JUSTICE V.K.JAIN, (ORAL)

The affidavits of the complainants by way of evidence have been filed  today in the Court and the same are taken on record. The right of the opposite party  to file the written version has already been closed on different dates. The said right was closed on 29.1.2018 in CC/130/2017 and vide order dated 4.8.2018 in CC/131/2017 to CC/134/2017, as the OP did not file its written version within the period prescribed for this purpose.

2.      I have heard the learned counsel for the complainants. No one is present for the opposite party when the matters are called.

3.      In CC/130/2017, late Smt. Bhawana Gupta wife of complainant No.1 – Sameer Gupta and the mother of complainant Nos. 2 & 3 – Siddhant Gupta and Raghav Gupta booked a residential apartment with the OP in a project, namely ‘Unitech Grande’ which the OP,  was to develop in Sector-96, 97 & 98 of Noida.  Vide provisional allotment letter dated 25.6.2007, apartment No.1402 in Tower-2 of the aforesaid project was allotted to her for consideration of Rs.26403512/-. The terms and conditions were annexed to the allotment letter dated 8.9.2007 issued to Smt. Bhawana Gupta and as per Clause 5(a)(i) of the terms and conditions of the allotment, the possession was expected to be delivered by 30.9.2010, though of course subject to force majeure circumstances. The complainants are stated to be the only legal heirs of late Smt. Bhawana Gupta. The learned counsel for the complainants states on instructions that Smt. Bhawana Gupta was not survived by any child other than complainant Nos. 2 & 3. The grievance of the aforesaid complainants is that the possession of the apartment has not been offered to them despite they having already paid a sum of Rs.16886923/- to the opposite party. The complainants are therefore before this Commission seeking refund of the amount paid by them to the opposite party  along with compensation etc.

4.      In CC/131/2017, the complainant, namely, Sundeep Gupta, also booked a residential apartment in the same project and apartment No.0901 in Tower – 2 was allotted to him for a consideration of Rs.26403512/-. As  per Clause 5(a)(i) of the terms and conditions of the allotment made to him, the possession was to be delivered by 30.9.2010. In his case, the possession has not been offered despite he having already paid a sum of Rs.16077414/- to the OP. Therefore, he is also before this Commission seeking refund of the said amount with compensation.

5.      In CC/132/2017, the complainant, namely, Sameer Gupta, also booked a residential apartment in the same project and vide letter dated 25.6.2007, an apartment No.1401 in Tower – 2 of the above-referred project was allotted to him for a consideration of Rs.26403512/-. In his case also, the possession of the apartment was to be delivered by 30.9.2010 in terms of Clause 5(a)(i) of the terms and conditions of the allotment. His grievance is that the said possession  has not been offered despite he having already paid a sum of Rs.16886923/- to the OP. Therefore, he is also before this Commission seeking refund of the said amount along with compensation.

6.      In CC/133/2017, the complainant, namely, Anita Gupta booked a residential in the above-referred project of the opposite party  and vide letter dated 25.6.2007, apartment No.0902 in Tower-2 of the aforesaid project was allotted to her for consideration of Rs.26403512/-. In her case also the possession in terms of clause 5(a)(i) of the terms and conditions of the allotment, was required to be delivered by 30.9.2010. Since possession has not been offered to her despite she having already paid Rs.16077414/- to the OP, she is also before this Commission seeking refund of the aforesaid amount along with compensation.

7.      In CC/134/2017, the complainant, namely, Savita Gupta booked a residential in the above-referred project of the opposite party  and vide provisional allotment letter dated 25.6.2007, apartment No.1202 in Tower-2 of the aforesaid project was allotted to her for consideration of Rs.26403512/-. In her case also the possession in terms of clause 5(a)(i) of the terms and conditions of the allotment, was required to be delivered by 30.9.2010. Since possession has not been offered to her despite she having already paid Rs.16877234/- to the OP, she is also before this Commission seeking refund of the aforesaid amount along with compensation.

8.      Clause 5(d) of the terms and conditions of the allotment which are common in all the cases  provided that if for any reason the developer is not in a position to offer the apartment altogether,  it shall offer the allottee(s) an alternative property or refund the amount in full with  simple interest @ of 10% p.a. without any further liability to pay damages or any other compensation on this account.

9.      The affidavits filed by the complainants along with their documents prove the allotment made to them as well as the payment made to the OP. Since possession of the apartment was not offered to them, within the time stipulated in this regard in the terms and conditions of allotment, they are entitled to seek refund of the amount paid by them to the OP along with appropriate compensation.

10.    The learned counsel for the complainants submits that though no written version has been filed in these matters, several other complaints in respect of this project have already been allowed by this Commission.  A reference in this regard is made to the decision of this Commission dated 20.9.2018 in CC No.401 of 2017 – Shantilal Jain Vs. Unitech Hi-tech Developers Ltd. The decision of this Commission in Shantilal Jain (supra) to the extent it is relevant, reads as under:-

“4.    The OPs have filed their written version contesting the complaint but the learned counsel for the complainant has submitted that the plea on which the complaint is being contested, have already been rejected by this Commission in a number of consumer complaints relating to this very project, including CC No.224 of 2017 Shashank Shekhar Jha Vs. Unitech Acacia Project Pvt. Ltd. & Ors. decided on 20.08.2018 and CC No. 367 of 2015 Richa Aggarwal & Anr. Vs. Unitech Hi-Tech Developers Ltd. decided on 04.11.2016.  

5.       In Richa Aggarwal & Anr. (supra), this Commission while rejecting the aforesaid ground, inter-alia observed and held as under:

          “5.      The OP filed its written version contesting the complaint. The delay in completion of the flat and offering possession to the complainants was sought to be justified 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.”

6.      Noticing an earlier decision of this Commission in CC No.148 of 2015 – Gaurav Chhabra Vs. M/s Unitech Hi-Tech Developers Ltd. and connected matters decided on 2.11.2016, this Commission interalia held as under:-

“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.”    

11.    The learned counsel for the complainants states that the last date for delivery of possession was later revised by the opposite party  to 31.12.2011 but the possession of the flats was not offered even thereafter. The learned counsel for the complainants also states on instructions from the complainant that the complainants are restricting  their claim in these  complaints to the refund of the principal amount paid to the opposite party along with compensation in the form of simple interest @  10% p.a. in terms of clause 5(d) of the terms and conditions of allotment.

12.    Hence, the complaints are disposed of with the following directions:

(i)      In CC No.130 of 2017, the opposite party shall refund the entire principal amount of Rs.16886923/-  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.

(ii)      In CC No.131 of 2017, the opposite party shall refund the entire principal amount of Rs.16077414/- to the complainant, 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.

(iii)     In CC No.132 of 2017, the opposite party shall refund the entire principal amount of Rs.16886923/- to the complainant, 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.

(iv)    In CC No.133 of 2017, the opposite party shall refund the entire principal amount of Rs.16077414/- to the complainant, 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.

(v)     In CC No.134 of 2017, the opposite party shall refund the entire principal amount of Rs.16877234/- to the complainant, 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.

(vi)    The opposite party Unitech High-Tech Developers Ltd. shall pay a sum of Rs.25,000/- as cost of litigation to the complainants in each complaint.

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

(viii)   This order to the extent it pertains to CC No.130 of 2017 is conditional upon any of the complainants filing an affidavit stating therein that deceased Bhawana Gupta was not survived by any child other than complainant Nos.2 & 3. The said affidavit will be filed within two weeks.