1. The present Consumer Complaints have been filed under Section 21(a) (i) of the Consumer Protection Act, 1986 (for short “the Act”) by the Complainants against the Opposite Party, M/s New Okhla Industrial Development Authority (hereinafter to be referred to as “the Opposite Party”) seeking a direction to them to either construct the proper drainage system to stop sewage water flow from the villages, namely Sadarpur and Chhalera Bangar, District Gautam Budh Nagar (U.P) to her plot or to allot an alternative plot or to refund the deposited amount towards cost of Plot with interest and compensation. 

2. Since the facts involved in these Complaints are similar except for minor variation in the Unit Numbers and their Sale Consideration, these Complaints are being disposed of by this Common Order. However, for the sake of convenience, the facts have been taken from the Consumer Complaint No. 669 of 2020.

3. Brief facts as narrated in the Complaint, are that the Opposite Party which is a Development Authority has floated a Scheme for allotment of Residential Plots in the year 2004 in the city of Noida. The Complainant, Smt. Shashi Prabha applied for allotment of a Residential Plot admeasuring 300 Sq. Mtrs. under the said scheme. In response to her Application, she was allotted Plot No. H-029 in Sector 44 of Noida for a total Sale Consideration of ₹1,18,80,000. The Complainant entered into a Registered Lease Deed with the Opposite Party Authority on 15.12.2010.  As per the policy of the Opposite Party, the owner of the Plot was required to erect and complete building on the leased land within a period of two years from the date of the execution of the registry of the lease deed and to also obtain Completion Certificate otherwise the owner was liable to pay penalty in terms of the policy. The Complainant got sanction plan on 12.04.12 and got water and sewer connection also on the same day. Thereafter, Opposite Party Authority issued structural approval and Occupancy Certificate. No Dues Certificate was also issued by the Opposite Party to the Complainant on 24.12.2013 on payment of outstanding amount. 

4. According to the Complainant, the investment of ₹40 lakh made by her on the construction of the Plot No. H-029 went in vain as the whole structure of the Plot got unstable, damaged and the whole foundation became weak as the roof of the Plot broke down on account of sewer water and improper drainage System. There was also water logging as a result of which the entire construction fully submerged in sewage water.  It is stated that because of illegal excavation of soil there are 5 to 10 ft. deep pits in the Plot and other adjoining Plots. The total area around the Plot in H Block looks like a small dry pond. 

5. Upon receiving the Lease Demand Letter from the Opposite Party, the Complainant visited the Plot site and found that area around the Plot No. H-029, Sector 44, Noida has become a lake site due to flow of sewerage drain water from the adjoining villages.  On enquiry, the Complainant came to know that complaint of the same grievance had already been made by one of the owners of Plot in H Block only on 27.06.2018 requesting the Authority to take proper action and to develop the site but the Opposite Party Authority did not take any action on the complaint. However, the Opposite Party was continuously compelling the Complainant to pay a sum of ₹9,76,504/- towards lease rent including interest for the Plot. The Complainant tried to pump/drain out the sewerage water from the Plot but the water was continuously flowing from the neighbouring villages and recollecting in the site of the Plots at H Block.   It is alleged that despite number of complaints the Opposite Party did not take any action to develop the Plot Area and instead made an illegal demand of ₹9,76,504/- as lease rent.  It is averred that the Opposite Party was duty bound to provide the living conditions in order to survive the complainant in the suit premises in question and demand of ₹9,76,504/- by them was completely illegal and arbitrary.  The entire Block H containing 78 Plots, has become a pond and no further construction or living can be made in the Plot till the entire water/sewage water is drained out and the same is repaired. The Opposite Party has completely failed to provide the basic amenities of Sewer to avoid entry of water into the Plots from the road. The Complainant is not in a position to access her plot due to absence of amenities of hygiene, gated colony, security and prevent stray animals to roam around freely in the Block and because of deposit of heaps of garbage. Hence, alleging deficiency in service on the part of the Opposite Party Authority, the Complainant filed the present Consumer Complaint seeking following relief:-

(i) Direct the Opposite Party to construct the proper drainage system so that sewage water from the Village Sadarpur and Village Chhalera Bangar District Gautam Budh Nagar (U.P), stops flowing into the Plots of the Complainant;

OR

(ii) Change the plot of the Complainant from H-Block, Sector-44, Noida to any other Block of Sector - 44 Noida or any other Sector of similar size;

 

OR

(iii) To refund the amount of ₹1,18,80,000/- along with 18% interest for the financial loss to the Complainant;

 

(iv) To direct the Opposite Party to make the payment of ₹40,00,000/- towards the construction cost, to the Complainant;

 

(v) The demand for the lease amount to be waived off;

(vi) Provide the proper access to the plot so that the Complainant can construct his house and use the Plot;

 

(vii) Compensation of ₹30,00,000/- for mental torture and harassment;

(viii) Cost of the litigation ₹2,00,000/-. 

(ix) Pass such further Order or Order as deem fit and proper in the facts and circumstances of the case;

 

06. Upon notice, the Complaint was resisted by the Opposite Party Authority by filing its Written Statement and raising the preliminary issue that the Plot in question was allotted to the Complainant on 15.12.2010 and the possession has been handed over on 03.02.2011, however, the present Complaint has been filed only on 17.07.2020 and as such the same is hopelessly time-barred. Further, no explanation whatsoever has been offered by the Complainant for condoning the delay of 9 years in filing the Complaint. 07. On merits, it is contended, inter-alia, that the Complainant defaulted in making the payment of Lease Rent from the year 2014 and, therefore, a Demand Notice dated 15.10.2019 for a sum of ₹9,76,504/- was sent to the Complainant. There is no written on oral complaint about drainage water system as alleged in the Complaint from 2014 to 2019 and only after issuance of the Demand Notice, the Complainant raised the issue of water logging. There are around 78 plots in H Block, Sector 44, Noida, UP and many families are residing there but no similar Complaint has been made by any of the residents of H Block, Sector 44, U.P. It is further contended that the facility to pay the premium in installments had been given subject to payment of interest @15%, 14% and 12% compounded half yearly and as such the price of the plot, in case the installment facility is availed, would be premium plus interest accrued thereupon till the payment. That on visiting the site on 12.11.2020, the officials of the Opposite Party Authority did not find any such problem in relation to sewage overflow. The Occupancy Certificate issued to the Complainant on 08.01.2013 clearly specified that the building structure was fit for residence in terms structural strength, fire safety and cleanliness both inside and outside building.  The Complainant had made false allegation of overflowing drains from adjoining villages like Sadarpur, Chhalera Banger etc. 

08. It is pertinent to mention here that during the proceedings in the Complaint, the Opposite Party Authority was directed to keep the Plot No. 276, Block D, Sector 47, Noida in reserve for alternative allocation if the Complainants succeed in these complaints. 

09.   I have heard the learned Counsel for the parties at some length and also perused the material available on record, evidence adduced by the parties as well as the written submissions filed by them.

10. Learned Counsel appearing for the Complainant vehemently submitted that Plot No. H-29, Sector 44, Noida was allotted to the Complainant on leasehold basis and as such the Opposite Party being the owner and having proprietary rights over the property was duty bound to maintain and develop the locality at all times to ensure that it remains fit for residential purpose. And for the said purpose only, the Opposite Party is demanding the lease rent from the Complainant. The Complainant had withhold the payment of lease rent since the Opposite Party despite repeated requests had failed to find out the solution of sewerage water due to which the Plot in question has submerged in the water. It is further urged that the Complainant is willing to pay lease rent subject to Opposite Party taking permanent measures to stop the sewage water to the H Block or lying proper drainage system. It is rigorously contended that the Complainant for the first time saw collecting of sewerage drainage water in and around the area of the Plot in question only on 15.10.2019 when he visited the Plot site. Hence, the cause of action has arisen in favour of the Complainant for the first time on 15.10.2019. The Complainant made all the efforts to flush out the drainage water from the Plot area but the water kept flowing in from the adjoining villages. Since, the lease rent was payable annually, the cause of action was also a continuing one. The Opposite Party has filed a false Inspection Report of inspection conducted by their own officials as they had not shown the affected plot including the plot allotted to the Complainant in their report. The Inspection ought to have been conducted by an Independent Agency. It is further contended that despite opportunity having been granted, the Opposite Party has not filed the Affidavit in terms of Order dated 17.03.2021 and 05.01.2022 indicating vacant and unalloted Plots in the Area in question and rather they tried to suggest that adjacent plots in the same block and sector suffered from the deficiency. It is also urged that the Complainant is ready and willing to pay difference of the alternative plot and, therefore, the Opposite Party be directed to allot an alternative plot to the Complainant. 

11. Per contra, Learned Counsel appearing for the Opposite Party vigorously submitted that as per the terms of the Lease Deed, the Complainant was duty bound to pay the premium and annual lease rent for the Plot allotted to her. He further urged that at the time of taking the possession of the Plot, the Complainant has not raised any dispute whatsoever and in fact the Occupancy Certificate dated 08.01.2013 clearly stipulated that building structure is fit for residence in terms of structural strength, fire safety and cleanliness both inside and outside the Building. The Complainant has not paid the lease rent after the year 2014 and to avoid her liability to pay lease rent in terms of Demand Notice dated 15.10.2019, the Complainant has filed the present Complaint with frivolous allegations. The Complaint is hopelessly barred by limitation as no deficiency in service was pointed out by her till the Demand Notice dated 15.10.2019 for a sum of ₹9,76,504/- was raised by the Opposite Party towards outstanding lease rent. The Complaint is not maintainable before this Commission for want of pecuniary jurisdiction as the Complainant in her rejoinder has categorically admitted that her cause of action has arisen only after receipt of Demand Notice of Annual Rent on 15.10.2019. Placing reliance upon the decision of the Hon’ble Supreme Court in the case of State Bank of India Vs. B.S. Agricultural – 2009 (5) SCC 121, the counsel for the Complainant pleaded that one sleep over the right, cannot extend the period of remedy before the Court. No explanation has been offered by the Complainant for not paying the Lease Rent after the year 2014. He further scrupulously added that as per Clause 14 of the terms and conditions of the “Scheme for Allotment of Residential Plots Scheme Code 2004 (1) for General Category”, the allotment was done on the basis of “As is where is Basis” and further under the terms of the Scheme or Lease Deed dated 15.12.2010, there was no provision for any exchange and/or amalgamation of allotted Plot with any other Plot. The reserved Plot No. 276, Block D, Sector 47, Noida was not the part of the Scheme Floated in the year 2004 and further the area of the said Plot is 450 Sq. Mtr., however, the Complainant was allotted a Plot admeasuring 300 Sq. Mtr. It is a settled legal position that what cannot be done directly, cannot be done indirectly. In the Inspection Report dated 12.11.2020 submitted by the Opposite Party, there is no complaint of any sewer/water flow on the plot in question. The Survey Report dated 21.04.2021 filed by the Complainant cannot be relied upon as the author of the report has not filed affidavit in support thereof and further the report itself states that “this document is for information purposes and not for legal purposes”.

CONSUMER COMPLAINT NO. 777 OF 2022

12. In this Complaint, one Mr. Ramesh Kalkal was allotted a Residential Plot No. H-48, Sector 44, Noida admeasuring 300 sq. mtrs. on 28.05.2009 for a total sale consideration of ₹1,18,80,000. The said Ramesh Kalkal sold the allotted Plot to the present Complainant, Shri Sunil Gupta. Accordingly, he applied for transfer of the Plot to the Opposite Party Authority in his name and paid the transfer fee. Vide Transfer Memorandum dated 30.01.2012, the Plot was transferred in the name of the Complainant.  After transfer of the Plot, the Complainant paid the balance instalments and paid a total sum of ₹2,16,52,177/-  including lease rent, interest on lease rent, extension charges, registry fee, stamp duty for lease deed, transfer charges etc.  According to the Complainant, when he took the possession of the Plot, the soil of the plot was already dug and there were around 5 – 10 ft. deep pits in the allotted plot as well as adjoining plots due to the illegal extraction of ground soil. It is submitted that the Complainant had completed the construction over the plot as per Rules and the Sale Deed was executed in his favour on 30.01.2012.  It is averred that the boundary of the H Block is adjoining to the villages, namely, Sadarpur and Chhalera Banger and when the Complainant visited the site on 27.06.2018, he found that the entire H Block was sub-merged into water and the entire chunk of plots became a lake due to collection of sewage water flowing from the aforesaid villages.  The Complainant tried to flush out the water from the plot but it is continuously flowing from the Villages. The Complainant lodged various complaints with the Opposite Party Authority to make some arrangements so that he could start the construction on the Plot but no action was taken by the Opposite Party Authority.   On 15.07.2018, the Complainant made a written request to the Opposite Party Authority either to take suitable action to stop the sewer water coming from the adjoining villages or to allot an alternative plot.  But instead of taking any concrete action, the Opposite Party raised a demand of ₹15,81,377/- towards lease rent.  Feeling aggrieved, the Complainant filed the Complaint before this Commission with aforesaid identical reliefs. 

13. In this Complaint, during the proceedings, the Opposite Party Authority was directed to keep the Plot No. 274, Block D, Sector 47, Noida in reserve for alternative allocation if the Complainants succeed in these complaints. 

14. In this Complaint also, learned Counsel appearing for both the parties have made almost the similar submissions. 

15. Having bestowed my thoughtful consideration to the rival contentions of the Learned Counsel for the Parties, I am of the considered view that none of the submissions made by the Learned Counsel for the Opposite Party Authority has leg to stand.  

16. Under the heading of “Reply on Merits”, in its Written Statement to the Complaints filed by the Complainants, the Opposite Party Authority has mentioned as under:-

“ That in reply to para 2 of the Complaint, it is submitted that the Respondent, New Okhla Industrial Development Authority” is incorporated under the U.P. Industrial Development Act, 1976. That as per Section 6 of the Act, the object of the Respondent shall be to secure the planned development of the Industrial development areas in the following manner:-

 

(i) to acquire land in the Industrial Development Area by agreement or through proceedings under the Land Acquisition Act, 1894, for the purposes of the Act;

 

(ii) To prepare a plan for the development of the Industrial Development Area;

 

(iii) To demarcate and develop sites for industrial, commercial and residential purposes according to their plan;

 

(iv) To provide infrastructure for industrial, commercial and residential purposes;

 

(v) To provide amenities;

 

(vi) To allocate and transfer either by way of sale or lease or otherwise plots of land for industrial, commercial or residential purposes;

 

(vii) To regulate erection of buildings and setting up of industries; and

 

(viii) To lay down the purpose for which a particular site or plot of land shall be used, namely for industrial or commercial of residential purpose or any other specified purpose in such area;

 

17. In both the Complaints, there is no dispute that both the Complainants were allotted Residential Plots on leasehold basis. They had also paid the entire Sale Consideration to the Opposite Party Authority and after getting sanctioned the Building Plan from the Competent Authorities they completed the construction on the allotted Plots as per the terms of the Scheme. 

18. Upon receiving the demand from the Opposite Party Authority for payment of Lease Rent, the Complainants visited the site and found that the condition of the site was deplorable and it was not habitable as the entire area of H Block including the allotted Plots, was looking like a pond because of logging of sewage and drain water which was coming from the adjoining villages. The said water logging had resulted in causing damage to the foundation of the Residential Plots constructed by the Complainants. The Residential Houses had literally submerged in water due to lack of proper drainage system in the locality. It is very pity on the part of the Complainants that though they had invested a huge amount of ₹1,18,80,000/- and ₹2,16,52,177/-  towards Sale Consideration of the Plots in question and had also spent a huge amount on construction on the allotted plots but still they are not able to enjoy the facility of residence in the said property in the absence of the proper development of the area and non-provision of amenities required for living a peaceful life under the shelter of own house. In terms of Section 6 of the U.P. Industrial Development Act, 1976, it was the duty of the Opposite Party Authority to provide the basic amenities which are important part and parcel of any housing scheme and without which it is not easy to survive. It is well settled law that while floating a Housing Scheme inviting the applications of the Buyers for allotment of Residential Plots, the Builder/Developer/Statutory Authority is legally bound to provide all the amenities promised by way of brochure/Scheme etc. required for smooth and comfortable life.  The Hon’ble Supreme Court in the case of Wg. Cdr. Arifur Rehman Khan and Areya Sultan & Ors. Vs. DLF Southern Homes Pvt. Ltd.’ - Civil Appeal No. 6239 of 2019 - decided on 24.08.2020 while dealing with the question of providing of basic amenities has held as under:-

“ Developers sell dreams to home buyers. Implicit in their representations is that the facilities which will be developed by the developer will provide convenience of living and a certain lifestyle based on the existence of those amenities. Having sold the flats, the developer may find it economically unviable to provide the amenities. The flat purchasers cannot be left in the lurch or, as in the present case, be told that the absence of facilities which were to be provided by the developer is compensated by other amenities which are available in the area. The developer must be held accountable to its representation. A flat purchaser who invests in a flat does so on an assessment of its potential. The  amenities which the builder has committed to provide impinge on the quality of life for the families of purchasers and the potential for appreciation in the value of the flat. The representation held out by the developer cannot be dismissed as chaff.”

18. In the present Consumer Complaints, the Opposite Party Authority has completely failed to develop the area in question though the scheme was floated in the year 2004 and the more surprising and shocking fact is that on the one hand, the Opposite Party Authority had failed to develop the area by providing the proper sewerage and drainage system and other necessary facilities in the area around the allotted plots but on the other hand they had made a huge demand of Lease Rent as they are the owner of the property in question. The Complainants cannot be held guilty for non-payment of Lease Rent after 2014 as there was no development in the area and the site was not in a habitable condition. The submission made by the Learned Counsel for the Opposite Party that the Complaints are barred by limitation and that the plots were purchased on “As is where is Basis” do not hold the water.  Though the Complainants got the possession of the allotted Plots in the year 2013-2014 but since the area was not developed by providing all the basic facilities and amenities, there was a recurring cause of action in terms of the law settled by the Hon’ble Supreme in the case of Meerut Development Authority v. M.K. Gupta,  IV (2012) CPJ 12 (SC). I also do not find any merit in the submission of the Learned Counsel for the Opposite Party that the plots in question were purchased by the Complainants on “As is where is Basis”. 

19.    Recently, the Hon’ble Supreme Court in the case of Debashis Sinha Vs. Vs. R.N..R Enterprises – (2023) 3 SCC 195 wherein the Complainants had obtained the possession and completion certificate, has held that the claim of basic amenities is not barred by limitation and further the Buyers cannot be deprived from the remedy on the ground that the Buyers ought to have known what they were purchasing.  The relevant paragraph of the said decision are as under:-

“    One entire paragraph in the order has been devoted by the NCDRC to highlight that the project was not that huge and talk of common areas and facilities on a grand scale was quite misplaced. An admission made by the appellants themselves in the complaint has been referred to but we have not been able to trace any admission of the complainants that the respondents promised not to deliver substantial common areas and common facilities. Be that as it may, what the NCDRC omitted to bear in mind was that the appellants were allured to purchase flats of the nature and kind together with facilities and amenities as attractively published in the brochure/advertisement; hence, whether the project was huge or otherwise was absolutely beside the point. It was the duty of the NCDRC to ascertain, based on the materials on record, whether if at all and to what extent facilities and amenities as promised were offered and/or whether there was any deficiency of service. We have not found any categorical findings in this regard, although there are unambiguous findings that the NCDRC disapproved the conduct of the respondents.   (Emphasis supplied)

      We have failed to comprehend as to what the NCDRC meant when it observed that the appellants “ought to have known what they were purchasing”. More often than not, the jurisdiction of the consumer fora under the C.P. Act is invoked postpurchase. If complaints were to be spurned on the specious ground that the consumers knew what they were purchasing, the object and purpose of the enactment would be defeated. Any deficiency detected post-purchase opens up an avenue for the aggrieved consumer to seek relief before the consumer fora. The reasoning of the NCDRC is, thus, indefensible. Indeed, the appellants had purchased their respective flats on payment of consideration amounts as per market rate and there was due execution and registration of the deeds of conveyance preceded by agreements for sale and these instruments did indicate, inter alia, what formed part of the common facilities/amenities; however, the matter obviously could not have ended there. Whether the appellants had been provided what the respondents had promised did survive for consideration, which does not get reflected in the impugned order. 

      NCDRC, in our opinion, might have missed to appreciate the present day realities of life. Now-a-days, flat owners seldom purchase flats with liquid cash. Flats are purchased on the basis of finances being advanced by banks and other financial institutions. Once a flat is booked and the prospective flat owner enters into an agreement for loan, instalments fall due to be paid to clear the debt irrespective of whether the flat is ready for being delivered possession. The usual delays that are associated with construction activities result in undue anxiety, stress, and harassment for which many a prospective flat owner, it is common knowledge, even without the project/flat being wholly complete is left with no other option but to take possession. Whether, upon taking possession, a flat owner forfeits his/her right to claim such services which had been promised but are not provided resulting in deficiency in services is a question that the NCDRC ought to have adverted to.

     Once the NCDRC arrived at a finding that the respondents were casual in their approach and had even resorted to unfair trade practice, it was its obligation to consider the appellants’ grievance objectively and upon application of mind and thereafter give its reasoned decision. If at all, the appellants had not forfeited any right by registration of the sale deeds and if indeed the respondents were remiss in providing any of the facilities/amenities as promised in the brochure/advertisement, it was the duty of the NCDRC to set things right.” 

20. I also do not find any substance in the claim of the Opposite Party Authority that there are 78 plots in H Block, Sector 44 Noida and many families are residing there but no claim regarding logging of water has been made by any of the Resident.  In fact, Mr. Sunil Kumar, the Complainant in Consumer Complaint No. 777 of 2020 has lodged a complaint with the Opposite Party on 15.07.2018 wherein it has been specifically mentioned that there is problem of water drainage in the entire H Block and there was illegal soil extraction by soil mafia.  He requested either to resolve the problem or to allot him an alternative plot. From a bare perusal of the photographs produced on record by the Complainant, it would be crystal clear that the area around the allotted plots is not properly developed by the Opposite Party and it is not habitable at all. The conditions had rendered living there as unsafe and unhealthy due to collection of sewerage water flowing from the adjoining 

villages.  There were also heaps of garbage and construction debris.  The Opposite Party are levying Lease Rent on the plots so allotted to the Complainants on leasehold basis.  So they are duty bound to ensure that the leasehold properties for which they are charging lease rent are in habitable conditions and all the amenities and facilities are being provided in accordance with their statutory duties and functions. The Complainants had also got survey of the site in question from Muneesh Associates Pvt. Ltd. and their report dated 23.04.2021, they had submitted that the conditions of the site are in terrible conditions and it is not a habitable pace.  They have further stated that there is no entry gate, no boundary, land is being misused by village people, land is full of pits and wild vegetation, there is no electricity, no sewerage system and sewerage water is filled in the park in the area in question. It is further stated that drains are choked with garbage and sewerage water. The said report cannot be denied in view of the photographs filed along with the Report. 

21. For the aforesaid reasons, I am of the considered opinion that since the conditions around the area where the Complainants had been allotted the Plots in question are not habitable and hygienic; the Complainants cannot live with their families unless the land is fully developed by the Opposite Party and all the basic amenities are provided. Hence, the present Complaints are partly allowed in the following terms:-

22. Complaint No.669 of 2020

(i) The Opposite Party is directed to allot the alternative plot No. 276, Block D, Sector 47, NOIDA to the Complainant which was reserved for allotment vide Orders dated 26.02.2021 and 17.03.2021 on the original rates, within a period of four weeks from the date of receipt of a copy of this order.  

 

(ii) The Complainant shall be liable to pay the difference of the area of the alternative plot, if any, at the same rate on which Plot No. H-029 in Sector 44, NOIDA was allotted. 

 

(iii) The Opposite Party shall also be liable to pay costs of ₹50,000/- to the Complainant within the same period. 

 

23. Complaint No.777 of 2020

(i) The Opposite Party is directed to allot the alternative plot No. 274, Block D, Sector 47, NOIDA to the Complainant which was reserved for allotment vide Orders dated 26.02.2021 on the original rates, within a period of four weeks from the date of receipt of a copy of this order.  

 

(ii) The Complainant shall be liable to pay the difference of the area of the alternative plot, if any at the same rate on which Plot No. H-048 in Sector 44, NOIDA was allotted.

 

(iii) The Opposite Party shall also be liable to pay costs of ₹50,000/- to the Complainant within the same period.