Bombay High Court
Hubtown Limited And Anr vs Hubtown Solaris Maintenance Private ... on 9 May, 2024
Author: Bharati Dangre
Bench: Bharati Dangre
2024:BHC-OS:8337
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO.16519 OF 2021
IN
SUIT NO.96 OF 2023
Hubtown Limited .. Applicant
In the matter between
Hubtown Solaris Co-op Soc. Ltd. .. Plaintiff
Versus
MCGM & Ors. .. Defendants
...
Sr. Advocate Chetan Kapadia a/w Yuvraj Singh, Ankoosh Menta,
Srinivas Chatti, Pragya Chandak, Alok Agrawal i/b Cyril
Amarchand Mangaldas, for the Plaintiff.
Ms.K.H. Mastakar for defendant nos. 1 to 4 (BMC)
Mr. Abhijit P Kulkarni, Gaurav Shahane, Sweta Shah for
defendant nos.7 and 8.
Sr. Advocate Ashish Kamat, Simantini Mohite, Nishit Dhruva,
Niyati Merchant, Asma Khopekar i/b MDP & Partners for the
defendant nos.5 & 6.
CORAM: BHARATI DANGRE, J.
DATED : 9th MAY, 2024 P.C:-
1 The present application is filed by the applicant (original defendant nos.5 and 6) in a Suit for the specific performance filed by the Plaintiff, seeking a direction against defendant no.5 to hand over possession of the Society Office of the building 'Hubtown Solaris', Andheri (East), Mumbai, the Ashish ::: Uploaded on - 22/05/2024 ::: Downloaded on - 30/05/2024 03:57:54 ::: 2/26 IA L 1651-21.doc records and audited accounts pertaining to its maintenance charges and all amounts received by defendant no.5 in respect of the said building and for other reliefs being sought against defendant nos.5, 6 and 9 who are prayed to be injuncted from obstructing, interfering, or harassing the members of the plaintiff its members, its employees agents and servants from using the lifts, robotic car parking, and other facilities and utilities in the building.
A declaration is also sought against the defendant no.5, that its act violating the agreement with its members by partly constructing on 6th floor and 13th floor of the plaintiffs building is illegal and is in gross violation of the provisions of Section 7 and 7A of the Maharashtra Ownership of Flats (Regulation of the promotion of construction, sale, management and transfer) Act, 1963 (for short, "MOFA"). In addition, a restrain order is sought against defendant no.5 from selling, transferring, allotting or in any manner creating third party rights in respect of the unit on the 6th floor and part 13th and 14th floor of 'Hubtown Solaris'. In addition, damages to the claim of Rs.100 Crores are prayed by the plaintiff against the defendant no.5 2 It is in this Suit, the present application is filed under Order 7 Rule 11 of the Code of Civil Procedure 1908 seeking rejection of the plaint as being barred by Section 79 of the Real Estate (Regulation and Development Act, 2016) (RERA).
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3 Heard learned Senior Counsel Mr. Ashish Kamat for
the applicant (Original Defendant nos. 5 and 6) and learned senior counsel Mr. Chetan Kapadia for the plaintiff (defendant in the application), Hubtown Solaris Premises Cooperative Society Ltd.
Before I appreciate the rival contentions in the application seeking rejection of the plaint, a brief background of the claim of the plaintiff as against the defendant, who has taken out the application must be cursorily looked at.
The Suit is filed by the Plaintiff, a cooperative Society comprising of 285 members, being registered with Maharashtra Co-operative Societies Act, 1960 whereas the defendant no.5 is the company incorporated under the Companies Act, 1956 and engaged in business of acquiring land and/or entering into re-development agreements under the SRA scheme.
The defendant no.5 is also the developer of SRA scheme of which the plaintiff's building is one of the component, thereof comprising of various commercial units.
Defendant no.6 is a company formed by defendant no.5, to act as maintenance agency for the unit purchaser of building, Hubtown Solaris.
Upon an understanding arrived between various members of the plaintiff and the defendant no.5, who was Ashish ::: Uploaded on - 22/05/2024 ::: Downloaded on - 30/05/2024 03:57:54 ::: 4/26 IA L 1651-21.doc appointed as a developer for developing various lands declared as slums under the SRA scheme, LOI was granted in its favour for construction of the entire layout comprising of rehab component as well as the saleable one.
The defendant no.5 proposed to have the sale component of 12,944.44 sq mtr from Heeranagar and Shivajinagar, a scheme implemented by defendant no.5 and the final plan was approved comprising of 14 rehabilitation buildings and free sale buildings with various amenities.
The layout plan of the property was sub divided into sub-plots on which rehab as well as sale component buildings were constructed and once such plot, which is B/Commercial one admeasuring 6827.11 sq mtr got subdivided due to D.P. Road and the defendant no.5 proposed to construct sale commercial building, by name 'Hubtown Solaris' which was to comprise of two basements, plus 6 level ground and 13 upper floors.
It is the case of the plaintiff that the unit purchasers at the time of the execution of the agreement were shown an approved plan for construction of 13 upper floors and after due negotiations with the unit purchasers, now the members of the plaintiff society, agreement was entered with the defendant, which reflected construction of a building of 13 floors along with 2 basements with 6 levels plus ground floor.
The society members were informed that the
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agreement were entered into as per the guidelines laid down in MOFA Act and accordingly the Society would be formed and necessary conveyance would be granted, as soon as the construction is complete.
4 When the defendant no.5 started giving possession to the members, in the year 2012, the occupation certificate of remaining 9th to 12th floors and the balance 13th floor not being issued, an assurance was given that upon the occupation certificate being obtained the necessary formality with regard to the handing over of the building shall be undertaken.
The Plaintiff Society was formed on 18/06/2018 and upon its formation, the plaintiff addressed a letter to the Chief Promoter as well as defendant no.5 for handing over of the documents, accounts and other information pertaining to 'Hubtown Solaris' but despite heap of correspondence, the Society office, the records maintained, accounts, and other documents are not handed over to the plaintiff by defendant nos.5 and 6 and since defendant no.5, despite receipt of occupation certificate is alleged to have misappropriated funds by levying and recovering huge amount of money as service tax from the unit purchaser and having failed to pay the same to the government, the plaintiff society is aggrieved.
It is further aggrieved by the act of the defendant no.5 in not obtaining the full Occupation Certificate and execution of the lease deed in favour of the plaintiff, with several Ashish ::: Uploaded on - 22/05/2024 ::: Downloaded on - 30/05/2024 03:57:54 ::: 6/26 IA L 1651-21.doc other grievances as regards deficiency in the amenities provided.
5 The defendant no.5 had registered the project with Maharashtra Real Estate Regulatory Authority and the plaintiff had filed a complaint before the Authority for appropriate action against defendant no.5 however, the said Authority is empowered to exercise limited jurisdiction, restricting it to whether there is any violation of the Real Estate Regulation Act of 2016 and not empowered to direct and issue orders against entities other than defendant no.5 and to recover amounts paid by the plaintiff and collected on behalf of defendant no.5, and since the issue has arisen out of the MOFA Act, the plaintiff has instituted the Suit with the reliefs to which I have made a reference as above.
6 It is in this Suit the defendant nos.5 and 6, have filed an application for its dismissal, on the primary ground that the plaint deserve rejection since the Suit appears from the statement in the plaint to be barred by law.
It is pleaded in the application that the plaintiff has filed RERA complaint against defendant no.5 and in the said complaint it has alleged several non-compliances and the reliefs include interregnum directions to be issued to the defendant no.5 restraining it form carrying out further construction of the building which is alleged to be illegal, directing it to deposit property tax, handing over of the necessary documents to the plaintiff and restraining it from collecting maintenance charges Ashish ::: Uploaded on - 22/05/2024 ::: Downloaded on - 30/05/2024 03:57:54 ::: 7/26 IA L 1651-21.doc etc.. It is alleged these are the very reliefs which are sought in the present Suit and filing of the Suit is justified, on the ground that the reliefs therein are sought against defendant no.5 as well as third parties and the authorities under the RERA, will exercise limited jurisdiction and no directions can be issued by it against the entities other than defendant no.5.
Further since compensation is also claimed, is the another reason offered for filing of the Suit.
7 It is the case in the application, that the plaintiff has not being able to justify filing of the Suit and about the jurisdiction of the Court to try and adjudicate the same, particularly when the jurisdiction in regard to this subject, is vested with the authorities under the RERA. Section 79 of the RERA Act is invoked to argue that the Civil Courts are barred from entertaining any Suit in respect of a matter which the authorities under the RERA are empowered to determine.
8 Learned Senior Counsel Mr. Kamat has assertively argued, that the issues raised in the Suit fall within the ambit of RERA and the Authority/adjudicating officer established under RERA are vested with jurisdiction to adjudicate the same and by filing the RERA complaint before the Authority, the plaintiff has submitted itself to the jurisdiction of the Authority empowered to adjudicate and decide upon the issue in the complaint, which are identical to the reliefs prayed for in the Suit.
Mr. Kamat would submit that in view of Section 79 of the Ashish ::: Uploaded on - 22/05/2024 ::: Downloaded on - 30/05/2024 03:57:54 ::: 8/26 IA L 1651-21.doc RERA, this Court does not have jurisdiction to adjudicate the above Suit, and hence the plaint deserve a rejection under order 7 Rule 11 of of the Code of Civil Procedure, 1908 (for short, "CPC"). According to the learned senior counsel, since the issue of jurisdiction goes to the root of the matter and ought to be decided prior to adjudicating upon the interim application, the proceedings in the Suit shall be stayed pending the hearing of the application.
He would submit that clever drafting and on creating illusion of cause of action are not permitted in law and the ritual of creating an illusion in the plaint must be certainly unrevealed and exposed by the Court while deciding an application under Order 7 Rule 11 of CPC and as according to him, what is prayed in the plaint, is exactly what is claimed in the application filed under Section 31 of the Real Estate (Regulation and Development) Act 2016 (for short, "Act of 2016").
He has placed before me a comparative chart of the relief sought in the plaint and the corresponding reliefs in the application, alongwith the possible exercise of the power,by the RERA Authority under the Act of 2016.
The learned Senior counsel would invoke the doctrine of election and he assert that, once the plaintiff has elected to follow its remedy with the Authority under the RERA, recourse to the proceedings in form of the Suit, must be frowned upon.
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He would place reliance upon the recent decision of division bench of this Court in case Nilkamal Realtors Suburban Pvt Ltd and anr vs Union of India and ors, (2017) SCC online Bom 9302 and a decision of learned Single Judge in case of Lavasa Corporation Ltd vs Jitendra Jagdish Tulsiani and anr (2018) SCC online Bom 2074.
9 Per contra, the learned counsel Mr Kapadia would urge that the jurisdiction of this Court to entertain the present Suit is not barred, under Section 79 of the RERA as the present Suit is filed for enforcing the obligations arising under the MOFA Act. He would submit that Section 79 of the RERA bars the jurisdiction of the Civil Court only in respect of matters, which Authority or the Adjudicating Officer or Appellate Tribunal is empowered by or under the Act of 2016 to determine and RERA, according to him, does not provide for enforcing obligations under MOFA. According to him, remedy under Section 31 of the Act of 2016 is an additional remedy and not the sole remedy as MOFA has not been repealed by RERA, restricted to violation or contravention of the provisions of the Act or Rules against any Promoter and continue to be in operation with full force.
According to Mr. Kapadia the present Suit is filed by the plaintiff claiming reliefs against various statutory authorities such as Municipal Corporation of Greater Mumbai (MCGM) and Slum Rehabilitation Authority (SRA), raising the challenge to Ashish ::: Uploaded on - 22/05/2024 ::: Downloaded on - 30/05/2024 03:57:54 ::: 10/26 IA L 1651-21.doc the revised letter of intent and all further permissions granted in respect of additional construction to be carried out on 6 th (part) an 13th (part) and 14 floor and further seeking directions against MCGM from providing water connection to the 9 th and 13th floor of the plaintiff's building. According to him Section 3 of the RERA provides for filing complaint only against promoter allottee or real estate agent before the Real Estate Authority and any prayers, reliefs against the persons other than promoter allottee or real estate agent cannot be granted by RERA Authority.
According to him different authorities are constituted under the RERA i.e. Authority and Adjudicating Officer whose powers are distinct and these authorities can entertain complaints only in respect of violation and contravention of RERA, its rules and regulations against the promoter allottee or real estate agent as contemplated under Section 31 of the Act but the RERA authorities are not empowered to entertain complaint against third parties. Further according to him the declaratory reliefs claimed in the Suit against SRA and other authorities cannot be granted by RERA and it is only the civil court which can entertain the Suit and grant the reliefs.
By relying upon the decision in case of Kesari Realty Pvt. Ltd. Vs. Turf Estate, Joint Venture LLP & Ors., he would submit that as regards Section 79 of the RERA, the test would be whether the authorities under Act of 2016 are Ashish ::: Uploaded on - 22/05/2024 ::: Downloaded on - 30/05/2024 03:57:54 ::: 11/26 IA L 1651-21.doc conferred with exclusive jurisdiction over the matter in question and the observation in the said decision indicate that the remedies available to the allottee under Section 18 of RERA are without prejudice to any other remedy available in law.
He would also invite my attention to Section 88 of the RERA Act which has clarified that, the provisions of the Act are in addition to and not in derogation of the provisions of any other law and according to Mr. Kapadia, a conjoint reading of the provisions would justify an inference that Section 18 of the RERA is not the sole repository of the rights and remedies of the allottee, where the promoter threatens to abandon a project and these remedies are without prejudice to any other remedy available in law. By relying upon a general principle, were two remedies are available under law one of them should not be taken as operating in derogation of other, he would place reliance upon the decision of the Apex Court in case of Bank of India vs. Lakshmini Das and ors (2003) 3 SCC 640 as well as a decision in case of Dhannalal vs. Kalavati Bai and ors (2002) 6 SCC 16 to buttress his submission that the plaintiff is the dominus litus and in case of conflict of jurisdiction choice ought to lie with the plaintiff, as he can choose the forum best suited to him unless by rule of law there is exclusion to access another forum.
Apart from this, Mr. Kapadia has also argued that as far as 6th floor is concerned it is not registered with RERA Ashish ::: Uploaded on - 22/05/2024 ::: Downloaded on - 30/05/2024 03:57:54 ::: 12/26 IA L 1651-21.doc website and therefore, the grievance in respect of the same would not lie within the purview of the authorities as it is trite position of law that RERA does not apply to projects which do not require registration or the phase of the project which has already being completed and which do not require registration. He would place reliance upon the decision in case of Rukmini Beverage Pvt. Ltd. vs. Sreeniwas Cotton Mills Ltd., (WP No.72 of 2021) and hence in short his submission is that the bar do not operate in totality and there is no prohibition in entertaining the reliefs in the Suit, all of the reliefs are not covered by the Act of 2016.
10 On hearing the respective counsel and on perusal of the plaint as well as interim application, it is evident that Hubtown Ltd Mumbai defendant no.5, was allotted the Letter of Intent (LOI) dated 1/12/1998 for re-development of plot of land, as per DCR 33(10). The LOI was revised in 2004 to implement a slum rehabilitation scheme and the IOD and the commencement certificate were received by defendant no.5 in the year 2005, whereas the layout was sanctioned in the year 2009 for constructing 14 rehab buildings and 3 sale buildings and between 2009 and 2012 the buildings were constructed. In September, 2012, the defendant is alleged to have received part occupation certificate in respect of the building 'Hubtown Solaris' and pursuant to which defendant no.5 entered into agreement for sale with the purchaser of units, these agreements being compliant Ashish ::: Uploaded on - 22/05/2024 ::: Downloaded on - 30/05/2024 03:57:54 ::: 13/26 IA L 1651-21.doc with Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management and transfer) Act, 1963 (MOFA).
The Real Estate (Regulation and Development) Act, 2016 (RERA) came into force and it is upon coming into force of the enactment, when certain complaints are lodged by the plaintiff society with the Authority, alleging non-compliance of the RERA provisions, and since it has approached this Court by filing the present Suit, claiming that the defendant had failed and refused to hand over Society's office and is interfering with the enjoyment of the property and alleging that it is engaged in illegal construction on 6th, 13th and 14th floor of the building which is contrary to its MOFA Rights, an objection is raised that the Suit is not maintainable in view of specific bar contained in RERA.
In order to appreciate this submission, when the plaint with its reliefs sought is carefully perused, it appear that the broad head of the grievance raised by the plaintiff Society against the defendant no.5, is its failure to hand over the Society office, documents and failure to pay the Government, despite collecting exorbitant maintenance charges. The relief is premised on an assertion that the defendant no.5 has avoided to hand over Society's Office to the plaintiff though it has obtained OC of 13 th floor on 13/11/2019 and there is no reason why the necessary compliances shall not be ensured. It is also alleged that the Ashish ::: Uploaded on - 22/05/2024 ::: Downloaded on - 30/05/2024 03:57:54 ::: 14/26 IA L 1651-21.doc action of defendant no.5 is contrary to the obligations, which the Promoter is bound to discharge under the MOFA Sale Agreement. Apart from this, it is the claim in the plaint that huge sum are collected towards maintenance of property tax from the Society but the defendant no.5 has misappropriated the sum by not paying it to the Government and not only this the exorbitant maintenance has been collected, without offering clarity, as to how much is paid towards Municipal taxes etc., as amount is outstanding towards installation of lift and its maintenance.
11 In light of the prayers in the Suit, the stand adopted by the defendant is, this Court has no jurisdiction in view of the expressed bar contained in Section 79 of RERA which prohibit the Civil Court to entertain any Suit or proceedings in respect of any matter, which the Authority or the Adjudicating Authority or the Appellate Tribunal under RERA is empowered to determine and Mr. Kamat has urged that the reliefs sought in the plaint, deserve consideration under the provisions of RERA in the following manner.
RERA PROVISIONS WHICH GRANT AUTHORITY TO RERA AUTHORITY OVER RELIEFS PRAYED FOR IN THE PLAINT Sr.No. Prayers in Plaint Applicable provisions of RERA and corresponding remedy thereunder
1. (a)-(e) Grievances qua these prayers are in respect of (hand over society office, breaches under Section 11(4)(a) & (d), Section documents and restrain from 17, Section 19(3) & (6) of RERA Act for which, harassment/obstruction of the RERA Authority can take cognizance, management and issuing adjudicate and pass directions under Sections 7, maintenance bills) 31, 35, 36, 37, 38 and 40(2) of RERA Act.
2. (f)-(g), (i) Plaintiff is challenging the construction Ashish ::: Uploaded on - 22/05/2024 ::: Downloaded on - 30/05/2024 03:57:54 ::: 15/26 IA L 1651-21.doc (Permissions for permissions issued by SRA for construction construction granted by under a Slum Scheme, and therefore, no reliefs SRA) can be sought in respect of the same before the civil court in view of the bar contained under S.42 of the Slum Act.
The Plaintiff's remedy to challenge LOI issued by the CEO, SRA lies before the AGRC as per Notification dated 8.3.2017 issued by the Housing Department, State Government.
Without prejudice to the above, even under RERA, the grievance of the Plaintiff qua construction relates to breach of Section 14 of RERA, and the RERA Authority can take cognizance, adjudicate and pass directions under S.7, 31, 35, 36, 37, 38 and 40(2) of RERA Act.
3. (h), (j) to (m) Grievances qua these prayers are in respect of (additional construction and breaches under Section 14 of RERA for which, sale of units therein) the RERA Authority can take cognizance, adjudicate and pass directions under Sections 7, 8, 31, 35, 36, 37, 38 and 40(2) of RERA Act.
4. (n) Grievances qua these prayers are in respect of (Full OC) breaches under Section 11(4) (d),4(c) and 17 of RERA Act, for which, the RERA Authority can take cognizance, adjudicate and pass directions under Sections 7, 8, 31, 35, 36, 37, 38 and 40(2) of RERA Act.
5. (o)-(p) Grievances qua these prayers are in respect of (property tax and water breaches under Sections 11(4)(a) &(d), 4(g) and connection) 19(6) of RERA Act, for which, the RERA Authority can take cognizance, adjudicate and pass directions under Sections 7, 18(3), 31, 35, 36, 37, 38 and 40(2) of RERA Act.
6. (q) The RERA Authority can take cognizance, (damages) adjudicate and pass directions under Sections 18(3) and 71 of RERA Act for compensation.
12 It is not in dispute that the real estate sector, which is now regulated by the Real Estate (Regulation & Development) , Act, which is a self contained Code and it contain numerous provisions, with numerous remedies being made available, upon its violation and this include remedy like claim for compensation, imposition of penalty etc. Ashish ::: Uploaded on - 22/05/2024 ::: Downloaded on - 30/05/2024 03:57:54 ::: 16/26 IA L 1651-21.doc RERA applies to real estate projects and to promoters, builders, allottees (buyers) and real estate agents, thus covering all the real estate projects, which would cover development of a building or a building consisting of apartment or converting an existing building or part thereof into an apartment or the development of land into plots or apartments.
RERA seeks to remedy the draw backs of the existing regulatory frame work, in the country by establishing a 'Real Estate Regulatory Authority' to ensure that the transactions between promoters and buyers are governed by the twin norms of the efficiency and transparency. It seeks to bring about accountability towards consumer and aim at significantly reducing fraud, delay and high transaction cost.
While imposing duties and responsibilities on promoters and purchasers, RERA seeks to achieve its objective by ensuring transparency of contractual conditions; symmetry of information between promoters and purchasers; threshold standards of standardization of accountability and a fast track dispute resolution mechanism. RERA mandates registration of real estate projects and its public disclosure by the promoter.
13 The statement of objects and reasons, of the enactment clearly highlight the necessity of the Special Legislation, realizing that over the past few decades, the demand for housing has increased manifold and in-spite of governments efforts through various scheme it has not been able to cope up Ashish ::: Uploaded on - 22/05/2024 ::: Downloaded on - 30/05/2024 03:57:54 ::: 17/26 IA L 1651-21.doc with the increasing demands.
The Select Committee, which was appointed to propound upon necessity of such a legislation highlighted the instances of stand alone projects, where the consumers were fleeced by the unscrupulous promoters and the consumers having invested their hard earned money for their dream houses, which turned out to be the nightmare, leaving them to run from pillar to post, for either getting possession of their apartment or refund of their money back and fighting cases in the Courts.
The long title of the legislation therefore, clearly describe the special statute, being an Act to establish the real estate regulatory authority for regulation and promotion of the real estate sector and to ensure sale of plot, apartment or building, as the case may be or sale of a real estate project, in an efficient and transparent manner and to protect the interest of the consumers in the real estate sector and to provide a mechanism for speedy dispute redressal.
The Act of 2016 therefore, undisputedly is a complete Code in itself requiring registration of the projects and thereby fixing accountability on the promoter for its timely completion along with establishment of the authority for the purpose of dealing with the non-compliance of the timelines and the obligations to be discharged by the promoters.
14 Section 79 of the Act of 1996 creates bar of jurisdiction but at the same time what is important to note are Ashish ::: Uploaded on - 22/05/2024 ::: Downloaded on - 30/05/2024 03:57:54 ::: 18/26 IA L 1651-21.doc two other provisions in the same enactment in form of Section 88 and Section 89 which reads thus:
"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."
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."
15 In Forum for People's Collective Efforts (FPCE vs. State of West Bengal and anr (2021) 8 SCC 599, the provision in Section 88 came up for consideration on being pitched against a State legislation i.e. West Bengal Housing Industry Regulation Act and in paragraph no.177 of the law report, it is categorically held that Section 88 of the RERA envisaged that its provisions would be in addition to and not in derogation of other laws for the time being in force and this provision convey that Parliament has not intended to occupy the whole field, so as to preclude altogether, exercise of legislative authority whether under the Central or the State enactments. It is further held that the effect of Section 88 is to ensure that remedies, which are available under Consumer legislation including the Consumers Protection Act, 2019 are not ousted as a consequence of the operation of RERA and Section 88 does not exclude recourse to other remedies by cognate legislation.
16 The attempt of Mr. Kamat is to demonstrate that the
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authority under RERA can also adjudicate upon disputes relating to allegations of violation of MOFA though he would concede to the fact that MOFA still continue as a State Legislation, despite an attempt in the past to consider its repeal.
17 On thoughtful consideration of the scheme contained in RERA it is obvious that RERA is an Umbrella statute for the Real estate development and nonetheless the scope of the statute is to cover all the real estate projects, however when the relief sought in the plaint are carefully perused which pertain to the violation of MOFA rights, I do not find any provision, with sufficient potential to deal with violation of MOFA rights.
The perusal of the complaint filed before RERA authority by the plaintiff is limited to the lapses under RERA, which seek to regulate the Real estate field and since MOFA has not been repealed, a feeble attempt by Mr. Kamat to rely upon Section 14 of the RERA Act fail to persuade me to accept his contention that, the desired relief can be granted. On comparison of Section 7 and 7 A of the MOFA Act, being juxtaposed against Section 14 it is obvious that the two provisions are different in its scope.
The MOFA Act of 1963, is enacted to regulate the promotion of the construction, sale and management and the transfer of flats on ownership basis in the State of Maharashtra and in Section 3 it has highlighted the General Liabilities of the promoter, who intend to construct a block or building of flats, Ashish ::: Uploaded on - 22/05/2024 ::: Downloaded on - 30/05/2024 03:57:54 ::: 20/26 IA L 1651-21.doc all or some of which are to be taken or taken or are taken on ownership basis and it is imperative for the promoter to make full and true disclosure of his title to the land on which the flats are constructed, any encumbrances on such land, disclose the specifications of the building built or to be built on the land along with the plans and specifications having been approved by the local authority as well as disclose the nature of fixtures fittings, and amenities provided or to be provided. In addition it is also imperative for the developer to specify in writing the date by which the possession of the flat is to be handed over and prepare and maintain a list of flats to be allotted or to be allotted and display or keep all the documents, plans, and specifications (or copies thereof) at the site and permit inspection thereof to persons intending to take such flats. If the flats are advertised for sale, the promoter is duty bound to offer the details of the extent of carpet area of the flat, its price, nature, extent and description of common areas and facilities etc. Section 7 of the MOFA impose restrictions on the promoter in making any alterations or additions, after the plans and specifications of the buildings are approved by the local authority without consent of the persons, who have agreed to take the flats and Section 7A offers a clarification as regards the timeline when the obligation comes into force, the provision being added by way of amendment.
In contrast when Section 14 of the RERA is carefully Ashish ::: Uploaded on - 22/05/2024 ::: Downloaded on - 30/05/2024 03:57:54 ::: 21/26 IA L 1651-21.doc perused, though it at the first blush may appear to be somehow similar as Section 7 of MOFA, as it provides adherence to sanctioned plans and project specifications by the promoter, it differs from Section 7, which contain a provision for rectification of the defects on being noticed within 3 years, wherever it is possible for the promoter, to rectify the unauthorized change or any defect in the building or the material used without further charge to the persons who have agreed to take the flats and in other cases, where it is not permissible, the persons shall be entitled to receive reasonable compensation for such defect or change. In Section 14, however alterations or additions in the sanctioned plans, layouts and specifications of the buildings are permitted to be carried out with previous written consent of at least two-thirds of the allottees, other than the promoter, who have agreed to take apartments in such building. Section 18 in the RERA is a provision for return of amount and compensation, but it is different in effect from Section 7 and Section 7A and hence I do not agree with Mr. Kamat that the MOFA relief can be considered under Section 14 r/w Section 18 of RERA.
18 There may be various legislations which continue its existence beyond RERA and MOFA being one such legislation, the relief sought in the plaint pertaining to violation of MOFA rights, by no stretch of imagination would be covered under RERA. When Section 88 of the RERA makes its clear that the Ashish ::: Uploaded on - 22/05/2024 ::: Downloaded on - 30/05/2024 03:57:54 ::: 22/26 IA L 1651-21.doc provisions of the enactment are in addition to and not in substitution of any other provision for the time being in force, I do not think that the argument of Mr. Kamat deserve acceptance.
19 It must also be noted that this very argument was advanced before the learned Single Judge (Justice A.K. Menon), when an Interim Application (L) No. 3846 of 2020 filed by the Plaintiff seeking interim reliefs was heard and on behalf of defendant nos. 5 and 6 a similar contention was advanced which was dealt with and answered in paragraph no.27 to para 29 of the order dated 03/05/2021, where it is expressly held that the jurisdiction of this Court is not ousted by the provisions of RERA or Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971, as what the Suit essentially seek to enforce is, the obligations of the Developer under MOFA and there can be no quarrel with the fact that every developer is required to comply with the provisions of MOFA along with the RERA.
Justice Menon (As His Lordship was then), on confronted with the similar argument, observed as under:
"28. Strenuous efforts have been made by counsel on behalf of the defendants to establish commonality of reliefs sought in the present suit and the IA on one hand and the complaint under the RERA on the other. The question is whether because a RERA complaint had been filed, this court is powerless to grant any relief in the facts of the case? There is yet another perspective that needs to be looked into but apart from the bar under Section 79 of RERA, Section 42 of the Slum Act also contemplates a bar on civil courts adjudicating upon amendment of plans etc. and in effect Ashish ::: Uploaded on - 22/05/2024 ::: Downloaded on - 30/05/2024 03:57:54 ::: 23/26 IA L 1651-21.doc what the defendants have submitted is that the declarations sought in terms of the prayers in the suit cannot be granted by this court. Perusal of the comparative chart reveals that in respect of prayer clauses (a) to (bb) in the suit, the defendants are of the view that all reliefs can also be granted under the provisions of RERA. In particular, reference is made to Sections 7, 31, 35, 36, 37, 38 and 40(2) of RERA in support of the submission that the reliefs sought in the plaint and in the IA can all be sought before the RERA authorities and that many of these reliefs have in effect been incorporated as part of the reliefs in the RERA complaint. If on one hand the plaintiff has contended that the suit seeks to enforce the MOFA obligations of the developer, the developer has contended that the bar under Section 79 of the RERA and Section 42 of the Slum Act would effectively not entitle the plaintiff from seeking the present relief. Yet again, the plaintiff has contended that the relief is not merely to the extent that it is capable of being considered by the RERA authorities or by the Slum authorities. What we are facing here is a plaint seeking a mixed bag of reliefs. On one hand the aspect pertaining to the maintenance of property, payment of taxes, the allegation of intimidation, failure to hand over society's office and failure to execute conveyance, all cannot be independently handled under the RERA provisions. The mixed bag of reliefs therefore in my view is not beyond the jurisdiction of this court although there are several prayers that may fall within one or the other jurisdiction. MOFA in my view is the most fundamental of Acts amongst the three that we are concerned with. Without the MOFA, the provisions of RERA and of the Slum Act will make little practical impact in terms of rights of purchasers of units and flats in premises situated within the jurisdiction of this court. The MOFA being a local law, it will have to be given effect to and if in the course of giving effect to MOFA provisions, it becomes necessary to permit a plaintiff to invoke jurisdiction of this Court, so be it. Assuming that the plaintiff had not filed the present suit and had proceeded only with the RERA complaint in deference to the wishes of the defendants 5 and 6, the question is whether the RERA authorities could have granted any relief de hors the provisions of MOFA and the answer to my mind must be in the negative. Likewise in the absence of MOFA provisions, would the Slum Act and the authorities thereunder be entitled to effectively deal with claims of flat purchasers on issues Ashish ::: Uploaded on - 22/05/2024 ::: Downloaded on - 30/05/2024 03:57:54 ::: 24/26 IA L 1651-21.doc that are covered under MOFA ? Once again the answer must be in the negative. Thus, MOFA is the dominant enactment in the present case. RERA and the Slum Act are of a different species. RERA in effect seeks to regulate the real estate industry as a whole and the Slum Act deals with development of slum areas pursuant to the declarations. The three Acts have different scope and reach; whereas, the RERA enactment will have effect throughout the country, the Slum Act and the MOFA are restricted in their scope to the State. None of the decisions that have been referred to and canvassed before me have ruled that once a RERA complaint is filed, no other Court or Tribunal can entertain any other grievance in relation to the subject matter of the complaint. It is for this reason that challenge to the provisions of RERA was based on its constitutional validity. Both in Neelkamal Realtors (supra) and in Lavasa Corporation (supra), the challenge was substantially to the validity of the Act. While the RERA enactment seeks to bring about uniformity throughout the country, the fact remains that the local laws which already provide for certain regulation of the real estate business, still continue to be valid and in this respect, Section 88 of the RERA makes it clear that the RERA provisions are in addition to and not in substitution of the present enactments. While there is no disputing the fact that RERA has been held to be a self-contained code especially considering the requirement of compulsory registration, extension of registration, powers of revocation of registration, highlighting the functions and duties of developers and the aspects of conveyance and transfer of title, the Act also provides for certain rights as duties of allottees; however, it falls short of encompassing all the aspects of MOFA. Had every provision of MOFA been part of the RERA enactment, then it would have been possible to hold that the Plaintiff could not have invoked the jurisdiction of this court. However, as on date and at this prima facie stage, it is not possible to find against the plaintiff. It cannot be disputed that the provisions of law have to be interpreted in a purposive manner. If the defendants' version is to be accepted, Section 88 of RERA would be rendered otiose and meaningless. I am unable to agree with the counsel for the defendants that in interpreting Section 88 with the help of Section 89 the views canvassed by the plaintiff would be rendered nugatory."
Ashish ::: Uploaded on - 22/05/2024 ::: Downloaded on - 30/05/2024 03:57:54 ::: 25/26 IA L 1651-21.doc 20 The decision in case of Neelkamal Realtors was also extensively referred by Justice Menon, which was based on testing the constitutionality of RERA it is concluded that save and except for the constitution of the tribunal, all other provisions of the RERA have been upheld does not indicate that the provisions of the MOFA need not be given effect to and if the provisions of the MOFA can be invoked and sought to be enforced by a Suit in this Court, mere filing of the complaint before the RERA authority will not frustrate the plaintiff's effort in securing relief in this Court.
Conclusively the following observations in the order conform to my reasoning, that the Suit filed by the Plaintiff for the reliefs therein is not barred and do not deserve rejection under order 7 rule 11 and this observation reads as below:
"The question is whether even the real estate regulatory authority can in such a situation pass orders and grant reliefs, which would encompass the roles played by the promoter, the purchaser a Co- operative Society and the Slum rehabilitation authority. This is a gray area and will need to be explore further before a conclusion can be reached. However, on the basis what has been canvassed before me since the IA is only at an ad-interim stage and detail hearing is in contemplation, I am of the view that prima facie institution of a complaint under RERA will not by itself bar this Court from entertaining a Suit. Whether in the given case the court should exercise a jurisdiction not would depend on the facts."
21 Since a plaint has to be rejected in its entirety and since the relief sought by the plaintiff are not only restricted to violation of RERA but there are various reliefs in the plaint, which are beyond the purview of RERA, the arguments Ashish ::: Uploaded on - 22/05/2024 ::: Downloaded on - 30/05/2024 03:57:54 ::: 26/26 IA L 1651-21.doc advanced by Mr. Kamat that the Suit is not maintainable in the wake of the bar under Section 79, in my considered opinion is without merit and specifically, in the light of the argument of Mr. Kapadia that it is doubtful whether the provisions of RERA would be made applicable to a project were the completion certificate is obtained in respect of 13 floor before RERA came into force and thereafter an attempt is made to construct additional area, in utter violation of MOFA, and this ultimately will be a matter for trial.
22 For the reasons recorded above, the application filed by the defendant nos. 5 and 6, seeking rejection of plaint is dismissed.
( SMT. BHARATI DANGRE, J.) Ashish ::: Uploaded on - 22/05/2024 ::: Downloaded on - 30/05/2024 03:57:54 :::