Yarlagadda Ravi Kiran vs The State Of Andhra Pradesh
2022 Latest Caselaw 7479 AP

          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.

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:

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.

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

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

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

(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."

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,

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

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

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

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

2003 (3) ALD 553

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,

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.

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

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.

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

(2010) 2 SCC 114

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

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

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

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

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

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 /

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

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

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,

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

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

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

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

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

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

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

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

THE HONOURABLE SRI JUSTICE D.RAMESH

WRIT PETITION No.30832 OF 2021

Date:.............................

Pnr