Barrister Khan Khalid Adnan– Advocate, Supreme Court of Bangladesh
It has been like 4 years since the enactment of the Real Estate Development and Management Act 2010. Unfortunately, many people working in this sector are not familiar with various provisions of this short law. In particular, I have witnessed many criminal cases filed by the landowners and purchasers of prospective apartments against the developers under the provisions of Penal Code 1860 which is a general penal statute that does not deal with special law. Consequently, many of these cases will not sustain when it will be challenged for abuse of process of the court and there is a strong probability that many offences will go unpunished because of this lack of awareness. This article will only deal with some procedural aspects regarding the criminal offences provided under the 2010 Act. Chapter 6 of the 2010 Act deals with the penal provisions under this special law. There are basically 12 offences described from sections 19 – 30 that are essentially relevant. The possible defendants in respect of most of these offences are the developers and these cases can be filed by the landowners and allottees as the circumstances permit. The offences are compoundable, bailable and non-cognizable. The Magistrates’ Courts are empowered to conduct the trial of the offences and these proceedings would be of summary in nature. The real question is: where these cases are to be filed? Shall it be filed with the Court as a petition case or shall the complaint be lodged with the police station? Apart from the guidelines of the Code of Criminal Procedure 1898, the 2010 Act does not directly provide us with an answer. However, a reading of section 36 of the Act is most important from which we can get a clear idea as to the manner of filing the case. The offences under this Act are very different to other offences in that that an aggrieved person cannot straightway invoke his right to file a case under the 2010 Act. In particular, even after offences have been committed under sections 21, 22, 23, 24, 25, 27, 28, 29 and 30, an attempt to resolve the issue through amicable settlement should be taken at first. If such attempt to amicably settle the issue goes into vain because of the non-co-operation of any party, the other party aggrieved shall serve an arbitration notice upon the party non-co-operating expressing his intention to refer the matter to an Arbitration council. The notice receiver shall jointly with the notice giver form an Arbitration Council within 30 days of receipt of the said arbitration notice. The award of the Arbitration Council will be binding upon the parties and it cannot be challenged in any court of law. However, if the parties fail to jointly form an Arbitration Council in the first place, the aggrieved party will be entitled to file the cases in the proper court. This section certainly makes some points very clear. Firstly, criminal cases under 21, 22, 23, 24, 25, 27, 28, 29 and 30 will have to be filed before the Magistrates’ Court as petition cases whereby the complainant will be examined by the Magistrate at the time of the filing of the case. The Magistrate will then be able to take cognizance of the offence and issue summons towards the accused. They are also able to send the case for investigation to the law enforcement agency before taking cognizance. However, given that these cases are basically dependant upon documentary evidence, investigation into these types of cases would generally be unnecessary. Even if section 36 does not mention sections 19, 20 and 26, my suggestion would be to file those cases also in the Magistrates’ Court as petition cases. These are all non-cognizable offences and the complainants will be referred to the Magistrate if they go to the police station for lodging complaints (section 155, Criminal Procedure Code). Secondly, these criminal cases are not to be filed without having attempted to amicably settle the matter and, in case of failure, having served an arbitration notice on the intended defendants/accused demonstrating the intention to refer the matter to an Arbitration Council. This is a mandatory provision of law non-compliance of which would render the subsequent proceedings vitiated. Thirdly, unlike the Negotiable Instruments Act 1881 (which also contains mandatory notice provision under section 138), the 2010 Act does not provide any limitation period for filing the criminal case. Even though it is made clear that no case can be filed within 30 days of receipt of the arbitration notice, the period within which the case is to be filed is not mentioned. However, as these are criminal cases, unexplained delay would raise suspicion and hence the case should be filed within the shortest possible period after the lapse of the said 30 days’ period in case of failure to form an Arbitration Council. Finally, it should be noted that the cases would originally initiate with the filing of a petition of complaint as defined under section 4(1)(h) of the Criminal Procedure Code. The petition should contain all the ingredients of the offence that would be alleged to have been committed. It is a must to go through the penal sections under the 2010 Act under which the case is to be filed and specifically state the ingredients of the offence in the petition while relating the facts with the laws.
One last point is that the lawyers filing criminal cases even in this area have a tendency to file the cases under section 406/417 or 418 of the Penal Code (as section 420 is now a scheduled offence under the Anti-Corruption Commission Act). These are the general offences regarding breach of trust and cheating. Section 27 of the 2010 Act specifically deals with the issue of cheating by the developer company. As special law always prevails over the general law and as criminal law should not be used as a means to harass people, I would strongly state that filing of the criminal cases under the general law is violative of parliamentary intention and should be heavily condemned. However, if the petition discloses element of those general offences, the petition can still sustain. Nevertheless, I view those cases as an abuse of process being the products of unawareness or a means of harassment. Given that the real estate sector in Bangladesh is developing rapidly and also that people with nominal legal knowledge may get involved in the process as landowners or apartment purchasers, it is essential that people become more aware of these laws. The 2010 Act is in Bengali and is very easy to understand. It is highly recommended that people dealing with their land read this particular piece of law in order to know their rights and obligations.