Nov 27, 2017
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RERA Vs MOFA

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RERA Vs MOFA

RERA Vs MOFA ?

The question here arises as to which Act overrides the other, does the MOFA cease to exists after the commencement of RERA?

The Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, popularly known as MOFA was repealed by section 56 of Maharashtra Housing (Regulation & Development) Act 2012 which came into force on 6th Sept 2015.

Subsequently, with the assent towards the Real Estate (Regulation & Development) Act 2016, applicable as a Central Act, repeals the Maharashtra Housing (Regulation & Development) Act under section 92 which came into force from 1st May 2016. The impression that MOFA still prevails is in the General Clause Act in Section 6.

Effect of repeal

Whether this Act, or any of the Central Acts or Regulation made after the commencement of this Act, repeals any enactment herein made or hereafter to be made, then, unless a different intention appears, the repeal does not?
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.

The General Cluse Act says that an Act once repealed cannot come into force automatically. Suppose Act Z gets repealed / scrapped by Act Y and Act Y gets repealed by Act X. Hence Act Z cannot come to life automatically unless a separate provision or Act is passed to revive it.

Scenario on MOFA Repeal

The Maharashtra Act, which repealed MOFA had condition for MOFA repeal:
Provided that, the repeal shall not affect,—

(a) the previous operation of the law so repealed or anything duly done or suffered thereunder, or

(b) any right, privilege, obligation or liability acquired, accrued or incurred under the law so repealed, or

(c) any penalty, forfeiture or punishment incurred in respect of any offence committed against the law so repealed, or

(d) any investigation, proceedings, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, proceedings, legal proceedings or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if this Act has not been passed : Provided further that, subject to the preceding proviso and any saving provisions made elsewhere in this Act, anything done or any action taken under the provisions of the law so repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act; and shall continue to be in force accordingly unless and until superseded by anything done or any action taken under this Act.

(2) Any reference in any law or in any instrument or other document to the provisions of the law so repealed shall, unless a different intention appears, be construed as a reference to the corresponding provisions of this Act.

Conclusion:

Furthermore, goes to say all cases, rights, interest and liabilities incurred during the MOFA’s period will be in anticipated and all courts and agreements will adhere to MOFA provisions for transactions entered into during MOFA’s period.

Therefore, MOFA gets scrapped / repealed by Maharashtra Housing Act and Maharashtra Housing Act is repealed by Central Real Estate (Regulation & Development) Act 2016 since 1st May 2016. Henceforth, all matters treatable under the Central Act.

Moreover, even Article 254 says that in case of confusion as to an Act enacted by Center and State on the same subject, the Central Act prevails and has supremacy over the State Act.

 

Article Categories:
RERA Act

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