Appeal No.

AT006000000052195
ln
Complaint No. CC00600000007860 of 2019

BEFORE THE MAHARASHTRA REAL ESTATE

APPELLATE TRIBU NAL, MUM BAI

Appeal No. AT006000000052195

In
Complaint No.CC006000000078620 of 2019

Techno Drive Engineering Pvt. Ltd.

Address :
154, Udyog Bhavan,
Sonawala Road,
Goregaon (East),
Mumbai - 400063 ... Appellant

Versus

Renaissance Indus Infra Pvt. Ltd.

Address :
Hubtown Solaris, 6th Floor,
Office No. 601, Prof. N.S. Phadke Marg,
Opp. Teli Gali, Vijay Nagar,
Andheri (East),
Mumbai - 400069. ... Respondent

Adv. Mr. Satish Dedhia for APPeIlant

Adv. Mr. Sachin Pawar alongwith Adv. Mr. Harshad thadbhade
for Respondent

co RA M : SHRIRAM R. JAGTAP, MEMBER (J) &

s. s. SANDHU, MEMBER (A)
DATE : 14th October, 2022.
(THROUGH VrDEO CONFERENCTNG)

JUDGMENT

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Complaint No. CC00600000007860 of 2019

IPER: S. S. SANDHU, MEMBER (A)l

This Appeal is preferred against the order dated

26,11,2019 passed by learned Member II, MahaRERA (the

Authority, for short) in the complaint filed by the Appellant.

2. Brief facts necessary for disposal of the Appeal are as

under:

Appellant originally booked unit Nos. 8 and 9 for Rs.

38,08 lacs and Rs. 33.92 lacs respectively in March, 2013.

However, Respondent subsequently cancelled the unit No. 9 and

transferred the amount paid therefor to unit No. 8. Appellant

claims to have paid an amount of Rs.19,49,992 including stamp

duty, registration charges, etc. for the units and as per Clause 15

of the agreement executed by parties Respondent promised to

give possession by 31,05.2015. As Promoter failed to give

possession even after the agreed date Appellant filed the

complaint to seek inter alia refund of the paid amount.

3. Learned Member (the Authority, for short) heard the

I
,L--/
r-
parties and passed the impugned order. The Order reveals that,

considering other pleas as irrelevant, the Authority examined only

the plea of Respondent objecting to the complaint on the ground

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Complaint No. CC00600000007860 ot 2019

that the RERA provisions were not applicable to the industrial units

booked by Appellant. After a comparative study of the deflnitions

of 'apartment' under Section 2(e) of RERA and definition of 'flat'

under Section 2(a-1) of MOFA, the Authority concluded as follows:

"Afrer comparing these two definitions, I find that the MOFA is

applicable to the premises used for carrying on any industry
whereas the definition of the apaftment does not include the
industrial purpose and therefore, there remains no doubt in my
mind that the industrial units are not included in the definition of
apartment defined by RERA".

4. The Authority further examined the definition of 'Real

Estate Project' under Section 2(zn) of RERA and recorded

observations and final conclusions in paras 7 to 9 of the impugned

order as under:

" 7. Therea frer, I turn to the defin ition of Rea I Esta te Project defined
by Section 2(zn). It is,

"real estate project" means the development of a building

or a building consisting of apaftments, or converttng an existing
building or a part thereof into apartments, or the development of
land into plots or apartments, as the case may be, for the purpose
of selling all or some of the said apartments or plots or building, as
the case may be, and lncludes the common areas, the development
works, all improvements and structures thereon, and all easement,

4a
n rights and appuftenances belonging thereto;"

B. Afrer perusing this definition, I find that the apartments,

plots or buildings are included in the definition. Since the industrial
 Appeal No. AT006000000052195
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Complaint No. CC00600000007850 of 2019

units do not come into the definition of apattment as discussed

above, I find that the building consisting of the industrial units or
part thereof wilt not amount to Real Estate Project deftned by RERA.

9. After looking into these legal aspects of the matter, the

only conclusion which can be drawn is, the provisions of RERA are
not applicable to the industrial units. The learned Advocate of the
Respondents submits that though the building is registered as Real
Estate Project by the Respondents with MahaRERA, some part of it
is for the godowns. Afrer taking these matters into consideration, I
hold that RERA is not applicable to the units booked by the
complainants and therefore, the question of contravention or
violation of its provisions does not arise' Hence, complaint is
dismissed."

5. The above order is challenged in the present Appeal by

Appellant to seek inter alia refund of the amount along with

interest and compensation under Section 18(1X3) of RERA with

alternate prayers to revoke registration of the project and to

remove all material relating thereto from public domain declaring

that RERA was not applicable to the proiect.

6. Heard learned counsel for the parties. Learned counsel

for Respondent adopted submissions and arguments made in the

connected Appeal No. AT006000000031585 filed by Respondent.

7. Learned counsel for Appellant submitted that in view

inter alia of extreme delay in possession by May, 2015 as agreed

in the AFS, Appellant was constrained to withdraw from the

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booked units and filed complaint seeking reliefs under Sectlons

!2, 14,18, 19 read with Section 31 of RERA for refund of the

amount with Interest and compensation. While considering the

reliefs as sought, as per M/s. Newtech Promoter and

Developers Pvt. Ltd. V/s. State of Uttar Pradesh [Civil

Appeal Nos. 5745, 6749 and 6750 to 6757 of 20211, scope of

enquiry was limited to examine admitted and indisputable

documentary evidence about agreed date of possession, amount

paid and the specified rate of interest which warranted only

minimal scrutiny with no discretion whatsoever. In this process,

neither law intended nor granted any authority to learned Member

to interpret and analyse the law. Considering the fact that Project

and building were voluntarily registered by Respondent, the

Authority ought to have applied RERA provlsions as it is' By

interpreting the clauses of RERA the Authority has not only

J
!l travelled beyond its jurisdiction and scope of enquiry but also

acted against the provisions of law.

B, Alleging that the Authority adopted a narrow approach

while holding the industrial units not covered under RERA, it is

contended that the Authority ignored the following facts:

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Complaint No. CC00600000007860 of 2019

a) The project in which Appellant booked the unit is

registered under RERA on 31.08.2017 whereby

Respondent has accepted various conditions and

obligations imposed on Promoter of an incomplete and

ongoing project.

b) Consideration is accepted by Promoter and possession is

promised by 31,05.2015. By revising the completion date

to 2030 Promoter has already accepted the delay in

possession of the unit,

c) By inter alia excluding jurisdictlon of Civil Coutts under

Section 79, provlding Appeal under Section 58, CPC not

made binding under Section 53(1) and 53(3) with powers

of Civil Courts provided under Section 35 and 53(4),

provisions of Section 88 of RERA being in addition to other

Acts etc., the entire scheme of RERA intends to bring all

issues under one umbrella and one regulation as held in

the Neelkamal Realtors Suburban Pvt. Ltd. & Anr.

Vs. Union of India & Ors. l(2017) SCC Online Bom

93021.

d) MOFA ls held to be valid and applicable in paras 261, L22,

L24 and 255 of the Neelkamal Realtors (Supra). Having

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Complaint No. CC00600000007860 of 2019

held in para 6 of the order that MOFA was applicable to

the unit of Appellant, Authority ought not to have

considered the factors mentioned in para 5 of the

impugned order.

e) Having subjected itself to the jurisdiction of RERA by

registering the project Respondent cannot argue that
provisions of RERA are not applicable to Appellant's units

as per the view held in the case of Lavasa Corporation

Vs. Jitendra Jagdish Tulsiani [(2018) 5 AIR BOM R

ss3l,

In the aforesaid circumstances, the Authority ought to

have taken the cognizance of above facts and decided the

complaint on its merits.

9. It is further submitted that RERA under Sections 5 and

11 imposed obligations on Promoter to upload/submit documents,

4 plans, etc. on MahaRERA webpage regarding which the Authority

is required to conduct enquiry as per Rule 6 and 7 of RERA before

coming to a conclusion. Appellant contended that the Authority

took into consideration only few pre-printed standard documents

used by Respondent for all types of units and came to an incorrect

conclusion that RERA was not applicable to the subject unit or

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project. While doing so, Authority made a fatal error in ignoring

several documents which indicated that subject project of

Respondent is not purely and exclusively an industrial project. To

substantiate the said contention Appellant submitted following

facts/ documents on record.

(i) Environment Clearance Report submitted by Appellant to

obtain revised clearance for further expansion indicates

that the project admeasuring 7,29,570 sq.mtrs. (Page

194) consisting of residential and commercial units is an

'integrated industrial area' project.

(ii) The said expansion proposal listed at entry 1217 of agenda

of Environmental Committee confirms (page 192) that the

project of Respondent is an'integral industrial area.'

(iii) As per Government notification dated 30.04.2016 (Page

_l
*,
277) uploaded by Respondent on MahaRERA site the

project is declared as integrated industrial area.

(iv) Application dated 31.07.2017 (Page 278) of Respondent

uploaded on MahaRERA website as submitted to MMRDA

for approval of building plans is for the 'Notlfied

integrated industrial area' which further states that

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Project aims at setting up industrial park with residential

units and commercial facilities. Extract of Respondent's

website (Page 195) also confirms that Respondent has

sold units to companies for warehouses or godowns.

(v) Old Master plan of the project (Pages 74-75) also reveals

that though project is named as industrial park it consists

of warehouses, industries, textile parks, etc, The project

was also expanded in the subsequent periods.

(vi) Allotment letter dated 03.04'2013 (Page 92) issued to

Appellant also confirms that units sold to Appellant are

situated in Sector-1b for warehousing.

(vii) As stated in para 4(e) the Appeal, subject Units were

purchased for shifting its existing set up the leave and

license agreements for which are for the purpose of

-L warehousing, office and commercial purpose at Pages

147, L53,L6O and 165 respectively. Hence the units of

Appellant are for commercial purpose.

10. Learned Counsel for Appellant submitted that from the

above facts it is crystal clear that neither the units sold to

Appellant fall in industrial sector nor the Appellant intended to use

the same for industrial manufacturing' It is therefore argued that

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complaint No. cc00600000007860 of 2019

impugned order is perverse as it is passed in ignorance and

contrary to the relevant facts evident from the record submitted

before MahaRERA.

11, Appellant further contended that project of Respondent

is a real estate project as defined under
Section 2(n) which does not differentiate projects on the basls of

usage as legislature never intended to exclude any project with

reference to its use and it also does not fall in the category of

projects which are provided to be excluded under Section 3(2) of

RERA, It is further submitted that definition of apartment under

Section 2(e) itself suggests that name and nomenclature is not

important to decide what is an'apaftment'. Appellant explained

that it should be construed to be a separate and self-contained

unit irrespective of its use for residential or commercial i.e. non-

residential purpose. The purpose of the aforesaid classification as

I residentlal or commercial use is not at all to exclude industrial use.

12. It is also argued that though legislature defined the

words'apartment','bullding' and even the'immovable propefi',

it purposely dld not define the word 'plot'as it never intended to

make classificatlon on the basis of use of land i,e. resldential,

commercial or industrial. Appellant contended that the expression

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immovable propefi as defined under Section 2(z) covers

everything attached to earth including commercial places, offlces

and godowns for which Appellant intended to purchase the said

unit. It is argued that legislature has defined the'apartment' in a

wider open-ended manner to cover under it all kinds of immovable

properties to achieve objects of RERA and did not intend to

exclude any type as erroneously held by the Authority in the

impugned order.

13. Appellant also argued that it appears that impugned

order is passed considering the'industry'or'industrial use' as used

in general parlance without appreciating the facts in para 10

above that subject unit and the project cannot be considered

purely as an industrial area. The industrial area which the

Authority intended to be excluded, at the most, would be a

standalone factory or industrial premises which is not comparable

0
with the project and units involved in the matter under
4 consideration and which are actually covered under RERA.

t4. In view of the above submissions, Appellant argued that

view taken by the Authority on the basis of usage to exclude units

purchased by Appellant outside purview of RERA is against the

aforesaid provisions, Appellant also relied upon order dated

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27.09.2019 of Tamil Nadu Real Estate Appellate Tribunal passed

in Appeal No. 55 of 2017 which held that the entire RERA and

legislative history clearly indicates that the very purpose of

enactment is for regulation of sale of plots and apartments only

without any differentiation of plots into housing plots, commercial

plots and industrial plots, Appellant particularly argued that the

impugned order is even contrary to the own order of the Authority

passed earlier on 20.03.2019 which allowed complaint No'

CC006000000054729 in the same project whereby Respondent

was directed to execute conveyance deed and handover

possessron.

15, Appellant further argued that RERA is a welfare

legislation enacted to provide protection and remedies to the

Appellant against Promoter to deal with various evils as stated in

,T, paras 181 and 182 of the Neelkamal. It is further submitted that

in para 25 of M/s. Newtech it is held that Allottees have

indefeasible right under Section 18(1) to get return of the amount

if Promoter fails to deliver possession as agreed for the reasons

not attributable to Allottees. Appellant argued that in the present

case Promoter having failed to handover possession by the agreed

date is under obligation to refund amount under Section 1B(2)

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with interest. Appellant contended that however the Authority by

holding the units purchased by Appellant to be industrial units not

covered under the purview of RERA disregarding the facts and

documents on record and taking view contrary to the provisions

of RERA has defeated the objects of RERA thereby rendering the

Appellant remediless.

16. In the above circumstances, without prejudice to the

aforesaid contentions Appellant submits that, even if conclusion

as arrived at in the impugned order may ultimately be held as

correct, it will not apply to the units purchased by Appellant. In

that view of the matter, Appellant submitted that taking into

account that considerable time is already wasted in multiple

rounds of litigation and having regard to the Preamble and

Objects of RERA, the Tribunal must decide all issues at the

appellate stage itself instead of remanding the matter back to the

)
&
lower authority on account of the failure of the Authority to

properly deal with the case of Appellant. It is contended that

being the final fact finding authority the Trlbunal has ample

powers to consider all facts and documents sufficiently placed

before the Tribunal in the background of the fact that reasonable

opportunity has also been given to Respondent, To substantiate

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the aforesaid contentions, Appellant has relied upon Judgments

in the cases of (1) Kalka Prasad Ram Charan Vs. Harish

Chandra [1956 AIR 1957 AII 251Q) M. J. Thomas and Ors.

Vs. State of Kerala and Anr. [1998 AIR 1998 Ker 285] and (3)

N. M. Venkataramana Vs. Koosappa Gowda 2017 in Second

Appeal No. 61 of 2016.

t7. On the contrary, learned Counsel for Respondent

adopted the arguments as made in the connected Appeal filed by

it as mentioned in para 6. Referring to the pleadings of the

pafties, Respondent supported the view taken by the Authority

that industrial Units are not covered under RERA. It is therefore

contended that units booked by Appellant being the industrlal

units do not fall within the purview of RERA. Contentions as urged

by Respondent are summarised as follows:

(i) It is evidently clear from the recitals of the sale agreement

4 between the parties that Appellant was well aware that the

project undertaken by Respondent is an industrial project as

approved by Directorate of Industries, Government of

Maharashtra (DIC, Maharashtra) vide Order dated

22.08.2008 as per which Respondent was given permission

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to procure lands for setting up Industrial Estate for Service

Industry.

(ii) The 'industrial Units' which are subject matter of transactions

as per the agreement between the parties are not amenable

to RERA provisions being outside the purview of definitions

of 'Apartment', 'Building' and 'Real Estate Project'

contemplated under sub-clauses (e ), (j) and (zn) of Section

2 of RERA respectively as reproduced hereunder for ready

reference and consideration.

"2(e) "apartment" whether called block, chamber, dwelling

unit, flat, office, showroomr shop, godown, premises,
suit, tenement, unit or by any other name, means a
separate and self-contained paft of any immovable
propefi, inctuding one or more rooms or enclosed
spacesl located on one or more floors or any part
thereoe in a building or on a plot of lan4 used or
intended to be used for any residential or commercial
use such as residence, office, shop, showroom or
godown or for carrying on any business, occupation,
profession or trade, or for any other type of use
ancillary to the purpose sPecified;
4a/ 2(j) "buitding" includes any structure or erection or part of
a structure or erection which is intended to be used
for residential, commercial or for the purpose of any
business, occupatioq profession or trade, or for any
oth er rela ted p u rPoses;

2(zn) "real estate proiect" means the development of a

building or a building consisting of apattmentq or
convefting an existing building or a part thereof into
apartmentq or the development of land into plots or

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Complaint No. CC00600000007850 of 2019

apartment, as the case may be, for the purpose of

setling all or some of the said apattments or plots or
building, as the case may be, and includes the
common areaz, the
development works, all
improvements and structures thereon, and all
easement, rights and appurtenances belonging
thereto;"
(iii) It may be seen that definitions of 'Apartment', 'Building' and

'Real Estate Project' as above do not include expression

'industrial'. It therefore implies that real estate units to be

used for residential and commercial purposes only are

covered under RERA provisions and the industrial

projects/units, as is the case under consideration, have been

excluded from the purview of RERA' It is thus evident that

the legislature never intended to include 'industrial use' in

the scope of RERA and in this regard, the doctrine of 'casus

omissus' is applicable while ascertaining the true intention

of the legislature,

(iv) The above contention is also substantiated by the fact that

I&
-./ \
even the recommendation made by the Standing Committee

on Urban Development (2013-2014), 15th Lok Sabha,

Ministry of Housing and Urban Poverty Alleviation in its 30th

Report on the draft Bill of RERA to include expression

'Industrial Use' in the definition of 'apartment' came to be

rejected. In the ultimate result, the Bill containing the

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provisions excluding the'Industrial Use'came to be passed

by the legislature.

(v) It may be appreciated that as per the law laid down by the

Constitution Bench of the Hon'ble Supreme Court in the case

of Kalpana Mehta Versus Union of India [(2018) 7 SCC

11, the Parliamentary Committee Report can be taken aid of

for appreciating historical background of statutory

provisions as also for resolving any kind of ambiguity in a

provision and hence the reliance of the Appellants over the

Standing Committee Report is well placed.

(vi) Perusal of statement of object of the RERA also would make

it amply clear that the RERA is enacted for regulation and

promotion of Real Estate Sector and to ensure sale of plot,

apartment or sale of real estate project only keeping

industrial projects strictly outside the realm of RERA. As per

recitals of sale agreement, the units booked by Appellant

were to be used for industrial purpose and hence the same

did not fall in the purview of RERA.

(vii) In view of the above, considering various recitals of the

agreements, the nature of project, etc. Respondent cannot

be termed as Promoter in terms of Section 2(zk) of RERA

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Complaint No. CC00600000007860 of 2019

and therefore RERA not being applicable to the agreement

between the parties, Appellant cannot be held entitled to

reliefs inter alia under Section 18 of RERA as sought in the

complaint.

(viii) It ought to be further appreciated that, in exercise of its

legislative powers under Articles 245 and 246 of the

Constitution, the Parliament has enacted the legislation of

RERA as per subjects assigned to it under Entries 6 and 7 of

List III (Concurrent List) of the Seventh Schedule which

pertain to transfer of property and contracts not relating to

agriculture land. However, the subject of 'Industry' 'falls

under Entry 24 of List-II (State List) ofthe Seventh Schedule

and thus RERA, a parliamentary legislation under List-III,

cannot encompass the area of Industry and thus rightly

omitted to be governed by RERA. Also it may be appreciated

-!" that project is sanctioned under MIDC Act and RERA will not

apply for regulation of affairs of the plots/units in the

project. RERA provisions therefore will be repugnant to

MIDC Act and will not apply to the present case considering

the legal position as explained in paras 24,25,27 and 32 of

the judgment in the case of Forum for People's

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Collective Efforts (FPCE) and Anr. Vs. The State of

West Bengaland Anr. (West Bengal-HIRA).

(ix) It is peftinent to note that none of the'Industrial Projects'

are registered under RERA on the website of MahaRERA so

far which also makes it evidently clear that 'Industrial

Projects' do not fall within the purview of the RERA'

In the light of above submissions, Respondent urged the

Tribunal to uphold the impugned order and dismiss the appeal

with costs.

18. In rejoinder to the above contentions of Respondent,

learned Counsel for Appellant submitted that most of the

contentions as raised by Respondent are submitted for the first

time at the appellate stage without however, disputing the

documents submitted and relied upon by Appellant. It is

reiterated that despite having the option to register the project

.l+- partly or in a phased manner, the Promoter has registered

entire project alongwith the building in which units are sold to

Appellant by subjecting itself to the jurisdiction of RERA. It is

accordingly contended that it is now not open to Respondent

to dispute applicabillty of certain provisions of RERA which

being a welfare legislation seeks to protect rights of Allottees'

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Appellant contended that, as already submitted earlier, by

definition of 'apartment'and 'Real Estate Project' RERA aims to

classify all apartments under two broader categories i.e,

residential and commercial and the Appellant has purchased

units in the registered project of Respondent.

19. Appellant submitted that in the above situation the

Promoter is duty bound to complete and handover the same as

per provisions of RERA failing which remedies are provided to

aggrieved Appellant. It is contended that the aforesaid

definitions are to be interpreted accordingly. It is argued that

any other interpretation with narrow meaning as done in the

impugned order would defeat objects of RERA. Appellant also

contested contention of Respondent based on judgment of

West Bengal - HIRA (Supra) regarding repugnancy of RERA in

{
view of MIDC Act under which the project of Respondent is

sanctioned, Learned Counsel submitted that the said judgment

has no relevance in the present matter, as there is no

inconsistency between RERA and MIDC and subject matters of

both Acts are different, Appellant asserted that if at all there

exists any inconsistency RERA will prevail as per Section 89 and

hence RERA is not repugnant to MIDC Act.

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20. Appellant also submitted that contention of Respondent

that as the industry falls under Entry 24 of List II of 7th Schedule

to Constitution and hence cannot be governed under RERA is

incorrect and of no help to Respondent. It is contended that

position of law as also held in Neelkamal is settled that as per

Article 247 Parliament is competent to make laws on items in the

State List by following due process. It is accordingly argued that

RERA is already held constltutionally valid by the Hon'ble High

Court and the Hon'ble Supreme Court and it regulates sale and

purchase of real estate contrary to MIDC which aims to establish

MIDC as Special Planning Authority. Appellant added that MIDC

does not regulate sale and transfer of units constructed or deals

with the same subject that can be regulated or decided by RERA.

Hence, it is contended that there being no overlapping as alleged

between the two Acts, there is no repugnancy'

)Jl
l 27. Appellant also contested claim of Respondent that
+
industrial projects are not registered with MahaRERA and

submitted on record (Page 377) an extract downloaded from

MahaRERA website showing atleast 91 industrial projects which

are registered with MahaRERA, Appellant therefore argued that

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complaint No. cc00600000007860 of 2019

Respondent is not the exception or the only project registered

under RERA,

22. Having gone through record and on thoughtful

consideration of submissions of the parties, it appears that the

Appellant has raised broadly three grounds to challenge the view

taken by the Authority regarding non-applicability of RERA to the

project/units which are subject matter of the transaction between

the parties. First, applicability of RERA is not usage based and

real estates classified into two broader categories i.e, residential

and non-residential use are covered by RERA as per definitions of

'apartment'and 'immovable propefi' under Section 2 of RERA.

Second,'integrated industrial project' of Respondent consisting of

units with residential, commercial, industrial, etc. usages not

being exclusively for industrial use is liable to the jurisdiction of

RERA. Third, once the project is registered under RERA all

provisions of RERA would apply thereto irrespective of usage of

real estate units it is consisted of.

23. Having regard to the foregoing contentions of the parties,

especially the concerns raised by Appellant as above, in our

considered view following points fall for our examination and

determination:

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Sr.No. Points Findinqs

1 Whether RERA is applicable to

the industrial projects /units? No

2 Whether the view held by the

Authority in respect of units
transacted by the parties is Yes
sustainable?

3 Whether impugned order calls No

for interference?

The reasons for the above findings against points under

consideration are discussed hereunder.

Point 1

24. At the outset, it is to be observed that the point under

consideration has arisen out of contentions of Respondent that as

obtained from definitions of 'apaftment', 'building' and 'real estate

project'quoted above in its submissions, RERA applies only to

4 residential or commercial unit/project and the projects or units for

industrial use are kept out of purview of RERA. Legislative history

is to substantiate the claim by Respondent.

relied upon

Respondent has also contended that the subject of industry'

falling in the State List does not come within purview of RERA and

even sought to argue the repugnancy of RERA vis-ir-vis MIDC Act

for the reason that project is sanctioned under the said Act. While

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we will examine the contentions regarding applicability of RERA

to industrial projects/unit in the account hereinafter, we do not

accept contentlon regarding RERA being repugnant to MIDC Act.

It is settled position of law that RERA as specially enacted by

Parliament is already held constitutionally valid by the Hon'ble

Bombay High Court in Neelkamal and the Hon'ble Supreme

Court of India in the Newtech. Contention of Respondent

therefore regarding repugnancy of RERA vis-ir-vis MIDC Act in the

light of West Bengal-HIRA Judgment merits no consideration as

both the Acts operating in their independent domains are not

inconsistent to each other. In addition, in case of inconsistency,

if any, by virtue of Section 89 RERA shall prevail over any other

law for the time being in force. Hence no repugnancy arises. Now

therefore the question that remains is to see whether RERA is

applicable to the industrial projects/units or not.

) 25. It is contention of Respondent, as obtained from

)-
definitions of 'apartment', 'building' and 'real estate project'
quoted above in its submissions, RERA applies only to residential

or commercial unit/project and the projects or units for industrial

use are kept out of purview of RERA. Legislative history is relied

upon to substantiate the claim. Respondent has also contended

z4
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Complaint No. CC00600000007860 of 2019

that the subject of industry'falling in the State List does not come

within purview of RERA and also sought to argue the repugnancy

of RERA vis-i-vis MIDC Act under which project is sanctioned' In

view of settled position of law that RERA is already held

constitutionally valid by the Hon'ble Bombay High Cout in

Neelkamal and the Hon'ble Supreme Court of India in the

Newtech, it now only remains to see whether RERA is applicable

to the industrial project or not. Contention of Respondent

regarding repugnancy of RERA vis-ir-vis MIDC Act in the light of

West Bengal - HIRA Judgment merits no consideration as both

the Acts operating in their independent domain are not

inconsistent to each other. In addition, as rightly argued by

Appellant, Section 89 provides that RERA shall prevail in case of

inconsistency, if any,

26. Coming back to the point of applicability of RERA

provisions to real estate unit/ project be used or intended to be

used for industrial use, the Appellant has contended that as per

open ended definition of apartment and immovable property

RERA would apply to all real estates to be used for residential or

commercial i.e. non-residential purpose. It appears to be

suggested that name or nomenclature of usage is not material

25
 Appeal No, 4T006000000052195
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complaint No. cc00600000007860 of 2019

and the industrial use is sought to be covered under the

commercial being of non-residential nature. To test validity and

sustainability of the aforesaid contention of Appellant in view of

the point under consideration, it is essential to examine and

decide whether RERA applies on the basis of usage and covers

industrial project/units in its purview.

27. It is appropriate to mention that applicability of RERA to

industrial project/ unit is examined in the order passed today in

connected Appeal No. AT006000000031585. Accordingly, our

observations on the issue would be in line with the view held

therein.

To begin with therefore, on perusal of provisions of

RERA, we do not find any provisions which expressly provide for

either inclusion or exclusion of industrial projects from the purview

of RERA. In the absence of such express provisions, as argued by

Respondent, we look to the definitions of 'Apartment', 'Building'

and 'Real Estate Project' under Section 2(e), 2(j) and 2(zn)

respective (para 17) for support to resolve the controversy on

hand. On perusal and consideration thereof, we find that the

terms'apartment' and'building' are clearly defined with reference

to the nature of their usages whereas the terms 'real estate

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Complaint No. CC00600000007860 of 2019

project' in general mentions the development of different real

estate variants such as building consisting of apartments, plot,

land etc. are intended to be covered in the term of real estate

project without however making any reference about their usage.

28. 'Apartment' is defined as a flat, office, shop, godown,

premises, suit, tenement etc. which is 'used or intended to be

used for any residential or commercial use' such AS

residence, office, shop etc. 'or for any other type of use

ancillaryto the purpose specified'. The definition prima facie

manifests to restrict the apaftment to be used only for residential

or commercial purpose and it includes any other use which is

'ancillary to the said purpose'. It does not provide any reference

to connote that real estate for the purpose of industrial use is

covered thereunder. Similar situation is also obtained on perusing

the definition of 'Building' under Section 2(j). The term 'building'

herein in simple terms includes any structure or part thereof, the

erection of which is intended to be used for residential,

commercial or for the purpose of any business, occupation,

profession or trade or any other related purposesl Again, this

definition though clearly provides for building to be used for

residential or commercial purpose, it makes no mention about

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industrial use. It is significant to note that, the word 'related'in

the aforesaid words'or any other related purposes'seeks to

restrict the term to the usages as indicated in the immediate

preceding part of the definition relating to residential or

commercial purpose.

29. As far as definition relating to 'real estate project' is

concerned, it appears that this term is provided only to define and

illustrate as to what different variants of real estate or works

would be covered in the sweep of 'real estate project'. It may be

noted that it specifies all broad categories of real estate as defined

or illustrated in the definitions of 'apaftment' and 'building'. It

contains no specific reference to any of the usages whether

residential, commercial or industrial and there to avoid any conflict

in respect of these terms the contemplated usage of the real

estate variants illustrated therein is to be construed in consonance

with the usage for the said real estate as specified in the

definitions of 'apartment' and 'building' i,e. the residential or

,tt
commercial.

30. On conjoint reading and consideration of the above

definitions and in view of the aforesaid observations, it manifests

that in the absence of any reference to the'industrial use'in the

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Complaint No. CC00500000007860 of 2019

relevant definitions as above, the terms of 'apartment' and

'building'and'the real estate project'intend to cover under RERA

the projects on the basis of actual, proposed or intended usages

for residential or commercial purpose or the uses related to the

said specified usages. Accordingly, in our view, RERA

contemplates to bring only those real estate projects or units

within its fold which involve development of apartments,

buildings, plots or any other variants of real estate to be used or

intended to be used for residential or commercial purpose only.

31. Before taking a final view based on the above observations,

one more test may be considered to substantiate the proposition

held as above. In view of the conflicting contentions with regard

to the instant controversy, Respondent citing the view held in the

case of Kalpana Mehta (supra) has sought to rely upon the

recommendation of the Parliamentary Standing Committee on

RERA Bill to argue that the said recommendatlon to include

'industrial use' in RERA was not accepted while enacting the final

law. To impaft clarity on the issue and to rule out any error in final

view to be taken on the point under consideration, we may now

look at the background factors relating to RERA enactment and

the said recommendation as recorded in the 30th Repoft of

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Standing Committee on Urban Development (2013-2014), 15th

Lok Sabha. The relevant part thereof for ready reference and

better appreciation is extracted hereunder:

"CHAPTER-II
PRELIMINARY

Chapter 1 of The Real Estate (Regulation and DevelopmenQ Bill,

2013 contains Clauses 1& 2 which deal with shott title, extent and
commencement of the proposed Bill, 2013 and Clause 2 gives
definitions and meanings of certain words and expressions used in
various provisions contained in the Bill. The Committee will now
deal with some of the provisions contained in these clauses:
Clause 2(d)
2.2 Clause 2(d) reads as under:
"'apartment' whether called dwelling unit, flat, premises, suite,
tenement, unit or by any other name, means a separate and self-
contalned part of any immovable property located on one or more
floors or any part thereof, in a building or on a plot of land, used
or intended to be used for residential purposes, or for any other

type of independent use ancillary to the purpose specified and

includes any covered garage, whether or not adiacent to the
building in which such apartment is located which has been
provided by the promoter for the use of the allottee for parking any
vehicte, or as the case may be, for the residence of any domestic
help employed in such aPartment."
2.3 In its written Memorandum, an NGO has forwarded the
following suggestion:
"section 2(d) definition of apaftment limits coverage of this law
only to residential building. The coverage of all kinds of units
including non- residential units has been removed from the
circulated drafr. It should be changed to include non-residential

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Complaint No. CC00500000007860 of 2019

unit also. "

2.4 On being enquired about the incorporation of the above
suggestion in the present Bill, the Ministry of Housing and Urban
Pove{ Alleviation, in their written replies submitted as under:
'The initial drafr of the Bill mooted by the Ministry was a
comprehensive regulatory 9il for the real estate sedor, which
included both residential and commercial properties. However, it
was suggested during deliberations that the initial focus of the Bi/l
should be on'residential real estate' as most of the concerns of
consumers are relating to this segment of real estate."

2.5 A suggestion was received stating thatthe parking space

and earmarked to the allottee but
should be properly deftned
open parking area should be free of charge forthe allottees.
2.6 The Ministry of Housing and Poverty alleviation was asked

to clarify this aspect. They, in their written reply, stated as under:

'The Bill in clause 2(d) provides for definition of 'apartmenti which
includes 'any covered garage, whether or not adjacent to the
building'. Thus the Bill prohibits the charging of open garages, as
part of apartment cost."
Clause 2(i)
2.7 Clause 2(i) reads as under:
"'Building' includes any strudure or erection or part of a structure

4 or erection which is intended to be used for residential or other

related purposes."
2.8 In a written memorandum Safthak Advocates and
Solicitors have obserued the definition of the "building" must be
changed to include both residential and commercial pqects and
suggested the following change:
" (D 'building" includes any structure or erection or patt of a
structure or erection which is intended to be used for residential,
commercial or other related purposes."

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Complaint No. CC00600000007860 of 2019

2.9 During the Course of oral evidence, Secretary

Depaftment of Financial Services,Ministry of Finance deposed as
under:
' (i) "building" includes any structure or erection or part of a
structure or erection which is intended to be used for resldential,
commercial or other related purposes. in real estate commercial
transactions are also there alongwith residential ones. Commercial
structures are formeQ industrial estates are formed. In our
opinionsince banks are ftnancing al types of proiects, there was
no reason to exclude these proiects. Probably it will be appropriate
that it should have an all encompasslng definition inc/uding
residential, commercial and industrial p@ects. Many a times in
commercial complexes the people seek funding from bank. But
the Builders leave it incomplete and use the funds elsewhere. If
these people can also be covered under the Bill it would be fine "
(proceeding Page -7)

"2.10 fiub- Clause 2(d) of the Bill defines the term

"apartment" that has been used in the Bill. fn the context
of this sub-clause of Bill a suggestion was received that the
deftnition of "apartment" should cover all kinds of units
including non-residential units, From the submission of
the Ministry, the Committee find that the initial drafr of the
Bill mooted by the Ministry was a comprehensive
regulatory Bill for the real estate secto1 which included
residentia l, in dustria I a nd com me rcia I properties. Despite
the fact that most of the concerns of consumers are
relating to residential aspect of the real estate, the
Committee fail to underctand why the comprehensive Bill
was at all revised to its present form. The Commiltee,
tend to agree with the submission madeby Secretary,
Department of Financial Seruices, that banks finance

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Complaint No. CC00600000007860 of 2019

residential as wellas commercial and industrial units also

and they should not be left out of the puruiew of the Bill,
They, therefore, strongly recommend that the Ministry
shoutd bring back the initiaily proposed comprehensive
9ilt. The Committee thus recommend that the definition of
'building' under Clause 2(i) should have an all
encompassing defin ition including residential, commercial
and industrial Proiects."

32. From the above record, it appears that the Bill of RERA

initially contemplated to cover only the residential premises under

definition 2(i). It is significant to note that later during the debates

before the Committee, as recorded in para 2.8 of the project cited

above, Sarthak Advocates and Solicitors in a written

memorandum observed that the definition of the "building" must

be changed to include both residential and commercial projects

and also suggested the definition to be as under:

" "building" includes any structure or erection or part of

0
a structure or erection which is intended to be used for
0 residential, commercial or other related purposes""
,[
.L

Further, Secretary, Ministry of Financial Services suggested to

include industrial projects also as recorded in para 2.9. of the

Report. Considering the suggestions as above, the Committee

made its recommendations in para 2.10 above to include industrial

projects in RERA.

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 Appeal No. AT006000000052195
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complaint No. Cc00600000007860 of 2019

33. Now, on perusing the provisions of RERA as finally

enacted by the legislature, it is crystal clear that the expression

'industrial projects'does not find mention anywhere in the RERA

including its definitions as considered above. It is thus evident

that recommendation of the Committee to Include 'industrial

projects' in the purview of RERA was not accepted, This

establishes that legislature did not intend to cover industrial

projects or use under RERA. In view of the aforesaid observations,

it may be concluded and summed up that usage of 'real estate'

determines its coverage under the provislons of RERA and

accordingly RERA would be applicable to'Apartment', 'Building',

'Plots'etc. to be used or intended to be used only for residential

or commercial purposes or other usages associated therewith.

Conversely, therefore, in agreement with the view advocated by

Respondent, it is safe to hold that RERA would not apply to the

0
4d- industrial projects aimed at development and construction of

plots/units/buildings etc. for the purpose of industrial use as they

fall outside the purview of RERA. A Reference is made by

Appellant to an order dated 27.07.2019 passed by Tamil Nadu

Real Estate Appellate Tribunal wherein a view contrary to the

above view is taken. Considering the reasoned view as recorded

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Complaint No. CC00600000007860 of 2019

in the foregoing observations, we do not think it appropriate to

comment further on the issue. Hence, we answer the Point 1

accordingly.

Point No.2
34. Having held as above, we now advert to see whether the

units purchased by Appellant fall within the purview of RERA.

Thrust of the argument of Appellant is that the project of

Respondent is not purely or exclusively for industrial use as it

consists of units for variety of uses such as residential,

commercial, industrial, warehouses, etc. Comprehensive details

and documents to establish the contentions are submitted on

record. On consideration thereof we have no second thought in

holding that the project of Respondent is an integrated industrial

project beyond any doubt but the said factor itself is not enough

to outweigh the underlying view held as above that RERA would

p
../\ apply only to the units to be used for residential or commercial
a-
use and not to the industrial use. In fact, on the same premises

the plea of Respondent that their project being for the industrial

use is not covered under RERA is rejected in the connected Appeal

No. 4T006000000031585 decided today, In the said matter,

RERA is held to be applicable to the units which are to be used for

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 Appeal No. 4T006000000052195
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Complaint No. CC00600000007860 of 2019

other than the industrial purpose and Respondent is held to be a

Promoter under RERA liable to discharge its obligations in case of

delay in delivery of possession of warehousing units purchased by

the Allottees therein.

35. Considering the above view, applicability of RERA to the

units purchased by Appellant is to be determined. As obtained

from the contentions made in the foregoing account, Appellant in

para 9 (vii) has claimed that units sold to Appellant are not

industrial units but commercial units. To substantiate that they

are for the commercial or non-industrial use, the Appellant has

also relied upon leave and licence agreements which mention the

rented premises for the existing unit to be shifted to the

purchased units as warehouse /commercial premises. The said

documents are of no relevance to declde the controversy on hand

as the nature of operations of the said units which are to be set

J up in the purchased unit are to be taken into consideration.

L 36. As noted above, Appellant's claim appears to be based

on the misconception that there are only two usages under RERA

i.e. residential and non-residential and therefore according to

Appellant commercial will include all non-residential usages, This

proposition cannot be accepted as per the view we held as above

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 Appeal No. AT006000000052195
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Complaint No. CC00600000007860 of 2019

while deciding the point under consideration. Therefore, it needs

to be seen what is the designated use of the units purchased by

Appellant.

37. There is enough material to show at pages 182 to 187

that the units sold to Appellant are for setting up an industrial unit

which operating at another location is proposed to be shifted to

the units purchased by Appellant. Considering the said and other

documents the Authority has rightly recorded its observations in

para 5 of the impugned order. The same is extracted as under to

appreciate the view taken by the Authority and the reasons that

formed the basis thereof.

"5. The only relevant issue which decides the fate of the
complaint ig whether the units booked by the
complainants are industrial units situated in industrial
project and whether RERA applies to them or not. For this
purpose/ I have gone through the complaint and the
documents placed by the complainants on record. It is
clearly mentioned in the documents that the units are

4 described as 'estate units'and they are of big size

mentioned in the documents that the units of Renaissance
. It is

Industrial Park are agreed to be purchased for setting up

industrial business of manufacturing and permitted under
Industrial location Policy which is more particularly
described in second schedule of the agreement. The

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 Appeal No. AT006000000052195
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Complaint No. CC00600000007860 of 2019

industrial inspector has mentioned in 'Entrepreneur

memorandum acknowledgment' marked Exh. "G" of the
complaint that the respondents are the Manufacturers of
Pneumatic Conveying Systemg agitators, special purpose
machines. In the agreement also there is mention of
various permissions obtained for setting up the industrial

units/project. After taking them into consideration, I find

that the industrial project of the respondents is in
industrial area notified by Urban Development
Department of Maharashtra on 21.08.2009. The industrial
department also declared it as industrial area on
06.04.2016 and Maharashtra Industrial Development
Corporation notified it as such on 30.04'2016. The

respondents have obtained final industrial zone

conversion notification on 09.02.2017 by virtue of it the

area is converted from green zone to industrial zone'
After taking all these facts into consideration, I find that
the complainants have booked the units for setting up
their industrial manufacturing units and hence, the
booked units are the industrial units."

n It is evident from the above and documents on record,

-L particularly at pages 182 to 187 that the units of Appellant

though they are part of the Integrated industrial area project

of Respondent, these are meant to be used for the industrial

purpose and therefore these do not fall within the purview

of RERA, Accordingly, contentions of Appellant that the said

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 Appeal No. AT005000000052195
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Complaint No. CC00600000007860 of 2019

units are to be used for warehouse or commercial purpose

and hence these will attract provisions of RERA cannot be

accepted.

38. At this stage another but associated contention of

Appellant is also required to be considered for ascertaining

applicability of RERA to the present case. As mentioned

earlier, it is the contention of Appellant, based on the view

held primarily in Neetkamal, Lavasa and Newtech that

on registering the project of Respondent under RERA,

Respondent has subjected itself to the jurisdiction of RERA.

It ls therefore argued that without having any regard to the

usage of the units, RERA provisions would be applicable to

Respondent's industrial project and Respondent is liable to

comply with all provisions of RERA. It is accordingly argued

that as held in the Neelkama! and Newtech, Appellant is

entitled to reliefs under Section 18 of RERA for delay in

possession, It is further contended that in such cases after

receiving complaint for considering the reliefs as per

provisions of RERA, the Authority is simply required to

consider and declde the same without going behind law or

attempting to interpret the law as the Promoter has already

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 Appeal No. AT006000000052195
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Complaint No, CC00600000007860 of 2019

subjected itself to the jurisdiction of RERA by registering the

project on MahaRERA portal.

39. The contentions as above are misconceived and

erroneous and cannot be accepted for the reason that it is

the fundamental to see first the applicability of provisions of

relevant law while adjudicating the lis that is raised in the

complaint. Merely registration of project would not attract

the provisions of law if statute does not permit the same.

Registration itself does not provide the jurisdiction to be

applied or extended to if it is not envisaged in law. For

instance, as per Section 3(2) redevelopment projects are

kept outslde the purview of RERA and hence disputes

relating thereto are not considered under RERA, However,

redevelopment projects are still required to be registered if

they contain sale component involving third party

purchasers who are covered under provisions of RERA. Such

rehabilitation projects are to be necessarily registered for

\./) \
a extending protection to the third paty purchasers but

despite registration, RERA provisions do not apply to affairs

or matters relating to redevelopment component of such

projects. For the foregoing reasons, we accordingly hold

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 Appeal No. AT006000000052195
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Complaint No. CC00600000007860 of 2019

that in the registered project of Respondent the provisions

of RERA would apply to those units only which are to be

used for residential or commercial purpose and the usages

related thereto and not to industrial uses as contemplated

in the aforesaid definitions under Section 2 of RERA.

Therefore, the Authority was well within its right to consider

and examine relevant provisions of RERA to see their

applicability to the units under consideration in the

complaint.

40. In view of the above observations since it is clear that

units of Appellant forming subject matter of controversy in

the case on hand are industrial units, RERA would not apply

to them despite registration of Respondent's integrated

industrial project with whatever name it is called.

Accordingly, the Authority has committed no illegality in

considering and examining the relevant provisions of RERA

while adjudicating the complaint of Appellant, We also find

no illegality or impropriety in the view finally taken by the

Authority after considering the material before it in the light

of provisions of RERA. Therefore, there is no question of

considering other pleas of Appellant to decide the relief inter

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Complaint No. CC00600000007860 of 2019

alia for refund oF the paid amount without remanding the

matter to the Authority or otherwise, In that view of the

matter, the judgments relied upon by the Appellant to

support its contentions being of no relevance cannot be

considered.

41. In the light of above observations, we answer the

points accordingly and conclude that impugned order does

not call for interference. Hence, the following order:

ORDER

1. Appeal No. AT006000000052195 is dismissed with

directions as follows:

The MahaRERA and the Respondent to ensure to display

in public domain the information that RERA provisions

shall not apply to the industrial units in the project of

Respondent.

2. Parties to bear their own costs,

3. Copy of this Judgment be sent to the respective parties

and Authority as per provisions of Section 44(4) of RERA,

20t6.
(^Kt}'
(s. s. sA ND (sHRr -/t{. r AGTAP)

42