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Merely Obtaining 'Occupancy Certi몭cate' Before S.3 RERA

Came Into Force Would Not Oust Jurisdiction Of Regulatory
Authority: Punjab & Haryana HC
Zeb Hasan 3 May 2022 7:15 PM

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The Punjab and Haryana High Court recently observed that obtaining of an₹ occupancyX
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certi몭cate will not render anyone to be outside the purview of the jurisdiction of the State
Real Estate Regulatory Authority.

Justice Amol Rattan Singh observed:

"There being a difference carved out in the Act itself as to what is a completion certi몭cate
and an occupancy certi몭cate, unless the petitioner had obtained a completion certi몭cate for
the project in question, prior to the date that Section 3 of Act came into effect, i.e.
01.05.2017, it was necessarily required to get itself registered with the respondent
authority; but with a completion certi몭cate still not having been obtained, simply obtaining
of an occupancy certi몭cate or having applied for such certi몭cate in terms of the Haryana
Building Code, 2017, 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."

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In the present matter the petitioner, M/s Experion Developers Private Limited, had sought
issuance of a writ in the nature of 'certiorari' setting aside the proceedings pending before
the Haryana Real Estate Regulatory Authority, Gurugram, in a Complaint Case. It further
sought 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.

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The petitioner raised a basic issue on the jurisdiction of that Authority to pass the orders,
with the contention being that the petitioner having received an occupancy certi몭cate in
respect of at least that part of the project as respondents no.2 and 3 would be concerned
with, on 02.03.2017, and the RERA Act having come into effect (as regards Section 3
thereof) only from 01.05.2017, the project has 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.

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Further, 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.

Counsel for petitioner basically argued that the petitioner having already applied for and
obtained an occupation certi몭cate as referred to above in terms of the Haryana Building
Code, 2017, prior to 01.05.2017, there was no requirement at all to get itself registered with
the Authority, it thereby being outside the purview of its jurisdiction.

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Counsel for Haryana Real Estate Regulatory Authority submitted that there is an obvious
anomaly between Section 3(2)(b) of the Act of 2016 and the aforesaid Rules of 2017, as
Section 3(2)(b) reads to say that it is only after a completion certi몭cate has been 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 certi몭cate and not a completion certi몭cate,
necessarily it was required to get its project registered and therefore the jurisdiction of the
Authority is very much existent qua the project.

After hearing counsels on both sides and referring to the de몭nition of occupancy certi몭cate
and completion certi몭cate the court observed that simply obtaining of an occupancy
certi몭cate or having applied for such certi몭cate in terms of the Haryana Building Code,
2017, we would not consider the petitioner to be outside the purview of the jurisdiction of
the respondent Authority.

At this juncture Advocate for the Haryana Real Estate pointed out that obviously an
occupancy certi몭cate is issued in respect of any part of a project as is ready for such
occupation, with a completion certi몭cate to be issued only upon the entire project being
fully completed and therefore the parameters as contained in section 2(q) of the Act cannot
be read to be pari materia with those provided in the aforesaid provision of the Building
Code, especially as Section 89 of the Act stipulates that it shall have an overriding effect
over any other law in force.
The Court referred to explanation of Section 3 that stated as follows:

"Explanation.—For the purpose of this section, where the real estate project is to be
developed in phases, every such phase shall be considered a stand alone real estate
project, and the promoter shall obtain registration under this Act for each phase separately"

Counsel for petitioner argued that since, even for the purpose of Section 3, each phase of a
project is to be considered as a stand alone real estate project, the phase in question as
respondents no.2 and 3 would be concerned with, having been completed by the petitioner,
at least that part of the project would not be required to be registered.

"As regards that factual aspect and speci몭cally with regard to as to 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 certi몭cate for any particular phase as has been
completed (if so), is to be treated to be a completion certi몭cate in terms of Section 2(q) of
the Act, is left to the appellate authority under the Act to decide on merits, keeping in view
of course the judgement of the Supreme Court in M/s Newtech Promoters and Developers
(supra), and any other law laid down on the subject." Court said.
In view of the above, the petition was dismissed.

Case Title: M/s Experion Developers Private Limited vs. State of Haryana and others

Click Here To Read/Download Order

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TAGS
#PUNJAB AND HARYANA HIGH COURT  OCCUPANCY CERTIFICATE 

HARYANA REAL ESTATE REGULATORY AUTHORITY  REAL ESTATE (REGULATION AND DEVELOPMENT) ACT 2016 

JUSTICE AMOL RATTAN SINGH  JUSTICE LALIT BATRA 

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