Court in Neel Kamal (Supra) said that registration of ongoing project under RERA would be contrary to the

contractual rights established between the promoter and allottee under the agreement for sale executed prior
to registration under RERA. In that sense, the provisions have retrospective or retroactive application. After
assessing, we find that the projects already completed are not in any way affected and, therefore, no vested
or accrued rights are getting affected by RERA. The RERA will apply after getting the project registered. In
that sense, the application of RERA is prospective in nature. What the provisions envisage is that a promoter
of a project which is not complete shall get the project registered under RERA, but, while getting project
registered, promoter is entitled to prescribe a fresh time limit for getting the remaining development work
completed. From the scheme of RERA and the subject case laws cited above, we do not find that first
proviso to Section 3(1) is violative of Article 14 or Article 19(1)(g) of the Constitution of India. The
Parliament is competent to enact a law affecting the antecedent events. In the case of State of Bombay vs.
Vishnu Ramchandra (Supra), the Apex Court observed that the fact that part of the requisites for operation of
the statute were drawn from a time antecedent to its passing did not make the statute retrospective so long as
the action was taken after the Act came into force. The consequences for breach of such obligations under
RERA are prospective in operation. In case ongoing projects, of which completion certificates were not
obtained, were not to be covered under RERA, then there was likelihood of classifications in respect of
undeveloped ongoing project and the new project to be commenced. In view of the material collected by the
Standing Committee and the Select Committee and as discussed on the foor of the Parliament, it was thought
ft that ongoing project shall also be made to be registered under RERA. The Parliament felt the need because
it was noticed that all over the country in large number of projects the allottees did not get possession for
years together. Huge sums of money of the allottees is locked in. Sizable section of allottees had invested
their hard earned money, life savings, borrowed money, money obtained through loan from various financial
institutions with a hope that sooner or later they would get possession of their apartment/fat/unit. There was
no law regulating the real estate sector, development work/obligations of promoter and the allottee.
Therefore, the Parliament considered it to pass a central law on the subject. During the course of hearing, it
was brought to notice that in the State of Maharashtra a law i.e. MOFA on the subject has been in operation.
But MOFA provisions are not akin to regulatory provisions of RERA. 90. The important provisions like
Sections 3 to 19, 40, 59 to 70 and 79 to 80 were notified for operation 71/99 WPST-1118-21.doc from
1/5/2017. RERA law was enacted in the year 2016. The Central Government did not make any haste to
implement these provisions at one and the same time, but the provisions were made applicable thoughtfully
and phase-wise. Considering the scheme of RERA, object and purpose for which it is enacted in the larger
public interest, we do not find that challenge on the ground that it violates rights of the petitioners under
Articles 14 and 19(1)(g) stand to reason. Merely because sale and purchase agreement was entered into by
the promoter prior to coming into force of RERA does not make the application of enactment retrospective
in nature. The RERA was passed because it was felt that several promoters had defaulted and such defaults
had taken place prior to coming into force of RERA. In the affidavit-in- reply, the UOI had stated that in the
State of Maharashtra 12608 ongoing projects have been registered, while 806 new projects have been
registered. This figure itself would justify the registration of ongoing projects for regulating the development
work of such projects.”

It is apparent from the said decision that this Court has held that the Act will only apply after the project has
been registered. Further, it has been held that the Act is prospective in operation. Accordingly, it is apparent
that the Act cannot have any retrospective operation and will only apply to those projects which have been
completed and registered either prior to commencement of the Act or in the case of ongoing projects, the
project or a phase thereof have
been completed and received the occupancy certificate / part occupancy certificate within the window of
three months from the date of commencement of Section (3) of the Act i.e. 1st May, 2017. In the present
case, it is an admitted fact that the Real Estate Project being developed by the Petitioners is an ongoing
project as contemplated under Section 3(1) of the Act. T

he counsel on behalf of the petitioners submitted that it would be illegal, arbitrary unreasonable and
furthermore  unconstitutional that the promoters of ‘on going’ projects be compelled to register their projects
under RERA and thus making the provisions of the Act applicable to the Project (on going) retrospectively
or retroactively. While making the provisions retrospective or retroactive in nature, the RERA fails to take
into account the various agreements already entered into between the promoter and the allottees prior to the
implementation of the Act and the rights and liabilities accruing arising from such agreements. The counsel
submitted that this is contrary to agreements entered into  under the Indian Contract Act and the Transfer of
Property Act. The counsel submitted that the proviso to Section 3(1) needs to be declared as illegal and
unconstitutional as the RERA has failed to provide a reasonable, fair and transparent mechanism by applying
the provisions of the Act retrospectively The learned counsel places reliance on the judgements of the
Kolkata High Court and other courts. With respect to the retrospective applicability of the Act, the counsel
relied on the matter of Badrinarayan Shankar Bhandari  Vs. Omprakash Shankar Bhandari  wherein it was
stated:

“A prospective statute operates forwards from the date of its enactment conferring new rights on parties
without reference to any anterior event, status or characteristic; Retrospective statute, on the other hand,
operates backwards, attaches new consequences, though for the future, but to an event that took place
before the statute was enacted. It takes away vested rights. Substantive benefits which were already obtained
by a party are sought to be taken away because of a legislation being given effect from a date prior to its
enactment. The Rules of Interpretation of Statutes raises a presumption against such retrospective effect
to an enactment.”
In other words, if the Legislature has not expressly or by necessary implication given effect to a statute from
a date prior to its enactment, the Court will not allow retrospective effect being given to a legislation so as to
take away any vested rights that occurred prior.

To provide an example, statutes enacted for regulating succession are ordinarily not applicable to
successions which have already opened, as otherwise the effect will be to divest the estate from persons in
whom it had vested prior to the coming into force of the new statute.

Section 3(1) of RERA restricts a promoter from inter alia advertising, selling or offering to sell any plot,
apartment or building in a real estate project, without registering such real estate project with the Authority.
Section 3(2) of RERA provides exemptions from registration under RERA to certain real estate projects.11

From a review of the orders and judgements passed by the Authorities in the States of Maharashtra, Haryana
and Punjab, it would appear that a recurring question which these Authorities have dealt with from time to
time, has been with respect to the jurisdiction of the Authorities to entertain complaints pertaining to
unregistered projects.

In order to have a holistic view of the matter, it becomes imperative to understand the different kinds of
projects which would remain 'unregistered' under RERA. One such set of projects would of course be those
that have been specifically exempted under Section 3(2), viz. small projects, projects which have received
completion certificates and renovation projects. However, it may be pertinent to note that 'unregistered'
projects would also comprise of real estate projects which were required to be registered under Section 3, but
which have in fact not been registered in violation of the provisions of RERA.