Ajit Bharihoke, Presiding Member

Opposite Party No.1 M/s Jaiprakash Associates Limited is an infrastructure company engaged in construction and sale of residential and commercial properties in Delhi / NCR. Opposite Party No.2 M/s Jaypee Greens is a subsidiary company of Opposite Party No.1. Opposite Party No.3 is stated to be Executive Chairman and CEO of entire Group of Companies i.e. Jaiprakash Associates.

2. The complainants have filed the instant complaint on the allegations that opposite parties had undertaken development of Town Houses at Jaypee Greens, Greater Noida. As per the brochure of the opposite parties, the township offered a holistic living experience through the perfect amalgamation of residential, commercial, institutional and recreational facilities. As per the master plan shown by the opposite parties to the complainants, the project Jaypee Greens, Greater Noida was spread over 452 acres and project was to be comprised of independent estate homes, independent villas, independent houses on 300 square yards plots, apartments of 5 storeyed, apartments of 10 storeyed, golf resort, golf club, sports academy and commercial building etc. Lured by the projection of the development project, 'Jaypee Greens, Greater Noida', the complainants booked an independent Town Home on 300 sq. yards plot in Jaypee Greens.

3. It is the case of the complainants that as per the representation of the opposite parties, the Town Home booked by the complainants was supposed to be surrounded by three storeyed Town Houses and 10 storeyed mid rise apartments as shown in the master plan dated 27.12.2005. It is alleged that after the allotment and delivery of the possession of said Town Home, the opposite parties in utter violation of the master plan dated 27.12.2005 shown to the complainants started constructing 20 storeyed high rise apartments, namely, Star Courts 1, 2,3,4, 5 & 6 in place of three storeyed Town Houses besides 32 storeyed apartments known as Sun Court 1,2,3 &4 in place of 10 storeyed apartments. It is alleged that construction of said high rise apartments have completely blocked the sun light to the Town Home purchased by the complainants. Not only this, the reflection of light from glass panes from the surrounding high rise buildings falls directly on the room / bedrooms of the complainants and is a cause of great inconvenience.

4. The complainants being aggrieved of the aforesaid act of the opposite parties lodged protest vide email at the address help.desk@jaypeegreens.com on 27.11.2011. The second protest was again submitted vide email dated 01.10.2012 clearly mentioning that because of construction of high rise towers, the view and sunlight of subject Town Home purchased by the complainants was blocked. No solution, however, was offered by the opposite parties. The complainant followed up his protest by sending further emails to the opposite parties on 17.02.2011, 26.04.2012 and 29.04.2012.

5. It is further the case of the complainants that opposite parties finally responded vide reply mail dated 08.05.2012 denying any contravention of master plan. The opposite parties claimed that high rise towers were part of initial plan. Therefore, no action could be initiated on the issue raised by the complainants.

6. Ultimately, the complainants approached K C Batra ( Commercial and Legal Department of Jaypee Greens) on 16.09.2013 and explained their grievance in detail. The said meeting was followed by meetings dated 11.12.2013, 21.02.2014. It is alleged that Mr. Batra in kind of admission to the alteration of master plan stated that it was not possible to alter the plan of high rise construction. However, in order to compensate the complainants, Mr. Batra agreed to the proposal of complainants for allotment of one BHK flat in the same project to which sunlight was not blocked. Mr. Batra asked the complainants to meet one Arun K Patro and finalized the inventory no. CRE-002-2002 for the complainants. The opposite parties also blocked one apartment in SAF for the complainants. The complainants, however, were later on shocked to learn that the blocked flat was finally released for sale by the same Mr. Arun k Patro vide email dated 29.03.2014. The complainants then informed Mr. Batra about the situation and requested him to allot the aforesaid one BHK apartment to them but Mr. Batra started avoiding the complainants. Feeling helpless, the complainants wrote a letter dated 28.04.2014 to OP No.3 requesting him to look into the matter. OP No.3, however, did not respond to the letter. It is alleged that complainants kept on following the matter but in vain. Being aggrieved of the unresponsive attitude of the opposite parties, the complainants have filed the instant complaint alleging that opposite parties by indulging in fraud and misrepresentation has committed unfair trade practice.

7. OP Nos.1 & 2 filed a joint written statement denying the allegation of misrepresentation. According to OP Nos. 1 & 2, the complainants approached the opposite parties for allotment of one Town Home in the project 'Town Houses' in Green Ville, Jaypee Greens, Greater Noida vide application dated 01.02.2006. The applicants at the time of application were fully aware that scheme of development undertaken by the opposite parties was tentative and it was subject to change. It is contended that even in the conveyance deed, it was categorically recorded that vendor shall be entitled to construct and or install such other buildings as may be decided by the vendor on the leased land and that vendee has reviewed the plans and has been made aware that the plans are tentative and there may be variations, deletions, additions or alterations by the vendor in its sole discretion or in pursuant to requirements of governmental authority. OP Nos. 1 & 2 has contended that at the time of handing over of the possession of Town Home to the complainants, the construction of the adjoining building was almost complete and finishing work was going on. It is alleged that complainants after getting possession of Town Home did not raise any complaint whatsoever regarding adjoining buildings for almost 1 year. Thereafter the complainants started making baseless complaints.

8. Regarding one BHK apartment, OP Nos. 1 & 2 alleged that complainants approached the opposite parties to block one BHK apartment and the opposite party acting bonafide on the request of the complainants blocked one apartment and sent an email dated 26.02.2014 to the complainants to pay the booking amount for the same. The complainants instead of paying the booking amount insisted that flat be handed over to them free of cost failing which the complainant had threatened to file consumer complaint, which demand was rejected by the opposite parties. OP Nos. 1 & 2 thus pleaded that they have not indulged in unfair trade practice nor there is any deficiency in service on their part.

9. The complainants have filed affidavit of complainant no.1 in support of the complaint alongwith annexures referred to in the affidavit. The opposite parties have also filed affidavit of Rajinder Kumar Anand, President ( commercial) alongwith relevant annexures.

10. We have heard complainant no.1 on behalf of the complainants as also the learned counsel for the opposite parties and perused the record.

11. It is not disputed that complainants vide application dated 01.02.2006 applied for Town Home constructed on 300 sq. yd. plot in the development project of opposite parties known as 'Jaypee Greens'. It is also not in dispute that pursuant to the application subject Town Home was allotted to the complainants for total consideration of Rs.1,11,22,829/-. It is also not in dispute that on the complainants fulfilling their part of allotment agreement, possession of Town Home was given to the complainants vide possession letter dated 02.03.2010 which was duly signed by the complainants and that conveyance deed of the said Town Home No. TH-21/6, Jaypee Greens, G Block Surajpur Kasana Road, Greater Noida was executed and got registered in favour of the complainants.

12. The contention of the complainants is that the opposite parties have indulged in unfair trade practice by luring the complainants to purchase the subject town home by showing them a master plan of the development project according to which the apartment blocks surrounding the subject town home were supposed to be 10 storeyed whereas subsequently the opposite parties altered the plan and constructed high rise apartments going up to 21 to 32 storeyes. It is contended that because of aforesaid high rise apartments, the sunlight and air to the subject town home of the complainant is obstructed and even the glare of glass panes of high rise apartments fall on town home of the complainants resulting in grave inconvenience to the complainants. It is argued that plea of the complainants regarding allurement and misrepresentation on the part of the opposite parties stands substantiated by the fact that in order to compensate the complainants Mr. K C Batra ( Commercial and Legal Department of Jaypee Greens) after hearing the grievance of the complainants on 16.09.2013 followed by two meetings dated 11.12.2013 and 21.02.2014 agreed to the proposal of the complainants for allotment of one BHK flat in the same development project to which sunlight was not blocked as compensation to the complainants, which flat ultimately was not blocked for complainants and released for sale to someone else.

13. Learned Shri Krishnan Venugopal, Sr. Advocate, on the contrary has argued that consumer complaint filed by the complainants is frivolous. It is argued that plea of the complainants regarding misrepresentation by the opposite parties is obviously false for the reason that perusal of the application form for allotment of town home submitted by the complainants would show that vide the application form, the complainants gave an undertaking, clause 5 of which clearly stipulates that complainants have signed and understood the scheme of development, tentative plans and other documents and they agreed to abide by all terms and conditions of GNIDA / other authorities or any other condition which the opposite party may prescribe. It is argued that from this it is clear that even at the time of application, the complainant were aware that the development plans shown to them were only tentative and were subject to change. Learned senior counsel has drawn our attention to conveyance deed and submitted that in clause 5 of the conveyance deed dealing with ‘Representation and Warranties of the Vendee’, it was clearly stipulated that vendee complainants understood and acknowledge that the vendor shall be entitled to construct or install such other buildings as decided by the vendor and that the vendee complainants have been made aware and they accepted that plans of the opposite parties are tentative and there may be variations, deletions, additions, alterations in the plan as per the sole discretion of the opposite party vendor. It is argued that from the above clauses in the application form and conveyance deed, it is crystal clear that complainants at the time of application for allotment of Town Home were fully aware that the development plan of the opposite parties were tentative and subject to change. Thus, it cannot be said that complainants were lured into applying for allotment of town home by misrepresentation on the part of the opposite parties.

14. We have considered the rival contentions and perused the record. The basic question which needs consideration is whether or not, the complainants were lured into booking the subject Town Home by misrepresentation on the part of the opposite parties that surrounding apartment blocks shall not be of the height more than 10 storeys?

15. In order to find answer to this question, it would be useful to have a look on the relevant documentary evidence. The complainants have placed on record various documents, namely, copy of the application for allotment of Town Home submitted by the complainants as also the copy of Standard Terms and Condition of Lease Deed duly signed by the complainants. In the application form, there is an undertaking clause which has been signed by the complainants. Clause 5 of the undertaking reads as under:

'I/We have seen and understood the scheme of development, tentative plans/other documents as shown by the Company at Jaypee Greens and I / We also agree to abide by all the terms and conditions of GNIDA/any other statutory or civic authority, or any other condition which the Company may prescribe, to which the Company, including the Applicant, is subject to.'

16. Further Clause 6 of Standard Terms and Conditions of the Lease Deed deals with Representation and Warranties of the Allottee. Clause 6.5 of the aforesaid clause 6 reads as under:

'The allottee acknowledges and understands that the Demised Premises is located near, adjacent to or borders upon a gold course and that construction, post-construction and normal operational activities on the gold course may be different that those normally associated with a residential neighbourhood. Therefore, the Allottee shall not object to and shall not interfere, in any way, with activities on the gold course may be different that those normally associated with the establishment, construction, development and operation of the golf course and / or residential, commercial, recreational and other developments as may, from time to time be undertaken by the Company, members of the gold course or other Persons permitted to enjoy the facilities of Jaypee Greens. This includes but shall not be limited to entering upon Jaypee Greens by the Company, member of the golf course or other Person permitted to enjoy of the golf course as may be required for the purpose of construction, development of the golf course and / or residential, institutional, recreational and other developments undertaken by the Company at Jaypee.'

17. On conjoint reading of the aforesaid two clauses, it is clear that at the time of application, the complainants were aware that plans of development shown to them were tentative and were subject to change. The above conclusion is strengthened from the following terms and conditions of the conveyance deed dated 27.03.2010 executed between the parties.

'5.4 That the vendee acknowledges and understands that the Demised Premises is located near, adjacent to or borders upon a golf resort, sports complex, etc., and that construction, post-construction and normal operational activities on the golf resort, sports complex, etc. may be different than those normally associated with a residential neighbourhood. Therefore, the Vendee agrees and undertakes that the Vendee shall not object to and shall not interfere, in any way, with the establishment, construction, re-development, renovation and/or operation of the golf resort, sports complex, etc. and/or residential, commercial, institutional, recreational and other developments/activities as may, from time to time be undertaken by the Vendor, members of the golf resort, sports complex, etc. or other persons permitted to enjoy the facilities and Jaypee Greens. The Vendee further agrees to and shall not object to and shall not interfere, in any way, with the entering upon the Leased Land by the Vendor, members of the golf resort, sports complex, etc. or other persons permitted to enjoy the facilities at Jaypee Greens as may be required for the purpose of utilisation of the facilities at Jaypee Greens, construction and/or development and/or operation of the golf resort, sports complex, etc. and/or residential, institutional, recreational and other developments undertaken by the Vendor at Jaypee Greens.

5.7 That the Vendee understands and acknowledges that the Vendor shall be entitled to construct and/or install such other buildings and/or such other things as may be decided by the Vendor on the Leased Land including but not limited to sidewalks, pavements, sewers, water mains, other local improvements, as may from time to time be deemed necessary by the Vendor.

That the Vendee has reviewed the Plans and has been made aware of and accepts that the Plans are tentative and that there may be variations, deletions, additions, alterations made either by the Vendor as it may in its sole discretion deems fit and proper or by or pursuant to requirements of a Governmental Authority, which alterations may involve changes, including change in the surroundings of the Demised Premises, change in the number of units, change in the height of the buildings, change in number of buildings, change in the nature of usage of the buildings, etc., and the Vendee hereby gives his consent to such variations, additions, deletions, alterations and modifications as aforesaid (the 'Permitted Alterations').

That the Vendee further agrees that nothing herein shall be construed to provide the Vendee with the right to prevent the Vendor from:

(i) constructing or continuing with the construction of the other building(s), Estate Homes/Villas/Townhomes/Apartments or other structures in the area adjoining the Demised Premises;

(ii) putting up additional constructions, residential, commercial or of any other kind at Jaypee Greens;

(iii) amending/altering the Plans as defined above.'

18. On reading of above clauses, it is clear that at time of execution of conveyance deed, the complainants were aware that some other construction activities around the subject Town Home would be undertaken by the opposite party and the complainants had given a clear undertaking that opposite parties shall be entitled to construct and / or install such other buildings as may be decided by the opposite parties on the leased land of the developm

ent project and vide clause 5.4, the complainants gave an undertaking that they shall not interfere in the aforesaid development cum construction activity undertaken by the complainants in any manner whatsoever. Clause 5.7 records that the complainants before the execution of conveyance deed were aware of the revised construction plans of the opposite party and agreed that nothing contained in the conveyance deed shall give right to the complainants to prevent the opposite party for constructing the apartments, putting up additional construction and altering the plans of development. 19. In view of the above stated documentary evidence, we do not find the version of the complainants reliable. Had it been true that complainants were lured into buying the property due to misrepresentation, the complainants would not have given unqualified undertaking that he would not interfere with any construction undertaken by the opposite party. 20. The complainants have tried to convince us that only because the opposite party was at fault, opposite party offered the complainants one sun facing BHK flat in one of the adjoining tower free of cost. We do not find any cogent evidence in this regard. Merely because, the complainants had approached for booking one bedroom flat in an adjoining tower and it was directed to be blocked for him, it cannot be concluded that blocking of the flat was on account of admission of guilt / wrong on the part of the opposite party. The opposite party has explained that the aforesaid flat was later on allotted to someone else because the complainants failed to pay the consideration amount. Thus, on this count also, we do not find merit in the contention of the complainants. 21. In view of the discussion above, we do not find merit in the contention of the complainants. Complainants, however, failed to prove unfair trade practice or deficiency in service on the part of the opposite parties. Complaint is, therefore, dismissed.