Maharashtra Government Order on Redevelopment of Co-operative Housing Societies (30 September 2026) made simpler for layman
Short Notes: Maharashtra Government Order on Redevelopment of Co-operative Housing Societies (30 September 2026) Government Order dated 30 September 2026 Redevelopment G.R. 30-09-2026 Redevelopment Govt Circular English-Marathi Short Notes: Maharashtra Government Order on Redevelopment of Co-operative Housing Societies (30 September 2026) Government Order dated 30 September 2026 Purpose of the Government Order Issued under Section 79A of the Maharashtra Co-operative Societies Act, 1960. Replaces the Government Resolution dated 4 July 2019 and subsequent circulars. Aims to ensure transparency, uniformity and member participation in redevelopment. Applicability Applies to developer-led redevelopment, self-redevelopment, group redevelopment and cluster redevelopment. The prescribed procedures for appointing developers also apply to contractors in self-redevelopment. Eligibility for Redevelopment The building must be declared dilapidated, ruinous, unsafe or dangerous by the competent authority. The society must be eligible under the applicable Development Control Regulations. Authority to Decide Only a duly elected and legally constituted managing committee can initiate redevelopment decisions. An administrator or authorised officer appointed by the Registrar cannot take the redevelopment decision. Special General Meeting (SGM) At least one-fifth of the society’s members can request an SGM. The SGM must be convened within two months of the application. Members must receive 14 days’ advance notice. A minimum of three architects or project management consultants must be invited to submit quotations. Quorum and Approval The quorum for the redevelopment SGM is two-thirds of the total membership. Redevelopment requires approval from at least 51% of the total members. Eligible members may attend through video conferencing, subject to the requirement that at least 51% of total members are physically present. If quorum is not achieved at the adjourned meeting, the proposal cannot be reconsidered for three months. Appointment of Architect/PMC The SGM selects an architect or project management consultant. The appointment letter must be issued within 30 days. The architect/PMC must prepare the project report within two months of appointment. Project Report and Tender Process The project report must include carpet area, commercial space, parking, open space and construction specifications. Members must be given an opportunity to submit suggestions. The tender draft requires SGM approval. Public tenders must be invited through Marathi and English newspapers with the largest local circulation. At least three tenders should be obtained, with prescribed extensions if fewer are received. Selection of Developer The developer must be selected at an SGM in the presence of a Registrar-appointed authorised officer. The quorum is two-thirds of total membership. Approval of at least 51% of total members is required. Voting may be by show of hands or secret ballot if requested in writing by one-fifth of total members. The meeting must be video-recorded. Transparency and Documentation Members have the right to inspect redevelopment documents free of charge. Copies must be provided on payment of the prescribed fee. Meeting notices and minutes must be submitted to the Registrar within 14 days. Video recordings and relevant documents must be preserved. Development Agreement The agreement with the developer must be executed within three months. The construction period should not exceed two years, or three years in exceptional circumstances. Bank guarantees must be decided by the general meeting. Alternative accommodation, rent or […]
Read morePrinciples of Statutory Interpretation, Precedence and Limitations
Limitation of Special Laws to Override Common Statute The general principle of statutory interpretation is that a special law (lex specialis) generally prevails over a general or common statute (lex generalis) when both deal with the same subject matter and contain conflicting provisions. This principle is expressed by the Latin maxim Generalia specialibus non derogant, meaning that general provisions do not derogate from special provisions. Meaning A special law is enacted to regulate a particular subject, class of persons or specific situation, whereas a general statute applies more broadly. When both laws apply to the same matter, the special law ordinarily takes precedence over the general statute, provided that the legislature has not indicated a contrary intention. Limitations on the overriding effect of special laws The overriding effect of a special law is subject to several limitations. Legislative intention: A special law does not automatically override a general statute in every situation. The intention of the legislature must be considered. Absence of conflict: If the provisions of the special law and the general statute can operate harmoniously, both should ordinarily be given effect. Express overriding provisions: If the general statute contains an express non obstante clause, such as “notwithstanding anything inconsistent therewith in any other law,” the court must examine its scope and the legislative intention behind it. Subsequent legislation: A later general statute may override an earlier special law if the legislature clearly intends to do so. However, a general amendment does not ordinarily repeal a special law by implication. Different fields of operation: Where the special law and general statute govern different aspects of a matter, the special law does not necessarily displace the general statute altogether. Constitutional supremacy: Neither a special law nor a general statute can override the Constitution. Both remain subject to constitutional limitations. Important judicial decisions LIC v. D.J. Bahadur (1981) The Supreme Court of India explained the relationship between special and general laws and recognized that a special statute ordinarily prevails over a general statute dealing with the same subject. The Court also considered whether a subsequent general enactment was intended to override the special legislation. LIC v. D.J. Bahadur establishes that the special-versus-general distinction is contextual, not absolute. A special statute does not automatically override every other statute, and the courts must examine legislative intention, inconsistency and the possibility of harmonious construction. Applied to MOFA, the decision supports a careful examination of the limits of Section 11. It does not, on its own, establish that freehold deemed conveyance is impermissible. Solidaire India Ltd. v. Fairgrowth Financial Services Ltd. (2001) Solidaire India establishes that a later special statute may prevail over an earlier special statute where their overriding provisions conflict and the legislative intention supports that result. It does not establish that Section 11 of MOFA automatically overrides leasehold restrictions or independently authorises conversion into freehold ownership. Its relevance to a MOFA dispute is principally interpretive: the court must identify the actual statutory conflict, consider legislative intention and distinguish statutory priority from the separate question of whether the society has a substantive right to freehold title. The Supreme Court considered the conflict between […]
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The Silent Crisis in Legal Practice: When Clients Succeed but Lawyers Remain Unpaid
The Silent Crisis in Legal Practice: When Clients Succeed but Lawyers Remain Unpaid For many advocates, the deepest professional frustration is not losing a case. It is succeeding for a client and still remaining unpaid. Across years of practice, many lawyers experience the same pattern repeatedly: urgent consultations, endless conferences, strategic drafting, court appearances, emotional pressure, favorable outcomes, and then delayed, reduced, or completely denied professional fees. This problem becomes more painful in matters involving “success-linked” fee understandings. During the crisis stage, clients make assurances freely. Once relief is obtained — settlement, injunction, bail, recovery, business advantage, or litigation success — the financial commitment often becomes negotiable in the client’s mind. The result is not only financial loss. It creates professional exhaustion and distrust within practice. The Real Issue Is Structural In many cases, the problem is not merely dishonesty by individual clients. It is the absence of professional billing structure. Traditional relationship-based practice often relies on: verbal fee discussions, informal understandings, post-result payments, unlimited access to the lawyer, and emotional trust instead of documented systems. Such models place disproportionate risk on the advocate. The lawyer invests: time, intellectual effort, strategy, office resources, staff coordination, and professional reputation, while payment remains uncertain until the very end. Why This Pattern Damages Legal Practice Over time, repeated unpaid work creates: burnout, resentment toward clients, unstable cash flow, inability to scale chambers, reduced professional boundaries, and loss of motivation despite competence. Many capable lawyers become financially strained not because they lack legal skill, but because they lack enforceable economic structure within practice management. The Need for Professional Financial Discipline Modern legal practice requires systems, not assumptions. Advocates increasingly need: * written engagement terms, * stage-wise billing, * advance retainers, * consultation fees, * documented payment schedules, * and clear pause rights for non-payment. Equally important is client selection. Clients who: * resist written fee clarity, * negotiate excessively, * avoid advances, * or continuously postpone payment discussions often become future collection problems. Success Fees Should Not Be Survival Fees A major mistake in practice economics is depending on future “success fees” as the primary compensation. A healthier structure is: * proper professional fees during the matter, * with any success-linked component treated only as additional upside. This protects the advocate from total economic loss even if the client later defaults. Professionalism Must Continue Even During Recovery Non-payment should never push advocates toward public confrontation, emotional communication, or unethical pressure tactics. Fee recovery efforts should remain: * Documented, * Dignified, * Neutral, * And professionally managed. Long-term reputation is more valuable than short-term anger. A major lacuna in the existing legal framework is the absence of a statutory mechanism securing payment of professional fees to advocates. While the Advocates Act, 1961 emphasizes professional ethics and duties toward clients, it does not adequately protect advocates from non-payment of legitimate fees after rendering legal services. Need for an Advocates’ Security of Fees Act The present legal framework under the Advocates Act, 1961 does not provide an effective statutory mechanism for securing payment of professional fees to advocates. Although advocates are ethically prohibited from abandoning clients unfairly […]
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International Law and the Vulnerabilities of the Global Market
The foundational promise of postwar international economic law was straightforward: establish a rules-based order, and predictable markets would generate shared global prosperity. For decades, multilateral institutions—anchored by the World Trade Organization (WTO), the International Monetary Fund (IMF), and an expansive network of Bilateral Investment Treaties (BITs)—functioned as stabilizing mechanisms for global capital and cross-border trade. Yet the contemporary world economy is increasingly defined not by seamless integration, but by structural fragmentation, geopolitical rivalry, volatile supply chains, and re-surging economic nationalism. As global markets become more vulnerable to political shocks and strategic competition, international legal frameworks are struggling to adapt. Rather than operating as neutral arbiters of trade and investment, these institutions are increasingly transformed into arenas of geopolitical contestation. Geopolitical Power and the Global Economy The global economy is often portrayed as a system governed primarily by trade law, market liberalization, and international cooperation. In practice, however, power politics continues to shape economic outcomes far more profoundly than legal idealism frequently acknowledges. Economic sanctions, military interventions, control over strategic resources, and dominance over global financial infrastructure have become central instruments of international influence. One of the clearest examples is the structural dominance of the United States within the dollar-based global financial system. Since a significant portion of international trade, energy transactions, and sovereign reserves are denominated in U.S. dollars, Washington possesses extraordinary leverage over the global economy. States perceived as challenging American strategic interests can face sanctions, restrictions on banking access, limitations on dollar settlements, and exclusion from critical financial networks. This financial centrality extends American influence far beyond conventional territorial boundaries. India itself experienced the coercive dimension of economic policy following the 1998 Pokhran nuclear tests, when the United States imposed sanctions under its non-proliferation framework. Although India ultimately absorbed these pressures and later developed stronger strategic relations with the United States, the episode illustrated how economic instruments can be mobilized to discipline sovereign states. Similarly, Iran has endured decades of comprehensive sanctions affecting its banking sector, oil exports, trade networks, and broader economic stability. The Iranian case demonstrates how sanctions can evolve from temporary diplomatic measures into long-term geopolitical instruments aimed at strategic containment. Energy politics further intensifies these tensions. Oil-rich regions frequently become focal points of international intervention, proxy conflicts, and political destabilization. Critics argue that major powers often seek to influence resource-rich states either directly through military intervention or indirectly through regime pressure, economic dependency, and geopolitical alignment. At the same time, recent developments indicate that American financial dominance is no longer entirely uncontested. China, Russia, India, and several BRICS members have increasingly explored alternatives to dollar-centric trade mechanisms through local currency settlements, regional payment systems, and efforts toward financial multipolarity. Although the dollar remains dominant, these developments reflect growing dissatisfaction with the concentration of monetary power within a single state. The Iranian experience also reveals the limitations of conventional coercive power. Despite decades of sanctions and diplomatic isolation, Iran has retained significant regional influence and strategic resilience. This underscores the broader reality that modern geopolitical conflicts cannot be resolved solely through economic pressure or military superiority. Consequently, the modern global economy cannot be understood exclusively […]
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“Can Sons Restrain a Mother from Transferring Property? A Legal Analysis under Hindu Law”
CAN SONS FILE SUIT AGAINST MOTHER (HINDU) FOR STAY AGAINST TRANSFER OF SHARES / PROPERTY HELD BY MOTHER IN A FAMILY PROPERTY/ PRIVATE COMPANY ABSOLUTELY TO DAUGHTER? Hindu law prohibits dowry. But dowry is given in one form or another. Hindu Law after 2004 amendment gave equal right to married daughter in father’s property. View of Author Equal property rights for married daughters are an important step toward fairness and gender equality. However, in some families this can also create tensions in relationships. After marriage, daughters may be influenced by their husband or in-laws, and when disputes over property arise, disagreements can escalate into legal battles or serious family conflicts. While the intention behind laws like the Hindu Succession (Amendment) Act, 2005 is to ensure justice and equal rights, the practical implementation sometimes leads to strained family ties when expectations about property are unclear or contested. In such situations, disagreements over inheritance may even end up in court or cause long-lasting rifts within families. Therefore, along with legal equality, maintaining open communication, clear property planning, and mutual understanding within families is important to prevent conflicts and preserve relationships. Law makers must prevent this situation resulting into strained relationships. Broken relations makes society psychologically weaker. Continue… with article… Let us see Section 14 of the Hindu Succession Act 1956. Property of a female Hindu to be her absolute property.―(1)Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation.―In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act. (2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property. If the shares are the mother’s self-acquired property (bought by her or gifted to her), she has absolute authority to transfer them to anyone she wishes, and the sons have no legal standing to stop her during her lifetime. Section 5 of the said Act provides for exception: Act not to apply to certain properties. ―This Act shall not apply to― (i) any property succession to which is regulated by the Indian Succession Act, 1925 ( 39 of 1925), by reason of the provisions contained in section 21 of the Special Marriage Act, 1954 (43 of 1954); (ii) any estate which descends to a single heir by the terms of any covenant or agreement entered […]
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CAN A HOUSING SOCIETY SELL TDR TO A PRIVATE MEMBER OF THE SOCIETY UNDER DOCUMENT OF MEMORANDUM OF UNDERSTANDING AND RESOLUTIONS?
JURISDICTION OF CO-OPERATIVE COURT AND BINDING NATURE OF SOCIETY RESOLUTIONS Let us first see what is TDR? Transferring Development Rights (TDR) by a housing society involves the society, as a landowner, generating extra buildable area (TDR) by surrendering land for public use (like roads, parks) to the municipality, receiving a TDR certificate (or Development Right Certificate – DRC), and then selling these rights to a developer or another party to build more than standard Floor Space Index (FSI) allows, benefiting both the society (compensation for land) and the buyer (extra construction rights). This process helps fund infrastructure projects and allows societies to get value for reserved plots, making TDR a crucial tool in urban development, especially in places like Mumbai. How it Works for a Society: Land Surrender: The housing society owns land, often designated for public amenities (e.g., a playground, road widening) by the city. TDR Generation: Instead of cash compensation, the Municipal Corporation (like MCGM in Mumbai) issues a TDR certificate (DRC) to the society, representing the Floor Space Index (FSI) potential of the surrendered land. Selling the Rights: The society can then sell this certificate to a builder or another property owner. Utilisation: The buyer uses the TDR to construct additional built-up area on their own plot, exceeding the normal FSI limits, often in a designated “receiving zone”. Benefits of TDR for Societies Financial Compensation: Provides funds for the society (often through developers) without the government paying cash, allowing land acquisition for public projects. Development Incentive: Encourages development and helps resolve land reservations, as owners get value for undevelopable land. Legal Avenue: Offers a way for societies and trusts to utilize or sell their development potential POINT OF CAUTION: A Housing Society cannot legally sell Transferable Development Rights (TDR) to a private member using only a Memorandum of Understanding (MoU) and Resolutions. TDR transactions must follow a formal, regulated process involving proper documentation and approval from the competent authorities to be legally valid. Legal Requirements for TDR Transfer : TDR is a formal legal instrument: TDR is an official development right issued by a municipal authority as a Development Right Certificate (DRC). This certificate is a tradeable commodity, similar to a stock, in a formal market. Formal Agreements are Required: Any transaction involving the sale or transfer of TDR requires a registered agreement, such as a formal TDR Sale Agreement, not just an MoU or simple resolutions. The agreement must be registered under the Registration Act, 1908. Statutory Compliance and Oversight: The transaction must comply with the relevant state laws, such as the Maharashtra Regional and Town Planning (MRTP) Act, 1966, and local Development Control Regulations (DCRs). Regulatory Approvals: The transfer must be registered with the Sub-Registrar and updated on the relevant municipal or urban local body’s (ULB) online TDR portal (if available). Authorities track the chain of ownership and usage of TDRs to prevent misuse and ensure transparency. Transparency and Fair Value: Transactions by a housing society, especially those involving a private member, are subject to scrutiny to ensure the society receives fair market value and to prevent irregularities or fraud. Risks of Using Only […]
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“LEGAL IMPLICATIONS OF UNTRACEABLE SELLERS AND OWNERS IN HOUSING SOCIETY SHARE TRANSFERS”
Today we are discussing very important issue of transfer of shares in a society when a seller is not traceable and when Owner is not traceable. What is the difference between the two? Before going to the core issue let us first learn definition of the term “member” under the Maharashtra Co-operative Society Act 1960 and the Bye-laws. Bye-Laws 3 (xxiv) “Member” means a person joining in an application for the Registration of a Cooperative Housing Society which is subsequently registered, or a person duly admitted to Membership of a Society after Registration and who holds the right, title and interest in the property individually or jointly; Share Capital: a.) A Share Certificate, prescribed in bye-laws, bearing distinctive number and indicating the name of the Member, the number of shares issued and the value paid there on, shall be issued by the Society to every Member for the shares subscribed by him, within a period of six months of the allotment of the shares. Conditions of Membership: 19. An individual / applicant who is eligible to be the Member and who has applied for Membership of the Society in the prescribed form, may admitted as Member by the Committee on complying with the following conditions :- i. applicant has fully tendered the value of at least Ten shares of the Society, along with his Application for Membership; ii. applicant has paid the Entrance Fee of Rs. 100/-, along with the Application for Membership; iii. applicant has submitted the application as prescribed, of the particulars in regard to any house, plot or flat owned by him or any of the Members of his family, anywhere in the area of operation of the Society; iv. applicant has submitted undertaking in the prescribed form to the effect that he shall use the flat / unit for the purpose for which it was purchased by him; v. applicant has furnished an undertaking in the prescribed form, if he / she has no independent source of income; vi. applicant has submitted, along with the application for Membership of the Society, a certified copy of the agreement, duly stamped and registered entered into by him / her/ them with the Promoter Builder or Transferor under Section 4 of the Maharashtra Ownership of Flats Act;applicant has furnished such other undertakings/declarations, in the prescribed forms as are required under any law for the time being in force and such other information as is required under the Bye-laws of the Society along with the application for Membership. viii. In case of Societies registered under the jurisdiction of special planning Authority like CIDCO / MHADA / SRA / MMRDA etc. the applicant should be eligible person as per the provision of respective Act and the directives of the Govt. / the Planning Authorities, if any. Note : The conditions at (iii), (iv), (v), and (vii) above shall not be applicable to the Promoter Builder, applying for Membership of the Society, in respect of the unsold flats. An Individual, a Firm, a Company or a Body Corporate, registered under any Law for the time being in force, who/ which is eligible to be an Associate Member and who/which shall […]
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CRITICAL ROLE OF TITLE CLEARANCE IN REDEVELOPMENT
In a redevelopment project, it is highly recommended to verify and clear the property’s title first before formally deciding on and appointing a builder. While a builder can be tentatively selected (e.g., via a Letter of Intent or a resolution in a Special General Body Meeting), formalizing the development agreement and starting the actual project activities (like demolition or construction) without a clear and marketable title creates significant legal and financial risks. Why Title Clearance is Crucial First Legal Requirement: For a builder to obtain necessary municipal approvals and a Commencement Certificate (CC) to begin construction, the society must generally have a clear and marketable title to the land. This is often achieved through a registered conveyance deed or “deemed conveyance”. Risk Mitigation: Unclear land titles are a common source of delays and litigation in redevelopment projects. Title disputes can halt the project indefinitely, leaving both the builder and the society members in a precarious situation (e.g., displaced and without their new homes). Financial Safeguard: A clear title ensures the project is legally sound and makes it easier for the builder to secure project financing and for future buyers in the free-sale component to get home loans. This financial stability is a key factor in a project’s success. Transparency and Trust: Conducting thorough legal due diligence, including title verification, at an early stage demonstrates transparency and helps build trust between the society members and the chosen developer. Recommended Order of Operations (General Steps) Initial Decisions & Structural Audit: The society discusses redevelopment and conducts a structural audit to determine feasibility. Appoint Professionals: An architect/Project Management Consultant (PMC) and a legal advisor are appointed to guide the process. Title Verification/Conveyance: The society’s legal team conducts comprehensive title verification and works to obtain a clear conveyance deed or deemed conveyance for the property. Builder Selection: Once the title is confirmed, a transparent tendering process is used to select a reputable builder with a proven track record, financial stability, and relevant experience. Formal Agreements: A detailed Development Agreement (DA) and individual Permanent Alternate Accommodation Agreements (PAAA) are meticulously drafted, vetted by legal experts, and registered. Project Commencement: The builder then seeks the required approvals (IOD, CC, etc.) and begins construction. Prioritizing title clearance helps safeguard the interests of all stakeholders and ensures a smoother, legally compliant redevelopment process. HOW FAR A CERTIFICATE OF TITLE BY A SOLICITOR/ ADVOCATE IS SIGNIFICANT? In Ramniklal Tulsidas Kotak And Others vs Varsha Builders And Others on 26 August, 1991 Equivalent citations: AIR1992BOM62, AIR 1992 BOMBAY 62, (1993) MAH LJ 323, (1992) 2 BANKCAS 441, (1992) 2 BOM CR 492 “(1) A Certificate of Title need not necessarily be unconditional or unqualified. It can be qualified to the limited extent of the implied statutory exception contained in Section 3(2)(b) of the Maharashtra Ownerships Flats Act, 1963, as interpreted above. The Format of the Certificate of Title prescribed by the rules is mandatory, subject only to a limited scope for adaptability as explained in the judgment. A qualified certificate of title must furnish all relevant information as set out in paragraph 19 of this judgment. (2) The Promoter must […]
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LAW OF PRIVATE DEFENSE
SELF DEFENSE WHY? Nowadays we see violence attack on Hindus, in West Bengal, Jammu and Kashmir and so on. Hindus are submissive by nature and do not believe in violence. Peace is their religion, and inner peace is their yog. But now with increase in violence on Hindus, there is a hot discussion whether we can keep arms with us for self -defence? I feel its just not due to such incidents like Pahalgam but in general, all children must be trained in self-defence from school. It should be compulsory in curriculum. ARMS ACT 1959 So lets start to learn the legal provisions. One cannot keep arms with him/her. Why? Because they are governed by Arms Act 1959. “arms” means articles of any description designed or adapted as weapons for offense or defense, and includes firearms, sharp-edged and other deadly weapons, and parts of, and machinery for manufacturing, arms, but does not include articles designed solely for domestic or agricultural uses such as a lathi or an ordinary walking stick and weapons incapable of being used otherwise than as toys or of being converted into serviceable weapons; Here we are not talking about ammunition. Which is very dangerous like bombs, rockets, grenades etc. To possess arms, one requires license under Sec 3 of said Arms Act. Certain arms and ammunition are totally prohibited under the said Act. Now let us see which arms are permissible under the law or can say are out of reach of Arms Act. Gun with License, however, certain firearms and ammunition, such as those of .303, 7.62mm, 9mm, and .455 bore, are prohibited and not available for civilian ownership. Pepper Spray is legal in India for self-defence, stun gun, telescopic baton, lipstick stun gun, electroshock weapon, flashlights, red pepper gel spray. Difference between Self-Defense and Private Defense: While self-defense primarily focuses on personal protection, private defense extends to protecting others or one’s belongings. The principles of proportionality and reasonableness in using force also apply to private defense. The right to protect oneself, others, or property from harm or unlawful aggression. The terms “self-defense” and “private defense” are essentially synonymous in Indian law. They refer to the right to use force to protect one’s own body, or the body and property of another, against an immediate threat. While the terms are used interchangeably, “private defence” is sometimes used to encompass a broader range of situations, including defending others or one’s property, in addition to self-defense BNS Act 2023 provides Private Defence as under: RIGHT OF PRIVATE DEFENSE Nothing is an offense which is done in the exercise of the right of private defence. Every person has a right, subject to the restrictions contained in section 37, to defend— (a) his own body, and the body of any other person, against any offence affecting the human body; (b) the property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass. When an act, which would otherwise […]
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WHETHER COURT HAS POWER TO AMEND THE ARBITRATION AWARD? CAN COURT REVIEW PENDING BILL BEFORE PARLIAMENT?
Recently, this query was referred to 5-Judge Bench of the Supreme Court in the matter of Gayatri Balasamy The facts of the case and the reference points are as under: Gayatri Balasamy vs M/S Isg Novasoft Technologies Limited on 30 April, 2025 This reference to a Bench of five judges is primarily to decide the correctness of the judgment of this Court in Project Director, National Highways No. 45 E and 220 National Highways Authority of India Vs. M. Hakeem and Anr., (2021) 9 SCC 1. In the said judgment, this Court held that while exercising powers under Section 34 of the Arbitration and Conciliation Act, 1996 (‘A&C Act’ for short), a Court hearing the petition had no power to “Modify” the Award. A three- Judge Bench of this Court on 20.02.2024, after noticing that there are decisions of this Court which have either modified the awards of the Arbitral Tribunals or upheld orders challenging modified awards and after observing that an authoritative pronouncement is required on this issue, placed the matter before the Hon’ble Chief Justice for constitution of an appropriate Bench. On 23.01.2025, by an order, this Court directed the matter to be placed before a Constitution Bench and that is how the matter has presented itself. THE FOLLOWING QUESTIONS OF LAW WERE REFERRED TO A LARGER BENCH: “1. Whether, the powers of the Court under Sections 34 and 37 of the Arbitration and Conciliation Act 1996 will include the power to modify an arbitral award? If the power to modify the award is available, whether such power can be exercised only where the award is severable, and a part thereof can be modified? Whether the power to set aside an award under Section 34 of the Act, being a larger power, will include the power to modify an arbitral award and if so, to what extent? Whether the power to modify an award can be read into the power to set aside an award under Section 34 of the Act? Whether the judgment of this Court in Project Director NHAI vs. M. Hakeem (2021) 9 SCC 1, followed in Larsen Air Conditioning and Refrigeration company vs. Union of India, (2023) SCC OnLine SC 982 and SV Samudram vs. State of Karnataka, (2024) SCC OnLine SC 19 lay down the correct law, as other benches of two Judges (in Vedanta Limited vs. Shenzden Shandong Nuclear Power Construction Company Limited, (2019) 11 SCC 465, Oriental Structural Engineers Pvt. Ltd. vs. State of Kerala, (2021) 6 SCC 150 and M.P. Power Generation Co. Ltd. vs. Ansaldo Energia Spa, (2018) 16 SCC 661 and three Judges (in J.C. Budhraja vs. Chairman, Orissa Mining Corporation Ltd. (2008) 2 SCC 444, Tata Hydroelectric Power Supply Co. Ltd. vs. Union of India, (2003) 4 SCC 172 and Shakti Nath vs. Alpha Tiger Cyprus Investment No.3 Ltd., (2020) 11 SCC (a) The Courts exercising power under Section 34 and Courts hearing appeals thereunder have no power to “modify” an award. (b) The power to modify is not a lesser power to that of the power to set aside, as the two operate in separate […]
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