C.M.Application No.IA-01-2023

1. Heard.

2. The present appeal has been filed by the appellant along with an application for condonation of delay as the registry has indicated delay of 39 days in filing the instant appeal.

3. The cause shown in the affidavit filed in support of the application for condonation of delay to the view of this Court is sufficient. Accordingly, the application is allowed.

4. Delay is condoned.

Order on Appeal

1. For the purpose of admission, Shri Abhishek Khare, learned counsel for the appellant assisted by Ms. Aahuti Agrawal says that in the instant appeal assailing the order dated 08.12.2022 passed by Uttar Pradesh Real Estate Appellate Tribunal Lucknow (in short "Lucknow") in appeal No.308 of 2019 (Smt. Rajrani and another vs. M/S Agc Realty Private Limited), the main issue revolves around the expression 'ongoing project' which expression, infact, has not been defined under the Act, namely, Uttar Pradesh Real Estate (Regulation and Development) Act, 2016 (in short "Act of 2016"), however, the same has been indicated in the U.P. Real Estate Regulation And Development Rules, 2016 (in short " Rules of 2016"), particularly, Rule 2(h).

2. He submitted that this aspect of the case is required to be dealt with as it strikes the issue of jurisdiction of the Tribunal. If this Court comes to the conclusion that the project in issue of the present appellant was an 'ongoing project' as defined under Rule 2(h) of Rules, 2016, at the time of filing of the complaint, then in that case, the claim was rightly entertained else the Tribunal was not having jurisdiction to decide the claim of the private opposite parties and the order would be set aside on the ground of jurisdiction.

3. It would be apt to refer that the present appeal has been preferred by the appellant-M/S Agc Realty Private Limited under Section 58 of the Act of 2016. It is also settled principle of law that the appeal under Section 58 is akin to the second appeal as provided under Section 100 of Code of Civil Procedure, meaning thereby, if the appeal involves substantial question of law, then can only be entertained otherwise the appeal can be dismissed at the admission stage.

4. On the expression of 'ongoing project', the learned counsel for the appellant stated that the project was introduced / launched in the year 2009. This project is known as " Homes 121. NOIDA". As per the plan, Twenty Two Towers were to be constructed. Admittedly, when the Act and Rules of 2016, came into force, only Twenty One Towers were constructed rather completed in all aspects. It is in view of the fact that 'occupation certificate' of these Towers were provided by the competent authority, namely, New Okhla Industrial Development Authority, Noida (in short "Development Authority") on 25.02.2016.

5. He further stated that one tower i.e. Tower-W, out of Twenty Two Towers, the 'occupation certificate' though applied prior to coming into force of the Act and Rules of 2016, was not issued by the Development Authority. In this TowerW, the flat of the respondents is situated. Undisputeldy, the Flat No.12023, 12th Floor, Tower W was allotted to the respondent by the appellant.

6. He also stated that in Tower-W, there are as many as ninety two flats. As per the allotment letter dated 09.03.2012, the appellant (Promoter/ Developer) was under obligation to provide the possession of the flat by July 2014. As the possession was not given, the private opposite parties approached the U.P. Real Estate Regulatory Authority claiming refund of the amount deposited with the appellant. The amount claimed before the authority as per record was Rs. 75,87,757/-. The claim of the private opposite parties was opposed by the appellant by filing the written statement. In short, in the written statement regarding the delay, it has been indicated that, in fact, there was no delay in constructing the Tower-W. The Tower-W was constructed within time and the application was preferred for providing 'occupation certificate' regarding the Tower-W before the Development Authority in the year 2015.

7. At this stage, on query being put, neither the date of presenting the application nor the copy of the application could be placed before this Court.

8. Learned counsel for the appellant further stated that despite preferring the application in the year 2015 seeking 'occupation certificate', the authority failed to provide the 'occupation certificate', as such, there is no fault on part of the appellant. Moreover, Section 15-A of the U.P. Urban Planning Development Act, 1973 (in short "Act of 1973"), which is applicable in the instant case, provides deeming provision in relation to 'completion certificate' and accordingly, taking note of the fact that the application seeking 'occupation certificate' was preferred in the year 2015 and the Act of 2016 came into force on 01.05.2017, it can be deemed that the 'occupation/completion certificate' was issued by the authority concerned.

9. At this stage, a query being put to counsel for the appellant that as to whether the document i.e. application seeking 'occupation certificate' was filed before the Authorities under the Act of 2016 including the Tribunal in support of pleadings related to preferring an application seeking 'occupation/completion certificate' made in the written statement, he fairly stated that the application was not filed.

10. It would be apt to refer that it is settled principle of law that pleadings could be considered only when in support thereof there is an evidence on record and vice versa, meaning thereby, in absence of evidence, the pleadings cannot be considered and evidence in absence of pleadings cannot be considered.

11. It would also to be noted at this stage that copies of 'occupation/completion certificate' on record dated 15.02.2016 and 26.06.2018 indicate that regarding Tower-W, the inspection was carried out on 18.12.2017 and thereafter, 'occupation certificate' in relation to Tower-W was issued on 26.06.2018.

12. To support his case based upon Rule 2(h) (ii) and (iii), counsel for the appellant further stated that the project admittedly contains Twenty Two Towers and Twenty One Towers were completed and 'occupation certificate' in relation to these 21 Towers was issued by the Development Authority on 15.02.2016 and more than sixty percent apartments were handed over to the allottees. Thus, as per Rule 2(h), the project was not an 'ongoing project'. Thus, the Authority or the Tribunal under the Act of 2016 was not having jurisdiction to entertain and decide the case or appeal, as the case may be.

13. To substantiate the fact that prior to the Act of 2016, which came into force on 01.05.2017, more than 60% sale-deeds were executed, learned counsel for the appellant, based upon the supplementary affidavit dated 05.04.2023, stated that a perusal of Annexure SA-1, which is a copy of chart pertaining to registration of sale-deeds, would show that the sale-deeds of approximately 73% of the flats of whole project prior to commencement of the Act of 2016 were executed.

14. However, a perusal of the chart annexed with the supplementary affidavit reflects that no flat of Tower-W, in which flat in issue is situated and which form part of Phase-IV, was sold prior to coming into force of the Act of 2016.

15. During the course of the arguments on being asked that 'occupation certificate' or 'completion certificate' were to be obtained phase-wise/Tower-wise as per the brochure of the project or agreement between the parties, in issue, and that whether the same indicates separate date of completion of Towers and handing over the possession of the same, learned counsel for the appellant failed to reply the said queries based upon the documents available on record.

16. Before considering the submission of the counsel for the appellant, this Court is of the view that the decision of the Tribunal on issue No.6 is relevant, as the same relates to the issue involved in this appeal and while deciding the same, the Tribunal referred all the relevant provisions of the Act of 2016 and Rules of 2016. Accordingly, the same is extracted hereinunder:-

"15. Vide Issue No. (6) we are required to examine as to Whether there is any illegality or perversity in the impugned order dated 02.08.2019 15.1 As per the pleadings of the respondent, the respondent launched a real estate project in the name of 'Homes 121, Noida' in several phases consisting of 22 towers. The Noida Authority issued OC/CC on 15.12.2016 to the respondent for 21 towers containing 1640 dwelling units, copy of the same has been placed on record by the respondent along with its reply dated 02.11.2020 as R-3. The respondent in para 9 of the reply admitted that there remained only one power, namely Tower-W which contains only 92 dwelling units and construction whereof had also been completed in the year 2015. The issue of occupation certificate was lying with the Noida Authority and the competent authority of Noida issued occupation/completion certificate on 22.06.2018 in respect of Tower-W (Annexure R-6).

15.2 The appellant has brought on record a copy of the order dated 02.01.2019 of the Secretary, UP RERA, whereby the respondent was informed that the project of the respondent falls in the category of 'ongoing project' and by not registering the same with UP RERA the respondent violated the provisions of the Act 2016 and directed for registration of the same as per order of UP RERA dated 27.11.2018 along with prescribed penalty, within 7 days, failing which action will be initiated under the provisions of Section 59 of the Act 2016.

15.3 The learned counsel for the appellant further submitted that Regulatory Authority, without examining the direction of the Secretary, UP RERA issued by the competent authority of Noida on 22.06.2018, held that the project in question is not required to be registered, while directing the pleadings and prayer of the appellant. It was incumbent, against the pleadings and prayer of the appellant. It was incumbent upon the Regulatory Authority to proceed against the respondent for not registering the project with UP RERA, taking into consideration the fact that OC/CC of Tower-W has been issued by the competent authority Noida much after enforcement of the provisions of the Act 2016, wherein it was incumbent upon the promoter of ongoing project to get the same registered within three months.

15.4 It would be apt to understand the import of certain sections, definitions contained under the Act and the Rules framed thereunder. Section 3 of the Real Estate (Regulation and Development) Act, 2016 which came into effect on 25th March, 2016, is being reproduced below:-

Section 3 "Prior registration of real estate project with Real Estate Regulatory Authority"

(1) No promoter shall advertise, market, book, sell or offer for sale, or invite persons to purchase in any manner any plot, apartment or building, as the case may be, in any real estate project or part of it, in any planning area, without registering the real estate project with the Real Estate Regulatory Authority established under this Act:

Provided that projects that are ongoing on the date of commencement of this Act and for which the completion certificate has not been issued, the promoter shall make an application to the Authority for registration of the said project within a period of three months from the date of commencement of this Act:

Provided further that if the Authority thinks necessary, in the interest of allottees, for projects which are developed beyond the planning area but with the requisite permission of the local authority, it may, by order, direct the promoter of such project to register with the Authority, and the provisions of this Act or the rules and regulations made thereunder, shall apply to such projects from that stage of registration.

(2) Notwithstanding anything contained in sub-section (1), no registration of the real estate project shall be required-

(a) where the area of land proposed to be developed does not exceed five hundred square meters or the number of apartments proposed to be developed does not exceed eight inclusive of all phases:

Provided that, if the appropriate Government considers it necessary, it may, reduce the threshold below five hundred square meters or eight apartments, as the case may be, inclusive of all phases, for exemption from registration under this Act:

(b) where the promoter has received completion certificate for a real estate project prior to commencement of this Act:

(c) for the purpose of renovation or repair or re-development which does not involve marketing, advertising selling or new allotment of any apartment, plot or building, as the case may be, under the real estate project.

Explanation. -For the purpose of this section, where the real estate project is to be developed in phases, every such phase shall be considered a standalone real estate project, and the promoter shall obtain registration under this Act for each phase separately.

15.5 Thus under Chapter II of the Act 2016, registration of real estate projects become mandatory and to make the statute applicable and to take its place under Sub-section (1) of Section 3, it was made statutory that without registering the real estate project with a real estate regulatory authority established under the Act, no promoter shall advertise, market, book, sell or offer for sale, or invite persons to purchase in any manner a plot, apartment or building, as the case may be in any real estate project, but with the aid of provisions to Section 3(1), it was mandated that such of the projects which are ongoing on the date of commencement of the Act and more specifically the projects to which the completion certificate has not been issued such promoters shall be under obligation to make an application to the authority for registration of the said project within a period of three months from the date of commencement of the Act, except as the projects covered by sub section-(2) of Section 3 of the Act, as a consequence, all such home buyers agreements which have been executed by the parties inter se have to abide the legislative mandate in completion of their ongoing projects.

The term "ongoing project" has not been so defined under the Act while the expression "Real Estate Project" is defined under Section 2(zn) of the Act, which reads as under:-

"2(zn)- real estate project" means the development of a building or a building consisting of apartments, or converting an existing building or a part thereof into apartments, or the development of land into plots or apartments, as the case may be, for the purpose of selling all or some of the said apartments or plots or building, as the case may be, and includes the common areas, the development works, all improvements and structures thereon, and all easement, rights and appurtenances belonging thereto"

As per the legislative mandate, the Act is intended to apply even to the ongoing real estate projects. The expression "On Going Project" has been defined under Rule 2(h) of the U.P. Real Estate (Regulation and Development) Rules, 2016, which reads as under-

"2(h) "ongoing project" means a project where development is going on and for which completion certificate has not been issued but excludes such projects which fulfill any of the following criteria on the date of notification of these rules:

(i) where services have been handed over to the Local Authority for maintenance.

(ii) where common areas and facilities have been handed over to the Association for the Residents' Welfare Association for maintenance.

(iii) where all development work have been completed and sale/lease deeds of sixty percent of the apartment/houses/plots have been executed.

(iv) where all development works have been completed and application has been filed with the competent authority for issue of completion certificate."

The expression "Completion Certificate" has been defined under Section 2(q) and "Occupancy Certificate" under Section 2(zf) of the Act, which reads as under:-

"2(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;

"2(zf) "occupancy certificate" means the occupancy certificate, or such other certificate, by whatever name called, issued by the competent authority permitting occupation of any building, as provided under local laws, which has provision for civic infrastructure such as water, sanitation and electricity;"

15.6 Looking at the scheme of the Rules, the Completion Certificate can only be issued after all norms etc. have been complied with and only thereafter a project would escape from the mandate of registration.

15.7 Further, as per the scheme of Act 2016 and Section 3 in particular all "ongoing projects" that commence prior to the Act and in respect to which completion certificate has not been issued are covered under the Act. It manifests that the legislative intent is to make the Act applicable not only to the projects which were yet to commence after the Act became operational but also to bring under its fold the ongoing projects and to protect from its inception the inter se rights of the stake-holders, including allottees/home buyers, promoters and real estate agents while imposing certain duties and responsibilities on each of them and to regulate, administer and supervise the unregulated real estate sector within the fold of the real estate authority.

15.8 The Apex Court recently in M/s Newtech Promoters and Developers Pvt. Ltd. Vs. State of U.P. & others (Civil Appeal No.(s) 6745-6749 of 2021 arising out of SLP (Civil) No.(s) 3711-3715 of 2021 had the occasion to consider as to whether the Real Estate (Regulation and Development) Act, 2016 is retrospective or retroactive in its operation and what will be its legal consequence, if tested on the ambit of the Constitution of India. The Apex Court after extensive analysis of the aims and objects, provisions of the Act observed as under:-

"41. The clear and unambiguous language of the statute is retroactive in operation and by applying purposive interpretation rule of statutory construction, only one result is possible, i.e., the legislature consciously enacted a retroactive statute to ensure sale of plot, apartment or building. real estate project is done in an efficient and transparent manner so that the interest of consumers in the real estate sector is protected by all means and Sections 13, 18(1) and 19(4) are all beneficial provisions for safeguarding the pecuniary interest of the consumers/ allottees. In the given circumstances, if the Act is held prospective then the adjudicatory mechanism under Section 31 would not be available to any of the allottee for an ongoing project. Thus, it negates the contention of the promoters regarding the contractual terms having an overriding effect over the retrospective applicability of the Act, even on facts of this case.

42. What the provision further emphasizes is that a promoter of a project which is not complete/sans completion certificate shall get the project registered under the Act but while getting the project registered, promoter under an obligation to prescribe fresh timelines for getting the remaining development work completed and from the scheme of the Act, we do not find that the first proviso to Section 3(1) in any manner is either violative of Articles 14 and 19(1)(g) of the Constitution of India. The Parliament is always competent to enact any law affecting the antecedent events under its fold within the parameters of law,"

The Apex Court further drawing a distinction between retrospective and retroactive statutes observed as under

48. The distinction between retrospective and retroactive has been explained by this Court in Jay Mahakali Rolling Mills Vs. Union of India and Others, which reads as under:-

"8. "Retrospective" means looking backward, contemplating what is past. having reference to a statute or things existing before the statute in question. Retrospective law means a law which looks backward or contemplates the past, one, which is made to affect acts or facts occurring, or rights occurring, before it comes into force. Retroactive statute means a statute, which creates a new obligation on transactions or considerations or destroys or impairs vested rights,"

49. Further, this Court in Shanti Conductors Private Limited and Another Vs. Assam State Electricity Board and Others, held as under:- "67. Retroactivity in the context of the statute consists of application of new rule of law to an act or transaction which has been completed before the rule was promulgated. 68. In the present case, the liability of buyer to make payment and day from which payment and interest become payable under Sections 3 and 4 does not relate to any event which took place prior to the 1993 Act, it is not even necessary for us to say that the 1993 Act is retroactive in operation. The 1993 Act is clearly prospective in operation and it is not necessary to term it as retroactive in operation. We, thus, do not subscribe to the opinion dated 31.8.2016 [Shanti Conductors (P) Ltd. v. Assam SEB. (2016) 15 SCC 13] [LQ/SC/2016/1096] of one of the Hon'ble Judges holding that the 1993 Act is retroactive."

50. In the recent judgment of this Court rendered in the case of Vineeta Sharma Vs. Rakesh Sharma and Others wherein, this Court has interpreted the scope of Section 6(1) of the Hindu Succession Act, 1956, the law of retroactive statute held as under:-

"61. The prospective statute operates from the date of its enactment conferring new rights. The retrospective statute operates backwards and takes away or impairs vested rights acquired under existing laws. A retroactive statute is the one that does not operate retrospectively. It operates in futuro. However, its operation is based upon the character or status that arose earlier. Characteristic or event which happened in the past or requisites which had been drawn from antecedent events. Under the amended Section 6, since the right is given by birth, that is, an antecedent event, and the provisions operate concerning claiming rights or and from the date of the Amendment Act,"

"51. Thus, it is clear that the statute is not retrospective merely because it affects existing rights or its retrospection because a part of the requisites for its action is drawn from a time antecedent to its passing, at the same time, retroactive statute means a statute which creates a new obligation on transactions or considerations already passed or destroys or impairs vested rights.

52. The Parliament intended to bring within the fold of the statute the ongoing real estate projects in its wide amplitude used the term "converting and existing building or a part thereof into apartments" including every kind of developmental activity either existing or upcoming in future under Section 3(1) of the Act, the intention of the legislature by necessary implication and without any ambiguity is to include those projects which were ongoing and in cases where completion certificate has not been issued within fold of the Act

54. From the scheme of the Act 2016, its application is retroactive in character and it can safely be observed that the projects, already completed or to which the completion certificate has been granted are not under its fold and therefore, vested or accrued rights, if any, in no manner are affected. At the same time, it will apply after getting the ongoing projects and future projects registered under Section 3 to prospectively follow the mandate of the Act 2016."

15.9 We have also examined the provisions of the U.P. Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010, wherein in Chapter II under the heading of DUTIES AND LIABILITIES OF PROMOTERS vide Section 4(5) it has been provided that an apartment hay be transferred to any person only after obtaining the completion terificate from the prescribed sanctioning authority concerned as per balding bye-laws and under the heading of Explanation, it has been further provided that for the purposes of this sub-section "completion" means or the completion of the construction works of a building as a whole the completion of an independent block of such building, as the case may be.

15.10 The purpose of this beneficial legislation', it says "is to safeguard the pecuniary interest of the consumers/allottees". It was observed that the Act, obligates a promoter to get a project registered, which is either not complete or is sans completion certificate on the date of commencement of the Act.

15.11 The key word, i.e., "ongoing on the date of the commencement of this Act" by necessary implication, ex-facie and without any ambiguity, means and includes those projects which were ongoing and in cases where only issuance of completion certificate remained pending, legislature intended that even those projects have to be registered under the Act. Therefore, the ambit of Act is to bring all projects under its fold, provided that completion certificate has not been issued. Thus, those projects under Section 3(2) need not be registered under the Act and, therefore, the intent of the Act hinges on whether or not a project has received a completion certificate on the date of commencement of the Act. The project is ongoing or not it has to be distinguished on the basis of ongoing project under Section 3(2) (h) of the Act 2016 which states that where the promoter has received completion certificate for a real estate project prior to commencement of the Act 2016 notwithstanding anything contained in sub-section (1), no registration of real estate project is required and the project shall not be 'ongoing project', but in other cases with respect to the project existed at the time of commencement of the Act, the same need to the registered failing which the Regulatory Authority is required to take action under Section 59 of the Act 2016 and ensure that ongoing project is registered in order to make the provisions of the Act and Rules 2016 applicable.

15.12 Section 31 of the Act deals with filing of complaint and reads that "Any aggrieved person may file a complaint with the Authority or the adjudicating officer, as the case may be, for any violation or contravention of the provisions of the Act or the rules and regulations made thereunder against any promoter allottee or real estate agent, as the case may be.

15.13 An aggrieved person has not been defined in the Act, which means that this term should be given a wider and not a restrictive interpretation, in this scenario, any person can come to agitate his/her grievance before the Authority. If a complaint is made under section 31 for violation or contravention of the provisions of the Act (as the language of the statute suggests), it may also include a complaint by the allottee against the promoter for not registering the project, apart from other complaints of non-delivery, delayed possession or any other conceivable, or otherwise, an exploitative condition, where a person's life's earnings are at stake in a real estate project.

5.14 The authority would have to admit a complaint even if it is to reach a conclusion about the completion of a project or to draw further conclusions about the applicability of the Act. Merely because a project hasn't been registered can never be an acceptable reason to deprive the allottee of his/her statutory right to file a complaint.

15.15 In our view, the Authority has to act as a watchdog and play an active role in thwarting such malpractices which may result in closing its doors to any aggrieved person.

15.16 Further, the Authority cannot also turn a blind eye to its own powers under Section 35, under which it can act suo motu to call for information or clarifications relating to the affairs of any promoter, especially when an allottee complaint of incomplete work as well as infrastructural development, suggesting that the project may still be an ongoing project.

15.17 Sections 32, 34 and 35 of the Act read together leave no doubt that the Authority is a watchdog designed to ensure transparency in the real estate sector, to protect all players, be it the allottee, the promoter Or be a real estate agent. The underlying emphasis is to protect the interest of an allottee, who is a dwarf compared to the might of the promoters/developers.

15.18 No doubt the language of the statute would state that registration would not be required on completion of a project, but in the event of a complaint regarding deficiency in development works, it is the duty of the Authority to consider the matter, watch closely, otherwise such pleas may be resorted to by unscrupulous developers/promoters to defeat the valuable rights of the allottees.

15.19 We are of the opinion that the language of the statute also provides that a developer shall be protected from the registration and consequences of the Act, only in case where the project was completed with completion certificate. But, to establish a fact that whether the project is ongoing or completed just to free the promoter from the consequences of the act are matters of fact to be determined in the course of proceedings initiated by an aggrieved person. Nonapplicability of the Act cannot be a presumption to be derived from a mere fact simplification of a project not being registered.

15.20 Proceeding under section 59 of the Act is a course available to the Authority except for determination of a complaint. Once a complaint is filed on issues pointing out the deficiencies and defaults of a promoter, the Authority has to decide on its own whether to take recourse to the procedure prescribed under section 59 after filing a complaint.

15.21 As the provisions of the Act 2016 were enforced with effect from 1" May 2016 and, therefore, in absence of completion certificate for Tower-W, which contains the unit of the appellant, the Tower-W will fall in the category of ongoing project and, therefore, the respondent is required to register the same with UP RERA under the provisions of Section 3 of the Act 2016.

15.22 In our considered view the finding of the Regulatory Authority regarding no requirement of registration of the project of the respondent is not only perverse but also against the record. Apart from this, a direction has been issued for giving possession, which is contrary to the pleadings of the complainant/appellant.

15.23 It was also incumbent upon the Regulatory Authority to get the issue examined regarding status of the project by referring the matter to the administrative side of the Regulatory Authority, in the instant case the Secretary had already issued direction to the respondent for registration of the project being fallen in the category of ongoing project but surprisingly contrary to the said order leamed Bench of Regulatory Authority passed the impugned order.

15.24 On the basis of the aforesaid analysis and after examining the provisions of the Act 2016 and the Rules 2016, we hold that at the time of enforcement of the provisions of the Act 2016 (i.e. 01.05.2016) the project of the respondent fell in the category of ongoing project and was required to be registered with UP RERA. The directions for the same had already been issued by the Secretary of the UP. RERA. Thus, we find the impugned order dated 02.08.2019 is not only perverse but also illegal and against the record. Issue no. (6) is answered accordingly.

The Hon'ble Supreme Court vide its judgments (i) Civil Appeal No. 3182 of 2019 Kolkata West Industrial City Pvt. Ltd. Vs. Devashish Ryudra, (ii) Civil Appeal No. 3207 & 3208 of 2019 Marvel Omega Builders Pvt. Ltd. & others Vs. S. Wiharis Gokhale & others, (iii) (2018)5 SCC 442 [LQ/SC/2006/531] Fortune Infrastructure and another Vs. Trevor D. Lima & others and (iv) (2007)6 SCC 711 [LQ/SC/2007/738] Bangalore Development Authority Vs. Syndicate Bank was pleased to observe that it would be unreasonable to require the allottee to wait indefinitely for possession of the unit and the allottee is entitled to seek refund of the amount paid by him along with compensation.

17. On the basis of the aforesaid analysis we are of the considered view that the judgment and order dated 02.08.2019 passed by the Regulatory Authority in Complaint No. 11201824577 (Smt. Raj Rani & Shri Virendra Kumar Vs. M/S AGC Realty Pvt. Ltd.) is not sustainable in the eyes of law. Accordingly, the same is hereby set aside and we allow the appeal with the following directions:--

(i) The respondent is directed to refund the amount of Rs.75,87,7571- to the complainant/appellants.

(ii) The respondent is further directed to pay interest to the complainant/appellants on the amount of Rs. 75,87,757/- from the date of deposit till the refund of the amount at the rate of MCLR+1% per annum."

17. Considered the submissions made by the learned counsel for the appellant and perused the record including the order, under appeal, dated 08.12.2022 passed by the Tribunal.

18. The question in the present case is as to whether the project or Tower- W, in issue, would be covered under the expression 'ongoing project', which has been defined under Rule 2(h) of the Rules of 2016 or not.

19. In order to decide the issue aforesaid, this Court is of the view that following facts are required to be considered:-

(i) The appellant/promoter started the project in the name and style "Homes-121 NOIDA". As per plan, 22 Towers were to be constructed.

(ii) As per admitted case, with regard to 21 Towers except Tower, in issue, i.e. Tower-W were completed and 'occupation/completion certificate' was provided by the Development Authority on 15.02.2016.

(iii) As per agreement between the parties, the possession of the flat, in issue, i.e. Flat No. 1202 in Tower-W in Phase-IV was to be handed over to the Allottee(s) (respondents) in the month of July, 2014.

(iv) The relevant clause of agreement under the heading 'PERIOD OF POSSESSION' says that "The Tower wise possession of the flat shall be given to the Allottee(s). The Company hereby assures that possession of this flat be handed over to the Allottee(s) on or before July, 2014 in phase-IV".

(v) Agreement also says that "The proposed project shall be executed in phase/block wise. Each phase/block would be separate entity and Allottee(s) shall be (not legible) the possession on completion of their respective phase/block. No Allotttee(s) shall have the right to seek/claim possession (not legible) phase/block, other than the phase/block in which he/she has been allotted the flat. All amenities will be handed over on the completion of the project."

(vi) It would be relevant to point out here that it appears that deliberately the clause indicated in para (v), above, was not included in the pleadings/affidavits filed by the appellant before the authorities under the Act of 2016, as is evident from the record of the present appeal.

(vii) As per the case of appellant, prior to the Act of 2016, the Tower, in issue, i.e. Tower-W was constructed and an application was moved before the Development Authority seeking 'occupation/completion certificate'.

(viii) The said application was neither placed before the authorities concerned under the Act of 2016 including the Tribunal nor has been brought on record of the present appeal nor with regard to the same, the appellant has indicated the specific date in pleadings/affidavits submitted before the authorities under the Act of 2016 including the Tribunal.

(ix) Till enforcement of the Act of 2016 and Rules of 2016, the 'occupation/completion certificate' was not provided by the Development Authority to the appellant with regard to Tower-W.

(x) The 'occupation certificate' of Tower-W was given on 26.06.2018 after inspecting the site on 18.12.2017.

(xi) The demand-cum-offer of possession letter was issued on 31.07.2018.

(xii) The appellant was served with a notice to register the project under the Act of 2016, which was never opposed by the appellant by moving any appropriate application/representation or challenging the same before the appropriate authority.

(xii) From the aforesaid including the clauses of the agreement between the parties, referred above, it is apparent that the development work of the entire project was 'phase/block' wise.

(xiii) On 18.12.2017, the officials of Development Authority inspected the site for the purposes of providing 'occupation certificate' with regard to Tower-W, which fall in Phase-IV and on that date, the development work of Tower-W has been completed and thereafter 'occupation certificate' was provided to the appellant on 26.06.2018.

(xiv) Thus, the entire Phase-IV of the project could be considered to be completed on 26.06.2018 and prior to this, the Act of 2016 came into force. (xv) The record available before this Court reflects that the appellant failed to indicate that 60% or more sale/leas deeds of flat of Tower-W or Phase-IV, in which Tower-W is situated, have been executed and also that the services of this Phase-IV have been handed over to local authority or common areas and facilities have been handed over to the Association for Residents' Welfare Association (in short "RWA") for maintenance.

(xvi) From the record available, it is evident that with regard to other Towers also, the appellant has not stated in specific terms that the common area and facilities were handed over to the RWA and just to mislead, the appellant has indicated the date of registration of RWA under the Societies Registration Act, which is 01.09.2017.

20. The Act of 2016 does not define the expression "ongoing project". However, the same has been defined under Rule 2(h) of the Rules of 2016, which on reproduction reads as under:-

"2(h) "ongoing project" means a project where development is going on and for which completion certificate has not been issued but excludes such projects which fulfill any of the following criteria on the date of notification of these rules:

(i) where services have been handed over to the Local Authority for maintenance.

(ii) where common areas and facilities have been handed over to the Association for the Residents' Welfare Association for maintenance. (iii) where all development work have been completed and sale/lease deeds of sixty percent of the apartment/houses/plots have been executed.

(iv) where all development works have been completed and application has been filed with the competent authority for issue of completion certificate."

21. To claim that the project was not an 'ongoing project' the appellant is under obligation to plead and prove in the light of Rule 2(h). Accordingly, for deciding the issue involved in this appeal, this Court would consider the aforesaid in the light of Rule 2(h).

22. As regards to Sub-Rule (i) and (ii) of Rule 2(h) of the Rules of 2016, nothing has been brought on record, wherefrom, it can be deduced that the services of the project have been handed over to local authority for maintenance or that the common areas and facilities of the same have been handed over to RWA for maintenance including with regard to Tower, in issue, i.e. Tower-W or Phase-IV, in which Tower-W is situated, which was found completed on 18.12.2017 (date of inspection by officials of Development Authority) and thereafter, the 'completion/occupation certificate' with regard to Tower-W was issued on 26.06.2018.

23. It would be relevant to indicate here that from the record available, it is evident that with regard to the Towers in project, the appellant has not stated in specific terms that the common area and facilities have been handed over to the RWA and just to mislead, the appellant has indicated the date of registration of RWA under the Societies Registration Act, which is 01.09.2017.

24. Thus, for the reasons aforesaid, the appellant would not be entitled to the benefit of Sub-Rule (i) and (ii) of Rule 2(h) of the Rules of 2016.

25. Similarly, to get the benefit of Sub-Rule (iii) of Rule 2(h) of the Rules of 2016, the details with supporting evidence pertaining to execution of sale/lease deeds of 60% of apartments of Phase-IV or Tower-W were not brought on record, which reflects from the pleadings and documents filed by the appellant before the authorities under the Act of 2016 including Tribunal and the supplementary affidavit filed before this Court also does not indicates the same, albeit the same was required as this Court after considering the relevant clauses has already observed that the development work of entire project was 'phase/block' wise.

26. Similarly, to substantiate and prove that all development work with regard to Tower-W or Phase-IV was completed, which to the view of this Court was required as the development work of entire project was 'phase/block' wise, and also that an application was filed before the competent Authority for issuance of 'occupation certificate' before the Act of 2016 came into force, no document was placed before the authorities under the Act of 2016 including the Tribunal nor has been placed before this Court. Accordingly, the case set up by the appellant on the basis of deeming provision in relation to 'completion certificate', indicated in Section 15A of the Act of 1973 has no force. Whereas, the completion certificate regarding Tower-W, undisputedly, was given by the Development Authority on 26.06.2018.

27. In view of the aforesaid, this Court finds that the appellant would not be entitled to the benefit of Sub-Rule (iii) and (iv) of Rule 2(h) of the Rules of 2016.

28. Thus, for the aforesaid reasons, to the view of this Court, the project i.e. Phase-IV of the entire project, in issue, in which Tower-W and flat in issue is situated, would be covered under the expression 'ongoing project', as such, the claim raised by the respondents under the Act of 2016 was maintainable and accordingly, the Tribunal rightly allowed the claim of the respondents, which does not suffer from any error of law and as such, in the instant appeal, no substantial question of law is involved. The appeal is hereby dismissed. Cost made easy.