JURISDICTION OF RERA AFTER COMPLETION CERTIFICATE – Analysis on Suresh V. Swamy vs L&T Judgment
Author
Adv. Ajit R. Powar
Updated on 29.06.2023
Does RERA continue to have Jurisdiction over the project after the Occupancy / completion certificate is issued for the project registered with RERA ?
Can a person file a complaint for possession of a flat and compensation for delayed possession with the Real Estate Regulatory Authority after Occupancy / completion certificate is issued to a project registered under RERA ?
The answer to both the questions above is ‘Yes’ the Real estate regulatory Authority does have the Jurisdiction. RERA is still at its nascent stage and more circulars in the form of clarifications are required from the Authority.
Many hold the view that the jurisdiction of RERA is coextensive with the registration of the project. In other words, the Real Estate Regulatory holds jurisdiction till the registration of the project exists, and therefore after the project receives Occupancy / completion certificate an allottee cannot file a complaint for possession of the flat or for compensation for delay in the possession under section 18 of RERA which is a misconception and has deterred many allottees from filing complaints. In short, you can file a complaint with the Regulatory Authority / Adjudication officer even after the receipt of the occupancy / completion certificate against the promoter when it comes to failure on his part in respect of his functions & duties and obligations under the act.
The Real Estate Regulatory Authority in Maharashtra in 2019 in the case of Suresh V. Swamy vs L&T had the occasion to deal with the question of whether its jurisdiction is co-extensive with the registration of the project or not, in other words, Jurisdiction of RERA after completion of the project registered with it and the Authority has finally held that its jurisdiction is not co-extensive with the registration of the project and travels beyond the stage of receipt of occupancy / completion certificate. The Authorities decision covers other important jurisdictional issues but I restrict myself to the topic under discussion which has opened the vault for many to approach the authority under RERA.
The Real Estate Regulatory Authority (in short the authority), before dealing with other sections of RERA which support the jurisdiction of RERA after completion certificate, referred to section 5(3) of RERA which provides ‘that the registration granted under this section shall be valid for a period declared by the promoter under sub-clause (C) under Clause(I) of subsection 2 of section 4 for completion of the project or phase thereof, as the case may be’. The provision does not show that on receipt of occupancy certificate the registration of the project shall lapse. The reasoning of the Authority in simple words would be that at any cost the Jurisdiction of authority extends up to the date of completion declared by the promoter under section 4(2)(I)(C) even though he may get the occupancy certificate before the declared date.
Further as per the Authority even if it is taken for granted that the registration lapses on completion of the project, the Authority does not lose its jurisdiction. The Authority took support from sections 7,8, 14(3), 17, 34 & 31 for arriving at the conclusion that the Real Estate Regulatory Authority does not lose its jurisdiction. Let us deal with these sections. Now let us look at what these sections prescribe –
Section 7 & 8 – Under section 7 the Authority can cancel or revoke the registration of a project and while it does so, section 8 casts an obligation on the Authority to carry out the remaining development work on such lapse or revocation. This means the regulatory power of the Authority continues after the lapse or revocation of the registration.
Section 14(3) – provides that in case of any structural defect or any other defect in workmanship, quality or provision of services or any other obligations of the promoter as per the agreement for sale relating to such development is brought to notice of the promoter by the allotted within five years from the date of handing over the possession, the promoter is duty-bound to rectify it. On a bare reading of the section, it is clear that it provides for invoking the section after receiving possession of the property and implies such invoking even after receiving occupancy / completion certificate as per local law Maharashtra ownership Flats Act and RERA. It, therefore goes without saying that the Authority, in a case falling under section 14(3), will be exercising jurisdiction post possession or after the project or phase thereof receives occupancy / completion certificate.
Section 17 – requires the promoter to execute a registered conveyance deed in favour of the allottee of the apartment and register a conveyance deed in favour of the society regarding undivided proportionate title in the common areas within the time period prescribed under the section and the Maha Rules after receiving the occupancy certificate. Here again, the Authority will be exercising jurisdiction after the occupancy / completion certificate is issued for the project or phase thereof.
Besides if we look at Section 34 (f) of RERA it is the function of the Authority to ensure compliance of the obligations cast upon the promoters, the allottees and real estate agents under this Act and rules and regulations made thereunder; Thus if the promoter fails to discharge his duties imposed upon him by the Act, then, the Authority has jurisdiction to rectify it. Now the compliance of these obligations is not limited to the period till the project gets occupation / completion certificate. eg. promoter not handing over possession even after receiving occupancy certificate or allottee not taking possession even after receiving occupancy certificate by not making balance payment, promoter not maintaining essential services at reasonable charges till the taking over of maintenance by the association of allottees, promoter not enabling the formation of association or society or cooperative society etc. In such situations The Authority as the Regulator will have to step in to perform its function of rectifying the wrong even after the project receives a completion certificate.
Besides as per the Authority under Section 31 any aggrieved person can file a complaint with the Authority and Adjudicating officer against any promoter, allottee, or real estate agent if they violate or contravene any provisions of RERA or Rules and Regulations framed therein. Therefore if a cause of action arises which gives a right in favour the aggrieved person and creates obligation or liability on promoter, allottee, or real estate agent as per the provisions of the Act, the Authority retains its jurisdiction because section 79 of the Act bars the jurisdiction of the civil court from entertaining 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. Therefore the Jurisdiction of the Authority is not lost only because of receipt of occupancy certificate or on completion of the project or when the possession is offered. To add to the Authoritys views “ there cannot be a right without a remedy”.
The contents of this article are the views and opinions of the author on the subject matter. The readers are expected to take expert advice based on the facts and circumstances of their case.
Copy rights reserved.
