Project With Occupancy Certificate Cannot Be Treated as 'Ongoing Project' Under RERA: Goa RERA

The Goa Real Estate Regulatory Authority has recently dismissed a complaint seeking registration of the “Nuvem Enclave” project under the Real Estate (Regulation and Development) Act, 2016. The Authority held that a project or phase which has already obtained a completion or occupancy certificate cannot subsequently be treated as an “ongoing project” requiring registration under Section 3 of the Act.

The authority, comprising Chairperson Dharmendra Sharma observed that: “The defence raised by the Respondent is persuasive on facts and law. The statutory scheme for determining an 'ongoing project' and if it is a 'registrable' project, embeds within its calculus exclusion of projects or phases thereof, for which completion certificate has been issued.”

The Authority further noted that treating such projects as ongoing developments would impermissibly expand the defined boundaries of “ongoing projects” under the statute beyond what the legislation contemplates.

The proceedings arose from a complaint filed by Shakuntala Mesquita, who claimed ownership and possession of a commercial unit in Building 'A' of the “Nuvem Enclave” property at Salcete, Goa.

Around 2019, Shakuntala Mesquita says she began noticing fresh construction activity on the first floor of Building 'A' of the “Nuvem Enclave” complex. The work, carried out by K.K. Construction through its representatives Rosario Colaco and Tejashri Naik Khavante, appeared to her to depart from the approved building plans.

Mesquita also claimed that the construction caused damage inside her shop, including to its interior portions. These developments led her to approach the Goa Real Estate Regulatory Authority, asking it to direct registration of the project under Section 3 of the Real Estate (Regulation and Development) Act, 2016.

She also sought initiation of proceedings for alleged violation of the Act, cancellation of revised technical clearances and construction licences, and imposition of penalties.

K.K. Construction, along with its representatives Rosario Colaco and Tejashri Naik Khavante, rejected the allegations. In their response, they maintained that the Nuvem Enclave project had been completed well before the Real Estate (Regulation and Development) Act, 2016 came into force and had already secured the necessary occupancy certification.

On that basis, they argued that a project which stood completed prior to the Act could not later be brought within the fold of an “ongoing project” under Section 3 merely because construction activity was alleged to have taken place at a subsequent point in time.

Upon examining the documentary record and approvals placed before it, the Authority noted that the project had already obtained a part occupancy certificate dated 26 March 2004, long before the commencement of the Real Estate (Regulation and Development) Act, 2016. Consequently, the project fell outside the statutory definition of an “ongoing project” requiring registration.

The authority also observed that inconvenience caused by construction activity does not automatically confer jurisdiction upon the real estate regulator.

It stated, “While the dislocation/discomfort of ongoing construction may be a reality for the complainant, yet the remedy of which is to be found in other jurisdictions such as consumer/civil/criminal laws which may have different threshold of assuming cognizance.”

The authority further clarified that disputes concerning technical clearances, construction licences and revised development approvals fall within the jurisdiction of planning authorities such as the Town and Country Planning Department and the Village Panchayat, and not the real estate regulator.

“The Technical Clearance, Construction license and Revision plans are issued by the respective statutory/competent Authorities and not issued/approved by Goa RERA,” it said.

Holding that the project did not qualify as an “ongoing project” under Section 3 of the Act, the Authority concluded that the reliefs sought were beyond the jurisdiction of Goa RERA.

Accordingly, the complaint filed by Shakuntala Mesquita was dismissed.

For Shakuntala Mesquita: Shakuntala Mesquita appeared in person along with Ms. Judith Almeida.

For K.K. Construction, Rosario Colaco and Tejashri Naik Khavante: Advocate Maria Rosette Pereira.