ffiHARERA

ffi- eunuennM Complaint No. 2785 of 202L

BEFORE THE HARYANA REAL ESTATE REGUTATORY

AUTHORITY, GURUGRAM
Complaint no. 27BS ofZOZL
Complaint filed on 15.07.202L
First date of hearing 16.07.202L
Date of decision 04.o3.2022

L. Smt. Nidhi Singh

R/o: A-2L04,lreo VictoryValley, Sector 67,
Gurugram - t22t0L Haryana. Complainant
Versus

1. M/s /slreo Victory Valley Pvt Ltd.

2. Mr, Lalit Goyal
3. Mr. Anupam Nagalaia
4. Mr. Bhupesh Bansal
5. Mr. Rajender Kuma:
6. M/s KSS Prop
Address of R1
House, Karamp
- L10015.
M/s High Responsib]e B
Address: C4, 1st Flo'or;
1,10017 Respondents
8. NI/s Quick Real Estate Pvt. Ltd.
9. Mr. Punit Monga .::i' :,',"':l

10 Mr. Nitin Gupta

Address of R8 to R10: Flat 3021, Bhagwati, CGHS
Plot No. B, Sectof f 98, Dwarka, New Delhi- 110078.
t1 M/s Victory Valley{ondbminium Owneis ' Welfare
Association
Address: D3 / 002, lreo Victory Valley, Sector 67,
Gurugram, Haryana - 722L0L.
1,2 Indiabulls Housing Finance Limited
Address= M62, 63, First FIoor, Connaught Place,
New Delhi - 110001
CORAM:
Dr. K.K Khandelwal Chairman
Shri Viiay Kumar Goyal Member

Page 1 of76
ffiHARERA
ffieunuenAM Complaint No. 2785 of 202t

APPEARANCE:
Shri Bhupinder Pratap Singh Advocate for the complainant
Advocate
Advocate for the respondents
Shri M.K Dang along with Garvit
Gupta Advocates for respondent
no.1 to 7
Shri Ashish Thakral, Secretary of
the association for respondent no.
lL
d*"rrd 'a -,.!'.: :
ii:i:-' i
None for respondent no. 8, 9, 1q;1.* ii;.....',, :.."ii":i:
j;,,t:.
i:

and 12. '"tj";

i f. r{ ii,tt

1. The present complaint dated 1,5.07.201.' t has been filed by the

complainant/alldd#p n Fq?nirCRA
complainant/alldtt#p$n F
CRA qFa$F p*efpttoqr 31 of the Real Estate
{pa$f p,*dil'*J
(Regulation and D,9fl"elhlp$eng) Att, ?04,?,$iffiprt, the Act) read with
rule 2B of the Haryana Real Estate [Regulation and Development) Rules,
2077 (in short, the Rules) f f.'viplation on 3 for not registering
the project in questiorn as,per,pqp@qn1.ofitheAct; section 11,(4)[b) of
the Act by not obffiining the cbruplslipn'ce,-tificate from the competent
authorities till date; secti61-;11.{+Xgt l6f thq Act wherein it is inter alia
prescribed that thb pfomoter shall pay all the outgoings until the
promoter transfers the physical possession of the project to the allottee
or association of allottees ; section 11[4)(h) of the Act wherein inter-
alia prescribed that the promoter shall not mortgage or create a charge
on such apartment, plot or building, as the case maybe after he executes

an agreement for sale for any apartment, plot or building, as the case
may be and under section 74 of the Act for rectifying the structural

PageZ of76
ffiHARERA
#"eunuenArrrr Complaint No. 2785 of 2021.

defects or any other defect in workmanship, quality or provisions of

services or any other obligation of the promoter as per agreement for
sale and adhering to the sanctioned plans.

A. Proiect related details

2. The particulars of the project, the details of occupation certificate, the

license and other project related details have been detailed in the

following tabular form :

S. No Heads Information
1. Project name and locatfbi{.,,r.1;,
J "i l;lleo Victory Valley, Sector 67,
I i$uiPs,4am, Haryana
i

2. Project area 24.6L2 acres

3. Nature of the project [6ioup,,hri-ASing co I o ny
4. DTCP licenser no and validity i. 244 of 2007 dated 26.10.2007
status Valid/renewed upto 2 5.1,0,20|17
Licensee- KSS Properties Pvt.
Ltd, and High Responsible
Realtors Pvt. Ltd.

ii. 103 of 20LL dated 07 .1.2.201.1.

,,V+|id/p*enewed upto 0 6. L 2.20 L7
,[t iCen*- KSS Properties Pvt.
Ltu",,lll ..:')t.
rrfti

5. HREM ,lregistefdAl fi hbr = !f,rfgt l,efistdred

registered
6. Occupation certificate i. 28.09.2017
granted on [For BlockA, B, C, DL-ZA,D2-4A,
D3.BC, D4.BC, D5-4A, D6-2A,D7.
2A, DL0-108, D L 1- 1 28, DL2-10C,
DL3-6C, DL4-4C, D15-BC, D16-
10B, DL7-12B, D1B-10B, DL9-BC,
D20 -6C, D2 1-BC, D22-1.0C, D23 -

Page 3 of76
 HARERA
GtJRUGl?AM Complaint No. 2785 of 2021

12A, EWS Bloch Community

building 1,2 and 3l
ii. 2s.o7.20L6
[For Block DB, D9, D24,D25,D26,
D57 and EWSI
7. Building plan approval 29.11.2070

B. Environmental clearance 25.1r.20L0

9. Approval of firefighting 28.L0.2013

scheme s ie:]:

Facts of the complaint:

B.
' t
. i,i,

3. The complainant made the ffi ubmissions in the complaint:

That the complainant hbreih,

... is an owner in possession of

apartment bearing number A/2104 in the group housing society

namely 'lreo Victory
":l
Valley' situated in Sector 67, Gurgaon by
virtue of *61tered1 sale ,feed bearilS number 6434 dated

05.02.2021, re$lstergd 2t tho Badshahpur Tbhsil Gurgaon.

ii. That R1, n6, ,at$,. ,{
R7,,,t:! compagies
1#
are registered under the
Companies Act, 1956,and a,terin.ffitEr" of the project within the
meaning ot. Act holders of the license
,R:0 "HU,Y.iiF :|.],..n:.e
bearing not;tiiiji+'ot zno? apir ioq.or.-zorr granted by the
Department,,o'f-,To*n" nlan11nB, Haryana under the
-t fOuntV.
Haryana Development jnd Regutation of Urban Areas Act t975,
and Rl- is the developer of the project. All three respondents are
admittedly associate companies engaged in the business of real
estate development.
iii. That R2 and R3 are officers in-charge for running the affairs of the
companies R1, R6, R7 and responsible to the respective companies
for the conduct of their business and are directly and personally

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ffiHARERA
ffi" GuRUoRAM Complaint No. 2785 of 2021,

responsible for the myriad of offences committed by these

companies under the various provisions of the Act.

iv. That R4 and R5 are the present directors of R1 per the information
published on the web site of the Ministry of Corporate Affairs,
www.mca.ggv.in.
V. That RB is a shell company registered under the Companies Act
L956 formed solely for the purpose of circumventing the

conditions of the lice y demanding and collecting

monies in the name of ership fees from the allottees in
the project. The affa
are also share Yy pany. R10 is also a

senior managerial functionary in the promoter companies. llhat

R11 is the prornLoters' run RWA and its office bearers are

employees/associ:ltes of the promoter companies. That R12 is the

mortgagee company to whom the entire project has been
mortgaged by the promoters in complete violation of the
provisions of the Act.
vi. That the complainant took over possession of the apartmetrt r:n
05.02.2021. The complainant haS since been chasing t,he
respondents to affect the change of ownership in its records
without success. It is submitted that the complainant over the lzrst
few months has discovered/uncovered umpteen violations of the
Act, the Haryana lDevelopment & Regulation of Urban Areas Act,
1975 (hereinafterr "Development Act"), and the Haryana
Registration & Regulation of Societies Act, 20LZ [hereinaft,er,
"societies Act") and the Companies Act among others, being
committed by the respondents herein with impunity. Therse

Page 5 of76
HARERA
GURUGRAM Complaint No. 2785 of 2021.

violations have put the complainant and indeed the other allottees
at a severe disadvantage. The complainant seeks redress for the
grievances resulting from the violation of the Act before this
authority fully reserving her right to pursue other remedies before
other tribunals/courts/adjudicating authorities as the case may
be.

vii. That admittedly, even after 4 years of obtaining the last occupation
certificate on 28.09.20L7r, tfl.Q,'promoters have neither registered
:,

proj ect. This violates,.th8i ,9,,f,section 11(b) of the Act, and

also section 3. i

viii. I'hat the "Technical audit Report" submitted by facilities

rnanagement company, M/s Cushman & Wakefield commissioned
by the promoter controlled RWA, R11 itself shows that the cost of
prending works in the subject project is estimated at Rs. 32 crores.

fiurther, key findings from the report are reproduced below:

. Residents are collectively incurring a penalty of approx, Rs,
1,00,000/-- ppr m,gnth for failuqe,of thr.g promoters to install a
permanent electriCity connection at the subject project till date.
The savin$s for,,th$Irn$nth of january 202L alone had there been
a permanefltcgnnection in place,a,fQ e,$timated at Rs. 4,88,9 96 /-
D emand no-tite dated 0 5. 02- .202L'd,f ,RS.,5'9,0,3,37 5 / - lapp e d by
DHBVN for running the society on a temporary connection.
a 33 KV substation still not built.
a Installation of DG of 1050 KVA capacity pending.
o Fire NOC not in place.
a Access control systems either non-existent or not working.
o More than 500/o of the CCTV cameras dysfunctional and those do
not work and do not have the desired resolution to be effective
for the purpose they are meant.

Page 6 of76
ffi HARERA
ffi GUt?UGRAM
w*{ adil Complaint No. 2785 of 2021

o Lift fans and cameras are either non-operational or not

effective.
o Emergency exits and staircases for most low-rise and mid-rise
towers not completed even till date.
o Pending works in lift lobbies need to be completed.
o Substantive parts of the outer fagade of buildings need to be
plastered and painted.
o Connection of sewer to the municipal line needs to be done.
ix. That this authority vide its order dated 24.L1.2020 in complaint
bearing no. 3687 of 2020 \3.$.ldil..t.d the planning branch to file
' ]' :t:
a criminal complaint againqt$hegfOmoters for not paying any heed

:his autli,offi fiii iegistering the project, Reference

was also made to th'b shdWicause no.tice issued to the promoters
vide order dated 2,q11,i019 in complaint no. 582 6 of 2019.
That while the rngitgaging of the project itself is illegal and cannot
t, :_

be given effdct,[{in view,of mandatB of $ection 11(4)(hJ of the

the
Act, the resflon"dent promoters is not.registering the project and
.;1,;'
not depositin[],110/N,:KS from the allottees in
if"#"!$g liaea
the designated irrro*iint'1Ad;.ffi themselves liable for
]ehd6red
prosecution under section 604n"-d"61 of the Act.
xi. That the said deed was e-xe--cuted on 28.06,20L6 by R1, R6, and R7
in favor of R12 to secure a loan facility of Rs. 200 crores, just a
...
month befoie obtaining the fiist occupation certificate for the
project on 25.07.2016. It is of importance to note that R3 is the
authorized signatory on behalf of all 3 promoters in the
hypothecation deed. It is of importance to note that the hon'ble
Supreme Court in Bikram Chatterjee & Others v Union of India
& Others (2079) 19 SCC 767 has held that no valid charge is
created on the project property if the mortgagor has unpaid dues

PageT of76
ffiHARERA
ffiGURUGRAM complaint No. 2785 of 2027

related to the project. It further observes that it is incumbent upon

the mortgagee to ensure that the monies lent is used for the
purpose of construction and completion of the project and not
diverted elsewhere. In the present case the respondent promoters
and R12 have acted in concert in complete disregard of their
obligations to the detriment of the interest of the allottees and the
project as a whole.
xii. That the respondent qrom$$tiipg.q,egistered the statutory deed of
declaration on 9.02.20i,ii,, it a." glance at this would show that as
'i,
on 9.02.2078 ,h.l.g-,,,*.T$ as many as 200 unsold
:i-
iffilttedlr
apartments in th6. Pildieq,t$aq.$g,,nfojbct been registered even at

today. :

xiii. That it is clear

rr from the technical audit report
ta
rep that works worth Rs.

32,00,00,000/- are pending anc th

rg and ters have clearly not
discharged their obfifiatibns to p-iy ttr. outgoings towards several
items, inclu d,ingrCAIU tow, a spsold, inventory, co mmis si oning of
a permanenrii,..f&eiclty,,Wi'Onnuition *nd th. resulting penalties
therefro m, i nilaUation,o,f 4n ad,$itionaf. p G, Compl eti on of pending
,o b
, l

civil works, and so on.

xiv. That the promoters are admittedly running a mammoth
outstanding of approximately Rs. 20 crores towards unpaid cAM
for unsold inventory and other dues. This outstanding continues to
increase every year and R11 has made no attempt whatsoever to
recover this money from the promoters. For the year ending 31.t
March 2079 this outstanding was Rs. 9,79,04,694/- which for the

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ffiHARERA
ffi" eunueRAM complaint No. 2785 of 2021'

year ending 3L't March2020 increased to Rs.15,51,,7 4,557 /- and as

on date is estimated to be in the region of Rs, 20,00,00,000/- as be

audited financial statements of R11 for the year ending 31.03.2019

and 3 t.03.2020.
xv. That R11 continues to defray the cost of repairs and defects in the
project from the CAM collected from the allottees. For example, fclr
the year ending 31.03.2019 repair and maintenance alone
accounted for Rs. 80,43 ,OL4f -,For the year ending 31,.0:\.2020 ttre

it. R11 is in I ; Htfre allottees common

frop
area mainte arges for an incomplete Pro

is in the teeth of the lar {+)tg) and 14(3), Non-

compliance warrants penal action against the promoters under
section 61 of the Act and disgorgement of monies illegally collectr:d
by the respondent promoters in the name of CAM till date,

xvi. That the governing body of the present R\VA, Rl L is an illegal borly

comprising of' employees/associates of the promoters. tlhe

governing bod,7 does not even conform to the mandate of its r:vvn
byelaws. It is pertinent to note that the governing body of R11 has
refused memberstrip to the complainant in spite of her meeting the
criteria of membership. It is submitted that the constittrtion of the
governing body ol'the RWA is the subject matter of challenge in a
civil suit pentling adjudication before the learned tlivil fudge

Page 9 of76
ffiHARERA
#,-eunllGRAM Complaint No. 2785 of 20Zl

Gurgaon and a complaint is also pending adjudication before the

District Registrar of Firms and Societies Gurgaon.
xvii. That R11 has collected @Rs.100 per square feet from every
resident owner towards replacement fund maintenance security
[RFMS), which corpus for the year ending 31.03.2020 admittedly
stood at Rs. 18,32,45,758/- and as on date would be in the region
of Rs. 20,00,00,000/-. R11 has failed to account for this money till
date. The complainant request dated 30.05.202 1 to
provide an account of nd among other things.
xviii. That the governinp,,l$ffiffm ,fi,1o* making an atrempt to
handover the .fttru'of.fte'ats$ociatiOn, to the resident owners
without accounting for the,RFM$ depesits and other liabilities and
without furnishing acco.,unts. A complaint on behalf of resident
owners tras:.
flnep
fi,];d flbef,ore thp ct Registrar, Firms & l
societies, Guf$orr to keep qhe,glectl,on process in abeyance until
li{,, .'1, "\,,
$i X,X r. :- .ii,: ,
rendering of- achouhtp ',
add, af,,,sgftainqept of liabilities incurred by
R11 on behalf of resident*owners.
tr4r:ala;:::;;::.:t
i !a,:::aa:a,a:aaa/
ihe complaint has not been
taken up yet in the DR{s office aslrth.g np,,gv DR has not assumed
charge. R11 is stro*ing unau. haste to offload the liabilities on to

xix. That the promoters in their attempt to circumvent the settled legal
position and in sheer disregard of the law have committed a mass
fraud on the allottees and also the Department of Town & Country
Planning by creating a shell company, R8 solely for the purpose of
demanding and collecting membership fee from the allottees,
which sum when put together is roughly 4 times the cost of
construction and land cost for the community buildings. While the

Page 10 of76
HARTR&
GUt?UOr?AM Complaint No. 2785 of 2027

complainanthas paid a sum of Rs.3,23,279 /- towards membership

fees [which was included in the total consideration paid by the
complainant), other allottees have paid sums up to Rs. 7,00,000/-
for the same. It is worth noting that the affairs of R8 are run by the
R9 and Rl-0 who are employees/associates of the promoters. They

are also shareholders of 500/o each in RB. It is also pertinent to note

that RB has a share capital of only Rs. L,00,000/- and had no
business income or assetp-pf its"own until it started collecting the
* ..1 t,-**{,:,.
membership fee from,\$., . Part of the membership fee, Rs.
10,50,00,000/- *rt-.,+"ffi. , ffto the promoters purportedly as

the acquisition price"oq,id,rp,rqqgr*;niilqings by RB. The rest has

been siphonqd*-eiff by thb'Cespondbnts Rl,,;:b nt! rhe siphoning off
and misappqbpiigtion is appare"itt.on ttie'fdce of the record as none
of the respondints herein have been able to account for the total
corpus of membeiship fee colleoted despite being expressly put to
notice of the saln.e",Be that 3s'i1Hry, any arrangement between the
promoters and R8-nh}iat* , tr non-est, illegal, void-ab-initio
and inoperabfie psrlT: fu:"Trlalffit indeed other allottees.
1t$
It is evident ffom the statem.#ti*tnEttmAnEy is first collected from
the allott."tli'fi"the
'1 -' namb of mqmbe.rship
i
iees and the corpus is then
o*"..' '**J 't ".' ' - ,'

used to buy real estate, in this case the community centres/club.

The cost of acquisition of the Ireo Victory Valley club is admittedly
Rs. 10,50,00,000/-, whereas the monies collected towards
membership fee is estimated to be in the vicinity of around Rs,

50,00,00,000/-. It is worth noting that the amount of Rs.

10,50,00,000/- continues to be shown as capital work in progress
even though the occupation certificate for all the community

Page 11 of76
ffiHARERA
#*eunuennM complaint No. 2785 of 2021,

buildings was received as far back as 28.09.2017. This is a fraud

perpetrated by the respondents R1 to R10. RB was used as a vehicle
to siphon off money collected from the allottees under the garb of
membership fees. The complainant reserves the right to initiate
prosecution against the respondents in the appropriate fora
including the National Company Law Tribunal for offences
committed under the Companies Act, Indian Penal Code, and the
DevelopmentAct. Give it is imperative that community
buildings are convey ation of resident owners in
accordance with the mandate'o-f section 11t4)t0 of the Act and the
monies collected over; and,hb:ove,,the cost
:
of acquisition of
community buildings is"rcfUnddd to the:said association forthwith
:

jrointly and severally by the respondents RL.R10.

I'hat the complainant discovered to her shock and surprise that

two parking spaces allocated for the apartment of the
complainant ,r',rldi vinta,,liye o[, t:.e-sanctioned plan, which
provides for 35 sqm$aflHn"$oSpaCe in the basement. Under the
Haryana r-[n((,l 8,,C,od oyld be 1.5 equivalent car
space [ECSJ#,i.&, #B sQr rg 3Z,sqm for basement. Be

that as i.{:t&_f', idd f;..#*ponqq6 hfu*e6 not even provided

'a,+,.,,ti :: : ,' :,, l fl \. f t "* fr

sanctioned 35 sqm of space in thatthe two parking spaces are one

behind the other in a constricted space between foundation
pillars such one car cannot be removed unless the other is

removed first. Parking the car in the constricted space getting in

and out of the car is a cumbersome experience every time.
C. Relief sought by the complainant

4. The complainant is seeking the following relief:

Page 12 of76
HARERA
GURUGl?AM Complaint No. 2785 of 2021,

To file a criminal complaint against the respondents (RL to R7)

with the competent magistrate for their failure to register the

project as per the provisions of the Act despite repeated orders of

this authority.

ii. To order prohibition of sale or creation of third party interest in

any shape or form in any property of the subject project including

apartments, shops, r, school land or any other

spaces, constructed or by the respondents (R 1 to R12 )

or anyone acti such time the obligations in

terms of th t of monies due are

discharged satisfaction of this

authority, ority may deem fit

in the ci

To order the jointly and severally to

deposit the cost with this authoritY, with

,l :l:: .. 'r4...: .::,,

to dompletion of works to the

,:i.: i= i:m ::::::

withdrawal; biiing subleit

satisfaction of this authoritY.

iv. To order the respondents (R1 to R7J, to complete the pending

woks in a time bound manner and obtain completion certificate

from the competent authorities or in the alternative exercise

powers under section B of the Act to take over the project and

order completion of works by a competent body or authority.

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ffiHARERA
ffieunubnnrrl Complaint No. 2785 of 2021,

v. To order the respondents [R1 to R7), jointty and severally, to

deposit their share of common area maintenance charges and

other dues with R1t, with a direction to keep the said monies
deposited with this authority in an interest-bearing deposit for

and on behalf of R11, until such time R11 is handed over to a duly

elected body of resident owners.

vi. To order the respo"$guTtffi R10), jointly and severally to

refund the entire corp.uffi]tffi
^, I
:.- i--:r- membership
v^rrlJ fees
rvvr collected
lvrrUULLLt by
LrJ

them to R11, with a ai.eciion io k.up the monies deposited with

,'tl ..t;t:,',
' r .,:1,,. l :

this authority
+L:^ ^,.!L^--:L-:--- | , . l
in an inlerest-bearing deposit for and on behalf of
Lr l:
..it:..: :)

R11, until such time R11 is handed over to a duly elected body of

vii. with this

accrued
thereon in an interest-bearing deposit for and on behalf of RL1,

until such time R11 is over t,o a duly elected body of

resident owners.
.

viii.
-..4b

To order the respondents fnf tb niOl to settte alt their pending

dues towards their vendors and pay all dues for and on
behalf of
R11, until such time R11 is handed over to a duly elected body of
resident owners.

ix. To order the respondents (R1 to R7), jointly and severally,

to
refund to R11 the entire monies paid by R11 to DHBVN in
the

Page L4 of76
ffiHARERA
ffi-GuRUGRRt'l Complaint No. 2785 of 2021

form of penalties for its failure to install a permanent electricity

connection for the subject project and also excess monies paid by

RlL on account of higher billing rate for a temporary connection,

with a direction to keep the monies deposited with this authority

in an interest bearing deposit for and on behalf of R11, until such

time R11 is handed over to a duly elected body of resident

owners. t*#,,,,r,.
" ,.:lH *1,;,f1"". :

To order the respondilnffiu;(Bfuto nZ), jointly and severally, to

"{ -";i :5#"ffi
refund to R11,,,th'[- E4tigei ,monies spent on repairs and

Rl-1, until such tin handed over to a dulY

xi. To order the respondents [R1 to R7), jointly and severalll', 1s

refund to RL1 the entire monies spent on purchasing rvater from

W,dih,r*"tioo io f<eep the monies deposited

an externrf su,l[.g;

with this authori-Ql. i!-ap,interest.bealing deposit for and on

behalf of R11; untii suth time RlL iS handed over to a duly elected

body of resident owners.

xii. To order the respondents [R1 to R7) to refund to R].1 at least 50o/o

of the CAM charges collected by R11 till date from the resident
owners, with a direction to keep the monies deposited with the

Authority in an interest-bearing deposit for and on behalf of R11,

Page 15 of76
ffiHARERA
ffieunilGRAM Complaint No. 2785 of 2021

until such time R11 is handed over to a duly elected body of

resident owners.

xiii. To order the respondents (R1 to R10) to convey/formally

handover all the common areas including the three community

buildings to R11.

xiv. To order the respondents [R1 to R7) to allocate at least 35 sqm of

usable parking space ependent car parking as per the

sanctioned) plan.
Pto.tt. ,,il l*',rL

xv. To penalize the respondents (RL to R17') for offences committed

by them under section 59, 60, and 6,1 of the Act and earmark a

percentage of the penalties as deemed fit by this authority for the

D. 'filed by the respond"nt nori 1-to 7

.::
5.
I
The respondent
.
no.
. t st t .
HA$ry9$1n'..;r6mplaint *4--.
on the following

i. That the compr"ir, is neiffi iln;dfi*uleimo.

tenable and is liabte
i
to be outrightly-,, dismissed as the apartmgnt buyer's agreement in
: . ) :. i I

question was executed prior to theinactment of the Act and the

provisions of the said Act cannot be enforced retrospectively.

ii. That the answering respondents have already filed an application

for recalling of the order dated 20.07.2021 passed by this hon'ble
authority in view of the directions passed by the Hon'ble punjab
and Haryana High Court before this hon'ble authority and the same

Page 16 of76
ffiHARERA
ffi.eunucRnll Complaint No. 2785 of 2021,

may kindly be read as part and parcel of this reply in order to avoid

unnecessary repetition and for the sake of brevity.

iii. That averments of the complainant are regarding non-registration

of the project and alleged structural deficiencies. It is a not
disputed fact that respondents no.1, 6 and 7 have already
completed the project on time and offered the possession and has
even executed the conveyance deed for the unit in question. There
are no structural defectdiA,$d Abflciencies in the project in question
- i1-iti - I

and the same is one of t\ffi$SHil#i..tr in Gurugram. As per the Act

and the rules, the,,g,u$.'i'fi$;f attegea structural deficiencies can

.',). ;.,"
only be adjudic.Aled bytheh6hlBiediudicating officer and the only
t^ ., I a -F
"' ;]ffi* "#r
.r

claim th. ."#Sliflrntffiffi. hffillqas for compensation.

# *h;'
However, ndtitu. the 'presentttimplaint liai been filed before the
: i,,
hon'ble adjudicating officer nor the clhim is for compensation.
: , :;
iv. Thatthis hon'bl*$1nority dbes;hothaFlhe jurisdiction to try and
decide the present false afi'd'frivolots complaint. The project in
question is exempted frdmregisffation under the Act and the rules,
20t7 as it aolrg;rot qomg pn,ILr tn.;.opE and ambit of 'ongoing
i,rii. Y:,
,#' ,,,i$i ::_.,
ii " rr.i

project' as
{,pfi4eUd
ip,61le
iT(o) Pf
j|. FJaryana Rules, 201.7 . tt is

submitted thatfrie hpptication for Sfraht of occupation certificate

for the tower in which the unit of the complainant is located was
made before the publication of the rules vide application dated
09.02.2017 in accordance with sub code 4.10 of the Haryana
Building Code, 20L7. Thus, according to the provisions of the said
Act and rules, the project is not required to be registered under the
said Act and rules. The project is not covered within the ambit of

Page L7 of76
ffiHARERA
ffieunuGRAM Complaint No. 2785 of 2021

the provisions of the Act. Furthermore, it has been held by various

authorities that if the building where the unit is located is not a part
of the project i.e., registered, then the matter would be dismissed
for want of jurisdiction.

v. That the complaint is not maintainable for the reason that the
agreement contains an arbitration clause which refers to the
dispute resolution mechanism to be adopted by the parties in the
event of any dispute i. the buyer's agreement.

vi. That the complainants roached this hon'ble authority

has been filed by them maliciously with an ulterior motive and it is

rrothing but a sheer abUse o
r f the p roc€)ss of law. The true and

associate companies have developed and delivered several

prestigious projects such as 'Grand Arch', 'Skyon', 'Uptown',
'The Corridors-Phase I', and in most of these projects large
number of families have already shifted after having taken
possession and even resident welfare associations have been
formed which are taking care of day to day needs of the

Page lB of76
ffiHARERA
ffio[RUcRAM Complaint No, 2785 of 2021

allottees of the respective projects. Respondents no.2 to 5 are

not associated with the day-to-day affairs of respondents
no.1,6 and 7 and have been wrongly arrayed as respondents.
b. That the original allottee of the unit i.e. Mr. Ayush Bansal after

checking the veracity of the subject project had applied for

allotment of the apartment vide his booking application form

and accordingly a t buyer's agreement was executed

between the origi respondents no.1,6 and 7. It

is pertinent to t when the original allottee

no.1, 6 and 7,the Act of

ns of the same cannot

nal allottee agreed

tions of the booking

applicati ,yer's agreement.

That respo pleted the construction of

the tower in'whi"qh tl-re,Uqit allotted to;the original allottee and

!ili,,*,;r,-, ,l,
r.:::1
;:-
.;; fuq- ,r.', it
i,jir ;"",'.$.lttl i7fli-It"tu .,:,,_"
l\qi,

now tne=lohptainant ib located. ttre respondents no.1, 6 and

7 was grantetl the occupation certificate on 28.9,201'7 and

accordingly, it handed over the possession to the original

allottee vide letter dated 26.04,20L9,

That the original allottee was put in possession of his unit and

being fully satisfied with the same had executed conveyance

deed bearing vasika no. 2111 dated 24.5.2019. It has now

Page 19 ot76
ffiHARERA
ffieunttGRAM complaint No. 2785 of 2021

come to the knowledge of the answering respondents that the

original allottee had sold the property after execution of the

conveyance deed to the complainant as is evident from the

documents attached by the complainant alongwith the

present complaint. It is submitted that the complainant had at

the time of purchase of the said unit from the original allottee

conducted her o\ryn investigation

v about the terms and
,'. rti
conditions of the
i

and of the project. The

complainant,,,,.--i are e terms of the conveyance

, -#;1
deed, the complainant had taken

after beinH

would not raise any (

same would stand waived.

e. That the complainant was aware that as per the terms of the

would be claimed for

her against pngvqlinerrespgqam,rq+ The relevant recital
*ryHSq$,qL
1
f l;Ti,{,,/*q$"W$
'f is as f&t.ir,ffi -

"The Vendee has been put in possession of the said

Apartment and-being fully satisfied with the same, has no
claim of any nature whatsoever on the Vendor herein,.,,'

That the complainant has taken the possession of the

apartment in question after having inspected and being fully

satisfied about all items work, quality of workmanship,

Page20 of76
ffiHARERA
ffi" GIJRLTGRAM complaint No. 2785 of 20ZL

materials, specifications, fittings and fixtures used and had

assured the answering respondents that they would not raise

any objection. Also, as per the conveyance deed the

complainant cannot claim any compensation or withhold the

payment of any charges on the ground that the infrastructure

required for the project in question was not complete. The

clause no.3,LZ re relevant to this regard needs

to be considered.
o
b' That even of the Act of 201.6, the

answeri nsible in any manner

with the complainant and

the p issed on this short

ground

h. That the who after taking

the possession o to harass and pressurize the

tr

to submit to her unreasonable

.

answerin6; respondents

E. Reply filed by respondent no.11

6. The respondent no.11 had contended the complaint on following

grounds:

Page 2l of 7 6
ffiHARERA
ffiGURUGRAM Complaint No. 2785 of 2021,

That a representative body of resident owners was elected for the

very first time on 02.02.2022 after intervention of and on

directions passed in terms of the order dated 6.L0.2021 by the

Registrar of Societies, Gurgaon in the matter of Nitin lagga & Ors.

v Victory Valley Condominium Owners Welfare Association.

b. That the certificate date d 04.02.2022 was issued by the Registrar

of Societies, Gurgaon to the,,1ei^/lyrslected governing body.

..,,* I:,-
C. That the instant compffiiffipresentative of the issues and
,L Bq.{*.:i " ,:
-
hardships of all thq[$;id$ntsaof the condominium and R1]. is in

agreemert -,1ffi;U .6omplainant.

d. That the de $overrrffi'gt6.q bl *i$ffig&"t to handover charge
to th e n ewt/qffi ip, offi ,qff o rd i n gry c rave s Ie ave
I "r" "$in B$"
Tfl$
of this authoiffitbfplticei$u$ ofhenrpielagri documents on record
r
'a - :$ I :

in due course. "" '""-*

; r,
That after the appointmdnt"'' of administrator by the District

includingthe Haryana Real Estate Regulation and DevelopmentAct

2016, the Haryana Development & Regulation of Urban Areas Act

7975, and the Haryana Registration & Regulation of Societies Act

2072.

Page22 of76
ffiHARTRA
ffi.GURUGRnrrl Complaint No. 2785 of 2021

That the respondents Rl, R6 and R7 continue to sell the project

property in complete defiance and violation of the order dated

20.07.2021 passed in the present complaint. The complainant filed

applications dated L3.08.2021 and 7.02.2022. The new governing

body is in the process of ascertaining the current dues due to it

from the promoters on account of CAM against unsold inventory,

RFMS, club membersh collected and misapProPriated

by the promoters and

As of Year RFIITS Cash & Fund Dues from lreo

a...

Ending collection (Rs.) Balance Es.) (Rs.)

'4tA8/49/:
31..03.2017 L,L7,78,14U-:

31.03.2018 Lfi,05,70,77.i11- L0,22,52,134t/- 3,54,00,671,f -

9,19,04,694f -
31.03.2019 17,20,ft85Q5/- E,tl'tl,V.i,Z'06,/-

31,.03.2020 1$32,45,758/- L,L6,37,332/i L5,5L,74,557 /-

31.03.202t 79,44,73,2031- 26,83,059 /- 15,38,16,800/-

That the total area moters is approximatelY 24lakh

square feet ancl the promoters, therefore, need to account for Fl's.

*'rsqme tp. the RL 1 association'

total and resto4e' the.
24 crores in-i----
. -. r '
h. That the club e beritrip receipts of some other residents who
paid at the rate of Rs. 7,08,000/-, the respondents R1-R10 have

played a multi-crore fraud on the residents and need to be brought

to justice for the same.

Page23 of76
ffiHARERA
ffiGURUoRAM Complaint No. 2785 of 202t

F. furisdiction of the authority

7. The authority observed that it has territorial as well as subject matter

jurisdiction to adjudicate the present complaint for the reasons given

below.

E. I Territorial iurisdiction
B. As per notification no. 7/92/2017-LTCP dated 1,4.L2.2017 issued bythe

Town and Country Planni t, Haryana the jurisdiction of

the Real Estate Regulato ty, Gurugram shall be entire

Gurugram district for all pulpoSei w ces situated in Gurugram. In

the present case, the project in question is situated within the planning

area of Gurugram district, therefore this authority has complete

9. the promoter shall be

responsible to the allottue 6s"$ei ent for sale. Section 11( )[a)

and section 34(f) of the Act of Zp1.6 are as hereunder:

77, Functions and Duties of Promoter, -

(4) The promoter sholl-
(a) b'b fespon'sible for alt obligations,
responsibilities and functions under the
provisions of this Act or the rules and
regulations made thereunder or to the
allottees as per the agreement for sale, or
to the association of allottees, as the case may
be, till the conveyance of all the apartments,
plots or buildings, as the case may be, to the
allottees, or the common oreas to the
association of allottees or the competent
authority, as the case may be;
(emphasis supplied)

Page 24 of 7 6
 HAl?ERA
GURUGI?AM Complaint No. 2785 of 2021'

34. Functions of the AuthoritY:

The functions ofthe authority shall include'
A of the Act provides to ensure compliance of the
obligations cast upon the promoters, the allottees and
the real estate agents under this Act and the rules and
r e g ulatio ns ma d e ther eun de r
10. So, in view of the provisions of the Act quoted above, the authority has

complete jurisdiction to decide the complaint regarding non-

compliance of obligations by thpp-romoter as per provisions of section

1.1(4)(a) of the Act )eaving iiiOa,&pensation which is to be deciderd

' .1;..r\i.,rr., ,,X:'.'!:
ri{. N
"l;l
suedby lhe
by the adjudicating officer if Siur$ued'by complainant at a later stage
the comp
311$ii ,,r't%.-
G. Fi n dings on th e rel ief rso UghU byrthe-.gomp lainant
nplainant
,,,
j ,,. "

i. To file a
-- crimlhal'com$laihtirhgainst
-- ----:----- - - -r - -_ I the respondents (R1 to
R7) with the competent magistrate fortheir failure to registr:r
the proiect$as,fier the'pronisf'bns of ]tre'Act despite repeated

1,1,. The counsel for tfrg' bmpla;inant presbe forpenalizing the respondents

[R1 to R7) for offenCe$ Committgd Uytfrem under section 59,60,and 61

of the Act and earmark a perC. t gft,-of'the penalties as deemed fit by

this authority forghe+.bepefit

* of,the subiect proiict.
Tg ; G I fi I *''*.
L2, The complainant poqnpe] ha*s* allege d that the#promoter has not got the
;*,.1 *j"dr $1 :, r.
project registered"in spit-e of ifr. fact that the diidctions were issued by

this authority. In pursuance of the directions of this authority, the

officers of the engineering branch of this authority visited the project

site and it was transpired that there were two different occupation

certificates granted by the Director, Town and Country Planning,

Haryana, Chandigarh in respect of the towers mentioned therein vide

Page 25 of 7 6
ffiHARERA
ffieunuenAM Ccrmplaint No. 2785 of 2021

memo no. ZP-358ISD(BS) /20L6/74990 dated 25.07.2016 and memo

no, ZP-3 5 B-Vol.-ll SD [BS)/2 0L7 / 2453 2 dated 28.09.201 7 respectively.

It is pertinent to note that the first occupation certificate was granted
on 25.07.2076 i.e., before coming into force of the Act of 2016 and
second occupation certificate was granted onr 28.09 .2017. The Act of

201,6 came into force in entirely on 1st May, 20L7.lt may be presumed
that the application for granot,,o.[ p-ation certificate dated 28.09.2017

would have been submi e competent authority before

28.07.2077 i.e., comingjn{o-l rui& of- ther Haryana Real Estate

(Regulation and Development) Rulei,, 2At7 and a window of three

months was given for applying reg;istration in such form as

for reg;istrat
prescribed by the Haryana Rules of 201,7.

13, The counsel for the respondent no. 1 to 7 has; argued that the project
does not fall within the ambit of definition of' on-going projects as

defined under rule 2(oJ of the Hhryana Rules crf 2017.

t4,

exempted from registration as per rule 2(o)[]ii) of the Haryana Rules,

2077 for which part completion/completion, occupation certificate or

part thereof has been granted on or before publication of these rules.

These rules were published on 28.07.2017 vrhereas part occupation

certificate for part of the subject project was granted on 28.09 .Z0lZ.

Page26 of76
ffiHARERA
fficrlRuoRnt'l Complaint No. 2785 of 202L

Accordingly, the pam of the project for which occupation certificate was

granted on 25.07 .20L6 is not on-going project as per the above quoted

provisions, accordingly not registerable.

15. Naturally, keeping in view the abovementioned dates and provisions of

the rule 2(o) of the Htaryana Rules of 20L7 ,it becomes clear that the part

for which occupation certificate was granted on 28.09.2017 subsequent

to the coming into fbrce of Rules of 20!7 i.e.,28.07.2017

was an on-going project and ted from the registration,

16. However, it is a matter of fact that within two months of coming into
i,
force of the Haryana Rules of 20!7, the part OC for the subject project

was granted by the cbmpetent authority. But the project is still not

complete and the ilevelopment works and other amenities have not

thi
Considering the abOvb facts;; certainly, ftie'iiegistration would have

given a clear picture of the sub ject as to what develoPment

and other infrastrtn:rq,,l.ll"qt1ir3rne1ts"were ta;hrn8 in the said project

as the occupation i3'in ibspect of buildings and Completion is in respect

of project. It needs to be considered that the portion of the buildings

which have been granted occupation certificate by the competent

authority only aftelr six basic amenities i.e., road, water, Sewerage,

electricity, storm urater and horticulture are certified to be complete.

There may be various amenities, community facilities, commercial

Page27 of76
ffiHARERA
ffieunuenArrir Ccrmplaint No. 2785 of 2021

facilities, parks, other infrastructural requiremrents, etc. to be provided

as per layout plan are not considered whjile granting occupation

certificate for towers but these are essentially required to be completed

before completion certificate is granted.

L7. It is pertinent to mention over here that the p,urpose of registration of

on-going project is to take stock of the situation as to what part of the

project has been completed and wh rt of th,e project is still left to be

,1. :,
completed. This helps allottee row as by vrhat time facilities as per

will be completed by the

promoter.

18.

Haryana Rules, 2017 the occupation certificate was obtained in respect

of the part of the subject project and ther responsibility to give

possession to the allottees within two months of grant of occupation

certificate is obvious so that the allottees are not in suspense as to by

what time the possession of their unit would be given. Keeping in view

Page28 of76
ffiHARERA
ffi.GuRUGRRt'lt Complaint No. 2785 of 202I

the fact that in the subject project, all roads have been laid, sewer lines

and storm water drerins have been provided, water supply system is in

place, streetlights are also in place, the infrastructure of the project has

been laid which was concurred by both the parties and also the

secretary of the association, which is respondent no. 1L. But still many

things remains to ber provided requiring substantial expenditure. (Page

1,38-1,4L of the complaint

19. The authority is of the vi though, the matter regarding

interpretation of rule 2 20t7 is pending before the

Hon'ble Punjab an ng validity of taking out

of the projects in exemptions provided

in rule 2(o) of t of registration of

projects coming (o) of Haryana Rules,

201.7 have been for the part of the project

as has been explained a in the ambit of registration

under the Act and even after allowing exemptions in the definition of

on-going projects, Accordingly, that part of the project for which

occupation certificarte was received after publication of the said rul:s,

should have been registered. Further, in this case the registration has

also become essential as the detailed information is required by this

authority for disposal of many complaints which are received in this

authority w.r.t the subject project. In this case substantial amount is yet

to be spent for the ,completion of the project in question so in case, the

Page29 of76
ffiHARERA
ffieunucRAM Complaint No. 2785 of 2027

promoter fails to complete the infrastructur:rl work then either the

competent authority or association of allottees; or in any other manner

as provided under section B of the Act action has to be taken to carry

out the remaining development works which require resources. These

resources would have been available in case the project is registered

and 700/o amount is deposited in the separate RERA account which

could only be used for the land Coit and construction cost. Due to non-

registration of registerable part of the project no such account was

20.

21.. Regarding launching of criminal proceedings under section 59[2) the

counsel for the respondent submitted that it was never the intention of

the respondent promoter to violate directions r)f the authority issued in

this regard but because of C0VID-19 situation the promoter was not
able to make an application as large number of documents and
voluminous information is to be supplieil to the authority for
registration of the project. The counsel for the respondent further
assured that within one month the application for registration of that

Page 30 of76
ffiHARERA
ffi- GURUGRAM Complaint No. 2785 of 2021,

part of the projectwhich is registrable as per present the Haryana Rules,

2077 shall be made. In case of further violation, the authority may take

serious view. The emphasis of the authority in the initial years of

implementation of the Act has been focused on compliance of

registration requirements. Accordingly, the authority directed that one

more opportunity be given to the promoter to make application for

registration of that part of the project which is registrable as per

present the Haryanzr Rules, 20tZ [wtrich have not been declared ultra-

Hlon'ble Punjab and Haryana High Court and matter

virus so far by the Hton'ble

is pending thereinJ.rwith[n ogg$onth; othefwise the authorised officer

of the authority iS,direited to file a complaint before the magistrate of

competent jurisdicfion for taking cognizance under section 59(2) of the

Act as despite the repeated directions by the authority to register the

subject project, the respondent promoters have failed to comply with

the said directions which is a violation of section 3 of the Act and

punishable under :;ection 5g(T) of the Act ibid. Shri Sumeet Naitn,

Engineer Executlr:Xf to file a criminal

WFH,$flHffi ffi,$flPf,ed
complaint on b.jkffi M L,frrq,ftff.i,ft *h- HiJ. *,. services or an

advocate/public prosecutor, if required, in case application for

registration is not made within one month. The respondent promoter is

also directed to submit record of all allottees in the performa of the DPI

within one month.

Page 31 of76
ffiHARERA
#*eunllcRAM Complaint No. 2785 of 2027

22. Furthermore, an affidavit shall be submitted by the respondent no. 3

who is the COO of the promoter's company and responsible for running

day to day affairs of the company or in case, respondent no. 3 is not the

COO then any authorized representative /key'managerial functionary

duly authorized by the Board in its meeting to submit the requisite

information required for registration.

qgffi$te
,,,qfui€

23. As the promoter has failed the project as no completion

certificate has been issue dffir,ro faited to get the project
-ffi$ffi
registered; in that eventuffiitnfil[ffifr+qf the promoter in which the
i l, *,.'; ; l,-*),',*l , u,|,a*.
,il;q''
sales consideration bf1 lre'5dy s"old unit is being received is freezed till
,"",;(l:. I .
(ll:ll::li';r,;',Jlil
) 'qtL .k ."+
further orders offfi'$uthorl$ A'rid p'tdmotbrli testrained to withdraw
*;;;" .$
any amo unt fro$ :,ffiQ saiQ' accouht.,,rts
'*1m''l-
l pffi f..t is registrabl e and
=Etr-1s
I
three accounts need.to'be openQd, 0"ti
k..f.5...:.=i $$ {$ 5 €
I can rcnly be used struction and land
cost. Here in this .rr. ,r.ti idt Ir,liis not been opened. The authoriry

has left with no other optiCIni Uut to,,foi.rdllth. above account till
, r ,a::: I ,:. l'

information is made available to this authority.

ii. To order prohibition of sale or creation of third party interest

in any shape or form in any property of the subiect proiect
including apartments, shops, community buildings, school
Iand or any other spaces, constructed or otherwise, by the
respondents (R1 to R12) or anyone acting on their behalf until
such time the obligations in terms of ttris complaint including
payment of monies due are dischargedl by the respondents to
the satisfaction of this authority, or until such other time as
the authority may deem fit in the circutmstances.

Page 32 of 7 6
ffiHARERA
#*eunugRnrrl Complaint No. 2785 of 2021.

24. The authority vide its orders dated 20.07.2021, while exercising its
power under section 36 of the Act had restrained the promoter from

selling of the unsold units in the subject project. In compliance of the

orders of this authority, the Engineer Executive visited the subject

project on 04.08 .2021. and a notice w.r.t restraining of sale of unsold

units in the subject project was pasted in the office of the builder/
promoter. A report in has also been submitted on
24fi82021 which hirs been :ord.

25. It was alleged by the counsel r the

i
"i
promoters have no rt co ngage in sale

consequences and further requested

iterd vvith penal consequence
without being visiterd

that Sub-Registrar,
--.Jr-- -- ---, ;hahpur may be directed
Badshahpur di not to register

thr dues of the,respOndent promoters to R11

conveyance deeds uhtil the

are cleared. The promoters should further be directed to deposit a sum

of Rs. 100 crore with the authorityto secure the sums due to the Rl1

association in light of the facts and circumstances of the case. The

counsel for the conrplainant contended that the R11 association has a

charge by virtue of s;ectibn 19 of the Haryana Apartment Ownership Act,

1983 for unpaid dues against the apartments. He further submitted ttrat

the directions issued to the Sub Registrar for prohibiting registration of

sale would therefore, be in line with the said section and will further the

mandate of section 3 of the Act which essentially is "no registration no

sale". The complainant alleged that the promoters continue to sell un its

Page 33 of76
ffiHARERA
ffieunuenAM Complaint No. 2785 of 2021,

in the project through big resellers like M/s Evinos Builders Limited and

M/s Indiabulls Commercial Credit Line Limited fPages 33 to 37 of the

additional documents filed on7.02.2022 refer), who are not allottees in

the true sense of the term and are only holding the units to sell to other

buyers. Conveyance is still being done by the promoters to the end

buyer. The authority must take cognizance once this information is

brought to its notice. ,;ffi '-',;.-]s;{*##.

26. The respondent promote.t ffiffiffi ble for penalties under section

59, 61,, 63, and 69 of the

" a
t
,, ,,ii;;: :,

requisitions the reoord of all sale since 24.17.2020 when

rtion of criminal complain.t

the order for regisffat cr against the promoters,
F*
t ,*a
for non-registration of the project, was first made by the authority. It is

imperative that the respondent promoter, ,r* held accountable for the

monies collected by them in terms of conveyance deeds referred in the

application for additional documents dated 07.02.2022.

27.

given/allocated to M/s Indiabulls Housing Finance Ltd. who are their

financer and M/s Indiabulls Housing Finance Ltd. is selling these

properties and conveyance deed is being executed by the promoter.

Additional documents filed by the complainant vide application dated

07.02.2022 on pages 33-37 reflect bulk inventories in the name of two

Page 34 of76
 HARERA
GUI?UOl?AM Complaint No. 2785 of 2021

entities M/s Evinos Builders Ltd and M/s Indiabulls Commercial Credit

Limited. The counsel for the complainant alleges that these entities are

now selling the inventories and conveyance deeds are being registered

in violation of order dated 20.7,?,021 in the present complaint and order

dated 24.L1.2020 in complaint no. 3687 of 2020. The authority

restrained the promoter for further sales in the project with effect from

20.07.2021. The conveyanrcl tted by the comPlainant

,rillrr:

provides date of execution veyance deeds which are Post

28.

authority keeping in view, the interest of the,alloXtees and the fact that

infrastructural works dr'e pending in the subject project for completion

apart from other dues, the authority thinks it appropriate that an

inquiry under section 35(1) of the Act the instituted in the affairs of the

promoter

(i) To ascertain whether any sales have been made after restraining

the promoter on 20.07.202L andwhether the conveyance deeds

Page 35 of76
ffiHARERA
ffi,eunuenArvr Ccrmplaint No. 2785 of 2027

submitted by the complainant and also the units mentioned in

the list of conveyance deeds submitted on 07.02.2022 have been

sold post the restraining orders.

(ii) To ascertain whether that no unsold inventory as existed on

20.07.202L, has been put to sale either directly or indirectly

through any other entity.

(i ii) The list of unsold inventgries as on 20.07 .2021,.

l:' ''t= "" ..: .t-

(iv) The list of sold inventories as on

n 20.07.2021
20.07.2021, along
al with details
j.i

of buyers, builder buyer , lmHntp, sale considerations, etc.

Iv)
ociation

(vi)

(vii) Details of loans and advances given with r:op/ of accounts.

fviii] A report

an d exp e nditure in curred/

-ldile$e d to th e p ro m oter.
.Ttd:"
'"". *:,$
'
[ix) Role of Sh. Lalit Goyal in-the tRE6'Group of Companies be

ascertained.

iii. To order the respondents (R1 to R7), jointly and severally to

deposit the cost of pending works with this authority, with

withdrawal being subiect to completion of works to the
satisfaction of this authority.

Page 36 of76
 HARERA
GU11UOI?AM Complaint No. 2785 of 2027

29. The attention of the authority was drawn towards the fact that a sum of
Rs. 32 crore is required to complete the pending works in the subject

project. The complainant in this regard has placed on record a

"Technical Due Diligence Report" for the Victory Valley Condominium

Owners Welfare Association dated February 2021prepared by the M/s

Cushman & Wakefield. tn the said report [Page no. 138 to 141),

estimated cost for pending i{,,fm,ffiU-cjqre works at the subject project

j'
".1.i'.\{#ii,#r
is mentioned. Further, the .ffittIffthe
Jj;,aj;
complainant drew attention
iff#'
of the authority towalds gfe fa,Atrtfrat ttris U,1:.ov Valley Condominium
.1
tioqilrai tbe ,$tion having
.

0wners welfare erstwhile

,1.*
governing bodv rfiernbers of the'employeet" promoter and N0T
" $'T' tf.,rlu
;i -.'rl,-$ ffi ;- ,**,.*. argued that this
ALLOTTEES. rhq f"T ,q*. epmptlinafit*has
#?t"t:ll
't[
5" :+Sr. H ] : f#
factum may be asigttaiq..qf.o,tn Sre [[st gffffittp'es filed with additional
ffi .: :l *.
}ffi "'',**f
\:d"
-*'#.'5*u. '

documents on 07.02:ZO]1,*, ...,,* ''"*gt'

'J#se1lt :ew $ko, _-1 ,"'"
30. Regarding the backgrou"h'uria.l tfffrT6tr this report was prepared, it was
s ubmined bv .r,.1[ffirgilroi'tt1u rr*plrilir&rt this vi cto ry valley

Condominium Olyners W lfarg 4ls3ci3tiop "'qvas to take up only the

,,.",r
1 '"G.. "'tl'{,ll
ii ,nr ;:.,'4ii'11
maintenar.. *oik'-itfi6..Jt'hai'Ot *oikr' Whitf, were pending for
completion of the projectwere outside its ambit. Accordingly, to clearly

delineate the scope of maintenance work and incomplete infrastructure

work in the subject project, this report was prepared. The report was
attached with the complaint and the copy of the complaint was sent to

the respondents.

Page37 of76
 HARERA
GURUGRAM Complaint No. 2785 of 2021,

31. The promoters are also directed to deposit the cost of incomplete
development works and payment of dues to the resident welfare
association in a separate RERA account to be opened while registering

the project.

iv. To order the respondents (R1 to R7), to complete the pending

works in a time bound manner and obtain completion
certificate from the competent authorities or in the
alternative exercise r section B of the Act to take
over the proiect a mpletion of works by a
competent body or a
32. The counsel for the respon on this point submitted that

the development works in the subject priipjgct are complete and the
I

.:

report by a third parfy carries.no meaning,lu,w$,fn tt . authoritY has also

.

appointed local co#mission in the other nf

cas'' no. 3687 of 2020
., ,- ffi*.,,s
titled as Rakesh SaChdeva,Vs M/s KSS propeJ
!.$tie-s.iW.r.t th e samerproject.
,I,s }
T#
The plea taken by til; f;r*.al;ounsel i.,* re respondent no. 1 to 7 was
t,li .,j' n$ "::

vehemently opposed o*y the counbel for theu complainant as th e report

has been got prepared by the erstwhile reesident welfare ass ociation

which consisted of tnb eiilflto$eBs 0f *.itbFod'drie. itself from a reputed

third party which is normalll irxuolvgd th prefrat'ilrg such rype of report

and the local commission report is on some specific points and is not a

comprehensive one. The local commission's report dated 74.72.2020 in

Cr No. 3687 of 2020 has also been perused by the authority which is

relevant to some extent in this case and the conclusion of the local

commission report is reproduced below which clearly shows that there

are deficiencies in the subject project.

Page 38 of 76
ffiHARERA
#*eunt,lGRAM Complaint No. 2785 of 2021

33. As per the local commission report, the site of the project is visited
physically, and the observations are based upon the actual construction

at site and described further:

1. Occupation certificate for all the towers has been granted by DTCP
Haryana but same internal and external patches are unfinished in Tower-
A, B, C, D18, D76 and D22 i.e., plaster and paintwhere unsold inventory is
Ieft. Further all the services are provided as per the sanctioned plan.
2. Secondary fire staircase in the tower was made mandatory in the yeqr
2017 by the Director, Fire Seryi,ces, Haryana qnd the work for secondary
fire staircqse was started bU;!$lldatC it is not completed in all towers.
3. As on date an ultimate load kw and pqrtial load of 1008 kw is
sanctioned vide memo no, 'E/C/Sol-221 dqted 1-3,2.2017 by

been granted
34. Although, it is matter of fact that the aforesaid LC report was confinr:d

to fire safety, electrical infrastructure & lift and lobby etc., whereas tlhe

list of incomplete infrastructural work has already been produced

before the authorig' 2, per technical due diligence report,

35. The authority after going through the technical due diligence report and

hearing arguments of the parties has arrived at the conclusion that the

reply of the respondent is very casual and general in nature without any

specific averment on the incomplete infrastructure work that have been

pointed out in the "Technical Due Diligence Report" from page 138 to

1,41.

Page 39 of76
ffiHARERA
ffieunucRAM Complaint No. 2785 of 202L

36. The Department of Town and Country Planning Government of Haryana

grants license for development of a colony/ real estate project under

the Haryana Development and Regulation of Urban Areas Act, 1975 and

Rules framed thereunder. The license for development of the colony is

issued for a fixed period and after expiry of the license period there is

provision / practice of renewal of licenses and there is no time limit

prescribed/ fixed for com project. In case of plotted

colonies/ real estate proj etion of part of the project is

development workS. There are'very few cases where the promoters

have obtained completion certificate of a project. Leaving open the

completion of project is causing hardship as well as resentment among

allottees as they aie not sure as by what time the infrastructural

fdoilitids ahd cd"mmertial facilities as per the
iry'feoi
facilities, community
lan wili comd on ground. There are projects where
approved Iayout plan
,:;
licenses were isiue[ aeCadbstago hive nbt obtained completion
.::..irir=,il
certificate and the''comrnuniqy f4eil.,ities qmd;pmenities have not been

provided even now aftei lapse of years together and there is no

certainty as by what time these would be provided for which conclusive

proof is obtaining completion certificate. Similar is the position in case

of group housing projects, rather position is little worse as in case of

group housing projects the practice of occupation certificate is followed

which is granted under the Haryana Building Code and is only in respect

Page40 of76
HARERA
GURUGRAM Complaint No. 2785 of 2021,

of towers/ buildings found habitable with no concern for community

and commercial facilities. The license is granted under the Haryana

Development and Regulation of urban Areas Act, L975 and there is no

provision of granting oc but provision of granting part cc/cc for the

project. The oc is granted for the building whereas part cc/cc granted

for the project. There are large number of cases observed by the
authority where individ *L?u. been
granted OC and the

buildings in the whole been granted OC and also

housing projects part CC be granted for that part of the project whertl

common areas have been developed, infrastructure have been provided

to serve the buildings for which 0C has been granted. There have been

projects where builder has obtained oc for all the towers but number

of infrastructures'works ih the broject,including roads in some of the

areas, regular water supply, electric supply and sewerage systems have

not been laid. The allottees are living in miserable conditions. There are

no connectivity with thel main roads' Open spaces and green areas are

not developed in the project, but OC is granted for the towers and there

is no binding on the builder to complete the lacking infrastructural

facility in a time bound manner. The authority observes that licenses
should not be gralted in those areas where during the initial licensing

Page 4l of76
ffiHARERA
ffieunuonArrl Complaint No. 2785 of Z\ZL

period, the agencies responsible for external development services are

not in a position to provide the same. Similarly, without initially having

24-meter road connectivity licenses shall not be granted as there are

many such projects where there is no likelihood in near future for such

connectivity and even in some cases this connectivity will never be

available although planned on the papers.

37. As in rare cases promot..r.?fr,?g letion certificate the authority

observes that after the OC fof;;il rs in a group housing project
.^sl:'+r I"1 lir'":i']..\\iw'
has been granted un,Qe{,i'Hi*inrii Bulaing code a time limit be
i'::i''r':1'''I i': I

jafr *' _;t I

r . t .
prescribed for -'
lqtion:rdbrt.ificate of the project so that
"bffitry
:lr: ri
,1
"
r-r',.ri,,.;j6.5
* ",i:
:., ,..t..,

allottees comes to tnow as by what time i"iieil.uctural and common

areas will be developed ,na .OmmUi,v L"a B#ilercial facilities as per
:.. ,: .:.]

Iayout plan shall beprriliaea*i I | 'l '.,Ii'*.,u

3B' The authority is of the cong-.ia*rd-a.+i.# d;;; it is an obligation of the

'rrq, r i . ''lri
ll -'-ir1 1,111,, ,r l1_. l!
=,",.
respondent promoter to db'mpr.t. tt. .uu;u., project. Accordingly, the
responden, oro*tteg is alrqtqja
" * i 'E*( S ;"fldiet€ the subject project and
l-'t* s ;k"
obtain the completiln,,
fc.9$ifiQate ;W,,I.el tpe subject project. The
respondent prombtilr-ilab to declhr. it,. tiilerin. for completion
of
project and obtaining the completion certificate.

v. To order the respondents (Rl to R7), jointly and severally,

to
deposit their share of common area maintenance charges
and
other dues with R11, with a direction to keep the said monies
deposited with this authority in an interesi-bearing deposit
for and on behalf of R11, until such time Rl1 is handed
over to
a duly elected body of resident owners

Page 42 of76
ffiHARERA
#*cltRLrGRRtt,l Complaint No. 2785 of 2021

39. The counsel for the complainant has argued that R1-R7 admittedly owe
a sum of at least Rs.15,51,7+,557 /- [the sum as of 31.03.2020) in CAM

and other dues to the association, RL1 fAnnexure C9, audited financial

statement of RlL for the year ending 31,.03.2020 at page 383 refers)'

The counsel for the complainant averred that respondents R1 to Rz

may, therefore, be directed to pay their dues as of today to the

association [R11). It is the f the promoter to pay common

maintenance charges to the of allottees in resPect of unsold

inventory.

40. It is apparent from the audited financial statement of R-11 association

I

that a sum of R, 15,511,74,557

1.5,511,74,557 wi due to the association as on
/- was
31,.3.2020 from the M ciarges against unsold

were payable by the

and it is accordingly orde

41. The counsel for theiricompl

admittedly not .?-H:,-t::o: topay,an$ ,1.,u1uilF"ntle soverning bodv

of R11 was not an "hisociation of allottees" 7'Pafie265-268 refer) within

the meaning of the Act and did not even conform to its own bye laws

(Page 273 clause 5.1 and 5.2 refer). Itwas a body admittedly comprising

of employees of the respondent company who were neither

allottees/owners nor residents (Page 265-268 refer). The counsel for

the complainant further submitted that the authority has jurisdiction to

Page 43 of76
ffiHARERA
ffieunuenAM Complaint No. 2785 of 2027

decide as to whether or not the association R11 when first formed was

an "association of allottees'f within the meaning of the Act. The authority

cannot deem the project to be handed over to such a body on the date

of deed of declaration i.e., 09.02.20L8 (Annexure CZ - page 246),

especially when the project was and continues to be incomplete to this

day. It is of import to note that as many as 200 units were admittedly

unsold (page 332-358 details of

lunsg]a units) on the date of DoD i.e.,

association of allottees was forrned,in the true sense only on02.OZ.20ZT

,,."
42.

the District Registrar, Firm & S.o;i;ties who appointed administrator

vide order dated 46.70.21 and fresh elections have already been held.

Moreover, the promofer difl not commit any illegality in mortgaging

part of the projecthiid'ctel5,,t,a effiS,Hi,tf &rdcomplainant and unit

have been conferred upon the respective allottees.

43. At length the discussions were held and while normally the liabilities
payable by the promoter before handing over to the association of

allottees remain recoverable from promoter and it is his obligation

under the Act if such outgoings/ liability are before such transfer but in

Page 44 of76
ffiHARERA
ffi- ouRUGRAM Complaint No. 2785 of 2021

the present case, it is evident from the bare perusal of page 265 to 268

of the complaint and the additional documents filed by the complainant

which includes details of allottees filed under rule 26(ZJ of the Haryana

Development and Regulation of Urban Ares Rules, 1976 by the

promoter. It was argued by the counsel for the complainant that it is

clear that the erstwhile RWA was not an association of allottees and,

th erefo re, n o pro j ect handov."..,q,-4.,::$ ,the meaning of the Act could have

ch an association: The outgoings/ liabilities are after

tl

:ssion to the assoclaiioii of allottees as per the deed of

' t::"1'

I and hencb, aie liable to be recovered as per the

provisions of the-Hury."" elrtt*eflggw@lp Act and the Haryana

R"I6#+$n ftn .trpe +;y;iq,l riling or the deed or

'$*U+
t$0., il "*r, ,, ' ; F ,**'*
dectaration a ,urh'-LfuRt.t;S.5+
declaration i.to*.t ila$ffiittedly
ruhtffi'r\*s.ffis dh &io4,br was "idmittedly due from the

promoters to the asiociation [pg,'371 of the complaint refersJ'

44. The authority observes thrat as per the deed of declaration, the buildings

were transferred.to [1r.'aisoli#i.U oi*1ottt*s?.nwa and the repair &

maintenance was.taken gf:,,I,b{ the,a$sociLl,,,l., but if there are defects

either w.r.t tfre st'fdltfif; or'Workmanship, the same will have to be

rectified by the promoter on its own cost up to five years of obtaining

occupation certificate. Further, a dispute has also been raised that

heavy amount has been spent by the erstwhile governing body of

resident welfare association for which the current governing body may

investigate and if there is any criminality on the part of the erstwhile

Page 45 of76
ffiHARERA
ffiGuRuenAM Complaint No. 2785 of Z02l

governing body, the appropriate civil or criminal action may be

taken
by the current governing body of the association. The rights and
contention of the parties with regard to the validity of erstwhile
governing body of R-11 association are left open to be decided
by the
lawful authority may be such as the District Registrar of Firms and
Societies, Gurgaon or the Director Town and country planning,
Haryana
in whose office these doc filed by the promoter after a
\
specified period of obtaininr certificate.
45. The deed of declaration is ritdl;iifiir.,. registrar and also with the
competent authority,. irector, Town and Country planning,

proceedings that #*1.#

il rrll
i.l-i
,ffiiip"flargl,i thp'fiivil court as informed
.tt, :rl..; iiil
=. ,r;t. ,,*i :,_=
by the counsel ror the com,plaipant. Aeqordi"nglyi the
complainant did
not press for any action uy trr; atnrroi,iuttltir..grrd.
The matter
regarding handing over maintenance of common
areas to the erstwhile
association which is alleged to not to be the resident
welfare association
as per the Haryana Apartment ownership Act, fas none of the governing
body member of the erstwhile association was
an ailottee but
employees of the promoter company) may be
raised by the complainant

Page 46 of Z6
ffiHARERA
#"ct;RUcttAM Complaint No. 2785 of 2021,

before the Director Town and Country Planning to initiate action

against the promoter/ license holder for acting against the provisions

of the Haryana Apartment Ownership Act, rules and bye-laws made

thereunder.

vi. To order the respondents (R1 to R10), iointly and severally to

refund the entire corpus of club membership fees collected by
them to R11, with a direction to keep the monies deposited
with this authority in an in",tsrest-bearing deposit for and on
behalf of R11, ,rrriil such time R11 is handed over to a duly
elected body of resident b;unti-is.
46. The complainant has allegga'ttyt.HfB (Quict< Real Estate Pvt. Ltd.) is a
shell company foundffi{ nf,opoiels of thEIREO group and two of its
J ,,
employees are share_holders oftS0Yobaich in the said shell company. It is

alleged by the counsel for thecompleiinant that R8 had demanded and

recovered a sum'bffipoxilxitelf of nsi 4[,cnor,-s in the name of club

,- :1

membership fees. Fultheq, jt has been suUr4,,itt, that under the garb of
.-: :r ,,,.,,, 1.. -,,.,r,, i

membership nearly four;timeii,fli-ucoif of ionstruction and land has

been recovered which is againslthe cOndition of the license. However,

\i
'1
"':.
in its audited financ,ial.statemerrt-s it. cost*'6tJand and cost of the

construction of ftueifi+dfi;tyhuildings i, ffi as Rs. 10,50,00,000/-

. Further, the complainant has annexed the audited financial statement

of R8 as annexure C-15 to support his claim.

47. On this, the counsel for the respondent no. 1 to 7 submitted that the

respondent no. B is a separate legal entity, and the promoter has no

direct concern with the same. The respondent no. 2 to 5 have been
wrongly and illegally impleaded as such and they have no personal role

Page47 of76
 HARERA
ffiGUI?UGI?AM Complaint No. 2785 of 202L

at all in the matter. Their names are liable to be deleted. Furthermore,

the club membership charges have been paid to respondent no. g as per

rules and regulation of the club. It was optional for the complainant to

become a member or not. Moreover, the club forms part of the FAR of

the promoter and the promoter had every right to transfer the same as

per law laid down by the apex court in DLF Vs. state of Haryana and

others. All developers have fer the schools, dispensaries

and community sites to thi the complainant have no locus

standi to object

48,

much as Rs. 7,08,000/- (Annexure R11-a [coily) pages 15-18) was

collected from every resident owner towards club membership by the

frau d o rch estrate d-o-n; th e

gi dpnl:wn,F- tt{f p ro m oters. Th e s ai d
'{n-l I .,IsJ;{,
19
iq I
company recovered a sum of approximaiely Rs. 45,00,00,000/- in the

name of club membership fees. In its audited financial statements, the

cost of land and the cost of the construction of community buildings is

Rs. 10,50,00,000/- [Page 433 para 30 and page 456 para 29J. The said

company has failed to give an account of the monies collected till date

fAnnexure c13 at Page 394 of complaint and Annexure R11-5 at page

Page 48 of76
 HARERA
GURUGt?AM Complaint No. 2785 of 202L

L9 of reply of R11 refers). Further, information furnished under Rule

26(2) of rules framed under the Haryana Development & Regulation of

Urban Areas Rules, 1976 shows that until 31.03.2020, RB, had paid R1

a sum of only Rs. 49,28 ,230 /- (page 37 of additional documents filed by

the complainant on 07.02.2022 refer).

49, Counsel for the complainant further submitted that the obligation cast
upon the promoter under 4)(0, t7(2) read with section
z[nJ(vii) and the law laid the Supreme Court in DLF v
Manmohan Lowe and Ors Vs. Union of India &

Others is to hand to the association of

allottees. It is wh more than 4

times the cost anG buildings from the

resident owners.

50. He drew attention para L23 in Bikram

Chatterjee&OthersvUh Others (2019) 19 SCC 161 is

extracted below:

"723. lt is clear section 77 have to be

ultimately handed competent authoritY as
the case may be. effected by the Promoter
of the common areas as defined in REIU. and otherwise reserved under the ptan shall
be void and inoperative."
51. And further invited attention of the authority towards DLF Limited v
Manmohan Lowe & Ors (2014) 12 SCC 231- para 58 of judgment reads

thus:
"Cost not on aPartment owners
SB, We have found that the colonizer is legatly obliged under section 3(3)(iv)(a) of
the Act to construct at his own cost the community and commercial facilities

Page 49 of76
ffiHARERA
ffiGURUGRAM Complaint No. 2785 of 2021

stipulated therein and an agreement has to be entered into by the colonizer with the
DTCP under the Development Act by which the colonizer is prohibited by law
from
recovering the cost of providing those facilities from the apartment owners".
52. Attention of the authority was also drawn towards other relevant
sections of the Haryana Development and Regulation of Urban Areas

4ct,7975:
"Section 3(3)(a)(iv) - to construct at its own cost, or get
constructed by any other
institution or individual at its cosl schools, hospitals, community cenires & other
communitlt buildings on the lands set apartfor this purpose.....,..,,
"LCIV'A clause 1c) - The oynr.l:!+llliift,fiis3wn cost construct the primary-cum-
nursery school, communiQt bulldihii#ffinS'qry and
first aid center on the lond set
apart for this purpose....." i '.
,,',,
"LCIV'A clause 1e) - rh9 own,fi
$ lti ypt be allowed to recover any amount
whatsoever on account of i
llterna'l coymiiiity buildings from the Jtat holders/plot
holders..... .,,-'.',
.,,.nf.l . , -,
53. The counsel for the comp'i4inant subryitted that the unfair trade
practice perpetrate.d !y the r€spondents iil nespect of the community
buildings is depidte'd tielow:
,l ::'L .. rji '':

Sale of community
buildings *aw

Allottee

54. The complainant further submitted thatwhat could not be done directly
has been accomplished by the promoters indirectly as shown
below.
' This unfair trade practice has to be nipped in the bud.

Page 50 of 76
ffiHARERA
ffi" cltRUcRAM Complaint No. 2785 of 202t

Sale of community buildings *4fcost of land & Coltected as

forbidden by law communlty building membenhip fees
Sectlon 3{3){iv)(a} of
Subversion of
Development Act,
law, R8 used as a
Hon'ble Supreme Court in
- para 58 of DIF Limited v vehicle to siphon
Monmohan Lawe & Ors off money
{2014} 12 SCC 231
cost of land & I collected as
Rs.
- para 123 of Eikrom community building memuerstrin ree
10,50,00,000/-
Ch otte rie e & Othe rs v U nio n
of lndia & Ottrers (2019| 19
scc 161
I
Promoters tR1-R7)

55. He further contended that to note that neither RB nor its

the claim of the contplainant or R11 association. The relief claimed qua

the community buildings therefore, needs to be allowed on this ground

alone. While R1, R6, and R7 claim that the community buildings have

been Iawfully sold for consideration, but they have not annexed any

document whatsoever to prove their claim.

56. As the respondent RB, R9,ind R10 have failedto file replyand also to
ll'

put in their appeafance before the authority their defence is struck off'
i' , ,,, 'l
The authority after cbnsi$ering the documepts placed on record and
',

after hearing both the parties observes that there are three communiq/

sites in the subject project namely community building - I; community

building - II and community building - III which have been mentionecl
in the deed of declaration as recreation facility/club-1, recreatioll

facility/club-ll and recreation facility/club-lll having an area of 91 0.719

sq.mtrs.; 37O.Zi3sq.mtrs. and 385'655 sq.mtrs. respectively' The FAI1

Page 51 of76
ffiHARERA
ffieunuonAM Complaint No. 2785 of 202I

for these community buildings have been consumed out of the available

/sanctioned FAR of the promoter. As gathered from the Directorate of

Town and country Planning, Haryana, there is a requirement of
providing one community building on achieving population of 10
thousand. Below this population there is no requirement as per norms

to provide community building. If a builder desires to provide

community building, ,h.n"$#ffi3,Jg provide r - ---- the same from the
i,:"-.Hii;1rd{*}f"rtfl..
sanctioned FAR. Here in this pro'jqdtalso the promoter has used FAR in

these buildings out of his Sanctioned

- ri-i F
-."fi-- nd there is no requirement
i-:^- r eYqrl urrlLlll
:,: ;_..',

to hand over the same,o ,fra r"riaent wetfrr. ,rrociation. The common
l
areas are defined in the sbction pto ot, tn* Haryana Apartment
ownership Act, l,,b$5 *rri.U.$$d+iau, ,, unaln - *
'ia,
3a ",o^^io| '1,i,,inruities" untless otherwise
provided in
the declaratig-n pr lawful amendments thereto, means,-
(1) the tai'd'ia,,yy6in in" nuilldjngts totcated;
(2) the foundaUil,i1l!1: abluins, giiders, beams, supports, main
wallg, roofs,-halls,,corridolp robbiqs, stairs, stair ways,
fire
e s c a p e s a n d, e n tr ayc e s a n d*exi ts,of th
e b u i rd i ng ;
(3) "
the biiemei,ts,'ciiloit, ya1ds, g,rlirrr, part ing area and
storage spages; ,
(4) iaghg oj or
-premises for
The the janitors persons
employed for management of ihe pioperty;
(5) installation of central services such oi po*rr,light, gas, hot
and cold water, heating, refrigeration, air ionditio,ning
and incinerating;
(6) the elevators, tanks, pumps, motors,
fans, compressors,
ducts and in general att apparatus and installations
existing for common use;
(7) such community and commerciar
facilities as may be
provided for in the declaration; and

Page 52 of76
 HAl?ERA
GUl?UGI?AM Complaint No. 2785 of 202L

(S) all other parts of the property necessary or convenient to

its existing maintenance and safety or normally in common
use;
(emphasis suPPlied)
ST. From the above it is quite clear that it is left to the promoter to declare
the community and commercial facilities in the declaration filed at the

time of filing deed of declaration. Keeping in view the above facts if the

builder has not declared community facilities/ club in the declaration to

the same
'alffi*rirdrs,onsibility to transfer
be the common area then het*hti'S

to the association of allottee,S-','thi;, matter was already settled in the

'rf I li''.:iir'r
,.,,,,,.,.,,,

judgement of Hon'ble Supreme botirt,lf lndia in Civil Appeal No' 10930

of 2013 (Arising op1. f SpbciialgveP.btition [Cwil) No.3427 5 of 2009,

decided on 10.12.i01E; M4NU/SC'/i+? ,l,s/2,0-1,?l wherein it was held

*rlt ,'1" ;.. l
that: li.'i
+! 2 ,, *l ir
l&"ffi- '1.,*
1= =i :,, u;. r
*
'
.,i

:. ,' -o *
,43. We are also of *p viewuthat tke iign '*
ioui:*lr:Elu)gmmitted an error in directing
the DTCp to decideldp;ppi:irtipis ofr*iiW{,$frr}$ owners with regard to
the
section
declaration made av tnliiti,nli:ir,rhi cofipetentAfithority is deftned under
3 (i) of the Apartmint A.t Siroq,g4d 1(il:fii_iyi4ies for filing of declaration in the office
of the competent Authority,'Tiluffir*;rjlfl o! the Act prescribes penalties and
B permits the prosecution
[rosecution for failure to fiti a declaratioi'and Section24
only with the sincti.gn pi the Competeni Aithority. ln .a.given ,71e if the developer
does not provide tilinribn'orihis i7 Torititiis iike'coi'ridb'rs, lobbies,
staircases, hfts
and fire escape etc. the Competeni Authoriry c,1n look into
the obiections of the
provide
aportment owners but when statutp,has.given q dfsaretion, to the colonizer to
or not to provide as per Sei:tion S(fl(Z) i7 fie eportment Act the facilities referred to
in Section S (S) (a) (ii) of Developibil eit, in our view no obiection could be raised
by the apartr4ent owners ond they cannot claim any undivided interest over
owners
inose lacitities exceptthe right of user. In the instant case the apartment
using the community
have raised no grievince thai thry orc being prevented from
and commerciil facitities refe*ed to in Section 3(3)(a)(iv) of
Regulation Act, but
they cannot claim an undivided interest or right of management over them
(emphasis suPPlied)
58. Aithough after coming into force of the Real Estate (Regulation and

Development) Act, 2OL6 in its entirety on 01.05 .2017, the position has

Page 53 of76
ffiHARERA
ffiGURUGnAM Complaint No. 2785 of 202L

changed regarding common areas but keeping in view the fact that the

license for this project was granted much before coming into force of

the Real Estate (Regulation and Development) Act, 201,6 hence the
common areas in this project seems to be governed by the provisions of

the Haryana Development and Regulation of Urban Areas Act, 1975 and

rules made there under and provisions of the Haryana Apartment

Ownership Act, 1983 and rulesian:d e-laws made thereunder. Even

.

th e state government of Hary..,qna vide'memo no. Misc-229 S / zoZI / 17 T s

dated 25.01,.2021 issued policy directions under section 83t1) read

of the Act of 2416,t re$arding treatment of community

facilities fallin$'in li'cense coionies as under:

: , ,;, '-.
....

ties falling in
ation arising out of
c o nfI i c t i ns iiaih{ti
"
i of # " il:m o fftl r.A['id #,,[r ne ) ic') o rc, yrs - d -
vis the rtirlt'[ngAaplt,llbrtrbrdbrsni}'atl[
fias, yor ait intents and
p urp o s e s, the,,,c6rnmon,,...4.t:.eaffi hll'l b_e b.e oi,gin e d by th e d efi ni ti o n a s
tg

provided under the special ali,of 1983 ibid in force in the'State since
ec,iaii Act
2 8, 0 9. 1 9 8 3 a n d R u,l e s of !|-.8,1"fi dn ed' th e r e u n d e r. A ny c o n tr a d i c to
1,?;O'f,ft '-'-'-'--"'J ry
provision/ definition ;,;'
i i '!
;ni{ in t.fie REM Act, 2016 shail be
$11 n d!1 r1t fo r a li 1a 9 t; a n d p u rp o s e s.
c o n s i d e r e d tatNb e rei

59. Regarding the allegatlofi of,the tounsel of the complainant that cost of

community building C.fup) -lias been from the allottees in

fSoveined
indirect manner for something what cannot be done directly. He has

alleged unfair trade practice by the promoter as mentioned in

paragraph 57,58 and 59 above. The specific attention of the authority

was drawn towards the judgement of Hon'ble Supreme court of India

mentioned therein.

Page 54 of76
ffi
**[
HARERA
Complaint No. 2785 of 202t
qdiiigrr'
GURUGI?AM

60. The relevant portion of the judgement is reproduced herein for ready
reference:

Costnot on APartment owners:

"3g. We have found that the Colonizer is legally obliged under Section
S(S)(a)(iv) of the Actto construct athis own costthe community and
commercial facitities stipulated therein and an agreement has to be
entered into by the Colonizer with the DTCP under the Development
Act by which the Colonizer is prohibited by law from recovering the
cost of providing those fap{li.ties from the apartment owners, The
operative portion of tha. *grcsry'lt.executed by the colonizer reads
as follows:
j) That only conven sufficient for requirement of the
Group Hous.ing wilt he,allgwed which shall be approximate one
shop per one tioi'iand p,ersans, covering a maximum area of
200 ft per shelp; .
sq,
,',tt: , .,,,1
k) 'uate educational,'health, recreational and cultural
amqni'q.ies to the
the, norms andand standards provided in the
standards provided
.in,
,utiiaiiiw oeuetopniiilyp vtan of,the area shall be provided'
The otwner shall at his own cost construct the primary-cum-
nurserv scnoot, cofftmiunit! building/dispensary and first aid
centre on the land set apart for this purpose, or if so desired by
the Govt. shall transfer to the Govt. at any time free of cost land
thus set apart for primary cum nursery school, community
buitdirg/dispensary andfirst aid centre, in which case the Govt,
shall be at fiberty to transfer such land to any person or
instrut:tion including a local authority on such terms and
conditions as it maY IaY down.

o) That the owner shall abide by the provisions of the Hnryana

APartment and OwnershiP Act,1983'
p)Thattheresponsibili$oftheownershipofthecommonareas
and facilities as well as their management and maintenance
shall continue to vest with the colonizer till such time the
responsibility is transferred to the owners of the dwelling units
undertheHaryonaApartmentandownershipAct,T9B3,
section 3(3)(a)(iv) of the Development Act read with the
above'
40.
mentioned clauses in the agreement would indicate that
ownership

Page 55 of76
 HARERA
ffiGUI?UGRAM complaint No. 2785 of 2027

of the portion of the land set apart for the common areas and
facilities referred to therein vest with the colonizer so also the
obligation at his own cost to provide those
facilities in the land set
apartfor the said purpose, The colonizer cannot recover cost ofland
or the amounts spent by him for providing those
facilities from the
apartment owners. It is for the said reason that clause
7 of section
3(fl of the Apartment Act has not made it obrigatory, on the part
of
the colonizer to include the community and commercial
facitities in
the declaration, If the colonizer includes the same within the
declaration, then section 6 of the Apartment Act will
kick in,
consequently, the apartrB?.nt, owners would be
entitled to the
u n div i ded interest i\
"f.QsB::dii:1rpfr
tn, co mmunity a n d co m m e rcial
facilities provided tnlii1iry.fiij{ipni'bearing the cost incurred by the
colonizer in purchasirartlap nd the cost of construction. In our
view, the colonizer cdila""A''ii"fia ipcluded the community and
commercial facilities refeted to in Section 3(3)(a)(iv,
\_/ l_-J \. )
t of the
Development Act, because the same ii,s meant
for the benetfit of the
entire colony, not merelyu;tn!e;fl,!
the-flat/, paiq1ki1,t wners in one part of
t\ siici they for:i pait ol m, kiy out ptans duty approved,
,cylont
tafi4!,oto1t?,i,4arya.-,g,'ii:p7'io,..rouit ho,'usins societies
area as
Y,,:',io
well.

rurlr the
61. rFrom LIre contenrftf*tpAi
uu,Lenrsko.l-tl:" t"P!$''ff
.til"oiriq, .e
if5q,[l{l$g charging cost of the
community facilitiei iiiaireCtly_aS.
{;bti[+ru the para no. 57, 58, and
5e above, the conditi",l'iffi3i-;;;'fdt ..
,g..ument in pursuance
l,
' l

to license granted undei the Haryana Development

and Regulation of
urban Areas Act, r.g7Sand the ,Burel made.theleqnder and the Haryana
Apartment owneiihip Act, i9g3 aileged to have
been viorated by the
promoter, the complainant is advised to
approach the Director, Town
and country Planning Department, Haryana,
chandigarh for necessary
action in this regard.

vii. To order the respondents_ (Rl to R7) to

keep deposited with
this authority, the entire RFMs deposit rro"l
with interest accrued
thereon in an interest-bearing deposit for"and
on beharf of R11,

Page 56 of 76
ffiHARERA
ffi- eunt,lGRAM Complaint No. 2785 of 2021,

until such time R11 is handed over to a duly elected body of

resident owners.
62. The counsel for the complaint also drew the attention of the authority
to the fact that a principal amount of Rs. L8,32,45,7581- as of
37.03.2020 was admittedly collected by R11 (erstwhile body

comprising of employees of the promoter) from all resident owners

towards RFMS (Annexure C9 at page 380 refers). The total saleable area

in the project is approxi._qfgf 2.4,00,000 square feet so this deposit

h*' .i^- i '

should ideally have been Rs. 00 /- calculated at the rate of Rs.

upon the promoters to restore this corpus to the R11 association and

may accordingly b,e orrllered by the authority. The obligation of the

promoter to ha
allottees under tllh'Ac$ .?ilbd includqs.:t$q pp[i''[ation to restore the
r*,-e."1 ;
il*pL*F $q t.--FL3&L
security deposit cotiectea to rtin the association. Handover with empty

coffers is no handover. The counsel for the complainant has emphasized

that authority has powers under section 34(0 to enforce compliance of

the provisions of the Act and those powers must be exercised to further

the ends of justice.

Page57 of76
ffiHARERA
ffiGURUGRAM Complaint No. 2785 of 2021

63. The authority directs the inquiry officer/ auditing firms/ fact finding
team appointed under para 28 also to find out as how much RFMS has

been collected from the allottees and whether the same has been used

for the purpose for which it was collected and what amount of RFMS is

transferrable now to the residential welfare association.

viii. To order the respondents (R1 to R10) to settle all their

pending dues towa dors and pay all dues for and
on behalf of R11, un R11 is handed over to a duly
elected body of resi

64. The respondents r.*ofri};, r,r:i :

pending dues towards
their vendors. Alrd#ffi tt ails of pending dues have been
given by the complainant except the dues payable to R11 which will
be
settled by the inquiry officer/ auditing firm. The promoter is directed to

clear the dues within one month of receint rrf inouir\/ rpn^rr eftar
: L'-J --r'
- ,.'t i ..,i' ,,,t'-1,'
.' .,
acceptance by the authority,rThe latiention of the promoter is invited
'rr::l:., ir ,'
+i.::::

towards provision of sgctio" which is reproduced

=l[f#]p
below and accordingly i,.a.rta to com provision.
77.

(4) The promoter shall-

(g) pay all outgoings until he transfers the physical
possessron ofthe real estate projectto the allottee or the
associations of allottees, as the case may be, which he has
collected from the ailottees, for the payment of outgoings
(including land cosl ground renl municipal or other local
taxes, charges for water or erectriciQt, maintenance
charges, incruding mortgage roan and interest on
mortgages or other encumbrances and such other

Page 58 of 76
ffiHAREI?A
ffiGUIIUGRAM Complaint No. 2785 of 2021'

Iiabilities payable to competent authorities, banks and

proiect):
financial institutions, which are related to the
Provided thatwhere any promoter fails to pay all or any
of the outgoings collected by him from the allottees or any
tiability, mortgage loan and interest thereon before
transferring the real estate proiect to such allottees, or
the associotion of the allottees, QS the cqse may be, the
promoter shall continue to be liable, even ofter the
transfer of the property, to pay such outgoings and penal
charges, if any, to the authority or person to whom they
are payabt?,,.,qnfl&eliable
E /'n for the cost of any legal
T;ryigy be taken therefor bY such

(h) after he, e*tffiC'la, agreement for sale for any

apartry,,eht, plqt or building, as the case may be' not
ry1o.r'tgage ii,r'i:rtiai,e-ciicharge on such apartment, plot or
building, as the case may be, and if any such mortgage or
chargeismadeorcreatedthennotwithstandinganything
conitained in any other law for the time being in force, it
shall not affect the right ond interest of the ollottee who
has taken or agreed to take such apartment, plot or
buitding';as the case maYbe:

6S. Accordingly, promoterisdirectedtosettle all dues inview of provisions

contained in section 11[4)(g) and (h) and an affidavit to have settled the
t.,, iir ] ,., '. ,t. -: 't '..
dues be submittediinr:the iegi}tXi of.theiauthorigz within 3 months.

66. M/s Victory valley condominium owner welfare Association is the

registered residential welfare association of the IREO Victory Valley

condominium owners. It was alleged by the counsel for the

complainant that the earlier governing body of the RWA was truly not

representing the apartment owners in the project as the same was

constituting employees of the promoters and NOT ALLOTTEES within

the meaning of the Act.

Page 59 of76
ffiHARERA
ffieunuenAM Complaint No. 2785 of 2027

67 . It was further submitted that vide order dated 06.10.20 21, the District

Registrar, Firms & Societies, Gurugram appointed an administrator to

conduct the membership drive and hold elections for the governing

body of the association. The counsel for the complainant further

submitted that in the said order of District Registrar, Firm & Societies,

it was mentioned that the tenure of the erstwhile governing body

expired in July, 201,8 and thee body,
bod, therefore, had no jurisdiction to run

the affairs of the society. ifEirgfiive part of the order of District

Registrar, Firms and societi,es
'irsti.a
, ,t-
vide endorsement no.

uced as under:
' Aft e r de ta ite
ffi
d,,rt s*i; i o n / d el ib e ta tifi o n th r, b su er,, n d a s p e r r e c o r ds of
LL:-
this ffice
^cc--:,
it ii,! , ,
c.!;ii,ar that victory vaifiy,,conl9,ryilu^ owners werfare
Association, IREA
ASSoctaclon, IRE? Victory
tK.lu-,,vrtc,,.tory (ailfy, sgcto?67
valley,
Vicyory Valley, sector 6z Gur,upramwas
Gurugratm was registered under
the
the HRRS
HRRS Act,
ert, ZQt z,in sily, zfuo
bii'z=inSi)l$, aralln, lrnirir'of
zQlo anarthe ienilie'of the
th,egoverning
oovernino body
bortv of
or
association os pqr byer'loivs iii, twg years whi'ih,.|ltss been expired in year
2018 and now the governing body has no power to take any decision. The
counsel of management also agreed during the hearing
for appointment of
Administrator to conductthe elpction of the governing body of association.
In view ofitl4e above, igt exercisg trib powers conferred under sub

Ministry of Heatth & Famity wetfare, of tidta (Retd) R/o H.No. 846,
"Eoyi
Ground Floor, Sectoi 9, Urban Esintd Near*KataSia
{r4arkel Gurugram _
12200L, is being appointed as Adminiitiator to iinage the day
to day
affair of association and to conduct the fresh elections of Governing Body
of victory valley condominium }wners welfire Association, IRE} victory
valley, Sector 57, Gurugram strictly as per the provisions contained in
the
Bye-laws/HRRS Act/rules, 2012 and Sop guidelines issued
by the
Govt/District Administration w.r,t. covid-79, within a period of 3 months.

The Administrator
further directed that the election process must
is
be completed following the process of videography and the election
be
conducted strictly as per the provisions contained by the Bye Laws/HRRS

Page 6O of76
ffiHARERA
fficilRUcRAM Complaint No. 2785 of 2021'

Act/Rules 2012 and guidetines issued w,r,t. Covid'19 by the Govt. and
'

D i str i c t A dmini str a tio n ".

68. Furthermore, the elections of the governing body have now been held

on02.02.2022under the supervision of administrator appointed by the

District Registrar of Firms and Societies, Gurgaon and approval of the

duly elected governing body has been issued under section 33 of the

Societies Act,20LZ and rule 19 made thereunder vide memo no.2022-

02-0000191 dated 04.02.2

69. The newly elected governi taken over the charge and is

expected to discharge its functiong as per its bye-laws and will recover

the dues as per the powers vest in it as per the bye-laws provided in the

Haryana Apartment Ownership Act, 1983 and the Haryana Apartment

Ownership Rules, 1987.

L
'n
l ,
IL

ty is of the considered view that it is a matter of fact that the

,,,i: . i, 1,,, , ' ,= :,,
r, .f, -
,'
promoter got the residentiii welfare associition constituted and the

Apartment Ownership Act and'the "Hatlrana,uAPartment Ownership

tJ,$

Rules and byelaws provided therein or the association of allottees

of

which the present complainant is also a member may pursue any other

remedy, if available. tf any bungling of funds has taken place that

civil

and criminal remedy may be resorted to against the erstwhile

members

of the governing body of the association'

Page 61 of76
ffiHARTRA
ffiG URUGI1AM Complaint No. 2785 of 2021

ix. To order the respondents (R1 to R7), jointty ond severally, to refund
to Rl1 the entire monies paid by Rl1 to DHBVN in the form of
penalties for its failure to install a permanent ele'ctriciet connection
for the subiect project and also excess monies paid by R11 on account
of higher billing rate for a temporary connection, with a direction to
keep the monies deposited with this authority in an interest bearing
deposit for and on behalf of R77, until such time R11 is handed over
to a duly elected body of resident owners.

77. The complainant has alleged that R11 is paying a penalty of

approximately Rs. 1 lac Re1,pg1$ for supplying electricity using a
t't--i q* i..
temporary connection. The ". tttzflr
3-years period would amount to
;* ,j
Rs' 36 lacs' 3'$r t;ts 'r -

72.

\ r ry. ::. iaa

73. In response to this, tfre t"_ru_:& "
no. L to 7 submitted
_?rr[ ,f*_r-tiftt
that they have ,ppti,ihu#.rlctriL,ry o"irr;int,ir{'ana for which
they are
pursuing. The authority is of the view it is the responsibility of the
respondent to provide electricity connection and it is to be
followed till
permanent electricity connection is made available. The
responsibility
shall have to be discharged by the promoter to make arrangement
of
electricity supply on the same rate as are charged by the DHBVN
and

Page 62 of76
ffiHARERA
ffi.ouRuGtlRt'lt Complaint No. 2785 of 2021,

penalty/surcharge, cost of diesel for providing electricity through

generators on account of the temporary electricity connection (which is

not sufficient to bear the load of the society) etc., if any, shall be borne

by the promoter.

74. The complainant has not given any details as what refund are to be
made to M/s Victory Condominium Owners Welfare Association i.e.,

R11, the monies paid by R1L to DHBVN in the form of penalties for its

failure to install a permanent"eiectricity

"'l'
connection for the subject

project and also excess monies paid by R1l. on account of higher billing

75.

. ri: ,=i *,i'=, 'ti;.

_
- ;:

of resident owneri, it is observ'ed'by_thb,authority that newly elected

body has taken oyer and,,t\e. amount'due on this account against the
a t +
, :.

promoter payable to nf f sn:rit Uu priJ by the p.ofuot.r after the receipt

of report and accepted by the authority within 3 months.

X. To order the respondents (R1 to R7), iointly and severally, to

refund to Rt1 the entire monies spent on repairs and
maintenance by R11 till date, with a direction to keep the
monies deposited with this authority in an interest-bearing

Page 63 of76
ffiHARERA
ffieunllcttAM Complaint No. 2785 of 2021

deposit for and on behalf of R11, until such time R11 is handed
over to a duly elected body of resident owners.

7 6. The complainant has not given any details in this regard accordingly the

inquiry officer / auditing firm/ fact finding team appointed under para
28 may also workout the quantum of any money on account of repairs

and maintenance by R11 till date if payable by the promoter. If any such
amount is payable by the oy1,:_ffii::#. shall be paid by the promoter

within 3 months after ..:9*[ report and accepted by the

1r$ {;#'{! #' &%
authority. ... iL j*oorl-=-":'u",,
..S. ,r . . .'

xi.
'
To order the rdspondenti (Rl"T" RZ), iointly and severally, to
t to Rfl' entiffi,fi$,H s sftent on purchasing water
from an exffigt roy",g,yi,l , or:.FB$ to keep the monies
deposite, this authlrt.y in;an interest-bearing deposit
tH
for and on nffitibrnrl,
\ ,.tt;ffi
uirtilii,reh ;.\s"J
tiriie R11 is handed over to
:i U M -*Ee
a dury erected -q* si}ffiyffifls
77. The complainantJra.i,nfot,,Eiten pV aetails as on what basis the refund
4* -:*sdt-J' ri
to R11 is admissible'in'resp#t of$irionie$ "q$flt on purchasing water
from external source. No details have,been givenregarding the monies
pl
spent by R11 in this regard. The promoter is responsible to provide

permanent water supply arrangement and same is chargeable as per

HUDA/ MCG rates.

78. The inquiry officer/ auditingfirm/ fact finding team appointed under
para 28 may also workout this amount if payable by the promoter. The

respondent promoter version be also taken into consideration.

Page 64 of76
ffiHARERA
ffi-eunuEurrir Complaint No. 2785 of 2021

Regarding directions to keep the monies deposited with this authority

in an interest bearing deposit for and on behalf of R11, until such time

R11 is handed over to a duly elected body of resident owners, it is

observed by the authority that newly elected body has taken over and

the amount due on this account if any against the promoter payable to

R11 shall be paid by the promoter after the receipt of report and

accepted by the authority wilhin,3.tnonths.

xii. To order the responaintJ',(Bl

" }i'ii

resident e',rdirection, to keep the monies

deposited ihtbrest-bearing deposit
for and on Q:en*hfi of R!-{r,,gntil;!fr'ttch tifufb 11 is handed over to
1. '..::.:: :i
t|,,;t*
= :i
a duly electbfiEb''bay, br iesident ownefs- ,,

.. ,il,lr, , i ,-,t,,
7g. The complainant hq's,unrit.$iven any cggent reason for this relief as why
', il i=l"
to refund to R11 atleas[ fifry'percent of the CAM charges collected by

R11 till date from,th,,6.re-q=ldent owners. Ngwly-,, elected governing body

, +1, ' fu .r.0., '.ii
has already taken pVgr therfqnctioningr;19,f:'the M/s Victory Valley

Condominium Ordnens
, Welfare elsocfation'aiid there is no reason as to
_"h.".
";;;_ + I

why to keep this monies deposited with the authority.

xiii. To order the respondents (R1 to R10) to convey/formally

handover all the common areas including the three
community buildings to R11

Page 65 of76
ffiHARERA
ffiGuIUGRAM Complaint No. 2785 of 2027

80. The discussion on common area have been given on pre-pages. The

common areas are defined in the section 3(0 of the Haryana Apartment

Ownership Act, 1983 which provides as under:

3A "common areas and facilities" unless otherwise provided in the

declaration or lawful amendments thereto, means,-
t1) the land on which the building is located;
(2) the foundations, columns, girders, beams, supports, main walls,
roofs, halls, corridors lobbiet stafrs, stair ways, fire escapes and
e ntrance s and exifs,.of. the \1q.il ding ;

(3) the basemen gardens, parking area and

storage spaces;
(4) The premises. nitors or persons employedfor
management of thb Propyerfli;
(5) installation oY cbhiraii s;efuiili sich,o, po*rr, light, gas, hot and
cold water, heating, refrigeration, air conditioning and
incinergting;
(6) the elevators, tanks, pumps, motors, fans, compressors, ducts
and in general all apparatus and installations existing for
common use;
(7) such conilinynitlt'aid comd,grcial iacilities as may be
provided.foi tn tlie ddglal
. ,.i! , r lrtit lL I ,.
(8) -.!
all other parti ofuthe property nec,issary or convenient to its
existing maintenaiicegnd safety or normally in common use;

81. The definition of common areas and facilities is dependent on the

amehdrnentthbreto*ls $er above definition given
declaration or lawful ,.I:

in the Apartment Ownership Act, L9B3 which commences with the

words "common areas and facilities" unless otherwise provided in the

declaration or lawful amendments thereto. Accordingly, the common

areas are declared in the deed of declaration filed by the promoter

within specified period after obtaining occupation certificate. The

complainant has not specifically mentioned as which common area as

Page 66 of76
 HAl?Tl?A
GUI?UGRAM Complaint No. 2785 of 202L

declared in the deed of declaration has not been handed over to

respondent R11 i.e., M/s Victory Valley Condominium Owners Welfare

Association.

82, Further as per 3t0(7) it is provided that such community and

commercial facilities as may be provided for in the declaration are part

of the common areas and facilities and it is quite clear that it is left to

the promoter to declare ttre cpipffffiiniW and commercial facilities in the

". , ,;,, 4t'?l*
declaration filed at the time 'l of declaration.

83. Although after coming=io$ fptq" oJihe Real Estate (Regulation and

-
1*' ';r, "'?r'i

changed regarding common areels b,.11,! keepi"n$in view the fact that the
a. ,:t:, r!
ill
license for this Oiq"T was Sianteafmuch bbfurd coming into force of
the Real Estate Begutltion
.,". and Development) Act, 201.6 hence the

common areas in this,i)r,qliip!.segmt io Ui, gove]ned by the provisions of

the Haryana Development-arh-Hildiition of Urban Areas Act, 1975 and

Rules made ther$ uldgi*affi*$rciiisidnq-.of-tlhS Haryana Apartment

.M .#,: fu ry !, :\__#,u_ u I T
Ownership Act, 1983. Evep thg Tgwn and Couqtr;z Planning Department
'. I :. 'i
':
_.t

Government of Uar/anh'vide memo no. Miic-2295/2021/1775 dated

25.07.2021 issued policy directions under section 83[1) read with its

proviso of the Act of 20L6, regarding treatment of community and

commercial facilities falling in Iicense colonies as under:

B. Treatment of community and commercial facilities falling in

licensed colonies: ln order to resolve the situation arising out of
conflicting defi.nition of common areas in the REM Act, 2076, vis-d-
vis the Haryana Apartment Ownership Act, 7983, for all intents and

Page67 of76
 HARTRA
ffiGURUGI?AM Complaint No. 2785 of 2021,

purposes, the common areas shall be governed by the definition as

provided under the special Act of 1983 ibid in force in the state since
28,09.1983 and Rules of 1987 framed thereunder. Any contradictory
provision/ definition an existing in the REM Act 2016 shall be
considered to be redundantfor all facts and purposes.

84, It was submitted by the complainant that there are three community

sites in the subject project namely community building - I; community

building - II and community building - III which have been mentioned
in the deed of declaration as: recreation facility/club-1, recreation
5
f^^.il.ir--l-I--I- li";.
facility /club-llrr---r
and recreatioh I i '
tub-lll having an area of 910.719

sq.mtrs.; 37 0.Z53sq.mtrs: .mtrs. respectively. The FAR

t
lr

for these communitu,H'iiffi med out of the available

/sanctioned FA ity hereby make a

tli
reference of the matter to the DirectotrrT Hnd Country Planning
.:. : ,; .;, , i
Department, Haryana, Chandigarh foi givin$ clarification in this regard

whether community building can be or shall be handed over to the

association of allottees w.rr,t the sfu-ffifiioject, particularly in light of
fact where such community,buildings have been constructed out of

sanctioned FAR. i ::: 'rrir ':' : :ri

,il
85. The complainant ha5 notgiven.ahy.detailS'jsto, what common facilities

transferrable to resident welfare association have not been developed

by the promoter and mentioned in the deed of declaration.

86. The authority hereby directs the promoter to transfer the common
areas and facilities as per the deed of declaration filed under the

provisions of the Haryana Apartment ownership Act, 1983 and the

"

Page 68 of76
ffiHARERA
ffi. GuRUGRAM Complaint No. 2785 of Z02L

rules and bye-laws made thereunder, within one month if some or all of

these have not been transferred earlier to the M/s Victory Valley

Condominium Owners Welfare Association.

xiv. To order the respondents (R1 to R7) to allocate at least 35 sqm

of usable parking space for two independent car parking as
per the sanctioned plan.

87. As per the statement of account as gn 15J,L.201,7 in respr:ct of the unit

of complainant, parking chaiges ofiili. Z Lac have been shown to have
',, .' ,,, l

paid to the promoter. The complainant in his complaint submitted that

the complainant discovered to her shock and surprise that two parking

spaces allocated for the apartment oitf,. complainant is also violative

of the sanctioned plan, which provides for 35 sqm of parking space in

the basement. Uncler the Haryana Building Code this space should be

1.5 equivalent car space (ECS), i,e., 48 sqm, one ECS being 32 sqm for

basement. Be that as it may, ih. r.rpondents have not erven provided

sanctioned 35 sqm of space in that the two parking spaces are one

behind the other in a constricted space between foundation pillars such

one car cannot be removed unless the other is removed first. Parking

the car in the constricted space getting in and out ol the car is a

cumbersome experience every time.

BB. The authority after consulting department of town and country

planning observes that to meet the parking requirements, a general

principal of making provision @ 1.5 times of main dwelling units is

Page 69 of76
ffiHARERA
ffieunuenAM Complaint No. 2785 of 2021,

required to be provided. Further for the purpose of calculations area

norms for each ECS/ PCU have been prescribed depending upon the

location of purposed parking as the same is provided at basement level,

stilt level or even at open surface level with a further proviso that at
least 50 percent parking spaces shall be covered parking spaces. The

norm for basement parking for 1 ECS is 35 sqm (at the time of approval

of this projectJ, 30 sqm for L nCS for stilt parking and 25 sqm for 1 ECS

parking art surface ground level, Ih the BBA there is no mention of area

of car parking. Only two car parki.ng'iprAops have been alleged to have
Ft
been allotted to the ao'rnfl{inahtr;Ttlrrl ucJiffiinant failed to produce

copy of the allotment letter/BBA is riginal allottee where

the size of car paikihg space has be ecr ed. rom a similar builder
;
tIl ered that number of

parking spaces are mentiot JIZC,

89.

calculation of requirements in the basement which include

Individual parking space is never calculated on the basis of equivalent

car space which is a concept use for gross parking requirements taken

collectively. Accordingly, the authority observes that there is no

ambiguity in allotment of parking space. The parking space allotted is

an integral attachment with the unit and it cannot be treated in isolation

PageTO of76
 HARERA
GUI?UGRAM Complaint No, 2785 of 2021,

or sold separately. There is no violation of the sanctioned plan in

allotment of parking space to the complainant. Although the problem

faced by the complainant is genuine and if some solution could be

worked out to the satisfaction of complainant it would be a welcome

step. Keeping in view the individual problem of the allottee the resident

welfare association mayaccommodate him, and alternate parking space

maY be allotted to her' ,r**"' ffim*

90. The complainant has not gifffiffitaits regarding any variation in
the parking provided in the sanctioned plans and parl<ings actually
provided in the baqrement Uand on
on iut ffiegarding saleability of

parkings in the basement in the projects where licenses were issued

into;force of Act, 2016;

before coming intorfo{ce 2016trthe hut ah:eady
authoiity has
the authority already decided
-:. l;': t,,,
:a ,'
,

that the sale of suc*parkingi shalliU. govi*ned as per provisions of

builder buyer ,*...*ant., . :1

xv. To penalize the resp6ndents,(R+tb R7) for offencers committed

by them under section 59, 60, and 61 of the Act and earmark a
percentage of the penalties as deemed fit by this authority for
the benefit bf "the- subiect
--1,!
proiect,
- -L --

9t. This issue has been dealt in detail in relief no. 1 above.

H. Directions of the authority

92. Hence, the authority hereby passes this order and issues the following

directions under section 37 of the Act to ensure compliance of

PageT1- of76
ffiHARERA
#-GllRuenArrl Complaint No. 2785 of 2021

obligations cast upon the promoter as per the function entrusted to the

authority under section 3a[fl:

i. The respondent promoters are in violation of section 3 of the Act

of 2Ot6 which is punishable under section 59(1) of the Act of 201,6

and accordingly the authority imposes a penalty of Rs. 25 lacs on

the promoters' company.

The authority directs ents' promoters to submit an

application for regis at part of the project which is

registrable as per present Haryana Rules, 2017 within one month,

;--
failing which, the authorised offiE. of the authority is directed

file zr complaint before the magistrate of competent jurisdiction for

59t2) of thd Act of 201.6.

iii. der pany to submit record

DPI within one month.

Furthermore, an affi itted by the respondent no.

3, w'ho is the Chief 0perating Officer of the promoter's company

and responsible for running day to day affairs of the company or in

caser, respondent no. 3 is not the Chie,f Operating Officer, then any

authorized representative/key managerial functionary, duly

authorized by the Board in its meeting to submit the requisite

information required for registration.

iv. The authority directs that the account of the respondents'

promoters in which the sale consideration of the already sold unit

Page 72 of 7 6
ffiHARERA
t#ffi-eunucRRHll Complaint No. 2785 of 2021,

is being received is freezed till further orders of this authority and

the promoters are restrained to withdraw any amount from the

said account.

v. The authority ordered an enquiry under section 35[1] to be

instituted in the affairs of the respondents'promoters with regard

to the issues as mentioned in para 28, 63,75, and 76 of this order

and also other issues enquiry officer specifically in

paras where determi ut various reliefs has been
discussed. The M , Chartered Accountants,
804, Bth floor, mba Road, New Delhi

-110001, an said inquiry/ audit/

fact finding firm entrusted this

task shall al roject whether some

diversions of The authority further

directs the inquiry firm/ fact finding team to

submit its faCt-fincling report to the authority within two months.

The remune;ation pfrrlt bp,,paVqbl.,tp,enquiry officer / auditing

,t. .i, fIi.I.:= +jl'... ,ili,s'
firm/fact findifg t.i- ai n*eabt thb aiitr,''biiry for conducting this
inquiry. Furthermore, the report as submitted by the inquiry
officer/auditing firm/ fact finding team be examined by the
planning branch of this authority and if violations are noticed, the

matter be placed before the authority for initiating further action

as per provisions of law. The copy of the said report may also be

Page73 of76
ffiHARERA
ffiGURUGRAM complaint No. 2785 of 2027

sent to the complainant and respondent no. 11 with a liberty to

them to join as party in the penal proceedings against the

promoters. The promoter shall discharge its liability within 3
months of receiving the report and acceptance by the authority.

vi. The respondent promoters are directed to clear all the pending

dues as are ascertained by the inquiry officer/ auditing firm within

1 month of receipt of report after acceptance bY the

authority.

vii. to comply with provisions

of 2016. Accordingly,

the respondents'rpromOters are also directed to settle all dues in

view of the provisions contained in serction 11,(4)[9) and 11(4)[h)

1-6 and an affidavit wit.h respect to the settled dues

of the Act of 20L6

of the authority within 3

viii. The authori

cost.of incomplete {evgf ppment yrorkf,lgd payment of dues to the
' {r ^'-E* I ' ,'. i
resident welfare aisoi"iation in a Separate'RERA account to be

opened while registering the project.

ix. The authority directs the respondents'promoters to complete the

subject project and obtain the completion certificate from the

competent authority w.r.t the subject project. The respondents'

promoters are also directed declare the timeline for completion of

Page74 of76
 HARERA
GUl?UOt?AM Complaint No. 2785 of 2021.

subject project nri obtaining the completion certificate from the

competent auth

x. The authority d rects the respondents' promoters to transfer the

common areas facilities as per the deed of declaration filed

under the pro ions of the Haryana Apartment Ownership Act,

1983 and Rules d byelaws made thereunder, within one month

if some or all of n transferred earlier to the M/s

Victory Valley ndomi ers Welfare Association.

xi. The authority anning branch to supply copy

of the enquiry rport to the complainant and respondents within

ts receipts in the authority for inviting their

one month of its
objections if*E-; 'vvithin one month thereafter and authority mzry
,:.
thereafter accel ts the reportwith or without modific:ations.
.i,:

xii. The directions ven in the paras where reliefs have been discussed

and not found :. i ,

e also complied with by all
t t! r !!r r rr

concerned.

93. The directions of u" ,,l4hp[ity, which. ar,,e ildependent of the fact-
f fi .: i '" i i ",.1"'f i+i :'."'"' . '
finding inquiry strill b e' Carried' out'immediately/withi n th e tim e fram e

as provided in the di tions and such directions of the authority which

are dependent on e fact-finding inquiry will be taken up after the

inquiry report is eived and accepted by the authority either with

modifications or wi out modifications. The copy of the same shall be

supplied to both parties and the matter be taken up thereafter

PageTS of76
 l-lARERi
ffi. eunUG'ltAM Conrplaint No. 2785 of :2021 i

,rr-r.:ilr.t.iingl'y ancl the clates r-rf hearing irr [his t'egarcI u'rill be notifiec]i in lhc

,.lttt: t-tl,tt'sc'.

()4^ (,ontltlitittl- statlds clisposed of.

q5, Filr he cottsigned to registry,

/.r\! - rr tr t/r-^*)
',,r,'J
[Viiry Kunrar Goyal) {'[lr. K.l{. Khandelwal}
(lhairman
Mer:lber
Ha rya n a Re al Esta te s.,( euf{ 1"o1y A,r-r th o ri ty, Cu t'u gra m

11.03.202?

.t.lir il t!, ''

lil,lti, ii

ffi Page )',i r:; 'r S