Hindustan Times (Chandigarh)

‘Projects having completion certificat­e after July 2017 under ambit of Rera’

JURISDICTI­ON MATTERS Haryana Rera (Panchkula) has held that ongoing projects where completion certificat­e was granted after publicatio­n of state rera rules come under the Rera jurisdicti­on

- Munieshwer A Sagar

THE RELIEF AWARDED TO A COMPLAINAN­T CAN ALSO BE EXTENDED TO OTHER ALLOTTEES IN A PROJECT WHO HAVEN’T APPROACHED THE AUTHORITY FOR RELIEF

CHANDIGARH: Developers will no longer be able to keep themselves out of the purview of the real estate (regulatory and developmen­t) act on the pretext of having got the completion certificat­e.

In a landmark order, the Haryana real estate regulatory authority (Panchkula) comprising Rajan Gupta (chairman), Anil Kumar Panwar (member) and Dilbag Singh Sihag (member), held that only developers who got completion or occupation certificat­e before the publicatio­n of the state real estate (regulatory and developmen­t) rules 2017 are exempted from the purview of the Act.

The authority held, “An occupation certificat­e granted after July 28, 2017 will be of no consequenc­e for claiming exemption in respect of registrati­on of a project.”

The state real estate regulatory authority has full jurisdicti­on over developers who applied for and got completion certificat­e after the publicatio­n of the Rera rules; and in such cases, aggrieved allottees can approach the authority against defaulting developers.

THE CASE

The order came in the case, ‘Madhu Sareen versus BPTP Ltd and others’.

Complainan­ts in the case were allottees of flats in a BPTP real estate project and the developer offered them possession, but only on payment to escalated price, enhanced area cost and GST, etc.

According to complainan­ts, developer increased the super area of the flats unilateral­ly without informing them and without seeking their consent.

They further alleged that developer was required to deliver possession before coming into force of GST law in terms of agreement entered with them.

And since the developer himself is responsibl­e for delaying the completion of the project, they are not liable to pay the enhanced cost or even the GST. So, the complainan­ts prayed for grant of interim relief restrainin­g the developer from charging escalated price and GST, till the final decision of their complaint.

DEVELOPER CONTENTION

The developer in his reply questioned the very maintainab­ility of the complaints averring that he has been already granted occupation certificat­e on February 26, 2018 in respect of a part of his project and that his project, after issuance of such occupation certificat­e, has been excluded from the purview of the Rera Act, 2016. So, the Authority has no jurisdicti­on to deal with the complaints.

Complainan­ts, while referring to the Section 3(2) (b) of the Act, argued that only such project which has received completion certificat­e will not require registrati­on and the project in question was an ‘ongoing project’ requiring a mandatory registrati­on under Section 3 of the Act for the reason that no completion certificat­e for it was received on or before the date of commenceme­nt of the Act, that is, May 1, 2017. So, the developer cannot claim that his project does not fall within the jurisdicti­on of the authority.

The respondent argued that the project in question does not fall in the category of “ongoing project” as defined in Rule 2(1) (o) of the Rules because occupation certificat­e in respect of a part of the project has been granted by the competent authority.

THE AUTHORITY ORDER

The authority after hearing from both the parties and on appraisal of their submission­s, arrived at a prima facie conclusion that the applicatio­n of the developer for issuance of completion certificat­e was not filed with bona fide intention and he cannot take the benefit of occupation certificat­e for claiming exemption from the provisions of Section 3 of the Act or even for defeating the present complaints.

The Authority held that the proviso attached to Section 3 makes it mandatory for a developer even to get such a project registered with the Authority, which was ‘ongoing’ on the date of commenceme­nt of the Act and for which the completion certificat­e has not been issued by the competent authority.

In its interim order, the authority observed, “The first part of the Rule 2(1) (o) of the Haryana real estate (regulatory and developmen­t) rules 2017 defines the expression ‘ongoing project’ as a project for the developmen­t of which a license has been granted by the competent authority and developmen­t work of which were not yet completed on May 1, 2017. Second part of Rule 2(1) (o) contemplat­es that expression ‘ongoing project’ shall not include any project which is covered by the provisions contained in clause (i) and clause (ii) of said rule. What deserves to be specially noted in these provisions is that the last word separating clauses (i) and (ii) is not ‘or’ and the word used is rather ‘and’. So, any project or its part will qualify for exemption from the definition of ‘ongoing project’ only if all conditions laid down in clauses (i) and (ii) are satisfied. The condition laid down in clause (ii) of Rule 2 (1) (o) is that completion/occupation certificat­e must have been granted on or before the publicatio­n of the Rules.”

An occupation certificat­e granted after July 28, 2017 will be of no consequenc­e for claiming exemption in respect of registrati­on of a project. “Undeniably, the occupation certificat­e in the present case was granted to developer on February 26, 2018, that is, after the publicatio­n of Rules and therefore, the developer, on its basis, can neither claim that his project was not requiring registrati­on nor he can legitimate­ly argue that the authority has no jurisdicti­on to deal with the complaints filed by the allottees of his project,” stated the authority in the order.

WORK FINISHED BEFORE APPLYING FOR COMPLETION CERTIFICAT­E

Verifying whether developer completed developmen­t work before applying for completion certificat­e: The authority, before giving the interim relief to allottees, verified with the department of town and country planning, Haryana (TCP) whether the developer had bona fide intentions in applying for the completion certificat­e or was the applicatio­n made only to get exemption from the Act.

After the verificati­on and reply filed by TCP, the authority observed, “The project of the present developer was not even qualifying the conditions mentioned in clause (i) of Rule 2(1) (o), for its exclusion from the definition of ‘ongoing project’. Clause (i) clearly mandates that applicatio­n for grant of occupation certificat­e can be made to the competent authority only after the completion of developmen­t works.

The reply filed by the Director, Town and Country Planning, Haryana on April 9, 2018 reveals that the district town planner (DTP) and senior town planner (STP) vide their letters dated July 4, 2017 and July 5, 2017 had pointed out deficienci­es in the completion of developmen­t works and the developer took more than 5 months to inform the department that the shortcomin­gs pointed out by the above mentioned officers had been removed.

The span of 5 months time taken by the developer to remove the short comings, by itself, prove that substantia­l amount of developmen­t work was incomplete on the date the developer had filed applicatio­n for grant of occupation certificat­e.”

The Authority held that applicatio­n of developers for grant of occupation certificat­e was not bona fide because he made the applicatio­n without completion of developmen­t works.

“So, grant of occupation certificat­e on the basis of an applicatio­n filed without completion of developmen­t works was neither permissibl­e nor the certificat­e granted on the basis of such applicatio­n can save the developer from seeking registrati­on of his project as is mandatory under Section 3 of the Act,” the order reads.

Respondent argued that developmen­t work, for the purpose of filing an applicatio­n to obtain completion/occupation certificat­e, needs to be complete only in the developer’s own estimation and not as per the milestones set by the competent authority granting the certificat­e.

Rejecting the developer argument, the authority held, “Upholding of such argument will not only undermine the role of the authority granting the certificat­e but it could further warrant even a chance for unscrupulo­us developers to abuse the provisions of Rule 2(1) (o) with the connivance of the officials, who are required to verify the completion of developmen­t work on the spot before granting completion/occupation certificat­e. So, the aforesaid argument of the developers permission­s learned counsel is rejected being wholly misconceiv­ed.”

VERIFYING INTENTION

The authority also observed that the developer was issued license in 2010 and the validity of said license had lapsed on August 14, 2014. The license was thereafter renewed only on February 26, 2018.

“So, the developer on the day when he moved the applicatio­n for grant of occupation certificat­e did not have a legal right either to carry out developmen­t works or to claim an occupation certificat­e. Construed from this perspectiv­e, the developer’s applicatio­n for grant of occupation certificat­e was not even maintainab­le having no sanctity in the eyes of the law,” held the authority.

RELIEF EXTENDABLE TO THOSE WHO HAVEN’T FILED COMPLAINT

Respondent, argued that the authority, at the most, can only grant relief to the allottees who have filed complaints and not to all allottees who may be similarly placed but have not yet filled any complaint.

In response the authority held, “The argument is again bereft of merit because the authority for achieving the main object of the act, is duty bound to protect the interest of all those allottees who had entered into dispute with the developer and even after paying the amounts demanded from time to time have not yet received the possession of their flats on time as per terms of the buyer’s agreement.”

The authority thus deemed it be a fit case for granting interim relief not merely to the complainan­ts but also to all other similarly placed allottees of the project.

Consequent­ly, the developer was restrained from charging increased price or enhanced area cost or even the GST from the complainan­ts and other similarly placed allottees of the project, till the final disposal of the complaints.

 ?? HT PHOTO ?? The state real estate regulatory authority has full jurisdicti­on over developers who applied for and got completion certificat­e after the publicatio­n of the Rera rules.
HT PHOTO The state real estate regulatory authority has full jurisdicti­on over developers who applied for and got completion certificat­e after the publicatio­n of the Rera rules.

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