Real Estate (Regulation and Development) Act, 2016 applicable only to ongoing projects, and which are to be developed after the commencement of the Act: Odisha RERA

Orissa Real Estate Regulatory Authority

Odisha Real Estate Regulatory Authority: In a complaint case which was remitted back for fresh disposal, by the Real Estate Appellate Tribunal (‘REAT’) , wherein it said that the Authority cannot not treat the completion certificate to be valid in one case and invalid in other, the two-member bench of Siddhanta Das (Chairperson) and Pradeep Kumar Biswal (Member) dismissed the case of the complainant, that the project concerned, D.N. Oxypark was required to be registered under Section 3 of the Real Estate (Regulation and Development) Act, 2016 (“the Act”) even after obtaining the completion certificate by the Bhubaneswar Development Authority (“BDA”), and observed that the case was not maintainable as the project was completed before the commencement of the Act.

In the case at hand, the complainant had questioned the completion certificate issued to the project by the BDA, considering that the project was still ongoing and thus, required to be registered under the Act. Further, the respondent questioned the applicability of the Act to the projects that have been issued completion and occupancy certificates by the local or competent authority after the commencement of the Act.

The Authority viewed that the Act came into force in the State of Odisha with effect from 01-05-2017. The completion certificate was issued on 22-06-2016 by an empaneled architect of BDA and based on this certificate the occupancy certificate was issued by the competent authority on 08-05-2017. The meaning of “competent authority” or “local authority” is attributed to BDA which is created under a statute and is assigned the power to sanction plans for construction of buildings or apartments.

Thus, the Authority said that “Since occupancy certificate has been issued by the competent authority, the same should be regarded as a genuine certificate issued by a statutory authority whose authority is legally permitted within the meaning of the definition of competent authority as defined in Section 2(p) of the Act”. Therefore, Section 3 of the Act excludes the project from registration since the completion certificate was issued only eight days after the Act came into force.

The Authority relied on Newtech Promoters and Developers Pvt. Ltd. v. State of U.P., 2021 SCC OnLine SC 1044, and answered the question regarding the applicability of the Act to the projects that have been issued completion and occupancy certificates. It was observed that,

“the application of the Act is retroactive in character and the projects already completed or to which the completion certificate has been granted are not under its fold and therefore, vested or accrued rights, if any, in no manner are affected. At the same time, it will apply after getting the on-going project and future projects registered under Section 3 to prospectively follow the mandate of the Act”.

The Authority established that the project was complete in all respects before the Act came into operation and the completion certificate was issued prior to the commencement of the Act and thus, the Act has no applicability to the project concerned.

Therefore, the Authority dismissed the case of the complainant in contest against the respondent without cost.

[D.N. Oxypark Residents Welfare Society v. Jagdish Prasad Nayak, decided on 20-03-2023]

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