A
new remedy under “The Real Estate (Regulation & Development), Act, 2016”,
is introduced for Buyers of Immovable properties. The present write up is
limited to those properties which are situate in the State of Maharashtra.
Who can maintain complaint before RERA
Authority / Adjudicating officer: All persons
(Buyers / Allottee) who have purchased Flat, etc, (even prior to the coming
into operation of this Act) in such Real Estate Projects which are required to
be compulsorily registered, are entitled to maintain complaint before Competent
Authority / Adjudicating officer established under the Act by the State Govt.
The Buyer will include such transferee who acquires the said Flat, etc. by way
of transfer or sale, but will not include such persons who are lessee or
Licensee. This is very important, that is to say, “All Real Estate Projects are
required to be compulsorily registered u/s 3 of the Act, which have not
received “Completion certificate” from the competent / local authority”. Therefore,
all Buyers / Allottes who are part and parcel of a Project which is required to
be registered under the Act, are qualified to file complaint under this new
regime.
What are the important details from
the view point of Buyer, which the Promoter is required to furnish at the time
of Registration of Project: Relevant Sections 4(2), 11(1): The
complete details of promoter including their photographs; nature of
organization set up; brief detail of project in the last 5 years introduced by
said Promoter, and their status; details of litigation pending in respect of
each of the project; copy of approvals including commencement certificate
obtained from competent / local authority; the sanctioned plan; the facilities
and amenities to be provided in the concerned project; the exact location of
the project; proforma of allotment letters, Agreement for Sale, etc to be
signed with potential Buyers; details of size of various apartments, Flats, etc
in the concerned project; details of garages available for sale; the details of
authorized Real estate Agents for the concerned project; the names and
addresses of contractors; architects, structural engineers associated with the
concerned project; and declaration that (a) Promoter has valid title to the
concerned land, (b) concerned land is free from encumbrances, or details of
encumbrances, if any, (c) the time period (the date) within which the Promoter
undertakes to complete the concerned project. After securing registration of
the Project, the Promoter is obliged to create a webpage on the website of the
Authority; and the Promoter is obliged further to update the details of registration
granted by Authority; and all the above details can be viewed by the potential
Buyer on the website of maharera.mahaonline.gov.in. The Promoter is further obliged
to update the details at their webpage regarding the number of Flats, etc,
garages, etc, sold; the status of the project, etc.
What are the important details which
the Promoter is required to furnish to the Buyer at the time of purchasing the
Flat, etc: Relevant
Sections 11(2), 11(3), 11(4), 12: All the above details of Registration is
available for the potential Buyer at the webpage stated hereinbefore. Section
11(2) of the Act obliges the Promoter to secure that any Advertisement of the
project must contain the details of their concerned webpage which is uploaded
on the webpage of the Authority.
Sale of Parking space: No
open parking space is permitted to be sold by Promoter. The Promoter can only
sell covered parking and garages as defined in the Rules.
Can the promoter change sanctioned
Plans: Section 14: No sanctioned plans, etc. can be
altered except with consent of the allottee. However, minor additions and
alterations are permitted as recommended by Authorized Architect / Engineer,
under intimation to the Allottee.
Insurance of the project: Section 16: Promoter
has to obtain all such insurance as notified by the State Government. The State
Government can prescribe insurance including but not limited to a) Title of the
land and building as a part of the real estate project; and b) Construction of
the real estate project.
What are the rights of the Buyer to
claim refund of purchase money and to claim damages, in the event the project
is not completed in time: Section
18: In cases where the Promoter fails to complete the project and give
possession of the Flat, etc, (a) according to the terms of the Agreement and
according to the declaration made u/s 4(2)(l)(C) of the Act; and (b) where the
business of the Promoter is discontinued due to suspension or revocation of its
registration of the concerned project, or (c) for any other reason, the
allottee / Buyer may file Complaint before Adjudicating officer (AO), through
the office of the Authority under Rule 7 of Maharashtra RERA Rules, 2017, in
the prescribed format in FORM “B” appended to these Rules. The Fee is Rs.5000/-
and it can be paid by NEFT / RTGS / any other digital mode. On receipt of
Complaint, the AO would issue Notice to the Promoter alongwith the copy of
Complaint; and also state the next date of hearing. On the said date of
hearing, the AO would explain to the Promoter / his authorized representatives,
the nature of contraventions alleged against it; and thereafter, may either dismiss
the complaint, or may fix the further date of hearing, for producing evidence
and other documents; and thereafter, after taking into consideration the
documents and evidences produced before it, either may dismiss the complaint,
or may adjudge the quantum of compensation to be payable to the Complainant;
and in both the event , either dismissal of complaint or grant of compensation,
the AO is obliged to record reasons for he doing so. The AO, before passing
Order, is also required to record his findings to such factors as specified in
Section 72 of the Act.
What are the rights of the Buyer to
claim possession: In cases where the Promoter fails to give
possession of the Flat, etc, according to the declaration made u/s 4(2)(l)(C)
of the Act, and where the business of the Promoter is not discontinued, and the
concerned project is not deregistered, and the Buyer doesn’t seeks the refund
of the purchase money and compensation, the allottee / Buyer may file Complaint
before Authority under Rule 6 of Maharashtra RERA Rules, 2017, in the
prescribed format in FORM “A” appended to these Rules. The Fee is Rs.5000/- and
it can be paid by NEFT / RTGS / any other digital mode. The procedure followed
is exactly the same which is followed by AO on receipt of Complaint. In the
event of delay in handing over possession, the Buyer is entitled for interest.
Appeal to the Orders passed by Authority
/ AO: Any person aggrieved by any order passed
Authority / AO, may file an Appeal before the Appellate Tribunal within a
period of sixty days, in accordance with Rule 9 of Maharashtra RERA Rules,
2017. Further Appeal would lie before High Court on the limited issue of
substantial question of law being involved in the dispute.
How to secure compliance of Orders,
interim or final, passed by Authority / Adjudicating officer: Rule 4; Section
40: The Orders, directions, decisions of Authority
/ AO may be enforced in the same manner like a decree of the Court is enforced.
Further, failure to comply to Orders, etc. of the Authority / AO may occasion
imposition of heavy penalty upon the Promoter, including criminal prosecution
as provided u/ss 63 to 68 of the Act.
What are the obligations of Promoter
to form Society and execute conveyance: The Promoter is
obliged to form Legal Entity like Cooperative Society, Company, Association,
Federation etc. within three months from the date on which 51% of the total
number of Purchasers, in such a building or a wing, have booked their apartment;
and shall execute a registered conveyance deed in favour of the allottee within
three months from date of issue of occupancy certificate or 51% of the total
number of Purchasers, in such a building or a wing, has paid the full
consideration to the promoter, whichever is earlier.
Can a complainant approach both the
Authority / AO and the Consumer forums for the same disputes: As
per section 79 of the Act, civil courts are barred from entertaining disputes
(suits or proceedings) in respect of matters which Real Estate Regulatory
Authority or the adjudicating officer are empowered to determine. However
section 88 at the same time also says that the provisions of this Act are in
addition to the provisions of any other law which are in force. So, in my view,
the jurisdiction of Consumer Forum can also be invoked simultaneously.
Similarly, the provisions of MOFA also survive after coming into force of this
Act.
What is the penalty prescribed for
non-registration of a project under the Act: If any
promoter fails to register his project, u/s 59 of the Act, he shall be liable
to a penalty which may extend up to ten per cent of the estimated cost of the
real estate project. On continued violation, he shall be punishable with
imprisonment for a term which may extend up to three years or with fine which
may extend up to a further ten per cent of the estimated cost of the real
estate project, or with both.
Sandeep Jalan
Advocate
Legal issues !!
If you are facing any of these issues like (a) Recovery of Moneys (b) Immovable property disputes (c) grievances against Municipalities & Govts., including challenge to legitimacy of laws etc. (d) grievances against illegalities and highhandedness of Police like illegal arrests, refusal to register FIR, deliberately flawed investigations, etc (e) False FIRs (f) False Claims (g) False evidences (h) Grievances against Judges (i) Illegal or perverse Orders of the Courts / Tribunals, among others.
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Thank you.
Comments
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