Incomplete Or Defective Real Estate Application Cannot Claim Deemed Registration Under Section 5(2) Of RERA Act: Orissa High Court

"This Court fully concurs with the contention raised that 'application' within the meaning of Section 5 has to be a valid application complete in all respects and free from deficiencies and incomplete or deficient application cannot be treated as a valid application." Orissa High Court recently held that an incomplete or deficient application submitted for real estate project registration cannot invoke the benefit of deemed registration under Section 5(2) of the Real Estate (Regulation and Development) Act, 2016, while also ruling that statutory authorities cannot keep such applications pending indefinitely beyond the mandated thirty-day period.

A bench comprising Justice Sashikanta Mishra observed that while the statutory timeline of thirty days under Section 5 is mandatory, a defective application cannot automatically acquire validity merely due to the administrative inaction or delay of the regulatory authority.

The petitioner company, Vishnu Associates Pvt. Ltd., had received layout plan approval for its housing project named 'Exotica Garden' from the Block Development Officer in 2016. Following the enactment of the Orissa Real Estate (Regulation and Development) Act, 2017, and its corresponding rules, the petitioner submitted an application for project registration before the Odisha Real Estate Regulatory Authority (ORERA) in July 2018. Although ORERA pointed out multiple deficiencies and granted time to cure them, the application was kept pending for over three years before being rejected in October 2021. The petitioner approached the High Court under Articles 226 and 227 of the Constitution of India, challenging the rejection and claiming deemed registration under Section 5(2) of the Act.

The primary question before the court was whether the writ application was maintainable despite the availability of an alternative statutory remedy of appeal under Section 44 of the Act. The court was also called upon to determine whether the deemed registration clause under Section 5(2) applied to a deficient application and whether ORERA was justified in rejecting the registration while approval proceedings remained pending before the District Urban Development Agency (DUDA).

High Court Rejects Alternative Remedy Bar On Pure Questions Of Law

Addressing the preliminary objection regarding maintainability, the court noted that while Section 44 of the Act provides an appellate mechanism before the Real Estate Appellate Tribunal, alternative remedies are not an absolute bar to writ jurisdiction. Relying on settled precedents including Godrej Sara Lee Ltd. v. Assistant Commissioner and Executive Engineer SOUTHCO v. Sitaram Rice Mill, the bench held that since the case involved a pure question of law regarding the interpretation of the deeming provision under Section 5(2), the writ petition was fully maintainable.

Deeming Provision Applies Only To Valid And Complete Applications

Examining the statutory scheme under Section 5 of the Act, the court emphasized that ORERA is mandated to either grant registration or reject the application with reasons within thirty days. The bench observed that the authority possesses no inherent power to suo motu extend this statutory timeline. However, the court firmly rejected the petitioner's contention that failure to reject the application within thirty days results in automatic deemed registration.

"Application Within Meaning Of Section 5 Must Be Defect-Free"

The court held that the term 'application' under Section 5 refers exclusively to a valid application complete in all respects and conforming to the provisions of the Act, Rules, and Regulations. A deficient or incomplete application cannot harvest the benefit of the deeming fiction. "There is no dispute that the application of the petitioner was not defect free and hence, incomplete. Therefore, this Court is of the considered view that the deeming provision under section 5(2) of the Act shall not apply to the petitioner’s application," the bench recorded.

Indefinite Pendency By Regulatory Authorities Deprecatingly Noted

Criticizing the conduct of ORERA and DUDA, the court observed that keeping an application pending for over three years and eventually rejecting it on grounds of delay contravenes the mandatory nature of the statutory timeline. Citing the classic principle laid down in Nazir Ahmad v. King-Emperor and supported by precedents like State of U.P. v. Manbodhan Lal Srivastava and Haridwar Singh v. Bagun Sumbrui, the court reiterated that when a statute prescribes a thing to be done in a particular manner, it must be done in that manner or not at all.

Homebuyers And Promoters Cannot Suffer Due To Inter-Agency Delays

The court noted that the petitioner could not be penalized for failing to produce final approvals when its application remained under active process before DUDA following a government notification issued for regularization. Holding that ORERA acted mechanically without considering that the delay was entirely attributable to administrative sluggishness, the bench quashed the rejection order. Disposing of the writ petition, the High Court directed DUDA to take a final decision on the petitioner's approval application within seven days, granting liberty to approach ORERA afresh thereafter.

Date of Decision: 31 July 2026