M/s Rajeshwari Realty Private Limited vs National Building Construction Corporation Limited & Anr.

PER: SH. ANAND KUMAR, CHAIRPERSON SH. AJAY KUMAR KUHAR, MEMBER

A complaint was filed under section 31 of the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as ‘the RE (RD) Act, 2016’ or ‘the Act’) in FORM ‘M’ on 23.05.2022 by M/s Rajeshwari Realty Private Limited (earlier known as M/s Narendra Impex Limited and hereinafter referred to as ‘the Complainants’) stating that on the basis of Tender No. NBCC/RE/2007/30 dated 17.08.2007 issued by the National Building Construction Corporation (hereinafter referred to as ‘the Respondents’ or ‘Respondant Company’ or ‘NBCC’) for ‘Sale of Built up Space’ in their project ‘NBCC Plaza Complex, Saket” (hereinafter referred to as ‘subject project’)’ they purchased a space of 78350 sq.ft. along with 81 nos. of car parking slots in the basement (on ownership basis) and 37 nos. of car parking slots on ground floor level (on right to use basis). The tender was floated by the Respondents in their capacity as Promoters and Developers of the project.

The Complainant being the successful bidder, was allotted the subject space and an ‘Agreement for Sale’ was executed between the Complainants and the Respondents on 21.09.2007. Subsequent to the ‘Agreement for Sale’ after the Complainant made complete payment for the subject space, the physical possession was handed over to it by the Respondents on 03.03.2008.

The case of the Complainant is:

A notice was issued to the Complainant for virtual hearing in the matter on 10.06.2022 and the matter was listed for 17.08.2022.

The proxy counsel of the Complainant sought adjournment on 17.08.2022 and further on 27.09.2022 and the matter was next listed on 29.11.2022.

On 29.11.2022, the Authority directed the office to issue notice of the complaint to the Respondents.

A notice to the Respondents was issued on 13.12.2022 as per office order dated 29.11.2022 for appearing before this Authority on 16.02.2023.

On 16.02.2023, the Ld. Counsel for the Complainant prayed for issuing directions to the Respondents for early execution of ‘Conveyance Deed’ in form of sub-lease and also form an ‘Association of Allottees’. It was also submitted that the Respondents were yet to receive Occupancy-cum-Completion Certificate in respect of the subject project due to some issues with the Municipal Corporation of Delhi (hereinafter referred to as ‘the MCD’) and the Land and Development Office (hereinafter referred to as ‘L&DO’).

Notices were issued to MCD and L&DO on 02.03.2023 to appear before this Authority and submit all the details relating to the subject project.

The matter was further heard on 19.04.2023, 01.06.2023, 19.07.2023, 23.08.2023, 12.10.2023, 11.01.2024, 30.01.2024 and 29.02.2024.

The Respondents submitted short reply on 12.04.2023 and enclosed following documents:

A rejoinder was filed by the Complainants on 17.07.2023.

The Respondents, on 21.08.2023, submitted a copy of reply given by the Government in response to a question put up in the Parliament regarding NBCC Plaza Complex, Saket.

Reply to the rejoinder was filed by the Respondents on 23.08.2023.

On 28.03.2023, through an interim application, the Complainant made following additional prayers:

On 09.04.2024 during the course of hearing the Ld. counsel for the Respondents stated that they did not file a reply in response to the above interim application dated 29.3.2023 as a writ petition has been pending before the Hon’ble High Court of Delhi on the subject.

On 04.01.2024, the Complainant submitted following additional documents:

Additional submissions were made by the Complainants on 25.04.2024.

On 03.04.2024, the Respondents submitted a copy of the allotment letter dated 13.08.2001 issued by L & DO to the Respondents for development of subject project at Pushp Vihar, New Delhi.

The Authority also took on record the status report filed by Sh. Adnan Amir, AE (B), South Zone MCD submitted in compliance to Authority’s order dated 29.02.2024 on 05.04.2024, which states as follows:

Additional submissions by the Respondents were filed on 10.06.2024.

A notice dated 02.06.2024, was issued by this Authority to the Respondents to submit a copy of application submitted to the MCD and L & DO for the issuance of partial Occupancy Certificate.

On 10.06.2024, the Respondents filed a written submission and the reply to the interim application filed by the Complainants on 28.03.2023 wherein the Respondents contended that there is no issue of maintenance charges before the Authority as the same has been dealt with by the Hon’ble High Court of Delhi vide orders dated 31.08.2022 and 14.12.2022.

Submissions made by the Complainant are as follows:

With these grievances, the Complainants approached this Authority to seek following reliefs:

Submissions made by the Respondents are as follows:

The Respondents in their reply prayed as follows:

We have gone through the submissions and heard the arguments of both the parties. The Authority notes that land parcel admeasuring 24280.568 sq.mt. was indeed allotted to NBCC on perpetual lease by L & DO on 13.08.2001 in Sector-V, Pushp Vihar, New Delhi for development of Community Centre- cum-Commercial Complex.

On the basis of Tender No. NBCC/RE/2007/30 dated 17.08.2007 issued by the Respondents admeasuring 78350 sq.ft. of built-up space along with 81 nos. car parking slots in the basement (on ownership basis) and 37 nos. car parking slots on ground floor level (on right to use basis), were allotted to the Complainant in consideration of Rs. 158.267 crore in subject project.

An ‘Agreement to Sell’ was executed between NBCC and the Complainant on 21.09.2007 and physical possession of space was handed over to the Complainant on 03.03.2008.

We have perused the documents available on record and have heard the Ld. Counsels of both the parties.

The main issue to be determined by this Authority is whether the subject project was an ongoing or completed project as on 1^st May 2017, the date on which RE (RD) Act, 2016 came into being.

Before discussing the matter further, it is necessary to analyse Section 3 of the RE (RD) Act. 2016 which defines the projects which require prior registration with the Real Estate Regulatory Authorities. The text of this provision is reproduced below:

After perusing the submissions, the arguments and the documents submitted by both the parties, we note that the Respondents, after the notification of MPD-2021, approached L & DO to avail the benefit of additional FAR of 3635 sq. mt. and deposited Rs. 30,42,95,453/-. Thereafter, L & DO issued a letter dated 28.03.2011 to the MCD stating that since the charges on account of additional FAR have already been received by the L & DO; MCD may recover charges other than additional FAR charges from the Respondents and issue ‘Partial Occupancy Certificate for NBCC Plaza’ as per law. In pursuance thereof, the MCD issued an ‘Occupancy Certificate’ for the subject project on 29.03.2011.

The record reveals that by letter dated 07.02.2011, even the General Manager of NBCC had requested the MCD to issue a ‘Partial Occupancy Certificate’ for the project.

The records also reveal that in letter no. NBCC/CGM/REM/2021/223 dated 18.6.2021 written by Sh. A. P. Singh, Chief General Manager, Real Estate Division, NBCC, the partial completion of the project has been admitted, which reads as follows:

As the requests were made for issue of ‘Partial Occupancy Certificate’ and as per their own admission the project was not complete, the ‘Occupancy Certificate’ dated 29.03.2011 cannot be treated as final completion certificate. The notice of completion by the Respondents cannot be treated as proof of completion and definitely treated as the ‘Completion Certificate’. The ‘Completion Certificate’ has to be issued by the Competent Authority after inspection of the property and verification of facts submitted by the developer in the notice of completion.

In this case, since L & DO and Respondents themselves requested MCD to issue a “Partial Occupancy Certificate” for ‘NBCC Plaza’ as per law, the ‘Occupancy Certificate’ dated 29.03.2011 can not be construed as ‘Completion Certificate’ by any stretch of imagination.

Moreover, in reply to unstarred Lok Sabha Question No. 1260, the Hon’ble Minister of State in the Ministry of Housing and Urban Affairs stated that NBCC completed the project in the year 2007 and the ‘Occupancy Certificate’ was issued by Local Body for the project on 29.03.2011. However, ‘Completion Certificate’ is pending because of the issues between NBCC and local bodies with regard to additional FAR charges. This shows that Hon’ble Minister was aware of the issues which rendered the project incomplete as on 29.03.2011.

In the Red Herring Prospectus, the Respondents themselves have admitted the ‘Occupancy Certificate dated as partial by stating the following:

Thus, it is evident that the subject project remains incomplete and continues to fall under the jurisdiction of the RE(RD) Act, 2016. The fundamental requirement under Section 3 of the Act, mandates two essential conditions for project completion:

In the present case, the ‘Occupancy Certificate’ was issued on 29.03.2011, in response to an explicit request for a ‘Partial Occupancy Certificate’. The distinction between a ‘Partial Occupancy Certificate’ and a ‘Completion Certificate’ is not merely semantic but carries legal implications. A ‘Partial Occupancy Certificate’, by its very nature, indicates that the project remains incomplete and does not satisfy the statutory requirements for project completion under RE(RD) Act, 2016.

As per the allotment letter dated 13.08.2001, an MoU was required to be executed and land was to be handed over only upon completion of all prescribed formalities. An allotment does not confer leasehold rights, it’s the ‘lease deed’ which does so.

The ‘Agreement to Sell’ executed between NBCC and the allottees dated 21.09.2007 specifically states that, ‘land shall be allotted to NBCC on a leasehold basis and that the lease deed shall be executed only after the Ministry receives the requisite Completion Certificate.’ Had the project, in fact, been complete the lease deed would, at a minimum, have been executed.

It is to be noted that although L & DO allotted the subject plot to the Respondents on 13.08.2001, they are yet to execute the Lease Deed in favour of NBCC. It is unclear, how the Respondents have sold the property without acquiring the status of the ‘Lessee’. In the first place MCD should not have given the ‘Completion Certificate’ without Respondents having a right over the land as ‘Lessee” or otherwise. In this case MCD could not have given ‘Completion Certificate’, without NBCC having Lease Deed executed in their favour.

The principle of "nemo dat quod non habet" (one cannot give what one does not have) applies squarely to this situation. Whenever a real estate project is transferred, in part or full, to the allottees, the developer must have acquired the rights to further transfer their interest in the property. However, in the present case, the Respondents did not and still do not have a legal title (through an executed lease deed), for transferring the sub-lease rights to the allottees. The absence of a proper lease deed in favour of the Respondents creates a flaw in the chain of title, which cannot be cured by the mere issuance of an ‘Occupancy Certificate’ and therefore, further makes project incomplete, requiring proper execution of title deeds. The L & DO’s condition in the allotment letter that the Respondents may apply for the execution of Lease Deed after receipt of ‘Completion Certificate’ was not correct. The L & DO should have transferred lease hold rights to the Respondents even before they got the building plans sanctioned.

Section 17(1) of the Act places an obligation on the promoter to execute a conveyance deed in favour of allottees along with the undivided proportionate title in the common areas within three months from the date of issue of the “Occupancy Certificate”. The text of this section is reproduced below for ready reference:

The Respondents have definitely failed to meet their above obligation. In the present factual matrix, the ‘Occupancy Certificate’ dated 29.03.2011, which is partial in nature, cannot be considered equivalent to or substituted for a ‘Completion Certificate’. The Respondents own admission in the Red Herring Prospectus, as mentioned earlier, further reinforces that the certificate issued was partial and conditional.

In view of the above, we hold that that the ‘Occupancy Certificate’ dated 29.03.2011 cannot be treated a ‘Completion Certificate’ as envisaged by Section 3(2)(b) of RE(RD) Act, 2016 and hence the subject project is required to be registered with this Authority as on-going project under Section 3 read with Section 4 of the RE(RD) Act, 2016.

In view of the above discussion, we hereby order as under:

The draft orders of Mr. Anand Kumar, Hon’ble Chairman and Mr. Ajay Kumar Kuhar, Hon’ble Member have been shown to me. However, I am in respectful disagreement with the said order. Therefore, I hereby pen my order in following Sections.

A complaint was filed on 23.05.2022 under Section 31 of the Real Estate (Regulation & Development) Act, 2016 by M/s Rajeshwari Realty Private Limited (Formerly M/s Narendra Impex Limited) against Respondents M/s National Building Construction Corporation Limited, Delhi relating to built-up space admeasuring 78350 sq. ft., along with 118 car parking slots, in Community Centre Cum Commercial Complex named “NBCC Plaza” at Sector-5, Pushp Vihar, New Delhi.

The Complainant has stated that the Respondents, National Buildings Construction Corporation Limited (called NBCC hereinafter) issued a tender for “sale of built-up space” at Ground and First Floor (in two slots) (nearing completion) at Pushp Vihar, New Delhi on 17.08.2007. The Complainant was one of the successful bidders and was allotted space admeasuring 78350 sq. ft. along with 81 covered parking and 37 open parking. An Agreement for Sale was executed between the Complainant and the Respondent on 21.09.2007. The physical possession of the subject property was handed over to the Complainant on 03.03.2008 after paying the entire consideration.

The Complainant has alleged that the project “NBCC Plaza” being developed by the Respondent is not yet complete and the Respondents are still carrying out construction at the project site. The Completion Certificate in respect of the said project has not been issued by the Competent Authority. Because the Promoter has not obtained the Completion Certificate before the date of commencement of the Real Estate (Regulation & Development) Act, 2016 (referred as the RE(RD) Act 2016 hereinafter), which came into effect on 01.05.2017, therefore, the said project is required to be registered with the (Real Estate Regulatory Authority, NCT of Delhi) (referred as the RERA Authority hereinafter) as per provisions of the said Act 2016. The Promoter, in violation of the provisions of the Act 2016 and Rules made thereunder, has neither (i) got itself registered with the Authority, (ii) nor has obtained the Completion Certificate and (iii) nor has enabled formation of Association of Allottees to hand them over the common areas of the project.

In view of above, the Complainant has prayed for the following reliefs:

Brief facts of the case, as borne out from the records, are that vide Letter dated 13.08.2001, the Land and Development Office (referred to as L&DO hereinafter) allotted, on perpetual lease basis, land admeasuring 24,280 sq. mtr. at Sector-V, Pushp Vihar, New Delhi, to the Respondents NBCC for construction of “Community Centre Cum Commercial Complex”. The Respondents planned to develop a Commercial Building namely NBCC Plaza on the said land.

Accordingly, NBCC prepared the drawings for construction of a five storeyed building ‘NBCC Plaza’ as per building norms prescribed in MPD 2001. The building plans were sanctioned by Municipal Corporation of Delhi (MCD) on 17.02.2006.

When the building neared completion, the Respondent NBCC, on 17.08.2007, issued Notice Inviting Tender (NIT), bearing No.: NBCC/RE/2007/30, for sale of built-up space at Ground Floor and First Floor (in two slots). The Complainant bidded for 50% of Ground Floor and First Floor in Eastern side of the building (lot-II) with saleable super area admeasuring about 78,350 sq. ft. with 81 covered parking with right of ownership basis and 37 open parking with right of use only.

The Complainants M/s Rajeshwari Realty Private Limited were declared successful. Upon payment of sale consideration, NBCC executed an Agreement to Sell with the Complainants on 21.09.2007. The physical possession of the built-up space at NBCC Plaza was handed over to the Complainants on 03.03.2008. The Complainants have since occupied the said property and are carrying out their business from the said premises. NBCC has allotted the built-up space in the said five storeyed building (NBCC Plaza) to various Government and private organizations during 2007-2008 and the building has been fully occupied as on date. The Respondents NBCC requested MCD for issue of Occupancy Certificate for the building. MCD issued Occupancy Certificate for the said Commercial Complex on 29.03.2011.

The Master Plan in force at the time of preparing building plan was Master Plan for Delhi 2001 i.e. MPD 2001. The FAR prescribed in MPD 2001 was 100% and Ground Coverage was 25%.

Subsequently, on 07.02.2007, the Govt. of NCT of Delhi notified Master Plan for Delhi 2021 (MPD-2021). In the said MPD 2021, the permissible FAR has been increased from 100% to 115%. In MPD-2021 the permissible Ground Coverage is 25% with maximum 10% Additional Ground Coverage (of the total plot) which can be availed for providing atrium.

Thus, on coming into force of MPD 2021 on 07.02.2007, the Respondent NBCC became eligible for Additional FAR of 15% (i.e. to undertake additional construction measuring 3653 sq. mtrs. in area) and additional Ground Coverage by 2.6%.

Because land had been allotted to NBCC by L&DO on lease basis, NBCC sought NOC from L&DO for availing Additional FAR allowed in MPD 2021 for the said plot (i.e. to undertake construction of additional area on the said plot). L&DO granted NOC to MCD on 07.02.2011. L&DO demanded charges of Rs. 30.42 crores for additional FAR which MCD paid.

On receiving permission from L&DO, NBCC started construction on the said plot to utilize permissible additional FAR. However, the NBCC did not get the Building Plans for additional area approved from MCD. Therefore, MCD stopped the construction work. Later, on 13.01.2014, the MCD sealed the new constructions being unauthorised.

Subsequently, NBCC prepared a building plan for utilising additional FAR and submitted them to MCD for sanction. MCD demanded Rs. 32.25 crores as charges for sanction of building plans to utilise additional FAR.

It may be noted that additional FAR charges demanded by L&DO were towards additional land premium for permitting NBCC to undertake additional construction on plot. On the other hand, the charges demanded by MCD were for sanctioning the building plans for construction of additional area.

However, NBCC, did not pay the charges to MCD for sanction of building plan for availing additional FAR, thinking that payment of additional FAR charges to MCD would amount to double payment of additional FAR charges as MCD has already paid additional FAR charges to L&DO.

Because NBCC failed to pay the charges demanded by MCD to sanction the building plans to utilise additional FAR, the MCD, though it had approved building plans, refused to release the said building plans for non-payment of due charges.

Till date NBCC has not paid the charges demanded by MCD to sanction building plans for permissible additional FAR. Therefore, the MCD has not sanctioned the building plans and unauthorised constructions remain sealed till date.

In the meantime, on 01.05.2017 the Real Estate (Regulation & Development) Act 2016 came into force. As per its provisions, any constructions for sale, falling within jurisdiction of the RE(RD) Act 2016, is required to be registered with Real Estate Regulatory Authority of NCT of Delhi before offering the units for sale.

Case was heard on 17.08.2022, 27.09.2022 & 29.11.2022. Notice was issued to the Respondent on 06.12.2022. Case was heard on various dates on 16.02.2023, 19.04.2023, 01.06.2023, 19.07.2023, 23.08.2023, 12.10.2023, 11.01.2024, 30.01.2024, 29.02.2024 & 09.04.2024.

The Respondents have filed short reply to the complaint. The Complainants have filed Rejoinder, Written Submissions and Additional Submissions. Complainants have also filed Extracts from counter affidavit filed by NBCC in WPC 11720/2022 and extracts of draft Red Herring Prospectus of NBCC and Reply of NBCC to Parliamentary Question No. 1260. Respondents have filed replication to Rejoinder, Application for filing Additional Documents, Written Submissions and Additional Submissions.

I have heard the arguments of the Counsels for the parties at length and have also perused the submissions/documents submitted during the course of the proceedings.

The Complainant has argued that on 13.08.2001, L&DO allotted land measuring 24280.568 sq. mtrs. to M/s NBCC (India) Limited. The land was allotted for a single building and this would imply that the land was allotted for a single project. An Agreement for sale was executed between the Complainant and Respondent on 21.09.2007 for approximately 78000 sq. ft. built up area in the said building. Physical possession was handed over to the Complainant on 03.03.2008.

The Respondent was to avail 100% FAR for construction of NBCC Plaza but committed several illegalities in construction. Later, the South Delhi Municipal Corporation (SDMC) pointed out deviations from the sanctioned building plans and asked the Respondents to use additional FAR permitted in the MPD 2021 to regularise the existing deviations. On 11.03.2011, SDMC levied penalty on the Respondent for illegal construction and issued a letter demanding compounding fee, including additional FAR charges, for compounding the deviations to enable the project to become MPD-2021 compliant. On 28.03.2011, the L&DO asked the SDMC to issue partial Occupation Certificate to NBCC. On 29.03.2011, the SDMC issued a partial and conditional Occupancy Certificate to the Respondent.

Respondents submitted building plans to MCD for availing additional FAR. Though MCD passed the building plans, it did not release the same because Respondents failed to deposit charges demanded by MCD. Subsequently, the SDMC issued a Show Cause Notice/Letter dated 13.01.2012 to the Respondents to stop construction. On 10.01.2014, the MCD sealed the illegal construction being carried out by the Respondents.

The Complainants have alleged that in several letters written to SDMC and L&DO, the respondents have themselves admitted that only partial and conditional Occupancy Certificate has been issued by SDMC for the said project “NBCC Plaza”. Therefore, the Occupancy Certificate dated 29.03.2011 issued by MCD can only be regarded as Partial Occupancy Certificate. Further, because the additional construction is being undertaken on the original land, the construction should be considered as a part of the NBCC Plaza project. Therefore, the NBCC Plaza project should be considered as an incomplete and ongoing project. Therefore, the project is liable to be registered with RERA. The Completion Certificate issued by MCD is merely an interim document which is akin to an Occupancy Certificate.

The Respondents have argued that the land measuring 24280.568 sq. mtrs. at Sector-V, Pushp Vihar, New Delhi was allotted by the Land and Development Office (L&DO) to the Respondents on 13.08.2001 on perpetual lease basis for “construction of Community Centre Cum Commercial Complex”.

Respondents got the building plans sanctioned on 17.02.2006 and developed a building “NBCC Plaza” as per MPD-2001 15 years ago. The construction was completed in the year 2007. The Completion Certificate was applied in the year 2007. The Built-up space was leased to various private and government organizations during 2007-2008 and has been 100% occupied since then. The Complainants themselves have taken possession of their portion on 03.03.2008.

As per practice at that time, MCD used to issue Occupancy Certificate as proof of Completion & proof of building being habitable. MCD has issued Occupancy Certificate for the completed NBCC Plaza building on 29.03.2011. The project is complete.

Therefore, the Respondents have argued that the project NBCC Plaza, is a completed project. It is not an ongoing project nor a project for which Completion Certificate has not been issued. Therefore, Respondent is not required to register the project under the Real Estate (Regulation and Development) Act, 2016.

Respondents have further argued that when the Building Plans were sanctioned in 2006, MPD 2001 was in force which permitted 100% FAR for construction. The construction of the building was done as per the MPD-2001 norms. Subsequently, on 07.02.2007, the Delhi Government notified a new Master Plan i.e. Master Plan of Delhi 2021 (MPD-2021). The new Master Plan, MPD 2021, permitted the Respondents to avail additional FAR of 15% (i.e. an additional area measuring 3635 sq. mtrs.) and additional Ground Coverage of 2.6%.

Therefore, NBCC approached L&DO for obtaining NOC for availing additional FAR as per MPD-2021. The L&DO demanded an amount of approximately 30.42 crores for grant of NOC. NBCC paid the demanded charges and, on 07.02.2011, L&DO granted a No Objection Certificate to NBCC to avail and utilise permissible additional FAR.

Respondents have further stated that after obtaining NOC from L&DO, NBCC pursued the matter with SDMC (South MCD) to get the building plan for additional FAR sanctioned. At the same time, NBCC started construction for utilising additional FAR in the year 2011. As the answering Respondents started construction without obtaining the sanction of MCD for building plan.

Therefore, NBCC requested L&DO to advise MCD to pass building plans without charging fees towards additional FAR. Vide letter dated 28.03.2011, the L&DO requested MCD to:

MCD issued Occupancy Certificate for completed block of Community Centre Cum Commercial Complex on 29.03.2011. However, MCD did not sanction the building plans for availing additional FAR without payment of due charges. In due course the MCD issued Show Cause Notice on 13.01.2012 to stop the work.

Consequently, SDMC, vide letter dated 25.08.2015, conveyed the approval of building plans subject to the condition that Rs.32.25 crore (approx.) shall be deposited with MCD on account of additional FAR charges before release of approved building plans.

Because the NBCC had already paid Rs. 30.42 crores to L&DO towards the additional FAR charges (for land premium), NBCC did not pay the additional FAR (for sanction of building plans) charges demanded by MCD. Therefore, there is stalemate in the matter. The site remains sealed and the construction work has remained stopped for last more than 12 years.

Respondents have stated that the work relating to additional FAR is a new and separate phase of the project which is permissible as per the RE(RD) Act, 2016. The Respondents have further stated that they shall approach RERA for registration of additional FAR work as a new phase whenever they start construction of additional permissible FAR after release of sanctioned building plan by MCD.

NBCC has, therefore, argued that construction of NBCC Plaza is completed long ago. The project was completed in 2007 and Occupancy Certificate was obtained in 2011. The project is completed much before the RE(RD) Act, 2016 came into force and is not an ongoing project. As such, the project does not fall under jurisdiction of the RE(RD) Act 2016 and is not liable to be registered with RERA.

Respondents have also stated that as per Section 346 of the Delhi Municipal Corporation Act 1957 (as amended by Delhi Act 10 of 2022) Occupancy & Completion Certificate are one and the same thing. They are referred to as “Occupancy Cum Completion Certificate” under the Unified Building By-Laws of Delhi 2016. In the present case, MCD has issued an Occupancy Certificate after conducting due diligence and ensuring that the project was complete in all respect.

In view of all above, the following issues need to be decided to settle the controversy between the parties:

Hon’ble Supreme Court of India in Newtech Promoters and Developers Pvt. Ltd. V/s State of UP 2021 SCC online SC1044 has held that, from the scheme of the RE(RD) Act, 2016, its application is retroactive in character and it can safely be observed that projects already completed or to which the Completion Certificate has been granted before commencement of the Act are not under its fold.

The Complainants have argued that the construction of said project NBCC Plaza is not complete and Completion Certificate of the said project has not been obtained. Respondents M/s NBCC constructed the said project with deviations. The said project is a single project and the additional construction is part of original constructions. The MCD has sealed the said project due to deviations from the building plans. NBCC has not paid the requisite charges to MCD for sanction of building plans, and therefore, MCD has not released the new building plans and has not desealed the sealed constructions. The Occupancy Certificate granted to the said project on 29.03.2011 is only Partial and cannot be taken as Completion Certificate. As such the project remains incomplete. Even the Respondents, in their various correspondences, have referred the said Occupancy Certificate to be partial.

The Respondents have argued that the construction was completed in the year 2007. The built-up space in the project has been leased to various private or government organizations in the year 2007-2008. The project has been 100% occupied as on date. The Complainant himself has taken over physical possession of built-up space at NBCC Plaza on 03.03.2008 and has occupied the said building ever since. The Occupancy Certificate has been obtained on 29.03.2011. The project is complete. The Occupancy Certificate, which has the effect of a Completion Certificate, has been issued much before commencement of the RE(RD) Act. Therefore, the project is completed much before the RE(RD) Act came into force. Therefore, the project NBCC Plaza does not fall under jurisdiction of the Act and is not liable to be registered with RERA.

Respondents have further argued that the additional constructions have nothing to do with original project. The additional constructions were started only in year 2011 to avail additional FAR which became available due to MPD-2021 being notified on 07.02.2007. Additional construction should be seen as a separate phase. This work could not be completed in time because it has been sealed by MCD in year 2014 being unauthorised. The work remains stopped since January 2014. As and when the work is restarted, it shall fall under purview of the RE(RD) Act 2016 as new separate phase. NBCC would obtain RERA registration under RE(RD) Act 2016 at that time.

We note that the Complainant, along with his complaint, has enclosed a copy of the “Notice Inviting Tender” (NIT) issued by NBCC on 17.08.2007 for sale/auction of the built-up space under reference. In the said “Notice Inviting Tender” it was clearly mentioned that project is nearing completion.

The Complainant has also enclosed a copy of “Agreement to Sell” executed between the Complainant and the Respondents NBCC on 21.09.2007. The said Agreement to Sell has been duly singed by both the parties including the Complainant. In the said Agreement to Sell dated 21.09.2007 also it has been clearly stated that “NBCC has constructed a five storeyed Community Cum Commercial Complex known as NBCC Plaza on the said plot of land as per sanctioned plans from Local Authorities”.

The Respondent NBCC has submitted a copy of building plans sanctioned by MCD for the said project “Construction of Commercial Centre Cum Commercial Complex”. Copy of the sanctioned Building Plan shows that the said building plan has been approved by MCD in 2006 and bears serial no. 833/B/HQ/2003.

The Respondents have also submitted copy of the Occupancy Certificate, issued by MCD, for the said building. The said Occupancy Certificate has been issued on 29.03.2011 for a building whose building plans were approved vide building plan No. 833/B/HQ/2003. The said Occupancy Certificate further states that intimation of completion was given by NBCC to MCD on 24.07.2007. The Occupancy Certificate has been issued in response to said intimation for completion dated 24.07.2007. Thus, the said Occupancy Certificate has been issued for the Community Centre Cum Commercial Complex”.

The Respondents have argued that after completing the project the notice of completion was given to MCD on 24.07.2007. The building was completed as per sanctioned building plan. Its possession was handed over to the Complainants on 03.03.2008. The Complainants have not pointed out any deviations from the sanctioned building plan either in their part of the building or in the entire project. Therefore, the contention of the Complainants that the project is not complete cannot be sustained. The arguments of Respondents are accepted because no deviation from the sanctioned building plan has been pointed out. The building has been completed as per approved plans. If there was any extra construction for whatever reason, the same has been stopped and sealed and deviation, if any, has been nipped in the bud.

Respondent NBCC has stated that at that time, Completion Certificates were not issued. It was a practice to issue only Occupancy Certificate. The Respondents have further argued that the Completion Certificate and Occupancy Certificate are in effect synonymous with each other under Section 346 (2) of the Delhi Municipal Corporation Act, 1957. Therefore, NBCC has argued that the issued Occupancy Certificate is a proof of completion.

The definition of ‘Completion Certificate’ provided under Section 2 of the RE(RD) Act 2016 is pertinent to the matter in hand:

It is clear from the above definition of Completion Certificate under the RE(RD) Act, 2016 that the provisions attach its fidelity to the spirit of the word Completion Certificate which is a certificate that signifies complete development of the project in line with the sanctioned building plans and this certificate must be issued by a competent authority.

For convenience, Section 346 of DMC Act, 1957 reads as follows:

Regarding the notice of completion requirement, Section 346 (1) of the DMC Act, 1957 mandates that upon completing a building or executing work, the person employing a licensed architect or engineer must submit a notice of completion to the Commissioner within one month. This notice must be accompanied by a prescribed certificate and facilitate inspection of the building or work.

Further, Sub-section 2 of Section 346 of DMC Act, 1957 mandates that no building can be occupied or used, either in full or in part, until a permission has been granted by the Commissioner in this behalf in accordance with the Bye Laws made under the DMC Act, 1957.

Definition of Occupancy Certificate is also provided under Section 2 of the RE(RD) Act 2016 as under:

The Occupancy Certificate available on record mentions that Respondents had given a notice of completion on 24.07.2007. The said Occupancy Certificate further declares that the building, whose description is given in the said Occupancy Certificate and whose plans were sanctioned, is fit for occupation.

The issuance of the Occupancy Certificate serves dual functionality. It not only certifies the project’s completion but also grants occupancy permission. The legal framework treats the Occupancy Certificate to confirm that the project was fully completed and ready for use. MCD would not issue an Occupancy Certificate to a building which has not been completed as per sanctioned building plans. Section 2(q) of the RE(RD) Act 2016 also states that any certificate, irrespective of its name, which certifies that real estate project has been developed according to the sanctioned plan, would mean a Completion Certificate. Thus, the Occupancy Certificate can be equated to a Completion Certificate as per the dicta of RE(RD) Act, 2016.

Therefore, in view of all above discussions, the arguments that the project has not been completed cannot be sustained. The arguments that the Occupancy Certificate issued on 29.03.2011 is proof of the completion of the project are upheld.

The Complainant has also argued that, as per building bylaws, MCD cannot issue Completion Certificate in favor of the Respondents unless and until the Respondents obtain a lease deed from the L&DO for the subject land and submit the same with SDMC. NBCC does not have a lease in its favour, therefore, MCD cannot issue Completion Certificate. Therefore, the Occupancy Certificate dated 29.03.2011 issued by MCD for the said project is not a Completion Certificate.

Clause 2.1 of the Unified Building By-Laws for Delhi 2016 deals with ownership documents required to be submitted for obtaining sanction of building plan.

Clause 2.1 of the UBBL, 2016 is reproduced as under:

Clause 2.6 of the Unified Building By-Laws for Delhi 2016 deals with the documents to be submitted to MCD for giving notice for obtaining Occupancy Cum Completion Certificate (OCC).

Clause 2.6 of UBBL, 2016 is reproduced as under:

From the above, it can be seen that ownership documents are not required to be submitted for issuance of Occupancy Cum Completion Certificate (OCC) if there is no change in ownership since sanction of building plans. In the instant case, there is no change in ownership. Therefore, in view of provisions contained in Clause 2.6.2, read with Clause 2.1.2 of the UBBL, the ownership documents submitted at the time of obtaining sanction for building plans shall be considered in the instant case.

A perusal of Allotment Letter dated 13.08.2001 issued by L&DO in favour of NBCC reveals that in the instant case the land has been allotted to NBCC by the President of India through Land and Development Office (L&DO), Ministry of Urban Development & Poverty Alleviation.

In view of above, the allotment letter issued by the President of India in favor of NBCC is sufficient to establish legal ownership of NBCC over the said plot. MCD sanctioned building plans for the said project on the basis of said allotment letter/ownership document issued by L&DO on behalf of the President of India. In due course, MCD has also issued Occupancy Certificate to said building on the basis of said document only. Therefore, the argument of the Complainant that the Occupancy Certificate could not have been issued by MCD in favor of the Respondents for want of a lease deed, and therefore cannot be treated as Completion Certificate, is hereby rejected.

In view of above discussions, the arguments of the Complainants that project is not completed are hereby rejected. The arguments of the Respondents that the project is a completed project are hereby upheld. I hold that the project “construction of Community Cum Commercial Complex” is a completed project.

Issue No. 1 is decided accordingly.

The Complainant has argued that the Occupancy Certificates issued by SDMC on 29.03.2011 is partial and incomplete.

A perusal of Occupancy Certificate issued by SDMC dated 29.03.2011 shows that the certificate is titled “Occupancy Certificate”. It is nowhere mentioned in the said Occupancy Certificate that it is “partial”. Therefore, there is no basis or reason to claim that the said Occupancy Certificate is partial.

The Complainant has stated that NBCC, on various occasions, through its letters written to the L&DO, and to the SDMC, has admitted that the Occupation Certificate is Partial. The Complainant has enclosed copy of letter dated 11.05.2022 of NBCC addressed to the Additional Commissioner, South Delhi Municipal Corporation where NBCC has mentioned that MCD has issued conditional occupancy certificate on 29.03.2011. The Complainant has also enclosed letter dated 12.12.2022 by NBCC, addressed to the L&DO, where it has been mentioned that Completion Certificate of the project has not been received. Thus, the Complainant has impressed upon that the Occupancy Certificate is partial and Completion Certificate has not been issued. Therefore, the project is not yet complete.

The above-mentioned letters have been perused. The official who has written the letter dated 11.05.2022 terming the Occupancy Certificate dated 29.03.2011 as Conditional Occupancy Certificate has not clarified the reasons for claiming why the “Occupancy Certificate” is conditional. As has been mentioned in above sections, the said Occupancy Certificate, nowhere mentions that it is “conditional or partial”. Thus, MCD has issued a regular Occupancy Certificate. There is no reason to state that it is a conditional or partial Occupancy Certificate. Therefore, the statement of the official that said certificate is partial or conditional, without giving any justification as to why it is conditional, cannot be accepted and would not change the legal status of said Occupancy Certificate. It is also and noted that such a statement has been made after more than a decade of issuance of OCC. Therefore, it is held that there is no reason to believe that the Occupancy Certificate is conditional or partial and that it did not signify completion of the building.

It is also noted that NBCC, in its sworn replies in the present proceedings, has stated that MCD has issued Occupancy Certificate after conducting due diligence and ensuring that the project was complete in all respects. The Complainant has failed to explain why above statement of NBCC be rejected and why only claim made by Complainant on the basis of some unjustified letters be upheld.

The Respondent NBCC has also argued that if the Complainant is challenging the authenticity of the said “Occupancy Certificate”, or is trying to undermine the authority of SDMC (South Delhi Municipal Corporation) with respect to its powers to issue such a document, Hon’ble RERA would not be the right Forum to challenge the same.

I see a merit in the above arguments of the Respondents. In case the Complainant believed that the Occupancy Certificate dated 29.03.2011 issued by MCD is erroneous or is partial, they should have approached MCD, or its Appellate Tribunal, for cancellation of the same and for issuance of a partial Occupancy Certificate. Complainants have not done so. This Authority cannot sit over judgment on the veracity of certificates issued by MCD.

The Complainant has also filed copy of reply given by NBCC (India) Ltd. to unstarred Lok Sabha Question No. 1260. In the said reply, Hon’ble Minister of State in the Ministry of Housing and Urban Affairs have stated that NBCC completed the project in the year 2007 and the Occupancy Certificate was issued by Local Body for the project on 29.03.2011. However, Completion Certificate is pending because of the issues between NBCC and local bodies with regard to additional FAR charges. The Complainant has stated that this reply is a proof that the Completion Certificate has not been issued for the project till date.

These argument of Complainant are also not tenable. It may be seen that in his reply the Hon’ble Minister has clearly stated that the project has been completed in the year 2007 itself and the Occupancy Certificate has been issued on 29.03.2011. Hon’ble Minister has further stated that the Completion Certificate is pending due to issue between NBCC and Local bodies with regard to additional FAR charges. Thus, in the said reply it has been clearly stated that issue between NBCC and MCD is about additional FAR. There is no issue regarding completion of the project and the project, has already been completed in 2007 as per approved building plan.

In the said reply to the Parliament Question No. 1260, Hon’ble Minister has also enclosed an Annexure which gives a list of projects executed by NBCC and their status. As per the said Annexure, the status of project NBCC Plaza, Pushp Vihar, New Delhi has been shown as completed and handed over to allottees.

Therefore, the contention of the Complainant that Reply to unstarred Lok Sabha Question 1260 proves that Completion Certificate has not been given to NBCC is hereby rejected.

The Complainant has also enclosed copy of extracts from Red Herring Prospectus filed by NBCC with SEBI to show that the NBCC has admitted that the Occupancy Certificate issued for the project is partial.

The relevant portion of said Red Herring Prospectus are reproduced below:

It can be noted that information provided in Red Herring Prospectus at point ‘4’ in above para relates to a compoundable deviation in construction for which MCD paid compounding fee in 2009 itself. Therefore, this does not prove that Occupancy Certificate is partial. The point ‘5’ in above para relates to “charges levied by L&DO” towards premium and damages for “additional coverage”. It has nothing to do with constructions as per initial building plans. Similarly, information furnished at point ‘6’ of above para relate to charges demanded by MCD for additional FAR, which NBCC has been claiming that it has already paid to L&DO.

From careful reading of the information furnished in the prospectus, it is clear that the compounding fee levied by the MCD was for enhanced FSI (i.e. FAR). The enhanced FSI was available to NBCC only after coming in force of new Master Plan MPD-2021. NBCC started construction for enhanced FSI only in the year 2011, after obtaining NOC from L&DO on 07.02.2011, and in anticipation of sanction of the building plan. Thus, the said disclosures in Red Herring Prospectus relates to events in the year 2011. The said disclosure does not establish that the Occupancy Certificate issued by MCD for building constructed as per earlier building plan bearing number 833/B/HQ/2003 sanctioned in year 2006 was partial. Therefore, the contention of Complainant that disclosures in prospectus prove that Occupancy Certificate is partial is rejected.

Therefore, it is held that the Occupancy Certificate is not partial.

Issue No. 2 is decided accordingly.

The Complainant has claimed that that the project of construction of Community Centre Cum Commercial Complex named NBCC Plaza, Pushp Vihar, New Delhi is an ongoing project, and therefore, is liable to be registered under the provisions of the RE(RD) Act 2016.

The Real Estate (Regulation and Development) Act, 2016 came into force w.e.f. 01.05.2017. Section 3 of the Act deals with the provisions relating to which real estate projects need to be registered with the Real Estate Regulatory Authority (RERA).

Relevant extracts of Section 3 are reproduced below:

Section 3(2): not reproduced. (emphasis supplied)

From above it would follow that only the projects, which were ongoing on the date of commencement of the RE(RD) Act, and for which the Completion Certificate had not been issued, were required to be registered with RERA within three months from the date of commencement of the Act 2016. The project which was not ongoing on the date of commencement of the RE(RD) Act 2016 shall not be required to be registered. Similarly, the project which had obtained Completion Certificate on the date of commencement of the Act was also not required to be registered.

The RE(RD) Act, 2016 does not define the word ‘ongoing’. Therefore, we have to look for its meaning in English dictionary.

We have noted that the project “Construction of Community Centre Cum Commercial Complex” was completed in 2011. Therefore, so far the project of construction of Community Cum Commercial Complex is concerned, no project was ongoing on the date of commencement of the RE(RD) Act 2016.

We have also seen that the additional construction at site was sealed by MCD on 10.01.2014 being unauthorised. The construction work has remained stopped since 2014. There is no construction/work at the site since 2014. An effort to undertake unauthorised construction much before the RE(RD) Act, 2016 came into effect, which was stopped by MCD in 2014 (i.e. much before the RE(RD) Act, 2016 came into effect) cannot be said to be an ongoing project. There is no allottee, no collection of money or no constructions whatsoever till date. Therefore, it cannot be said that any project was ongoing at the said site on the date of commencement of the RE(RD) Act 2016. Therefore, it cannot be said that the construction of Community Centre Cum Commercial Complex was an ongoing project on the date of commencement of the RE(RD) Act 2016. No project/work was ongoing on the date of commencement of the RE(RD) Act 2016, nor is ongoing even after that date till today.

In view of above discussion, it is held that the project of Construction of Community Centre Cum Commercial Complex was not an “ongoing project” on the date of commencement of the RE(RD) Act 2016.

In view of above, Issue No. 3 is decided accordingly.

During the proceedings, the Complainant has also mentioned about high and unreasonable maintenance charges levied by the Respondents and has stated that the maintenance charges need to be reasonable as per provisions contained in Section 11 (4) (d) of the RE(RD) Act, 2016.

It is noted that in his complaint, the Complainant has not mentioned about maintenance charges. In the prayer clause of the complaint, the Complainant has not prayed for any relief towards maintenance charges. The Respondents have stated that the maintenance is not an issue to be adjudicated before this Authority. Respondents have further stated that the Hon’ble High Court of Delhi has, vide its order dated 31.08.2022 and 14.12.2022, has already decided that the NBCC/Respondents will have to maintain the project premises after taking the maintenance charges following the terms and conditions of the contract.

In the Tender document (NIT) advertised in August 2007, it was clearly mentioned that maintenance of the entire complex including common services shall remain with NBCC for which cost will be charged from all the buyers on monthly basis, pro-rata to the space allotted. This maintenance charges shall be for running, operation and the maintenance of common services such common lights, lifts, security, DG sets, AC plants rooms, AHU, escalators for common area and cleaning etc. Also, in the Agreement to Sell executed between Complainant and Respondents on 21.09.2007, it was clearly mentioned that maintenance of the building will be arranged by the seller. The Seller would charge from the successful bidder lump sum flat charges per sq. ft. per month from the date of handing over physical possession at rates prescribed in the said Agreement to Sell.

It can be noted that the RE(RD) Act, 2016 was not in force during that period when the Tender Document was issued in August 2007 or the Agreement to Sell was signed on 21.09.2007. Therefore, the terms of contract between the Complainant and the Respondents as per Notice Inviting Tender and Agreement to Sell shall govern the payment of maintenance charges. As the project does not fall within purview of the RE(RD) Act 2016, the contractual conditions between the parties can only be decided by a Competent Civil Court and cannot be interfered with by the Authority at this stage.

In view of discussion in foregoing sections, it is established that the construction was completed in year 2007. Intimation of completion was given on 24.07.2007. The building has been allotted to various private and government offices in the year 2007-2008 and has been fully occupied as on date. The Complainant himself has taken physical possession of the said building on 03.03.2008 itself. The Completion Certificate has been issued on 29.03.2011. The Occupancy Certificate is not partial. Therefore, the project “Construction of Community Centre Cum Commercial Complex” is complete. In previous Sections, it has been established and held that the project is not ongoing.

It is, therefore, hereby held that the project has been completed much before the date of commencement of the Real Estate (Regulation and Development) Act, 2016. Also, the project is not an ongoing project as on date of commencement of the Real Estate (Regulation and Development) Act, 2016. Therefore, the project does not fall under the purview of the RE(RD) Act, 2016 and is not liable to be registered under provisions of Section 3 of the RE(RD) Act 2016.

For above mentioned reasons, the prayer of the Complainant to issue directions to Respondent to register the said project with the Authority, and to obtain Completion Certificate and lease certificate or to form association of allottees, is hereby rejected. The present complaint is, therefore, dismissed being devoid of merits.

Ordered accordingly.