JUSTICE V.K. JAIN, PRESIDING MEMBER

        The complainant / respondent booked a residential flat with the appellants in Woodbury Apartment, Zirakpur for a total consideration of Rs.32,84,541/-.  Vide allotment letter dated 22.10.2008, residential flat No. 402 in the said project was allotted to him on the terms and conditions annexed to the said letter.  As per Clause-22 of the terms and conditions, the appellants was to endeavour to give possession within a reasonable time from the date of the allotment letter, subject to the force majeure circumstances, including delay in the grant of part / full occupancy certificate.  The following was the payment plan, agreed between the parties:

1. Down Payment Plan.

2.     The complainant also took a loan from Dewan Housing Finance Corporation Limited for making payment to the appellants and mortgaged the allotted flat to the said company.  Since the possession of the flat was not offered to him, the complainant approached the concerned State Commission by way of a consumer complaint, seeking the following reliefs:

“(i)    To deliver the possession of the flat immediately after issuing the completion certificate and the occupation certificate.

(ii)     To pay the interest @ 24% per annum on the amount deposited by the complainant from the date of payment till the delivery of possession.

(iii)    To pay the Pre-EMI amount paid by the complainant to opposite party No.3 due to non-handing of the possession in time from the date of payment till the actual handing over the possession of the flat;

(iv)    To pay compensation of Rs.2,00,000/- for mental agony and harassment.”

3.     The complaint was resisted by the appellants, which inter-alia stated in its reply that the possession was offered to the complainant on 25.4.2011 but he was not coming forward to pay the balance amount and take possession.  As regards the allegations of the complainant that the flat was not ready for occupation, it was stated in the written version filed by the appellants that painting of the flat, along with electrical fittings are not completed, prior to receipt of payment as the fittings generally get stolen.

4.     The State Commission vide impugned order dated 21.12.2012 directed as under:

“       (i)      The opposite parties No. 1 and 2 are directed to pay entire interest to O.P. No.3 from 09.10.2010 i.e. after two years from the date of purchase of the flat by the complainant till the delivery of the possession of the flat and if already paid by the complainant then the same be refunded by the opposite parties No. 1 and 2 to the complainant.

(ii)     Pay interest @ 12% per annum on Rs.1 lac which was deposited by the complainant with opposite parties No. 1 and 2 on 8.10.2008; from 9.10.2010 till the delivery of the possession of the flat within one month from the receipt of the copy of the order.

(iii)    To deliver the possession of the flat within six months from the receipt of the copy of the order after completing all the formalities as per the law as well as completing the construction of the building on all aspects as well as to provide basic amenities to the complainant.

(iv)    to pay Rs.2 lacs as compensation due to harassment, mental agony suffered by the complainant due to non-delivery of the flat for such a long period as well as Rs.20,000/- as litigation expenses within one month from the receipt of copy of the order.

(v)     O.P. No.3 is directed to pay Rs.50,000/- to the complainant for its unfair trade practice by obtaining the signature of the complainant on the tripartite agreement without filling the columns of the agreement and to use the same as per its own sweet will and to cheat and extort money from the complainant, within one month from the receipt of the copy of the order.”

4.     Being aggrieved from the order passed by the State Commission, the appellants are before this Commission by way of the present appeal. 

5.     It is not in dispute that 95% of the sale consideration had been paid by the complainant to the appellants and the balance 5% was payable at the time of possession.  Though, no specific time period was fixed in the terms and conditions of allotment for offering possession of the allotted flat to the complainant, considering all the facts and circumstances of the case, including the scale of the project in which allotment was made to the complainant, I am of the considered view that the possession ought to have been offered within a period of three years from the allotment, after completing the construction in all respects and obtaining the requisite occupancy certificate. 

6.     It is not in dispute that vide letter dated 25.4.2011, the appellants had offered possession of the allotted flat to the complainant.  The said offer of possession would have been fair and reasonable had the appellants obtained the requisite occupancy certificate before offering possession of the flat to the complainant.

7.     The contention of the learned counsel for the appellants is that they having applied to the concerned authority for issuance of the requisite occupancy certificate, they cannot be held responsible for the delay taken by the concerned authorities in issuing the occupancy certificate.  In support of his contention he relied upon Clause-22 of the terms and conditions of the allotment, which to the extent it is relevant, reads as under:

        “22.  The developer shall endeavour to give possession of the Unit to the Allottee (s) within a reasonable time from the date of execution of allotment letter, subject to force-majeure circumstances such as act of God, fire, earthquake, flood, civil commotion, war, riot, explosion, terrorist acts, sabotage, or general shortage of energy labour equipment facilities material or supplies, failure of transportation, strike, lock outs, action of labour union, any dispute with any contractor / construction agency appointed by the developer, change of law or any notice, order, rule or notification issued by any Courts / Tribunals and / or Authorities, delay in the grant of part / full completion (occupancy) certificate by the government and / or any other public or competent authority or intervention of Statutory Authorities, or any other reason (s) beyond the control of the Developer and subject to receipt of complete dues and other charges as per instalment plan opted by the Allottee (s).  The Allottee (s) shall not be entitled to any compensation on the grounds of delay in possession due to reasons beyond the control of the Developer.”

8.     Though, the appellants claims to have applied for the issuance of the requisite occupancy certificate, they have not produced any evidence to prove that the delay in issuance of the occupancy certificate is attributable solely to the concerned authority and the appellants are not in any manner, responsible for the said delay.  The appellants have not even placed on record the correspondence exchanged between them and the concerned Municipal Authority in respect of their application for issuance of the occupancy certificate.  In my view, the onus was upon the appellants to prove that they had applied for the issuance of the requisite occupancy  certificate with all the prescribed documents and that the construction, subject matter of their application for issuance of the occupancy certificate, was complete in all respects and free from any defect, deviation, unauthorized construction etc. Bye-law 3.12 and 3.13 of the Zirakpur Municipal Building Bye-law, 2010 as extracted in the order of the State Commission read as under:

        “3.12        Permission to occupy:

1. 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.

2. Every person who intends to occupy such a building or part thereof shall apply for permission in Form ‘D’ appended to these Bye-laws.

3. The local authority may decline to give permission unless a certificate in Form ‘E’ appended to these Bye-laws duly signed by a Licensed Architect / Building Designer and Supervisor has been submitted.

4. When permission to occupy a part of the building has been given, separate, permission shall be necessary for occupation f such other parts as may be subsequently completed.

5. Applicant shall remove or destroy, any temporary building, which might have been erected, and the debris from the site and adjoining road or vacant site before the occupation certificate is issued.

6. Partial occupation certificate may be granted for partially constructed building with one habitable room, one water closet and one bathroom

   3.13 Notice of completion:

           Every person newly erecting or re-erecting a building shall on its completion give notice of such completion to the local authority in Form ‘F’ appended to the bye-laws.  If the building is not completed within two years of the date of sanction, the notice shall be accompanies by a construction plan or tracing cloth in duplicate with two Ferro prints of the building completed, up to date.”

    

             It would thus be seen that neither the complainant could have occupied the flat nor the appellants could have offered possession of the allotted flat to the complainant, unless and until the building or part thereof was certified by the Local Authorities to be complete in all respects, according to the sanctioned plan and fit for the use for which it was erected.  Therefore, offering possession without obtaining the requisite occupancy certificate was not only meaningless, but also in contravention of the building Bye-laws and had the complainant taken possession and started living in the flat he would have been committing breach of the building bye-laws at the risk of being penalised for the said breach.

   9.     It would also be seen from the Bye-laws extracted hereinabove that it is the person erecting or re-erecting a building who on its completion is required to give notice of completion to the Local Authorities.  Therefore, it was for the appellants to obtain the requisite occupancy certificate before offering possession of the allotted flat to the complainant, even if it is presumed that the construction of the flat was complete in all respects at the time the possession was offered.

   10.   Relying upon Section 14 of the Punjab Apartments and Property Regulation Act, 1995, the learned counsel for the appellants submitted that the complainant also could have applied for the occupancy certificate after taking possession of the allotted flat.  The said Section has been quoted in the order of the State Commission and reads as under:

           “14.  Occupation and completion certificate – (1) It is the responsibility of the promoter

7. In the case of apartments, to obtain from the authority required to do so under any law completion and occupation certificates for the building and in a promoter within a reasonable time, after the construction of the building, does not apply for an occupation certificate from the aforesaid authority, the allottee of an apartment may apply for an occupation certificate from the said authority ; and

8. In the case of a colony, to obtain completion certificate from the competent authority to the effect that the development works have been completed in all respects as per terms and conditions of the licence granted to him under Section 5.

   (2)    The authority referred to in sub-section (1) shall, after satisfying itself about the agreement of sale between the promoter and the allottee, and the compliance of the building regulations and all other formalities, issue an occupation certificate.”

    

   11.   In the present case, the appellants were not constructing only one individual flat, they were developing a residential complex of multiple flats.  Therefore,        primary obligation was of the appellants, they being the promoter of the project, to obtain the requisite completion and occupancy certification.  It has to be kept in mind that in the event of deficiency or in any part of the project is found by the concerned Municipal Authority, it is only the promoter and not an individual allottee, who can remove the said defect and deficiency.  Similarly, if there is a  deviation made by the promoter in the course  of construction    / development, it is only the promoter who can remove the said deviation, in order to enable the concerned Municipal Authority to issue the requisite occupancy certificate.

   12.   For the reasons stated hereinabove, I hold that the appellants were deficient in rendering services to the complainant since they failed to obtain the requisite occupancy certificate before offering possession of the allotted flat to the complainant.  The appeal is therefore, disposed of with the following directions :

   (i)     The appellants shall obtain the requisite occupancy certificate in respect of the flat allotted to the complainant at their own cost and responsibility within three months from today and then offer possession of the said flat to the complainant, within next one month, annexing a copy of the occupancy certificate to the offer.

   (ii)    The balance amount shall be paid by the complainant to the appellants within four weeks of receiving the offer of possession, along with a copy of the occupancy certificate.

9. The possession of the flat complete in all respects shall be delivered to the complainant within four weeks of his paying the balance amount in terms of direction (ii) hereinabove.

10. The appellants shall pay compensation in the form of simple interest @ 8% per annum to the complainant with effect form 22.10.2011 till the date on which the possession, in terms of this order, is offered.

11. The appellants shall pay a sum of Rs.25,000/- as the cost of litigation to the complainant.