Read Order: M/s Experion Developers Private Limited v. State of Haryana and Others

Monika Rahar 

Chandigarh, May 05, 2022: Annulling the petitioner’s claim that it was not required to register its project with the Haryana RERA and was not amenable to the jurisdiction of the Authority because it obtained an occupancy certificate before May 1, 2017 (when Section 3 of the RERA Act, 2016 came into force), the Punjab and Haryana High Court has held that the Act carves out a difference between a ‘completion certificate’ and an ‘occupancy certificate’.

The Bench of Justice Amol Rattan Singh and Justice Lalit Batra held, “… with a completion certificate still not having been obtained, simply obtaining of an occupancy certificate or having applied for such certificate…, 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.”

By the instant petition, the petitioner sought the issuance of a writ in the nature of ‘certiorari’ setting aside the proceedings pending before the Haryana Real Estate Regulatory Authority, Gurugram, (the Authority) in a complaint case. The petition also sought the 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

Apart from assailing the order of the Authority on merits, the petitioner’s counsel has raised a basic issue on the jurisdiction of that Authority to pass the orders, while contending that on March 02, 2017, the petitioner received an occupancy certificate in respect of at least that part of the project as the second and the third respondents were concerned with, and that since the RERA Act come into effect (as regards Section 3 thereof) only from May 01, 2017, the project was 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. 

It was further argued that in light of the above 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. 

Also, while referring to Rules 2(1)(n) and 2(1)(o) of the Haryana Real Estate (Regulation and Development) Rules, 2017, the Counsel argued that the petitioner already applied for and obtained an occupation certificate in terms of the Haryana Building Code, 2017, prior to May 01, 2017, thus, there was no requirement at all to get itself registered with the Authority, it thereby being outside the purview of its jurisdiction.

On the contrary, the Counsel for the Authority, while highlighting the anomaly between Section 3(2)(b) of the Act of 2016 and the aforesaid Rules of 2017, submitted that Section 3(2)(b) provides that it is only after a ‘completion certificate’ is 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 was very much existent qua the project.

Also, the Counsel contended while relying on the Supreme Court that whenever there is an anomaly in any rules, which is contrary to the provisions of the parents act from which the rules emanated, then the provision of the Act would govern the issue and not the anomaly contained in the Rules promulgated under that very Act. 

The Court at the very outset expressed its agreement with the case advanced by the petitioner’s counsel. Further, from a perusal of the definitions of the terms “completion certificate”, “occupancy certificate ” and “real estate project”, the Court opined that 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. May 01, 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, the petitioner would not be considered to be outside the purview of the jurisdiction of the respondent Authority. 

Therefore, the Bench asserted that if the petitioner was aggrieved in any manner by the impugned orders passed on the merits, it could avail the remedy of appeal before the Tribunal constituted under the said Act. 

Also, while addressing the argument of the petitioner’s counsel and the rebuttal by the counsel for the Authority, the Court observed that as regards the question of 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 was 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. 

With the aforesaid observations, the petition was dismissed, with the petitioner left to avail of its remedy before the appellate authority under the Act.

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