TaxTMI 
TaxTMI 
2021 (3) TMI 1266
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.... required to register the Phase of its project "Lodha 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 is....
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....the building for which the part occupancy certificate had been 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 regist....
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....t No. CC60000000044384. By an order dated 12th September 2018, the Authority 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 i....
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....rtain definitions in the Act including 2(j) which defines "Building" which includes part 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 ....
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....t tied to date of commencement of the Act. The expression date of commencement of the Act 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 res....
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....ned plan and layout plans. The reading of Registration Rules 4(2), 4(3) and 4(4) read with Rule 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 wi....
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.... in support of his submission that these Circulars are of great relevance in that they contain an interpretation of the 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 ....
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....Patkar (supra). The Authority's order dated 18th December 2017 had attained finality, as the Complainants herein had not 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 err....
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....raised and decided by the Adjudicating Officer. Once there was such adjudication of the jurisdiction, this Court ought not to have 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/Complainan....
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....is provision cannot give a go by to Sub-Section 2 of Section 3 which contains a non-obstinate clause and thus, means that only the projects 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) an....
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....s". In the explanation 'I' to Rule 4 for the purpose of ongoing projects the phases of the project has been defined as the expression "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 con....
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....tively submitted that registration of a project is not a condition precedent for maintaining or entertaining a complaint/application for refund 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 ....
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....Section 34 of the Act include on the administrative side to register and regulate Real Estate Projects and on the adjudicatory side under Section 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 ....
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....can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of 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 evolu....
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....thereafter the only remedy available to parties is by way of an appeal to correct the decision. If the decision itself has been rendered in utter breach of the rules of procedure or in violation of the 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 proceeding....
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....building or a building consisting of apartments, or converting an existing building or a part thereof into apartments, or the development of land into plots or apartment, as the case may be, for the purpose of selling all or some of 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 dat....
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.... the promoter; (b) a brief detail of the projects launched by him, in the past five years, whether already completed or being developed, as the case may be, including the current status of the said projects, any delay in its completion, details of cases pending, details of type of land and payments pending; (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 ....
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....: Provided also that the promoter shall get his accounts audited within six months after the end of every financial year by a chartered accountant in practice, and shall produce a statement of accounts duly certified and signed by such chartered accountant and it shall be verified during the audit that the amounts collected for a particular project have been utilised for that project and the withdrawal has been in compliance 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 it....
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....d project, he shall be returned his entire investment along with interest at such rate as may be prescribed and the compensation in the manner provided under this Act. Section 14. Adherence to sanctioned plans and project specifications by the promoter (1) The proposed project shall be developed and completed by the promoter in accordance with the sanctioned plans, layout plans and specifications as approved by the competent authorities. (2) Notwithstanding anything contained in any law, contract or agreement, after 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....
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....he promoter fails to complete or is unable to give possession of an apartment, plot or building,-- (a) in accordance with the terms of the agreement for sale or, as the case may be, duly completed by the date specified therein; or (b) due to discontinuance of his business as a developer on account of suspension or revocation of the registration under this Act or for any other reason, he shall be liable on demand to the allottees, in case the allottee wishes to withdraw from the project, without prejudice to any other remedy available, to return the amount received by him in respect of that apartment, 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 be....
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....he promoter. (6) Every allottee, who has entered into an agreement for sale to take an apartment, plot or building as the case may be, under section 13, shall be responsible to make necessary payments in the manner and within the time as specified in the said agreement for sale and shall pay at the proper time and place, the share of the registration charges, municipal taxes, water and electricity charges, maintenance charges, ground rent, and other charges, if any. (7) The allottee shall be liable to pay interest, at such rate as may be prescribed, for any delay in payment towards any amount or charges to be paid under sub-section (6). (8) The obligations 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....
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....l estate agent, as the case may be; (f) to ensure compliance of the obligations cast upon the promoters, the allottees and the real estate agents under this Act and the rules and regulations made thereunder; (g) to ensure compliance of its regulations or orders or directions made in exercise of its powers under this Act; (h) to perform such other functions as may be entrusted to the Authority by the appropriate Government as may be necessary to carry out the provisions of this Act.] Section 59 : Punishment for non-registration under section 3.- (1) If any promoter contravenes the provisions of section 3, he shall be liable to a penalty which may extend up to ten per cent of the estimated cost of the real estate project as determined by the Authority. (2) If 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 b....
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....ilding with multiple wings or defined number of floors in a multi-storeyed building/wing; Rule 4 : Disclosure by promoter of ongoing real estate projects (1) The promoter of an ongoing real estate project, in which all buildings as per sanctioned plan have not received occupancy certificate or completion certificate, as the case may be, as provided by clause (b) of sub-section (2) of section 3, shall be required to submit application for registration for each such phase of the project, within a period of three months from the date of commencement of section 3. Explanation.- For the purpose of this sub-rule,- (I) the expression "phase of the project" means the building or buildings in a project in respect of which occupancy or completion certificate has not been received; (II) the term "completion certificate" shall mean such building permission or certificate, 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 bee....
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....ed to aggregate any contiguous land parcel through acquisition of ownership and title or by receiving development permission, including for re-development project and thereupon may also obtain phase-wise approvals from the relevant competent authorities to sanctioned plan under applicable laws, rules and regulations: Provided further that, at the end of ninety days from the date of notification of section 3 of the Act, the promoter shall not advertise, market, book, sell or offer for sale or invite persons to purchase in any manner any plot, apartment or building respect of such land parcel unless he registers such independent phase as a separate real estate project within the meaning of clause (c) of the Explanation to section 3: Provided also that, previous written consent of least two-third of the allottees may not be necessary for implementation of the proposed plans/specifications as disclosed in agreement executed with the allottee prior to 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 m....
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.... Real Estate Project and the promoter shall obtain registration under this Act for each phase separately. Section 4(2) (i) throws light on the interpretation of Section 3 as it provides for a declaration to be submitted by the Promoter supported by an Affidavit stating the time period within which it undertakes to complete the project or phase thereof as the case may be. Section 5(3) states that registration granted under the Section shall be valid for the period declared by the promoter under Section 4(2) (1) (c) for completion of the project or phase thereof. 55. Thus, from the plain language of Section 3(1) it is clear that registration must be in respect of any Real Estate Project or part of it. The window of three months in the first proviso of Section (3) (1) makes it clear that in so far as ongoing projects are concerned, the promoter has been given the said window of three months within which he can apply for registration of the said ongoing project. The ongoing project 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) ....
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....e 4 of the Registration Rules read with the Explanation to Rule 4(1). It is apparent therefrom that the phase of a project means the building or buildings in a project in respect of which the occupancy or completion certificate has not been received. It is clear from the definition of building under the Act that it includes any structure or erection or part of a structure or erection which is intended to be used for residential, commercial or for the purpose of any business occupation, profession or trade or for any other related purpose. Thus the word 'building' in Rule 4(1) and in the Explanation thereof has to be read in conformity with the definition of building under the Act. Thus including a part of a building. 58. Section 3 of the Act read with Rule 4(1) of the Registration Rules must be interpreted harmoniously with related provisions and cannot be looked in isolation as sought to be done by the complainants whilst interpreting Rule 4(1) of the Registration Rules. The 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....
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....r getting the project registered. In that sense, the application of RERA is prospective in nature. What the provisions envisage is that a promoter of a project which is not complete/sans completion certificate shall get the project registered under RERA, but, while getting project registered, promoter is entitled to prescribe a fresh time limit for getting the remaining development work completed. From the scheme of RERA and the subject case laws cited above, we do not find that first proviso to Section 3(1) is violative of Article 14 or Article 19(1)(g) of the Constitution of India. The Parliament is competent to enact a law affecting the antecedent events. In the case of State of Bombay vs. Vishnu Ramchandra (Supra), the Apex Court observed that the fact that part of the requisites for operation of the statute were drawn from a time antecedent to its passing did not make the statute retrospective so long as the action was taken after the Act came into force. The consequences for breach of such obligations 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 und....
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....rk of such projects." 62. It is apparent from the said decision that this Court has held that the Act will only apply after the project has been registered. Further, it has been held that the Act is prospective in operation. Accordingly, it is apparent that the Act cannot have any retrospective operation and will only apply to those projects which have been completed and registered either prior to commencement of the Act or in the case of ongoing projects, the project or a phase thereof have been completed and received the occupancy certificate/part occupancy certificate within the window of three months from the date of commencement of Section (3) of the Act i.e. 1st May, 2017. In the present case, it is an admitted fact that the Real Estate Project being developed by the Petitioners is an ongoing project as contemplated under Section 3(1) of the Act. The phase of which i.e. upto the 40th floor has been completed and received part occupancy certificate within the window of three months from the commencement 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 a....
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....pondents/Complainants own case which held that the MahaRERA gets jurisdiction to entertain only those complaints which relate to a registered project. The Full Bench of MahaRERA in its order dated 17th November, 2017, held that since the complaint pertained to Tower B which had received the part occupancy certificate and was not registered under the Act, MahaRERA did not have jurisdiction to entertain the complaint and hence the complaint was not maintainable. In the Respondents/Complainants own case, in the First Complaint, the Authority by following this decision of the Full Bench in its order dated 18th December, 2017 held in paragraph Nos. 3, 4 and 5 as under:- "3. However, the respondent has denied the contention raised by the complainant and stated that the present complaint is not maintainable, as the complainant has booked a fat bearing No. 2503 on 25th floor of B-Wing of Building known as the Lodha Diaro tower for which the part occupancy certificate has already been issued by the competent authority on 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 occ....
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....ch pertain to a project that does not require registration in the first place. 68. Given that the Authority in the First Complaint preferred by the Respondents/Complainants had decided the issue of maintainability against the Respondents/complainants, we are of the view that it was not open for the Adjudicating Officer to have entertained the Second Complaint. The decision of the Supreme Court in Sulochana Amma (Supra) would have same bearing. In that decision, it was held that when in a Suit for injunction when title is in issue for the purpose of granting injunction, the issue directly and substantially arises in that Suit between the parties. When the same issue is put in issue in a later Suit based on title between the same parties or their privies in a subsequent suit, the decree in the injunction suit equally operates as res judicata. 69. It is to be noted that subsequent to the maintainability of the First Complaint having been decided against the Respondents/Complainants, a Writ Petition had been preferred by the Respondents/complainants 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 ....
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....#39;ble Court seems ft." 71. It is necessary to note that in paragraphs 21 and 22 of the pleadings, it has been stated as under:- "21. Despite the illegal constructions in complete violation of the NOC granted by the Respondent nos. 3 and 4, Respondent No. 1 has granted the aforesaid Part Occupation Certificate dated 8 June 2017 ("Part OC") with respect to Wings No. 3, 4, 5 and 6 of the said project up to the 40th floor of the said wings on 8 June 2017. A copy of the said Part OC is hereto annexed and marked as Exhibit I. 22. It appears that the said Part OC has been hurriedly obtained by Respondent No. 5 from Respondent No. 1 in order to avoid being subject to the provisions of the Real Estate Regulation and Development Act 2016 ("RERA") which required all real estate projects which had not obtained an occupation certificate to be registered by 31 July 2017." 72. This Petition has been disposed of by an order dated 16th October, 2018 passed by the Division Bench of this Court which had subject to directions issued in paragraph 24 of the said order found no merit in the Petition. Paragraph Nos. 19, 20, 23, 24 and 25 are relevant which read as und....
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....ssued by the planning authority save as otherwise if prescribed in any law or any rules, regulations or by-laws made under any law for the time being in force. The petitioners are not in a position to point out any embargo in law which would prohibit respondent no. 5 from undertaking removal or demolishing of the upper floors so as to comply with the requirement of the height of the building in the approval and sanction granted by the concerned authorities. Thus, even on this count the contention of the petitioners cannot be accepted. 24. However, considering the concern of the petitioners in regard to safety of the lower floors/superstructure of the building, we direct the MMRDA to supervise, the further work to be undertaken by respondent no. 5 in regard to all precautions and safety norms to be observed in removal of the remaining part of the upper floors and restoration of terrace as per the requirements and the approved plans. Respondent no. 5 shall inform the Competent Authority of the MMRDA before commencing the remaining work, so that MMRDA can supervise the said work by deputing appropriate technical persons. We also accept the statement as made by the learn....
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....lity to this order. The fact however remains that the finding of Hon'ble Member that the authority is having jurisdiction as the amenities were not yet provided as per agreement was upheld by the Hon'ble Appellate Tribunal. Challenge to said finding was not pursued before Hon'ble High Court. 75. It has been held by the Supreme Court in the case relied upon by the learned Senior Counsel for the Petitioners in Virudhunagar Steel (Supra) that principles of res judicata is also be applicable in cases, where inter alia Writ Petitions have been disposed of by a speaking order. The Adjudicating Officer in the impugned order has not considered the judgment of this Court in Writ Petition (L) No. 2639 of 2018 which had not granted to the Respondents/Complainants the relief sought for viz. revocation of the part occupancy certificate and upon which for registration of the Petitioner project under the Act. 76. We do not find any substance in submissions of the learned Counsel for the Respondents/Complainants that where there is a subsequent law in respect of registration of the project, there cannot be estoppel or res judicata in regards to such declaration of law. We find th....
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....of the Act are retroactive. 78. Accordingly, we hold the first issue viz. whether the Adjudicating Officer had no jurisdiction to entertain the complaint as the subject project did not require registration in terms of Section (3) of the Act, in the affirmative. 79. Now coming to the second issue which has been raised in the Petition viz. whether the procedure and scheme of the Act warrant that it is solely within the Authority's sphere of powers to pass necessary orders and directions pertaining to aspects of registration in terms of Section 3 read with Section 31 of the Act? The Authority is established under Section 20 of the Act and derives its powers from Section 31 and its functions are contained in Section 34 of the Act. It has been observed in Sections 34(1) of the Act that the Authority has been entrusted with the function to register and regulate the Real Estate Projects. It is further provided in Section 3 of the Act that for ongoing projects on the date of commencement of the Act and where completion certificate had 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 ....
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....e application for registration of the projects. As can be seen from the provisions of Sections 3 and 4 of the RERA, application for registration of real estate project is to be made to this Real Estate Regulatory Authority, established under Section 20 of the said Act. Chapter 'V' of the RERA deals with the 'Establishment and Incorporation of the Real Estate Regulatory Authority'. Section 21 thereof deals with 'Composition of the said Authority' and Section 22 thereof deals with 'Qualification of Chairperson and Members of the Authority'. It is for this Authority to consider whether to grant registration or not and in case of breach of terms and conditions on the part of the Promoter, whether to revoke the said registration under Section 7 of the Act. The Rules framed under the RERA are more than sufficient to that effect. 77. As against it, the Adjudicating Authority under the RERA is defined in Section 2(a) as the 'Adjudicating Officer' appointed under sub-section (1) of Section 71. This 'Adjudicating Authority', as can be seen from Section 71(1) of the Act, is established for the purpose of adjudging the compensation....
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....lso been spelt out. Paragraph 23 reads thus:- "23. A perusal of the aforesaid provisions would show that, on and from the coming into force of the RERA, all real estate projects (as defined) would first have to be registered with the Real Estate Regulatory Authority, which, before registering such projects, would look into all relevant details, including delay in completion of other projects by the developer. Importantly, the promoter is now to make a declaration supported by an affidavit, that he undertakes to complete the project within a certain time period, and that 70% of the amounts realised for the project from allottees, from time to time, shall be deposited in a separate account, which would be spent only to defray the cost of construction and land cost for that particular project. Registration is granted by the authority only when it is satisfied that the promoter is a bona fide promoter who is likely to perform his part of the bargain satisfactorily. Registration of the project enures only for a certain period and can only be extended due to force majeure events for a maximum period of one year by the authority, on being satisfied that such events have, in....
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.... to the Real Estate Appellate Tribunal against decisions or orders of the authority or the adjudicating officer. From orders of the Appellate Tribunal, appeals may thereafter be filed to the High Court. Stiff penalties are to be awarded for breach and/or contravention of the provisions of the RERA. Importantly, under Section 72, the adjudicating officer must first determine that the complainant has established "default" on the part of the respondent, after which consequential orders may then follow. Under Section 88, the provisions of RERA are in addition to and not in derogation of the provisions of any other law for time being in force and under Section 89, RERA is to have effect notwithstanding anything inconsistent contained in any other law for the time being in force". 83. It has thus been held by the Supreme Court that under Section 72 of the Act that the Adjudicating Officer must first determine that the complainant has established the default on the part of the Respondent after which consequential orders may follow. However, this default is to be determined with regard to Sections 12, 14, 18 and 19 of the Act for which there is a power of adjudication under Section 71 o....
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....ll as the decisions of this Court and the Supreme Court which have clearly held that the Adjudicating Officer has only the power to adjudicate compensation under Sections 12, 14, 18 and 19. It is the function of the Authority under Section 34 for registering and regulating the Real Estate Projects. Thus it was the Authority who had the jurisdiction to decide on registration of the project under the Act. The Authority has already done so in the order dated 18th December, 2017 disposing of First Complaint of the Respondents/Complainants by holding that since the part occupation certificate had been granted upto 40th floor which included the fat of the complainants that phase of the project did not require registration with MahaRERA. Hence, the Authority having held that it had no jurisdiction to entertain the complaint, it was not open for the Adjudicating Officer to have decided otherwise in the impugned order. 86. We are thus of the view that the Adjudicating Officer had no jurisdiction to determine the registration of the project or phase thereof under Section 3(1) of the Act. This was solely within the sphere of powers of the Authority to pass the necessary orders and directio....