November 2021

Noting that compensation or penalty to be paid by those indulging in illegal sand mining cannot be restricted to the value of illegally-mined minerals, a 3-judge bench of the Supreme Court has observed that the cost of restoration of environment as well as the cost of ecological services should be part of the same. A bench of Justices L Nageswara Rao, Sanjiv Khanna and BR Gavai further said that the “Polluter Pays” principle as interpreted by the Supreme Court meant that the absolute liability for harm to the environment extended not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. “Remediation of the damaged environment is part of the process of “Sustainable Development” and as such the polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology”, opined the bench. While hearing an SLP filed by the  Bajri Lease LoI Holders Welfare Society assailing certain provisions of the Rajasthan Minor Mineral Concession Rules, 2017, the Court had in February 2020, after taking note of the scale of the issue of illegal sand mining in the State of Rajasthan, directed the Central Empowered Committee (“CEC”) to submit a report on the problems relating to sand mining that are faced by traders, consumers, transporters, the State and other stakeholders and also on measures to stop illegal sand mining. In December 2020, the CEC submitted its report making certain recommendations. The State of Rajasthan then filed an Interlocutory Application requesting the Supreme Court to accept all the recommendations made by the CEC except recommendations ‘A’ and ‘J’. Recommendation ‘A’ relates to termination of Khatedari leases within 5 km of the river bank and restriction on the State Government to grant fresh Khatedari leases without the approval of this Court. Recommendation ‘J’ pertains to exemplary penalty of Rs.10 lakh per vehicle and Rs.5 lakh per cubic metre of sand seized for violation of the order passed by this Court on November 16, 2017 whereby it had restrained a total of 82 mining lease / quarry holders from carrying on mining of sand and bajri, unless a scientific replenishment study is completed and Environmental Clearance was granted by the Ministry of Environment, Forest and Climate Change (MoEFCC). The top court opined that unabated illegal mining has resulted in the emergence of sand mafia who have been conducting illegal mining in the manner of organized criminal activities and have been involved in brutal attacks against members of local communities, enforcement officials, reporters and social activists for objecting to unlawful sand excavation. It was further remarked that when this 82 mining lease / quarry holders were restrained from carrying on mining of sand and bajri unless a scientific replenishment study was completed and EC was issued by the MoEFCC, the State of Rajasthan ought not to have issued mining leases in favour of the Khatedars. With this view, the Court went on to approve the recommendation of the CEC that all Khatedari leases located within 5 km from the river bed and those leases where lease conditions had been violated had to be terminated forthwith and that Khatedari leases would be granted only with the permission of this Court. Referring to Section 21(5) of the Mines and Minerals (Development and Regulation) Act, 1957 , which empowers the State Government to recover the price of the illegally-mined mineral, in addition to recovery of rent, royalty or tax, the Court said that the penalty recommended by the CEC for illegal sand mining would be in addition to the penalty that can be imposed by the State Government in terms of Section 21(5) of the Act. “However, the basis for imposition of exemplary penalty of Rs. 10 lakh per vehicle and Rs. 5 lakh per cubic metre of sand has not been stated by the CEC in its report. The CEC is directed to follow the directions given by the NGT in respect of imposition of penalty / determining scale of compensation for illegal mining and the provisions of the 2020 Sand Mining Guidelines and determine the penalty / compensation afresh and submit a report to this Court within a period of eight weeks from today”, concluded the bench. The Court thus approved all recommendations made by the CEC except “Recommendation J” and disposed of the IA in such terms. Cause Title: Bajri Lease LoI Holders Welfare Society Throughs its President v State of Rajasthan & Ors Source: Lawbeat.in

A homebuyer cannot be forced by the builder to take possession of a flat that is not fully constructed and for which a completion certificate has not been issued. The National Consumer Disputes Redressal Commission in a ruling said doing so will amount to unfair trade practice by the builder. The bench of C Viswanath and Ram Surat Maurya directed a Bengaluru-based real estate company to refund the entire amount of Rs 3.5 crore to a buyer who refused to take possession of an under-construction villa for which the completion certificate was not issued. The buyer filed a complaint against the builder. The bench passed the judgement noting that there was a delay of over 2 years in the construction of the proposed property and it was not livable when the builder tried to hand over the same to the buyer. When the complainant went to take possession, the builder insisted they sign a paper that said they are receiving the possession of the villa in fully ready condition. The builder said the key of the property will be handed over only if the buyer signs the document. “This wasn’t a fair trade practice. Offering possession with incomplete construction and without obtaining a completion certificate does not justify the act of the builder,” it said. In this particular case, buyers Suman Kumar Jha and Pratibha Jha had booked in 2013 a 3,900 square feet luxurious villa in the project launched by Mantri Technology Constellation Private Limited in Chennai. The builder had promised to hand over the possession of flat by May 2015. The buyers had paid all instalments as per the construction-linked plan to the builder. Source: TimesNow News

The Supreme Court on Friday warned the Indian Army of contempt action in a contempt plea against Army Chief of Staff MM Naravane over the alleged delay in grant of permanent commission to women officers in army. “The army might be supreme in its own right but the constitutional court is equally supreme,” remarked Justice DY Chandrachud, while presiding over the bench also consisting of Justice AS Bopanna. On October 8, the Top Court had asked Centre to resolve the issue pertaining to denial of grant of permanent commission “at their end” in a plea filed by 72 Women Army officers alleging that they have been denied permanent commission even after obtaining 60% marks. ASG Sanjay Jain informed Court today that the issue in the current context is of 11 women officers and against 8 of them, complaints were pending. In effect, he was apprising the court of the reason as to why their grant has not taken place within permanent commissions. “There reports are confidential. A senior officer from Army has been sent physically to the Supreme court with the copies of the confidential reports to show the Judges. The case has been put up for hearing at 2 PM now. On the last date of hearing, ASG Sanjay Jain appearing for the Chief of Army Staff submitted that they had filed an affidavit laying down as to why Permanent Commission was denied and it clearly indicates that the Conduct of the lady officers was considered while rejecting grant of Permanent Commission. However, Justice Chandrachud said, “we had said that all the women who cleared 60% shall be given a permanent commission, you can’t now say 60% + fitness + Conduct, resolve it from your end so we can close the contempt.” Earlier, the Court had asked the Central Government to hold the immediate release of 72 Women Army officers while directing the office of Additional Solicitor General and Defence Ministry to file a detailed affidavit explaining the position. “We respect the Army but the issue of vigilance and discipline will come later,” Justice Chandrachud added. ASG Jain, after consulting with Senior Advocate Col R Balasubramanium said that they will come back to the Court on this. Some background in the plea filed by Lt. Col Nitisha dictates passing of an order by the Apex Court laying down the following, Administrative requirement by the Army authorities of benchmarking eligible SSC Officers for grant of Permanent Commission, with the officers lowest in merit in the corresponding male batch, held arbitrary and irrational. All women officers who have fulfilled the cut-off grade of 60% in the Special No. 5 Selection Board held in September 2020 shall be entitled to the grant of Permanent Commission, subject to medical criteria and disciplinary/vigilance clearance.” Case Title: Nilam Gorwade and Ors. Vs. Manoj Mukund Naravane and Ors. and Other Connected Matters. Source: lawbeat.in

The Real Estate (Regulation and Development) Act, 2016 [RERA] is retroactive in its application and covers all ongoing projects for which completion certificate has not been issued, the Supreme Court has held (Newtech Promoters and Developers Limited v. State of UP). A Bench of Justice UU Lalit, Ajay Rastogi and Aniruddha Bose held that by enacting the RERA, Parliament intended to bring within the fold of the statute ongoing real estate projects in its wide ambit to protect the interests of consumers/homebuyers. “Looking at the scheme of Act 2016 and Section 3 in particular of which a detailed discussion has been made, all “ongoing projects” that commence prior to the Act and in respect to which completion certificate has not been issued are covered under the Act. It manifests that the legislative intent is to make the Act applicable not only to the projects which were yet to commence after the Act became operational but also to bring under its fold the ongoing projects….” the Court held. From the scheme of the RERA, its application is retroactive in character, the Court said. “The clear and unambiguous language of the statute is retroactive in operation and by applying purposive interpretation rule of statutory construction, only one result is possible, i.e., the legislature consciously enacted a retroactive statute to ensure sale of plot, apartment or building, real estate project is done in an efficient and transparent manner so that the interest of consumers in the real estate sector is protected by all means,” the Court held. The intention of the legislature by necessary implication and without any ambiguity is to include those projects which were ongoing and for which completion certificate has not been issued, the Bench added. “It can safely be observed that the projects already completed or to which the completion certificate has been granted are not under its fold and therefore, vested or accrued rights, if any, in no manner are affected. At the same time, it will apply after getting the on­going projects and future projects registered under Section 3 to prospectively follow the mandate of the Act 2016,” the Court made it clear. Pertinently, the Court also held that power to direct return/refund of the amount to the allottee under Sections 12, 14, 18 and 19 of the Act lies with the Real Estate Regulatory Authority. At the same time, when it comes to a question of seeking relief of compensation and interest thereon under Sections 12, 14, 18 and 19, the adjudicating officer exclusively has the power to determine the same. The judgment was passed in an appeal filed by real estate company, Newtech Promoters and Developers against an order of a single member of the Uttar Pradesh Real Estate Regulatory Authority (Authority). As per this order, the appellant company was directed to refund the principal amount along with interest to homebuyers who were not delivered flats on time. Ordinarily, orders passed by the Authority are appealable under Section 43(5) of the Act, provided the statutory compliance of pre­-deposit is made under proviso to Section 43(5) before the Appellate Tribunal. However, the promoter/real estate developers approached the High Court by filing a writ petition under Articles 226 and 227 of the Constitution questioning the order. They argued that it was without jurisdiction as it was passed by a single member of the authority, who according to the appellants, holds no jurisdiction to pass such orders of refund of the amount as contemplated under Section 18 of the Act. The High Court dismissed the plea, leading to the present appeal before the Supreme Court. The Supreme Court framed the following legal issues and answered them: 1) Whether the Act 2016 is retrospective or retroactive in its operation and what will be its legal consequence if tested on the anvil of the Constitution of India? In answering this question, the top court noted that it had in its earlier judgment in Jay Mahakali Rolling Mills v. Union of India and Others explained the distinction between retrospective and retroactive application of statutes. In that judgment, it was held: “‘Retrospective’ means looking backward, contemplating what is past, having reference to a statute or things existing before the statute in question. Retrospective law means a law which looks backward or contemplates the past; one, which is made to affect acts or facts occurring, or rights occurring, before it comes into force. Retroactive statute means a statute, which creates a new obligation on transactions or considerations or destroys or impairs vested rights.” Further, the Bench also noted that the apex court in Shanti Conductors Private Limited and Another v. Assam State Electricity Board and Others held: “Retroactivity in the context of the statute consists of application of new rule of law to an act or transaction which has been completed before the rule was promulgated.” In the instant case, the Court noted that the term ‘ongoing projects’ has not been defined in RERA. However, Section 2(zn) defines ‘real estate project’ which includes ongoing real estate projects. Further, Rule 2(h) of the Uttar Pradesh Real Estate (Regulation and Development) Rules, 2016 defines ‘ongoing project’ as a project where all development works have been completed and application has been filed with the competent authority for issue of completion certificate. Thus, looking into the scheme of RERA, it covers all ongoing projects in respect of which completion certificate has not been issued and is retroactive in its application. In such cases, contractual terms between the homebuyer and real estate developer will not override the retroactive applicability of the Act, the Court said. 2) Whether the authority has jurisdiction to direct return/refund of the amount to the allottee under Sections 12, 14, 18 and 19 of the Act or the jurisdiction exclusively lies with the adjudicating officer under Section 71 of the Act? The Court, after examining the scheme of the Act and relevant provisions, ruled that the opening words of Section 71(1) of the Act made it clear that the scope and functions of

The National Commission for Protection of Child Rights (NCPCR) in its reply affidavit to the challenge to the provisions of Foreign Contributions Regulation Act (FCRA) has alleged that many child care institutions in the country are being run illegally and are receiving funds from certain suspicious foreign organisation. A Supreme Court bench consisting of Justices Khanwilkar, Dinesh Maheshwari and Ravi Kumar reserved this batch of petition for orders on 9th November 2021. These batch of petitions challenge the validity of section 7 of the FCRA act, which prohibits the transfer of foreign funds.  Section 12A which provides for aadhaar as an identification for prior approval and registration. Section 17 which mandates opening of FCRA primary account exclusively in a branch of State Bank of India in New Delhi notified by the Centre. The NCPCR has filed its reply in one case among the batch titled Vinay Vinayak Joshi Vs Union of India. The reply states that the affidavit is being filed to bring on record the work done by NCPCR to stop misuse of foreign funds by NGOs. It further states that there are NGOs without FCRA registration and they are being funded by NGOs with the registration upon receiving foreign funds. According to the reply an NGO named “Centre for Equity Studies,” (an NGO run at behest of Harsh Mander) which has FCRA registration and receives foreign funds and further gives it to NGOs namely Rainbow Foundation India, which runs Child Care Institutions (CCI) in various cities in India without having an FCRA registration. It is alleged that during the inspection of CCIs in Delhi, NCPCR has found non-compliance of mandatory provisions of the Juvenile Justice Act in addition to many incidences of offence under POCSO Act. The reply states that Rainbow Foundation India had informed them that the Ummed Aman Ghar in Delhi is jointly managed and funded by them and Centre for Equity Studies and an FIR has been registered by the police against these institutions. The reply further states that matters related to inspection of these CCIs are pending before the Delhi High Court. According to the reply, the NCPCR conducted inspection of 3 CCIs running under the Rainbow Homes Program and that they have been informed by the Chennai Police that an FIR has been registered against these CCIs. The reply states that they have written to the Ministry of Home Affairs (MHA) to look into foreign funds received by “Centre for Equity Studies” and “Arun” and how they have been utilised. The reply states that NCPCR conducted inspection of 5 children homes in Assam and Manipur which were being run by Markaz-ul-Maarif and the inspector team got to know that the children in these homes had not been produced before the Child Welfare Committee (CWC) as prescribed under law and they have been living there without the orders of CWC. According to the reply, these homes have been receiving funds from certain foreign agencies in addition to receiving government grants. According to the reply, it was found during the inspection that a home called Markaz Darul Yatama Home, Dhurbi has been receiving funds from a Turkey based organisation called IHH. The Turkish law officers interrogated IHH and found out that it is linked with international organisation. The reply states that an FIR has been registered by Assam Police against Markaz Darul Yatama for Boys and Hojai. According to the reply, NCPCR inspected CCI run by Asha Deep Foundation, Ghaziabad in November 2019 and found that their registration had been canceled and only a school hostel was supposed to be functioning in the premises. It further states that on inspection of the rooms/lockers around 26 Bibles were retrieved from children belonging to Hindu and Muslim community and that the officials of the NGO failed to show consent of family members of the children for imparting such religious education. The reply states that this prima facie indication that forceful religious conversion of children was taking place in violation of Article 28(3) of the Constitution of India and an FIR has been registered against them. According to the reply according to various statements made by the children to the CWC, the children had been illegally confined to their rooms, maltreated, beaten and have been deprived of proper food and education. The reply further states that the children were also forced to recite Christian prayers and worship a particular deity against their will and were being forced to convert to another religion. According to the reply, the NCPCR has also received complaints wherein serious allegations have been made against Nalgonda Diocese Society, Telangana of indulging in forceful religious conversion of minors staying in their homes. It has also been alleged there are illegal activities taking place in the orphanages sponsored by the organisation and that the complainant had also provided a letter between the organisation and Mgr Joseph Chevalier Foundation, Quebec for sponsorship. Advocate Swarupama Chaturvedi is appearing for the NCPC in the plea. Case Title:  Vinay Vinayak Joshi Vs Union of India & Ors.  Source: Lawbeat.in

While dealing with a case concerning the issue of trademark infringement and comparative advertising, the Delhi High Court observed that advertisers have to be given enough room to play with an advertisement and the plaintiff should not be hypersensitive towards it. As per the court, in comparative advertising, it is permissible to compare one’s goods with that of another to establish superiority. However, the court clarified that a person can’t say that the good is inferior, undesirable or bad as that would amount to defaming the good of the other. Justice Jayant Nath was dealing with a plea seeking interim injunction filed by a company that manufactures toilet cleaner under the trademark HARPIC. The case was filed against a company called DOMEX. Before the Court, the plaintiff said that defendants in their advertisements claimed that HARPC is ineffective and useless in cleaning toilets. It is further stated due to the advertisements customers have shifted to DOMEX. The plaintiff requested the court to direct the defendant to not publish or broadcast such advertisements on social media, print and television. After hearing the submissions, the court said there were some grey areas in the advertisements but they cannot be taken as a necessary representation of facts. The Bench opined that in comparative advertising comparative own product to that of competitor is permissible. However, while referring to three other ads out of five, the court noted that the bottle shown in those ads is deceptively similar to that of the plaintiffs packaging. Therefore, the court restrained the defendants from airing four advertisements and noted they cannot be allowed to disparage or denigrate a rival’s product. Read Full Judgement:  Source: lawtrend.in