Dispute Over Construction On Allotted Roof Is Civil Dispute, RERA Complaint Not Maintainable: Rajasthan REAT

The Rajasthan Real Estate Appellate Tribunal, (REAT) Jaipur, has affirmed the Rajasthan Real Estate Regulatory Authority's order holding that a complaint filed under the Real Estate (Regulation and Development) Act, 2016, was not maintainable after finding that the dispute over construction of a solar structure on an allotted rooftop involved civil rights that were already pending before a competent civil court.

The bench comprising Chairperson Madan Gopal Vyas and Judicial Member Yudhisthir Sharma dismissed the appeal filed by joint allottees Neelam Jain and Anand Kumar Jain against ARG CG Developers LLP, holding that the authority had rightly concluded that the complaint could not be entertained under the 2016 Act.

“It is noted that point in issue regarding solar structure on allotted roof is directly and substantially involved in Civil Suit as well as in complaint. Whether appellant is entitled for construction on allotted roof, is related to his civil right and since the civil litigation is already pending before the competent Civil Court, therefore, learned Regulatory Authority rightly concluded that the matter does not fall under the RERA Act, 2016 and rightly dismissed the complaint”, the tribunal held.

The dispute arose out of the residential project “A.R.G. Ananta” developed by ARG CG Developers LLP at Jagatpura, Jaipur. Neelam Jain booked a flat in the project in 2016, an agreement for sale was executed on 28 December 2017, and Anand Kumar Jain was added as joint allottee through a correction deed dated 12 April 2018.

The allottees paid Rs. 25,75,600 towards the flat between 2016 and 2023. In November 2022, the developer allotted roof usage rights after payment of Rs. 3,50,000 and handed over possession of the rooftop.

After getting possession of the rooftop, the allottees set up a solar plant and also put up iron pillars, a shed, stairs and railings. The developer later objected to these additions and demanded that the structure be removed.

The dispute soon reached a civil court in Jaipur's Sanganer area, where on 18 December 2023 the court directed both sides to maintain status quo over the rooftop.

Even as the civil case was pending, the allottees moved the Rajasthan Real Estate Regulatory Authority, claiming relief under the Real Estate law. In December 2024, the Authority refused to entertain the complaint, pointing out that the fight over roof rights and the solar structure was already before a civil court.

The allottees then challenged that decision before the Appellate Tribunal. They argued that the civil case was only about the rooftop and had nothing to do with possession of the flat. The developer disagreed, saying the construction on the terrace was never authorised and that the same dispute was already being examined by the civil court, so the real estate forum should not step in.

The tribunal observed that before the authority, the complainants had pressed only the issue of roof rights and therefore could not raise additional issues at the appellate stage.

It held that the only question for consideration was whether the appellants were entitled to construct on the allotted rooftop, which was a civil rights issue already pending before the civil court and therefore outside the scope of the 2016 Act.

Upholding the Authority's order, the Tribunal dismissed the appeal and held that the parties were at liberty to raise all objections before the competent civil court.

For Appellants (Neelam Jain & Anand Kumar Jain): Advocates Kapil Sharma.

For Respondent (ARG CG Developers LLP): Advocate Prashant Daga.