PARTICIPATION IN INTERNATIONAL CONFERENCES IN RUSSIA

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“The Indian Lawyer & Allied Services” which is based in New Delhi, Mumbai and Hyderabad had the opportunity to participate and speak at the “VIII India-Russia Business Dialogue”(IRBD) and III Eurasian Economic Congress, held on December 6, 2016 at the International Multimedia Press Center MIA, a partner of which is the Indian Business Alliance (IBA) and Business Council for Cooperation with India (BCCI). Sushila Ram Varma, Chief Consultant of The Indian Lawyer & Allied Services discussed DOING BUSINESS IN INDIA where she had the opportunity to make foreign investors understand Government’s Foreign Investment Policies in India.

The Indian Lawyer and Allied Services also announces its participation in the “Annual International Arbitration Conference, Russia as a place for Dispute Resolution” organized by International Chamber of Commerce(ICC) Russia which was held on December 7, 2016. The ICC Conference was well attended by Partners and Directors of various International Law Firms. Also, Alexey Kostin Chairman and Vladimir Khvalei, Vice Chairman of the ICC International Court of Arbitration were present.

Mrs. Sushila Ram Varma gave a COMPREHENSIVE ANALYSIS ABOUT INDIA’S DISPUTE RESOLUTION laws that were amended recently with the view of making arbitration a speedy remedy of dispute resolution. Her paper was well received by the international audience.

ABOUT ICC INTERNATIONAL COURT OF ARBITRATION

The International Court of Arbitration is the world’s leading body for the resolution of international disputes by arbitration.

The universal scope of the International Court of Arbitration, commonly known as “the Court”, is evidenced by the fact that each year, numerous parties, arbitrators and lawyers from countries of every economic, political and social system are present in ICC Arbitrations.

The Court members’ diverse professional, legal and cultural background brings richness to the Court’s daily work and decision making process.

The Court is one of the worlds’ most experienced and renowned international arbitration institutions. Working closely with its Secretariat, the Court’s primary role is to administer ICC Arbitrations. It performs the functions entrusted to it under the ICC Rules of Arbitration and continually strives to assist parties and arbitrators to overcome any procedural obstacles that arise.

In performing its functions, the Court is mindful of its duty to make every effort to ensure that awards are enforceable by law.

Speakers from the major countries were present in the Conference discussing Arbitration in their jurisdiction. Arbitrations have become a recognized means of resolving disputes all over the world. It was an honour for The Indian Lawyer & Allied Services to represent India and discuss about how India has also recognized the importance of quick resolution of disputes thereby amending the Arbitration Laws.

 

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GOVERNMENT MEASURES TO CURB THE NATIONAL CAPITAL’S RISING POLLUTION LEVELS

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In the recent times it has been observed that the National Capital’s pollution index is elevating to toxic levels because of various factors such as increased vehicular emissions, major ongoing construction works, burning of rice straw and agricultural wastage by farmers of Haryana and Punjab, inter alia. The Government of NCT of Delhi has been in action to curb the rising levels of pollution in the National Capital by organizing public awareness campaigns about the health hazards and control measures of vehicular emissions; by deploying mobile enforcement teams on regular basis at road locations for prosecution of polluting vehicles and vehicles not having Pollution Under Control (PUC) Certificates; by banning more than 15 years old commercial/ transport vehicles, autos & taxis driven on conventional fuels and diesel driven city buses; by registering four wheelers petrol driven vehicles which have catalyst converters fitted into their system and which comply with Bharat Stage III/Euro-III emission norms; by registering two and three wheelers which comply with Bharat Stage II/Euro-II emission norms; by banning 50 major construction works ongoing in Delhi and National Capital Region (NCR) for a week on 8th November 2016; and by asking National Thermal Power Corporation (NTPC) to find all possible solutions, including generating power from farm waste and converting farm waste into briquettes which can be burnt as fuel to generate electricity in its existing power plants.

According to Mr. Gufran Beig, the Program Director of SAFAR (System of Air Quality and Weather Forecasting and Research), Government of India, the proportion of pollutants from crop fires in Delhi’s air has risen dramatically from almost zero on November 1 to a peak of 70% on November 6. SAFAR’s chemistry transport model shows that pollution load from crop fires in Punjab and Haryana rose steadily after November 1. The biomass burning in Punjab and Haryana has contributed to the air pollution levels in Delhi. According to Professor V K Vijay, Centre for Rural Development and Technology (CRDT), IIT-Delhi, burning rice straw biomass adds up to 30kg of particulate matter, 600kg of carbon monoxide, 14.6 tonnes of carbon dioxide along with 20kg of sulphur dioxide emissions that are very harmful to humans as well as the environment.  Such farm wastes if used as forage for livestock would reduce the environmental impact but mostly they are burnt by farmers and left on the field to be ploughed down into the soil because they act as a soil improver and this would prepare the fields for the next sowing cycle.

It was reported recently that the States of Punjab and Haryana collectively produce about 15 million tonnes of rice straw which can be used to generate about 1,000 MW of electricity. But for installation of biogas plants hardly any debt funding is received from financial institutions and in case they are installed, they have a high cost of power. As a result very few biogas plants have been installed in India.

On November 15th, a team from IIT Delhi had come forward to offer technical support for Asia’s first biogas-based power plant in Fazilka, Punjab, which will be using the agro biomass for production of bio-fertilizers for farmers as well as for generation of power. This will not only help enrich the soil but will also help in controlling pollution. Also, if the Governments of Delhi, Punjab, Haryana and Uttar Pradesh collectively make efforts to install or co-invest in such plants, the farm wastes would be used in a prudent manner which would result in controlling the rising levels of pollution in these regions.

 

Harini Daliparthy

Legal Associate

The Indian Lawyer

DEBIT CARD FRAUDS

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Debit Card fraud occurs when a criminal gains access to a debit card number and the PIN to make unauthorized purchases and/or withdraw cash from your account.

In the 1st week of September, 2016 a few banks witnessed fraudulent exchanges in which debit cards were utilized in China and the US whereas card holders were in India. Cardholders also found this activities and many filed a complaint with their respective banks. The test by National Payments Corporation of India (NPCI) found a malware-prompted security break in the frameworks of Hitachi Payment Services, which gives ATMs, PoS (Point of Sale) and other different services in India.

After the test, it was found that ATMs’ security had been breached in May 2016 and all the three service suppliers Visa, MasterCard and RuPay asked banks to either tell their customers to change their PIN, or issue them new cards. Most banks requested their clients to change their ATM PIN, and in specific cases issue new cards by making the old ones null and void.

It is one of the greatest information breaches in the nation. As per NPCI, 90 ATMs have been compromised, and no less than 641 card holders of over 19 banks have lost Rs 1.3 crore as a consequence of deceitful transaction on their debit cards.

In order to alleviate this problem, RBI has set up a specialist board on IT Examination and Cyber Security to help the banks with cyber security activities, and proposes to cover, by 2017-18, all banks under a point by point IT examination program that it propelled in October 2015.

Here are some of the ways to avoid becoming the victim:

  1. Banking alerts: On signing up for banking alerts, your bank will contact you by email or text message when certain activity occurs on your account, such as a withdrawal exceeding an amount you specify or a change of address.
  2. Use a credit card: Instead of using a debit card for purchasing, use a credit card as it offers greater protection against fraud.
  3. Beware of phishing scams: Make sure you know who you’re interacting with, When checking your email or doing business online.
  4. Use a secured network: One should never do financial transactions online, while using the computer in a public place and/or over an unsecured network.

 

Sanchayeeta Das

Legal Associate

The Indian Lawyer

Legal Implication of Wrongful death

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Wrongful death is a death caused by the negligent, willful, or wrongful act, neglect, omission, or default of another. The wrongful death law applies in tort cases where the defendant’s conduct has resulted in the death of the victim leaving behind family members and dependents who will suffer as a result of the victim’s death.

The main intention behind this law is to compensate the family members and the dependents. The wrongdoers who injure others cannot escape liability as the injury caused was severe enough to kill the victim.

The burden of proof lies with the victim’s family in order to recover damages.

Not just anyone can file a suit for wrongful death. Only the immediate family members (spouses, children, etc.), distant family members (siblings and grandparents), life partners, parents of a deceased fetus and anyone who was financially dependent on the victim can file a suit for wrongful death.

Both civil and criminal proceedings can be brought against a defendant charged with wrongful death. The difference is that in criminal case, the suit will be filed by a Public Prosecutor on behalf of the State. While in case of a civil suit, it is filed by the victim’s family in order to recover money damages for their own benefit.

The defendant in order to defend himself/herself has the right to investigate the relation between the plaintiff and the victim. Damages in civil cases are based on the victim’s contribution to the family. The defendant can reduce damages by proving that the victim did not have any close ties with his or her family and that they were not financially dependent on the victim.

It requires considerable capital and skill in order to litigate a wrongful death case. It is always advisable to take help from lawyers who handle these kinds of cases to avoid problems.

 

 

Sanchayeeta Das

Legal Associate

The Indian Lawyer

ABOUT THE SCHEME OF WITHDRAWING OLD HIGH DENOMINATION NOTES

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In a move to curb corruption, black money and fake currency circulation and terrorism funding, PM Narendra Modi declared that currency notes of Rs 1000 and Rs 500 denomination will not be legal tender and would be

void from the midnight of 9th November 2016. Moreover, new notes of Rs. 500 and 2000 will be printed by RBI. The rationale behind this scheme of the BJP Government is that there is circulation of fake currency notes of high denomination such as Rs. 500 and Rs. 1000 in the economy and are mostly used by terrorists for illegal activities and by black money hoarders. As a consequence of withdrawal of these high denomination notes by the Government from the economy, the old high denomination (OHD) notes cannot be used by public to transact for any purpose except at government bus stands for travel by state government or state PSU buses and railway stations (till 72 hours from the date of notification), Public sector Petrol Pumps (till midnight of 11th November), government hospitals and government dispensaries (till 72 hours from the date of notification), co-operative societies (till 72 hours from the date of notification), Government dairies (till 72 hours from the date of notification), airports (till 72 hours from the date of notification) but they have to maintain a register for the same.

OHD notes can be exchanged by people at all Issue Offices of RBI and branches of commercial banks/Regional Rural Banks/Urban Co-Operative Banks/State Co-operative Banks or at any Head Post Office or Sub-Post Office

from 10th November 2016 to 30th December 2016. If within this time period any person is unable to exchange the OHD notes, then an opportunity will be given to him/her to do so at specified offices of the RBI, along with necessary documentation as may be specified by the Reserve Bank of India. For instance, if a person is not there in India during this period, then he/she may authorize in writing enabling another person in India to deposit the notes into the former’s bank account and the authorized person will have to come to the bank branch with the OHD banknotes, the authority letter given by the person and a valid identity proof such as Aadhaar Card, Driving License, Voter ID Card, Pass Port, NREGA Card, PAN Card, Identity Card Issued by Government Department, Public Sector Unit to its Staff.

The limit for exchanging OHD notes in cash is Rs 4000 per person and anything claimed over and above will be receivable by way of credit to bank account. In case the amount to be exchanged exceeds Rs 4000, any branch of a bank, where an account is held by the person concerned, will credit the account of the holder and any branch of any other bank, where an account is not held by such person, can also credit his account on production of valid identity proof and bank account details for electronic fund transfer to his account. But a foreign tourist can purchase foreign exchange equivalent to Rs 5000 using the OHD notes at airport exchange counters within 72 hours after the notification but only if he/she is able to produce a proof of purchasing the OHD notes.

For making payments above Rs. 4000,

  1. The bank account balance has to be used to pay via cheque or electronic means of transfer such as internet banking, mobile wallets, immediate payment service (IMPS), credit/debit cards etc and in the absence of a bank account, the person concerned has to open a new bank account.
  2. The cash that can be withdrawn from Banks against withdrawal slip or cheque is subject to ceiling of Rs10, 000/- in a day within an overall limit of Rs.20, 000/- in a week (including withdrawals from ATMs) and this limit is applicable up to 24th November 2016.
  3. The cash can also be withdrawn from ATMs from 11th November 2016 up to a maximum of Rs.2, 000/- per card per day up to 18th November, 2016. This limit will be raised to Rs.4000/- per day per card from 19th November 2016 onwards.

 

Although this move will cause short-term inconvenience to public at large, but as a long term benefit, there will be a boost to the banking sector liquidity because there will be bank deposit growth as new bank accounts would be opened by people who did not have any account earlier in order to deposit the OHD notes instead of exchanging them for new notes; real currency circulation would increase in the economy; and with black money brought under legitimate channels, the government’s tax revenue collections would get a boost. As a result, the economy and the banking system would benefit as a large part of the black economy will eventually become a part of the formal economy.
Daliparthy Harini

Legal Associate

The Indian Lawyer

THE EVOLUTION OF BRICS: BRAZIL-RUSSIA-INDIA-CHINA–SOUTH AFRICA

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BRICS, an acronym for Brazil, Russia, India, China and South Africa, is an association amongst these five emerging national economies of the world. Initially, it was an association only amongst Brazil, Russia, India, and China (BRICs) until South Africa joined in 2011. The Heads of these States meet annually to about financial, economic and political matters that are common to all. Although it started as an informal and diplomatic meeting amongst the Foreign Ministers of the BRICS, but it gradually emerged as a powerful political and economic entity, far beyond the original concept tailored for the financial markets.

The successful Summits held at Yekaterinburg, Russia (2009) discussed about reformation of international financial institutions, sustainable development and measures to combat climate change; Brasilia, Brazil (2010) discussed about Iran nuclear programme, reformation of the International Monetary Fund (IMF) and the World Bank (WB) governance structures, promotion of multilateral trade, food security; Sanya, China (2011) discussed about combating terrorism in lines with UN, UN reform, economic cooperation based on national currencies, and the war in Libya; New Delhi (2012) discussed about anti-crisis measures and settlement issues related to Syria and Iran, integration of markets; Durban (2013) adopted a eThekwini Declaration and Action Plan which reflects the common approaches of the BRICS countries on urgent issues of multilateral cooperation, aid to Africa in terms of funding infrastructure projects; Fortaleza (2014) signed an agreement on establishing a New Development Bank (NDB) and a treaty on creating a Contingent Reserves Arrangement to financially aid the BRICS economies and aim at poverty reduction; Ufa, Russia (2015) had internet governance and cyber regulation and reformation of the international financial system on their agenda.

In this period, BRICS has evolved in an incremental manner, in areas of consensus amongst its members and has strengthened the coordination and cooperation in financial, economic and political governance. Intra-BRICS cooperation has emerged as a powerful economic breakthrough at the international level by providing a platform for discussing security issues and developing international policies on common matters. It has been observed over the time, that there has been a boost in the economic output of BRICS. By establishing NDB and the Reserve fund, BRICS has moved a step forward to give financial independence and stability to its nations by reducing their dependence on IMF and World Bank and to prevent short-term liquidity pressures. Moreover, it has broken the monopoly of IMF and WB which would motivate them to function transparently and efficiently.

The 8th Summit at Goa, India (2016) has on its agenda: to further institutionalize the BRICS cooperation, implement decisions from previous Summits, integrate and continue the existing mechanisms, and invent some mechanisms on cooperation. It will also be looking into combating terrorism measures, investment opportunities, women entrepreneurship and organize a trade fair to encourage Start-ups and provide a platform for young entrepreneurs from across BRICS nations to showcase their technologies. BRICS is cautiously being consolidated and gradually taking forward the institution-building process.

 

 

Daliparthy Harini

Legal Associate

The Indian Lawyer

RIGHT TO INFORMATION

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“Information is the currency of democracy”.

The ‘Right To Information’ (RTI) Act was introduced in 2005 with a sole objectthatis to empower the citizens,promote transparency andaccountability in the working of the Government,contain corruption, and make our democracy work for the people in the real sense.Right to Information is a part of fundamental rights under Article 19(1) of the Constitution of India which says that every citizen has freedom of speech and expression.The Right To Information Act mandates that timely response should be given to any citizen who asks for the information. This initiative is taken by the Ministry of Personnel, Public Grievances and Pensions to ensure a portal for quick search of information to citizens about the Government.

Right to Information Act 2005, empowers every citizen to:

  • Ask any questions from the Government or seek any information.
  • Take copies of any Government documents.
  • Inspect any Government documents.
  • Inspect any Government works
  • Take samples of materials of any Government work.

 

Recently the Central Information Commission (CIC) announced that as soon as an RTI applicant files an appeal or a complaint, he would be given a registration number and would get an alert on his email and mobile phone. Then the case would be transferred immediately to the concerned Information Commissioner’s Registry electronically.  The CIC now would work like an e-court with all its case files moving digitally and the applicant being alerted about case hearings through an SMS and email.

According to a recent study conducted by Commonwealth Human Rights Initiative (CHRI), 4,800 applications are being filedeveryday to access information from the Government across India. This is the first decadal study conducted after Right to Information (RTI) Act implemented in October 2005. This study has revealed that over 1.75 crore applications have been filed since 2005, out of which, one-fourth being requests to the Centre. It also reveals that 27.2% (47.66 lakh) of the total RTIs filed between 2005 and 2015 were to the different ministries and departments under the Centre.

The study shows that the actual number of RTI applications could be higher since many public authorities do not report their annual compliance and thus the number of applications filed with them does not get accounted. Under Section 25 of RTI Act, all public authorities under Centre and State Governments are required to submit annual status of implementation to Information Commissions but the basic responsibilities of publishing annual reports and having functional websites are not followed by the State Commissions. Some of the State Information Commissions have not published any annual report on their website and some have been doing it erratically. Some of them do not have a functional website for example the Information Commission of Goa. Also, the Information Commissions follow disparate cycles of annual reporting – some follow calendar year and some adopt the financial year reporting cycle. The State Information Commissions, the final Appellate Authorities in the States for RTI Act, also have been playing truant as far as their responsibilities are concerned.

CHRI’s Official says, “The number of RTI applications need to reduce. For this, the Governments need to identify frequently asked questions and proactively disclose that information. The Governments also must fulfill their obligations of spreading awareness about RTI with particular focus on the disadvantaged segments of society.”

FEW THINGSONE NEEDS TO KNOW ABOUT THE ACT AND FILING AN RTI PLEA-

  • Every public authority has an obligation to maintain computerized versions of all records in such a way that it can be accessed over a network anywhere in the country and issued to the person who has requested for information.

 

  • Every public authority should provide essential information to the public through various channels of information (including internet) at frequent intervals so that the use of the RTI Act to obtain information can be kept to a bare minimum.

 

  • Any person who desires to obtain information shall submit a written or electronic request/application in English or Hindi or in the official language of the area to the Central Public Information Officer or his/her counterpart at the state level or local authority such as the municipal administration/panchayat, while others are handled by the Central Government.

 

  • The law mandates that the information should be provided in 30 days and if it is rejected, the Public Information Officer or his/her equivalent will communicate the reason for rejection, if this does not happen, he can file an appeal. The first appeal should be addressed to ‘The Appellate Authority’ with the name of the department and the address. The Appellate Authority is mandated to revert in 30 days from the date of receipt of the appeal. If the Appellate Authority fails to reply, further appeals lie with the Information Commission, the Chief Information Commissioner, State/Central Information Commission.

 

  • The Authority will be under no obligation to provide such information that might hurt the sovereignty and integrity of India, information that has been forbidden to be shared by any court of law, information received under confidence by a foreign Government and cabinet papers.

 

PARUL

SENIOR ASSOCIATE

THE INDIAN LAWYER

INDIA & SINGAPORE

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The close ties between India and Singapore have a history rooted in strong commercial, cultural and people-to-people links. Singapore is not only an important trading partner in ASEAN but also a major source of FDI inflows in India.

India is Singapore’s eight largest investor. India-Singapore bilateral trade accelerated to USD 17.44 billion in 2010-11 from USD 14.04 percent in 2009-10.

Recently, Prime Minister Narendra Modi and visiting Singapore Prime Minister Lee Hsien Loong, decided to boost cooperation in countering threats of terrorism. Almost a year after they elevated bilateral ties to a strategic partnership, India and Singapore further cemented their relationship with the inking of three new agreements on Tuesday, 4th October.

India and Singapore signed three memorandum of Understandings (MoUs) which are in the field of skill development and IPR to boost bilateral relations between them.

First, MoU in the field of Industrial Property Cooperation: It was signed between Department of Industrial Policy & Promotion (DIPP) and Intellectual Property Office (IPO), Singapore.

Second, MoU on collaboration in the field of Technical and Vocational Education and Training: It was signed between National Skill Development Corporation (NSDC) and ITEES Singapore.

Third, MoU on collaboration in the field of Technical and Vocational Education and Training: It was signed between Government of Assam and ITEES Singapore.

Some of the highlights of the MoUs are:

  1. India and Singapore decided to strengthen cooperation in countering threats of rising terrorism.
  2. India seeks to enhance cooperation with Singapore in key sectors including trade and investment.
  3. Highlighted importance of Defence and security cooperation as the key pillar of strategic partnership between India and Singapore.
  4. Raised concern over rising tide of terrorism, especially cross-border terrorism and the rise of radicalization as a grave challenges to our security.
  5. India agreed to expedite the second review of Comprehensive Economic Cooperation Agreement (CECA).

 

Sanchayeeta Das

Legal Associate

The Indian Lawyer

 

 

LEGALITY OF INDIA’S SURGICAL STRIKES

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The United Nations Security Council (UNSC), acting under Chapter VII of the UN Charter 1945, had passed a UNSC Resolution 1373 in the year 2001. It emphasizes on all aspects of international terrorism. It allows Member States to take additional measures to prevent and suppress acts of terrorism and prohibits States and individuals from providing funds to carry out acts of terrorism, or providing safe haven to terrorists, or allowing movement of terrorists across borders, etc. Article 51, under Chapter VII, of the UN Charter, allows the Member States to take measures in self-defence to maintain international peace and security if an armed attack takes place against it.

In line with the provisions of UN Charter 1945, the Government of India and the Government of Pakistan had entered into an agreement in Shimla in the year 1972 to put an end to the conflicts between the two countries and establish peace and harmony. In order to achieve this objective, it was agreed between the two that “neither side shall unilaterally alter the situation and both shall prevent the organization, assistance or encouragement of any acts detrimental to the maintenance of peaceful and harmonious relations” and “that in accordance with the Charter of the United Nations they will refrain from the threat or use of force against the territorial integrity or political independence of each other”.

But it has been seen in the month of September 2016, that terrorists, along the Line of Control (LoC) in Pakistan occupied Kashmir (PoK), have attacked the Indian Army bases at Poonch and Uri in Jammu and Kashmir.

In a Press Conference conducted on 29th September 2016, the Director General of Military Operations, India stated that they have found items including global positioning systems (GPS) having Pakistani markings. Also that the terrorists hailing from Pakistan or PoK, who have been captured by Indian Army, have confessed to their training in Pakistan or territories under its control. India has made multiple efforts to cooperate with Pakistan in assisting their investigations with respect to such terrorists and those killed in the Poonch and Uri attacks, but the infiltration attempts of the terrorists kept rising.

The Indian Army on 28th September 2016 received evidence and information regarding terrorist units positioned across LoC in PoK which was planning to infiltrate into the Indian Territory. On September 29, 2016, the Indian Army had conducted surgical strikes on the terrorist camps across the LoC in PoK, destroying seven terror launch pads used for launching nuclear missiles. It has been clarified by the Indian Army that the motive behind this surgical measure was to maintain peace and tranquility in the Indian Territory and to prevent and suppress terrorist attacks on Indian Territory and not to initiate any cross border firing and ceasefire violation.

 

Daliparthy Harini

Legal Associate

 

 

 

 

 

ACQUISITION AND TRANSFER OF IMMOVABLE PROPERTY IN INDIA BY FOREIGN NATIONALS, NRI AND PERSON OF INDIAN ORIGIN (PIO)

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The Foreign Exchange Management Act, 1999 (FEMA) empowers the Reserve Bank to frame regulations to prohibit, restrict or regulate the acquisition or transfer of immovable property in India by persons resident outside India.  FEMA also prohibits acquisition or transfer of immovable property in India by citizens of certain countries, it states – “No person being a citizen of Pakistan, Bangladesh, Sri Lanka, Afghanistan, China, Iran, Nepal or Bhutan without prior permission of the Reserve Bank shall acquire or transfer immovable property in India, other than lease, not exceeding five years”.

The FEMA regulates the purchase of properties by Non-Resident Indians (NRI), Persons of Indian Origin (PIO), and Foreign Nationals/Citizens.

DEFINITIONS –

  • NON-RESIDENT INDIAN – Non-Resident Indian (NRI) is a citizen of India resident outside India.
  • PERSON OF INDIAN ORIGIN – Person of Indian Origin (PIO) means an individual (not being a citizen of Pakistan or Bangladesh or Sri Lanka or Afghanistan or China or Iran or Nepal or Bhutan) who at any time, held an Indian Passport or who or either of whose father or mother or whose grandfather or grandmother was a citizen of India by virtue of the Constitution of India or the Citizenship Act, 1955.
  • FOREIGN NATIONALS – A person is a Foreign National to India, who lives outside the India and not a citizen of India.

 

PURCHASE OF IMMOVABLE PROPERTY IN INDIA BY A FOREIGN NATIONAL OF NON- INDIAN ORIGIN, NRI AND PIO RESIDENT OUTSIDE INDIA –

NRI – An Indian citizen resident outside India does not require any special permission to buy immovable property in India. An NRI can buy or acquire any immovable property in India other than agricultural/plantation/farm house, and transfer any immovable property in India to a person resident in India and to a person resident outside India who is a citizen of India or to a person of Indian origin resident outside India.

PIO – A PIO does not require any special permission to buy immovable property other than agricultural land / farm house / plantation property in India.

A PIO can acquire an immovable property other than agricultural land / farm house / plantation property in India, by way of gift from a person resident in India or from a person resident outside India who is a citizen of India or from a person of Indian origin resident outside India, and by way of inheritance from a person resident outside India who had acquired such property in accordance with the provisions of the foreign exchange law in force at the time of acquisition by him or the provisions of these Regulations or from a person resident in India.

A PIO can transfer any immovable property in India other than agricultural land/farm house/plantation property, by way of sale to a person resident in India. He/ she can also transfer agricultural land/farm house/ plantation property in India, by way of gift or sale to a person resident in India who is a citizen of India and any residential or commercial property in India and by way of gift to a person resident in India or to a person resident outside India who is a citizen of India or to a person of Indian Origin resident outside India.

FOREIGN NATIONALS – A Foreign National resident outside India cannot buy immovable property in India. Also he cannot acquire any immovable property in India unless such property is acquired by way of inheritance from a person who was resident in India. However, he can acquire or transfer immovable property in India, on lease, not exceeding five years without the prior permission of the Reserve Bank.

However, a Foreign National on becoming ‘resident in India’ other than a citizen of Pakistan, Bangladesh, Sri Lanka, Afghanistan, China, Iran, Nepal, or Bhutan, can purchase immovable property in India without any prior approval from the RBI.

The terms ‘Resident in India’ defined under FEMA, according to that a Foreign National would have to satisfy the conditions given under FEMA to become a resident in India that are :- (a) a person must be residing in India for more than one hundred and eighty-two days (182 days) during the course of the preceding financial year and  (b) a person who has come to or stays in India in the current financial year for the purpose of taking up employment, carrying on business or vocation in India or for any other purpose that would indicate your intention to stay in India for an uncertain period.

Foreign Nationals who have acquired immovable property in India by way of inheritance with the specific approval of the Reserve Bank or have purchased the immovable property with the specific approval of the Reserve Bank cannot transfer such property without the prior permission of the Reserve Bank.

 

Parul

Senior Associate

The Indian Lawyer