How to determine jurisdiction of court if offences is committed by promotor under MOFA Act?

MOFA is a social legislation.   It has been enacted,
inter alia, to curb the malpractices in the construction and sale of
flats taken on ownership basis, and is aimed at regulating of the
promotion of the construction, sale, management and transfer of
flats taken on ownership basis.   It casts several liabilities on a
promoter which arise upon execution of a written agreement of
the purchase of a flat between the promoter and the purchaser.
The execution of an agreement between the promoter and the
purchaser is the very basis of the liabilities and responsibilities that
are cast upon a promoter by MOFA.  In such a situation, when a
particular violation/s or contravention/s of the provisions of MOFA
which cannot be satisfactorily determined as having taken place 'in
a particular legal area' takes place, such contraventions  must be
treated as having taken place in the area  where the agreement
between the promoter and the purchaser has been entered into
and executed.
When in this background, the fact that the agreement
between the parties was entered into at Mumbai is taken into
consideration, it is not possible to hold that the  Magistrate  at
Mumbai would have no jurisdiction to entertain the complaint and
try  the   alleged  offences.    At  the   cost  of  repetition,  it  may  be
observed that executing an agreement is the very basis of the
promoter   –   purchaser   relationship   and   is   an   intricate   and
inseparable part of the general liabilities of a promoter.  When the
violation of such general liabilities is alleged, which violations are
alleged to be amounting to an offence punishable under section 13
of MOFA, it cannot be said that the act of executing the agreement
is not an integral part of the alleged offence.  Therefore, the Court
within whose local jurisdiction the agreement was entered into,
would have territorial jurisdiction to try an offence punishable
under section 13 of MOFA, irrespective of the place where the
property is situate. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.830 OF 2014
Dhirajlal P. Desai .. Petitioner
Versus
The State of Maharashtra & ors .. Respondents
­­­

­­­
   CORAM :   ABHAY M. THIPSAY, J.

ORDER PRONOUNCED     :    3rd SEPTEMBER, 2015
Citation:2016 ALLMR(CRI)2331
­­­

Print Page

When owner of property can be said to promoter as per Maharashtra Ownership Flats Act 1963?

There is one more dimension to the matter.  As indicated
above, it is the owners, who had obtained the IOD and commencement
certificate   from   the   MCGM   and   it   is   through   the   medium   of   the
Respondent   No.   1   that   they   have   commenced   and   completed   the
construction.  Therefore, in terms of Section 2(c) of the MOFA, which
takes within its sweep the person who has caused the construction to be
the Promoter, the owners can be said to be the Promoters, as they have
admittedly caused the construction.   It is therefore their obligation to
see to it that the Society is conveyed what it is entitled to in terms of the
agreement entered into with the flat purchasers by the Respondent No.
1, which, in the instant case is the right to get a lease in its favour.  In

my view, since the owners having abdicated their obligation under the
MOFA   of   conveying   the   property   to   the   Society,   the   Competent
Authority has rightly intervened in the matter by passing the impugned
order.     In   my   view,   the   impugned   order   granting   the   deemed
conveyance has therefore to be construed in the context of the rights
the Developer had i.e. the right to get a lease from the owners.  Hence,
the impugned order cannot be faulted with on the ground that the
operative part of the order is vague or ambiguous.

IN  THE  HIGH  COURT  OF  JUDICATURE  AT  BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9116 OF 2013
Farhat Co­op Housing Society Ltd 
versus
M/s. Malkani Enterprises 

CORAM :­ R. M. SAVANT, J.

Pronounced on  :­ SEPTEMBER 23, 2014
Citation;2016(3) ALLMR210

Print Page