State Consumer Disputes Redressal Commission
Brij Mohan vs Emaar Mgf Land Limited on 20 September, 2019
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
Consumer Complaint No.230 of 2019
Date of Institution : 18.03.2019
Date of Reserve : 04.09.2019
Date of Decision : 20.09.2019
Brij Mohan S/o Sh. Bhagwan Dass R/o House No.1162, Sector 43-B,
Chandigarh. Email : [email protected],
Phone No.96465-08328
.....Complainant
Versus
1. Emaar MGF Land Limited, ECE House, 28 Kasturba Gandhi
Marg, New Delhi-110001 through its Managing Director/Director/
Partner/ Authorized Signatory.
2. Emaar MGF Land Limited, SCO 120-122, First Floor, Sector 17-
C, Chandigarh thorugh its Managing Director/ Director / Regional
Manager/ Branch Manager/ Authorized Signatory.
3. Emaar MGF Land Limited, 306-308, Square One, C-2, District
Centre, Saket New Delhi South Delhi DL 110017 through its
Managing Director / Director / Regional Manager/ Branch
Manager/ Authorized Signatory.
4. Shravan Gupta Director of Emaar MGF Land Limited, 306-308,
Square One, C-2, District Centre, Saket New Delhi South Delhi
DL 110017.
5. Shilpa Gupta Director of Emaar MGF Land Limited, 306-308,
Square One, C-2, District Centre, Saket New Delhi South Delhi
DL 110017.
Consumer Complaint No 230 of 2019 2
6. Bharat Bhushan Garg Director of Emaar MGF Land Limited, 306-
308, Square One, C-2, District Centre, Saket New Delhi South
Delhi DL 110017.
7. Mohamed Ali Rashed Alabbar Director of Emaar MGF Land
Limited, 306-308, Square One, C-2, District Centre, Saket New
Delhi, South Delhi DL 110017.
8. Ahmed Jamal Jawa Director of Emaar MGF Land Limited, 306-
308, Square One, C-2, District Centre, Saket New Delhi South
Delhi DL 110017
Email : [email protected]
Phone: 0172-4688888, 011-41521155
Opposite Parties
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Mr. Rajinder Kumar Goyal, Presiding Member
Mrs.Kiran Sibal, Member Present:-
For the complainant :Sh.Munish Goel, Advocate For the opposite parties :Sh.Anuj Kohli, Advocate RAJINDER KUMAR GOYAL, PRESIDING MEMBER :
The complainant has filed this complaint, under Section 17(1)(a)(i) of the Consumer Protection Act, 1986 (in short 'the Act') for the issuance of following directions to the opposite parties:
a. to complete the construction at the site and provide all the basic amenities alongwith occupation and completion certificate being duly issued by the competent authority;Consumer Complaint No 230 of 2019 3
b. to quash the letter dated 13.02.2015, Ex.C-18 and 07.05.2018, Ex.C-20 and further directed to issue fresh letter for possession and provide actual physical possession of the allotted plot after getting occupation/ completion certificate from the competent authority;
c. to direct the opposite parties to pay compensation @ 9% on the total deposited amount from the date the opposite parties were liable to give physical possession of the plot after providing occupation and completion certificate i.e. 19.06.2010 upto the date offer fresh physical possession through registered letter after obtaining occupation and completion certificate from the competent authority.
d. To pay Rs.50/- per sq. yards per month as per Clause 8 of the Plot Buyers Agreement dated 19.06.2007 till the opposite parties issue fresh registered letter to the complainant by offering the actual physical possession of the allotted plot after obtaining occupation and completion certificate; e. To pay Rs.1,00,000/- on account of compensation for causing mental tension, harassment and mental agony to the complainant; and f. To pay Rs.33,000/- as cost of litigation.
g. any other relief which this Commission may deem fit.
Consumer Complaint No 230 of 2019 4
2. Brief facts, as set out in the complaint, are that the complainant came into the contact of the opposite parties in the year 2006 who assured him that their project 'Augusta Greens' is in full swing construction and physical possession will be given within 2 years from the date of execution of the agreement. It was further informed to the complainant by the opposite parties that the project is cleared from all the concerned departments. Accordingly, the complainant purchased a plot by depositing a sum of Rs.10,35,000/- on 23.09.2009. On asking by the opposite parties, the complainant further deposited a sum of Rs.3,16,236/- against receipt dated 19.06.2007. The opposite parties further provided the Plot Buyer's Agreements issued in favour of the complainant on 19.06.2007. The opposite parties then allotted plot No.253 in Augusta Greens in Sector 109, Mohali, to the complainant. The basic sale price of the plot was fixed as Rs.34,50,000/-. The total sale consideration of the plot is Rs.40,50,354/-. As per clause 8 of the Buyer Agreement, the possession of the plot was to be delivered within two years from the date of execution of the agreement but not later than 3 years. Accordingly, the opposite parties were required to give the possession upto 19.06.2009 or at maximum upto 19.06.2010 and in case of delay the opposite parties would pay Rs.50/- per sq. yards per month for delay in possession. Against the total sale consideration the complainant paid a sum of Rs.40,50,355/- as per Ex.C-1 to Ex.C-2 and Ex.C-4 to Ex.C-16. The table detailed is as under:-
Consumer Complaint No 230 of 2019 5
Sr.No. Amount Date Exhibit
1 1035000/- 23.09.2006 C-1
2 316236/- 19.06.2007 C-2
3 316236/- 27.09.2007 C-4
4 488778/- 14.09.2009 C-5
5 11222/- 14.09.2009 C-6
6 333778/- 15.09.2009 C-7
7 166222/- 15.09.2009 C-8
8 100000/- 16.09.2009 C-9
9 178778/- 16.09.2009 C-10
10 104105/- 16.09.2009 C-11
11 274553/- 01.10.2009 C-12
12 225447/- 01.10.2009 C-13
13 172501/- 07.10.2009 C-14
14 172500/- 07.10.2009 C-15
15 154999/- 07.10.2009 C-16
Total 4050355
Vide letter dated 08.10.2009 issued by the opposite parties the delayed interest of Rs.4,24,360/- stands waived off. Thereafter, in the month of November, 2009 after clearing all the payments, the complainant requested the opposite parties to handover the physical possession complete in all respect with all basic amenities. The complainant repeatedly requested to give him the possession but till 2015, the possession was not handed over. Vide letter dated Consumer Complaint No 230 of 2019 6 13.02.2015, the complainant was asked to take the possession of the allotted plot. While visiting the site to take the possession, the complainant asked to produce occupation and completion certificate which the opposite parties were not having at that time. The opposite parties told the complainant to wait for more time till they get the occupation and completion certificate. Vide letter dated 24.02.2015, the complainant asked to give compensation of Rs.50/- per sq. yards per month on account of delay in offering the possession. The complainant further came to know that the Forest Department had sealed the entrance area and the opposite parties are not in a position to handover the possession till they themselves get the possession of the area. Vide letter dated 07.05.2018, the complainant was offered the possession of the allotted unit. The opposite parties again raised the charges on account of club membership, delayed payment charges and accordingly demanded a sum of Rs.15,56,365/-. Immediately after receiving the letter dated 07.05.2018, the complainant demanded for occupation and completion certificate and also raised objection with regard to the club membership and delayed payment charges. The opposite parties failed to pay the compensation as per Clause 8 of the agreement. Thereafter, on 08.02.2019 a legal notice was issued to the opposite parties with the request to withdraw their letter dated 13.02.2015 and 07.05.2018 and sought occupation and completion certificate from the opposite parties. To which, the opposite parties did not reply. This act and conduct of the opposite parties amounts Consumer Complaint No 230 of 2019 7 to deficiency in service and unfair trade practice. Hence, the present complaint.
3. Upon notice, opposite parties appeared and filed their written statement by taking preliminary objections that the complaint filed by the complainant is false and without basis. The complaint is liable to be dismissed being without any cause of action. The complaint is mis-joinder and non-joinder of necessary parties and deserves to be dismissed on this reason alone. The complainant is not a consumer as per provisions of the Act as the plot was purchased by the complainant for speculation purpose and for earning profit by way of resale. The complaint is barred by time as the complainant has allegedly raised the issue qua the alleged non-delivery of possession whereas the possession was offered to the complainant vide letter dated 13.02.2015 but he failed to take the possession. The complaint has been filed after the statutory period as prescribed under Section 24-A of the Act. It has been further averred that as per the settled principle of law mere exchange of correspondence does not extend the period of limitation and stale claim deserves to be rejected at the threshold and that the Hon'ble Courts should consider the question of limitation. The complaint is a gross abuse of process of law and is liable to be dismissed with exemplary costs. The complainant has not approached this Commission with clean hands as he has not disclosed the facts and misrepresented the material facts. The present complaint involves disputed questions of facts and law which would require adjudication by leading voluminous and detailed evidence which can only be adjudicated in a summary Consumer Complaint No 230 of 2019 8 procedure by the Civil Court. No cause of action is accrued to the complainant and there is no continuity of any alleged cause of action. The complainant is estopped by his own act and conduct from filing the instant complaint and the present complaint deserves to be dismissed being abuse of process of law. This Commission does not have the requisite jurisdiction to entertain the present complaint as there is a Section 8 which consist arbitration clause. As per Section -8 of the Buyers Agreement, the matter deserves to be referred to the Arbitrator. On merits, it is admitted that the complainant booked the plot with the opposite parties. The issuance of Buyer's agreement is also admitted. It is submitted that the agreement has to be read as a whole and no clause is to be read in isolation. It is further contended that the project of the answering opposite parties is a Mega Project and has duly been granted exemption from the operation of the provisions of PAPRA vide notification dated 22.12.2006. The opposite parties was also exempted from Section 14 of the PAPRA as per letter issued by PUDA bearing No.PUDA-STP/2013/484 dated 10.06.2013. There was no mandate or requirement for the opposite parties to obtain any occupation or completion certificate as has been wrongly alleged and claimed by the complainant. It is denied that the complainant raised any alleged objection regarding any alleged demands raised in the letter of intimation of possession dated 13.02.2015 regarding preferential charges, club membership and delayed payment charges. As per notification dated 02.09.2014, later issued by the Government, it doesn't supersede any previous notification on the Consumer Complaint No 230 of 2019 9 issue and does not require or mandate the promoter/ developer to take partial completion, which was issued on 16.10.2015. The other contentions are reiterated as detailed in preliminary objections. Rest all the averments as averred by the complainant in his complaint have been denied. There is no deficiency in service or unfair trade practice on the part of the opposite parties. The complaint filed by the complainant be dismissed as there is no merit in the complaint and the same has been filed just to take the undue benefit of the Act.
4. The complainant also filed rejoinder to the written statement filed by the opposite parties denying all the preliminary objections and contentions as detailed.
5. To prove his claim, the complainant filed his self attested affidavit along with documents as Ex.C-1 to ExC-23. On the other hand, the opposite parties filed the affidavit of Sh.Subrat Kumar Pradhan, DGM, Legal along with documents as Ex.OP-1, Ex.OP-2, Ex.OP-3(colly), Ex.OP-4 to Ex.OP-9, Ex.OP-10(colly), Ex.OP-11, Ex.OP-12(colly), Ex.OP-13(colly).
6. We have heard learned counsel for the parties appearing on their behalf and have carefully gone through the record.
7. Learned counsel for the complainant argued on the same line as in his pleadings in the complaint and vehemently contended that the complainant has purchased the plot, in question, from the opposite parties for a total sale consideration of Rs.40,50,354/- inclusive of EDC, PLC and other charges. The complainant paid the total consideration upto 07.10.2009. A Buyer's agreement was executed in favour of the complainant wherein the complainant was Consumer Complaint No 230 of 2019 10 allotted plot No.253 in their project. The possession was to be delivered by the opposite parties within a period of two years from the date of execution of this Agreement, but not later than three years. In default thereof, the opposite parties were to compensate the complainant by paying Rs.50/- per sq. yards per month for the delayed period. But neither the possession was offered of the said plot complete in all respect nor given any compensation in-spite of payment of substantial amount towards the price of the same. The complainants visited a number of times to the site but there was no progress. So far as the offer of possession, vide letter dated 13.02.2015, Ex.C-18, is concerned, the same is an eyewash as the project is still not complete as per the terms and conditions of the Buyer's Agreement and only Partial Completion Certificate has been placed on record, which is not sufficient. No 'Completion or Occupancy Certificate' as is required under Section 14 of the Punjab Apartment and Property Regulation Act, 1995 (in short, "PAPRA") has been obtained or produced on record by the opposite parties. Instead of compensating the complainant, the opposite parties putting the pressure to pay the other charges just to avoid their liability. The complainant is regularly demanding for occupation and completion certificates before taking the possession. This act and conduct of the opposite parties caused harassment and mental tension to the complainants. Thus, there is deficiency in service and adoption of unfair trade practice on the part of the opposite parties and the above mentioned directions are liable to be issued to the opposite parties.
Consumer Complaint No 230 of 2019 11
8. Per contra, it has been vehemently argued by learned counsel for opposite parties that the complainant has purchased the plot, in question, for resale purposes in order to earn huge profits and, as such, he does not fall within the definition of 'consumer' as defined under the C.P. Act. There is arbitration clause 39 in the Buyer's Agreement dated 19.06.2007, Ex.C-3, and the matter is required to be referred to the Arbitrator. This Commission does not have pecuniary jurisdiction to entertain and try this complaint. The complaint is barred by time. There are numerous disputed questions of facts and law which cannot be adjudicated in a summary manner before this Hon'ble Commission. The unit in question is fully complete and possession thereof already stands offered to the complainants, vide letter dated 13.02.2015. A Partial Completion Certificate, Ex.OP-9 has also been issued to the opposite parties on 16.10.2015. However, the complainant has not come forward to receive the possession and to make the payment pending against him. It is further submitted that the complainant after offer of possession is unlawfully seeking compensation and making hue and cry without any basis. There is no violation of the provisions of the PAPRA. The project is exempted under Section 14 of the PAPRA. The complainant is not entitled to any of the reliefs claimed in the complaint and the same is liable to be dismissed.
10.
9. We have given our thoughtful consideration to the respective contentions raised by the learned counsel for the parties.
10. Firstly, the opposite parties raised an objection that Consumer Complaint No 230 of 2019 12 complainant is not a consumer as per the provisions of the Act as the plot purchased by the complainant is for speculation purpose and for earning profits by way of resale. In this regard, it is relevant to mention that there is no evidence from the side of the opposite parties to prove that the complainant is indulging in sale/purchase of property for commercial purpose and simple assertion in this regard in the reply of the opposite parties is not sufficient to prove this fact. Hon'ble National Commission in M/s IREO FIVERIVER PVT. LTD. v. SURINDER KUMAR SINGLA & OTHERS First Appeal No.1358 of 2016, decided on 29.11.2016, while relying upon its earlier decision in KAVITA AHUJA & OTHERS v. SHIPRA ESTATE LTD. & JAI KRISHNA STATE DEVELOPERS PVT. LTD. & OTHERS Consumer Case No.137 of 2010, decided on 12.02.2015, held the complainants as consumers, observing that the appellant failed to show any cogent evidence, which may indicate that the respondents/ complainants or any of them has been indulging in sale purchase of the properties or that the complainants or any one of them had booked the subject plots in the development project undertaken by the appellant with the intention to sell the plot on subsequent date for earning profit. In the instant case also, as already discussed above, there is no evidence led by the opposite parties to prove that the complainant indulged in sale/purchase of properties or that he purchased the unit, in question, for further sale or for earning profits. Accordingly, the above said objection/contention of the opposite parties is rejected and the complainant is held to be a 'consumer', under the Act.
Consumer Complaint No 230 of 2019 13
11. Another objection raised by the opposite parties is that the complaint is liable to be dismissed being without cause of action. This plea raised by the opposite parties is without any basis or evidence and need not to be discussed. Hence, the point raised by the opposite parties is straightaway rejected.
12. The opposite parties raised another objection that the complaint is barred by time as the complainant was offered possession way back vide intimation of possession letter dated 13.02.2015. Admittedly the complainant made the full payment towards the price of the plot in question to the opposite parties upto October, 2009, whereas as per contention raised by the opposite parties, the possession was offered to the complainant on 13.02.2015, which as per the complainant was without Occupation and Completion Certificate despite repeated requests. It is now well settled law that in such cases there is a continuous cause of action till the possession is delivered or the amount is refunded along with interest, compensation and costs etc. Hon'ble National Commission in "Navin Sharma (Dr. ) & others v. Unitech Reliable Projects Pvt. Ltd. & Anr." 2016(2) CLT 457 has held that unless or until the complainants get possession of the flats, they have got continuous cause of action. In para 8 of the said judgment it has been observed by the Hon'ble National Commission as under:-
"8. The first submission made by the counsel for the opposite party was that the case is barred by time. This argument was Consumer Complaint No 230 of 2019 14 raised merely for the sake of cavil. It is now well settled that unless or until the complainants get the possession of the flats, they have got continuous cause of action. This view finds support from this authority reported in "Raghava Estates Ltd. v. Vishnupuram Colony Welfare Association" Special Leave to Appeal (Civil) No.35805 of 2012, decided on 07.12.2012."
13. Since neither possession has not been delivered to the complainant till date nor any compensation has been paid as per agreement and, as such, in view of the ratio of the law laid down in the above noted authority, it is a continuous cause of action and the complaint filed by the complainant is within limitation.
14. Another objection raised by the opposite parties is that the present case involves numerous disputed questions of facts and law and this Commission cannot adjudicate it in a summary manner and Civil Court is a proper court to decide the alleged controversy. In case we go through the pleadings as well evidence produced by the parties, the complainant had booked one plot with opposite parties and had paid the payment as demanded by opposite parties and all the terms and conditions were incorporated in the agreement issued by the opposite parties. As per the agreement the possession was to be delivered to the allottee within a period of two years from the date of execution of the Agreement, but not later than three years Consumer Complaint No 230 of 2019 15 complete with all the approvals and formalities. It is only the interpretation of the terms and conditions and then to see whether there is any deficiency in service on the part of the opposite parties? We do not see that any complicated questions of law and facts are involved, which cannot be adjudicated by this Commission. In this regard, we are fortified by the judgment of 'Dr.J.J.Merchant and Ors. V. Shrinath Chaturvedi' 2002(6) SCC 635, wherein it was held that the State Commission and District Forum are headed by retired High Court Judges and Officers of District Judge level and in our view, this is not such a case which cannot be decided by the 'Consumer Fora' after obtaining evidence and if need be after getting an expert opinion.
15. Further another objection has been raised by the opposite parties that the Commission does not have the requisite jurisdiction to entertain the present complaint as there is an arbitration clause in the Buyers agreement and in view of Section 8 of the Arbitration and Conciliation Act. 1996, the matter deserves to be dismissed. It is relevant to mention that the Larger Bench of the Hon'ble National Commission, vide order dated 13.07.2017, passed in Consumer Complaint No.701 of 2015 titled as "Aftab Singh Versus EMAAR MGF Land Limited & Anr. held that an Arbitration Clause in the afore-stated kind of Agreements between the complainant and the builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act. The Civil Appeal No.(s) 23512-23513 of 2017 (M/s EMAAR MGF Land Limited & Anr. Vs. Aftab Singh) filed against Consumer Complaint No 230 of 2019 16 the said order of the Hon'ble National Commission had also been dismissed by the Apex Court, vide order dated 13.02.2018. The Review Petitions (C) Nos.2629-2630 of 2018 have also recently been dismissed by the Hon'ble Apex Court on 10.12.2018. Consequently, the existence of an Arbitration Clause is not a bar to resolution of this dispute by this Commission. Accordingly, the said objection of opposite parties is hereby rejected.
16. Admittedly, the complainant booked one plot bearing No.253, measuring 300 sq. yards in the project of the opposite parties named Augusta Green in Sector 109, SAS Nagar, Mohali. A Plot Buyer's Agreement was executed between the parties on 19.06.2007, wherein the total sale consideration was mentioned Rs.40,50,354/-. As per Clause 8 of the agreement, the possession of the plot was to be delivered within a period of two years from the date of execution of the agreement but not later than three years, failing which a penalty of Rs.50/- per sq. yds, per month for the delayed period beyond three years from the date of execution of the agreement was to be paid. The relevant clause 8 is reproduced as under:-
"Subject to Force Majeure conditions and reasons beyond the control of the Company, the Company shall endeavor to deliver possession of the Plot to this Allottee within a period of 2 (Two) years from the date of execution of this Agreement, but not later than 3 (Three) years. In the event that the possession of the Plot is likely to be delayed for reason of any force majeure event of any other reason beyond the control of the Company including government strike or due to civil commotion or by reason of war or enemy action or earthquake or any act of God or if non delivery is a Consumer Complaint No 230 of 2019 17 result of any act, notice, order rule or notification of Govt. and any other public or Competent Authority or for any reason beyond the control of the Company, then in any of the aforesaid events, the Company shall upon notice claiming force majeure to the Allottee be entitled to such extension of time till the force majeure event persists or the reasons beyond the control of the Company exists. In the event that the Company fails to deliver possession of the Plot without existence of any force majeure event or reason beyond the control of the Company within a maximum period of 3 (Three) years from the date of execution of this Agreement, the Company shall be liable to pay to the Allottee, a penalty of the sum of Rs.50/- (Rupees Fifty Only) per sq. yds per month for such period of delay beyond 3(Three) years from the date of execution of this Agreement."
17. As per Ex.C-1, Ex.C-2, Ex.C-4 to Ex.C-16, the complainant has paid a sum of Rs.40,50,355/- upto 07.10.2009. The opposite parties vide letter dated 08.10.2009, Ex.C-17 informed the complainant that the delayed interest of Rs.4,24,360/- stands waived off. The complainant was intimated for possession vide letter dated 13.02.2015. In the letter, it was also stated that there has been a revision in the EDC by the Government of Punjab and accordingly he is required to remit Rs.72,996/- along with other charges like PLC, EC, Registration Charges, Stamp Duty Charges, IFMS, Electricity Connection Charges etc. Another condition under the head of Physical Possession was mentioned that "After the clearance of full and final dues by you, the plot shall be measured in your presence and physical possession of the plot will be handed over to you within the time stipulated above. Two copies of Handover of physical Consumer Complaint No 230 of 2019 18 possession will be signed by you and the company's representative.
18. In letter dated 24.02.2015, the complainant wrote to the opposite parties, wherein the complainant stated that he was promised to give Rs.50/- per sq. yard for delayed possession and the amount of Rs.4,11,655/- waived off as he paid lump sum amount to the opposite parties. On 07.05.2018, Ex.C-20, the complainant was issued possession reminder letter wherein the complainant was offered possession of the unit, in question, and was further asked to clear the dues as detailed in the letter which is Rs.15,56,365/-.
19. On the other hand, the opposite parties have tendered a notification issued by Department of Housing & Urban Development, Government of Punjab, Ex.OP-4, wherein for setting up the project of M/s Emaar MGF Land Private Limited in the area of 390.71 acres at Sector 108 and 109, SAS Nagar is exempted from all provisions of the Punjab Apartment & Property Regulation Act, 1995 (Punjab Act No.14 of 1995), except Section 32, subject to various terms and conditions. As per condition No.(vii) the opposite parties before starting the development of the proposed project promoter shall obtain environmental clearance from the Ministry of Environmental & Forest Government of India as required under EIA notification dated 14.09.2006 as well as consent to establish from the Punjab Pollution Control Board. As per Ex.OP-6, the opposite parties were also given exemption under Section 44(2) of PAPRA granted to EMAAR MGF Land Ltd. Vide Ex.OP-8, a notification dated 02.09.2014 wherein it has been defined that under what terms Partial Completion can be issued for various types of projects under various conditions as Consumer Complaint No 230 of 2019 19 detailed hereunder:-
"i. The minimum area for which partial completion certificate is sought should not be less than 25 acres.
ii. The layout of entire project area should be demarcated at site as per approved layout plan.
iii. The construction of approach road to project and connectivity to all the public utilities and services is complete and operational.
iv. All the public utilities and services should be operational in that part of project for which partial completion certificate is sought viz; Water supply, sewerage, Storm Water drainage, Fire Fighting Services, HT/LT Street Light, Parks etc. and outfall sewer line should be laid upto Sewage Treatment Plant.
v. Mandatory clearances such as Environment clearance, Fire safety, NOC from National Highway Authority in case of approach from N.H., NOC from forest Deptt. For the entire project, should have been obtained, if applicable.
vi. Test Certificate for commissioning of Transformers duly issued by Chief Electrical Inspector, Punjab. vii. NDC for upto date payments of due charges and fees from the concerned development authority for entire Project.
viii Proportionate construction of E.W.S. Houses or transfer of land reserved for EWS to the Development Authority as per policy should be complete.
ix. Arrangements for water harvesting system as per approved plan.
20. The opposite parties were issued Partial Completion Certificate on 16.10.2015 (Ex.OP-9) for Mohali Hills Project i.e. Integrated Township with Special Education & Wellness Zone, Consumer Complaint No 230 of 2019 20 Sector 99, 104, 105, 106, 108 & 109 whereas the opposite parties got NOC from Forest & Wild Life Protection Department, Punjab on 16.01.2018, Ex.OP-11. It is clear violation of condition No.(vii) which states that before starting development of the project, the promoter was to obtain environment clearance but in this case, clearance has been obtained on 16.01.2018.
21. Now the issue is to decide whether the complainant is entitled for interest on the deposited amount as well as for compensation on account of delayed possession or not and whether the demand raised by the complainant to quash the letter dated 13.02.2015 and 07.05.2018 is genuine?
22. In this regard, we have perused the record. As per agreement, the possession of the plot was to be given to the complainant within 3 years from the date execution of the agreement. The complainant paid all the sale consideration i.e. Rs.40,50,355/- upto 07.10.2009, whereas the agreement was executed 19.06.2007. It cannot be denied that the complainant is paying the instalments to the opposite parties since 2006 and if take the date of agreement i.e. 19.06.2007 still the complainant paid all his instalments before the stipulated date of possession i.e. 18.06.2010.
23. The Partial Completion was issued to the opposite parties on 16.10.2015, subject to various terms and conditions. One of the condition was the Promoter shall comply with the conditions of approval/ NOC from State Level Environment Impact Assessment Authority, Punjab issued dated 18.06.2008. On the other hand, as Consumer Complaint No 230 of 2019 21 per the version of the complainant the area was sealed by the Forest Department. The NOC obtained by the opposite parties in the year 2018 as stated in para 20 above.
24. On the other hand, some other conditions were also detailed in the Partial Completion Certificate but the opposite parties have failed to show their bona fide whether they have complied with all the terms and conditions detailed in the Partial Completion Certificate. As per Clause 23 the company shall be responsible to provide internal services within the project, which, inter alia includes laying of the roads, water lines, electrical lines etc. However, it is understood that external or peripheral services such as water lines, sewer lines, storm water drains, roads, electricity, horticulture and other such services integral to the infrastructure are to be provided by the State Government authorities and or the local authorities.
25. No doubt, that as per the above clause the possession of the fully developed plot over which, construction can be raised, though EMAAR MGF Project is a part of Mega Housing Project, but it cannot be said that piece of land will be sold to a consumer, without making any development.
26. On the other hand, the fact with regard to sealing of the entry point is admitted by the opposite parties in their reply, though it is stated that there was still adequate access to the project and to the plot of the complainant i.e. through a motorable road and stand of the complainant. The opposite parties kept mum on the point that what measures they took to resolve the issue of sealed entry point.
27. The possession as per the agreement was to be offered at Consumer Complaint No 230 of 2019 22 the most by 19.06.2010 but the possession was offered to the complainant on 13.02.2015 without taking the Forest Clearance, which is one of the condition of the Partial Completion Certificate, violated by the opposite parties and the same was obtained on 16.01.2018, which is deficiency in service and unfair trade practice on the part of the opposite parties. Accordingly, the complainant is entitled for the compensation from the fresh offer of possession letter after obtaining the NOC from Forest Department. May be the opposite parties were exempted from PAPRA but it is well settled law that a possession is meaningless if the conditions as detailed in the Partial Completion Certificate are not complied with.
28. Sequel to the above discussions, the complaint filed by the complainant is allowed and letter dated 13.02.2017 and 07.05.2018 are quashed and the opposite parties are directed as under:-
i) to issue a fresh offer of possession letter of the allotted plot to the complainant with Completion and Occupation Certificate complete in all respects, subject to balance sale consideration, if any, without interest and penalty;
ii) to pay penalty at the rate of Rs.50/- per sq. yards, per month from the stipulated date of possession i.e. 19.06.2010 till the fresh possession is offered as per relief clause (i)
iii) to pay compensation of Rs.50,000/- on account of mental agony, harassment as well as litigation expenses. Consumer Complaint No 230 of 2019 23
29. The opposite parties shall comply with the above said directions within a period of one month from the receipt of the certified copy of the order.
30. Arguments in this complaint were heard on 04.09.2019 and the order was reserved. The certified copies of the orders be communicated to the parties, as per rules.
31. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(RAJINDER KUMAR GOYAL) PRESIDING MEMBER (KIRAN SIBAL) MEMBER September 20,2019 parmod