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Judgment
V.K. Jain, J
The complainants/respondents owned some land in Mysore. They entered into a joint agreement with the petitioners on 13.12.2005 whereunder 32% of the built up area was to come to the share of the complainants/respondents, whereas the rest of the area was to come to the share of the petitioners. The entire building was to be constructed within 24 months from the sanction of the plans. The plans having been sanctioned on 4.5.2006, the construction ought to have been completed by 3.5.2008. A grace period of six months was also available to the petitioners. Hence, the building including the portion of the area allocated to the complainants ought to have been handed over to them by 3.11.2008.
The parties then executed a supplementary agreement dated 3.10.2008 whereby the period for completion for the construction was extended by 8 months, meaning thereby that the construction could be completed by 3.6.2009. The petitioners also agreed at that time to pay monthly maintenance charges of Rs.30,000/- PM to the complainants which was to increase to Rs.60,000/- PM, after three months. It was also agreed between the parties that the terrace right on the 3rd floor of the building would go to the share of the petitioners on the petitioners paying a sum of Rs.15 lakhs to the complainants.
The case of the petitioners is that pursuant to the supplementary agreement between the parties, they raised construction on the terrace of the 3rd floor of the building and after completing the construction they also applied for the issuance of the requisite Completion Certificate to the concerned Municipal Corporation. The Completion Certificate, however, was not issued on account of the unauthorized construction raised by the petitioners on the 3rd floor. This according to the petitioners happened pursuant to a complaint made by none other than the complainants with the concerned Municipal Corporation. As a result, the possession of the constructed area which had been allocated to the complainant was not delivered to them. They approached the concerned District Forum with a consumer complaint seeking possession of the constructed area allotted to them along with compensation etc.
The complaint was resisted by the petitioners alleging force majeure circumstances on account of which the construction could not be completed. However, the construction according to the petitioners was completed during pendency of the consumer complaint and possession was offered to the complainants without obtaining the requisite Completion Certificate/Occupancy Certificate.
The District Forum vide its order dated 28.9.2013 directed as under:-
"2. The opposite parties shall complete the construction of building within 3 months from the date of this order and shall give the building of 32% of the share of the complainant and car parking places according to the Agreement dated 3.10.2018 alongwith Competition Report to the complainant. Failing which the opposite parties are bound to pay Rs.5,000/- per day from the date of this order until handing over the complete possession to the complainant.
The opposite parties are bound to pay including interest at 10% annually for the balance amount of Rs.5,70,000/- unencashed the cheques given to the complainant from dated 5.12.2009 till realization of full amount."
Being aggrieved from the order passed by the District Forum, the petitioners approached the concerned State Commission by way of an appeal. The said appeal having been dismissed, the petitioners are before this Commission.
It is not in dispute that even in terms of the supplementary agreement executed between the parties, the construction was required to be completed by 3.6.2009. It is an admitted position that the construction was not completed by that date and it came to be completed only during pendency of the consumer complaint before the District Forum. The learned counsel for the petitioners states that the said delay happened on account of the complainants seeking incorporation of some additional features which took some time to incorporate. Be that as it may, the fact remains that the petitioners had not been able to complete the construction within the time agreed by them with the complainants and even after completing the construction, they could not have delivered legal possession of the constructed area to the complainants, unless and until the requisite Occupancy Certificate/Completion Certificate was obtained from the concerned Municipal Corporation. The Completion Certificate/Occupancy Certificate has not been issued by the Corporation on account of the additional construction raised by the petitioner on the 3rd floor of the building. Admittedly, the construction on the 3rd floor was not got approved by the petitioners from the concerned Municipal Corporation. Though the contention of the petitioners is that the said additional construction was compoundable, that plea has not been accepted by the Municipal Corporation and the petitioners have already filed a Writ Petition before the Karnataka High Court against the Municipal Corporation. That Writ Petition is still pending. In my opinion, the petitioners ought to have taken prior approval from the concerned Municipal Corporation before carrying out additional construction after entering into the supplementary agreement with the complainants. By accepting Rs.15 lakhs from the petitioners and permitting them to raise the construction on the 3rd floor/terrace floor, the complainants did not, in any manner, forego their right to timely possession of the constructed area which had been allocated to them under the joint agreement executed between the parties. The supplementary agreement executed between the parties cannot be interpreted to mean that the complainants had permitted the petitioners to raise construction on the 3rd floor/terrace floor even if such a construction was not allowed under the Municipal Bye-laws. The only effect of the supplementary agreement was that the petitioners could raise the construction on the terrace floor/3rd floor which otherwise belonged to the complainants/respondents, but such construction should have been raised only after obtaining the requisite sanction from the Municipal Corporation.
It is therefore, evident that the Occupancy Certificate/Completion Certificate has been denied to the petitioners only account of their own illegal act in raising the additional construction on the 3rdfloor/terrace floor without obtaining the prior approval of the Municipal Corporation. The complainants, in my opinion, cannot be blamed for the petitioners being placed in a situation where the Occupancy Certificate/Completion Certificate has been denied to them by the Corporation. Nothing prevents the petitioners from demolish the illegal construction and then obtaining the requisite Occupancy Certificate/Completion Certificate. They are not willing to adopt such a course as is evident from their having already filed a Writ Petition against the Municipal Corporation.
For the reasons stated hereinabove, I am of the view that the order passed by the Fora below does not call for any interference by this Commission in exercise of its revisional jurisdiction particularly when the compensation awarded to the petitioners became payable only in the event of the petitioners not giving possession after obtaining the Completion Certificate within three months of the order passed by the District Forum. As far as the direction for payment of the balance amount of Rs.5,70,000/- with interest is concerned, that cannot be faulted with since the said amount was payable to the complainants in terms of the supplementary agreement executed between the parties and had not been paid on account of the payments of the cheques having been stopped by the petitioners.
For the reasons stated hereinabove, the revision petition is dismissed with no order as to costs.