BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

 Complaint No.236 of 2022

      Date of Instt. 14.07.2022

      Date of Decision: 26.07.2023

Jatinder Mohan Sharma aged about 68 years (Adhaar Card No.4946-6851-6361) S/o Sh. Madan Lal Sharma, R/o 20, Green Park, Jalandhar at present 136, Near Income Tax Colony, Shankar Garden, Model Town, Jalandhar.

..........Complainant

Versus

Jalandhar Improvement Trust, Model Town Road, Jalandhar City through its Executive Officer. Email ID:itjalandhar@gmail.com.

….….. 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, applied for plot also promoted by various nationalized banks. The complainant had earlier filed an application before the Real Estate Regulatory Authority, Punjab, Chandigarh, but since this project of Jalandhar Improvement Trust is not RERA registered, subsequent to decision of the Hon'ble Apex Court ‘M/S Newtech Promoters and Developers Pvt. Ltd. Versus State of UP and Others etc.’ implemented vide circular dated 06/12/2021, with respect to nature of cases to be filed before RERA, the present complaint had to be withdrawn with liberty to file a fresh before competent Forum, causing lot of harassment and loss of time and money to the complainant due to, OP not having registered the said project with RERA. The complainant had applied for plot measuring 200 Sq. yds. along with 10% earnest money of Rs 3,40,000/- through a Punjab National Bank, after availing loan from the said bank, which was duly repaid by the complainant alongwith an interest amount of Rs.46,209/- for period 07/09/2011 to 30/03/2013 on the said loan, along with all the requisite documents completed and complied with all the requirements. The complainant was allotted plot No.166-D, under the Vikas Scheme 94.97 Acre (Surya Enclave Extension), Jalandhar, as per allotment letter bearing no.JIT/2775 dated 23-12-2011, in lucky draw held on dated 04/11/2011 at the rate of Rs.17,000/- per sq. yds. 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. As per the said allotment letter in case of delayed payment the OP was entitled to receive interest at the rate of 11% in case of delay for one month, 12% in case of delay for two months, 13% for delay of three months, 14% for delay for four months, 15% for delay for five months and 16% for delay for six months. To the extent that after period of 6 months if the allottee failed to pay the installment the plot shall be confiscated by the opposite party. In the event of confiscation of plot on default the re-allotment will be done to the allottee only after the payment of interest as penalty, 20% restoration charges and 6% penalty on the amount shall be calculated as per governmental instructions/directions from time to time. 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. First payment for the agreement of sale was duly made vide receipt no.49185 dated 17/02/2012 charged Rs.950/-, but the complainant was again made to make payment amounting to Rs.500/- for agreement to sale dated 18/03/2019 paid vide receipt no.70050. No date was purposely got mentioned on the said agreement of sale. 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 23-12-2011 along with interest amount as and when due and penalty amount which in total amounted to Rs.39,46,725/- for the said purpose the complainant took loan from Punjab National Bank, Pension Branch, Chandigarh Road, Hoshiarpur, for an amount of Rs.3,40,000/- in the year 2011 finally repaid in the year 2013 alongwith an interest amount Rs.46,209/-. The total Amount paid after adding the interest amount paid to the bank on the loan is Rs.39,92,931/-. 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 10 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. Even though the OP is falsely claiming to have started the development work and alleged demarcations of plots on sites but the actual position is the opposite well supported by the photographs and various new articles. 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, 120 ft. road not connected to motorable through Damoria Bridge as advertised and promised. The manhole sewerage of Guru Gobind Singh Avenue is blocked because of which the sewerage effluents are filling up the plots in the D-block of Surya Enclave Extension. No electricity connection is 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 are illegal occupations even on the main access road which passes through C block 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 promise for the advertised plots. The said scheme was to be developed as well equipped with ultra-modern facilities and well developed surroundings but now it has come to the knowledge of the complainant that opposite party is moving the illegal colony of Kazi Mandi in the area adjacent 6:50 acre, which was reserved for multistory flats as advertised, thereby which in turn will also be effecting the locality supposed to be developed as ultra-modern and further diminishing the value of plots in the adjacent area of D-block. To the utter shock and dismay of the complainant he came to know in the year 2014 subsequent to request letter dated 18/07/2014 for possession that the area/land on which the said project was curved out by the OP 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. The OP has not given any firm date of handing over of the possession of the plot and only mention vaguely under clause 7 of the allotment letter that development works will be accomplished within 2½ years and then subsequent to agreement to sale the possession can be taken over. No specific date has been mentioned. As per settled principle of law under the Consumer Protection Act a confirmed date should have been given of handing over of the possession, at the time of taking bookings itself and the booking amount, which also amounts to unfair trade practice. Even after protracted follow up and lapse of more than 10 years from the date of allotment, OP has been 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 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 return amount of Rs.39,46,725/- alongwith interest amount of Rs.46,206/- total amounting to Rs.39,92,931/- paid by the complainant as mentioned herein above alongwith interest @ 18% per annum from the date of deposit upto the date of actual payment to the complainant. Further, OPs be directed to pay a compensation of Rs.5,00,000/- for causing mental tension and harassment to the complainant and Rs.25,000/- as cost of proceedings.

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 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 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.166-D of the Development Scheme 94.97 Acre known as Surya Enclave Extension was allotted to the complainant vide allotment letter no. JIT/ 2775 dated 23.12.2011 and the complainant received and acknowledged the same. The terms and conditions of the allotment letter are binding upon the allottee. As per the terms and conditions of the allotment letter the allottee could enter into sale agreement within 30 days from the date of allotment letter and thereafter the allottee could take possession from the OP. The complainant entered into sale agreement with the OP after a period of about 8 years. As per the terms and conditions of the allotment the allottee could take possession after entering in to sale agreement. But despite execution of sale agreement dated 18.03.2019 the complainant failed to take possession or even file any application for possession. Whereas it was stood understood that he had took possession of his own accord because as per clause 6 of the sale agreement he had undertook to raise construction within 36 months. But the complainant failed to raise construction or to take any further steps and thus he is bound to pay the non-construction charges as per clause 6 of the sale agreement and now to save himself he has wrongly filed the present compliant claiming non-delivery of possession. 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 he was entitled to seek possession after entering into sale agreement within 30 days but he miserably failed to either approach or writes even a single letter to the opposite party to take possession whereas the Trust never refused possession rather had been performing its due part throughout. Thus, clearly it does not lie in the mouth of the complainant to say that Trust defaulted in any manner whatsoever when he had defaulted and flouted the terms and conditions of allotment and failed to seek possession as per terms and conditions of allotment. As per clause 12 the plot was offered as it is as per site 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. Whereas all these almost 11 years from allotment he had never given any letter or objection regarding possession. 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 the 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 Improvement Trust simply to avoid the payment of due non-construction charges. It is noteworthy that it is for the allottee or transferee to approach the Trust and seek possession and it is not the liability or responsibility of Trust to trace out the people and give possession to them. When any allottee does not approach the Improvement Trust to take possession the said person cannot blame the Jalandhar Improvement Trust for his 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. However, OP 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 Commission 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 complainant is barred by his own act, conduct, delay and laches and negligence from filing the present complaint case 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 has not approached the Court with clean hands and as such is not entitled to any relief from this Court. The complainant has got no cause of action to file the present case against the OP. The OP is a statutory body duty bound under the Punjab Town Improvement Act 1922 (hereinafter called ‘Act’) to seek the compliance of the statutory provisions and rules as per law and as per the Act and it cannot be restrained from seeking the compliance of other statutory conditions pertaining to the allotments and charging of prices thereof regarding various plots/ flats in its development schemes. The allotments made by the Opposite Party are subject to the provisions of the brochure, allotment letter and the Act, rules and other relevant Government instructions and the allottees/Complainant are bound by the same. On merits, the factum with regard to allotment of the plot No.166-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 arguments from 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.                The allotment of the plot is not disputed rather it is admitted fact. Now the first point to be decided is as to whether the complaint is time barred or not. As per the contention of the OP, the allotment was made on 23.12.2011, but the complainant has failed to take possession or even did not file any application for 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 have been proved as Ex.C13 to Ex.C22 and Ex.C-27 to Ex.C-30 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. Perusal of reply to the RTI dated 22.09.2020 Ex.C26 shows that it was noted that the work of water and sewerage supply was under process. So, it cannot be said that the present complaint is time barred as the complaint was filed on 14.07.2022 which is very much within time. 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.

7.                With regard to entering into sale agreement with the OP after a period of 8 years is concerned, 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 they were to take the possession within 30 days from the allotment, but this contention is not tenable. If the complainant failed to take the possession within 30 days from the allotment and did not execute the agreement within time, then it is the duty of the OP to send a notice to the complainant to execute the agreement and to take the possession, if the complainant does not turn up they can cancel the allotment, but the OP failed to send any notice nor the allotment was cancelled. Even during the pendency of this complaint, the OP has not brought on the file any cogent and convincing evidence except one affidavit of Rajesh, Executive Officer of JIT, whereby the OP can establish that they were ready for handing over the possession of the plot and the same is fit for delivery of possession to the complainant. 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.

8.                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.

9.                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     

26.07.2023         Member                          Member             President