Aqua Infrastructure vs Gujarat Real Estate Regulatory/ ...
2021 Latest Caselaw 17458 Guj

     C/SCA/16944/2021                             ORDER DATED: 18/11/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 16944 of 2021

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                  AQUA INFRASTRUCTURE
                          Versus
 GUJARAT REAL ESTATE REGULATORY/ ADJUDICATING AUTHORITY
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Appearance:
MR. PARTH H BHATT(6381) for the Petitioner(s) No. 1
MS PRIYANSHI P CHANDARANA(10841) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

                              Date : 18/11/2021

                               ORAL ORDER

Heard learned Advocate Mr. Parth Bhatt appearing for the petitioner.

1. Mr. Parth Bhatt, learned Advocate submitted that the petitioner developer, has floated the scheme of "Gala Aurum"and the respondent No. 2, was desirous of purchasing a plot for residential purpose and had approached the petitioner. She was informed about the salient features of the plotting scheme together with minute details. It is submitted that the respondent No. 2 decided to purchase one sub-plot admeasuring 2772.83 sq. mtrs. numbered as Sub-plot No. A-6, followed by the execution of the conveyance deed on 09.11.2015. After the majority of the plots were sold to the respective allottees/ purchasers, Memorandum of Understanding dated 31.03.2015 was executed handing over the management and the administration of the scheme "Gala Aurum". After a lapse of six years, the respondent no. 2 has submitted a complaint in February, 2021 before the Gujarat Real Estate Regulatory Authority who, has issued show cause notice dated

C/SCA/16944/2021 ORDER DATED: 18/11/2021

27.10.2021 under the provisions of Section 31 of the Real Estate (Regulation and Development) Act,2016 requiring the petitioner to remain present failing which, petitioner has been cautioned of passing ex-parte order. Mr. Parth Bhatt, learned Advocate at the outset submitted that the scheme got over prior to the commencement of the Act of 2016 and the action on the part of the respondent authority in applying the provisions of the Act with retrospective effect is misconceived.

2. Reliance is placed on the recent judgment of the Apex Court in the case of M/s. Newtech Promoters and Developers Pvt. Ltd. v. State of UP & Ors., wherein the Apex Court has in para. no. 54 held and observed that the scheme of the Act of 2016, its application is retroactive in character and the projects already completed or to which the completion certificate has been granted are not under its hold and therefore, vested or accrued rights, if any, in no manner are affected. It has been held that it will apply after getting the ongoing projects and further projects registered under Section 3 to prospectively follow the mandate of the Act of 2016. It is submitted that in view of the application of the Act of 2016 retroactive, the notice could not have been issued and hence the petitioner has prayed for a writ of prohibition against the respondent authorities.

3. Considering the submissions made, issue notice to the respondents returnable on 16.12.2021. Ad-interim relief in terms of para. Nos. 21 E and F is granted.

Direct service is permitted.

(SANGEETA K. VISHEN,J) SINDHU NAIR