MOFA: Repealed or still in force??
Express or Implied Repeal
The Maharashtra Ownership Flats (Regulation of the Promotion of Construction,
Sale, Management and Transfer) Act, 1963 (MOFA) was repealed by the Section 56
of Maharashtra Housing (Regulation & Development) Act 2012 (MHA). The Section 56
of the MHA stated that on the date of it coming into force, the MOFA shall be
repealed. However, the State Government had only notified certain provisions of
MHA, which did not include Section 56. Thereafter, the Real Estate (Regulation &
Development) Act 2016 (RERA) which came into force from 01st May 2016., repealed
In Forum for People's Collective Efforts (FPCE) v. State of West Bengal, the
Supreme Court declared the West Bengal Housing Industry Regulation Act, 2017 (HIRA)
and the West Bengal (Regulation of Promotion of Construction and Transfer by
Promoters) Act, 1993 unconstitutional based on the reasoning that both these
legislations were repugnant to the RERA, and therefore, void under Article
254(1) of the Constitution of India.
Citing other judgements in the said matter, the Hon'ble Supreme Court reiterated
three tests of repugnancy, First, a direct inconsistency or conflict between the
actual terms of the competing statutes; second, though there is no direct
conflict between a State and Central statute, the latter may be intended to be
an exhaustive code in which event it occupies the whole field, excluding the
operation of the state law on the subject in the concurrent list; third,
repugnancy may arise when both the State and Central statutes seek to exercise
power over the same subject matter.
The Hon'ble Supreme Court held that a large part of HIRA overlaps with the
provisions of RERA with many RERA provisions lifted bodily, word for word and
enacted into HIRA. Furthermore, the Court held that the overlap between the
provisions of HIRA and the RERA is so significant as to leave no manner of doubt
that the test of repugnancy based on an identity of subject matter is clearly
established. Most of the issues covered in MOFA are included in RERA as
well. Hence, applying the reasoning of the Supreme Court in FPCE matter to the
MOFA and RERA issue, one might conclude that MOFA has been impliedly repealed by
RERA as per the third test of repugnancy.
Since the RERA introduction in 2016, it has been widely presumed that MOFA
provisions still prevail and RERA has overriding effect only in cases of
inconsistency. However, the Supreme Court judgement in FPCE matter casts
a shadow of uncertainty over the existence of MOFA.
Some provisions of MOFA are state specific and do not have a corresponding
provision in RERA, such as Section 4A (effect of non-registration), Section 12A
(curtailing the essential services) and Section 11(3) (deemed conveyance).
Nearly 80% of the Co-operative Housing Societies in Maharashtra have not
received the conveyance of land and building in their favour from the builder
and thus making the deemed conveyance provision imperative for the state. Like
Maharashtra, other states too have/had some specific provisions in their local
real estate laws. Such provisions being peculiar to a state may vary from state
to state and hence including the state specific provisions in a central statute
cannot be considered as an option.
The Maharashtra Government can introduce a new legislation covering
provisions/issues which are absent in RERA and are also otherwise not repugnant
Law Article in India
You May Like
Legal Question & Answers