The distinction between occupancy certificate and completion certificate is crucial in determining the applicability of the Real Estate (Regulation and Development) Act, 2016, and the requirement for project registration.

ORDER

Amol Rattan Singh, J. (Oral). - By this petition, the petitioner seeks issuance of a writ in the nature of 'certiorari' setting aside the proceedings pending before the Haryana Real Estate Regulatory Authority, Gurugram, in Complaint Case no.CR/6254/3831/2019 (Annexure P-3).

2. It further seeks quashing of the orders dated 22.10.2021 (Annexure P-17) and 22.02.2022 (Annexure P-20).

3. It also seeks issuance of a writ of 'mandamus/prohibition' restraining the aforesaid authority from acting in contravention of the provisions of the Real Estate (Regulation and Development) Act, 2016 (hereinafter to be referred to as the 'Act')

4. Learned counsel for the petitioner, other than arguing on the merits/demerits of the impugned orders passed by the Haryana Real Estate Regulatory Authority (Annexure P-17 and P-20), has raised a basic issue on the jurisdiction of that Authority to pass the orders, with the contention being that the petitioner having received an occupancy certificate in respect of atleast that part of the project as respondents no.2 and 3 would be concerned with, on 02.03.2017, and the RERA Act having come into effect (as regards Section 3 thereof) only from 01.05.2017, the project has to be treated to be a completed project and therefore there was no requirement for even registration of the project by the petitioner with the RERA authority in terms of Section 3; and consequently if the said respondents had any grievance qua any action of the petitioner, the appropriate forum for redressal of any such grievance would not be the respondent authority.

5. In that context Mr. Sehgal refers to Rules 2(1)(n) and 2(1)(o) of the Haryana Real Estate (Regulation and Development) Rules, 2017, which read as follows:-

'2(1)(n) "layout plan" means a plan of the colony depicting the division or proposed division of land into plots, roads, open spaces, etc. and other details, as may be necessary; 2(1)(o) 'on going project' means a project for which a license was issued for the development under the Haryana Development and Regulation of Urban Area Act, 1975 on or before the 1st May, 2017 and where development works were yet to be completed on the said date, but does not include:

(i) any project for which after completion of development works, an application under Rule 16 of the Haryana Development and Regulation of Urban Area Rules, 1976 or under sub code 4.10 of the Haryana Building Code 2017, as the case may be, is made to the Competent Authority on or before publication of these rules; and

(ii) that part of any project for which part completion/completion, occupation certificate or part thereof has been granted on or before publication of these rules.'

6. The argument therefore is that the petitioner having already applied for and obtained an occupation certificate as referred to above in terms of the Haryana Building Code, 2017, prior to 01.05.2017, there was no requirement at all to get itself registered with the Authority, it thereby being outside the purview of its jurisdiction.

7. Even prior to notice of motion having been issued, on an advance copy of the petition received, Mr. Ankur Mittal, Advocate, appears for respondent no.4, i.e. the Haryana Real Estate Regulatory Authority, and submits that there is an obvious anomaly between Section 3(2)(b) of the Act of 2016 and the aforesaid Rules of 2017, in as much as Section 3(2)(b) reads to say that it is only after a completion certificate has been obtained by a developer in respect of any particular project, before the said Act came into effect, that it would not be required to get such project registered with the Authority; but with the petitioner having obtained only an occupancy certificate and not a completion certificate, necessarily it was required to get its project registered and therefore the jurisdiction of the Authority is very much existent qua the project.

8. In that respect he also refers to paragraphs 32 to 54 as contained in the judgment of the Supreme Court in M/s N