JUSTICE V.K. JAIN, (ORAL)

The complainant booked a residential Villa with the opposite party  in a project namely “Supertech Up Country” which the OP was to develop in  Sector-17A of Yamuna Expressway. Vide allotment letter dated 14.5.2013, Unit No.0026 in Block S-3 of the project was allotted to the complainant for a consideration of Rs.12007342/-. As per Clause 1 of the terms and conditions of the said letter, the possession was to be delivered to the complainant in August 2013 though the said period could be extended upto a maximum of six months due to unforeseen circumstances. Subsequently, the opposite party issued another allotment letter dated 28.8.2014 to the complainant for the same unit, wherein the consideration was reduced to Rs.11987342/- though the basic sale price was the same. There was a reduction to the extent of Rs.20,000/- since the power back up was not included in the sale price shown in the second allotment letter. As per Clause 1 of the terms and conditions of the second allotment letter the possession was to be given in December 2014 and again a period of six months was available to the developer in the event of unforeseen circumstances.

2.      Since the possession of the allotted unit was not offered to him, the complainant approached this Commission seeking possession of the said unit with compensation etc.

3.      The case of the complainant is that he having lost the first allotment letter dated 14.5.2013 had requested the opposite party to issue a duplicate allotment letter but they issued the allotment letter dated 28.8.2014. The opposite party has itself filed a copy of an affidavit taken from the complainant in which he has clearly stated that the allotment letter issued to him on 16.4.2013  had been lost by him and he requested the opposite party to issue a duplicate copy of the allotment letter. The opposite party in my opinion was not justified in issuing an allotment letter bearing a later date when the complainant had sought only a duplicate copy of the allotment letter dated 16.4.2013. Though it is stated by the learned counsel for the opposite party that the parties had renegotiated the matter on account of default on the part of the complainant in making payment which had led to issuance of a cancellation notice dated 20.2.2013, the said plea cannot be accepted since even the allotment letter of 13.4.2013 was issued later than  the cancellation notice dated 20.2.2013.  After issuance of the allotment letter dated 13.4.2013, there was no renegotiation between the parties and therefore, the issuance of allotment letter bearing a later date was not justified and obviously it was done only with a view to extend the last date for delivery of the possession of the allotted unit to the complainant. Though there was a reduction of Rs.20,000/- in the aggregate sale price that happened because of power back up having been withdrawn while issuing the second allotment letter and there was no change in the basic sale price of the unit which was allotted to the complainant. Therefore, I have no hesitation in holding that in terms of the allotment letter dated 13.4.2013, the opposite party was under an obligation to deliver possession of the allotted unit to the complainant latest by February 2014 even after giving benefit of the grace period of six months which was available in the event of unforeseen circumstances.

4.      The complaint has been resisted by the opposite party primarily on the grounds that this Commission does not have pecuniary justification to entertain the complaint, an alternative remedy under RERA is available to the complainant and the complainant had not made payment as per the payment plan Annex. R-5 to the written version. It is also stated in the written version that the opposite party had already issued pre-possession demand notice to the complainant on 15.12.2016 and that the opposite party had already applied for the grant of the Completion Certificate/Occupancy Certificate.

5.      The complaint has also been resisted on some other grounds which this Commission has already rejected vide its order dated 22.4.2019 in CC/1639/2017 - Ajai Kumar & Anr. Vs. M/s Supertech Limited, which to the extent it is relevant reads as under:-

“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.      In the present case, the first allotment letter promising delivery of possession inclusive of grace period came to be issued on 14.5.2013 whereas the second allotment letter in respect of the same unit came to be issued on 20.8.2014. The order by the National Green Tribunal had been passed on 11.1.2013 whereas the writ petitions were disposed of by Allahabad High Court on 21.10.2011. Therefore, the orders passed by the NGT as well as the orders passed by the High Court were very much in the knowledge of the opposite party at the time the allotment letters came to be issued promising a particular time frame for the delivery of possession.

7.      The learned counsel for the opposite party submits that the Special Leave Petitions against the order of the Allahabad High Court were pending before the Hon’ble Supreme Court and came to be disposed of only on 14.5.2015. That, however, would of no consequence since the pendency of the SLPs before the Hon’ble Supreme Court did not come in the way of the opposite party going ahead with the construction of the Villas in this project.  In the present case, the opposite party is yet to obtain the requisite Occupancy Certificate in respect of the Villa allotted to the complainant.

8.      The issue as to whether a consumer complaint is barred after enactment of RERA is no more res integra in view of the decision of the Hon’ble Supreme Court dated 9.8.2019 in W.P.(C)43/2019 & connected matters - Pioneer Urban Land and Infrastructure Ltd. & Anr. Vs. Union of India & Ors. [2019 SCC Online SC 1005] and the decision of the Hon’ble High Court of Delhi in M/s M3M India Pvt. Ltd. & Anr. Vs. Dr. Dinesh Sharma & Anr. [CM(M) 1244/2019 & CM Appl. 38052-38053/2019 decided on 4.9.2019.

9.      I therefore, hold that the complainant is entitled to possession of the allotted Villa in a time-bound manner alongwith appropriate compensation. The complaint is therefore, disposed of with the following directions:-

1. The opposite party shall obtain the requisite Occupancy Certificate in respect of the Villa allotted to the complainant and then deliver its possession to him on or before by 31.3.2020 as according to the learned counsel for the opposite party they need 3-4 months for this purpose.

2. The opposite party shall pay compensation, in the form of simple interest @ 8% per annum on the entire amount paid till 1.3.2014  w.e.f. that date i.e. w.e.f. 1.3.2014 till the date on which the possession is offered   in terms of this order. The compensation on the amount which was paid after 1.3.2014 shall be payable w.e.f. the date of payment till the offer of possession.

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

4. The balance principal amount, if any, payable by the complainant to the opposite party shall be adjusted out of the compensation payable to him in terms of this order.

5. The balance compensation, if any, shall be paid at the time of offering possession of the Villa.