Punjab

Nawanshahr

CC/100/2016

Harjit singh - Complainant(s)

Versus

Executive officer - Opp.Party(s)

Cherry Sofat

15 May 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHAHEED BHAGAT SINGH NAGAR.

                  

                               Consumer Complaint No.  100/2016

                               Date of Institution                   :   03.11.2016      

Date of decision             :   15.05.2017

Harjit Singh S/o Jagat Singh R/o H. No.1548, Sector 69, S.A.S. Nagar, Mohali                                                

                                                                    ….Complainant

Versus

1.       Executive Officer, The Nawanshahr Improvement Trust, Nawanshahr District Shaheed Bhagat Singh Nagar (Punjab).

2.       Chairman, The Nawanshahr Improvement Trust, Nawanshahr District Shaheed Bhagat Singh Nagar (Punjab).

                                                                    ….Opposite Parties

                   Complaint under Section 12 of the Consumer Protection Act, 1986

ARGUED BY:

For complainant            :         Ms.Cherry Sofat, Advocate

For OP No.1&2             :         Sh.A.K. Sareen, Advocate

 

QUORUM:

S.KARNAIL SINGH, PRESIDENT

S.KANWALJEET SINGH, MEMBER

 ORDER

S.KARNAIL SINGH, PRESIDENT

1. This complaint has been presented by complainant through his attorney – Jagat Singh.  Copy of General Power of Attorney is placed on file. 
2. That the OP had launched a scheme for residential plots in Rajiv Gandhi Nagar and invited applications for the same.  The allotment of plots was to be made through lottery/draw of lots. After going through the advertisement complainant applied for a residential plot measuring 100 Sq. Yards and deposited a sum of Rs.66000/- vide draft No.975125 dated 10.12.2010 as earnest/advanced money vide form No.728 of State Bank of India as the complainant wanted to shift to Nawanshahr after retirement.  Copy of advertisement is appended as Annexure C-3A and 3/B.  Further application alongwith draft, receipt and allotment letter mentioned above are appended as Annexure C-4, 4/A, 4/B and C-5 respectively.  Through lottery draw/draw of lots on 30.06.2011 a plot bearing No.3552, measuring 100 Sq. yards was allotted to complainant.  The total price of the plot was fixed at Rs.7,92,000/-.  Immediately after allotment, complainant was directed to deposit 25% i.e. Rs.1,15,500/- of the total price of the plot (i.e. Rs.7,92,000/-) alongwith 4% cess of Rs.29040/- within 30 days from the date of issuance of allotment letter which was thereby made on 26.07.2011.  From 26.07.2011 onwards complainant started depositing installments and till date deposited all the installments as and when demanded by the OPs.  The agreement to sell/Form-D was executed between the complainant and the OPs.  Documents pertaining to agreement to sell are held by OPs.
3. That the OPs have issued No Dues Certificate vide letter No.133 dated 27.05.2014.  The said no dues certificate is placed on file.  Complainant has visited the OPs many a times and requested to deliver the possession of the said flat, however every time complainant was informed that basic amenities are required to be provided, which will be completed soon and possession will be delivered thereby. Whenever, complainant visited the spot, it was noticed that there had been no progress in the site plan and even today the said site of plot has not been connected with Pucca road and there are ditches of more than 15 feet deep; the land is like a chappar and there is no seepage of rain water.  Further not even the basic facilities like street light, green park and sewerage pipe and water supply are existing there.  The condition of site is in such a state neither OPs cannot handover any physical possession nor any such construction could be raised as the site is just a khud.  However all the such basic amenities stated above were promised at the time of allotment to be provided soon.  The complainant has visited the OPs at their office several times but they failed to give any satisfactory reply. Since five years has been elapsed, however neither any physical possession is delivered nor any work/construction is raised in order to provide basic amenities which are required for starting the construction of the plot in question.  On 20.04.2016 vide letter No.812 it is stated that complainant shall on 28.04.2016 by meeting the Engineer or J.E. receive the demarcation of said plot.  When complainant visited the spot it was found that the said site of plot has not been connected with pucca road and there are ditches of more than 15 feet deep; the land is like a chappar and not ready with basic facilities like street light, green park and sewerage pipe and water supply and as such there is unfair trade practices and deficiency of service on the part of OPs and as such necessity arose to complainant to file this complaint with prayer that complaint of complainant may kindly be accepted and OPs be directed to return the amount paid by complainant to the tune of Rs.11,56,774/- inclusive of interest @18% and also pay a sum of Rs.5,00,000/- as compensation for mental, physical and financial loss and Rs.60,000/- for litigation costs. 
4. Notice of the complaint was given to the OPs and accordingly OPs filed written reply whereby complaint is contested by taking preliminary objections that instant complaint is not maintainable due to willful defaults which has been committed by complainant.  It is further submitted that no notice has been served upon the OPs before institution of the present complaint, hence the complaint is not maintainable.  As per condition of policy, allottee was required to take the possession within 30 days from the allotment but the allottee do not approach to the OPs and is deemed that possession of the plot has been taken by the allottee  and further alleged that complaint is not maintainable due to mentioning of the wrong facts in the complaint.  Moreover there are basic amenities of water supply, street light, pakka road, park, sewerage and approached path (motorable) which already exists at the spot.  On merits, the factum in regard to purchase of plot as well as payment of price of plot is not disputed and this fact has been admitted and other averments made in the complaint are categorically denied and lastly prayed that complaint of the complainant is without merits and same is liable to be dismissed. 
5. In order to prove the complaint, attorney of complainant tendered his affidavit Ex.CW1/A alongwith photocopies of documents i.e. Ex.C-1 to Ex.C-10-B and photographs Ex.CX-1 to Ex.CX-4 and closed the evidence.
6. Similarly, counsel for OPs has tendered into evidence photocopies of documents Ex.OP-1 to Ex.OP-2 and affidavit of Rajesh Kumar, Executive Officer Ex.OPA and closed the evidence.  
7. We have heard the arguments of the learned counsel for respective parties and also gone through complaint file alongwith documents very carefully.
8. The learned counsel for the complainant argued that a residential plot bearing No.3552 in Rajiv Gandhi Nagar, Nawanshahr was allotted to complainant – Harjit Singh for total price of Rs.7,92,000/- and out of that 25% i.e. Rs.1,15,500/- was deposited at the spot and remaining was paid by way of installments and accordingly the entire amount has been deposited by complainant and no due certificate issued by OPs and same is Ex.C-7.  The said allotment was made in the year 2011 vide letter dated 30.06.2011.  The complainant has applied for allotment letter against advertisement given by OPs, but till today neither the possession of the plot is delivered nor basic amenities were provided at the spot.  As per letter of the OPs i.e. allotment letter dated 30.06.2011, the possession is required to be delivered within 30 days from the issuance of the said letter means up to 30.07.2011 and these factum also mentioned in the copy of agreement to sell which is not exhibited by either of the parties but copies of the same available on the file.  The same is form-D but despite written submission neither the possession delivered within 30 days from the date of allotment provided at the spot and more than five years elapsed and as such there is deficiency in consumer service on the part of OPs and unfair trade practice.  Therefore complainant is entitled to get refund the amount deposited by complainant and in support of her oral arguments, the learned counsel for complainant made reliance on the pronouncement by Hon’ble National Commission 2016 (4) CLT 236 titled as Pradeep Chowdhry Vs Unitech Ltd wherein it is held as under:-

“Housing Construction – Delay in delivery of possession – offer of possession of incomplete flat – held, flat should have been complete in all respects before possession was offered to the complainant – offering possession of the flat which is not complete in all respects, including the finishing work could not be held to be in conformity with the contractual obligation of the OP.”

And further made reliance on pronouncement of Hon’ble Chandigarh State Consumer Disputes Redressal Commission in 2015 (4) CPJ 91 titled as Gurpreet Singh , Abhishek Lal Vs Puma Relators Private wherein it was held as under:-

          “Development and amenities were incomplete at the time of offering possession – possession cannot be said to be valid and legal possession – refund with compensation, litigation cost and compound interest on deposited amount granted”

And further made reliance on pronouncement of Hon’ble Chandigarh State Consumer Disputes Redressal Commission in 2016 (2) CLT 566 titled as Amar Singh Vs Unitech Limited wherein it was held as under:-

          “Delay in possession – refund claim”  

And further prayed that complaint of complainant be accepted.

9. On the other hand, learned counsel for OPs gave more stress upon documents i.e. Ex.C-5, wherein in Para No.10, it is stated that as per government instructions, from the date of issue of this letter, within 30 days, the allottee will get possession at the spot in writing, if anybody fail to take possession within prescribed time then it is deemed that possession has been delivered and further submitted that there is no specific condition given in the brochure Ex.C-3 that the possession as well as basic amenities will be provided within 30 days if so then the complainant/allottee cannot pressurized the OPs to do so under any stipulated time and as such the instant complaint is without merits and liable to be dismissed with costs.
10. We have sympathetically considered the respective version of both the party and find that the main stress of the OPs is on allotment letter Ex.C-5 but the OPs have miserably failed to establish on the file that the said letter dated 30.06.2011, wherein in Para No.10 described that the possession is to be taken within 30 days from the date of allotment in writing, failing which it deemed that possession has been delivered.  But this clause is relates to brochure Ex.C-3 wherein it is categorically mentioned that basic amenities like wide roads, car parking, park, street light and water/sewerage etc will be provided but there is no evidence came on file whether these facilities have been provided in the locality, if so then possession cannot be delivered, no doubt OPs have placed on file some photographs but these photographs do not establish that the said photographs are of the said locality.  Photo-graphs do not show whether possession of the plot has been delivered to the complainant, but there is no sign of street light. There is no park or other amenities shown nor sewerage line and moreover the OPs himself wrote a letter dated 20.04.2016 Ex.OP-1 to one of the allottee – Kamaldeep Bhuchar that the possession be taken after demarcation from the Assistant Trust Engineer/J.E. and the OPs also wrote one letter Ex.OP-2, wherein it is categorically mentioned that basic amenities has been provided upto 30.06.2016 so it means that the delivery of possession as well as providing basic amenities have to be handed over to the complainant and other allottee in the month of April 2016, whereas the allotment letter was given on 30.06.2011, so five years has been lapsed, neither the possession have been delivered to the allottee/complainant nor basic amenities are proved.
11. So under these circumstances we find it is fit case where the judgments referred by counsel for the complainant is fully applicable and accordingly we reached to conclusion that the complainant is entitled for relief.
12. As an up-shoot of our above detailed discussion, it is clear that the case of the complainant is proved and therefore complaint of the complainant is partly accepted and OPs are directed to return the original price of the plot to the complainant i.e. Rs.7,92,000/- with interest @9% per annum from the date of last installment deposited by complainant i.e. 22.05.2014 (the letter dated 22.05.2014 is available on the file where by last installment was demanded from the complainant) till realization and further the OPs have directed to pay a compensation of Rs.30,000/- for mental harassment and agony and also directed to pay litigation expenses of Rs.5,000/-.
13. Entire compliance of aforesaid order be made within 30 days from the date of receipt of copy of this order.
14. Complaint could not be decided within stipulated time frame due to rush of work.
15. Copies of the order be sent to the parties, as permissible, under the rules.

Dated 15.05.2017                                                         

 

 

(Kanwaljeet Singh)                (Karnail Singh)

Member                                  President