Odisha Real Estate Appellate Tribunal: In an appeal filed by the appellant welfare society (‘the Society’) against the impugned order passed by Odisha Real Estate Regulatory Authority (‘ORERA’) which denied the complaint of the Society stating that the Real Estate (Regulation & Development) Act, 2016 (‘RERA Act’) was inapplicable to their project, the Two-member Bench of Chairperson P. Patnaik, J., and Judicial Member S.K. Rajguru held that since a valid completion certificate was granted and the project was completed before the commencement of the RERA Act, the project would not fall under the Act’s ambit. Holding this, the Tribunal upheld the impugned order and dismissed the appeal.
Background
In 2017, an occupancy certificate was issued for the project, i.e., the D.N. Oxypark Apartment Complex, by the Bhubaneswar Development Authority(‘BDA’). Subsequently, the Society was formed and registered in 2018, and the project was finally delivered by respondent 2- the builder in 2019. The letter of delivery of possession stated that there were still some unsold flats, studios, apartments, shops, and parking spaces. After the execution of the letter of delivery of possession, the builder agreed to comply with different pending works within three months.
On 08-07-2019, the Society filed a complaint claiming that builder had promised many things in the project brochures and leaflets but miserably failed to comply with them as per the RERA Act. There were also allegations of violation of the RERA Act, BDA plan, and various agreements due to the illegal sale of parking areas and open units.
When the complaint was taken up for the first time, the ORERA had allowed it stating that the RERA Act applied to the project since the occupancy certificate was obtained after the RERA Act came into force. Aggrieved, the builder filed an appeal before this Tribunal wherein the case was remitted back to ORERA, and thus, the impugned order dismissing the complaint case against the builder without cost was passed. While passing the impugned order, ORERA came to the following findings:
- The Society was competent to file a case against builder under the RERA Act.
- In the instant case, the meaning of ‘competent authority’ or ‘local authority’ was attributed to BDA. Thus, it was the competent authority to issue completion and occupancy certificates.
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The completion certificate was issued to the promoter by the BDA on 22-02-2016, which was prior to the commencement of the Act, thus, the project was completed in all respects before the Act came into operation. Therefore, the Act was inapplicable to the project thus the complaint was not maintainable.
Analysis
The Tribunal agreed with the first finding that the Society was registered in 2018, thus, it was an association of persons or ‘body of individuals’ as per section 2(zg)(vi) of the RERA Act. Therefore, the Society being a ‘person’ was competent to file the complaint case under Section 31 of the RERA Act.
Regarding the applicability of the RERA Act, the Tribunal stated that Section 3(1) provided that the application for registration of the ongoing projects had to necessarily be filed by the promoter by the promoter within three months of the commencement. Under Section 3(2)(b), registration was not required in cases where the promoter had received the completion certificate before the commencement of the RERA Act.
The Tribunal referred to the case of Newtech Promoters & Developers (P) Ltd. v. State of U.P. (2021) 18 SCC 1, wherein the Supreme Court held that projects already completed and to which completion certificate had been granted before the commencement of the RERA Act were not under its fold. At the same time, the Act would prospectively apply after registration of the ongoing projects under Section 3. The Court had also held that all ongoing projects that commenced before the Act and for which a completion certificate had not been issued were covered under the RERA Act. Relying on the aforesaid case, the Tribunal stated that the deciding factor for the applicability of the RERA Act to a project was the issuance of a completion certificate.
Regarding the contention of the Society that the occupancy certificate issued by BDA was the completion certificate, the Tribunal stated that the subject matter of certification in the two certificates was different. The Tribunal explained that while the completion certificate certified that the real estate project had been developed according to the sanctioned plan, layout plan, and specifications, as approved by the competent authority, the occupancy certificate permitted the occupation of a building having provision for civic infrastructure such as water, sanitation, and electricity. The Tribunal stated that under the Orissa Development Authorities Act, 1982 (‘ODA Act’), the completion certificate is submitted under Section 20 by a registered Architect or an Engineer or a person approved by the Authority. On receipt of the competition certificate, under Section 20A the Authority considers the grant of occupancy certificate for authorizing occupation of the building or the premises.
The Tribunal further perused provisions of the ODA Act and the Bhubaneswar Development Authority (Planning & Building Standards) Regulations, 2008 (‘BDA Regulations’) to conclude that even under the ODA Act and BDA Regulations completion certificate and occupancy certificate are different being issued by separate persons in separate forms. In fact, the issuance of the occupancy certificate was dependent on the issuance of the completion certificate. Noting the aforesaid, the Tribunal rejected the contention of the Society that the occupancy certificate issued to the project was the completion certificate as per Section 2(q) of the RERA Act.
After perusing the completion certificate filed by respondent 2 and the occupancy certificate filed by the Society, the Tribunal stated that the occupancy certificate was issued as per the completion certificate. The Tribunal held that there was no doubt that the project was completed before the commencement of the RERA Act on 01-05-2017.
Regarding the contention that the Fire NOC was not accompanied by the completion certificate hence the certificate was invalid, the Tribunal held that since the NOC was issued before the commencement of the RERA Act and received by the BDA, it was not rendered invalid even if it was not enclosed with the completion certificate.
The Society also contended that the completion certificate was issued by the architect of the BDA who was not a competent authority under the RERA Act. The Tribunal held that as per Section 20 of the ODA Act and Regulation 67 of the BDA Regulations, the Authority can permit a registered architect or engineer to issue a completion certificate, and as such the BDA registered architect was entitled to issue a completion certificate in respect of the project.
The Tribunal held that completion certificates issued by registered architects or engineers as permitted by BDA as per Section 20 of the ODA Act in respect of projects completed prior to the commencement of the RERA Act would not be invalid as that would render all the projects in Odisha, which have received completion certificates from the registered architects or engineer in the pre-RERA period, ongoing, on the date of commencement of the RERA Act and consequently require their registration.
Thus, noting the aforesaid the Tribunal held that since the completion certificate dated 22-02-2016 was valid and the project was completed before the commencement of the RERA Act on 01-05-2017, the project did not fall under the ambit of the RERA Act. Holding this, the Tribunal upheld the impugned order and dismissed the appeal.
[D.N. Oxypark Residents Welfare Society v. Secretary, Odisha Real Estate Regulatory Authority, OREAT Appeal No. 184 of 2023, decided on 23-12-2024]
Advocates who appeared in this case :
For the appellant: S.N. Pattnaik, S. Mohapatra, and C. Das
For the respondent: B.P. Tripathy & Associates and S.R. Mohapatra, P.C. Mohapatra, S. Mishra, and K. Dey
