Case BriefsHigh Courts

Calcutta High Court:  Rajasekhar Mantha, J. disposed of a petition observing that the Supreme Court is the only authority to clarify  whether the orders passed under a repealed Act can be executed or not.

Petitioner had approached the West Bengal Housing Industry Regulation Authority (WBHIRA) against the private respondents (promoters) for damages arising due to delay in delivery of possession of flat booked, and for money for the same paid by her. The complaint was allowed by WBHIRA and an order was passed and it was put into execution directing the District Collector, North 24 Parganas to effect recovery of the amount due as arrears of land revenue in the manner as provided in “Bengal Public Demand Recovery Act, 1913”, as per Section 40 of the WBHIRA Act, 2017 read with Rule 27 of WBHIRA Rules, 2018.

The WBHIRA was constituted under the West Bengal Housing Industry Regulation Authority under the provisions of WBHIRA Act, 2017 which was struck down by the Supreme Court as being ultra vires the Constitution of India and repugnant to the provisions of Real Estate (Regulation and Development) Act, 2016, in the case of Forum for People’s Collective Efforts (FPCE) v. State of West Bengal, (2021) 8 SCC 599. The Supreme Court had disposed of the Special Leave Petition holding that WB-HIRA was repugnant to RERA, and was hence unconstitutional.

The Court noted that it was evident from the Supreme court judgment that what has been saved by the Supreme Court under Article 142 under the Struck Down Act, are legislation, sanction and permission already granted. The orders already passed under the said Repealed Act, have not been specifically mentioned to have been saved.

The Court thus observed that it is only the Hon’ble Supreme Court under Article 142 of the Constitution of India, that can clarify as to whether the orders passed under the erstwhile WBHIRA, are saved and the execution thereof can be continued post the decision in the Forum for People’s Collective Case (Supra) or whether the execution should be carried out under the Real Estate Regulation Authority Act, 2016 keeping in view the decision of the Supreme Court in State of Manipur v. Surjakumar Okram, 2022 SCC OnLine SC 130.

[Saptaparna Ray v. District Magistrate and Collector, 2022 SCC OnLine Cal 436, decided on 28-02-2022]

For the petitioner: Ms Priyanka Agarwal

For the private respondent: Mr Pratip Mukherjee, Mr Ranjit Rajak

For the State: Mr Raha Saha, Mr Biswabrata Basu Mallick

Suchita Shukla, Editorial Assistant has put this report together 

Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.J. Kathawalla and Milind N. Jadhav, JJ., directed the builders who failed to refund the buyers their amount to date to establish that they are virtually paupers not having funds in their bank accounts and their standard of living also bears out the same.

Instant petition was filed by a retired pensioner. It was submitted that the petitioner by registered sale agreement purchased a residential flat for a total consideration of Rs 62, 77,310.

Respondents 6 and 7 were the partners of Respondent 5-Firm.

It was submitted that the possession of the said flat was to be given by 31-05-2015. An amount of Rs 61,58, 136 was paid from time to time to respondent 5 towards the purchase of the said flat. Though the building could not be completed due to several irregularities.

Petitioner filed a statutory complaint with respondent 4 – Maharashtra Real Estate Regulatory Authority seeking withdrawal from the project and refund of monies paid along with interest. Respondent 4 directed respondent 5 to refund the amount collected with the interest of @10.05% p.a.

Petitioner had again approached the respondents 5 to 7 for seeking compliance with the RERA Order, yet the same was neglected. Further, an execution application was filed wherein recovery warrant was issued under Section 40(1) of the RERA Act against respondents 5 to 7 which was forwarded to respondent 2 – Collector for execution and enforcement.

Till 2018, no action took place.

Further, the petitioner apprehended that the respondents 5 to 7 were attempting to avoid and delay the execution of the Recovery Warrant and meanwhile they were disposing of their assets in order to circumvent the due process of law.

In 2021, respondents 5 to 7 approached the petitioner for settlement, however, they committed default in payment of the first installment itself and breached the Memorandum of Understanding.

Petitioner, being aggrieved by the laxity on the part of the Statutory Authorities in execution and enforcement of the Recovery Warrant, approached this Court by the present petition.

Analysis, Law and Decision

Bench noted that respondents 5 to 7 have repeatedly brazenly breached the orders passed by this Court as well as undertakings given to this Court.

The said respondent’s counsel again reiterated in the Court that the respondents do not have any funds and they shall be in a position to pay only a sum of Rs 10 lacs only on 25-08-2021.

In view of the above stated, Court directed the respondents 5 to 7 to give complete disclosure of their movable and immovable, encumbered and unencumbered assets and properties before the next date. They shall also produce their bank statements as well as accounts operated by the firms/s and/ or companies in which they are partners and/or directors; particulars of their standard of living, as indicated through their electricity bills, their credit card statement/ s and the income tax returns that they have failed in the last three years.

Hence, the matter was adjourned to enable the respondent’s advocate to satisfy the Court that they do not have funds whatsoever.

Therefore, respondents 5 to 7 have repeatedly not only taken several flats, purchasers, for a ride, by taking their hard-earned monies and not providing them with their flats on time, nor returning their hard-earned monies, but have also repeatedly taken the Courts for a ride by giving solemn undertaking/s in order to avoid any adverse orders being passed against them, knowing fully well that they have no intention to honour the undertaking/s given by them to the Court. They are also well aware that assignments keep changing from time to time and they can, therefore, endeavour to convince the next Judge taking up the said assignment to grant them further extension of time to make payment, which order would once again be breached with impunity.

In view of the above, the matter was adjourned to 22-07-2021. [Arun Parshuram Veer v. State of Maharashtra, 2021 SCC OnLine Bom 1132, decided on 3-07-2021]

Advocates before the Court:

Mr. Nilesh Gala i/by Law Square for the Petitioner

 Mr. P.G. Sawant, AGP for Respondents 1 to 3 – State

Mr. Ashutosh M. Kulkarni a/w Mr. Akshay Kulkarni for Respondent 4

Mr. Makarand V. Raut a/w Mr. Manoj Nikam for Respondents 5 to 7