Macrotech Developers Limited ( ... vs The State Of Maharashtra And Ors
2021 Latest Caselaw 1932 Bom

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           Date: 2021.02.01
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                                                                  969-wpst-1118-2021.doc


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                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     CIVIL APPELLATE JURISDICTION
                                    WRIT PETITION (ST.) NO.1118 OF 2021

                   Macrotech Developers Ltd.                        ...Petitioner

                              Versus

                   The State of Maharashtra & Ors.                  ...Respondents
                                                   ----------


                   Mr. Prashant Gawali, for the Petitioner.
                   Mr. C.D. Mali, for the State.
                   Mr. Vikramjit Garewal with Mr. Kaustubh Patil i/b. P.D.
                   Ghandy & Associates for Respondent Nos.2 and 3.
                                                   ----------

                                                   CORAM :        K.K. TATED &
                                                                  R.I. CHAGLA, JJ.
                                                   DATE         : 29 January 2021

                   ORDER :

1. At the request of learned Counsel for the Respondent

matter called out, out of turn.

2. Heard learned Counsel for parties. Learned Counsel for

the Respondent Nos.2 and 3 submits that they have fled

undated praecipe for speaking to the minutes of the order

dated 18th January, 2021. He submits that in order dated 18th

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January, 2021, the following corrections are required to be

made:

(a) In the appearance as well as in para 6 and 14(g) of the

order dated 18th January, 2021, the name of Mr. Mayur

Khandeparkar be substituted with Mr. Vikramjit Garewal.

(b) Following paragraph be added as Paragraph No.14(h)

in the operative part of the order dated 18th January, 2021.

14(h) The Respondents to fle their Affdavit in Reply on

or before 3rd February, 2021, with copy to other side. The

hearing of the Writ Petition is expedited. List the matter for

fnal hearing on tth February, 2021.

3. Matter to appear on board on tth February, 2021. Liberty

granted to fle Affdavits in Reply and Rejoinder, if any, with

copy to other side on or before 3rd February, 2021.

3. Corrected order dated 18th January, 2021 reads thus:- Sharayu Khot.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION (ST) NO. 1118 OF 2021

Macrotech Developers Limited ...Petitioner

969-wpst-1118-2021.doc

Versus

The State of Maharashtra & Ors. ...Respondents

----------

Mr. Sharan Jagtiani a/w Mr. Prashant Gawali, Mr, Akshay Doctor, Mr. Akshay Pare, i/by Prashant Gawali for the Petitioner. Mr. C.D. Mali, AGP for the Respondent-State. Mr. Vikramjit Garewal a/w Mr. Kaustubh Patil, i/by P.D. Gandhy & Associates, for the Respondent Nos. 2 and 3.

----------

                                CORAM :        K.K. TATED &
                                               R.I. CHAGLA, JJ.
                                DATE         : 18 January 2021

ORDER :


1.          Heard learned Counsel for the parties.

2. By this Petition filed under Article 226 of Constitution of

India, the Petitioner is challenging the order dated 31st December

2020 passed by the Adjudicating Officer, Maharashtra Real Estate

Regulatory Authority in Complaint No. CC 006000000056889

holding that the compliant filed by the Respondent/Complainant is

maintainable and they are entitled for the reliefs.

3. The learned Counsel appearing on behalf of the

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Petitioner submits that the Respondent/Complainant earlier filed the

Complaint No. CC006000000000012 in respect of the same flat i.e. 2

BHK flat bearing No. 2003 having carpet area 925 sq.fts. on 25th

floor in Dioro, Wing A, New Cuffe Parade, Mumbai. At that time, the

Authority by its order dated 18th December 2017 held that the

complaint filed by the Respondent is not maintainable, because the

part occupancy certificate had been issued for the project i.e. from

the ground floor to 40th floor on 8th June 2017 within three months

from 1st May 2017 when the Act came into force. Hence, registration

with MahaRERA of the completed phase of the project which had

obtained part occupancy certificate was not required. Paragraphs 3

and 4 of the said order read thus:-

"3. However, the respondent has denied the contention raised by the complainant and stated that the present complaint is not maintainable, as the complainant has booked a flat bearing No. 2503 on 25th floor of B-wing of Building known as Lodha Dioro tower for which the part occupancy certificate has already been issued by the competent authority on 8-06-2017. Therefore, the said completed phase of the project has not been registered with MahaRERA. The respondent has submitted a copy of the part occupancy certificate on record of this Authority.

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4. An identical issue has been dealt with by the Hon'ble Full Bench of MahaRERA vide order dated 17-11-2017 passed in Complaint No. CC006000000000182 along with other two matters, wherein it was held that as per section 3 of the RERA Act, 2016, the ongoing projects which have received the completion certificate/part occupancy certificate do not require registration and where the project is to be developed in phases, every such phase shall be considered a standalone real estate project."

4. Learned Counsel appearing for the Petitioner further

submits that the order dated 31st December 2020 which is passed by

the Adjudication Officer is not maintainable. He submits that the

Adjudication Officer, who passed the impugned order has no power

to pass the order under Sections 71 and 72 of the said Act. He further

submits that in the present proceedings the Respondents earlier filed

Writ Petition No. 2639 of 2018 with following prayers:-

"(a) Issue a Writ of mandamus or a writ in the nature of mandamus, or any other appropriate writ, order or direction under the Articles 226 of the Constitution of India calling for the records and papers pertaining to issuance of the Part OC and CC and, be pleased to quash the same.

Or:

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b) Issue a Writ of Mandamus or a writ in the nature of Mandamus, or any other appropriate writ, order or direction under the Articles 226 of the Constitution of India, as the circumstances of the case may require and direct the Respondent No.1 to revoke the Part OC dated 8 June 2017.

c) As the project is partially incomplete, that Respondent No.5 be directed to register the Ground to 40 th floors of Wings 3-6 with the Authority established under the Real Estate Regulation and Development Act, 2016 once the said part OC is revoked/quashed or even otherwise.

d) Direct Respondent No.5 to provide the Petitioners with alternate accommodation till the demolition of the upper floors is complete."

5. The learned Counsel for the Petitioner submits that the

Respondents challenged the part occupancy certificate issued in

favour of the Petitioner, but the same was not allowed by this Court.

He submits that though all these documents were placed before the

Adjudication Officer, the same were not considered when the

impugned order was passed. He further submits that pending the

hearing and final disposal of Petition, this Hon'ble Court be pleased

to stay the operation and implementation of the impugned order. He

submits that the if impugned order dated 31st December 2020 is not

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stayed, irreparable loss and injury will be caused to them.

6. On the other hand, learned Counsel Mr. Vikramjit

Garewal appearing on behalf of the Respondent Nos. 2 and 3 submits

that there is no bar in law to file the second complaint for the same

cause of action. He submits that the Respondent filed the second

complaint on the basis of the subsequent view taken by the Authority.

In support of his submissions, he has relyied on the judgment of the

Apex Court in the matter in Isabella Johnson (Smt.) Vs. M.A. Susai

(dead) by LRs1. He has relied on paragraph 5 of the said judgment,

which reads thus:-

"5. Learned counsel for the appellant submitted that the learned Judge of the High Court was in error, as the earlier decisions of the Rent Controller to the effect that it was the City Civil Court and not the Rent Controller who had the jurisdiction to entertain the suit for eviction filed by the appellant against the respondent, constituted res judicata between the parties on the question of jurisdiction. It was submitted by him that, even if that decision was wrong, the issue of jurisdiction was finally decided between the parties and that decision was that it was the Civil Court and not

1 (1991)1 SCC pg. 494

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the Rent Controller that had the jurisdiction to entertain and dispose of the suit for eviction. He further submitted that the respondent could not be permitted to take inconsistent pleas as he was barred by the principles of estoppel from taking up the plea before the Civil Court that it was the Rent Controller who had the exclusive jurisdiction to entertain the suit. He placed reliance on a decision rendered by a Division Bench comprising two learned Judges of this Court in Avtar Singh and Others v.

Jagjit Singh and Another, [1979] 4 SCC 83 which took the view that the Civil Court's decision regarding lack of jurisdiction will operate as res judicata in a subsequent suit. In that case the Civil Court declined jurisdiction. The Civil Court took the view that it had no jurisdiction to try the suit in question and directed the return of the plaint for representation to the appropriate Revenue Court. When the claim was filed in the Revenue Court, the Court took the view that it had no jurisdiction to try the claim. Thereupon, a suit was again instituted in the Civil Court for the same relief. This suit failed throughout on the ground of res judicata. The High Court affirmed the dismissal and the Division Bench of this Court took the view that the High Court was right in taking the view that the principles of res judicata were applicable to the issue of jurisdiction. In our opinion, the contention of learned counsel for the appellant cannot be upheld. We find that in Mathura Prasad Bajoo Jaiswal and Others v. Dossibai N.B. Jeejeebhoy, [1970] 3 SCR 830, a Bench comprising three learned Judges of this

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Court has taken the view that a decision on the question of jurisdiction of the court or a pure question of law unrelated to the right of the parties to a previous suit, is not res judicata in the subsequent suit. The Court observed: (SCCp. 619, para 11)

"It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question of law, i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression "the matter in issue" in S. 11, of the Code of Civil Procedure means the right litigated between the parties, i.e., the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the

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rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land."

7. On the basis of these submissions, the learned Counsel

for the Respondents states that the order passed by the Adjudication

Officer dated 31st December 2020 is according to law. He further

submits that if this Court grants any interim relief, in that case the

Petitioners may be directed to deposit the amount awarded to the

Respondents by MahaRERA by the impugned order. He further

submits that the Petitioner has alternate remedy to file appeal before

the concerned Authority under the said Act. Hence, there is no

substance in the present matter and the same be rejected.

8. We heard both the Counsel at length.

9. The Real Estate (Regulation and Development Act) 2016

came into force on 1st May 2017. Under Section 3 it is specifically

stated that the project had to be registered with the Authority within

a period of three months from that date. Section 3 reads thus:-

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"Prior registration of real estate project with Real Estate Regulatory Authority

(1) No promoter shall advertise, market, book, sell or offer for sale, or invite persons to purchase in any manner any plot, apartment or building, as the case may be, in any real estate project or part of it, in any planning area, without registering the real estate project with the Real Estate Regulatory Authority established under this Act:

Provided that projects that are ongoing on the date of commencement of this Act and for which the completion certificate has not been issued, the promoter shall make an application to the Authority for registration of the said project within a period of three months from the date of commencement of this Act:

Provided further that if the Authority thinks necessary, in the interest of allottees, for projects which are developed beyond the planning area but with the requisite permission of the local authority, it may, by order, direct the promoter of such project to register with the Authority, and the provisions of this Act or the rules and regulations made thereunder, shall apply to such projects from that stage of registration.

(2) Notwithstanding anything contained in sub-section (1), no registration of the real estate project shall be required--

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(a) 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:

Provided that, if the appropriate Government considers it necessary, it may, reduce the threshold below five hundred square meters or eight apartments, as the case may be, inclusive of all phases, for exemption from registration under this Act;

(b) where the promoter has received completion certificate for a real estate project prior to commencement of this Act;

(c) for the purpose of renovation or repair or re-development which does not involve marketing, advertising selling or new allotment of any apartment, plot or building, as the case may be, under the real estate project."

10. In the present proceedings, the Petitioner obtained

part occupancy certificate in respect of ground floor to 40th floor on

8th June 2017.

11. The first proviso to section 3 makes it mandatory

for the Promoters to make an application to the Authority for

registration of on-going project within three months from the date of

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commencement of the said Act. The first proviso provides that a

project in which a completion certificate has not been obtained, shall

be considered as an on-going project. However, Rule 4 of the

Maharashtra Real Estate (Regulation and Development) (Registration

of Real Estate Projects, Registration of Real Estate Agents, Rates of

Interest and Disclosures on Website) Rules, 2017 provides that the

requirement for registration of on-going projects shall be exempt in

case of the projects in which either Occupation Certificate or

Completion Certificate has been obtained. Therefore, if a real estate

project has obtained either Occupation Certificate or Completion

Certificate, such real estate project need not be registered with the

Authority.

"Rule 4. Disclosure by promoter of ongoing real estate projects :

(1) The promoter of an ongoing real estate project, in which all buildings as per sanctioned plan have not received occupancy certificate or completion certificate, as the case may be, as provided by clause (b) of sub-section (2) of section 3, shall be required to submit application for registration for each such phase of the project, within a period of three months from the date of commencement of section 3.

Explanation - For the purpose of this sub-rule,

(I) the expression "phase of the project" means the building or buildings in a project in respect of which occupancy or

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completion certificate has not been received;

(II) the term "completion certificate" shall mean such building permission or certificate, by whatever name called, which is issued by the competent authority by or under the provisions of Maharashtra Regional Town Planning Act, 1966 or any other law for the time being in force, in accordance with which the permission for development has been granted.

(2) The Promoter shall disclose all details of ongoing real estate project as required under Sub-section (1) and (2) of section 4 and Rule 3 including the extent of development carried out till the date of application for registration under sub-rule (1), as per the last approved sanctioned plan of the project and the extent of development of common areas amenities etc. completed in respect of buildings along with expected period of completion of the on-going real estate project. The promoter shall also disclose the original time period disclosed to the allottees, for completion of the project at the time of sale including the delay and the time period within which he undertakes to complete the pending project, which shall be commensurate with the extent of development already completed.

The Promoter shall submit a certificate from the practicing project Architect certifying the percentage of completion of construction work of each of the building/wing of the project, a certificate from the Engineer for the estimated balance cost to complete the construction work of each of the building/wing of the project, and a certificate from a practicing Chartered Accountant, for the estimated balance cost to complete the project. The promoter shall submit a certificate from a practicing Chartered Accountant, certifying the balance amount of receivables from the apartments/flats/premises sold or allotted and in respect of which agreement have been executed and estimated amount of receivables in respect of unsold apartments/flats /premises calculated at the prevailing ASR rate on the date of certificate.

(3) (a) The Promoter shall disclose the number of the apartments sold or allotted to the allottees and further disclose

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the size of the apartment based on carpet area even if such apartments are sold earlier on any other basis, such as super area, super built-up area etc.

(b) In case of plotted development, the promoter shall disclose the area of the plots sold to the allottees including extent of share of common areas and amenities etc.

(4) The Promoter shall construct and develop real estate project in accordance with the sanctioned plan, and layout plans and specifications as approved by the Competent Authorities:

Provided that, the promoter developing a real estate project will be entitled to aggregate any contiguous land parcel through acquisition of ownership and title or by receiving development permission, including for re-development project and thereupon may also obtain phase-wise approvals from the relevant competent authorities to sanctioned plan under applicable laws, rules and regulations:

Provided further that, at the end of ninety days from the date of notification of section 3 of the Act, the promoter shall not advertise, market, book, sell or offer for sale or invite persons to purchase in any manner any plot, apartment or building respect of such land parcel unless he registers such independent phase as a separate real estate project within the meaning of clause (c) of the Explanation to section 3:

Provided also that, previous written consent of least two- third of the allottees may not be necessary for implementation of the proposed plans/specifications as disclosed in agreement executed with the allottee prior to registration or for any alterations or additions or modifications in the sanctioned plans, layout plans and specifications of the buildings or common areas in the Real Estate Project which are required to be made by promoter in compliance of any direction or order, etc. issued by, the competent authority or statutory authority, under any law of the State or Central Government, for the time being in force."

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12. In view of the above mentioned facts and as the

Occupation Certificate has been obtained by the Petitioner within a

period of three months from the date of commencement of the said

Act, prima facie, the registration is not necessary. These facts are not

considered by the Adjudicating Officer. Apart from that in the case in

hand, the earlier application filed by the Respondent was rejected by

the concerned Member of the Maharashtra Real Estate Regulatory

Authority, Mumbai by order dated 18.12.2017 holding that they have

no jurisdiction to decide the same.

13. In view of these facts, we are satisfied that the

Petitioner has made out a case for admission of this Petition for

deciding the issue as to whether the MahaRERA has jurisdiction to

decide the Application filed by the Respondents in the present matter

as the part occupancy certificate had been issued on 8th June 2017.

It is made clear that in case the Respondents succeed in the present

matter, the Petitioners have to pay the said amount which had been

awarded by MahaRERA in the impugned order to the Respondents

along with interest at the rate fixed by this Court.

14. In view of these facts, the following order is

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passed:-

(a) Admit.

(b) Leave to amend is granted.

(c) Amendment to be carried out on or before 6th February

2021.

(d) Amended copy to be served on other side immediately

thereafter.

(e) Re-verification dispensed with.

(f) Interim reliefs in prayer clause (b) which reads thus:-

"Pending the hearing and final disposal of this Writ Petition, this Hon'ble Court will be pleased to stay the execution and implementation of the judgment and order dated 31.12.2020 (Exhibit B hereto) passed by AO pending the hearing and disposal of this petition."

(g) Mr. Vikramjit Garewal waives service on behalf of

Respondent Nos. 2 and 3.

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(h) The Respondents to file their Affidavit in Reply within two

weeks. The hearing of the Writ Petition is expedited.

 [R.I. CHAGLA J.]                     [K.K. TATED, J.]