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2024 DIGILAW 380 (CHH)

M. Ahuja Projects (1) (P) Ltd. v. Green Glory Residents Welfare Society, Through Its President Mr. Ch. Damodar

2024-04-29

GOUTAM BHADURI, SANJAY S.AGRAWAL

body2024
JUDGMENT : Goutam Bhaduri, J. 1. Heard. 2. The present appeal is filed against the order dated 07.02.2024 passed by the Chhattisgarh Real Estate Appellate Tribunal. 3. The facts of this case are that, initially on an application filed by one of the beneficiary of the project of the appellant, the Chhattisgarh Real Estate Regulatory Authority (hereinafter referred to as ‘the RERA’) by its order dated 17.07.2018, in one of the proceedings, has passed the orders, wherein the Promotor was directed as follows : (i) to remove the defects in the Workmanship, as pointed out by the residents, (ii) to complete the entire work, which was depicted in the brochure, till the month of September 2018, (iii) that after completion of the work as mentioned in the brochure, the completion certificate be obtained from the competent authority, (iv) to pay an amount of Rs.31 Lakhs by way of a fixed deposit in the name of Green Glory Residents Welfare Society for carrying out the work of construction of swimming pool & (v) the Commissioner, Municipal Corporation, Raipur was further directed to ensure whether the work is complete, according to the projection made in the brochure and thereafter to issue a completion certificate. 4. The said order passed by the learned RERA on 17.07.2018 (Annexure A-3) was subject of challenge before this Court in writ petition bearing WP(C) No.2374/2018, which was dismissed by order dated 27.08.2018. Subsequently, a writ appeal bearing No.756/2019 was filed, and this Court by order dated 27.06.2019 has dismissed the said appeal. Thereafter, the said order was challenged before the Supreme Court, and the Supreme Court by its order dated 13.11.2019 has initially directed to deposit 50% of the amount less the amount already deposited in RERA in SLP No.25088/2019. According to the appellant, an amount of Rs.5 Lakhs was deposited on 23.10.2019 and thereafter, an amount of Rs.10.50 Lakhs was deposited on 02.12.2019. Subsequently, the Apex Court has dismissed the said SLP vide its order dated 26.09.2022. 5. Pursuant thereto, an execution petition was filed by the respondent, and the RERA by its order dated 02.01.2023 dismissed the said execution by holding that an amount of Rs.31 Lakhs have been paid in installment till 15.12.2022 and the appellant has already obtained the completion certificate dated 05.04.2021 from the Municipal Corporation, Raipur, meaning thereby, they have completed the project work and dismissed the execution petition. The Welfare Society challenged the said order of execution before the Real Estate Appellate Tribunal Raipur (hereinafter referred to as ‘The Tribunal’) in Appeal No.177/2023. Thereafter, the Tribunal, on 07.02.2024, allowed the appeal and remanded the matter back to the executing court ‘RERA’ with certain direction which primarily included that the completion certificate since was issued behind the back of the Welfare Society and the actual physical inspection was not carried out, therefore, the said process be carried out and thereafter, the order be passed. Being aggrieved by such an order, the present appeal. 6. Learned counsel for the appellant would submit that the completion certificate dated 05.04.2021 (Annexure A-6) was issued as per Section 2(q) of the Real Estate (Regulation and Development) Act, 2016 [hereinafter referred to as ‘Act of 2016’], which purports that the completion certificate would be within the meaning when the project is developed and completed and the said certificate is issued by the competent authority under the local Act. Learned counsel would submit that the completion certificate (Annexure A-6) was issued by the Municipal Corporation, Raipur, as per the Chhattisgarh Municipal Corporation and Municipalities (Registration of Colonizer, Terms and Conditions) Rules, 2013, as such, that certificate could not have been nullified by the Appellate Authority RERA, as it was within the definition of the Act and issued by the competent authority. Consequently, the order of nullifying the certificate in exercise of appellate power is beyond the scope of RERA and the definition which is given under the Act of 2016. 7. Per contra, learned counsel for the respondent would submit that the brochure of the Welfare Society would show the nature of development they projected. She would further submit that the photographs which have been annexed alongwith the appeal would show the fact that the completion has not been carried out as per the promise made in the brochure, therefore, the issuance of completion certificate cannot override the actual existing facts and the Appellate Authority has only referred the parties to go back to the RERA to adduce the evidence in this respect, therefore, no prejudice would be caused and the facts would come on actual surface of record and no question of law, hence, arises in this case. 8. We have heard learned counsel for the parties and perused the material available on record. 9. 8. We have heard learned counsel for the parties and perused the material available on record. 9. The primary contention of the appellant is that once the completion certificate vide Annexure A-6 has been issued by the Municipal Corporation, Raipur, it would be within the definition of Section 2(q) of the Act of 2016. For the sake of brevity, Section 2(q) of the Act of 2016 is reproduced hereunder:- “(q) ‘completion certificate’ means the completion certificate, or such other certificate, by whatever name called, issued by the competent authority certifying that the real estate project has been developed according to the sanctioned plan, layout plan and specifications, as approved by the competent authority under the local laws.” 10. The earlier order passed by the RERA would show that a specific direction was issued to affirm the fact that the development work has been carried out according to the promise made in the brochure and therefore, the completion certificate be issued. The initial order of the RERA dated 17.07.2018 (Annexure A-3), which has eventually been affirmed by the Courts, holds the field. 11. The question comes to fore is as to whether the completion certificate dated 05.04.2021 would be a sacrosanct document which would prevail over all the existing facts so as to take it within the fold i.e. to mean project complete. In order to appreciate the facts, we went through the documents and the promise made in the brochure. The several facts have been enumerated in the brochure. The object of Act of 2016 is for establishing the real estate regulatory authority for regulation and promotion of real estate sector and to ensure sale of plot, apartment or building as the case may be for the sale of real estate project in an efficient and transparent manner and to protect the interest of consumer in the real estate sector and to establish and adjudicate mechanism. the primary object therefore would be that it is a balanced act which also ensures the interest of the consumer. 12. A perusal of the brochure shows that several promises have been made with the photographs which reads as under:- - Grand entrance area. - Each flat provides soothing garden view. - One elevator exclusively caters to two flats per floor. - Well-defined parking space for every flat owner. - Designed pavers in parking area. - Provision of mailbox in lobby. A perusal of the brochure shows that several promises have been made with the photographs which reads as under:- - Grand entrance area. - Each flat provides soothing garden view. - One elevator exclusively caters to two flats per floor. - Well-defined parking space for every flat owner. - Designed pavers in parking area. - Provision of mailbox in lobby. - Club House featuring kids games and amenities. - Religious temple to pamper your soul. - The Community Centre is distinctively planned for occasional gathering, parties and festival occasions. - Car washing jet. - Power backup for lifts. - Rain water harvesting. - Fire safety and precaution measures have been considered for safety of residents. - 24 hour vigilance security. 13. If a consumer goes to book a flat or an apartment, naturally, he/she will have a legitimate expectation that eventually he/she would be benefited by the promises made to him/her as per brochure. The offer is made by a promotor to its customer, which potentially demonstrate the end finish product with amenities. When the person/beneficiary goes for booking, he accepts such offer on the basis of advertisement made. With the passage of time, the expectation of home has changed that of general public. The amenities which are highlighted in a project plays a major role as against the demand. Therefore, the offer made in a brochure would also be a part & parcel of project. The purchasers too would also expect the availability of the same. 14. The Supreme Court in the matter of “Sivanandan C.T. And Others vs. High Court of Kerela and Others” reported in (2024) 3 SCC 799 has evolved the doctrine of legitimate expectation under the Indian law. It held that by the 1990s, the Indian Courts incorporated the doctrine of legitimate expectation in the context of procedural fairness and non-arbitrariness under Article 14 of the Constitution of India. It further held that whether the expectation of a claimant is legitimate or not is a question of fact which has to be decided after weighing the claimant’s expectation against the larger public interest. 15. It further held that whether the expectation of a claimant is legitimate or not is a question of fact which has to be decided after weighing the claimant’s expectation against the larger public interest. 15. In the case in hand, by application of the said doctrine in part and also with the doctrine of estoppel, it is quite expected that when the brochure projects makes some promises and the amenities are to be provided, then the consumer would expect the same at the end of the day. Therefore, the order reverting the matter back by the Tribunal to RERA to find out those fallout, prima-facie, to avoid one eyed myth making. Therefore, the order cannot be said to be illegal or devoid of any jurisdiction. 16. The object of the Act of 2016 is also to protect the interest of the consumer. Section 2(q) of the Act of 2016 which defines the completion certificate, therefore, cannot be given a narrow meaning and the amenities in the project, which is promised has to be enveloped in the definition and the principles of purposive interpretation would come into play. Plain reading of statute with the object, the Court are supposed to attach the meaning to the provision which serve the purpose of such provision. Consequently, Section 2(q) of the Act of 2016 cannot be read in isolation and continued to certificate along issued by Corporation to put the physical development at site to a back seat and to shelve the object. 17. The Supreme Court in the matter of “Shailesh Dhairyawan vs. Mohan Balkrishna Lulla” reported in (2016) 3 SCC 619 has defined the principle of ‘purposive interpretation’ in para 31 of its judgment and the same is reproduced hereunder:- “31.The aforesaid two reasons given by me, in addition to the reasons already indicated in the judgment of my learned Brother, would clearly demonstrate that provisions of Section 15(2) of the Act require purposive interpretation so that the aforesaid objective/ purpose of such a provision is achieved thereby. The principle of 'purposive interpretation' or 'purposive construction' is based on the understanding that the Court is supposed to attach that meaning to the provisions which serve the 'purpose' behind such a provision. The basic approach is to ascertain what is it designed to accomplish? The principle of 'purposive interpretation' or 'purposive construction' is based on the understanding that the Court is supposed to attach that meaning to the provisions which serve the 'purpose' behind such a provision. The basic approach is to ascertain what is it designed to accomplish? To put it otherwise, by interpretative process the Court is supposed to realise the goal that the legal text is designed to realise. As Aharan Barak puts it: “Purposive interpretation is based on three components: language, purpose, and discretion. Language shapes the range of semantic possibilities within which the interpreter acts as a linguist. Once the interpreter defines the range, he or she chooses the legal meaning of the text from among the (express or implied) semantic possibilities. The semantic component thus sets the limits of interpretation by restricting the interpreter to a legal meaning that the text can bear in its (public or private) language.” 18. Applying the aforesaid interpretation read in Section 2(q) of the Act of 2016 to read the ‘completion certificate’, it cannot be confined to only the sanctioned plan and lay out and the sanctioned plan and lay out would take within its sweep the promise made in the brochure by promotor and completion certificate by Corporation without any participation of beneficiaries cannot be meant to curtail the promise made by promotor in the brochure. 19. Accordingly, we are of the view that the order passed by the Appellate Tribunal be remanded back to the executing Court ‘RERA’ to adduce the evidence, do not suffer any illegality, and hence, we do not find any question of law arises to consider in this case. 20. In the result, this appeal is liable to be, and is hereby dismissed.