HON’BLE MR. JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL)

1.      The complainants who are husband and wife booked a residential flat in a project namely Burgundy which the OP is developing in Sector-96 to 98 of Noida.  Vide allotment letter dated 29.09.2011, a flat admeasuring 4465 sq. ft. in the aforesaid area was allotted to them for an agreed consideration of Rs.3,45,07,784/-.  As per the detailed terms and conditions annexed to the allotment letter, the possession was to be offered for carrying out interiors and fit outs within 30 months of receipt of duly signed terms and conditions from the allottee(s), subject to force majeure circumstances or other similar circumstances beyond the reasonable control of the developer.  The complainants have already paid a sum of Rs.3,43,18,690/- to the OP, which constitutes about 95% of the agreed consideration.  Since possession of the flat was not offered to them despite receipt of the aforesaid amount, they are before this Commission seeking refund of the said amount, alongwith compensation in the form of interest @ 18% per annum and cost of litigation.

2.      The delay in completion of the flat and offering possession to the complainants is sought to be justified primarily on the following grounds:

(i)      There was agitation by farmers whose land was allotted by Noida Authority and allotted to the opposite party. The farmers were seeking increase in compensation and allotment of developed plots in lieu of the acquired land.

(ii)      High Court of Allahabad while deciding a bunch of writ petitions filed by various farmers had restrained Noida as well as the developers from carrying out any development and implementing the Master Plan 2021 till the observations and directions of the National Capital Regional Planning Board were incorporated in Master Plan 2021 to the satisfaction of the said Board.

(iii)     The National Green Tribunal had passed an order on 17.9.2013 stopping construction activity in and around 10 km of Okhla Bird Sanctuary and the present project falls within 10 km of the said bird sanctuary. The said order dated 17.9.2013 finally came to be replaced by a Notification issued by Govt. of India, M/o Environment  on 19.8.2015 declaring an Eco Sensitive Zone of 100 meters around the Okhla Bird Sanctuary.

(iv)    Restrictions were imposed by National Green Tribunal on use of ground water for construction purposes in Noida and Greater Noida.

(v)     There was acute shortage of labour.

3.      Identical grounds were taken by the OP in CC No. 148 of 2015 Gaurav Chhabra Vs. M/s Unitech Hi-Tech Developers Ltd. and connected matters decided on 02.11.2016.  The following view taken by this Commission in the aforesaid decision is relevant for the purpose of this complaint as well. 

4.      When CC No.148 of 2015 came up for hearing before this Commission on 29.2.2016 , this Commission having taken note of  the arguments advanced by the learned Senior Counsel for the opposite party, directed the opposite party to file an affidavit giving the following information:-

“(1)    Whether the opposite party was a party to Writ No. 37443 of 2011, Gajraj Singh Vs. State of UP & Ors. and if so, whether there was any order passed by the Hon’ble High Court of Allahabad restraining the opposite party from carrying out development on the land subject matter of this complaint. In that case, the opposite party shall also place on record the copy of the order of the High Court besides informing upto which date the said order continued to remain in force.

(2)     Whether any order with respect to development on the land subject matter of this complaint was passed by National Green Tribunal and if so, what that order was, when it was passed and upto which date the said order continued to remain in force. The copy of such an order shall also be filed.

(3)     What is the present status of the development on the land subject matter of this complaint and when the opposite party will be in a position to deliver possession of the plot booked by the complainant to him, in accordance with law.”

5.      In compliance of the aforesaid directions, the opposite party filed affidavit of its Managing Director Mr. Ajay Chandra. The aforesaid affidavit, to the extent it is relevant with respect to the aforesaid three informations, reads as under:-

“It is respectfully submitted that the opposite party had filed intervention applications along with other builders, in several writ petitions which were related to village Sadarpur, Noida (where the allotted land is situated). These writ petitions were primarily filed by the farmers against the Government of Uttar Pradesh and Noida/Greater Noida Development Authority seeking quashing of the notifications issued by the Government for acquisition of their lands. It is submitted that the Noida authority had acquired this land from farmers of the villages Sardarpur and allotted it to the opposite party for development of the project as per planning. The land, wherein plotted development are being made by the opposite party including the plot of the complainant, falls in village Sardarpur, and acquisition in respect of all lands of this village was under challenge.

There was no restraining order as such but in view of the conflicting views and the law governing on the subject (Quashing of land acquisition by Hon’ble Supreme Court in various matters including Radhey Shyam Vs. State of UP (2011) 5 SCC 533, the entire acquisition was under cloud of uncertainty and hence all the developers in the area including the opposite party took a conscious approach in development.

That during the pendency of the above litigations, restraint order dated 17.9.2013 was passed by National Green Tribunal, Delhi not to raise any construction activity in and around 10 kms. of the Okhla Bird Sanctuary and the present project fell within 10 km vicinity of the Okhla Bird Sanctuary. District Magistrate and SSP were directed to implement the order. A letter to this effect was also issued by SSP, Gautambudhnagar. Copy of order along with letter dated 25^th December 2013 issued to the respondent by SSP, Gautambudh Nagar is attached herewith as Annexure-D.

That the above, order  passed by NGT Delhi was finally replaced by the Notification dated 19.8.2015 issued by Ministry of Environment, Govt. of India declaring 100 mtr in and around Okhla Bird Sanctuary as Eco Sensitive Zone. A copy of Notification dated 19.8.2015 is attached herewith as Annexure-E.

That the streets and mains, sewerage, storm drainage and water pipeline of the plots of Willows have been laid down. The internal roads have been finished in concrete and for internal lighting the electric street light post fitting work are in progress. The respondent company is expecting to deliver the possession of the plots within 12 month.”

4.      As regards the restraint order passed by National Green Tribunal in respect of projects within a radius of 10 kms from Okhla Bird Sanctuary, the view taken by this Commission in Pradeep Narula & Anr. Vs. M/s Granite Gate Properties Pvt. Ltd. in CC No. 315 of 2014 decided on 23.08.2016 is relevant:

7.      Vide interim order dated 11.01.2013, the National Green Tribunal restrained all the builders of Noida and Greater Noida from extracting any quantity of ground water for the purpose of construction, till the next date of hearing before it. The next date of hearing before the National Green Tribunal fixed was 24.01.2013. The aforesaid order shows that the builders raising construction of 20,000 sq. mtrs. and above were required to take environmental clearance under the relevant rules by the competent authority in the State Government but said permission had not been taken. If the requisite EC was taken by the opposite party, the order passed by the National Green Tribunal did not apply to it. If the opposite party was required to take permission from the competent authority in the State Government but had not taken such a permission before selling flats in the aforesaid project, it is only itself to blame for creating a situation in which the order passed by the National Green Tribunal on 11.01.2013 came to be applied to this project. Moreover, there is no evidence of the opposite party having tried to obtain water for construction purpose from alternative source. If the National Green Tribunal had restrained the builders from extracting the underground water in Noida/Greater Noida, they were expected to arrange water from the alternative source so as to fulfill their contractual obligation to the flat buyers. It is not as if no construction took place in Noida and Greater Noida during the period the interim order passed by the National Green Tribunal remained in force. Therefore, if the opposite party so wanted, it could have arranged water for construction purpose from the alternative source. There is no evidence of the aforesaid interim order dated 11.01.2013 having been continued by the National Green Tribunal after 24.01.2013 which was the next date of hearing in the aforesaid matter. In any case, it cannot be said that the delay in completion of the project was justified on account of the above referred interim order of the National Green Tribunal.

8.      The opposite party has filed, alongwith its affidavit by way of evidence, a copy of an order dated 28.10.2013 passed by the National Green Tribunal in M.A. No. 890 of 2013 and connected matters. The said order contains reference to an earlier order dated 14.08.2013, whereby NOIDA was directed to stop the construction work going on within a radius of 10 kms from Okhla Bird Sanctuary, without prior environmental clearance or in contravention of the same. The order dated 28.10.2013 shows that the aforesaid order applied to 49 projects out of which, 15 had already been completed and 7 had not begun. The Tribunal made it clear that its intention on 17.09.2013 was to extend the interim order dated 14.09.2013 to the persons or builders carrying on construction activity without environmental clearance or against the provisions of the environmental clearance. This is not the case of the opposite party that no environmental clearance was required or that it had not obtained such a clearance before it started the construction in this project. In such a case, the order passed by the National Green Tribunal would not apply to this project since the scope of the said order was limited to the construction activity being carried out without requisite environmental clearance or in contravention of the environmental clearance. If the opposite party had commenced construction of the project in question without obtaining the requisite environmental clearance or the said construction was in contravention of the environmental clearance, it has only itself to blame for the said construction being stopped by the National Green Tribunal.

9.      Vide above referred order dated 28.10.2013, National Green Tribunal directed that all the projects within an area of 10 kms radius of the Okhla Bird Sanctuary be examined by National Board for Wild Life. The Ministry of Environment & Forests was directed to refer all the aforesaid projects to National Board for Wild Life, within four weeks. The Government of U.P. was directed to send the particulars relating to the environmental clearance given to the aforesaid projects to the Ministry of Environment & Forests within four weeks from the order. Within four weeks thereafter, Ministry of Environment & Forests was to refer the same to the standing Committee of National Board for Wild Life, which was to verify the correctness of the statement made by the project proponent. The order passed by the aforesaid Board was to indicate whether the project should be permitted or not. It was made clear that the building construction within 10 kms radius of Okhla Bird Sanctuary or within distance of Eco-Sensitive Zone to be prescribed by Ministry of Environment & Forests shall be subject to decision of National Board for Wild Life and till clearance from the said Board, the Authority shall not issue completion certificate to the project. Thus, in the aforesaid order dated 28.10.2013, the National Green Tribunal did not stay further construction of the projects where requisite environmental clearance had been obtained, and only completion certificate was withheld till clearance from the National Board for Wild Life.

The order of the Tribunal to the extent the issue of completion certificate was withheld till the clearance from NBWL could not have contributed to the delay in offering possession to the complainants since the construction not being complete, the stage to obtain the requisite completion certificate had not reached, by the time the aforesaid order dated 28.10.2013 came to be passed by the National Green Tribunal. In fact, even in the cases where the construction was complete and the completion certificate had been applied, the builder could obtain the completion certificate on the project being cleared by NBWL. If there was a delay on the part of the Government of U.P. in sending the particulars relating to the environmental clearance given to the project, to the Ministry of Environment & Forests, there was delay on the part of Ministry of Environment & Forests in forwarding the matter to National Board for Wild Life or there was delay on the part of the National Board for Wild Life in completing its enquiry in terms of the order of the National Green Tribunal, the builder could always approach the said Tribunal for giving appropriate directions to the Government of U.P. or Ministry of Environment & Forests or National Board for Wild Life as the case might be.

5.      As regards delay on account of agitation by farmers, there is no evidence of the work at this particular site having been halted by the farmers. No affidavit of the contractor engaged by the opposite party for the construction of the flats in this project has been filed to prove that he had to halt the work on account of agitation by farmers. No affidavit by any construction labourer has been filed to prove that the labourers were prevented by farmers from carrying out construction on the site of this project. Therefore, the delay in completion of the construction on account of the alleged agitation by the farmers could not be substantiated by the opposite party.            

6.      As far as the litigation before the High Court of Allahabad is concerned, admittedly, there was no order passed by the said High Court restraining the OP from undertaking construction of the flats at the site of this project.  Therefore, the aforesaid order did not come in the way of the OP completing the construction in terms of its contractual obligations contained in the allotment letter. 

7.      As regards the alleged shortage of labour, no material has been placed on record by the OP to show that it could not get adequate work force to complete the construction of the flats despite efforts having been made in this regard.  There is no evidence of the OP having invited tender for engagement of Contractors/Sub-Contractors with adequate manpower for executing the work at the site of this project and no such Contractor/Sub-Contractor having come forward to execute the work on account of non-availability of the manpower.  Therefore, there is no merit in the plea taken by the OP in this regard.

8.      A number of complaints relating to allotment of residential flats in this very project namely Burgundy were allowed by this Commission vide its order dated 12.10.2015 passed in CC No. 91 of 2015 Diwakar Mishra & Anr. Vs. Unitech Hi-Tech Developers Ltd. and connected matters.  In the aforesaid matters, the complainants wanted possession of the flat allotted to them by the OP and therefore, this Commission directed the OP to offer possession of the flats to the said complainants on or before 31.10.2017 and also pay compensation to them @ 10% per annum for the period the possession was delayed.  An appeal against the aforesaid order was filed by the OP before the Hon’ble Supreme Court being Civil Appeal (D) No. 42101 of 2015.  The said appeal resulted in settlement between the parties.  The appeals came to be disposed of vide order dated 01.09.2016.  However, the terms of the settlement do not form part of the order.  The authorized representative of the OP informs that the settlement envisaged allotment of the plots to the complainants in lieu of the flats which they had booked with the OP.  However, in the present case, neither any plot has been offered to the complainants nor are they interested in obtaining an alternative plot from the OP.  Complainant no. 2 Satish Aggarwal who is present in the court states that he does not want to wait anymore for the allotment of the flat and wants refund of the amount which he had paid to the OP alongwith appropriate compensation. 

9.      Clause 5(vi) of the terms and conditions attached to the allotment reads as under:

5. POSSESSION OF APARTMENT

a) Letter for fit outs and interiors:

(vi) If for any reason the developer is not in a position to offer the apartment, the developer shall offer the allottee(s) an alternative property or refund the amount in full with simple interest @ 10% per annum without any further liability to pay damages or any other compensation/charges to the allottee(s) on this account.

No evidence has been led by the complainants to prove that the actual loss suffered by them was more than 10% per annum.  Complainant no. 2 states that in order to avoid any further litigation in the matter on the part of the OP, they are ready to accept the refund alongwith compensation in the form of simple interest @ 10% per annum.  The complaint is therefore, disposed of with the following directions:  

1. The OP shall refund the entire amount of Rs. 3,43,18,690/- paid to it by the complainants within six weeks from today alongwith compensation in the form of simple interest on that amount @ 10% per annum from the date of each payment till the date on which the entire amount alongwith simple interest @ 10% per annum in terms of this order is refunded.

2. The OP shall pay a sum of Rs.10,000/- as cost of litigation to the complainants.