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2010 DIGILAW 969 (JHR)

Nand Kishore Sahu v. State Of Jharkhand

2010-10-06

R.R.PRASAD

body2010
Judgment 1. THIS writ application has been filed for quashing the order dated 25-5-2010 passed by the Vice Chairman, Ranchi Regional Development Authority- respondent No. 3, whereby each of the purchasers including respondent No. 5 was asked to produce the possession letter, money receipt agreement etc. and to deposit a sum of Rs. 5,000/- for enforcing the registration of transfer by the owners of the land. 2. BEFORE adverting to the submissions advanced on behalf of the parties, the facts, leading to filing this case, are that the petitioners as well as the respondent No. 6 entered into a development agreement with respondent No. 4 (promoter/builder) for construction of the multi-storied building for the use as shops and offices over a piece of land bearing R.S. Plot Nos. 8, 9 and 10, Khata No. 03, Holding No. 1386, New Ward No. 3 of Ranchi Municipal Corporation, Ranchi. Thereupon, respondent No. 4 having got a map sanctioned made a construction of multi- storied building, consisting of basement + G + 7. But when certain deviation from sanctioned plan was found, the R.R.D.A. passed an order for stopping the construction. Thereafter, respondent No. 4 (builder) sought permission to complete the finishing work of the constructed area, which was accorded by the R.R.D.A. but at the same time, respondent No. 4 was directed to submit 'as built plan'. In response to that, 'as built plan' was submitted on 11-3-2003 and a sum of Rs. 81,000/- was deposited towards deviation charge. Thereupon, oh verification/inquiry being made, revised plan submitted by the respondent No. 4, was sanctioned on 30-3- 2010 by condoning the deviation on a condition of depositing a sum of Rs. 8,41,889/- which amount was deposited on 30/31-8- 2010, but before that, the builder had sent a legal notice calling upon the land owners (petitioners) to execute the sale-deed in favour of the purchasers to whom the builder had sold the flats, to which it was replied with that the builder has not discharged his statutory duty as 'No Objection Certificate' has neither been obtained from the R.R.D.A. nor from the Ranchi Municipal Corporation nor Fire Fighting Safety Device has been installed. It is further case of the petitioner that all of a sudden, the petitioners were served with a notice issued by the R.R.D.A. direct-' ing them to appear on 25-5-2010 and to. It is further case of the petitioner that all of a sudden, the petitioners were served with a notice issued by the R.R.D.A. direct-' ing them to appear on 25-5-2010 and to. show-cause as to why in spite of taking consideration money from the purchasers, sale deed has not been executed in their favour In response to that, the petitioners appeared. and filed a petition seeking time but their prayer was rejected and the impugned order was passed on 25-5-2010 itself under Section 16(4) of the Jharkhand Apartment (Property, Regulation and Ownership) Act, 2005 (here in after referred as the said Act), which order has been sought to be quashed. 3. MR. Rajesh Kumar, learned counsel appearing for the petitioners, submits that on the day when the impugned order was passed, the revised map had never been sanctioned and as such, any order enforcing registration unilaterally in terms of the provision as contained in Section 16(4) of the said Act is quite illegal. That apart, till date neither 'No Objection Certificate' nor 'Completion Certification' has been granted by the R.R.D.A. and as such, in absence of those documents, one cannot be asked to execute the sale deed, as it would be against the provisions of the said Act and also against the provisions of the Ranchi Regional Development Authority Act. 4. LEARNED counsel further submits that without there being any declaration through a written instrument bringing the property within the mischief of the Act, the impugned order has been passed, which is quite illegal, as in the aforesaid circumstances, it can easily be said that the Authority without verifying the fact as to whether the property concerned comes within the mischief of the Act or not has passed the order and, therefore, the impugned order suffers from illegality. Mr. Nilesh Kumar, learned counsel appearing for the respondent No. 6, by supporting the argument, advanced on behalf of the petitioners, submits that as per the agreement entered into in between the land owners and the promoter, due share has never been given and as such, any decision of enforcing registration unilaterally would be illegal. 5. MR. Mr. Nilesh Kumar, learned counsel appearing for the respondent No. 6, by supporting the argument, advanced on behalf of the petitioners, submits that as per the agreement entered into in between the land owners and the promoter, due share has never been given and as such, any decision of enforcing registration unilaterally would be illegal. 5. MR. Rajiv Ranjan, learned counsel appearing for the promoter/builder, submits that much before the Act came into force, the construction of the building got completed in the year 2003, but as there was some deviation, the petitioners were asked to submit the revised plan, which oh its submission and on making payment of a sum of Rs. 8,41,889/-, got sanctioned and,therefore, there has been no substance in the submission advanced on behalf of the petitioners that the order was passed without map being sanctioned and that in spite of due share, being given to the land owners, the land owners have been refusing to execute the sale deed in favour of the purchasers, though under the Act, the land owners are statutorily bound to execute the sale deed in favour of the purchasers and when the land owners refused to execute the sale deed in favour of the purchasers, the order was passed in terms of Section 16(4) of the said Act which, in the facts and circumstances, can never be said to be illegal. 6. MR. Rajesh Kumar, learned counsel appearing for the respondent No. 5 (one of the purchasers), submits that respondent No. 5, having purchased one of the shops in the building known as "Panchwati Plaza", had been emphasizing upon the builder and also the land owners to execute the sale deed, but they refused to execute the same and, therefore, there was no other option for the respondent No. 5 but to resort to the provisions of this Act. When this respondent move to the Competent Authority for directing the owners of the land to execute the sale deed, the owners were noticed who by appearing only sought for time indicating enough that they were not interested in executing the sale deed and, therefore, the impugned order was passed which can never be said to be illegal. When this respondent move to the Competent Authority for directing the owners of the land to execute the sale deed, the owners were noticed who by appearing only sought for time indicating enough that they were not interested in executing the sale deed and, therefore, the impugned order was passed which can never be said to be illegal. Having heard learned counsel for the parties and taking notice of the facts, stated on behalf of the parties, it does appear that it is not in dispute mat the purchasers have purchased either the shops or the portions meant to be used as office either from the land owners or from the promoter and were put in possession much before the Act came into force, but still the promoter/developer or the owners did not execute the deed of apartment though in terms of the provision, as contained in sub-section (5) of Section 15 of the said Act, they were required to execute a deed of apartment within three months of within the period of extension granted by the Competent Authority of the area where the apartment is situated or by the State Government. In case of non-execution of deed of apartment, one can resort to provision of sub-section (4) of Section 16 of the said Act for enforcing either the promoter or the owner of the apartment to execute a deed of apartment in terms of sub-section (4) of Section 16 of the said Act which reads as follows :- "Enforcement of Transfer :- (1) If the promoter or the owner of the apartment as the case may be, fails to execute a deed of apartment or an endorsement thereon, within three months of the date on which possession of the apartment is given or where the Competent Authority or the State Government has granted extension of period, on expiry of such extended period, the Competent Authority may either on a complaint or suo motu impose a penalty up to maximum of five thousand rupees per apartment and also may impose minimum penalty for each apartment of one hundred rupees for every day if the default continues, and the penalty may be recovered as an arrears of land revenue. This penalty shall be in addition to any action under the Stamp Act or Registration Act, 1908. (2) ........... (3).......... This penalty shall be in addition to any action under the Stamp Act or Registration Act, 1908. (2) ........... (3).......... (4) The application under sub-section (2) and (3) as the case may be, shall be given in prescribed form in writing in the office of the Competent Authority of the area for certificate to be produced before the Registration Officer for enforcing the registration of the transfer. After making such enquiry as may be necessary and satisfying itself that the applicant has done what he is required to do under the agreement, the Competent Authority shall issue a certificate to the concerned Registration officer within a period of two months from the date of application that it is a fit case for enforcing registration and shall further direct the applicant to present the deed of apartment though not executed by the other party, for unilateral execution and registration. The Registering Authority shall register the instrument. Notwithstanding anything contained in the Transfer of Property Act, 1882 or the Registration Act, the registration of the instrument made under this section shall be sufficient to vest the property with the applicant. Service charge of Rs. Five Thousand along with the each application shall be charged by the Competent Authority." 7. FROM its bare reading, it does appear that if the owner or the promoter refuses to execute a deed of apartment, transferee of the property of the apartment can enforce the registration of deed of transfer unilaterally by resorting to the provisions of sub-section (4) of Section 16. 8. FROM the pleadings, it does appear that when the purchasers purchased either the shop or the office portion and came in possession, they started insisting upon the promoter to execute the sale deed. 8. FROM the pleadings, it does appear that when the purchasers purchased either the shop or the office portion and came in possession, they started insisting upon the promoter to execute the sale deed. Thereupon, as per the case of respondent No. 4, he made request to the land owner to give the power of attorney in terms of one of the clauses of the developer's agreement for execution of the sale deed, but when the request was not exceeded to, a legal notice seems to have been given to the petitioners, which was replied with by them by making statement that till date 'No Objection Certificate' has neither been obtained from the R.R.D.A. nor from the Ranchi Municipal Corporation nor Fire Fighting Safety Device has been put in nor final possession as per the developer's agreement has been given and, therefore, unless those formalities are completed, it is not possible to execute necessary power of attorney in favour of the promoter and thus, the power of attorney was never executed in favour of the promoter so that he may execute the deed of sale nor the land owners executed the sale deed and under that situation, the purchasers resorted to the provision, as contained in sub-section (4) of Section 16 of the said Act, wherein, the Competent Authority on being satisfied by making inquiry that the applicant has done what is required to do under the agreement, passed the impugned order directing the purchasers to deposit requisite money for facilitating issuance of a certificate to the concerned registration office for enforcing registration unilaterally which I am told that it has already been done and, therefore, any objection, taken by the builder for not executing the sale deed, is not tenable in view of proviso to sub-section(3) of Section 15 of the said Act, which does stipulate that the breach of any condition of the original agreement or any plea of non- execution of deed in between the lessor and lessee will not be considered the sufficient cause for promoter not executing the deed of apartment in favour of the allottee. It be stated that under clause-5 of the developer's agreement, the land owner is obliged to execute the sale deed in favour of the purchasers on the request of the developer and that at one point of time, as it appears from Annexure-7, which is an application given to the Deputy Commissioner, Ranchi by "Panchwati Plaza Owners' Association" over which the petitioners have also put their signatures, the grievance was raised not only by the shop keepers, who had purchased the shops either from the builder or from the owners, but also by the petitioners that the promoter (respondent No. 4) is reluctant in executing the sale deed and, therefore, under that circumstances, it would not be open now for the petitioners to take objection when the step has not been taken for enforcing registration of the deed of transfer on the plea, stated above, and under this situation, the respondent - Authority seems to have rightly passed the order in terms of Section 16(4) of the said Act for enforcing registration unilaterally. 9. UNDER these situations, I do not find any illegality in the order dated 25-5-2010 passed by the respondent No. 3, which is under challenge. Accordingly, this writ application stands dismissed. Application dismissed.