January 2022

The Supreme Court on Wednesday slammed the real estate developer Supertech over non-payment to the homebuyers for the flats, which were ordered to be demolished. A Bench headed by Justice DY Chandrachud told Supertech to keep their office in order and to make the payment to home buyers by January 17. It said that no amount should be deducted while giving back the money. The bench told the counsel appearing for Supertech, “Interest cannot be charged on return of investment. You are looking for all sorts of reasons to not comply with the order of the court. Ensure that the payments are made by Monday, else there would be consequences.” The top court was hearing a contempt plea by home buyers who paid for the flats on which apex court judgment of August 31, 2021, directed demolition of the twin-tower 40 storeys building of Supertech’s Emerald Court project at Noida. Homebuyers alleged that Supertech invited them to collect their money. However, when they approached the company, they were told that the money would be paid back in installments together with certain deductions which were not indicated by the court. The top court further asked Noida Authority to finalise the name of the agency that would be given the task to demolish the twin towers of the Supertech Emerald Court housing project. The top court has now posted the matter for hearing on Monday. Earlier, the apex court had dismissed a plea of Supertech seeking modification of its August 31 order by which it was directed to demolish two of its 40-storey towers at its Emerald Court housing project in Noida. While directing the demolition of two towers over grave violations of building norms, the court had said that it was a result of “nefarious complicity” between Noida Authority and the Supertech and ordered that company shall carry out the demolition at its own expense within three months under the supervision of the Noida Authority and an expert body like the Central Building Research Institute. The order had come on a batch of petitions filed by homebuyers for and against the April 11, 2014 verdict of the Allahabad High Court, which had ordered the demolition of the two buildings within four months and the refund of money to apartment buyers. Source: business-standard.com

In regards to a  case of custody battle between a US resident and his wife for their minor boy, the Supreme Court noted that welfare of the minor are of predominant consideration. It further stated  that the rights of the parties to a custody dispute are irrelevant. It said the consideration of the well-being and welfare of the child must get precedence over the individual or personal rights of the parents. “The principle that the welfare of the minor shall be the predominant consideration and that the rights of the parties to a custody dispute are irrelevant has been consistently followed by this court,” a bench of justices Ajay Rastogi and Abhay S Oka said. “The consideration of the well-being and welfare of the child must get precedence over the individual or personal rights of the parents,” the bench said. It said that a custody dispute involves human issues which are always complex and complicated and what is in the welfare of the child depends on several factors. There can never be a straight jacket formula to decide the issue of custody of a minor child as what is in the paramount interest of a minor is always a question of fact, it said. ( With PTI Inputs)

New Delhi [India], December 21 (ANI): A plea has been filed in the Supreme Court seeking a fresh national accreditation policy that ensures the optimum doctor to patient and nurse to patient ratio is adhered to in all the National Accreditation Board for Hospitals and Healthcare Providers (NABH) hospitals and those who apply for accreditation. The plea filed by the Indian Professional Nurses Association, a non-governmental registered body working for the welfare of the nurses across India, also prayed to direct the Quality Council of India and the National Accreditation Board for Hospitals and Healthcare Providers (NABH) to place on record the documents it peruses while granting accreditation. The plea also sought direction for forming a committee to monitor the quality of patient care, patient safety and satisfaction. The petitioner said that the plea has been filed in light of the RTI responses and also in the context of the overburden put on medical staff during the ongoing pandemic. In the RTI response, Quality Council of India admits that it has no specified norms related to the patient-nurses ratio and it has further stated that it has not conducted any survey or study to monitor the quality of patient care, patient safety and patient satisfaction. “Most important, this petition is trying to emphasize that adherence of patient-nurse and the patient-doctor ratio is extremely significant from the point of view of patient safety,” it stated. Quality Council of India and NABH themselves claim to be the apex body that sets the basic standards for healthcare quality and patient safety has never conducted a survey or study to see if hospitals are ensuring patient safety. “There is a dire need of a fresh policy of accreditation as respondent number one and two are relying on the documents submitted by hospitals,” it added. There is also a need for NABH to conduct surprise visits along with pre-informed inspections in hospitals to monitor if the safety standards are being complied by the said hospitals, said the plea. (ANI)

Supreme Court: In a case where the NCDRC had condoned a delay for a period beyond the prescribed statutory outer limit just before the decision of the Constitution Bench on 4 March 2020 wherein it was held that the consumer fora has no power and/or jurisdiction to accept the written statement beyond the statutory period prescribed under the Act, i.e., 45 days in all, the 3-judge bench of Dr. DY Chandrachud*, Surya Kant and Vikram Nath, JJ has held that the Constitution Bench judgment would not affect applications that were pending or decided before 4 March 2020. The Court made clear that such applications for condonation would be entitled to the benefit of the position in Reliance General Insurance Co. Ltd. v.  Mampee Timbers & Hardwares Pvt. Ltd.,  (2021) 3 SCC 673, which directed consumer fora to render a decision on merits. Factual Background While entertaining a Consumer Complaint, the NCDRC has condoned the delay of 100 days in filing a written statement. The order of the NCDRC was a few days before the judgment of a Constitution Bench dated 4 March 2020, in New India Assurance company Limited v. Hilli Multipurpose Cold Storage Private Limited, (2020) 5 SCC 757 which held that the limitation period under Section 13(2)3 of the Consumer Protection Act 1986 could not be extended beyond the statutorily prescribed period of forty-five days. The appellants filed a consumer complaint before the NCDRC on 3 December 2018 based on two insurance policies on the ground of an alleged fire that took place at the factory of the appellant. The respondent received the summons on 20 May 2019 together with the order of the NCDRC and a complete set of papers consisting of the consumer complaint and documents. The respondent filed its written statement on 23 September 2019 together with IA No 15390 of 2019 for condonation of a delay of 100 days. The NCDRC, by its order dated 25 February 2020, condoned the delay subject to the respondent paying costs of Rs 50,000. What led to the confusion? A series of judgments, before and after the Constitution Bench verdict, gave contradictory views with respect to discretion of NCDRC to condone the delay beyond 45 days. Here’s how the various Supreme Court verdicts created uncertainty: Reference to the Constitution Bench The decision in J.J. Merchant v. Shrinath Chaturvedi, (2002) 6 SCC 635, which was a three Judge Bench decision, consumer fora has no power to extend the time for filing a reply/written statement beyond the period prescribed under the Act. However, thereafter, despite the above three Judge Bench decision, a contrary view was taken by a two Judge Bench and therefore the matter was referred to the five Judge Bench. During the pendency of the matter before the Constitution Bench Bhasin Infotech and Infrastructure Private Limited v. Grand Venezia Buyers Association, (2018) 17 SCC 255 Parties were permitted to file written statements beyond the prescribed limitation period, subject to payment of appropriate costs. Reliance General Insurance Co. Ltd. v.  Mampee Timbers & Hardwares Pvt. Ltd.,  (2021) 3 SCC 673 The consumer fora may accept the written statement beyond the stipulated time of 45 days in an appropriate case, on suitable terms, including the payment of costs and to proceed with the matter. Constitution Bench Verdict New India Assurance company Limited v. Hilli Multipurpose Cold Storage Private Limited, (2020) 5 SCC 757 [Constitution Bench] The Constitution Bench reiterated the view taken in the case of J.J.Merchant and held that the consumer fora has no power and/or jurisdiction to accept the written statement beyond the statutory period prescribed under the Act, i.e., 45 days in all. “28. It is true that “justice hurried is justice buried”. But in the same breath it is also said that “justice delayed is justice denied”. The legislature has chosen the latter, and for a good reason. It goes with the objective sought to be achieved by the Consumer Protection Act, which is to provide speedy justice to the consumer. It is not that sufficient time to file a response to the complaint has been denied to the opposite party. It is just that discretion of extension of time beyond 15 days (after the 30 days’ period) has been curtailed and consequences for the same have been provided under Section 13(2)(b)(ii) of the Consumer Protection Act. It may be that in some cases the opposite party could face hardship because of such provision, yet for achieving the object of the Act, which is speedy and simple redressal of consumer disputes, hardship which may be caused to a party has to be ignored.” The decision was rendered on 11 February 2021 after the judgment of the Constitution Bench in New India Assurance Company Limited (supra). That was a case where the NCDRC in a judgment dated 4 September 2020, had confirmed the order of the Karnataka State Consumer Disputes Redressal Commission dated 26 September 2018 rejecting an application seeking condonation of delay in filing the written statement. Ultimately it was left to the concerned fora to accept written statements beyond the stipulated period of 45 days in an appropriate case. Conclusion Having regard to the prospective effect of the judgment of the Constitution Bench in New India Assurance Company Limited and the orders in Reliance General Insurance Company Limited and Bhasin Infotech, which had recognized an element of discretion pending the reference, the Court held that no case for interference is made in the order of the NCDRC allowing the application for condonation of delay on merits. [Diamond Exports v. United India Insurance Company Limited, 2021 SCC OnLine SC 1241, decided on 14.12.2021] Source: scconline.com

The Supreme Court on January 11 has said that the failure of a real estate developer to obtain an occupation certificate is a ‘deficiency in service’ under the Consumer Protection Act 1986 and that homebuyers are within their rights as ‘consumers’ to demand compensation for high charges incurred by them. “In the present case, the respondent was responsible for transferring the title to the flats to the society along with the occupancy certificate. The failure of the respondent to obtain the occupation certificate is a deficiency in service for which the respondent is liable. Thus, the members of the appellant society are well within their rights as ‘consumers’ to pray for compensation as a recompense for the consequent liability (such as payment of higher taxes and water charges by the owners) arising from the lack of an occupancy certificate,” the bench comprising Justices DY Chandrachud and AS Bopanna observed. The bench was hearing a case wherein the complaint was filed by Samruddhi Co-operative Housing Society Ltd of Mumbai for refund of the excess taxes and charges paid to the municipal authorities, due to the alleged deficiency of service of the builder- Mumbai Mahalaxmi Construction Pvt. Ltd. The buyers had said that they had to pay a 25 percent higher amount on account of the property tax and an additional 50 percent towards the water charges due to the builder’s failure to obtain an occupancy certificate. Members of the Mumbai society had booked units in 1993 and were given possession of their units in 1997 but the builder had not taken steps to obtain an occupation certificate from the municipal authorities. As a result, the flat buyers were not eligible for an electricity and water connection and had to shell out  property tax at a rate 25 percent higher than the normal rate and water charges at a rate which was 50 percemt higher than the normal charge The National Consumer Disputes Redressal Commission (NCDRC) had earlier dismissed the complaint filed by homebuyers on the ground that it was barred by limitation and that it was not that it was in the nature of a recovery proceeding and not a consumer dispute. It had also said that the housing society was not a ‘consumer’ under the provisions of the Consumer Protection Act as they had claimed the recovery of higher charges paid to the municipal authorities from the builder. The Supreme Court bench in its order observed that Sections 3 and 6 of the MOFA indicate that the promoter has an obligation to provide the occupancy certificate to the flat owners. Apart from this, the promoter must make payments of outgoings such as ground rent, municipal taxes, water charges and electricity charges till the time the property is transferred to the flat owners. Where the promoter fails to pay such charges, the promoter is liable even after the transfer of property. “Based on these provisions, it is evident that there was an obligation on the respondent to provide the occupancy certificate and pay for the relevant charges till the certificate has been provided. The respondent has time and again failed to provide the occupancy certificate to the appellant society. “For this reason, a complaint was instituted in 1998 by the appellant against the respondent. The NCDRC on 20 August 2014 directed the respondent to obtain the certificate within a period of four months. Further, the NCDRC also imposed a penalty for any delay in obtaining the occupancy certificate beyond these 4 months. Since 2014 till date, the respondent has failed to provide the occupancy certificate,” it said. Owing to the failure of the respondent to obtain the certificate, there has been a direct impact on the members of the appellant in terms of the payment of higher taxes and water charges to the municipal authority. This continuous failure to obtain an occupancy certificate is a breach of the obligations imposed on the respondent under the MOFA and amounts to a continuing wrong. The appellants, therefore, are entitled to damages arising out of this continuing wrong and their complaint is not barred by limitation, the order said. The bench has allowed the appeal against the order of the NCDRC dated December 3, 2018, and hold that the complaint is maintainable. “We direct the NCDRC to decide the merits of the dispute having regard to the observations contained in the present judgment and dispose the complaint within a period of three months from the date of this judgment,” the order noted. The Supreme Court had in the Bangalore Development Authority vs Syndicate Bank also held that failure to register title deeds is a deficiency of service on the part of the builder. No registration can be done and consequently, possession cannot be handed over if an occupation certificate is not obtained. Therefore, the Supreme Court has taken note of the plight of homebuyers and has rightly held that failure to obtain OC is a deficiency of service, said advocate Kumar Mihir. This will also help thousands of homebuyers who are forced to take possession by the builders even when the projects are not complete and OC/CC has not been issued for the same by the competent authority, he added.  Source: moneycontrol.com

The Supreme Court has held that until and unless the railways provide evidence and explain the late arrival of a train to establish and prove that delay occurred because of the reasons beyond their control, they would be liable to pay compensation for such delay. “Therefore, unless and until the evidence is laid explaining the delay and it is established and proved that delay occurred which was beyond their control and/or even there was some justification for delay, the railway is liable to pay the compensation for delay and late arrival of trains”, a bench of Justice MR Shah and Justice Aniruddha Bose observed. [Case: Northern Western Railway and Another v. Sanjay Shukla Citation: LL 2021 SC 427] Source: live Law