BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.227 of 2020

      Date of Instt. 07.08.2020

      Date of Decision: 07.03.2022

Sukhwant Kaur W/o Sh. Jagmohan Singh, R/o 1062 Urban Estate, Phase-2, Jalandhar.

..........Complainant

Versus

Jalandhar Improvement Trust, Hotel Skylark Chowk, Jalandhar, through its Chairman.

….….. Opposite Party

          Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)

                   Sh. Jaswant Singh Dhillon       (Member)                                         

Present:       Sh. P. M. S. Narang, Adv. Counsel for the Complainant.

Sh. Brijesh Bakshi, Adv. Counsel for the OP.

Order

Dr. Harveen Bhardwaj (President)

1.                This complaint has been filed by the complainant through his attorney Sh. Aman Verma, wherein it is alleged that the OP in the year 2011, carved out a development scheme of 94.97 Acre known as Surya Enclave Extension, Jalandhar and allotted plot No.261-D, measuring 200 Sq. Yards, situated at Surya Enclave Extension, Jalandhar to Sh. Om Parkash, vide allotment letter No.JIT/4625 dated 02.04.2012. That thereafter Sh. Om Parkash appointed Jagmohan Singh as his general attorney vide GPA No.286 dated 17.04.2012 registered in the office of Sub-Registrar, Jalandhar and the intimation to this effect was given to the OP vide letter dated 05.11.2012. That thereafter, the above said plot was transferred in the name of the complainant by the OP vide transfer letter no.JIT/3445 dated 10.11.2015 and complainant became the owner of the above said plot. The complainant paid a transfer fee of Rs.85,000/- to the OP. That Sh. Om Parkash and complainant paid all the installments alongwith interest to the OP. The complainant has paid the entire sale consideration alongwith interest upto 26.09.2014. As per terms and conditions of the allotment letter No.JIT/4625 dated 02.04.2012, the OP despite of making of the entire payment has miserably failed to handover the physical possession of the said plot to the complainant. The complainant visited the office of OP many a time, but the officials of OP kept on lingering the matter on one pretext or the other. The officials of OP always told the complainant to wait for some more time. The complainant wrote request letter to the OP requesting the OP to handover the possession of the plot in question vide letter which has been received by the OP vide dairy no.5033 dated 26.06.2020. The OP did not give any reply to the letter of the complainant nor gave possession of the plot to the complainant till date. Also the OP till date has not carved out any roads nor laid the sewerage and water supply pipes nor has erected electric poles or electric wires and has not done any development work at the site, for giving possession of plots, as per the terms of allotment letter. The OP has never written any letter/notice to the complainant for taking the possession of the plot or for execution of any documents. That till date, the complainant is running from pillar to post, but act and conduct of the OP is adamant, unlawful, arbitrary and the act of the OP has caused great mental tension to the complainant and complainant has suffered mental agony at the hands of the OP 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 give possession of plot in question or in alternative direct the OP to refund the amount of Rs.82,32,670/- i.e. Rs.43,11,430/- amount paid by the complainant, Rs.85,000/- transfer fees and Rs.38,36,240/- interest @ 15% per annum from 26.09.2014 to 26.07.2020, alongwith further interest @ 15% per annum till the date of payment by the OP to the complainant. Further OP be directed to pay Rs.5,00,000/- to complainant as compensation for causing mental tension, harassment, pain and agony to the complainant and Rs.20,000/- 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 present complaint is not maintainable against the answering OP. 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 was originally allotted to Sh. Om Parkash under physically challenged (Handicapped) category vide allotment letter No.JIT/4625 dated 02.04.2012. The said allottee entered into sale agreement regarding the plot in question vide sale agreement dated 19.08.2015. 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 JIT 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. In the meantime the said allottee applied for transfer of the plot in question in the same of Smt. Sukhwant Kaur on the grounds that he had sold the said plot to her. 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 or payment/part payment of the sale price can be refunded to allottee/transferee. Even otherwise the complainant is not entitled to any relief from this Commission. There is no provision in Punjab Town Improvement Act, Rules or Government instructions for refund of sale money. 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. On merits, the factum in regard to allotment of plot in question to Sh. Om Parkash is admitted. It is also admitted that the original allotte moved an application for transfer the plot in favour of the present complainant, 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 produced on the file their respective evidence.

5.                We have heard the arguments from the learned counsel for the respective parties and have also gone through the case file very minutely.

6.                It is admitted and proved fact that Om Parkash S/o Harbans Lal applied for the allotment of the plot in Surya Enclave Extension Jalandhar. It is also admitted and proved fact that he was allotted the Plot No.261-D measuring 200 Sq. Yd. under the 94.97 acre scheme as per Ex.C-2. The contention of the complainant is that said Om Parkash appointed Sh. Jagmohan Singh S/o Darshan Singh as his General Attorney as per Ex.C-3 and intimation to this effect was given to the OP. After that the plot was transferred in the name of the complainant, vide transfer letter dated 10.11.2015 Ex.C-5, transfer fee was paid and has been proved as Ex.C-6. The complainant has also proved on record the documents Ex.C-7 to Ex.C-13 to show that the entire amount of the plot was deposited by both the original allottee and the complainant.

7.                It has been admitted by the OP that the original allotte moved an application for transfer the plot in favour of the present complainant vide Ex.OP-3. The affidavits filed by seller Om Parkash and the purchaser (complainant) Ex.OP-4 and Ex.OP-5. The original allottee Om Parkash has also submitted agreement to sell, which was duly filled and signed by the original allottee Om Parkash and the chairman JIT as per Ex.OP-2. The contention of the Counsel for the OP is that the complainant never approached the OP for taking the possession as it is the duty of the allottees to take the possession of the plot. But this contention is not tenable as the complainant has produced on record the application filed by her before Chairman JIT on 26.06.2020 seeking the possession of the plot. It has been specifically mentioned in this letter that she has visited the office of JIT number of times and even moved applications, but possession was never given nor any positive reply was given by the OPs. So, this contention is not tenable that she never approached for possession. It has been mentioned in condition No.7 of Allotment Letter Ex.C-2 and Ex.OP-1 that all the amenities and development shall be completed within 2½ years of the allotment and after giving the agreement, the possession of the plot shall be handed over to the allottee, but in the present complaint despite the agreement to sell and depositing of all the installments, no notice has ever been issued to the complainant to take over the possession of the plot. It has also not been proved by the OP that the all amenities to be provided to the allottees are complete and the development of the area is also complete. It has not been proved by the OP that to avoid the non-construction charges, the complainant herself has not approached for the possession. No completion certificate has also been produced on the file by the OP. Even the OP has not disclosed this fact that the Status Quo order was passed by the Hon’ble High Court and despite that they have allotted the plot. Thus, they have committed unfair trade practice. The case titled as “Jalandhar Improvement Trust Vs. Munish Dev Sharma Sanjay Gupta” was decided by the Hon’ble National Consumer Disputes Redressal Commission. This case also relates to the Surya Enclave Extension Jalandhar, consisting of a development scheme over an area of 94.97 acre of land, in which the Hon'ble National Commission has held that “Non-delivery of possession –Deficiency in service – Unfair trade practice – Costs – Appellants despite having full knowledge of the status quo order of the High Court, issued allotment letters – In spite thereof, Appellant- Trust had gone ahead and allotted plots in question to the respondents, which it could not have done so – Appellants have played fraud with the general public and thus collected huge amount of money”.

                   It has further been observed by the Hon'ble National Commission that the appellants having full knowledge that the scheme in question could not see the light of the day still promoted the scheme to befool the public. Thus, the appellants have adopted unfair method as well as deceptive practice in promoting the sale of the plot in question and this act was held to be covered under the meaning of unfair trade practice. This law is fully applicable to the facts of the present case as the present case also is covered under the Surya Enclave Extension Scheme, Jalandhar covering an area of 94.97 acre. There is a deficiency in service as well as unfair trade practice on the part of the OP.                               It has been held by the Hon’ble Chandigarh State Commission, cited in 2016 (4) CLT 526, in a case titled as “Ms. Rubel Goyal Vs. M/s Puma Realtors Private Limited”, which is as under:-

                   “Housing construction – Offer of possession – Lack of   basic amenities – Alleged deficiency in service and unfair trade           practice – complaint filed – Fact that certain amenities and       approvals were complete/obtained after offer of possession,     clearly proves deficiency of the OPs – There is nothing, on         record that, complete development, in respect of plot, in question,        and amenities at the site as promised, as per the Agreement, were           available at site – Moreover, OPs were not only deficient, in    rendering service but also indulged into unfair trade practice, by        offering a paper possession to the complainant, before          completing the development as also without obtaining the       necessary approvals – OPs were thus, duty bound to provide all    basic facilities like roads, sewerage, drinking water, street lights,          drainage etc.”

                   It has been further held by the Hon’ble Chandigarh State Commission, cited in 2017 (3) CLT 566, in a case titled as “Usha Rani Vs. Puma Realtors Pvt. Ltd.”, which is as under:-

                   “Housing Construction Paper possession offered without        completing development work at site Deficiency in service       Complaint There was promise to make development OPs were   duty bound to provide all basic facilities Obtaining of certain amenities and approvals after offer of possession clearly proves     deficiency of service and unfair trade practice.”

                   “Housing Paper possession Non-completion of    development work Deficiency in service Consumer complaint     Refund of deposited amount Entitlement of On violation of           material condition in handing over possession of unit in time, it is     not obligatory for a purchaser to accept possession after that     date Complaint entitled to refund of consideration amount       Obligation to refund money received and retained without right        carries with it right to interest Amount to be refunded with         interest @ 12% p.a.”

8.                Thus, in view of the above detailed discussion, we are of the considered opinion that the complainant is entitled for the relief claimed and accordingly, the complaint of the complainants is partly allowed and OP is directed to refund the price of the plot along with interest @ 9% per annum from the date of payment, till realization and further, OP is directed to pay a compensation to the complainants for mental agony and harassment caused to the complainants, to the tune of Rs.30,000/- and further directed to pay 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.

9.                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     

07.03.2022         Member                          Member            President