In Prerna Dewan Vs. IREO Fiveriver, the Opposite Party has stated that possession of the plot, in question, could not be offered to the complainant, within the period stipulated in the Agreement for want of development work at the site, on account of the reasons beyond its control i.e. on account of force majeure circumstances like delay in sanction of layout plans by the Competent Authorities; delay in grant of NOC from the Irrigation Department; delay in clearance and delayed grant of licence for additional land measuring 10.594 acres plus 18.343 acres, by the Competent Authorities, as the area was situated in a squatted small pockets; delay in approvals for environment clearance by the Competent Authorities; and also stay on construction on the land, in question, granted by the Hon’ble Supreme Court of India.
The State Consumer Dispute Resolution Commission rejected the above contention by stating It was the bounden duty of the opposite party, to get approved the final layout plans, obtain the requisite permissions or sanctions, in respect of the project, in question before launching the project, and only, thereafter, accept booking amount from the customers or recover/ accept the consideration money from the purchaser of the flats/plots. The complainant including other allottees cannot be penalized for the delay in the aforesaid sanction of layout plans. If the opposite party chose to accept booking, on the basis of provisional sanction of the layout plan, by the Competent Authorities, it is to blame to only itself, for the delay, and not the purchasers of units. The purchaser of a plot, who had nothing to do with the sanction of the layout plan, by the Competent Authorities, cannot be penalized, by postponing the possession or registration of the plot. Similar view was taken by the National Commission in a case titled as M/s. Narne Constructions Pvt. Ltd. Vs. Dr. Devendra Sharma & 4 Ors., Revision Petition No. 4620 of 2013, decided on 17 th Dec 2015. It is a known fact that delay occurs in obtaining various permissions from different Governmental Authorities, and this fact is well-known to the builder(s). The time normally taken, in getting such permissions, could have been contemplated by the builder, before issuing the brochure/executing agreement. It is an unfair trade practice, if the builder, without any planning and without obtaining any effective permissions/sanctions/licence to allot plot or to construct building/apartments, invites offers and collects money from the buyers.
The Commission referred to the judgment of the National Commission in Kamal Sood Vs. DLF Universal Ltd, a similar plea regarding non-grant of various sanctions, approvals and certificates in respect of the DLF project, by the Government concerned, resulting into delay in delivery of possession of the unit, was raised by the Builder. However, the National Commission in that case, while brushing aside the said plea of the builder, observed and held as under:-
“The main questions which require consideration in the appeal are—
(i) Can a builder give alluring advertisement promising delivery of possession of the constructed building/flat to the purchaser/ consumer within the stipulated time, and, subsequently, on his failure, turn around and contend that as governmental permissions, such as, approval of zoning plan, layout plan and schematic building plan, were not given, the delay in construction should not be the ground for grant of compensation to the consumer? And,
(ii) Secondly, whether the consumer should suffer by paying escalation cost due to such delay?
2. In our view, it is unfair trade practice on the part of the builder to collect money from the prospective buyers without obtaining the required permissions such as zoning plan, layout plan and schematic building plan. It is the duty of the builder to obtain the requisite permissions or sanctions such as sanction for construction, etc., in the first instance, and, thereafter, recover the consideration money from the purchaser of the flat/buildings.
3. Secondly, in such a case, if there is any express promise that the premises would be delivered within the stipulated time, and, if not done so, escalation cost is required to be borne by the builder.”
27. The principle of law, laid down in the aforesaid case, is fully applicable to be present case. In this view of the matter, the plea of the opposite party, to this effect, also stands rejected.
28. So far as the plea regarding grant of stay by the Hon’ble Supreme Court of India, in a case of Ravinder Singh and Ors. Vs. State of Haryana and Others, SLP 21786-21788 of 2010, is concerned, it may be stated here that as is evident from letters dated 30.4.2012 (Annexure OP/A-13) and 30.4.2012 (Annexure OP/A-14),the said stay was granted on 19.04.2012 and was vacated on 12.12.2012.
Otherwise also, the said stay was not specific to the opposite party. Directions were issued to the Government only, not to undertake construction on the land in question. At the maximum taking a stay order, as an order to the opposite party/builder also, benefit of only about 08 months period (stay granted on 19.04.2012 and vacated on 12.12.2012) can be given and not beyond that. It was not clarified by the opposite party, as to what stopped it to start construction and development work before 19.04.2012 and, thereafter, from 12.12.2012, the date when stay aforesaid was vacated. At the same time, as has been held above, if the opposite party did not take requisite approvals/sanctions, from the Competent Authorities, before launching the project, in question, it cannot take shelter under the force majeure clause, to defeat the claim of the complainant.
29. The pleas taken by the opposite party, claiming force majeure circumstances, referred to above, also deserve rejection, in the face of case titled as Ramesh Chander and another Vs. M/s IREO Fiveriver Private Limited, CC No.99 of 2014, decided on 29.04.2015, qua this very project, decided by the State Commission, Haryana, Panchkula . In that case also, exactly similar excuses were given by the opposite party, for not starting development at the site and non-delivery of possession of the unit, to the purchasers, which were rejected by the State Commission, Haryana, Panchkula, by observing as under:- “It is not disputed that the builder floated the project and they were bound to obtain all the permissions before they invite applications from public. The builder cannot raise plea that for want of certain clearances, the possession of the plot could not be delivered. When the builder invited the applications and collected huge amount from the public, they cannot delay the allotment/possession of the plot for awaiting clearances. Thus, delay/breach, if any, was on the part of the builder. The builder has not even remotely alleged any default on the part of the complainants”
30. First Appeal No.473 of 2015 filed against that order by the opposite party before the National Commission, New Delhi, was got dismissed as withdrawn, vide order dated 22.07.2015.
31. Even otherwise, there is nothing on record, to show that at any stage, when the project was going to be delayed, difficulties now propagated were brought to the notice of the purchasers. Clearly, the matter was not effectively taken up by the opposite party, with the Government Authorities, to expedite the sanctions etc., so that construction/ development at the project could be started. It is therefore held that by not starting the development and construction work at the site and also by not handing over possession of the unit, to the complainant by the stipulated date, mentioned in the Agreement, and even as on today, there was a material violation, on the part of the opposite party, which act amounted to deficiency in providing service and adoption of unfair trade practice.”
Thus, the plea of force majeure is of no help to the Opposite Party and the same stands rejected.
25. Deficiency in service and indulgence into unfair trade practice on the part of the Opposite Party is, thus, clearly evident. The complainant is entitled to refund of the deposited amount with interest.
The State Consumer Dispute Resolution Commission rejected the above contention by stating It was the bounden duty of the opposite party, to get approved the final layout plans, obtain the requisite permissions or sanctions, in respect of the project, in question before launching the project, and only, thereafter, accept booking amount from the customers or recover/ accept the consideration money from the purchaser of the flats/plots. The complainant including other allottees cannot be penalized for the delay in the aforesaid sanction of layout plans. If the opposite party chose to accept booking, on the basis of provisional sanction of the layout plan, by the Competent Authorities, it is to blame to only itself, for the delay, and not the purchasers of units. The purchaser of a plot, who had nothing to do with the sanction of the layout plan, by the Competent Authorities, cannot be penalized, by postponing the possession or registration of the plot. Similar view was taken by the National Commission in a case titled as M/s. Narne Constructions Pvt. Ltd. Vs. Dr. Devendra Sharma & 4 Ors., Revision Petition No. 4620 of 2013, decided on 17 th Dec 2015. It is a known fact that delay occurs in obtaining various permissions from different Governmental Authorities, and this fact is well-known to the builder(s). The time normally taken, in getting such permissions, could have been contemplated by the builder, before issuing the brochure/executing agreement. It is an unfair trade practice, if the builder, without any planning and without obtaining any effective permissions/sanctions/licence to allot plot or to construct building/apartments, invites offers and collects money from the buyers.
The Commission referred to the judgment of the National Commission in Kamal Sood Vs. DLF Universal Ltd, a similar plea regarding non-grant of various sanctions, approvals and certificates in respect of the DLF project, by the Government concerned, resulting into delay in delivery of possession of the unit, was raised by the Builder. However, the National Commission in that case, while brushing aside the said plea of the builder, observed and held as under:-
“The main questions which require consideration in the appeal are—
(i) Can a builder give alluring advertisement promising delivery of possession of the constructed building/flat to the purchaser/ consumer within the stipulated time, and, subsequently, on his failure, turn around and contend that as governmental permissions, such as, approval of zoning plan, layout plan and schematic building plan, were not given, the delay in construction should not be the ground for grant of compensation to the consumer? And,
(ii) Secondly, whether the consumer should suffer by paying escalation cost due to such delay?
2. In our view, it is unfair trade practice on the part of the builder to collect money from the prospective buyers without obtaining the required permissions such as zoning plan, layout plan and schematic building plan. It is the duty of the builder to obtain the requisite permissions or sanctions such as sanction for construction, etc., in the first instance, and, thereafter, recover the consideration money from the purchaser of the flat/buildings.
3. Secondly, in such a case, if there is any express promise that the premises would be delivered within the stipulated time, and, if not done so, escalation cost is required to be borne by the builder.”
27. The principle of law, laid down in the aforesaid case, is fully applicable to be present case. In this view of the matter, the plea of the opposite party, to this effect, also stands rejected.
28. So far as the plea regarding grant of stay by the Hon’ble Supreme Court of India, in a case of Ravinder Singh and Ors. Vs. State of Haryana and Others, SLP 21786-21788 of 2010, is concerned, it may be stated here that as is evident from letters dated 30.4.2012 (Annexure OP/A-13) and 30.4.2012 (Annexure OP/A-14),the said stay was granted on 19.04.2012 and was vacated on 12.12.2012.
Otherwise also, the said stay was not specific to the opposite party. Directions were issued to the Government only, not to undertake construction on the land in question. At the maximum taking a stay order, as an order to the opposite party/builder also, benefit of only about 08 months period (stay granted on 19.04.2012 and vacated on 12.12.2012) can be given and not beyond that. It was not clarified by the opposite party, as to what stopped it to start construction and development work before 19.04.2012 and, thereafter, from 12.12.2012, the date when stay aforesaid was vacated. At the same time, as has been held above, if the opposite party did not take requisite approvals/sanctions, from the Competent Authorities, before launching the project, in question, it cannot take shelter under the force majeure clause, to defeat the claim of the complainant.
29. The pleas taken by the opposite party, claiming force majeure circumstances, referred to above, also deserve rejection, in the face of case titled as Ramesh Chander and another Vs. M/s IREO Fiveriver Private Limited, CC No.99 of 2014, decided on 29.04.2015, qua this very project, decided by the State Commission, Haryana, Panchkula . In that case also, exactly similar excuses were given by the opposite party, for not starting development at the site and non-delivery of possession of the unit, to the purchasers, which were rejected by the State Commission, Haryana, Panchkula, by observing as under:- “It is not disputed that the builder floated the project and they were bound to obtain all the permissions before they invite applications from public. The builder cannot raise plea that for want of certain clearances, the possession of the plot could not be delivered. When the builder invited the applications and collected huge amount from the public, they cannot delay the allotment/possession of the plot for awaiting clearances. Thus, delay/breach, if any, was on the part of the builder. The builder has not even remotely alleged any default on the part of the complainants”
30. First Appeal No.473 of 2015 filed against that order by the opposite party before the National Commission, New Delhi, was got dismissed as withdrawn, vide order dated 22.07.2015.
31. Even otherwise, there is nothing on record, to show that at any stage, when the project was going to be delayed, difficulties now propagated were brought to the notice of the purchasers. Clearly, the matter was not effectively taken up by the opposite party, with the Government Authorities, to expedite the sanctions etc., so that construction/ development at the project could be started. It is therefore held that by not starting the development and construction work at the site and also by not handing over possession of the unit, to the complainant by the stipulated date, mentioned in the Agreement, and even as on today, there was a material violation, on the part of the opposite party, which act amounted to deficiency in providing service and adoption of unfair trade practice.”
Thus, the plea of force majeure is of no help to the Opposite Party and the same stands rejected.
25. Deficiency in service and indulgence into unfair trade practice on the part of the Opposite Party is, thus, clearly evident. The complainant is entitled to refund of the deposited amount with interest.
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