National Consumer Disputes Redressal
Amitava Neogi 7 Anr. vs Orbit Corporation Limited & Anr. on 17 July, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 597 OF 2015 1. AMITAVA NEOGI 7 ANR. ...........Complainant(s) Versus 1. ORBIT CORPORATION LIMITED & ANR. 2. Ahinsha Build Tech. Private Limited., . ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER
For the Complainant : Mr. Jitendra Malkan, Advocate For the Opp.Party : Mr. Arun Batta, Advocate
Dated : 17 Jul 2017 ORDER
JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL)
The complainants mentioned hereinabove, are allottees of residential flats in a project namely Orbit Residency Park which the OPs namely Orbit Corporation Limited and Ahinsha Build Tech Pvt. Ltd. were to develop on the land of Old Orkay Mills Compound, near the then upcoming Sakinaka Metro Station in Andheri (East), Mumbai. The OPs allotted one residential flat to each complainant/complainants in the aforesaid project. The sale consideration inclusive of all charges is stated to have been agreed at Rs.89,92,585/-, Rs.92,25,420/-, Rs.89,84,830/-, Rs.91,31,450/-, Rs.90,60,746/- & Rs.99,24,144/- in CC No.130/2015, 166/2015, 167/2015, 541/2015, 679/2015 & 1168/2015 respectively. In addition to the aforesaid charges, the complainants were also required to pay taxes applicable from time to time. The aforesaid complainants claim to have already paid Rs.44,17,920/-, Rs.44,93,400/-, Rs.70,78,499/-, Rs.50,00,000/- & Rs.46,45,492/- respectively in CC No.130/2015, 166/2015, 167/2015, 541/2015, 679/2015 & 1168/2015 respectively to the OPs. The amount of tax payable upto 30.06.2017 at the then prevailing rate of 5.5% comes to Rs.2,42,985/-, Rs.2,47,137/-, Rs.3,89,370/-, NIL in CC/541/2015, Rs.2,55,502/- & Rs.3,43,750/- respectively whereas the amount of tax payable at the GST applicable w.e.f. 01.07.2017 comes to just Rs.5,48,960/-, Rs.5,67,842.5/-, Rs.2,28,760/-, nil in CC/541/2015, Rs.5,29,830/- & Rs.4,26,668/- respectively in CC No.130/2015, 166/2015, 167/2015, 541/2015, 679/2015 & 1168/2015.
In CC No. 277/2015, 597/2015, 599/2015, 600/2015, 601/2015, 632/2015, 633/2015, 634/2014, 645/2015, 647/2015, 648/2015, 678/2015 & 1167/2015, the agreed consideration was itself more than Rs.1 Crore in case of each allotment.
2. In some cases, the OPs have executed the sale agreements with the flat buyers whereas in other cases, only allotment letters have been issued. The possession for the limited purpose of interiors and fit-outs was to be provided to the flat buyers within 36 months from the date of the second installment. Computed on the basis of the date on which the second installment was paid, the following were the dates agreed between the parties for making the flat available to the buyers for interiors and fit-outs.
CC No.
Date stipulated for delivery of possession
130/2015
09.12.2013
166/2015
03.08.2013
167/2015
11.08.2014
277/2015
05.02.2014
541/2015
26.07.2014
597/2015
29.01.2016
599/2015
29.03.2014
600/2015
28.03.2016
601/2015
08.02.2016
632/2015
11.07.2015
633/2015
11.02.2016
634/2015
19.05.2014
645/2015
08.06.2015
647/2015
12.08.2015
648/2015
15.02.2013
678/2015
11.02.2016
679/2015
05.07.2014
1167/2015
21.07.2015
1168/2015
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3. The OPs having failed to complete the construction of the flats allotted to the complainants and having failed to offer possession for interiors and fit-outs, the complainants have approached this Commission by way of these individual complaints seeking primarily the delivery of possession of the flats in a time-bound manner alongwith compensation in the form of interest etc. They are also seeking the cost of litigation from the OPs.
4. The complaints have been opposed by the OPs claiming that there was no defect on their part in rendering services to the complainants. They have claimed that the institution of the complaints is pre-mature. It is also alleged that LIC Housing Finance Ltd. from which a loan had been taken by OP No.1 having taken possession of the property on which the project was coming up, the construction activity got stalled. It is also alleged that though possession still continuous with LIC Housing Finance Ltd., OP No.2 was allowed to carry on construction till the date which was extended from time to time. It is claimed that the project in question has been delayed on account of necessity to obtain the environmental clearance as per the revised policy of the Government. It is alleged that though OP No.2 had applied for the requisite environmental permission on 28.02.2012, State Environment Impact Assessment Authority (SEIAA) granted permission restricting the total built-up area of the project subject to certain conditions only in its meeting held in September 2015. In some of the complaints, the OPs have also questioned the pecuniary jurisdiction of this Commission.
5. The first question which arises for consideration in some of the complaints is as to whether this Commission possesses the requisite pecuniary jurisdiction to entertain the complaints or not. In terms of Section 21 of the Consumer Protection Act, this Commission would have pecuniary jurisdiction to entertain the complaint where the value of the goods or services as the case may be and the compensation if any claimed in the complaint, exceeds Rs.1 Crore. The value of the services in such cases would be sale consideration agreed between the parties, as held by a three-Members Bench of this Commission in Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd. Since the taxes were also payable to the OPs in addition to the price of the flat, the said taxes have also to be added to the price of the flat, in order to determine the aggregate sale consideration agreed between the parties, as held by this Commission vide order dated 31.1.2017 passed in Consumer Complaint No. 198 of 2015 - Dushyant Kumar Gupta Vs. Today Homes & Infrastructure Pvt. Ltd. and connected matters. In the past, this Commission has awarded compensation in the form of interest @ 12% per annum in the cases where the flat buyer is seeking possession of the flat allotted to him alongwith compensation. If the compensation calculated @ 12% per annum is added to the sale consideration agreed between the parties inclusive of the taxes which, according to the learned counsel for the complainants, were payable to the OPs, the aggregate figures come to more than Rs.1 Crore in each of these consumer complaints. Therefore, I find no merit in the contention that this Commission does not possess the requisite pecuniary jurisdiction to entertain the complaint.
6. Coming to the merits of the case, the main plea taken by the OPs is that the Government of India prescribed the requirement of obtaining environmental clearance in respect of projects admeasuring more than 20,000 sq. metres, they had to apply for the said clearance and since the clearance was given only in the meeting held in September 2015, the OPs cannot be held responsible for the delay in completion of the project.
7. A perusal of the minutes of the 7th meeting of the State Level Environment Impact Assessment Authority-2 held on 1st, 2nd and 3rd January 2013 would show that initially, the total built-up area proposed by the builder was less than 20,000 sq. metres and therefore, the project was not under purview of EIA notification. It was noted in the meeting that the construction stage was plinth level without basement at the time of the meeting. The minutes also indicate that the OPs had carried out amalgamation of plots as a result of which the total built-up area became more than 20,000 sq. metres. The Committee noted that though initially the area to be constructed was below 20,000 sq. metres, now that area became part of the expanded project.
8. A perusal of the minutes of the SEIAA-2 held on 20th to 23rd July, 2015 would show that the revised construction area of the project was 55556.7 per sq. meters. The aforesaid construction was to be done on an area of 14281.5 sq. meters. The Committee therefore, appraised the project under EIA notification of 2006 and decided to recommend the project to SEIAA for environmental clearance subject to compliance of four points mentioned in the minutes.
9. The learned counsel for the OPs states on instructions from the Consultant of the OPs namely Mr. Deepak Singhai who is present in the Court, that the approval for the construction of the project was granted in phases. The Consultant however, is unable to inform as to on which date how much area for construction was proposed by the Municipal Corporation of Greater Mumbai. The learned counsel for the OP states that they not in a position to inform as to on which dates the different proposals to the Municipal Corporation of Greater Mumbai were submitted for approval and what was the area proposed on different dates. Neither the Consultant nor the learned counsel for the OPs are in a position to inform this Commission as to when the amalgamation of the plots referred in the report of the Committee was carried out.
10. The learned counsel for the OPs has drawn my attention to the notification dated 14.09.2006 issued by the Government of India, Ministry of Environment & Forests as well as to a subsequent notification issued by the said Ministry on 04.04.2011 and has contended that on account of the notification dated 04.04.2011, the OPs were required to obtain environmental clearance even with respect of the area which had already been approved for construction. This is also his submission that before issuance of the notification dated 04.04.2011, the total area proposed for construction was 19734.28 sq. metres which after the notification, became 36,943.64 sq. metres without merger of the plots. However, neither there is an averment to this effect in the written version nor is any document filed by the OPs to show that the area approved for construction prior to issuance of the notification dated 04.04.2011 was 19734.28 sq. metres and after notification, the said area became 36,943.64 sq. metres. A perusal of the notification dated 14.09.2006 would show that no definition of built-up area for covered construction was given in the said notification though it was stipulated that environmental clearance would be required where the area was more than 20,000 sq. metres but less than 1,50,000 sq. metres. The notification dated 04.04.2011 only clarified what the built-up area for the purpose of environmental clearance would be. Therefore, it is difficult to say that there was a change of law as far as the applicability of environmental clearance is concerned. There is no evidence of the Municipal Corporation of Greater Mumbai having written to the OPs that the approval granted by it prior to 04.04.2011 had become invalid after the issuance of the notification dated 04.04.2011 and they were required to obtain environmental clearance before proceeding with further construction of the project. In the absence of such an objection from the Municipal Corporation of Greater Mumbai, the OPs, in my view, could have continued with the construction on the basis of the approvals already granted to them by the Municipal Corporation of Greater Mumbai had they not chosen to amalgamate another plot with the plot for construction on which the approvals had been obtained prior to 04.04.2011. At no stage, the OPs informed the flat buyers that on account of issuance of the notification dated 04.04.2011 by the Government of India, Ministry of Environment & Forests, the permission which they had obtained from the Municipal Corporation of Greater Mumbai had become invalid and therefore, they were required to obtain the requisite environmental clearance in respect of the flats booked by them. As regards LIC Housing Finance Ltd. having taken over the land on which the project was to be developed, the flat buyers cannot be penalized for the OPs defaulting in payment of their contractual obligations towards LIC Housing Finance Ltd. leading to a situation where the institution had to take recourse to taking suffered property itself. Moreover, it is the case of the OPs themselves that despite LIC Housing Finance Ltd. having taken over the property, they were permitted to continue construction of the project.
11. In my view, the OPs have failed to prove that the completion of the construction of the flats booked by the complainants has been delayed on account of reasons beyond their control.
12. The next question which arises for consideration is as to what should be the appropriate order to be passed in the facts and circumstances of these cases. The complainants want to have possession of the flats booked by them at an early date. The OPs, despite having obtained the environmental clearance, are not in a position to tell this Commission as to within how much time they will be able to complete the construction, obtain the requisite occupancy certificate and deliver possession of the flats to the complainants. Therefore, it has fallen upon this Commission to stipulate a time frame for completion of the construction and delivery of possession of the flats to the complainants.
13. As far as payment of compensation for the delay in delivery of possession of the flats is concerned, the learned counsel for the complainants states on instructions that the complainants are pressing for payment of compensation in the form of interest @ 9% per annum, in order to avoid further litigation in the matter by the OPs and also considering the recent downward trend in the prevailing rates of interest. The complaints are therefore, disposed of with the following directions:
1) The OPs shall complete the construction of the flats allotted to the complainants in all respects and make the same available for the limited purpose of interiors and fit outs on or before 31.12.2018.
2) The OPs shall obtain the requisite occupancy certificate and offer legal possession of the flats allotted to the complainants on or before 31.03.2019.
3) The OPs shall pay compensation in the form of simple interest @ 9% per annum on the amount paid to them by the complainants with effect from the date by which the flats were required to be made available for the interiors and fit outs till the date on which the same are actually made available for the limited purpose of interiors and fit outs after completing the construction in all respects.
4) If the OPs, after making the flats available to the complainants for the interiors and fit outs in terms of this order, are not able to obtain the occupancy certificate and offer legal possession thereof to the complainants within three months of making the flats available for the interiors and fit outs, it shall also pay additional compensation in the form of simple interest @ 9% per annum w.e.f. three months from the date on which the flat is made available for fit outs and interiors till the date on which its legal possession is offered to the complainants.
5) The OPs shall also pay Rs.10,000/- as the cost of litigation, in each complaint.
......................J V.K. JAIN PRESIDING MEMBER