The complainant Upinder Singh (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986 (Now C.P. Act, 2019, here-in after referred to as 'Act') before this Forum (Now Commission) against Bathinda Development Authority (BDA) (here-in-after referred to as opposite party).
Briefly stated the case of the complainant is that in the year 2012, opposite party invited applications for allotment of plots under different categories at PUDA Enclave (Sugar Mill Site), Budhladha, District Mansa. The scheme was accessible/susceptible on 27-09-2012 and was fastened/closed on 31-10-2012. The draw of lots was held by the opposite party on 15-01-2013. The complainant was allotted plot number 878 measuring 250 Sq. Yards. Letter of Intent was issued on 26-02-2013. After issuance of Letter of Intent, the complainant deposited a sum of Rs. 2,25,000/- and Rs. 1,50,000/- from the total amount of the plot i.e. Rs. 14,28,750/-. Till date, the opposite party did not initiate any development work at site. The opposite party floated scheme without clearing the title of the land of the site and without obtaining requisite permission and approval from the competent authorities to advertise, sale the plots and receive consideration from general public including complainant. The work related to the basic amenities has even not started at the site. The complainant approached the opposite party numerous times in order to know the status of start of development work as well as handing over the possession, but to no positive response.
It is also alleged that complainant made investigation personally. He was shocked to know that PUDA has delayed in providing allotment letter to complainant because of following reasons :-
a) The land of the said site does not belong to PUDA.
b) The machinery of the sugar mill was got shifted at very belated stage.
c) To misuse the funds derived and poised from complainant and other allottees.
d) Due to pending litigation with the sugar mill.
The allotment letter was issued in favour of complainant on dated 28-10-2016. The opposite party specifically mentioned in the allotment letter that construction on the plot has to be raised within three years from the date of issuance of allotment letter after getting the plans approved, demarcation in accordance with the building bye laws. Till date, the opposite party has failed to initiate any development work on the site and failed to install basic amenities on the site in question. Some of the works are still hanging, undecided and not started. These works are revealed as under :-
a) No OHSR has been constructed for water supply.
b) Neither the land was fixed for STP nor has any work been initiated to establish/construct and install the Sewerage Treatment Plant.
c) Till date opposite party failed to get the electricity connection and also failed in getting substation constructed.
d) There is no plantation along the roads, development of parks also lacking.
e) The old building structure i.e. sugar mill has not been demolished till date.
f) There is no space allotted for Commercial Zone, Dispensary, Club House, School and for parking as shown by the opposite party in the layout plan.
g) Failed to even initiate the construction work of Roads, Lanes and footpath. No provision has been made for installation of street lights.
h) Most importantly, there is no boundary wall got constructed. Hence the opposite party is putting safety and lives of the residents at stake. Further it may also lead to encroachment of the land of the site.
i) No rain water harvesting system has been installed.
j) Failed to provide even the basic amenities like Garbage Collection Centre/Bins and other civil amenities.
k) Failed to fill low lying area to prevent collection of water.
It is further pleaded that re-allotment letter (without the consent of complainant) was issued by the opposite party vide letter No. 1415 dated 23-02-2018, wherein it was mentioned that due to some technical fault, the complainant has been allotted plot No. 878 measuring 250 sq. yards in the year 2013. Now rectifying the error and re-planning the whole site, the plot number has been changed to plot No. 95 measuring 256.67 Sq. Yards.
It is also pleaded that no prior consent of the complainant and prior approval of the Chief Town Planner/Distinct Town Planner were received for re-planning of the layout plan of the site.
It is relevant to mention that in support of his intentions, complainant has quoted some case law, reference of which is not considered necessary for the sake of brevity.
On this backdrop of the facts, the complainant has alleged unfair trade practice on the part of the opposite party. By filing this complaint, the complainant has prayed for following directions to the opposite party :-
(i) To pay Rs.1,00,000/- on account of mental tension, agony, harassment, botheration and humiliation;
(ii) To return back a sum of Rs. 3,75,000/- alongwith interest @ 18% per annum.
(iii) To pay Rs. 21,000/- as cost of litigation.
(v) To pay any other additional, consequential or alternative relief for which he may be found entitled to.
Hence, this complaint.
Upon notice, the opposite party appeared through counsel and contested the complaint by filing written reply. In written reply, the opposite party raised legal objections that the complaint is not maintainable in the present form. The complainant has not come to this Commission with clean hands and has concealed material and true facts. He has not purchased the plot in question for the purpose of residence nor he applied for refund of money at any time. The complainant has applied for plot for commercial purposes. The possession of plots has already been delivered to all concerned allotees/re-allotees after completion of development work on the site. All the basic amenities are provided.
It is also asserted that the complainant is not consumer. He has not applied for refund of amount. There is a set procedure for surrender of allotted plot and for refund of deposited amount. The complainant has never exhausted that procedure. Hence, he has no cause of action or locus standi to file the complaint. Jurisdiction of this Forum is also barred u/s 174 of PUDA Act.
Regarding facts, it is not disputed that opposite party invited applications for allotment of residential plots. The complainant applied for a plot of 250 Sq. yards in the said scheme and deposited 10% cost of plot i.e. Rs. 1,50,000/-. It is admitted that draw of lots was held on 15-01-2013 and complainant was successful in the said draw of lots. Issuance of Letter of Intent and deposit of 15% amount of plot i.e. Rs. 2,25,000/- on 25-3-2013 is admitted.
It is asserted that opposite party has already completed all the development work and issued allotment letters and plot numbers to the allotees. All the basic amenities are provided. The possession of the plots has already been delivered to the concerned allotee/re-allotees, after completion of work at the site. All other averments of the complainant are denied. In the end, the opposite party prayed for dismissal of complaint.
In support of his complaint, the complainant has tendered into evidence his affidavit dated 15-05-2019 (Ex. C-1), photocopy of brochure (Ex. C-2), photocopy of letter of Intent (Ex. C-3), photocopy of payment receipts (Ex. C-4 & Ex. C-5), photocopy of allotment letter (Ex. C-6), photocopy of re-allotment letter (Ex. C-7).
In order to rebut this evidence, the opposite party has tendered into evidence affidavit dated 21-6-2019 of Uday Deep Singh (Ex. OP-1/1), photocopy of public notice (Ex. OP- 1/2), photocopy of details of SMS (Ex. OP-1/3), photographs (Ex. OP-1/4 to Ex. OP-1/13) and closed the evidence.
We have heard learned counsel for the parties and gone through the record.
The learned counsel for the parties have reiterated their version as pleaded in their respective pleadings.
We have carefully gone through the record and have considered the rival contentions.
Of course, it is not disputed that complainant applied for plot of 250 Sq. Yards and initially he was allotted plot No. 878 in the above said scheme. Letter of Intent was issued on 26-02-2013 (Ex. C-3). After issuance of Letter of Intent, the complainant deposited a sum of Rs. 2,25,000/- and Rs. 1,50,000/- from the total amount of the plot i.e. Rs. 14,28,750/-. Allotment letter dated 28-10-2016 (Ex. C-6) was issued to complainant. Thereafter plot number of complainant was changed to 95 measuring 256.67 Sq. Yards vide re-allotment letter dated 23-02-2018 (Ex. C-7).
A perusal of Letter of Intent dated 26-02-2013 (Ex. C-3) reveals that as per clause 7 of letter of Intent, the balance 75% of the tentative price of plot can either be paid in lump sum without any interest within 60 days from issue of allotment letter or in 6 equated half yearly installments alongwith interest. First installment was to become due after one year from the date of issue of allotment letter. In the case in hand, allotment letter was issued to complainant on 28-10- 2016 (Ex. C-6), after more than 3 years. Plot number and size of plot of complainant was changed by opposite party vide letter dated 23-2-2018 without consent of complainant which clearly proves that said project of the opposite party was incomplete on that date.
Similar matter under same scheme has been decided by Hon'ble State Commission, Punjab, Chandigarh, in the case titled Raman Goyal Vs. PUDA (now BDA) CC No. 865 of 2019 decided on 30-06-2020 wherein it has been held :-
“..Opposite party is deficient in service in delaying the delivery of possession for such a long period. The complainant is nowhere at fault in complying with the terms and conditions of the Allotment Letter, but opposite party is definitely at fault by not adhering to the terms and conditions thereof. We are of the opinion that complainant is entitled to refund of his deposited amount with compensation and litigation expenses.”
Hon'ble National Commission in Revision Petition No. 1678 of 2018 decided on 14-2-2019 case titled Estate Officer PUDA (now BDA) Vs Kewan Kumar Goyal has observed in similar matter that in case the possession is not offered within a reasonable time and when they are not in a position to tell that when the possession will be delivered then the order of refund passed by District Forum is justified.
Hon'ble Supreme Court in the case titled Pioneer Urban Land and Infrastructure Limited Vs. Govindan Raghavan (2019) 2 RCR (Civil) 738 has opined in similar matter that when possession of the allotted plot/flat/house is not delivered within the specified time, the allottee is entitled to a refund of the amount paid with reasonable amount of interest thereon from the date of payment till the date of refund.
In the case in hand as per terms and conditions of allotment letter/letter of Intent, the possession of the plot was to be delivered within 18 months from the date of issuance of allotment letter (dated 28-10-2016) after completion of development work at site i.e. upto 28-4-2018. The opposite party has not placed any document on file to prove that physical possession of plot was delivered/offered to complainant within that period after completion of basic amenities/agreed facilities.
Therefore keeping in view the facts, circumstances, evidence and the opinion rendered in the aforesaid authorities, this Commission is of the considered opinion that non-completion of said project with basic amenities in time is clearly a deficiency in service on the part of the opposite party.
Resultantly, this complaint is partly allowed with Rs. 10,000/- as cost and compensation. The opposite party is directed to refund to complainant Rs. 3,75,000/- with interest @ 9% p.a. from the date of deposit till refund.
The compliance of this order be made within 45 days from the date of receipt of copy of this order.
The complaint could not be decided within the statutory period due to heavy pendency of cases.
Copy of order be sent to the parties concerned free of cost. File be consigned to the record room.
Announced :
16-11-2021
(Kanwar Sandeep Singh)
President
(Shivdev Singh)
Member
(Paramjeet Kaur)
Member
