Allotment Letter having no date of possession: Maharashtra RERA Tribunal asked TATA Housing to refund

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By SRELJ Bureau

In a land mark judgement, Maharashtra RERA Appellate Tribunal asked builder to refund the booking amount taken by TATA Housing Development Co Ltd. The Judgement said “In this matter, the foremost material and contentious issue is the date of possession which forms the sole basis for ascertaining the delay in possession’ Documents on record reveal that Allottee booked the flat on 24/06/2015 and allotment letter was issued on 11/07/2015. None of these documents stipulates date of possession’ Allottee’s contention is that possession was promised to be given by 2018 and later on it was revised to 2020 and ultimately to 2022 as is declared on the portal of Maha RERA. Contrary to this, it is argued by Developer and as observed by learned A’O’ also, date of possession was to be mentioned in the agreement for sale as
per the terms of booking form’ Developer has claimed that Allottee had shown his willingness to accept the possession by 2020 and was not happy with revised possession dale of 2022. It is further contended by Developer that final date of possession is 2022 as declared on Maha RERA portal and Developer never promised delivery of possession by 2018 or 2020 to the Allottee as falsely claimed by Allottee.”

As the original date of possession being in 2018, the Hon’ble Tribunal asked the Builder to refund the entire principle amount along with interest.

Maha RERA recognised COVID-19 period as Force Majeure

By SRELJ Bureau

In its Order dated 18th May 2020 vide Order No 14/2020, Maha RERA have invoked Force Majeure for COVID-19 Pandemic.

The Order with reference to the advisory issued by the Central Advisory Council on 13th May 2020, have extended time line for all all statutory compliance due to “Force Majeure” under the provisions of RER Act 2016.

The Order said “Whereas, in view of COVID-19 (Corona Virus) Pandemic and consequent nation-wide lockdown with effect
from March, 2020, reverse migration of labourers to their native places and break in supply chain of
construction material, the construction activities of real estate projects across the country have been severely
impacted.”
“Whereas, an urgent meeting of Central Advisory Council (CAC) was held on 29th April, 2020, and as per its
recommendations Ministry of Housing and Urban Affairs has issued Advisory regarding extension of
registration of real estate projects and concurrently extending timelines of all statutory compliances due to
‘Force Majeure’ under the provisions of Real Estate (Regulation and Development) Act, 2016 (RERA), on 13th
May 2020”

Accordingly, in keeping with the advisory of Government of India and in exercise of the powers under section
37 read with Section 34(a), 34(f) and 34(g), a force majeure period of six months, from 15 th March to 14th September, 2020 is being invoked and the following directions are issued with immediate effect:

MahaRERA vide Order No. 13/2020 has already revised project validity by three months. The said
validity is extended by a further period of 3 months suo-motu. MahaRERA shall accordingly issue
project registration certificates, with revised timelines for such projects, at the earliest. The aforesaid
extension will be in addition to the extension already granted or that may be granted to a project under
the first proviso to Section 6 of the Act.
• For further extension beyond the aforesaid 6 months, for adversely affected projects, concerned
promoters will have to apply in accordance with provisions of Section 6. MahaRERA may at its
discretion waive the fee for such extension due to force majeure in accordance with rule 7 of
Maharashtra Real Estate Registration Rules, 2017.
• The time limits for compliance under Section 11, which become due anytime during force majeure
period, stand automatically extended for a period till the expiry of force majeure period.
• The Force Majeure period will be treated as a “moratorium period” for the purpose of calculating
interest under section 12, 18 19(4) and 19(7) of the Act.
• The work of registration of sale documents has been adversely affected due to non-functioning of the
offices of the Sub-Registrar. Therefore, any registration of agreement for sale, which becomes due
during the force majeure period under Section 13 of the Act, can be registered in a period extending till
the expiry of force majeure period.
• The dates of possession mentioned in already registered agreements for sale, shall be deemed to be
extended by the Force Majeure period.
• Due to non-functioning of the concerned offices, the work of transfer of title and conveyance has been
adversely affected. Therefore, any compliance under Section 17 that becomes due during the Force
Majeure period is allowed to be completed in a period extending till the expiry of the force majeure
period.
• In the Neel Kamal Realtors Suburban Pvt. Ltd. and anr. Vs Union of India and Others, the Hon’ble
Bombay High Court division bench in para 115 of its order has observed that the object and purpose of
the Real Estate (Regulation and Development) Act, 2016 is to complete the development work within
the stipulated time. Keeping in view the spirit of this order and to ensure that the available liquidity in
the designated RERA Accounts get utilized, on priority, for completion of the project, any refund,
which under rule 19 of MahaRERA Rules becomes due during the Force Majeure period is allowed to
be executed in a period extending up to one month after the expiry of the Force Majeure period.
• Similarly, any amount, which under Section 40 of the Act becomes payable during the Force Majeure
period, shall be recovered after the expiry of the Force Majeure period.

Agriculture plots are out of RERA’s jurisdiction: MREAT

 

BY SRELJ Bureau

In a landmark judgement, Maharashtra Real Estate Tribunal ruled that Agriculture lands which have not received Non Agriculture permissions, do not fall under the jurisdiction and need not register with RERA Authorities.

Hearing an appeal in the matter of Mohammed Zain Khan vs Emnoy Properties India, Hon’ble Tribunal have upheld that Agriculture land and plot which have not received NA permissions are not Real Estate Projects and hence should not be registered.

The Hon’ble Tribunal observed ” We find that by applying the above observations to the facts of the case in hand, the Authority observes in para 10 of the order that the land under this Project is admittedly an agricultural land and till date no N.A. permission or order is granted by competent Authority to develop the same. Consequently, the Authority has held that the subject project is not a real estate project as defined under Section 2(zn) of the Act and the same cannot be registered under Section 3 of the Act. ”

The Hon’ble Tribunal further added: “We have given a thoughtful consideration to the relevant provisions of the Act. In our view the real estate project as defined under Section 2(zn) contemplates development of land into plots or apartments. In case of an agricultural land, as is the case in the instant appeal, to be designated as a real estate project, necessary permissions are required to effect the development of the said land. Compliance of such a requirement also seems essential from the perspective of provisions under Section 11(4) detailing therein the obligations of a promoter and Section 4 for mandating the requirements of certain documents/ permissions necessary for registration of the project under Section 3 of the Act. In this regard, we note that Complainant has utterly failed to establish that the said land had all necessary N.A. or other permissions for its development and for undertaking its registration as real estate project under the Act.”

 

 

RERA Compliance extended to three months including project completion date : MAHA RERA

By Legal Bureau

Maharashtra RERA authority have extended all compliance and date of completion which were falling in March, April and May 2020 till 30th June 2020. In an order 13/2020 dated 2nd April 2020, the Authority have extended all compliance till 30th June 2020. The Order said “For all MahaRERA Registered projects where completion date, revised completion
date or extended completion date expires on or after 15th March 2020, the period of
validity for registration of such projects shall be extended by three months.
MahaRERA shall accordingly issue project registration certificates, with revised
timelines for such projects, at the earliest.”

The Order further state that : “Further, the time limits of all statutory compliance in accordance with the Real
Estate (Regulation and Development) Act, 2016 and the rules and regulations made
there under, which were due in March / April / May are extended to 30th June 2020.”

It means that all the completion dates falling in March, April and May 2020 are automatically extended till 30th June 2020. Also the Authority shall issue a new revised project registration certificate. For all the compliance such as Form 1, 2 and 3 the same is extended till 30th June 2020.

Download Order here: MAHARERADelay

Violating Consent Terms filed in RERA is Tantamount to Unfair Trade Practice : MAHA RERA

By SRELJ Bureau

Jalala Menanon V/s Ayyas Abdul Sayyed (CC006000000000827) Order by Full Bench dated: 13th December 2017, Full Bench.

The Complainant alleges that she booked Row house No.1 in Cluster No.6, Spanish Residency situated at Naigaon. On the cancellation of the allotment, the Respondents were liable to refund her money. A settlement was arrived at between the parties and respondents agreed to refund Rs.19,50,000/- by issuing post-dated cheques. The respondents stopped the payment of the cheque dated 19.09.2017 of Rs.3 lakhs and also refused to honour the other cheques. It is her allegation that this practice adopted by the Respondents is an unfair practice and it also amounts to a fraudulent act which attracts Section 7 (f) (c) & (d) of Real Estate (Regulation & Development) Act, 2016.

The Learned Advocate of the Respondents submits that the settlement was arrived at under coercion of the Police in the Police Station and, therefore they issued the cheques. Hence, the Respondents requested to absolve them from honouring the cheques. After considering the submission of the Respondents carefully, it has come to the notice of Maha RERA that there is no dispute between the parties that Rs.19,50,000/- is due from Respondents to the complainant and therefore the Respondents agreed to repay it by issuing post-dated cheques. The Authority does not think it fit to reopen the issue of Respondents’ liability as the Respondents themselves have arrived at the settlement to pay the Complainant Rs.19,50,000/-.

Maha RERA Observed: it is very unfortunate that even after arriving at the settlement and after issuing post-dated cheques, the Respondents want to avoid their liability to honour the cheques on one ground or the other. It also becomes clear from the facts and circumstances of the case that the matter was referred to the Police and then mostly in order to avoid the prosecution and arrest the Respondents agreed to repay the money.

Now they cannot take a somersault and contend that they were under coercion when they settled the matter. They have not complained to any superior officer of police that they were compelled and forced to settle the dispute and issue the cheques. Therefore, Maha RERA does not find any substance in this submission’ Maha RERA is of the opinion that this amounts to unfair practice and fraudulent act also. Section 7 of Act empowers the Authority to revoke the Registration project if such unfair practice or indulgence of the promoter in fraudulent acts are noticed. We feel another opportunity may be given to the Respondents to honour the cheques issued by them and to warn them that if they indulge in such unfair practice or fraudulent acts, Maha RERA shall not hesitate to take stern action against them including the action o{ revocation of registration of their project.

Society is a promoter for redevelopment project: MAHA RERA

By SRELJ Bureau Maharashtra Real Estate Regulatory Authority (Maha RERA) in a landmark order, protected homebuyer’s money invested in redevelopment project and directed the builder & society to pay a penalty of Rs 15 lakhs for violating norms of RERA Act, 2016. Maha RERA was hearing the complaint of Kaushal Haria, Girish Chheda & Meghna Visaria and Velbai Haria who had booked flats in New Sangeeta CHS Ltd, Vidyavihar (E) in May 2016. The said project was a redevelopment project between society and builder Valdariya Constructions. The society in December 2011 appointed a builder as a promoter with registered development agreement for sale. In the meantime, a dispute arose between builder and society and matter went to Arbitral Tribunal and the society terminated the development agreement executed with the builder. Authority in order said, “The termination of the development agreement executed between builder and society is after the commencement of RERA Act and this should have done with the permission of Maha RERA. Therefore, transferring the development rights is not valid as this project is registered with MahaRERA.” The arbitral allowed society for self redevelopment. The complainants were seeking interest for delayed project and handover the possession with a parking lot and all amenities. Society submitted the response before the court said, “The flat sold by the builder was illegal and it was sold below the market price. The complainants can seek a refund from the builder however they cannot seek an injunction against them.” Authority said under the provisions of section 2(zk) of the RERA Act, society is all the promoter of the project. Therefore, society is equally liable to the allottees who have booked their flats. Dr Vijay Satbir Singh, Member – 1/ Maha RERA ordered, “Considering the facts the complainants are the allottees of the project registered with Maha RERA and further directs society to join the complainants as its member within a period of 30 days from the date order.” Society is directed to give possession of their flats to the complainants by obtaining occupancy certificate, as the society has taken over the entire project for self-development as per the order of the arbitrator. In addition to this for violation of Section-15, the Maha RERA directs the builder and society to pay a penalty of Rs 15,00,000 to Maha RERA, the order said.