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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

1. COMPLAINT NO. CC006000000193465

PRAMOD RAMA SUVARNA


…COMPLAINANT/S
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2. COMPLAINT NO. CC006000000193487

CHIRAG SANJAY THAKUR


…..COMPLAINANT/S
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3. COMPLAINT NO. CC006000000193496

NAVEEN KAYAKAAL


…..COMPLAINANT/S
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4. COMPLAINT NO. CC006000000193501

ANURAG SHANKER


…..COMPLAINANT/S
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5. COMPLAINT NO. CC006000000193503

VISHAL DESALE, VISHALE DESALE


…..COMPLAINANT/S
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6. COMPLAINT NO. CC006000000193507

RAHUL CHANDRASHEKAR KANCHAN


…..COMPLAINANT/S
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7. COMPLAINT NO. CC006000000193514

PRAVEEN KARKERA


…..COMPLAINANT/S
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8. COMPLAINT NO. CC006000000193519

BHARAT PATIL


…..COMPLAINANT/S
a/w

9. COMPLAINT NO. CC006000000193527

SACHIN POOJARY


…..COMPLAINANT/S

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10. COMPLAINT NO. CC006000000193535

JOSEPH ROCKEY


…..COMPLAINANT/S
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11. COMPLAINT NO. CC006000000193542

SANJAY KUMAR BAGHEL


…..COMPLAINANT/S
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12. COMPLAINT NO. CC006000000193670

SANDIPTRAMBAK AHER


…..COMPLAINANT/S
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13. COMPLAINT NO. CC006000000193674

AARADHYCHOUDHARY


…..COMPLAINANT/S

VS
GAJRA HOME MAKERS PVT LTD


..……RESPONDENT/S


MAHARERA PROJECT REGISTRATION NO. P51700004303


INTERIM ORDER


December 09th, 2024
(Date of last hearing –27.11.2024 matter was reserved for order)

Coram: Manoj Saunik, Chairperson, MahaRERA


Appearances of the parties:
Advocate Biswajeet Mukharjee present for the complainants.
Advocate Ritika Agarwal present for the respondent.

1. The complainants are home buyers and allottees within the meaning of section 2 (d)
of the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as
the “said Act”) of Real Estate Regulatory Authority (hereinafter referred to as the
“RERA”) and the respondent is registered as a promoter – developer within the
meaning of section 2 (zk) of the project namely “Bhoomi Lawns , Phase II” under
section 5 of the said Act bearing
MahaRERA Project Registration No. P51700004303

(hereinafter referred to as the “said Project”).

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2. On the MahaRERA project registration webpage the proposed date of completion is
mentioned as 30.06.2019 and the revise proposed date of completion is mentioned as

30. 12.2020. The said project i.e. the phase - II received OC on 13.09.2019 and the
society is registered on 11.09.2019. The phase - I developed by the promoter being
part and parcel of this larger plot of land on which the phase – II was developed,
received OC on 26.07.2017. It is pertinent to note that, RERA came into effect on

01. 05.2017 and as per section 3 of the Said Act, the promoter was obligated to register
with MahaRERA the phase – I as the same was squarely covered in the category of
on-going project. However, in this case the promoter has failed to do so for
whatsoever reasons and is in contravention of Section 3 of the said Act.

3. The complainants in the captioned complaints are commonly seeking the following
reliefs:
“a. This Authority be pleased to restrain the Respondent from selling the parking
space to remaining Allotees.
b.
This Authority be pleased to direct the Respondent to forthwith remove all markings
affixed to designated ownership of open parking spaces in the open compound
areas of allotees which parking has been illegally sold and / or allotted by the Respondent
to the said allottees.
c.
This Authority be pleased to order the Respondent to provide the adequate car
parking to the Complainants as per the approved layout plan.
d.
This Authority be pleased to refrain the Respondent to demand further maintenance
for the common amenities and clear all the dues like Property tax, ground rents,
LUC taxes, levy taxes, sewage tax, local taxes, municipal taxes, and other outgoings in
respect of the said Project.
e.
This Authority be pleased to direct the Respondent to produce the books of account
of such amounts paid by the allotees with respect to maintenance till date.
f.
This Authority be pleased to direct the Respondent to execute a registered
conveyance deed in favour of the society alongwith the undivided proportionate title
in the common areas to the Society within 2 months from the date of order, failing which
penalty of Rs. 1,000/- per day be made payable by Respondent to the Society till actual
date of Conveyance.”

4. The captioned complaints were heard on 27.11.2024 wherein the following roznama
was passed by this Authority:
“Sr. No. 9 to 21:
Both parties are present.

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Parties heard at length. The matter stands adjourned to 11.12.2024 @11:30am for final
hearing. The respondent submits that the matters at sr. no. 9 to 11 are not maintainable as
the project has received OC on 26.07.2017 and the matters at sr. nos. 12 to 21 are filed after
the receipt of OC. Matters at sr. no. 9 to 11 are in phase1 of the project at large. Parties are at
liberty to submit written submissions within two days, Subsequent to with the matter will be
reserved for orders on the issue of maintainability.”

5. The respondent has filed miscellaneous applications in all the captioned complaints
under the heading “Objection of the respondent and further objections of the
respondent” thereby seeking dismissal of the captioned complaints on the
preliminary grounds of maintainability. The respondent emphasised on the
following four preliminary issues in support of his claim, which are as under:
a.)
That the captioned complaints are not filed in proper format as prescribed
by the said Act as the same are unverified and unsigned.
b.)
That the promoter was not liable to register the Phase – I with MahaRERA
as the phase –I was completed and the promoter had already applied for OC
when the said Act came into force and in the intervening leeway period of
three (3) months given by the Act for registration of on-going projects from
the date of commencement of the said Act, the phase – I received OC i.e. on

26. 07.2017. Hence, the complaints having cause of action and arising from
phase – I are not maintainable as the same are not covered under the ambit
of RERA.
c.)
That the complaints covered under phase – I are wrongly filed in the said
Project i.e. phase – II as the same are not pertaining to phase - II. Thus, the
same are liable to be dismissed for having inherent technical defect in filing
of complaints.
d.)
That the captioned complaints are filed by the complainants after the receipt
of the OC and subsequent to taking possession of their respective flats. The
complaints covered under phase – I are filed by the complainants after the
lapse of three (3) years from the date of taking possession and receipt of OC,
and as such, are barred by the law of limitation. Whereas, the complaints
covered under phase – II are filed within 3 years from the date of taking
possession and receipt of OC, however the same is an afterthought.

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Therefore, liable to be dismissed as the cause of action and limitation period
to file a complaint ceases to exists under the said Act after the receipt of OC.

6. The complainants submitted as under:
a.)
That the promoter was obligated to register the phase – I with MahaRERA as
per Section 3 of the said Act and by not doing so, the promoter has violated
Section 3 of the said Act. Further, the complaints are filed online and the same
are to be filed in a project which is registered with MahaRERA by selecting that
particular project in the online complaint portal. However, as the phase – I was
not registered with MahaRERA by the promoter, the complainants covered
under phase – I had no other option but to file complaint in the phase – II project
which is registered with MahaRERA.
b.)
This clerical/technical defect can be cured by the Authority by invoking the
inherent discretionary powers under Section 38 of the said Act read along with
rule 39, 40, 41 and 43 of the Maharashtra Real Estate Regulatory Authority
(General), Regulations 2017 (hereinafter referred to as the ‘said regulations’).
c.)
That the limitation act does not applies to the provisions of the said Act and
hence the complaints are not barred by the law of limitation.
d.)
The complaints are filed online and the information is captured in the nature of
Form-A prescribed by the Authority. Whereas, the declaration is also given
online by the allottees, hence the verification and signature of the allottees is
not needed.

7. From the facts of the case and the submissions of the parties, the issue that needs to
be framed is whether the captioned complaints are maintainable?

8. With respect to the issue of claiming accrued or vested rights after the receipt of OC
and effective applicability of the said Act, the Authority shall refer to the

JUDGEMENT


passed by the Hon’ble Supreme Court, in the matter of Newtech Promoters and
Developers Private Limited v. State of UP and Others, tested and analysed the object
and application of the said Act and held that it will apply to all on-going projects and
future registered projects, with retroactive effect (i.e., effective from a prior date).

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However, projects which have been completed or which have received completion
certificates will not be under the fold of the RERA and therefore, any vested or
accrued rights in relation to such projects will not be affected. The relevant portion
of the said order is reproduced hereunder for ease of reference:
“54. From the scheme of the Act 2016, its application is retroactive in character and it
can safely be observed that 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
projects and future projects registered under Section 3 to retrospectively follow the
mandate of the Act 2016.”

9. Thus, from the plain reading of the aforementioned findings of the Hon’ble Supreme
Court, it is explicitly clear that the provisions of the said Act are retroactive in nature
and any vested or accrued rights, if any, arising from the on-going projects or the
future projects which are registered with MahaRERA can be claimed by any of the
parties. Hence, even after receipt of OC and after taking possession of the flat, an
allottee can file a complaint against the promoter for claiming this vested and accrued
rights provided under the said Act. In this particular case, the Phase 2 was an on-
going project which is registered with MahaRERA, however the phase – I of the
larger project ought to have been registered with MahaRERA as the same had not
received occupation certificate or completion certificate at the time of
commencement of the said Act. Hence the phase – I shall also be considered as an
on-going project.

10. With respect to the issue of application of law of limitation to the provisions of the
said Act, the Authority is of the opinion that the limitation Act does not applies to
RERA as the provisions of the Act are retroactive in nature and Section 89 of the said
Act which provides for having overriding effect on any other law for the time being
in force, acts as an embargo to the applicability of law of limitation to the provisions
of the said Act. This is a settled position of law and has been reiterated by the
MahaREAT in the matter of M/s Siddhitech Homes Pvt. Ltd. vs Karanveer Singh
Sachdev and Others vide order dated 27.04.2022, wherein it held that RERA does not

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provide a timeline for availing reliefs, thus the provisions of the Limitation Act, 1963
do not apply. Further, the MahaREAT emphasized that RERA's provisions override
any inconsistent statutes due to the non-obstante clause in Section 89 of the said Act.

11. Lastly, with respect to curing the clerical/technical defects in the complaints filed by
the complainants, the Authority shall invoke the inherent discretionary powers
under Section 38 of the said Act read along with rule 39, 40, 41 and 43 of the
Maharashtra Real Estate Regulatory Authority (General), Regulations 2017
(hereinafter referred to as the ‘said regulations’) in the interest of justice so as to take
the matter to its logical end after determination on merits of the case. Dismissing the
complaints on the ground of clerical/technical errors shall cause grave prejudice and
irreparable loss to the uninformed allottees. Thus, as the balance of convenience lies
in favour of the complainants, the Authority hereby grants liberty to the
complainants to amend the same in prescribed format before the final hearing on

11. 12.2024.

12. Therefore, in light of the aforementioned observation, the Authority concludes
without going into the merits of the case that the captioned complaints are
maintainable, and as such, the issue framed at para no. 7 is answered in affirmative.

ORDER

13. Taking into consideration the facts of the case, the materials placed on record, the
submissions of the parties and the aforementioned observations and findings, the
Authority passes the following order:
A.
The captioned complaints are held maintainable.
B.
Liberty is granted to the complainants to amend the captioned complaints in
prescribed format before the final hearing on 11.12.2024.
C.
List the captioned complaints on 11.12.2024 for final hearing.
D.
No order as to cost.

Manoj Saunik


Chairperson, MahaRERA
MANOJ
SAUNIK
Digitally signed by
MANOJ SAUNIK
Date: 2024.12.09
16:44:33 +05'30'