ORDER

(Per: Mr. D.K. Tyagi, Member):

This appeal, under Section 15 of the Consumer Protection Act, 1986, has been preferred by the appellant-complainant against the order dated 12.11.2012 passed by the District Forum, Nainital in consumer complaint No. 137 of 2010, whereby the District Forum has dismissed the consumer complaint.

2.       Briefly stated the facts of the case as mentioned in the consumer complaint are that the complainant being sublimely influenced regarding development of a high-tech, ultra modern and cozy residential colony and sale of residential villas therein at Ramgarh in Nainital Districts’ serene and salubrious environment through the media and glossy promotion material, duly applied for the allotment of a plot under the scheme of CN03/03/06 vide application form No. 276227 at Clout 9 Hill Town, Khabar Ramgarh, Tehsil and District Nainital (Uttarakhand) after payment of requisite money.  As the payment plan (9B Plan) prepared by opposite party, the complainant has paid the entire demanded consideration amount. The glossy brochure released in 2006 by the opposite party clearly states “The Cloud 9 Hill Town a Hill Station” spread over hundred acres of land with unequivocally villas under construction in the ongoing under construction, i.e. Phase-I will soon be handed over to their owners.  More than three hundred people from all walks of life have already patronized Cloud 9 Hill Town.  During several conversation/communication since 2007 with various personnel bearing different designations in the organization of the opposite party, the complainant has been earnestly assured that the construction / development work at the Cloud 9 Hill Town, is almost completed and various families have started residing in their villas. In the month of March, 2010 the complainant was not feeling well and doctors advised him convalescing at some hill station and hence the complainant visited to plot site at Ramgarh, Nainital (Uttarakhand)  and was shocked to learn that inspite of the passage of inordinately long time, the long promises made by the opposite party can never be completed in the near future because till date even the initial work in the Phase-I, have not completed and not more than 10 persons have taken possessions of their buildings/villas owing to lack of development promised by the opposite party. The opposite party has printed photographs in their brochure, but the same completely violated the current position on the spot as the area is totally deserted and inhabitable till today. That due to outright dishonour of the promises made by opposite party vide brochures released by them, the complainant has not only blocked his hard earned money, but also lost the dream of living in Devbhoomi – Uttarakhand’s salubrious and serene environment and hence the opposite party is liable for deficient services as developer/colonizer and restrictive trade practices (as provided in Section 2A of the Consumer Protection Act, 1986).  The cause of action arose to the complainant on entering into the agreement on 2006 and later on making the payments on several dates, thereafter, when the complainant visited the site in March, 2010 and is still continuing.  The complainant has prayed that the opposite party be ordered to pay to the complainant the entire sum, i.e. Rs. 15,29,544/- deposited by the complainant alongwith interest    @ 20% per annum from the date of deposit till the date of actual payment and also the opposite party be directed to pay Rs. 500/- per day from the year 2008, i.e. expected date of completion of the scheme and Rs. 20,000/- as costs of the complaint. 

3.       The opposite party-Central Himalayan Land Development Co. Ltd. has filed written statement and has admitted para Nos. 1 and 2 of the consumer complaint. In reply to para No. 3 of the complaint, the answering opposite party has submitted that no glossy picture was given in the brochure.  The township of Cloud 9 Hill Town was proposed and under construction.  Certain picture of Phase-I project of the company depicted the probable architecture and design was proposed projected in the brochure.  However, these designs were varying due to individual choices.  Para No. 4 of the complaint is admitted.  Para Nos. 5 & 6 are not admitted.  It is pleaded that the entire development work like roads, electricity, restaurant, club house, children park, resort and place of helipad has been completed and smoothly functioning since the year 2008.  If the plot owners are not constructing their cottage over the plot, the total township will appear undeveloped, barren and un-colonized, as stated by the complainant. In additional pleas, the answering opposite party has pleaded that the complainant had applied for registration of plot about 400 sq. yards under Scheme “Clout-9 Hill Township” having the Scheme Code No. CN/03/08 of the Company, through Application Form Serial No. 27627 on 03.09.2006. Application for registration of plot of land was accepted by the company and allotted a plot having No. SV-211, under plot category 351.62 Sq. yards @ Rs. 4,350/- per Sq. yard. The total cost of the plot was Rs. 15,29,547/-.  The cost has to be paid under 9B of the payment plan.  The allotment money of Rs. 2,30,489/- has to be paid within 30 days from the date of issue the allotment letter. In compliance of the terms and conditions of the allotment agreement, the complainant deposited allotment money for residential plot through Demand Draft No. 338089 dated 03.11.2006 amounting to           Rs. 2,30,489/- drawn on ICICI Bank Ltd. on 06.11.2006.  Inspite of allotted the aforementioned plot to the complainant, the complainant remain ignorant to fulfill the terms and conditions of the allotment agreement and did not deposit the installment of Rs. 2,30,489/- within stipulated period, the complainant through letter dated 15.02.2007 addressed to the DGM, Costumer Care of the Company, made request to condone the delay to deposit the allotment money in the shape of first installment of the cost of the plot. The complainant had deposited installment through D.D. No. 341787 amounting Rs, 2,67,670/- dated 31.03.2007.  As per the brochure the entire infrastructure had been completed during March, 2008, and Phase-I project has also been completed and about 49 cottages has handed over to the respective owners/buyers and the finishing work of about 20 cottages was came to the end.  The entire facilities and amenities which are mentioned in brochure are available on site since last three years, i.e. in the year 2008.  The company, through letter dated 11.04.2008, had informed to the complainant to take possession of the allotted plot as the development work, as per the terms and conditions of allotment has been completed. After completion of development work on the site as shown in the brochure, several letters and reminders dated 03.05.2007, 30.05.2007, 03.08.2007 and 03.10.2007 were sent by the company to the complainant for execution of sale deed.  But despite of these letters, the complainant remain absent and did not bother to reply the said letters.  There is no deficiency in service on the part of the company-answering opposite party.  The complainant himself has committed breach of terms and conditions of the allotment agreement by non-executing the sale deed. 

4        The District Forum, on an appreciation of the material on record, has dismissed the consumer complaint vide order dated 12.11.2012 in the above manner.  Aggrieved by the said order, the complainant-appellant has filed this appeal.

5.       We have heard Sh.  Yogesh Sethi, learned counsel for the appellant and Sh. Davesh Bishnoi, learned counsel for respondent and have gone through the entire record of the District Forum and perused the material placed on record. 

6.       Learned counsel for the appellant has submitted before this Commission that the Forum below has not considered the facts that the respondent has not fulfilled the assurances that the entire scheme shall be developed within 18 months and developed plots shall be available for possession.  The District Forum has failed to appreciate that the respondent has admitted in the written statement that in absence of metalled road upto the plot in question, the company will provide means of transport to carry construction material.  It proves that the scheme has not developed upto the date of written statement, i.e. 12.07.2011.  The Forum below has failed to appreciate the fact that 12-13 healthy trees of Banjh are standing over the plot in question as per the Commission’s report and these trees cannot be cut or removed at any cost, therefore, there is no chance to construct a building over this plot.  The District Forum has failed to appreciate the fact that the Commissioner was appointed by the Forum, who inspected the spot in presence of both the parties and submitted report before the District Forum, but the respondent did not file any objection against the Commissioner’s report.  The District Forum has failed to appreciate that on the assurance of respondent to develop plots, the respondent received Rs. 15,29,547/- from the appellant and after that wants to give a plot, which has 12-13 Banjh Trees and, therefore, not fit for construction.  This site is not habitable. Learned counsel has submitted that the respondent has not filed any completion certificate and no evidence of other sale deeds filed by respondent. To cut Banjh trees is prohibited and sale deed of a plot having Banjh Trees cannot be executed.  There is no evidence of water supply, electricity and roads at the spot. 

7.       Learned counsel for respondent has submitted that the road and basic amenities are present near plot in question.  It is the appellant, who is not coming forward for execution of sale-deed.

8.       There is no dispute that the appellant has booked a plot in scheme Cloud-9 Hill Town in the year 2006 and paid the entire amount of consideration, i.e. Rs. 15,29,547/- to the respondent, as per payment plan (9B Plan).  The main dispute is that whether the respondent has developed the land in the year 2008 or upto the period of filing of consumer complaint in the year 2010 and whether basic infrastructure like road, electricity, water supply, club house, children park etc. were not developed as promised through brochure. It is also disputed that whether the area at spot is totally deserted and inhabitable and initial work has not completed in Phase-I.

9.       The appellant had applied on 14.05.2012 before the District Forum for issuance of Commission with a prayer that either appoint a Commission or in alternative District Forum may inspect the site and report about the entire development work and to assess the number of individuals/families if any residing there in from 2006 to 2012.  Respondent did not object against the issuance of Commission. The Advocate Commissioner after giving intimation to both the parties, inspected the spot and took photographs and submitted his report (paper No. 20 to 20/2 on the District Forum’s record) alongwith site plan (paper No. 20/3 on the District Forum’s record) and coloured photographs (paper Nos. 20/4 to 20/8 on the District Forum’s record) and receipt of Shubh Photo Studio (paper No. 20/9 on the District Forum’s record) before the District Forum.  Respondent has not filed any objection against the Commission report dated 20.07.2012. In the Commission report, the Advocate Commissioner has specifically mentioned that he had asked the Manager of respondent about the number of families residing in the scheme, then he replied that only 2 to 3 families staying there, but Commissioner did not find any family residing there. The Commissioner also found 12-13 young, healthy trees of Banjh (Black Jack) over the plot in question and also mentioned in the report that due to standing of 12-13 Banjh trees, construction is impossible on the plot.  We have also gone through the photographs submitted by the Advocate Commissioner. It is submitted by the learned counsel for the appellant that the respondent has complete knowledge of the fact that 12-13 healthy Black Jack (Banjh) trees of considerable age had been standing there and it was not at all possible to fell and cut the same without the permission of Forest Department. There is a total ban on felling of such trees under the provision of The Protection of Trees in Rural and Hill Areas of Uttarakhand Act, 1976.  The appellant had made the entire payment of Rs. 15,29,544/- to the respondent within a short period of one year.

10.     A person who deposited a huge amount within the short time limit cannot be categorized to be remaining careless.  No person is expected to waste his hard-earned money on a parcel of land, which is not worthy and competent to be constructed.  From the perusal of the Commissioner report it is clear that even as of date the development work is not at all complete and no family is residing there. No family or person was available to the Commissioner.  The respondent has not filed any evidence, any completion certificate or any sale deed of the other plots.  There is no evidence of basic amenities like road, electricity, water etc. near the plot in question. There is no evidence on record to show that the project of Phase-I was developed in the year 2008 and possession of 49 cottages were handed over to 49 families and finish work of 20 cottages was about to end.

11.     Although there is no mention of Banjh trees standing over the plot in question, in the consumer complaint, but in the complaint the appellant-complainant has specifically mentioned that when he visited the spot in the month of March, 2010, he found the place as deserted and inhabitable.  Therefore, appellant prayed the District Forum to issue a Commission to inspect the spot.  The Advocate Commissioner has specifically mentioned in the report that upto year 2012, the area is still undeveloped and 12-13 young, healthy Banjh trees are standing over the plot in question and, therefore, no construction work can be done on the plot.  Since, 2006 upto 2012 no family was seen residing at nearby places.

12.     From the facts and circumstances of the case, we are of the view that the District Forum has committed illegality by ignoring report of Advocate Commissioner, who has specifically mentioned that the land is still undeveloped, deserted and inhabitable and due to standing of 12-13 Banjh trees over the plot in question, construction of building is impossible. Therefore, by allotting such undeveloped, deserted piece of land to the appellant-complainant, there is deficiency in service on the part of respondent-opposite party.

13.     For the reasons aforesaid, we are of the view that the District Forum has not properly considered the facts and circumstances of the case and recorded an incorrect finding and erred in dismissing the consumer complaint.  The impugned order is not sustainable in the eyes of law and is liable to be set aside and the appeal is fit to be allowed.

14.     In view of the above, the appeal is allowed. Impugned judgment and order dated 12.11.2012 passed by the District Forum, Nainital is set aside and the consumer complaint No. 137 of 2010 is allowed.  Respondent-opposite party is directed to pay the entire sum, i.e. Rs. 15,29,544/- deposited by the appellant-complainant alongwith interest @ 9% per annum to the appellant from the date of deposit till the date of actual payment, within one month from the date of this order and respondent is also directed to pay Rs. 20,000/- as litigation expenses.  We are not inclined to direct to pay any other amount by respondent to the appellant.