BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.444 of 2020

      Date of Instt. 10.12.2020

      Date of Decision: 14.05.2024

Anil Thakur, aged about 42 years, son of Shri Jati Ram, resident of House No.B-IX-667/24, Santokh Pura, Jalandhar.

..........Complainant

Versus

Jalandhar Improvement Trust, Jalandhar through its Chairman/Administrator.

….….. Opposite Party

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Sh. Jaswant Singh Dhillon       (Member)

Present:       Sh. R. K. Arora, Adv. Counsel for the Complainant.

                   Sh. Brijesh Bakshi, Adv. Counsel for OP.

Order

Dr. Harveen Bhardwaj (President)

1.                The instant complaint has been filed by the complainant, wherein it is alleged that the complainant became consumer of the OPs after when he applied for allotment of 153 sq. yard plot in 94.97 acre development scheme at Jalandhar Improvement Trust, Jalandhar known as Surya Enclave Extension by making a payment of earnest money amounting to Rs.2,60,100/- which was just 10% of the total price of the said plot of 153 Sq. Yards. Consequently, the complainant was issued allotment letter no.JIT/914 dated 07-06-2016 and a Plot no.97-C measuring 153 sq. yards at a price of 17,000/- per sq. yard totaling Rs.26,01,000/- was allotted to the complainant on his application for allotment of plot in General Category under the above said development scheme of OP. As per the details mentioned in clause no.16 of the allotment letter, the complainant was required to pay, a total sum of Rs.26,01,000/- along with cess @6% amounting to Rs.15,660/- and agreement fee of Rs.1000/- aggregating Rs. 27,58,060/-out of which an amount of Rs.2,60,100/- was already paid as application money. The complainant was allowed to pay the said amount in installments together with interest as detailed in clause no.16 of the said allotment letter. Thereafter as per the terms and conditions of allotment letter, the following payments were made after the issuance of allotment letter dated 06.06.2016, towards the sale price of the said plot i.e. Rs.28,14,313/-. As per the clause no.7 of the allotment letter dated 07-06-2016, the OP undertaken that the plot in question will be made available to the allottee along with all the development facilities in the area on making payment of all the installment towards the price development facilities, which were required to be paid within 2½ years and the possession of the plot can be obtained upon execution of agreement to sell. By making timely payment of the installments, the complainant complied with all the terms and conditions of the allotment letter and also completed all the formalities for execution of the agreement to sell and all other necessary documents but when for the purpose of seeking possession of the plot in question, the complainant visited the spot, he was shocked to notice that there was no development at all and it was even difficult to the locate the boundaries of said area of Surya Enclave Extension as there were fields with no development activities therein. On the one hand, the OP kept on receiving the installment towards the price of plot under a developed colony with all the amenities like roads, water supply and electricity supply etc and on other hand, the OP did not carry out any development activity and as such, failed to deliver the plot as well as also failed to carry out any development in the said colony of Surya Enclave Extension at Jalandhar. The complainant made many requests and demands for delivery of possession of the plot but it is pertinent to mention here that neither the possession of the plot has yet been delivered nor any development activity has ever been started meaning thereby the OP has misappropriated the public money for a purpose other than the development of the Surya Enclave Extension. On the pretext of the alleged stay orders of the Hon'ble High Court for some area, the OP did not develop any part of the said Surya Enclave Extension. Some time ago upon visiting at the site, the complainant was surprised to know that the site of the scheme area was lying in an absolutely abandoned condition and there was no touch of development at all at the site in question. Despite much propagation about the development of the scheme area, there was no sign of any development at the site. Even it was not possible to identify and locate the plot in question allotted to the complainant at the site nor there were any roads marked or constructed at the scheme site. So much so, even the possession of the scheme area had not been found to be taken by the JIT. It was transpired that the original land holders of the scheme land were not allowed the JIT to take possession of the site in question and they had obtained a stay order against the JIT restraining it from taking possession of the scheme land. It was further transpired that original land holders had not been given any amount of compensation by JIT and thus the development of the scheme land area could not take place. As such, the complainant was in a great fix as he had fallen into the trap of the OP and the complainant felt cheated in the hands of the OP. On the other hand, the complainant had also kept an eye over the development activities of the said colony, but, the OP did not carry out any development even after such a long period since the announcing of the launching of the present development scheme meaning thereby, it was the OP who kept the allottees awaiting for the development. Even as on today, the area of said colony is still lying in abandoned conditions and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to refund the total amount of Rs.28,14,313/- deposited by the complainant with the OP alongwith interest @ 18% per annum till the date of its realization and further OP be directed to pay a compensation of Rs.10,00,000/- for causing mental tension and harassment to the complainant and Rs.55,000/- as litigation expenses.

2.                Notice of the complaint was given to the OP, who appeared through its counsel and filed its reply and contested the complaint by taking preliminary objections that the above noted complaint is not maintainable against the answering respondent, in the present form under the law. It is further averred that the present complaint is an abuse of process of law. No actionable claim has ever arisen to the complainant to file the present complaint against the OP. The plot in question i.e. Plot No.97-C of the Development Scheme 94.97 Acre known as Surya Enclave Extension was alloted to the complainant vide allotment letter no.JIT/914 dated 07.06.2016 and the complainant received and acknowledged the same. As per the terms and conditions of the allotment forming a binding contract among the parties it was clearly mentioned that the allottee has to make the payment of sale price as per the agreed installment payment schedule. As per clause 2 to 4 the interest, penal interest and other charges on account of payment of installments/delayed payment etc. were duly conveyed and agreed by allottee. It was clearly mentioned in Clause 5 that the allottee has to enter into sale agreement of the plot within 30 days and as per clause 6, if he does not do so then the JIT shall be within its rights to cancel the allotment and forfeit all deposited amount. It was further clearly mentioned that the possession of the Plot can be taken after entering into sale agreement with the Trust. As per clause 13 the plot was offered as it is as per site and further it will not be the responsibility of JIT to level the uneven site. Thus, the terms and conditions were very clear and it was incumbent upon the allottee to enter into sale agreement of the plot and to deposit installments in time at her own responsibility. The said allottee entered into sale agreement regarding the plot in question vide sale agreement dated 04.08.2016. Thereafter the complainant instead of seeking or taking possession as per allotment conditions rather applied for issuance of No Dues Certificate vide his application no.1630 dated 06.12.2016. The NOC was prepared and issued to the complainant vide Letter No.JIT/4674 dated 09.12.2016. The NDC was duly received by the complainant on the date mentioned above. But the complainant who was otherwise approaching the Jalandhar Improvement Trust for issuance of NDC or deposit of installments did not seek possession and rather requested for issuance of Site Plan of the plot in dispute. The case was processed for the purpose of the same as per his request and the as per official reports the site was verified, vacant and ready for possession to be delivered to the complainant. But the complainant failed to receive the same or to take possession at site. Thus it is clear that the complainant failed to seek possession or take possession after execution of sale agreement although the same was readily available for handing over to him. It is further averred that the present complaint is false and frivolous even to the knowledge of the complainant and is not maintainable against the OP. It is further averred that there is no provision in the terms and conditions of allotment letter or sale agreement that in case of the successful applicants/allottees and transferees the surrender of the allotted plot can be made or the refund of sale money deposited or payment/part payment of the sale price can be refunded to allottee/transferee. Even otherwise the complainant is not entitled to any relief from this Forum. There is no provision in Punjab Town Improvement Act, Rules or Government instructions for refund of sale money. It is further averred that the present complaint is an abuse of process of law. No actionable claim has ever arisen to the complainant to file the present complaint against the OP. As per the terms and conditions of the allotment letter there is no default in the performance of the Jalandhar Improvement Trust. The Jalandhar Improvement Trust has never defaulted in performing any of its obligations under the allotment terms and conditions/rules etc. It is further averred that the complainant is barred by her own act, conduct and negligence from filing the complaint and claiming the relief as prayed in the present complaint. It is further averred that the Complainant is guilty of concealment of material facts and misstatement and has not approached this Forum with clean hands and deserves no relief from this Forum. On merits, the factum with regard to allotment of the plot and payment to the same is admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

3.                Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement.

4.                In order to prove their respective versions, both the parties have produced on the file their respective evidence.

5.                We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by the counsel for the complainant very minutely.

6.                It is admitted and proved fact that the plot No.97-C of the development scheme 94.97 acre known as Surya Enclave Extension was allotted to the complainant, vide allotment letter dated 07.06.2016, which has been proved as Ex.C-2/OP-1. The complainant has proved on record the receipts showing the payment of the plot made by the complainant to the OP. The receipts have been proved as Ex.C-3 to Ex.C-6. The contention of the complainant is that despite having complied with all the requirements and full payment made by the complainant, the possession was not offered even after lapse of many years. The photographs and Newspaper cuttings, which highlighted the conditions and progress in the area have been proved on record as Ex.C-7 to Ex.C12.

7.                The contention of the OP is that the complainant entered into sale agreement regarding the plot in question vide sale agreement dated 04.08.2016 Ex.O-2. The complainant instead of seeking or taking possession as per allotment conditions rather applied for issuance of No Dues Certificate, vide application Ex.O-3. NOC was prepared and issued to the complainant vide letter dated 09.12.2016 Ex.O-4. The complainant did not seek possession and rather requested for issuance of Site Plan of the plot in dispute, copy of the site plan is Ex.O-7. It is the complainant who did not take possession. But this contention is not tenable as the photographs and news publications have been proved on record by the complainant, which are from different newspapers and these are from 2020 onwards, which has been proved as Ex.C-7 to Ex.C12, show that the facilities and development in the Surya Enclave Extension is incomplete, meaning thereby there is no development at all. The OP has not produced on record any photograph or document from where it can be ascertained that the portable roads, water/sewerage and street lights etc. have been completed and the project was ready for taking possession and residing there. It has been held by the Hon’ble State Commission, in “Manoj Bagroy Vs. M/s N. H. Matcon” in consumer complaint no.429 of 2019, decided on 07.01.2020 that even if the possession is taken by the consumer, it would be a incomplete and invalid delivery of possession for the want of the amenities. It was observed by the Hon'ble State Commission in the above said case that the OP had not obtained the occupation certificate and completion certificate from the competent authorities to enable them to deliver the complete and effective possession to the allottess. Until and unless they obtain such certificate, it cannot be held that complete possession has been delivered and there is continuous cause of action in favour of the complainant till the obtaining of such certificates by the OP.  

8.                The complainant has alleged that the OP had not given the possession of plot to the complainant. As per the allotment letter, the conditions were not complied with by the OPs as the plots were not ready within prescribed period, therefore the OPs were not in a position to deliver the possession. The project was and still is not ready for giving possession. Thus, the fault is on the part of the OP. The OP has not produced the occupation and completion certificate duly issued by the competent authority showing that the basic amenities have been duly provided at the site. Even otherwise, Completion Certificate, as envisaged under section 14 of the Punjab Apartment and Property Regulation Act, 1995 (in Short "PAPRA") is the most essential document, which should have been produced with regard the matter in issue but the same has not been produced by the OP to prove that Plot in question as well as basic amenities in the entire complex have been completed in all respects. It has been held by the Hon’ble Supreme Court, in a case titled as ‘Samruddhi Co-Operative Vs. Mumbai Mahalaxmi Construction’ that ‘failure to obtain occupancy certificate is a continuing wrong and the complaint is not barred by limitation rather it is deficiency in service and complaint is maintainable’. It has been held by the Hon’ble State Commission, (U.T.) Chandigarh, in a case titled as ‘Sandeep Baweja vs Chandigarh Overseas Pvt. Ltd.’ that ‘Delay in possession-refund claimed-Held-it is settled law that when there is a material violation on the part of the builder, in not handing over possession by the stipulated date, the purchaser is not bound to accept the offer even if the same is made at a belated stage.’ In such circumstances, the complainant is entitled for the relief.

9.                In view of the above detailed discussion, the complaint of the complainant is partly allowed and OP is directed to refund the amount of the plot paid/deposited by the complainant with interest @ 9% per annum from the date of making deposits till its realization. Further, OP is directed to pay a compensation to the complainant for mental agony and harassment caused to the complainant, to the tune of Rs.30,000/- and litigation expenses of Rs.5000/-. The entire compliance be made within 45 days from the date of receipt of the copy of order and in case, the same is not done within 45 days, the OP shall be liable to pay additional interest @ 3% per annum to the complainant, on the amount of the Flat deposited by the complainant. This complaint could not be decided within stipulated time frame due to rush of work.

10.              Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated                             Jaswant Singh Dhillon                    Dr. Harveen Bhardwaj     

14.05.2024                       Member                             President