BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

 Complaint No.426 of 2020

      Date of Instt. 24.11.2020

      Date of Decision: 15.05.2024

Sh. Chander Shekhar Sharma aged S/o Sh. Subhash Chander Sharma R/o Shekhar Enterprises, Congress Bazar, Pathankot.

..........Complainant

Versus

Jalandhar Improvement Trust, Model Town Road, Jalandhar City through its Executive Officer.

….….. Opposite Party

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)

                   Sh. Jaswant Singh Dhillon       (Member)   

Present:       Smt. Harleen Kaur, Adv. & Miss Anchita, Adv. Counsels 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 was attracted and allured by OP venture for development of Surya Enclave Extension, published and advertised by OP to provide housing with ultra-modern facilities and amenities with high quality and standard UNDER 94.97 Acre Development Scheme in Surya Enclave Extension Jalandhar, also promoted by various nationalized banks applied for plot. The complainant submitted application no.077526, on prescribed form to OP for plot measuring 356 Sq.yds. along with 10% earnest money of Rs.6,05,000/- through a Bank Draft bearing No.064900 dated 01/09/2011 along with all the requisite documents completed and complied with all the requirements. The complainant was allotted plot No.48-D, under the Vikas Scheme 94.97 Acre (Surya Enclave Extension), Jalandhar, as per allotment letter bearing no.JIT/2659 dated 23-12-2011 in lucky draw held on dated 04/11/2011. The rate of Rs.17,000/- per sq. ft. totaling to Rs.60,52,000/-. The site was to be developed within in 2½ years and the possession of the plot as per the allotment letter could be taken after the execution of the agreement of sale which was to be executed within 30 days of the allotment letter. Which the OP deliberately delayed despite full payment, last final payment made on 18/06/2014 for Rs.9,53,190/- through bank draft No.789279 by Bank Of India, Pathankot for reasons best known to the OP. The complainant has deposited all the requisite papers for the registration of the application with the necessary fee and other formalities and payment were completed within the stipulated period. The only formality which was to be completed was to give the possession of allotted plot duly completed with all the amenities and ultra-modern facilities as advertised and assured in the prospective, to augment the sales of the said plots to make money and profits by the OP.  Even after the complainant rightfully received the allotment letter and paid the earnest money amounting to Rs.6,05,000/-, the Complainant was not provided with the copy of agreement of sale. The complainant paid the whole purchase price of plot in the sum of Rs.60,52,000/- to OP as per the allotment letter dated 23.12.2011 along with interest amount as and when due and penalty amount which in total amounted to Rs.69,75,880/-. After the complainant had paid the amount by installments as stated supra, it was found that OP had deceived the complainant by misleading and fraudulent advertisement since the allotment of the plot was fake, the area where the plot has been allotted is uninhabitable and unlivable. Neither the OP has developed the site nor offered possession even after lapse of almost 9 years. The complainant was shocked to see the terrible condition on the spot. Photographs of the area are attached from which the condition of hygiene and amenities is quite evident, newspaper cuttings highlighting the condition of the area. There are no demarcations made by the department and plots cannot be identified, only verbally the plots have been shown by the representative of the OP. There are no motorable roads, water and sewage pipeline have not been connected to the main line thus making them unusable. Even the main connecting road to the city has not been completed till date and also no electricity connection is available. There is no electricity connection available till date. The condition further worsens during the rainy season as water clogging take place and with the area being used as a dumping ground the area emanates unbearable stink, there is an extensive growth of weeds. There is an illegal slaughter house being run on one of the plots in near area despite other illegal occupations. Even on the main access road to the C block has illegal occupancies which haven't been cleared till date. There is no possibility of carrying out construction in the said area, a total hazard medically also. The OP has no plausible explanation what so ever in respect thereto, it has been a long period since the date of allotment and the OP doesn't seem to be serious on the front of fulfilling its promised advertised plots. Even after protracted follow up and lapse of 9 years from the date of allotment OP was unable to give any valid and satisfactory reason and justification for unpardonable delay in making the area habitable and delivery of possession as per agreed amenities and facilities as assured to the complainant, till date tantamount to deceptive and unfair trade practice, deficiency in rendering service and deceiving the complainant. The complainant wrote many letters from time to time requesting for possession and status of the said plot in respect of the stage of development and possession to the OP. Delay is tainted with malafide and arbitrariness and purpose behind the curtain is a deceitful, modus operandi on the part of OP amounting to deceptive and unfair trade practice 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 deliver actual and physical possession of the plot bearing no.48-D under the Vikas Scheme 94.97 sq.yd. at Surya Enclave Extension allotted to the complainant along with all the facilities and development as has been advertised and agreed upon between the complainant and the opposite party and the approved site plan within 2 months along with interest at the rate of 18% on the amount deposited till the date of entering of agreement to sell and subsequent stipulated date for delivery of possession till the actual offer and delivery of physical possession of the said plot to the complainant or in the alternative to return/refund Rs.69,75,880/- paid/deposited by the complainant as mentioned herein above along with interest @18% p.a. from the date of deposit up to the date of actual refund to the complainant and to award compensation/punitive damages quantified to Rs.5,00,000/- under the Act for mental tension, pain and agony and harassment caused to and suffered by the complainant at the hands of OP and grant compensation of Rs.5,00,000/- on account of escalation in cost of land construction and to grant cost of proceedings of the complaint reckoned to Rs.25,000/- to the complainant and against and Rs.15,000/- on account of expenses paid for making the complaint.

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.48-D of the Development Scheme 94.97 Acre known as Surya Enclave Extension was allotted to the complainant vide allotment letter no.JIT/ 2659 dated 23.12.2011. It may be seen that the said allottee defaulted and on totally un-maintainable cause failed to enter into sale agreement and seek possession within 30 days from the date of allotment. But the allottee defaulted and failed to execute the sale agreement within 30 days. The said allottee entered into sale agreement regarding the plot in question vide sale agreement dated 03.03.2016. As per the terms and conditions of the allotment the development facilities were to be provided in the 2½ years from the date of allotment i.e. the period of payment of the price of the plot. The allottee could take possession after entering in to sale agreement. 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. 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 can be refund 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 his own act, conduct, laches and negligence from filing the present 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 counsel for the complainant very minutely.

6.                It is admitted and proved fact that plot No.48-D of the development scheme 94.97 acre known as Surya Enclave Extension was allotted to the complainant, vide allotment letter dated 23.12.2011, which has been proved as Ex.C-3/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 and draft have been proved as Ex.C-4 and Ex.C-9. The contention of the complainant is that despite having complied with all the requirements and full payment made by the complainant, neither the OP had developed the site nor offered possession even after lapse of almost 9 years. Photographs of the area and newspaper cuttings, which highlighted the conditions and progress in the area has been proved on record as Ex.C10 to Ex.C13.

7.                The contention of the OP is that the complainant defaulted and failed to execute the sale agreement within 30 days. Vide letter dated 23.02.2016 Ex.O-3 and letter dated 26.07.2017 Ex.OP-4, the complainant was asked to enter into sale agreement and take possession as per allotment terms and conditions. But this contention is not tenable as the news publications and photographs have been proved on record by the complainant, which are from different newspapers and these are from 2020 onwards, which have been proved as Ex.C10 to Ex.C13. All these news publication show that the facilities and development in the Surya Enclave Extension is incomplete, meaning thereby there is no development at all. The complainant wrote letters Ex.C-14 to Ex.C-16 and Ex.C-17 legal notice to the OP requesting for possession of the said plot, but to no effect. Ex.OP-3, the letter dated 23.02.2016 itself shows that the Hon’ble Punjab and Haryana High Court had stayed the possession from the landowner. It was only after 22.12.2015, the decision of the Hon’ble Punjab and Haryana High Court, the construction work allegedly was started. Ex.OP-4 shows that the complainant was asked to take possession, but nothing has been mentioned about the completion of the project. 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 facilities and amenities were not complete and the entire amount was paid by 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 fault is on the part of the OP. The OP has alleged that the possession could be taken after entering into sale agreement within 30 days from allotment as per Clause (5) of the allotment letter, but the complainant failed to do so. As per Ex.OP-2 the agreement to sell was executed on 03.03.2016 and the work of the project was on going on 23.02.2016 as per letter Ex.OP-3. This clearly proves that the project was not ready for handing over the possession.

9.                The OP has produced on record document Ex.OP-5 dated 09.12.2020, wherein the details of development works have been mentioned and as per this letter, the construction of roads from 16-D to 159-D were ongoing, meaning thereby the construction of roads was incomplete till 09.12.2020. This is clear cut deficiency in service. 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.

10.              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.

11.              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    Jyotsna              Dr. Harveen Bhardwaj     

15.05.2024         Member                          Member           President