Orissa High Court
Kalpana Sahoo vs Metro Builders Limited & on 7 August, 2025
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
AFR M.S.A No.17 of 2024
Kalpana Sahoo .... Appellant
Mr. S. K. Mishra, Senior Advocate
-Versus-
Metro Builders Limited & .... Respondents
another Mr. S.S. Das, Senior Advocate for Respondent No.1 CORAM:
JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:07.08.2025
1. Instant appeal filed under Section 58 of the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as 'the Act') read with Section 100 of the Civil Procedure Code, 1908 is at the behest of the appellant assailing the correctness, legality and judicial propriety of the impugned decision by order dated 22nd November, 2023 of the learned Odisha Real Estate Appellate Tribunal, Bhubaneswar (shortly as 'the OREAT') in OREAT Appeal No.58 of 2022 disposed of on 22nd November, 2023 confirming the order dated 18 th January, 2022 of the learned Odisha Real Estate Regulatory Authority, Bhubaneswar (hence called as 'the RERA') arising out of Complaint Case No.243 of 2021 on the grounds inter alia that the decisions of the learned authorities below having declined action for demolition of the structure raised in the Ground floor of the apartment for being used commercially MSA No.17 of 2024 Page 1 of 27 restoring it to the original condition are legally untenable and hence, liable to be interfered with and set aside.
2. A copy of the impugned order dated 22nd November, 2023 in OREAT Appeal No.58 of 2022 is at Annexure-1.
3. The case of the appellant is that an agreement was executed between the land owner and respondent builder for construction of a multi-storied high rise building to be used as commercial-cum-residential complex in the year, 2010, according to which, it was agreed upon to execute the sale deeds in favour of the intending purchasers transferring the flats, commercial units, parking space together with undivided interest in the land inclusive of the right of use and enjoyment of common area, amenities etc. provided in the complex. It is pleaded that under such sale deeds, the land owner shall only transfer the proportionate undivided interest in the land and the respondent builder was to transfer and convey the readily built flats, units, commercial and parking space. According to the appellant, a sale deed was executed between her and the promoter and a memorandum of declaration was executed on 16th July, 2015 between the latter and the land owner pertaining to the allotment of the flats and units confirming absolute title in respect thereof inclusive of parking space in the complex styled as 'Metro Avenue'. It is further pleaded that respondent builder has made extensive alteration and changes in the apartment in deviation of the approved plan of the Cuttack Development Authority (CDA) and the same is in contravention of Section 14(2)(i) and (ii) of the Act. It is claimed that as per the approved plan of the CDA, the Ground MSA 17 of 2024 Page 2 of 27 floor with apartment is for parking and road and accordingly, a portion of First floor is reserved for being used for commercial purpose and other floors are exclusively meant for residential purposes but respondent builder violating the plan has undertaken alteration in the Ground floor by re-structuring it for commercial use without any approval and consent of the residents of the apartment. As a result of such illegality being committed, the appellant would further plead that a notice was issued to the Managing Director of Metro Builders on 6th September, 2021 by the Deputy Commissioner, Cuttack Municipal Corporation (CMC) under Section 91(1) of the Odisha Development Authorities Act, 1982 (in short 'the ODA Act') to show cause as to why the unauthorized construction should not be demolished or removed. It is further claimed that the Deputy Commissioner, CMC by a letter dated 8th September, 2021 instructed the IIC of local P.S. to take immediate action against the builder but the unauthorized constructions continued despite such notice and at last, the complaint was filed alleging violation of the plan making alteration in terms of Section 31 of the Act registered as C.C. No.243 of 2021 and it was disposed of on 18 th January, 2022.
The complaint was dismissed ex parte against the respondent builder by the learned RERA with the conclusion that the CDA has the jurisdiction to entertain such grievance of the appellant vis-a-vis violation of the sanctioned plan. The further conclusion of the RERA is that Section 14 of the Act would have application, if the project is an ongoing one but it was completed prior to the commencement of the Act, hence, the complaint is not maintainable. The said decision of the RERA MSA 17 of 2024 Page 3 of 27 was challenged in OREAT Appeal No.58 of 2022 and it was disposed of on 22nd November, 2023 with a finding that there is no legal infirmity to warrant any interference on the premise that the flats were delivered to all the allottees in 2016 prior to commencement of the Act with effect from 1st May, 2017 and the complaint was filed nearly after five years of such occupation without any convincing reasons assigned.
4. With the claim that no completion certificate has been furnished by the builder and that the CDA has not issued any such occupancy certificate either, it is pleaded by the appellant that learned authorities below denied action for the deviation in plan and unauthorized construction in the Ground floor of the apartment with a conclusion that the subject matter in dispute lies within the domain of the CDA is grossly erroneous. Since, there is clear violation of Section 14(2)(i) and (ii) of the Act leading to the deviation of the sanctioned plan and specifications of the building, the respondent builder was required to necessarily adhere thereto and comply and as there has been no completion certificate submitted and received by the CDA, it is further claimed that the complaint was to be duly entertained with directions issued preventing the unauthorized construction but it was dismissed and again confirmed by the learned authority below disposing of OREAT Appeal No.58 of 2022.
5. Heard Mr. Mishra, learned Senior Advocate appearing for the appellant and Mr. Das, learned Senior Advocate appearing for the respondents.
MSA 17 of 2024 Page 4 of 276. The learned OREAT answered the following questions, such as:
(i) Whether the complaint is maintainable under the Act?
(ii) Whether the complainant has any cause of action to file the same?
(iii) Whether the respondent builder has violated the sanctioned plan and raised construction in the Ground floor?
(iv) Whether the complainant is entitled to any relief as prayed for?
7. Learned RERA held that there is no evidence to show that the project is still ongoing, hence, the same does not require any registration under the Act and that apart, the complainant purchased the flat in 2016, the year in which, the project was completed with the possession delivered and as the CDA has granted the permission to raise construction for commercial and residential purpose, in case of any deviation therefrom, the claim in that regard shall have to be taken judicial notice of by the said authority and since, the Act does not apply to the project, any such violation vis-à-vis the sanctioned plain in terms of Section 14 thereof cannot be taken cognizance of. The aforesaid decision vide Annexure-3 stood confirmed by the learned OREAT, while disposing of the appeal filed under Section 44 of the Act.
8. Mr. Mishra, learned Senior Advocate appearing for the appellant submits that due to non-submission of completion MSA 17 of 2024 Page 5 of 27 certificate as contemplated in Section 3 1st proviso and as the violation of the sanctioned plan was challenged amongst other grounds, the complaint was maintainable. Since, no such occupancy certificate was issued for the project in question in view of the information obtained as per the Right to Information Act, according to Mr. Mishra, learned Senior Advocate, the same strongly suggested that the project is an ongoing one for the purpose of the Act and that apart, the consent of the owners of the flats was not taken for changing the sanctioned plan, which is in violation of Section 14 of the Act, inasmuch as, sub-section(2) thereof would have an overriding effect, nevertheless, the promoter may make such minor additions or alterations as may be required by the allottees or necessary due to architectural and structural reasons duly recommended and verified by an authorized Architect or Engineer after proper declaration and intimation to all the allottees.
9. Before considering the response and reply of the respondent builder and submission of Mr. Das, learned Senior Advocate appearing for them, the Court is inclined to formulate the following substantial questions of law:
(i) Whether learned OREAT was justified in upholding the order dated 18th January, 2023 at Annexure-3 of the learned RERA in C.C. No.243 of 2021 affirming dismissal of the complaint filed by the appellant?
MSA 17 of 2024 Page 6 of 27(ii) Whether learned OREAT ignoring the materials placed on record with such clinching evidence was correct in dismissing the complaint denying exercise of powers invocable under Section 44(6) of the Act by calling for the records from the RERA and also the CDA in view of non-submission of completion certificate?
(iii) Whether, it was justified on the part of the learned OREAT to dismiss the appeal on the ground of delay and that absence of cause of action under the Act despite respondent builder deviated the construction from its original sanctioned plan, and
(iv) Whether the learned OREAT was just and proper in accepting the consent letters of 32 flat owners contrary to the law?
10. Mr. Das, learned Senior Advocate for the respondent builder would submit that there is no any error or illegality committed by the learned authorities below and rightly, the complaint was held to be not maintainable and dismissed on the ground of delay and for the fact that the deviation, if any, alleged by the appellant is cognizable by the CDA. It is contended that the project was completed long back in 2016 and nearly after five years, the complaint was filed before the learned RERA. Since, the Act is not applicable in respect of concluded projects, the learned authorities below correctly dismissed the complaint with a conclusion that the sanctioned plan, if deviated from by the respondent builder, the project since not an ongoing one cannot be entertained as per the Act, MSA 17 of 2024 Page 7 of 27 all the more when, the allottees were delivered possession of the flats in 2016 prior to the commencement of the Act in 2017. An order of this Court in MSA No.8 of 2021 dated 24 th April, 2023 is cited by Mr. Das, learned Senior Advocate to further contend that the complaint could not have been entertained by the learned RERA and hence, the impugned order vide Annexure-3 and was finally confirmed as per Annexure-1 is not to be disturbed. Such an argument is advanced by Mr. Das, learned Senior Advocate referring to the decision of the Apex Court in M/s. Newtech Promoters and Developers Private Limited Vrs. State of U.P. and others 2021 SCC OnLine SC 1044. Essentially, the very challenge to the maintainability of the complaint is with the plea that the project is a concluded one, hence, not amenable to the Act.
11. The following at the grounds in the appeal, such as:
(i) For that, impugned order dated 22.11.2023 in OREAT Appeal No.58/2022 arising out of C.C. No.243/2021 of ORERA, Bhubaneswar passed by OREAT dated 22.11.2023 in confirming the order of the Adjudicating Authority dated 18.01.2022 stating that there is no infirmity or illegality to warrant any interference to order for demolition of the restructuring of the Ground floor of the Apartment to commercial purpose is contrary to law and against the weight of evidence on record.
(ii) For that, the Appellate Authority has grossly failed to frame the issue at hand when the appellant who MSA 17 of 2024 Page 8 of 27 represents the owners of the flat/apartment in Metro Avenues agitated such issue primarily on the ground that the promoter/builder/respondent has carried out alteration in the sanctioned plan/layout plan in violation of Section 14 of the Act.
(iii) For that the real issue in adjudication in the instant case is that the consent of 2/3rd allottees when addition/alteration is a major change to the parking space (which cannot be deviated in any manner).
(iv) For that, the learned RERA and the Tribunal, despite repeated requests had not called for the records from the Cuttack Development Authority nor the Municipal Corporation and hence, the learned Tribunal has failed to exercise power conferred under Section 45(6) of the Act to call for requisite records for the purpose of testing the judicial propriety of order passed of the RERA.
(v) For that, the RTI reports of the Cuttack Development Authority clearly states that there is no occupancy certificate issued by it furthermore asserting that no completion certificate has been submitted for the said project, which clearly justifies and leads to an impression that the project is ongoing.
(vi) For that, the promoter has completely acted in contravention to Section 3(1) 1st proviso of the Act.MSA 17 of 2024 Page 9 of 27
(vii) For that, the learned authority below has not applied its mind in respect of the non-registration of the project despite of the fact that completion certificate has not been issued and has consequentially not made the promoter liable for any punishment under Section 59 of the Act.
12. The learned RERA, considering the complaint, discussed the issues point wise and ultimately, reached at a conclusion that the CDA has jurisdiction to entertain the plea regarding violation of the sanctioned plan and hence, the complainant is required to approach such authority and ultimately, dismissed the same against the respondent builder. It has been held therein that as per Section 3(1) of RERA, the projects that are ongoing on the date of commencement of the Act and for which, the completion certificate has not been issued, the promoter shall have to apply for registration of the projects within three months from the date of commencement of the same but in view of sub-section 3(1)(b) thereof, no such registration of the real estate project is necessary, where the completion certificate has been issued prior to the law being enforced. In fact, the RERA was of the conclusion that there is no such evidence to show that the project is still ongoing and hence, to be registered under the Act and as the project was shown to have been completed in 2016 and thereafter, possession was delivered, it was found fit for human living and in so far as, the permission to raise construction for residential and commercial purposes, it was granted by the CDA, however, the complainant failed to clarify the extent of area MSA 17 of 2024 Page 10 of 27 constructed for being used commercially and for such other reasons, concluded that there is no clear evidence regarding violation of sanctioned plan as neither him nor any other allottees adduced evidence in support of such violation and ultimately, held that in case of violation of the sanctioned plan, the competent authority would be the CDA And such decision has been affirmed by the learned OREAT vide Annexure-1.
13. Referring to the counter affidavit, it is contended by Mr. Das, learned Senior Advocate for the respondents that the appeal filed under Section 58 of RERA is not maintainable as the appellant is a home buyer of the project purchased much prior to the commencement of the Act i.e. on 1st May, 2017 and furthermore, the project was already completed before the above cut-off date. It is claimed that the appellant filed the complaint under Section 31 of the RERA not against M/s. Metro Builders Private Limited, which is a company and a juristic person and therefore, the same is not maintainable. The contention is that the appellant and five others had earlier approached the CDA in 2024 claiming themselves to represent the flat owners to initiate action against the Managing Director of Metro Builders to restrain the latter from any such unauthorized constructions over the case land and thereafter, therein, direction was issued by the competent authority under the ODA Act and an Amin was engaged to hold an enquiry and report. It is alleged that there is no society registered under the Act, hence, the representation carrying the allegation cannot be constituted as allegation of the apartment owners or of a society, however, the UC proceeding was initiated upon such MSA 17 of 2024 Page 11 of 27 allegation. It is also alleged that once again, a similar complaint was lodged before the CMC on 31st December, 2024 and likewise, an enquiry was directed. Mr. Das, learned Senior Advocate submits that the complainant does not have the locus standi to represent the other flat owners and therefore, the action initiated against the respondents could not have been entertained by the learned authorities below. It is claimed that on 13th January, 2025, the Assistant Town Planner, CDA furnished the enquiry, wherein, it is also observed that the society, namely, Metro Avenue Residential Welfare Society has been approved and recognized but it found from the record that the matter of regularization was placed before a Committee and finally regularized through compounding on 24th May, 2023 and thereafter, the occupancy certificate was issued to the complainant on 30th November, 2023 and on 17th January, 2025, the proceeding in UC Case No.103 of 2024 was dropped taking note of the fact that the earlier UC cases involved similar issues and while claiming so, a copy of the said order as at Annexure-A/4 of the counter is referred to. It is alleged that the appellant suppressed the fact regarding disposal of UC Case No.41 of 2021 which may be termed as a fraud perpetuated on the Court and against the respondents as it was also dropped by order dated 5th April, 2024 by the Deputy Commissioner (U.C. Court), CMC. The submission of Mr. Das, learned Senior Advocate is that the entire effort of the appellant is to make repeated allegations with initiation of UC proceedings and ultimately, the complaint was filed but it had the same fate and affirmed by the learned OREAT finally. With the above contention, Mr. Das, learned Senior Advocate MSA 17 of 2024 Page 12 of 27 would submit that the impugned orders at Annexures-1 and 3 are not to be disturbed as it has been rightly concluded that the real estate project of the respondents not to an ongoing one but had been completed before the commencement of the Act.
14. Section 2(q) of the Act defines completion certificate, which means, a certificate issued by the competent authority certifying that the real estate project has been developed according to the sanctioned plan, lay out plans and specifications as approved under the law. According to Section 3(1), 1st proviso, all such projects that are ongoing on the date of commencement of the Act and for which, completion certificate has not been issued, the promoter shall make an application to the authority concerned for registration of the project within a stipulated period which means such registration is necessary, only if, the project is ongoing and not completed as on the cut-off date. The term 'occupancy certificate' is defined in Section 2(zf) of the Act and it does mean, any such certificate issued by the competent authority permitting occupation of any building as provided under the local laws which has provision for civic infrastructure, such as, water, sanitation and electricity. As per Section 2(zq) of the Act, the sanctioned plan means the site plan, building plan, service plan, parking and circulation plan, landscape plan, layout plan, zoning plan and such other plan inclusive of structural designs, if applicable permissions, such as, environment permission and such other permissions, which are approved by the competent authority prior to the commencement of the real estate project. On a reading of the MSA 17 of 2024 Page 13 of 27 above provisions, it is made to understand that upon issuance of a completion certificate by the competent authority in respect of real estate project developed according to the sanctioned plan and other specifications, occupancy certificate is issued by the local authority, only if all such provision for civic infrastructure is in place.
15. In the case at hand, the appellant alleges that the project was not completed prior to the commencement of the Act but is ongoing one and therefore, the learned authorities below ought to have considered the complaint and the facts alleged therein for appropriate action but it has not taken place, as a result, the respondents are let off despite violation since the project is not completed as per sanctioned plan. The contention of Mr. Mishra, learned Senior Advocate for the appellant is that the project required registration under the Act and the defects pointed out by the appellant and others alleging violation to the sanctioned plan of the project was to be taken notice of by learned authorities below but unfortunately, the complaint was dismissed. It is reiterated by Mr. Das, learned Senior Advocate that no illegality has been committed in dismissing the complaint and appeal as there is a definite conclusion reached at to the effect that the case is not of an ongoing project but a concluded one prior to the commencement of the Act.
16. The completion certificate serves as a proof that the building has been constructed according to the approved plan, while the occupancy certificate confirms that the building is safe and fit for occupancy. It means that without a completion MSA 17 of 2024 Page 14 of 27 certificate, the certificate of occupancy is not to be issued as the building cannot be legally occupied. In other words, the completion certificate verifies that the building is constructed as per the plan approved and sanctioned which is a pre- requisite for obtaining the occupancy certificate which signifies that the building is safe and fit for use by the buyers. The completion certificate is, in fact, a necessary step in the process of obtaining the certificate of occupancy. It may be said that without an occupancy certificate, a building is considered illegally occupied and the buyer and owner of the property could face legal complications and penalty. In case, there is valid completion certificate granted and it is in respect of a project completed before the commencement of the Act, such project would not fall within the ambit of the law. If before the cut-off date, any such completion certificate is issued, the project shall have to be held as a completed one. It has to be understood that a project is not amenable to the Act, if a completion certificate is issued before its commencement w.e.f. 1st May, 2017. One is also required to appreciate the distinct nature of the certificates issued while the completion certificate signifies the fact that the real estate project had been developed according to the sanctioned and lay out plans as approved by the competent authority, whereas, the occupancy certificate is issued for occupation of a building having all the amenities making it fit for human living. An occupancy certificate is granted as per Section 20A of the ODA Act, consequent upon, receipt of a completion certificate issued under Section 20 thereof. According to Section 20 of the Act, every permission under the Act shall remain valid up to 3 MSA 17 of 2024 Page 15 of 27 years, during which period, completion certificate from a registered Architect or Engineer or a person approved by the authority shall be submitted and if, the same has not been done, the permission shall have to be revalidated before the expiration of the period and the same shall be subject to the rules and regulations in force. As earlier stated, only upon receipt of the completion certificate, the authority concerned under the Act is to consider grant the occupancy certificate in such form prescribed authorizing occupation of a building or the premises in part or full on payment of such fee and on such terms and conditions as may be stipulated. So, it is necessary that, before an occupancy certificate is issued as per Section 20A of the Act, a completion certificate in respect of a project must have been issued by the authority concerned.
17. The moot question is, whether, the alleged project of the respondents is an ongoing one or with the issuance of completion certificate prior to the cut-off date, it had been completed and hence, not amenable to the Act? Admittedly, the project of the respondents has not been registered. The commencement of the project is before the Act came into force. Whether, it was still an ongoing project as on 1st May, 2017 is relevant, while considering the plea of the appellant. After having discussed the relevant provisions of the Act and on a conjoint reading of the same, it is clear that what is material is the date of issuance of the completion certificate. The legality of the completion certificate is not a matter to be considered under the Act as the legislative intent is clear and conspicuous. A project should be complete as on the date of MSA 17 of 2024 Page 16 of 27 the commencement of the Act in order to take it out from the purview of registration. So, the completion certificate is a proof of closure of the project as far as the Act is concerned. When it is proved that the completion certificate is received before the Act arrived, the project is not liable to be registered and in such a case, further enquiry as to whether the project is ongoing or not is unwarranted. The manner in which the completion certificate is issued is the look out of the local authority and as earlier stated, it is granted under Section 20 of ODA Act. The Court is also of the view that issuance of an occupancy certificate is not the determinative factor to consider whether a project is ongoing or a concluded one. It is at the cost of the repetition held that issuance of a completion certificate seals the fate to make it amenable to the Act.
18. In the case of the respondents, the complaint is received from the appellant in respect of a project said to have been completed in 2016 with delivery of possession. It has been concluded by the learned OREAT that all 37 units of the project have been delivered in 2016 prior to the commencement of the Act and the allottees including the appellant have been staying ever since then. It is made to understand from the impugned orders of learned authorities below that the flats were delivered to the allottess in 2016 and in such view of the matter, the building plan of the project was accorded in 2011 and as per the respondents, the construction was completed in 2014 with delivery of all the flats to the allottees accomplished in 2016, who are in peaceful possession of the same including the appellant. After the occupation of the MSA 17 of 2024 Page 17 of 27 flat, as it appears, the complaint was filed after a lapse of five years from the date of occupancy with the allegation by the appellant that there is a violation of the sanctioned plan. It is also made to understand that the respondents obtained the letters of 32 buyers/allottees and produced the same along with the parking agreements with a reply affidavit before the learned OREAT.
19. In so far as, the decision in M/s. Newtech Promoters and Developers Private Limited (supra) is concerned, the Apex Court while considering a batch of appeals at the instance of promoter/real estate developers assailing certain provisions of the Act discussed in detail and ultimately, held and observed that the law is intra vires as the legislation by the parliament is intended to bring within the fold of the statute the ongoing real estate projects in its wide amplitude and used the term converting and adjusting building or a part thereof into apartments including every kind of developmental activity either existing or upcoming in future under Section 3(1) of the Act and the intention is loud and clear that the Legislature by necessary implication and without any ambiguity included the projects which are ongoing and in cases, where completion certificate has not been issued under the Act.
20. Turning to the facts of the case, the dispute is related to alteration of the sanctioned plan in respect of the Ground floor as there has been no any plan to have commercial units in that floor and hence, the complaint was filed. As is understood, the Ground floor of the multi-storied building has been earmarked for parking and road; First floor shall have residential and MSA 17 of 2024 Page 18 of 27 commercial units; and rest of the floors would have residential flats and since the petitioner alleged alteration in the Ground floor, the matter was carried to the RERA but it has not been entertained on the premise that the construction of the building with delivery of the flats to the owners has taken place prior to the commencement of the Act and ultimately, upheld by the learned OREAT by the impugned order i.e. Annexure-1. In respect of the complaint regarding change in sanctioned plan, action was earlier initiated under Section 91(1) of the ODA Act. It is the allegation of the petitioner that there has been extensive alteration by the builder vis-à-vis First floor of the building project in deviation of the approved plan of the CDA in clear contravention to Section 14(i) and (ii) of the Act. As earlier stated, the learned authorities below declined any such interference with the conclusion that the project is a completed one and that apart, the flats are being possessed by the owners after being delivered in 2016.
21. It is claimed by the petitioner that information was obtained under the RTI Act on the approved plan and other details received on 16th March, 2012. It is pleaded on record that the builder has not submitted the EC, rather, applied for regularization under a scheme seeking modification of the plan and there has been no issuance of any occupancy certificate. It is also alleged that the completion certificate has not been issued to the builder either as per the information provided by the CDA. In response to the above, it is claimed by the respondent builder that site inspection report has been prepared by an Architect and it has been placed before the Planning MSA 17 of 2024 Page 19 of 27 Member, CDA with a request for approval of plan, such as, regularization of existing S+4 storied residential and commercial building constructed over the plot in question.
22. The findings of the RERA as at Annexure-3 reveals that the project is not an ongoing one and therefore, registration under Section 3 of the Act is not necessary, inasmuch as, the petitioner purchased the flat in 2016 and hence, it was completed and thereafter, the possession was delivered. Furthermore, it is held that the petitioner failed to clarify the extent of area constructed for commercial purpose and in absence of any measurement, it was not possible to know as to if the entire Ground floor or a part thereof has been used for commercial purpose with the alleged construction and therefore, difficult to reach at a conclusion regarding violation of sanctioned plan merely by referring to the evidence produced and ultimately, held that the CDA has the jurisdiction instead to deal with the application regarding any such violation and such a finding has been affirmed by the learned OREAT as per Annexure-1.
23. To reiterates, the seminal question is, whether, the subject matter is amenable to the RERA? It is pleaded on record by the respondent builder that the completion certificate was issued in respect of the project certifying it to have been completed on 30th December, 2016 but inadvertently, the same could not be produced before the learned OREAT, which is instead submitted to the CDA and the promoter has also deposited the requisite fee on 29th April, 2017 for scrutiny of the same. The Court is of the considered view that as against MSA 17 of 2024 Page 20 of 27 such claim, necessary verification was to be made since issuance of the completion certificate prior to the commencement of the Act takes away the project from the jurisdiction of the RERA.
24. At the cost of the repetition, it is to be held that a project demands registration as per Section 3 of the Act provided the same is not completed as on the date of commencement of the Act and in that case, the promoter shall have to move the application to the concerned authority. The Act stipulates that the sanctioned plan and project specifications shall have to be adhered to as per Section 14 thereof. It is further stipulated therein that any addition and alteration in the sanctioned plan, layout plans and specifications etc. in respect of an apartment, plot or building, as the case may be, which are agreed to be taken shall not be carried out by the promoter without the previous consent of the person, who has been disclosed or furnished with the details thereof but the same is not to include minor changes as may be required by the allottee or when such addition and alteration is considered necessary due to architectural and structural reasons duly recommended and verified by an authorized Architect or Engineer. It does mean, any such change or alteration of the plan sanctioned with all such specifications is not to be subjected to any alteration or addition, unless it is minor, without the consent of the allottees. That apart, the promoter has the obligation in view of Section 11(4) of the Act to discharge it and in case of any such lapses, a complaint in that regard may be entertained by the authority concerned. One of the obligations of the promoter as per sub-
MSA 17 of 2024 Page 21 of 27section 4(b) of Section 11 of the Act is that the promoter shall be responsible to obtain the completion certificate or certificate of occupancy or both as applicable from the competent authority as per the rule or law or such other law in place and to make it available to the allottee individually or to the association of the allottees, as the case may be. On a reading of the above provisions, it is understood that no any deviation is permissible to a sanctioned plan under the Act unless there is consent of the allottees. In fact, Section 14(3) of the Act stipulates that in case of a structural defect or any other defect in the 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 such promoter to rectify such defects without further charge within thirty days and in the event of failure to rectify the same within such time, the aggrieved allottees shall be entitled to receive compensation in the manner provided under the Act. So, therefore, all such compliances are to be made by a promoter, while dealing with a project provided the same is ongoing one as on the date of commencement of the Act.
25. Without the completion certificate having been obtained, offering possession of flats is per se illegal under the Act. If a builder offers possession without the said certificate, the allottees shall have several options including filing of a complaint with the RERA seeking a refund or claiming compensation under the Act. The completion certificate is MSA 17 of 2024 Page 22 of 27 indeed crucial as it signifies that the building is constructed according to the approved plan. Such a certificate and occupancy certificate shall have to be obtained by the builder before handing over possession of the flats to the allottees, who are assured that the property is built according to the approved plan and is safe for habitation and in case where such certificate is not managed, the allottee may have the right to refuse possession and can also seek legal recourse including filing of the complaint under the Act. At the same time, the builder, who violates the provisions of the Act, rule and regulation by offering possession without completion certificate is to invite penalty and legal action. It is, hence, to be concluded that an allottee makes a developer responsible and duty bound to obtain necessary certificates and clearances before offering possession of the flat to him. In Dharmendra Sharma Vrs. Agra Development Authority, (2025) 1 SCC 422, it has categorically held that an offer made by a real estate developer to a home buyer to take possession of a flat without obtaining completion certificate and firefighting clearance would not be considered valid and does amount to deficiency in service and consequently directed the concerned Development Authority to pay compensation due to the inability on the part of the developer to provide completion certificate and such clearance when the flat was handed over to the allottee, while dealing with a consumer complaint. It cannot, therefore, be gainsaid that the certificate and the clearances are sine qua non for any legitimate delivery of a housing project and at times, builders often try to avoid such responsibility in order to shift the onus to the buyers and the MSA 17 of 2024 Page 23 of 27 law is clear enough to meet such a contingency necessitating the former to obtain all such documents before the flats are being handed over to the latter. It is reiterated that Section 11(4)(b) of the Act mandates that a developer has the obligation to obtain completion and occupancy certificates from the competent authority and only after obtaining the same, the possession of the flats to be handed over to the buyers. Without elaborating further, the conclusion of the Court is that issuance of completion certificate in respect of a flat is essential and if the same has not been obtained by the promoter or developer in respect of a project ongoing at the time of the commencement of the Act, for such a lapse, a complaint is entertainable by the RERA.
26. As to the instant case, the respondent builder claims that the completion certificate was issued in respect of the project and it was over before the law came into force. It is claimed that the completion certificate which could not be produced before the learned OREAT certified the project to be over on 30th December, 2016 and it was placed before the CDA with payment of a fee of Rs.1000/- for scrutiny of the same. It is not understood why and what prevailed upon the respondent builder not to bring the said fact to the notice of the learned OREAT. Perhaps, it was not demanded by the learned authorities below for a conclusion that the project was over with delivery of flats in 2016 and hence, cognizable by the CDA, in case of any such violation of the sanctioned plan. Under the above circumstances, the Court is of the humble view that learned OREAT is required to verify the record to MSA 17 of 2024 Page 24 of 27 ascertain as to when the completion certificate was issued in respect of the flat of the petitioner or for that matter, the project in question and to ascertain, if at all, it has been placed at the disposal of the CDA as claimed by the respondent builder in order to confirm, whether, the project to be an ongoing or a concluded one as on the date, when the Act came into force. It is, therefore, concluded that even though there is delivery of possession of the flat, in absence of a completion certificate, as on the date of such delivery, it has to be held that the project is an ongoing one and hence, amenable to the Act and if such a decision is reached at by the learned OREAT after verification of the record lying in the custody of the CDA with further enquiry as necessary and expedient with a satisfaction reached at with issuance of the completion certificate prior to the cut- off date, the petitioner, in that case, shall have to approach the CDA alleging alteration or addition in the sanctioned plan, layout or specifications, since the RERA lacks jurisdiction to deal with the complaint under Section 31 of the Act.
27. On such other grounds advanced by the respondents regarding action against the Managing Director and not the company, a juristic entity, the Court is of the view that any such complaint may be filed against a promoter, even an allottee or even a real estate agent and hence, leaving out a promoter or a company becomes really insignificant looking at the intent, purport and objective of the law, which is introduced primarily to protect the interest of the consumers in the real estate sector and to establish an adjudicating mechanism for speedy dispute redressal. One more ground raised to the effect MSA 17 of 2024 Page 25 of 27 that the petitioner alone cannot maintain the complaint as against the claim that other flat owners did offer the consent, it is again immaterial provided the consent is according to law and that apart, any such complaint may be filed and received by the RERA even at the instance of an aggrieved person inclusive of the association of the allottees or any voluntary consumer association duly registered under law in view of the Explanation to Section 31(1) of the Act,. Thus, the conclusion is that the above grounds advanced and pleaded by the respondents opposing the complaint and the intended action cannot be sustained.
28. On account of the above conclusion, the substantial questions of law formulated by the Court stand answered accordingly.
29. Hence, it is ordered.
30. In the result, the appeal is allowed. As a necessary corollary, the impugned orders as at Annexures-1 and 3 are set aside. Consequently, the learned OREAT is directed to call for the records from the CDA and such other authority concerned to find out and ascertain about the date of issuance of the completion certificate in respect of the flat or the project in question in view of the rival claims of the parties and thereafter, to deal with the proceeding in OREAT Appeal No.58 of 2022 hereby restored to file followed by a decision and order in accordance with law preferably within a month from the date of receipt of a copy of this judgment and till such time, the disposal of the appeal is achieved, any such MSA 17 of 2024 Page 26 of 27 construction vis-à-vis the floor(s) in question of the apartment for commercial purpose shall be deferred or in case, it has already commenced, to be discontinued till then.
(R.K. Pattanaik) Judge Tudu/Balaram/Rojina Signature Not Verified Digitally Signed Signed by: THAKURDAS TUDU Reason: Authentication Location: OHC,CTC Date: 08-Aug-2025 10:42:10 MSA 17 of 2024 Page 27 of 27