BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.256 of 2021

      Date of Instt. 28.07.2021

      Date of Decision: 17.10.2023

Mohan Lal aged 60 years S/o Sh. Faqir Chand, R/o H. No.127, Hardeep Nagar, Lamba Pind Chowk, Jalandhar.

..........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 to have a dream house of his own, applied for a plot, the project was also promoted by various nationalized banks. The complainant submitted application No. 091246, on prescribed form to OP for plot measuring 200Sq. yards along with 10% earnest money of Rs.3,40,000/- vide Demand Draft bearing No.750636 dated 21/04/2016 drawn on Punjab National Bank, Civil Lines, Jalandhar, Ex C-2. It is pertinent to mention here that the complainant had applied for the plot in the year 2016 after making the said payment. The complainant was allotted plot No.376-D, under Vikas Scheme 94.97 Acre (Surya Enclave Extension), Jalandhar, as per allotment letter bearing no JIT/821 dated 06-06-2016, in lucky draw held on dated 19/05/2016 at the rate of Rs.17,000/- per sq. ft totaling to Rs.34,00,000/- approved by resolution no.298 dated 19/05/2016 further approved by government. 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 for which the payment was duly made by the complainant well within time. However due to reasons best known to the opposite party has not got executed the said agreement till date. 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 well in advance. The only formality which was to be completed was to give the possession of allotted plot, after execution of the agreement to sell, 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 to opposite party as per the allotment letter dated 06-06-2016 along with interest as and when due and penalty and other calculations of opposite party, which in total amounted to Rs.34,77,500/- alongwith Rs.11,29,455.07/- as interest till 09/04/2021 paid to the LIC Housing Finance Ltd., the total unpaid loan amount alongwith interest was deducted at the time of retirement of the complainant from his retirement benefits by the LIC Housing Finance Ltd. The total Amount paid was Rs. 34,77,500/- plus Rs.11,29,455.07/- total amounting to Rs.46,09,945.07/-. After the complainant had paid the full amount 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 opposite party has developed the site nor offered possession even after lapse of almost 5 years. The complainant had also written letters in this regard duly received and endorsed by the OP on 27/11/2020 and 08/06/2021. The complainant was shocked to see the terrible condition on the spot. Photographs of the area 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 as alleged to have been laid down by the OP have not been connected to the main line thus even if present, 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 leading to elaborate weed growth in the area. The areas around are being used as a dumping ground and emanates unbearable stink. There is no possibility of carrying out construction in the said area, a total hazard medically also. The opposite party 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 5 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 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 Rs.34,77,500/- deposited by the complainant alongwith an amount of Rs.11,29,455.07/- paid as interest plus amount paid as file processing charges to the tune of Rs.2990/- to the LIC Housing Finance Ltd. from which the complainant availed the loan facility total amounting to Rs.46,09,945/- alongwith interest @ 18% per annum from the date of deposit up to the date of the 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.25,000/- as litigation expenses and Rs.15,000/- 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 on 06.06.2016 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 enter into sale agreement and not got entitled to take possession and now raised frivolous objections and 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.376-D of the Development Scheme 94.97 Acre known as Surya Enclave Extension was allotted to the complainant vide allotment letter no.JIT/821 dated 06.06.2016 and the complainant received and acknowledged the same. As per the terms and conditions of the allotment the allottee could take possession after entering in to sale agreement. But the allottee failed to do so. 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 whereas the Jalandhar Improvement Trust never refused possession rather had been performing its due part throughout. The sale agreement was not executed and the complainant utterly defaulted to take demarcation/possession. The OP is not under any contractual obligation to write letters or trace out complainant to give possession but still the to remove any doubts the letter no.JIT/1569 dated 02.09.2021 was issued to the complainant to take possession at site. But the complainant failed to reply or comply with the same. Thus, clearly 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. 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. As per clause 13 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. 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 lack of development facilities and made other ill-founded baseless excuses. All the more so it is noteworthy that 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 Improvement Trust to trace out the people and give possession to them. When any allottee/transferee does not approach the Improvement Trust to take possession the said person cannot blame the opposite party for 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. 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. Rather videLetter No.JIT/1569 dated 02.09.2021 the complainant was called upon to take possession of the Plot. Even now Commission may fix any time or date and without any delay or ado upon the execution of the sale agreement 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 that in case of the successful allotees 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. 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. On merits, the factum with regard to allotment of the plot No.376-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 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.376-D 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-3/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 and draft have been proved as Ex.C-2, Ex.C-5 to Ex.C-7. 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 5 years. Photographs of the area and newspaper cuttings, which highlighted the conditions and progress in the area has been proved on record as Ex.C11 to Ex.C26.

7.                The contention of the OP is that the present complaint is time barred. The allotment was made on 06.06.2016 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-11 to Ex.C26. 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. Vide Ex.OP-2 the OP has informed the complainant that all the basic facilities have been provided in this scheme. So, attend this office on any working day and get possession of the said plot, but 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. 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