Punjab

Nawanshahr

CC/57/2015

Anil Kumar Garg - Complainant(s)

Versus

Nawanshahr Inprovement Trust - Opp.Party(s)

Gaurav Sareen

11 Feb 2016

ORDER

DISTRICT CONSUMER DISPUTES   REDRESSAL FORUM, SHAHEED BHAGAT SINGH NAGAR

Consumer Complaint No. 57 of 27.05.2015

Date of Decision            :   11.02.2016

 

Anil Kumar Garg S/o Kapoor Chand Garg R/o 5-B/249, Mall Godown Road, Dhuri, District Sangrur.

….. Complainant

Versus

The Nawanshahr Improvement Trust, Shahid Bhagat Singh Nagar, through its Chairman/executive officer.

Opposite party

 

(Complaint U/s 12 of the Consumer Protection Act, 1986)

BEFORE: 

SH.G.K. DHIR, PRESIDENT

MS.SUSHMA HANDOO, MEMBER

                            

COUNSEL FOR THE PARTIES:

For complainant   :         Sh.Gaurav Sareen, Advocate

For OP                  :         Sh.A.K. Sareen, Advocate

 

ORDER

PER SH.G.K. DHIR, PRESIDENT

 

1.       Complainant, a resident of Dhuri, District Sangrur, filed application for allotment of plot in pursuance of advertisement for launched scheme of residential plots at Rajiv Gandhi Nagar Nawanshahr.  The applications were invited for period from 18.11.2010 to 17.12.2010.  Complainant remained successful in draw of lots and he was allotted residential plot No.27 measuring 100 Sq. Yard vide memo No.NIT3546 dated 30.06.2011.  Total cost of plot was assessed at Rs.6,60,000/-, out of which Rs.66,000/- through draft drawn on Indian Overseas Bank was paid at the time of filing of the application.  Thereafter, Rs.99,000/- alongwith Cess amount of Rs.26400/- more was deposited by complainant in office of OP. Balance amount of Rs.495000/- alongwith interest of Rs.89100/- was deposited in five half yearly installments with OP.  So upto December 2013, an amount of Rs.7,75,500/- was deposited within stipulated period by complainant with OP.  OP was to deliver the possession of the plot within thirty days of the agreement.  Amenities were to be provided, but the OP failed to hand over the possession despite numerous requests and visits made by complainant. Basic amenities like that of Road, Street Light, water supply, sewerage and electricity has not been provided till date.  Even demarcation of the plots, the possession of which to be handed over to the successful bidders, has not been got conducted till date.  Rather, proposed land is in the shape of deep ditches (khuds).  Earlier, some successful bidders knocked at the doors of this Forum and this Forum vide order dated 04.10.2013 directed OPs to hand over the possession of the plot to them by providing all basic amenities by 29.12.2014, failing which OP was directed to refund the entire amount alongwith interest @12% per annum.  That order was confirmed by Hon’ble State Consumer Disputes Redressal Commission vide order dated 30.09.2014.  Additional compensation of Rs.50,000/- even was allowed by Hon’ble State Consumer Disputes Redressal Commission.  As per clause No.14 of the broucher, the allottee was entitled for the refund of the amount, in case basic amenities were not provided.  So by pleading deficiency in service on part of OP and by claiming that cost of construction has increased due to which complainant has suffered a lot in terms of money and mental agony, directions sought to OP to refund Rs.7,75,500/- with interest @12% per annum.  Compensation of Rs.50,000/- for harassment and mental agony, but of Rs.1,00,000/- due to increase of cost of construction and Rs.25,000/- as costs of litigation claimed.  

2.       In written statement filed by OP, it is pleaded inter alia as if complaint is not maintainable because complainant willfully defaulted in performing his part; no notice was served on OP before filing this complaint; as per conditions of the allotment policy, the complainant was to get possession within 30 days from date of allotment, but complainant himself not approached OP for that purpose due to which it be deemed as if possession of the plot had been taken by complainant.  Moreover, it is claimed that the basic amenities of water supply, sewerage and motorable approach path had already been provided at the spot.  It is also claimed that complaint is not maintainable being not within limitation.  Facts regarding allotment and deposit of the amounts are admitted.  It is claimed that duty was of the allottee to approach OP for getting possession within one month from date of allotment.  As per clause No.10 of the allotment letter, if allottee does not approach for getting possession within 30 days from the date of allotment, then he will be deemed to have got possession.  No condition is mentioned in allotment letter for providing the basic amenities/facilities like that of open roads, car parking, street lights, water and sewerage connection, but despite that OP is providing the said amenities/facilities.  Order passed in one case is not of binding efficacy in the other case.  Admittedly broucher was issued by OP and under clause No.14 mention made qua refund of the amount deposited by allottee.  As the basic amenities have already been provided at the spot and as such no loss suffered by        complainant.  Prayer made for dismissal of the complaint.  

3.       In order to prove the case, the learned counsel for the complainant has tendered Ex.CW1/A affidavit of complainant alongwith documents i.e. Ex.C-1 to Ex.C-23 and thereafter closed the evidence.

4.       On the other hand, the learned counsel for OP has tendered in evidence Ex.OPA affidavit of Sh.Ravinder Kumar, EO alongwith Photostat copies of documents i.e. Ex.OP-1 to Ex.OP-9 and then closed the evidence.

5.       Written arguments on behalf of counsel for the complainant submitted and not by counsel for OP.  Oral arguments of both the counsel for the parties were heard and records gone through minutely.

6.       From the pleading of the parties and documents available on record as Ex.C-2 to Ex.C-12, Ex.C-14 & Ex.C-15, it is made out that complainant applied for allotment of plot in pursuance of which he was allotted plot No.27 in Rajiv Gandhi Nagar Scheme of OP and thereafter, he deposited the entire amount of sale consideration alongwith interest and penalties (if any) within stipulated period.  Bone of contention remains as to whether OP committed violation of the terms and conditions of contract agreement by not providing the basic amenities and delivery of possession of the allotted plot.

7.       Perusal of allotment letter Ex.C-4 reveals that complainant, being allottee, had to execute the agreement of sale within 30 days on stamp paper and that agreement in the shape of Form-D was executed as revealed by document Ex.C-14 produced by complainant.  As per clause No.10 of allotment letter Ex.C-4, as well as per clause No.2 of agreement of sale Ex.C-14, the complainant was to get possession of allotted plot in writing within 30 days from issue of this allotment letter or execution of agreement of sale and in the event of default being committed by complainant, it is to be assumed that possession had been got by complainant.  In view of these clauses, it is vehemently contended by counsel for OP that as this Ex.C-4 is of date 30.06.2011, but Ex.C-14 is undated one and as such complainant to be deemed to have got possession of the allotted plot No.27 by 30.07.2011.  Even, if these deeming clauses may be there in Ex.C-4 and Ex.C-14, but despite that no material produced on record to show that delivery of the allotted plot actually was done by OP to complainant after conduct of demarcation.  How complainant could have known the location of site of allotted plot No.27 without demarcation being got conducted qua that no acceptable explanation is offered by OP.  Until and unless demarcation conducted on the spot, complainant definitely would not have known as to where allotted plot No.27 is situate.  That demarcation not shown to be conducted till date and as such actual possession of the plot has never been delivered by OP to complainant.

8.       Paper clippings Ex.C-21 to Ex.C-23 has been produced on the record to establish that site of residential plots allotted under Rajiv Gandhi Nagar Scheme remained under ditches or in the shape of pond for two years even after the carving out of said scheme for allotment of 33 residential plots therein.  If the site of this scheme, in which plot No.27 was allotted to complainant, remained in the shape of ditches or pond for two years after its launch in November 2010, then question of actual delivery of possession of this allotted plot to complainant does not arise until 2012.  So deeming clauses referred above remained meaningless until 2012.  In such circumstances sole statement of complainant through Ex.CW1/A is fully believable that actual delivery of possession of allotted plot to complainant has not taken place till date.  Fault of complainant in not getting possession also is there because he after going through deeming clauses referred above was under obligation to apply for delivery of actual possession of allotted plot.  Instead of filing any application for delivery of actual possession of the allotted plot after demarcation, complainant kept silent and as such he himself is to be blamed for not getting the actual possession till date. However, plot No.27 admittedly has been allotted to complainant in draw of lots and complainant has made the entire payment within stipulated time and as such certainly OP even was under obligation to deliver actual possession of the plot after conduct of demarcation.  That is not shown to be done by OP even till date and as such OP under obligation to demarcate the land and deliver possession of the allotted plot to complainant at earliest, so that complainant who had to shell out hefty amount of Rs.7,75,500/- is not deprived of the fruits of this paid amount.  So in the light of judgment dated 30.09.2014 passed in similar circumstances in FA No.1162/2013 titled as Sh.Suresh Kumar Vs Executive Officer, The Nawanshahr Improvement Trust and another by Hon’ble State Consumer Disputes Redressal Commission, Punjab Chandigarh, we direct OP to deliver possession of plot No.27 to complainant after due demarcation within 60 days from the date of receipt of copy of this order. 

9.       In case titled as Mohit Bindal Vs Haryana Urban Development Authority and others 2013 (3) CPJ 297, Hon’ble National Consumer Disputes Redressal Commission, New Delhi, has held that it is expected from all development agencies, particularly those which are part of government, to make allotments of residential plots after developing the area, so that possession can be handed over to allottee within reasonable period, which usually should be two years or at the most three years.  In case there remains unreasonable or unjustifiable delay of seven years, then the complainant concerned will be entitled to interest @9% per annum.  In the reported case the allotment of plot against paid amount took place in December 1994, but actual possession was delivered in October 2001 i.e. after six years and 10 months and that is why interest was allowed @9% per annum till date of delivery of possession, but by not providing separate compensation for increase of cost of construction.  Compensation for increase of cost of construction even in this case before us cannot be granted because the plot in question is allotted to complainant on old rates and now the prices have increased due to market trends.  Even interest in this case before us till date of actual delivery of possession on the deposited amount, should not be granted because complainant himself have not made any representation for getting actual possession of the plot after issue of allotment letter Ex.C-4 dated 30.06.2011 or of payment of last installment through Ex.C-12 of date 17.12.2013.  Rather, request for refund of the amount made for the first time by complainant by issue of legal notice Ex.C-13 on 29.04.2015 only.  Long silence on part of complainant in not taking action for getting actual possession amounts to acquiescence on his part. Report of the local commissioner appointed by this Forum of date 23.10.2015 also establishes that the plot in question is 8-12 feet deep from the Kacha Road and bushes of depth of 5-6 feet exists therein.  Water is lying scarred in this plot.  The plot in question was identified by the local commissioner with the help of site plan brought by an official of assistant level of the Improvement Trust.  Responsibility of filling the earth was that of the allottee because construction was to be raised by the allottee within three years from the date of allotment as per clause No.3 of agreement to sale Ex.C-14.  Clause No.3 of Ex.C-14 itself provides that in case difference in area at the time of conduct of demarcation surfaced, then allottee will have to accept the area with difference.  When such clause No.3 in Ex.C-14 was existing, then complainant being bonafide allottee of residential plot was bound to apply for demarcation at the earliest, so as to complete construction within three years of allotment of 30.06.2011 (as disclosed by Ex.C-4).  Non-filing of any application by complainant for demarcation or getting possession and now applying for refund of deposited amount by issue of notice Ex.C-13 dated 29.04.2015 and then seeking relief of refund alone through this complaint reflects that complainant at no stage virtually aspired to raise construction in the allotted plot. Even, complainant is not shown to have filed any application for getting the site plan sanctioned for raising construction till date. In view of that also compensation for increase in the cost of construction as well interest on the deposited amount cannot be allowed in this complaint.

10.     Sh.Gaurav Sareen, Advocate admitted during course of arguments that though earlier the basic amenities like that of construction of roads, streets were not provided at all, but now some of these facilities/amenities have been started to be provided during pendency of this complaint.  Executive Officer of Improvement Trust during course of arguments claimed that providing of green belt facility by filling of earth work has been done, but plantation yet to take place.  It is admitted by Executive Officer in course of arguments that parking facility not started yet, but by explaining that as residential area yet to develop and that is why the said parking area facility for vehicles not provided.  It is also admitted that connection of electricity for street light on polls has not been obtained yet.  However, it is claimed that street light points and line of electricity has been erected.  Even, it is claimed that water and sewerage lines has been provided, but by claiming that further connection thereof for individual allotted units to be provided on filing of application by the allottee.  No application for getting water and sewerage connections has been filed by complainant till date and as such fault also lay with complainant in not seeking water and sewerage connections for his plot No.27.  It is admitted by Executive Officer in course of arguments that premix work on the Kacha Built Road yet to be started.  These admissions on the part of Executive Officer in course of oral arguments itself establishes that all the basic facilities has not been provided yet as per terms of broucher Ex.C-1, but some of the basic amenities/facilities alone have been provided.

11.     Report of appointed Local Commission by this Forum of date 23.10.2015 also establishes that five cemented sewerage gutters in the total area of the trust scheme exists, but there was no sewerage pipe line attached to each & every plot individually.  That attachment of the sewerage line for the individual plot to take place on application and payment of the relevant charges by the individual plot holder as per rules and norms.  So this report of Local Commissioner establishes that sewerage pipe lines have been put in the area of the scheme.  Further, as per para No.2 of report of local commissioner there was only one water pipe line in 8-12 feet length in existence and same was passing through plot No.10.  Except this water pipe line, no other water pipe line was present as per this report.  So this report establishes that still due water facility has not been provided in the area.  Even as per report of Local Commissioner no Packa (Mettled) road exists on the spot.  So only Kacha Road with some portion covered with stones only exists on the spot is a fact established by report of Local Commissioner.  In the car parking area only sand on the Kacha Road put and no green park belt/area exists in the trust Area Scheme.  8 polls for street light in the total area were installed, but there were no bulbs except on the four polls as per report of Local Commissioner.  Even, there was no electricity connection provided for these polls.  All these facts are established by the report of Local Commissioner.  This leads us to the conclusion that due facility/amenities of water supply or of building of packa road or of green belt/park or of street light has not been provided till date.  Estimates for providing the basic facilities/amenities were prepared and copy of the same produced on record as Ex.OP-6.  Letter Ex.OP-7 of date 26.05.2015 even has been produced on the record to establish that work of installing water supply and sewerage pipe lines had been completed.  So virtually these works completed just few days before filing of the complaint.  Letter Ex.OP-8 of date 02.09.2015 also establishes that work of installing HT/LT and street light lines is still going on and the same as per Ex.OP-8 completed upto extent of 80%  only.  So not only the report of Local Commissioner, but even oral assertions of Executive Officer of OP and the produced documents establishes that all the basic amenities/facilities contemplated through broucher Ex.C-1 has not been provided till date.

12.     It is vehemently contended by counsel for OP that there is no term and condition laid in the allotment letter Ex.C-4 or in agreement of sale Ex.C-14 or in any other document to cast obligation on OP to provide the basic amenities sought for and as such complaint is misconceived.  That submission of counsel for OP certainly has no force except to the extent that time limit for providing the basic amenities/facilities not stipulated by the agreement.  As and when Improvement Trust scheme is floated by it, then obligation is on it to provide such facilities, so that residential area scheme duly brought into existence. Broucher Ex.C-1 was issued by Improvement Trust itself for inviting offers of purchase from the concerned.  So Ex.C-1 is an instrument of invitation of offers.  Only after going through Ex.C-1, complainant and others put forth their offers for purchase of the plots and on acceptance of those offers, the contract came into existence.  Being so Ex.C-1, the broucher, to be taken as part of contract agreement.  After representing for providing of the stipulated basic amenities/facilities through broucher Ex.C-1, the OP estopped from claiming that broucher Ex.C-1 is not part of the agreement, particularly when it is known to each and every one that no one will accept allotment of plot in the scheme floated by the Improvement Trust unless some basic amenities/facilities are provided for development of residential area concerned.  As through this broucher Ex.C-1 itself, the Chairman of OP trust represented that facilities of wide roads, car parking, park, street light and water and sewerage will be provided and as such those amenities were considered as the basic needs for development of the scheme area by OP itself.  When such basic needs were brought to the notice of the applicants/allottee(s), only then they opted for purchase of the plots.  So OP cannot be permitted to withdraw from the representation they publically made through broucher Ex.C-1. In view of that OP certainly are under obligation to provide the basic amenities/facilities enumerated in the broucher Ex.C-1 within period stipulated hereinafter.  No one would have opted for purchase of plot in the scheme in question till these basic amenities provided and as such if OP fails to provide the remaining basic amenities enumerated in the broucher Ex.C-1 by 30.06.2016 or fails to deliver the possession to complainant by that time, then OP bound to pay interest @8% per annum on deposited amount of Rs.7,75,500/- w.e.f. 01.01.2014 till compliance of order of delivery of possession and providing of remaining basic amenities. Order for refund of the deposited amount must not be passed in this case, particularly when complainant himself has not taken any steps for raising construction within stipulated period of three years from the date of allotment as envisaged by clause -3 of Ex.C-14 by filing any application for sanction of the site plan or of demarcation of the plot and even has not bothered to get possession of the plot by filing any application.  Moreover, the Improvement Trust has now started providing basic facilities/amenities within two years of last installment deposit by complainant through receipt Ex.C-12 on 17.12.2013. Contents of Ex.OP-6, the measurement book establishes that work of construction of roads in Rajiv Gandhi Nagar Scheme was allotted to M/s Magotra Builders vide order No.ITN/202 dated 09.07.2014.  Besides the steps for providing other amenities were initiated by the trust through entries contained in Ex.OP-6. So virtually OP took steps for providing the basic amenities within two years and one month of the issue of allotment letter Ex.C-4.  In that way OP virtually started complying with observations recorded by Hon’ble National Consumer Disputes Redressal Commission, in case of Mohit Bindal (supra) of developing the area within 2-3 years.  When such development works started by OP, then complainant too should have taken the cudgels of filing application for demarcation or of getting actual possession or of filling earth in the allotted plot or of filing application for sanction of the site plan for raising construction etc.  However, no such steps shown to be taken by complainant and as such complainant cannot claim refund of deposited amount for the deficiencies on his part also.  Clause -9 of Ex.C-1 definitely cannot be applied by OP because construction work, if not started due to non providing of basic amenities/facilities, then complainant cannot be penalized for the fault of OP in this respect.  Clause-11 of broucher Ex.C-1 provides that sale deed will be executed on completion of construction only.  When such obligation was cast through clause -11 of Ex.C-1 on complainant, then silence on part of complainant for long definitely bound to come in his way of refund of the deposited amount.           

13.     In the light of our above observations and findings, this complaint is allowed partly in terms that OP will deliver possession of Plot No.27 to complainant after due demarcation within 60 days from the date of receipt of copy of order.  Even, OP is directed to provide all the remaining basic amenities as enumerated in the brouchers by 30.06.2016.  In case these remaining basic amenities are not provided or the possession not delivered to complainant by 30.06.2016, then OP will be liable to pay interest @8% per annum on deposited amount of Rs.7,75,500/- from 01.01.2014 till compliance of the order of delivery of possession and providing of all the remaining basic amenities.  Litigation expenses of Rs.10,000/- will be payable by OP to complainant. 

14.     Copy of this order be communicated to the parties free of cost.

15.     File be indexed and consigned to record room.

Dated:  11.02.2016 

                                      (Sushma Handoo)        (G.K. Dhir)

Member                                  President