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2024 (7) TMI 1351 - HC - Indian LawsForum shopping - direction to respondents to provide an alternate flat in vicinity as that of flat which was booked by the petitioners in their project namely NBCC Green view Apartments - direction to respondents to refund the amount paid by the petitioners with reciprocal interest @ 15% per annum and with compensation for mental torture, agony, and harassment; and to pay extra compensation - HELD THAT - 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 ould be able to get his money back. 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. NBCC is an instrumentality of the State. It is well settled that the 'State' is duty bound to act reasonably and fairly. In NOIDA ENTREPRENEURS ASSOCIATION VERSUS NOIDA ORS. 2011 (5) TMI 1043 - SUPREME COURT , the Apex Court held that the State or the public authority which holds the property of the public acts as a trustee, and therefore, has to act fairly and reasonably. The State or the instrumentality of the State is accountable to the people and it is supposed to act in public good promoting public interest. An action of a State or the instrumentality of the State stands vitiated if it lacks bonafides. Admittedly, the total consideration of the flat has been paid in 2017. Material on record indicates that there are structural defects in the buildings. In view of the fact that the Petitioner has been deprived of his money for the last 10 years, structurally defective houses have been constructed by the NBCC, the Petitioner has been left in complete lurch, the refusal of the Respondent which is a State to pay interest on the amounts which it held in trust of the Petitioners and the reluctance to ensure that the Petitioner is rehabilitated effectively, the Respondent should be dealt with severely. This Court is, therefore, inclined to allow the instant writ petition directing the Respondent/NBCC to return the entire amount of money paid by the Petitioners within a period of six weeks from today along with interest @ 12% from 30.01.2021 till today - 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. Petition allowed.
Issues Involved:
1. Non-delivery of the flat despite full payment. 2. Structural defects in the buildings. 3. Adequacy of the compensation offered by NBCC. 4. Allegations of forum shopping by the Petitioner. 5. Jurisdiction under Section 79 of the RERA Act. 6. Relief sought by the Petitioner. Issue-wise Detailed Analysis: 1. Non-delivery of the flat despite full payment: The Petitioner, a flat owner in the "NBCC Green View Apartments" project launched by Respondent No.1 in 2012, paid the entire sales cost of Rs. 76,85,576/- by 2017. Despite this, the flat was never handed over to the Petitioner. The Petitioner received a Possession Certificate on 30.01.2021, but physical possession was not given due to incomplete construction. The Petitioner was temporarily accommodated in a different flat and later asked to vacate due to structural defects in the buildings. 2. Structural defects in the buildings: Residents, including the Petitioner, noticed structural defects in the buildings. Experts from IIT Delhi assessed the structures and recommended evacuation within two months due to accelerated deterioration. Respondent No.1 issued a notice on 18.11.2021 for residents to vacate by 23.11.2021. The Petitioner complied and moved to a rental accommodation with a rent allowance provided by NBCC for six months. 3. Adequacy of the compensation offered by NBCC: NBCC offered to refund the principal amount paid by the Petitioner without any interest and provided a rent allowance of Rs. 12.50/- per sq. ft. for six months. The Court found this compensation inadequate, noting that the Petitioner had been deprived of his money for ten years and faced immense stress and financial hardship. The Court directed NBCC to return the entire amount with 12% interest from 30.01.2021 and pay Rs. 5 lakh for mental agony. 4. Allegations of forum shopping by the Petitioner: Respondent No.1 argued that the Petitioner was guilty of forum shopping, having approached various forums, including NCDRC and Haryana RERA. The Court acknowledged that while forum shopping is generally condemned, in this case, the Petitioner's actions stemmed from desperation and lack of legal knowledge, not a strategic pursuit of a favorable outcome. 5. Jurisdiction under Section 79 of the RERA Act: Respondent No.1 contended that Section 79 of the RERA Act bars civil courts from entertaining suits or proceedings related to matters under RERA's jurisdiction. The Court, however, emphasized the extreme hardship faced by the Petitioner and the State's duty to act reasonably and fairly. The Court held that the Petitioner's actions were justified given his circumstances. 6. Relief sought by the Petitioner: The Petitioner sought either an alternate flat or a refund with interest and compensation for mental torture. The Court directed NBCC to refund the entire amount with 12% interest and pay Rs. 5 lakh for mental agony. The Court dismissed the contempt petition, noting that NBCC had complied with the monthly payment order and attempted to provide alternate accommodation, though the Petitioner found it unsatisfactory. Conclusion: The Court allowed the writ petition, directing NBCC to refund the entire amount with interest and pay additional compensation for mental agony, emphasizing the State's duty to act fairly and reasonably in such cases. The contempt petition was dismissed as NBCC had complied with the previous orders.
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