Supreme Court Guidelines on FIR

Supreme Court has given Directions to be followed in regards to Registration of an FIR, these directions are discussed below:

(i) Registration of FIR is mandatory under section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

(ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

(iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

(iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.

(v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

(vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

(a) Matrimonial disputes family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay in initiating criminal prosecution, for example, over 3 months delay.

In reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

(vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.

(viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, it was directed by Supreme Court that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatory and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.

Legal Notice and its importance : Procedure of filing & replying to a Legal Notice

In Today's world we enter into numerous litigations with individuals/firms wherein filing of civil suit becomes imperative which we do generally file. Some individuals/firms enters into litigation straightaway while others opt for serving a notice upon opponent of giving out intention filing of a civil suit in court of competent jurisdiction. There are certain legislations which make it mandatory to file a legal notice before filing  any litigation otherwise that litigation will be bad in law. For eg. The Negotiable Instruments Act, 1938. It therefore becomes important for us to understand as to what is meant by Legal Notice which is discussed herein.

What is a Legal Notice

A "Legal Notice” is a notice indicating your opponent that you are preparing to litigate a lawsuit against him in case the so called demand is not fulfilled.

Importance of Filing a Legal Notice

Before you decide to start a court case, there are several things that you should think about. Like majority of cases settle before trial. If you think your case can be settled, you may want to consider alternatives before you begin your lawsuit. Some of these alternatives are:

1. Negotiation (e.g., an exchange of letters between the parties);

2. Mediation; and

3. Arbitration

Taking a case to court can be an expensive and slow way of solving your problem. Many a time alternatives as mentioned above may serve out to resolve matter without even going to court. Nobody wants to waste their time & money in litigating over matter which can be resolved by negotiations very well. These days, even companies while entering into contacts with individuals/firms makes it obligatory on their part to specify  clause stating that disputes are to be settled through arbitration instead of going to court.

However, when negotiations do not work, an individual/firm need not require to directly file a suit in court of law. Individual may serve a Legal Notice demanding resolution and giving clear intention of filing a lawsuit whereby there are chances of resolution of dispute through settlement avoiding law suit trials that run for years together.

Legal Notice under section 80 of The Code of Civil Procedure, 1908

Legal Notice is filed generally in civil cases. In criminal cases, no legal notice is filed as action is taken by the State who is the supreme power. However if you are seeking civil action against government you have to first serve government a legal notice. It is only thereafter that you can file civil suit against government.

Section 80 of Civil Procedure Code,1908 deals with filing of Legal Notice  in Civil Cases against Govt.which is reproduced hereunder:-

1. No suits shall be instituted against the Government (including the Government of the State of Jammu & Kashmir)] or against a public officer in respect of any act purporting to be done by such officer in his official capacity, until the expiration of two months next after notice in writing has been delivered

2. Exception to filing of Legal Notice – A suit to obtain an urgent or immediate relief against the Government may be instituted, with leave of the Court, without serving any notice but the Court shall not grant relief in the suit,  except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:

Contents of Legal Notice

It is very important that your legal notice is drafted elaborately covering all things that you demand from the opponent.

A legal notice must include the following:

1. Concise statement of the material facts giving rise to the claim;

2. Relief sought by the plaintiff against each named defendant;

3. Concise summary of the legal basis for the relief sought

Procedure to File Legal Notice

1).You can draft the notice yourself or avail the services of a lawyer.

  2. The notice should be addressed to the person against whom you have the grievances.

  3. Mention the cause that compelled you to send the notice.

  4. Mention previous communications regarding the cause of notice.

  5. Offer the addressee a reasonable time say 30 days or 60 days to settle the matter by negotiating and by performing the desired action.

  6. Give time in notice for either fulfilment of your demand or giving reply

  7. Sent it through Registered AD post.

2). Keep a copy of receipt of post office as well as notice.

3). You can personally send the legal notice without lawyer but it is advised that draft the notice meticulously, in such a way that it is not lengthy and containing all the material contents related to the cause.

4) Though every Legal-Notice can be legally send through person himself also– but on the basis of experience it is advisable that technical legal notice be drafted by a lawyer. I hereby ABHI SHETH is offering Legal Notices Services and you can contact me for getting your legal notices drafted so as to effectively seek resolution without going to court of law.

5). Another important thing is the DRAFTING OF THE NOTICE– Many times we do not know the legal importance and meaning of the usual words which we use in a casual manner — So when you are writing down the legal-notice than you should be extremely careful about each and every word that you use and be cautious about not admitting any fact which you may later on want to deny in a court of law as once the legal notice is dispatched than you cannot make any changes in that and later on also you cannot make any contradictory statement from what you have already stated in a legal notice.

Replying to Legal Notice

Although it’s not mandatory, yet it’s always advisable to reply APPROPRIATELY to a Legal Notice, citing the relevant clauses of applicable Laws.   “No Reply to a Legal Notice” can be an added advantage to the opposite side, if it opts to proceeds to the court. The consequences for non-replying is not an offence under law, but if replied in a fitting manner, there are chances of putting an end to the future filing of vexatious cases. The reply should be given within the time stipulated in the legal notice sent by the other party. But in case it could not be replied due to the circumstances beyond your control and if there is any inordinate delay in replying, the compelling reasons may be briefly stated to avoid any misconception in the minds of the other party. If a reply is not sent for a legal notice, the other side may use it as an advantage to them while drafting the petition and put blame on you for not complying with the requirements of notice which has become the root cause for filing the case. The reply to the legal notice is generally welcomed by the Courts however for not replying to a legal notice will not automatically pave way for an ex parte decree, since the importance of a legal notice would end as soon as the Court proceeding starts. Only when you don’t appear in a case despite serving summons on you, shall the Court passes an ex parte order/decree.

Checklist For Replying To Legal Notice

First of all, read well the contents of the Legal Notice in the context of the Agreement, executed between the parties.

Secondly, check the limitation. Does the claim still within the limitation period? If the claim is time-barred, simply one line response to a legal notice will suffice.

Thirdly, check the contractual obligations of the Claimant which he was supposed to fulfill and the shortfalls, if any, shall be a good defense and one can seek full compliance of contractual deliverables to counter the payment demand notice.

Fourthly, if short-falls in the contractual deliverables are relevant and non-rebuttable then proceed expressing  your counter-threat of your rights to claim damages against such short-falls of the opposite side which may deter the opposite side proceeding any further legally.

Finally, need to mention that “The rights of my Client will be fully protected legally at your cost and consequences and this reply is without prejudice to any other legal remedy which may be available to my client”.

Touts of courts

Do you  know who is the most important person for any advocate, either practising at lower court or at District Court or at High Court or at Supreme Court, from last 22-24 years in India. The answer is ‘ Tout ’.

A person, who brings court’s work for an advocate, on commission basis, is known as ‘ Tout ’. The quantity of briefs of an advocate is not depend upon his/her efficiency, knowledge of law, ability, seniority, honesty, competency and performance etc., rather same is a result of his/her maintaining ‘ Touts ’.

Now one would ask what do you mean by ‘ Tout ’. Let me tell. A ‘ Tout ’ is a person, who induces/instigates, on the basis of falsity, any party of a court’s case/complaint/matter to engage any particular lawyer for conduction of said case/complaint/matter in the court. The fee of said lawyer in that  court’s case/complaint/matter is also settled by said ‘ Tout ’. After getting part/full payment of said fee by said lawyer from that party, about fifty percent of that payment is given to ' Tout ' by said lawyer. In this way the fifty percent of total received fee in question goes into pocket of ' Tout '.

This 'Tout ' is not bound to have any academic qualification and license from any agency to do that work of tout-ism. Anybody can become ' Tout '.

Now a days mostly ' Touts ' are among lawyer's clerks, Private Typists of courts, Private Draft-Men of courts, Officials of Courts of any rank, Officials of department of Police of any rank, Officials of department of Jail of any rank, Officials of department of Revenue of any rank, Officials of private/public Hospitals of any rank, Officials of Public/Private Banks and Assurance Companies of every level, Officials of any other Government and Private department, Officials of local Bar of Courts of every type,Officials of court's canteens of any type, Sweepers and Blacksmiths of  courts and other localities of cities and villages, Municipal Councils, Members of Gram Panchayat, Politician of any level, Persons having civil and criminal court's cases of their own etc. Even advocates himself/herself are doing job of ' Tout ' for other advocates.

Most of advocates give as much respect to any of ' Tout ' as given by them to any respectable elder member of their family. Earnings of most of ' Touts ' are much higher then most of advocates of India. Sycophancy of a ' Tout ' has become the only religion of all most all advocates of India. Now if any advocate wants to shine his/her advocacy in India, then it has become very necessary for him/her to adopt said religion of sycophancy of  ' Tout '.

Ten Points You Must Know About Real Estate (Regulation and Development) Bill, 2016

Real estate sector has been a highly unorganised sector paving way for many corrupt activities, defaults and delays much to the dismay of real estate property buyers. There was a compelling need to have a law that brings in systematisation and transparency in the field.

Hence, Real Estate (Regulation and Development) Bill, 2016 was passed by the Rajya Sabha on 10th March, 2016.

Here are ten points you must know about this important Real Estate Bill.

1) The preamble of the bill lays down the objective – ‘to establish the Real Estate Regulatory Authority for regulation and promotion of the real estate sector and to ensure sale of plot, apartment of building, as the case may be, or sale of real estate project, in an efficient and transparent manner and to protect the interest of consumers in the real estate sector and to establish an adjudicating mechanism for speedy dispute redressal and also to establish the Appellate Tribunal to hear appeals from the decisions, directions or orders of the Real Estate Regulatory Authority and the adjudicating officer and for matters connected therewith or incidental thereto.’

2) Therefore, in order to achieve the aim of a better-organised real estate sector, Section 20 provides for establishment of Real Estate Regulatory Authority. It is to be established by State Government within a year from the Act coming into force. It shall consist of a chairman and two members. They shall be appointed by the appropriate government on recommendation of a Selection Committee consisting of the Chief Justice of the High Court or his nominee, the Secretary of the Department dealing with Housing or Law Secretary from persons having adequate knowledge in the field of housing, real estate development, infrastructure etc., with professional experience of at least 20 years in case of Chairman and 15 years in case of members.

3) Chapter II of the  Real EstateBill mandates registration of all promoters, agents, structural engineers, architects, contractors, layout plans, approvals, agreements etc.

4) In order to ensure timely completion of project as buyers at present do not get possession of the property for a long time due to delay in construction, Section 4(2)(D) of the Real Estate Bill provides that 70% of the amount realised from the allottees shall be deposited in a separate account to cover the cost of construction and land cost and shall be used only for this purpose. In fact, the Section also provides that the amount can only be withdrawn after it is certified by the architect, engineer and a certified chartered accountant to ensure that the withdrawal is in proportion to the percentage of completion of project.

5) The explanation to Section 2 (za) of the Real Estate Bill provides that the rate of interest payable by promoter to allottee in case of default or delay is the same as the interest payable by allottee to promoter. The period for payment of interest by promoter shall be from the day he receives amount to the day it is refunded.

Also, Section 59(2) provides that the promoter shall be liable for an imprisonment of 3 years or penalty that extends to 10% of the cost of the real estate project if he violates the orders, directions or decisions issued under the Bill.

6) Under Section 11(4)(e), promoter has a duty to enable the allottees to form the allottees’ association within three months from the date on which majority of allottees have booked their plots. Also, under Section 14, promoter has to follow all the sanctioned plans, layout plans and specifications for construction and any change in them can only be done after obtaining consent from the allottees.

7) Section 31 states that an aggrieved person can approach the Authority or adjudicating officer to file complaints. The functions of the Authority among other things is to create a robust grievance redressal forum, to provide for amicable settlement of disputes between promoters and allottees through dispute resolution forums, digitisation of land records to guarantee conclusive property titles.

8) According to Section 35, the Authority will have the same powers as that of a civil court and can also take up cases suo moto and order inquiry into the same.

9) Under Section 3 of the Bill, no promoter can advertise, market, book or offer for sale or invite people to purchase plot, apartment or building unless the real estate project is registered with the Authority. Moreover, Section 12 imposes obligation on the promoter for veracity of the advertisement or prospectus. If a person makes an advance or deposit on the basis of the information provided in the advertisement and suffers loss or damage by reason of incorrect or false statement in the advertisement/prospectus, then the promoter is liable to compensate the allottee.

10) The buyers can make an informed decision as under Section 4(2)(b) the promoter has to submit details of all his completed and on-going projects in the last five years to the authority along with details like delay in completion, delay in payment, type of land etc.

While, digitisation and the attempt to bring in transparency will surely improvise the real estate sector, what needs to be noted is the number of approvals that every project needs and the time taken to issue each of these. Approvals like Intimation of Disapproval, Commencement Certificate, NOC, building completion certificate, occupancy certificate etc., further delay the entire process of real estate construction. Hence, along with this bill, there is a need to bring about better administrative reforms in the sector in order to make the process faster.

MOFA is scrapped / Repealed by RERA

  The Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, popularly known as MOFA was repealed by section 56 of Maharashtra Housing (Regulation & Development) Act 2012 which came into force on 6th Sept 2015.

And then The central Act : Real Estate (Regulation & Development) Act 2016 have repealed the Maharashtra Housing (Regulation & Development) Act under section 92 which came into force from 1st May 2016.

Now many of my friend were under the impression that MOFA is still prevailing. Let us visit General Clause Act Section 6 :

Effect of repeal. ?Where this Act, or any 1 [Central Act] or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not?

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.

The General Cluse Act says that an Act once repealed cannot come into force automatically. Suppose Act Z was repealed / scrapped by Act Y and Act Y was repealed by Act X. Hence Act Z cannot come to life automatically unless a separate provision or Act is passed to revive it.

The Maharashtra Act which repealed MOFA had condition for MOFA repeal :

Provided that, the repeal shall not affect,— (a) the previous operation of the law so repealed or anything duly done or suffered thereunder, or (b) any right, privilege, obligation or liability acquired, accrued or incurred under the law so repealed, or (c) any penalty, forfeiture or punishment incurred in respect of any offence committed against the law so repealed, or (d) any investigation, proceedings, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, proceedings, legal proceedings or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if this Act has not been passed : Provided further that, subject to the preceding proviso and any saving provisions made elsewhere in this Act, anything done or any action taken under the provisions of the law so repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act; and shall continue to be in force accordingly unless and until superseded by anything done or any action taken under this Act. (2) Any reference in any law or in any instrument or other document to the provisions of the law so repealed shall, unless a different intention appears, be construed as a reference to the corresponding provisions of this Act.

Which means all cases, right, interest and liabilities incurred during the MOFA’s period will be in offing and all courts and agreements will adhere to MOFA provisions for transactions entered into during MOFA’s period.

Hence, MOFA is scrapped / repealed by Maharashtra Housing Act and Maharashtra Housing Act is repealed by Central Real Estate (Regulation & Development) Act 2016 since 1st May 2016.

Henceforth, all matters will be treated under central Act. Even Article 254 says that in case of confusion as to Act enacted by Center and State on the same subject, then Central Act will prevail and will have supremacy on state Act.