Punjab

StateCommission

CC/11/2014

Sanjeev Sharma - Complainant(s)

Versus

Chairman, Improvement Trust, Jalandhar - Opp.Party(s)

Deipa Asdhir Dubey

16 Jan 2015

ORDER

2^nd Additional Bench

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB

DAKSHIN MARG, SECTOR 37-A, CHANDIGARH

 

Consumer Complaint No. 11 of 2014

                                                                      Date of institution:15.1.2014

                             Date of Decision: 16.1.2015      

 

Sanjeev Sharma S/o O.P. Sharma, R/o # 10/A, Delite Colony, Back Harbans Theater, Patiala.

…..Complainant

                                      Versus

1. Chairman, Improvement Trust, Jalandhar.
2. Administrator, Improvement Trust, Jalandhar.

…..Opposite Parties

Consumer Complaint under Section 17 of the Consumer Protection Act, 1986.

Quorum:-

 

              Shri Gurcharan Singh Saran, Presiding Judicial Member

              Shri Jasbir Singh Gill, Member

 

Present:-

 

          For the complainant         :         Ms. Deipa Asdhir Dubey, Advocate

          For the opposite parties   :         Sh. Sandeep Khunger, Advocate

 

Gurcharan Singh Saran, Presiding Judicial Member

ORDER

The complainant has filed this complaint under Section 17 of the Consumer Protection Act (in short ‘the Act’) against the opposite parties (in short ‘the Ops’) on the allegations that in the year 2011, the Ops offered free hold residential plots in Surya Enclave Extension. As per the brochure booking was opened from 8.8.2011 to 7.9.2011. The area of the scheme was 94.97 acres. The complainant also applied for 500 sq. yards plot and vide allotment letter dated 23.12.2011, it was intimated to the complainant that he was informed that his name appeared in the draw dated 4.11.2011 and was allotted plot in General Category bearing No. 31-C. In the allotment letter, the complainant was to deposit 25% of the total cost of Rs. 85,00,000/-out of which 25% was deposited as earnest money and a sum of Rs. 8,50,000/- was deposited as 10% and a sum of Rs. 16,95,950/- was deposited on 21.1.2012. However, the possession was not delivered to the complainant. As there was no demarcation at the site and lateron he came to know that it was a disputed land because original owners had preferred the Civil Writ Petition before the Hon’ble Punjab & Haryana High Court i.e. CWP No. 3559 of 2011 in which already status-quo was ordered. The complainant sent many representations on 28.6.2011, 7.1.2013, 4.6.2013, 30.10.2013 but no reply by OP No. 1 then on 21.11.2013 one notice was received by the complainant from OP No. 1 to deposit the receipt of the instalments. Then he again visited the site and clicked some photographs and requested OP No. 1 to hand over the physical possession and then he was ready to pay the balance payment as per the schedule. However, when no head was paid by OP Nos. 1 & 2, the complainant sent a legal notice dated 6.12.2013 but no reply. Hence, the complaint with a direction to the opposite parties to refund a sum of Rs. 24,45,950/- received by the Ops, pay Rs. 10 lacs as compensation and Rs. 1 lac as cost of proceedings.

2.                The complaint was contested by the Ops, who filed written statement taking preliminary submissions that the complainant had not approached the Hon’ble Commission/Court with clean hands;. After the complainant was successful allottee, he was issued the allotment letter of Plot No. 31-C of 500 sq. yards and in the allotment letter schedule of payment was given and the complainant was required to make the entire payment within a period of 2-½ years. However, apart from the 25% amount deposited by the complainant, no instalment was paid by the complainant as per the schedule given alongwith the allotment letter. Notices were issued to the complainant to deposit the instalments but no heed was given by the complainant. On receipt of representation dated 12.3.2013, the complainant vide letter dated 16.4.2014 called upon the complainant to come to their office to obtain the possession of the plot in question. On merits, it was also admitted that they had floated a scheme in an area measuring 94.97 acres and the complainant was allotted plot No. 31-C measuring 500 sq. yards. After making 25%, as per the allotment letter further instalments were not paid by him, therefore, he himself is a defaulter, not entitled to any relief. Therefore, the complaint was without merit and it be dismissed.

3.                The parties were allowed to lead their evidence.

4.                In support of his allegations, the complainant had tendered into evidence affidavit of Sanjeev Sharma Ex. C-A, brochure Ex. C-1, allotment letter Ex. C-2, interest deposit receipt Ex. C-3, payment receipt Ex. C-4, order of Hon’ble High Court Ex. C-5, representations Exs. C-6 to C-9, notice Ex. C-10, photographs Ex. C-11, legal notice Ex. C-12, letter dt. 4./9.13 Ex. C-13, policies/scheme Ex. C-14, scheme of Govt. of Punjab Ex. C-15, information under RTI Act and photographs Ex. C-16. On the other hand, opposite parties had tendered into evidence affidavit of D.C. Garg, EO, Ex. OP-1/A, letter of OP Ex. Op-1/1, letter dt. 11.1.13 of OP Ex. OP-1/2, letter dt. 8.3.12 Ex. Op-1/3, letter dt. 30.12.13 Ex. Op-1/4, letter of complainant Ex. Op-1/5, letter of OP Ex. Op-1/6.

5.                We have heard the counsel for the parties and have carefully gone through the allegations as alleged in the complaint, reply filed by the Ops, evidence and documents brought on the record.

6.                Floating of the scheme and allotment of Plot No. 31-C to the complainant has not been denied.

7.                The material point for controversy is development of the area under Scheme and handed over the possession for which the terms and conditions as contained in the allotment letter are relevant.

8.                The allotment letter has been placed on the record as Ex. C-2. As per Clause 7 that the amenities under the scheme will be completed within a period of 2½ years in which the instalments are to be paid and the possession of the plot can be taken for execution of the agreement to sell between the parties. According to Clause 11, the construction was to be raised within three years from the date of allotment letter. Therefore, in case the construction is to be completed within three years then the possession should be delivered immediately after the allotment letter in case the complainant had paid 25% of the basic amount otherwise the remaining amount was to be paid in instalments running from 21.6.2012 to 21.6.2014 as given in the allotment letter.

9.                The allegations of the complainant are that firstly there is an unfair trade practice on the part of the Ops as the land over which the scheme was to be floated was under litigation. A reference has been made to the brochure Ex. C-1 booking was open from 8.8.2011 to 7.9.2011 but before that CWP No. 3559 of 2011 was filed by various land owners “Arjan Singh and others” and vide order dated 8.3.2011, status-quo regarding possession was ordered. In case their title was not clear by that date  then they should not have floated the scheme. Even the Government issued letters to the various Improvement Trusts in the State of Punjab are to that effect. A reference has been made to the letter dated 21.10.2005 Ex. C-14 wherein after giving a reference to the instructions issued on 23.2.1983, it has been directed that the Trust to allot/sell only such plot/land, the site whereof is available with Trust free from all encumbrances and it was further mentioned that before the process of allotment/auction of the site is commenced, Chairman and Executive Officer will certify on record that physical possession of site of proposed allotment/auction free from all encumbrances/obstructions is readily available for onwards transfer to the prospective allottee/buyer and there is no physical obstruction to start the construction activities. The letter dated 23.2.1983 has also been brought on the record as Ex. C-15. One ‘OP Aneja’ had taken the information from the opposite party under the RTI in which it has been referred that as on 1.11.2011, the Trust had taken the possession of just 518 Kanal 3 Marlas whereas the area of 94.97 acres comes but 759.7 Kanal, therefore, major portion of the land, the possession was not taken by the opposite party before they floated the scheme. Therefore, the Ops have violated the instructions of the Government of Punjab before floating the scheme because the possession of the entire land was not taken by the Ops before they floated the scheme, which amounts to unfair trade practice on the part of the opposite party.

10.              As stated above in the letters issued by the Government of Punjab to the various Improvement Trusts, the land should be available with the opposite party when they started any scheme so that there should be no problem to deliver the land to the prospective vendees. Since the complainant had deposited 25% and after that the possession should have been delivered to him, he visited the site but there was no development at the site then he wrote a letter Ex. C-6 in which he has been mentioned that he had requested the opposite parties to deliver the possession of the plot so that he could start the construction and moreover the construction work will not be started till the amenities i.e. sewage, water supply and road network is not given. It was again repeated in the letter dated 7.1.2013 Ex. C-7, 4.6.2013 Ex. C-8, 30.10.2013 Ex. C-9. Although the counsel for the opposite parties stated that the complainant has not placed on the record any mode of sending these letters to the opposite parties, therefore, it cannot be said ever these letters were issued to the opposite parties. However, there is postal receipt with the letter dt. 30.10.2013 Ex. C-9. He has also placed on the record the photographs Ex. C-11(4 photographs), which show the land in the form of agriculture land and these photographs were taken on 25.8.2014 and even then it is in the form of agricultural land, therefore, no road network, water and sewage facilities has been provided by the Ops to start the construction. Therefore, without basic amenities no construction can be started. It was argued by the learned counsel for the Ops that stay was only a part of the land whereas the opposite party had written a letter to the complainant on 16.4.2014 to take the possession by visiting their office. But again in case they want to deliver the possession then they have not placed on the record any demarcation plan how the plots have been carved out. In the papers they have prepared the list of plots but at the site no plot has been demarcated. No contrary photographs have been placed on the record by the opposite party that they have demarcated the plots and have provided other amenities to enables the allotteees to construct their plots, therefore, they have just written a letter to contradict the version of the complainant after filing of the complaint that they are ready to deliver the possession but at the site nothing has been done. The complainant can be held liable for defaulting amount only in case they have completed their part of the agreement, therefore, the Ops could not take the plea that the complainant is defaulter therefore he is not entitled for the refund of the amount as per the terms and conditions of the allotment letter.

11.              In the same scheme, one Baljit Singh filed a consumer complaint before the District Forum, which was allowed vide order dated 21.4.2014. One complaint was filed by Munish Dev Sharma, which was allowed by the Principal Bench of this Commission vide order dated 30.7.2014 and complaint of Sanjay Gupta was also allowed by the said Bench vide judgment dated 30.7.2014. The case of the complainant is squarely covered under these judgments. Therefore, keeping in view the observations made above, we allow the complaint and direct the opposite parties as under:-

(i)      to refund the basic amount i.e. Rs. 24,45,950/-  alongwith interest @ 9% p.a.;

(ii)      to pay Rs. 1 lac as compensation; and

(iii)     to pay Rs. 10,000/- as litigation expenses.

12.              The Opposite parties are directed to comply with the above directions within 45 days, otherwise proceedings under Section 27 of the CP Act shall be initiated against them.

13.              The arguments in this consumer complaint were heard on 13.1.2015 and the order was reserved. Now the order be communicated to the parties as per rules.

14.              The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.

 

 (Gurcharan Singh Saran)

Presiding Judicial Member

 

January 16, 2015.                                                                                                                                                          (Jasbir Singh Gill)

as                                                                                                                                                                                        Member