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Judgment
A complaint was filed in FORM ‘M’ on 11.02.2021 by Sh. Pramod Kumar Jain (hereinafter referred to as “Complainant”) stating that in the year 2016 he approached “M/s Parsavnath Landmark Developers Pvt. Ltd.” (hereinafter referred to as “Respondents”) for booking of an apartment in their project “La Tropicana Khyber Pass, Civil Lines”, Delhi.
From perusal of records, it is seen that while complaint in Form ‘M’ was filed only by Mr. Pramod Kumar Jain, the other documents were seen signed by Mr. Pramod Kumar Jain and Mrs. Anu Jain. The Ld. Counsel for the Complainant submitted that although the subject flat has been booked in the name of Mr. Pramod Kumar Jain and Mrs. Anu Jain, the Complainant would like to continue with the complaint only in his name.
The Complainant has sought following reliefs:
Punish the Respondents for non-adherence to section 3 of the RE (RD) Act, 20161 with respect to the project in question and impose a penalty;
Impose heavy penalty upon the Respondents under section 14 of the Act;
Direct Respondents to stop all ongoing construction as per changed plan without obtaining consent of 2/3rd allottees in the project;
Grant compensation of Rs.1,00,00,000/- (Rupees One Crore Only) for harassment, mental agony and hardship caused due to unfair trade practice and illegal conduct of Respondents.
A preliminary hearing in this case was held on 10.03.2021 and a notice to the Respondents was issued on same date.
The matter was heard on 10.03.2021, 07.04.2021, 24.06.2021, 20.07.2021, 11.01.2022 and 24.02.2022. The Respondents filed their reply on 12.07.2021 and a copy of Hon’ble National Consumer Disputes Redressal Commission (hereinafter referred to as “NCDRC”) order dated 16.02.2022 on 18.02.2022. The Complainant filed his written submission on 25.01.2022.
The Respondents filed an application for rejection of the complaint under section 37 read with section 35(2) of the RE(RD) Act, 2016 read with section 151 of the Code of Civil Procedure, 1908 on 08.07.2021. As per the contents of the application, the Respondents relied upon orders dated 30.04.2019 and 11.09.2019 passed by the Hon’ble NCDRC in CC No. 148 of 2014 and Memorandum of Understanding (MoU) entered into between the Promoter and RWA of the allottees.
The Complainant filed reply to above application and submitted that the said MoU is not binding upon him and complaint for violation of Section 3 of the RE(RD) Act, 2016 can be filed by any individual irrespective of person being an allottee in the concerned project.
We heard the arguments and perused the records. For the sake of convenience, the arguments and submissions made on behalf of the Respondents are summarized as under:
M/s Parsavnath Developers Ltd. got project land on the lease from Delhi Metro Rail Corporation Limited (DMRC) vide allotment letter dated 08.03.2004.
Due to, inter se, dispute between the government agencies i.e., DMRC and Land and Development Office, Govt. of India (L&DO) the project got delayed. For the resolution of certain disputes, the LA Tropicana Residents Association (LTRA) approached Hon’ble NCDRC. A Memorandum of Understanding (MoU) was executed between the Promoter and LTRA before the Hon’ble NCDRC. The MoU has further amended vide Amended Agreement dated 27.10.2020 (hereinafter referred to as “Addendum”) and Consent Application.
The MoU dated 30.04.2019, since has been seen ratified by the Hon’ble High Court of Delhi in the suit filed by LTRA bearing number CS (OS) No. 2030 of 2014 titled “La Tropicana Resident Association vs. Parsavnath Landmark Developers Pvt. Ltd.” and consequently vide order dated 13.08.2019, the Hon’ble High Court of Delhi was pleased to decree the said suit in terms of MoU.
As per the terms and conditions of the MoU dated 30.04.2019, Addendum 27.10.2020 and Consent Application, the timelines for completion of the project stand revised and the remaining construction work of the project is now to be completed in accordance with the revised timelines as mentioned in MoU dated 30.04.2019, Addendum dated 27.10.2020 and Consent Application. The Hon’ble NCDRC has also taken note of these documents in their orders dated 30.04.2019, 11.09.2019 and 28.10.2020. The Hon’ble NCDRC has also stated in their order dated 28.10.2020 that the Addendum dated 27.10.2020 shall be binding and applicable on all the allottees of the project. The construction of the said project is being carried out in terms of MoU, Addendum and Consent Application and any violation of the conditions of these documents would amount to contempt of the Court.
The Hon’ble Supreme Court of India vide orders dated 29.01.2021 and 09.04.2021 has upheld the judgement passed by the Hon’ble NCDRC and the Complainant is bound by the terms of the MoU dated 30.04.2019, Addendum dated 27.10.2020 and Consent Application.
Analysis and consideration:
The first issue for consideration before us is whether the Respondents by not registering their project under the RE (RD) Act, 2016 have violated the provisions of the RE (RD) Act, 2016?
Section 3 (1) of the RE (RD) Act, 2016 provides that 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 the Act. Further, as per the first proviso, 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 the Act.
The Respondents had moved an application for registration of their project “LA Tropicana, Phase-1” on 31.07.2017 which was rejected by this Authority vide order dated 11.08.2020 due to non-filing of sanctioned revised building plans which is a mandatory requirement to seek registration of any project under the provisions of the RE (RD) Act, 2016. This shows the bona fide intention on the part of Respondents for complying with section 3 (1) of the RE (RD) Act, 2016. Later, the Respondents got the revised building plans sanctioned by the Competent Authority and applied once again for registration of their project on 02.01.2021.
The Authority has considered the orders of Hon’ble NCDRC and perused the files pertaining to registration of projects ‘Parsvnath LA Tropicana Phase-I, Phase-II and Phase-III’. All these projects are seen registered as standalone projects on 07.03.2022 with the Authority registration certificates issued on 16.03.2022. Therefore, Respondents cannot be held liable for violation of Section 3 of the RE (RD) Act, 2016.
The second issue before this Authority is whether the Respondents have violated section 14 of RE(RD)Act, 2016 by not obtaining the consent of 2/3rd allottees. Section 14 reads as under:
“Section 14. Adherence to sanctioned plans and project specifications by the promoter.-
(1)The proposed project shall be developed and completed by the promoter in accordance with the sanctioned plans, layout plans and specifications as approved by the competent authorities.
(2)Notwithstanding anything contained in any law, contract or agreement, after the sanctioned plans, layout plans and specifications and the nature of the fixtures, fittings, amenities and common areas, of the apartment, plot or building, as the case may be, as approved by the competent authority, are disclosed or furnished to the person who agree to take one or more of the said apartment, plot or building, as the case may be, the promoter shall not make-
(i)any additions and alterations in the sanctioned plans, layout plans and specifications and the nature of fixtures, fittings and amenities described therein in respect of the apartment, plot or building, as the case may be, which are agreed to be taken, without the previous consent of that person:
Provided that the promoter may make such minor additions or alterations as may be required by the allottee, or such minor changes or alterations as may be necessary due to architectural and structural reasons duly recommended and verified by an authorised Architect or Engineer after proper declaration and intimation to the allottee.
Explanation. - For the purpose of this clause, "minor additions or alterations" excludes structural change including an addition to the area or change in height, or the removal of part of a building, or any change to the structure, such as the construction or removal or cutting into of any wall or a part of a wall, partition, column, beam, joist, floor including a mezzanine floor or other support, or a change to or closing of any required means of access ingress or egress or a change to the fixtures or equipment, etc.
(ii)any other alterations or additions in the sanctioned plans, layout plans and specifications of the buildings or the common areas within the project without the previous written consent of at least two-thirds of the allottees, other than the promoter, who have agreed to take apartments in such building.
Explanation. - For the purpose of this clause, the allottees, irrespective of the number of apartments or plots, as the case may be, booked by him or booked in the name of his family, or in the case of other persons such as companies or firms or any association of individuals, etc., by whatever name called, booked in its name or booked in the name of its associated entities or related enterprises, shall be considered as one allottee only.
(3)In case any structural defect or any other defect in workmanship, quality or provision of services or any other obligations of the promoter as per the agreement for sale relating to such development is brought to the notice of the promoter within a period of five years by the allottee from the date of handing over possession, it shall be the duty of the promoter to rectify such defects without further charge, within thirty days, and in the event of promoter's failure to rectify such defects within such time, the aggrieved allottees shall be entitled to receive appropriate compensation in the manner as provided under this Act.”
The Ld. Counsel for the Respondents submitted that as per the MoU dated 30.04.2019, Addendum dated 27.10.2020 and consent application the construction work of the project is being undertaken in accordance with the revised timelines. He submitted that Hon’ble NCDRC has taken all these three documents on record and ordered that these shall be binding and applicable on all the allottees of the project. He argued that delay in completion of the project is on account of inter-se dispute between the government agencies which could be resolved in the year 2019. Now, as per Consent Application moved before Hon’ble NCDRC decided and allowed on 16.02.2022, all phases of the projects are required to be completed by 31.03.2023.
We note that Hon’ble NCDRC passed following orders on 30.04.2019 and 16.02.2022:
30.04.2019
“We have gone through the MOU and find that all the issues/grievances raised, or which may arise in future, by the Complainant have been settled between the Parties. Therefore, in our considered opinion, we direct that this settlement (MOU) shall be applicable to and binding on all the allottees of LA Tropicana Resident Welfare Association, Magazine Road, Khyber Pass, Delhi-110054 and even the persons, who may be subsequently allotted flats in the said Project and no Consumer Fora, created under the Consumer Protection Act, 1986 shall entertain any Complaint or any proceedings in respect of this Project. The amount in the dedicated accounts as mentioned in the MOU of different phases will be converted in Escrow Account, which shall be operated by two representatives of the Parties, i.e., either of one of the Joint Signatories of LA Tropicana Resident Welfare Association, who have signed the MOU, and a representative of M/s Parsvnath Landmark Developers Pvt. Ltd.”
16.02.2022
“Terms of MoU/Addendum Agreement/Consent Application will be applicable to all allottees of the project and it will be considered as their consent for any approval /re-approval of plans from competent authority as per terms of MoU/AA/Consent and specific consent for RERA registration of the project.”
We have gone through the contents of aforementioned MoU dated 30.04.2019, Addendum dated 27.10.2020 and Consent Application and also orders of Hon’ble NCDRC dt. 30.04.2019 and 16.02.2022. Ld. Counsel for the Complainant though argued that the Complainant is not a party to MoU signed between LTRA and the promoter and did not give his consent to LTRA on any issue, the Respondents in reply mentioned that the Complainant has been a member of the association which can be seen at serial no. 10 of the list of members of LTRA as on 30.04.2019 annexed to the MoU. In our opinion, orders of Hon’ble NCDRC are applicable to all allottees including the Complainant so far as consent of 2/3rd allottees under section 14(2)(ii) of RE(RD) Act, 2016 and revised date for completion of all three phases of project are concerned. It is pertinent to mention here that Complainant has not alleged violation of section 14(2)(i) in which case consent of individual allottee is mandatory.
Accordingly, the non-compliance of sections 3 and 14 of the RE(RD)Act, 2016 on the part of the Respondents is not established. The complaint is accordingly disposed of.
No orders as to costs.
File be consigned to Record Room.
Footnotes
- 1.The Real Estate (Regulation and Development) Act, 2016 or Act