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LexTalk World Talk Show with Noshir Kumana, Sole Propritor at Kumana & Company



Practicing Solicitor for forty-one years, handling Civil Disputes, Arbitration, Commercial Law, Co-operative Law, Rent Act, Real Estate Law. Arbitrator for twelve years, as sole arbitrator and member of Arbitral Tribunals with retired judges of High Courts and Supreme Court of India in Banking and Finance, Commercial, Insurance, and Real Estate disputes. Handled civil litigation before Consumer Forums, district court at Mumbai, various High Courts at Bombay, Calcutta, Chennai, Jaipur, Delhi, and the Supreme Court of India. Member and Arbitrator for LCIA (Asia Pacific) and Centre for On Line Resolution of Disputes. Recipient of Lex Falcon Global Awards, Singapore 2022.


Interview:


Host: Tell me about a complex legal issue, which you have worked on? Described the complexity and tell us how you approached it ?


Noshir: I have in my forty years of practice come across several complex issues under various Enactments. I have always had an in-depth approach to all such legal issues and I have obtained favorable results for my Clients. I will illustrate one such example of complex legal issues handled by me. One such legal issue is pertaining to the Mumbai Municipal Corporation Act regarding levy of Property Tax on various properties. Property Tax is calculated by the Corporation based on Ratable Value of the property, which is fixed as per the provisions of Section- 154 of the Mumbai Municipal Corporation Act. Section-154 prior to its amendment on 26.8.2010 provided that Ratable Value is fixed based on the Annual Rent for which such premises / property are reasonably expected to be let out from year to year (Annual Rack Rent).My Client as the owner of a building had created tenancy of several premises in the building. The Tenants in turn with the consent of the Landlord had entered into various Leave and License Agreements in respect of the premises in the building with a Nationalized Bank.


The tenants had got standard rent fixed from Small Causes Court at Mumbai. Till the year 2000 Property Tax in respect of my clients building, was fixed based on the Ratable Value calculated as per Section-154. On 6.1.2001, the Municipal Commissioner issued internal Circulars laying down guidelines for calculating the Ratable value. The guidelines so fixed by the Commissioner under the said Circular were totally contrary to the provisions of Section-154. The Assessing Authority of the Corporation relied solely upon the guidelines issued in the internal circulars and passed orders and issued Demand Notices on my Client demanding an increase in the Property Tax.


I filed a Writ Petition in the Bombay High Court challenging the increase in property Tax. The main legal issues raised in the said Writ Petition were that the Commissioner had no authority under law to issue internal circulars for calculating Ratable value contrary to the provisions of Section-154. It was further pleaded in the said Writ Petition that the fundamental right guaranteed to my client under the Constitution of India has been infringed upon by the Corporation by issuing internal circulars, which are contrary to the provisions of Section-154 of the Act. The Hon’ble High Court after hearing my submissions, admitted the Writ Petition and passed interim Orders restraining the Corporation from collecting the increased Property Tax as per the Demand Notice issued by the Corporation.


Based on the success of my Writ Petition, several other Writ Petitions were filed by various parties challenging the increase in the Ratable value of their properties. All these Writ Petitions including my Writ Petition were clubbed together and finally heard and disposed off by a common Order. The Hon’ble High Court by the said Order set aside the assessment made by the Corporation based on the internal circular and Ordered the Corporation to re- calculate the ratable value as per the provisions of Section-154 of the Act.



Host: The Pandemic saw some Courts being moved towards remote proceedings and availability. Is this sustainable and a possible way to increase access to Justice ?


Noshir: In the Pandemic due to virtual proceedings, Justice was accessible as people from various locations had access to the Courts, without having to physically travel. As far as sustainability is concerned while technology is now remotely accessible, there are still many glitches which require to be overcome such as availability of internet connectivity, low band width causing disruptions in internet connections, lack of computer literacy. On the one hand there is a need for proper infrastructure for providing wider and stable internet connectivity, more computer literacy, is the need of the hour to make easy availability and use of virtual proceedings sustainable in the long run.


On the other hand, appreciable efforts have been made by the judiciary in this direction, by establishing an E-Governance Center at Nashik, which is a dedicated Center for lawyers to appear virtually and have on line access to various provisions of law and to provide training to Advocates. The Supreme Court of India has recently made it possible for providing live recording of Court Proceedings, thereby increasing accessibility to legal proceedings to the litigants and the Advocates.



Host: How would you rate the current legal system’s drive towards encouraging access to justice? Is there a tangible movement enclosing the Justice gap?


Noshir: A conscious effort is being made by our Judiciary for making Justice easily accessible by establishing E- Governance Centers, recording live Court Proceedings in the Supreme Court, providing online access to Judgments of various High Courts and the Supreme Court. However much still requires to be done for achieving easy access to Justice. The main issues, which are required to addressed by the Judiciary are shortage of Judges in various Courts and Tribunals, which is causing backlog of the pending cases, more intensive training is required to be provided to Judges and Judicial Officers for faster and more efficient implementation of Justice.


Several initiatives have also been taken by the Ministry of Law and Justice, such as establishment of separate commercial Courts in all the High Courts in the Country for time bound hearing and disposing off commercial disputes. Amendments have been made to the Arbitration and Conciliation Act, 1996, wherein provisions have been made for fixing a time limit of one year for deciding Arbitration proceedings, providing for fast track Arbitration Proceedings, providing for minimal intervention of Courts in Arbitration proceedings and challenge to Arbitration Awards. Repealing of obsolete and redundant Laws by enacting four Acts, whereby several obsolete statutes have been repealed.

Host: In the era of the legal technology what are the most common tools used by you?


Noshir: The most common tools used by me are Microsoft Word by using the track changes function, it enables me to make real time corrections in any documents, which was otherwise was not possible as I had to depend on a computer operator to retype the full document for incorporating the required changes in the documents.

Google meet/ Zoom have made it very convenient for me to conduct online Arbitration Proceedings, which otherwise required me to physically travel to various locations, where the Arbitration proceedings were been held. Online Arbitration saves travel time and cost.


Gmail makes it very convenient for me to send and receive communications / documents from any place in the World, which otherwise were required to be sent by Post/ Courier. This method saves communication time and cost.


Host: Time is money in any profession and in legal it is most of all. How do you ensure to make the best of your time as the Lawyer?


Noshir: I use several methods by which I try to make optimum use of my time. In the mornings before leaving for my office I go online and update myself on the latest news and legal developments.


I make a daily planner setting out the list of important things to be done and make a conscious effort to complete all the tasks set out in my daily planner.

Every day I keep a separate time slot for viewing and answering Emails.

I make a weekly schedule of Meeting with clients / other brother Advocates.

I conduct virtual Arbitration Meetings and conferences to save travel time.

 

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