MahaREAT: An act of the partner is binding on the partnership firm.

By Fiona Mehta

 

In the matter of Mr. Jervis Anthony Creado and Mrs. Rose Jervis Anthony Creado vs. Aishwarya Light Construction Company (Appeal No. AT006000000052415), this appeal emanates from the order dated 24th December, 2019 passed by MahaRERA whereby the learned Authority had not granted reliefs of interest / compensation under section 18 of the RERA as sought by appellants in their complaint.

 

Facts of the case: The complainants have booked a flat No. 504, on 5th floor, ‘A’
wing ad measuring 466 sq. ft. along with one open parking space in the project ‘Aishwarya Heights’ of the respondent situated at Andheri, Mumbai for a consideration of Rs. 80,00,000/-. The respondent had issued allotment letter dated 27th February 2017 to the allottees. The allottees have paid entire consideration to the developer.

On 27th February, 2017 the respondent has executed unregistered agreement for sale with the CC006000000141152 filed by the appellants whereby, the complainants and agreed to handover possession of the subject flat to complainants by December, 2017. The developer neither registered agreement for sale nor handed over possession of suit flat to complainants therefore the complainants filed complaint and sought directions to developer.

The developer appeared in the complaint and disputed the claim of complainants contending in his reply that the alleged agreement for sale does not confer any right to the complainants as it was an arrangement between them and therefore the same has not been registered.

It is worthy to note that though the agreement for sale was undated but the facts remains that one of the partners of the respondent has agreed to handover the possession of the subject flat to allottees by December, 2017. An act of the partner is binding on the partnership firm.

 

What options does Section 18 of RERA Act gives you? Section 18 gives an option to the allottees either to continue with the project by claiming interest on delayed period of possession or to withdraw from the project and to claim refund of entire amount along with interest including compensation. In the instant case allottees have chosen the first option. It clearly shows that the allottees are interested in getting possession of the flat as they have already paid substantial amount out of the total price of the flat to the promoter.

 

Order: The impugned order shows that the learned authority has denied relief of interest on account of delayed possession only for the reason that there is no registered agreement for sale executed between the parties showing any agreed date of possession. However, the material produced on record and the impugned order clearly indicate that one of the partners of respondent executed undated agreement for sale with the complainants.

Moreover, the respondent has also not disputed the factum of execution of undated agreement for sale by its partner. Therefore, we are of the view that the allottees are entitled to interest on their investments from January, 2018. Therefore, the appeal is allowed by the MahaREAT.

How a recent Supreme Court ruling extends the legal rights of a daughter to her father’s property

By Fiona Mehta

 

In the matter of Arunachala Gounder, the Supreme Court Judgment dated 20th January 2022 has whipped up a lot of interest and intrigue – more so among the general population than the legal community. The Judgment delivered by a Bench of Hon’ble Justice Abdul Nazeer and Hon’ble Justice Krishna Murari delves into the realms of a daughter’s rights on her father’s self-acquired property or his share in partitioned coparcenary/family property.

 

What was the issue?

The most recent Supreme Court decision addresses a daughter’s legal entitlement to inherit her father’s “self-acquired” property in the absence of any other legal successor with inheritable rights. This implies the Hon’ble Court decided whether the property’s lawful heir would be the daughter by ‘inheritance’ or her father’s brother’s son through survivorship. One important fact is that the Judgment deals with a scenario before the commencement of the Hindu Succession Act, 1956.

 

What the Supreme Court has said:

The Honorable Court stated unequivocally that a self-acquired property or a share received in a partition of a coparcenary property by a Hindu male who died intestate (without leaving behind a legally valid Will) will devolve (i.e. be transferred) by “inheritance” rather than “survivorship,” implying that the daughter of a Hindu male will be entitled to such property before any other collaterals.

In the present case – The Hindu male died intestate. He was living in a joint family. However, the property in question was his ‘self-acquired’ property and therefore, his sole surviving daughter had all the rights to inherit his property and not his brother’s son (through survivorship).

 

Who inherits the property after the death of the daughter of the Hindu male who died intestate?

The Hindu Succession Act of 1956 solidified inheritance among all Hindus (irrespective of school of philosophy). A Hindu female’s property (including property gained by inheritance) is her absolute property, according to Section 14 of the aforementioned Act. As a result, the misunderstanding caused by some old conventions that a Hindu girl could only enjoy the inherited property throughout her ‘lifetime’ was also dispelled.

The succession of such properties (owned by Hindu females) in absence of a Will/testament is governed by Section 15 of The Hindu Succession Act, 1956 and in terms of the ‘order of succession’ as provided for in Section 16 of the same Act.

 

Legal heirs of Hindu female who dies without a valid will:

When a Hindu female dies intestate, her self-acquired property will devolve in terms of Section 15(1), firstly by her class-I legal heirs viz. the children and the husband, if alive.

However, when a Hindu female dies intestate leaving behind inherited property, then as per Section 15 (2), if she dies issueless viz. without any children, then the property inherited from her father or mother will go to the heirs of her father. Similarly, property inherited from her husband or father-in-law will go to the heirs of the husband. The Supreme Court in the present Judgment has affirmed the sanctity of this provision by stating that the intent of the Legislature in carving out the ex ..

 

Supreme Court Decision:

The recent Supreme Court pronouncement clarifies the inheritance laws as applicable to a Hindu female as follows:

(a) The Hindu daughter inherits the self-acquired property of her father

(b) The rule of ‘inheritance’ prevails and not the rule of ‘survivorship’.

(c) The Hindu female has an ‘absolute’ right in such property (in terms of the Hindu Succession Act, 1956) and not a limited ‘lifetime’ interest.

(d) Such property can revert to the ‘source’ only when the Hindu female dies without leaving behind a child.

(e) In absence of a Will/Testament, such property devolves upon her legal heirs as per the terms of Section 15 and 16 of The Hindu Succession Act, 1956.

 

The Hon’ble Court has answered all the unanswered questions and redefined the law. While there could be a minuscule percentage of such cases, they would not drag on for many years, because the law has been clearly laid, leaving no room for any conundrum.

MahaRERA: Failure of completion of a flat project will lead to money refunded plus interest to buyers

RERA

RERABy Fiona Mehta

 

In the matter of Mr. Vikas Gupta and Neena Gupta v. M/s. Wheelabrator Alloy Castings Ltd and M/s. Runwal Real Estates Pvt. Ltd (CC006000000197002) under the MahaRERA Authority on 17th January 2022, the complainants had filed this complaint seeking directions  from MahaRERA to the respondent to refund the amount with interest and  handover possession under the provisions of section 18 of the Real Estate  (Regulation & Development) Act, 2016 in  respect of the booking of a flat in the  respondent’s registered project known as “Runwal Forests Tower 5-8” in Mumbai.

During the hearing on September 2, 2021, the respondents were fined Rs. 10,000/- for failing to file their replies on MahaRERA’s record. The respondents, on the other hand, filed a review application to have the order set aside, which the MahaRERA granted after hearing the parties on October 5, 2021.

 

Facts:

The complainants had reserved the aforementioned flat in the project registered by the landowner, respondent No. 1, for which a letter of allotment dated 18th October 2015 was properly issued to the complainants upon payment of the booking price of Rs. 59,91,565/-. Respondent No. 1 specified August 2019 as the date of possession in the stated assignment letter. Following that, on August 19, 2016, an agreement for sale was signed and registered, and the date of possession was altered to February 2020. The complainants alleged that they had paid a significant portion of the compensation.

Furthermore, the proposed completion date for Tower 8 has been pushed back several times till October 31, 2021. The complainants were then informed, via an e-mail dated 8th April 2021, that the project was completed up to 40 levels. The complainants then asked to be removed from the project. Furthermore, work on the flat sold to the complainants under the agreement for sale has yet to begin. As a result, the complainants are seeking a return of the monies spent to date, plus interest, as well as amounts paid for Stamp Duty and Registration, GST, VAT, Service Tax, and other taxes.

The MahaRERA has reviewed both parties’ submissions as well as the public record. The complainants, who are allottees of this project, have approached MahaRERA with this complaint, requesting a refund as well as interest for the delayed possession under section 18 of the RERA. The complainants further claimed that section 12 of the RERA had been also violated.

The respondent promoter refuted the complainants’ claim by filing written representations on record with MahaRERA, claiming that the delay in this project was caused by the competent authorities issuing Stop Work Notices due to a lack of Naval NOC, and that this was beyond its control. In light of the Hon’ble Punjab and Haryana High Court’s decision in the case of Janta Land Developers, the respondent has also rejected the complainants’ claims by raising the question of MahaRERA’s single bench’s jurisdiction to decide this complaint on its own.

 

Judgement/Held:

Given the facts and circumstances of this matter, the MahaRERA believes there is substance to the grounds for delay provided by the respondent, and that the delay was beyond the respondent’s control. As a result, the respondent is entitled to request MahaRERA’s assistance in completing this project. However, the respondent has now committed to finish the project and hand over control of the property to the complainants by acquiring the occupancy certificate on or before June 30, 2022.

Given these facts, the present complaint is dismissed with a directive to the respondent promoter to complete the project, obtain an occupancy certificate, and hand over possession of the said flat to the complainant on or before June 30, 2022, failing which, the complainants’ money will be refunded, plus interest, at the rate of SBI’s Highest Marginal Cost of Funds Based Lending Rate (MCLR) plus 2%, as prescribed under the provisions of the SBI Act.

Bombay High Court: ordered the builder to deposit 100% of the interest due to flat buyers

By Fiona Mehta

 

As a condition of hearing its appeal, the Bombay high court upheld an order of the RERA (Real Estate Regulation and Development Act) appellate tribunal (MAHAREAT) directing a builder to deposit 100% of the interest due to buyers for delays in handing over flats at a project called Wintergreen in Borivali in May 2022.

However, the HC, accepts an undertaking by the builder, CCI Projects Pvt Ltd, and gave it 5 months to deposit over Rs 19 crore before the Tribunal, of which Rs 5.5 crore is to be paid in 4 weeks.

The developer said it will deposit Rs 33 lakh, or 30% of the Rs 1.1 crore ‘penalty’ due to flat buyers, in 4 weeks. It will also provide more than Rs 10 lakh to expenses as directed. In their May 6 judgement, Justices Revati Mohite Dere and Madhav Jamdar stated that failure to fulfil deadlines will result in the rejection of any pending appeal before the panel.

CCI Projects’ counsels had challenged the tribunal’s orders under the RERA Act requiring it to deposit a 100 percent deposit “without recording any reasons.” According to the counsels, Section 43 (5) of the RERA Act provides the tribunal power to request a deposit of at least 30% of the amount, and “the appellate tribunal has directed deposit of considerably lesser amount in numerous other situations.”

The HC also heard from Central government’s counsel and the apartment buyers’ attorney where they pointed out that the Act only requires a minimum 30% deposit of the imposed ‘penalty,’ not any additional amounts. She stated that a pre-deposit of the total sum is mandatory before an appeal is considered.

The project is finished, according to the builder’s counsel, and the flats have been handed over to the buyers. According to him, the MahaRERA order is merely for compensation for delays, and hence, flat buyers’ concerns should have been dismissed.

 

Flat buyers filed 173 complaints, of which 69 have been resolved, 83 are awaiting hearing before the Authority, and 19 are awaiting conciliation. There were 112 appeals before the tribunal, 42 of which were settled, and 53 of which were granted a pre-deposit order.

The builder’s counsel then requested further time, claiming that the builder is willing to make the deposit in five months and has agreed to pay the interest deposit in five months, as well as not to create third-party rights in four shops at Arcade, Rivali Park in Borivali, valued at around Rs 12 crore.

The HC ordered that if the builder and flat buyers do not reach a settlement within five months, the builder is free to seek a revision of the ruling.

Section 43(5) of the Act envisages the filing of an appeal before the appellate tribunal against the order of an authority or the adjudicating officer by any person aggrieved and where the promoter intends to appeal against an order of authority or adjudicating officer against imposition of penalty, the promoter has to deposit at least 30 per cent of the penalty amount or such higher amount as may be directed by the appellate tribunal.

If the appeal is against any other order involving the return of funds to the allottee, the promoter must deposit with the appellate tribunal the total amount to be paid to the allottee, including any interest and compensation owed to him, if any, or both, as the case may be, before the appeal is filed.

SC awards builder 7 days’ jail and fine for contempt of court

By Fiona Mehta

 

In the matter of Urban Infrastructure Real Estate Fund v. Dharmesh S. Jain and another, the Supreme Court sentenced Respondent 1- real estate developer Dharmesh Jain to 7 days imprisonment at civil prison in Byculla on May 14, 2022 under the Contempt of Courts Act with a fine of Rs. 5 lakh to be deposed before the Bombay High Court in 2 weeks.

Vide detailed judgment and order dated March 10, 2022 passed in the aforesaid Contempt Petition, this Court held that Dharmesh Jain, for the contempt of this Court for wilful disobedience of the order dated October 28, 2021 passed by this Court in Miscellaneous Application No. 1668 of 2021 in Special Leave Petition (Civil) No. 14724/2021, as also, for wilful disobedience of the order passed by the High Court dated 08.08.2019 in Notice of Motion No. 960 of 2019 in Commercial Arbitration Petition No. 55 of 2019.

Two months prior, the SC had found him guilty of wilful disobedience of his October 2021 ruling as well as an August 8, 2021 Bombay High Court order. Following an arbitral award of Rs. 78 crore against him and Nirmal Infrastructure Pvt. Ltd, of which he is a director, in a commercial dispute with Urban Infrastructure Real Estate Fund over a share purchase agreement, the HC ordered him to deposit a certain amount.

The HC stated that they provided the respondents/contemnors with sufficient opportunities to either comply with the orders of this Court and the High Court, for which wilful disobedience has been established and they are liable to be punished suitably under the provisions of the Contempt of Courts Act, or to settle the dispute amicably with the petitioner herein, but neither the respondents/contemnors have complied with the orders passed by this Court and the High Court.

However, so as to give one last opportunity to the contemnor to purge the contempt and comply with the orders passed by the Bombay High Court as well as this Court, it is observed that the aforesaid sentence shall be kept in abeyance for a period of two weeks from today, failing which, the aforesaid sentence shall take effect and on non-compliance, the respondent No.1 herein – Dharmesh Jain will then surrender before the concerned Court/Authority to undergo the sentence imposed by this Court.

Delhi High Court: Real Estate Appellate Tribunal does not have suo motu powers.

By Fiona Mehta

 

In the matter of Praveen Chhabra v. Real Estate Appellate Tribunal (2022) under the High Court of New Delhi, the Court quashed the suo motu proceedings initiated by the Appellate Tribunal to monitor construction activity in the National Capital Territory.

The court held that under the Real Estate (Regulation and Development) Act, 2016 (RERA), the jurisdiction of the Appellate Tribunal stands confined to consideration of challenges raised against orders passed by either the Real Estate Regulatory Authority or the Adjudicating Authority under the RERA.

In this matter, the Appellate Tribunal had filed suo moto proceedings in the national capital against a number of residential and commercial projects, as well as construction activities associated with them, and had issued restriction orders against them. Additionally, it had passed an order stating that all construction activity, residential or commercial, would be stayed till the project is registered under RERA Act.

Aggrieved by the same, Praveen Chhabra, the builder developer approached the High Court after he was informed that the plans he had submitted could not be approved in light of the Appellate Tribunal order. The Appellate Tribunal neglected to consider the scope of the Act, according to the Court.

According to Sections 43 and 44 of the RERA Act, which provide for the establishment of tribunals and the definition of what disputes can be brought before such tribunals, the Appellate Tribunal was established as a forum whose jurisdiction could be invoked by a person aggrieved by an order, decision, or direction of the Authority.

The High Court also said that the Appellate Tribunal being a creation of statute, is not part of traditional judicial institutions.

The Court, therefore, quashed the order staying the construction of projects until they are registered under with the RERA authority.

“The Court also takes into consideration the significant portent of the direction issued. It has practically injuncted all construction activity in the NCT of Delhi. The aforesaid injunction is not shown to have been preceded by any enquiry with respect to the validity of a particular project or even a prima facie assessment or evaluation of the validity of a single project,” the Court observed while quashing the order.

The judge, however, clarified that he was not interfering with the Authority’s right to independently examine individual projects under the RERA Act.

Therefore, the Real Estate Appellate Tribunal does not have powers to initiate cases suo motu, the Delhi High Court recently held while setting aside such proceedings initiated by the tribunal to monitor construction activity in the National Capital Territory.

MahaREAT: Allottees are entitled to claim refund with interest and withdraw from the project when Promoters failed to handover possession with OC.

By Fiona Mehta

 

In the matter of Mr. Suryakant Yahswant Jadhav and Suryakant Jadhav HUF vs. Bellissimo Hi-Rise Builders Pvt. Ltd. And others. (Appeal No. AT006000000021407 and AT006000000021408) before the MahaREAT, where both the parties have executed and registered agreements for sale separately for two flats on 17th May, 2014 and on 16th May, 2014, Promoters agreed to handover possession of the flats on or before 28th February, 2017. Allottees have paid about 95 to 96% of price of each of the flats. Promoters failed to handover possession of the flats as per agreed date. Project was incomplete on 1st May, 2017 i.e., the date on which the RERA came into force, promoters registered the project under RERA.

Therefore, Allottees decided to withdraw from the project and demanded refund with interest and compensation as per Section 18 of RERA. Promoters did not pay any heed. Allottees filed separate complaints (Complaint No. CC006000000056404 and Complaint No. CC006000000056405) for each flat before MahaRERA.

MahaRERA conducted enquiry and heard Allottees and Promoters. MahaRERA disposed of both the Complaints by common order dated 6th March, 2019 and held that Section 18 of RERA does not apply to the present dispute. MahaRERA advised Allottees to take possession of their respective flats which is ready for occupation. Aggravated by this, the Allottees have fled two separate appeals challenging the order.

According to the Allottees Counsel, allottees have the right to make a compensation claim with the Adjudicating Officer under RERA Sections 71 and 72. The impugned order is not legally enforceable for the reasons outlined above. As a result, Allottees are entitled to a refund plus interest because the Promoters failed to deliver possession of the flats on the agreed-upon date in the sale agreements.

In view of above submissions, it is submitted by Allottees that for the reasons of delay in possession along with failure to provide amenities as promised and failure to provide flats as booked. Allottees are entitled to seek refund with interest and compensation and therefore the impugned order is liable to be set-aside.

Order: In view of the delay in possession as observed above, Allottees are entitled to withdraw from the project under Section 18(1) of RERA which the Authority has failed to consider and recognize. It is not possible to accept the observations made by the Authority in para 3 of the impugned order holding that Section 18(1) would not apply once the construction is complete or possession is handed over, as the case may be.

Having regard to the above observations, it is found that Promoters have not been able to hand over possession on the agreed date i.e., 28.02.2018 as per clause 11.1 of the AFS. Therefore, Allottees are entitled to withdraw from the project and consequently eligible for reliefs as provided under Section 18(1) of RERA. In the result, the impugned order cannot be sustained and deserves to be set aside.

Final Order: Appeal No. 4T006000000021407 and Appeal No. 4T006000000021408 are allowed by MahaREAT. Promoters shall refund the amount received from Allottees in respect of both the flats along with interest.

MahaREAT: Acceptance of possession will nullify the complaint.

By Fiona Mehta

 

In the matter of Asha Ashok Katariya vs. M/s Jawala Real Estate Pvt. Ltd. (Appeal No. AT005000000053030), where MahaRERA rejects application for amendment and disposing of the complaint in consequence of rejection of amendment application.

Facts of the matter: Complainant booked a flat in promoter’s project “Lodha Marquise-B” in Lower Parel, Mumbai. Allotment letter was issued in 2013. Later on 28th August 2013, agreement for sale was executed between the parties. According to complainant agreed date of fit out possession was 31st December 2017 and with one year grace period promoter agreed to deliver possession. As possession could not delivered in time, allottee filed complaint before MahaRERA seeking several reliefs such as refund of entire amount with interest under Section 18 of the RERA Act, 2016, compensation for mental agony, and compensation under Section 12 for providing false information.

As possession was offered and accepted during the pendency of complaint, complainant filed an application for amendment seeking change in the relief of refund as for possession and interest on delayed possession. Authority rejected the application for amendment on the ground that provisions of Code of Civil Procedure can be considered as guidelines and amendment sought is against the settled proposition of law. It was observed that Section 38 of RERA and Regulation 42 of MahaRERA General Regulations 2017 do not permit such amendment.

Second ground on which application came to be rejected is that cause of action does not survive as possession has been taken by complainant and reliefs of refund and possession being contrary to each other cannot be granted in view of settled propositions.

It is an admitted fact that possession was offered by promoter during the pendency of complaint and then accepted by allottee. As can be seen from possession letter dated 28th October 2020 complainant had reserved her right at the time of taking possession and specifically endorsed on possession letter that acceptance of possession was “without prejudice”.

It can be revealed from the record that on 28th October 2020 itself complainant filed an additional affidavit before the Authority mentioning events which transpired leading to possession. On 5th November 2020 she moved an application for amendment. It is surprising to note that in the entire order there is no whisper regarding additional affidavit filed by complainant or endorsement “without prejudice” on possession letter. Authority completely ignored the very edifice of amendment application while rejecting the same.

Order: In the case on hand, it can be seen that while passing order on application for amendment, Authority reached to the conclusion that in view of rejection of amendment application cause of action does not survive and disposed of the complaint. It clearly demonstrates that complainant was not given an opportunity of hearing before disposing of complaint. This in our view amounts to violation of principles of natural justice as contemplated under Section 38(2) of the Act of 2016 thereby rendering the impugned order unsustainable in law.

NCRDC: Builder to pay 6% interest on delay compensation

By Fiona Mehta

 

In the matter of Vikas Mittal vs. DLF Universal Limited & Anr. (Consumer case no. 424 of 2020) before the National Consumer Disputes Redressal Commission New Delhi, under Section 21(a) (i) of the Consumer Protection Act, 1986 seeking delay compensation @12% per annum for delay in delivery of possession of the Apartment.

Facts: The Complainant booked an Apartment in the Project of the Opposite Party “DLF Capital Greens” situated at Shivaji Marg, New Delhi. The Complainant paid Rs. 7,50,000/- as the booking amount as per application form dated 29.09.2009 and thereafter he was allotted Unit- CGM-074, 7 floor, Block M vide allotment letter dated 05.10.2009. The Opposite Party No. 1, DLF Universal Limited (hereinafter referred to as the OP-1) and the Complainant executed an Apartment Buyer’s Agreement dated 27.10.2010 wherein the total consideration of the Unit was mentioned as Rs.1,05,26,250/-. As per clause 11(a) of the Agreement the Unit was to be delivered within 36 months from the date of Application Form i.e. by 29.09.2012.

The Complainant submitted that after collecting substantial amount, OP-1 vide letter dated 19.07.2012 extended the time period by 16 months and consequently clause 11(a) of the Agreement was revised from 36 months to 52 months. Therefore, the revised proposed date of possession become 29.01.2014. However, possession was not offered even on the revised proposed date of possession. The Complainant further stated that OP-1 also gave him option to exit the project and claim refund with interest but he chose to continue.

The Complainant stated that in response to letter dated 29.06.2017 of OP-2 the Complainant vide e-mail dated 15.07.2017 sought clarifications in order to pay the balance dues to take possession. However, no response was received from OP-2. Thereafter the Complainant visited the office of Opposite Parties and deposited 10% of the balance amount. The Complainant further stated that Vide e-mail dated 01.12.2017, OP-2 admitted to delay in handing over the possession and stated that the possession could only be issued post the receipt of the clearance of account. The OP-2 vide e-mail dated 07.12.2017 informed the Complainant that the approval for the discount is in place and the possession letter for the Unit has also been issued. However, when the Complainant did not receive the possession letter, he requested Opposite Parties to share the Possession letter. The Opposite Parties vide email dated 15.12.2017 apologized for its inability to issue the possession letter and stated that the same is subject to submission of requisite documents and also stated that the physical possession of the Unit could be taken on 27.01.2018.

Judgement: They found that there is no doubt to the fact that there has been an unreasonable delay in construction as the Unit which was not completed even as per the revised date of possession in 29.01.2014. The Opposite Parties issued possession letter dated 07.12.2017 after obtaining the Occupancy Certificate. There has been definitely an inordinate delay of more than 3 years from the revised date of possession for obtaining the Occupancy Certificate and offering possession for which the Opposite Parties have not given any reasonable justification. The Occupation Certificate was only received in 2017. The Opposite Party has not given any reasonable justification for this delay also. Therefore, the Complainant is entitled for a fair and reasonable delay compensation.

The Opposite Parties/builder is directed to pay delay compensation @6% per annum to the Complainant on the amount deposited by him from the revised date of possession i.e. 29.09.2014 till 09.05.2019 i.e. the date when the possession letter of the Unit was received by the Complainant within a period of six weeks from this Order. Any delay beyond this will attract an interest of 9% per annum.

Mumbai SRA: Builders are no longer blacklisted if misrepresentation done by appointed Architect or third party

By Fiona Mehta

In the matter of Sunshine Builder and Developers vs. CEO/SRA before the Apex Grievance Redressal Committee (Appl. No. 91 of 2022), the Applicant is challenging order dates 29th June 2015 and the corrigendum dated 2nd July 2015 passed by Respondent CEO/SRA under Section 13(2) of the Maharashtra Slum Areas Act 1971 whereby the Applicant developer is blacklisted on record of SRA by Respondent.

The Applicant’s Advocate requested a committee to place the present Application on mentioning board for grant of urgent relief on the ground that black listing of the Applicant is civil death ad stigma without any reason. Thus, the principle of natural justice was not followed when the order was initially passed in 2015. The impugned order has not only restricted the Applicant from working in the S. R. Scheme but also it is affecting the overall status brand and goodwill of the Applicant as the Applicant has been forced to shut its entire business due to the stigma of blacklisting.

He then states that the wrongful act was done by he appointed Architect. Despite having no role and despite being victim of architect, Applicant has not submitted any Slum Scheme with the SRA since the last 7 years after passing of the impugned order. Therefore, the impugned order is against the right to do business which is a fundamental right given to the citizens of India under the Article 19(1)(g) of Part III of the Constitution of India.

Considering the submission made by the Applicant’s Advocate and considering the facts of the case, it appears that at the time of the approval of the subject S.R. scheme the Applicant developer has not made any misrepresentation before any Government Authority. The charge sheet filed by Police Station in 2017 found that the NOC received by misrepresentation from the Airport Authority is done by the Architect. Moreover, the order dated 5th February 2016 passed in Anticipatory Bail Application No. 150 of 2016 also clarifies the fact that Applicant have no role in representation to the Airport Authority of India.

Order: Considering the acts presented in Anticipator Bail Appl. No. 150 of 2016 and the judgement of Honorable Supreme Court of India above this Committee quash and sets-aside impugned order dated 29th June 2015 passed by the CEO/SRA. Therefore, the Applicant, Sunshine Builders and Developers, are no longer blacklisted.

 

 

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