Odisha REAT Upholds RERA Order On Shifted Sewage Plant, Finds Ambience Concerns 'Forceful And Logical'

The Odisha Real Estate Appellate Tribunal (OREAT) has recently upheld an Odisha RERA order directing Evos Buildcon Pvt. Ltd. to restore a sewage treatment plant (STP) in its "City Homes" project to the location shown in the sanctioned plan.

The tribunal accepted a homebuyer's grievance that the relocation had affected the ambience of her flat.

Rejecting the builder's plea that restoring the STP would be costly and affect other residents, the tribunal observed:

"The further plea of the appellant that installation of the STP again at its original position would incur huge expenditure and will adversely affect the interest of the developer and other allottees, is not acceptable as the appellant should have thought about the expenditure before shifting the STP from its original position in deviation to the sanctioned plan."

A bench of Chairperson Justice P. Patnaik, Judicial Member S.K. Rajguru and Technical Member Dr. B.K. Das held that Evos Buildcon could not shift the STP from the location shown in the sanctioned plan without obtaining the prior written consent of two-thirds of the homebuyers

It also upheld the homebuyer's claim for interest for delayed possession.

The dispute arose from a flat booked by Seema Mohapatra in Evos Buildcon's "City Homes" project. She complained that the STP had been shifted from the position shown in the sanctioned plan, adversely affecting the ambience of her flat. She also raised grievances regarding delay in possession and the absence of statutory approvals.

Odisha RERA subsequently directed the developer to execute the sale deed after obtaining the Occupancy Certificate.

It also directed payment of interest on ₹49,33,835 paid by the allottee and ordered that the STP be maintained at the position reflected in the sanctioned plan.

Challenging that order, Evos Buildcon argued that the STP had been relocated under a revised plan. It contended that no other allottee had objected to the change.

The developer also argued that restoring the STP to its original location would involve substantial expenditure and adversely affect the interests of other residents. It further claimed that Mohapatra had defaulted in making payments and was therefore not entitled to relief.

Mohapatra disputed those claims. She maintained that she had already paid ₹49,33,835 and that only ₹4,16,165 remained payable at the time of execution of the sale deed.

She further argued that the builder had failed to produce any approval specifically permitting relocation of the STP. According to her, the developer had also failed to obtain the written consent required from allottees.

The tribunal found that the developer had failed to produce evidence showing compliance with the requirement of obtaining prior written consent from two-thirds of allottees before altering the sanctioned plan.

It rejected the contention that consent could be presumed merely because no other allottee had objected. The tribunal held that the law specifically required prior written consent and that no such consent had been shown.

Addressing the builder's claim that restoration of the STP would affect other residents, the tribunal observed:

"He has not made it clear as to how the shifting of the STP to its original position will affect the interest of other allottees."

The tribunal then accepted Mohapatra's grievance regarding the impact of the relocation on her flat. It observed:

"On the other hand the learned counsel for the respondent has stuck to the claims and allegations of the respondent in her complaint petition. It is submitted that the respondent has paid more than 85% of the cost of the flat and is to pay only an amount of Rs.4,16,165/- at the time of registration of the sale deed."

On the issue of possession, the tribunal rejected the builder's argument that the allottee was responsible for not taking possession.

It noted that the project had not obtained an Occupancy Certificate. Referring to Supreme Court precedents, it held that a purchaser cannot be compelled to accept possession without completion and statutory certificates.

The tribunal upheld the direction granting interest for delayed possession. However, it modified the rate to SBI's highest Marginal Cost of Lending Rate plus two percent. This worked out to 9.30% per annum as on January 1, 2022.

Finding no other infirmity in the Odisha RERA order, the tribunal dismissed the appeal.

For Appellant (Evos Buildcon Pvt. Ltd.): Senior Advocate P.K. Rath.

For Respondent (Seema Mohapatra): Advocate S.K. Dwivedy.