Wednesday, August 20, 2014

MISUSE OF SARFAESI ACT 2002

Date:  18-08-2014                                                                                    By email

To, 
Director [BO-I, Recovery & OL]
Dept of Financial Services
MoF, Govt of India, New Delhi
dirrec-dfs@nic.in
                        Suggestion: Amendment to SARFAESI ACT 2002

             Section 31.h of The Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 provides that this act will not be applicable to any security interest for securing repayment of any financial asset not exceeding one lakh rupees.

            I am witness to a high handed approach of officers of a Public Sector Bank in 2007, where under the above act, a sound service provider availing housing loan of Rs.300000/- and sound service instrument loan of Rs.80000/-, was thrown out of  his flat for an overdue amount of nearly Rs.2500/- . He and his wife with two minor sons were kept out on road for 365 days without business, as sound service instruments [mikes, loudspeakers etc] too were locked in the flat with all house hold articles not financed by bank. The family, 15 year old business and education of two sons were ruined, while banks are mandated to alleviate poverty. This atrocity was inflicted as he did not repeatedly entertain 4 officers of rural branch and zonal office, Rajkot at week-ends with liquor and non-veg – one type of corruption in kind. The officers took disadvantage of his semi-literacy and lack of English knowledge. CMD of the Bank also did not intervene, when approached.

           
            Thus small borrowers are subjected to inhuman recovery process under this act. It is possible that this act may be being misused for extraneous consideration by bank officers in other cases of small borrowers. Big borrowers have battery of advocates to guide them how to ditch the act or middlemen to manipulate bank  officers to avoid effective action for recovery.

            To avoid such horrible misuse, I humbly suggest that amount of one lakh rupees in said section be replaced by five lakh rupees at least. In fact borrowers with loan up to Rs.5.00 lakhs are normally small self-employed entrepreneurs. They must be kept out of clutches of Securitization Act wherein bank officers act like private money lenders or even worst.

            This suggestion is also in tandem with genuine pro-common citizen policy of new BJP govt at Delhi. I hope you will push for such an amendment as part of weeding out obsolete anti-citizen laws and rules.


Yours faithfully,

Tenant Verification/Registration

Date: 20-07-2014                                                                             By email and post

To,
Hon’ble Home Minister,
Ministry of Home Affairs, Govt of India
North Block, New Delhi 110001
Email: 
jscpg-mha@nic.in

Hon’ble Sir,

Subject: Tenant Registration/Verification by Police –Problems and Suggestions

I thank BJP Govt for taking series of steps to make life of common Indians easy when dealing with Govt. I have been witness to real good governance in Gujarat in last one decade.

At present Police Commissioners of various cities in the country issue notifications making it mandatory for landlords to register tenant for verification. These notifications are for short period of 60 days or so. Law abiding citizens face undernoted problems for compliance:

Problems:

1. Notifications are not published on websites of Police Commissioners or State Home Depts. Even short notices are not put in public domain/print media etc nor press note is issued to make citizens aware of notifications. Hence, even educated landlords are not aware of such notifications.

2. Police Commissioners would be perhaps exhibiting notifications on notice boards of their offices/other police stations, which hardly law abiding common men/women dare to visit routinely. Thus there is no effective communication of notifications to those, whom it is applicable for compliance.

3. When landlord is caught by police for non-registration, then only landlord comes to know of such notification, which may be in force at that point in time. This situation is then exploited by police or middlemen.

4. Thus even if a law abiding landlord wants to comply with notification, he is not in a position to do so, due to communication gap from Police to landlords.


5. Retail Corruption may be rampant in this matter at ground level.

6. Notifications are issued in State language and hence landlords not knowing local language fail to understand its contents.

7. At present notifications are issued for area covered by police commissioners of respective cities. Anti-national elements would be residing in nearby villages and towns and frequenting to the cities for which notifications are issued. Thus such notifications become ineffective, while causing hardships to law abiding landlords, generating ill-feeling towards govt and the ruling party. I doubt if such registration would have helped Govt and Police to contain anti-national activities.

8. Few days back, I read in news paper that a poor woman  with cut off legs had to climb 7th or 9th floor of the court building, since she was arrested for renting her house without police registration of tenant.

Suggestions:

I have following suggestions to ease out the problem facing common men:

A] A single notification for entire State [mentioning names of cities] should be issued by Home Department of States or State DGPs, whenever necessary, so that landlords are not required to search for individual cities in the State.

B] Notifications should be placed on websites of home departments of the States or of DGPs offices, with format and procedure for registration.

C] A gist of notifications should be published in two leading news papers of the State in Hindi, English and State language giving link of website for details.

D] Press notes may be issued by Home Departments or DGP offices, so that newspapers can carry news for public information.

E] Notifications should be trilingual – State language, Hindi and English

F] There should be online facility to register tenants relating to State as a whole. At present it is city-wise e.g. Ahmedabad, Pune, Indore etc. From address of property, information can be transmitted by the system to respective City Police Commissioners for necessary action. Online facility should generate printable/downloadable acknowledgements for record of landlords.

G] Social media like face book, twitter etc should be used by home departments of States or police departments to communicate issuance of notifications.

H] Tenants or landlords should not be called to police station but police personnel should visit the rented place for on-the-spot verification.

I] Landlords or tenants should be permitted to use recording devices during visit of police for enquiry.

J] For first instance of non-compliance landlord should be made to comply in a week time and warned, rather than taking punitive action against him. He may not be involved in deliberate defiance of notification, but out of lack of knowledge of such notification being in force.

K] SMSes /emails should be used to communicate to landlords [who have registered with police department as part of e-governance], of issuance of such notifications, if feasible.

L] If possible police should have small notice boards for its public related notifications at places which are frequented by public [like post offices, banks, libraries, some govt offices]. Police/Home department may send such notifications by post to head of such offices for exhibition on police notice boards placed in such offices.

M] It should not be mandatory to get NOC from police department, before renting, since NOC would be inordinately delayed and landlord will rent out without NOC. Just uploading or submitting prescribed details 15 days prior to renting may be sufficient.

I am sure your Ministry will cogitate on my suggestions which are conveyed as part of public participation in governance and issue advisory to States.

Thanking you,


: FRIVOLOUS LITIGATION BY GOVT and PSUs

Date: 08-08-2014                 SUGGESTION                                 By email and post

To,
Hon’ble Minister for Law & Justice
Ministry of Law and Justice, Govt of India
A-Wing, Shastri Bhawan,
New Delhi-110 001
secy-jus@gov.in
anilgulati@hotmail.com

Hon’ble Sir,

Subject: FRIVOLOUS LITIGATION BY GOVT and PSUs –Need of National Litigation Policy


I thank BJP Govt for taking series of steps to make life of common Indians easy when dealing with Govt. I have been witness to real good governance in Gujarat in last one decade.
I humbly make suggestion for improving justice to common Indians less taxing:
National Litigation Policy was published by your predecessor in 2010, but for unknown reasons it could not be implemented. At present govt departments [Central and States] and PSUs [ specially banks and Insurance Companies], go on fighting up to constitutional bench of Hon’ble Supreme Court, against a common Indian. They do so at the cost of public money with no accountability of officers to public. There is hardly any policy or audit or prescribed procedure for taking decisions for filing of endless appeals. Many times it is just ego-massaging exercise of officers. Kick-backs from advocates’ fees cannot be ruled out. The common men get tired of litigation because of cost, time and expertise, in addition to mental tension and agony. Such appeals choke the courts giving rise to delay for decades.


I append below cases where Govt or PSUs went on misusing their financial power at public cost to “legally” crush common Indian:
A] SUPREME COURT OF INDIA
 CIVIL APPEAL NO. 6261 OF 2012
Gurgaon Gramin Bank Versus Smt. Khazani
Judgement dated 04-09-2012

B] SUPREME COURT OF INDIA
SLP (CIVIL) NO(s). 39434 OF 2013
HARYANA DAIRY DEVELOPMENT COOPERATIVE FEDERATION LIMITED v/s JAGDISH LAL
Date of judgement 13-01-2014

C] HIGH COURT OF DELHI
CM (M) No. 1021/2010 & CM No. 14150/2010
M/S National Textile Corporation Limited v/s Sh. Kunj Behari Lal
Judgment delivered on: 16-08-2010

These are tip of the iceberg, since I understand 50% pending cases in various courts and tribunals/consumer commissions are by or against Govt/PSUs. Due to delay in justice delivery, citizens are fast losing faith in judiciary and governments and are tempted to resort to short-cuts adding to illegal activities. Law violators do not care for govt or courts due to horrible delay.

For decades Central Govt has been talking of stopping frivolous litigation by Govt and improving justice delivery, but no effective steps are taken on the ground. I am sure BJP govt. is different and have genuine motive to make life of common Indian easy while seeking justice. I therefore humbly suggest that this Govt should revive NATIONAL LITIGATION POLICY and sincerely implement with necessary changes.

Thanking you


Yours faithfully,

Tuesday, August 05, 2014

SOCIAL AUDIT -CIC DECISION Decision No. CIC/AD/A/2013/000377/VS/07408 Dated 30-07-2014

Date: 31-07-2014                                                                               By email

To,
Chief Information Commissioner,
Central Information Commission,
New Delhi110066
Email: rajiv.mathur@nic.in

Respected Sir,

Subject: Decision No. CIC/AD/A/2013/000377/VS/07408 Dated 30-07-2014 ---Rameshwar Ram, v/s Ministry of Railways
As part of social audit and citizen participation in governance, I happened to peruse captioned decision. Ld. IC has declined supply of copies of 144 caste certificates based on section 7.9 of RTI Act. With a view to improve quality of decisions and making RTI effective and user-friendly, I respectfully point out following infirmities in the said decision:

01. As per section 7.1 of RTI Act, information can be declined only under section 8 or 9 of RTI Act, while Ld. IC has used section 7.9 to deny information.

02. I am attaching a write –up on section 7.9, contents of which will substantiate that the captioned decision is not in consistence with RTI Act.

03. The applicant has not sought caste certificates in any other form than what is available on record.

04. Administrative difficulties for supply of 144 caste certificates cannot be reason for denial. [Ref: Judgement dated 07-01-2010 of Hon’ble High court of Madras in W.P.NO.20372 of 2009 and M.P.NO.1 OF 2009].

05. CPIO was already having list of 144 employees who has submitted caste certificates and hence getting files would not be much time consuming for his staff. He had 30 days time to get photocopies [i.e.5 copies per day]. This could have been done in less than 6 hours of sincere working by a clerk of CPIO office.

06. This decision violates following decisions of CIC and hence principle of precedence is breached:

CIC/SS/A/2012/001370 dated 29.04.2013
CIC/SS/A/2013/000829 dated 15-10-2013
4221/IC(A)/2009- F. No.CIC/MA/C/2009/000195 dated 24-07-2009
CIC/SM/A/2010/001028 dated 30-05-2011
CIC/SM/A/2013/000218 dated 18-06-2013
and also CIC decisions and court judgements mentioned in attached write-up

Thus there is procedural deficiency since previous decisions were not taken into account

07. The captioned decision also violates following judgements:

a. Judgement dated 12-12-2011 of HIGH COURT OF DELHI in LPA 797/2011 -UPSC v/s  N SUGATHAN covering other three writs on the same issue.

b. Judgement dated 23-04-2013 of HIGH COURT OF UTTARAKHAND in Writ Petition No.1814 of 2006 (M/S) -Uttaranchal Public Service Commission Vs. CIC.

c. Judgement dated 04-03-2013 of Punjab & Haryana High Court in CWP No.4239 of 2013 (O&M) - Vijay Dheer vs State Information Commission,

Thus there is procedural deficiency since previous court judgements were not taken into account by Ld. IC


08. Disclosure of certificates and documents is in larger public interest, since very large number of cases have come to light where candidates have sought appointments on the basis of fake or forged documents and certificates. Scrutiny of genuineness cannot be left to govt. officers only. Alert citizens can also check veracity of certificates and documents if supplied under RTI. This will serve larger public interest which over-rides private interest and privacy of recruited employee. I quote from judgement quoted at 7.c supra:

“…….A part of information/documents sought by the complainant, relates to the mode of appointment/promotion of a person on a public post, therefore, Information / documents to that extent fall under the domain of larger public interest. The documents on the basis of which a person has sought an appointment in a public office becomes the documents of larger public interest."

09. It is not in consonance with preamble and legislative intent of RTI Act. It has resulted in gross miscarriage of justice and public welfare. It supports wrong doers at the cost of law abiding public, specially when media is exposing large scale submission of fake caste certificates to grab govt jobs. This decision is encouraging bad governance where public scrutiny is obstructed.

10. In this case worst come worst, inspection should have been allowed, so that the appellant could select few of caste certificates for supply of photocopy.  In that case peon of CPIO could have given 144 files to appellant for inspection. Ld IC could have ordered supply of at least 50 photocopies out of 144, if he came to the conclusion that 144 certificates will divert resources disproportionately. Appellant would have sought remaining certificates by filing separate RTIs in the batch of 25-30 certificates, since he was already having list of such candidates.

11. The decision lacks reasoning and justifications for arriving at the decision to deny information u/s 7.9. There appears to be no meaningful application of mind. Importance of reasons has been repeatedly hammered by higher judiciary and without reasons, orders are nullity as being arbitrary and subjective. Thus there is procedural infirmity on the part of Ld IC.

12. It appears that appellant is employee of Public Authority. Hence he must be in know of fake certificates and wanted to substantiate his unconfirmed information, before lodging complaint with appropriate authority. Thus he was doing national service by exposing those who have grabbed govt jobs belonging to reserved categories on the basis of fake caste certificates.

13. The order trivializes fundamental right of a citizen guaranteed under Constitution.

I have locus standi in this case, since my future requests will be denied on the basis of this decision, as precedence. Candidates recruited based on fake or forged certificates and documents would give rise to bad governance, which may affect many citizens including me. Thus I am affected person like any other citizen who has to be served by public servants.

In case review is not possible, you may use your position as first among equals and ensure that such decisions are not taken in future at least.

I am sure, Ld. IC, keeping in view his stature, legal qualifications and background, would not like to take disadvantage of inability of common appellants to approach High Courts against defective decisions, due to financial, time and expertise constraints. Each decision of CIC is costing nearly 18-20000/- to tax payers and poorest of the poor also pays indirect taxes while buying food. If challenged, such defective decisions of CIC further aggravate pendency of already overburdened higher judiciary.

I humbly quote:


“A citizen is not expected to indulge in futile litigation and endless chase in overcoming technical hurdles and obstacles for seeking information. Public authorities are not obliging him by giving him information because the rule of the day is transparency, accountability in public dealing and public affairs and in relation to public fund.
--- HIGH COURT OF BOMBAY [Shikshan Prasarak Mandali vs. Maharashtra SIC & ors. Writ petition decided on 18.10.2012] [Citation: RTIR I (2013) 234 (Bombay)]


Copy of above decision is enclosed with write-up on section 7.9
Yours faithfully,
J. P. Shah
Copy to: Shri Vijai Sharma, Information Commissioner, CIC Email: vijai.sharma@nic.in

-Kindly cogitate for future decisions in the interest of RTI.