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BEFORE THE MAHARASHTRA REAL ESTATE REGULATORY
AUTHORITY, MUMBAI

Virtual Hearing held through video conference as per
MahaRERA Circular No.: 27/2020


Complaint No. CC005000000258903


SWAPNIL SUNIL GARUD
...COMPLAINANT

Vs

SATISH BORA AND ASSOCIATES

...RESPONDENT


MahaRERA Project Registration No. P52100005544


I N T E R I M O R D E R
(19.03.2025)
(Date of Hearing: 14.11.2024)

Coram: Shri. Ravindra Deshpande, Member II, MahaRERA

Complainant in person
Adv. Parth Chauhan for the Respondent

1. The Respondent has filed the present application dated 17.11.2023 praying for
dismissal of complaint filed by the Complainant and to direct the Complainant
to pay Rs. 1,00,000/- towards cost to the Respondent on the ground of
maintainability of the present complaint before this Authority.

2. The brief facts of the application filed by the Respondent are as follows:-
a. That the complaint is not maintainable as this Authority does not have
jurisdiction to entertain the present complaint as the Respondent’s project
LIBERO registered under the
MahaRERA Project Registration No.
P52100005544
(hereinafter referred to as the “said project”), in which the
Complainant had booked the flat No. 704 in Wing H (hereinafter referred to
as the “said flat”) was duly completed before 29.03.2017 before the
commencement of the Real Estate (Regulation and Development) Act, 2016
(hereinafter referred to as the “said flat”). The Respondent had duly
submitted an Application dated 28.04.2017 for issuing an Occupancy

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Certificate thereby certifying that the development work has been completed
in accordance with the building rules.
b. That as per D. C. Rule No. 7.5 of the Pune Municipal Corporation, which is
in respect of the Occupancy Certificate, it is mandatory for the Municipal
Corporation to sanction the Occupancy Certificate within a period of 21 days
from the date of the application alongwith the completion certificate filed by
the Architect. If the Municipal Corporation fails to raise any objection within
the prescribed period, then the applicant is entitled to a deemed occupancy
certificate from the date of application.
c. That as per Regulation 7.4 of the D. C. Regulation for Pune Municipal
Corporation, wherein, it is clearly stated that if the Municipal Commissioner
fails to issue an Occupation Certificate then it is mandatory for the Municipal
Commissioner to issue a deemed Occupancy Certificate within a period of
15 days. In spite of this, the Pune Municipal Corporation failed to issue
Occupancy Certificate, hence, the Respondent approached the Hon’ble
Bombay High Court via Civil Writ Petition No. 4391 of 2018 and during the
pendency of the said Writ Petition, the PMC issued an Occupancy Certificate
accepting the application dated 28.04.2017 filed by the present Respondent.
Therefore, as Phase I of the said project was duly completed before May 2017
and before additional time was given by MahaRERA, the provisions of the
said Act are not applicable to the said project.
d. The present Complainant is not an allottee as defined under Section 2(d) of
the said Act and therefore, he is not entitled to file the present complaint.
e. That the Complainant has failed to adhere to the terms and conditions of the
booking form and hence, cannot enforce the terms unilaterally and that the
Respondent reserves its right to take necessary legal action against the
Complainant for the same.

3. The Complainant has filed the reply dated 31.05.2024 to the said application of

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the Respondent, wherein, it is submitted by the Complainant that the complaint
was filed by the Complainant against the Respondent for not refunding the
amount of Rs. 2,00,000/- (Rupees Two Lakhs Only) and that the Respondent
was trying to nullify the complaint by showing that the said project is complete
by showing completion certificate. However, as per the updated RERA project
details, the said project’s status is ongoing and revised proposed completion
date is 31/12/2026 and approximately 5 floors were extended, which was
informed to the Complainant after funds were transferred to the Respondent
and that the MahaRERA Project Registration Number is still active for extension
of the said project.

4. The said application was heard by this Authority on 06.08.2024, when, the
Complainant appeared in person and the Respondent appeared through its
advocates. During the hearing, it was submitted by the advocate for the
Respondent that the said project was launched in year 2012 and was completed
on 28.03.2020. The Respondent received completion certificate on 20.03.2017. On

29. 03.2017, the Respondent applied for OC from the Pune Municipal
Corporation and PMC failed to give the OC within 21 days. It was further
submitted that as per DC rule 7.5 of PMC which is in respect of OC, it says that
if PMC fails to give OC within 21 days from the application date, then it is
deemed that the OC has been granted. After filing Writ Petition on behalf of
Respondent, PMC accepted the application dated 29.03.2017 filed by the
Respondent and granted OC from 20.04.2017, therefore the said Act is not
applicable to the present case and that if the person is not an allottee and there
is no registered AFS in his favour then the complaint is not maintainable and it
was submitted that the Complainant is not an allottee as per the said Act. It was
submitted by the Complainant that the Respondent tried to sell the said flat by
showing the RERA registered project and as per RERA details the project is on-
going project and the revised date of completion of the said project is 30.12.2026

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by showing the above details, the Respondent has taken the amount from the
Complainant. The parties were given the liberty to file written arguments on or
before 20.08.2024 and the matter was directed to be scheduled on a suitable date
after 20.08.2024 and was adjourned to 14.11.2024 for arguments, on which date,
the matter was adjourned for orders on the maintainability application of the
Respondent.

5. In pursuance of the direction of this Authority as recorded in Roznama dated

06. 08.2024, the Respondent filed its Written Submissions on the maintainability
application of the Respondent, wherein, mainly the Respondent has repeated
and reiterated the contents of its reply and Application and additional
submissions were made, brief of such submissions are as follows:-

6. That on account of receipt of deemed Occupation Certificate, the phase of the
said project in which the said flat situates was not even required to be registered
under the said Act as more particularly mentioned in Section 3 of the said Act
read with Rule 4 of Maharashtra Real Estate Regulation and Development
(Registration of Real Estate Projects, Registration of Real Estate Agents, Rates of
Interest and Disclosure on Website) Rules 2017 (hereinafter referred to as the
“Rules”) and FAQ No. 11 of the additional FAQ 2 uploaded on the MahaRERA
website according to which On-going projects were given time till 30.07.2017 to
register the project under the said Act. If before registration, the project has got
OC/BCC, then the project is considered as has been completed as per section 3
of the said Act. Hence, it does not require registration.

7. That the grant of registration and Section 5(3) of the said Act is valid for the
period declared by the promoter under Section 4(2)(i)(c) of the said Act and the
period is to be date of completion of the real estate project or any phase thereof.
In the present case, the completion certificate was received on 28.04.2017 and
the occupancy certificate was received after the expiry of 21 days as such the
phase of the real estate project stood completed. In view thereof, the OC in

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respect of the said flat was already received before 01.08.2017, thus, the present
complaint is not maintainable and that there are catena of judgments passed by
MahaRERA as well as Bombay High Court, wherein, it has been held that the
Authority does not have jurisdiction to entertain complaints in respect of
projects which are not required to be registered under the said Act and hence
requested this Authority to dismiss the complaint of the Complainant at the
threshold.

8. That the Complainant has made an allegation that the Respondent sold the said
project by showing RERA registration but nowhere on the booking form it is
shown that the said project is RERA Registered Project nor the RERA
Registration Number is mentioned.

9. In order to decide the maintainability application, it is necessary to go through
the Project Registration Application filed by the Respondent at the time of
seeking MahaRERA Project Registration. On perusal of which, it is found that
on 28.07.2017, an application was made by the Respondent for seeking
registration of the said project. It is the contention of the Respondent that as per
Section 3(1)(2) of the said Act and Rule 4 of the Rules, the phase of the said
project in which the said flat situates was not required to be registered under
the provisions of the said Act. In order to discuss the said issue, it is imperative
that the relevant provisions of the said Act and the Rules are perused.

10. Section 3 of the said Act deals with Prior registration of real estate project with
Real Estate Regulatory Authority. Sub section 2 of Section 3 deals with the
scenarios in which registration of real estate project is not required to be
registered under the said Act, out of which, as per Section 3(2)(b) of the said Act,
such projects are not required to be registered which have received completion
certificate prior to commencement of the said Act. As per Rule 4 of the Rules,
the promoter of an ongoing real estate project, in which all buildings as per
sanctioned plan have not received occupancy certificate or completion

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certificate, as the case may be, as provided by clause (b) of sub-section (2) of
section 3 of the said Act, were required to submit application for registration for
each such phase of the project, within a period of three months from the date of
commencement of section 3. As per explanation given to Rule 4, the term
“completion certificate” means such building permission or certificate, by
whatever name called, which is issued by the competent authority by or under
the provisions of Maharashtra Regional Town Planning Act, 1966 or any other
law for the time being in force, in accordance with which the permission for
development has been granted.

11. In the present case, the competent Authority was Pune Municipal Corporation
and the said Authority has issued Occupation Certificate on 02.12.2021 for the
said project, which means that as on the date of enactment of the said Act, the
said project was incomplete. It is also the contention of the Respondent that the
Respondent had applied for Occupation Certificate on 28.04.2017 from the Pune
Municipal Corporation and the same remained to be issued by the Pune
Municipal Corporation despite the lapse of 21 days from the date of application
for the Occupation Certificate and that as per Regulation No. 7.5 of
Development Control Regulation, 2017, if Pune Municipal Corporation fails to
give Occupation Certificate within 21 days from the application date, then it is
deemed that the Occupation Certificate has been granted. In order to answer
this issue, it is necessary to peruse Regulation No. 7.5 of the Development
Control and Promotion Regulations for Pune Municipal Corporation, 2017.
“7.5 Occupancy certificate - The Municipal Commissioner after inspection of the work
and after satisfying himself that there is no deviation from the sanctioned plans, issue
an occupancy certificate in the form in Appendix- I or refuse to sanction the occupancy
certificate in Appendix –J within 21 days from the date of receipt of the said completion
certificate, failing which the work shall be deemed to have been approved for occupation,
provided the construction conforms to the sanctioned plans. One set of plans, certified

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by the Municipal Commissioner, shall be returned to the owner along with the
occupancy certificate. Where the occupancy certificate is refused or rejected, the reasons
for refusal or rejection shall be given in intimation of the rejection or the refusal.
The applicant may request for deemed occupancy certificate if eligible as above.
Municipal Commissioner shall issue the deemed occupancy certificate within 15 days of
the application.”

12. After perusing the same, it is observed that the Municipal Commissioner is
required to issue an occupancy certificate after inspection of the work and after
satisfying himself that there is no deviation from the sanctioned plans, in the
form in Appendix- I or refuse to sanction the occupancy certificate in Appendix
–J within 21 days from the date of receipt of the completion certificate from the
owner through his licensed surveyor/engineer/structural engineer/supervisor
or architect, failing which the work shall be deemed to have been approved for
occupation, provided the construction conforms to the sanctioned plans. The
applicant was given an option to request for deemed occupancy certificate in
such case. In pursuance of which the Municipal Commissioner was to issue the
deemed occupancy certificate within 15 days of the application.

13. In the present case, the Respondent has not put forth any request letter
submitted for the deemed occupation certificate as stated in Regulation 7.5, or
the deemed occupation certificate issued by Municipal Commissioner in
furtherance of such request. As a result, it cannot be said that on account of
failure of PMC to issue Occupation Certificate within 21 days from the
application, the said project has been granted deemed occupation certificate
since there was a procedure prescribed to get the deemed occupation certificate
as per Regulation 7.5 of the Development Control and Promotion Regulations
for Pune Municipal Corporation, 2017. Prima facie, it is seen that the Pune
Municipal Corporation has issued Occupation Certificate to the said project on

02. 12.2021, i.e. after the enactment of the said Act, as a result, the said project

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was required to be registered under the provisions of the said Act and hence,
the contention of the Respondent that the present complaint is not maintainable
since the said project was complete before 01.08.2017 does not hold good. Not
only this, it is the contention of the Respondent that the said project was deemed
to be approved for occupation before the enactment of the said Act. It would
not be out of context to mention here that if as per the contention of the
Respondent the said project was complete before the commencement of the said
Act and was deemed to be approved for occupation post the lapse of 21 days
from the date of application for Occupation Certificate, the Respondent has
failed to justify the reason for which the said project was applied for registration
under the said Act on 28.07.2017, i.e. on 91st day post the lapse of 21 days from
the date of application for occupation certificate. In view of the above
mentioned observations, in my opinion, the application filed by the Respondent
for dismissal of the complaint filed by the Complainant on ground of
maintainability deserves to be rejected.

(Ravindra Deshpande)
Member II, MahaRERA

RAVINDRA
PADMAKARAO
DESHPANDE
Digitally signed by
RAVINDRA PADMAKARAO
DESHPANDE
Date: 2025.03.19 16:15:57
+05'30'