SAA Counselors, Advocates and Consultants

As students of law there was always a thrust to outburst the myths and vims of the people , to bring in justice with an easement of mind , which is what let us to form our own association by investing our tie and collected efforts in a platform for just one purpose so being a Revolutionary Change in the working of the entire system for the easement and increased professionalism with ensure accountability. Which is why we Today Proudly say, “ Every Problem has a Solution.”

Sunday, July 21, 2019

RWAs formation is Mandatory

Resident Welfare Association (RWA) is an association of people who own houses in a particular society, which is responsible for the day-to-day functioning of the complex. The real estate act says that a developer has to hand over a housing project to the residents within a few months from the time he obtains the Occupancy Certificate (OC)

The real estate act pins the responsibility on developers and builders for providing and maintaining essential services, as specified in the service-level agreements, on reasonable charges, till the residents' association can take over.

RWA UNDER RERA

The guidelines in the Real Estate (Regulation and Development) Act, 2016, say that a Resident Welfare Association (RWA) must be established in a housing society within three months from the time that a majority of the houses there have been booked. If a developer does not take steps to form an RWA for such a society, the legal owners can themselves form such a body.

As per RERA guidelines issued by the Maharashtra government, builders or developers are obliged to form a RWA and trans fer the “right of common areas“ to that association after the sale of 50% of the apartments or con dominium in the project.

In the Delhi NCR regions like Noida and Gurgaon, residential colonies of housing societies have a RWA for each colony or society and each block or pocket.

HOW IS A RWA FORMED?

The developer of a project and its residents can mutually call for an annual general body meeting to form a RWA.

The Societies Registration Act, 1860, mandates that at least 10 people (or residents) should give their names to the memorandum of association, who would then be eligible to occupy posts in the management body. If more residents are interested in becoming members, elections have to be conducted. This association can make rules based on suggestions from residents and according to the rules. Known as society bylaws, every housing society has different set of laws governing it, which are binding on each and every resident (and tenants, too).

Once the ad hoc committee or a management committee is in place, the next step is to verify documents, books of accounts, and facilities promised by the developer.

Among the important documents that the committee must scrutinize are Occupancy Certificate (OC), fund details, books of account, property title, and deposits received for facilities like club, gym, spa, etc.

Resident Welfare Associations (RWAs) are typically registered under the Societies Registration Act, 1860 (in every state the act may have state-level amendments). They are governed by constitutional documents like Memorandum of Association which contains their objectives and functions.

Anil Sharan, executive member of the RWA of G Block, Preet Vihar, Delhi, says that they are voluntary associations made by residents and that they do not have statutory powers. For example, a Resident Welfare Association cannot curb your right to hold or exercise rights over the property you own and will have its powers restricted to the contribution of sums for maintenance, the organization of workshops, cultural functions, etc.

TYPES OF RWAS

There are two types of RWAs: Resident Welfare Associations and Co-operative Housing Societies.

Compared to the power of co-operative housing societies, the powers of Resident Welfare Associations are limited. They have no statutory powers as they are voluntary organizations created to manage the residents' interest. Co-operative Housing Societies have authority like the power to give permission or refuse transfer of a multi storey flat by a member.

GOVERNING BODY

The governing body includes office bearers like president, vice-president, general secretary, secretary, treasurer, finance advisor and executive members.

A RWA should have a governing body of the society to look after and manage the day-today affairs of the society. Any house owner in a society, except tenants, can be a member of its RWA.

Source :- The Times of India | October 16, 2017

Monday, May 20, 2019

EX PARTE DECREE

An ‘Ex parte decree’ is a decree passed against a defendant in absentia. Despite service of summons, where on the date of hearing only plaintiff does and a defendant does not appear the Court may hear the suit ex parte and pass a decree against the defendant. The legal validity, enforceability and operation of such decree is similar to any bi-parte decree.

The Supreme Court has held that a decree passed after taking plaintiff’s evidence, without the appearance of defendant at the trial stage, is an ex-parte decree, which could be set aside under Order IX Rule 13 of the Code of Civil Procedure.

The bench of Justice A M Sapre and Dinesh Maheshwari passed the order in the case G.Ratna Raj by LRs vs Sri Muthukumaraswamy Permanent Fund Ltd, which was an appeal against a High Court judgment, which set aside a preliminary decree under Order IX Rule 13 CPC.

The preliminary decree was passed in a suit for redemption of mortgage. Though the defendants had made appearance and filed written statement, they did not appear at the stage of evidence. So, the plaintiff’s evidence was recorded in the absence of defendant. The defendant’s evidence was closed on its non-appearance.

Based on plaintiff’s evidence, the trial court passed a preliminary decree, upon which the defendant filed application under Order IX Rule 13 CPC. The application was rejected by the trial court holding that the decree was not passed ex-parte. This was challenged in the High Court, which reversed the trial court’s rejection and set-aside the decree.

Questioning the High Court’s order, the plaintiffs came in appeal in SC.

The SC first analysed whether the trial court proceeded under Rule 2 or Rule 3 of Order 17 CPC.

Order 17, Rule 2 CPC stated that in the event of non-appearance of a party to the suit, the Court may proceed to dispose of the suit in any of the modes specified in Order IX. However, Explanation to Rule 2 said that if evidence or substantial portion of evidence of any party has been recorded, and such party fails to appear, then the Court may proceed to decide the case.

Order 17, Rule 3 CPC dealt with situations where a party commits default in producing evidence or witnesses, or in performing any act necessary for the progress of the suit, for which time was granted. In such cases, the Court may proceed to decide the suit, notwithstanding the default, if parties are present( Rule 3(a)). If parties are, or any of them is, absent, the Court may proceed in the manner specified in Order IX(Rule 3(b)).

Order IX Rule 6(a) specified that in the absence of defendant, the Court may proceed the suit ex-parte, if defendant has been duly served.

So, the issue before the Court was whether the decree was passed by taking recourse to Order IX, or by invoking Explanation of Rule 2, Order 17 on the basis of plaintiff’s evidence.

The SC ruled that the decree was not passed invoking Explanation 2 of Rule 2, Order 17. That situation will arise only if the party absent is the party who had given evidence. But here, the party absent is the defendant, who had not given evidence.

“in our view, the case at hand would not fall under Explanation to Order 17 Rule 2 of the Code because in order to attract the Explanation, “such party” which has led evidence or has led substantial part of the evidence, if fails to appear on any day to which the hearing of the case is adjourned, the Court may treat “such party” as “present” on that day and is accordingly empowered to proceed in the suit”.

The Court proceeded to observed :

“In this case, the party, who was absent and was proceeded ex parte was the “defendants” and they had not led any evidence whereas it was the plaintiff, who was present and had led his evidence”.

It was found that the Court proceeded under Order 17 Rule 2 by taking recourse to Order IX Rule 6(a) against the defendant.

“The Trial Court did proceed to hear the suit ex parte by taking recourse to the Order 9 Rule 6 (a) in terms of Order 17 Rule 2 of the Code because on that day, the plaintiff was present when the suit was called on for hearing whereas the defendants were absent despite service of summons and accordingly the Trial Court passed the preliminary decree. Such decree, in our opinion, was an “ex parte decree” within the meaning of Order 9 Rule 6 (a) read with Order 9 Rule 13 of the Code and, therefore, could be set aside under Order 9 Rule 13 on making out a sufficient ground by the defendants”, held the judgment authored by Justice Sapre.

The bench followed the 2003 SC judgment in B. Janakiramaiah Chetty vs. A.K. Parthasarthi & Ors in reaching its conclusion

Sunday, March 31, 2019

Important Points for Filing in Rera Punjab

Wednesday, February 13, 2019

Special Marriage Act only recommend for Inter caste

Parties who intend to get married under the Special marriage Act shall give a notice in writing in the specified form to the Marriage Officer of the district also the SDM in some cases , in which at least one of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given.

This is only recommend for parties who are not within the religion frame due to the length of the procedure and no flexibility.

After the service of the notice, if no objection is raised then in that case a publication depending on the state and notification passed by the officer shall take effect and can garb your length of time into this procedure for the purpose of certificate and filing of other documents in use.

Procedure

Upon receipt of an application signed by both the parties to the marriage for the registration,

And

the Marriage Officer shall give public notice thereof in such manner as may be prescribed

And

after allowing a period of thirty days for objection

And

after hearing any objection received within that period, shall, if satisfied that all the conditions are fulfilled, enter a certificate of the marriage in the Marriage Certificate Book in the prescribed form.

And

such certificate shall be signed by the parties to the marriage and by three witnesses.

A notice has to be given in writing in the form given below to the Marriage Officer of the District in which at least one of the parties to the marriage has resided for a period of not less than 30 days immediately proceeding the date on which such notice was given.

NOTICE

To,
Marriage Officer,
_______District________

We hereby give you notice that a marriage under the Special Marriage Act, 1954, is intended to be solemnized between us within three calendar months hereof.

Name:
Condition:
Occupation:
Age:
Dwelling:

Place of residence if present dwelling place not permanent.

AB

Unmarried/Widower/Divorced

Witness our hands this _____ day of ___ 200_

Signed AB Signed CD

The notice given is then published by affixing it in some conspicuous place in the office of the Marriage Officer, and before the expiration of thirty days from the date on which the notice was published any person can object to the marriage that it would contravene any of the conditions necessary for the marriage.

After the expiry of thirty days from the date on which the notice was published the marriage may be solemnized.

DECLARATION MADE BY THE BRIDEGROOM

I, _________hereby declare as follows;
I am at the present unmarried (or a widower or a divorcee, as the case may be)
I have completed _______ years of age.
I am not related to ________(the bride) within the degrees of prohibited relationship.
I am aware that, if any statement in this declaration is false, and if in making such statement I either know or believe it to be false or do not believe it to true, I am liable to imprisonment and also to fine.

SIGNED__________
(BRIDEGROOM)

DECLARATION MADE BY THE BRIDE

I, _________hereby declare as follows;
I am at the present unmarried (or a widower or a divorcee, as the case may be)
I have completed_______years of age.
I am not related to ________(the bridegroom) within the degrees of prohibited relationship.
I am aware that, if any statement in this declaration is false, and if in making such statement I either know or believe it to be false or do not believe it to true, I am liable to imprisonment and also to fine.

SIGNED__________
(BRIDE)

Signed in our presence by the aboveground ________ and __________ .So far as we are aware there is no lawful impediment to the marriage.

WITNESSES

SIGNED____

SIGNED____

SIGNED____

COUNTERSIGNED

MARRIAGE OFFICER
Dated:___day of ________200

The marriage may be solemnized at the office of the Marriage Officer or at such place within reasonable distance as the parties may desire upon payment of such additional fees as may be prescribed.

The marriage may be solemnized in a form, which the parties may choose to adopt.

However, no marriage is complete and binding unless each party says to the other in the presence of the Marriage Officer and the three witnesses in any language understood by the parties,

I_______take thee________to be my lawful wife (or husband)

After the marriage has been solemnized the Marriage Officer shall enter a certificate in the Marriage Certificate Book and this shall be signed by the parties to the marriage and the three witnesses and this shall be conclusive evidence of the marriage.

Tuesday, February 5, 2019

Documents attested by notary

A document may be a will , an affidavit , lease deed etc., Has an equeal importance as that of a registered document.
For any document to be registered it is important that the magistrate signs and verifies the document which can not be possible every where in the time of an emergency.
Hence in 2005 came a Land mark judgement supporting this statement that specifies the importance of even a notrified document which is as follows :-
Sajjan Kumar S/O Late Sri Laxmi ... vs Sri C.L. Verma District Inspector ... on 5 October, 2005

Counter and rejoinder affidavits have been exchanged between the parties and the case was ripped for final disposal. A supplementary rejoinder affidavit sworn before a notary has been filed by the applicant in the proceeding in question, on account of which a preliminary objection was raised by learned counsel of opposite party to the effect that an affidavit sworn before a Notary cannot be accepted in proceeding before this Court, therefore, it became necessary to dispose of this question as a preliminary issue first before dealing with the main issue. Thus, a question arises for consideration whether an affidavit sworn before the notary is admissible or can be presented in a proceeding before this Court or not? In this connection learned counsel for opposite party has drawn our attention to the various rules contained in Chapter IV of High Court Rules, which deals with affidavits and Oath Commissioners and submitted that in view of provisions contained in various rules set out in Chapter IV of the High Court Rules, the affidavitssworn before the Oath Commissioners appointed by the Chief Justice of the High court or other persons authorised in this behalf under the aforesaid Chapter alone can be accepted by this court and an affidavit sworn before a Notary cannot be presented/accepted in the proceeding before this court. Contrary' to it learned counsel for the applicant Sri A.K.Gaur, Advocate has submitted that affidavit sworn before a notary is acceptable in proceeding before this court and in support of his contention he has placed reliance upon two reported decision of this Court to be referred hereinafter.

6. Thus from bare reading of the aforesaid provisions it is clear that besides the persons appointed as Oath Commissioners of the High Court or district Courts, any notary appointed under Notaries Act 1952 can also administer an oath on affidavit. At this juncture it is necessary to point out that almost in similar situation a learned Single Judge of this Court has considered the question of admissibility of affidavit sworn before notary in a proceeding under U.P.Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 in case of Kashi Nath Srivastava v. Mrs. G.S.Tiwari and Ors. 1982 A.L.J. 642. In para 6 and 7 of the decision this Court held as under:

7. Under S. 139, as originally enacted affidavitssworn before a notary were not mentioned, though by a recent amendment a specific provision has been made in regard to affidavitssworn before a notary also. I am not impressed by this argument. Under the Notaries Act, vide S. 8(1 )(e), every notary is authorised to verify affidavits. It seems to me that even prior to the recent amendment of S. 139 C.P.C. an affidavitsworn before a notary would have been admissible in a civil Court and the amendment has been made only by way of abundant caution. Normally, no litigant would need to use an affidavit sworn before a notary which is a more expensive affair than an affidavit sworn before an Oath Commissioner appointed by the District Judge but in exceptional circumstances, for instance, as in the present case, where a party is residing outside the State, it may become necessary to swear an affidavit before an Oath Commissioner. The mere fact that S. 139 has now been amended to make an express provision in this behalf does not lead to the necessary inference that an affidavit sworn before a notary would have been inadmissible in a civil Court earlier. Of course, an affidavit sworn before an Oath Commissioner appointed by the District Judge or by the High Court could not be admissible before any executive authority or before a Tribunal of limited jurisdiction, but the converse did not follow. The Prescribed Authority, the appellate authority and the District Magistrate exercising powers under U.P.Act XIII of 1972 were not civil Courts and as such, in the absence of any express provision in that behalf, an affidavitsworn before an Oath Commissioner appointed by the District Judge or by the High Court could (not) be admissible. Affidavits sworn before notariescould alone be admissible. It costs more to swear an affidavit before a notary. It seems, therefore, that it was for this reason that express provision was made by the Legislature to the effect that an affidavit to be filed in any proceeding under this Act may be verified by an Oath Commissioner appointed by the District Judge or by the High Court. The provision in S. 34(6) was thus merely an enabling provision and it could not shut out an affidavit sworn before a notary which in any case would have been admissible even without any express provision in that behalf. Learned counsel for the petitioner has sought to press into service the general principle that where something is required to be done in a certain manner it should be done only in that manner or not at all and all other modes are necessarily forbidden. This principle is applicable primarily in relation to exercise of statutory powers by public authorities and is more rigidly enforced in cases where power is of a drastic nature. But even in regard to exercise of public powers the rule is not of universal application, vide Charles K. Skaria v. Mathew, , (Para 23). No rule of public policy can be imagined for exclusion of affidavits sworn before notaries from proceedings under this Act. On the contrary, public interest and the interest of the litigants clearly require that whenever a litigant finds it more convenient, he presents an affidavitsworn before a notary instead of an affidavitsworn before an Oath Commissioner. Notaries are responsible officers and are readily available all over the country. It would clearly be unfair and oppressive to the litigants to require them to travel long distances to the seat of the Prescribed Authority merely in order to swear an affidavitbefore an Oath Commissioner. I am, therefore, of the opinion that the affidavits sworn at New Delhi before any notary were clearly admissible and need not have been excluded.

Tuesday, January 29, 2019

Understanding Form M and N , Rera

DIFFERENCE BETWEEN FORM M & N RERA…

Edit

Rera a tribunal with powers to handle the increasing the litigation related to the buyer as well as Consumer in all forms .

The act saw it’s movement from the normal course of filing consumer act 1989 and Civil Procedure court to one common forum for all similar litigations for 2 reasons :-

1) Reduce the burden of litigation

2) Save the interest of customer

3) Regularise builder and hold them liable .

The act also provides provision stating that the order of the Tribunal shall be treated as Decree , hence making it appelable in the Appelate Court and Challengable in the High Court . Which also means there by that for this purpose the power of a District court has been sanctioned to the officer as well as bench of the Rera Tribunal.

The government has provided consumers with a relief under 3 Forms which are to be filled for various purposes so being Form L – M.

The forms A-K are for providing or taking information in the prescribed format for the builder/developer/developer who has to register himself / itself under section 4 of the Rera Act.

The Form L is for the purpose of Appeal .

Form N is to the Adjudicating Officer and derives the power under section 31 read with section 71 of the act , while the same section 31 also empowers the customer to file their griveance with the Authority under Form M to the Regulatory Authority

Section 31 states

Filing of complaints with the Authrity orthe adjudicating officer

Any aggrieved person may file a complaint with the Authority or the adjudicating officer, as the case may be, for any violation or contravention of the provision of this Act or the Rules and Regulations made thereunder against any promoter allottee or real estate agent as the case may be.

Explanation – For the purpose of this sub-section “person” shall include the association of allottes or any voluntary consumer association registered under the law for the time being in force.
The form, manner and fees for filing complaint under sub-section (1) shall be such as may be specified by regulations.

While Section 71 states

Power to adjudicate
1. For the purpose of adjudging compensation under sections 12, 14 and section 16, the Authority shall appoint in consultation with appropriate Government one or more judicial officer as deemed necessary, who is or has been a District Judge to be an adjudicating officer for holding an inquiry in the prescribed manner, after giving any person concerned a reasonable opportunity of behing heard:
  Provided that any person whose complaint in respect of matters covered under section 12, 14, 18, and section 19 is pending before the Consumer Disputes Redressal Forum or the Consumer Disputes Redressal Commission or the National Consumer Redressal Commission, established under section 9 of the Consumer Protectoin Act, 1986, on or before the commencement of this Act he may, with the permission of such Forum or Commission, as the ase may be, withdraw the complaint pending before it and file an applicadtion before the adjudicating officer under this Act.
2. The application for adjudging compensation under sub-section ( 1 ), shall be dealt with by the adjudicating officer as expeditiously as possible and dispose of the same within a period of sixty days from the date of receipt of such application:
  
  Provided that where any such application could not be disposed of within the said period of sixty days, the adjudicating officer shall record his reasons in writing for not disposing of the application within that period
3. While holding an inquiry, the adjudicating officer shall have power to summon and enforce the attendance of any person acquainted with the facts and circumstances of the case to give evidence or to produce any document which in the opinion of the adjudicating officer, may be useful for or relevant to the subject matter of the inquiry and if, on such inquiry, he is satisfied that the person has failed to comply with the provisions of any of the sections specified in sub-section ( 1 ), he may direct to pay such compensation or interest, as the case may be, as he thinks fit in accordance with the provisions of any of those sections.
  
  Hence Forth Filing of Form N shall consist of Compensation but as otherwise Form M shall be restricted to the Defects only.