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

          The complainants booked a residential flat with the OP in a project namely “Up Country” which the OP was to develop in Plot No.TS-1 in Sector-17A, Yamuna Expressway Industrial Development Area. Vide allotment letter dated 20.02.2015, villa no. 124 in Block S-6 of the said project was allotted to them for a total consideration of Rs.96,86,575/- exclusive of service tax.  As per clause 1 of the said allotment letter, the possession was to be delivered to the complainants by March 2015 though a grace period of six months was also available to the OP which could be invoked in case the possession was delayed due to unforeseen circumstances.  The grievance of the complainants is that the possession has not even been offered to them despite they having already paid Rs.1,00,42,955/- to the OP.  The complainants are therefore, before this Commission seeking refund of the aforesaid amount.

2.      The complaint has been resisted by the OP primarily on the grounds that:

(i)     The land on which the apartments were to be constructed was acquired by Yamuna Expressway Industrial Development Authority (hereinafter referred to as “YEIDA”) and allotted to the OP but the acquisition was challenged by the land owners by way of Writ Petitions filed in Allahabad High Court and the farmers whose land had been acquired did not allow the construction to progress.

(ii)    National Green Tribunal had prohibited the use of ground water for construction purposes.

(iii)   The supply of raw material and labour etc. was totally disrupted due to strikes/agitation at the site and nearby vicinity of the project by the farmers whose lands were acquired by Noida/Greater Noida Authority.

3.      All these grounds were recently considered and rejected by this Commission vide its order dated 16.04.2019 in CC No.2335 of 2017 STUC Awasiya Grahak Kalyaan Association Vs. Supertech Ltd., which is related to the allotments made in this very project.

4.      The decision of this Commission in CC No.2335 of 2017, to the extent it is relevant, reads as under:

5.     As far as the prohibition on use of the ground water for construction purposes is concerned, the OP has relied upon the order dated 11.1.2013 passed by National Green Tribunal.  A perusal of the said order would show that the NGT had restrained the builders in Noida and Greater Noida from extracting groundwater for the purpose of construction, till the next date of hearing before it.  The matter was then adjourned by NGT to 24.1.2013.  The subsequent orders passed by the NGT have not been filed by the OP.  Therefore, it cannot be known whether the said interim order dated January 11, 2013 was extended and if so, till which date the injunction against extraction of ground water in Noida and Greater Noida for construction purposes remained in force.  Moreover, the plot on which the construction was to be raised by the OP does not fall either in Noida or in Greater Noida.  The said plot falls in Yamuna Expressway Industrial Development Area, which is ahead of Greater Noida.  No order of the NGT, restraining builders of Yamuna Expressway Industrial Development Area from extracting ground water for construction purposes has been placed on record. 

In case, there was an order restraining the OP from extracting ground water for construction purposes, it was for the OP to arrange water for construction purposes from alternative sources and the flat buyers cannot be made to suffer on account of such an order, if any.

6.     As far as challenge to the acquisition of land is concerned, even according to the OP, the writ petition filed by the farmers in Allahabad High Court came to be decided on 21.10.2011.  Though, Civil Appeals were later filed before the Hon’ble Supreme Court, which eventually upheld the order passed by Allahabad High Court, admittedly, no order was passed by the Hon’ble Supreme Court at any point of time, restraining the builders, particularly the builders in YEIDA from raising construction on the land, which were subject matter of the civil appeals pending before the Hon’ble Apex Court.   Moreover, the agreements with the allottees on whose behalf this complaint has been instituted came to be executed much later than the decision of the Allahabad High Court on 21.10.2011.  Therefore the litigation with respect to acquisition of the land was very much in the knowledge of the opposite party, and must have been factored in, while committing the timeline for completion of the construction and delivery of the possession.  Therefore, it cannot be said that the institution of the writ petition challenging the acquisition of land followed by filing of the Civil Appeals before the Hon’ble Supreme Court had in any manner prevented the OP from proceeding with the construction. 

9.     As far as the alleged agitation by the farmers is concerned, no direct evidence has been led by the OP to prove the dates on which and the period during which the farmers had actually prevented the construction work on the project in which allotment was made to the consumers, on whose behalf this complaint is instituted, or the period during which the OP was actually prevented by the farmers from starting the construction on the said plot.  In the absence of such an evidence, it cannot be known how much delay in the commencement and / or progress of the construction can be attributed to the alleged agitation by the farmers.  The sole complaint to the police was made by the OP in November, 2010, much much before the OP entered into the agreement with the consumers on whose behalf this complaint is instituted.  There is no evidence of any other complaint having been made to the concerned police station, alleging disruption of construction work by the farmers.  In any case, the alleged agitation by the farmers having started much before the allotments made to the above referred consumers, the said agitation must have been factored in by the builder while committing the date for delivery of possession to them.  If despite the ongoing agitation by the farmers, the OP chose to make allotments and give a particular timeline for delivery of possession to the allottees, it is only itself to blame and the allottee cannot be penalised for the alleged disruption of the construction work by the farmers.

        Though, in several letters sent to YEIDA, the OP alleged that the farmers had prevented them from carrying out the construction work such averments appear to have been made only with a view to persuade the Authority to treat a particular period as zero period and postpone the schedule of the land payment instalments.  It would be pertinent to note here that YEIDA had allotted land to the OP, without taking the entire sale consideration and had permitted it to pay the bulk of the sale consideration in instalments.  This inference find strength from the fact that no direct evidence of the stoppage or disruption of construction work by the farmers subsequent to the allotments made to the allottees on whose behalf this complaint is instituted has been produced by the OP and there is no evidence of even any FIR having been lodged with the concerned police station after November, 2010, alleging disruption or stoppage of construction work by the farmers.  Therefore, I have no hesitation in holding that the alleged disruption / stoppage of the construction work by the farmers does not stand substantiated during the period after allotment had been made to the consumers on whose behalf this complaint is instituted.  In any case, the agitation by the farmers was very much in the knowledge of the OP at the time it made allotments to them and committed a particular timeline for completing the construction and delivering possession of the houses to them. 

5.      In the present case, the allotment letter stipulating delivery of possession by March 2015 was issued by the OP on 20.02.2015.  The order by National Green Tribunal prohibiting use of ground water for construction purposes had been passed more than two years before the said letter was issued.  In fact, the booking itself was made by the complainants on 12.09.2013, much after the said order had been passed by the National Green Tribunal.  Even the order by Allahabad High Court on the Writ Petitions challenging the acquisition of land had been passed on 21.10.2011, about two years before the booking was made by the complainants.  Therefore, the aforesaid orders being very much in the knowledge of the OP at the time the booking was expected as well as at the time the allotment letter was issued in February 2015, it cannot be said that the OP could not complete the construction on account of the aforesaid factors.

6.      The learned counsel for the OP submits that they had submitted the completion drawings on 15.02.2015.  If this is so, that would mean that the construction had been completed by them by that date but the requisite Completion Certificate/Occupancy Certificate has not been issued, as far as the allotted villa is concerned.   Therefore, the grounds given for the delay in construction become irrelevant in this case.  The learned counsel for the OP states that a part Occupancy Certificate was issued to the OP but the said part Occupancy Certificate does not cover the villa allotted to the complainant.  If the Occupancy Certificate has not been granted to the OP in respect of the villa allotted to the complainant despite the completion drawings having been submitted way back on 15.02.2015 as is stated by its counsel, the inevitable inference is that there are some deviations/deficiencies in the project on account of which the requisite Occupancy Certificate in respect of the allotted villa has not been issued. The complainants cannot be made to suffer for such an act of the OP and cannot be made to wait indefinitely for the allotted villa.  This is more so considering that more than 3½ years have already passed from the date by which the possession was to be delivered to the complainants even after giving the benefit of the grace period to the OP. 

7.      The learned counsel for the complainants places reliance upon the recent decision of the Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan Civil Appeal No. 12238 of 2018 decided on 02.4.2019.

        In Pioneer Urban Land & Infrastructure Ltd. (supra), the builder obtained the occupancy certificate on 23.7.2018 during pendency of the consumer complaint and offered possession on 28.8.2018.  This Commission vide its Judgment dated 23.10.2018, held that since the last date stipulated for construction had expired about three years before the issuance of the occupancy certificate, the flat purchasers could not be compelled to take possession at such a belated stage.  Rejecting the appeal filed by the Pioneer Urban Land & Infrastructure Ltd. (supra) against the decision of this Commission, the Hon’ble Supreme Court inter-alia held as under:

        “6.1  In the present case, admittedly the appellant – Builder obtained the Occupancy certificate almost two years after the date stipulated in the Apartment Buyer’s Agreement. As a consequence, there was a failure to hand over possession of the flat to the respondent – Flat Purchaser within a reasonable period.  The Occupancy Certificate was obtained after a delay of more than two years on 28.8.2018 during the pendency of the proceedings before the National Commission.

        In Lucknow Development Authority V. M.K. Gupta, this court held that when a person hires the services of a builder, or a contractor, for the construction of a house or a flat, and the same is for a consideration, it is a “service” as defined by Section 2(o) of the Consumer Protection Act, 1986.  The inordinate delay in handing over possession of the flat clearly amounts to deficiency of service. 

        In Fortune Infrastructure & Anr. Vs. Trevor D’Lima & Ors., this Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation.

        6.2   The Respondent – Flat Purchaser has made out a clear case of deficiency of service on the part of the Appellant – Builder.  The respondent – flat purchaser was justified in terminating the Apartment Buyer’s Agreement by filing the Consumer Complaint, and cannot be compelled to accept the possession whenever it is offered by the Builder.  The Respondent – Purchaser was legally entitled to seek refund of the money deposited by him along with appropriate compensation.

          In the present case, even the possession of the allotted villa cannot be offered to the complainants since the requisite Occupancy Certificate in respect of the villa which has been allotted to them by the OP has not been obtained. 

8.      I therefore, hold that the complainants are entitled to refund of the amount paid by them to the OP alongwith adequate compensation in the form of interest at the rate of 10% per annum.

9.   During the course of hearing, the learned counsel for the complainant, restricted the claim to the refund of the principal amount, along with interest at the rate of 10% per annum, from the date of each payment. 

10.   For the reasons stated hereinabove, the complaint is disposed of with the following directions:-

(i)     The opposite party shall refund the entire amount received from the allottees, on whose behalf this complaint continues, along with compensation, in the form of simple interest @ 10% per annum to them from the date of each payment, till the date of refund.

(ii)    The opposite party shall pay a sum of Rs.25,000/- as the cost of litigation  to the complainant.

(iii)   The payment in terms of this order shall be made within three months from today.