State Consumer Disputes Redressal Commission
Birender Kumar Sharma vs Dlf Homes Panchkula Pvt. Ltd. on 10 August, 2022
1
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Complaint case No. : 19 of 2022
Date of Institution : 15.02.2022
Date of Decision : 10.08.2022
Birender Kumar Sharma S/o Sh.N.P. Sharma, R/o H.No.B-1/53 SF, DLF
Valley, Sector 3, Kalka Pinjore Urban Complex, Panchkula
....Complainant
Versus
1. DLF HOMES PANCHKULA PVT. LTD, SCO 190-191-192, Sector-8 C,
Chandigarh - U.T. Pin- 160009, (Site Address) DLF Valley Panchkula,
Sector 3, Pinjore Kalka Urban Complex, Panchkula through its
Manager/Authorized Signatory/Officer-in-charge/Director Sales &
Marketing.
2. DLF HOMES PANCHKULA PVT. LTD., Regd. Office DLF Gateway Tower,
Second Floor, DLF City, Phase III, Gurgaon - 122002, Haryana, India
through its Manager/Authorized Signatory/Officer-in-charge/Director
Sales & Marketing.
Email of OPs No.1 and 2:- [email protected]
....Opposite Parties
BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT
MR. RAJESH K. ARYA, MEMBER
Present:-- Sh.Narender Yadav, Advocate for the complainant.
Sh.Kunal Dawar, Advocate for opposite parties (on VC) alongwith Ms.Tanika Goyal, Advocate.
JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT It is the case of the complainant that despite the fact that he paid total amount of Rs.58,12,968.04ps. to the opposite parties, for the period from 25.09.2010 to 30.05.2017, towards purchase of unit bearing no.B-1/53, Second Floor, measuring 1550 square feet, in the project named DLF Valley, Sector 3 Panchkula, yet, they failed to deliver possession to him by 26.01.2013 i.e. within a period of 24 months as envisaged in Clause 11 (a) of the agreement dated 27.01.2011, Annexure C-2. It has been averred that since the Hon'ble Supreme Court of India stayed the construction activities for the period from April 2012 to December 2012, as such, even in those circumstances, even if concession of period of one year is given to the opposite parties, even then possession of the unit in question should have been delivered latest by 26.01.2014 but they failed to do so. It has been stated that thereafter, the opposite parties offered possession of the unit in question vide letter dated 15.11.2016, Annexure C-3, alongwith which demand of 2 Rs.11,32,679.66ps. was made. However, the complainant was shocked to see that the opposite parties have demanded excess amount of Rs.5,32,650/- towards alleged increase of area of the unit to 1751 square feet from 1550 square feet i.e. 201 square feet in excess. It has been stated that when the complainant enquired into the matter, it was informed to him by the opposite parties that the said area has been increased, as per occupation certificate issued by the Country Town Planning Department, Haryana. It has been pleaded that on the other hand, perusal of occupation certificate dated 19.07.2016, Annexure C-6 revealed that there was no increase in the area of the unit in question. It has been averred that number of requests made by the complainant to the opposite parties, to redress his grievances did not yield any result.
2. By stating that the aforesaid act and conduct of the opposite parties amount to deficiency in providing service and adoption of unfair trade practice, the complainant has filed this complaint seeking directions to the opposite parties to pay compensation for the period of delay in delivery of possession of the unit in question; refund the excess amount received towards the area of the unit in question; compensation for mental agony and harassment as also litigation expenses.
3. His claim has been contested by opposite parties, on numerous grounds, inter alia, as under:-
(i). that the complainant has deliberately concealed true facts from this Commission;
(ii). that this Commission did not vest with territorial jurisdiction to entertain and decide this complaint;
(iii). that in the face of arbitration clause contained in the agreement this Commission is not competent to entertain and decide this complaint and it needs to be relegated to an arbitrator;
(iv). that he is not a consumer as the unit in question was purchased by him for commercial purposes and not for his personal use;
(v). that he is seeking complete amendment/modification/rewriting of the terms and conditions of the agreement;
(vi). that only civil court is competent to entertain and decide this complaint, as the matter is contractual in nature;
(vii). that since possession of the unit was offered to the complainant vide letter dated 15.11.2016, as such, this complaint having been filed on 15.02.2022 is barred by limitation;
(viii). that the parties are bound by terms and conditions of the agreement;
(ix). that the complainant was well aware that the layout plans of the project were tentative and subject to change, as such, now at this 3 stage he cannot wriggle out of the same by stating that increase in the area is illegal;
(x). that even otherwise, the increase is area is to the extent of 12.97% which is below 15% i.e. within the permissible limits as specified in terms and conditions of the agreement;
(xi). that the area mentioned in occupation certificate did not include the area of common areas such as staircases, balconies etc. and as such the sale price is based on the entire saleable area;
(xii). that increase in area has been done for the benefit of the allottees and that too has been audited and computed by GAA Advisory and experts of School of Planning and Architecture, New Delhi;
(xiii). that possession of the unit could not be offered on account of stay on construction activities by the Hon'ble Supreme Court of India vide order dated 19.04.2012 in SLP No.21786-88/2010, which was ultimately vacated on 12.12.2012 and subsequent thereto the company tried its level best by arranging the labour etc. to complete the construction and development work at the project site;
(xiv). that delay in possession of the unit took place because there was delay on the part of competent authorities in granting statutory approvals/service and layout plans;
(xv). that the complainant was given option to take refund of the amount paid alongwith interest @9% p.a. but he did not opt the same;
(xvi). that possession so offered to the complainant vide letter dated 15.11.2016 was complete in all respects after receipt of occupation certificate dated 19.07.2016, Annexure C-6 but the complainant failed to take over the same on frivolous grounds;
and (xvii). that possession of the unit has been handed over to him on 15.04.2018.
4. On merits, purchase of the unit in question, in the manner explained in the complaint; execution of agreement; payments made by the complainant as mentioned in the complaint; and delay in delivery of possession of the unit in question have not been disputed by opposite parties. Prayer has been made to dismiss the complaint.
5. The complainant filed rejoinder wherein, he reiterated all the averments contained in the complaint and controverted those contained the written reply of the opposite parties.
6. This Commission has afforded adequate opportunities to the contesting parties to adduce evidence in support of their respective 4 contentions, by way of filing affidavit. In pursuance thereof, the parties have adduced evidence by way of affidavits and also produced numerous documents including written arguments filed by the complainant and the opposite parties.
7. We have heard the contesting parties and have also gone through the entire record of the case, including the rejoinder as well as written arguments aforesaid, very carefully.
8. First we will deal with the objection taken by the opposite parties to the effect that the complainant is an investor and did not fall within the definition of 'consumer'. It may be stated here that the objection taken by the opposite parties is not supported by any documentary evidence and as such the onus shifts to them to establish that the complainant has purchased the unit in question to indulge in 'purchase and sale of units' as was held by the Hon'ble National Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since they failed to discharge their onus, hence we hold that the complainant is a consumer as defined under the Act, 2019. In this view of the matter, objection taken in this regard stands rejected.
9. Now we will deal with the objection taken by the opposite parties with regard to territorial jurisdiction. It may be stated here that Section 47 (4) of Consumer Protection Act, 2019 which is pari materia to Section 20 of the Code of Civil Procedure (CPC) provides as under:-
".....47. (4) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction,--
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, ordinarily resides or carries on business or has a branch office or personally works for gain; or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided in such case, the permission of the State Commission is given; or
(c) the cause of action, wholly or in part, arises; or
(d) the complainant resides or personally works for gain...."
Bare perusal of the above said provisions of sub-sections (a) and (b) of Section 47 (4) of the CPA 2019 abundantly make it very clear that a complaint may be filed at a place, where the opposite party(s) actually and voluntarily resides or carries on business or has a branch office or personally works for gain. Sub-Section (c) of Section 47 (4) of the said Act, further clarifies that the State Commission within whose jurisdiction a part of cause of action, wholly or in 5 part arises, shall have the territorial jurisdiction to entertain and decide the consumer complaint.
Furthermore, it is settled law that even an infinitesimal fraction of a cause of action will be a part of the cause of action and confer jurisdiction on the Court/ Tribunal/Fora within the territorial limits of which that occurs. Cause of action, wholly or in part, may be accrued at the following places:-.
(i) the place where the contract was made;
(ii) the place where the contract was to be performed or performance thereof completed;
(iii) the place wherein performance of the contract any money to which the suit relates was expressly or implied payable.
It is significant to mention here that in the present case the following documents reveals that the same have been issued by the opposite parties from their Chandigarh Office i.e. SCO No.190-192, Sector 8-C, Chandigarh:-
(i). Payment receipt dated 27.03.2017 (at page 48 of the paper book)
(ii). Payment receipt dated 30.05.2017 (at page 49 of the paper book)
(iii). Independent Floor Buyer's Agreement dated 27.01.2011, Annexure C-2
(iv). Offer of possession letter dated 15.11.2016, Annexure C-3
(v). Occupation certificate dated 19.07.2016, Annexure C-6 has also been issued by the Senior Town Planner, Panchkula to the opposite parties at the said Chandigarh Office Thus, since from the documents referred to above, it has been proved that the opposite parties were actually and voluntarily residing and carrying on their business from their branch office at Chandigarh wherefrom they were personally working for gain and at the same time, numerous part of cause of action accrued with the territory of this Commission, as such, it is held that this Commission has territorial jurisdiction to entertain this complaint.
Objection taken in this regard, therefore, stands rejected.
10. The next question that falls for consideration is, as to whether, in the face of existence of Arbitration clause in the agreement, jurisdiction of this Commission is barred, as has been contended by opposite parties? This issue has already been dealt with by the larger Bench of the Hon'ble National Commission in a case titled as Aftab Singh Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, wherein, vide order dated 13.07.2017, it has been held that an Arbitration Clause in the Agreements between the buyer and the Builder cannot circumscribe the jurisdiction of a Consumer Fora notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon'ble Supreme Court of India, 6 which was dismissed vide order dated 13.02.2018. Even the Review Petition (C) Nos.2629-2630 of 2018 filed by the builder in Civil Appeal Nos.23512- 23513 of 2017 against order dated 13.02.2018, was dismissed by the Hon'ble Supreme Court of India, vide order dated 10.12.2018. As such, objection taken in this regard also stands rejected.
11. It is not in dispute that the complainant has paid total amount of Rs.58,12,968.04ps. to the opposite parties, for the period from 25.09.2010 to 30.05.2017, towards purchase of unit in question, measuring 1550 square feet, possession whereof, was to be deliver latest by 26.01.2013 i.e. within a period of 24 months as envisaged in Clause 11 (a) of the agreement dated 27.01.2011, Annexure C-2. However, there is nothing on record that possession of the unit in question was even offered by the promised date, what to speak of delivery of possession thereof. It is coming out from the record that possession of the unit in question was offered for the first time, vide letter dated 15.11.2016, Annexure C-3, but the same was challenged by the complainant, on the ground that neither compensation for the period of delay in offering possession was adjusted/paid and at the same time, the amount asked for, before taking over possession was excessive and illegal as the area of the unit had been shown to be increased from 1550 square feet to 1751 square whereas it was no so.
When we asked Counsel for opposite parties, as to why possession of the unit was not offered by 26.01.2013, to wriggle out of the situation, he relied upon the order dated 19.04.2012 passed by the Hon'ble Supreme Court of India in SLP No.21786-88 of 2010, whereby construction activities in the area were stayed and it was finally vacated on 12.12.2012.
12. Admittedly, possession of the plot in question was offered for the first time vide letter dated 15.11.2016, Annexure C-3. To wriggle out of the situation, as why such an inordinate delay took place in offering possession, which too has been challenged by the complainant, counsel for opposite parties contended that it was on account of following force majeure circumstances having been faced by the company:-
(i). that on account of stay aforesaid construction activities were put to halt and on vacation of the said stay, it took considerable time to rearrange the labour/material for resuming the construction and development work at the project site; and
(ii). that the competent authorities also delayed in granting statutory approvals and layout plans, which was beyond the control of the company.
13. On the other hand, counsel for the complainant contended with vehemence that since alongwith the possession letter dated 15.11.2016, the 7 opposite parties made illegal demand of excess amount of Rs.5,32,650/- towards alleged increase of area of the unit to 1751 square feet from 1550 square feet i.e. 201 square feet in excess, whereas, as per occupation certificate issued by the Country Town Planning Department, Haryana, there was no such increase in the area, as such, possession of the unit in question was not delivered to him. It has been further contended that it was only after receipt of illegal and excess amount received from the complainant, that possession of the unit was delivered to him on 15.04.2018.
14. Under above circumstances, following questions fall for determination before this Commission:-
(i). Whether, opposite parties faced any force majeure circumstances, which caused delay in delivery of possession of the unit or not?
(ii). Whether, there is any increase in the area of the unit in question as alleged by opposite parties or not?
15. Coming to the question 14 (i), as to whether, opposite parties faced any force majeure circumstances, which caused delay in delivery of possession of the unit or not, it may be stated here that not an iota of evidence has been produced on record by the company that they suffered any force majeure circumstances, for the period starting from December 2012 (when stay aforesaid was vacated) till 15.11.2016 (when possession was offered to the complainant). As far as stay aforesaid, on construction activities by the Hon'ble Supreme Court of India vide order dated 19.04.2012 in SLP No.21786- 88/2010 is concerned, as stated above, the said stay had ultimately been vacated on 12.12.2012 i.e. the stay was in force only for 08 months i.e. from 19.04.2012 to 12.12.2012. Thus, in any circumstances, even if we give immunity of 08 months to the opposite parties, even then the possession of the unit should have been offered to the complainant latest by 26.09.2013, which was not done so because admittedly possession of the unit in question was offered only vide letter dated 15.11.2016, and physical possession thereof was delivered only on 15.04.2018.
16. As far as plea raised with regard to delay in granting statutory approvals by the competent authorities is concerned, it may be stated here that opposite parties have not been able to convince this Commission, if they knew that the said approvals were still awaited, then why they committed the complainant vide clause 11 (a) of agreement dated 27.01.2011, Annexure C-2 to offer possession of the unit by 26.01.2013. The opposite parties should have obtained all the approvals/sanctions before booking the said unit. If opposite parties chose to accept booking without obtaining statutory approvals, they are to blame to themselves only. The purchaser of the units, 8 who had nothing to do with grant of statutory approvals, cannot be penalized, by postponing the possession. Our this view is supported by the observations made by the Hon'ble National Commission in M/s. Narne Constructions Pvt. Ltd. Vs. Dr. Devendra Sharma & 4 Ors., Revision Petition No. 4620 of 2013, decided on 17 Dec 2015. Relevant part of the said order reads as under:-
".....As far as final sanction of layout by HUDA is concerned, in my view, the petitioner cannot penalize the complainants/respondents for the delay in the aforesaid sanction since delay cannot be attributed to any act or omission on the part of the complainants/respondents. In fact, in my opinion, the petitioner should not even have accepted the booking without final sanction of the layout by HUDA. If the petitioner chose to accept booking on the basis of provisional sanction of the layout by HUDA, it is to blame to only itself for the delay, if any, on the part of the HUDA in issuing the final sanction of the layout. The purchaser of the plot, who had nothing to do with the sanction of the layout by HUDA cannot be penalized, by postponing the possession or registration of the plot and therefore any escalation in the registration charges on account of delay in final sanction of layout by HUDA must necessarily be borne by the builder and not by the allottee of the plot....."
It has thus been proved that money has been collected from the prospective buyers including the complainant starting from 2010 itself, without obtaining statutory approvals. Collecting money from the perspective buyers and selling the project, without obtaining the required permissions/approvals is an unfair trade practice on the part of the project proponent. It was so said by the Hon'ble National Commission, in a case titled as M/s Ittina Properties Pvt. Ltd. & 3 Ors. Vs. Vidya Raghupathi & Anr., First Appeal No. 1787 of 2016, decided on 31 May 2018. Relevant part of the said order reads as under:-
"................This Commission in Brig. (Retd.) Kamal Sood Vs. M/s. DLF Universal Ltd., (2007) SCC Online NCDRC 28, has observed that it is unfair trade practice on the part of the Builder to collect money from the perspective buyers without obtaining the required permission and that it is duty of the Builder to first obtain the requisite permissions and sanctions and only thereafter collect the consideration money from the purchasers.
It is an admitted fact that the sale deeds were executed in the year 2006 and by 2009 the completion certificate was not issued. The Occupancy Certificate was issued only on 25.09.2017 during the pendency of these Appeals before this Commission. Allotting Plots or Apartments before procuring the relevant sanctions and approvals is per se deficiency............"
17. Now coming to the question 14 (ii), as to whether, there was any actual increase in the area of the unit in question as claimed by the opposite parties or not`, it may be stated here that to prove their stand, the company was required to place on record some cogent and convincing evidence in that regard. However, to strengthen their case, counsel for opposite parties has 9 placed reliance on occupation certificate dated 19.07.2016, Annexure C-6. It is pertinent to mention here that we have minutely gone through the contents of the said occupation certificate and find that it has been issued by the Senior Town Planner-cum-Chairman, Building Composition Committee, Panchkula, for an area measuring 125.583 square meters i.e. 1351.76 square feet only. Other than this document (occupation certificate), there is no other reliable/over-riding document wherefrom, the final area of the unit in question could be ascertained. In this occupation certificate, it has been clearly mentioned that this certificate will stand automatically cancelled, if the permitted use of building or part thereof is changed or any additional construction or alteration in the said building is raised without approval of the competent authority or the portion of the building for which occupation certificate has not been granted is occupied. Thus, from this occupation certificate, it transpired that infact there has been a decrease of 198.24 square feet from the actual area of 1550 square feet (1550 square feet minus (-) 1351.76 square feet). It was further made clear in the said occupation certificate that the allottee is not entitled to carry out any additional construction or alteration over and above the area of the unit (1351.76 square feet in the present case) approved vide the said certificate. It is therefore held that the actual area of the unit sold to the complainant, as assessed by the competent authorities, in the said occupation certificate is 1351.76 square feet and not 1751 square feet, as alleged by the opposite parties and, as such, the complainant was not liable to make payment, over and above, the area of 1351.76 square feet of the unit.
Even otherwise, in our considered opinion, once the original plan is approved by the competent authority, the areas of residential unit as well as of the common spaces and common buildings are specified and super area cannot change until there is change in either the area of the unit or in the area of any of the common buildings or the total area of the project (plot area) is changed. To prove that there was actually an increase in the area of the unit or that the said area is not inclusive of common areas, the company was required to provide a comparison of the areas of the original approved common spaces and the flats with finally approved common spaces/buildings and the flats and also the said fact was also required to be mentioned in the final occupation certificate issued by the competent authorities, before offering possession of the unit, which they failed to do so. It has been observed by this Commission that it has become a common practice of the builders/developers, just with a view to extract extra money from the gullible allottees at the stage, when they cannot quit the deal, as their substantial amount is locked with the company and they are about to take possession. This inaction on the part of opposite parties needs to be deprecated. A similar question, as to whether, the 10 builder can charge for excess area, without giving any justification in that regard, fell for determination before the Hon'ble National Commission in Pawan Gupta vs Experion Developers Pvt. Ltd., consumer complaint bearing no.286 of 2018, decided on 26 August, 2020, which was answered in favour of the allottees by holding that by increasing the area at the final stage of possession, without any justification is an unfair trade practice on the part of the builder/developer. Relevant part of the said order reads as under:-
".....The complaints have been filed mainly for two reasons. The first is that the opposite party has demanded extra money for excess area and second is the delay in handing over the possession. In respect of excess area, the complainant has made a point that without any basis the opposite party sent the demand for excess area and the certificate of the architect was sent to the complainant, which is of a later date. The justification given by the opposite party that on the basis of the internal report of the architect the demand was made for excess area is not acceptable because no such report or any other document has been filed by the opposite party to prove the excess area. Once the original plan is approved by the competent authority, the areas of residential unit as well as of the common spaces and common buildings are specified and super area cannot change until there is change in either the area of the flat or in the area of any of the common buildings or the total area of the project (plot area) is changed. The real test for excess area would be that the opposite party should provide a comparison of the areas of the original approved common spaces and the flats with finally approved common spaces/ buildings and the flats. This has not been done. In fact, this is a common practice adopted by majority of builders/developers which is basically an unfair trade practice. This has become a means to extract extra money from the allottees at the time when allottee cannot leave the project as his substantial amount is locked in the project and he is about to take possession. There is no prevailing system when the competent authority which approves the plan issues some kind of certificate in respect of the extra super area at the final stage. There is no harm in communicating and charging for the extra area at the final stage but for the sake of transparency the opposite party must share the actual reason for increase in the super area based on the comparison of the originally approved buildings and finally approved buildings. Basically the idea is that the allottee must know the change in the finally approved lay-out and areas of common spaces and the originally approved lay-out and areas. In my view, until this is done, the opposite party is not entitled to payment of any excess area. Though the Real Estate Regulation Act (RERA) 2016 has made it compulsory for the builders/developers to indicate the carpet area of the flat, however the problem of super area is not yet fully solved and further reforms are required......"
Civil Appeal No(s).3312/2020 filed by the builder against the order dated 26.08.2020 aforesaid passed by the Hon'ble National Commission was dismissed by the Hon'ble Supreme Court of India, while holding that the complainant is entitled to get refund of the amount paid towards the excess area.
1118. However, to wriggle out of the situation with regard to the alleged increase in area, the opposite parties by way of moving miscellaneous application bearing no.549 of 2022 have placed on record Memo No.STP(P)/OC-951/JD/2016/4665 dated 29.06.2016 received from the office of The Senior Town Planner, Panchkula, Department of Town and Country Planning, Haryana. While relying on the said letter, it has been contended by Counsel for the opposite parties that it is evident from the said letter that composition fee was assessed for increase in area which stood deposited and as such, the permissible increase in area of the unit to the extent of 12.97% of the area, is below 15% as prescribed under clause 1.7 of the agreement. We have gone through the said letter dated 29.06.2016 and found that it has been clearly mentioned therein that the District Town Planner, Panchkula has reported that the opposite parties have achieved the excess covered area beyond permissible limit within zoned area; raised construction without obtaining DPC certificate and also made some other violations/variations vis-à-vis approved building plans, which are compoundable in nature and in case the company is interested to get the offence/violations compounded and obtain the occupation certificate you are requested to deposit the composition fee. Relevant part of the said letter is reproduced hereunder:-
".......OFFICE OF THE SENIOR TOWN PLANNER, PANCHKULA DEPARTMENT OF TOWN AND COUNTRY PLANNING, HARYANA, CHANDIGARH C-3, HUDA COMPLEX, THIRD FLOOR, SECTOR-6, PANCHKULA Email- [email protected] 0172-2560217 (0) REGD COMPOSITION AMOUNT SUBJECT TO AUDIT To Panchkula M/s DLF Homes Panchkula Pvt Ltd, SCO 190-192, Sector 8-C, Chandigarh.
Memo No.STP(P)/OC-951/JD/2016/ 4665 Dated:- 29.6.16 Subject:- Grant of Occupation Certificate in respect of residential house No. B1/51, B1/52, B1/53, B1/54, B1/55, B1/56, B1/57, B1/58, B1/59, B1/60 DLF Homes Pvt Ltd. Panchkula.
Reference: Your letter dated 10.06.2016 submitted in the office of District Town Planner, Panchkula.
Your application for grant of Occupation Certificate has been examined.12
District Town Planner, Panchkula has reported that you have achieved the excess covered area beyond permissible limit within zoned area, raised construction without obtaining DPC certificate and also made some other violations/variations vis-à-vis approved building plans, which are compoundable in nature. These violations can be compounded by paying the composition fee of Rs.2,05,800/- .
Therefore, in case you are interested to get the offence/ violations compounded and obtain the occupation certificate you are requested to deposit the following: -
1. Rs. 2,05,800/- (Rs. Two Lacs Five Thousand Eight Hundred only) on account of composition fee in favour of Senior Town Planner, Panchkula.
2. Rs. 3,767/-(Rs. Three Thousand Seven Hundred Sixty Seven only) on account of labour cess in favour of "Secretary Haryana building and other Construction Worker's Welfare Board, Panchkula".
3. Rs.38/- (Rupees Thirty Eight only) on account of Administrative charge in favour of Director General, Town and Country Planning, Haryana, Chandigarh."
19. Bare perusal of the contents of letter dated 29.06.2016 reveals that the same was written by the competent Authority before issuance of the occupation certificate dated 15.11.2016 and in this letter, it was clearly written that as reported by District Town Planner, Panchkula the opposite parties have achieved the excess covered area beyond permissible limit within zoned area, raised construction without obtaining DPC certificate and also made some other violations/variations vis-à-vis approved building plans, which are compoundable in nature and that in case the company is interested to get the offence/violations compounded and obtain the occupation certificate you are requested to deposit the composition fee. Thus, it was only after deposit of the compoundable fees on account of the violations in building plans, that thereafter occupation certificate dated 19.07.2016, Annexure C-6 in respect of the unit in question, for an area measuring 125.583 square meters i.e. 1351.76 square feet was issued by the Senior Town Planner, Building Composition Committee, Panchkula. Thus, once the occupation certificate Annexure C-6 was issued by the competent Authority, on 19.07.2016 i.e. after 18 days of issuance of letter dated 29.06.2016, as such, no help therefore can be drawn by the opposite parties that it was on the basis of the said letter (29.06.2016) that the area of the unit in question was increased. Therefore, reliance placed by the opposite parties on the letter dated 29.06.2016 is misplaced.
20. The next question that falls for consideration is, as to whether, this complaint is barred by limitation or not, it may be stated here that it is not in dispute that when possession of the unit was offered on 15.11.2016, 13 the grievances raised by the complainant with regard to the excess area, referred to above, was not redressed by the opposite parties and also compensation for the period of delay in delivering possession was also not paid to him. Thereafter, admittedly, under no choice, the complainant took over possession of the unit in question on 15.04.2018. From 15.04.2018, the complainant was having 2 years to file consumer complaint for getting his grievances redressed i.e. upto 15.04.2020. However, this Commission is not oblivious of the fact of the situations prevalent due to COVID-19 and the Hon'ble Supreme Court in Civil Original Jurisdiction, Miscellaneous Application No. 21 of 2022 In Miscellaneous Application No. 665 of 2021 In Suo Motu Writ Petition (C) No. 3 of 2020, In Re: Cognizance For Extension of Limitation, passed the order dated 23.03.2020 and directed that the period from 15.03.2020 till 28.02.2022 (with extension of 90 days) i.e. till the end of May 2020 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi judicial proceedings. Under these circumstances, this complaint having been filed on 15.02.2022 in no way can be said to be time barred.
21. At the same time, it is also held that there was no need to refer the present complaint to the civil court. It is a simple case of non delivery of actual physical possession of the unit by the committed date; nonpayment of compensation for the period of delay; illegal charging of amount on the false ground that there is an increase in the area of the unit, as a result whereof the complainant has approached this Commission for redressal of his grievances. In our considered opinion, since, the opposite parties have received substantial amount of Rs.58,12,968.04ps. from the complainant towards the said unit, and also the grievances raised by him, referred to above, remained unresolved, the nature of such transaction is covered by the expression 'service'. Our this view is supported by the principle of law laid down in Narne Construction P. Ltd., etc. etc. Vs. Union of India and Ors. Etc., II (2012) CPJ 4 (SC), wherein it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression 'service' of any description. Housing construction or building activity carried on by a private or statutory body constitutes 'service' within the ambit of Consumer Protection Act. Similar principle of law was laid down by the Hon'ble Supreme Court of India in Haryana State Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766), while holding as under:-
".......We would reiterate that the statutory Boards and Development Authorities which are allotting sites with the promise of development, are amenable to the jurisdiction of consumer forum in case of deficiency of services as has already been decided in 14 U.T. Chandigarh Administration & Anr. v. Amarjeet Singh & Ors.[1]; Karnataka Industrial Areas and Development Board v. Nandi Cold Storage Pvt. Ltd.[2]. This Court in Narne Construction (P) Ltd. v. Union of India [3] referred to its earlier decision in Lucknow Development Authority v. M.K. Gupta [4] and duly discussed the wide connotation of the terms "consumer" and "service" under the consumer protection laws and reiterated the observation of this Court in Lucknow Development Authority v. M.K. Gupta (supra) which is provided hereunder :
"5. In the context of the housing construction and building activities carried on by a private or statutory body and whether such activity tantamounts to service within the meaning of clause (o) of Section 2(1) of the Act, the Court observed: (LDA case, SCC pp. 256- 57, para 6):
"...when a statutory authority develops land or allots a site or constructs a house for the benefit of common man it is as much service as by a builder or contractor. The one is contractual service and the other statutory service. If the service is defective or it is not what was represented then it would be unfair trade practice as defined in the Act...."
Furthermore, as stated above, the opposite parties did not deliver possession of the unit purchased by the complainant by the promised date; and also did not redress the other grievances referred to above, raised by the complainant, as such, it can very well be said that there is a denial of service on their part. Our this view is supported by the principle of law laid down in Lucknow Development Authority Vs. M.K.Gupta, 1994 AIR 787, 1994 SCC (1) 243, wherein the Hon'ble Supreme Court held that where the developer is at fault in not delivering possession of a property by the committed date, the act so amounts to denial of service, and consumer complaint is maintainable before the Consumer Fora. In no way, filing of this complaint amounts to seeking rewriting/modification of the terms and conditions of the agreement. It is therefore held that the plea taken by the opposite parties that this complaint is not maintainable before this Commission or that this consumer complaint amounts to seeking rewriting/modification of the terms and conditions of the agreement, being devoid of merit, stands rejected.
22. Now the question arises, as to what extent, the complainant is entitled to get compensation for the period of delay in delivering possession of the unit. In Lucknow Development Authority v. M K Gupta (1994) 1 SCC 243, the Hon'ble Supreme Court discussed about the extent of the jurisdiction of the Consumer Fora to award just and reasonable compensation for the harassment and agony suffered by a consumer. In Bharathi Knitting Company Vs.DHL Worldwide Express Courier Division of Airfreight Ltd.- (1996) 4 SCC 704, the Hon'ble Supreme Court accepted the contention that in an appropriate case, the Consumer Forum without trenching upon acute disputed question of facts may decide the validity of the terms of the contract 15 based upon the fact situation and may grant relief, though, each case depends upon its own facts. In Nagesh Maruti Utekar Vs. Sunstone Developers Joint Venture, Consumer Case No. 12 of 2017, decided on 04 May 2022, the Hon'ble National Commission awarded interest @9% p.a. from the committed date of delivery till possession is delivered. Relevant part of the said order is reproduced hereunder:-
"......Consequently, the Opposite Party Developer is directed to pay interest @9% w.e.f. 31.03.2014, i.e., the expected date of delivery of the possession, on the amount deposited by the respective Complainant till 02.09.2017, i.e., the date on which the possession of the Flat was offered by the Opposite Party Developer, within two months from today. The Opposite Party Developer shall also pay cost of ₹25,000/- to the Complainants in each case. Since we have awarded delay compensation till the date of offer of possession instead of actual physical possession of the Flat, the Opposite Party Developer shall not be entitled for any delay interest from the date of offer of possession till the date of payment made by the Complainant for taking physical possession of the Flat......"
In Shreya Kumar & 11 Ors. Vs. M/s. Ansal Housing & Construction Ltd. & 3 Ors., Consumer Case No. 1021 of 2017, decided on 05 May 2022, the Larger Bench of the Hon'ble National Commission has awarded interest @9% p.a. from the committed date of delivery till possession is delivered. In view of the observations of the Hon'ble National Commission in the above noted cases, we are of the view that the provision of penalty @ Rs.10/- per square feet per month of the saleable area of the unit in question as per Clause 15 of the agreement, which comes around between 2.5% to 3% p.a. only, is not sufficient to compensate the complainant for the delay in delivery of possession and the mental agony, harassment and financial loss suffered by him on account of delay. Therefore, the complainant is also entitled to simple interest @9% per annum on the entire amount deposited by him i.e. from 26.09.2013 (due date of possession after adding 08 months aforesaid in the committed date being 26.01.2013) till 15.04.2018 (the date when possession has been delivered to the complainant).
23. For the reasons recorded above, this complaint is partly accepted with costs and opposite parties, jointly and severally, are directed:-
(i). To pay compensation by way of interest @9% p.a. on the deposited amount by the complainant, for delay in delivery of actual legal possession of the unit in question, starting from 26.09.2013 till 15.04.2018, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount shall carry penal interest @12% p.a. from the date of default till this payment is made.16
(ii). To refund the excess amount received from the complainant, over and above, the area measuring 125.583 square meters i.e. 1351.76 square feet, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the said amount shall carry interest @9% p.a. from the date of default till realization.
(iii). To pay Rs.1,45,000/-, in lumpsum, towards compensation for causing mental agony and harassment to the complainant and cost of litigation, within a period of 30 days, from the date of receipt of a certified Rs.1,45,000/-, shall carry interest @9% p.a. from the date of passing of this order, till realization.
24. Certified Copies of this order be sent to the parties, free of charge.
25. The file be consigned to Record Room, after completion.
Pronounced 10.08.2022 Sd/-
[JUSTICE RAJ SHEKHAR ATTRI] PRESIDENT Sd/-
(RAJESH K. ARYA) MEMBER Rg.