A promoter must fulfill advertised promises regarding amenities in a real estate project, and failure to do so requires registration under the Real Estate Act as an ongoing project.

JUDGMENT :

J. NISHA BANU, J.

1. This appeal is filed by Developer/builder praying to set aside the order dated 17.11.2023 passed in Appeal No.60 of 2023 on the file of Tamil Nadu Real Estate Appellate Tribunal (TNREAT), whereby, the Appellate Tribunal confirmed the order passed by the Regulatory Authority in C.No.66 of 2022, dated 02.03.2023 on the file of Tamil nadu Real Estate Regulatory Authority (TNRERA).

2. The developer/builder raise the following substantial questions of law for consideration of this CMSA.

(i) When the project is developed only as a residential layout project as per the approval granted by the competent authorities and exempted from registration under Rule 2(h) (iii) whether the authority under the Act is empowered to direct registration of the project under Section 3 of the Act as a gated community project.

(ii) Whether the promoter could be made liable to register the entire project as a gated community, when the purchasers of the plots have constructed their Villas by third party builder.

(iii) Whether the promoter could be held liable under the provisions of Section 11 , 12, 13 and 14 of the RERA Act, when the promoter has not constructed the Villas in the project.

3.....

(a) In this case, the complainant is M/s.Kanchipattinam Villa Owners" Association KARAI. They submitted a complaint before the TNRERA against the developer/builder viz., M/s.Colorhome Developers Pvt Ltd in respect of the residential layout called Kanchipattinam situated at Vedal Village, Karai, Kanchipuram, stating that they are builder of the Villas in the layout.

(b) It is stated that the respondent-developer advertised the project as Gated Community in media stating that the residential project is formed in 120 Acres of land with all world class 50 plus amenities. Among other amenities, 16 amenities which were promised to be provided to the gated community project within one year from the date of signing of the construction agreement, the respondent failed to provide any amenities to the buyers till date of the complaint. The said 16 amenities are as follows:-

(i) Ultra Modern Club House which includes (a) Swimming Pool (b) A/C Gym © Indoor Games (d) Badminton Court

(ii) Community Hall

(iii) Play School

(iv) Super Market

(v) Parks (with Yoga Hut & Senior Citizen Area)

(vi) Volleyball Court

(vii) Basketball Court

(viii) Cricket Pitch

(ix) Jogging Track

(x) Common Lighting

(xi) Underground Drainage/Sewerage Treatment Plan (STP)/Water

(xii) Underground water storming

(xiii) Underground Electricity Cables along with Phase E.B.Supply will be provided. Power backup vide Diesel Generator shall be provided for Community Hall and Club House.

(xiv) Drinking water pipelines.

(xv) Outer Compound wall with appropriate gates, utmose safety and hi-tech security (24x7) shall be provided for the project. However the part of the second part is prohibited to fence the schedule mentioned plot as the party of the first part shall demark the measurements and boundaries during the execution of the sale deed.

(xvi) Street lights with possible solar power/necessary power backups at the discretion of the party of first part shall be provided.

(c) The complaint also states that the project has not been completed till date; many construction activities are pending including club house and other amenities mentioned above. But the respondent had failed to register the project with TNRERA and has not obtained any exemption and hence the respondent is covered under the purview of TNRERA.

(d) It is further submitted that TNRERA by its orders dated 30/06/2021 in C.No.471/2019 had directed the respondent-builder to register the Kanchipattinam project before the TNRERA on or before 31.07.2021.However the respondent had failed to comply with the orders of TNRERA.

(e) The complainant has sought for a direction to the respondent to register the project with TNRERA and other directions such as to complete, hand over and maintain the amenities etc.

4.....

(a) In the counter affidavit filed by the r