Chandigarh

StateCommission

CC/653/2017

Azad Kumar Bhalla - Complainant(s)

Versus

Chandigarh Royal City Promoters (P) Ltd. - Opp.Party(s)

Gaurav Gupta, Adv.

14 May 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	653 of 2017
Date of Institution	:	31.08.2017
Date of Decision	:	14.05.2018

 

Azad Kumar Bhalla s/o Narinder Mohan Bhalla, R/o H.No.659, Narinder Nagar, Sonepat (Haryana).

……Complainant

V e r s u s

 

1. Chandigarh Royale City Promoters Pvt. Ltd., through its Directors, Sh.Parveen Garg, Sh.Neeraj Kansal, Sh.Pardeep Bansal, Sh.Naresh Garg, Sh.Pyare Lal Garg, Sh.Manish Singla, Registered Office :-SCO 44, Sector 20-C, Chandigarh.
2. Chandigarh Royal City Promoters Pvt. Ltd., through its Site Manager/Authorized Signatory, Royal Estate Complex, Chandigarh-Delhi Highway, Zirakpur, District Mohali (Punjab).

….Opposite parties

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

 

BEFORE:             JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                             MR. DEV RAJ, MEMBER

                             MRS. PADMA PANDEY, MEMBER

 

Argued by:           Sh.Gaurav Gupta, Advocate for the complainant.

                             Sh.Amarbir Singh Dhaliwal, Advocate for the opposite party.

 

JUSTICE JASBIR SINGH (RETD.), PRESIDENT

 

                   Vide our separate detailed order of the even date, recorded in consumer complaint bearing no.647 of 2017 titled as Col. D.S. Khara Vs. Chandigarh Royale City Promoter Pvt. Ltd. and another, this complaint has been partly accepted with costs. 

2.           Certified copy of the order passed in consumer complaint bearing No. 647 of 2017 shall also be placed on this file.
3.           Certified copies of this order, alongwith the main order passed in consumer complaint bearing No.647 of 2017, be sent to the parties, free of charge.
4.           The file be consigned to Record Room, after completion

 

Sd/-                     Sd/-                                                  Sd/-

 

 

(DEV RAJ) MEMBER

(JUSTICE JASBIR SINGH(RETD.)) PRESIDENT

(PADMA PANDEY) MEMBER

 

Rg.

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	647 of 2017
Date of Institution	:	29.08.2017
Date of Decision	:	14.05.2018

 

Col. D.S. Khara son of Late S.Uttam Singh, resident of House No.598, Sector 16-D, Chandigarh.

……Complainant

V e r s u s

 

1. Chandigarh Royale City Promoters Pvt. Ltd., Main Office, Royal Estate, Zirakpur, District SAS Nagar, Mohali, through its MD.
2. Chandigarh Royale City Promoters Pvt. Ltd., Registered Office SCO No.44, Sector 20-C, Chandigarh

….Opposite parties

 

Argued by:       Sh.Subhash Chand, Advocate for the complainant.

                        Sh.Amarbir Singh Dhaliwal, Advocate for the    opposite parties.

 

=======================================================

 

Complaint case No.	:	648 of 2017
Date of Institution	:	29.08.2017
Date of Decision	:	14.05.2018

 

1. Col.Tejinder Singh Retd. S/o Lt.Major Narinder Singh R/o House No.401, Block-B, Vikram Vihar (A.W.H.O.) Flats, Sector 27, Panchkula, Haryana-134116.
2. Arvinder Kaur W/o Colonel Tejinder Singh, R/o House No.401, Block-B, Vikram Vihar (A.W.H.O.) Flats, Sector 27, Panchkula, Haryana-134116.

……Complainants

V e r s u s

 

1. Chandigarh Royale City Promoters Pvt. Ltd., Main Office, Royale Estate, Zirakpur, District SAS Nagar, Mohali, through its MD.
2. Chandigarh Royal City Promoters Pvt. Ltd., Registered Office SCO 44, Sector 20-C, Chandigarh, through its MD.

….Opposite parties

Argued by:       Sh.Subhash Chand, Advocate for the complainants.

                        Sh.Amarbir Singh Dhaliwal, Advocate for the    opposite parties.

 

=======================================================

Complaint case No.	:	653 of 2017
Date of Institution	:	31.08.2017
Date of Decision	:	14.05.2018

 

Azad Kumar Bhalla s/o Narinder Mohan Bhalla, R/o H.No.659, Narinder Nagar, Sonepat (Haryana).

……Complainant

V e r s u s

 

1. Chandigarh Royale City Promoters Pvt. Ltd., through its Directors, Sh.Parveen Garg, Sh.Neeraj Kansal, Sh.Pardeep Bansal, Sh.Naresh Garg, Sh.Pyare Lal Garg, Sh.Manish Singla, Registered Office :-SCO 44, Sector 20-C, Chandigarh.
2. Chandigarh Royal City Promoters Pvt. Ltd., through its Site Manager/Authorized Signatory, Royal Estate Complex, Chandigarh-Delhi Highway, Zirakpur, District Mohali (Punjab).

….Opposite parties

Argued by:       Sh.Gaurav Gupta, Advocate for the complainant.

                        Sh.Amarbir Singh Dhaliwal, Advocate for the    opposite party.

 

=======================================================

 

Complaint case No.	:	12 of 2018
Date of Institution	:	09.01.2018
Date of Decision	:	14.05.2018

 

1. Simla Devi W/o Ashok Jain, House No.412, Harmilap Nagar, Baltana, Mohali.
2. Jiwan Lata W/o M.K. Sharma, House No.1568, Sector 4, Panchkula.

……Complainants

V e r s u s

 

Chandigarh Royal City Promoters Pvt. Ltd., Corporate Office SCO 489-490, Level II, Sector 35-C, Chandigarh, through its Chairman/Managing Director.

….Opposite party

ALTERNATE ADDRESS OF OPPOSITE PARTY

1. Chandigarh Royale City Promoters Pvt. Ltd., Corporate-cum-Registered Office: Royal Estate Office, Royal Estate, Chandigarh-Delhi Highway, Below Flyover, Zirakpur, Mohali.
2. Chandigarh Royal City Promoters Pvt. Ltd., Communication Office Adjoining Main Gate, Royal Estate, Village Karala, Zirakpur-Patiala Highway, District SAS Nagar, Mohali.

 

Argued by:       Sh.Umesh Narang, Advocate for the complainants.

                        Sh.Amarbir Singh Dhaliwal, Advocate for the    opposite party.

=======================================================

 

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

 

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER

                        MRS. PADMA PANDEY, MEMBER

 

JUSTICE JASBIR SINGH (RETD.), PRESIDENT

 

                By this order, we propose to dispose of the aforesaid four consumer complaints. Arguments were heard in common, in the above cases, as the issues involved therein, except minor variations, here and there, of law and facts are the same. In the said complaints, refund of the deposited amount, alongwith interest, compensation etc. has been claimed by the complainant(s). At the time of arguments, on 02.05.2018, it was agreed between the contesting parties, that, in view of above, all these complaints can be disposed of, by passing a consolidated order.

2.         Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing no.647 of 2017 titled as Col. D.S. Khara Vs. Chandigarh Royale City Promoters Pvt. Ltd. and another. The complainant by filing this complaint has alleged that on reading widely publicized advertisements and representations made by the opposite parties, regarding launching of their project, under the name and style “Chandigarh Royale City”, Zirakpur-Patiala Highway, Village Karala, SAS Nagar, Mohali, Punjab, he, opted to purchase a plot therein, for an amount of Rs.23,75,000/- inclusive of all charges. He paid an amount of Rs.6,25,000/-towards booking of the said plot, on 29.03.2011. It is case of the complainant that, thereafter, he requested the opposite parties for execution of buyer’s agreement, upon which, he was asked to make further payment. By 22.11.2011, he had paid an amount of Rs.14 lacs, yet, agreement was not sent to him for signatures. At the time of arguments, it was specifically asked to the Counsel for the opposite parties, as to whether, within a reasonable time, say two or three months or thereafter, at any point of time, buyer’s agreement was offered to the complainant for signing and if it is so, proof thereof, be shown. He was having no positive answer with him. By not doing so, the opposite parties have violated the provisions of Section 6 of the Punjab Apartments and Property Regulation Act, 1995 (PAPRA).
3.         It was averred that, not only as above, it came to the knowledge of the complainant that the project, in question, was launched and sold, without necessary approvals and sanctions. It is further the case of the complainant that thereafter, when he visited the site, even at that time, development of the project was not in progress. It was stated that the plot, in question, was not ready for delivery of possession. Huge amount deposited by the complainant, has been utilized by the opposite parties, without handing over physical possession of the plot, even after a lapse of number of years.

                By alleging deficiency in providing service and adoption of unfair trade practice on the part of the opposite parties, the complainant has sought refund of the amount paid, alongwith interest, compensation etc., by way of filing this complaint.

4.         Opposite parties no.1 and 2 is the same Company i.e. Chandigarh Royale City Pvt. Ltd. It appears that the said Company was impleaded twice, only with a view to give address of the Registered Office and also of the site/Main office.
5.         The opposite parties, in their joint written version stated that they have developed more than 950 plots. Possession of about 350 plots already stood delivered to the consumers. The project is fully developed. It was stated that the project consists of 200 acres of land, to be developed in three phases. It was averred that the complainant of his own, after perusing salient features of the project, opted to purchase a plot therein. Expression of interest for purchase of a plot was executed between the parties, on 29.03.2011, on receipt of payment of Rs.6.25 lacs from the complainant. Balance amount was to be paid by him, in installments. It was pleaded that the complainant has signed expression of interest for purchase of the said plot, subject to approvals by the competent Authorities. Investment was made for future gains, as it was known to the complainant that the project will be developed in three phases. It was averred that development at the site had commenced in the year 2011 and it was completed in the year 2014. Despite raising demands, the complainant failed to make the remaining payment. He is seeking refund of amount paid, only on account of recession in the real estate market. Territorial jurisdiction of this Commission was challenged. It was stated that since the proceedings before this Commission are summary, in nature, as such, consumer complaint is not maintainable, and only a Civil Court, could adjudicate the same. It was averred that the complaint is not filed in the prescribed manner, as such, the same is liable to be dismissed, on this score only.
6.         It was further stated that the complainant has concealed that he was intimated many a times, to make payment and get possession of the plot purchased by him, which he failed to do. It was further stated that plot purchased by the complainant was ready for possession, however, despite request made to him, vide letter dated 10.10.2014 Annexure R-3, for taking over possession and also to get executed the requisite documents like allotment letter, agreement, etc., he failed to come forward to take the same. Reminder was also sent to the complainant, in that regard, but to of no avail. It was averred that the complainant is bound by terms and conditions of the allotment letter/agreement and it is not open to him, to withdraw from the contract. It was stated that the complaint was barred by limitation. It was further stated that development at the site was delayed on account of non-payment of dues, by large number of investors, who purchased the plots, only to sell it in future. It was alleged that the complainant was guilty of violation of terms and conditions of the application to purchase plot, by not making payment, in time. At the time of arguments also, it was contended by Counsel for the opposite parties that the complainant failed to make payment as per payment plan. It was pleaded that all requisite permissions were available with the opposite parties, when the project, in question, was sold. It was averred that for any delay, the opposite parties are liable to pay delayed compensation, for the period of delay, as per terms and conditions of the agreement, to only those allottees, who have not breached any terms and conditions thereof. Remaining averments were denied being wrong.
7.         The contesting parties led evidence, in support of their cases.
8.         We have heard Counsel for the contesting parties, and, have gone through the evidence and record of all the cases, carefully.
9.         It is not in dispute that to purchase a plot, total sale consideration whereof was fixed at Rs.23,75,000/-, the complainant got himself registered with the opposite parties on making payment of Rs.6.25 lacs, vide receipt Annexure C-2. Admittedly, another amount of Rs.3,75,000/- was paid by the complainant, towards the said plot, to the opposite parties, on 17.06.2011, which fact is evident from the statement of account Annexure C-3 (at page 29 of the file). He made further payment of Rs.4 lacs, vide cheque dated 17.11.2011, as is evident from receipt Annexure C-4 dated 22.11.2011. In this manner, total amount of Rs.14 lacs, stood paid by the complainant, to the opposite parties, towards price of the said plot, yet, there is nothing on record, to prove that any action was taken by them, with regard to issuance of allotment letter or agreement.

                It has vehemently been contended by Counsel for the complainant that despite requests made, buyer’s agreement was not offered for signing. In reply filed by the opposite parties, it was stated that despite requests made, the complainant failed to sign the buyer’s agreement. However, not even a single document has been placed on record by the opposite parties to prove that, after receiving around 25% or even in the present case, after receiving around 60% of the amount from the complainant, as far as back by 17.11.2011, thereafter, buyer’s agreement was sent to him, within a reasonable period say two or three months therefrom, for his signatures. What to speak of offering buyer’s agreement for signatures, even allotment letter, in respect of the plot purchased by the complainant, of which about 60% of the amount had been received, was not issued in favour of the complainant. Buyer’s Agreement on accepting application for purchase of a plot/unit, and that too after receiving substantial amount, should have been executed within a reasonable time, say about two to three months. It was also earlier so said by this Commission, in a case titled as Usha Kiran Ghangas Vs DLF Homes Panchkula Private Limited, Complaint Case No.93 of 2016, decided on 02.06.2016. Relevant portion of the said case, reads thus:-

“The opposite parties are also guilty of adoption of unfair trade practice. It is on record that the complainant booked the unit, in question, in the project aforesaid, on 16.02.2011. She was allotted unit, vide letter dated  23.02.2011, on which date, she had paid an amount of Rs.4 lacs. Buyer’s Agreement was not put for signing in a reasonable time, say two  to three months. She continued to make payment and when Buyer’s Agreement was got signed, on 18.08.2011, she had already paid an amount of Rs.21,68,524/-. By not offering Buyer’s Agreement, for signing in a reasonable time, the opposite parties also committed unfair trade practice. The complainant is a widow. Her interest needs to be protected”.

 

                Under above circumstances, it is held that by not executing Buyer’s Agreement and also allotment letter, after receiving huge amount of Rs.14 lacs, i.e. equal to about 60% of the total sale consideration, the opposite parties were guilty of providing deficient service to the complainant and also indulged into gross unfair trade practice

10.         To defeat the claim of the complainant, the opposite parties, placed reliance on letters dated 10.10.2014 Annexure R-3 and 23.10.2015 Annexure R-4, to contend that development at the site was complete and plot of the complainant was ready for possession and also that he was asked to get executed the documents like agreement, allotment letter etc. but he failed to do so.

                 In the first instance, it is submitted that the opposite parties have failed to prove, as to by which mode, letter dated 10.10.2014 Annexure R-3 was allegedly sent to the complainant, whereby he was informed that the plot was ready for possession. It is not proved that the said letter was ever received by the complainant. On the other hand, Counsel for the complainant denied receipt of the said letter by the complainant. As such, once it is not proved, as to by which mode, the letter Annexure R-3 was sent to the complainant, as such, receipt thereof by him, cannot be forcibly imposed upon him. Under these circumstances, it is held that the contents of letter Annexure R-3 are of no help to the opposite parties, as the same (letter) was never delivered to the complainant.

                As far as the letter dated 23.10.2015 Annexure R-4, is concerned, nothing was mentioned therein regarding possession of the plot of the complainant. It was only said that development work at the site has been completed and the opposite parties have offered and delivered possession of plots. The complainant was asked to make the remaining payment. It is pertinent to mention here that, in both the letters aforesaid, it was not mentioned as to what is the no. of the plot allotted to the complainant; on which date allotment was made; what was the size of the plot; what were the dimensions of the plot; what was the location of the plot etc. etc. Even this much has not been proved on record, by placing on record cogent evidence, that by 10.10.2014, when the letter Annexure R-3 was allegedly sent (only assuming not holding that it was sent) to the complainant offering possession of the plot, the project was developed and made habitable. Had development been complete and had the opposite parties been in a position to deliver possession of the plots, in the said project, they would have definitely placed on record a copy of the completion or partial completion certificate(s) having been obtained from the competent Authority, in that regard, which is not so in the present case. It is well settled law that the onus to prove that the project has been completed, is on the builder/the opposite parties. It was so said by the National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. In the present case, it is very strange that not even a single document has been placed on record, by the opposite parties, in respect of the project, in question, to prove that it had been developed in 2014 or even as on today and they were actually ready for offer and delivery of possession of the plot to the complainant. In case, all the development activities had been undertaken, then it was for the opposite parties, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development and construction activities, are being undertaken and near completion, but they failed to do so.

                Under above circumstances, it is held that letter dated 10.10.2014 Annexure R-3 was never sent to the complainant and as far as letter dated 23.10.2015 Annexure R-4 is concerned, it appears that it was sent to the complainant, only with a view to extract the remaining sale consideration of the plot purchased by the complainant, by giving false statement that the development work has been completed and the opposite parties have already offered possession of plots to some allottees.  

11.         Further contention of the complainant that when the project was launched and sold, requisite permissions were not available with the opposite parties, also appears to be correct. Similar issue in respect of this project only, came up for consideration before this Commission, in the case of Harjot Devi Vs. M/s Chandigarh Royale City Promoters Pvt. Ltd. and ors., Consumer Complaint No.924 of 2016, decided on 30.06.2017. On the basis of documents available in that case, it was noted by this Commission as under: -

“Heavy reliance has been placed by opposite parties no.1 to 3 to say that the project was started and completed as per the provisions of The Punjab Apartment and Property Regulation Act, 1995 (in short the PAPRA). The relevant facts came out from the record of the case file, are noted as under:-

21.11.2011	=	Application moved to CTP for grant of permission of change of land use.
28.11.2011	=	Permission granted for change of land use for 77.87 acres (R-3 page 24)
03.01.2012	=	NOC from PPCB (page 27)
24.02.2012	=	NOC from Irrigation Department Ropar (page 30)
03.08.2012	=	Issue of letter of intent
31.12.2012 Valid upto 30.12.2015	=	Licence to develop a colony
09.09.2014	=	Certificate of registration as promotor
18.11.2014	=	Provisional NOC for approval of passage by Highway Administrator cum Executive Engineer ,Central Works Division, Mohali.
07.01.2015	=	Final NOC by PSPCL, Patiala
27.01.2015	=	NOC from Forest Division Officer subject to obtaining NOC from National Highway/P.W.D.
19.05.2015	=	Provisional NOC for approval of passage by Highway Administrator cum Executive Engineer , Central Works Division, Mohali.
18.04.2016	=	NOC from Aviation Angle issued by Director of OPs (ATS), New Delhi (at page 57)

It is not in dispute that the plot, in question, was, in the first instance sold to Smt.Krisna Rani wife of Ranjit Kumar and Smt.Urmila Rani wife of Harkesh Kumar Bhagta, in the month of March 2011. The complainant purchased the said plot from the above  named persons, on making payment of an amount of Rs.3 lacs, to the opposite parties on 03.03.2011. The facts mentioned above, makes it very clear that when the project was launched and sold, not even an application has yet been filed by opposite parties no.1 to 3 for grant of Change of Land Use (CLU) certificate. It was moved only on 21.11.2011. There was a complete violation of the provisions of PAPRA”.

 

12.         Similar controversy also came up for consideration, qua this project launched by the opposite parties, in the case of Seema Nagpal Vs. M/s Chandigarh Royale City Promoters Pvt. Ltd. and others, Consumer complaint bearing No.39 of 2015, decided on 04.05.2015. In that case also, the complainant alleged that when the project was launched and sold, requisite permissions were not available with the company and further buyer’s agreement was not offered for signing and offer of possession was not ever made. In reply to the said complaint, somewhat similar defence was taken by the Company, which is being taken in the present case. Rejecting similar contentions raised by the Company, this Commission observed as under:-

“20. It is evident from the registration form that at the time of launching the project in June 2011, the Opposite Parties did not have the necessary permissions/ approvals, from the Competent Authorities. As is evident, they even did not have the permission for Change of Land Use (CLU). The same  for an area measuring 77.87 Acres falling in village Karala, Tehsil Derabassi, Distt. Mohali for residential purposes was accorded vide Chief Town Planner, Punjab’s Memo No.8782 CTP(PB) SP.432(M) dated 28.11.2011 (Annexure R-4) with reference to the Opposite Parties application dated 21.11.2011. The complainant submitted application for allotment on 3.6.2011. Thus, when the Opposite Parties launched the project, they had not even applied for the change of land use permission. It is further borne out, from the letter dated 05.01.2012 (Annexure R-6) that the Punjab Pollution Control Board wrote to the Administrative Officer (licencing), GMADA for considering the case of the project of Opposite Parties, for grant of licence under Section 5 of Punjab Apartment & Property Regulation Act, 1995 (hereinafter for short to be referred as PAPRA 1995). However, the licence to develop a residential colony was granted to the Opposite Parties by GMADA vide Licence bearing No.LDC-10/2012 (Annexure R-16) on 31.12.2012 and Letter of Intent was issued vide Memo No.GMADA/ CTP/2012/250 dated 03.08.2012 (Annexure R-13). The Opposite Parties launched the project without obtaining the necessary permissions and approvals.

21.   The Opposite Parties started booking the residential plots, and duping the innocent customers of their hard earned money, much earlier to the grant of approval to their project by GMADA through licence dated 31.12.2012. According to law, they could not start the booking of residential plots, and obtain money from the innocent consumers, before actually the licence and all the permissions and sanctions had been granted to them, by the Competent Authorities. In Kamal Sood Vs. DLF Universal Ltd., III (2007) CPJ 7 (NC), it was held that a builder should not collect money, from the prospective buyers, without obtaining the required permissions, such as zoning plan, layout plan, schematic building plan etc. It is the duty of the builder, to obtain the requisite permissions or sanctions, such as sanction of construction etc., in the first instance, and, thereafter, recover the consideration money from the purchasers of the flats/buildings. The ratio of law, laid down in the aforesaid case, is squarely applicable to the facts and circumstances of the instant case. If the bookings are made and the booking amount is collected, before obtaining the necessary sanctions, permissions, licences and without getting the necessary approvals, the same amounted to indulgence into unfair trade practice, on the part of the builder. Since the Opposite Parties failed to comply with the condition referred to above, as stipulated in the Expression of Interest (Annexure C-1), it was their bounden duty to refund the amount, paid by the complainant, alongwith the prevailing bank interest.

22.   Not only this, even the provisional allotment letter dated 06.05.2014 (Annexure C-9) in respect of Plot No.1110 was issued in favour of Mrs. Seema Nagpal, complainant, after a gap of more than 03 years, from the date of Expression of Interest (Annexure C-1). The Opposite Parties even did not mention anything regarding execution of Plot Buyer’s Agreement in their written statement, what to talk of placing the same on record. On the other hand, the Opposite Parties by raising different, illegal and unjustified demands, indulged into unfair trade practice. Clearly there was no transparency in the whole process. Undoubtedly, the act of the Opposite Parties, in the absence of requisite permissions/approvals from the Competent Authority, amounted to deficiency, in rendering service and indulgence into unfair trade practice.”

 

                The controversy involved in the present cases are squarely covered by the ratio of judgment passed by this Commission in the above cases.

13.         Qua this very project, similar opinion was taken by this Commission, in the case of Sh.Sandeep Singla Vs. M/s Chandigarh Royale City Promoters Pvt. Ltd. and others, consumer complaint no.172 of 2014,  decided on 12.02.2015, which was allowed in favour of the complainant and  refund of the amount deposited alongwith interest, compensation and litigation costs was ordered by this Commission, in the said case. Feeling aggrieved against the order dated 12.02.2015, the builder (opposite parties no.1 and 2 in this case), went in First Appeal bearing No.189 of 2015 before the National Commission, New Delhi, which was dismissed at the preliminary stage, vide order dated 21.10.2016.

                Furthermore, in the present case, sequence of events makes it very clear that there was a complete violation of the provisions of PAPRA. According to Section 2(n) of PAPRA, “development works” means internal development works and external development works. According to Section 3 of Chapter II, the promoter is liable to do as under in a Colony to be developed by it (relevant extract):-

“3.General liabilities of promoter.-(1) xx xx xx xx

(2) A promoter who develops a colony or who constructs or intends to construct such building of apartments shall,- (a) make full and true disclosure of the nature of his title to the land on which such colony is developed or such building is constructed, such title to the land having been duly certified by an attorney-at-law or an advocate of not less than seven years standing, after he has examined the transactions concerning it in the previous thirty years ; and if the land is owned by another person, the consent of the owner of such land to the development of the colony or construction of the building has been obtained;

xxxx xxxxx xxxxx xxxx

(c) given inspection on seven days, notice or demand,-

xxxx xxxxx xxxxx xxxx

 

(i) of the layout of the colony and plan of development works to be executed in a colony as approved by the prescribed authority in the case of a colony; and

xxxx xxxxx xxxxx xxxx

(g) specify, in writing, the date by which possession of the plot or apartment is to be handed over and he shall hand over such possession accordingly;

xxxx xxxxx xxxxx xxxx

 (j) not allow persons to enter into possession until an occupation certificate required under any law is duly given by the appropriate authority under that law and no person shall take possession of an apartment until such occupation certificate is obtained ;

Further according to Section 4(1) of the PAPRA, no promoter shall issue an advertisement or prospectus, offering for sale any apartment or plot, or inviting persons who intend to take such plot to make advances or deposits, unless:-

“(a) the promoter holds a certificate of registration under subsection (2) of section 21 and it is in force and has not been suspended or revoked, and its number is mentioned in the advertisement or prospectus; and

(b) a copy of the advertisement or prospectus is filed in the office of the competent authority before its issue or publication.

(2) xxxx xxxx xxxx xxxx The advertisement or prospectus shall be available for inspection at the office of the promoter and at the site where the building is being constructed or on the land being developed into a colony, alongwith the documents specified in this section and in section 3.”

According to Section 5 of the PAPRA, it is provided as under:-

“5.(1) Any promoter, who desires to develop a land into a colony, shall make an application in the prescribed form alongwith the prescribed information and with the prescribed fee to the competent authority for grant of permission for the same and separate permission will be necessary for each colony.

 (2) On receipt of the application under sub-section (1), the competent authority, after making enquiry into the title to the land, extent and situation of the land, capacity of the promoter to develop the colony, layout of the colony, conformity of the development of the colony with the neighbouring areas, plan of development works to be executed in the colony and such other matters as it may deem fit, and after affording the applicant an opportunity of being heard and also taking into consideration the opinion of the prescribed authority, shall pass an order, in writing, recording reasons either granting or refusing to grant such permission.

(3) Where an order is passed granting permission under subsection (2), the competent authority shall grant a licence in the Consumer Complaint No.273 of 2016 10 prescribed form, after the promoter has furnished a bank guarantee equal to twenty five percent of the estimated cost of the development works certified by the competent authority and the promoter has undertaken to enter into an agreement in the prescribed form for carrying out completion of development works in accordance with the conditions of the licence so granted.

 (4) The licence granted under sub-section (3) shall be valid for a period of three years and will be renewable from year to year on payment of prescribed fee.”

Section 9 of the PAPRA relates to the maintenance of accounts of the sums taken by promoters and the same reads as under:-

“9. Accounts of sums taken by promoters.- The promoter shall maintain a separate account in any scheduled bank of sums taken by him from persons intending to take or who have taken apartments or plots, as advance, towards sale price or for any other purpose, or, deposit, including any sum so taken towards the share capital for the formation of a co-operative society or a company, or towards the outgoings (including ground rent, if any, municipal or other local taxes, charges for water or electricity, revenue assessment, interest on mortgages or other encumbrances, if any, stamp duty and registration fee for the agreement of sale and the conveyance); and the promoter shall hold the said moneys for the purposes for which they were given and shall disburse the moneys for those purposes including for the construction of apartments and, in the case of colonies, for meeting the cost of development works, and shall on demand, in writing, by the competent authority make full and true disclosure of all transactions in respect of that account and shall not utilize for any other purpose the amounts so collected for a particular purpose.”

According to Section 14(ii) :-

“in the case of a colony, to obtain completion certificate from the competent authority to the effect that the development works have been completed in all aspects as per terms and conditions of the licence granted to him under section 5.”

Then Rules were framed under Section 45 of the PAPRA; namely, Punjab Apartment and Property Regulation Rules, 1995 (in short, “the Rules”) and according to Rules 7, 8 & 17 of these Rules , it has been provided as under:-

“7. Disclosure regarding registration and licence – The promoter shall disclose the number of his certificate of registration granted under sub-section (2) of section 21 and, in the case of a colony, also the validity of licence issued under sub-section (3) of section 5 and display the certificate of registration and the licence so granted at a conspicuous place in his office and make it available for inspection to the persons taking or intending to take an apartment or a plot in the colony and to a person authorized by the competent authority.”

 

14.         Perusal of the above provisions of PAPRA and Rules reveals that the opposite parties were required to be registered and to get a licence to develop the Colony under above referred provisions. However, it is evident from the afore-extracted table (para 11 of this order) that licence to develop a colony was obtained only on 31.12.2012 i.e. after launching and selling the project, in question. Further, according to Section 4 of the PAPRA, no Promoter shall issue an advertisement or receive an application, in respect of its project, unless it holds a certificate of registration. Furthermore, certificate of registration as promoter was obtained by opposite parties, only on 09.09.2014 i.e. after about more than two years of selling the project. According to Section 4(2) of the PAPRA, the opposite parties were not entitled to receive the applications till the CLU and layout plan of the colony regarding the development works and validity of the licence is there but in the present case, they have sold the project before doing so. Furthermore, it also revealed that permissions/NOCs from various Departments were obtained by the opposite parties, even after allotment of the plot, in question, like NOC from PSPCL was obtained on 07.01.2015; NOC from Forest Department was obtained on 27.01.2015, NOC from aviation angle was obtained on 18.04.2016 etc. Thus, it is proved on record that opposite parties have not complied with the basic provisions under the PAPRA and Rules made thereunder before inviting the applications and on the other hand, have been taking all the money from the complainant, which act amounted to unfair trade practice.
15.         As far as the plea raised by Counsel for the opposite parties, to the effect that the complainant is not a consumer, as he has purchased the said plot, for future gain, it may be stated here that there is nothing on record, that the complainant is a property dealer, and deals in the sale and purchase of property, on regular basis, and as such, the plot, in question, was purchased by him, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. Mere residing in a house, address whereof has been mentioned in the headnote of the complaint, did not debar the complainant from the purview of consumer. Since, the opposite parties have leveled allegations against the complainant, as such, the onus lays upon it, to prove it, which it has failed to do so. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  2016 (2) CPJ 316. In view of above, plea raised by the opposite parties, in this regard, being devoid of merit stands rejected.
16.         Further contention of opposite parties that the complaint is barred by limitation is devoid of any force. Once it has been above, that neither allotment letter was issued, nor buyer agreement in respect of the plot purchased by the complainant was sent to him for signatures, nor physical possession thereof was offered and delivered to the complainant as on date, nor amount paid was refunded to him, as such, there is a continuing cause of action, in his favour, in view of principle of law laid down, in  Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal  Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC). Under these circumstances, it is held that the complaint is not at all barred by limitation. The plea raised by the opposite parties, in this regard, being devoid of merit, must fail, and the same stands rejected.
17.         Further contention of Counsel for the opposite parties, that this Commission is not having territorial jurisdiction, is also liable to be rejected. Payment receipts Annexures C-2 and C-4, in the sum of Rs.6.20 lacs and Rs.4 lacs, respectively, reveal that the same were  issued from Registered Office of the opposite parties, i.e. from SCO No.44, Sector 20-C, at Chandigarh, meaning thereby the amount was received by the opposite parties, at their Chandigarh Office.  On account of these receipts, a part of cause of action has arisen in favour of the complainant, to file this complaint, before this Commission, at Chandigarh. Plea raised regarding territorial jurisdiction by the opposite parties, stands rejected.
18.         An objection was also raised by the opposite parties, that only a Civil Court can decide this case, as the proceedings before this Commission, are summary in nature. It may be stated here, that the complainant hired the services of the opposite parties, for purchasing the plot, in the manner, referred to above. It is a simple case of non-issuance of allotment letter; non-execution of buyer’s agreement in respect of the plot purchased by the complainant; non-completion of the project in question within a reasonable period; nonpayment of delayed compensation for the period of delay in handing over possession of the plot; and non-offer of actual physical possession of the plot, purchased by the complainant against sale consideration, which act amounts to deficiency in providing service and adoption of unfair trade practice. Section 2 (1) (o) of the Act, defines service as under:-

“service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both,  housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service”

From the afore-extracted Section 2(1)(o) of the Act, it is evident that housing/construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. Vs.  Union Of India and  Ors. Etc., II (2012) CPJ 4 (SC),  it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of the Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, Section 3 of the 1986 Act, provides an alternative remedy. Even if, it is assumed that the complainant has a remedy to file a suit, in the Civil Court, the alternative remedy provided under Section 3 of the Act, can also be availed of by him, as he falls, within the definition of consumer. In this view of the matter, objection taken by the opposite parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

                The above objection taken by the opposite parties is also bereft of merit, in view of judgment passed by the Hon’ble National Commission, titled as M/s. Karwa Developers & 3 Ors. Vs. Shree Vinayak Co-Operative Housing Society Ltd. & 3 Ors., First Appeal No. 980 of 2016,  decided on 3^rd  March, 2017, wherein, a similar plea of the builder was negated, while holding as under:-

“We also do not find any substance in the plea taken by the appellant that under clause 14(a) of the development agreement, the complainant was required to file a civil suit under the Specific Relief Act only, because they were asking for monetary relief.  The State Commission rightly stated that the relief sought in the complaint were on account of deficiencies committed by the OP Developers, vis-à-vis, the society.  Since there is a specific clause in the agreement for giving the possession of the flat within specific time frame and penalty has been provided if the developers failed to develop the same, the society was well within its rights to file consumer complaint against the OP builder.”

 

19.         Now coming to the plea taken by Counsel for the opposite parties, that the complainant failed to make payment, as per the payment plan, it may be stated here that the said plea is bereft of merit, in view of candid admission on the part of the  opposite parties in their joint written statement, in para no.10 (reply on merits) to the effect that “It is submitted here that the complainant have deposited the instalments as per payment plan.”
20.         It is evident from the facts mentioned above that when the project in question was sold, neither CLU nor any other permission was available with the opposite parties. Facts clearly indicate that the opposite parties were guilty of launching a project against mandate of law. In view of above contention of Counsel for the opposite parties that the complainant waived of his right to raise any objection because it was known to him that the project has still not been approved, however, he opted to purchase, is liable to be rejected. The complainant has no where admitted that he can be made to wait for an indefinite period, at the whims and fancies of the opposite parties. Under above circumstances, the complainants, in all the cases, are held entitled to the amount deposited alongwith interest from the respective dates of deposits and also compensation for mental agony and physical harassment.
21.         In the connected case bearing no.12 of 2018, an attempt has been made to by-pass the above provision by showing the sale as an expression of interest to purchase a plot. It has been also so said before this Commission, at the time of arguments, by Counsel for the opposite parties, in the connected cases, that sale of the plot had not been confirmed, as such, there was no need to get the Buyer’s Agreement executed. It may be stated here that it was an outright sale, when first payment was accepted by the opposite parties, in the year June 2011. Thereafter also, the amount was received by the opposite parties, from time to time. A similar contention was raised by a builder, namely M/s Manohar Infrastructure and Constructions Pvt. Limited, which was rejected by this Commission, in Appeal No.248 of 2016, decided on 31.08.2016, titled as M/s Manohar Infrastructure and Constructions Pvt. Limited Vs. Sh.Tilak Raj Bakshi, wherein it was observed as under:-

“Furthermore, as is evident from the documents on record, the appellant is also guilty of violation of Section 6 of the Punjab Apartment and Property Regulation Act, 1995, (in short the PAPRA Act). In a very deceptive manner, an attempt has been made to show actual sale of plot, as an expression of interest. As has been held in earlier part of this order, vide document Annexure C-2, the terms and conditions of sale settled to make payment was also made available. Once it is so, by not offering the Buyers Agreement for signing in a reasonable time, say two to three months but on the other hand, after a lapse of many years of the sale of plot, the appellant has committed an unfair trade practice.”

 

22.         In the said connected case (12 of 2018), another frivolous objection was raised that this Commission did not vest with pecuniary jurisdiction; that correct court fees has not been paid by the complainants; and that the complaint is bad for non-joinder of necessary parties.

                First coming to the objection regarding pecuniary jurisdiction, it may be stated here that as per Section 17 (1) (a) of the Act, the State Consumer Disputes Redressal Commission shall have pecuniary jurisdiction to entertain any complaint, complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore. It was also so elucidated elaborately by a Large Bench of the National Commission in the case titled as Ambrish Kumar Shukla and 21 ors. Vs. Ferrous Infrastructure Pvt. Ltd., Consumer Case No.97 of 2016, decided on 07.10.2016.  Relevant part of the said order reads thus:-

“It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it’s the value of the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum.  The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing the deficiencies in the goods purchased or the services to be rendered to the consumer.  Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction.  If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds Rs. 1.00 crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint.  For instance if a person purchases a machine for more than Rs.1.00 crore, a manufacturing defect is found in the machine and the cost of removing the said defect is Rs.10.00 lacs, it is the aggregate of the sale consideration paid by the consumer for the machine and compensation, if any, claimed in the complaint which would determine the pecuniary jurisdiction of the Consumer Forum.  Similarly, if  for instance, a house is sold for more than Rs.1.00 crore, certain defects are found in the house, and the cost of removing those defects is Rs.5.00 lacs, the complaint would have to be filed before this Commission, the value of the services itself being more than Rs.1.00 crore. ”

                In the present case, if total value of plot, in question i.e. Rs.20 lacs, plus compensation claimed by way of interest @12% p.a. on the amount deposited to the tune of Rs.5.50 lacs; compensation to the tune of Rs.3 lacs claimed for mental agony and physical harassment, if taken into consideration, it exceeds Rs.20 lacs and fell below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint. The objection taken by the opposite parties that this Commission lacks pecuniary jurisdiction, being devoid of merit, must fail and the same stands rejected.

                Now coming to the objection with regard to court fees, we have gone through the requisite documents and found that correct fees to the tune of Rs.2,000/- being the claim of the complainant above Rs.20 lacs and below Rs.50 lacs, has been paid by the complainant. Objection taken in this regard, as such, being frivolous, is rejected.

                As far as the objection taken to the effect that the complaint is bad for non-joinder of necessary parties, it may be stated here that the complainant by way of placing on record payment receipt Annexure C-2 dated 24.06.2011, has proved that the amount of Rs.5.50 lacs, had been paid by him, towards price of the said plot, to the opposite parties, at their Chandigarh Office only. As such, this Commission is satisfied with the party, which has been sued by the complainant, against which, refund of amount alongwith compensation etc. has been claimed by him. There is a direct privity of contract between the complainant and the opposite party sued by him, in the said consumer complaint (12 of 2018). Under these circumstances, objection taken is not tenable, and is accordingly, rejected.

23.         In connected case bearing No.653 of 2017, as per the version of Counsel for the opposite parties, at some point of time, the matter was compromised between the parties, in the sum of Rs.5 lacs, as such, now the complainant cannot file the consumer complaint. It may be stated here that the record reveals that out of the said cheques, first one of which, when presented before the bank concerned was dishonoured on 05.08.2017. However, no settlement deed executed between the parties, has been placed on record. Only an unsigned compromise deed Annexure R-2, which is neither signed by the opposite parties nor by the complainant, has been placed on record, which has no significant value in the eyes of law. It appears that it might be a fraud played by the opposite parties, upon the consumers with false promise, that post-dated cheques were issued, first one of which bounced. When no further amount was paid, the complainant was justified to come to this Commission, by way of filing this consumer complaint. Had the opposite parties placed on record fully executed copy of the compromise deed and had the cheques aforesaid, issued by them, in favour of the complainant, being in full and final settlement deed, been enchased by him, the matter would have been different. As such,  plea taken by the  opposite parties,  in this regard, being devoid of merit, must fail and the same stands rejected.
24.         No other point was urged by the contesting parties.
25.         For the reasons recorded above, all the four complaints are partly accepted, with costs, with following directions:-

 

In Consumer complaint bearing no.647 of 2017, the opposite parties, jointly and severally are directed to:-

1. To  refund the amount of   Rs.14 lacs, to  the complainant,  alongwith simple interest @ 15% p.a. from the actual dates of deposits made by him, within 2 months, from  the  date of receipt of a certified copy of  this order.
2. To pay compensation, in the sum of Rs.1,00,000/-for causing mental agony and physical harassment, to the complainant, as also escalation in prices, within 2 months, from the date of receipt of a certified copy of this order.
3. To pay cost of litigation, to the tune of Rs.22000/- to the complainant, within 2 months, from the date of receipt of a certified copy of this order.

 

In Consumer complaint bearing no.648 of 2017, the opposite parties, jointly and severally are directed to:-

1. To  refund the amount of   Rs.14 lacs, to  the complainants,  alongwith simple interest @ 15% p.a. from the actual dates of deposits made by him, within 2 months, from  the  date of receipt of a certified copy of  this order.
2. To pay compensation, in the sum of Rs.1,00,000/-for causing mental agony and physical harassment, to the complainants, as also escalation in prices, within 2 months, from the date of receipt of a certified copy of this order.
3. To pay cost of litigation, to the tune of Rs.22,000/- to the complainants, within 2 months, from the date of receipt of a certified copy of this order.

 

 

In Consumer complaint bearing no.653 of 2017, the opposite parties, jointly and severally are directed to:-

1. To  refund the amount of   Rs.4 lacs, to  the complainant,  alongwith simple interest @ 12% p.a. (as prayed) from the actual dates of deposits made by him, within 2 months, from  the  date of receipt of a certified copy of  this order.
2. To pay compensation, in the sum of Rs.25,000/- for causing mental agony and physical harassment, to the complainant, as also escalation in prices, within 2 months, from the date of receipt of a certified copy of this order.
3. To pay cost of litigation, to the tune of Rs.11,000/- to the complainant, within 2 months, from the date of receipt of a certified copy of this order.

 

In Consumer complaint bearing no.12 of 2018, the opposite party is directed as under:-

1. To  refund the amount of   Rs.5.50 lacs, to  the complainants,  alongwith simple interest @ 12% p.a.  (as prayed) from the actual dates of deposits made by him, within 2 months, from  the  date of receipt of a certified copy of  this order.
2. To pay compensation, in the sum of Rs.25,000/-for causing mental agony and physical harassment, to the complainant, as also escalation in prices, within 2 months, from the date of receipt of a certified copy of this order.
3. To pay cost of litigation, to the tune of Rs.11,000/- to the complainant, within 2 months, from the date of receipt of a certified copy of this order.

26.         In case, the payment of awarded amounts at sr.no. (i) to (iii) is not made, within the stipulated period, then the amount awarded at sr.no.(i) of consumer complaints bearing No.647 of 2017 and 648 of 2017, thereafter shall carry penal interest @18% p.a. instead of 15% p.a. and of consumer complaints bearing No. 653 of 2017 and 12 of 2018, shall carry penal interest @15% p.a. instead of 12% p.a., from the date of default and amounts at sr.no.(ii) and (iii) shall carry interest @15% p.a. from the date of filing of the respective complaints, till realization.
27.         However, it is made clear that if the complainant(s) in any of the case above, have raised loan from any banking/financial Institution, for making payment towards the said units/plots, it shall have the first charge of the amount payable, to the extent, the same is due to be paid by them (complainants).
28.         Certified copies of this order be placed in connected case files also.
29.         Certified copies of this order be sent to the parties, free of charge.
30.         The file be consigned to Record Room, after completion.

Pronounced.

14.05.2018

Sd/-

 [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

 [DEV RAJ]

MEMBER

 

 

Sd/-

 [PADMA PANDEY]

MEMBER

Rg.