Complaint No. CC005000000177720


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BEFORE THE MAHARASHTRA REAL ESTATE REGULATORY AUTHORITY
MUMBAI

Complaint No. CC005000000177720

Riverdale Suites Residents Association


... Complainant

Versus

1. Duville Estates Private Limited

2. Pune Municipal Corporation


... Respondents

MahaRERA Project Registration No. P52100014163


Coram: Shri. Mahesh Pathak, Hon’ble Member – I/ MahaRERA

Ld. Adv. Advait M. Sethna appeared for the complainant.
Ld. Adv. Chetan Kapadia appeared for the respondent no. 1.


INTERIM ORDER


(Monday, 26th February 2024)

(Through Video Conferencing)


1. The complainant above named has filed this online complaint before the
MahaRERA on 06-11-2022 seeking various reliefs from MahaRERA as
prescribed under the provisions of the Real Estate (Regulation &
Development) Act, 2016 (hereinafter referred to as ‘RERA’) in respect of the
respondent - promoter’s registered project known as “Riverdale Suites”
bearing
MahaRERA project registration No. P52100014163
located at New
Kharadi Behind Zensar IT Park, Khardi, Dist. Pune.

2. This complaint was heard by the MahaRERA on 26-12-2022 as per the
Standard Operating Procedure dated 12-06-2020 issued by MahaRERA for
hearing of complaints through Video Conferencing. Both the parties have been
issued prior intimation of this hearing and they were also informed to file their
written submissions if any. Accordingly, both the parties appeared and made


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their respective submissions. During the course of the said hearing , both the
showed their willingness to resolve the issue amicably through MahaRERA
Conciliation Forum. Accordingly, this matter was referred to MahaRERA
Conciliation Forum. However, despite efforts , the parties could not arrive at
any mutually agreeable terms and the conciliation between the parties failed.
Accordingly, this complaint was referred to MahaRERA with a remarks
conciliation failed on 01-06-2023.

3. In the meantime, the complainant filed a Writ Petition No. 1022 of 2024 before
the Hon’ble High Court at Bombay on 11-01-2024 seeking following reliefs:-
“a. This Hon’ble Court issue a Writ of Mandamus or any other appropriate
Writ against the Respondent No.1 thereby directing it to list the
Complaint
No. CC00S000000172720
on board for Urgent hearing for Interim Reliefs and
pass appropriate orders thereafter.
b. This Hon’ble Court be pleased to issue Writ of Mandamus or any other
appropriate Writ to direct the Respondent No.1 to hear and dispose of the
Complaint in a time bound manner, preferably within 2 months from the date
of the Order of this Hon’ble Court.
c. This Hon’ble Court be pleased to Writ of Mandamus or any other
appropriate Writ to direct the Respondent No.1 to upload / display the
consents of the members of Petitioners, which is submitted by the
Respondent No.2 to Respondent No.1, on the website of MahaRERA in
project details of ‘Riverdale Grove’.
d. Pending the hearing and final disposal of this Petition, this Hon’ble Court
be pleased to maintain status quo ante and / or direct Respondent No.2 to
refrain from further construction / handing over the possession of the flat in
Riverdale Grove in any manner whatsoever.
e. Ad-interim Reliefs in terms of the above.
f. Costs of this Petition.
g. Any other reliefs as deemed appropriate by this Hon’ble Court in the facts
and circumstances of the present case.”

4. In the said petition, the Hon’ble High Court was pleased to pass an order on
20-01-2024. The said order reads as under:-


Complaint No. CC005000000177720


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“4. From what has been submitted by learned Counsel for the parties, it
appears to be not in dispute that the petitioner’s complaint, the details
of which are set out in prayer clause (a), is pending before respondent
No.1. The contention of the petitioner is that the petitioner is
canvassing the interest of 97 flat purchasers who have several
complaints against respondent No.2. They allege some illegalities at the
hands of respondent No.2 in undertaking the project. Such allegations
are seriously disputed on behalf of the respondent No.2 by Mr. Kapadia.
Mr. Kapadia’s contention is to the effect that whatever has been carried
out by respondent No.2 under the project, is in accordance with law and
also is subject matter of approval by the RERA authorities.

5. Mr. Sethna has fairly stated that in the complaint filed before the
Authorities, there are prayers for interim reliefs. His contention is that
the prayers for interim reliefs and/ or ad-interim reliefs which are to be
pressed, are required to be urgently heard by respondent no.1 and
appropriate orders passed. It is submitted that the next date of hearing
as assigned to the proceedings by respondent No.1 is 16 May 2024 and if
the proceedings wait till such date, serious and irreparable prejudice
would be caused to the petitioner. His submission is that in these
circumstances, the petitioner is required to approach this Court for the
reliefs as prayed for including interim reliefs.

6. Having heard learned Counsel for the parties and having perused
the record, in our opinion, as the proceedings are pending before
respondent No.1 as also there are prayers for interim reliefs, it is
appropriate that the petitioner pursues the interim application for its
prayer for any interim relief before respondent No.1. In our opinion, the
prayers of the petitioner for any interim relief as made on the Complaint
of the petitioner, needs to be considered by respondent No.1 as


Complaint No. CC005000000177720


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expeditiously as possible. We direct the petitioner to approach
respondent No.1 on 24 January 2024 at 11 a.m. In this regard no fresh
notice be served on Respondent No.2 as respondent No.2 is already
represented before us.

7. The RERA Authority would hear the parties on a suitable date on
interim reliefs and pass appropriate interim orders on the proceedings
in accordance with law within a period of four weeks from today.

8. All contentions of the parties on the proceedings of the Complaint
are expressly kept open.

9. Disposed of in the above terms. No costs.

10. Needless to observe that in the event a reply is to be filed by the
respondents, such request may be appropriately considered by
respondent No.2 in the light and the nature of the interim reliefs as
prayed by the petitioner”.

5. Pursuant to the aforesaid directions issued by the Hon’ble High Court at
Bombay, the complainant and the respondent appeared before the MahaRERA
on 24-01-2024 and recorded their appearance. On that they were informed by
the MahaRERA that the matter would be taken up for hearing as directed by the
Hon’ble Bombay High Court on 06-02-2024.

6. The complainant herein has uploaded an interim application seeking interim
reliefs as per the order of the Hon’ble High Court on record of MahaRERA on
25-01-2024.

7. Accordingly, the hearing notice was issued to both the parties and the matter
was scheduled for hearing before the MahaRERA on 06-02-2024 to hear the said
interim application filed by the complainant.


Complaint No. CC005000000177720


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8. Accordingly, both the parties appeared for the said hearing held on 06-02-2024
before the MahaRERA through their respective Advocates. On that date after
hearing the submissions made by both the parties, the following roznama was
recorded:-
“Both the parties are present.
This matter has been kept for interim reliefs of the complainant. However, the
respondent has pointed out that said application for interim reliefs was received
by it on 25-01-2024. Be that as it may, it is also pointed out to the respondent
that the said prayers are already part of the original prayers in the complaint.
The 2 main prayers of the complainant are regarding non - creation of third-
party rights in the neighboring building called Riverdale - Grove which is
registered with MahaRERA vide Project Registration No. P52100029023 and the
2nd prayer for interim reliefs is regarding stopping the construction of the said
Riverdale - Grove Building. The main grounds argued by the complainant for
interim reliefs is that even though this complaint is filed in a different
registration number related to Riverdale - Suits in which the complainant
resides, the neighboring building is carved out of the parking which was part of
this Registration number in which the complaint has been filed i.e.
P52100014163. However, the respondent has refuted this contention of the
complainant mentioning that the said application for revision for change of the
plan was made sometime in 2021 and the new registration number
- P52100029023 was granted by the MahaRERA on 11-04-2022 after considering
that the all the requirements as per the law have been fulfilled by the
respondent.
Be that as it may, the respondent is directed to file its reply to the application
for interim reliefs of the complainant in detail within a period of one week i.e.
by 13-02-2024. Further one week’s time i.e. till 20-02-2024 is granted to the
complainant to file rejoinder to the said reply. Needless to mention both the
parties may serve each other with the copies of the reply and rejoinder.
This matter is adjourned to 21-02-2024 for final arguments on the interim
prayers of the complainant.”

9. Thereafter, this complaint was again heard by the MahaRERA on 21-02-2024,
when both the parties appeared and made their submissions. After hearing the


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arguments of both the parties the following Roznama was recorded in this
complaint -
“The matter was kept today for final arguments on the interim application
filed by the complainant pursuant to the order dated 22-01-2024 passed by
the Hon’ble High Court at Bombay in W.P.No. 1022 of 2024. The prayers
are with regard to the creation of a third party right in the building no. 8
of the Riverdale Grove project (registered under no. P52100029023) as well
as to stop the construction of the building no. 8 and to prevent the
respondent from taking any further precipitative steps with regard to the
construction of building no.8. The respondent has filed its reply to the said
interim application and the complainant has filed rejoinder to the said
reply of the respondent. Both the parties have argued the matter on interim
prayers at length. Both the parties may file written submissions today
itself in the complaint and serve the copy on each other and upload the
same as well.
The complainant has pointed out that -i) - there is no need for the
association to be registered as per the circulars of RERA and ii) - that it
has 97 members which constitute the majority of the allottees which fact
is disputed by the respondent claiming that the complainant association
does not have the requisite majority of the allottees.
The complainant has also questioned the date on which the consent of the
allottees

in
the
Riverdale
Suits
project
(registered
under
no.P52100014163)was obtained. Specifically, the complainant has pointed
out that the process of obtaining the consents was initiated in February
2022 while the registration for Riverdale Grove project (registered under
no. P52100029023) was done in April 2021. Therefore, the consent for
deletion of building no. 8 which forms the part of the project Riverdale
Suites was done after the registration for Riverdale Grove had already
been obtained. Therefore, the complainant has pointed out that this


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procedure adopted by the respondent was not right. Moreover, inventory
shown by the respondent as sold inventory does not match the number
shown in the consent documents. Therefore, the complainant prays that
the construction for Building No. 8 should be stopped forthwith and no
further third party rights be created.
The respondent has refuted these contentions of the complainant and has
pointed out that the consents of more than 67% of the allottees have been
obtained for the change in plan as well as for deletion of the building no 8
from Riverdale Suits project (registered under no.P52100014163) which
initially had Building Nos. 8 and 9. Admittedly, the respondent has
pointed out that the registration for Riverdale Grove was done in April
2021 while the correction of the project registration details of Riverdale
Suits project was done in April 2022, after the consents were obtained of
more than 67 and 70 % of the allottees for deletion of parking building (
building no.8)and for change in built up area respectively. It may be
pointed out that the project has a large layout consisting of many
buildings and many registration numbers. Therefore, the respondent has
contended that allottees of project Riverdale Suits which is a different
project registration number, have no right in the registration number of
Riverdale Grove which is a different project although part of the same
layout. Moreover, the third-party rights have already been created in the
said building No. 8, which forms the part of Riverdale Grove and therefore,
any ad-interim injunction at this stage would not be proper. Further the
respondent has also pointed out that the adequate parkings would be
provided for the allottees of Riverdale Suits and they have already applied
for occupancy certificate to the planning authority and these parkings
would be in the basements / stilts under the buildings.
In view of the above, this matter is reserved for orders on the interim
prayers of the complainant based on the reply, rejoinder and written


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arguments filed in the complaint as well as arguments of both the parties
in the hearing today including the case law cited by the parties. The future
course of action in the complaint would be decided once such an interim
order is issued.”

10. The complainant by filing this interim application on record of MahaRERA has
mainly sought following reliefs at this interim stage:-
“1. That pending hearing and final adjudication of this Complaint, the
Respondent No. 1 Builder be directed to forthwith, refrain from alienating /
transferring and / or creating any third-party rights in respect of the said
illegally constructed Building, i.e. Riverdale Grove.

2. That pending hearing and final adjudication of this Complaint, the
Respondent No. 1 Builder be directed to forthwith stop the illegal construction
of the so called/purported new proposed Building, i.e., Riverdale Grove.

3. That pending hearing and final adjudication of this Complaint, the
Respondent No. 1 Builder be directed not to take any precipitative steps in
regard to the said Project and the illegal project ‘Riverdale Grove’.

4. Ad-interim reliefs in terms of the above.

5. Any other relief, including Compensation which this Hon’ble Authority
deems fit and proper in the facts and circumstances of the case.”

11. In the interim application filed before the MahaRERA, the complainant has
stated it has filed this application for urgent reliefs being a registered
Association of Persons comprising of Home Buyers, who under the
sanctioned/approved plan agreed to purchase flats/apartments in one
residential building of Ground plus 23 floors and parking space in the adjacent
building, known as B-8, under construction to be specifically constructed for
parking of two and four-wheeler vehicles of such home buyers/purchasers
consisting of Ground plus 7 floors. Such project was to be developed by the


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said Respondent No. 1. It has stated that in the agreements signed by the
respondent no. 1 with its members and Brochure also refers categorically to
the adjacent parking building, i.e. B-8 designated for parking purposes. The
said project i.e. Riverdale Suites is registered under the provisions of the RERA
under registration no. P52100014163. The complainant further stated that as
set out in Clause C of such agreement entered into by its members and the
respondent no. 1 the building no. B-8 of the said project will only consist of
parking spaces and no construction will be undertaken on such plot
demarcated exclusively for parking to be allotted to such flat/apartment
purchasers/Members 3 of the Complainant Association. Such explicit
understanding is also reflected not only in the said Agreements but also forms
part of the sanctioned/approved plans registered with the MahaRERA. It has
further stated that according to Clause G of the said agreement/s, the
respondent no. 1 proposed and agreed to construct about 23 or more floors in
the residential building of the said project and that the respondent no. 1 has
received the requisite sanctions/approvals from the Pune Municipal
Corporation as set out in the said clause. Pursuant to such agreement/s, the
respondent no. 1 has commenced with the construction of such residential
building as part of the said project. As stipulated in Clause 2(a)(i) of such
agreement, its members shall be provisionally allocated right to use of car
parking spaces/two wheelers in the parking Building, i.e. B-8 bereft of any
consideration, to be constructed adjacent to the residential building, both
forming part of the said project. Pursuant to the clause 8 of the said agreement,
the respondent no. 1 shall hand over the possession of the flats/apartments
purchased by its members on or before December 2021, June 2022 and
September 2022 respectively, as more clearly set out in the said Clause of the
said agreements. However, its members received an email in and around
December 2021, stating that the possession of the Flats/Apartments would be


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delayed due to the restrictions imposed by the Central and State Governments
to control the ongoing Covid-19 Pandemic, and that the possession of the
flats/apartments will be handed over to its members in the month of
December 2022. The respondent no. 1 did not amend the payment schedule
and compelled the home buyers to make 95% payment even when the work of
the said Parking Building, i.e. B-8, had not even commenced. The respondent
no. 1 had initiated the process for forming the Society in respect of the said
Project in the Year 2021. The consent of its members was obtained for such
Society formation and the same was duly given by them. But till date, the said
Society has not been formed to the best of its knowledge nor has the
respondent no. 1 informed/updated it on the status of such Society formation.
Further, in and around February 2022, its members received an email/phone
call from the representative of respondent no. 1 to the effect that that they
propose to make substantial changes and material alterations in the
sanctioned/approved plan of the building to be constructed only for parking
spaces as part of the said project and to obtain the consent of the
flat/apartment purchasers for the same. Such consent was sought for deletion
of parking in building no. B-8 and the same to be shifted to adjacent building
basement referred to as Riverdale Grove. Such email only mentions that the
respondent no. 1 would be providing parking to its members on the basement
of the proposed illegal building, i.e. Riverdale Grove. The Architect’s
Certificate dated 17th January 2019 issued by one M/s Pinnac AECL
Consultancy Pvt. Ltd. in respect of the said Project, was issued for certifying
the percentage of completion of work of 2 (two) buildings in the said Project.
The Architect’s Certificate dated 7th November 2019 issued by one M/s Pinnac
AECL Consultancy Pvt. Ltd. in respect of the said Project, was issued for
certifying the percentage of completion of work of 1 (one) building in the said
Project. Therefore, it is crystal clear that much before May 2021 and February


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2022, when the respondent no. 1 registered the illegal project with MahaRERA
and when he sent an email for obtaining the consents, he was planning to
illegally replace the parking building with a residential building and thus the
respondent no. 1 has wilfully defrauded all the innocent homebuyers. It is also
pertinent to note that the respondent no. 1 uploaded Declaration about
Commencement Certificate of illegal Project Riverdale Grove Building on
MahaRERA website stating that they have obtained layout approval from
Pune Municipal Corporation (Planning authority) on CC No. 2060/20 dated
18/03/2021 for B-1 + 4P + 23 Floors) for Building B-8 Plot / Building / Floors”
when registering the illegal project ‘Riverdale Grove’ prior to May 2021. It is
also stated that it is reliably learnt by some of its Members that the Pune
Municipal Corporation has not issued any Commencement Certificate No.
2060/20 dated 18/03/2021 in favour of the B-8 Building, i.e. the illegal project
‘Riverdale Grove’. The Riverdale Suites and the abovementioned illegal
building Riverdale Grove are completely unconnected. In fact, Riverdale
Grove is an attempt to construct another illegal residential building on the
same land where building no. B-8 exclusively meant for parking of two/four
wheeler vehicles of the residents of Riverdale Suites. Its members have entered
into an agreement with the respondent no. 1 for purchasing flat/apartment in
the said project, i.e., Riverdale Suites with parking spaces in building no. B-8
only. Anything contrary to such Agreement/s and approved/sanctioned
plans without consent of 2/3rd number of homebuyers/flat purchasers as per
RERA is illegal. The respondent no. 1 does not have the statutorily mandated
number of consents from the members who have purchased flats/apartments
in the said project. Thus, the purported claim of the respondent no. 1 of having
received the consent is not only false but an attempt to portray a false picture
to mislead the home buyers/flat purchasers for its own vested interests. The
respondent no.1 has not produced the purported 2/3rd Consents received by


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him prior to May 2021 till date. Further, it is shocking and appalling to note
that the respondent no. 1, in spite of being aware that he does not have the
requisite number of consents, is illegally creating third party rights that too in
the space reserved exclusively for parking to be allotted to home buyers/flat
purchasers of Riverdale Suites in the adjacent building B-8. However, instead
of such building B-8, another residential building Riverdale Grove is coming
up, contrary to all the Agreement/s and the sanctioned/approved plans. This
is to be constructed for residential purposes as against the original building B-
8 exclusively for parking of home buyers/flat purchasers of Riverdale Suites
as per the agreements and sanctioned/approved plan of the said project. Such
is again an obvious substantial change, material alteration and deviation,
contrary to the sanctioned/approved plan. In any event, its members were
also kept in dark by the respondent no. 1 of such illegal construction of the
proposed residential Building, i.e. Riverdale Grove, and were never informed,
made aware of such unilateral substitution in the sanctioned/approved plan,
copy of which is annexed in the Complaint. In and around May 2021, its
members, for the first time, received an email from the respondent no. 1,
advertising the illegal 10 construction/project, i.e., Riverdale Grove. The
respondent no. 1 has somehow registered the said illegal building, i.e.
Riverdale Grove with the MahaRERA and the same is registered and
numbered as P52100029023 on the basis of documentation which is false and
dishonest. On visiting the MahaRERA website to get further details regarding
registration of such illegal building, i.e., Riverdale Grove, it was aghast to
know that the respondent no. 1 has uploaded an Affidavit dated 30th March
2021 under the heading ‘Declaration in Form-B’, which fails to disclose and
suppresses the material fact that the said project land was designated
exclusively for the purposes of two/four-wheeler parking spaces, i.e. B-8 to be
allotted to/utilized by the members of the Applicant Association. Therefore,


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the said Affidavit for the illegal building, i.e. Riverdale Grove, filed with
MahaRERA misrepresents the facts and deposes falsely. Further, to the best
knowledge of the complainant, the respondent no. 1 does not possess the
statutorily mandated 2/3rd number / 100% of consents of the home
buyers/flat purchasers as required under the RERA. The Applicant states and
submits that initially, the respondent no. 1 had promised about 1000 parking
spaces to the members of the Complainant Association. As against this, the
respondent no. 1 is now allotting only 129 parking spaces, that too in the
basement of the illegal building, i.e. Riverdale Grove. Such illegality would
further result in increased maintenance cost, issues between the members of
Riverdale Suites and the illegal building, i.e., Riverdale Grove, etc. Hence, it
has prayed to allow this interim application and grant reliefs as sought by it.

12. The respondent no.1-promoter has opposed the aforesaid interim application
seeking aforesaid interim reliefs by filing its reply on record of MahaRERA. It
has denied all the averments, allegations made and contentions raised in the
by the complainant in the said interim application filed by the complainant on
25-01-2024. The complainant is guilty of suppressio veri and suggestio falsi
and has suppressed various material facts, information and documents which
are crucial for adjudication of the complaint pending before the MahaRERA.
It has also stated that the said interim application ought to be dismissed by the
MahaRERA at the threshold on the following grounds:
a) The requisite 2/3rd consent of the allottees of the project known as
“Riverdale Suites” has been obtained to amend the layout plans and after due
verification and scrutinization by the MahaRERA, it allowed the corrections in
the said project and issued a fresh registration certificate. On this ground itself
, this interim application is liable for dismissal.
b) The complainant’s association of persons has claimed that it is a registered


Complaint No. CC005000000177720


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association, however from a bare reading of the complaint and interim
application, there is no disclosure as to any registration number of the
complainant-association. Nor any proof or particulars of registration have
been provided by the complainant.
c) As per section 31 of RERA and the explanation provided therein, it is clear
that for the purposes of filing a complaint under section 31 of RERA, only a
registered association of persons can file a complaint under section 31 of
RERA. Hence, the present complaint as well as the interim application
complaint are not maintainable in law.
d) The complainant -association has misrepresented to the MahaRERA that it
represents the interests of a certain number of allottees. Assuming whilst
denying the same, the complainant still does not even represent a clear
majority of the allottees of the said project “Riverdale Suites”.
e) The complainant has failed to prove that it has the authority in law to
institute the present interim application and complaint on behalf of the
allottees it purports to represent.
f) The complainant has failed to provide any reference to the provisions of
RERA which entitles it to seek interim reliefs of the nature sought in the interim
application, in respect of a project in which the members of the so called
association are not even allottees. The allottees of project known as “ Riverdale
Suites” have no right, title or interest in the said project known as “Riverdale
Grove” apart from parking spaces which are being provided to the said
allottees in the basement of project “Riverdale Grove”.
g) Further section 36 and section 38 of RERA which govern the powers of the
MahaRERA do not confer any power on the MahaRERA to restrain a promoter
from carrying out construction of a duly registered RERA project and
restraining it from creating third party rights in a registered project.
h) The complainant has failed to show what precipitative steps are being taken


Complaint No. CC005000000177720


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by it in respect of the said project “Riverdale Grove” which warrant the grant
of any interim reliefs. The complainant has not shown any urgency been made
out for grant of interim reliefs in the interim application filed by the
complainant.
i) The complainant has in the complaint acknowledged that its claims are
capable of monetary evaluation/compensation. In such a case, the
complainant is disentitled from being granted any injunctive/interim reliefs.
It has stated that it is developing this project and obtained registration
certificates from the MahaRERA vide no. P52100014163 (Riverdale Suites) and
no. P52100029023 (Riverdale Grove”) under the provisions of RERA. Both the
projects Riverdale Suites and Riverdale Grove are being constructed by it as
per the sanctioned plans approved by the Pune Municipal Corporation
(“PMC”). After understanding the merits of the proposal, the allottees have
willingly provided and it has obtained informed irrevocable consents of the
two-third of the allottees of the said project “Riverdale Suites” as required in
accordance with the provisions of Section 14 (2) of the RERA to amend the
layout plans. After submission of the said correction application seeking
change, it has cleared the queries and obtained revised registration certificate
on 11-04-2022 on the basis of the said irrevocable consents expressly provided
by the requisite allottees of the said project “Riverdale Suites”. However, the
complainant association which is registered on 12-06-2022 just to harass it and
to extract additional benefits from it has filed this complaint. It has further
stated that the so-called complainant-association is disentitled from being
granted any injunctive/interim reliefs. The said complaint and the interim
application have been filed at the behest of one Mr. Nikesh Pandhi, who claims
to be the chairman of the so-called registered Association known as Riverdale
Suites Residents Association now purportedly claiming to be representing 97
allottees of the project Riverdale Suites as can be seen from the order of the


Complaint No. CC005000000177720


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Hon’ble Bombay High Court dated 22-01-2024. The so-called registered
association seems to have been formed as per the terms of the Agreement of
Association of Persons dated 12th June, 2022. However, the said Agreement of
Association of Persons dated 12th June, 2022 has only been signed by Mr.
Nikesh Pandhi, his wife Ms. Sonal Pandhi (who have jointly purchased the flat
No. B9-0710, without any parking space) and Mr. Harneet Singh (who has
purchased Flat No. B9-1411, without any parking space) purporting to be the
Chairman, Secretary and Treasurer respectively of the so called Association
and purportedly representing 72 allottees of the said project who are not even
signatories to the said agreement dated 12th June, 2022. It shows that the
complainant association has no majority to file this complaint itself. Moreover,
it has received the requisite consent of 2/3rd allottees of project “Riverdale
Suites” , there were 241 total allottees (as per the definition provided in section
2(d) of RERA), out of which 162 allottees have granted their irrevocable
consents to it. In view of these facts, the complainant has prayed for dismissal
of this interim application as well as the complaint.

13. The complainant has refuted the aforesaid contentions of the respondent no.
1-promoter by filing its rejoinder on record of MahaRERA. The said rejoinder
dated 20-2-24 is mere repetition of what has been stated in its complaint. It has
denied the contentions in the reply filed by the respondent no.1 and denied
the reply of the respondent in toto. However, it has brought on record the
agreement by which the Association of Persons was formed. It is further stated
that the definition of the word ‘person’ in Section 2(zg) of the Act includes an
Association which is not incorporated or registered. In any event, it is a settled
law that even an unregistered association can approach the MahaRERA for
redressal of its grievances vide the

JUDGMENT

of the Hon’ble MahaRERA
Appellate Tribunal in the case of CCI Projects Pvt. Ltd. vs. Rivali Park


Complaint No. CC005000000177720


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Wintergreen Buyer’s Association & Ors. The respondent no. 1 has admitted
that the illegal Building ‘Riverdale Grove’ is being constructed on the same
parcel of land where the B-8 parking building was to be constructed, which
forms of part of the project ‘Riverdale Suites’ in the original plan. Therefore, it
is incorrect to state that the allottees of the Project ‘Riverdale Suites’ have no
right, title or interest in illegal Project ‘Riverdale Grove’. Hence the
complainant has prayed to allow the interim application.

14. Both the parties have also filed their written submissions along with the
supportive documents. The same are nothing but mere repetitions of the
earlier submissions made by both the parties.

15. The MahaRERA has examined the rival submissions made by both the parties
on the interim application filed by the complainant-association. On bare
perusal of the said interim application the MahaRERA has noticed that the
complainant association is mainly seeking three interim reliefs in the said
application viz ( i) non- creation of third party rights in respect of the project
known as “Riverdale Grove” which is registered under no. P52100029023
alleging that it is illegal building, (ii) direction to the respondent no. 1
(hereinafter referred to as the respondent for sake of brevity) to stop the illegal
construction in the new proposed building known as “Riverdale Grove” and
(iii) not to take any precipitative steps in the said project known as “Riverdale
Grove”.

16. The complainant has mainly contended that the building no. B-8 which was
designated for parking purpose (which was earlier part of the said project
known as Riverdale Suites”) has been deleted without obtaining requisite
consent from the allottees of the said project viz Riverdale Suites and the same


Complaint No. CC005000000177720


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is converted into a residential building from being a parking building. The
complainant further contended the date of consent obtained by the respondent
which was initiated in February, 2022 was subsequent to the modifications in
the plans by the respondent in the year 2021. It shows that the respondent has
not obtained consent of the allottees before modifications in the sanctioned
layout plan. The complainant therefore contended that the consent obtained
by the respondent for deletion of the said building no. B-8 (which was initially
part of the said project registration no. P52100014163 known as Riverdale
Suites) was done after the registration of the project registered by it vide no.
P52100029023 known as - Riverdale Grove. The complainant therefore
questioned the procedure adopted by the respondent for obtaining the consent
for modifications in the sanctioned plan. In addition to this, the complainant
has also raised an issue with respect to the sold and unsold inventory and the
number of consents obtained by the respondent from the same. As far as the
issue of majority of the allottees for formation of the complainant’s association,
it has stated that it is having requisite 97 members in the said project which
forms majority and also the registration is not required for the complainant-
association. Hence, the complainant prayed to stop the construction of
building no. B-8 forthwith and restrain the respondent from creating any third
party rights in respect of the said project known as Riverdale Grove.

17. The respondent has resisted the aforesaid claim raised by the complainant in
the said interim application and has further stated that it has obtained consents
of more than 67% of the allottees of the said project known as Riverdale Suites,
for change of plan and also for deletion of said parking building no. B-8 from
the said project registration of Riverdale Suites. It has also stated that
admittedly, the project registration for Riverdale Grove was done in the month
of April, 2021 and the corrections in the project known as Riverdale Suites was


Complaint No. CC005000000177720


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done in the month of April, 2022, after obtaining the consent of more than 67%
for deletion of the said building no. B-8 from the project of Riverdale Suites
and for change in built up area it has obtained more than 70% consent. It has
stated that the project has a large layout consisting of a numbers of building
with different phase of project registration numbers. Hence, the complainant
which part of the project known as Riverdale Suites has no right to raise any
issue with respect to the project known as Riverdale Grove, which is altogether
a different phase of project in the same layout. It has further contended that it
has already created third party rights in the said building no. B-8 and hence it
would not be proper to grant any ad-interim relief at this stage. In addition to
this, the respondent has also challenged the locus standi of the complainant
and stated that the complainant is not having support of the majority of the
allottees of the said project Riverdale Suites and hence it has no locus standi to
file this complaint as well as the present interim application. Also, the
adequate car parking space would be provided to the allottees of the said
project Riverdale Suites in the basement / stilt of the said buildings. Hence, it
has prayed for dismissal of this interim application filed by the complainant-
association.

18. Considering the aforesaid submissions made by both the parties, the
MahaRERA feels it necessary to peruse the details of project registration
uploaded by the respondent promoter while obtaining the registration for
both the projects viz Riverdale Suites having registration no. P52100014163
(hereinafter referred to as the 1st project) and Riverdale Grove having
registration no. P52100029023 (hereinafter referred to as the 2nd project).
Admittedly, both these projects are part of the same layout.

19. The respondent promoter has undertaken the 1st project on plot of land


Complaint No. CC005000000177720


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bearing Survey nos. 16/2A. 17/1 Part, 17/3 Part of Village Kharadi Dist-Pune,
by obtaining requisite permissions from the concerned competent authority
viz PMC, it has applied for registration of the said 1st project on 29-10-2017.
However, while applying for the said registration of 1st project, the respondent
has shown two buildings viz B-9 (showing residential flats) and B-8 (showing
129 car parking spaces). The said registration was applied and obtained by the
respondent by virtue of the commencement certificates (CC) issued by the
planning authority on 16-10-2017.

20. Thereafter, the respondent has revised the layout plan by adding a few
survey numbers viz Survey nos. 17/4, 17/5 and 14/1/2 (Part) of Village
Kharadi and obtained building plans and obtained revised CC from the
planning authority on 18-03-2021. As per the said revised permissions, the
respondent has applied for registration for 2nd project on 05-04-2021. In the said
project, the respondent has mentioned total 3 numbers of buildings viz B-6, B-
7 and B-8. The registration certificate was granted to the said 2nd project on 23-
04-2021.

21. The record shows that after amending the plans from the planning authority,
the respondent promoter ostensibly by showing the said modified plans of the
planning authority has obtained the requisite consent from the allottees of the
1st project and submitted the same before the MahaRERA by filing correction
application on 11-04-2022 in the 1st project thereby deleting one of the building
no. B-8 from the 1st project with change in built up area also.

22. The complainant in this case has raised the main issue that the respondent has
not obtained the consent prior to modification of the sanctioned layout plan.
Meaning thereby that earlier the said building no. B-8 was shown as parking


Complaint No. CC005000000177720


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building and subsequently it was converted into a residential building.
However, the consents for said changes were obtained later (after registration
of the 2nd project).

23. Be that as it may admittedly, the said revised permissions obtained by the
respondent was not acted upon by it till it obtained the requisite consent from
the allottees form the 1st project. Moreover, the procedure adopted by the
respondent for obtaining requisite consent for modifications in the sanctioned
layout plan and also for seeking corrections (deletion of the building no. B-8
from 1st project) seems to be a bonafide act on the part of the respondent and
not illegal as alleged by the complainant. However, the actual construction was
not started by the respondent till that time. It is ostensibly because by showing
the actual amended plans to the allottees, it has sought consent from the
allottees and that too as per the format prescribed by the MahaRERA.
Needless to state here that the application for change of built-up area and
deletion of the said building no. B-8 from the 1st project was submitted before
the concerned department of the MahaRERA and only after due verification
of the same, the said corrections application was allowed. The complainant
has not submitted any such cogent documentary proof on record of
MahaRERA to show that the respondent has illegally obtained the said
consents.

24. Be that as it may, in the present case, at this stage the MahaRERA needs to
consider the interim reliefs sought by the complainant on merits.

25. As far as the prayer sought by the complainant at para (i) as mentioned in the
aforesaid para no. 21, the MahaRERA has noticed that the complainant is
formed by the allottees of the 1st project and it is seeking injunction against the


Complaint No. CC005000000177720


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respondent promoter in respect of the 2nd project which was registered with
the MahaRERA on 5-04-2021. After obtaining the project registration for the
2nd project, the respondent has already created third party rights in respect of
the 2nd project and specifically in building no. B-8 since then and the said
information has also been uploaded by the respondent promoter on the
MahaRERA website under the sold and unsold inventory column pertaining
to the said 2nd project. The said information is readily available on the
MahaRERA website in the public domain. Still the complainant is pressing for
such injunction against the respondent in this regard. Hence, the MahaRERA
prima facie is of the view that the said prayer at (i) is now infructuous being
belated as well as for the fact that the said third parties created are not parties
to the present complaint.

26. As far as the relief sought by the complainant at para(ii) to stop the illegal
construction of the said building no. B-8, the MahaRERA is of the view that
there is no explicit provisions under RERA which empowers the MahaRERA
to issue such directions. However, the said power lies with the concerned
competent authority who grants permissions under the applicable law viz
M.R.& T.P Act, 1966. Moreoso, the complainant in this case has not made out
any case to show that the respondent has illegally obtained the requisite
permissions from the competent authority, so that the MahaRERA could have
issued direction to the competent authority to look into the said issue of illegal
construction. Hence, ostensibly for want of jurisdiction vested with the
MahaRERA, the MahaRERA is not inclined to consider the relief sought by the
complainant at para (ii) mentioned above.

27. In addition to this, as far as the main apprehension/grievance of the
complainant about providing proper car parking space to its members as per


Complaint No. CC005000000177720


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the agreements (signed with its members) /brochure, the MahaRERA is of the
view that as on date the OC for the said 1st project is not yet obtained by the
respondent. Hence, at the time of issuance of the OC for the 1st project, the
concerned competent authority will have to ensure that the respondent has
complied with all the rules / regulations / and norms (of prevailing DCR)
while implementing the said project which norms includes parking as well.
Moreover, during the course of hearing held on 21-02-2024, the respondent has
stated that adequate parkings would be provided for the allottees of 1st project
and these parkings would be in the basements / stilts under the buildings.
Hence, the respondent is bound by the said commitment made before the
MahaRERA as well. In this regard, it is pertinent to note that both the projects
are in the same layout (although registered in different phases); the members
of the complainant need to get their car parking in the project and in the
layout.

28. In view of the observations made in aforesaid para-nos. 31 and 32, the
consequential reliefs sought by the complainant at para(iii) does not survive
now.

29. As far as the other issues raised by the complainant about providing all
amenities as per brochure and the agreements for sale signed with the
members of the complainant etc these would be decided on merits in the main
complaint as per seniority including the locus standi of the complainant to file
this complaint claiming to have majority of allottees with it.


(Mahesh Pathak)
Member – 1/MahaRERA