Car parking space in open areas or stilt portions are not saleable along with the unit because they are "common areas".

 In the Matter of Yogesh Dixit vs. Manikcand Vasudha Developers (Sai Eshanya) Complaint no.CC005000000023018  decided on 03.10.2019 before Maharashtra Real Estate Regulatory Authority

MahaRERA, while dealing with the issue of car parking, relied on the judgment of the Hon’ble Supreme Court of India in the matter of Nahalchand Laloochand Private Limited vs. Panchali Co-operative Housing Society Limited. The Hon’ble Supreme Court held that under MOFA, stilt area cannot be treated as a garage and that parking areas (open to sky or stilted portion) cannot be excluded from common area and facilities under MOFA.

Accordingly, MahaRERA was of the view that the parking space in open parking area or stilt portion are not saleable along with the unit because they are "common areas".

MahaRERA further observed that the common areas are to be transferred to the society of the allottees by the developer and therefore the society vis-a-vis its members have the right to use each and every part of the common area including the open or stilted car parking space. The developer has no right to sell the stilt parking space as its control is with the society / association of the allottees.

MahaRERA directed the Complainant to form the association of allottees and initiate the revocation under section 7 of RERA, The Respondent Builder to provide the Allottee Data to the Complainants.

 In the Matter of Parkaj Vrailal Mehta & others Vs. Shree Adiraj Laxmi Builders Pvt. Ltd Complaint no.CC006000000012158 decided on 11.09.2019  before Maharashtra Real Estate Regulatory Authority

MahaRERA through its order dated 11th September 2019 directed promoter ―Shree Adiraj Laxmi Builders Pvt. Ltd‖ (Maha RERA Reg. No. P51700013358)

to enable the allottees to form an association of allottees (AOA) so the decision for initiating section 7 i.e. revocation of the project may be taken by them.

 Allottees of the project ―Adiraj Crystal‖ situated at Ambernath, Thane filed various complaints stating that the Respondent has failed to execute and register the agreements for sale, complete the Project and hand over possession. During the proceeding of the case it was found/declared that the project registration has lapsed. Further, the construction work of the project could not be completed because of reasons which were beyond the promoter‘s control. 

Authority directed the Respondent to handover the list of allottees of the said project, along with their contact details, to the Complainants within 30 days from the date of this Order, to enable the allottees to take an informed decision Pertaining to the said project and if the association of allottees may like to Proceed for revocation under Section 7/8 of the Act. 

The Respondent may seek the approval of the association of allottees for order under Section7(3)

In the similar Matter of Milind Dhande & others Vs. Housing Development and Infrastructure Ltd. Complaint no.CC006000000055794 decided on 06.08.2019 before Maharashtra Real Estate Regulatory Authority

MahaRERA ordered the Respondent to handover the list of allottees of the project ―Whispering Towers EFG Wings‖ to Association of allottees so that decision regarding revocation of registration under Section 7 of the RERA Act can be taken by them. 

Facts 

1. The Complainants have booked apartments in the project 'Whispering Towers EFG Wings' situated at Kurla, Mumbai via registered agreements for sale. The Complainants have alleged that the date of possession as stipulated by the said agreements has already been lapsed. Therefore, they prayed that since the Respondent has failed to hand over the possession of the apartments within the stipulated period, they be directed to pay interest, on delay or refund the amounts paid as per the provisions of section 18 of the Real Estate (Regulation and Development) Act, 2016. 

2. The Authorized representative for the Respondent explained that the construction work of the project could not be completed because of reasons which were beyond the Respondent's control. Specifically, he submitted that the due to financial constraints and unpaid dues of the Planning Authority and various Banks, which has extended project loans, the project has got stalled. 

3. In Complaint no. CC006000000056289, the Respondent had submitted that he is in advanced talks with another promoter/ financer and commits to revive and restart the project by April, 2019 and complete the project with occupation certificate by December 30, 2020. 

4. Since the Respondent has failed to revive the project by April, 2019 as committed, the association of Allottees may be proceeded with revocation of registration of the project under Section 7 of the RERA Act. 

5. In view of the above facts, the Respondent is directed to handover the list of Allottees of the said project, with contact details, to the Complainants within 30 days from the date of this Order, to enable the Allottees to take a decision pertaining to the said project and whether the association of Allottees may like to proceed with revocation of registration under Section 7 of the Act or not. 

6. The Respondent may seek the approval of the association of allottees for order under Section 7(3) of the said Act, as per MahaRERA Order no 7/ 2019 dated February 8, 2019 on Revocation of Registration of Project for reviving and completing the said project.

An unregistered project shall be considered at par with the project of which the registration has been cancelled otherwise the protection to association of allottees under section 8 will not be available to allottees

 In the Matter of Sabiha and Ors vs Anil Jindal, SRS Real Infrastructure Complaint no.14 of 2019 decided on 30.07.2019 before Haryana Real Estate Regulatory Authority Panchkula

• It was held by the Authority that allottees of the project have formed an association (RWA in brief) and got it registered under the Haryana Registration and Regulation of Societies Act, 2012. 

• RWA has estimated that an amount of about Rs. 6.5 crore has to be incurred to complete the project. The association having fulfilled all the tasks assigned to it by the Authority has a right to take over the project for completing it themselves and respondents were restrained for creating any third party interest in the project. 

• The project was unregistered as promoters failed to register the complaint and violated the mandate of section 3 of the Act and section 7 was applicable which deals with revocation.

•  The Authority in its order held that when a promoter fails to register the  project despite clearly being aware that he should do so, such projects must be treated at par with the projects of which the registration is cancelled by the Authority. 

• Not taking this view will create an anomalous situation and would adversely jeopardize the interest of the allottees of the project of which the promoters are deliberately refusing to finish the project. 

• Not taking such a view would also amount to saying that the protection of Section 8 is not available to the Allottees of an unregistered project. In the considered view or this Authority an unregistered project shall be considered at par with the project of which the registration has been cancelled. Having said so, now the protection of Section 8 must be granted to the allottees of the present project of the respondent.

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Flat Owners’ Association That Are Formed Due to Mandate of Law Cannot File a Consumer Complaint: Supreme Court

 A bench of Justices Mohan M Shantanagoudar and R Subhash Reddy passed their judgement while dismissing a civil appeal filed by Sobha Hibiscus Condominium against Managing Director of M/s Sobha Developers Ltd. 

The Supreme Court in its verdict held that an association which consists of members of flat owners in a building, registered compulsorily under the provisions of Karnataka Apartment Ownership Act, 1972, cannot be said to be a voluntary organisation. Therefore it cannot file a complaint under the Consumer Protection Act against any deficiency in goods or services under the welfare legislation.

This order came when two judge bench was considering an appeal against the National Commission order which rejected the complaint filed by the Association on the ground that it has no locus standi to file the complaint since neither it is a ‘consumer’ nor it is a ‘recognised consumer association’ within the meaning of Section 12 of the Act.

    In the instant case, the complainant is a statutory body under the provisions of Karnataka Apartment Ownership Act. It consists of members, who are the owners of an apartment called “Shoba Hibiscus”. The Apex Court said that it is clear from the objects of the said Act that it was enacted with a view to provide for the ownership of an individual apartment in a building to make such apartment heritable and transferable property. Once the apartments are registered under this Act, the owners, among other rights, would also get an undivided interest in the common areas and facilities of the apartment complex.

However, the mandatory provision of the law for registration of the flat owners’ association takes away its voluntariness, precluding it to invoke the consumer law. Going through the provisions of the Consumer Protection Act, the court said the statute made it clear that any recognised consumer association could file a complaint but such a group had to be of voluntary nature, registered under the Companies Act, 1956 or any other law.

The Supreme Court said that a voluntary consumer association is a body formed by a group of persons coming together, of their own will and without any pressure or influence from anyone and without being mandated by any other provisions of law.

In the said instance therefore the association formed by the members of the “Shoba Hibiscus” cannot be recognised as a consumer association because it has come into existence pursuant to a declaration which is required to be made compulsorily under the provisions of 1972 Act. Since it is not a ‘consumer’ or a ‘recognised consumer association’ within the meaning of Section 12 of the Act, it cannot file a complaint.