The Jungle, the Fairy, and the Ballot Box
“The Fairy and the Freebie: How Easy Comfort Weakens a Nation” As soon as Election comes every political party starts disbursing money to the voters. Some offer monthly Rs.70,000/- some offer. The taxpayer is a mute spectator. I will tell you story of a Jungle. The Story of the Jungle Once upon a time, there was a beautiful jungle where all the animals lived peacefully. They worked hard to find their food by hunting and gathering. They shared with one another and cared for each other. The jungle was full of love, cooperation, and happiness. All the animals helped one another and took responsibility for their lives. They were strong, active, and independent. One day, a fairy came to the jungle. She had a magic wand. By waving her wand, she started giving food and water to all the animals and birds. At first, everyone was happy. But slowly, the animals became lazy. Since food was easily available, they stopped working and hunting. They spent most of their time sleeping and eating. Over time, they even found it difficult to walk and run because they were no longer active. After a few months, a hunter entered the jungle. He began hunting the animals recklessly. Earlier, the animals were brave and skilled at escaping or fighting back. But now, because they were weak and lazy, many of them were easily caught in traps. Many animals were hunted. Fear spread throughout the jungle. The King of the Jungle called a meeting. All the animals gathered and discussed what had gone wrong. They realized that the fairy had been sent by the hunter to make them weak and dependent. Because of her magic, they had lost their strength and alertness. They decided to send the fairy away from the jungle. After the fairy was deported, the animals slowly returned to their old habits. They started working hard again, hunting, sharing, and taking care of one another. Soon, the jungle became peaceful and happy once more. Moral of the Story Easy comfort can make us weak. Hard work and self-reliance make us strong. ____________________________________________________________ Freebies and Constitution The legality of election “freebies” in India hinges on balancing Directive Principles (social welfare) with fiscal responsibility under the Constitution. While critics argue they constitute bribery and misuse public funds (violating Art. 266, 282), the Supreme Court in The S. Subramaniam Balaji v. Government of Tamil Nadu (2013) case is a landmark Supreme Court of India judgment regarding electoral freebies. The Court ruled that pre-poll promises in election manifestos do not constitute a “corrupt practice” under Section 123 of the Representation of People Act, 1951, as they are part of a party’s agenda, not individual bribery. The judgment established a distinction between election promises for public welfare and the direct bribery of voters. However, it has been criticized for failing to curb the growing culture of “freebie politics” that threatens state finances. Latest View of Supreme Court: TAMIL NADU POWER DISTRIBUTION CORPORATION LIMITED Vs UNION OF INDIA | W.P.(C) No. 158/2026 Currently the view of Supreme Court has changed its view. In the above matter CJI Suryakant said […]
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“RERA in India: Repeal or Reform?
SHOULD RERA BE REPEALED? Why we are discussing this topic? The Supreme Court in THE STATE OF HIMACHAL PRADESH vs. NARESH SHARMA| SLP(C) No. 005835 – / 2026 CJI Surya Kant said It is high time that all the states should revisit and rethink constituting this authority,” The CJI further remarked that the RERA was not doing any other services except to facilitate builders in default. Let’s study pros and Cons. RERA is useful and effective: The Real Estate (Regulation and Development) Act, 2016 (RERA) brings accountability, transparency, and efficiency to the Indian real estate sector, primarily protecting homebuyers. Key benefits include mandatory project registration, standardized carpet area definitions, 70% of funds kept in an escrow account to prevent diversion, guaranteed timely delivery, and a 5-year defect liability period. Major Positive Points of RERA: Transparency and Disclosure: Promoters must disclose project plans, layout, land title status, and timeline on the RERA website, giving buyers access to verified information. Protection of Funds: Developers are required to deposit 70% of all project funds into a dedicated bank account, ensuring money is only used for that specific project, reducing insolvency risk. Standardized Carpet Area: RERA eliminates confusion by defining “carpet area” clearly, ensuring buyers pay only for the actual usable space, not for common areas or super built-up areas. Builders were selling units/galas/flats even on Super Built Up basis. Timely Delivery and Penalties: Projects must be completed on time. If a developer delays possession, they are liable to pay interest on the amount paid by the buyer, matching the interest rate for buyer default. Defect Liability Period: Builders are responsible for rectifying any structural defects or quality issues reported within 5 years of possession at no extra cost. Reduced Fraud and Misleading Ads: All advertising must adhere to the registered project details. False promises or misleading marketing can lead to penalties. Redressal Mechanism: RERA authorities provide a fast-track, organized, and legal mechanism for settling disputes between buyers, developers, and agents. Consent for Changes: Developers cannot change plans or structure without the consent of two-thirds of the homebuyers. Concluding Notes: RERA has significantly improved buyer confidence, increased project efficiency, and bYes—**before the introduction of RERA in India**, this kind of malpractice was unfortunately quite common in the real estate sector. ROLE OF REAL ESTATE REGULATORY AUTHORITY (INDIA) Before RERA came into force (around 2016–2017), there was no strong centralized regulator, which allowed many builders to exploit buyers. What Used to Happen Before RERA Blank or Incomplete Agreements Builders often made buyers sign blank or partially filled agreements Later, terms were changed without the buyer’s consent. Buyers had little legal protection. Multiple Sales of the Same Flat. Blank document was signed and genuine buyer in possession was not aware of the same. Some builders sold **one flat to 5–10 people** using: Duplicate allotment letters Fake agreements Backdated documents Especially common when buyers paid in cash or instalments. Mix of Investors and Loan Buyers: Builder was taking loans from investors in cash against blank agreement. Such funds were cash. Investors were given early “soft bookings” without registration. Genuine buyers took bank loans […]
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CAN A HOUSING SOCIETY SELL TDR TO A PRIVATE MEMBER OF THE SOCIETY UNDER DOCUMENT OF MEMORANDUM OF UNDERSTANDING AND RESOLUTIONS?
JURISDICTION OF CO-OPERATIVE COURT AND BINDING NATURE OF SOCIETY RESOLUTIONS Let us first see what is TDR? Transferring Development Rights (TDR) by a housing society involves the society, as a landowner, generating extra buildable area (TDR) by surrendering land for public use (like roads, parks) to the municipality, receiving a TDR certificate (or Development Right Certificate – DRC), and then selling these rights to a developer or another party to build more than standard Floor Space Index (FSI) allows, benefiting both the society (compensation for land) and the buyer (extra construction rights). This process helps fund infrastructure projects and allows societies to get value for reserved plots, making TDR a crucial tool in urban development, especially in places like Mumbai. How it Works for a Society: Land Surrender: The housing society owns land, often designated for public amenities (e.g., a playground, road widening) by the city. TDR Generation: Instead of cash compensation, the Municipal Corporation (like MCGM in Mumbai) issues a TDR certificate (DRC) to the society, representing the Floor Space Index (FSI) potential of the surrendered land. Selling the Rights: The society can then sell this certificate to a builder or another property owner. Utilisation: The buyer uses the TDR to construct additional built-up area on their own plot, exceeding the normal FSI limits, often in a designated “receiving zone”. Benefits of TDR for Societies Financial Compensation: Provides funds for the society (often through developers) without the government paying cash, allowing land acquisition for public projects. Development Incentive: Encourages development and helps resolve land reservations, as owners get value for undevelopable land. Legal Avenue: Offers a way for societies and trusts to utilize or sell their development potential POINT OF CAUTION: A Housing Society cannot legally sell Transferable Development Rights (TDR) to a private member using only a Memorandum of Understanding (MoU) and Resolutions. TDR transactions must follow a formal, regulated process involving proper documentation and approval from the competent authorities to be legally valid. Legal Requirements for TDR Transfer : TDR is a formal legal instrument: TDR is an official development right issued by a municipal authority as a Development Right Certificate (DRC). This certificate is a tradeable commodity, similar to a stock, in a formal market. Formal Agreements are Required: Any transaction involving the sale or transfer of TDR requires a registered agreement, such as a formal TDR Sale Agreement, not just an MoU or simple resolutions. The agreement must be registered under the Registration Act, 1908. Statutory Compliance and Oversight: The transaction must comply with the relevant state laws, such as the Maharashtra Regional and Town Planning (MRTP) Act, 1966, and local Development Control Regulations (DCRs). Regulatory Approvals: The transfer must be registered with the Sub-Registrar and updated on the relevant municipal or urban local body’s (ULB) online TDR portal (if available). Authorities track the chain of ownership and usage of TDRs to prevent misuse and ensure transparency. Transparency and Fair Value: Transactions by a housing society, especially those involving a private member, are subject to scrutiny to ensure the society receives fair market value and to prevent irregularities or fraud. Risks of Using Only […]
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“LEGAL IMPLICATIONS OF UNTRACEABLE SELLERS AND OWNERS IN HOUSING SOCIETY SHARE TRANSFERS”
Today we are discussing very important issue of transfer of shares in a society when a seller is not traceable and when Owner is not traceable. What is the difference between the two? Before going to the core issue let us first learn definition of the term “member” under the Maharashtra Co-operative Society Act 1960 and the Bye-laws. Bye-Laws 3 (xxiv) “Member” means a person joining in an application for the Registration of a Cooperative Housing Society which is subsequently registered, or a person duly admitted to Membership of a Society after Registration and who holds the right, title and interest in the property individually or jointly; Share Capital: a.) A Share Certificate, prescribed in bye-laws, bearing distinctive number and indicating the name of the Member, the number of shares issued and the value paid there on, shall be issued by the Society to every Member for the shares subscribed by him, within a period of six months of the allotment of the shares. Conditions of Membership: 19. An individual / applicant who is eligible to be the Member and who has applied for Membership of the Society in the prescribed form, may admitted as Member by the Committee on complying with the following conditions :- i. applicant has fully tendered the value of at least Ten shares of the Society, along with his Application for Membership; ii. applicant has paid the Entrance Fee of Rs. 100/-, along with the Application for Membership; iii. applicant has submitted the application as prescribed, of the particulars in regard to any house, plot or flat owned by him or any of the Members of his family, anywhere in the area of operation of the Society; iv. applicant has submitted undertaking in the prescribed form to the effect that he shall use the flat / unit for the purpose for which it was purchased by him; v. applicant has furnished an undertaking in the prescribed form, if he / she has no independent source of income; vi. applicant has submitted, along with the application for Membership of the Society, a certified copy of the agreement, duly stamped and registered entered into by him / her/ them with the Promoter Builder or Transferor under Section 4 of the Maharashtra Ownership of Flats Act;applicant has furnished such other undertakings/declarations, in the prescribed forms as are required under any law for the time being in force and such other information as is required under the Bye-laws of the Society along with the application for Membership. viii. In case of Societies registered under the jurisdiction of special planning Authority like CIDCO / MHADA / SRA / MMRDA etc. the applicant should be eligible person as per the provision of respective Act and the directives of the Govt. / the Planning Authorities, if any. Note : The conditions at (iii), (iv), (v), and (vii) above shall not be applicable to the Promoter Builder, applying for Membership of the Society, in respect of the unsold flats. An Individual, a Firm, a Company or a Body Corporate, registered under any Law for the time being in force, who/ which is eligible to be an Associate Member and who/which shall […]
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CRITICAL ROLE OF TITLE CLEARANCE IN REDEVELOPMENT
In a redevelopment project, it is highly recommended to verify and clear the property’s title first before formally deciding on and appointing a builder. While a builder can be tentatively selected (e.g., via a Letter of Intent or a resolution in a Special General Body Meeting), formalizing the development agreement and starting the actual project activities (like demolition or construction) without a clear and marketable title creates significant legal and financial risks. Why Title Clearance is Crucial First Legal Requirement: For a builder to obtain necessary municipal approvals and a Commencement Certificate (CC) to begin construction, the society must generally have a clear and marketable title to the land. This is often achieved through a registered conveyance deed or “deemed conveyance”. Risk Mitigation: Unclear land titles are a common source of delays and litigation in redevelopment projects. Title disputes can halt the project indefinitely, leaving both the builder and the society members in a precarious situation (e.g., displaced and without their new homes). Financial Safeguard: A clear title ensures the project is legally sound and makes it easier for the builder to secure project financing and for future buyers in the free-sale component to get home loans. This financial stability is a key factor in a project’s success. Transparency and Trust: Conducting thorough legal due diligence, including title verification, at an early stage demonstrates transparency and helps build trust between the society members and the chosen developer. Recommended Order of Operations (General Steps) Initial Decisions & Structural Audit: The society discusses redevelopment and conducts a structural audit to determine feasibility. Appoint Professionals: An architect/Project Management Consultant (PMC) and a legal advisor are appointed to guide the process. Title Verification/Conveyance: The society’s legal team conducts comprehensive title verification and works to obtain a clear conveyance deed or deemed conveyance for the property. Builder Selection: Once the title is confirmed, a transparent tendering process is used to select a reputable builder with a proven track record, financial stability, and relevant experience. Formal Agreements: A detailed Development Agreement (DA) and individual Permanent Alternate Accommodation Agreements (PAAA) are meticulously drafted, vetted by legal experts, and registered. Project Commencement: The builder then seeks the required approvals (IOD, CC, etc.) and begins construction. Prioritizing title clearance helps safeguard the interests of all stakeholders and ensures a smoother, legally compliant redevelopment process. HOW FAR A CERTIFICATE OF TITLE BY A SOLICITOR/ ADVOCATE IS SIGNIFICANT? In Ramniklal Tulsidas Kotak And Others vs Varsha Builders And Others on 26 August, 1991 Equivalent citations: AIR1992BOM62, AIR 1992 BOMBAY 62, (1993) MAH LJ 323, (1992) 2 BANKCAS 441, (1992) 2 BOM CR 492 “(1) A Certificate of Title need not necessarily be unconditional or unqualified. It can be qualified to the limited extent of the implied statutory exception contained in Section 3(2)(b) of the Maharashtra Ownerships Flats Act, 1963, as interpreted above. The Format of the Certificate of Title prescribed by the rules is mandatory, subject only to a limited scope for adaptability as explained in the judgment. A qualified certificate of title must furnish all relevant information as set out in paragraph 19 of this judgment. (2) The Promoter must […]
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Ownerless Property and State Claims: Bona Vacantia, Escheat, and Evacuee Property in India and Beyond
In India, Bona Vacantia (meaning “ownerless goods”) is the legal doctrine where property without a rightful owner reverts to the State. This principle is primarily codified under Article 296 of the Constitution of India. CONSTITUTIONAL FRAMEWORK (ARTICLE 296) Article 296 dictates how unclaimed property is distributed between the Union and the States: Vesting in States: Property located within a State that lacks a rightful owner (due to escheat, lapse, or bona vacantia) vests in that particular State Government. Vesting in the Union: Property located outside any State (such as in Union Territories) or property that was under the control of the Central Government at the time it became ownerless vests in the Union Government. It reads as under: Article 296 in Constitution of India Property accruing by escheat or lapse or as bona vacantia Subject as hereinafter provided any property in the territory of India which, if this Constitution had not come into operation, would have accrued to His Majesty or, as the case may be, to the Ruler of an Indian State by escheat or lapse, or as bona vacantia for want of a rightful owner, shall, if it is property situate in a State, vest in such State, and shall, in any other case, vest in the Union: Provided that any property which at the date when it would have so accrued to His Majesty or to the Ruler of an Indian State was in the possession or under the control of the Government of India or the Government of a State shall, according as the purposes for which it was then used or held were purposes of the Union or a State, vest in the Union or in that State. Explanation. –In the article, the expressions “Ruler” and “Indian Slate” have the same meanings as in article 363. Article 363 in Constitution of India provides as under: Bar to interference by courts in disputes arising out of certain treaties, agreements, etc. (1) Notwithstanding anything in this Constitution but subject to the provisions of article 143, neither the Supreme Court nor any other court shall have jurisdiction in any dispute arising out of any provision of a treaty, agreement, covenant, engagement, sanad or other similar instrument which was entered into or executed before the commencement of this Constitution by any Ruler of an Indian State and to which the Government was a party and which has or has been continued in operation after such commencement, or in any dispute in respect of any right accruing under or any liability or obligation arising out of any of the provisions of this Constitution relating to any such treaty, agreement, covenant, engagement, sanad or other similar instrument. (2) In this article— (a)”Indian State” means any territory recognised before the commencement of this Constitution by his Majesty or the Government of the Dominion of India as being such a State; and (b)”Ruler” includes the Prince, Chief or other person recognised before such commencement by his Majesty or the Government of the Dominion of India as the Ruler of any Indian State. How and when it works: When property is identified as ownerless, […]
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Understanding Bill No 193: Reforming Inheritance Laws in India
Government of India has proposed to delete Sec 213 from Indian Succession Act 1925. It was learnet that Probate is optional for all others except Hindus,Jain,Sikh and Baudh. To have parity under Constitution it was proposed in 2008 by 209th Law Commission to delete the said provision. Present Government is now implementing the same. For details and consequences read the blog
Read moreSELF REDEVELOPMENT
SELF REDEVELOPMENT AUTHORITY PLANNED REDEVELOPMENT – SUGGESTIONSThe government of Maharashtra is actively pursuing the establishment of a dedicated Redevelopment Oversight Authority. This body would function as an independent authority to regulate, streamline, and monitor all types of redevelopment projects across the state, with a specific focus on increasing transparency and resolving disputes.A suggestion was floated by writer of this blog. It is now under consideration.Moving forward what are suggestions? Establishment of a judicial body with judicial powers to monitor and resolve issues including of title of land (which is not with RERA); If government is of the opinion that right of civil court will be ousted, then Development Authority must be empowered to refer the issue to Civil Court. Key Details and Objectives Scope: The proposed authority would have specialized jurisdiction over all redevelopment projects, including those initiated by private developers, self-redevelopment schemes by cooperative housing societies (CHS), cluster redevelopment, and Slum Rehabilitation Authority (SRA) projects. Aims: The primary goals are to accelerate project timelines, enhance accountability, and provide regulatory clarity, addressing common challenges like bureaucratic delays, opaque agreements, and litigation that often stall projects. Functions: Streamlined Approvals: Act as a single-window clearance mechanism to facilitate faster project sanctions. Monitoring and Compliance: Monitor project progress using technology-enabled reporting and enforce penalties for undue delays. Dispute Resolution: Serve as a quasi-judicial body to mediate and resolve conflicts between residents, developers, and planning authorities. Standardization: Standardize procedures for project planning, developer selection, and financial approvals Current StatusThe state government has already established a separate Self Redevelopment Authority (SRA, distinct from the Slum Rehabilitation Authority) to specifically promote and expedite projects undertaken by housing societies themselves, appointing a chairman for the new body. The broader, overarching Redevelopment Oversight Authority for all project types is currently in the planning stage, with high-level committees having submitted reports recommending its formation.This initiative is expected to have a significant impact on urban areas like Mumbai and Pune, where aging buildings and high demand make redevelopment a critical part of the urban growth strategy. Maharashtra’s Self-Redevelopment Rules, guided by Government Resolutions (GRs) from 2019 and subsequent amendments, enable housing societies to redevelop buildings over 30 years old, offering benefits like extra Floor Space Index (FSI) and incentives, requiring society ownership, member consent (typically 70%+), appointing experts (PMC, Architect), and securing loans via banks like MDCC Bank, streamlining approvals with a single-window system for transparency, but necessitate adherence to Maharashtra Cooperative Societies Act rules.Key Eligibility & Requirements: Age: Building must be 30+ years old. Ownership: Society must own the land (Conveyance Deed) or have a valid purchase agreement. Registration: Must be registered under the Maharashtra Cooperative Societies Act, 1960. Consent: At least 70% member consent is generally needed for major decisions. Audit: Societies need ‘A’ or ‘B’ audit class for loans. Benefits & Incentives: Extra FSI/TDR: Societies get 10% more FSI/incentive space than usual. Reduced Costs: Lower premiums, taxes, and charges. Single Window: Streamlined approvals via a nodal agency. Process Overview: Formation: Society decides on self-redevelopment. Appointment: Appoint Project Management Consultant (PMC), Architect, Legal Advisor. Approvals: Secure initial permissions (IOD/LOA) at society cost. Loan: Apply to banks like Mumbai […]
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पुनर्विकास परियोजनाओं के लिए न्यायिक निकाय की आवश्यकता
पुनर्विकास परियोजनाओं के लिए न्यायिक निकाय की आवश्यकता आज हम बात करेंगे एक बहुत क्रिटिकल मुद्दा है रीडवलपमेंट। रीडवलपमेंट फंडामेंटल राइट, आर्टिकल 300 ए, गाइडलाइन 79 ए और मैनेजिंग कमेट। अब हम आगे बढ़ते हैं। उसके पहले मैं आपसे निवेदन करूंगी कि मेरे यह चैनल को लाइक, सब्सक्राइब और शेयर कीजिए क्योंकि यह फ्री ऑफ कॉस्ट है और आपको यह जो है मुद्दे वो आपके जनरल पब्लिक के काम में आते हैं वैसे मुद्दे हैं। चलो आगे बढ़ते हैं हम रीडवलपमेंट में। रीडवलपमेंट एक बहुत हॉट केक है और ये हर एक तीसरा बिल्डिंग रीडवलपमेंट में जा रहा है। सही बात है। जैसे हमारी लाइफ है तो हम यह जैसे हमारे हिंदू शास्त्रों में लिखा है कि हम शरीर छोड़ के हमारा आत्मा नए शरीर में जाता है और नया जन्म लेता है। तो जो इधर है उसको नया जन्म लेना ही पड़ता है। तो वैसे ही अगर बिल्डिंग पुराना हो जाए तो उसको नया बनाना पड़ता है। तो उसके लिए सबसे पहले जो मूवमेंट शुरू हुई थी वो आइलैंड सिटी ऑफ मुंबई से हुई थी क्योंकि सारे के सारे जो पुराने बिल्डिंग्स थे जो चॉल्स थी वो मसून के सीजन में कॉलेज हो जाती थी उसके लिए कोई कानून नहीं थे और मुरली देवरा जो हमारे बहुत वरिष्ठ नेता थे उन्होंने एक कानून लाया और रीडवलपमेंट ऑफ डाई लेपिटेटेड बिल्डिंग्स। तो इसके तहत उन लोगों को काफी सुविधा मिली और यह शुरुआत में जो थी वो सेस बिल्डिंग के लिए थी और वो चर्च गेट्स कुलाबा से लेके बैंड्रा तक एप्लीकेबल थी। धीरे-धीरे 1991 आया जो डीसीआर 1991 डेवलपमेंट कंट्रोल रेगुलेशन 1991 आया और उसके अंदर सारे प्रावधान किए गए। माड़ा की लैंड को रीडवलप कैसे किया जाए? स्लम को कैसे रीडवलप किया जाए? आर्मी वाली जो है पुलिस हेड क्वार्टर्स कैसे डेवलप किया जाए? बीएएमसी की जो प्रॉपर्टीज है उसको कैसे डेवलप किया जाए? और जो हाउसिंग सोसाइटी है उसे कैसे डेवलप किया जाए? यह सारे प्रावधान मैंने अपनी बुक कमेंट्री ऑन डेवलपमेंट कंट्रोल रेगुलेशन 1991 जिसकी 15 एडिशंस आ चुकी है आई थी वो उसके अंदर हमने मैंने डिस्कस किया है। आगे बढ़ते हैं 1991 के बाद क्या हुआ? इसके बाद 2009 के तहत एक 79 ए का गाइडलाइंस आया। यह गाइडलाइंस थी कोऑपरेटिव सोसाइटी क्योंकि मेजरिटी जो रीडवलपमेंट है वह कोऑपरेटिव हाउसिंग सोसाइटी जो अभी लागू होता है पूरे बंबई में और इसके तहत थर्ड जनवरी 2009 में एक गाइडलाइंस आई वो गाइडलाइंस के तहत रीडवलपमेंट के प्रोजेक्ट्स तैयार करने होते थे मैनेजिंग कमेट को इसके अंदर बहुत सारी कंप्लेंट्स आई कि जो मैनेजिंग कमेट है वह रीडवलपमेंट प्रोसेस में मेंबर्स को कॉन्फिडेंस में नहीं लेती। ट्रांसपेरेंसी नहीं है। आर्बिटरी अपॉइंटमेंट्स होती है। बिजनेस जो होता है वह कंडक्टिंग बिजनेस मतलब कि वह चाहे एजीएम हो, एसजीएम हो तो वो लोग सही जवाब नहीं देते हैं। ऐसे करली बिहेव करते हैं जैसे वो लोग जमींदार है और बाकी के जो फ्लैट ओनर्स हैं वो उनके स्लेव्स है, टेनेंट्स हैं। तो ऐसे भी बिहेव करते हैं और वो लोग वीडियो उतारते हैं तो वीडियो वो लोग शेयर नहीं करते हैं मेंबर्स के साथ में क्योंकि वो अपने पास ही रखते हैं। रजिस्ट्रार में जाते हैं तो वो […]
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CAN SUPREME COURT IMPOSE TIME LIMIT UPON PRESIDENT OF INDIA OR GOVERNOR OF STATE FOR SIGNING BILL? DISCUSSION AND SUGGESTIONS.
Background: The Legislature for the State of Tamil Nadu, between 13.01.2020 and 28.04.2023, enacted and forwarded 12 Bills to the Governor for the grant of assent as per Article 200 of the Constitution. Even though the present Governor took charge of the office with effect from 18.11.2021, he did not take the necessary action on any of the said Bills forwarded to his office till October 2023. The State of Tamil Nadu, being aggrieved by the inaction on the part of the Governor, had to ultimately file the present writ petition before Court. The same was filed on 31.10.2023. The State Legislature, on 18.11.2023, convened a special session and repassed the 10 bills which were returned by the Governor after withholding of assent. The bills were passed without any material change and were forwarded to the Governor’s Secretariat on the same day for his assent in accordance with the first proviso to Article 200. This Court, in its order dated 20.11.2023, noted that since the re-passed 10 bills were pending with the Governor, the hearing of the writ petition be adjourned to 01.12.2023 and issued directions that this Court shall be apprised of the progress in the matter. On 28.11.2023, the Governor, without the aid and advice of the Council of Ministers of the State, in exercise of his discretion, reserved the said re-passed Bills for the consideration of the President. The letter of the Governor to the Union Government referring the said Bills for the consideration of the President mentioned that the Bills were re-considered and passed again by the State Legislature. Interestingly, although the Governor noted that the Bills were intra-vires the competence of the State Legislature having been legislated under Entry 66 of List I, Entry 32 of List II and Entry 25 of List III, yet he reserved the said Bills for the consideration of the President in the second round on the ground that the Bills suffered from repugnancy on account of being contrary to Entry 66 of the Union List i.e., List I. These grounds have been taken by the Governor to reserve the 10 Bills for consideration of the President. In the premises Chief Minister asked the Governor to (i) Recall the 10 Bills reserved for the consideration of the President and grant assent expeditiously;(ii) In future, grant assent to Bills passed by the State Legislature within 30 days and avoid unnecessary reservation of the bills for the consideration of the President; (iii) Act in accordance with the aid and advice tendered by the Council of Ministers. Matter went up to the Supreme Court COMMENTS OF AUTHOR Before going into the details of the Judgement, it is not highlighted that even the state government of Tamil Nadu was playing mischief with provisions of the Constitution. Question arises, how? Article 200 of the Constitution provides that if the Bill is returned by the Governor, the State Assembly may re-pass the Bill with or without modification and the Governor cannot withhold the same. (The said Article text is given herein below) Here also, the State Assembly re-passed the Bills without any amendments and without implementing the suggestions […]
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