JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL)

           The complainants who are husband and wife, booked a residential flat with the OPs in a project namely “Lotus Panache”, which the OPs is developing in Sector-110 of Noida.  Vide allotment letter dated 16.05.2011, a residential apartment no.1703 in Tower - 27 of the aforesaid project was allotted to the complainants for a consideration of Rs.1,07,14,392/-.  The parties then entered into an agreement dated 24.05.2011, incorporating their respective obligations in respect of the aforesaid transaction.  In terms of clause 5.1 of the said agreement, the OPs were to endeavor to complete the construction within 39 months from the date of allotment.  The OPs were however, entitled to a suitable extension, if the construction was delayed for any reason beyond its control.  The possession therefore, ought to have been delivered by 24.08.2014.  The possession however, was not offered by the aforesaid date. Vide e-mail dated 19-04-2014, the OPs informed the complainant that the position would be handed over by 31-07-2015. No reason for the delay in delivery of the position however, was indicated in the aforesaid email. The possession however, was not delivered even by 31-07-2015. Vide e-mail dated June 03’ 2015, the OPs informed the complainants that the position will be delivered by November 2016.  Again, no reason for the aforesaid delay was disclosed in the e-mail.  Vide e-mail dated 16-05-2016, OPs informed the complainants that the revised timeline for delivery of possession would be January 2018.  Again, no reason for the aforesaid delay was disclosed. Being aggrieved, the complainants approached this commission by way of this Consumer Complaint seeking possession of the flat allotted to them alongwith compensation etc.

2.      The complaint has been resisted by the OPs primarily on the following grounds:

i)        Vide order dated 11-01-2013, the NGT had injuncted the builders in Noida and Greater Noida from extracting ground water for the purpose of construction.

ii)       In July 2013, here was agitation by land owning farmers group whose lands were being proposed to be acquired under the Land Acquisition Act.  The rioters hampered the construction work by not allowing the workers to enter the site and also prevented the material from reaching the construction site.

iii)      Vide order dated 14-08-2013, National Green Tribunal prevented any person or builder from carrying out construction activity within a radius of 10 kms from Okhla Bird Sanctuary.

iv)      In June 2013, prohibitory orders were passed stopping excavation of sand from Yamuna River Bed which resulted in shortage of sand required for building purpose and the sand which was available, became very expensive.

v)      On account of demonetization, the real state sector was adversely affected.

vi)      There was delay in payment by majority of the buyers of the aforesaid group housing society.

3.      In Pradeep Narula & Anr. Vs. M/s Granite Gate Properties Pvt. Ltd. & Anr., CC No. 315 of 2014, decided on 23-08-2016, the complainants had booked a residential apartment in this very project. Since possession was not offered to them, they also approached this Commission seeking possession of the flat allotted to them alongwith compensation etc.  The complaint was resisted by the OP primarily on the same grounds on which the present complaint has been resisted. The decision of the Commission in Pradeep Narula & Anr. (supra) to the extent it is relevant, reads as under:

“…… 2.      The complaint has been resisted by the opposite party which has inter-alia claimed that it was only to make endeavor to complete the construction but did not make any firm commitment to deliver possession within 39 months from the date of the allotment. It was further alleged that the delay in handing over possession of the flat happened for the reasons that (a) there was shortage of manpower and construction material due to Commonwealth Games, (b) National Green Tribunal, vide its order dated 11.01.2013, injuncted the builders from extracting ground water for the purpose of construction, resulting in acute shortage of water for construction work, (c) there was an agitation by the farmers whose land was acquired and the said agitation which lasted about two months, impeded the construction work. It is also alleged that the complainants had defaulted in timely payment of the sale consideration on five occasions though the opposite party had waived the charges of Rs.15549/- which was payable on account of the said delay.

4.      Clause 5.1, 5.2 and 5.5 of the Buyers Agreement on which reliance is placed by the opposite party, reads as under:

5.1 Subject to Clause 5.2, the sanction of the building plans for the Housing Project (including revisions thereof), and to all the buyers of the apartments in the Housing Project making timely payment the company shall endeavor to complete the construction of the apartment within 39 months from the date of the allotment of the apartment as per the allotment letter.

5.2 The parties agree and acknowledge that where the completion of the construction of the apartment and/or the handing over of the possession of the apartment is delayed by any reasons, beyond the control of the company, including without limitation force majeure, then no claim whatsoever by way of any damages/compensation shall lie against the company, and the buyer hereby waives all rights and aims in this regard. Further, where there occurs any delay in possession being handed over to the buyer on account of any of the reasons specified under this Clause 5.2, the company shall be entitled to a reasonable extension of time for handing over possession of the said apartment to the buyer.

5.5 Subject to the buyer having complied with its obligations under this Agreement, as well as the allotment letter, including but not limited to timely payment of the consideration and other charges as per the payment plan opted by the buyer, in the event of any willful delay in construction of the apartment for reasons attributable solely to the company, delay charges would be payable to the buyer, in the manner and to the extent specified herein below:

5.      Despite use of the words “the company shall endeavor to complete the construction”, I am of the view that unless prevented by reasons beyond its control, the opposite party was under a contractual obligation to complete the construction and hand over possession of the apartments to the complainants within 39 months from the date of allotment. Therefore, the first question which arises for consideration in this complaint is as to whether the completion of the construction of the flats and offer of possession has been delayed for the reasons beyond the control of the opposite party or not. As regards shortage of labour and material on account of the projects related to the Commonwealth Games, no material has been placed on record by the opposite party to show that it could not get adequate work force or sufficient building material to complete the construction of the project within the time stipulated in the Buyers Agreement. There is no evidence of the opposite party having invited tender for engagement of Contractors/Sub-Contractors with adequate manpower and building material for executing the work at the site of this project and no such Contractor/Sub-Contractor having come forward to execute the work on account of non-availability of the manpower and/or the building material. There is no evidence of the building material not being available in the market. Therefore, it cannot be accepted that due to Commonwealth Games the opposite party could not arrange adequate labour or building material required for the timely completion of the project. In any case, the said games concluded in the year 2010 itself.

6.      As regards delay of about two months on account of agitation by farmers, there is no evidence of the work at this particular site having been halted by the farmers. No affidavit of the contractor engaged by the opposite party for the construction of Tower-29 of the project has been filed to prove that he had to halt the work for about two months on account of agitation by farmers. No affidavit by any construction labourer has been filed to prove that the labourers were provided by farmers from carrying out construction on the site of Tower-29, for about two months. Therefore, the delay in completion of the construction on account of the alleged agitation by the farmers could not be substantiated by the opposite party.

7.      Vide interim order dated 11.01.2013, the National Green Tribunal restrained all the builders of Noida and Greater Noida from extracting any quantity of ground water for the purpose of construction, till the next date of hearing before it. The next date of hearing before the National Green Tribunal fixed was 24.01.2013. The aforesaid order shows that the builders raising construction of 20,000 sq. mtrs. and above were required to take environmental clearance under the relevant rules by the competent authority in the State Government but said permission had not been taken. If the requisite EC was taken by the opposite party, the order passed by the National Green Tribunal did not apply to it. If the opposite party was required to take permission from the competent authority in the State Government but had not taken such a permission before selling flats in the aforesaid project, it is only itself to blame for creating a situation in which the order passed by the National Green Tribunal on 11.01.2013 came to be applied to this project. Moreover, there is no evidence of the opposite party having tried to obtain water for construction purpose from alternative source. If the National Green Tribunal had restrained the builders from extracting the underground water in Noida/Greater Noida, they were expected to arrange water from the alternative source so as to fulfill their contractual obligation to the flat buyers. It is not as if no construction took place in Noida and Greater Noida during the period the interim order passed by the National Green Tribunal remained in force. Therefore, if the opposite party so wanted, it could have arranged water for construction purpose from the alternative source. There is no evidence of the aforesaid interim order dated 11.01.2013 having been continued by the National Green Tribunal after 24.01.2013 which was the next date of hearing in the aforesaid matter. In any case, it cannot be said that the delay in completion of the project was justified on account of the above referred interim order of the National Green Tribunal.

8.      The opposite party has filed, alongwith its affidavit by way of evidence, a copy of an order dated 28.10.2013 passed by the National Green Tribunal in M.A. No. 890 of 2013 and connected matters. The said order contains reference to an earlier order dated 14.08.2013, whereby NOIDA was directed to stop the construction work going on within a radius of 10 kms from Okhla Bird Sanctuary, without prior environmental clearance or in contravention of the same. The order dated 28.10.2013 shows that the aforesaid order applied to 49 projects out of which, 15 had already been completed and 7 had not begun. The Tribunal made it clear that its intention on 17.09.2013 was to extend the interim order dated 14.09.2013 to the persons or builders carrying on construction activity without environmental clearance or against the provisions of the environmental clearance. This is not the case of the opposite party that no environmental clearance was required or that it had not obtained such a clearance before it started the construction in this project. In such a case, the order passed by the National Green Tribunal would not apply to this project since the scope of the said order was limited to the construction activity being carried out without requisite environmental clearance or in contravention of the environmental clearance. If the opposite party had commenced construction of the project in question without obtaining the requisite environmental clearance or the said construction was in contravention of the environmental clearance, it has only itself to blame for the said construction being stopped by the National Green Tribunal.

9.      Vide above referred order dated 28.10.2013, National Green Tribunal directed that all the projects within an area of 10 kms radius of the Okhla Bird Sanctuary be examined by National Board for Wild Life. The Ministry of Environment & Forests was directed to refer all the aforesaid projects to National Board for Wild Life, within four weeks. The Government of U.P. was directed to send the particulars relating to the environmental clearance given to the aforesaid projects to the Ministry of Environment & Forests within four weeks from the order. Within four weeks thereafter, Ministry of Environment & Forests was to refer the same to the standing Committee of National Board for Wild Life, which was to verify the correctness of the statement made by the project proponent. The order passed by the aforesaid Board was to indicate whether the project should be permitted or not. It was made clear that the building construction within 10 kms radius of Okhla Bird Sanctuary or within distance of Eco-Sensitive Zone to be prescribed by Ministry of Environment & Forests shall be subject to decision of National Board for Wild Life and till clearance from the said Board, the Authority shall not issue completion certificate to the project. Thus, in the aforesaid order dated 28.10.2013, the National Green Tribunal did not stay further construction of the projects where requisite environmental clearance had been obtained, and only completion certificate was withheld till clearance from the National Board for Wild Life.

          The order of the Tribunal to the extent the issue of completion certificate was withheld till the clearance from NBWL could not have contributed to the delay in offering possession to the complainants since the construction not being complete, the stage to obtain the requisite completion certificate had not reached, by the time the aforesaid order dated 28.10.2013 came to be passed by the National Green Tribunal. In fact, even in the cases where the construction was complete and the completion certificate had been applied, the builder could obtain the completion certificate on the project being cleared by NBWL. If there was a delay on the part of the Government of U.P. in sending the particulars relating to the environmental clearance given to the project, to the Ministry of Environment & Forests, there was delay on the part of Ministry of Environment & Forests in forwarding the matter to National Board for Wild Life or there was delay on the part of the National Board for Wild Life in completing its enquiry in terms of the order of the National Green Tribunal, the builder could always approach the said Tribunal for giving appropriate directions to the Government of U.P. or Ministry of Environment & Forests or National Board for Wild Life as the case might be.

          In its affidavit dated 20.07.2016, the opposite party has inter-alia stated that they had applied for completion certificate in respect of Tower-29 on 09.12.2014. However, there is no material or even an allegation that the completion certificate applied by the opposite party was delayed or withheld on account of the order of the National Green Tribunal dated 28.10.2013 or 03.04.2014. Therefore, the orders passed by the National Green Tribunal from time to time do not justify the delay in handing over possession to the complainants.”

4.      The learned counsel for the complainants has pointed out that vide demand letter dated 11-06-2013, the OPs had demanded from the complainants, the installment payable on completion of the brick work. This would show that according to the OP itself, the entire brick work had been completed by 11-06-2013 when the aforesaid demand was raised. Therefore, the grounds taken in the written version of the OPs for the delay in completion of the project do not appear to be bonafide and genuine. Vide letter dated 27-09-2013, the OPs demanded the installment payable on completion of electrical conducting and wiring. The aforesaid letter also shows that building work had already being completed by that date. This is yet another indication that the grounds taken in the written version for the delay in completion of the project are not genuine and bonafide.

5.      As regards demonetization, the same cannot constitute a valid ground for the delay in completion of the project since the aforesaid decision of the Government did not, in any manner, affect the ability of the OPs to complete the project. More importantly, the possession in this case was required to be delivered by 24-08-2014 whereas demonetization was announced only on 08-11-2016. Therefore, reference to demonetization is wholly misplaced.

6.      As regards the alleged failure of the other flat buyers to pay their dues, the complainants cannot be held responsible for the same. If there were such defaults, nothing prevented the OPs from cancelling the allotment on account of such defaults and then selling those flats in the open market.

7.      The next question which arises for consideration is as to what relief the complainants are entitled.  Though the complainants had sought possession of the flat allotted to them alongwith compensation, learned counsel for the complainants has today filed an affidavit stating therein that considering the abnormal delay on the part of the OPs in offering possession of the allotted flat, the complainants are no more interested in taking possession of the said flat and now want refund of the entire amount paid by them alongwith compensation in the form of interest. As noted earlier, the OP itself had revised the date for delivery of possession the January 2018 vide e-mail dated 16-05-2016. There is no evidence of the OPs having obtained the requisite Occupation certificate in respect of the said flat. As noted earlier the possession ought to have been delivered by 24-08-2014. There was delay of more than 3½ years after 24-08-2014. Considering the extent of the delay, the complainants in my view, cannot be compelled to take possession of the flat allotted to them and they are entitled to seek refund of the amount paid by them to the OPs alongwith suitable compensation in the form of simple interest.           

8.      The learned counsel for complainants states on instruction from complainant No. 1 who is present in the court that in order to avoid further litigation in the matter and also considering the recent downward trend in the price of real state coupled with the interest rates prevailing at the relevant time, the complainants are restricting their claim to the refund of the entire principal amount of Rs.96,94,972/- alongwith compensation in the form of simple interest at @ 10% per annum.

9.      The complaint is therefore, disposed of with the following directions:

1. The OPs shall refund the entire principal amount of Rs.96,94,972/- to the complainants alongwith compensation in the form of simple interest @ 10% per annum from the date of each payment till the date on which the aforesaid amount is actually refunded.

2. The OPs shall also pay Rs.25,000/- as the cost of litigation to the complainants.

3. The payment in terms of this order shall be made within 3 months from today.

4. The previous cost payable by the OPs to the complainants shall be paid within 2 weeks from today.