BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint No.46 of 2018
Date of Institution : 29.01.2018
Date of Decision : 28.08.2019.
Harbans Lal (aged about 43 years) son of Sh. Bhag Ram Malhotra, R/o C-13, University Campus, Ch. Devi Lal University, Sirsa.
……Complainant. Versus
- M/s Dream Buildcon Pvt. Ltd., 10A, Ground Floor, Global Foier, DLF Golf Course Road, Sector 43, Gurgaon through its Director/ Managing Director/ authorized Signatory.
- Global Reality Creation Ltd., registered office 11- Ring Road, Lajpat Nagar, IV Delhi- 110024 through its Director/ Managing Director/ authorized signatory.
- M/s Dream Buildcon Pvt. Ltd., Sirsa C/o M/s Global Space Complex, Sector 21 adjacent to HUDA Barnala Road, Sirsa through its authorized signatory and responsible/ Incharge.
- District Town Planner, Department of Country and Town Planning, Haryana, HUDA Complex, Sirsa.
- Director General Country and Town Planning, Sector 18, Chandigarh.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH.R.L.AHUJA…………………………PRESIDENT
SH.ISSAM SINGH SAGWAL …… MEMBER
MRS.SUKHDEEP KAUR………MEMBER.
Present: Sh.Ravinder Monga, Advocate for the complainant. .
Sh.Rakesh Pareek, Advocate for the opposite parties No.1 to 3.
Opposite Parties No.4 & 5 exparte.
ORDER
In brief, the case of the complainant is that complainant purchased plot no.441 from the opposite parties after assurance of the opposite parties that they are providing one of the best locality with all basic amenities and developments. The said plot was allotted to the complainant by ops no.1 to 3 after completion of all the required formalities. In this regard a plot buyer agreement was reduced into writing with certain terms and conditions on 13.4.2011 alongwith the payment schedule. The complainant is being recorded as owner in possession of the plot No.441 and the entire amount i.e. booking and other charges have also been paid to the ops No.1 to 3. After purchase of plot, it was found that ops no.1 to 3 have slowed down their speed for progress and failed to provide basic amenities and necessary developments and on raising the objections in this regard, no pain has been taken by the opposite parties No 1 to 3. It is further alleged that ops no.4 & 5 are also playing a vital role in the day to day activities of ops no. 1 to 3 and authority for issuance of completion certificate is with ops no.4 and 5 but without obtaining the completion certificate, the sale deed in favour of plot holder cannot be executed. That before purchasing the plot, ops no.1 to 3 and their officials declared that no maintenance charges will be claimed by them before obtaining completion certificate from ops no.4 & 5. Now after constructing a few houses by plot holders in the colony, the ops no.1 to 3 have started to claim Rs.2.50/- per square yard from every plot holder as maintenance charges. Further, ops no.1 to 3 cleverly enhanced the monthly maintenance charges from Rs.2.5 square yard to Rs.4/- per square yard against the terms and conditions of the agreement. As per the plot buyers agreement Sr. No.2 and Sr. No.11, it has been specifically mentioned that “the above price is also inclusive of external development charges as specified by the Director, Town and Country Planning, Govt. of Haryana as on date”. The work of filling and leveling the land up to road level has not been done till date inspite of the fact that representative of the company on 15.4.2015 assured before the District Town Planner, Sirsa that they will start soon. Further, the ops agreed in terms of agreement at Sr. No.10 that “the company shall endeavor to give the possession of the plot of the allottee within a reasonable period subject to force majeure circumstances and reasons beyond the control of the company on receipt of all the installments and all other charges applicable on the plot. Both the parties are bound with the terms of the agreement, so the ops are to fulfill their own term and they are legally bound to do so. It is further averred that ops no.1 to 3 flatly refused to show the completion certificate issued by ops no.4 and 5. That one of the plot holder moved an application to seek the information under RTI Act, 2005. The complainant moved an application before the C.M. Window upon which ops no.4 and 5 were directed to investigate the matter and report. It is further averred that if the ops no.1 to 3 have obtained alleged completion certificate from ops no.4 and 5 or had the area under the control of ops no.4 and 5 being maintained properly then there would have been no hitch for the complainant to pay the monthly maintenance charges to the extent of Rs.2.50 per square yard with the reasonable increase of 0.50 paisa as provided in the agreement on interval periods. Further, the maintenance charges shall be payable only subject to real maintenance work with the satisfaction of the plot holder and habitants and not otherwise. It is further averred that as agreed between both the parties, the ops are only entitled to receive the transfer charges at the rate of Rs.125/- per square yard whereas they have excessively charged at the rate of Rs.300/- per square yard and have adopted unfair trade practice. It is further averred that complainant is regularly contacting with the ops and inquiring about his difficulties being faced on every day. A few of the plot holders further inquired about the working and activities of ops no.1 to 3 from ops no.4 & 5 through RTI and came to know that ops no.4 and 5 have not issued the completion certificate in their favour so far. Further, a short cut method in collusion with ops has been adopted and licence no.483 to 494 under L.C. No.639A of 2006 have been renewed only up to 17.2.2014 and the op no.5 has refused for issuing any completion certificate in the RTI and in another information through RTI, the department is saying that a part completion certificate has been issued on 24.11.2015 with the condition that company will complete the work of sewerage treatment plant within six months i.e. up to 24.5.2016. That the District Town Planner ops no.4 and 5 after lingering on the complaint for one year disposed off it by simply saying that they cannot interfere with the matter which is wrong and in this way, innocent consumers have been cheated by adopting unfair trade practice by ops in collusion with each other. It is further averred that ops have also failed to provide basic amenities like sewerage, water etc. The ops no.1 to 3 have obtained a huge loan from Bank of India, New Delhi branch by mortgaging the property sold out to the plot holders. The ops no.1 to 3 have failed to perform their part of contract whereas on 11.5.2015 their authorized representative has given undertaking before PLA, Sirsa to complete the work as per agreement and not to enhance the development charges till the completion of work. Similar statement was given by him before DTP, Sirsa on 15.4.2015. It is further averred that ops no.1 to 3 have decided to receive per unit electricity charges by their own parameters i.e. more than the commercial charges for which they have no legal right. The ops no.1 to 3 are wriggling out from their immediate liability. That in this way, the ops have caused harassment to the complainants. It is further averred that complainant alongwith some other plot holders earlier moved consumer complaint No.206 of 2016 on 29.8.2016 and said complaint has been decided by this Forum vide order dated 13.12.2017 on the point of pecuniary jurisdiction. The value of the plot belonging to complainant is below Rs.twenty lacs. It is further averred that complainant is regularly visiting and requesting the ops for acceptance of his genuine requests but to no effect. Hence, this complaint.
2. On notice, opposite parties appeared. Ops no.1 to 3 filed written statement raising certain preliminary objections that present complainant and several other interested persons had filed a complaint No.206 of 2016 titled as Geeta and others vs. M/s Dream Buildcon Pvt. Ltd. and others, relating to the same cause of action and the dispute before this Forum which was dismissed vide order dated 13.12.2017 on the ground of jurisdiction but the complainant has filed the complaint on the same cause of action which is not maintainable and barred by limitation. It is further submitted that complainant had executed the plots buyers agreement which was in between the allottees and M/s Dream Buildcon Pvt. Ltd., a company under the Companies Act, 1956 and settled the terms and conditions of the allotment. The terms and conditions of the agreements are binding in all respect on both the sides. As per condition No.24 of the said agreement, the present complaint is not maintainable in this Forum and this Forum got no territorial jurisdiction to entertain and decide the complaint as the jurisdiction relating to the disputes of these plots only lies with Delhi Court. Ops no. 1 to 3 further denied the remaining allegations of the complainant. The complainant purchased the plot in question voluntarily and after understanding all the terms and conditions for the same after seeing the spot. It is wrong and denied that the basic amenities have not been provided by the answering ops as alleged. In fact, all the basic amenities/ facilities have been provided by the answering ops in respect of the plot in question as per the terms and conditions of the allotment as given in the agreement arrived at between the parties. The area is fully developed. It has been further submitted that the complainant has failed to perform his part of the contract as per the terms and conditions of the agreement between the parties. The complainant has failed to execute the sale deed/ conveyance deed in respect of the plot allotted to him despite several letters and the reminders issued to him from time to time, therefore, the answering ops have charged the holding charges @ Rs.25/- per square yard per month being levied with effect from 1st April, 2015. It is wrong and denied that answering ops have no legal right to enhance the monthly maintenance. The answering ops have charged the amount as per law and the rules. As per clause No.18, cost of electric and water services connections etc. are to be paid by the buyers and as per clause No.3 of the agreement, rates of operations and facility management charges per month have been settled. Remaining contents of the complaint have also been denied and prayer for dismissal of complaint has been made.
3. Ops no.4 and 5 filed reply raising certain preliminary objections as that of ops no.1 to 3. It is submitted that licence of the said colony was granted vide licence No.483-494 in the year 2006. It is further replied that with regard to aforesaid licensed colony, Director General Town and Country Planning, Haryana, granted the part completion certificate vide Memo dated 24.11.2015. Ops no.4 & 5 further replied regarding the remaining allegations of complaint that they have no concern and it is between the complainants and ops nos. 1 to 3. It is further submitted that as per record of DTP office, complainant as well as representative of colonizer were called on 10.4.2015 and 15.4.2015 for resolution of grievance. The grievances of complainant was also kept in meeting of committee held on 12.4.2016 constituted for redressal of genuine grievances and complaints of allottees of licensed colonies. It is further submitted that both complainant as well as representative of colonizer were again called for personal hearing on 2.6.2016 for amicable resolution of grievances of the complainant. The answering ops submitted the report to the higher authorities by describing the facts of the matter as well as ruling of the Hon’ble Supreme Court vide this office memo no.2686 dated 9.6.2016. Finally the complaint filed by complainant Smt. Anita Arora was disposed off on C.M. Window. With these averments dismissal of complaint qua ops no.4 and 5 has been prayed for.
4. The complainant as well as ops no.1 to 3 led their respective evidence. When the case was fixed for evidence of ops, none appeared on behalf of ops no.4 and 5 and as such they were proceeded against exparte.
5. We have heard learned counsel for the parties.
6. Learned counsel for complainant has contended that it is proved case of the complainant that complainant had purchased a plot No.441 from ops no.1 to 3 which was allotted to him and had executed a buyer agreement with ops no.1 to 3. The payable amount was paid, but however, ops no.1 to 3 have not handed over the actual and physical possession of the plot after completing the necessary development work like proper sewerage line, proper electricity lines, connections and electricity back up, proper clean drinking water, proper security system, proper roads, path, parking facilities and other horticulture facilities. The ops have claimed excessive amount of enhancement of maintenance and development charges and even have not got the completion certificate from the District Town Planning Department. The ops no.1 to 3 have not executed sale deed despite requests of the complainants as ops no. 1 to 3 have not obtained no dues certificate from the concerned bank from which the ops had raised loan for development of this colony. The complainant and other allottees had also filed a complaint before Permanent Lok Adalat, Sirsa in which Site Manager of the ops no.1 to 3 had suffered a statement by which he had undertaken to provide the necessary facilities etc. and not to charge the excessive maintenance and development charges till handing over the possession as well as execution of the sale deed. It has further been contended that ops be directed to comply with the terms of the contract agreed between the parties and further be directed to complete the work of filling and leveling of land up to road level, to carry out the external and internal developments in compliance of terms of the agreement, further they be directed not to receive transfer fee of the plot more than Rs.125/- per square yard and also to get issued no dues certificates from all the departments including bank in favour of complainant and they be also directed to provide basic facilities of electricity, water, boundary wall, sewerage and sewerage treatment plant etc., to maintain proper water lines, maintaining green belt and also to provide pure water for drinking and also be directed to refund the maintenance charges earlier received from the complainant excessively after Rs.250 square yards, to withdraw the enhanced maintenance charges from Rs.2.50 per square yard to Rs.4/- per square yard and to execute the sale deed after handing over actual and physical possession of the plot in question.
7. On the other hand, learned counsel for ops no.1 to 3 has strongly contended that complainant alongwith other complainants had filed a complaint no.206 of 2016 titled as Geeta and others vs. M/s Dream Buildcon Private Limited and others, which was dismissed on the ground of jurisdiction, but however, complainant was granted liberty to approach the competent Forum. The complainant has also filed the present complaint on the same cause of action for the second time which is not maintainable. Ops no.1 to 3 have filed an application for rejection of the complaint which is also pending. The possession of the plot has already been handed over to the complainant and vide different letters, complainant had been called upon to get sale deed executed after making the balance sale consideration to ops no.1 to 3. NOC of the Bank of India has also been issued and due intimation has already been given to the complainant and other allottees. The partial completion certificate has further been extended by ops no.4 to 5 and the complete completion certificate shall be issued shortly. The complainant is liable to pay all the payable dues which she is legally bound to pay as per terms and conditions of the buyer agreement with interest and other charges before getting sale deed executed. Ops no.1 to 3 have not refused to provide any facility which they had agreed at the time of allotment of the plot or as per terms and conditions of the buyer agreement.
8. We have considered the rival contentions of the parties and have gone through the record carefully.
9. The complainant in order to prove his case has furnished her affidavit Ex.CW1/A in which he has reiterated all the averments made in the complaint. He has also tendered copy of agreement Ex.C1, copy of allotment letter Ex.C2, copy of agreement Ex.C3.
10. On the other hand, ops no.1 to 3 have tendered affidavit of Sh. Chanan Ram, Site Manager Ex.R1 in which he has reiterated all the averments made in the written statement. They have also produced photographs Ex.R2 to Ex.R12 and copies of agreements, copies of letters Ex.R13 to Ex.R31.
11. Admittedly, the complainant had purchased a plot No.441 from ops no. 1 to 3 which was allotted to him in the colony established by ops no.1 to 3 and he paid requisite earnest money to the ops no.1 to 3 after executing necessary documents including buyer agreement. The rights and duties of both the parties qua payment of agreed price of the plot by the buyer and providing of basic amenities etc. by seller flow in the buyer agreement Ex.C1.
12. It is admitted fact on record that earlier to filing of this complaint, complainant alongwith other complainants namely Geeta, Anita, Rekha, Ashok Kumar, and Sanjeev Kumar had filed a joint complaint bearing No.206 of 2016 titled as Smt. Geeta etc. vs. M/s Dream Building Pvt. Ltd. etc. which was dismissed on 13.12.2017 on the ground that since the value of the plots purchased by the complainants are more than Rs.20,00,000/- as such jurisdiction of this Forum is barred and the complaint is not maintainable, but however, complainants were granted liberty to approach the appropriate Forum/ Commission for redressal of their grievances. The perusal of the copy of the order dated 13.12.2017 reveals that since consolidated amount of the plots of the complainants of that complaint including present complainant was more than Rs.20,00,000/- which exceeded the pecuniary jurisdiction of Rs.twenty lacs of the Forum, as such the above said complaint was dismissed with the above said liberty. Since, present complaint has been filed by complainant separately which reveals that complainant has purchased a plot of the area of 200.93 square yards at the rate of Rs.4865.20 per square yard, the gross value of the plot comes to the amount less than Rs.20,00,000/- which falls within the pecuniary jurisdiction of this Forum. So, present complaint appears to be maintainable and contention of learned counsel for ops no.1 to 3 in this regard appears to be devoid of any merit.
13. The second contention of learned counsel for ops is that parties are bound by terms and conditions of the buyer’s agreement. No doubt, both the parties had executed a buyer agreement at the time of allotment of the plot in question to the complainant and both the parties are bound by terms and conditions of the agreement. As per allegations of complainant, ops no.1 to 3 have not complied with the terms and conditions of the agreement rather have violated the same by not providing aforesaid facilities which has been mentioned in the complaint in Para No.10.
14. On the other hand, ops no.1 to 3 have taken the plea that they have provided all the facilities which they had undertaken to provide in the buyer’s agreement. In a petition bearing No.533 of 2014 filed before PLA, one Sh. Atul Tyagi, Site Manager of the respondents no.1 to 4 had suffered a statement, the relevant portion of which is reproduced as under:-
“ Petitioners are the allottees of various plots in our residential colony. In this colony, we have already provided sewerage line. Sewerage treatment plant is yet to be constructed. Our STP shall be joined with HUDA and HUDA has not constructed/ started its STP. Proper electricity line is not there in our colony. There is no provision of electricity backup in the agreement. We are providing drinking water to the residents of our colony directly from tube-wells/ bore-wells. We have not installed RO system to make that water potable. We have laid sewerage and water pipelines as per specification of PWD (B&R) and at proper depth. We have though deputed security guards but we have not completed the construction of four walls of the colony. Only 70% four-walls have been constructed so far. I cannot assign any good reason for not completing the remaining 30% construction of the four-wall. However, we will take every possible steps to complete the construction of remaining 30% four-walls within two months. We have provided proper roads in the colony. We have not obtained completion certificate/ no objection certificate from Town Planning Department, so far. Because the development work is yet to be completed by us and after the completion of development work in the colony, we shall apply for no objection certificate from Town Planning Department. For execution of sale deed on behalf of our company in favour of the allotee, no objection certificate issued by the Town Planning Department is necessary and that certificate is issued in our favour when the builder provides basic facilities of road, sewerage, water, electricity and security in the colony. The colonizer cannot resume the plot of an allottee if the allottee does not agree for executing the sale deed. The colonizer can only impose penalty on such allottee. We have not provided separate parking place in our colony to the allottees. The allottees shall park their vehicles in their houses. We will not enhance the development charges till we complete the construction work of four walls and other development works of the colony”.
15. So, it is apparently clear from the statement of Site Manager that at the time of suffering statement, these facilities/ amenities were not provided for which he had undertaken to provide same within a period of two months. Earlier also complainant alongwith other complainants namely Smt. Geeta etc. filed complaint No.206 of 2016 before this Forum on 29.8.2016 which was decided on 13.12.2017 in which there were specific allegations of the complainants that ops have not provided facilities and amenities which they are legally bound to provide as per buyer’s agreement. Now again the complainant has filed the present complaint with same allegations against ops no.1 to 3 and has made prayer for grant of 15 relieves against the ops no.1 to 3. During the course of arguments, it has been submitted by learned counsel for ops no.1 to 3 that till date completion certificate has not been issued by ops no.4 and 5 and they are getting renewed partial certificate after every two years which is valid till date. The ops no.1 to 3 have handed over possession of the plots to allottees which came forward to take possession and they have also handed over possession to the present complainant also, but however, complainant is avoiding to get sale deed registered due to reason best known to her.
16. On the other hand, learned counsel for complainant has strongly contended that since ops have not provided the requisite and necessary amenities and facilities, they are bound to provide the same at the spot and moreover actual possession has not been handed over at the spot and they are not entitled to charge any maintenance charges as well as enhancement, transfer and development charges from the allottees/ complainant. The perusal of the evidence of the parties reveal that parties are still at cross roads in their pleadings qua the providing and getting facilities in the colony. As per contention of ops no.1 to 3, they have already provided all the facilities, but however, complainant has raised plea that they have not provided all the facilities even after giving undertaking before Permanent Lok Adalat. So, persons like complainant who have invested hard money in order to purchase plot and in order to have their own house in the well built planned colony, but however, their whole dreams became untrue when they find that the facilities and look which was shown in their broacher of the builder have not been provided. But it has been conceded by both the counsel for parties that some further developments have been made by ops no.1 to 3 after undertaking given by representative of the ops before PLA. The ops no.1 to 3 have placed on record no objection certificate of the Bank which is Ex.R30 and letters by which they have called upon the allottees to take possession of the property and to get sale deed executed including present complainant. All the facilities as undertaken by the ops have not been provided to the complainant and other allottees at the spot which clearly amounts to deficiency in service and unfair trade practice on the part of ops. The application filed by ops no.1 to 3 for rejection of complaint also stands dismissed as Jurisdiction of this Forum is not barred as per clause 24 of Agreement and the contention of ops in this regard is devoid of any merit since the remedy provided under Section 3 of the Consumer Protection Act is an additional remedy and no arbitration proceedings are required when a consumer complaint has been filed.
17. After considering all the facts and circumstances as well as evidence on record, we hereby allow the present complaint and direct the ops no.1 to 3 to comply with the terms and conditions of the contract in letter and spirit and to complete work of fulfilling and leveling land up to road level. They are further directed to carry out external development and to issue no objection certificate of the bank in favour of the complainant and are further directed to provide all basic facilities including electricity, water, boundary wall, sewerage and sewerage treatment plant and to maintain proper water lines, green belt and also to provide pure water for drinking as per terms and conditions of the agreement. They are further directed not to enhance maintenance and development charges till aforesaid facilities are not provided to the complainant and other allottees. The ops are further directed to hand over actual and physical possession of the plot in question to the complainant if same has not been handed over and thereafter to get sale deed registered in favour of complainant/ allottees after receiving the balance sale consideration alongwith other payable amount as per terms and conditions of the agreement within a period of two months from the date of receipt of copy of this order, failing which ops no.1 to 3 shall not be entitled to charge any amount on account of maintenance and development charges from the complainant and other allottees. They are further directed to pay a sum of Rs.10,000/- as compensation to the complainant for harassment and Rs.2000/- as litigation expenses to the complainant. A copy of this order be supplied to the parties as per rules. File be consigned to record room.
Announced in open Forum. President,
Dated:28.08.2019. Member Member District Consumer Disputes
Redressal Forum, Sirsa.
