If occupancy certificate or partial occupancy certificate is issued to a particular project prior to commencement of the Karnataka Real Estate (Regulation and Development) Act-2016, the same loses the tag of an ongoing project and a complaint under the Act is not maintainable.
This is what the high court stated recently while quashing the September 30, 2020 order passed by the Karnataka Real Estate Regulatory Authority (K-RERA), which had directed the petitioner-developer, M/s Provident Housing Limited, to return Rs 6,84,494 within 60 days to Shyama Shetty, the complainant.
Allowing the petition filed by the developer, Justice M Nagaprasanna pointed out that in the Newtech Promoters and Developers Pvt Ltd vs State of Uttar Pradesh case, the Supreme Court considered what is an ongoing project and issuance of completion certificate interpreting the Act and the rules made by the Uttar Pradesh government. It had held that the statute is not retrospective merely because it affects the existing rights or its retrospection because a part of the requisites for its action would destroy or impair the vested rights.
“The SC holds that its action is retroactive in character and can be observed that the projects which are already completed or to which completion certificate has been granted are not under the fold of the Act. At the same time, the Supreme Court holds that it will apply after getting the ongoing projects and future projects registered under the Act,” the judge added.
As regards to the case on hand, Justice Nagaprasanna pointed out that the partial occupancy certificate was issued by the BDA on November 18, 2015 and another one on April 17, 2017. Hence, the issuance of the occupancy certificate prior to the Act coming into force, albeit partially, therefore, the project lost its character, as an ongoing project in terms of rule 4 under Karnataka Real Estate (Regulation and Development Act).
