JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL)

          The complainants namely Smt. Sowmya Kaur and Sh. Pervinder Singh booked a residential floor with the OPs in a project namely ‘South City-II’ which the OPs were to develop in Gurgaon.  The parties then executed a Buyers Agreement dated 24.03.2011 incorporating their respective obligations. In terms of clause 4(a)(i) of the agreement, the possession was to be delivered within 24 months of its execution subject of course to force majeure circumstances.  The possession therefore, ought to have been delivered by 24.03.2013.  The possession having not been offered to the complainants despite they having paid Rs.92,73,976/- to the OPs, they are before this Commission seeking possession of the aforesaid flat or in the alternative, refund of the amount paid by them alongwith compensation in the form of interest @ 10% per annum for mental agony and harassment. 

2.      The OPs did not file their written version and therefore, their right to file the said written version was closed vide order dated 24.07.2017.

3.      I have heard the learned counsel for the parties and have considered the affidavit by way of evidence filed by the complainants. 

4.      The learned counsel for the complainants states that though no written version has been filed in this case, several other consumer complaints relating to this very project have already been allowed by this Commission rejecting the plea taken in the complaints which were contested on merits.  A reference in this regard is made to CC No. 56 of 2015 Kamlesh Chichra Vs. M/s. Unitech Ltd., decided on 26.9.2016 and CC No. 1184 of 2015 Bharti Kakkar Vs. Unitech Ltd. decided on 04.1.2017 as also Monica Goel Vs. Unitech Ltd. CC 1908 of 2016 decided on 19.1.2018.

5.      The decision of this Commission dated 26.09.2016 in Kamlesh Chichra (supra), to the extent it is relevant reads as under:

  “2.   The complaint has been resisted by the OP which has admitted the allotment made to the complainant for a consideration of Rs.1,01,06,760/-.  The payment made by him has also been admitted.  It is stated in the reply that the construction could not be completed due to reasons beyond the control of the OP, since

  (i) There was a slump in the real estate industry.

  (ii) There was recession in the economy.

  (iii) There was shortage of labour due to Commonwealth Games.

  (iv) Punjab & Haryana High Court had stopped the usage of ground water for construction purpose vide its order dated 16.07.2012. 

  (v) A notification dated 14.09.1999 was issued by Ministry of Environment & Forests barring manufacture of clay bricks within a radius of 50 kms from Thermal Power Plants without mixing at least 25% of the soil. 

(vi) There was ban on mining in the entire Aravali region vide order of the Hon’ble Supreme Court dated 08.05.2009. 

(vii) The office of Director, Town & Country Planning, Haryana, vide notification dated 14.09.2006, imposed certain restrictions and prohibitions on new projects or activities without obtaining the requisite environmental clearance. 

3.       The grounds on which the complaint has been resisted by the OP have repeatedly been rejected by this Commission in a large number of consumer complaints including CC No.382 of 2015 Aditya Mishra & Anr. Vs. M/s Unitech Ltd. and connected matters decided on 03.05.2016.  The following view taken by this Commission is relevant for the purpose of deciding this complaint:

3.  Vide order dated 02.5.2016, this Commission disposed of a number of Consumer Complaints namely Cap. Gurtaj Singh Sahni Vs. Unitech Limited, Consumer Complaint No.603 of 2014 and connected matter, where the opposite party has delayed the delivery of the possession in the project namely Espace Premier, Unitech Nirvana Country-2, Gurgaon, Haryana,  in the same Colony Nirvana Country II in Sector 71 and 72 of Gurgaon. Those complaints were resisted on almost identical grounds. Rejecting such contentions, this Commission inter-alia observed and held as under:

6. The next question which arises for consideration is the quantum of compensation which should be paid to the complainants for the delay in completion of the villas. As far as the prohibition on use of underground water in construction is concerned, the learned counsel for the complainant has drawn my attention to the order dated 21.08.2012 passed by a Divisional Bench of Punjab & Haryana High Court in Civil Writ Petition No. 20032 of 2008 wherein the High Court noted that the public notice issued under Section-5(3) of the Environment Protection Act, 1986 was published in the newspaper on 26.12.2000. It further shows that the said notice had imposed a complete ban upon the use of underground water in the construction without prior approval of the competent authority. It was noted by the High Court that despite publication of the aforesaid notice, the builders continued to use underground water for construction purposes. If there was a complete ban on use of underground water for construction and the said prohibition was notified on 26.12.2000, the opposite party must have taken into account, the impact of the said prohibition while entering into Buyers Agreements with the complainants. Therefore, it is not open to the opposite party to rely upon the said prohibition in order to justify the delay in construction of the villas sold to the complainants. The opposite party knew at the time of entering into agreements with the complainants that it will not be able to use underground water for construction of the villas and therefore, will have to make alternative arrangements from authorized sources for making the water available for the said construction. Therefore, the aforesaid prohibition on use of the underground water for construction purpose does not justify the delay in completion of the construction. In any case, no material has been placed by the opposite party on record to show that efforts were made by it during the relevant period to procure water from alternative sources but it was unable to obtain the water from the said sources. More importantly, in the Buyers Agreement executed between the parties, it was not disclosed to the buyers that since no underground water can be used for construction purpose, the developer will have to arrange water from alternative sources and in case it is not able to arrange water, the construction would be delayed and in that case, it will not be held responsible for the delay in completion of the construction.

5.       As regards, the alleged delay on the part of the Government in constituting the Environment Impact Assessment Authority, the reply / written version filed by the opposite party does not disclose when they applied for the requisite environmental clearance and when it was actually accorded by the concerned authority.  More importantly, in the Buyers Agreement, it was not disclosed to the complainants either that the opposite party is yet to apply for obtaining the requisite environmental clearance or that though it had applied for the said clearance, the same had not been granted to it.  Had the opposite party disclosed the said information to the flat buyers, only then it could have justified the delay, to the extent it was attributable only to the alleged delay in obtaining the environmental clearance. In the absence of such a disclosure, the buyers could not have suspected that the delivery of the possession could be delayed on account of the delay on the part of the concerned authority in granting the requisite environmental clearance for the project in which they had booked the Villas. The following view taken by this Commission in Arun Datta & Anr. Vs. Unitech Ltd. & Anr. CC No. 359/2015 decided on 06.04.2016 is relevant in this regard:

It would thus be seen that the opposite party knew, years before accepting booking from the complainants that since the size of the project was planned to be more than 20000 sq. ft. of built up area, environmental clearance would be required and the said clearance can be given only after the project is approved firstly by the State Environment Impact Assessment Committee and then by State Level Environment Impact Assessment Authority.  Obviously, the opposite party had no control over the time which the aforesaid authorities could take in granting the requisite environment clearance.  In my view, considering the aforesaid requirement it was obligatory for the builder to either obtain the requisite environment clearances before accepting any booking in the aforesaid project or at-least to inform the buyers that the construction would commence only after obtaining the requisite environment clearance and that they were yet to apply for obtaining the said clearance.  This would be more necessary in a case where the builder is promising a particular time frame for delivering a possession of the house to the buyer.  If such a disclosure is made to the buyer and thereafter he chooses to make a booking knowing fully well that the builder cannot be held responsible for the delay attributable solely to the concerned environmental authority in granting the requisite environmental clearance, it will not be possible to hold the builder responsible for delay to the extent the said delay is attributable solely to the inaction on the part of the concerned environment authority.

4.       The booking by the complainants was made on 22.07.2011 and the Buyers Agreement between the parties was executed on 26.08.2011.  At the time of accepting the booking and executing the Buyers Agreement, the OP was very much aware of the notification dated 14.09.1999 by the Ministry of Environment and Forests as well as of the notification dated 14.09.2006 issued by Directors, Town & Country Planning, Haryana.  The OP was also aware on the said dates, of the order dated 08.05.2009 passed by the Hon’ble Supreme Court for ban on mining operations in Aravali range.  Despite being aware of the aforesaid limitations, the OP entered into an agreement obligating it to complete construction and offer possession to the complainant on or before 26.08.2013.  Therefore, it would be difficult to say that the construction was delayed on account of the aforesaid restrictions and limitations. 

5.       As far as the Commonwealth Games are concerned, they were over much before booking was made by the complainants.  Therefore, any reference to the shortage of labour and/or material on account of Commonwealth Games would be highly misplaced. 

6.       The ground situation as reflected in the photographs filed by the complainant is that the land on which the construction was to be raised, is lying vacant and the construction has not even commenced despite the booking having been made more than five years ago.  The OP therefore, has miserably failed and there is absolutely no justification for the said failure.  In the facts and circumstances of the case, it cannot be said that the construction of the flats has been delayed on account of the reasons beyond the control of the OP.  Therefore, it can hardly be disputed that the OP was deficient in rendering service to the complainant. 

6.      The learned counsel for the complainants states that the construction of the flat allotted to the complainants is nowhere near completion and in fact, the plot itself is lying vacant.  The complainants are therefore, not interested in waiting any more for the said flat and want refund of the entire amount paid by them alongwith compensation.

7.      The learned counsel for the complainants states on instructions that the complainants are restricting their claim to the refund of the principal amount paid by them, along with compensation in the form of simple interest @ 10% per annum, in terms of Clause 4.e of the sale agreement which reads as under:

          “4.e   Inability to offer Floor:

          That, if for any reason whatsoever, the developers are unable to offer the aforesaid Floor to the purchaser(s), as agreed herein, the developers may offer the purchaser(s) an alternative property or refund the amount in full with interest @ 10% per annum. The developers shall not in the event of such an eventuality be liable to pay any other charge or compensation.”

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

(i)      The opposite parties shall refund the entire principal amount of Rs.92,73,976/- to the complainants along with compensation in the form of simple interest @ 10% per annum from the date of each payment, till the date refund with compensation, in terms of this order.

(ii)      The opposite parties shall also pay Rs.25,000/- as cost of litigation to the complainants.

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