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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
V.K. Jain, Presiding Member
Stuc Awasiya Grahak Kalyaan Association and Ors. —Complainants
versus
Supertech Limited —Opp. Party
Consumer Case No.2335 of 2017
Decided on 16.4.2019
For the Complainants:Mr. Rahul Rathore, Advocate with Mr. Karunesh K. Shukla, Advocate
For the Opp. Party:Mr. Shubham Agarwal and Mr. Gaurav Vij, Advocates with A.R. of OP
IMPORTANT POINT
The complainants cannot be compelled to take possession of the flats after considerable delay of about three years.
Headnote:Consumer Protection Act, 1986 – Section 21(a)(i) – Real Estate – Complaint filed by Voluntary Consumer Association-flats-despite substantial payment, possession was not offered. Hence, refund sought.
Defence-concerned land was acquired, NGT order, delay in payment by one of the allottees, agitation of farmers etc.
Defences not accepted.
Held, In case, there was an order restraining the OP from extracting ground water for construction purposes, it was for the OP to arrange water for construction purposes from alternative sources and the flat buyers cannot be made to suffer on account of such an order, if any. (Para 5)
HC/SC did not restrain the OP for construction. Hence, there is no ground to delay the construction.
Held, the complainants are entitled for refund.
So far as delay in payment by one of the allottees are concerned, it was open for OP to cancel his allotment. For one’s default, others customers should not suffer.
There is no direct evidence of agitation of farmers.
Held, Though, there is no evidence of alternative houses having been acquired by the allottees on whose behalf this complaint is instituted, considering the abnormal delay of more than three years in obtaining the part occupancy certificate, the said allottees, in my view, cannot be compelled to accept possession at this belated stage and are entitled to refund of the amount paid by them to the builder with appropriate compensation. (Para 11)
Refund along with interest @ 10% and cost of Rs. 25,000/- awarded.
Result: Complaint allowed.
V.K. Jain, Presiding Member—This is a complaint instituted by a recognized Consumer Association, under Section 12(1)(b) of the Consumer Protection Act. The complaint was instituted on behalf of the allottees of as many as 14 residential flats in a project namely “Upcountry”, which the opposite party Supertech Limited was to develop on plot TS1 in Sector 17A of Yamuna Expressway Industrial Development Area. One allottee having settled with the opposite party, the complaint survives in respect of 13 allotments. The following are the particulars of the allotments made to the persons on whose behalf this complaint continues:—
S. No.
Name
Unit No.
Date of Booking
Date of allotment letter
Total paid to OP (INR)
Due date as per BBA
1.
Subrata Chatterjee
F-1912
01.4.2013
27.4.2013
28,33,716
April-15
2.
Sandeep Bhatia & Chandni Bhatia
E1-1402
01.11.2012
08.12.2012
40,10,815
April-15
3.
Amrish Manan & Nupur Manan
F1-0511
01.9.2012
12.10.2012
24,52,389
April-15
4.
Mrs. Rajani Bisht
B1-504
13.11.2011
09.12.2011
25,54,475
Feb, 2015
5.
Mavdeep Singh
E1-903
28.8.2012
20.10.2012
40,80,571
April-15
6.
Mayank Jain & Namita Jain
B2-905
28.01.2012
14.02.2012
27,63,382
Feb, 2015
7.
Pankaj Kumar Singla
B2-808
22.01.2012
14.02.2012
27,72,363
Feb, 2015
8.
Nimit Soni
H2-403
25.3.2012
26.4.2012
19,36,303
Aug, 2015
9.
Vivek Chandra
C3-606
24.9.2013
16.10.2013
19,14,954
Dec, 2015
10.
Sunil Bhat & Anita Bhat
C3-402
17.4.2013
8.7.2013
42,45,031
Oct, 2015
11.
Vinod Shah
B1-505
24.1.2012
14.2.2012
22,05,085
Feb, 2015
12.
Manish Bhatla & Kanika Ahuja
B1-1807
13.10.2011
05.3.2013
20,04,955
Feb, 2015
13.
Gagan Banati & Aarti Banati
H-714
22.10.2012
22.11.2012
21,55,845
Aug, 2015
2. It would thus be seen that the possession of the allotted flats was to be delivered to the above referred allottees by different dates, falling in the year 2015. Their grievance is that the possession has not even been offered to them despite they having made more than substantial payments to the opposite party, the payment made to the OP ranging between 81% to 95% except in case of Mr. Vivek Chandra, who has paid only 42% of the agreed sale consideration. The complainant is therefore, before this Commission, seeking refund of the amount paid by the said allottees to the OP, along with compensation etc.
3. The complaint has been resisted by the OP inter-alia on the grounds:—
(i) The land on which the apartments were to be constructed was acquired by Yamuna Expressway Industrial Development Authority (hereinafter referred to as “YEIDA”) and allotted to the OP but the acquisition was challenged by the land owners by way of Writ Petitions filed in Allahabad High Court and the farmers whose land had been acquired did not allow the construction to progress
(ii) National Green Tribunal had prohibited the use of ground water for construction purposes.
(iii) Though the OP had completed the constructions of several towers and had applied for the requisite Occupancy Certificate of the said Towers, the sanctioned plans were cancelled by YEIDA. Later, the Government of Uttar Pradesh invalidated the cancellations of the sanctioned plans.
4. This is also the case of the OP that one of the allottees Mr. Vivek Chandra has defaulted in payment of amount of Rs.14,55,969/- despite email sent to him on 12.7.2017, providing the revised sanction letter etc. to him. It has also been contended by the learned counsel for the OP that in view of the provisions contained in Section 79 of the Real Estate Regulatory Authority Act (RERA), this Commission lacks jurisdiction to entertain this consumer complaint.
5. As far as the prohibit
