduled Tribe, such sale of land shall be subject to the provisions of Section 36 and 36 A of Maharashtra Land Revenue Code 1966 and of the Maharashtra Restoration of Lands to Scheduled Tribe Act 1974.
- If the land being purchased is held by occupant Class-II, the purchaser shall pay to the Collector, an amount equal to two percent of the purchase price within one month of the execution of the sale deed irrespective of the tenure of such land. This payment shall be in lieu of any nazarana or such other charges which may otherwise be payable, by such occupant Class-II by or under the provisions of the Maharashtra Land Revenue Code 1966. In addition, the purchaser of such land shall pay the non agricultural assessment as may be levied by the Collector under Section 67 and 115 of the Maharashtra Land Revenue Code 1966.
- The person purchasing the land under Sub Section 63 (I) and for conversion there of for bonafide industrial use shall give intimation of the date on which the change of user of the land commenced, within thirty days from such date to the Collector of the District.
- If the person fails to inform the Collector within the period specified in Sub Section 63 I A III, he shall be liable to pay in addition to the non agricultural assessment which may be leviable by or under the provisions of the Maharashtra Land Revenue Code1966. Such penalty not exceeding twenty times the amount of non agricultural assessment as the Collector may fix subject to the rules, if any made by the State Govt. in this behalf.
- The applicant will have to comply with the provisions of all other Acts/Rules/Notifications issued from time to time by State Govt./Central Govt. in this behalf.
The permission is granted within one month from the date of receipt of the application alongwith the required accompaniments, complete in all respects.
Ambit of SARFAESI Act, 2002 in case of Assignment of Debt by NBFC to other Banks and Financial Institutions.
Kotak Mahindra Bank Ltd vs Trupti Sanjay Mehta And 8 Ors.
The Hon’ble Bombay High Court was pass the judgement on 16th July, 2015 under WP/722/2015.
Bench – V.M. Kanade.
The question which falls for consideration before the Hon’ble High Court is whether the Bank to whom the debt has been assigned by the Non-Banking Financial Institution (NBFC) is entitled to adopt proceedings under the SARFAESI Act, 2002?
Writ Petition was filed under Article 226 of the Constitution of India for the relief that to hold and state the status of the assignor, if the assignee of the Debt along with its underlying security is a bank or Financial institution it is open to such a bank or financial institution to adopt steps under said writ and the RDDB Act or SARFAESI or Civil Laws.
In the case where a Petitioner is a Banking Co. registered under the Companies Act who signed the Deed of Assignment with Respondent no.3 i.e. NBFC on dated July 18, 2012 for the debt which was secured by the Flat (Mortgaged Property). The owner of said property is Respondent no.1 & 2 but the NBFC offered the loan to Respondent no 4 on security of the said property. When Res.no.4 committed default for payment of loan amt. NBFC invoke the arbitration clause in the agreement and finally award passed in favour of NBFC and directing Res.no.4 to pay sum amt. with interest. After that NBFC transfer the said loan by executing the assignment deed in favour of Petitioner.
After execution of deed of assignment Petitioner stared taking steps for realization of loan amt and invoke the provision of SARFAESI Act, 2002. Notice under Section 13(2) of SARFAESI Act, 2002 was issued by Petitioner to Res.no.4 but they didn’t get any reply from Res.no.4. The absence of reply finally Petitioner filed an application under Section 14 of the SARFAESI Act, 2002 for taking possession of the said property. At the time of taking possession Petitioner found that Res.no.1 have the possession of the said property.
In the said case Res.no.1 & 2 claiming the ownership of said mortgaged property and challenging the action by filing Securitization application before DRT. Principal contention of the Res.no.1&2 were Res.3 is a NBFC was not entitled to invoke the provision of SARFAESI Act, 2002 and secondly its assignee i.e. Petitioner. In short in case where NBFC assign the loan to any bank then in that case bank is not comes under the ambit of the SARFAESI Act.
As per the Securitization Application filed by Res.no.1&2 Presiding Officer DRT-II, Mumbai passed the judgement that Res.no.3 is a NBFC which is not comes under the ambit of Financial Institution under SARFAESI Act, and therefore Petitioner despite the Bank, was not entitled to exercise the any powers or authority as a Bank under provision of said Act and also order to Petitioner to handover the possession of the said property to Res.no.1&2.
Against the said order, Petitioner filed an appeal but under the Provision of SARFAESI Act, the said appeal was dismissed and restored the possession of the said property towards Res.no.1&2.
There are some important circulars which invite attention of Prudent.-
RBI Guidelines dated July 13, 2005 in that virtue of the said Notification, permitted assignment of debt with or without security in the course of banking activity and, therefore, such an assignment was legally permissible and, therefore, enforceable.
The object of SARFAESI Act,2002 and various provisions of the said Act as well mechanism which has been provided under said Act clearly disclose that this mechanism which is non-adjudicatory in nature and designed only for the benefit of the banks and financial institutions and not for the categories such as Non-Banking Financial Institutions. Therefore it’s clear that NBFC is not cover under ambit of said Act. On the basis on said provision the application made under section 13 of said Act is not enforceable.
It’s important to note that Hon’ble court held that guidelines issued by RBI dated July 13, 2005 have statutory force and not ultra-virus the Banking Regulations Act, 1949 and therefore held that assignment of Debts of NBFC by one bank to other bank is permissible under 1949 Act and not violate section 130 of Transfer of Property Act, 1882
Result – Writ Petition is dismissed.
In short as per the judgement, assignment of loan from NBFC to Bank is not cover under
ambit of SARFAESI Act, 2002.
Theory of Punishment in The Maharashtra Housing Development & Regulation Act, 2012 and Real Estate Regulation Bill
The Theory of Punishments in the Maharashtra Housing Development & Regulation Act 2012 [MHDRA], & Real Estate Regulation Bill [RERA]
1. There are certain provisions in REAL ESTATE REGULATION BILL dealing with punishments which are quoted as under
under section 3
|51. (1) If any promoter contravenes the provisions of section 3, he shall be liable to a penalty which may extend up to ten per cent. of the estimated cost of the real estate project as determined by the Authority.
(2) If any promoter does not comply with the orders, decisions or directions
issued under sub-section (1) or continues to violate the provisions of section 3, he shall be punishable with imprisonment for a term which may extend up to three yearsor with fine which may extend to a further ten per cent. of the estimated cost of the real estate project, or with both.
of section 4.
|52. If any promoter knowingly provides false information or contravenes the provisions of section 4, he shall be liable to a penalty which may extend up to five per cent. of the estimated cost of the real estate project, as determined by the Authority.|
|53. If any promoter contravenes any other provisions of this Act, other than that provided under section 3 or section 4, or the rules or the regulations made thereunder, he shall be liable to a penalty which may extend up to five per cent. of the estimated cost of the real estate project as determined by the Authority.|
9 and 10.
|54. If any real estate agent wilfully fails to comply with or contravenes the provisions of section 9 or section 10, he shall be liable to a penalty of ten thousand rupees for every day during which such default continues, which may cumulatively extend up to five per cent. Of the cost of plot, apartment or building, as the case may be, of the real estate project, for which the sale or purchase has been facilitated as determined by the Authority|
to comply with
|55. If any promoter, who willfully fails to comply with, or contravenes any of the orders or directions of the Authority, he shall be liable to a penalty for every day during which such default continues, which may cumulatively extend up tofive per cent, of the estimated cost of the real estate project as determined by the Authority.|
with orders of
|56. If any promoter, who wilfully fails to comply with, or contravenes any of the orders, decisions or directions of the Appellate Tribunal, he shall be liable to a penalty for every day during which such default continues, which may cumulatively extend up to ten per cent. of the estimated costof the real estate project as determined by the Appellate Tribunal.|
to comply with
|57. If any ALLOTTEE, who wilfully fails to comply with, or contravenes any of the orders, decisions or directions of the Authority he shall be liable to a penalty for the period during which such default continues, which may cumulatively extend up to five per cent. of the plot, apartment or building cost, as the case may be, as determined by the Authority|
with orders of
|58. If any Allottee, who wilfully fails to comply with, or contravenes any of the orders or directions of the Appellate Tribunal, as the case may be, he shall be liable to a penalty for the period during which such default continues, which may cumulatively extend up to ten per cent. of the plot, apartment or building cost, as the case may be, as determined by the Appellate Tribunal.|
|60. Notwithstanding anything contained in the Code of Criminal Procedure, 1973, if any PROMOTER is punished with imprisonment under section 51 of this Act may, the punishment may either before or after the institution of the prosecution, be compounded by the court on such terms and conditions and on payment of such sums as may be prescribed:
Provided that the sum prescribed shall not, in any case, exceed the maximum amount of the fine which may be imposed for the offence so compounded.
2. The MHRDA also contains provisions of punishment as under.
44. Whoever fails to comply with or contravenes the provisions of section 4, shall, upon the order by the Housing Regulatory Authority in that regard, be liable to pay the penalty which may extend to rupees one thousand per day of default.
45. Whoever, without reasonable cause, fails to comply with, or contravenes, the provisionsof sections 6, 16 or 17 shall, upon the order by the Housing Regulatory Authority in that regard, be liable to pay the penalty of rupees ten thousand for each day during which such noncompliance continues, or rupees fifty lakhs, whichever is lower.
46. Any allottee, flat or unit purchaser or organization, who fails to comply with, or contravenes, the provisions of the agreement for sale executed by him with the promoter for purchase of flat, including nonpayment of any amounts or charges in respect thereof, shall, upon the order by the Housing Regulatory Authority in that regard, be liable to pay the penalty which may extend to rupees ten thousand or one per cent. of the sale price of the property specified in such agreement, whichever is higher.
47. Any person, who willfully fails to comply with the orders or directions of the Housing Regulatory Authority or the Housing Appellate Tribunal, as the case may be, shall, upon the order by the Housing Regulatory Authority, or the Housing Appellate Tribunal, as the case may be, in that regard, be liable to the imprisonment for a term which may extend to three years or penalty which may extend to rupees ten lakhs or with both.
48. Any person, other than the promoter, who, without reasonable cause, fails to comply with, or contravenes, any other provisions of this Act or of any rules made thereunder, ordoes not pay the penalty imposed on him by the Housing Regulatory Authority shall, if no other penalty is expressly provided therefor, upon the order by the Housing Regulatory Authority in that regard, be liable to pay the penalty which may extend to rupees fifty thousand.
49. (1) Any promoter who, without reasonable excuse fails to comply with, or contravenes the provisions of section 9, section 12, section 14, section 18 or section 19, shall, upon the order by the Housing Regulatory Authority in that regard, be liable to pay the penalty which may extend to rupees one crore.
(2) Any promoter who, without reasonable excuse, fails to comply with or, contravenes, any other provisions of this Act or of any rule made there under shall, if no other penalty is expressly provided for such contravention, upon the order by the Housing Regulatory Authority in that regard, be liable to pay the penalty which may extend to rupees ten lakhs.
3. Thus seen there are very benevolent provisions made by the state/s on punishment, which leads to bring to assistance & necessity to understand how criminology deals with such situations.
4. Before that it would not be out of place to say that, arrogance is way-high in our country, supplemented by ego, in each individual. And when it comes to dominating position and dealing with uninformed people of their rights, there is tendency to abuse causing wrongful gains, and this is rampant.
5. Fines, merely afford opportunity to recover from the depletion, and to prepare for extortion of money lost. They are, apart of the extortionist, no punishment to one who has become insensible to statutory compliance and insensitive that they are invading other persons rights.
6. Fines as such are not penal but are in the nature to serve still further to reinforce the warning and nothing more. Thus seen a warning in the form of fine is not at all the punishment. Fine is maximum a temporary forfeiture of product not resource to it.
7. Fines should not be leveled against those motivated by thievery, cheating, forgers, extortionists, and they have to treated as societal felons.
8. The intendment of having punishment, is deterrence, warn people of not to breach a law, to enforce the fulfillment of obligation of law. A fine fall into category of pecuniary punishment. IF fine is to act as deterrence it has to be heavy expropriatory. If it cannot be deterrent it fall into category of tax only and supply of offences become frequent. Lets take for example – running traffic signals, if they are to be deterrent in proportion of the breach fines have to be optimally regulated and cannot be over or under. Next lets take example of a person who runs signal in his maruti car and a person in rolles royes. The fine may be same, but who is affected[educated of deterrence] the most? This brings the economics into play and the analysis is to be made on how much deep is he hurt by the fine. So also is there is possibility of culprit to redeem his pecuniary loss from the society. Functionally the punishment is where there is no redemption of loss say for example loss of time served, and whatever is the sentence, it enlivens his life and marks a lable on his life so that he is himself made aware of his wrong and so are others, not to breach the law.
9. If the offense is against the State or social order, the measure of social damage should be fixed and collected by the law. Fines collected by the State should constitute a special fund for the payment of Indemnities to individuals, and the expense of detecting crime. Only such penalty receives the approval of the popular sense of justice, restrains the well-to-do from violation of law by the fear of having to make strict restitution, and the penniless by the dread of compulsory labor for the benefit of others.
10. What if the business entity is capable of manipulating the system to get the slightest penalty?
11. If a retributive fine can be collected from the resources of the convict, it can still be imposed. But whether it will act as reformatory must be decided entirely on the character of offender, and can have no relation to the payment or working out of a fine. This also necessitates the separation of the penalties of fines from need of imprisonment.
12. It is funny that the outcome of non-observation of provisions of law under above enactments is direction to follow provisions, and not punishment. But on the contrary it is the order of HRA/CA/HAT which is to be observed failing which it carries monetary sanction or time served.
13. Infact if one observes closely, the intent of punishment is totally withdrawn from the provisions of law to order. Thus bring us away from Rule-of-Law to Rule-of-Order. This is very innovative method deployed by the concerned trustees-of-society, however bereft to our constitutional mandate of rule of law.
14.A 2000 study by Uri Gneezy and Aldo Rustichini, A Fine Is a Price, has shown that introducing a fine for a previously unfined behavior [provisioned for serving time] may increase, rather than decrease, the unwanted behavior. This happens as the fine replaces a previous set of moral or ethical norms, and if it is low enough, it is going to be easier to overcome than the non-monetary punishment. In other words, putting a price on something previously not on a market, changes its perception drastically, and on occasion it can change it contradictory to what a deterrence theory would predict. When one fixes price for a wrong, it becomes a perk to get away with the wrong by paying price, as everyone knows that paying a price is easier and price can be recovered. Fines are limited by the inability of the convict to pay. Thus the whole concept of making fines as punishment becomes meaningless, as without receipt of the fine the punishment is otiose.
15. In this line of thought – if price can be recovered/recoverable, can it be said that it is punishment for a particular offensive behavior?
16. Punishment require reciprocating the crime and its motives, and therefore the crime has to be optimally dealt with. The Legislature has to consider the utility of committing the crime and incentivize for abiding to the law.
17. If fine can act as deterrent as proposed in these legislations, then even murderers who construct under-quality structures, forgers, extortionists, cheaters, should be only fined, it will save the cost of jails and undertrials. And the order of the day would not be Rule-of-Law but Rule-of-Money.
18. There is no incentive to the consumer to bring the offender to justice as after all, it is the entity or state who is going to be benefited of the outcome. i.e. the entity is fined or not :: the state received fine or not. Thus seen its appears to be botched-up capitalist contract between the state and entity, with outward show of public interest.
19. While enacting a punitive legislation it is important that the state takes opinions of jurists, advocates, socialist, and settles actual decision of courts which have dealt with particular issue and the apparent unfairness to the consumers. One cannot but just speculate whether such exercise was done. Forget making of new law, the old laws which are constantly in contest, and judicially decided from time to time are also not consolidated and appropriate amendments made.
20. Crimes which are less serious in nature and punished with a fine apply to misdemeanors. In the United States, less serious offenses are punished primarily by fines. The more serious offenses are punished by a combination of conditional probation, imprisonment, fines etc.
21. Fines produce a gain to the offenders as it is equated as cost to offenders, aside from collection costs. So the social cost of fines is about zero, and equivalent to bank transfer.
22. Therefore the basic question is whether the state intends to wash out the crime or not and decide whether there is a Societal loss due to the crime. Then the state has to decide whether there is societal loss with punishment, and what punishment is proper. If there were no societal loss from punishments, as with fines, the elasticity of supply for grievance redressal would drop as the punishment becomes a commodity being factored itself by means of recovering the cost, than having any enforcement targets. This process mar the purpose of deterrence theory or any societal benefit. By fine no benefit is going to be received by society, and a net social loss would result. This may also tend towards societal approach to equally or more illegal means to enforce remedy of their grievance and which at times may escalate or go out of control. Civil Wars apart, if the state is ‘concerned’ state it should take into account the societal impact of its demeanor.
23. The next aspect which requires to be considered from economic analysis, it the players in the transaction. In this particular set, the players are flat purchaser, promoter and state. Here the promoter has absolute business interest, while flat purchaser in major part have no business/financial interest and are actual consumer of the product. This questions justification of how benefit of consumer protection act is excluded by these laws to such consumers. The third party is the state/s which is supposed to act, if not pro a party, at least as a neutral regulator.
24. Compared the relationship of consumer vis-à-vis business/financial interest, and when there is admitted fact by state, with litigation statistics, that there has been abuse by business/financial interest; the expectancy, strategy, effectiveness of mechanism for dealing against abuse has to be borne out. In this situation the consumer is most vulnerable and imposing of even Rs.100/- is heavy cost as it come from his pocket and he has not way to reinstate the cost, on the contrary imposing even crores of rupees on business interest, it would be factored in the cost of the product. Thus making the penal angel of the fine in law, economically circumvented. It is known fact that business entities charge the product, even with cost of their dog food. All sorts of taxes including the income tax of the business entity is factored in the product, and charged to the consumer. Therefore in this perspective the monetary punishment is laughable on business entities.
25. Next how the state is helped with it. These fines go to the state. They are not applied to compensate the victim to redeem his suffering. This is apparent from section 66 of RERA and draft general rules framed under MHRDA. Thus seen the state is gaining of crime, while the victim is left as sufferer devoid of remedy, and gets paper decree. Per contra the Civil, Consumer and Competition Foras actually give remedy and compensation. Thus to that extent the monetary punishment is anti-people and benefits the business entity and the state.
26. If one read the provisions of fines in these acts it will reveal that it is very cleverly drafted so that the trying of such matter don’t require judicial mind, [judges usually have, although expected irrespective, but are better than others] to enliven the legislative intent, in the process. As, had there been imprisonment it could have been dealt done only by judiciary and nonelse.
27. Thus seen from criminological & economic point of view and most importantly from constitutional stand point the only question is;
ARE these statutes [RERA and MHRDA] realy speaking RULE-OF-LAW or RULE-OF-MONEY.
As per Section 2(34) of Companies Act 2013 Director means a director appointed to the Board of a Company.
The board of directors of a company is primarily responsible for:
- Determining the company’s strategic objectives and policies;
- Monitoring progress towards achieving the objectives and policies;
- Appointing senior management;
- Accounting for the company’s activities to relevant parties, e.g. shareholders.
3. Minimum Directors Required in Company:-
i. One Person Company:- One Director.
ii. Private Limited Company:- Two Directors.
iii.Public Limited Company:- Three Directors.
Maximum 15 directors can be appointed in any format of Company (OPC, Public, Private). By Passing Special Resolution Company can increase the number of Directors beyond 15. Out of appointed directors one director should be resident in India for more than 182 days in previous calendar year.
4. Types of Directors:-
1. Residential Director:- As per Section 149(3) of Companies Act,2013 every company shall at One Director who has stayed in India for a total Period of not less than 182 days in the Previous calendar year.
2. Independent Director:- As per Section 149(6) an independent director in relation to a company, means a director other than a Managing Director, Whole Time Director Or Nominee Director. Companies which have to appoint Independent Director:- As per Rule 4 of Companies (Appointment and Qualification of Directors) Rules,2013 the following class of companies have to appoint at least Two Independent Directors:-
A} Public Companies having Paid up Share Capital-Rs.10 Crores or More;
B} Public Companies having Turnover- Rs.100 Crores or More;
C} Public Companies have total outstanding loans, debenture and deposits of Rs. 50 Crores or More.
Person Qualified for Independent Directorship:-
A) Who, in the opinion of the Board , is a person of integrity and possesses relevant expertise & experience;
B) i) Who is or was not a promoter of the Company or its Holding, Subsidiary or Associate Company(HSA Companies);
ii) Who is not related to Promoters or directors in the company, its HSA companies;
C) Who has or had no Pecuniary (relating to Money) relationship with Company and its HSA company or their promoters, directors during the 2 immediately preceding financial years or during the current financial year;
D) none of whose relatives has or had pecuniary relationship with company, its HSA company or their Promoters, directors -amounting to 2% or more of its gross turnover or total income; -or fifty lakhs or such higher amount as may be prescibed, whichever is lower. During the 2 immediately preceding financial years or during current financial year.
E) Who neither himself nor any of his relative-
1. holds or has held the position of KMP or has been employee of the Company or its HSA companies in any of the 3 financial years;
2.he or his relative has an employee or proprietor or a partner in any of the three financial years immediately preceding the financial year in which he is proposed to be appointed- as a auditor firm, Company Secretary in practice, Cost Auditor, Legal Consultant of the company or its HSA companies;
3. Holds with relaives 2% or more of the total voting power of the Company;
4. he or his has not be Chief Executive or Director of any Non Profit Organization that receive 25% of its receipt from the Company or HSA Companies or its Promoters or directors or that NGO holds 2% or more of the total voting power of the Company.
F) Who possesses such other qualification as may be prescribed. Tenure of Director:- an independent director hold office for a term up to 5 consecutive years, -Also eligible for reappointment by passing Special Resolution and also require its reappointment in Boards Report. -He shall not hold office for more than 2 Consecutive terms, but shall not be eligible to appoint after expiration of 3 Years of ceasing to become an independent director. Remuneration to Independent Director:- An independent director shall not be eligible for any stock option as per section 149(9) of Act. But they may receive remuneration by way of fee provided under section 197(5) of the Act. Sitting fees for Board meeting and other committee meeting shall not be exceed Rs. 1,00,000 per meeting.
3. Small Shareholders Directors:- A listed Company may have one director elected by small shareholders. May appoint upon notice of not less than 1000 Shareholders or 1/10th of the total shareholders, whichever is lower have a small shareholder director which elected form small shareholder.
4.Women Director:- As per Section 149 (1) (a) second provision requires certain categories of companies to have At Least One Woman director on the board. Such companies are any listed company, and any public company having-
- Paid Up Capital of Rs. 100 crore or more, or
- Turnover of Rs. 300 crore or more.
5.Additional Directors: Any Individual can be appointed as Additional Directors by a company under section 161(1) of the New Act.
6.Alternate Directors:- As per Section 161(2) A company May appoint, if the articles confer such power on company or a resolution is passed (if an Director is absent from India for at least three months).
- An alternate Director cannot hold the office longer than the term of the Director in whose place he has been appointed.
- Additionally, he will have to vacate the office, if and when the original Director returns to India.
- Any alteration in the term of office made during the absence of the original Director will apply to the original Director and not to the Alternate Director.
7.Shadow Director:- A person, who is not appointed to the Board, but on whose directions the Board is accustomed to act, is liable as a Director of the company, unless he or she is giving advice in his or her professional capacity.
8.Nominee Directors:- They can be appointed by certain shareholders, third parties through contracts, lending public financial institutions or banks, or by the Central Government in case of oppression or mismanagement.
9. Difference Between Executive and Non-Executive Director:- An Executive Director can be either a Whole-time Director of the company (i.e., one who devotes his whole time of working hours to the company and has a significant personal interest in the company as his source of income), or a Managing Director (i.e., one who is employed by the company as such and has substantial powers of management over the affairs of the company subject to the superintendence, direction and control of the Board). In contrast, a non-executive Director is a Director who is neither a Whole-time Director nor a Managing Director.
That all about the Director under Companies Act, 2013.