JUSTICE V.K. JAIN, PRESIDING MEMBER

This is a complaint instituted by a recognized Consumer Association, under Section 12(1)(b) of the Consumer Protection Act.  The complaint was instituted on behalf of the allottees of as many as 14 residential flats in a project namely “Upcountry”, which the opposite party Supertech Limited was to develop on plot TS1 in Sector 17A of Yamuna Expressway Industrial Development Area.  One allottee having settled with the opposite party, the complaint survives in respect of 13 allotments.  The following are the particulars of the allotments made to the persons on whose behalf this complaint continues:

2.     It would thus be seen that the possession of the allotted flats was to be delivered to the above referred allottees by different dates, falling in the year 2015.  Their grievance is that the possession has not even been offered to them despite they having made more than substantial payments to the opposite party, the payment made to the OP ranging between 81% to 95% except in case of Mr. Vivek Chandra, who has paid only 42% of the agreed sale consideration.  The complainant is therefore, before this Commission, seeking refund of the amount paid by the said allottees to the OP, along with compensation etc.

3.     The complaint has been resisted by the OP inter-alia on the grounds:

(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)   Though the OP had completed the constructions of several towers and had applied for the requisite Occupancy Certificate of the said Towers, the sanctioned plans were cancelled by YEIDA.  Later, the Government of Uttar Pradesh invalidated the cancellations of the sanctioned plans.

4.     This is also the case of the OP that one of the allottees
Mr. Vivek Chandra has defaulted in payment of amount of Rs.14,55,969/- despite email sent to him on 12.7.2017, providing the revised sanction letter etc. to him.  It has also been contended by the learned counsel for the OP that in view of the provisions contained in Section 79 of the Real Estate Regulatory Authority Act (RERA), this Commission lacks jurisdiction to entertain this consumer complaint.

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. 

7.     It was submitted during the course of arguments that the allottees other than Mr. Vivek Chandra had delayed payment of instalments for which interest is payable by them. The contention was that they having delayed the payment of instalments, they can have no grievance against the OP for the delay in offer of possession and are not entitled to refund of the amount paid by them to the OP.  I however, find no merit in this contention.  Three options were available to the OP if there was delay on the part of the allottees in making timely payment of the instalments.  The first option was to cancel the allotment, forfeit the Earnest Money and refund the balance amount to the allottees, provided that such forfeiture was otherwise justified in the facts and circumstances of a particular case.  The second option was to accept the delayed payment with interest whereas the third option was to accept the delayed payment without any interest by waiving the interest for the period the payment was delayed.  The OP, according to the learned counsel did not waive the interest for the delayed payment and the said interest, was adjustable at the time of the delivery of possession.  The OP thus accepted the delayed payments, subject to payment of interest by the concerned allottees.  Having condoned the delay by accepting late payment and not cancelling the allotments, the OP is not entitled to resist the claim for refund on account of the said delay.  In this regard, it has to be kept in mind that in the event of the complaint being allowed, the allottees would be entitled to interest only from the date they made payment to the OP and not from the date on which a particular instalment was payable by them.

8.     As far as the delay on the part of Mr. Vivek Chandra is concerned, it was an admitted position before me that demand was raised after the building plans had been cancelled by YEIDA but before the cancellation of the plans was allegedly invalidated by Government of Uttar Pradesh.  The building plan itself having been revoked at the time the said demand was raised, Mr. Vivek Chandra could not be expected to pay the demand raised after the said cancellation.  An allottee cannot be expected to keep on making payment even after the building plans in respect of the project in which the allotments had been made to him itself has been revoked, thereby putting a big question mark on the very fate of the said project.  A prudent allottee cannot be expected to keep on making further payments despite cancellation of the building plans and thereby putting more and more of his money into jeopardy.  Mr. Vivek Chandra had requested the OP on 26.6.2017 to refund the entire amount paid by him, he being no more interested in taking possession of the allotted flat.  Considering the delay which had already happened by that time, coupled with the cancellation of the building plan itself, Mr. Vivek Chandra, in my opinion, was justified in not making further payment and seeking refund of the amount, which he had already paid to the OP.  Though, the building plans, according to the OP were restored on 21.2.2017, there is no evidence of Mr. Vivek Chandra having been informed of the said restoration immediately thereafter or at any point of time before he sought refund of the amount which he had paid to the OP.  Moreover, even at that point of time, the OP was not in a position to deliver possession of the flat allotted to Mr. Vivek Chandra, within a reasonable period after his making the balance payment, though, the time for delivery of possession of the allotted flat had already expired way back in December, 2015.  The allottee cannot be expected to keep on making further payments, even after the timeline for the delivery of possession has expired.  It would be pertinent to note here that Mr. Vivek Chandra had been allotted a flat in Tower C-3 and admittedly the OP has not completed the construction of the said tower even till date.  It was admitted during the course of arguments that the OP is yet to apply for issuance of the part Occupancy Certificate in respect of Tower C-3 and F-1. 

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. 

10.   During the course of arguments, it was submitted by the learned counsel for the OP that they have obtained the part Occupancy certificate on 07.2.2019 during pendency of this complaint.  However, the part Occupancy Certificate in respect of Tower C-3 and F-1 has not even been applied.  The learned counsel for the complainant, on instructions stated that the complainants are not ready and willing to take possession of the allotted flats at this belated stage, there being delay of more than three years in obtaining the part Occupancy Certificate.  This is also their submission that they cannot be compelled to accept possession at such a belated stage and are entitled to refund of the amount paid to the OP, along with appropriate compensation.  They also submitted that since the amenities provided to them are still not available, they cannot enjoy the houses, even if possession is taken by them.  In support of their contention, they have relied upon the decision of the Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan Civil Appeal No. 12238 of 2018 decided on 02.4.2019.

        In Pioneer Urban Land & Infrastructure Ltd. (supra), the builder obtained the occupancy certificate on 23.7.2018 during pendency of the consumer complaint and offered possession on 28.8.2018.  This Commission vide its Judgment dated 23.10.2018, held that since the last date stipulated for construction had expired about three years before the issuance of the occupancy certificate, the flat purchasers could not be compelled to take possession at such a belated stage.  Rejecting the appeal filed by the Pioneer Urban Land & Infrastructure Ltd. (supra) against the decision of this Commission, the Hon’ble Supreme Court inter-alia held as under:

        “6.1  In the present case, admittedly the appellant – Builder obtained the Occupancy certificate almost two years after the date stipulated in the Apartment Buyer’s Agreement. As a consequence, there was a failure to hand over possession of the flat to the respondent – Flat Purchaser within a reasonable period.  The Occupancy Certificate was obtained after a delay of more than two years on 28.8.2018 during the pendency of the proceedings before the National Commission.

        In Lucknow Development Authority V. M.K. Gupta, this court held that when a person hires the services of a builder, or a contractor, for the construction of a house or a flat, and the same is for a consideration, it is a “service” as defined by Section 2(o) of the Consumer Protection Act, 1986.  The inordinate delay in handing over possession of the flat clearly amounts to deficiency of service. 

        In Fortune Infrastructure & Anr. Vs. Trevor D’Lima & Ors., this Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation.

        6.2   The Respondent – Flat Purchaser has made out a clear case of deficiency of service on the part of the Appellant – Builder.  The respondent – flat purchaser was justified in terminating the Apartment Buyer’s Agreement by filing the Consumer Complaint, and cannot be compelled to accept the possession whenever it is offered by the Builder.  The Respondent – Purchaser was legally entitled to seek refund of the money deposited by him along with appropriate compensation.

11.   Though,   there is no evidence of alternative houses having been acquired by the allottees on whose behalf this complaint is instituted, considering the abnormal delay of more than three years in obtaining the part occupancy certificate, the said allottees, in my view, cannot be compelled to accept possession at this belated stage and are entitled to refund of the amount paid by them to the builder with appropriate compensation.

12.   The learned counsel for the OP has relied upon the decision of this Commission in Randhir Singh & Anr. Vs. Omaxe Chandigarh Extension Developers (P) Ltd. in FA/06/2014 decided on November 27, 2014.  The said decision however, is clearly distinguishable on facts.  In the said case, no further payment had been made by the allottee, despite repeated demands and reminders, the payment made by him being only 40% of the sale price.   On the other hand, in the present case, all the payments have been made by the allottee other than
Mr. Vivek Chandra, who did not make further payment on account of the building plan having been revoked in the meanwhile, by YEIDA.

13.   It was contended by the learned counsel for the OP that in view of the provisions contained in Real Estate Regulatory Authority Act (RERA), this Commission lacks jurisdiction to entertain a complaint, in respect of the project subject matter of this complaint. Similar contentions were urged before this Commission and rejected vide order dated 15.04.2019 passed in CC 1764 of 2017 Ajay Nagpal Vs. M/s. Today Homes & Infrastructure Pvt. Ltd. and connected matters.  The following was the view taken by this Commission while rejecting such contentions:

        “40.   From the various decisions of the Hon’ble Supreme Court referred to above, the following principles emerge:-

(i)      The Consumer Protection Act, 1986 is a supplement Act and not in derogation of any other Act;

(ii)     Any Consumer who is aggrieved by any defect in goods purchased or deficiency in service as also regarding unfair trade practice, can approach the Consumer Fora by filing the complaint under the Act.  Even a Class Action Complaint is permissible under the Act. 

(iii)    The Consumer Fora constituted under the Consumer Protection Act, 1986 are not Civil Courts. 

(iv)    The Consumer Fora can provide for the reliefs as contemplated under Section 14 of the Act.

(v)     A Consumer cannot pursue two remedies for the same cause of action. However, if a Consumer has not approached for redressel of its grievance under the particular Statute, the Consumer can approach the Consumer Fora under the Consumer Protection Act.  But, if the Consumer had already approached the Authority under the relevant Statute, he cannot simultaneously file any complaint under the Consumer Protection Act.

(vi)    Mere availability of a right to redress the grievance in a particular Statute will not debar the Complainant/Consumer from approaching the Consumer Fora under the Act.

(vii)   Even though under Sections 14, 15, 18 and 19 of RERA, various provisions have been made which are to be followed by the Developer/Promoters and the rights and duties and the return of amount as compensation as also rights and duties of Allottees, yet same cannot mean to limit the right of the Allottee only to approach the Authorities constituted under the RERA, he can still approach the Consumer Fora under the Consumer Protection Act.

(viii)   Section 71 of RERA which gives the power to adjudicate, does not expressly or impliedly bar any person from invoking the provisions of the Consumer Protection Act. It has also given a liberty to the person whose Complaint is pending before the Consumer Fora to withdraw it and file before the RERA Authorities. 

(ix)    Section 79 of RERA only prohibits the jurisdiction of Civil Court from entertaining any suit or proceeding in respect of any matter which can be decided by the Authorities constituted under the RERA. As the Consumer Fora are not Civil Courts, the provisions of Section 79 which bar the jurisdiction of Civil Courts, will not be attracted. So far as to grant injunction is concerned, only that power has been taken away by Section 79. But, it does not, in any manner, effect the jurisdiction of the Consumer Fora in deciding the Complaints. Both,  the Consumer Protection Act, 1986 and the Real Estate (Regulation and Development) Act, 2016 are supplemental to each other and there is no provision in the Consumer Protection Act which is inconsistent with the provisions of RERA. 

41.     Applying the aforesaid principles to the present case, we are of the considered opinion that this Commission has jurisdiction to proceed with the Complaint Cases filed by the Consumers and neither Section 71 nor Section 79 and nor Section 89 creates any embargo or prohibits the jurisdiction of the Consumer Fora.”

14.   During the course of hearing, the learned counsel for the complainant, restricted the claim to the refund of the principal amount, along with interest at the rate of 10% per annum, from the date of each payment.

15.   For the reasons stated hereinabove, the complaint is disposed of with the following directions:-

(i)     The opposite party shall refund the entire amount received from the allottees, on whose behalf this complaint continues, along with compensation, in the form of simple interest @ 10% per annum to them 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.