For Complainants        :   Mr. Apoorv Kurup, Advocate

                                        Mr. Ritesh Khare, Advocate

                                        Mr. Akhilesh, Advocate

                                        Mr. Mohit, Advocate

                                        Ms. Nikita Anand, Advocate

                                        Ms. Debollina Dutta, Advocate

                                         Mr. Rohit Kaushik, Advocate

                                         Ms. Mantika Haryani, Advocate

                                         Mr. Aftab Singh Khara, Advocate

                                         Mr. Mohit Prasad, Advocate

                                         Ms. Nidhi Mittal, Advocate

                                         Lt.Col. Virendra Singh

For Opposite parties    :   Mr. Anand Shankar Jha, Advocate

                                          Mr. Hare Ram Tiwary, Advocate

1.      Heard Mr. Apoorv Kurup, Advocate, for the complainants and Mr. Anand Shankar Jha, Advocate, for the opposite parties.

2.      IA/2093/2021 filed by Col. Hemant Parmar for deletion of his name from the impleadment application from IA/16123/2019. The application is allowed.  Col. Hemant Parmar is deleted from the application.  

3.      51 buyers of dwelling units have filed above complaint in representative capacity on behalf of numerous buyers for various reliefs. At the time of arguments, relief (j) to award suitable compensation to the flat buyers for inordinate delay in construction/ handing over possession of the flats, for causing mental agony and for burdening with the increased materials costs due to delay, deviation cost charged by HUDA due to lack of proper supervision/planning by AWHO amounting to more than Rs.2/- crores and same be given to all the aggrieved allottees along with interest @15% per annum, has been pressed.

4.      This Commission, vide order dated 19.05.2017, rejected the application for permission to file the complaint in representative capacity under Section 12 (1) (c) of Consumer Protection Act, 1986 and dismissed the complaint as time barred. However, Supreme Court, vide order dated 04.12.2017, set aside the order dated 19.05.2017 in Civil Appeal No.18837 of 2017, and condoned the delay in filing the complaint. Thereafter, IA/1327/2018 was allowed and permission to file complaint in representative capacity was granted on 21.01.2019.

5.      The complainants stated that Army Welfare Housing Organisation (AWHO) (opposite party-1) was a society, registered under Societies Registration Act, 1860 and formed with object to provide dwelling units to the serving and retired Army officers, other Army personnel and their widows, undertaking development and construction of dwelling units by its own. AWHO is managed by Army Personnel and Managing Director is working under Adjutant General of the Integrated Headquarter, MOD (Army), is its Ex-officio Chairman. AWHO launched a project of different types of dwelling units at Sector-27, Panchkula, Haryana and gave advertisements on 01.10.2005, mentioning that probable completion year as 2008 and approximate costs of the units between Rs.35.52 lacs to Rs.12.82 lacs. The complainants applied for and allotted different types of dwelling units, details of which have been given in schedule-A of the complaint. The complainants invested their hard earned money, in the hope that they would get home till end of the year 2008. But till the date of filing of the complaint, certain clearance/no objection for construction were still awaited. The complainants made protest against various deficiencies. Then the opposite parties formed a committee of technically qualified officers, who submitted report dated 10.06.2014, pointing out variations in construction, namely (a) No steel grill door with fly mesh at entrance to each unit, (b) No kitchen door, (c) Change of teak door frames, (d) Change of external grit finish, (e) No 9 X service lifts in luxury, super deluxe and deluxe block, (f) No 50 litres solar water heating system and (g) No fire fighting equipment. AWHO raised demand of increased cost up to extent of 61% of the units. The increase of the cost was alleged due to change of foundation and escalation in cost of construction material and labour due to delay in construction. AWHO has illegally charged for car parking space and sold the open area meant for jogging/walking track. The complainants were aggrieved with delay in giving possession, charging for ‘car parking area’, denial of rebate due to not completing construction in time, increase of cost due to delay and poor workmanship. The complainants filed complaint before Chief Minister, Haryana and after inquiry, an FIR dated 12.04.2015 was registered against the concerned officials. There were various major defects in construction. Under Haryana Apartment Ownership Act, 1983, AWHO is bound to provide common areas and facilities. Haryana Urban Development Authority demanded Rs.185812841/- as enhanced compensation for the land, which was realized from the allottees and as against aforesaid demand Rs.144638314/- was paid by AWHO. On inspection on 03.06.2015, various pending works were noticed. The complaint was filed on 24.01.2017, alleging unfair trade practice.

6.      The opposite parties filed Written Version on 26.04.2017, in which, material facts have not been disputed. It has been stated that all the activities of AWHO are discharged by Project Director. Chief of Army Staff is President of Board of Governors in Ex-officio capacity and Adjutant General is Chairman of Board of Management in Ex-officio capacity. AWHO is a welfare organization and works on “no profit no loss basis”. It charges 3% of total project cost for running establishment. Haryana Urban Development Authority allotted 42492.45 sq. meter land on 10.02.2005 and additional 8136.59 sq. meter land on 24.10.2005 at Sector-27, Panchkula on ‘free-hold basis’  to AWHO and executed an agreement dated 18.07.2006. Then AWHO invited booking application up to 15.11.2006. AWHO through letter dated 18.08.2006, intimated the allottees about the revised cost of the dwelling units. Permission for development of land was granted on 04.04.2007, which was made available to AWHO on 18.07.2007. Environments Clearance was obtained on 25.06.2007. Then layout plan was submitted for approval. After approval of layout plan, AWHO issued technical brochure in October, 2007. According to criteria of eligibility and preference as provided under the Rules, booking letters were issued in December, 2007, in which, probable date of completion of the project was given till the end of year 2010. Indian Institute of Technology, Delhi vetted the project and construction work was started on 22.10.2007. At the time of laying down of foundation, a number of loose boulders were encountered at the site, due to its proximity to river bed of Ghaggar river. In the interest of structural stability of the building, AWHO commissioned fresh soil investigation reports from various experts such as M/s. Ghuman & Gupta Geotech Consultant, M/s. Shegal Jatia & Associates Pvt. Ltd, Dr. Uppals Testing & Analytical Laboratory Private Limited and Indian Institute of Technology, Delhi. These experts submitted their reports in November, 2007 for “raft foundation” instead of “isolated footing foundation”. Then a revised drawing and map was submitted for approval, which was approved in May, 2008. From July, 2008 to September, 2008, there was heavy torrential rain at the site, which stopped construction work. In the light of fresh soil test reports, entire “isolated footing foundations” were changed into “raft foundation”, in which, the project was delayed for 10 months. Punjab and Haryana High Court banned mining operation of sand and stones in district Panchkula on 01.03.2010, in CWP No.20134 of 2004 Vijay Bansal Vs. State of Haryana and CWP No.4758 of 2008, Chandimandir Stone Consumer Company Vs. State of Haryana, which continued till May, 2012. During this period, the construction work was not proceeded due to non-availability of building materials. AWHO applied for electricity connection in December, 2009, which was approved by Haryana Bijli Vitran Nigam, in December, 2011 and electricity connection and supply was given in March, 2012. The contract of construction was given to M/s. SVEC Construction Ltd. The Project Director gave a final notice dated 22.06.2012 to the contractor to complete the construction till November, 2012. After completion of construction, AWHO applied for issuance of “Occupation Certificate” on 29.03.2013, which was issued on 15.10.2013. Thereafter, the allottees were offered possession. After completing the formality of documentations etc., possession were handed over during October, 2013 to November, 2014. Delay in completion of construction occurred for the reasons beyond the control of AWHO. It has been denied that there was 61% escalation in price. Escalation in price was also factored due to (i) society corpus charges, (ii) floor differential charges, (iii) parking charges, (iv) enhanced land compensation, (v) imposition of service tax and labour welfare cess since 2010, (vi) price rise of building materials, (vii) change in norms of Haryana Renewable Energy Development Agency. Wholesale Price Index in base year 2004-05 was 100, August, 2007 was 116 and March, 2013 was 170.1. All the complainants accepted possession of the dwelling units without any objection either for delayed compensation or for price rise, which were duly intimated time to time. Filing of complaint after about 4 years of taking possession without objection is barred on the principle of estoppel.   

7.      The complainants filed Rejoinder Reply on 12.01.2021, in which, the facts stated in the complaint were reiterated. The complainants filed Affidavit of Evidence Major Sandeep Vinayak and Col. (Retd.) Baljeet Singh. The opposite parties filed Affidavit of Evidence of Col. K. Prakash. Both the parties filed their documentary evidence and short synopsis. The complainants, through IA/8712/2016, filed additional documents.

8.     The complainants either in the complaint or in Rejoinder Reply and Affidavit of Evidence have not given the date of booking of the dwelling unit, date of payments and date of delivery of possession. The delay in delivery of possession has to be examined in relation to aforesaid facts. The complainants merely rely upon the judgment of this Commission in Revision Petition No.1982 of 2014, Lt. Col. Ajmer Singh (Retd.) Vs. Adjutant General and others & other connected revisions decided on 16.02.2015. In these cases, this Commission found that booking letter dated 11.08.2006 was issued in favour of the complainants indicating proposed date of completion was three years, subject to acceptance of the tenders as the tender was yet to commence. The possession was given in July 2013 in (paragraph 26).  There is total delay of seven years. Out of these three years, the prescribed period plus two years period of mining ban, were accepted as appropriate period of delay and it was held that there was two years delay, out of which six months period was given as grace period.

9.      I have considered the arguments of the counsel for the parties and examined the record. Supreme Court in Banglore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 711, has held in the matter of civil construction the time is not the essence of contract. In the present case, Clause 10 of booking letter dated 11.08.2006 provides that possession would be given till end of the year 2010. In the written reply, it has been stated that Occupation Certificate was obtained on 13.08.2013. Thereafter possession was started to be given to the complainants from August, 2013 to September, 2014.  So far as delay in construction is concerned, it has been stated that HUDA took 17 months in granting of permission, which was granted on 04.04.2007. Thereafter layout plan was sanctioned and construction was started on 22.10.2007 on the spot. Athough the project was vetted by Indian Institute Technology Delhi, but upon the commencing of the work of laying down foundation number of loose boulders were encountered at the site, due to its proximity with river bed of river Ghaggar. Then in the interest of structural stability, AWHO Commissioned fresh soil investigation reports from various experts such as M/s. Ghuman and Gupta Geotec. Consultant. All the experts in their opinion had advised for raft foundation instead of ‘isolated footing foundation’ then the design and drawing got changed and fresh approval was obtained from the concerned authorities. Thereafter, the construction was stopped due to heavy rain in June 2008 to August 2008. Due to these reasons, the construction was delayed for ten months. There was mining ban imposed by High Court of Panjab and Haryana from 01.03.2010 till May, 2012.  Thus, two years two months construction was affected due to shortage of sand, stones and grids etc. Due date of possession, in the present cases where December, 2010 while possession were given since August 2013. Delay was about two years seven months, which has been fully explained above. This Commission in Revision Petition No.1982 of 2014, Lt. Col. Ajmer Singh (Retd.) Vs. Adjutant General and other connected revisions decided on 16.02.2015 accepted explanation for delay of two years six months.

10.    None of the complainants have raised any objection relating to delayed compensation at the time of taking possession, therefore, they cannot be allowed to raise objection in this respect after such a long time. In such circumstances, I do not find that the complainants are entitled for delayed compensation. AWHO is working on ‘no profit no loss’ basis and is not a profit making organization. It has realized the amount of increased costs from the complainants time to time, which were factored due to (i) society corpus charges, (ii) floor differential charges, (iii) parking charges, (iv) enhanced land compensation, (v) imposition of service tax and labour welfare cess since 2010, (vi) price rise of building materials, (vii) change in norms of Haryana Renewable Energy Development Agency. 

ORDER

In view of the aforesaid discussions, the complaint is dismissed.