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

The complainant booked a residential flat with the opposite party in a project namely, ‘ORB Towers’, which the opposite party was to develop in Sector 74 of Noida. Vide allotment letter dt. 10.12.2014, residential unit No.R029RAD3402 in the aforesaid project was allotted to the complainant for a consideration of Rs.2,36,22,050/-. As per the possession clause contained in the said allotment letter, the possession of the unit was to be delivered to the complainant within 30 months from the date of the allotment letter. The possession, therefore, ought to have been delivered to the complainant by June 2016 or latest by December 2016 after including the grace period of six months which was available to the opposite party. The grievance of the complainant is that the possession of the allotted unit has not been offered to him and even the construction is not complete despite he having paid Rs.1,08,16,881/- to the opposite party. The complainant is, therefore, before this Commission seeking refund of the amount along with compensation etc.

2.      The opposite party has filed its written version contesting the complaint primarily on the grounds which have already been rejected by this Commission in other consumer complaints. It is interalia sated in the written version filed by the opposite party that several writ petitions were filed before the Hon’ble Allahabad High Court by farmers challenging acquisition of land which had been allotted to developers. The said petitions were finally decided by Allahabad High Court on 21.10.2011 in Writ Petition No.37443 of 2011 – Gajraj Singh & Ors. Vs. State of UP & Ors.  Some of the farmers aggrieved by the said order passed by the Allahabad High Court, filed several Special Leave Petitions before the Hon’ble Supreme Court, which came to be decided on 14.5.2015. It is also alleged that there was unrest amongst the farmers who had started Dharans in front of the projects of various builders  and had halted the construction work. The said circumstance, according to the opposite party, resulted in delay of the construction.

3.      It is also alleged in the written version filed by the opposite party that vide its order dated 11.1.2013, the National Green Tribunal had passed order stopping extraction of  ground water for construction purposes, as a result of which the builders  became dependent upon Noida/Greater Noida authority for the supply of water. It is also alleged that in another matter Amit Kumar & Ors. Vs. Union of India, the NGT had passed an interim order stopping the construction work within a radius of 10 km from Okhla Bird Sanctuary. It is also claimed in the written version filed by the opposite party that as per the contract between the parties in the event of delay, the alloteees entitled only to compensation @ Rs.5/- per sq.ft. of super area per month for any delay in handing over possession.

4.      A consumer complaint being CC No.650 of 2016 seeking refund of the amount paid by the allottee for allotment of a residential flat in this very project came to be decided by this Commission vide its order dated 6.3.2017. Admittedly, an appeal preferred by the OP against the said decision of the Commission was dismissed by the Hon’ble Supreme Court and the order passed by this Commission is stated to have been complied with. Another consumer complaint being CC No.508 of 2017 - Pradeep Kumar Verma & Anr. Vs. M/s. Supertech Ltd.  seeking refund of the amount paid by the allottees for allotment of a residential unit in this very project came to be decided by this Commission vide its order dated 27.8.2018. An appeal was preferred by the opposite party against the order passed by this Commission and the said appeal, being Civil Appeal Diary No.39429 of 2018 was also dismissed.

5.      The decision of this Commission in Pradeep Kumar Verma (supra), which has been upheld by the Hon’ble Supreme Court, to the extent it is relevant, reads as under:-

3.  The complaint has been resisted by the opposite party, which has admitted the allotment made to the complainants as well as the payment made by them.  Vide email dated 05.12.2016, the opposite party had intimated the complainant that the expected date of possession would be December, 2017 and they would  be compensated for the delay in terms of the allotment letter.  It is also alleged in the written version filed by the opposite party that the complainants are defaulter in making payment, they having paid only Rs.53,47,139/- as against the total cost of Rs.1,38,63,636/-.  It is also alleged that the delay in possession was caused on account of stay order passed by the NGT regarding ground water extraction for construction purposes. 

7.      As far as delay on account of the NGT orders is concerned, the plea was considered by this Commission in CC/40/2017 Sanjay Kumar Chowdhary Vs. Supertech Limited decided on 01.3.2018 and the following view was taken:

          “6.      The learned counsel for the opposite party submits that the NGT had prohibited construction activities within a radius of 10 Kms. from Okhla Birds Sanctuary vide its letter dated August 14, 2013 passed in OA No. 158 of 2013.  I have perused the said order.  The aforesaid aspect came to be considered by this Commission in Shri Pradeep Narula & Anr. Vs. Granite Gate Properties Pvt. Ltd. Anr. in CC 315 of 2014 decided on 23.8.2016 and following view was taken:

          “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.”

7.      The learned counsel for the opposite party refers to the order of the NGT dated August 14, 2013.  The aforesaid order clearly applied to the construction work which was going on within 10 km. radius of Okhla Birds Sanctuary without proper environmental clearance or in contravention of the same.  If the OP had obtained the requisite environmental clearance before starting work on the project, the project was clearly outside the purview of the aforesaid order of the NGT.  The learned counsel also draws my attention to the order dated 17.9.2013 passed by NGT and submits that this was one of the 49 projects referred in the order of the NGT where the environment clearance had already been obtained.  I find no averment in the written version or even in the additional affidavit that the opposite party had obtained the requisite environmental clearance before starting the work on this project.  If the opposite party chose to start the work without obtaining the environmental clearance, it is only itself to blame for the situation which got to be created on account of the construction having been started without such clearance.  In any case, NGT itself had clarified vide order dated 28.10.2013 that its order dated 17.9.2013 was applicable only to construction activities which were going on without environmental clearance or against the provisions of the environmental clearance.  Therefore, vide order dated 28.10.2013, NGT issued several directions but did not stop construction in the projects which had  been started after obtaining the requisite environment clearance and in which there was no violation of the conditions, subject to which the  said clearance had been granted. If the opposite party had started the construction, without obtaining the requisite environmental clearance or in contravention of the terms of the said clearance, it is only itself to blame for being stopped from raising further construction in terms of the order of the NGT dated 17.9.2013.  Therefore, I am unable to accept the contention that the construction was delayed partly on account of the above referred orders passed by the NGT.”

8.      The learned counsel for the opposite party also submits that the environmental clearance had been suspended by the NGT vide its order dated 28.10.2013.  I however, find that the NGT had not stayed the construction work in respect of the project where the environmental clearance had been obtained.  As noted earlier, by this Commission in Sanjay Kumar Chowdhary (supra) the NGT itself had clarified vide order dated 28.10.2013, that its order dated 17.9.2013 was applicable only to construction activities, which were going on without environmental clearance or against the provisions of the said environmental clearance.  In any case, even if the delay attributed to NGT orders is taken into account, there is no convincing explanation for the remaining part of the delay.

9.      Though in the affidavit filed by way of evidence, the opposite party has also attributed the delay to some Writ Petitions filed in Allahabad High Court and the protest and agitation of farmers, no such plea has been taken in the written version.  More importantly, there is no evidence of the construction at this particular site having been stayed by the Allahabad High Court or the agitation by the farmers having actually halted the work at the site of the construction. 

10.    For the reasons stated hereinabove, I hold that there is no justification for the delay on the part of the opposite party in offering possession to the complainants.

6.      It is next contended by the learned counsel for the OP that in view of the provisions contained in RERA, this Commission has jurisdiction to entertain the Consumer Complaint.  This issue is no more res integra in view of the decision of this Commission dated 15.04.2019 passed in CC No.1764 of 2017 Ajay Nagpal Vs. M/s Today Homes & Infrastructure Pvt. Ltd. and connected matters. 

7.      It is lastly contended by the learned counsel for the OP that since the prayer made in the complaint is for cancellation of the allotment, clause 37 of the agreement between the parties comes into force and therefore, the OP is entitled to forfeit 15% of the cost of the unit as cancellation charges.  I however, find no merit in the contention.  Clause 37 of the agreement on which reliance is placed by the learned counsel for the OP, reads as under:

37.    That in case the Allottee/s, at any time, desires for cancellation of the provisional allotment for any reason whatsoever, then in such case 15% of the total cost/price of the unit shall be forfeited as cancellation charges to partially make good the loss to the Company on account of such cancellation affecting future commitments, holding cost of unit, manpower cost, reduced cash flow, project re-scheduling, increase in cost of project etc. and the balance, if any, shall be refunded without any interest in the following manner:-

a)      The refundable amount, after deduction as explained above shall be paid to the Allottee/s not before expiry of a period of three months and not later than six months from the date on which the Company receives the cancellation application/affidavit and proper documents from the Allottee/s for such cancellation.

b)      No interest shall be payable by the company for the said period of six months.

c)      If the Company makes any default in payment of refunds after the expiry of said period of six months, then the Allottee/s shall be entitled to interest @ 6% (six percent) per annum on the amount of money to be refunded.

8.      In my opinion, the aforesaid clause would apply to a case where the allottee, for his own reasons, seeks cancellation of the allotment and does not apply to a case where he is forced to seek cancellation of the allotment and refund of the amount paid by him to the developer on account of the failure of the developer to deliver possession of the house within the time period committed by him in this regard.  Had the complainant sought cancellation of the allotment before December 2016, by which the possession was to be delivered to him even after giving benefit of the grace period to the OP, there could have been some merit in the contention.  But, he having filed the complaint after expiry of the aforesaid timeline, clause 37 of the agreement would have no application. 

9.      The learned counsel for the OP also submits that since they have not abandoned the project and want to deliver possession after completing the construction which is in progress, the complainant should not be allowed refund of the amount paid by him to the OP and should be made to wait till the construction is completed and the possession of the house is offered to him.  I however, find no merit in this contention.  As noted earlier, the possession of the house, as per the agreement, ought to have been delivered by December 2016, even after giving benefit of the grace period to the OP.  The construction of the house is not complete till date and there is no certainty as to when the construction would be complete and the OP would be in a position to offer possession of the allotted flat after obtaining the requisite Occupancy Certificate.  The learned counsel for the OP states that they have already committed July 2021 to RERA Authority for completing the construction and therefore, they will be in a position to deliver possession on or before that time.  The learned counsel for the complainant however, states on instructions that the complainant is not willing to wait any more, and certainly, not till July 2021.  He also states that the complainant can no more trust the OP to deliver possession of the allotted unit to him and wants refund of the amount paid to the OP alongwith appropriate compensation.  In support of his contention that he cannot be made to wait any more for the possession of the allotted unit, he relies upon the decision of the Hon’ble Supreme Court in Civil Appeal No. 3182 of 2019 Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra decided on 25.03.2019. 

10.    The learned counsel for the complainant also states that the complainant is restricting his claim to the refund of the entire principal amount alongwith compensation in the form of simple interest @ 10% per annum from the date of each payment till the date of refund.

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

          (i) The opposite party shall refund the entire principal amount of Rs.1,08,16,881/- to the complainant alongwith compensation in the form of simple interest @ 10% per annum 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.