TaxTMI 
TaxTMI 
2021 (3) TMI 1266
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....odha Dioro" upto 40th floors under the provisions of Section 3 of the Real Estate (Regulation and Development) Act, 2016 (for short "the Act"), in view of the part occupancy certificate in respect thereof having been obtained/issued by the Mumbai Metropolitan Region Development Authority (for short "MMRDA") prior to 1st August 2017. 4. The Petitioners are in the business of developing real estate since the last over three decades. The Petitioners claim to be one of the largest real estate developers in the country with presence in foreign countries as well. The Petitioners are developing a project at Wadala, Mumbai named 'New Cuffe Parade' (for short referred to as "the project"). The development is a phase-wise development. 5. Respondent No. 1 is the State of Maharashtra. Respondent Nos. 2 and 3 are the Complainants on whose complaint, the Adjudicating Officer appointed under the provisions of the Act has passed the impugned order which is under challenge in this Petition. Respondent Nos. 2 and 3 for the sake of brevity shall be referred to hereinafter as "the Complainants". 6. A commencement certificate had been issued by MMRDA in respect of the project on 20th Februar....
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....n issued within the three months window for mandatory registration commencing from 1st May 2017 and ending on 31st July, 2017. 10. The Complainants filed complaints before the MahaRERA (the Authority under the Act) in the year 2017 inter alia alleging delay on the part of the Petitioners in handing over possession of the Flat and accordingly, seeking compensation. Since the project had not been registered with MahaRERA, the Complainants also sought directions against the Petitioners to register the project. 11. The Full Bench of MahaRERA had occasion to determine the issue as to jurisdiction of MahaRERA in a matter where part occupancy certificate had been received within the three month window from the commencement of Section 3 of the Act i.e. 1st May 2017. This was in the matter of the Mr. Prasad Patkar Vs. M/s. Runwal Projects Pvt. Ltd. Complaint No. CC600000000182. The Full Bench of MahaRERA by order dated 17th November, 2017 held that MahaRERA only gets the jurisdiction to entertain complaints in respect of registered projects and cannot entertain complaints in respect of projects that are not subject to registration. Since in that case the part occupancy certificate had bee....
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....y disregarded the Full Bench order and held that it has jurisdiction to entertain the complaint of Mr. Haresh Asher despite the fact that the project did not require registration. 17. In an Appeal preferred in the matter of Haresh Asher (supra), an order was passed by the Appellate Authority of MahaRERA on 25th October 2018 dismissing the Petitioner's challenge to the order dated 12th September 2018 passed by the Authority. The order of the Appellate Authority was challenged by the Petitioners by way of Second Appeal. The Second Appeal came to be disposed of by this Court, since the Petitioners and Mr. Haresh Asher arrived at a settlement. An affidavit was affirmed by Mr. Haresh Asher as part of the settlement whereby he acknowledged that he accepted the Petitioner's contention that the project did not require to be registered. 18. In November 2018, the Second Complaint was filed by the Complainants herein before the Adjudicating Officer seeking prayers similar to the one sought in the First Complaint. On account of the numerous complaints have been filed raising common issues to those raised in the Second Complaint, the Authority had decided to constitute a Full Bench to....
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....art of a structure or erection; Section 2(q) which defines "Completion Certificate" to mean Completion Certificate or such certificate by whatever name called certifying that a real estate project has been developed according to the approved sanctioned/layout plan; Section 2(zj) which defines "Project" to mean Real Estate Project and Section 2(zn) which defines "Real Estate Project" to mean the development of a building or a building consisting of apartments for the purpose of selling all or some of the said apartments and includes common areas. He has referred to Rule 2(p) of the Registration Rules which defines "Phase of a Real Estate Project" and which provides that a phase may consist of a building or a wing of the building in case of building with multiple wings or defined number of floors in a multi-storied building/wing. 22. The learned Senior Counsel for the Petitioners have submitted that from the definition of a "building" under the Act as well as of "phase of Real Estate Project" in Registration Rules, it is clear that building or the phase includes part of a building, defined number of floors in a multistoried building/wing. He has further submitted that considering th....
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.... is used in relation to the prior expression "projects that are ongoing". Read as a whole and as supported by the other provisions, the expression "and for which completion certificate has not been issued" relates to the obligation to make an application for registration within a three month window. He has submitted that the interpretation of the scope of the provisions of Section 3(1) is not affected by the non-obstinate clause in Section 3(2) (b). The non-obstinate clause in Section 3(2)(b) deals with completion certificate for Real Estate Projects prior to commencement of the Act. That is a situation where the entire project is completed, unlike Section 3(1), it does not use expression "or part of it". The scope of proviso to Section 3(1) and Section 3(2)(b) can never be the same or overlapping as would amount to attributing a surplusage to legislature which could not have been the intention. He has submitted that the explanation to Section 3 makes clear that as it requires every such phase to be considered a standalone real estate project and if the completion certificate is obtained in respect of any phase during the three month window, then as a standalone real estate project....
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.... 4(1) make it clear that a Real Estate Project or part or phase thereof which is completed within the registration window can never be registered, as the disclosures required to be made would have no meaning when applied to that completed part or phase. The tenor of Rule 4(2) and Rule 4(3) in respect of any part or phase which is registered in making of disclosure of what has been completed or what is yet to be completed. Further, Rule 4(4) indicates that upon registration the balance construction or development must be in accordance with sanctioned plans, which would have no meaning if what is registered is a completed Real Estate Project or part or phase which completion is evidenced by a completion certificate as defined in Explanation II to Section 4(1) of the Act. 27. The learned senior Counsel has placed reliance upon the FAQs in the Authority's website which contains "Frequently Asked Question" to assist all stakeholders in the understanding and implementations of the Act and the Registration Rules. He has submitted that these FAQs would have been contemporaneously issued with the coming into force of the Act and the Registration Rules. Question 11 of the "Additional FA....
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.... provisions and ambit of the Act by contemporaneous Authorities and are to be regarded as Authorities in 'contemporanea expositio'. These rulings of the Supreme Court include the cases of Desh Bandhu Gupta & Ors. Vs. Delhi Stock Exchange Association Ltd. (1979) 4 SCC 565, KP Varghese Vs. ITO, Ernakulum & Anr. (1981) 4 SCC 173 and S.B. Bhattarcharjee Vs. SD Majumdar & Ors. (2007) 10 SCC 513. He has submitted that the Division Bench of this Court in Neelkamal Realtors Suburban Pvt. Ltd. & Ors. Vs. Union of India & Ors. (2018) 1 AIR Bom R 558 has considered the challenge to the legality and constitutional validity of certain provisions of the Act as being violative of Articles 14, 19(1)(g), 20 and 300-A of the Constitution of India. The Division Bench of this Court whist considering the provisions of the Act has given an analysis of Section 3 of the Act. The Division Bench of this Court has held that the Act is prospective in nature and that the Act will apply only after getting the project registered. He has submitted that it is clear from this decision that the Act would only apply the projects which had been registered or require registration and not to project or phases th....
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....pursued any appeal challenging the same. The Complainants herein along with the certain other fat purchasers in the project had filed Writ Petition (L) No. 2639 of 2018 before this Court inter alia seeking various reliefs in respect of the project, including but not limited to cancellation of the part occupancy certificate and directions to the Petitioners to register the project with the Authority. This Court dismissed the Writ Petition vide its judgment dated 16th October 2018 subject to certain direction issued in paragraph 24 of the judgment directing MMRDA to supervise further work to be undertaken in respect of the project. 35. The learned Senior Counsel has submitted that the Respondents have incorrectly sought to file the second complaint, in view of the order passed in Haresh Asher's case (supra). This despite having accepted the settled position that the phase of the project in which they purchased the fat did not require to be registered. He has submitted that the ruling of the Authority in Haresh Asher's case (supra) proceeded on an erroneous appreciation of the order of this Court dated 31st July 2018 in the matter of Mohammed Zain Khan Vs. Maharashtra Real Es....
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....e exercised jurisdiction under Article 226/227 especially when there exists a statutory remedy in that regard. He has submitted that this Court in PIL-CJ-LD-VC No. 25 of 2020 held that the Act is a complete code in itself and Section 44 provides a remedy of appeal to any person aggrieved against any order or direction or decision of the Authority (or Adjudicating Officer) before the Appellate Tribunal and the Chairman of such Tribunal shall have been a Judge of this High Court. Thus, there is an alternate efficacious remedy under Section 44 of the RERA and hence, the Writ Petition deserves to be dismissed in limine by relegating parties to recourse of the statutory remedy. He has submitted that the Petitioners cannot be permitted to bypass the procedure prescribed in the Act and approach this Court in writ jurisdiction. In this context, he has relied upon the decision of the Supreme Court in case of Assistant Commissioner (CT) LTU, Kakinada & Ors. Vs. Glaxo Smith Kline Consumer Health Care Limited. 37. The learned Counsel for the Respondents/Complainants has submitted that the principles of res judicata are inapplicable in the present case. The First Complaint was rejected vide or....
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....ojects which fall in the exceptions set out in that sub-section shall be exempt from registration. Sub-Clause b of Sub-Section 2 of Section 3 makes it abundantly clear that a Real Estate Project that has received a completion certificate for the "Real Estate Project" prior to commencement of the Act (1st May 2017) would be exempt from registration. Therefore, the contention of the Petitioners that part occupancy certificate obtained after commencement of the Act which exempts registration is ex-facie contrary to the plain language of the provisions. 39. The learned Counsel for Respondents/Complainants has submitted that occupancy certificate is defined in Section 2(zf) of the Act, whereas completion certificate is defined in Section 2(q) of the Act. He has submitted that from the reading of these definitions, "part occupancy certificate" is not analogues to "completion certificate". He has drawn reference to Rule 4 of the Registration Rules and Explanation (ii) of Sub-Rule 1 of Rule 4 in particular. He has also relied upon Regulations 6(6), 6(7) and 6(8), of the Development Control Regulations for Greater Bombay, 1991. He has also drawn reference to certain definitions of Real Est....
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....on "phase of the project" means the building or buildings in a project of which the occupancy or completion certificate has not been received". He has submitted that from a reading of the explanation of ongoing projects, a phase of the project can only consist of a building and multiple buildings. He has accordingly submitted that Rule 2(P) of the Registration Rules does not apply to ongoing projects and it is thus impermissible to register only a defined number of floors of the building as a phase of an ongoing project. For an ongoing project, the obligation is occurred on the date of the Act coming into force and only a time period is prescribed for compliance. He has submitted that the mere obtaining of a part occupancy certificate in respect of an ongoing project is of no consequence and relevance to the obligation for registration of the project. A part occupancy certificate cannot be equated to a completion certificate. He has submitted that in any event the part occupancy Certificate dated 8th June 2017 issued in the present case is a conditional Certificate which itself shows that the work in respect of the portion of the building to which it relates is incomplete. Clause 6....
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.... or compensation or for interest. He has submitted that a reading of a registration as a condition precedent would be adding a condition which does not exist in the Act. It would be doing violence with the act and plain language of the section. He has submitted that Section 31 is the provision which enables any aggrieved person to file a complaint. There is no provision barring filing of any complaint in case of non registered Real Estate Project. It provides that "a person aggrieved" may file a complaint against the promoter and not a registered Real Estate Project. He has submitted that a person aggrieved, can allege breaches of Section 11 (functions and duties of the promoter), 14 (Adherence to sanctioned plans and defect liability), 18 (Return of amounts and compensation to allottees), 19 (Rights and duties of allottees) and also seek imposition of penalties under Section 59 (Punishment for non-registration under section 3), Section 60 (Penalty for contravention of section 4) and 61 (Penalty for contravention of other provisions of this Act). He has accordingly submitted that there can be no doubt that the jurisdiction, power and authority of the Authority and Adjudicating Offi....
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.... 34(f) (g), to enforce compliance of the obligations. Whereas a separate power is conferred on the Adjudicating Officer for adjudging compensation under Sections 12, 14, 18 and 19. He has drawn reference to sub section (1) of Section 71 of the Act, which contemplates transfer of proceedings pending before the Consumer Dispute Redressal Forum to the adjudicating officer. He has thus submitted that there is a clear bifurcation of powers between the Authority and Adjudicating Officer. 45. The learned Counsel for Respondents/Complainants has relied upon the decision of the Supreme Court in the case of Pioneer Urban Land and Infrastructure Limited and Anr. Vs. Union of India & Ors. (2019) 8 SCC 416 as well as the decision of the Single Judge of this Court in the matter of Lavasa (Supra). He has submitted that these decisions have clearly held that compliance under Section 12, 14, 18 and 19 is to be dealt with by an Adjudicating Officer who should have held office rank not lower than that of the District Judge and hence there would be proper adjudication of rights of allotees as well as promoters as observed in Neelkamal (Supra). Further in Pioneer (Supra) it has been held that it is th....
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.... the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose". 15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field. 20. Much water has since flown under the bridge, but there has been no corrosive effect on these decision....
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....he principles of natural justice occasioning or resulting in failure of justice, even then, the High Court need not or cannot step in. If that is how we approach this writ, possibly, we would frustrate and defeat the very object and purpose of issuing it. We have to ensure that the Court or the tribunal below follows the settled procedure and norms devised while rendering justice to parties. The orders and decisions must be in accord therewith The orders and decisions should not result in failure of justice. The bounds or limits of jurisdiction are known to these tribunals or courts subordinate to High Court. If the High Court is endowed with the power to issue this writ, then, the purpose of such endowment cannot be overlooked. It is but the duty of the High Court to ensure that the limits are not crossed or that the jurisdiction is not exercised in a manner contrary to the settled cannons of equality, fairness and justice. The very foundation of justice is sanctity of Court proceedings and the records. If that is totally lost, the, the High Court should not be a mute spectator. It must step in. 51. It is thus been held in Kamal K Singh (Supra) that if the order of the Tribunal s....
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....the said apartments or plots or building, as the case may be, and includes the common areas, the development works, all improvements and structures thereon, and all easement, rights and appurtenance belonging thereto; Section 3 : Prior registration of real estate project with Real Estate Regulatory Authority.- (1) No promoter shall advertise, market, book, sell or offer for sale, or invite persons to purchase in any manner any plot, apartment or building, as the case may be, in any real estate project or part of it, in any planning area, without registering the real estate project with the Real Estate Regulatory Authority established under this Act: Provided that projects that are ongoing on the date of commencement of this Act and for which the completion certificate has not been issued, the promoter shall make an application to the Authority for registration of the said project within a period of three months from the date of commencement of this Act: Provided further that if the Authority thinks necessary, in the interest of allottees, for projects which are developed beyond the planning area but with the requisite permission of the local authority, it ma....
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.... (c) an authenticated copy of the approvals and commencement certificate from the competent authority obtained in accordance with the laws as may be applicable for the real estate project mentioned in the application, and where the project is proposed to be developed in phases, an authenticated copy of the approvals and commencement certificate from the competent authority for each of such phases; (d) the sanctioned plan, layout plan and specifications of the proposed project or the phase thereof, and the whole project as sanctioned by the competent authority; (e) the plan of development works to be executed in the proposed project and the proposed facilities to be provided thereof including firefighting facilities, drinking water facilities, emergency evacuation services, use of renewable energy; (f) the location details of the project, with clear demarcation of land dedicated for the project along with its boundaries including the latitude and longitude of the end points of the project; (g) proforma of the allotment letter, agreement for sale, and the conveyance deed proposed to be signed with the allottees; (h) the number, type and ....
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.... with the proportion to the percentage of completion of the project. Explanation.--For the purpose of this clause, the term "scheduled bank" means a bank included in the Second Scheduled to the Reserve Bank of India Act, 1934 (2 of 1934); (E) that he shall take all the pending approvals on time, from the competent authorities; (F) that he has furnished such other documents as may be prescribed by the rules or regulations made under this Act; and (m) such other information and documents as may be prescribed. (3) The Authority shall operationalise a web based online system for submitting applications for registration of projects within a period of one year from the date of its establishment. Section 5 : Grant of registration.- (1) On receipt of the application under sub-section (1) of section 4, the Authority shall within a period of thirty days- (a) grant registration subject to the provisions of this Act and the rules and regulations made thereunder, and provide a registration number, including a Login Id and password to the applicant for accessing the website of the Authority and to create his web page and to fill therein the....
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....fter the sanctioned plans, layout plans and specifications and the nature of the fixtures, fittings, amenities and common areas, of the apartment, plot or building, as the case may be, as approved by the competent authority, are disclosed or furnished to the person who agree to take one or more of the said apartment, plot or building, as the case may be, the promoter shall not make-- (i) any additions and alterations in the sanctioned plans, layout plans and specifications and the nature of fixtures, fittings and amenities described therein in respect of the apartment, plot or building, as the case may be, which are agreed to be taken, without the previous consent of that person: Provided that the promoter may make such minor additions or alterations as may be required by the allottee, or such minor changes or alterations as may be necessary due to architectural and structural reasons duly recommended and verified by an authorised Architect or Engineer after proper declaration and intimation to the allottee. Explanation.- For the purpose of this clause, "minor additions or alterations" excludes structural change including an addition to the area or change in....
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....ment, plot, building, as the case may be, with interest at such rate as may be prescribed in this behalf including compensation in the manner as provided under this Act: Provided that where an allottee does not intend to withdraw from the project, he shall be paid, by the promoter, interest for every month of delay, till the handing over of the possession, at such rate as may be prescribed. (2) The promoter shall compensate the allottees in case of any loss caused to him due to defective title of the land, on which the project is being developed or has been developed, in the manner as provided under this Act, and the claim for compensation under this subsection shall not be barred by limitation provided under any law for the time being in force. (3) If the promoter fails to discharge any other obligations imposed on him under this Act or the rules or regulations made thereunder or in accordance with the terms and conditions of the agreement for sale, he shall be liable to pay such compensation to the allottees, in the manner as provided under this Act. Section 19 : Rights and duties of allottees.- (1) The allottee shall be entitled to obtain the info....
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.... of the allottee under sub-section (6) and the liability towards interest under sub-section (7) may be reduced when mutually agreed to between the promoter and such allottee. (9) Every allottee of the apartment, plot or building as the case may be, shall participate towards the formation of an association or society or cooperative society of the allottees, or a federation of the same. (10) Every allottee shall take physical possession of the apartment, plot or building as the case may be, within a period of two months of the occupancy certificate issued for the said apartment, plot or building, as the case may be. (11) Every allottee shall participate towards registration of the conveyance deed of the apartment, plot or building, as the case may be, as provided under sub-section (1) of section 17 of this Act. Section 31 : Filing of complaints with the Authority or the adjudicating officer. (1) Any aggrieved person may file a complaint with the Authority or the adjudicating officer, as the case may be, for any violation or contravention of the provisions of this Act or the rules and regulations made thereunder against any promoter allottee or ....
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.... any promoter does not comply with the orders, decisions or directions issued under sub-section (1) or continues to violate the provisions of section 3, he shall be punishable with imprisonment for a term which may extend up to three years or with fine which may extend up to a further ten per cent of the estimated cost of the real estate project, or with both. Section 71 : Power to adjudicate; (1) For the purpose of adjudging compensation under sections 12, 14, 18 and section 19, the Authority shall appoint, in consultation with the appropriate Government, one or more judicial officer as deemed necessary, who is or has been a District Judge to be an adjudicating officer for holding an inquiry in the prescribed manner, after giving any person concerned a reasonable opportunity of being heard: Provided that any person whose complaint in respect of matters covered under sections 12, 14, 18 and section 19 is pending before the Consumer Disputes Redressal Forum or the Consumer Disputes Redressal Commission or the National Consumer Redressal Commission, established under section 9 of the Consumer Protection Act, 1986 (68 of 1986), on or before the commencement of ....
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....ficate, by whatever name called, which is issued by the competent authority by or under the provisions of Maharashtra Regional Town Planning Act, 1966 or any other law for the time being in force, in accordance with which the permission for development has been granted. (2) The Promoter shall disclose all details of ongoing real estate project as required under sub-section (1) and (2) of section 4 and Rule 3 including the extent of development carried out till the date of application for registration under sub-rule (1), as per the last approved sanctioned plan of the project and the extent of development of common areas, amenities etc. completed in respect of buildings along with expected period of completion of the ongoing real estate project. The promoter shall also disclosed the original time period disclosed to the allottees, for completion of the project at the time of sale including the delay and the time period within which he undertakes to complete the pending project, which shall be commensurate with the extent of development already completed. The Promoter shall submit a certificate from the practicing project Architect certifying the percentage of completion of c....
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....o registration or for any alterations or additions or modifications in the sanctioned plans, layout plans and specifications of the buildings or common areas in the Real Estate Project which are required to be made by promoter in compliance of any directions or order, etc. issued by, the competent authority or statutory authority, under any law of the State or Central Government, for the time being in force. 54. It would appear from the definition of 'building' in Section 2(j), that a building includes a part of structure or erection which is intended to be used for residential or commercial purposes. Further, from the definition of project and Real Estate Project under Section 2(j) and 2(zn), it is apparent that a Real Estate Project means development of a building consisting of apartments for the purpose of selling of some of the said apartments and includes the common areas. It is further apparent from Rule 2(p) of the Registration Rules which defines phase of a Real Estate Project, that a phase would also consist of defined number of floors in a multi storied building or wing. These definitions assumes importance in the interpretation of Section 3 of the Act. From the ....
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....ct would be a Real Estate Project and/or a phase of the project which would require registration during the three months window after the commencement of Section 3 of the Act i.e. 1st May 2017. Section 3(2) (b) would apply only to completed projects that have received the completion certificate before the commencement of the Act and thus entitled to exemption from registration. Thus there is a clear distinction made between the projects 'that are ongoing projects' and 'projects which have received completion certificate before commencement of the Act'. The Real Estate Project or part of it which receives a part occupancy certificate during the three month window denotes its completion and upon completion would not require to be registered. There is no substance in the submission of the learned Counsel for the Respondents/Complainants that the part occupancy certificate issued in the present case did not denote completion of that phase of the project and was only a conditional part occupancy certificate. We accept the submission of the learned Senior Counsel for the Petitioners that the scope of the proviso to Section 3 and Section 3(2)(b) can never be the same or ov....
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....he decisions of the Supreme Court in Eera through Dr. Manjula Krippendorf (Supra) and New India Assurance Company Ltd. (Supra) relied upon by the learned Senior Counsel for the Petitioner and which lay down the principles of interpretation of provisions of the Act are to be borne in mind whilst interpreting these provisions under the Act and Registration Rules. 59. Further, the tenor of Rule 4(2) and 4(3) in respect of any part or phase which is registered is the making of a disclosure of what has been completed or what is yet to be completed. Rule 4(4) indicates that upon registration, the balance construction or development must be in accordance with sanctioned plans. These Rules would have no meaning if what is registered is a completed Real Estate Project or part or phase, thereof which completion is evidenced by a completion certificate as defined in Explanation II to Section 4(1) of the Act. 60. Learned Senior Counsel for the Petitioners has relied upon the Authorities Website which contains the FAQs to assist all shareholders in the understanding and implementation of the Act and Registration Rules. The relevant FAQ i.e. Q.11, where a specific query has been put viz. "if o....
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....bligations under RERA are prospective in operation. In os-wp-2737-17 & ors-RERA-JT.doc case ongoing projects, of which completion certificates were not obtained, were not to be covered under RERA, then there was likelihood of classifications in respect of undeveloped ongoing project and the new project to be commenced. In view of the material collected by the Standing Committee and the Select Committee and as discussed on the floor of the Parliament, it was thought fit that ongoing project shall also be made to be registered under RERA. The Parliament felt the need because it was noticed that all over the country in large number of projects the allottees did not get possession for years together. Huge sums of money of the allottees is locked in. Sizable section of allottees had invested their hard earned money, life savings, borrowed money, money obtained through loan from various financial institutions with a hope that sooner or later they would get possession of their apartment/fat/unit. There was no law regulating the real estate sector, development work/obligations of promoter and the allottee. Therefore, the Parliament considered it to pass a central law on the subject. During....
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....ement of Section 3 of the Act i.e. on 8th June, 2017. 63. Learned Senior Counsel for the Petitioners has also drawn reference to circular No. 18 of 2018 dated 17th July, 2018 and circular No. 23 of 2018 dated 27th November, 2018 issued by the Maharashtra Real Estate Regulations Authority setting out standard operating procedure for compliance of projects that though not registered ought to have been registered. These circulars have granted a hearing as well as opportunity to the informant to submit the details and pay fee of Rs. 5,000/- in the event that informant requires a hearing with the Authority. It is submitted by the learned Senior Counsel for the Petitioners that these circulars will have no bearing on a project or part thereof which does not require registration on count of it having been completed and part occupancy certificate having been received. 64. We have considered these circulars and we find that these circulars would have no application to those projects which do not require registration i.e. projects or parts thereof which have been completed and which have obtained occupancy certificate/part occupancy certificate. Circulars such as there would throw light on....
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....8th June, 2017. Therefore, the said completed phase of the project has not been registered with MahaRERA. The respondent has submitted a copy of the part occupancy certificate on record of this Authority. 4. An identical issue has been dealt with by the Hon'ble Full Bench of MahaRERA vide order dated 17th November, 2017 passed in Complaint No. CC006000000000182 along with other two matters, wherein it was held that as per section 3 of the RERA Act, 2016, the ongoing projects which have received the completion certificate/part occupancy certificate do not require registration and where the project is to be developed in phases, every such phase shall be considered a standalone real estate project. 5. In the present case, since that part occupation certificate for ground plus 40 upper floors which includes the fat of the complainant, has been obtained, there is no need to have registration with MahaRERA. As the fat of the complainant is not coming under the registered phase of the project with MahaRERA, this Authority does not have jurisdiction to entertain the present complaint." 67. Thus, the Authority held that since the Complainants had booked a fat bearing No....
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....ants in this Court being Writ Petition (L) No. 2639 of 2018. It is apparent from the pleadings and prayers in the said petition that the Respondents/complainants were also of the understanding that given the issuance of the part occupancy certificate to a phase of the Petitioner's ongoing project within the 3 month window, from commencement of Section 3(1) of the Act, that phase did not require registration under the Act. 70. The prayers in Writ Petition (L) No. 2639 of 2018 read as under:- "(a) Issue a Writ of Mandamus or a writ in the nature of mandamus, or any other appropriate writ, order or direction under the Article 226 of the Constitution of India calling for the records and papers pertaining to issuance of the part OC and CC and, be pleased to quash the same. (b) Issue a Writ of Mandamus or a writ in the nature of mandamus, or any other appropriate writ, order or direction under the Article 226 of the Constitution of India, as the circumstances of the case may require and direct the Respondent No. 1 to revoke the Part OC dated 8th June, 2017; (c) As the project is partially incomplete that Respondent No. 5 be directed to register the Ground to ....
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....0, 23, 24 and 25 are relevant which read as under:- "19. In the meantime, in view of the completion of the construction of the building, respondent no. 5 approached the MMRDA seeking part occupancy certificate so that the possession of the ready fats could be handed over to the fat purchasers who were awaiting possession of their units. The MMRDA on 8 June 2017 granted part occupation certificate exercising power under sub-regulation (8) of regulation 6 of the Development Control Regulations which reads thus:- Regulation 6:- Sub-regulation (8) : Part occupancy certificate :-When requested by the holder of the development permission, the Commissioner may issue a part occupancy certificate for a building or part thereof, before completion of the entire work, as per the development permission, provided sufficient precautionary measures are taken by the holder to ensure public safety and health. The occupancy certificate shall be subject to the owner's indemnifying the Commissioner in the form in Appendix XXIII. (emphasis supplied) 20. A plain reading of the above provision makes it clear that a part occupancy certificate of the building or pa....
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....arned Senior Counsel for respondent no. 5 that respondent no. 5 shall be taking all care and precaution in completing and restoring the balance work on the upper floors. 25. In the above circumstances, except for the above directions, we see no merit in the petition. It is accordingly rejected. No costs." 73. The Respondents/Complainants inspite of having failed in its Writ Petition seeking revocation of part occupancy certificate granted to the Petitioners and directions from this Court against the Authority to register the project of the Petitioners under the Act, had filed Second Complaint before the Adjudicating Officer. This filing had been done by apparently misusing the RERA registration number of a different phase of the another project. The Authority under the Act had decided to constitute a Full Bench to decide the issue of registration of the project or phase thereof which had received the occupation certificate within three months window under Section 3(1) of the Act since there were numerous complaints filed raising this issue. This order constituting the Full Bench was challenged by the Respondents/Complainants herein by filing Writ Petition No. 3701 of 2019,....
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....thority had inspite of knowing that there were rejections of three complaints by authorities which included the Respondents/Complainants complaint on the ground of maintainability of their complaints, still upheld the findings of the Adjudicating Officer on maintainability of the complaint on the count that a change of situation occurred in the matter of Mohd Zain Khan (Supra) which encompass within the sweep of RERA, unregistered projects also. As observed above, the decision of this Court in Mohd Zain Khan (Supra) does not give any such finding other than providing a mechanism for entertaining complaints in respect of projects which although requiring registration, have not been registered. This has no bearing on the facts of the present case, where admittedly the part occupation certificate had been issued in respect of the phase of the project of the Petitioners having been completed and hence not requiring registration under the Act. The law laid down by the Appellate Authority in the Haresh Asher (Supra) cannot be considered to be a declaration of law and which would not make the principles of res judicata applicable in the present case. The decisions of M.D. Jaiswal (Supra) ....
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....he Act. The power to adjudicate has been provided for under Section 71 of the Act. It is provided under that Section that for the purpose of adjudging the compensation under Sections 12, 14, 18 and 19, the Authority shall appoint in consultation with the Government one or more judicial officers as deemed necessary which is or has been a District Judge to be an Adjudicating Officer for holding an inquiry in the prescribed manner and after giving the person concerned a reasonable opportunity of being heard. Thus, the scope of the powers of the Adjudicating Officer is restricted to adjudication of compensation and only in respect of violation of Sections 12, 14, 18 and 19. 80. Learned Counsel for the Respondents/Complainant have infact conceded that the Act contemplates bifurcation of powers between the Authority and the Adjudicating Officer. It is for the Authority at the outset to determine whether the project requires registration and in cases where the project does not require registration, the provisions of the Act would be inapplicable. Learned Senior Counsel for the Petitioners is correct in his submission that the Adjudicating Officer could never have adjudged the complaint u....
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....said Act. Section 31 provides that, the complaints are to be filed by the aggrieved persons under the RERA with the 'Adjudicating Authority' for any violation or contravention of the provisions of this Act. 78. Therefore, the 'Authority', which grants registration under RERA, is different than the 'Authority', which is established to adjudicate the grievances of the aggrieved persons under the said Act. One Authority cannot encroach on the jurisdiction exercised or to be exercised by the another Authority. Here in the case, the 'Registration Certificate' to the Appellant is granted by the Regulatory Authority, established under section 20 of the said Act and now the Appellant is calling upon the 'Adjudicating Authority', established under Section 71 of the RERA, to go behind that 'Registration Certificate' and to hold that the provisions of RERA are not applicable to the Appellant. 79. In my considered opinion, this course is not permissible under the law to challenge the Registration Certificate issued by one 'Authority' before the another 'Authority' and calling upon that 'Authority' not to co....
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....t is found that the promoter defaults in complying with the various statutory requirements or indulges in unfair practices or irregularities. Importantly, upon revocation of registration, the authority is to facilitate the remaining development work, which can then be carried out either by the "competent authority" as defined by the RERA or by the association of allottees or otherwise. The promoter at the time of booking and issue of allotment letters has to make available to the allottees information, inter alia, as to the stage-wise time schedule of completion of the project. Deposits or advances beyond 10% of the estimated cost as advance payment cannot be taken without first entering into an agreement for sale. Importantly, the agreement for sale will now no longer be a one-sided contract of adhesion, but in such form as may be prescribed, which balances the rights and obligations of both the promoter and the allottees. Importantly, under Section 18, if the promoter fails to complete or is unable to give possession of an apartment, plot or building in accordance with the terms of the agreement for sale, he must return the amount received by him in respect of such apartment etc.....
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....e Act which is to be determined by the Authority. Learned Counsel for the Respondents/Complainants also submitted that the RERA Authority has two fold function, one on the administrative and other on the judicial/adjudicatory side. Thus the separation of powers is clearly envisaged by the provisions of the Act and that merely because the proviso to Section 71 provides for transfer of complaints in respect of matters covered under Section 12, 14, 18 and 19 pending before the Consumer Dispute Redressal Forum or such other Forum as established under Section 9 of the Consumer Protection Act, 1986 on or before the commencement of the Act, this does not detract from the powers of the Authority in contradiction to Adjudicating Officer to determine whether the Real Estate Project is required to be registered under the Act. 84. Although in the impugned order it has been held that there is bifurcation/dichotomy of complaints to be filed, the Adjudicating Officer, has gone on the premise that the complainant has a discretion to either file a complaint with the Authority or the Adjudicating Officer. This has been recorded in paragraph 54 of the impugned order. In paragraph 55 of the impugned ....