Sumant Kolhe, Member (J)

1. Appellants are buyers/Allottees. Respondents are builders/Promoters. I will refer the parties as Pro motors and Allottees. Out of eleven appeals, nine are directed against impugned order dated 09.01.2019 and two are directed against impugned order dated 25.01.2019. Both impugned orders are similar and identical. All the appeals are heard together and are being decided by this common judgment.

Details of the Project

2. "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 said two towers.

3. Tower ONE ICC consist of 77 habitable floors with three podium levels and one ground floor level and four basements. Tower two ICC consists of 74 habitable floors with 5 podium levels and one ground floor level with 4 basements.

4. Project is extremely luxurious project, with super structures that rise above the skyline of Mumbai with luxurious facilities, world class infrastructure, amenities, 8 acres 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.

Publicity of the Project

5. Promoters had published the project by issuing broacher, advertisement, prospectus and thereby gave assurances regarding details of the building/flats, Apartments, external amenities, internal amenities inside the flat, open spaces etc.

Booking & allotment of Flats

6. On the basis of such representation and assurances of the promoter, allottees submitted booking application forms, for allotment of their respective flats in building One ICC and Building Two ICC respectively in the year 2012-2013, Terms and conditions were duly incorporated in booking application forms. Promoters issued Booking confirmation letters. Thereafter Promoter issued allotment letters. Terms and condition of allotment are mentioned in those letters. A list of amenities to be provided by the promoter inside the Apartments was also separately attached. Apart from the description of the flats, particulars in respect of consideration to be paid and earnest money to be paid were also given in allotment letters. Promoters had expressly represented to the Allottees that the possession of the flats/apartments would be given in 2017.

Scheme of Allotment

7. Flats were allotted under 20:80 scheme under which 80% consideration is to be paid by the allottees at the time of possession of the flat. Allottees have paid approximately 19% of the consideration of their respective 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 and Service Tax and premium of Rs. 5000/- per sq. meter was also paid by the allottees.

Project registered and time line extended

8. 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 unilaterally 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.

Complaint U/s. 31 of RERA by Allottee

9. Project is governed by RER Act. Rights and Liabilities of allottees and promoters are governed by the of RER Act, As the promoter failed to give the possession of the flat on or before the year 2017 and also failed to render amenities as assured to the allottees and committed breach of Section 12 and section 18 of RERA, complaints were filed by the allottees under Section 31 of MahaRERA. Allottees had prayed in the said complaints that promoter be directed to cancel the allotment letters and to refund the entire amount paid by the allottees along with the interest and compensation for breach of Section 12 and Section 18 of RERA.

Decision of complaints with reasons

10. Complaints were heard and decided by MahaRERA in presence of both the parties. MahaRERA passed common impugned order dated 9.01.2013 by deciding 13 complaints and also passed common impugned order dated 25.01.2020 by deciding four complaints. Both impugned orders are identical and similar. Complaints were disposed of by advising the parties to execute and register agreement for sale as per Section 13 of RERA and rules and regulations thereunder within 30 days and in the alternative, MahaRERA directed that if the allottees intent to withdraw from the project then such withdrawal would be guided by the terms and conditions of the allotment letters. 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 2012-13 i.e. much prior to the enactment of RERA on 1.5.17. Above observation of MahaRERA is made by referring certain paras of Neel Kamal Realtors judgment of Hon'ble Bombay High Court. Impugned order is silent on the point of application or non-application of Section 18 of RERA, while alternatively allowing allottees to withdraw from project subject to terms and conditions of Allotment letters.

Challenge in Appeal

11. Feeling aggrieved by the impugned order passed by MahaRERA, allottees have preferred appeal by challenging the proprietary correctness and legality of the orders.

Hearing of appeal

12. Heard all the Learned counsel for the allottees and all the Learned Counsel for the respondent.

Perused different written submissions filed by Allottees and written submissions filed by the Promoter.

Perused both impugned orders and documents filed by both the parties on record. Some case laws of Hon'ble High Court and Hon'ble Apex Courts are submitted. Perused the case laws. Read Section 12 and 18 and also Section 13 of RERA.

Points for determination

13. The following points arise for my determination.

POINTS:-

i) Whether Section 12 of RERA applies prospectively or retrospectively or retroactively

ii) Whether promoter committed breach of Section 12 and Section 18 of RER Act

iii) Whether allottees are entitled for refund along with interest and compensation from the promoter, if yes what is the rate of interest

iv) What order

Findings

My findings on the above points for the reasons stated below are as under:-

FINDINGS:-

14. i) Retroactively,

ii) Affirmative.

iii) Entitled for refund and interest only. Rate of interest is as per rule 18.

iv) As per final order.

REASONS

Point No. 1 to 3

Project falls under RERA

15. 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.

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 19% of the total price which is approximately on or above Rs. 2 Crore to the promoter for their respective fiats. 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 accordingly paid about Rs. 2 crores for their respective flats to the promoter. According to the allottees, possession was assured to be given on or before the year 2017. Allottees have further made out the case that the project was incomplete even in the year 2017 and promoter failed to deliver the possession of the flats as agreed in the year 2017 and moreover, promoter committed breach of the assurances given to the allottees in the broacher, prospect and advertisement of the project. Allottees preferred complaint against the promoter for cancellation of the allotment and for refund of the amount paid to the promoter along with interest and compensation.

Order of MahaRERA

17. 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 reliefs of refund, 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 & Promoter which took place prior to enforcement of RERA.

Argument of Allottees

18. 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.

Arguments of Promoters

19. Learned Counsel for the Promoter argued that retrospective application of any law depends upon the nature of such law. Whether the law is substantial or procedural and declaratory. RERA is substantive law and provisions of RERA cannot be made retrospectively applicable. He referred following case laws:-

(2012) 7 Supreme Court Cases 462 [LQ/SC/2012/555] Purbanchal Cables and Conductors Pvt. Ltd. Vs. Assam State Electricity board decided 20.7.2012. 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"

Ratio is laid down by Hon'ble Supreme Court in G.J. Raja Vs. Tejraj Surana in Cr. Appeal No. 1160 of 2019 decided on 30/7/2019 on the point of application of section 143(A) as per amendment in 2018 (power to direct interim compensation) to the cases under section 138 of N.I. Act, Their Lordship have observed that,

"such amendment apply only to offence giving rise to case after 2018 and it cannot be made applicable retrospectively"

In : (2015) 1 Supreme Court Cases Commissioner of Income Tax (Central)-l New Delhi Vs. Vatika Township Pvt. Ltd. Under section 158 B of Income Tax on the point as to whether it can be made retrospectively applicable, Apex Court 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."

In (1994) 4 Supreme Court Cases 602 [LQ/SC/1994/591] Hitendra Vishnu Thakur Vs. State of Maharashtra.

"As result of section 20(4)(bb) of Terrorist and Disruptive Activities (Prevention) Act, 1987, while considering the effect of modified application of provisions of Code, where under period of filing challan or chargesheet could get extended Govt. considered issue about retrospective operation of such amended provision. On background of Designated Court held that amendment would operate retrospectively and would apply to pending cases in which investigation was not complete on the date on which amendment Act came into force and challan had not till that time filed in court."

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.

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.

iii) Every litigant has a vested right In substantive law but no such right exists in procedural law.

iv) A procedural statute should generally speaking be applied retrospectively where result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished.

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.

Above mentioned ratios are considered in Neel Kamal Realtor case by Hon'ble Bombay High Court.

2017 S.C.C. 9302 Neel kamal Realtor case

20. Now let us tern to landmark decision of Hon'ble Bombay High Court in Neel Kamal Realtors case. Constitutional validity of certain provisions such as S. 3, 4, 5, 7, 8, 11, 14, 15, 16, 18, 20, 27, 40, 43, 50, 53 etc. of RERA was challenged. As per para-81 of the said case law constitutional validity of these provisions was challenged on following three grounds.

(i) Retrospective or retroactive application of certain provisions

(ii) Unreasonable restrictions placed by certain provisions contrary to Article 19(1)(g) and Violation of Article 14 of Constitution of India.

(iii) Absence of a judicial member in authority constituted under section 22 and definition of the judicial member as defined under section 46 of RER Act.

21. If we carefully peruse the observations made by Their Lordships on the point of retrospective or retroactive or prospective applicability of certain provisions of RERA, it is seen that section 18 of RERA is retroactively applicable. There was no challenge to provision of section 12 of RERA in Neelkamal Realtors case.

Important observations in case law

22. The concept of retroactive or retrospective applicability is discussed in para 121 of the said case law as under,

121. The thrust of the argument of the learned Counsel for the petitioners was that provisions of Sections 3(1), 6, 8, 18 are retrospective/retroactive in its application. In the case of Bank's staff Union Vs. Union of India and Ors. the Apex Court observed in paras 20 and 21 as under:

20. Judicial Dictionary (13th Edn.) K.J. Aiyar, Butterworth, p. 857, states that the word "retrospective" when used with reference to an enactment may mean (i) affecting an existing contract; or (ii) reopening up of past, closed and completed transaction; or (iii) affecting accrued rights and remedies; or (iv) affecting procedure. Words and Phrases, Permanent Edn., Vol. 37-A, pp. 224-25, defines a "retrospective or retroactive law" as one which takes away or impairs vested or accrued rights acquired under existing laws. A retroactive law takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transaction or considerations already past.

21. In Advanced Law Lexicon by P. Ramanath Aiyar (3rd Edition, 2005) the expressions "retroactive" and "retrospective" have been defined as follows at paged 4124 Vol. 4:

"Retroactive-acting backward; affecting what is past. (Of a statute, ruling, etc.) in the past. Also termed retrospective. (Black's Law Dictionary, 7th Edn. 1999) "Retroactivity" is a term often used by lawyers but rarely defined. On analysis it soon becomes apparent, moreover, that it is used to cover at least two distinct concepts. The first, which may be called 'true retroactivity', consists in the application of a new rule of law to an act or transaction which was completed before the rule was promulgated. The second concept, which will be referred to as "quasi retroactivity', occurs when a new rule of law is applied to an act or transaction in the process of completion.....The foundation of these concepts is the distinction between competed and pending transactions..." (T.C. Hartley, The Foundations of European Community Law 129 (1981).

"Retrospective - looking back; contemplating what is past.

Having operation from a past time.

'Retrospective' is somewhat ambiguous and that good deal of confusion has been caused by the fact that it is used in more senses than one. In general, however the courts regard as retrospective any statute which operates on cases or facts coming into existence before its commencement in the sense that it affects even if for the future only the character or consequences of transactions previously entered into or of other pas conduct. Thus, a statute is not retrospective merely because it affects existing rights; nor is it retrospective merely because a part of the requisite for its action is drawn from a time and antecedents to its passing (Vol. 44 Halsbury's Laws of England, Fourth Edition, Page 8 of 10-page 570 para 921)"

Provisions of RERA to some extent are retroactive.

122. We have already discussed that above stated provisions of the RERA are not retrospective in nature. They may to some extent be having a retroactive or quasi retroactive effect but then on that ground the validity of the provisions of RERA cannot be challenged. The Parliament is competent enough to legislate law having retrospective or retroactive effect. A law can be even framed to affect subsisting/existing contractual rights between the parties in the larger public interest. We do not have any doubt in our mind that the RERA has been framed in the larger public interest after a thorough study and discussion made at the highest level by the standing Committee and Select Committee, which submitted its detailed reports.

23. Similarly, Their Lordships have observed in para-256, 257 and 258 of the case law as under:

Liability under agreement is not absolved

256. Section 4(2)(1)(c) enables the promoter to revise the date of completion of project and hand over possession. The provisions of RERA, however, do not rewrite the clause of completion or handing over possession in agreement for sale. Section 4(2)(1)(C) enables the promoter to give fresh time line independent of the time period stipulated in the agreements for sale entered into between him and the allottees so that he is not visited with penal consequences laid down under RERA. In other words, by giving opportunity to the promoter to prescribe fresh time line under Section 4(2)(1)(C) he is not absolved of the liability under the agreement for sale.

Interest is not penalty

257. Section 18(1)(b) lays down that if the promoter fails to complete or is unable to give possession of an apartment due to discontinuance of his business as a developer on account of suspension or revocation of the registration under the or for any other reason, he is liable on demand to the allottees, in case the allottee wishes to withdraw from the project, without prejudice to any other remedy available, to return the amount received by him in respect of that apartment with interest at such rate as may be prescribed in this behalf including compensation. If the allottee does not intend to withdraw from the project he shall be paid by the promoter interest for every month's delay till handing over of the possession. The requirement to pay interest is not a penalty as the payment of interest is compensatory in nature in the light of the delay suffered by the allottee who has paid for his apartment but has not received possession of it. The obligation imposed on the promoter to pay interest till such time as the apartment for use of money.

258. The object of Section 18 is to recompense an allottee for depriving him of the use of the funds paid by him. The promoter who has received money from the allottee but has failed to adhere to his contractual or statutory obligations, cannot claim that he is entitled to utilize the monies without paying any interest with respect thereto to the allottee.

24. Thus, it can be said that the promoter gets an opportunity to prescribe fresh time line of completing project at the time of registration. However, Promoter is not absolved of liability of the agreement for sale. Their Lordship have specifically observed that provisions of RERA do not rewrite the clause of completion or handing over in agreement for sale. Their Lordships have also observed that obligation to pay interest for delayed possession is not a penalty as payment of interest is compensatory in nature.

25. Para-259 of the case law reads as under:

Liberty to Promoter to claim frustration

259. A perusal of Section 18 indicates that payment of interest including compensation or interest, as the case may be, is payable on account of default committed by the promoter. Although this Section does not consider a situation where the promoter is unable to complete or handover possession for no fault of his own, it would be open to him to claim frustration in such a case and return the money to the allottee with interest thereby stopping the interest that is to be paid till handing over possession. The provisions of RERA ensure that the allottees' money is not misused or unreasonably retained by the promoter.

Section 18 is compensatory in nature

26. Moreover, Their Lordship have observed in para-261 as under:

261. In my opinion Section 18 is compensatory in nature and not penal. The promoter is in effect constructing the apartments for allottees. The allottees make payment from time to time. Under the provisions of RERA, 70% amount is to be deposited in a designated bank account which covers the cost of construction and the land cost and has to be utilized only for that purpose. Interest accrued thereon is credited in that account. Under the provisions of RERA, 30% amount paid by the allottees is enjoyed and used by the promoter. It is, therefore, no unreasonable to require the promoter to pay interest to the allottees whose money it is when the project is delayed beyond the contractual agreed period. Even under Section 8 of MOFA on failure of the promoter in giving possession in accordance with the terms of the agreement for sale, he is liable to refund the amount already received by him together with simple interest @ 9% per annum from the date he received the sum till the date the amount and interest thereon is refunded. In other words, the liability under Section 18(1)(a) is not created for the first time by RERA.

27. Thus, Their Lordships have already laid down that Section 18 of RERA which is of compensatory nature is retroactively applicable. Their Lordships have also observed that though the provisions of RERA are not retrospective in nature, they may to some extent having a retroactive or quasi retroactive effect. Their Lordship have further laid down that the parliament is competent enough to legislate law having retrospective or retroactive effect. A law can be framed to affect of existing or subsisting contractual right between the parties in larger public interest. We do not have any doubt in our mind that the RERA has been framed in the larger public interest after thorough study and discussion made at higher level by the Standing Committee and Section Committee.

Section 12 of RERA is also compensatory

28. Section 12 of RERA is also compensatory in nature. All the above observations made by Their Lordships in observing that Section 18 of RERA is applicable retroactively are equally applicable to section 12 of RERA and we can say that Section 12 of RERA is also retroactively applicable.

Background of enactment of Section 12 of RERA

I would like to refer to observation of Their Lordships in Neel Kamal Realtors case as under:

Para-82. The Union of India in its affidavit-in-reply submitted that a Writ Petition was filed in the Supreme Court of India by one Sanrakshak. The Protector vs. Union of India & Ors. being Writ Petition (L) No. 112 of 2007, praying, inter alia for framing national guidelines in respect of issuance of advertisements by developers, to require them to mandatorily provide all concerned documents so that the claims in the advertisements could be counter-checked of prevent innocent flat purchasers from being defrauded. It is averred in the reply that the Supreme Court, during the course of legislation for regulating the contractual obligations of buyers and sellers in the real estate sector. The Supreme Court had kept the matter pending to monitor progress of the said legislation and disposed of the said writ petition only after the passage of the RERA in terms of order dated 2/5/2016 on a statement made by the learned ASG to the Apex Court. The UOI further refers to order passed by the Competition Commission of India on 12/8/2011 in the matter of DLF and Ors. vs. Belaire Owner's Association (Case No. 19 of 2010), wherein it was observed as under:

"The absence of any single sectoral regulator to regulate the real estate sector in totality, so as to ensure adoption of transparent & ethical business practices and protect the consumers, has only made the situation in the real estate sector worse."

Part of the requisites for operation of the statute were drawn from a time antecedent to its passing did not make the statue retrospective so long as the action was taken after the came into force.

Para-86. On behalf of the petitioners it was submitted that registration of ongoing project under RERA would be contrary to the contractual rights established between the promoter and allottee under the agreement for sale executed prior to registration under RERA. In that sense, the provisions have retrospective or retroactive application. After assessing, we find that the projects already completed are not in any was affected and, therefore, no vested or accrued rights are getting affected by RERA. The RERA will apply after getting the project registered. In that sense, the application of RERA is prospective in nature. What the provisions envisage is that a promoter of a project which is not complete/sans completion certificate shall get the project registered under RERA, but, while getting project registered, promoter is entitled to prescribe a fresh time limit for getting the remaining development work completed. From the scheme of RERA and the subject case laws cited above, we do not find that first proviso to Section 3(1) is violative of Article 14 or Article 19(1)(g) of the Constitution of India. The parliament is competent to enact a law affecting the antecedent events. In the case of State of Bombay vs. Vishnu Ramchandra (Supra), the Apex Court observed that the fact that part of the requisites for operation of the statute were drawn from a time antecedent to its passing did not make the statue retrospective so long as the action was taken after the came into force. The consequences for breach of such obligations under RERA are prospective in operation. In case ongoing projects, of which completion certificate were not obtained were not to be covered under RERA, then there was likelihood of classifications in respect of undeveloped ongoing project and the new project to be commenced. In view of the material collected by the Standing Committee and the Select Committee and as discussed on the floor of the parliament, it was thought fit that ongoing project shall also be made to be registered under RERA. The Parliament felt the need because it was noticed that all over the country in large number of projects the allottees did not get possession for years together. Huge sums of money of the allottees is locked in. Sizable section of allottees had invested their hard-earned money, life savings, borrowed money, money obtained through loan from various financial institutions with a hope that sooner or later they would get possession of their apartment/flat/unit. There was no law regulating the real estate sector, development work/obligations of promoter and the allottee. Therefore, the Parliament considered it to pass a central law on the subject. During the course of hearing, it was brought to notice that in the State of Maharashtra a law i.e. MOFA on the subject has been in operation. But MOFA provisions are not akin to regulatory provisions of RERA.

Para-87. The important provisions like Sections 3 to 19, 40, 59 to 70 and 79 to 80 were notified for operation from 1/5/2017. RERA law was enacted in the year 2016. The Central Government did not make any haste to implement these provisions at one and the same time, but the provisions were made applicable thoughtfully and phase-wise. Considering the scheme of RERA, object and purpose for which it is enacted in the larger public interest, we do not find challenge on the ground that it violates rights of the petitioners under Articles 14 and 19(1)(g) stand to reason. Merely because sale and purchase agreement was entered into by the promoter prior to coming into force of RERA does not make the application of enactment retrospective in nature. The RERA was passed because it was felt that several promoters had defaulted and such defaults had taken place prior to coming into force of RERA. In the affidavit-in-reply, the UOI had stated that in the State of Maharashtra 12608 ongoing projects have been registered, while 806 new projects have been registered. This figure itself would justify the registration of ongoing projects for regulating the development work of such project.

Legislative power to make law with retrospective effect

Para-89. Legislative power to make law with retrospective effect is well recognized. In the facts, it would not be permissible for the petitioners to say that they have vested right in dealing with the completion of the project by leaving the proposed allottees in helpless and miserable condition. In a entire like earnings to purchase a residential house for them, it was compelling obligation on the Government to look into the issues in the larger public interest and if required, make stringent laws regulating such sectors. We cannot foresee a situation where helpless allottees had to approach various forums in search of some reliefs here and there and wait for the outcome of the same for indefinite period. The public interest at large is one of the relevant considerations in determining the constitutional validity of retrospective legislation.

29. For the reasons stated above, I am of the opinion that Section 12 of RERA is retroactively applicable.

Remand of the matter

30. Learned Counsel for the Promoter argues that promoter did not get opportunity to contest the matter on merit for deciding the complaints under section 12 & 18 of RERA. He urges to remand the matter to MahaRERA. Per contra learned Counsel for appellant argues that opportunity of hearing was given to both sides to decide the dispute on merit and there is no need to remand the matter. According to him, promoter is prolonging the matter by seeking remand.

Alternative relief for withdrawal from project is granted

31. I would like to point out that principle of natural justice is required to be followed for deciding the dispute under RERA. It reveals from the impugned order that both the parties were sufficiently heard on merit by MahaRERA and thereafter decision was given. It cannot be ignored that allottee were ultimately permitted to withdraw from the project subject to terms and conditions mentioned in the allotment letter. So MahaRERA had also given decision though alternative on the point of refund. Thus, Maha RERA had decided issue of breach of section 12 & 18 of RERA on the part of the promoter and alternatively granted relief of refund in favour of allottee as per terms and conditions of the allotment letter.

No preliminary issue about maintainability of the complainants raised

32. It cannot be ignored that promoter never sought relief of framing of preliminary issue on the point of maintainability of complaint under Section 12 of RERA. There was no such preliminary issue framed about maintainability of complaint U/sec. 12 of RERA by the authority. There is no justifiable reason as to why promoter did not ask for framing of preliminary issue on the point of maintainability of complaint. In fact, dispute was finally heard and question of applicability of Section 12 was also decided by MahaRERA. In such circumstances, it cannot be said that MahaRERA only decided point of maintainability of the complaint and there was no opportunity of hearing to the promoter before MahaRERA on the point of breach of Section 12 of RERA.

Case laws for Remand

33. On the point of remand, I would like to refer the following case laws:

(1976) 2 Supreme Court Cases 286 [LQ/SC/1976/83] Bechen Pandey Vs. Dalhim Janki Devi.

"Order 41 Rule 23 CPC. To remand the suit to the trial court would necessarily have the effect of keeping alive the strife between the parties and prolonging this long-drawn litigation by another round of legal battle in trial court and thereafter in appeal."

(2008) 8 Supreme Court Cases 485 [LQ/SC/2008/1264] Municipal Corporation Hyderabad Vs. Sunder Singh.

"Order 41 Rule 23 CPC - Court should be slow in exercising its discretionary power U/R 23 and unless the conditions precedent therefore are satisfied Rule 23 should not be invoked. Order of remand should not be passed routinely. It is not to be exercised by Appeal Court only because it finds it difficult to deal with entire matter. If it does not agree with decision of the trial court, it has to come with a proper finding of it's own. The Appellate Court cannot shirk its duties"

2017 Supreme Court Cases Madras 7321 S. Sam Davidsam Vs. Santakumari CMA No. 1140. 2015 dt. 23.10.2017.

"First Appellate Court cannot travel beyond the parameters laid down in Order 41 Rule 23 & 23 A CPC. The mandate set out in Order 41 Rule 24 of CPC is that where the evidence on record is sufficient to enable Appellate Court to pronounce the judgment. The Appellate Court is bound to do so. The order of remand made in this case is without jurisdiction."

34. In view of ratios laid down in the above case laws and above discussion, I am of the opinion that remand is not necessary in this matter.

Breach of Section 18 by Promoter

35. Let us see if Promoter has committed breach of section 18 of RERA. Admittedly booking application form, confirmation letter and allotment letter are the initial documents of transaction executed between Promoter and Allottees. There is no date of handing over possession of flat in booking form or confirmation letter or allotment. Thereafter, no agreement for sale is executed and registered between the parties. However, Allottees have made out case that when they booked the flats in the year 2012-13, Promoter assured them orally to give possession in the year 2017. According to them, 2017 is also shown as date of possession in the brochure. Copy of brochure is filed by allottee to substantiate this aspect. If a booking is done in the year 2012-13, it is quite possible and probable that, possession might have been agreed to be given within reasonable time i.e. the year 2017. In ordinary case of nature, it is not possible to believe that any buyer will enter into transaction for purchase of home without knowing the date of getting possession of home. It is settled position of law that in absence of specific date of handing over the possession, a reasonable period of 3 years should be considered as a period for handing over the possession in respect of transaction between Promoter and Allottee.

36. In case law S.C. Civil Appeal No. 3182/19 Kolkata West International Vs. Devasis Rudra decided on 25/3/19, the Hon'ble Supreme Court held that,

"It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. A buyer can be expected to wait for possession for a reasonable period."

In case law Fortune Infrastructure Vs. Travor Dlima : (2018) 5 S.C.C. 442 Hon'ble Apex Court has held that,

when no date of possession is mentioned in the agreement the promoter is expected to hand over the possession within reasonable time and the period of three years is held to be reasonable time."

Thus, Promoter failed to give possession in the year 2017 and committed breach of Section 18 of RERA.

Breach of Section 12 of RERA

37. In the present matter, it is revealed from the various documents filed by Allottees that the lay out plan is modified by the Promoter without consent of the allottees. In fact, amenities assured to be given at the time of commencement of transaction on the basis of advertisement, broachers, etc. were refused to be given later on at the time of execution of agreement for sale. Allottee have filed comparative chart to show that what amenities were agreed and subsequently denied and also how plans have been changed. Thus, there is ample documentary evidence on record to show that the Promoter committed breach of Section 12. So allottees are entitled for withdrawal from the project and to claim refund alongwith interest from the Promoter.

Compensation

38. Allottees have also claimed compensation from Promoters. 12 & S. 18 of RERA provides for refund, interest & compensation. Now, complaints are heard and decided by Learned Chairperson of MahaRERA and not by Adjudicating Officer. Power of Adjudicating compensation under s. 12 & 18 of RERA is given to Adjudication Officer and not to Authority. Thus, impugned orders are not passed by adjudicating Officer but passed by Authority and hence, no relief of compensation is awarded to the allottees. Allottees may agitate their claim for compensation before Adjudicating Officer as per Section 71 and Section 72 of RERA.

Effect of occupancy certificate

39. It is true that competent authority has issued part occupancy certificate in March 2019 and further part occupancy certificate in the June, 2019. Promoter has shown willingness to offer possession with occupancy certificate to allottees by informing allottees to execute agreement and pay balance price and take possession. However, issuance of occupancy certificate in the year 2019 and offer of giving possession accordingly will not deprive the allottees to withdraw from project & claim refund with interest for breach of section 12 & Section 18 of RERA. In case law of Neelkamal Realtor, Their Lordships have held that,

"to complete the incomplete project is also object of RERA. Present project was incomplete on 1/5/2017 and now it is ready for handing over possession. Default in giving possession occurred in the year 2017. Possession with O.C. is offered in the year 2019. However, dispute is not only of delay in giving possession but it is also in respect of reduction of amenities and change of layout plan. Now, if some of the allottees are inclined to take possession with O.C. as per offer in the year 2019, the dispute pertaining to reduction of amenities which were initially agreed may be settled by amicable negotiation and for that purpose, parties may avail the opportunity of referring the matter in execution for mediation under the law by seeking order of Tribunal. However, allottees cannot be compelled to accept possession and stay in the project though occupancy certificate is received.

In case law: (2019) 5 Supreme Court Cases 725 [LQ/SC/2019/611] Pioneer Urban Land Vs. Govindan Raghvan. The Hon'ble Apex Court held that,

"Once builder failed to fulfill his contractual obligation of obtaining the occupancy certificate and offering possession of the flat to the purchase within the time stipulated in the agreement or within a reasonable time thereunder, the purchaser could not be compelled to take possession of the flat, when it was offered almost 2 years after grace period under agreement expired."
Conclusion

40. In view of above discussion, I conclude that complaints filed by Allottees are tenable under section 12 of RERA. Promoter has committed breach of Section 12 & Section 18 of RERA. Allottees are entitled to withdraw from project and get refund with interest from Promoter, Charge of the amount will be kept on the respective flats of the Allottees till amount is realized. Impugned orders are set aside.

So, I answer Point No. 1 to 3 accordingly.

PER: S.S. SANDHU, MEMBER (A)

41. I have gone through the draft judgment by my leaned brother and I entirely agree with conclusions he has drawn after appreciating the respective contentions of the parties, documents, case law etc. submitted on record. I feel it appropriate to add my examination of the issues in these appeals. Some amount of repetition/reproduction of commonly referred material for consideration to arrive at conclusions became necessary and hence could not be avoided despite best efforts.

42. By the captioned 11 appeals filed under Section 44 of the Real Estate (Regulation and Development) Act 2016 (hereinafter referred to as ' the' or 'the RERA'), the respective Appellants have impugned two identical orders dated 9.01.2019 and 25.01.2019 respectively passed by the learned Chairperson Maha RERA (hereinafter referred to as 'the Authority') in respective complaints filed by Allottees.

43. By consent of the parties, appeals were heard together to be decided by a common order as the Promoter is the same, the project is the same and facts and circumstances involved in these appeals are similar and question involved is identical. Appellants and Promoter will be referred as 'Allottees' and 'Promoter' respectively.

44. The relevant facts that led to filing of these appeals can be stated briefly as under:

Project launched by Promoter known as Island City Centre (ICC) is situated at Spring Mills Compound, G.D. Ambekar Road, Wadala, Mumbai consisting of towers ICC One and ICC Two (subject Project (s)) in Phase-II. In the marketing material such as brochures/booking application forms/allotment letters of the project, the project was represented and marketed as an extremely luxurious project with super structure that rises above Mumbai sky line, with world class infrastructural facilities/amenities, 8 acres' lush green landscape, residences with choice of international designer furnishings, state of the art facilities inside the flats, ready to move in possession by 2017 etc. Attracted by the aforesaid features, Allottees booked flats in towers ICC One and ICC Two by paying requisite amount. Booking forms/allotment letters issued by Promoter contained inter alia details of the layout of flats/project, amenities in the apartments/layout of the project, terms and conditions governing the transactions etc. In the period subsequent to booking, Allottees raised several issues concerning the lack of clarity on date of possession, terms of transactions, unilateral change/reduction in amenities, unilateral changes made in the layout of apartments/project, unfavourable clauses of agreements for sale etc. contrary to representation/assurances made by Promoter in the booking forms/allotment letters/brochures. The dispute on such and other issues became more pronounced when Allottees noticed that 2017 committed previously as date of possession at the time of booking was declared on portal as August 2018 while registering the project on 19.08.2017 and the date of final possession was revised to August, 2019. In such a situation, when Promoter issued demand letters for payment of stamp duty and registration fee for the purpose of execution of agreement for sale uploaded on MahaRERA portal, the Allottees apart from objecting to various clauses of agreement, contrary to the model agreement, raised concerns relating to unilateral changes to apartments/layout, misrepresentations etc. Allottees asked Promoter to come clear on the issues by doing the needful before execution of agreements for sale. On getting no favourable response or remedial action from Promoter despite follow-ups, the respective Allottees filed complaints with the Authority on various dates in 2018 to seek refund of the amounts paid by them along with interest and compensation broadly on following grounds:

(i) delay in handing over possession of the apartments together with completed amenities, facilities and infrastructure for habitable use thereof;

(ii) unilateral changes made by the Promoter in the layout of flats allotted to Complainants;

(iii) unilateral changes, deterioration, reduction in the amenities and facilities inside the apartments in breach of the representations made and assurances given by Promoter to the Complainants;

(iv) unilateral changes in the layout and outdoor amenities;

(v) discrepancies in the draft agreements for sale uploaded by the Promoter on MahaRERA Portal with model form of agreement under the.

45. In the complaint proceedings, Promoter denied any changes that are alleged to have been made to attract action as per Sections 12/14/18 of the. Promoter also submitted that as the development work was in the advanced stage and will be completed in accordance with and as per the sanctioned plan and revised timeline disclosed at the time of registering the project. Promoter also undertook to execute and register the agreements for sale as per provisions of the and the Rules and Regulations made thereunder.

46. After hearing the parties, the Authority observed that

i) Project being in advance stage bulk withdrawal of money from the project account for refund to Allottees will adversely affect the interest of the project as well as 520 Allottees therein.

ii) Promoter is entitled as per Section 4(2)(1)(C) to complete the project by August, 2019 as per fresh time declared while registering the project.

iii) Section 12 cannot be applied retrospectively to the transactions transpired prior to the. Also, no loss/damage is shown to have been sustained by complainants by reason of alleged incorrect and false statements made by Promoter to apply Section 12 of the.

47. By observing as above, the Authority passed the impugned orders thereby advising the parties to execute agreements for sale within 30 days. Alternatively, it allowed Allottees to withdraw if they so intended, subject to terms and conditions of allotment letters.

48. By terming the impugned orders to be unjust, illegal and improper, Allottees in these appeals have sought to quash and set aside the orders primarily on following grounds as culled out from their pleadings.

i) Orders are contrary to the public policy and statutory provisions specifically Sections 12, 14, 18 and 19 of the. No cogent reasons are given for dismissing grievances submitted with facts and corroborated evidence;

ii) Without considering the in its entirety Section 12 is selectively applied to deny benefits under Sections 12 and/or 18 which do not absolve Promoter liability under agreements for sale/allotment letters;

iii) The Authority failed to consider that, as held in Neelkamal judgment,

(a) the is not retrospective but may to some extent be retroactive or quasi-retroactive and therefore Promoter is obligated to abide by provisions of the and continues to be liable for any act of mis-representations, omissions/commissions, wrongs under the.

(b) the Parliament is competent to frame the law i.e. the RERA to affect subsisting/existing contractual rights between the parties in public interest;

(c) fresh timeline provided for completion of balance work of the Project at the time of registration of Project under the does not override the date for completion/possession provided at the time of issuing booking forms/allotment letters;

(d) in case of delay in possession/completion and on account of misrepresentations by Promoter, Allottees are entitled to cancel allotment letters to seek refund under Sections 18/12 of thewith interest which is not penal but compensatory in nature. It was provided under Section 8 of the Maharashtra Ownership of Flats Act, 1970 (MOFA) also;

(e) as per observations in para 87, merely sale and purchase agreement was entered by Promoter prior to the coming into force does not make the application of enactment retrospective in nature;

(f) the narrow interpretation and application of Section 4(2)(1)(d) of theis a serious lapse of judgment evidencing the misguided and lopsided approach of the Authority to deny refund by taking fallacious view that the refund of amounts with interest/compensation to Allottees will jeopardise the project and will cause prejudice thereto;

(g) directions and order by the Authority to pay balance amount towards apartments to Promoter by executing agreements for sale or take refund of the paid amounts as per allotment/booking letters amount to penalising and forcing the Allottees to accept delayed possession of apartments with plans and layout along with amenities of apartments and project drastically altered and reduced contrary to the standards and requirements of Allottees which were represented by Promoter at the time of booking.

49. Based on the above grounds, the Allottees have inter alia sought the following reliefs.

i) Being contrary to law of natural justice, equity and good conscience the impugned orders be quashed and set aside after examining their legality and propriety.

ii) Promoter be directed to accept cancellation of allotment letters and refund/pay to the Allottees all amounts including ancillary costs paid by them towards purchase of flats along with interest and compensation as applicable in terms of provisions of the RERA from the date of payment made.

50. Heard the parties. Learned Counsel for the parties submitted on record the relevant documents, written submissions/arguments, rejoinders, case law etc, in support of their respective contentions. Allottees have tendered their submissions extensively on all issues including merits of their complaints to challenge the legality and correctness of the impugned orders. On the other hand, Promoter has restricted its submissions to the maintainability of the complaints and pleaded to remand the matters to the Authority in case the Tribunal finds the complaints maintainable so as to give Promoter opportunity to contest the issues on merit. Allottees have opposed the submissions made by Promoter.

Necessary view of the above submissions would be taken at an appropriate stage in this judgment.

51. Learned Counsel for Allottees gave detailed account of the facts mentioned briefly in para 44 above and elaborated grounds in para 44 above to challenge the impugned orders. They submitted that the Authority failed to take cognizance of the grounds on which the Allottees approached the Authority seeking cancellation or allotment letters/flats and refund or the amounts paid by them.

52. Delay in possession is contended to be the foremost ground for withdrawing from the project by Allottees. Learned Counsel while arguing their case contended that during presentations/personal meetings, Promoter all along represented as clearly mentioned in the brochures also that ready to move in possession of apartments in the subject luxurious projects would be given by March/August/2017. Attracted by the features of the project and the assured time line for possession Allottees booked the respective flats and paid the requisite price as demanded by Promoter. To substantiate the date of possession, Allottees also submitted on record certain other documents such as e-mail dated 11.11.2015 by Allottees in Appeal No. 11024 and an e-mail dated 06.05.2013 and also letter dated 20.06.2018 by Allottees in Appeal No. 11016 sent to Promoter stating therein that Promoter had assured to give possession by March 2017. Allottees contended that the said date is neither disputed nor denied ever by Promoter. A letter dated 16.04.2013 by Promoter to another Allottee Fact Personnel Pvt. Ltd. is also submitted on record wherein Promoter had agreed to handover possession by December 2017. Allottees further contended that even otherwise as held by the Hon'ble Apex Court in the case of Fortune Infrastructure (supra) that where the date of possession is not mentioned in allotment letter, the possession should be given within a reasonable period of three years and therefore in any event Promoter was required to give possession by 2017 and not beyond.

52.1. Allottees argued that till July 2018 there were no signs of possession and since part Occupation Certificates (part OC) were obtained in March, 2019 there is a definite delay in handing over possession. Relying upon the judgment of the Hon'ble Apex Court in Kolkata West International City (supra) it is argued by the Allottees argued that it is manifestly unreasonable to expect the Allottees to wait for possession and therefore for the reasons of delay, Allottees are entitled to seek refund of amount with interest and compensation. It is further contended that where there is a gross delay, Promoter cannot compel Allottees to pay the balance amount as and when on obtaining part OC belatedly it is in a position to hand over possession as per the view taken by Supreme Court in Pioneer Land and Infrastructure Ltd. (supra).

52.2. Allottees contended that the view of the Authority holding Promoter entitled to complete the project by August, 2019 as per the fresh time line declared while registering the project is contrary to the view held by the Hon'ble High Court in paras 119 and 256 of the Neelkamal judgment. They argued that as per the said view whilst the Promoter is enabled to prescribe fresh time line Promoter is not absolved of obligations of handing over possession as agreed in the agreement for sale executed prior to registration of the project which in the instant cases is in terms of Promoter's broachers i.e. 2017 on the basis of which flats were booked.

In view of the above submissions the Allottees argued that since there is a delay they are entitled to withdraw from the project and refund of their amounts with interest and compensation as provided under Section 18 of the.

53. Other grounds on the basis of which Allottees sought to withdraw from the project are listed in para 44 above as 'b to e'. It is contended that as represented in the original brochures of the project the project was marketed as extremely luxurious project having attractive features/characteristic as mentioned in para 44 above. The high-rise towers viz. ICC One and ICC Two having 85 and 84 floors with iconic shape rising above the sky line of Mumbai was a unique selling point of the subject project. Several attractive facilities in apartments/project lay out such as lush green landscape of 8 acres, independent club facilities for residents of each building, exquisite facilities/amenities in apartments/layout etc. However, as gathered from new brochure and the draft agreement for sale uploaded by Promoter, drastic changes have been effected to height of the buildings, amenities/facilities, landscape etc. Possession assured by 2017 is already delayed. It is contended that the aforesaid changes in the layout of apartments/project building reductions/change in amenities were done unilaterally without consent of Allottees and therefore amount to misrepresentations under Section 12 of the. Some of such misrepresentations as alleged are illustrated as under:

a) The structure of the project building as per the original brochure and construction now contemplated is under:

One ICC

Two ICC

b) Unilateral changes in the layout of apartment inter alia include changes in the shape of facade resulting in change in dimensions/size of rooms, change/reduction in kitchen area due to utility created later, doors of bedroom changed to opposite side, nuisance due to passing of drainage pipeline through bedroom (e.g. in the flat of Allottees in Appeal No. 11021), Layout of flat completely changed, sundeck removed preventing light and air, all windows except the living room open partly (e.g. Allottees in Appeal No. 11024);

c) There is reduction/change/deterioration of amenities in the flats contrary to the representation made in brochures/allotment letter/booking application forms. Subsequent brochures and agreement done with another Allottee in June, 2017 show such reduction/change in amenities provided by Promoter. Allottees have submitted lists showing deviation in amenities provided in apartments as per new brochure/agreement for sale as compared to amenities assured earlier in brochure/allotment letters.

d) Subject project no longer has 8 Acres of lush green landscape as its area is alleged to have been transferred vide Integrated Development Scheme approved by MCGM on 28.11.2014 transferred to Promoter's project at Worli, Mumbai without the knowledge/consent of the Allottees;

e) As per draft agreement for sale, residents of both the towers ICC One and Two have to share the Club House instead of having independent Club House for each building as represented earlier by Promoter at the time of booking;

f) After allotment of flats and also after the RERA came into force on 01.05.2017 the IOD in respect of the subject project was amended seven times to effect changes in the layout on 07.10.2015, 21.04.2017, 13.07.2017, 22.08.2017, 23.10.2017, 16.12.2017 and 16.02.2018 without consent of the Allottees.

g) It is further submitted by the Complainants that amongst others, clauses of the draft agreement for sale provided by the Promoter are contrary to the model agreement viz. Recitals BB, CC, DD, EE, and Clauses 8.4, 8.5, 10.3 (a), 11.1, 11.2, 11.3, 11.4, 22(A)(ix).

54. By placing heavy reliance on the ratio of law as down by the Hon'ble High Court in the Neelkamal judgment, learned Counsel for Allottees contested the view of the Authority in paras 8 and 9 of the impugned orders. In the said paras the Authority held respectively that Promoter is entitled to complete the work of project as per fresh time line prescribed while registering the project and that the provisions of Section 12 of thecannot be applied retrospectively to the transactions transpired prior to the came into force.

54.1. Countering the contentions of Promoter that Sections 12 & 18 can operate prospectively only, Allottees contended that such a view is erroneous and contrary to the categorical view of the Hon'ble High Court in para 122 of the Neelkamal judgment in the context of Section 18 (a) of the. It is held therein that some of the provisions of RERA have a retroactive or quasi-retroactive effect. Observations made in para 121, 126 and 128 of Neelkamal judgment are also referred to drive home the point that legislature is competent to frame laws with retrospective effect to affect existing contractual rights between the parties in larger public interest and such retrospective effect would not render provisions of the RERA unconstitutional. It is further contended by Allottees that by virtue of proviso to Section 3 of thewhich makes the provisions of RERA applicable to ongoing projects, all the provisions including Sections 12, 14, 18 become applicable to the ongoing projects and to that extent RERA have retroactive effect. Allottees therefore argued that since Promoter's ongoing project was required to be registered under RERA, the provisions of Section 12 would be squarely applicable to misstatements/misrepresentations made by Promoter in the brochure/allotment letters.

54.2. It is also argued that delay in handing over possession is not merely a past act prior to the RERA but a continuing wrong and default which continued even after the came into force as the Promoter failed to handover possession till March 2019. Similarly, misrepresentations/misstatements about quality/quantity of amenities/facilities, handing over possession etc. also are not merely an act of the past but a continuing wrong even after the came into force as witnessed in the new brochure, agreement for sale executed in June 2017 with another allottee of the same project showing drastically reduced amenities.

54.3. By referring to observations of the Hon'ble High Court in Neelkamal judgment in paras 86,87,88,255 and 256 Allottees also argued that provisions of the are applicable both to the events and acts that transpired prior to as well as after the came into force. Therefore, Allottees are entitled for remedies provided under Section 12 and 18 of the.

54.4. Allottees further submitted that the words 'agreement of sale' used in Section 18 do not refer to any time period/date of their execution. On a plain, simple and ordinary reading of Section 18, as per normal rule to read the words of a statute in the ordinary sense and to apply harmonious construction of different provisions, reference to 'agreement for sale' cannot be limited or restricted only to an agreement executed after the came into force. Accordingly, it is argued that as per findings of the Hon'ble High Court in the Neelkamal judgment the provisions of the clearly apply in the context of agreement for sale executed prior to the came into force.

54.5. Allottees further argued that Provisos to Section 3 and 71 show contrary intention of the legislature to rebut the general presumption that substantive law is to operate only prospectively. It is reasoned that first proviso to Section 3 makes provisions of the including Sections 12 and 18 applicable to ongoing projects whereas proviso to Section 71 enables transfer of complaints under Sections 12, 14, 18 and 19 pending before the Consumer Forum on or before commencement of the to be filed before the Authority. This obviously applies the provisions of the to the pending complaints which are in respect of events that transpired prior to Act came into force.

55. In view of the above submissions and by referring to the findings in the Neelkamal judgment, Allottees submitted that the provisions of Sections 12 and 18 cannot be held to be retrospective in nature while being applied to the transactions transpired prior to the came into force. Therefore, Allottees pleaded that as the Promoter has misrepresented about the amenities/facilities in the project, about the date of handing over possession and has delayed the possession of flats contrary the date agreed/represented by Promoter, the Allottees are entitled to cancel of allotment letters and refund of their amount along with interest and compensation by setting aside the impugned orders.

56. On the contra, learned Counsel for Promoter, in addition to oral arguments have submitted detailed written submissions to support their contentions that the provisions of the are not retrospective but prospective in nature and no refund could be claimed on the basis of certain representation made prior to the commencement of the had been breached. Promoter has cited certain judgments dealing with the circumstances in which the provisions of the statutes or any amendment thereto are held to be retrospective/prospective in operation viz. (I) Hitendra Vishnu Thakur & Ors. Vs. State of Maharashtra & Ors. reported in (1994) 4 SCC 602 [LQ/SC/1994/591] ; (II) Rajagopal Reddy Vs. Padmini Chandrasekharan : (1995) 2 SCC 630 [LQ/SC/1995/164] ; (III) Commissioner of Income Tax Vs. Vatika Township Private Limited (2015) 1 SCC 1 [LQ/SC/2014/970] ; (IV) Union of India Vs. M/s. Indusind Bank Limited, CA Nos. 9087-9089 of 2016, Order dt. 15/9/2016 (Supreme Court); (V) GJ. Raja Vs. Tejraj Surana, Criminal Appeal No. 1160 of 2019, Order dt. 30/7/2019 (Supreme Court); (VI) Shanti Conductors (P) Ltd. & Ann Vs. Assam State Electricity Board & Ors., 2019 SCC OnLine SC 68. From the authorities referred as above, following principles with regard to retrospective application of statutes have been culled out by Promoter.

a) Any enactment/amendment which effects the substantive rights is presumed to be only prospective in its operations unless there are express words in the enactment which clearly indicate otherwise. On the other hand, if the provision is procedural in nature, it is presumed to have retrospective operation and to apply to events that have transpired or proceedings initiated prior to the coming into force of the enactment in question.

b) If a statute is merely declaratory of the law as it has always prevailed, it would be given retrospective operation. On the other hand, if the statute is not declaratory of previous law but enacts new law that affects substantive rights, it is presumed to have only prospective operation.

c) While a provision may not be retrospective in the sense that it does not affect vested or settled rights, it may be retroactive in the very limited sense that it may apply to facts which have transpired prior to the coming into force of the enactment without creating new rights or imposing new liabilities.

After the above clarification, Promoter like Allottees also relied on the findings of the Hon'ble Bombay High Court made in the case of Neelkamal in respect of certain provisions of the including inter alia Section 18 which formed the basis of complaints filed by Allottees. It is submitted that while examining the retrospectivity of the provisions of the and particularly of Section 18, the Hon'ble High Court has held that the to be retroactive but not retrospective. Promoter quoted and reproduced paras 85, 86, 122, 255, 256 etc. from the Neelkamal judgment to emphasise the distinction made in the said judgment between retrospective and retroactive operation of the.

57. As submitted in para 2.10 of its submissions, Promoter has argued that the is undoubtedly retroactive as it is triggered by events that have transpired prior to coming into force of the. It is further argued that even a project commenced prior to the is required to be registered where OC has not yet been issued, but this retroactivity does not affect any rights that have already accrued before the coming into force to impose any new liability which did not exist prior thereto. The Promoter further contended that language of the Sections 12 and 18 do not indicate that the Parliament had an intention to give them retrospective application. It is reasoned by Promoter that both the Sections therefore must be presumed to be prospective and only to apply in the case of Section 12, to representations made after conning into force of the and in the case of Section 18, only to agreements entered into after the came into force. It is contended by Promoter that as per findings/observations recorded in Para 256 of the Neelkamal judgment, the does not in any way modify the rights of the parties of respective agreements prior to the coming into force of the nor does it modify the said agreements in any way.

58. Based on the above arguments Promoter concluded that only reasonable construction of Section 12 of theis that the Section would apply to such representations as are made after the coming into force. Similarly, the only reasonable construction that can be placed on Section 18 is that it would apply only in case a builder fails to complete the project by the date stipulated in his application for registration under the or in an agreement entered into after the said act coming into force. It is contended that any other construction of the aforesaid two Sections would result in a retrospective modification to be avoided by the Bench in the case of Neelkamal. Promoter submitted that the aforesaid view of the as reflected by the Hon'ble High Court in the Neelkamal judgment has also been recognised by RERA Delhi in its orders in the cases of (i) Shikha Bansal and Gaurav Bansal V/s. M/s. Umang Realtech Pvt. Ltd. and (ii) Satish Kumar Maheshwar V/s. M/s. Umang Realtech Pvt. Ltd.

59. Promoter also contended that since the only issue that arises in the present appeal is whether the complaint made under Sections 12 and 18 of theand no other issue or controversy arises from the impugned order, the authorities cited in support of other propositions are not germane to or arise in the present appeals.

60. The Promoter has also contested the contentions of the Allottees that there is an internal evidence in the to give retrospective effect to Section 12 and 18 is entirely without any merit. In this context, Promoter specifically referred to provisions of Section 71 to argue that any complaint under Consumer Protection Act cannot be under Section 12, 14, 18 and 19 of theas the said Act did not exist at the time of institution of those proceedings. The said Section only provides transfer of any complaint whose subject matter is in the nature of what is addressed by the aforesaid Sections of the and as per observations of Hon'ble High Court in Para 255 of the Neelkamal judgment, the pending cases are with reference to claims for interests and/or compensation pending when the RERA came into force.

61. While maintaining the above position that Sections 12 and 18 would apply only to representations and/or agreements made after the RERA came into force Promoter further submitted that the prospective effect of Sections 12 and 18 would not deprive the contracting parties of any pre-existing contractual or statutory rights arising under the terms of enactment for allotment letter or a statute such as the MOFA which govern the relationship between the parties.

62. Promoter also submitted that the extensive arguments on merits of their complaints advanced by Allottees are entirely irrelevant in view of the fact that impugned orders hold the complaints as not maintainable and does not contain findings on the merits of the complaints.

63. After having considered the oral as well as written submissions of the parties and the documents on record following points arise for our consideration and determination.

64. The reasons for my findings against each of the above points are as follows.

65. As the Point Nos. 1 and 2 are interrelated, I propose to deal with them simultaneously.

It may be recapitulated that Allottees sought cancellation of allotment letters under Sections 12 and/or 18 for claiming refund of amounts paid by them with interest/compensation on the ground that Promoter has failed to hand over possession by 2017 as represented and has made several unilateral changes to the layout of apartments/project contrary to what was represented to them at the time of booking. The grievance in appeals is that the Authority has rejected their claims by holding erroneously that there is no delay to attract Section 18 as Promoter is entitled to complete the project by August, 2019 as per declaration made under Section 4(2)(I)(C) at the time of registration of the project. Another notable grievance is that on the ground of misrepresentation the claim under Section 12 is also rejected by holding that Section 12 cannot be applied retrospectively to the transactions transpired prior to the came into force.

66. As mentioned hereinabove both Allottees and Promoter submitted their contentions for and against the view taken by the Authority in the impugned orders. Supporting the view taken by the Authority the learned Counsel appearing for Promoter have argued that provisions of Sections 12 and 18 of the RERA under which the complaints are filed are prospective in operation as a consequence of which no refund could be claimed by Allottees on the basis that certain representations made prior to the commencement of RERA had been breached. To impress upon the circumstances in which the provisions of the statutes can be given a prospective or retrospective operation, Promoter has relied upon judgments (supra) of the Hon'ble Supreme Court hereinabove.

67. There cannot be a contest to the principles enunciated by the Hon'ble Apex Court in the judgments cited by Promoter. However, suffice it to observe that after due consideration of the view taken in this regard by the Hon'ble Supreme Court in various cases, the legal position in respect of retrospective application of RERA or retroactive application thereof has been explained by Hon'ble Bombay High Court in the matter of Neelkamal Realtors (supra) Parties in these appeals are well aware of this aspect as they have extensively referred to observations made by Hon'ble High Court in the said judgment to support their respective contentions.

68. It may be noted that while examining the constitutional validity of various provisions of RERA, the foremost challenge before the Hon'ble Bombay High Court in the Neelkamal Realtors' case pertained to retrospective/retroactive application of the said provisions. In order to have a proper construction of the provisions of the as intended by the Parliament so as to achieve the objects and purpose for which the was enacted, the Hon'ble High Court considered several factors which prompted enactment of this beneficial law for regulating the affairs of real estate sector. In this regard the Hon'ble High Court considered main objects of RERA as set out in the affidavit-in-reply of Union of India and the steps taken by Union of India prior to enactment of RERA which included the opinions expressed by various ministries, the reports of Standing Committee and Select Committee, the past and prevailing scenario with regard to state of law on the subject, the mischief which the new enactment i.e. RERA intended to remedy etc. Following observations made in Para 181 of the Neelkamal judgment capture vividly the gravity of prevailing situation in the real estate sector before the came into force.

"181. There was no accountability as to entity or persons responsible and/or liable for delivering on several projects that were advertised and in respect of which amounts had been collected from individual purchasers. What was promised in advertisements/broachers, such as amenities, specifications of premises etc. was without any basis, often without plans having been sanctioned, and was far from what was finally delivered......... Agreements entered into with individual purchasers were invariably one sided, standard-format agreements prepared by the builders/developers and which were overwhelmingly in their favour with unjust clauses on delayed delivery, time for conveyance to the society, obligations to obtain occupation/completion certificate etc. Individual purchasers had no scope or power to negotiate and had to accept these one-sided agreements."

69. In the aforesaid circumstances, the Hon'ble High Court observed that the Parliament thought it fit that ongoing projects shall also be made to be registered under RERA and RERA was enacted to regulate the development of real estate projects in respect of constructions which are not complete wherein occupation certificate had not been obtained on the date of commencement of the provisions of RERA. While dealing with applicability of the RERA provisions to the ongoing projects i.e. transactions transpired prior to the came into force, the Hon'ble High Court in terms of established principles of interpretation of statutes, has laid down the position as under:

"121. The thrust of the argument of the learned Counsel for the petitioners was that provisions of Sections 3(1), 6, 8, 18 are retrospective/retroactive in its application. In the case of State Bank's Staff Union vs. Union of India and Ors. [: (2005) 7 SCC 584] [LQ/SC/2005/921] the Apex Court observed in paras 20 and 21 as under:-

20. Judicial Dictionary (13th Edn.) K.J. Aiyar, Butterworth, p. 857, states that the word "retrospective" when used with reference to an enactment may mean-

(i) affecting an existing contract; or

(ii) reopening up of past, closed and completed transaction;

or

(iii) affecting accrued rights and remedies; or

(iv) affecting procedure. Words and Phrases, Permanent Edn., Vol. 37-A, pp. 224-25, defines a "retrospective or retroactive law" as one which takes away or impairs vested or accrued rights acquired under existing laws. A retroactive law takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty or attaches a new disability, in respect to transaction or considerations already past.

21. In Advanced Law Lexicon by P. Ramanath Aiyar (3rd Edition, 2005) the expressions "retroactive" and "retrospective" have been defined as follows at page 4124 Vol. 4:

"Retroactive-Acting backward; affecting what is past.

(Of a statute, ruling, etc.) extending in scope or effect to matters that have occurred in the past. - Also termed retrospective. (Blacks Law Dictionary 7th Edn. 1999)

Retroactivity" is a term often used by lawyers but rarely defined. On analysis it soon becomes apparent, moreover, that it is used to cover at least two distinct concepts. The first, which may be called 'true retroactivity', consists in the application of a new rule of law to an act or transaction which was completed before the rule was promulgated. The second concept, which will be referred to as 'quasi-retroactivity occurs when a new rule of law is applied to an act or transaction in the process of completion......The foundation of these concepts is the distinction between completed and pending transactions...." (T.C. Hartley The Foundations of European Community Law 129 (1981).

'Retrospective-Looking back; contemplating what is past.

Having operation from a past time.

"Retrospective Is somewhat ambiguous and that good deal of confusion has been caused by the fact that it is used in more senses than one. In general, however the Courts regard as retrospective any statute which operates on cases or facts coming into existence before its commencement in the sense that it affects even if for the future only the character or consequences of transactions previously entered into or of other past conduct Thus, a statute is not retrospective merely because it affects existing rights; nor is it retrospective merely because a part of the requisite for its action is drawn from a time and antecedents to its passing. (Vol. 44 Halsbury's Laws of England, Fourth Edition, Page 8 of 10-page 570 para 921)."

122. We have already discussed that above stated provisions of the RERA are not retrospective in nature. They may to some extent be having a retroactive or quasi retroactive effect but then on that ground the validity of the provisions of RERA cannot be challenged. The Parliament is competent enough to legislate law having retrospective or retroactive effect. A law can be even framed to affect subsisting/existing contractual rights between the parties in the larger public interest. We do not have any doubt In our mind that the RERA has been framed in the larger public interest after a thorough study and discussion made at the highest level by the Standing Committee and Select Committee, which submitted its detailed reports. As regards Article 19(1)(g) it is settled principles that the right conferred by sub-clause (g) of Article 19 is expressed in general language and if there had been no qualifying provisions like clause (6) the right so conferred would have been an absolute one."

124. The entire scheme of the RERA is required to be kept in mind. It is already submitted during the course of hearing that in many cases helpless allottees had approached consumer forum, High Courts, Apex Court in a given fact situation of the case. The courts have been passing orders by moulding reliefs by granting interest, compensation to the allottees, and Issuing directions for timely completion of project, transit accommodation during completion of project, so on and so forth. Under RERA now this function is assigned to the Authority, tribunal. An appeal lies to the High Court. Under one umbrella, under one regulation and one law all the issues are tried to be resolved. Provisions of Section 71 refers to power to adjudicate. A District Judge is conferred with the power to adjudicate compensation under Sections 12, 14, 18 and 19. A Promoter could very well put up his case before the adjudicator who deals with the issues in the light of the fact situation of each case. Therefore, there should not be any apprehension that mechanically compensation would be awarded against a Promoter on failure to complete the development work. The proviso to Section 71(1) provides that any person whose complaint in respect of matters covered under Sections 12, 14, 18 and 19 if pending before the Consumer Disputes Redressal Forum or the Consumer Disputes Redressal Commission or the National Consumer Redressal Commission, established under Section 9 of the Consumer Protection Act, 1986 on or before the commencement of this Act, he may, with the permission of such Forum or Commission, as the case may be, withdraw the complaint pending before it and file an application before the adjudicating officer under this Act Proviso to Section 71(1) reads as under:

"71. Power to adjudicate-

(1) For the purpose of adjudging compensation under sections 12, 14, 18 and section 19, the Authority shall appoint in consultation with the appropriate Government one or more judicial officer as deemed necessary, who is or has been a District Judge to be an adjudicating officer for holding an inquiry in the prescribed manner, after giving any person concerned a reasonable opportunity of being heard. Provided that any person whose complaint in respect of matters covered under sections 12, 14, 18 and section 19 pending before the Consumer Disputes Redressal Forum or the Consumer Disputes Redressal Commission or the National Consumer Redressal Commission, established under section 9 of the Consumer Protection Act, 1986 (68 of 1986), on or before the commencement of this Act he may, with the permission of such Forum or Commission, as the case may be, withdraw the complaint pending before it and his an application before the adjudicating officer under this Act."

In para 125, it is observed that Proviso of Section 71(1) is a clear indicator that even pending complaints before the Consumer Forum can be transferred to the adjudicator under RERA.

It is further held by Hon'ble High Court in para 256 of the said judgment that Section 4(2)(I)(C) enables the Promoter to revise the date of completion of project and handover possession. However, the provisions of RERA do not rewrite the clause of completion and handing over possession in agreement for sale.

70. The cumulative effect of the entire Neelkamal judgment indicates that the Hon'ble High Court has clearly held that the provisions of RERA in some situations may have retrospective or retroactive effect and that even assuming that the provisions of RERA have retrospective effect, the same does not render the provisions unconstitutional.

Considering the ratio of law laid down as above, the retroactive operation of the statute creates a new obligation or transaction or consideration or it destroys or impairs vested rights. Applied so, the RERA would apply to the transactions transpired prior to the came into force. In fact, without prejudice to the rule of retroactivity defined hereinabove, the second variant of the retroactivity i.e. 'quasi-retroactivity' as quoted under para 21 in the para 121 of the Neelkamal Judgment (reproduced hereinabove) appears more appropriate for the ongoing projects at the time of commencement of the. The principle of quasi-retroactivity applies a new rule of law to an act or transaction which is in the process of completion. Accordingly, with the application of rule of quasi-retroactivity, the relevant provisions of the will become applicable to events or acts which are incomplete, in progress or in continuation even though contractual transactions with regard thereto have transpired prior to the. It would therefore imply that once the incomplete/ongoing projects are registered as mandated under Section 3 (1) of thethe entire scheme of the in terms of its provisions and the Rules framed thereunder would become applicable to the contractual transactions between the parties irrespective of the fact that such transactions have commenced prior to the came into force. Such a retroactive application of the, as held by Hon'ble High Court in para 86 of the said judgment, does not affect the projects that are already completed. It operates only to regulate the existing/subsisting contracts and facilitates completion of such projects governed by the applicable provisions of the. Consequently, with such an application, for breaches, if any, of the terms of existing contracts transpired prior to the came into force, the provisions of the including Sections 12, 14, 18 and 19 shall become applicable to attach consequences to such breaches if such consequences are not already provided in the contract and/or they are contrary to the applicable provisions of the. The existing contracts as such are not re-written and overridden by the provisions of the. It may be noted that such an application of the provisions of the is not termed as retrospective by the Hon'ble High Court in the Neelkamal judgment. Therefore, the view taken by the Authority and the one advocated by Promoter in this regard is found untenable being unreasonable.

71. In fact, in view of observations of the Hon'ble High Court in the paras quoted hereinabove and as recorded at several places in the entire Neelkamal judgment concerning ratio of law, any debate with regard to retrospective/retroactive effect of the provisions of RERA is rendered 'irrelevant' and 'redundant'. Apart from the observations in paras 121, 122, 256 etc. the Hon'ble High Court throughout the said judgment has consistently held that;

(i) "From the Scheme of RERA and the subject case law cited above, we do not find that the first proviso to Section 3(1) is violative of Art. 14 or Art. 19(1)(g) of the Constitution of India. The Parliament is competent to enact a law affecting the antecedent events........... in the case of State of Bombay V/s. Vishnu Ramchandra (Supra) the Apex Court observed that the fact that part of the requisites for operation of the statute were drawn from a time antecedent to its passing did not make the statute retrospective so long as the action was taken after the came into force. The consequences for breach of such obligations under RERA are prospective in operation........." (Para 86).

(ii) Merely because sale and purchase agreements were entered into by the Promoter prior to coming into force of RERA does not make application of enactment retrospective (Para 87).

(iii) The Parliament not only has power to legislate retrospectively but even modify pre-existing contract between private parties in the larger public interest (Para 88)

(iv) Legislative power to make law with retrospective effect is welt recognised. In the facts, it would not be permissible for the petitioners to say that they have vested rights in dealing with the completion of the project by leaving the proposed allottees In helpless and miserable condition. (Para 89)

(v) In view of the object and scheme of RERA and considering the law laid down In respect of retrospectivity/retroactlvity the challenge that the provisions of Section 18 (1), (2), (3) and 40 are violative of Art. 14 & 20 is not sustainable in law. (Para 123)

(vi) "The Legislature has power to make laws with retrospective effect Therefore, even assuming that RERA or any part thereof operates retrospectively such retrospective operation would not render It unconstitutional, unless the retrospectivity shown to be excessive or harsh which injuriously affects a substantive or vested right. The Inhibition against retrospective construction of a statute is not a rigid rule and has been held not to apply to curative statute or a law enacted for the benefit of the community as a whole, which may be held to be retrospective even in the absence of any provision.......RERA is enacted to protect the interest of consumer in the real estate sector. It was enacted in the public interest". (Para 128)

72. On considering the application of the Neelkamal judgment in its entirety and various provisions of the harmoniously, it is undoubtedly clear that provisions of the shall apply to all existing/subsisting contracts or transactions relating to ongoing projects. There is no denying the fact that the instant project in which the Allottees have booked the flats prior to the is an ongoing and not yet complete even after the came into force from 01.05.2017. The flats were yet to be completed and handed over when the complaints were filed alleging violation of certain provisions of the. On being registered as ongoing project as mandated under Section 3 of the Act, by way of application of principle of quasi-retroactivity the provisions of the would necessarily apply to create new obligations or attach new disability in respect of transactions or considerations between the Allottees and Promoter that transpired in the past i.e. prior to the. Consequently, for any misstatement or mis-representation, breaches etc. the respective provisions of the including Sections 12 and/or 18 as the case may be shall be applicable to invite consequences and for availing remedies available under the said Sections.

73. Considering the respective submissions of the parties, in the light of above observations, we find substance in the submissions of the Allottees as they largely conform to and/or are based on the view held by Hon'ble High Court in Neelkamal judgment with regard to retroactive application of RERA to the contractual transactions transpired prior to the came into force in respect of ongoing projects. On the contrary the contentions of Promoter are found to be based not only on selective and partial view of the provisions of the, but they also do not take into consideration the judgment of Hon'ble High Court in the case of Neelkamal Realtors in its entirety. Besides, the view taken by Promoter that the provisions of Sections 12 and 18 of thewould only apply prospectively to such representations as are made after the coming into force is contrary to the purpose and object for which RERA was enacted. The contention of Promoter that the retroactivity as held by Hon'ble High Court in the aforesaid judgment does not affect any vested or accrued rights or impose any new liability which did not exist prior to the coming into force appears to be flawed and misplaced for the reason that the project being incomplete and possession still outstanding at the time of commencement of the, no vested/accrued rights of Promoter are getting affected on account of applicability of the provisions of Sections 12 and 18 of theas held by Hon'ble High Court in para 86 of the said judgment. In view of the preceding observations, I fully agree with the contentions of the Allottees and hold that the provisions of Section 12 and 18 are applicable to the contractual arrangements between the parties in these appeals.

74. In the light of above discussion and observations, I now advert to the material controversy involved in these appeals. Allottees have sought to cancel their allotment letters to seek refund of the amount paid by them on the ground of delay in handing over possession with all amenities/facilities for habitable use of their respective flats. As may be seen from submissions of Allottees hereinabove, sufficient evidence on record has been submitted to substantiate that Promoter had agreed to hand over possession by 2017. Brochures of the Promoter's project mention date for ready to move in possession as 2017 in respect of various flats in both the towers ICC One and Two. Various communications referred by Allottees also reveal that the date of possession referred to by Allottees as 2017 is not denied or disputed by Promoter. It is an admitted position that date of possession is neither mentioned in booking application forms/allotment letters nor there is an agreement for sale to evidence that. In such circumstances, considering the date mentioned in the brochure, as held by learned predecessor of this Tribunal in the case of Manjit Singh Dhaliwal V/s. JVPD Properties in Appeal No. AT0060000000000017 on 12.04.2018 or reasonable period of 3 years as held by Hon'ble Supreme Court in the case of Fortune Infrastructure (supra) there is a clear delay in handing over possession. Consequently, Allottees are entitled to withdraw from the Promoter's project on this ground alone without there being any reference or consideration to violation of any other provisions of the.

75. It is observed that despite the delay in handing over possession as above the Authority has rejected the plea of Allottees on the ground that the Promoter are entitled to complete the project and handover possession as per the fresh date declared under Section 4(2)(I)(C) at the time of registration. Promoter in the present appeals also has contended that the only reasonable construction that can be placed on Section 18 is that it would apply only in the event a builder were to fail to complete the project by the date stipulated in his application for registration under the or in an agreement entered into after coming into force of the said Act.

The aforesaid view held by Promoter and also by the Authority in the impugned orders while rejecting the request of Allottees is clearly contrary to the view held by Hon'ble High Court at several places and specifically in paras 119 and 256 of the Neelkamal judgment. In para 119 the Hon'ble High Court has held that under the provisions of Section 18 the delay in handing over the possession will be counted from the date mentioned in the agreement for sale entered into by the Promoter and the Allottees prior to its registration under RERA. As per the said view while revising the date of completion of project and handing over of possession under Section 4(2)(I)(C) the clause of completion or handing over possession as stipulated in the agreement for sale is not re-written. It merely saves the Promoter from penal consequences for non-registration of the project but does not absolve the Promoter of the liability under the agreement for sale i.e. to hand over possession as per the date stipulated in the agreement for sale. It is further observed by Hon'ble High Court in para 255 of the Neelkamal judgment that the purpose of Section 18(1)(a) is to ameliorate the buyers in the real estate sector and balance the rights of all the stake holders. The provisions of RERA seek to protect the Allottees and simplify the remedying of wrongs committed by the Promoter.

Moreover, the date given by Promoter as August 2019 as per declaration under Section 4(2)(I)(c) is unilateral and not with the consent or information of the Allottees, and therefore, it will not disentitle the allottee from claiming reliefs under Section 18 either to withdraw from the project by claiming refund or to continue with the project by claiming interest for the period of delay till the actual possession is given. If the view held by the Authority in impugned orders is accepted it will leave the Allottees in lurch where the completion/possession is already delayed while registering the ongoing project under the. Therefore, obviously the view taken by the authority is contrary not only to the object and purpose of the but also against the law laid down by the Hon'ble High Court in the case of Neelkamal. In view of these observations we hold that the Allottees are entitled for cancellation of their allotment letters on account of delay that has already taken place in handing over possession as clearly made out by the Allottees.

76. Apart from the reason of delay in handing over possession, Allottees also sought remedy under Section 12 of theby citing misrepresentations on account of unilateral changes effected by Promoter to the layout of apartments/project, reduction/changes in the amenities etc. contrary to representation made at the time of booking. Allottees had submitted necessary documents to the Authority in support of their contentions. By observing that Section 12 does not apply retrospectively to the transactions transpired prior to the and the Allottees have not shown any loss or damage caused by the alleged misrepresentation by Promoter, the Authority rejected the plea of the Allottees for refund of amounts as prayed for.

In regard to above, in the foregoing discussion and observations, it is already held that provisions of the, including Section 12 and 18, which formed the basis of complaints in these appeals are applicable to the transactions relating to ongoing projects. Therefore, the findings of the Authority that Section 12 is not applicable retrospectively and similar contentions of Promoter cannot be sustained and need to be rejected keeping in view the object and purpose of the and ratio of law laid down in the Neelkamal judgment.

77. The submissions of Allottees reveal that substantial amounts were paid by them on the basis of information represented by Promoter in brochures/marketing material wherein a flowery picture of the model flats and amenities in the apartments/project was projected. In the submissions recorded hereinabove, the Allottees have successfully made out misrepresentations by substantiating that project no more has the iconic high rise towers having 85 and 84 floors as the height is substantially reduced without the consent of Allottees. The amenities such as 8 acres of lush green landscape assuring environmental advantage are no longer available as area thereunder is used in other projects of the Promoter at Worli to the detriment of the advertisement, intention and purpose of booking of flats by Allottees. There are changes in the layout of apartments/project apart from change/reduction in amenities in the flats/project etc. IOD was modified at least for five times after the coming into force. All these acts are done without consent of Allottees which is required even under Section 7 of the MOFA also. No choice of internal furnishings is given even though represented so in the brochures.

78. On perusal of documents on record, a deception and misrepresentation is seen throughout in the conduct of Promoter. It is seen that no date of possession as shown in the brochures is mentioned in the booking application/allotment letters executed subsequently even though requisite amounts were paid by Allottees. The terms in booking form/allotment letters prescribed 'time as an essence of the contract', but it is only in respect of payments to be made by allottees and to invite penal consequences for delay if any. Yet the 'time is not an essence' for Promoter in case there is delay in possession and also no penal consequences for unilateral reduction/change in amenities etc. as assured. All documents executed by the Promoter when perused carefully fit the description in the nature of contractual arrangements that prevailed prior to the RERA as mentioned in para 181 of Neelkamal judgment quoted hereinabove. The enactment was prompted in the background of such factors only. The helpless Allottees were made to sign on the dotted lines at the time of booking. Promoter even had the audacity to share the agreement for sale which was contrary to the model agreement prescribed under RERA. Perusal of the same substantiates the claim of Allottees.

79. In my view, the Authority has clearly erred in holding that Allottees failed to show that they sustained any loss or damage by reason of incorrect, false statement and misrepresentation by Promoter. The Authority should have considered the fact that substantial amounts paid by Allottees have been blocked since years with no possession together with amenities as assured in sight. The loss should have been evaluated by the Authority in terms of losses of interest and mental agony caused to the Allottees. We find that there is no breach on the part of the Allottees and they should not be made to suffer for the delay and breaches committed by the Promoter.

80. In view of above observations, the Allottees are entitled to take recourse to remedy under Section 12 which applies retroactively to the transactions transpired prior to the Art came into force as held by Hon'ble High Court in Neelkamal judgment Consequently, I hold that Allottees are entitled to umbrella of protection provided under Section 12 of the Art for breaches and failure of obligations of the Promoter.

81. In view of the comprehensive discussion and observations recorded hereinabove it is categorically held that the complaints filed by allottees are maintainable and the provisions of the, specifically the Section 12 and/or 18 would be applicable in furtherance of legitimate cause of the allottees. Consequently, they are entitled for cancellation of allotment letters and refund of their amounts with applicable interest prescribed under RERA. Accordingly, I record my findings against the Point Nos. 1 and 2 in the affirmative and partly affirmative respectively. The impugned orders passed by the Authority call for interference and deserve to be set aside.

Point No. 3

82. Learned Counsel for Promoter submitted that the Authority has held complaints not to be maintainable and therefore they did not file reply on merits. Therefore, it is pleaded that in case this Tribunal finds complaints to be maintainable, the matters be remanded to Authority to be decided on merits. The Allottees strongly objected to the proposition by arguing that it is evident from the impugned orders that the complaints were heard in detail on merits and decided after giving sufficient opportunity to the respective parties. He further argued that Promoter deliberately avoided to deal with merits in their submissions before the Authority as well as this Tribunal. The cited case law (Supra) as referred to by my learned brother in para 33 above to oppose the remand of the matters. Learned Counsel for Promoter argued that the case law cited by the Allottees are irrelevant and not applicable to the matters.

83. After carefully considering the respective submissions of the parties and on perusal of impugned order I agree with the view taken as above by my learned brother. In addition, it is observed that there is nothing in the impugned orders to reveal/suggest that the Authority had framed the issue of maintainability or there was any such request from any of the parties. In fact, it appears that Promoter has all along pursued a studied and cautious approach when it came to deal with the matters on merit. It is seen that Promoter chose not to file any reply in the proceedings before the authority. Also knowing very well that the Tribunal never framed the preliminary issue of maintainability there being no demand to that effect, the Promoter chose to file reply limited only to issue of maintainability despite opportunity being granted by the Tribunal vide interim orders dated 10/22nd April, 2019 for filing additional pleadings.

84. In the above circumstances, Promoter cannot be allowed to prolong proceedings by raising the plea for remand/reply on merits in its written submissions tendered at the end of the proceedings. The complainant cannot be made to go through repetitive rounds of litigation for no fault on their part. As may be seen, on elaborate examination and discussion of the points for consideration, it is already held that the complaints are maintainable and the provisions of Section 12 and 18 are attracted to the transactions prior to the coming into force. Therefore, plea for is rejected and I answer the Point No. 3 in the negative.

85. In accordance with the discussion, observations and conclusions recorded hereinabove, we pass the following order:

COMMON ORDER

1. Appeal Nos. 11016, 11021, 11022, 11024, 11040, 21134, 21161, 21183, 21184, 21185 and 21188 are partly allowed.

2. Impugned order dated 09.01.2019 passed in Complaint Nos. 54648, 55341, 55445, 55572, 55584, 55858, 55870, 56128 and 56208 is set aside.

3. Impugned order dated 25.01.2019 passed in Complaint Nos. 44441 and 55814 is set aside.

4. Allotment of respective flats/apartments in favour of appellants stands cancelled.

5. The respondent shall return the amount received from respective appellants along with other ancillary costs including service tax and MVAT incurred by respective appellants with interest @ 2% above the State Bank Of India's highest Marginal Costs of Lending Rate from the date of payment of the said amount till realisation of the amount.

6. The charge of the amounts shall remain on the respective flats/apartments till the realisation of the above amount.

7. Applications for interim relief if any filed by the appellants and respondent are dismissed.

8. No order as to costs.

9. Copy of this order be sent to the parties and the Authority as per Section 44(4) of the RER Act, 2016.