TaxTMI 
TaxTMI 
2021 (3) TMI 976
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.... (TNEB power supply was received in February, 2018), Boundary wall, staff quarters, internal roads, Medical Centre, STP. The Service Lift is commissioned on 29.03.2019. The Completion Certificate for the project is still pending. Though RERA came into existence in 2016, the 1st Respondent has not registered this project 'SERENE ROSE with RERA by violating RERA Rules. 3. The Complainant Association has also stated that while the 1st Respondent registered with RERA another project of construction of 28 Villas at Perur, Chetty Palayam Village, Coimbatore vide SI.No. 110 of 2017, the 1st Respondent has mentioned the current status of "Serene Rose" as 'nearing completion' and also the 'residential project as completed and handed over' which are statements contradicting each other. 4. The Complainant Association has stated in the Complaint that the common facilities viz. Boundary wall, Medical Centre, Staff quarters, STP, Roads and Gardens which were promised are still not constructed and no effort was made by the Respondent Promoter to improve the infrastructure (incomplete structure of Block-B standing bare for long time, ....
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.... wall including entrance gate, pavers roads, garden area, club house, lifts including service lifts have been provided. The medical centre is fully functional and is being operated beside the Club House. They have further submitted that all other infrastructures like STP (in place of Septic tanks), RO Plant, Driveway pavers, Genset, lifts as mentioned in the Complaint and found mention in the Agreement have been completed and handed over to the Service Provider as per the Agreement who is efficiently maintaining the same. 8. Regarding the staff quarters, the 1st Respondent has submitted that since the scheme as such has not been completed, two units have been taken on rent and converted into staff quarters and the rent is being borne by the Respondent/Service Provider, without adding the same to the maintenance charges collected from the Owners. The 1st Respondent also has denied that the Respondent has sold the amenities to the service provider and it is to be mentioned that the scheme was envisaged in a manner that the Developer being this Respondent shall restrict itself to the developmental activities including providing the amenities in the scheme. Since th....
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....ation also submitted that the buyers have never agreed to this proposal of building it in 4 phases at any point of time and the promised completion date of the whole project was 31.03.2016, 3 years from inception and this project must be considered as a single integrated project and should come under RERA's ambit and audit. 12. They have further submitted that the first occupant came to the community to occupy on 18.10.2017, though the facilities were partly complete, on invitation by Service Provider (M/s. Serene Senior Care P. Ltd) and the compulsions to shift as early as possible from rented accommodations. Assurances were given in a meeting convened on 08.05.2017 that all works connected with Block 'A' and 'C' and infrastructure will be completed by end July, 2017. But the works dragged on further till October, 2017 and electric supply from TNEB source was provided in February, 2018 only. The Sewage Treatment Plant is not functioning and t....
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....t registering the entire project with RERA and following questionable and dubious methods to get out of RERA purview. b) Declare this project as a single project and instruct the Respondent Promoter to complete the project in a time bound manner, particularly the common facilities and amenities. c) Instruct the Builder/Promoter to attend to the repairs/deficiencies reported in the flats/work handed over without further loss of time and before onslaught of another monsoon. The one year free warranty to start after the completion of all the repairs are attended to. d) All the common facilities to be handed over to the Residents Welfare Association in accordance with RERA Act and Rules. Association shall arrange to get these facilities maintained by using the Service Provider. 16. The Complainant Association has filed their Affidavit impleading the Respondent No.2 i.e. Columbia Pacific Communities P. Ltd. (previously known as Serene Senior Care P Ltd.) and prayed for the following: a) Operation of Sewage plant shall be completed and treated water shall be disposed properly. b) Long pen....
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....r want of jurisdiction, Also as there is no provision mandating registration of "service provider" under RERA, no dispute could be invoked before this Authority. 18. The 2nd Respondent has also stated that M/s. Serene Rose Residents Welfare Association is not an agreement holder with the 2nd Respondent, as such the above Association has no locus standi to file this complaint. The relationship of each Flat Owner and the 2nd Respondent is that of a "Senior Living Services Receiver" and "Services Provider" and hence this Complaint is not maintainable. The 2nd Respondent also stated that the Real Estate Regulation Act (in short Act) came into effect during July, 2017, much later point of time from the completion of the project. Hence, this Complaint does not fall within the purview of the Act and hence this complaint is not maintainable before this Authority as the Act cannot be invoked retrospectively. The 2nd Respondent also stated that a mere reading of the Act would show that the "service provider" is not falling within the purview of the Act, unlike the Builder and the Flat Owners and no claim or remedy could be made before this Forum. It is well settled law, wh....
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....facilities developed over 25,746 sq.ft. land owned by the 2nd Respondent. So it is absolutely illogical and unlawful to make a claim over the said facility to be handed over to them. It is an ulterior motive to grab the land with infrastructures developed in the 25,746 sq.t land exclusively owned by the 2nd Respondent. 22. The 2nd Respondent also stated that the Serene Rose -Retirement Community is a group of freehold residential houses for the specific purposes of comfortable independent living, created/developed by Serene Senior Living Pvt. Ltd. (SSL) specifically for senior citizens and which is maintained and operated as a senior citizen retirement community by Columbia Pacific Communities Pvt. Ltd. (formerly known as Serene Senior Care Pvt. Ltd.). The project spread over 5.76 acres of land for 160 apartments in 4 Blocks and 21 independent Villas with common areas with amenities, internal roads, guest house, Medical centre, etc, The Developer had only constructed 2 Blocks (AC) with 40 apartments in 'A' and 48 apartments in 'C' Block. Of them 68 were sold and handed over to the clients. ....
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....e unprocessed sewage water is pumped into pits within the compound resulting in pollution of ground water. This is not proper and not in conformity with the guidelines of TN Pollution Control Board. 26. The Complainant Association also brought to the notice of this Authority that during the trial runs done for the polluted sewages, foul smell disturbed the local villagers residing nearby and they had gathered in front of their community. They also threatened them to face consequences if the foul smell continues to emanate from their place. This is a serious matter and the senior citizens residing in the apartments are now living under constant fear. They have also submitted that TNRERA came into force in July, 2017 and the project "Serene Rose" was not completed by that time and hence comes under the purview of TNRERA under "Ongoing Project". Also many common facilities are still to be in place (including sewage treatment plant) boundary wall, inside roads, Medical centre, staff residence, walkway, etc. They have also stated that as per RERA Rules. "Service Provider" should have been selected by the Residents Association, after the Promoter hands over the common facili....
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....nt with SSC/CPC itself is not tenable, there is no question of the deposit being justified. This amount should be returned or at least the interest thereon should be credited to the owners or the Association account. Also the point made in the Common Counter Affidavit of the 2nd Respondent in para-24 is not justifiable due to the reasons already mentioned and the Residents' Association should be the owners of the Common Facilities (once Promoter completes their part). Finally, the Complainants Association has submitted the following to this Authority: a) Order the Promoters (SSL) to expeditiously complete the project with an agreed time schedule. b) Order the Promoters/Service Providers (SSL and SSC/CPC) to hand over the ownership of all common amenities to the Association. c) Uphold the right of the Association to choose its service providers. d) Order the refund of security deposit unjustifiably collected from the owners with interest thereon or credit the interest amount to the Association account so that it can be used for the benefit of the owners. 30. In the written arguments, the Compl....
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....ounter Affidavit filed by the 1st Respondent, the response of the Complainant Association to the Counter Affidavit filed by the 2nd Respondent and the arguments by way of written submissions of all the parties, carefully. 35. The Authority would first determine whether this project is an on-going project or not. i) The crucial date to determine whether this Real Estate project is a completed project or not is 01.05.2017, the date of commencement of Section-3 of the Act. ii) It is seen that this Real Estate project for Block-A & C, the electricity supply from TANGEDCO has been received in February, 2018 as stated by the Complainant. iii) The service Lift has been commissioned on 29.03.2019 (Annexure-III of the typed set of papers attached with the Complaint). iv) The Complainant has also stated that assurances were given in the meeting convened on 08.05.2017 that all works connected with Block- A & C and all infrastructures will be completed by end July 2017, but the works continued till October, 2017. The electricity was provided only in February, 2018. v) Minutes of the meeting have been furnished b....
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....le in the common areas including common amenities and facilities promised in the Construction Agreement to the Association of Allottees and shall hand over the physical possession of common areas which includes common amenities and facilities promised in the Construction Agreement to the Association of Allottees. This shall be done by the 1s` Respondent Promoter in favour of the Complainant Association which is the Association of Allottees before 28.02.2021. * Simultaneously, the 1st Respondent Promoter shall ensure that all the common amenities and facilities as promised in the Construction Agreement with the allottees are completed in all respects before 31.12.2020. 37. The Club House is a common facility promised to the Allottees in the Construction Agreement by the 1st Respondent Promoter. * Therefore, the land on which the Club House is constructed and the superstructure of the Club House along with all the facilities inside the Club House has to be conveyed to the Association of Allottees by the 1st Respondent Promoter. * Regarding leakage of roof, plumbing problems, leaking pipes, wet ....
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....ted the sale deed dated 27.10.2017. This act of sale by the 1st Respondent Promoter is not only in contravention of the Section 17 of the RERA Act, but also against the provision in the Construction Agreement in para-22, 23 and 24 specifying the eligible person to whom the undivided share in the project can be sold. 41. As this project is meant for retirement community, the Construction Agreement itself has specific provision in para-22 of the Agreement that the purchasers agreed that the project Serene Rose is meant for and is ideally suited for citizens above 50 years of age. * Therefore, the action of selling of undivided share of this Real Estate Project to a Service provider Company is in contravention of the Construction Agreement entered by the 1st Respondent Promoter with the Allottees and also in contravention of Section-17(1) of the Act. 42. It is also seen from the Construction Agreement executed with the Allottees of this Project that the Club House is a common facility and the sale consideration paid....