BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.445 of 2020
Date of Instt. 10.12.2020
Date of Decision: 14.05.2024
Kamlesh Kumari, aged 70 years, wife of Late Shri Rishi Raj, Resident of 1130, Sant Nagar, Ladowali Road, 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 applied for allotment of 100 sq. yards plot in 94.97 Acre development scheme of Jalandhar Improment Trust, Jalandhar known as Surya Enclave Extension by making a payment of application money amounting to Rs.1,70,000/-, which was just 10% of the total price of the said plot of 100 sq. yards. Consequently, the complainant was issued allotment letter no.JIT/862 dated 06-06-2016 and a Plot no.151-C measuring 100 sq. yards at a price of 17,000/- per sq. yard totaling Rs.17,00,000/- was allotted to the complainant on his application for allotment of plot in General Category under the above said development scheme of OP. The complainant was charged 10% extra of the total price of Rs.17,00,000/- as an additional cost on account of fact that a corner plot was allotted to the complainant. As such, as per the details mentioned in clause no.16 of the allotment letter, the complainant was required to pay, a total sum of Rs.19,83,200/- out of which an amount of Rs.1,70,000/- was already as application money and as such, the remaining amount payable was Rs.18,13,200/-. The complainant was allowed to pay the said amount in installments together with interest as detailed in clause no.17 of the said allotment letter. The complainant had deposited 25% amount plus two subsequent installment alongwith interest, as such, the total payment of Rs.12,67,925/- was made against the total price of plot for Rs.19,83,200/- The subsequent installment i.e. 3rd installment was due in month of December, 2017 and when on 06.12.2017, the complainant visited the office to pay the 3rd installment, she was shocked to know that the plot No.151-C, which was allotted the complainant, had also been allotted to another person, who had already deposited all the installments, as such, on the same day, instead of making payment of 3rd installment, the complainant made an application in writing to get clarification with regard to this double allotment of a single plot. The said application dated 06-12-2017 for seeking clarification was received by the opposite party but no response was received from the OP. On noticing, no response to her application dated 06-12-2017, the complainant again wrote another application as on dated 17-01-2018, which was also duly received by the OP, but again there was no reply or response to the complainant. Thereafter, the complainant send her another letter dated 13-08-2018 to the OP through registered post, but again there was no reply from the side of the OP and further, there was also no response to another letter of the complainant sent through registered post on dated 28-08-2018. And subsequently, similar was the fate of the subsequent letter of the complainant, which was personally served by the complainant upon the OP as on dated 21-11-2018. Thereafter, since the complainant was anxious as well as in deep anguish as to how a single plot could be allotted to two different persons by a Govt. Department but since it had happened so with the complainant and the complainant wanted to know the solution as a heavy amount of the complainant was extorted from the complainant on the pretext of allotment of plot which had already been allotted to another person. Such a fraudulent act and conduct is a punishable offence under different provisions of the Indian Penal Code. However, the complainant did not want to initiate any such legal action of prosecution of the concerned officers of the OP due to her health ailments due to her old age and preferred to avoid her further humiliation and harassment in this matter. Since, the OP kept mum over matter, as such, the complainant preferred to send her representation to the parent body of the OP i.e. Local Body Department at Chandigarh. The representation of the complainant received by the Local Body Department was duly acknowledged, however, no fruitful result came out on account of numerous complaints and representation duly served upon the OP as well as upon the Local Body Department at Chandigarh. The complainant wrote numerous requests and representations to the OP and its local body department as well as many a times personally visited in the office of OP as the complainant wanted to know the exact status of plot allotted to her so that she could pay the subsequent installments and could get possession of the plot. But inspite of such sincere and earnest efforts of the complainant to get the matter solved, the OP did not pay any heed to verbal as well as written requests and representations to the OP. In an online grievance sent vide registration no.PBLOC/E/2018/00231, the Local Body Department vide its letter dated 31-05-2019, confirmed the wrong allotment of plot no. 151-C measuring 100 sq. yards and started saying for offering of alternative plot, however, the same was also not offered to the complainant even after of a couple of months. The OP has fraudulently allotted a single plot to the complainant as well as to another person whose name has transpired as Smt. Ashok Kumari wife of Shri Manu Ohri, resident of Village Piplanwala, Tehsil and District Hoshiarpur. And the above one and same plot was found allotted to the above said Smt. Ashok Kumar, vide allotment letter no.JIT/2729/3154 dated 23-12-2011/18-01-2012. The complainant vide her letter dated 27-01-2020 wrote to the OP for making refund of the amount along interest and expressed her desire that she would not prefer to get alternative plot. Therefore, in pursuance of the said letter dated 27.01.2020, the complainant many at times, visited the office of the OP and informed the concerned officers that she could get an alternative plot and could pay the remaining amount only if there could be any development work over the said site but since there was no development and in the absence of any development over the site, the complainant could not get possession of his plot, as such, she decided to get the refund of the deposited amount and asked the concerned officers for the same especially when all most the all other allottees were still waiting to get the possession of their respective allotted plot. As a matter of fact, without carrying out all the promised and proposed developments in the said area, the possession of any plot could not be legally offered to the allottees by the OP for the reason that the opposite party has also not obtained completion certificate from the concerned Government Authorities till date. From dated 22 March, 2020 onwards there was complete lockdown for a couple of months due to Corona Virus Covid-19 and the senior citizens like complainant were advised not to go out. However, now before filing the present complaint, the complainant recently visited at the site on dated 30.10.2020 and the complainant was surprised to know that the site of the scheme area was lying in an absolutely ignored condition and there was no touch of development at all at the site in question rather it was being used for throwing garbage and pits were full of slush water. The photographs of the site taken at moment of time are being attached herewith, which are sufficient to show that 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. As such, upon noticing no chances of immediate development of the scheme area, the complainant again reconfirmed for not to go for another alternative plot and to deposit any other amount with the opposite party and preferred to get the refund of the already deposited amount. On the one hand, the OP kept on receiving the installments towards the price of plot on the pretext of providing plot in 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 to its allotees as well as also failed to carry out any development in the said colony of Surya Enclave Extension, Jalandhar. And furthermore, in the present case of the complainant, the plot allotted to her had also been allotted to some other person, hence in this way, the OP collected amount of the single plot from the two different persons. The complainant came to know that most of the allottee of the present scheme as well as for the adjoining development schemes were trying very hard to get the possession of their respective allotted plot but they could not get the delivery of possession of their respective plots even after making the entire payments of the plot to the OP. Furthermore, the development activities were not started meaning thereby the OP misappropriated the public money for a purpose other than the development of Surya Enclave Extension. As such, the complainant was in a great fix and the complainant thought that she had also fallen into a trap 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. The photocopy of the news paper cutting with regard to the above said facts/news items highlighted in "The Tribune" daily English news paper dated 14-07-2020. The complainant got fed up from the act and conduct of the OP which amounts to deficient in service and unfair trade practice as the complainant has been put to gross mental tension, mental torture and lots of physical harassment by the OPs and its officials 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 of the total amount of Rs.12,67,925/- deposited by the complainant with the OP alongwith interest @ 18% rate (i.e. the rate the interest which has been charged on installments deposited by the complainant) till the date of its realization may be awarded to the complainant, and to pay Rs.5,00,000/- on account of compensation for causing mental tension, harassment and mental agony to the Complainant and to pay Rs. 55,000/- as cost of litigation.
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.151-C of the Development Scheme 94.97 Acre known as Surya Enclave Extension was originally allotted to one Smt. Ashok Kumari. But the said allottee after entering into sale agreement failed to turn up or approach the opposite party for taking possession as per the terms and conditions of the sale agreement. Later on she even took the No Dues Certificate but still failed to take any steps for taking possession or raising construction and rather she abandoned the allotment. Consequently, inadvertently the said plot got put up in draw of lots. The said plot was then allotted to the complainant vide allotment letter no.JIT/ 862 dated 06.06.2016. As per the terms and conditions of the allotment letter the allottee was to enter into sale agreement within 30 days and deposit 1/4th sale price and it was clearly offered that the allottee can take possession of the plot after entering into sale agreement but the allottee failed to enter into the sale agreement within 30 days. The said allottee/complainant failed to enter into sale agreement and became defaulter in terms of the allotment letter. 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. The allottee could take possession after entering into sale agreement. The plot was sold on as is where is basis and the allottee has to accept the dimensions/ area as per site. But the complainant did not approach the Jalandhar Improvement Trust to enter into sale agreement or to take possession from JIT. Later on, in view of the public interest and convenience as per Govt. orders the Railway Station of Jalandhar is being modernized by the authorities. For easing the traffic and public convenience the Department has planned a second approach and entry gate of Railways from the 94.97 Acre Development Scheme and for the purpose of the aforesaid entry a 80 feet approach Road is to be constructed and on account of the same the whole block of plots is to be shifted in which plot no.151-C is situated and as such under Section 43 of the Act the case has been sent to the Government. The Complainant firstly herself defaulted and delayed the matter and after lapse of so much time suddenly awoke from her deep slumber and got issued entirely misconceived and misdirected Legal Notice. The claim of the complainant is time barred and she is not entitled to any refund. 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 (hereinafter called "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 Improvement Trust. The OP 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. 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.151-C 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 of the OP 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.151-C of the development scheme 94.97 acre known as Surya Enclave Extension was allotted to the complainant, vide allotment letter dated 06.06.2016, which has been proved as Ex.C-2/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 and draft have been proved as Ex.C-3 and Ex.C-6. The contention of the complainant is that when on 06.12.2017, the complainant visited the office to pay the third installment, she was shocked to know that the said plot allotted to her, was also allotted to another person, who had already deposited all the installments and agreement to sell was also executed even NOC was received by Ashok Kumar as per written statement. The complainant wrote an application dated 06.12.2017 Ex.C-7 seeking clarification about allotment of the plot, but no reply was given by the OP and then again the complainant wrote letters dated 17.01.2018, 13.08.2018, 28.08.2018 and 21.11.2018, but no reply was given by the OP despite receiving the letter. Copies of the letters and receipts are Ex.C-8 to Ex.C-16. The complainant sent her representation to the parent body of the OP i.e. Local Body Department at Chandigarh and the Local Body Department vide its letter dated 31.05.2019 confirmed about the wrong allotment of the plot No.151-C. She was offered alternative plot, which is evident from Ex.C-17 to Ex.C-19. Then the OP allotted a single plot to the complainant and the Plot No.151-C was allotted to Ashok Kumari, vide allotment letter dated 23.12.2011/18.01.2012 as Ex.C-20. The complainant wrote a letter to the OP for making refund of the amount alongwith interest vide Ex.C21 to Ex.C24 and visited number of times, but all in vain. Even there was no development at the site with all the amenities like roads, water supply and electricity supply etc. Photographs of the area and newspaper cuttings, which highlighted the conditions and progress in the area has been proved on record as Ex.C-25 to Ex.C-32.
7. The OP on the other hand has admitted in the written statement about the wrong allotment of the plot to the complainant. It has also been admitted that Shri Ashok Kumar took NOC but alleged that it was the complainant who did not bring this fact to the notice of the OP. It has been alleged that the said allottee/complainant failed to enter into sale agreement and became defaulter in terms of the allotment letter, but this contention is not tenable as the Local Body Department vide its letter dated 31.05.2019 confirmed the wrong allotment of the plot No.151-C and offered alternative plot, as is proved from Ex.C-17 to Ex.C-19. Even otherwise, there is no development at the site as per the news publications and photographs proved on record by the complainant, which are from different newspapers and these are from 2020 onwards. The same have been proved as Ex.C-25 to Ex.C-32. 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 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 even the alternative plot was 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. If the complainant did not comply with the provisions of sale agreement or did not take possession, then the JIT was within its rights to cancel the allotment and forfeit all deposited amount 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 for execution of the sale agreement, the OPs can cancel the allotment, but the OP failed to send any notice nor the allotment was ever cancelled.
9. 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. Thus, the complainant has proved the deficiency in service by OP, once they wrongly allotted the plot to the complainant as previous allotted plot was allotted to her again. This is glaring mistake committed by OP. Instead of feeling sorry for their act, the OPs are alleging that it is the fault of the complainant as she did not bring this fact to their notice. Thus, deficiency in service is proved. 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 Dr. Harveen Bhardwaj
14.05.2024 Member President
