The Real Estate (Regulation and Development) Act, 2016 is an Act of the Parliament of India which seeks to protect home-buyers as well as help boost investments in the real estate industry. The Act came into force from 1 May 2016. One of the salient features of this act is that it establishes the State Real Estate Regulatory Authority in each stateto undertake the responsibility of the day to day implementation of the Act and the Rules and Regulations made thereunder. The RERA Act also provides for the constitution of the Real Estate Appellate Tribunal. The Real Estate Appellate Tribunal is a quasi-judicial body, which is empowered to hear appeals fromthe orders / decisions / directions of the Regulatory Authority or the Adjudicating Officer,as the case may be. It is established under section 43 of the RERA Act. The Real Estate Appellate Tribunal comprises one chairperson and two or more full-time judicial and technical members. The qualifications for the post of chairperson are a retired High Court judge while for the judicial member they are is a qualified advocate with an experience of twenty years or more. The technical member should have at least twenty years’ experience in urban development, housing and infrastructure. A bureaucrat having rank of Additional Secretary and above in the Government can also be appointed as a technical member. Therefore, a reliable structure for hearing and disposal of appeals has been provided for by the Act. The provisions for filing an appeal before the appellate tribunal have been laid down in Section 44 of the RERA, 2016.The appeal has to be filed within a period of sixty days ‘from the date on which a copy of the direction or order or decision made by the Authority or the adjudicating officer is received’. However, the appellate tribunal is empowered to entertain an appeal even if it is filed after the expiry of sixty days if it is satisfied that there was sufficient cause for not filing it within that period. Section 44 also specifies the general procedure to be followed for every appeal. It states that ‘the Appellate Tribunal may after giving the parties an opportunity of being heard, pass such orders, including interim orders, as it thinks fit.’ A copy of every order made by it has to be sent to the parties and to the Authority or the adjudicating officer, as the case may be. Section 44 also provides that the Appellate Tribunal should endeavour to dispose of the appealas expeditiously as possible but not later than sixty days from filing the appeal. Where the appeal could not be disposed of within sixty days, the Appellate Tribunal has to record its reasons in writing for not disposing of the appeal within that period.If a party seeks to adjourn the proceedings, it must provide valid reasons for doing so failing which the request will be rejected. Under Section 53 of the RERA Act, the Real Estate Appellate Tribunal has the powers to regulate its own procedure. It is not bound to adhere to the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872.The form of an appeal and the fees to be paid are to be prescribed by every state appellate tribunal itself. Therefore, the rules prescribed in this regard vary from state to state. For the Real Estate Appellate Tribunal of UP, the procedure for filing an appeal has been laid down under Rule 25 of the UPRERA Rules, which states that every appeal before the tribunal shall be accompanied by a fee of rupees one thousand in favour of the Appellate Tribunal. With respect to documents, the rule states: ‘Every appeal shall be filed as per Form ‘L’ along with the following documents: (a) An attested true copy of the order against which the appeal is filed; (b) Copies of the documents relied upon by the appellant and referred to in the appeal; (c) An index of the documents.’ Additional powers of the Appellate Tribunal under Rule 30 of the UPRERA Rules include the power to call upon such experts or consultants from the fields of economics, commerce, accountancy, real estate, competition, construction, architecture or engineering or from any other discipline as it deems necessary, to assist the Appellate Tribunal in the conduct of any inquiry or proceedings before it. Administrative powers of the Chairperson of the Appellate Tribunal have been specified under Rule 31. However they are not limited to the specific powers mentioned therein. Rule 31 clause (o) states any other powers that may be required for the efficient functioning of the Appellate Tribunal and enforcement of the provisions of the Act and these Rules.
Cheque is one of the most widely used means of payment. The use of cheque has increased tremendously with the rapid increase in commerce and trade and so have the cheque bouncing disputes. Section 138 of the Negotiable Instruments Act, 1881 defines the offence of dishonour of cheque and provides for its punishment. The said section states that if a cheque drawn by a person is returned by the bank unpaidfor insufficiency of funds or that the amount of money exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence. The offence under Section 138 has the following three ingredients (DashrathRupsinghRathod v. State of Maharashtra, (2014) 9 SCC 129): (a) cheque is drawn by the accused on an account maintained by him with a banker; (b) the cheque amount is in discharge of a debt or liability; and (c) the cheque is returned unpaid for insufficiency of funds or that the amount exceeds the arrangement made with the bank, the offence standing committed the moment the cheque is returned unpaid. However, taking cognizance of the offence by any court is forbidden so long as the complainant does not have the cause of action to file a complaint in terms of clause (c) of the proviso read with Section 142 of the Act. So, for constituting an offence under Section 138 of the Act, three condition precedents must be satisfied: (i) The cheque ought to have been presented to the bank within a period of 6 months from the date on which it is drawn or within the period of its validity, whichever is earlier. (ii) The payee or the holder in due course of the cheque, as the case may be, ought to make a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. (iii) The drawer of such a cheque should have failed to make payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within 15 days of the receipt of the said notice. Therefore, Section 138 also provides for safeguards to protect drawers of cheques where dishonour may take place for reasons other than those arising out of dishonest intentions.It envisages service of a notice upon the drawer of the instrument calling upon him to make the payment covered by the cheque and permits prosecution only after the expiry of the statutory period and upon failure of the drawer to make the payment within the said period (LaxmiDyechem v. State of Gujarat, (2012) 13 SCC 375.) Upon the happening of a cheque bounce, the complainant has a cause of action. Either or both civil and criminal complaints can be filed. In case of a criminal complaint, the drawer of the cheque will be punished with imprisonment for maximum2 years or fine which may extend to twice the amount of the cheque or both. In case someone wants to go for civil proceeding, a money recovery suit has to be filed under Order 37 of Civil Procedure Code within 3 years of the date of cause of action. The drawer of the cheque will be ordered to pay the full amount of the cheque and the interest accrued from the date of suit to the date of decree. If a sufficiently large amount is involved it is advisable to file both. A relevant issue for the offence under Section 138 is where the case is to be filed. Section 142(2)(a) states that if the cheque delivered through an account for collection, the case will be tried by the court not inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class within whose local jurisdiction the branch of the bank where the payee or holder in due course, as the case may be, maintains the account is situated. Section 142(2)(b) states that if cheque presented for payment by payee or holder in due course otherwise through an account, the case will be tried by the court not inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class within whose local jurisdiction the branch of the drawee bank where the drawer of the cheque maintains the account is situated. DashrathRupsinghRathod v. State of Maharashtrais a landmark judgment on Section 138 of Negotiable Instruments Act,1881. Here it was held that the objective of Parliament was to strengthen the use of cheques, distinct from other negotiable instruments, as mercantile tender and therefore it became essential for Section 138 to be freed from the requirement of proving mensrea [guilty state of mind]. This has been achieved by deeming the commission of an offence dehorsmensrea not only under Section 138 but also by virtue of the succeeding two sections. Section 139 carves out the presumption that the holder of a cheque received it for the discharge of any liability. Section 140 clarifies that it will not be available as a defence to the drawer that he had no reason to believe, when he issued the cheque, that it would be dishonoured.
The High Courts are equipped with inherent powers, under Section482 of the Code of Criminal procedural, 1973, to pass appropriate orders in order to do complete justice. Article226 of the Constitution of India also has such provision, giving the High Court of a State an ample power to issue Writs/ commands of several nature, like Writs of habeas corpus, mandamus, prohibition, quo warranto, certiorari, etc. The power to quash an FIR has been read into these provisions by judicial precedents. Therefore, people routinely approach High Courts seeking the latter’s indulgence under Section 482 & Article 226 requesting for quashing of FIRs. It is well settled law that the power of the High Court under Section 482 of CrPC can be exercised only when there is a proceeding pending before an inferior criminal court. A case can be said to be pending before the Court only if the Court, after taking cognizance of the offence on a police report (which is the final product after the conclusion of investigation) issues process to the accused. Merely because an FIR is sent to the Magistrate it does not mean that a case is pending before the Magistrate. There are numerous grounds for getting the FIR quashed. The significant ones include the accused being dragged to court in frivolous cases and the case pending for a very long time without any progress in investigation. In the landmark case of State of Haryana and Ors. v. Chaudhary BhajanLal and Ors. (1992 AIR 604), the Supreme Court laid down a few guidelines explaining when the power under Section 482 of CrPC should be used to quash FIRs. They have been reproduced below: 1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused. 2. Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4. Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. In another case, ParbatbhaiAahir&Ors. Vs. State of Gujarat &Anr., the Supreme Court after discussing various precedents on the subject summarized the following broad principles in relation to Section 482 for quashing FIRs: 1. Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court; 2. The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable. 3. In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power; 4. While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; a) to secure the ends of justice or b) to prevent an abuse of the process of any court; 5. The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated; 6. In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences; 7. As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned; 8. Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute; 9. In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and 10. There is yet an exception to the principle set out in propositions (viii) and (ix) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance. The above principles and guidelines altogether form the law dealing with the quashing of FIRs. They are very comprehensive and can address any issue arising before the High Court in a case concerning quashing of FIRs.
The High Courts have original jurisdiction under Article 226 of the Constitution of India to entertain matters which concern the violation of human rights or abuse of powers by the state. This Article empowers the High courts to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. The writs are an important tool with which the High Courts compel the state authorities to perform a specific act or to refrain from doing of an unlawful act. The writ jurisdiction is not only vast but also extraordinary. Since it is of original nature, it can be exercised to correct errors of jurisdiction, but not to upset pure findings of the fact, which is within the domain of an appellate court only. Therefore it cannot be used as a Revision or Appeal court as the rejection of the order by the subordinate court does not give rise to the question of violation of fundamental right when the alternate remedy of appealing against the lower court’s decision is available. The Supreme Court has remarked that in proceedings under Article 226 of the Constitution of India, the High Court cannot sit as a Court of Appeal over the findings recorded by a competent administrative authority, nor reappreciate evidence for itself to correct the error of fact, that does not go to the root of jurisdiction. It has been held by the Supreme Court in Roshina T v/s Abdul Azeez K.T. &Orsthat the jurisdiction under Article 226 of the Constitution of India, 1950 is special and extraordinary; it should not be exercised casually or lightly on mere asking by the litigant.The High Court cannot allow its constitutional jurisdiction to be used for deciding disputes, for which remedies under the general law, civil or criminal are available. In the aforementioned case, the parties were private persons and the dispute was related to property rights. Even then the High Court entertained the dispute under Article 226 jurisdiction. To this, the Supreme Court remarked that the High Court in granting such relief, had virtually converted the writ petition into a civil suit and itself to a Civil Court, which was not permissible. Difference between jurisdiction under articles 32 and 226. Under Article 226, the High Courts are authorised to issue directions, orders, or writs to any person or authority, including any government to enforce fundamental rights and ‘for any other purpose’. On the other hand, the Supreme Court under Article 32 can be approached only and only for the enforcement of fundamental rights conferred by Part III of the Constitution. This clearly show that Article 226 is wider in scope than Article 32. But it is noteworthy that however wide the Article 226 jurisdiction may be, it can only be attracted in cases where there is a pre-existing right.The Supreme Court has held that the writ cannot be granted unless it is established that there is an existing legal right of the applicant, or an existing duty of the respondent. Thus, the writ does not lie to create or establish a legal right but to enforce one that stood already established. The text of Article 226 read with Article 12 makes it clear that writs and directions under Article 226 can be issued only against authorities and persons having ‘authority of the State’. however, this does not mean that the writ jurisdiction isnot merely confined to governmental institutions and statutory public bodies. The judicial interpretation of the term ‘Other Authorities’ has led to inclusion of even those institutions which are not purely statutory. The emphasis has now shifted from the form of the body to the functions performed by the body.Thus, as summarised by the Supreme Court, ‘A writ under Article 226 can lie against a “person” if it is a statutory body or performs a public function or discharges a public or statutory duty.’