If there is deficiency in the application, the promoter cannot claim the deemed issuance of the occupancy certificate.

 

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In view of the deficiency in the application, the promoter cannot claim the deemed issuance of the occupancy certificate.

The application for issuance of occupancy certificate shall be moved in the prescribed form and accompanied by the documents mentioned in sub-code 4.10(1) of the Haryana Building Code, 2017. If the application submitted is not in prescribed form or the requisite documents as mentioned therein has not been submitted along with application, then application for issuance of occupation certificate cannot be said to be complete. If there are certain prerequisite those are to be met with before considering application for issuance certificate, then also in absence of such requisites being fulfilled, the application cannot be said to complete. If there is a provision of deemed issuance of occupation certificate in case no response is received from the competent authority, then such deemed issuance of occupation certificate clause shall be applicable once the application for issuance of occupation certificate is moved in prescribed form and accompanied by documents mentioned in code 4.10 of the Haryana Building Code, 2017 and also prerequisite for applying occupation certificate has been met with. The occupancy certificate has been issued for this project (Palm Gardens) on 10.01.2018, 02.05.2019 and 17.10.2019 and the application submitted by the promoter was not accompanied with the fire NOC which has been issued only on 27.11.2017, 27.03.2019 and 05.07.2019 respectively. By that time, the rules had already become applicable.

The Hon’ble HRERA doesn’t find any substance in the plea raised by promoter that the honorable authority had no jurisdiction to see as to whether the application moved by the promoter was complete or incomplete as this function falls within the administrative jurisdiction of the Director Town & Country Planning, because once the promoter was claiming issuance of deemed occupancy certificate before the authority on the basis of the provisions of the Building Code, the authority could not be a silent spectator to the deficiency in the application submitted by the promoter for issuance of the occupancy certificate. Thus, in view of the deficiency in the application, the promoter cannot claim the deemed issuance of the occupancy certificate. There is no applicability of deemed occupation certificate in case of deficient application, application not being in prescribed form, application not accompanied by prescribed documents or without meeting the prerequisite for applying for occupation certificate. The incomplete application is no application in eyes of law. Therefore, this project was neither issued occupancy certificate nor the completion certificate on or before the date of enforcement of the Act. So, there is no escape from the conclusion that the project in question required registration under section 3 of the Act. Once it is found that the project in question required registration, it will certainly be the ‘ongoing project’ and provisions of the Act, the rules and the regulations framed thereunder will become applicable.

 

ADVOCATE KULDEEP KUMAR KOHLI

KOHLI AND KOHLI LAW ASSOCIATES

V-3/11, DLF PHASE III, GURUGRAM,

 HARYANA – 122002

Ph:01244014318,0124 4990107

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