BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.290 of 2020

      Date of Instt. 15.09.2020

      Date of Decision: 11.08.2022

Vishav Kapoor aged 33 years S/o Sh. Satish Kapoor, R/o 151/4, Central Town, Jalandhar, Punjab.

..........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)

                   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 submitted application No.091157 on prescribed form to OP for plot measuring 100 Sq. Yds. alongwith 10% earnest money of Rs.1,70,000/-  through draft No.658307 alongwith all the requisite documents fully completed and complied with all the requirements. The complainant was allotted plot No.205-C under Vikas Scheme 94.97 Acre (Surya Enclave Extension), Jalandhar on 06.06.2016 measuring area 100 sq. ft, in lucky draw dated 19.05.2016 at Red Cross Bhawan, Jalandhar. The information regarding the allotment of plot was given by OP vide its letter No.JIT/866 dated 06.06.2016 to the complainant. As per the said allotment letter in case of delayed payment the OP was entitled to receive interest @ 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 OP. 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 government instructions/directions from time to time. The site was to be developed within 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. Complainant has made the agreement with OP. The complainant has deposited all the requisite papers for the registration of the application with the necessary fee and other formalities 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 prospective 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.17,00,000/- to the OP as per the allotment letter dated 06.06.2016. The complainant had paid full payment by installments, 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 four years. The complainant was shocked to see the terrible condition on the spot. 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. There is high tension wire passing through closely to the plot again making it to risky, these have not been moved/replaced till date also no electricity connection is available till date. The condition further worsens during the rainy season as water clogging take place with the area being used as a dumping ground the area emanates unbearable stink. There is an illegal slaughter house being run on one of the plots despite other illegal occupations. There is no possibility of carrying out construction in the said area a total hazard medically also. The OP has no plausible explanation whatsoever in respect thereto it has been a long period since the date of allotment and the OP does not seem to be serious in the front of fulfilling its promised advertised plots. Even after protracted follow up and lapse of more than four 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 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 deliver actual and physical possession of the plot bearing No.205-C alongwith all the facilities and development as has been advertised and agreed upon between the complainant and the OP and the approved site plan within two months alongwith interest @ 18% on the 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 or in the alternative to refund the amount of Rs.19,57,000/- alongwith interest @ 18% per annum from the date of deposit upto the date of actual payment to the complainant. Further, OP be directed to pay Rs.5,00,000/- as compensation for causing mental tension and harassment to the complainant and Rs.10,000/- as litigation expenses and Rs.5000/- 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 OP. The plot in question i.e. Plot No.205-C was allotted to the complainant vide allotment letter dated 06.06.2016. The said allottee entered into sale agreement regarding the plot in question vide sale agreement dated 15.07.2016. 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. The allottee could take possession after entering in to sale agreement. The plot was sold on as is where is basis and the allottee has to accept the dimensions/area as per site. Thereafter the allottee entered in to sale agreement with the JIT on 15.07.2016. But the complainant did not approach the Jalandhar Improvement Trust to take possession from JIT. As such it was to be considered that he had the possession of the plot especially after entering into sale agreement of the said plot. The complainant has failed to put up any request made by him or any letter document whereby possession was ever denied to him. 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 awaken from her deep slumber and given an application to seek possession from Jalandhar Improvement Trust 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/transferee does not approach the department/Jalandhar Improvement Trust to take possession the said person cannot blame the Jalandhar Improvement Trust for their own defaults. As per the allotment terms and conditions itself allotee/complainant never approached the OP 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 non existence of basic works at site in the Scheme. However JIT 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. 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. 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 complaint 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. On merits, the factum with regard to allotment of the plot No.205-C to 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.                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.205-C 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-2/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-1, Ex.C-3 to Ex.C-7, which includes earnest money and mortgage charges. The complainant got the application, moved for allotment of plot financed from Punjab National Bank and in a draw the plot No.205-C was allotted to the complainant. The contention of the complainant is that despite taking the entire money from the complainant, the possession has not been delivered nor the amenities have been provided to the complainant as was agreed vide Ex.C-2.

7.                The counsel for the OP, on the other hand has argued that the sale agreement was entered into between the allottee and the OP on 15.07.2016, the same has been proved as Ex.OP-2. He has submitted that as per the terms and conditions of the agreement, the allottee was to raise construction on the plot within 36 months. The formalities for handing over the possession were completed, but the complainant did not approach the OPs to take possession from the JIT nor any request was ever made by the complainant to the OP for handing over the possession to the complainant. The OPs have never denied the possession to the complainant. In order to avoid the non-construction charges, the present complaint has been filed by the complainant as he has not fulfilled the terms and conditions of the allotment letter. He has submitted that demarcation has already been done and due to the fault of the complainant the possession has not been handed over to the complainant.

8.                Perusal of the photographs filed on record by the complainant Ex.C-9 to Ex.C-11 show that the complainant is standing in the area, which is nowhere seems to be developed or demarcated area. Ex.C-12 consisting of five pages are the news published in Dainik Bhaskar and other newspapers, wherein it has specifically been published that the land, which has been allotted to the complainant and other allottees are already in illegal possession of third persons, but no action has been taken by the OPs to remove those illegal possession and to handover the actual possession to the complainant. The complainant sought the information under RTI Act, vide Ex.C-20 & Ex.C-21. The agreement to sell has been executed between the complainant and the OPs, which has been proved as Ex.C-8/Ex.OP-2. The complainant has proved on record the news publication of the year 2021 also which show that till 20 April, 2021, the land of 94.97 acre of Surya Enclave was under the illegal possession of the third persons. These news publications have been proved by the complainant from Ex.C-28 to Ex.C-32. These news publications relate to the period 2020 and 2021. These news publications and the letter Ex.C-22/Ex.OP-3 are in contradiction to each other. As per Ex.C-22/Ex.OP-3, which is dated 22.07.2020 the water supply and sewerage was there and the polls of the street light were also installed and the allottees have been asked to take possession, but whereas the news publication show that the possession cannot be handed over to the complainant as the plots are in illegal possession of other persons. The counsel for the complainant referred report of Local Commissioner, which was appointed in concerned case tiled as Amit Kumar Sharma Vs. JIT, the contents of which are ‘the road 40 feet is kacha road and that has been blocked due to some construction by someone. There was no properly demarcation of the said plot and other adjoining plots, but some burjis are seen. The sewerage is not in proper working condition. Sewerages lines, manholes are open and filled with garbage and mud’. In support of his report, he had clicked the photographs also. As per report also the plots are not in a habitable condition nor in a condition to construct the house nor the same are demarcated properly. No objections to the report of Local Commissioner have been filed by the OP. The document attached with the agreement to sell, which is Schedule (1) shows that the columns of this document are blank, even the name of the allottee has not been mentioned in this document. This clearly shows that this is the standard proforma of the OP and they don’t bother to get the same filled in, but only signatures of the allottee are obtained on the paper, which are there on this document. The terms and conditions mentioned in the allotment letter Ex.OP-1 and Ex.C-2 show that condition No.7 provides that all the installments are to be paid within 2 ½ years and all the development facilities shall be completed within 2 ½ years and possession of the plot can be taken after executing the agreement to sell. The agreement to sell was executed on 15.07.2016, but as per the record produced by the complainant and the report of the Local Commissioner, the facilities to be provided have not been provided till now. The OP has issued letters to the allottees to take the possession, but the position and condition of the land of the plots, the possession of which is to be handed over, is such inhabitable condition that no person can live there. Though the OP has issued the notice to the complainant to take the possession of the plot as the amenities as per condition No.7 of allotment letter are complete, but the OPs have failed to prove that all the amenities to be provided to the allottes are complete and the development of the area is also complete. The OP has also failed to prove that the illegal possession of the third person, over the land to be allotted for plots, has got been vacated from them. More so, the photographs and the news publications also prove the condition of the plots on the spot. It has been held by the Hon’ble State Consumer Disputes Redressal Commission, U. T. Chandigarh, in a case titled as “Usha Yadav Vs. M/s Manohar Infrastructure and Construction Pvt. Ltd. & Ors.” 2021 (3) CLT 488 (CHD) that ‘mere taking a bald ground to the effect that the plot is ready for possession and that the complainant can be asked to take possession thereof, in the absence of any evidence to the effect that the plot area is habitable, has no value in the eyes of law. Burden of proof that the project has been completed and the site, in question is fully developed or is about to complete is on the builder/OP. No completion certificate has been produced on record by the OP. The contention of the OP is that the completion certificate is not required in the present case, but this contention is not tenable. It has been held by the Hon’ble State Consumer Disputes Redressal Commission, Punjab, in a case titled as “Gurvak Singh Vs. Punjab Urban Planning and Development Authority (PUDA) and Others” 2021 (3) CLT 515 (CHD) that the completion/occupation certificate is required to be obtained by every promoter before delivery of possession of the plot/flat/unit etc. to the allottee. OP fall under the definition of promoter. It has been held by Hon’ble State Consumer Disputes Redressal Commission, U. T. Chandigarh, in a case titled as “Vineet Arora Vs. Emaar MGF Land Limited & Others”, 2017 (2) CLT 488 (CHD) that ‘possession offered to complainant by builder without completing even basic amenities- Held, act of OP in giving paper possession of the plot, in question, in the absence of development work, basic amenities at the site, amounted to deficiency in providing service and also adoption of unfair trade practice’. 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.”

9.                In the present case, the OP has committed material violation of the conditions of the allotment letter and has not handed over the possession nor has provided the basic amenities nor the development work is complete, therefore the allottees are not bound to accept the offer of possession made by the OP. We are supported by a pronouncement of Hon’ble State Consumer Disputes Redressal Commission, U. T. Chandigarh, titled as “Sandeep Baweja Vs. Chandigarh Overseas Pvt. Ltd. and Others” 2017 (3) CLT 445 (CHD), wherein his Lordship has held 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 the present case also the OP has not provided the amenities and has utilized the money of the allottees with the promise to handover the possession within 2 ½ years of the allotment letter, but the same has not been complied with. This is clear cut deficiency in service and unfair trade practice adopted by the OP, therefore the complainant is entitled to refund/interest on the amount used by the OPs.

10.              In view of the above detailed discussion, the complaint of the complainant is partly allowed and OP is directed to handover the possession with complete all the amenities and development after removing the illegal possession of third person and proper demarcation of the land to the allottees within three months, failing which the OP is directed to refund the amount of Rs.19,57,000 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.

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    Jyotsna               Dr. Harveen Bhardwaj     

11.08.2022         Member                          Member           President