BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.319 of 2022

      Date of Instt. 30.08.2022

      Date of Decision: 14.05.2024

Rakesh Chetal aged about 53 years (Aadhar Card No.3533-9477-6820) S/o Sh. Janakraj Cehtal, R/o 113/4, Arjun Niwas, CMM Jabalpur (MP), PIN-482001.

..........Complainant

Versus

Jalandhar Improvement Trust, Model Town Road, Jalandhar City through its Executive Officer. Email ID:itjalandhar@gmail.com.

….….. Opposite Party

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Sh. Jaswant Singh Dhillon       (Member)

Present:       Smt. Harleen Kaur, Adv. & Miss Anchita, Adv. Counsels                 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 had earlier filed an application before the Ld. Real Estate Regulatory Authority, Punjab, Chandigarh, but since this project of Jalandhar Improvement Trust is not RERA registered, subsequent to decision of the Hon'ble Apex Court ‘M/S Newtech Promoters and Developers Pvt. Ltd. Versus State of UP and Others etc’ implemented vide circular dated 06/12/2021 is Ex C-1, with respect to nature of cases to be filed before RERA, the present complaint had to be withdrawn with liberty to file a fresh before competent Forum, causing lot of harassment and loss of time and money to the complainant due to, OP not having registered the said project with RERA. The complainant had applied for purchase of the plot, vide application bearing no.077525, measuring 200 Sq.Yds. along with 10% earnest money of Rs.3,40,000/- through Axis Bank, Pathankot Branch, Pathankot payment receipt, along with all the requisite documents completed and complied with all the requirements. The complainant was allotted plot No.213-D, under the Vikas Scheme 94.97 Acre (Surya Enclave Extension), Jalandhar, as per allotment letter bearing no.JIT/4617 dated 02/04/2012, Ex C-4, in lucky draw held on dated 04/11/2011 at the rate of Rs.17,000/- per sq.yds. totaling to Rs.34,00,000/- approved by resolution no.335 dated 08/11/2011 further approved by government vide memo no.8/31/11(9)-1SS2/3213 dated 07/12/2011. The site was to be developed within in 2 ½ years 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 payment of Rs.950/- for the agreement of sale was duly made in the year 2012 vide receipt no.50097 dated 25/04/2012 by the complainants same is Ex C-5. However due to reasons best known to the OP, 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 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 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 in the sum of Rs.34,00,000/- to OP alongwith interest as per the allotment letter bearing no.JIT/4617 dated 02/04/2012. The total amount paid to OP is Rs.39,19,450/- including earnest money and subsequent to correspondence in the year 2014 for possession. To the utter shock and dismay of the complainant he came to know in the year 2014 subsequent to request letter dated 28/09/2014 for possession that the area/land on which the said project was carved out by the OP was under litigation before the Hon'ble Punjab and Haryana High Court, Chandigarh since in 2011. The said project was started by the OP even prior to taking of the actual possession of the total land under the said scheme. After the complainant had paid the amount by installments 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 even till date. Neither the OP has developed the site nor offered possession even after lapse of almost 10 years despite the fact that complainant personally has also made a written request for the same for which the OP refused to give any receiving. 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. Even though the OP is falsely claiming to have started the development work and alleged demarcations of plots on sites but the actual position is the opposite well supported by the photographs and various news articles. There are no demarcations made by the department 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, 120 ft. road is not connected to motorway through Damoria Bridge as advertised and promised. The manhole sewerage of Guru Gobind Singh Avenue is blocked because of which the sewerage effluents are filling up the plots in the D block of Surya Enclave Extension. No electricity connection is available till date. The condition further worsens during the rainy season as water logging take place and with the area being used as a dumping ground, the area emanates unbearable stink, there is an extensive growth of weeds. There are illegal occupations even on the main access road which passes through C block till date. 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 promise for the advertised plots. It is also pertinent to mention here that the said scheme was to be developed as well equipped with ultra-modern facilities and well developed surroundings but now it has come to the knowledge of the complainant that opposite party is moving the illegal colony of Kazi Mandi in the area adjacent 6.50 acre, which was reserved for multistory flats as advertised, thereby which in turn will also be effecting the locality supposed to be developed as ultra-modern and further diminishing the value of plots in the adjacent area of D-Block. The OP has not given any firm date of handing over of the possession of the plot. No specific date has been mentioned. As per settled principle of law under the Consumer Protection Act a confirmed date should have been given of handing over of the possession, at the time of taking bookings itself and the booking amount, which also amounts to unfair trade practice. Even after protracted follow up and lapse of more than 10 years from the date of allotment OP has been 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 2022 date tantamount to deceptive and unfair trade practice, deficiency in rendering service and deceiving the complainant 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 return/refund amount of Rs.39,19,450/- paid 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, OPs be directed to pay a compensation of Rs.5,00,000/- for causing mental tension, pain and agony to the complainant and Rs.25,000/- as litigation expenses.

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 time barred. The allotment was made on 02.04.2012 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 enter into sale agreement and not got entitled to take possession and now raised frivolous objections and the present complaint after more than 10 years from allotment 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.213D of the Development Scheme 94.97 Acre known as Surya Enclave Extension was allotted to the complainant, vide allotment letter no.JIT/4617 dated 02.04.2012 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. 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 the 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 refunded to allottee/transferee. 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 JIT. The JIT has never defaulted in performing any of its obligations under the allotment terms and conditions/rules etc. On merits, the factum with regard to allotment of the plot and payment to the same 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 counsel for the complainant very minutely.

6.                It is admitted and proved fact that plot No.213-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-4/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-5 and Ex.C-10. The contention of the complainant is that despite having complied with all the requirements and full payment made by the complainant, neither the OP had developed the site nor offered possession even after lapse of almost 10 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.C16 and Ex.C19.

7.                The contention of the OP is that the present complaint is time barred. The allotment was made on 02.04.2012 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 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 have been proved as Ex.C11 to Ex.C16 and Ex.C19. 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 complainant wrote letters Ex.C-17 and Ex.C-18 requesting for possession of the said plot to the OP, 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 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 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 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 execute 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 date of allotment. The OP could have sent notice to the complainant to execute agreement to sell and to take the possession, but the OP did not send any notice nor the allotment was ever cancelled. Therefore, this argument is not tenable.

9.                Ex.OP-2 shows that no development was made till 17.02.2016 i.e. the date of issuing letter as the Hon’ble Punjab & Haryana High Court had stayed the process of taking possession from land owner. In this letter, it has been admitted by the OPs that the construction work of roads, water supply and sewerage is being carried. But, 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. Ex.OP-3 is a letter vide which the site plan of the plot was sent to the complainant, but no copy of site plan has been filed nor it has been mentioned in Ex.OP-3 as to whether the site plan was ever approved or not. 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