JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL) The complainant booked a residential flat with the opposite party in a project namely ‘Unitech Grande’, which the opposite party was to develop in Sector 96, 97 and 98 of Expressway Noida. Vide allotment letter dated 4.8.2009, Apartment No. 0303 in Tower 1 Block 03 of the said project was allotted to her by the opposite party, on the terms and conditions annexed thereto. The total sale consideration of the apartment was agreed at Rs.1,32,30,128/-. As per Clause 5(a)(i) of the terms and conditions of the allotment, the possession is expected to be delivered within thirty months thereof, meaning thereby that it was expected to be delivered to the complainant by 26.3.2012. The grievance of the complainant is that the possession has not been offered to her and even the construction is not complete, despite she having already paid Rs.1,28,75,975/- to the opposite party. 2. The opposite party filed its written version, contesting the complaint on several grounds. Vide order dated 27.6.2016, the complainant was directed to file affidavit of admission / denial of documents as well as affidavit by way of evidence within six weeks. Such affidavits were duly filed by the complainant. The OP also filed its affidavits. 3. On 20.4.2017, the complainant was allowed to amend the complaint. The said order was passed on IA/4743/2017. It however, transpires that the amended complaint was not filed by the complainant, despite the amendment having been allowed. The learned counsel for the complainant, who is also her husband, states that the complainant does not want to amend the complaint and wants to continue with the original complaint as instituted by her. 4. I have heard the learned counsel for the complainant. No-one is present for the OP when the matter is called for hearing. 5. The learned counsel for the complainant has pointed out that several other consumer complaints pertaining to allotment of the residential flat in this very 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 25th 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.” 6. The learned counsel for the complainant states that the complainants does not want refund of the amount paid to the OP but wants possession of the allotted flat to her. He also states that the complainant, who is his wife, is restricting her claim to the possession of the allotted flat with compensation in the form of simple interest @ 8% per annum on the entire amount paid by the complainant to the opposite party from 01.10.2012 till the date on which the possession is actually handed over. 7. The complaint is therefore, disposed of with the following directions: (i) The opposite party shall complete the construction of the allotted flat to the complainant in all respects on or before 31.12.2019. This is the time frame suggested by the learned counsel for the complainant for completion of the apartment in all respects. (ii) The OP shall also obtain the requisite occupancy certificate in respect of the allotted flat at its own cost and responsibility and shall offer possession of the allotted flat to the complainant on or before 31.3.2020. (iii) The OP shall pay compensation in the form of simple interest @ 8% per annum on the entire amount paid to the OP with effect from 01.10.2012 till the date on which the possession in terms of this order is actually offered. (iv) The balance amount payable by the complainant to OP shall be adjusted out of the compensation payable to her, in terms of this order. (v) The OP shall also pay a sum of Rs.25,000/- as the cost of litigation to the complainant. | 
