National Consumer Disputes Redressal
M/S. Sn Mohanty vs Unitech Hi-Tech Developers Ltd. on 8 February, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1167 OF 2016 1. M/S. SN MOHANTY WEIGH-BRIDGE RAOD, POST BOX- 21, DISTRICT- KEONJHAR, P.O. BARBIL - 758035, ORISSA ...........Complainant(s) Versus 1. UNITECH HI-TECH DEVELOPERS LTD. BASEMENT 6, COMMUNITY CENTRE SAKET, NEW DELHI - 110017 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER
For the Complainant : Mr. Asif Ahmed, Advocate For the Opp.Party : Dr. Shweta Bajaj, Advocate
Dated : 08 Feb 2017 ORDER
JUSTICE V.K. JAIN (ORAL)
The complainant booked a residential flat in a project, namely, Unitech Grande, which the opposite party is developing in Sector 96-98 of Noida vide application dated 9.4.2008. Vide allotment letter dated 9.4.2016, the OP allotted apartment No.1703 in Tower-1 in Block-3 of the aforesaid project to the complainant, for a total consideration of Rs.19964688/-. The sale consideration was later reduced to Rs.13443216 on account of some changes in the specifications of the apartment and payment schedule. The possession was agreed to be delivered to the complainant within 30 months from July 2009, subject of course force majure circumstances. The aforesaid period of 30 months computed from 1.7.2009 expired on 31.12.2011. The grievance of the complainant is that despite he having already paid a sum of Rs.1,30,79,389/- to the opposite party, the possession has not been offered to him. The complainant is, therefore, before this Commission with the following prayers:-
Direct the opposite party to handover the possession of Apartment No.1703, Level 17 in Tower No.01, Block 03 at Unitech Grande, Sector 96, 97 & 98, Noida, Uttar Pradesh complete in all respect immediately and with all amenities and facilities as agreed to by the opposite party and execute all the necessary and required documents including but not limited to the Sale Deed of the flat in favour of the complainant;
(ii) Alternatively, direct the opposite party to refund the amount of Rs.1,30,79,389/- i.e. the sum already paid to the opposite party along with interest at 18% compounded quarterly to be calculated from the date of making the first payment i.e. 09.04.2008 till the date of actual realization;
(iii) Direct the opposite party to pay interest at 18% per annum compounded quarterly on the sum of Rs.1,30,79,389/- i.e. the sum already paid to the opposite party herein with effect from 30 months from 1.7.2009 (i.e. 1.1.2012) till the date of actual delivery of possession of the flat complete in all respects and with all amenities and facilities as agreed to between the parties;
(iv) Direct the opposite party to pay a sum of Rs.25,00,000/- (Rupees Twenty Five Lakhs only) towards damages for mental torture, agony, discomfort and undue hardships caused to the complainant as a result of the acts and omissions on the part of the opposite party;
(v) Direct the opposite party to reimburse the amount already paid to the opposite party on account of levy of service tax unconstitutionally levied, in light of the Hon'ble High Court of Delhi's judgement in Suresh Kumar Bansal Vs. Union of India;
(vi) Direct the opposite party to pay a sum of Rs.5,00,000/- (Rupees Five Lakhs only) to the complainant towards the cost of litigations
2. The OP did not file its written version even within 45 days from the date on which the notice of admission of the complaint was served upon it. However, with the consent of the opposite party, the following order was passed by this Commission on 19.10.2016:-
"The Opposite Party was served on 19.08.2016. The statutory period of 30 days computed from that day expired on 18.09.2016. Further time of 15 days computed from 18.09.2016, expired on 03.10.2016. The learned counsel for the complainant states that the complainant is agreeable to the written version being taken on record subject to payment of Rs.25,000/- as cost. As agreed, subject to opposite party paying the amount of Rs.25,000/- as cost within two weeks from today, the written version is taken on record.
Subject to payment of cost, rejoinder be filed within four weeks from today as requested by the learned counsel for the complainant. Affidavits of admission/denial of documents shall be filed by the parties within six weeks from today. The complainant shall file affidavit by way of evidence within eight weeks from today. Such an affidavit by the opposite parties can be filed within next four weeks.
List for directions on 08.02.2017."
3. The cost in terms of the above-refereed consent order dated 19.10.2016 having not been paid by the OP, its right to file the written version was closed vide order dated 22.11.2016, and the complainant was directed to file affidavit by way of evidence. The said affidavit has been filed. I have heard the learned counsel for the parties.
4. In Consumer Complaint No.367 of 2015 - Richa Aggarwal & Anr. Vs. Unitech Hi-Tech Developers Ltd. decided on 4.11.2016, the complainants before this Commission had booked a residential flat in the project, namely, Burgundy which the opposite party is developing in Sector 96 to 98 of Noida where the project in which the complainant booked an apartment is being developed. The OP having failed to offer possession of the apartment to the complainants in CC No.367 of 2015, they approached this Commission seeking refund of the amount paid by them along with compensation in the form of interest and cost of litigation.
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.
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."
7. In the present case clause 5(d) of the terms and conditions of allotment reads as under:-
"(d) Default If for any reason the Developer is not in a position to offer the Apartment altogether , 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 on this account."
8. The learned counsel for the complainant states, on instructions, that the complainant is restricting his claim to refund of the entire principal amount paid by him along with compensation in the form of simple interest @ 10% p.a. in terms of above-referred clause of the terms and conditions of allotment, in order to avoid any further litigation in the matter. The complaint is, therefore, disposed of with the following directions:-
The OP shall refund the entire amount of Rs.1,30,79,389/- paid to it by the complainant 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.
The OP shall pay a sum of Rs.10,000/- as cost of litigation to the complainant.
......................J V.K. JAIN PRESIDING MEMBER