H. Rishabraj Developers vs State Of Mahrashtra And Ors
- Court
- Bombay High Court
CNR No : HCBM010256272022
WP-894-2024 WITH WP-7618-2022 JUDGMENT DOC.
bdp-sps
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.894 OF 2024
H. Rishabraj Developers ]
through its partner Mr. Niraj ]
Jagwani a partnership firm ]
registered under the Indian ]
Partnership Act, 1932 having its ]
office at 103, Jai Tirth Road, No.10, ]
Daulat Nagar, Borivali East, ]
Mumbai – 400 066. ] ….Petitioner
Versus
1. State of Maharashtra through ]
the office of Government Pleader ]
2. The Maharashtra Real Estate ]
Regulatory Authority having its office]
at Housefin Bhavan, Plot No.C-21, ]
E-Block Bandra Kurla Complex, ]
Bandra (East),Mumbai – 400 051. ]
3. Kinjal M. Karia,adult Indian, ]
Residing at 302, Arvind Kamal ]
Apartments, Shankar Lane, Kandivali ]
(West),Mumbai – 400 067. ]
4. Mahesh Karia, adult Indian ]
residing at 302, Arvind Kamal ]
Apartments Shankar Lane, ]
Kandivali (West), ]
Mumbai – 400 067. ]
5. Jayant Mehta, sole proprietor of ]
Bhakti Enterprises having its office at ]
501, Samajdeep, Adukia Road, ]
Kandivali West, Mumbai- 400067. ]
6. Khambhati Modh Vanik Samaj ]
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through its trustee Mr. Kaushik ]
Chandawala a charitable trust duly ]
registered under the provisions of ]
the Bombay Public Trust Act, 1950 ]
having its registered address at ]
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Samaj Darshan, 1 floor, Parekh ]
Lane, Near Jain Temple, Kandivali ]
West, Mumbai – 400067 ] ...Respondents.
WITH
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7618 OF 2022
WITH
INTERIM APPLICATION NO.10986 OF 2024
IN
WRIT PETITION NO.7618 OF 2022
H. Rishabraj Developers ]
through its partner Mr. Niraj ]
Jagwani a partnership firm ]
registered under the Indian ]
Partnership Act, 1932 having its ]
office at 103, Jai Tirth Road, No.10, ]
Daulat Nagar, Borivali East, ]
Mumbai – 400 066. ] ….Petitioner
Versus
1. State of Maharashtra through ]
the Office of Government Pleader. ]
2. Office of District Collector, ]
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Mumbai Suburban, 10 Floor, ]
Administrative Building, Near Chetna]
College, Government Colony, ]
Bandra (East), Mumbai – 400 051. ]
3. The Office of the Tahsildar and ]
Executive Magistrate, Borivali at S.V. ]
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Natakwala Lane, Dr. N. R. Karode ]
Marge, Road, Borivali West, ]
Mumbai-400092. ]
4. Kinjal M. Karia,adult Indian, ]
Residing at 302, Arvind Kamal ]
Apartments, Shankar Lane, Kandivali ]
5. Mahesh Karia, adult Indian ]
residing at 302, Arvind Kamal ]
Apartments, Shankar Lane, ]
Kandivali (West), Mumbai – 400 067.]
6. Jayant Mehta, sole proprietor of ]
Bhakti Enterprises having its office at ]
501, Samajdeep, Adukia Road, ]
Kandivali West, Mumbai- 400067. ]
7. Khambhati Modh Vanik Samaj ]
through its trustee Mr. Kaushik ]
Chandawala a charitable trust duly ]
registered under the provisions of ]
the Bombay Public Trust Act, 1950 ]
having its registered address at ]
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Samaj Darshan, 1 floor, Parekh ]
Lane, Near Jain Temple, Kandivali ]
West, Mumbai – 400067. ]
8. Maharashtra Real Estate ]
Regulatory Authority an authority ]
incorporated under the provisions ]
of the Real Estate (Regulation and ]
Development) Act, ]
2016 having its registered office at ]
Housefin Bhavan, Plot No.C-21, E- ]
Block, Bandra Kurla Complex, ]
Bandra (East), Mumbai – 400051. ]
9. The Cosmos Co-operative Bank ]
Limited having its office at Off. ]
Chandavarkar Road, Ramdas Sutrale ]
Marg, Borivali West, Mumbai-400092.] …..Respondents.
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Mr. Mayur Khandeparkar with Mr. Bishwajeet Mukharjee, Ms.
Naman Gupta, Mr. Humera Syed and Mr. Omkar
Mendadkar, for the Petitioner in both the Writ Petitions.
Mr. A.K. Saxena with Mr. T.R. Yadav, Mr. P.B. Kadam, for the
Respondent No.2 in WP No.894 of 2024 and for the
Respondent No.8 in WP No.7618 of 2022.
Ms. Vinodini Srinivasan with Mr. Atmaram Patade, Ms. Shraddha
Patil and Mr. Rahul R. Dubey i/b Mr. Atmaram Patade, for
the Respondent Nos. 3 and 4 in both the Writ Petitions.
Mr. Himanshu Takke, AGP, for the Respondent-State in WP No.894
of 2024.
Mr. A.I. Patel, Addl. G.P. with Ms. R.A. Salunkhe, AGP, for the
Respondent-State in WP No.7618 of 2022.
Mr. Vishal Kanade with Mr. Shashikant Chaudhari, Ms. Snehal S.
Chaudhari, Ms. Tanaya Patankar and Mr. Atharv Nalawade
and Mr. Pranot Pawar, for the Respondent No.6 in WP
No.894 of 2024.
Mr. Vishal Kanade with Mr.Shashikant Chaudhari, Ms. Snehal S.
Chaudhari, Ms. Tanaya Patankar and Mr. Atharv Nalawade,
for the Respondent No.7 in WP No.7618 of 2022.
Ms. Nikita Jacob with Mr. Kinjal Khandelwal i/b K.P. Law
Associate, for the Respondent No.6 in WP No.7618 of 2022
and for the Respondent No.5 in WP No.894 of 2024.
CORAM : SUMAN SHYAM &
GAUTAM A. ANKHAD, JJ.
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Reserved on : 7 OCTOBER, 2026
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Pronounced on : 5 NOVEMBER, 2026
JUDGMENT: (Per Gautam A. Ankhad, J.)
1. These two Writ Petitions raise a common question
concerning the liability of an incoming developer for the
financial obligations incurred by an erstwhile developer
towards purchasers of flats in a redevelopment project.
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2. The Writ Petitioner in both the Petitions is the
subsequent developer of a real estate redevelopment project
known as ‘Samaj Darshan’. It has filed Writ Petition No.894 of
2024 under Articles 226 and 227 of the Constitution of India,
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challenging the order dated 21 March 2022 (“impugned
order”) passed by Respondent No. 2–Maharashtra Real Estate
Regulatory Authority (“MahaRERA”). By the impugned order,
MahaRERA has allowed the Review-cum-Execution
Application filed by Respondent Nos. 3 and 4, who claim to be
the allottees of flats in the said project, and directed the
Petitioner and Respondent No. 5-erstwhile developer, to pay
interest on the principal amount of Rs. 37 lakhs paid by
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Respondent Nos. 3 and 4 to Respondent No. 5, from 17 May
2018 until actual realisation of the amount.
3. The contentions of the Writ Petitioner are that :-
(i) The Petitioner was not a party to the original order dated
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17 May 2018 which required Respondent No.5-erstwhile
developer to pay Rs. 37 lakhs to Respondent nos. 3 and 4. Yet
in 2021, the Petitioner has been directed to pay interest for the
period from 2018 onwards;
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(ii) Respondent No.5 had taken monies from Respondent nos.
3 and 4 and defaulted in its repayment obligation. However,
the impugned order proceeds on an erroneous interpretation
of Sections 15 and 18 of the Real Estate (Regulation and
Development) Act, 2016 (“RERA Act”) and foists Respondent
No.5’s liability on the Petitioner; and
(iii) MahaRERA has no power to review its own orders.
4. The Petitioner has filed the second Petition, namely
Writ Petition No. 7618 of 2022, challenging the consequential
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orders dated 23 March 2022 and 30 May 2022 passed by
the Tahsildar–Executive Magistrate. By these orders, the
Petitioner's bank accounts bearing nos. 122100101069 and
122100101090, maintained with Respondent No. 9–Cosmos
Co-operative Bank, have been attached and frozen in exercise
of powers under Section 180 of the Maharashtra Land
Revenue Code, 1966 (“MLRC”), and payments to persons
other than Respondent Nos. 3 and 4 have been restricted.
Since both the Petitions arise from the same controversy
raising common questions of facts and law, they are being
disposed of by this common judgment. As the array of
respondents differ in both the Petitions, to avoid confusion in
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this judgment, the parties are referred to as arrayed in Writ
Petition No. 894 of 2024.
5. These Petitions have a chequered history and we are
referring only to the material facts that are necessary for
adjudicating these Petitions:
(i) The Respondent No. 6 is a charitable Trust and the
owner of a property comprising land and a tenanted building
containing 44 tenements (“said property”). As the building
was in a dilapidated condition, in 2011, the Respondent No.6-
Trust had resolved to undertake redevelopment, jointly with
Respondent No.5-erstwhile developer. In 2013-14, steps were
initiated towards redevelopment by the Trust and Respondent
No.5. These steps included obtaining consents of the tenants,
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execution of Memorandum of Understanding dated 2
January 2014, obtaining permissions from the statutory
authorities and taking steps towards demolition of the
building. The MOU specifically stipulated that the
development rights were subject to obtaining permission from
the Charity Commissioner, Mumbai, and that Respondent No.
5 alone would be responsible for the claims made by any
person against the Trust. It also recorded the proposed
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arrangement for distribution of the free-sale area, to which
Respondent No. 5 would be entitled, after accommodating the
tenants.
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(ii) On 9 January 2014, Respondent No. 5 issued a Letter
of Allotment in favour of Shri Sanjay Khandelwal in respect of
Flat No. 902.
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(iii) On 13 January 2014, on the basis of the MOU, the
Trust applied to the Charity Commissioner under Section 36 of
the Maharashtra Public Trusts Act, 1950, seeking permission
for the sale and redevelopment of the said property.
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(iv) On 22 January 2015, the Respondent No. 5 issued a
Letter of Allotment (“LOA”) in favour of Respondent Nos. 3
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and 4 for the same Flat No. 902 on the 9 floor of the
proposed building.
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(v) On 8 June 2015, the Charity Commissioner sanctioned
the proposal for sale and development of the said property,
under Section 36 of the Maharashtra Public Trusts Act, 1950
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issued to the Trust. On 7 December 2015, the Trust executed
a registered Development Agreement along with an
irrevocable Power of Attorney in favour of the Respondent
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No.5, authorizing it to execute agreements for sale, allotment
letters and other documents.
(vi) By 2017, Respondent No.5 could construct only seven
floors in the project. Disputes arose between the Trust and
Respondent No.5 on account of alleged breach of the
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Development Agreement. On 15 July 2017, the Trust
terminated the Development Agreement and invoked the
arbitration agreement for resolution of their inter se disputes.
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The dispute culminated in an arbitral Award dated 12 May
2025, directing Respondent No.5 to pay Rs. 5,39,50,173/- to
the Trust, together with interest at the rate of 10% per annum,
from the date of the award until payment. Respondent No.5
has challenged the Award under Section 34 of the Arbitration
and Conciliation Act, 1996 and the same is pending before this
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Court . However, no stay has been granted with regard to the
enforcement of the Award.
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(vii) Meanwhile, on 31 August 2017, the Respondent No.5
had unilaterally registered the project with MahaRERA, by
projecting itself and the Trust as co-promoters of the project
although the Development Agreement entered with the
1 Commercial Arbitration Petition (L) No.29444 of 2025
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Respondent No.5 itself was terminated on 15 July 2017.
According to the Trust, this was done without its knowledge
and that it did not execute any document relating to the
registration of the said project. Nevertheless, MahaRERA on its
website had reflected the Trust as a co-promoter of the project
with a specified area share.
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(viii) On 6 March 2018, the Respondent Nos. 3 and 4, in
their capacity as allottees of flat No.902, filed a complaint
before MahaRERA against Respondent No.5 and the Trust,
seeking refund of Rs. 37 lakhs paid towards the flat, together
with interest and compensation. The Trust was impleaded as a
party respondent in the said proceedings.
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(ix) By an order dated 17 May 2018, MahaRERA disposed
of the complaint after recording that Respondent Nos. 3 and 4
were seeking refund without interest and that Respondent
No.5 had furnished an undertaking to refund Rs. 37 lakhs in
accordance with an agreed schedule. The complaint was
disposed of on the basis of an undertaking given by
Respondent No.5. For the sake of convenience, the impugned
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order dated 17 May 2018 is quoted here-in-below for ready
reference:-
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“ORDER
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(17 May, 2018)
1. The complainants have filed this complaint
seeking directions from this Authority to refund the
amount paid by them to the respondent with
interest and compensation in respect of the booking
of the flat No.902 having carpet area of 478 sq.ft. In
MahaRERA registered project bearing
No.P51800010479 at Kandivali (West), Mumbai.
2. During the hearings, the complainants have
stated that they are seeking refund of the money
paid by them without interest.
3. The respondent filed a written undertaking on
record of this Authority stating that he is ready and
willing to refund the total amount paid by the
complainants by way of pay orders as per the
schedule mentioned in the said undertaking. The
complainants have agreed to accept the payment
dates as agreed mutually and accordingly, they also
signed the said undertaking. The same is taken on
record.
4. In view of the above, the complaint stands
disposed of.”
(x) Within two weeks of the aforesaid order, the
Respondent No.5 breached its undertaking and defaulted in
the first tranche in honouring the payment of Rs. 37 lakhs to
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Respondent Nos. 3 and 4. Consequently, on 12 June 2018,
the Respondent Nos. 3 and 4 filed a Review-cum-Execution
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Application inter alia seeking review of the order dated 17
May 2018 and interest and compensation from Respondent
No.5. For convenience, the Review-cum-Execution Application
is quoted:
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(xi) On 9 July 2018, during the hearing of the aforesaid
Review-cum-Execution Application, the Respondent No.5
furnished a fresh undertaking to repay Rs. 37 lakhs on or
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before 27 July 2018. The Trust was not present at this
hearing.
(xii) Notwithstanding the above undertaking, the Respondent
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No.5 once again defaulted on its undertaking and the payment
obligations towards Respondent Nos. 3 and 4. As such, the
MahaRERA heard the Review-cum-Execution Application and
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by its order dated 13 August 2018, rejected the request to
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review the order dated 17 May 2018. However, MahaRERA
had partly allowed the Application by directing the Collector
to issue a recovery warrant against Respondent No.5 to
recover the amount of interest and pay the same to
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Respondent nos. 3 and 4. Pursuant to that order, on 9 July
2019, the Tahsildar caused a boja/ charge or encumbrance of
Rs. 37 lakhs representing the principal amount due to
Respondent Nos. 3 and 4 under the MahaRERA orders dated
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17 May 2018 and 13 August 2018, to be recorded on the
property card of the said land.
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(xiii) Meanwhile, on 21 February 2019, the Trust and
Respondent No.5 arrived at consent terms, which were placed
before a single Judge of this Court hearing the arbitration
matter. However, defaults of Respondent No.5 continued and
it could not comply with its obligations under the said Consent
Terms. Hence, the Trust filed Notice of Motion No. 99 of 2019
in arbitration proceedings, seeking appointment of a Court
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Receiver to take over the project with permission to appoint a
new developer to complete the redevelopment. By the orders
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dated 26 November 2020 and 11 December 2020, this
Court had directed the Court Receiver to take possession of
the property and hand it over to Trust so as to appoint a new
developer and proceed with the redevelopment. It is in this
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background that on 7 July 2021, the Petitioner came into the
picture and executed a registered Development Agreement
with the Trust with rights to develop and sell the property.
The Petitioner has, since then, completed the redevelopment
under this Development Agreement.
(xiv) In the meantime, Respondent Nos. 3 and 4 appealed
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against the MahaRERA order dated 13 August 2018 before
the Appellate Tribunal. The said Respondents/allottees
assailed the impugned order on the ground that the
Respondent No.5 had repeatedly failed to pay the principal
amount and therefore, the Respondent Nos. 3 and 4 are
entitled to interest and compensation from Respondent No.5.
The Writ Petitioner was not a party to this Appeal.
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(xv) By an order dated 30 July 2021, the Appellate
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Tribunal had partly set aside the order dated 13 August 2018
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and remanded the matter to MahaRERA for fresh
consideration of the Review-cum-Execution Application. Upon
remand, MahaRERA scheduled a fresh hearing and on this
occasion, called upon the Petitioner to attend the hearing,
although the Petitioner was not impleaded in any of the
proceedings either before MahaRERA or the Appellate
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Tribunal. The matter was heard on 16 December 2021 and
written submissions were filed by the Petitioner as well as
Respondent Nos. 3 and 4.
(xvi) In a separate matter, being Suo Motu Case No.215 of
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2022, on 21 January 2022, MahaRERA passed an order
permitting registration of the project in favour of the
Petitioner. It recorded that since the change of promoter was
taking place pursuant to the directions of this Court in the
Section 9 proceedings, the need for obtaining consents for
changing the developer was waived. The order expressly
recorded that the Petitioner would not be liable for past
liabilities or claims made by any person in respect of the
project and the same would be the liability of the Trust. This
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order has not been challenged by any of the parties. On 19
December 2022, MahaRERA subsequently rectified its earlier
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order dated 21 January 2022 and recorded that the Trust
would also not be responsible for the liabilities of Respondent
No.5.
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(xvii) On 7 February 2022, a certificate of registration under
RERA Act was issued to the Petitioner as promoter of the
Project.
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(xviii) On 21 March 2022, the MahaRERA, by the impugned
order, allowed the Review-cum-Execution Application (which
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was remanded on 30 July 2021) and inter alia directed the
Respondent No.5 along with the Petitioner, described as the
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new promoter, to pay interest on Rs. 37 lakhs from 17 May
2018 until actual realisation. The claim for compensation was
rejected for want of documentary proof. The operative portion
of the order reads as follows:
BEFORE THE MAHARASHTRA REAL ESTATE REGULATORY
AUTHORITY, MUMBAI
Complaint No. CC006000000023601
Mrs. Kinjal Karia and Mr. Mahesh Karia ...Complainants
Versus
1. Mr. Jayant N. Mehta
2. Khambhati Modh Vanik Samaj ...Respondent
MahaRERA Project Registration No. P41800010479
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Coram: Dr. Vijay Satbir Singh, Hon’ble Member-I/MahaRERA
Ld. Adv. Avinash Pawar appeared for the Complainants.
Ld. Adv. Jayant Mehta appeared for the respondent no.1.
Ld. Adv. Shashikant Choudhary appeared for the Respondent
no.2.
Ld. Adv. Neel Gala appeared for the new promoter.
ORDER
(Monday, 21 March 2022)
(Through Video Conferencing)
1……………. to 20…………………..
“21. Considering these facts, the following order is
passed:
(a) The review application filed by the
complainants is allowed.
(b) The MahaRERA hereby directs the
respondent no.1 and the new promoter viz
M/s. H. Rishabraj Developers to pay interest
on the actual amount paid by the
complainants i.e. Rs. 37,00,000/- from the
date of order dated 17-05-2018 till the
actual realisation of the said amount to the
complainants.
(c) With regard to the payment of interest
to the complainants, the MahaRERA further
directs that the respondent no.1 and the new
promoter are entitled to claim the benefit of
“moratorium period” as mentioned in the
Notifications/Orders nos. 13 and 14 dated
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2 April, 2020 and 18 May, 2020 issued by
the MahaRERA and the Notification/Order
which may be issued in this regard from time
to time.
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(d) As far as the claim of compensation
sought by the complainants, no documentary
proofs submitted on record of MahaRERA to
prove the mental agony. Hence, the said
claim stands rejected.”
(xix) The Petitioner has challenged the impugned order by
filing a Review Petition before MahaRERA, an appeal before
the Appellate Tribunal and Writ Petition No.894 of 2024
before this Court. At paragraph 3(p) of the present Petition,
the Petitioner has undertaken to withdraw those proceedings
in view of the present challenge. Subsequently, the review
application and the appeal have been withdrawn by the
Petitioner.
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(xx) In the meantime, Distraint Orders dated 23 March
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2022 and 30 May 2022 were passed by the Respondent No.3-
Tahsildar under Section 180 of the MLRC in execution of the
impugned order. The attachment imposed by these Distraint
orders is the subject matter of challenge in the subsequent
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Writ Petition No. 7618 of 2022. On 29 June 2022, this Court
ordered that no further steps shall be taken against the
Petitioner in pursuance of the impugned Distraint Orders.
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Notwithstanding the stay order, on 26 November 2024, the
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Adjudicating Officer of MahaRERA issued a recovery warrant
against the Petitioner and the Respondent No.5 for the
principal and interest accrued till date. This order has also
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been stayed by this Court on 10 January 2025 qua the
Petitioner.
6. It is in the above factual background that the Petitioner
has approached this Court challenging the impugned order of
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MahaRERA dated 21 March, 2022 and the consequential
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attachment orders dated 23 March 2022 and 30 May 2022
under Section 180 of the MLRC.
Submissions of the Petitioner (new developer):
7. Mr. Khandeparkar, learned counsel appearing for the
Petitioner in both the Writ Petitions, submits that MahaRERA
has no power to review its own orders. He submits that
Section 53(4)(e) of the RERA Act confers power of review
only upon the Appellate Tribunal. The RERA Act does not
expressly confer power of review upon MahaRERA and such
power cannot be derived from Regulation 36 of the
Maharashtra Real Estate Regulatory Authority (General)
Regulations, 2017 (“RERA Regulations”). According to the
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learned counsel, although the said Regulations are framed
under Sections 85(2)(i) and (ii) of RERA Act, yet, the rule-
making power conferred under the said provisions does not
permit the MahaRERA to make Rules which travels beyond the
scope of the enabling Act. Thus, the impugned order by which
the MahaRERA has reviewed its order ought to be set aside as
illegal and without jurisdiction.
8. On merits, Mr. Khandeparkar submits that the
Petitioner was not impleaded as a party to the original
proceedings or the appeal or the remanded proceedings. The
Petitioner attended the MahaRERA hearing on remand
pursuant to a notice issued by MahaRERA. In the absence of
the Petitioner’s impleadment to the proceedings, no orders
could have been passed, much less an order fastening
financial liability on the Petitioner.
9. Mr. Khandeparkar then contends that since 2018, the
liability to refund Rs. 37 lakhs is of Respondent No.5 alone,
who has also repeatedly undertaken before several authorities
to repay the amounts to Respondent Nos. 3 and 4. The
Development Agreement of Respondent No.5 is terminated
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which termination has been upheld by an arbitral Award. The
Petitioner executed the project pursuant to orders passed by
this Court in 2021 on a ‘clean-slate basis’. The exclusion of
past liabilities of Respondent No.5 is expressly recognised in
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MahaRERA’s registration order dated 21 January 2022.
Despite that, a few months later, the impugned order is passed
by another Member of MahaRERA foisting Respondent No.5’s
liability on the Petitioner. He submits that the impugned order
enlarges the relief granted in the original proceedings
inasmuch as any liability arising from the alleged default of
the Respondent No.5 must be pursued against the Respondent
No. 5 alone. The Petitioner is not liable to pay any dues of the
Respondent No.5 either under the contract or the provisions of
the RERA Act. Even assuming that the MahaRERA has the
powers to review its own order, the review jurisdiction is
limited and the original order cannot be modified substantially
by the authority so as to grant a new relief.
10. Mr. Khandeparkar contends that at the time when
Respondent No.5 issued the LOA in favour of Respondent Nos.
3 and 4, the Commencement Certificate for the project
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covered construction only up to the 8 floor, whereas, the Flat
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No.902 purportedly allotted to Respondent Nos. 3 and 4 was
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on the 9 floor. He contends that a valid Commencement
Certificate is a prerequisite for registration under Sections 3
and 4 of the RERA Act. Consequently, the registration granted
to Respondent No.5 under the RERA Act cannot extend to
floors for which no valid Commencement Certificate has been
issued. The LOA, when issued, was beyond the portion of the
building covered by such certificate. As such, Respondent Nos.
3 and 4 are not allottees and hence, cannot claim any rights
under the LOA.
11. Lastly, the learned counsel submits that the Petitioner
cannot be held liable for the acts or omissions of Respondent
No.5. Hence, the impugned order deserves to be quashed and
set aside. Consequently, the Distraint Orders attaching and
freezing the Petitioner’s bank accounts in execution of the
impugned order are also liable to be quashed and set aside. In
support of his submissions, Mr. Khandeparkar relied upon the
following judgments viz (i) Kapra Mazdoor Ekta Union vs.
2
Birla Cotton Spinning and Weaving Mills Ltd. & Another , (ii)
2 (2005) 13 SCC 777
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3
Deepak Prabhakar Thakoor v. MHADA & Ors ; (iii)
4
Mohammed Zain Khan v. Emnoy Properties India ; and (iv)
5
Tuvin Construction LLP v. State of Maharashtra.
Submissions on behalf of Respondent No. 7 – Trust
12. Mr. Vishal Kanade, learned counsel appearing for the
Trust in both the Writ Petitions, supports the Petitioner and
also contends that the MahaRERA lacks jurisdiction to review
its own orders under the RERA Regulations and pass the
impugned order.
13. On merits, Mr. Kanade submits that Respondent No.5
issued the LOA to Respondent Nos. 3 and 4 before the Charity
Commissioner had granted its sanction under Section 36 of
the Maharashtra Public Trusts Act, 1950 and before the
execution of the Development Agreement with Respondent
No.5. The Trust had not signed the LOA. Therefore, any
unilateral commitment of the Respondent No.5 made prior to
the signing of LOA is not binding on the Trust. He has further
3 WP(L) No.1776 of 2023 decided on 12/10/2023
4 2024 SCC Online Bom 1151
th
5 Writ Petition No. 1673 of 2025 decided on 9 September
2025 by Division Bench of Bombay High Court.
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argued that prior to the statutory sanction, the Respondent
No.5 could not have created any right, title and interest in
the said property. The Trust, therefore, could not be regarded
as a promoter under Section 2(c) of the Maharashtra
Ownership Flats Act, 1963 when the purported allotment
letters were issued.
14. Mr. Kanade also relies upon the several orders passed by
this Court in the Section 9 proceedings and the MahaRERA
st
order dated 21 January 2022 to contend that the
appointment of a new developer was a fresh appointment and
not a transfer of Respondent No.5’s rights and liabilities under
Section 15 of the RERA Act. The Trust terminated its
Development Agreement with the Respondent No. 5, which
th
has been upheld by the arbitral Award dated 12 May 2025.
Under the said Award, amounts in excess Rs. 5.40 crores are
due and payable by Respondent No.5 to the Trust. Finally, the
learned counsel submits that Respondent No. 5 had repeatedly
undertaken before the Authorities to refund Rs. 37 lakhs,
whereas the Trust had made no such promise to repay the
Respondent Nos. 3 and 4. In any case, Shri Jayant Mehta
representing the Respondent No.5 has filed affidavits dated
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th rd
10 April 2018 and 23 April 2018 before this Court in the
6
Anticipatory Bail Application to repay the amounts to the
investors including the Respondent Nos. 3 and 4 as per the
repayment schedule mentioned therein. As such, Trust is not
liable for any of the defaults of Respondent No. 5.
Submissions of Respondent Nos. 3 and 4 (Allottees)
15. Ms. Vinodini Srinivasan, learned counsel for
Respondent Nos. 3 and 4, opposes the Petitions on several
grounds including on the ground that the Writ Petitions are
not maintainable. She submits that the Petitioner had
st
challenged the impugned order dated 21 March 2022 by
filing a Review Application before MahaRERA and an Appeal
before the Appellate Tribunal. The Petitioner unconditionally
th
withdrew the Appeal on 25 April 2023 and the Review
th
Application on 8 November 2023. Having withdrawn these
proceedings, the Petitioner cannot now re-agitate the same
issues before this Court by invoking its writ jurisdiction.
Reliance is placed on Sarguja Transport Service & Ors. v. State
7
Transport Appellate Tribunal to contend that when a party
withdraws proceedings without obtaining liberty to institute
6 Anticipatory Bail Application No. 476 of 2018
7 (1987) 1 SCC 5
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fresh proceedings, it results in an abandonment of proceedings
and the said party cannot subsequently pursue the same cause
of action, seeking the same reliefs before another Court.
Hence, the Writ Petitions are not maintainable and deserve to
be dismissed.
16. As regards the question of powers of MahaRERA to
review its orders under the RERA Regulations, Ms. Srinivasan
submits that the Petitioner has not sought a declaration that
the said Regulations are ultra vires the RERA Act. There is no
pleading challenging the validity of the RERA Regulations nor
is there a prayer to strike down the RERA Regulations. Hence
no such case can be entertained. She has placed reliance on
8
Union of India & Ors. v. Manjurani Routray & Ors in support
of the above submissions. The learned counsel further submits
that in any case, the Review-cum-Execution Application filed
by Respondent Nos. 3 and 4 falls within the scope of
th
Regulation 36 of the RERA Regulations. By its order dated 17
May 2018, the MahaRERA had kept open the allottees’ rights,
until the Respondent No. 5 honoured its undertaking to make
payment. The Respondent No. 5’s breach of undertaking
8 (2023) 9 SCC 144
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constitutes a ‘subsequent event’ warranting review of the
original order under the settled principles of Order 47 of the
Code of Civil Procedure, 1908.
17. Ms. Srinivasan refutes the contention that the
impugned order is vitiated because the Petitioner was not
impleaded as a party to the original complaint. She submits
that the Petitioner, in its capacity as a co-promoter, was
notified by MahaRERA of the proceedings. The Petitioner
appeared at the hearing through an advocate and also filed
written submissions to oppose the Review-cum-Execution
Application. Having been unsucessful before the said forum,
the Petitioner cannot now allege non-joinder of party or that
the impugned order is unenforceable against the Petitioner.
18. Ms. Srinivasan further points out that the Appellate
th
Tribunal, by its order dated 30 July 2021, remanded the
matter to MahaRERA for reconsideration of the entitlement of
Respondent Nos. 3 and 4 to realise interest and compensation.
The order of the Appellate Tribunal has not been challenged
by any party. According to her, the impugned order passed on
remand does not enlarge the scope of the original order dated
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17 May 2018 but merely determines the issue of interest
based on subsequent events as per the directions of the
Appellate Tribunal. Ms. Srinivasan submits that the Trust was
a co-promoter along with Respondent No.5, under the
Development Agreement, which provided for an area-sharing
arrangement. The Trust transferred the project from one
developer to another i.e. the Petitioner within the framework
of Section 15 of the RERA Act. Hence, the Trust and the
Petitioner are liable as co-promoters and are answerable to the
allottees for all obligations arising from the project. She
further submits that the right to interest on the amounts due is
statutory in nature and flows from Section 18(1) of the RERA
Act, which obliges a promoter to refund the amount received,
together with interest. The Petitioner took over the project
with full knowledge of the existing liabilities and
encumbrances affecting the property. Hence, the Petitioner
cannot avoid the obligations attached to the project. Ms.
Srinivasan has relied upon the judgment of this Court in
9
Wadhwa Group Housing Pvt. Ltd vs. Vijay Choksi and Another
in support of the above submissions.
9 2024 SCC OnLine Bom 660
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19. Lastly, Ms. Srinivasan contends that the registration
st
order dated 21 January 2022 cannot be construed as
exempting the Petitioner from liabilities arising under the
RERA Act, as the same is only an administrative and
regulatory order permitting the change of promoter, whereas
the impugned order is an adjudicatory order deteriming
financial liabilities of a co-promoter under several provisions
of the RERA Act. On this basis, she submits that the
attachment orders issued by the Revenue Authorities amounts
to a statutory charge on the land and ought to be enforced
against the Petitioner. Accordingly, both the petitions ought to
be dismissed by this Court.
Submissions on behalf of Respondent No. 5 (Erstwhile
Developer)
20. Ms. Nikita Jacob, learned counsel appearing for
Respondent No. 5, supports the submissions advanced on
behalf of Respondent Nos. 3 and 4 to the extent that the
liability to repay interest is that of the Petitioner. Ms. Jacob
submits that Respondent Nos. 3 and 4 are bona fide allottees
who ought not to be prejudiced by disputes between the Trust
and her client. Setting aside the impugned order would cause
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serious prejudice to Respondent Nos. 3 and 4 and permit the
Petitioner and the Trust to be unjustly enriched out of the
development works undertaken by Respondent No. 5. She
submits that the Petitioner cannot retain the benefit of the
construction costs of approximately Rs 32 crores incurred by
Respondent No.5 and disclaim the liabilities associated with
the project. Reliance is placed on Sections 2(zk) and 15 of the
RERA Act to contend that the Petitioner and the Trust are
jointly liable for all obligations arising from the project,
including payment of the amounts directed by MahaRERA.
21. Ms. Jacob further submits that, although the Charity
Commissioner granted sanction under Section 36 of the
th
Maharashtra Public Trusts Act on 8 June 2015, yet, the Trust
and Respondent No. 5 had treated the sanction as a mere
formality. In support thereof, it is contended that much prior
to the said sanction, several affirmative steps were taken by
the Trust and Respondent No.5, such as securing approval of
the building plans, demolishing of the old building, permanent
alternative accommodation agreements executed and a
Memorandum of Understanding was signed between the Trust
and Respondent No.5 earmarking their respective shares in the
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free-sale area. On this basis, she contends that the LOA dated
nd
22 January 2015 was a valid basis to issue allotment letters
to the allottees and such allotgment is valid, binding and
enforceable against the Petitioner.
22. Ms. Jacob has disputed the legality of the termination of
Development Agreement. She submits that the termination has
not attained finality, as Respondent No. 5 has challenged the
th
arbitral Award dated 12 May 2025 which is pending before
10
this Court . Until then, the Petitioner cannot rely on the
termination to disclaim its obligations arising from the project.
She accordingly submits that the Petitions be dismissed with
costs.
Reasons and conclusion:
23. We have perused the record and have considered
arguments advanced by the learned counsel for the parties.
Although several points have been urged by both the sides, the
main issue in this matter is whether the MahaRERA could
have passed orders directing the Petitioner to discharge the
interest burden of Respondent No.5, when the Petitioner was
10 Arbitration Petition (L) No. 29444 of 2025
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not even impleaded as a party to the original complaint or to
review proceedings. For the reasons to follow, we hold that
MahaRERA could not have done so. Considering the overall
circumstances of the case, the Petitioner is entitled to reliefs
that it has sought in both the petitions. However, since
arguments have been advanced on several issues, we shall
deal with the same, as hereunder.
Question of maintainability of the Writ Petitions:-
24. Ms. Srinivasan has questioned the maintainability of
Writ Petition No. 894 of 2024 on ground that the Petitioner
had availed of the remedies of review and appeal against the
impugned order and thereafter unconditionally withdrew the
Appeal and the review without obtaining liberty to pursue any
other remedy. We find that this objection is misconceived.
25. At paragraph 3(p) of Writ Petition No. 894 of 2024, the
Petitioner had disclosed about the pendency of the appeal and
the review, and had undertaken to withdraw them. Therefore
the subsequent withdrawal of appeal and review proceedings
must be considered to be without prejudice to its rights and
contentions in the Writ Petition. The availability of an
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alternate remedy is a self-imposed restraint and is a matter of
discretion of the Writ Court. The same is not a bar to the
jurisdiction of this Court under Article 226 of the Constitution
of India. The principle underlying Sarguja Transport Service
(supra) is that a litigant who withdraws a writ petition
without permission to institute fresh proceedings on the same
subject matter cannot be permitted to institute another writ
petition on the same cause of action. The principle is directed
against repeated invocation of the same jurisdiction after
abandonment of the claim under the earlier proceeding. As
such, the principle laid down in the said decision does not
apply to the facts of this case. Here, the Petitioner has not
invoked the writ jurisdiction twice. It withdrew the statutory
remedies from other forums to pursue this Writ Petition.
Hence, the withdrawal before other forums cannot be treated
as an abandonment of its claim in the present proceedings.
Availability of alternative remedy is not a bar to a Writ Petition
but the same is merely a rule of prudence where the Writ
Court is expected to exercise its discretion depending on the
facts and circumstances of each case. Writ Petition No. 894 of
2024 is, therefore, held to be maintainable. We may also add
that Writ Petition No. 7618 of 2022, which challenges the
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consequential Distraint Orders arising as a consequence of the
same impugned order, has been pending since 2022 with
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interim protection granted on 29 June 2022. Rule has been
th
issued in both Petitions by order dated 16 October 2025 and
they have been heard finally. Situated thus, relegating the
Petitioner to a statutory remedy at this stage would serve no
practical purpose.
Issue of vires of the RERA Regulation No.36 cannot be decided
in the absence of pleadings
26. The Petitioner, supported by the Trust, has contended
that MahaRERA lacks the power to review its own orders.
Section 53(4)(e) of the RERA Act confers power to review
only to the Appellate Tribunal. The allottees, on the other
hand, rely upon Regulation 36 of the Maharashtra Real Estate
Regulatory Authority (General) Regulations, 2017, and
contend that the subsequent default of Respondent No. 5
justified reconsideration of the earlier order on principles
underlying Order 47 of the Code of Civil Procedure, 1908.
27. In our view, it is unnecessary in the present case to
consider the Petitioner’s challenge to the validity of Regulation
36 in the abstract. There are no pleadings laying the
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foundation for such a challenge to Regulation 36 and no
prayer is made to declare it ultra vires the RERA Act. The
prayers are confined to a writ of Certiorari to quash the
impugned order and the Distraint Order. In Union of India &
Ors. v. Manjurani Routray & Ors. (supra), relied upon by Ms.
Srinivasan, the Hon’ble Supreme Court has held that a party
seeking to challenge the validity of a statutory provision, must
set out grounds in the pleadings and seek reliefs to declare the
provision as ultra vires. . In the present case, there is no such
plea or prayer. Hence, Regulation 36 framed under Section 85
of the RERA Act, is treated as operative in these proceedings.
We accept the submission of Ms. Srinivasan to this limited
extent. Therefore, it is not necessary for us to go into the
question as to whether MahaRERA has an inherent power of
review. For the same reason, the decision in Kapra Mazdoor
Ekta Union (supra), relied upon by Mr. Khandeparkar for the
proposition that a quasi-judicial authority has no power of
review unless the statute confers it will not have any
application to this case. We also note that the order of the
th
Appellate Tribunal dated 30 July 2021, remanding the
Review-cum-Execution Application to MahaRERA, has not
been challenged by any party. MahaRERA was, therefore,
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bound to take up and decide the remanded application.
MahaRERA could not fasten liability on the Petitioner without
impleading it as a party respondent to the Review-cum-
Execution Application.
28. Admittedly, the Petitioner was not a party to the original
th
complaint of Respondent Nos. 3 and 4 dated 6 March 2018,
th
the Review-cum-Execution Application dated 12 June 2018,
the appeal before the Appellate Tribunal or the proceedings on
remand. The cause title of the impugned order itself names
only Respondent No. 5 and the Trust as respondents and refers
to the Petitioner merely as the ‘new promoter’ whose advocate
had appeared. No application was made to implead the
Petitioner, and the Review-cum-Execution Application was
never amended to seek any relief against the Petitioner. On
remand by the Appellate Tribunal, MahaRERA only issued a
notice calling upon the Petitioner to attend the hearing. In our
view, this is not enough. A judgment or order of a court or
quasi-judicial authority, rendered in adversarial proceedings,
binds only the parties to those proceedings. An adjudicating
authority cannot pass orders against a person who is not a
party to the proceeding. Merely because the Petitioner
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appeared through an advocate and filed written submissions
does not change this position. There is no pleading setting out
any case against the Petitioner, including its alleged liability
under Section 2(zk), Section 15 or Section 18 of the RERA
Act. The Petitioner could not effectively respond in a
proceeding between other parties, without knowing as to what
is the nature of liability that would be imposed on it. In our
view, the non-joinder of the Petitioner is fatal and the
impugned order qua the Petitioner is unsustainable on this
ground alone.
The liability to refund and pay interest is that of
Respondent No. 5 alone.
th
29. The original order dated 17 May 2018 is clear and
unambiguous. Respondent Nos. 3 and 4 had sought refund
from Respondent No.5 for the amount purportedly paid
towards allotment of the flat. During the hearing before
MahaRERA, based on the promises of Respondent No.5, the
Respondent Nos.3 and 4 had agreed to accept only the
principal amount, perhaps to put a quietus to the matter.
Respondent No.5 furnished a written undertaking to repay the
amount and the application was disposed of by MahaRERA on
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that basis. The order dated 17 May 2018 did not direct the
Trust to refund any amount. Although the Respondent No.5
was the defaulter, the Respondent Nos. 3 and 4 had filed the
Review-cum-Execution Application claiming additional reliefs
including interest and compensation, registration of an
agreement and an order making the allotment letter binding
on all promoters, including any developer who may takeover
development rights. The claim for interest and compensation
was founded only on the fact that the payment schedule
submitted by ‘the Respondent’, i.e, Respondent No. 5, had not
been honoured. On a careful consideration of the impugned
order, we find the direction to the Petitioner to pay interest is
wholly unsustainable in law for the following reasons:-
th
(i) As per the order dated 17 May 2018, the liability to
pay interest can only be fastened on the party which has
the liability to pay principal sum of Rs 37 lakhs, which
was of the Respondent No.5 alone. If a default is
committed by the Respondent No.5, it cannot be
retrospectively transferred to a third party, who has
entered the field three years after the said order was
passed.
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(ii) At the hearing of 9 July 2018 before MahaRERA,
Respondent No.5 furnished a second undertaking to repay
Rs. 37 lakhs. Thus, Respondent No.5 unequivocally
accepted its liability to repay Respondent nos.3 and 4.
(iii) Shri Jayant Mehta of Respondent No. 5 has also filed
th rd
affidavits dated 10 April 2018 and 23 April 2018
before this Court in the Anticipatory Bail Application,
undertaking to repay the amounts to Respondent Nos. 3
and 4. As such, the Respondent No. 5 admitted and
accepted its liability to repay the Responedent Nos. 3 and
4 on at least three occasions, which has not been
considered in the impugned order.
30. There is a further important circumstance. By its order
st
dated 21 January 2022, the MahaRERA had permitted the
project to be registered in favour of the Petitioner. It recorded
that the change of promoter was taking place pursuant to the
orders passed by this Court in Section 9 proceedings and (as
st
corrected by its subsequent order dated 21 December 2022,
qua the Trust) expressly stated that neither the Trust nor the
Petitioner would not be liable for past liabilities or claims in
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respect of the project. These orders have not been challenged
by any one including Respondent Nos. 3 and 4. The impugned
order, passed shortly thereafter, by another member of
MahaRERA takes a diametrically opposite view without
recording the basis for foisting Respondent No.5’s liability on
the Petitioner. This also demonstrates complete non-
application of mind, thus vitiating the impugned order dated
st
21 March 2022. We cannot accept Ms. Srinivasan’s
submission that a distinction is required to be drawn in this
st
regard on the ground that the registration order of 21
January 2022 was an administrative order, whereas the
impugned order was adjudicatory. During both hearings, the
parties were represented through advocates and the orders
were passed after a contest.
The Petitioner is not liable for interest even under Sections
2(zk), 15 and 18 of the RERA Act
31. The next question is whether the Petitioner is
independently liable under the RERA Act to pay interest in
discharge of the liability of the Respondent No.5. The
impugned order principally relies upon the proposition that
the Petitioner stepped into the shoes of the erstwhile promoter
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and that the erstwhile promoter's liabilities stood transferred
to the landowner and the new promoter. In our view, the
statutory provisions do not support such a conclusion.
32. The definition of a “promoter” under Section 2(zk) of
RERA, is undoubtedly wide. As per the Explanation to the
definition, where the person who constructs and the person
who sells are different persons, both are deemed to be
promoters and are jointly liable as such for the functions and
responsibilities specified under the Act, the rules and the
regulations. The object of the provision is to ensure that a
person who performs the substantive functions of a promoter
does not evade statutory responsibility merely because another
person undertakes a different part of the same transaction.
The principle recognised in Wadhwa Group Housing Pvt. Ltd.
(supra) must be understood in that context. The said
judgment is distiguishable on facts as it deals with the aspect
of liabilities of promoter qua the allottees of the other co-
promoter. It does not deal with the present fact situation
where one development agreement is terminated and another
developer is appointed through a court process on a ‘clean-
slate’ basis. The issue in this matter is not whether the Trust
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and Respondent No. 5 were co-promoters. There is no claim
against the Trust. The issue is whether the Petitioner, who was
appointed pursuant to orders of this Court, is liable for a
refund obligation that was already crystallised against
Respondent No. 5. In our view, the definition of co-promoter
under Section 2(zk) of RERA Act cannot be read as if every
finacial liability of one promoter is automatically transferred
to a subsequent promoter undertaking development of the
same property.
33. Section 15(1) of the RERA Act provides that a promoter
shall not transfer or assign its majority rights and liabilities in
respect of a real estate project to a third party without the
prior written consent of two-thirds of the allottees, excluding
the promoter, and the prior written approval of the Authority.
Section 15(2) provides that, upon a transfer or assignment
permitted under sub-section (1), the intending promoter is
required independently to comply with the pending
obligations under the Act, the rules and regulations made
thereunder, and the pending obligations under the agreements
for sale entered into by the erstwhile promoter with the
allottees. The object of Section 15 is that a promoter cannot
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unilaterally transfer the project and divest itself of its
responsibilities qua the allottees. In our view, Section 15 is not
attracted in the present case for the following reasons:-
(i) Respondent No. 5 has not transferred or assigned
its rights and liabilities in the project to the Petitioner
in the manner contemplated by Section 15. The
Development Agreement between the Trust and
th
Respondent No. 5 was terminated on 15 July 2017.
th th
This Court by its order dated 26 June 2020 and 26
November 2020 passed in the Section 9 proceedings
directed the Court Receiver to take possession of the
property and hand it over to the Trust so that a new
developer could be appointed and the redevelopment
can be completed. The Trust thereafter executed a
fresh Development Agreement in favour of the
th
Petitioner on 7 July 2021. The Petitioner derives its
right through a court-sanctioned process and not from
Respondent No.5. There is no privity of contract
between the Petitioner and Respondent No.5.
MahaRERA waived the requirement of consents of
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allottees for appointing a new developer precisely for
this reason; and
(ii) Even where Section 15(2) applies, it refers to
‘pending obligations’ under the Act and under the
agreements for sale entered into by the erstwhile
promoter. In this case, a refund order, already passed
against Respondent No. 5 on the basis of its own
undertaking, is not a ‘pending obligation’ of the
project which passes to whoever completes the
building. It is the debt of Respondent No. 5 only.
Hence we cannot accept Ms. Srinivasan’s argument
that the Petitioner is liable under Section 15 of the
RERA Act to refund the amount to the allottees.
34. We also find that reliance by Respondent Nos. 3 and 4
on Section 18 of RERA Act is equally misplaced. The scope of
Section 18(1) is wide and inter alia provides that where a
promoter fails to complete or is unable to give possession of
an apartment in accordance with the agreement for sale or
due to discontinuance of its business as a developer for the
reasons specified therein, the allottee who wishes to withdraw
from the project is entitled, on demand, to return of the
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amount received by the promoter in respect of the apartment,
together with the prescribed interest and compensation as
provided under the Act. Thus, Section 18, compensates the
allottee for the use of its money by the promoter who held it.
Here, the money is admittedly retained by Respondent No.5,
despite its promises to repay back the same to Respondent
Nos. 3 and 4. The Petitioner received nothing therefrom. The
th
impugned order erroneously directs interest from 17 May
2018, which includes more than three years before the
Petitioner had any connection with the project. In our view, in
the facts of this case, Section 18 cannot be applied against the
Petitioner.
The remaining submissions:
35. The submission that the Petitioner took over the project
with full knowledge of the existing liabilities and
encumbrances does not also advance the case of Respondent
Nos. 3 and 4. Knowledge of another person’s liability does not
amount to taking over of that liability. There is no contract,
statutory provision or order of a competent authority under
which the Petitioner undertook, or was made liable for, the
refund obligations of Respondent No. 5.
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36. We are also unable to accept the submission of Ms.
Jacob to the effect that the Respondent No. 5 spent about Rs.
32 crores on construction and that the Petitioner and the Trust
cannot keep the benefit of that construction while disclaiming
its liabilities. That claim, if any, lies between Respondent No. 5
and the Trust, and is the subject of the arbitral Award dated
th
12 May 2025 and the pending challenge to it. It cannot be
used to foist a refund obligation owed by Respondent No. 5 to
Respondent Nos. 3 and 4 upon the Petitioner. Moreover, the
party that received and kept Rs. 37 lakhs since 2015 is
Respondent No. 5 itself. Having repeatedly undertaken before
MahaRERA and before this Court to refund the amount,
Respondent No. 5 cannot now argue that someone else should
pay either the principal amount or the interest that has
accrued because of its own defaults.
37. Ms. Jacob has submitted that the termination of the
Development Agreement has not attained finality, since
Respondent No. 5’s challenge to the arbitral Award is pending
before this Court. Our conclusion does not depend upon the
correctness of the termination. As noted above, the Petitioner
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was appointed after this Court, by its orders dated 26
th
November 2020 and 11 December 2020, directed the Court
Receiver to take possession of the property and hand it over to
the Trust to appoint a new developer. Whatever be the
outcome of the challenge to the arbitral Award, it will govern
the inter se rights of the Trust and Respondent No. 5.
Therefore, viewed from any angle, the pending arbitration
proceedings does not make the Petitioner liable for the refund
obligation of Respondent No. 5 towards Respondent Nos. 3
and 4.
38. In view of the above discussion, it is not necessary for us
to deal with (i) Mr. Khandeparkar’s contention that the Letter
th
of Allotment for a flat on the 9 floor was invalid because the
Commencement Certificate covered construction only up to
th
the 8 floor; (ii) the Trust’s contention that the Letter of
Allotment, having been issued before the sanction of the
Charity Commissioner under Section 36 of the Maharashtra
Public Trusts Act, 1950, does not bind it; (iii) Ms. Jacob’s
contrary contention that the Section 36 sanction was a mere
formality; or (iv) whether the Trust is a co-promoter qua the
allottees of Respondent No. 5. These questions concern the
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rights of Respondent Nos. 3 and 4 against Respondent No. 5
and the Trust. The impugned order does not decide them
against the Trust. Therefore, these questions are left open to
be decided in an appropriate proceedings.
The Distraint order and the recovery warrant under Section
180 of the MLRC against the Petitioner’s properties cannot be
sustained.
39. Writ Petition No. 7618 of 2022 challenges the Distraint
rd th
Orders dated 23 March 2022 and 30 May 2022 passed
under Section 180 of the MLRC, pursuant to which the
Petitioner's bank accounts were attached and frozen. There is
no doubt about the powers of the revenue authorities to
recover an amount as arrears of land revenue, or to adopt
measures under Section 180 of the MLRC. However, as has
been held above, the impugned order foisting liability upon
the Petitioner is held to be unsustainable. Therefore, the
attachment and freezing orders cannot independently survive
when the impugned order is set aside.
Conclusion:
40. For all the above reasons, the Writ Petitions are
allowed and the following reliefs are granted:
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WP 894 of 2024
“15.a. That this Hon'ble Court be pleased to issue a writ of
certiorari or any other appropriate writ, order or direction
calling for the records pertaining to the Impugned Order
st
dated 21 March 2022 passed by Respondent No. 2 and
after perusing the legality, veracity and/or constitutionality
of the same, this Hon'ble Court be pleased to quash and set
aside the Impugned Order passed by Respondent No. 2;
15(a) (i) That this Hon'ble Court be pleased to issue set
th
aside the order dated 26 November 2024 passed by the
Hon'ble Adjudicating Officer in the execution proceedings.”
WP 7618 of 2022
“a. That this Hon'ble Court be pleased to issue a writ of
certiorari or any other appropriate writ, Order or direction
calling for the records of pertaining to the Impugned
Orders and after perusing the legality, veracity and/or
constitutionality of the same. this Hon'ble Court be pleased
to quash and set aside the Impugned Orders passed by the
Respondent Nos. 2 and 3;
b. That this Hon'ble Court be pleased to direct Respondent
No. 9 to remove attachment and other consequent actions
of the Respondents Nos. 2 and 3 with respect to the
Petitioner's Bank Account bearing no. 122100101069 and
122100101090.”
st
41. It is clarified that the impugned order dated 21 March 2022
and the recovery warrants are quashed only in sofar as they seek
recovery from the Petitioner. This judgment does not absolve
Respondent No. 5 of its obligations under the undertakings to repay
Respondent Nos. 3 and 4 recorded by MahaRERA and by this Court
in the Anticipatory Bail Application and it is open for Respondent
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Nos. 3 and 4 to pursue their remedies against Respondent No. 5
(and/or the Trust, if maintainable), for recovery of all their dues,
including interest, in accordance with law. All rights and contentions
of Respondent Nos. 3, 4 and 5 are kept open in this regard.
42. Rule is made absolute in the above terms. In view of the
disposal of the Writ Petitions, pending Interim Applications, if any,
also stand disposed of.
(GAUTAM A. ANKHAD, J.) (SUMAN SHYAM, J.)
BHARAT
DASHARATH
PANDIT
Digitally signed
by BHARAT
DASHARATH
PANDIT
Date: 2026.11.05
20:38:12 +0530
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