Remove legal unfairness, demand ex-servicemen
Ex-servicemen demand right to appeal to High Courts as fundamental right exercised by other citizens, against an order of SC making Armed Forces Tribunal the first and last forum for them 
 
The Indian Ex-Servicemen Movement (IESM), which is Federation of Military Veterans' Movement, has requested Prime Minister Narendra Modi to abrogate Sections 30 and 31 of the Armed Forces Tribunal (AFT) Act. Abrogation of these sections will help challenge orders of the AFT on the lines of the Central Administrative Tribunal (CAT) and make justice accessible and practical for defence personnel, ex-servicemen, widows and their families, IESM said.
 
The letter sent by IESM refers to a decision on 11 March 2015 by the Supreme Court, which effectively ensures that the AFT becomes the first and the last forum for litigants, including defence personnel, veterans and their families.
 
In a letter, IESM, said, "The judgement was passed on an appeal filed by the Ministry of Defence (MoD) and perhaps also the Army Head Quarter (HQ) during the time of the last Government. We also have reasonable information to believe that one of the grounds raised by the MoD/Army in the appeal for denying the right of judicial remedy like other citizens of India, was that Fundamental Rights can be restricted/abrogated under Article 33 of the Constitution for defence personnel and hence a judicial remedy under writ jurisdiction of High Court would not be available."
 
"If it is true that this argument was raised by the MoD/Army, then it is the most unfortunate that the system itself is pleading for placing defence personnel on a lower pedestal than other citizens and pleading before the SC that the military community does not deserve the enjoyment of fundamental rights like others. It is a well known fact that Article 33 only operates during performance of duties to maintain discipline and has no connection with right to access of justice," the letter says. 
 
It is also well known that the majority of cases in the AFT pertain to retired personnel, military widows and their families and hence Article 33 even otherwise has no applicability. This is also against the spirit of Article 39A of the Constitution, which underlines equal justice for all citizens, IESM said.
 
According to the letter, there was an attempt to convince military community that the decision will lead to ‘quicker’ justice to defence personnel. However, it says, on closer and deeper examination of the issue, the following real facts and fallouts emerge:
  1. There is actually no right of appeal to the Supreme Court from AFT orders as per the AFT Act since an appeal only lies in exceptional cases involving ‘point of law of general public importance’ vide Section 31 of AFT Act. Hence what has been pleaded before the SC is that AFT should become the court of first instance as well as the court of last instance, leaving defence personnel, veterans and widows remediless since it is well known that 99.9% of cases can never involve ‘public importance’ questions. The decision will not lead to ‘quicker’ justice but in reality remove all chances and channels of challenge/appeal against AFT decisions. Can this bogey of ‘quicker’ justice be raised at the price of fundamental rights of accessible justice and remedy to citizens? 
  2. It is well known that almost all such litigants cannot afford litigation in SC due to its prohibitive cost and the aura itself of being the highest court of the country. It is not understood how the defence ministry expects poor litigants including disabled soldiers and widows from all over the country to travel to Delhi and engage lawyers in SC to fight their cases. Most of the cases in the AFT involve issues such as disability benefits, pension, minor allowances, pay fixation, ACRs etc and litigants would now be expected to suffer in silence if they feel that they have not got justice from AFT. 
  3. Defence personnel, veterans, widows and families have been deprived of their basic right of access to justice due to the plea raised by the MoD/Army wherein while all citizens of the country would have access to multiple tiers of justice, not even one tier would be available to us. Even civil government employees aggrieved by orders of Central Administrative Tribunal (CAT) can approach the HC if they are dissatisfied and then further the SC, whereas similar access has been denied to us and after an order of the AFT even the SC cannot be approached as a matter of vested right unless there is involvement of a point of general public importance. 
  4. We hereby express our dismay on the attempt of the official system to convey to the SC that fundamental rights of the military community should be restricted or abrogated. We are disappointed that the system itself by raising the plea of Article 33 is attempting to prove that defence personnel, ex-servicemen and their families are lower than the ordinary person on the street. This will have disastrous consequences in the years to come. If the MoD/Army makes such averments pleading for taking away the fundamental rights of their own members and former members and their families, then it is extremely unfortunate.
  5. It is well known that the AFT functions under the control of the MoD and even Members of AFT are appointed by the MoD and selected by a selection committee, which has the Defence Secretary as its member. AFT has also not been given civil contempt powers to ensure compliance of its orders. In other words, an ineffectual body has been created which functions under the MoD and then now on the plea of the MoD it has been assured that there is no effective appeal making it an all supreme body.
Maj Gen Satbir Singh (Retd), Chairman of IESM says, "We express dissatisfaction at the stand and damaging stance of the MoD and the Army in the said case, which has led to such a situation. We request the PM to kindly abrogate Sections 30 and 31 of the AFT Act so that AFT orders can be challenged on the lines of the CAT thereby making justice accessible and practical for defence personnel, ex-servicemen, widows and their families. 
 
Tamil Nadu-based Welfare Service of Ex-Servicemen/Families and Others, also supported the demand made by IESM. "We fully support the ex-servicemen associations from Punjab and Chandigarh. We request you to kindly initiate steps to abrogate and repeal Sections 30 and 31 of the AFT Act in order to make justice accessible to defence personnel on the lines of CAT so that aggrieved parties are able to approach the High Courts, which are independent court unlike the Tribunals, which operate under the control of Ministry of Defence and which do not inspire the confidence of litigants, " the letter sent by the association to PM Modi says. 
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    COMMENTS

    maey

    6 years ago

    Maey, My ex (Russ) broke up with me couple of weeks ago after 5 years. He started behaving strange when he got a new job. I later found out he was hanging out with a girl he met at his place of work. He now talks to me anyhow and even beat me up. I just never wanted to lose my man. I love him so much. I told a cuz about it, and she gave me a contact of a spell caster she has used before; +1 (443) 459-1140, [email protected]. I called him immediately because i was so desperate and losing my mind already. The spell caster was very honest to let me know that in 24 hours or less I would have Russ back. I was skeptical cos I haven't done this before. But my cousin encouraged me and told me about how she got results from his spell too.
    After he has done the spell, Russ sms me and call some hours later, he said "baby i'm sorry, can we meet pls?".
    Since then he has been great having him back.
    Thanks to vudoo priest.

    SuchindranathAiyerS

    6 years ago

    Service men have far too exalted an opinion of India's higher judiciary. They should remember what happened to General V.K.Singh's date of birth case. India's Courts, like India's Constitution and laws slice and dice "Justice" by caste, tribe, religion, gender, influence and wealth in their own good time. By proscribing them from approaching the High Courts, the law spares them a lot of expense, time and humiliation. India is about "who" never about "what". Show me the person, and I shall show you the law.

    Securities Debt: SEBI’s amendments inconsequential
    In an environment where securitisation is considered to be done and written off, the amendments on public offer and listing of securitised debt instruments by SEBI are highly inconsequential
     
    Market regulator Securities Exchange Board of India (SEBI) on 9 April 2015 amended the Regulations pertaining to public offer and listing of securitised debt instruments vide SEBI (Public Offer and Listing of Securitised Debt Instruments) (Amendment) Regulations, 2015. However, in an environment where securitisation is considered to be done and written off, these amendments by SEBI are highly inconsequential. Especially at this time, the market does not need an overdose of regulations but a new lease of life.
     
    The Amendment Regulation of 2015 are accommodating the Concept Paper issued by SEBI earlier, in 2014, with regard to standardisation of the Term Sheet; Rationalisation & Enhancement of Responsibilities of Securitization Trustees
    Performance of Securitisation Industry in recent years
     
    The securitisation industry has been constantly under regulatory scanner and the amendments since 2012 have given industry reasons to rejoice and mourn at its visible and slow death. This is also evident with the rise and the fall in the securitisation volumes ever since. The table below explains the securitisation volumes over the years as below:
     
     
    In the year 2012, the revised securitisation guidelines were issued for banks and non-banks in April and August of 2012 respectively. The guidelines were a welcome change, as they brought clarity on securitisation, through pass-through certificate (PTC) route. The market swung upwards post the amendments. There were certain issues with regard to taxation of securitisation vehicles and the pass-through nature of the trusts. 
     
    In the wake of the market demanding pass-through for securitisation trusts, the Union Budget for 2012-13 introduced Chapter XII EA with regard to taxation of securitisation trusts pursuant to which distribution tax was levied on the income distributed by securitisation trusts. 
     
    If the provisions of distribution tax on securitisation trusts as against the demand for pass-through was not enough for the market to be throttled, a series of amendments on the priority sector lending guidelines by Reserve Bank of India (RBI) did the needful of killing the market completely.
     
    In May 2014, vide a notification on Treatment of Rural Infrastructure Development Fund (RIDF) and certain other funds under priority sector, RBI stated that the outstanding deposits as on 31st March of the current year under RIDF, Warehouse Infrastructure Fund (WIF), Short Term Co-operative Rural Credit Refinance Fund (STCRCRF) and Short Term RRB Fund with NABARD, will be treated as part of indirect agriculture and will count towards overall priority sector target achievement. This reduced dependence of banks on non-banking financial companies (NBFCs) for meeting their priority sector lending targets. 
     
    It was always evident and known that the securitisation industry in India was dependent on the priority sector lending targets of banks. NBFCs would sell their portfolios to banks, so that banks could meet their priority sector lending targets; it also explained the heightened volumes of securitisation towards the fag end of the financial year. It would not be improper to say that securitisation volumes were directly proportionate to the demand for priority sector requirements. The RBI in 2014 eased the priority sector targets for banks.  
     
    The series of regulatory reforms in the sector have made the industry vary of the changes and has been looking at alternative modes of refinancing. While securitisation is considered quintessential for the growth and sustenance of NBFCs in India, emphatically they are forced to look at alternative means of refinancing.
     
    The dipping volumes in the year 2014-15, that are at an all-time low in the recent years, speaks of the markets response to the recent regulatory changes. 
     
    The Amendment Regulation of 2015 introduces the eligibility requirements for the trustee, registration requirements and the various compliances required to be carried out by the trustee. The Amendment Regulation of 2015 also finalise the term sheet that may be used as a standardised document for all securitisation transactions. 
     
    Highlights of Amendments
     
    The summary changes introduced vide Amendment Regulation of 2015 are as below:
    a. An entity making an application to SEBI to be registered as a trustee of special purpose distinct entities shall require 
    i. net worth of Rs2 crore;
    ii. have in its employment minimum of two persons; between them have at least five years of experience in securitisation activity and at least one among them shall have a professional qualification in law from any university or institution recognised by the Central Government or any State Government or a foreign university.
     
    b. The requirement for application to SEBI for being trustee shall not be applicable to National Housing Bank (NHB) and National Bank for Agriculture and Rural Development (NABARD).
     
    c. The responsibilities of the trustees include:
    i. Creation, monitoring, protection and enforcement of security interests;
    ii. Grievance redressal for protection of investors interests;
    iii. Timely redemption of securitised debt instruments;
    iv. Monitoring asset cover at all times which includes calling for periodic reports from originator 
    v. Maintenance of net worth and infrastructure to facilitate carrying out of responsibilities of trusteeship.
     
    The term sheet is the same as was proposed under the concept paper. 
     
    How the market views the Amendments?
     
    In an environment where securitisation is considered to be done and written off, the amendments introduced by SEBI are highly inconsequential. The question of greater responsibility of the trustees arises where there is any securitisation in the market. 
    Are the regulators listening?
     
    (CS Nidhi Bothra is executive vice president at Vinod Kothari Consultants Pvt Ltd)
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    Will the Realty Bill Make a Difference?

    A ray of hope for hapless homebuyers

     

    The Union Cabinet has cleared The Real Estate (Regulation & Development) Bill which had been languishing under the United Progressive Alliance government. The Cabinet clearance comes at a time when there is irrefutable evidence of a severe slowdown in the sector, especially in the sale of apartments. Although India continues to have an acute shortage of residential houses, property prices, in most cities, have been ramped up beyond the reach of ordinary Indians desperate to own a home. But the builder lobby, which is well represented in parliament and state assemblies, across the entire political spectrum, won’t give up easily. So, it remains to be seen whether the Bill makes a smooth passage through both houses of parliament. 
     
    The IIMB Magicbricks Housing Sentiment Index recently showed that nearly 50% of potential buyers are waiting to see some clarity in price trends, but the sellers surveyed remained bullish. The frank reality, revealed by the index, was the sharp decline in prices across Tier-1 cities in India since May 2014. There has been a 20% decline across most cities; the sharpest correction has been in Gurgaon (38%) and Noida (34%). A significant part of this has happened recently, after the Union Budget at the end of February 2015. 
     
    Will the Real Estate Bill check rampant malpractices and black money in the realty industry and safeguard consumer’s interest? For starters, the real estate regulator will require registration of all property developers and real estate agents in order to regulate them. It promises to bring accountability and transparency in real estate transactions with steep fines (going up to 10% of the project cost) and imprisonment of up to three years for various violations. 
     
    However, some fundamental problems are likely to remain. Several issues relating to land acquisition, registration, transfers, taxation and a plethora of permissions and clearances will remain with state governments and municipal authorities. There is rampant corruption in each of these processes and Central legislation is not going to address many of these issues. If the new legislation merely brings in additional cost and compliances without making the process of acquiring and developing real estate projects simpler and cleaner, it could end up adding to problems instead of resolving them. 
     
    At a time, when the government is struggling to get Bills passed in the Rajya Sabha, it is hard to imagine that it can get states to cooperate and put in place the requisite for registration and adjudication of issues. And, yet, the mere process of forcing builders to register projects, upload building plans, land ownership and statutory approvals and clearances in the public domain and the registration of real estate agents will bring the much-needed transparency that could set the stage for tighter regulation and smoother transactions in the years to come. 
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    COMMENTS

    manoharlalsharma

    6 years ago

    Will the Realty Bill Make a Difference? ONE MORE BOOTH LIKE A POLICE CHOWKY TO MAKE COMPLAINT AND THEN TO NEGOTIATION OR TO FIX HAFTA.

    R Balakrishnan

    6 years ago

    Yet another eyewash. Bill is drafted by the builder lobby. With most legislators having interest in the real estate business, they won't take the axe to their own feet. Govt will put it up as one more 'achievement '. This bill is a joke on the consumer.

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