In the most unprecedented events in the history of the Supreme Court (SC) of India, four senior most SC Judges, namely Justice Jasti Chelameswar, Justice Ranjan Gogoi, Justice Kurian Joseph and Justice Madan B Lokur have publicly aired, in a Press Conference dated 12.01.2018, their differences and grievances against the Chief Justice of India, Justice Dipak Misra (CJI) against the alleged allotment of important matters by the CJI to certain Benches of preference and the alleged formation of Constitution Benches by the CJI by including only certain Judges and ignoring Senior Judges of the Apex Court.

The 4 Judges, who are all members of the SC Collegium, have released a letter, which was earlier written to the CJI, to the media detailing their critique of the CJI which stated the following:

  1. Certain judicial orders passed by the SC have adversely affected the functioning of justice delivery system.
  2. It is a privilege of the Chief Justice to form a roster and assign cases to different judges/benches of a court. But it does not imply that it is recognition of any superior authority of the Chief Justice over his colleagues. Rather, the Chief Justice is only the first among equals.
  3. While determining a roster, there are well-settled and time honored conventions to guide a Chief Justice as to the strength of the Bench required to deal with a particular case or the composition thereof.
  4. Any departure from the aforesaid two rules is not desirable as it would create doubts about the integrity of the Institution.
  5. They have made allegations against the current CJI pertaining to his non-adherence to the twin Rules above-mentioned in preparing the roster and assigning important cases to benches of his preference without any rationale.
  6. They have referred to a two-Judge Bench SC matter of P. Luthra vs. Union of India, 2017, wherein a writ petition was filed before the SC challenging the recommendation of four names by the SC Collegium in May, 2016 for appointment as SC Judges, on certain grounds, one of which is that the Collegium should not have made the recommendation without finalizing the Memorandum of Procedure (MoP), which has to be complied with for appointment of judges to high courts and SC, as suggested by the Constitution Bench of the Supreme Court vide judgment dated 16.10.2015 in Supreme Court Advocates-on-Record Association & Anr. Vs. Union of India & Ors.
  7. The two-Judge Bench of SC in P. Luthra (supra) had rejected the Petition and held that the Memorandum of Procedure should be finalized soon, in view of larger public interest.
  8. But the four SC Judges objected to and stated that the issue about finalization of MoP was already dealt by the Constitution Bench of the SC in Supreme Court Advocates-on-Record Association & Anr. (supra). Later, the MoP was also finalized by the then CJI and the Collegium, and was sent by the then CJI to the Government, to which the latter never responded. So, the MoP should be deemed to be accepted by the Government. Therefore, there was no occasion for the two-Judge Bench in P. Luthra (supra) to make any observation about finalization of the MoP or that such issue should not linger on for an indefinite time. Thus, matter of such grave importance should be dealt with by none other than a Constitution Bench.
  9. The four SC Judges have asked the CJI to view this issue with serious concern and to rectify the situation and take remedial measures after discussing it with other members of the Collegium and if need be, with other Judges of the SC.

The four SC Judges further stated about the alleged preferential treatment by the CJI that unless this institution is preserved and it maintains its equanimity, democracy will not survive in this country or any country. For a survival of a democracy it is said that a hallmark of a good democracy is an independent and impartial judge. It has been speculated by some SC Advocates that the constitution of Benches and allocation of matters is being administratively done by the SC in a manner more palatable to the Government.

The 9-Judge Bench of the Apex Court in Supreme Court Advocates-on-Record Association & Anr vs. Union of India & Ors 1993 had held that independence of the Judiciary is a part of the basic structure of the Constitution of India. Further, the SC herein made the following observations and rulings:

  • The Judiciary, under the Constitution, is designed to act as an intermediary body between the people on the one side and the Executive on the other.
  • The role of the Judiciary, under the Constitution, is a pious trust reposed by the people. 
  • In the event that the Judiciary fails, the Constitution also fails and as a result, people might opt for some other alternative.
  • Independence of Judiciary is a sine qua non of democracy, i.e. so long as the Judiciary remains truly distinct from both the Legislature and the Executive, the general power of the people can never be endangered from any quarters.
  • That the judicial independence is inextricably linked and connected with the constitutional process of appointment of Judges of the higher courts. Therefore, there cannot be an independent Judiciary if the power of appointment of judges vests in the Executive. So, if the final say of the Executive in the process of appointment of judges is excluded; only then can the independence of Judiciary (i.e. independence of individual judges as well as of an institution as a whole) be maintained. That is because the Governments – Central or the State – are parties before the courts in a number of cases.
  • Moreover, the SC stated that the view of the Chief Justice of India is to be expressed in the consultative process as truly reflective of the opinion of the Judiciary, which means that it must necessary have the element of plurality in its formation. It implies that in actual practice, the final opinion expressed by the Chief Justice is not merely his individual opinion, but an opinion formed collectively by a body of Judges at the apex level in the Judiciary.

There have been mixed reactions across the country to this unprecedented move of the four SC Judges. The SC Bar Council has decided to form a 7-member delegation of the Council who will meet the 4 SC Judges to resolve the matter at the earliest.


Harini Daliparthy

Legal Associate

Tags :


The Government made a major move to attract more foreign direct investment(FDI) into the country by relaxing FDI norms in key sectors which are as follows:

  • 100 per cent FDI under automatic route in single brand retail trading (SBRT) on 10th January, 2018. It is also likely to benefit big foreign single brand retailers such as IKEA
  • It also allowed foreign airlines to invest up to 49 per cent under approval route in national carrier Air India. This move is expected to expedite the divestment process for Air India.
  • 100 per cent FDI in construction development via automatic route was also cleared.

The Government permitted foreign airlines to invest up to 49 per cent in disinvestment-bound Air India and liberalised rules for foreign investment in single brand retail, construction and power exchanges.

Chandrajit Banerjee, Director General, CII said: “India continues to attract high levels of foreign direct investment. Today’s announcement includes multiple measures targeted at specific sectors where opportunities exist……the decision to permit foreign airlines to invest up to 49 percent in Air India is expected to bring some capital to support a turnaround in the national carrier.”

The Union Cabinet has decided to allow foreign investments, including from foreign airlines, to up to 49 per cent in Air India but the relaxation of FDI norms for foreign airline investment in Air India is subjected to certain conditions such as the substantial ownership and effective control of Air India shall continue to be vested in an Indian national.

Anaindya Banerjee, Currency Analyst at Kotak Securities said that “The relaxed rules will give an additional push to the rupee, which is likely to gain this year.”

New FDI norms in a SBRT sector will gain further impetus due to the process of not being subject to regulatory scrutiny and approval process.

The relaxed FDI norms should lead to further increase in foreign investment inflows and to provide ease of doing business in India.

Taruna Verma

Senior Associate


Tags :



The Muslim Women (Protection of Rights on Marriage) Bill, 2017 also known as the Triple Talaq Bill (“the Bill”) failed to make any progress in the Rajya Sabha in the winter session of Parliament on Thursday, 4th January 2018.

The Bill seeks to outlaw talaq-e-biddat or instant triple talaq and punish offenders with up to three years in jail as punishment.

The Government placed the Bill in the bottom of priority in the list of business, to which the Opposition strongly objected. However, the Bill has now been pushed without any discussion to the Budget Session that begins on 29th January 2018.

The Bill was cleared by the Lok Sabha through a voice vote on 28th December 2017.  The Bill has to be cleared by the Rajya Sabha before it is made law. However, due to a deadlock over the Opposition’s demand seeking its reference to a Select Committee for close scrutiny, the Bill failed to be cleared by the Rajya Sabha.

The Leader of Opposition in the Rajya Sabha and Congress Member of Parliament, Mr. Ghulam Nabi Azad said that the Bill was not fit to be passed as it as it would “finish off Muslim women” instead of “empowering them.”

Leader of the House and Finance Minister of India, Mr. Arun Jaitley questioned the validity of the Opposition’s motion, stating that the statutory requirement of 24 hours advance notice was not given. He also stated that the work of a Select Committee was to improve the Bill. Further Mr. Jaitley said “A saboteur of a Bill can never be on the Select Committee. It is a Parliamentary proceeding. As such they would be disqualified from being a part of it,”.

Deputy Chairman of the House P. J. Kurien responded that the rule raised by Mr. Jaitley that a prior notice should be given is correct but said, “The Leader of the House is a very learned advocate himself and all points raised by him are of relevance…..However, the same rule adds that the Chairman of the House (Vice-President of India M Venkaiah Naidu) has the power to admit such a motion and which is why I cannot overrule it. It is now admitted and hence is the property of the House, only members can amend it,”.

The Rajya Sabha, which had 13 sittings during the winter session that started on 15th December 2017, saw the passage of nine Government Bills.

Only time will tell whether the rights of the Muslim women will be protected by the law.

Taruna Verma

Senior Associate

Tags :


In a recent case of RBL Bank Limited vs. MBL Infrastructures Limited 2017, the National Company Law Tribunal (NCLT) Kolkata Bench has passed on Order with regard to non-defaulting promoters/guarantors who endeavor to save their companies. Herein, the RBL Bank (Creditor) had initiated a corporate insolvency resolution process against the corporate debtor, MBL Infrastructures under Section 7 of the Insolvency and Bankruptcy Code 2016, which was admitted by NCLT. Thereafter, a Resolution Applicant (Applicant), personal guarantor of the Corporate Debtor, submitted a Resolution Plan (Plan) in the meetings of Committee of Creditors (Meetings). After several deliberations and discussions about the Plan in the Meetings, the Applicant incorporated their feedback in the Plan and submitted it to the Resolution Professional, appointed by the NCLT to conduct the corporate insolvency resolution process, who in turn would submit the Plan to the Committee of Creditors for their voting.

Meanwhile, the Government of India had passed an Ordinance dated 23.11.2017 to amend the Code, and also introduced Section 29A that makes certain persons ineligible to be a resolution applicant including willful defaulters [Clause (b)], persons who have their accounts classified as non-performing assets [Clause (c)], promoters or those in management of control of the defaulting company, [Clause (g)], those who have an enforceable guarantee in favor of a creditor in respect of a corporate debtor under insolvency resolution process [Clause (h)], etc. Accordingly, such persons become ineligible to submit a resolution plan (specifying the details of restructuring a defaulter’s debt) as it may be considered undesirable to let them take charge of the company.

Consequently, the Applicant, claimed that the Guarantee it executed in favor of the Creditor in respect of the Corporate Debtor under Insolvency Resolution Process was not invoked by the Creditor, so as a result, it is not a defaulter under the Guarantee as given under Section 29A (h) and therefore, not ineligible to submit the Resolution Plan. On the other hand, the Committee of Creditors claimed that they had invoked the guarantee of the Applicant after the commencement of insolvency proceedings, which has not been satisfied by the Applicant, so disqualified under Section 29A (h) from submitting the Resolution Plan.

The NCLT passed the following Order:

  1. Firstly, the object behind introducing Section 29A by way of Ordinance was not to disqualify the promoters/guarantors of the corporate debtor as a class from submitting a resolution plan. In fact, they are the most natural persons who are likely to submit a resolution plan during insolvency proceedings, unless the insolvency is caused due to their act or omission, fraud, deceit, etc. Rather, the intent of the Legislature was to exclude those classes of persons from offering a resolution plan, who on account of their antecedents may adversely affect the credibility of the processes under the Code. Moreover, if the entire class of promoters/guarantors, etc would be disqualified, then the provision would amount to be discriminatory and violative of Article 14 of the Constitution of India.
  2. Secondly, after commencement of Insolvency Proceedings, the NCLT passed an order declaring moratorium for prohibiting the institution of any suit, proceeding, etc against the Corporate Debtor, the transfer of property of the Corporate Debtor, etc. The NCLT held that during the moratorium period, no guarantee can be invoked, thus, the Applicant cannot be held as a defaulter under the Guarantee and so, his case is not covered under the Clauses (c) and (h) of Section 29A and is eligible to submit the Resolution Plan.

Therefore, the NCLT held that Section 29A does not exclude all promoters/guarantors of a corporate debtor, etc as a class from submitting a resolution plan for the corporate debtor, but excludes only those, who on account of their antecedents may adversely affect the credibility or reliability of the insolvency process initiated under the Code such as willful defaulters, disqualified directors, etc.


Harini Daliparthy

Legal Associate

Tags :


The Law Ministry of India has given its concurrence to a draft of Fugitive Economic Offenders Bill, 2017 (Bill)that will give powers to the Government to confiscate property of economic offenders and defaulters who flee India. The Bill aims to help confiscate assets of high-value economic offenders absconding from India till they submit to the jurisdiction of the appropriate legal forum. The provisions of the proposed Bill will override other legislations dealing with economic offences.

The Bill defines a ‘fugitive economic offender’ as any individual against whom a warrant for arrest in relation to a scheduled offence has been issued by any court in India, who (i) leaves or has left India so as to avoid criminal prosecution; or (ii) refuses to return to India to face criminal prosecution.

The proposed Bill has been drafted in pursuance of the Finance Minister Mr Arun Jaitley’s 2017–18 Budget speech promising legislative changes or even a new law to confiscate the assets of such fugitives. It seeks to deter economic offenders from evading the process of Indian law by fleeing the country.

The Bill entrusts the responsibility to hear such cases to the Courts under Prevention of Money Laundering Act, 2002 (PMLA).

The proposed Bill will be applicable in cases where the value of offences is over Rs. 100 Crores. It proposes to allow the Financial Intelligence Unit (FIU), the premier technical snoop wing under the Finance Ministry, to file an application for the declaration of fugitive economic offender for confiscation of their assets. Section 10, Declaration of Fugitive Economic Offender under its ambit directs the Special Court to confiscate the proceeds of the crime situated in India and any other proceeds of the offender. For that purpose, the Bill mentions under sub-section 10(2) that the confiscation order of the Special Court, to the extent possible, identify the property that constitutes the proceeds of the crime which are to be confiscated and, in case such properties cannot be identified, quantify the value of the proceeds of the crime. Additionally, the Special Court is barred from confiscating any property where any other person, apart from the economic offender, has an interest.

The Law Ministry of India has suggested that a “Saving Clause” be inserted since the provisions of the proposed Bill, Saving Clause provides for certain exception(s) in the statute. The proposed Bill provisions will have a bearing on the provisions of existing laws. The existing laws under which such offenders are tried include Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, (SARFESI), Recovery of Debts Due to Banks and Financial Institutions Act (RDDBFI) and Insolvency and Bankruptcy Code (IBC).

The proposed Bill will ensure prevention of corruption and the recovery of assets or proceeds of corruption. In the past, there have been instances of economic offender such as Vijay Mallya. The Government is making efforts to extradite Indian businessman Vijay Mallya from the United Kingdom. He owes over Rs. 9,000 Crore to various Indian Banks and had fled India to escape legal proceedings in connection with the loans.

The Government by adopting such legislation, envisages the proposed Bill to be economically viable and ensures to penalize defaulters of the financial system of India.

Taruna Verma

Senior Associate

Tags :


In a recent case of Macquarie Bank Limited vs. Shilpi Cable Technologies Ltd. 2017 SCC OnLine SC 1493, the Supreme Court has removed two threshold bars to the processing of an application under Section 9 of the Insolvency and Bankruptcy Code 2016 (the Code), which provides that an application before the National Company Law Tribunal (NCLT) may be made by an operational creditor to initiate corporate insolvency resolution process against a corporate debtor who has failed to make payment for the provision of goods or services.

Herein, according to the Appellant, the Respondent had failed to pay an outstanding amount to the Appellant, against provision of services, even after repeated notices were issued to it. Therefore, the Appellant, as an operational creditor, issued a demand notice under Section 8 of the Code to the Respondent, calling upon it to pay the outstanding amount but the Respondent deniedany such liability.

Therefore, the Appellant had initiated the insolvency proceedings against the Respondent before the NCLT by filing an application under Section 9 of the Code. But the NCLT dismissed the Section 9 Application at the threshold on the grounds that along with the Application, the Appellant had not complied with the mandatory requirement of Section 9 (3) (c) of the Code, i.e. it had not filed a copy of the certificate from a financial institution maintaining the accounts of the Appellant to confirm that the Respondent had not paid to the Appellant

On appeal against this Order, the National Company Law Appellate Tribunal (NCLAT) also upheld the Order passed by the NCLT and further stated that an advocate/lawyer cannot issue a notice under Section 8 on behalf of the operational creditor, if there is nothing in the Tribunal’s record to suggest that the advocate/lawyer was authorized by the Appellant to do so or that the advocate/lawyer holds any position in the Appellant Company. Thus, for the same reasons, the NCLAT also held that the Section 9 Application was not maintainable.

The Appellant, therefore, has challenged the Order passed by the NCLAT before the Supreme Court and the Supreme Court decided upon the following issues:

  1. Whether, in relation to an operational debt, the provision contained in Section 9 (3) (c) of the Code is mandatory?

The Supreme Court has held that filing a copy of the certificate from a financial institution maintaining the accounts of the Appellant to confirm that the Respondent has not made any payment to the Appellant is not a pre- condition to triggering the insolvency process under the Code on the following grounds:

  • The expression “confirming” implies that it is only an important piece of evidence which only “confirms” that there is no payment of an unpaid operational debt.
  • Also, as per Form 5 under Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, the Annexure III provides for attachment of copies of the relevant accounts from the banks/financial institutions maintaining accounts of the operational creditor confirming that there is no payment of the relevant unpaid operational debt by the operational debtor, if available. The Supreme Court held that this implies that such accounts are not a pre-condition to trigger the Code, and that if such accounts are not available, a certificate based on such accounts cannot be given.
  • Otherwise, if the provision contained in Section 9 (3) (c) of the Code is made a mandatory pre-condition, then only such operational creditors who have dealings with the banks/financial institutions listed under Section 3 (14) of the Code, may be competent to fulfill the pre-condition in Section 9 (3) (c) of the Code. As a result, an operational creditor having dealings with a non-scheduled bank/foreign bank, etc would not be able to fulfill such a pre-condition and thereby, become incompetent to invoke Section 9 of the Code.

Therefore, if the provision contained in Section 9 (3) (c) of the Code is made a mandatory pre-condition to invoking Section 9, then in the latter cases, Section 9 (3) would amount to a threshold bar to the processing of an application under Section 9 of the Code.

Thus, with regard to the first issue, the Supreme Court held that the Code cannot be interpreted to be discriminatory and apply to only those operational creditors who have dealings with the banks/financial institutions listed under Section 3 (14) of the Code and not to those who have dealings with a non-scheduled bank/foreign bank, etc. It held that “shall” in Section 9(3) does not take us much further when it is clear that Section 9(3)(c) becomes impossible of compliance in cases like the present.

  1. Secondly, whether a demand notice of an unpaid operational debt can be issued by a lawyer on behalf of the operational creditor?

The Supreme Court held that a demand notice of an unpaid operational debt can be delivered by a lawyer/authorized agent on behalf of the operational creditor on the following grounds:

  • Forms 3 and 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 require signature of the person authorized to act on behalf of the operational creditorand the position with or in relation to the operational creditor to be appended to both the demand notice (Form 3) as well as the application under Section 9 of the Code (Form 5).
  • Section 30 of the Advocates Act 1961 states that every advocate whose name is entered in the State roll shall be entitled to practice in all courts, tribunals, and before any other authority. Referring to another Supreme Court case, the Supreme Court herein held that the term ‘practice’ includes all preparatory steps leading to the filing of an application before a court/tribunal.

Therefore, with regard to the second issue, the Supreme Court held that a conjoint reading of Section 30 of the Advocates Act 1961, Sections 8 and 9 of the Code, the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 and Forms thereunder would yield the result that a notice sent on behalf of an operational creditor by a lawyer would be in order.

Thus, the Supreme Court has hereby removed the aforesaid mentioned two threshold bars to the applications filed under Section 9 and has directed the NCLAT to proceed further with these matters under the Code.

Harini Daliparthy

Legal Associate

Tags :


On Thursday, 7th December, 2017 the Delhi High Court in the case of Lalit Mohan Madhan and Ors. vs. Reliance Capital Ltd., held that arbitration and SARFAESI proceedings can be carried simultaneously for recovery of loan arrears.

Justice Navin Chawla ruled that “As the SARFAESI Act and the Arbitration /Debt Recovery Act are held to be complementary in nature and the doctrine of election has been held to be not applicable, it cannot be said that if a party has invoked one remedy, it is debarred from invoking the other during the pendency of the first one. Under the SARFAESI Act, specially under Section 13 thereof, the secured creditor will proceed against the security given for the loan. If the amount recovered from the secured asset is less than the amount claimed as due by the financial institution, it would necessarily have to go for an adjudication proceeding before proceeding against the other assets of the debtor. However, that does not mean that if it has invoked the adjudicatory process for determination of its loan amount, it stands denuded of recovering its loan from the secured assets in accordance with law i.e. SARFAESI Act,”.

The Court was hearing a Petition filed under Section 9 of the Arbitration and Conciliation Act, 1996, demanding that the Respondent, Reliance Capital Ltd., be debarred from taking any coercive action through notices issued under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) for recovery of the alleged amount of Rs. 6.4 crore.

The Petitioner had contended that the impugned notices under Section 13(2) and 13(4) of the SARFAESI Act should be stayed as the liability under the loan agreement has been adjudicated through arbitration. The arbitral award had not attained finality, as the same was under challenge before the Court.

It had further submitted that since the bank had taken recourse to the Arbitration and Conciliation Act, it cannot now resort to the SARFAESI Act for making any recovery.

The Bank, on the other hand, had contended that the SARFAESI Act provides for an alternate remedy to financial institutions for recovering loan amount. The Bank further contended that the Act itself does not bar the application of other legislations that the remedies can simultaneously sustain.

The Court relied on the decision rendered by the Supreme Court in the case of M.D. Frozen Foods Exports Pvt. Ltd. and Ors. vs. Hero Fincorp Ltd., AIR 2017 SC 4481, “the arbitration proceedings and SARFAESI Act proceedings can go hand in hand. It has held that the provisions of SARFAESI Act are a remedy in addition to the provisions of the Arbitration Act. The two Acts are cumulative remedies to the secured creditors. While SARFAESI Act proceedings are in nature of enforcement proceeding, the arbitration proceedings would be in form of an adjudicatory process. In the event that the secured assets are insufficient to satisfy the debt, the secured creditor can proceed against other assets in execution against the debtor, after determination of pending outstanding amount by a competent forum i.e. in this case the arbitration.”

The Court ruled that the Petitioner had failed to make out any prima facie case in its favour and dismissed the Petition  allowing the Bank to initiate proceedings under the SARFAESI Act.

Taruna Verma

Senior Advocate

Tags :


The Bombay High Court ruled on Wednesday, 6th December, 2017 in the matter of Neelkamal Realtors Suburban Pvt. Ltd. and Anr. vs. Union of India and Ors., that all provisions of the Real Estate (Regulation and Development) Act (RERA), 2016 are constitutional and valid.

RERA came into effect on 1st May 2017, a year after both Houses of the Parliament passed it. In September, after several petitions challenging RERA were filed in High Courts across the country, the Supreme Court stayed the proceedings in other Courts. The Supreme Court said that other Courts should wait for the Bombay High Court’s decision before hearing RERA-related matters and also asked the Bombay High Court to expedite the hearings on pending matters.

A Bench comprising of Justice Naresh Patil and Justice Rajesh Ketkar, in their 330 page Judgement, upheld various provisions of the Act in ten petitions filed by real estate developers and individual plot owners, all challenging the constitutional validity of the Act.

The builders had challenged Section 18 of the Act, under which they will have to return monies received with interest, if they fail to hand over possession or complete the project in a time bound manner, if the allottee wishes to withdraw from a project. It also contemplates the payment of monthly interest for the period of the delay to those allottees who choose not to withdraw.

To this the Court said, “….  in case the allottee wishes to withdraw from the project, without prejudice to any other remedy available, to return the amount received by him in respect of that apartment with interest at such rate as may be prescribed in this behalf including compensation.

If the allottee does not intend to withdraw from the project he shall be paid by the promoter interest for every month’s delay till handing over of the possession. The requirement to pay interest is not a penalty as the payment of interest is compensatory in nature in the light of the delay suffered by the allottee who has paid for his apartment but has not received possession of it. The obligation imposed on the promoter to pay interest till such time as the apartment is handed over to him is not unreasonable. The interest is merely compensation for use of money.”


The Bench, however, also allowed a significant leeway for the developers in the Judgement by permitting the State-level RERA Authority and the Appellate Tribunal to consider delays on a case-to-case basis, and not to cancel such projects or developers’ registration in cases where the delay was caused due to ‘exceptional and compelling circumstances’.

The Court ruled that “In case the promoter establishes and the authority is convinced that there were compelling circumstances and reasons for the promoter in failing to complete the project during the stipulated time, the authority shall have to examine as to whether there were exceptional circumstances due to which the promoter failed to complete the project. Such an assessment has to be done by the authority on case to case basis and exercise its discretion to advance the purpose and object of RERA by balancing rights of both, the promoter and the allottee.”

The Court also ruled on the appointment of Judicial Members to RERA Tribunals. Section 46 of the Act, which deals with appointments, allows a bureaucrat, who has held the post of Additional Secretary, to hold the post of Judicial Member, however, the Court partially struck down Section 46 (1) (b). The Court has directed that the two-member bench of the Tribunal should always consist a judicial member and majority of the members shall always be judicial members, instead of bureaucrats, as is the formation now.

While the Bench concurred with the State and the Union Government’s arguments, it said that the Authorities must also closely monitor the implementation of the Act, “We are conscious of the fact that the actual implementation of RERA needs to be closely monitored in the years to come,”.

The Bench, while upholding the provisions of RERA said, “RERA is not a law relating to only regulating concerns of the promoters but its object is to develop the real estate sector, particularly the incomplete projects, across the country. The problems are enormous and it’s time to take a step forward to fulfill the dream of the ‘Father of the Nation- To wipe out tears from every eye.”

Finally, the Bench ruled that RERA is crucial to protect the interest of flat buyers across the country.

Taruna Verma

Senior Advocate

Tags :


The National Green Tribunal (NGT) New Delhi has recently heard the matter involving severe environmental damage caused to the flood plains of River Yamuna. The NGT had earlier in 2015 approved the Delhi Jal Board’s project for cleaning and rejuvenation of River Yamuna (Project) falling in the Delhi NCR region which included construction of sewage treatment plants, rehabilitation of sewer line systems, etc. The NGT had also prohibited carrying out any construction activity in the demarcated flood plains of River Yamuna.

The flood plains of rivers are significant in the following manner:

  1. They facilitate the self cleansing ability of the rivers and their capacity to retain floodwater,
  2. They provide habitat to several riparian plants and animals, natural vegetation including trees, shrubs and other aquatic vegetation,
  3. They create wetlands that help biological cleaning of waste water before it could enter and pollute the river, etc.


In the present case, the Art of Living Organization (the Respondent) had organized the World Culture Festival Celebration 2016 (Event), where, they had resorted to illegal and unauthorized dumping of debris and construction on the flood plains of River Yamuna. According to a Committee constituted by the NGT:

  • A huge gathering at this site had caused vast amounts of solid and liquid pollution,
  • Most of the wetland vegetation at the site had been removed by excavation or buried under the debris to provide access to the bridges,
  • The plains were filled with soil or debris and the ground had been leveled flat from the use of heavy vehicles at the site,
  • Construction material used in building huge stage, large cabins/tents were scattered all over,
  • Roads were constructed to provide access to the event, etc.


As per the Committee, all these activities led to severe damage to the environment and natural ecosystem, changes in the physical, chemical and biological characteristics of the soil and the complete destruction of the flood plains of River Yamuna, which may have adverse affects on the environment including the creation of an oxygen deficient environment, leaching of toxic substances derived from the debris and other wastes, etc.

The Delhi Development Authority (DDA) had initially permitted the Respondent to use the land in the river bed/flood plain for the Event on certain terms and conditions such as use of eco-friendly materials, no dumping of wastes, no carrying out activity in the vicinity of the River, construction of toilets, permissions and sanctions from various authorities concerned, etc. But the NGT held that the Respondent did not comply with most of the terms and conditions of the DDA.

Therefore, the NGT herein adopted the principle of no fault liability i.e. the Respondent had the onus/burden to take all the precautions that were required to be taken prior and subsequent to the Event. Failing which, the Respondent has been held responsible for the environmental degradation of the flood plains of River Yamuna and that it has to restore the place to its original condition as it was prior to the Event. The NGT has also directed the DDA to undertake and execute work of restoration/restitution of the flood plains of River Yamuna and other works connected thereto and use the compensation paid by the Respondent for this purpose, and to ensure construction/establishment of bio-diversity park at the site.


Harini Daliparthy

Legal Associate

Tags :


The Supreme Court, on Thursday, 30th November 2017 issued guidelines to reduce the number of deaths that occur as a result of road accidents and directed States and Union Territories to implement Road Safety Policy dated 2010 with seriousness

The Bench comprising Justice M.B. Lokur and Justice Deepak Gupta were hearing a PIL filed by Dr. S. Rajaseekaran, who is the Chairman and Head of Department of Orthopaedic Surgery, Ganga Hospital, Coimbatore. The Petitioner had contended that 90% of deaths in road accidents are due to lack of proper implementation of Road Safety Rules.

An analysis of the Report by the Ministry of Road Transport and Highways published on September 2017 titled “Road Accidents in India-2016” shows that a total number of 4,80,652 road accidents took place in the country in the year 2016 of which 1,50,785 accidents claimed life and 4,94,624 accidents left persons with grievous injuries.

The Supreme Court noted the statistics given by the Petitioners , which reads as, “the number of deaths due to road accidents in the country was said tobe over 100,000 in a year, which translates to about one death every three minutes.”It further noted that the compensation awarded for deaths and other motor accident claims runs into hundreds of crores of rupees. During the course of arguments in the instant case, the Court had perused all documents, data and reports on road safety and accidents and deaths, which have occurred over the years.

The Apex Court after having considered all aspects in the case and after making detailed study of the suggestions and submissions issued 25 directions, which include directions to 4 Union Territories and 3 States to formulate “Road Safety Policy” by January 2018 and carry out its implementation in an effective manner. The Court has directed the Union Territories and States, which have not formed road safety policies to formulate the same by January 2018. It has also directed all States and Union Territories to prepare a “Road Safety Action Plan” by the end of March 2018. Further, the Court also mandates safety norms as part of school curriculum.

The Court noted that, “It appears that one of the main reasons for road accidents is the poor quality of roads, improper design, etc,”

The Court has now made it mandatory for States and Union Territories to establish Road Safety Fund, the corpus of which would come from traffic fines collected. The money would be used to meet the expenses for road safety.

The Union Ministry of Transport has been asked to frame a protocol for road design, road quality and identification of black spots and also, to implement “traffic calming measures” at accident spots.

One can hope with the Supreme Court judgement road safety will now be given a priority and travelling will be less disastrous.

Taruna Verma

Senior Associate


Tags :