Case Note & Summary
The matter concerned a challenge under Article 226 of the Constitution to an order of the Adjudicating Officer, Maharashtra Real Estate Regulatory Authority (MahaRERA) passed on 31 December 2020 in Complaint No. CC 006000000056889. The petitioner, a real estate developer, had entered into a registered agreement for sale with the respondent purchasers on 23 July 2013 for Flat No. 2503 in Wing A of the building Lodha Dioro, part of the New Cuffe Parade project at Wadala. The total consideration was Rs. 2,70,78,705, with possession promised by 31 December 2015. The RERA Act came into force on 1 May 2017, requiring promoters to register ongoing projects within three months, by 31 July 2017. A part occupancy certificate for ground plus 40 floors of the building was issued by MMRDA on 8 June 2017, within that window; the respondents' flat was on the 25th floor. The respondents filed complaints before MahaRERA in 2017 alleging delay and seeking compensation and registration. The Full Bench of MahaRERA in Prasad Patkar v. Runwal Projects held that MahaRERA could entertain complaints only in respect of registered projects, and the first complaint against the petitioner was dismissed on 18 December 2017. The respondents then filed Writ Petition (L) No. 2639 of 2018 challenging the part occupancy certificate, but the High Court dismissed it on 16 October 2018 with directions to MMRDA to supervise further work. The respondents filed a second complaint in November 2018. After litigation over jurisdiction, the High Court on 11 September 2019 directed the Authority to decide the second complaint considering jurisdiction objections. The Adjudicating Officer passed the impugned order on 31 December 2020 holding the second complaint maintainable and granting Rs. 2,00,000 compensation, Rs. 2,70,664 for deficit carpet area, interest at 10.40% p.a. and costs of Rs. 20,000. The petitioner contended that on a proper interpretation of the Act and Registration Rules, a phase for which a part occupancy certificate was received within the three-month registration window was not required to be registered, and therefore MahaRERA lacked jurisdiction. The petitioner relied on definitions of Building, Completion Certificate, Project and Real Estate Project. The respondents had earlier challenged the grant of part occupancy certificate and sought revocation and registration. The High Court issued Rule on 29 January 2021 and the matter was reserved on 26 February 2021 and pronounced on 1 March 2021. The supplied excerpt does not include the final operative decision of the High Court on the present writ petition.
Headnote
A) Real Estate Regulation - Mandatory Registration of Ongoing Projects - Section 3 of Real Estate (Regulation and Development) Act, 2016 - Promoters had to register ongoing projects with MahaRERA by 31 July 2017, three months from 1 May 2017; a real estate project or phase for which a completion certificate or part occupancy certificate had been received before that deadline was not required to be registered. The petitioner argued that part occupancy certificate dated 8 June 2017 for ground plus 40 floors of Lodha Dioro, where respondent flat was on 25th floor, exempted the phase from registration. Held that the statutory registration window commenced on 1 May 2017 and expired on 31 July 2017 (Paras 7-9, 21). B) Real Estate Regulation - Jurisdiction of MahaRERA - Section 3 of Real Estate (Regulation and Development) Act, 2016 read with Rule 4 of 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 - MahaRERA could entertain complaints only in respect of registered projects; complaints concerning unregistered phases were not maintainable. Full Bench in Prasad Patkar v. Runwal Projects held that MahaRERA had no jurisdiction over complaints relating to towers not subject to registration; the first complaint against petitioner was dismissed on this ground. Held that the first complaint was dismissed on 18 December 2017 (Paras 11-12). C) Real Estate Regulation - Part Occupancy Certificate - Section 2(q) of Real Estate (Regulation and Development) Act, 2016 - A part occupancy certificate certifying development of part of building according to sanctioned plan was treated as completion certificate for that phase, bringing the phase outside registration mandate if obtained within three-month window. The petitioner relied on definitions in Sections 2(j), 2(q), 2(zj) and 2(zn). Held that part occupancy certificate received on 8 June 2017 for ground plus 40 floors was within the registration window (Paras 9, 21). D) Constitutional Law - Writ Jurisdiction - Article 226 of Constitution of India - High Court entertained writ petition challenging MahaRERA adjudicating officer's order and granted Rule; earlier writ petitions from same parties led to directions to consider jurisdiction objections and dismissal of challenge to part occupancy certificate. Held that Rule was issued on 29 January 2021 and petition taken up for final disposal (Paras 1-2, 13, 15, 18-20). E) Real Estate Regulation - Compensation and Deficit Carpet Area - Real Estate (Regulation and Development) Act, 2016 - Adjudicating Officer held second complaint maintainable and granted compensation of Rs.2,00,000 for service ducts passing through bedrooms in luxury project, Rs.2,70,664 for deficit carpet area, interest at 10.40% p.a. and costs of Rs.20,000. Held that the order was challenged in present writ petition on jurisdictional and merits grounds (Para 19).
Issue of Consideration
Whether the Petitioners were required to register the phase of project 'Lodha Dioro' up to 40 floors under Section 3 of Real Estate (Regulation and Development) Act, 2016 when part occupancy certificate was obtained on 8 June 2017 within three-month registration window; whether MahaRERA Adjudicating Officer had jurisdiction to entertain complaint concerning unregistered project phase; validity of impugned order granting compensation, deficit carpet area, interest and costs.
Law Points
- Section 3 of Real Estate (Regulation and Development) Act
- 2016 requires registration of ongoing projects within three months from 1 May 2017
- a phase with part occupancy certificate received within that window is exempt from registration
- MahaRERA has jurisdiction only over registered projects
- writ petition under Article 226 lies against MahaRERA adjudicating officer order
