1. This appeal has been filed by Ms. Neetu Sanjay Gangwar & Anr. (hereinafter referred to as ‘the appellant/allottee’) against judgment and order dated 18.11.2019 passed by the Regulatory Authority (hereinafter referred to as ‘the Regulatory Authority’) in Complaint no. 9201820121 (Neetu Sanjay Gangwar & Anr. Vs. Lucknow Development Authority), whereby the Regulatory Authority directed the respondent to ensure delivery of possession after getting the balance amount, legal and stamp fee and execution of sale deed in accordance with the rules, within 60 days from the date of the order. It was further directed that the promoter/LDA shall ensure payment of interest for delay period i.e. from 10.09.2016 till the date of offer of possession at the rate of MCLR+1%.

2. The facts of the case, in brief, as culled out from the submissions of appellant are that Ms. Neetu Sanjay Gangwar & Anr. were allotted a flat (property no. PJ/PH-2/B-2) in Parijat Housing Scheme, Vikrant Khand, Gomti Nagar, Lucknow by the respondent vide Allotment Letter dated 10.09.2012. The estimated cost of the flat was Rs. 84,50,000/-. The appellant deposited the entire sale consideration of Rs. 84,50,000/- on 29.10.2012. As per Clause 2.4 of the Brochure, the possession of the flat was proposed to be handed over to the allottees within 24 months i.e. till 09.09.2014. The appellant has also deposited the stamp duty and the other charges which are under protest by way of instant appeal, but still the respondent failed to deliver the possession of the flat.

2.1 As the respondent did not offer the possession, the appellant preferred a complaint on 27.09.2018 before the Regulatory Authority seeking possession and delay interest on the deposited amount.

2.2 After filing of complaint by the appellant, the respondent issued a final demand letter for registry on 07.11.2018, demanding additional amount of Rs. 6,76,080/- against extra charges and an amount of Rs. 1,60,625/- was demanded towards enhancement of cost of the unit. The Completion Certificate was not issued for the project till the time of issuance of final demand letter dated 07.11.2018. After passing of the impugned order the respondent again sent a letter on 02.12.2019 containing the same demand as was in letter dated 07.11.2018. In reply to letter dated 02.12.2019, the appellant wrote letter dated 04.01.2020 to the respondent for adjusting the interest awarded by the Regulatory Authority in pursuance to the aforesaid demands raised by the respondent.

2.3 Appellant further submitted that while examining the complaint, the Regulatory Authority granted two years relaxation, rather extended two years period on account of delay in shifting of high tension wire by the LESA passing through the plot in question and granting interest from 10.09.2016 till offer of possession, is perverse as the demand raised vide alleged offer of possession was without receipt of OC/CC from the competent authority and cannot be treated as legal offer of possession.

3. The appellant alleged that the issue of shifting of high tension electric line was well known fact to the LDA from the very beginning or launching of the project i.e. from 2011, when the LDA promised to deliver the possession within 24 months through its brochure. The appellant filed the instant appeal being aggrieved by the direction of Regulatory Authority giving concession of two years while granting interest to the respondent on the following grounds:- 3

A. Because, while passing the impugned judgment and order dated 18/11/2019 learned authority wrongly considered the period with effect from 10/09/2014 to 10/09/2016 as a period consume due to force majeure.

B. Because, while passing the impugned judgment and order dated 18/11/2019 as corrected on 24/02/2020 the learned authority has wrongly given benefit of force majeure for 2 years ignoring the fact that the ground taken by the respondent is not at all covered within the definition of force majeure either contained in RERA Act or in general definition given in the legal dictionaries.

C. Because while passing the impugned judgment and order dated 18/11/2019 as corrected on 24/02/2020 learned authority failed to consider that the issue of high tension line was neither the unforeseen circumstances nor the time consumed in shifting of high tension line was beyond the control of the respondent.

D. Because, while passing the impugned judgment and order dated 18/11/2019 learned authority failed to consider that the respondent can't charge GST and other taxes from the 18/12/2018.

E. Because, GST amount cannot be charged with effect from 18/12/2018 as the appellant had already deposited the full sale consideration amount towards the allotted unit in 2012 itself.

F. Because, GST amount cannot be charged with effect from 18/12/2018 as the building in question was not complete and possession of the flat has not been offered.

G. That the interest on GST has been wrongly charged as same was not having been accrued, particularly where the complete consideration amount was already deposited by the appellant in 2012 itself.

H. Because, while passing the impugned judgment and order dated 18/11/2019 learned authority failed to consider that the appellant is also entitled for the same rate of Interest which he has paid to the respondent in view of the provisions contained under Section 2(za)(i) of the RERA Act as well as in equitable consideration.

I. Because, while passing the impugned judgment and order dated 18/11/2019 as corrected on 24/02/2020 learned authority has read the judgment passed in Ghaziabad Development Authority Vs. Shakuntala Rohtagi (Civil Appeal No 6501/2002) out of context in ignorance of the subsequent judgments pronounced by Hon'ble Supreme Court of India.

J. Because, while passing the impugned judgment and order dated 18/11/2019 as corrected on 24/02/2020 the learned Authority failed to consider that issuing offer of possession is one thing and handing over of the possession is another.

K. Because, the learned Authority without considering the provisions contained Under Section 18 of the RERA Act, 2016 has directed the Respondent to pay interest till the date of offering of the possession of the flat whereas the direction ought to have been issued to pay the interest till the date the actual physical possession of the flat is handed over to the Appellant or till the date of Execution of Sale Deed of the allotted unit in favour of the allottee.

L. Because, while passing the impugned judgment and order dated 18/11/2019 as corrected on 24/02/2020 learned authority failed to consider that the rate of interest prescribed by means of notification dated 17/10/2018 has wrongly recorded that the property in question has been given to the appellant on the provisionally agreed rate.

M. Because, while passing the impugned judgment and order dated 18/11/2019 as corrected on 24/02/2020 learned authority failed to decide appropriate rate of interest for compensation because, the rate of interest shall be the same on which the respondent has received the interest on account of delay in making payment in view of the provisions contained under Section 2(za) of the RERA Act, 2016.

N. Because, while passing the impugned judgment and order dated 18/11/2019 as corrected on 24/02/2020 learned authority failed to consider that the Appellant has been wrongly charged interest at the rate of 15% per annum despite there was no delay on the part of appellant in making payment and the appellant has deposited the aforesaid amount by obtaining a loan from the bank.

O. Because, while passing the impugned judgment and order dated 18/11/2019 as corrected on 24/02/2020 learned authority failed to consider that the respondent charges interest at the rate of 15% per annum in case of default by the appellant in payment of its dues as such it is equitable that the appellant be given the same Interest which he is liable to pay in case of his default.

P. Because, the impugned judgment and order dated 18/11/2019 as corrected on 24/02/2020 to the extent it has been challenged suffers from hostile discrimination made by the Learned Authority by not granting the equal interest to the Appellant which has been charged by the Respondent in the past.

Q. Because, the impugned judgment and order dated 18/11/2019 as corrected on 24/02/2020 to the extent it has been challenged has been passed ignoring the provisions contained under the RERA Act.

R. Because, illegal demand have been made by the respondent regarding payment of Rs 55,206.00 towards free hold charges which is made in reference of government order number 72/3488/3-1-14-30vividh/2014 dated December 2014. Wherein as per clause 5.1.2.1(II) 2 percent of the current value of the property is applicable as free hold charges. Which is applicable in appellant’s case but respondent is claiming 4 percent as free hold charges from the appellant. Which is an Illegal demand made by the respondent subsequent to the passing of the impugned Judgment and Order Dated 18/11/2020.

S. Because, the impugned judgment and order dated 18/11/2019 as corrected on 24/02/2020 to the extent it has been challenged suffers from non-application of judicial mind.

T. Because, the impugned judgment and order dated 18/11/2019 as corrected on 24/02/2020 to the extent it has been challenged is based upon perverse finding.”

4. The appellant has prayed the following reliefs:-

“(i) Wherefore, it is most respectfully prayed that this Hon'ble Tribunal may graciously be pleased to set aside the impugned judgment and order dated 18/11/2019 as corrected on 24/02/2020 to the extent that appellant has been directed to pay interest on the amount due on part of appellant at the rate MCLR + 1% in the interest of Justice.

(ii) Further this Hon'ble Tribunal may graciously be pleased to modify the impugned judgment and order dated 18/11/2019 as corrected on 24/02/2020 to the extent that the respondent be directed to pay Interest to the Appellant at the rate of 15% per annum from the date of deposit of the aforesaid amount till the actual payment of the same, in the interest of Justice.

(iii) Further this Hon'ble Tribunal may graciously be pleased to modify the impugned judgment and order dated 18/11/2019 as corrected on 24/02/2020 to the extent that the respondent be directed to pay interest to the complaint on deposited amount with effect from 10/09/2016 to till date of giving actual possession of the flat or execution of the Sale Deed of the flat in favour of the appellant, whichever is later, in the interest of Justice.

(iv) Further this Hon'ble Tribunal may graciously be pleased to quash the offer of possession letter date 02/12/2019 and quash the Illegal demand made by the respondent in respect of Free hold charges, Interest and GST and consequently direct the respondent to refund the Excess amount charged towards the Free hold charges, interest and GST In the Interest of Justice.

(v) Such other orders as this Hon'ble Tribunal may deem fit and proper under the circumstances of the case so as to protect and safeguard the Interest of the appellant may also be passed in the interest of justice.”

5. Learned counsel for the respondent filed its objections denying the allegations made by the appellant in the appeal and submitted that the appellant has prayed that he may be granted delayed interest from 10.09.2014 which is not specified in the terms of the Allotment Letter but only presumed by the appellant as well as by the Regulatory Authority. He further submitted that there was no date fixed for possession under the agreement and only a tentative time was provide and also no escalated price has been charged by the respondent. Learned counsel for the respondent submitted that the respondent kept on making all possible endeavours with the Electricity Department for shifting of the high tension line. The respondent averd that final checklist with outstanding amount was served upon the appellant for the purposes of registry on 07.07.2018. Sale deed has also been executed in favour of the appellant on 06.01.2022, and the appellant deliberately is not taking the physical possession. Learned counsel for the respondent further submitted that the completion certificate has already obtained from the competent authority on 17.02.2020. The respondent admitted that the final demand issued by the respondent is for the sole purpose of depositing the requisite dues for getting the sale deed registered and then taking over the possession itself.

6. Learned counsel for the appellant filed reply to the objection and while reiterating the averments made in the appeal submitted that the cause mentioned by the respondent for delay doesn’t fall in the category of force majeure.

7. Heard Shri Shashank Singh, learned counsel for the appellant and Shri Abhishek Khare, learned counsel for the respondent.

7.1 Shri Shashank Singh, learned counsel for the appellant submitted that in instant case the grievance of the appellant is with respect to the concession of two years granted by the Regulatory Authority on account of shifting of high tension wire from the period of delay and the appellant be paid interest from the promised date of possession till the date of actual possession and not as per direction made in the impugned order dated 18.11.2019, wherein the interest @ MCLR+1% has been granted from 10.09.2016 till offer of possession whereas it ought to have been from 14.09.2014 till actual possession of the unit. Learned counsel for the appellant placed reliance on the judgment of Kirti Srivastava Vs. Vice Chairman, Lucknow Development Authority in appeal No 142 of 2019 (annexure No 2 of reply to the objections of the respondent) and submitted that issue of shifting ground of High Tension Wire has been rejected by this Tribunal while examining the issue No.6 in the said judgment.

7.2 Learned counsel for the respondent submitted that OC/CC of the project in question was received from competent authority on 17.02.2020 whereas offer of possession was given to the appellant on 17.11.2018 and after receipt of the OC/CC, the appellant was requested vide letter dated 12.10.2020 for providing necessary stamp fee, GST etc. for execution of the conveyance deed and the same was provided. Appellant vide letter 20.11.2020 informed the Estate Officer regarding the compliance of the letter dated 12.10.2020. Lucknow Development Authority vide letter dated 02.02.2021 demanded an amount of Rs 55,206/- towards freehold charges in pursuance to the Government Order dated 11.12.2014. The appellant deposited the same on 24.02.2021. Section Officer of the Estate Department vide letter dated 22.11.2021 asked the appellant to be present in his office for affixing of thump impression/signatures on the conveyance deed and the same was immediately complied by the appellant. Thereafter deed was executed on 06.01.2022 and the possession was given thereafter on 13.06.2022.

7.3 Appellant, at this stage submitted that the delay tactics have been adopted by the respondent which causes loss to the appellant and hence the appellant is entitled for interest till providing possession as after execution of the sale deed on 06.01.2022, respondent took about six months in giving physical possession.

7.4 Learned counsel for the respondent has not placed reliance on any judgment in support his submissions.

8. In order to examine the grounds taken by the appellant and the issue involved in the instant appeal, we deem it proper to frame the following issues:-

(1) Whether the Regulatory Authority was required to examine the complaint of respondent/allottee only on the basis of agreed terms and conditions mentioned in the Brochure read with Procedure, Rules and Regulations of Lucknow Development Authority or ought to examine and decide the complaint in pursuance to the provisions of the Act, & Rules, 2016

(2) Whether the project in question of the Lucknow Development Authority/appellant is delayed

(3) Whether it is necessary and mandatory for the Promoter to have first Completion Certificate (CC) and Occupation Certificate (OC) under the provisions of the Act of 2016 and Rules of 2016 read with the U.P. Apartment (Promotion of Construction, Ownership and Maintenance) Act 2010 before offering possession as well as asking the allottee to settle the account and satisfy the final demand

(4) Whether interest for the delay in completion of the Project granted by the Regulatory Authority is just, proper and in consonance with the provisions of the Act 2016

(5) Whether cognizance by the Regulatory Authority regarding the time taken in shifting of high tension wire by the LESA from the land of the project and concession granted by the Regulatory Authority for two years in completion of the project treating the said period as force majeure, was justified and is in accordance with the provisions of the Act 2016

9. Vide issue no. (1) we are required to examine as to whether the Regulatory Authority was required to examine the complaint of respondent/allottee only on the basis of agreed terms and conditions mentioned in the Brochure read with Procedure, Rules and Regulations of Lucknow Development Authority or ought to examine and decide the complaint in pursuance to the provisions of the Act, & Rules, 2016.

9.1 The Lucknow Development Authority (LDA) took a plea that present case ought to have been governed with the already agreed terms and conditions i.e. terms and conditions mentioned in the Brochure of the Scheme, read with Rules and Regulations of the LDA, but the Regulatory Authority failed to consider the same and has taken into account certain conditions in isolation and rest of the provisions have been ignored, which is impermissible, further Regulatory Authority failed to consider that in none of the conditions as per agreed terms, the appellant was entitled for any compensation/interest, in case the appellant decides to receive possession of the flat despite delay in handing over of possession.

9.2 The Lucknow Development Authority placed reliance on its Brochure and submitted that the possession of the flat was proposed to be provided to the allottees within 24 months. Learned counsel for the respondent further submitted that in the Brochure, it is specifically provided that after allotment order conditions/rules applicable in Lucknow Development Authority or the State Government shall be binding upon the allottee.

9.3 LDA has further submitted that the procedure for allotment of residential buildings of LDA was formulated by the Board of LDA in the year 1993, and the same are binding upon the allottee as per clause 13.1 of the Brochure, and condition no. 38.1 of the same provides that in case construction of the buildings is delayed for the reasons beyond its control then in that case LDA shall not be responsible for the delay, and in case, the amount deposited by the allottee remained in the account of LDA for a period of one year or more, then in that case simple interest at the @ 4%. p.a. shall be applicable on the deposited amount. The Procedure of 1993 was superseded in the year 2016 by means of Lucknow Development Authority procedure for registration and allotment of residential properties, 2016, and vide condition no.14.2, it is provided that in case the Lucknow Development Authority (LDA) did not deliver the possession of the property within the time limit prescribed then the allottee may demand the refund of deposited amount with an interest at the rate of 9% p.a., and in case allottee accepts the possession despite of delay, no interest/compensation shall be payable to such an allottee. Thus the allottee in this case is entitled for only refund of amount with interest at the rate of 4% p.a. in view of the terms and conditions applicable on the date of allotment, and after coming into force of 2016 Procedure simple interest at the rate of 9%, if he chooses to withdraw from the project. Further in none of the conditions as per the agreed terms, the appellant was entitled for any compensation/interest in case the appellant decides to receive possession of the flat despite of delay in handing over of possession and therefore, the appellant who has consented on oath to abide by the provisions contained in the rules, while submitting application duly supported with an affidavit for allotment of a residential unit in the scheme in question, cannot claim interest & possession both, contrary to the undertaking given on oath.

9.4 On examination of the Brochure we found that in clause 13.1 it is mentioned that after allotment other conditions/rules applicable in Lucknow Development Authority (LDA) and any amendment/supersession in such Rules by the LDA or the State Government shall be binding upon the allottee, but specific conditions/rules have not been mentioned. Even it is also not mentioned in the Brochure, from where an applicant/allottee can find those conditions/rules. The Lucknow Development Authority (LDA) cannot take advantage of clause 13.1 of the Brochure, while applying procedure for allotment of residential building of LDA formulated in the year 1993 or subsequent new procedure framed in the year 2016, specially with respect to the rate of interest to be paid by the LDA in case the allottee chooses to seek refund on account of delay in completion of the project or no interest for delay in completion of Project, if allottee chooses to opt or decide to take possession of the unit even in the event of delay in completion of the Project.

9.5 Another important aspect of the matter is that the grant of interest to the allottee by the Lucknow Development Authority, if the allottee opts to withdraw from the project on account of delay, and providing no interest to the allottee in case he/she takes possession of the apartment in the project, is in violation as well as contrary to the provisions of sub-section (2) of Section 4 of the Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010 (hereinafter referred to as ‘the U.P. Apartment Act, 2010’). In order to appreciate sub-section (2) of Section 4 of the U.P. Apartment Act, 2010, the same is reproduced as follows:--

“CHAPTER II

DUTIES AND LIABILITIES OF PROMOTERS

4. General liabilities of promoter.-- ………………

(2) Every promoter shall,

(a) specify in writing the date by which construction of the apartment is to be completed subject to force majeure clause and intimation sent to such purchaser;

(b) declare the penalty for delay in completion of the building and also penalty in the event of non-payment of instalment by the purchaser;

(c) declare the conditions for cancellation or withdrawal of allotment and the extent of compensation either way in the event of violations of any of the conditions;

(d) give on demand by the intending purchaser, on payment of photocopying charges, true copies of the documents referred to in this section.

The provisions of Sub Section (2) (b) of Section 4 of the Apartment Act, 2010 mandates the promoter to declare the penalty for delay in completion of the building and also penalty in the event of non-payment of instalment by the purchaser, meaning thereby that in the Brochure a promoter is required to mention about the penalty for the delay in completion of the building and also penalty in the event of non-payment of instalment by the purchaser. In the present case the Lucknow Development Authority in clause 2.1 of the Brochure only mentioned the obligation of the allottee to make payment of the installment in time and in case of failure the allottee has to pay penalty at the rate of 15% per annum and if due installment and penalty with interest are not paid within 90 days then his/her reservation/allotment was liable to be cancelled, whereas as per provisions of sub-section (2)(b) of Section 4 of the Apartment Act, 2010, the promoter was to declare and specifically mention the penalty to be paid by it, in case of delay in completion of the project. Thus the concerned provisions of the Procedure of 2016, is in violation of the Apartment Act, 2010, and it being a statutory organization, the Lucknow Development Authority is required to follow the concerned laws in its words and spirit.

9.6 Having examined the terms and conditions of the Registration Booklet/Agreement, we would like to examine the laws on contracts. In this connection, it is useful to note what Chitty has to say about the old ideas of freedom of contract in modern times. The relevant passages are to be found in Chitty on Contracts, Twenty-fifth Edition, Volume I, in paragraph 4, and are as follows :-

"These ideas have to a large extent lost their appeal today. “Freedom of contract”, it has been said, “is a reasonable social ideal only to the extent that equality of bargaining power between contracting parties can be assumed, and no injury is done to the economic interests of the community at large.” Freedom of contract is of little value when one party has no alternative between accepting a set of terms proposed by the other or doing without the goods or services offered. Many contracts entered into by public utility undertakings and others take the form of a set of terms fixed in advance by one party and not open to discussion by the other. These are called “contracts d’adhesion” by French lawyers. Traders frequently contract, not on individually negotiated terms, but on those contained in a standard form of contract settled by a trade association. And the terms of an employee’s contract of employment may be determined by agreement between his trade union and his employer, or by a statutory scheme of employment. Such transactions are nevertheless contracts notwithstanding that freedom of contract is to a great extent lacking.

Where freedom of contract is absent, the disadvantages to consumers or members of the public have to some extent been offset by administrative procedure for consultation, and by legislation. Many statutes introduce terms into contracts which the parties are forbidden to exclude, or declare that certain provisions in a contract shall be void. And the courts have developed a number of devices for refusing to implement exemption clauses imposed by the economically stronger party on the weaker, although they have not recognised in themselves any general power (except by statute) to declare broadly that an exemption clause will not be enforced unless it is reasonable. Again, more recently, certain of the judges appear to have recognised the possibility of relief from contractual obligations on the ground of “inequality of bargaining power”.

9.7 Now turning to the question regarding ex-facie one sided, unfair and unreasonable agreement terms of a contract, the Hon'ble Supreme Court in LIC of India and Anr. Vs. Consumer Education & Research Centre & Ors., (1995)5 SCC 482 [LQ/SC/1995/657] , decided on 10th May 1995, was pleased to observe that :-

"in dotted line contracts there would be no occasion for a weaker party to bargain or to assume to have equal bargaining power. He has either to accept or leave the services or goods in terms of the dotted line …….. imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line………"

9.8 Recently, the Hon'ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, II (2019) CPJ 34(SC) [LQ/SC/2019/611] , rejected the plea of the builder that it should not be directed to pay interest at the rate of 10.7% as the agreement provided for 6% interest. The Hon'ble Supreme Court observed that:-

“6.7. A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the Agreement dated 08.05.2012 are ex-facie one-sided, unfair, and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder.

7. In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyer’s Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent – Flat Purchaser. The Appellant – Builder could not seek to bind the Respondent with such one-sided contractual terms.”

9.9 Subsequently, in Wg. Cdr. Arifur Rahman Khan & Ors. Vs. DLF Southern Homes Pvt. Ltd., reported in (2020) SCC Online 667 affirming the view taken in the Judgment in Pioneer’s case (supra) the Hon'ble Supreme Court held that the term of the agreement authored by the Developer does not maintain a level platform between the Developer and the flat purchaser. The stringent terms imposed on the flat purchaser are not in consonance with the obligation of the Developer to meet the time lines for construction and handing over possession, and do not reflect an even bargain. The failure of the Developer to comply with the contractual obligation to provide the flat within the contractually stipulated period, would amount to a deficiency of service. Given the one-sided nature of the Apartment Buyer’s Agreement, the consumer fora had the jurisdiction to award just and reasonable compensation as an incident of the power to direct removal of deficiency in service.

9.10 Moreover, Section 23 of the Contract Act, 1872 provides that what consideration and objects are lawful, and what are not. It says that the consideration or object of an agreement is lawful, unless, it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies, injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void to the extent it is “opposed to Public Policy”.

9.11 The expression "public policy" or "opposed to public policy" has not been defined in the Contract Act. In R.B. Singh Vs. State of U.P. a Division Bench of the Hon'ble Allahabad High Court explained the meaning of word "Policy" and "Public Policy" as defined in various Dictionaries-

“30. In Grocier New Webster's Dictionary (page 304) "Policy" has been defined as a selected, planned line of conduct in the light of which individual decisions are made and coordination achieved. In Legal Glossary (1993, page 250) "policy" means a course of action adopted as advantageous or expedient. According to the Oxford Dictionary the word "Policy" means political sagacity, State-craft, prudent conduct, sagacity, craftiness, 'course of action adopted by Government'. According to Webster's New International Dictionary "policy" means a settled or definite course or method adopted and followed by a Government, institution, body or individual; a civil or ecclesiastical policy; Government; the science of Government.

31. In Law Lexicon with Legal Maxims it has been mentioned that the general head of "public policy" covers a wide range of topics, such as for example, trading with the enemy in time of war, stifling prosecutions, chaperty and maintenance, and various other mater's; it has even been said in the House of Lords that public policy is always an unsafe and treacherous ground for legal decision. In Black's Law Dictionary "Public Policy" mean community common sense and common conscience, extended and applied throughout the State to matters of public morals, health, safety, welfare, and the like; it is that general and well settled public opinion relating to man's plan, palpable duty to his fellowmen, having due regard to all circumstances of each particular relation and situation. In Words and Phrases (West Publishing Co.) the word "public policy" generally means that imports something that is uncertain and fluctuating, varying with the changing economic needs, social customs and moral aspiration of the people. Lord Wright in his Legal Essays and Addresses (Vol. III, pages 76 and 78) stated that public policy like any other branch of the common law ought to be and I thing is, governed by the judicial use of precedents….. If it is said that rules of public policy have to be moulded to suit new conditions of a changing world, that is true, but the same is true with the principles of the canon law generally; Lord Lindley held in Janson v. Driefontein Consolidated Mines Ltd. that "a contract or other branch which is against public policy i.e. against the general interest of the country is illegal."

9.12 In Gherulal Parakh v. Mahadeodas Malya, AIR 1959 SC 781 [LQ/SC/1959/38] the Hon’ble Supreme Court while defining the word "Public Policy" or the "Policy of Law" has held as under :-

"Public policy or the policy of the law is an illusive concept; it has been described as "untrustworthy guide", "variable quality", "uncertain one", "unruly horse", etc. The primary duty of a Court of Law is to enforce a promise which the parties have made and to uphold the sanctity of contract which form the basis of society, but in certain cases, the court may relieve them of their duty on a rule founded on what is called the public policy for want of better words Lord Atkin describes that something done contrary to public policy is a harmful thing, but the doctrine is extended not only to harmful cases but also to harmful tendencies; this doctrine of public policy is only a branch of common law, and just like any other branch of common law it is governed by precedents; the principles have been crystallized under different heads and though it is permissible for courts to expound and apply them to different situations, it should only be invoked in clear and incontestable cases of harm to the public."

9.13 In the case of Central Inlad Water Transport Corpn. v. Brojo Nath Ganguly, (1986) 3 SCC 591 the Hon'ble Supreme Court explained the above expressions and held-

"The Indian Contract Act does not define the expression "public policy" or "opposed to public policy". From the very nature of things, the expressions "public policy", "opposed to public policy" or "contrary to public policy" are incapable of precise definition. Public policy, however, is not the policy of a particular government. It connotes some matter which concerns the public good and the public interest. The concept of what is for the public good or in the public interest or what would be injurious or harmful to the public good or the public interest has varied from time to time."

The Hon'ble Supreme Court, after discussing the different schools of thought including landmark judgments on the expression of "public policy", further explained in the above case that-

"It is thus clear that the principles governing public policy must be and are capable, on proper occasion, of expansion or modification, Practices which were considered perfectly normal at one time have today become obnoxious and oppressive to public conscience. If there is no head of public policy which covers a case, then the court must in consonance with public conscience and in keeping with public good and public interest declare such practice to be opposed to public policy. Above all, in deciding any case which may not covered by authority our courts have before them the beacon light of the Preamble to the Constitution. Lacking precedent, the court can always be guided by that light and the principles under lying the Fundamental Rights and the Directive Principles enshrined in our Constitution".

9.14 Thus, where the terms of a contract show that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder, then certainly the contractual terms of the Agreement are one sided, unfair and unreasonable. It would also be referred as an unconscionable bargain. An unconscionable bargain would be one which is irreconcilable with what is right or reasonable or the terms of which are so unfair and unreasonable that they shock conscience of the Court.

9.15 Now again the question is that under which head an unconscionable bargain would fall If it falls under the head of undue influence, it would be voidable but if it falls under the head of being opposed to public policy, it would be void. The word "unconscionable" is defined in the Shorter Oxford English Dictionary, 3rd Edn., Vol. II, p. 2288, when used with reference to actions etc, as "showing no regard for conscience; irreconcilable with what is right or reasonable".

9.16 The Hon'ble Supreme Court in the case of DLF Universal Ltd. Vs. Town & Country Planning Deptt. reported in (2010) 14 SCC was pleased to quote in the heading “Interpretation of contract” as follows:-

“Interpretation of contract

10. It is settled principle in law that a contract is interpreted according to its purpose. The purpose of a contract is the interests, objectives, values, policy that the contract is designed to actualize. It comprises joint intent of the parties. Every such contract expresses the autonomy of the contractual parties’ private will. It creates reasonable, legally protected expectations between the parties and reliance on its results. Consistent with the character of purposive interpretation, the court is required to determine the ultimate purpose of a contract primarily by the joint intent of the parties at the time the contract so formed. It is not the intent of a single party; it is the joint intent of both parties and the joint intent of the parties is to be discovered from the entirety of the contract and the circumstances surrounding its formation.

“14. As is stated in Anson’s Law of Contract:

a basic principle of the Common Law of Contract is that the parties are free to determine for themselves what primary obligations they will accept….Today, the position is seen in a different light. Freedom of contract is generally regarded as a reasonable, social, ideal only to the extent that equality of bargaining power between the contracting parties can be assumed and no injury is done to the interests of the community at large.

15. The Court assumes:

that the parties to the contract are reasonable persons who seek to achieve reasonable results, fairness and efficiency…. In a contract between the joint intent of the parties and the intent of the reasonable person, joint intent trumps, and the Judge should interpret the contract accordingly. A party who claims otherwise, violates the principle of good faith.”

9.17 On scrutiny of the terms and conditions of the Brochure and allotment letter, we find that the rate of interest payable by the buyer/allottee to the promoter in case of default in payment works out to much higher and no interest or delayed penalty payable by the promoter to the buyer/allottee in case of default/delayed possession, as provided in the Registration Booklet. It is evident from these terms and conditions of the Demand Letter and the Clauses of Registration Booklet that they do not provide a level playing field between the promoter and the allottee. We feel that this imbalance is on account of the fact that the buyer/allottee has much less bargaining power as compared to the promoter, and since the buyer/allottee had no choice but to accept such “dotted line, one sided, unjust and unreasonable” terms and conditions of the Registration Booklet, and of the allotment/demand letter, as framed by the promoter. Such terms and conditions which are one-sided, unjust and unreasonable cannot be made binding on the allottee.

9.18 In the light of above, we also observe that the promoter in the present case is an undertaking of the State Government having wide powers for acquisition of land and for development of residential projects. The rules, terms & conditions provided in the Registration Booklet and the Demand letter are heavily loaded in favour of the promoter and the buyer is at an obvious disadvantaged position and has no real choice but to agree to the rules, terms & conditions of the Registration Booklet and of the Demand Letter in order to buy a residential flat of his dreams, using his hard earned savings. Such terms and conditions of agreement, called by any name whatsoever, fall in the category of "dotted line" agreements or "one sided, unfair and unreasonable" agreements. Further, the Hon'ble Apex Court in several cases was pleased to observe that an unreasonable, unfair contract or an unreasonable and unfair clause in a contract where Contracting Parties are not equal in bargaining powers and where a man has no choice or rather a meaningful choice but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form as a part of the contract, cannot be allowed to act disadvantageously to the interest of the allottee/home buyer.

9.19 We, thus, hold that Regulatory Authority is required to examine a complaint as per the provisions of the Act, Rules and Regulations and not merely on the basis of the terms and conditions of the Registration Booklet or as provided in the Demand/Allotment Letter only, taking into consideration the observations of Hon'ble Supreme Court in Civil Appeal No.(s). 6745-6749 of 2021 (M/s Newtech Promoters & Developers Pvt. Ltd. Vs. State of U.P. & others) dated 11.11.2021 regarding terms of the contract to the effect that promoter cannot shirk from the responsibilities/liabilities under the Act and the Contractual terms do not have an overriding effect to the retrospective applicability of the authority under the provisions of the Act. Issue no. (1) is accordingly decided against the promoter.

10. Vide Issue No. (2) we are required to examine as to whether the project in question of the Lucknow Development Authority/promoter is delayed.

10.1 From the perusal of the pleadings and documents available on record it is evident that a scheme of multistoried residential apartment known as ‘Parijat Apartment’ was floated by the promoter at Vikrant Khand, Gomti Nagar, Lucknow and the appellant applied for allotment of a residential unit and was allotted a unit vide allotment letter dated 10.09.2012.

10.2 As per clause 2.4 of the Brochure, the possession of the flat was proposed to be handed over to the allottees within 24 months from the date of allotment. The apartment in question was allotted to the appellant on 10.09.2012, therefore the possession was to be handed over by the promoter to the allottee by 09.09.2014. The allottee, after issuance of Allotment Letter dated 10.09.2012, had paid the entire payment as prescribed in the Allotment Letter and the other charges demanded by the respondent. The sale deed was executed on 06.01.2022 and the possession was given thereafter on 13.06.2022.

10.3 Though the proposed period of completion of the project is 24 months and there will always be some variation in the actual time, but an allottee cannot be made to wait indefinitely for handing over of the possession merely on the ground that the time specified is an estimated period. We are of the view that the possession ought to have been given within 24 months + a month or so required for final finishing.

10.4 In view of the above, we hold that even after regular payment made by the allottee there is delay of 7 years & 9 months in obtaining completion certificate by the promoter. Issue no. (2) is decided accordingly.

11. Issue no. (3) is as to whether it is necessary and mandatory for the Promoter to have first Completion Certificate (CC) and Occupation Certificate (OC) under the provisions of the Act of 2016 and Rules of 2016 read with the U.P. Apartment (Promotion of Construction, Ownership and Maintenance) Act 2010 before offering possession as well as asking the allottee to settle the account and satisfy the final demand

11.1 In order to appreciate the issue, we examine Section 2(q) and Section 2(zf) of the Act of 2016, which defines Completion & Occupancy Certificate, the same are extracted as follows:-

“Section 2:- Definitions - In this Act, unless the context otherwise requires,-

…………………………………………………………………………

…………………………………………………………………

“Section 2 (q) "completion certificate" means the completion certificate, or such other certificate, by whatever name called, issued by the competent authority certifying that the real estate project has been developed according to the sanctioned plan, layout plan and specifications, as approved by the competent authority under the local laws;”

“Section 2 (zf) "occupancy certificate" means the occupancy certificate, or such other certificate by whatever name called, issued by the competent authority permitting occupation of any building, as provided under local laws, which has provision for civic infrastructure such as water, sanitation and electricity;”

11.2 On examination of the provisions of Section 2 (q) and Section 2(zf), we find that completion certificate is basically a certificate issued by the competent authority certifying that the Real Estate Project has been developed according to the sanctioned plan, lay out plan and specifications, as approved by the competent authority under the local laws. On the other hand, the occupancy certificate is issued by the competent authority permitting occupation of any building, as provided under local laws, which has provision for civic infrastructure such as water, sanitation and electricity etc.

11.3 Similarly, Section 4(5) of the U.P. Apartments Act, 2010 prescribes for Completion Certificate, which reads as follows:-

“Section 4(5) of the U.P. Apartments Act, 2010:-An apartment may be transferred by the promoter to any person only after obtaining the completion certificate from the prescribed sanctioning authority concerned as per building bye-laws. The completion certificate shall be obtained by promoter from prescribed authority [within the period specified for completion of the project in the development permit or the building permit as the case may be] Provided that if the construction work is not completed within the stipulated period, with the permission of the prescribed authority;

Provided further that if the completion certificate is not issued by the prescribed sanctioning authority within three months of submission of the application by the promoter complete with all certificates and other documents required, the same shall be deemed to have been issued after the expiry of three months.

Explanation: For the purposes of this sub-section "completion" means the completion of the construction works of a building as a whole or the completion of an independent block of such building, as the case may be.”

11.4 Section 4(5) of the U.P. Apartments Act 2010 clearly lays down that an apartment may be transferred by the Promoter to any person (allottee) only after obtaining the C.C. from the prescribed sanctioning authority concerned as per building by-laws. The C.C. is required to be obtained by the Promoter, meaning thereby that Allottee has no role to play in obtaining C.C. from the prescribed authority. A Promoter is required to first obtain C.C./O.C. from the prescribed authority, only thereafter register conveyance deed of the real estate in favour of the Allottee(s) and a legal & habitable possession can be offered to the Allottees.

11.5 The issue of offering handing over possession prior to obtaining occupancy certificate was also examined by the Hon’ble Supreme Court in Civil Appeal Nos. 1232 and 1414-1444 of 2019 R.V. Prasannakumaar and ors. Vs. Mantri Castles Pvt. Ltd. and ors. decided on 11.02.2019 wherein it has been observed that possession cannot be handed over prior to obtaining occupancy certificate.

11.6 In view of the aforesaid analysis, we are of the considered view that as per the provisions of the U.P. Apartments Act, 2010 read with the provisions of Act, 2016, a Promoter is required to offer legal and habitable possession to the allottee only after obtaining CC/OC and ask for clearing dues by raising final demand. Issue no. (3) is answered accordingly.

12. Vide issue no. (4), we are required to examine as to whether interest for the delay in completion of the Project granted by the Regulatory Authority is just, proper and in consonance with the provisions of the Act 2016.

12.1 Section 18 (1) of the Act clearly provides that if an Allottee wishes to withdraw from the Project on the ground that the Promoter is unable to give possession in accordance with the Agreement for Sale within the date specified therein, then the Promoter shall return the amount received from the Allottee in respect of that property with interest and compensation, on the Allottees’ demand. The power of exercising the option of either staying in the Project or for withdrawing from it lies only with the Allottees under the provisions of Section 18 (1) of the Act. Further, Section 19(4) of the Act 2016 gives right to the allottees to claim refund along with interest and/or compensation in case the Promoter fails to give possession of the apartment in accordance with the terms and conditions of Agreement for sale.

12.2 The Hon’ble Bombay High Court in the case of Neelkamal Realtors Suburban Pvt. Ltd. And others Vs. Union of India (2018)1 Bom R 558 observed as follows:-

"Section 18(1)(b) lays down that if the promoter fails to complete or is unable to give possession of an apartment due to discontinuance of his business as a developer on account of suspension or revocation of the registration under the Act or for any other reason, he is liable on demand to the allottees, in case the allottee wishes to withdraw from the project, without prejudice in this behalf including compensation. If the allottee does not intend to withdraw from the project he shall be paid by the promoter interest for every month's delay till handing over of the possession. The requirement to pay interest is not a penalty as the payment of interest is compensatory in nature in the light of the delay suffered by the allottee who has paid for his apartment but has not received possession of it. The obligation imposed on the promoter to pay interest till such time as the apartment is handed over to him is not unreasonable. The interest is merely compensation for use of money".

12.3 Subsequently, in Wg. Cdr. Arifur Rahman Khan & Others Vs. DLF Southern Homes Pvt. Ltd., reported in (2020) SCC Online 667 affirming the view taken in the Judgment in Pioneer’s case (Supra) the Hon’ble Supreme Court held that the term of the agreement authored by the Developer does not maintain a level platform between the Developer and the flat purchaser. The stringent terms imposed on the flat purchaser are not in consonance with the obligation of the Developer to meet the timelines for construction and handing over possession, and do not reflect an even bargain. The failure of the Developer to comply with the contractual obligation to provide the flat within the contractually stipulated period, would amount to a deficiency of service. Given the one-sided nature of the Apartment Buyer’s Agreement, the consumer fora had the jurisdiction to award just and reasonable compensation as an incident of the power to direct removal of deficiency in service.

12.4 Recently the Hon’ble Supreme Court, while dealing with the provisions of Section 18 of the Act, 2016, in the case of M/S Imperia Structures Ltd. Vs. Anil Patni and another, Civil Appeal Nos. 3581-3590 of 2020, decided on 02.11.2020, vide para 23, was pleased to observe that the right so given to the allottee is unqualified and if availed, the money deposited by the allottee has to be refunded with interest at such rate as may be prescribed and the proviso to Section 18(1) contemplates a situation where the allottee does not intend to withdraw from the Project. In that case he is entitled to and must be paid interest for every month of delay till the handing over of the possession. It is upto the allottee to proceed either under Section 18(1) or under proviso to Section 18(1).

12.5 U.P. Government framed "Uttar Pradesh Real Estate (Regulation and Development) (Agreement for Sale/Lease) Rules, 2018" (hereinafter referred to as Rules, 2018), wherein under Rule 9.2(ii) and 9.3(i), the rate of interest payable by the promoter or by the allottee respectively are defined in case of default by either of the party. These Rules are extracted below:-

Rule 9.2(ii)

The Allottee shall have the option of terminating the Agreement in which case the Promoter shall be liable to refund the entire money paid by the Allottee under any head whatsoever towards the purchase of the apartment, along with interest at the rate equal to MCLR (Marginal Cost of Lending Rate) on home loan of State Bank of India + 1% unless provided otherwise under the Rules, within forty-five days of receiving the termination notice:

Provided that where an Allottee does not intend to withdraw from the Project or terminate the Agreement, he shall be paid, by the Promoter, interest at the rate prescribed in the Rules, for every month of delay till the handing over of the possession of the Apartment/Plot, which shall be paid by the Promoter to the Allottee within forty-five days of it becoming due.

Rule 9.3

The Allottee shall be considered under a condition of Default, on the occurrence of the following events

Rule 9.3(i)

In case the Allottee fails to make payments for 2(two) consecutive demands made by the Promoter as per the Payment Plan annexed hereto, despite having been issued notice in that regard the Allottee shall be liable to pay interest to the promoter on the unpaid amount at the rate equal to MCLR (Marginal Cost of Lending Rate) on home loan of State Bank of India + 1% unless provided otherwise under the Rules. The Promoter must not be in default to take this benefit.

12.6 On examination, we find that these Rules-2018 notified by U.P. Government are in consonance with the definition of interest as provided in Section 2(za) of the Act, in as much as that the interest chargeable from the allottee by the promoter, in case of default in payment as per demand, is equal to the rate of interest which the promoter is liable to pay to the allottee, in case of default/delayed possession on the part of promoter.

12.7 We have come across various orders of the Regulatory Authority wherein it had granted interest at the rate of MCLR+1% per annum in case of delayed projects and had an occasion to examine the issue of rate of interest at MCLR+1% awarded by the Regulatory Authority in Appeal No. 295 of 2019 (U.P. Avas Vikas Parishad Vs. Devesh Kumar Tiwari) decided on 20.02.2020 and held as under:-

“We feel that this imbalance is on account of the fact that the buyer/allottee has much less bargaining power as compared to the seller in the real estate market and therefore the buyers/allottees have no choice but to sign on such "dotted line", "one sided, unfair and unreasonable" terms and conditions/Agreements. We are therefore of the view that the rate of MCLR +1% , as prescribed by the Government and as being ordered by the Regulatory Authority, be payable from the date of deposit of money in case the allottee wishes to withdraw from the project; and from the specified/expected date of possession in case the allottee wishes to stay in the project, would balance the equities and are just and fair and will fall within the term "interest at such rate as may be prescribed" as used in Sections 12, 18 & 19.........”

12.8 The Hon’ble Supreme Court in Civil Appeal Nos. 4910- 4941/2019 DLF Homes Panchkula Pvt. Ltd. Vs. D. S. Dhanda etc.etc. with Civil Appeal Nos. 4942-4945/2019 DLF Homes Panchkula Pvt. Ltd. Vs. Sudesh Goel etc. decided on 10.05.2019 held in para 3 of the judgment as under:-

“…… We feel it appropriate that, considering that the subject units in question are dwelling units, in a residential housing project, the rate of interest for house building loan for the corresponding period in a scheduled nationalized bank (take, State Bank of India) would be appropriate and logical, and, if floating/varying/different rates of interest were/are prescribed, the higher rate of interest should be taken for this instant computation.”

12.9 Further, an allottee deposits amount under the hope and trust that he/she will get the flat within the time schedule advertised at the initial stage. There may be certain cases where allottees might be residing in rented houses and they might have managed their financial position in such a manner that after deposit of amount, they will get flats of their own and thereafter they will be free from payment of rent as then they will shift from rented houses to allotted flats but on account of inordinate delay in delivery of possession of allotted flats, their financial calculations and legitimate expectations stand frustrated causing various types of financial losses to them. On the other hand once the promoter/builder made offers and same are accepted by the allottees with legitimate expectation, the obligation cast upon the promoter/builder is to complete the same within the time schedule mentioned in the offer and if they fail to discharge the same the affected allottees are entitled to the interest and/or compensation for delayed delivery of possession, as the allottees have parted with money which was earning interest. If an allottee chooses to remain in the project and in case the allottee seeks refund then he is entitled for interest on the deposited amount and/or compensation in accordance with the provisions of the Act 2016, which in our considered view will be in accordance with the principles of equity as well.

12.10 In view of the aforementioned, we are of the view that the rate of interest i.e. MCLR+1% granted by the Regulatory Authority for delayed possession is fair, just and reasonable – as it balances the equities between the parties and the Regulatory Authority’s action is in accordance with the provisions of the Act. Issue no. (4) is decided accordingly.

13. Vide Issue No. (5) we are required to examine as to whether cognizance by the Regulatory Authority regarding the time taken in shifting of high tension wire by the LESA from the land of the project and concession granted by the Regulatory Authority for two years in completion of the project treating the said period as force majeure, was justified and is in accordance with the provisions of the Act 2016.

13.1 The Regulatory Authority, while examining the complaint of the appellant framed 5 issues. Issue nos. 3 and 4 are relevant for examining the grievance of the appellant in the instant appeal. Issue nos. 5 and 6 are being reproduced as under:--

1. Whether the project of the respondent is delayed or not and if yes, for which period

2. Whether the LDA is entitled for relief of the said period or not

13.2 The Regulatory Authority, while examining issue no. 3 (at page no. 4 of the impugned order), taking note of the Brochure, observed that the allotment has been issued to the complainant on 10.09.2012, therefore, the possession was required to be given to the complainant by 10.09.2014. The Regulatory Authority also took note of the site inspection carried out by the Regulatory Authority on 03.05.2019, and on the basis of that inspection held that the project of the respondent is delayed by about 5 years.

13.3 The Regulatory Authority while examining issue no. 4 (at page no. 4 of the impugned order), taking into consideration the cognizance of the issue raised by the LDA regarding force majeure due to time spent on shifting of high tension wire passing over the land of the project, granted two years’ concession of delay treating the said period as force majeure.

13.4 We have perused the definition of force majeure as given in Section 6 of the Act of 2016 and the same is reproduced as follows for the ease of reference:-

Section 6 "Extension of registration" -

The registration granted under section 5 may be extended by the Authority on an application made by the promoter due to force majeure, in such form and on payment of such fee as may be specified by regulations made by the Authority:

Provided that the Authority may in reasonable circumstances, without default on the part of the promoter, based on the facts of each case, and for reasons to be recorded in writing, extend the registration granted to a project for such time as it considers necessary, which shall, in aggregate, not exceed a period of one year:

Provided further that no application for extension of registration shall be rejected unless the applicant has been given an opportunity of being heard in the matter.

Explanation.- For the purpose of this section, the expression "force majeure" shall mean a case of war, flood, drought, fire, cyclone, earthquake or any other calamity caused by nature affecting the regular development of the real estate project.

13.5 The term “Force Majeure” is defined in the Concise Law Dictionary by P. Ramanatha Aiyar as follows:-

Force Majeure – Irresistible force or compulsion;

circumstance beyond one’s control.

13.6 The Hon'ble Supreme Court in the case of Dhanrajamal Govindram v. Shamji Kalidas and Co., AIR 1961 SC 1285 [LQ/SC/1961/86] , 1291 was pleased to observe that the expression 'force mejeure' is not a mere French version of the Latin expression "vis major". It is a term of wider import. Strikes, breakdown of machinery, which though normally not included in "vis major" are included in "force majeure", the intention is to save the performing party from the consequences of anything over which he has no control.

13.7 The Hon'ble High Court, Orissa examined the issue of force majeure in the case of Mohd. Serajuddin v. State of Orissa, AIR 1969 Ori. 152 at 162 and was pleased to observe that, force majeure means act of God, war, insurrection, riot, civil commotion, strike, earthquake, tide, storm, tidal wave, flood, lightning, explosion, fire and any other happening which the lessee would not reasonably prevent or control.

13.8 Recently, in Civil Appeal No. 940/2017 (Vikram Chatterjee and Ors. Vs. Union of India and Ors.), the Hon'ble Supreme Court has defined Force Majeure as under :-

"Force Majeure shall mean a case of war, flood, drought, fire, cyclone, earthquake or any other calamity caused by nature".

13.9 The term ‘force majeure’ has been defined in Black’s Law Dictionary, as ‘an event or effect that can be neither anticipated nor controlled. It is a contractual provision allocating the risk of loss if performance becomes impossible or impracticable, especially as a result of an event that the parties could not have anticipated or controlled.’

13.10 Force majeure clause is generally provided in the Contracts/ Agreements and this clause typically spells out specific circumstances or events, which would qualify as force majeure events. The consequences of occurrence of such events, to qualify for the benefit of force majeure, they should be beyond the control of the parties and the parties will be required to demonstrate that they have made attempts to mitigate the impact of such force majeure events. Depending upon the language of the force majeure clause, the parties may be required to issue a notice formally intimating the other party of the occurrence of such events and the invocation of the force majeure clause. This issue has already been examined and decided in the case of Kirti Srivastava Vs. Vice Chairman, Lucknow Development Authority in appeal No 142 of 2019.

13.11 In view of the above, the concession granted by the Regulatory Authority to the LDA of two years treating the said period as force majeure on account of time consumed in shifting of the high tension wire by the LESA passing over the land of the project is not covered under the provisions of the Act 2016 and the Rules 2016 and hence was not justified, therefore the appellant is entitled for interest by adding the period of concession granted by the Regulatory Authority in the period of delay. Issue no. (5) is answered accordingly.

14. We have examined the issue regarding offer of possession without OC/CC vide issue no. (3), and held that a Promoter is required to offer legal and habitable possession to the allottees only after obtaining C.C./O.C. and ask for clearing dues by raising final demand. As the OC/CC was issued to the Lucknow Development Authority on 17.02.2020 after the date prescribed for handing over possession, therefore, we are of the considered view that allottee is entitled for interest on the amount paid from the promised date of possession till offer of possession after issuance of OC/CC by the competent authority, on the same rate of interest (i.e. MCLR+1% p.a.). The record reveals that the respondent even after execution of the conveyance deed on 06.01.2022 took further 6 months to deliver the possession, therefore in the peculiar facts and circumstances of the instant case, the claim of the appellant for delay interest till handing over of physical possession of the unit is justified.

15. After examining the pleadings, record and submissions of learned counsel for the parties, we are of the considered view that reducing two years’ period by the Regulatory Authority consumed in shifting of high tension wire by the LESA passing over the land of the project in question, is not in consonance with the provisions of the Act & Rules 2016. On the basis of observation made hereinabove in para 14, in our considered view, the prayer of the appellant for providing delay interest at least from the date of proposed possession as per clause 2.4 of the Registration Booklet i.e. from 10.09.2014 till actual handing over of physical possession is justified.

16. Accordingly while partly allowing the appeal we modify direction no. 1 of the Regulatory Authority dated 18.11.2019 passed in Complaint No. 9201820121 as under:-

(a) The appellant will be entitled for interest on the deposited amount at the rate of MCLR+1% with effect from 10.09.2014 till the actual date of possession (i.e. 13.06.2022).

17. Rest of the directions of the Regulatory Authority is upheld.

18. Respondent is directed to comply this order within 45 days from today. In case of non-compliance of the order by the respondent, the appellant is at liberty to approach RERA for execution of this order.

19. No order as to costs.