A bench of the Supreme Court of India comprising of Justices D.Y Chandrachud, and Ajay Rastogi has recently in the case of Punjab & Sind Bank and Others vs. Mrs Durgesh Kuwar,  Civil Appeal No 1809 of 2020, arising out of SLP(C) No 11985 of 2019 upheld a Judgment of the Indore Bench of the Madhya Pradesh High Court Judgment dated 18.03.2019 in a Writ Appeal arising out of an Order of the learned Single Judge dated 11.02.2019 wherein it quashed the transfer of a woman Bank employee, who had complained against an officer for sexual harassment. In the said Complaint she had also reported irregularities and corruption at her branch.

The aforementioned case involves the intersection of service law with fundamental constitutional precepts about the dignity of a woman at her workplace.

In brief, the facts pertaining to the present Appeal involves the Respondent herein, who was appointed as a Probationary Officer of the Punjab and Sind Bank, and later promoted to the post of Chief Manager in Scale IV. As a result of which, in and around September 2016, she was transferred to the Indore branch on promotion. On 11.12.2017, the Respondent was further transferred from the Branch Office at Indore to the Branch Office at Sarsawa in the District of Jabalpur. On 31.01.2018, the Respondent submitted a representation to the Zonal Manager, recording a reference to the circulars of the Bank governing the posting of women officers. She made a request for being retained at Indore. Following the earlier representation, she submitted a reminder on 15.02.2018 and a representation on 19.02.2018 to the Executive Director of the Bank.

The Transfer Order was challenged before the High Court of Madhya Pradesh under Article 226 of the Constitution of India 1950 as amended thereof in which the transfer was stayed by a learned Single Judge and transfer of the officer was quashed by the Judge vide its Judgment dated 11.02.2019. The learned Judge mentioned that the transfer of Respondent violates the circulars of the Bank as well as the guidelines issued by the Ministry of Finance in the Department of Financial Services. 

Being aggrieved by the Judgment dated 11.02.2019, the Bank as well as its General Manager, Zonal Manager and Deputy General Manager filed an SLP before the Hon’ble Supreme Court of India.

Observation and Decision

The Hon’ble Supreme Court analyzed the rival submissions by adverting to the settled principle that transfer is an exigency of service. It said that an employee cannot have a choice of postings. The Bank administrative circulars and guidelines are indicators of the manner in which the transfer policy has to be implemented. However, any administrative circular may not in itself confer a vested right which can be enforceable by a writ of mandamus. The main issue before the Court was whether the Order of the High Court quashing the Order of transfer can be sustained, having regard to the above principles of law.

The Hon’ble Supreme Court after considering all the vital documents on record and submissions of the Parties observed that “how the order of transfer was affected close on the heels of the allegations of corruption levelled by the respondent would indicate a clear case of malafides. It was urged that the respondent who was a Scale-IV officer, was posted to a Scale I level bank in the teeth of the Board Resolution dated 27 September 2017, approving the policy concerning the classification of branches”.

They added that “…this is symptomatic of a carrot and stick policy adopted to suborn the dignity of a woman who is aggrieved by unfair treatment at her workplace. The law cannot countenance this. The order of transfer was an act of unfair treatment and is vitiated by malafides”.

The Bench decided that the Respondent shall be re-posted at the branch office of Indore for a period of one year. Later, if any administrative exigency arises the competent authority of the Bank would be at the liberty to take any appropriate decision concerning her posting. The Hon’ble Court further observed sexual harassment at the workplace is an affront to the fundamental rights of a woman. The Court also allowed her costs of Rs 50,000.

The Coronavirus has caused global turmoil putting the economies of several countries in a crisis. Desperate times call for desperate measures, compelling the Finance Minister to take measures protecting the economy as best as it can. One of the #quickmeasures taken by the #FinanceMinister is to curtail small and medium enterprises going under due to the pandemic. The Finance Minister has, therefore, made changes in the Insolvency and Bankruptcy laws to #protectseveralbusinesses from going into #bankruptcy.

The following are the changes initiated by the Finance Ministry:

1)            The Government has recently raised the #threshold under Section 4 of the Insolvency and Bankruptcy Code, 2016 as amended thereof (IBC) for #invokinginsolvencyproceedings to Rs 1 Crore from the current Rs 1 Lakh limit, on 24.03.2020.

2)            The Government is considering #suspendingtheprocessofinitiation of corporate insolvency resolution proceedings (CIRP) against corporate debtors, if the Corona Pandemic continues beyond 30.04.2020, under the following provisions of IBC, for a period of six months. This measure is probably being considered so as to stop companies at large from being forced into insolvency proceedings due to force majeure causes of default.

3)            As part of the relief measures, the Finance Minister has also stated no additional fee will be charged for late filing during a moratorium period from 01.04.2020 to 30.09.2020. In respect of any documents to be filed in the Ministry of Corporate Affairs (MCA) Registry irrespective of its due date.

In recent times, the world has witnessed a rise in demand for corporate lawyers across the globe. With the advent of liberalization, globalization and digitalization, there has been an increase in cross-border trade and commerce, foreign investments, incorporation of entities, start-ups, joint venture, partnerships, e-commerce platforms, etc, for doing business in India.

For the purpose of doing business in India, the parties are required to have knowledge about the governing laws of India, sectoral regulations, foreign direct investment (FDI) policies, Government licenses and approvals, contractual obligations, dispute resolution mechanisms, forms of entry in India, drafting of proper terms of a contract in order to safeguard the interests of the parties, protection of intellectual property rights, conducting due diligence, post-contractual obligations, mergers and acquisitions, and so on.

This is where the requirement of a corporate lawyer becomes relevant and imperative. Only a professional lawyer having adequate experience in corporate and commercial laws which include laws on investment, business, international trade, insolvency and bankruptcy, cyber, competition, real estate, arbitration, dispute resolution, out-of-court settlement, and management of litigation, restructuring, business collaborations/tie-ups, etc, shall be in a position to render correct legal advice to its client, at all stages of business.

Corporate lawyers, unlike litigation lawyers, are required at the inception of the business. Their role begins with advice on a particular sector after which they help the client to set up a business entity, fulfil legal and regulatory compliances, and finalize various contracts within the business with employees and also with third parties. Overall corporate lawyer can ensure compliance with the law from start till operations.

No doubt there is a requirement of corporate lawyers in India. However, the current market scenario shows a saturation of lawyers in the legal field. This has led to unemployment and frustration amongst new lawyers. While there is a demand, one cannot overlook the fact that for every one job there would be ten available lawyers, thereby keeping a huge gap between the demand and the supply.

About the Author

Mrs Sushila Ram Varma is an Advocate and Chief Legal Consultant of The Indian Lawyer & Allied Services. She has a strong functional knowledge of the law, with 25+ years of excellence and exposure to both domestic law as well as international law. The areas of practice include corporate and commercial laws, advisory and transactional work, etc.

The Indian Lawyer & Allied Services functions as a multi-services Law Firm operating out of New Delhi, Mumbai, Hyderabad, Chennai and Darjeeling. The Firm offers a wide range of services including Legal Services, Financial Advisory Services, Business Consultancy, Accountancy Services, Taxation and Risk Management, to clients across the globe.

It is very difficult to define negligence because there is no consensus on this; however, in jurisprudence of Tort it is a highly debatable issue.  According to Moni v. State of Kerala "In the case of a medical man, negligence at the time means failure to behave according to the expectations of reasonably qualified medical people. There may be one or more perfectly appropriate standards, and if it complies with all of those correct standards, then it is not negligence." Therefore, it involves three constituents of negligence:
(1) A legal duty of the party complained of to exercise care towards the party complaining the former's conduct within the scope of his duty
(2) Breach of that duty; and
(3) Consequential damage that follows.

Lately, Indian society has developed an awareness regarding their rights and medical negligence. The reason is that the degrading standards of professional competence, facilities, and the appropriateness of their therapeutic and diagnostic methods. Earlier, People were afraid of suing doctors or hospitals in but with the passage of time, the law has played a major role in raising awareness among people about their rights.

Negligence is a breach of a moral responsibility to care. A person's legal duty means the obligation which the law gives each person to respect the other's legal rights. Hence a person's legal right can be defined as the protections given by law to protect his citizen's interests. We must remember, then, that where there is a legal right there is a legal remedy. The maxim "ubi jus ibi remedium" deduces this.

The level of treatment needed to be practised by medical practitioners to discharge any criminal liability resulting from their actions or omissions was considerably ambiguous. Section 304-A of the Indian Penal Code 1860 [IPC] prescribes death penalty on account of a person's rash or negligent conduct. It is under this provision that doctors or other medical professionals are generally prosecuted under criminal law. While there is protection given to accidents caused during the performance of lawful acts [Section 80, IPC] and acts not intended to cause death and performed for the benefit of the person by his consent and in good faith [Section 88, IPC], the fear of criminal liability has been lingering while performance of their duty even today.

The Indian Supreme Court has also issued some guidelines in deciding the test for medical negligence and prosecution of medical practitioners. What goes to the basis of those rules is that the loss of reputation is almost permanent once a criminal investigation starts against a doctor. It was also taken into account that since the essence of the work done by doctors includes the public service, it is much more important to provide such guidelines in this regard.

Medical negligence comes under 2 categories under Indian law; criminal negligence and negligence under the Consumer Protection Act. There are separate clauses relating to the relief in the form of penalty and compensation. The following is an empirical analysis of the above mentioned laws on medical negligence.

CRIMINAL LIABILITY:

Recently, in Jacob Mathew v. Punjab State and another 456/2005. Criminal Appeal No. 144–145 of 2004, the Supreme Court ruled that, in order to hold a doctor criminally liable for a patient's death, it must be proven that there was negligence or misconduct on the part of the doctor that went beyond a mere issue of civil liability compensation. Legal responsibility would only occur if the practitioner did something in disregard of the life and safety of the patient.

Under section 304A of the Indian Penal Code, death caused by a rash and negligent act attracts imprisonment for up to two years, or a fine, or both. The duty of collecting evidence of criminal liability is on the complainant. The accused person will be presumed innocent until the prosecution adduces facts beyond reasonable doubt; the civil court will be satisfied with a mere preponderance of probability. For these reasons, an act viewed in a civil court as negligent does not actually need to be guilty of criminal negligence.

The Court noted that as citizens become increasingly aware of their rights, more lawsuits are being brought against doctors in civil courts, as is also the case under the Consumer Protection Act, 1986, claiming "deficiency in service." Doctors are not only charged under IPC Section 304A. They are also prosecuted under Section 336 (rash or negligent endangering human life), Section 337 (causing hurt to any person by doing some rash or negligent act that would endanger human life) or Section 338 of the IPC (causing grievous harm to any person by doing any rash or negligent act that would endanger human life).

The Court observed that to obtain unfair compensation, charges of rashness or negligence are frequently brought against doctors by individuals without sufficient medical knowledge. This leads to severe embarrassment and harassment of doctors forced to obtain bail in order to avoid the arrest. They would have to face prison if bail is not issued. They may end up being exonerated of the charges; but they will have suffered a loss of reputation in the meantime; perhaps irreversibly. Hence the propensity to initiate these cases must be curbed.

CIVIL LIABILITY

Civil liability usually includes claims in the form of compensation for damages suffered. Whether there is some breach of duty of care during service or when the patient is under the supervision of the hospital or the medical professional, they are held responsible for any wrongdoing. They are liable in the form of compensation for the damages. Often senior doctors are also held vicariously liable for the wrongs the junior doctors have committed.

 Since the 1990s, there has been a great deal of speculation and controversy on whether medical facilities are included expressly or categorically in the definition of "services" as enshrined in Section 2(1)(o) of the Consumer Protection Act,1986. Deficiency of service (Section 2(1) CPA,1986 relates to any fault, imperfection, deficiency or inadequacy in the consistency, nature or manner of performance imposed by or under any law for the time being in force or committed to be performed by a person pursuant to a contract or otherwise relating to any service.

In 1995, the Supreme Court ruled in Indian Medical Association v. V P Shantha AIR 1996 SC 550: (1995) 6 SCC 651 within the scope of the 'service' specified in the Consumer Protection Act, 1986. It established the relationship between patients and medical professionals by granting contractual patients the right to sue doctors if they suffered injuries for compensation in the course of care in consumer protection courts that were 'procedure free.'

Cases of neglect may involve blood transfusion from wrong blood classes, leaving a mop in a patient's abdomen after surgery, extracting organs without permission and prescribing injury-related medication. Individuals providing medical advice and care clearly claim that they have the skills and knowledge to do so, that they have the capacity to determine whether to take a case, determine the care, and prescribe it. On a medical professional's part this is regarded as a "implied undertaking."

In the case of State of Haryana v. Smt Santra AIR 2000 SC 3335 the Supreme Court held that each doctor "has a duty to act with a reasonable degree of care and skill." However, since no human being is perfect and even the most renowned expert can make a mistake in the diagnosis of a disease, a doctor can only be held liable for negligence if one can show that he / she is guilty of a failure that does not result in a failure. According to Lord President Clyde's Findings in Hunter v. Hanley (1955) SLT 213, an error of judgement constitutes negligence only if the defendant is a reasonably qualified practitioner with the usual professional credentials of the defendant.

The practice of Santhara, a custom practiced in the Jain faith, was brought to the social front when the PIL was placed before the Rajasthan High Court, which opened the debate as to whether the practice of Santhara falls within the limits of section 309 of the IPC on suicide, and whether the people who gave their support to the practice can be charged as suicide advocates under section 306 of the IPC.

This topic was not only significant to the Jain community, as it not only contained religious meaning, but also opened the debate whether the right to life also included the right to death and whether this state intervention infringes the freedom of religion.

The Concept. 

Santhara or Sallekhana is a religious practice in the Jain community where it is believed to be a means by which moksha (salvation) can be attained. It includes a person undertaking fast to death when he has fulfilled all the purposes of his life or when his body does not work.

The practice of Santhara shall be carried out in the following manner:

1. The person willing to commit Santhara must first discuss this with his priest before taking the vow of Santhara.
2. Further, he has to announce it publically.
3. He also practices michhami dukkadam, where he apologizes to people for the hurt he has done during his lifetime, and then takes meditation for introspection.
4. He then gradually begins to detach himself from food and water, whereby his soul finally leaves his body and attains moksha (salvation).

According to Jains, this is a way of purging oneself from bad karma and achieving moksha. Within the Jain community, the tradition of renouncing all impulses and desires and taking death in its own footsteps is highly regarded. While there is no mention of a specific age for pursuing santhara, as it needs an end to all purposes of life, it is taken only by elderly people.

The Controversy

It was claimed in the PIL that Santhara amounts to self-destruction and hence amounts to suicide under section 309 of the IPC and that it also violates the right to life as a right to death is not provided for in Part III of the Constitution. In the present case, however, there were reasons for separating Santhara from suicide

“The main psychological and physical features of suicide are: (1) The victim is under an emotional stress; (2) He or she is overpowered with a feeling of disgrace, fear, disgust or hatred at  the time when suicide is resorted to; (3) The main intention of committing suicide is to escape from the consequences of certain acts or events; disgrace, agony, punishment, social stigma or tyranny of treatment etc. (4) The kind is far away from religious or spiritual considerations (5)The means employed to bring about the death are weapons of offence or death; (6) The death is sudden in most cases unless the victim is rescued earlier; (7) The act is committed in secrecy (8)it causes misery or bereavement to the kith and kin.”

Therefore, on the basis of a contrast between these features and the steps involved in Santhara, the disparity between the two can easily be reported.

In addition, the judgments of Gian Kaur, in which the Constitutional Court of the Supreme Court upheld the constitutional validity of Section 309 of the IPC by overruling P. The case of Rathinam and the provisions of Article 21 of the Constitution do not include the: ‘right to die’ or the ‘right to be killed’ and Aruna Ramchandra Shambhaung still exists a void that needs to be filled with respect to the idea of suicide and the' right to die.' Gian Kaur who invalidates the wrongful termination of life while Aruna Shambhaung only accepts passive euthanasia but, in both cases, the death in question was favoured due to escape from life and to guilt and escape from life. If one deals with situations where, out of guilt and frustration with life, a person makes a sudden decision to bring an end to life and the latter deals with a situation where, out of constant and intolerable pain and misery, death is assumed to be a relief rather than a continuation of life in this way, and not only by passive means and not through active termination of life. The case with santhara does not fall in any of the two realms, since either here or the decision to end life is a sudden decision to escape life out of frustration, and neither is the decision taken out of persistent and intolerable pain and misery, i.e. it is not a case of' mercy killing.' It is a situation where a person who believes that all his or her worldly tasks are finished and that he or she must also celebrate death and embrace death in his or her own footsteps.

Not an essential practice

The judgment of the High Court also finds that Santhara is not an integral practice of the Jain faith and hence the security of the Constitution cannot be provided on the grounds of religious freedom. 

The court holds that there is no integrity whatsoever in the act of fasting and that, therefore, there is no freedom to practice Santhara as an extension of one's right to life under Article 21. Since the 1960s, the court has reviewed individual religious canons on a case-by-case basis to decide what constitutes an important religious activity. “We do not find in any of the scriptures, preaching, articles or practices followed by the Jain ascetics, the Santhara has been treated as an essential religious practice, nor is necessarily required for the pursuit of immortality or moksha.”

The Jain community disagreed, however, that the Santhara was not an exercise in the search of an unnatural death, but rather a custom inherent in the ethical decision of a person to live with dignity until death. It is a ceremonial act of purification, carried out in consultation with the guru, and follows the most thorough procedures. According to religious scriptures, this is allowed and is an integral part of Jainism. 

Conclusion.

In its appeal, the Supreme Court was satisfied that the crime of Santhara was distinct from that of suicide under section 306 of the IPC and that the decision of the High Court of Rajasthan to declare Santhara an offense remained.

The month of March 2016 saw a new sunrise in the Real Estate sector in the form of Real Estate (Regulation and Development) Act, 2016, creating the Real Estate Regulatory Authority and the Real Estate Appeals Tribunal to give impetus to the interests of consumers and henceforth to the regulation of the real estate sector, which makes a significant contribution to job creation and to the GDP of our business. RERA has brought openness to the sector, improved it and brought home a certain degree of professionalism.

RERA requires each developer to ensure transparency when communicating with customers.

The Act describes ‘Promoter' as ‘Owner, ‘Developer’ 'Development Authority' or ‘Holder of the Power of Attorney’ from the Land-Lord of the Construction / Development Site: 

• Person who builds or starts the construction of an individual building or a building consisting of apartments or transforms the current structure into apartments for sale on the open market.
• An individual who develops land into a project consisting of plots that may or may not include any buildings, to be sold in whole or in part.
• Public body or development authority in respect of allotments of buildings or apartments constructed by them or plots of land either owned by them or made available to them by the Government for the purpose of sale.
• Apex State level and primary cooperative housing finance society that builds apartments or buildings for its members or designated individuals.
• Person acting as builder, colonizer, contractor, investor, estate investor or by some other name or claim to be the holder of the power of attorney from the owner of the property on which the house or apartment is being built or the plot is being created for sale.
• Any other person who builds a house or apartment to be sold to the general public.

For the purposes of RERA, where the developer / constructor is different from the seller of the land, both shall be considered promoters and are jointly liable under this Act.

‘Real Estate Project' is defined as the construction of a building or a building consisting of apartments, or the conversion of an existing building or part of it into apartments, or the construction of land into plots or apartments, for the purpose of selling all or some of the said apartments or plots or buildings, and includes common areas, development works, all improvements and structures.

In addition, the Act requires compulsory "Registration" with RERA of Real Estate Projects within the limits of the Promoters ' Planning Areas with the State Real Estate Regulatory Authority under which the Promoter is prohibited from advertising, promoting, booking, selling or offering for sale, or from inviting anyone to purchase any part or portion of a real estate project.

In addition, Real Estate Agents are obligated to register before they can facilitate the sale / purchase of a real estate project or any part thereof.

RERA is equally important to commercial projects as it is to residential ones.

However, the Act referred to in Section 3 provides for some exceptions in the field of real estate projects which are excluded from registration:

·         The land proposed for development does not exceed 500 square meters or the number of apartments does not exceed 8 (eight) in number;

·         In cases where the Completion Certificate' for the project was given to the proponents prior to the start of the RERA; 

·         Work is limited to refurbishment, repair or restoration and does not cover the promotion, advertisement, sale or reassignment of any apartment, plot or house.

Section 4 of the RERA provides for registration of real estate projects, where each Promoter is required to apply for registration along with various documents listed below :-

·         Brief details of the enterprise including name, registered address, enterprise type and particulars of registration of such enterprise along with promoter’s names and photographs.

·         Brief details of the projects undertaken by the sponsor in the last five years, whether completed or not, including the present status of ongoing projects, delays in execution, details of pending lawsuits, land type and any unpaid payments.

·         Authenticated copy of the approvals and the certificate of commencement from the competent authority, if applicable.

·         Approved design, construction design and specifications of the proposed project or phase thereof and of the entire project as approved by the Component Authority.

·         Plan of construction work to be carried out in the proposed project and the proposed facilities to be provided, including fire-fighting facilities, drinking water facilities, emergency rescue services, use of renewable energy.

·         Location descriptions of the project, including a simple demarcation of the land allocated to the project along with its borders, including the latitude and longitude of the end points of the project.

·         Performa of the allocation document, the sale agreement and the conveyance act agreed to be signed with the allocated parties.

·         Amount, size and carpet area of the apartments for sale in the project along with the private balcony or veranda area and the exclusive open terrace area with the apartment, if applicable.

·         Number, location and size of the garage for sale in the project

·         Names and addresses of the real estate brokers for the proposed project, if any.

·         Names and addresses of designers, architects, structural engineers and other individuals associated with the construction of the proposed project.

·         A declaration, accompanied by an affidavit, to be signed by the promoter or by any individual approved by the promoter, stating that:

·         The Promoter shall have legal title to the land proposed for creation, along with legally valid documentation authenticating that title, in the event that the land is owned by another individual.

·         Land shall be free from all encumbrances or encumbrances on the land, including any ownership, title, interest or name of any person in or over the property.

·         Timeframe during which the promoter aims to complete the project or process, as the case may be.

·         Promoter shall take all outstanding approvals on time from the appropriate authorities.

·         Furnish additional documents as needed.

·         Seventy per cent of the allocated real estate project sums are deposited in a separate account to be held in a scheduled bank to cover the cost of land and building expenses, which are only used for that purpose.

The applicant shall deduct the sums from the separate account to cover the expense of the project, in proportion to the percentage of completion of the project after it has been approved by the builder, the architect and the chartered accountant, in effect, that the withdrawal is in proportion to the percentage of completion of the project.

The promoter shall also, within six months of the end of each financial year, be audited by a chartered accountant in practice and shall produce a statement of accounting duly certified and signed by that chartered accountant.

Grant for Registration

Registration of real estate projects is discussed in Section 5 of RERA. Within a period of thirty days [of what], the Authority shall grant registration subject to the provisions of this Act and shall provide the Applicant with the registration number, including the login I d and the password, for access to the Authority's website and for the establishment of its website and for the details of the proposed project.

The Authority can also refuse the application with reasons to be communicated in writing [to whom] if the application does not conform the the procedure under the Actunless the applicant has been given the opportunity to be heard on the matter.

If the Authority refuses the application, the Project shall be deemed to have been registered and, within seven days of the expiry of the said date, the Authority shall, within thirty days, provide the promoter with the registration number, the login Id and the password for access to the website of the Authority and the website of the Authority and fill in the d page.

Validity of  Registration  of  RERA.<

The month of March 2016 saw a new sunrise in the Real Estate sector in the form of Real Estate (Regulation and Development) Act, 2016, creating the Real Estate Regulatory Authority and the Real Estate Appeals Tribunal to give impetus to the interests of consumers and henceforth to the regulation of the real estate sector, which makes a significant contribution to job creation and to the GDP of our business. RERA has brought openness to the sector, improved it and brought home a certain degree of professionalism.

RERA requires each developer to ensure transparency when communicating with customers.

The Act describes ‘Promoter' as ‘Owner, ‘Developer’ 'Development Authority' or ‘Holder of the Power of Attorney’ from the Land-Lord of the Construction / Development Site: 

• Person who builds or starts the construction of an individual building or a building consisting of apartments or transforms the current structure into apartments for sale on the open market.
• An individual who develops land into a project consisting of plots that may or may not include any buildings, to be sold in whole or in part.
• Public body or development authority in respect of allotments of buildings or apartments constructed by them or plots of land either owned by them or made available to them by the Government for the purpose of sale.
• Apex State level and primary cooperative housing finance society that builds apartments or buildings for its members or designated individuals.
• Person acting as builder, colonizer, contractor, investor, estate investor or by some other name or claim to be the holder of the power of attorney from the owner of the property on which the house or apartment is being built or the plot is being created for sale.
• Any other person who builds a house or apartment to be sold to the general public.

For the purposes of RERA, where the developer / constructor is different from the seller of the land, both shall be considered promoters and are jointly liable under this Act.

‘Real Estate Project' is defined as the construction of a building or a building consisting of apartments, or the conversion of an existing building or part of it into apartments, or the construction of land into plots or apartments, for the purpose of selling all or some of the said apartments or plots or buildings, and includes common areas, development works, all improvements and structures.

In addition, the Act requires compulsory "Registration" with RERA of Real Estate Projects within the limits of the Promoters ' Planning Areas with the State Real Estate Regulatory Authority under which the Promoter is prohibited from advertising, promoting, booking, selling or offering for sale, or from inviting anyone to purchase any part or portion of a real estate project.

In addition, Real Estate Agents are obligated to register before they can facilitate the sale / purchase of a real estate project or any part thereof.

RERA is equally important to commercial projects as it is to residential ones.

However, the Act referred to in Section 3 provides for some exceptions in the field of real estate projects which are excluded from registration:

·         The land proposed for development does not exceed 500 square meters or the number of apartments does not exceed 8 (eight) in number;

·         In cases where the Completion Certificate' for the project was given to the proponents prior to the start of the RERA; 

·         Work is limited to refurbishment, repair or restoration and does not cover the promotion, advertisement, sale or reassignment of any apartment, plot or house.

Section 4 of the RERA provides for registration of real estate projects, where each Promoter is required to apply for registration along with various documents listed below :-

·         Brief details of the enterprise including name, registered address, enterprise type and particulars of registration of such enterprise along with promoter’s names and photographs.

·         Brief details of the projects undertaken by the sponsor in the last five years, whether completed or not, including the present status of ongoing projects, delays in execution, details of pending lawsuits, land type and any unpaid payments.

·         Authenticated copy of the approvals and the certificate of commencement from the competent authority, if applicable.

·         Approved design, construction design and specifications of the proposed project or phase thereof and of the entire project as approved by the Component Authority.

·         Plan of construction work to be carried out in the proposed project and the proposed facilities to be provided, including fire-fighting facilities, drinking water facilities, emergency rescue services, use of renewable energy.

·         Location descriptions of the project, including a simple demarcation of the land allocated to the project along with its borders, including the latitude and longitude of the end points of the project.

·         Performa of the allocation document, the sale agreement and the conveyance act agreed to be signed with the allocated parties.

·         Amount, size and carpet area of the apartments for sale in the project along with the private balcony or veranda area and the exclusive open terrace area with the apartment, if applicable.

·         Number, location and size of the garage for sale in the project

·         Names and addresses of the real estate brokers for the proposed project, if any.

·         Names and addresses of designers, architects, structural engineers and other individuals associated with the construction of the proposed project.

·         A declaration, accompanied by an affidavit, to be signed by the promoter or by any individual approved by the promoter, stating that:

·         The Promoter shall have legal title to the land proposed for creation, along with legally valid documentation authenticating that title, in the event that the land is owned by another individual.

·         Land shall be free from all encumbrances or encumbrances on the land, including any ownership, title, interest or name of any person in or over the property.

·         Timeframe during which the promoter aims to complete the project or process, as the case may be.

·         Promoter shall take all outstanding approvals on time from the appropriate authorities.

·         Furnish additional documents as needed.

·         Seventy per cent of the allocated real estate project sums are deposited in a separate account to be held in a scheduled bank to cover the cost of land and building expenses, which are only used for that purpose.

The applicant shall deduct the sums from the separate account to cover the expense of the project, in proportion to the percentage of completion of the project after it has been approved by the builder, the architect and the chartered accountant, in effect, that the withdrawal is in proportion to the percentage of completion of the project.

The promoter shall also, within six months of the end of each financial year, be audited by a chartered accountant in practice and shall produce a statement of accounting duly certified and signed by that chartered accountant.

Grant for Registration

Registration of real estate projects is discussed in Section 5 of RERA. Within a period of thirty days [of what], the Authority shall grant registration subject to the provisions of this Act and shall provide the Applicant with the registration number, including the login I d and the password, for access to the Authority's website and for the establishment of its website and for the details of the proposed project.

The Authority can also refuse the application with reasons to be communicated in writing [to whom] if the application does not conform the the procedure under the Actunless the applicant has been given the opportunity to be heard on the matter.

If the Authority refuses the application, the Project shall be deemed to have been registered and, within seven days of the expiry of the said date, the Authority shall, within thirty days, provide the promoter with the registration number, the login Id and the password for access to the website of the Authority and the website of the Authority and fill in the d page.

Validity of  Registration  of  RERA.<

The month of March 2016 saw a new sunrise in the Real Estate sector in the form of Real Estate (Regulation and Development) Act, 2016, creating the Real Estate Regulatory Authority and the Real Estate Appeals Tribunal to give impetus to the interests of consumers and henceforth to the regulation of the real estate sector, which makes a significant contribution to job creation and to the GDP of our business. RERA has brought openness to the sector, improved it and brought home a certain degree of professionalism.

RERA requires each developer to ensure transparency when communicating with customers.

The Act describes ‘Promoter' as ‘Owner, ‘Developer’ 'Development Authority' or ‘Holder of the Power of Attorney’ from the Land-Lord of the Construction / Development Site: 

• Person who builds or starts the construction of an individual building or a building consisting of apartments or transforms the current structure into apartments for sale on the open market.
• An individual who develops land into a project consisting of plots that may or may not include any buildings, to be sold in whole or in part.
• Public body or development authority in respect of allotments of buildings or apartments constructed by them or plots of land either owned by them or made available to them by the Government for the purpose of sale.
• Apex State level and primary cooperative housing finance society that builds apartments or buildings for its members or designated individuals.
• Person acting as builder, colonizer, contractor, investor, estate investor or by some other name or claim to be the holder of the power of attorney from the owner of the property on which the house or apartment is being built or the plot is being created for sale.
• Any other person who builds a house or apartment to be sold to the general public.

For the purposes of RERA, where the developer / constructor is different from the seller of the land, both shall be considered promoters and are jointly liable under this Act.

‘Real Estate Project' is defined as the construction of a building or a building consisting of apartments, or the conversion of an existing building or part of it into apartments, or the construction of land into plots or apartments, for the purpose of selling all or some of the said apartments or plots or buildings, and includes common areas, development works, all improvements and structures.

In addition, the Act requires compulsory "Registration" with RERA of Real Estate Projects within the limits of the Promoters ' Planning Areas with the State Real Estate Regulatory Authority under which the Promoter is prohibited from advertising, promoting, booking, selling or offering for sale, or from inviting anyone to purchase any part or portion of a real estate project.

In addition, Real Estate Agents are obligated to register before they can facilitate the sale / purchase of a real estate project or any part thereof.

RERA is equally important to commercial projects as it is to residential ones.

However, the Act referred to in Section 3 provides for some exceptions in the field of real estate projects which are excluded from registration:

·         The land proposed for development does not exceed 500 square meters or the number of apartments does not exceed 8 (eight) in number;

·         In cases where the Completion Certificate' for the project was given to the proponents prior to the start of the RERA; 

·         Work is limited to refurbishment, repair or restoration and does not cover the promotion, advertisement, sale or reassignment of any apartment, plot or house.

Section 4 of the RERA provides for registration of real estate projects, where each Promoter is required to apply for registration along with various documents listed below :-

·         Brief details of the enterprise including name, registered address, enterprise type and particulars of registration of such enterprise along with promoter’s names and photographs.

·         Brief details of the projects undertaken by the sponsor in the last five years, whether completed or not, including the present status of ongoing projects, delays in execution, details of pending lawsuits, land type and any unpaid payments.

·         Authenticated copy of the approvals and the certificate of commencement from the competent authority, if applicable.

·         Approved design, construction design and specifications of the proposed project or phase thereof and of the entire project as approved by the Component Authority.

·         Plan of construction work to be carried out in the proposed project and the proposed facilities to be provided, including fire-fighting facilities, drinking water facilities, emergency rescue services, use of renewable energy.

·         Location descriptions of the project, including a simple demarcation of the land allocated to the project along with its borders, including the latitude and longitude of the end points of the project.

·         Performa of the allocation document, the sale agreement and the conveyance act agreed to be signed with the allocated parties.

·         Amount, size and carpet area of the apartments for sale in the project along with the private balcony or veranda area and the exclusive open terrace area with the apartment, if applicable.

·         Number, location and size of the garage for sale in the project

·         Names and addresses of the real estate brokers for the proposed project, if any.

·         Names and addresses of designers, architects, structural engineers and other individuals associated with the construction of the proposed project.

·         A declaration, accompanied by an affidavit, to be signed by the promoter or by any individual approved by the promoter, stating that:

·         The Promoter shall have legal title to the land proposed for creation, along with legally valid documentation authenticating that title, in the event that the land is owned by another individual.

·         Land shall be free from all encumbrances or encumbrances on the land, including any ownership, title, interest or name of any person in or over the property.

·         Timeframe during which the promoter aims to complete the project or process, as the case may be.

·         Promoter shall take all outstanding approvals on time from the appropriate authorities.

·         Furnish additional documents as needed.

·         Seventy per cent of the allocated real estate project sums are deposited in a separate account to be held in a scheduled bank to cover the cost of land and building expenses, which are only used for that purpose.

The applicant shall deduct the sums from the separate account to cover the expense of the project, in proportion to the percentage of completion of the project after it has been approved by the builder, the architect and the chartered accountant, in effect, that the withdrawal is in proportion to the percentage of completion of the project.

The promoter shall also, within six months of the end of each financial year, be audited by a chartered accountant in practice and shall produce a statement of accounting duly certified and signed by that chartered accountant.

Grant for Registration

Registration of real estate projects is discussed in Section 5 of RERA. Within a period of thirty days [of what], the Authority shall grant registration subject to the provisions of this Act and shall provide the Applicant with the registration number, including the login I d and the password, for access to the Authority's website and for the establishment of its website and for the details of the proposed project.

The Authority can also refuse the application with reasons to be communicated in writing [to whom] if the application does not conform the the procedure under the Actunless the applicant has been given the opportunity to be heard on the matter.

If the Authority refuses the application, the Project shall be deemed to have been registered and, within seven days of the expiry of the said date, the Authority shall, within thirty days, provide the promoter with the registration number, the login Id and the password for access to the website of the Authority and the website of the Authority and fill in the d page.

Validity of  Registration  of  RERA.

The registration accordingly accepted shall be valid for the time specified by the Promoter for the completion of the real estate project or for the process indicated in the affidavit with the application form.

The registration granted can be extended by the Authority upon receipt of an application from the Promoter in the event that' Force Majeure' has a significant effect on the project.

The authority can also extend the registration for a maximum duration of one year if the circumstances so justify.

It is important to notice the judgment of the Supreme Court in Bikram Chatterji vs. Union of India in 2019, where it was held that, as RERA envisages the timely completion of projects once the registration under section 5 and the extension under section 6 have been granted, it is only in the event of force majeure and no default on the part of the petitioner that the registration can be extended overall for a term. Force majeure means war, flood, drought, storm, cyclone, earthquake or some other calamity caused by nature.

Cancellation of Registration

Registration granted may also be revoked by the Authority upon receipt of a complaint suo-moto or on the advice of the Competent Authority after giving a 30-day written notice to the Promoter of such a real estate project on the basis of the grounds for the proposed revocation, after having considered any reason identified by the Promoter and having been satisfied that:-

• The promoter has failed to perform anything necessary under RERA
• The promoter has violated any of the terms and conditions of the approval issued by the Authority.
• The promoter is engaged in some unfair practice or irregularities (for example, false representation of services is of a specific quality or grade, or that the promoter has the approval or affiliation that the promoter does not have, and makes inaccurate or misleading representations about the services, along with the publishing of some advertising or prospectus, whether in a newspaper or otherwise.)
• The promoter indulges in some dishonest activity.

The Authority can, in the alternative of canceling the registration, permit it to remain in force subject to such additional terms and conditions as it considers necessary to be imposed in the interest of the authorized parties which are binding on the promoter.

Consequences of cancellation of Registration

Upon the cancellation of the registration, 

• The Promoter shall be barred from accessing its website in relation to the project and the Revocation of the Promoter's Project Registration shall be reported to the other Real Estate Regulatory Authority in other States and Union Territories and the name and image shall be shown as normal on the website.
• The Authority shall order the scheduled bank to hold the project back, freeze the account and then take the required further action, including the consequent de-freezing of the said account, to facilitate the remaining development work.

The Authority may also provide directives as it considers appropriate to protect the interest of designated individuals or in the public interest.

The Authority shall also encourage the remaining development work to be carried out by consultation with the appropriate Government in order to take such action as it may find necessary, which may include the execution of the remaining development work by the competent authority or the association of allocated persons or in any other manner as may be decided by the Authority and only after the expiry of the duration.

Penalties for Non-Registration

Where a real estate project is not registered, Section 59 of RERA comes into play, which imposes a penalty of up to 10% of the estimated project cost and if the default is continuous, an additional fine of up to 10% of the estimated project cost or imprisonment of up to three years or both may be imposed.

RERA has given comprehensive powers to the Authority in cases of non-compliance on the part of the Promoter containing a penalty clause, as well as in cases where the Authority may find it necessary to protect the interests of consumers.  Any individual aggrieved by a proponent of violation of the RERA provisions may also file a complaint with the Authority.

In conclusion, it can safely be said that the registration of projects with RERA has brought a great deal of value to customers. In particular, as it decreases the risk of insolvency / bankruptcy of the builder and offers a timeline for the execution and prompt delivery of real estate projects, structured agreements and accountability on the use of money by the developer. The proponents, on the other hand, have also earned the RERA's stability and accountability in negotiating, improving consumer trust and a controlled climate. RERA has improved productivity and strengthened the real estate sector with higher investment and an improvement in the coordinated financing of real estate projects.

INTRODUCTION

According to our present system of juvenile justice, when a minor commits a crime that is not necessarily committed by them alone, it is assumed that it is because of the spirit of adventure that is in every minor, or because of his own ignorance, or because of his lack of discipline. Yet they fail to realize that in the future, mankind has its stars, and the future is too vital to be wasted under the weight of youthful stupidity and naive superstition.

The word' Juvenile' was coined in the late 1800s when juvenile crime and abuse were redefined as distinct and separate from adult crimes, and new social intervention structures were created to handle children with problems. Young offenders who used to be treated as just young ‘criminals' were turned into' juveniles.' Nevertheless, the word ‘juvenile' reflects a number of different behaviors and means different things at various times and locations.

WHO IS A JUVENILE?

A juvenile is a child who has not reached eighteen years of age. The term has a legal significance to it. According to the Juvenile Justice (Care and Protection) Act, 2000, a juvenile is not to be considered as an adult even though he / she are involved in any criminal activity for the purposes of conviction and punishment in court.

REASON BEHIND JUVENILE CRIMES IN INDIA

There are many factors which contribute to the child's criminal nature. Most of these young people come from discording or abusive homes. Peer pressure, environment also has an impact on a child's growth. Poverty is also one of the major causes of juvenile delinquency. While education plays an significant role in molding future people, the framework somehow lacks the capacity to keep non-bookish and non-academic individuals' interest and thus leads to many cases of juvenile delinquency. Delinquents are typically the ones who take studies as a burden and resort to crime on being rebuked. Crime committed by minors under the statutory age is referred to as juvenile criminal offence. According to the statistics reported by the National Crime Records Bureau (NCRB), juvenile offenders between the ages of 16 and 18 accounted for more than 60 per cent of the crimes recorded in India in 2013. The number of juveniles in dispute with the law has reportedly risen in recent years by a large amount. This also included the modesty of outraged women.

MEASURES

There are some steps that can help in changing these children:

1.      Instill in them a sense of security and offer them the love and affection they might have been deprived of.

2.      Parents should be encouraged to identify early signs of maladjustment, so that any inclination towards delinquency can be broken at the roots.

3.      At the very beginning, a sense of moral and social values should be instilled in them.

4.      Upon identification of a delinquent behavior, one must remember to condemn the behavior and not the offender.

PRESENT LEGISLATION

The Juvenile Justice (Care and Protection) Act, 2000 (hereinafter called “The Act”) stipulates that juveniles in conflict with the law or juvenile offenders must be detained in an' Observation Home' while children in need of care and security must be detained in a'‘Children's Home' during proceedings pending before the competent authority.

A juvenile will only be detained for a maximum duration of 3 years, irrespective of the severity of the crime that he has committed, and he will be remanded to' Special Home.' The Juvenile Justice (Care and Protection) Act, 2000 provides protection for the offender who is under the age of 18 Years at the time of the commission of the alleged crime from prosecution in Criminal Court or other penalty under Criminal Law pursuant to section 17 of the Act.

This new Act was intended to rehabilitate the child and assimilate him / her in mainstream society. The reasoning is that due to his / her tender age and lack of maturity a child still has the potential of being transformed and it is the State's duty to protect and change the child.

Taking into account the rise in juvenile crimes, the Union Cabinet has approved an amendment to the Juvenile Justice (Care and Protection of Children) Act, 2000, to consider minors over 16 years of age as adults if charged with serious crimes such as rape. However, such delinquent youth are not to be granted death or life imprisonment.

PROPOSED AMENDMENT IN JUVENILE JUSTICE ACT 2000

1.      The proposed law would amend the current Juvenile Act.

2.      It specifically described and categorized crimes as minor, serious and heinous.

3.      It was recognized that the increasing number of serious offenses committed by juveniles in the 16-18-year age range.

4.      Therefore, in consideration of the victims ' rights as well as the rights of juveniles, it is recommended that these heinous crimes should be treated in a specific way.

5.      Therefore, it was proposed that if a person in the age group of 16 to 18 years commits a heinous crime, the Juvenile Justice Board will first determine whether the crime was committed by that person as a' child' or as an' adult.'

6.      The Juvenile Justice Board will include psychologists and social professionals in it to ensure that juvenile rights are adequately secured if the crime is committed.

CONCLUSION

It is reasonable to assume the juveniles committing crimes such as rape, since the best known example is the case of Nirbhaya Delhi Rape, in which the juvenile is sent to correctional home for just 3 years. This amendment in the JJ Act also provides the other offenders a means to commit their heinous crimes which they can now achieve through such juveniles since they are safe that the juveniles will be free after 3 years and then again can join their gang as a mature criminal.

Purpose of Section 144, CrPC, 1973

Section 144 CrPC empowers the District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrateby the State Government to issue an order in urgent cases of nuisance or anticipated danger.

An order may be given to a single individual or to the general public, in a specific place or location, to refrain them from any act or in respect of certain property in his possession or under his management.

The order can be passed only if the Magistrate believes that there is an appropriate ground for proceeding under this section and that immediate restriction or timely guidance is likely to prevent the following:

·        Obstruction, discomfort or harm to any lawfully working person

·        Risk to human life, health and wellbeing

·        Disturbance of the peace of the country, or protests.

Section 144 of the CrPC is one of the processes by which the State can ensure public peace. This part of it deals with the preservation of public order and peace of mind. The structure of the law indicates that this power can only be exercised in immediate cases of disturbance or potential danger.

The Section 144 of the Cr PC. allows the State to take proactive action to resolve potential threats to public security. It allows the Magistrate to issue a mandatory order requiring certain acts to be performed, or a prohibitory order which prohibits people from doing certain acts. However, it also provides various protections to ensure that the power is not abused, i.e. reviewing before exercising power and setting out the relevant details for the exercise of that power.

Section 144 CrPC can be used even when the danger is apprehended

One of the points put forward on behalf of the petitioners was that these orders under Section 144 CrPC passed in anticipation or fear could not be upheld in the eyes of the law. The Bench denied that in Babulal Parate v. State of Maharashtra, AIR 1961 S.C. 884, it was held that the powers of Section 144 are not only exercisable when there is a risk, but also where there is apprehension of risk. The Supreme Court, however, justified it by specifying that the danger must be in the form of an emergency and in order to avoid obstruction and inconvenience or injury to any person lawfully employed.

Power must be used responsibly

Such an order may be passed either against a single individual or against the general public, and the orders passed under Section 144 of the CrPC have serious implications on the fundamental rights of the general public. The most burdensome obligation on the Empowered Officer by the legislature is that the interpretation of a danger to public peace and tranquillity should be actual and not imaginary.

The bench in Babulal Parate v. State of Maharashtra (Supra) held:

“Such a power, if used in a casual and cavalier manner, would result in severe illegality. This power should be used responsibly, only as a measure to preserve law and order”.

Repetitive orders under Section 144 of CrPC may amount to abuse of power

In the Kashmir Lock Down case, the Supreme Court noted that the power under Section 144 could not be used as a device to prohibit the legitimate expression of opinion, grievance or exercise of any democratic rights.

The Supreme Court held that Section 144 CrPC provisions would only be applicable in an emergency situation and for the purpose of preventing obstruction and irritation or injury to any lawfully employed person.

The Bench comprising Justice N. V. Ramana, Justice R. Subhash Reddy & Justice B. R. Gavai, while outlining the principles of exercising power laid down in Section 144 CrPC in entitled Ms. Anuradha Bhasin Vs Union of India &Ors, Writ Petition (Civil) 1031/2019 held as follows:

·        Power under Section 144, CrPC, which is both remedial and preventive, can be exercised not only where there is present risk, but also where there is apprehension of risk. Nevertheless, the danger envisaged should be in the form of an emergency and in order to avoid interference and inconvenience or damage to any person lawfully employed.

·        Power referred in Section 144, CrPC can’t be used to censor the free expression of opinion, grievance or exercise of any democratic rights.

·        The order passed under Section 144 of the CrPC will set out the material facts in order to enable judicial review. Power should be exercised in a bona fide and logical manner, and the same should be achieved by relying on the material facts. Hence, allowing judicial review for the above order.

·        When exercising powers under Section 144 of the CrPC, Magistrate is obligated to balance rights and restrictions on the basis of the principles of responsiveness and to apply the least intrusive measures.

·        Repeated orders under Section 144 CrPC This would be an abuse of power.

Constitutional Validity

Justice Hidayutallah claimed in the well-known case of Madhu Limaye v. S.D.M. Monghyr,1971 AIR 2486, 1971 SCR (2) 711 that Section 144 of the Criminal Procedure Code is not unconstitutional if it is correctly enforced and that there is no excuse to be violated. And the provisions of the Code, properly interpreted, do not surpass the limits laid down in the Constitution of India, and this is precisely why the Court held that Section 144 was held valid and constitutional.