Sumant Kolhe, Member (J)

Order Challenged

1. Appeal preferred under Section 44 of Real Estate (Regulation & Development) Act, 2016 (in short "RERA") takes exception to the order dated 22nd March 2018 passed by the learned Chairperson MahaRERA in Complaint No. CC006000000012120.

Status of parties

2. The Appellant is Allottee. The Respondent is Promoter. The Appellant had filed Complaint against Respondent. I will refer the parties as per their status in the Appeal.

3. Factual matrix of the Appeal is as under.

Particulars of old property to be redeveloped

"G.P. Nair family trust" was the owner of the immovable property bearing city survey No. 564 along with building "Nair Mahal" standing thereon at Mahim, Mumbai. By the deed of conveyance dated 16th July, 2008 executed and registered by the parties, Respondent became the owner of the said property for consideration and terms and conditions mentioned therein.

4. Appellant is the tenant of office premises No. 14 in "Nair Mahal" (for sake of brevity referred as "old unit" hereinafter). She carries business in name and style as "M/s. Konark Enterprises".

Parties agreed for Re-development

5. Respondent being the owner, decided to Re-develop the said property by demolishing the old building. Respondent approached to Appellant (tenant) and offered premises in new building in lieu of "old unit" on the ownership basis free of costs. Appellant accepted the offer and gave consent for redevelopment of the property. Appellant and the Respondent recorded terms and condition agreed between them by executing agreement for development. It is styled as "Permanent Alternate Accommodation Agreement" (in short PAAA) and registered on 12th March, 2013.

Agreement for Re-development (PAAA) & for compensation/rent

6. Respondent agreed to complete the construction work of new building within 36 months from date of receipt of commencement certificate. Respondent is entitled for 12 months grace period to complete the construction if Respondent fails to complete the construction for reasons beyond his control. Various terms and conditions of the transaction as agreed between the parties are reduced in writing in agreement (PAAA). Parties executed supplemental agreement on 15th March, 2013. Respondent agreed to pay monthly compensation/rent to Appellant as mentioned in the said supplemental agreement.

Respondent failed to complete the construction of new building and to handover the possession of new premises to Appellant as per agreed date. Respondent is under obligation to pay the monthly compensation/rent to Appellant as per supplemental agreement. Appellant issued notice through an advocate to Respondent and demanded possession of new premises along with compensation/rent as agreed in supplemental agreement. Respondent failed to give possession and pay compensation/rent. Appellant preferred complaint against Respondent before MahaRERA.

Decision of MahaRERA

7. MahaRERA conducted inquiry. After hearing both the sides, MahaRERA disposed of the Complaint and rejected the prayer of Appellant for possession and compensation/rent by observing that the Appellant falls in the category of Promoter and Appellant failed to prove violation of any provision of the Act or rules and regulations made there under and there is no "agreement for sale" between the parties.

8. Being aggrieved by the order, Appellant has challenged propriety, correctness and legality of the decision in this Appeal.

9. Heard learned counsel for both the sides. Perused the written submissions and case law filed on record. Read the papers. Perused the impugned order.

10. Following points arise for my determination.

POINTS

i) Whether Appellant is Allottee as defined under Section 2(d) or Promoter as defined under Section 2(zk) of RERA

ii) Whether Respondent failed to give possession of new premises as per agreed date and to pay compensation/rent as per supplement agreement to Appellant

iii) What order

11. My findings on the above points for the reasons stated below are as under.

FINDINGS

i) Appellant is Allottee as defined under Section 2 (d) of RERA.

ii) Affirmative.

iii) As per final order.

REASONS Material facts of the dispute

12. "Nair Mahal" was the old building standing on the city survey No. 564 at Mahim, Mumbai. The Respondent became the owner of the said property as per deed of conveyance. The Appellant is the tenant of office premises No. 14 in Nair Mahal. She carried business in the said premises.

13. Respondent decided to demolish old building and to re-develop the property, Respondent offered new premises in new building in lieu of old unit on the ownership basis free of cost to Appellant and Appellant gave consent for same. Accordingly, Respondent and Appellant executed and registered agreement for development which is styled as the "Permanent Alternate Accommodation Agreement" on 12th March 2013 (for sake of brevity, referred as "PAAA"). Terms and conditions of transaction as agreed between the parties are incorporated in "PAAA". Respondent also executed supplemental agreement and agreed to pay the compensation/rent to Appellant. Respondent failed to complete the construction of new building and to handover possession of new premises to Appellant as per agreed date in "PAAA". Respondent further failed to make the compliance of supplemental agreement by paying the compensation/rent to Appellant as per the agreed terms. So, Appellant has raised the dispute before MahaRERA by filing the Complaint. MahaRERA conducted inquiry and held that Appellant is not an Allottee in this re-development project of Respondent and there is no violation of any of the provision of Act or rules and regulations and there is no agreement for sale between the parties.

Concept of Redevelopment

14. The purpose of "Real Estate Project" launched by the Respondent is of "Re-development". However, it involves marketing, advertising, selling or new allotment of apartment. So, this "Re-development" project is not exempted from registration with "Real Estate Regulation Authority" as per Section 3 (2) (c) of RERA. Respondent registered the "re-development" project under RERA. Thus, project launched and registered under RERA by Respondent consists of the sale component and the rehab component. Respondent is entitled to adverse, market, sell or offer for sale the units of sale component in this project. Real issue involved in the dispute is as to whether flat taker (occupant of old building) is Allottee in the project of re-development as per Section 2(d) of RERA. Flat taker in sale component is an Allottee of Respondent as defined under Section 2(d) of RERA. Similarly, flat taker in rehab component in lieu of old unit on ownership basis is also an Allottee of Respondent as defined under Section 2(d) of RERA for the following reasons.

As per Section 2(d) of RERA, Allottee in relation to real estate project, means the person to whom plot or apartment or building has been allotted, sold or otherwise transferred by Promoter.

Promoter has three options for giving apartment to the Allottee.

i) Allotment.

ii) Sell.

iii) Otherwise transfer.

15. Above mentioned three categories are having different and separate legal meaning. Depending upon the nature of the transaction, person taking the plot or apartment may fall under one of the above three categories.

Allotment to Appellant

16. In the instant case new premises are allotted to the Appellant in lieu of his old premises on ownership basis free of cost. So, transaction of new premises in new building is of "allotment". Now, let us see the document if any, executed by Respondent in favour of Appellant for allotment of new premises in lieu of old premises on ownership basis free of costs. Appellant and Respondent have entered into the agreement for development namely "Permanent Alternate Accommodation Agreement" (PAAA) it is at page No. 25 of Appeal memo. "PAAA" executed and registered by the parties is governed by provisions of Maharashtra ownership Flats Act, 1963.

Clause (60) of PAAA reads as under.

"This agreement shall to the extent it is mandatory be subject to the provisions of Maharashtra Ownership Flats Act, 1963 and Maharashtra Ownership flat Rules 1964 and modification amendments, re-developments thereof for the time being in force or any other provisions of law applicable thereto."

"PAAA" consists of 65 clauses. Those are terms and conditions agreed between the parties regarding allotment of new premises in lieu of old unit. In clause 12 of "PAAA" there is reference of allotment of new premises to the Appellant, It recites that Appellant (tenant) shall be allotted commercial premises on 2nd/3rd floor. Similarly, in clause 25 of "PAAA" there is reference of allotment of new premises to the tenant. It recites that the new premises to be allotted to tenant. It can be said from clause 12 & 25 of "PAAA" that Respondent agreed to allot new premises to Appellant in lieu of old tenanted premises on ownership basis free of costs.

Considering the nature of transaction between Respondent and Appellant allotting new premises in lieu of old premises on ownership basis free of cost in re-development project, I am of considered view that the person taking new premises in lieu of his old tenanted premises is Allottee as defined under Section 2(d) of RERA.

Agreement for sale (AFS) in sale-component equivalent to PAAA in Re-hab component

17. This project consists of sale component and rehab component. Project is duly registered under RERA. For the person taking flat in sale component of this project, "agreement for sale" (ASF) is executed whereas for the person taking flat in rehab component, "Permanent Alternate Accommodation Agreement" (PAAA) is executed. Flat takers in sale-component are new purchasers. Flat takers in rehab component are occupants of old building which is to be demolished and redeveloped.

Consideration may be money/kind

18. Flat taker in sale component will be getting new premises on ownership basis for consideration of money. Similarly, flat taker in rehab component will also be getting new premises on ownership basis for consideration in kind i.e., giving their old premises. Flat taker in re-hab component may be tenant of premises or owner of premises. In case of, tenant flat taker will be surrendering tenancy rights. I would like to point out that consideration for getting the flat on ownership basis in such real estate project of redevelopment may be in terms of money or in terms of kind.

Observations of the Hon'ble Bombay High Court

I would like to refer observations of their Lordships of the Hon'ble Bombay High Court in the matter of M/s. Renaissance Infrastructure V/s. Parth B. Suchak & Anr. Second Appeal (stamp) No. 92626 of 2020 decided on 25th September, 2020.

Those observations are as under:-

"It may be that the Allottee was an erstwhile partner of the Promoter firm and agreement was executed with a view to satisfy the Allottee's claim towards his share in the partnership upon his retirement. That does not however make the agreement any the less an agreement for sale. After all, consideration of an agreement for sale, instead of money, may well be any valuable consideration including satisfaction of the Allottee's share in the Promoter's partnership. It is nevertheless an instance of allotment and sale of, constructed premises with land, its consideration being satisfaction of the Allottee's claim in the business and assets of Promoter partnership."

Considering above observations on the point that consideration may be money or in kind, I am of the opinion that in present case, the transaction of allotment of new premises in lieu of old unit is instance of sale of new premises, its consideration being tenancy rights of the Appellant in respect of old unit.

Terms and conditions similar in PAAA & AFS

We can compare "agreement of sale" executed for sale component with agreement of "Permanent alternate Accommodation" executed for re-hab component. In the instant case if we carefully peruse 65 clauses in "PAAA" it is revealed that those are the terms and conditions agreed between Respondent and the Appellant regarding the transaction of allotting new premises in lieu of old premises on ownership basis. Now terms and conditions recited in "PAAA" are similar to those which are recited in the "agreement for sale". In both the agreements, terms and condition are in respect of the date of handing over possession, grace period if any for handing over possession, particulars of the new premises including area, flat no., floor no., name of the new building etc., list of amenities that are given by the Respondent, obligation of Respondent to handover possession of new premises, and to form the co-operative housing society of Allottees in the project to execute conveyance deed etc. So, it can be easily said on basis of common terms and conditions in both types of agreement that the transaction as evident from agreement for sale in respect of the sale component is similar and identical to the transaction of giving new premises in lieu of old premises on ownership basis free of costs to the tenant or old occupant of the old building. I reiterate that only the consideration paid or given is different in both the categories. Consideration may be money or in kind. Thus, flat taker in rehab component is on the same footing as that of flat taker in sale component in real estate project. There cannot be any discrimination between flat taker in rehab component and flat taker in sale component in the Real Estate project. I would like to point out that some statutory rights under RERA are exclusively given to the flat takers sale component and not to the flat taker in rehab component of real estate sector. For example, if project is not completed or possession is not given as per agreed date, fiat taker in sale component may be entitled to withdraw from the project and exercise statutory right of claiming refund with interest but flat taker in re-hab component cannot exercise such right because the consideration in respect of the transaction in rehab component is not in terms of money and so no question of refund with interest as per Section 18 of RERA arises. Similarly, flat taker in sale component is entitled to claim interest on delayed period of possession as per Section 18 of RERA and not the flat taker in re-had component as consideration paid in rehab component is not money. However, as far as other statutory rights and obligations of Allottees in the project are concerned, flat taker in rehab component and flat taker in sale component being "Allottee" as defined under Section 2(d) of RERA are equally entitled to enjoy the same.

RERA came into force with effect from 1st May, 2017. MOFA was in force prior to enactment of RERA. MOFA is not repealed. It is in force as on today also. RERA is social and beneficial legislature. Object of RERA is to protect the interest of consumers. Consumer is the person who enters into the transaction for purchase of flat from developer in real estate project. It may be the flat of re-hab component or sale component. In the ordinary course of nature, we will not come across with any re-development project launched by developer without the element of sale of apartments therein. Only, in self-redevelopment project, there will be no element of sale as it is launched by occupants of old building for their own purpose. So, self-redevelopment project may not be registered under RERA. Once element of sell is involved in real estate project it is accompanied with issuance of advertising, prospectus etc., for inviting the public to purchase units in real estate project. As per statutory mandate seen from definition of "Real Estate Project", under Section 2 (zn) of RERA, the only purpose of launching the project is to sale all or some of the apartments/plots. Thus, real estate project will always be accompanied with element of sale. So, every real estate project of re-development launched by demolishing old building by the developer consists of rehab component and sale component.

Obligation and duties of parties in sale and Rehab component are similar

19. It cannot be ignored that obligation of Promoter regarding amenities and facilities provided in the project are common to all the flat takers irrespective of sale component or rehab components. Obligation of Promoter in forming co-operative housing society is also common to all flat takers in both components. Promoter has to form co-operative housing society of the flat takers in rehab component and the flat takers in sale component of that project. There cannot be two separate co-operative housing societies for sale component and for rehab component in re-developing project. Thus, flat taker in sale component and flat taker in rehab component in the real estate sector is on same footing as Allottee under RERA, though some of rights and duties under the Act may be exclusively for entitlement of Allottees in sale component of the project.

20. As per Section 14 (3) of RERA Promoter is under obligation to rectify structural defect or defect in workmanship, quality of provision or services within a period of five years from the date of handing over possession to Allottee. Section 14 (3) of RERA applies to all of Allottees is irrespective of fact that they are of sale component or rehab component of the project. Duties to be performed by Promoter as per Section 11 (4) (b) (d) (e) (f) of RERA towards Allottee in the project are towards Allottees of both component of the project. Similarly, duties of Allottees towards Promoter are to be performed by Allottee of both component under Section 19 (1), (3), (9), (10) and (11) of RERA.

Thus, performance of duties by Promoter towards Allottees or vice versa are common to sale component and rehab component of the real estate project.

Judgement of Tribunal on "PAAA"

The learned counsel for Respondent relied on judgment of Bench of this Appellate Tribunal comprising of Chairperson and Administrative Member in case of Shrawankumar Pardeshi V/s. Sagar Shopping Developers in which it is concluded that agreement for "Permanent Alternate Accommodation" would not fall within the ambit of RERA. He submits that in the instant case also "PAAA" executed between Appellant and Respondent will not attract the provisions of RERA.

21. At the outset, I would like to point out that conclusion was arrived at on the basis of facts and circumstance of that case. Section 13 of RERA was involved in that matter. Prayer for execution of agreement for sale under Section 13 of RERA was sought on the basis of "Permanent Alternate Accommodation" between the parties. It was concluded that the prayer for executing the agreement for sale under Section 13 of RERA cannot be granted on the basis of "PAAA". There is no prayer in the instant case for execution of the agreement. So, the decision of the Bench of this Tribunal as referred above is not helpful to Respondent in the present case.

Ratio of Lavasa case

The Hon'ble Bombay High court has laid down in Lavasa Corporation Pvt. Ltd. V/s. Jitendra Jagadish second Appeal stamp No. 7197/2011 decided on 26th July, 2018 that the agreement for lease for 999 years is as good as an agreement for sale under RERA and provisions of RERA are applicable to the transactions based on agreement of lease for long period between the parties.

22. Learned counsel for Appellant submits that the principle laid down in Lavasa case law treating an "agreement for lease" equivalent to the "agreement for sale" under RERA and application of provisions of RERA to the "agreement of lease" between the parties is equally applicable to the present matter and "PAAA" can be accepted and treated as "agreement for sale" in real estate project. I find substance in this submission. Definition of "agreement for sale" as defined under 2 (c) of RERA is that agreement for sale is an agreement. Now, if agreement of lease is treated and acted upon as agreement of sale as per ratio of Lavasa case law, the same principle can be very well applied to say that "PAAA" in respect of re-hab component can be treated and acted upon as "agreement for sale" in real estate project.

Liability to pay compensation/rent

23. Appellant and Respondent have executed supplemental agreement. Respondent agreed to pay compensation/rent to Appellant as per the said supplemental agreement. Terms of supplemental agreement are binding on the both the parties. Respondent has failed to handover possession of the flat as per agreed date to Appellant. So, Appellant is entitled to demand compensation/rent as agreed by Respondent in supplemental agreement. So, it is necessary to direct Respondent to pay compensation/rent to Appellant as per supplemental agreement dated 15th March, 2013.

Conclusion

24. For the reasons stated above, I conclude that every "Re-development" project involving element of sell i.e., sale component is the "Real Estate Project" as defined under Section 2(zn) of RERA and its registration under Section 3 of RERA is mandatory. Whenever Re-development involves demotion of old building/structure, ordinarily it consists of sale component and re-hab component. Flat takers in sale component and flat takers in rehab component of the "real estate project" are Allottees and they enjoy equal rights in respect of their "apartments". So, flat takers in both components of "re-developed" project are Allottee as defined under Section 2(d) of RERA. "PAAA" of flat takers in re-hab component and "AFS" of flat takers in sale-component is an "Agreement" as defined under Section 2 of RERA. Flat taker in rehab differs from flat taker in sale component on the point of giving consideration in terms of kind (old unit) instead of money. In case, flat taker in re-hab component gets additional area against old unit, he has to pay consideration in money for such additional area only. So, manner of giving consideration by such flat taker in re-hab component will be in kind and also in cash. However, status of such flat taker as "Allottee" remained the same. So, by no stretch of imagination, flat taker of re-hab component can be legally branded as "Promoter" under RERA. It will be against the intentions of legislature in enacting RERA with object of protecting the interest of consumer in "real estate sector". Thus, Appellant is Allottee as defined under Section 2(d) of RERA.

Respondent failed to give possession on agreed date to Allottee. So, Respondent is liable to pay compensation/rent to the Allottee as agreed in supplemental agreement. I answer the point Nos. 1 & 2 accordingly.

25. I allow the Appeal and set-aside impugned order and proceed to pass following order.

ORDER

i) Appeal is allowed.

ii) Impugned order is set-aside.

iii) Complaint No. CC006000000012120 is allowed as under:

a) Promoter shall pay compensation/rent to Allottee as per terms and conditions of supplementary agreement dated 15th March, 2013.

b) Promoter shall pay cost of Rs. 10,000/- to Allottee and shall bear his own cost throughout.

iv) Copy be sent to both the parties and MahaRERA as per Section 44(4) of RERA.

(SUMANT KOLHE)

S.S. Sandhu, Member (Ad.)

26. With utmost respect to my learned brother, I wish to record my views on the matter under consideration in disagreement with the view taken hereinabove.

Appeal is targeted against order dated 22.03.2018 passed by Chairperson, MahaRERA (hereinafter referred to as 'the Authority') in the complaint filed by Appellant.

27. Put briefly, factual matrix of the case is that according to Appellant, she is the tenant in respect of the office premises No. 14 in the building, 'Nair Mahal' located at Mahim, Mumbai being redeveloped by Respondent (Developer) as 'Ruparel Iris'. Vide permanent alternative accommodation agreement (PAAA) dated 12.03.2013 Appellant was allotted a premises in lieu of aforesaid office premises in the building. Further, pursuant to a supplemental agreement dated 15.03.2013 Developer agreed to pay monthly compensation for the rent in lieu of temporary alternative accommodation during the period of construction. Developer paid compensation till April, 2016. Construction was not completed till 2016 as agreed. Appellant requested Developer to pay Rs. 14,54,410/- as compensation for the year beginning from April, 2017 to March, 2018. Developer failed to pay the same. Upon this, Appellant filed complaint with the Authority seeking compensation under Section 18 of RERA.

28. The Authority heard the parties and passed the impugned order on 22.03.2018. Relevant extract of the order is reproduced as under:

"2. Section 2(zk) (i) of the said Act reads as thus:

"Promoter" means, - (i) a person who constructs or causes to be constructed an independent building or a building consisting of apartments, or converts an existing building or a part thereof into apartments, for the purpose of selling all or some of the apartments to other persons and includes his assignees;

Therefore, a person who causes to be constructed a redeveloped building and is allotted premises in lieu of the existing premises in the building that is being redeveloped, is a 'Promoter' in the said project. The present Complainant fails in this category of Promoter.

3. The advocate for the Complainant when asked to explain the Section of the Act or rules or regulations made thereunder which are violated necessitating a direction from MahaRERA, referred to Section 11(4) of the Act. However, Section 11(4) lays down the responsibility of the Promoter towards allottees as per agreement for sale.

4. The dispute as such is therefore, between two Promoters. In the case there is no agreement for sale and therefore Section 11(4) is not violated. The issue of non-payment of rent cannot be construed to be a violation of Section 18 of Act either.

5. Therefore, no directions can be given under the provisions of the Real Estate (Regulation and Development) Act, 2016 or the rules or regulations made thereunder, for payment of rent. The matter is disposed of accordingly."

Feeling aggrieved by the above order, Appellant has preferred this Appeal.

29. Learned counsel for the parties have been extensively heard in the matter. They also submitted written as well as oral submissions and case law in support of their contentions. Learned counsel for Appellant primarily made submissions as follows:

(i) Impugned order erroneously holds that a flat taker in rehab component of a redevelopment project being a co-promoter is not covered by provisions of RERA and consequently not entitled to file complaint before the Authority.

(ii) Impugned order solely relies upon definition of Promoter under Section 2(zk) of RERA and fails to consider other provisions having material bearing on the matter.

(iii) Flat takers in rehab component of a redevelopment project are put to more hardship, inconvenience and uncertainty as compared to flat takers in sale component for having to vacate their existing premises, delayed possession, non-payment of transit rent etc. In the circumstances, it is patently absurd and inconceivable that legislature intended to exclude flat takers in rehab component from the ambit of beneficial legislation of RERA.

(iv) Two hat principle' applies to a flat taker in rehab component as per which as an individual he adorns hat of a Promoter and that of an Allottee upon execution of PAAA and supplemental agreement entitling to a new flat in the newly constructed building.

(v) On examining the statement of objects and reasons and Sections 2(c) and 2(d) and 2(zn) of RERA, in the light of the Purposive and Mischief Rules of Interpretation to remove absurdity of applying Literal Rule of Interpretation, it is quite apparent that flat takers in rehab component of a redevelopment project are also covered under definition of allottee under RERA.

(vi) Statement of Objects and Reasons sets out that RERA was enacted for the consumer. 'Consumer' is defined under Section 2(d) of Consumer Protection Act, 1986 (Consumer Act) as someone who buys something for consideration. 'Consideration' defined widely under Section 2(d) of Indian Contract Act, 1872 (Contract Act) includes even 'nonmonetary' aspects. In the present case, a flat taker receives a larger premises to live in and in consideration the developer gets rights to utilise Floor Space Index (FSI) and Transfer Development Rights (TDR). Therefore, on conjoint reading of Sections 2(c) and 2(d) of RERA, flat takers in the rehab component fall under the term 'consumer' used in the Statement of Objects under RERA.

(vii) An agreement for sale, as per Section 2 (c) means an AFS between promoter and an allottee. Promoter is defined under Section 2(zk). An allottee defined under Section 2(d) means someone whom a flat is either 'allotted', 'sold' or 'transferred' except only an apartment or plot, as the case may be given on rent. The use of words 'allotted' and 'transferred' in Section 2(d) indicates that rehab component of redevelopment project is also covered under this definition since on vacation of a smaller premises, a person is 'transferred' or 'allotted' a larger premises. Similarly, 'Agreement for Sale' as defined under Section 2 (zn) does not necessarily include 'price' contrary to the Section 54 of Transfer of Property Act. Therefore, the word 'selling' or 'sold' for the purpose of RERA need not include price and consequently, a PAAA not containing the word 'price' also comes within the fold of 'AFS' as defined under Section 2 (c) of RERA. Accordingly, a flat taker in a rehab component squarely falls within the provisions of RERA.

(viii) By registering the project under RERA, Promoter herein has submitted itself to jurisdiction of RERA and cannot claim that RERA Provisions are applicable to a particular aspect of the project and not to the component which is subject matter of the complaint under consideration.

30. In support of his contentions with regard to Purposive and Mischief Rule of Interpretation and harmonious construction of provisions of RERA, learned counsel for Appellant relies upon certain case law. Reliance is also placed on judgment of the Hon'ble High Court in Lavasa Corporation Vs. Jitendra Jagdish Tulsiani (2018) 5 AIR BOM R 553] wherein agreement of lease is held to be covered under RERA provisions.

31. Per contra, learned counsel for Developer argued that as rightly held by the Authority in the impugned order Appellant falls in the category of promoter in terms of definition of Section 2(zk) (i) of RERA. It is further contended that reliefs for rent and inspection of premises as sought in the Complaint are not provided under RERA and particularly Section 18 which only envisages reliefs of refund, interest and/or compensation in case of failure to hand over possession as per 'agreement for sale'. Similarly, it is submitted that Section 2(za) also provides for interest payable as prescribed from the date of receipt of payment by Promoter till the amount is refunded as applicable. It is contended that in clause 8 of PAAA, no consideration is mentioned or payable and the same cannot be construed as 'AFS' to extend benefits under RERA.

32. Promoter pointed out that under provisions of Section 3(2) (c) the redevelopment projects have been clearly taken out of the ambit of RERA and therefore there being no absurdity and ambiguity in the relevant provisions of RERA, Mischief Rule or Purposive Rule of Interpretation have no relevance as erroneously emphasised on behalf of Appellant. It is also submitted that in the judgment of Lavasa Corporation Vs. Jitendra Jagdish Tulsiani (2018) 5 AIR BOM R 553] agreement of lease was held to be an AFS and therefore the same is inapplicable to the case in hand wherein neither AFS or nor any consideration is involved. It was also argued that from the reading of PAAA and supplemental agreement, the Appellant is nothing but a tenant and cannot wear the hat of an Allottee as per two hats principle relied upon by Appellant. Promoter averred that the judgment of Coordinate Bench of this Tribunal in the case of Shrawan Kumar Pardeshi has a binding effect on this Bench and needs to be followed.

33. In rejoinder, learned counsel for Appellant submitted that Section 3 (2) (c) cannot be construed in a manner to take rehab component out of the purview of RERA. It is further submitted that mere non-payment of money or consideration cannot deprive a flat taker in rehab component of entitlement provided under Section 18 of RERA. It was contended that provisions of RERA were given a narrow interpretation in the case of Shrawan Pardeshi and RERA being a remedial legislation requires to be applied liberally to all situations concerning the real estate sector.

34. Having considered the submissions of the parties and on perusal of record it is found that the controversy in this Appeal lies in a very narrow compass. From the factual matrix of the case, the only point that arises for consideration is as to whether Appellant, a flat taker in rehab component of a redevelopment project falls within the purview of RERA for granting reliefs as sought under Section 18 of RERA. In my view, the answer is in the negative for the reasons to follow.

35. My finding as above is based fundamentally on the premise that projects that involve 'sale of real estate' as provided under RERA are only liable to be registered to attract application of provisions of RERA and consequently to grant reliefs contemplated thereunder. Simply put, until there is an element of sale in a project, there is no requirement for such a project to be registered to apply provisions of RERA. This signifies that 'sale' forms the key ingredient for holding a real estate project or a part thereof liable to be registered so as to bring it within the purview of RERA provisions. The intent of the legislature to that effect is writ large in various provisions of RERA including the Preamble when read and considered conjointly as is demonstrated hereinafter.

36. The Preamble of RERA signifying the intent of the legislature as above is reproduced hereunder for the sake of convenience and better appreciation.

"The following Act of Parliament received the assent of the President on the 25th March, 2016 and is hereby published for general information:-

An Act to establish the Real Estate Regulatory Authority for regulation and promotion of the real estate sector and to ensure sale of plot, apartment of building, as the case may be, or sale of real estate project, in an efficient and transparent manner and to protect the interest of consumers in the real estate sector and to establish an adjudicating mechanism for speedy dispute redressal and also to establish the Appellate Tribunal to hear appeals from the decisions, directions or orders of the Real Estate Regulatory Authority and the adjudicating officer and for matters connected therewith or incidental thereto........."

37. A bare perusal of the preamble makes it evident that chief object and purpose of RERA is to regulate and promote real estate sector by ensuring that 'sale transaction' in relation to real estate sector in its various manifestations is conducted in an efficient and transparent manner so that interests of the consumers are protected. The regulatory and adjudicatory mechanisms are envisaged to be established under RERA in accordance with the aforesaid purpose. So, the intent clearly signifies that RERA concerns itself only where sale transactions in relation to real estate project are involved.

38. Non only the Preamble, necessity for having the sale element for application of RERA is reflected in various provisions of RERA also. Chief among these provisions is Section 3 which mandates any project to be registered so as to bring the same within the jurisdiction of RERA. It provides that promoter shall not advertise, market, book, sell or offer for sale or invite persons to 'purchase' real estate in any project without registering the project under RERA. It may be explained that advertisement, publicity, marketing etc. are nothing but steps taken towards and with an intention to effect the sale. So RERA makes it mandatory that prior to undertaking activities such as advertisements, publicity etc. for effecting 'sale' a project has to be necessarily registered. Conversely, it means that until there is a sale or publicity, advertisement etc. undertaken to effect the sale, registration of a project is not required and therefore, until there is 'sale', RERA provisions would not apply.

Conforming to the above view, the legislature under Section 3(2) (c), consciously and expressly exempted the redevelopment project from requirement of registration on the specific ground that it does not involve marketing, advertising, selling or new allotment of any apartment, plot or building, as the case may be, under the real estate project.

39. As commonly understood, any 'sale' inherently conceives a transaction between a 'buyer' and a 'seller'. Buyer and seller are defined as 'allottee' and 'promoter' under Section 2(d) and 2(zk) respectively under RERA. The transaction between an allottee and promoter is executed via 'agreement for sale' defined under Section 2 (c) of RERA. It may be seen that the element of sale is central to the interrelation between an allottee and promoter. AFS is recognised as a very crucial stage in the transaction between an allottee and promoter. Under Section 13 it is mandatory for a promoter to execute a written AFS before accepting amount more that 10% of the total price. Similar provision for accepting more than 20% amount also existed under Section 4 of MoFA. AFS also requires promoter to provide a schedule of payment so as to foist obligation of timely 'payment' on an allottee who is allotted flat on booking. Further, an AFS is prescribed as the basic document under Section 18 of RERA for granting reliefs i.e., (i) refund of paid amount with interest and/or compensation on withdrawal from the project. (ii) interest and/or compensation on paid amount till actual possession, in case Promoter fails to deliver possession as per the terms of AFS or by the date specified therein.

40. Contrary to the above requirements specified under RERA, the element of sale is completely missing in the transactions relating to redevelopment projects. No advertisement, publicity or marketing etc. is required to be undertaken as no sale is contemplated under redevelopment project. So, question of agreement for sale is inconceivable in relation to such projects. For the precise reasons provided specifically and expressly in Section 3 (2) (c), the redevelopment projects are taken out of the purview of RERA by exempting them from registration.

41. It is also observed that nature of instrumentalities and kinds of reliefs contemplated under redevelopment project are also different from real estate projects which fall within the purview of RERA. Except AFS, RERA does not recognise the instruments such as PAAA and supplemental agreements relating particularly to the domain of redevelopment projects. Section 18 neither recognises such instruments for holding an allottee entitled to reliefs provided thereunder nor it recognises the reliefs of the nature such as rent or compensation in lieu thereof during construction of the projects as provided in the contractual instruments relating typically to redevelopment projects. Absence of provisions to recognise such instrumentalities and nature of reliefs associated thereto itself provides enough indication that RERA does not concern itself with the redevelopment projects.

42. Learned counsel for Appellant submitted that 'consumer' is defined under Consumer Act as someone who buys something for consideration. However, he further contended that since 'consideration' under Section 2 (d) of Contract Act also includes 'non-monetary' aspects, the flat taker in rehab component, even though not required to pay any amount, falls in the category of a consumer whose interest are sought to be protected as provided expressly in the Preamble. This contention is erroneous and meritless. It is settled legal position that terms used in an enactment are required to be interpreted and applied in line with aims and objects of that particular enactment only. Proposition to applying the said terms in the same way in the context of another legislation is fraught with danger of defeating the very purpose of the enactment to which they are sought to be applied. In this regard, it is clearly seen that the term 'consumer' used in Preamble of RERA is in the context of someone whose interests in transactions relating to 'sale of plot' or as the case may be, sale of project are sought to be protected by RERA in a transparent and efficient manner. Therefore, in no uncertain terms, I hold that a flat taker in a rehab component is not a consumer as contemplated in the Preamble of RERA and consequently he cannot be held entitled for any reliefs under RERA.

43. By referring to the words, 'Allotted' and 'transferred' under Section 2(d) of RERA, Appellant seeks to contend that a flat taker in a rehab component is also an 'allottee' whom a new flat/premises is 'allotted' or 'transferred' in lieu of vacation of flat held earlier by flat taker. It is also contended that as per 'two hats principle' apart from one hat donned as Promoter, being member of the society, a flat taker in rehab component wears another hat as an allottee and therefore such a flat taker falls within the purview of RERA. This argument is completely misconceived and without any substance. As observed earlier, allottees for the purpose of RERA are only those persons whose sale transactions are witnessed in the form of agreement for sale and who perform their obligations of paying consideration for the 'purchased' real estate. As flat takers in rehab component neither pay any consideration nor execute any sale transactions, they cannot be equated with buyers of real estate envisaged to be covered by RERA. Such flat takers cannot be covered under provisions of RERA and therefore the aforesaid contentions being meritless cannot be accepted.

44. Relying upon view taken by the Hon'ble Bombay High Court in para 82 of the judgment in Lavasa (supra), Appellant contended that having registered the project under Section 3 of RERA, the developer has subjected itself to the jurisdiction of RERA and therefore developer cannot claim that RERA is not applicable to the flat takers in rehab component. This argument is based on erroneous understanding of the project structure and misconstruction of the provisions of RERA. It is well known that redevelopment is taken of the existing building which is already occupied. Redevelopment normally can be of two kinds. In the Redevelopment simplicitor project of the first kind, inhabitants undertake redevelopment themselves or through some contractor but for exclusive use of the erstwhile inhabitants only. As observed earlier, since no sale is involved such a project is not required to be registered and in the result, RERA would not apply.

45. The another kind or variant of redevelopment is of a hybrid nature. In this erstwhile occupants or members cause the redevelopment by appointing a developer as is the case of matter in hand. Such a project has two components (i) rehab component and (ii) sale component. In such projects, developer normally provides free of costs permanent alternate accommodation to erstwhile occupants and in lieu of that gets incentivised FSI/TDR to construct sale component. Developer is allowed to sell units in sale component to subsidise cost of units of rehab component meant for original members/tenants. As the project involves sale of unit in sale component, such a project is required to be registered. Liability to register arise only on account of sale component. However, as the sanction is accorded to the project comprising of two components as above, the entire project mandatorily requires registration. It is often misconstrued, as does the Appellant herein, that on registering such a project, RERA applies to the entire project including the rehab component. This kind of interpretation of provisions is not legally correct. As expressly provided under Section 3 (2) (c), since redevelopment project is exempted from registration, RERA provisions would apply only to sale component and not to rehab component upon registration of a redevelopment project of hybrid nature. Lavasa judgment would not apply to this Appeal as the facts and question of law involved in both the cases are dissimilar and distinguishable.

46. Before parting with the judgment, it is observed that contentions by Appellant to apply Purposive Rule and Mischief Rule of Interpretation to the relevant provisions of RERA is irrelevant and misplaced. As per cardinal law of interpretation, it is settled that if the language is simple and unambiguous, the words of a statute must be understood in their natural, ordinary or popular sense until such construction leads to an absurdity. In the observations hereinabove, harmonious consideration is given to various provisions of RERA keeping in view the object and purpose for which RERA is promulgated. No ambiguity is found in the relevant provisions of RERA and question of any absurdity on interpretation thereof does not arise. Therefore, for the detailed reasons hereinabove Appellant herein being a flat taker in rehab component of a redevelopment project cannot be held entitled to reliefs sought for by her under RERA.

47. In view of the above observations, I do not have even an iota of doubt in holding that stand alone redevelopment project or rehab component of a redevelopment project of hybrid nature do not fall within the purview of RERA and flat taker Appellant in rehab component is not entitled to any reliefs as provided under RERA. In the result, I do not find any infirmity in the impugned order and accordingly it does not call for any interference in Appeal. Hence the following order.

ORDER

i) Appeal is dismissed.

ii) Impugned order is confirmed.

iii) Complaint No. CC006000000012120 is rejected.

iv) Parties to bear their own costs.

v) Copy of this order be sent to MahaRERA and both the parties as per Section 44(4) of RERA.

We have differed in our views on the issues under consideration in this Appeal. Learned Registrar to take necessary steps to place the matter before the Chairperson.