BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.22 of 2021
Date of Instt. 15.01.2021
Date of Decision: 17.10.2023
Sh. Jaswant Singh aged about 45 years S/o Sh. Nand Singh, R/o VPO Harchowal, Tehsil Bhatala District Gurdaspur.
..........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 housing with ultra-modern facilities and amenities with high quality and standard UNDER 94.97 Acre Development Scheme in Surya Enclave Extension Jalandhar, with the hope of settling in Jalandhar for better educational prospects for his children since he does not own any other property, applied for plot also promoted by various nationalized banks. The complainant submitted application no.88984, on prescribed form to OP for plot measuring 200 Sq. yds. along with 10% earnest money of Rs 3,40,000/- through a Union Bank of India, Ranjit Avenue, Amritsar, Cheque bearing No.298448 after availing loan from the said bank alongwith rate of interest @ 10.75%duly repaid by the complainant alongwith an amount of Rs.4,000/- as interest amount on the said loan, along with all the requisite documents completed and complied with all the requirements, statement of account of Union Bank of India, Ranjit Avenue, Amritsar, for period 07/09/2011 to 01/12/2020. The complainant was allotted plot No.241-D, under the Vikas Scheme 94.97 Acre (Surya Enclave Extension), Jalandhar, as per allotment letter bearing no. JIT/2829 dated 26-12-2011, in lucky draw held on dated 04/11/2011 at the rate of Rs.17,000/- per sq. ft totaling to Rs 34,00,000/-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 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. It is pertinent to mention here that the fee for the agreement of sale was duly paid vide receipt no.48924 dated 25/01/2012 and the same was duly entered into but the copy of the same was not provided to the complainant for reasons best known to the OP. The complainant made the last final payment on 23/06/2014 for an amount of Rs.5,35,500/- vide Cheque No. 009847 by HDFC Bank. 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. The complainant paid the whole purchase price of plot in the sum of Rs.34,00,000/- to OP as per the allotment letter dated 26-12-2011 along with interest amount as and when due and penalty amount which in total amounted to Rs.39,91,109/- for the said purpose the complainant took loan from Punjab National Bank, Branch Office Adda Bham, Gurdaspur from an amount of Rs.4,41,820/- at the rate of 9.60% in the year 2013 finally repaid in full on 27/01/2016 within interest amount Rs.66,969/-. The total Amount paid was Rs.39,20,140/- to OP excluding the amount of Rs.70,969 as interest paid on loan amount from the banks. 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 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 despite the fact that complainant personally has also made a written request for the same for which the OP refused to give any receiving. 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. 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 till date. The condition further worsens during the rainy season as water logging 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 opposite party 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. To the utter shock and dismay of the complainant he came to know in the year 2014 that the area/land on which the said project was curved out by the opposite party was under litigation before the Hon'ble Punjab and Haryana High Court, Chandigarh since in 2011. The said project was started by the opposite party even prior to taking of the actual possession of the total land under the said scheme. It is further pertinent to mention that Punjab National Bank, G.T. Road Branch, Jalandhar, has affix a notice board under section 13 (4) of The Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (also known as the SARFAESI Act)and taken physical possession of part of the land as opposite party failed to return the loan amount to the said bank. These acts on the part of the OP clearly show their intentions and conduct towards public. The 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 alongwith all the facilities and development as has been advertised and agreed upon between the complainant and the OP and the approved site plan within 2 months alongwith interest @ 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 refund the amount of Rs.39,20,140/- alongwith interest amount of Rs.70,969/- to amounting to Rs.39,91,109/- 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.25000/- as cost of proceedings and Rs.15000/- on account of expenses paid for making the complaint.
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 time barred. The allotment was made 26.12.2011 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 failed to take possession and till date before filing of the present complaint had no objections/correspondence with JIT/OP and now the present complaint is time barred. 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.241-D of the Development Scheme 94.97 Acre known as Surya Enclave Extension was allotted to the complainant vide allotment letter no. JIT/2829 dated 26.12.2011 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/lump sum. 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 allotee 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 his own responsibility. The said allottee entered into sale agreement regarding the plot in question belatedly and failed to take possession as per the allotment terms and conditions. As per the terms and conditions of the of 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 the possession after entering in to sale agreement. As per terms and conditions of the agreement the allottee was to raise construction on the aforesaid plot within 36 months. The complainant was asked to enter into sale agreement and take possession as per allotment terms and conditions. As such although the complainant/allottee had failed to seek possession and raise construction still the JIT issued letter to show its readiness to deliver possession and offered clear possession with all requirements to the complainant. Thus, the demarcation was complete and respondent was in a position to handover the possession at site but complainant failed to take possession from JIT. The complainant has failed to put up any letter/ document whereby possession was ever denied to him. The complainant has rather instead of taking possession and complying with the allotment terms and conditions sat silent for all these years and the complainant has now suddenly started raising frivolous pleas, however, he was informed vide aforesaid letter that the basic facilities have been provided for raising construction at site as per allotment conditions and water and sewerage works are also allocated to Water & Sewerage Board but still he failed to take possession of the plot. However, as the complainant did not want to take possession and become liable for payment of non-construction charges and may be only purchased the plot for investment purpose so as to avoid his liability of payment of extension fee/non construction charges, on account of not raising construction at site, he deliberately neglected to take possession. Thereafter suddenly the complainant started making false and frivolous imputations against Jalandhar Improvement Trust although he himself defaulted in terms of allotment letter. It is noteworthy that it is for the allottee 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 are complete at site. Thus it is quite evident that 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 the basic facilities for development are complete as held out by the OP and the complainant is wrongly alleging the non existence of basic works at site in the Scheme. Thus, it is quite evident that complainant already has the possession of the said plot. 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 the Forum may fix any time or date and without any delay or ado the opposite party 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 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 No.241-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.241-D of the development scheme 94.97 acre known as Surya Enclave Extension was allotted to the complainant, vide allotment letter dated 26.12.2011, which has been proved as Ex.C-3/O-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-5 to Ex.C-11. 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 offerred 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.C12 to Ex.C22.
7. The contention of the OP is that the present complaint is time barred. The allotment was made on 26.12.2011 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 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-12 to Ex.C16 (consisting of 6 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. Ex.O-2 shows that litigation was pending and till 2016 there was no development. 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
