Telangana High Court

Sri Boinpally Srinivas Rao vs The State Of Telangana on 23 June, 2025

Author: B. Vijaysen Reddy

Bench: B. Vijaysen Reddy

          THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY

                  WRIT PETITION No.4098 of 2025
ORDER:

This writ petition is filed seeking a direction from this Court

to declare the to issue an appropriate writ order or direction more

particularly one in the nature of Writ of Prohibition (A) prohibiting

the respondent No.2 from proceeding further with Complaint

No.187 of 2024 by declaring that the respondent No.2 has no

jurisdiction to entertain, hear or decide Complaint No.187 of 2024

pending before it filed under Section 31 of the Real Estate

(Regulation and Development) Act, 2016 (RERA Act) by the

respondent No.4 against the petitioners as being patently illegal,

in contravention of Rule 2(J) of the Telangana State Real Estate

(Regulation and Development) Rules, 2017 ('RERA Rules') and

(B)consequently dismiss the Complaint No.187 of 2024 pending

before the respondent No.2 as not maintainable and

2. The petitioners are absolute owners of the land admeasuring

Ac.24.11 guntas in Survey Nos.159/Part and 162/Part, Gopanpally

Village, Serilingampally Mandal, Ranga Reddy District, Telangana

(schedule property). The petitioners applied for building permission

from the Greater Hyderabad Municipal Corporation (GHMC) and the

same was granted vide Permit No.2581/HO/WZ/Cir-11/2010 dated

08.06.2011 for development of gated community with

105 independent houses along with 6 units for LIG and 6 units for

EWS. The building permission was originally valid for a period of

3 years till 07.06.2014, which was later extended for a period of six

years as per Rule 19(d) of G.O.Ms.No.168 dated 07.04.2012 and

amended Rule 19(d) vide G.O.Ms.No.7 dated 05.01.2016.

3. It is submitted that pursuant to the building permit,

the petitioners developed the schedule property land into a layout

with plotted area and several plots were sold under registered sale

deeds. There is no dispute with respect to sale of plots by the

petitioners. Some of the plot owners entered into independent

construction contracts with the petitioner No.1 for construction or

completion of under-construction villas. The said independent

contracts were entered with individuals by the petitioner No.1 alone

and therefore, cannot be brought within the purview of Telangana

State Real Estate Regulatory Authority (TSRERA).

4. It is submitted that the RERA Act was enacted by the

Parliament, which came into effect from 01.05.2016. Section 3 of

the RERA Act provides for registration of real estate projects.

The proviso to Section 3 of the Act provides that the projects that

are ongoing on the date of commencement of the RERA Act and for

which the completion certificate has not been issued, the promoter

shall make an application to the Authority for registration of the

said project within a period of three months from the date of

commencement of the RERA Act. As per the RERA Act,

the Government of Telangana enacted the RERA Rules, which were

published vide G.O.Ms.No.202 dated 31.07.2017. Rule 2(j) of the

Rules, 2017 defines 'ongoing project'. The term 'ongoing project'

is not defined under the RERA Act.

5. It is submitted that the petitioners' project 'Pristine Estates'

is exempt from registration under RERA Act in view of the Rule 2(j)

and thereby, the provisions of RERA Act will not apply to the project

permitted vide GHMC Building Permit Order No:2581/HO/MZ/Cir-

11/2010, dated 08.06.2011. As the project was approved before

01.01.2017, the provisions of the RERA Act would not apply and

therefore, no complaint can be entertained by the respondent No.2

against the petitioners.

6. It is submitted that the respondent No.4 was registered with

ill-motive by some of the owners on 21.10.2022. The Respondent

No.4 is not representing the owners of entire community of Pristine

Estates. The respondent No.4 - association was formed without

intimation to all owners with ulterior motive. The members of

respondent No.4 are defaulters of payment of maintenance charges

and deposits to the owners and to avoid payments they formed into

an association and they are liable to pay an amount of

Rs.12,72,62,808/- (Twelve Crores and Seventy Two Lakhs and

Sixty Two Thousand Eight hundred and Eight Only) towards costs of

external electrification and external main water line for the

occupied 74 Villas. The respondent No.4 had been demanding its

members to pay membership fee even to join the Association,

which is against the conditions of the Registered Deeds/Agreements

entered between the owner and the buyer.

7. It is submitted that the respondent No.4 filed Complaint

No.187 of 2024 before the respondent No.2 making certain

allegations against the respondent No.3 and the petitioners. In the

complaint it is alleged that the petitioners, allegedly, advertised and

sold villas in a gated community called 'Pristine Estates' with

promises of state-of-the-art facilities, but failed to deliver on those

promises. The petitioners allegedly kept the water and electricity

supply under a commercial rate instead of residential and

threatened to cut off the essential services if maintenance fees

were not paid. The petitioners and others attempted to form

another association of villa owners and demanded backlog

maintenance charges, despite the existing association already

handling the community's upkeep. The project was not registered

with the TSRERA, despite the building permissions expired on

07.06.2014 (3 years from the date of original building permit) and

continued to advertise the project. Further, that the Club-House is

under a registered lease agreement vide document No.8193/2021

dated 13.08.2021 with certain terms and conditions, with a third-

party entity.

8. It is submitted that the petitioners filed a counter before

TSRERA questioning the jurisdiction of the respondent No.2 to

entertain the complaint filed by the respondent No.4. The RERA Act

and RERA Rules are applicable only to real estate projects whose

building permissions are approved on or after 01.01.2017 by the

Competent Authorities. In other words, the RERA Rules will be

inapplicable to projects whose building permissions were approved

prior to 01.01.2017 or up to 31.12.2016 and hence, the complaint

filed by the Respondent No.4 is not maintainable. It is submitted

that despite specific objection regarding jurisdiction of the

respondent No.2 raised by the petitioners regarding jurisdiction, the

respondent No.2 proceeded with hearing of the complaint and as

such, the petitioners were constrained to approach this Court.

9. The respondent No.4 filed counter affidavit, inter alia, stating

that the respondent No.1 has passed G.O.Ms.No.60 dated

04.03.2025 along with a Circular No.607/2025/TGRERA dated

04.03.2025 amending the RERA Rules, to be in line with the RERA.

As per amended Rule 1(2) and 2(j) of the RERA Rules, the Real

Estate Projects for which the completion certificate has not been

issued as on the date of coming into force of the RERA Act and the

project where development is going on and for which Occupancy

Certificate or Completion Certificate from the Competent Authority

has not been issued, are defined as ongoing project. The project of

the petitioners 'Pristine Estates' has not been issued

occupancy/completion certificate and therefore, the grievance of

the petitioners is no longer valid. In view of the amendment, this

writ petition has become has infructuous.

10. Mr. P. Sri Raghu Ram, learned senior counsel appearing for

Mr. K. Kiran Kumar, learned counsel for the petitioners, fairly

submitted that in view of amendment to Rule 1(2) and Rul2(1)(j) of

the RERA Rules, there is no ambiguity insofar as ongoing project is

concerned, which means, a project for which occupancy certificate

or completion certificate is not issued by the competent authority.

Learned senior counsel further submitted that, admittedly, Pristine

Estates was not issued occupancy certificate. Thus, under the new

Rules, prima facie, the complaint filed against the developers of

Pristine Estates is maintainable.

11. However, learned senior counsel submitted that the

complaint of the respondent No.4 was registered on 13.09.2024

and the amendment to the provisions of Rule 21(j) was on

04.03.2025. The complaint is not maintainable on the date when it

was filed. Thus, the RERA does not have jurisdiction to entertain the

complaint. What is relevant to be seen is the right vested with the

parties on the date of the complaint i.e. 13.09.2024 and as the

complaint could not have been entertained against the Pristine

Estates, such vested right cannot be divested. Alternatively, learned

senior counsel submitted that assuming as per the amended Rules,

the complaint is maintainable, it may be left open to the respondent

No.4 to file a fresh complaint, which will be defended by the

petitioners in accordance with law.

12. Mr. Srinivas Iyengar, learned senior counsel appearing for

Mr. Hirendranath, learned counsel for the respondent No.4,

submitted that the issue in this lis is no more res integra. The same

issue has arisen for consideration before the Supreme Court in

NEWTECH PROMOTERS AND DEVELOPERS PRIVATE LIMITED

v. STATE OF UTTAR PRADESH 1 wherein it was held that RERA Act

is retroactive and that projects, already completed for which

completion certificates are no granted, come within the fold of the

RERA Act.

13. Learned senior counsel for the petitioners, in reply, submitted

that the judgment in NEWTECH PROMOTERS AND DEVELOPERS

PRIVATE LIMITED's case (1 supra) is not applicable to the

(2021) 8 SCC 1

present case because it arises under the Uttar Pradesh Real Estate

(Regulation and Development) Rules, 2016, wherein the definition

of ongoing project is different as compared to RERA Rules.

14. The Supreme Court in NEWTECH PROMOTERS AND

DEVELOPERS PRIVATE LIMITED's case (1 supra) framed

"Question No.1: Whether the 2016 Act is retrospective or

retroactive in its operation and what will be its legal consequence if

tested on the anvil of the constitution of India" and held as under:

"40. The clear and unambiguous language of the statute is retroactive in operation and by applying purposive interpretation rule of statutory construction, only one result is possible, i.e., the legislature consciously enacted a retroactive statute to ensure sale of plot, apartment or building, real estate project is done in an efficient and transparent manner so that the interest of consumers in the real estate sector is protected by all means and Sections 13, 18(1) and 19(4) are all beneficial provisions for safeguarding the pecuniary interest of the consumers/allottees.

...

47. The distinction between retrospective and retroactive has been explained by this Court in Jay Mahakal Rolling Mills v. Union of India [(2007) 12 SCC 198] "8. "Retrospective" means looking backward, contemplating what is past, having reference to a statute or things existing before the statute in question. Retrospective law means a law which looks backward or contemplates the past; one, which is made to affect or facts occurring, or right occurring,

before it comes into force. Retroactive statue means a statues, which creates a new obligation on transactions or considerations or destroys or impairs vested rights."

48. Further, this Court in Shanti Conductors (P) Ltd. v. Assam SEB [(2019) 19 SCC 529], held as under:

"67. Retroactivity in the context of the statute consists of application of new rule to an act or transaction which has been completed before, the rule was promulgated.

...

53. From the scheme of the Act 2016, its application is retroactive in character and it can safely be observed that the projects already completed or to which the completion certificate has been granted are not under its fold and therefore, vested or accrued rights, if any, in no manner are affected. At the same time, it will apply after getting the ongoing projects and future projects registered under Section 3 to prospectively follow the mandate of the Act 2016."

15. The definition of 'ongoing project' under Rule 2(1)(h) of

the Uttar Pradesh Real Estate (Regulation and Development)

Rules, 2016, is exhaustive as compared to the definition of 'ongoing

project' under Rule 2(1)(j) of RERA Rules. However, from a reading

of both the provisions, there is no ambiguity that 'ongoing project'

means a project where development is going on and for which

completion certificate has not been issued. Thus, in the opinion of

this Court, the judgment in NEWTECH PROMOTERS AND

DEVELOPERS PRIVATE LIMITED's case (1 supra) is squarely

applicable to the facts of the present case.

16. Rules 1(2) and 2(1)(j) of the RERA Rules prior to and after

amendment are as under:

   Sl.         Rule              Prior to Amendment                  After Amendment
   No.

       1.    Rule 1(2) These Rules are applicable to           These Rules are applicable to
                       all Real Estate Projects whose          all Real Estate Projects for
                       building permissions approved           which       the     completion
                       on or after 01.012017 by the            certificate   has   not   been
                       Competent Authorities viz.,             issued as on the date of
                       UDAs/DTCP/Municipal                     coming      into    force    as
                       Corporations/Municipalities/            stipulated in sub-section (1)
                       Nagar Panchayats/TSIIC.                 of section 3 of the Real Estate
                                                               (Regulation & Development)
                                                               Act, 2016 by the Competent
                                                               Authorities viz., UDAs/DTCP/
                                                               Municipal         Corporations/
                                                               Municipalities/Nagar
                                                               Panchayats /TSIIC.


       2.      Rule         "Ongoing Project" means, a         "Ongoing Project" means a
              2(1)(j)       Project where development is       Project where development is
                            going on and for which             going on and for which
                            Occupancy     Certificate    or    Occupancy     Certificate    or
                            Completion Certificate has not     Completion Certificate from
                            been issued but excludes such      the Competent Authority has
                            Projects for which building        not been issued as on the
                            permissions were approved          date of coming into force as
                            prior   to   01.01.2017      by    per sub-section (1) of section
                            the Competent Authorities          3    of   the   Real     Estate
                            viz., UDAs / DTCP / Municipal      (Regulation & Development)
                            Corporations / Municipalities/     Act, 2016.
                            Nagar Panchayats / TSIIC as
                            the case may be.

17. On a reading of the above amended Rules, it is clear that

ongoing project means a project for which occupancy certificate or

completion certificate has not been issued. It is not in dispute that

Pristine Estates has not been issued occupancy certificate.

Thus, with effect from 04.03.2025, as per amendment to the above

provisions, Pristine Estates comes within the fold of the RERA Act

and RERA Rules.

18. Assuming that the complaint lodged by the respondent No.4

on 13.09.2024 is not maintainable, I do not have any hesitation to

hold that, by operation of law, the complaint is now maintainable

with effect from 04.03.2025 as per the amendments to Rule 1(2)

and Rule 2(1)(j) of the RERA Rules.