Order Complaint No. 274 Of 2023

BEFORE TELANGANA STATE REAL ESTATE REGULATORY AUTHORITY
[Under the Real Estate (Regulation and Development) Act, 2016]
COMPLAINT NO.274 OF 2023
1th Day of December 2023
Corum:

Dr. N. Satyanarayana, IAS (Retd.), Hon’ble Chairperson
Sri Laxmi Narayana Jannu, Hon’ble Member
Sri K. Srinivasa Rao, Hon’ble Member

Sri Farhad Gew Irani
Sri Rustom Gew Irani

…Complainant

Versus
M/s Sri Sai Kakatiya Developers rep by Managing Partner Sri
Kommuri Pratap Reddy
…Respondent
The present matter filed by the Complainant herein came up for
hearing on 03.10.2023, 31.10.2023 and on 21.11.2023 before this Authority
in the presence of Complainants present in person, Adv

V Srinivas on

behalf of the Respondent and upon hearing the arguments of the party, this
Authority passes the following ORDER:
2.

The present Complaint has been filed under Section 31 of the Real

Estate (Regulation and Development) Act, 2016 (hereinafter referred to as
the “RERD Act”) read with Rule 34(1) of the Telangana Real Estate
(Regulation and Development) Rules, 2017 (hereinafter referred to as the
“Rules”) seeking directions from this Authority to take action against the
Respondent.
A. Facts of the Complaint:
3.

The complainants, FarhadGew Irani, ShapurGew Irani (currently

indisposed), and Rustom Gew Irani, jointly own the subject property. Acting
on behalf of their sick brother ShapurGew Irani, the complainants allege
that they are the joint landowners.
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4.

The respondent, M/s Sri Sai Kakatiya Developers, represented by

Managing Partner Sri Kommuri Pratap Reddy, entered into a Development
Agreement Doct. No.22222 with the complainants on 06-10-2018, for the
construction of a Cellar+5 floors commercial complex building. The agreedupon timeline for completion was 2 years with an extended grace period of 4
months and an additional 6 months due to the Covid-19 pandemic, as
mandated by the central government. However, as of 23-02-2023, the
respondent failed to secure permission for Cellar+5 floors, obtaining
approval only for Cellar+4 floors.
5.

Allegations include the failure to complete construction within the

stipulated time, non-compliance with Retrofitting works recommended by
NIT Warangal, and failure to deposit 70% of the amount realized by the
promoter in a separate account, as required by Section (4), sub-clause (D) of
clause (1) of sub-section (2).
6.

The complainant asserts that the existing structures of Cellar+G+2

floors in A-Block, B-Block & C-Block have not undergone complete
Retrofitting works per the NIT Warangal directive.
B. Relief(s) Sought:
7.

The complainant requests the following reliefs:

a. The respondent is directed to strictly adhere to the Development
Agreement and deliver the fully finished constructed area of 1,28,800 sft,
inclusive of common areas and parking, immediately.
b. In case permission for Cellar+5 floors is not obtained, the respondent
shall hand over the entitlement of 1,28,800 sft in a 4-floor area (G+3 floors).
c. The complainant seeks compensation of Rs.40/- per sft per month
towards rent for the aforementioned area from the date of the complaint.
C. Interim Order:
8.

The complainant seeks the following interim orders:

a. Immediate cessation of the respondent's sale of units in the commercial
complex under construction.

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b. Payment of Rs.40/- per sft per month as rental compensation for the
complainant's entitlement area from the date of the complaint until further
orders.
D. REPLY FILED BY THE RESPONDENT
9.

The

Respondent

submits

that

the

petitioners

entered

into

a

Development Agreement dated 25.02.2002 with the Respondent herein for
the development of the property bearing Municipal old Nos. 1/64 to 1/174-3
corresponding to New No.s 1-3-172 to 185 with an apparent land area of
9600 Sq. yards, comprising a compact block situated at Main Road, Kazipet,
Hanumakonda Mandal, Warangal city, for the construction of a commercial
building comprising shops and office spaces.
10.

The Respondent avers that pursuant to the said Development

Agreement dated 25.02.2002, building permission was obtained from
Warangal Municipal Corporation vide permit no.27 in File no. ROP
No.Z1/4540/2002 dated 19.04.2002, allowing the construction of a building
comprising a cellar, ground floor, first floor, and second floor. The
Respondent commenced construction of the cellar for parking and the
ground floor comprising shops in 11.

Block A, B, and C, as well as a

part of D. The construction in blocks E, F, and G was about to commence.
12.

It is emphasized that the Petitioners and Respondents agreed to share

the built-up area in the ratio of 45:55% on the ground floor and 40:60% on
the first and second floors, respectively. The Complainants and Respondents
jointly sold 76 out of 85 shops in Block A, B, and C, with the sale proceeds
duly received by both parties. Notably, the Petitioners received a sale price
exceeding their entitlement of 45% in the sale proceeds of 76 shops.
13.

Before the development of the subject land, an old building with shops

existed, which were let out by the Petitioners to tenants. The Petitioners
undertook to ensure the vacation of such shops by the tenants, but failed to
do so. Legal proceedings were initiated against the Petitioners, resulting in
the need to obtain orders for a change of land use. The Respondents, at the
request of the Petitioners, applied for and obtained necessary orders for the
conversion of land use for commercial purposes.

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14.

Subsequently, after various delays, the Petitioners executed and

registered a Development Agreement cum Irrevocable General Power of
Attorney on 06.10.2018, acknowledging the sale of 76 shops and agreeing to
obtain revised permission for the construction of two upper floors in Block
A, B, and C. The Respondents assert that due to litigation initiated by Mr.
Sadanandam and others, construction was halted for a period. The
Respondents engaged NIT Warangal to assess the stability of the building,
and after receiving stability certificates, submitted plans for approval.
15.

The Respondents refute the Petitioners' claim of delay in construction,

highlighting that possession of Block D was not delivered by the Petitioners,
hindering progress. The Petitioners' failure to vacate tenants in possession
further delayed the construction.
16.

In light of the above, the Respondents argue that the nature of the

complaint is beyond the summary jurisdiction of the RERA Act, and as
landowners, the Petitioners cannot invoke the jurisdiction of this Authority
for reliefs falling outside its purview. The Respondents further assert their
substantial investment in the project and request the dismissal of the
petition with exemplary costs. Additionally, the Respondents seek an order
directing the Petitioners to take steps for the eviction of tenants in Block D
and deliver possession to them in the interest of justice.
E. Hearing conducted:
17.

On 03.10.2023, a hearing was scheduled; however, no representative

from either party appeared, despite the notice issued on 27.09.2023. The
matter was adjourned to 31.10.2023. Subsequently, on 31.10.2023,
representatives from both parties were present. During the proceedings, the
Complainant reiterated the contentions raised in the original complaint. In
response, the Respondent submitted a Vakalatnama and requested
additional time to file a reply. Consequently, the hearing was adjourned to
21.11.2023.
18.

On 21.11.2023, there was no representation on behalf of the

complainant. However, the Respondent submitted its averments, refuting
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the allegations made by the complainant. The Respondent asserted that the
nature of the complaint involves complex issues beyond the jurisdiction of
the Real Estate Regulatory Authority (RERA) and questioned the jurisdiction
of this Authority in matters involving landowners. Additionally, it was
argued that as per Section 2(zk) of the Real Estate (Regulation and
Development) Act, 2016, the petitioners should be considered as Promoters.
Therefore, it was contended that they cannot file a complaint under RERA,
and this Authority lacks jurisdiction over the present matter.
F. Observations made by the Authority:
19.

The authority observed the following finding, is as follow:

1. Whether the Complainant can be considered an aggrieved person
under

Section

31

of

the

Real

Estate

(Regulation

and

Development) Act of 2016 ?
20.

The Authority observes that the complainants are the landowners of

the relevant project. According to the Development Agreement dated
06.11.2018 executed between the complainants and Respondents, clause 11
of the said agreement explicitly states that sales were jointly conducted by
both parties in blocks A, B, and C. The registrations were made jointly by
the landowners, and the sale proceeds were shared based on mutual
consent. Consequently, from the complaint and the objections filed by the
Respondent, it is evident that the complainant is neither a purchaser nor an
allottee

under

the

provisions

of

the

Real

Estate

(Regulation

and

Development) Act. As per the said agreement, it clearly designates both
parties as promoters, and when the landowner is also one of the causes to
construct the project, he shall also be treated as a promoter as per Section
2(zk) of the RE(R&D) Act of 2016.
21.

In this context, the Complainant has failed to furnish the Authority

with any supporting evidence or an authorization letter establishing their
qualification as an aggrieved person and not as a promoter in accordance
with the definition outlined in Section 31 of the RERD Act. Section 31 is
reproduced herein for reference:

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(1) Any aggrieved person may file a complaint with the Authority or
the adjudicating officer, as the case may be, for any violation or
contravention of the provisions of this Act or the rules and regulations
made thereunder against any promoter, allottee, or real estate agent,
as the case may be.
Explanation. —For the purpose of this sub-section, "person" shall
include the association of allottees or any voluntary consumer
association registered under any law for the time being in force.
22.

In light of the aforementioned perspective, the Authority concludes

that the present complaint is not maintainable, and accordingly, it is
dismissed.

Sd/Sri K. Srinivasa Rao,
Hon'ble Member,
TS RERA

Sd/Sri Laxmi Narayana Jannu,
Hon'ble Member,
TS RERA

Sd/Dr. N. Satyanarayana, IAS (Retd.),
Hon'ble Chairperson,
TS RERA

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