BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.157 of 2021

      Date of Instt. 15.04.2021

      Date of Decision: 29.11.2023

Meera Sethi aged 35 years W/o Sh. Aman Sethi, R/o 762/2, Prithvi Nagar, Kishanpura, Jalandhar Mob:-94178-23124.

..........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:       Sh. Darshan Singh Ahuja, Auth. Rep. for 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 is a law abiding citizen, 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.082863 on prescribed form to OP for plot measuring 200Sq.Yds along with 10% earnest money of Rs.3,40,000/- along with all the requisite documents fully completed and complied with all the requirements. The complainant was allotted plot No.233-D (Corner Plot), Vikas Scheme 94.97 Acre (Surya Enclave Extension), Jalandhar, measuring 200Sq.Yds in lucky draw dated 04/11/2011 at Red Cross Bhawan, Jalandhar further confirmed by resolution no.335 dated 08/11/2011 by the trust. The information regarding the allotment of plot was given by OP vide its letter no. JIT/3406 dated 13/02/2012, to the complainant. The site was to be developed within in 2½ years i.e. (August 2014) from the date of allotment 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 said agreement of sale was executed between the complainant and the OP. The complainant has deposited all the requisite papers for the registration of the application with the necessary fee and other formalities 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.43,11,300/- along with interest as and when due to OP. After making the full payment to OP, the complainant approached OP on 08/08/2014, for the physical possession of plot in writing which was duly acknowledged by OP. Till today, the OP has not offered/given possession to the complainant of allotted plot. After the complainant had paid the amount by installments, 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 nine years. Photographs of the area are on record from which the condition of hygiene and amenities is quite evident, newspaper cutting highlighting the condition of the area. There are no demarcations made by the department only verbal demarcations have been showed by one representative of OP 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. The condition further worsens during the rainy season as water clogging take place with the area being used as a dumping ground the area emanates unbearable stink. There is an illegal slaughter house being run on one of the plots despite other illegal occupations. 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 more than Nine 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. 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 1986 as amended up-to-date 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 OP be directed to return/refund Rs.43,11,300/-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 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.10,000/- as cost of proceedings of the complaint and Rs.5000/- 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 OP, in the present form under the law. It is further averred that the present complaint is time barred. The allotment was made 13.02.2012 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 said allottee entered into sale agreement regarding the plot in question vide sale agreement dated 13.02.2015 i.e. at a belated stage after 3 years from allotment in contravention of provisions of allotment letter. 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 pertinent to mention 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 or payment/ part payment of the sale price 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 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.233-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 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 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 both the parties very minutely.

6.                It is admitted and proved fact that the plot No.233-D of the development scheme 94.97 acre known as Surya Enclave Extension was allotted to the complainant, vide allotment letter dated 13.02.2012, which has been proved as Ex.C-1/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-3 to Ex.C-8. 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. The OP should not have launched the scheme as the OP was not the owner. Litigation was pending. The Hon’ble High Court had granted stay in favour of the petitioner/actual owners of the plot in the writ petition. The complainant wrote a letter to the OP Ex.C-9, vide which she sought the physical possession of the plot, but the OP failed to do so. Photographs of the area and newspaper cuttings, which highlighted the conditions and progress in the area has been proved on record as Ex.C-10 to Ex.C-18.

7.                The contention of the OP is that the present complaint is time barred. The allotment was made on 13.02.2012 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 herself 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-10 to Ex.C-18. 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 she 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 Hon’ble High Court had granted stay as the OP was not owner of the property. As per Ex.OP-3, the decision came in favour of OPs on 22.12.2015 and as per this letter, the development work was started at war level which was not completed till filing of the complaint. 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 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. 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     

29.11.2023         Member                          Member           President