Until A Project Is Registered Under RERA, No Reliefs Can Be Claimed Under RERA; Appellate Tribunal Dismisses Appeal Against MahaRERA Order
By : Legal Era
Update: 2020-07-22 05:35 GMT
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The Maharashtra Real Estate Appellate Tribunal has held that in order for an aggrieved allottee to claim relief under the Real Estate (Regulation & Development) Act, the project in question must be registered under RERA.The bench of SM Kolhe and SS Sandhu on July 13 heard an appeal filed by Mangal Murti Foundation, an association of flat purchasers who based on an advertisement, paid...
The Maharashtra Real Estate Appellate Tribunal has held that in order for an aggrieved allottee to claim relief under the Real Estate (Regulation & Development) Act, the project in question must be registered under RERA.
The bench of SM Kolhe and SS Sandhu on July 13 heard an appeal filed by Mangal Murti Foundation, an association of flat purchasers who based on an advertisement, paid Rs.10.58 crore for a total of 246 flats but the project was never completed. Shree Mahavir Patwa Developers and Construction Pvt Ltd is the respondent developer.
Moreover, the respondents entered into agreements for sale with a few purchasers, however such agreements were not executed with a substantial number of flat purchasers despite receiving registration fees and stamp duty. The construction of some buildings out of the total 10 buildings began around 2012-2013, but none were completed.
Thereafter, alleging that respondent has committed an act of misrepresentation and failed to deliver possession, appellant association filed a complaint with the Real Estate Regulatory Authority under Sections 12 and 18 of the Real Estate (Regulation and Development) Act, 2016.
The said Authority obtained a report dated February 5, 2019 about the project from Assistant Director Town Planning (ADTP), Thane to ascertain the facts. Based on the said report, the Authority came to the conclusion that the subject project did not have requisite and valid approvals which are mandatorily required for the purpose of registration of the project under the Act.
Accordingly, the Authority in the impugned order rejected the reliefs prayed for by the appellant by observing that directions cannot be issued for registration of an unauthorised project.
Appellant’s counsel Manish Gala argued that the Authority has erroneously recorded in the impugned order that appellant prayed for registration of the project though it was never sought by appellant. Also, the appellant's only demand was for withdrawal from the project and to get a refund of the amount paid by its members with interest and compensation on account of misrepresentation and failure to handover the possession of the flats as promised.
As per the said report by ADTP, Non-agricultural (NA) permission was granted by Collector, Thane on 12-01-2009 to use the land under the project for industrial purpose and not for residential purpose. Finding that the residential project undertaken by respondent violated the terms of NA permission, the Collector Thane cancelled the NA on June 6, 2015. During the proceedings, the Authority was informed by the office of the ADTP that the land under the project is reserved and no permission can be granted for construction of residential apartments on the said land.
Thus, Administrative Member SS Sandhu observed-
“In the absence of any requisite permissions from the competent authorities it is natural to conclude that the project has been rendered as unauthorised. Accordingly, and rightly so, the Authority has concluded in the impugned order that directions for registration of the project cannot be issued as it was unauthorised and it did not have requisite approvals which are mandatorily required for registering the project as per Section 4 of the Act.”
Moreover, Judicial Member SM Kolhe referred to the judgment of Bombay High Court in Neel Kamal Realtors case in on June 20, 2017, wherein it was settled hat until the project is registered under the Act, it will not attract the provisions of the Act to extend any reliefs sought by Appellant under Sections 12 and 18 of the Act.
Also, Bombay High Court’s judgement in Lavasa Corporation Ltd. Vs Jitendra Jagdish was examined.
Finally, both members of the bench concluded that no relief can be claimed by the appellants and dismissed the appeal noting-
“The project was launched for the purpose of selling flats. So, it must be registered under Section 4 of RERA, unless it is expressly exempted by statute. This project is having no approvals from the competent Authority. This project is developed on land which is reserved for industrial purposes. Thus, this project having no approvals and permission of the competent Authority cannot be registered under RERA. To sum up, the project is not eligible for registration and project is unauthorized for want of approvals and permission of the competent Authority, provisions of RERA are not applicable to such unauthorised and unregistered project and parties involved in the transaction of such unauthorised project are not entitled to seek any remedy under the provisions of RERA.”