BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.129 of 2014
Date of Instt. 22.04.2014
Date of Decision :16.03.2015
Krishan Kumar Gupta aged about 76 years son of Late Shri Vidya Parkash Gupta, R/o 64, New G.T.B.Nagar, Jalandhar.
..........Complainant
Versus
1. Nitishree Infrastructure Limited, through its M.D/Chairman, B-111, Sector-5, Noida-201301(U.P).
2. M/s Shourya Towers Pvt.Ltd, D-44, Sector-6, Noida-201301,(U.P.
.........Opposite parties
Complaint under section 1 2 of the Consumer Protection Act.
Before: S. Jaspal Singh Bhatia (President)
Ms. Jyotsna Thatai (Member)
Sh.Parminder Sharma (Member)
Present: Sh.SC Sood Adv., counsel for complainant.
Sh.Karan Kalia Adv., counsel for opposite parties.
Order
J.S.Bhatia (President)
1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, against the opposite parties on the averments that the complainant was allured by the various advertisements got published by the opposite party for development of residential colony on project namely Shourya City, Jalandhar, Punjab. The complainant is a senior citizen and has invested his lifetime earning with the opposite parties for purchase of the residential plots advertised by them in the year 2005-2006. On 29.3.2006, the complainant paid an amount of Rs.1 Lac vide receipt No.623 and the total basic price was fixed as Rs.15,76,250/-. It was further agreed that the plot to be purchased by the complainant was to measure 250 Sq.yards with basic rate of Rs.6305/- per sq.yards. Thereafter, the complainant paid other installments to the opposite parties towards the total price and as on 4.1.2007, the complainant had paid an amount of Rs.3,95,000/- out of the total payment and an amount of Rs.11,81,250/- was due. It was manifestly clear that the purchase of the plot by the complainant would be of any use only if the entire project is developed after taking all the requisite licence/ permission/licences from the concerned departments. Though the opposite parties did not move an inch towards fulfilling the same and the complainant as on 15.5.2007 had paid total amount of Rs.7,95,000/- out of the total amount and only an amount of Rs.3,87,187/- was balance, meaning thereby that substantial amount had already been paid. Plot No.25 of a total area of 250 sq.yards was allotted to the complainant by the opposite parties and payment was also received towards the purchase of the same. Thereafter, on 15.5.2007 the opposite parties kept a total silence with regard to the sale to be effected and also with regard to the development of the project in toto. Inspite of the above said payment being made by the complainant, the opposite parties failed to make any development in the project and no visible infrastructure was developed. The development of project was never initiated and the site on which the project was to be developed remained idle, barren and unused. The opposite parties have already received substantial amount of money and the project had not moved an inch over the years inspite of the fact that such a huge amount has been received. In December 2007, the opposite parties have promised to pay the penal amount of Rs.5/- sq.ft per month till the completion of construction of the project. Presently, the opposite parties are liable to pay the penal amount to the complainant. The money of the complainant was illegally retained by the opposite parties and misused. No development of project took place and ultimately on 16.1.2011 a demand letter was issued to the complainant, wherein the basic sale price of the plot was escalated upto Rs.16,25,220/- and against the agreed amount of Rs.15,76,250/- as stated in the earlier letters. The said demand in itself was totally illegal, the complainant received a letter from the opposite parties, wherein opposite parties admitted their guilt and their failure to develop and kick-start the project, in the said letter the opposite parties demanded various documents from the complainant. Thereafter, the opposite parties have wrongly started demand of extra development charges which they are not liable to receive. However, another demand letter was received by the complainant wherein some additional charges of Rs.3,12,500/- were imposed and the said demand/amount was never part of the purchase. The opposite parties illegally made the above demand and with an intention to usurp the money invested by the complainant, opposite party issued the letter. Again on 31.12.2011, the complainant received letter, wherein it was threatened that allotted plot No.25 would be cancelled in case of non-payment of the amount. The complainant has already been ready and willing to pay the balance amount out of the basic price of Rs.15,76,250/-. However, there is no reason for the opposite party to make or seek any demand from the complainant in excess of the basic price especially when the opposite parties have themselves admitted their negligence and delay. The complainant wrote a letter to the opposite parties on 28.2.2012 objecting the raise of such demand, as the same was never a part of contract. The letter issued by the complainant was never replied by the opposite parties. The money invested by the complainant has been blocked for no valid reason and the complainant and the opposite parties have miserably failed to develop the project and following failure on the part of the opposite parties has made the project non starter.
a) High tension wires divided the colony into two parts and the said wires passed vertically above the colony and at present there are wires at the very entry of the main gate.
b) No certificate has been issued by the Municipal Corporation, Jalandhar till date giving clearance and the individual site plans are not being sanctioned by the corporation for construction of the house.
c) There is no provision for water supply in the area for human consumption.
d) Similarly, the sewerage laid down by the opposite parties has not been connected with the sewerage of Municipal Corporation. Even this little bit has been done after expiry of more than 6 years since the inception of the scheme.
e) No electricity connection can be obtained in the area as electricity board has till date not agreed to give electricity connection in the colony.
f) Further in whole of the colony there is no provisions of disposal of treated water.
g) The park has not been developed at all and there is neither any community hall for the assembly of the residents.
h) No parking facility for the residence.
2. The licence has been granted to the opposite parties by the Jalandhar Development Authority(JDA), bearing licence No.JDA-2011/13 with 31 conditions to be complied with before any approval is given for the sale. The opposite parties have not complied with these conditions and no approval has been given till date. On such like averments, the complainant has prayed for setting aside demand of Rs.3,12,500/- raised by the opposite parties and further directing the opposite parties to deliver the possession of the plot No.25 to him and to get the sale deed executed after getting the completion certificate from the concerned authority. He has also demanded penalty amount of Rs.5 per sq.ft. per month from December 2007 or in the alternative interest @ 12% p.a on the amount of Rs.7,95,000/-. He has further claimed damages of Rs.1 Lac besides litigation expenses.
3. Upon notice, opposite parties appeared and filed a written reply raising preliminary objections regarding maintainability, suppression of material facts, want of cause of action etc. They further pleaded that the complainant approached the opposite parties for getting the plot in the Shourya Greens, Near Kamal Vihar in the year 2006. Accordingly a plot No.25 was allotted to the complainant and he has deposited the part payment thereafter. Earlier also the opposite parties applied for the licence with the Government Authority i.e Jalandhar Development Authority. The said authority took too much time to grant the license to the opposite parties and the licence was issued to the opposite parties vide license No.JDA-2011/13 dated 23.12.2011 after completing all the legal formalities and the opposite parties have to deposit other charges including external development charges i.e Rs.400/- per yard for saleable area as per notification No.SO00/R.31/1995/2011 dated 15.4.2011, amounting to Rs.75,90,756/- (Rs.53,47,946/0 vide DD No.125617 dated 9.12.2011 and Rs.22,42,810/- vide DD No.047720 dated 9.11.2009 and DD No.047796 dated 16.11.2009). The above said amount has been adjusted by the JDA in the shape of other charges. Photocopy of the license issued by JDA is attached. In the mean time, the opposite parties have deposited the said amount with the JDA Authority. The opposite parties have issued demand letter to the complainant vide which the opposite party claimed the extra development charges from the complainant and till today the complainant has paid part payment only of the BSP i.e basic sale price. When the complainant has failed to discharge the liability then the opposite parties issued the letter dated 9.4.2013 to the complainant to make the payment of Rs.11,82,375/-. In the said letter detail has been given regarding the payment to be made by the complainant to the opposite parties. The complainant is liable to make the payment of Rs.3,12,500/- as external development charges including the other chargers as the complainant has failed to make the payment of the said amount including total amount of Rs.11,82,375/- as on 9.4.2013. The complainant has failed to make the payment, therefore, he is not entitled to any amount even @ Rs.5/- per sq.ft. per month. He is not entitled for claiming any penal amount of Rs.5/- per sq.ft. The opposite parties are only to make allotment of the vacant plot to him. They denied other material averments of the complainant.
4. In support of his complaint, learned counsel for complainant has tendered into evidence affidavits Ex.CW1/A and Ex.CW2/A along with copies of documents Ex. C1 to Ex.C12 and closed evidence.
5. On the other hand, learned counsel for opposite parties has tendered affidavit Ex.OPA alongwith copies of document Ex.OP1 and closed evidence.
6. We have carefully gone through the record and heard learned counsels for the opposite parties.
7. The main dispute between the parties is regarding external development charges of Rs.3,12,500/- claimed by the opposite parties from the complainant. According to the complainant, the opposite parties are not entitled to charge any external development charges from him. On the other hand, counsel for the opposite parties contended that JDA i.e Jalandhar Development Authority, has demanded external development charges from the opposite parties subsequent to the date of allotment of plot of the complainant. He further contended that complainant is bound to pay external development charged demanded by the JDA. Counsel for the complainant contended that at the time of allotment, there was no condition regarding the payment of external development charges and as such he is not liable to pay the same. We have carefully considered the contentions advanced by both the parties. According to the own version of the complainant, the plot was allotted to him in the year 2006. On the other hand, external development charges have been demanded by JDA from the opposite parties subsequently is as evident letter dated 28.7.2008 Ex.C3 @ Rs.26.78 Lacs per acre. So external development charges were demanded by JDA from the opposite parties subsequent to the date of allotment of the plot to the complainant. The matter would have been different if external development charges have been demanded by JDA from the complainant before the date of allotment and in that case, complainant could have said that while fixing price of the plot, the opposite parties have taken into consideration external development charges. In the present case, the external development charges was imposed by JDA subsequent to the date allotment of plot to the complainant. Where any statutory authority has imposed external development charges upon the opposite parties, they are bound to pay the same and in such circumstances the complainant and other allottees are also liable to pay the same of prorate basis. So in our opinion, the complainant is liable to pay external development charges demanded by the opposite parties. The plot was allotted to the complainant in the year 2006 and whereas at that time opposite parties have not obtained licence from the competent authority to carve out the colony. The licence was only granted to it in December 2011. Ex.C7 is copy of licence dated 23.12.2011. Even in their written reply, the opposite parties have pleaded that the said authority took too much time to grant the license to the opposite parties and the licence was issued to the opposite parties vide license No.JDA-2011/13 dated 23.12.2011 after completing all the legal formalities. So floating of the scheme and carving the plots/colony without obtaining license under the Punjab Apartments and Property Regulation Act 1995 constitute an offence. At the time of booking of the plot by the complainant, the colony was illegal. However, as per compounding policy of the State Government, the opposite parties were issued license on 23.12.2011 i.e after more than 5 years from the date of allotment letter to the complainant. The opposite parties have also not obtained completion certificate till date. No completion certificate has been placed on record by the opposite parties, meaning thereby that opposite parties have failed to develop the project within reasonable time from date of allotment of the plot to the complainant for one reason or another. Since, the opposite parties are at fault in carving out the colony and allotting plot to the complainant without obtaining licence from the competent authority under the above said Act, as such they have no right to demand any interest or penal interest from the complainant or to enhance the basic price fixed initially. Ex.C6 is provisional allotment letter dated 22.1.2007 wherein basic price is mentioned as Rs.15,76,250/-. Further from the letter dated 15.5.2007 Ex.C8 it is also evident that opposite parties have already received Rs.7,95,000/- from the complainant. Even in this letter, basic price is mentioned as Rs.15,76,250/-. So opposite parties are not entitled to enhance the basic price of the plot fixed at the time of allotment of the plot to the complainant. The carving out colony without obtaining licence by the builder, constitute deficiency in service. So complainant is also entitled to damages as money remained struck in the project for long time due to non obtaining of licence by the opposite parties and developing the scheme area within reasonable time. The complainant has demanded Rs.1 Lac as damages. The complainant has already paid Rs.7,95,000/- to the opposite parties as evident from letter dated 15.5.2007 Ex.C8 issued by the opposite parties. Since the making of payment more than 7 years have elapsed. Even applying bank rate on the above said amount, the damages of Rs.1 Lac claimed by the complainant are quite reasonable and in our opinion even on lower side. So complainant is granted Rs.1 Lac as damages from the opposite parties which may be adjusted in the outstanding amount against him. The complainant has also claimed penalty @ Rs.5/- per sq.ft per month from December 2007 or in the alternative interest @ 12% p.a on the amount of Rs.7,95,000/-. In para 8 of the complaint, the complainant has pleaded that in December 2007, the opposite parties have promised to pay the penal amount of Rs.5/- sq.ft per month till the completion of construction of the project. The complainant has not led any reliable evidence to prove that the opposite parties agreed to pay Rs.5/- per sq.ft per month to him. No such agreement has been produced by the complainant. So in our opinion, complainant is not entitled for any penalty from the opposite parties. The complainant has further prayed for directing the opposite parties to deliver him possession of the plot bearing No.25 after obtaining completion certificate from the concerned authority. In our opinion, in such type of cases, no definite time frame can be fixed by the Forum to fully develop the area and to obtain completion certificate from the competent authority as it depends upon various factors. However in case, the opposite parties fails to develop the area and obtain completion certificate from the competent authority and thereafter deliver the possession of the plot to the complainant within reasonable time or the period, if any, mentioned in the agreement which might have been executed by the parties, the complainant can always approach to this Forum for compensation alleging deficiency in service on this score. However, before getting the possession from the opposite parties, the complainant is liable to pay the remaining outstanding amount to the opposite parties.
8. In view of above discussion, the present complaint is partly accepted and opposite parties are directed either to pay Rs.1 Lac to the complainant as damages or adjust the same against the outstanding amount due from the complainant. They are further directed to complete the development in the scheme area as earlier as possible but in case of of undue delay in developing the scheme area, the complainant shall be at liberty to approach this Forum claiming damages from the opposite parties. Further opposite parties are entitled to external development charges from the complainant. In the circumstances of the case, the parties are left to bear their own costs. Copies of the order be sent to the parties free of costs under the rules. File be consigned to the record room
Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia
16.03.2015 Member Member President
