V26- Complaint before RERA against unregistered Real Estate Project | Prashant Kanha

After the commencement of Real Estate (Regulation and Development) Act, 2016, the buyers of the real estate, out of unsold inventory where the promoter has obtained completion certificate prior to commencement of the Act, cannot be left in a lurch in case possession is not handed over or conveyance deed is not made as per the agreement for sale, defective land title, structural defect and workmanship defects, etc. Whenever sale of real estate takes place after the commencement of Act of 2016 and a project qualifies to be a real estate project as per the definition given in the Act and the promoter is covered in the definition of promoter as given in the Act, then a complaint in respect of matters where this Act casts certain obligations upon the promoter can be made to the Regulatory Authority. There cannot be two different authorities to be approached for similar types of complaints. The registration certificate of real estate project is valid from the date of registration and it expires as soon as the project is completed, and the completion certificate is issued i.e. the time period declared by the promoter in accordance with section 4(2) (??) (C) for completion of the project. Hence, even after the expiry of the validity of the registration, there are large number of obligations that are to be discharged by the promoter. Hence, in respect of those obligations complaints of projects registered or exempted irrespective of the fact whether the sale has taken place before the commencement of the Act or after commencement of the Act can be made to the Regulatory Authority and such projects are squarely covered in the ambit of the Real Estate Regulatory Authority. In nutshell, this Act primarily protects the interest of the consumers in case of sale of real estate.

From the plain reading of section 3, it is evident that the projects for which the completion certificate has been issued prior to commencement of this Act have only been exempted from prior registration, if the proviso to section 3(1) is read with section 3(2)(b). Section 3(2) provides for categories of projects where no prior registration shall be required. This section 3(2)(b) specifically provides that no prior registration of the real estate project shall be required where the promoter has received a completion certificate for a real estate project prior to commencement of this Act, i.e. prior to 01.05.2017.

There is no need to re-define ongoing project, since all projects where completion certificate has not been issued are ongoing projects and completion certificate issued by the competent authority on or before 30.04.2017 is the conclusive proof of the fact that the project is complete, and it is not “on-going”.

On the basis of the aforesaid analysis, we are of the considered view that Act, 2016 mentions nowhere that it is applicable only for registered projects. The Act, 2016 does not provide certain categories of projects that are not required to be registered but these are well within the ambit of the Act. These projects mentioned in Section 3(2) have been taken out of the prior registration requirement, but not out of the purview of other provisions of the Act. The provisions regarding registration and obligation during registration are applicable only for the registered projects.

Above extracts are from the case: Lucknow Development Authority v. Uma Shankar Dubey, 2020 SCC OnLine RERA (UP) 10


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