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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
MAHESH CHANDRA TRIPATHI, PRASHANT KUMAR, JJ.
Larsen & Toubro Limited - Petitioner
Versus
State of U.P. and Others - Respondents
Writ - C No. 16616 of 2024
Decided On : 01-10-2024
(A) Real Estate (Regulation and Development) Act, 2016 - Sections 2(zk), 4, 5, 11, 18 - Application for registration of real estate project - Petitioner, a developer, applied for registration of Towers 1 & 2, asserting rights under Assignment Agreement and Power of Attorney - UPRERA's insistence on including landowner as co-promoter deemed unnecessary as per the Act - Application deemed registered due to UPRERA's failure to act within statutory time limits. (Paras 5, 11, 18, 34, 144, 185)
(B) Deemed Registration - Section 5(2) of RERA Act mandates that if an application is not rejected within 30 days, it is deemed registered - UPRERA's failure to act on the application within the stipulated time frame results in automatic registration. (Paras 5, 34, 185)
(C) Promoter Definition - Under Section 2(zk), a promoter can be a developer without ownership of land, thus UPRERA's insistence on landowner's co-signature is unfounded. (Paras 2, 144, 185)
Facts of the case:
The petitioner, a developer, sought registration for Towers 1 & 2 under RERA, asserting rights through an Assignment Agreement and Power of Attorney. UPRERA rejected the application, insisting on including the landowner as a co-promoter, which the petitioner contested.
Findings of Court:
The court found that the petitioner met all requirements for registration and that UPRERA's insistence on including the landowner was not supported by the RERA Act. The application was deemed registered due to UPRERA's failure to act within the statutory period.
Issues: Whether UPRERA could require the landowner to be a co-promoter and whether the application was deemed registered under RERA.
Ratio Decidendi: The court held that the definition of 'promoter' under RERA does not necessitate landownership and that the application was deemed registered due to UPRERA's inaction.
Result: The petition was allowed, and UPRERA was directed to provide registration details to the petitioner.
JUDGMENT :
1. Heard Sri Shashi Nandan, learned Senior Counsel assisted by Sri Raghuvansh Misra, Sri Shivang, Ms. Saloni Kapadia, Sri Devansh Misra, Sri Anup Shukla, Sri Asvani Tripathi and Sri Shubam Yadav, Advocates appearing on behalf of the petitioner, Sri Anil Tiwari, learned Senior Counsel assisted by Sri Mohd. Afzal and Sri Rahul Agarwal, Advocates appearing on behalf of respondent nos.2 and 3-Uttar Pradesh Real Estate Regulatory Authority, [UPRERA] and Sri R.M. Upadhyay, Ms. Uttara Bahuguna, Sri Ambrish Shukla, learned Additional Chief Standing Counsel and Sri Fuzail Ahmad Ansari, learned Standing Counsel for State-respondent.
FACTUAL MATRIX
2. Yamuna Expressway Industrial Development Authority, [YEIDA] had granted a concession in favour of Jaiprakash Industries Limited vide Concession Agreement on 07.02.2003 whereby YEIDA has agreed to transfer land admeasuring 2,50,00,000 square metres to Jaiprakash Industries Limited, for commercial, amusement, industrial, institutional and residential development, at five(5) or more locations alongside the Yamuna Expressway. In furtherance of the same, YEIDA executed various lease deeds in favour of Jaiprakash Industries Limited for a period of ninety(90) years spread out in various sectors of Noida/Greater Noida (“Lease Deeds–I”). The said lease deeds covered land measuring 248.6704 hectares (614.00 acres) in Sectors 128, 131 and 133 at Noida thereon.
3. This Concession Agreement also conferred rights in favour of the allottee/Jaiprakash Industries Limited to transfer the whole or any part of the said land, whether developed or undeveloped, by way of plots or constructed properties, or otherwise dispose of its interest in the said land or part thereof to any person in any manner whatsoever without requiring any consent or approval of YEIDA or of any other relevant authority.
4. Subsequent to the execution of the Concession Agreement, Jaiprakash Industries Limited got merged with Jaypee Cement Limited by virtue of a scheme of amalgamation and merger, which was sanctioned by this Court vide order dated March 10, 2004. Further, on March 11, 2004 the name of Jaypee Cement Limited got changed to Jaiprakash Associates Limited (JAL). By virtue of the same, all rights, interest, entitlement, benefits and obligations of Jaiprakash Industries Limited under the Concession Agreement and the Lease Deeds-I came to be vested with JAL.
5. Thereafter, in terms of the Concession Agreement, JAL incorporated a Special Purpose Company (SPC)/Special Purpose Vehicle, namely Jaypee Infratech Limited, [JIL] for the implementation of the Expressway project. All the rights and obligations of JAL, under the Concession Agreement and the Lease Deed-1 were transferred/assigned to this SPC(JIL).
6. JIL prepared a layout plan including the land use plan, road network plan, landscape plan and area charts for the development of 453 acres situated in Sectors 128, 129, 131, 133, and 134 at Noida. The same was initially sanctioned on 31.10.2007. Subsequently, the said layout plans were revised and the amended plan was sanctioned on 23.03.2011. Yet again, these layout plans were revised on 20.02.2015. The project now is known as “Jaypee Greens Wish Town”.
7. Thereafter, a registered Assignment Agreement was entered on 31.07.2017 between JIL/JAL and the petitioner as the developer, wherein the petitioner took over the development rights in respect of the Floor Area Ratio, [FAR] ("FAR") over a portion of the Development Lands. JIL/JAL after receiving Rs. 487.5 crores from the petitioner, had executed an "Assignment Agreement" on 31.07.2017.
8. In furtherance of the Assignment Agreements, an irrevocable General Power of Attorney, [GPA], was executed on 31.07.2017 by JIL in favour of the petitioner.
9. On this land, the petitioner intended to develop a project in the name of Green Reserve, which comprises of 4 Towers, Towers 1 & 2 were to be built on a plot of 12,394 square metres land bearing Group Housing Pocket No.B-24A and Towers
The definition of 'promoter' under RERA allows for developers without land ownership to register projects, and failure by UPRERA to act within statutory timeframes results in deemed registration.
Landowners are not considered promoters under RERA unless explicitly included, limiting their obligations to specified functions.
The High Court upheld that jurisdiction for RERA to adjudicate complaints exists even if the promoter lacks registration, emphasizing the rights of aggrieved parties under the Act.
Enforcement of Act, 2016, comes under the purview of ‘promoter’, as defined under Section 2(zk) of Act, 2016, and necessary compliance of pre-deposit, as enshrined under Section 43(5) of Act, 2016
The Real Estate (Regulation and Development) Act mandates registration for ongoing projects, where completion certificates are absent, emphasizing consumer protection in real estate transactions.
A landowner actively involved in a project and sharing profits can be deemed a co-promoter under RERA, thus liable for statutory deposit requirements.
The court affirmed that ongoing real estate projects must be registered under RERA to protect allottee interests, regardless of title transfer.
The main legal point established in the judgment is the retrospective or retroactive operation of RERA, 2016, and the mandatory registration requirement for ongoing projects with completion certifica....
The main legal point established in the judgment is that the delay in completion of the project was not attributable to the Lucknow Development Authority or the State Government, and further extensio....
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