AI Structured Summary
Not yet generated for this judgment
Judgment
A complaint was filed in FORM ‘M’ on 08.09.2022 by M/s Primewalk Infra Pvt. Ltd. earlier known as ‘Angad Estates Pvt. Ltd.’ (hereinafter referred to as ‘Complainant’) through Mr. Jagjot Singh, Director, stating that the Complainant had purchased two shops in the project “DLF Galleria” located at Mayur Vihar, New Delhi-110091 being developed by M/s Paliwal Developers Ltd. (hereinafter referred to as 'Respondent 1') but till date possession has not been delivered to the Complainant.
The Complainant has further alleged that the Respondent 1 has violated the sanctioned building plans and other norms. And, therefore did not approach Municipal Corporation of Delhi (hereinafter referred to as ‘MCD’), for issue of the completion certificate.
The submissions made by the Complainant are summarized as under:
The Respondent 1 has failed to complete the project as per sanctioned building plans and obtain the Completion Certificate from the MCD.
Since, Respondent 1 did not have the completion certificate as on 1.05.2017 for the subject project, as per the Real Estate (Regulations and Development) Act, 2016 (hereinafter referred to as RE (RD) Act or the Act), the project was an ongoing project on the date of commencement of the Act.
The Respondent 1 has failed to deliver the shops of promised size as provided in the Builder Buyer agreement (BBA) to the Complainant.
The Respondent 1 is selling shops without registering the project with the Real Estate Regulatory Authority (hereinafter referred as ‘RERA’), NCT of Delhi in violation of section 3 of the Act.
The application of completion filed by Respondents 1 was for seeking occupancy certificate and not the completion certificate.
The Respondent 1 applied for completion certificate, but was given occupancy certificate on 26.06.2008.
The ‘Occupancy Certificate’ issued is not the ‘Completion Certificate’ as per section 2(q) of the Act.
Feeling aggrieved the Complainant has sought following reliefs:
to direct the Respondant 1 to register the project with RERA, NCT of Delhi.
to direct the Respondant 1 to pay rent to the Complainant, calculated @ Rs. 100/-per sq. ft. and Rs. 1,47,100/- per month from July 2009 till August 2022 along with simple interest calculated @ 18% per annum as per provisions of section 69 of the Act.
Direct Respondent 1 to furnish the carpet area, super area and calculations for the common area, to justify the area calculations as per the brochures and the initial offer and for cross-checking with the sanctioned building plans.
Direct the Respondents 2 & 3 to waive of all the dues, inter-alia, maintenance, property tax etc. due to non-delivery of shops.
Direct the Respondent 1 to refund to the Complainant, the sale price of the said shops prevailing at the time of purchase along with interest @ 12% per annum.
Give any other relief that this Hon'ble Authority deems fit and proper in the facts and circumstances.
A preliminary hearing in the case was held on 19.10.2022 and notice of complaint was issued to Respondents 1 to 4 on 31.10.2022.
The matter was subsequently heard on 24.01.2023, 29.03.2023 and 19.04.2023. Respondent 1 filed reply to the complaint on 27.03.2023 questioning maintainability of the complaint.
In response to the reply, a rejoinder was filed by the Complainant on 17.04.2023.
The written submissions were filed by the Respondent 1 on 25.04.2023 and the Complainant on 27.04.2023. Respondents 2 to 5 did not file any reply to the complaint, though Respondent 5 was present in the court.
We have heard the arguments and perused written submissions filed by the Ld. Counsels for the Complainant and Respondent1 and all other records available on the case file.
This Authority considers it appropriate to first deal with the issue regarding the maintainability of the present complaint without going into legal and factual issues raised by the Complainant in the complaint.
Respondent 1 has raised the issue of maintainability of the complaint on the following grounds:
The subject project was complete in all respects in 2007.
They submitted notice of completion to DDA on 16.04.2007 in the prescribed format.
After examining their request DDA issued ‘Occupancy Certificate’ in respect of subject project on 26.06.2008.
Since, the project was complete and ‘Occupancy Certificate’ (which in fact and effect was ‘Completion Certificate’) was issued much prior to 01.05.2017, i.e. the date of commencement of RE (RD) Act, 2016.
At that time, DDA use to issue only occupation certificates to mark completion of projects and not completion certificates.
Analysis and consideration:
The issue for consideration in this case before us is whether the occupancy certificate issued on 26.06.2008 can be considered as the completion certificate.
Section 3 (1) of the RE (RD) Act, 2016 provides as follows:
“Section 3: Prior registration of real estate project with Real Estate Regulatory Authority.
3.(1) “No promoter shall advertise, market, book, sell or offer for sale, or invite persons to purchase in any manner any plot, apartment or building, as the case may be, in any real estate project or part of it, in any planning area, without registering the real estate project with the Real Estate Regulatory Authority established under this Act:
Provided that projects that are ongoing on the date of commencement of this Act and for which the completion certificate has not been issued, the promoter shall make an application to the Authority for registration of the said project within a period of three months from the date of commencement of this Act:
Provided further that if the Authority thinks necessary, in the interest of allottees, for projects which are developed beyond the planning area but with the requisite permission of the local authority, it may, by order, direct the promoter of such project to register with the Authority, and the provisions of this Act or the rules and regulations made thereunder, shall apply to such projects from that stage of registration.
(2)Notwithstanding anything contained in sub-section (1), no registration of the real estate project shall be required—
(a)where the area of land proposed to be developed does not exceed five hundred square meters or the number of apartments proposed to be developed does not exceed eight inclusive of all phases:
Provided that, if the appropriate Government considers it necessary, it may, reduce the threshold below five hundred square meters or eight apartments, as the case may be, inclusive of all phases, for exemption from registration under this Act;
(b)where the promoter has received completion certificate for a real estate project prior to commencement of this Act;
(c)for the purpose of renovation or repair or re-development which does not involve marketing, advertising selling or new allotment of any apartment, plot or building, as the case may be, under the real estate project.
Explanation. —For the purpose of this section, where the real estate project is to be developed in phases, every such phase shall be considered a stand alone real estate project, and the promoter shall obtain registration under this Act for each phase separately.”
The contention of the Respondent 1 is that the relevant bye-laws governing the construction, development and completion of the subject project in 2007 were the Building Bye-Laws, 1983 of DDA (hereinafter referred as ‘the BBLs 1983’).
The Authority notes that clauses 7.5.1 to 7.6.2 of the said BBLs 1983 relate to the issue of giving ‘Notice of Completion’ and issue of occupancy or completion certificate. The text these clauses is reproduced below for ready reference:
“7.5.1Occupation of building-No person shall occupy or allow any other person to occupy any building or part or a building for any purpose until such building or part has been granted the occupancy certificate.
7.5.2Notice of Completion-Every owner shall have to submit a notice of the building to the Authority regarding completion of the work described in the building permit. The notice of completion shall be submitted by the owner through the licensed Architect/Engineer/supervisor/Group as the case may be who has supervised the construction, the proforma given in Appendix' G' accompanied by three copies of completion plan and the following documents and along with a fee of Rs. 20 :-
1)Copy of lease deed.
2)Copy of sewer connection permission.
3)Clearance from Chief Fire Officer, Delhi.
4)Clearance from Chief Controller of Explosives, Nagpur, as required.
5)Clearance from DESU regarding provision of Transformers / Substations ancillary power supply system etc. are required.
6)Structural stability certificate duly signed by the licensed Architect/Engineer.
7)Certificate from the Lift Manufacturer-as required.
8)Certificate from Air-conditioning Engineer, Manufacturers as required.
7.6Occupancy Certificate -The Authority, on receipt of the notice of completion, shall inspect the work and communicate the sanction or refusal or objections thereto in the proforma given in Appendix 'H' within 60 days from the date of receipt of Notice of Completion. If nothing is communicated within this period, it shall be deemed to have been approved by the Authority for occupation. Where the occupancy certificate is refused, the various reasons shall be quoted for rejecting at the first instance itself.
7.6.1In the case of buildings identified in Bye-law No. 6.2.4.1 the work shall also be subject to the inspection of the Chief Fire Officer, Delhi Fire Service and the occupancy certificate shall be issued by the Authority only after the clearance from the Chief Fire Officer regarding the completion of the work from the fire protection point of view.
7.6.2In cases, where the building scheme requires the clearance of Delhi Urban Arts Com-mission. then the Authority shall issue the occupancy certificates only after getting the clear-ance from Delhi Urban Arts Commission.”
The Respondent 1 argued that they submitted a ‘Notice of Completion’ as per BBLs 1983 to DDA on 16.04.2007 after fulfilling all required formalities. DDA issued ‘Occupancy Certificate’ on 26.06.2008 which at that time certified the completion of the project.
The Respondent 1 submitted following documents in support of their claim:
Copies of Notice of Completion dated 16.04.2007.
Certificate of the Licensed Architect/ Engineer/ Supervisior.
Occupancy Certificate dated 20.06.2008 issued by the Competent Authority i.e. DDA.
A perusal of “Notice of Completion” filed by the Respondent 1 shows that they intimated the Competent Authority i.e DDA about completion of the project on 16.04.2007, which is reproduced below for ready reference:
“Dear Sir,
We hereby give notice that we have completed the erection of the building/ execution of the works in Plot No. 1-B, District Centre situated at Mayur Vihar, New Delhi. In pursuance of sanction granted by the Authority vide File No. F.13(122)2004/ Bldg. Dated 16/6/2005. Permission to occupy or use the building may be granted.”
The “Occupancy Certificate” issued by the DDA carrying file no. F.13(122)/04/Bldg./ dated 26.06.2008 reads as follows:
“With reference to your notice of completion dt. 16.4.07 hereby certify that building as per description below certified plan at plot no. 1-B Block No. Mayur Vihar Pocket ... Scheme District Centre plans were sanctioned vide No. (122)/04/Bldg has been inspected with reference to building bye-laws in respect of the structural safety, hygienic and sanitary conditions inside and in the surroundings and is declared fit for occupation.
The structural stability of the building is based on the certificate given jointly by the owner/architect/structural engineer along with one set of structural drawings, incorporating therein the provisions of structural safety as specified in the relevant prevailing IS Codes/Standards/Guidelines stated in the Government of India Notification bearing No. SO-248(E) dated 21/3/2001. For the fire-safety, the same has been based on the clearance given by the Chief Fire Officer, Government of NCT of Delhi. The DDA shall not have any responsibility for any loss caused to the building from any natural hazard/calamity”
Ld. Counsel for Complainant while admitting that the Respondent 1 had obtained “Occupancy Certificate” much before 1.05.2017, stated that they still require a “Completion Certificate” to mark the completion of the project. He also submitted that the Respondent 1 has deliberately not applied for the completion certificate as the project has not been constructed as per sanctioned building plans.
The Complainant during the course of arguments stated that DDA issues two different certificates one ‘Occupancy Certificat’ under Clause 7.5.2 of the BBLs 1983 and another ‘Completion Certificate’ under clause 8 of 'Instructions and Guidelines for Building Permit and Completion Certificate' attached to BBLs 1983.
The relevant clauses 8 and 9 of the ‘Instructions and Guidelines for the Building Permit and Completion Certificate' state as follows:
“8) (i) Procedure for Obtaining Completion Certificate:
No person shall occupy or allow any other person to occupy any building or part of a building for any purpose until such building or part has been granted the Occupancy Certificate.
Notice of Completion - Every owner shall have to submit a notice of completion of the build-ing to the Authority regarding completion of the work described in the building permit. The notice of completion shall be submitted by the owner through the licensed Architect /Engineer or group, as the case may be, who has supervised the construction, the proforma given in Appendix 'F' and 'G' accompanied by three copies of completion plan and the following documents and along with a fee of Rs. 20/-:
1)Copy of lease-deed.
2)Copy of sewer connection permission.
3)Clearance from Chief Fire Officer, Delhi
4)Clearance from Chief Controller of Explosive, Nagpur, as required.
5)Clearance from DESU regarding provision of Transport / Sub-station / ancillary power supply system etc. as required.
6)Structural Stability Certificate duly signed by the licensed Architect / Engineer.
7)Certificate from the lift Manufacturer, as required.
8)Certificate from Air-conditioning Engineer, Mfg. as required.
ii) Procedure for Processing of issue of Occupancy Certificate:
The Authority on receipt of the notice of completion, shall inspect the work and sanction or refuse an occupancy certificate, in the proforma given in Appendix 'H' within 60 days from the date of receipt of completion certificate, after which period it shall be deemed to have been approved by the Authority for occupation. Where the occupancy certificate is refused the various reasons shall be quoted for rejecting at the first instance itself.”
The heading of Appendix ‘H’ reads as follows.
“APPENDIX-'H'
FORM-II (Bye – Law 7.6) Form of rejection or compliance in respect of Occupancy Certificate”
A bare reading of above clauses makes it amply clear that the terms and words “Occupation Certificate” and “Completion Certificate” have been used interchangeably in the BBLs 1983 that governed the construction and completion of buildings in NCT of Delhi in 2007. A combined reading of all relevant clauses suggests that a ‘Notice of Completion’ at that time had to be submitted for obtaining the occupancy or completion certificate as per Appendix ‘H’ to BBLs 1983.
Further, the definition of "Completion Certificate" as provided under section 2(q) of the RE (RD) Act, 2016 clarifies what a completion certificate means. The text of this clause is reproduced below:
"2(q). "completion certificate" means the completion certificate, or such other certificate, by whatever name called, issued by the competent authority certifying that the real estate project has been developed according to the sanctioned plan, layout plan and specifications, as approved by the competent authority under the local laws."
It is worth noting that the Unified Building Bye-Laws, 2016 notified on 22.03.2016 superseded the BBLs 1983 and subsequent resolutions and amendments. It is evident that for all the buildings and projects in the NCT of Delhi, till the date of notification of the Unified Building Bye-Laws, the certificate which was being issued by the Competent Authority, certifying that a building or project is complete in all respects and competent to be occupied was under the head "Occupancy Certificate" only as per Appendix ‘H’ to BBLs 1983.
We have gone through the details of the occupancy certificate issued to Respondent 1 by the DDA. It clearly shows that as per this certificate, the DDA has certified the construction of the building as per the sanctioned plans. The above discussion makes it abundantly clear that the ‘Occupancy Certificate’ dated 26.08.2008 issued by the competent authority was in line with the local laws prevailing at that point of time, i.e., Building Bye-Laws, 1983 certifying the completion of the said building. The certificate issued by the DDA was termed as “Occupancy Certificate”, as per proforma in Appendix 'H' of Building Bye-Laws, 1983 and the same certified that the project was complete in all respect in 2008.
Since, Respondent 1 received certificate of completion for the project in form of ‘ Occupancy certificate’ much before 01.05.2017 i.e., the date of commencement of the RE (RD) Act, we are of the opinion that we can not adjudicate in the matter. Had the project been ‘an on going project’, even if complete , because of non- receipt of completion certificate, this Authority would have had jurisdiction to interfere and entertain the grievances of the Complainant.
We are of the firm opinion that the project was completed and the completion certificate termed then as occupancy certificate was issued by the Competent Authority for the subject project on 20.06.2008, certifying completion of the building. The Hon'ble Supreme Court in the case M/s Newtech Promoters & Developers vs. State of UP (Civil Appeal No. 6745-6749 of 2021 decided on 11.11.2021 ) has categorically held that the projects already completed and for which the completion certificate has been granted before commencement of the Act, do not come under its fold.
The fact remains that the Respondent 1 received the ‘Completion Certificate’ from the Competent Authority which was then called ‘Occupancy Certificate’ on 26.06.2008 certifying completion of project. Since, this certificate was issued much before the date of commencement of the RE (RD) Act, 2016 i.e., 01.05.2017, the subject project does not come under our purview and hence, no relief can be granted to the Complainant by this Authority. The complaint is dismissed accordingly
No orders as to costs.
File be consigned to Record Room.