Flat Owners' Association Can File RERA Complaint But Cannot Be Sued Under It: Assam RERA

The Assam Real Estate Regulatory Authority (RERA) on 21 August held that an association of allottees can file a complaint under the Real Estate (Regulation and Development) Act, 2016, but cannot be made a respondent in a complaint under the Act as it does not fall within the categories of 'promoter', 'allottee' or 'real estate agent'.

Chairperson P.K. Borthakur dismissed a complaint filed by commercial unit owner Amar Gupta against Shakti Square Housing Society over maintenance charges, water supply and access to common amenities at the Shakti Square project. The Bench observed:

“The Explanation appended to Section 31(1) provides that, 'for the purpose of this sub-section, 'person' shall include the association of allottees or any voluntary consumer association registered under any law for the time being in force.' This Explanation operates only to enlarge the class of persons who may be treated as an 'aggrieved person' competent to file a complaint (i.e., on the complainant's side). It does not, and by its terms cannot, enlarge the three categories of respondent against whom a complaint may be directed. Had the Legislature intended an association of allottees to also be answerable to a complaint under Section 31, it would have said so expressly, as it did in respect of locus standi to complain. The deliberate inclusion of the association of allottees for one purpose, and its omission for the other, in the same sub-section, is a strong indicator that a housing society/association of allottees is not a person against whom a complaint under Section 31 lies.”

The dispute concerned a 3,757 sq. ft. commercial space in the multi-storeyed Shakti Square building, which Gupta purchased from Shakti Developers through a registered sale deed dated 16 December 2017 for Rs. 50 lakh. Gupta later leased the premises to the State Bank of India for its Madgharia Branch, which has operated from the premises since March 2021.

Gupta alleged that Shakti Square Housing Society, formed by the building's unit holders and responsible for its maintenance and management, denied the bank's occupants and customers access to common amenities, including the lift, and disconnected the water supply. He further alleged that the society imposed monthly maintenance and security charges of Rs. 11,500, compared with Rs. 2,000 charged to other unit holders.

Following a 22 July 2024 Gauhati High Court order concerning non-payment of rent by the State Bank of India and restoration of amenities, Gupta deposited Rs. 66,000 towards arrears under protest.

He approached the Assam Real Estate Regulatory Authority on 23 July 2024 under Section 31 of the RERA Act, which permits an aggrieved person to file a complaint regarding contraventions of the Act, against both Shakti Developers and the housing society.

Shakti Developers maintained that the units had already been handed over to the allottees and that the housing society was managing the building.

The society defended the maintenance and security charges and said the access restrictions were linked to security concerns arising from the operation of a commercial bank in an otherwise residential building.

The Authority held that Section 31 permits complaints only against promoters, allottees and real estate agents. While the Explanation to the provision includes an association of allottees within the meaning of a “person”, it only enables such an association to file a complaint and does not make it a category of person against whom a complaint can be filed.

It further held that disputes concerning lift access, water supply and allegedly excessive maintenance and security charges were essentially matters concerning the internal administration and management of the housing society.

The Authority said such grievances could be pursued before the appropriate civil court, authority governing the society or Consumer Forum. On the issue of the occupancy certificate, however, the Authority took a different view.

It noted that Gupta's assertion that Shakti Developers had neither obtained nor furnished the occupancy certificate remained uncontroverted and that no occupancy certificate had been placed on record. It held that the promoter's obligation to obtain the certificate does not end merely because possession of the units and common areas has been handed over to the association of allottees. It held:

“This is a distinct, non-delegable and continuing statutory obligation of the promoter. It is not discharged merely by handing over possession of the units and the common areas to the association of allottees.”

Accordingly, the Assam RERA dismissed the complaint against Shakti Square Housing Society for want of jurisdiction and disposed of the complaint against Shakti Developers except on the issue of the occupancy certificate. It directed the developer to obtain the occupancy certificate and furnish an authenticated copy to the Authority, Gupta and the housing society within 90 days of the 21 August 2026 order. It also allowed Gupta to approach the Authority for further action if the developer failed to comply.

Appearances for complainant (Shri Amar Gupta): Advocate Manab Jyoti Hazarika.

Appearances for respondent No. 1 (M/s Shakti Developers): Advocate Shalini Bajaj. Respondent No. 2 (M/s Shakti Square Housing Society) was represented by its President, Nayan Moni Medhi.