Order passed by Real Estate Appellate Tribunal (TNREAT) Dated : 09.09.2020 Coram : Mr.Justice B.Rajendran, Chairperson Mr.N.Balasubramanian, Judicial Member Ms.Leena Nair, Administrative Member Appeal No. 67 of 2019 1. K.S.Prateep kumar 2. Srividhya — Order passed by Real Estate Appellate Tribunal (TNREAT) Dated : 09.09.2020 Coram : Mr.Justice B.Rajendran, Chairperson Mr.N.Balasubramanian, Judicial Member Ms.Leena Nair, Administrative Member Appeal No. 67 of 2019 1. K.S.Prateep kumar 2. Srividhya Order passed by Real Estate Appellate Tribunal (TNREAT) Dated : 09.09.2020 Coram : Mr.Justice B.Rajendran, Chairperson Mr.N.Balasubramanian, Judicial Member Ms.Leena Nair, Administrative Member Appeal No. 67 of 2019 1. K.S.Prateep kumar 2. Srividhya Order passed by Real Estate Appellate Tribunal (TNREAT) Dated : 09.09.2020 Coram : Mr.Justice B.Rajendran, Chairperson Mr.N.Balasubramanian, Judicial Member Ms.Leena Nair, Administrative Member Appeal No. 67 of 2019 1. K.S.Prateep kumar 2. Srividhya

Order passed by Real Estate Appellate Tribunal (TNREAT)

Dated : 09.09.2020

Coram : Mr.Justice B.Rajendran, Chairperson
Mr.N.Balasubramanian, Judicial Member
Ms.Leena Nair, Administrative Member

Appeal No. 67 of 2019

1. K.S.Prateep kumar
2. Srividhya … Appellants

Vs

1. S.Elayaraja
2. S.Sivaraj … Respondents

Counsel for Appellants – Mr.T.K.S.Gandhi
J.T. Rajasurya
M. Arun
S. Aravind
N. Berlin Prabhu

Counsel for Respondents – Mr.Abu Becker Siddique

Short notes of the Order

1. Appellants are the Complainants in the original Petition who are home buyers and the Respondents/Respondents are the developers.

2. The case of the home buyers is that the developers advertised they are developing the group development in area of 11769 Sq.ft Comprised in S.No.404/13 as per CMDA planning permit No.1670/05 dated 22.11.2005 situated at Okkiam Thoraipakkam Village. There are 5 building blocks comprised with 26 flat units. The home buyers have booked a flat in the first floor. Having received entire amount the developer did not handed over the flat. Hence approached ReRa.

3. The case of developers is that the disputed project does not qualify for being registered in ReRa as per section 3(2)(a) of the Tamil nadu Real estate (Regulation and development) Act 2016. They contended the building is a standalone building not does qualify for ReRa as developed only in an area of less than 500 Sq.m. Also contended the dispute can only be resolved through Civil Court.

4. The Real Estate Regulatory Authority (ReRa) enquired the case on the preliminary issue of maintainability of Complaint and decided that project does not come under the purview of RERA Act 2016 and dismissed the complaint as not maintainable. After which the Complainant/Home buyer filed appeal.

5. The home buyer contended that the project is 11759 Sq.ft which is equal to 1093 Sq.mt and it is ongoing project, whereas the developer contended it is stand alone project of less than 500 Sq.mt. The Learned Appellate authority had ordered that the Land owner is one Mr.C.A.Prabhakar purchased “A” and “B’ schedule property measuring 11822.5 Sq.ft has applied for plan approval on the basis of sale deed in which the total measurement is mentioned as 11759 Sq.ft. It is equivalent to 1092.84 Sq.mt from the above said total land the disputed land measuring 3010 Sq.ft. was sold by land owner Prabhakar in favour of home buyers thorough his power agent Mr.Elayaraja, who is the developer herein. Only the construction agreement is entered between the developer Elayaraja of Grand style constructions with home buyer. The above words are no way connected with the sale deed because there is no link between the construction and the land owner. Whereas in sale deed Prabhakar is only the owner of developed lands and Elayaraja of Grand style constructions is mere power agent. The land owner had purchased 11759 Sq.mt equivalent to 1092.84 Sq.mt planning area for the purpose of development. Hence land owner Prabhakar will come under the definition of Section 2 (zh) (zn) and (zk) as a promoter. Mr.Elayaraja is not a promoter he is only power agent and building constructor.

6. The next issue analyzed by the Learned Appellate authority is whether the land owner who is the promoter is developing only 3010 Sq.ft of more than that. It is admitted case as per the Legal notice of the Developer/Respondent there are five projects having 26 flats in the same location namely – 1.Project Grand melody – 6 flats, 2. Project Grand Symphony – 5 flats, 3. Project Grand Harmony – 5 flats, 4. Project Grand Rhymes – 5 flats, 5. Project Grand Rhythm – 5 flats. Moreover in all 5 projects at present 15 out of 26 flast have been given possession and flat owners enjoying possession of flat. So the intention of promoter to launch 5 projects for 26 flats in different phases is clearly reflected. Therefore it exceeds 500 Sq.mt and 8 flats and hence exemption clause 3(2)(a) is not applicable to the present Real estate project of land owner as well the promoter.

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