Merely Obtaining 'Occupancy Certificate' Before S.3 RERA Came Into Force Would Not Oust Jurisdiction Of Regulatory Authority: Punjab & Haryana HC

Justice Amol Rattan Singh observed:

"There being a difference carved out in the Act itself as to what is a completion certificate and an occupancy certificate, unless the petitioner had obtained a completion certificate for the project in question, prior to the date that Section 3 of Act came into effect, i.e. 01.05.2017, it was necessarily required to get itself registered with the respondent authority; but with a completion certificate still not having been obtained, simply obtaining of an occupancy certificate or having applied for such certificate in terms of the Haryana Building Code, 2017, we would not consider the petitioner to be outside the purview of the jurisdiction of the respondent Authority and therefore, if the petitioner is aggrieved in any manner of the impugned orders passed on the merits thereof, obviously it has its remedy of appeal before the Tribunal constituted under the said Act."

In the present matter the petitioner, M/s Experion Developers Private Limited, had sought issuance of a writ in the nature of 'certiorari' setting aside the proceedings pending before the Haryana Real Estate Regulatory Authority, Gurugram, in a Complaint Case. It further sought issuance of a writ of 'mandamus/prohibition' restraining the aforesaid authority from acting in contravention of the provisions of the Real Estate (Regulation and Development) Act, 2016.

The petitioner raised a basic issue on the jurisdiction of that Authority to pass the orders, with the contention being that the petitioner having received an occupancy certificate in respect of at least that part of the project as respondents no.2 and 3 would be concerned with, on 02.03.2017, and the RERA Act having come into effect (as regards Section 3 thereof) only from 01.05.2017, the project has to be treated to be a completed project and therefore there was no requirement for even registration of the project by the petitioner with the RERA authority in terms of Section 3.

Further, if the said respondents had any grievance qua any action of the petitioner, the appropriate forum for redressal of any such grievance would not be the respondent authority.

Counsel for petitioner basically argued that the petitioner having already applied for and obtained an occupation certificate as referred to above in terms of the Haryana Building Code, 2017, prior to 01.05.2017, there was no requirement at all to get itself registered with the Authority, it thereby being outside the purview of its jurisdiction.

Counsel for Haryana Real Estate Regulatory Authority submitted that there is an obvious anomaly between Section 3(2)(b) of the Act of 2016 and the aforesaid Rules of 2017, as Section 3(2)(b) reads to say that it is only after a completion certificate has been obtained by a developer in respect of any particular project, before the said Act came into effect, that it would not be required to get such project registered with the Authority; but with the petitioner having obtained only an occupancy certificate and not a completion certificate, necessarily it was required to get its project registered and therefore the jurisdiction of the Authority is very much existent qua the project.

After hearing counsels on both sides and referring to the definition of occupancy certificate and completion certificate the court observed that simply obtaining of an occupancy certificate or having applied for such certificate in terms of the Haryana Building Code, 2017, we would not consider the petitioner to be outside the purview of the jurisdiction of the respondent Authority.

At this juncture Advocate for the Haryana Real Estate pointed out that obviously an occupancy certificate is issued in respect of any part of a project as is ready for such occupation, with a completion certificate to be issued only upon the entire project being fully completed and therefore the parameters as contained in section 2(q) of the Act cannot be read to be pari materia with those provided in the aforesaid provision of the Building Code, especially as Section 89 of the Act stipulates that it shall have an overriding effect over any other law in force.

The Court referred to explanation of Section 3 that stated as follows:

"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"

Counsel for petitioner argued that since, even for the purpose of Section 3, each phase of a project is to be considered as a stand alone real estate project, the phase in question as respondents no.2 and 3 would be concerned with, having been completed by the petitioner, at least that part of the project would not be required to be registered.

"As regards that factual aspect and specifically with regard to as to whether the petitioner was allowed to complete the project in different phases in terms of the licence granted to it, and therefore whether that occupancy certificate for any particular phase as has been completed (if so), is to be treated to be a completion certificate in terms of Section 2(q) of the Act, is left to the appellate authority under the Act to decide on merits, keeping in view of course the judgement of the Supreme Court in M/s Newtech Promoters and Developers (supra), and any other law laid down on the subject." Court said.

In view of the above, the petition was dismissed.