the Hon'ble Supreme Court held as under:- Consumer Complaint No.230 of 2016 17.......... The trend of the decisions of this Court is that the jurisdiction of the Consumer Forum should not and would not be curtailed unless there is an express provision prohibiting the Consumer Forum to take up the matter which falls within the jurisdiction of civil court or any other forum as established under some enactment. The Court had gone to the extent of saying that if two different fora have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the Consumer Forum would not be barred and the power of the Consumer Forum to adjudicate upon the dispute could not be negated.
15. Further in National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. (2012) 2 SCC 506, it has been authoritatively held by the Honble Supreme Court that the protection provided to the consumers under the Act is in addition to the remedies available under any other Statute.
16. Similarly, State Consumer Disputes Redressal Commission Chandigarh, U.T. Chandigarh in Consumer Case No.659 of 2017 (Veena Ghai & Anr. v. Manohar Infrastructure & Constructions Pvt. Ltd.), which was decided along with bunch of similar other cases, vide order dated 28.06.2018, observed that RERA and PAPRA will not debar the jurisdiction of th Consumer Fora in entertaining the complaints filed by a consumer alleging deficiency in providing service, negligence and adoption of unfair trade practice, on the part of the opposite parties. It has been held as follows: Further contention was raised by Counsel for the opposite parties that in the face of provisions of the RERA, under which the opposite parties have registered the project, in question, on 15.09.2017, it was not open to this Commission, to entertain and decide the present complaint. He further asserted that sufficient Consumer Complaint No.230 of 2016 safeguard is provided under the provisions of RERA and if the complainants are feeling aggrieved of any action, on the part of the opposite parties, they may approach under the said Act (RERA) and not under the Act, 1986. We are not inclined to accept this argument. At the time of arguments, it is very fairly admitted by Counsel for the contesting parties, that the provisions of RERA are prospective in nature. It was also so said by the High Court of Bombay in the case of NeelKamal Realtors Suburban Pvt. Ltd. and anr. Vs. Union of India and ors. 2018 (1) R.C.R. (Civil) 298. It is on record that under the RERA, the opposite parties got themselves registered their project, only on 15.09.2017. It is also on record that some of the provisions of RERA came into operation on 01.05.2016 and even the remaining of it, in May 2017. In all, the grievance has been raised by the complainants qua wrongful act/mistake done leading to deficiency in providing service and adoption of unfair trade practice, in selling the project by the opposite parties without sanctions/approvals, before coming into existence of RERA. Reading of the provisions of Section 88 of RERA makes it very clear that the same are in addition and not in derogation of the provisions of any other law for the time being in force. Section 79 of the RERA further makes it very clear that jurisdiction of only the Civil Court to entertain a suit or proceedings qua action taken as per the provisions of the said Act, is barred. It may be stated here that the Consumer Foras under the Act , 1986 despite having some trappings of a Civil Court are not the Civil Courts. As such, the jurisdiction of the Consumer Foras is not debarred, to entertain the complaints filed by consumers, alleging deficiency in providing service, negligence and adoption of unfair trade practice against the opposite parties. Intention of the framers of law has been made clear by the concerned Consumer Complaint No.230 of 2016 Department i.e. Ministry of Housing and Urban Property Alleviation, Government of India in its website www.mygov.in/group/ministry-housing-and-urban-poverty- alleviation. Under Frequently Asked Questions (FAQ), at Sr.nos.
85 and 86, it was observed as under:-
85. Are the civil courts and consumer forums barred from entertaining disputes under the Act? As per section 79 of the Act civil courts are barred from entertaining disputes (suits or proceedings) in respect of matters which the Authority or the adjudicating officer or the Appellate Tribunal is empowered under the Act to determine. However, the consumer forums (National, State or District) have not been barred from the ambit of the Act. Section 71 proviso permits the complainant to withdraw his complaint as regards matters under section 12, 14, 18 and section 19, from the consumer forum and file it with the adjudicating officer appointed under the Act.
86 . Can a complainant approach both the Regulatory Authority / adjudicating officer and the consumer forums for the same disputes? The laws of the country do not permit forum shopping, thus, an aggrieved can only approach one of the two for disputes over the same matter. It was also so said by the State of Punjab in its Official Website Portal rera.punjab.gov.in. The above fact clearly indicates that in the face of provisions of the RERA, any action taken under the provisions of Act 1986 is not debarred. In view of above findings, we can safely say that RERA and PAPRA will not debar the jurisdiction of this Commission in Consumer Complaint No.230 of 2016 entertaining the complaints filed by a consumer alleging deficiency in providing service, negligence and adoption of unfair trade practice, on the part of the opposite parties.
17. In view of law laid down in the above noted authorities, it is held that this Commission is competent to entertain and decide the present complaint and the provisions of RERA do not bar the jurisdiction of the Consumer Fora. Accordingly, the objection raised by the opposite parties in this regard also stands rejected. Arbitration
18. The further objection of the opposite parties is that as per Arbitration Clause in the agreement, the matter between the parties is triable by the Arbitrator.
19. In this regard, it is relevant to mention here that the Larger Bench of the Honble National Commission, vide order dated 13.07.2017, passed in Consumer Complaint No.701 of 2015 titled as Aftab Singh v. EMAAR MGF Land Limited & Anr., also held that an Arbitration Clause in the afore-stated kind of Agreements between the Complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act, 1996. The Civil Appeal No.(s) 23512-23513 of 2017 (M/s EMAAR MGF Land Limited & Anr. Vs. Aftab Singh) filed against the said order of the Honble National Commission has also been dismissed by the Apex Court, vide order dated 13.02.2018. Review Petition (C) Nos. 2629-2630 of 2018 in Civil Appeal Nos. 23512-23513 of 2017 filed against the above said order dated Consumer Complaint No.230 of 2016 13.02.2018 was also dismissed by the Honble Supreme Court, vide order dated 10.12.2018. Consequently, it is held that the existence of an Arbitration Clause is not a bar to resolve this dispute by this Commission. Accordingly, the said objection of the opposite parties is also rejected. Merits of the case
20. Now, coming to the merits of the case, the complainant was allotted 3 BHK flat bearing No.602, measuring 1852 sq.ft., Block G4, 4th Floor in the project of the opposite parties for value of 51,02,040/- and after giving discount of 1,02,040/- the total value thereof was fixed as 50,00,000/-, as per letter dated 19.10.2012, Ex.C-7. Similarly, he was allotted another 3 BHK flat bearing No.604, measuring 1852 sq.ft., Block G3, 4th Floor in the project of the opposite parties for value of 53,13,388/- and after giving discount of 2,12,535/-, the total value thereof was fixed as 51,00,853/-, as per letter dated 27.10.2012, Ex.C-8,. It is the admitted case of both the parties that the complainant got transferred the booking amounts of both the above said flats towards purchase of 5 BHK flat bearing No.603, Block H1, 6th Floor, measuring 2850 sq.ft.; which was allotted to him, vide letter dated 07.02.2014, Ex.C-1. The value thereof is given in this letter as 84,47,204/- and after giving discount of 6,75,776/-, the total value was fixed as 77,71,428/-. A special discount of 2% i.e. 1,55,428/- was also given on the said amount and total payable amount was fixed as 76,16,000/-. The complainant alleged that the opposite parties offered 10% discount on the full payment, but no such Consumer Complaint No.230 of 2016 document in support of this plea has been produced on record. Moreover, since the discount was already given in the sale price of the flat/flats, vide the above said allotment letters, so the contention of the complainant that he is entitled to 10% rebate on the allotment price of the flat, in question, is not tenable. It is also the admitted case of the parties that allotments and payment receipts regarding the above said
3 BHKs flats were taken back by the opposite parties and fresh allotment regarding the flat, in question, and receipts were duly issued by the opposite parties. Perusal of receipts Ex.C-2 to Ex.C-6 as well as Statement, Ex.OP-10, shows that a total sum of 70,50,426/- was deposited by the complainant towards the flat, in question. As per allotment letter, Ex.C-1, the project was to be completed and the possession of the flat was to be delivered in May, 2015, subject to clearance of dues by the allottee. Against the settled price of the flat, in question, i.e. 76,16,000/-, the complainant has already paid a total sum of 70,50,426/-, meaning thereby only 5,65,574/- remains payable towards the price of the flat. The opposite parties offered possession thereof, vide letter dated 15.04.2016, Ex.C-10, whereby they also raised the demand of balance amount of 5,65,574/-, interest on account of delay in deposit of cost amount to 65,457/-, Service Tax to the tune of 2,86,032/- and maintenance charges of 2,82,150/- ; totaling 11,99,213/-. This figure has been increased to 19,17,492/- in the Statement, Ex.OP-10.
21. The plea of opposite party No.1 that opposite party No.3 has no concern with opposite party No.1 is not tenable, as in the reply, Consumer Complaint No.230 of 2016 the opposite parties themselves admitted in Para No.1 on merits that opposite party No.3 was looking after the sale of opposite party No.1 and he separated only in March, 2016 and started his own real estate business and as on the date of filing reply, he was the main business competitor of opposite party No.1. Moreover, no cogent evidence has been led by the opposite parties that opposite party No.3 had no concern with opposite party No.1 at the time of sale of the flat, in question, to the complainant. The complainant had been allotted earlier two flats in the year 2014 and the flat, in question, was purchased by him in lieu of earlier two flats on 07.02.2014, at the time when opposite party No.3 was working with opposite party No.1. In such circumstances, opposite party No.3 cannot be absolved from his liabilities being working with opposite party No.1 at the relevant time. So all the opposite parties are liable for the act of omission and commission made by the Company. Completion Certificate
22. Now, I have to ascertain, whether the opposite parties were in a legal position to deliver possession of the flat, in question, on 15.04.2016, when they sent offer of possession, Ex.C-10. The opposite parties alleged that their project is complete, with all the agreed facilities as per photographs, Ex.OP-14 (collly.). However, I find that only Partial Completion Certificate was issued to them, vide letters dated 08.12.2016 and 12.03.2018, Ex.OP-13 (colly.), that too subject to compliance of certain terms and conditions mentioned therein. However, there is no evidence on record that they have complied with Consumer Complaint No.230 of 2016 those terms and conditions. Section 14 of Punjab Apartment and Property Regulation Act, 1995 (in short, PAPRA) deals with responsibility of the promoter to obtain Completion and Occupation Certificate from the competent Authority, which reads as under:
14. It is the responsibility of the promoter-
(i) 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 if 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
(ii) 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 aspects 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.
23. Further, Clause 3.12 (i) of the Notification dated 07th July, 2015 published in the Punjab Government Gazette Extraordinary by Department of Local Government (Town Planning Wing), which is applicable to the properties falling within the Municipal Limits, provides as under: 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. Consumer Complaint No.230 of 2016
24. A reference can also be made to Section 272 of The Punjab Municipal Corporation Act, 1976, which reads as under:-
272. Completion Certificate. (1) Every person who employs a licensed 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 byelaws, 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 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, shall be deemed to have been granted.
25. The Honble National Commission in Sanjeev Malhotras case (supra), categorically held that legal possession cannot be delivered in the absence of Completion Certificate by the Competent Authority. It was held in Para No.5 as follows:
5. During the course of hearing, it was submitted by the learned counsel for the appellant that the completion certificate in respect of the project was obtained by the appellant on 15.03.2016. A copy of the communication dated 15.03.2016 from Municipal Council, Kharar has been placed on record. It is therefore, evident that the completion certificate having been received only on 15.03.2016, the appellant could not have offered legal possession of the apartment to the complainant at any time before that date. As noted earlier, the amount of Rs.1,81,375/- was demanded on 20.04.2015 and the amount of Consumer Complaint No.230 of 2016 Rs.2,12,489/- was demanded on 06.02.2016. The complainant was requested to pay the aforesaid amount so that the appellant could offer the possession of the flat. The said offer of possession was meaningless being unlawful as the requisite completion certificate had not been obtained by that date.
26. There is no evidence on record to prove that the flat, in question, or a part thereof has been got certified by the opposite parties from the local/competent authority, so as to deliver its complete possession to the complainant for his occupation. However, no Completion/Occupation Certificate issued by the competent authority has been produced by the opposite parties on the record, which itself is violation of above reproduced Section 14 of PAPRA and Clause 3.12
(i) of the Notification dated 07th July, 2015 published in the Punjab Government Gazette Extraordinary by Department of Local Government (Town Planning Wing) as well as Section 272 of The Punjab Municipal Corporation Act, 1976, reproduced above. Even till today, no Completion/Occupation Certificate has been produced before this Commission. Thus, in view of the law laid down by the Honble National Commission in the above noted authority, without issuance of such a certificate by the competent authority, the opposite parties cannot be said to be in a legal position to hand over possession of a particular flat, in question, to the complainant. Thus, without Completion/Occupation Certificate, the possession of the flat offered to the complainant on 15.04.2016 was just a paper possession. In such circumstances, it is held that the opposite parties failed to deliver possession of the plot, complete in all respects, to the complainant Consumer Complaint No.230 of 2016 within the stipulated period, as per terms and conditions of the allotment letter. Maintenance Charges
27. As already discussed above, the opposite parties demanded 2,82,150/- towards the maintenance charges, including Service Tax, as per offer of possession, Ex.C-10. It is settled that the maintenance charges can be levied only after delivery of complete possession, with Completion Certificate. At the sake of repetition, it is relevant to mention that since the opposite parties have not been issued Completion Certificate by the competent authority, so the offer of possession sent on 15.04.2016 was only a paper possession. Honble National Commission has categorically in Sanjeev Malhotras case (supra), held in Para No.6 as follows:
6. It has also been noticed by the State Commission that as per the agreement between the parties, the IFMS (Interest Free Maintenance Security) was payable within 30 days from the offer of possession. Since the possession could not have been offered vide letters dated 20.04.2015 and 06.02.2016, the demand of IFMS contained in the aforesaid letters would also be illegal and unjustified. In view of the law laid down by the Honble National Commission in the above noted case, the demand raised by the opposite parties for maintenance charges in the offer of possession, Ex.C-10, is not maintainable, since valid possession with Completion Certificate has not yet been delivered. However, it is made clear that they can raise the demand of maintenance charges, if any, only after delivery of Consumer Complaint No.230 of 2016 complete possession, along with all the agreed facilities and Completion Certificate issued by the competent authorities regarding the flat/project, in question.
28. So far as the demand of the opposite parties regarding Service Tax to the tune of 2,86,032/- is concerned, the same will be payable, if permissible under law, at the time of delivery of complete possession of the flat, in question, along with all the agreed facilities and Completion Certificate. The opposite parties are not entitled to charge interest on the alleged ground of delay in depositing the instalments, as out of the total cost of the flat, question, i.e. 76,16,000/-, the complainant has already paid a huge sum of 70,50,426/- i.e. only a meagre sum of 5,65,574/- remained to be paid on that count. As per allotment letter, Ex.C-1, the project was to be completed and the possession of the flat was to be delivered in May, 2015. However, since the opposite parties themselves failed to complete the project and to deliver the possession of the flat, in question, within the said stipulated period, therefore it cannot be said that there was any delay in payment of instalments, specifically when huge amount of 70,50,426/- has already been paid by the complainant. Furthermore, as per letter dated 03.10.2013, Ex.C-14, issued by Punjab Pollution Control Board to the Sub-Registrar, SAS Nagar, the opposite parties had violated the provisions of Water Act, 1974, the Air Act, 1981 and the Environment (Protection) Act, 1986 by continuing construction without having valid consent to establish (NOC) from the said Board as well as without obtaining environment Consumer Complaint No.230 of 2016 clearance under the EIA Notification dated 14.09.2006. The Sub Registrar was requested not to register any Sale Deed pertaining to the project of the opposite parties. Similar is the essence of letter dated 17.05.2017, Ex.C-15. Still further, as per letter dated 11.09.2018, issued by the Competent Authority-cum-SDM, Dera Bassi, due to serious irregularities in granting Completion Certificate to the project, in question, i.e. Maya Garden, the builder was directed to obtain a valid Completion Certificate from Municipal Council or concerned authority and submit a copy thereof to the said office. In continuation to the above said letter, letter dated 14.09.2018, Ex.C-18, was also written by Executive Officer, Municipal Council, Zirakpur to Sh. Satish Jindal,(opposite party No.2), M.D. of opposite party No.1. A reminder dated 05.10.2018, Ex.C-18, was further written to opposite party No.2 to comply with the above said letters. All these facts and circumstances clearly prove that the opposite parties were not having requisite permissions/approvals of the Competent Authorities, before setting up their project.
29. As per Section 5 (Development of land into Colony) of PAPRA, the opposite parties were liable to obtain permission from the competent authority for developing the colony, but they failed to produce on record any such permission. So, they also violated Section
5 of PAPRA.
30. As per Section 3 (General Liabilities of Promoter) of the PAPRA, they were required to make full and true disclosure of the nature of their title to the land, on which such colony is developed or Consumer Complaint No.230 of 2016 such building is constructed or is to be constructed, make full and true disclosure of all encumbrances on such land, including any right, title, interest or claim of any party in or over such land. It was also required to give inspection on seven days notice or demand of the layout of the colony and plan of development works to be executed in a colony as approved by the prescribed authority in the case of a colony. However, the opposite parties failed to comply with Section 3 of the PAPRA.
31. As per Section 9 of PAPRA, every builder is required to maintain a separate account in a scheduled Bank, for depositing the amount deposited by the buyers, who intend to purchase the plots/flats, but no evidence has been led on the record by the opposite parties to prove that any account has been maintained by them in this respect. As such, they also violated Section 9 of the PAPRA.
32. The opposite parties had been collecting huge amounts from the buyers for the development of the project. They are not to play the game at the cost of others. When they insist upon the performance of the promise by the consumers, they are to be bound by the reciprocal promises of performing their part of the agreement. The opposite parties have failed to comply with the aforementioned provisions of PAPRA, while launching and promising to develop their project. Thus, the delay in not delivering the possession of plot within the agreed period amounts to deficiency in service on their part, for which the complainant is to be suitably compensated.
33. The complainant has claimed interest at the rate of 20% per annum on the deposited amount. Honble National Commission in Consumer Complaint No.230 of 2016 case Kamal Sood v. DLF Universal Ltd. 2007 (3) C.P.J. 7 (NC), in similar set of circumstances, where the builder was at fault in not obtaining permission for construction in advance before issuing advertisement and collected money from customers without having any licence, ordered for refund of deposited amount along with interest at the rate of 12%, besides compensation. Thus, in view of the above authority as well as Rule 17 of PAPRA, the complainant is entitled to interest at the rate of 12% per annum on the deposited amount from 01.06.2015 till delivery of actual/physical and completion possession of the flat, in question, along with all the agreed amenities and Completion Certificate issued by the competent authority. Conclusion & Relief:
34. In view of my above discussion, the complaint is partly allowed and following directions are issued to the opposite parties:
i) to pay interest at the rate of 12% per annum on the amount of 70,50,426/- from 01.06.2015 till the actual and physical possession of the flat in question, complete in all respects, is delivered along with all the agreed basic amenities, Completion and Occupation Certificate issued by the competent authority. It is made clear that the remaining sale consideration of the flat, in question, mentioned above shall be adjusted at the time of delivery of possession from the aforesaid liability of the opposite parties; and Consumer Complaint No.230 of 2016 iii) to pay 70,000/- as compensation for the mental agony and harassment suffered by the complainant, including litigation expenses.
35. The compliance of this order shall be made by the opposite parties within a period of 30 days of the receipt of certified copy of the order. (JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT January 02, 2019. (Gurmeet S)
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