Orders of the Human Rights Commissions

 

Orders of the Human Rights Commissions

 

There are two major issues relating to orders passed by National Human Rights Commission which are faced by litigants:

1. Since there is no appeal against the orders of the Human Rights Commissions, what is the remedy?
2. Are the orders of the Human Rights Commissions simply advisory or binding.

Brief Facts

An undertrial prisoner, Omendra (son of Brahm Dutt) died on 21 May 2012 while in the custody of the District Jail, Muzaffarnagar. The prisoner was lodged in the district jail on 9 September 2011. He was under treatment of the jail hospital from 15 May 2012. On 21 May 2012, his condition became serious and he was referred to the district hospital where he was declared “brought dead”.

During the course of enquiry under Section 17 of the Protection of Human Rights Act, 1993, on 2 September 2014, the National Human Rights Commission issued a show cause notice to the Chief Secretary of the UP State Government. In response to the notice, the Superintendent of the District Jail, Muzaffarnagar submitted a reply on 10 October 2014.
After examining the facts in detail, the Commission issued an order on 4 April 2015 holding that a clear case of violation of Human Rights was made out in the death of the deceased under-trial prisoner Omendra which deserved to be compensated. Keeping in view the facts and circumstances of the case, the Commission recommended to the Govt. of Uttar Pradesh through its Chief Secretary to pay a compensation of Rs.2,00,000/- (Rupees Two Lakhs only) to the next-of-kin of the deceased prisoner Omendra. The Chief Secretary, Govt. of Uttar Pradesh, was directed to submit compliance report along with proof of payment within 8 weeks.

(The National Human Rights Commission has discussed the facts in detail in its order.)

 

Writ filed by the State Government

 

The State Government challenged the order dated 28 April 2015, communicating the decision to award compensation and submit compliance report by filing a Writ in the Allahabad High Court.

The State Government claimed that that the power of the Commission under Section 18 (a) (i) of the Act is to “recommend” to the concerned Government or authority to make payment of compensation or damages to the complainant or to the victim or the members of his family. Hence, it has submitted that the power of the Commission being recommendatory in nature, the directive to furnish proof of compliance is contrary to law and is liable to be set aside.

 

Decision of the Allahabad High Court

 

The Allahabad High Court has held that :

First, the enactment of the Protection of Human Rights Act, 1993 is an intrinsic part of the enforcement of the fundamental right to life and personal liberty under Article 21 of the Constitution. Equally, by enacting the legislation, Parliament has evinced an intention to enact legislation in compliance with India’s obligations under the Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of the United Nations.

Secondly, the Commission is a high powered body which has been vested with exhaustive powers to order an investigation, conduct enquiries ,etc.
The Allahabad High Court has held that an authority or a government which is aggrieved by the order of the Commission is entitled to challenge the order. Since no appeal is provided by the Act against an order of the Commission, the power of judicial review is available when an order of the Commission is questioned.
The Allahabad High Court has held that having regard to the importance of the rule of law which is but a manifestation of the guarantee of fair treatment under Article 14 and of the basic principles of equality, it would not be possible to accept the construction that the State Government can ignore the recommendations of the Commission under Section 18 at its discretion or in its wisdom. That the Commission is not merely a body which is to render opinions which will have no sanctity or efficacy in enforcement, cannot be accepted. This is evident from the provisions of clause (b) of Section 18 under which the Commission is entitled to approach the Supreme Court or the High Court for such directions, orders or writs as the Court may deem fit and necessary.

 

The High Court has held that Governed as we are by the rule of law and by the fundamental norms of the protection of life and liberty and human dignity under a constitutional order, it will not be open to the State Government to disregard the view of the Commission. The Commission has directed the State Government to report compliance. The State Government is at liberty to challenge the order of the Commission on merits since no appeal is provided by the Act. But it cannot in the absence of the order being set aside, modified or reviewed disregard the order at its own discretion. While a challenge to the order of the Commission is available in exercise of the power of judicial review, the State Government subject to this right, is duty bound to comply with the order. Otherwise the purpose of enacting the legislation would be defeated.
The Allahabad High Court has held  we find no substance in the petition. The writ petition is, accordingly, dismissed.



Result

The aggrieved party can file a writ against the order of the National Human Rights Commission, but the Commission’s order are binding and can be ignored.

 

Allahabad High Court

Hon’ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice Hon’ble Yashwant Varma,J. (Per : Dr D Y Chandrachud, CJ)

WRIT – C No. – 15570 of 2016    Order Date :- 8.4.2016

Petitioner :- State Of U.P. And 2 Others
Respondent :- N.H.R.C. And 3 Others
Counsel for Petitioner :- Piyush Shukla

Link to the full decision:

http://www.livelaw.in/human-rights-commission-orders-not-merely-recommendatory-state-duty-bound-comply-allahabad-hc/

Consumer Protection Act – Reply to complaint should be filed within 45 days, rules SC


Consumer Protection Act – Reply to complaint should be filed within 45 days, rules SC

The Consumer Protection Act (CPA) stipulates that the party against whom a complaint is lodged must file its reply within a particular time frame – 30 days which can be extended by up to 15 days.
But this stipulation has often been ignored.
The Consumer Forums have been granting extension of time repeatedly “in the interest of justice”.

(Earlier there were some conflicting judgments on the interpretation of this provision as to whether this period was mandatory, or merely procedural and directory.)

In Civil Appeal Nos. 10941 10942 of 2013 New India Assurance Co. Ltd. v/s Hilli Multipurpose Cold Storage Pvt. Ltd. the Supreme Court has resolved the conflicting interpretations.

In this decision dated December 4, 2015, a specially constituted three-judge bench of the Supreme Court has now authoritatively laid down the law that the time stipulated under the CPA must be strictly adhered to.

It observed that consumer fora are bound to follow the procedure prescribed under the CPA. The law provides that the version in reply to the complaint has to be filed within a period of 30 days or such extended period not exceeding 15 days, as may be granted. This provision is for having a speedy trial. If this period is not adhered to, it will defeat the legislative mandate to dispose of consumer cases within three months, or five months, where laboratory testing of goods is required.

Accordingly, the court concluded that the legislative mandate to file the version within a maximum period of 45 days must be strictly adhered to.
In other words, the Consumer Forums cannot grant any time beyond 45 days.

Conclusion

This landmark ruling will ensure that opposite parties do not delay filing their version to deliberately delay the proceedings in order to harass the consumer.

 

Link to the Full Decision:

http://supremecourtofindia.nic.in/jonew/judis/43159.pdf

 

22.11.17   Appeal has been filed against the above decision which is pending:

http://sci.gov.in/jonew/bosir/orderpdf/2859262.pdf

Maharashtra Real Estate Regulatory Authority (MahaRERA)

 

Maharashtra Real Estate Regulatory Authority (Maha RERA)

RERA has effectively started functioning in Maharashtra.

Maharashtra Government had established Maha RERA on March 8, 2017 for regulation and promotion of real estate sector in the state, with its headquarters in Mumbai.

The RERA act, lays rules and regulation for the real estate sector. It is aimed to bring in much needed transparency, efficiency, and professionalism that will further strengthen home buyers’ confidence.
 

Gautam Chatterjee appointed first Chairman of MahaRERA 

RERA-Real Estate Regulatory Authority came into effect from May 1, 2017.

Gautam Chaterjee, an IAS Officer, has been appointed the first Chairman of the Maharashtra Real Estate Regulatory Authority (Maha RERA).


First Case to be decided under RERA

In its  first case,  taken up suo moto, the RERA authority imposed penalty of Rs. 1.2 lakhs on Sai real estate consultant firm

In its first decision in a case taken up suo moto,  the Real Estate Regulatory Authority (RERA) norms that have given a big boost to home buyers, a Chembur-based real estate consultant firm has been asked to pay Rs 1.2 lakh as fine for a misleading advertisement of an ongoing construction project.

Penalised under Maharashtra Real Estate Regulatory Authority (MahaRERA) act, Sai Estate Consultant became the first firm to be fined under the act. The Authority’s order, issued on Monday,  stated that the consultant was guilty of advertising a project which wasn’t registered with it at the time of advertising.

Under the new rules, advertising for sale of flats in projects that are not registered with the Authority is considered as a violation under the rules of the regulatory body. The firm, which advertised a project of Haware builders in Thane, has also been asked to withdraw the advertisement and restrain from promoting it in absence of the Authority’s registration.

In addition to the fine, the firm has also been asked to tender an apology. The action comes as result of a complaint, filed in this regard from consumer activist outfit, the Mumbai Grahak Panchayat. “We welcome this bold order, and hope builders and real estate agents learn lessons from it,” the activist outfit was quoted as saying by Indian Express.

The entire decision is available at the following site:

https://maharera.mahaonline.gov.in/Site/Upload/pdf/Legal-Advisor-MahaRERA-Vs-Sai-Estate-Consultant-Chembur-Pvt-Ltd-Suo-Motu-Case-No-1-of-2017-dated-5-06-2017.pdf


Important Links

The MAHARERA site states that even if you have filed a complaint in the Consumer Forum, you can with draw the same, and file the Complaint or application in RERA.

https://maharerait.mahaonline.gov.in/PDF/FAQMergedPDF.pdf

  1. If the buyer wants to file a complaint in Consumer Court, is there any bar under the Act?

Ans: No. As per section 79 of the Act, civil courts are barred from entertaining disputes (suits or proceedings) in respect of matters which Real Estate Regulatory Authority or the adjudicating officer or the Appellate Tribunal is empowered under the Act to determine. However, the consumer forums (National, State or District) have not been barred from the ambit of the Act. Section 71 proviso permits the complainant to withdraw his complaint as regards matters under section 12, 14, 18 and section 19, from the consumer forum and file it with the adjudicating officer appointed under the Act.

Web Site of MahaRERA

Link to the Web site of RERA where you can download the Act, Rules and  other documents.

https://maharera.mahaonline.gov.in/Home/Index

 

 

MOFA is applicable to all old projects


MOFA is applicable to all old projects

Ahmed Ali| TNN | Feb 5, 2017, 06.30 AM IST


Some Advocates and Police Officers try to avoid filing FIRs under MPFA on the pretext that MOFA has been replaced by RERA. This is not a fact.
As today’s news item shows, MOFA is still alive and applicable.

 

MUMBAI: There is more trouble in the offing for the Jain brothers of Kamla Landmarc, a construction company, who have been arrested for duping investors. The EOW of Mumbai police has written to the ED about possible money laundering involving proceeds from the fraud that they suspect has touched Rs 200 crore.

Jitendra Jain, his brother Jinendra and brother-in-law Ketan Shah were arrested last November for duping investors by accepting bookings but not handing over flats or godowns, and forging property documents like commencement certificate and other development documents from BMC. So far, 16 FIRs have been registered against them. “As our investigation is on, more and more complaints are pouring in. Till now, there are around 150 victims who have been duped. We expect around six-seven more offences to be registered,” said a police officer.


The trio will find it difficult to obtain bail, claimed cops, because the police have invoked stringent sections of the 
Maharashtra Ownership of Flats Act (MOFA) in almost all the cases. Now, if ED begins a probe into money laundering, their woes will continue.


The police have frozen 200 bank accounts with Rs 8 crore linked to the builder brothers, FDs worth Rs 6 crore in various banks, 23 properties across the city and seven high-end cars.


Giving examples of the fraud, cops said the Jains accepted bookings for two industrial godowns at Hindustan Naka in Kandivli from two garment traders, but did not give them possession even after the deadline. During inquiries, it transpired that the builder brothers had sold 448 galas in the building, but only 107 agreements were registered, and only 96 were issued allotment letters. It also emerged that BMC had given permission for five floors, but the builders added two more. The BMC has served a demolition notice. In all, 200 were duped of Rs 21 crore.

 

In another case, the builder accepted bookings from 25 buyers and constructed a 17-floor highrise — Shimmer society in Santacruz (west) — though he had CC permission for only five floors. The buyers approached the Bombay high court, which directed the police to book the Jains. “In most of these offences, the modus operandi is almost same,” said police inspector Rajendra Pardeshi, who is heading the probe team that includes police officers Vishal Padir and Vikrant Shirshaat.

National Green Tribunal decides on municipal issues such as parking spaces, recreation grounds and fire safety within the scope of environment jurisdiction


By this judgment, for the first time, the National Green Tribunal brought municipal issues such as parking spaces, recreation grounds and fire safety within the scope of environment jurisdiction.”

 

Judgement of the National Green Tribunal (Principal Bench, New Delhi) in the matter of Sunil Kumar Chugh & Ors. Vs. Secretary, Environment Department, Govt. of Maharashtra & amp; Ors. dated 03/09/2015

In this landmark order The National Green Tribunal, directed a developer to remit Rs 3 crore towards the environmental relief fund and stopped the construction and sale of a slum rehabilitation project at Antop Hill, Mumbai till the amount was paid and plans amended to include additional parking space.

The order was in an appeal filed by Sunil Chugh against environmental clearances granted to Priyali Builders last March for construction on a 6,500- sq m plot in Sion-Koliwada despite violations to the town planning and environmental laws.

After hearing advocate Aditya Pratap for Chugh, Vikas Malhotra for the environment department, Anand Yagnik for the Slum Rehabilitation Authority (SRA) as well as others, the tribunal panel, headed by former Supreme Court judge Swatanter Kumar, held that the builder needs to correct certain lapses in the project.

The panel directed the builder to pay Rs 3 crore to the SRA within a fortnight and Rs 32 lakh towards deficient recreational area to the Maharashtra Pollution Control Board for incurring expenses on environmental and ecological rehabilitation. The tribunal said that the developer must modify the building plans and get them approved for additional parking space in the sale building from the seventh storey upward to make parking space available for both the rehabilitation building and the sale building. It also imposed a Rs 1 lakh cost on the builder.

The land, which was encroached by slums, was reserved for a municipal office and road when the builder submitted a proposal to the SRA to rehabilitate 324 tenements in 1997. Five years later, the builder got the first letter of intent for 14,600 sq m built-up area and was later granted permission for more construction, which the tribunal was told exceeded 20,000 sq m attracting a prior environment clearance.

The builder said the SRA had permitted reduction in the amenity area to 8% and allowed the recreational area above the podium level. But the tribunal observed that the SC held that “right to clean and healthy environment is within the ambit of Article 21 (right to life) and that open land around a building can only be at the ground level, not podium”.

Observing lack of paucity of parking space, the tribunal directed that “three floors shall be made available from seventh floor onwards from the area available for construction of flats…to ensure adequate parking spaces…and ensure that vehicles do not spill out on the streets resulting in congestion and prevent adverse impacts on the environment”.

The judgment written by judicial member U D Salvi said the term built-up area includes both FSI and non-FSI areas. In this case, the built-up area was 30,000 sq m, which included over 12,000 sq m of non-FSI area. This will help end the practice of builders trying to separate the two to evade environment clearance, said a lawyer.

 

 Link to the full decision:

http://www.indiaenvironmentportal.org.in/files/building%20environment%20clearance%20NGT%20Mumbai.pdf

Representative Complaint on behalf of a large number of Consumers

 

In their order dt. 7 October 2016, The NCDRC has passed a detailed order  interpreting Section 12(1)(C) of the Consumer Protection Act, allowing home buyers who have invested in a project to be automatically made party to any case filed against a builder.

Referred to as a representative lawsuit, this can only be done if their interest, complaint or grievance is common to that of the person who has filed the complaint. The order applies to all new cases as well as old ones.

 

                    NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
                                                                     NEW DELHI
 

 

 
                                             FIRST APPEAL NO. 166 OF 2016
           
(Against the Order dated 27/01/2016 in Complaint No. 586/2015 of the State Commission Maharastra)          

 

BEFORE:  
  HON’BLE MR. JUSTICE D.K. JAIN,PRESIDENT
  HON’BLE MR. JUSTICE V.K. JAIN,MEMBER
  HON’BLE DR. B.C. GUPTA,MEMBER

 

For the Appellant :  
Mr. S.K. Sharma, Advocate
Dr. Abhishek Atrey, Advocate

 

For the Respondent :
Mr. Nikhil Jain, Advocate Mr. Anshuman Nandi, Advocate


Dated : 07 Oct 2016

 ORDER
JUSTICE V.K. JAIN, MEMBER
         

 

 Link to the full order:

 http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0%2F0%2FFA%2F504%2F2016&dtofhearing=2016-10-07

Juvenile Justice Act –

 

Supreme Court – last minute effort to stop the release the juvenile offender

In what looks likes a scene drawn from the Indian Cinema, on the late night of Saturday 20th December 2015, Swati Maliwal, Chief of the Delhi Commission for Women (DCW), moved the Supreme Court, seeking the court’s intervention against the release of the juvenile convict, the lone juvenile offender among the attackers in the December 16, 2012 gang-rape case.

The juvenile offender, who had just turned 20 was due to be released on Sunday 21 December 2015 after spending three years in a correctional home in Delhi under the Juvenile Justice Act. The Supreme Court agreed to hear the matter on Monday 22nd December 2015.

On Monday 22nd December 2015, the Supreme Court did hear the matter. A bench of Justices Adarsh K Goel and Uday U Lalit refused to order any further detention. They observed: 

“We also share your concerns but we have to go by the law as it stands today. Any further detention would need a legislative sanction. The law is very clear that a juvenile cannot be detained beyond three years… so what kind of interim orders can be passed by us? ”

The parents of the victim blamed every one for not passing the Amendment to the Juvenile Justice Act which they felt would have prevented the release of the juvenile offender. Surprisingly, no one told them that even an amendment in a criminal legislation can not be done retrospectively.

Did not Swati Maliwal, Chief of the Delhi Commission for Women (DCW) know this basic principal of criminal jurisprudence? Why did she raise false hopes?


Proposed Amendment to the Juvenile Justice Act

Under the proposed new law, anyone charged with a “heinous crime” —for which the minimum punishment for an adult is seven years —who is aged between 16 years old and 18 years old can be tried as an adult.

But first, a juvenile justice board, consisting of a magistrate and two social workers, would have to assess the mental and physical capacity of the person to commit such an offence as well as that person’s ability to understand the consequences of the crime.

The board can ask for the advice of psychologists and other experts.

The decision to try a person as an adult would then need to be ratified by the Children’s Court, which would also draw up a plan for rehabilitation.

If found guilty, a child who is tried as an adult must then be “sent to a place of safety” until turning 21, when he or she would be transferred to jail.


United Nations Convention on the Rights of the Child

The Proposed amendment also contravenes the United Nations Convention on the Rights of the Child, which India has ratified. The convention says all people under the age of 18 must be treated equally. Then there are Commission to safe guard the interests of children too.


Amendment Bill passed in a hurry

The law which has gathered dust for so many years has been passed in a day without any real discussion.

 

Jurisdiction of Consumer Forum in case of online Transactions


The question of territorial jurisdiction in internet transactions is a tricky issue.

This issue came up before the Meghalaya State Consumer Commission. The grievance related to sale of Air Tickets by Air Deccan through the internet.

The State Commission made a detailed analysis of various provisions and decisions; and by its order dt. 7 December 2013, held that the Complainant could file the Complaint at the place where he entered into the transactions. The following are the details of the case:

State Meghalaya  Appeal No.
FA/7/2007
  M.D.Air Deccan
(Appellant)
  Shri Ram Gopal Agarwal
(Original Complainant)             Date of Order

07/12/2013


The State Commission observed as follows:

” With the widespread access to personal computers and the internet, e commerce has been growing at a phenomenal pace. Many service providers and retailers taking advantage of this are offering their wares to the general public through their web sites, enabling their customers to do business/shopping from the comfort of their homes and offices. With the growth of e commerce and commercial activity over the internet, it has become possible for business to be conducted across the globe without actual physical presence in every place. Widespread usage of plastic money (Credit and Debit Cards) has facilitated these operations in a big way. But at times the consumer gets a raw deal as internet dealings are done with unknown parties, operating from far off places.

“Thus, the challenge faced by parties to an online transaction is which forum should be used to adjudicate conflicts. This is particularly an issue when a buyer seeks redressal in his local jurisdiction on the basis that the sellers goods or services are made available to consumers in all parts of the country through the Suppliers / Service providers web presence.

“We are also of the equally firm view that the learned District Forum at Shillong had territorial jurisdiction over the Complaint in question for the reasons afore stated and we therefore unhesitatingly uphold the impugned order passed by the Forum below.”

This is a very important decision. I am giving the link to the decision.

http://164.100.72.12/ncdrcrep/judgement/300131223132046193dailyorder12013-11-16.html