BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.381 of 2020
Date of Instt. 30.10.2020
Date of Decision: 26.07.2023
Rakhi aged 41 years W/o Sh. Amandeep Banga R/o H. No.1176, Urban Estate, Phase-2, Jalandhar, 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 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 paid for plot with her hard earned money to make her dream of owning her dream home come true. The complainant submitted application No. 091789, on prescribed form to OP for plot measuring 200Sq. yards along with 10% earnest money of Rs.3,40,000/- through Banker's cheque, bearing No.143251 dated 07/05/2016 drawn on State Bank of Patiala, Urban Estate, Phase 2 branch, Jalandhar along with all the requisite documents completed and complied with all the requirements. 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.183-D, under Vikas Scheme 94.97 Acre (Surya Enclave Extension), Jalandhar, as per allotment letter bearing no.JIT/820 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. As per the said allotment letter in case of delayed payment the OP was entitled to receive interest at the rate of 11% in case of delay for one month, 12% in case of delay for two months, 13% for delay of three months, 14% for delay for four months, 15% for delay for five months and 16% for delay for six months. To the extent that after period of 6 months if the allottee failed to pay the installment the plot shall be confiscated by the opposite party. 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 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 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 in the sum of Rs.39,79,180/- to OP as per the allotment letter dated 06-06-2016. 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. Neither the OP has developed the site nor offered possession even after lapse of almost 4 years. The complainant was shocked to see the terrible condition on the spot. Photographs of the area are placed 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 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 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. Letter by SBP Bank, vide this letter loan application of the complainant was refused for the reason that the plot was not demarcated complaint could not available of loan facility and had manage full payment otherwise. 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. To the utter shock and dismay of the complainant, she came to know in the year 2016 that the area/land on which the said scene was curved out by the OP was under litigation before the Hon'ble Punjab and Haryana High Court, Chandigarh since 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. It is further pertinent to mention that Punjab National Bank, G.T. Road Branch, Jalandhar, has affixed a notice board under section 13 (4) of The Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (also known as the SARFAESI Act) and taken physical possession of part of the land falling under the said scheme as opposite party failed to return the loan amount to the said bank further showing the callous and arrogant attitude on the part of the opposite party towards the society at large. 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 (hereinafter in short 'the Act') on the part of OP. In letter dated 22/11/2016 bearing no.JIT/4357 OP has admitted that due to stay by Punjab and Haryana High Court, trust could not carry out the work of development and only after that the sale deed will be executed. The delay is tainted with malafide and arbitrariness and purpose behind the curtain is a deceitful, modus operandi on the part of OP amounting 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 OPs be directed to deliver actual and physical possession of the plot bearing no.183-D under the Vikas Scheme 94.97 sq. yd. at Surya Enclave Extension allotted to the complainant vide allotment letter dated 06-06-2016 under the Vikas Scheme 94.97 sq. yd. at Surya Enclave Extension, along with all the facilities, development and improvements as has been advertised and agreed upon between the complainant and the opposite party alongwith interest at the rate of 18% on the full amount deposited 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 along with the NOC or in the alternative to refund Rs.39,79,180/- paid by the complainant with interest @ 18% per annum from the date of deposit upto 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 cost of proceedings of the complaint 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 complaint is not maintainable against the answering OP in the present form under the law. 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 opposite party. The plot in question i.e. Plot No.183-D of the Development Scheme 94.97 Acre was allotted to the complainant vide allotment letter no.JIT/820 dated 06.06.2016. As per the terms and conditions of the allotment letter the allottee was to enter into sale agreement within 30 days and deposit 1/4th 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 comply with the allotment conditions as complainant failed to enter into the sale agreement within 30 days and thus the entitlement to seek possession did not arise. However before entering into sale agreement the complainant submitted letter to confirm that there is no litigation in the court of law and land is unencumbered etc as per her letter dated 13.10.2016. In response thereto Jalandhar Improvement Trust issued letter no.JIT/4070 dated 20.10.2016. Thereafter the complainant entered into sale agreement regarding the plot in question belatedly vide sale agreement after thirty days on 21.10.2016 after settling all her doubts and suspicions. As per the terms and conditions of the allotment the development facilities were to be provided in the 2 ½ years from the date 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 if he does not do so then 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. As per clause 15 allotment was clearly on 'as is where is basis'. The terms and conditions were very clear and it was incumbent upon the allottee to enter into sale agreement of the plot within 30 days and to deposit installments in time at his own responsibility. The allottee belatedly entered in to sale agreement with the JIT As per the allotment terms and conditions itself allotee/complainant never approached the opposite party for taking possession so there's no question or objection ever raised for the surroundings/facilitates etc is tenable. The demarcation was complete and respondent was in a position to handover the possession at site. But the complainant did not approach the JIT to take possession. The complainant has failed to put up any letter that after execution of sale agreement she sought possession or the same was declined to her by JIT. As such it was to be considered that she had the possession of the plot especially after entering into sale agreement of the said plot and seeking NDC from JIT. The complainant demanded NDC vide Letter dated 31.10.2018. Thus reports were taken and there was no litigation qua the said plot and the site was free and there was no construction as per reports. As such Site Plan was also prepared as per demarcation at site. 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 awakened from her deep slumber and again demanded NDC, vide her application dated 23.09.2020 just to pressurize the officials of Jalandhar Improvement Trust Whereas the demand of NDC firstly in 2018 and then in 2020 clearly shows that the complainant had the possession at site and filed the present case simply to avoid the payment of due non-construction charges. 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/Jalandhar Improvement Trust to trace out the people and give possession to them. When any allottee does not approach the Jalandhar Improvement Trust to take possession the said person cannot blame the Jalandhar Improvement Trust for their own defaults. The allotee/complainant never approached the opposite party 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 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 the basic facilities for development are complete as held out by the OP and the complainant is wrongly alleging the nonexistence 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 never refused same and even now this Forum may fix any time or date and without any delay opposite party is ready to deliver the possession of the plot 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 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 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 and negligence from filing present complaint and claiming the relief as prayed in the present complaint. 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 and the allottees are also bound by the same. The complainant/allottee/transferee are bound by the terms and conditions agreed 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 No.183-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 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.183-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 including the earnest money. The receipts have been proved as Ex.C-2, Ex.C-5 to Ex.C-13. 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 offered the possession 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.C-14 to Ex.C-18.
7. The contention of the OP is that as per the terms and conditions of the allotment letter, the allottee was to enter into sale agreement within 30 days and deposit 1/4th 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 comply with the allotment conditions as complainant failed to enter into the sale agreement within 30 days. As per the allotment terms and conditions itself allottee/complainant never approached the OP for taking possession. So, complaint is not maintainable, 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-14 to Ex.C18. 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 also not written any letter to the complainant 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 the complainant was to take the possession within 30 days from the allotment and not executed agreement within prescribed time, therefore, the complaint is not maintainable, 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 or they can cancel the allotment, but the OP failed to send any notice nor the allotment was cancelled. Though the agreement to sell was executed late and the same was not within time, but the agreement was executed, whereas 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
26.07.2023 Member Member President
