Since the enactment of Real Estate (Regulation & Development), Act, 2016 w.e.f. 01/05/2017, there has been many controversies and confusion regarding registration of some project, like-
Whether the project which are “on-going” on the date of enactment would be covered?
What if Occupation Certificate (OC) has been received before implementation of RERA?
What if Occupation Certificate has been applied before RERA but approval received after RERA?
What is completion certificate (CC) /occupation certificate is obtained however, some work is pending? etc
All the above points have been discussed by Gurugram Bench of Haryana RERA has, in the case of Ms. Simmi Sikka Vs. M/s Emaar MGF Land Limited where the following basic principle regarding the registration of project with RERA has been decided:
- All new projects are to be registered with the authority keeping in new the provisions of section 4(1) read with exemption from registration given in section 3(2) of the Act.
- All ongoing projects are to be registered with the real estate regulatory authority and an application for the registration of the project is to be made within a period of 3 months from the commencement of this Act. But keeping in view the fact that Haryana Real Estate (Regulation and Development) Rules, 2017 came into force w.e.f. 28/07/2017, the period for applying for registration may be treated as the period of 3 months from notification of Rules.
- Where CC has been received before RERA enactment : – In case of projects where the promoter has received the completion certificate for a real estate project, prior to the enactment of the RERA Act, there is no requirement of registration but for the projects where a completion certificate is received after the commencement of this Act, are to be registered.
- Where part OC/OC has been issued before RERA enactment but some development work is pending: – In case of projects where part occupation/occupation certificate has been issued but development works have not been completed so far such projects are also not exempted from the requirement of registration. During the hearing of complaints many such cases have come to the notice of authority and in such cases, the DTCP shall be required to withdraw the completion/occupation certificates issued and also to initiate an inquiry as how such certificates have been procured fraudulently. For such projects, a time of one month shall be given to the promoter to apply for registration otherwise penal proceedings shall be initiated against him.
- Where part OC/ CC has been received before RERA enactment: – Keeping in view the definition of “on-going projects” in rule 2(o) of the Haryana Real Estate (Regulations and Development) Rules, 2017 the part of the project for which part occupation /occupation certificate or part completion/completion has been issued prior to the publication of these rules shall not be required to be registered. The remaining part of the project is to be got registered for which application is to be made to the real estate regulatory authority within the specified time.
- Where application for OC/CC has been made: – In case of projects where the application for completion certificate either under 16 of the Haryana Development and Registration of Urban Areas Rules, 1976 or under sub-code 4.10 of the Haryana Building Code, 2017 has been made, shall not be treated as exempted from the requirement of registration as mere filing of application cannot be treated as completion of the project/occupation of project.
- In case of projects where an application for part completion/completion or part occupation/occupation were made before the commencement of the rules but the application was incomplete, such incomplete application cannot be treated as the valid application in the eyes of law and in such case, the deemed occupation certificate clause shall remain inoperative, even if no response is given by the competent authority.
- In case of projects where occupation certificate has been issued to the promoter but the date of completion of application along with the requisite documents and certificates was after the publication of these rules such project shall not come within the category of exempted projects for registration. For making an application for registration of such projects the promoter shall be required to do the needful immediately.
- Advertisement by project after completion certificate – The projects where promoter intends to advertise, market, book, sale or offer to sale, or invite persons to purchase in any manner any plot, apartment or building after completion of project shall not only be violating section 3(1) but also be in violation of section 4(1) as new project is to be registered by the promoter irrespective of the fact whether it is to be advertised, marketed etc before completion of project or post completion of projects.
Conclusion – From the above points, it can be concluded that only following kind of project are exempted from requirement of RERA registration with respective State:
- Where the development of the project has been completed in all aspect and the completion certificate has been received before enactment of RERA Act, i.e. 01/05/2017
- *Where the area of land of proposed project is less than 500 Square mtrs.
- *Where no. of apartments does not exceed 8 in all phases
- Where project is for the purpose of renovation, or repair or redevelopment which does not involve marketing, advertisement, selling or new allotment of any apartment, plot etc.
* if the appropriate Government considers it necessary, it may ask to get them registered under RERA
Member, RERA Team, Centrik
Disclaimer – Please note that the above articles is based on the interpretation of related laws and judicial pronouncement which may differ from person to person. The reader are expected to take the expert opinion on the matter. For any issue, the writer can be reached at firstname.lastname@example.org