In this post we will discuss about RERA complaint against Manohar Infrastructure & Constructions wherein The authority held that the complainant is entitled to receive delayed compensation from the promoter which shall continue to be in her favor till the date of grant of an occupational certificate from the concerned department. The respondent shall hand over the possession of the property to the complainant including the delayed compensation till the grant of occupational certificate.
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Introduction
The real estate sector has always been considered as an unorganized sector governed by diverse state laws. However, there has always been a lack of transparency and accountability of promoters, developers, regulators, buyers in this sector. In 2016, the Government of India passed the Real estate regulation and development act 2016 to protect the interest of buyers and commercial real estate units by ensuring transparency, accountability, and uniformity. The ACT mandates compulsory registration by every developer with Real estate regulatory authority (RERA) including those that have not got completion certificates. The projects cannot be booked or sold by the developer without registering with the Real estate development Authority. It also states that the real estate agents are required to obtain a compulsory registration with RERA. RERA’s shall be established at each state within one year and till that time, other authorities will be specified for registration by the Promoter. The objective of the act is two folds. Firstly it is to ensure the sale of properties efficiently and transparently. For such a purpose, the registration of a property is made compulsory before the project is put to sale by the promoter. The second purpose of the act is to create an adjudicating mechanism to settle the disputes of the concerned people as fast as possible.
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M/s. Manohar Infrastructure & Constructions Pvt. Limited & Others
Naresh Jagwan v. M/s. Manohar Infrastructure & Constructions Pvt. Limited & Others
Facts
The complainant wants to seek a refund from the respondent for the amount paid by her to the respondent on the possession of a property. The complainant argues that there has been a delay of 5 years in giving her the possession of a property in Sonipat and the respondent still hasn’t offered the property to her. The petitioner also filed an alternative prayer demanding compensation for delayed delivery of possession.
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Issues Involved
The respondent argued that the EBA (Exclusive buyer agent) between was initiated before the law came into force. Therefore, the terms and conditions framed between the parties are only enforceable He further stated that the property could not be handed over to the respondent due to the pendency of an application for grant of Occupation certificate in the Director, Town & Country Planning department since 31.03.2017.
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Usually, in these scenarios, the authority directs the respondent to handover the property within 30 days after the complaint has been registered and pays the compensation to the complainant including delay compensation within 90 days. Hence, the property was to be delivered to the complainant according to the contract by 05.10.2015. The respondent had filed for an Occupational certificate on 31.03.2017 which was after the date specified in the contract. The respondent had earlier filed a statement and supplied its copy to the complainant where it is stated that the respondent should pay compensation to the complainant for the delay in handing over the possession of the property to the complainant till 10.01.2020.
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Section 11 of the RERA Act specifies the functions and duties of the promoter. Under the act, the promoter is mandated to create a log-in ID and password upon receiving once there is a grant for registration. Since it is not mentioned as the promoter of the register, it cannot be legitimized that the promoter will only accountable to a registered project and not an unregistered project. Subsection 4 of section 11 of the ACT states that the obligations of the promoter under the ACT shall extend much beyond the date of completion of the project. The obligation of delivery possession extends till the transfer of the property to the client. The obligations to rectify the flaws in the property extended to five years from the date of handing over the property to the client.
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Section 34(f) of the act embeds the authority to ensure whether the stakeholders follow their obligations as mentioned in the Act.
Section 71 of the act provides for an appointment for an adjudicating officer for settling the dispute under sections 12, 14, 18, and 19 of the Act.
Section 12 of the act provides compensation by the promoter to the one who has suffered any loss or damages due to incorrect and manipulative advertisement published by the promoter.
Section 14 of the Act prohibits the developers from making any changes to the property without the consent of the buyer and is obliged to adhere to terms and conditions of the plan of construction.
Section 18 of the act gives the authority to buyers to seek compensation from the developer for undue delay in construction or the development of the property.
Section 19 of the act states that every allottee is responsible to make payment under the agreement for the sale of an apartment within the time specified in the agreement.
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Judgment mentioned
Sanju Jain v. TDI Infrastructure
In this case, the complainant filed a petition under the Real estate Regulation and Development Act 2016, on the performance of an obligation by the developer in a buyer’s contract. The counsel for the developer/promoter argued that the promoter had already acquired the partial certificate attached and the project requires no registration under the act and the authority will have no jurisdiction to adjudicate the matter relating to such project of the promoter. The counsel for the defendant argued that since the complainant is seeking compensation including interest, the dispute should be settled by adjudicating officer and not the authority. The Haryana Real estate and Regulatory authority under section 11 of the RERA act held that the promoter is liable even after getting the completion certificate and non-registration with the Authority. The ruling will bring many unregistered projects without a completion certificate within the jurisdiction of RERA. It further held that the completion certificate does not discharge the obligation of the promoter from registering on the RERA.
Also Read- State Consumer Disputes Redressal Commission
Darshan Singh Gill vs M/S Manohar Infrastructure And … on 18 July, 2019
Judgment
The authority held that the complainant is entitled to receive delayed compensation from the promoter which shall continue to be in her favor till the date of grant of an occupational certificate from the concerned department. The respondent shall hand over the possession of the property to the complainant including the delayed compensation till the grant of occupational certificate. The respondent should also periodically inform the complainant of the status of the application for obtaining an occupational certificate.
ALSO READ- RERA PUNJAB COMPLAINT AGAINST LAND TWISTER HOMES KHARAR
Conclusion
Section 18 of the RERA act clearly gives the buyer the authority to seek refund from the developer for any delay in the development of the property or handing over the possession to the buyer. The section was referred by the authority in its ruling in favour of the complainant. The developer is obliged to perform certain duties and functions which are mentioned under section 11 of the RERA act. In failure of performing of those in its full capacity, the decision was made in favour of the allottee.
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This post is written by Rakshith Shetty.
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