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Judgment
V.K. Jain, Presiding Member
The complainants booked a residential flat with the opposite party in a project namely "Prateek Edifice", which the OP was to develop in Sector 107 of Noida on the land allotted by Noida Authority. Unit No. F-212 in Tower F of the project was allotted to the complainants on 27.11.2012 for a total consideration of Rs.1,97,68,637/-. As per clause-43 of the terms and conditions of allotment, the possession was proposed to be delivered to the complainants in December, 2016 though a grace period of five months was also available to the OP for this purpose. Even after taking benefit of the grace period, the OP was required to deliver possession by 31.5.2017. Since possession as not delivered to them even by May, 2017, despite they having paid Rs.1,86,24,859/- to the OP, the complainants approached this Commission seeking possession of the allotted unit, with compensation etc.
The complaint was resisted by the OP, which admitted the allotment made to the complainants as well as the payment received from them. It was inter-alia stated in the written version filed by the OP that the a Writ Petition being WP-66604 of 2009 was filed by some land owners whose land had been acquired by the Government, challenging the acquisition of their land. The Writ Petition was dismissed by the High Court but was allowed by the Hon'ble Supreme Court. Thereafter, some more writ petitions were filed in Allahabad High Court. Towards end of July, 2014, Noida banned the construction in the above referred project, on account of some misunderstanding. The misunderstanding on the part of the Noida was that they were under an impression that the part of the land of the aforesaid project was covered under the stay order passed by Allahabad High Court, whereas in fact, no part of the land of the said project was actually covered under the said stay order. This, according to the OP, had prevented a full-fledged construction on the site from July, 2014 to July, 2016. This is also the case of the OP that in the event of delay in delivery of possession, the allottee is entitled only to the agreed compensation of Rs.5/- per sq. ft. of the area as per Clause, 46 of the terms and conditions of the allotment. It is also stated in the written version that the complainants were all along aware about the aforesaid developments and they were given an option vide email dated 27.7.2014 to pull out of the project. It is however, an admitted position that the complainants were offered refund only of the principal amount and no interest was offered to them.
The possession of the allotted flat has been delivered to the complainants during pendency of this complaint, pursuant to the offer made on 05.11.2018. The possession was taken on 02.3.2019.
The main question which needs adjudication in this complaint is as to whether the complainants are entitle to any compensation for the delay in offer of possession of the allotted flat to them and if so, to what compensation they are entitled.
It is evident from a careful consideration of the written version that this is not the case of the OP that it had altogether stopped construction on this project pursuant to the letter which it received from Noida Authority, requiring it to stop construction in the aforesaid project. The case of the OP is that the construction had slowed down during the period from July, 2014 to July, 2016. I fail to appreciate how the direction issued by Noida Authority on 24.7.2014 could have slowed down the pace of construction. If the OP was seeking to comply with the said direction, it would have altogether stopped the construction in the project till the order stopping construction came to be recalled by the Noida Authority. The OP did not stop the construction, obviously because it was the case of the OP that no part of the land of the above referred project was covered under the stay order passed by the Allahabad High Court. This is evident from the representation which the OP had made to Noida Authority in this regard. Therefore, it cannot be said that the letter issued by the Noida Authority had resulted in delaying the construction of the flats in this project.
Moreover, during the period from July, 2014 to July, 2016, the OP continued to collect the construction linked payments from the complainants, without any deductions from the amount of the installments, which were payable during the aforesaid period. This is also an indicator that the construction had continued during the period from July, 2014 to July, 2016 and that is why the OP continued to demand and accept the installments from the allottees during the aforesaid period. No other justification for the delay in offer of possession having been given by the OP, I have no hesitation in holding that the OP has failed to prove that the construction was delayed on account of the reasons beyond its control.
Though, the complainants have also claimed refund of the parking charges, the learned counsel for the complainants, on instructions from the complainant No.2 Saurabh Sindwaani states that the said prayer is not being pressed by the complainants.
The complainants have also disputed the demand raised by the OP on account of the payment of enhanced compensation to the farmers. The learned counsel for the OP has not been able to draw my attention to any term of the allotment letter, which entitles the OP to charge the said enhanced compensation from the complainants. It is also pointed out by the learned counsel for the complainants that a Full Bench of Allahabad High Court had directed payment of enhanced compensation to the farmers vide its order dated 21.10.2011 whereas, allotment letters to the complainants was issued much later on 27.11.2012. The OP therefore, must have factored the aforesaid additional compensation while fixing the price of the apartment.
The learned counsel for the OP relies upon Clause 21 of the terms and conditions of allotment in support of the demand on account of payment of enhanced compensation to the farmers. The said clause, to the extent it is relevant, reads as under:
SERVICE TAX, CESS PROPERTY TAX ETC.: The Allottee agrees to pay promptly in addition to the consideration, the applicable Service Tax, Cess etc. levied/to be levied by the Government on services undertaken/to be undertaken by the Promoter while constructing or developing the said Unit/Complex. The Allottee further agrees to pay directly or if paid by the Promoter then reimburse to the Promoter on demand any Govt. levies, Property Taxes, other charges etc. leviable in future on the said Land and/or Project developed/constructed on the said Land, as the case may be, as assessable/applicable in respect of the said Unit and the same shall be borne and paid by the Allottee in proportion to the area of the said Unit to the area of all the units as determined by the Promoter. If such charges are increased/made applicable (with retrospective effect) after the Indenture of Conveyance has been executed then such charges shall be treated as unpaid sale price of the said Unit and the Promoter shall have the first charge/lien on the said Unit for recovery of such charges from the Allottee. Further, any additional expenses borne by the Promoter for any reason for Promoter to the Allottee of the same, the Allottee shall make prompt and due paymjent of such additional sums within 15 days of such demand by the Promoter.
In my opinion, the additional compensation to the farmers cannot be construed as any Government levy, property tax or other charge within the meaning of Clause 21 of the terms and conditions of the allotment. In any case, the High Court having already passed an order for payment of additional compensation to the farmers on 21.10.2011, the builder knew it very well that it may have to pay additional compensation if the said order was upheld by the Hon'ble Supreme Court in an appeal against the said order. Therefore, the said order must necessarily have been taken into consideration before fixing the price, and that is why there was no independent clause, entitling the builder to recover the additional compensation if paid to the farmers, from the allottees. The learned counsel for the builder submits that the High Court passed an order on 11.07.2016 in several Writ Petitions directing payment of additional compensation though the said order was based upon the earlier decision of the same High Court in Gajraj Singh Vs. State of U.P. passed on 21.10.2011 and therefore, the demand cannot be said to have been factored in by the builder while fixing price of the flats. I however, find myself unable to accept the contention. A perusal of the demand letter issued by NOIDA Authority to the builder on 25.05.2017 clearly refers to the order of the High Court dated 21.10.2011. There is no reference in this demand letter to the subsequent decision dated 11.07.2016. Therefore, it is evident that the demand was based upon the decision of the Hon'ble High Court dated 21.10.2011 and not on the subsequent decision dated 11.07.2016.
For the reasons stated hereinabove, the complaint is disposed of with the following directions:
The OP shall pay compensation to the complainant, in the form of simple interest @ 8% per annum w.e.f. 01.06.2017 till 05.11.2018 when the possession was offered.
The OP shall pay a sum of Rs.25,000/- as the cost of litigation to the complainants.
The amount which the complainants had deposited with this Commission pursuant to an interim order passed by this Commission, shall be refunded to the complainants alongwith interest which may have accrued on that amount. The balance amount, if any, payable to the complainants by the OP, after adjusting the balance sale price of the flat, shall be paid within three months from today.