Legal RoundUpTribunals/Regulatory Bodies/Commissions Monthly Roundup

18 Reports to Read


Competition Commission of India (CCI)


Star India providing bouquet of channels at lesser prices resulting significant loss in consumer base of Asianet Digital Network: Star India abusing dominance of its position? 

The Coram of Ashok Kumar Gupta (Chairperson) and Sangeeta Verma and Bhagwant Singh Bishnoi (Members) noted allegations against Star India for providing a bouquet of channels at lesser prices resulting in denying of market access and also amounting to unfair pricing.

Read full report here…

7 entities indulged in anti-competitive agreement for supply of signages for branches/offices/ATMs of SBI: E-mails exchanged between parties formed basis for manipulation of bidding process

Noting that in respect of cases concerning cartels that are hidden or secret, there is little or no documentary evidence and may be quite fragmentary, Coram of Ashok Kumar Gupta (Chairperson) and Sangeeta Verma and Bhagwant Singh Bishnoi (Members)  imposed penalties on 7 entities and signages for bid-rigging activities and cartelization with respect to the supply of signage for branches, offices and ATMs of State Bank of India.

Read full report here…

Forcing buyers to purchase insurance policies?  Even if dealers offer to sell insurance policies to customers, customers may yet have option to buy such policies from alternative channels

The Coram of Ashok Kumar Gupta (Chairperson) and Sangeeta Verma and Bhagwant Singh Bishnoi (Members) addressed a matter wherein it was alleged that certain Car Companies were abusing their dominant position and denying the cashless claim to consumers if the insurance policy had not been obtained through them, their dealers or their insurance broking companies.

Read full report here…


Customs, Excise and Service Tax Appellate Tribunal (CESTAT)


Amount deposited during the investigation, ipso facto, becomes pre-deposit when the assessee carries the dispute before the Appellate Forum

Anil Choudhary (Judicial Member) dismissed applications filed by the Revenue pertaining to rectification of mistakes.

Read full report here…


Income Tax Appellate Tribunal (ITAT)


Notice issued against a dead person is null and void and all consequent proceedings/orders being equally tainted are liable to be set aside

The Coram of Amit Shukla (Judicial Member) and Pradip Kumar Kedia (Accountant Member) allowed an appeal against a revisional order passed under Section 263 of the Income Tax Act, 1961.

Read full report here…

Does Income Tax Act prohibit HRA Exemption On Rent Paid To Wife?

An appeal was filed by the assessee against the order of CIT(A)-21, New Delhi dated 21-01-2019 before the bench comprising of Sh. A. D. Jain (Vice-President) and Dr. B. R. R. Kumar (Accountant Member).

Read full report here…


National Consumer Disputes Redressal Commission (NCDRC)


When a Statute provides for a particular period of limitation, it has to be scrupulously applied, as an unlimited limitation leads to a sense of uncertainty

The Coram of Justice R.K. Agrawal (President) and Dr S.M. Kantikar (Member) expressed that, when a Statute provides for a particular period of limitation, it has to be scrupulously applied, as an unlimited limitation leads to a sense of uncertainty.

Read full report here…

Will Tax deducted at source be attracted on compensation awarded under Consumer Protection Act “in the form of simple interest”?

The Coram of Dinesh Singh (Presiding Member) and Justice Karuna Nand Bajpayee (Member) expressed that in the ‘service’ of ‘housing construction’, if, in a particular case, “compensation” is computed “by way of interest” on the deposited amount it shall not be differently treated than the other cases in which the term “interest” may not at all be used in computing the compensation.

Read full report here…

If a person conceals facts about pre-existing fatal disease at the time of taking insurance, would it be a breach of insurance contract?

The Coram of Dinesh Singh (Presiding Member) and Karuna Nand Bajpayee (Member) upheld the decision of the District Commission with respect to concealment of pre-existing fatal diseases at the time of taking insurance.

Read full report here…

Consensus between dentists and patients essential to standardize treatment plans and methods: No X-ray conducted prior to performing root canal treatment: Read how NCDRC found dentist negligent

Expressing that, the consensus between the dentists and patients is essential to standardize treatment plans and methods, Coram of Justice R.K. Agrawal (President) and Dr S.M. Kantikar (Member) addressed a case of dental negligence and remarked that,

“The teeth are only part of the face and it cannot be simply concluded that the whole face will become more beautiful once the teeth become neat.”

Read full report here…


National Company Law Tribunal (NCLT)


Whether Shareholders have the right to remove Directors of a company? NCLT explains in light of Companies Act, 2013

Expressing that the management of business affairs in a company is not a sole duty of a Director, the results of a company’s performance is a team of work of Board of Directors, the Coram of Ashok Kumar Borah, Judicial Member and Shyam Babu Gautam, Technical Member, held that, Companies Act gives shareholders the right to remove the Directors of the company.

Read full report here…

National Company Law Tribunal orders insolvency proceedings against Supertech: Indebted and defaulted repayment of loan

The Coram of P.N. Prasad, Judicial Member and Rahul Bhatnagar, Technical Member, declared insolvency proceedings against the builder Supertech Limited.

Read full report here…

Logix Insolvent? NCLT initiates insolvency proceedings against Logix City Developers

The Coram of Bachu Venkat Balaram Das (Judicial Member) and Narender Kumar Bhola (Technical Member) initiates insolvency proceedings against Logix City Developers due to default in payment.

Read full report here…


National Company Law Appellate Tribunal (NCLAT)


Reduction of Capital’ is a ‘Domestic Affair’ of a particular company in which, ordinary, a Tribunal will not interfere because of the reason that it is a ‘majority decision’ which prevails

“A ‘special resolution’ is required to determine those matters for which the Act requires a ‘special resolution’ and except these matters in all other situations an ‘Ordinary Resolution’ is to be passed.”

Read full report here…


National Green Tribunal (NGT)


Unregulated tourism activities resulting in damage to environment in eco-sensitive Himalayan States of India: NGT takes suo motu cognizance

The Coram of Justice Adarsh Kumar Goel (Chairperson) and Justice Sudhir Agarwal (Judicial Member), Prof. A. Senthil Vel (Expert Member) and Dr Vijay Kulkarni (Expert Member) took suo moto cognizance based on media report highlighting the damage to the environment in eco-sensitive Himalayan States of India due to unregulated tourism.

Read full report here…


Securities Exchange Board of India (SEBI)


Can SEBI proceed against a Chartered Accountant for lack of due diligence? SAT analyses

The Coram of Justice Tarun Agarwala (Presiding Officer) and Justice M.T. Joshi (Judicial Member) while addressing a matter whether a Chartered Accountant could be held guilty by SEBI for lack of due diligence, held that,

Lack of due diligence can only lead to professional negligence which would amount to a misconduct which could be taken up only by ICAI.


Uttar Pradesh Real Estate Appellate Tribunal


Developer issued two allotment letters, increasing cost of a unit in second by correcting taxes, lease rent and advance maintenance charges: Read whether UPRERA finds it to be illegal

The Division Bench of Justice Dr D.K. Arora (Chairman) and Rajiv Misra (Administrative Member) set aside the decision of the Regulatory Authority and held that the developer did not conceal the details of the project including the status of the same.

Read full report here…


West Bengal Taxation Tribunal


Can States levy ‘Entry Tax’?

The Coram of Justice Malay Marut Banerjee (Chairman) and Suranjan Kundu (Judicial Member) and Chanchalmal Bachhawat (Technical Member), expressed that, Article 304(a) frowns upon discrimination (of a hostile nature in the protectionist sense) and not on mere differentiation.

Read full report here…

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 

Op EdsOP. ED.

In a recent judgment delivered in Forum for People’s Collective Efforts (FPCE) v. State of W.B.[1] (FPCE), the Supreme Court struck down the West Bengal Housing Industry Regulation Act, 2017[2] (HIRA). After a detailed analysis, the Court declared that HIRA, a State enactment, was repugnant to the Real Estate (Regulation and Development) Act, 2016[3] (RERA). The Court further opined that “a significant and even overwhelmingly large part” of HIRA “overlaps” with RERA and therefore struck down HIRA.[4] According to the Court, HIRA was inconsistent and repugnant to RERA. However, while striking down HIRA, the Court, in the concluding portion of its opinion also declared, in two paragraphs, that the West Bengal (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993[5] (the 1993 Act), which had been expressly repealed by HIRA, was also repugnant to RERA and would therefore stand impliedly repealed.[6] The Court further clarified that the 1993 Act would not revive upon striking down HIRA.[7]

There has been much discussion in both real estate and legal circles, particularly in Maharashtra, on the impact of the FPCE judgment[8] on the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963[9] (MOFA). This probably could be because of certain similarities between the 1993 Act and MOFA. However, MOFA has not been repealed by the State of Maharashtra and still stands in the statute books. Some are of the view that MOFA and RERA (a Union Act) extensively overlap with each other and RERA will override MOFA in light of Section 89[10] of RERA which states that RERA will have an overriding effect. However, the Bombay High Court in Hubtown Solaris Premises CHS Ltd. v. Municipal Corpn. of Greater Mumbai[11] has held that in light of Section 88[12] of RERA, MOFA continues to be valid even after the enactment of RERA. Section 88 states that application of other laws (which would include MOFA) are not barred and RERA can be applied in addition to and not in derogation of the provisions of any other law in force.

While it is given that MOFA will be vulnerable to repeated attacks after advent of RERA, the question that is being asked is whether the FPCE judgment[13] and its findings can be relied upon as precedent in the event the constitutional validity of MOFA is challenged?

A recent column written by two lawyers on Bar and Bench[14] suggests that “the Supreme Court’s finding on the implied repeal of the 1993 Act by RERA would squarely apply to MOFA as well.” This author is however of the view that the findings of the FPCE case[15] would have no application to MOFA and the validity of MOFA would have to be independently tested whilst being pitted against RERA.

The challenge in the writ petition filed by the petitioners under Article 32[16] of the Constitution of India (the Constitution) was confined to HIRA. It was contended that HIRA was a “virtual replica” of RERA, and it was directly inconsistent with the provisions of RERA. It was also submitted that HIRA had neither been reserved for nor had it received assent of the President of India under Article 254(2)[17] of the Constitution and therefore it could not prevail over RERA.

In a critical analysis of the FPCE judgment[18] published by Live Law[19], this author wrote that the Supreme Court has travelled beyond its brief by dealing with the validity of the 1993 Act. The challenge before the Supreme Court was confined to the validity of HIRA.[20] The petitioners do not appear to have challenged the 1993 Act. There is nothing in the Court’s opinion to show that the petition had been amended or modified to incorporate a challenge to the 1993 Act. Nor has the Court recorded that the petitioners had attacked the 1993 Act through a counter-affidavit or a separate application. However, the Court has recorded submissions made by the petitioners on the 1993 Act [see Part G(1)(VI) of the judgment][21], in which the petitioners argued that upon the declaration of HIRA as unconstitutional, the 1993 Act may also be declared as repealed in view of Section 89 of  RERA read with Article 254(2) of the Constitution. But assuming for a moment that the 1993 Act has been challenged, the Court has given no reasons as to why the 1993 Act was repugnant to RERA and Article 254 of the Constitution. Unlike the detailed comparison made by the Court between HIRA and RERA[22], no such comparison had been made between the 1993 Act and RERA to examine whether there is repugnancy or not. In fact, while declaring Sections 3 to 17 of the 1993 Act as repugnant to RERA, no reasons or findings have been set out by the Court to come to this conclusion.[23] In the absence of any reasoning or analysis, the FPCE judgment[24] cannot be relied on as an authority for the purpose of ascertaining whether MOFA is repugnant or inconsistent to or overridden by RERA. In other words, the ratio of FPCE judgment[25] will not have any application to MOFA.

In Roger Shashoua v. Mukesh Sharma, the Supreme Court, after summing up various authorities on ratio decidendi opined,

… a ratio of a judgment has the precedential value and it is obligatory on the part of the Court to cogitate on the judgment regard being had to the facts exposited therein and the context in which the questions had arisen and the law has been declared. It is also necessary to read the judgment in entirety and if any principle has been laid down, it has to be considered keeping in view the questions that arose for consideration in the case. One is not expected to pick up a word or a sentence from a judgment de hors from the context and understand the ratio decidendi which has the precedential value. That apart, the Court before whom an authority is cited is required to consider what has been decided therein but not what can be deduced by following a syllogistic process.[26]

                                                                                                (emphasis supplied)

In Director of Settlements v. M.R. Apparao, the Supreme Court has also opined,

… what is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence. To determine whether a decision has “declared law” it cannot be said to be a law when a point is disposed of on concession and what is binding is the principle underlying a decision. A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered.[27]

(emphasis supplied)

The question that arose before the Supreme Court in FPCE was confined to the constitutional validity of HIRA and not the 1993 Act.[28] The principal of law laid down was with respect to HIRA and not the 1993 Act.  Therefore, in the absence of any principal or reasoning set out with respect to the 1993 Act, this judgment will have no application to MOFA. The law declared by the Supreme Court under Article 141[29] of the Constitution in FPCE[30] is with respect to the validity of HIRA. At best, it can be said that the FPCE case[31] could give impetus to litigants to challenge MOFA but it would certainly not be relied on as precedent. However, even assuming for a moment that MOFA and the 1993 Act are pari materia, in the absence of any reasoning by the Court, FPCE[32] would not have any precedential value. This is because there is no law laid down by the Supreme Court specifically with respect to the 1993 Act that would have any application or bearing on MOFA. By no stretch of imagination can it be concluded that by striking down the 1993 Act, MOFA automatically stands impliedly repealed. Such a view has no sound legal basis.

In conclusion, this author is of the view that if MOFA is to be challenged, such grounds of challenge would have to be independently tested without being influenced by the FPCE judgment[33]. The judgment cannot be used to support an argument against the validity of MOFA.


* Dormaan Jamshid Dalal, Practicing Advocate at Bombay High Court and NCLT, Mumbai. He can be contacted on Twitter@DormaanD.

[1] 2021 SCC OnLine SC 361.

[2] West Bengal Housing Industry Regulation Act, 2017.

[3] Real Estate (Regulation and Development) Act, 2016.

[4] 2021 SCC OnLine SC 361, para 109.

[5] West Bengal (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993.

[6] 2021 SCC OnLine SC 361, paras 119 and 120.

[7] 2021 SCC OnLine SC 361, para 121.

[8] 2021 SCC OnLine SC 361.

[9] Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963.

[10] 89. Act to have overriding effect.—The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force.

[11]2020 SCC OnLine Bom 9174.

[12] 88. Application of other laws not barred.—The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force.

[13] 2021 SCC OnLine SC 361.

[14] <https://www.barandbench.com/columns/has-mofa-been-impliedly-repealed-by-rera-analysis-fpce-v-state-of-west-bengal> (last visited on 1-7-2021 at 3.18 p.m.).

[15] 2021 SCC OnLine SC 361.

[16] 32. Remedies for enforcement of rights conferred by this Part.—(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

[17] 254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States.—

(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.

(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:

Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.

[18] 2021 SCC OnLine SC 361.

[19] <https://www.livelaw.in/columns/supreme-court-forum-for-peoples-collective-efforts-state-of-west-bengal-174409> (last visited on 1-7-2021 at 3.22 p.m.).

[20] 2021 SCC OnLine SC 361, para 1.

[21] 2021 SCC OnLine SC 361, para 21.

[22] 2021 SCC OnLine SC 361, paras 16 to 19.

[23] 2021 SCC OnLine SC 361, paras 119 and 120.

[24] 2021 SCC OnLine SC 361.

[25] 2021 SCC OnLine SC 361.

[26] (2017) 14 SCC 722, 756 at para 59.

[27] (2002) 4 SCC 638, 650 at para 7.

[28] 2021 SCC OnLine SC 361, para 1.

[29] Article 141  of the Constitution.

[30] 2021 SCC OnLine SC 361.

[31] 2021 SCC OnLine SC 361.

[32] 2021 SCC OnLine SC 361.

[33] 2021 SCC OnLine SC 361.

Case BriefsTribunals/Commissions/Regulatory Bodies

Maharashtra Real Estate Regulatory Authority, Mumbai (MahaRERA): While focusing on the definition of carpet area in Pre-RERA and Post-RERA, Coram of Ajoy Mehta (Chairperson MahaRERA) observed that,

“If the promoter is duty-bound to honour the agreement for sale in its true letter and spirit so also the allottee is duty-bound to adhere to the terms of the agreement for sale and either party cannot shun their duties and responsibilities under the agreement for sale.”

In the present matter, respondents had registered their project “EMERALD ISLE-T8” under Section 5 of the Real Estate (Regulation and Development) Act, 2016.

Complainants seeks the following reliefs:

“Refund is demanded for the excess funds collected by LAT Realty for carpet area of 57.60 square feet at the rate of Rs 28,L3L.67 amounting to Rs 1-6,20,384 plus interest at RERA applicable rate from the date of first payment.”

Issue for consideration:

  • Whether the complaint is barred by the principle of res judicata?
  • Whether the Complainants are entitled to claim refund for difference/variation in area of the said apartment and interest thereon from date of payment of the excess amount?

Respondent had raised the issue of the principle of res judicata stating that a matter that was finally decided on merits cannot be litigated again between the same parties.

However, from the submissions of the Respondent herein it is clear that the earlier complaint No. CC00600000000000414 was filed for the purpose of seeking interest for delayed possession and the Complainants in the present complaint is seeking a refund of the difference in the carpet area of the said apartment with interest as applicable thereon.

Further, it was noted that the complainants had signed a letter whereby they confirmed and agreed to their absolute satisfaction and assured the respondent that they shall not be claiming anything further through any forum/Court.

Hence, the above-stated letter certainly binds the complainants from raising any further issues with regard to the said apartment and MahaRERA expresses displeasure with regard to the complainants turning away from their own words and commitments.

Adding to the above, Authority stated that the instant complaint was filed with a different issue and hence the principle of res judicata was not applicable and thus issue 1 was answered in negative.

Definition of carpet area under Section 2(k) of the said Act. It reads thus:

“carpet area” means net usable floor area of an apartment, excluding the area covered by the external walls, area under services, shafts, exclusive balcony or verandah area and exclusive open terrace area, but including the area covered by the internal partition walls of the Apartment.”

 Under MOFA, Section 3(m), Promoter was to disclose one of the particulars in the advertisement for sale of flats and clause (i) states the particulars to the extent of carpet area of the flat including the areas of balconies whereas under RERA, balconies have been excluded in the definition of carpet area.

Coram stated that it was clear from the facts of the complaint that on the date of booking of the said apartment MOFA was in effect and on the date of the said agreement RERA was holding the ground.

A very pertinent observation was made, that the carpet area was defined differently in both the Acts.

Hence, there was no actual change but simply a variation/difference in the methodology of calculation of carpet area as per MOFA and RERA from time to time.

Since the allotment letter was dated 1-10-2015 which was Pre-RERA i.e. MOFA was applicable for calculating carpet area and after May 2017 RERA was applicable after which the said agreement was executed i.e. 20-12-2017

Therefore, no ambiguity on the issue of carpet area was found resulting in no refund and interest.

Coram while concluding added that the discrepancy/variation/difference in terms of the carpet area of the said apartment was as per the said agreement which provided that a variation of up to 3% on account of any design change and construction exigencies which the complainant was aware of and the same had been agreed upon by them. Thus, raising an issue at a later point was not acceptable nor could be changed as the agreement was binding upon both parties.

In the present matter, complainants chose to raise an unreasonable dispute in a very irresponsible manner, leading to wasting the time of the Authority.

Cost of Rs 20,000 was imposed on the complainant and the complaint was dismissed in view of the above.[Deepak Pande v. Larsen & Toubro Ltd., Complaint No. CC006000000100256, decided on 17-08-2021]


Advocate before the Authority:

Advocate Subhashree Chatterjee for the Respondent

Case BriefsTribunals/Commissions/Regulatory Bodies

Rajasthan Real Estate Regulatory Authority, Jaipur: Coram of Nihal Chand Goel (Chairman) and Shailendra Agarwal, Salvinder Singh Sohata (Members) decides the matter in light of Section 13 of Real Estate (Regulation and Development) Act, 2016 and the significance of sale agreement.

Factual Matrix

Instant matter was with regard to a project of Jaipur Development Authority registered with RERA.

Complainant had participated in an auction organized by respondent 1 and has been successful, he had been allotted a plot in the above-stated project, being implemented by respondent 1 under an MoU with respondent 2.

Though the 15% amount was deposited with respondent 1 , but without executing an agreement for sale, the respondent had issued a further demand note of 35% amount, which was due to be deposited. Respondent included a warning in its demand note.

Complainant stated that respondent 1 had not executed an agreement for sale as envisaged under Section 13 of the RERA and was asking for further amounts to be deposited.

Complainant prayed that respondent 1 should be directed to execute an agreement for sale in terms of Section 13 of the Act and be restrained from asking for a deposit of the remaining amount until such an agreement is executed and registered.

Decision

Bench stated that all the provisions of RERA including Section 13 which apply to any advertisement, promotion, booking offer of sale, or sale of any plots in a registered project would apply to the project mentioned in the present matter.

The auction had been conducted by announcing that the project in question was a project registered with RERA and thereby informing and promising to the potential buyers that the provisions of the Act and the rules and regulations made thereunder would apply to this project and determine their relationship with Respondent 1 in respect of any plot purchased at the auction.

In view of the above, Authority directed as under:

  • Respondent 1 shall execute an agreement for sale with complainant and get it registered before demanding or accepting any further amount beyond 15% amount which was already deposited.
  • Complainant shall pay the balance amount by 30-09-2020 or within 3 days from the date of sale agreement as per the payment schedule given in the agreement for sale to be executed, whichever is earlier.
  • Respondent 1 to align its land disposal rule and terms and conditions of auction with provisions of the Act.

[Vinod Kumar Agarwal v. Jaipur Development Authority, Complaint No. RAJ-RERA-C-2020-3622, decided on 22-09-2020]


Advocates before the Authority:

For the Complainant: Advocate Pranjul Chopra

For Respondent 1: CA Mitesh Rathore 


 Additional Information

Section 13 (1) of the Act provides for an agreement to be executed and registered before the promoter accepts an amount exceeding 10 per cent of the total cost of the plot. This is a mandatory requirement of the Act and cannot be dispensed or compromised with.

Case BriefsTribunals/Commissions/Regulatory Bodies

Maharashtra Real Estate Regulatory Authority, Mumbai: Coram of Dr Vijay Satbir Singh (Member I), while laying out certain significant observations with respect to the provisions of RERA decided the complaint revolving around delayed possession of flat.

Background

By preferring the present complaint, complainants sought directions from the MahaRERA to the respondent to pay the interest for the delayed possession under Section 18 of the Real Estate (Regulation & Development) Act, 2016 (RERA) in respect of booking their respective flats in the respondent’s project.

Respondent failed to hand over the possession of the flat on time. Complainants sought payment of interest for the delayed possession and further stated that even after the respondent sold more than 50% of the units, it failed to form the association of allottees/ society of allottees till date. The respondent has also failed to execute the deed of conveyance with the complainants along with the other allottees of the project.

Further, it was alleged that the respondent was yet to hand over and allot the parking spaces to respective allottees and was demanding permission from the allottees to utilize the additional FSI and construct the additional floors.

Complainants further stated that they have signed the possession letter and have received the possession of their respective flats in the month of December 2019, though respondent was not ready to allot the parking as well as to form the society of the allottees.

Analysis, Law and Decision

Since the respondent did not hand over the possession of the flats to the complainants and violated the provisions of Section 18 of the RERA and the Rules made thereunder.

Bench did not accept the reasons cited by the respondent for the delay in possession of the flat and apparently the respondent promoter wanted to apply convenient clauses in the agreement to take undue benefits after commencement of the RERA.

Formation of Society and Execution of Conveyance Deed

As per Section 11(4)(e) of the RERA, promoter is liable to enable the formation of society within 3 months of the majority of allottees having booked their flats.

In the present matter, more than 51% of the allottees booked their flats and the full occupancy certificate had been obtained for the said project, hence it was statutory duty of respondent promoter to form a society of the allottees and the respondent had no authority to lay down any condition for the same as it was not permissible under RERA.

Construction of Additional 4th Floor

MahaRERA opined that the present project was registered with MahaRERA after commencement of the RERA and hence provisions of RERA would apply for this project.

Hence, as per Section 14 of the RERA, any change or modification in the sanctioned plan required mandatory consent of the allottees and therefore, if respondent wanted to modify plans including the construction of 4th floor, then it had to be obtained through requisite consent of allottees.

Adding to the above, MahaRERA held that the respondent was liable to pay interest for the period of delay in accordance with the terms and conditions of the agreement.

Selling of the Car Parking

 stated that there is an explicit provision under RERA that promoter can sell only covered car parking by charging a certain amount. Open Parking had to be handed over to society, it could not be sold in the open market.

Therefore, complainant allottees and respondent promoter were bound by the said provision.

Following Order was passed:

  • Respondent directed to pay interest to the complainants till the date of occupancy certificate.
  • Respondent promoter was entitled to claim the benefit of “moratorium period”.
  • Since the complainants want to continue in the project, they are entitled to seek interest for the delayed possession under section 18 of the RERA.
  • Respondent/Promoter directed to form a society as per the provision of Section 11(4)(e) of RERA
  • With regard to construction of additional floor, without the consent of the 2/3rd allottees, the same could not be constructed.
  • It was also directed that respondent was entitled to sell only covered car parking and no cash money be demanded from the allottees.

[Deepesh Singh v. Neelkanth Constructions, Complaint No. CC006000000089761, decided on 30-07-2020]


Advocates before the Authority:

Adv. Nilesh Garde appeared for all the complainants. Adv.Khushiram Jadhvani a/w. Adv. Manali Saraf appeared for the respondent.

Op EdsOP. ED.

In the March of 2020, the Insolvency and Bankruptcy Code, 2016[1] (Code), notified two new thresholds which significantly impacted the real estate industry. Firstly, by a notification[2], the minimum threshold of default under Section 4(1)[3] of the Code was increased from Rs 1 lakh to Rs 1 crore, keeping in mind the financial repercussions of the global pandemic. Secondly, an amendment[4] was introduced, which mandated a numerical threshold requirement for allottees of a real estate project to trigger the corporate insolvency resolution process (CIRP).

Rationale behind the introduction of a numerical threshold for allottees

The Supreme Court in Pioneer Urban Land and Infrastructure Ltd. v. Union of India[5] had clarified that the sale agreement between the developer and homebuyer has a “commercial effect” of borrowing, as the money is paid in advance for temporary use, so that a flat/apartment could be given back to the homebuyer.

This essentially gave every individual allottee the status of a financial creditor, allowing them to trigger the CIRP against the promoter/developer of the real estate project in case of a default. This led to a large number of applications, frivolous or otherwise being filed in the National Company Law Tribunal (NCLT), thereby augmenting the misuse of the provisions of the Code, in turn leading to the disruption of the real estate sector.

Thus, an amendment was introduced in Section 7[6] of the Code, requiring the application for initiating CIRP to be filed jointly by at least a hundred allottees or one-tenth of the total number of allottees in the same real estate project, whichever is less.

Furthermore, the Supreme Court, in Manish Kumar v. Union of India[7] (Manish Kumar) while upholding the constitutionality of the amendment also threw light on the rationality and the need for the introduction of such a threshold. The Court observed that the consequence of empowering a lone allottee to initiate the CIRP at his discretion could thwart the entire real estate project, thereby endangering the interests of other allottees who were not in favour of the same and might have faith in the developer.

This post seeks to analyse the ground realities and the ambiguities that may arise in light of the amendment and the Manish Kumar[8] judgment.

Prerequisites for initiating CIRP

In light of the notification and the amendment, an allottee has to now fulfil the following two prerequisites to initiate the insolvency proceedings under Section 7 of the Code:

  1. The total amount of default by the corporate debtor shall be more than Rs 1 crore; and
  2. the application has to be filed jointly by hundred allottees or one-tenth of the total number of allottees in the same real estate project, whichever is less.

Calculation of total default

The threshold of Rs 1 crore means the total default of the corporate debtor to any financial creditor and not necessarily only to the applicant allottees. Thus, the allottees can move against the promoter even without any amount being due to them, provided that they meet the numerical threshold requirement under Section 7.

What constitutes a real estate project

As per the Code, the term “real estate project” (project) shall have the meaning assigned to it in clause (zn) of Section 2[9] of the Real Estate (Regulation and Development) Act, 2016 (RERA) which provides only a general overview of the scope of inclusion of the constituents of a project, leaving a grey area for interpretation.

Phases/towers/blocks in a project – separate individual projects

Section 3[10] of RERA deals with the mandatory requirements of registration and exemption from such registration to projects where the area of land proposed to be developed does not exceed five hundred square meters or the number of apartments proposed to be developed does not exceed eight, inclusive of all phases. However, the explanation to this section reads as follows:

For the purpose of this section, where the real estate project is to be developed in phases, every such phase shall be considered a stand-alone real estate project, and the promoter shall obtain registration under this Act for each phase separately.

The above explanation fails to confer a clear interpretation of how the phases should be included in the calculation of the numerical threshold of allottees.

The literal interpretation of the phrase “every phase shall be considered a stand-alone real estate project shall mean to apply only for the purpose of “this section, so as to analyse whether the registration of a project can be totally exempted from the purview of the Act.

Thus, it can be inferred from the literal interpretation and purpose of the section that each phase would not be considered as a stand-alone real estate project in calculation of the required numerical threshold of allottees. Hence, all the phases in a project shall be considered together for the purpose of calculating such threshold under Section 7 of the Code.

Further, to substantiate this interpretation, the observations deduced from some clauses under Section 4(2)[11] of the RERA which pertains to the details and documents required for filing an application for registration of a project can be referred. The relevant clauses are extracted below:

(d) the sanctioned plan, layout plan and specifications of the proposed project or the phase thereof, and the whole project as sanctioned by the competent authority;

Here, the clause refers to “the phase thereof, and the whole project which indicates that all the phases that are sanctioned by the competent authority to constitute a particular project may be considered as one project.

(f) the location details of the project, with clear demarcation of land dedicated for the project along with its boundaries including the latitude and longitude of the endpoints of the project;

Here, providing information relating to proper demarcation of land and boundaries to indicate the endpoints of a project would be helpful in ascertaining whether a certain building is a phase of a particular project or a different project in itself.

Example: Confusion may occur with regard to the demarcation between two projects by the same promoter, if the projects are adjacent to each other. How would one distinguish whether the said projects are two separate real estate projects or just phases of the same real estate project?

Thus, in the above scenario the location details provided by the promoter to the competent authority while registering the project as per Section 4(2)(f) would be considered.

Calculation of allottees for the numerical threshold

As per the Code, the term “allottee” shall have the meaning assigned to it under Section 2(d) of the RERA which states that an allottee is a person to whom a plot, apartment or building is allotted by sale, transfer or otherwise by the promoter of the project or any subsequent owner.

For calculating the total number of allottees, only the number of allotted units in a project shall be considered, irrespective of the number of units constructed.

In cases of joint allotments, wherein a single unit is allotted to more than one person, the joint allottees of that unit shall be considered to mean a single allottee.

Example: In a project constituting a total of twenty units, three individuals — A, B, and C book four units each. Here, the number of individual allottees is only three i.e. A, B, and C but the number of apartments allotted is twelve. Hence, for the purpose of calculation for threshold requirement, the total number of allottees shall be twelve.

Access to the information of allottees in a project

The Supreme Court, in Manish Kumar[12], reiterated the following provisions to address the concerns of homebuyers with regard to the asymmetry in availability of information.

Section 11(1)(b)[13] of the RERA, requires the promoter to upload quarterly updates of the number of apartments allotted on the RERA web page which can be referred to ascertain the total number of allottees till date. However, the Court failed to observe the fact that there is no obligation on the promoter to provide names and details of such allottees.

Section 11(4)(e) mandates the promoter to enable the formation of the association of allottees (association) within three months of the majority of units being allotted, in the absence of local laws, allowing the allottee to be privy to the details of fellow the allottees in the project. However, the Court overlooked the fact that there is no obligation on the promoter to form an association, in case the majority of units are not booked. Additionally, local laws of States like U.P. and Haryana require the formation of such association only after obtaining the completion certificate, thus slyly providing a loophole in favour of the promoters.

As a result, in the absence of such an association and where the promoter refuses to furnish the said information, the only redressal available to an allottee is to approach the real estate regulatory authority (authority). The authority using its discretionary powers under Section 37[14] may direct the promoter to furnish the required information.

Conclusion

The introduction of a numerical threshold for triggering the CIRP is a step in the right direction to curb the use of the Code as a debt recovery mechanism, thereby contradicting its primary objective of revival of an entity. This step ensures that the project does not collapse on the whims and fancies of a few disgruntled allottees.

However, the Court failed to address the major issue of unavailability of the necessary information faced by an allottee while meeting the newly imposed numerical threshold under the Code. This will pose a major hurdle in initiating the CIRP where the promoter is unable to meet his debt obligations and there is a dire need for an overhaul of the management.

The builders and the homebuyers are on the opposite sides of a weighing scale representing the real estate sector and the recently imposed thresholds have tilted the scales in favour of the builders. Thus, in order to create and maintain balance, it is necessary to implement regulations mandating the builders to publish the required information of allottees in the public domain.


Final year LLB student at ILS Law College, Pune.

†† Final year LLB student at ILS Law College, Pune.

[1] <http://www.scconline.com/DocumentLink/i9ibga9l>.

[2] <http://www.mca.gov.in/Ministry/pdf/Notification_28032020.pdf>.

[3] <http://www.scconline.com/DocumentLink/7uaUmcO6>.

[4] <https://ibbi.gov.in/uploads/legalframwork/d36301a7973451881e00492419012542.pdf>.

[5] (2019) 8 SCC 416

[6] <http://www.scconline.com/DocumentLink/K60PW5A6>.

[7] 2021 SCC OnLine SC 30

[8] 2021 SCC OnLine SC 30

[9] <http://www.scconline.com/DocumentLink/jXVqv4Tm>.

[10] <http://www.scconline.com/DocumentLink/1x31154O>.

[11] <http://www.scconline.com/DocumentLink/9l3Q426Y>.

[12] 2021 SCC OnLine SC 30

[13] <http://www.scconline.com/DocumentLink/OzOYWrYB>.

[14] <http://www.scconline.com/DocumentLink/om9ga1Y0>.

Case BriefsSupreme Court

Supreme Court: The 3-Judge Bench of Dr Dhananjaya Y Chandrachud, Indu Malhotra and Indira Banerjee, JJ., observed that

“Developer cannot compel the apartment buyers to be bound by the one-sided contractual terms contained in the Apartment Buyer‘s Agreement.”

Judgment passed by the National Consumer Disputes Redressal Commission is in Challenge

Appellant-Developer challenged the decision of NCDRC wherein refund of the amounts deposited by the Apartment Buyers was directed on account of inordinate delay in completing the construction and obtaining the Occupation Certificate.

Issues for Consideration:

  • Determination of the date from which the 42 months period for handing over possession is to be calculated under Clause 13.3, whether it would be from the date of issuance of the Fire NOC as contended by the Developer; or, from the date of sanction of the Building Plans, as contended by the Apartment Buyers;
  • Whether the terms of the Apartment Buyer‘s Agreement were one-sided, and the Apartment Buyers would not be bound by the same;
  • Whether the provisions of the Real Estate (Regulation and Development) Act, 2016 must be given primacy over the Consumer Protection Act, 1986;
  • Whether on account of the inordinate delay in handing over possession, the Apartment Buyers were entitled to terminate the agreement, and claim a refund of the amounts deposited with interest.

Analysis

Bench made a pointwise analysis of the instant matter wherein in the first issue, the point of controversy was whether the 42 months’ period is to be calculated from the date when the Fire NOC was granted by the authority concerned as contended by the Developer; or, the date on which the Building Plans were approved as contended by the Apartment Buyers.

In accordance with Section 15 of the Haryana Fire Safety Act, 2009, it is mandatory for a Builder/Developer to obtain the approval of the Fire Fighting Scheme conforming to the National Building Code of India, and obtain a ‘No objection Certificate’ before the commencement of construction.

Clause 13.3 of the Apartment Buyer’s Agreement provides that the 42 months’ period has to be calculated from the date of approval of Building Plans and/or fulfilment of the pre-conditions imposed thereunder.

Bench opined that it was a mandatory requirement under the Haryana Fire Safety Act, 2009 to obtain the Fire NOC before the commencement of construction activity. The said requirement was stipulated in the sanctioned Building Plans, as also in the Environment Clearance.

 The 42 months‘ period in Clause 13.3. of the Agreement for handing over possession of the apartments would be required to be computed from the date on which Fire NOC was issued, and not from the date of the Building Plans being sanctioned.

In the instant matter, there was a delay of approximately 7 months in obtaining the fire NOC by Developer.

Whether the terms of the Apartment Buyer’s Agreement are one-sided?

Court observed on perusal of the clauses mentioned in the Agreement that the said clauses were wholly one-sided terms of the Agreement Buyer’s Agreement, which were entirely loaded in favour of the Developer and against the allottee at every step.

For the said issue, Court held that the terms of the Apartment Buyer‘s Agreement are oppressive and wholly one-sided, and would constitute an unfair trade practice under the Consumer Protection Act, 1986.

Incorporation of one-sided and unreasonable clauses in the Apartment Buyer’s Agreement constitutes an unfair trade practice under Section 2(1)(r) of the Consumer Protection Act.

Whether primacy to be given to RERA over the Consumer Protection Act?

Bench expressed that this Court has upheld the applicability of provisions of Consumer Protection Act as an additional remedy, despite the existence of remedies under special statutes, including the Arbitration and Conciliation Act, 1996.

In the decision of  Emaar MGF Land Ltd. v. Aftab Singh, (2019) 12 SCC 751, it was held that the remedy under the Consumer Protection Act, 1986 is confined to the Complaint filed by a Consumer as defined by the Act, for defects and deficiency caused by the service provider.

In a recent decision of this Court in Imperia Structures Ltd. v. Anil Patni, (2020) 10 SCC 783, it was held that remedies under the Consumer Protection Act were in addition to the remedies available under special statutes. The absence of a bar under Section 79 of the RERA Act to the initiation of proceedings before a fora which is not a civil court, read with Section 88 of the RERA Act makes the position clear. Section 18 of the RERA Act specifies that the remedies are “without prejudice to any other remedy available”.

Whether the Apartment Buyers are entitled to terminate the Agreement or refund of the amount deposited with Delay Compensation?

Answering this issue, the Court categorised the buyer/allottees into two categories:

  • Apartment Buyers whose allotments fall in Phase 1 of the project comprised in Towers A6 to A10, B1 to B4, and C3 to C7, where the Developer has been granted occupation certificate, and offer of possession has been made
  • Apartment Buyers whose allotments fall in Phase 2 of the project, where the allotments are in Towers A1 to A5, B5 to B8, C8 to C11, where the Occupation Certificate has not been granted so far.

For category 1, it was held that such allottees (barring an exception) were obligated to take possession of the apartments, since the construction was completed, and possession offered on 28-06-2019, after the issuance of Occupation Certificate on 31-05-2019. The Developer is however obligated to pay Delay Compensation for the period of delay which has occurred from  27-11-2018 till the date of the offer of possession was made to the allottees.

So far category 2 is concerned, it was held that such allottees are entitled to refund of entire amount deposited by them, along with compensation and interest.

In view of the above discussion, civil appeals were disposed of. [Ireo Grace Realtech (P) Ltd. v. Abhishek Khanna, 2021 SCC OnLine SC 14, decided on 11-01-2021]

Case BriefsHigh Courts

Bombay High Court: S.C. Gupte, J., held that a real estate developer cannot rely on usual ‘force majeure’ clause to deny possession to homebuyers.

The instant appeal challenged the Order passed by RERA Appellate Tribunal, Mumbai.

Original Complaint that was filed by the respondent was:

Respondent who was a flat purchaser and who had claimed interest from the appellant for the delay in handing over of possession of the premises, for the period from the date of possession stipulated under the agreement till the date of actual possession.

Further, it was stated that Maharashtra Real Estate (Regulation and Development) Act, 2016 while accepting the respondent’s claim awarded interest from January 2018; the adjudicating authority gave six months extension on a unilateral basis to the appellant by way of a grace period.

When the above-stated matter was carried in appeal by the respondent-complainant in RERA Appellate Tribunal it was held that there was no specific clause in the agreement, entitling appellant/promoter to any grace period of six months or otherwise.

Appellate Tribunal observed that the date of delivery of possession of the premises stipulated under the agreement was on or before 30 June 2017 and, accordingly, directed payment of interest from 01-07-2017 till the date of delivery of possession of the premises.

Appellant’s Counsel submitted that the agreement referred to above contained a clause that the possession date was subject inter alia to any cause beyond the control of the Developer including any order of the Centre, Local Authority or Body or due to delay in issuing completion certificate or occupation certificate by the Authorities.

It was noted from the above contention that the said clause was nothing but an ordinary force majeure clause, where the promoter cannot be faulted for the delay in delivery of possession, if such delay is caused by any reason beyond his control.

Force Majeure clause doesn’t provide for any grace period to the promoter.

Bench while considering the facts of the case stated that it is apparent from the record that the adjudicating authority was not impressed by any of the reasons submitted by the appellant towards the justification for the delay.

Adding to the above, Court found that the order of the adjudicating authority proceeded on the basis that even if facts pointed out by the Promoter were to be taken into consideration as justification for the delay, a six months’ grace period could be granted for delivery of possession to the Promoter.

“…neither the Appellate Tribunal nor the adjudicating authority found in favour of the Appellant/Promoter insofar as its case for justification of the delay was concerned.”

Hence, a grace period of six months considered by adjudicating authority was nothing but an ad-hoc measure and was rightly not accepted by the Appellate Tribunal.

Accordingly, the substantial question of law arose from Appellate Tribunal’s impugned order.

Therefore, the second appeal was dismissed. [Westin Developers (P) Ltd. v. Raymond Alexis Nunes, 2020 SCC OnLine Bom 3912, decided on 04-12-2020]


Advocates who appeared for the matter:

Dakshesh Vyas a/w Dominic D’Souza and Sumit Kothari i/b. Agrud Partners, for Appellant/Applicant.

Huzefa Nasikwala a/w Sujit S. Mashal i/b. Nasikwala Law Office, for Respondent.

Case BriefsSupreme Court Roundups


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Case BriefsSupreme Court

Supreme Court: The bench of UU Lalit and Vineet Saran, JJ has held that the Real Estate (Regulation and Development) Act, 2016 (RERA Act) does not bar the initiation of proceedings by allottees against the builders under the Consumer Protection Act, 1986.

“It is true that some special authorities are created under the RERA Act for the regulation and promotion of the real estate sector and the issues concerning a registered project are specifically entrusted to functionaries under the RERA Act. But for the present purposes, we must go by the purport of Section 18 of the RERA Act. Since it gives a right “without prejudice to any other remedy available’, in effect, such other remedy is acknowledged and saved subject always to the applicability of Section 79.”


Background of the Case


The said decision of the Court came in the matter relating of delay in handing over the possession of flats to buyers by the developer. The apartments were booked by the Complainants in 2011-2012 and the Builder Buyer Agreements were entered into in November, 2013. As promised, the construction should have been completed in 42 months. The period had expired well before the Project was registered under the provisions of the RERA Act. Even after four years there were no signs of the Project getting completed and hence, a complaint was filed by the Buyers.


RERA Act vis-à-vis CP Act: Statutory Analysis


The Court discussed the following provisions for the purpose of deciding the case at hand:

  • Section 79 of the RERA Act bars jurisdiction of a Civil Court to entertain any suit or proceeding in respect of any matter which the Authority or the adjudicating officer or the Appellate Tribunal is empowered under the RERA Act to determine.
  • Section 88 specifies that the provisions of the RERA Act would be in addition to and not in derogation of the provisions of any other law.
  • Section 89 provides that the provisions of the RERA Act shall have effect notwithstanding anything inconsistent contained in any other law for the time being in force.

The Court noticed that an allottee placed in circumstances similar to that of the Complainants, could have initiated following proceedings before the RERA Act came into force.

A) If he satisfied the requirements of being a “consumer” under the CP Act, he could have initiated proceedings under the CP Act in addition to normal civil remedies.

B) However, if he did not fulfil the requirements of being a “consumer”, he could initiate and avail only normal civil remedies.

C) If the agreement with the developer or the builder provided for arbitration:-

i) in cases covered under Clause ‘B’ hereinabove, he could initiate or could be called upon to invoke the remedies in arbitration.

ii) in cases covered under Clause ‘A’ hereinabove, in accordance with law laid down in Emaar MGF Ltd v. Aftab Singh, (2019) 12 SCC 751, he could still choose to proceed under the CP Act.

The Court noticed that on plain reading of Section 79 of the RERA Act, an allottee described in category (B) stated hereinabove, would stand barred from invoking the jurisdiction of a Civil Court.

“The absence of bar under Section 79 to the initiation of proceedings before a fora which cannot be called a Civil Court and express saving under Section 88 of the RERA Act, make the position quite clear.”

To answer the question whether the Commission or Forum under the CP Act is a civil court or not, the Court referred to the decision in Malay Kumar Ganguli v. Dr. Sukumar Mukherjee, (2009) 9 SCC 221 , where it was held,

“The proceedings before the National Commission are although judicial proceedings, but at the same time it is not a civil court within the meaning of the provisions of the Code of Civil Procedure. It may have all the trappings of the civil court but yet it cannot be called a civil court.”

Hence, Section 79 of the RERA Act does not in any way bar the Commission or Forum under the provisions of the CP Act to entertain any complaint.

The Court further discussed the proviso to Section 71(1) of the RERA Act which entitles a complainant who had initiated proceedings under the CP Act before the RERA Act came into force, to withdraw the proceedings under the CP Act with the permission of the Forum or Commission and file an appropriate application before the adjudicating officer under the RERA Act. It noticed,

“The proviso thus gives a right or an option to the concerned complainant but does not statutorily force him to withdraw such complaint nor do the provisions of the RERA Act create any mechanism for transfer of such pending proceedings to authorities under the RERA Act. As against that the mandate in Section 12(4) of the CP Act to the contrary is quite significant.”

It was held that insofar as cases where such proceedings under the CP Act are initiated after the provisions of the RERA Act came into force, there is nothing in the RERA Act which bars such initiation. Further, Section 18 itself specifies that the remedy under said Section is “without prejudice to any other remedy available”.

“Thus, the parliamentary intent is clear that a choice or discretion is given to the allottee whether he wishes to initiate appropriate proceedings under the CP Act or file an application under the RERA Act.”

[Imperia Structures v. Anil Patni,  2020 SCC OnLine SC 894, decided on 02.11.2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Dipankar Datta, CJ and M.S. Karnik, J., disposed of a matter wherein the orders of Maharashtra Real Estate Regulatory Authority were in challenge.

Orders passed by Maharashtra Real Estate Regulatory Authority on 2nd April, 2020 and 18th May, 2020 have been challenged in the present public interest litigation at the instance of a citizen for the benefit of home buyers.

Petitioner submits that the impugned orders suspend certain provisions of the Real Estate (Regulation and Development) Act, 2016 and are arbitrary and illegal.

Real Estate (Regulation and Development) Act, 2016 is a complete code in itself dealing with regulation and promotion of the real estate sector, protection of the interests of the consumers and establishment of adjudicatory mechanism for speedy dispute redressal.

Section 44 of the said Act provides a remedy of appeal to any person against any direction or order or decision of the RERA before an Appellate Tribunal.

In the above view of the matter, home buyers for whose benefit the petitioner has instituted present PIL are not left without a remedy. If indeed any home buyer is aggrieved by the order or direction of the respondent no 1, he/she/it is free to approach the appellate forum.

Thus, Court disposed of the present PIL. [Sagar Sarjerao Nikam v. Maharashtra Real Estate Regulatory Authority, 2020 SCC OnLine Bom 728 , decided on 26-06-2020]


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MAHARera declared COVID-19 impacted period from March, 15 to September 14 as force majeure under the provisions of Real Estate (Regulation and Development) Act. 

Case BriefsHigh Courts

Bombay High Court: While deciding the petition which challenged the validity of the Order passed by the Maharashtra Real Estate Regulatory Authority wherein it had defined the term ‘co-promoter’ as the same was not defined in the Real Estate (Regulation and Development) Act, 2016, the Division Bench of Naresh H. Patil and R.G. Ketkar, JJ., allowed the petitioner to withdraw the instant petition after the Office of Maharashtra Real Estate Regulatory Authority withdrew its impugned Order dated 11.05.2017 which defined ‘co-promoter’.

On 11.05.2017, the Secretary, Maharashtra Real Estate Regulatory Authority had passed an Order in exercise of the powers vested in the Authority under Regulation 38 of the Maharashtra Real Estate Regulatory Authority (General) Regulations 2017. Thus ‘co-promoter’ was defined as “person(s) or organization(s) who, under any agreement or arrangement with the promoter of a Real Estate Project is allotted or entitled to a share of total revenue generated from sale of apartments or share of the total area developed in the real estate project. The liabilities of such Co-Promoters shall be as per the agreement or arrangement with the Promoters, however for withdrawal from designated Bank Account, they shall be at par with the Promoter of the Real Estate Project.”

The counsel for the petitioner argued that RERA defines ‘promoter’ under Section 2(zk) and Regulation 38 does not really empower the Authority to create a new term and notify the same in absence of statutory provisions under RERA. As per the counsel, Regulation 38 only empowers the Authority to issue orders ensuring the proper implementation of the Act and not to interpret the Act. Meanwhile the Secretary of the Authority submitted an affidavit before that Court that the impugned Order was passed only as to clarify the definition of ‘promoter’ and to bring about more transparency in the process of registration, ease of maintenance of accounts etc.

The counsel for the State and Authority put forth before the Court that the impugned Order has been thus withdrawn, and the same shall be replaced by an appropriate Order as expeditiously as possible with effect from the same date i.e. 11.05.2017. Not going into the averments made by the respondents in their affidavits, the Court accepted the request of the respondents to dispose off the petition as the grievance of the petitioner had been taken care of. [Ismail Ibrahim Patel v. State of Maharashtra,  2017 SCC OnLine Bom 9132, decided on 14.11.2017]