Decision given by Gujarat Real Estate Appellate Tribunal, Gandhinagar in case of M/s Smanvay Solitaire V. Gujarat Real Estate Regulatory Authority
Following Principle emerged from the decision
Whether minor mistake such as not mentioning GUJ RERA website in the advertisement will trigger Penalty?
Yes, as per section 11(2) of The Real Estate (Regulation and Development) Act, 2016 advertisement or prospectus issued or published by the promoter shall mention prominently the website address of the Authority. If any promoter contravenes such Provision the under section 61 of The Real Estate (Regulation and Development) Act, 2016, the Promoter shall be liable to a penalty which may extend up to five per cent. of the estimated cost of the real estate project as determined by the Authority.
Is there any remedy available to the Promote in case of minor mistake such as not mentioning GUJ RERA website in the Advertisement?
As per Principle laid down by sGujarat Real Estate Appellate Tribunal, Gandhinagar in case of M/S Samnvay Solitaire V. Gujarat Real Estate Regulatory Authority – leniency while levying Penalty is required to be shown in the case when there is no ulterior motive of Promoter to Breach the Provisions of Guj RERA Act.
|Appeal||Samnvay Solitaire (the appellant) filed appeal under Section 44(1) of The Real Estate (Regulation and Development) Act, 2016|
|Facts of Case||The Appellant has published advertisement of his project in newspaper Gujarat Samachar on 23-12-2018 without obtaining RERA registration & without mentioning RERA website.|
|Contention of the Promoter||Appellant admitted the fact that advertisement was published in new paper was without RERA website. However, there was no intention to breach the Provisions of the RERA Act. Hence, if Tribunal comes to conclusion that penalty is necessary, in such circumstance penalty may be reduced and minimum penalty order may be passed for all the six projects.|
|Contention of the Department||The Appellant has published Advertisement in newspaper without obtaining RERA registration & without mentioning RERA Website. Hence it’s a breach of RERA Act. Therefore, the order of penalty is legal and cannot be set aside.|
|Principle Laid down by Appellate Tribunal||On perusal of impugned order & record, it clearly appears that the Appellant has published advertisement of his six projects in news paper without obtaining registration & website Form Guj. RERA. The Appellant has mentioned in advertisement that “Visit Project Offices for Further Details Booking shall start After RERA Approval ”. This shows that of all the six projects have been already opened. Therefore, intention of the appellant is to advertise his projects. Therefore, it clearly shows that the intention of the appellant is to breach provision of RERA Act. Hence, impugned order for penalty of RS. 75000/- legal & according to provision of law. It further appears that the order for penalty of RS. 75000/- is very reasonable considering facts & circumstances of the case. Therefore, the impugned order cannot be set aside.|
Relevant Sections & Definitions
Section 11(2) of The Real Estate (Regulation and Development) Act, 2016.
The advertisement or prospectus issued or published by the promoter shall mention prominently the website address of the Authority, wherein all details of the registered project have been entered and include the registration number obtained from the Authority and such other matters incidental thereto.
Section 2(b) of The Real Estate (Regulation and Development) Act, 2016.
“advertisement” means any document described or issued as advertisement through any medium and includes any notice, circular or other documents or publicity in any form, informing persons about a real estate project, or offering for sale of a plot, building or apartment or inviting persons to purchase in any manner such plot, building or apartment or to make advances or deposits for such purposes;
Section 43(5) of The Real Estate (Regulation and Development) Act, 2016.
(5) Any person aggrieved by any direction or decision or order made by the Authority or by an adjudicating officer under this Act may prefer an appeal before the Appellate Tribunal having jusrisdiction over the matter:
Provided that where a promoter files an appeal with the Appellate Tribunal, it shall not be entertained, without the promoter first having deposited with the Appellate Tribunal at least thirty per cent. of the penalty, or such higher percentage as may be determined by the Appellate Tribunal, or the total amount to be paid to the allottee including interest and compensation imposed on him, if any, or with both, as the case may be, before the said appeal is heard.
Explanation.—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.