STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

(Complaint Case No.12 of 2010)

                                                                  Date of Institution: 09.03.2010

                                                                   Date of Decision  : 01.03.2011

Sh. Tejinder Singh Atwal son of Sh. Darbara Singh, resident of #132, Urban Estate, Phase-II, Jallandhar, Punjab through his Power of Attorney Smt. Tejinder Kaur Atwal w/o Sh. Tejinder Singh Atwal, resident of #132, Urban Estate, Phase-II, Jallandhar, Punjab.

……Complainant

V e r s u s

1.     Ansal Properties and Infrastructure Ltd., SCO No.183/184, Sector 9C, Madhya Marg, Chandigarh through its representative.

2.     Ansal Properties and Infrastructure Ltd., Corp. Office: 1203-04, Antriksh Bhawan, 22, K. G. Marg, New Delhi – 110001 through its representative.

3.     Ansal Properties and Infrastructure Ltd., Regional Office: SCO No.183/184, Sector 9C, Madhya Marg, Chandigarh through its representative.

              ....Opposite Parties.

BEFORE:          MRS. NEENA SANDHU, PRESIDING MEMBER.

                    S. JAGROOP SINGH MAHAL, MEMBER.

Argued by:          Sh. Vikram Batra, Advocate for the complainant.

                    Sh. Pavit Mattewal, Advocate for the OPs.

PER JAGROOP SINGH MAHAL, MEMBER.

                    Briefly stated the case of the complainant is that he purchased a residential Plot No.206 measuring 500 Sq. Yards in the proposed residential township “Ansal Golf Links” in Sector 114, Mohali, Punjab for an amount of Rs.74,36,250 from the North Delhi Construction & Investments Pvt. Ltd. to whom an allotment letter dated 20.3.2007 (Annexure C-1) with respect to this plot had been issued by the OPs. It is averred that the OPs as per transfer application dated 8.10.2007 allowed its transfer in favour of the complainant who paid a sum of Rs.25,000/- as transfer charges to the OPs for its transfer to him from North Delhi Construction Investment Pvt. Ltd. As per the complainant, at the time of purchase of the plot, total consideration amount was fixed at Rs.74,36,250 out of which Rs.59,50,000/- was the basic sale price, Rs.10,41,250/- were Preference Location Charges and Rs.4,45,000/- were External Development Charges, to which the complainant agreed. The complainant regularly made the payment of installments to the OPs as per the schedule and deposited till date an amount of Rs.63,87,562 with the OPs on account of installments, which were paid as Basic Sale Price, Preference Location Charges and External Development Charges besides transfer charges of Rs.25,000/-. Thus, in all the complainant deposited an amount of Rs.64,12,561.50 with the OPs vide receipts Annexures C-9 to C-22. The complainant also wrote letter dated 1.11.2008 (Annexure C-24) to the OPs wherein he noticed that there was no WBM Road laid down in front of Plot No.206 despite the amount for the same to the tune of Rs.10,48,678/- already taken from him six to seven months back. It is averred by the complainant that he was shocked to know that the OPs have changed their initial layout plan (Annexure C-29) by another layout plan (Annexure C-30) in which the front common park of Plot No.206 was vanished and OPs were also proposing to construct flats in front of the said plot.  The complainant, it is averred, then wrote letters/fax/emails dated 4.11.2009, 12.10.2009, 21.10.2009 and 28.10.2009 (Annexures C-31 to C-35) to the OPs putting the difficulties being faced by him but no heed was paid to his requests. It is next averred by the complainant that he was further shocked to know that the rear common green park was also deleted by the OPs and they were coming up with residential plots at the rear side of Plot No.206 and also they changed the size of his plot without his consent vide the third layout plan (Annexure C-36).  As per the complainant, he has been cheated by the OPs as Plot No.206 allotted to him was being allotted to some other party without informing him. As per the complainant, the OPs have failed to handover the possession of the said plot which was to be offered in October 2008 and till date, no intimation as regards offering of possession was given to the complainant by the OPs. Terming these acts of OPs as deficiency in service and unfair trade practice, the complainant has filed the present complaint seeking directions to the OPs to refund the amount of Rs.64,12,561.50 along with interest @18% per annum from 24.9.2007 to 1.3.2010, Rs.3,76,200/- as financial losses, Rs.4,50,000/- for mental agony and harassment and Rs.51,000/- as costs of litigation.

2.                 The complaint was opposed by the OPs who filed joint written statement admitting that Plot No.206 being developed by the OPs was initially allotted to North Delhi Construction & Investment Pvt. Ltd. vide allotment letter dated 20.3.2007 and the same was subsequently transferred in the name of the complainant vide endorsement dated 8.10.2007 without charging any transfer fee. As per the OPs, they followed a time linked development plan for the purpose of payment for all the plots in the aforesaid Golf Links, Sector 114, SAS Nagar, Mohali and all the potential buyers had been made aware of the details thereof. It is pleaded that due to some reasons beyond the control of OPs, they were compelled to change the allocation of plots, which was in furtherance with an unforceable event of change of layout plan of Sector 114 by the Department of Town and Country Planning, Govt. of Punjab. It is next pleaded that this change further led to change in the area and location of plot No.206 allotted to the complainant. It is asserted that the change in allocation was not due to the whims or fancies of the Company but due to a legal and competent direction and change in layout plans by the Hon’ble High Court and subsequently by Department of Town and Country Planning, Govt. of Punjab. The Hon’ble High Court vide its order dated 28.11.2009 (Annexure R-1), it is asserted, had given certain directions in order to facilitate the passing of rainy water from a choe passing through village Chapper Chiri and in compliance of the said directions, a cut was made in the road by the OP. As per the OPs, in view of the aforesaid changes, the initial layout plan was changed. Justifying the change in second layout plan in terms of letter dated 19.1.2009 (Annexure R-2), OPs submitted that this change in second layout plan was done just to remove the obstacles on the drain in the aforesaid township. As regards the change in the size of the plot No.206 from 500 Sq. Yards to 800 Sq. Yard, OPs asserted that the same was the outcome of the revised layout plan which was approved on 28.12.2009 and the green area earlier planned in front and rear of the said plot was relocated due to introduction of new concept of Leisure Valley. It was next pleaded that various other Plots No.388, 769, 379 all nearby vicinity of the said plot No.206 were offered to the complainant and even offered to choose a new plot in its upcoming township in Sector 116, SAS Nagar, Mohali but the complainant refused to accept any offer. Pleading no deficiency in service or any unfair trade practice on its part, OPs prayed for dismissal of the complaint.

3.                 The parties produced evidence in support of their contentions.

4.                 We have heard the learned counsel for the parties and have perused the record.

5.                 It is admitted between the parties that :-

(i)                            Plot No.206, Sector 114 was earlier allotted to M/s North Delhi Construction and Investment Private Limited vide allotment letter (Annexure C-1) and was further transferred to the complainant. It was purchased from the said allottee by the complainant  regarding which an agreement (Annexure C-2) and the allotment letter (Annexures C-3 and C-4) were issued by the OPs.

(ii)                          It is admitted that the complainant had been making payments of the installments against Plot No.206 in Sector 114. The receipts are Annexures C-9 to C-22.

(iii)                        It is also admitted that the complainant has so far paid a sum of Rs.64,12,561.50 including the external development charges of Rs.25,000/-.

(iv)                        It is also admitted that the possession of the plot which as per letter (Annexure C-26) was to be given tentatively by the end of August 2009, has not been given so far.

6.                 The contention of the complainant is that the OPs are not only deficient in rendering service by not handing over possession of the plot to him but have indulged in unfair trade practice. The following contentions are duly proved on record: -

(i)                            It is admitted by OP in Preliminary Objection No.5 and in Para No.3 of its reply on merits that this plot was allotted to the previous allottee on 20.3.2007 and was transferred to the complainant on 8.10.2007 even through the layout plan was prepared by them on 18.10.2007 as mentioned in Preliminary Objection No.4 of their reply.

(ii)                          There was a park in front of this plot as well as on the back thereof. Subsequently, changes were made in the layout plan divesting this plot of both the parks and now neither there is any park in front of this plot nor on its back.

(iii)                        In place of the front park, now multi-storeyed flats are to be constructed with the result that there would be rush and crowd in front of the plot when earlier there was none.

(iv)                        The possession of the plot was to be given to the complainant by August 2009 as mentioned in Annexure C-26 but the same has not been delivered till the filing of the complaint on 9.3.2010.

(v)                          The area of the plot has been increased from 500 Sq. Yards to 800 Sq. Yards without intimation to the complainant.

(vi)                        The Plot No.206 has subsequently been allotted to some other person and the contention of the complainant is that it was due to its location that many persons were after the plot and were ready to pay handsome price under the table to get the plot. The OP though admitted the re-allotment but neither the date of allotment has been mentioned nor even the name of the person to whom the plot has been allotted has been mentioned.

(vii)                      It is alleged by the OPs that alternative plots were offered to the complainant but there is no such letter placed on file to prove this fact. The complainant has denied if any such alternative plots were offered to him.

(viii)                    If any alternative plots were to be offered, the OPs have not explained as to why this plot itself was not offered to the complainant after the area of the plot was increased to 800 Sq. Yards. In their reply in Para No.11, the OP has mentioned that plot of the size of 950 Sq. yard was also offered but neither the number of the plot has been given nor the date has been mentioned on which the same was offered to the complainant. The contention of the complainant is that no such plots were offered and that if some other plots were being offered, why this plot was not kept allotted, which shows the malafides of the OPs.

7.                 The contention of the OPs is that in fact the zoning plan had to be changed in view of the order passed by Hon’ble High Court to make provision of storm water. He referred to Annexure R-3, which shows that a Choe was passing through Sector 114 but no provision was made (by the OPs) for passing of the Choe through the said sector. The learned counsel referred to the order (Annexure R-1) in view of which a cut was made in the road laid by the OP in order to pass the rainy water from Choe, passing through Village Chapper Chiri. It is argued that according to the villagers, the said road was blocking passage of smooth flow of rainy water during the monsoon. The learned counsel also referred to Annexure R-2, which is the letter written by the Deputy Commissioner, SAS Nagar to Chief Town Planner, Punjab, Chandigarh intimating to him that the drain was closed (by the OP) in Sector 114 and the blockade had then been removed. It is therefore argued that due to the Choe, OP had to change the layout plan due to which the changes referred to above took place. This contention is opposed by the complainant. Annexure R-7 is the earlier layout plan showing the location of the plot and the parks on both its sides. The changed plan is Annexure R-8 but in this plan, there is no Choe passing nearby the plot in dispute. It appears the Choe is shown in this plan far away from the plot to the left but already there was least construction at that place and even if the provision of the storm water was made, it did not necessitate the change of layout plan of the plot in dispute or other plots nearby. The learned counsel for the complainant is right when he says that in fact after the bookings of the plots were done by showing the layout plan (Annexure R-7), OPs changed the entire layout plan and carved out a number of additional plots so as to earn profit, which amounts to an unfair trade practice on their part. In their replication, the complainant has mentioned in Para No.8 that the OPs have given Plot No.109 to 41 plots, Plot No.125 to 14 plots, Plot No.213 to 32 plots, Plot No.258 to 44 plots and Plot No.328 to 17 plots. Besides this, OPs have added various exclusive luxury floors and all this shows that the layout plan was changed after collecting money from the prospective buyers subsequently just to earn more profit even to the detriment of the persons who have already purchased the plots in Sector 114 by paying handsome amounts. A comparison of Annexures R-7 and R-8 shows numerous additional plots carved out by the OPs in the said chunk of land. If there was re-alignment due to Choe then the number of plots or increase in the area of plots would not have taken place. We are, therefore, of the opinion that the Choe was not at all the reason for realigning of the plots or for increasing the area of Plot No.206 and deleting the green parks from its front and back. It is, therefore, not only deficiency in service but an unfair trade practice on the part of OPs.

8.                 The learned counsel for the OPs has referred to Para No.3 of the allotment letter (Annexure C-1)  and contended that the OPs had the right to effect suitable and necessary alternation in the layout plan and therefore, the complainant cannot have any grudge against that. It is true that Para No.3 gives vast powers to the OPs to change the layout plan but it cannot be used to rob the complainant of all the amenities, which were available to him when the plot was offered. In the guise of the power vested under Para No.3 of Annexure C-1, the OPs cannot take away the green parks on the front and back side of the plot or to cancel this plot altogether and allot the same to some other person. They did not have such powers, which go to the root of the allotment meaning thereby that when the plot has been chosen by the complainant keeping in view the amenities attached with the same after he started paying installments, those amenities cannot be withdrawn. Furthermore, if the site remains available for carving out the plot at that place, the first right over the same would be that of the complainant. This argument of the learned counsel, therefore, does not hold water.

9.                 The complainant is still ready and willing to accept Plot No.206 even without green parks on its sides. He is ready to pay the additional amount for the increase in the area of the plot but the OPs are not willing to offer that plot to him against which the complainant had been paying installments since February 2007. He has already paid a sum of Rs.64,12,561.50 against this plot but without any rhyme or reason, OPs claim to have allotted the plot to somebody else and they are not even willing to give the name of the said allottee and have not produced any allotment letter, if any, issued by them. We are, therefore, of the opinion that the OPs are not willing to give possession of the plot No.206 to the complainant even inspite of having collected a huge amount from him. Their contention that the said plot has been allotted to some other person cannot be accepted as correct because the allotment once made in favour of the complainant could not have been changed by them without offering the complainant an opportunity of being heard. Annexures C-31 to C-35 show the pitiable condition of the complainant in his endeavor to persuade the OPs not to treat him shabbily but to allot him the said plot but the OPs did not pay any heed to the same. In fact, there was no fault on the part of the complainant due to which he should have been divested of the said plot. It is, therefore, an unfair trade practice on the part of OPs.

10.               As regards the alternative plots offered to the complainant, there is no letter on file to suggest the same. Otherwise also, if alternative plots measuring 950 Sq. Yard, 618 Sq. Yards etc. were to be offered to the complainant then why Plot No.206 could not have been offered to him with its area increased. If the OPs felt that the complainant was willing to purchase Plot measuring 950 Sq. Yards, they could very well offer him the plot No.206 measuring 800 Sq. Yard but it was not done for the sole reason that the plots of bad or faulty location are being thrust on the complainant to drive him out so that the plot of good location may be resold on hefty premium under the table.

11.               In view of the above defaults committed by the OPs and in view of the fact that they are not willing to give possession of Plot No.206 to the complainant, which has since been allotted to him and against which he had been paying installments, OPs are liable to refund the entire amount to the complainant received by them along with interest. The OPs would be liable to pay interest at the same rate, which they would have charged from the complainant or are charging from their customers. Annexure C-1 is the allotment letter in favour of M/s North Delhi Construction and Investment Private Limited in Para No.13 of which is mentioned that if there is any delay in making the payment of installment, OPs would charge interest @18% per annum. Annexure C-8 is the letter written by the OPs to the complainant in Para No.2 of which he was informed that interest @18% per annum was accruing on the outstanding amount as per the terms of allotment. If the complainant was liable to pay interest @18% per annum on the delayed payments, the OPs would be liable to pay interest at the same rate for not refunding the amount to the complainant.

12.               In view of the above discussion, we are of the opinion that the present complaint must succeed and the same is accordingly allowed. OPs are, therefore, directed to refund the amount of Rs.64,12,561.50 along with interest @18% per annum from the date of respective payments till the amount is actually paid to the complainant. The OPs are also directed to pay Rs.1,00,000/- (Rupees One Lakh only) for causing mental and physical harassment to the complainant and Rs.1,00,000/- (Rupees One Lakh only) for adopting unfair trade practice as referred to above. Since the prices of plots are increasing day by day, it would not be possible for the complainant to purchase a plot with similar qualities within the amount offered by the OPs. It would, therefore, cause financial loss to him. The delay in handing over possession has also caused him financial loss as the rates of construction have also increased. The complainant is required to be compensated for this loss also. The OPs shall, therefore, pay him another sum of Rs.5,00,000/- (Rupees Five Lakh Only) on this account. They shall also pay Rs.20,000/-  (Rupees Twenty Thousand Only) towards costs of litigation. If the entire amount is not paid within 30 days from the date of receipt of certified copy of this order, the OPs would be liable to pay interest on the amount of compensation and litigation costs also @18% per annum w.e.f. today till the amount is actually paid to the complainant.

13.               Copies of this order be sent to the parties free of charge. File be consigned to the record room.

Pronounced.

1^st March 2011.

Sd/-

 [NEENA SANDHU]

PRESIDING MEMBER

Sd/-

[JAGROOP SINGH MAHAL]

MEMBER

Ad/-

STATE COMMISSION

(Complaint Case No.12 of 2010)

Argued by:          Sh. Vikram Batra, Advocate for the complainant.

                    Sh. Pavit Mattewal, Advocate for the OPs.

Dated the 1^st day of March, 2011.

ORDER

                    Vide our detailed order of even date recorded separately, this complaint has been allowed.

(JAGROOP SINGH MAHAL)                                              (NEENA SANDHU)    

                MEMBER                                                            PRESIDING MEMBER