IS THE ‘DELHI CHALO’ PROTEST JUSTIFIED?

On 26-11-2020, a movement was started by the farmers against the three contentious Farm Laws promulgated by the Centre. As part of the ‘#Delhi Chalo’ Protest or the ‘head towards Delhi’, thousands of #Farmers from Punjab, Haryana, Rajasthan and Uttar Pradesh marched towards the National Capital and claim that they will be protesting indefinitely against the #Farms Laws in the National Capital from 26-11-2020.

The question that arises is the movement ‘Delhi Chalo’ justified or is it the outcome of political agenda aimed at tarnishing the Government’s efforts to bring reforms. This Article gives a bird’s eye view of the three Farm Laws and explains the purpose of the Acts. The reader can decide whether the Farm Laws are fair or foul and whether the movement ‘Delhi Chalo’ is necessary and warranted.

On 27-09-2020, the President gave assent to the three Farm Acts i.e.

  1. #The Farmers (Empowerment and Protection) Agreement of Price Assurance and Farm Services Act, 2020;
  2. #The Farmers Produce Trade and Commerce (Promotion and Facilitation) Act, 2020; and
  3. #The Essential Commodities (Amendment) Act, 2020.

The three Acts are focussed on improving the lot of the farmers and aims at increasing opportunities for farmers where they will be able to enter long term sale contracts, to increase the availability for buyers, and will enable the buyers to purchase farm produce directly and in bulk.

However, these Acts are being touted as “anti-farmer” Acts and the Farmers want the Central Government to scrap the three legislations as they are detrimental to their interest.

HIGHLIGHTS OF THE ACTS

  • The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020 will allow the Farmers to take their produce anywhere inter-state or intra-state i.e. beyond the physical premises of Agriculture Produce Marketing Committee (APMC) markets. Under the said Act, the State Governments are prohibited from levying any market fee, cess or levy outside APMC areas. This would mean that the farmer can sell his produce in an area where he could get the best price for his agricultural produce as compared to the current trend where he is often forced to sell beyond his expected price. He therefore gets victimised despite having worked so hard throughout the year.
  • The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020 creates a framework for contract farming i.e. the farmers and buyers will have an option to negotiate the price and reach an agreement prior to the production or rearing of any farm produce.  This gives the farmer a head start as he would be in a position to assess his costs and his profits assisting him in deciding what to produce and quantifying the same.
  • Under extraordinary circumstances (such as war and famine), The Essential Commodities (Amendment) Act, 2020 will allow the Central Government to regulate the supply of certain food items. Further, if there is a steep rise, the Stock limits may be imposed on agricultural produce.

The Objectives of the Acts are as follows:

  1. To ensure that there is no barrier and a farmer is able to freely trade the agricultural produce outside the markets as notified under the various State APMC laws.
  2. To facilitate Contract Farming.
  3. To impose stock limits on the agricultural produce in cases of a sharp increase in retail prices.

KEY FEATURES

I. The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020

  • The Act allows the Farmers to take their produce anywhere inter-state or intra-state i.e. beyond the physical premises of APMC markets and other markets that are notified under the State APMC Acts. The farmers will be able to conduct trade in an ‘outside trade area’ i.e., any place of production, collection, and aggregation of farmers’ produce including: (i) farm gates, (ii) factory premises, (iii) warehouses, (iv) silos, and (v) cold storages (vi) any other structures or places.
  • The Act allows the electronic trading of agricultural produce in the specified trade area through an electronic trading and transaction platform. Such platforms will be established and operated by a farmer producer organisation or agricultural co-operative society which will be helpful in facilitating the direct and online buying and selling of such produce through electronic devices and internet.
  • Lastly, the Act will  prohibit the  State Governments from levying any market fee, cess or levy on farmers, traders, and electronic trading platforms for trade of farmers’ produce conducted in an ‘outside trade area’.

II. The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020

  • The Act provides for a Farming Agreement i.e. a farmer and a buyer will be able to negotiate the price prior to the production or procuring the harvest/farm produce. The minimum period for such an agreement will be one crop season, or one production cycle of livestock. The maximum period will be five years, unless the production cycle is more than five years.
  • The price of the produce/harvest has to be mentioned in the Agreement. If the prices are prone to variation, then a guaranteed price for the produce and any reference for additional amount above the guaranteed price has to be specified in the Agreement. Furthermore, the process of determining the price has to be mentioned in the Agreement.
  • The Act provides for a Dispute Resolution Mechanism. The Farming Agreement must provide for a process of settlement of disputes via Conciliation Process. All the disputes must be referred to the Conciliation board for resolution. In case of no settlement, the parties may approach the Sub-divisional Magistrate within a period of thirty days for resolution. An Appeal shall lie to the Appellate Authority (presided by Collector or Additional Collector) against the decision of the Magistrate. The Magistrate and the Appellate Authority has to decide the matter within a period of thirty days from the date of the receipt of the Application for dispute. Additionally, the Magistrate or the Appellate Authority, as the case may be, has a right to impose penalties on any party who breaches the Farming Agreement. However, no action will lie against any farmer for recovery of dues.

III. The Essential Commodities (Amendment) Act, 2020

  • Under The Essential Commodities Act, 1955, the Central government has the authority to designate certain commodities (such as food items, fertilizers, and petroleum products) as essential commodities.  The Act provides that under extraordinary circumstances (such as war and famine, extraordinary price rise and natural calamity of grave nature), the Central Government will be able to regulate the supply of certain food items including cereals, pulses, potatoes, onions, edible oilseeds, and oils.
  • Under The Essential Commodities Act, 1955, the Central government has the authority to designate certain commodities (such as food items, fertilizers, and petroleum products) as essential commodities.  The Act provides that under extraordinary circumstances (such as war and famine, extraordinary price rise and natural calamity of grave nature), the Central Government will be able to regulate the supply of certain food items including cereals, pulses, potatoes, onions, edible oilseeds, and oils.
  • Furthermore, stock limits may be imposed on the agricultural produce, in cases of steep rise in the price.
  • However, a stock limit may be imposed only in the following circumstances:

i. A 100% increase in retail price of horticultural produce;

ii. A 50% increase in the retail price of non-perishable agricultural food items.  

The Act further provides that this increase will be calculated over the price prevailing immediately preceding twelve months, or the average retail price of the last five years, whichever is lower.

Having discussed the aforesaid salient points of the Farm Laws, the author leaves the readers to conclude whether the Farm Laws are in the interest of the #farmers or not.

Sushila Ram Varma

Chief Consultant and Co-Founder

The Indian Lawyer & Allied Services

SUPREME COURT RETERIATES THAT RIGHT TO PROPERTY IS A VALUABLE CONSTITUTIONAL RIGHT

The object of the Requisitioning and Acquisition of Immovable Properties Act, 1952 (‘the Act’) was to enable the Union of India (‘Union’) to requisition or acquire immovable property if the competent authority was of the opinion that any property was necessary for a public purpose.

Recently, the Supreme Court of India in B.K. Ravichandra v. Union of India, [(2020) SCC OnLine SC 950], vide its Judgment dated 24.11.2020 held and directed the Union of India to hand back possession of the suit lands to the rightful owners, within the period of three months as the right to property is a valuable Constitutional Right.

The Brief Facts of the Case are as follows:

Initially, the Act was to be in force for six years. On 27.02.1958, the Act was amended and the period of its operation extended. Meanwhile, the Defence of India Act, 1962 (‘the DIA’) was enacted by Parliament empowering the Central Government with powers akin to those enacted under the Act. The Union of India (‘Respondent’) invoked its powers under the DIA and requisitioned the three Properties (‘Suit Lands), which belonged to the predecessor of the B.K. Ravichandra (‘Appellants’). The Competent Authority fixed the compensation for these lands by Order dated 18.12.1964. The approval for this compensation fixation was given much later in 1968.

In 1972, the predecessor of the Appellants felt that the compensation fixed for the Suit Lands was inadequate and applied for enhancement. The dispute was referred to an Arbitrator under Section 8(2) of the DIA.

Arbitration Proceedings—

The Arbitrator pronounced an Award dated 17.07.1975, which determined compensation as 6% per annum on the capital value of land and held that the Appellants’ Predecessor was entitled to receive Compensation in respect of the Suit Lands. The Award dated 17.07.1975 was appealed before the Karnataka High Court by the Respondents, vide MFA 1405/1985. The Division Bench of the Karnataka High Court, vide its common Judgment and Order dated 24.11.1994 set aside the Award dated 17.07.1975 and the matter was remitted for fresh consideration by the Arbitrator.

In this fresh round, the Arbitrator passed two Awards both dated 28.02.2000, one dealing with the extent of land, and the other compensation payable. It was held that two of the Suit Lands were not validly acquired by the Respondents. The said Awards dated 28.02.2000 was challenged in Appeal before the Karnataka High Court by the Respondents. During its pendency, the widow of the late B.M. Krishnamurthy and the present Appellants, her children, filed a Writ Petition No. WP 8340/2006, claiming that since the period of requisition had ended and the Suit Lands had not been acquired, the possession of the Respondents after 1987 was untenable in law.

The High Court, vide its Judgment dated 11.01.2008 in Appeal No. MFA 2220/2002 upheld the Arbitral Awards and held that the two Lands out of the three were never acquired by the Authorities-Respondents for the benefit of Appellants herein. However, the High Court left open to the Respondents to take steps in accordance with law, with respect to the Suit Lands for a proper acquisition. The Writ Petition No. WP 8340/2006was also dismissed as the question of ownership had attained finality in favour of the Appellants.

Being aggrieved, the Appellants approached the Supreme Court against the High Court Judgment dated 11.01.2008, whereby their claim to take possession of the Suit Lands was rejected by the High Court.

Supreme Court

While dealing with the issue of the right to property, the Supreme Court stated that the legal effect of requisition of immovable property is temporary i.e., for the period the Requisition Order is in operation, the owner loses her possessory rights, even though the title remains undisturbed. Since the deprivation of possession is through the authority of law, in keeping with fair procedure, the law (in this case, the Act) provides for payment of compensation in accordance with predetermined principles. But, taking back the property is a final and it cannot result in expropriation or deprivation of title altogether, unless another process for acquiring the lands is initiated.

It further observed and highlighted the importance of the right under Article 300-A of the Constitution of India. The Supreme Court said that in the context of regulatory enactments, which do not directly result in expropriation or acquisition, but rather, in an oblique block the right to enjoyment of property is unauthorized deprivation, which would result in an indefinite suspension of the right to property.

The Supreme Court noted that the Union’s occupation ceased to be lawful, with the lapse of the Act, in 1987. Yet, it has implacably refused to hand back possession, each time asserting that it has some manner of rights over it. The High Court, while noticing that the Union’s claim had no merits, nevertheless refused to issue any direction for the release of the Suit Lands. The rationale given was that the adjoining areas had been acquired and were used by the Union for defense purposes. It said that, the impugned Judgment granted indefinite time to the Union to take steps to acquire the suit lands. The Union has not chosen to do so these last 12 years. These facts paint a stark, even a sordid picture.

The Supreme Court observed that “although the right to property is not a fundamental right protected under Part III of the Constitution of India, it remains a valuable constitutional right.”

In this view, it held that that the impugned Judgment committed an error in refusing relief to the Appellants. It further said that “33 years is a long enough time, even in India, to be kept away from one’s property. The Respondent Union is directed to hand back possession of the suit lands to the Appellants, within three months”. Thus, the Appeal was allowed.

Lakshmi Vishwakarma

Associate

The Indian Lawyer

‘DELHI CHALO’ AGITATION: FARMERS PROTEST AGAINST THE THREE CENTRAL FARM LAWS

On 26-11-2020, the #farmers from Punjab and Haryana started their movement against the three contentious #FarmLaws promulgated by the Centre. The ‘#DelhiChalo’ Protest or the ‘head towards #Delhi’ was organized where tens of thousands of farmers marched towards the National Capital. Despite heavy deployment of security personnel and use of water cannons and tear gas, the Haryana Police failed to stop the farmers from proceeding further. As a preventive step, the State of Haryana has imposed Section 144 CrPC to prevent protester’s assembly and has sealed all the major entry points along the #Punjab border. However, despite this, the protesting farmers, comprising of men and women, school and college students riding tractor-trailers, cars and two wheelers managed to enter the Haryana borders from Punjab. In wake of the protests, security has been stepped up in the National Capital and travel advisory has been issued by the Haryana Police Authority.

As per the Police reports, it is estimated that around 3,00,000 farmers from both the States are set to reach Delhi. The farmers are a part of the United Farmers Front, an all-India body comprising of nearly 470 farmers’ Unions and will be protesting indefinitely in the National Capital from 26-11- 2020.

The three Farms Bills i.e. ‘the Farmers (Empowerment and Protection) Agreement of Price Assurance and Farm Services Bill; the Farmers Produce Trade and Commerce (Promotion and Facilitation) Bill; and the Essential Commodities (Amendment) Bill which received the President’s assent on 27-09-2020 are being touted as “anti-farmer” bills. According to the Central Government, these Bills will be helpful for the small and marginal farmers as they will be able to sell produce outside mandis and will be able to enter into agreements with agri-business firms. The Government claims that these Acts will help to boost the Indian Agriculture sector and will attract private investment. The farmers will be able to take their produce anywhere inter-state or intra-state. The law also provides for provisions for contract farming i.e. the farmers and buyers will have an option to negotiate the price and reach an agreement before procuring the harvest. Further, under extraordinary circumstances, the Centre will be able to regulate or impose stock limits on the supply of certain food items.

Why the Protests?

However, heavy #criticisms and oppositions came from the Farm organisations like Bharatiya Kisan Union (BKU), big agricultural bodies like the All India Kisan Sangharsh Coordination Committee (AIKSCC) and some section of farmers. They criticised these Acts on the grounds that the Bill help no one but the giant corporates, as the Contracts drafted by big Corporate Law firms with liability clauses will be unfavourable for the farmers and beyond their understanding and thus, will destroy their livelihoods.

The impact of these Protests will be a debating issue in the upcoming Winter Session of the Parliament. As per the reports, the Government will be meeting the Protesting Farmers on 03-12-2020 to discuss the new laws.

Suchitra Upadhyay

Associate

The Indian Lawyer & Allied Services

SUPREME COURT REITERATED THAT HIGH COURT IS NOT OBLIGED TO FORMULATE SUBSTANTIAL QUESTIONS OF LAW IN CERTAIN CIRCUMSTANCES

A Three Judge Bench of the Hon’ble #SupremeCourt of India comprising of Justices L. Nageswara Rao, Hemant Gupta and Ajay Rastogi passed a Judgment dated 16.11.2020 in the case of Kirpa Ram v. Surendra Deo Gaur (Civil Appeal No. 8971 of 2010) and held that if there’s no #error in the findings of the First Appellate #Court, then the #HighCourt is not obliged to frame #substantialquestionsoflaw.

In the present case, Respondent No. 1 and 2 herein (Plaintiffs) had filed a Suit for Permanent Injunction on 31.07.1971 in the Trial Court, as they were apprehending a threat to their possession of land bearing Khasra No. 238 measuring 4 Bighas 3 Biswas (Property), situated in the revenue estate of Village Basai Darapur, Delhi. By a Decree dated 07.10.1960, the Trial Court held that the Plaintiffs are the owners and Bhumidars of the said Property.

Aggrieved, the Defendants filed an Application under Section 161 B of the Delhi Land Reforms Act, 1954 before Sub-Judge, First Class, Delhi for setting aside the said Decree. However, the same was dismissed on 24.5.1968.

The Trial Court held that the Property was in the possession of the Plaintiffs. Further, it was held that the Defendants being the third parties don’t have a right to challenge the Decree passed in favour of the Plaintiffs.

Aggrieved, the Defendant No. 4 (Appellant herein) filed a First Appeal, which was dismissed by the First Appellate Court. Thereafter, a Second Appeal was filed in the Delhi High Court and the High Court vide Judgment dated 25.8.2008 dismissed the same.

Aggrieved, the Defendant No. 4 (Appellant herein) filed an Appeal in the Hon’ble Supreme Court of India.

The First argument raised by the Appellant was that the High Court had dismissed the Appeal without formulating any substantial question of law which is a requirement as per Section 100 of the Civil Procedure Code, 1908 (Code) and that the matter should be remitted back for determining the substantial questions of law framed by the Appellant.

Placing reliance on Sub-Section (1) of Section 100 of the Code, the Apex Court held that an Appeal shall lie if there’s a substantial question of law involved and the Appeal shall be heard on the questions so framed. If the substantial questions of law that have been framed by the Appellant are found to be arising in the case, only then the High Court shall take the same into consideration. However, if there’s no error in the findings of the First Appellate Court, then the High Court is not obliged to frame any substantial questions of law.

In this case, the Supreme Court upheld the Judgment of the Delhi High Court as there was no error in the findings of the said Court and thus, disposed the Appeals.

Suchitra Upadhyay

Associate

The Indian Lawyer & Allied Services

DELHI HIGH COURT REFUSES TO GRANT INJUNCTION TO A GLOBAL PHARMA COMPANY FOR NON-COMPLIANCE OF INDIAN PATENT LAW

The #DelhiHighCourt has in a matter of Astrazeneca AB and Anr vs Torrent Pharmaceuticals Ltd and other tagged matters passed a Judgment dated 18-11-2020 and refused to grant interim #injunction in favor of the Plaintiff, a global #pharma Company, on the ground that it failed to disclose information to the Indian #Patent Office about its patent applications for same or similar inventions in other countries.

In this case, the Plaintiff claimed to be the owner of a pharmaceutical composition namely ‘Dapagliflozin’ (Product), which helps in controlling diabetes and diabetes complications.  The Plaintiff’s authorised distributors in India include Sun Pharma Laboratories Limited and Abbott Healthcare Private Limited, who make drugs comprising of Dapagliflozin. The Plaintiff has applied for patent of the said Product in a Patent Suit in India and other countries such as the United States of America (USA), etc.

But the Defendants had challenged the Patent Suit on the ground that the Plaintiff has failed to disclose about its patent applications in other countries. Thus, they challenged the validity of the Patent Suit.

However, the Plaintiff filed a suit before the Delhi High Court and sought for permanent injunction restraining the Defendants from manufacturing and selling products that comprised of ‘Dapagliflozin’.

The Delhi High Court made the following observations in this case:

1- That as per Section 8 (2) of the Patent Act 1970 (the Act), the applicant must submit the particulars of all the applications for patent of same or substantially the same invention filed in other countries. But the Plaintiff failed to disclose the details about its patent applications, if any, in any of the patent offices across the world such as United States Patent and Trademark Office (USPTO), European Patent Office (EPO), Japan Patent Office (JPO), etc.

Section 8 of the Act has been reproduced below:

Information and undertaking regarding foreign applications

(1) Where an applicant for a patent under this Act is prosecuting either alone or jointly with any other person an application for a patent in any country outside India in respect of the same or substantially the same invention, or where to his knowledge such an application is being prosecuted by some person through whom he claims or by some person deriving title from him, he shall file along with his application or subsequently within the prescribed period as the Controller may allow—

 (a) a statement setting out detailed particulars of such application; and

 (b) an undertaking that, up to the date of grant of patent in India, he would keep the Controller informed in writing, from time to time, of detailed particulars as required under clause (a) in respect of every other application relating to the same or substantially the same invention, if any, filed in any country outside India subsequently to the filing of the statement referred to in the aforesaid clause, within the prescribed time.

(2) At any time after an application for patent is filed in India and till the grant of a patent or refusal to grant of a patent made thereon, the Controller may also require the applicant to furnish details, as may be prescribed, relating to the processing of the application in a country outside India, and in that event the applicant shall furnish to the Controller information available to him within such period as may be prescribed.

2- Despite repeated requests made by the Indian Patent Office for submission of mandatory documents, the Plaintiff failed to comply with the said requirements, hence, the High Court held that the validity of the Patent Suit is vulnerable for non-compliance of Section 8 (2) of the Act. But the Court refused to delve further into the issue of invalidity of Patent Suit, as this was a Suit for Interim Injunction only.

3- That the prima facie vulnerability of the validity of Suit Patent has outweighed the balance of convenience and irreparable loss caused to the Plaintiff.

Thus, based on the aforesaid grounds, the Delhi High Court has held that the Defendants have prima facie laid a credible challenge to the validity of the Patent Suit on the ground of non-compliance of Section 8(2) of the Patent Act. Therefore, the Delhi High Court refused to grant interim injunction in favor of the Plaintiff and therefore, dismissed the Suit.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

BEGINNING OF VIRTUAL COURTS ON WHEELS IN INDIA

In view of the #COVID-19 Pandemic, the Indian Judicial System has changed its way to hear cases through #VideoConferencing. During this time, the Courts have experienced a spike in the number of cases. Subsequently, the system has become more robust, #artificialintelligence has become more proficient, and #justice has become more accessible to the poorest and those living in remote areas.

In this regard, recently, the Principal District Judge of Adilabad, MG Priyadarshini, on Friday launched Virtual Court Connecting Mobile Van [#Mobile Van(s)]. The High Court of Telangana initially inaugurated a “Mobile Video Conference Facility” in order to help the lawyers and litigants, who have been facing trouble in participating in Virtual Court hearings due to the non-availability of computer system or internet, to attend court hearings through this Mobile Van.

The idea is in itself an innovative effort of creative minds in technology sector to curb the problems of litigants and lawyers with respect to the technology. It is in addition to the virtual control room, established in courts complex, which is being used by advocates and the general public for attending Virtual Court hearings. This has made the accessibility easier for the lawyers and litigants to access the legal help from any area.

The idea of mobile van is to go to the remote places in the State, so that advocates residing in that vicinity can make use of the Mobile Video Conference Facility and address the Virtual Court.

Such an effort is commendable amidst the crisis; more such initiatives should be taken by various other courts so that the essence of justice does not dissolve amidst the Pandemic. The Supreme Court should also formulate guidelines for encouraging and regulating such Mobile Vans. Moreover, such an initiative would also act as a stepping stone towards the digital world, where virtual courts would be omnipresent, thereby reducing the crowd from the court premises.

Time has demanded a creative platform for ‘Access to Justice’ and this has been made possible through the implementation of virtual courts. Now, access to justice at the doorstep is the need of the present hour, where justice is being delayed and only urgent matters are being taken up by courts. These Mobile Vans would not only help in ensuring timely justice and accessibility but would also help in increasing the number of cases that could be dealt within a day without diluting the essence of the term “justice”. Therefore, such efforts taken by the Principal District Judge of Adilabad, should be adopted by other courts as soon as possible.

These efforts would bring other benefits such as enhancement of efficiencies in proceedings, less stress on physical infrastructure, lesser crowd in court rooms, lesser waiting time in court corridors, more productive use of time and money, lesser cars on the road, and improved work-life balance. And then, there is the hope for a healthier environment, perhaps the only silver lining in this time of Pandemic.

Lakshmi Vishwakarma

Associate

The Indian Lawyer

ARNAB GOSWAMI ARRESTED

#ArnabGoswami was recently arrested on 04-11-2020 at 7.45 AM in connection with FIR CR. No. 0059 of 2018 dated 05-05-2018 which was registered at #Alibaug Police Station, Raigarh under Sections 306 and 34 of the Indian Penal Code 1860 (#IPC). Section 306 IPC deals with #Abetment of #Suicide and the #punishment for the said Offence is 10 (ten) years and fine. Section 34 IPC deals with acts done by several persons in furtherance of common intention.

Arnab Goswami was a named Accused in the FIR CR. No. 0059 of 2018. As per the said FIR which was lodged by the daughter of the Deceased Anvay Naik, an Interior Designer and his mother Late Kumud Naik, they had committed suicide. It is alleged that the suicide was prompted due to non-payment of dues of Rs 5.40 Crore by Arnab Goswami and two others.

The investigation into the said FIR CR. No. 0059 of 2018 was closed and the Summary Report submitted by the Police was accepted by the Chief Judicial Magistrate, Alibaug on 16-04-2019. It is therefore most unusual that in a case that has been closed and there is no judicial order directing reopening of the matter/re-investigation of the matter or directing further investigation of the matter, how Arnab Goswami got arrested.

The mode and method used by the Police in the arrest of Arnab also seems to be a violation of his legal rights. It appears that he has been manhandled and physically assaulted by Police Officials and was physically dragged and taken into custody. These events are borne out in a Video Footage that was taken at the time of his arrest and can be viewed on https://youtu.be/69MrVE_6hKc

Arnab Goswami has challenged the aforesaid arrest in a Writ Petition before the Bombay High Court and sought Bail in the said FIR CR. No. 0059 of 2018. In this Writ Petition he has alleged illegal detention and wrongful custody by the Mumbai Police and has sought a stay in the proceedings including the investigation in FIR CR. No. 0059 of 2018.

Arnab’s Bail Application is currently before the Bombay High Court and pending the disposal of his Bail Application, he will be in judicial custody. He is lucky that he was remanded to judicial custody and not police custody, taking into consideration the way he was manhandled by the Mumbai Police during his arrest.

It seems the media giants who always consider themselves above the law are not really above the law. Arnab’s case being an example.

Sushila Ram Varma

Chief Consultant

The Indian Lawyer & Allied Services

SUPREME COURT HOLDS THAT HOMEBUYERS HAVE ALTERNATE REMEDIES UNDER LAW AGAINST BUILDERS

In a recent case of M/s Imperia Structures Ltd vs Anil Patni and Another Civil Appeal No. 3581-3590 of 2020, the 2-Judge Bench of the #SupremeCourt passed a Judgment dated 02-11-2020, whereby the Apex Court held that the #consumer has the #discretion to choose either the Consumer Forum or the Real Estate Regulatory Authority to initiate proceedings against the #builder or promoter for delay in handing over the possession of the booked #flat or apartment.

In this case, the Appellant-Builder and the Respondent-Buyers had executed a Builder Buyer Agreement dated 30-11-2013 (the Agreement) with respect to various flats in “The ESFERA” Project in Sector 13C, Gurgaon, Haryana (Building). The Respondent in this case had booked a Flat in the Building for an aggregate price of Rs. 76,43,000/- and over the period of time, the Respondent-Buyer had paid Rs. 63,53,625/-. But the Appellant-Builder could not complete construction of the Building within the agreed period of 42 months. Thus, the Respondent-Buyer filed a case under the Consumer Protection Act 1986 (the CP Act) on 11-10-2017 before the National Consumer Disputes Redressal Commission, New Delhi.

Later, the Real Estate (Regulation and Development) Act, 2016 (the #RERA Act) was introduced on 01-05-2016 and the Project was registered with Haryana Real Estate Regulatory Authority, Panchkula (HRERA) on 17-11-2017.

Thereafter, the Appellant-Builder challenged the jurisdiction of the Consumer Forum on one of the grounds that there was a delay in completion of the Project due to occurrence of Force Majeure events such as Demonetisation and thus, the Builder cannot be held liable for the same under Clause 41 of the Agreement.

The National Commission passed an Order dated 12-09-2018 and held that demonetization, non-availability of contractual labour, and delay in notifying approvals cannot be construed to be Force Majeure Events. Moreover, the Builder had admitted that there was a delay on their part in completing the Project. Thus, the Builder was held liable for deficiency in services rendered to the Buyer and was directed to refund the entire money to the Buyer.  

Aggrieved by the National Commission’s Order dated 12-09-2018, the Appellant-Builder filed an Appeal before the Supreme Court. The Apex Court herein made the following observations:

1- That Section 100 of the CP Act 2019 (and Section 3 of the erstwhile CP Act 1986) provide that the CP Act is not in derogation of any other law. This Section is reproduced below:

The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.

This Section was again introduced in 2019 after the RERA Act was enacted, with the intent to secure the remedies under 2019 Act and to protect the interests of the consumers.

2- Further, Section 88 of the RERA Act provides that application of other laws is not barred. This Section is reproduced below:

The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force.

3- Thus, the remedies available under the CP Act are additional remedies over and above the remedies available under special statutes like the RERA Act. Thus, the courts are not barred from entertaining a complaint under the CP Act on the ground that an alternate remedy under a special statute is available.

4- Further, as per Section 18 of the RERA Act, if the builder (or promoter) fails to complete or is unable to give possession of an apartment, plot or building to the buyer (or allottee) within the timelines agreed by the parties, then the entire amount received from the buyer has to be returned to him in addition to compensation.

5- Therefore, the buyer or allottee has the discretion to initiate proceedings against the builder or promoter either under the CP Act or the RERA Act.

Thus, the Apex Court upheld that the validity of the proceedings initiated herein under the CP Act and also upheld the Order of the National Commission. The Supreme Court further directed the Appellant-Buyer to pay a sum of Rs. 50,000/- to each aggrieved Buyer in the said case, over and above the amounts payable to the Buyer(s).

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

SUPREME COURT HOLDS STATUTORY TIME LIMIT STIPULATED UNDER SARFAESI ACT TO BE DIRECTORY IN NATURE

Recently, a Three-Judge Bench of the Hon’ble #SupremeCourt of India in the case of C. Bright v. District Collector, Civil Appeal No. 3441 OF 2020, passed a Judgment dated 05.11.2020 and upheld an Order dated 19.7.2019 passed by the Division Bench of the #Kerala High Court, wherein it was held that Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (‘#SARFAESI Act’), which mandates the District #Magistrate to pass suitable orders for taking #possession of a #securedasset within 30 days, is not a mandatory provision.

The issue before the Supreme Court was whether the remedy under Section 14 of SARFAESI Act becomes redundant if District Magistrate is unable to pass suitable orders for taking possession of secured assets within the stipulated time limit?

The contentions raised that the Proviso to Section 14 of the SARFAESI Act mandates the District Magistrate to record reasons, if the order is not passed within 30 days and an extended period of a total 60 days has to be availed. This shows that the provision is mandatory. It was also contended that the Proviso mandates the District Magistrate to pass an order within 30 days as the word “shall” is used in first part of the Proviso to the Section 14 of the Act. Thus, the time limit provided is unambiguous and the provision is mandatory.

The Supreme Court observed that it is a well settled rule of interpretation of the statutes that the use of the word “shall” in a statute, does not necessarily mean that in every case it is mandatory that unless the words of the statute are literally followed, the proceeding or the outcome of the proceeding would be invalid. It is not always correct to say that if the word “may” has been used, the statute is only permissive or directory, in the sense that non-compliance with those provisions will not render the proceeding invalid. However, when a statute uses the word “shall”, prima facie, it is mandatory, but the Court may ascertain the real intention of the Legislature by carefully attending to the whole scope of the statute.

In view of the above observations, the Supreme Court noticed that the time limit stipulated under the SARFAESI Act is to instill a confidence in creditors that the District Magistrate would make an attempt to deliver possession as well as to impose a duty on the District Magistrate to make an earnest effort to comply with the mandate of the Statute to pass orders for taking possession of the secured assets within 30 days and for reasons to be recorded within 60 days. Hence, the remedy under Section 14 of the Act is not rendered redundant if the District Magistrate is unable to handover the possession. The District Magistrate will still be enjoined upon, the duty to facilitate delivery of possession at the earliest.

The Supreme Court also looked into the object and reason of the SARFAESI Act and observed that the object and purpose of the said time limit is to ensure that such applications are decided expeditiously so as to enable secured creditors to take physical possession quickly and realize their dues. Moreover, as stated earlier, the consequences of non-compliance with the time limit are not specified and the conclusion thereof would be that the district collector/district magistrate concerned would not be divested of jurisdiction upon expiry of the time limit. In this connection, it is also pertinent to bear in mind that if the “consequences of non-compliance” test is applied, the borrower, guarantor or lessee, as the case may be, are not adversely affected or prejudiced, in any manner, whether such applications are decided in 60, 70 or 80 days. On the other hand, the secured creditor is adversely affected if the provision is construed as mandatory and not directory in as much as it would delay the process of taking physical possession of assets instead of expediting such process by entailing the filing of another application for such purpose. For all these reasons, the time limit stipulation in the amended Section 14 of the SARFAESI Act is directory and not mandatory.

Therefore, the Supreme Court did not find any error in the Order passed by the High
Court. Consequently, the Order dated 19.7.2019 was upheld and the Appeal was dismissed.

Lakshmi Vishwakarma

Associate

The Indian Lawyer

SUPREME COURT ISSUES GUIDELINES ON PAYMENT OF MAINTENANCE IN MATRIMONIAL DISPUTES

The Two Judge Bench of the Hon’ble #SupremeCourt of India comprising of Justices Indu Malhotra and R. Subhash Reddy passed a Judgment dated 04.11.2020 in the case of Rajnesh v. Neha & Anr. (Criminal Appeal No. 730 of 2020) and has issued #Guidelines on payment of #maintenance in #matrimonial cases.

In the present case, the Respondent-Wife and the minor Son had filed an Application for Interim Maintenance under Section 125 of the Code of Criminal Procedure 1973 (Cr.P.C.) In January, 2013 shortly after the birth of the minor Son (Respondent No. 2), the Respondent No.1 (Wife) had left the Matrimonial House. On 02.09.2013, an Application was filed by the Respondent No. 1 under Section 125 Cr.P.C. seeking Interim Maintenance on behalf of herself and her minor Son. Vide Order dated 24.08.2015, the Family Court awarded an Interim Maintenance of Rs. 15,000/- per month to the Respondent No. 1 from 01.09.2013 and an interim maintenance of Rs.5,000/- per month to the Respondent No. 2 from 01.09.2013 to 31.08.2015 and an amount of Rs. 10,000 per month from 01.09.2015 till further orders were passed.

The Appellant-Husband challenged the said Order before the Hon’ble Bombay High Court- Nagpur Bench vide Criminal Writ Petition No.875/2015. The Writ Petition was subsequently dismissed vide Order dated 14.08.2018 and the Bombay High Court upheld the Order passed by the Family Court.

An Appeal was filed in the Apex Court challenging the High Court Order dated 14.08.2018. A notice was issued to the Respondent No. 1 and the Appellant was directed to file his Income Tax Returns and Assessment Orders for the period from 2005-2006 till date and to place a photocopy of his passport on record. Further, the Appellant was directed vide Order 11.09.2019 to make payment of the arrears of Rs.2,00,000 towards interim maintenance to the Wife and an amount of Rs.3,00,000 towards arrears of maintenance, which was due and payable to the Wife. However, by an Order dated 14.10.2019, it was recorded that only a part of the arrears had been paid by the Appellant and therefore, a final opportunity was given to him to make payment of the balance amount by 30.11.2019. The Apex Court further ordered that if the Appellant fails to make the said payment, he shall be liable for contempt of court.

Further, the Supreme Court also laid down certain Guidelines with respect to payment of maintenance in matrimonial matters, which are given below:

1- On the issue of Overlapping Jurisdiction, the Bench held the following:

i) When maintenance is claimed under different statutes, courts will take into consideration an adjustment or set off, of the amount which has been awarded in any previous proceeding(s), while determining whether or not any amount further is to be awarded in the subsequent proceeding.

ii) It is mandatory for the applicant to disclose the previous proceeding and the orders that were passed therein, in the subsequent proceeding.

iii) If an order has been passed in the previous proceeding(s) and it requires any modification or variation, it shall be done in the same proceeding.

2- On the issue of payment of interim maintenance, the Bench held that it is mandatory for the parties to file affidavit of disclosure of assets and liabilities in all maintenance proceedings, including the pending proceedings before the concerned Family Court/District Court/Magistrate Court, as the case may be, throughout the country.

3- On the criteria for determining the amount/quantum of maintenance, the Apex Court held that factors such as status of the parties, reasonable needs of the wife and dependent children; whether the applicant is educated and professionally qualified; etc. shall be taken into consideration.

4- Furthermore, the Bench held that maintenance in all cases will be awarded from the date on which the application for maintenance is filed.

5- On the issue of enforcement of orders of maintenance, the Court held that an order or decree of maintenance may be enforced like a decree of a civil court.

Suchitra Upadhyay

Associate

The Indian Lawyer & Allied Services