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Judgment
A complaint in FORM M was filed on 23.3.2021 by Mrs. Poonam Manchanda and Shri Ankur Manchanda (hereinafter referred as “Complainants”) stating that vide Allotment Letter dated 16.10.2019, they had booked a 3BHK flat admeasuring 1545 sq ft in DLF Capital Greens, a project of DLF Home Developers (hereinafter referred as “Respondents”). The Complainants stated that though a sum of Rs. 1,09,87,947/- has been paid to the Respondents; they are yet to offer them possession. The reliefs sought by the Complainants are as below:
Direct the Respondents to hand over the possession of the apartment to the Complainants.
Direct the Respondents to pay compensation by way of interest @ 1.5% per month, the rate at which Respondents charge for any late payment, for a period of 4 years & 9 months from the due date of handing over possession i.e. 1st October, 2012 to the date of offer of possession letter dated 27.06.2017.
Direct the Respondents to pay further compensation by way of interest @ 2% per month, for the period from 27.06.2017 to the actual date of physical possession of the apartment.
Direct the Respondents company to refund following amounts with exemplary interest costs @ 2% per month from the date of payment to the actual date of refund;
- Rs.3, 31,066/- as proportionate Share of Taxes and Rs. 49,659/- as Service Tax.
- Rs.3, 63,048/- as Total Service Tax.
- Rs. 1, 24,310/- as VAT Recoverable (VAT_R).
- Rs.31,094/- as Property Tax,
Refund following amounts to the Complainants with interest @ 2% per month from the date of payment to the actual date of refund;
- Rs.1,33,870/- as proportionate costs of bulk electricity supply -Rs.20,080/- as Service Tax thereon - ACLEL Security Charges of Rs.10,500/-
- Rs.4, 50,000/- as costs of Basement Parkings + Service Tax thereon.
- Rs.1, 00,000/- as Club Membership Fee + Rs.15, 000/- as Service Tax thereon.
Direct the Respondents to furnish complete documentation and information concerning the computation of Super Area and hold the charged Super Area of 1604 sq. ft. as excessive.
Direct the Respondent - 1 not to charge late payment interest, if any, or grant early payment rebate, by treating the amount of TPR of about Rs.8 lakh having been actually paid by the Complainants on 14th January, 2012.
Direct the Respondent- 1 to delete the delayed payment interest (DLI) of Rs. 1088/- and to grant early payment rebate (EPR) at Rs.11, 62,510/- as computed.
Direct the Respondents to refund the extra amount of Service Tax & VAT with interest which was not reduced following the reduction of parking charges from Rs.18.50 lakh to Rs.4.50 lakh & grant of TPR of Rs.8.02 lakh etc.
Direct the Respondents not to charge amount @ Rs.100 per sq. ft. or any other sum as administrative charges or by any other name, on any transfer of apartment, as these are against the law & agreement.
Direct the Respondents to delete and reverse, any or all charges collected on account of the alleged monthly maintenance charges & holding charges, etc. for the period prior to the actual physical handover of possession,
Direct the Respondents to grant a compensation of at least Rs. 2 crore to the complainants for the huge, undue and unprecedented harassment, both mental and physical, caused to them with mala fide & fraudulent motives.
A preliminary hearing was held on 15.4.2021 and notice to the Respondents was issued on the same date.
Shri Ashok Manchanda, Authorized Representative appeared on behalf of the complainants and Smt Mandeep Kaur & Shri Aditya Singh, Advocates entered appearance for the Respondents.
An email dated 8.7.2021 was addressed by the Respondents challenging the jurisdiction of this Authority to entertain the present complaint as the project “DLF Capital Greens” is not covered under the provisions of Real Estate (Regulation and Development) Act 2016 (hereinafter referred as “RE(RD) Act, 2016”). It has been stated by the Respondents that the project ‘‘DLF Capital Greens’’ comprises of three Phases i.e., Phase I, Phase II (II A and IIB) and Phase III. The apartment no. CGP 185 allotted to the Complainants is located in Tower P, Phase IIB (comprising of Towers L, M, N, P& Q earlier named as 15, 16, 17, 18 & 19). The details of receiving Completion Cum Occupancy Certificates in respect to all Phases are as given below:-
| Phase | No. of Towers | Numerical Numbering of the Towers as detailed under Occupation-cum-Completion Certificate | Corresponding Alphabetical Numbering of the Towers | Completioncum Occupancy Certificate Application date | Completioncum Occupancy received |
| Phase-1 | 10 | 5, 6, 7, 8, 9, 10, 11, 12, 13 & 14 | A, B, C, D, E, F, G, H, J & K | 12.03.2015 | 30.06.2016 |
| Phase-2A | 5 | 1, 2, 3, 4 & 20 | R, S, T, U & V | 14.03.2016 | 14.10.2016 |
| Phase-2B | 5 | 15, 16, 17, 18 & 19 | L, M, N, P & Q | 10.10.2016 | 21.02.2017 |
| Phase-3 | 3 | 21, 22 & 23 | W, X & Y | 27.10.2016 | 05.04.2017 |
It was submitted by the Respondents that numerically identified towers were changed to alphabetically identified towers.
Respondents submitted that a complaint can be filed against a Promoter, who has registered or is liable to register under the RE(RD) Act, 2016. In this case all the phases of their project ‘‘DLF Capital Greens’’ were complete and completion cum occupancy certificate in respect of all three phases were received before 01.05.2017. Thus by virtue of provisions of section 31 and section 3(2)(b) of the RE(RD) Act, 2016 the project “DLF Capital Greens” does not fall under the purview of the RE(RD) Act, 2016 and therefore, complaint is liable to be dismissed at threshold. In support of their contention on jurisdiction, the respondents have relied upon the recent decision of the Hon’ble Supreme Court in M/s Newtech Promoters & Developers vs State of UP and Ors, 2021, SCC Online SC 1044.
Subsequently, the Respondents filed another reply on 12.10.2021 and the rejoinder to the written reply was filed by Complainants on 22.11.2021. On 21.12.2021 final written submissions was filed by the Respondents.
On 13.10.2021, the Complainants filed (i) written reply to Respondents jurisdiction challenge, (ii) application for additional relief and (iii) final application for transfer. On 21.12.2021, final written submissions were made by the Complainans.
The specific contention of the Complainants is that the completion cum occupancy certificate has not been issued for the whole project ‘‘DLF Capital Greens’’ and there cannot be more than one completion certificate for one project. They also submitted that the Respondents are yet to complete common facilities and amenities such as club, shopping complex, gym, nursery, primary and other schools etc. It has been contended by the Complainants that the certificates obtained by the Respondents are more akin to occupancy certificate as defined under clause 2(zf) of section 2 of RE(RD) Act, 2016.
We have heard the submissions made by both the parties and perused material available on record.
We are of the considered opinion that the issue of jurisdiction of this Authority has to be first decided before going into other merits of the case.
The limited issue at present is whether completion cum occupancy certificates for the project was/were issued prior to the commencement of the RE(RD), Act, 2016 i.e., 1.5.2017 or not.
The words “completion certificate” and “occupancy certificate” are both defined under sections 2(q) and 2(zf) of the RE(RD) Act, 2016, for ready reference, the provisions are restated as under:
‘‘(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.’’
‘‘(zf) occupancy certificate" means the occupancy certificate, or such other certificate by whatever name called, issued by the competent authority permitting occupation of any building, as provided under local laws, which has provision for civic infrastructure such as water, sanitation and electricity’’
Thus, for the purpose of the RE(RD) Act, 2016 a “completion certificate” means the completion certificate, issued by the competent authority certifying that the real estate project has been developed according to the sanctioned plan, layout plan and specifications.
In the present case, it is an admitted position by the Complainant that the completion cum occupancy certificate for their Phase II B was issued on 21.02.2017 by the competent authority, as per the applicable laws, prior to the commencement of the RE(RD) Act, 2016. The said completion cum occupancy certificate clearly states that the site has been inspected and declared fit for occupation and completion certificate is issued for Plot No. 15, (SBM Complex), Shivaji Marg, New Delhi -110015 as per enclosed drawings for Residential Towers 15,16,17,18 & 19 and three level basements (which is Phase II B of the Project). Section 3 of the RE(RD) Act, 2016 excludes the projects, for which completion certificate has been obtained before 01.05.2017, from the ambit of the RE(RD) Act, 2016.
Clause (b) of sub-section (2) of Section 3 of the RE(RD) Act, 2016 reads as under:
‘‘3.(2) Notwithstanding anything contained in sub-section (1), no registration of the real estate project shall be required:
(a)…………..
(b)where the promoter has received completion certificate for a real estate project prior to commencement of this Act.’’
The Hon’ble Supreme Court of India in M/s Newtech Promoters & Developers vs State of UP and Ors, 2021, SCC Online SC 1044 has laid down the law on this issue. The relevant paragraph of the judgment is as below;
“54.From the scheme of the Act 2016, its application is retroactive in character and it can safely be observed that the projects already completed or to which the completion certificate has been granted are not under its fold and therefore, vested or accrued rights, if any, in no manner are affected. At the same time, it will apply after getting the on-going projects and future projects registered under Section 3 to prospectively follow the mandate of the Act 2016.”
The documents filed by the Respondents clearly establish the fact that project was developed in three phases and the completion cum occupancy certificates were obtained for all three phases prior to 01.05.2017 i.e. the date on which RE(RD) Act 2016 came into force. Since, the completion cum occupancy certificates for all the three phases of project “DLF Capital Greens”, were issued prior to 01.05.2017 and Phase II B(in which Complainants apartment falls) was issued on 21.02.2017, the project does not come under the purview of RE(RD) Act, 2016 and hence present complaint cannot be entertained by this Authority.
However, in the interest of justice, we consider it appropriate to direct the Respondents to hand over the possession of the flat/apartment booked by the Complainants in terms of the agreement executed between the two parties on payment of all outstanding dues by the complainants, within a period of 45 days.
The complaint is disposed of accordingly.
No Orders as to costs.