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2021 (3) TMI 1266 - HC - Companies LawJurisdiction - power to entertain the complaint as the subject project did not require registration in terms of Section 3 of the Real Estate (Regulation and Development) Act, 2016 - requirement to register the Phase of its project "Lodha Dioro" upto 40th floors - part occupancy certificate in respect thereof having been obtained/issued by the Mumbai Metropolitan Region Development Authority (MMRDA) prior to 1st August 2017 - Authority's sphere of powers to pass the necessary orders and/or directions regarding the registration of the project in terms of Section 3 read with Section 31 of the Act. HELD THAT:- The present writ petition is maintainable. It has been observed in the decision of the Supreme Court in WHIRLPOOL CORPORATION VERSUS REGISTRAR OF TRADE MARKS, MUMBAI & ORS. [1998 (10) TMI 510 - SUPREME COURT] where it was held that where the order or proceeding are wholly without jurisdiction, Writ Petition is maintainable inspite of an alternate statutory remedy. This particularly where the writ is filed showing that the authority had no jurisdiction or had purported to usurp jurisdiction without any legal foundation. Considering these decisions as well as the issues that arise in this Petition, particularly where it has been alleged that the Adjudicating Authority has wrongly and prematurely exercised its jurisdiction, which exercise of jurisdiction is in derogation to orders passed by the Authority on this issue, there is no substance in the challenge to the maintainability of this Petition and in fact this Petition is very much maintainable. From the plain language of Section 3(1) it is clear that registration must be in respect of any Real Estate Project or part of it. The window of three months in the first proviso of Section (3) (1) makes it clear that in so far as ongoing projects are concerned, the promoter has been given the said window of three months within which he can apply for registration of the said ongoing project. The ongoing project would be a Real Estate Project and/or a phase of the project which would require registration during the three months window after the commencement of Section 3 of the Act i.e. 1st May 2017. Section 3(2) (b) would apply only to completed projects that have received the completion certificate before the commencement of the Act and thus entitled to exemption from registration. Thus there is a clear distinction made between the projects 'that are ongoing projects' and 'projects which have received completion certificate before commencement of the Act' - the submission of the learned Senior Counsel for the Petitioners is submitted that the scope of the proviso to Section 3 and Section 3(2)(b) can never be the same or overlapping and that would amount to or attributing surplusage to legislature which could never have been the intention. The Respondents/Complainants inspite of having failed in its Writ Petition seeking revocation of part occupancy certificate granted to the Petitioners and directions from this Court against the Authority to register the project of the Petitioners under the Act, had filed Second Complaint before the Adjudicating Officer. This filing had been done by apparently misusing the RERA registration number of a different phase of the another project - The provision under the Act i.e. Section 59 which provides that non-registration of a real estate project is an offence & punishable therein can only apply to projects which although requiring registration have not been registered in contravention of Section 3 of the Act. The first issue viz. whether the Adjudicating Officer had no jurisdiction to entertain the complaint as the subject project did not require registration in terms of Section (3) of the Act, in the affirmative. Whether the procedure and scheme of the Act warrant that it is solely within the Authority's sphere of powers to pass necessary orders and directions pertaining to aspects of registration in terms of Section 3 read with Section 31 of the Act? - HELD THAT:- The Authority is established under Section 20 of the Act and derives its powers from Section 31 and its functions are contained in Section 34 of the Act. It has been observed in Sections 34(1) of the Act that the Authority has been entrusted with the function to register and regulate the Real Estate Projects - The power to adjudicate has been provided for under Section 71 of the Act. It is provided under that Section that for the purpose of adjudging the compensation under Sections 12, 14, 18 and 19, the Authority shall appoint in consultation with the Government one or more judicial officers as deemed necessary which is or has been a District Judge to be an Adjudicating Officer for holding an inquiry in the prescribed manner and after giving the person concerned a reasonable opportunity of being heard. Thus, the scope of the powers of the Adjudicating Officer is restricted to adjudication of compensation and only in respect of violation of Sections 12, 14, 18 and 19 - It is is thus clear from the scheme of the Act that the Authority which grants registration under the Act is different from the Adjudicating Authority. The Adjudicating Officer had no jurisdiction to determine the registration of the project or phase thereof under Section 3(1) of the Act. This was solely within the sphere of powers of the Authority to pass the necessary orders and directions pertaining to aspects of registration of the project or part thereof in terms of Section 3 read with Section 31 of the Act, being one of its functions under Section 34 of the Act. Both the issues raised in the Petition are thus decided in the affirmative - Petition disposed off.
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