ORDER
SH. RAKESH KAPOOR, PRESIDENT

       The complainants had booked a residential unit in Earth towne
Greater Noida West vide application dated 25.9.2012.   They were
allotted unit no. 801 Tower D with a super area of 1095 Sq.ft.  They
have deposited a sum of Rs. 2,75,000/- as the booking amount vide a
cheque dated 25.9.2012. The complainants had further deposited
different sums from time to time towards the cost of the flat booked
by them.   In all, they had deposited a sum of Rs. 919650/-. It is
alleged by the complainants that on 9.4.2013 they had  received a
letter from the OP which was dated 14.1.2014.   They were asked to
sign consent letter for unit no. 2003 which was located on the  20th
Floor in Tower ‘S’ instead of the booked flat bearing unit no 801
Tower D which was located on the 8th Floor.    Since this was not
acceptable to the complainants  they  had refused to sign the consent
letter and took up the matter with the Ops  for restoration of the
already booked unit in their favour.  They also served the OP with a
legal notice dated 20.10.2014 but to no result.   They have ,
therefore, approached this forum for redressal of their grievances.
   The OP has contested the complaint and has filed a written
statement. It has denied any deficiency in service on its part and has
claimed that the complaint filed against it is not maintainable.
        Paras 1 to 5 of the PARAWISE REPLY of the written statement
filed by the OP gives the defence of the OP to the present complaint.
These paras are reproduced as under:-

1. That Para 1 of the complaint is wrong and denied. It is denied that
the complainant purchased a residential unit under the construction
link plan from the respondents against payment of sale consideration
amount of Rs. 31,23,995/-. It is denied that the complainant comes
well within the definition of the consumer as prescribed under the
relevant provisions of the Consumer Protection Act 1986.1t is
submitted that the complainants applied for a flat in the OPs project
. However the complainant has failed to make further payment of
installments and paid only a sum of Rs. 9,18,850/-and neglected to pay
the balance amount despite demand notices dated 26.10.2012, ,
23.7.2013, 16.8.2013, 13.11.2013 and 16.9.2014 copy of the demand
letters are attached here as Annexure OP-1 to 5 .It is submitted        that
thecomplainant after her satisfaction approached the Opposite Party
herein to accept her payment for the booking in the project being
developed by the OP company. The OP stands by its advertisements and
there had been no misrepresentation and no negligence on the part of
the OP.
2. That para 2 of the complaint as stated is wrong and denied for
application of the complainant. It is denied that the said application
form clearly and succinctly states that the booking is for Unit No.
801, Tower D having super area of 1095 Sq. Ft(hereinafter referred to
as the unit") and an initial payment of Rs. 2,75,000/- ( Two Lacs
Seventy Five Thousand only ) through Cheque No. 018805 dated 25.9.2012
was made by the complainants towards the above booking.lt is submitted
that the complainant applied for a flat in OPs Project on 25.9.2012.
Subject to the terms and conditions contained in the application form
which inter-alia provided that
Clause 4 D " the applicant accepts that the plans are tentative and
the area/location of said unit ( i.e. flat no. 801) may be changed/
varied during the course of construction to the extent of plus / minus
10% to which the applicant shall not object. The applicants further
agree to pay the consideration for the increased area, if any and if
the area will decree the developer will refund the amount or adjust
the amount in future installments as the case may be. However subject
to the fact, that if the area increases or decreased by 3% no amount
shall be demanded or refunded by the developer as the case may be.
Clause 27. ".
The applicant (s) has seen, understood , and accepted that the
building plans, building designs, facilities and specifications, are
tentative and still to be submitted with the Greater Noida Industrial
Development Authority for the purpose of approval. The applicant(s)
agrees that the Developer may make such variations, additions,
alterations and modifications etc. (which may include changes in the
area of the unit, floor, tower, number of units, towers location and
increases/decreases in the number of car parking slots allotted to the
applicant(s) therein as may be directed by any competent
authority/authorities and architect or otherwise and the applicant/s
hereby given his consent to such variation, addition, deletions,
alterations and modifications etc., the drawing shown to customer
pertaining to the project in question and the floor plan are covered
area basis. This will however, be subject to any modification that may
be made by the sanctioning authority or may be necessitated during the
course of sanction/construction. That the area shown in the brochure
,Map, Plan or any other documents etc. is from well centerlines and is
indicative only . The actual final area will be calculated at the time
of construction. It is clarified the initial rate of booking of the
unit will be applicable on the changed area. That the applicant hereby
agree that the developer will not entertain any request for any change
in construction/design of any type in the unit." Copy of the booking
form is attached here as Annexure OP 6.

3.That Para 3 of the complaint are wrong and denied.
It is denied that at the time of filing up of the application form, it
was clearly informed by the respondents that the payment is
specifically towards the unit that has been mentioned in the
application form. It is wrong and denied that the respondents/OP and
the complainants were at ad¬idem insofar as the payment was with
respect to the unit and it was beyond any iota of doubt that the
complainants were filing up the application form and the initially
payment was only towards above stated specified unit.lt is submitted
that the complainants after their satisfaction approached the Opposite
Party   herein to accept their payment for the
booking in the project being developed by the OP Company. It is
submitted that the allotment of Unit no. 801 was tentative as detailed
in preceding para.
It is further submitted that intimation letter has been sent to the
complainant on 28.12.2012 regarding changing of master plan by the U.P
Government. It is submitted that the Op has not changed the unit of
the complainant intentionally it is submitted that due to the change
in the master plan the OP has to change the unit of the complainant.
This is in context of your booking in our project "Earth Towne" being
constructed on plot no. GH-04, Sector-1 , Greater Noida, U.P. As you
are well aware that the construction/development in Greater Noida West
was stayed vide the order dated 21 October 2011 passed by Hon'ble
Allahabad High Court and it was stayed till the observation and
directions of the National Captial Region Planning Board (NCRPB) be
incorporated in the master plan 2021.  Copy of the said letter is
attached here as annexure OP7.
4.      That Para 4 of the application is wrong and denied. It is denied
that after having realized the Cheque towards the above mentioned
unit, the respondents were supposed to allot the same unit that was
booked originally and as mentioned in the application form. It is
submitted that the applicant's application for booking of flat
mentions that booking of flat no. 801 was tentative as mentioned in
the application that the OPs have fulfill their duties and intimate to
the complainant time to time regarding their booking. That the OP sent
a letter to the complainant on 14.01.2013 and intimate them about
their tower no. , floor no, unit no and area etc.
5.      That Para 5 of the complaint is a matter of record. It is submitted
that the complainant is liable to make payments as per the terms and
conditions envisaged in the application form and the complainant has
failed to make balance payment despite repeated demands and letters
from the complainant vide letters dated 26.10.2012, 14.12.2012,
23.7.2013, 16.8.2013, 13.11.2013 and 16.9.2014.
        The Op has claimed that as per clause 27 of the terms and
conditions agreed to between the parties it was within its right to
change the allotment of the flat to another tower and floor.  It has
claimed that it had sent letters to the complainant apprising them of
the legal position in this regard.  It has also stated that it had
raised demands upon the complainant towards  the cost of the flat
allotted to them and since the complainants had failed to make payment
in accordance with the terms and conditions of payment agreed to
between the parties, it had cancelled the allotment in favour of the
complainants. It has claimed that the present complaint has no merits
and the same is liable to be dismissed. It has prayed accordingly.
        We have heard arguments advanced at the bar and have perused the record.
          Some of the facts are not in dispute.   It is admitted on record
that the complainants had booked a flat with the Ops vide application
form Ex. CW1/1 and had deposited a sum of Rs. 2,75,000/- as the
booking amount.  A perusal of the application form makes it amply
clear that the booking was made against unit no. 801 tower D with a
super area of 1095 Sq. Ft.  The booking was made on 25.9.2012.  It is
also admitted that the complainants had made payments towards the cost
of this flat on 1.11.2012.  (Rs 37,800/-) , 5.1.2013 (Rs. 2,40,000/-)
, 5.1.2013 (Rs. 63,425/-) and 18.5.2013 (Rs 9,03,425/-)  Ex. CW1/2 is
a letter dated 14.1.2013 which was allegedly received by the
complainants on 9.4.2013 whereby the complainants consent was sought
to the  allotment of Unit no. 2003 Tower S  which was located on the
20th floor.    The complainants refused to give consent to the change
of the allotment and took up the matter with the OP vide letter dated
12.4.2013, emails dated 13.4.2013 ,24.4.2013 , 5.5.2013 and further
vide letters dated 6.5.2013 and 17.5.2013. The complainants also wrote
an e-mail dated 19.4.2013 in this regard before a response was
received from the OP.     Vide letter dated 11.9.2013  (Ex. CW1/10) ,
the OP offered another flat unit no. 1603 tower G which was located on
the 16th floor.    The complainants again refused to accept this
allotment and continued to insist on restoration of their original
allotment made in their favour. They had also served a notice dated
20.10.2014 on the OP which also had  remained uncomplied with.   It is
thus clear that the complainants had insisted on the allotment of flat
no. 801 Tower D located on the 8th Floor.   They had never consented
to the shifting of the allotment in their favour to any other location
/ floor.    As already stated , the flat was booked on 25.9.2012 and
the complainants had made substantial  payments towards the cost of
this  flat in 2012 / 2013. The OP had for the first time sent a letter
to the complainants  in2013 seeking their consent to shifting of the
allotment  made in their favour to Unit no. 2003 Tower S located on
the 20th Floor.  The complainants had refused to give this consent.
The Ops were, therefore bound to restore the allotment in favour of
the complainants as originally booked.   The complainants had written
several letters and e-mails in this regard but the Ops had rather than
resolving the issue continued to ignore  these letters / emails.   The
unilateral action of the shifting of allotment to another tower and
from 8th floor to 20th floor was therefore unwarranted , uncalled for
and illegal. This was clearly an act of deficiency on the part of the
Op.
         The Op has taken refuge  behind clause 4 (D) and clause 27   of the
application form and has  justified its action of change of allotment.
We have gone through the aforesaid clauses in the application form
which in our considered opinion do not come to the rescue of the op.
Clause 4 (D) of the application form simply states that the area /
location of the unit  may be changed / varied during the course of
construction to the extent of   plus/minus 10 percent  of the allotted
area. This clause has therefore no application  to the case of the
complainants  as  it is  merely concerned with the increase and
decrease in the allotted area. Therefore, recourse to clause 4 (D) of
the application is  not tenable and is  mis-conceived. A perusal of
the  clause 27 of the application form makes it amply clear that  that
the developer was authorized to make such variations , additions  ,
alterations ,  modifications etc which may include changes in the area
of the unit, floor , tower , number of units , towers location of car
parking slots allotted to the applicants as may be directed by the
competent authority/ authorities and the architect.   The Ops have not
placed on record any document showing that the shifting of the
allotment in the case of the complainants was done as per the
directions of the competent authorities or the architect.  In the
affidavit  filed on behalf of the OP  ,  it has been stated that the
change in the unit had been done due to the change in the master plan.
  This is a bold statement which is not supported by any document
whatsoever and needs to be rejected. It is therefore, clear that
recourse to clause 4 (D) and clause 27 in order to change the
location/ floor of the booked unit is misplaced and without any legal
force.    We are of the considered opinion that the OP was not
justified in changing the location  or the booking of the flat already
allotted in favour of the complainants unless it was agreed to by
them.   The complainants were not obliged to make any further payment
to the OP unless the original allotment was restored to them.
Therefore, the action of the OP in cancelling the allotment and
forfeiting the amount deposited by the complainants towards the cost
of the flat allotted in their favour was an act of deficiency on the
part of the OP.  We , therefore, direct the OP as under:-
1.      Pay to the complainants a sum of Rs. 919650/- (Rs Nine Lakhs
Nineteen Thousands and Six Hundred and Fifty Only) along with interest
@ 18% p.a. from the date of deposit till payment.
2.      Pay to the complainant a sum of Rs.50,000/- as compensation for
pain and mental agony suffered by them.
3.      Pay to the complainant a sum of Rs. 10,000/- as cost of litigation.

The OP shall pay this amount within a period of 30 days from the date
of this order failing which they shall be liable to pay interest on
the entire awarded amount @ 10% per annum.  IF the OP fails to comply
with this order, the complainant may approach this Forum for execution
of the order under Section 25/27 of the Consumer Protection Act.
        Copy of the order be made available to the parties as per rule.
    File be consigned to record room.
        Announced in open sitting of the Forum on.....................