C.M.S.A.No.38 of 2021

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 26.09.2024

PRONOUNCED ON : 20.11.2024

CORAM:

THE HONOURABLE MRS. JUSTICE J.NISHA BANU

AND

THE HONOURABLE MRS. JUSTICE R.KALAIMATHI

C.M.S.A.No.38 of 2021

and C.M.P.Nos.7284 & 4209 of 2021 & 15035 of 2022

M/s.KSM Nirman Private Limited,

Presently known as M/s.Olympia

Tech Park (Chennai) Private Limited,

No.1, SIDCO Industrial Estate,

Guindy, Chennai 600 032 ... Appellant

Vs.

Olympia Grande Apartments

Owner's Welfare Association,

Pallavaram Registration No.569/2016,

No.328, GST Road, Pallavaram,

Chennai 600 043 ... Respondent

PRAYER: Civil Miscellaneous Second Appeal filed under Section 100 of

C.P.C. to set aside the order dated 09.11.2020 passed in Appeal No.75 of

2019 on the file of the Tamil Nadu Real Estate Appellate Tribunal

(TNREAT) and confirm the order dated 06.11.2019 passed in C.No.327 of

2019 on the file of Tamil Nadu Real Estate Regulatory Authority, Chennai.

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For Appellant : Mr.Isacc Mohanlal, Senior Counsel

For Mrs.M.V.V.N.Sivanthy

For Respondent : Mr.S.R.Rajagopal, Senior Counsel

For Mr.Hari Radhakrishnan

******

J U D G M E N T

(Judgment of the Court was made by J. NISHA BANU, J.)

Challenging the order passed by the Tamil Nadu Real Estate

Appellate Tribunal (TNREAT) in Appeal No.75 of 2019, dated 09.11.2020,

the aggrieved respondent therein/Developer, has preferred the present Civil

Miscellaneous Second Appeal. The Tamil Nadu Real Estate Appellate

Tribunal, set aside the order in C.No.327/2019 dated 6.11.2019 and directed

the Regulatory Authority to dispose the complaint on merits.

2. The necessary facts leading to the filing of this appeal would run

thus:

2.1.The appellant herein, M/s.KSM Nirman Private Limited,

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presently known as M/s.Olympia Tech Park (Chennai) Private Limited,

commenced the project in the year 2012 (16 residential towers with 744

apartments and 1 commercial tower). On 26.04.2012, the appellant has

obtained the planning permit and also obtained the building plan approval

from CMDA, which is the competent authority. The appellant completed the

construction and obtained completion certificates in a phased manner in three

phases as stated below:

(i) For the 1

st

phase of 9 Blocks, the 1

st

Partial Completion

Certificate was issued by the competent authority CMDA

dated 13.05.2015;

(ii) For the 2

nd

phase LIG (2 blocks), the 2

nd

Partial

Completion certificate was issued by the competent

authority CMDA dated 06.11.2015;

(iii) For the 3

rd

phase of 7 blocks 3

rd

Partial completion

Certificate was issued by the competent authority CMDA

dated 15.02.2016.

The term "Partial" was used in the above Completion Certificates

because the completion of the project was in a phased manner as

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contemplated in the Explanation to Sub Section 2 of Section 3 of RERA Act,

read with Section 2 (q) thereof.

2.2. The apartments were handed over to the respective purchasers

in a phased manner, after completion of the phases during the period from

the years 2015 to 2016. The apartment purchasers created an Owners'

Welfare Association in the year 2016 (Olympia Grande Owners Welfare

Association)/ the respondent herein and registered it with the Registrar of

Societies vide registration certificate dated 23.11.2016.

2.3. The respondent Association took control of the common area

and its maintenance in June 2017 and it is now under the control and

maintenance of the Association since then. As far as the 17th tower

(Commercial) is concerned, a revised planning permission was obtained from

CMDA and the Project Completion Certificate for the entire project was

obtained on 06.12.2017.

2.4. Mr.Isacc Mohanlal, Senior Counsel, appearing on behalf of

Mrs.M.V.V.N.Sivanthy, learned counsel for the appellant would contend that

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the Real Estate (Regulation and Development) Act, 2016 (hereinafter

referred as 'RERA') was notified with effect from 26.03.2016, and so far as

the State of Tamil Nadu is concerned, it became operational from the date of

framing and notification of the Tamil Nadu Real Estate (Regulation and

Development Rules), 2017 with effect from 22.06.2017. As such, the main

contention of the learned Senior Counsel is that the said Act and the rules

which came into operation in Tamil Nadu from 22.06.2017 cannot operate in

respect of the Real Estate Projects which were completed on or before the

said date i.e. 22.06.2017, in as much as the projects in the present case (16

residential towers) came to be completed and handed over to the allottees on

the strength of Completion Certificates dated 13.05.2015, 06.11.2015, &

15.02.2016.

2.5. According to the learned Senior Counsel, registration for the

Real Estate Projects is mandatory under the Act only in respect of ongoing

projects and for "future projects, and not, in respect of the projects which are

already completed and received Completion Certificate as provided under

Section 3 (2) and the Explanation thereto.

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2.6. Meanwhile, the respondent Association has filed a complaint

before the Regulatory Authority, mainly for corpus fund and for certain

rectifications in the project. The entire corpus fund of Rs.2,18,07,755/-

drawn on HDFC Bank DD No.009329 dated 11.03.2021 was handed over to

the respondent Association. While so, after three years, in the year 2019, the

respondent Association has filed a complaint "FORM M' before the Tamil

Nadu Regulatory Authority under section 31 of the RERA Act. The

complaint was numbered as C.No.327 of 2019. The said application was

objected by the appellant by way of filing preliminary objection that the

complaint itself is not maintainable since the project was completed as early

as in the year 2015 and partial completion certificates were obtained on

13.05.2015, 06.11.215 and 15.02.2016 before the RERA notification. The

Authority, after hearing the submissions, rightly dismissed the complaint

vide order dated 06.11.2019.

2.7. Aggrieved by the said order, the respondent Association filed

an appeal before the Tamil Nadu RERA Appellate Tribunal and the case was

numbered as Appeal No.75 of 2019. The Appellate Authority allowed the

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appeal filed by the respondent Association, thereby setting aside the order

made in C.No.327 of 2019 dated 06.11.2019 with a direction to restore

C.No.327 of 2019 to file and dispose the complaint on merits within three

months. Aggrieved against the same, the appellant has preferred the present

Civil Miscellaneous second Appeal before this Court.

3. The main grounds raised by Mr.Isacc Mohanlal, Senior Counsel,

appearing on behalf of Mrs.M.V.V.N.Sivanthy, for the appellant are as

follows:-

3.1. RERA came to be published in gazette on 26.03.2016, when

Section 1 came into force. Section 2, Sections 20 to 39, Sections 41 to 58,

Sections 71 to 28, Sections 81 to 92 came into force on 01.05.2016,

Sections 3 to 19, 40, 59 to 70, 79 and 80 came into force on 01.05.2017 and

the Real Estate Act Tamil Nadu Rules 2017 came into force on 22.06.2017.

In the present case, admittedly the apartments were completed and handed

over to the owners by 2015 and there is no dispute. The Association did not

pray for registration of the project with RERA. Further, both the Authority

and Tribunal had confirmed that the project was completed much before the

Act and its regulations came into force.

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3.2. According to the learned Senior Counsel, the RERA

Appellate Tribunal has held that Section 71 dealt with power to adjudicate by

the adjudicating officer Under Sections 12, 14, 18 and 19 of the RERA Act,

and in this provision, a proviso clause was included in which, it has been

specifically contemplated that, any person, whose complaint in respect of

matters for compensation etc., is pending before the Consumer forum on or

before the commencement of this Act, he may, with the permission of such

forum, withdraw the complaint and file the same before the Adjudicating

officer under this Act, Section 79 dealt with bar of Jurisdiction. Therefore,

the provision contemplates that no civil court shall have jurisdiction to

entertain any suit or proceeding in respect of any matter which the authority

or the Adjudicating officer or the Appellate Tribunal is empowered by or

under the act to determine, and emphasised that the application itself as not

maintainable.

3.3. According to the learned Senior Counsel, Chapter -III,

Sections 11, 12, 14, 18 and 19 of the Act, start with, the Promoter shall, upon

receiving his login ID and Password under clause (a) of Sub Section (1) or

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under Sub Section (2) of Section 5, as the case may be, create his web page

on the website. That being so, according to the learned senior Counsel, the

Tribunal failed to consider its own finding that the project was already

completed and handed over. Therefore, it is very clear that the above sections

will come into play only when the project is registered and if the promoter

violates any of those sections, then penal provisions will follow.

3.4. The learned senior counsel further submits that in the present

case, the project was completed before the RERA Act came into force.

Therefore, the apartment owners have all the rights to approach the civil

court/consumer court for any grievances.

3.5. Moreover, Section 3 of the RERA Act has categorically

described when the registration of the projects is required and when not

required. Section 3 of the RERA Act, reads as under:

Section 3: Prior registration of real estate project with

the Real Estate Regulatory Authority:

1) No promoter shall advertise, market, book, sell, offer

for sale, or invite persons to purchase in any manner any

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plot, apartment or building, as the case may be, in any real

estate project or part of it, in any planning area, without

registering the real estate project with the Real Estate

Regulatory Authority Established under this act. Provided

that projects that are ongoing on the date of

commencement of this act and for which the completion

certificate has not been issued, the promoter shall make an

application to the authority for registration of the said

project within a period of three months from the date of

commencement of this Act.

Notwithstanding anything contained in Sub-Section 1, no

registration is required of the real estate project shall be

required.

(b) where the promoter has received a completion certificate

for a real estate project prior to the commencement of this

Act.

As per Section 3 (2) proviso it is very clear that the projects

already completed are not required to register with RERA. The present

project was completed in all aspects and a partial completion certificate was

obtained before the Act came into force. Therefore the impugned order is

liable to be set aside.

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3.6. Further, the learned Senior Counsel brought to the notice of

this Court that at the time of admission it was fairly committed to this Court

that the corpus fund collected from the individual apartment owners are kept

in a Fixed Deposit and the appellant would return the corpus fund amount

Rs.2,75,37,100/- to the respondent Association, and this Court recorded the

same and passed an interim order dated 04.03.2021 directing the appellant to

return the corpus fund. However, the appellant at a later stage found that they

had spent a sum of Rs.73,80,917/- towards various purposes of the

residential project from out of pocket, due to oversight, the same was not

brought before the notice of this Court at the time of admission.

Subsequently, the appellant has returned the undisputed Corpus fund a sum

of Rs.2,18,07,755/- drawn on HDFC Bank DD No.009329 dated 11.03.2021

to the Association after retaining a sum of Rs.66,51,083/- and the same has

been kept in a Fixed Deposit. Since there is a difference in the returning

amount, the appellant herein filed C.M.P.No.7284 of 2021 to modify the

order dated 04.03.2021. This Court has directed the Authority to hear the

parties and pass final orders in C.No.327 of 2019 but to keep the final orders

in a sealed cover till the disposal of this C.M.S.A.No.38 of 2021.

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Subsequently, the Authority heard the parties and passed final orders and

kept the same in a sealed cover.

3.7. The appellant herein is continuously maintaining the Sewage

Treatment Plant (STP) and incurring further expenditures and therefore, filed

C.M.P.No.247 of 2023 to direct the Association to reimburse a sum of

Rs.50,00,852/- to the appellant and further direct the respondent Association

to take over the STP maintenance henceforth. Since the monthly maintenance

charges were collected by the respondent Association from the individual

apartment owners, the respondent Association have to maintain the STP and

reimburse the amount spent by the appellant. The appellant had filed an

additional typed set of papers to bring to the notice of this Court that they

had totally spent a sum of Rs.1,38,35,774/- on account of STP maintenance.

3.8. The learned Senior counsel further relied upon the following

judgments:-

(a) Newtech Promoters and Developers Pvt Ltd., Vs State of

UP and others reported in 2021 SCC Online SC 1044;

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(b) ECGC Ltd vs Mokul Shriram EPC JV, reported in 2021

SCC Online SC 1044;

(c) Neelkamal Relators suburban Pvt Ltd.vs.Union of India

reported in 2017 SCC online BOM 9302;

(d) Macrotech Developers Ltd., vs. The State of

Maharashtra, registered as W.P.No (ST) No.1118 of 2021;

(e) Kusum Ignots and alloys Ltd., vs. Union of India-

reported in (2004) 6 SCC 254;

(f) State of Maharashtra vs. Kalir Koil Subramaniam

Ramasamy reported in (1997) 3 SCC 525;

(g) Commissioner of Income Tax, Vidarbha vs Smt.

Godaveri Devi Saraf-reported in 1997 SCC Online BOM

215;

(h) Shiv Kumar vs Union of India, reported in ILR 2014

KAR 2474;

(i) T.Rajakumari & Ors vs. Government of Tamil Nadu &

others, reported in AIR 2016 Mad 177;

(j) Farouk Irani vs The Deputy Collector, reported in

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MANU/TN/2655/2017; and

(k) Shri Ajay Kumar Gupta vs Adjudication Authority,

registered as Crl.OP.Nos.10497 and 10500 of 2017.

4. Per contra, Mr.S.R.Rajagopal, learned Senior Counsel for

Mr.Hari Radhakrishnan, appearing on behalf of the respondent Association

made the following submissions:-

4.1. The appellant had completed the construction of the residential

units, comprising 16 towers, by the year 2015 and partial completion

certificates were obtained on 13.5.2015, 6.11.2015 and 15.2.2016, which

were much before the coming into force of the provisions of RERA, 2016,

whereas, the term partial completion certificate has not been

provided/recognised under RERA Act. Sec.2(q) defines completion

certificate.

4.2. The term partial completion certificate cannot be equated to

completion certificate as defined under Sec.2(q) of the Act. Even though

there is no provision either under the Development Regulations or under any

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other law for issuance of a partial completion certificate, the authorities

issued partial completion certificate in respect of project where construction

is in phases. When the promoter registers each phase as a project separately,

then only a completion certificate would be issued and not a partial

completion certificate. A partial completion certificate is issued only in

respect of integrated projects, where construction is in phases, for enabling

availing civic facilities and electricity.

4.3. In order to term the project as an integrated project, the project

includes 17 towers consisting of A (9 Towers), B (3 Towers), C (1 Tower), D

(1 Tower), E (1 Tower) and F (2 Towers) and the appellant had applied for a

common planning permit for construction of all the 17 towers and

accordingly, CMDA granted permission vide Permit No.7105C/PP/MSB-

IT/28 A to T/2012 dated 26.04.2012 for construction of 17 residential

towers. It is submitted that all the 789 owners have paid for the UDS for the

total common area and has right and privilege to use the common area for the

common purposes. Further, the Appellant had also obtained Environmental

Clearance No.SEIAA/TN/ F-453/EC/8(a)/145/2011 dated 16.04.2013 and

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amendment No. SEIAA/TN/ E453/KPM/8(a)/EC-145-Amdt/2011 dated

24.02.2015 for construction of 17 towers as an integrated project.

Environmental Clearance (EC) to construct 744 dwelling units in 6 blocks

having 17 towers and a club house. On 16.04.2013, the Environmental

Clearance was also obtained for 17 towers. This is evident from the fact that

the project name, for the integrated development is "Olympia Grande". There

is one entry and one exit for all the 17 towers/apartments. All the 789

allottees have UDS in the total project area of 6.36 acres. Therefore, the

project is an integrated project, though construction was in phases.

4.4. It is only as the construction was in phases in an integral

project with one approval, for the sake of convenience, the appellant had

obtained partial completion certificates on 13.05.2015, 06.11.2015 and

15.02.2016 as and when certain towers were built, so that the units in these

buildings could become habitable and so that the appellant could make sales

of the said dwelling units. However, these partial completion certificates do

not indicate that the entire project, as approved, has been developed

according to the sanction plan, layout plan and specifications as approved by

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the competent authority and further it is stated that the structural stability of

the building has not been tested.

4.5. It is further submitted that the appellant had applied for a final

completion certificate for the entire project only on 31.05.2017. It is

submitted that in pursuance of the said application, the CMDA issued a

deficiency notice dated 20.06.2017 pointing out various deficiencies.

Thereafter, a final completion certificate was issued on 06.12.2017 for the

entire project. Therefore, it is apparent that as on coming into force of RERA

Act, 2016, final completion certificate was not even applied for.

4.6. The learned Senior Counsel further submitted that the

appellant applied for a revised planning permission on 09.08.2017 to convert

the usage of 17th tower from residential to restaurant cum service apartment.

Therefore, it is submitted that the project developed by the appellant,

construction put up in phases, would be covered under the definition of

'ongoing project' as defined in Rule 2(h) of the Tamilnadu Real Estate

(Regulation and Development) Rules, 2017.

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4.7. Form A' appended to the TNRERA Rules, 2017, is the format

for making an application for registration of a project under RERA Act,

2016. Paragraph (A) of the said form stipulates that, where the project is

supposed to be developed in phases, an authenticated copy of the planning

permission, building permit/building sanction plan and partial completion

certificate for each of such phases has to be submitted for registration.

Therefore, the TNRERA Rules, 2017 clearly contemplates that even where a

project in developed in phases, a builder is required to register the project

under RERA by enclosing copies of partial completion certificate obtained

for each of such phases.

4.8. The term "ongoing project has not been so defined under the

Act while the expression "Real Estate Project is defined under Section 2 (zn)

of the Act, which reads as under:-

2(zn)-real estate project means the

development of a building or a building consisting of

apartments, or converting an existing building or a part

thereof into apartments, or the development of land into

plots or apartments, as the case may be, for the purpose

of selling all or some of the said apartments or plots or

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building, as the case may be, and includes the common

areas, the development works, all improvements and

structures thereon, and all easement, rights and

appurtenances belonging thereto".

4.9. As per the legislative mandate, the Act is intended to apply

even to the ongoing real estate projects. The expression "On Going Project

has been defined under Rule 2(h) of the Tamil Nadu Real Estate (Regulation

and Development) Rules, 2017 and projects, where application for

completion certificate has been made after the date of coming into force of

sub-section (1) of section 3 of the Act, then it would be termed to be an

'ongoing project'. Therefore, as per the scheme of Act 2016 in particular,

Section 3 says all ongoing projects that commence prior to the Act and in

respect to which completion certificate has not been issued are covered under

the Act. The legislative intent is to make the Act applicable, not only to the

projects which were yet to commence after the Act became operational, but

also to bring under its fold the ongoing projects and to protect from its

inception the inter se rights of the stake holders, including allottees/home

buyers, promoters and real estate agents, while imposing certain duties and

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responsibilities on each of them and to regulate, administer and supervise the

unregulated real estate sector, within the fold of the real estate authority.

4.10. The learned Senior Counsel further submitted that on a

harmonious reading of TNRERA Rules, 2017 and the definition of

'completion certificate' mentioned in Section 2(q) of the Real Estate

(Regulation and Development) Act, 2016, it can be safely concluded that the

completion certificate that is required to be obtained by a builder can only

mean a final completion certificate, which is issued after ascertaining

whether the entire real estate project has been completed with the required

roads, amenities etc. The builder is relived from all his obligations and

liabilities only after the issuance of the final completion certificate. In the

present case on hand, the final completion certificate was applied only on

31.05.2017.

4.11. The learned senior counsel for the respondent Association

further submitted that the appellant had applied for a final completion

certificate on 31.05.2017 for the above project and in pursuance of the said

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application, CMDA had issued the Final Completion Certificate on

06.12.2017. It is submitted that RERA Act, 2016 and the TNRERA Rules,

2017 make a distinction between partial completion certificate and final

completion certificate. This is evident from the fact that the application

prescribed in Form 'A' for registration of the project prescribed "partial

completion certificate" as one of the documents to be submitted along with

the application filed for registration under Rule 3(2) of TNRERA Rules,

2017. It is submitted that Completion certificate can only be one and it has to

be issued finally after CMDA is satisfied that the builder has complied with

the conditions of the planning permission and has constructed the building in

accordance with the permission given.

4.12. Further, it is submitted that if these so called partial

completion certificates were sufficient, there would be no necessity for the

appellant to apply for the completion certificate once again in December,

2017. Therefore, the Appellant, understanding and accepting the position,

had thus applied for completion certificate on 31.05.2017 and thereafter

applied to CMDA for revision of planning permit in August, 2017. The

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above facts clearly establish that as on the date of coming into force of

Section 3 of RERA, 2016, the appellant did not have a valid completion

certificate. It is to be noted that the application for final completion

certificate was submitted before obtaining plan permit and completion of

project and that too, was rejected by CMDA vide their order dated

21.06.2017. This further substantiates that the project was an ongoing

project' on the date of coming into force of RERA Act, 2016.

4.13. Further, it is argued that the CMDA website clearly states

that the appellant had applied for a revised planning permission and the same

was granted by the CMDA, vide revised planning permission

No.C/PP/MSB/34(A to D)/2017 and planning permit No.11162 in letter

No.C3(S)/1261/2016 dated 9.8.2017. So, it is clear that a revised planning

permission was only given to the appellant on 9.8.2017. Therefore, the

construction was 'ongoing' on the date of coming into force of Section 3 of

RERA, 2016.

4.14. It is further submitted that after obtaining the revised

planning permission in August, 2017, the appellant continued with their

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construction. However, on 07.08.2023, CMDA issued a notice to the

appellant stating that there are several defects/deviations/violations with

regard to the construction put up by the appellant and disapproved the

revised planning permit application submitted by the appellant on

12.09.2022. Therefore, it is apparent that obtaining of the completion

certificate or even the partial completion certificate has no significance if the

construction is not put up as per the approval given.

4.15. It is submitted that once it is established that the construction

was completed only in December 2017, it can be safely concluded that the

appellant has failed to register themselves under Section 3 of the RERA,

2016. The first proviso to Section 3(1) of RERA, 2016 states that, 'projects

which are ongoing on the date of commencement of this Act and for which

completion certificate has not been issued are liable to be registered within

a period of three months from the date of the commence of the Act'. In the

present case, the completion certificate was issued by the appellant only on

5.12.2017. Therefore, the appellant ought to have registered themselves

under Section 3(1) of RERA, 2016 within a period of three months from the

date of commencement of the Act ie. within three months from 01.05.2017.

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4.16. The learned Senior Counsel also invited the attention of this

Court to Environmental Clearance Report dated 30.10.2017 issued by the

Ministry of Environment, Forest and Climate Change vide F.No

EP/12.1/SLAA/2017-18/13/TN/1731, which points out large number of

violations committed by the appellant, which till date stands non-complied.

Besides, the Tamil Nadu Pollution Control Board has called upon the

appellant to pay an Environmental Compensation of Rs.7,11,60,000/- for

failure to obtain consent as per the provisions of Section 25 of the Water Act,

1974 and Section 21 of the Air Act, 1981 Tamil Nadu Pollution Control

Board (TNPCB), vide their proceedings dated 21.12.2020 and 12.01.2021,

the Sewage Treatment Plant (STP) is not operational and is also not being

maintained. This finding has been reiterated in the Inspection Report dated

14.02.2023 of the TNPCB. The Tamil Nadu Fire and Rescue Services

Department has inspected the building for issuance of Fire License and

issued notice dated 20.05.2020 vide K.Dis. No. 15551/C1/2019 informing

several defects. Further, the Highways Department has issued a notice dated

02.03.2021 stating that the ramp contracted for entry into the apartment

complex is encroaching the service road which leads to the Pallavaram

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Railway flyover and also causing hindrance to the storm water drainage.

Therefore, there are several defects/deviations/discrepancies in the

construction put up by the appellant and mere possession of a "partial

completion certificate" will not absolve the appellant from mandatorily

registering under the provisions of RERA.

4.17. The learned Senior Counsel relied on the judgment made by

the Division Bench of this High Court in the case of Subashini Tulasiram

Vs. SPR & RG Constructions Pvt. Ltd. (order dated 15.09.2020 passed in

CMSA No.22/2019), wherein it has been held that non-obtaining of prior

environment clearance will vitiate the completion certificate obtained by the

builder in the eye of law, since the said certificate cannot be considered to be

compete and final. This Court further held that an environment clearance

certificate is mandatory, and obtaining of post-facto clearance would not

legalize the construction put up by the Builder. In the present case, the

construction was put up without obtaining prior Consent to Operate and the

appellant first issued with two show cause notices dated 17.12.2019 under

the Water Act, 1974 and under the Air Act, 1991. Consequently, the

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appellant was imposed with a liability of Rs.7,11,60,000/- as environment

compensation and the consent was finally given only on 07.12.2020, which

is much after the putting up of the construction. Therefore, a post-facto

approval given to the appellant would not legitimize or validate the partial

completion certificates issued to the appellant in the year 2015.

4.18. Learned Senior Counsel further relied on the case of SARE

Shelters 16 Projects Pvt. Ltd Vs. SARE Squires & Anr. (Order dated

16.02.2021 passed in CMSA No 27/2020) -, wherein it has been held that a

completion certificate, which does not disclose whether the building was

constructed as per the norms and whether the amenities were provided as per

the specification cannot be considered to be valid completion certificate. In

paragraph 24 of the said order, this Court held that a completion certificate

issued in the year 2014, without fulfilling the requirements and conditions

stipulated in the Town and Country Planning Act cannot be considered as a

valid completion certificate for the purpose of grant of exclusion from

registration under Setion3(ii) of RERA Act, 2016. The said decision squarely

applies to the present case. The large scale deficiencies and defects noted by

CMDA would establish that the project has not been completed till date.

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4.19. The objects and reasons for enactment of The Real Estate

(Regulation and Development) Ac, 2016 states as follows:

"An Act to establish the Real Estate

Regulatory Authority for regulation and promotion of

the real estate sector and to ensure sale of plot,

apartment or building, as the case may be, or sale of

real estate project, in an efficient and transparent

manner and to protect the interest of consumers in the

real estate sector and to establish an adjudicating

mechanism for speedy dispute redressal and also to

establish the Appellate Tribunal to hear appeals from

the decisions, directions or orders of the Real Estate

Regulatory Authority and the adjudicating officer and

for matters connected therewith or incidental thereto."

Therefore, RERA Act, 2016 provision was intended to a single

umbrella to address all the grievances of home buyers, irrespective of the fact

whether the real estate project was or was not required to be registered in

terms of Section 3 of the Act.

4.20. Therefore, it is submitted by the learned Senior Counsel for

the respondent Association that the adjudicatory mechanism provided under

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C.M.S.A.No.38 of 2021

RERA will also apply to projects, where completion certificate has been

obtained prior to coming into force of the Act. In support of the above view,

reliance is placed on the decision rendered by the Real Estate Appellate

Tribunal, Punjab in the case of Silver city Construction Ltd Vs. State of

Punjab (Order dated 24.07.2019 passed in Appeal No.49/2018] - and the

decision of the Haryana Real Estate Appellate Tribunal in the case of Emaar

MGF Land Ltd Vs. Simmi Sikka, [Order dated 03.11.2020 passed in Appeal

Nos.52 & 64 of 2018.

4.21. The learned Senior counsel appearing for the respondent

Association further relied upon the following judgments:-

(a) Subashini Thulasiram vs. SPR & RG Constructions

Pvt. Ltd order dated 15.09.2020 passed by this Court in

CMSA No. 22 of 2019;

(b) Silver City Construction Ltd vs. State of Punjab order

dated 24.07.2019 passed by the Real Estate Appellate

Tribunal, Punjab SAS Nagar (Mohali);

(c) Emaar MGF Land Ltd vs. Simmi Sikka dated

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C.M.S.A.No.38 of 2021

03.11.2020 passed by the Haryana Real Estate Appellate

Tribunal;

(d) Lucknow Development Authority vs. Uma Shankar

Dubey reported in 2020 (SCC) Online RERA (UP) 10;

(e) Securities and Exchange Board of India vs. Ajay

Agarwal reported in MANU/SC/0137/2010;

(f) Bombay Anand Bhavan Restaurant vs. Deputy

Director, ESI Corporation reported in

MANU/SC/1596/2009;

(g) Bharat Singh vs. Management of New Delhi

Tuberculosis Center, New Delhi reported in

MANU/SC/0322/1986;

(h) M3M India vs. Dr. Dinesh Sharma dated 04.09.2019

passed by the High Court of Delhi in CM(M) No. 1244 of

2019 & CM Appl. 38052-38053 of 2019;

(i) Imperia Structures Ltd vs. Anil Patni and ors. Reported

in MANU/SC/0811/2020; and

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C.M.S.A.No.38 of 2021

(j) Ireo Grace Realtech Pvt. Ltd vs. Abhishek Khanna and

ors. reported in MANU/SC/0013/2021;

5. Heard the learned Senior Counsel appearing for the appellant

and the respondent and perused the materials placed before this Court.

6. The legislative intent behind the Act is to bring the disputes and

grievances regarding the Real Estate sector under the single roof namely

RERA Act. Therefore, it is not specifically provided where the RERA Act is

applicable to the projects which were completed before the Act came into

force or applicable only to the projects which are ongoing on the date of

commencement of the Act.

7. As per Section 14(3) of RERA Act, the grievance of the

buyers/allottee relating to such development, if any, is brought to the notice

of the promoter, within a period of five years from the date of handing over

possession, it shall be the duty of the promoter to rectify the same. In this

provision, the legislature specifically mentioned the period of limitation as

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five years. In Section 11 (4) (a) proviso clause, the responsibility of the

promoter extended beyond the period of five years as contemplated in

section 14(3) and shall continue even after the conveyance deed of all the

apartments, plots or buildings, as the case may be, to the allottees are

executed. So even after all the apartments were handed over and the sale

deeds executed, for the structural defect or any other defect the promoter is

liable and the responsibility is fixed without any limitation. The above said

provisions are contemplated in this Act since it is a welfare legislation not

only for the allottees but also for the promoters. Therefore, the question of

maintainability does not arise and the same has been clearly addressed by the

Appellate Authority by holding that the complaint raised by the respondent

Association is maintainable before the Regulatory Authority since there is no

other ways and means for the respondent Association to redress their

grievance.

8. Section 71 proviso clause and Section 79 of the RERA Act is

intended to redress the grievances of the home buyer or promoter under the

provisions of the RERA Act. The respondent Association has sought relief

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C.M.S.A.No.38 of 2021

on the basis of the duties and responsibilities of the promoter, which is

contemplated under Section 11 of the RERA Act and for the said relief, the

respondent Association cannot approach the Civil Court since there is a

specific bar under Section 79 of the RERA Act. Without considering the

above, the Regulatory Authority has rejected the claim made by the

respondent Association by dismissing the complaint as not maintainable,

which has been rightly answered by the Tribunal and ordered as

'maintainable', thereby allowing the appeal and setting aside the order of the

Regulatory Authority in C.No.327 of 2019 dated 06.11.2019, which does not

warrant the interference of this Court. Accordingly, the order passed by the

Tribunal stands confirmed and the Regulatory Authority is directed to restore

C.No.327 of 2019 to file and dispose of the complaint within a period of two

months from the date of receipt of a copy of this judgment.

9. Accordingly, the Civil Miscellaneous Second Appeal stands

dismissed. No costs. Consequently, connected miscellaneous petitions stand

closed.

(J.N.B., J.) (R.K.M.J.,)

20.11.2024

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C.M.S.A.No.38 of 2021

Internet : Yes/No

Index: Yes/No

Speaking Order: Yes/No

sts

To:

1) The Tamil Nadu Real Estate Appellate Tribunal (TNREAT), Chennai

2) Tamil Nadu Real Estate Regulatory Authority, Chennai

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C.M.S.A.No.38 of 2021

J.NISHA BANU.,J.

and

R.KALAIMATHI , J.

sts

Judgment made in

C.M.S.A.No.38 of 2021

Dated:

20.11.2024

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