Punjab RERA - Long unexplained delay in pursuing the matter would obviously be hit by the bar of limitation.

 In the Matter of Indra Duggal V/s Chandigarh Overseas Pvt ltd. Case no. 1769 of 2020 decided on 07.07.2021 Before The Real Estate Regulatory Authority, Punjab

Fact of the Case 

• Unit was allotted on 26.09.2014
• Date of Builder buyer agreement was on 26.09.2014
• Entire payment has also been received by the Respondent.
• Date of Possession was 30.06.2016
• Possession has not been provided

It was held by the Authority That 

• There has been a complete inaction on the part of complainant for a period of nearly 6 years till the present complaint is filed on Aug 2020.
• Such a long unexplained delay in pursuing the matter would obviously be hit by the bar of limitation.
• The Entry at Serial no. 113 of the schedule of the limitation act,1963 provides that the limitation for any proceedings for which no separate period of limitation is provided would be 3 years from the time the right to sue accrues.
• The complaint is being dismissed as being barred by limitation.

The expression "title" conveys different forms of right to a property, which can include a right to possess such property

 In the Matter of Nagen Hazarika (Deceased) ... vs Smt. Manorama Sharma AIR 2007 Gau 62 it was held by the Gauhati High court that "Title" is a broad expression in law, which need not always be understood as akin to ownership. The expression "title" conveys different forms of right to a property, which can include a right to possess such property….”

Supreme Court - The entries in jamabandi are not proof of title

 In Corporation of the City of Bangalore v. M. Papaiah and another (1989) 3 SCC 612 it was held that

 “it is firmly established that revenue records are not documents of title, and the question of interpretation of document not being a document of title is not a question of law.” 

In Guru Amarjit Singh v. Rattan Chand and others (1993) 4 SCC 349 The Supreme Court has held that 

“that the entries in jamabandi are not proof of title”. 

In State of Himachal Pradesh v. Keshav Ram and others (1996), 11 SCC 257 this Court held that 

“The entries in the revenue papers, by no stretch of imagination can form the basis for the declaration of title in favour of the plaintiff.”

The commercial advertisement cannot have the same decree of constitutional protection as in case of social or political speeches.”

 The Apex Court in Hamdard Dawakhana (WAKF) Lal Kuan, Delhi v Union of India 1960 AIR 554, 1960 SCR (2) 671 held that an advertisement is no doubt a form of speech but its true character is reflected by the object for the promotion of which it is employed. In this judgment, the court primarily relied on the judgment of the United States Supreme Court in Valentine v Chrestensen for the proposition that "purely commercial advertising" is not protected by Article 19(1) (a) of the Constitution.

In the Matter of Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal reported in (1995) 5 SCC 161 The Supreme Court held that “commercial advertisement no doubt is a form of speech but its true character is reflected by the object for promotion of which it is employed. Only when an advertisement is concerned with the expression or prorogation of ideas that it can be said to be related to freedom of expression and speech. The object and purpose for which advertisement is published is the determining factor. When propagation of ideas and thoughts is inconsequential, but the real purpose and object is the promotion of sales of goods and services and personal benefit without any social purpose, the commercial advertisement cannot have the same decree of constitutional protection as in case of social or political speeches.”

In the Matter of Real Estate Authority, Punjab on its own motion Vs. Singla Builders and Promoters limited, 6 0f 2018 Decided on 08.02.2018 the Authority Penalised the promoter for Rs. 10,000/- for not displaying the registration number in the advertisements.

In the suo moto Matter of Maharashtra Real Estate Regulatory Authority Vs. Sai Estate Consultant Chembur (P) Ltd.(Case No. 1 of 2017) the MahaRERA Authority directed the respondent who is  a registered Real Estate Agent, to withhold the advertisements with immediate effect and rectify all the hoardings by putting MahaRERA registration number on the same. The respondent was directed to  pay a fine Rs.10000/- per day of the violation and accordingly for a violation of 12 days he was directed to pay Rs.120000/-

As per Gujarat Real Estate Regulatory Authority Circular number GujRERA/ Circular/18/2020 of date 04.01.2020 , “The font size of RERA registration number and website address in the advertisements should be mandatorily equal to or larger than the contact details of the proposed project.”  

As per the  Karnataka Rera Circular “The length and breadth of the “RERA REGISTERED'' information must not be less than 10% of the length and breadth (whichever is higher ) of the advertisement issued in print media”

In the Matter of Chandra Shekhar singh Vs. Kul Developers (P) Ltd. Complaint no. AT00500000000004, The Maharashtra appellate tribunal held that when the developer has made a promise of providing 30 Feet road through its brochure and advertisement,though it was the obligation of Municipal corporation,it would become the responsibility of the promoter to provide that.

Supreme Court - the nomenclature of the document is not conclusive

 In the Matter of Namburi Basava Subramaniam vs. Alappatti Hymavathy & Others the Supreme Court, while laying down the test to determine the question whether a document is a settlement or will, held that the nomenclature of the document is not conclusive. The recitals in the document as a whole, the intention of the executant and the acknowledgment thereof by the parties are conclusive

When an objection has been taken by the other party that a document is insufficiently stamped, then, it is incumbent on part of Court to decide objection first and then to proceed further

 In M.Chinnappan V. M.Ranganathan and another, AIR 2005 Madras 105, it is held that 

'when an objection has been taken by the other party that a document is insufficiently stamped, then, it is incumbent on part of Court to decide objection first and then to proceed further

No Occupancy Certificate: Not The Only Criteria For Registration With RERA

 The Maharashtra Real Estate Regulatory Authority (MahaRERA) in its recent order has held that mere non-procurement of an occupancy certificate by a developer does not make the developer liable to register the real estate project1 under Section 3 of the Real Estate (Regulation and Development) Act, 2016 (Act).

This order has been passed following a complaint filed by Sulatana Dalal (Complainant) against Asia Group (Developer), before MahaRERA in relation to a project named as 'Miracle Mall' situated at Bhiwandi, Thane, Maharashtra. The Complainant's contention was that even though the building was completely occupied, the Developer had failed to obtain an occupation certificate and committed breach of law. Against this background, the Complainant sought directions from MahaRERA to register the building under the provisions of the Act. 

MahaRERA's Position On The Dispute

In the instant case, the Developer contended that all units of the concerned project were constructed after obtaining due permissions from the concerned authorities and all units in the building were sold to its customers prior to the commencement of the Act. Therefore, the concerned project was not required to be registered under the Act.

MahaRERA while adjudicating the dispute, looked at the pith and substance of the proviso to Section 3 of the Act. The proviso to Section 3 of the Act reads as follows:

"Provided that projects that are ongoing on the date of commencement of this Act and for which the completion certificate has not been issued, the promoter shall make an application to the Authority for registration of the said project within a period of three months from the date of commencement of this Act."

From a bare reading of the proviso, the intention of the legislators appears to clearly include all projects whose construction is ongoing and which have not received a CC. In order to fall within the premise of the aforementioned proviso to Section 3 of the Act, a real estate project is required to satisfy both these conditions – i.e., construction is ongoing and the project has not received a CC.

In the present factual matrix, the project got completed in 2012-13 and the Developer had failed to procure a CC, thereby satisfying only one out of the two conditions for registering a project under the Act. Note that the State of Maharashtra does not have a framework for issuance of a CC by its own competent authority, so the present order uses the terms 'completion certificate' and 'occupancy certificate' interchangeably.

In the instant case, the MahaRERA held that mere non-procurement of an OC will not trigger a registration requirement under the Act and dismissed the complaint with the following observations:

There was no ongoing construction activity in the project, where the Complainant resides.

The building where the Complainant resides had been occupied prior to the commencement of the Act and hence no registration under the Act is required.

If shared use of common areas is not allowed, the concept of apartments may not be workable

 In the Matter of Cap.(Retd.) Manmohan Lowe vs State Of Haryana And Others CWP No.960 of 2000 decided on 9 September, 2009 before Punjab-Haryana High Court

The High court observed that “If shared use of common areas is not allowed, the concept of apartments may not be workable as persons living on different floors require certain services in the complex itself. Purchasers of apartments are also attracted by the services available in a complex and are directly or indirectly made to pay for such services.”

Doctrine of Res Judicata , Section-11 of the Code of Civil Procedure, 1908

Section 11 of the Civil Procedure Court incorporates the doctrine of res judicata also known as “ rule of conclusiveness of judgment”.

 Res means “subject matter” and judicata means “adjudged” or decided and together it means “a matter adjudged”.

In simpler words, 

• the thing has been judged by the court, the issue before a court has already been decided by another court and between the same parties. 
• Hence, the court will dismiss the case as it has been decided by another court. 
• Res judicata applies to both civil and criminal legal systems. 
• No suit which has been directly or indirectly tried in a former suit can be tried again.

The doctrine of res judicata says –

• That no person should be disputed twice for the same reason.
• It is the State that decides there should be an end to a litigation
• A judicial decision must be accepted as the correct decision.

In the historic case of Daryao v. State of Uttar Pradesh, the doctrine of res judicata is of universal application was established. The Supreme Court of India placed the doctrine of res judicata on a still broader foundation. 

In this case, 

• petitioners filed a writ petition in the High Court of Allahabad under Article 226 of the Constitution. 
• But the suit was dismissed. 
• Then they filed independent petitions in the Supreme Court under the writ jurisdiction of Article 32 of the Constitution. 
• The defendants raised an objection regarding the petition by asserting that the prior decision of the High Court would be operated as res judicata to a petition under Article 32. 
• The Supreme Court dismissed and disagreed with the petitions.
• The court held that the rule of res judicata applies to a petition under Article 32 of the Constitution. 
• If a petition is filed by the petitioner in the High Court under Article 226  of the Constitution and it is dismissed on the basis of merits, it would be operated as res judicata to bar a similar petition in the Supreme Court under Article 32 of the Constitution

Cancellation of allotment after taking 90% of the total sales consideration is unsustainable in the eyes of law

 In the Matter of Gautam Bhatla V/s Vatika limited Complaint no.1208 of 2019 decided on 17.02.2021 before Haryana Real Estate regulatory authority, Panchkula.

it was held that " The Authority is prima facia of the view that Cancellation of allotment after taking 90% of the total sales consideration and without remitting the amount payable to the allottees after deducting earnest money, is unsustainable in the eyes of law"

The developer can only ask for VAT and Labour charges and all other charges are against the policy of AHP, 2013

 In the Matter of Sandhya Gupta V/s Adore real tech limited Complaint no. 849 of 2020 decided on 09.02.2021 before Haryana Real Estate Regulatory Authority, Panchkula.

Fact of the Matter.

Complainant booked a unit of the project being built under the Haryana Affordable Housing Policy,2013

In the Policy the Cost of Flat is fixed at the rate of Rs. 4000/- Per Sqft Carpet area and Rs. 500/- Per sq ft for the Balcony area.

At the Time to Possession the Builder demanded additional amount of rs. 1,67,073/- under the various heads of VAT,Labour Charges, Electricity Meter charges, Common area backup charges,Electricity Connection charges, Operation and Maintenance cost, Reimbursement of Electrical Infrastructure cost etc.

Ruling.

The Court held that , the developer can only ask for VAT and Labour charges and all other charges are against the policy of AHP, 2013.

Supreme Court - an executing court cannot go behind a decree and re-examine the merits of the case of the parties

 in the matter of S. Bhaskaran vs. Sebastian (dead) by LRs in Civil Appeal No. 7800 of 2014 decided on 13.09.2019 before Supreme court of india.

The suit 

• Temple was administered by three brothers. 
• Vide a settlement deed these original owners endowed the property to the temple. 
• The deed also included a provision that the eldest son of the deceased trustee would become his successor. 
• A suit was filed on behalf of the temple by the Appellant in his capacity as trustee, seeking permanent injunction against Gnanambal and her husband, who were tenants in the suit properties at that time. 
• One Umapathymurthy was impleaded in this suit as a defendant who claimed that he was the eldest son of one of the original owners and that he had been dispossessed from the trusteeship of the temple by his younger brother.
• The Trial Court decreed the suit in favour of the Appellant holding that he was a trustee and rejected the claim of Umapathymurthy. 
• The said decree was affirmed by the first appellate court. 
• The decree holders subsequently filed an Execution Petition. 
• However, the judgment debtors (Respondents herein) filed an execution application under Section 47 of the CPC seeking dismissal of the execution petition on the basis that the original decree was vitiated by fraud as the heir certificate was falsely prepared. 
• The said application under Section 47 of CPC was dismissed by the executing court as non-maintainable on the ground that the judgment of the Trial Court had been confirmed by the First Appellate Court after considering all relevant evidence, and had therefore become final. 
• The said order of the executing court was challenged in revision before the High Court where the said order was reversed.

Held by Supreme Court

• The Supreme Court disagreed with the view of the High Court and reiterated that it is well-settled that an executing court cannot travel beyond the order or decree under execution. 
• In the present case, the Trial Court had already considered the evidence on record and given a finding that the Appellant was the trustee of the temple.
•  This judgment was confirmed by the First Appellate Court and no further appeal was preferred by the Respondents against it. 

Therefore, an affirmed decree could not be varied now at the stage of execution.

when there is a conflict between the provisions of the Act, Rules and Regulations framed thereunder, the Act will prevail.

 in the matter of National Stock Exchange Member vs. Union of India & Anr.125(2005) DLT 165.

The Delhi High court held that 

when there is a conflict between the provisions of the Act, Rules and Regulations framed thereunder, the Act will prevail. and if there is a conflict between the Act, Rules and Regulations on the one hand, and the circular on the other, the former will prevail and the latter becomes ultra vires

in the matter of M/s. Hiralal Ratanlal vs. STO, AIR 1973 SC 1034, the Apex Court observed:

"In construing a statutory provision the first and foremost rule of construction is the literaly construction. All that the Court has to see at the very outset is what does the provision say. If the provision is unambiguous and if from the provision the legislative intent is clear, the Court need not call into aid the other rules of construction of statutes. The other rules of construction are called into aid only when the legislative intent is not clear."

The Hon‟ble Apex Court in case Prakash Nath Khanna vs. C.I.T. (2004)9 SCC 686 has laid down that the language implies in a statute is the determinative factor of the legislative intent.

Provisions of the special Act always override the provisions of the general law

 In the Matter of M/s Apex Buildwell Pvt. Ltd. V/s Sachin Kumar,Appeal No.240 of 2019 decided on 09.02.2021 before THE HARYANA REAL ESTATE APPELLATE TRIBUNAL it was held that

"We do not find any substance in the contentions raised by learned counsel for the appellant that in order to claim the compensation for delay in delivery of possession, the respondent /allottee was required to establish the loss suffered by him as provided in Section 74 of the Indian Contract Act, 1872. The provisions for grant of damage on account of the breach of contract provided in Section 74 of the Indian Contract Act are the general provisions. Whereas Section 18 of the Act is a special provision dealing with consequences on account of the failure of the promoter to complete the project by the date specified in the agreement for sale. The proviso to Section 18(1) of the Act categorically provides that where an allotee does not intend to withdraw from the project, he shall be paid by the promoter the interest for every month of delay till handing over of the possession at such rate as may be prescribed. Thus, the proviso to Section 18(1) of the Act stipulates that the allottee shall be entitled to interest at the prescribed rate for the delay in delivery of possession beyond the date stipulated in the agreement for sale. It is nowhere mentioned in Section 18 of the Act that in order to claim the interest for delayed delivery, the allottee has to prove the loss. Simple failure of the promoter to deliver the possession by the date specified in the agreement for sale, will make the allottee entitled for the interest provided in the proviso to Section 18(1) of the Act. It is settled rule of interpretation that the provisions of the special Act always override the provisions of the general law. So, the provisions of the Act will override Section 74 of the Indian Contract Act which is the general law."

The interest provided in proviso to section 18(1) of the Act is the return for his money used by the promoter

 In the Matter of M/s Apex Buildwell Pvt. Ltd. V/s Sachin Kumar,Appeal No.240 of 2019 decided on 09.02.2021 before THE HARYANA REAL ESTATE APPELLATE TRIBUNAL it was held that

“the interest is a premium paid for the use of money. Ordinarily a person who is deprived of his money to which he is legitimately entitled as of right is entitled to interest for the period his money is used by the other person.”

it was also held that

“the interest provided in proviso to section 18(1) of the Act is an interest simplicitor which is available to an allottee who does not intent to withdraw from the project as a return for his money used by the promoter, who caused delay in the delivery of the possession. Thus, the interest for delayed possession cannot be construed to be the compensation in strict sense to fall within the purview of Sections 71 and 72 of the Act read with rule 29 of the Rules.”

Primary rule of construction is that the intention of the legislature must be found in the words used by legislature itself.

 In the Matter of Mukund Dewangan Vs. Oriental Insurance Company Limited complaint no.CIVIL APPEAL NO.5826 OF 2011  decided on 3 July, 2017 before SUPREME COURT OF INDIA

Hon‟ble Apex Court has also laid down that 

• the first and primary rule of construction is that the intention of the legislature must be found in the words used by legislature itself. 
• Each word, phrase or sentence is to be construed in the light of the general purpose of the Act itself. 
• The interpretation of the provisions of law depends upon the text and context.
•  The text is the texture and the context is what gives colour and neither of them can be ignored. 
• That interpretation is best which makes the textual matching contextual.

Supreme Court - WB-HIRA is repugnant to the RERA, and is hence unconstitutional

 In the Matter of Forum for People’s Collective Efforts (FPCE) & Anr. V/s The State of West Bengal & Anr.Writ Petition (C) No. 116 of 2019 decided on 04.05.2021 

The Apex court held that 

“83. For the above reasons, we have come to the conclusion that WB-HIRA is repugnant to the RERA, and is hence unconstitutional. We also hold and declare that as a consequence of the declaration by this Court of the invalidity of the provisions of WB-HIRA, there shall be no revival of the provisions of the WB 1993 Act, since it would stand impliedly repealed upon the enactment of the RERA.

The project completion means that it must be completed in all respects and the entire project was handed over to the respective buyers

 In the Matter of M/S.Sare Shelters Project Pvt. ... vs Sare Squires C.M.S.A.No.27 of 2020 decided on 16.02.2021 before THE HIGH COURT OF MADRAS, the High court held that “The project completion means that it must be completed in all respects and the entire project was handed over to the respective buyers and all the original documents are handed over to the apartment owners association. Therefore, the builder cannot enter thereafter into the project premises as they lost their legal rights except with the permission of the owners or with reference to the agreement, if any, between the parties.

In the Matter of Subashini Thulasiram vs M/S.Spr & Rg Constructions C.M.S.A.No.22 of 2019 decided on 15 September, 2020 before THE HIGH COURT OF MADRAS it was held by the high court that  “The application for completion certificate without environmental clearance certificate is a defective application and in the eye of law, it cannot be called as an application for completion certificate…… The State Level Environmental Impact Assessment Authority cannot issue post facto environmental clearance certificate”,

P&H High Court - The intent of the advisory issued by the Government of India was certainly not to accommodate such defaulters

 The Ministry of Housing and Urban Affairs (MOHUA) in its Office Memorandum dated 13 May 2020 (Advisory) has declared the current pandemic as a force majeure event for the purposes of Real Estate (Regulation and Development) Act 2016 (RERA) and extended the timelines for registration and completion of real estate projects.

The circular dated 13.5.2020 issued by Real Estate Regulatory Authority, Punjab (RERA) whereby it extended the period of validity of registration of projects by six months was challenged in the Punjab and Haryana High Court in the Matter of Vinod Kumar v. Union of India and others CWP-8781-2020 decided on dated 30.06.2020 whereas the High court held that “we are not impressed by the argument. We fail to understand the need for passing a omnibus order giving protection to all the projects in State of Punjab, particularly when the Act has a specific provision for entertaining an application on behalf of the promoter/builder for extension of time. There is no doubt that 'Force Majeure' clause can be invoked for this purpose. However, the applicant who would approach the RERA would have to convince it that he has been forced by circumstances beyond his control to continue with the Project. Surprisingly, the circular may even give protection to those promoters/builders whose registration may have expired long back. The intent of the advisory issued by the Government of India was certainly not to accommodate such defaulters. We, thus, find something palpably wrong with the circular. Thus, operation of impugned circular dated 13.5.2020 (Annexure P-1) is hereby stayed.

P&H High Court - Authority has no power or jurisdiction to reduce the time period mentioned in the declaration

 In the Matter of M/S Parador Developers ... vs Real Estate Regulatory Authority RERA Appeal No.19 of 2020 decided on 27 November, 2020 before THE HIGH COURT OF PUNJAB AND HARYANA

Fact of the Matter

• Vide request dated 13.10.2017, the appellant sought permission for change of land use of an area measuring 93.265 acres for development of a residential colony. 
• The Department of Town and Country Planning, Punjab, granted permission for change of land use vide its memo dated 17.10.2017. 
• Consequently, an application for grant of licence was made to the Amritsar Development Authority, who, granted the licence vide its memo dated 13.06.2019. Licence period was 5 years ending on 12.06.2024. 
• Thus, application dated 10.09.2019 was filed before the Real Estate Regulatory Authority, Punjab (hereinafter referred to as the 'Authority) for registration of Phase-I of the residential colony under the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as 'the Act'). 
• A declaration in Form-B was also filed stating that the development 1 of 8 work would be completed on or before 12.06.2024. 
• Phase-I was registered but the validity thereof was reduced by one year i.e. upto 12.06.2023. 
• The appellant sought a clarification and vide memo dated 13.11.2019. 
• The Authority clarified that registration was uptill 12.06.2023 only as the group housing component was not being executed in Phase-I. 
• Thus, the appellant filed a statutory appeal before respondent No.2 but the same has been dismissed vide order dated 03.07.2020.  (This Order is published on this blog on 18.05.2021)
• Hence, the present appeal has been filed under Section 58 of the Act.

Order of the High Court 

 It is held that the Authority has no power or jurisdiction to reduce the time period mentioned in the declaration. If it feels that the period mentioned is arbitrary or unacceptable due to any reasons, a notice to show cause for rejection of the application must be given.

The sole member of the RERA Authority & RERA APPETITE Tribunal does not have jurisdiction to dispose of order and appeal.

 In the case of man global limited vs ram prakash joukani (Second Appeal No. 14840 Of 2019 Alongwith Civil Application No. 785 Of 2019) the Bombay high court observed that “the sole member of the said Tribunal does not have jurisdiction to dispose of appeal or any application including even an application for condonation of delay in filing appeal.”

Reliance was made on the earlier matter of Neelkamal Realtors Suburban Pvt. Ltd. and Anr. (2017 SCC OnLine Bom9302) where the Bombay high court has held that two member bench of the Tribunal shall always consist of a judicial member. It is also held that in the constitution of the Tribunal, the majority of the members shall always be judicial members.

In the matter of Altus Space Builders Pvt. Ltd vs Union Of India And Others CWP No.32437 of 2019 decided on 16 October, 2020 before Punjab & Haryana High Court the Court struck down Regulations 7 and 8 of the Punjab RERA Procedure Regulations as being ultra vires the Act.

the Court ruled that “A Single Member of the Authority cannot validly pass orders on a complaint under the Act.” 

the Court also ruled that “A Single Member of the Appellate Tribunal cannot validly pass orders in the appeals before it.”

Supreme Court - High Court would be justified in admitting the second appeal only when a substantial question of law is involved

 In the case of Gurudev Kaur and others -vs- Kaki and others [(2007) 1 SCC 546, the Apex Court held that after the 1976 Amendment, the scope of Section 100 has been drastically curtailed and narrowed down, according to the amended section,

(i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved;

(ii) The substantial question of law to precisely state such question;

(iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal;

(iv) Another part of the Section is that the appeal shall be heard only on that question".

It was also held by the Apex court that 

(i) On the day when the second appeal is listed for hearing on admission if the High

Court is satisfied that no substantial question of law is involved, it shall dismiss the

second appeal without even formulating the substantial question of law;

(ii) In cases where the High Court after hearing the appellate is satisfied that the

substantial question of law is involved, it shall formulate that question and then the

 appeal shall be heard on those substantial questions of

law, after giving notice and opportunity of hearing to the Respondent;

(iii) In no circumstances the High Court can reverse the judgment of the trial court

and the first appellate court without formulating the substantial question of law and

complying with the mandatory requirements of Section 100 Code of Civil Procedure".

in the matter of Nazir Mohamed Vs. J.Kamala and others, 2020 (3) RCR (Civil) 684 wherein after examination of precedents, it has been held:-

"32. To be "substantial", a question of law must be debatable, not previously settled

by the law of the land or any binding precedent, and must have a material bearing on

the decision of the case and/or the rights of the parties before it, if answered either

way."

Bombay High Court - A license does not create any title in favour of the licensee

 In the Matter of Suresh Malappa Shetty Vs. Special recovery officer, 2002 SCC Online BOM 1054; (2003) 3 Mah LJ 248

A license is treated to be in permissive possession only and possession is regarded to be with the licensor always. This usually happens in the case of joint development agreement / Collaboration agreement / License agreement and it is noteworthy that a license does not create any title in favour of the licensee

Supreme Court - The Authority owed a duty to explain and to satisfy the Court, the reasons for such high Cost escalation.

In the Matter of  Indore Development Authority vs Smt. Sadhana Agarwal & Ors 1995 SCC (3) 1, JT 1995 (3) 1  decided on 7 March, 1995 before Supreme Court of India

The Apex court held that " It is well known -that persons be- longing to Middle and lower Income Groups, before registering themselves for such flats, have to take their financial capacity into consideration and in some cases it results into great hardship when the development authorities announce an estimated or approximate cost and deliver the same at twice or three of the said amount."

it also observed that " The final cost should be proportionate to the approximate or estimated cost mentioned in the offers or agreements With the high rate of inflation, escalation of the' prices of construction materials and labour charges, if the scheme is not ready within the time frame, then it is not possible to deliver the flats or houses in question at the cost so announced. It will be advisable that before offering the flats to the public such development authorities should fix the estimated cost of the flats taking into consideration the escalation of the cost during the period the scheme is to be completed, "

"In the instant case , the estimated cost for the LIG flat was given out at Rs.45,000/-. But by the impugned communication, the appellant informed the respondents that the actual cost of the flat shall be Rs. 1,16,000/- i.e. the escalation is more than 100%. The High Court was justified in saying that in such circumstances, the Authority owed a duty to explain and to satisfy the Court, the reasons for such high escalation"

Supreme Court - an allottee does not obtain a vested right of allotment on a draw of lots.

 In the Matter of Delhi Development Authority vs Pushpendra Kumar Jain, Appeal (civil) 6205 of 1994 Decided on 23 September, 1994 before Supreme Court of India

Their Lordships have laid down the following principles:

(i) an allottee does not obtain a vested right of allotment on a draw of lots. The system of drawing of lots is only a mode, a method, a process to identify the allottee i.e. it is a process of selection. It is not allotment by itself. Mere identification or selection of allottee does not clothe the person selected with the legal right to allotment at the price prevailing on the date of draw of lots;

(ii) since the right to flat arises only on the communication of the letter of allotment the price or rate prevailing on the date of such communication is applicable unless otherwise provided in the scheme;

(iii) the scheme does not prescribe the period within which allotment has to be communicated from the date of draw of lots. It has of course to be done within a reasonable period

The Villas and Independent floors constructed on individual plots will also fall under the definition of the “Apartment”

 The Punjab Real Estate Regulatory Authority through the notification RERA/ENF/03 dated 24.01.2018 clarified that

"the Villas and Independent floors constructed on individual plots will also fall under the definition of the “Apartment”.

Supreme Court - Stand alone “Garage” as an independent unit by itself is not a ''Flat”

 In the Matter of Nahalchand Laloochand P.Ltd vs Panchali Co-Op.Hng.Sty.Ltd CIVIL APPEAL NO. 2544 OF 2010. Decided on 31.08.2010 Before Supreme court of india

it was also held that Stand alone “Garage” or in other words “Garage” as an independent unit by itself is not a ''Flat” .

Once an expression has been defined in the Act, that expression wherever it occurs in the Act,rules, orders, bye laws and notifications issued thereunder, should be taken in the same sense

 In the Matter of Prestige Engineering India ltd. Vs. Collector of Central Excise, 1994(48) ECC 203, 1994 (73) ELT 497 SC, JT 1994(5) ,

The Apex Court observed that “Once an expression has been defined in the Act, that expression wherever it occurs in the Act,rules, orders, bye laws and notifications issued thereunder, should be taken in the same sense”

In the Matter of S.Sundaram Pillai Vs. V.R. Pattabiraman, AIR 1985 SC 582 the Apex Court Observed that  “If a definition is provided to an expression, then the courts are not free to construe the expression otherwise, unless it is so warranted by the context”

A person having agreement to sell in his favor does not get any right in the property except the right to litigation on this basis

 In the Matter of Mohinder Kaur Vs. Sudarshan Krishnamurthy First Appeal (OS) No.197 of 1991 decided on 26.03.1992 Before DELHI HIGH COURT

it was held that “It is true, that under section 54 of the Transfer of Property Act a person having agreement to sell in his favor does not get any right in the property except the right to litigation on this basis.”

The Apartment or the Flat has to be a separate and self-contained which is used or intended to be used for residence or office, showroom or shop or godown or for carrying on industry or business.

 In the Matter of K.R. Agarwal vs Balkrishna Jawar And Anr. AIR 1972 Bom 343 Before Supreme court of India decided on 21.09.1971

it was held that There are three main ingredient of the term “Flat”

1. be separate and self contained set of premises

2. Be such that it can be used for or intended to be used for residence, shop or godown or for carrying out any industry, business or garage;

3. Form a part of the building

In the Matter of Nahalchand Laloochand P.Ltd vs Panchali Co-Op.Hng.Sty.Ltd CIVIL APPEAL NO. 2544 OF 2010. Decided on 31.08.2010 Before Supreme court of India

again it was held that “ the set of premises (The Apartment or the Flat) has to be a separate and self-contained which is used or intended to be used for residence or office, showroom or shop or godown or for carrying on industry or business.

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