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07-2077
2. Hussain Pathan
Partner of Geetanjali Aman Constructions,
residing al 571, Dattawadi,
Pune-4'l'l 030 ... Appellants/
Org.Respondents
Versus
,l
Pune-411 030
,|
Appeol in SC1OOOO67 2/691 Common Ofuet 10.07.2077
JUDGMENT
2
"Section 3(2). Notwithstanding anything contained in sub
section 1, no registration of the Real Estate project shall be
required:
(a) Where the area of land proposed to be developed does not
exceed five hundred square meters or the number of
apaftments proposed to be developed does not exceed
eight inclusive of all phases....."
registered.
reliefs.
of the Act being area under the project less than 500 sq.
mtrs;
(ii) To hold that the project is not registrable under the Act.
(iii) To withdraw and cancel the penalty of Rs.30 lacs imposed
by the said order;
(iv) To cancel/withdraw the directions requiring to register
the project within three weeks from the date of order;
(v) To stay operation of the order pending hearing and final
disposal of Review APPlication.
5
notice to the Respondents under Section 7 of RERA to show
cause as to why MahaRERA should not take the project in its
control. The matter be kept before the Authority on 08.04.2019.
10. In relief, the Appellants sought to quash and set aside the
impugned order dated 10th December, 2018 as modified by order
dated 1lth March,2019.
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13. The learned counsel for Appellants submitted that on plain
reading of the aforesaid provisions it
is clear that the two
ingredients/conditions prescribed in the clause (a) for exempting
exemption to the projects from registration are mutually exclusive
due to the word "or" used therein. Therefore they are to be read and
considered alternatively and not conjunctively as is done by the
learned member while passing the impugned orders' He further
submitted that satisfaction of either of the conditions or ingredients
is only necessary for such exemptlon from registratlon'
-l
{-
(ii) Whether Appellants are liable to comply with
directions for registration of the project and to pay
penalties imposed as per the impugned orders?
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Appeol i n sc 1 000067 2 /6 91 CommonOrder 10.07-2077
We answer both the points in the negative for the reasons discussed
in the ensuing account.
20. As may be noted from above account, the principal question that
needs to be addressed in this appeal revolves around the interpretation
of word "or" used in clause (a) of Section 3(2) of RERA and its application
to the facts and circumstances of this case already detailed
comprehensively hereinabove. The crux is whether "or" has to be read
conjunctively or disjunctively. Needless to state that need to interpret
the provisions of law would arise only when there is ambiguity left or a
doubt is created in understanding the provisions. In our view in
understanding the provision of law what should be done when the words
are clear and unambiguous is to give the words that meaning which they
convey plainly, irrespective of the consequence. It is well settled law
2t. In the light of above observations and with a view to gauge the
legislative intent for using the word 'or' in the said clause we have
also perused the material submitted by the Appellants. It is seen -
Section 3(2)(a).
24. The disjunctive reading of "or" in clause (a) of Section 3(2) of the
Act if applied to the facts of the present case, it is inevltable that the
total area of the plot being 382 sq.mtrs., project in question is out of the
purview of registration under the Act of 2016. Analysed from this view
point, it appears from his observations in 3rd and 4th sentences of Para
3 of the order dated 11th March 2019, that the learned member
any context or meaning to the word 'or' used in the said clause. This
appears to have led him to take a view contrary to what was intended
to by the legislature.
-:ORDER:-
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A ppeo I i n 5C1000067 2 /69 1 Common Oder 70.07.2077
iiil No costs;
Admitted facts
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Appeol in 5C1000067 2/691 CommonOrder 70.07.2017
ORDER
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take the project in its control. The matter be kept before
the authoritY on 08.04.2019.
\e the plot as 382 sq. meters and correct number of flats and shops
as 22 and 9 respectively by passing order to that effect on
11.03.2019.
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Riva lClaims
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involving development of land having area not exceeding 500 sq'
meters into plots for sale shall be exempted.
3(2Xa) are not mutually exclusive but both shall be satisfied for
seeking exemption of the project from registration.
Phases:"
35. Ld. Member held that project must satisfy both conditions i'e'
area of plot not exceeding 500 sq. meters and number of flats not
\A exceeding B for getting exemption from registration as per section
3(2Xa) of RER Act. satisfaction of one condition is not sufficient to
exempt the project from registration'
36. Let us see what is the legal interpretation and true meaning
of Section 3(2Xa) of RER Act for exemption of project from the
registration. In view of word "OR" used in Section 3(2Xa) between
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Appeol i n 5C1000067 2/691 CommonOrder 70.07.2077
I refer to para 158, 159 and 160 of the said Case Law.
Obiects
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iv) To provide speedy adjudicating mechanism.
v) To complete the on-going project. [Neelkamal Realtors]
39. As per Section 3(1) of RER Act, without registration of project
Promoters shall not advertise, market, book, sale or offer for sale
or invite persons to purchase any plot, apartment or building in the
project.
Mandate of Reqistration
Exception
45,Theintentionoflegislatureinmakingregistrationmandatory
and compulsory for the new and ongoing projects clearly shows
that as far as possible all the projects are made compulsorily
registrable as per Section 3 of RER Act' However, every rule
is
registration.
46.IntheexplanationasprovidedunderSection3ofRERAct'
phase
where the project is to be developed in phases every such
shallbe considered as stand alone real estate project and the
-Afi promoter shall obtain registration in each phase separately' Unless
the project is registered with MahaRERA Authority, Regulatory
per clause
Act. So, intention of legislature in framing exception as
(a) for exemption of the project from registration on the point of
to
area of the plot or number of apaftments must be construed
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satisfy both the conditions for obtaining the exemption from the
registration.
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Relev ant
inform ation of Bill, reco mmendatio of
Com ittees
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Appeol in sC1000067 2/691 Connon Otder 1O.O7.2017
52. The Bill excludes projects smaller than 1000 sq. meters area
or 12 apartments from its purview. The Standing Committee
54. The Select Committee recommends that the area of the land
and number of flats to be exempted from registration should be
reduced and adequate powers in this regard may be provided to
the appropriate government. Thus, Standing Committee has
specifically used word 'and/or' in its recommendations whereas
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A ppe o I i n S C 1000OG 7 2 /69 1 CommonOrder 70.07.2017
56. I reveft back to para 158 of Neelkamal Case Law. As per ratio
laid down in R.S. Raghunath Vs. State of Karnataka.
"When the question arises as to the meaning of a certain
provision in a statute, it is not only legitimate but proper to read
that provision in its context. The context here means, the statute
as a whole, the previous state of the law, other statutes in pari
materia, the general scope of the statute and the mischief that it
was intended to remedy."
ttCI
57. Considering context of provision of Section 3(2)(a) for
exemption from registering the project on basis of minimum area
of land and minimum number of flats read together with other
provisions such as Section 3 of mandate for registration of the
project and mandatory requirements to be submitted in detail for
registration of the project as per Section 4 by the Promoter and
power of appropriate government to reduce minimum threshold of
area and number of flats and move of the Maharashtra Government
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Appeol in 5C1000067 2/691 ComnonOtdet 10.07.2017
Conclusion
.\,9 58. In view of the above discussion, I am of the opinion that you
cannot read provlso of Section 3(2Xa) in isolation but it must be
read with other clauses and provisions laid down under RER Act in
order to determine the true meaning of the said clause i.e. 3(2Xa)
of RER Act. Though, provisions of section 3(2Xa) appears simple
for the purpose of reading the same, the true meaning of it cannot
be correctly gathered by ignoring the intention of legislature in
framing this clause which is to be read with context of other
provisions of the Act and with objects of the Act. Thus, considering
the object of RER Act to regulate and develop real estate sector, to
protect the interest of customers in respect of transactions of sale
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Clarification so ht bv Promoters
59. I would like to refer mail dated 08.02.2018 which was sent
by Promoters to MahaRERA Authority for seeking the clarification
t^,b as to whether the project is registrable under provisions of RER Act
in view of exception as per Section 3(2Xa) of RER Act. Copy of E-
mail is produced on record by the Promoter. It shows that the
project is redevelopment scheme launched by the Promoter.
However, the project is not exempted from registration as per
clause 3(2Xc) as it involves marketing, adveftising selling or new
allotment of any flat or project. In the copy of mail it is seen that
Promoter has mentioned total area of flat as 382 sq. meters and
total number of tenements 29. I would like to note down the
clarification sought in the said mail by the Promoters from RER
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Appeol in SC1O0OO67 2/691 CommonOtdet 10.07.2077
for any reason. The Hon'ble Apex Court laid down in (2004) 1O
S.C.C. 598 Ram Bali Vs. State of U.P. that whatever happened
in court and what transpired at the hearing in Court the statement
recorded in Judgment in respect of that, held as conclusive and
cannot be contradicted on affidavit or otherwise by other evidence.
Party believing them to be erroneously recorded should promptly
approach the Judge who made the record while a matter is still
fresh in their mind for necessary rectification that being remedy it
cannot be challenged in appeal. In view of the above discussion, I
am of the opinion that the word "or" as used in Section 3(2Xa) of
RER Act is to be treated as "and". Both conditions must be satisfied
together at once by the Promoters for seeking exemption from the
registration of the project.
Order of PenalW
Finaldecision
Act and not proper legal and correct. So to the extent of awarding
additional penalty to the promoter, the impugned order is not
proper/ legal and correct.
ORDER
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(suM T KOLHE)
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