BEFORE THE HARYANA REAL ESTATE APPELLATE TRIBUNAL

Appeal No. 244 of 2020

Date of Decision: June 03, 2021

M/s Deepak Land Promoters (P) Ltd. Through its Director Shri Pankaj Aggarwal
Registered Office: 158-E, Kitchlu Nagar, Ludhiana (Punjab) - 141001.
......Appellant
Versus

M/s Ireo Grace Realtech Pvt. Ltd. Registered Office: C-4, 1st Floor, Malviya Nagar,
New Delhi - 110017.
...... Respondent

Coram: Justice Darshan Singh (Retd) Chairman

Shri Inderjeet Mehta Member (Judicial)
Shri Anil Kumar Gupta Member (Technical)

Argued by: Shri Rit Arora, Advocate, Ld. counsel for the appellant.

Shri Shekhar Verma, Advocate, Ld. counsel for the respondent.

ORDER:
JUSTICE DARSHAN SINGH (RETD), CHAIRMAN:

The present appeal has been preferred under Section 44(2) of

the Real Estate (Regulation and Development) Act, 2016 (hereinafter called

the Act”) against the order dated 25.02.2020 passed by the Ld. Haryana

Real Estate Regulatory Authority, Gurugram (hereinafter called the Ld.

Authority”) in Complaint No. 3035 of 2019. The complaint filed by the

appellant/allottee was disposed of by the Ld. Authority vide impugned

order dated 25.02.2020 with the following directions.

i. The respondent is directed to pay delayed possession

charges at the prevalent prescribed rate of interest of 10.15%

p.a. with effect from 27.11.2018 (due date of delivery of

possession) till the offer of possession in terms of section 18(1)

proviso of the Act read with Rule 15 of the Haryana Real Estate

(Regulation and Development) Rules, 2017.

ii. The arrears of interest, so accrued from due date of

delivery of possession i.e. 27.11.2018 till the date of order i.e.

25.02.2020 be paid by the respondent at the prescribed rate

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of interest of 10.15% p.a. to the complainant within 90 days

and thereafter monthly interest be paid on or before 10 th of

each subsequent English calendar month.

iii. The complainant is directed to pay outstanding dues, if

any, after adjustment of interest for the delayed period.

iv. The respondent shall not charge anything from the

complainant which is not part of the buyer‘s agreement.

Interest on the due payments from the complainant shall be

charged at the prescribed rate @10.15% p.a. by the promoter

which is the same as is being granted to the complainant in

case of delayed possession charges.‖

2. As per the averments in the complaint, the appellant was

allotted Apartment No. 904, 9th Floor, Tower B5 “The Cooridors”, Sector

67-A, Gurugram, Haryana for a total sale consideration of Rs.

1,51,55,239.53/-. The Apartment Buyer‟s Agreement was executed on

27.05.2014 (Annexure A-2). As per the terms of the agreement, the

possession was to be offered within a period of 42 months from the date

of approval of building plans. It is alleged by the appellant that the due

date of possession comes to 23.01.2017. But the respondent had failed

to deliver/offer the possession within the stipulated period. Hence the

complaint, wherein, the appellant has sought the following reliefs:-

„‟ i) Direct the respondent to deliver the immediate

possession of the unit bearing no. CD-B5-09-904 located in

the project Ireo Corridors at Sec-67A, Gurugram, Haryana

along with complete amenities and prescribed rate of interest

from the promised date of delivery until actual possession to

the complainant company; and

ii) Direct the respondent company to make the payment of

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the monthly interest as installment until the actual delivery

of the possession of the apartment to the complainant

company; and

iii) Pass an order declaring that any delay penalty charged

by the respondent company on the complainant as illegal,

arbitrary and unsustainable; and

iv) Pass an order waiving off/setting aside any delay

penalty levied by the respondent company especially in view

of the fact that the respondent company has failed to deliver

the possession of the apartment within the promised time

frame to the complaint company.

v) Direct the respondent to pay a lump sum compensation

of Rs. 10,00,000/- (Rupees Ten Lakhs only) as

compensation for mental agony and harassment caused to

the complainants; and

vi) Direct the respondent to pay a sum of Rs. 50,000/-

(Rupees Fifty Thousand only) as litigation expenses to the

complainants; and

vii) May pass any other orders.‖

3. Respondent/promoter contested the complaint on the

grounds inter-alia that for the purpose of calculating the time period for

delivery of possession, the respondent/promoter was entitled for an

extension of a period of 12 months from the end of the grace period as

per clause 13.5 of the Apartment Buyer‟s Agreement. It is further

pleaded that as per the terms and conditions of the agreement, the due

date to handover the possession is to be computed from the date of

grant of the last pre-condition and that the firefighting scheme approval

was granted on 27.11.2014. So, the due date to handover the

 BEFORE THE HARYANA REAL ESTATE APPELLATE TRIBUNAL

possession comes to 27.11.2019, as per clause13.3 and clause 13.5 of

the Apartment Buyer‟s Agreement. All other pleas raised in the

complaint were controverted. Respondent/promoter has also raised

certain legal and preliminary objections. With these pleas, the

respondent/promoter pleaded for dismissal of the complaint.

4. After hearing ld. Counsel for the parties and appreciating

the material on record, the ld. Authority disposed of the complaint by

issuing direction reproduced in the upper part of this order vide

impugned order dated 25.02.2020.

5. Aggrieved with the aforesaid order of the ld. Authority, the

present appeal has been preferred.

6. We have heard Sh. Rit Arora, Ld. Counsel for the appellant.

Sh. Shekhar Verma, Advocate, ld. Counsel for the respondent and have

carefully gone through the record of the case.

7. There are certain undisputed facts. The offer of allotment of

the unit was issued on 07.08.2013. Apartment Buyer‟s Agreement was

executed on 27.05.2014. The building plan was approved on

23.07.2013.The environment clearance was given on 13.12.2013

(Annexures R-24). The fire Safety clearance was granted by the

competent Authority on 27.11.2014 (Annexure R-25). Clause 13.3 of the

Apartment Buyer‟s Agreement deals with the delivery of possession.

8. Ld. Counsel for the appellant/allottee has contended that as

per the clause 13.3 of the agreement, the possession was to be offered

within 42 months from the date of approval of building plan. He

contended that the building plan in this case was approved on

23.07.2013, so, the possession should have been offered by 23.01.2017.

The fire safety clearance which was provided later on is of no-

significance as the construction had already started. Thus, he

contended that the ld. Authority has wrongly determined the deemed
 BEFORE THE HARYANA REAL ESTATE APPELLATE TRIBUNAL

date of possession to be 27.11.2018 i.e. 48 months from the date of fire

safety clearance and the impugned order passed by the ld. Authority is

required to be modified to this extent. He has referred to the order of

this Tribunal dated 21.09.2020 in Appeal No. 425 of 2019 titled as

Sudhakar Chawla and others Vs. M/s IREO Grace Realtech Pvt. Ltd.

9. On the other hand, Sh. Shekhar Verma, Advocate ld.

Counsel for the respondent contended that the ld. Authority has rightly

determined the due date of possession to be 27.11.2018. He contended

that as per clause 13.3 of the agreement, the possession was to be

delivered within 42 months plus 180 days as grace period from the date

of approval of the building plans and/or fulfillment of the conditions

imposed therein. He contended that the environment clearance and the

fire safety clearance were the conditions imposed in the approval of

building plans granted by the Competent Authority. He further

contended that environment clearance was granted on 12.12.2013 and

approval of firefighting scheme was granted on 27.11.2014. Thus, he

contended that the Ld. Authority has rightly determined the due date of

possessions.

10. We have duly considered the aforesaid contentions. The

short question involved in the present appeal is as to whether the

deemed date of offer/delivery of possession is to be determined from the

date of approval of the building plans i.e. 23.07.2013 or the approval of

the firefighting scheme granted on 27.11.2014.

11. Clause 13.3 of the Apartment Buyer‟s Agreement dated

27.05.2014 reads as under:

―13.3 Subject to Force Majeure, as defined herein and

further subject to the Allottee having complied with all its

obligations under the terms and conditions of this Agreement

and not having defaulted under any provision(s) of this

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Agreement including but not limited to the timely payment of

all dues and charges including the total Sale Consideration,

registration charges, stamp duty and other charges and also

subject to the Allottee having complied with all formalities or

documentation as prescribed by the Company, the company

proposes to offer the possession of the said Apartment to the

Allottee within a period of 42 (Forty Two) months from the

date of approval of the Building Plans and/or fulfillment of

the preconditions that the company shall additionally be

entitled to a period of 180 days (―Grace Period‖), after the

expiry of the said commitment period to allow for unforeseen

delays beyond the reasonable control of the company.‖

12. As per the aforesaid clause of the agreement, the possession of the

apartment was to be offered within a period of 42 months from the date

of approval of building plans and or fulfillment of the pre-conditions

imposed thereunder with a grace period of 180 days. Copy of the

building plan approval is available at page no. 236 of the paper book

(Annexure A-23). The said approval has been granted subject to

conditions imposed therein. Clause 17(iv) of the approval dated

23.07.2013 reads as under:

―17(iv) that the colonizer shall obtain the clearance/NOC

as per the provisions of the Notification No. S.O. 1533 (E)

dated 14.09.2006 issued by the Ministry of Environment

and Forest, Government of India before starting the

construction/execution of development works at site.‖

As per the aforesaid condition, the clearance/NOC was to be

obtained from the Ministry of Environment & Forest, Government of

India before starting the construction/execution of the development

works at the site.

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13. Copy of the environment clearance is available at page no.

244 of the paper book (Annexure R-24). Part B of this clearance

contains the general conditions. Condition number VI of the part B of

the environment clearance reads as under.

―vi All other statutory clearances such as the

approvals for storage of diesel from Chief Controller of

Explosive, Fire Department, Civil Aviation Department,

Forest Conservation Act, 1980 and Wildlife (Protection) Act,

1972, Forest Act, 1927, PLPA, 1900, etc. shall be obtained,

as applicable by project proponments from the respective

authorities prior to construction of the project.‖

The above-mentioned condition shows that the respondent

was required to obtain the clearance from the Fire Department in

addition to clearance from other departments. The Fire Fighting Scheme

for this project was approved by Director Haryana Fire Service,

Panchkula on 27.11.2014. Copy of the said approval is available at 255

of the paper book (Annexure R-25).

14. Thus, from the aforesaid documents available on record, it

comes out that the last pre-conditions i.e. Fire Fighting Scheme was

approved by the competent authority on 27.11.2014.

15. In Sudhakar Chawala and others vs. M/s IREO Grace

Realtech Private Limited (Supra), we have taken a view that the deemed

date of the delivery of possession is to be determined from the date

when the excavation work has started which was considered to be the

date of starting the construction after obtaining the approvals but the

Hon‟ble Apex Court in the latest judgment titled as IREO RealTech Pvt.

Ltd. vs. Abhishek Khanna and Others Civil Appeal NO. 5785 of

2019 decided on January 11, 2021 dealing with the same issue has laid

down as under:
BEFORE THE HARYANA REAL ESTATE APPELLATE TRIBUNAL

18. Determination of the date for handing over Possession

The first issue which has been raised by the Appellant -

Developer as also the Apartment Buyers, is the relevant date

from which the 42 months‘ period is to be calculated for

handing over possession. Clause 13.3 of the Agreement states

that the Developer proposed to offer possession of the

apartment to the allottee within a period of 42 months from the

date of approval of the Building Plans and/or fulfillment of the

pre-conditions imposed thereunder, referred to as the

―Commitment Period. The Company would be entitled to a

further ―Grace Period‖ of 180 days‗ after the expiry of the

Commitment Period for unforeseen delays beyond the

reasonable control of the Company. This would work out to 42 +

6 months i.e. 48 months.

18.1 The point of controversy is whether the 42 months‗ period

is to be calculated from the date when the Fire NOC was

granted by the concerned authority, as contended by the

Developer; or, the date on which the Building Plans were

approved, as contended by the Apartment Buyers.

18.2 Section 15 of the Haryana Fire Safety Act, 2009 makes it

mandatory for a Builder/Developer to obtain the approval of the

Fire Fighting Scheme conforming to the National Building Code

of India, and obtain a No Objection Certificate before the

commencement of construction. Section 15 is extracted

hereinbelow for ready reference:

―‘15. Approval of Fire Fighting Scheme and issue of

no objection certificate.—(1) Any person proposing to
construct a building to be used for any purpose other than
residential purpose or a building proposed to be used for
residential purpose of more than 15 meters in height, such as
group housing, multi-storeyed flats, walk-up apartments, etc.
before the commencement of the construction, shall
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apply for the approval of Fire Fighting Scheme

conforming to National Building Code of India, the
Disaster Management Act, 2005 (53 of 2005), the Factories Act,
1948 (Act 63 of 1948) and the Punjab Factory Rules, 1952, and
issue of no objection certificate on such form, alongwith such
field as may be prescribed.
(2) The Director or any officer duly authorised by him
in this behalf, may take cognizance of any application and
issue such instructions and orders regarding the building plan
and for construction by issuing a provisional no objection
certificate before the construction is taken up.
Explanation. –In case any person proposes to increase the
number of floors on any building already constructed in such a
manner that it shall qualify for being termed as a high rise
building, shall before construction, apply for no objection
certificate.
(3) The provisional no objection certificate shall be
issued within 60 days of submission of application along with
such fee, as may be prescribed, giving all the details of the
construction being undertaken as well as the rescue, fire
prevention and fire safety details required to be incorporated
during the period of construction.
(4) During the process of construction, the inspection of
the construction may be conducted and the advice about any
additions, deviations, modifications that are required to be
carried out from the precaution and prevention point of view,
may be tendered. Such advice shall be made on a prescribed
proforma and handed over to the party concerned.
(5) On completion of the construction of the high-rise
building, a no objection certificate shall be obtained. In the
absence of such certificate, the owner shall not occupy, lease or
sell the building.‖
(emphasis supplied)
18.3 Clause 13.3 of the Apartment Buyer‗s Agreement

provides that the 42 months‗ period has to be calculated from

the date of approval of the Building Plans and/or fulfilment of

the pre-conditions imposed thereunder.

18.4 The Building Plans sanctioned by the Directorate of Town

and Country Planning, Haryana contained the Terms &

Conditions of Approval, which included a provision for Fire

Safety contained in Clause (3). The Developer was directed to

submit Fire Safety Plans indicating the complete Fire Protection

Arrangements, and means of escape/access for the proposed

building with suitable legend and standard signs.

Clause 3 of the Building Plans contained a provision for

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Fire Safety, which reads :

―‘3. FIRE SAFETY

On receipt of the above request the Commissioner, Municipal
Corporation, Gurgaon after satisfying himself that the entire fire
protection measures proposed for the above buildings are as
per NBC and other Fire Safety Bye Laws, and would issue a
NOC from Fire safety and means of escape/access point of
view. This clearance/NOC from Fire Authority shall be
submitted in this office along with a set of plans duty signed by
the Commissioner, Municipal Corporation, Gurgaon within a
period of 90 days from the date of issuance of sanction of
building plans. Further, it is also made clear that no permission
for occupancy of the building shall be issued by Commissioner,
Municipal Corporation, Gurgaon unless he is satisfied that
adequate fire fighting measures have been installed by you and
suitable external fire fighting infrastructure has been created at
Gurgaon, by Municipal Corporation, Gurgaon. A clearance to
this effect shall be obtained from the Commissioner, Municipal
Corporation, Gurgaon before grant of occupation certificate by
the Director General.‖

18.5 On receipt of the Fire Plans, the Commissioner,

Municipal Corporation, Gurgaon, after satisfying himself with

the entire fire protection measures as in conformity with the

National Building Code, 2005 (―NBC‖) and the Fire Safety Bye-

Laws, would issue an NOC for Fire Safety. This NOC/Clearance

was required to be submitted before the Municipal Corporation,

within a period of 90 days‗ from the issuance of the sanctioned

Building Plans.

18.6 Clause 17(iv) of the sanctioned Plan stipulated that the

Developer shall obtain an NOC from the Ministry of

Environment & Forests, before starting the

construction/execution of development works at site.

―‘17 (iv) That the Developer shall obtain the clearance/NOC

as per the provisions of the Notification No. S.O. 1533(E) dated
14.09.2006 issued by Ministry of Environment and Forest,
Government of India before starting the construction/execution
of development works at site.‖
(emphasis supplied)

18.7 The Environmental Clearance granted by the Ministry of

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11

Environment & Forest Government of Haryana on 12.12.2013

required the Developer to submit a copy of the Fire Safety Plan

approved by the Fire Department, before commencing

construction of the project.

General Condition (vi) under Part B of the Environmental

Clearance stipulated that the Developer shall obtain all other

statutory clearances, including the approval from the Fire

Department, prior to construction of the project.

Clause (vi) provides that :

“(vi) All other statutory clearance such as the approvals for

storage of diesel from Chief Controller of Explosive, Fire
Department, Civil Aviation Department, Forest Conservation
Act, 1980 and Wildlife (Protection) Act, 1972, Forest Act, 1927,
PLPA 1900 etc. shall be obtained as applicable by project
proponents from the respective authorities prior to construction
of the project.‖
(emphasis supplied)

18.8 We are of the view that it was a mandatory

requirement under the Haryana Fire Safety Act, 2009 to obtain

the Fire NOC before commencement of construction activity.

This requirement is stipulated in the sanctioned Building Plans,

as also in the Environment Clearance.

18.9 The 42 months‗ period in Clause 13.3. of the Agreement

for handing over possession of the apartments would be

required to be computed from the date on which Fire NOC was

issued, and not from the date of the Building Plans being

sanctioned.

18.10 In the present case, the Developer obtained approval

of the Building Plans from the Directorate, Town and Country

Planning, Haryana, on 23.07.2013. The Developer applied for

issuance of Fire NOC for the Fire Fighting Scheme of the Group

Housing Colony within the 90 days period before the Director,

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12

Fire Service, Panchkula.

The Commissioner vide letter dated 30.12.2013 raised 16

objections with respect to the proposed Fire Fighting Plan.

The Developer vide letter dated 22.01.2014 responded to

the objections, submitting that the objections had been cured,

and requested that the approval of the Fire Fighting Scheme be

granted on a priority basis.

The Fire Department informed the Developer vide letter

dated 28.03.2014 that the deficiencies in the application for

Fire NOC had not been cured. The Developer was granted a

further period of 15 days‗ to cure the defects, failing which, its

application would be deemed to be rejected.

The Developer submitted revised drawings as per the

NBC Fire Scheme alongwith its letter dated 18.08.2014. This

letter was received in the office of the Municipal Corporation on

13.10.2014, as per endorsement on the said letter.

18.11 On 27.11.2014, the Director, Haryana Fire Service

granted approval to the Fire Fighting Scheme subject to the

conditions mentioned therein. The computation of the period for

handing over possession would be computed from this date.

The Commitment Period of 42 months plus the Grace Period of

6 months from 27.11.2014, would be 27.11.2018, as being the

relevant date for offer of possession.‖

16. In view of the aforesaid ratio of law laid down by the Hon‟ble

Apex Court the commitment period of 42 months plus the grace period

of six months is to be computed from 27.11.2014 i.e. date of grant of

approval of the Fire Fighting Scheme and the due date for offer of

possession will be 27.11.2018. We are bound by the aforesaid

observations of the Hon‟ble Apex Court. In the impugned order, the ld.
 BEFORE THE HARYANA REAL ESTATE APPELLATE TRIBUNAL

13

Authority has also computed the due date of offer of possession from

the date of approval of Fire Fighting Scheme dated 27.11.2014 and the

due date of delivery of possession has been worked out to be

27.11.2018. Thus, we do not find any illegality in the due date of

delivery of possession determined by the ld. Authority which is fully in

consonance with the aforementioned observations of the Hon‟ble Apex

Court in IREO Real Tech Pvt. Ltd. vs. Abhishek Khanna and Others

case (Supra).

17. Consequently, in view of our aforesaid discussions, the

present appeal is without any merit, the same is hereby dismissed.

However, no order as to costs.

18. Copy of this order be communicated to the ld. Counsel for

the parties/parties and the ld. Authority.

19. File be consigned to the records.

Justice Darshan Singh (Retd.)

Chairman,
Haryana Real Estate Appellate Tribunal,
Chandigarh

Inderjeet Mehta
Member (Judicial)

Anil Kumar Gupta

Member (Technical)
June 03, 2021
Rajni
 BEFORE THE HARYANA REAL ESTATE APPELLATE TRIBUNAL

14

M/s Deepak Land Promtoers Pvt. ltd.

Vs.
M/s Ireo Grace Realtech Pvt. Ltd.
Appeal No. 244 of 2020

Present: None.

The judgment has been pronounced. The appeal stands

dismissed vide our detailed order of even date.

File be consigned to the records.

Justice Darshan Singh (Retd.)

Chairman,
Haryana Real Estate Appellate Tribunal,
Chandigarh

Inderjeet Mehta
Member (Judicial)

Anil Kumar Gupta

June 03, 2021 Member (Technical)
rajni