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Delayed possession! beware, Builder’s loss not buyer’s

Lately cases of unreasonable delay in handing over possession to the Buyers/ Purchasers have been on a steep rise. The Buyers are left in the lurch after investing substantial money when the Builder does not abide by their own Builder Buyer Agreement and handover the possession within the stipulated time.

But are such buyers remediless? The answer is a clear NO, especially with such cases on the rise and our Consumer Forums passing much needed stinging Orders against such Builders.

What is most importantly required is awareness, as to what has to be done in such cases. The Consumer Protection Act protects such Consumers who fall prey to such situations.

Who is a Consumer under the Consumer Protection Act?

As per Section 2 (1) (d) of the Act,

(d) “consumer” means any person who,—

(i) buys any goods for a consideration which has been paid or        promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) 12 [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 12 [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person 13 [but does not include a person who avails of such services for any commercial purpose];

It is clear from the first part of the definition (which is the matter of concern in the Article) in the Act itself that any person who buys any goods for consideration, is a consumer, however, it would not include any person who obtains any such goods for resale or for commercial purposes.

In order to understand the liability of the Builder in cases of delayed possession, it is pertinent to also understand the meaning of the terms Deficiency and Complaint under the Consumer Protection Act.

As per Section 2 (1) (g) of the Consumer Protection Act

“..(g) “deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;..”

It is important to note that the Section 2 (1) (g) clears the scope of the Consumer Protection Act and it’s applicability on cases such as the ones being discussed in the present Article i.e., Deficiency means any fault,… inadequacy… in the manner of performance which is required to be maintained by or under any law  for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;… (emphasis added)

It has been held in Smt. Ramala Roy vs. Rabindra Nath Sen 1994 (I) CPR 66,

“…If somebody does not perform his part of contract, it amounts to deficiency in service…”

The Scope of filing a Complaint under the Consumer Protection Act is clear under Section 2 (1) (c) of the said Act

“(c) “complaint” means any allegation in writing made by a complainant that—

5 [(i) an unfair trade practice or a restrictive trade practice has been adopted by 6 [any trader or service provider];]

(ii) 7 [the goods bought by him or agreed to be bought by him] suffer from one or more defects;

(iii) 8 [the services hired or availed of or agreed to be hired or availed of by him] suffer from deficiency in any respect;

9 [(iv) a trader or the service provider, as the case may be, has charged for the goods or for the services mentioned in the complaint, a price in excess of the price—

(a) fixed by or under any law for the time being in force;

(b) displayed on the goods or any package containing such goods;

(c) displayed on the price list exhibited by him by or under any law for the time being in force;

(d) agreed between the parties;]

10 [(v) goods which will be hazardous to life and safety when used are being offered for sale to the public,”

A case of Delayed possession is clearly covered under unfair trade practice.

Unfair Trade Practice has been defined under Section 2(1) (r) of the said Act as follows:

[(r) “unfair trade practice” means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely:—

(1) the practice of making any statement, whether orally or in writing or by visible representation which,—

(i) falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model;

(ii) falsely represents that the services are of a particular standard, quality or grade;

(iii) falsely represents any re-built, second-hand, renovated, reconditioned or old goods as new goods;

(iv) represents that the goods or services have sponsorship, approval, performance, characteristics, accessories, uses or benefits which such goods or services do not have;

(v) represents that the seller or the supplier has a sponsorship or approval or affiliation which such seller or supplier does not have;

(vi) makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services;

(vii) gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product or of any goods that is not based on an adequate or proper test thereof:”

The Hon’ble National Commission in a case of Delayed Possession had held the following:

It can hardly be disputed that a term of this nature is wholly one sided, unfair and unreasonable.  The builder charges compound interest @ 18% per annum in the event of the delay on the part of the buyer in making payment to him but seeks to pay less than 3% per annum of the capital investment, in case he does not honour his part of the contract by defaulting in giving timely possession of the flat to the buyer.  Such a term in the Buyer’s Agreement also encourages the builder to divert the funds collected by him for one project, to another project being undertaken by him.  He thus, is able to finance a new project at the cost of the buyers of the existing project and that too at a very low cost of finance.  If the builder is to take loan from Banks or Financial Institutions, it will have to pay the interest which the Banks and Financial Institutions charge on term loan or cash credit facilities etc.  The interest being charged by the Banks and Financial Institutions for financing projects of the builders is many times more than the nominal compensation which the builder would pay to the flat buyers in the form of flat compensation.  In fact, the opposite party has not even claimed that the entire amount recovered by it from the flat buyers was spent on this very project.  This gives credence to the allegation of the complainants that their money has been used elsewhere.   Such a practice, in my view, constitutes unfair trade practice within the meaning of Section 2(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practice for the purpose of selling the product of the builder.  Though, such a practice does not specifically fall under any of the Clauses of Section 2(r) (1) of the Act that would be immaterial considering that the unfair trades, methods and practices enumerated in Section 2(r) (1) of the Act are inclusive and not exhaustive, as would be evident from the use of word “including” before the words “any of the following practices“. Shri Pradeep Narula & Anr., vs M/S Granite Gate Properties Pvt. Consumer Complaint No. 315 of 2014

“…6. It is evident from the impugned order that the complainant/appellant after having been kept waiting for more than 6 years expecting delivery of possession of the plot and seeing that the infrastructural facilities like roads, sewerage lines, water supply, etc. were not in place, the complainant demanded back the amount deposited. It is also apparent that the plan was sanctioned only in the year 2000. Obviously the money was used in developing other blocks. Reasonable period of 2 years had already expired. One may also consider that it is not a matter of development of plot and raising construction thereon. It relates to only developing plots for the purpose of allotment and by ensuring that the infrastructure is in place….

  1. In the case in hand, possession was never offered/delivered and there was delay over 3 years. In such circumstances, the respondent is directed to pay interest @ 18% p.a. from the date of each deposit till payment…” H.C. Malhotra And Ors. vs Ansal Buildwell Ltd. 3 (2006) CPJ 22 NC

There are plethora of Judgments on the issue of delayed possession in favour of Buyers/ Consumers. Essentially, what is to be borne in mind is the Complainant should be a Bona fide Buyer aggrieved by the deficiency in service of the Builder/ Respondent in not performing its part of the contractual obligation and adopting to unfair trade practise.

Supreme Court-Exercise of Writ Jurisdiction

Scope of Article 32 of the Constitution of India

The Supreme Court has the power to issue Writs under Article 32. Article 32 comes within the purview of the original jurisdiction of the Supreme Court, which means that an aggrieved person can directly approach the Supreme Court for redressal of his grievances. However, it is to be borne in mind that the extent of power of the Supreme Court under Article 32 is to issue writ for the enforcement of fundamental rights only.

“32. Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part

(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution”

 

On a plain reading of the Article 32, it is evident that it is nowhere mentioned that who may approach the Supreme Court for enforcement of rights.  However, the Supreme Court would not ordinarily allow anyone except the aggrieved person to approach the Court. Only persons in good faith and for the benefit of a person or class of persons whose fundamental rights have been violated and who are not able to approach the Court because of poverty or disability or being in a socially or economically disadvantaged position, can approach the Court.[1]

On a reading of clause 4 of Article 32, it is clear that the rights conferred by this Article “shall not be suspended except as otherwise provided for by this Constitution”. What has been provided for by the Constitution is, suspension of rights guaranteed under Article 32 at the time of emergency, except for protection guaranteed under Article 20 & 21 .

359. Suspension of the enforcement of the rights conferred by Part III during emergencies

(1) Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III (except Article 20 and 21) as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order

(1A) While an order made under clause ( 1 ) mentioning any of the rights conferred by Part III (except Article 20 and 21) is in operation, nothing in that Part conferring those rights shall restrict the power of the State as defined in the said Part to make any law or to take any executive action which the State would but for the provisions containing in that Part be competent to make or to take, but any law so made shall, to the extent of the in competency, cease to have effect as soon as the order aforesaid ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect Provided that where a Proclamation of Emergency is in operation only in any part of the territory of India, any such law may be made, or any such executive action may be taken, under this article in relation to or in any State or Union territory in which or in any part of which the Proclamation of Emergency is not in operation, if and in so far as the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation

(1B) Nothing in clause ( 1A ) shall apply

(a) to any law which does not contain a recital to the effect that such law is in relation to the Proclamation of Emergency in operation when it is made; or

(b) to any executive action taken otherwise than under a law containing such a recital

(2) An order made as aforesaid may extend to the whole or any part of the territory of India: Provided that where a Proclamation of Emergency is in operation only in a part of the territory of India, any such order shall not extend to any other part of the territory of India unless the President, being satisfied that the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation, considers such extension to be necessary

(3) Every order made under clause ( 1 ) shall, as soon may be after it is made, be laid before each House of Parliament”

 

Power of Supreme Court under Article 32

The Power of the Supreme Court under Article 32 is clearly derived from clause (2) of Article 32.

“..(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part..”

The first part of clause (2), i.e. The Supreme Court shall have power to issue directions or orders or writs, makes it clear that the scope & power of the Supreme Court is not limited to prerogative writs only but also any directions or orders to ensure enforcement of fundamental rights.  However, the powers of the Supreme Court though wide, have to be exercised sparingly and cautiously. [2]

It is important to mention here that the power of the Supreme Court under Article 32 is not only limited to  issuance of writs, the Supreme Court can also grant monetary reliefs, wherever appropriate, in order to enforce the fundamental rights of the citizens.[3]

Furthermore, Article 142 of the Constitution empowers the Supreme Court to pass any decree or make any such order for doing complete justice in any matter pending before it.

142. Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc ( 1 ) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe

(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself

 

However, the power of the High Court under Article 226 is much wider than that of the Supreme Court under Article 32.

The Supreme Court in Zee Tele Films Ltd. (M/s) vs. Union of India AIR 2005 SC 2677 held:

The Supreme Court observed that it cannot be denied that the Board does discharge some duties like the selection of an Indian cricket team, controlling the activities of the players and others involved in the game of cricket. These activities can be said to be akin to public duties or State functions and if there is any violation of any constitutional or statutory obligation or rights of other citizens, the aggrieved party may not have a relief by way of a petition under Article 32. But that does not mean that the violator of such right would go scot-free merely because it or he is not a State. Under the Indian jurisprudence there is always a just remedy for violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution which is much wider than Article 32.

Nature of Writs under Article 32

  1. a) Habeas Corpus

The definition of habeas corpus as per Black’s Law Dictionary Tenth Edition, is a writ employed to bring a person before a Court, most frequently to ensure that the person’s imprisonment or detention is not illegal.

Habeas corpus ad subjiciendum In addition to being used to test the legality of an arrest or commitment, the writ may be used to obtain judicial review of (1) the regularity of the extradition process, (2) the right to or amount of bail, or (3) the jurisdiction of a court that has imposed a criminal sentence.

It has also been reiterated by the Supreme Court, writ of habeas corpus is a guarantor against illegal detention and an up keeper of Article 21 of the Constitution.[4]

The first important Judgment with respect to habeas corpus was the ADM Jabalpur case, at the time of emergency when the majority of Judges consented that the aggrieved person could not approach Court in case of threat to their life, liberty

Moreover, it was observed by the Supreme Court in[5], not only a person who has been illegally confined but any other person, who is not a complete stranger to the person who has been confined can move the Court for writ of habeas corpus.

In Ghani vs. Jones (1970)1 Q.B. 693 (709) Lord Denning observed :

“A man’s liberty of movement is regarded so highly by the law of England that it is not to be hindered or prevented except on the surest ground”

  1. The above observation has been quoted with approval by this Court in Govt. of Andhra Pradesh vs. P. Laxmi Devi J.T. 2008 (2) SCC 639 (vide para 90).
  2. If a person is sent to jail then even if he is subsequently released, his reputation may be irreparably tarnished. As observed by this Court in State of Maharashtra & Ors. vs. Public Concernfor Governance Trust & Ors. 2007 (3) SCC 587, the reputation of a person is a facet of his right to life under Article 21of the Constitution (vide paragraphs 39 and 40 of the said decision).   
  3. b) Mandamus

The definition of Mandamus as per Writ Remedies by Justice BP Banerjee, 5th edition 2010, is a command issuing from the High Court or Supreme Court, directed against the state or the Authority mentioned in Article 32 as well as Article 226 of the Constitution requiring the performance of a particular duty therein specified, which duty results from the official duty or by operation of law.

The power of the High Court under Article 226 while issuing Mandamus is wider than the power of the Supreme Court acting under Article 32.

It is important to prove a legally protected and judicially enforceable right before seeking a Writ of Mandamus from the Court.[6]

Mandamus in cases where the duty is discretionary and not a statutory obligation, can be issued to a limited extent to the Public Authority to exercise it’s discretion within a reasonable time.[7]

  1. c) Prohibition

Writ of Prohibition is a supervisory Writ & is issued to stop inferior Courts or quasi-judicial authorities from assuming jurisdiction which they do not have or exceed jurisdiction.

A writ of Prohibition can be issued only against pending proceedings in an inferior Court or quasi-judicial authority, which would have taken up the proceedings without jurisdiction.

A petition for issuance of Writ of Prohibition, which was filed under Article 32 in the Supreme Court for restraining the screening of a serial and to enforce the fundamental rights of the Petitioner therein under Article 21 and 25 of the Constitution was dismissed and writ of prohibition could not be issued. [8]

 

  1. d) Quo warranto

Quo warranto literally means by what authority. The definition of Quo warranto as per Black’s Law Dictionary Tenth Edition. Quo warranto would lie only against a person holding a public office or franchise or liberty, to call upon him to show by what right he holds the said office, franchise or liberty. Jagdish Swarup Constitution of India third edition vol. 2.

Writ of Quo Warranto should be refused where it is an outcome of malice or ill-will.  [9]

Writ of quo warranto does not lie if the alleged violation is not of a statutory nature. [10]

From the above judgments it is explicit that there has to be a clear violation of law for Quo warranto to be issued.

Writ of quo warranto should be granted with utmost caution only in cases of clear violation of the law.

Further, it is for the person who moves the Court for issuance of writ of quo warranto to show that the office in question is public office and held without authority of law. [11]

In case of quo warranto, the conduct of the Petitioner is primary. The Courts will have to see if the Petitioner has approached the Court with clean hands and the motivation of the Petitioner in asking for a writ of quo warranto.

Writ of quo warranto can also be issued where the matter relates to good governance or the State itself. [12]

 

  1. e) Certiorari

The definition of Certiorari as per Black’s Law Dictionary Tenth Edition, is an extraordinary writ issued by an appellate court, at it’s discretion, directing a lower court to deliver the record in the case for review.

As is evident from the definition of the Writ itself, it is a supervisory Writ for supervision of the inferior Courts and Quasi-judicial functions by Authorities/Bodies/Tribunals.

Writ of certiorari is to be issued only when the inferior court acts without jurisdiction or there is error apparent.

While issuing certiorari, the Court does not act like an Appellate Authority but in supervisory capacity. Writ of certiorari is generally granted when an inferior Court or Authority has acted without or in excess of it’s jurisdiction. The superior Court does not enter into appreciation of evidence while granting writ of certiorari.[13]

Writ of Certiorari also lies in case where there is clear violation of the principles of Natural Justice.

Therefore what Article 32 provides for is a fundamental right to approach the Supreme Court to seek redressal against violation of Part III rights i.e. Fundamental rights only. The said limitation has been diluted by the Supreme Court in a catena of cases, where the Supreme Court chose to protect the fundamental rights of its citizens instead of being technical and remediless and relegating the Petitioner to High Courts. What has evolved with time is also the concept of Public Interest Litigation where grievances which affect the public at large which stricto sensu may not be violation of Part III rights have been entertained and adjudicated by the Supreme Court.

 

[1] Bandhua Mukti Morcha vs Union Of India & Others 

[2] State Of West Bengal & Ors vs Commtt.For Protect,Democratic … on 17 February, 2010

[3] Smt. Nilabati Behera alias Lalit vs. State of Orissa & Ors. 1993 SCR (2) 581

[4] Dipak Bajaj v. State of Maharashtra AIR 2009 SC 628

 

[5] Chiranjit Lal Chowdhary vs. Union of India AIR 1951 SC 41

[6] Shabi Construction Company vs. City & Industrial Development Corporation (1995) 4 SCC 301.

 

[7] Supreme Court Advocates-on- Record Association vs Union of India AIR 1994 SC 268

 

[8] Ramesh Chotalal Dalal vs. Union of India AIR 1988 SC 775

 

[9] A.N. Sashtri vs. State of Punjab and Others, (1988) Supp SCC 127

 

[10] B. Srinivasa Reddy vs. Karnataka Urban Water Supply & Drainage Board Employees’ Association AIR 2006 SC 3106

 

[11] University of Mysore vs. Govinda Rao AIR 1965 SC 491.

 

[12] Dr. Kashinath G. Jalmi And Anr. … vs. Speaker And Ors.

 

[13] T.C. Basappa vs. T. Nagappa AIR 1954 SC 440.

 

Transgender Equality

Who is a transgender?

As per the online Merriam Webster dictionary transgender would mean:

of, relating to, or being a person (as a transsexual or transvestite) who identifies with or expresses a gender identity that differs from the one which corresponds to the person’s sex at birth

As per an article of the American Psychological Association

Transgender is an umbrella term for persons whose gender identity, gender expression or behavior does not conform to that typically associated with the sex to which they were assigned at birth. Gender identity refers to a person’s internal sense of being male, female or something else; gender expression refers to the way a person communicates gender identity to others through behavior, clothing, hairstyles, voice or body characteristics.”

http://www.apa.org/topics/lgbt/transgender.aspx:

PROBLEMS FACED BY TRANSGENDERS

As per a lecture delivered by a Hon’ble Judge of the Hon’ble Supreme Court of India at Tamil Nadu State Judicial Academy on 12th February, 2011 “The constitution provides for the fundament rights of equality and tolerates no discrimination on the ground of sex, caste, Creed or religion. The Constitution also guaranties political rights and other benefits to every citizen. But the third community (Transgender) continues to be ostracized the constitution affirms equality in all spheres but the moot question is whether it is being applied.”

“The main problems that are being faced by the transgender community are of discrimination, unemployment, lack of medical facilities, Homelessness, lack medical facilities like HIV care and Hygiene, depression hormone pill abuse, tobacco and Alcohol Abuse, Penecitomy and problems related to marriage and Adoption”- Socialjustice.nic.in/pdf/introduction.pdf

That another major problem that is faced by transgender people is social Exclusion. People generally tend to mock their appearance, which causes great amount of frustration in the community. Sometimes different superstitions are also associated with transgender persons, for example if they curse, it may come true.

Some of the transgender people are also forced to beg as a consequence of unemployment. Also Transgender persons are also forced to leave their home once they are identified as being transgender.

An article on Challenges faced by the third generation: An Indian Overview stated, “though they are accepted by the main religions of India but face several discrimination and are forced to earn a living by performing in religious ceremonies, begging or sex work.

Transgender people face multiple forms of subjugation. They frequently face sexual stabbing & physical violence from the society.

Third generation also faces exclusion from Social & Cultural participation.”

“It is estimated that there are between 2-3 billion transgender persons living in India, with some calculation even higher-“

www.hrln.org/hrln/images/stories/pdf/Transgender/fact-finding-report-HRLN.pdf

JOBS TO TRANSGENDERS

A visible change somehow can be seen, with regard to the job opportunities for transgender people. With the growing awareness among the masses, people are becoming more welcoming towards transgender. However, a lot more needs to be done to give the transgender people their Constitutional rights and to ensure them a better standard of living.