Section 31(1)of the RERA Act uses the expression “any aggrieved person”. The word “person” is defined under Section 2(28) but in Section 31(1) the said word “person” is further qualified by “aggrieved”. It is a settled legal proposition that a stranger cannot be permitted to meddle in any proceedings unless he satisfies that he falls within the category of “aggrieved person”. Only a person who has suffered legal injury can challenge the act/action/order in a Court of law. A “legal right”, means an entitlement arising out of legal rules. The phrase “aggrieved person” used in Section 31(1) of the RERA Act would mean a person who is regulated or governed by the said Act and there is an injury of the right conferred under the said Act. The phrase used in Section 31(1) is “any aggrieved person” and not “any person”. The Appellant is not covered by the RERA Act and therefore he cannot be said to be an “aggrieved person” to take recourse to Section 31(1) of the RERA Act. The Appellant complainant can at the most lead evidence as witness but he cannot claim the status of an adversarial litigant. The Appellant complainant cannot be a party to the lis because no legal right is conferred on him by the RERA Act. Thus from the above analysis it is evident that the Appellant having no concern whatsoever cannot be said to have any locus standi to knock the doors of the RERA Act. The Appellant has knocked wrong door by taking recourse to RERA for redressal of his grievances.
{Para 14}
15. In the instant case, admittedly the Appellant is not an “allottee”in the project being developed by the Respondent No.3. The allegation made by the Appellant are with respect to violation of various laws by the developer in the development of the project. The grievance appears to be made in the nature of private or public interest and not what is governed and regulated by the RERA Act.
16. Therefore, in my view, the Appellant cannot be said to be a“person aggrieved” to make a complaint under Section 31(1) of the Act and take recourse to the provisions of RERA Act for redressal of his grievances.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 432 OF 2023
Dr. Yogesh Keshav Bele. Vs Maharashtra Real Estate Regulatory
Authority & Ors.
CORAM : JITENDRA JAIN, J.
DATE : 25th AUGUST, 2023.
1. This appeal is filed under Section 58 of the Real Estate
(Regulation and Development) Act, 2016 (for short “RERA Act”)
challenging the order of the Real Estate Appellate Tribunal (Appellate
Tribunal).
Brief Facts :
2. The Appellant is an individual having land adjoining to the plot
developed by Respondent No.3 known as ‘Blue Heaven’. The Appellant is
not an allottee in the said project of Respondent No.3. On 23rd August
2017, the Appellant lodged a written complaint with the Maharashtra Real
Estate Regulatory Authority (Regulatory Authority) alleging various
illegality committed by the Respondent in the development of building
named ‘Blue Heaven’ situated at Palidevad, Sukapur, Tal - Panvel, District-
Raigad including allegation of encroachment by Respondent No.3 on the
land of the Appellant. The Appellant complainant also alleged that the
said project has been constructed without registration under the
provisions of the RERA Act. The Appellant complainant contended that
Respondent No.3 has used FSI belonging to his land to develop the
project. The Appellant also alleged trespassing by Respondent No.3.
3. On 26th April, 2019, the Regulatory Authority disposed of the
above referred complaint on the ground that since the Respondent No.3
has completed the project prior to the commencement of the RERA Act,
the project is not required to be registered under Section 3 of the RERA
Act. The Regulatory Authority also noted the submission of the
Respondent No.3 that since the Appellant is not an “allottee” or
“interested person” in the said building. The complaint was dismissed by
the Regulatory Authority.
4. Being aggrieved by the aforesaid order of the Regulatory
Authority, the Appellant filed an appeal under Section 44 of the RERA Act
wherein various irregularities committed by the Respondent were alleged.
The said appeal was filed by the Appellant on 25th June, 2019.
5. On 13th February, 2023, the Appellate Tribunal dismissed the
appeal on various grounds including on the ground of locus standi of the
Appellant to take recourse to the proceedings under the RERA Act. The
Appellate Tribunal, however observed that if any other proceedings are
filed by the Appellant for the redressal of his grievance then the
observation made by the Appellate Tribunal shall have no bearing on those
proceedings.
6. It is against the above order of the Appellate Tribunal that the
Appellant has filed the present appeal before this Court. Various questions
of law have been raised by the Appellant. However, the only question
pressed into service and which arises from the order of the Appellate
Tribunal is reframed as under :
“Whether the Appellant can be said to have Locus
standi in filing the complaint under the RERA Act ?”
7. Submission of the Appellant : The Appellant submits that the
RERA authority vide Circular dated 24th July, 2017 numbered 9 of 2017
had invited the citizens to inform the authority of the projects which are
not registered. The said information was to be given on the e-mail ID of
the authority. The Appellant further relied on Circular No.18 of 2018 to
contend that the authorities themselves intimated the citizens to inform
about the projects which do not have the appropriate approvals of the
planning authority. The Appellant, therefore, submitted that it was on the
basis of these Circulars that the complaint was lodged by him with the
authority and therefore he has a Locus standi to pursue the remedies
provided under the RERA Act and he is to be treated as an “aggrieved
person” for filing complaint under Section 31 of the RERA Act.
8. We have heard the learned counsel for the Appellant
Mr. Bolaikar and with his assistance have perused the records of the
appeal paper book filed with this Court.
Analysis & Conclusion :
9. The moot question which requires to be examined in the present appeal is whether the Appellant can be said to be an “aggrieved person” for filing complaint under Section 31 of the RERA Act and pursue his remedies under the said Act.
10. Admittedly, the Appellant is not an “allottee” in the project
under consideration which is developed by the Respondent No.3 because
he has not booked any flat/property in the said project. The grievance of
the Appellant is with respect to the allegation that the Respondent No.3
has violated various laws in the development of the said building
including the challenge to the the manner in which the occupation
certificate was received by the developer. The plot of land of the Appellant
is adjoining to the said project developed by the Respondent No.3. On the
basis of this fact, the grievance of the Appellant appears to be various
violations alleged to have been committed by the Respondent No.3 in
developing the project including allegation of encroachment by the
Respondent No.3 on the land of the Appellant.
11. In this context, it is necessary to examine the scheme of the
RERA Act to ascertain whether a person who is not an “allottee” or
“interested in the project” can be said to be an “aggrieved person” under
Section 31 of the RERA Act for lodging the complaint of the violations
alleged by the Appellant against Respondent No.3.
12. The preamble of the RERA Act provides for establishment of the
Regulatory Authority to protect the interest of consumers in the real estate
sector and to establish an adjudicating mechanism for speedy dispute
redressal of matters connected with the sale of plot, apartment, buildings
or sale of real estate project. Section 2(d) defines “allottee” in relation to a
real estate project to mean a person to whom a plot, apartment or
buildings has been allotted, sold or otherwise transferred by the promoter
and includes the person who subsequently acquires the said allotment
through sale, transfer or otherwise but does not include a person to whom
such plot, apartment or buildings as the case may be is given on rent.
Section 3 of the Act provides for prior registration of real estate project
with the Regulatory Authority and it provides that no promoter shall
advertise, market, book, sell or offer for sale or invite person to purchase
in any manner any plot, apartment or buildings in any real estate project
without registering the real estate project with the Regulatory Authority.
The proviso to Section 3(1) provides for registration of the project
pending on the date of commencement of the Act. Section 3(2)(b)
provides that no registration of real estate project shall be required where
the promoter has received completion certificate for a real estate project
prior to the commencement of this Act. Section 4 to 8 provides for
application for registration of real estate projects, grant of registration and
revocation of registration. Sections 9 and 10 deals with registration and
functions of real estate agents. Section 11 deals with functions and duties
of promoter. Section 13 provides that a promoter shall not accept a sum
more than ten percent of the cost of the apartment, plot or building
without first entering and registering the agreement for sale. Section 14
provides for development of the project by the promoter in accordance
with the sanction plans, layout and specification as approved by the
competent authority. Section 19 of the RERA Act provides for rights and
duties of allottees. Sections 20 to 30 provides for establishment of Real
Estate Regulatory Authority. Section 31 deals with filing of complaints by
an “aggrieved person” with the authority or the adjudicating officer for
any violation or contravention of the provisions of this Act or the rules and
regulations made thereunder against any promoter, allottee or real estate
agent as the case may be. The Explanation to Section 31(1) provides that
for the purposes of sub-section (1) ‘person’ shall include the association of
allottees or any voluntary consumer association registered under any law
for the time being in force. Section 35 empowers the authority to call for
information from any promoter, allottee or real estate agent and conduct
investigation. Section 38 empowers the Authority to impose penalty or
interest in regard to any contravention of obligation cast upon the
promoter, allottees and real estate agent. Sections 43 to 57 deals with
establishment of the Appellate Tribunal. Sections 59 to 72 provides for
offences, penalties and adjudication for any contravention by the
promoter, allottee or real estate agent.
13. On a harmonious and holistic reading of various abovereferred
provisions of the RERA Act, in my view, a person who is not at all
connected with the project of the promoter since he had not booked any flat in the said project cannot be said to be an “aggrieved person” under Section 31(1) for filing complaint. The Explanation to Section 31(1) provides that “person” shall include the association of allottees or any voluntary consumer association registered under any law for the time being in force. The “aggrieved person” under the RERA Act could be an allottee or real estate agent or promoter or association of allottees or any
voluntary consumer association registered under any law for the time
being in force. A person who is not at all connected or interested in the
project but seeks to redress his private grievances as a person occupying
the adjoining land next to the project cannot be said to have any locus to
file a complaint and redress his private grievances by taking recourse to
the RERA Act. The remedy of such a person lies somewhere else and not
before the Regulatory Authority under the RERA Act. The said view is
based on a holistic reading of preamble to the Act and the various
provisions which have been analysed above, which clearly point out that
the phrase “aggrieved person” in Section 31(1) of the Act would be an
allottee, promoter or real estate agent or association of allottees or
registered voluntary consumer association. The phrase “aggrieved person”
has to be construed in the context and purpose of RERA Act and would
encompass a person whose rights as an allottee, promoter or real estate
agent or person governed by the Act is infringed. The phrase “aggrieved
person” cannot be stretched on harmonious reading of all the provisions of
the Act and objective of the Act to mean that any person who alleges
violation of various laws by the developer can approach the Regulatory
Authority under Section 31(1) of the Act. Rule 6(1) of the Maharashtra
Real Estate (Regulation and Development) (Recovery of Interest, Penalty,
Compensation, Fine Payable Forms of Complaints etc.) Rules, 2017 also
indicates that “aggrieved person” is a person having interest in the project.
At the most an unconnected or unrelated person may bring to the notice
of the Regulatory Authority the alleged violation and then it is for the said
authority to take action based on the information received (which the
Appellant claims to have done relying on Circulars issued by the
Authority), but that would not bring such a person giving information
within the phrase “aggrieved person” for the purpose of Section 31(1) of
RERA Act. If such a person is not satisfied with the action taken by the
Regulatory Authority then the remedy of such a person would lie
somewhere else and not under the RERA Act.
14. Section 31(1)of the RERA Act uses the expression “any
aggrieved person”. The word “person” is defined under Section 2(28) but in Section 31(1) the said word “person” is further qualified by “aggrieved”. It is a settled legal proposition that a stranger cannot be permitted to meddle in any proceedings unless he satisfies that he falls within the category of “aggrieved person”. Only a person who has suffered legal injury can challenge the act/action/order in a Court of law. A “legal right”, means an entitlement arising out of legal rules. The phrase “aggrieved person” used in Section 31(1) of the RERA Act would mean a person who is regulated or governed by the said Act and there is an injury of the right conferred under the said Act. The phrase used in Section 31(1) is “any aggrieved person” and not “any person”. The Appellant is not covered by the RERA Act and therefore he cannot be said to be an “aggrieved person” to take recourse to Section 31(1) of the RERA Act. The Appellant complainant can at the most lead evidence as witness but
he cannot claim the status of an adversarial litigant. The Appellant
complainant cannot be a party to the lis because no legal right is conferred on him by the RERA Act. Thus from the above analysis it is evident that the Appellant having no concern whatsoever cannot be said to have any locus standi to knock the doors of the RERA Act. The Appellant has knocked wrong door by taking recourse to RERA for redressal of his grievances.
15. In the instant case, admittedly the Appellant is not an “allottee”in the project being developed by the Respondent No.3. The allegation made by the Appellant are with respect to violation of various laws by the developer in the development of the project. The grievance appears to be made in the nature of private or public interest and not what is governed and regulated by the RERA Act.
16. Therefore, in my view, the Appellant cannot be said to be a“person aggrieved” to make a complaint under Section 31(1) of the Act and take recourse to the provisions of RERA Act for redressal of his grievances.
17. Even otherwise, the Regulatory Authority has given a finding of
fact that the project developed by the developer was already completed
and the occupation certificate was also obtained and possession handed
over to the allottees prior to the commencement of the said Act and
therefore, as per Section 3(2)(b), the project does not require registration
and same would not be governed by the RERA Act. This issue is now no
more res integra and covered by Paragraphs 52 and 54 of the decision of
the Supreme Court in the case of Newtech Promoters and Developers Pvt.
Ltd. V/s. State of U.P. and Others1. Furthermore this is also a finding of
fact. If the Appellant has any grievance with respect to the manner in
which prior to the coming into force of the Act, permissions were obtained
by the developer then remedy would lie not under the RERA Act but
somewhere else.
18. In view of above, the appeal of the Appellant is dismissed and
the question of law framed is answered against the Appellant. No order as
to cost.
[JITENDRA JAIN, J.]
1 2021 SCC Online 1044.
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