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Judgment
Ram Surat Ram Maurya, Presiding Member
Heard Ms. Geeta Luthra, Sr. Advocate, assisted by Ms. Shivani Luthra Lohiya, Advocate, for the complainants and Mr. Pinaki Misra, Sr. Advocate, assisted by Mr. Pravin Bahadur, Advocate, for the opposite party.
Ranjana Bhatia has filed above complaint, for directing the opposite party to (i) handover the possession of the flat allotted to her complete in all respect with all facilities and amenities; (ii) pay delay compensation in the form of interest @12% per annum on the amount deposited by her from due date of possession till the date of handing over possession; (iii) declare that the complainant is not liable to pay Rs.211500/- towards cost of increase in super area of 30 sq. ft., Rs.171709/- as demanded towards proportionate charges for bulk supply of electric energy, for creating infrastructure and installation, Rs.592292/- towards other costs, Rs.12377/- towards gas piping charges, Rs.133689/- towards Value Added Tax as contingency deposit, Rs.171214/- towards escalation charges, Rs.1106279/- towards service tax; (iv) to reimburse TDS deducted by the opposite party with interest; (v) to refund Rs.2399060/- with interest @18% per annum, paid on final demand; (vi) declare that the complainant is not liable to take electricity connection from the opposite party; (vii) pay Rs.1000000/- as compensation for mental agony and harassment: (viii) award exemplary costs and litigation costs against opposite party and (ix) any other relief which is deemed fit and proper in the facts and circumstances of the case.
The complainant stated that DLF New Gurgaon Homes Developers Private Limited (the opposite party) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. The opposite party launched a group housing project in the name of “The Primus DLF Garden City” at Sector 82-A, Gurgaon, in the year 2012 and made wide publicity of its facilities and amenities, such as multi-purpose hall with banqueting facilities, card room, snooker room, Aerobic/Yoga centre, gymnasium with modern equipment, steam & sauna, squash court, tennis courts, mini home theatre/A.V. room, shops, swimming pool with change rooms, separate kids pool etc. Believing upon the representations of the opposite party, the complainant booked a flat and deposited booking amount on 21.02.2012. The opposite party allotted Apartment No.PMG-012, area 2039 sq.ft., total cost of Rs.19604800/- and executed Apartment Buyer’s Agreement on 20.06.2012. The complainant opted for “construction linked payment plan”. As per demand, the complainant deposited Rs.1026000/- on 22.02.2012, Rs.2035062/- on 05.04.2012, Rs.2044143/- on 11.05.2012, Rs.2010844/- on 17.08.2012, Rs.25074/- on 11.05.2013, Rs.1537386/- on 24.12.2013, Rs.1540642/- on 16.01.2014, Rs.1540642/- on 25.02.2014, Rs.1540642/- on 25.03.2014, Rs.1017291/- on 24.06.2014, Rs.955579/- on 22.10.2014, Rs.1017291/- on 17.12.2014, Rs.1017292/- on 23.01.2015 & Rs.1025405/- on 29.01.2016 (total Rs.18333293/-). Clause 11(a) of the agreement provides 42 months period from the date of the application for delivery of possession, which period expired on 22.08.2015. The opposite party applied for issuance of “occupation certificate” for Towers-A, B, C, D, E, F, G, H, J, and EWS block, which was issued on 07.10.2016 but in respect of club building and related facilities, “occupation certificate” has not been issued as such it was a “part occupation certificate”. The opposite party, vide letter dated 27.01.2017, supplying final statement of account, demanded Rs.3057033/- as balance amount and Rs.390900/- as “Interest Bearing Maintenance Security”, and asked to complete documentation for delivery of possession. Statement of account depicts demands of Rs.211500/- for increase of 30 sq.ft. area, Rs.171709/- as bulk power supply, Rs.592292/- as other costs, Rs.133689/- as VAT contingency deposit, Rs.12377/- as gas pipe charges, Rs.171214/- as escalation charges, Rs.390900/- as “interest bearing maintenance security” and Rs.1106279/- as service tax. In formalities of documentation, the opposite party sought for an indemnity-cum-undertaking from the complainant to the effect that they had no objection against nomination of maintenance agency by the opposite party and they will have no claim of any nature against the opposite party. The complainant wrote a letter dated 02.03.2017 to the General Manager of the opposite party in respect of various illegal demands, which was replied vide letter dated 06.06.2017. The complainant deposited Rs.3463451/- on 29.06.2017, under protest. But the opposite party did not handover possession and insisted to execute indemnity-cum-undertaking for handing over possession. “Occupation certificate” dt. 07.10.2016, was a “part occupation certificate” issued in the name of M/s Naja Builders and Developers Pvt. Ltd. Then this complaint was filed on 12.09.2017.
The opposite party has filed its written reply on 28.12.2017, in which, booking of the flat, allotment of the flat, execution of agreement and the deposits made by the complainant, have not been disputed. The opposite party stated that the complainant, on their own will applied for allotment of the flat. The complainant made payments of instalments payable on 26.12.2014 with delay of 28 days and 30.05.2017 with delay of 30 days as such interest was charged as per agreement. The opposite party duly apprised the buyers with the status of the project from time to time and regularly updated on the website. The opposite party completed construction of 624 apartments and applied for issuance of “occupation certificate”, on 13.06.2016, which was issued on 07.10.2016. The complainant was offered possession vide letter dated 27.01.2017, along with final statement of account, in which, ‘early payment rebate’, ‘decrease in EDC/IDC’ and ‘delayed compensation’ were credited. The demands, including escalation charges, are in terms of agreement. ‘Super area’ has been defined in Annexure-II of the agreement and in clause-1.7, it has been clarified that parking space is not included in ‘super area’. It has also been clarified under clause-10 that ‘super area’ was tentative and liable to vary plus or minus 10% and final ‘super area’ would be determined after issue of “occupation certificate”. In the present case, ‘super area’ is increased to the extent of 1.16%. Clause-1.2 mentioned about escalation charges. Other costs are explained in Note-1, which is proportionate share of taxes and cesses, already paid. VAT and Service tax are statutory liabilities and have to be paid. Gas pipeline charge is not included in the price as mentioned in the agreement. Clause-20 provides for “Interest Bearing Maintenance Security”. As per Clause-1.2 of the agreement, escalation was worked out to 6.47% of total basic price but escalation @0.86% of basic price was charged as charged by the contractor. TDS has been deducted as per mandatory provisions of Income Tax Act, 1961. The complainant is not entitled to dispute various clauses of the agreement at the time of offer of possession. It has been denied that “occupation certificate” dated 07.10.2016 was a “part occupation certificate”. M/s Naja Builders & Developers Pvt. Ltd. was a land owning company, which has been mentioned in the agreement. It is usual practice that final finishing work is done after deposit of the amount on offer of possession. Instead of depositing balance amount, completing the documentation and taking possession, the complainant raised frivolous objections. “The Primus Condominium Association” has been formed as per Haryana Apartment Ownership Act, 1983 for carrying out maintenance of the project, in which, all the flat owners are entitled for becoming its member. The members can choose and engage their maintenance agency and can elect its managing committee. It has been denied that the basic amenities, which are necessary for habitation in the flat, were not provided at the time of offer of possession. Undertaking has to be given after full satisfaction of performance of the contract at the final stage. Many allottees have taken possession and are residing in it. The construction of the club building and other amenities were completed and “occupation certificate” was issued on 19.06.2017. All the promised amenities and facilities are completed and the complainant can take possession after completing documentations. The agreement provides for arbitration in case of any dispute and the complaint is not maintainable. The complainant is not a consumer rather an investor. The complaint is liable to be dismissed.
The complainant has filed Rejoinder Reply, in which, she stated that she had deposited balance amount under protest and took possession on 29.03.2018. The opposite party had shown two sector roads, in layout plan attached with the agreement, accessing the project from Express Highway. On the spot, only one sector road upto the gate of the project has been constructed. There is no accessibility in the left side of the sector road. “Occupation certificate” of nursery school and EWS block is still awaited. “Occupation certificate” prescribed various conditions, from which, it was proved that basic amenities for habitation were not in existence at that time. Electricity supply from power grid was made available in June, 2018 but full load is still unavailable. There is no sewage line up to the project. Basement parking has not been constructed till August, 2018. Restaurant is not functional. The opposite party has formed “Primus Resident Condominium Association”, in which 7 previous employees of the opposite party were members although none of them were resident in this project. The opposite party gave maintenance contract to JLL without obtaining tenders from competitive bidders.
The complainant filed Affidavit of Evidence, Affidavit of Admission/Denial of documents of Ranjana Bhatia and documentary evidence. The opposite party has filed Affidavit of Evidence of Atul Srivastava, Affidavit of Hemant Kumar and documentary evidence. Both the parties have filed their written submissions.
I have considered the arguments of the parties and examined the record. The complaint was filed challenging various demands and issuance of “occupation certificate”. In the Rejoinder Reply, the complainant has raised her objection on a new ground that one approach road of the project has been taken on rent, which is constructed up to the project from one side and other approach road was not constructed. So far as the issuance of “occupation certificate” is concerned, one of the buyers of the flat in this project challenged it in Writ Petition (C) No.6558 of 2021 before Punjab & Haryana High Court, which was dismissed. Under Haryana Building Code, 2016, “occupation certificate” is mandatory for offer of possession and not the “completion certificate”. The opposite party obtained “occupation certificate” of the building, in which, the complainant was allotted flat on 07.10.2016 and offered possession on 27.01.2017. “Occupation certificate” of club building was obtained on 19.06.2017 and “completion certificate” of the project was obtained on 20.11.2019. It is usual practice among the builders that final finishing works are done after deposit of the amount demanded on offer of possession. The complainant has taken possession on 12.03.2018. Supreme Court in Ireo grace Realtech Vs. Abhishek Khanna, (2021) 3 SCC 241 and this Commission in CC/1564/2017 Shailesh Kumar Vs. DLF Home Developers (decided on 12.09.2018), Vineet Kumar Vs. DLF Universal Ltd., 2019 SCC OnLine NCDRC 9 and Pramod Kumar Madan Vs. DLF Ltd., 2021 SCC OnLine NCDRC 924, held that if possession is offered after obtaining “occupation certificate”, then the home buyer is contractually obligated to take possession. Shailesh Kumar’s case (supra) arose out of same project “The Primus DLF Green City” and judgment of this Commission has been approved by Supreme Court in Civil Appeal No.11254 of 2018 DLF Home Developers Vs. Shailesh Kumar, (decided on 22.02.2019).
So far as the argument that club building was not complete and club related facilities were not operating are concerned, it may be deficiency in service but on this ground, delivery of possession cannot be withheld.
The complainant has challenged the demand of increase of super area. In clause-10 of the agreement, it has been mentioned that ‘super area’ was tentative and liable to vary plus or minus 10% and final ‘super area’ would be determined after issuance of “occupation certificate”. In the present case, ‘super area’ is increased to the extent of 1.05%. Supreme Court in DLF Home Developers Ltd. Vs. Capital Green Flat Buyer’s Association, 2020 SCC OnLine SC 1125, has upheld 10% increase in super area. Demand in this respect cannot be said to be illegal. In final statement of account, EDC/IDC has been deducted as it were decreased by Haryana Government.
The complainant has challenged the demand of “other costs”, and service tax. “Other costs” are explained in Note-1, which is proportionate share of taxes and cesses, already paid. VAT is realized under Haryana Value Added Tax, 2003. Service Tax is realized under Finance Act, 2010 as amended by Finance Act, 2017. The Chartered Accountant has given certificate that Swachh Bharat Cess, Krishi Kalyan Cess and Labour Welfare Cess have also been realized. Demand of VAT, Service tax and cess are statutory liabilities and have to be paid.
The complainant has challenged the demand of “Bulk Power Supply”. The opposite party has deposited total Rs.82300000/- for Power Supply. The opposite party applied for supply of 3570 KW electricity, on 21.10.2016, which was revised to 3948 KW on 17.01.2017. Dakshin Haryana Bijli Vitran Nigam Ltd. sanctioned bulk power supply on 14.06.2017. Power supply was started from 08.06.2018. The load was increased in September, 2021 and June, 2022. Now the sanctioned load is being supplied. Demand from the buyers for “Bulk Power Supply” on pro-rata basis is not illegal.
The complainant has challenged the demand of gas pipe charges. Initially there was no gas supply through pipeline near the project. This charge was not included in the price of the flat. At the time of offer of possession, gas supply through pipeline has become available as such, this charge was demanded, which is not illegal. It was an additional facility, which has been provided on payment basis.
The complainant has challenged the demand of escalation charges, As per Clause-1.2 of the agreement, the opposite party is entitled to realize escalation charges. The opposite party stated that escalation charge was worked out to 6.47% of total basic price but as the contractor has charged @0.86% of basic price, the opposite party is realizing at the same rate, which is not illegal.
The complainant has challenged the demand of “interest bearing maintenance security”, which is as per clause 20 of the agreement. So far as formation of “condominium association” is concerned, one buyer has challenged it in Writ Petition (C) No.19291 of 2019 before Punjab & Haryana High Court and also filed a complaint District Registrar Firms & Society, Gurugram. “The Primus Condominium Association” has been formed as per mandatory provision of Haryana Apartment Ownership Act, 1983 for carrying out maintenance of the project, in which, all the flat owners are entitled for becoming its member. The members can choose and engage their maintenance agency and can elect its managing committee. The complainant is still not member of the association. At this stage, the complainant is not entitled to challenge it without taking possession. So far as allegation relating to financial irregularity, is concerned, the association is registered under Haryana Society Registration Act, 2012 and is subject to audit. If any financial irregularity is found, then the competent authority will take action against the managing committee.
Demand of stilt parking charges has been upheld by Supreme Court in Wg. Cdr. Arifur Rehman Vs. DLF Southern Home Pvt. Ltd., (2020) 16 SCC 512. In the final statement of account, ‘early payment rebate’, ‘down payment rebate’ “additional down payment rebate’, ‘decrease in EDC/IDC’ and ‘delayed compensation’ were credited as such final demand cannot be said to be illegal.
The opposite party has stated that as per terms and conditions of “occupation certificate”, the opposite party was supplying potable water through tanker and maintained 24 hour water supply to the residents. The opposite party has applied for permanent connection of water, immediately after issuance of “occupation certificate” which was started from 04.09.2021, by HUDA. Shortage of water is still met out through tanker. As per condition of “occupation certificate”, the electricity was supplied through the generator.
The opposite party, in Tentative Plan (Annexure-1-A attached with the agreement), represented two sector roads of 24 meter wide across the project. In fact, none of these two roads are sector roads, as is proved from the map of Gurgaon-Manesar Urban Complex, 2031 and Minutes of Meeting dated 30.08.2012 and 08.03.2013, filed along with IA/7127/2019 filed in CC/1913/2017. As admitted to the opposite party, some portion of one road, which is constructed up to the project, belongs to the local farmers and taken on lease through lease deed dated 11.11.2012. The private owners may create problem at any time for the residents and in that case there would be no egress and ingress for the project. After execution of indemnity bond, if the opposite party stopped payment of rent and the private owners block the road, then ingress and egress will be totally blocked and the home buyers will become remedy-less. These roads are still not fully constructed inasmuch as one road is constructed up to the project and not in other side and other road is not constructed. Being private road, it has to be constructed by the opposite party as per their representation. It amounts to unfair trade practice inasmuch as private roads have been represented as sector roads, which is usually constructed by Urban Development Authority.
ORDER
In view of the aforesaid discussions, the complaint is partly allowed with cost of Rs.200000/- (Rupees Two Lacs only). The opposite party is directed to acquire private land of road through Haryana Urban Development Authority as early as possible not later than six months from the date of this judgment. The opposite party shall complete construction of both the roads in both sides within six months. The complainant may take possession after deposit of balance amount. If the opposite party fails to acquire land of the road and construct both the roads within six months, it shall pay penalty of Rs.one lacs per month to the complainant, after expiry of six months till acquisition of the land and construction of the road.