Bombay High Court
Ms. Michelle Dsouza vs State Of Maharashtra And Ors on 3 August, 2021
Bench: K.K. Tated, P. K. Chavan
12-WP-1610-2021.doc
Shailaja
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.1610 OF 2021
Ms. Michelle D'Souza ] Petitioner
Vs.
State of Maharashtra and others. ] Respondents
.....
Mr. Kunal Katariya a/w Tanuj Lodha, a/w Rachana Magdum & Ria
Jain i/b Lodha & Lodha Advocates, for Petitioner.
.....
CORAM : K.K. TATED &
PRITHVIRAJ K. CHAVAN, JJ.
DATE : 3 rd AUGUST, 2021.
P.C.
1. Heard Mr. Katariya, learned Counsel for the petitioner.
2. By this petition under Article 226 of the Constitution of
India, the petitioner is challenging the order dated 18 th October,
2020 passed by respondent No.2- The Maharashtra Real Estate
Regulatory Authority, Mumbai in Source Complaint
No.SC10001982 declining to take any action against the
respondent-Developer on the ground that it is not registered under
Real Estate (Regulation and Development) Act, 2016.
Digitally signed by
SHAILAJA SHAILAJA SHRIKANT
SHRIKANT HALKUDE
Date: 2021.08.06
HALKUDE 16:00:37 +0530
1 of 5
12-WP-1610-2021.doc
3. Mr. Katariya, learned Counsel appearing on behalf of the
petitioner submits that the reason given by the Authority is
contrary to law. He submits that neither the Authority directed the
respondent-Developer to refund the amount to the petitioner nor
directed to take any action against them. Hence, she preferred the
present writ petition.
4. Observations made by the Tribunal in paragraphs 7 and 8
read thus;
"7. Since the Respondent does not have valid
approvals from the Competent Planning Authority,
no directions can be issued to register the project,
as on date. However, the Respondent is directed to
apply for MahaRERA registration within 30 days
of their obtaining the requisite approvals for the
project. Further, he shall not advertise, market,
book or create third party rights by offer for sale,
enter into agreement for sale for any apartment in
this proposed project, without registering the
project with MahaRERA.
8. To the query of the learned counsel for the
Complainants No.2 and 3, requesting for direction
on their prayer to refund the consideration
amount paid by the Complainant, it was explained
that as stated in Para 86 of the judgment of
Hon'ble Bombay High Court in Writ Petition
No.2737/- U Neelkamal Realtors Vs. Union of
2 of 5
12-WP-1610-2021.doc
India, RERA will apply after getting the project
registered. Therefore, merits of the other
grievances made by the Complainants have not
been gone into. The Complainants have the liberty
to raise the same in an appropriate forum".
5. It is to be noted that the Maharashtra Real Estate Regulatory
Authority, Mumbai in it's order dated 18th October, 2020 relied on
the judgment of this Court in case of Neelkamal Realtors vs. Union
of India, 2018 (1) ABR, 558 . Paragraph 86 of the said judgment
reads thus;
"86. On behalf of the petitioners it was submitted that
registration of ongoing project under RERA would be
contrary to the contractual rights established between the
promoter and allottee under the agreement for sale
executed prior to registration under RERA. In that sense,
the provisions have retrospective or retroactive
application. After assessing, we find that the projects
already completed are not in any way affected and,
therefore, no vested or accrued rights are getting affected
by RERA. The RERA will apply after getting the project
registered. In that sense, the application of RERA is
prospective in nature. What the provisions envisage is
that a promoter of a project which is not complete / sans
completion certificate shall get the project registered
under RERA, but, while getting project registered,
promoter is entitled to prescribe a fresh time limit for
getting the remaining development work completed.
From the scheme of RERA and the subject case laws cited
3 of 5
12-WP-1610-2021.doc
above, we do not find that first proviso to Section 3(1) is
violative of Article 14 of Article 19 (1) (g) of the
Constitution of India. The Parliament is competent to
enact a law affecting the antecedent events. In the case of
State of Bombay vs. Vishnu Ramchandra (Supra), the
Apex Court observed that the fact that part of the
requisites for operation of the statute were drawn from a
time antecedent to its passing did not make the statute
retrospective so long as the action was taken after the Act
came into force. The consequences for breach of such
obligations under RERA are prospective in operation. In
case ongoing projects, of which completion certificates
were not obtained, were not to be covered under RERA,
then there was likelihood of classifications in respect of
undeveloped ongoing project and the new project to be
commenced. In view of the material collected by the
Standing Committee and the Select Committee and as
discussed on the floor of the Parliament, it was thought
fit that ongoing project shall also be made to be
registered under RERA. The Parliament felt the need
because it was noticed that all over the country in large
number of projects the allottees did not get possession for
years together. Huge sums of money of the allottees is
locked in. Sizable section of allottees had invested their
hard earned money, life savings, borrowed money, money
obtained through loan from various financial institutions
with a hope that sooner or later they would get
possession of their apartment/flat/unit. There was no law
regulating the real estate sector, development
work/obligations of promoter and the allottee. Therefore,
4 of 5
12-WP-1610-2021.doc
the Parliament considered it to pass a central law on the
subject. During the course of hearing, it was brought to
notice that in the State of Maharashtra a law i.e. MOFA on
the subject has been in operation. But MOFA
provisions are not akin to regulatory provisions of RERA".
6. As the respondents are not served, following order is passed;
:ORDER:
(a) The petitioner is permitted to serve the
respondents by private notice along with entire
proceedings either by R.P.A.D or hand delivery and
file affidavit of service on or before 27 th August,
2021;
(b) If affidavit of service is filed in time, the matter to
appear on board on 31st August, 2021;
(c) If affidavit of service is not filed in time, the matter
to appear on board as per C.I.S date.
[PRITHVIRAJ K. CHAVAN, J.] [K. K. TATED, J.]
5 of 5
