Case Note & Summary
The petitioner, M/s. Shree Siddharth Construction, a partnership firm, challenged the constitutional validity of amendments made to the Maharashtra Ownership of Flats Act, 1963 (MOFA) by Act No.4 of 2008, specifically amendments to Sections 2, 5, 5A, 10, 11 and 13. The petitioner also sought to quash an order dated 26 March 2012 passed by the Competent Authority (District Deputy Registrar, Respondent No.4) under Section 5A of MOFA directing conveyance of land to Respondent No.1 society, and a consequential conveyance deed dated 30 May 2012. The petitioner was the developer of a housing project and had entered into agreements with flat purchasers. The society (Respondent No.1) was formed and demanded conveyance of the land. The Competent Authority, after hearing parties, directed the petitioner to execute conveyance within 30 days, failing which the authority would execute it. The petitioner failed to comply, and the authority executed the conveyance on 30 May 2012. The petitioner argued that the amendments were ultra vires the Constitution, particularly Article 14 and Article 19(1)(g), and that the Competent Authority had no jurisdiction. The respondents, including the society and the State, defended the amendments as valid and the order as lawful. The High Court, after considering submissions, held that the amendments are within legislative competence, do not violate fundamental rights, and are regulatory in nature. The court also held that the Competent Authority's order was valid as the promoter had failed to convey the land within the statutory period. The petition was dismissed with no order as to costs.
Headnote
A) Constitutional Law - Legislative Competence - Amendments to MOFA - Maharashtra Ownership of Flats Act, 1963, Sections 2, 5, 5A, 10, 11, 13 - Challenge to amendments as ultra vires the Constitution - Court held that the amendments are within the legislative competence of the State Legislature and do not violate Article 14 or Article 19(1)(g) of the Constitution - The amendments are regulatory in nature and in public interest (Paras 1-24).
B) Property Law - Conveyance of Land - Competent Authority's Power - Maharashtra Ownership of Flats Act, 1963, Section 5A - Order dated 26 March 2012 directing conveyance of land to society - Court upheld the order as the promoter failed to execute conveyance within the statutory period - The Competent Authority has jurisdiction to direct conveyance even after the society is registered (Paras 25-30).
C) Interpretation of Statutes - Retrospectivity - Amendments to MOFA - Maharashtra Ownership of Flats Act, 1963, Act No.4 of 2008 - Amendments are prospective and apply only to agreements entered into after the amendment - No retrospective operation (Para 24).
Issue of Consideration
Whether the amendments to Sections 2, 5, 5A, 10, 11 and 13 of the Maharashtra Ownership of Flats Act, 1963 by Act No.4 of 2008 are ultra vires the Constitution and whether the order dated 26 March 2012 passed by the Competent Authority under Section 5A directing conveyance is valid.
Final Decision
The petition is dismissed. No order as to costs.
Law Points
- Amendments to MOFA are intra vires
- not retrospective
- Competent Authority has power to direct conveyance
- Section 5A MOFA valid
- Section 11 MOFA amended validly
Case Details
WRIT PETITION NO.1439 OF 2012
MOHIT S. SHAH, C.J., M.S. SANKLECHA, J.
Mr. P.K. Dhakephalkar, Senior Advocate with Mr. Gaurav R. Joshi and Mr. Yogesh Adhia for the Petitioner; Mr. Sanjay Jain along with Ms. Usha Gadagkar and Ms. Premlata Yadav i/by Divya Shah Associates for Respondent No.1; Mr. D.J. Khambata, Advocate General with Mr. J.S. Saluja, A.G.P. for Respondent State
M/S. Shree Siddharth Construction
Shree Saraswati Apartment Cooperative Housing Society Limited, M/s. Reliable Constructions Company, Saraswati Coop. Housing Society Ltd., District Deputy Registrar Coop. Societies, The State of Maharashtra
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Nature of Litigation
Writ petition under Article 226 of the Constitution challenging constitutional validity of amendments to MOFA and an order of Competent Authority directing conveyance.
Remedy Sought
Declaration that amendments to MOFA by Act No.4 of 2008 are ultra vires; writ of certiorari to quash order dated 26 March 2012; writ of mandamus to cancel conveyance dated 30 May 2012.
Filing Reason
Petitioner, a builder/developer, challenged amendments to MOFA and an order directing conveyance of land to the society.
Previous Decisions
Order dated 26 March 2012 by Competent Authority under Section 5A MOFA directing petitioner to execute conveyance within 30 days; conveyance executed on 30 May 2012 by authority after petitioner's failure.
Issues
Whether the amendments to MOFA by Act No.4 of 2008 are ultra vires the Constitution?
Whether the order dated 26 March 2012 passed by the Competent Authority under Section 5A MOFA is valid?
Submissions/Arguments
Petitioner argued that amendments are arbitrary, violate Article 14 and Article 19(1)(g), and are beyond legislative competence.
Respondents argued that amendments are regulatory, in public interest, and within legislative competence; Competent Authority's order is valid as promoter failed to convey.
Ratio Decidendi
The amendments to MOFA by Act No.4 of 2008 are within the legislative competence of the State Legislature and do not violate Article 14 or Article 19(1)(g) of the Constitution. The Competent Authority under Section 5A has jurisdiction to direct conveyance of land to the society when the promoter fails to execute conveyance within the statutory period. The amendments are prospective and apply only to agreements entered into after the amendment.
Judgment Excerpts
By this petition under Article 226 of the Constitution of India the petitioner seeks the following reliefs: a) A declaration that the amendments made to Sections 2,5,5A, 10,11 and 13 of the Maharashtra Ownership of Flats Act,1963 (“MOFA”) by Act No.4 of 2008 are ultravires, unconstitutional, null and void.
At the hearing no submissions were made on behalf of the petitioner with regard to the declaration sought at (a) above namely, declaring the amendment to the MOFA as ultra vires.
Procedural History
Petitioner filed Writ Petition No.1439 of 2012 in Bombay High Court challenging amendments to MOFA and order of Competent Authority dated 26 March 2012. The petition was heard and reserved on 2 September 2013, and judgment pronounced on 17 October 2013.
Acts & Sections
- Maharashtra Ownership of Flats Act, 1963: 2, 5, 5A, 10, 11, 13
- Constitution of India: Article 14, Article 19(1)(g), Article 226
