Land-owners are deemed consumers under the Real Estate Act, allowing them to file complaints against builders, overriding arbitration clauses in contracts.

JUDGMENT :

Sunil Dutta Mishra, J.

This Miscellaneous Appeal has been preferred against the judgment dated 04.11.2020 passed by the Real Estate Appellate Tribunal, Bihar, Patna (hereinafter referred to as ‘Appellate Tribunal’) in REAT Appeal No.08 of 2019 by which the appeal preferred by the appellant has been dismissed and the order dated 09.08.2019 passed by Real Estate Regulatory Authority, Patna (hereinafter referred to as ‘RERA’) in RERA Case No.CC81/2018, CC/82/2018 and CC/83/2018 was upheld.

2. The brief facts of the case are that complaint petitions under Section 3 1 of the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as the ‘Act, 2016’) were filed against the appellant i.e. M/s Nesh India Infrastructure Pvt. Ltd. (Builder/Developer) with respect to possession of their share of flats in A.G. Enclave Tiruvantpuram City after issuance of Completion Certificate and Occupancy Certificate of the project, compensation at prescribed rate for the period of delay in handing over the flats and additional share for constructing the building of seven floors instead of five floors as agreed. The complaint petitioners are the owners of the pieces of land measuring 5926.3 sq.ft. allotted by Alok Sahkari Grih Nirman Samiti, a society registered under Bihar and Orissa Co- operative Societies Act, 1935. The appellant had proposed to develop a residential building, namely, Tiruvantpuram City on pieces of land measuring 9978.297 sq. meter owned by 40 odd land-owners. In the registered Development Agreement dated 25.08.2011 being done in the light of Bihar Apartment Ownership Act, 2006, it was agreed that the builder shall provide flats of super built up area of 2.25 times of their given land admeasuring area of 2000 sq.ft. i.e. 4500 sq.ft. to each of them along with a parking space for a four-wheeler vehicle with each flat. In view of clause 5 of Development Agreement, a separate supplementary agreement was also executed on the same day between the owners and developers for determination of actual share portion wherein the builder agreed to give three flats each of 1440 sq.ft. as follows:-

I. Ms. Savita Sah (respondent no.1) – Flat No.-C/311, C/312 and D/104, Phase 1, AG Enclave.

II. Mr. Sitaram Singh (respondent no.2) - Flat No.B/207, B/309 and D/103, Phase-1, AG Enclave.

III. Mr. Navin Kumar Sinha – Flat No.B/205, B/206 and B/208, Phase-1, AG Enclave.

3. It was also prescribed in the said agreement that the petitioners will not have to pay anything to the developer in this respect at the time of possession. The Development Agreement also stipulated that the project would be completed within two and a half years of signing of the Development Agreement with a grace period of six months. It was also agreed that if the developer fails to complete the construction of flats within the stipulated time frame, the developer shall be liable to pay to the land-owner compensation at the rate of Rs.8000/- per flat per month to each of them till handing over the possession of completed flats. It was further provided under clause 21 of the agreement that if the said multi-storied building is further extended vertically adding more number of floors then the share of additional construction shall be distributed proportionately among the complainants.

4. The petitioners claimed that the project was not completed even after seven years and the appellant also demanded illegal money then the petitioners, who are three land owners of the agreement, filed complaint under Section 31 of the Act, 2016 which was decided in favour of the complainants/petitioners. Vide order dated 09.08.2019, the RERA directed to hand over possession of three specified flats along with covered parking space for a four-wheeler vehicle with each flat to each petitioner after taking completion as well as occupancy certificate of the said project within sixty days of issue of that order and liberty was given to the petitioners to approach Civil Court or Consume