Manoj Wadekar and Associates, Law Firm

19/04/2024

MW Associates, Bombay on its successful completion of its 2.5 years at Bombay!! 💐😇

16/04/2024

MW Associates, Bombay branch is honoured to work for Charitable Company of Mrs Ira Khan ‘Agastu Foundation’.💐🥳

24/10/2020

This article covers detailed aspects of what RERA is, what is the current status of notification of this new Indian Act, ground impact created by RERA and the road ahead for Indian real estate with RERA in place. The article is constantly updated with new developments in RERA.

So with RERA finally into play what does it really mean for you as a home buyer? How will it impact you? This article covers detailed aspects of what RERA is, what is the current status of notification of this new Indian Act, ground impact created by RERA and the road ahead for Indian real estate wi...

30/04/2020

Force majeure!!! Important topic for upcoming litigations...

The COVID-19 virus is dominating the news cycle, and it must also be dominating your personal and professional conversations. We at Manoj Wadekar & Associates i s no different; we are actively implementing our response to this situation to our clientele while operating i n an environment of consider...

30/04/2020

https://mwassociates.in/2020/04/26/temporary-injunction-and-conduct-of-the-parties/

Case Note: The Plaintiff has to establish a strong prima facie case on basis of undisputed facts. The conduct of the plaintiff will also be a very relevant consideration for purposes of injunction. The discretion at this stage has to be exercised judiciously and not arbitrarily.

30/04/2020

Important of trademark protection!!!

Intellectual property refers to creations of the ideas i.e.: inventions; literary and artistic works, symbols, names and images used in trade and business transactions.

24/04/2020

SECTION 41AA OF THE MAHARASHTRA PUBLIC TRUST ACT, 1950

Section 4IAA inserted by Mah. 8 of 1985

Section 41AA:-
Power of charity commissioner and state government to issue directions in respect of hospitals, etc to earmark certain beds etc. for poorer patients to be treated free of charge or at concessional rates
In the case of Sanjiv Gajanan Punalekar v/s State of Maharashtra & Others, Writ Petition (PIL) No. 3132/2004, decided on 17 August 2006.
The Hon’ble Bombay High Court constituted an expert committee on Oct 14, 2005 to give recommendations on all aspects keeping in view the provisions of section 41 AA of the Act. Under Section 41AA of the Bombay Public Trust Act, 1950, the scheme for treatment to indigent patients and weaker section patients was approved by the Hon. Bombay High Court on 14th of October 2005. The scheme came into effect from the 1st of September 2006.

The salient features of the scheme are-

1. All trust hospitals shall be under legal obligation to reserve and earmark 10% of the total number of operational beds for indigent patients and provide medical treatment to the indigent patients free of cost and reserve and earmark 10% of the total number of operational beds at concessional rate to the weaker section patients.” (Indigent person and weaker section person means whose total annual income does not exceed Rs. 25,000/- and Rs.50,000 respectively.” The income limit was increased to Rs. 50,000 and Rs. 1 lakh in September 2012
2. The trust hospital should have an annual turnover above Rs. 5 lakh.
3. 2% of gross billing of all patients other than patients treated under this scheme should be assigned to a separate fund called the Indigent Patients Fund (IPF) etc. etc.
This scheme was come into existence by the Judgment of Bombay High Court bearing Writ Petition No. 3132/2004. Thereafter the same has been challenged in the case of Shri. Seva Medical Foundation v. Sanjiv Gajanan Punalekar and others reported in 2014(2) Mh.L.J. 820 by way of filing Review Petition. The petitioner was seeking modification of the scheme approved by the Hon’ble High Court in the year 2005 under section 41AA of the Bombay Public Trust Act, 1950. However the Hon’ble court was of the opinion that the Scheme formulated by the Hon’ble Court does not call for any interference. Subsequently in the case of Jeevan Vikas Kendra V. The Government of Maharashtra Writ Petition No. 9751/2014. In this case the Hon’ble High Court has held that:
“the Charitable Hospitals which face individual difficulties in meeting objectives/obligations under this Scheme shall be at liberty to apply to the Charity Commissioner with all supporting documents who may consider suitable modifications, if a case for relief is made out’’.
The scheme has been formulated by the Hon’ble High Court is for treatment to indigent patients and weaker section patients, who will get the concession in treatment in charitable hospitals.
There have been various positive and negative arguments with respect of the introduction of the Scheme. No doubt the Scheme has been helping numerous indigent patients to get free treatment and the office of Charity Commissioner is played a very key role on the same, however there are complaints about producing false rations cards/ documents by persons who actually do not come within the category of Indigent patient.
Also there is a feeling in the mind of the hospital management that the many time step motherly treatment has been given to them while dealing with the complaints received against them. It is necessary to consider the problems of both the sides so as to make the Scheme relay effective.

Adv. Bhavna D. Panpatil
Legal Associate
Adv. Manoj Wadekar and Associate,
Law Firm, Pune

24/04/2020

RIGHT TO DIE – INDIA AND AROUND THE WORLD

“I’m not afraid of being dead. I’m just afraid of what might have to go through to get there.” -Pamela Bone.
We are living in the world where you choose country, choose your spouse, choose your business, you can choose how to live, but you cannot choose how to die. Everyone agree that life is the most precious gift that human being has been given. In spite of that, there are situations when life becomes so difficult or unbearable, so suffers wish in that situation that they were dead or had never been born. The primary question that arises is whether people should have the right to die and what may be the principle justifying such right.
In India there was huge discussion relating to the right to die. Whether it is included in right to life or not? Right to life is a basic natural right of human beings. In India, it is a fundamental right guaranteed under Article 21 that is Part-III of the Constitution of India. Article 21 states that:
“No person shall be deprived of his life or personal liberty except according to procedure established by law”
This fundamental right confers an obligation on the state to ensure good quality of life, livelihood, liberty and a dignified life to the people, both citizens and otherwise.
Right to life versus right to die in India-
Art, 21 confers on a person the right to live a dignified life. Dose it also confers a right not to live or right to die if a person choose to end his life; if so, what is the use of sec. 309 of IPC 1860, which punish a person who attempting to commit su***de?
The question arises whether right to life under Art. 21 includes right to die or not. This question came for consideration for first time before the H.C. of Bombay in
State of Maharashtra v/s Maruti Sripati Dubal [1] AIR 1987 Cr. L.J.549
In this case the Bombay H.C. held that the right to life guarantees under Art.21 includes right to die , and stuck down sec.309 IPC which provides punishment for attempt to commit su***de by a person as unconstitutional.
Rathinam v/s Union of India [2] (1994) SCC 394 it was held that the ‘right to life and liberty’ under Art. 21 also includes ‘right to die’
Gian Kaur v/s State of Punjab [3] 1996 SCC (2) 648 the Court overruled the decision of the Division Bench in the above stated cases and has put an end to the controversy and ruled that Art.21 is a provision guarantee protection of life and personal liberty.
New dimension to the right to die (Aruna Shanbaug case)
Euthanasia is termination of life of person who is terminally ill or in a permanent vegetative state. In other words intentionally ending of life in order to relieve pain and suffering. In the important judgment – Aruna Ramchandra Shanbaug v/s UOI, (2011) 4 SCC 454 the SC allowed “passive euthanasia” of withdrawing life support to patient in permanently vegetative state (PVS) but rejected active euthanasia of ending life through administration of lethal substances. So in connection of this the SC allowed passive euthanasia as permissible under section 309 of the IPC. On 9 March 2018, the Supreme Court of India, passed a historic judgement-law permitting Passive Euthanasia in the country.
The same judgement-law also asked for the scrapping of 309, the code which penalizes those who survive su***de-attempts. In December 2014, government of India declared its intention to do so.
Right to die around the world
Euthanasia is categorized in different ways, which includes voluntary, non-voluntary and involuntary. Voluntary euthanasia is legal in some countries like Belgium, Netherland, etc., Non-voluntary euthanasia is illegal in all countries. Invalid euthanasia is usually considered murder.
• Netherland – In April 2002, the Netherland becomes the first country to legalise euthanasia and assisted su***de. It imposes strict set of conditions that the patients must be suffering from unbearable pain and the demand must be made in “full consciousness” by the patient.
• United State – Since 1997, three states in the US have passed assisted su***de laws. Oregon, Washington and Vermont have laws that provide a protocol for the practice of physician assisted su***de.
• Germany and Switzerland – In Germany and Switzerland, active assisted su***de i.e., a doctor prescribing and handling over a lethal drug is illegal. But German and Swiss law does allow assisted su***de within certain circumstances.
• Belgium – Belgium passed a law in 2002 legalising euthanasia, becoming the second country in the world to do so.
• New Zealand – In New Zealand, in 2015, lawyer and cancer sufferer Lecretia seals brought a case to the HC for her right to the assistance of her GP, asking for a declaration that her GP would not risk conviction. So, the decision is pending relating to that in the HC.
The right to die is the ethical or institutional entitlement of the individual to commit su***de or to undergo voluntary euthanasia. This right to die is often understood to mean that a person with terminated illness should be allowed to commit su***de or assisted su***de or to decline life prolonging treatment.
Almost all counties are allowing euthanasia or assisted su***de including India.
In conclusion, it can be said that person who is born in world will also die one day. This is the universal truth, where there is life there is death. Nobody can escape from death. But one thing which every man deserve in his life is Right to life as well as Right to die with dignity. No one should be deprived from this right.
To dissolve this debate, the conflict between the principle of sanctity of life and the right of self determination and dignity of an individual is to be resolved first and right to die should not be generalized but should be exercised as an exception in the rarest of rare cases.

By Dipika Mahale
Associate Legal
Manoj Wadekar and Associates Law Firm

24/04/2020

RERA AND ITS IMPACT ON INDIAN REAL ESTATE

So with RERA finally into play what does it really mean for you as a home buyer? How will it impact you? This article covers detailed aspects of what RERA is, what is the current status of notification of this new Indian Act, ground impact created by RERA and the road ahead for Indian real estate with RERA in place. The article is constantly updated with new developments in RERA.
We all are truly aware of the main motive of the introduction of the RERA Act, 2016 is to protect the homebuyers, infuse transparency into the real estate sector and provide speedy dispute redressal for the consumer grievances.
However, there can be some more reasons to invest in the RERA Registered projects which are described below:
Now, with the introduction of the RERA Act, 2016 which has specifically defined the carpet area and its calculation, the manipulations can be avoided.
We all are truly aware of the main motive of the introduction of the RERA Act, 2016 is to protect the homebuyers, infuse transparency into the real estate sector and provide speedy dispute redressal for the consumer grievances.

What is RERA?
RERA or Real Estate (Regulation and Development) Act was passed by the Rajya Sabha on 10 March 2016 and by the Lok Sabha on 15 March 2016. The Act came into force on 1 May 2016 to regulate the still largely unregulated real estate sector. There has been a huge demand for such an Act thereby bringing in accountability and transparency into the real estate sector. With real estate being a state subject, many States have now framed rules and regulations for the smooth implementation of RERA.
A few key factors from the Act would be as follows thereby benefiting a home buyer:
1. Definition of ‘Carpet Area’
The Act brings out a clear definition of “carpet area” which means
“The net usable floor area of an apartment, excluding the area covered by the external walls, areas under services shafts, exclusive balcony or verandah area and exclusive open terrace area, but includes the area covered by the internal partition walls of the apartment”.
This means that only the area within the 4 walls of the apartment will be considered as carpet area. This brings clarity to the definition which was clearly lacking earlier. Also now buyers are only eligible to pay for the carpet area and not super built area as was the case earlier.
2. Registrations of Projects
Any new project to be launched by a builder/developer has to be registered under the State real estate regulatory authority. Any residential/commercial project with more than 8 units or more than 500 sq m has to registered. Thus any launch or advertisement of a new real estate project cannot be made unless such project is registered under RERA.
Section 4 of the RERA Act, 2016 makes it compulsory for the promoter to attach documents like Land Approval, Allotment letter, which defines the proforma of allotment letter, agreement for sale and the conveyance deed to be signed with the allottees, which naturally bind the developer to provide all these to the homebuyer. A provision in the law makes it more valuable to provide it with the same.
In order to provide reliability of the developer involved, information like, brief details of the projects launched by the developer in the past 5 years, whether already completed or being developed, its completion and pending cases against him have also been asked by the developer while submitting the registration application as per Section 4 of the RERA Act, 2016.

3. Redressal Mechanism
A common grievance in the real estate sector is the delay or even non completion of projects. Buyers previously therefore did not have any redressal mechanism apart from the regular legal framework. But RERA seeks to change this by imposing strict regulations on the developer to ensure projects are completed well within the stipulated time as promised to the buyer through their prospectus/ advertisements. The developer shall be liable to pay a total of 10% of the project cost as penalty and can face up to three years imprisonment in case of a delay in delivering the project.
At the same time even the builder has an option of approaching the regulatory authority in case of any issue with the buyer or due to default in payment by the buyer.
States like Maharashtra have even gone a step ahead and introduced a Conciliatory forum for allottees and promoters, thereby allowing matters to be settled expeditiously and hassle free. In a recent development, on 13th March 2018, the conciliation panel set up by MahaRERA settled 6 disputes between builders and warring buyers. The members of this panel consist of developers and social activists. The aim of this panel is to help settle disputes, before they even reach the real estate regulatory authority, thus saving time, money and effort of all parties at stake.
With the RERA courts already in motion, a look at the court’s approach towards erring builders has been more than satisfactory and brings in the much needed assurance. In certain cases, the courts have even ordered the refund of the initial deposit to the buyer and in some cases the courts have come up strongly on the builders thereby ensuring the grievances of the buyers are met.
One order from the Karnataka RERA court dated January 18, 2018 is noteworthy wherein the builder “Paranjape Windfields” had to reimburse the entire loan amount payable with interest to the complainant due to a breach as the carpet area was less than what was promised. The erring builder owed a total of 52 lakhs along with 18 lakhs as interest and tax amount.
4. Corpus Fund
Another grey area that RERA seeks to address is the common excuse put forward by developers to delay projects as lack of funds or in certain cases where the builder may divert funds from one project to another also leading to lack of funds. This issue has been addressed as RERA now mandates that developers put 70% of the money collected from potential buyers as per Section 4 (2)(I)(D) of the RERA Act, 2016 into a separate bank account thereby ensuring construction costs and land costs are met and projects are delivered as per schedule. This account shall serve as an escrow account and the amount to be withdrawn shall be in proportion to the completion of the project after being duly certified by an architect, chartered accountant and engineer to the same.
5. Quality of Construction
RERA has also ensured maintaining standards in quality of construction as the developer is now responsible for repairing structural defects in a project up to a time frame of 5 years and his obligation does not merely end with delivery of a said project.

6. Transparency
The regulatory authorities set up under the RERA Act shall now furnish all information pertaining to the developer, his financials, litigations if any, prospectus/advertisement of the projects along with complete details of the apartments/ flats etc thereby ensuring transparency for the buyer which was sadly lacking in the pre- RERA days.
Is RERA really proving to be beneficial for home buyers?
Originally implemented to ensure transparency in the real estate industry, RERA is yet to prove itself as an efficient body that prevents malpractices.
What Does RERA Mean for You as a Home Buyer?
A critical analysis of the Act shows it tilting in favor of homebuyers who have been long in the dock. It allows the home buyer to make an informed decision while investing in a particular project.
Disclosures
A home buyer can now get accessible information pertaining to any new project that he may want to invest in. Details related to not only the project shall be available to a potential buyer but even information such previous track record of the developers, information pertaining to their financials shall have to be disclosed on the website once the developers get registered.
With clear definitions of ‘promoter’, ‘carpet area’ etc and also with the mandatory registration of real estate agents, potential buyers can be more confident in investing their hard-earned money in any new project.
Checks and Balances
The real estate sector had been plagued with certain malpractices and their remedies have been well addressed by the Act. Non completion of projects on time, announcement and advertisement of projects without taking proper approvals, subsequent changes in plans or specifications other than what was promised to the buyer are issues that have been taken care of in the Act. Proper checks and balances have been put in place by the Act thereby boosting consumer confidence.
Renewed confidence
A potential home buyer could now with greater confidence and surety invest in under- construction projects as opposed to be ready to move in projects. The reason most buyers preferred the earlier was to avoid legal hassles and litigation costs in case of any delays in deliverance of a project or in extreme cases even non-completion. With RERA ensuring timely delivery of projects and with a sound dispute redressal mechanism including penalties for delays in place, buyers can be at ease in investing in their dream projects.
Credibility of developers
At the same time developers are also cautious in ensuring that they are obedient with the Act. Since the Act requires that the proceedings of the sale be deposited in a separate bank account to ensure timely completion of projects such a move shall boost the credibility of the developers in the long run. Developers are also taking reasonable care in uploading the documents pertaining to the project as once uploaded on the regulatory websites, such documents cannot be deleted or taken down though additional documents may be uploaded for the benefit of the buyers.
However since the Act brings within its ambit only projects with more than 8 units or more than 500 sqm, projects less than 8 units need not be RERA compliant nor do they have to make any disclosures. This is a small loophole which could well be exploited in the future as small time developers would prefer to opt for projects with less than 8 units without being scrutinized under RERA. In such cases potential buyers should proceed with caution and ensure a thorough background check is done.

Conclusion
RERA though still being in the early stage, has been found to have far reaching consequences for the real estate sector in a short span of time. The trend started by builders to commence multiple projects simultaneously has been on the decline thereby promoters now focus on a single project and ensure timely delivery of the same. Many new launches have also been put on hold and the aim now is the completion of undergoing projects. One can safely say that a RERA like Act has been long overdue to reign in the real estate sector to ensure transparency and boost confidence among end users. With numerous examples of project delays, plan violations, lack of necessary approvals in commencement of a project, the Act comes as a breather for many current or future home buyers.
Another major aim of the Act also includes to eliminate promoters of low repute that seek to build shoddy projects without being accountable to anyone but are only interested in the cash inflow and who do not accept responsibility of any post construction defect. Such promoters shall find it hard to sustain themselves in the RERA regime.
The onus now lies on the respective State governments and also to an extent on the Central government to ensure citizens are made aware of their rights and responsibilities under the Act and the Act does not become a mere paper tiger. A larger awareness has to be created so that the benefits of RERA reach the targeted audience. With National Real Estate Development Council’s (NARDECO) focus on affordable housing and RERA, the future of Indian real estate looks promising.


By Advocate Shweta Jadhav
Senior Associate
Manoj Wadekar and Associates
Law Firm