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Judgment
By this order, we propose to dispose of the above noted appeals involving similar question on law and facts.
Shorn off unnecessary details, the facts relevant for the disposal of the appeals are that respondents in the appeals filed separate complaints against the appellant developer alleging that they booked residential plots in the development project undertaken by the appellant developer in the land falling in revenue estate of Village Islam Nagar in Sector 3, 4 and 4A of Pinjore Kalka Urban Complex District Panchkula. As per the terms and conditions of the Plot Buyer''s agreement arrived at between the respective parties, the opposite party developer was supposed to deliver the possession of the respective plots to the complainants within 24 months with a grace period of six months. According to the complainants, despite of the fact that they had made substantial payment against the consideration amount, the opposite party builder failed to deliver possession of the respective plots within the stipulated time. The complainants thus raised consumer disputes before the State Commission Haryana seeking refund of the amounts deposited by them alongwith 18% p.a. interest besides Rs.10,00,000/- as compensation and litigation expenses
The opposite party on being served with the notice of respective complaints filed written statement resisting the respective complaints. In the respective written statements, opposite party pleaded that before seeking application of allotment of plots from the public at large, the opposite party obtained necessary wild life clearance, forest clearance, letter of intent issued by DTCP Haryana for setting up of residential plotted colony on the additional land, airport clearance etc. It was further pleaded that on 23.03.2010, after the aforesaid clearances have been obtained, DTCP Haryana approved lay out plan of the projected residential colony and granted license no. 28 of 2010 to the appellant for developing plotted cum group housing colony on the subject land. Only thereafter the provisional registration of plot in favour of applicants was done after receiving certain payments varying between Rs.6,25,000/- to Rs.8,00,000/-. It is further alleged that on 08.11.2010, DTCP Haryana granted letter of intent for setting up of residential plotted colony on additional land of 10.594 acres falling in revenue estate of village Islam Nagar in Sector 3, 4 and 4A of Pinjore Kalka Urban Complex, District Panchkula. Another letter of intent was issued by DTCP for setting up of residential plotted colony on further additional land measuring 18.343 acres. The lay out plan for the entire project area measuring 198.801 acres was submitted for approval on 24.01.2011.
It was further pleaded by the appellant that after completing the aforesaid formalities, the appellant company made an application to the appropriate authority for grant of permission for extraction of ground water. In response to the said letter on 16.03.2011, DTCP Haryana directed the appellant not to carry out any earth work or construction work at the aforesaid 198.801 acres site without obtaining no objection certificate from the Irrigation Department, Haryana. This condition was imposed for the first time although there was no mention of such condition either in the letter of intent or the licence for development issued in favour of the appellant.
According to the opposite party, the delay caused in delivery of plots to the respective complainants was unintentional as the appellant was prevented by the restrictions imposed by DTCP on carrying out earth work or construction work without no objection from the Irrigation Department of Haryana, which no objection was granted after a span of almost two years on 20.03.2013. Immediately after receipt of no objection, the appellant vide letter dated 21.03.2013 requested for approval of lay out plan of the entire 198.801 acres and due to bureaucratic delays, the approval was received on 07.08.2013 / 14.10.2013 and license no. 55 & 74 for development of additional land were granted. On the receipt of the approval and license, the appellant opposite party applied for clearance and no objection from various authorities and the last formal clearance from National Board of Wild Life was received on 24.04.2015. It was pleaded by the opposite party that because of the aforesaid reason which were not within the control of the appellant, the delay has occurred. Therefore, in view of Force Majeure clause in Plot Buyer''s agreement, the opposite party cannot be said to be guilty of deficiency in service. Besides aforesaid plea on merit, the opposite party referred to the arbitration agreement between the parties and pleaded that matter should be referred to arbitration. It was also pleaded that complaints were not maintainable for the reason that complainants are not the consumers as defined under section 2 (1) (d) of the Consumer Protection Act, 1986 ( in short, the Act).
State Commission Haryana on consideration of the pleadings and evidence rejected the pleas of the opposite party regarding arbitration clause as also the maintainability of complaint. On merits, State Commission in all the complaints found the appellant opposite party guilty of deficiency in service as it had failed to deliver possession of the plots within the stipulated time and allowed the respective complaints by directing the opposite party to refund the money paid by the complainants against the consideration amount to the respective complainants alongwith 12% interest p.a.. Besides, Rs.25,000/- was awarded as compensation and Rs.10,000/- as litigation expenses in each case.
Being aggrieved of the order of the State Commission, opposite party preferred the above noted appeals.
Learned counsel for the appellant/OP has assailed the impugned order firstly on the ground that the State Commission has failed to appreciate the facts, particularly, with respect to the Force Majeure plea taken by the appellant/OP. Learned counsel has taken us through the record and submitted that DTCP Haryana, after completion of formalities of wildlife clearance, forest clearance, airport clearance granted to the appellant/company, granted licence No. 28 of 2010 on 23.3.2010 and approved the layout plan to the appellant/company for setting up the a plotted cum Group Housing Colony on the land admeasuring 169.864 acres falling in revenue estate of Village Islam Nagar in Sector 3, 4 and 4A of Pinjore Kalka Urban Complex, District Panchkula.
It is contended that only after grant of licence, applications for provisional registration of plots were sought from the customers including the respondents/consumers. It is further contended that after completion of formalities, Plot Buyers agreements were executed between the appellant and the respondents wherein the payment plan was changed from "Time Bound Payment Plan" to "Development Linked Payment Plan". It is submitted that vide letter dated 9.12.2011, DTCP revised the Road Circulation plan for the Sectors 3, 4, 4A & 5 of the Pinjore Kalka Urban Complex and accordingly called upon the appellant to submit revised layout plan. Pursuant to the above directions of the DTCP, the revised lay out plans were promptly submitted by the appellant/company with the concerned authorities on 12.12.2011. The revised lay out plans were ultimately approved on 14.10.2013 meaning thereby that till the said date, the appellant could not have proceeded with the developmental work. In the meanwhile, another obstruction came in the way of development work as the new guidelines for environmental clearance were issued and for that purpose clearance from Wildlife Board was required. The said clearance could not be obtained because Wildlife Board could not be in existence at the relevant time and this resulted further delay in the project. Learned counsel submitted that although the wild life clearance was earlier obtained in the year 2009, but in view of the new guidelines, the appellant was compelled to apply afresh for the wildlife clearance. It is also argued that there was stay against the development on the subject land by the order of Supreme Court which remained in operation from 19.4.2012 to 12.12.2012. It is also argued that the State Commission has ignored the aforesaid aspects which caused delay in the development of the project and delivery of plots to the respondents and the obstructions were not within the control of the appellant. Thus, in view of the Force Majeure clause, the complaint ought to have been dismissed.
Respective counsel for the respondents have stated that benefit of Force Majeure clause is not available to the appellant for the reason that the appellant entered into the plot buyers agreement with the respondents by concealment of material facts.
Learned counsel has contended that undisputedly, vide letter dated 16.3.2011, DTCP, Haryana restrained the appellant from carrying out any earth work or construction work at the site without obtaining NOC from irrigation department, Haryana which permission was ultimately received in April 2015. Despite of the aforesaid restriction on undertaking construction work, the appellant without disclosing the said facts, executed Plot Buyer''s agreement with the respondents on 9.9.2011, which shows the mala fide on the part of the appellant and amounts to deficiency in service as well as unfair trade practice.
We have considered the rival contentions and perused the record. On careful consideration of record, we do not find merit in the contention of the appellant. In our considered view, the protection of Force Majeure clause in the agreement between the parties is not available to the appellant builder for the reason that it is the stand of the appellant that vide letter dated 16.03.2011, DTCP Haryana had directed the appellant not to carry out any earth work or construction work at the subject site without obtaining no objection certificate from the Irrigation Department Haryana. It is also admitted case of the appellant that ultimate clearance for undertaking construction work was received vide letter dated 24.04.2015 of National Board of Wild Life granting clearance for the development project. Despite of the aforesaid restraint on the appellant for carrying out development work, admittedly, the appellant executed Plot Buyer''s agreement with the respective complainants during the period 23.06.2011 & 24.06.2011. It is not the case of the appellant that while entering into the agreement, the appellant disclosed about the restraint letter dated 16.03.2011 issued by DTCP Haryana. Thus, it is clear that appellant by concealment of material fact defrauded the respondents / complainants to execute the agreement contained Force Majeure clause, which in our considered opinion is unfair practice amounting to deficiency in service. As the agreement containing Force Majeure clause has been executed by concealment of material fact on the part of the opposite party, the aforesaid agreement is not binding on the complainants. Thus, appellant cannot take benefit of said clause. In view of the discussion above we do not find fault with finding of State Commission holding the appellant to be guilty of deficiency in service and directed the appellant to refund the money paid by the respective complainants with 12% interest besides payment of compensation and litigation expenses.
Learned counsel for the appellant has contended that State Commission has failed to appreciate that respondents complainants are not the ''consumers'' as envisaged under section 2 (1) (d) of the Act for the reason that their real motive in booking the subject plots was to make profit by subsequently sale of plots at enhanced rate.
We do not find merit in the above contention as appellant has failed to show any cogent evidence which may indicate that the respondents complainants or any one of them has been indulging in sale purchase of the properties or that complainants or any one of them had booked the subject plots in the development project undertaken by the appellant with the intention to sell the plot on subsequent date for profit. Thus, the question raised by counsel for the appellant is answered in the negative.