Punjab

Ludhiana

CC/23/203

Rajhvir Sharan Narang - Complainant(s)

Versus

Greater Ludhiana Area Development Authority - Opp.Party(s)

Shubhjeet Singh

05 Nov 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                             Consumer Complaint No:  203 dated 24.05.2023.                                       Date of decision: 05.11.2024. 

 

Raghuvir Sharan Narang S/o. Roshan Lal Narang, r/o.504/2, Model Gram, Block-26, Ludhiana-141002. M.62837-60191.                                                                                                                                     ..…Complainant

                                                Versus

Greater Ludhiana Area Development Authority, Near Rajguru Nagar, Ferozepur Road, Ludhiana through Estate Officer.                                                                                                                                          …..Opposite party 

Complaint Under Section 35 of Consumer Protection Act, 2019.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. M.S. Sethi, Advocate

For OP                           :         Exparte.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Briefly stated, the facts of the case are that in the year 2020, the OP by an advertisement for allotment of residential plots in their 231 residential plot under 80:20 scheme at village Dad, Sua Road, Ludhiana, asked the interested applicants to apply through application along with earnest money for 125 sq. yards plot. The complainant stated that he applied for 125 sq. yards residential plot vide application in the year 2020 by paying an earnest money of  Rs.3,62,500/-. Even the complainant paid certain amounts vide receipts dated 10.11.2020 for plot having sr. No.29 and in this manner, paid a total amount of Rs.11,25,563/- i.e. Rs.3,62,500/-+Rs.6,79,688/-+Rs.83,375/-. The OP vide allotment letter dated 15.12.2020 informed that for allotment of plot bearing sr. No.29 (corner with park facing) measuring 125 sq. yards @ Rs.33,350/- per sq. yards disclosing the tentative cost of Rs.41,68,750/-. The OP also advised the complainant to pay the balance amount of Rs.31,26,564/- (Rs.41,68,750-Rs.10,42,186) being 75% of the tentative price of plot after adjusting Rs.10,42,186/-.

                   The complainant further stated that the SDO, Engineer (B&E) wing of the OP vide letter dated 28.01.2021 informed that now paper possession of plot No.129 measuring 115.20 sq. yards (Rakba 32”-1”+14’/2x45) is being given and spot demarcation shall be made after sanction of building plan. Thereafter, the OP vide letter dated 10.02.2021 on the basis of letter dated 28.01.2021 of SDO, Engineer (B&E) wing informed that now the total cost has been rescheduled in the light of reduced area of plot and now the cost of plot measuring 125.20 sq. yards is Rs.38,41.920/- and he is liable to pay the balance amount of Rs.27,93,196/- after adjustment of already paid amount and excess amounts. Then the complainant took bank loan of Rs.39,00,000/- from Indian Bank after granting permission dated 25.03.2021 by the OP to mortgage the plot No.29 measuring 115.20 sq. yards. The sale of said plot was executed on 30.09.2021 by the OP after receiving entire consideration amount of Rs.38,41,920/-. Entire sale deed expenses & stamp amount etc. were paid by the complainant. The complainant further stated that on 24.11.2021, he submitted the building plan for sanction with OP and deposited Rs.22,700/- including fee for security building plan, labour cess (approved map), map fee and cow cess but the OP failed to sanction/approve the building plan till today despite his various personal visits. Even lastly on 10.03.2023, when the complainant visited the OP knowing the status/cause/delay in delivery of building plan, the OP orally informed that the Hon’ble Punjab and Haryana High Court has directed to kept unencumbered 4 acres out of suit land comprised in Khasra No.635,678, 679, 680, 681, 682 Hadbast No.279, Village Dad, Distt. Ludhiana during pendency of suit and main case is still pending with Civil Court, Ludhiana which likely to take 3-5 years time and as such, they are unable to release the building plan as the land owned by the OP again require fresh demarcation of the entire land, which was allotted to the allottee, to handover the share of said person Sukhwinder Singh. Further in case any order passed in favour of Sukhwinder Singh and thereafter, whether said person agreed or not for selling his share to the OP till then, no construction could be allowed in spirit of the orders of High Court and now the complicated issue has arisen in case therefore, the OP refused to proceed further till final decision passed by the Hon’ble Court. The complainant also checked the sale deed dated 30.09.2021 but he also did not find any above said khasra numbers/hadbast number etc. in the sale deed. Moreover, in fact, Sukhwinder Singh initiated the civil suit as on 24.10.2019 against the OP and other previous land owners to the effect that he is owner to the extent of 1/4^th share in land measuring 18 bighas 01 biswa 09 biswani in disputed property on the basis of a will dated 05.09.1992.

                   The complainant further stated that the OP was having knowledge and record at the time of allotment of plots regarding pendency of civil suit qua the property and instead they succeeded in allotment of plots and received huge value/cost/price of the plots and as such this act of the OP amounts to deficient./negligent services and adoption of unfair trade practice. However, the complainant had made full payment for getting possession of allotted plot but the OP had not developed the area and even failed to get occupation and completion certificate of their project as well as failed to hand over possession of the plot to the allottees. Under compelling circumstances, on 11.03.2023 the complainant in writing requested the OP to refund the deposited amount but till date no response has been received from the OP and they have utilized the huge amount received from the Consumers. According to the complainant, the stipulated period of delivering the possession within 90 days of issue of allotment letter and approving the building plan and then the construction as to be completed within 3 years from the date of allotment i.e. 15.12.2020 but the OP has failed to fulfill its promise. The complainant further stated that the OP issued the allotment letter on 15.12.2020 or after execution of sale deed dated 30.09.2021 and the construction of the plot was required to be completed within 3 years. Even the OP vide their letter dated 28.01.2021 admitted the fact of giving paper possession and for providing actual demarcation only after approval of building plan which till date has not been approved nor delivered by the OP. As such, the physical possession can only be given by the OP after physical demarcation which was not done by the OP and as such, the terms and conditions of the allotment are null and void and against the interest and rights of the allottee Consumer. The complainant claimed to have suffered financial loss/burden etc. due to non-approval of building plan and non-delivery of physical possession by the OP. In the end, the complainant has prayed for issuing direction to the OP make arrangement, release of building plan after approval and also to pay interest on the paid/deposited amount of Rs.41,97,589/- besides paying compensation of  Rs.5 Lacs and litigation expenses of Rs.22,000/- by holding the OP liable for rendering deficient/negligent services and for adopting unfair trade practice. In alternative, the complainant further prayed for directing the OP to refund Rs.41,97,589/- and to pay compensation of Rs.2,00,000/- and litigation  expenses of Rs.22,000/-.

2.                Notice of the complaint was sent to the OP, but the OP did not appear despite the service of notice and as such, the OP was proceeded against exparte vide order dated 17.08.2023.

3.                In exparte evidence, the complainant tendered his affidavit as Ex. CA and reiterated the averments of the complaint. The complainant also placed on record documents i.e. Ex. C1 is the copy of receipt of Rs.6,79,688/-, Ex. C2 is the copy of receipt of Rs.83,375/-, Ex. C3 is the copy of allotment letter, Ex. C4 is the copy of letter dated 28.01.2021 regarding giving paper possession Ex. C5 is the copy of letter dated 10.02.2021 for depositing remaining amount, Ex. C6 is the copy of letter dated 22.03.2021 for permission to mortgage the property for raising loan, Ex. C7 is the copy of receipt of e-Registration fee, Ex. C8 is the copy of sale deed, Ex. C9 is the copy of receipt of Rs.22,700/-, Ex. C10 is the copy of sanction letter of loan, Ex. C11 is the copy of Aadhar Card of the complainant and closed the evidence.

4.                We have heard the arguments of the counsel for the complainant and also gone through the complaint, affidavit and annexed documents produced on record by the complainant.

5.                From the allegations made in the complaint and the exparte evidence led in support thereof, which has gone unrebutted on the file, it has been established that the complainant applied for a residential plot measuring 125 sq. yards in 93 Residential Plot under 80:20 scheme, Vill. Dad, Ludhiana on free hold basis which was allotted to the complainant through draw held on 05.10.2020.  The complainant was allotted a plot bearing No.29 (Corner with Park Facing) measuring 125 sq. yards in the said scheme vide allotment letter dated 15.12.2020 Ex. C3 having tentative cost of Rs.41,68,750/- @ Rs.33,350./- per square yards. The complainant paid the requisite earnest money and other amounts vide receipts Ex. C1 and Ex. C2. However, the area of the property was reduced to 115.20 sq. yards and a paper possession was given to the complainant vide letter dated 28.01.2021 Ex. C4.  The complainant in order to deposit the remaining amount towards the plot accorded permission from the OP to mortgage the property for raising loan and as such, the OP vide letter dated 22.03.2021 Ex. C6 granted permission to avail loan by mortgaging the property and as such, the complainant raised home loan  from Indian Bank, BRS Nagar Branch, Ludhiana vide sanction letter Ex. C10 and paid the entire amount of the plot to the OP. The OP executed sale deed dated 30.09.2021 Ex. C8 of plot in question in favour of the complainant. Thereafter, the complainant applied for approval of building plan and deposited the requisite fee of Rs.22,700/- with the OP for this purpose which the OP received vide receipt dated 24.11.2021 Ex. C9 but according to the complainant, the OP did not approved the site plan for raising construction over the plot in question on the pretext that one Sukhwinder Singh co-sharer of the land so acquired by the OP, has filed a writ petition before the Hon’ble Punjab and Haryana High Court and the Hon’ble High Court has directed to kept unencumbered 4 acres out of suit land comprised in Khasra No.635, 678, 679, 680, 681, 682 Hadbast No.279, Village Dad, District Ludhiana during pendency of suit before the Civil Court, Ludhiana. The complainant claimed that before making advertisement as well as allotment of plot and registration of sale deed in his favour as well as in favour of other allottees, the OP was having knowledge regarding pendency of said litigation and as such, the OP has adopted unfair trade practice by utilizing the huge amount so received from the allottees. As the OP did not fulfill its obligation of handing over physical possession of the plot in question as well as for not approving the building plan for construction over the plot in question, the complainant requested the OP for refund of the deposited amount but no response was received. Rather the OP has not chosen to contest this case and has been proceeded against exparte. In this regard, reference can be made to 2021(3) CLT 309 in Gaurav Prehar Vs Altus Space Builders Pvt. Ltd. And others in which the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh has made the following observation:-

“(i) Consumer Protection Act, 2019, Sections 2(42), 47 & 49(2) -Housing constructions – Pleadings - Ex-parte - Adverse inference –Held - The whole purpose of pleadings is to give fair notice to each party of what the opponent’s case is and to ascertain with precision the point(s) on which the parties agree and those on which they differ-The purpose is to eradicate irrelevancy-The complaint is a concise statement of facts and if no reply is filed to the complaint, the averments made therein are deemed to have been admitted-OP was proceeded against exparte-Thus, all the averments made in the compliant are deemed to have been admitted by it and the evidence led by the complainant stands unrebutted; for which an adverse inference is to be drawn against OP-complaint partly allowed”

6.                In the present case, undeniably, only paper possession was given to the complainant and the actual physical possession of the plot was never handed over to the complainant.  The OP was not in a position to transfer the legal, valid and unencumbered title along with delivery of complete and effective possession of the plot and amenities to the complainant and other allottees even at the time of launching of scheme due to pendency of litigation. The interest of the complainant and other allottees were compromised by concealing the factum of previous litigation by the OP. It is settled law that no one can take advantage of one’s own wrong and the act and conduct of the OP amounts to adoption of unfair trade practice and rendering deficient services. So the complainant is entitled to compensation and refund of the deposited amount.

7.                In this regard, reference can be made to Ireo Grace Realtech Pvt. Ltd. Vs Abhishek Khanna & another (2021) 3 SCC 241, the Hon’ble Supreme Court has held that “allottees who have not been given possession, cannot be made to wait indefinitely for possession, nor they can be bound to take possession in other phase of the project. Such allottees are entitled to refund of entire amount deposited by them.” Further reference can be made to Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and others Vs DLF Southern Homes Pvt. Ltd. & others (2020) 16 SCC 512, whereby the Hon’ble Supreme Court of India has held that “failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within the contractually stipulated period, amount to deficiency.” Further, it has been held by the Hon’ble Supreme Court that “in case of gross delay in handing over possession by builder beyond contractually stipulated period, flat purchaser is entitled to just and reasonable compensation for such delay and such compensation not constrained by terms of rate which is prescribed in an unfair bargain.

                   As such, after appreciating the documents on record, this Commission is of the view that the complainant is entitled to compensation for deficiency of service and unfair trade practice on the part of the OP.

                   The provisions of the Consumer Protection Act enable a Consumer to claim and empower the Commission to redress injustice done to the complainant. The amount of compensation can be determined by taking into facts and circumstances of each case and also mitigating circumstances that may arise in favour of the OP as well. Reference can be made to 2020(3) Apex Court Judgments 27 (S.C.) in DLF Home Developers ltd. (Earlier known as DLF Universal Ltd.) & another Vs Capital Green Flat Buyers Association Etc.

8.                The case of the complainant stands on different pedestal from the other allottees as a conveyance deed Ex. C8 has already been executed in favour of the complainant. 

                   The Consumer Protection Act, 2019 introduced the concept of “Unfair Contract” as envisaged in Section 2(46) of the Act itself. Section 2(46) of the Consumer Protection Act is reproduced as under:-

“(46) “unfair contract” means a contract between a manufacturer or trader or service provider on one hand, and a consumer on the other, having such terms which cause significant change in the rights of such consumer, including the following namely:-

1. requiring manifestly excessive security deposits to be given by a consumer for the performance of contractual obligations; or
2. imposing any penalty on the consumer, for the breach of contract thereof which is wholly disproportionate to the loss occurred due to such breach to the other party to the contract; or
3. refusing to accept early repayment of debts on payment of applicable penalty; or
4. entitling a party to the contract to terminate such contract unilaterally, without reasonable cause; or
5. permitting or has the effect of permitting one party to assign the contract to the detriment of the other party who is a consumer, without his consent; or
6. imposing on the consumer any unreasonable charge, obligation or condition which puts such consumer to disadvantage.”

 However, Section 47 (1) (ii) and 58 (1) (ii) of the Consumer Protection Act, 2019 confers the original jurisdiction for declaring particular contract to be unfair upon State Commission as well as National Commission. Section 34(1) of the Consumer Protection Act confers the jurisdiction upon District Commission as it starts within the word “Subject to other provisions of Act” which obviously means “Subject to the Section 47 (1) (ii) and 58 (1) (ii) of the Consumer Protection Act”. The Hon’ble Supreme Court in Ireo Grace Realtech Pvt. Ltd. Vs Abhishek Khanna & another (2021) 3 SCC 241 had observed that powers have been conferred on the State Consumer Commission and the National Commission were conferred with the power to declare contractual terms that were as unfair to consumers as null and void. Hence the jurisdiction of  District Commission to entertain the complaint against unfair contracts have been excluded and as such, this Commission is not empowered to declare  the policy in question as unfair contract. 

                   In these circumstances, it would be just and appropriate, if the complainant will submit a ‘draft of cancellation of sale deed’ to the office of the OP within 30 days from the date of receipt of copy of order and the OP is directed to accord its consent and render necessary assistance before the office of Sub Registrar/Competent Authority, Ludhiana for execution of the said cancellation deed within 30 days from the date of receipt of draft of cancellation deed from the complainant.  The OP is further directed to refund the deposited amount of Rs.41,97,589/- to the complainant with interest @9% per annum from the date of filing of the complaint till its actual payment along with a composite costs of Rs.20,000/-

9.                As a result of above discussion, the complaint is allowed exparte with an order that the complainant will submit a draft of cancellation of sale deed to the office of the OP within 30 days from the date of receipt of copy of order and the OP is directed to accord its consent and render necessary assistance before the office of Sub Registrar/Competent Authority, Ludhiana for execution of the said cancellation deed within 30 days from the date of receipt of draft of cancellation deed from the complainant.  Thereafter, the OP is further directed to refund the deposited amount of Rs.41,97,589/- to the complainant with interest @9% per annum from the date of filing of the complaint till its actual payment. The OP shall further pay a sum of Rs.20,000/- (Rupees Twenty Thousand only) as composite costs to the complainant.  Compliance of order be made within 30 days from the date of cancellation of sale deed. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

 

10.               Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

 

(Monika Bhagat)                              (Sanjeev Batra)               Member                                         President  

 

Announced in Open Commission.

Dated:05.11.2024.

Gobind Ram.