From the very ancient time since the human started being civilized there have been disputes for the ownership of property, be it any movable property or immovable property. Property can be divided into three categories as mentioned below.
- Immovable Property – Immovable Property refers to property which cannot be moved from one place to another. Ex. Land, Tree connected to land or any other thing which is connected to the land and cannot be moved without disconnecting it from the land.
- Movable Property – Movable Property refers to any property which can be moved from one place to another. eg: Car, Bike, Money, etc.
- Intellectual Property – Intellectual Property means an invention, idea, design, etc. that somebody has created and that the law prevents other people from copying.
There has been a considerable amount of growth in the laws governing property disputes. There are various laws which govern different types of disputes and other than approaching the court of law there are other methods as well. ADR in property matters helps a lot the Courts to settle disputes outside the court and reduce the number of cases. Now we will be discussing some laws which are governing or have ever governed the property disputes in India.
Currently, there is legislation named The Real Estate (development and regulation) Act, 2016 also known as “RERA”, it is a central legislation which aims to bring the real estate sector under its ambit thereby aligning the interests of the people who have been allotted under the plan and the promoters. It is in accordance with the entry 6 and 7 of the Concurrent List of the Constitution of India, which empowers the central government as well as the state governments to make laws on the topic. It was enacted in March 2016 and came into effect from May 2017.
As we can see that RERA is a newly made and enacted legislation then what was the scenario before 2016?
Prior to the enactment of RERA, there existed a redressal mechanism under the Consumer Protection Act, 1986, in respect of a real estate project, a consumer as defined under Section 2(d) could approach the State Consumer disputes redressal Commission or the National Consumer Dispute Redressal Commission depending on the pecuniary jurisdiction as provided under section 11 and 22 of the Consumer Protection Act, 1986. Other than this there are a series of central and state laws as given:-
- Transfer of Property Act, 1882 which is a central act and provides general principles of real estate.
- The Indian Contract Act, 1872 which is a principal Act governing laws related to contracts in India and the contractual obligations of parties to a contract. The chapters and sections of the Transfer of Property Act, 1882 which relate to contracts shall be considered as part of the Indian Contract Act, 1872.
- Indian Easement Act, 1882 which governs the laws relating to easements and licenses in the property. Etc.
- These are laws relating to real estate property or immovable property per se. The disputes relating to the movable property are covered under the Consumer Protection Act itself.
The question which arises is that when there was a law providing the redressal mechanism then what was the need of implementing new legislation?
The answer to this question can be that though the Consumer Protection Act, 1986 adopted a summary procedure, there were instances wherein the consumer complaints were lingered on for a long duration completely defeating the intention of the legislature. The Consumer Protection Act, 1986 was started to be criticized at a wild level for inordinate delay in granting relief to the consumers. Transfer of Property Act, 1882 talks about some parts of transferring property, etc. but it doesn’t properly focus on the disputes and their resolution. Indian Contract Act, 1872 covers the contractual part but it is also incompetent to provide any redressing machinery for the consumers in real estate or the promoters of the real estate properties. Indian easement act mainly limits to proving licenses to freely use the property.
For the Intellectual Property – There is a different bunch of legislation which includes topics such as Trademark, Copyright, Design, Patent, and Geographical Indication. Main laws governing these are as follows:-
- The Indian Trademark Act, 1940
- The Trademark and Merchandise Act, 1958
- Trademark Act, 1999
- Trademark (Amendment) Act, 2010
- Well-Known Trademarks and Trans-border Reputation
- Protection of Domains names under Trademark Law
- Reliefs against Trademark Infringement and Passing-Off
- Protection of Un-conventional marks
- India’s accession to the Madrid Protocol
- Digitization of Trademark Registry
- Government’s initiative towards IP awareness and protection
- Pattern and Design Act, 1872
- Protection of Inventions Act, 1883
- The Inventions and Design Act, 1888
- Indian Patents & Designs Act, 1911
- Indian Patents and Designs Rules, 1912
- The Patents Act, 1970
Trademark Act, 1999 brought a huge change in the IP laws and started to give IPRs more value than the previous legislations hence it is important to discuss this legislation. The fundamental changes done by the Trademark Act can be defined as given below:-
- Confirmed with the obligations under the TRIPS (Trademark Related Aspects of Intellectual Property Rights)
- Provides for registration of service marks
- Enables filing of a multi-class trademark application
- An increased term for renewal of trademark from 7 years to 10 years
- Provision of enhanced punishments in case of false trademarks
- Provision for registration of collective marks i.e. marks owned by associations
- Constitution of IPAB (Intellectual Property Appellate Board)
- Expansion of the term “mark” under section 2 to include shape, packaging, a combination of colors and any combination thereof.
Although these legislations have been created long back but in modern times the most recent trend in India is about IP laws and their implementation. After the IPR Policy 2016, the government has taken some really important steps in order to make people aware of IPRs and not just to make them aware but to stop people from using or violating other people’s IPRs. As the main step towards the implementation of the plan, the government created a cell under the Ministry of Commerce and Industry, Department for Promotion of Industry and Internal Trade. The cell works for the promotion and management of Intellectual Property in all fields.
The Trend in Disputes
The trend of disputes relating to the property matters has been changed, nowadays people don’t go for a critical litigation process but they opt for the easier, faster, cheaper and more convenient mode of resolution which is known as Alternative Dispute Resolution where the people find solution for their problem and finish their dispute at a compromising stage where no party remains unsatisfied. But it doesn’t mean that all matters relating to properties are going for ADRs and there have been incidences where the parties were in a court of law and the court had to ask them to go for ADR solutions.
A brief description of a few widely used ADR procedures is as follows:
- Negotiation: A non-binding procedure in which discussions between the parties are initiated without the intervention of any third party, with the object of arriving at a negotiated settlement of the dispute.
- Conciliation: In this case, the parties submit to the advice of a conciliator, who talks to each of them separately and tries to resolve their disputes. Conciliation is a non-binding procedure in which the conciliator assists the parties to a dispute to arrive at a mutually satisfactory and agreed settlement of the dispute.
- Mediation: A non-binding procedure in which an impartial third party known as a mediator tries to facilitate the resolution process but he cannot impose the resolution, and the parties are free to decide according to their convenience and terms.
- Arbitration: It is a method of resolution of disputes outside the court, wherein the parties refer the dispute to one or more persons appointed as an arbitrator(s) who reviews the case and imposes a decision that is legally binding on both parties. Usually, the arbitration clauses are mentioned in commercial agreements wherein the parties agree to resort to an arbitration process in case of disputes that may arise in the future regarding the contract terms and conditions.
While the judicial process is largely considered fair, a large backlog of cases to be heard and frequent adjournments result in considerable delays before a case is decided. However, matters of priority and public interest are often dealt with expeditiously and interim relief is usually allowed in cases, on the merits.
The disputes relating to purchase and sale of property, ownership, rent, lease, mortgage, construction, joint development agreement falls under the category of real estate disputes which can be resolved through online dispute resolution in India. The importance and the value attached to real estate properties are of great significance. Alternative dispute resolution in India helps the parties to avoid decades of litigation in a cost-effective manner and to maintain cordial relation.
Alternative Dispute Resolution in the matters related to property be it movable property, immovable property or intellectual property aims to reduce the burden of courts at the same time they work for the parties and make the process easy and convenient for them, in less time and money it aims to resolve the issue and leads both the parties to a compromise where both parties agree to settle the dispute.