The main legal principle established in the judgment is the interpretation and application of the definition of 'ongoing project' under Rule 2(h) of the Uttar Pradesh Real Estate (Regulation and Development) Rules, 2016, and the obligations of the promoter under the Act of 2016.

JUDGMENT :

(Saurabh Lavania, J.)

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

Heard.

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

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

Delay is condoned.

Order on Appeal

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

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

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

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

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

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