# M/S Ansal Landmark Township(Pvt.) v. State of U.P. & Ors

- **Citation:** (2019) 3 ILRA 1328
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-15
- **Case number:** Writ C No. 28520 of 2019
- **Bench:** Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-ansal-landmark-township-pvt-v-state-of-u-p-ors-44665
- **Pages:** 18

## Headnote

A. Civil Law-Legal Services Authorities Act,
1987 - Section 22E (3) - there cannot be
two decrees on one claim - In case of
separate opinions, all opinions to be
pronounced
together
on
same
date.
Permanent Lok Adalat to draw operative
directions consistent with majority view.

HELD: - The pronouncement of the award
must necessarily be simultaneous on part of
both
the
majority
and
the
member
constituting the minority. Both the majority
and the minority would be entitled to render
separate opinions where after operative
directions would have to be necessarily
framed in tune and consistent with the view
and the decision ultimately arrived at by the
majority. The operative directions would have
to be drawn by the Tribunal reflecting and
comprising the majority view that prevailed
and the claim would consequently have to be
recognized as having been disposed of in
terms of those operative directions. (Para 17)

B. Civil Law- Indian Contract Act, 1872 -
If conditions within integrated township
are uninhabitable-allottee cannot be
compelled
to
take
on
possessiondemand of penal interest and holding
charges-unsustainable. Petitioner cannot
be permitted to enforce contract-that is
one sided and unfair.

More fundamentally the Court is of the firm
view that the petitioner cannot be legally
permitted to enforce the terms of the contract
in a manner that is patently one sided and
unfair. A developer cannot be permitted to
assert that while a failure on its part to abide
by contractual obligations are liable to be
condoned, those operating upon the allottee
must be strictly enforced. (Para 29)

Writ petition disposed of (E-9)

List of cases cited: -

## Text

_Characters 0–39,937 of 60,372. This is a partial read: ask again with offset=39937 for what follows._

1328 INDIAN LAW REPORTS ALLAHABAD SERIES
merits and the respondent no.3 is free to
pass an appropriate reasoned order in
accordance with law.

23.

With
the
aforesaid
observations/directions, the writ petition
is disposed of.
----------

(2019)11ILR A1328

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.10.2019

BEFORE
THE HON'BLE MR. YASHWANT VARMA, J.

Writ C No. 28520 of 2019

M/S Ansal Landmark Township(Pvt.)
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Prashant Shukla

Counsel for the Respondents:
C.S.C., Sri Rohan Gupta

A. Civil Law-Legal Services Authorities Act,
1987 - Section 22E (3) - there cannot be
two decrees on one claim - In case of
separate opinions, all opinions to be
pronounced
together
on
same
date.
Permanent Lok Adalat to draw operative
directions consistent with majority view.

HELD: - The pronouncement of the award
must necessarily be simultaneous on part of
both
the
majority
and
the
member
constituting the minority. Both the majority
and the minority would be entitled to render
separate opinions where after operative
directions would have to be necessarily
framed in tune and consistent with the view
and the decision ultimately arrived at by the
majority. The operative directions would have
to be drawn by the Tribunal reflecting and
comprising the majority view that prevailed
and the claim would consequently have to be
recognized as having been disposed of in
terms of those operative directions. (Para 17)

B. Civil Law- Indian Contract Act, 1872 -
If conditions within integrated township
are uninhabitable-allottee cannot be
compelled
to
take
on
possessiondemand of penal interest and holding
charges-unsustainable. Petitioner cannot
be permitted to enforce contract-that is
one sided and unfair.

More fundamentally the Court is of the firm
view that the petitioner cannot be legally
permitted to enforce the terms of the contract
in a manner that is patently one sided and
unfair. A developer cannot be permitted to
assert that while a failure on its part to abide
by contractual obligations are liable to be
condoned, those operating upon the allottee
must be strictly enforced. (Para 29)

Writ petition disposed of (E-9)

List of cases cited: -

1. Bar Council of India Vs UOI, (2012) 8 SCC
243

2. Pioneer Urban Land & Infrastructure Ltd. Vs
Govindan raghvan, (2019) 5 SCC 725

(Delivered by Hon'ble Mr. Yashwant
Varma, J.)

1. This petition, which constitutes
the second foray of the petitioner before
this
Court,
challenges
the
awards
pronounced by the Permanent Lok Adalat,
Ghaziabad. On an earlier occasion the
award
dated
13
February
2019
[hereinafter
to
be
referred
as
the
"original award"] rendered by the
Permanent Lok Adalat was set aside by a
learned Judge of the Court in terms of his
judgment dated 23 April 2019 rendered
on Writ C No. 13895 of 2019. The
3 All. M/S Ansal Landmark Township (Pvt.) Vs. State of U.P. & Ors.
1329
original award was set aside since the
same had come to be pronounced and
made only by two members of the
Permanent Lok Adalat and in the absence
of the Chairman.

2. The present petition impugns the
awards dated 28 and 29 June 2019 passed
by the Permanent Lok Adalat, Ghaziabad
in Case No. PLA/2016. The awards
rendered by the Permanent Lok Adalat
bear two separate dates since the
Chairman delivered his decision on 28
June 2019 whereas the Members thereof
pronounced their opinion on 29 June
2019. The significant question that arises
for consideration is whether the two
separate awards pronounced by the
constituents of the Permanent Lok Adalat
are legally sustainable. The claim that was
instituted before the Permanent Lok
Adalat essentially challenged the validity
of the levy of penal interest and holding
charges by the petitioner [a developer of
an integrated township] upon the third
respondent [the allottee] on an alleged
failure to take possession of a residential
plot and complete construction thereon.

3. However before proceeding
further, the following salient facts would
merit notice. The respondent No. 3 is an
allottee of a residential plot situate in an
integrated township being developed by
the petitioner. That township, known as
"Sushant Aquapolis", comprises of
residential
plots,
high-rise
towers,
commercial facilities and other supportive
and attendant amenities. The plot was
initially allotted to one Ms. Anita Uppal
who transferred the same to Sumit Pal
Singh. Sumit Pal Singh is stated to have
transferred the residential plot to the third
respondent on 14 November 2008.
Although there is no dispute with respect
to the fact that the principal consideration
for the residential plot has been duly paid
and
liabilities
in
respect
thereof
discharged, it may only to be noted that
70% of the total consideration had been
paid by 6 April 2009 and thereafter
further payments made on 16 April 2009.

4.

Admittedly
although
the
integrated township which was described
to be a "high rise lake front township" had
been launched in 2007, as per the
petitioner itself at least till 2009 the same
had not been fully developed. On 23 April
2009, the third respondent is stated to
have addressed a communication to the
petitioner bringing to its attention news
reports that a waste dump was proposed
to be established by the Municipal
Corporation adjacent to the project site. It
was asserted that the establishment of that
waste dump would render the project
uninhabitable and consequently called
upon the petitioner to respond to the
veracity of the news reports that had
appeared. This issue is stated to have been
raised yet again in terms of the
communications of the third respondent
dated 12 March and 28 July 2010. On 13
August 2010, the petitioner issued a letter
offering
possession
to
the
third
respondent and called upon him to pay
the balance consideration in respect of the
plot in question. Although the third
respondent reiterated his request for the
petitioner clarifying the position with
respect to establishment of the proposed
waste dump in his communications of 1
February 2011, those communications
were not responded to. On 3 September
2011, the petitioner apprised the third
respondent of a dispute with respect to the
establishment of the waste dump pending
in Court but assured the allottee that the
project would not be adversely affected.
1330 INDIAN LAW REPORTS ALLAHABAD SERIES
While this exchange of correspondence
ensued, it has come on record that the
project was not completed even though
five years had expired from the date of
allotment. The third respondent is stated
to have ultimately cleared all outstanding
dues in respect of the plot in question in
2012 and receipt of such payments were
issued by the petitioner on 14 April 2012.
It becomes significant to note that the
third respondent asserts to have cleared
and liquidated the remaining dues as
demanded by the petitioner subject to the
condition that no penal interest or holding
charges would be levied. However, on
that very date a demand for penal interest
and holding charges was raised by the
petitioner against the third respondent. It
is this demand that led to the dispute
traveling to the Permanent Lok Adalat.
Before this Court also parties were ad
idem that the only issue that survives is
with respect to the levy of penal interest
and holding charges.

5. When the petition was initially
heard, the Court noticed that two awards
appeared to have been pronounced by the
Permanent Lok Adalat. This in light of the
fact that while the Chairman delivered his
decision on 28 June 2019, the two
Members pronounced their order on 29
June 2019. Drawing the attention of
learned counsels to the provisions made
in Section 22E of the Legal Services
Authorities Act 19871 which clearly
provided that in case of a difference of
opinion
between
the
Members
constituting the Permanent Lok Adalat
award was liable to be declared by
majority, it was pointed out that the
impugned
orders
were
rendered
unsustainable on this short ground alone.
The counsels were accordingly apprised
of the prima facie opinion of the Court
that the award could not be sustained in
light of the unambiguous provisions made
in Section 22E (3) of the 1987 Act.
However, in order to lay the controversy
at rest and since the dispute itself stood
narrowed down only to the demand of
penal interest and holding charges,
learned
counsels
were
granted
an
opportunity to explore the possibility of
arriving at a settlement. The parties,
however,
could
not
come
to
any
settlement.

6. On a failure on the part of
respective parties to arrive at a settlement
and bearing in mind the fact that the
dispute inter partes had been lingering
since 2010, proceedings initiated before
the Lok Adalat in 2016 and already
remanded back once on an earlier
occasion, the Court expressed its view to
learned counsels that it would be
inexpedient to remit the matter to the
Permanent Lok Adalat once again and
that it would be in the interest of justice
that the matter be heard on merits and the
dispute lent a quietus at this stage itself.
On that note, learned counsels consented
for the petition being heard and disposed
of on merits. It is in the above
background
that
the
petition
was
ultimately set down for hearing.

7. Sri Prashant Shukla, leaned
counsel appearing in support of this
petition, took the Court in detail through
the award pronounced by the Chairman to
contend that the demand of penal interest
and holding charges was in accord with
the
agreement
which
governed
the
transaction and that consequently the
dispute as raised by the petitioner was
clearly untenable. He submitted that
although the petitioner had offered
possession as far back in 2010 it is the
3 All. M/S Ansal Landmark Township (Pvt.) Vs. State of U.P. & Ors.
1331
third respondent who refused to take
possession of the residential plot and thus
became liable to pay penal interest and
holding charges. It was submitted that the
waste dump did not come to be
established and therefore the objection as
taken by the third respondent was
untenable. Sri Shukla contended that no
conciliation preceded the award being
pronounced
and
submitted
that
consequently the orders passed by the
Permanent Lok Adalat were liable to be
set aside on this ground alone. In support
of this submission, Sri Shukla placed
reliance upon the decision rendered by the
Supreme Court in Bar Council of India
Vs.
Union
of
India2
and
more
particularly to the observations entered
therein emphasizing the obligation of the
Permanent Lok Adalat to initiate and
undertake a process of settlement and
conciliation. Insofar as the issue of the
establishment of the waste dump is
concerned, Sri Shukla submitted that the
aforesaid project came to be stalled
pursuant to the injunction issued by the
National Green Tribunal [hereinafter to be
referred to as the "NGT"] in 2016 and
the project itself ultimately dropped. It is
pertinent to note that the petitioner refers
to the injunction of the NGT issued in
December 2016 and the project itself
being
shelved
by
the
Municipal
Corporation, Ghaziabad in 2018. It was
further asserted that as many as 150
allottees had accepted possession by
payment of charges and completion of all
formalities. It was also asserted that these
allottees have been living in the project
since 2010. Though it is admitted by the
petitioner that there was delay in
construction and completion of the
project, the same is explained to be on
account of circumstances beyond the
control
of
the
petitioner.
It
is
consequently
contended
that
no
deficiency of service or negligence can be
attributed to it.

8. The Court called upon Sri Shukla
to clarify whether the agreement specified
any rate at which holding charges were
liable to be levied. To this it was fairly
conceded that no specific charge or rate at
which holding charges were liable to be
demanded
stood
stipulated
in
the
agreement.

9. Refuting the submissions urged
on behalf of the petitioner, Sri Rohan
Gupta, learned counsel appearing for the
third respondent, submitted that the
record clearly reflected that despite
repeated
communications
being
addressed, the issue of establishment of
the waste dump was never clarified by the
petitioner at least till 2011. According to
Sri Gupta, even in the communication of
the petitioner of 2011 only an assurance
was proffered and no details with respect
to any decision taken by the Municipal
Corporation to shift the proposed waste
dumb referred to. According to Sri Gupta,
the admitted facts established that the
waste dump was proposed to be set up
adjacent to the township itself and it was
in that backdrop that the NGT issued the
injunction in December 2016. Sri Gupta
contends that as per the petitioner's own
assertion in the writ petition the project
was ultimately shelved by the Municipal
Corporation, Ghaziabad only in 2018.
This, according to Sri Gupta, is clearly
indicative of the fact that at least till 2018
there was no clarity whether the waste
dump would or would not be established
next to the residential township. Sri Gupta
contended
that
the
proposed
establishment of the waste dump directly
impacted the viability of the respondent
1332 INDIAN LAW REPORTS ALLAHABAD SERIES
No. 3 and other allottees constructing
residential premises in its immediate
vicinity. Sri Gupta highlighted the fact
that the project itself was touted to be a
"Lake Facing Integrated Township"
and that the entire underlying concept of
such a township would have been placed
in jeopardy in case a waste dump came to
be established adjacent thereto. He
submitted that it was in that background
that the third respondent persisted in
seeking clarifications from the petitioner
before taking possession. According to
him, in case the third respondent was
compelled to take possession, it would
have resulted in him facing a fait
accompli in case the waste dump had
ultimately come to be established.

10. Sri Gupta then referred to the
Commissioner's report filed before the
Permanent Lok Adalat which according to
him clearly established that the project
was incomplete, construction work was
ongoing and that basic amenities and
supportive infrastructure had not been
established. Sri Gupta referred to the
report of the Commissioner in extenso to
contend that the conditions as obtaining at
the site rendered construction impossible
and conditions uninhabitable. From this
report of inspection undertaken in 2017, it
was also highlighted that neither the
proposed hospital nor nursing home had
been constructed. Referring to that report
it was pointed out that under construction
towers were not barricaded and even
safety netting as mandated in terms of
environmental norms not placed around
them. It was submitted that on account of
ongoing
construction
work,
the
environment in the township rendered
conditions unlivable and that the main
road for ingress and egress was being
used day and night by trucks and dumpers
carrying construction material and waste.
He also referred to the fact that a mixing
plant continued to function in the
township which was proof of the fact that
construction activities were continuing
therein.

11. Sri Gupta then assailed the
validity of the provisions in the agreement
pertaining to penal interest and holding
charges and submitted that they were
clearly unconscionable since the third
respondent was compelled to sign on the
dotted line and accept the terms and
conditions as imposed by the petitioner.
Sri Gupta taking the Court through the
terms of the agreement submitted that it
was clearly one sided and an outcome of
the unfair bargaining position in which
the
allottee
stood
placed.
It
was
contended that since there was an
admitted failure on the part of the
petitioner to fulfill its own obligations
under the agreement, the provisions in
respect of penal interest and holding
charges could not be enforced. According
to Sri Gupta, the third respondent had
bargained for a residential plot in an
integrated township. He referred to the
fact
that
the
petitioner
itself
had
advertised the project to be a selfsufficient residential oasis. However and
since the reality at the ground level was in
stark contrast to what had been proposed
and promised, Sri Gupta contended that
the levy of penal interest and holding
charges was clearly illegal, unfair and
unjust.

12. Sri Shukla, learned counsel for
the petitioner, was granted an opportunity
to respond to the submissions addressed
on behalf of the third respondent who
assailed the validity of the agreement on
the ground of being unconscionable and
3 All. M/S Ansal Landmark Township (Pvt.) Vs. State of U.P. & Ors.
1333
thus unenforceable. Learned counsel,
however, chose not to proffer any legal
justification in that respect. It is the rival
submissions recorded above that now fall
for determination.

13. For the sake of clarity and ease
of reference this would perhaps be an
appropriate stage to identify the core
questions that arise in the background of
the facts noticed above and the rival
submissions advanced. The Court finds
that the following three principal issues
arise for consideration: -

A. The validity of two separate
awards pronounced by the Permanent Lok
Adalat in respect of a singular cause

B. The legality of the levy of
penal interest and holding charges, and

C.
The
validity
of
the
stipulations contained in the agreement
executed between the parties, which are
assailed
on
the
ground
of
being
unconscionable and thus unenforceable.

14. The Court firstly proposes to
dispose of the peripheral issue and contention
addressed on behalf of the petitioner that no
conciliation proceedings were undertaken by
the Permanent Lok Adalat before rendering
award. It becomes pertinent to note that the
original award in unambiguous terms records
that a conciliation process was undertaken and
the matter placed for disposal on merits only
once such efforts did not bear fruit. In
Paragraph -20 of the writ petition it is
however asserted that this recital as appearing
in the original award is incorrect. The
aforesaid assertion is affirmed on the personal
knowledge of the deponent to the writ
petition, who is stated to be the Manager
(Land) of the petitioner. This deponent,
however, does not disclose as to how he
derives personal knowledge of this fact. He
also does not assert to have been present
before the Permanent Lok Adalat when
hearings were held nor does he state that he
was
continually
associated
with
the
proceedings that were undertaken by the
Permanent
Lok Adalat.
On
a
more
fundamental plane the Court notes that the
petitioner is not stated to have made any
application to the Permanent Lok Adalat
assailing or disputing the recordal of
conciliation
proceedings
having
been
undertaken and seeking rectification of the
record in that respect. It is well settled that
recitals appearing in an order or decision of a
Tribunal cannot be assailed or questioned
unless a procedure for rectification duly
initiated before that Tribunal or Authority
itself. While this would have been sufficient to
negative the contention in this regard as
canvassed, the Court further notes that in the
earlier round of litigation that ensued between
parties and travelled to this Court also no such
allegation or contention appears to have been
urged. Sri Shukla despite liberty being granted
in this regard was unable to either place for
the perusal of the Court either a copy of the
earlier writ petition nor was he able to
otherwise establish that this objection was
taken to the award that was originally
rendered. In any case, as this Court reads the
judgment rendered by the learned Judge on
the earlier writ petition, it is manifest that the
only ground which appears to have been
orally urged in challenge to the award was
that it had come to be passed by two
Members and in the absence of the Chairman.
In view thereof, the Court finds itself unable
to accept the submission that the Permanent
Lok Adalat proceeded to render award
without undertaking requisite conciliatory
measures.

15. Having disposed of this issue,
the Court then proceeds to deal with the
principal questions that arise.
1334 INDIAN LAW REPORTS ALLAHABAD SERIES

A.
The
validity
of
two
separate awards rendered by the
Permanent Lok Adalat in respect of a
singular cause

16. The Court deems it apposite to
firstly deal with the legality of the
procedure as adopted by the Permanent
Lok Adalat which has resulted in two
separate and distinct awards coming into
existence. The Court is constrained to
observe that the Chairman of the
Permanent Lok Adalat clearly records in
his order that the two members had duly
apprised him of not being in agreement
with the view proposed to be taken by
him, that they were inclined to follow a
separate line of reasoning and arrive at a
decision contrary to what he proposed to
make. Despite that being the admitted
position, the Chairman proceeded to
pronounce his decision on 28 June 2019.
It is also relevant to note that the
dissenting
members
did
not
simultaneously and in any case on that
date pronounce their decision. They
proceeded to declare their decision on the
next day, namely, 29 June 2019. The
Court bears in mind the provisions made
in Section 22E of the 1987 Act which
prescribes in unambiguous terms that the
award made by the Permanent Lok Adalat
shall be by a majority of persons
constituting the Tribunal. It is also
pertinent to note that Section 22E confers
on the award rendered by the Permanent
Lok Adalat the same status as that of a
decree of the Civil Court. Section 22E,
which is the key to the answer to this
issue, reads as follows:

"22E. Award of Permanent
Lok Adalat to be final.- (1) Every award
of the Permanent Lok Adalat under this
Act made either on merit or in terms of a
settlement agreement shall be final and
binding on all the parties thereto and on
persons claiming under them.

(2)
Every
award
of
the
Permanent Lok Adalat under this Act
shall be deemed to be a decree of a civil
court.

(3) The award made by the
Permanent Lok Adalat under this Act
shall be by a majority of the persons
constituting the Permanent Lok Adalat.

(4) Every award made by the
Permanent Lok Adalat under this Act
shall be final and shall not be called in
question in any original suit, application
or execution proceeding.

(5) The Permanent Lok Adalat
may transmit any award made by it to a
civil court having local jurisdiction and
such civil court shall execute the order as
if it were a decree made by that court".

17. It is manifest from a plain
reading of Section 22E that the 1987 Act
does not envisage two separate awards
being rendered. This, undisputedly, since
there cannot be two decrees in respect of
one claim. While dissent and difference of
opinion can be envisaged and is always a
possibility in the case of a multi-member
Tribunal, such situations are and would be
clearly governed by Section 22E (3). In
case of a difference of opinion, it is open
to the members of a multi-member
Tribunal to record independent and
separate opinions. It is also possible for
some of the members to join together and
render a decision thus constituting the
majority view. If the majority proceeds to
draw up a separate opinion, the remaining
member of the Tribunal can always record
dissent. However, the pronouncement of
the
award
must
necessarily
be
simultaneous on the part of both the
majority and the member constituting the
3 All. M/S Ansal Landmark Township (Pvt.) Vs. State of U.P. & Ors.
1335
minority. Both the majority and the
minority would be entitled to render
separate opinions where after operative
directions would have to be necessarily
framed in tune and consistent with the
view and the decision ultimately arrived
at by the majority. The operative
directions would have to be drawn by the
Tribunal reflecting and comprising the
majority view which prevailed and the
claim would consequently have to be
recognized as having been disposed of in
terms of those operative directions. This
procedure and practice, which is well
settled and must be recognised as the
solitary course liable to be adopted was
evidently not followed.

18. As a consequence of the
procedure adopted by the Permanent Lok
Adalat in the present case, two awards
have come into being in respect of a
singular claim. The correct approach on
the part of the Chairman of the Permanent
Lok Adalat upon being informed by the
other members that they were desirous of
taking and adopting a stand contrary to
that proposed by him would have been to
desist from pronouncing award on 28
June 2019. The correct, nay, the only
course which should have been adopted
was for the Permanent Lok Adalat to
pronounce opinions together and on the
same date. After declaration of separate
opinions it would have been incumbent
upon the Permanent Lok Adalat to draw
up operative directions consistent with the
view taken by the majority. However and
since this course was not adopted by the
Permanent Lok Adalat, it has resulted in
the coming into existence of two separate
and inconsistent decrees. Undisputedly
there cannot possibly be two separate
decrees in respect of one claim. As
observed earlier, while there may be
separate views and opinions pronounced
in a matter, the decree must necessarily be
only one and that which reflects and
embodies
the
majority
view
that
prevailed. Both the orders of 28 and 29
June 2019 consequently are liable to be
quashed and set aside on this ground
alone.

B. The legality of the levy of
penal interest and holding charges by
the
petitioner
upon
the
third
respondent

19. The Court then proceeds to deal
with the substance of the dispute which
led to the institution of proceedings
before the Permanent Lok Adalat. In
order to appreciate the nature of the
contract between the parties it would be
apposite to notice some of the salient
clauses of that agreement. The relevant
provisions of the agreement are extracted
herein below:

"1. That the BUYER has
applied for a plot and the DEVELOPER
has with the consent of the BUYER
allotted the Plot No. 0032 in Block A
admeasuring 251 Sq. meters (approx 300
Sq. Yards) @ Approx Rs.10,458/- per sq.
meter (Rs. 8750/- per sq. yard) in
Acquapolis Ghaziabad subject to the
following terms and conditions:

2. That the above agreed price
of the residential plot covers development
of internal service such as laying of roads,
development of parks and landscapes,
laying of water lines laying of sewer
lines, laying of electrical HT/LT lines,
street lights, laying of storm water drain
lines and erection of electrical substations and to develop necessary civil
services essential for a convenient living.
The payments is to be made in
1336 INDIAN LAW REPORTS ALLAHABAD SERIES
installments as prescribed in Schedule-1/
Schedule-1A annexed to this Agreement.
The applicable schedule shall form and be
read as part of this Agreement.

...

11. That the timely payment of
installments
as
stated
in
Schedule1/Schedule-1A of the Agreement and
applicable stamp duty, registration fee and
other charges payable under this Agreement
is the essence of this contract. In the absence
of any notice of demand issued by the
DEVELOPER, it shall be incumbent on the
BUYER to strictly comply with the terms of
timely payment and the other terms and
conditions on this Agreement, failing which
allotment shall stand cancelled and the entire
amount of Earnest Money deposited by him
shall be forfeited and the BUYER shall be
left with no right or lien on the plot. The
amount(s), if any, paid over and above the
Earnest Money shall be refunded to the
BUYER without any interest. In exceptional
circumstances, the DEVELOPER may at its
sole absolute discretion condone the delay in
payment by charging an interest @ 18% p.a.
on the amount outstanding. In the event of
the DEVELOPER waiving the right of
forfeiture and accepting payment on that
account, no right, whatsoever, would accrue
to
any
other
defaulting
BUYER
(Buyer/Purchaser).

...

14. That the BUYER agrees that
the sale of the units is subject to force
majeure clause which inter alia include
delay on account of non-availability of
steel, cement or any other building
materials, or water supply or electric
power or, slow down, strike or due to a
dispute with the construction agency
employed by the DEVELOPER, civil
commotion or by reason of war, or enemy
action or earthquake or any act of God,
delay in certain decisions/ clearances
from statutory body(ies) or if nondelivery of possession is as a result of any
notice, order rules or notification of the
Government and / or any other public or
Competent Authority or for any other
reason
beyond
the
control
of
the
DEVELOPER and any of the aforesaid
event, the DEVELOPER shall be entitled
to a reasonable corresponding extension
of the time of delivery of possession of
the said plot on account of force majeure
circumstances and in such eventuality the
BUYER will not claim any amount of
money by way of damages/ compensation
from the DEVELOPER.

15. That the booking/ allotment,
once made, cannot be cancelled by the
BUYER.
However,
the
discretion
absolutely rests with the DEVELOPER to
allow cancellation subject to forfeiture of
Earnest Money. The amount, if any, paid
over and above the Earnest Money shall
be refunded to the BUYER without any
interest.

...

17. That the BUYER shall be
bound to start construction of the house
with due sanction of Competent Authority
with in a period of 3 years from the date
of intimation to take possession is sent by
the
DEVELOPER,
failing
which
DEVELOPER will be entitled to resume
the plot without any compensation and to
allot the same to intending another
BUYER and sale price of the plot
received by DEVELOPER shall be
refunded to the BUYER without any
interest. Alternatively, it shall be at the
sole discretion of the DEVELOPER to
extend the period of construction, but in
that event, the BUYER shall be liable to
pay holding charges for the plot area to
the DEVELOPER for the extended period
as decided by the DEVELOPER."
3 All. M/S Ansal Landmark Township (Pvt.) Vs. State of U.P. & Ors.
1337

20. The essence of the
complaint which was laid before the
Permanent Lok Adalat manifests from the
following averments as contained in the
petition filed by the third petitioner:-

"1.That Defendant launched a
plan for integrated township popularly
known as Aquapolis a at Dundahara.
Ghaziabad in 2007. This township
includes
the
multistory
flats,
Commercial
Complex
and
other
institutions. In his agreement letter
Ansal called it highrise Lake Front
Township. The copy of sale plan and
advertisement
brochure
is
enclosed
herewith as Annexure-

..

6. That On dt 16 April, 2009
Complainant
had
further
paid
Rs.
2,69,063/- being 10% of the plot and
requested to Defendant to inform the
possession for the property. At this time
80% of the payment of plot has been
made to the Defendant.

Complainant
has
also
enquired in this letter from Defendant
that there is great rumor and news
about dump yard of Govt. Local Body
is coming in Aquapolis project or
nearby and expressed his fear if such
yard
comes
in
this
project
and
vicinity/neighbourhood of the project
then nobody will be able to have their
residential house in such non-living
condition.
Complainant
requested
Defendant to inform the date of
possession and clarify the status of
dumping yard. This letter was received
in Defendant office on 23th April, 2009
and places here as Annexure 4.

No
reply
was
given
by
Defendant to Complainant of this
letter.

13.
On
29
Nov
2011
Complainant
issued
a
letter
to
Defendant to reminding them dumping
yard issue and asked for the layout
map of the project indicating the
position of plot and dumping yard and
distance
between
the
them,
but
Defendant neither gave any reply nor
any details in this regards till date.

Complainant also stated that
since the project is not clear even after
approx. 5 years from the allotment
than how the possession can be made to
consumer.

However, to buy peace of
mind which is also disturbed due to
their demand letters and without
prejudice to his rights, Complainant
has made the balance payment of
Rs.5,30,051 towards 100% cost of plot
and
Rs.60,000/-
for
the
water
connection, electric connection and
infrastructure development charges.

As per the discussion with
Defendant, it was agreed that accepting
these payment interest mentioned in
demand letter is totally waived and
Defendant will not be entitled for any
interest, damage etc. In future also.
This fact was mentioned in our letter
also through which the abvoe such
payment
has
been
made.
The
Defendant has accepted the payment
and issued the official receipts on
14.04.2012 the for above said cost and
charges. This letter and receipts are at
Annexure-11.

14. On dt. 14.04.2012 again
Defendant issued for the penal interest
and holding charges. This letter is at
Annuxure-12.

15. Complainant again replied
to the Defendant that we have made all
payments to them and nothing is due and
asked them to clarify again dumping yard
1338 INDIAN LAW REPORTS ALLAHABAD SERIES
issue, layout map of the project and
dumping yard. Complainant has also
informed to the Defendant that no sewer
line is present at site and reiterated that
they have taken a plot for residential in a
mini town ship where all the committed
commercial center and other facilities
were shown on paper. But does not exist
all at site Just merely cutting the lands
into plot you cannot enforce the customer
to take the possession whereas the whole
other site is under construction.

As on that date also the
construction material is scattered at the
site and dumper with dust and other
building materials are moving all round
for the constructions of the project. The
condition of the site is such that
possibility of living with the family is not
possible at all at the site. This letter is at
Annexure- 13.

16. That the defendant has
issued the statement of account for the
demand of interest for Rs.2,20,266/- and
holding charges for Rs.3,00,639/- up to
April 20, 2015, which are totally
unwarranted. This letter is at Annexure14.

17. The Defendant has never
replied / given any details on the issue
of dumping yard. Even in one of the
letter of Defendant has admitted that
land title was not clear. His project for
mini township is far behind the its
committed and even at present their
does not seem any such situation on the
site which was committed by Defendant
and shown on its catalogue and
broacher at the time of selling of plot. It
is a case of fraud against the small and
innocent buyer. On one side the
Defendant is not able to deliver, which
was committed by them and on the
other side there are enjoying the 100%
payment collected from the buyers.

Now they want to collect the
undue charges like panel interest,
holding charges etc. by threating and
not giving the possession without these
payments. Till date the dumping yard
issue is there, and the project is also
incomplete then how the Defendant can
ask the holding charges and interest. In
such
situation,
Complainant
are
entitled for interest for other payments
as the project is not delivered by
Defendant, and they should also be
penalized
for
their
deficiency
in
services."

21. The Court also deems it relevant
to refer to the following facts as recorded
in
the
report
submitted
by
the
Commissioner before the Permanent Lok
Adalat.

^^eSus fujh{k.k fd;k rks ik;k fd ml
le; fefDlax IykUV cUn gS ysfdu vkl ikl
dbZ cgq eaftys v/kZ fufeZr Vkojksa esa dqN fuekZ.k
dk;Z py jgk gSA lEiw.kZ Vkmuf'ki eq[;r% nks
fgLlksa esa cVh gqbZ gSA if'pe nf{k.k dh vksj
Hkw[k.M gS o mRrj&iwoZ dh vksj vf/kdka'kr%
cgqeaftys Vkoj gSaA valy yS.MekdZ ds izfrfuf/k
}kjk crk;k x;k fd Hkw[k.Mksa dh la[;k 250 gSA
;g Hkh crk;k x;k fd dqy Hkw[k.Mkas ds yxHkx
90 izfr'kr Lokfe;ksa dks vf/kiR; fn;k tk pqdk
gS rFkk vc rd yxHkx nl Hkouksa dk fuek.kZ
iw.kZ gks pqdk gS o pkj ikap fuek.kkZ/khu gSA eS
vf/kdka'kr% fookfnr Hkw[k.M ls fn[kkbZ ns jgs FksA
dqy cgqeaftys Vkojksa dh la[;k rsbZl crk;h
x;h ftuesa ls 13 ds Structure dk fuekZ.k
fd;k x;k gS vkSj 04 Vkojksa ds fo"k; esa
occupancy certificate izkIr dj pqdk gSA
lEiw.kZ Vkmuf'ki esa pkj Ldwy izLrkfor gS
ftuesa ls nks dk fuekZ.k fd;k tk pqdk gSA
Vkmuf'ki esa vHkh rd fpfdRlk lqfo/kk lqfo/kk
gS dksbZ vLirky o uflZax gkse ugh cuk;k x;k
gS] Fkkus dk fuekZ.k Hkh ugh fd;k x;k gSA

eSus fujh{k.k esa ik;k fd fefDlax
IykUV vkSj fuek.kkZ/khu Vkojksa o Vkmuf'ki ds
3 All. M/S Ansal Landmark Township (Pvt.) Vs. State of U.P. & Ors.
1339
Hkw[k.M okys Hkkx ftlesa lM+d ikdZ vkfn dh
lqfo/kk miyC/k gS mls lqj{kk o iznw"k.k ls cpkus
dh n`f"V ls csjhdsfVax yxkdj i`Fkd ugh fd;k
x;k gSA fuek.kZk/khu Vkojksa dks ,u0 th0 Vh0 ds
vkns'k ds ckotwn tkyh ls ugh

mDr Jh foosd xqIrk }kjk eq>s ;g
crk;k x;k fd fuekZ.kk/khu Vkojksa ds tks etnwj
gS] csjhdsfVax u gksus ds dkj.k muls o Vadksa
vkSj MEijksa ds dkj.k iwjk {ks= jkf= ds le;
fo'ks"k #i ls vlqjf{kr gSA^^

22. At the very outset it would be
pertinent to briefly elucidate and explain
the concept and key elements of what is
commonly understood as an "integrated
township". An allottee in an "integrated
township" envisages and visualizes a
consolidated and unified project complete
and self sufficient in all respects. An
integrated township, which may comprise
of condominiums and residential plots, is
understood and expected to comprise of
an amalgam of various elements which
together would make it self-sufficient and
enhance the quality of life within it. Apart
from making provision for roads, street
lighting, sewer lines and waste treatment
measures therein, it would also be
expected to include supportive and shared
facilities
attendant
to
the
basic
infrastructural
amenities
referred
to
above. These may extend to establishment
of supportive facilities that may be
promised by the developer such as a
commercial
center,
medical
center,
recreational facilities and security to
name a few. These "gated communities",
as we have come to commonly describe
such projects, are secured communes
which not merely provide a residence to
its occupants but also provide to them
shared and concomitant facilities within
the premises itself so as to make it selfsustaining, convenient and thus enhancing
the over all experience of residing therein.

23. Undisputedly, the residential
plot in question was situate in the
integrated township that the petitioner
proposed to develop. The integrated
township was described by the petitioner
itself as comprising of residential plots,
high rise towers, commercial facilities
and
other
supportive
infrastructural
amenities.
The
petitioner
chose
to
describe the township as a high-rise lake
front township. It was with the aforesaid
project concept in mind that the third
respondent entered into a contract with
the petitioner. From the contents of the
Commissioner
report
which
was
submitted before the Permanent Lok
Adalat, however, it comes to light that out
of a total of twenty three towers which
were
proposed
to
be
constructed,
occupancy certificates had been granted
only in respect of four. The Commissioner
further noted the assertion of the
petitioner that 90% of the allottees had
been supposedly granted possession. The
inherent
and
manifest
inconsistency
between this assertion and the recordal of
fact that occupancy certificates had been
granted only in respect of four towers out
of a total of twenty three which were
proposed could not be explained by the
petitioner. The Commissioner further
notes that the proposed medical facility
and Nursing Home had neither been
constructed nor established.