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56. The Senior Counsel next submitted that the deeming fiction in Section 5(2) of the RERA Act interpreted with the aid of the scheme of the RERA Act (including the purpose of the RERA Act as provided in the Frequently Asked Questions issued by the Ministry of Housing & Urban Poverty Alleviation, Government of India) and the preamble shows that the same has been incorporated by the Legislature to counter inter alia the delays and laches in compliance processes.

57. In this backdrop he submitted that the petitioner had initially made an application for Towers 1 & 2 on 02.06.2023, which was rejected by UPRERA on 16.07.2023 with the right to the petitioner to re-apply for registration. Accordingly, the petitioner had made a fresh application on 31.07.2023 along with all the relevant documents, Assignment Agreement, GPAs, which were sought for while rejecting the earlier application. An objection was raised on 22.08.2023, which was duly answered by the petitioner.

75. Sri Nandan, Senior Advocate further submitted that under the RERA Act, the owner has no role to play. It is only the promoter who is liable for each and everything and even the RERA Act recognizes both the categories, firstly, the promoter as the owner of the land secondly, and the promoter, who has the development agreement or any other agreement with the owner of the land. All that UPRERA can see is whether the owner of land has a valid title and is free from all encumbrances.

76. Learned Senior Advocate further submitted that the power of UPRERA starts from conceptualizing of the project and ends up once the completion certificate is given and the possession is handed over to the Association of allottees(AOA), thereafter, the provisions of Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) Act, 201026 (For Brevity Act of 2010) comes into play. Section 3(d) defines "apartment owner", Section 3(i) defines of Act 2010 "common areas and facilities" and Section 3(w) defines "promoter". The definition of the "promoter" in the Apartment Act is quite different from the definition of "promoter" in the RERA Act. Under the Apartment Act, promoter is one who constructs. Keeping this in mind, in Clause 7.3 of the Assignment Agreement it has been specifically stated that the developer (petitioner) shall abide by the provisions of RERA Act and also the Apartment Act. Section 9 of the Apartment Act lays down certain rights, and it is only because of this Section that Clause 10.5 was incorporated in the Assignment Agreement.

DEEMED PROVISION

84. Learned Senior Counsel, appearing on behalf of respondent authority stated that the petitioner cannot seek benefit of Section 5(2) of the RERA Act as his first application had already been rejected on merits after providing ample opportunity of hearing within thirty days. Since, the petitioner had again applied for registration of the same project without removing deficiencies, hence, it cannot get benefit of Section 5(2) of the RERA Act. The petitioner was directed by the answering respondent vide order dated 06.07.2023 to make fresh application in prescribed Form D within three months after clarifying on the queries raised by UPRERA supported by requisite documents. The rejection order dated 06.07.2023 was never challenged by the petitioner before any Court of Law, and has attained finality. However, the petitioner without removing serious legal deficiencies directed by the authority vide order dated 06.07.2023, an application (2nd Application ID-809171) for registration of its Tower 1 & 2 on 31.07.2023. This application on 31.07.2023 was not a fresh application but was an extended application, which was filed earlier. Since the second application was not accompanied by mandatory fees under Section 4 of RERA Act, hence, it cannot be said that the second application was a fresh application. He submitted that all applications have to be filed along with mandatory documents as per the provisions laid down under Section 4 of the RERA Act, but all the mandatory documents were not filed and the affidavit filed along with the document was false. Hence, the authority had rightly rejected the application filed by the petitioner.

APPLICATION UNDER SECTION 4 OF RERA ACT

150. Section 4 of the RERA Act lays down how a promoter has to make an application for registration of his project under RERA Act. As per Section 4(1) every promoter has to make an application to the Authority for registration of the UPRERA project in the form and manner provided accompanied by the fees. Section 4(2) of the Act lays down that while making an application the promoter shall enclose the documents set out in the Section.

151. In this case, the petitioner has made an application as a developer wherein it was clearly stated by him that the land is owned by JIL. The fact is that said land is actually owned by YEIDA and leased out to JAL/JIL, who has given a permission by way of Assignment Deed to develop the project land on which the petitioner is supposed to construct/sell the apartments to the allottees. The petitioner apparently comes within definition of 'promoter' wherein he does not own the land but he is developing the land. The application filed by the petitioner on 02.06.2023 completes all the formalities and has been accompanied by all the documents as contemplated under Section 4(2) of RERA Act. However, an objection was raised by UPRERA on 07.06.2023 that the petitioner may include JIL as a co-promoter. However, the first application of the petitioner was rejected on technical grounds on 06.07.2023 giving right to the petitioner to re-apply for registration of Towers 1 & 2 inter alia by providing (i) A copy of the Concession Agreement, (ii) A confirmation on which party will sign and execute the deed and which party will be the confirming party in the deed along-with the promoter to be executed in favour of the homebuyer, and (iii) A confirmation on which party will bear/pay the Farmer's additional compensation as demanded by YEIDA.