PER: Dr. K. SHM,II, MEMBER (A)

1. Above appeals have been filed under The Maharashtra Real Estate (Regulation and Development) Act, 2016 (in short, the), against the order dated 3d October 2019 passed by the learned l.4embers of Maharashtra Real Estate Regulatory Authority (hereinafter referred to as '4ahaRERA') in a Suo-moto enquiry No.1712018 initiated and conducted by MahaRERA, on the complaint of respondent - Mumbai Grahak Panchayat (for short, 'MGP').

2. Appellants are online web portals (in shoft, web portals), who are conducting various digital business activities on electronic platforms /rfel alia in real estate sectors.

3. Above appeals arise out of common facts and have raised identical questions of law. Accordingly, by consent, all appeals herein are heard together and are disposed of by this common judgement.

4, FACTUAL MATRIX:

a. MGP flled instant complaint before MahaRERA, alleging that various web-portals are advertising real estate projects to facilitate sale/purchase transactions of real estate units. it was alleged that such portals fall under the deflnition of real estate agent under Section 2 (zm) of the. Therefore, they are required to be registered as real estate agent under Section 9 of the. Accordingly, MGP prayed to MahaRERA for directions to all such portals to register under the

b. Pursuant to this, MahaRERA issued Suo-moto notices for hearing to several online portals dealing with real estate advertisements related activities. Considering the importance and farreaching consequences of the issue, public notice came to be issued by MahaRERA to invite those, who were interested to appear and make submissions/representations. In response, organizations like National Real Estate Development Council (NAREDCO), CREDAI-MCHI, and National Association of Software and Service Companies (NASSCOI'4) also appeared in, the proceedings. On appearance, web portals filed their detailed replies and written submissions giving information l'fer atia on thei business models, revenue sources, terms and conditions for use of their portals and denied their liability to register as real estate agent under the relevant provlsions of the.

c. After hearing all the parties, MahaRERA passed the impugned order on 3'd October 2019 and held inter alia lhal "To conclude, we hold that the portals whose activities are simply confined to advertisements defined by section 2(b) of RERA, need not register themselves as real erta agents, provided in disclaimer, they declare that they are simply adveftising agencies and advise the viewers to cross check the information from other sources including RERA websites

Other portalt whtch carry the function ofrealestate agent as discussed above, need registration. Such digital portals are directed to register themsetves with MahaRERA within next two months, if thet activities are spread within the teffitorialjurisdiction of it.

d. Aggrieved by this common impugned order dated 3'd October 2019, web portals have preferred the lnstant appeals to challenge the legality, propriety and correctness of this order and sought teliefs inter ar;, to quash and set aside the impugned order and to dismiss the complaint dated 04th July 2018 filed by MGP'

5, Heard learned counsel for parties.

6. In their respective submissions, the webportal Appellants have urged various contentions to assail the impugned order on merits. For the sake of brevity, their contentions inter alia are collectively recorded as hereunder;

a. Impugned order is vague, broad, general in nature and does not ecific observations/directions as to whether, web portals fall in the category of real estate agents to register under the and are left with thelr own interpretations. Therefore, web portals may risk levy of penalty for purported violation of the order believing that they are not liable to register themselves as agents. Vague nature of the order may give opportunity to anyone to complain against web portals for initiating prosecutlon for its alleged non-compliance'

b. Web portals follow diverse business models under which they undertake only advertisements of the projects, which are under Section 2(b) of theand include publicity i.e., providing information to public' These portals do not have control over contents of advertisements and do not negotiate between the parties. Imparting information to public about the project cannot put these portals under the definition of real estate agents calling for their registration.

c. Web poftals neither 'introduce' parties to sale transactions nor 'facilitate' sale of real estate units and do not receive any'remuneration' as observed by the Authority. Web portals do not perform functions of agents as envisaged under Section 10 of theand do not indulge in negotiation, price fixation, conclusion of contract etc betlveen pafties as contemplated in definition under Section 2 (zm) of RERA' Additionally, the word 'facilitation' is not part of the definition of real estate aqent. Still, web portals are required to be registered as agent as Per the imPugned order.

d. While passing the impugned order, business model of a particular web portal i.e,, squareyards.com as mentioned in the impugned order including in its para 27, is taken as a reference point by taking it as a generalized view and is made uniformly applicable to all web portals'

It has been done behind the back of Appellants after the matter was closed for order and no opportunity is granted to Appellants to submit their say with reqard thereto. Also, no specific reasons are assigned for doing so. This aspect of the order has weighed heavily against web porta ls,

e. Impugned order passed cannot stand scrutiny of law as it cannot override the provisions of the Contract Act. Provisions of the Section 88 of theare in addition to the Contract Act and not in derogation thereof.

f. With above submissions. it is pleaded that if registration is not done as directed by the Authority, the webpoftals will be exposed to grave Ioss, harm and prejudices, having legal and financial consequences'

7, In addition to above, during the course of the arguments, learned counsel for web poftals of the appeal nos. S-1 and S-2 raised a preliminary objection challenglng the very sustainability of the impugned order. They submitted that complaint proceedings before MahaRERA were closed for order/s after conclusion of arguments of all the parties on 8th February 2019. They pointed out that the common impugned order was announced only on 3'd october 2019 after an unexplained inordinate delay of more than 6 months of time interval from the date of closure of proceedings' Learned counsel contended that common impugned order having been passed 6 months after the proceedings were closed is not sustalnable in the eyes of settled law' To substantiate their contentions, reliance is placed by webportals on judgments of the Hon'ble Supreme Court in cases of (i) R'C' SHARMA vs. uNroN oF INDIA & oRs' t(1976) 3 SCC s741, (ii) ANIL RAr VS. STATE OF BIHAR t(2001) 7 SCC 3181 and ludgments of the Hon'ble Bombay High Court in cases of (iii) SHANTILAL IAIN vS' UNION OF INDIA (2OrO SCC Online Bom 2162) and (iv) ORYS FISHERIES PVT. LTD. Vs' UNION OF INDIA (2010 13 SSC 427)'

8, Learned counsel for web portals further submit that common impugned order is also not sustainable on the ground that certain information concerning squareyards.com was not the part of the record of the above proceedings before MahaRERA and despite this, the same has been utilised and considered after the conclusion of arguments while passinq the impugned order without making the aforesaid information available to web portals and without giving opportunity to web portals to submit their response thereon. it is argued that as per the settled position of law, courts are not entitled to invite and consider any other material after the matter has been closed for order. It is contended that MahaRER'q has relied upon the said information unilaterally in violation of principle of natural justice which has weighed heavily against web poftals Learned counsel contended that on this ground also, the impugned order is not legally maintainable'

9. In view of the contentions as raised in Paras 7 and 8 above, learned counsel for web portals submitted that since the impugned order cannot be legally sustained, the matter deserves to be remanded to lYahaRERA for decision afresh. Considering the aforesaid submissions, it was decided to first consider preliminary objectlon challenging the sustainability of impugned order passed 6 months after closure of the complaint proceedings after hearing learned counsel for MGP before proceeding fufther in the apPeals.

10, Accordingly, learned counsel for MGP was heard at length During arguments he, without denying the said delay in delivery of the impugned order after the conclusion of the arguments before I'lahaRER'q, submitted as under;

a. It is not appropriate to hear such preliminary technical issues raised by learned counsel for web portals at this stage' These do not constltute core part of the dispute and if undue consideration is given to the same, the real issues will get side-lined and also deflected from core issues' Accordingly, appeals need to be decided on their merits without relegating the parties to MahaRERA for de novo consideralio^ '

b. If matter is remanded, it will cause further delay and the alleged ground of more than 6 months delay in delivery of impugned order will get fufther aggravated,

c. Remanding the matter will be contrary to the object and spirit of the' more particularly the provisions of Sections 29 (4) and 44 (5), which prescribe expeditious disposal of appeals within 60 days'

d. Proceedings under the are summary in nature and therefore provisions of Civil Procedure Code are not applicable. Judgments referred by learned counsel for appellants as above are not relevant and not applicable to the instant appeals.

e. Delay in pronouncement of the impugned order is not due to fault of the parties. Stated information relating to the squareyards com ls nothing but the matter of fact and is only taken as a reference to lay down criteria for registration of webportals, which fall within the ambit of real estate agents as defined under the relevant provisions of RERA' Conclusions in the impugned order are not entlrely dependent on the said material' Rather' the conclusions recorded in the impugned order stand on their own leqs'

f. All the parties have been adequately heard and provided with enough opportunity by MahaRERA before passing the impugned order.

g. Considering the aforesaid submissions, the preliminary objections as raised by Appellant webportals be outrightly rejected and the Appeals be decided expeditiously on merits.

11. Upon hearing the parties, after going throuqh the material on record and on perusal of the impugned order, the only point that arises for our determination at this stage is, whether in view of the preliminary objection relating to delay in passing the impugned order dated 3'd October 2019 is sustainable in law To this, our finding is in the negative for the reasons to follow.

REASONS

12. Having considered the preliminary objection of Appellants regarding delay of more than 6 months in passing of the order, there is no denying the fact, as is evldent from the record, that proceedings in above matters including the conclusions of arguments by parties before MahaRERA were closed on 8th February 2019. It is also not in dispute that the impugned order was pronounced on 3'd October 2019, i.e. after more than 6 months from the date of reserving the matter for judgment. The said delay is also admitted by the l4GP, In view thereof, the Appellants have contended that impugned order is not sustainable as per the view held by the Hon'ble Apex Court and the Hon'ble Bombay High Court in various judgments cited supra.

13. In this context, the relevant abstracts from the said judgments refened by web portals to substantiate their contentions regarding sustainability of the impugned order are reproduced hereunder for consideration;

(a) In the case of R.C' SHARMA VS. UNION OF INDIA & ORS' [(1976) 3 SCC 5741 The Hon'ble Apex Court has held as under;

"Para 12........The Civil Procedure Code does not provide a time limit for the period between the hearing of arguments and the delivery of a judgnent, Nevefthetess, we think that an unreasonable delay between hearing of arguments and detivery of a iudgment, unless explained by exceptional or extraordinary circumstances, is highly undesirable even when written arguments are submitted' It is not unlikely that some points which the litigant considers important may have escaped notice' But what is more important is the titigants must have complete confidence in the results of litigation. This confidence tends to be shaken if there is excessive delay between hearing of arguments and delivery ofiudgment9 Justice, as we have often observed, must not only be done but must manifestly aPqear to be done."

"43. In Institute of Chaftered Accountants of India v' L'K' Ratna and others, (1986) 4 SCC 532 it has been hetd: "" 'after the blow suffered by the initiat decision, it is difficult to contemplate complete restitution through an appeltate decision' Such a case is unlike an action for money ot recovery of propeiy, where the execution of the trial decree may be stayed pending appeat, or a successful appeal may result in refund ofthe money or restitution of the property, with appropriate compensation by way of interest or mesne profits for the period of deprivation' And' therefore, it seems to us, there is manifest need to ensure that there is no breach offundamental procedure in the original proceeding and to avoid treating an appeat as an overall substitute for the original proceeding "

(b) The Hon'ble Bombay High Court in the case of SHANTILAL JAIN VS. UNION OF INDIA [2010 BHC Ontine Bom 2162] has hetd that;

"Para 3. This Court, prlna facie-, thought that the impugned order was passed by the Customt Excise and Seruice Tax Appellate Tribunal (Tribunal for shott) practically after a period of six months from the date of hearing, as such it should be set aside without examining merits or demerits thereof and the appeal be restored to the fite of the Tribunal for de novo hearing and decision afresh in view of the judgment of the Apex Court in the case of R.C Sharma v, llnion of Indi4 (7976) 3 SCC 574 and Anit Rai v, State Of Aihar., 2OOg (233) E.L.r fi (s.c) : 2oo9 (13) s.r.R. 46s (s.c) : (2oo7) 7 SCC 378 : AIR 2OO7 SC 3773 followed by this Court in the case of Devang Rasiklal Vora v. Union of India / 2OO3 (l1g) E.L,T jO (Bom.); wherein it was he/d that the judgment passed after considerable gap of time from the date of hearing was /iable to be set aside observing that justice should not only be done but must manifestly appear to be done."

In Para 8 of the above judgment, it is further observed that

"...... The Apex Court ln the case of R.CSharma v. union of India (supra) was pleased to hold that delayed delivery of justice results in manlfest injustice and results in denta/ of justice. In the very same appeaL it was argued that some contentions raised by the appeltant before the Tribunal were not considered, In this view of the matter, without examining merits or demerits of the impugned order, the said order is being set aside on the ground of delayed detivery of judgment /eaving all other questions open for being argued afresh before the Tribuna/."

14, It is crystal clear from the above pronouncements relied upon by webportals that the timely delivery of judgments after conclusion of arguments is held to be of paramount significance. Accordingly, as per the view held as above by the Higher Courts/ delayed delivery of judgment is held to be denial of justice making the order delivered after a period of 6 months, unsustainable even without examining the merits and demerits of the impugned order. The fact that the impugned order in the instant Appeals is passed after more than 6 months of closing the arguments of the parties and reserving the same for order. Therefore, the same is clearly hit by the ratio as laid down in the above cited pronouncements. We, therefore find substance in the preliminary objection raised by the Appellants herein and cannot accept the contentions of the MGP in view of the categorical view held on the issue by the Hon'ble Bombay High Court (supra). In that view of the matter, in our considered view, the impugned order cannot be sustained. Therefore, the matter is fit to be remanded to the f4ahaRERA to be heard and decided afresh by giving sufflcient opportunity to the concerned parties. Hence the following order:-

ORDER

a) Captioned Appeal Nos. 5-112079, 5-212019, 5-312079 and 5-4/2019 are paftly allowed.

b) Common impugned order dated 3'd October 2019 passed by l'4ahaRERA in Suo l4oto enquiry No.1712018 initiated and conducted by tvlahaRERA is set aside.

c) The matter is remanded to MahaRERA to be heard de novoand decided afresh as expeditiously as possible in accordance with the law.

d) All rights and contentions of the parties are kept open.

e) Parties to bear their own costs.

f) Copy of this order be sent to lvlahaRERA and respective parties as per the provisions of the Section 44 (4) of theof 2016.