JUSTICE V.K. JAIN, (ORAL)

          The complainants, namely, Manmeet Singh and Jasleen Marwaha booked a residential flat with the opposite party in a project, namely, ‘Burgundy’ in Unitech Golf and Country Club which the OP was to develop in Sector-96, 97 & 98 of Noida in UP. Vide allotment letter dated 10.12.2012, unit no. 0402 in Tower-5  of the said project was allotted to them for a consideration of Rs.39965130/-.  As per clause 5(a)(i) of the terms and conditions of allotment , the possession of the apartment for carrying out  fit-outs and interiors was to be offered  within 42 months of the signing of the said terms and conditions which came to be signed on 24.1.2013.  The possession, therefore, ought to have been offered on or before 24.7.2016 for interiors and fit-outs. The grievance of the complainants is that the said possession has not been offered to them despite they having already paid Rs.11362783/- to the opposite party.  The complainants are, therefore, before this Commission seeking possession of the said apartment or in the alternative refund of the aforesaid amount paid by them to the opposite party  along with interest  etc. 

3.      The OP was served on 6.1.2018 but it did not file its written version. Vide order dated 15.2.2018, it was granted time till 21.2.2018 to file its written version subject to deposit of Rs.10,000/- as cost with the Consumer Legal Aid Account of this Commission. Neither the cost was paid nor the written version has been  filed till date. The complainants, however, have filed affidavit by way of evidence.

4.      I have heard the learned counsel appearing for the parties. The documents coupled with the affidavits filed by the complainants prove the allotment made to them as well as the payment made by the complainants to the opposite party. Since the possession of the allotted flat has not been offered to them, they are  entitled to seek either possession of the allotted flat or refund of the amount paid by them to the opposite party.

5.      The learned counsel for the complainants states that since the OP is not in a position to offer possession of the allotted flat, they want refund of the amount paid by them along with appropriate compensation. He also states that the complainants are restricting their claim to the refund of the principal amount paid by them to the opposite party, along with interest @ 10% per annum in terms of Clause 5(a)(vi) of the terms and conditions of the allotment, which reads as under:

          “5(a)(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.”

6.      The learned counsel for the complainants places reliance       upon several decisions of this Commission, including the decision dated 06.1.2017 in CC/307/2015 Pramod Yadav & Anr. Vs. Unitech Hi-Tech Developers Ltd., which to the extent it is relevant reads as under:

  “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. 

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

1. The opposite party, namely, Unitech Hi-Tech Developers Ltd., shall refund the entire principal amount of Rs.11362783/- to the complainants, along with compensation in the form of simple interest @ 10% per annum from the date of each payment till the date of refund, in terms of this order.

2. The opposite parties shall also pay a sum of Rs.25,000/- as the cost of litigation to the complainants.

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