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TMI Blog2021 (3) TMI 1266X X X X Extracts X X X X X X X X Extracts X X X X ..... here the writ is filed showing that the authority had no jurisdiction or had purported to usurp jurisdiction without any legal foundation. 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, there is no substance in the challenge to the maintainability of this Petition and in fact this Petition is very much maintainable. From the plain language of Section 3(1) it is clear that registration must be in respect of any Real Estate Project or part of it. The window of three months in the first proviso of Section (3) (1) makes it clear that in so far as ongoing projects are concerned, the promoter has been given the said window of three months within which he can apply for registration of the said ongoing project. The ongoing project would be a Real Estate Project and/or a phase of the project which would require registration during the three months window after the commencement of Section 3 of the Act i.e. 1st May 2017. Section 3(2) ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion with the Government one or more judicial officers as deemed necessary which is or has been a District Judge to be an Adjudicating Officer 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 Officer is restricted to adjudication of compensation and only in respect of violation of Sections 12, 14, 18 and 19 - It is is thus clear from the scheme of the Act that the Authority which grants registration under the Act is different from the Adjudicating Authority. The Adjudicating Officer had no jurisdiction to determine the registration of the project or phase thereof under Section 3(1) of the Act. This was solely within the sphere of powers of the Authority to pass the necessary orders and 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 affirmative - Petition disposed off. - WRIT PETITION (ST) NO. 1118 OF 2021 - - - Dated:- 1-3-2021 - K.K. TATED A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 defined in Clause 1.9 of the agreement for sale. The total consideration payable in respect of the Flat is a sum of ₹ 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 fit 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. 8. Under the Maharashtra Real Estate (Regulation and Development) (Registration of Real Estate Projects, Registration of Real Estate Agents, Rates of interest and Disclos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain the complaints. They were held to be not maintainable. 12. Thereafter the first complaint filed 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 certificate 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 filed 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 challenged the grant of the part occupancy certificate by the MMRDA in favour of the Petitioners and sought for revocation of the part occupancy certificate and upon which for a direction against the Petitioners to register the ground plus 40 floors 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Officer on 31st December 2020 after considering the detailed reply filed by the Petitioners raising objections as to the maintainability of the Second Complaint. The Adjudicating Officer held that the Second Complaint was maintainable and the Adjudicating Officer 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 ₹ 2,00,000/- has been granted to the complainants. In addition the Petitioners have been directed to pay the Complainants a sum of ₹ 2,70,664/- for deficit 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 filing the complaint along with costs quantified at ₹ 20,000/- Being aggrieved by the impugned order, the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 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 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 certificate 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. (2017) 15 SCC 133 and New India Assurance Company Ltd. Vs. Nusli Neville Wadia Anr. (2008) 3 SCC 279. 24. The learned Senior Counsel for Petitioners has 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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /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 certificate/building completion certificate which would include a part occupancy certificate 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 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 B which requires. That the time period within which the project shall be completed by me/promoter from the date of registration/project to be filled up. He has also relied upon registration certificate 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the project. He has submitted that the Act contemplates a bifurcation between the Authority and the Adjudicating Officer. A plain reading of Section 71 of the Act makes it evident that the scope of the Adjudicating Officer's power is restricted to adjudication of compensation and that too only in respect of matters arising 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 first require determination by the Authority before the Adjudicating Officer could take cognizance of the same. He has submitted that bifurcation between the scope of powers of the Authority and Adjudicating Officer has also been acknowledged by this Court in Lavasa Corporation Ltd. Vs. Jitendra Jagdish Tulsiani Ors. (2018) 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case where the phase of the project does not require registration in the first 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 Officer could not have entertained the Second Complaint in the first place and therefore, ought to have dismissed it at the very threshold itself. He has placed reliance on the decision of the Supreme Court in the case of Sulochana Amma Vs. Narayanan Nair (1994) 2 SCC 14 para 5-7. 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 Madras AIR 1968 SC 1196, 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 filed under Article 226 of the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rights of either party in the said order. He has submitted that in the Haresh Asher case (supra), the learned Member and Adjudicating Officer 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 Adjudicating Officer holding that MahaRERA has jurisdiction over the said project. He has submitted that the Petitioners had filed 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 ₹ 2,00,000/-. Hence, the order dated 25th October 2018 of the Appellate Authority has attained finality 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncy certificate (for 40 floors) 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 certificate 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 buildings as per sanction plan have not received occupation certificate or completion certificate . 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 clarified by Explanation (i) of Regulation 4. 40. The learned Counsel for Respondents/Complainants has submitted that the mandate under the first proviso of sub Section (1) of Section (3) would be that if a project does not possess a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of the premises for habitation whichever is earlier. He has submitted that in contrast a completion certificate would mean certification that the Real Estate Project has been developed according to the sanction plans, lay out plans and specifications 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 Appellate Tribunal had held that ongoing projects requires registration under the Act vide the order dated 25th October, 2018 passed in the Haresh Asher case (Supra). The same having attained finality. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence 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 filed before the consumer forum to the adjudicating officer. He has submitted that the filing 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 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 Officer has juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on between the Authority and Adjudicating Officer 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 infirmity in the impugned order and the impugned order ought not to be interfered with by this Court exercising writ jurisdiction. 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 Officer and two main issues arise which are as under:- (a) whether the Adjudicating Officer had no jurisdiction to entertain the complaint as the subject project did not require registration in terms of Section (3) of the Act? (b) whether it was not within the powers of the Adjudicating Officer to pass orders and/or directions pertaining to aspect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatutory remedies, is not affected, specially in a case where the authority against whom the writ is filed 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 filed 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, 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 efficacious remedies available to the petitioner approaching this Court seeking a writ of certiorari to challenge the adverse order. As has been succinctly clarified by the Hon'ble Supreme Court that this writ of certiorari goes to a Court. It ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n or the party invoking this writ has an alternate and equally efficacious 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 certificate before the statutory 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) defines building' includes any s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tanding anything contained in subsection (1), no registration of the real estate project shall be required-- (a) where the area of land proposed to be developed does not exceed five 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 five hundred square meters or eight apartments, as the case may be, inclusive of all phases, for exemption from registration under this Act; (b) where the promoter has received completion certificate for a real estate project prior to commencement of this Act; (c) for the purpose of renovation or repair or redevelopment 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 affidavit, which shall be signed by the promoter or any person authorised by the promoter, stating:-- (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 promote ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity 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 specified under subsection (1), provide a registration number and a Login Id and password to the promoter for accessing the website of the Authority and to create his web page and to fill 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 man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 other persons such as companies or firms 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 five 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eed 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) 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 build ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal 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 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 fix 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 thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall record his reasons in writing for not disposing of the application within that period. (3) While holding an inquiry the adjudicating officer 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 officer, may be useful for or relevant to the subject matter of the inquiry and if, on such inquiry, he is satisfied that the person has failed to comply with the provisions of any of the sections specified in sub-section (1), he may direct to pay such compensation or interest, as the case any be, as he thinks fit 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 defined number of floors in a multi-storeyed building/wing; Rule 4 : Disclosure by promoter of ongoing real estate projects (1) The promoter of an ongoing real estate project, in which all buildings as per sanctioned plan have not received occupancy certificate or completion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulated at the prevailing ASR rate on the date of certificate. (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 on any other basis, such as super area, super 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 specifications 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 notification of section 3 of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 certificate 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 Affidavit stating the time period within which it undertakes to complete the project or phase thereof as the case may be. Section 5(3) states that registration granted under the Section shall b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uilding or part thereof i.e. number of floors 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 certificate has not been received. It is clear from the definition of building under the Act that it includes any structure or erection or part of a structure or erection which is intended to be used for residential, commercial o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 find 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 certificate shall get the project registered under RERA, but, while getting project registered, promoter is entitled to prescribe a fresh time limit for getting the remaining development work completed. From the scheme of RERA and the subject case laws cited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we do not find 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 affidavit-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 figure 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate Authority dated 25th October, 2018 which reads thus:- 3. The Ld. Adjudicating Officer 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 findings 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 certificate and was not registered under the Act, MahaRERA did not have jurisdiction to entertain the complaint and hence the complaint was not maintainable. In the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 first place. 68. Given that the Authority in the First Complaint preferred by the Respondents/Complainants had decided the issue of maintainability against the Respondents/complainants, we are of the view that it was not open for the Adjudicating Officer to have entertained the Second Complaint. The decision of the Supreme Court in Sulochana Amma (Supra) would have same bearing. In that decision, it was held that when in a Suit for in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 final 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 Certificate dated 8 June 2017 ( Part OC ) with respect to Wings No. 3, 4, 5 and 6 of the said project up to the 40th floor of the said wings on 8 June 2017. A copy of the said Part OC is hereto annexed and marked as Exhibit I. 22. It appears that the said Part OC has been hurriedly obtained by Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f part occupancy certificate was illegal. The contention of the petitioner that till the height of the building was brought to its permissible level, part occupancy certificate 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 prohibit respondent no. 5 from undertaking removal or demolishing of the upper floors so as to comply with the requirement of the height of the building in the approval and sanction granted by the concerned authorities. Thus, even on this count the contention of the petitioners cannot be accepted. 24. However, considering the concern of the petitioners in regard to safety of the lower floors/superstructure of the building, we direct the MMRDA to sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal and it has achieved finality. What was held by the learned Member and Adjudicating Officer was that though occupancy certificate 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 final order. Later on complaint came to be withdrawn and therefore, there is no finality to this order. The fact however remains that the finding of Hon'ble Member that the authority is having jurisdiction as the amenities were not yet provided as per agreement was upheld by the Hon'ble Appellate Tribunal. Challenge to said finding was not pursued before Hon'ble High Court. 75. It has been held by the Supreme Court in the case relied upon by the learned Senior Counsel for the Petitioners in Virudhunagar Steel (Supra) that principles of res judicata is also be applicable in cases, where inter alia Writ Petitions have been disposed of by a speaking order. The Adjudicating Officer in the impugned order has not considered the judgment of this Court in Writ Petition (L) No. 2639 of 2018 which ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 first issue viz. whether the Adjudicating Officer had no jurisdiction to entertain the complaint as the subject project did not require registration in terms of Section (3) of the Act, in the affirmative. 79. Now coming to the second issue which has been raised in the Petition viz. whether the procedure and scheme of the Act warrant that it is solely within the Authority's sphere of powers to pass necessary orders and directions pertaining to aspects of registration in terms of Section 3 read with Section 31 of the Act? The Authority is established under Section 20 of the Act and derives its powers from Section 31 and its functions are contained in Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration 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 defined 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 projects. As can be seen from the provisions of Sections 3 and 4 of the RERA, application for registration of real estate project is to be made to this Real Estate Regulatory Authority, established under Section 20 of the said Act. Chapter 'V' of the RERA deals with the 'Establishment and Incorporation of the Real Estate Regulatory Authority'. Section 21 thereof deals with 'Composition of the said Authority' and Section 22 thereof deals with 'Qualification of Chairperson and Members of the Authority'. It is for this Authority to consider whether to grant registration or not and in case of breach of terms and conditions on the part of the Promoter, whether to revoke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 find from this decision that the bifurcation between the Authority and Adjudicating Officer 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 defined) would first have to be registered with the Real Estate Regulatory Authority, which, before registering such projects, would look into all relevant details, including delay in completion of other projects by the developer. Importantly, the promoter is now to make a declaration supported by an affidavit, that he undertakes to complete the project within a certain time period, and that 70% of the amounts realised for the project from allottees, from time to time, shall be deposited in a separate account, which would be spent only to defray the cost of construction and land cost ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority 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 filed to the Real Estate Appellate Tribunal against decisions or orders of the authority or the adjudicating officer. From orders of the Appellate Tribunal, appeals may thereafter be filed to the High Court. Stiff penalties are to be awarded for breach and/or contravention of the provisions of the RERA. Importantly, under Section 72, the adjudicating officer must first determine that the complainant has established default on the part of the respondent, after which consequential orders may then follow. Under Section 88, the provisions of RERA are in addition to and not in derogation of the provisions of any other law for time being in force and under Section 89, RERA is to have effect notwithstanding anything inconsistent contained in any other law for the time being in force . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 affirmative i.e. the Adjudicating Officer has jurisdiction to go into a complaint of the Respondents/complainants. 85. We find 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 Officer has only the power to adjudicate compensation under Sections 12, 14, 18 and 19. It is the function of the Authority under Section 34 for registering and regulating the Real Estate Projects. Thus it was the Authority who had the jurisdiction to decide on registration of the project under the Act. The Authority has already done so in the order dated 18th December, 2017 disposing of First Complaint of the Respondents/Complainants by holding that since the part occupation certificate had been granted upto 40th floor which included the fat of the complainants that phase of the project did not require registration with MahaRERA. Hence, the Authority having held that it had n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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