JUSTICE V.K. JAIN (ORAL)

        IA/4924 to 4926/2016 (Directions)

The learned counsel for the complainants submits that the opposite party despite knowing that Writ Petition which it had filed before the Punjab and Haryana High Court had been dismissed before the written version came to be filed by it, concealed the aforesaid fact while filing its written version, thereby giving an impression that the said Writ Petition was still pending. The learned counsel for the opposite party, however, submits that it was an inadvertent omission not to refer to the dismissal of the Writ Petition while filing the written version. He has pointed out that the factum of the dismissal of the Writ Petition and filing of an appeal against the order dismissing the Writ Petition has been duly disclosed in the affidavit filed by the opposite party by way of evidence. Considering all the facts and circumstances including that the factum of the dismissal of the Writ Petition was disclosed in the affidavit filed by way of evidence, I do not deem it appropriate to initiate any action against the opposite party or its directors for the aforesaid omission. The applications are, therefore, dismissed.

         CC/1232/2015

The complainants who are husband and wife, booked a residential flat with the opposite party  in a project namely Anthea Floors which the said OP was to develop in Sector 70 of Gurgaon.  Vide allotment letter dated 17.8.2012, the opposite party allotted Flat No.8 in the aforesaid project to them, for a total consideration of Rs.1,30,78,667/-.  The parties then entered into a Buyer’s Agreement on 20.3.2013, incorporating their contractual obligations.  As per clause 4(a)(i) of the Buyer’s Agreement, the possession was to be delivered within 36 months of the execution of the Buyers Agreement, subject of course to force majeure circumstances.  .  The grievance of the complainants is that despite they having already paid a sum of Rs.40,39,622/- to the OP , the possession of the flat has not been offered  to them.  The complainants are, therefore, before this Commission seeking possession of the flat allotted to them or in the alternative  refund of the amount paid by them, along with compensation in the form of  interest @ 18% per annum.

2.      The complaint has been resisted by the opposite party. It is alleged in the written version that the project Anthea Floors was a part of licensed plotted colony, namely, Nirvana Country III falling under License No.66 of 2011 dated 21.7.2011. Thus, the layout plan for the said colony had been approved on 21.7.2011. The opposite party applied for demarcation-cum-revised layout plan for Nirvana Country III on 19.9.2011. However, the said revised layout plan was not approved since Haryana Government was demanding  charges, which the builders challenged before the Punjab and Haryana High Court by way of Writ Petition No.15537 of 2015.

          It is also stated in the affidavit filed by the opposite party by way of evidence that Govt. of India, Ministry of Environment and Forests had made it mandatory to obtain environmental clearance in respect of certain projects vide notification dated 14.9.2006 and the opposite party had submitted an application for obtaining the requisite environmental clearance in respect of Anthea Floors on 7.4.2012 but there was a delay on the part of the government authorities in granting the requisite clearance which came to be issued only on 10.1.2014. It is also stated in the said affidavit that as per clause 4(e) of the Buyer’s Agreement, in case the amount deposited by the complainants is to be refunded, the same would be refunded with simple interest @ 12% per annum and the prayer for refund with 18% interest is not maintainable.

3.      As noted earlier, the opposite party had the requisite approval to the layout of the project in which the allotment was made to the complainants, the said approval having been granted way back on 21.7.2011. The opposite party submitted the revised layout plan on 19.9.2011. Despite a revised layout plan having already been submitted by that date, the opposite party did not disclose in the allotment letter issued to the complainant that they had submitted a revised layout plan for the project Anthea Floors on 19.9.2011 and the said revised plan was yet to be approved. If the opposite party wanted to develop the project only in accordance with the revised layout plan submitted on 19.9.2011, the aforesaid vital information ought to have been disclosed to the complainants at the time of booking of the flat.

          The Buyer’s Agreement with the complainants was executed on 20.3.2013. Even in the said Buyer’s Agreement, it was not disclosed that the opposite party did not intend to act upon the previously approved layout plan and had submitted a revised layout plan to the TCPO, which was yet to be approved. Had that been disclosed to the complainants, it is quite possible that they would have not have entered into the said agreement with the opposite party since, they could not have been sure that the opposite party which was yet to receive approval to the revised layout plan, would be able to deliver possession of the flat within 36 months from the date of the Buyer’s Agreement.

4.      The revised layout plan, according to the opposite party could not be approved by Haryana Government since the External Development Charges (EDC) being demanded by the said Government were not acceptable to the opposite party which filed a Writ Petition before Punjab and Haryana High Court challenging the said charges. In my view, considering the contractual obligation incorporated in the Buyer’s Agreement to deliver possession within 36 months from the date of the said agreement, the opposite party ought to have paid the EDC and obtained approval to the revised layout plan instead of waiting for the outcome of the Writ Petition challenging the said charges. The opposite party even after paying the EDC as demanded by the Haryana Government could have challenged the said charges and sought refund from the Government. Such a course of action, however, was not adopted by the opposite party.

5.      Admittedly, the Writ Petition filed by the opposite party challenging the demand of EDC has been dismissed by Punjab and Haryana High Court on 15.12.2015 though a Special Leave Petition against the aid order has been filed before the Hon’ble Supreme Court and a notice in the said petition has already been issued. The dismissal of the Writ Petition by Punjab and Haryana High Court implies that there was no merit in the challenge to the demand of EDC by Govt. of Haryana. Therefore, the failure of the Government to approve the revised layout plan is attributable solely to the decision of the opposite party not to pay the EDC and rather challenge the same by way of a Writ Petition. The complainants, in my view, cannot be made to suffer on account of the course of action adopted by the opposite party.

6.      As regards the delay in obtaining the environmental clearance, the opposite party knew before accepting booking from the complainants and allotting a flat to them that since the size of the project was more than 20,000 sq.ft. of built up area, environmental clearance in terms of the Notification dated 14.9.2006 would be necessary and the said clearance would be given only after the project was approved by State Environment Impact Assessment Committee and then by State Level Environment Impact Assessment Authority.  It was, therefore, necessary for the opposite party to either obtain the requisite environmental clearance before accepting the booking or at least inform the buyers that the construction would commence only after obtaining the requisite environmental clearance which they were yet to receive. This is particularly necessary in a case where the builder is promising delivery of the apartment in a time-bound manner linked with the date of the Buyer’s Agreement and not with the date on which the construction actually commences after obtaining all the requisite clearances. If such a disclosure is made to the buyer and still he chooses to make a booking knowing fully well that the builder may not  be held responsible for the delay to this extent it is attributable solely to the concerned environmental  authority, it will not be possible to hold the builder responsible for the delay in the aforesaid extent.

7.      More importantly in the present case even after obtaining the requisite environmental  clearance in January 2014, the opposite party has not even started construction of the flat which it had allotted to complainants. According to the learned counsel for the complainants even the excavation work at the site has not begun though the environmental  clearance came to be accorded about 2 years and 8 months ago. The aforesaid conduct of the opposite party in not even starting the construction for about 32 months after obtaining the requisite environmental  clearance clearly indicates that the delay in the project has occurred for reasons other than the time taken in obtaining the environmental  clearance.

8.      For the reasons stated hereinabove, I have no hesitation in holding that the delay in construction of the flat allotted to the complainants did not happen on account of reasons beyond the control of the opposite party.

9.      Clause 4(e) of the Buyers Agreement reads as under:

4.e Inability to offer floor:

That if for any reason whatsoever, the developer is unable to offer the allotted floor to the purchaser(s), as agreed herein, the developer will offer the purchaser(s) an alternative property in any complex developed, underdeveloped or proposed to be developed in the surrounding area/projects and if no alternate property is available the developer will refund the amount paid by the purchaser(s) in full with simple interest @ 12% per annum from the date of payment(s) by the purchaser(s).  The developer shall not in the event of such an eventuality be liable to pay any other damages, charges or compensation.

          It would thus be seen that since the OP was unable to develop the project in which flat was booked by the complainants, it ought to have offered an alternative property to them in a surrounding area/project.  If no alternate property was available, they ought to have offered refund of the amount which the complainants had paid to them along with simple interest @ 12% per annum from the date of payment.  Admittedly, neither an alternative property nor refund in terms of the above referred clause was offered to the complainants. 

10.    In my view, since the OP has not been able to offer the allotted flat to the complainants nor has it offered an alternative property in a surrounding area/project to them, it is liable to refund the entire amount received from the complainants along with interest @ 12% per annum from the date of payment till the date on which the said amount is refunded.  It would be pertinent to note here that on the last date of hearing, the complainants had restricted their claim to refund of the principal amount paid by them to the OP along with interest on that amount @ 12% per annum in terms of clause 4(e) of the Buyers Agreement.

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

(1)     The OP shall refund the entire principal amount of Rs.40,39,622/- to the complainants along with compensation in the form of simple interest @ 12% per annum from the date of the payment till the date on which the said amount along with compensation in the form of interest in terms of this order is refunded.

          (2)     The OP shall also pay Rs.10,000/- as the cost of litigation.

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