Chandigarh

DF-II

CC/25/2023

Amarjit Singh Walia - Complainant(s)

Versus

M/s Innovative Housing and Infrastrucutre (P) Ltd. - Opp.Party(s)

Narinder Pal Sharma

05 Oct 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II,

U.T. CHANDIGARH

 

Consumer Complaint  No	:	25 of 2023
Date  of  Institution	:	11.01.2023
Date   of   Decision	:	05.10.2023

 

 

 

 

 

Amarjit Singh Walia son of Sh.Hartej Naranjan Singh, aged about 69 years, resident of Kothi No.14, Phase-2, S.A.S. Nagar (Mohali)

             …..Complainant

 

Versus

M/s Innovative Housing and Infrastructure (P) Ltd., through its Director Operation Sh.Jagjit Singh, SCO No.198, Opposite Sports Complex, Sector 7, Chandigarh  

   ….. Opposite Party

 

 

BEFORE:  MR.AMRINDER SINGH SIDHU,       PRESIDENT

                MR.B.M.SHARMA,                MEMBER

 

Argued by: Sh.Narinder Pal Sharam, Counsel for the complainant

Ms.Chhavi, Counsel for OPs

 

PER B. M. SHARMA, MEMBER

 

         The case of the complainant precisely is that the OP Company planned an Integral Township in residential Zone in 100 Acres area in Mullanpur Master Plan and accordingly, the complainant along with other persons, applied for the Membership of Punjab Police Consumer Cooperative Society Limited, Mohali in the year 2011-12 wherein the cost of plot was fixed @Rs.11000/- per square yard.  The complainant was enrolled as Member of the Society and allotted Membership No.88 in Project-II of Punjab Police Consumer Cooperative Society Limited and thereafter, he deposited Rs.33 lacs (Ann.C-1).  The said society signed a Memorandum of Understanding with OP on 26.5.2011 (Ann.C-2) for development of plots of various sizes as permitted by GMADA @Rs.11000/- per sq. yards and Rs.3500/- per sq. yards as EDC & IDC etc. It is submitted that the draw of lot of plots was conducted on 11.07.2020 and Plot No.906-C measuring 300 sq. yards was allotted to the complainant (Ann.C-3). Thereafter the complainant deposited development charges amounting to Rs.3.50 lacs with OP on 5.8.2020 through cheque, as first installment, against  total payment of Rs.10.50 lacs of development charges (Ann.C-4).  

It is pleaded that the OP out of total area of 55,000/- square yards which is to be allotted to the members of Society, has allotted plots to the members of Project -II in the area of around 32000 Sq. yards which also included the plots which were allotted to members but they had opted out/surrendered the plots after getting the refund with increased payments. It is also pleaded that in the meetings held by the Sub-Committee of the said Society (now dissolved), it was decided that during the passage of long period of around 10 years, requirements of some members may have changed, hence if any member is willing to down grade or upgrade the area of plot, he/she should be allowed and accordingly, the OP has down-graded the area of plots of some of the willing members whereas in the case of such members who are interested to upgrade and they have made requests, but a pick and choose policy is being adopted by the OP and request of some of the members including the complainant for upgrading of his plot is being denied without any lawful justification. It is further pleaded that one such example is in the case of Smt.Asha Rani Sharda, having Membership No.61(Project No.2) who names appears at serial No.57 in list of Members of said Society, who was earlier an applicant for the allotment of 200 square yard plot but she has been allotted plot measuring 312 Sq. yards by upgrading as per Sr.35 in the list of Members to whom plots have been allotted (Ann.C-5 & C-6).  It is asserted that even the plots of some members who have down-graded the size of their plots, are still unallotted and one such example is of Mr.J.Eleancchezhian, IPS who was earlier an applicant for allotment of 500 square yards whose name is at serial No.179 in the list (Ann.C-5) and his plot has been downgraded to 300 square yards whose name figures at serial No.110 in the list of Members Ann.C-6.

         It is submitted that the Members of Project-II have exclusive right on the land having 55000 Sq. yards areas per clause vi of the Memorandum of Understanding (Ann.C-2) for carving out and allotment of plots to the Members of the Society but the OP is not only ignoring the requests of the Member of Project-II including the request of the complainant for the upgradation of size/area of the plots but also allotting the plots to some persons at the higher rates who are not even members of the Society. It is also submitted that as the OP has allotted some plots from this area to persons who are not members of Society/Project-II, so the OP is required to share the extra amount charged by it amongst the members of Project-II of the Society.  It is also asserted that the possession of plots is being handed over to Members by the OP illegally without getting the layout zoning plan approved from the GMADA and development works are also incomplete. It is averred that the OP can not give the possession of plots without getting the layout/zoning plan approved from the GMADA and completion of development works. It is also averred that in spite of so many verbal requests by the complainant as well as WhattsApp messages dated 27.11.2021 followed by reminder dated 07.12.2021 to the OP for the up-gradation of his plot from 300 sq.yd. to 500 sq.yd. and its early possession by completing all the formalities /development works, no action has been taken by the OP (Ann.C-7 & C-8).  The complainant also served a legal notice dated 05.11.2022 upon the OP in this regard, requesting for up-gradation of his plot area from 300 sq.yd. to 500 sq.yd. and also to resume the development work immediately and complete the entire remaining work of layout/zoning plan and get it approved by the GMADA as per terms & conditions of agreement dated 26.05.2011 but there is no response from the OP (Ann.C-9). It is further averred that the conduct of the OP by non up-gradation of the plot of the complainant from 300 sq.yd. to 500 sq.yds. and selling the plots at higher rate to the persons who are not members of Society amounts to unfair trade practices and further not completing the works and non providing services even after receiving the consideration price amounting to Rs.33,00,000/- of the plot as well as first installment of Rs.3,50,000/- as development charges amounts to deficiency in service. Hence, this complaint has been preferred.

2]       The OP has filed written version and while admitting the factual matrix of the case, as a matter of record, stated that the developer has already made all things available like roads, water, electricity, sewer etc. and only the permission on the part of the government is awaited and that the actual & physical delivery of possession of the plots is delayed due to delay on the part of government due to administrative reasons and constant changes in bye-laws, rules & regulations of the government.  It is stated that the delay has also been occurred due to change in Government of Punjab from time to time as well as outbreak of Covid-19 in the year 2020 and hence there is no fault on the part of the OP.  It is stated that Punjab Police Primary Consumers Co-operative Society Ltd., Mohali has not been made party to the present complaint.  It is submitted that the office bearers of the Society who were in constant touch with the OP developer were aware of the changed facts & circumstances held a meeting of the members and accordingly passed the resolution giving a proposal to the developer to adjust them in another project which was situated closely near to the project in which they had previously applied.  It is stated that the option was given to the members either to give their consent for shifting to the second project on the conditions suggested by the developer or to get the refund of the amount. It is submitted that the upgradation of the plot is not possible because already the allotments have been made to certain other persons and it will amounts to overlapping which will not be conducive for the allottees as well as to the company. It is also submitted that Mr.J.Eleancchezhian, IPS has been allotted his plot as per his option.  It is pleaded that as soon as permission  are granted by the competent authority, the process of delivery of possession will be started. Denying all other allegations and pleading no deficiency in service, the OP has prayed for dismissal of the complaint.

3]       Replication has also been filed by the complainant controverting the assertions of the OP made in the written version.          

4]       Parties led evidence in support of their contentions.

 

5]       We have heard the ld.Counsel for the contesting parties and have gone through the documents on record including written arguments.

 

6]       The thorough perusal of documents on the record especially Ann.C-1 to C-3 clearly establishes that it is the Opposite Party, who received the entire payment from the complainant in the year 2012 and accordingly allotted Provisional Plot No.906-C measuring 300 sq. yd. to the complainant and agreed that the possession will be delivered, after completion of all development works of basic amenities such as sewerage, storm water, water supply, electrical services and tertiary water lines etc. and with all regulatory  clearances, on or before 31.3.2021.  It is undisputed that the OP failed to deliver the possession of the plot till date to the complainant.

 

7]       It is undisputed that as per tripartite agreement, the OP was to provide residential plots to its members on the land to the extent of 55000 sq. yards and out of which only the plots on the area measuring about 32000 sq. yd. have been allotted to the members, therefore, the members of the Society certainly have the right to enhance the area of their plots within the permissible area of 55000 sq. yd., especially once the OP itself has admitted to have given such option to the members. In this view of the matter, the claim of the complainant for enhancement of his plot area from 300 sq. yd. to 500 sq. yd. is fully justified & legal.  

  

8]       It is also established from Ann.C-5 &  C-6 that the plot area of one Asha Rani Sharda (at Sr.No.57 in list Ann.C-5) was later enhanced from 200 sq. yd. to 312 sq. yds. (at Sr.No.35 of list Ann.C-6), further the plot area of one member at Sr.No.179 in list Ann.C-5 has been changed to 300 sq. yd. from 500 sq. yd. (at Sr.No.110 in list Ann.C-6), but the similar set of request made by the complainant for enhancement of plot size has not been acceded to by the OP, which is showing arbitrary and selective approach and amounts to unfair trade practice on the part of the OP.

 

9]       It is also undisputed that the revised lay out plan, alleged to be submitted by the OP with concerned authority, has not been approved till date nor requisite certificates/clearances in respect of basic amenities such as sewerage storm water, water supply etc. have been brought on record by the OP.

 

10]      So far as the contention of OP for non-availability of more plots of 500 square yards is concerned, the same has been falsified by the complainant as per Ann.C-12 placed on record along with his rejoinder.

11]      It is settled law by the Hon’ble National Commission, New Delhi in First Appeals bearing No.557 and 683 of 2003 titled as

“Kamal Sood Vs. DLF Universal Ltd.” decided on 20.04.2007 has observed: “It would be unfair trade practice, if the builder, without any planning and without obtaining any effective permission to construct building/apartments, invites offers and collects money from the buyers.

         The Hon’ble National Consumer Disputes Redressal Commission, New Delhi in First Appeal bearing No.342 of 2014 titled as “Emaar MGF Land Ltd. & Anr. Vs. Karnail Singh & Ors.”, decided on 25.07.2014 has observed: “The appellants should have given firm date of handling over the possession at the time of taking the booking amount itself. By not indicating the true picture with regard to their project to the respondents, the appellants induced them to part with their hard earned money, which also amounts to unfair trade practice.” 

12]      In Narne Construction P. Ltd., etc. Vs.  Union of India and Ors. Etc., II (2012) CPJ 4 (SC), it is held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of the Act.  Similar principle of law was laid down by the Hon’ble Supreme Court of India in Haryana State Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766), while holding as under:-

“…….We would reiterate that the statutory Boards and Development Authorities which are allotting sites with the promise of development, are amenable to the jurisdiction of consumer forum in case of deficiency of services as has already been decided in U.T. Chandigarh Administration & Anr. v. Amarjeet Singh & Ors.[1]; Karnataka Industrial Areas and Development Board v. Nandi Cold Storage Pvt. Ltd.[2]. This Court in Narne Construction (P) Ltd. v. Union of India [3] referred to its earlier decision in Lucknow Development Authority v. M.K. Gupta [4] and duly discussed the wide connotation of the terms “consumer” and “service” under the consumer protection laws and reiterated the observation of this Court in Lucknow Development Authority v. M.K. Gupta (supra) which is provided hereunder :

“5. In the context of the housing construction and building activities carried on by a private or statutory body and whether such activity tantamounts to service within the meaning of clause (o) of Section 2(1) of the Act, the Court observed: (LDA case, SCC pp. 256- 57, para 6):

“…when a statutory authority develops land or allots a site or constructs a house for the benefit of common man it is as much service as by a builder or contractor. The one is contractual service and the other statutory service. If the service is defective or it is not what was represented then it would be unfair trade practice as defined in the Act….”

 

13]      In our opinion, the deficiency in service as well as unfair trade practice resorted to by OPs, is clearly established, which not only caused huge financial loss to the complainant, but also caused him immense harassment & mental agony.    

14]      The house is always a dream project for any person or family for which people happily pay their hard earned money.  In the instant case, the buying of plot at huge price by complainant and not getting it till date has caused immense pain, insecurity and nervousness to buyer/complainant who appear to be a helpless victim of OP’s unethical business tricks. The price of land bought 10 years before has appreciated immensely and it is unethical on the part of the OP to make profit from escalation of the price of land denying the complainant his genuine claim/request for the upgradation of the size of the plot.     

15]      Taking into consideration the above discussion and findings, we are of the considered view that the Opposite Party is found deficient in rendering proper service to the complainant and having indulged in unfair trade practice. Hence, the present complaint of the Complainant deserves to succeed against the Opposite Party. Accordingly, the complaint stands allowed against the OP. The Opposite Party is directed as under:-

a)  To upgrade & allot to the complainant, forthwith, a plot measuring 500 sq. yd. against the already allotted plot of 300 sq. yd. in the same project/area at the rate of Rs.14,500/- per sq. yards (which includes Rs.11000/- per square yard being original allotment price and Rs.3500/- per sq. yard towards external development charge) and handover its possession complete in all respects, alongwith agreed facilities, proper demarcation alongwith completion and occupation certificate issued by the competent authorities and execute the Registered Sale/Conveyance Deed in favour of complainant. 

b)  To complainant shall sign all relevant documents in favour of the OPs in respect of already allotted plot N.906-C (300 sq.yd.) only after getting the allotment and possession of upgraded plot measuring 500 sq. yd., as aforesaid.

c)  To pay compensation of Rs.One lakh to the complainant for causing harassment and mental agony due to deficiency in service and unfair trade practice on the part of OP.

e)  To pay cost of litigation amounting to Rs.25,000/ -.

         The above said order shall be complied with by the Opposite Party within a period of 45 days from the date of receipt of its copy, failing which it shall be liable to pay additional cost of Rs.25,000/- apart from the above awarded amount.

16]      Pending application, if any, stands disposed of accordingly.    

         Certified copy of this order be sent to the parties, free of charge. After compliance, file be consigned to record room.

Announced

05.10.2023                                                                                Sd/-

 (AMRINDER SINGH SIDHU)

PRESIDENT

 

Sd/-

 (B.M.SHARMA)

MEMBER