Chandigarh

StateCommission

CC/98/2014

Udham lal Singla & anr. - Complainant(s)

Versus

The Emaar MGF Land Limited - Opp.Party(s)

Sh. Deepak Aggarwal Adv.

26 Jun 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Consumer Complaint	:	98 of 2014
Date of Institution	:	21.08.2014
Date of Decision	:	26.06.2018.

 

1.  Udam Lal Singla son of Sh. Hari Chand Singla, resident of House No. 2103, 2nd Floor, Sector 71, District SAS Nagar (Mohali) (Punjab).

2.  Mrs. Ritu Gupta wife of Udam Lal Singla, resident of House No. 2103, 2nd Floor, Sector 71, District SAS Nagar (Mohali) (Punjab).

       ……Complainants

 

Vs.

 

1. The Emaar MGF Land Limited, SCO 120-122, 1st Floor, Sector 17-C, Chandigarh 160017 Through its Branch Head.
2. Emaar MGF Land Limited, ECE House, 28 Kasturba Gandhi Marg, New Delhi -110001 through its Director.
3. Greater Mohali Area Development Authority (GMADA), PUDA Bhawan, Sector 62, District SAS Nagar (Mohali), State, Punjab through its Estate Officer.

….. Opposite Parties

 

BEFORE:           JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

                  

 

Argued by:    

Sh.  Deepak  Aggarwal, Advocate for the        complainants.

Sh. Ashim Aggarwal, Advocate for Opposite Parties No.1 and 2.

Sh. Balwinder Singh, Advocate for Opposite Party No.3.

 

PER PADMA PANDEY, MEMBER

 

              Earlier this Commission dismissed this complaint being barred by time vide order dated 23.12.2014.

2.           Aggrieved against the said order, the complainants filed First Appeal No.113 of 2015 before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, in which, vide order dated 20.11.2017, the said appeal was allowed and set aside the order by this Commission and remanded back the case to this Commission to decide it on merits after giving opportunity to both the parties of being heard. The relevant portion of the aforesaid order passed by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi reads thus :-

“17.    Based on the above discussion, the First Appeal No.113/2016 is allowed and the order dated 23.12.2014 passed by the State Commission in CC No.98 of 2014 is set aside.  The matter is remanded back to the State Commission with the direction that complaint  case may be restored to its original number and the same be decided on merits after giving opportunity to both the parties of being heard.”

 

3.           When the complaint was filed, the following facts were noted by this Commission :-

“The facts, in brief, are that Complainant No.1 is a Mechanical   Engineer  by   profession  working   with    Swaraj Tractors Limited Mohali, Distt. SAS Nagar, Punjab and also belongs to Punjab. It was stated that complainant No.2 is the wife of complainant No.1 and is a Lecturer by profession. It was further stated that in the year 2010, complainant No.1 got an opportunity with Swaraj Tractors Limited situated in Mohali and with a hope to have their own house in Mohali, came in contact with Opposite Party No.1 at Chandigarh. The complainants were impressed by the claims/projections made by Opposite Parties No.1 and 2 vide their repeated advertisements in the leading newspapers/brochures (Annexure C-1) for the sale of plots, which presented a very rosy picture of the plots/project to be sold and also of the complex etc. It was further stated that as per the data presented to the Ministry of Environment and Forest, Opposite Parties No.1 and 2, acquired and purchased land in Sectors 98, 105, 108 and 109, SAS Nagar, Punjab to set up and develop an integrated township named as ‘Mohali Hills’, which involved the development of four residential sectors as part of an integrated Township on a total plot area of 359.56 Hectares, out of which, area under plotted development is 102.09. It was further stated that the total built up area proposed under group housing is 2,97,000 sq. meters, and under institutional use is 1,81,619 sq. meters. It was further stated that the plotted development in the complex was to have 3,425 plots of various sizes. It was further stated that the total cost of the project was Rs.5,000.00 crores.

2.             It was further stated that the project work started in June 2008 and Opposite Parties No.1 and 2 had spent only Rs.250 crores in 4 years till March 2012 out of Rs.5,000 crores earmarked for the project. It was further stated that according to Opposite Parties No.1 and 2, change of land use from agricultural to residential/group housing was also granted by Department of Housing & Urban Development, Punjab. It was further stated that it was one of the conditions of Plot Buyer’s Agreement as shown to the complainants that Opposite Parties No.1 and 2 were accorded approval and exemptions to develop and promote residential plots and make allotment of plots to intending purchasers in residential colony which was more particularly known as “Mohali Hills”.

3.             It was further stated that acting on the assurances given by Opposite Parties No.1 and 2, the complainants booked the plot through them, who arranged the same in re-sale from one Mr. Kapil Dev Khullar and Ms. Sanju Khullar, both residents of T-28/13, DLF, Qutab Enclave Phase-III, Gurgaon(Haryana). It was further stated that the above mentioned plot admeasuring 300 sq. yards in Augusta Greens (location is Sector 109 “plot no 178”), was purchased by the complainants for a total sum of Rs.42,28,438/-, which included transfer charges of Rs.1,50,000/- made to Opposite Parties No.1 and 2 on 13.09.2006 and 04.04.2011 by the original allottees, basic sale price (BSP), Preferential Location Charges (PLC), External Development charges (EDC), and interest on the delayed payment (DPC). It was further stated that Opposite Parties No.1 and 2 confirmed having received the above payments vide receipts (Annexure C-2 Colly.). It was further stated that, thereafter, endorsement was made by Opposite Parties No.1 and 2 on 04.04.2011, in favour of the complainants on the original agreement dated 04.07.2007 (Annexure C-3). It was further stated that, thus, the complainants on 04.04.2011 stepped into the shoes of the original allottees and whatever rights and interests, in the plot, the original allottees,  had as per the terms and conditions of the Plot Buyer’s agreement dated 04.07.2007, the same stood conferred upon the complainants. It was further stated that letters issued by Opposite Parties No.1 and 2, to the original allottees including provisional allotment letter dated 05.05.2007, letter dated 28.12.2009 vide which they (Opposite Parties) claimed to have offered possession and nomination letter dated 03.05.2011 in favour of the complainants have been annexed as Annexures C-5 and C-6 respectively.

4.             It was further stated that thereafter the complainants made request to Opposite Parties No.1 and 2, to handover physical vacant possession of the plot after properly demarcating the same and completion of development works. It was further stated that Opposite Parties No.1 and 2, lingered on the matter on one pretext or the other and told the complainants that as soon as they got the completion certificate for internal as well as external development works from the Competent Authority/Government of Punjab, they would start the process of possession and execution  of the registered sale deeds. It was further stated that Opposite Parties No.1 and 2, told that the complainants need not worry as they would be fully compensated under penalty clause of the Agreement dated 04.07.2007. It was further stated that as per Clause 8 of the said Agreement, Opposite Parties No.1 and 2, were required to deliver possession of the plot within a period of 2 years from the date of execution of the same, but not later than 3 years and that, in the event of failure to do so, they (Opposite Parties No.1 and 2) were liable to pay to the complainants penalty of Rs.50/- per sq. yds. per month for such period of delay beyond 3 years from the date of execution of the said Agreement.

5.             It was further stated that the complainants were allotted plot No.178 which was facing sector dividing road, in Sector 109 and there was no road available to reach the said plot till date. It was further stated that there was around 1000 sq. feet plot lying vacant/open which was barricaded and having barbed wire which was restricting the access to service lane which was in front of the plot of complainants. It was further stated that  Opposite Parties No.1 and 2 charged a total sum of Rs.4,31,250/- towards PLC, whereas the plot, in question, was such which was not even having the access road. It was further stated that Opposite Parties No.1 and 2 took PLC charges at higher rate on account of the plot, in question,  facing road which was 200 ft. wide i.e. sector dividing road duly having 35 ft. service lane. It was further stated that the layout plan which was supplied by Opposite Parties No.1 and 2 at this stage was different from what was advertised/projected by them at their different locations/such as at their office, website and projected through their marketing people. It was further stated that the complainants downloaded layout plans/maps from the website of Opposite Parties No.1 and 2, clicked the photographs of the maps shown on illuminated billboards of size more than 6’x6’ in their office. It was further stated that layout plans did not tally with the one obtained by the complainants from the Competent Authority’s website etc. and the entire land was in their possession as a part of project, whereas the layout plan/map supplied by the Competent Authority reflected that some part of land which was barricaded was not part of the project in Sector 109. It was further stated that the plot of the complainants in all the above-said annexures was highlighted in Blue Colour and some part of land which was barricaded and was not a part of the project in Sector 109 was highlighted in Yellow colour.

6.             It was further stated that it came to the notice of the complainants, after perusing information obtained under the Right to Information Act, 2005, from Opposite Party No.3, that at the time of provisional allotment, there was no approved layout plan and the first approval for layout was only granted on  29.02.2008 (Annexure C-11). It was further stated that Opposite Parties No.1 and 2 illegally advertised and sold the plots in the year 2006,  when  they were not having approved layout plan. It was further stated that Opposite Parties No.1 and 2 took 30% of the amounts payable, from the original allottees before signing of the Plot Buyer’s Agreement dated 04.07.2007, which was also illegal. It was further stated that the complainants received letter dated 12.05.2014 (Annexure C-13) from Opposite Parties No.1 and 2, whereby they claimed to start the process of execution and registration of conveyance deed in favour of complainants shortly. It was further stated that the complainants were further told to make payment of various amounts before 12.06.2014, later on extended to 30.07.2014, vide email dated 16.06.2014 (Annexure C-14), in order to enable Opposite Parties No.1 and 2 to handover the possession of the plot. It was further stated that letter dated 28.12.2009 offering possession was only an eyewash/paper possession, to avoid penalty as per Clause 8 of the Plot Buyer’s Agreement dated 04.07.2007 and possession without possibility of conveyance deed. It was further stated that in possession letter dated 12.05.2014, Opposite Parties No.1 and 2, stated that in order to enable to handover the possession of the plot, some formalities were to be done whereas it did not mention about completion certificate/status of work as mentioned in the letters earlier issued by Opposite Parties No.1 and 2.

7.             It was further stated that Opposite Parties No.1 and 2 were claiming Rs.7,54,885.33 from the complainants vide letter dated 12.05.2014 for various purposes including execution and registration of conveyance deed. It was further stated that Opposite Parties No.1 and 2, referred to letter dated 28.12.2009 vide which they claimed to have offered possession, whereas, in letter dated 12.05.2014 itself, Opposite Parties No.1 and 2 stated that complainants were requested to make payments by 12.06.2014 to enable them to handover the possession of the plot and hence the stand of Opposite Parties No.1 and 2 was self-contradictory. It was further stated that lot of emails correspondence  (Annexure C-16 Colly.) took place between the complainants and Opposite Parties No.1 and 2 but they totally kept mum on the above issues, raised by the complainants. It was further stated that the complainants, in order to ascertain the truth, sought various information from Competent Authorities under the Right to Information Act, 2005 and replies to some of them were received. It was further stated that the information supplied by the Competent Authorities including Opposite Party No.3 was not complete. It was further stated that according to above RTI replies, Opposite Parties No.1 and 2 were not in position even to complete their project in the near future. It was further stated that the RTI replies totally falsified the claim of Opposite Parties No.1 and 2 that they had already offered possession to the complainants vide their letter dated 28.12.2009. It was further stated that as per information recorded in Environmental report DATA sheet of Ministry of Environment and Forests Northern Regional Office at Chandigarh, in 2012, proposed investment for the project of Opposite Parties No.1 and 2 was Rs.5,000 crores  and project was to be implemented till March, 2016 but only Rs.250 crores were spent by Opposite Parties No.1 and 2 in 4 years till 2012 since 2008, the date when project was started. It was further stated that, in this report, the date of commencement of project stated was June, 2008 and date of completion of the project was March, 2016 (tentative). It was further stated that Opposite Parties No.1 and 2, were guilty of misrepresentation to the complainants and other Competent Authorities, time and again. It was further stated that various information sought under the Right to Information Act, 2005 from the Competent Authorities, by the complainants, their replies supplied and other information procured by them (complainants) through internet/other sources were annexed as Annexure C-17 (Colly). It was further stated that it was established from the information, aforesaid, that the Punjab State Power Corporation Limited (for short hereinafter to be referred as PSPCL) had claimed that not a single domestic electricity connection was released to Opposite Parties No.1 and 2, in Sector 109, under the category of permanent domestic connection up-till 30.06.2014. It was further stated that PSPCL had claimed that total of 21023 KW load was sanctioned to Sector 105, 108 and 109 as per the scheme approved by them but Opposite Parties No.1 and 2 did not deposit bank guarantee amount and, hence, no load was released in Sector 109, Mohali. It was further stated that Opposite Parties No.1 and 2 gave an estimated time period of 3 years for the completion of development of LD system in the colony on 25.03.2011 while getting No Objection Certificate and PSPCL had made it clear that in case LD system was not provided, it would not be able to release any domestic electric connection to prospective consumers (owners or resident of Plots). It was further stated that the complainants sought some information regarding the project from Opposite Party No.3 on 30.05.2014, which gave evasive reply on 12.06.2014. It was further stated that although complainants were left in lurch but at the same time, some vital information was passed by Opposite Party No.3, which stated that completion certificate of the township of Opposite Parties No.1 and 2 had yet not been issued. It was further stated that on 12.06.2014, Opposite Party No.3 also intimated that no certificates of the township viz. Electric grid station commissioning certificate, Electric supply commissioning certificate, Water supply commissioning certificate, Sewerage treatment plant commissioning certificate and Horticulture and landscaping completion certificate were issued.

8.             It was further stated that Opposite Parties No.1 and 2 had written a letter dated 12.10.2009 to Opposite Party No.3 vide which, they submitted drawings of services and their engineering designs of their project in Sector 105,108,109, Mohali for approval. It was further stated that the said request letter for approval of services and engineering designs was replied by Opposite Party No.3 on 09.02.2010 for approving the engineering scheme (services) and, hence, the question of offering possession by Opposite Parties No.1 and 2 to the complainants on 28.12.2009 did not at all arise. It was further stated that Opposite Party No.3 vide its reply dated 29.04.2014, had supplied information under the Right to information Act, 2005 to one Sh. Kabir Khanna stating therein that what to talk of issuing of certificates, the same were not even applied by Opposite Parties No.1 and 2 to the Competent Authority. It was further stated that the complainants were informed vide letter dated 16.06.2014 written by Superintendent-cum-APIO O/o Land Acquisition Collector to the extent that “acquisition process of land in Sector 109  is stopped due to the court case (CWP No. 25843 of 2013) Hargobind I and others Vs. State of Punjab in Hon`ble Punjab and Haryana High Court. So for information relating to Sr. No.6 the layout plan is given by DTP Office.” It was further stated that in the circumstances, how could Opposite Parties No.1 and 2 offer possession of plot on 28.12.2009 without acquisition of entire project land and hence, they totally indulged into unfair trade practices and misled and misrepresented the complainants at every step. It was further stated that even the Notification by Govt. of Punjab that land of critical gaps was required to be taken by State government for compact development of Mega Township Project was issued on 09.09.2013. It was further stated that the said declaration was made under the provisions of Sections 6 and 7 of the Land Acquisition Act, 1894 and Land Acquisition Collector was directed to take order for acquisition of the said land in question and hence, again Opposite Parties No.1 and 2 were wanting on this count also.

9.             It was further stated that a statement was made by Opposite Parties No.1 and 2 through their Counsel on 10.01.2014 (in I.A. No.4442 of 2013 in FA No.212 of 2012 before the National Commission to the extent that project Augusta Greens Sector 109, Mohali Hills in which the plot was allotted, was to be completed by the year 2009 but it was still not fully developed. It was further stated that the possession of fully developed plot with committed amenities was nowhere in the sight and all the dreams of the complainants were shattered to ground. It was further stated that the complainants had already approached Opposite Parties No.1 and 2 several times for the delivery of physical possession of fully developed plot, which inter-alia meant execution of the conveyance deed, submission of the building plans and commencement of construction and on the failure to do so, the provisions of Clause 8 of the Agreement were to be invoked and the necessary damages were to be paid to them alongwith arrears from the date of completion of 3 years from date of execution of the Plot Buyer Agreement i.e. 04.07.2007. It was further stated that the complainants were living in the rented accommodation and they had to pay huge rent and at the same time took huge loan of Rs.30 lacs from the Housing Development Finance Corporation Limited for which high rate of interest was being charged by above said Financial Corporation.

10.           It was further stated that it came to the knowledge of complainants that Opposite Parties No.1 and 2 were trying        to  take  benefit  of   exemptions  granted  to  them  by  the Government of Punjab from the provisions of the Punjab Apartment & Property Regulations Act, 1995 (for short hereinafter to be referred as PAPRA 1995) w.e.f. 22.12.2006 by stating that they were not responsible to obtain the same under the abovesaid Act. It was further stated that although in some other cases decided by the Chandigarh Consumer Forums, these Opposite Parties took the stand that PAPRA 1995 was applicable but still if the same was found to be not applicable to them, even then they were to abide by the terms and conditions of the said Act viz. (i) The development works were to be carried out in accordance with the lay-out plan sanctioned by the Chief Town Planner, Punjab in keeping with such general guidelines; (ii) to pay EDC, CLU and Licence Fee as per undertaking with regard to land use falling under HT Lines if permitted to re-route as per prescribed rates at that time; (iii) to strictly abide by the aforesaid legal agreement dated 16^th November, 2006 signed by them as well as various Notifications issued by the Department of Housing and Urban Development enunciating and enumerating the policy parameters governing such Housing Projects; (iv) to deposit the entire amount in respect of the contribution to the Punjab Urban Development Fund, created under Section 32 of PAPRA 1995; (v) to acquire the entire project land, in its name, including land under the Agreement to develop and requested to be acquired by Government; (vi) to obtain the Final NOC from Punjab Pollution Control Board as stated in their provisional NOC issued vide their letter number 7781, dated 11.09.06; (vii) before starting the development of the proposed project, promoter was required to obtain environmental clearance from the Ministry of Environmental & Forest Government of India as required under EIA Notification dated 14.9.06 as well as consent to establish (NOC) from the Punjab Pollution Control Board and (viii) promoter would not carry out any works on the site till above conditions were fulfilled. It was further stated that Opposite Parties No.1 and 2 failed to comply with the aforesaid conditions and, thus, could not carry out any works on the site till the above conditions were fulfilled.

11.           It was further stated that the aforesaid acts of the Opposite Parties, amounted to not only deficiency, in rendering service, but also indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing Opposite Parties No.1 and 2 to refund Rs.42,28,438/- (which included transfer charges Rs.1,50,000/-, BSP, PLC, EDC and interest on delayed payment) alongwith interest @18% per annum from the respective due dates of deposit till realization; pay penalty @Rs.50/- per sq. yds. per month for such period of delay beyond 3 years (starting from 04.07.2010); Rs.10 Lacs as compensation for mental agony, harassment and punitive damages; Rs.4 Lacs on account of rent and Rs.1.5 Lacs as cost of litigation.”

4.           The following facts were relied qua written statement filed by Opposite Parties No.1 and 2 :-

“12.          Opposite Parties No.1 and 2 filed their written statement on 31.10.2014. In their reply, they took up the following preliminary objections:-

(i)     The complaint was time barred as the same was filed more than 2 years after accrual of cause of action on 28.12.2009, when possession was offered to the complainants. The grievance of the complainants was that no development was there at site when possession was offered in 2009. No further notice or document could extend the period of limitation beyond 28.12.2011.

(ii)    The complainants were not the consumers as they were re-allottees and neither any amount was paid by them to the Opposite Parties nor any service was to be provided to them. The Opposite Parties completed the development work envisaged under Clause 23 of the Agreement in 2009 and offered possession to the original allottees on 28.12.2009 i.e. much before the Agreement was endorsed in favour of the complainants on 4.4.2011/3.5.2011. Thus, since no consideration was received from the complainants, they could not be considered to be consumers as defined under the Act.

(iii)   The Commission does not have the jurisdiction to entertain the complaint due to existence of Arbitration Clause 42 in the agreement, according to which, all the disputes were to be referred to an Arbitrator to be appointed as per provisions of Arbitration and Conciliation Act, 1996.

13.            On merits, it was denied that Opposite Parties No.1 and 2 created any rosy picture of the project etc. or that the complainants were influenced by any such advertisement. It was also denied that Opposite Parties No.1 and 2 arranged for the re-sale of the unit from the original allottees. It was stated that Opposite Parties No.1 and 2 facilitated transfer of unit in the records of the Company from the original allottees to the complainants on completion of relevant documentation. It was further stated that the complainants, on their own, purchased the unit from the secondary market. It was further stated that on completion of relevant documentation, the confirmation letter, recording the transfer of unit in the records of Opposite Parties No.1 and 2 was sent to the complainants on 3.5.2011. It was further stated that the complainants did not place, on record, any documents in support of the reference made to the data submitted to the Ministry of Environment and Forest. It was further stated that the earlier allottees paid an amount of Rs.40.50 Lacs towards the plot and there were certain defaults in remitting the installments as per payment schedule shared at the time of allotment. It was further stated that the Agreement executed in favour of original allottees was endorsed in favour of the complainants on 4.4.2011/3.5.2011. It was further stated that the complainants duly acknowledged the fact that letter offering possession was sent to the original allottees on 28.12.2009 (Annexure C-5). It was further stated that at the time of purchase, the re-allottees/complainants were well aware that Opposite Parties No.1 and 2 sent a reminder/letter dated 16.12.2011 (Exhibit OP/1) to them confirming that pursuant to the offer of possession, they were to initiate construction at the site after getting sanction of building plans. It was further stated that having duly offered possession within the time frame endeavored under Clause 8 of the Agreement, there was no cause to pay any penalty to the complainants nor was any such communication made. It was further stated that, in any event, it were the complainants/original allottees who failed to take possession and there was no default on the part of Opposite Parties No.1 and 2.

14.            It was denied that any completion certificate was to be obtained from the Government of Punjab. It was further stated that the Governor of Punjab, in exercise of the powers vested in him, under Section 44(2) of PAPRA 1995 and all other powers enabling him to act in this behalf, was pleased to exempt the housing project of Opposite Parties No.1 and 2 from the provisions of PAPRA 1995, vide Notification No.18/41/2006-5HG-II/12790 dated 22.12.2006 (Exhibit OP/2). It was further stated that the possession of the plot was offered on completion of amenities as mentioned in the buyer’s Agreement. It was further stated that the PLC was levied on account of the reason that the unit, in question, was facing major road. It was denied that the plot, in question, was not having the access road. It was further stated that the plot was clearly accessible through a motorable road and the issues raised by the complainants were an afterthought in order to wriggle out of the contract. It was further stated that a rough map showing the access to the complainant’s plot was annexed as Exhibit OP/4. It was further stated that the layouts were subject to revision and the same was told to the allottees and duly mentioned in Clauses F and 1 of the Agreement. It was further stated that the plot allotted to the complainants was part of the approved layout, which could be clearly seen from a copy of the same. It was further stated that the complainant had full knowledge of the status of the unit and its location before its purchase. It was further stated that the provisional allotment was made to the initial allottees in May 2007 and Opposite Parties No.1 and 2 had all the requisite approvals at that time. It was further stated that the first layout for Sector 109 was approved in 2006 and not in 2008 as alleged as also finds mention in letter No.3073 CTP(PB) MPR-2 dated 29.02.2008. It was further stated that no objection was received from the original allottees at the time of booking in 2007 and, as such, present grievance was time barred. The issuance of letter dated 12.5.2014 was admitted by Opposite Parties No.1 and 2. It was further stated that the possession offered in 2009 and reminder sent in 2011 was done on completion of amenities as mentioned in the buyer’s agreement. It was further stated that in fact, many other allottees had already taken possession in Sector 109 and some of them had even started construction activity on their plots (copies of few such possession letters were annexed as Exhibit OP/3 Colly.).

15.            It was further stated that as per Clause 6 of the Agreement, the sale deed was to be executed and got registered within six months from the date of intimation after the plot was finally demarcated at the site and after receipt of full sale consideration. It was further stated that the charges, being levied, were as per the terms of the buyer’s Agreement and payable accordingly.  It was further stated that the complainants and the original allottees failed to take possession despite reminders and, as such, there was no question of execution of sale deed prior to the same. It was further stated that letter dated 12.5.2014 (Annexure C-13) itself mentioned that those allottees who had not taken over possession were requested to take possession else holding charges were to be levied as per the agreement. It was further stated that the maintenance charges were towards the common area maintenance being done by the Company, for which the resources had already been deployed. It was further stated that completion certificate was not required by the Company since the latter was exempted from the same under the provisions of PAPRA 1995. It was further stated that letter dated May 2014 clearly specified the amount to be paid for the unit to be handed over from a registration perspective. It was denied that there was any collusion between Opposite Parties No.1 & 2 and Opposite Party No.3. It was further stated that the complainant had adequate remedies under the RTI Act for any alleged violation and as per settled law, they could not raise those grievances before this Commission. It was further stated that the information provided was not correct and queries had been answered in complete ignorance of law and facts of the project. It was further stated that in AIR 2006 SC 1270 = (2006) 4 SCC 109, the Hon’ble Supreme Court held that full development took years and it was not possible that whole area was developed first and then allotment offered. It was further stated that the replies sent to persons other than the complainants could not be relied upon as it was not known what queries were raised. It was further stated that area where plot of the complainants was located was complete in all respects. It was further stated that temporary electricity connection was being facilitated to all plot holders as envisaged under the Agreement. It was further stated that permanent domestic connection could be applied after completion of construction. It was denied that LD system was not provided in the area where plot of the complainants was located. It was further stated that low tension distribution system (cables & feeder pillars) were installed fully in Augusta Greens area. It was further stated that Opposite Parties No.1 and 2 obtained a completion certificate for their internal purpose only, from a registered Architect viz. ‘Array Consortium’ on 02.05.2014 (Exhibit OP/5), who had duly certified that they had inspected the water works and sewage treatment system and found that they were fully functional. It was further stated that it was certified that Emaar MGF had got consent to operate from Punjab Pollution Control Board.

16.            It was further stated that all engineering services had been physically laid prior to offering possession and their plans also submitted to GMADA for approval. It was further stated that the correspondence cited nowhere stated that the services were not physically laid. It was further stated that the design approval was obtained in due course and execution of laying of the services was carried out as per guidelines laid down by GMADA and, as such, the same was also approved by the Competent Authority. It was further stated that the acquisition of land, which was challenged by way of CWP No.25843 of 2013 related to certain chunks of land, which the State Government had to compulsorily acquire on behalf of the Company to maintain the contiguity of the project so that the area could be developed in consonance with the approved master plan. It was further stated that Opposite Parties No.1 and 2, acted strictly in accordance with the terms of applicable Notifications and Rules prescribed by the Competent Authority. It was further stated that the complainants, being in breach of terms, could not be permitted to seek refund and in case of their failure to act as per terms of the Agreement, Opposite Parties No.1 and 2 were competent to invoke Clause 2(f) of the Agreement dated 4.7.2007 and forfeit 30% of the sale price in addition to holding charges etc. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.1 and 2, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.”

5.           The following facts were relief qua written statement filed by Opposite Party No.3 :-

“17.          Opposite Party No.3 filed its written statement on 21.10.2014. In its reply, Opposite Party No.3, took certain preliminary objections to the effect that the complaint was not maintainable against it; the complainants had no locus standi to file the present complaint against Opposite Party No.3; no cause of action accrued to the complainants to file the instant complaint against it; and the complainants were not consumers under the Act qua Opposite Party No.3.

18.           On merits, it was stated that as per the records available in the office of Opposite Party No.3, revised letter of intent was issued by the office of Chief Administrator, PUDA to Opposite Parties No.1 and 2 for establishing integrated township in an area of 2000 acres in Sectors 85 to 114, Mohali with special educational and wellness zone. It was further stated that  the promoter was to invest Rs.4000 crores in the project. It was further stated that out of this area vide Notification No.CTP(Pb) MPR 2/594 dated 22.01.2008, issued by the Housing and Urban Development Department, exemption had been granted from the applicability of PAPRA 1995 against total land measuring 145.38 acres falling in Sectors 98, 99, 104 and 106 and Villages Raipur Kalan, Dhol, Samhhalki and Sukhgarh of Mohali. It was further stated that vide Government Notification No.18/41/2006-5HG-2/7329 dated 11.08.2006, land measuring 106.66 acres in Sector 105, Mohali, had been exempted from the applicability of Section 44 of the PAPRA 1995. It was further stated that similarly, vide Government Notification No.18/41/2006-5HG-2/12783 dated 22.12.2006, land measuring 390.71 acres in Sectors 108 and 109, Mohali had been exempted from the applicability of PAPRA 1995. It was further stated that what had been approved vide letter dated 29.02.2008 was the revised layout plan and not the first layout plan as sought to be projected by the complainants. It was further stated that there was mention of letters dated 9.8.2006 and 21.12.2006 in the letter under reference. It was further stated that the layout plan already approved for Sectors 105, 108 and 109 by the Competent Authority was to be superseded by the revised approved layout plans. It was further stated that the drawing pertaining to Sector 109 was mentioned as EM-MP/SUB/109/1.01A dated 6.3.2007. It was further stated that Opposite Parties No.1 and 2, were bound to adhere to the layout plan as approved by the Competent Authority. It was further stated that the information sought by the complainants was supplied complete as available in the records of Opposite Party No.3. It was denied that Opposite Party No.3 was hand in glove with Opposite Parties No.1 and 2. It was further stated that at no stage, Opposite Party No.3 supplied any information, wherein any fact was misrepresented. It was denied that vide letter dated 12.6.2014, Opposite Party No.3, gave any evasive reply to the complainants in response to the information sought either vide letter dated 30.5.2014 or vide letter dated 2.6.2014. It was also denied that Opposite Party No.3 was liable to pay damages to the complainants, as according to Opposite Parties No.1 and 2, they deposited various amounts with Opposite Party No.3 towards EDC. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.3, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.”

6.           The complainants, filed replication wherein, they reiterated all the averments, contained in the complaint and repudiated the same, contained in the written versions of the Opposite Parties. 

7.           The parties led evidence in support of their case.

8.           We have heard the Counsel for the parties, and have gone through the evidence and record of the case carefully. 

9.           The first question, that falls for consideration, is, as to whether, in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint. This question has already been elaborately dealt with by this Commission in case titled Mrs.Anjani Dass Vs. DLF Universal Limited, Complaint Case No.295 of 2017, decided on 19.07.2017. Para No.12 of the said order, inter-alia, being relevant, is extracted hereunder:-

“12.  At the time of arguments, it was also argued by Counsel for the opposite parties that in view of Section 8 of the Arbitration and Conciliation Act, 1996, this Commission has no jurisdiction to entertain the consumer complaint and let the matter be referred to an arbitrator for adjudication.

                We are not going to agree with the argument raised. This Commission, in a case titled as ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126 has already elaborately dealt with this question, while relying upon ratio of judgments of the Hon’ble Supreme Court, titled as Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6  SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013), Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),  and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), and held that even in the face of existence of arbitration clause in an Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint. Furthermore, under similar circumstances, the National Commission, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No.346 of 2013, decided on 02.05.2016, held as under:-

“In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra.  In a catena of decisions of the Hon’ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in  Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha  (Dead) Through LRs. & Others  - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986.  [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986.”

Furthermore, the National Commission in a case titled Omaxe Limited Vs. Dinesh Lal Tarachandani, First Appeal No.1433 of 2016, decided on 24.11.2016, while dismissing the appeal filed by the builder (Omaxe), held as under:-

“We are unable to persuade ourselves to agree with the Learned Counsel.  In our opinion, the decision of the State Commission being based on the authoritative pronouncements by the Hon’ble Supreme Court and also on the decision dated 02.05.2016, rendered by this Bench in the case of Lt. Col. Anil Raj & Ors. Vs. M/s Unitech Limited & Ors. in CC No. 346/2013, in which we have held that notwithstanding the amendments in the Arbitration Act, the reasoning and ratio of the decision of the Hon’ble Supreme Court, in the case of Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Ors.  (Supra) still holds good, no fault can be found with the view taken by the State Commission. 

Consequently, the Appeal fails and is dismissed accordingly.”

                Recently, the larger Bench of the National Commission in a case titled as Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017, has held that an Arbitration Clause in the Agreements between the complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act.

                In view of the above, argument raised by Counsel for the opposite parties, in this regard, being devoid of merit is rejected.”

             

            Against the order passed by the larger Bench of the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, M/s Emaar MGF Land Limited filed Civil Appeal No.(s) 23512-23513 of 2017 in Hon’ble Supreme Court of India, which was also dismissed.

              In view of the above, the objection raised by Counsel for the Opposite Parties, being devoid of merit, is rejected.

10.          The next question which falls for consideration, is, as to whether the complainants, being re-allottee is a consumer or not.  No doubt, the complainants booked the plot through the services of Opposite Parties No.1 and 2, who arranged the same in re-sale from Mr.Kapil Dev Khullar and Ms. Sanju Khullar, both residents of Gurgaon (Haryana). It means that whatever rights and interest, in the plot, the original allottees, therefore, had got, as per terms and conditions of the Agreement, the same stood conferred upon the complainants. When the Plot Buyer’s Agreement (Annexure C-3) was endorsed in favour of complainants, the terms and conditions thereof were binding upon complainants and Opposite Parties No.1 and 2. The complainants, having stepped into the shoes of previous allottees on 04.04.2011, were consumer qua the Opposite Parties. On the said issue, the Hon'ble National Consumer Disputes Redressal Commission, New Delhi decided Revision Petition No.525 of 2013 titled as Vatika Limited Versus Mr.Rajneesh Aggarwal, on 22.07.2014.  In this case, the apartment, in question, was initially allotted to one H. Vikram (HUF) vide agreement dated 9.3.2004 but in August 2004, the aforesaid allottee approached the petitioner company for reallotment/assignment of the apartment in favour of one Shri Inderjeet Garg and the same request was allowed by the petitioner company. Thereafter again in April 2006, said reallottee Shri Inderjeet Garg approached the petitioner company for further reallotment/reassignment of the said apartment in favour of the respondent/complainant, which request was accepted upon acceptance of the terms and conditions of the said reallotment/reassignment and the agreement by the respondent/complainant. Thus, the respondent was a second allottee of the original allotment, more than 2 years later. In view of this, learned Counsel submitted that the respondent was not a consumer being reallottee and for that matter the second reallottee keeping in view the law laid down by the Apex Court in the case of H.U.D.A VS. Raje Ram [1 (2009) CPJ 56 (SC)]. The Counsel for petitioner/ opposite parties had submitted that the respondent/ complainant was neither entitled to any relief for the so-called delay in terms of the provisions of the original agreement, to which, the respondent had become a party having accepted its conditions on assignment of the flat consequent upon reallotment in his favour and also the complaint  itself was not maintainable in terms of  the ratio laid down by the Apex Court in HUDA Vs. Raje Ram’s case (supra).  The National Commission, in para 8 of its order held as under:

“8……………..The Foras below have already considered the aspects brought out by the petitioner company in the revision petition and nothing has been produced before us which would persuade us to take a different view.  So far as the case of Raje Ram is concerned, the facts of the present case are totally different. In the present case, the respondent/complainant had purchased the apartment in question from the first transferee on 29.4.2006 when the construction had not been completed and purchase/transfer of the apartment was duly approved by the petitioner company after charging Rs.65,840/- as transfer charges. In the circumstances, the petitioner company could not deny its role as a service provided to the respondent/complainant and has to be held liable for any deficiency in service with reference to the terms and conditions of the agreement which was made equally applicable to the complainant also consequent upon the approval of the assignment by the petitioner company on 30.4.2006 on payment of the transfer charges to the petitioner company .”

In our opinion, the facts of the instant complainants, are squarely covered by the facts in the Vatika Limited case (supra) and, as such, the complainants are consumers. The objection raised by the Opposite Parties is, therefore, not sustainable, being devoid of merit, and the same stands rejected.

11.          The next question that falls for consideration before us is as to whether the complaint is time barred or not. This issue stands infructuous, as is evident from the order dated 20.11.2017 passed by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi in First Appeal No.113 of 2015. The relevant portion of the said judgment reads thus :-

“16.    In this case,  the cause of action has arisen on the basis of bundle of facts including receipt of letter dated 12.5.2014. An additional demand of Rs.7,55,885/- was made which was not justified according to the complainants.  The complaint has been filed on 21.8.2014. Thus, the complaint has been filed within two years of the cause of action which started on 12.5.2014 and still continued till the date of obtaining the completion certificate by the OP. Accordingly, I am of the view that he State Commission has grossly erred in dismissing the complaint on the ground of limitation.”

12.          The next question, that falls for consideration, is, as to whether Opposite Parties No.1 & 2 offered possession of the unit/plot, in question, to the complainants, complete in all respects or not and whether the complainants were bound to accept possession. It is, no doubt, true that the complainants purchased the plot from Mr.Kapil Dev Khullar  & Ms. Sanju Khullar. Plot bearing No.178 was allotted in favour of the original allottees  vide letter dated 28.12.2009 (Annexure C-5). Plot Buyer’s Agreement was executed between the original allottees and the Opposite Parties on 04.07.2007. As per Clause 8 of the Agreement, possession of the said unit was to be delivered within a period of two years from the date of execution of the Agreement but not later than three years i.e. latest by 03.07.2010 and not more than that. It is evident from the stamp affixed on the Agreement and possession letter that the said plot was endorsed in favour of the complainants on 04.04.2011.  The plea of Opposite Parties No.1 and 2 is that offer of possession letter was sent to the original allottees on 28.12.2009 and thereafter vide letter dated 12.05.2014 (Annexure C-13) to the complainants but the complainants did not come forward to take possession.  It is pertinent to note that both the parties have failed to place on record offer of possession letter dated 28.12.2009 on record. A bare perusal of the aforesaid letter dated 12.05.2014 (Annexure C-13) clearly reveals that it is not a possession letter but only Opposite Parties No.1 and 2  informed to the complainants regarding commencing the process of execution and registration of conveyance deed, subject to payment of Rs.7,54,885.33. Opposite Parties No.1 and 2 referred to letter dated 28.12.2009, vide which, they claimed to have offered possession, whereas, in letter dated 12.05.2014, Opposite Parties No.1 and 2 stated that the complainants were requested to make payments by 12.06.2014.  Moreover, it is established from the information dated 30.06.2014 obtained by Sh.Udam Singla from PSPCL, Sohana under RTI (at page No.179 of the file), in which, it is clearly mentioned that “Not a single connection has been released under the category of permanent domestic connection category in sector 109, EMAAR MGF by PSPCL from 2007 to 2014.” So, it is clear that not a single domestic electricity connection was released to Opposite Parties No.1 and 2 in Sector 109 under the category of permanent domestic connection  uptill 30.06.2014 and vide letter dated 28.12.2009 offering possession was only an eyewash/paper possession to avoid penalty. It is also the admitted fact that completion certificate of the township of Opposite Parties No.1 and 2 has yet not been issued. Only Partial Completion Certificate was issued by the competent authority. Not only this, vide memo dated 12.06.2014 (at page No.188 of the file), GMADA (Opposite Party No.3) intimated that no certificates of the township viz. Electric grid station commissioning certificate, Electric supply commissioning certificate, Water supply commissioning certificate, Sewerage treatment plant commissioning certificate and Horticulture and landscaping completion certificate were issued.  Counsel for the complainants submitted that Opposite Party No.3 vide its reply dated 29.04.2014, had supplied information under the Right to information Act, 2005 to one Sh. Kabir Khanna stating therein that what to talk of issuing of certificates, the same were not even applied by Opposite Parties No.1 and 2 to the Competent Authority. The complainants sent an email dated 08.06.2014 (Annexure C-21) to Opposite Parties No.1 and 2, the relevant portion of the aforesaid letter reads thus :-

“It stated that as per the various information obtained under RTI Act 2005 from competent authority, Govt. of Punjab vide which it is clearly reflected that your project is nowhere near completion.

Further despite my repeated requests and reminders you have not made any legal penalty payment as per clause 8 of agreement dated 4.7.2007.

That you have not replied to my earlier email dated 14.06.2014.

In the above said circumstances you are requested to refund my entire payment along with 18% interest from respective date of deposits and payment as per penalty clause 8 of agreement dated 4.7.2007 entered into myself and my wife with you.” 

              It is clearly reflected from the afore-extracted letter that the project was not completed and compensation was also not given to the complainants. Therefore, the complainants sought refund of the amount paid alongwith interest. The similar question of the same sector has already been decided by this Commission in the case titled as Makhan Singh & Anr. Vs. Emaar MGF Land Limited, Consumer Complaint No.675 of 2017, decided on 02.05.2018. The relevant portion reads thus :-

16.            The next question, that falls for consideration, is, as to whether the Opposite Parties offered possession of the unit/plot, in question, to the complainants, complete in all respects or not. As per Clause 8 of the Agreement, possession of the unit was to be delivered to the complainants within a period of 12 months from the date of execution of the Agreement but not later than 18 months. So, the period of 18 months from the date of execution of the Agreement dated 28.04.2011 has expired on 27.10.2012. However, the Opposite Parties sent letter of intimation of possession to the complainants vide letter dated 23.04.2013 (Annexure    C-5) i.e. after a delay of about 6 months. According to the Counsel for the Opposite Parties, possession of the said plot was offered to the complainants vide intimation of possession letter dated 23.04.2013 (Annexure C-5) and, thereafter, sent telephonic reminders and reminder letters dated 09.05.2014 and 19.04.2017, after completion of amenities, the complainants did not come forward to take possession of the said plot, in question. On the other hand, as per the complainants, the Opposite Parties offered possession vide the aforesaid letter, without completion of amenities, at the site because when the complainants visited the site, they found that the entry points were sealed by the Forest Department, as such, possession offered by the Opposite Parties was just a mere paper possession.   After going through the record, we are not agreeable with the contention of the Counsel for the Opposite Parties because the Opposite Parties in their intimation of possession letter in respect of plot No.243, Augusta Greens in the project under the name and style of Emaar MGF, Mohali Hills, Sector 109, SAS Nagar, Mohali dated 23.04.2013 (Annexure C-5) sent to the complainants, which reads thus :-

 “This has reference to the Plot allotted to you in the Project. We take this opportunity to update you on the status of the development work of the Project and in particular about the Plot situated in Augusta Greens, Sector 109 of the Project.

X x x x x x

The development activities in all three sectors of Mohali Hills i.e. Sectors 105, 108 and 109 are in full swing and we are pleased to inform you that significant progress has been made with respect to development of basic infrastructure like water pipelines, sewer pipelines and development of roads, parks in these sectors. The development work of road and other basic infrastructure has been completed in portions of Augusta Greens, Sector 109, Mohali Hills, where your Plot is situated. Further, you may note temporary electricity and water connection has already been sanctioned for the Project.”

 A bare perusal of the aforesaid letter clearly reveals that the Opposite Parties only intimated the complainants regarding updation of the status of the development work of the project.  In the present case, according to the Agreement, possession was to be delivered to the complainant within a maximum period of 18 months from the date of execution of the Agreement i.e. latest by 27.10.2012 but the Opposite Parties failed to deliver possession of the unit, complete in all respects, to the complainants, within the stipulated period, as mentioned in the Agreement and only offered possession vide letter dated 23.04.2013 i.e. after a delay of about 6 months that too was only a paper possession and not more than.  It is well settled law that the onus to prove that the project had been completed and the area/site, in question, is fully developed is on the builder.  The Opposite Parties only obtained Partial Completion Certificate only on 16.10.2015. It is also relevant to mention here that intimation of possession letter sent to the complainants vide letter dated 23.04.2013 (Annexure C-5) and Partial Completion Certificate obtained by the Opposite Parties vide memo dated 16.10.2015 i.e. after about 2 ½ years of offer of possession. So, it is clearly proved that when the possession letter was sent to the complainants, the project was not complete. A bare perusal of possession letter (Annexure C-5) clearly shows that the gullible consumer was lured by the Opposite Parties stating that development work of the project is complete. Not only this, it is also relevant to note that a number of cases of Sector 109 of Emaar MGF Land Limited have already been decided by                            this Commission regarding the issue of sealing of project by Forest Department and other issues in Sector 109, one of which is titled as “Prabhujeev Singh Bajaj Vs. Emaar MGF Land Limited & Anr., Complaint Case No.43 of 2016, decided by this Commission vide order dated 29.06.2016”, the relevant portion of the said judgment reads thus :-.

“31. However, the main grouse of the complainant is that, despite relocation to the said units, even then, actual physical possession thereof, was not offered to him, whereas, on the other hand, paper offer was made to him, vide letters dated 25.08.2014 and 07.11.2014, because when he visited the site after receiving the said letters, to see development and basic amenities, the same were found missing and besides  that, all entry points of the project, had been sealed by the Forest Department, as opposite parties no.1 and 2, failed to take requisite permissions/sanction from it. Thus, in these circumstances, the principal question, which goes to the root of the case, and falls for consideration, is, as to whether, offer of possession made by opposite parties no.1 and 2, to the complainant, vide letters dated 25.08.2014 and 07.11.2014, in respect of the relocated units, could be said to be genuine offer or not. It is well settled law that the onus to prove that the project had been completed and the area/site, in question, is fully developed is on the builder/opposite parties no.1 and 2. It was so said by the National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. It is very strange that not even an iota of evidence has been placed, on record, by opposite parties no.1 and 2, to prove that when offer was made to the complainant, in respect of the units, in question, development work was complete and that all the basic amenities were in existence. On the other hand, in case, all the development activities, had been undertaken, and completed at the site, by the said dates, then it was for opposite parties no.1 and 2, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development activities, had been undertaken and completed at the site or not, but they failed to do so. Opposite parties no.1 and 2 were also required to produce on record, a copy of the Completion Certificate (if obtained), having been issued by the Competent Authority, which could be said to be best evidence, to prove their case, but they miserably failed to do so. It is well settled law that before offering/delivery of possession of unit, in a project, it is mandatory to obtain completion certificate, from the Competent Authority(s), failing which the purchaser is at liberty to say no, to such an offer.

                Secondly, the complainant has placed on record, copies of the RTI Information, relating to the said project, in question. Vide RTI Information dated 29.04.2014 Annexure C-31, it was clearly intimated by Greater Mohali Area Development Authority (GMADA), that opposite parties no.1 and 2, had not even applied to them for commission of sewerage treatment plant, water supply, electricity etc. Not only this, it is further evident from  RTI Information dated 26.02.2015 Annexure C-30, issued by the Punjab State Power Corporation Limited (PSPCL), that no regular electricity connection has been released in the sector, in question, wherein the plots are situated. The said RTI Information goes unrebutted by opposite parties no.1 and 2. Not even a single document has been brought on record to prove that the information relating to non-existence of basic amenities, mentioned in the said RTI Information is false, or that the said information was fabricated by the complainant. Had the said information been false or fabricated, opposite parties no.1 and 2, could have obtained certificate from the said Authorities, to say that the same had not been supplied from their Department, but they (opposite parties no.1 and 2) failed to do so. Thus, it could safely be said that the complainant has proved his case, that opposite parties no.1 and 2 did not even obtain permission to provide basic amenities such as water, electricity etc., till  29.04.2014 or 26.02.2015, the dates when RTI information aforesaid, was issued by the Authorities concerned.

                Not only this, it is also an admitted case, that entry points of the project had been sealed by the Forest Department, as opposite parties no.1 and 2, failed to take requisite permissions/ sanction from it, which fact has also been admitted by them (Opposite Parties no.1 and 2), in paragraph No.26 of their written version. Not only this, the said fact is further corroborated from the letter dated 15.04.2015 Annexure-4 (at page 190 of the file), sent by opposite parties no.1 and 2, to the Chief Administrator, GMADA, requesting it to take up the matter with the Forest Department, regarding sealing of entry points of the project, in question, as the same had been stated to be “illegal access”. It has been clearly mentioned by opposite parties no.1 and 2, in the said letter that “…….we are bound by the agreement to give delivery within time bound manner to our various restive customers, we had applied for grant of access with your good self”. This admission of the opposite parties no.1 and 2, in the letter dated 15.04.2015 written to the Chief Administrator, GAMDA, itself clearly goes to prove that even till that date (15.04.2015), they  were not in a position, to deliver possession of the plot(s) to their customers, including the complainant, in the said project, on account of reason that the entries thereof  had been sealed by the Forest Department, stating it to be an “illegal access through the Forest Strip”,permissions/sanction, whereof has not been obtained by them. Not even a single piece of evidence has been brought on record, to prove that the said entry points have been got reopened by opposite parties no.1 and 2, after having obtained permission from the Authorities concerned. If it is so, then it remained unclarified by opposite parties no.1 and 2, as to when entry points of the project were sealed, how could they offer possession of the units, to the allottees, including the complainant, in the year 2014.

                A plea was also taken by opposite parties no.1 and 2 that only recently the Forest Department has served notice on them, alleging illegal access created by them, through the Forest land. To the contrary, perusal of RTI Information dated 05.05.2015 Annexure C-28 (colly.) (at pages 120 to 127 of the file) issued by the Government of Punjab, reveals that a court case with regard to dispute between the Forest Department and opposite parties no.1 and 2, is pending litigation before the Civil Court Kharar, since 03.07.2012, as opposite parties no.1 and 2 have violated Sections 29,33 and 63 of the Indian Forest Act 1927 and have also violated the directions passed by the Hon'ble Supreme Court of India, vide order dated 12.12.1996. The said RTI Information also goes unrebutted by opposite parties no.1 and 2. Thus, the matter with regard to entry points aforesaid, in respect of the said sector, in dispute, was an old dispute, between the Forest Department and opposite parties no.1 and 2, as they had not taken permission from the Competent Authorities, which fact was not disclosed by them, in their written version, filed before this Commission. 

                In view of above, it is held that the act of opposite parties no.1 and 2, in offering paper possession of the units, in question, vide letters 25.08.2014 and 07.11.2014, in the absence of development work; basic amenities at the site; non-obtaining of completion certificate, and also entry points of the project being sealed/closed by the Forest Department, amounted to deficiency in providing service and also adoption of unfair trade practice. It is therefore held that the offer of possession made by opposite parties no.1 and 2, vide letters dated 25.08.2014 and 07.11.2014 is nothing, but a paper possession, which is not sustainable, in the eyes of law.”

                Aggrieved against the afore-extracted order passed by this Commission, the Opposite Parties filed First Appeal No.997 of 2016 in the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, wherein, the matter was settled between the parties on 08.11.2016, as per the Settlement Agreement.

                It is pertinent to note that the Opposite Parties  (Emaar MGF) filed appeal in another case i.e. First Appeal bearing No. 709 of 2016 titled as ‘Emaar MGF Land Limited Vs. Mandeep Saini’ before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, against the order of this Commission and the Hon'ble National Consumer Disputes Redressal Commission, New Delhi passed the order dated 14.09.2016, which reads thus :-

“x x x x xx

It is vehemently argued by Mr.Aditya Narain, learned counsel appearing for the Appellant that since the delay in delivery of possession of the flats in Sectors 104, 106, 108 and 109 is directly attributed to the sealing of the main access road to these Sectors by the Forest Department, one of the factors which weighed with the State Commission, falls within the ambit of force majeure clause in the agreement, there is no deficiency in service on the part of the Appellant in its alleged failure to deliver the possession of the subject flats in question by the committed time.  He thus prays that ex parte ad interim stay may to be continued. 

Prima facie, we are not convinced with the submission.  Hence, without expressing final opinion on the issue but having regard to the fact that the sealing orders have not yet been revoked and the Appellant is still not in a position to deliver possession of the fully developed flats with proper access, to the Complainants, we direct that the Appellant shall deposit in this Commission the principal amount(s) deposited by the Complainants with them, within 6 weeks from today.  On deposit of the said amount(s), it will be open to the Complainants to withdraw the said amount, on filing affidavits, undertaking to this Commission that they will refund the amount(s) withdrawn, if so directed at the time of final disposal of the Appeals.  Subject to the said deposits, the operation of the remaining directions, regarding interest, compensation, etc., in the impugned order shall remain stayed.

X x x x x xx x”

From the afore-extracted order, it is clearly proved that Counsel for the Opposite Parties admitted before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi that the delay in delivery of possession to these Sectors i.e. Sectors 104, 106, 108 & 109 was due to the sealing of main access road by the Forest Department. It is clearly proved that the Hon'ble National Consumer Disputes Redressal Commission, New Delhi without expressing final opinion on the issue but having regard to the fact that the sealing orders have not yet been revoked and the Appellant i.e. Emaar MGF Land Limited is still not in a position to deliver possession of the fully developed flats with proper access, to the complainants i.e. till the passing of the afore-extracted order dated 14.09.2016. So, we are of the view that in the present case, the possession offered by the Opposite Parties is only a paper possession and not more than that.

17.            The next question that falls for consideration, is, as to whether, the complainants were bound to accept offer of possession, in respect of the unit/plot, in question, when the same was offered to them vide letter dated 23.04.2013 (Annexure C-5) and that too, after a delay of about six months, in the absence of any force majeure circumstances. It is pertinent to note that possession of the unit was to be delivered to the complainants within a maximum period of 18 months from the date of execution of the Agreement i.e. latest by 27.10.2012. However, the Opposite Parties sent letter of offer of possession of different unit only vide letter dated 23.04.2013 to the complainants, after a delay of about six months and that too only a paper possession, without completion of formalities, as per terms and conditions of the Agreement. It may be stated here that non-delivery of possession of the unit, in question, complete in all respects, by the stipulated date, is a material violation of the terms and conditions of the Agreement. It is not the case of the Opposite Parties that the said delay occurred, on account of force majeure circumstances, met by them, on account of some stay or any other valid reason. It is settled law that when there is a material violation on the part of the builder, in not handing over possession by the stipulated date, the purchaser is not bound to accept the offer, even if the same is made at a belated stage and on the other hand, can seek refund of amount paid. It was so said by the National Commission, in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, wherein, under similar circumstances, while negating the plea taken by the builder, it was held  as under:-

“I am in agreement with the learned senior counsel for the complainants that considering the default on the part of opposite parties no.1 and 2 in performing its contractual obligation, the complainants cannot be compelled to accept the offer of possession at this belated stage and therefore, is entitled to refund the entire amount paid by him along with reasonable compensation, in the form of interest.”

 

Not only as above, in a case titled as Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, wherein possession was offered after a long delay, this Commission, while relying upon the judgments rendered by the Hon`ble National Commission, ordered refund to the complainants, while holding as under:-

“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same.

 

Further, in another case titled as M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, under similar circumstances, held as under:-

“I am of the prima facie view that even if the said offer was genuine, yet, the complainants was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.

 

                        In view of the above, it is held that since there was a material violation on the part of the Opposite Parties, in not handing over physical possession of the unit, complete in all respects, within the stipulated date, as mentioned in the Agreement, the complainants were at liberty, not to accept the offer made after a long delay followed by reminder dated 09.03.2014 and 19.04.2017, and on the other hand, was right by seeking refund of the amount deposited, alongwith interest and compensation, by way of filing the instant complaint.”

              From the afore-extracted order, it is clearly proved that Counsel for the Opposite Parties (Emaar MGF) admitted before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi that the delay in delivery of possession to these Sectors i.e. Sectors 104, 106, 108 & 109 was due to the sealing of main access road by the Forest Department. It is clearly proved that the Hon'ble National Consumer Disputes Redressal Commission, New Delhi without expressing final opinion on the issue but having regard to the fact that the sealing orders have not yet been revoked and the Appellant i.e. Emaar MGF Land Limited is still not in a position to deliver possession of the fully developed flats with proper access, to the complainant i.e. till the passing of the afore-extracted order dated 14.09.2016. So, we are of the view that in the present case, the possession offered by Opposite Parties No.1 and 2 to the original allottees on 28.12.2009 and in the year 2014 to the complainants is only a paper possession and not more than that.

13.          The next question, that falls for consideration, is, as to whether, the complainants are entitled to refund of the amount of Rs.42,28,438/-, as claimed by them. The complainants sought refund of Rs.42,28,438/-, which included transfer charges of Rs.1,50,000/-. It is evident from the statements of account, annexed by the complainants, the complainants only paid an amount of Rs.40,78,438/-. With regard to refund of transfer charges of Rs.1,50,000/- is concerned, the complainants are not entitled for the same because the said unit was purchased by them on their own wish, for which, they paid the transfer charges. Even Opposite Parties No.1 and 2 failed to give physical possession of the unit, in question, complete in all respects, within the stipulated period, as mentioned in the Agreement or even by the time when the complaint was filed. Opposite Parties No.1 and 2 only offered paper possession and not more than that. The complainants cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit purchased by them. Opposite Parties No.1 and 2, therefore, had no right, to retain the hard-earned money of the complainants, deposited towards price of the unit, in question i.e. Rs.40,78,438/-. The complainants are thus, entitled to get refund of amount deposited by them. In view of above facts of the case, Opposite Parties No.1 and 2 are also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them.

14.          Since the unit, in question, was transferred in favour of the complainants on 04.04.2011, in the light of ratio of judgment in case titled ‘Darbara Singh and ors. Vs. Emaar MGF Land Limited and Ors.’, Complaint Case No.147 of 2016 decided by this Commission on 22.08.2016, the complainants are held entitled to interest @12% per annum, w.e.f. 04.04.2011 in respect of amounts deposited up-to 04.04.2011 and interest @12% per annum on the amounts deposited thereafter from 04.04.2011 onwards from the respective dates of deposits.

15.          As far as the plea taken by Opposite Parties No.1 and 2, regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not their (Opposite Parties No.1 and 2) case, that they were ready with possession of the unit, to be delivered to the complainants, by the stipulated date but it was they (complainants) who wanted to rescind the contract, on account of some unavoidable circumstances/ financial constraints due to deficiency in service rendered by Opposite Parties No.1 and 2 or for  any  personal  reason,  and  are  seeking  refund  of the amount deposited. Had this been the case of Opposite Parties No.1 and 2, only in those circumstances, it would have been held that since the complainants themselves are rescinding the contract, as such, they are entitled to the amount deposited, after deduction of the earnest money, as per the terms and conditions of the Agreement. In this view of the matter, the plea taken by Opposite Parties No.1 and 2, in this regard, has no legs to stand and is accordingly rejected.

16.          No other point, was urged, by Counsel for the parties.

17.          For the reasons recorded above, the complaint is partly accepted, with costs. Opposite Parties No.1 and 2 are jointly and severally directed as under:-

(i)           To refund the amount of Rs.40,78,438/- alongwith simple interest @12% per annum, to the complainants, with effect from 04.04.2011 for the amount(s) paid uptil 04.04.2011 by the previous allottee and from the respective dates of deposits, in respect of payments made w.e.f. 04.04.2011 onwards, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, Opposite Parties No.1 and 2 shall pay the aforesaid amounts alongwith simple interest @15% per annum, instead of 12% per annum, from the date of default i.e. after expiry of 45 days period, till actual payment;

(ii)          To pay an amount of Rs.1,50,000/- on account of mental agony, physical harassment and deficiency in service and Rs.35,000/- as litigation costs, to the complainants, within a period of 45 days from the date of receipt of a certified copy of the order, failing which, Opposite Parties No.1 and 2 shall pay the aforesaid amounts alongwith simple interest @12% per annum, from the date of filing the complaint till actual payment.

18.          The complaint qua Opposite Party No.3 stands dismissed.

19.          However, it is made clear that, if the complainants in the aforesaid case, has availed loan facility from any banking or financial institution, for making payment of installments towards the said unit(s), it will have the first charge of the amount payable, to the extent, the same is due to be paid by the complainants.

20.          Certified Copies of this order be sent to the parties, free of charge.

21.          The file be consigned to Record Room, after completion.

Pronounced.

June 26, 2018                                       

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

 

 [DEV RAJ]

MEMBER

 

 

 (PADMA PANDEY)

        MEMBER

Rb