Chandigarh

StateCommission

CC/13/2022

Rajiv Bhalla - Complainant(s)

Versus

Greater Mohali Area Development Authority - Opp.Party(s)

Ranjinder Singh Sidhu Adv.

08 Jun 2022

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	13 of 2022
Date of Institution	:	28.01.2022
Date of Decision	:	08.06.2022

 

Rajiv Bhalla aged about 42 years, son of Panna Lal Bhalla, resident of House No. 218, Shivalik Enclave Manimajra, Manimajra, Chandigarh-160101.

……Complainant

 

V e r s u s

 

1. Greater Mohali Area Development Authority, PUDA Bhawan, Sector 62, SAS Nagar, Punjab through its Chief Administrator. Email.www.gmada.gov.in

 

2. Greater Mohali Area Development Authority, PUDA Bhawan, Sector 62, SAS Nagar, Punjab through its Estate Officer (IT City), Mohali, Punjab. Email.www.gmada.gov.in

…..Opposite parties

==============================================================

Complaint case No.	:	25 of 2022
Date of Institution	:	16.03.2022
Date of Decision	:	08.06.2022

 

Mewa Singh Maur aged about 83 years, son of Amar Singh Maur, permanent resident of 3T, Ganganagar, Rajasthan presently residing at House No. 315, Sector 22-A, Chandigarh.

……Complainant

 

V e r s u s

 

1. Greater Mohali Area Development Authority, PUDA Bhawan, Sector 62, SAS Nagar, Punjab through its Chief Administrator. Email.www.gmada.gov.in
2. Greater Mohali Area Development Authority, PUDA Bhawan, Sector 62, SAS Nagar, Punjab through its Estate Officer (IT City), Mohali, Punjab. Email.www.gmada.gov.in

…..Opposite parties

 

==============================================================

Complaint case No.	:	26 of 2022
Date of Institution	:	17.03.2022
Date of Decision	:	08.06.2022

 

Shivninder Kaur aged about 42 years, wife of Parminder Singh, daughter of Charanjit Singh, permanent resident of Ward No. 6, 3T, Ganganagar, 19F, Rajasthan presently residing at House No. 315, Sector 22-A, Chandigarh.

……Complainant

 

V e r s u s

 

1. Greater Mohali Area Development Authority, PUDA Bhawan, Sector 62, SAS Nagar, Punjab through its Chief Administrator. Email.www.gmada.gov.in
2. Greater Mohali Area Development Authority, PUDA Bhawan, Sector 62, SAS Nagar, Punjab through its Estate Officer (IT City), Mohali, Punjab. Email.www.gmada.gov.in

…..Opposite parties

=============================================================

 

BEFORE:    JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                   MRS. PADMA PANDEY, MEMBER.

                   MR.RAJESH K. ARYA, MEMBER.

 

Present in all three complaints:

                            

                      Sh.Rajinder Singh Sidhu, Advocate for the complainant(s).

Sh.Jashan Preet Singh, Advocate alongwith Sh.Tushar Arora, Advocate for the opposite parties.

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                  

                   By this order, we propose to dispose of the aforesaid three consumer complaints. Since, the issues involved in the above complaints, except minor variations, here and there, of law and fact are the same, therefore, we are of the opinion that these complaints can be disposed of, by passing a consolidated order.

2.           The aforesaid complaints have been filed by the respective complainants, as they are aggrieved of deficiency in providing service, negligence and adoption of unfair trade practice on the part of the opposite parties, as they have caused delay in delivery of possession of their respective plots, purchased by them (complainants), in their (opposite parties) project, for dearth of construction and development activities. They have sought directions to the opposite parties to pay compensation by way of interest, on the deposited amount for the period of delay; compensation for mental agony harassment etc.  Details with regard to the project in dispute; plots purchased; payments made by the complainants; dates of deemed possession of the plots etc. of these complaints are given below:-

 

CC No.	13 of 2022	25 of 2022	26 of 2022
Project name	Alpha City, Sector 83, IT City Mohali, SAS Nagar	Sector 82 Alpha, Block B, (IT-750 plots)  City Mohali, SAS Nagar	Sector 66 Beta, Block B, (IT-750 plots)  City Mohali, SAS Nagar
Booking date	18.08.2016	15.11.2016	24.12.2016
Draw of lots	21.09.2016	21.09.2016	21.09.2016
Plot No.	1189	1326	1594
Allotment date	09.06.2020	03.02.2019	04.01.2019
Area of plot	256.66 square yards	500 square yards	500 square yards
Cost	5133200.00	9985950.00	9861900.00
Amount paid	5133200.00	9985950.00	9861900.00
Letter of Intent	11.11.2016	15.11.2016	24.12.2016
Possession date	10.11.2017 (as per clause 15 of Letter of Intent)	14.11.2017 (as per clause 15 of Letter of Intent)	23.12.2017 (as per clause 15 of Letter of Intent)
Possession delivered on	09.09.2020 (deemed possession-90 days after issuance of letter dated 09.06.2020	02.05.2019 (deemed possession-90 days after issuance of letter dated 03.02.2019)	03.04.2019 (deemed possession-90 days after issuance of letter dated 04.01.2019)
Delay in years	34 months	17 months and 19 days	12 months and 13 days

 

3.           It has been stated that by not making payment of compensation for the period of delay in delivery of possession of their respective plots, the opposite parties are deficient in providing service and also indulged into unfair trade. Hence these complaints.  
4.           The claim of the complainants, in all these three complaints has been contested by the opposite parties, on numerous similar grounds,  inter alia:-
   1. that all these complaints are not maintainable, as no cause of action accrued to the complainants;
   2. that development works at the area of the project site, where the plots of the complainants were located, could not be completed on account of delay on the part of the State Level Environment Impact Assessment Authority, in issuing the Amended Environmental Clearance, which fact was also brought to the knowledge of the general public by way of Public Notice dated 14.06.2019 in “The Tribune”;
   3. that thereafter allotment letters of the plots could not be issued immediately due to outbreak of COVID-19 and imposition of Lockdown in the country;
   4. that allotment letters in respect of the respective plots were issued in favour of the complainants on 09.06.2020 in CC No.13 of 2022; on 03.02.2019 in CC No.25 of 2022; and 04.01.2019 in CC No.26 of 2022 and they were asked to take possession within 90 days;
   5. that the complainants never raised any  complaint with the opposite parties from the date of issuance of LOIs till possession of the plots were offered to them, whereas, on the other hand, they could have refused to accept the offer so made;
   6. that since the rates of plots in the area have increased manifolds, as such, the complainants cannot seek  compensation for delay in offering possession;
   7. that these complaints are barred by limitation;
   8. that  time was not the essence of contracts; and
   9. that the complainants did not fall within the definition of “consumer”;
5.           In the rejoinders filed, the complainants reiterated all the averments contained in their respective complaints and have controverted those contained in written replies filed by the opposite parties.
6.           The parties led evidence in support of their cases.
7.           We have heard the contesting parties and have gone through record of these cases, including the rejoinders and written arguments filed by the parties, very carefully.
8.           First coming to the objection taken to the effect that the complainants did not fall within the definition of ‘consumer’, it may be stated here that the objection raised is not supported by any documentary evidence and as such the onus shifts to the opposite parties to establish that the complainants, in these complaints have purchased the respective plots to indulge in ‘purchase and sale of plots as was held by the Hon’ble National  Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since they failed to discharge their onus, especially, in the face of the reason that the complainants have taken over possession of their respective plots, hence we hold that the complainants are consumers as defined under the Act. In this view of the matter, objection taken by the opposite parties in this regard stands rejected. 
9.           There is no dispute with regard to purchase of respective plots by the complainants in the project of the opposite parties, as per the details mentioned in the chart above. It is also an admitted fact that despite the fact that in all these complaints, substantial amounts, referred to above, stood received by the opposite parties, yet, possession of the respective plots had not been delivered to them within a period of one year from the dates of  LOIs i.e. from 11.11.2016 in CC No.13 of 2022; 15.11.2016 in CC No.25 of 2022; and 24.12.2016 in CC No.26 of 2022, as envisaged in Clause 15 thereof (LOIs). Admittedly, possession of the respective plots was delivered to the  respective complainants after huge delay i.e. delay of 34 months in CC No.13 of 2022; delay of 17 months and 19 days in CC No.25 of 2022 and delay of 12 months and 13 days in CC No.26 of 2022. During arguments, when we asked Counsel for the opposite parties, as to what was the reason for such an inordinate delay in delivery of possession of the respective plots to the complainants, he tried to wriggle out of the situation, by stating that it was only on account of following force majeure circumstances, which were beyond the control of the opposite parties:-
   1. that the State Level Environment Impact Assessment Authority caused delay in issuing the Amended Environmental Clearance; and
   2. that thereafter allotment letters of plots could not be issued immediately due to outbreak of COVID-19 and imposition of Lockdown;

 

We have considered these contentions and are of the considered view that the same does not merit acceptance for the reasons stated hereinafter. It may be stated here that the opposite parties have failed to clarify this Commission, as to why they received huge amounts, referred to above, from the respective complainants, knowing fully well that necessary clearances have not been given by the competent Authorities. In our considered opinion, the opposite parties should have obtained all the approvals/clearances before booking the said plots. If the opposite parties chose to accept booking without obtaining statutory approvals/clearances or amended clearances, they are to blame to themselves only. The purchaser of the plots, who had nothing to do with grant of statutory approvals/clearances, cannot be penalized by postponing the possession. Our this view is supported by the observations made by the Hon’ble National Commission in M/s. Narne Constructions Pvt. Ltd. Vs. Dr. Devendra Sharma & 4 Ors., Revision Petition No. 4620 of 2013, decided on 17 Dec 2015. Relevant part of the said order reads as under:-

 

 

“…..As far as final sanction of layout by HUDA is concerned, in my view, the petitioner cannot penalize the complainants/respondents for the delay in the aforesaid sanction since delay cannot be attributed to any act or omission on the part of the complainants/respondents.  In fact, in my opinion, the petitioner should not even have accepted the booking without final sanction of the layout by HUDA.  If the petitioner chose to accept booking on the basis of provisional sanction of the layout by HUDA, it is to blame to only itself for the delay, if any, on the part of the HUDA in issuing the final sanction of the layout.  The purchaser of the plot, who had nothing to do with the sanction of the layout by HUDA cannot be penalized, by postponing the possession or registration of the plot and therefore any escalation in the registration charges on account of delay in final sanction of layout by HUDA must necessarily be borne by the builder and not by the allottee of the plot…..”

 

It has thus been proved by the admission of the opposite parties only that money had been collected from the prospective buyers including the respective complainants, without obtaining statutory approvals/clearances. Collecting money from the perspective buyers and selling the plots/units in the  project, without obtaining the required approvals/clearances is an unfair trade practice on the part of the project proponent. It was so said by the Hon’ble National Commission, in a case titled as M/s Ittina Properties Pvt. Ltd. & 3 Ors. Vs. Vidya Raghupathi & Anr., First Appeal No. 1787 of 2016, decided on 31 May 2018. Relevant part of the said order reads as under:-

“…………….This Commission in Brig. (Retd.) Kamal Sood Vs. M/s. DLF Universal Ltd., (2007) SCC Online NCDRC 28, has observed that it is unfair trade practice on the part of the Builder to collect money from the perspective buyers without obtaining the required permission and that it is duty of the Builder to first obtain the requisite permissions and sanctions and only thereafter collect the consideration money from the purchasers.

It is an admitted fact that the sale deeds were executed in the year 2006 and by 2009 the completion certificate was not issued. The Occupancy Certificate was issued only on 25.09.2017 during the pendency of these Appeals before this Commission. Allotting Plots or Apartments before procuring the relevant sanctions and approvals is per se deficiency…………”

 

10.           As far as plea taken regarding COVID 19 is concerned, it may be stated here that the said pandemic which took place in the year 2020 being a subsequent event, has no relation whatsoever with the booking of plots made by the respective complainants in the year 2016 and that too when  possession thereof was to be delivered within a period of one year from the date of issuance of LOIs i.e. latest by the end of the year 2017. It is therefore held that the opposite parties were deficient in providing service and were negligent on this count and in no way can claim immunity, under the garb of force majeure circumstances, referred to above.
11.           The opposite parties also cannot evade their liability on the ground that  time was not the essence of contracts, especially, in the face of clause 15 of the LOIs which reveals that it has been committed by the opposite parties that physical possession of the plots shall be handed over to the respective complainants within a period of one year from the date of issuance of the said LOIs, which in the present case was to expire in the year 2017 itself. In this view of the matter plea taken by the opposite parties in this regard stands rejected.
12.           Be that as it may, it is not in dispute that the complainants have taken over deemed possession of their respective plots. In their complaints also the respective complainants have sought compensation for the period of delay in delivery of possession of the said plots i.e. from the committed dates till deemed possession as per the respective allotment letters. Thus, under these circumstances, now the question that falls for consideration is, as to what amount of compensation, the complainants are entitled to get, for the period of delay in delivery of possession of their respective plots. It may be stated here that recently the Hon’ble National Commission in Nagesh Maruti Utekar Vs. Sunstone Developers Joint Venture Hubtown Sunstone, Consumer Case No. 12 of 2017, decided on 04 May 2022, has awarded interest @9% p.a. on the deposited amount, for the period of delay. Relevant part of the said order reads as under:-

“…Consequently, the Opposite Party Developer is directed to pay interest @9% w.e.f. 31.03.2014, i.e., the expected date of delivery of the possession, on the amount deposited by the respective Complainant till 02.09.2017, i.e., the date on which the possession of the Flat was offered by the Opposite Party Developer, within two months from today…”

Similar view has been expressed by the Hon’ble National Commission in Shreya Kumar Versus M/s. Ansal Housing & Construction Ltd, Consumer Case No. 1021 of 2017, decided on 05 May 2022. In view of the observations made by the Hon’ble National Commission, in the above noted cases, we are of the considered view that if we award simple interest @ 9% per annum on the entire amounts deposited by the complainants, against their respective plots,  from the due dates of possession till the dates when possession thereof has been delivered to them, that will meet the ends of justice.

13.           Now we will deal with the objection taken by the opposite parties to the effect that these complaints are beyond limitation, it may be stated here that since it is an admitted fact that possession of the respective plots in question was delivered to the complainants on 09.09.2020 in CC No.13 of 2022; 02.05.2019 in CC No.25 of 2022 and 03.04.2019 in CC No.26 of 2022, as such, if the period of two years are taken from the said dates, after excluding the period from 15.03.2020 to 28.02.2022 plus 90 days,  in view of order passed by the Hon’ble Supreme Court of India in Suo Moto Writ Petition (Civil) No. 3 of 2020,  due to COVID 19, these complaints in no way could be said to be barred by limitation. As such, objection taken by the opposite parties in this regard stands rejected.
14.           For the reasons recorded above, all the three complaints are partly accepted with costs, in the following manner:-

In CC No.13 of 2022, the opposite parties, jointly and severally, are directed as under:- 

1. To execute sale deed in respect of the plot in question, if not yet executed, within a period of 30 days from the date of receipt of a certified copy of this order.
2. To pay compensation by way of interest @9% p.a. to the complainant, on the entire amount deposited by him, for delay in delivery of possession of the plot in question, starting from the promised date i.e. from 10.11.2017 till 09.09.2020, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount shall carry interest @12% p.a. from the date of default till realization.
3. To pay Rs.75,000/- as  compensation for mental agony and harassment and also Rs.35,000/-, as cost of litigation, to the complainant, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the said amounts shall carry interest @9% p.a. from the date of passing of this order, till realization.

 

In CC No.25 of 2022, the opposite parties, jointly and severally, are directed as under:- 

1. To execute sale deed in respect of the plot in question, if not yet executed, within a period of 30 days from the date of receipt of a certified copy of this order.
2. To pay compensation by way of interest @9% p.a. to the complainant, on the entire amount deposited by him, for delay in delivery of possession of the plot in question, starting from the promised date i.e. from 14.11.2017 till 02.05.2019, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount shall carry interest @12% p.a. from the date of default till realization.
3. To pay Rs.75,000/- as  compensation for mental agony and harassment and also Rs.35,000/-, as cost of litigation, to the complainant, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the said amounts shall carry interest @9% p.a. from the date of passing of this order, till realization.

 

In CC No.26 of 2022, the opposite parties, jointly and severally, are directed as under:- 

1. To execute sale deed in respect of the plot in question, if not yet executed, within a period of 30 days from the date of receipt of a certified copy of this order.
2. To pay compensation by way of interest @9% p.a. to the complainant, on the entire amount deposited by her, for delay in delivery of possession of the plot in question, starting from the promised date i.e. from 23.12.2017 till 03.04.2019, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount shall carry interest @12% p.a. from the date of default till realization.
3. To pay Rs.75,000/- as  compensation for mental agony and harassment and also Rs.35,000/-, as cost of litigation, to the complainant, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the said amounts shall carry interest @9% p.a. from the date of passing of this order, till realization.

15.           Certified Copies of this order be sent to the parties, free of charge and one copy thereof be placed in the connected case files.
16.           The files be consigned to Record Room, after completion.

Pronounced.

08.06.2022                            

Sd/-

 [JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

(PADMA PANDEY)

          MEMBER

 

 

Sd/-

(RAJESH K. ARYA)

 MEMBER

 Rg.