AI Structured Summary
Not yet generated for this judgment
Judgment
Prem Narain, Presiding Member
These appeals have been filed by the appellant M/s. M.H. Matcon against the order dated 29.11.2017 and 09.02.2018 of the State Consumer Disputes Redressal Commission, Punjab (in short 'the State Commission') passed in different complaint cases.
Common facts of these appeals are that the respondents in these appeals are the original complainants who had filed consumer complaints before the State Commission for directing the appellant / opposite party to provide details of the super area and to obtain the requisite certificates like occupancy certificate and completion certificate as well as to pay compensation for delayed possession.
Complaints were duly resisted by the appellant / opposite party. The State Commission has passed similar but separate orders in all these consumer complaint cases. As the facts of these cases, more or less are similar, and similar orders have been passed by the State Commission in these cases, they are being decided together as the issue raised in the appeals are same. F.A. No. 1206/2018 will be taken for examination. This appeal arises from the order dated 29.11.2017 in M.A. Nos. 776 & 1734 of 2017 in C.C. No. 226 of 2017. In this case, the State Commission has passed the following order:-
"44. In view of the reasons and discussion held in Consumer Complaint No.225 of 2017 (Arjun Singh & Ors. v. M/s. M.H. Matcon & Ors.), the Consumer Complaint No. 226 of 2017 (Richa Verma & Anr. v. M/s. M.H. Matcon & Anr.) is allowed against opposite parties No.1 & 2 and the same is dismissed against opposite party No.3. The following directions are issued to opposite parties No.1 & 2:
i) to obtain the requisite sanctions/approvals/permissions from the competent authorities, especially Occupation Certificate and Completion Certificate, as per provisions of PAPRA & Rules;
ii) to complete flat/project in question, as per the promised specifications and standards, as per the brochure/agreement and all the promised facilities/amenities in the project:
iii) to execute the Sale Deed regarding the flat, in question, in favour of the complainants, after furnishing the complete details of the proportionate amount due, if any.In the Sale Deed, details of super area and carpet area of the flat in question should be specifically mentioned.The complainants will submit the draft of the Sale Deed to opposite parties No.1 & 2 within 15 days of the receipt of copy of the order, who shall do the needful within 45 days thereafter;
iv) to provide details of common area, facilities and breakup of the super area and carpet area, in question, to the complainants;
v) to pay compensation at the rate of 5 /- per sq.ft. per month ( 8,800/- per month) for the period of delay in delivery of possession from 30.04.2015 till the issuance of Occupation Certificate and Completion Certificate to opposite parties No.1 & 2 by the competent authority. It is made clear that the out of the said compensation payable by opposite parties No.1 & 2, the remaining amount payable by the complainants towards the price of the flat, in question, shall be adjusted by opposite parties No.1 & 2 and the remaining amount, if any, shall be paid to the complainants;
vi) to pay 55,000/-, as composite compensation and litigation expenses to the complainants."
Aggrieved by the similar orders of the State Commission, these appeals have been filed by the appellant / opposite party.
Heard the learned counsel for the appellant as well as learned counsel for the respondents / complainants.
Learned counsel for the appellant states that opposite party was to develop a project namely "Aero Homes", Village Gazipur, Zirakpur, Mohali, Punjab. The agreement with the complainant and the opposite party was signed in the year 2013. The possession was taken by different complainants in between year 2013 and 2014. All the respondents / complainants have taken possession of their respective flats and in this particular case, the possession was offered on 12.06.2015 and the respondent / complainant has taken the possession on 12.06.2015 itself. Learned counsel argued that complainant filed complaint after two years of taking possession, therefore, complaint was barred by limitation.
It was argued by the learned counsel for the appellant that as per agreement, the appellant / opposite party is liable to pay the compensation for delayed possession only till date of handing over of physical possession. However, the State Commission has passed order for paying this compensation @ Rs.5 /- per month / per sq.ft. from the date of due possession till date of actual possession and even beyond till the date of procuring occupancy certificate and completion certificate. Learned counsel further argued that in the allotment letter, following provision has been made:-
"16. That in the event of any delay in handing over the physical possession of the apartment by us, we assured to compensate you with interest worked out Rs.5 per sq. ft. counted per month which comes to Rs.8800/- (Rupees Eight Thousand Eight Hundred only) for the period of delay in handing over the possession on the amount paid by you till cut-off date, subject to FORCE MAJEURE, however."
It was argued that for this clause, it is only the physical possession which is to be considered and physical possession has already been given to the complainant. The learned counsel also referred to clause 4 of 'Agreement to Sell' which reads as under:-
"4 (a) Delivery of Possession:
i) That Possession of the Apartment is proposed to beDelivered by the Developer to the Purchaser(s) by 30/04/2013 subject to FORCE MAJEURE' circumstances beyond the control of the Developer, and upon registration of sale deed provided all amounts due and payable by the Purchaser(s) under this Agreement have been paid to the Developer within the stipulated period.It is, however, understood between the Parties that the possession of various Blocks/Towers comprised in the complex shall be ready and complete in phases and after the completion, the Apartment shall be handed over to the Purchaser(s) of different Towers.
ii) That in the event of any delay in handing over the physical possession by developer, the.. Developer (s) assure to compensate with interest worked out Rs.5/- per sq.ft counted per month which comes out to Rs.8800/- (the purchaser) for the period of delay in handing over the possession on the amount paid by the purchaser till cut off date, subject to FORCE MAJEURE, however."
Learned counsel states that offer of possession was given on 18.06.2013, but the possession has been actually taken by the complainant on 02.08.2014. Thus, there was no delay in handing over the possession, however, it was the complainant who delayed in actually taking over of the possession for which appellant / opposite party cannot be blamed.
In some of the cases like, F.A. No. 1774/2018 filed against CC No.840 of 2017, the State Commission has passed slightly different order dated 09.02.2018 which reads as under:
"39. In view of above discussion as well as the reasons and discussion held in Consumer Complaint No.839 of 2017, this complaint is allowed against opposite parties No.1 & 2 and the same is dismissed against opposite party No.3. The following directions are issued to opposite parties No.1 & 2:
i) to obtain the requisite sanctions/approvals/permissions from the competent authorities, especially Occupation Certificate and Completion Certificate, as per provisions of PAPRA & Rules;
ii) to execute the Sale Deed regarding the flat, in question, in favour of the complainants, after furnishing the complete details of the proportionate amount due, if any.In the Sale Deed, details of super area and carpet area of the flat, in question, should be specifically mentioned.The complainants will submit the draft of the Sale Deed to opposite parties No.1 & 2 within 15 days of the receipt of copy of the order, who shall do the needful within 45 days thereafter;
iii) to complete flat/project in question, as per the promised specifications and standards, as per the brochure /agreement and all the promised facilities/amenities in the project.
iv) to provide details of common area, facilities and breakup of the super area and carpet area, in question, to the complainants and to provide covered/open car parking space for the exclusive use of the complainants in the said project, as per Clause 2(n) of agreement, Ex.C-6;
v) to pay compensation at the rate of 5 /- per sq.ft. per month (8,800/- per month) for the period of delay in delivery of possession from 30.06.2013 till the issuance of Occupation Certificate and Completion Certificate to opposite parties No.1 & 2 by the competent authority. If any amount towards above said compensation has been paid by opposite parties No.1 & 2 to the complainant, the same shall be adjusted;
vi) to refund the maintenance charges of 29,663/-, charged vide Account Ledger, Ex.C-9, along with interest at the rate of 12% per annum from the date of deposit till realization;
vii) to pay 55,000 /- as composite compensation and litigation expenses to the complainants."
It was stated that as per the agreement, the opposite party has not committed any irregularity in giving possession without obtaining occupancy certificate and completion certificate. Complainants have also taken possession without enquiring about occupancy and completion certificates. Possession was taken without any protest. It has been argued by the learned counsel that there is no justification for awarding compensation for delay after physical possession has actually been taken by the complainants. The issuance of completion certificate and occupancy certificate depends on the authorities who are competent to issue these certificates. The appellant has already applied for the occupancy certificate, however, the same is pending with the competent authority and thus, no deficiency in service can be attributed to the appellant for non-grant of occupancy or completion certificate.
Even after taking over of the possession without occupation certificate, the complainants were satisfied as no protest letter was sent in two years from taking over of the possession in most of the cases. In some cases, complaints have been filed within two years, however in these cases also, no protest letter has been sent before filing the complaint. Complainants very well knew at the time of taking over the possession that occupancy certificate was not granted by that time and still they chose to take physical possession of their respective units. Thus, in a way, they have also broken the law. The learned counsel pointed out that Section 3(2)(J) of the Punjab Apartment and Property Regulation Act,1995 (PAPRA Act) mandates the following:-
(i) not allow person to enter into possession until an occupation certificate required under any law is duly given by the appropriate authority under that law and no person shall take possession of an apartment until such occupation certificate is obtained;"
It is thus clear that the complainants have violated the provision of PAPRA Act by taking the possession without occupancy certificate. For their wrong act they cannot be rewarded under the consumer dispute.
The learned counsel further pointed out that the State Commission has ordered refund of maintenance charges in some of these cases, which is absolutely erroneous as the complainants are duty bound to pay maintenance charges after taking over of the possession of their respective flats.
The learned counsel for the appellant further stated that as the complainants have accepted the possession without occupancy certificate, they have also violated the law and they should not have accepted the possession without the occupancy certificate. Hence, the complainants cannot be given any benefit in terms of compensation for their wrong act. If the deficiency is being attributed to the appellant / opposite party, the complainants are also equally responsible for this deficiency.
On the other hand, learned counsel for the respondents/ complainants stated that the possession given by the opposite party was only a physical possession and it cannot be considered as a legal possession as the occupancy certificate has not been obtained by the opposite party. Until the occupancy certificate has been obtained, construction cannot be treated as per the approved plan. No registry of sale deed can be made without obtaining the occupancy certificate. Thus, this possession is without any legal right on the flats purchased by the complainants. Even if the opposite party has mentioned "physical possession" in different clauses of the agreement, the same cannot be interpreted as physical possession without obtaining the occupancy certificate. "Physical possession" would only mean legal physical possession which is possible only after getting occupancy certificate because neither the PAPRA Act nor RERA Act allows physical possession to be handed over without obtaining the occupancy certificate. The delay in handing over the possession has been accepted by the appellant / opposite party, therefore, the petitioner is liable to pay compensation for delay in possession. The State Commission has only ordered this compensation to be paid as promised by the appellant in the agreement i.e. Rs.5 per sq.ft. per month for the period of delay. The State Commission has considered the period of delay to be from the due date of possession till actual legal possession could be given by the opposite party after getting the occupancy certificate. Thus, there is no error or illegality in the impugned orders passed by the State Commission.
I have carefully considered the arguments advanced by the learned counsel for both the parties and have examined material on record.
As per PAPRA Act or as per the RERA Act the legal possession of a flat can only be delivered to the allottees after obtaining the occupancy certificate which insures that construction has been completed as per the approved plan. In the present case, it is true that physical possession has been given without obtaining the occupancy certificate. It is seen that in the present cases apart from the compensation @ Rs.5/- per sq.ft. per month, no other compensation in the form of interest on the deposited amount has been ordered by the State Commission.
I agree with the argument advanced by the learned counsel for the respondents that the different clauses of the agreement mention only the "physical possession" however, "physical possession" would only mean the delivery of actual physical possession after getting occupancy certificate. This Commission in a similar matter titled as "Vihesh V. Puvadi Vs. M/s. Unitech Ltd. - C.C. No. 362 of 2016 decided on 26.03.2018" has passed the following order:
"9. I have considered the arguments of both the learned counsel and have examined the material on record. The assertion of the opposite party regarding delay due to force majeure conditions is not acceptable as no cogent proof has been filed by the opposite party. In this matter the complainants have already taken the physical possession. As the opposite party is confident of completion of the project and receiving the Occupancy Certificate, Consumer Complaint No.362 of 2016 is disposed of with the following directions:-
"(a) The opposite party shall pay the delay charges @ Rs.5/- per sq.ft. per month as per the agreement to the complainants from due date of possession till date of issue of Occupancy Certificate. The charges if already adjusted shall be counted against this.
(b) The opposite party shall pay interest @6% p.a. on the deposited amount by the allottees with the opposite party before the due date of possession as per the agreement, from 13.12.2010 till the date of physical possession.On the amounts paid after the due date of possession, the interest shall be payable from the date of completion of one year from the date of deposit till the date of physical possession.
(a) Xxxx"
In above complaint case "Vihesh V. Puvadi Vs. M/s. Unitech Ltd." (supra), this Commission has taken a view that delay compensation as per the agreement will extend till the date of getting the occupancy certificate because to pay this compensation is the responsibility of the builder/promoter who has violated the law and has given possession to the allottee without obtaining the occupancy certificate. However, the compensation granted by the consumer forum as interest on the paid amount will only be given upto the date when the physical possession has been actually handed-over to the complainant and he has accepted the physical possession.
Actually, the penalty charges @ Rs.5/- per sq.ft. per month are the charges for deficiency on the part of builder/promoter to give possession with delay. The physical possession as per the agreement would only mean legal possession after obtaining the occupancy certificate. So in fact, this deficiency on the part of the builder/promoter extends till obtaining of the occupancy certificates. Relying on the judgment of this Commission in "Vihesh V. Puvadi Vs. M/s. Unitech Ltd." (supra), I am of the view that the order passed by the State Commission is in consonance with view taken by this Commission, therefore, I do not find any error or illegality in the impugned orders passed by the State Commission, so far as it relates to the award of compensation @ Rs.5/- per sq.ft. per month to the complainants from the due date of possession till date of obtaining the occupancy certificate.
The appellant has also objected to the order of the State Commission for refunding the amount of maintenance charges paid by the complainants, in some cases, which is not supported by any reason or law. Clearly, the maintenance would be payable from the date when complainants have taken physical possession of the flat as the maintenance expenditure will be required for the up keep of the property which has been occupied by the complainants. Hence, order of the refund of the maintenance charges in such case is set aside.
Based on the above discussions, F.A. Nos. 1774/2018, 201/2019, 202/2019, 203/2019, 205/2019, 206/2019, 208/2019, 210/2019, 211/2019, 212/2019, 213/2019, 1204/2018, 1205/2018, 1206/2018, 1207/2018, 1208/2018 and 1302/2018 are dismissed except that if in any of these appeals, refund of maintenance charges has been ordered by the State Commission such order of refund shall stand set aside.