ORDER

SH. RAKESH KAPOOR, PRESIDENT

1. The aforementioned four complaints arise out of common facts and
are being disposed of by this common order.   Briefly stated facts
leading to the filing of these complaints are as under:

  2.  The complainants in the four complaints had booked separate
flats with the OP in the year 2011. Complainant Poonam Manchanda in
Complaint no. 53/2015 had deposited   a sum of Rs. 6,00,000/-  (Rs Six
Lacs) at the time of the booking vide receipts issued in her favour.
 In June 2011 ,the OP had raised a demand at the rate of 15% of the
Basic Sale Price whereafter  she had deposited  another sum of Rs.
7,50,000/-.  In all, she had deposited a sum of Rs. 13,50,000/- with
the OP.



 3. The complainants Ankur Manchanda and Neha Manchanda in complaint
no. 50/2013 had deposited a sum of Rs. 5,00,000/- at the time of
booking and another sum of Rs. 12,50,000/- in September/ December 2011
after a demand at the rate of 15 % of the basic sale price was raised
by the OP in June 2011. In all they had deposited a sum of Rs.
17,50,000/-.



                 4. Complainant Geetika Sachdeva and Chand Sachdeva
had also deposited a sum of Rs. 5,00,000/- at the time of the booking
and had further deposited   a sum of Rs 8,50,000/- totaling to Rs.
13,50,000/- which amounts to 25% of the basic sale price of the flat
booked by them. Complainant Ashok Kapoor in complaint no. 51/2015  had
deposited  a sum of Rs 2,00,000/- at the time of booking and a sum of
Rs. 15,00,000/-  totaling to Rs. 17,00,000/- which amounted to 25% of
the basic sale price of the flat booked.



5.   The bone of contention between the complainants on the one side
and the OP on the other are the   other /additional charges which are
sought to be levied  on the complainants in the Apartment–Buyers
Agreement which the complainants are being asked to execute. The
complainants have raised the issue of the levy  of these charges
with the OP but the same has not been resolved which has led to the
filing of the present complaints.

6.  It is the case of the complainants that at the time of the booking
 of the flats ,  they were made to sign an application form (EX.C1)
(Application for booking of the residential apartment in “Earth Copia”
Gurgaon)  according to which the basic sale price of the flat with a
super area of  1835 Sq. Ft. was agreed to be Rs 54,13,250/-. The basic
sale price for a flat having super area 2392 sq. ft. was agreed to be
Rs. 77,74,000/-. However, when a  Copy of the Apartment  – Buyer’s
agreement was received by the complainants, they realized that the
total cost of the apartment including the cost of the additional
charges sought to be levied will come to Rs. 75,23,455/- for the flat
having a super area of 1835 sq.ft. and Rs. 97,44,616 for the flat
having a super area 2392 sq. ft.   The complainants have alleged that
this increase  on account of additional charges is unreasonable and
uncalled-for.  They have claimed that the additional charges sought to
be levied on account of multiple Preferential Location Charges,
Electricity Charges, Club Membership Charges, Charges For Covered
Parking Space etc are  illegal and cannot be levied. In the
complaints, the complainants have  dealt with all these additional
charges separately and have claimed that these are unjust and illegal.
  The complainants case in respect of these levies under separate
heads may be stated as under:

7.Preferential location charges: -

       The preferential location charges are sought to be levied with
regard to the location of the allotted  flats in particular floors. It
has to be remembered that the tower on which the flats have been built
has a stilt above which the flats are located.  Therefore, no flat is
located on the ground floor and all the flats are located on the first
floor and up to the 19th Floor.   The application form Ex.C1 Contains
a stipulation as to how floor preferential location charges will be
applicable to the allottees of the flats.   It reads as under:-



FLOOR PREFERENTIAL LOCATION CHARGES

01st & 02nd Floor
             175/- per sq. ft.

03rd & 04th Floor
              150/- per sq. ft.

05th & 06th Floor
              125/- per sq. ft.

07th  & 08 th Floor
              100/- per sq. ft.

09th & 10th Floor
              75/-  per sq. ft.

11th to 15th Floor
              50/- per sq. ft.

16th & 17th Floor
              75/- per sq. ft.

   18th & 19th  Floor
         100/- per sq. ft



8.  It is the case of the complainants that the allotment of the flats
has not been made to them according to their choices. It is also their
case that they had not given any preferential location of the floors
for the allotment of the flats in their favour. They have stated that
flats on the particular floor were allotted to them by the OP.  it is
the case of the complainants that since they have not opted  for any
preferential floor located flat,  they cannot be burdened  with the
additional charges on account of preferential floor  location charges.

9.    Corner / Front Preferential charges.

     It has been pointed out by the complainants that road/ corner
facing preferential location charges @Rs 75/– per sq. ft. are sought
to be levied in addition to the floor location charges.  It is the
case of the complainants that all the flats constructed  by the OP are
corner flats. They have stated that they had not exercised any option
for corner flats nor were in a position to exercise any preference  in
this regard in as much as there was a compulsion  to accept  the
corner flat.   They have, therefore, claimed that since it was not a
matter of preference/option ,  the levy on account of corner/ front
PLC was illegal.

10.    External Electrification cost @ Rs 100/- per Sq. Ft.

          It has been pointed out by the complainants that the price
list given to them at the time of booking contained a stipulation that
the external electrification charges and fire fighting charges both
combined shall be levied @ Rs. 100/- per sq. ft. but in the Apartment
– Buyer agreement it is shown for External Electrification charges
only. The complainants apprehend that in future OP might seek more
money on Account of fire fighting charges.  It is, therefore, prayed
by the complainant that the OP be directed to rectify the agreement
and include fire fighting charges also within the charge of the
external electrification.



11.    Electric Connection Charges (ECC) of Rs. 1,00,000/-

         It has been pointed out by the complainants that an
additional charge of Rs. 1,00,000/- is sought to be levied on account
of electric connection charges which was not mentioned in the price
list supplied to them at the time of booking.   This in spite of the
fact that the price list contained external  electrification  charges
as EEC and Digi Power  backup.  It is, therefore, the case of the
complainants that the additional charge on account of electricity
connection is not leviable.



12.    DG Power Backup

       The application form Ex.C1 contains a stipulation that Power
Backup charges will be charged @ Rs. 20,000/- Per KVA. It is the case
of the complainant that this charge was optional and cannot be levied
compulsorily.

13.    Interest bearing maintenance security

      It is stated that at the time of booking  , the complainants
were informed that the maintenance security will carry an interest
which is now sought to be made interest free. This is stated to be
illegal.



14.    Club Membership charges

      The application form Ex. C1 carries a stipulation that club
membership will be @ Rs. 1,00,000/-.   It is the case of the
complainants that the club membership charges cannot be made
compulsory and  the demand

 which is being made as compulsory is illegal.



15.    Covered Car Parking

      It is the case of the complainant that a sum of Rs. 3,00,000/-
is being levied on account of covered/ stilt   car parking which is
against the judgment of Hon’ble Supreme Court in the case of Nahal
Chand Laloo Chand Pvt. Ltd  Vs Panchali Cooperative Housing Society
Ltd 2010 AIR (SC) 3607 wherein it has been held that the covered /
still car parking being mandated by the law cannot be charged
separately.    It has been prayed that this charge be ordered to be
deleted.



16.    External Development Charges and  Infrastructural Development charge.

        It is the case of the complainants that EDC and IDC charges
are sought to be levied @ Rs. 373/- per Sq. Ft. of the super Area.
It is stated that these are on the higher side and cannot be charged
more than what is genuinely and legitimately payable to authorities
under the law.



17.    Interest

       It is the case of the complainants that the OP has delayed the
handing over of the possession of the flats and was also guilty of not
resolving the issues raised by them from time to time.   It is their
case that the OP had therefore rendered itself liable to pay interest
on the amount already deposited with it.  The complainants  have
therefore prayed that the OP be directed to pay interest to them.

   18.   Some issues with regard to Documentation have also been
raised by the complainants.

   19.      All the complaints have been contested by the Ops. The Ops
have denied any deficiency in service on their part and have claimed
that the complaints are liable to be dismissed as they are bereft of
any merits.  They have claimed that the complainants are related to
each other and the flats have been booked for commercial purposes .
paras 3 , 4 ,5,  6 ,8 ,9  ,10,11,17and 21 of the preliminary
objections of the written statement (Poonam Manchanda V/s Earth
Infrastructure) are relevant for the purpose of the decision of these
complaints and are , therefore, reproduced as under :-

3. That without prejudice to the above, it is humbly submitted that
the Complainant cannot be said to have any right to file the present
complaint much less agitate the issues, as sought to be raised in the
Complaint. It is a matter of record that the Complainant has only
submitted an 'Application Form', wherein it has been clearly laid
down, as understood by the Complainant himself, that the said
Application in no manner constitute an Agreement to Sell and the
Complainant, in no manner, become entitled to any provisional and/or
final allotment of the Apartment. There has been clear understanding
that only upon Complainant's signing and executing the 'Apartment
Buyers Agreement', agreeing to abide by the terms and conditions laid
down therein, that the allotment shall become final and binding upon
the Company i.e. the Respondent. Admittedly, the Complainant has not
signed and executed the Apartment Buyers Agreement and as such, it
cannot be said that any final allotment has been made, that too which
could be said to be binding upon the Company. In the absence of any
final allotment and/or concluded contract between the parties, the
issues sought to be raised by the Complainant much less the prayer, as
made, are not only unsustainable in the eyes of law, but also fall out
of the realm of the jurisdiction, which this Hon'ble Forum exercises.

 4.. That from the perusal of the Complaint, especially the prayer
clauses (i), (ii) and (iii), it is apparent that the Complainant is
seeking to agitate issues and/or seek reliefs, which are illegal and
unenforceable, more so in facts and circumstances of the case. The
Complainant, who does not even said to have any right and/or concluded
contract vis-a-vis the Apartment, in effect, is seeking directions
from this Hon'ble Forum, against the Respondent, firstly to change the
terms and conditions of the Apartment Buyers Agreement including the
cost of the Apartment, to suit the Complainants convenience and
thereafter to call upon the Respondent to execute the said Agreement
with the Complainant. The Complainant, neither in law nor on facts,
can agitate such issues and / or seek such reliefs that too under 1986
Act by misconceivingly  invoking the jurisdiction of this Hon'ble
Forum.

5. That the relief, as claimed by the Complainant, is in fact in the
nature of injunction restraining the Respondent from asking the
Complainant to pay requisite charges towards the cost of the
Apartment, which the Complainant seeks to purchase. In humble
submission, such nature of relief, which the Complainant has
surreptitiously sought to seek, cannot be said to fall within the
jurisdiction of this Hon'ble Forum and as such on this score also, the
Complaint is not maintainable.

 6. That without prejudice to the submission that the Complainant does
not even to have any right and any concluded contract / agreement with
the Company, it is humbly submitted that assuming, though not
admitting that there exists an agreement between the parties, in that
event as well, the reliefs as claimed by the Complainant can neither
be sought for nor granted. It is well settled law that the Agreement
by and between the owners / colonizers, the terms and conditions and
covenant therein, are purely under private law domain and the same
cannot be reviewed, evaluated, and/or interfered with, especially when
the same had been voluntarily entered into by and between the
owner/colonizer and the prospective purchaser of the flat/apartment.
It has been further well settled by the Hon'ble  Supreme Court that
even the Director General, Town and Country Planning, who issues
licence for development of a Colony under the provisions of Haryana
Regulation and Development of Urban Areas Act, 1975, as has been done
in the present case, is not authorized or empowered to review or
evaluate the terms of the contract and resolve the disputes, if any,
between the owners / colonizers and the purchasers of plots / flats.
There is no provision under the Act and the Rules, whereby the
licences provided, which empowers the Director to fix sale price of
the plots or the cost of flats. In view of the settled law, the
reliefs as sought to be claimed by the Complainant, cannot be said to
be sustainable and would fall outside the jurisdiction of this Hon'ble
Forum. In humble submission, any order, which is ultra vires or
outside jurisdiction, would be void in law i.e. deprived of its legal
effect.



8. That the Complainant, along with 3 others, namely Sh. Ankur
Manchanda, Smt. Geetika Sacdeva and Sh. Ashok Kapur, had desired to
book 4 independent Units/ Apartments in the Complex. Respective
Application Forms were filled up and submitted by the Complainants.
One such Application Form, as filled up by the Complainant, in the
above said Complaint is annexed hereto as Annexure R/1. The perusal of
the said Application would show that the Complainant has clearly
understood amongst other things, that besides Basic Sale Price, which
was agreed to be Rs.3360 per sq. feet, there were other charges such
like External Development Charges (EDC) and Infrastructure Development
Charges (IDC). Further, it had been categorically understood that the
total price does not include Interest Bearing Maintenance Security
(IBMS), which were at the rate of Rs.100 per sq. feet of the super
area, Preferential Local Charges (PLC), Club Membership, External
Electrification Charges (EEC), Fire Fighting Charges (FFC), Power
Backup Charges, Charges for Covered Parking Space(s). All the above
mentioned charges were to be deposited by the Applicant to the Company
in addition to the total price as mentioned in the Application Form.
Besides the above charges, there were  other fee/charges which were
not included in the total price and even categories/nature of such
charges/fee were mentioned in the Application Form. It may be
mentioned here that in addition to above, it had also been mentioned
in the Application Form that the total price does not include any
other charges that may be payable by the applicant as per the
Apartment Buyers Agreement on demand by the Company. Furthermore, the
Application Form envisages that the Final Allotment could be made
within a period of one year from the date of the application, during
which period the Complainant would have an option to take refund of
booking amount by serving a 30 days demand notice upon the Company. It
is evident that the Complainant, being an Applicant, of the
Application Form, solely executed by him, had clearly understood the
terms and conditions mentioned in the Application Form. It had been
clearly understood that besides Basic Sale Price, there were other
charges, which were required to be paid including EDC, IDC, Club
Membership Charges, Parking Facing PLC, Road/Corner facing PLC, EEC,
FFC, Power Backup Charges and Covered Car Parking Charges. Having
clearly understood and having made the booking of the Unit/Apartment
on that basis, the Complainant cannot agitate and/or canvass that
there is alleged deficiency in service in claiming such charges in the
Apartment Buyers Agreement. This is without prejudice to the
submission that in any event, seeking  direction to refrain the
respondent  for asking such charges, is illegal and without
jurisdiction.  Further, it is a matter of record, as is even evident
from the perusal of the Complaint that no deviation has been made from
the understanding laid down in the Application Form, which inter alia,
categorically provided that there would be charge:, in addition to the
Basic Sale Price. It may further be mentioned here that it cannot be
application form of the Application Form, as has been alleged. Since
it has been categorically provided that the total price does not
include such other charges, as mentioned in the Application Form and
does not include even those charges that may be payable as per the
Allotment Buyers Agreement on demand by the Company, the charges, as
mentioned in the Apartment Buyers Agreement are legal and tenable. On
that score also, neither it could be said nor it has been shown that
there exists any deficiency in service.



9. That the Complainant has taken erroneous and misconceived pleas and
even given wrong projection of facts. The Complainant, while raising
challenge to the demand of Floor PLC and Corner facing PLC, has
suggested that the same could be charged only if the Complainant had
asked for a Floor PLC. In the humble submission of the Respondent, the
said plea is misconceived and erroneous even to the knowledge of the
Complainant. Floor PLC and Corner facing PLC are the charges attached
to the Unit/Apartment and are charged  according to the location of
the Unit/Apartment, which is either Floors PLC or corner facing or
even both. It is not for the Applicant to opt or not to opt for the
same. If the flat, which is allotted, is designated to be a Floor PLC
or corner facing or both, then corresponding charges are applicable on
such flat/apartment.

      At this juncture, it is relevant to point out that the
complainant along with other family members have booked 4 flats in all
with the opposite party being ECP No.821, 822 and 1044 and the
Complainant's ECP no. being 259. Although there was no reason and/or
occasion to give choice in relation to the 4 flats, which had been
booked, yet keeping in view the fact that all the bookings and/or
dealings were being made by Sh. Ashok Manchanda, the then Additional
Forumer of Income Tax, on behalf of all the 4 Complainants, amble
choices were given to choose the flat(s)/ Apartment (s), which could
be made available at that point in time when all the 4 bookings had
been made. After having booked 4 flats, Sh. Ashok Manchanda had
desired that they be allotted adjoining flats on the same floor.
However, at that point in time, it had been made clear that it was not
possible to allot 4 adjoining flats. Although 4 adjoining flats could
not be allotted, yet the Respondent, keeping in view the status and
position of Sh. Ashok Manchanda, with which the Respondent was being
confronted time and again, allotted adjoining flats against ECP No.
822 and 1044 being Unit No.A-1002 and A-1102 and that too on the 11th
and 10th Floor in such a manner that flat of the Sh. Ashok Kapur is
located exactly above the flat of the Ankur Manchanda. Further, the
Complainant in the above captioned Complainant and Geetika, who was
having ECP no. 821, were allotted flats on same floor. It is submitted
that the opposite party has gone out of way to accommodate and accede
to the request as far as possible, of Sh. Ashok Manchanda and/or the
Complainants.

      Accordingly, a provisional allotment letter was issued on April
13, 2012, whereby it had been informed that Apartment bearing Unit
No.102 in Tower 'B' on 1st Floor tentatively having 1835 sq. feet (3
BHK) in 'Earth Copia', Sector 112, Gurgaon, has been allotted in
accordance with the terms and conditions of booking Application Form.
It was also mentioned that the Applicant shall abide by the terms and
conditions of the proposed Apartment Buyers Agreement, to be signed by
him. The said Allotment letter was required to be signed by the
applicant. Evidently, the location of the flat allotted to the
Complainant, is a Corner PLC and Floor, which fact has been to the
knowledge of the Complainant. It may not be out of place to mention
here that the Flat/Apartment located in Tower B of the Complex are
Park facing, Road and Corner. Accordingly, Floor PLC and Corner facing
PLC were applicable to the said Apartment, which charges were in
addition to the Basic Sale Price, as has been mentioned in the
Application Form. The same are accordingly payable by the Complainant.
It is submitted it was only after the complainant indicated his
preference and. choice for a particular flat that a flat bearing unit
No. B-102 was allotted to the complainant at the time when the said
flat was allotted to the complainant, he cannot said to be oblivious
of the corresponding charges  attached to the said flat,  It is
submitted that even after coming to know of the charges attached to
flat in question the complainant never raise any objections or
indicated for allotment of alternative flat.  The said facts were also
brought to the notice  of the complainant by the opposite parties by
the e-mail dated 18.12.2012 annexed as Annexure C-1 in the present
complaint.

      It may be mentioned here that demand for floor PLC and even
corner facing PLC for such apartments, have been made from the
respective prospective applicants and have even being paid by most of
them. Copy of few such demand letters and the receipt acknowledging
the demand there of are collectively annexed hereto as Annexure R/2.
As such , the complainant, who cannot be said to be oblivious of the
said fact that such charges are charged even from the similarly placed
persons, cannot allege deficiency in service against him on account
thereof.  This is more so when he himself was aware that such charges
would be charged from him in addition to the Basic Sale Price.



10. That the Complainant has further sought to raise a grouse in
relation to the rates at which Floor PLC and Corner Facing PLC are
being asked for, which in humble submission of the Respondent cannot
be agitated. Besides the submission that the Complex/ Project being
developed by the Respondent is a privately developed project and the
transaction between the parities is purely a commercial transaction
and the respondent is free to sell the apartment at a rate / cost at
which it deem it appropriate, it is submitted that the complainant can
not have grievances over the rate especially when he had been made
aware of such rates at the time of booking.   The entire complaint
seems to be camouflage and an attempt to evade making all the
requisite payments, failure of which  entitles to respondent   to
forfeit the amount already paid by the complainant.



11.  That the complainant for extraneous reasons and with a view to
avoid paying installments due and payable to the opposite party , have
started raising false and frivolous issues.  All the 4 complaints are
similar in nature and have been evidently filed in order to wriggle
out from the obligation to pay the cost of the apartment at the price
which had been volunteered by the complainant  had started delaying
its payment as and when they had fallen due.  It appears that the
complainant since could not make deposits of the requisite amounts, as
and when they had fallen due, started raising alleged dispute , which
has not basis at all.  The respondent is annexing hereto as Annexure
R/3 , a copy of the chart showing the dates when the requisite
payments were to be made and the delay caused kin making such payment.
Besides making delayed payments, the complainant has not even made
entire payment, as was required to be made. On this score also the
complaint is misconceived and no indulgence is liable to be shown to
the complainant.





17. That further, the complainant in the present complaint has alleged
that levy of various PLC/Charges were allegedly not mentioned in the
application, though have been sought to be charged at the time of
issuance of Allotment  Letter and/ or Apartment Buyer’s Agreement.  It
is submitted that at the time of submission of the application form,
it was clearly stipulated therein that the Total Price does not
include any other charges that may be payable by the applicant(s) as
per the Apartment Buyer’s Agreement/ Allotment letter on demand
payable by the company.  It is pertinent to mention that it was
clearly stipulated in the  application form that the price indicated
in the Application form are subject to revision from time to time at
the sole discretion of the company. Further it was clearly indicated
conditions stated in the Application Form are moiety indicative with a
view to acquaint the applicant and are not exhaustive It was further
mentioned that that for detailed terms and conditions, the applicant
should refer to the Final Application Form and Apartment Buyer's
Agreement/Allotment letter, standard formal whereof was shown to the
complainant at the time of booking and the complainant never raised
any protest It is submitted that the Application Form was signed and
executed by the applicant after reading all the terms and conditions
stipulated therein and without any protest In that view of the manes 4
is not open to the applicant to wriggle out of the contractual
obligations besides the terms and conditions of the Application Form.

21. That in the present complaint, the complainant has not been able
to point deficiency in services offered by the Opposite Parties or
defect in the goods offered by the opposite parties, As a matter of
fact the same has not even pleaded by the Opposite Parties in their
complaint which goes on to show that the present complaint has been
filed merely to harass the opposite parties so as to extort a good
bargain for the flat booked by the Complainant with the Opposite Party



   20.   The Ops have contested the complaints on merits and have
reiterated the stand taken by way of preliminary objections as
reproduced above. They have claimed that the complainants had not
approached this forum with clean hands and the complaints are liable
to be dismissed with heavy costs. They have prayed accordingly.



    21.       We have heard arguments advanced at the bar and have
perused the record.

     22.      Learned counsel appearing on behalf of the complainants
has drawn our attention to a public notice issued by the Department of
Town and Country planning, Govt of Haryana, cautioning  the public in
general about some colonizers resorting  to unfair trade practices in
issuing advertisements inviting investment in their projects without
having obtained the requisite license from the department in this
regard. For the purpose of convenience, we reproduce the public notice
which inter-alia reads as under:



'PUBLIC NOTICE FOR THE INFORMATION OF PERSONS INTENDING TO BUY PLOT/
FLAT IN PRIVATE LICENCED COLONIES OF HARYANA’

“The Department had earlier issued notices to caution both the general
public as well as the persons/companies/property dealers engaged in
development/booking/sale of plots/flats in the private licenced
colonies of Haryana refraining them from sale/purchase/bookings in
such projects for which licence has not been issued by the State
Government. In this regard, a Public Notice had also been issued in
several national dailies in the month of April 2011 informing the
public that they should ascertain the complete details regarding
licence granted to such colony before the purchase of plots/ flats/
office space/ shops etc.

    2.    It has, however, been noticed that some of the colonisers
still issue advertisements inviting the gullible public to invest in a
project even before the grant of licence to set up the colony
resulting into misleading and defrauding the general public. While
action against such unscrupulous elements is taken by the Department,
the general public is hereby cautioned not to be allured by such
advertisements and refrain from investing money in such projects for
which licence has not been issued by the State Government.

    3.    In this regard, it is also informed that plots/flats for
residential, commercial, institutional and industrial use etc. within
the controlled areas and urbanise limit as declared under the Punjab
Scheduled Roads and Controlled Areas Restriction of Unregulated
Development Act, 1963 and Haryana Development and Regulations of Urban
Areas Rules, 1976 respectively; can be sold only after obtaining a
license from the Department of Town and Country Planning, Haryana. The
sale/pre-launch of plots without a license is illegal and there is no
guarantee of any such project ever taking-off. In this regard the
provision of Section 7 of the Haryana Development and Regulations
of-Urban Areas Act, 1975, is also reproduced below for reference:

Section 7: Prohibition to advertise and transfer plots. No person
including a property dealer

shall:-

(i)    without obtaining a license under section 3, transfer or agree
to transfer in any manner plots in a colony or make an advertisement
or receive any amount in respect thereof;

(ii)    erect or re-erect any building in any colony in respect of
which a license under section 3, has not been granted.

(iii)    erect or re-erect any building other than for the purpose of
agriculture on the land sub-divided for agriculture as defined in
clause (aa) of section 2 of this Act.

    4.    Some unscrupulous persons and companies may indulge in
illegal activities of pre-launch of plots without obtaining a license
for development of such colonies. Therefore, general public is advised
to contact and verify whether license has been granted by the Director
General, Town and Country Planning Department, Haryana before booking
of plots/ dwelling units/commercial property to avoid any legal
problems and financial implications. Details of contact persons and
their e-mail ids can be seen at Department's website:
tcpharyana.gov.in”



23.   Our attention has then been drawn to the terms and conditions
accompanying the application for allotment of apartments in “Earth
Copia“. Sector 12 Gurgaon (Haryana), Clause (3) of which reads as
under:

TERMS AND CONDITIONS FORMING A PART OF THIS APPLICATION FOR ALLOTMENT
OF ANAPARTMENT IN "EARTH COPIA", SECTOR. ".12, GURGAON,(HARYANA).

1-2 XXXX                  XXXX             XXXX XXXX

3. The Company plans to develop the Land and construct the Group
Housing Colony which shall inter-alia comprise of buildings containing
residential apartments with suitable infrastructural facilities
(hereinafter collectively referred to as "Towers") in accordance with
License bearing number 35 of 2011 dated 25-04-2011 accorded by
Director General, Town and Country Planning ("DGTCP") for the
development of a Group Housing Colony and building plan approved by
the DGTCP vide Memo No. ZP-720/JD (BS)/2011/20/08 on 29-12-2011.



24.    It is contended that as per the above clause, OP had obtained
the required license on 25-4-2011 and the approval of the plans on
29-11-2011.  It has been pointed out that the bookings were done in at
least two cases in January, 2011 which is clearly in violation of
Section 7 of the Haryana Development and Regulations of Urban Areas
Act, 1975 and the rules made thereunder.

  25.     We are in agreement with the complainants and we are
inclined to hold that the OP was guilty of an unfair trade practice.
It ought not to have booked and accepted money towards  the project in
question  without first obtaining the requisite license from the
concerned authority.

  26.   The learned counsel for the complainant has then taken us
through the application form Ex C/1 and in particular to the following
clause:

in the event of the Company agreeing to provisionally allot the said
Apartment, I/We agree to pay installments of Total Price (hereinafter
defined) and all other dues as stipulated in this Application and as
may be intimated by the Company from time to time and in the manner
set out in the payment plan opted by me/us which shall form part of
the agreement (Apartment Buyers Agreement/Allotment) Letter) that
shall be executed by me/us and the Company on the Company's standard
format.



27.    It has been pointed out that  after the bookings, it was
incumbent on the OP to have provisionally allotted flats to the
complainants before seeking any further payment as per the agreed
payment plan.  It has been further pointed out that the OP without
making  any allotment in favour of the complainants raised another
demand equivalent to 15% of the BSP and threatened to cancel the
allotment in case of non-payment. Letter dated  Ex C3/45 (Poonam
Manchanda  V/s Earth Infrastructure Pvt. Ltd.) was addressed by the OP
in this regard and it inter-alia reads as under:-





          XXXX                            XXXX                  XXXX
               XXX

Please be kind enough and very kindly ensure, the outstanding amount
of the first installment of fifteen percent, is paid immediately but
in any case on or before 25th June 2011. Please ensure that by 25th
June 11 you should have paid 25'0 of Basic Cost (10% of Booking Amount
+ 15% installment) of you flat.



XXXX                  XXXX                            XXXX    XXX





You may also please ensure the payment is made within time  to avoid
cancellation of the booking. The cheque/ DD must be made favoring
“Earth Infrastructure Limited “ payable at New Delhi.



28.     Admittedly allotment letters were issued to the complainants
in April 2012 i.e. after a period of about a year.  A bare reading of
the clause reproduced above in the application form makes it amply
clear that   the demand raised vide letter dated  9/6/2011 was illegal
and unwarranted.  The complainants were made to pay this installment
of 15 % of the BSP under the pain   of cancellation of booking  which
was in contradiction to  the terms agreed to between the parties.  The
OP was, therefore, guilty of deficiency in service towards the
complainant.

29.       Not only  this, it has been next pointed  out that the Op
had promised loan facility to the allottees after payment of 25 % of
the BSP.In this regard, the OP had written letter dated 18-6-2011
which inter-alia reads:

 This is to inform you that M/s Earth Infrastructure Ltd. will provide
Loan facility to its clients of “Earth Copia” after the completion of
25% of payment, if required.

Sd/-

Authorised Signatory





30.     The OP had   initially disowned the above letter and had
claimed it  to be forged. However, during the course of arguments,
the original of Ex. C3/46 was shown to the learned counsel for the OP
who conceded that it had originated from  OP’s office.  The learned
counsel for the complainants has taken us through the correspondence
which  the complainants had with the OP particularly with the offer of
the loan facility. He has contended that no such facility was offered
by the OP despite the promise and further that banks had refused to
offer loan on the plea that the OP project was not credible. The
complainants had further written to the OP that they  be supplied with
copies of documents such as the title of land, approved plans etc so
that they may apply for the loan to their own bankers. It has been
pointed out that despite writing so many letters ,the OP had  failed
to provide documents which  would have facilitated the grant of loan
to the complainants.  This is alleged to be another case of deficiency
on the part of the OP.  We have gone through the letters written by
the complainants to the OP. The complainants had informed the op that
banks viz. i.e. Yes Bank, Deutsch Bank, Fbf Home Finance Etc had
refused to entertain  applications for grant of  loan on the
credibility issue of the project in question  whereas complainants
were not able to obtain loan from  their own banker because of the
failure of the OP to supply necessary documents.

31.      On its part, no explanation has been furnished by the OP for
its failure to provide loan facility as was promised vide letter dated
18-6-2011.  The fact that OP did not help at all in this regard is
evident because the OP had disowned the offer itself and had claimed
the letter dated 18-6-2011 to be forged.   But  be that as it may,
what was the reluctance to supply copies of documents to the
complainants so that they may obtain  loan from outside. No
explanation is forthcoming from the OP in this behalf. We are,
therefore, inclined to hold that the OP backed out of its promise to
provide its services   so that loan facility is made available to the
allottees. Above all, its failure to supply copies of documents of
title, approved plans etc which it was bound to supply amounts to
deficiency in service on its part.

32.    Now we come to the additional charges sought to be levied on
the complainants which have been disputed to by them.  The Apartment-
Buyers Agreement (ABA) which the complainants were asked to execute is
dated 24.5.2012. Immediately on receipt of this document , the
complainants had in their  repeated letters called upon the OP to
revisit the ABA and to delete some levies and to correct some of them
in line with the  terms mentioned in the application form EXC-1. The
letters written by the complainants were initially not responded to
and, later on, the OP took up a stand that the levies were in
accordance with the ones  agreed  to between the parties and that
there were no issues which were required to be resolved. In the
process, the OP took a rigid stand and did not correct its mistakes
which were so apparent. We now take up the issues of additional levies
raised by the complainants.

33.   Interest Bearing Maintenance Security

         There is a dispute between the parties as regards the form of
maintenance security which the complainants are bound to pay. As per
the complainants it was agreed that the maintenance security shall
bear interest  which will be payable to them.  This is disputed to by
the OP who claims that the maintenance security is interest free. The
complainants drew our attention to application Form Ex. C-1  wherein
it has been clearly mentioned that the maintenance security was
interest bearing and not interest free.   Asked to substantiate its
claim to the contrary , the learned counsel for the OP stated that it
was a typographical mistake as  words “interest bearing” in the
application form  Ex. C/1 should have been typed out as “interest
free” .   He claimed that the error has been corrected in the ABA.
Let us then examine the application form Ex. C/1 which has been
carefully perused by us.   There is a note on page 2 of this form
which inter-alia reads :

(i)          Total price does not include interest bearing maintenance
security (IBMS)  @ Rs 100/- per sq. ft. of the super area.XXX XXXX
XXX  XXX  XXX XXX  XXX  XXX

(ii)         XXXX   XXX        XXX  XXX  XXX  XXX  XXX

(iii)       XXXX   XXX         XXX  XXX  XXX  XXX  XXX

(iv)        The total price does not include the maintenance charges /
property tax, municipal tax , service tax , wealth tax, govt. rates,
tax on land, compensation to the farmers (if any) , fees or levies of
all or any kind but whatever name called. Interest bearing maintenance
 Security (IBMS) will be decided at the time of offer of possession. .

(v)        XXXX   XXX         XXX  XXX  XXX

(vi)       XXXX   XXX         XXX  XXX  XXX









34.         On page 3 of the application form Ex. C-1  under the head
  “Price List of Earth  Copia , Gurgaon” there is a stipulation that
interest bearing maintenance security will be charged @ Rs 100/- per
sq. ft. Again on the same page under the heads “ Down Payment Plan”
and “Construction linked payment plan “ there is a stipulation that
Interest Bearing Maintenance Security i.e. IBMS is payable at the time
of offer of possession.   There is another note at page 4 of the
applicant form Ex. C-1  with the following stipulations:-

1-5. XXXX   XXX  XXX  XXX  XXX  XXX  XXX

6. The yearly simple interest payable on IBMS shall be determined by
the company as per the applicable  rates on fixed deposits accepted by
the State Bank of India at the close of each financial year on 31st
March.

7-15. XXXX   XXX          XXX  XXX  XXX  XXX  XXX



35.                It is, therefore, clear that the application form
Ex. C/1 clearly stipulates that maintenance security will earn
interest in favour of the allottees. Not only this, the terms /
conditions of the application form Ex. C-1  also provides the formula
for determining the rate of interest to which the allottees will be
entitled to on the maintenance security.   The stand taken by the OP
that the maintenance security was interest free is , therefore,
indefensible.    The unilateral change of this condition in the ABA
was ,therefore, unjustified and untenable .  It appears to  us that
the  OP in a  most brazen manner had refused to see reason and adopt
the corrective measure  despite being told several times  to do so by
the complainants..

  36.           Accordingly we hold that the maintenance security
sought to be levied on the allottees was not interest free and would
earn interest as provided for  in the terms and conditions of the
application form Ex. C-1.



37.  Preferential  Location Charges

               Multiple Preferential location charges are sought to be
 levied on the complainants. Firstly,  Floor Preferential location
charges are sought to be levied   in accordance with the location of
the flats on the particular floor.  Secondly, Road/ corner facing
preferen tial charges are sought to be levied in accordance as the
flat is facing a road or a corner.   There is another additional
charge sought to be levied under the head  ‘Natural water facing PLC”.
     As per the complainants, these PLCs are optional and cannot be
made applicable compulsorily .  It is the case of the complainants
that they had neither  been asked nor  had exercised any option for a
particular floor flat and it was the OP who had allotted the flats on
particular floors to them.  It is contended that when no option as
regards particular floor flat was exercised by the complainants , the
levy on account of the floor location preferential charges is illegal
and unwarranted.

38.         The learned counsel for the OP on the other hand has taken
refuge behind the  terms and conditions of the application  form Ex
C-1 and has contended that it was specifically agreed to between the
parties that  this levy in respect of  Floor  Preferential  Location
Charges was applicable additionally. Attention has been drawn to Page
3 of the Application Form Ex. C-1 , which is reproduced as under:



FLOOR PREFERENTIAL LOCATION CHARGES

01st & 02nd Floor
             175/- per sq. ft.

03rd & 04th Floor
              150/- per sq. ft.

05th & 06th Floor
              125/- per sq. ft.

07th  & 08 th Floor
              100/- per sq. ft.

09th & 10th Floor
              75/-  per sq. ft.

11th to 15th Floor
              50/- per sq. ft.

16th & 17th Floor
              75/- per sq. ft.

18th & 19th  Floor
             100/- per sq. ft



 39.      We have considered the contentions of the learned counsel
for the parties. The question for our consideration is as to whether
this levy can be imposed on the allottees and has been agreed to as
such or is optional.  Normally speaking the cost of the flat includes
the Basic Sale Price , the external Development Charges and the
Infrastructure Development Charges.   All other charges are in the
form of facilities to be provided by the builder which are generally
optional in nature. To determine the question posed before us , we
have to consider the meaning of word “Preference or Preferential.  The
ordinary dictionary meaning of the word  “Preference “ is  :-

1.    Choice of

2.    Liking for

                                                  3.  One thing rather
than another



The “Oxford” Dictionary gives the meaning of word “preference “ as :

1.    A great liking for one alternative over another and others.

2.    A thing preferred

3.    Favor shown to one person or thing over another and others.



   The “Oxford” Dictionary gives the following meaning to the word “
Preferential”

1.    Of or involving preference or partiality; constituting a favour
or privilege.



   40.         Keeping in view the meaning given to the word
“preference or preferential “ as reproduced above , it is clear that
it involves a liking or a choice or a favour shown to one against
others.   In other words , it will involve the option of the person
(in this case the allottee) to have a thing of his   own choice or of
his own linking e.g. if an allottee insists that  he wants to have a
flat on a particular floor only , the OP may impose an additional
charge for the same.    In the case in hand , however, the allotment
of the flats did not involve  any option of the allottees  The
allotment letter received by the complainants make it amply clear
that the allotment was made by the OP without the allottees having any
choice or option in the same.   Strangely enough floor location
preferential charges are sought to be levied on all the flats across
the board even though at different rates.   In our considered opinion
these charges cannot be levied across the board and can be levied
selectively and only on exercise of an option by the allottees.

41.       For the same reasons, we are inclined to hold that the
corner / road facing PLC and the Natural Water Facing PLC are optional
in nature as they do not involve any choice of the allottee to seek a
preferred location. The learned counsel for the complainants has also
brought to our knowledge that  the flats on which this levy is sought
to be imposed are constructed in a manner that they are either corner
flats or are road facing.  There is no case of a preferred Location
viz. a viz. the others.

42.       We have one more reason to come to the above conclusion. A
bare perusal of the application form Ex. C-1 nowhere states that the
Preferential Location Charges are compulsory. Any person booking a
flat with the OP on a reading of the application Form Ex. C-1 may
assume that this is an optional levy.

43.   In a number of cases, Courts have held that if there is any
ambiguity with regard to the clauses in a contract and where two
interpretations are reasonably possible,  one which favours the
consumer has to be accepted.  In case of ambiguity or doubt in terms
of the contract it should be interpreted in favour of the consumer and
against the company.  In the case of Skandia Insurance Co. Ltd. Vs.
Kokilaben Chandravadan, 1(1987) ACC 413 (SC) (1987) 2 SCC 654, the
Hon’ble Supreme Court held as under:-

 “…. When the option is between opting for a view which will relieve
the distress and misery of the victims of accidents or their
dependants on the one hand and the equally plausible view which will
reduce the profitability of the insurer in regard to the occupational
hazard undertaken by him by way of business activity, there is hardly
any choice. The Court cannot but opt for the former view. Even if one
were to make a strictly doctrinaire approach, the very same conclusion
would emerge in obeisance to the doctrine of ‘reading down’ the
exclusion clause in the light of the ‘main purpose’ of the provision
so that the ‘exclusion clause’ does not cross swords with the main
purpose’ highlighted earlier. The effort must be to harmonize the two
instead of allowing the exclusion clause to snipe successfully at the
main purpose”.

44.       In view of the discussion above, we are inclined to hold
that the Preferential Location Charges sought to be levied on the
complainants  are illegal and unwarranted.    The OP is directed to
amend the” ABA” after deleting the aforesaid three PLCs.







45.      CLUB MEMBERSHIP

        The applicant form EX C-1 stipulates that Club Membership will
cost a sum of Rs. 1,00,000/- to the allottees. The question again
which arises for our consideration is as to whether the Club
Membership is compulsory or optional. It is contended on behalf of the
OP that a Club is being created inside the residential premises for
the benefit of the residents and the membership is compulsory.  The
learned counsel for the complainants has , however strongly contended
that these charges cannot be imposed upon the complainants. He has
contended that an allottee may or may not choose to be a member of the
club and the membership cannot be thrust upon him.   The learned
counsel has further pointed out that  the OP in a clandestine manner
is trying to recover the cost of the building where the club will be
housed and is intending to charge separate fee for membership. Our
attention has been invited to Para 45 of the affidavit  filed by Sh.
Gulshan Aggarwal, the Authorised Representative of the OP in this
regard  which reads as under:



45. That deponent state that the Club Charges are being recovered from
the complainant as proportionate cost of building infrastructure,
building etc. for the club. Whereas, Member ship fee , refundable club
security deposit is payable by the complainant on account of
maintenance , upkeep, personnel deployed and other day to day
expenses. The complainant is trying to mix both the charges so as to
confuse this Hon’ble Forum. These charges are levied  on account of
facilities and other amenities provided to the complainants of the
complex. Further, these charges will not be paid to the opposite party
but to the maintenaince agency who shall execute a separate agreement
with the complainant. That as regards security deposit is concerned;
the same is refundable security deposit.  It is submitted by raising
the alleged issues, the complainant has lost sight of the fact that
the club is built for exclusive use of the inhabitants of the complex
where no outsiders are permitted and therefore , the same shall entail
some cost to the applicant.  At the time of submission of the
Application Form it was clearly stipulated thereto that the Total
Price does not include any other charges that may be payable by the
applicant (s)   as per the Apartment Buyers Agreement / Allotment
letter on demand payable by the company .  It was further mentioned
that for detailed terms and conditions, the applicant should refer to
the Final Application Form and Apartment Buyers Agreement/  Allotment
letter, standard format whereof was shown to the complainant at the
time of booking and the complainant never raised any protest.



46.       A perusal of the aforesaid Para in the affidavit filed on
behalf of the OP shows that a sum of Rs. 1,00,000/- is being charged
from the complainants on account of the proportionate cost of the
building / infrastructure housing the club.   It further shows that
the Op is intending to charge membership fee and refundable club
security deposit extra. In our opinion ,  the stand taken by OP  is
not sustainable and has to be struck down.   The OP cannot charge the
sum of Rs. 1,00,000/- as proportionate cost of the building
infrastructure.. The applicant form Ex. C-1 describes this charge as
Club Membership meaning thereby that it is a onetime fee for becoming
a member of the club which the OP is setting up in the complex.    The
OP is trying to convert this charge into the proportionate cost for
the building where the club will be housed. This is unwarranted and
cannot be allowed.  We , therefore,  hold that the complainants can
not be made to pay club membership at the rate of Rs. 1,00,000/- per
allottee.

47.    We may also clarify that membership of a club   is always
optional and cannot be thrust  upon the residents. The  OP ,
therefore, cannot force the residents to become members of the Club
and to pay Membership Fee and other Charges for the running and upkeep
of the club.   The OP is directed  to revisit the ABA and to delete
the aforesaid charges in accordance with our directions.

48. Covered Car Parking Charges

            The OP is trying to charge a sum of Rs 3,00,000/- on
account of covered car parking charges. The learned counsel for the
complainant has contended that  the law mandates that the builder will
provide a covered car parking under the stilt for which no extra
charge can be levied.   He has contended that this has been so held by
the Hon’ble Supreme Court in the case of Nahal Chand  Laloo Chand Pvt
Ltd V/s Panchali Cooperative Housing Society Ltd (Civil Appeal No.
2544 of 2010) .  The learned counsel for the OP has also relied upon
this judgment and has contended that the builder has a right to charge
extra for the stilt parking space.   We have gone through this
judgment which was passed by the Hon’ble Supreme Court with reference
to the provisions contained in Maharashtra Ownership Flats  (
Regulation of the promotion of Construction, Sale, Management and
transfer. ) Act 1963 and Maharashtra Ownership Flats ( Regulation of
the promotion of construction, etc .) Rules 1964. The Hon’ble Court
has observed as under:-

We have, however, held in our discussion above that open to the Sky
Parking Area or Stilted Portion usable as Parking Space is not garage
within the meaning of Section 2 (a-1) and, therefore, not salable
independently as a flat  or along with a flat.    As a matter of fact,
in so far as the promoter is concerned, he is not put to any prejudice
financially by treating open parking space / stilt parking space as
part of common areas. Since he is entitled to charge price for the
common areas and the facilities from each flat purchaser in proportion
to the Carpet Area of the Flat.  MOFA  mandates the promoter to
describe common areas and facilities in the advertisements as well as
the agreement with the flat purchaser and the promoter is also
required to indicate the price of the flat including the proportionate
price of the common areas as facilities.  If a promoter does not fully
disclose the common areas and facilities he does so at his own peril.
Stilt parking spaces would not cease to be part of common areas and
facilities merely because the promoter has not described the same as
such in the advertisement and agreement with the flat purchaser.

The court further observed that ;

 As a necessary corollary to the answers given by us to the Question
Nos (i) to (iii), it must be held that stilt parking space being part
of common areas of the building developed by the promoter the only
right the promoter has , is to charge the cost thereof in proportion
to the carpet area of the flat from each flat purchaser. Such stilt
parking space being neither flat under section 2 (a-1)  nor garage
within the meaning of that provision is not saleable at all.

49. As already stated the aforesaid judgment was given by the Hon’ble
Court, keeping in view the particular provisions of the Maharashtra
Ownership  Flats Act, 1963 and the rules made there under.   In the
cases in hand as well it appears to us that  the Stilt area is a part
of the Common Areas and the OP cannot charge the allottees extra for
the same.  We, therefore, direct the OP to revisit the ABA and delete
the extra charge on account of covered car parking charges.

50. External  Electrification Charges  and Fire Fighting Charges

   The application form Ex. C-1 stipulates that External
Electrification Charges  and Fire Fighting Charges will be charged @
Rs 100/- per Sq.ft.  The learned counsel for the complainants has
pointed out that in the ABA this charge has been shown only for
External  Electrification Charges .  He has contended that the
complainants apprehend that later on the OP might fix an additional
charge on account of  Fire Fighting . The learned counsel for the OP
has fairly conceded that the two charges i.e. External
Electrification Charges  and Fire Fighting have to be charged @ Rs.
100/- Sq. Ft. and the ABA needs to be corrected accordingly.   We,
therefore, direct the OP to amend the ABA and incorporate that the
charges for External  Electrification   and Fire Fighting  will be @
Rs 100/- per sq. ft. and no extra charge will be levied on account of
fire fighting.



51.   Power Backup Charges

              The Application form Ex C-1 stipulates that power back
up charges will be @ Rs 20000/- per KVA.  It also stipulates that each
apartment would be provided with a minimal power backup of 5 KVA. On
behalf of the complainants, it is contended that the charge is on a
higher side.  It is also contended that the allottees may not be
forced   to    have a minimum power backup of 5 KVA. We, however, are
not able to agree with the contention of the complainants in this
regard as it was specifically agreed to  in the terms and conditions
that a minimum power backup of 5 KVA will be provided to each
apartment @ Rs 20,000/- per KVA.  The complainants having agreed to
these  terms   cannot now back out from the same.



52.   Electric Connection Charges

              A sum of Rs. 1,00,000/- is sought to be charged by the
OP on account of electricity connection charges. This was not
mentioned in the Application Form Ex. C-1  or in the price list
attached to the same.   The   OP is already charging a sum of Rs.
1,00,000/- as external electrification charges and  fire fighting
charges. The OP  is also charging for external development as well as
infrastructure internal development in the complex.  Therefore, this
charge which is not listed in the application form Ex. C-1 is
unwarranted and untenable.  We, therefore, direct the OP to revisit
the ABA and delete the extra charge on account of Electric Connection
Charges.



53.   External Development Charges and Infrastructure Development Charges.

              It is claimed by the complainants that these charges are
also on a higher side. However, since the claimants are already agreed
to the payment of these charges at the rates quoted by the OP,  we
hold that the complainants are liable to pay at the agreed rate.

54.                 It has been contended on behalf of the
complainants that they have asked the OP a number of times to provide
them with the details of the common areas which have been included in
order to form the super area  of the flats on which the OP had
computed the basic sale price of the allotted flats. OP was obliged to
give the details to the complainants and satisfy them that they have
been charged for the correct super area and no extra charge has been
levied on them.  No such details have been filed on record. The common
areas included in the super area must be clearly specified to rule out
any confusion in future.   We , therefore,  direct the OP that before
insisting on the execution of the ABA ,  they would inform the
complainants the details of the carpet area as well as the common
areas  for which they have been charged.

 55.        Our attention has also been drawn to clause 1.19 of the
ABA which the complainants have been asked to execute. The clause
reads as under;-

1.19 i)XXXX                     XXXX             XXXX             XXXX     XXXX

XXXX                       XXXX             XXXX             XXXX     XXXX

ii) The Allottee understands that the Allottee has not made any
payment to the Company in any manner whatsoever with respect to any
lands, buildings, common areas, facilities and amenities falling
outside the Foot Print of the Said Building save and except the use of
general common areas (for the purpose of direct exit to a nearest
public street, nearest road only) to be identified by the Company in
its sole discretion and the Allottee hereby agrees that the Company
has not indicated/ promised/represented/given any impression of any
kind in an explicit or implicit manner whatsoever, that the Allottee
shall have any right, title or interest of any kind whatsoever
therein. The Allottee further agrees that any such identification with
respect to general common areas by the Company in its plans now or in
future shall be final, conclusive and binding on the Allottee. Further
the Company has made clear to the Allottee that it (the Company or any
of its affiliates, group companies) shall be carrying out extensive
developmental / construction activities now and for many accedes in
suture in the entire area falling outside the Foot Print of the Said
Building and that the Allottee shall not have a right to raise any
objection or make any claims or not to make payments In time as
stipulated In schedule of payments in Annexure C on account of
inconvenience, if any, which may alleged to have been caused to the
Allottee due to such developmental/construction activities or
activities incidental/related to it. It is made clear by the Company
and agreed by the Allottee that all rights including the rights of
ownership of land(s), facilities and amenities (other than those
within the Said Building and the Foot Print thereof) shall vest solely
with the Company, its associate companies, its subsidiary companies
who shall alone have the sole and absolute authority to deal in any
manner with such land(s), facilities and amenities. This clause shall
survive throughout the ownership of the Said Apartment by the
Allottee, his / her legal representatives, successors, administrators,
executors, assigns etc,



56.              A bare perusal of the above clause makes it amply
clear that the OP has reserved to itself the rights to develop all
areas except the tower and the road leading outside meaning thereby
that on a later date, the OP has the right to make constructions on
the parks and the other common areas/vacant spaces established by it
in this project . In other words, the op has reserved a right to
develop the open spaces and convert it into concrete jungle and
sacrifice aesthetics. This is unfair and cannot be allowed. A person
intending to buy a residential flat apart  from considering the cost
of the same also takes into consideration the aesthetics available
there. These cannot be allowed to be altered without the consent of
the residents. The OP is, therefore, directed to revisit the clause
and bring it in conformity with the agreed terms.

    57.               We have already noted during our discussion that
the complaints had raised  issues of additional levies  with the OP
immediately after the receipt of the ABA. They had brought to the
notice of the OP the inconsistencies in the ABA viz a viz the terms
and condition of the application form Ex C-1. We have found that the
issues raised by the complainants were genuine and not imaginary. We
have directed the OP to revisit the ABA and to rectify the terms
incorporated therein. Since the OP had refused to listen and rectify
its mistakes. The complainants were, therefore,  justified in refusing
to make any further payments towards the cost of the flats till their
grievances had been removed.

58.          In the facts and circumstances of the case we are
constrained to hold that the OP was not only guilty of deficiency in
service, it had also resorted to an unfair trade practice. We,
therefore, direct the OP as under:

In Complaint Case No. 53/15 Poonam Manchanda V/s Earth Infrastructure

1.    To revisit the ABA and bring it in conformity with our
observations made above . The OP shall supply the new ABA to the
complainant and will give her 10 days time to raise objections if any.
The OP shall respond to the objections if any raised by the
complainant within a period of 15 days of its receipt.

2.    Not to charge any interest on the complainant for the  delay in
payment of the due installments as per the payment plan.

3.    Pay to the complainant a sum of Rs. 1,00,000/- as compensation
for pain and agony suffered by her.









In Complaint Case No. 52/15 Ashok Kapur V/s Earth Infrastructure

1.    To revisit the ABA and bring it in conformity with our
observations made above . The OP shall supply the new ABA to the
complainant and will give him 10 days time to raise objections if any.
The OP shall respond to the objections if any raised by the
complainant within a period of 15 days of its receipt.



2.    Not to charge any interest on the complainant for the  delay in
payment of the due installments as per the payment plan.

3.    Pay to the complainant a sum of Rs. 1,00,000/- as compensation
for pain and agony suffered by him.



In Complaint Case No. 51/15 Geetika  Sachdeva  & Anr. V/s Earth Infrastructure

1.    To revisit the ABA and bring it in conformity with our
observations made above . The OP shall supply the new ABA to the
complainants and will give them 10 days time to raise objections if
any.  The OP shall respond to the objections if any raised by the
complainants within a period of 15 days of its receipt.



2.    Not to charge any interest on the complainants for the  delay in
payment of the due installments as per the payment plan.

3.    Pay to the complainants a sum of Rs. 1,00,000/- as compensation
for pain and agony suffered by them.



In Complaint Case No. 50/15 Ankur  Manchanda  & Anr. V/s Earth Infrastructure



1.    To revisit the ABA and bring it in conformity with our
observations made above . The OP shall supply the new ABA to the
complainants and will give them 10 days time to raise objections if
any.  The OP shall respond to the objections if any raised by the
complainants within a period of 15 days of its receipt.



2.    Not to charge any interest on the complainants for the  delay in
payment of the due installments as per the payment plan.

3.    Pay to the complainants a sum of Rs. 1,00,000/- as compensation
for pain and agony suffered by them.

59.  We further direct the OP to deposit a sum of Rs. 10,00,000/- (Rs
Ten Lakhs)  with the Consumer Welfare Fund maintained with the State
Commission Delhi for resorting to unfair trade practice.

60.  The OP shall comply  with this order within a period of 30 days
from the date
of this order failing which it  shall be liable to pay interest on
the entire awarded amount @ 10% per annum.  If the OP company fails to
comply with this order, the complainants may approach this Forum for
execution of the order under Section 25/27 of the Consumer Protection
Act.

61.   The original order shall be kept in file no.     53 /2015
Poonam Manchanda V/s Earth Infrastructure  and copies shall be kept in
complaint nos  52/2015, 51/2015 and 50/2015.

Copy of the order be made available to the parties as per rules.

    Files be consigned to record room.

    Announced in open sitting of the Forum on.....................