Bombay High Court
Macrotech Developers Limited ( Earlier ... vs The State Of Maharashtra And Ors on 1 March, 2021
Author: R.I. Chagla
Bench: K.K. Tated, R.I. Chagla
Digitally signed
Jitendra by Jitendra S.
S. Nijasure
Date: 2021.03.02
Nijasure 19:16:33 +0530 WPST-1118-21.doc
Sharayu Khot & JSN.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (ST) NO. 1118 OF 2021
Macrotech Developers Limited
(earlier known as Lodha Developers Ltd.)
a company incorporated under the
Companies Act, 1956, having its offce at
Lodha Excelus, Apollo Mill Compound,
...Petitioners
Mahalakshmi, Mumbai - 400 012.
Versus
1. The State of Maharashtra
2. Sanjay Phulwaria
Having address at C/33,
Railway Offcers Flats,
Badhwar Park, Colaba
Mumbai 400005
3. Paromita Phulwaria
Having address at C/33,
Railway Offcers Flats,
Badhwar Park, Colaba
Mumbai 400005 ...Respondents
----------
Mr. Sharan Jagtiani, Senior Counsel a/w Mr. Prashant Gawali,
Mr, Akshay Doctor, i/by Prashant Gawali for the Petitioners.
Mr. C.D. Mali, AGP for the Respondent-State.
Mr. Mayur Khandeparkar, Counsel a/w Mr. Vikramjit Garewal
Mr. Kaustubh Patil, i/by P.D. Gandhy & Associates, for the
Respondent Nos. 2 and 3.
----------
CORAM : K.K. TATED &
R.I. CHAGLA, JJ.
Reserved on : 26 February 2021
Pronounced on : 1 March, 2021
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JUDGMENT :(Per R.I. Chagla, J.)
1. Rule. Rule made returnable forthwith.
2. By this Petition fled under Article 226 of the Constitution of India, the Petitioners have sought quashing and setting aside of the order dated 31st December 2020 passed by the Adjudicating Offcer, Maharashtra Real Estate Regulatory Authority (for short "MahaRERA") in Complaint No. CC 006000000056889 ("the impugned order").
3. The Petitioners have further sought for declaration that the Petitioners are not required to register the Phase of its project "Lodha Dioro" upto 40th foors 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 certifcate 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 2/99 WPST-1118-21.doc 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 Offcer 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 certifcate had been issued by MMRDA in respect of the project on 20th February 2013 allowing the Petitioners to commence construction of the buildings forming part of the project. Thereafter, the registered agreement for sale had been entered into between the Petitioners and the Complainants as the purchasers in respect 3/99 WPST-1118-21.doc of Flat No. 2503 (for short "the fat") located in Wing A of the building called Lodha Dioro on 23rd July 2013 (for short "the building"). Under the said agreement for sale dated 23rd July 2013, the carpet area has been defned in Clause 1.9 of the agreement for sale. The total consideration payable in respect of the Flat is a sum of Rs. 2,70,78,705/- to be paid in a staggered manner as more particularly provided for in Clause 5 of the said agreement. It was provided in Clause 11 of the said agreement that the Petitioners would handover the possession of the fat to the Complainants for ft out by 31st December 2015.
7. On 1st May 2017, the relevant provisions of the Act came into force. Under Section 3 of the Act, the Promoters were required to register their ongoing projects with the concerned Authority (in the present case, MahaRERA) within three months from the date on which the provisions of the Act came into force on 1st May, 2017 (i.e. by 31st July, 2017). It is to be noted that the 2016 Act received the presidential assent on 25th March 2016.
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8. Under the Maharashtra Real Estate (Regulation and Development) (Registration of Real Estate Projects, Registration of Real Estate Agents, Rates of interest and Disclosures on Website) Rules, 2017 (for short " the Registration Rules"), Rules were made by the Government of Maharashtra in exercise of its powers conferred by Clauses (a), (ab), (ac), (b) to (k), (oa), (p) and (zf) of Sub-section 2 of Section 84 of the Act. These Registration Rules were published in the Maharashtra Government Gazette on 8th February 2016. One such Rule being Rule 4 provides for disclosure by promoter of ongoing real estate projects. The Rule 4 (1) of the Registration Rules clarifes that the three months window for mandatory registration for each such phase of the project shall commence from 1st May 2017 i.e. when Section 3 was brought into force.
9. On 8th June 2017, a part occupancy certifcate was received in respect of ground plus 40 foors of the building Lodha Dioro. The Complainants' Flat was located on the 25th foor of the building for which the part occupancy certifcate had been issued within the three months window for 5/99 WPST-1118-21.doc mandatory registration commencing from 1st May 2017 and ending on 31st July, 2017.
10. The Complainants fled 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 certifcate 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.1. 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 1 Complaint No. CC600000000182 6/99 WPST-1118-21.doc to registration. Since in that case the part occupancy certifcate had been received in respect of B & C Towers it was held that the developer therein had rightly not registered the two towers. It was held that since the Complainants' fat was situated in Tower B which had not been registered under the Act, MahaRERA had no jurisdiction to entertain the complaints. They were held to be not maintainable.
12. Thereafter the frst complaint fled by the Complainants herein before the MahaRERA was dismissed by an order passed by the Authority under the Act on 18th December 2017 on the ground that the part occupancy certifcate had already been received for that part of the building in which the fat was located and therefore, there was no question of registration of the same with MahaRERA.
13. Being aggrieved by the dismissal of their complaints, the Complainants fled Writ Petition (L) No. 2639 of 2018 against inter alias the Petitioners in this Court. Certain other fat purchasers were also shown as purchasers in the said Writ Petition. The Complainants/Respondents herein 7/99 WPST-1118-21.doc challenged the grant of the part occupancy certifcate by the MMRDA in favour of the Petitioners and sought for revocation of the part occupancy certifcate and upon which for a direction against the Petitioners to register the ground plus 40 foors of the building with the MahaRERA.
14. The possession letter was issued by the Petitioners on 10th April 2018, the contents whereby have been counter-signed/acknowledged by the Complainants, whereby the Complainants have been handed over possession of the fat upon the terms and conditions set out therein. It is expressly mentioned in the possession letter that upon accepting keys of the fat, the Complainants were deemed to have confrmed and undertaken that they were satisfed with the fat and they had no complaints/grievance of any nature whatsoever against the Petitioners.
15. This Court by an order dated 16th October 2018 dismissed Writ Petition (L) No. 2639 of 2018 subject to directions issued in paragraph 24 of the said order whereby the MMRDA is directed to supervise further work to be 8/99 WPST-1118-21.doc undertaken in respect of the building.
16. MahaRERA had further occasion to consider the complaint fled by one of the fat purchasers in respect of the project in the case of Mr. Haresh Jethmal Asher Vs. M/s. Bellissimo Crown Buildmart Pvt. Ltd.2. 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 affdavit was affrmed by Mr. Haresh Asher as part of the settlement whereby he acknowledged that he accepted the 2 Complaint No. CC60000000044384 9/99 WPST-1118-21.doc Petitioner's contention that the project did not require to be registered.
18. In November 2018, the Second Complaint was fled by the Complainants herein before the Adjudicating Offcer seeking prayers similar to the one sought in the First Complaint. On account of the numerous complaints have been fled raising common issues to those raised in the Second Complaint, the Authority had decided to constitute a Full Bench to decide these issues. This was challenged by the complainants before this Court by fling Writ Petition No. 3701 of 2019. On 11th September 2019 this Court disposed of the said Writ Petition by directing the Authority to take up the Second Complaint in accordance with law and consider the objection raised by the Petitioners with respect to jurisdiction and powers of the Authority. This Court had thus kept the Petitioner's challenge to jurisdiction open.
19. The impugned order was passed by the Adjudicating Offcer on 31st December 2020 after considering the detailed reply fled by the Petitioners raising objections as 10/99 WPST-1118-21.doc to the maintainability of the Second Complaint. The Adjudicating Offcer held that the Second Complaint was maintainable and the Adjudicating Offcer had jurisdiction to try and hear the same. The impugned order concludes that since the project was a "luxury project", the petitioners ought to have avoided a situation where the service ducts are passing through the bedrooms. Compensation of Rs.2,00,000/- has been granted to the complainants. In addition the Petitioners have been directed to pay the Complainants a sum of Rs.2,70,664/- for defcit carpet area. The Petitioners have been directed to pay interest at the rate of 10.40% p.a. on all monies payable under the impugned order from the date of fling the complaint along with costs quantifed at Rs.20,000/- Being aggrieved by the impugned order, the present Writ Petition has been fled.
20. The Complainants have fled their Reply to the present Writ Petition. This Court issued Rule in the present Writ Petition on 29th January 2021. Since the parties to the Petition has sought for expedited hearing of this Petition, this Petition has been taken up for fnal disposal. 11/99
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21. Mr. Sharan Jagtiani, the learned Senior Counsel appearing for the Petitioners have submitted that on a true and proper interpretation of the relevant Sections, Rules, and circulars, a Real Estate Project or a Phase of Real Estate Project in respect of which completion certifcate (including part occupancy certifcate) having been received before the statutory period of registration of three months from 1st May 2017 comes to an end, is not required to be registered under the Act and Registration Rules thereunder. He has relied upon certain defnitions in the Act including 2(j) which defnes "Building" which includes part of a structure or erection; Section 2(q) which defnes "Completion Certifcate" to mean Completion Certifcate or such certifcate by whatever name called certifying that a real estate project has been developed according to the approved sanctioned/layout plan; Section 2(zj) which defnes "Project" to mean Real Estate Project and Section 2(zn) which defnes "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 defnes "Phase of a Real Estate Project" and which provides that a phase may 12/99 WPST-1118-21.doc consist of a building or a wing of the building in case of building with multiple wings or defned number of foors in a multi- storied building/wing.
22. The learned Senior Counsel for the Petitioners have submitted that from the defnition 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, defned number of foors in a multistoried building/wing. He has further submitted that considering the defnition of "building," it would follow a Real Estate Project could also in a given case be the development of a part of the structure i.e. not the entire building but a defned part of the building. He has further placed reliance on Sections 3, 4 and 5 of the Act. He has submitted that from the plain language used in the proviso to Section 3, it is clear that registration of the ongoing project is to be done within the period of three months from the date of commencement of the Act. Section 3(1) sets out a disability that results from failure to register. It provides that promoters shall not advertise, market, book, sell or offer for sale any apartment or building in 13/99 WPST-1118-21.doc any real estate project or part of it without registering the real estate project with the Authority. He has referred to Section 3(2) and has submitted that it is a non-obstante clause vis-a-vis Section 3(1) and provides circumstances in which no registration of a Real Estate Project shall be required. Section 3(2)(b) indicates one such circumstance where the Promoter has received the completion certifcate for a Real Estate Project prior to the commencement of the Act. He has submitted that Section 3 contains an important explanation. According to the explanation, it says that for the purpose of this Section, where the Real Estate Project is to be developed in phases, every such phase shall be considered to be a standalone Real Estate Project and the promoter shall obtain registration under the Act for each phase separately. He has then referred to Sections 4 and 5 of the Act. He has submitted that Section 4(2)(l) is particularly signifcant because it throws light on the interpretation of Section 3. This Section requires a promoter to submit a declaration supported by Affdavit stating inter alias in Sub-Clause (c) the time period within which he undertakes to complete the project or phase thereof, as the case may be. Section 5(3) is again signifcant for interpretation of Section 3. It provides that the registration granted under this Section 14/99 WPST-1118-21.doc shall be valid for the period declared by the promoter under Section 4(2)(l)(C) for completion of the project of phase thereof.
23. The learned senior Counsel has submitted that the reference to the completion certifcate not being issued in Section 3(1) is not 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 certifcate 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 certifcate 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 15/99 WPST-1118-21.doc 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 certifcate is obtained in respect of any phase during the three month window, then as a standalone real estate project would not require registration. He has submitted that Section 4(2)(l)(C) and Section 5(3) reinforce the interpretation of Section 3 as it clearly indicates therein that a declaration is required to be fled at the time of registration which is to indicate the time period within which the developer indicates to complete the project or phase thereof. He has submitted that Section 3 must be interpreted in the context of related provisions and harmoniously with the related provisions. In this context, he has placed reliance upon the decision of the Supreme Court in case of Eera through Dr. Manjula Krippendorf Vs. State (NCT of Delhi) & Anr .3 and New India Assurance Company Ltd. Vs. Nusli Neville Wadia & Anr.4.
24. The learned Senior Counsel for Petitioners has 3 (2017) 15 SCC 133 4 (2008) 3 SCC 279 16/99 WPST-1118-21.doc submitted that it could never have been the intent of the legislature to treat promoters, all of whom register during the statutory three month window, any differently from each other. The statutory three months window is a uniform and universally available time period for registering.
25. The learned senior Counsel has thereafter referred to the Registration Rules issued under the Act and in particular Rules 3 and 4.
26. The learned Senior Counsel for the Petitioners has submitted that from the nature of disclosures to be made under Rule 3, it is clear that if a Real Estate Project or a part or a phase has been completed, the nature of disclosures which are for proposed plans and proposed utilisation would have no applicability and no meaning. He has then referred to Rule 4(1), which provides that a promoter of ongoing Real Estate Project in which all buildings as per the sanctioned plan has not received occupancy certifcate or completion certifcate as the case may be, as provided by Section 3(2)(b) shall be required to submit application for registration for each such phase of the 17/99 WPST-1118-21.doc project as provided for in Section 3. The explanation to this Sub-Rule states that a phase of a project means a building or buildings in a project in respect of which Occupancy or Completion Certifcate has not been received. Further, Rule 4(2) requires disclosures of ongoing Real Estate Projects. Rule 4(4) requires promoter to construct and develop the Real Estate Project in accordance with sanctioned 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 certifcate as defned in Explanation II to Section 4(1) of the Act.
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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 FAQs 2" reads as follows:
"Q.11: If O.C./B.C.C. are issued in May/June/July, does project have to be registered?
Ans.On-going projects have time till 30th July to register. If before doing registration, the project has got OC/BCC, the project has been completed as per Section 5(3) of the Act. Hence, it does not require registration."
28. The learned Senior Counsel for Petitioners has submitted that it is clear from the answer in the FAQs that if the occupancy certifcate/building completion certifcate which would include a part occupancy certifcate had been issued under the MRTP Act/DC Regulations 1991 in respect of that part or phase before 30th July 2017, that project is completed 19/99 WPST-1118-21.doc as per Section 5(3) and does not require registration.
29. The learned Senior Counsel for Petitioners has relied upon the Forms A and B under Rule 3(3) and Rule 3 (6) of the Registration Rules and in particular, Clause 3 of Form which requires. "That the time period within which the project shall be completed by me/promoter from the date of registration/project" to be flled up. He has also relied upon registration certifcate of the project in Form "C" under Rule 6(a) of the Registration Rules. He has also placed reliance upon Circular No. 18/2018 dated 17th July 2018 issued by the MahaRERA setting out the Standard Operating Procedure for handling complaints and Circular No. 23/2018 dated 26th November 2018 issued by MahaRERA setting out the Standard Operating Procedure for handling complaints against projects that though not registered, ought to have been registered.
30. The learned senior Counsel has submitted that it is specifcally provided under these Circulars that in respect of projects which ought to have been registered, but have not been registered, the promoters had been given an 20/99 WPST-1118-21.doc opportunity of hearing by the Authority upon payment of a fees and upon such hearing the Authority shall give its Ruling. These circulars do not envisage cases which do not require registration, as in the present case where the part occupancy certifcate has been received for the completed phase of the building in respect of which the complaint has been received.
31. The learned Senior Counsel for Petitioners has relied upon certain Supreme Court rulings 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.5, KP Varghese Vs. ITO, Ernakulum & Anr.6 and S.B. Bhattarcharjee Vs. SD Majumdar & Ors.7. He has submitted that the Division Bench of this Court in Neelkamal Realtors Suburban Pvt. Ltd. & Ors. Vs. Union of India & Ors.8 has considered the challenge to the 5 (1979) 4 SCC 565 6 (1981) 4 SCC 173 7 (2007) 10 SCC 513 8 (2018) 1 AIR Bom R 558 21/99 WPST-1118-21.doc 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 thereof which are not to be registered on count of their having been completed.
32. The learned Senior Counsel has further submitted that the Adjudicating Offcer did not have power to entertain the complaints without registration of the project. He has submitted that the Act contemplates a bifurcation between the Authority and the Adjudicating Offcer. A plain reading of Section 71 of the Act makes it evident that the scope of the Adjudicating Offcer's power is restricted to adjudication of compensation and that too only in respect of matters arising 22/99 WPST-1118-21.doc out of violations of Section 12, 14, 18 and 19 of the Act. The Authority on the other hand is established under Section 20 of the Act and derives its powers from Section 31. The functions of the Authority are contained in Section 34 which provides inter alias the functions of registering and regulating Real Estate Projects and Real Estate agents under the Act.
33. The learned Senior Counsel for Petitioners has thus, submitted that even assuming that the project is one which needs to be registered, the issue of registration would frst require determination by the Authority before the Adjudicating Offcer could take cognizance of the same. He has submitted that bifurcation between the scope of powers of the Authority and Adjudicating Offcer has also been acknowledged by this Court in Lavasa Corporation Ltd. Vs. Jitendra Jagdish Tulsiani & Ors.9.
34. The learned Senior Counsel has submitted that the Adjudicating Offcer had failed to appreciate that the Second Complaint was barred by the principles of res judicata. He has submitted that the Complainants had already fled the 9 (2018) 5 AIR Bom R 553; Paras 76-79 23/99 WPST-1118-21.doc First Complaint before the Authority inter alia seeking compensation from the Petitioners on account of alleged delay in handing over the fat along with directions against the Petitioners to register the project. This was dismissed by the Authority vide its order dated 18th December 2017 on the count that since part occupancy certifcate had already been received for that part of the building in which the fat is located, there was no question of registering the same. The order had been consistent with the fndings rendered by the Full Bench of MahaRERA in the case of Mr. Prasad Patkar (supra). The Authority's order dated 18th December 2017 had attained fnality, 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 fled 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 certifcate 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 24/99 WPST-1118-21.doc project.
35. The learned Senior Counsel has submitted that the Respondents have incorrectly sought to fle 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 Estate Regulatory Authority & Ors.10. This Court in that matter was concerned with a project which required to be registered and had not been registered. It is in no way relevant to the present case where the phase of the project does not require registration in the frst place. He has submitted that in view of the principles of res judicata as enshrined in Section 11 of the CPC read with Explanation VIII thereof, the Adjudicating Offcer could not have entertained the Second Complaint in the frst place and therefore, ought to have dismissed it at the very threshold itself. He has placed reliance 10 Writ Petition (L) No. 908 of 2018 25/99 WPST-1118-21.doc on the decision of the Supreme Court in the case of Sulochana Amma Vs. Narayanan Nair11. He has submitted that even in respect of this Court's judgment dated 16th October 2018 whereby Writ Petition (L) No. 2639 of 2018 is disposed of without directing the Petitioners to register the project, the principle of res judicata would very much apply. In this context, he has placed reliance on the decision of the Supreme Court in Virudhunagar Steel Rolling Mills Ltd. Vs. Government of Madras12, which has categorically held that the principle of res judicata would also be applicable in cases where inter alia Writ Petitions have been disposed of with a speaking order. He has submitted that this Petition fled under Article 226 of the Constitution of India is maintainable as it raises issues with regard to error of jurisdiction exercised by the Adjudicating Offcer in entertaining the Second Complaint in stark derogation to orders passed by the Authority on the same issue. He has relied upon the decisions of the Supreme Court in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & Ors.13, Kamal K. Singh Vs. Union of India 14 in this context. 11 (1994) 2 SCC 14 para 5-7 12 AIR 1968 SC 1196 13 (1998) 8 SCC 1 14 2019 SCC Online Bom 5609 26/99 WPST-1118-21.doc Accordingly, the present Petition be allowed and the impugned order be quashed and setting aside.
36. Mr. Mayur Khandeparkar, the learned Counsel appearing on behalf of Respondent Nos. 2 and 3 /Respondents / Complainants has submitted that the present Petition is not maintainable as it impugns the order dated 31st December 2020 passed by the Adjudicating Offcer of MahaRERA. The aspect in relation to jurisdiction having been raised and decided by the Adjudicating Offcer. 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 Offcer) before the Appellate Tribunal and the Chairman of such Tribunal shall have been a Judge of this High Court. Thus, there is an alternate effcacious remedy under Section 44 of the RERA and hence, the Writ Petition deserves to be dismissed in 27/99 WPST-1118-21.doc 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 Limited15.
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 order dated 18th December 2017 only on the issue of maintainability. There was no fnding rendered on the merits of the dispute between the Petitioners and Respondents nor there was any adjudication or determination of the rights of either party in the said order. He has submitted that in the Haresh Asher case (supra), the learned Member and Adjudicating Offcer vide order dated 12th September 2018 and the Appellate Tribunal by its order dated 25th October 2018 inter alia held that the Petitioners are required to register the project under the Act and upheld the order passed by the 15 2020 SCC OnLine SC 440 28/99 WPST-1118-21.doc Adjudicating Offcer holding that MahaRERA has jurisdiction over the said project. He has submitted that the Petitioners had fled a Second Appeal being Second Appeal No. 708 of 2018 before this Court challenging the order dated 25th October 2018 passed by the Maharashtra Real Estate Appellate Tribunal which was subsequently withdrawn upon payment of costs Rs. 2,00,000/-. Hence, the order dated 25th October 2018 of the Appellate Authority has attained fnality in the context of registration of the project and the Petitioners are bound to comply with the said order and register the project under the Act. He has submitted that as there is a subsequent declaration of law in respect of registration of the project, there cannot be estoppel or res judicata in regard to such declaration of law. He has placed reliance Mathura Prasad Bajoo Jaiswal & Ors. Vs. Dossibai N. B. Jeejeebhoy16 and Isabella Johnson (Smt.) Vs. M.A. Susai (Dead) By LRs.17. He has submitted in view of the order dated 25th October 2018 having attained fnality, the order of the Full Bench dated 17th November 2017 is impliedly overruled and the Petitioners are bound to register the project under the Act and complaints against the project are held to be 16 1970(1) SCC 613 17 (1991)1 SCC 494 29/99 WPST-1118-21.doc maintainable.
38. The learned Counsel for Respondents / Complainants has then referred to the relevant provisions of the Act, in particular, Section 3 of the Act read with the defnition of completion certifcate in Section 2(q) of the Act. He has submitted that from reading of frst proviso to Sub-Section 1 of Section 3, it is clear that this provision only applies to applications to be made for registration and this 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 certifcate 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 certifcate obtained after commencement of the Act which exempts registration is ex- facie contrary to the plain language of the provisions. 30/99
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39. The learned Counsel for Respondents / Complainants has submitted that occupancy certifcate is defned in Section 2(zf) of the Act, whereas completion certifcate is defned in Section 2(q) of the Act. He has submitted that from the reading of these defnitions, "part occupancy certifcate" is not analogues to "completion certifcate". 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 defnitions of Real Estate Project in Section 2(zn), the development works in Section 2(t), and internal development in Sub-Section 2(zb), common area in Section 2(n). He has submitted that the Petitioner has only secured a part occupancy certifcate (for 40 foors) on 8th June 2017 much after the date of commencement of the Act (1st May 2017). It is to be submitted that it is only at this stage of grant of full occupancy certifcate that the Planning Authority grants permission in context of completion of the entire development work. He has submitted that Rule 4 of the Registration Rules applies only to ongoing Real Estate Project in which "all 31/99 WPST-1118-21.doc buildings as per sanction plan have not received occupation certifcate or completion certifcate". In the present case, the expression "all buildings" would not include a part of a building as the legislative intent is clear by use of the expression "all buildings". In such a situation, the promoter of an ongoing project has an option to register each of such buildings as a phase. However, such registration of a building or buildings in a project will have to necessarily be of the entire building and not any part thereof. This fact is clarifed by Explanation (i) of Regulation 4.
40. The learned Counsel for Respondents / Complainants has submitted that the mandate under the frst proviso of sub Section (1) of Section (3) would be that if a project does not possess "a completion certifcate" as on date of "commencement of the act" then such project is required to be registered under the provisions of the Act. He has submitted that on the date of commencement of the Act i.e. on 1 st May, 2017, the Petitioners did not have an Occupation Certifcate or Completion Certifcate. This is a position even as of today and hence the project which is an "ongoing project" is required to be 32/99 WPST-1118-21.doc registered. He has further submitted that although the scheme of the act permits the registration of Real Estate Projects in phases, with respect to the ongoing projects such phase can be only the entire building and cannot be a part thereof.
41. The learned Counsel for Respondents / Complainants has submitted that Rule 3 of the Registration Rules covers "new projects", whereas Rule 4 of the Registration Rules covers "on going projects". In the explanation 'I' to Rule 4 for the purpose of ongoing projects the phases of the project has been defned as the expression "phase of the project"
means the building or buildings in a project of which the occupancy or completion certifcate 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 defned number of foors 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 33/99 WPST-1118-21.doc prescribed for compliance. He has submitted that the mere obtaining of a part occupancy certifcate in respect of an ongoing project is of no consequence and relevance to the obligation for registration of the project. A part occupancy certifcate cannot be equated to a completion certifcate. He has submitted that in any event the part occupancy Certifcate dated 8th June 2017 issued in the present case is a conditional Certifcate which itself shows that the work in respect of the portion of the building to which it relates is incomplete. Clause 6 of the part occupancy Certifcate requires the applicant to complete unfnished internal work before applying for grant of Full Occupancy Certifcate of the building or before handing over of physical possession of the premises for habitation whichever is earlier. He has submitted that in contrast a completion certifcate would mean certifcation that the Real Estate Project has been developed according to the sanction plans, lay out plans and specifcations as approved by the Competent Authority which includes completion of common areas, external development work or internal development work. Thus the obligation in case of an ongoing project is to register the entire project in view of the provisions contained in Rule 4 of the Registration Rules. It is in this context that the 34/99 WPST-1118-21.doc Appellate Tribunal had held that ongoing projects requires registration under the Act vide the order dated 25 th October, 2018 passed in the Haresh Asher case (Supra). The same having attained fnality.
42. The learned Counsel for Respondents / Complainants has submitted that Form 'A' relied upon by the learned Senior Counsel for the Petitioners is not applicable having regard to Rule 3 (4) of the Registration Rules as the web form is provided. He has submitted that although the circular No.18 of the 2018 dated 17th July, 2018 required two stage process as stipulated in part A and part B thereof, after the judgment of this Court in the case of Mohd. Zain Khan (Supra) a circular No.23 of 2018 was issued where under a composite complaint was provided in relation to handling of non registered projects. He has submitted that the learned Senior Counsel for the Petitioners has incorrectly relied upon Sections 4(2) (l) (c) and 5(c) of the Act to contend that no completion date can be specifed for a part of the building which has received part occupancy certifcate. He submits that this contention overlooks the date of completion which would be of 35/99 WPST-1118-21.doc the entire building which is required to be specifed as the entire building is required to be registered. In the present case, the Petitioners were under an obligation to register the entire building having 43 foors and not only 3 foors.
43. Learned Counsel for Respondents / Complainants has alternatively 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 fle a complaint. There is no provision barring fling of any complaint in case of non registered Real Estate Project. It provides that "a person aggrieved" may fle 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 36/99 WPST-1118-21.doc 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 Offcer is not in any manner circumcised or barred as a consequence of non registration of a Real Estate Project. He has placed reliance upon the decision of this Court in Neelkamal (Supra) and has drawn reference to paragraph 132 thereof. He has submitted that it is held in that decision, that the provisions of the Act are retroactive. He has further referred to the proviso to sub section (1) of Section 71, which provides for the transfer of pending matters which fall under the ambit of Sections 12, 14, 18 and 19 fled before the consumer forum to the adjudicating offcer. He has submitted that the fling of a complaint and adjudication thereof are not interlinked with registration of a project. He has submitted that merely because construction is completed before the expiry of a period of three months will not exclude the project from registration. He has referred to the 37/99 WPST-1118-21.doc decision of this Court in WP No.2255 of 2017, which was decided along with case of Neelkamal (Supra) and this argument was rejected. He has submitted that there cannot be different adjudicating bodies or grievances in respect of the same complaint. He has further relied upon paragraphs 89, 90, 124, 125 and 255 of the Neelkamal (Supra) as well as the paragraph 29 of the Lavasa (Supra) in this context.
44. The learned Counsel for Respondents / Complainants has further submitted that the Adjudicating Offcer has jurisdiction to entertain the complaints in the present case. He has drawn reference to the defnition of Authority in Section 2 (i) of the Act as established under Section 20 (1) of the Act. The term "Adjudicating Offcer" is defned under Section 2 (a) which means an offcer is appointed under Section 71(1) of the Act. He has submitted that the authority consist of Chairperson or two whole time members whose qualifcations are set out in Section 22 of the Act. The Chairperson under Section 25 of the Act has administrative powers. Under Section 29 of the Act, the meetings of the Authority are provided for. He has submitted that from the 38/99 WPST-1118-21.doc scheme of the Act, it is clear that the RERA Authority has two folds functions, one on the Administrative side and other on the judicial / adjudicatory side. He has submitted that the functions of the authority under 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 Offcer 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 offcer. He has thus submitted that there is a clear bifurcation of powers between the Authority and Adjudicating Offcer.
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. 18 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 18 (2019) 8 SCC 416.
39/99
WPST-1118-21.doc clearly held that compliance under Section 12, 14, 18 and 19 is to be dealt with by an Adjudicating Offcer who should have held offce 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 the Adjudicating Offcer that must determine that the complainant has established default on the part of Respondents as observed in paragraph 23 of the said decision. He has submitted that the bifurcation between the Authority and Adjudicating Offcer is clearly contemplated by Rules 6 and 7 of the Maharashtra Real Estate (Regulation and Development) (Recovery of Interest, Penalty, Compensation, Fine Payable, Forms of Complaints and Appeal Etc.) Rules 2017 by which separate complaint forms are prescribed.
46. The learned Counsel for Respondents / Complainants has accordingly submitted that there is no infrmity in the impugned order and the impugned order ought not to be interfered with by this Court exercising writ jurisdiction.
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47. We have considered the rival submissions. A preliminary issue on the maintainability of this Petition has been raised by the learned Counsel for the Respondents / Complainants. We have noticed that this Petition has raised a fundamental challenge to the exercise of jurisdiction by the Adjudicating Offcer and two main issues arise which are as under:-
(a) whether the Adjudicating Offcer had no jurisdiction to entertain the complaint as the subject project did not require registration in terms of Section (3) of the Act?
(b) whether it was not within the powers of the Adjudicating Offcer to pass orders and / or directions pertaining to aspects of registration in terms of Section 3 read with Section 31 of the Act and whether it was solely within the Authority's sphere of powers to pass the necessary orders and / or directions regarding the registration of the project in terms of Section 3 read with Section 31 of the Act?
48. In view of these two main issues which are 41/99 WPST-1118-21.doc required to be decided by this Court in writ jurisdiction, we are of the view that the present writ petition is maintainable. It has been observed in the decision of the Supreme Court in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & Ors19 at Paragraph 14, 15 and 20 as under:-
"14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power 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 effcacious 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 fled 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 feld. 19 (1998) 8 SCC 1 42/99 WPST-1118-21.doc
20. Much water has since fown under the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the feld with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is fled is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation."
49. Thus it has been expressly held in the said decision that where the order or proceeding are wholly without jurisdiction, Writ Petition is maintainable inspite of an alternate statutory remedy. This particularly where the writ is fled showing that the authority had no jurisdiction or had purported to usurp jurisdiction without any legal foundation.
50. In the decision of Division Bench of this Court in Kamal K. Singh Vs Union of India 20, paragraph 38 reads thus:-
"38. Mr. Kadam's arguments overlook the fact that if these principles summarized above are attracted, the writ cannot be refused. The writ cannot be refused only because the party resisting the writ petition urges that there are alternate and equally effcacious remedies available to the petitioner approaching this Court seeking a writ of certiorari to challenge the 20 2019 SCC Online Bom 5609.43/99
WPST-1118-21.doc adverse order. As has been succinctly clarifed by the Hon'ble Supreme Court that this writ of certiorari goes to a Court. It may be issued at the request of parties, but it is not a writ which can be claimed by the parties. It is a writ which is directed or addressed to the Court and the High Court can always issue it once it is satisfed that the orders impugned before it and challenged on the ground mentioned above occasion a failure of justice. Thus, if the orders of the Court or tribunal subordinate to this Court result or occasion a failure of justice, then, this writ of certiorari can always be issued. There is no question of then refusing it merely because the opponent or opposite party says that the person or the party invoking this writ has an alternate and equally effcacious remedy. That means everything that the Court or the tribunal has done can either be condoned or overlooked by us and 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 proceedings and the records. If that is totally lost, the, the High Court should not be a mute spectator. It must step in.44/99
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51. It is thus been held in Kamal K Singh (Supra) that if the order of the Tribunal subordinate to this Court results or occasions a failure of justice, then the writ of certiorari can always be issued. The Court will not refuse it merely because the opponent or opposite party says that the person or the party invoking this writ has an alternate and equally effcacious remedy.
52. Considering these decisions as well as the issues that arise in this Petition, particularly where it has been alleged that the Adjudicating Authority has wrongly and prematurely exercised its jurisdiction, which exercise of jurisdiction is in derogation to orders passed by the Authority on this issue, we are of the view that there is no substance in the challenge to the maintainability of this Petition and in fact this Petition is very much maintainable.
53. In order to appreciate the interpretation of the various provisions of the Act as well the relevant Registration Rules, for determining whether a project which has been issued part occupancy certifcate before the statutory 45/99 WPST-1118-21.doc period of registration of three months commencing from 1st May, 2017 comes to an end, would not be required to be registered under the Act and Registration Rules therein, Sections 2(j), 2(q), 2(zj), 2(zn), 3, 4 and 5, Sections 12, 14, 18, 19, 31, 34, 59 and 71 of the Act and Rule 2(p) read with Rule 4 of the Registration Rules are relevant. They read as under:-
"Section 2(j) defnes "building'" 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 purposes;
Section 2(q) defnes "completion certifcate" means the completion certifcate, or such other certifcate, by whatever name called, issued by the competent authority certifying that the real estate project has been development according to the sanctioned plan, layout plan and specifcations, as approved by the competent authority under the local laws;
Section 2(zj) defnes "project" means the Real Estate Project as defned in clause (zn);
Section 2(zn) defnes "real estate project" means the development of a 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 46/99 WPST-1118-21.doc 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 certifcate 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 may, by order, direct the promoter of such project to register with the Authority, and the provisions of this Act or the rules and regulations made thereunder, shall apply to such projects from that stage of registration.
(2) Notwithstanding anything contained in sub-
section (1), no registration of the real estate project shall be required--
(a) where the area of land proposed to be developed does not exceed fve hundred square meters or the number of apartments proposed to be developed does not exceed eight inclusive of all phases:
Provided that, if the appropriate Government considers it necessary, it may, reduce the threshold below fve hundred square meters or eight apartments, as the case may be, inclusive of all phases, for exemption from registration under this 47/99 WPST-1118-21.doc Act;
(b) where the promoter has received completion certifcate for a real estate project prior to commencement of this Act;
(c) for the purpose of renovation or repair or re-
development which does not involve marketing, advertising selling or new allotment of any apartment, plot or building, as the case may be, under the real estate project.
Explanation.--For the purpose of this section, where the real estate project is to be developed in phases, every such phase shall be considered a stand alone real estate project, and the promoter shall obtain registration under this Act for each phase separately.
Section 4 : Application for registration of real estate project.- (1) Every promoter shall make an application to the Authority for registration of the real estate project in such form, manner, within such time and accompanied by such fee as may be [prescribed].
(2) The promoter shall enclose the following documents along with the application referred to in sub-section (1), namely:--
(a) a brief details of his enterprise including its name, registered address, type of enterprise (proprietorship, societies, partnership, companies, competent authority), and the particulars of registration, and the names and photographs of the promoter;
(b) a brief detail of the projects launched by him, in the past fve 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 certifcate from the competent 48/99 WPST-1118-21.doc 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 certifcate from the competent authority for each of such phases;
(d) the sanctioned plan, layout plan and specifcations 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 fre fghting 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 the carpet area of apartments for sale in the project along with the area of the exclusive balcony or verandah areas and the exclusive open terrace areas appurtenant with the apartment, if any;
(i) the number and area of garage for sale in the project;
(j) the names and addresses of his real estate agents, if any, for the proposed project;
(k) the names and addresses of the contractors, architect, structural engineer, if any and other persons concerned with the development of the proposed project;
(l) a declaration, supported by an affdavit, which shall be signed by the promoter or any person authorised by the promoter, stating:--49/99
WPST-1118-21.doc (A) that he has a legal title to the land on which the development is proposed along with legally valid documents with authentication of such title, if such land is owned by another person;
(B) that the land is free from all encumbrances, or as the case may be details of the encumbrances on such land including any rights, title, interest or name of any party in or over such land along with details;
(C) the time period within which he undertakes to complete the project or phase thereof, as the case may be;
(D) that seventy per cent. of the amounts realised for the real estate project from the allottees, from time to time, shall be deposited in a separate account to be maintained in a scheduled bank to cover the cost of construction and the land cost and shall be used only for that purpose:
Provided that the promoter shall withdraw the amounts from the separate account, to cover the cost of the project, in proportion to the percentage of completion of the project:
Provided further that the amounts from the separate account shall be withdrawn by the promoter after it is certifed by an engineer, an architect and a chartered accountant in practice that the withdrawal is in proportion to the percentage of completion of the project: Provided also that the promoter shall get his accounts audited within six months after the end of every fnancial year by a chartered accountant in practice, and shall produce a statement of accounts duly certifed and signed by such chartered accountant and it shall be verifed 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 50/99 WPST-1118-21.doc 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 fll therein the details of the proposed project; or
(b) reject the application for reasons to be recorded in writing, if such application does not conform to the provisions of this Act or the rules or regulations made thereunder:
Provided that no application shall be rejected unless the applicant has been given an opportunity of being heard in the matter.
(2) If the Authority fails to grant the registration or reject the application, as the case may be, as provided under sub-section (1), the project shall be deemed to have been registered, and the Authority shall within a period of seven days of the expiry of the said period of thirty days specifed under sub-
section (1), provide a registration number and a Login Id and password to the promoter for 51/99 WPST-1118-21.doc accessing the website of the Authority and to create his web page and to fll therein the details of the proposed project.
(3) The registration granted under this section shall be valid for a period declared by the promoter under sub-clause (C) of clause (l) of sub-section (2) of section 4 for completion of the project or phase thereof, as the case may be.
Section 12. Obligations of promoter regarding veracity of the advertisement or prospectus:-
Where any person makes an advance or a deposit on the basis of the information contained in the notice advertisement or prospectus, or on the basis of any model apartment, plot or building, as the case may be, and sustains any loss or damage by reason or any incorrect, false statement included therein, he shall be compensated by the promoter in the manner as provided under this Act. Provided that if the person affected by such incorrect, false statement contained in the notice, advertisement or prospectus, or the model apartment, plot or building as the case may be, intends to withdraw from the proposed 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 specifcations by the promoter (1) The proposed project shall be developed and completed by the promoter in accordance with the sanctioned plans, layout plans and specifcations as approved by the competent authorities.
(2) Notwithstanding anything contained in any law, contract or agreement, after the sanctioned plans, layout plans and specifcations and the nature of 52/99 WPST-1118-21.doc the fxtures, fttings, 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 specifcations and the nature of fxtures, fttings 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 verifed 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 height, or the removal of part of a building or any change to the structure, such as the construction or removal or cutting into of any wall or a part of a wall, partition, column, beam, joist, foor including a mezzanine foor or other support, or a change to the fxtures or equipment, etc.
(ii) any other alterations or additions in the sanctioned plans, layout plans and specifcations of the buildings or the common areas within the project without the previous written consent of atleast two-thirds of the allottees, other than the promoter, who have agreed to take apartments in such building.
Explanation.- For the purpose of this clause, the allottees, irrespective of the number of apartments or plots, as the case may be, booked by him or booked in the name of his family, or in the case of 53/99 WPST-1118-21.doc other persons such as companies or frms or any association of individuals, etc., by whatever name called, booked in its name or booked in the name of its associated entities or related enterprises, shall be considered as one allottee only.
(3) In case any structural defect or any other defect in workmanship, quality or provision of services or any other obligations of the promoter as per the agreement for sale relating to such development is brought to the notice of the promoter within a period of fve years by the allottee from the date of handing over possession, it shall be the duty of the promoter to rectify such defects without further charge, within thirty days, and in the event of promoter's failure to rectify such defects within such time, the aggrieved allottees shall be entitled to receive appropriate compensation in the manner as provided under this Act.
Section 18 : Return of amount and compensation; (1) If the 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 specifed 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 54/99 WPST-1118-21.doc 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 information relating to sanctioned plans, layout plans along with the specifcations, approved by the competent authority and such other information as provided in this Act or the rules and regulations made thereunder or the agreement for sale signed with the promoters.
(2) The allottee shall be entitled to know stage-wise time schedule of completion of the project, including the provisions for water, sanitation, electricity and other amenities and services as agreed to between the promoter and the allottee in accordance with the terms and conditions of the agreement for sale. (3) The allottee shall be entitled to claim the possession of apartment, plot or building, as the case may be, and the association of allottees shall be entitled to claim the possession of the common areas, as per the declaration given by the promoter under sub-clause (C) of clause (I) of sub-section (2) 55/99 WPST-1118-21.doc of section 4.
(4) The allottee shall be entitled to claim the refund of amount paid along with interest at such rate as may be prescribed and compensation in the manner as provided under this Act, from the promoter, if the promoter fails to comply or is unable to give possession of the apartment, plot or building, as the case may be, in accordance with the terms of agreement for sale or due to discontinuance of his business as a developer on account of suspension or revocation of his registration under the provisions of this Act or the rules or regulations made thereunder.
(5) The allottee shall be entitled to have the necessary documents and plans, including that of common areas, after handing over the physical possession of the apartment or plot or building as the case may be, by the 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 specifed 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 56/99 WPST-1118-21.doc 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 certifcate 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 offcer.
(1) Any aggrieved person may fle a complaint with the Authority or the adjudicating offcer, 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 real estate agent, as the case may be.
Explanation.-- For the purpose of this sub-section "person" shall include the association of allottees or any voluntary consumer association registered under any law for the time being in force.
(2) The form, manner and fees for fling complaint under sub-section (1) shall be such as may be specifed by regulations.] Section 34 : Functions of Authority The functions of the Authority shall include--
(a) to register and regulate real estate projects and real estate agents registered under this Act;
(b) to publish and maintain a website of records, for public viewing, of all real estate projects for which registration has been given, with such details as 57/99 WPST-1118-21.doc may be prescribed, including information provided in the application for which registration has been granted;
(c) to maintain a database, on its website, for public viewing, and enter the names and photographs of promoters as defaulters including the project details, registration for which has been revoked or have been penalised under this Act, with reasons therefor, for access to the general public;
(d) to maintain a database, on its website, for public viewing, and enter the names and photographs of real estate agents who have applied and registered under this Act, with such details as may be prescribed, Including those whose registration has been rejected or revoked;
(e) to fx through regulations for each areas under
its jurisdiction the standard fees to be levied on the allottees or the promoter or the real 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 58/99 WPST-1118-21.doc 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 fne 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 offcer as deemed necessary, who is or has been a District Judge to be an adjudicating offcer 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 this Act, he may, with the permission of such Forum or Commission, as the case may be, withdraw the complaint pending before it and fle an application before the adjudicating offcer under this Act.
(2) The application for adjudging compensation under sub-section (1), shall be dealt with by the adjudicating offcer as expeditiously as possible and dispose of the same within a period of sixty days from the date of receipt of the application:
Provided that where any such application could not be disposed of within the said period of sixty days, the adjudicating offcer shall record his reasons in writing for not disposing of the application within that period.59/99
WPST-1118-21.doc (3) While holding an inquiry the adjudicating offcer shall have power to summon and enforce the attendance of any person acquainted with the facts and circumstances of the case to give evidence or to produce any document which in the opinion of the adjudicating offcer, may be useful for or relevant to the subject matter of the inquiry and if, on such inquiry, he is satisfed that the person has failed to comply with the provisions of any of the sections specifed in sub-section (1), he may direct to pay such compensation or interest, as the case any be, as he thinks ft in accordance with the provisions of any of those sections.
Relevant Registration Rules :
Rule 2 (p) :-
"Phase of a Real Estate Project" may consist of a building or a wing of the building in case of building with multiple wings or defned number of foors 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 certifcate or completion certifcate, 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 certifcate has not been received;
(II) the term "completion certifcate" shall mean such building permission or certifcate, by whatever name called, which is issued by the competent 60/99 WPST-1118-21.doc 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 on- going 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 certifcate from the practicing project Architect certifying the percentage of completion of construction work of each of the building/wing of the project, a certifcate from the Engineer for the estimated balance cost to complete the construction work of each of the building/wing of the project, and a certifcate from a practicing Chartered Accountant, for the estimated balance cost to compete the project. The promoter shall submit a certifcate from a practicing Chartered Accountant, certifying the balance amount of receivables from the apartments/fats/premises sold or allotted and in respect of which agreement have been executed and estimated amount of receivables in respect of unsold apartments/fats/premises calculated at the prevailing ASR rate on the date of certifcate. (3) (a) The Promoter shall disclose the number of the apartments sold or allotted to the allottees and further disclose the size of the apartment based on carpet area even if such apartments are sold earlier 61/99 WPST-1118-21.doc on any other basis, such as super area, su0per built- up area etc.
(b) In case of plotted development, the promoter shall disclose the are of the plots sold to the allottees including extent of share of common areas and amenities etc. (4) The Promoter shall construct and develop real estate project in accordance with the sanctioned plan, and layout plans and specifcations as approved by the Competent Authorities:
Provided that, the promoter developing a real estate project will be entitled 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 notifcation 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/specifcations as disclosed in agreement executed with the allottee prior to registration or for any alterations or additions or modifcations in the sanctioned plans, layout plans and specifcations 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.62/99
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54. It would appear from the defnition 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 defnition 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 defnes phase of a Real Estate Project, that a phase would also consist of defned number of foors in a multi storied building or wing. These defnitions assumes importance in the interpretation of Section 3 of the Act. From the opening of Section (3) (1), the disability resulting from a failure to register has been provided and which is that a promoter shall not advertise, market, book, sell or offer for sell any building or apartment or any part of it in any Real Estate Project without registering the Real Estate Project with the authority. Thereafter in the frst proviso in Section 3 (i) it is stated that the projects which are ongoing on the date of commencement of the Act, and for which the completion certifcate has not be issued, the promoter shall make an 63/99 WPST-1118-21.doc application to the Authority for registration of the project within a period of three months from the date of commencement of the Act. Thus, there is a window created of three months from the date of commencement of the Act. (read as three months from the date of commencement of Section 3 as per Rule 4 (1) of the Registration Rules). Under Section 3(2) there is a non-obstantive clause which provides circumstances where no registration of a Real Estate Project shall be required. Section 3(2) (b) indicates one such circumstance, that is where the project has received completion certifcate for a Real Estate Project prior to the commencement of the Act. The Explanation in Section 3 is relevant and which says that for the purpose of this Section, where the Real Estate Project is to be developed in phases, every such phase shall be considered as a stand alone 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 Affdavit 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 64/99 WPST-1118-21.doc 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 frst 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) (b) would apply only to completed projects that have received the completion certifcate 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 certifcate before commencement of the Act'. The Real Estate Project or part of it which receives a part occupancy certifcate during the three 65/99 WPST-1118-21.doc 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 certifcate issued in the present case did not denote completion of that phase of the project and was only a conditional part occupancy certifcate. We accept the submission of the learned Senior Counsel for the Petitioners that the scope of the proviso to Section 3 (1) and Section 3 (2) (b) can never be the same or overlapping and that would amount to or attributing surplusage to legislature which could never have been the intention.
56. Under Rule 4 (1), the promoter of the ongoing Real Estate Project, where all building as per sanction plan have not received occupancy certifcate or completion certifcate, as the case may be, prior to the commencement of the Act as provided by sub-Section 2 (b) of Section 3 is required to submit an application for registration for each such phase of the project within a period of three months from the date of commencement certifcate of Section 3. Thus, the words 'each such phase of the project' would include a building or part 66/99 WPST-1118-21.doc thereof i.e. number of foors in a multi-storey building / wing. This cannot be given a restricted meaning as 'entire building' as sought to be contended by the learned Counsel for the Respondents / Complainants.
57. The learned Counsel for the Respondents / Complainants appears to have placed reliance on the Explanation to Rule 4 (1) of the Registration Rules in support of its interpretation of Rule 4 (1) of the Registration Rules. According to the learned Counsel for the Respondents / Complainants, the Explanation to Rule 4 (1) makes it clear that for ongoing projects 'the entire building' would require registration and not part of the building. However, this interpretation would be contrary to the plain language of Rule 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 certifcate has not been received. It is clear from the defnition 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, 67/99 WPST-1118-21.doc 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 defnition 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 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 68/99 WPST-1118-21.doc 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 certifcate as defned 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 specifc query has been put viz. "if occupancy certifcate / building completion certifcate is issued in May / June / July does the project has to be registered?" Has been answered to the affrmative by stating that "ongoing projects have time till 30th July to register. If before doing registration, the project has got an occupancy certifcate / building completion certifcate, the project has been completed as per Section 5 (3) of the Act. Hence, it does not require registration." It would thus be apparent from the Authority 69/99 WPST-1118-21.doc under the Act that registration will not be required if the part occupancy certifcate has been validly issued under the MR & TP Act / DC Regulations, 1991 in respect of that part or phase before 31st July 2017.
61. This Court in Neelkamal (Supra) has in paragraphs 89 and 90 with respect to the analysis of the Act has held as under:-
"89. On behalf of the petitioners it was submitted that registration of ongoing project under RERA would be contrary to the contractual rights os- wp-2737-17 & ors-RERA-JT.doc established between the promoter and allottee under the agreement for sale executed prior to registration under RERA. In that sense, the provisions have retrospective or retroactive application. After assessing, we fnd that the projects already completed are not in any way affected and, therefore, no vested or accrued rights are getting affected by RERA. The RERA will apply after 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 certifcate 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 fnd that frst proviso to Section 3(1) is violative of Article 14 or Article 19(1)(g) of the 70/99 WPST-1118-21.doc 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 certifcates were not obtained, were not to be covered under RERA, then there was likelihood of classifcations 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 foor of the Parliament, it was thought ft 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 fnancial 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 the course of hearing, it was brought to notice that in the State of Maharashtra a law i.e. MOFA on the subject has been in operation. But MOFA provisions are not akin to regulatory provisions of RERA.
90. The important provisions like Sections 3 to 19, 40, 59 to 70 and 79 to 80 were notifed for operation 71/99 WPST-1118-21.doc from 1/5/2017. RERA law was enacted in the year 2016. The Central Government did not make any haste to implement these provisions at one and the same time, but the provisions were made applicable thoughtfully and phase-wise. Considering the scheme of RERA, object and purpose for which it is enacted in the larger public interest, we do not fnd that challenge on the ground that it violates rights of the petitioners under Articles 14 and 19(1)(g) stand to reason. Merely because sale and purchase agreement was entered into by the promoter prior to coming into force of RERA does not make the application of enactment retrospective in nature. The RERA was passed because it was felt that several promoters had defaulted and such defaults had taken place prior to coming into force of RERA. In the affdavit-in- reply, the UOI had stated that in the State of Maharashtra 12608 ongoing projects have been registered, while 806 new projects have been registered. This fgure itself would justify the registration of ongoing projects for regulating the development work 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 72/99 WPST-1118-21.doc been completed and received the occupancy certifcate / part occupancy certifcate 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 foor has been completed and received part occupancy certifcate 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 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 73/99 WPST-1118-21.doc 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 certifcate having been received.
64. We have considered these circulars and we fnd 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 certifcate/part occupancy certifcate. Circulars such as there would throw light on the interpretation of the provisions of the Act. This has been held by the Supreme Court in Desh Bandu (supra), K.P. Varghese (Supra) and S.B. Bhattacharjee (Supra), which have been relied upon by the learned Senior Counsel for the Petitioner.
65. We fnd that the Adjudicating Authority in the impugned order has placed reliance upon the decision of the Appellate Authority in Haresh Asher (Supra). From a reading of the decision of the Appellate Authority, it is clear that Appellate Authority has based its decision on the decision of 74/99 WPST-1118-21.doc this Court in Mohd Zain Khan (Supra). This is apparent from paragraph 3 of the decision of the Appellate Authority dated 25th October, 2018 which reads thus:-
"3. The Ld. Adjudicating Offcer has referred to the order in the matter of Prasad Patkar Vs. M/s. Runwal Project Pvt. Ltd. wherein on 17th November, 2017 the full bench of MahaRERA indicated that MahaRERA gets jurisdiction to entertain only those complaints which relate to a registered project. However, in the judgment of Mohammed Zain Khan V/s. Maharashtra Real Estate Regulatory Authority in WP (L.) No. 908 of 2018 a statement by MahaRERA was made that MahaRERA shall take cognizance of complaints in respect of unregistered projects also."
66. The Appellate Authority had ignored the fndings of the Full Bench as well as of the Authority in the Respondents/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 certifcate and was not registered under the Act, MahaRERA did not have jurisdiction to entertain the complaint and hence the complaint was not maintainable. In 75/99 WPST-1118-21.doc 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 foor of B-Wing of Building known as the Lodha Diaro tower for which the part occupancy certifcate 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 occupancy certifcate 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 certifcate / part occupancy certifcate 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 certifcate for ground plus 40 upper foors 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."76/99
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67. Thus, the Authority held that since the Complainants had booked a fat bearing No.2503 on the 25th foor of B Wing of the building Lodha Dioro for which part occupancy certifcate had already been issued by the competent authority on 8th June, 2017, there was no need to have that phase of the project registered with MahaRERA. Hence, the Authority had no jurisdiction to entertain the complaint against the Petitioners. We fnd that the Appellate Authority in Haresh Asher (Supra) has not considered the decisions of the Full Bench and of the Authority in the Respondents/Complainants own case although referring to these decisions and based its decision only on the decision of this Court in Mohd Zain Khan (Supra). This Court in the said decision had observed that the online software system is not equipped to entertain the complaints in respect of projects which were not registered under the RERA Act. It is held that the complaint tendered online by the Petitioner therein and other similarly situated complainants, in respect of unregistered projects would be entertained and the same would be dealt in accordance with the procedure i.e. being adopted by MahaRERA in respect of disposal of complaints in relation to registered projects. This was in the context of cases where the 77/99 WPST-1118-21.doc projects in question required to be registered but had not been registered. This has no relevance to the fact of the present case which pertain to a project that does not require registration in the frst 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 Offcer 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 resjudicata.
69. It is to be noted that subsequent to the maintainability of the First Complaint having been decided 78/99 WPST-1118-21.doc 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 Respondents / complainants were also of the understanding that given the issuance of the part occupancy certifcate 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 40th foors of Wings 3-6 with the Authority established under the Real Estate 79/99 WPST-1118-21.doc Regulation and Development Act, 2016 once the said part OC is revoked / quashed or even otherwise;
(d) Direct Respondent No.5 to provide the Petitioners with alternate accommodation till the demolition of the upper foors is complete;
(e) Pending the hearing and fnal disposal, the Respondent No.5 to be restrained from carrying out further illegal demolition to the upper foors of the said buildings in the absence of the requisite permissions in accordance with applicable law;
(f) Pending the hearing and fnal disposal of the present Petition, Respondent No.5 be restrained by an order and injunction of this Hon'ble Court from giving possession to the other fat owners who have not been given possession till date;
(g) Pending the hearing and fnal disposal of the present petition. Respondent No.5 be restrained by an order and injunction of this Hon'ble Court from selling any unsold fats in Wing 3, 4, 5 and 6;
(h) Ad-interim and interim reliefs in terms of prayer clause (d) to (g);
(i) The cost of the present Petition be provided to the Petitioners;
(j) Such other and further reliefs be granted as this Hon'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 Certifcate dated 8 June 2017 ("Part OC") with respect to Wings 80/99 WPST-1118-21.doc No.3, 4, 5 and 6 of the said project up to the 40th foor 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 certifcate 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 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 certifcate 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 certifcate exercising power under sub-regulation (8) of regulation 6 of the Development Control Regulations which reads thus:-
Regulation 6:-
Sub-regulation (8) : Part occupancy certifcate :- When requested by the holder of the development permission, the Commissioner may issue a part occupancy certifcate for a building or part 81/99 WPST-1118-21.doc thereof, before completion of the entire work, as per the development permission, provided suffcient precautionary measures are taken by the holder to ensure public safety and health. The occupancy certifcate 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 certifcate of the building or part thereof before completion of the entire work, as per the development permission, can be granted subject to precautionary measures which may be provided by the authorities. By exercising these statutory powers, part occupancy certifcate was granted in favour of respondent no.5. Accordingly acting on the occupancy certifcate, possession of the tenements was also handed over to the fat purchasers since November 2017. Considering the aforesaid clear provision as contained in the Development Control Regulations, we do not see any substance in the contention as urged on behalf of the petitioner that the MMRDA in any manner was prohibited from granting part occupancy certifcate and the issuance of part occupancy certifcate was illegal. The contention of the petitioner that till the height of the building was brought to its permissible level, part occupancy certifcate ought not to have been granted, also cannot be accepted, in view of the above provisions of the Development Control Regulations.
23. It is therefore clearly seen that no permission is necessary for demolition of an existing structure or building or part thereof which would be undertaken to comply any statutory notice issued 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 82/99 WPST-1118-21.doc prohibit respondent no.5 from undertaking removal or demolishing of the upper foors 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 foors / 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 foors 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 learned 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 foors.
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 certifcate granted to the Petitioners and directions from this Court against the Authority to register the project of the Petitioners under the Act, had fled Second Complaint before the Adjudicating Offcer. This fling had been done by 83/99 WPST-1118-21.doc 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 certifcate within three months window under Section 3(1) of the Act since there were numerous complaints fled raising this issue. This order constituting the Full Bench was challenged by the Respondents / Complainants herein by fling Writ Petition No.3701 of 2019, which was disposed of by this Court keeping challenge to jurisdiction of the Petitioner's open.
74. The issue of resjudicata has been brushed aside by the Appellate Authority by placing reliance upon the decision of the Appellate Tribunal in Haresh Asher (Supra) and paragraph 30 of the impugned order reads as under:-
30. It is the contention of the respondent that since there was a full bench order where it is held that the authority will not get jurisdiction if the project is not registered, the judgment of single member in Asher's case, is a judgment per incuriam. On the other hand, it is submitted on behalf of complainant that the judgment in Haresh Asher was upheld by the Appellate Tribunal and it has achieved fnality.84/99
WPST-1118-21.doc What was held by the learned Member and Adjudicating Offcer was that though occupancy certifcate was received, amenities as per agreement were not provided and therefore, the authority was having jurisdiction to decide this issue. What was submitted on behalf of respondent was that the order passed by learned Member was interim order and not a fnal order. Later on complaint came to be withdrawn and therefore, there is no fnality to this order. The fact however remains that the fnding 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 fnding 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 Offcer 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 certifcate and upon which for registration of the Petitioner project under the Act.
76. We do not fnd any substance in submissions 85/99 WPST-1118-21.doc 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 fnd that the Appellate Authority 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 fndings of the Adjudicating Offcer 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 fnding 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 certifcate 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 86/99 WPST-1118-21.doc which would not make the principles of res judicata applicable in the present case. The decisions of M.D. Jaiswal (Supra) and Johnson (Supra) relied upon by the learned counsel for the Respondents/Complainants in this context are thus not applicable in the facts of the present case.
77. The submissions of the learned Counsel for the Respondents / Complainants that registration of a project is not a condition precedent for maintaining or entertaining a complaint / application for refund or compensation or for interest cannot be applicable to a project or phase thereof not requiring registration on account of it being completed and being issued an occupation certifcate. It has been clearly held by the Division Bench in Neelkamal (Supra) that the Act is applicable only to projects which are registered under the Act and thus the complaint in respect of the project not requiring registration cannot be maintainable. The provision under the Act i.e. Section 59 which provides that non-registration of a real estate project is an offence & punishable therein can only apply to projects which although requiring registration have not been registered in contravention of Section 3 of the Act. It 87/99 WPST-1118-21.doc is in this context that the Division Bench of this Court in Neelkamal (Supra) held that the provisions of the Act are retroactive.
78. Accordingly, we hold the frst issue viz. whether the Adjudicating Offcer 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 affrmative.
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 88/99 WPST-1118-21.doc Section 3 of the Act that for ongoing projects on the date of commencement of the Act and where completion certifcate 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 date of commencement of the 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 offcers as deemed necessary which is or has been a District Judge to be an Adjudicating Offcer 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 Offcer 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 Offcer. It is for the Authority at the outset to determine whether the 89/99 WPST-1118-21.doc 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 Offcer could never have adjudged the complaint under Section 71 of the Act on account of the project not requiring registration. He has in our view correctly submitted that issue of registration would frst require determination by the Authority before Adjudicating Offcer could take cognizance of the complaint. This bifurcation between scope and powers of the authority and Adjudicating Offcer has been acknowledged by this Court in Lavasa Corporation (Supra). Paragraph 76, 77, 78 and 79 read as under:-
"76. Moreover, if the Appellant is permitted to raise such defence, it would be as good as allowing the 'Adjudicating Authority', established under the RERA, to go behind the Registration Certifcate for holding that the said registration under RERA is not applicable to the project of the Appellant. Can the Adjudicating Authority do so? The answer has to be in the negative, if the scheme of the RERA is considered. It is pertinent to note that, under the RERA, there are two different Authorities established; one is Real Estate Regulatory Authority, which is defned under Section 2(1) and established under Section 20 of the RERA. It is conferred with the jurisdiction to entertain the application for registration of the 90/99 WPST-1118-21.doc 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 'Qualifcation 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 suffcient to that effect.
77. As against it, the Adjudicating Authority under the RERA is defned in Section 2(a) as the 'Adjudicating Offcer' 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 under Sections 12, 14, 18 and 19 of the said Act. Section 31 provides that, the complaints are to be fled 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 Certifcate' 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 Certifcate' 91/99 WPST-1118-21.doc 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 Certifcate issued by one 'Authority' before the another 'Authority' and calling upon that 'Authority' not to consider such 'Certifcate of Registration' and then to hold that the RERA is not applicable to the said project. Once there is registration under the RERA, then it follows that, all the provisions of the RERA become applicable to such project, unless some phases are specifcally excluded from registration. It also becomes applicable to the persons, who have invested in the said real estate project. It is applicable both, to the Appellant and also to the Respondents. The Appellant, after having taken the advantage of registration under the RERA, cannot turn back and say that the provisions of the RERA are not applicable to the complaints made by the Respondents in respect of the very same project."
81. It is is thus clear from this decision as well as the scheme of the Act that the Authority which grants registration under the Act is different from the Adjudicating Authority.
82. The learned counsel for the Respondents / Complainants has placed reliance upon decision of the Supreme Court in the case of Pioneer (Supra). We fnd from this decision that the bifurcation between the Authority and Adjudicating 92/99 WPST-1118-21.doc Offcer has also 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 defned) would frst 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 affdavit, 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 satisfed that the promoter is a bona fde 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 satisfed that such events have, in fact, taken place. Registration once granted, may be revoked if it 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 defned 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 93/99 WPST-1118-21.doc be taken without frst 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. with such interest as may be prescribed and must, in addition, compensate the allottee in case of any loss caused to him. Under Section 19, the allottee shall be entitled to claim possession of the apartment, plot or building, as the case may be, or refund of amount paid along with interest in accordance with the terms of the agreement for sale. In addition, all allottees are to be responsible for making necessary payments in instalments within the time specifed in the agreement for sale and shall be liable to pay interest at such rate as may be prescribed for any delay in such payment. Under Section 31, any aggrieved person may fle a complaint with the authority or the adjudicating offcers set up by such authority against any promoter, allottee or real estate agent, as the case may be, for violation or contravention of the RERA, and rules and regulations made thereunder. Also, if after adjudication a promoter, allottee or real estate agent fails to pay interest, penalty or compensation imposed on him by the authorities under the RERA, the same shall be recoverable as arrears of land revenue. Appeals may be fled to the Real Estate Appellate Tribunal against decisions or orders of the authority or the adjudicating offcer. From orders of the Appellate Tribunal, appeals may thereafter be fled 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 offcer must frst determine that the 94/99 WPST-1118-21.doc 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 Offcer must frst 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 of the Act. This has no bearing on the issue of registration under the 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 95/99 WPST-1118-21.doc 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 Offcer 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 fled, the Adjudicating Offcer, has gone on the premise that the complainant has a discretion to either fle a complaint with the Authority or the Adjudicating Offcer. This has been recorded in paragraph 54 of the impugned order. In paragraph 55 of the impugned order, the Adjudicating Offcer has gone on to hold that if the Adjudicating Offcer is required to refer the complaint to the Authority it would be beyond the provisions of the Act, Rules, Regulations. It has further held that under sub- section (d) of Section 72, the Adjudicating Offcer can consider such factors as the Adjudicating Offcer considers necessary to the case, in furtherance of justice. He has thus in paragraph 56 of the impugned order held that a complaint even when the 96/99 WPST-1118-21.doc project is not registered with the Authority is very much tenable before the Authority or the Adjudicating Offcer in respect of violation of the provisions under the Act by allotees and promoters and Real Estate Agents and also where there is a case of breach of the terms of the contract committed by the allottees, promoters or real estate agents provided for by the Act. He has gone on to answer the issue of jurisdiction in the affrmative i.e. the Adjudicating Offcer has jurisdiction to go into a complaint of the Respondents / complainants.
85. We fnd that the impugned order is passed contrary to the provisions of the Act as well as the decisions of this Court and the Supreme Court which have clearly held that the Adjudicating Offcer 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 97/99 WPST-1118-21.doc occupation certifcate had been granted upto 40 th foor 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 Offcer to have decided otherwise in the impugned order.
86. We are thus of the view that the Adjudicating Offcer 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 directions pertaining to aspects of registration of the project or part thereof in terms of Section 3 read with Section 31 of the Act, being one of its functions under Section 34 of the Act. Both the issues raised in the Petition are thus decided in the affrmative and the relief sought for in the Petition requires to be granted.
87. Accordingly, we pass the following order:-
(i) Rule is made absolute in terms of prayer clause
(a), which reads thus:-98/99
WPST-1118-21.doc
a) That this Hon'ble Court:-
i) be pleased to issue a writ of certiorari calling for the records and proceedings leading to issue of the impugned order date 31.12.2020 (Exhibit -B) and after considering legality, validity, proprietary or otherwise thereof, be pleased to quash and set aside the impugned Order dated 31.12.2020 (Exhibit -B);
ii) be pleased to hold and declare that in view of the Petitioner is not required to register the phase of the project "Lodha Dioro" upto 40th Floor under the provisions of Section 3 of the Act in view of the part occupancy certifcate in respect thereof having been obtained / issued by the MMRDA prior to 1.8.2017.
(ii) The Petitioners are directed to remove all offce objections on or before 31st March, 2021.
(iii) Writ Petition is disposed of. There shall be no order as to costs.
( R. I. CHAGLA J. ) (K.K. TATED, J.)
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