TSRERA: Project That Obtained The “Occupancy Certificate” Before The Enactment Of The RE(R&D) Act Is Not Subject Of Regulatory Authority.

The complainant approached the authority under Section 31 of the Real Estate (Regulation and Development) Act, 2016 (“RE(R&D) Act”) and Rule 34(1) of the Telangana Real Estate (Regulation and Development) Rules, 2017 (“Rules”) to seek directions from this authority to take action against the respondent.

Section 2(zf): Occupancy Certificate

Occupancy certificate means the occupancy certificate, or such other certificate by whatever name called, issued by the competent authority permitting occupation of any building, as provided under local laws, which has provision for civic infrastructure such as water, sanitation and electricity.

Section 31: Filing of complaints with the Authority or the adjudicating officer.

(1) Any aggrieved person may file a complaint with the Authority or the adjudicating officer, as the case may be, for any violation or contravention of the provisions of this Act or the rules and regulations made thereunder against any promoter allottee or real estate agent, as the case may be.

Explanation.—For the purpose of this sub-section “person” shall include the association of allottees or any voluntary consumer association registered under any law for the time being in force.

Rule 34: Filing of complaint with the Authority and inquiry by Authority.

• (1)Any aggrieved person may file a complaint with the Authority for any violation under the Act or the rules and regulations made thereunder, save as those provided to be adjudicated by the adjudicating officer, in Form 'M' annexed to this order, in triplicate, until the application procedure is made web based, which shall be accompanied by a fees of one thousand rupees in the form of either a demand draft or a bankers cheque drawn on a scheduled bank in favour of Authority and payable at the branch of that bank at the station where the seat of the said Authority is situated or through online payment, as the case may be.

Facts and Background

The complainants were allotted Unit No. 409, Block-L, Floor 4th, measuring 1260 square feet, at Aparna Kanopy Tulips. They entered into an Agreement of Sale/Apartment Buyer's agreement on 22.03.2016 with the Respondent for the said unit. The total sale consideration was Rs. 30,20,600, with Rs. 5,29,120 already paid against the allotment.

According to Clause 6 of the Apartment Buyer's Agreement, the Respondent was liable to deliver possession of the apartment by 22.03.2019. After waiting for more than 3 years beyond the deemed date of possession, the complainants sent a legal notice dated 06.07.2022 to the Respondent, requesting delivery of possession and payment of delayed interest amount along with other compensation for damages suffered.

The complainant is seeking interim orders to restrict the respondent from creating any third-party rights on the unit booked by them through sale, lease, or mortgage, and to keep the unit in the complainant's name until the conclusion of the current proceedings.

Additionally, the complainant is asking the respondent to pay interest for the delayed period up to the current date and according to the provided calculation sheet during the pendency of this complaint, and to initiate necessary processes for timely delivery of possession.

Contention of Complainants

The Respondent failed to deliver the apartment within the stipulated time and acted in a manner that abused their dominant position against the interest of the clients.

The statements made in the reply filed by respondents are false, as the respondents have never obtained the sanction plan nor was the occupancy certificate obtained.

It is not true that the construction project was completed much prior to the commencement of the Real Estate (Regulation and Development) Act of 2016 and Telangana Real Estate (Regulation and Development) Rules 2017.

Hon'ble RERA has jurisdiction to entertain the present complaint, as the Apartment Buyer's Agreement was entered with the mutual consent.

The Complainant has never defaulted in any payment request raised by the respondent and had shown an active approach regarding the said booking.

Contention of Respondents

M/s. Aparna Shelters Private Limited (“Respondent”) obtained permission for the construction of group housing apartments from the Hyderabad Metropolitan Development Authority in 2010.

That respondent completed the construction work as per the sanction plan and obtained the occupancy certificate on 12.3.2012.

That the permissions, construction, and occupancy certificate were all completed before the
commencement of the Real Estate (Regulation and Development) Act, 2016, and hence the Act has no application at all, and the complaint is incompetent and not maintainable.

That the project was completed much prior to the commencement of the Real Estate (Regulation and Development) Act 2016 and the Telangana Real Estate (Regulation and Development) Rules 2017, there is no jurisdiction to entertain the complaint under Rules 34(1) and (2) of the TS RERA Rules 2017.

RERA Order

As the property has already been issued an occupancy certificate in the year 2012, antecedent to the enactment of the RE(R&D) Act 2016, the same does not fall within the jurisdiction of this authority, as the Section 3(2)(b) of the RE(R&D) Act provides that no registration of the real estate project shall be required where the promoter has received the completion certificate for a real estate project prior to the commencement of this Act.

Also, Karnataka's HC decision in Provident Housing Limited v. Karnataka Real Estate Regulatory Authority & ANR. (Writ Petition No. 18448 of 2021) clearly articulates that in instances where the project had commenced and the occupancy certificate was issued before the enactment of the Act, such complaints are deemed not maintainable before the Authority.

Authority ordered in favour of the respondent concerning the maintainability of the complaint itself before this authority; the authority also directed the complainants to pursue the relief(s) prayed before this authority through the appropriate forum.

Case: (Sri Pabba Prakash & Anor vs M/s Aparna Sheltors Private Ltd.)

Case No: COMPLAINT NO.652 OF 2022

Counsel for Complainants: Advocate Drupad Sangwan

Counsel for Respondents: Advocate Syed Adil Ahmed Quadri

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