Karnataka High Court
M/S Ozone Urbana Infra Developers Pvt ... vs Karnataka Real Estate Regulatory ... on 8 February, 2024
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
Reserved on : 01.02.2024
Pronounced on : 08.02.2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF FEBRUARY, 2024 R
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.26194 OF 2023 (GM-RES)
BETWEEN:
M/S. OZONE URBANA INFRA
DEVELOPERS PVT. LTD.,
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT: NO.38
ULSOOR ROAD, BENGALURU - 560 042
REP. BY ITS AUTHORISED SIGNATORY/
MR. MAHESH GOWDA C. S.,
... PETITIONER
(BY SRI. V.SANJAY KRISHNA, ADVOCATE)
AND:
1. THE KARNATAKA REAL ESTATE
REGULATORY AUTHORITY
HAVING OFFICE AT: 2ND FLOOR
SILVER JUBILEE BLOCK
UNITY BUILDING, CSI COMPOUND
3RD CROSS, MISSION ROAD
BENGALURU - 560 027
REPRESENTED BY ITS SECRETARY
2
2. SERENE URBANA APARTMENT OWNERS
WELFARE ASSOCIATION (REGD.)
(OZONE URBANA CAMPUS)
REGISTERED UNDER THE KARNATAKA
SOCIETIES REGISTRATION ACT, 1960
KANNAMANGALA VILLAGE
KASABA HOBLI, DEVANAHALLI TALUK
BENGALURU RURAL, BENGALURU - 562 110
REPRESENTED BY ITS SECRETARY
MR. R.KRISHNASWAMY
(R/O APT B1-604 SERENE URBANA)
3. M/S. COVAI PROPERTY CENTRE (INDIA) PVT. LTD.,
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT:
COVAI CARE TOWER, 3RD FLOOR
GEM NIRMAALAYAM, V.G.RAO NAGAR
GANAPATHY, COIMBATORE - 641 000
REP. BY ITS MANAGING DIRECTOR.
4. M/S. COVAI SENIOR CARE
CONSTRUCTIONS PVT. LTD.,
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT:
COVAI CARE TOWER, 3RD FLOOR
GEM NIRMAALAYAM, V.G.RAO NAGAR
GANAPATHY, COIMBATORE - 641 000
REP. BY ITS MANAGING DIRECTOR
5. M/S. SERENE SENIOR LIVING PVT. LTD.,
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956
485, PANTHEON ROAD, PANTHEON PLACE
EGMORE, CHENNAI - 600 008
REP. BY ITS MANAGING DIRECTOR
3
6. M/S. COLUMBIA PACIFIC
COMMUNICATIONS PVT. LTD.,
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956
2999, 12TH MAIN ROAD
HAL 2ND STAGE, INDRANAGAR
BENGALURU - 560 008
REP. BY ITS MANAGING DIRECTOR.
... RESPONDENTS
(BY SRI. GIRISH K. V., ADVOCATE FOR R1;
SRI. G.SURIYA NARAYANAN, ADVOCATE FOR C/R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER PASSED BY R1 DATED 05/07/2023 REJECTING
THE INTERLOCUTORY APPLICATION FILED BY THE PETITIONER IN
COMPLAINT NO. CMP/UR/211027/0008475/2021 ANNEXURE-A.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 01.02.2024, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner-M/s Ozone Urbana Infra Developers Private
Limited, is knocking at the doors of this Court calling in question an
order dated 05-07-2023 passed by the Karnataka Real Estate
Regulatory Authority ('the Authority' for short) rejecting an
interlocutory application filed by it in a complaint registered by
respondent No.2. The Authority holds that the complaint is
maintainable before it.
2. Heard Sri V.Sanjay Krishna, learned counsel appearing for
the petitioner, Sri K.V. Girish, learned counsel appearing for
respondent No.1 and Sri G.Suriya Narayanan, learned counsel
appearing for respondent No.2.
3. The facts adumbrated, are as follows:-
The petitioner claims to be a company registered under the
Companies Act, 2013 and is a promoter of several real estate
projects. Likewise the petitioner promotes a project in the name
and style of 'Serene Urbana' exclusively developed for retirement
community over lands bearing Sy.Nos. 126, 127, 16/1 and 153 of
Kannamangala and Poojanahalli Villages, Kasaba Hobli, Devanahalli
Taluk, Bangalore Rural District. The extent of land on which the
development of retirement community is to be carried out is
averred to be measuring 6.05 acres in blocks I to V consisting of
318 apartments and in block No.6, 32 apartments. It is claimed
that all approvals were taken by the petitioner from the
jurisdictional Planning Authority for a composite development of the
total extent of 6.05 acres.
4. The petitioner, in order to develop and maintain the project
as a retirement community, enters into an agreement with the 4th
respondent who agrees to develop the project on the aforesaid land
after obtaining necessary sanctions and approvals from the
competent authority and to provide all the amenities required to
run and operate the project as a retirement community. The
project was termed to be a group housing apartment project and
proposed to be constructed and sold by the petitioner in favour of
intending purchasers of apartments. The development plan for the
project was obtained from the competent authority on 29-04-2013
to construct the aforesaid residential apartment complex with all
necessary amenities and a revised plan was also submitted on
09-07-2015. The project had to get completed in the month of
April, 2017. It is claimed that when the project was nearing
completion, the petitioner applies for grant of occupancy certificate
before the jurisdictional authority which according to the petitioner
was Kannamangala Gram Panchayat on 27-04-2017. The
occupancy certificate was based upon the completion certificate
issued by the project architect. Based upon the aforesaid
application, the Panchayat resolves to issue occupancy certificate
on 16-05-2017 which ultimately was issued on 16-08-2017.
5. During the aforesaid proceedings, the petitioner had
executed sale deeds in favour of allottees in the project
commencing from June, 2016 for 318 apartments in the project.
Sale deeds in respect of 241 apartments were executed and
registered. Project does not get complete. It is then, the 2nd
respondent Serene Urbana Apartment Owners' Welfare Association
('the Association' for short) knocks at the doors of the Authority by
registering a complaint seeking to declare the project 'Serene
Urbana' as an on-going project and claimed several reliefs inter
alia. The petitioner during the pendency of those proceedings
before the Authority files an application on 09-02-2013 invoking
Sections 35 and 36 of the Real Estate (Regulation and
Development) Act, 2016 (hereinafter referred to as 'the Act' for
short) seeking rejection of the complaint on the ground that the
project is not registerable as it stands excluded under the Rules
framed under the Act particularly with reference to Rule 4.
Therefore, it was the case of the petitioner that it need not register
itself before the Authority. This application is contested to by the
2nd respondent, which results in passing of the impugned order
rejecting the application filed by the petitioner by holding the
complaint to be maintainable and declaring the project of the
petitioner as an 'on-going project'. It is this order that has driven
the petitioner to this Court in the subject petition.
6. The learned counsel appearing for the petitioner,
Sri. V. Sanjay Krishna would take this Court through the provisions
of the Act and the Rules, to contend that under Rule 4 of the Rules
the petitioner is exempted from registering before the Authority as
it was not an on-going project as on the date the Rules came into
force, it was a project where completion certificate was submitted
and occupancy certificate was issued by the competent authority.
He would further contend that entertainment of the complaint by
the Authority was without jurisdiction. If it is without jurisdiction,
any order that is passed is a nullity in law. He would seek to place
reliance on the judgment of this Court in M/s PROVIDENT
HOUSING LIMITED v. KARNATAKA REAL ESTATE
REGULATORY AUTHORITY AND ANOTHER1, to buttress his
submission. It is his submission that the judgment in the aforesaid
writ petition covers the issue on all its fours.
7. Per contra, the learned counsel representing the 2nd
respondent/Association would vehemently refute the submissions.
It is his contention that the petition suffers from suppression of
material facts. It is the case of the petitioner that it has secured an
occupancy certificate after submitting completion certificate.
Neither the completion certificate nor occupancy certificate is placed
on record by the petitioner. It is his submission that he has placed
all the documents on record which would clearly demonstrate the
fraud played by the petitioner in getting away from the rigours of
Act. It is an on-going project even to-day as the project is not
complete and the occupancy certificate is secured on bogus
documents. He would submit that the project is meant for senior
citizens, projected as retirement home, and these old people are
ILR 2023 KAR 777
made to suffer due to the acts of the petitioner. He would seek
dismissal of the petition.
8. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
9. The afore-narrated facts are not in dispute. For a complete
resolution, a few dates would require reiteration. The project that is
sought to be developed is not in dispute. It was to be a retirement
home projected for retirement community/senior citizens to ensure
harmonious living in the community is a matter of record. It is this
projection that lured the retired home buyers. The development
plan for the project was sanctioned by the Planning Authority on
29-04-2013, to construct a residential apartment complex with
basic amenities for old age people. The plan was later modified on
09-07-2015. It is then the sale deeds are executed for 241
apartments in an apartment complex of 318 apartments. It is
claimed that after the sale deeds are executed, the petitioner
approaches the competent authority - the Kannamangala Gram
Panchayat with a completion certificate and secures an occupancy
certificate dated 16-05-2017 and on 16-08-2017.
10. To consider the issue projected, it becomes germane to
notice certain provisions of the Real Estate (Regulation and
Development) Act, 2016 ('Act' for short) and the Karnataka Real
Estate (Regulation and Development) Rules, 2017 ('Rules' for
short).
The Real Estate (Regulation and Development) Act, 2016:
Section 2 of the Act deals with definitions. Section 2(m), (n),
(q), (t), (zb) and (zf) of the Act run as follows:
"2(m) "Commencement certificate" means the
commencement certificate or the building
permit or the construction permit, by whatever
name called issued by the competent authority
to allow or permit the promoter to begin
development works on an immovable property,
as per the sanctioned plan;
(n) "common areas" mean--
(i) the entire land for the real estate project or
where the project is developed in phases and
registration under this Act is sought for a phase,
the entire land for that phase;
(ii) the staircases, lifts, staircase and lift lobbies,
fire escapes, and common entrances and exits
of buildings;
(iii) the common basements, terraces, parks, play
areas, open parking areas and common storage
spaces;
(iv) the premises for the lodging of persons
employed for the management of the property
including accommodation for watch and ward
staffs or for the lodging of community service
personnel;
(v) installations of central services such as
electricity, gas, water and sanitation, air-
conditioning and incinerating, system for water
conservation and renewable energy;
(vi) the water tanks, sumps, motors, fans,
compressors, ducts and all apparatus connected
with installations for common use;
(vii) all community and commercial facilities as
provided in the real estate project;
(viii) all other portion of the project necessary or
convenient for its maintenance, safety, etc., and
in common use;
.... .... ....
(q) "Completion certificate" means the completion
certificate, or such other certificate, by whatever name
called, issued by the competent authority certifying that
the real estate project has been developed according to
the sanctioned plan, layout plan and specifications, as
approved by the competent authority under the local
laws;
.... .... ....
(t) "development works" means the external development works
and internal development works on immovable property;
.... .... ....
(zb) "Internal development works" means roads, footpaths,
water supply, sewers, drains, parks, tree planting, street
lighting, provision for community buildings and for treatment
and disposal of sewage and sullage water, solid waste
management and disposal, water conservation, energy
management, fire protection and fire safety requirements,
social infrastructure such as education health and other public
amenities or any other work in a project for its benefit, as per
sanctioned plans;
.... .... ....
(zf) "Occupancy certificate" means the occupancy
certificate, or such other certificate, by whatever
name called, issued by the competent authority
permitting occupation of any building, as provided
under local laws, which has provision for civic
infrastructure such as water, sanitation and
electricity;"
(Emphasis supplied)
Section 2(m) defines what is a Commencement certificate. It
is the one that permits construction of a building or to begin
development works on an immovable property as per the
sanctioned plan.
Section 2(n) defines Common areas.
Section 2(q) defines what is a Completion certificate. The
Completion certificate would mean the one issued by the competent
authority certifying that the real estate project has been developed
according to the sanctioned plan, layout plan and specifications, as
approved by the competent authority.
Section 2(t) defines Development works, to mean external
development works and internal development works on the said
property.
Section (zb) defines internal development works. They are
manifold.
Section (zf) defines Occupancy certificate. Occupancy
certificate would mean, a certificate issued by the competent
authority permitting occupation of any building, as provided under
locals laws which would necessarily contain civic infrastructure such
as water, sanitation and electricity.
Two of the provisions quoted supra forms the fulcrum of the
present lis. One being, the completion certificate. The completion
certificate, as observed, mandates that the real estate project has
been developed according to the sanctioned plan, layout plan and
specifications. Occupancy certificate mandates that a building
should be complete with infrastructure such as water, sanitation
and electricity.
The Karnataka Real Estate (Regulation and Development)
Rules, 2017:
11. The Government of Karnataka in exercise of powers
conferred under Section 84 of the Act promulgates the Rules. The
Rules come into effect on 10-07-2017. Rules 3 and 4 are germane
to be noticed and they read as follows:
"3. Information and documents to be furnished by
the promoter for registration of project.-- (1) The
promoter shall furnish the following additional information and
documents, along with those specified in sub-section (2) of
Section 4 of the Act for registration of the real estate project
with the regulatory authority namely:--
(a) self attested copy of the PAN card of the promoter;
(b) annual report including audited profit and loss account,
balance sheet, cash flow statement, directors report and
the auditors report of the promoter for the immediately
preceding three financial years; and where annual
report is not available, the audited profit and loss
account, balance sheet, cash flow statement and the
auditor report of the promoter for the immediately
preceding three financial years;
(c) the number of parking slots available in the said real
estate project;
(d) authenticated copy of the legal title deed reflecting the
title of the promoter to the land on which development
of project is proposed along with legally valid
documents for chain of the title;
(e) the details of encumbrances on the land for which
permission given under Section 109 of the Karnataka
Land Reforms Act, 1961 if applicable, the Certified copy
of the conversion order under Section 95 of the
Karnataka Land Revenue Act, 1964 and permission of
change in land use granted under Section 14 of the
Karnataka Town and Country Planning Act, 1961, if
applicable on which development is proposed including
any rights, title, interest or name of any party in or over
such land along with details;
(f) where the promoter is not the owner of the land on
which development is proposed details of the consent of
the owner of the land along with self attested the
collaboration agreement, development agreement, joint
development agreement or any other agreement, as the
case may be, entered into between the promoter and
such owner and copies of title and other documents
reflecting the title of such owner on the land proposed
to be developed; and
(g) name, photograph, contact details and address of the
promoter if it is an individual and the name,
photograph, contact details and address of the
chairman, partners, directors, as the case may be, and
the authorised person in case of other entities.
(2) An application to the Authority for registration of the
real estate project shall be made in writing in Form 'A', in
triplicate, until the procedure is made web based for filing of
such application.
(3) The promoter shall pay a registration fee at the time
of application for registration by way of a demand draft or a
bankers cheque drawn on any scheduled bank or a Co-
operative Bank or through online payment mode, as the case
may be, for a sum calculated at the rate of,--
(a) in case of group housing project,-five rupees per square
meter for projects where the area of land proposed to
be developed does not exceed one thousand square
meters; or rupees ten per square meter for projects
where the area of land proposed to be developed
exceeds one thousand square meters, but shall not be
more than five lakhs rupees;
(b) in case of mixed development (residential and
commercial) project,-ten rupees per square meter for
projects where the area of land proposed to be
developed does not exceed one thousand square
meters; or fifteen rupees per square meter for projects
where the area of land proposed to be developed
exceeds one thousand square meters, but shall not be
more than seven lakhs rupees;
(c) in case of commercial projects,-twenty rupees per
square meter for projects where the area of land
proposed to be developed does not exceed one
thousand square meters; or twenty five rupees per
square meter for projects where the area of land
proposed to be developed exceeds one thousand square
meters, but shall not be more than ten lakhs rupees;
and
(d) in case of plotted development projects,-five rupees per
square meter, but shall not be more than two lakhs
rupees.
(4) The declaration to be submitted under clause (l) of
sub-section (2) of Section 4, shall be in Form-B, which shall
include a declaration stating that the promoter shall not
discriminate against any allottee at the time of allotment of
any apartment, plot or a building, as the case may be.
(5) In case the promoter applies for withdrawal of
application for registration of the project before the expiry of
the period of thirty days specified under sub-section (1) of
Section 5, registration fee to the extent of ten percent paid
under sub-rule (3), or rupees fifty thousand whichever is
more, shall be retained as processing fee by the regulatory
authority and the remaining amount shall be refunded to the
promoter within thirty days from the date of such withdrawal.
4. Additional disclosure by promoters of ongoing
projects.-- (1) Upon the notification for commencement
of sub-section (1) of Section 3, promoters of all ongoing
projects which have not received completion certificate
shall, within the time specified in the said sub-section,
make an application to the Regulatory Authority in the
form and manner as specified in Rule 3.
Explanation: For the purpose of this rule "Ongoing
project" means a project where development is
going on and for which completion certificate has
not been issued but excludes such projects which
fulfill any of the following criteria on the date of
notification of these rules, namely:--
(i) in respect of layouts where the streets
and civic amenities sites and other
services have been handed over to the
Local Authority and Planning Authority
for maintenance;
(ii)
(ii) in respect of apartments where common
areas and facilities have been handed over
to the registered Association consisting of
majority of allottees;
(iii) where all development works have been
completed as per the Act and certified by the
competent agency and sale/lease deeds of
sixty percent of the apartments/houses/
plots have been registered and executed;
(iv) where all development works have been
completed as per the Act and certified by the
competent agency and application has been
filed with the competent authority for issue
of completion certificate/occupation
certificate; and
(v) where Partial occupancy certificate is
obtained to the extent of the portion for
which the partial occupancy certificate is
obtained.
(2) The promoter shall in addition to disclosures
provided in Rule 3 disclose the following information,
namely:--
(a) the original sanctioned plan, layout plan and
specifications and the subsequent modifications
carried out, if any, including the existing
sanctioned plan, layout plan and specifications;
Explanation:--For the purpose of clause (ii) of
sub-section (2) of Section 14 of the Act, the Prior
written consent of at least two third of the
allottees would not be required if,--
(i) implementation of the proposed plan has
already been disclosed to the allottees under
the agreement prior to registration, or
(ii) modification is required to be made in
compliance of any order or direction issued
by competent authority or statutory
authority, under the agreement for sale, the
promoter is not required to obtain the
consent of allottee in case of any alteration
or addition to the apartment required by
Government authorities or due to change in
any law.
(b) the total amount of money collected from the
allottees and the total amount of money used for
development of the project including the total
amount of balance money lying with the promoter;
and
(c) status of the project (extent of development
carried out till date and the extent of development
pending) including the original time period
disclosed to the allottee for completion of the
project at the time of sale including the delay and
the time period within which he undertakes to
complete the pending project, which shall be
commensurate with the extent of development
already completed, and this information shall be
certified by an engineer, an architect and a
chartered accountant in practice.
(3) The promoter shall disclose the size of the
apartment based on carpet area even if earlier sold on
any other basis such as super area, super built up area,
built up area etc. which shall not affect the validity of
the agreement entered into between the promoter and
the allottee to that extent.
(4) In case of plotted development, the promoter shall
disclose the area of the plot being sold to the allottees as per
the layout plan.
(5) For projects that are ongoing and have not received
completion certificate on the date of commencement of the
Act, the promoter shall, within a period of three months of the
application for registration of the project with the Authority,
deposit in the separate bank account, seventy per cent, of the
amounts already realized from the allottees, which have not
been utilized for construction of the project or the land cost for
the project as required under sub-clause (D) of clause (l) of
sub-section (2) of Section 4, which shall be used for the
purposes specified therein:
Provided that if the receivable of the ongoing project is
less than the estimated cost of balance construction, then the
promoter shall deposit 100 per cent of the amounts to be
realised in the separate account."
(Emphasis supplied)
Rule 3 mandates information and documents to be furnished by the
promoter for registration of a project under the Act. Rule 4
mandates additional disclosure by promoters of ongoing projects.
The said Rule mandates that upon the notification for
commencement under sub-section (1) of Section 3 of the Act,
promoters of all ongoing projects which have not received
completion certificate shall, within the time specified in the said
sub-section, make an application to the Regulatory Authority. The
rule places an explanation as to what is an ongoing project. An
ongoing project would mean where a development of a project is
going on for which completion certificate has not been issued but
excluded those projects which fulfill the criteria enumerated therein
which are lay-outs where the streets and civic amenities and other
services have been handed over to the Local Authority. It is in the
aforesaid statutory frame work, the issue in the lis is to be
considered.
12. The dates are undisputed. After execution of sale deeds
as aforeaid, the petitioner approaches the competent authority -
Kannamangala Gram Panchayat to secure occupancy certificate, for
which submission of completion certificate is imperative. The
certificate that was placed before the Gram Panchayat requires to
be noticed. It reads as follows:
"ನಮೂ ೆ - V
ಖಂಡ
(12 ೇ ಖಂ ಡ ೋ )
ಪ ಣ ೊಂಡ ಬ ೆ ಪ ಾಣ ಪvÀæ
ಾನು ________ ಾ ಮದ ________ ೕ ಯ ೕ/ ೕಮ ________ ಇವ# ೆ $ೇ#ದ ________ ಸಂ&ೆ'ಯ
()ೇಶನದ ನ ಕಟ-ಡವನು. /ೕ 01ಾರ3ೆ ಾಡ4ಾ5, ಕಟ-ಡವ6 ಅ8ವೃ : ಹಂತದ =ೆ / ( ಾ ಣ ೊಂ =ೆ /
ಮರು ( ಾ ಣ ೊಂ =ೆ ಅಥ)ಾ ಾ?ಾ ಟು ಾಡ4ಾ5=ೆ ಎಂದು ಮತುA _______ ಸಂ&ೆ'ಯ ________
ಾಂಕದಂದು ಮಂಜೂCಾದ ನDೆಯನು. ೋಡ4ಾ5 ಅದEೆF ಅನು$ಾರ)ಾ5 ಕಟ-ಡವ6 ________ ರಂದು
ಪ ಣ ೊಂ ರುವ6ದನು. ಾನು ಈ ಮೂಲಕ ಪ ಾIೕಕ#ಸುJೆAೕ ೆ.
Eಾಮ ಾ#ಯು ನನ. ಪ Eಾರ ತೃKAಕರ)ಾ5 ಪ ಣ ೊಂ =ೆ. Eಾಯ Eೌಶಲ' ಮತುA $ಾ ಾನ' ಮತುA ( ಷ-
ಪ Nದ OವರಗQ ೆ ಅನು$ಾರ)ಾ5 ಎಲ ಸರಕು $ಾಮ5 ಗಳನು. (ಬ ೆ ಮತುA ದSೆ ) (ಖರ)ಾ5Tೕ ಬಳEೆ
ಾಡ4ಾ5=ೆ.
________ ಾಂಕ ________ ನಮೂ ೆಯ ಒಪVಂದದ ೊತುAಪ Nದ ಎಲ ಷರತುAಗಳನು.
?ಾ ಸ4ಾ5=ೆ.
ಈ ಕಟ-ಡವನು. Wಾವ ಉ=ೆYೕಶEಾF5 (Z ಸ4ಾ5=ೆ / ಪ6ನ[ (Z ಸ4ಾ5=ೆ / ಾ?ಾ ಟು ೊQಸ4ಾ5=ೆ,
\ೆ]^ ೆ ಕಟು-ವ ಮೂಲಕ OಸA#ಸ4ಾ5=ೆ_ೕ ಆ ಉ=ೆYೕಶEೆF ಬಳಸಲು ಸೂಕA)ಾ5=ೆ"
¸À»/- ªÀiÁ°ÃPÀ£À ºÉ¸ÀgÀÄ ªÀÄvÀÄÛ ¸À»
(PÀbÉÃjAiÀÄ ªÉƺÀj£ÉÆA¢UÉ ªÉÄðéZÁgÀPÀ£À ¸À»
¢£ÁAPÀ: 13.04.2017."
(Emphasis added)
The completion certificate is submitted by the project architect.
Completion certificate under the Act would mean that the real
estate project has been developed according to the sanctioned
layout, layout plan and specifications as approved by the competent
authority. None of those indications are found in the completion
certificate placed before the Panchayath. It is dated 13-04-2017.
All the information necessary to be filled in, remain blank. The
owner's name and his signature is blank. But, the Gram Panchayat
accepts it and affixes the signature. It is rather shocking as to how
the Gram Panchayat could affix the signature, of receipt of
completion certificate, which is completely blank. The certificate
reads that it is '¥ÀÆtðUÉÆAqÀ §UÉÎ ¥ÀæªÀiÁt¥ÀvÀæ'. Therefore, the petitioner is
projecting the apartment complex as complete. Neither the
apartment complex was complete, nor a complete completion
certificate, was placed before the Gram Panchayat. The request of
the petitioner for issue of occupancy certificate reads as follows:
"To: Date:27.04.2017
THE PANCHAYAT DEVELOPMENT OFFICER,
Kannamangala Village Panchayat,
Kannamangala Village,
Kasaba Hobli, Devanahalli Taluk,
Bangalore Rural District.
Dear Sir,
Sub: Requesting to issue occupancy certificate for
Serene Residential apartment on Sy.No.126, 127, 153
of Kannamangala Village and Sy.No.16/1 of
Poojenahalli Village, Kasaba Hobli, Devanahalli Taluk,
Bangalore Rural District, for 360 units measuring
42337.78 sq.mtrs.
Ref: BIAAPA approved Building plan vide Commencement
Certificate по. BIAAPA/TP1/CC/33/2015-16/4798 dated
11.03.2016.
This is with reference to the above subject, we request
you to issue occupancy certificate for Serene Residential
apartment on Sy.No.126, 127, 153 of Kannamangala Village
and Sy.No.16/1 of Poojenahalli Village, Kasaba Hobli,
Devanahalli Taluk, Bangalore Rural District, for 360 units
measuring 42337.78 sq.mtrs.,
Please find we are herewith enclosed following
documents:
1. Sale deed register Doc. No.367/16-17 dated
31.03.2016 for Sy.No.126, 127.
2. Sale Deed register Doc. No.9501/06-07 dated
16.03.2007 for Sy.No.153, 16/1.
3.Conversion order vide no. ALN(D)SR/105/2012-
13 dated 19.12.2012
4. Panchayath Khata no.6
5. Tax paid receipt
6. BIAAPA approved Modified Development Plan
dated 09.07.2015
7.BIAAPA approved Building plan vide
Commencement Certificate no.BIAAPA/
TP1/CC/33/2015-16/4798 dated 11.03.2016.
Kindly acknowledge the receipt of the same and issue
partly occupancy certificate at the earliest
Thanking you,
Yours faithfully,
for M/s. Ozone Urbana Infra Developers Pvt. Ltd."
(Emphasis added)
The afore-quoted is the representation submitted for securing an
occupancy certificate. The documents that are appended to the
representation would clearly indicate that it is akin to seeking a
commencement certificate, not the occupancy certificate, as the
occupancy certificate to be issued under the Section 2(zf) of the Act
supra would require complete infrastructure such as water,
sanitation and electricity to be in place. Neither the completion
certificate nor the representation seeking occupancy certificate even
whispers about water, sanitation or electricity in place. But on the
basis of the aforesaid representation, the Gram Panchayat issues an
occupancy certificate. The occupancy certificate reads as follows:
"PÀ£ÀߪÀÄAUÀ® UÁæªÀÄ ¥ÀAZÁ¬ÄÛ PÁAiÀiÁð®AiÀÄ
PÀ£ÀߪÀÄAUÀ®, zÉêÀ£ÀºÀ½î vÁ®ÆèPÀÄ, ¨ÉAUÀ¼ÀÆgÀÄ UÁæªÀiÁAvÀgÀ f¯Éè.
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fೆಂಗಳgರು.
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ಉ4ೇಖ: :16/05/2017gÀ ¸ÁªÀiÁ£Àå ¸À¨ÉsAiÀÄ ನಡವQಗಳi.
************
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ೕ ಾ (ಸ4ಾ5ರುತA=ೆ.
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ಪತ ದ ಸಂ&ೆ' ಾ ಅಪ788 ಾ ಪಂಅ2014, fೆಂಗಳgರು, :08/05/2015 ರಂJೆ ಕಟ-ಡ ನDೆಯನು.
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ದೃ ೕಕ#NರುJಾACೆ.
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ಇಲ=ೆ ಕಟ-ಡವನು. Wಾವ6=ೇ ಾ?ಾ ಟು ಾಡುವ6ದನು. (wೇuNದುY, $ಾ0uೕನ ಪ ಾಣ ಪತ ವನು. ಪdೆದ
ನಂತರ ಾ ೕಕರು ಕೂಡ4ೇ ತಮx \ೆಸ# ೆ ಎ4ಾ ಘಟಕಗಳ &ಾJೆಗಳನು. ಕಟ-ಡ Jೆ# ೆ ?ಾವ N
ೋಂ=ಾtN EೊಳqತಕF=ೆYಂದು ಷರತುA OuNರುJೆA.
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ಸ{/-
ಪಂ1ಾt ಅ8ªÀÈ¢Þ ಕನ.ಮಂಗಲ ಾ ನು ಪಂ1ಾt =ೇವನಹQq Jಾಲೂರು."
(Emphasis added)
A perusal at the occupancy certificate would indicate that the
Authorities have not even looked into the statute. There is no
indication about the works completed qua sanitation, electricity and
water. The apartment complex was not complete at all, when the
completion certificate was submitted and occupancy certificate was
granted. The occupancy certificate is resorted to be granted without
even inspecting the property, by the Kannamangala Gram
Panchayat. Therefore, the occupancy certificate granted runs
blatantly contrary to law.
13. On the project being dragged without rhyme and reason,
the Association of retired people i.e., the retired home buyers/senior
citizens knock at the doors of the Authority. The Authority issues
notice and directs a spot inspection to be conducted of the project to
get to know as to whether the project is actually complete as on
10-07-2017 or the completion certificate was a bogus document
submitted for getting an occupancy certificate. The report of the
said inspection is produced by the 2nd respondent. It reads as
follows;
"SPOT INSPECTION REPORT: SERENE URBANA
Date of inspection: 29.06.2022
Site inspection report of Residential Project "SERENE urbana" ozone
urbana campus, Kannamangala village, Kasaba Hobli, Devanahalli
taluk, Bengaluru Rural.
SL Descriptions Details
NO
1 Project Name "SERENE URBANA
2 Promoter Name M/S OZONE URBANA INFRA
DEVELOPERS PVT LTD
3 Project Address Ozone Urbana campus,
Kannnamangala village, Kasaba
Hobli, Devanahalli taluk, Bangalore
Rural.
4 Project Type Residential Development/ Group
housing.
5 Registration Number Un-registered Number
6 Complaint number CMP/8475
7 Plan Approved by BIAPPA vide no.
TP09/CC/33/2015-16 dated
11.03.2016 Bangalore
International Airport Area
Planning Authority.
Ref:Note from Hon'ble Chairman vide letter No:
gÉÃgÁ/PÀ/CzsÀåPÀëgÀÄ/C±Á/n10/2021-22 dated 10/06/2022.
As per the directions of the Hon'ble Chairman, the
above group housing project "SERENE URBANA was
inspected by Engineering Inspection Team (RERA), on
29.06.2022. The complainants and the office bearers of the
serene Urbana owners welfare association were present
along with their advocate. But the developer or
Representatives of the Developer were absent, inspite of
prior intimation through e-mail (attendance sheet enclosed).
The above group housing project SERENE URBANA consists
of 360 numbers of flats approved by BIAAPA in its
development plan vide no.BIAAPA/TP3/DP/03/2012-13 dated
9.07.2015 and sanctioned plan vide no.BIAAPA
/TP/09/CC/33/2015-16 dated 11.03.2016. This project is not
registered under K RERA. There are 3- buildings in this
project, Building 01-256 units, Building 02- 72 units &
Building 3-32 units, total-360 housing units including
"URBANA IRENE, URBANA SERENE" in stilt +Ground+7 upper
floors.
The following points were raised by the members of the
association "SERENE URBANA" apartment owners association
(SUAOWA) registered under Karnataka society's registration
act bearing Reg no.DBR/SOR/36/201819.
1. This housing project is maintained by an external agency
appointed by the developer without the consent of SUAOWA.
2. The project work is completed and the occupancy
certificate is issued by PDO, Kannamangala village
panchayat dated 16.08.2017.
3. Fire clearance for building-3 was obtained on
21.05.2019, which is after the Occupancy certificate
issued by Grama Panchayat dated on 16.08.2017.
4. BESCOM Permanent power supply is obtained by the
developer on 21.08.2018.
5. As per association and as per the Brochure
submitted, the organic converter plant has to be
installed as per the requirement of PCB, Air
conditioning of dining hall not done, shaded walkway,
Wellness centre, UPS Backup for each housing unit not
provided.
6. Amenities promised such as health club, steam room,
sauna room, Jacuzzi, Pharmacy, indoor badminton court,
crèche and ATM facilities are not provided.
7. Sewage treatment plant located in Serene Urbana campus
is connected to other blocks also.
8. The Exit road to the south as per sanctioned plan is
blocked as of now and the entry is restricted.
9. Lift clearance for this project from the electrical
inspectorate is obtained 14.01.2019 and for DG
installation clearance on 4.01.2019.
10. Water supply is done using only one bore well,
which is connected to water treatment plant and it is
in operation.
The project was inspected and found that the allottees are
already staying and facilities provided are in use, there was
nobody from the developer side to clarify regarding the
complaints.
This is for your kind information."
(Emphasis added)
The inspection is conducted on 29-06-2022, five years after
issuance of occupancy certificate on the completion certificate
submitted by the petitioner. The lacunae are fire clearance for the
building was obtained on 21-05-2019 without which occupancy
certificate could not have been granted. But, the Gram Panchayat
grants it on 16-08-2017 two years before fire clearance. BESCOM
power supply is obtained on 21-08-2018. The Gram Panchayat
grants occupancy certificate to an apartment complex which did not
have even the power. None of the amenities that were assured and
promised to lure the retired home buyers were in place. Sewage
treatment plant was yet to come up. Lifts were not provided as DG
installation clearances for the lift was issued on 04-01-2019. Water
supply was not complete. All these lacunae are found on the date of
inspection i.e., 29-06-2022, to be present, as on the date of
issuance of occupancy certificate.
14. Every trait that is necessary for grant of an occupancy
certificate, is secured by the petitioner long after issuance of
occupancy certificate. Therefore, it becomes surprising, as to how
the Gram Panchayat granted occupancy certificate without even
looking into the apartment complex. This is shrouded in mystery.
Since the project was not handed over, as observed hereinabove,
the 2nd respondent knocks at the doors of the Authority. The
Authority rejects the application filed by the petitioner that it was
not an on-going project, but stood completed and directs the
petitioner to register itself under RERA. The order passed by the
Authority reads as follows:
"ORDER
(a) The Interlocutory Application dated 9-02-2023 filed by
the respondent No.1 promoter is hereby rejected.
(b) This complaint is maintainable.
(c) The "Serene Urbana Project" is declared as an
"on-going project". The respondent No.1
promoter, M/s Ozone Urbana Infra Developers
Pvt.Ltd., respondent No.3, M/s Covai Senior Care
Constructions Pvt. Ltd., and respondent No.4 M/s
Serene Senior Living Pvt.Ltd. are hereby directed
to register the "Serene Urbana Project" under
RERA immediately as per Section 3 of the Real
Estate (Regulation and Development) Act within
two weeks from the date of receipt of this order."
(Emphasis added)
The Authority directs registration of the petitioner before it within 2
weeks from the date of the order. If regard is had to what is
observed hereinabove, it cannot be said that 'Serene Urbana' a
retirement home was a project that was complete on the strength of
completion certificate which does not inspire even a semblance of
confidence. Therefore, no fault can be found with the order passed
by the Authority directing registration of the project as an 'on-going
project'. There cannot be a cavil of doubt that the project was, as
on 10-07-2017, the date on which the Rules came into force was
still an 'on-going project' as neither the completion certificate nor
the occupancy certificate were issued in accordance with law, the
project was yet to get completed, on the date on which the
occupancy certificate was issued. The judgment in the case of M/S.
PROVIDENT HOUSING (supra) is distinguishable on the facts
obtaining in the case at hand, without much ado. The facts are
entirely different, the project was complete in the said case, while it
is not in the case at hand.
15. The respondents, in order to vindicate their stand that it
was an ongoing project, has placed several communications in the
form of assurances by the petitioner to the home buyers. It is
germane to notice what are the assurances meted out to the
petitioner home buyers/retirement home buyers. As an illustration
three of the assurances meted out are quoted for the purpose of
quick reference and they read as under:
"Mr. Ramswamy Ramachandran
3A, Ascot Apartments, 191
4th Cross, Defence Colony, 6th Main
Indira Nagar, Bangalore - 560038
(M): 9902040973
Sub: Allotment of (a Retirement Apartment Unit
in Project Urbana Irene.
Dear Sir,
We thank you for investing in Residential Unit No.304, 3
BHK in Block C in Urbana Irene Retirement Community, NH-
7, Kannamangala Village, Kasaba Hobl, Devanahalli Taluk-
562 110. On the basis of the information provided by you
and also on the assurances regarding prompt payments of
various installments payable by you as per the schedule
payments indicated to you at the time of booking and with
the understanding that you will enter into suitable
documentation as provided or advised by us, we hereby allot
you the Unit No.304 mentioned below:
The details of the Retirement Residential Unit allotted to you
are as follows:
Block : Block C
Unit Type : 3 BHK
Floor : 3
Saleable Area : 1461 Sq ft
Car Park : 1
Basic Cost : Rs. 68,52,090/-
Note: *Basic cost mentioned above indicates only Land
& Construction Cost. All statutory taxes and levies,
Senior Care Specifications, Deposits etc will be
additional and as per the terms of the cost sheet
agreed and signed by you.
Please note that this allotment letter by itself does not create
any independent right, possessory or otherwise in the above
residential unit execution.
10 On Completion 320,204 24,415 344,619
of External
Plastering
11 Balance on 281,974 26,602 308,576
Possession
Total 5,006,571 438,027 5,444,598
• Computed based on the present prevailing
taxes/statute, any prospective changes shall be
applicable and binding.
ANNEXURE-III
Delivery Schedule
The delivery of the Residential Unit will be handed
over by 31st March 2018 with a grace period of an
additional Six (06) months.
IN WITNESS WHEREOF, the parties have hereunto set their
respective hands the day, month and year first herein above
written."
-o-
"Re: Urbana Irene - C Block - Handing Over:
On Wed, 26 Dec 2018 at 10:11, Megha
<[email protected]> wrote:
Dear Sir/Ma'am,
Vanakkam.
We are happy to inform you that C Block of Urbana Irene is
ready for possession. The work on Senior Care Centre to
provide services and care is in full swing.
We request you to take over your apartment so that the
interior work can commence. Many have since got it done.
Please give us 72 hour notice before you visit the site. Kindly
complete this process by 15th Jan 2019 unless due to
compelling reasons that you are unable to visit. In that case,
please tell us your probable date of visit.
We are also in the process of finalising the sale deed for
registration. The registration will commence after 15th Jan
2019. The Senior Care Centre will be operational by 31st
Jan'19. Lifts will not be functional before Mar 2019, however
we can provide services by end Jan 2019 for residents in C
Block. Please plan your move accordingly.
We look forward to hearing from you soon.
Kind regards,
Unnimegha K B
Manager CRM
Customer Relations"
"Dear Sir/Madam,
Greetings from Serene.
We are pleased to announce that your apartment is
ready for handover for interiors/wood work starting
10th August 2017. You may collect the keys from the
site from Ozone representative Ms. Nalina / Mr.
Saravana Kumar (Contact No.: +91 99800 33658).
Do let us know your convenient date for taking the handover
so we can make necessary arrangements at the site and
assist you with a guided tour of your apartment.
At the time of handover you may observe some snags in
your apartment, we request you to bring the same to the
attention of the site engineer and Serene representative Mr.
Honestraj (Contact No.: +91 99015 38692) or Ozone
representative Ms. Nalina / Mr. Saravana Kumar (Contact
No.: +91 99800 33658). In case of such snags reported we
assure to complete the same before the completion of your
interior/woodworks and final handover.
Thanks & Regards,"
(Emphasis added)
The afore-quoted communications would clearly indicate that
Everytime illusory assurances are handed over to the senior citizens.
16. It is trite that retirement homes or old age homes as they
call it, are developed to provide a social environment where seniors
can interact with their peers and the retirees and have a
comfortable living experience through modern developments. It is
this that is projected by the petitioner while developing the project
'Serene Urbana'. The highlights projected at the time when the
project was advertised and retired people were lured are as follows:
"Highlights of Urbana Project:
1) First and the Biggest Retirement Housing with 'Freehold
property' within the vicinity of Bangalore City.
2) Close to about 10 Kilometers from Devenahalli Town and with
easy public road access.
3) The proposed project is very close to "GVK International
Airport" @ Bangalore.
4) Plenty of green area for refreshing natural environment.
5) Specially designed for senior lifestyle with ramps and hand
rails in all important areas.
6) Stretcher lifts for emergency evacuations.
7) Centrally air-conditioned medical and nursing facilities,
assisted care with a resident doctor, nurse and
physiotherapist.
8) Fully stationed ambulance.
9) Luxurious centrally air-conditioned dining facilities with
dietician monitored hygienic food.
10) Housekeeping services including cleaning and moping inside
the house.
11) 24/7 Security.
12) 24/7 Electrical, Plumbing and other preventive maintenance
services.
13) Garbage clearing arrangements.
14) Travel services including pick up drop and ticketing.
15) Recreation arrangements including social evenings, dance
and music.
16) Religious tours and holidays.
17) Picnics and Tours, visits to Theatres, restaurants and
shopping malls.
18) Entertainment activities for residents.
19) Event management services.
20) Arrangement for celebrations like birthdays, wedding
anniversaries etc.
21) Payment of bills and taxes.
22) Arrangement of Banking Facility.
23) Guest Houses for Guests and relatives.
24) Geriatric Gym. Ayurvedic Massage Centre.
25) Travel and Tour Desk Facilities.
26) Laundry Facilities.
27) Library and Reading Room.
28) Open Air Theatre.
29) Indoor TV Room.
30) Badminton Court.
31) Outdoor Sports Arena.
32) Jogging Track."
The aforesaid is part of communication to the home buyers. It is on
the aforesaid assurance of delivery of the project with all the
aforesaid amenities within the time frame, the retired people/ senior
citizens have invested. The investment of senior citizens sometimes
is from out of the entire savings, of their life time, or by raising
finance from financial institutions who would face the wrath of
proceedings under the SARFAESI Act, 2002, if they do not repay the
amount. They sometimes neither have the money nor the
apartments for them to live in. Home buyers are dodged by the
developers as could be gathered from mushrooming of cases before
the Authority and before this Court alleging that the projects are
continuing beyond 10 years and the home buyers are not in a
position to occupy the same.
17. The projection is that it is not an 'on-going project'. The
contents of projection suffer from material suppression of facts, as
none of the documents are placed on record by the petitioner while
securing an interim order at the hands of this Court. It is the 2nd
respondent who has placed every document on record and the
documents would demonstrate that the petitioner has played fraud
with the Gram Panchayat in securing occupancy certificate. Such
fraud cannot be played only by the hands of the developer or
by the hands of the competent officers, it can be played only
when the hands of the competent officers are in the glove of
the developers. It is an action hand in glove.
18. Therefore, it is necessary to admonish the competent
authorities who are empowered to issue occupancy certificates not
to sit in four corners of their air-conditioned chambers and issue
occupancy certificates, to the developers, for their asking. The
Authorities henceforth shall inspect the property, satisfy themselves
whether occupancy certificate can be issued in terms of law, and
only then issue such occupancy certificate, failing which those
officers who handle such files where grant of occupancy certificate is
sought, would be solely responsible and accountable for issuance of
illegal occupancy certificates. Looking at the large increase in the
number of cases which call in question reckless issuance of
occupancy certificates, it has become necessary to direct the State
Government to issue necessary circular in the form of guidelines to
the Authorities who handle grant of occupancy certificates to strictly
adhere to the conditions necessary to be looked into while granting
occupancy certificates. The circular shall also bear that in the event
of scrutiny of such occupancy certificates, if it is found that they are
issued contrary to law, those officers would become open to
initiation of departmental enquiry, or in a given case registration of
crime, as well against those officers. The developers should bear in
mind, particularly of those projects, which involve retirement homes
or homes for senior citizens, should not make those citizens run
pillar to post, to secure accommodation, after them having paid
substantial amount. It is necessary to bear in mind that
retired people should not be made to re-tire themselves.
19. For the aforesaid reasons, I pass the following:
ORDER
(i) Writ Petition stands dismissed.
(ii) It is declared that 'Serene Urbana', project of the
petitioner was an 'on-going project' as on 10-07-2017,
the date on which the Rules come into force.
(iii) The petitioner, as directed by the Karnataka Real Estate
Regulatory Authority, within 4 weeks from the date of
receipt of a copy of this order, register itself before
Karnataka Real Estate Regulatory Authority.
(iv) The State Government, through the Departments of
Rural Development and Panchayat Raj and Urban
Development, shall issue necessary circulars to all the
authorities who are empowered to grant occupancy
certificates, bearing in mind the observations made in
the course of the order.
(v) The circular, aforesaid, shall be issued within 8 weeks
from the date of receipt of copy of this order.
Compliance of such issuance be placed before this Court
in these proceedings, within the expiry of the said 8
weeks.
(vi) Registry shall forward a copy of this order to the Chief
Secretary, Government of Karnataka for its compliance
and reporting of such compliance.
Sd/-
JUDGE
bkp
CT:SS
