Fwd: Erratic Interpretation of provisions of RERA Act and Related Other Laws by IAS Officers- Hampering RERA Implementation
Ajit Naik
From: Ajit Naik <ajit....@gmail.com>
Date: Thu, 2 Jul 2020 at 11:01
Subject: Erratic Interpretation of provisions of RERA Act and Related Other Laws by IAS Officers- Hampering RERA Implementation
To: <c...@karnataka.gov.in>, <prs-...@karnataka.gov.in>, <prs-h...@karnataka.gov.in>, <rcs...@nic.in>, <regc...@gmail.com>, <addlrc...@nic.in>, <jrcs-l...@nic.in>, <dma...@gmail.com>, <i...@karnataka.gov.in>, <dmabl...@gmail.com>, <info...@karnataka.gov.in>, Vishunuvardhana Reddy Reddy <member...@ka.gov.in>, <member...@ka.gov.in>, <reraka...@gmail.com>, <rave...@gmail.com>
The Government of Karnataka,
Bengaluru
In the past, I have personally met you to handover the representations with respect to the poor implementation of RERA in Karnataka. Subsequently, I had come to your office to handover to you a detailed letter dated 02-10-2019 on very poor way of implementing the RERA disregarding the contents of the Article 254(1) of the Constitution of India and important sections 88 and 89 of RERA with respect to overriding effects of Central Law on the various existing State/Central laws. Along with the letter of 02-10-2019, I had attached the list of 15 letters submitted to various Authorities in Government of Karnataka and RERA Authority since 2016 on RERA implementation with proper suggestions. Many other important Sections No. 2, 11(4)(e), 17, 28 33 are also totally neglected while implementing RERA in Karnataka. There are also gross lapses in implementing (a) explanations to section 3 and (b) Section Nos. 4(2)(c), 11(4)(f), 13, 16 and many other sections of RERA Act. My letter dated 02-10-2019 is attached for ready reference. I had requested you in that letter to form a Task Force consisting of (a)Officials connected with Real Estate Development Activities /Business/Sales and (b) Other Stakeholders consisting of (i) Organisations of Promoters in Real Estate Business (ii) Homebuyers Organisations and (iii) Individual Activists and NGOs who are continuously pursuing with the Government of Karnataka for proper RERA implementation.
After a long delay of 44 months, the Agreement for sale was notified by the Government of Karnataka on 12-06-2020. In fact, the same should have been ready on 11-07-2017 that is the date of Starting implementation of RERA. The Agreement for Sale now Gazette Notifies is copied from some document without application of mind and as such many important provisions of RERA Act were left without including them in the Agreement for Sale. This is nothing but undermining the importance of certain important provisions of RERA Act. I have brought to the Notice of the Secretary to Government of Karnataka, Department of Housing, responsible for coordinating with all the departments concerned with making easy implementation of RERA through the RERA Authority, Adjudicating Officer and RERA Appellate Tribunal. I attach here the suggestion for bringing improvements in the Agreement for sale which is forwarded to the Housing Department and RERA Office. It is my 4 th time attempting the same.
Sir, I believe in issues to be solved by application of the mind of the Government Officers (if required in consultation with the persons giving suggestions and other stakeholders of the Act) rather than questioning the wrongdoings of the Government in the Hon'ble High Court of Karnataka, without giving reasonable time to them to consider the suggestions proposed.
Many sections of RERA are totally wrongly interpreted while framing the Rules, Clarification on Rules and finalising the Agreement for Sale.
I attach to this email the Agenda of the Meeting dated 12-12-2019 held in RERA Office for discussing on the proper type of Association of Allottees of apartments/plots/buildings to be formed in Karnataka. The Registrar of the Cooperative Department (in short-ROCS) was present in that meeting. The decisions to be taken on the Agenda, was to be based on the provisions of Section 11(4)(e) of RERA Act to comply with section 11(4)(f), 17 and 19(3) of the Act. As the decision to be taken in the meeting was with respect to RERA implementation by the State Government, on the Act which is legislated by the Parliament of India on the subjects/entries of the concurrent list, it was a must to keep in mind the Article 254(1) of the Constitution. The Statements of the ROCS, a senior IAS Officer in the meeting are noted in the minutes. He had expressed his views on 4 issues and all his views are contradictory to Cooperative Laws and unrealistic. It was also necessary to all the other officials and the Chairman and Members of RERA Authority present in the meeting to be aware of the provisions of section 88 and 89 of RERA Act on (a) Applicability of the existing laws (both State laws and Central laws) and (b) the overriding effect of the provision of Central Act on the inconsistent provisions of existing other laws. They should have corrected the ROCS on his Statements. From the minutes of the meeting of 12-12-2019, it appears that no such efforts are made neither by the RERA Authority nor by the other Government Officials present in the meeting.
I have submitted to RERA Authority my detailed reply to explain why all the Statements made by the ROCS, a senior IAS Officer were wrong and erratic. I have submitted my reply to RERA Authority during the meeting on 29-06-2020.
The meeting conducted on 29-06-2020 was attended by the upright Officers presently working under the same ROCS who have also endorsed the views expressed by me orally in the meeting and in my letter dated 29-06-2020, negating all the statements of the ROCS made in the meeting conducted on 12-12-2019. The Joint Registrar of the Cooperative Department (Legal Cell), Mr. M D. Narasimhamurthy is an upright Officer with proper legal analytical mind and he clarified all the points involved on the Agenda Note of the Meeting suitably and assured to take further the Agenda of the Meeting on formation of the Association of Allottees of Apartment/Plots/Buildings under Cooperative laws which is the requirement as per Sections 11(4)(e) and 17 of RERA Act, specially recommended by two Committees of the Parliament Members (Standing Committee of Parliament on Housing Ministry of Central Government and Select Committee of Rajya Sabha) on the RERA Bill 2013. The discussions and recommendations of the Standing Committee on forming of Association and transferring the Common Area Land of the Real Estate Project, with proper reasonings, is discussed in detail in my letter submitted to RERA Authority on 29-06-2020 on the Agenda Note.
The attitude of many IAS Officers involved in interpreting the RERA Act and framing the RERA Rules, Explanations on RERA Rules, Drafting of Agreement for sale and approving it and making (recent) Amendments to Section 17 of Karnataka Town and Country Planning Act, 1961 (in short-KTCPA, 1961, related to RERA Act implementation), through Ordinance, is hampering the proper implementation of RERA Act. The Karnataka RERA Authority allowing the continuation of illegal procedures followed during the last 44 years and 3 months in implementation of (18-+27) 45 sections of both KOFA, 1972 and KAOA, 1972 without implementing Authority/Government Officials, is a clear indication that they (RERA Authority) have not applied their mind on the implications of section 11(4)(e) and Section 17 of RERA Act for nearly 50 months . This is the unique case where the Government of Karnataka and its concerned senior officers behaved as if they are blind and allowed implementation /administration of KOFA and KAOA through the promoters of Apartment Buildings. Is there any Act/law framed by the State Legislature or the Parliament as per the Constitution of India, where administration/implementing power of the Act/Law was given in the hands of vested Citizens without Authority or Government Official?
Karnataka RERA instead of working proactively, allowed to continue old illegal procedures with respect to formation of Association and transfer of UDS of each apartment to Allottees contrary to RERA Act provisions. The Karnataka RERA Authority seems to be ignorant of the fact that RERA legislation is mainly to remove all the existing illegalities followed by the promoters in Construction/Development/Sale/ Management/ Transfer of title of Apartment/Plot/building and Common Areas of the Project to the Allottees and Association of Allottees by following proper procedures to comply with (a) section 3 and 54 of the Transfer of Property Act, 1882 and Section 2(6) and 17 of the RegistrationAct, 1908. In the circumstances, the casual style of functioning of RERA Authority, and ignorantly, has no way helped to bring satisfaction to lakhs of homebuyers who are in the process of purchasing apartments in the Ongoing Projects and New projects. The ultimate purpose was to remove the difficulties/ harassments/cheating suffered by the Homebuyers of every kind in the hands of the promoters of the projects. The poor implementation of RERA provisions and very poor recovery on Orders issued by the RERA Authority, the Adjudicating Officer and RERA Appellate Tribunal have in no way helped the homebuyers in reducing their sufferings. The RERA Authority and its supportive staff is grown as a white elephant to the exchequer of the Government without giving required benefits to the homebuyers. RERA Act is being implemented with Regulations as required under section 85 of RERA Act for the last 3 years. This is another horrible way of implementing RERA, keeping all the stakeholders in total darkness. Implementation of any act without regulations is the route cause of many illegalities in the system. The RERA Authority and the Government of Karnataka should make drastic changes in implementing various provisions of the Act properly and discipline the Promoters, if they fail to respect the recovery orders issued against them, by enforcing section 7 and 8 of RERA.
Though the RERA Authorities are supposed to implement the provisions of RERA Act disregarding the Rules made by the State Government if Rules framed are against the provisions of the Central Act-RERA. Somehow, in Karnataka, the RERA Authority and the Adjudicating Officers are following the provisions of the State RERA Rules as superior one though they are contradictory to RERA Act provisions. It is not the proper way of Any Authority functioning. In other States, many RERA Authorities, Adjudicating Officers and RERA Tribunals have given many orders against the provisions of the State RERA Rules. The Bombay High Court judgment on writ petition No.2727 of 2017 (writ petition Lodging NO. 1967 OF 2017)-Case Name: D. B. Realty Limited and Another. vs. The Union of India (along with a batch of writ petitions) dated 06-12-2017 upholding the Constitutional validity of all the provisions of the RERA Act has opined that the States cannot make the Rules against the provisions of the Act. This hearing was made by transferring all writ petitions filed in different High Court to Bombay High Court at the direction of the Supreme Court. The Karnataka RERA Authority and the Adjudicating Officer have also neglected the contents of this important decision of the Bombay High Court Division bench of two judges.
Sir, implementing any act without following all its provisions interlinked with other sections of it, is nothing but not implementing the Act. There are many judgments of High Courts and Supreme Courts in this regard. Some of the important judgment in this regard are referred below:
(1) Durga Shankar Mehra vs. Thakur Raghuraj Singh and others.
(2) Babu Verghese and Others v. Bar Council of Kerala and Others.
(3) Rao Shiv Bahadur Singh vs. State of U.P.
(4) Deep Chand v. State of Rajasthan
(5) State of U.P. v. Singhara Singh.
(6) Paul Parambi, Chief Promoter, Springs Ltd and another versus Bombay Dyeing & Manufacturing Co. Ltd. And another
All the above judgments are based on internationally acknowledged very old judgments on Taylor vs. Taylor, and Nazir Ahmed vs. King Emperor.
In the above background, whatever is happening in Karnataka, since 11-07-2017 in the name of implementing RERA is not correct and can be easily questioned in the Hon'ble High Court of Karnataka.
I earnestly request you to instruct all your subordinate IAS officers connected with activities, business, development and sales of Real Estate Units of a project to coordinate with the Housing Secretary and RERA Authority for proper implementation of RERA Act by removing the provisions of the nearly 23-25 State/Central Laws (Act/Rules/Regulations/ Circulars/ Internal Guidelines) which are inconsistent with the RERA Act provisions with respect to laws implemented by them in the Karnataka State. The Secretary to Government of Karnataka Housing Department and other departmental heads related to Real Estate development activities and RERA Authority shall coordinate with the concerned Ministry of Electricity Supply Company, Water supply and Drainage facility providing Boards, Pollution Board (both Central and State) so as to remove the difficulties involved in getting No objection Certificates, Commencement Certificates, Completion Certificates and Occupancy Certificate smoothly as per the provisions/definitions of the terms mentioned in RERA Act. The Secretary to Government of Karnataka Housing Department and the RERA Authority have so far failed to stop Registration of conveyance Deeds of first sale of Apartments/Plots/ Buildings of projects completed by the promoter but without (a) RERA Registration number and (b) Occupancy Certificate of the project. In almost all the States, the Inspector General of Registrations and Commissioner of Stamps (in short-IGRS)have already issued instructions to the Sub registrars in this regard. So far, the IGRS of Karnataka has not issued any public circular or Gazette Notification in this regard. This is nothing but allowing the Promoters/Developers to do their sales much against the RERA Provisions.
I attach the following documents to this email:
(1) Agenda Note on the Meeting Held at RERA Office on 29-06-2020 which contains the Minutes of the Meeting held on 12-12-2019.
(2) My letter dated 29-06-2020 giving detailed explanations on the erratic Statements of the ROCS in the meeting held on 12-12-2019.
(3) My letter dated 02-10-2019 addressed to the Chief Secretary of the Government Karnataka requesting to form a task force for removing various lacunae in implementing RERA in Karnataka.
(4) Details of 15 letters sent by me to various Heads of the Government Departments requesting to implement RERA properly.
(5) Comments on the deficiencies in the Agreement for Sale Gazette Notified on 12-06-2020.
In the above background, I request you sir to take required steps for implementing RERA in true letter and spirit. As the Developers Organisations at State Level and Central Level have wholeheartedly welcomed the implementation of RERA in true spirit, the lagging behind of the Government of Karnataka and RERA Authority to act proactively in the last 50 months amounts the harm created by the State on homebuyers to enjoy the benefits of the RERA Act and denial of fundamental rights of the lakhs of homebuyers in the Karnataka State.
Hoping for your concerted effort for implementing RERA in right spirit, so as to avoid legal course through writ petitions in the Hon’ble Karnataka High Court,
With Warm Regards,
Ajit N. Naik
Activist for proper implementation
of KOFA and RERA
Date: 01-07-2020
M-9845243544, 080-29741288
PS: This email replaces the email sent on 01-07-2020 at 23:03 hours as certain errors in the email.