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Sunday, 23 April 2017

The Real Estate (Regulation & Development) Act (RERA) comes into force on 1st May 2017

_Do you know?_

*The Real Estate (Regulation & Development) Act (RERA) comes into force on 1st May 2017?*

_*If you are planning to buy a flat, now should wait till 1st May, when the Real Estate (Regulation & Development) Act (RERA) comes into force*_

This new law is going to reshape the entite real estate sector with the transparency and accountability it brings. *The RERA is expected to benefit the buyers in a huge way*.

Below are the major provisions of the new law which will rein in errant builders:

1. The RERA makes it mandatory for a state to *establish* a *State Real Estate Regulatory Authority*. This government body could be approached for redressal of grievances against any builder.

2. Every ongoing and under-construction project is supposed to come under the regulator's ambit. Registration is mandatory for all commercial and residential real estate projects where the land is over 500 sq m or includes eight apartments. Failure to do so will attract a penalty which may be up to 10% of the project cost, and a repeat offence could land the developer in jail.

3. The developer will have to place 70% of the money collected from a buyer in a separate account to meet the construction cost of the project. This will put a check on the general practice by a majority of developers to divert the buyer's money to start a new project, instead of finishing the one for which money was collected. This will ensure that construction is completed on time.

4. Buyers of apartments which are typically offered for sale before the launch of the project often get ensnared. But not any more. Under the Act, every such phase will be considered a standalone real estate project, and the promoter will have to obtain registration under this Act for each phase separately.

5. The RERA makes it mandatory for developers to post all information on issues such as project plan, layout, government approvals, land title status, sub contractors to the project, schedule for completion with the State Real Estate Regulatory Authority (RERA) and then in effect pass this information on to the consumers.

6. The current practice of selling on the basis of ambiguous super built-up area for a real estate project will come to a stop as this law makes it illegal. Carpet area has been clearly defined in the law.

7. Currently, if a project is delayed, then the developer does not suffer in any way. Now, the law ensures that any delay in project completion will make the developer liable to pay the same interest as the EMI being paid by the consumer to the bank back to the consumer.

8. The maximum jail term for a developer who violates the order of the appellate tribunal of the RERA is three years with or without a fine.

9. The buyer can contact the developer in writing within one year of taking possession to demand after sales service if any deficiency in the project is noticed.

10. The developer cannot make any changes to the plan that had been sold without the written consent of the buyer. This puts paid to a common and unpopular practice by developers to increase the cost of projects.

Lawyers not liable under Consumer Protection Act : SC

Lawyers not liable under Consumer Protection Act : SC http://www.supremecourtjudgments.in/2017/04/lawyers-not-liable-under-consumer-protection-act-SC.html

Some important Citations on addition of accused

Compiled by Adv Mir Nagman Ali

Bombay High Court Nagpur Bench 

9028401027/ 8380069591

Some important Citations on addition of accused

Hardeep Singh Vs Punjab 

2014 AIR(SC) 1400 : 2014 AIR(SCW) 667 : 2014 All.M.R.(Cri) 801 : 2014 (1) Bom.C.R.(Cri.) 772 : 2014 DGLS(SC) 35 : 2014 (1) JT 412 : 2014 (1) Scale 241 : 2014 (3) SCC 92 : 2014 (1) Supreme 132

Code of Criminal Procedure, 1973, Secs. 193, 200, 201, 202, 319 & 398 - Scope and extent of - Powers of Courts - To arraign any person as accused - During course of inquiry - What is stage at which power under section 319 Code of Criminal Procedure can be exercised? - Whether word "evidence" used in section 319(1) Code of Criminal Procedure has been used in a comprehensive sense and includes evidence collected during investigation or word "evidence" is limited to evidence recorded during trial? - Held, after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under section 193 Code of Criminal Procedure and Sessions Judge need not wait till evidence under section 319 becomes available for summoning an additional accused. Section 319., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under sections 200, 201, 202 Code of Criminal Procedure; and under section 398 Code of Criminal Procedure are species of inquiry contemplated by section 319. Materials coming before Court in course of such enquiries can be used for corroboration of evidence recorded in Court after trial commences, for texercise of power under section 319, and also to add an accused whose name has been shown in Column 2 of charge-sheet. Word evidence in section 319 Code of Criminal Procedure has to be broadly understood and not literally i.e. as evidence brought during a trial. (Para 110)

R.J. Lakhia v. State of Gujarat, 1982 Cri LJ 1687 (Guj) and Amarjit Singh v. State of Punjab, 1983 Cri LJ NOC 98

There are two decisions, one of Punjab High Court and the other of Gujarat High Court which have taken the view that examination-in-chief of a witness alone without his cross-examination cannot be said to be such evidence upon which the Court can act under S.319, Cr. P.C. because such evidence in examination-in-chief is nothing but incomplete statement of a witness. 

Supreme Court in Delhi Municipality v. Ram Kishan AIR 1983 SC 67 : (1983 Cri LJ 159) 

has clearly cautioned that the provision of Section 319, Cr. P.C. should be used very sparingly. 

SANNAREVANAPPA BHARAMAJAPPA KALAL VS KARNATAKA  [1991 CRI. L. J. 21]

Golam Mondal v. Nazam Hossain (1987) 2 Crimes, 307: (1987 Cri LJ 729). 

f the provisions of Section 319, Cr. P.C. are closely perused, it follows that the trial Court committed serious error in acting only on the evidence-in-chief and taking cognizance of the offence against the petitioners as well. The order, therefore, is unsustainable and the same has to be set aside with liberty to the prosecution to move the trial Court when there is evidence as required under law before the trial Court to act under Section 319, Cr. P.C.

RAKESH VS STATE OF HARYANA 

2001 AIR(SC) 2521 : 2001 AIR(SCW) 2703 : 2003 (Supp.1) Bom.C.R. 291 : 2001 DGLS(SC) 906 : 2001 (5) JT 639 : 2001 (4) Mh.L.J. 596 : 2001 (4) Scale 522 : 2001 (6) SCC 248 : 2001 (5) Supreme 300 : 

Held, it is difficult to accept that term 'evidence' as used in section 319 would mean evidence which is tested by cross-examination. Question of testing evidence by cross-examination would arise only after addition of accused. Word 'evidence' occuring in sub-section is used in comprehensive and broad sense which would include material collected by Investigating Officer and material or evidence which comes before Court and from which Court can prima facie conclude that person not arraigned before it is involved in commission of crime. Hence, once Sessions Court records statement of witness it would be part of evidence. It is true that finally at time of trial accused is to be given opportunity to cross-examine witness to test its truthfulness. But that stage would not arise while exercising Court's power under section 319 of Code. 1998(7) S.C.C. 149 relied upon. (Paras 10, 12 & 13)

(Ranjit Singh v. State of Punjab)10, 1998(7) S.C.C. 149. 

In paragraph 10, the Court held that sub-section (1) of section 319 contemplates existence of some evidence appearing in the course of trial wherefrom the Court can prima facie conclude that the person not arraigned before it is also involved in the commission of the crime for which he can be tried with those already named by the police. The Court has also clarified that :

 "Of course it is not necessary for the Court to wait until the entire evidence is collected for exercising the said powers

Balvinder Singh v. State of Haryana)1, 1996(3) Rec.Cri.R. 231, (Joginder Singh v. State of Punjab)2, 1999(1) Rec.Cri.R. 561; (Dharam Pal v. Hardial Singh)3, 1999(2) Rec.Cri.R. 165 and (Rakesh Batra v. State of Haryana)4, 2000(4) Rec.Cri.R. 10,

 has arrived at the conclusion that statement of the complainant without cross-examination is  not   admissible  in evidence and, therefore, the order of the Sessions Judge exercising powers under section 319 of the Criminal Procedure Code summoning additional persons as accused on the basis of the said statement was not lawful. The Court arrived at the conclusion that the word evidence used in section 319 of the Code  means   admissible  evidence and the statement of a witness when he is yet to be cross-examined cannot be treated as evidence in the eyes of law.

State v. Kishori etc.)5, 1999(1) Rec.Cri.R. 2000; High Court of (Punjab and Harayana) in (Chanan v. State of Punjab)6, 1999(1) Rec.Cri.R. 371 and the High Court of Allahabad in (Ram Gopal v. State of U.P.)7, 1999(2) Rec.Cri.R. 534 

have taken a contrary view and have held that the term evidence in section 319, Criminal Procedure Code does not contemplate cross-examination by persons who are to be summoned as accused to join trial. It does not contemplate of creating of additional stage of cross-examination of prosecution witnesses by those persons who are to be summoned and added as accused.

Thursday, 20 April 2017

False affidavits in civil proceedings - Liable for contempt of court

False affidavits in civil proceedings - Liable for contempt of court
Plaintiff submits an affidavit stating facts, in support of an application for the arrest or attachment of the property belonging to the Defendant. If the defendant proves that the plaintiff filed the false affidavit, the plaintiff may be punished under the Contempt of Court Act, 1971. Swearing to false facts in an affidavit is a Contempt of Court. Further, the plaintiff is also liable for punishment with imprisonment of either description for a term which may extent to seven years, and shall be liable to fine for producing the false evidence before the Court, vide IPC §§ 191, 192 and 193, inter alia.
In Iqbal Singh Marwah and Anr. v. Meenakshi Marwah and Anr., 2005 0 AIR(SC) 2119 = 2005 0 AIR(SCW) 1929 = 2005 2 BBCJ(SC) 408 = 2005 2 Crimes(SC) 11 = 2005 0 CrLJ 2161 = 2005 2 JCC 768 = 2005 3 JT 195 = 2005 2 PLJR(SC) 236 = 2005 2 RCR(Cri) 178 = 2005 3 Scale 93 = 2005 4 SCC 370 = 2005 5 SCJ 98 = 2005 2 Supreme 549 = 2005 0 Supreme(SC) 454.

Status of an Advocate as an officer of justice does not mean that he is subordinate to the Judge. They are two branches of the same Supreme Court - (2015 (2) KCCR 1809 - High Court Of Karnataka Vs. Jai Chaitanya Dasa And Ors. )

Bar and Bench  – *Supreme Court -
(2015 (2) KCCR 1809 - High Court Of Karnataka Vs. Jai Chaitanya Dasa And Ors. )

Status of an Advocate as an officer of justice does not mean that he is subordinate to the Judge. They are two branches of the same profession and neither is superior or inferior to other. A discourteous judge is like an ill-tuned instrument in the setting of a court room. It is questionably true that courtesy breeds courtesy and just as charity has to begin at home,  courtesy must begin with the judge.
The bad behavior of one Judge has a rippling effect on the reputation of the judiciary as a whole. When the edifice of judiciary is built heavily on public confidence and respect, the damage by an obstinate Judge would rip apart the entire judicial structure built in the Constitution
The legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honorable members. Status of an Advocate as an officer of justice does not mean that he is subordinate to the Judge. It only means that he is an integral part of the machinery for the administration
of justice. They are partners in the common enterprise of the administration of justice. The difference in their roles is one of division of labour only; otherwise they are two branches of the same profession and neither is superior or inferior to other.
Respect is not to the person of the Judge but to his office.
If the Judge has lost confidence of the Bar he will soon lose confidence of the public
The duty of courtesy to the Court does not imply that he should not maintain his self-respect and independence as his client's advocate. Respect for the Court does not mean that the counsel should be servile. It is his duty, while respecting the dignity of Court, to stand firm in advocacy of the cause of his client and in maintaining the independence of the Bar. It is obviously in the interests of justice that an advocate should be secured in the enjoyment of considerable independence in performing his duties.
A strong Judge will always uphold the law, and that is also the aim of advocacy, even though the Judge and the advocate may differ in their point of view.
His status as an officer of justice does not mean that he is subordinate to the Judge. It only means that he is an integral part of the machinery for the administration of justice.
Advocates share with Judges the function that all controversies shall be settled in accordance with the law. They are partners in the common enterprise of the administration of justice. The difference in their roles is one of division of labour only; otherwise they are two branches of the same profession and neither is superior or inferior to other. This fact is now recognized in India by the autonomy given to the Bar by The Advocate Act, 1961. Judges cannot do without the help of advocates if justice is to be administered in accordance with law, and its administration is to command popular confidence. It is the function of an advocate not merely to speak for the client, whom he represents, but also to act as officer of justice and friend of the Court. The first duty which advocates and Judges owe to each other is mutual co-operation, that is a fundamental necessity. Without it there can be no orderly administration of justice. Nothing is more calculated to promote the smooth and satisfactory administration of justice than complete confidence and sympathy between Bench and the Bar. If the Advocate has lost confidence of the Bench he will soon lose that of his clients. A rebuke from the Bench may be fatal to his chances of securing a high standing at the Bar. Similarly if the Judge has lost confidence of the Bar he will soon lose confidence of the public. There is the danger of a Judge placing over emphasis on the dignity of the Court.

Thursday, 13 April 2017

Whether court can look in to document which is not exhibited?

Whether court can look in to document which is not exhibited?
It appears that along with his written submission, the plaintiff filed certain documents which were not exhibited at the trial to prove sub- letting. In our view those documents cannot be looked into since they were not put in evidence and the defendant had no opportunity of replying to those documents.
Supreme Court of India
Amar Nath Agarwalla vs Dhillon Transport Agency on 28 February, 2007
Bench: B.P. Singh, H.S. Bedi
           CASE NO.:
Appeal (civil)  1223-1224 of 2005

Citation:(2007) 4 SCC 306
JUDGMENT The Judgment of the Court was delivered
1. The appellant in these appeals by special leave is the landlord who filed a suit for eviction of the respondent tenant from the premises in question. The tenancy was created in favour of the respondent firm which consisted of four partners.
2. The eviction of the respondent was sought on the ground that the defendant had sub-let, assigned and/or transferred possession of the said premises and/or part thereof to Dhillon Transport Quick Service and Dhillon Roadways Corporation and others consent in writing of the plaintiff landlord. In its written statement the tenant denied the allegation of sub tenancy and submitted that M/s Dhillon Transport Agency, a partnership firm was originally the tenant. The partnership had four partners who carried on business in the name and style of Dhillon transport Agency. Since disputes and differences arose amongst the partners, Title Suit No. 19 of 1991 was filed in the Court of the 1st Subordinate Judge at Patna and all matters were settled by compromise. Consequently. The firm was dissolved and one of the partners was given all the assets of the firm and he formed another firm with himself as one of the partners. It was averred that unless the tenancy was transferred by such partner to a third party, it would not amount to sub-letting. The defendant therefore aserted that there was no sub-letting since one of the partners, Ajit Singh continued to occupy the premises having legal possession thereof.
3. In his deposition PW-1, Ajit Singh deposed that the tenancy was originally created in favour of the firm of which he was one of the partners. The firm was running a transport agency business in the suit premises and had never inducted any sub tenant in the suit premises. In his corss examination it was elicited that the partnership firm originally consisting of four partners existed for about 35 to 40 years. He denied the suggestion that he was not looking after the affairs of the defendant and that it inducted other persons and/or firm for carrying on business in the suit premises by the name of Dhillon Quick Transport Service or Dhillon Roadways Corporation. He asserted that he looks after the affairs of the partnership firm which is carrying on business in the premises of which he is a partner.
4. It appears that along with his written submission, the plaintiff filed certain documents which were not exhibited at the trial to prove sub- letting. In our view those documents cannot be looked into since they were not put in evidence and the defendant had no opportunity of replying to those documents.
5. The trial Court decreed the suit for eviction but its judgment and order has been set aside by the High Court. The High Court after appreciating the evidence on record has found that since one of the partners of the original tenant namely, the firm Dhillon Transport Agency, is still running his transport agency business in the same premises, it cannot be held that a sub-tenancy has been created. The High Court, therefore, held that the appellant had failed to prove sub-letting of premises by the respondent.
6. In the Special Leave Petition filed by the appellants two questions of law have been formulated which read as follows:-
(a) If it is an admitted fact that the firm (with four partners) in favour of which lease/tenancy was granted as dissolved, as a result whereof the three resigning partners devolved and/or transferred and/or assigned their interest in the tenancy/lease rights in favour of one of th partner who continued as owner of the firm, whether such an assignment/devolution/transfer of the lease rights without obtaining the consent of the landlord ipso facto amounts to sub-letting by the resigning partners?
(b) If dissolution of the partnership firm and devolution and/or transfer and/or assignment of the same by the resigning partners in favour of the surviving partner is an admitted fact, whether any further evidence is required to be submitted by the plaintiff-landlord to establish sub- letting?
7. As would be apparent from a mere reading of the submissions urged on behalf of the appellant, after dissolution of the firm all the rights of the tenant firm including tenancy rights had been transferred to one of the partners who has continued as the owner of the firm in occupation. The question is whether carrying on business by one of the partners of the firm which was originally the tenant amounts to sub-letting of the premises by the original tenant.
8. In Murli Dhar v. Chuni Lal and Ors., (1969) RCR 563 this Court had repelled the contention that the old firm and the new firm being two different legal entities, the occupation of the shop by the new firm was occupation by the legal entity other than the original tenant and such occupation proved sub-letting. Repelling the contention this Court held:-
"This contention is entirely without substance. A firm, unless expressly provided for the purpose of any statute which is not the case here, is not a legal entity. The firm name is only a compendious way of describing the partners of the firm. Therefore, occupation by a firm is only occupation by its partners. Here the firms have a common partner. Hence the occupation has been by one of the original tenants."
9. In Mohammedkasam Haji Gulambhai v. Bakerali Fatehali (Dead) by LRs., Reported in [1998] 7 SCC 608 this Court observed:
"There is absolute prohibition on the tenant from sub-letting, assigning or transferring in any other manner his interest in the tenanted premises. There appears to be no way around this subject of course if there is any contract to the contrary between the landlord and the tenant. In a partnership where the tenant is a partner, he retains legal possession of the premises as a partnership is a compendium of the names of all the partners. In a partnership, the tenant does not divest himself of his right in the premises. On the question of sub-letting etc. the law is now very explicit. There is prohibition in absolute terms on the tenant from sub- letting, assignment or disposition of his interest in the tenanted premises."
10. The same principle was reiterated by this Court in Mahendra Saree Emporium (II) v. G.V. Srinivasa Murthy, reported in [2005] 1 SCC 481 wherein this Court held:
"The mere fact that another person is allowed to use the premises while the lesses retains the legal possession is not enough to create a sub lease. Thus, the thrust is, as laid down by this Court, on finding out who is in legal possession of the premises. So long as the legal possession remains with the tenant the mere factum of the tenant having entered into partnership for the purpose of carrying on the business in the tenancy premises would not amount to sub-letting. In Parvinder Singh v. Renu Gautam a three-Judge Bench of this Court devised the test in these terms: (SCC P. 799, Para 8) "If the tenant is actively associated with the partnership business and retains the use and control over the tenancy premises with him, may be along with the partners, the tenant may not be said to have parted with possession. However, if the user and control of the tenancy premises has been parted with and deed of partnership has been drawn up as an indirect method of collecting the consideration for creation of sub-tenancy or for providing a cloak or cover to conceal a transaction not permitted by law, the Court is not estopped from tearing the veil of partnership and finding out the real nature of transaction entered into between the tenant and the alleged sub-tenant."
11. Applying these principle to the instant case, it is patent that one of the partners of the firm which was the original tenant has continued in legal possession of the premises as a partner of another firm constituted after dissolution of the original firm. Thus the legal possession is retained by a partner who was one of the original tenants. In these circumstances, we find no fault with the finding of the High Court there was no sub-letting of the premises and hence the suit for eviction deserved to be dismissed.

12. There is not merit in these appeals and the same are accordingly dismissed.

Landlord Entitled To Get Interest When Court Allows Tenant To Pay Rent Arrears In Installments: SC

Landlord Entitled To Get Interest When Court Allows Tenant To Pay Rent Arrears In Installments: SC [Read Judgment]

Read more at: http://www.livelaw.in/landlord-entitled-get-interest-court-allows-tenant-pay-rent-arrears-installments-sc/