BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.21  of 2021

      Date of Instt. 15.01.2021

      Date of Decision: 17.10.2023

Naitik Mahajan aged 38 years S/o Sh. Lal Chand Mahajan R/o H. NO.Naitik Niwas, Ward No.5, Gollu Mohalla Nurpur, Kangra, Himachal Pradesh at present residing at H. No.713, Ground Floor, Sector 5, Vasundra Gaziabad-201012.

..........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 dream home with ultra-modern facilities and amenities with high quality and standard UNDER 94.97 Acre Development Scheme in Surya Enclave Extension Jalandhar, with a hope to have a dream house of his own in Jalandhar since the wife and children are based in Jalandhar, applied for a plot, the project was also promoted by various nationalized banks. The Complainant paid for plot with his hard earned money. The complainant submitted application No.091973, on prescribed form to OP for plot measuring 200 Sq. yards along with 10% earnest money of Rs.3,40,000/- vide Demand Draft bearing No.505679 dated 16/04/2016 drawn on erstwhile Corporation bank, Gill Road, Ludhiana, for which Complainant paid interest from 01/04/2016 to 11/01/2021 for a total amount of Rs.8,97,164/-along with all the requisite documents fully completed and complied with all the requirements. The complainant had applied for the plot in the year 2016 after making the said payment. The complainant was allotted plot No.370-D, under Vikas Scheme 94.97 Acre (Surya Enclave Extension), Jalandhar, as per allotment letter bearing no.JIT/828 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 vide memo no.8/31/11(9)-SS2/3213 dated 07/12/2011. To the extent that after period of 6 months if the allottee failed to pay the installment the plot shall be confiscated by the OP. 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. 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, 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 OP 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.34,78,000/- along with Rs.8,97,164/- as interest till 11.01.2021 paid to the bank and copies of payments receipts are on record for Rs.3,137,500/- dated 29/06/2016 in lump sum after availing a staff housing loan from erstwhile Corporation bank, Guru Teg Bahadur Nagar, Jalandhar, to the tune of Rs.57,05,000/- including both for purchase and construction on the said plot, at the rate of interest 8% with initial disbursement of Rs.31,37,500/- for the purpose of purchase of the said plot, Ex.C-6 dated 29/06/2016 for Rs. 500/- The total Amount paid was Rs.34,78,000/- plus Rs.8,97,164/- total amounting to Rs.43,75,164/- Statement of accounts of erstwhile Corporation bank, Guru Teg Bahadur Nagar, Jalandhar, is on record. After the complainant had paid the full amount 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 opposite party has developed the site nor offered possession even after lapse of almost 4 years. The complainant had also written letter in this regard duly received and endorsed by the opposite party on 29/10/2019. The complainant was shocked to see the terrible condition on the spot. Photographs of the area are on record 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 opposite party 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 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. The bank from which the complainant had taken loan in order to buy the plot are now threatening the complainant of charging commercial rate of interest to the tune of 18% due to non construction. The complainant is paying interest on full sanctioned loan amount till date. Even after protracted follow up and lapse of 4 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 by not giving the possession the plot as per the agreed terms and as such, the present complaint filed before this Commission.

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 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 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.370-D of the Development Scheme 94.97 Acre known as Surya Enclave Extension was allotted to the complainant vide allotment letter no. JIT/828 dated 06.06.2016 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. 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 possession after entering in to sale agreement. As per the terms and conditions of the agreement the allottee was to raise construction on the aforesaid plot within 36 months. Thereafter the complainant did not seek possession as per allotment conditions. The NDC was prepared and issued to the complainant vide Letter No.JIT/1317 dated 29.06.2016. But still the complainant did not seek possession of the plot and rather failed to receive the same or to take possession at site. The complainant has rather instead of taking possession and complying with the allotment terms and conditions sat silent for all these years and has now suddenly started raising frivolous pleas, however, she 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 she 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 liability of payment of extension feel non construction charges, on account of not raising construction at site, she deliberately neglected to take possession. Thereafter suddenly the complainant started making false and frivolous imputations against although she 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/JIT to trace out the people and give possession to them. When any allottee does not approach the department/Improvement Trust to take possession the said person cannot blame the Improvement Trust for their own defaults. As per the allotment terms and conditions itself allotee/complainant never approached the OP 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 opposite party 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. 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 Honb'le District Consumer Disputes Redressal Forum may fix any time or date and without any delay or ado 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 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/allotees 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. The allotment was made in 2012 and the present complaint filed in 2020 is barred by limitation. 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.370-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.370-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/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-1, 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 offered even after lapse of almost 4 years. Photographs of the area and newspaper cuttings, which highlighted the conditions and progress in the area has been proved on record as Ex.C9 to Ex.C12.

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-9 to Ex.C12. 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.O-2 the OP sought permission to mortgage plot in the development scheme for raising loan for the purpose of making payment to JIT, 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