‘Over 30% of lawyers have fake degrees’

NEW DELHI: The process of weeding out fake lawyers has begun across the country. Bar Council of India chairman Manan Kumar Mishra told TOI on Wednesday that results of an ongoing verification process may surprise many and far exceed the initial estimates that over 30% lawyers have fake degrees.

"We have implemented the BCI Certificate and Place of Practice (Verification) Rules 2015 and have now made it mandatory for all lawyers to re-register in a new format where they have to compulsorily submit all their certificates starting class X board results," the BCI chairman said.

These certificates will then be verified with respective universities and boards and the entire verification process is likely to be completed by 2016. All lawyers who have not practised in the last five years, will remain advocates but will not be allowed to practise.

The Bar Council with the help of state governments have started setting up lawyers' academy in various states. The first such academy — where lawyers will be trained for three months in court procedures and ethics — has been set up in Kochi. The second one will come up in Jharkhand, followed by a national-level academy in Jabalpur. A certificate from the academy will be mandatory for a lawyer to practise in any court, Mishra said.

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Kapil Sibbal. Lungi Chidambrana, , Jawahar Nehru, Mohan Gandhi,John Cole

The BCI chairman had last year said that about 20% of practicing lawyers don't have a valid law degree. The BCI chief had approached the Centre last year for funds to start lawyers' academy while promising to weed out lawyers with fake degrees.

The government has extended its help in training of lawyers at the existing judicial academies where judges are trained and which are also responsible for mid-career training of judges. The law ministry had told the BCI that a decision in this regard was taken at the chief ministers and chief justices conference in April last year to provide necessary assistance for conducting training programmes for other stakeholders in the justice delivery system, such as public prosecutors, lawyers and police officers.



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Memorandum of understanding

Basic Information- In the language of Black's Law Dictionary, the concept of Memorandum of Understanding is considered as a non-committal written statement detailing the preliminary understanding of the parties who plan to enter into a contract. As per the terminology states Memorandum of understanding (hereinafter the MoU) means, mutually agreed set of statements for the understanding.

In simpler language, MoU is an agreement between two or more than two parties. It is considered that MoU is just an agreement, but sometimes it can be used a legal instrument in the arena of contracts; the MoU can be presented as an effective and technical tool for establishing clear objective and targets. The MoU is exchange of words between the parties, and the MoU can be enforceable if those words say so. In India, the MoUs are governed under Indian Contract Act 1972. As we have discussed that MoU is an agreement; the Indian Contract Act defines Agreement as a promise or a set of promises forming the consideration for each other. Interestingly, a contract is defined as an agreement which is enforceable by law.

Though, there is no straight forward definition of MoU, it can be considered either as an agreement or a contract as it prescribes.

Legal Binding of MoUs- If we look into the decisions of various High Courts and Supreme Court; it seems that the MoU can be of binding nature depending upon the object of the Agreement, and the suitability and intention of the parties in the MoU.

In the case of Reliance Natural Resources Ltd. vs. Reliance Industries Ltd., the agreement was entered into between the private parties i.e. the Ambani brothers and their mother; the MoU was not approved by the shareholders and nor it was mentioned under the scheme of legal nature. So, one analogy can be inferred through this case that because the MoU was not circulated to all the interested members of the Company and it was a private settlement between the two parties, hence, it can be legally binding in nature. But the question arises of as to what is the legal status of the MoU between two Private Parties. In these kinds of cases, the primary thing is that for an MoU to be legally binding, it shall be sufficiently clear and certain.

Enforcement of MoUs- Enforceability of MoUs depends upon the intentions of the parties, as we have already discussed. If the MoUs agreed by the parties fulfils the conditions prescribes under the Indian Contract Act, then it is considered to that it can be enforced under Specific Relief Act. Moreover, doctrine of estoppels can be helpful for the enforcement of the MoU.

Confidentiality in MoUs- There is a term in MoU, which is known as Survival Clause i.e. whatever shared or stated confidential in MoU will be confidential in nature. Even if the MoU is unsuccessful in transforming into a full-fledged contract, the confidentiality clause will still be applicable upon the parties. If one of the parties default in keeping the confidential information undisclosed then the other party can claim on the basis of breach of confidentiality clause in MoU.

Conclusion- It is now clear that the MoU is, though, prima facie is not legally binding, it solely depends upon the intention of the parties and negotiation takes place between the parties. It can also be said that it is partly binding and partly non-binding in nature. Moreover, whether MoU will be binding or not can be decided by the Court by looking into the contents of the contract.

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Plea on rent Act’s legality, Delhi HC seeks property list

NEW DELHI: The Delhi high court wants to know the number of properties under rent control in the city. Last week, a bench of Justices B D Ahmed and Sanjeev Sachdeva sought such a list from the Centre and state government.

HC is hearing a petition challenging the legality of the Delhi Rent Control Act on the ground it is an archaic peace of legislation violating fundamental rights of landlords.

While seeking records of the properties, located mostly in prime areas of the city, the landlords who own them receive a pittance of rent as the DRC Act 1957 places a bar on increasing rent from tenants, the court remarked it seems "tenants are smiling and landlords are crying" because of the law.

Appearing for an association of women landlords, advocate Shobha Aggarwal also drew the court's attention to a chart of minimum wage rate in Delhi.

She pointed out that about 50% of properties under rent control fetch a monthly rent less than even the daily minimum wage of an unskilled worker pegged at Rs 353 per day.

The petitioners also claimed that municipal corporations have admitted many properties in City Zone, Sadar Paharganj Zone, Karol Bagh Zone and Civil Lines don't pay tax. While the owners cannot afford to pay the tax as the rent received is negligible, the tenants also refuse to pay fearing that once they pay house-tax the property may come out of rent control.

The landlords claimed one of the culprits for financial crises of the corporations is their failure to extract house tax from such properties. They have alleged that tenants protected under the Act are determined by historical accident and not by need due to the peculiar nature of the legislation. "In fact, the poor are not getting any benefit out of the Act."

The petitioners had earlier argued that even after the 1988 Amendment, the object of expediting disputes between landlords and tenants was not achieved and cited a chart showing that, as of December 2014, 10.15% of all civil cases pending before the district courts in Delhi were as a result of the DRCA.

5 Things to know before purchasing a house or flat from the builder

Are you planning to buy your dream house? Have you made the final choice for your ideal home and just left with signing of the house agreement? Is your home loan approved? Are you also done with all the other major formalities?

If the answer to the above questions is a yes, which makes you think that half of your burden is gone and the things ahead will go on in a smooth and orderly fashion, then you actually need to rethink.

I say this because, even with the major work done, one still has the big task of protecting his/ her dream coming true, from the legal traps of the builder. In such a scenario, some points that need to be remembered and certain measures that should be taken against those tricks.

Actual selling price of the house: According to the property agreement, the buyer is required to bear the purchase price of the house. This cost includes the utility expenses such as water, electricity, parking, various taxes levied, and registration costs too, at times. The builder might also impose certain extra charges on any of these thereafter.

Alert Tips:

One should read the agreement thoroughly and check for all details in the agreement including all the charges applicable.

Get the agreement verified by a lawyer for any hidden charges, and get the same rectified (if any).

In case of builder asking for altering the original plan, ask for the approval from the government authorities in the form of a sanction letter.

Actual size of house:

In your house agreement, the size of the house is clearly stated, but it will also contain a clause stating that the plans, design and specifications to be temporary, with the developer reserving the sole right to make any changes. So, you never know if you will actually get the same size for which you agreed upon.

Watchful Tips:

It is suggested to do some research on the builder’s earlier projects, before going further with any kind of deal.

It will also be beneficial to have a discussion with other buyers, who have already got the possession, about the kind of problems faced by them.

One can also try to include a clause from his side in the agreement about the minimum and maximum size beyond which the size cannot be increased or decreased by the builder.

The Carpet Area:

The area of an apartment excluding the wall area is termed as the carpet area. This is the area where the carpet can be laid. Then, there is the built-up area which includes area of walls and the balcony, and the carpet area. This built-up area, along with common areas such as lifts, lobby, staircase, gardens, pool, etc. is termed as the super built-up area.

Tips:

Always buy a property based on its carpet area.

Always ensure that area is mentioned in the agreement papers.

Try and include a clause for contract termination, in case builder provides a house with a lesser carpet area than mentioned in the contract.

Possession Date:

The agreement will generally have a tentative date of house possession. Although, there have been instances where the possession date mentioned has been delayed for more than a year.

Tips:

Check the construction progress often, and in person.

If you find the progress slow compared to what it should have been, which might delay your possession date, one can always pressurize the builder.

Also, forming a society with other buyers might also help in getting the things speed up at the builder’s end.

Certificate of Completion:

The builder is also supposed to provide a completion certificate, while handling the house to you. This certificate is issued by the municipal authorities, which is an establishment of the compliance with the approved plan. This certificate is required for house registration and other legal formalities.

Tips:

Always ensure that the agreement either states about the certificate or has a clause stating the builder’s liability to provide the certificate.

If the builder delays in the process of providing the certificate, do pressurize him with other buyers.

Apart from the above mentioned, there are also certain other things that needs to be taken care of, such as: management of society, construction material quality and durability, etc. which should be clarified with the builder before making any agreement.

For this purpose, one can even try adding certain clauses in the agreement for the builder to agree to your demands. Also, because there is no industry regulator for such constraints, the best way to handle such issues is to remain alert and aware of your requirements and acquisitions.

The author is Ramalingam.K an MBA (Finance) and certified financial planner. He is the Director & Chief Financial Planner of holistic investment planners​ (www.holisticinvestment.in) a firm that offers Financial Planning and Wealth Management. He Can be reached at​ ramalingam@holisticinvestment.in

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