Requisites for valid Offer of Possession.

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Validity of offer of possession: It is necessary to clarify this concept because after valid and lawful offer of possession, liability of promoter for delayed offer of possession comes to an end. On the other hand, if the possession is not valid and lawful, liability of promoter continues till a valid offer is made and allottee remains entitled to receive interest for the delay caused in handing over valid possession. The authority after detailed consideration of the matter has arrived at the conclusion that a valid offer of possession must have following components:

 

1.  Possession must be offered after obtaining occupation certificate- The subject unit after its completion should have received occupation certificate from the concerned department certifying that all the basic infrastructural facilities have been laid and are operational. Such infrastructural facilities include water supply, sewerage system, storm water drainage, electricity supply, roads and street lighting.

2.  The subject unit should be in habitable condition- The test of habitability is that the allottee should be able to live in the subject unit within 30 days of the offer of possession after carrying out basic cleaning works and getting electricity, water, and sewer connections, etc. from the relevant authorities. In a habitable unit, all the common facilities like lifts, stairs, lobbies, etc. should be functional or capable of being made functional within 30 days after completing prescribed formalities. The authority is further of the view that minor defects like little gaps in the windows or minor cracks in some of the tiles, or chipping plaster or chipping paint at some places or improper functioning of drawers of kitchen or cupboards etc. are minor defects which do not render an apartment uninhabitable. Such minor defects can be rectified later at the cost of the developers. The allottees should accept possession of an apartment with such minor defects under protest. This authority will award suitable relief or compensation for rectification of minor defects after taking over of possession under protest.

However, if the subject unit is not at all habitable because the plastering work is yet to be done, flooring works is yet to be done, common services like lift etc. are non-operational, infrastructural facilities are non-operational, then the subject unit shall be deemed as uninhabitable and offer of possession of an uninhabitable unit will not be considered a legally valid offer of possession.

 

3.  Possession should not be accompanied by unreasonable additional demands- In several cases, additional demands are made and sent along with the offer of possession. Such additional demands could be of minor nature, or they could be significant and unreasonable which puts heavy burden upon the allottees. An offer accompanied with        unreasonable demands beyond the scope of provisions of agreement should be termed an invalid offer of possession. Unreasonable demands itself would make an offer unsustainable in the eyes of law. The authority is of the view that if the additional demands are made by the developer, the allottees may accept possession under protest or decline to take possession raising objection against unjustified demands.

 

 

ADVOCATE KULDEEP KUMAR KOHLI

KOHLI AND KOHLI LAW ASSOCIATES

V-3/11, DLF PHASE III, GURUGRAM,

 HARYANA – 122002

Ph:01244014318,0124 4990107

Mail ID: contact@kohlilegal.com

WWW.KOHLILEGAL.COM

 

 

 

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Rate of interest so determined by the legislature, is reasonable and if the said rule is followed to award the interest, it will ensure uniform practice in all the cases.

In most of the builder buyer’s agreements, the allottee is entitled to delayed possession charges/ interest only at the nominal rate ranging from Rs. 5/- to Rs.15/- per square feet per month for the period of such delay depending upon projects, whereas the promoter is entitled to exorbitant interest ranging from 18% to 24% per annum on account of delay in making payments by the allottees. Time and again, the Hon'ble Supreme Court and various High Courts as well as the NCDRC have declared these types of discriminatory terms and conditions of the builder buyer’s agreement not final and binding. The Act has provided a level playing field in this regard and has mandated that the rate of interest chargeable from the allottee by the promoter, in case of default, shall be equal to the rate of interest which the promoter shall be liable to pay the allottee, in case of default. The legislature in its wisdom in the subordinate legislation i.e., the rules, has determined the prescribed rate of interest as per rule 15 of the rules. So, the rate of interest so determined by the legislature, is reasonable and if the said rule is followed to award interest, it will ensure uniform practice in all the cases. To support this contention reference can be made from the Judgement of Pioneer Urban Land & Infrastructure Limited Vs. Govindan Raghavan, 2019(2) R.C.R. (Civil) 738. In the aforesaid judgment, the Hon’ble Apex Court finding the terms and conditions of the agreement to be one sided unfair and unreasonable has upheld the award of the National Commission awarding the interest as per Rule 15 of the Rules at the rate of 10.7% per annum and not on the contractual rate The rule 15 of the rules has determined the prescribed rate of interest and it provides that for the purpose of proviso to section 12; section 18; and sub- sections (4) and (7) of section 19, the “interest at the rate prescribed” shall be the State Bank of India highest marginal cost of lending rate +2%. Consequently, as per website of the State Bank of India i.e., https://sbi.co.in, the marginal cost of lending rate (in short, MCLR) as on date i.e., 12.08.2021 is 7.30%. Accordingly, the prescribed rate of interest will be marginal cost of lending rate +2% i.e., 9.30%.

 

ADVOCATE KULDEEP KUMAR KOHLI

KOHLI AND KOHLI LAW ASSOCIATES

V-3/11, DLF PHASE III, GURUGRAM,

 HARYANA – 122002

Ph:01244014318,0124 4990107

Mail ID: contact@kohlilegal.com

WWW.KOHLILEGAL.COM

 

RERA Recognise the Registered as well as unregistered Projects.

 

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The provisions of the Act shall become applicable even to the un- registered projects or the projects which do not require registration with respect to the fulfilment of the obligations as per the provisions of the Act, the rules and the regulations framed thereunder.

The authority is competent to deal with the complaints filed by the aggrieved persons/consumers irrespective of the fact whether the project being registered or unregistered the authority has been burdened with the responsibilities to regulate the real estate projects within its territorial jurisdiction. To conclude that the authority shall only have control over the projects which have been registered with it and not over the projects which have not been deliberately or otherwise got registered with it, would be an interpretation nugatory to the objects sought to be achieved by the Act in its letter and spirit. As already mentioned, there is no distinction in the Act, or the rules made thereunder between the registered and unregistered projects. Moreover, such type of artificial classification to bring out the unregistered projects from the purview of the Act may violate the legislative intent and will not stand the touchstone of equality as provided under Article 14 of the Constitution of India qua the consumers in the registered and unregistered projects.

The statement that authority has no jurisdiction over the unregistered projects if accepted, the very purpose of the Act would be frustrated. The consumers of such projects will be deprived of the remedies provided under the provisions of the Act, even though they are also the consumers of the real estate projects. Such an absurd interpretation would defeat the very purpose, policy, aim and object of the  Act. It was felt that the consumers/home buyers were being exploited by the promoters/developers and they were helpless to get their grievances redressed effectively and expeditiously which necessitated the enactment of the Act. Thus, the very substance of the statement that the authority had no jurisdiction as the project was not registered with it, is without any substance.

Similar view has been taken by the Hon’ble Real Estate Appellate Tribunal Jaipur, Rajasthan in appeal no.RAJ-RERA-C-2018-2370 titled as Jain Realtors (P) Ltd. Vs. The Registrar of Real Estate Regulatory Authority, Jaipur, Rajasthan, and others, decided on 09.10.2018 and by the Hon’ble Real Estate Appellate Tribunal, Punjab, SAS Nagar (Mohali) in appeal no.49 of 2018 titled as M/s Silver City Construction Ltd. versus State of Punjab and others, decided on July 24, 2019. The Division Bench of the Hon’ble Bombay High Court in case Mohammed Zain Khan Vs. Maharashtra Real Estate Regulatory Authority and others, Writ Petition (Lodging) No.908 of 2018 decided on July 31st, 2018 has given direction in the complaint tendered online by the Allottees and other similarly situated complaints, in respect of unregistered projects would be entertained and same will be dealt with in accordance with the procedure being adopted by the Maharashtra Real Estate Regulatory Authority in respect of disposal of complaints in relation to registered projects. This direction issued by the Division Bench of Hon’ble Bombay High Court clinches the matter and makes it clear that the authority is competent to deal with the complaints filed by the aggrieved persons/consumers irrespective of the project being registered or unregistered.”

 

ADVOCATE KULDEEP KUMAR KOHLI

KOHLI AND KOHLI LAW ASSOCIATES

V-3/11, DLF PHASE III, GURUGRAM,

 HARYANA – 122002

Ph:01244014318,0124 4990107

Mail ID: contact@kohlilegal.com

WWW.KOHLILEGAL.COM

 

Rules 2(1)(o)(i) and 2(1)(o)(ii) of the rules are apparently inconsistent with section 3 of the Act.

 

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Rules 2(1)(o)(i) and 2(1)(o)(ii) of the rules are apparently inconsistent with section 3 of the Act. In the rules, the purview of ‘ongoing project’ has been restricted. It has been provided in explanation (i) of rule 2(1)(o) that those projects for which after completion of development works, an application under rule 16 of 1976 Rules (Haryana Development and Regulation of Urban Areas Rules, 1976) or under sub-code 4.10 of the Haryana Building Code was made to the competent authority on or before publication of the rules would not be ‘ongoing project’. Rules 2(1)(o)(ii) of the rules further provides that the ‘ongoing project’ does not include any part of any project for which part completion/completion, occupancy certificate or part thereof had been granted on or before publication of these rules. Rules 2(1)(o)(i) and 2(1)(o)(ii) are apparently inconsistent with section 3 of the Act.

      ADVOCATE KULDEEP KUMAR KOHLI

KOHLI AND KOHLI LAW ASSOCIATES

V-3/11, DLF PHASE III, GURUGRAM,

 HARYANA – 122002

Ph:01244014318,0124 4990107

Mail ID: contact@kohlilegal.com

WWW.KOHLILEGAL.COM

 

Hon'ble HRERA Gurugram clarified the classification of registered Project & unregistered project.

 

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There is no classification of registered or un-registered projects in the definition of the real estate projects.

The definitions of project and real estate project as defined in section 2(zj) and 2(zn) respectively will cover all the projects where the development of a building or the land into plots is carried out for the purpose of sale of the said apartment or the plot or the building. There is no classification of registered or unregistered projects in the definition of the real estate projects. The necessity to enact the present Act was felt as there was no special statute to provide effective remedy for redressal of the grievances of the home buyers. Keeping in view the background of the Act, it must be looked from the perspective harmony with the aim and objects for which it was enacted. The entire Act came into force w.e.f. 01.05.2017.

It is well settled principle that the preamble of the statute has a guide light to ascertain the legislative intent. The preamble of the Regulatory Authority has been established for regulation and promotion of the real estate sector and to protect the interest of the consumers in real estate sector.

The Definitions mentioned in Real Estate Regulation act 2016 cover all the projects where the development of a building or the land into plots is carried out for the purpose of sale of the said apartment or the plot or the building. There is no Classification of registered or unregistered projects in the definition of the real estate projects.

 

ADVOCATE KULDEEP KUMAR KOHLI

KOHLI AND KOHLI LAW ASSOCIATES

V-3/11, DLF PHASE III, GURUGRAM,

 HARYANA – 122002

Ph:01244014318,0124 4990107

Mail ID: contact@kohlilegal.com

WWW.KOHLILEGAL.COM

 

If there is deficiency in the application, the promoter cannot claim the deemed issuance of the occupancy certificate.

 

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In view of the deficiency in the application, the promoter cannot claim the deemed issuance of the occupancy certificate.

The application for issuance of occupancy certificate shall be moved in the prescribed form and accompanied by the documents mentioned in sub-code 4.10(1) of the Haryana Building Code, 2017. If the application submitted is not in prescribed form or the requisite documents as mentioned therein has not been submitted along with application, then application for issuance of occupation certificate cannot be said to be complete. If there are certain prerequisite those are to be met with before considering application for issuance certificate, then also in absence of such requisites being fulfilled, the application cannot be said to complete. If there is a provision of deemed issuance of occupation certificate in case no response is received from the competent authority, then such deemed issuance of occupation certificate clause shall be applicable once the application for issuance of occupation certificate is moved in prescribed form and accompanied by documents mentioned in code 4.10 of the Haryana Building Code, 2017 and also prerequisite for applying occupation certificate has been met with. The occupancy certificate has been issued for this project (Palm Gardens) on 10.01.2018, 02.05.2019 and 17.10.2019 and the application submitted by the promoter was not accompanied with the fire NOC which has been issued only on 27.11.2017, 27.03.2019 and 05.07.2019 respectively. By that time, the rules had already become applicable.

The Hon’ble HRERA doesn’t find any substance in the plea raised by promoter that the honorable authority had no jurisdiction to see as to whether the application moved by the promoter was complete or incomplete as this function falls within the administrative jurisdiction of the Director Town & Country Planning, because once the promoter was claiming issuance of deemed occupancy certificate before the authority on the basis of the provisions of the Building Code, the authority could not be a silent spectator to the deficiency in the application submitted by the promoter for issuance of the occupancy certificate. Thus, in view of the deficiency in the application, the promoter cannot claim the deemed issuance of the occupancy certificate. There is no applicability of deemed occupation certificate in case of deficient application, application not being in prescribed form, application not accompanied by prescribed documents or without meeting the prerequisite for applying for occupation certificate. The incomplete application is no application in eyes of law. Therefore, this project was neither issued occupancy certificate nor the completion certificate on or before the date of enforcement of the Act. So, there is no escape from the conclusion that the project in question required registration under section 3 of the Act. Once it is found that the project in question required registration, it will certainly be the ‘ongoing project’ and provisions of the Act, the rules and the regulations framed thereunder will become applicable.

 

ADVOCATE KULDEEP KUMAR KOHLI

KOHLI AND KOHLI LAW ASSOCIATES

V-3/11, DLF PHASE III, GURUGRAM,

 HARYANA – 122002

Ph:01244014318,0124 4990107

Mail ID: contact@kohlilegal.com

WWW.KOHLILEGAL.COM

 

    

   

 

 

Power of HRERA, Gurugram Issuing Warrants against Builders in Execution Proceedings.

  

 

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Execution Proceedings in the matter of: Chanderkant Soni Versus BPTP Limited (BPTP PARK GENERATIONS).

Order on Powers of The Honourable RERA Gurugram of arrest of the Judgment Debtor in exercise of powers under Order XXI Rule 37(2) of the CPC.

 

Day and date	12.02.2021 and Friday
Execution No.	E/645/2020 titled as Prashant Chanderkant Soni VS BPTP Limited
Complaint No.	444/2019
Decree holder	Prashant Chanderkant Soni
Represented through	Shri Kuldeep Kumar Kohli Advocate
Judgement debtor	BPTP Ltd.
Represented through	Sh. Venkat Rao Advocate
Proceedings recorded by	Naresh Kumari

 

1.          While exercising powers under Order XXI Rule 30 of the Code, the Authority hereby orders attachment of the above said bank account and directs the bank manager to remit the decretal amount in favor of the decree holder by way of producing demand draft before the Authority within 1.5 days, failing which the bank manager is directed to explain the reasons for non-compliance.

 

2.          The Authority further orders that if the decree for payment of money remains unsatisfied for a period of 30 days, the judgment debtor shall file an affidavit stating the particulars of the assets of the judgment debtor.

 

3.          As per provisions of Order XXI Rule 41(3) of the Code it is hereby made clear to the judgment debtor that in case of disobedience of order of the Authority made under Order XXI Rule 41(2) of the Code the Authority may direct that the person disobeying the order be detained in the civil prison for a term not exceeding three months unless before the expiry of such terms the Authority directs his release.

 

4.          In case the decree is not satisfied before the next date of hearing and the particulars of the assets of the judgment debtor are not produced within the time specified above, the judgment debtor shall be present before the Authority on the next date of hearing to show cause why he should not be committed to civil prison.

 

5.          It is further clarified that if appearance is not made in obedience to this notice, the Authority shall if the decree holder so requires issue warrant for the arrest of the judgement debtor in exercise of powers in Order XXI Rule 37(2) of the Code.

 

Advocate Kuldeep Kumar Kohli
V 3/11 DLF PHASE III
GURUGRAM
0124 4014318,0124 4990107, 08860332404
KULDEEPKOHLI@KOHLILEGAL.COM

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