IN FA NO. 1340 OF 2016 For the Appellant(s) : Mr. Sudhir K. Makkar, Sr. Advocate with Mr. Manav Kumar, Advocate For the Respondent(s) Mr. Rajiv Nayar, Sr. Advocate Ms. Seema Sundd, Advocate Ms. Kanika Agnihotri, Advocate Mr. Saurabh Kumar, Advocate Ms. Shreyansi Goel, Advocate IN ALL OTHER FIRST APPEALS For the Appellant(s) : Mr. Rajiv Nayar, Sr. Advocate Ms. Seema Sundd, Advocate Ms. Kanika Agnihotri, Advocate Mr. Saurabh Kumar, Advocate Ms. Shreyansi Goel, Advocate Mr. Sudhir K. Makkar, Sr. Advocate Mr. Sandeep Bhardwaj, Advocate Mr. Anant Agarwal, Advocate Mr. Natansh Kr. Pal, for ICICI Bank Mr. Savinder Singh Gill, Advocate -10- For the Respondent(s) Mr. Manav Kumar, Advocate Mr. Parvez Chugh, In person with Mr. Nikhil Jain, Advocate Mr. Amarjeet Singh, Advocate Mr. Narender Yadav, Advocate Mr. Lakhbir Singh, Advocate Mr. Anand V. Khatri, Advocate Ms. Surbhi, Advocate Mr. Chinmay Sejwal, Advocate JUSTICE V.K. JAIN, PRESIDING MEMBER These are 19 appeals, arising out of the different orders passed by the State Commission, UT Chandigarh. 18 appeals having been filed by DLF Universal Limited and one appeal has been filed by one of the allottees namely Vineet Kumar & Anr., 18 complaints were instituted before the State Commission, by the alllottees of residential floors in a project namely Hyde Park Terraces, which DLF Limited was to develop in New Chandigarh, Mullanpur. Admittedly, as per the schedule agreed between the parties, the possession of the residential floors was to be delivered within thirty months from the date of application. Except in one case, i.e. the complaint subject matter of the FA/1328/2016 filed by Vineet Kumar, where the consumer -11- complaint was instituted by Vineet Kumar, there was delay in offering possession of the allotted residential floors to the concerned allottees. Being aggrieved, they approached the concerned State commission by way of separate consumer complaints. In 17 consumer complaints, the allottees sought refund of the amount paid by them to the developer, along with compensation etc. whereas in one case, i.e. the complaint subject matter of FA/300/2017 and instituted by Darshan Malik & Anr., possession was sought with compensation.

2. The complaints were resisted by the developer inter-alia on the ground that the possession was delayed on account of reasons beyond the control of the developer and there was no deficiency on the part of the developer in rendering services to the allottees.

3. In 17 consumer complaints, the State Commission directed refund of the amount paid by the allottees to the developer, along with compensation, whereas in one case, i.e. the complaint instituted by Darshan Malik and Anr., the State Commission directed execution of the conveyance deed in favour of the allottees and payment of compensation, the possession having already been taken by them.

4. Being aggrieved from the order passed by the State Commission, the developer DLF Limited is before this Commission by way of twenty separate appeals, whereas one appeal being FA No. 1340 of 2016 has been filed by the allottee Vineet Kumar, who is not satisfied with the compensation awarded by the State Commission.

5. The primary issue involved in these appeals is as to whether the complainants except Darshan Malik are entitled to refund of the amount paid by them to the developer, along with compensation, despite possession of the allotted floor having already been offered to them or they must necessarily accept possession of the allotted floor with a fair and just compensation.

6. When these appeals came up for hearing on 25.10.2017, the following order was passed by this Commission:

It has been argued on behalf of some of the complainants that all the facilities and amenities necessary for a full and efficient use and enjoyment of the flats offered to them were not available at the time the possession was offered to them. The aforesaid contention is disputed by the appellant. The complainants have also contended that some facilities and amenities have been provided by the appellant after offering possession to them. In order to return a finding of the aforesaid contentious issue, it becomes necessary to appoint a third party architect to inspect the flats offered to the complainants and the facilities and amenities available for the said flats, in order to report whether all such facilities and amenities as are essentially required for a full and efficient use and enjoyment of the said flats for residential purpose are available or not. It also becomes necessary to require the appellant to disclose on oath the facilities and amenities if any, provided by it after offering possession to the complainants. The following directions are therefore, issued in the matters: The Principal/Director, Chandigarh College of Architecture shall nominate a senior architect of the said college to inspect the flats offered to the complainants as well as the facilities and amenities available in respect of the aforesaid flats and report whether all the facilities and amenities which are necessarily required for a full and efficient use and enjoyment of the said flats for residential purposes are presently available or not.The -12- deficient amenities/facilities, if any, shall be reported by the aforesaid architect to this Commission. The appellant shall file an affidavit of one of its Directors, disclosing therein the facilities and/or amenities provided in respect of the flats offered to the complainants, after issuance of the last letter of possession i.e. after 28.09.2016. The inspection shall be carried out in the presence of the parties after due notice to them in writing through counsel.

7. Thereafter, a letter was received from the Principal, Chandigarh College of Architecture, informing this Commission that their core competence is to impart teaching and training of students of Architecture and that Architects were available in the office of Chandigarh Housing Board and Department of Urban Planning and Architectures in Chandigarh Administration. It was therefore, directed that a senior Architect to be nominated by the Chairman of Chandigarh Housing Board, shall carry out inspection in terms of the order of this Commission dated 25.10.2017. The inspection was carried out accordingly in the presence of the parties and a report was filed with this Commission. The copy of the report was made available to the parties, along with copies of its Annexures, before hearing them on merits.

8. The following is the conclusion drawn by the architect in his report dated 9.2.2018:-

In view of the undersigned it is concluded that the project is habitable and the amenities within the complex are likely to come up in good time as happens in most of the projects including neighbourhoods developed by Chandigarh Housing Board and Chandigarh Administration.

9. On a perusal of the report of the Architect, it was found that several facilities and amenities mentioned in his report were available at the time inspection was carried by him. However, there was dispute between the parties as to when those facilities were provided. The developer DLF Ltd. was, therefore, directed to file an affidavit of an officer, not below the rank of Vice President, stating therein as to which of the facilities and amenities found available at the time of inspection had been provided before offering possession to the complainants and which facilities were provided at a later date. In respect of the facilities provided after offering possession, the developer was also directed to disclose the date on which the said facilities had become available for use. In his affidavit dated 29.1.2019, Mr. Rakesh Kerwell, Regional Director (N) of the developer has inter-alia stated as under:

3. That at the time of offer of possession, i.e. 15.2.2016, to the complainants, all such facilities and amenities that are essentially required for efficient use of the said floors / property for residential purpose were available. I say that all the basic facilities and / or amenities required as per the competent authority for obtaining the Occupation Certificate / Partial Completion were already available.

4. That the following amenities / facilities mentioned in the report of the Local Commissioner dated 09.2.2018 were in place / existing at the time of offer of possession

i.e. 15.2.2016 to the respondents: Environmental Clearance -13- Electricity Connection and Supply Water Connection and supply Storm Water Drainage Street Lights Sewage Treatment Plant Fire Hydrant Underground Cables Green Belts Rain Water Harvesting System Internal Service / Road & Approach Roads Sewerage Facilities

5. That pursuant to offering of possession, the community centre is also now available for use, and Agreement with third parties for commercial sites, utilities, and educational facilities have been entered into by the Appellant Company.

10. Admittedly, partial Occupancy Certificate had already been obtained by the developer before possession was offered to the concerned allottees. The copies of the said partial Occupancy Certificates are annexed to the report of the Architect. In view of the said partial Completion Certificates, the Architect rightly inferred that services such as sewerage, storm water and infrastructure were functional. Though a non-functional water hydrant, some broken and loose cable were shown by the allottees to the Architect, he was of the opinion that the same was a matter of maintenance. Thus, the requisite sewerage, storm water, infrastructure was found available at the time of inspection and as per the affidavit of Mr. Rakesh Kerwell, the said infrastructure was in place at the time possession was offered on 15.2.2016. Since it is the developer, who knows best as to when the said infrastructure was actually provided and there is no credible evidence to controvert the affidavit filed by Mr. Rakesh Kerwell in this regard, I have no hesitation in holding that the said infrastructure had been provided before offering possession to the allottees.

11. It was found by the architect that some internal roads were 40 ft. wide, instead of 60 ft. wide as had been promised in the Brochure issued by the developer. Since the developer ought to have provided internal roads of not less than 60 ft. width, it would be a deficiency in service if some of the internal roads are 40 ft. as is reported by the Architect. However, since I presume that the width of the internal roads was as per the approved plans, the reduction in the width of some of them, in my opinion, does not come in the way of the allottees taking possession of the flats allotted to them, though they can have such remedy as may be available to them in law against the opposite party including seeking compensation, for providing 40 ft. wide internal roads as against the 60 ft. wide internal roads promised in the brochure. -14-

12. As regards the rain harvesting system, the Architect on the basis of the partial completion certificate, inferred that the said system was functional. I see no reason to reject the said inference drawn by the Architect, on the basis of a public document. As regards, the street light, the Architect found that the electrical poles were provided along the road with underground cables. In view of the partial completion certificate, he inferred that the said poles were functional. The complainants did not show non-functional electrical poles to the Architect. In any case, if one or more poles are not functioning that would be a matter of maintenance and would not be a ground for refusing the possession of the allotted flats.

13. As regards the water supply, the Architect, on the basis of the Occupancy Certificate, accepted the statement of the developer that the water supply was operational. No evidence was produced before the Architect to rebut the said statement of the developer.

14. One of the complaints made to the Architect was that overhead cables had been provided instead of underground cables. During inspection, he found that cabling was underground except in one location, where a cable was running on surface which according to the Architect appeared to be on account of some temporary maintenance issue. The requisite environmental clearance was found to have been obtained by the developer.

15. The Architect found that though the retail and commercial sites had been developed and sold, the said facilities were not functional. The complainants have not drawn my attention to any clause of the Buyers Agreement which obligated the developer to make these facilities functional and operational, before offering possession to the allottees. Though a developer, in my opinion, cannot get away with his obligation to make all these facilities functional within a reasonable time period, the flats/houses can, in law, be occupied even before such facilities become functional. Moreover, the Architect found that the project in question is in close proximity to inhabited areas of sizeable scale having operational retail areas, chemists, other shopping needs apart from operational dispensary, nursing home, school etc. due to good connectivity through road. However, the complainants would be entitled to avail such remedy as may be available to them in law if the said retail and commercial facilities have not been made operational and functional within a reasonable time, though they are not justified in refusing to take possession on the ground that the said facilities are not functional. The question as to whether there is unreasonable delay on the part of the developer in providing those facilities or not, would be outside the scope of the consumer complaints subject matter of these appeals since the allottees, in my view, could reasonably have occupied their respective flats even before the said retail and commercial facilities such as ATM, veg and grocery shops, dry cleaning etc. become functional.

16. It was found by the Architect that though the sites for educational facilities have been developed and sold, construction by the buyers of the said sites has not commenced. In my opinion, though the developer cannot get out of his obligation to make the educational facilities available within a reasonable time, the complainants were not justified in refusing possession of the allotted flats on account of the said educational facilities not being functional. They, of course would be entitled to avail such remedy, as may be open to them in law, on account of unreasonable delay on the part of the developer in making the said educational facilities functional. -15-

17. As regards the community centre, the Architect found that the construction of the club building was complete. It has also come in the affidavit of Sh. Rakesh Kerwell that the community centre is now available for use. 18, As regards green space, the Architect found that as per the partial completion certificate, the green area as per the approved layout plan has been provided.

19. As regards the medical facilities, though the same were not functional, the developer has earmarked the site for dispensary which has also been developed and sold by them. Again the non-availability of the medical facilities, in my opinion, does not come in the way of the allottees taking possession of the allotted flats though they can avail such remedy as may be open to them in law for any unreasonable delay on the part of the developer in not making the medical facilities functional. I am unable to accept the contention of the developer that their obligation in respect of the retail and commercial, educational facilities and medical facilities ends with development and sale of the sites for the said purposes. It is for the developer to ensure that all such facilities become fully functional within a reasonable time.

20. As regards the complaint in respect of some fittings, fixtures and leakages, the Architect noted that the toilet fixtures of the specified or equivalent brand had been provided and the builder would remove any leakage in the flat or defect in the flooring if pointed out by the concerned allottee. Though the complainants claimed that grills had not been provided to the window, no obligation on the part of the developer to provide grills to the window was pointed out.

21. As regards the complaint that it was not a gated community, the developer pointed out that as per the approved plan, there was no provision for gate/boundary wall. The complainants could not show any obligation on the part of the developer to provide gate/boundary wall.

22. It was noted by the Architect that the complainants could not show any green belt lacking proper maintenance. He, however, found no bench or any street furniture in the green belt. Assuming that the benches and street furniture had not been provided in the green area that does not come in the way of the allottees taking possession of the allotted flats though they can always insist upon the developer providing the requisite benches and street furniture if that had been agreed between the parties and in case of default, they can avail such remedy as may be open to them against the developer in this regard.

23. In view of the report of the Architect, I hold that since all such amenities and facilities which were essentially required for use and enjoyment of the flats were available at the time the possession was offered, the allottees were not justified in refusing possession on the ground that the requisite facilities and amenities or infrastructure had not been provided by the developer. As regards those facilities which though obligatory but were not essential for the use and enjoyment of the flats, the allottees can have such remedy against the developer as may be open to them in law on account of any unreasonable delay on the part of the developer in making the said facilities functional in all respects.

24. It is true that except in one case, there was delay on the part of the developer in offering possession of the allotted flats to the concerned allottees. The delay was one year or less in 16 matters whereas it was more than one year in a few matters. Out of 20 cases subject matter of these appeals, the possession in 17 matters had been offered before the consumer complaints were -16- instituted by the concerned allottees. As noted earlier in one case, i.e., the complaint filed by Vineet Kumar, there was no delay. The question which arises for consideration is whether the allottees were justified in refusing possession solely on account of such a delay, despite the fact that the basis facilities and amenities essentially required for the use and enjoyment of the allottees flats were available at the time the possession was offered. The project in which flats were booked by the complainant is a large project. Some delays in a large project of this nature are understandable and sometimes inevitable. In fact there is also a change in the judicial approach, in the cases where the possession is offered either before or during the pendency of the complaint. It is only where the delay is unreasonable or the circumstances of the allottee have materially changed in the meanwhile that the allottee may be justified in refusing to accept the possession and seek refund of the amount paid by him to the developer alongwith compensation etc. As noted earlier, the delay in 16 matters was not more than one year and there was no delay in one matter. Even in the remaining three matters, the delay, though more than one year, was not so unreasonable that it would justify the offer of possession given by the developer, even if a fair and just compensation is paid to the allottee for the delay in making the said offer. It has to be kept in mind that a bonafide purchaser books a flat for the purpose of having a shelter over his head. In the case of booking of a flat, the house is constructed for him by the developer. The refund to an allottee whether with or without compensation is also directed with a view to enable him to purchase an alternative flat, in lieu of the flat booked by him. Therefore, ordinarily there will be no justification for not accepting the possession except in a case where the delay is very substantial and cannot at all be justified by the developer, or there is material change in the circumstances of the allottee, which would justify refund to him.

25. As far as those 16 allottees to whom possession had been offered before institution of the complaints are concerned, they, in my opinion, ought to have accepted the possession reserving their right to seek compensation from the developer for the delay in offering possession of the allotted flats to them. Even the allottees in whose case the possession was offered after institution of the complaint, ought to have accepted the possession and claimed only the compensation. In one case, the complaint instituted by Ankur Mujral, the possession had not been offered even by 30.8.2016 when the State Commission directed refund of the amount paid by the allottee to the developer along with compensation etc. though the same ought to have been offered by 16.2.2015. This presumably happened because the complaint was disposed of within about two months of its institution. The developer claims to have obtained the requisite occupancy certificate for this flat as well.

26. In the complaint, subject matter of FA/1416/2016, the respondent / complainant stated during the course of arguments that he has already purchased another house after the order of the State Commission. The said purchase, in my opinion, amounts to material change in the circumstances of the said complainant. He having already purchased another house, it will not be fair and reasonable to compel him to accept possession of the flat, which the appellant had allotted to him.

27. In all the cases other than FA/1416/2016, the complainants, in my opinion, should accept possession of the flat allotted to them and in the facts and circumstances of the case, as noted hereinabove, refund of the amount paid by them to the developer, was not justified.

28. For the reasons stated hereinabove, all the appeals and connected consumer complaints are disposed of with the following directions: -17-

(i) In FA/1416/2016, the appellant DLF Universal Limited shall refund the entire principal amount received from the complainant, along with compensation in the form of simple interest @ 10% per annum, from the date of each payment till the date on which the possession was offered to him.

(ii) In the matters, other than FA/1416/2016, the developer DLF Universal Limited shall deliver possession of the allotted flat to the concerned allottee within one month from today, along with compensation in the form of simple interest @ 8% per annum with effect from the committed date of possession till the date on which the possession was actually offered to the allottee.

(iii) The compensation shall be paid on the entire amount, which the concerned allottee had paid to the developer on or before the date committed for the delivery of possession. The developer DLF Universal Limited shall pay a sum of Rs.25,000/- as the cost of litigation in each consumer complaint. The balance amount, if any, due from an allottee shall be adjusted out of the compensation payable to him in terms of this order. No interest for delayed payment on such an amount, shall be payable by the allottee after the date on which the possession was offered. This is so, since I am not awarding any compensation to the allottees for the period subsequent to the offer of possession. The complainant shall be at liberty to avail such remedy, as may be available to them in law, including a fresh consumer complaint seeking compensation for any unreasonable delay in making functional and operational facilities and amenities comprising retail and commercial spaces, educational facilities and medical facilities.They shall also be entitled to seek such remedy as may be available to them in law, including compensation from the developer for reducing the width of some of the internal roads to 40 ft. as against the promised width of 60 ft.If requisite benches and street furniture in the green belt were promised to the complainants but is not provided, the complainants shall also be entitled to seek such remedy as may be available to them against the developer in respect of said deficiency in rendering services to them. ......................J

V.K. JAIN PRESIDING MEMBER -18-