The penal liability for breach of sections 5, 7, 10, and 11 of the Maharashtra Ownership Flats Act, 1963, flows even in cases where there is no written agreement of sale or where the agreement remains unregistered.

JUDGMENT - S.N. KHATRI, J.:---The common question of law that arises in these two revision petitions is whether a promoter is not liable to be prosecuted for offences under sections 4, 5, 7, 10 and 11 r.w. section 13 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (hereinafter for short 'the Act') for the reasons that the agreement of sale between him and the purchasers of the flat concerned is not reduced to writing and registered as required by section 4 of the Act. The learned Additional Chief Metropolitan Magistrate has dismissed the private complaints of the two petitioners for the aforesaid reason. They have now come up in revision to this Court. This order dispose of both petitions.

2. Abdul Jabbar (petitioner in Criminal Revision Application No. 234 of 1983) and Sheikh Ahmed Sange (Petitioner in Criminal Rev. Application No. 235 of 1983) filed two separate complaints before the learned Magistrate against M/s. Serkop Builders and their four partners for offences under the aforesaid sections and section 406 of Indian Penal Code on these allegations. The accused-respondents are promoters of the building called Mehrab Apartments situate at Kurla West. They orally agreed to sell one flat in the building to each of the petitioners at the rate of Rs. 77/- per sq. ft. The oral agreement with Abdul Jabbar took place on 31st March, 1977 for a price of Rs. 25,795/- and that of Sheikh Ahmed Sange on 7th June, 1977 for a price of Rs. 55,055/-. The two petitioners made the initial payment of Rs. 2,795/- and Rs. 9,000/- on these dates respectively. The promoters undertook to reduce the terms of the oral agreement to writing immediately on receipt of the initial payments and get the agreements registered as required by section 4 of the Act, but failed to do so.

3. The petitioners further averred in their complaints that the promoters have subsequently recovered the entire amount of the price due from each of them and have even put the petitioners in possession of the flats in October 1978. The promoters further recovered from each of the petitioners Rs. 445/- and also other flat purchasers to cover the expenses for formation of a co-operative society as required by section 10 of the Act. The petitioners, grievance was that the promoters did not comply with the requirements of section 4 by executing a registered agreement in their favour. The promoters also committed breach of sections 5, 7, 10, and 11 which are punishable under section 13 of the Act with one year's imprisonment and fine. In as much as the promoters did not apply the item of Rs. 445/- towards the formation of the Co-operative Society, of the flat takers, they were alleged to have committed an offence punishable under section 406 Indian penal code as well as under the latter part of section 13 r.w. section 5 of the Act.

4. The learned Magistrate issued process against the promoters under sections 4, 5, 7, 10 and 11 r.w. section 13 of the Act. No seperate process was issued under section 406 Indian Penal Code, presumably because the offence of criminal breach of trust is punishable under the latter part of section 13 r.w. section 5 with a higher sentence of four year's imprisonment than the one of three years prescribed under section 406 Indian Penal Code.

5. Before recording of evidence commenced, the promoters presented an application to the learned Magistrate for dismissal of the complaints on two grounds, namely, (1) that the prosecution on all counts was barred by time and (2) that the promoters would not be held criminally liable for breach of the various provisions of the Act, inasmuch as admittedly the agreement between the parties was not reduced to writing and registered as required by section 4 of the Act.

6. On the question of limitation, the learned Magistrate held that the prosecution was barred by time in so far as the offence under section 4/13 was concerned, inasmuch as it was lodged wi

Click Here to Read the rest of this document