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

                The complainant booked a residential villa with the opposite party in a project namely ‘Alder Grove’, Nirvana Country-2 in Sectors 71 & 72 of Gurgaon.  Vide allotment letter dated 28.12.2010, Villa No. AG-0204 (Simplex) in the aforesaid project was allotted to the complainant  for a consideration of Rs.28768717/-.  The parties then executed a buyers agreement dated 24.2.2011, incorporating  their respective obligations in respect of the aforesaid allotment.  In terms of Clause 4.a(i) of said agreement, the possession of the villa was to be offered within 24 months of its execution, subject, of course, to force majure circumstances.  The possession, therefore, ought to have been offered to the complainant by 25.2.2013.  The grievance of the complainant is that the possession was not offered to him, despite he having already paid Rs.1,84,57,758/- to the opposite party.  The complainant is, therefore, before this Commission, seeking refund of the aforesaid amount  along with compensation etc.

2.      The opposite party did not file its written version and therefore, its right to file the said written version was closed vide order dated 29.08.2017.

3.      I have heard the learned counsel for  the complainant and have considered the affidavit filed by the complainant by way of evidence.

4.      The allotment letter and the buyers agreement filed by the complainant show the allotment made to him and also show that the possession of the villa ought to have been offered to the complainant   by 25.2.2013. The affidavit filed by the complainant proves the payment made by him to the opposite party. Since the OP has not offered possession to the complainant, he is entitled to seek refund of the amount paid by him along with appropriate compensation.

5.      Though no written version has been filed by the OP in this case, several other consumer complaints pertaining to this very project have alreadybeen allowed by this Commission. A reference in this regard may be made to Aditya Mishra & Anr. Vs. M/s. United Ltd., in C.C. No. 382 of 2015 and connected matters decided on 03.5.2016 , Ved Prakash Saini Vs. M/s. Unitech Limited C.C. No. 197 of 2015 decided on 29.2.2016 and C.C. No. 1530 of 2016 Ms. Madhu Garg Vs. M/s. Unitech Limited decided on 11.10.2017.

          The decision of this Commission in Aditya Mishra (supra) to the extent it is relied upon reads as under:

“2.  The complaints have been opposed by the opposite party, primarily on the grounds, which this Commission has repeatedly rejected in a number of Consumer Complaints, such grounds being the delay on the part of the authorities in according approvals, shortage of labour due to Commonwealth Games and implementation of schemes such as National Rural Employment Guarantee Scheme and Jawahar Lal Nehru National Urban Renewal Mission.  It is also alleged that by an order dated 16.7.2012, Punjab & Haryana High Court had stopped the usage of ground water for construction purposes and had permitted use of only treated water from the available Sewerage Treatment Plant but sufficient water from the Sewerage Treatment Plant was not available.  Another reason given by the opposite party for the delay in completion of the construction is the Notification issued by the Ministry of Environment and Forests, barring excavation of the top soil for manufacturer of bricks and consequent shortage of the bricks in the Region and restriction on mining in the Aravali Region which resulted in shortage of sand, which is a raw material used on the construction activities.  It is also claimed that Government of India had placed restriction and prohibition on new projects without obtaining the requisite environmental clearance and there was delay on the part of the Government in constitution of the Environment Impact Assessment Authority. It is also alleged in the reply that the opposite party is obliged to pay only agreed compensation of Rs.50/- per sq. yds for the period the possession has been delayed.

3.  Vide order dated 02.5.2016, this Commission disposed of a number of Consumer Complaints namely Cap. Gurtaj Singh Sahni Vs. Unitech Limited, Consumer Complaint No.603 of 2014 and connected matter, where the opposite party has delayed the delivery of the possession in the project namely Espace Premier, Unitech Nirvana Country-2, Gurgaon, Haryana,  in the same Colony Nirvana Country II in Sector 71 and 72 of Gurgaon. Those complaints were resisted on almost identical grounds. Rejecting such contentions, this Commission inter-alia observed and held as under:

          6. The next question which arises for consideration is the quantum of compensation which should be paid to the complainants for the delay in completion of the villas. As far as the prohibition on use of underground water in construction is concerned, the learned counsel for the complainant has drawn my attention to the order dated 21.08.2012 passed by a Divisional Bench of Punjab & Haryana High Court in Civil Writ Petition No. 20032 of 2008 wherein the High Court noted that the public notice issued under Section-5(3) of the Environment Protection Act, 1986 was published in the newspaper on 26.12.2000. It further shows that the said notice had imposed a complete ban upon the use of underground water in the construction without prior approval of the competent authority. It was noted by the High Court that despite publication of the aforesaid notice, the builders continued to use underground water for construction purposes. If there was a complete ban on use of underground water for construction and the said prohibition was notified on 26.12.2000, the opposite party must have taken into account, the impact of the said prohibition while entering into Buyers Agreements with the complainants. Therefore, it is not open to the opposite party to rely upon the said prohibition in order to justify the delay in construction of the villas sold to the complainants. The opposite party knew at the time of entering into agreements with the complainants that it will not be able to use underground water for construction of the villas and therefore, will have to make alternative arrangements from authorized sources for making the water available for the said construction. Therefore, the aforesaid prohibition on use of the underground water for construction purpose does not justify the delay in completion of the construction. In any case, no material has been placed by the opposite party on record to show that efforts were made by it during the relevant period to procure water from alternative sources but it was unable to obtain the water from the said sources. More importantly, in the Buyers Agreement executed between the parties, it was not disclosed to the buyers that since no underground water can be used for construction purpose, the developer will have to arrange water from alternative sources and in case it is not able to arrange water, the construction would be delayed and in that case, it will not be held responsible for the delay in completion of the construction.

6.      The learned counsel for the complainant having obtained instructions from the complainant on telephone states that the complainant is restricting his claim to the refund of the principal amount paid by him, along with compensation in the form of simple interest @ 10% per annum, in terms of Clause 4.e of the Buyers Agreement, which reads as under:

          “4.e Inability to offer Villa:

          That if for any reason whatsoever the Developer is unable to offer the aforesaid villa to the purchaser, as agreed herein, the developer may offer the purchaser(s) an alternative property or refund the amount in full with simple interest @ 10% per annum.  The developer shall not in such an eventuality be liable to pay any other charge of compensation”.

7.      For the reasons stated hereinabove the complaint is disposed of with the following directions:

(i)      The opposite party shall refund the entire amount of Rs.1,84,57,758/- to the complainant, alongwith compensation in the form of simple interest @ 10% per annum on that amount from the date of each payment till the date of full refund along with compensation in terms of this order.

(ii)      The opposite party shall pay 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.