Case Law Details
Air Force Naval Housing Board Air Force Station Vs U.P. Real Estate Regulatory Authority And Another (Allahabad High Court)
The word ‘promoter’ has been deliberately used by the legislature in the proviso to sub-section (5) of Section 43, as subsection (5) provides a remedy of statutory appeal to any person aggrieved by the direction or decision of an authority to file appeal before the Tribunal, but in case of a ‘promoter’ the mandatory deposit has to be made prior to the entertainment of the appeal by the Tribunal.
The purpose of insertion of such provision is to safeguard the innocent home buyer who has deposited his hard earned money with the developers/promoter and in case of failure of the project or the project getting delayed and on his complaint, the authority directing for refund of the amount with interest, the promoter is obliged to deposit the same before his appeal is heard. In Neelkamal Realtors Suburban Pvt. Ltd. And Anr. (supra), Bombay High Court while upholding the validity of the provisions of Sections 3, 4, 4(2)([)(D), and 18 had clearly observed and held that these provisions are there for safeguard of the home buyers.
Sri Ashish Singh has tried to impress upon the Court that the present project was an ongoing project and 70% amount, as was required to be deposited under Section 4(2)([)(D) was not done as it was to be complied in case of fresh registration after enforcement of the Act, 2016 does not help his case, as in the present case the order passed by the authority was under challenge before the Appellate Tribunal and mandatory requirement of proviso to sub-section (5) of Section 43 was not complied with and the Tribunal rejected the appeal. The Act nowhere makes distinction between requisite and mandatory deposit in case of filing an appeal by a promoter whose project was ongoing at the time of implementation of the Act, or it was a case of fresh registration of the project subsequent to the enforcement of the Act. The insertion of proviso to Section 3 was to safeguard the interest of the home buyers, who had deposited their hard earned money with the developer/promoter prior to enforcement of the Act that project was required to get registered with the authority in case of non issuance of Completion Certificate / Occupancy Certificate.
Had the promoter got the Completion Certificate from the local authority, as provided under the Act, there was no need for getting the project registered after enforcement of the Act, 2016. But, as the project was not completed, the legislature required the promoter for registration of project to safeguard the interest of the home buyers. Had not the Government enacted Act, 2016 and required the promoter to get his project registered, the contesting respondents in these bunch of appeals would have been running from pillar to post to get possession of their flats or for refund of the money. The litigation before the Civil Court would have taken years to get their hard earned money back. It is through this legislation that the Government had restricted the arbitrary actions of the builders/developers.
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