The constitutional validity of the Real Estate (Regulation and Development) Act has been upheld by the Bombay High Court providing relief to the huge number of property buyers.
All the other high courts of India have been directed by the Supreme Court to wait for the Bombay High Court to decide on the constitutional validity of the RERA Act on the basis of various plea and petition filed before the Bombay HC challenging the RERA’s act validity.
Justice Naresh Patil and Justice RG Ketkar after hearing all the submissions put forth passed a judgement upholding the provisions of the RERA Act. The RERA Act came into force on 1st May, 2017.
The petitions were filed by the builders and Senior Advocates Aspi Chinoy, Dr. Virendra Tulzapurkar, Girish Godbole and Su Kumar represented the Petitioners in the matters. The petitioners submitted that they have been aggrieved by the specific provisions of the RERA Act such as delay in possession and the provision which levy arbitrary interest on the buyer etc.
Sections 3, 5, 7, 8, 11(h), 14(3), 15, 16, 18, 22, 43(5), 59. 60, 61, 63 and 64 of the Act and Rules 3(f), 4, 5, 6, 7, 8, 18, 19, 20 and 21 of the Registration of real estate projects, Registration of real estate agents, rates of interest and disclosures on website) Rules, 2017 have been challenged by the petitioners.
It was submitted by the petitioners that the penalties which are imposed on the promoters by way of this act are violative of Article 14, 19(1)(g), 20(1) and 300-A of the constitution as the they put unreasonable restriction on the promoters. The court however observed that the effect of the provisions of the RERA Act are not retrospective but is rather prospective and thus it cannot be said to be in violation of Indian Constitution.
The court held that the proviso to section 3(1), section 3(2)(a), explanation to section 3, section 4(2)(l)C), section 4(2)(l)(D), section 5(3) , the first proviso to section 6 and sections 7, 8, 18, 22, 38, 40, 59, 60, 61, 63, 64 of the RERA Act are legal and constitutionally valid.
However, the court has set aside the section 46(b) of the act as the section provides eligibility to a person to be a member of tribunal who has been at the post of Additional Secretary. The court said that the all the members of the tribunal should be judicial members.
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