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(Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, popularly known as MOFA was repealed by section 56 of Maharashtra Housing (Regulation & Development) Act 2012 which came into force on 6th Sept 2015.

And then The central Act : Real Estate (Regulation & Development) Act 2016 have repealed the Maharashtra Housing (Regulation & Development) Act under section 92 which came into force from 1st May 2016.

Now many of my friend were under the impression that MOFA is still prevailing. Let us visit General Clause Act Section 6 :

Effect of repeal. ?Where this Act, or any 1 [Central Act] or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall 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(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or

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(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or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The General Cluse Act says that an Act once repealed cannot come into force automatically. Suppose Act Z was repealed / scrapped by Act Y and Act Y was repealed by Act X. Hence Act Z cannot come to life automatically unless a separate provision or Act is passed to revive it.

The Maharashtra Act which repealed MOFA had condition for MOFA repeal :

Provided that, the repeal shall not affect,— (a) the previous operation of the law so repealed or anything duly done or suffered thereunder, or (b) any right, privilege, obligation or liability acquired, accrued or incurred under the law so repealed, or (c) any penalty, forfeiture or punishment incurred in respect of any offence committed against the law so repealed, or (d) any investigation, proceedings,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.

Which means all cases, right, interest and liabilities incurred during the MOFA’s period will be in offing and all courts and agreements will adhere to MOFA provisions for transactions entered into during MOFA’s period.

Hence, MOFA is 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 will be treated under central Act. Even Article 254 says that in case of confusion as to Act enacted by Center and State on the same subject, then Central Act will prevail and will have supremacy on state Act.

By Dr Sanjay Chaturvedi,

LLB, PhD    


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Comments

8 years ago K Jayant

In an article DNA on 07 Jul 2017 ( http://www.dnaindia.com/mumbai/report-rera-chairman-wants-old-real-estate-act-repealed-2494423) , following is quoted:- However, Dr Sanjay Chaturvedi, a real estate expert, said, “MOFA has the power of criminal proceedings. In 2012-13, too, there was an attempt to get rid of MOFA when the new Maharashtra Housing Authority was being formulated. Section 56 of the Act repealed MOFA, but since it wasn’t notified, the Act remained.” This is in contradiction to what you have stated here. Please clarify.


8 years ago Dr Sanjay Chaturvedi

88. The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force. 89. The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force. These Provisions are came into force on 1st May 2016.


8 years ago Dr Sanjay Chaturvedi

Law makers knows that in many part of India, Acts like MOFA prevails, like for example GOFA in Gujarat. Had RERA known that MOFA is still alive, they would have repealed MOFA and other such Acts directly, but chosen to repeal only Maharashtra Act under section 92 and not other Acts. What was the purpose to provide specifically? Mr Prasad Sathen ji, I think your adamant and antognised by chalenging me in person rather than discussion on the subject. When RERA had notified certain sections from 1st May 2016, which means there cannot be two definitions of same subject. Certainly Central Act will prevail. For Example, Carpet Area is defined and notified under RERA section 2(k), now the carpet areas are defined under DCR, under MOFA and in many other Acts and notifications. Which means all the definitions are repealed and central Act will prevail over all the Acts including MOFA. Any qualified Advocate will know that an Act can be Repealed only when an Act to repeal it or any provisions of any section to do so. If repealing Act also repealed then first repealed Act cannot come alive without any Act or notifications. Since THE REAL ESTATE tribunals under section 43 is already notified and came into force since May 1st 2016, within one year all across nation such Tribunal needs to be established by 30th April 2017. Hence Court Jurisdiction on MOFA also wasted with Tribunal. Is this not the repeal of Jurisdiction? Except the Licensing and liabilities between section 3 to 38 of RERA, all other sections over rule MOFA jurisdiction. Is this not repeal of MOFA. But ofcourse as I have mentioned in my article that transactions happened during MOFA was in action will also be subject to MOFA jurisdiction for all Right, Interest and Liabilities. The article should have been read in complete rather than just title. I well come comments on subject for a healthy discussion but I am sorry to read personal comments and challenging once knowledge and experience.


8 years ago Dr Sanjay Chaturvedi

it is 6th Sept 2014, typing mistake. No. MHA 10.14/ C.R.21/ R&R-2 dated 6th Sept 2014.


8 years ago Sandeep Kapatkar

if you have 6-9-2015 notification/gazette saying section 56 of MHRDA was activated please upload. By the way 6-9-2015 was holiday


8 years ago Sandeep Kapatkar

If you have 6-9-2015 specifically saying Section 56 was activated please upload. By the Way 6-9-2015 was holiday


9 years ago Prasad Sathyan kaliyapura

Sanjay Chaturvedi Sir, Hope things are clear to you...


9 years ago Sandeep Kapatkar

MOFA stands


9 years ago Sandeep Kapatkar

Disagri Dr:refr s1(3) MHA: Som secs of MHA cam in4rc on 8-7-2014: s56 of MHA rplg MOF nvr cam in 4rc: RER psd 25-3-2016 & som secs cam in4rc 1-5-2016 incldg s.92, wic repld MHA : Evn b4 MHA repld MOFA, MHA is repld-so MHA totly repld & MOF stnds


9 years ago Prasad Sathyan kaliyapura

Bombay High Court on April 2016 has delivered a judgment by stating that--" Admittedly no notification is issued in respect of section 56 of MHRD Act as section 56 needs yo be notified on an appointed date... by notification dated 8th July, 2014 the state government which was an appointed dated as per section 56 published and gazetted provisions of section 1,18, 19, 21, 22, 23, 36, 51 and 52.... hence the court said we are not inclined to accept that MOFA Act is completely repealed..


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