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Delhi HC Orders NBCC To Compensate Homebuyer For Mental Agony Over Unfulfilled Property Deal.

‘Case title: Sanjay Raghunath Piplani & Anr. Vs National Buildings Construction Corporation Delhi & anr

Case no.: W.P.(C) NO. 824 OF 2023

Dated on: 8th May 2024

Quorum: Justice Hon’ble Mr. Justice Subramonium Prasad

FACTS OF THE CASE

The present Writ Petition, being W.P.(C) 824/2023, has been filed by the Petitioner, a flat owner in the project “NBCC Green View Apartments”, launched by Respondent No.1 in the year 2012. The principle grievance of the Petitioner is that despite paying the entire sales cost of the flat, the flat was never handed over to the Petitioner. It is also mentioned that neither an alternate flat has been given to the Petitioner nor a refund, with appropriate interest, was offered by Respondent No.1. On June 2012, launched a group housing residential project under the name of NBCC Green View Apartments that was to be constructed in Section 37, Gurugram, Haryana. In response to the said project a large number of applicants, including the Petitioner who is a retired government employee, applied for allotment of apartments specially earmarked for government servants. The Petitioner booked an apartment in the aforementioned project on 23.06.2012 by depositing a sum of Rs.2,08,334/- and was consequently issued an allotment letter by Respondent No.1 on 02.11.2012 for flat bearing No. C2.3. No Dues Certificate was issued to the Petitioner by the Respondent on 21.10.2020. On 30.01.2021, Respondent No.1, issued a Possession Certificate to the Petitioner through an email where the Respondent mentioned that Flat bearing No.C2.3, that was to be allotted to the Petitioner, is ready for possession with all the electrical, bathroom fittings and inventories according to the specifications agreed upon. However, physical possession of the flat allotted was never given to the Petitioner on the pretext that flat No. C2.3 was yet not complete. The Petitioner was allotted a temporary accommodation bearing Flat No. B-1202 for a period of 6-8 months until the original flat was ready according to possession conditions.

It is pertinent to mention that other residents who had already been given possession of their flats in the said project, started noticing structural defects in the buildings. Respondent No.1, subsequently, engaged structural experts from IIT Delhi to assess the structural health of the buildings. The experts from IIT Delhi recommended that due to continued deterioration in the structure, at an accelerated pace, it was in the interest of safety the residents should be evacuated at most within 2 months. Respondent No.1, consequently, issued a notice on 18.11.2021 requesting the residents of the said apartments to vacate the premises by 23.11.2021. The Petitioner herein, vide email dated 23.11.2021, gave its consent to vacate the temporary allotted flat on the condition of rent allowance and moved into a rental accommodation in Faridabad, for which NBCC remitted payment for a period of 6 months. Since the flat was not delivered to the Petitioner, even after six years of the final instalment and about 10 years after the first application money was paid and that since the Respondents were not providing any alternate accommodation to the Petitioners, the Petitioners have filed the instant writ petition.

CONTENTIONS OF THE APPELLANT

The learned Counsel for the NBCC made a submission that the Petitioner had approached the RERA in Gurgaon. He submitted that more than 250 flat buyers had already approached the NCDRC and RERA. It was also stated by the learned Counsel for the NBCC that since the Petitioner had already approached the various forums, the writ petition should not be admitted. It is stated in the reply that the writ petition ought not to have been entertained since the Petitioner has approached various forums for same relief and he cannot be permitted to do forum shopping. Reliance was also placed on Section 79 of the Real Estate (Regulation & Development) Act, 2016 which specifically bars any forum to entertain any suit or proceedings relating to the violations under the Real Estate (Regulation & Development) Act, 2016 (hereinafter referred to as the ‘RERA Act’). He states that since the Petitioner has availed of his remedies under the RERA Act and in view of the bar under Section 79 of the RERA Act, the writ petition ought not to be entertained. He states that the Respondents are not prompt in complying with the orders of this Court. It is stated that he is facing difficulties because he has spent his entire money in this house. It is also stated that the Petitioner is unable to find out a suitable accommodation for the sum of Rs.30,000/-. He is being frequently asked to vacate the premises. Resultantly, even his children’s education is suffering. He states that after the Petitioner approached this Court, he has withdrawn the complaint from the consumer forum and from the RERA. He states that the Petitioner has become so desperate that he is forced to knock door after door for getting some relief. Further submitted that the Petitioner has invested his life savings in the Respondent/NBCC thinking that the NBCC is a government undertaking and that he would not be cheated like other private builders. He, therefore, states that he does not have money to buy a new accommodation. He also states that he does not have money to get a flat on rent and that with the passage of time, the price of a property in the area has risen exponentially.

CONTENTIONS OF THE RESPONDENTS

The learned Counsel for the Respondent states that the Petitioner is guilty of forum shopping. He states that after having approached the forums under the RERA Act and under the Consumer Protection Act, the instant writ petition should not be entertained by this Court by exercising its powers under Article 226 of the Constitution of India. The Respondent places reliance under Section 79 of the RERA Act. Learned Counsel for the Respondent states that there is a bar under Section 79 of the RERA Act whereby civil courts cannot entertain any suit or proceedings in respect of the matter which falls under the jurisdiction of RERA. that the Petitioner is guilty of concealing material facts inasmuch as the Petitioners herein have impleaded themselves in the NCDRC in a petition titled as Avdesh Chandra Bhatia & Ors. (now Narinder Singh Arneja & Ors.) v. NBCC & Ors. Complaint No. CC/1128/2017. It is stated that the Petitioners have also impleaded themselves in a complaint filed before Haryana RERA.

LEGAL PROVISIONS

Section 79 of the Real Estate (Regulation & Development) Act, 2016: As per section 79 of the Act civil courts are barred from entertaining disputes (suits or proceedings) in respect of matters which the Authority or the adjudicating officer or the Appellate Tribunal is empowered under the Act to determine.

Article 226 of the Constitution of India: Every High Court shall have the powers throughout the territories in relation to which it exercised jurisdiction to issue writ or orders to any person or authority.

Article 12 of the Constitution of India: The State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.

COURT’S ANALYSIS AND JUDGEMENT

This is a classic case of extreme hardships suffered by a home buyer who has been made to run from pillar to post after having spent his entire life savings. It is unfortunate that a ‘State’ under Article 12 of the Constitution of India has raised this objection that the Petitioner is guilty of forum shopping. A helpless home buyer who has sunk his life savings has no other option but to knock door after door and hoping against hope that he would be able to get his money back. Such a home buyer like the Petitioner herein fights with his back to the wall as on the one hand he has no accommodation and no life savings as it has all been sunk into a purchasing a house which would be his shelter post retirement and on the other hand he does not have money to pay rent. Such a person faces financial crunch to ensure proper education to his children and such a situation he has no other option but to knock on the doors of various forums hoping to get relief and in such a situation the contention of the State that the person is guilty of forum shopping cannot be accepted at all. Even though it is clear that while seeking legal recourse, the Petitioner did approach various forums, by filing impleadment applications before the NCDRC besides filing a complaint before the Haryana RERA for redressal of his grievances and it is well established, in various judgements of the Apex Court, that the act of forum shopping is condemned, this Court is of the opinion that in the facts of the present case, such an act of approaching various forums stems from desperation rather than a strategic pursuit of a favourable dictat. Purchasing a house is one of the most significant investments an individual or family make in their lifetime. It often involves years of savings, meticulous planning and emotional investment. When builders of such homes fail to deliver what was promised, they shatter the trust and financial security of homebuyers and also put homebuyers in a situation where they may face immense stress, anxiety, uncertainty and ultimately be forced to navigate legal channels for seeking recourse. Compensating wronged homebuyers is not just a matter of rectifying past injustices but also about deterring future misconduct. In the present case, the Petitioner entered into the agreement way back in the year 2012. In five years, the Petitioner has pumped in over Rs.76 lakhs. A ‘No Dues Certificate’ has been given to the Petitioner. Structural defects have been found out in the construction after certain persons started occupying the flats. Petitioners and several other persons have been left in lurch and have been forced to knock the doors of various forums.

In view of the fact that the Petitioner has been forced to shift accommodation and fend for himself in the last seven years and has been put to extreme mental agony, this Court is inclined to direct the NBCC to pay a sum of Rs.5 lakh to the Petitioner. The writ petition is allowed. Pending application(s), if any, stand disposed of.

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Judgement Reviewed by – HARIRAGHAVA JP

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