THE HONOURABLE SRI JUSTICE D.RAMESH
WRIT PETITION NO.30832 OF 2021
ORDER:
This petition is filed under Article 226 of the Constitution of India, aggrieved by the orders of 2nd respondent dated 18.11.2021 passed in Rc.No:MAU61-DPOVIJ(PG)/38/2021-DP, in disposing of the grievance dated 28.06.2021 filed by the Petitioners, concluding that no action is required in the matter and proposing to take further action in accordance with the provisions of the Andhra Pradesh Metropolitan Region And Urban Development Authorities Act, 2016 [for short AP MR & UDA Act 2016], by ignoring the orders of this Court passed on 02.11.2021 in WP No.25361 of 2021; pursuant thereto proceeding with granting occupancy certificate to the 4th Respondent in respect of the Residential Multi Stair Apartment Complex being developed on the land in Sy. No: 80/3C, 81/2, 3, 5, 81/7, 8, 9 and 10 at Kunchanapally, Tadepally Mandal, Guntur District entrusted by the petitioners and others despite the orders dt.12.08.2021 directing to stop further construction pursuant to the Building Permission obtained vide B.A.No: 1168/3173/B/TDPLE/ KNE/2017 Dt:08.01.2019 by suppressing various material facts, and also despite several irregularities as well as deviations committed by them placed on record by the petitioners for appropriate consideration.
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2. The case of the petitioners is that the petitioners herein entrusted their land in an extent of Ac 5-65.5 cents equivalent to 27370.20 Sq. Yards (out of total land admeasuring Ac 7-00.5 Cents) in re-Survey No: 80/3C, 80/4B, 81/2, 81/3, 81/5, 81/6B, 81/7, 81/8, 81/9/1, 81/10 Corresponding to Old D. No: 4 situated in Kunchanapalli Village, Tadepalli Mandal, Guntur District, Andhra Pradesh to the 4th Respondent. Accordingly executed a Registered Development Agreement cum GPA bearing Doc. No: 7143/2015, dated: 08.05.2015. In terms of the said development Agreement, the petitioners, being land owners, are entitled to 40% of Built - up area in the form of Residential Flats out of the constructed areas and parking areas proportionately allocable and earmarked to the subject land out of the entire project area, proportionate undivided share of land. The 4th Respondent being the developer is entitled for the remaining 60%, towards their share.
3. Pursuant to such development agreement, a supplementary Agreement in Doc No: 5553/2017 was entered into by the petitioners and the 4th respondent on 25.04.2017; in terms of supplementary agreement thereof, the petitioners have been allocated with the following super built-up area, undivided share of land and car parking areas as mentioned below:
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Sl. Petitioner No. No.of Flats Extent of Undivided Super Share of Built-up Land(Sq.Yards) Area (Sft) 1 1St Petitioner 10 31330 1096.52 2 2nd Petitioner 08 27375 958.10 3 3rd Petitioner 17 52510 1837.79 4 4th petitioner 17 52445 1835.54 5 5th petitioner 58 132830 4648.99 Total 110 296490 10376.94
4. It is stated that Clause 11 of such supplementary Agreement specify and stipulates that - the division of Areas contained herein is final, confirmed and irrevocable unless any further supplemental agreement executed in writing among the parties, incorporating any modifications, amendments to this supplementary Agreement and also similar modifications in the supplemental Agreements entered with the landowners in respect of other Development Agreements, but no such further supplemental Agreements are entered between the parties, till date.
5. It is further stated that in terms of the Development Agreement entered by the parties, the construction of the project has to be completed within a period of 3 years from the date of approval of Plan with a Grace Period of 6 months and such period was expired on 21.10.2019, but no extension of time has been sought by the 4th Respondent from the Petitioners / Land owners. 4 It is further humbly submitted that though there is a clause of Penalty for the delay duly incorporated in the Development Agreement, the developer/ 4th Respondent did not choose even to pay any such penal charges so fixed for the delay under the agreement or interest payable thereon as provided in the agreement to the petitioners / land owners till date.
6. The 2nd respondent granted building permission order to the 4th respondent vide Ref. No: 38/2016/MGL 22.04.2016, subject to due compliance of various terms and conditions stipulated therein, among which - the basic and primary terms of such permission order being Sanctioned Plan shall be followed strictly while making construction and a copy of such Sanctioned Plan as attested by 2nd respondent shall be displayed at the construction site for public view and information. But the 4th Respondent did never choose to comply with such condition of the sanctioned plan with an ulterior motive of keeping the basic and vital information, terms of approval accorded by the 2nd respondent and the salient features of the Project, inaccessible to the public and prospective purchasers.
7. It is also stated that the developer/ 4th Respondent, unilaterally changed the building plan, without any communication or consent of the land owners / petitioners, which is in violation of Clause 24 of Development Agreement, thereby 5 adversely effecting their right and entitlement in the Super Built Up area and corresponding undivided share of land.
8. The petitioner mainly relied on clause 24 of the agreement, which reads as follows:-
a. Clause 24 of the agreement : says that agreement may not be amended except by an agreement in writing signed by both the parties herein and such agreement shall be read as part and parcel of this Agreement .] b. It is further declared that all the Annexure/s enclosed herewith to this development Agreement -cum- GPA shall be treated and shall form integral part and parcel of this Agreement and the parties are bound by not only these presents of the Agreement but also the contents and all other aspects covered under the Annexure/s enclosed herewith.
9. By the virtue of terminology used at Clause 24 of the Primary Agreement, no such amendment agreement has been entered into, by the parties and as such the primary Agreement as well as the Annexure/s thereto are binding on the parties, in its totality.
10. It is further stated that under the guise of modified plan, the developer / 4th Respondent totally gave up construction of LIG and MIG Blocks, which are part and parcel of the original plan, by paying the stipulated Shelter Fees in lieu of construction of such LIG and MIG Blocks pursuant to the revised Building Rules, 2017, which came into operation consequent upon the G.O.RT. No: 119, dated 28.03.2017, issued by the 1st respondent thereby substantially diluting entitlement of the petitioners for their share 6 in the total build up and saleable area and consequently causing substantial financial loss to the petitioners, in gross violation of the terms of agreement between the parties.
11. The petitioners herein falls under the definition of allottee under Section 2(d) of the Real Estate (Regulation and Development) Act, 2016 [for short RERA Act ] and also falls under the definition of promoter under to (zk) as per RERA Act 2016. The said provisions define
(d) "allottee" in relation to a real estate project, means the person to whom a plot, apartment or building, as the case may be, has been allotted, sold (whether as freehold or leasehold) or otherwise transferred by the promoter, and includes the person who subsequently acquires the said allotment through sale, transfer or otherwise but does not include a person to whom "such plot, apariment or building, as the case may be, is given on rent; (zk) "promoter" means,-
(i) a person who constructs or causes to be constructed an independent building or a building consisting of apartments, or converts un existing building or a part thereof into apartments, for the purpose of selling all or some of the apartments to other persons and includes his assignees; or
(ii) a person who develops land into a project, whether or not the person also constructs structures on any of the plots, for the purpose of selling to other persons all or some of the plots in the said project, whether with or without structures thereon; or ( iii) any development authority or any other public body in respect of allottees of -
(a) buildings or apartments, as the case may be, constructed by such authority or body on lands owned by them or placed at their disposal by the Government; or
(b) plots owned by such authority or body or placed at their disposal by the Government, for the purpose of selling all or some of the apartments or plots; or 7
(iv) an apex State level co-operative housing finance society and a primary co-operative housing society which constructs apartments or wildings for its Members or in respect of the allottees of such apartments or buildings; or
(v) any other person who acts himself as a builder, coloniser, contractor, developer, estate developer or by any other name or claims to be acting as the holder of a power of attorney from the owner of the land on which the building or apartment is constructed or plot is developed for sale; or
(vi) such other person who constructs any building or apartment for sale to the general public.
Explanation:- For the purposes of this clause, where the person who constructs or converts a building into apartments or develops a plot for sale and the persons who sells apartments or plots are different persons, both of them shall be deemed to be the promoters and shall be joint liable as such for the functions and responsibilities specified, under this Act or the rules and regulations made thereunder;
12. The claim of the petitioners is that in view of the aforesaid two definitions the landowner of the real estate project falls into both the shoes of the promoters as well as the allottees; at the same time, wherein the RERA Act being the beneficial legislation to allottees should even consider the stand of the co-promoters by taking into consideration of the preamble of the RERA Act, 2016 which is as follows:
"An Act to establish the Real Estate Regulatory Authority for regulation and promotion of the real estate sector and to ensure sale of plot, apartment or building, as the case may be, or sale of real estate project, in an efficient and transparent manner and to protect the interest of consumers in the real estate sector and to establish an adjudicating mechanism for speedy dispute redressal and also to establish the Appellate Tribunal to hear appeals from the decisions, directions or orders of the Real Estate Regulatory Authority and the adjudicating officer and for matters connected therewith or incidental thereto."
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13. It is further stated that under the guise of modified plan, the 4th Respondent is contemplating to change the basic features of the project mischievously to their advantage at the cost of the petitioners and land owners. On account of such mischievous modifications in the plan, the effective difference of owner's share is working out to around shortage of 15368.5 Sft in Super Built Area & Corresponding shortage of Undivided Share of Land in an extent of 37.90 Sq. Yards (ie., @ 0.315 Sft per SFT of Super Built Up area). The additional undivided share of land shown as per revised Adjustment is being worked out at 0.332 Sft per Sft of super Built up are, and in fact it is of no effective benefit/ value to the land owners /petitioners, as they could not claim any additional consideration from the prospective buyers on count of offering such additional extent of undivided share of land. Such an adjustment/appropriation is only deceitful, mischievous, and fraud played against the petitioners in gross violation of the terms of primary as well as supplementary Agreements entered between the parties.
14. It is further stated that in view of the aforesaid mischievous actions of 4th respondent, the petitioners lodged a criminal complaint against the 4th respondent with the police. Upon preliminary enquiry on the said complaint, police had registered a case in Cr. No.19/2021 for the offences under Section 420, 409, 9 506, 120-B R/w 34 IPC on the file of CID PS, A.P., Amaravathi, Mangalagiri. In the preliminary enquiry by the Police, it came out that the developer obtained all permissions and plan approvals from the competent authorities in the year 2016, but the developer did not complete the project and deliver property to the land owners in time with a dishonest intention and also caused criminal breach of trust violating the agreement conditions i.e., obtained revised plans without consent / MOU of Petitioners / land owners and also not issued NOCs to the Petitioner / land owners or prospective buyers of Flats (of land owners shares) though the petitioner remitted an amount of Rs 60,00,000/- for two flats as per the terms of Equitable mortgage created by the Petitioners over their share of land and Flats, thereby the developer cheated the land owners and caused wrongful loss to the petitioner land owner with mollified / malicious intention and the developer wrongly gained by executing sale deeds to the buyers / prospective purchasers and registering flats allocated to their share without giving scope to land owners for selling flats of their share. Pursuant to registration of aforesaid crime, the 4th Respondent herein and its directors being other accused persons in the crime approached this Hon'ble Court by filing a Criminal Petition in CRLP No: 4403/2021 seeking to stay all further investigation proceedings against them including arrest / coercive measures against them and their 10 employees in the said crime. on consideration of interlocutory application filed along with said CRLP this Court was pleased to stay all further proceedings pursuant to registration of FIR in Crime No: 19 of 2021 vide orders dated 04,08,2021 and the petitioners are taking necessary steps to get such order of stay vented and to pursue the aforesaid crime in accordance with law .
15. While so, on 28.06.2021 the petitioners reported the aforesaid irregularities and violations committed and mollified and mischievous actions of the developer /4th Respondent to the respondents 2 and 3, and requested them to take necessary action to protect the interest of the petitioners / land owners as well as buyers by strictly enforcing compliance of the building plan and terms and conditions governing thereof. Consequent to such complaint, the 2nd respondent vide their letter in SWO/1168/ 2017/1747 Dated: 12.08.2021, directed the 4th respondent to stop further construction immediately under the provisions of APMURDA Act 2016, under Section 90 until further orders. Aggrieved by such order, the 4th respondent approached this court by filing a Writ Petition in WP No.18639 of 2021 against the respondents 1 and 2 herein, seeking for direction to the respondents to issue occupancy certificate with respect to the subject project and also to set aside the aforesaid letter of 2nd respondent by deliberately not including the petitioners as the 11 respondents, though they are necessary parties for proper adjudication of the subject matter. This Court while disposing of the said Writ Petition vide Order dated 01.09.2021, at the stage of admission, observing that no adjudication on merits is required and suffice to issue a direction to the respondents to complete the enquiry and pass appropriate order, granted 15 days time to the respondent authority as sought for by the standing counsel for passing appropriate order in accordance with law.
16. It is further submitted that in the process of complying with the said directions of this court, the 2nd respondent held inquiry by giving opportunity of personal hearing to the petitioners as well as to the 4th respondent, wherein the petitioners have submitted their respective submissions in writing and the 2nd respondent is under obligation to consider the major lapses and violations committed by the 4th respondent.
17. It is further stated that the Building Rules 2012, AP CRDA Act, 2014 and AP Apartment (Promotion of construction & ownership) Act, 1987 were in force and operation, when the Development Agreement was entered by the Petitioners with the 4th respondent on 08.05.2015, and also when the 4th respondent/Developer applied for Building Permit and the Building Plan was approved and sanctioned by the Competent Authority on 22.04.2016. As such the authority has no power to grant 12 modification without consent of the Flat owners, as mandated under the said Rules. In the present case, the 4th respondent, Developer applied and obtained building permission through online PMS vide BA No. 1168/3173/B/TDPLE/KNE/2017 dated 08.01.2019 by suppressing several material facts, incorporating major changes in the then existing Plan sanctioned by the competent authority, arbitrarily and without following the aforesaid consent procedure and also other procedures as required under the provisions of the Law as applicable.
18. Further the petitioners relied on the decisions passed in C.
Sekhar Reddy Vs. CSR Estate Flat Owners Welfare Association, Kokapet, RR Dist& Ors1., wherein the Division Bench of this Court confirmed the requirement of the said consent of the owners for any change in the SANCTIONED PLAN. In the present case, the shares of 8 (eight) members of Landowners in the constructed area in the form of Flats were identified and a Registered supplementary agreement was executed on 25.04.2017. As such the consent of all the Flat purchasers of both the parties i.e., petitioners as well as Developer/4th respondent is mandatory and such requirement is not complied till date. Thus the 2nd respondent desperately failed in discharging their duty effectively while approving the supplementary / amended plan submitted by 1 2003 (3) ALD 553 13 the 4th respondent, without complying with such mandatory requirement.
19. It is also stated that the 3rd respondent has been formed and vested with necessary powers for effective implementation and to ensure strict compliance of the provisions of The Real Estate ( Regulation and Development) Act, 2016 (Central Act No: 16 of 2016) under the Andhra Pradesh Real Estate (Regulation and Development) Rules, 2017.
20. Further the petitioners relied on Section 14 of the said statute, which is extracted as follows:
"14. (1) The proposed project shall be developed and completed by the promoter in accordance with the sanctioned plans, layout plans and specifications as approved by the competent authorities.
(2) Notwithstanding anything contained in any law, contract or agreement, after the sanctioned plans, layout plans and specifications and the nature of the fixtures, fittings, amenities and common areas, of the apartment, plot or building, as the case may be, as approved by the competent authority, are disclosed or furnished to the person who agree to take one or more of the said apartment, plot or building, as the case may be, the promoter shall not make-
(i) any additions and alterations in the sanctioned plans, layout plans and specifications and the nature of fixtures, fittings and amenities described therein in respect of the apartment, plot or building, as the case may be, which are agreed to be taken, without the previous consent of that person:
Provided that the promoter may make such minor additions or alterations as may be required by the allottee, or such minor changes or alterations as may be necessary due to architectural and structural reasons duly recommended and verified by an authorised Architect or Engineer after proper declaration and intimation to the allottee Explanation.-For the purpose of this clause, "minor additions or alterations" excludes structural change including an addition to the area or change in height, or the removal of part of a building, or any change to the structure, such as the construction or removal or cutting into of any wall or a part of a wall, partition, column, beam, 14 joist, floor including a mezzanine floor or other support, or a change to or closing of any required means of access ingress or egress or a change to the fixtures or equipment, etc.
(ii) any other alterations or additions in the sanctioned plans, layout plans and specifications of the buildings or the common areas within the project without the previous written consent of at least two-thirds of the allottees, other than the promoter, who have agreed to take apartments in such building.
Explanation: For the purpose of this clause, the allottees, irrespective of the number of apartments or plots, as the case may be, booked by him or booked in the name of his family, or in the case of other persons such as companies or firms or any association of individuals, etc., by whatever name called, booked in its name or booked in the name of its associated entities or related enterprises, shall be considered as one allottee only.
(3) In case any structural defect or any other defect in workmanship, quality or provision of services or any other obligations of the promoter as per the agreement for sale relating to such development is brought to the notice of the promoter within a period of five years by the allottee from the date of handing over possession, it shall be the duty of the promoter to rectify such defects without further charge, within thirty days, and in the event of promoter's failure to rectify such defects within such time, the aggrieved allottees shall be entitled to receive appropriate compensation in the manner as provided under this Act".
21. In the light of the aforesaid Section 14 of the RERA Act, 2016 it is submitted that the 4th respondent did not seek the consent either from the petitioners/the landowners or from the prospective purchasers from out of the share of the landowners, hence, the 2nd respondent can't approve the revised plan without insisting for consent from the allottees of the said project, even as per Section 6 of the Andhra Pradesh Apartments (Promotion of Construction and Ownership) Act, 1987. Thus it is clear violation of 2 existing statues.
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22. It is further stated that since the 2nd respondent was actively considering to grant occupancy certificate to the 4th respondent, even without conducting detailed inspection of the project to ensure strict compliance of the terms of original plan approved by them and inclining to process the application of 4th respondent claiming occupancy certificate alleging that the structures are in consonance with the Sanctioned Plan and proceeding ahead to grant occupation certificate, we have approached this Court by filing Writ Petition in WP No: 25361 of 2021 thereby praying appropriate directions to the respondents 2 and 3 to comply with their statutory obligation of ensuring strict compliance of the terms of building permission in accordance with law. This court was pleased to dispose the said Writ Petition vide orders dated 02.11.2021 thereby directing the 2nd respondent to pass appropriate orders on the complaint made by the petitioners in accordance with law, considering the objections, if any, submitted by either of the parties within six (06) weeks from the date of receipt of copy of said order.
23. It is further stated that though the 2nd respondent without making any reference to the above order and also without properly appreciating and interpreting the objections raised by the petitioners herein, arrived at an erroneous conclusion that no action is required in the matter and expressed that they will take 16 further action in accordance with various provisions of AP MR & UDA Act 2016, while reconfirming that at present the proposal is under shortfall, passed the impugned order in Re. No: MAU61- DPOVIJ(PG)/38/2021-DP dated 18.11.2021 in a very mechanical and routine manner, ignoring the directions and overlooking the spirit and context of the order of this Court. Hence, the present Writ Petition.
24. Replying to the said contentions, the 4th respondent has filed counter, specifically denying the allegations made in the writ petition and submitted that the present writ petition is liable to be dismissed for the sole reason of suppression of material facts by the petitioners, as they have not mentioned about the revised plan dated 08.01.2019. The petitioners wilfully suppressed the emails dated 13.05.2019 where the petitioners were being intimated about the variations in their entitlement vide letter dated 30.04.2019 consequent to the revised lay out. In fact, the petitioners have also executed an Agreement of Sale cum GPA dated 27.12.2019 by referring to the revised plan. These crucial facts have been suppressed by the petitioners before this court and obtained interim orders by deliberately misrepresenting the facts before this court. The honourable Supreme Court as well as this Court, in catena of decisions, held that a litigant who comes to the court with unclean hands is disentitled for any relief. 17
25. Further the 4th respondent placed reliance on the decision passed in Dalip Singh Vs. State of Uttar Pradesh & Ors.2, the wherein the Honourable Supreme Court held that :
"1. For many centuries, Indian society cherished two basic values of life i.e., Satya' (truth) and Ahimsa' (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part ex justice delivery system which was in vogue in pre-independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences I. However, Post independence period has seen drastic changes in our value system. The materialism has over- shadowed the old ethos and the quest for personal gain has become so intense that hose involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.
2. In last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final." litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final."
26. Replying to the averments made by the petitioners that there has been delay in the completion of the project and the 4th respondent did not choose to pay the penal charges for the delay caused, learned counsel for the 4th respondent submitted that the petitioners are delaying the completion of the project by stalling the issuance of the occupancy certificate on vexatious and untenable grounds. It is a matter of record that the official respondents have 2 (2010) 2 SCC 114 18 caused inspection of the subject project and after satisfying themselves about due compliance of the constructions made by the 4th respondent in accordance with the approved plans, gave a go ahead for issuance of the occupancy certificate in respect of the project. Unfortunately, the petitioner who is a chronic litigant field the present writ petition so as to delay the issuance of the same thereby seeking to escape from their obligation of the refund of the security deposit amounts of Rs.6.25,00.000/- to the 4th respondent in terms of the subject Development Agreement. As evident from the development agreement and also the supplementary agreement, the 4th respondent has to deliver the petitioners share of flats only after issuance of the occupancy certificate. It is a matter of record that the occupancy certificate has not yet been issued in respect of the subject project and in view of the same, flats falling to the petitioners share have not been delivered to them. After the above criminal case got registered, the writ petitioners have been trying to cause damage to the project by sending unknown persons to the subject site. This led to filing of W.P.No.1115 of 2022 before the High Court seeking police protection and the High Court vide order dated 12.01.2022 directed the police to keep a vigil on the subject project and maintain law and order. Even thereafter, the petitioners are creating disturbance leading to lodging of another complaint dated 19 26.01.2022. In reply to the allegation that sanctioned plan is not kept for public view, it is submitted that the copy of the sanctioned plan along with all the information has been very much displayed at the subject site at a conspicuous place which is visible for the general public.
27. With regard to the allegation that the 4th respondent unilaterally changed the building plan without any communication/information or consent of the petitioners adversely affecting their right and entitlement in the super built-up area and corresponding undivided share of land, it is submitted by the learned counsel for the 4th respondent, that as per clause 6 of the supplementary agreement dated 25.04.2017, the respondent is "absolutely entitled and empowered to obtain modifications, add and/or deletions in the contracts of the permitted and sanction plan already granted and to make such modifications, additions, deletions, etc., in the sanction plan as may be required by the Developer or directed/permitted by the Authorities concerned or due to any technical exigencies without consent of the Landowners herein and however such modifications or changes or deletions or deletion of blocks or reduction in the constructed areas in the existing permit shall not in any way reduce the built-up area in the shape of residential flats and Parking areas towards the share of the landowners under this agreement since the same is final in all 20 respects. However, in the event, if upon such revision, any additional area is constructed as per such revised plans over and above the allotments made under this agreement to the landowners and the developer, the parties herein are entitled to share such additional areas and proportionate parking areas as per their entitled shares in the terms of Development Agreement". As such, the 4th respondent is well within their rights to go for a revised plan subject to such modifications or changes not effecting or reducing the built-up area or entitled share of the petitioners. The exercise undertaken by the 4th respondent for the revised plans is well within the knowledge of the petitioners, as evident from the emails and the letter, which have been addressed contemporaneously. The said revised plan was also accepted by the petitioners, as evident from the Agreement of Sale cum GPA dated 27.12.2019, as such, disputing the same at this length of time does not arise.
28. With regard to the allegation that the 4th respondent is totally gave up construction of LIG and MIG blocks, which are part and parcel of the original plan by paying the stipulated shelter fees in lieu of, learned counsel submitted that as already stated above, the petitioners were well aware of the revised plans and also the payment of Rs.22,12,800/- paid by the 4th respondent towards the shelter fee. As such, the revised plans inured to the benefit of the petitioners also and for this precise reason, there was no objection 21 from their side and in fact, they have acted upon such revised plans by executing GPAs. However, to escape from their financial obligations, false case has been set up and the 4th respondent is being harassed by the petitioners. Due to the delay in obtaining the occupancy certificate, costs are mounting and the 4th respondent is put to heavy loss and as such, the 4th respondent reserves their right to claim damages against the petitioners for the wrongful loss caused to them. Furthermore, even the nature of the complaints levelled by the petitioners, RERA Act has no application whatsoever to the present case and the averment against the 4th respondent that the quantum and extent of area for sale and corresponding undivided share of land entitled by the petitioners has been changed by the 4th respondent unilaterally in violation of Clause 24 of the Development agreement, is wholly false and baseless.
29. Replying to the allegations that under the guise of modified plan, the 4th respondent is contemplating to change the basic features of the project mischievously to their advantage at the cost of the petitioners and land owners, it is submitted that the said allegations are blatantly false statement and the same is emphatically denied.
30. It is stated by the 4th respondent in their counter that pursuant to the G.O.Ms.No. 119, dated 28-03-2017 of the 22 Government of Andhra Pradesh with comprehensive Building Rules, 4th Respondent has submitted the revised building plans to 2nd respondent for its approval in terms of the Rule 178 of said Building Rules, 2017. The 2nd respondent being satisfied with the revised building plans and after collecting an amount of Rs.22,12,800/- towards shelter fees, had accorded the revised building permission vide File No.1168/3173/B/TDPLE/KNE/2017 dated 08.01.2019 and in pursuance of said revised approved plans, there was no adverse effect to the writ petitioners compared to the area allotted to them through Supplementary Agreement. On the other hand, the petitioners have proportionately benefited with additional built-up area admeasuring 910 Sq. ft together with proportionate additional undivided share of land, thus the 4th respondent made construction activity in all respects strictly in consonance of the revised approved plans. As per the revised plans, the originally contemplated EWS/LIG Block as per the then rules got deleted on collecting Shelter Fee in terms of Rule 178 of said G.O.Ms.No.119, hence the question of deviation as alleged by the petitioners doesn't arise.
31. Further it is stated that though the petitioners alleged that they could not claim any additional consideration from the prospective buyers on account of substantial extent of undivided share of land, the 4th respondent has not yet delivered the 23 possession of petitioners' share of flats to them, hence, the question of the petitioners alleging that there is short fall in the area allotted to them does not arise. It is also relevant to note that while the writ petitioners allege that they have been deprived of their total share of benefits under the Development agreement and the supplementary agreement, the 4th respondent stoutly deny the same and asserts that the petitioners' entitlement under the Development agreement and the supplementary agreement is more than what they were supposed to receive.
32. That in fact, the development agreement contemplates the remedy of arbitration and if the petitioners are so advised, have to invoke the arbitration clause so as to get adjudication on the disputed questions of fact raised by the Writ Petitioners instead of filing writ petition. The petitioners have lodged the said criminal complaint with a malafide intention so as to intimidate the 4th respondent and escape from their financial obligations under the Agreements which are rightly stayed by this court. He further submitted that the 4th respondent has clarified all the shortfalls alleged under the notice dated 12.08.2021 issued by the 2nd respondent under APMURDA Act, 2016, the official respondents after satisfying themselves about the same held that the project deserves the occupancy certificate. The respondents have scrupulously adhered to the development agreement / 24 supplementary agreement and the constructions plans sanctioned by the authorities concerned.
33. Further stated that the 2nd respondent has examined the grievances of the petitioner in detail vis-a-vis the reply given by the 4th respondent, passed the impugned order by giving detailed reasons thereby rejecting the petitioners' case. By virtue of the present writ petition, the writ petitioners wants this court to enter into the disputed questions of fact, which is impermissible. It is emphatically denied that the respondent authorities did not cause physical inspection of the project site to ensure themselves of the strict compliance as to terms of the permission accorded. Furthermore, because of the interim orders, the issuance of occupancy certificate has been stalled and any further delay would not only have financial impact on the project but also creates unrest among the purchasers. Unless this Honourable High Court vacates the interim order dated 29.12.2021 passed in W.P.No.30832 of 2021, the 4th respondent would suffer serious prejudice and irretrievable loss.
34. The 2nd respondent has filed counter and stated that they have granted building permission vide BP No. 38/2016 MGL2 dt.22.4.2016 to the 4th respondent pursuant to building application made by the 4th respondent along with the agreement dt. 8.5.2015 and proof of title, for development of high rise building 25 with Cellar+Cellar+G+14 floors residential blocks A,B,C,D,E, amenities block, EWS & LIG Block. Subsequently the 4th respondent submitted revised building plan dt. 21.10,2017 along with required fee through OBPS vide BA No. 1168/3173/B//TDPL/KNE/2017 for construction of Cellar+Cellar+G+14 floors residential blocks A,B,C,D,E, amenities block-I, II (proposing amenities block II instead of LIG, EWS block, duly paying the shelter fee in lieu of EWS & LIG block as per the GO.Ms.119 dt.28.03.2017). As per procedural post-facto verification of the application for revised building plan and the documents furnished, the multi-storied building committee having found to be in consonance with Building rules, recommended for confirmation of revised plan vide BP order No. 1168/3173/B//TPL/KNE/2017 dt. 8.1.2019 subject to payment of drainage charges, revised parking plans, written consent from 2/3rds of allottees regarding the acceptance of deletion of EWS and LIG Blocks from the 2016 sanctioned plan and addition of amenities block with a built up area of 618.735 Sq.Mts. As per DPMS endorsement dt.25.05.2019, the 4th respondent submitted notarized affidavit of stamp dt.24.02.2021 stating that 36 flats were allotted and submitted consent forms from 2/3rds of the (allottees (26 members) as per Section 14(2) of AP RERA Act, 2016 upon that the 2nd respondent acted in good faith on the list of 26 allottees submitted by the 4th respondent as required under the RERA Act, 2016.
35. It is also stated that the building permission is concerned, it is only a provisional permission towards regulated development and it does not give proof of any title. With regard to the correctness of number of allottees and two thirds thereon for the purpose of Section 14(2) of the RERA Act, 2016, 3rd Respondent i.e., AP RERA is the concerned authority and the 2nd respondent is nothing to state. The petitioner's rights are protected under Section 18 of the said Act. 2nd respondent will issue occupancy certificate only after post verification and confirmation of the revised Building plan, subject to satisfaction of documents required, applicable fee payment as per A.P. Building Rules-2017. According to section 114(2) of the AP Metropolitan Regions and urban Development Authorities Act, 2016 governing this respondent at the relevant time; the permissions, NOC's, and other clearances granted by the authority shall be construed from the planned development point of view and not construed as conferring the ownership rights or affect the ownership rights.
36. It is stated that pursuant to petitioner's complaint dt. 28.6.2021 a notice was issued to the 4th respondent. In the mean time 2nd respondent also received a letter from the, ADGP-CID stating an enquiry has been ordered and enquiry is in progress, 27 this authority has issued a shortfall endorsement to the PMS vide letter No. EDS/1168/2017/1748, dt. 12.8.2021 to submit the proposal along with the outcome of the enquiry for further action. Later the 4th respondent filed WP No. 18639 of 2021 which was disposed of directing this authority to pass orders in accordance with law. The 4th respondent Developer has not yet submitted the occupancy file through OBPS portal and as said above the instant revised building application submitted by the 4th respondent vide OPS portal of DPMS application No. 1168/3173/B/TDPLE/KNE/2017 is still pending for confirmation, as per A.P. Building Rules-2017. Pursuant to the orders in W.P. No. 18639 of 2021 this respondent authority passed the impugned orders dt. 18.11.2021 stating that the proposal is under shortfall, this authority is absolved of any ownership disputes and discrepancies.
37. The revised Building application submitted by the 4th respondent is under shortfall and not yet confirmed by the 2nd respondent-Authority. Hence issuing of occupancy certificate doesn't arise at this stage and the 2nd respondent has no power to decide the civil disputes between the parties.
38. Based on the above averments, learned counsel for petitioners contended that the action of the respondents is violtaive of Section 14(2) of AP RERA Act as the 4th respondent has applied 28 for revised building plan without the consent of the required number of allottees/owners.
39. Learned counsel for the petitioners further contended that a Writ Petition 6983 of 2021 is filed before this Court where the action of the 2nd respondent in granting the permission to the 4th respondent is challenged, and this Court passed an order directing the petitioner to make a complaint before the competent authority under section 7 of the RERA Act and the same be disposed of within 6 weeks from the date of that complaint. However, the 4th respondent has not yet submitted the occupancy file through OBPS Portal and as such said revised building application No.1168/3173/ B/TDPLE/KNE/2017 is still pending for confirmation.
40. Learned counsel for the petitioner contended that harping on clause 6 by 4th respondent shows his malafide intention in obtaining revised plan and the respondents have no right to stop the petitioners entering into the petitioners' share of Flat in respect of clause 7 of supplementary agreement which reads as follows:
7. The respective parties shall be deemed to be the absolute and exclusive owners of the areas allotted towards their respective shares as shown in the Annexed tabular statements with full rights, powers and freedom to deal with them in the manner as they like including the power to sell, alienate, convey and transfer and whenever the DEVELOPER willing to alienate the Residential flats along with proportionate Parking areas and 29 undivided share of land fell towards the exclusive share of the DEVELOPER, the DEVELOPER can independently execute Agreement/s of Sale in favour of the prospective purchasers, receive the advance sale consideration, total sale consideration to itself, to execute and register Sale Deed/s by the DEVELOPER in its capacity as a DEVELOPER and also being GPA holder of the LANDOWNERS herein and other Landowners in terms of GPA powers granted already under the above referred Four Development Agreements -cum- GPAs.
41. It is contended that by virtue of Clause 7, the developer can independently execute agreement. Further replying the allegation that an e-mail was sent to petitioners, petitioners' counsel submitted that it was sent by third parties but not by the respondents, hence, it does not stand as communication given by the respondents. And also the communication letter dated 30.04.2013 to the petitioners regarding the revised supplementary agreement is not registered.
42. Refuting the above contentions, the 4th respondent submitted that the petitioners wilfully suppressed the emails dated 13.05.2019 where the petitioners were intimated about the variations in their entitlement consequent to the revised layout, upon obtaining the revised permission the petitioners were also intimated about the same vide letter dated 30.04.2019, as such the respondent was totally transparent about obtaining the revised 30 plan. Even assuming the petitioners were not aware of email and letter, it is a point to consider that petitioners registered a Sale cum GPA mentioning about the revised plan sought by the developer to which APCRDA issued a revised permit bearing No. 1168/3173/8/TDPLE/KNE/2017 dated 08-01-2019. It is submitted that the petitioner was acted upon the said revised plan and suppressing the same the present Writ petition is filed.
43. Learned counsel for the 2nd respondent placed reliance on the impugned order dated 14-08-2021 by the Metropolitan Commissioner referring to authority remarks, where the plan approval by the committee and also compliance of sec 14 (2) of RERA Act as among 32 allottees, 27 allottees already filed consents along with notarized affidavit in DPMS file. It is further contended that a dispute raised by private parties cannot be adjudicated by RERA.
44. It is contended that the 2nd respondent sanctioned said building permission pursuant to building application made by the 4th respondent. Upon subsequent submission of revised building plan and in pursuant to that, after finding by the building committee that the multi storied building is in consonance with Building rules confirmed revised plan vide BP Order no. 1168/3173/8/TDPLE/KNE/2017 dt.8.1.2019. As per DPMS endorsement dt.25.05.2019, the 4th respondent submitted 31 notarized affidavit of stamp dt.24.02.2021 stating that 36 flats were allotted and submitted consent forms from 2/3rds of the allottees (26 members) as per Section 14(2) of AP RERA Act, 2016. Hence, the 2nd respondent acted in good faith on the list of allottees submitted by the 4th respondent as required under the RERA Act, 2016.
45. Learned counsel for the 4th respondent argued that APMURDA has issued Stop Work Order vide letter
No.SWO/1168/2017/1747 dated 12-08-2021 on the reason that the 4th respondent obtained building permissions through Online DPMS by suppressing certain facts, given 14 shortfalls. In each Item, only the word 'shortfall' is mentioned without the description of such 'shortfall' and with regard to Item No.13, NALA Conversion Certificate was already submitted. Pursuant to the request made by the 4th respondent for issuance of Occupancy certificate, after completion of the entire construction, 2nd respondent authority already inspected the project on two occasions and found no shortfalls. The said letter dated 12- 08-2021 is issued solely basing on the letter addressed by the CID and such order has been passed without issuing any notice to the 4th respondent/Developer.
46. It is further submitted that the 4th respondent has filed a Writ Petition No. 18369 of 2021 before this Court seeking a direction to the respondents to issue Occupancy Certificate with 32 respect to the said multi-storied residential apartments and the Honourble Court has disposed of granting 15 days time for AMRDA/CRDA to pass appropriate order. In pursuant to that the authority has considered and passed an order that revised plan is being scrutinized under AP MR&UDA Act-2016 provisions, G.O.Ms.119 MA&UD dt.28.03.20177 and RERA Act 2016 , and at present the proposal is under shortfall.
47. Learned counsel further submitted that though the petitioners relied on the judgment in C.Sekhar Reddy Vs. CSR Estate Flat Owners' welfare Associate's case, said judgment has no application in the present case on hand.
48. Learned counsel for the 2nd respondent contended that the writ petition is pre mature one, unless shortfalls are rectified, occupancy cannot be permitted and submitted that it is for the 3rd respondent to consider the compliance.
49. Learned counsel for the 3rd respondent submitted that as per Section 31 of RERA Act, any person defined under section 2(z)(g) can approach the authority with the grievance and submitted that an enquiry cannot be conducted without any complaint.
50. In reply the above contentions, learned counsel for the petitioners submitted that the registration made in favour of third parties does not constitute admission and the 4th respondent not 33 stated in their affidavit, regarding the signature of 2/3rd of allottess, except harping on clause 6.
51. He further submitted that the Developer is absolutely entitled and empowered to obtain modifications, add and/or deletions in the contents of the permit and, sanctioned plan already granted and to make such modifications, additions, deletions etc., in the sanctioned plan as may be required by the Developer or directed/permitted by the Authorities concerned or due to any technical exigencies without consent of the Landowners herein; however, such modifications or changes or deletions or deletion of blocks or reduction in the constructed areas. In the existing permit shall not In any way reduce the built-up area in the shape of residential flats and Parking areas allotted towards the share of the landowners -under this Agreement since the same is final in all respects. Yet, in the event if upon such revision, any additional area is constructed as per such revised plans over and above the allotments made under this Agreement to the land owners and the Developer, the parties herein are entitled to share such additional areas and proportionate parking areas as per their entitled shares in terms of the Development Agreement.
52. Learned counsel for the petitioners placed reliance on Clause 24 of the agreement, which says that agreement may not be amended except by an agreement in writing signed by both the 34 parties herein and such agreement shall be read as part and parcel of this Agreement and contended that it has not been complied.
53. In view of the above contentions raised by all the counsel and also on perusal of the material placed along with the Writ Petition as well as the counters, no doubt the impugned order was passed by the 2nd respondent after considering with all the aspects, including complying Section 14(2) of the RERA Act, 2016. Considering the same, this Court not inclined to go into the merits of the case to decide sitting like an appellate authority. At any rate, as contended by the learned counsel for the petitioners, the petitioners are also entitled for the remedy granted by this court in W.P.No.6983 of 2021 and as submitted by the learned Standing Counsel for the 3rd respondent, liberty is given to the petitioners to make application before the 3rd respondent, upon which, the 3rd respondent shall consider the same and take appropriate decision as per the records.
54. Accordingly, this Writ Petition is dismissed. No costs.
As a sequel, miscellaneous applications pending, if any, shall also stand closed.
______________________ JUSTICE D. RAMESH Date: 29.09.2022 Pnr 35 THE HONOURABLE SRI JUSTICE D.RAMESH WRIT PETITION No.30832 OF 2021 Date:.............................
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