State Consumer Disputes Redressal Commission
Bhupinder Singh vs Gmada on 29 May, 2018
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
Execution Application No. 79 of 2016
in
Consumer Complaint No. 113 of 2015
Date of Institution : 29.11.2016
Date of Reserve : 03.05.2018
Date of Decision : 29.05.2018
Group Captain Bhupinder Singh son of Sh. Jaswant Singh, resident of #
933, Phase XI, Sector 65, Mohali.
....Decree Holder/Complainant
Versus
1. Chief Administrator, GMADA, Mohali
2. The Estate Officer (H), GMADA, Mohali.
......Judgment Debtors/Opposite Parties
Execution Application under Section 25 &
27 of the Consumer Protection Act, 1986
against the order dated 12.8.2016 passed in
C.C. No. 113 of 2015 by this Commission.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member.
Shri Rajinder Kumar Goyal, Member
Present:-
For the decree holder/ : Sh. Bhupinder Singh, in person
complainant
For the JDs/Ops : Sh. Balwinder Singh,Advocate with
Sh. Mahesh Bansal, E.O.
Execution Application No. 79 of 2016 2
in
Consumer Complaint No. 113 of 2015
GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER
ORDER
Consumer Complaint No. 113 of 2015 was filed by the complainant Group Captain Bhupinder Singh against the Ops, which was decided by this Commission on 12.8.2016 with the directions to the Ops to deliver the possession of the flat complete in all respects including Occupation Certificate from the Competent Authority. It was further directed that the Ops will pay interest @ 8% compounded annually on the deposited amount of Rs. 33,96,250 w.e.f. 15.6.2015 till the delivery of possession of the flat. For delay of 23 days in payment of 65% of the amount, the Ops were held entitled to charge the penal interest as per conditions in the LOI.
2. The Ops filed an appeal before the Hon'ble National Commission against this order, which was finally decided by the Hon'ble National Commission vide its order dated 31.8.2017, for delay in delivery of possession against the interest allowed by this Commission, the complainant was allowed lumpsum amount of Rs. 1 Lac as compensation. There was no other change by the Hon'ble National Commission in the order passed by this Commission.
3. In the Execution filed by the complainant, notice was given to the Ops. On the basis of order passed by the Hon'ble National Commission, the complainant had deposited a sum of Rs. 42,802/- with the JDs on account of delay of 23 days in deposit of 65% amount with the JDs and that JDs/Ops have also paid a sum Execution Application No. 79 of 2016 3 in Consumer Complaint No. 113 of 2015 of Rs. 1,10,000/- to the complainant and that is not a disputed preposition.
4. The preposition in hand is that Op is ready to deliver the possession of the flat in question as it is but the objection of the complainant is that their flats are not complete in all respect and no occupation certificate has been taken by the Ops/JDs from the Competent Authority.
5. During the pendency of the execution application, Miscellaneous Application was filed by the JDs vide which they put on record a certificate issued by Divisional Engineer(C-II), Divisional Engineer, Public Health-II and Divisional Engineer (Elect.), GMADA, SAS Nagar, which reads as under:-
"This is certified that the basic amenities such as water supply, electricity and sewerage system etc. including development works related to Civil, Public Health and Electrical services have been completed in all respects in Tower No. A-4, A-5, A-6, B-3, B-4, B- 5, B-6, C-3, C-4, C-5, C-6, C-7, C-8, D-4, D-5, D-6 and D-7 on date 30.6.2016."
However, the complainant, who is arguing his case personally stated that it is not a completion/occupation certificate. With regard to the completion certificate, he has referred to Clause 3(2)(j) of PAPRA 1995, which reads as under:-
"(j) not allow persons 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 Execution Application No. 79 of 2016 4 in Consumer Complaint No. 113 of 2015 take possession of an apartment until such occupation certificate is obtained;"
The Competent Authority has been defined under PAPRA is as under:-
"'Competent Authority' means any person or authority appointed by the State Government, by notification in the Official Gazette, to exercise and perform all or any of the powers and functions of the competent authority under this Act and the rules made thereunder;"
The definition of "promoter" has also been defined under the PAPRA, which reads as under:-
"(y) "promoter' means the person,-
(a) who constructs or causes to be constructed a building consisting of apartments, or, converts an existing building or a part thereof into apartments, for the purpose of selling all or some of the apartments to other person, and includes his assigns; or
(b) who develops land into a colony, whether or not be also constructs structures on any of the plots, for the purpose of selling to other persons, all or some of the plots, whether open or with structures thereon; and
(c) where the person who constructs or convert a building or develops a colony and the person who sells apartments or plot are different persons, the term includes both of them;
Explanation,-(1) Any development authority and any other public body so notified by the State Government are deemed to be promoter in respect of allottees of,-
(i) buildings constructed by them on land owned by them or placed at their disposal by the State Government; or
(ii) plots owned by them or placed at their disposal by the State Government;Execution Application No. 79 of 2016 5
in Consumer Complaint No. 113 of 2015 Explanation,- (2) A person who acts as described in sub-clause (c) of clause (y) shall be deemed to be a promoter, even if,-
(i) he styles himself as a builder, colonizer, contractor, developer, estate promoter or by any other name; or
(ii) he claims to be acting as the holder of a power of attorney from the owner of the land on which the building is constructed or colony IS developed;"
According to explanation(1) referred above, JDs come under the definition of 'Promoter'. Therefore, they are also to get the completion/occupation certificate as other promoters take it.
Counsel for the JDs moved a miscellaneous application No. 1191 of 2018 with regard to status of Completion Certificate and Occupation Certificate. They have referred to Section 44 of 'the Punjab Apartment and Property Regulation Amendment Act, 2014', which reads as under:-
"44.(1) Subject to the provisions of section 32, nothing in this Act shall apply if the Promoter is:-
(a) a local authority or statutory body constituted for the development of land or housing; or
(b) a company or a body created for development of land or housing or promotion of industry wholly owned and controlled by the State Government or the Central Government; (2) If the State Government is of the opinion that, the operation of any of the provisions of this Act, causes undue hardship, or circumstances exist which render it expedient to do so, it may exempt, by a general or special order, any class of persons or areas from all or any of the provisions of this Act, subject to such terms and conditions as it may impose."
He has also referred to Section 32(1) of the PAPRA, which reads as under:-
Execution Application No. 79 of 2016 6
in Consumer Complaint No. 113 of 2015
32.(1) Every promoter to whom a licnece has been granted under section 5 to develop a colony or who stands exempted or to whom exemption is granted under section 44 shall deposit service charges at the rate of rupee three per square metre of the plotted area proposed to be developed by him as residential, commercial or industrial (excluding the area used by the public for general purposes) into a colony in lumpsum, prior to grant of licence and the promoter in turn shall be entitled to pass on the service charges so paid by him to the allottees.
Explanation,- In the case of a promoter exempted under section 44, the date of first inviting applications for the sale of plots in any colony by it shall be deemed to be the date for the purposes of deposit of service charges.
(2) The amount of service charges levied under sub-section (1) if not paid within the stipulated period, shall be recoverable as arrears of land revenue.
(3) The amount of service charges deposited by the promoter under sub-section (1) or recovered under sub-section (2) shall constitute a fund to be called "the Punjab Urban Development Fund" (hereinafter refereed to as the Fund) and shall vest in such Authority as the State Government may notify in this behalf and shall be administered by that Authority.
(4) The Fund shall be utilised by the Authority notified under sub- section (3) for the benefit of the allottees, for development of the colonies, to promoter research and development, training and capacity building and upgradation of infrastructure or apparatus in town and country planning and urban areas, and for such other similar purposes as may be prescribed.
(5) The State Government shall publish annually in the Official Gazette the report of the activities financed from the Fund and the statement of accounts."
According to Section 44(1) of the PAPRA, the local authority or statutory body constituted for the development of the land or housing or a company or a body created for development of land or housing or promotion of industry wholly owned or controlled by the Execution Application No. 79 of 2016 7 in Consumer Complaint No. 113 of 2015 Government/Central Government. Counsel for the JDs stated that GMADA is a body owned and controlled by the State Government, therefore, it is exempted from the provisions of PAPRA.
6. In para No. 5 of the application, it has been stated that the JDs after framing the Housing Scheme of Purab Premium Apartments with a detailed terms and conditions as mentioned in the brochure of this Scheme have already carried out the necessary development at the site as per the certificate given by their Engineering Wing. Here it is pertinent to mention salient features of the scheme as mentioned in the brochure of the Ops, which are as under:-
"* 75% open spaces.
• All locations good. All apartments North-East facing with big
Windows and Balconies. Designed respecting the age old wisdom of Vaastu. All areas in each apartment designed to let Fresh Natural Air flow through and with movement of Sun in view. Minimal requirement of electricity.
• To be built by firms of national repute, with steel, cement, paints, flooring, prefabricated doors, bathroom fittings and kitchen fittings of only reputed brands (*see overleaf). Pipes only through open ducts and not walls. Quality of construction to be supervised by third party independent agencies.
• 24 hour pressurized water supply. No overhead or rooftop water tanks.
• Piped metered LPG/NPG, Garbage chute.
• Automatically switching Common Generator backup for fans, lights,
TV and Fridge @ 0.8, 1 & 1.2 kW per house, as per size. Underground electric cabling no electric poles. • Alternatives over parental controls - 3 All Weather 25 meter Indoor Swimming Pools, 8 Lawn Tennis Courts, 2 Skating Rinks, 8 Indoor Badminton Courts & 8 Table Tennis tables, two 5000 sq. ft. Gyms, 8 Basket Ball Courts, 8 Volley Ball Courts, 2 Football Grounds, Over mile long Walking Tracks, a Community Centre + Club + Yoga & Meditation Hall with 30000 sq. feet covered area and Convenient Execution Application No. 79 of 2016 8 in Consumer Complaint No. 113 of 2015 Shopping for day to day needs to be provided within 5 minutes walking distance of every apartment as a matter of right, as soon as construction of apartments concludes.
• Card plus Finger Print based Common Entry Control for security. 4 feet high railings for safety.
• To be designed and built so as to withstand earthquakes as per Zone 4 notified by GOI. (7 on Richter scale) • Spacious fast elevators and fire fighting equipment. • Possession to be handed over in 36 months from date of draw." The list of approved makes of finishing items, fittings, fixtures and engineering installations has been given as under:-
Items Approved make / materials
Civil Finishes
Flooring in Bed Rooms, Living Full thickness vitrified tiles 600 MM X
600MM (RAK, Restile, Nitco)
Flooring in Corridors, Balconies, Full thickness anti-skid vitrified tiles Toilets, Kitchen (RAK, Restile, Nitco) Staircase Treads Kota Stone Flooring in Lift Lobbies Full body anti-skid vitrified tiles with flame-torched granite border (makes as above) Wall finishes (interior) Gypsum Punning on walls finished with Plastic emulsion Paint with Birla White Putty (Paints-Asian, ICI Dulux, Berger) Wall finished in Toilets and Kitchen Wall tiles in dado up to 2100mm (Kajaria, Somany) Kitchen counter 19mm Granite slab with 750mm dado in ceramic wall tiles (8" x 12" min) above Counter (makes as above) Kitchen Wash Basin Stainless Steel (Nirali, Neel Kanth) Kitchen Storage 8" deep row of Stainless Steel wire net drawers under the entire length of counter with real wood facing and 9 inch x 12 feet long Granite slab at 21"
above counter. Rails: Hettich Railings on Balconies, Passages 4' high in Stainless Steel (SS 304) Doors (Dry areas) Pre molded door shutters with Chip Board / Eco Lax Board core, covered with HDF skin (Make :
MASONITE/Durian/KALPATRU) Doors (Wet areas) Permafinish Almira Shutters Pre-laminated Windows UPVC (Fenesta or Aluplast) with manufacturer approved Stainless Steel friction stays and hardware Execution Application No. 79 of 2016 9 in Consumer Complaint No. 113 of 2015 Items Approved make / materials Plumbing Services LPG/NPG Pipe & Fittings Conforming to safety standards Water supply system Hydro-Pneumatic (DP pumps, Grundfos) Water supply main risers and Stainless Steel pressed joints (SS 316 distribution Viega, Geberit) Waste, vent pipes, fittings Neeco, RIF Valves Sant, Leaders Bathroom faucets, showers, health Jaquar, Kohler, Roca faucets, kitchen faucets wash basis mixers, floor gratings, CP Towel rails, soap dishes Bathroom drains Viega WCs (Wall mounted), Wash Basins Hindware, Roca, Kohler Electrical Services Emergency back-up (1KW each flat) Lights (One CFL in each room) Philips, OSRAM, WIPRO, GE Switches, Sockets Legrand Mylinc, ABB, L&T, North West MCBs, ELCBs and switch gears Legrand Mylinc, ABB, L&T, North West Exhaust Fans Bajaj, Crompton, Orient;
Wires Copper FRLS (Kalinga, Plaza,
Anchor)
Fire Protection
Fire Hose Reel and Fire Hose Cabinet with wet-riser at each Lift and Staircase Lobby and Yard hydrants Fire Pump (1 electric main pump+1 diesel standby pump) + 1 jockey pump As per the plea taken by the counsel for the JDs that as per the terms and conditions mentioned in the brochure, they have completed the entire work as per the certificate given by their Engineers referred above. In case we go through this certificate, it deals with the basic amenities such as water supply, electricity and sewerage system relating to Civil, Public Health and Electrical services and it does not deal with the salient features and approved makes of finishing items, fittings, fixtures and engineering installations given by them in the brochure and the certificate does not say anything about the salient feature and providing approved makes of finishing items, fittings, fixtures and engineering installations Execution Application No. 79 of 2016 10 in Consumer Complaint No. 113 of 2015 including Town Planning issues of open spaces/joining of building blocks instead of separate Blocks as per brochure. Therefore, on the face of it, it cannot be said to be a completion/occupation certificate.
7. With regard to exemption of the Ops from the provisions of the PAPRA against the order passed by this Commission in Complaint No. 113 of 2015 on 12.8.2016, its appeal was filed by the JDs/Ops before the Hon'ble National Commission, which was disposed of by the Hon'ble National Commission vide its order dated 31.8.2017, except interest on the deposited amount, lumpsum compensation of Rs. 1 Lac was allowed to the complainant. No other change was made by the Hon'ble National Commission and no other appeal/revision was filed by the JDs, therefore, the order with regard to issuance of completion/occupation certificate qua JDS has become final. The Executing Court cannot go beyond the order. Once the order has become final against the JDs, the JDs are estopped by their act and conduct to say now that they are not supposed to give completion/occupation certificate as stated by the Decree Holder according to the order passed by the State Commission.
8. LOI was issued on 15.6.2012 by the Ops and in its Clause 3(II) under the title 'Ownership and Possession', it has been mentioned as under:-
"(II) Possession of apartment shall be handed over after completion of development works at site in a period of 36 months from the date of issuance of Letter Execution Application No. 79 of 2016 11 in Consumer Complaint No. 113 of 2015 of Intent. In case for any reason, the Authority is unable to deliver the possession of apartments within stipulated period, allottee shall have the right to withdraw from the scheme by moving an application to the Estate Officer, in which case, the Authority shall refund the entire amount deposited by the applicant along with 8% interest compounded annually. Apart from this, there shall be no other liability of the Authority."
Therefore, even if for the sake of arguments, it is taken that PAPRA does not apply to the Ops but Ops are bound by the terms and conditions as contained in the LOI. In case in Clause 3(II) referred above, they are undertaking that they will deliver the possession after all the development work is complete then they should give the certificate according to the basic features given in the brochure and that according to the brochure all the development work as promised by them are complete, but such a certificate is not coming forth from the JDs. The counsel for the JDs has referred to certain photographs on the record but merely on the basis of photographs one cannot judge whether all the amenities as per the basic features referred above have been completed and in case they have completed it then there should be no hesitation for them to get the completion certificate from the Competent Authority and after that the occupation certificate can be issued in favour of the complainant/applicant.
Execution Application No. 79 of 2016 12
in Consumer Complaint No. 113 of 2015
9. With regard to the exemption of the Ops/JDs from the provisions of the PAPRA, it is a matter of record that the Ops/JDs were created under the Punjab Regional and Town Planning and Development Act and Rules, 1995. Part VI of the Rules deals with preparation and approval of Master Plan. Rule 32 deals with 'consent of Municipal Committee or the Municipal Corporation for preparation and approval of Master Plan, which reads as under:-
"32. Consent of the Municipal Committee or the Municipal Corporation [Sections 71(1)(b) and 180(2)(zb)].--(1) After the Outline Master Plan is approved by the Board under section 70, the Designated Planning Agency shall, where it is not a Municipal Committee or Municipal Corporation, prepare the draft Comprehensive Master Plan for the Local Planning area or a part thereof.
(2) The draft Comprehensive Master Plan prepared by a Designated Planning Agency other than a Municipal Committee or Municipal Corporation, shall be submitted to the Municipal Committee or the Municipal Corporation in whose jurisdiction the local planning area or a part thereof, for which the draft Comprehensive Master Plan has been prepared, falls for giving its consent to the draft Comprehensive Master Plan within a period of sixty days from the date of its receipt, failing which its consent shall be presumed to have been given.
(3) The provisions of rules 28 and 30 relating to the Outline Master Plan shall mutatis mutandis apply to the draft Comprehensive Master Plan as also to the form and contents thereof."
According to this Rule, when the draft of comprehensive Master Plan is prepared by a designated Authority other than a Municipal Committee or Corporation but shall be submitted to the Municipal Committee or Municipal Corporation in whose jurisdiction the Local Planning area or a part thereof for which the draft Comprehensive Execution Application No. 79 of 2016 13 in Consumer Complaint No. 113 of 2015 Master Plan has been prepared falls. The area where this project has been prepared by the Ops/JDs will either fall within the Municipal Corporation, SAS Nagar Mohali or any Municipal Committee that may be Municipal Committee, Kharar or Zirakpur. In case the area falls within the jurisdiction of the Municipal Corporation or Municipal Committee what are the provisions with regard to taking the completion certificate in case any project has been constructed within the jurisdiction of that Municipal Corporation or Municipal Committee. In case the area is falling within the Municipal Corporation, SAS Nagar then Section 272 of the Punjab Municipal Corporation Act, 1976 will apply, which reads as under:-
"272. Completion certificate.- (1) Every person who employs a licenced architect or engineer or a person approved by the Commissioner to design or erect a building or execute any work shall, within one month after the completion of the erection of the building or execution of the work, deliver or send or cause to be delivered or sent to the Commissioner a notice in writing of such completion accompanied by a certificate in the form prescribed by bye-laws, made in this behalf and shall give to the Commissioner all necessary facilities for the inspection of such building or work. (2) No person shall occupy or permit to be occupied any such building or use or permit to be used any building or a part thereof effected by any such work until permission has Execution Application No. 79 of 2016 14 in Consumer Complaint No. 113 of 2015 been granted by the Commissioner in this behalf in accordance with bye-laws made under this Act:
Provided that if the Commissioner fails within a period of thirty days after the receipt of the notice of completion to communicate his refusal in grant such permission such permission, shall be deemed to have granted."
Whereas if the area is falling within the Municipal Committee, Punjab Government, Department of Local Government (Town Planning Wing) has issued a notification dated 7.7.2015 i.e. Model Municipal Building Bye-Laws 2015 and its Clause 3.12 deals with permission to occupy and the relevant provisions is referred as under;-
"(i) No person shall occupy or allow other person to occupy any new building or part of a new building for any purpose whatsoever until such building or part thereof has been certified by the local authority or of any person authorized by it in this behalf to be in every respect completed according to the sanctioned plan and fit for the use for which it is erected."
Therefore, in case the said certificate is not to be issued by the JDs then in case area is falling within the jurisdiction of Municipal Corporation or Municipal Committed then Ops are required to get completion certificate from that Authority referred in Municipal Corporation Act, 1976 or under the Municipal Bye-Laws. Otherwise also in case the Ops are working as a Promoter and in case other promoters are getting the completion / occupation certificate then the position of the Ops should be similarly placed, when the order Execution Application No. 79 of 2016 15 in Consumer Complaint No. 113 of 2015 passed by the State Commission with regard to completion/occupation certificate has become final. Otherwise after giving publication to the general public that they will give such facilities as referred above in their brochure and in Clause 3(ii) of the LOI, they have undertaken that they will deliver the possession of the flat after completion of development works at site, lateron they cannot say that they are not to provide these facilities because they are a statutory body and they can hand over the possession of the apartment in the manner they like.
10. No other point is in issue at this stage.
11. We are of the opinion that the plea taken by the JDs that they are not required to get any completion/occupation certificate is mis-placed. They are directed to get the completion/occupation certificate from the Competent Authority as discussed above, immediately and comply the order passed by this Commission.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER May 29, 2018.
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