H.C. Kishore Chandra, Chairman

1. These complainants are filed are filed under section 31 of the RERA Act against the project "MAHAVEER PALATIUM" developed by "M/s. REDDY STRUCTURES PRIVATE LIMITED" for the relief of direction to the respondent to complete pending amenities and compensation.

2. The details of each complaints are as under;

(i) CMP/220107/0008873: The complainant have booked a plot no. 358 measuring East to West 30 Sq.ft. and North-South 50 Sq.ft. (totally measuring 1500 Sq.ft.) in the project "Mahaveer Palatium" of the respondent by entering into an agreement of sale dated 4th November 2017. The promoter has agreed to complete the entire project containing all amenities in the project within August 2019 and hand over the possession of the plot. Thereafter, the respondent/promoter has executed the sale deed in favour of the complainant on 30th August 2018. It is contended that there is a legal issue over Sy. No. 12 at Mahaveer Palatium in Jigani. Though the builder is aware of this legal issue, he started registration of Sy. No. 12. This case was registered in 2009 vide case number 326/2009. When he talked to the builder, he said that this issue would be resolved in 6 months but whereas this issue is not solved yet. The builder also committed that his present would be replaced with other plot in the same project in the month of June 2021, but now he is denying. Due to this legal issue, he may not be able to construct the house in the said plot. The complainant has approached this Authority seeking for the relief of refund with interest.

(ii) CMP/220122/0008850: The complainant has booked a plot no. 1718 measuring 30 x 50 (totally measuring 1500 Sq.ft.) in the project "Mahaveer Palatium" of the respondent by entering into an agreement of sale dated 2nd February 2021. The promoter has agreed to complete the entire project containing all amenities in the project on or before August 2019 and hand over the possession of the plot. Thereafter, the respondent/promoter has executed the sale deed in favour of the complainant on 15th February 2021. The project was sold and marketed as a roman theme place. The roman theme does not exist at the moment and also project amenities including basic facilities have not been delivered. Electricity, water was not provided to all the plots. Foot paths not in place. Plots are not levelled, not enough pumps for overhead tank. Water body not set up. Multiple sites have no access roads. Legal issues pending on property which has remained unsolved. The Mahaveer team has been given multiple promises and excuses but there is no progress of work. The complainant has approached this authority seeking for the relief of direction to the respondent to accelerate project completion.

(iii) CMP/220122/0008850: The complainants have booked a plot no. 1012 measuring 40 x 50 (totally measuring 2000 Sq.ft) in the project "Mahaveer Palatium" of the respondent by entering into an agreement of sale dated 24th April 2017. The promoter has agreed to complete the entire project containing all amenities in the project on or before August 2019 and hand over the possession of the plot. Thereafter, the respondent/promoter has executed the sale deed in favour of the complainant on 12/5/2017. "Mahaveer Palatium is a Roman theme based gated community project was supposed to be completed by 2019. The builder with all the fake promises during the sale pitch to complete within 6 months has trapped all the buyers including him to buy the plots and convinced to omit from the agreements. It is contended that the builder has already diverted from "ROMAN" theme amenities which was the primary attraction to them and all buyers. The project is rattled with many legal issues which the builder has never opened up and sold such plots which is causing a lot of trouble to many of the owners. The builder is also not responding to their emails. The current layout condition is pathetic like jungle and their plot is not maintained properly. Amenities like road, club house, foot path, plot marking, plot number, plot levelling has not been completed. The complainant has approached this Authority for the relief of direction to the respondent to complete the project will all promised amenities and to pay compensation.

(iv) CMP/220122/0008851; The complainants have booked a plot No. 678 measuring 1500 Sq.ft in the project "Mahaveer Palatium" of the respondent by entering into an agreement of sale dated 8th September 2017. The promoter has agreed to complete the entire project containing all amenities in the project on or before August 2019 and hand over the possession of the plot. Thereafter, the respondent/promoter has executed the sale deed in favour of the complainant on 7th October 2017. "Mahaveer Palatium" is a Roman theme based gated community project was supposed to be completed by 2019. The builder with all the fake promises during the sale pitch to complete within 6 months has trapped all the buyers including him to buy the plots and convinced to omit from the agreements. It is contended that the builder has already diverted from "ROMAN" theme amenities which was the primary attraction to them and all buyers. Further, the project is rattled with many legal issues which the builder has never opened up and sold such plots which is causing a lot of trouble for many owners. Plot No. 656 and 657 were to him by Mahaveer builders, hiding the fact that it was under active litigation. They are unable to sell or use the plots in any way. The builder is non-committal on all the promises made to impact the plot owners. The complainants have approached this Authority seeking for the relief of direction to the respondent to refund their amount along with compensation.

(v) CMP/220124/0008856: The complainants have booked a plot No. 880 measuring 40 x 50 feet (totally measuring 2000 Sq.ft) in the project "Mahaveer Palatium" of the respondent by entering into an agreement of sale on 23rd February 2019. The promoter has agreed to complete the entire project containing all amenities in the project on or before December 2019 and hand over the possession of the plot. Thereafter, the respondent/promoter has executed the sale deed in favour of the complainant on 2nd March 2019. The builder had kept on promising the different date of completion of the project but still there is no progress. The builder has stopped taking the queries and stopped answering the calls or emails. Many amenities were promised by the builder including club house, parks, sports area, water body, out of which nothing is visible. The complainants have approached this Authority for the relief of direction to respondent to pay interest on loan till the date of final completion.

(vi) CMP/220125/0008865 The complainant has booked a plot No. 685 measuring 2000 sq.ft. in the project "Mahaveer Palatium" of the respondent by entering into an agreement of sale dated 13/12/2017 with the respondent. The promoter has agreed to complete the entire project containing all amenities in the project on or before August 2019 and hand over the possession of the plot. Thereafter, the respondent/promoter has executed the sale deed in favour of the complainant on 13/12/2017. The respondent has sold this plot that already had legal issues from 2009. He is paying the bank loan EMI from 2017. The complainant has approached this Authority for the relief of direction to the respondent for completion of the project with all promised amenities, interest on delay period and interest paid to loans.

Hence, these complaints.

3. The common grievances of the complainants against the respondent is that, the project Mahaveer Palatium has been developed by the respondent on several survey numbers viz., 9, 10, 11, 12, 13/1, 14/1, 14/2, 14/3, 15, 16, 24/1, 24/3, 25/1, 25/2, 26/1, 26/2, 27/1, 27/2, 27/3, 28/2, 28/3, 29, 30, 31, 33/1, 33/2, 34, 35, 37, 38/1, 38/2, 39, 40/1, 40/2, 40/3, 40/4, 42 all situated at Giddenhalli Village, Jigani Hobli, Anekal Taluk and Sy. No. 24, 25, 26 situated at Mahanthalingapura Village, Jigani Hobli, Anekal Taluk, totally measuring 121 Acres 23.08 Guntas. The respondent/promoter has formulated a scheme to develop the composite property into residential gated community contained around 1752 plots of different dimensions, accordingly layout plan was procured from Anekal Planning Authority on dated: 29-04-2014 vide Order No. LAO/05/13-14. The respondent/promoter had relinquished the park, civic amenities and Road to the Member Secretary, Anekal Planning vide relinquishment deed dated: 28-04-2014 vide Doc. No. 569/2014-15.

4. The complainants have also stated that, the Anekal Planning Authority had released 40% of sites on dt: 29-04-2014 vide No. APA/LAO/05/2013-14: Thereafter the planning authority had released 30% of sites on dt: 11-08-2016 vide order No. APA/LAO/05/2013-14 dt: 11-08-2016. During the course of procurement of the sanction plan, some of the survey numbers are involved in legal issues. Due to the said pendency of the the litigations, the project could not be completed in its entirety and all the purchaser of the sites carved out of the litigated survey numbers suffered mental harassment and trauma due to non-disclosure of the complete information by the Respondent/Promoter and to the concerned authorities.

5. The complainants have also alleged that, without completing the promised amenities, the respondent/promoter had executed the sale deeds in favour of the complainants. However, the Respondent/Promoter has failed to provide the assured amenities despite several repeated request. The complainants have also alleged that, the respondent/promoter has failed to construct the Club house covering 60,000 Sq.ft area which was assured by him at the time of agreement and further submits that there are so many other amenities still to be completed. Further allegation of the complainants is that, the respondent/promoter has registered the said project before the Karnataka Real Estate Regulatory Authority vide registration no. PRM/KA/RERA/1251/308/PR/171015/000357 and undertake to complete the project on or before 31-08-2019 and procured further extension till May 2021 but the respondent/promoter failed to complete the project in all aspects. The delay has been caused without any good cause and still the respondent/promoter is not able to complete it. Despite of the same, he has executed the sale deeds by collecting the entire amount payable by the allottees only with an intention to unjustly enrich himself by playing fraud on the complaints by falsely representing that the project is going to be completed soon.

6. The complainants have represented through their counsel Mr. Prasanth M.V., the advocate for the complainants had submitted the written submission and produced latest photographs of the project to establish the facts that the project and the promised amenities are not completed as agreed by the respondent/promoter. The advocate for counsel also submitted the copy of brochures provided by the respondent/promoter to all customers wherein the respondent has given assurance to respondent/promoter that, the "Mahaveer Palatium" project will be completed as per facet of Roman Grandeur/Roman style city and the same could be evidence in his website but the promoter has failed to complete the project as agreed, hence filed the present complaints against the respondent/promoter and prayed this Authority to direct the respondent:

(a) to resolve the issues pertaining to litigated survey numbers.

(b) to complete the project within specific time and provide Roman themed amenities including 60,000 Sq.ft. Club house as advertised by the respondent during sales, marketing videos and booklets;

(c) to add and complete eliminated amenities such as water catchment area 2, Six (06) badminton courts, amphitheatre, dolphins at the clock tower and Roman Statues/structures at regular intervals;

(d) to provide assurance on compound wall with its safety standards without causing any harm/damage especially during the construction and later stages;

(e) to refrain from demanding layout maintenance charges till completion of the entire project;

(f) to provide an undertaking that there is no dispute regard to title of the Respondents/Promoter over entire project site other than the survey numbers which are under litigation.

(g) to pay damages to the complainants calculated as follows;

(i) Interest calculated @ 10% over the current plot value calculated at Rs. 2703/- per sq.ft. from June 2021 until the date of pronouncement of judgement and continue till completion of the project.

(ii) Interest calculated @10% on the layout maintenance charges, clubhouse membership charges and clubhouse maintenance charges which was paid by the complainant during registration of the plot until the date of pronouncement of judgement and continue till completion of the project.

(iii) to award the compensation of Rs. 10,00,000/- as compensation towards mental trauma, agony and harassment suffered by the complainants.

(iv) to take appropriate action against the Respondent/Promoter for not completing the entire project before June 2021 as per the undertaking given before the K-RERA Authority.

(v) to pay compensation towards damages for causing mental agony to the complainant.

7. On the other hand, Smt. Sujatha H.H. learned counsel appearing for the respondent vehemently opposed the submission made by the learned counsel for the complainants. She has filed common objection on 19-10-2022 and on 13-12-2022 with annexures and recent photographs of the project and prayed the authority to dismiss the claim of the complainants as not maintainable for the following reasons:

8. That, the respondent is a promoter by profession and intended to start a residential layout MAHAVEER PALATIUM over several survey numbers situated at Giddenahalli Village and Mahanthalingapura Village, Jigani Hobli, Anekal Taluk, Bengaluru Urban District. The Respondent/promoter has procured the Lands under various Sale deeds which is totally measuring to 121 Acres 0-23 Guntas and procured the Initial Layout plan from Anekal Planning Authority on dt: 29-04-2014 vide No. Aa.Yo.Pra/LAO/05/13-14 dt: 29-04-2014 to form the Residential Layout which comprises of 1752 plots of different dimensions. Thereafter the said planning authority had issued the release order in the form 40% : 30% : 30% on various dates as under;

i. 40% Release Order: On dated 29-04-2014 vide Order No. A.Yo.Pra/LAO/05/2013-14, wherein 701 plots have been released.

ii. 30% Release Order: On dated 11-08-2016 vide order no. Aa.Yo.Pra/ALO/05-2013-14, wherein 526 plots have been released.

iii. 30% Release Order: On dated 09/04/2021 vide order No. Aa.Yo.Pra/LAO/05/2013-14, wherein 525 plots have been released.

9. The respondent/promoter has developed the layout and obtained the 40% & 30% release order and relinquished the road, park and civil amenities to the Anekal Planning Authority on dt: 28-04-2014 vide Doc. No. CMP-1-00569-2014-15 much prior to enactment of RERA Act, 2016 w.e.f. dated 01-05-2016 and dated 01-05-2017 and much prior to enactment of K-RERA Rule w.e.f. dt: 11-07-2017.

10. During the course of further development of the project, the RERA Act, 2016 and RERA Rule 2017 came in to force and direction has been given to the promoter to register their ongoing project. As per Rule 4(1), the explanation has been given for ongoing projects as under;

Explanation: For the purpose of this rule 'ongoing project' means a project where development is going on and for which completion certificate has not been issued but excludes such projects which fulfill any of the criteria on the date of notification of these rules, namely:-

(i) in respect of layouts where the streets and civil amenities sites and other services have been handed over to the Local Authority and Planning Authority for maintenance;

(ii) where partial occupancy certificate is obtained to the extent of the portion for which the Partial Occupancy Certificate is obtained.

11. As the respondent relinquished the road, park and civic amenities to the Local Authority on dt: 28-04-2014 as per Rule 4(1)(i). The Respondent also procured the partial released order on dated 29-04-2014 and on dated 11-08-2016 as per rule 4(1)(v). As the said project fulfils above two criteria, the Respondent has not registered the portion of the project wherein release order has been issued and registered the remaining portion before the Karnataka Real Estate Regulatory Authority vide registration bearing no. PRM/KA/RERA/1251/308/PR/171015/000357 as the respondent was supposed to get the final release order for remaining 525 plots. The respondent has taken registration only for unsold units. The respondent has obtained the further extension of 12 months u/s. 6 of RERA Act, 2016 and also procured 9 months further extension under Covid-19 force majeure i.e., till dated 31-05-2021 but the respondent has completed the development work and received the final Release order within the end date i.e., on dated 09-04-2021.

12. The respondent/promoter also contended that above complaints are not-maintainable as those plots which were sold by the respondent/promoter to the respective allottees/complainants are fall under phase-1(40%) and phase-2 (30%) release order, wherein release orders were issued much prior to enactment of RERA Act and K-RERA Rule, hence that portion the project was not registered before K-RERA. The Promoter has received the release orders in different stages in the ratio 30% : 40% : 30% from the planning Authority, wherein 40% (for 701 plots) and 30% (for 526 plots) release orders have been procured on dt: 29-04-2014 and dt: 11-08-2016 and executed the Sale Deed much prior to the enactment of RERA Act, 2016 to the respective complainants/allottees. The khatha with respect to those plots and other revenue documents are already got mutated in their respective names and they are in the peaceful possession and enjoyment of the said sites without having hindrance from the promoter and they are paying property tax to the respective plots in their names. Due to the above said reasons, the respondent prayed to dismiss the present complaints as not-maintainable.

13. In support of her contention, she has produced come citations and placed reliance mainly on the following judgement Hon'ble High Court of Karnataka at Bengaluru in Writ Petition No. 18448 of 2021 (M/s. Provident Housing Pvt. Ltd./vs/KRERA and Anr.) wherein clarified the fact that, Karnataka RERA has no Authority over projects granted partial occupancy certificate prior to enforcement of the Act. Based on the said judgement, the counsel for respondents contended that the Authority has no jurisdiction to adjudicate the matter wherein partial release order is obtained prior to enactment of Act for the residential layout project.

14. Heard both the counsels and perused the documents submitted by both the parties in detail. The authority has framed the following substantial question of law to be decided on the complaint:

1. Whether the complaint filed u/s. 31 of the Real Estate (Regulation and Development) Act, 2016 is maintainable and whether the Authority has jurisdiction to adjudicate the complaint

2. What order

15. Findings on the above points is as under:

1. In the Negative

2. As per final order

FINDINGS

16. Findings on point no. 1: It is necessary for the Authority to examine as to whether the respondent/promoter has fulfilled all the criteria as contemplated under explanation (i) and (v) to sub-rule 1 of Rule-4 of K-RERA Rules, so as to claim, the said complaints are not maintainable.

17. Explanation to Rule 4(1) of K-RERA Rules states that' ongoing project' means a project where development is going on and for which completion certificate has not been issued but excludes such projects which fulfill any of the criteria on the date of notification of these rules, the respondent/promoter is required to fulfill two criteria's viz.

(i) in respect of layouts where the streets and civil amenities sites and other services have been handed over to the Local Authority and Planning Authority for maintenance;

(ii) where partial occupancy certificate is obtained to the extent of the portion for which the Partial Occupancy Certificate is obtained. Undisputedly, the rule came into force from 10-07-2017.

(iii) The Hon'ble Karnataka RERA Appellant Tribunal in its judgement passed in K-REAT APPEAL No. 31/2021, between Zenith Resident's Association V/s Karle Homes Private Limited held that the project which has been issued completion certificate by the competent authority such as architect such projects do not come under the definition of RERA Act and the said projects are not required to be registered under the provision of the RERA Act. The Hon'ble K-REAT by confirming the order passed by this Authority in CMP/UR/200710/0006128 that project is exempted from registration dismissed the Appeal no. 31/2021.

(iv) At the threshold the Authority has to address the issue of maintainability of the complaints. Unless the Authority assumes jurisdiction in respect of the project, the issue raised in the complaint filed u/s. 31 of the Act cannot be addressed. Section 3 of the Act deals with the registration of the projects. Only the projects which are registered with the Authority in portion/full or required to be registered with the authority shall come under the purview of the jurisdiction of the Authority to deal with the complaints filed u/s.31 of the Act.

(v) The facts of the case indicate that this project had obtained the partial release order during the year 2014 and 2016 much prior to the enactment of RERA Act, 2016. It is also noted from the submission made during the course of hearing before the Authority that the plots in the said project were taken possession by the respective complainants/allottees. As there is already a partial release orders prior to enactment of RERA Act and K-RERA Rule, the Respondent had registered only the portion of the project which comes under final release order of 30%. This authority cannot exercise jurisdiction to adjudicate the complaints filed u/s.31 of the Act on account of lack of jurisdiction of this Authority on the portion of project where partial release order has been issued. Considering all the above facts, the point raised above is answered in the Negative.

18. Findings on point no. 2: For the foregoing reasons, I proceed to pass the following order as under:

ORDER

In exercise of the powers conferred under Section 31 of the Real Estate (Regulation and Development) Act, 2016, the project against which complaints are filed is not found to be ongoing project for the portion wherein release order has been issued as on the date of commencement of the Real Estate (Regulation and Development) Act, 2016. Therefore, the Authority declines to exercise the jurisdiction and adjudicate on the complaints. Accordingly, aforesaid complaints submitted u/s.31 of the Act are dismissed as not maintainable on account of lack of jurisdiction of this Authority on the portion of project where partial release order has been issued.