India: Doctrine Of Relation Back Will Not Apply In Case Application For Oc Made Before Rera Coming Into Force: Assam Reat

The Appellant filed an appeal before Hon'ble AREAT challenging the Impugned Order inter alia on the following grounds:

1. Application for OC was made to the GMDA on December 17, 2016 and the Appellant has not received any letter regarding any defect or any inspection of the project within 21 (Twenty One) days from the date of application being made in view of Section 11(b) of Guwahati Building Construction (Regulation) Act, 2010 ("Building Act, 2010"). Thus, the OC must be deemed to have been granted.
2. Shortcomings pointed out by the GMDA having been rectified and that the proposal for OC having been approved by the authority, as indicated in the GMDA's letter dated February 26, 2021, and the direction to deposit the regularisation fees having been duly complied with within prescribed time, OC dated June 22, 2021 issued in favour of the Appellant must relate back as having taken force with effect from the date of application i.e., December 17, 2016.
3. Retrospective application of OC w.e.f. December 17, 2016 would find support from the "Doctrine of Relation Back", which postulates that an act performed at a later time may be deemed to have occurred at previous time. The effect of OC is to be reckoned from December 17, 2016, and the first proviso to sub-section (1) of Section 3 of the Act will have no applicability as far as the Appellant is concerned.
4. All transactions relating to the project under Phase-I, including the deemed approval for occupation were prior in time to the date when said Section 3 of the Act was put into force i.e., May 01, 2017, therefore, the Appellant could not have been subjected to or brought within the purview of the Act. Hence, there was no requirement for the Appellant to make application to the RERA Assam for registration of the project, let alone far from being imposed with any penalty.

The RERA Assam resisted the appeal inter alia on the following grounds:

1. Due to apparent shortcomings in the application for OC dated December 17, 2016, Appellant is not entitled to the benefit of deemed approval as per Section 11(b) of Building Act, 2010.
2. Referring to said Section 11(b) and, more particularly, "on receipt of the completion certificate"- it was contended that the completion certificate ("CC") to be submitted by the owner must conform to the manner, method and form in terms of Section 11 (a) and those prescribed in the GBCBL. Referring to Byelaw 14, it was shown that the CC has to be submitted by the owner in Form Nos. 16, 17, 18, 19 and 27. Reference was made to letter dated March 16, 2022 addressed by GMDA, to authority, to show that Form Nos. 18 and 19 were not signed by Construction Engineer and Structural Engineer respectively. Referring to Section 11(b) of Building Act 2010, it was contended that CC submitted on December 17, 2016 cannot be deemed to be CC and, consequently, any deemed approval for occupation cannot be read in favour of the Appellant.
3. Application which is incomplete in terms of the particulars required to be furnished, or defective as not being accompanied by the requisite documents, the same cannot give rise to any deemed permission.
4. The project was not executed as per the NOC and approved plan, in that, a number of deviations/changes were there which required consideration before issuance of OC and, in fact, the approval for OC was made subject to deposit of regularization fees of INR 1,26,52,843 (Indian Rupees One Crore Twenty Six Lakh Fifty Two Thousand Eight Hundred and Forty Three only).
5. It was further contended that first proviso to sub-section (1) of Section 3 of Act clearly postulates that a project will fall into the category of 'ongoing project' where construction is ongoing on the date of commencement of the Act and for which CC has not been issued.
6. The project of the Appellant was without an OC on the date of commencement of said Section 3 i.e., May 01, 2017. The OC was obtained by Appellant only on June 22, 2021, which is well after May 01, 2017. Since the Appellant failed to make application before RERA Assam for registration of its ongoing project within the mandatory next 3 (Three) month period, that is by August 01, 2017, as such, the imposition of penalty on the Appellant in terms of Section 59 of the Act is legal and justified.
7. As regards Doctrine of Relation Back, it was contended that doctrine has no application in the facts and circumstances of the case, more so, when there is no judicial order to back the said doctrine in favour of the Appellant. It was contended that it is to be kept in mind that the object and purpose for which the doctrine is created, and such legal fiction cannot be extended beyond the scope and language by which it is created, inasmuch as, a deeming provision cannot be pushed to such an extent so as to result in an anomalous or absurd position.