Consumer Connect: 'MOFA Amendment Is Not Legal Without Presidential Approval,' Says Expert

Q. I have been reading with great interest your comments on the controversial MOFA Amendment Bill, 2025, which seeks to substantially curtail the scope of the present MOFA. I now understand that the governor has already given his assent to the said bill and as such the bill has now become part of the MOFA and has come into effect. Is it true? I also read that the Supreme Court had struck down West Bengal’s Housing Industry Regulation Act, 2017, for conflicting with RERA. Since some provisions of MOFA and RERA are overlapping and at times conflicting with each other, is entire MOFA also not liable to be struck down as inconsistent with RERA? —– Rahul Karnik, Wagle Estate, Thane A.

Yes, the governor has given his assent to the bill, and the same has been published in the gazette notification dated December 31, 2025. As such, the said amendment has come into effect. This will allow promoters of MahaRERA-registered projects against whom prosecutions have been launched to go scot-free, benefiting unscrupulous builders who have committed various criminal offences of cheating honest homebuyers over the last 10 years. Unfortunately, the governor did not think it fit to give a hearing to Mumbai Grahak Panchayat (MGP) despite its specific written request.

It is also shocking that the governor did not refer the bill to the President of India as required under Article 254 of the Constitution of India, even though the bill directly refers to and impacts RERA, which is a Central Act passed by the Parliament. It is important to note that the original MOFA, when enacted, had received Presidential assent on December 12, 1963. On this ground alone, the MOFA amendment, particularly Section 1A, brought into effect without Presidential assent, is liable to be struck down as ultra vires and unconstitutional.

It is true that in 2021, the Supreme Court struck down West Bengal’s Housing Industry Regulation Act, 2017 (WBHIRA), for conflicting with RERA. You have asked whether, since some provisions of MOFA and RERA are overlapping and at times conflicting, the entire MOFA is also liable to be struck down. My short answer is no. While there are some overlapping provisions, they are not inconsistent, contradictory or repugnant to each other. For instance, MOFA requires formation of a society or company as soon as the minimum number of persons required have taken flats in the project, whereas RERA requires formation of such society or association when 50% of the homebuyers have booked flats.

Similarly, MOFA requires execution of conveyance within four months from the date of the occupation certificate, while RERA prescribes three months. However, RERA specifically uses the words “in the absence of local law,” thereby recognising and giving primacy to local laws. Hence, in my opinion, there is no conflict or inconsistency between RERA and MOFA, and the apprehension of MOFA being struck down like WBHIRA is unfounded. It is also pertinent to note that one of the reasons WBHIRA was struck down by the Supreme Court was the absence of Presidential assent under Article 254.

While the original MOFA had received such assent, the present amendment has not been referred for the same. In my opinion, the governor was constitutionally bound to approach the President. The absence of Presidential assent itself is sufficient ground for courts to strike down this amendment as ultra vires and unconstitutional.

(Advocate Shirish V Deshpande is chairman, Mumbai Grahak Panchayat. Queries can be sent to him on email: shirish50@yahoo.com)

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Published on: Monday, January 12, 2026, 10:04 AM IST