BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.351 of 2020

      Date of Instt. 12.10.2020

      Date of Decision: 17.10.2023

Neena Trikha aged 40 years w/o Sh. Lakhbir Trikha R/o H. No.B-1, Municipal Colony, Bathinda, Punjab.

..........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 is the daughter of the original allottee, who 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, bought a plot also promoted by various nationalized banks. The original allottee who is a senior citizen subsequently sold and got transfer deed executed in respect of the said allotment in his daughter's name, who in the hope of having her own property as neither she nor her husband owns any -Presidential property paid for after her which she paid for after her husband Sh. Lakhbir Trikha took personal loan from banks to the tune of Rs.10,00,000/- at the rate of 15.02% from HDFC BANK and at the rate 10.65% from OBC/PNB BANK, in the year 2018. Since the original allottee due to age factor no more required the said plot and was unable to fight for the possession or carry out construction subsequently and who had invested hard earned income coming as pension, 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 till date. Initially the allotment was in the name of Sh. Vijay Kumar Sharma S/o Chanan Ram r/o Chanan Ram, House no.285, Ward no.4, Ghas Mandi, Dasuya and subsequently transferred into the name of the complainant vide JIT letter no.2784 dated 26/11/2018, same is Ex C-4. Original allottee submitted application no.077700, on prescribed form to OP for plot measuring 100 Sq.ft along with 10% earnest money of Rs.1,70,000/- along with all the requisite documents completed and complied with all the requirements. The complainant had applied for the plot in the year 2011 after making the said payment. The plot No.166 C was allotted under Vikas Scheme 94.97 Acre (Surya Enclave Extension), Jalandhar, as per allotment letter bearing no.JIT/4579 dated 02-04- 2012, in lucky draw held on dated 04/11/2011 at the rate of Rs.17,000/- per sq. ft totaling to Rs.17,00,000/- under the pensioner category, approved by resolution no.335 dated 08/11/2011 further approved by government vide memo no.8/31/11(9)-SS2/3213 dated 07/12/2011. 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 2 ½ years and the possession of the Plot 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, which the OP deliberately delayed despite full payment for reasons best known to the OP. The complainant, the subsequent allottee, through its original owner 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 prospective, to augment the sales of the said plots to make money and profits by the OP. The OP has been paid the whole purchase price of plot in the sum of Rs.17,00,000/- as per the allotment letter dated 02-04-2012 along with interest amount as and when due and penalty amount which in total amounted to Rs.17.90,200/- and Copies of payments receipts for Rs. 3,23,950/- dated 19/04/2012, dated 01/10/2012 for Rs.3,18,750/-, dated 26/03/2013 for Rs.3,06,000/-, dated 27/09/2013 for Rs.2,93,250/- dated 31/03/2014 for Rs.2,80,500/-, dated 19/09/2014 for Rs.2,67,750/-. The total Amount paid was Rs.17,90,200/- to OP. After the OP had been paid the amount by installments as stated supra, it was found that opposite party had deceived the original allottee and then the complainant, whose husband had to take loan from the banks to the tune of Rs.10,00,000/- to make the payments to the original allottee and the OP for transfer of the allotted plot. However, the OP has neither developed the site nor offered possession even after lapse of almost 9 years. 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. There are no demarcations made by the department and plots cannot be identified only a representative of the opposite party verbally showed demarcation. 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 OP has admitted in recent newspapers that they are starting the development work, which is a meager statement without the actual work on site till date thereby therefore confirming the situation of the area as being claimed by the complainant. 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. There is a high tension wire running in the near vicinity. Even after protracted follow up and lapse of 9 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 of till date tantamount to deceptive and unfair trade practice deficiency in rendering service and deceiving the complainant. The 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 2019 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 OPs be directed to deliver actual and physical possession of the plot bearing no.166-C under the Vikas Scheme 94.97sq.yd. at Surya Enclave Extension allotted to the complainant vide allotment letter dated 02-04-2012 and subsequent letter dated 26/11/2018 under the Vikas Scheme 94.97 sq. yd. at Surya Enclave Extension, along with interest amount i.e Rs.3,13,111/- paid as interest to the bank, along with all the facilities and development as has been advertised and agreed upon between the complainant and the OP with interest at the rate of 18 % on the full amount deposited till the date of entering of agreement to sell and subsequent stipulated date for delivery of possession till the actual offer and delivery of physical possession of the said plot to the complainant or in the alternative to return/refund Rs.17,90,200/-paid/deposited by the complainant alongwith interest amount paid to the bank amounting to Rs.3,13,911/-total amounting to Rs.21,04,111/- paid/deposited by the complainant as mentioned herein above 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.15,000/- as litigation expenses.

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 complainant is not a consumer qua the respondent JIT as such there is no question of any deficiency in service towards her. The complainant is gratuitous transferee of the plot in question and she has paid nothing towards any service or allotment. The Plot was allotted to Sh. Vijay Kumar Sharma in the Pensioner Category and he never raised any finger upon the services of the JIT nor applied for possession or any objection throughout and thereafter he made a gratuitous transfer in his daughter's name i.e. complainant. The present complaint is not filed in the capacity of representative or legal heir or transferee for price rather individually and not even signed or filed by original allottee and thus the facts stated herein by the complainant are neither legal nor valid nor convey any cause of action in her favour. The present complaint deserves to be dismissed on this score alone. 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-C of the Development Scheme 94.97 Acre known as Surya Enclave Extension was originally alloted to Sh. Vijay Kumar Sharma under the Pensioner Category vide allotment letter no.JIT/4579 dated 02.04.2012. As per the terms and conditions of the allotment letter the allottee was to enter into sale agreement within 30 days and deposit 1/4" 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 entered into sale agreement regarding the plot in question vide sale agreement dated 27.09.2013. As per the terms and conditions of the sale agreement the allottee was to raise construction on the aforesaid plot within 36 months from the date of allotment. However, as per the record the said allottee never approached the Jalandhar Improvement Trust to take possession as such it is to be considered that he had the possession of the plot especially after entering into sale agreement of the said plot. Thereafter the said allottee applied for transfer of the plot in question in the name of his daughter Smt. Neena Trikha on account of gratuitous family transfer. The affidavit from Seller and Affidavit from Purchaser were submitted to the Jalandhar Improvement Trust whereby the complainant agreed to abide by all the Rules/Instructions/Terms and Conditions etc. of allotment and undertook to raise construction on the plot within stipulated period as per sanctioned map. Thereafter the transfer was allowed and Letter No.JIT/2784 dated 26.11.2018 was issued to the complainant. But the complainant neither approached the OP to take possession nor has the complainant raised construction over the said plot till date. However, as the complainant became liable for payment of non construction charges and so as to avoid her liability of payment of extension fee/non construction charges, on account of not raising construction at site, now suddenly the complainant has awaken from her deep slumber and given an application to seek possession from Jalandhar 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 Jalandhar Improvement Trust and seek possession and it is not the liability or responsibility of department/Jalandhar Improvement Trust to trace out the people and give possession to them. When any allottee/transferee does not approach the department/Jalandhar Improvement Trust to take possession the said person cannot blame the Jalandhar Improvement Trust for their own defaults. As per the allotment terms and conditions itself allotee/complainant never approached the opposite party for taking possession, the complainant is a transferee she took the plot on transfer from the original allottee and was well aware of the plot details, location, scheme plan etc and all facts and circumstances before purchase and also under took as stated above to raise construction within time and it cannot be imagined even that someone will take on transfer a plot without even seeing the same or the surroundings/facilitates etc. and also undertake to raise construction without seeing the same. Thus, it is quite evident that complainant already has the possession of the said plot. 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 District Forum 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 present complaint is false and frivolous even to the knowledge of the complainant and is not maintainable against the opposite party. 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. 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. It is further averred that the OP is a statutory body duty bound under the 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 deposit of due amounts and compliance of other statutory conditions pertaining to the allotments in its development schemes. The allotments are subject to the provisions of the allotment letter terms and conditions, clauses of sale agreement and the Act, rules and other relevant Government instructions the allottees are also bound by the same. The complainant/allottee/transferee are bound not only by the terms and conditions but also by the affidavits and undertakings furnished by them. As such, the present complaint is futile and infructuous and thus liable to be dismissed. On Merits, the factum with regard to allotment of the plot and its transfer in the name of the complainant is admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted 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 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.166-C of the development scheme 94.97 acre known as Surya Enclave Extension was originally allotted to Sh. Vijay Kumar Sharma, vide allotment letter dated 02.04.2012, which has been proved as Ex.C-5/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-7 to Ex.C-12. Thereafter, the said plot was transferred into the name of the complainant, vide letter No.2784 dated 26.11.2018, which is evident from Ex.C-4 and Ex.OP3 to Ex.OP6. 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 9 years. Photographs of the area and newspaper cuttings, which highlighted the conditions and progress in the area has been proved on record as Ex.C13 to Ex.C19.

7.                The contention of the OP is that the complainant is not a consumer qua the OP/JIT. The plot was allotted to Sh. Vijay Kumar Sharma and he never raised any finger upon the services of the JIT nor applied for possession or any objection throughout and thereafter, he made a gratuitous transfer in his daughter’s name i.e. complainant, 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-13 to Ex.C19. These news publications show that the facilities and development in the Surya Enclave Extension is incomplete, meaning thereby there is no development at all. The OP produced on record the copy of sale agreement Ex.O-2, 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.  

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/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. The agreement to sell was executed, but even after the execution of agreement, the OP has not complied with the conditions of the allotment letter. 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