Punjab

Ludhiana

CC/22/233

Ankur Gupta - Complainant(s)

Versus

M/s G.K.S.Infra - Opp.Party(s)

12 Jul 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No: 233 dated 31.05.2022.                                                        Date of decision: 12.07.2024. 

Ankur Gupta S/o. Sh. L.D. Gupta, resident of H. No.106, Panchsheel Enclave, Lal Bagh, New Rajguru Nagar Extn. Backside MBD Mall, Ferozepur Road, Ludhiana. Aadhar Card No.8240-2213-9811, Mobile No.93568-54656 and e-mail ID is

                                                Versus

1. M/s. G.K.S. Infrastructure Ltd., Head Office SCO No.41, GK Mall, Jawaddi, Ludhiana-141001, through its Authorized Signatory.           
2. Director, M/s. G.K.S. Infrastructure Ltd., Head Office SCO No.41, GK Mall, Jawaddi, Ludhiana-141001.
3. Executive Officer, GLADA, Ferozepur Road, Ludhiana.                                                                                                          …..Opposite parties 

Complaint Under Section 35 of the Consumer Protection Act, 2019.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

MS. MONIKA BHAGAT, MEMBER

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. L.D. Gupta, Advocate.

For OP1 and OP2          :         Exparte.

For OP3                         :         Complaint against OP3 stands already                                       dismissed as withdrawn vide order dated                                  08.08.2023.

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                In brief, the facts of the case are that OP1 issued advertisements regarding developing of a residential colony in village Ramgarh, Tehsil and District Ludhiana allegedly approved and sanctioned by PUDA and OP1 invited applications from general public for allotment of plots in the said colony. Believing the advertisement of OP1 and OP2, the complainant applied for allotment of plot measuring 125 sq. yards in the said colony. OP1 and OP2 vide allotment letter No.512 dated 02.02.2012 allotted plot No.462 measuring 25’X45’ of 125 sq. yards for a sale consideration of Rs.14,62,500/- to be paid in installments as per payment schedule, which is reproduced as under:-

                   (i)      First 25% of the sale consideration at the time of issue of the                       allotment.

                   (ii)     Next 25% of the sale consideration after 3 months

                   (iii)    Next 50% of the sale consideration after 3 months

                   (iv)     Balance payment after 10 months

The complainant further stated that as per clause No.3 of the allotment letter, “Possession letter of the plot was to be issued separately after checking the accuracy of dimensions and area of the plot.” The complainant paid the entire sale consideration of the plot as per detail reproduced as under:-

Even OP1 gave in writing on backside of receipt No.978 dated 14.08.2012 that “Final amount: Final payment of plot is done today.” OP1 and OP2 executed sale deed of the plot in favour of the complainant. Thereafter, the complainant approached OP1 and OP2 for issuing possession letter as per condition No.3 of the allotment letter so that he could raise construction of his house on the plot but OP1 and OP2 did not issue possession letter of the plot.

                    The complainant further stated that in June 2013, when he went to OP1 with request to handing over possession of the plot, OP1 told him that non approval of the colony from OP3 and assured to hand over possession of the plot after approval and regularization by the competent authorities. As such, finding no other alternative, the complainant through OP1 and OP2 got the plot regularized from OP3 by paying Rs.5940/- to OP3.  However, till date neither the regularization has being granted by OP3 nor possession letter of the plot has been issued to him despite the condition No.6 of regularization letter dated 05.11.2023 i.e. “Regularization of plot/building will be granted in due course after scrutiny of documents provided by the Applicant.” According to the complainant, every time when he approached OP1 and OP2 for issuance of possession letter of plot, they told that possession letter will only be issued after receipt of regularization letter from OP3. Further on approaching OP3 office, they told that this is an unapproved colony so OP3 does not have any control on OP1 and OP2. Despite numerous visits and requests of the complainant, the OPs did not issue possession letter due to which the complainant could not raise construction on the said plot after getting building plan sanctioned from OP3. The complainant further stated that he shocked to receive whatsapp message on his mobile phone from the OPs on 05.05.2022 at 06.04 PM that possession letter will be issued and possession of the plot will be handed over to him only if he pays an amount of Rs.2,71,625/-. When the complainant approached OP1 and OP2 regarding demand of Rs.2,71,625/- they told that the said amount is being claimed from him as per the details reproduced as under:-

1. Rs.1,63,125/- is the amount of Non-construction Charges.
2. Rs.21,000/- has been calculated @ Rs.3.5 per sq. yards for Rera
3. Rs.87,500/- is the amount of External Development Charges (EDC) calculated @ Rs.700/- per square yards.

According to the complainant the said demand of Rs.2,71,625/- is totally illegal and unwarranted, which amounts to deficiency in service on the part of the OPs. The complainant further stated that the OPs cannot change the terms and conditions of the allotment of the plot unilaterally and without his consent. Further there is no condition of charging non-construction fee, EDC and Rera charges in the allotment letter. It is OP1 and OP2 who did not issue possession letter, give demarcation and physical possession of the plot due to which the complainant could not raise construction as such, the OPs have no right to levy and recover non-construction fee. Moreover, the plot was allotted in the year 2012 but OP1 and OP2 are demanding illegal amount in the year 2022 besides they failed to get the colony approved from the competent authority. On receipt of said whatsapp message, the complainant approached OP1 and OP2 stating that there is no condition in allotment letter to charge non-construction fee, Rera or amount of EDC and prayed to issue the possession of the plot without recovery of such illegal amounts but they flatly effused to hand over the possession of the plot without recovery of the said illegal amounts. The act of the OPs in selling the plots without getting approval from the competent authorities and PUDA amounts to deficiency in service and unfair trade practice due to which the complainant has suffered mental tension, torture, agony and harassment for which he is entitled to compensation. In the end, the complainant has prayed for issuing directions to OP1 and OP2 to issue No Due Certificate and possession letter by handing over possession of plot No.462 measuring 125 sq. yards without recovery of any amount of Non-Construction Fee, EDC or any other fee or charges and to quash the demand of Rs.2,71,625/-. The complainant further prayed to issue direction to OP1 and OP2 to refund the sale consideration mount of Rs.14,62,500/- along with interest as well as compensation of Rs.3,00,000/- and litigation expenses of Rs.75,000/-.

2.                Notice of the complaint was sent to OP1 and OP2, but OP1 and OP2 did not appear despite the service of notice and as such, they were proceeded against exparte vide order dated 06.01.2023.

3.                Initially, OP3 appeared through Sh. Pardeep K. Arora, Advocate and filed written statement and assailed the complaint by taking preliminary objections on the grounds of maintainability, lack of cause of action etc. OP3 stated that it has been unnecessarily dragged in false litigation by the complainant. Though the plot in dispute falls in unauthorized colony namely G.K. County, Village Ramgarh, Ludhiana developed by OP1 M/s. G.K.S. Infrastructure Ltd.  OP3 further stated that in 2012, OP1 and OP2 sold the plots falling in this unauthorized colony to the complainant without obtaining approval from the competent authority. However, the Punjab Government vide notification dated 21.08.2013 issued regularization policy for unauthorized colonies in Punjab state under the provisions of Regularization policy dated 21.08.2013 as per the Punjab Laws (Special Provision) Act, 2013. The colonizer applied to regular his colony in the office of OP3 and after considering his application, compounding certificate was issued vide letter No.1056 dated 11.02.2016 by Chief Administrator, GLADA, Ludhiana. Under this regularization policy, the plot owner is also under obligation to take NOC from GLADA which has already been issued to him. Regarding plots falling in private colony, sale & possession of plots, issuance of no due certificate (NDC), entire liabilities are that of the colonizer towards the complainant.

                   On merits, OP3 reiterated the crux of averments made in the preliminary objections and facts of the case. OP3 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

                   During the proceedings of the complaint, the complainant suffered statement to withdraws the complaint as against OP3 and as such, the complaint was dismissed as withdrawn against OP3 vide order dated 08.08.2023.

4.                The complainant filed replication to the written statement of OP3 reiterating the facts mentioned in the complaint and controverted those mentioned in the written statement of OP3.

5.                In exparte evidence, the complainant submitted his affidavit as Ex. CA along with documents Ex. C1 is the copy of allotment letter dated 20.02.2012, Ex. C2 is the copy of receipt dated 19.02.2012 of Rs.20,000/-, Ex. C3 is the copy of receipt dated 20.02.2012 of Rs.3,45,000/-, Ex. 4 is the copy of receipt dated 08.05.2012 of Rs.3,65,000/-, Ex. C5 is the copy of receipt dated 14.08.2012 of Rs.5,32,500/-, Ex. C6 is the copy of receipt dated 14.08.2012 of Rs.2,00,000/-, Ex. C7 is the copy of hand written note dated 14.08.2012 regarding receipt of final amount,  Ex. C8 is the copy of receipt dated 05.11.2013 of Rs.5940/- of GLADA, Ex. C9 is the copy of detail of the charges of Rs.2,71,625/-, Ex. C10 is the copy of letter of GADA dated 08.11.2021 and closed the evidence.

6.                We have heard the arguments of the counsel for the complainant and also gone through the complaint, replication, affidavit and annexed documents and written statement produced on record by the parties.

7.                From the allegations made in the complaint and the exparte evidence led in support thereof, which has gone unrebutted on the file, it has been established that the complainant applied for a residential plot measuring 125 sq. feet, the total value of which was Rs.14,62,500/-. OP1 and OP2 vide allotment letter No.512 dated 20.02.2012 Ex. C1 allotted plot No.462 measuring 25’X45’ of 125 sq. yards to the complainant. The complainant paid the entire sale consideration of Rs.14,62,500/- through receipts Ex. C2 to Ex. C6. As per condition 3 of the allotment letter Ex. C1, OP1 and OP2 were under an issue possession letter separately after checking the accuracy of issue possession letter and hand over possession of the plot to the complainant despite receipt of entire sale consideration. It is further in evidence and established fact from the written statement filed by OP3 that OP1 and OP2 have sold the plots falling in unauthorized colony to the complainant without getting approval from the competent authorities. It is also in evidence that OP1 and OP2 have not issued possession letter in favour of the complainant with regard to plot in question. Rather demanded Rs.2,71,625/-(Ex. C9) being charges for non-construction, EDC and Rera charges without invoking any clause or condition of allotment letter and rather OP1 and OP2 have not chosen to contest this case and have been proceeded against exparte. In this regard, reference can be made to 2021(3) CLT 309 in Gaurav Prehar Vs Altus Space Builders Pvt. Ltd. And others in which the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh has made the following observation:-

“(i) Consumer Protection Act, 2019, Sections 2(42), 47 & 49(2) -Housing constructions – Pleadings - Ex-parte - Adverse inference –Held - The whole purpose of pleadings is to give fair notice to each party of what the opponent’s case is and to ascertain with precision the point(s) on which the parties agree and those on which they differ-The purpose is to eradicate irrelevancy-The complaint is a concise statement of facts and if no reply is filed to the complaint, the averments made therein are deemed to have been admitted-OP was proceeded against exparte-Thus, all the averments made in the compliant are deemed to have been admitted by it and the evidence led by the complainant stands unrebutted; for which an adverse inference is to be drawn against OP-complaint partly allowed”

The complainant has consistently pleaded that OP1 and OP2 had failed to hand over the possession of the plot even till the date of filing the present complaint. As such, the act and conduct of OP1 and OP2 amounts to deficiency in service on their part.

8.                In this regard, reference can be made to Ireo Grace Realtech Pvt. Ltd. Vs Abhishek Khanna & another (2021) 3 SCC 241, the Hon’ble Supreme Court has held that “allottees who have not been given possession, cannot be made to wait indefinitely for possession, nor they can be bound to take possession in other phase of the project. Such allottees are entitled to refund of entire amount deposited by them.” Further reference can be made to Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and others Vs DLF Southern Homes Pvt. Ltd. & others (2020) 16 SCC 512, whereby the Hon’ble Supreme Court of India has held that “failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within the contractually stipulated period, amount to deficiency.” Further, it has been held by the Hon’ble Supreme Court that “in case of gross delay in handing over possession by builder beyond contractually stipulated period, flat purchaser is entitled to just and reasonable compensation for such delay and such compensation not constrained by terms of rate which is prescribed in an unfair bargain.

                   As such, after appreciating the documents on record, this Commission is of the view that the complainant is entitled to compensation for deficiency of service and unfair trade practice on the part of OP1 and OP2. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress injustice done to the complainant. The amount of compensation can be determined by taking into facts and circumstances of each case and also mitigating circumstances that may arise in favour of OP1 and OP2 as well. Reference can be made to 2020(3) Apex Court Judgments 27 (S.C.) in DLF Home Developers ltd. (Earlier known as DLF Universal Ltd.) & another Vs Capital Green Flat Buyers Association Etc.

                   In these circumstances,  the demand of Rs.2,71,625/- raised by  OP1 and OP2 is liable to be quashed and further OP1 and OP2 are liable to be directed to refund the amount of Rs.14,62,500/- received from the complainant by way of installment towards the price of the pot in question besides the composite costs of Rs.20,000/-

9.                As a result of above discussion, the complaint is allowed exparte with an order that the demand of Rs.2,71,625/- raised by OP1 and OP2 is hereby quashed and set aside. It is further ordered that OP1 and OP2 shall refund the amount of Rs.14,62,500/- along with interest @9% per annum from the respective dates of deposit till realization within 30 days from the date of receipt of copy of order, failing which the complainant shall be held entitled to further interest @3% on the said amount from the date of order till date of actual payment. OP1 and OP2 shall further pay a sum of Rs.20,000/- (Rupees Twenty Thousand only) as composite costs to the complainant.  Compliance of order be made within 30 days from the date of receipt of copy of the order. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

10.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

(Monika Bhagat)                              (Sanjeev Batra)               Member                                         President  

Announced in Open Commission.

Dated:12.07.2024.

Gobind Ram.