Bombay High Court directs Maharashtra RERA to restore physical hearing option

Procedural fairness includes the right of parties to choose their mode of hearing, the Bombay High Court observed on Thursday while directing the Maharashtra Real Estate Regulatory Authority (MahaRERA) to restore physical hearing within four weeks [Mayur L Desai v State of Maharashtra and anr].

A Bench of Justices Revati Mohite Dere and Neela Gokhale passed the order after it noted that MahaRERA was allowing only virtual hearing even after the COVID-19 pandemic, and physical hearing of parties was not being permitted.

The High Court held that access to justice includes the ability to appear either physically or virtually and that tribunals must be accessible "not just in form, but in substance".

"Access to justice is a constitutional guarantee and cannot be reduced to a mere formality. Procedural fairness includes the right of parties to choose their mode of hearing, especially when both physical and virtual modalities are feasible. Tribunals must not only be accessible in form, but also in substance,” the Court said.

The order came in a petition filed by Mumbai resident Mayur Desai, who challenged the continued absence of physical hearing mechanism at MahaRERA and sought the formulation of structured guidelines to streamline the execution of orders passed by the Authority.

The Court noted that prior to the COVID-19 pandemic, MahaRERA conducted physical hearings.

While the shift to virtual hearings during COVID-19 was understandable, the continued insistence on virtual-only hearings post-pandemic was found to be procedurally restrictive and systemically opaque.

“Access to justice is not merely about providing virtual access, but ensuring that parties also have the right to appear physically...Access to justice cannot be reduced to an 'either/or'framework. The ‘either/or’ approach adopted by MahaRERA is restrictive. The hearing mechanism must be ‘hybrid’, permitting the litigants or lawyers to choose the mode of appearance/hearing,” the Court said.

The petitioner argued that MahaRERA’s current model frustrated the objective of the Real Estate (Regulation and Development) Act, 2016, which mandates expeditious, transparent and effective adjudication of real estate disputes.

It was submitted that there was no mechanism for urgent mentioning, no listing of cases in a time-bound manner, and that litigants often had no clarity on when orders would be pronounced or uploaded.

MahaRERA's counsel argued that the parties can request physical hearings. The affidavit also cited the availability of an online complaint and listing module and stated that the Authority was trying its best to reduce pendency.

However, the Court was unconvinced by this conditional stance. It held that litigants cannot be made to request what is already a fundamental part of access to justice.

Citing precedents, the Bench reiterated that hybrid hearings are now a part of the constitutional fabric of procedural access.

Hence, it proceeded to issue the following directions:

- MahaRERA shall restore hybrid hearing facilities within four weeks, allowing litigants and counsel to opt for either physical or virtual appearance;

- The Authority must revisit its April circular, particularly concerning urgent listing of non-compliance matters, and evolve a mechanism for timely execution;

- A register of praecipes submitted for circulation, production or urgent listing must be maintained along with records of their acceptance or rejection;

- Orders must be uploaded with a time-stamp and fixed dates must be assigned for hearings with the next date also indicated in case of adjournments;

- MahaRERA’s website must display updated contact information, cause-lists and Bench calendars in a transparent and accessible manner.

Advocate Aseem Naphade along with Chitrangada Singh instructed by Clove Legal appeared for Mayur Desai.

Additional Government Pleader Vaishali Choudhari along with Additional Government Pleader Madhura Deshmukh appeared for State.

Advocate Ravi Adsure along with advocate AK Saxena appeared for MahaRERA.

[Read Judgment]