TaxTMI 
TaxTMI 
2025 (9) TMI 1049
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....inafter referred to as 'REAT'], whereby REAT, while relying on the judgment of the Supreme Court in Newtech Promoters and Developers Pvt Ltd. vs. State of Uttar Pradesh & Ors. (2021) 18 SCC 127, has dismissed the Appeal of the Appellants on account of failure to make the pre-deposit in terms of Section 43(5) of the Real Estate (Regulation & Development) Act, 2016 [hereinafter referred to as 'RERA Act']. 2. With the consent of learned counsel for the parties, both Appeals are heard together and are being disposed of by this common order. For convenience, the facts are primarily drawn from RERA APPEAL 5/2024, captioned CJ Infrastructure Pvt. Ltd. &Anr. vs. Real Estate Appellate Tribunal for NCT of Delhi & UT Chandigarh &Ors. FACTUAL MATRIX: 3. In the year 2010, the Appellant Company acquired a freehold area at 21, District Centre, Laxmi Nagar, Delhi, where it has constructed a commercial complex (Metroplex East) which comprises 197 units besides common areas like entrance lobby, elevators, staircases, etc. The construction was allegedly completed on 14.02.2013. A licensed Architect issued a certificate declaring the same as fit for occupation. The Appellant Company is allege....
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....ntal error in passing the said order. 7. Thereafter, in the year 2022, the Appellant Company filed appeals before the REAT, wherein the question of the applicability of RERA Act in the present set of facts was raised. Vide the order dated 22.05.2023, REAT has imposed a condition of pre-deposit of the full amounts adjudicated by the RERA AA and made the continuance of the appeals contingent upon the Appellants fulfilling the condition of the pre-deposit in the impugned order. 8. Further, vide the impugned orders, REAT has dismissed the Appeals relying on the mandate of Section 43(5) of RERA Act and the judgment of the Supreme Court in Newtech Promoters and Developers (supra). 9. In the meantime, on 28.01.2022,the Appellants had filed a writ petition W.P. (C)No. 1978/2022 before this Hon'ble Court, against DDA, praying for a suitable order directing the DDA to issue an OCC. It is noteworthy to mention that the main question in this writ petition is whether or not the Appellants are deemed to have completed the building before enforcement of the RERA Act. The same is pending adjudication before this Hon'ble Court. CONTENTIONS OF THE PARTIES: 10. The following contention....
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....ve come in Appeal primarily on the ground that the OCC was deemed granted as there was no response from the DDA. At this juncture, a bare perusal of Rule 8(ii) of Building Bye-Laws, 1883, would be appropriate. The same is reproduced hereunder: "8. (ii) Procedure for Processing of the issue of Occupancy Certificate. The authority on receipt of the notice of completion, shall inspect the work and sanction or refuse an occupancy certificate, in the proforma given in Appendix 'H' within 60 days from the date of receipt of completion certificate, after which period it shall be deemed to have been approved by the Authority for occupation. Where the occupancy certificate is refused the various reasons shall be quoted for rejecting at the first instance itself." 15. At the same time, it is also pertinent to refer to the corresponding Rule Nos.2.7.10 to 2.7.12 in UBBL - 2016. The same has been reproduced hereunder: "2.7.10 Deemed OCC: (a) If the sanctioning authority fails to intimate the owner/ applicant, of its refusal or approval or any intimation, within the time limit stipulated in bye-law 2.7.1, OCC shall be deemed to have been issued. Ho....
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....that in light of the rejection of the OCC, whether the OCC was deemed granted or not holds no value, as the situation at the time of the filing of the Appeal before the REAT is that no OCC exists with the Appellants, therefore RERA Act will be applicable. 19. With regard to the other submission of the parties, this Court is of the view that the present case squarely attracts the provisions of Section 43(5) of the RERA Act, which stipulates as under: "(5) Any person aggrieved by any direction or decision or order made by the Authority or by an adjudicating officer under this Act may prefer an appeal before the Appellate Tribunal having jurisdiction over the matter: Provided that where a promoter files an appeal with the Appellate Tribunal, it shall not be entertained, without the promoter first having deposited with the Appellate Tribunal at least thirty per cent. of the penalty, or such higher percentage as may be determined by the Appellate Tribunal, or the total amount to be paid to the allottee including interest and compensation imposed on him, if any, or with both, as the case may be, before the said appeal is heard. Explanation- For the purpose o....