BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.156 of 2021

      Date of Instt. 15.04.2021

      Date of Decision: 17.10.2023

Jaipal Singh aged 41 years S/o S. Pritpal Singh Bindra, R/o H. No.1278, Silver City, Green Tower, Zirakpur, 140603, Punjab.

..........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. 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 attracted and allured by OP venture for development of Surya Enclave Extension, published and advertised by OP to provide shelter to needy public with ultra-modern facilities and amenities with high quality and standard UNDER 94.97 Acre Development Scheme in Surya Enclave Extension Jalandhar, applied for plot also promoted by various nationalized banks. The complainant submitted application no.075397, 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 No.638420/11 dated 06/09/2011 drawn on Oriental Bank of Commerce, Service branch, Chandigarh along with all the requisite documents completed and complied with all the requirements. Receipt of Application for Allotment letter dated 06/09/2011 in respect of amount for earnest Money Deposit for Rs.6,05,000/-. The complainant had applied for the plot in the year 2011 after making the said payment. The complainant was allotted plot No. 65-D, under Vikas Scheme 94.97 Acre (Surya Enclave Extension), Jalandhar, as per allotment letter bearing no.JIT/2678 dated 23-12-2011, in lucky draw held on dated 04/11/2011 at the rate of Rs.17,000/- per sq. ft totaling to Rs.60,52,000/- approved by resolution no.335 dated 08/11/2011 further approved by government vide memo no.8/31/11(9)-1SS2/3213 dated 07/12/2011. The site was to be developed within in 2 ½ 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. 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 prospectus, to augment the sales of the said plots to make money and profits by the OP. 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.69,77,230/-. After the complainant had paid the amount by installments as stated supra, it was found that opposite party had deceived the complainant by misleading and fraudulent advertisement since the allotment of the plot was fake, the area where the plots 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 as 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. 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 illegal occupancy on many plots which have not been removed till date in some of the blocks. 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 a letter requesting for possession and status of the said plot in respect of the stage of development and possession to the OP. The callous attitude on the part of the OP can further be seen from the fact that even after full and final payment and request for No Due Certificate, letter dated 18/02/2020, the OP has failed to issue the same till date. It is further pertinent to bring to notice of this Commission that the OP has on purpose charged the complainant twice for Agreement for sale, which again tantamount to deceptive trade practice. To the utter shock and dismay of the complainant subsequently came to know that the area/land on which the said scheme was curved out by the opposite party was under litigation before the Hon'ble Punjab and Haryana High Court, Chandigarh since in 2011. The delay in delivery of possession per se attract Odium of deficiency, negligence and unfair and deceptive trade practice envisaged under the provision of Consumer Protection Act 2019 as amended up-to-date (hereinafter in short 'the Act') on the part of OP 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 Rs.69,77,230/- deposited by the complainant with interest @ 18% per annum from the date of deposit upto the date of actual payment to the complainant. Further, OP be directed to pay a compensation of Rs.5,00,000/- for causing mental tension and harassment to the complainant and Rs.20,000/- as litigation expenses.

2.                Notice of the complaint was given to the OP, who filed 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.65-D of the Development Scheme 94.97 Acre known as Surya Enclave Extension was allotted to the complainant vide allotment letter no.JIT/2678 dated 23.12.2011. The said allottee entered into sale agreement regarding the plot in question vide sale agreement dated 18.02.2020 i.e. at a belated stage after 9 years from allotment in contravention of provisions of allotment letter. As per the terms and conditions of the of allotment the allottee could take possession after entering in to sale agreement. Whereas as per clause 5 the allottee has to enter into sale agreement within 30 days from the date of allotment and then seek possession after entering into sale agreement. In the present case the allottee clearly defaulted and entered into sale agreement after 9 years and as such was entitled to seek possession only after entering into sale agreement whereas the Jalandhar Improvement Trust never refused possession rather had been performing its due part throughout IT does not lie in the mouth of the complainant to say that Trust defaulted in any manner whatsoever when he himself defaulted and flouted the terms and conditions of allotment and failed to entitle himself to seek possession as per terms and conditions of allotment. As per clause 13 the plot was sold on as is where is basis and the allottee has to accept the dimensions/ area as per site. As per the terms and conditions of the agreement the allottee was to raise construction on the aforesaid plot within 36 months. In the meantime in the official routine the case was sent to the Engineering Branch for site inspection and preparing of site plan for handing over possession. Thus the demarcation was complete and respondent was in a position to handover the possession at site. But the complainant did not approach the Jalandhar Improvement Trust to take possession whereas rather in February 2020 he applied for NDC also from JIT. Whereas all these almost 9 years he had never given any letter or objection regarding possession. As such it was to be considered that he had the possession of the plot especially after entering into sale agreement of the said plot and applying for NOC. However, suddenly the complainant has now filed the present complaint and demanded refund of amount and interest against the allotment terms and conditions and rather further raised wrong contentions about the lack of facilities etc and made other ill-founded baseless excuses and sought basic facilities along with possession at site. It may be seen that later on as the complainant felt that he failed to raise construction in time and that delay in taking possession by him was on no legal and valid grounds and the complainant may became liable for payment of non-construction charges and so as to avoid his liability of payment of extension fee/non construction charges, on account of not raising construction at site, now suddenly the complainant has took wrong pleas against Jalandhar Improvement Trust simply to avoid the payment of due non-construction charges. It is for the allottee or transferee to approach the Jalandhar Improvement Trust and seek possession and it is not the liability or responsibility of department/Jalandhar Improvement Trust to trace out the people and give possession to them. When any allottee/transferee does not approach the department/Jalandhar Improvement Trust to take possession the said person cannot blame the Jalandhar Improvement Trust for their own defaults. As per the allotment terms and conditions itself allotee/complainant never approached the opposite party for taking possession and now leveled wrong allegations regarding facilitates etc. Whereas all basic facilities to the complainant are complete at site. Thus, it is quite evident that JIT has throughout been in a position to deliver the possession of the plot in question and has never refused to give possession to the complainant and even the basic facilities for development are complete as held out by the OP in its report obtained even in May-June 2021 and the complainant is wrongly alleging the non existence of basic works at site in the Scheme. However Jalandhar Improvement Trust has throughout been in a position to deliver the possession of the plot in question and has never refused to give possession to the complainant and even now Honb'le District Consumer Disputes Redressal Forum may fix any time or date and without any delay or ado the OP is ready to deliver the possession of the plot in dispute to the complainant. 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 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 JIT. The JIT 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, laches and negligence from filing the present complaint and claiming the relief as prayed in the present complaint. 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 No.65-D of 94.97 acre scheme to the complainant and payment to the same is admitted, but the other allegations as made in the complaint are categorically denied and lastly prayed 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.65-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-4/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-6 to Ex.C-12. The contention of the complainant is that despite having complied with all the requirements and full payment by the complainant, the construction work was not carried out by the OP nor the possession was offered 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.C13 to Ex.C19.

7.                The contention of the OP is that the present complaint is time barred. The allotment was made on 23.12.2011 and the possession could be taken after entering into sale agreement within 30 days from allotment. But the complainant failed to do so. The complainant himself has failed to take possession, but this contention is not tenable as the news publications and copies of photographs 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-13 to Ex.C-15 and Ex.C-16 (consisting of 4 pages). 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 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. 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 and the complaint filed by the complainant was held to be within limitation.  

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 OPs. The OPs have alleged that as per Clause 5 the allottee has to enter into sale agreement of the plot within 30 days and as per clause 6, if he does not to do so then the JIT shall be within its rights to cancel the allotment and forfeit all deposited amount, but this contention is not tenable. If the complainant had failed to take the possession within 30 days from the allotment, then it is the duty of the OP to send a notice to the complainant to take the possession, if the complainant does not turn up the OPs can cancel the allotment, but the OP failed to send any notice nor the allotment was ever cancelled. Though the agreement to sell was executed late, but even after the execution of agreement, the OP has not complied with the conditions of the allotment letter. 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. 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 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. 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    Jyotsna               Dr. Harveen Bhardwaj     

17.10.2023         Member                          Member           President