25.11.2020 Lecture real state regulation casenlaw, Slides of Land Law

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TRIBUNAL,MUMBAI Rohit Chawla Vs.M/s Bombay Dyeing & Mfg.Co.Ltd. 31sr DECEMBER,

• "Island City Center" is the project launched by the Promoter at Spring Mills Compound, Wadala, G.D. Ambekar Road, Wadala Mumbai. Phase II of the project consists of construction of two towers i.e. " ICC Tower One" and "ICC Tower Two“ Allottees agreed to purchase and Promoter agreed to sell the flats in the sald two towers.
• Project is extremely luxurious project, with super structures that rise above the skyline of Mumbai with luxurious facilities, world class infrastructure, amenities, 8 acers of lush green landscape, residences with a choice of international designer furnishings, state of art amenities inside the apartments, choice of floorings in bedrooms i.e. marble or timber, marble flooring in kitchen and bathrooms, completely air conditioned residences, Vaastu compliant plans, home automation, indoor and outdoor privileges etc.

TRIBUNAL,MUMBAI Rohit Chawla Vs.M/s Bombay Dyeing & Mfg.Co.Ltd. 31sr DECEMBER,

• 80 percent consideration is to be paid by the

allottees at the time of possession of the flat'

Allottees have paid approximately 90 percent

of the consideration of their respectively flat

in the year 2012 - 2013 to the promoter. It is

approximately on or above 2 crores paid by

each of the allottees to the promoter' Amount

towards MVAT an Service Tax and premium of

Rs. 5000 /- per sq' meter was also paid by the

allottees.

TRIBUNAL,MUMBAI Rohit Chawla Vs.M/s Bombay Dyeing & Mfg.Co.Ltd. 31sr DECEMBER,

• Project Registered and time line extended
• RER Act came in to force on 1. 05. 2017 Promoter

registered the project with MahaRERA as it was

incomplete on 1. 05. 2017. Time line for the

completion of the project was unllaterally

extended by the promoter' Promoter mentioned

the proposed date of possession as 31. 08. 2018

and revised date for completion of the project as

31. 08. 2019 at the time of registration. Time line

for the completion of the project was unilaterally

extended by the Promoter'

TRIBUNAL,MUMBAI Rohit Chawla Vs.M/s Bombay Dyeing & Mfg.Co.Ltd. 31sr DECEMBER,

• No specific order for refund with interest and

compensation was passed by MahaRERA

under Section 12 & Section 18 of RERA'

MahaRERA observed that Section 12 of RERA

does not act retrospectively and Section 12 is

not attracted to the present transactions

between parties which took place in year

2 Ol 2 - 13 i'e' much prior to the enactment of

RERA on 1. 5. 17

TRIBUNAL,MUMBAI Rohit Chawla Vs.M/s Bombay Dyeing & Mfg.Co.Ltd. 31sr DECEMBER,

• Project falls under RERA
• RERA came into force with effect from 1. 05. 2017 ' Since the project was incomplete on 1. 5. 2017 , promoter registered the project with MahaRERA under Section 3 of RERA' Promoter extended the time line of completing the project. Proposed date for completion of project was shown as 31 ' 08. 2018 and revised date of completion of project was shown as 31 ' 08 2019 at the time of registration. Project is governed by RERA' Rights and Liabilities of the parties are governed by provisions of RERA'

TRIBUNAL,MUMBAI Rohit Chawla Vs.M/s Bombay Dyeing & Mfg.Co.Ltd. 31sr DECEMBER,

• Case of Allottees
• 16. Allottees agreed to purchase and promoter also agreed to sale the respective flats in the project and accordingly booking application forms, booking confirmation letters and allotment letters were issued in the year 2012 - 2013. Admittedly, allottees paid about l 9 o/o of the total price which is approximately on or above Rs. 2 Crore to the promoter for their respective flats‘ Allottees had made out the case that on the basis of representation made and assurances given by the promoter in broacher, advertisement, prospects of the project, allottees decided to purchase their respective flats In the said project in the year 2012 - 13 and accordlngly paid about Rs' 2 crores for their respective flats to the promoter.

TRIBUNAL,MUMBAI Rohit Chawla Vs.M/s Bombay Dyeing & Mfg.Co.Ltd. 31sr DECEMBER,

• Order of Mahrst RAEA
• After hearing both sides, Complaints were disposed of by MahaRERA and parties were advised to execute agreement for sale and alternatively allottees were allowed to withdraw from the project as per the terms and conditions of allotment letters' Thus, the relief sofrefund,interest&compensation sought by allottees were not granted. MahaRERA held that Section 12 of RERA cannot be made applicable retrospectively to the transactions between Allottees & Promotor which took place prior to enforcement RERA.

TRIBUNAL,MUMBAI Rohit Chawla Vs.M/s Bombay Dyeing & Mfg.Co.Ltd. 31sr DECEMBER,

• Argument of Allottees
• The Learned Counsel for Allottees argued that Section 12 and Section 18 of RERA are made applicable retroactively as Rera is social and beneficial legislation. According to them, though transactions had taken place prior to enactment of RERA, provisions of RERA regarding compensation including Section 12 and Section 18 of RERA apply to such transactions' They relied on observations made by their Lordships of Hon'ble Bombay High Court in Neel Kamal Realtors case to substantiate their submission.

TRIBUNAL,MUMBAI Rohit Chawla Vs.M/s Bombay Dyeing & Mfg.Co.Ltd. 31sr DECEMBER,

• He referred following case laws: -

• Purbanchal Cables and Conductors Pvt. Ltd.

vs. Assam State Electricity board decided

2 O. 7. 2012. Their Lordship have observed that,

• "substantive law creating a vested right

operates prospectively and procedural or

declaratory law operates retrospectively

unless expressly provided for otherwise in

statue itself"

TRIBUNAL,MUMBAI Rohit Chawla Vs.M/s Bombay Dyeing & Mfg.Co.Ltd. 31sr DECEMBER,

• In Commissioner of Income Tax (Centra!)-l New Delhi Vs. Vatika Towshipship Pvt. Ltd. Under section 158 B of Income Tax on the point as to whether it can be made retrospectively applicable, Apex Couft has observed as under:
• "of course various rules guiding how a legislation has to be interpreted, one established rule is that unless contrary intention appears, a legislation is presumed, not to be intended to have a retrospective operation. The idea behind rule is that current law should govern current activities. Law passed today cannot apply to the events of the past."

TRIBUNAL,MUMBAI Rohit Chawla Vs.M/s Bombay Dyeing & Mfg.Co.Ltd. 31sr DECEMBER,

• The Hon'ble Apex Court laid down following guidelines
• about ambit and scope of amending Act & its retrospective operation.
• i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, it's application, should not be given an extended meaning and should be strictly confined to it's clearly defined limits.

TRIBUNAL,MUMBAI Rohit Chawla Vs.M/s Bombay Dyeing & Mfg.Co.Ltd. 31sr DECEMBER,

• ii) Law relating to forum and limitation is

procedural in nature, whereas law relating to

right of action and right of appeal even

though remedial is substantive in nature,

• v) A statute which not only changes the

procedure but also creates new rights and

liabilities shall be construed to be prospective

in operation unless otherwise provided either

expressly by necessary implications.