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Satish Kumar Talwar v/s M/s. Laureate Buildwell Pvt. Ltd. & Others

    Consumer Case No. 1137 of 2017

    Decided On, 11 July 2018

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE V.K. JAIN
    By, PRESIDING MEMBER

    For the Complainant: Paritosh, Manav Bhargava, Sourav Sharma, Advocates. For the Opp.Parties: Ashok Mahipal, Advocate.



Judgment Text

Oral

IA/12490/2018, IA/12491/2018 & IA/12489/2018 (For additional documents)

1. These applications have been filed by the OPs for permission to file additional documents. I have perused the documents annexed to the applications. None of the applications except the letter of New Okhla Industrial Development Authority dated 06.03.2018 and the reply of the OPs dated 16.04.2018 to the aforesaid letter appear to be relevant to decide the issue involved in these complaints. The OPs are therefore, permitted to place on record the aforesaid two documents. The applications stand disposed of.

CC/572/2017, CC/1137/2017 & CC/1274/2017

The complainants in CC No.572 of 2017 booked a residential apartment with the OP Laureate Buildwell Pvt. Ltd. in a project namely 'Parx Laureate' which the aforesaid OP was to develop in Noida. The sale consideration for the aforesaid flat was agreed at Rs.1,37,98,545/-. As per clause 5 of the terms and conditions of the allotment letter, the possession was to be delivered within a period of 36 months from the date of the said allotment letter which came to be issued on 01.03.2012. The possession therefore, ought to have been delivered by 01.03.2015. The grievance of the complainants is that the possession of the flat has not been offered and even the construction is not complete in all respects even till today. The complainants have already paid a sum of Rs.99,50,445/- to the OP. The complainants are therefore, before this Commission seeking possession of the allotted flat alongwith compensation etc.

2. The complainant in CC No.1137 of 2017, also booked a residential flat with the OP in the aforesaid project for a consideration of Rs.1,23,00,090/- and allotment letter was issued to him on 10.06.2012. In his case also, the possession was to be de

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livered within 36 months of the allotment and therefore, ought to have been delivered by 10.06.2015. His grievance is that the possession has not been offered to him and even the construction is not complete in all respects despite he having already paid Rs.1,07,74,382/- to the OP. He is also before this Commission seeking possession of the allotted flat alongwith compensation etc.

3. The complainant in CC No.1274 of 2017 also booked a residential flat in the aforesaid project and flat no. 4081 in Tower Delonix was allotted to him for a consideration of Rs.1,97,75,355/-. In his case, the allotment letter was issued to him on 01.03.2012 and therefore, in terms of the terms and conditions of the allotment, the possession ought to have been delivered to him by 01.03.2015. His grievance is that the possession has not been offered to him and even the construction is not complete in all respects despite he having already paid Rs.1,76,16,585/- to the OP. He is also before this Commission seeking possession of the allotted flat alongwith compensation etc.

4. All the three complaints have been resisted by the OP on identical grounds. The allotment made to the complainants as well as the payment received from them has not been disputed. It has however been alleged that there was delay on the part of the complainants in making payment of several construction linked installments. It is however, evident from the statement of account filed by the OP alongwith its written version that penal interest for the period the installments were delayed, was charged from the complainants. The penal interest charged in CC No.1274 of 2017 was Rs.11,279/-, the penal interest charged in CC No.572 of 2017 was Rs.38,941/- whereas the penal interest charged in CC No.1137 of 2017 was Rs.1,81,150/-. However, out of the aforesaid amount, the OP later on waived a sum of Rs.1,60,924/-. The delay in completion of the construction is sought to be justified by the OP primarily on the ground that on 28.10.2013, National Green Tribunal had imposed restrictions on construction within 10 Kms radius of Okhla Bird Sanctuary and later, a notification dated 19.08.2015 issued by the Ministry of Environment & Forests was challenged by several persons, as a result of which, there was a slow down for about 26 months. This is also alleged that on several occasions, steel/cement or other building material or water supply or electric power was not available.

5. I have heard the learned counsel for the parties and have considered the material on record.

6. The first question which primarily arises for consideration in this complaint is as to whether the delay in completion of the construction in all respects was on account of reasons beyond the control of the OP. As far as the order passed by the National Green Tribunal staying construction activities within a radius of 10 Kms from Okhla Bird Sanctuary is concerned, the issue was considered by this Commission at detail in CC No.437 of 2017 Jagdish Chand Rana & Anr. Vs. M/s Granite Gate Properties Private Limited & Anr., decided on 16.05.18 and the following view was taken:

'7. Vide interim order dated 11.01.2013, the National Green Tribunal restrained all the builders of Noida and Greater Noida from extracting any quantity of ground water for the purpose of construction, till the next date of hearing before it. The next date of hearing before the National Green Tribunal fixed was 24.01.2013. The aforesaid order shows that the builders raising construction of 20,000 sq. mtrs. and above were required to take environmental clearance under the relevant rules by the competent authority in the State Government but said permission had not been taken. If the requisite EC was taken by the opposite party, the order passed by the National Green Tribunal did not apply to it. If the opposite party was required to take permission from the competent authority in the State Government but had not taken such a permission before selling flats in the aforesaid project, it is only itself to blame for creating a situation in which the order passed by the National Green Tribunal on 11.01.2013 came to be applied to this project. Moreover, there is no evidence of the opposite party having tried to obtain water for construction purpose from alternative source. If the National Green Tribunal had restrained the builders from extracting the underground water in Noida/Greater Noida, they were expected to arrange water from the alternative source so as to fulfill their contractual obligation to the flat buyers. It is not as if no construction took place in Noida and Greater Noida during the period the interim order passed by the National Green Tribunal remained in force. Therefore, if the opposite party so wanted, it could have arranged water for construction purpose from the alternative source. There is no evidence of the aforesaid interim order dated 11.01.2013 having been continued by the National Green Tribunal after 24.01.2013 which was the next date of hearing in the aforesaid matter. In any case, it cannot be said that the delay in completion of the project was justified on account of the above referred interim order of the National Green Tribunal.

8. The opposite party has filed, alongwith its affidavit by way of evidence, a copy of an order dated 28.10.2013 passed by the National Green Tribunal in M.A. No. 890 of 2013 and connected matters. The said order contains reference to an earlier order dated 14.08.2013, whereby NOIDA was directed to stop the construction work going on within a radius of 10 kms from Okhla Bird Sanctuary, without prior environmental clearance or in contravention of the same. The order dated 28.10.2013 shows that the aforesaid order applied to 49 projects out of which, 15 had already been completed and 7 had not begun. The Tribunal made it clear that its intention on 17.09.2013 was to extend the interim order dated 14.09.2013 to the persons or builders carrying on construction activity without environmental clearance or against the provisions of the environmental clearance. This is not the case of the opposite party that no environmental clearance was required or that it had not obtained such a clearance before it started the construction in this project. In such a case, the order passed by the National Green Tribunal would not apply to this project since the scope of the said order was limited to the construction activity being carried out without requisite environmental clearance or in contravention of the environmental clearance. If the opposite party had commenced construction of the project in question without obtaining the requisite environmental clearance or the said construction was in contravention of the environmental clearance, it has only itself to blame for the said construction being stopped by the National Green Tribunal.

9. Vide above referred order dated 28.10.2013, National Green Tribunal directed that all the projects within an area of 10 kms radius of the Okhla Bird Sanctuary be examined by National Board for Wild Life. The Ministry of Environment & Forests was directed to refer all the aforesaid projects to National Board for Wild Life, within four weeks. The Government of U.P. was directed to send the particulars relating to the environmental clearance given to the aforesaid projects to the Ministry of Environment & Forests within four weeks from the order. Within four weeks thereafter, Ministry of Environment & Forests was to refer the same to the standing Committee of National Board for Wild Life, which was to verify the correctness of the statement made by the project proponent. The order passed by the aforesaid Board was to indicate whether the project should be permitted or not. It was made clear that the building construction within 10 kms radius of Okhla Bird Sanctuary or within distance of Eco-Sensitive Zone to be prescribed by Ministry of Environment & Forests shall be subject to decision of National Board for Wild Life and till clearance from the said Board, the Authority shall not issue completion certificate to the project. Thus, in the aforesaid order dated 28.10.2013, the National Green Tribunal did not stay further construction of the projects where requisite environmental clearance had been obtained, and only completion certificate was withheld till clearance from the National Board for Wild Life.

The order of the Tribunal to the extent the issue of completion certificate was withheld till the clearance from NBWL could not have contributed to the delay in offering possession to the complainants since the construction not being complete, the stage to obtain the requisite completion certificate had not reached, by the time the aforesaid order dated 28.10.2013 came to be passed by the National Green Tribunal. In fact, even in the cases where the construction was complete and the completion certificate had been applied, the builder could obtain the completion certificate on the project being cleared by NBWL. If there was a delay on the part of the Government of U.P. in sending the particulars relating to the environmental clearance given to the project, to the Ministry of Environment & Forests, there was delay on the part of Ministry of Environment & Forests in forwarding the matter to National Board for Wild Life or there was delay on the part of the National Board for Wild Life in completing its enquiry in terms of the order of the National Green Tribunal, the builder could always approach the said Tribunal for giving appropriate directions to the Government of U.P. or Ministry of Environment & Forests or National Board for Wild Life as the case might be.

In its affidavit dated 20.07.2016, the opposite party has inter-alia stated that they had applied for completion certificate in respect of Tower-29 on 09.12.2014. However, there is no material or even an allegation that the completion certificate applied by the opposite party was delayed or withheld on account of the order of the National Green Tribunal dated 28.10.2013 or 03.04.2014. Therefore, the orders passed by the National Green Tribunal from time to time do not justify the delay in handing over possession to the complainants.'

7. The learned counsel for the OP has drawn my attention to the letter dated 06.03.2018 sent by New Okhla Industrial Development Authority to the OP, responding to the OP’s letter dated 16.08.2017. The New Okhla Industrial Development Authority, vide aforesaid letter dated 06.03.2018, treated the period from 14.08.2013 to 28.10.2013 as zero period, meaning thereby that no interest from the OP was charged by New Okhla Industrial Development Authority for the aforesaid period. For the period from 29.10.2013 to 19.08.2015, New Okhla Industrial Development Authority decided not to charge penal interest subject to the condition that the benefit of the same would have to be passed on to the flat buyers and if any interest/penal interest has been recovered from the flat buyers, the same would be refunded to them or would be adjusted. It is therefore, evident that the OP was not exempted from payment of whole of the interest for the period from 29.10.2013 to 19.08.2015. Only penal interest was waived, meaning thereby that the normal interest was still payable for the aforesaid period. Therefore, it is evident that even New Okhla Industrial Development Authority treated the period from 14.08.2013 to 28.10.2013 as the period during which the construction could not have been raised within a radius of 10 Kms from Okhla Bird Sanctuary. In my opinion, the OP is entitled only to the exclusion to the period from 14.08.2013 to 28.10.2013 which comes to about 2 months and 15 days, from payment of compensation on account of delay in completion of construction and delivery of possession to the flat buyers. As far as the alleged non-availability of building material, water, power is concerned, there is no evidence produced by the OP to prove that the building material was not available anywhere in the country or even in Noida during the period the construction was to be carried out. No evidence has been produced to prove that water or electricity was not at all available during the aforesaid period for carrying out construction of the flats allotted to the complainants. Therefore, except for the period from 14.08.2013 to 28.10.2013, the OP, in my view, was not prevented by reasons beyond its control from carrying out construction of the flats allotted to the complainants.

8. The OP has failed to show how the challenge to the later notification dated 19.08.2015 issued by the Ministry of Environment & Forests had resulted in slow down for about 26 months. This is not the case of the OP that there was a further stay of construction after the notification dated 19.08.2015 had been issued. Therefore, the alleged challenge to the notification dated 19.08.2015 did not justify the delay in completion of the construction.

9. It is not in dispute that till date, the construction is not complete in all respects and the Occupation Certificate has not been obtained by the OP. Therefore, even today, the OP is not in a position to offer possession of the flats allotted to the complainants. The possession can be offered only after construction is complete in all respects and the requisite Occupation Certificate has been obtained.

10. The learned counsel for the OP submits that they had raised demand of construction linked installments in terms of the schedule of payment agreed between the parties only when the construction had reached the stipulated level. He further states that in view of clause 13(7) of the terms and conditions of the allotment, the complainants have forfeited their right to timely possession on account of they having delayed the payment of one or more installments. In my view, the aforesaid term is wholly unfair, unilateral and one sided. The OP having charged interest for the delayed payment of installments and having not exercised the option of cancellation of the allotments, cannot deny compensation for the period the possession has been delayed on account of reasons which were not beyond its control. Having already made advance payment to the builder, the flat buyer has no option but to accept the allotment on the terms and conditions unilaterally imposed upon them.

11. Vide letter dated 24.09.2017, the OP informed the complainants that the construction of the project was expected by 31.05.2019 and in case there is a delay on their part in handing over possession, they shall pay interest @ 12% per annum or as per the rate prescribed in the Act and rules as applicable to the State of Uttar Pradesh. It is therefore, evident that the OP wants time till 31.05.2019 to complete the construction in all respects and offer possession of the flats to the complainants.

12. The complaints are therefore, disposed of with the following directions:

1) The OP namely M/s Laureate Buildwell Pvt. Ltd. shall complete the construction of the flats allotted to the complainants in all respects, obtain the requisite Occupancy Certificate at its own responsibility and offer possession of the said flats to the complainants on or before 31.05.2019.

2) The OP namely M/s Laureate Buildwell Pvt. Ltd. shall pay compensation in the form of simple interest @ 8% per annum for the period from 01.03.2015 in CC No.572 of 2017, for the period from 10.06.2015 in CC No.1137 of 2017 and for the period from 01.03.2015 in CC No.1274 of 2017 till the date on which the possession in terms of this order is offered, after excluding the period of 2 months for which the construction was stayed by the National Green Tribunal.

3) The compensation payable to the complainants in terms of this order shall be adjusted out of the balance amount if any, payable by the complainants to the OP. The balance compensation if any, shall be paid to them at the time the possession of the flats in terms of this order is made.

4) The complainants shall pay the balance amount if any, payable by them after adjustment of compensation in terms of this order, within four weeks of receiving the offer of possession from the OP.

5) In CC No. 572 of 2017, two instalments were not paid by the complainants. Those instalments shall be paid to the OP within 15 days from today alongwith interest @ 8% per annum.

6) The OP namely M/s Laureate Buildwell Pvt. Ltd. shall pay a sum of Rs.25,000/- as the cost of litigation in each complaint.
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