BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.128 of 2018
Date of Instt. 27.03.2018
Date of Decision: 02.09.2022
Vishal Arora son of Sh. Davinder Singh Arora resident of House No.2805, Sector-47 C, Chandigarh through Special Power of Attorney Holder Sh. Dhanwant Singh S/o S. Nand Singh R/o 3592, Sector 69, Mohali, SAS Nagar.
..........Complainant
Versus
1. The Jalandhar Improvement Trust Jalandhar through its Chairman/Executive Officer/Authorized Signatory etc.
2. The Chairman/Executive Officer, Jalandhar Improvement Trust Jalandhar.
….….. Opposite Parties.
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. A. P. S. Pathania, Adv. Counsel for the Complainant.
Sh. Brijesh Baskhi, Adv. Counsel for OPs No.1 and 2.
Order
Dr. HarveenBhardwaj (President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that the opposite parties floated a development scheme for area of 94.97 acres for the allotment of residential plots in Surya Enclave Extension, Jalandhar, Improvement Trust Jalandhar and the booking for the said floated development scheme for residential and commercial plots commenced from 08.08.2011 and the opposite parties accordingly invited the applications for the residential plots from various residents of Punjab and India. The present case has been filed through the attorney holder who is also well conversant with the facts and circumstances of the present case. The OPs circulated through various advertisements, media, internet etc. for the allotment of freehold residential plots in Surya Enclave Extension, Jalandhar Improvement Trust, Jalandhar and the application forms were sold by their authorized banks and institutions and the applications to this respect were also received by their authorized banks on their behalf. Therefore, on coming to know about the floating of residential plots through these advertisements given by the OPs for free hold residential plots in Surya Enclave Extension, Jalandhar, the complainant was allured as per the representations given in the said broachers and advertisements and accordingly purchased one application form and submitted to the opposite parties. The complainant applied for a plot of 200 Sq. yards in general category with a hope that the said plot in the development scheme would be allotted to the complainant and the complainant wanted that in his old age he will settle in and around the areas of Jalandhar, especially in the residential area of Surya Enclave Extension, Jalandhar, which was also advertise by the improvement trust in their broachers'. After the draw of plots, the complainant received a letter of allotment no.3405 dated 13.02.2012 from the opposite parties regarding the allotment of residential plot No.232-D, area measuring about 200 Sq. Yards and as per the allotment letter, it also contained the description of terms and condition under which the said plot had been allotted. Subsequent to the allotment of the above said plot to the complainant, he came to know that 6 persons namely Arjan Singh S/o Mangal Singh, Jagdish Singh S/o Gurbachan Singh, Davinder Kumar S/o Khushpal Chand, Kewal Singh S/o Ganga Singh. Amrik Singh S/o Dalip Singh and Bhajan Singh S/o Meja Singh residents of Jalandhar area and the original owners of the land which was acquired by the opposite parties had filed a CWP No.3559/2011 on 23.02.2011 against State of Punjab and JIT and Collector Land Acquisition, Jalandhar, whereby, the said person has sought the quashing of notification U/s 36 of Punjab Town Improvement Trust Act, 1922, published in the Tribune dated 07.06.2010, vide which the development scheme over the land adjoining Surya Enclave i.e. Surya Enclave Extension has been framed under section 24 (1), 25, 28 (2), Sub Para i., ii, iii., iv., v., vi., vii., viii., ix, x, xi, xii of 1922 Act for an area measuring about 94.97 acres . A further prayer for quashing and setting aside the notice U/s 38 dated 11.06.2010 and notification U/s 42 of Punjab Improvement Trust Act, 1922, dated 31.12.2010 being illegal and void has also been made in the said writ petition. Besides, the challenge to the vires of section 40 of Punjab Improvement Trust, 1922 being ultra vires to the fundamental right granted to them under article 14 of the Constitution of India, the prayer was made therein for declaration that the word land in entry 18 Schedule VII, List II of the Constitution does not include constructed area. From the contents of the civil writ petitions filed in the Hon'ble Punjab and Haryana High Court would reveal that 32 acres of land out of 94.97 acres is/has been the subject matter of adjudication in those civil writ petitions in the Hon’ble High Court and the interim order dated 08.03.2011 was passed by the Hon'ble High Court to maintain the “status quo regarding possession”. Subsequently, vide order dated 26.09.2012, along with CWP No.3559/2011, a bunch of similar civil writ petitions No.8618, 8619, 4114, 10785, 8534, 11234 and 16324 of 2011 were also admitted for regular hearing with further direction that “dispossession shall remain stayed”. From these, it is clear that in all these civil writ petitions, the Hon'ble High Court had stayed the dispossession of a big portion of the land acquired by Improvement Trust Jalandhar on or around 08.03.2011, where the JIT had offered to develop the new development scheme of Surya Enclave Extension, yet the opposite parties went ahead with the opening of booking on 08.08.2011, while the aforesaid interim order was in operation. No indication was given to General Public by the Improvement Trust in its broachers', regarding the pendency of the litigation and the interim orders passed by the Hon'ble High Court with respect to the acquisition of land by them for the development of Surya Enclave Extension. Thereby, they had mislead the prospective purchasers of residential plots to invest their hard earned money in that scheme. The complainant being not well versed with the legal position regarding the said fact, simply did not deposit 1/4th of the price of the plot within the period stipulated in clause 6 of the allotment letter, as he genuinely apprehended that so long the interim order was stayed granted by the Hon'ble High Court are continuing, it was not advisable for him to deposit any further installment, since the opposite parties were not in a position to deliver the possession of the plot to him. His aforesaid apprehension has come true. The complainant also remained under the impression that in the light of clause 3 of the allotment letter, he would receive some intimation regarding the next proposal if any for the cancellation of the plot after the expiry of 6 months and by then if various interim orders issued by the Hon'ble High Court against the acquisition of land for the scheme of Surya Enclave Extension are vacated, he should have then deposited the remaining 1/4th amount as well as further installments as mentioned in the allotment letter alongwith any penal interest etc., if any. However, while the interim orders issued by the Hon’ble High Court in various cases are still continuing till date and the civil writ petitions under reference are yet to be finally adjudicated, yet the complainant has not received any intimation from the opposite parties, which implies that in view of the interim orders issued by the High Court, the opposite parties do not propose to take any action regarding the forfeiture of amount initially deposited by the complainant. As the circumstances under which the complainant did not deposit 1/4th amount of the price of the plot and further installments have been created by the opposite parties even after the Hon'ble High Court had issued the interim orders of stay regarding the acquisition of land. That the complainant has waited for a considerable period but he has not received any communication from the opposite parties so far and it appears that the opposite parties are not in a position to hand over the possession of the plot allotted to the complainant, yet improvement trust is retaining the hard earned money of the residents who have applied for the allotments of plot without any justification. Therefore, the complainant is entitled for Rs.3,40,000/- which has been deposited by him alongwith interest and compensation. The complainant has also come across that the allottees have sought refund of the amount deposited by them alongwith interest and compensation and these cases have been allowed by the Hon'ble Punjab State Consumer Commission, Chandigarh in Consumer complaint No.881/2013 (Munish Dev Sharma), which was allowed by the Hon'ble State Consumer Commission, vide judgment dated 30.07.2014 alongwith compensation, costs and interest and the revision petition filed by the opposite parties before the National Commission has been dismissed with exemplary costs of Rs.2.50 Lakhs. Similar cases filed by various other allottees are pending in the Hon'ble State Consumer Commission at Chandigarh. The complainant has received certain documents one month ago obtained by another allottee of the plot under the RTI Act and vide letter No.JIT/3899 dated 30.01.2015, it shows that the OPs have categorically admitted that only 10% allottees have so far demanded the possession from them and they have further admitted that CWPs filed by various land owners are still pending in the Hon’ble High Court and stay on some part of the land acquired by Jalandhar Improvement Trust is still continuing. In such circumstances, the complainant has left with no other option except to demand the refund of amount of Rs.3,40,000/- deposited by him alongwith interest @ 18% per annum alongwith costs and compensation. The complainant also got issued a legal notice dated 11.12.2017, but all in vain and necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to refund back the entire amount of deposited amount of Rs.3,40,000/- alongwith interest @ 18% per annum on the principal amount from the date of making the payment till the date of its realization and further OPs be directed to pay Rs.2,00,000/- as a compensation for causing mental tension and harassment to the complainant and Rs.25,000/- as litigation expenses.
2. Notice of the complaint was given to the OPs, who filed its joint written reply and contested the complaint by taking preliminary objections that the above noted complaint is not maintainable against the answering OP, in the present form under the law. It is further averred that the present complaint is false and frivolous even to the knowledge of the complainant himself and is not maintainable against the OP. There is no provision in the terms and conditions of allotment that in case of the successful applicants for the refund of earnest money deposited by them especially when the 1/4th sale price even has not been deposited. It is further averred that no actionable claim has ever arisen to the complainant to file the present complaint against the OP. The complainant has failed to deposit the part sale money and the complainant is a defaulter and through the present complaint he cannot be allowed to take the advantage of his own wrongs. The averments of the complaint clearly show the malafides as the complainant seeks to jump into the bandwagon of other allottees who raised the dispute of possession etc. and some even may have got some relief on different set of circumstances in different matters. But the present complaint is clearly not maintainable. The complainant who was defaulter on his own account and personal reasons and cannot blame his defaults on false and frivolous pleas of possession or the High Court case which already stands dismissed. It is further averred that the present complaint is not maintainable as having been filed through special power of attorney who is neither competent nor conversant with the facts of the case to file and pursue the present complaint against the OPs. It is further averred that the present complaint is not maintainable being barred by limitation. The refund being sought is for the amount allegedly deposited as earnest money alongwith application for allotment of plot filed in September, 2011. The said allotment stood cancelled and earnest money forfeited way back in 2013 and thus the present complaint is not maintainable and deserves to be dismissed on this short score alone. The complainant is guilty of concealment of material facts and misstatement and has not approached this Commission with clean hands and deserves no relief from this Commission. On merits, the factum with regard to allotment of Plot No.232-D to the complainant as well as depositing an earnest money by 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. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit Ex.CA alongwith some documents Ex.C-1 to Ex.C-10 and closed the evidence.
4. In order to rebut the evidence of the complainant, the counsel for the OPs tendered into evidence Ex.OA alongwith some documents Ex.O-1 to Ex.O-3 and closed the evidence.
5. We have heard the learned counsel for the respective parties and have also gone through the case file very minutely.
6. It is admitted that the complainant applied for the allotment of resident plot in Surya Enclave Extension, JIT, Jalandhar. It is also admitted that the complainant was allotted Plot No.232-D measuring 200 Square Yards and allotment letter Ex.C-6/Ex.O-1 has been proved on record. It is also admitted that the earnest money of Rs.3,40,000/- was deposited by the complainant alongwith the application and the draw of plots was held on 04.11.2011. As per the allotment letter, the complainant was to deposit 1/4th share of the price of the plot within stipulated time which admittedly was not deposited by the complainant. The complainant has alleged that the original owners of the area had filed a civil writ petition No.3559/2011 on 23.02.2011 before the Hon’ble High Court and the Hon’ble High Court directed the parties to maintain status quo regarding the possession. Thereafter, numbers of civil writ petitions were admitted for regular hearing with further direction that dispossession shall remain stayed. As per the complainant, the writ petitions are still pending. Due to pendency of the civil writ petition, the OPs were not in a position to deliver the possession or the plot to the complainant, therefore the complainant did not deposit the 1/4th amount of the total price as well as further installments as mentioned in the allotment letter alongwith penal interest. The complainant has alleged that since the OPs were not owners of the property in dispute and they were not able to deliver the possession and they have wrongly taken the earnest money from the complainant. There is a deficiency in service on the part of the OPs and the unfair trade practice.
7. Counsel for the OP has produced on record the copy of judgment passed by Hon’ble Punjab & Haryana High Court. Perusal of judgment shows that the Civil Writ Petition No.3559 of 2011 and other connected 16 civil writ petitions have been dismissed on 22.12.2015. Perusal of the document Ex.O-2 and Ex.O-3 show that the complainant himself has written a letter to the Chairman Improvement Trust, Jalandhar that due to death of his father, he could not deposit the payment and he himself is not keeping good health and is suffering from Chronic disease, therefore he sought six months time to deposit the amount. Ex.O-3 shows that on 07.08.2012 he again wrote a letter to the Chairman surrendering the plot and made request to the JIT that the 10% of the amount already deposited by the complainant be given to the State Bank of Patiala as he could not deposit the amount of installment/finance to the Bank. Considering the request of the complainant, the OPs vide letter Ex.C-2/Ex.O-4 cancelled his plot and forfeited the amount already deposited by him as an earnest money. The complainant has given the notice to the OP on 11.12.2017 and he has sought the refund of Rs.3,40,000/- of the amount deposited by him as earnest money. In the present complaint as well as in the legal notice, the complainant has not challenged the letter dated 25.11.2013 Ex.C2/Ex.O4, vide which his allotment was cancelled and the amount of earnest money was forfeited. This letter was issued on 25.11.2013 and the complainant was to file the present complaint within two years as per the provisions of Consumer Protection Act. If for the sake of argument, it is assumed that civil writ petition was pending and on 22.12.2015, the same was dismissed. Even then the complainant could have filed the complaint till 2017, but the complainant has filed the present complaint on 27.03.2018 seeking the refund of Rs.3,40,000/-, which was deposited as an earnest money alongwith compensation, interest and litigation expenses, but the complainant has nowhere challenged the letter dated 25.11.2013, vide which his allotment has been cancelled on his request and his amount has already been forfeited.
8. In view of the above detailed discussion, the complainant is not entitled for the relief and the complaint of the complainant is dismissed with no order of costs. Parties will bear their own costs. 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
02.09.2022 Member Member President