BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.265 of 2021

      Date of Instt. 06.08.2021

      Date of Decision: 05.09.2023

Vinayak Kumar s/o Sh. O. P. Bhardwaj aged about 46 years r/o H. No.734-HJ, BRS Nagar, Ludhiana.

..........Complainant

Versus

Jalandhar Improvement Trust, 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. Arvind Sharda, 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 OP is a statutory body engaged in providing housing services in the area of district of Jalandhar. In the year 2011, the OP proposed to develop a development scheme of 94.97 acres. The said scheme was floated under the name & style of Surya Enclave Extension. As per the said scheme, residential plots were to be allotted through lucky draw. The cost of the plots were payable in installments. The complainant applied for a 200 square meter plot in the said scheme by completing all the formalities and depositing an amount of Rs.3,40,000/- with the OP. The plot was to be given to the successful allottees chosen from a lucky draw. The lucky draw was conducted on 04-11-2011 at Red Cross Bhawan, Jalandhar. Vide allotment letter no.4646 dated 02-04-2012, the complainant was informed that he was allotted plot no.383-D in the said development scheme. As per the terms & conditions of the allotment letter, the value of plot was 17,000/- per square meter for a 200 square meter plot coming out to be 34,00,000/-. The complainant had already deposited a sum of Rs.3,40,000/- at the time of making application with the OP. An amount of Rs.6,46,950/- was to be deposited within 30 days of the allotment i.e. upto 01-05-2012. Rest of the 75% of the amount was to be deposited within 2½ years. In this way, the complainant deposited an amount of Rs.39,19,450/- with the OP upto 26-09-2014. Whereas, as per the terms & conditions of the aforementioned allotment letter, the complainant was entitled to take over immediate possession of the plot after making the entire payment. Despite receiving the entire payment from the complainant, the OP did not make any effort to inform the complainant about taking the possession of the plot in question. After that, the complainant approached the OP in order to take possession of the plot in question. To the dismay of the complainant, the OP told that the plots in the aforementioned scheme could not be demarcated due to illegal possession of the land carried by influential persons. The complainant was told that he would be informed to take possession of the plot in question in near future. From that point of time, the agony of the complainant started. The complainant was made to go from pillar to post in order to gather information as to the date, when the possession of the plot in question would be delivered to him. Whereas the complainant had spent almost his entire savings & earnings in making payment towards the aforementioned installments to the OP. Till date no offer/intimation has been issued by the OP to the complainant to take possession of the proposed plot in question. This is so because the proposed plot exists on site plan only and not on the land. The land belonging to the aforementioned development scheme is still under the illegal possession of the influential land grabbers and mafia. The complainant cannot wait for all times to come in order to take possession of the proposed plot in question and later on construct a house for living. This act of the OP of first luring the complainant to make entire payment towards the value of the aforementioned plot and later on their failure to handover the possession of the said plot within promised time, amounts to deficiency on the part 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 refund the amount of Rs.39,19,450/- which was paid by the complainant to the OPs alongwith interest @ 18% per annum from 26.09.2014 till its realization. Further, OP be directed to pay a compensation of Rs.5,00,000/- for causing mental tension and harassment to the complainant and Rs.55,000/- 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 complaint is not maintainable against the answering OP in the present form under the law. It is further averred that the present complaint is time barred. The allotment was made 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 take possession and till date before filing of the present complaint had no objections regarding possession 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.383-D of the Development Scheme 94.97 Acre known as Surya Enclave Extension was allotted to the complainant vide allotment letter no.JIT/4646 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. Whereas as per clause 5 the allottee has to enter into sale agreement within 30 days from the date of allotment and then seek possession after entering into sale agreement. In the present case the allottee clearly defaulted and whereas the Jalandhar Improvement Trust never refused possession rather had been performing its due part throughout. The sale agreement was not executed and the allottee did not approach the Jalandhar Improvement Trust to take possession. Rather vide Letter No.JIT/ 4719 dated 16.02.2016 the complainant was called upon to take demarcation/ possession of the Plot after depositing due amount and execution of sale agreement. But the complainant failed to reply or comply with the same and utterly defaulted to take demarcation/possession. Whereas in the due course the site plan/demarcation plan was also duly prepared for delivering possession at site. But despite demarcation plan being prepared and ready the complainant did not come up to take possession at site. Thus, clearly it does not lie in the mouth of the complainant to say that Trust defaulted in any manner whatsoever when he himself defaulted and flouted the terms and conditions of allotment and failed to entitle himself to seek possession as per terms and conditions 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 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 be was offered as it is as per site on as is where is basis and the allottee has to accept the dimensions/ area as per site. Whereas all these almost 9 years he had never given objection regarding any encroachment or illegal possession. However, suddenly the complainant has now filed the present complaint and demanded refund of amount and interest against the allotment terms and conditions and rather further raised wrong contentions about illegal possession etc. and made other ill-founded baseless excuses. All the more so 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 Improvement Trust to trace out the people and give possession to them. When any allottee/transferee does not approach the Improvement Trust to take possession the said person cannot blame the Jalandhar Improvement Trust for own defaults. As per the allotment terms and conditions itself allotee/complainant never approached the opposite party for taking possession and now leveled wrong allegations. However 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. Rather even vide Letter No.JIT/1570 dated 21.09.2021 the complainant was called upon to take possession of the Plot. Even now Commission 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 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 opposite party. As per the terms and conditions of the allotment letter there is no default in the performance of the Jalandhar Improvement Trust. The 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 his 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. On merits, the factum with regard to allotment of the plot No.383-D 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 very minutely.

6.                The allotment of the plot to the complainant is not disputed rather it is admitted fact. Now the point to be decided is as to whether the complaint is time barred or not. As per the contention of the OP, the allotment was made on 02.04.2012 and possession could be taken by the complainant after entering into sale agreement within 30 days from allotment, but the complainant has failed to do so, but this contention is not tenable as as per letter Ex.OP-2, litigation was pending before the Hon’ble Punjab & Haryana High Court and there was stay granted by the Hon’ble Punjab & Haryana High Court. As per this letter dated 16.02.2016, the complainant was asked to take possession when the water sewerage facilities were not complete as per their own letter. More so, thereafter no letter has been issued informing the complainant that the amenities as per allotment letter are complete till the filing of the complaint. 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. In the present case also, no completion certificate has been produced. Thus, there is continuous cause of action, hence the complaint is within limitation.

7.                Though, as per letter dated 02.09.2021 the OPs have written letter to the complainant that all the basic facilities have been provided, but this letter was issued after filing of the complaint. This clearly shows that till 02.092021 the project was not complete nor there was any facility. The Local Commissioner was appointed by the Commission, who after visiting the Spot gave his report alongwith photographs clicked by him in the presence of both the parties. Perusal of the report of Local Commissioner alongwith photographs shows that there are no roads, electrical polls are fallen, water supply not in running condition, site of park undeveloped and most of the plots in the form of deep pits. 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 cannot be made to wait for delivery of possession for an indefinite period and his demand for refund of the amount deposited by him was justified on account of failure of OP to complete the project/flat within the stipulated time period. This fact is also clear from judgment of Hon'ble State Commission, Punjab Chandigarh in First Appeal No.87 of 2020 titled as ‘Jalandhar Improvement Trust versus Mahabir Prasad’ decided on 10.08.2020, wherein it has been held that ‘complainant cannot be made to wait for delivery of possession for an indefinite period and his demand for refund of the amount deposited by him was justified on account of failure of OP to complete the project/fiat within the stipulated time period Even no completion certificate or occupancy certificate has been produced on record by OP to complete the project/flat within the stipulated time period’. Thus, the complainant is entitled for the relief.

8.                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.

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     

05.09.2023         Member                          Member           President