BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.237 of 2022

      Date of Instt. 14.07.2022

      Date of Decision: 26.07.2023

1.       Gurmeet Singh (Adhaar Card No.8176-4716-5774) aged 47 years     s/o Sh. Guldev Singh, R/o Bank Colony, Sunder Nagar,      Pathankot.

2.       Varinder Mohan Sharma (Adhar Card No.4036-4947-2210) aged     49 years S/o Sh. Jagdish Chander, R/o B/12/162/172, Friends        Colony, Patel Chowk, Pathankot.

..........Complainants

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 Complainants.

                   Sh. Brijesh Bakshi, Adv. Counsel for OP.

Order

Dr. Harveen Bhardwaj (President)

1.                The instant complaint has been filed by the complainants, wherein it is alleged that the complainants attracted and allured by OP's venture for development of Surya Enclave Extension, published and advertised by opposite party to provide dream home with ultra-modern facilities and amenities with high quality and standard under 94.97 Acre Development Scheme in Surya Enclave Extension Jalandhar, with a hope to have a dream house of his own in Jalandhar having near proximity with the airport and a city with better facilities, at present residing in the ancestral home, opted and purchased the plot from the original allottee, from complaint no.2, the project was also promoted by various nationalized banks. The plot was paid for by hard earned money initially by complainant no.2 and then complainant no.1. Originally complainant no.2 applied and deposited a sum of Rs. 3,40,000/- for allotment of 200 sq, yds. plot under 94.97 acre scheme. Complainant no.2 duly submitted an application form alongwith Rs.3,40,000/- as earnest money with the office of OP. Thereafter complainant no.2 was allotted plot bearing no.271-D under the said scheme Subsequently the complainant no.1 purchased the said plot from complainant no.2 after  paying the amount as consideration which had already been made by the complainant no.2 as earnest money i.e. Rs.3,40,000/- to the OP and the said amount was transferred in to the account of the complainant no.2 by complainant no.1 from his account bearing no.05261060000790 HDFC Bank, Saili Road Branch, Pathankot on 28/03/2012 and then, complainant no.1 duly applied for transfer in his name in the year 2012 to office of OP, but was told by OP that the same could be done only after all the payments are cleared as per the schedule and so complainant no.1 made all the payments as per the schedule in the allotment letter and subsequently applied for transfer of the said plot in his name alongwith the requisite fee in year 2014, it is pertinent to mention here that despite all the payments having been duly made by the complainant no.1 the receipts were issued in the name of the original allottee i.e. complainant no.2 as mentioned supra, by the OP. The complainant no.1 made a total payment of Rs 44,90,150/- towards the said plot including 10% extra due to comer plot. Subsequent to this request as per mandate the procedure for transfer was conducted by the opposite party after taking of the requisite fee. As per the requisite procedure a photograph in the office of OP was taken of both complainant no.1 and original allottee complainant no.2 alongwith Sh. Atwal, posted as Superintendent at that time in the office of OP alongwith a self-declaration duly signed with respect to transfer by both the complainant no.1 & 2. Letters bearing no.2809 dated 07/09/2015 and bearing no.2810 dated 07/09/2015 confirming transfer of allotment of the said plot from complainant no.2 to complainant no.1 was issued by the office of OP and duly received by both the original allottee complainant no.2 and complainant no.1, however the receipt for the payment of Rs.85,000/-, made by the complainant no.1 in presence of complainant no.2 for transfer of the plot in his name in the year 2014 was never issued by the opposite party for reasons best known to them, which in itself call for deficiency in service and unfair trade practice in light of Consumer Protection Act, 2019. The original allottee i.e. complainant no.2 had applied for the plot in the year 2011 after making the payment of the earnest money as booking amount. The original allottee i.e. complainant no.2 was allotted plot No.271-D, under Vikas Scheme 94.97 Acre (Surya Enclave Extension), Jalandhar, as per allotment letter bearing no.JIT/3414 dated 13/02/2012 in lucky draw held on dated 04/11/2011 at the rate of Rs.17,000/- per sq. ft. totaling to Rs.34,00,000/- approved by resolution no.335 dated 08.11.2011 further approved by government vide memo no.6/45/05-3SS2/1670 dated 01/03/2006. 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. Agreement to sale which was initially executed in the name of original allottee i.e. complainant no.2 on 27/01/2014 and it was on 26/01/2014 and 27/01/2014 the requisites for transfer of the said plot in the name of the complainant no.1 was initiated. Initially complainant no.2 had deposited all the requisite papers for the registration of the application with the necessary fee and other formalities and subsequent payments were completed within the stipulated period by the complainants. The only formality after letter dated 07/09/2015 which was to be completed was to give the possession of allotted plot to complainant no.1, duly completed with all the amenities and ultra-modem 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 no.1 paid the whole purchase price of plot to opposite party as per the allotment letter dated 13/02/2012 along with interest as and when due and penalty and other calculations of opposite party with respect to the payment of the installment as per the schedule of payment for the said plot and 10% extra being corner plot, which in total amounted to Rs.43,96,200/- plus transfer fee paid twice, total amounting to Rs.44,90,150/-. Despite full payment and compliance of the requisite procedure for the transfer of the plot in the name of the complainant no.1 from complainant no.2 in the presence of complainant no.2 to the OP and also issuance of letter dated 07/09/2015 subsequently in this respect, the requisite transfer in the records of the OP was not done and this fact came to the knowledge of the complainant no.1 only in the year 2020 subsequent to which the complainant no.1 repeatedly requested the opposite party to do the needful at their end. The complainant no.1 wrote letter which was duly received and endorsed by the OP bearing no.5435 dated 07/08/2020 in this regard to which the OP replied vide letter dated 22/09/2020, which was duly responded to by the complainant no.1 by himself visiting the office of OP alongwith complainant no.2 and providing the details of the same, but despite the same the complainant no.1 was forced to make payment of the transfer fee again, vide letter dated 01/02/2021 which the complainant did under protest as huge investment of his hard earned money was at stake, Complainant no.1 again wrote a letter dated 24/03/2022 in this regard. The complainant no.1 was charged Rs.100/- vide receipt no.75347 dated 03/06/2021 and payment receipt for Rs.93,500/- dated 03/06/2021 is on record and another payment of Rs.350/- on 04/05/2021 is also on record. A legal notice dated 06/07/2021 alongwith postal receipts was also got served upon the OP by the complainant no.1, but to no avail the OP in a callous manner ignored the said legal notice and never bothered to reply to the same. The OP to suit their convenience issued a fresh transfer letter dated 03/06/2021. This letter was however duly challenged by the complainant no.1 before the OP vide letter dated 24/03/2022 already exhibited to which also the OP never bothered to revert back to the complainant no.1. Even vide letter bearing no.1329 dated 05/08/2021 only a paper possession is being offered to cover the shortcomings on behalf of the OP when the development as per agreed terms and conditions and advertised has still not been completed on the site till date. After the complainant no.1 had paid the full amount as stated supra, however subsequent when after receiving letter dated 07/09/2015 confirming transfer of the said plot, the complainants visited the site they was shocked to see the state of affairs. It was found that OP had deceived the complainants by misleading and fraudulent advertisement since the allotment of the plot was fake, the area where the plots have been allotted is uninhabitable and unlivable. Neither the OP has developed the site nor offered possession even after lapse of almost 10 years as original allotment pertains to the year 2012 despite repeated requests for the same. The complainants were shocked to see the terrible condition on the spot. Photographs of the area are attached from which the condition of hygiene, development 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 as alleged to have been laid down by the opposite party there is no connection 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 are illegal occupations even on the main access road which passes through C block till date. 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. It is also pertinent to mention here that the said scheme was to be developed as well equipped with ultra-modern facilities and well developed surroundings but now it has come to the knowledge of the complainant that opposite party is moving the illegal colony of Kazi Mandi in the area 6.50 area reserved for multistory flats when advertised, thereby which in turn will be effecting the locality supposed to be developed as ultra-modern. Even after protracted follow up and lapse of 10 years even if be considered from the date of transfer as per letter dated 07/09/2015 even though the allotment is of the year 2011. OP has been 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 complainants, till date tantamount to deceptive and unfair trade practice deficiency in rendering service and deceiving the complainants by not giving the possession the plot as per the agreed terms. The project was launched by the OP in the year 2011 and initial allotment is of year 2012, which in itself attract the odium of deficiency as there was pending litigation before the Hon’ble Punjab & Haryana High Court and the OP could not as per government notifications float the project as the non-encumbrance with respect to the total land was not available to the OP. The 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 on the part of OP 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 return/refund an amount of Rs.43,96,200/- deposited by the complainant no.1 alongwith an amount of Rs.93,950/- charged illegally to which the complainant duly protested total amounting to Rs.44,90,150/- alongwith interest @ 18% per annum from the date of respective payments till the date of 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.

2.                Notice of the complaint was given to the OP, who filed reply and contested the complaint by taking preliminary objections that the above noted complaint is not maintainable against the answering respondent, in the present form under the law. The complainant no.2 having already transferred the plot to the complainant no.1 is not entitled to seek any refund from the respondent/Jalandhar Improvement Trust and at the same time the complainant no.1 being the subsequent transferee and being bound by the defaults of complainant no.2 is not entitled to any relief of refund and at the most can seek possession of the plot in question. It is further averred that the present complaint is time barred. The allotment was made 13.02.2012 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/correspondence 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 no.1 or complainant no.2 to file the present complaint against the OP. The plot in question i.e. Plot No. 271-D of the Development Scheme 94.97 Acre known as Surya Enclave Extension was allotted to the complainant no.2 vide allotment letter no. JIT/3414 dated 13.02.2012 and he received and acknowledged the same. The terms and conditions of the allotment letter are binding upon the allottee and transferee too. As per the terms and conditions of the allotment letter the allottee could enter into sale agreement within 30 days from the date of allotment letter and thereafter the allottee could take possession from the OP. The complainant entered into sale agreement with the OP belatedly. As per the terms and conditions of the allotment the allottee could take possession after entering in to sale agreement. But despite execution of sale agreement the complainant failed to take possession or even file any application for possession. Whereas it was stood understood that he had took possession of his own accord because as per clause 6 of the sale agreement he had undertook to raise construction within 36 months. But the complainant failed to raise construction or to take any further steps and thus he is bound to pay the non-construction charges as per clause 6 of the sale agreement and now to save himself he has wrongly filed the present compliant claiming non-delivery of possession. 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 he was entitled to seek possession after entering into sale agreement within 30 days but he miserably failed to either approach or write even a single letter to the opposite party to take possession whereas the Trust never refused possession rather had been performing its due part throughout. Thus, clearly it does not lie in the mouth of the complainant to say that Trust defaulted in any manner whatsoever when he had defaulted and flouted the terms and conditions of allotment and failed to seek possession as per terms and conditions of allotment. As per clause 12 the plot 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. As per the terms and conditions of the agreement the allottee was to raise construction on the aforesaid plot within 36 months. Whereas all these almost 11 years from allotment neither of the complainant had never given any letter or objection regarding possession. However, suddenly the complainant no.1 woke up after so many years and filed application dated 07.08.2020 and came to seek transfer in his name and at that time even did not complain about possession or any facilities although he complained of the fraudulent act and forgery by a clerk. The record was checked and the complainant no.1 was informed that the plot was not transferred in his name vide Letter no.JIT/9537 dated 22.09.2020. Thereafter he requested for transfer in his name and the OP took the due charges etc and the plot was transferred in his name vide Letter No.JIT/647 dated 03.06.2021. Thereafter as soon as he got it transferred then to avoid the liability of extension fees as the predecessor had already transferred him possession as well as plot (because no one will take on transfer any plot without seeing and satisfying himself of the worth) the complainant no.1 got issued legal notice but the same was not maintainable. However again the site was checked and it was found that the plot was vacant and possession as such the opposite party issued Letter No. JIT/1329 dated 05.08.2021 to the complainant to take possession at site. But instead of bonafidely taking possession the complainant filed the present complaint and demanded refund of amount and interest against the allotment terms and conditions and rather further raised wrong contentions about the lack of facilities etc and made other ill- founded baseless excuses. It is noteworthy that it is for the allottee or transferee to approach the Trust and seek possession and it is not the liability or responsibility of Trust to trace out the people and give possession to them. Whereas all basic facilities to the complainant are complete at site. 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 and 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 complainant is barred by his own act, conduct, delay and laches and negligence from filing the present complaint case and claiming the relief as prayed in the present complaint. The complainant is guilty of concealment of material facts and has not approached the Court with clean hands and as such is not entitled to any relief from this Court. The complainant has got no cause of action to file the present case against the OP. It is further averred that the OP is a statutory body duty bound under the Punjab Town Improvement Act 1922 to seek the compliance of the statutory provisions and rules as per the Act and it cannot be restrained from seeking the compliance of conditions pertaining to the allotments and charging of prices thereof regarding plots/flats in its development schemes. The allotments are subject to the provisions of the brochure, allotment letter and the Act, rules and other relevant Government instructions and the allottees/Complainant are bound by the same. On Merits, the factum with regard to allotment of the plot 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.                The allotment of the plot to complainant No.2 and then transferred to complainant No.1 is a proved and admitted fact. The complainant has proved that vide Ex.C-27/Ex.OP-5 dated 03.06.2021, the plot was transferred in the name of the complainant. As per the letter, the complainant was bound by all the terms and conditions of which the earlier allottee was bound. The complainant was informed that in case of any misrepresentation by the complainant no.2, the allotment shall stand cancelled. As per this letter, the complainant No.1 stepped into the shoes of complainant No.2 and he was accepted by the OP as allottee. Thus, the contention that the complaint is not maintainable, on the ground that the complainant No.2 is no more owner and complainant No.1 has no right, is not tenable.

7.                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 13.02.2012, but the complainant has failed to take possession or even did not file any application for possession, but this contention is not tenable as the photographs and news publications have been proved on record by the complainant, which are from different newspapers and these are from 2020 onwards, which have been proved as Ex.C30 to Ex.C35. 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. Perusal of letter dated 05.08.2021 Ex.C29/Ex.OP6 which was written by OP to the complainant shows that the complainant has not take possession as yet and the complainant was asked to take possession vide letter Ex.C-29/Ex.OP-6 dated 05.08.2021 and the complaint was filed on 14.07.2022. So, it cannot be said that the present complaint is time barred. It was observed by the Hon'ble State Commission in a case titled as “Manoj Bagroy Vs. M/s N. H. Matcon” 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.

8.                With regard to entering into sale agreement with the OP belatedly is concerned, 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 they were to take the possession within 30 days from the allotment, but this contention is not tenable. If the complainant failed to take the possession within 30 days from the allotment and did not execute the agreement within time, then it is the duty of the OP to send a notice to the complainant to execute the agreement and to take the possession, if the complainant does not turn up they can cancel the allotment, but the OP failed to send any notice nor the allotment was cancelled. Even during the pendency of this complaint, the OP has not brought on the file any cogent and convincing evidence except one affidavit of Rajesh Chander, Executive Officer of JIT and a letter Ex. OP/6, whereby the OP can establish that they were ready for handing over the possession of the plot and the same is fit for delivery of possession to the complainant. 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