STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

ANSAL Properties & Infrastructure Ltd., through its Authorised representative, Regional Office at SCO No. 183-184, Madhya Marg, Sector 9-C, Chandigarh.

……Appellant/OP

V e r s u s

Nipun Bagroy, # 184, R-Model Town, Hoshiarpur, Punjab.

              ....Respondent/Complainant

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:     JUSTICE SHAM SUNDER, PRESIDENT.

                   MRS. NEENA SANDHU, MEMBER.

S.  JAGROOP  SINGH   MAHAL, MEMBER.

Argued by: Sh. Manish Joshi, Adv. for the applicant/appellant.

PER  JAGROOP  SINGH   MAHAL, MEMBER

                    This appeal is directed against the order dated 5.9.2011, rendered by the ld. District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter referred to as the District Forum) vide which it allowed the complaint filed by the complainant/respondent and directed the appellant/OP as under :-

“12.   ­In view of the above discussion, the complaint is allowed and the OP is directed to pay interest @12% p.a. on the total amount deposited by the Complainant with the OP from their respective date of deposit, till the date of handing over the actual physical possession of the allotted Plot in question to the Complainant, after completion of the entire development works, including amenities, at the site, in toto. The OP is also directed to pay to the complainant a sum of Rs.15,000/- as costs of litigation.”

2.                     The facts, in brief are that in the year 2007, the OP invited applications for allotment of plots @ Rs.11,900/- per sq. yard in Ansal Golf Links, Sector 114, Mohali, in pursuance to which the complainant submitted an application on 11.10.2007 for allotment of a plot measuring 250 sq. yards in the said proposed residential colony and deposited booking amount of Rs.5,95,000/-. On 12.10.2007, the OP had issued the allotment letter, allotting Plot No.244, Sector 114, Golf Links-1, Mohali, in the aforesaid proposed residential colony to him. He  deposited 95% of the total consideration and 5% of the amount was also deposited against the above said allotted plot by the end of March, 2010, on intimating the offer of possession of the allotted plot and also deposited extra development charges, as envisaged in the allotment and schedule annexed thereto. Thereafter, he received a letter dated 16.01.2010 from the OP, offering only paper possession, and upon visiting the site, he found that the development works on the allotted site had not reached the particular stage as laid down in the development linked installment plan. Moreover, the requisite approval from the concerned authorities had not been accorded facilitating offering of physical possession to the allottees. Further, the OP vide statement dated 28.04.2010 demanded Rs.37,520/- from the complainant on account of delayed payment interest although he had already deposited the amount in excess as per development linked installment plan. He met the officials of the OP, however, no plausible justification was given. Faced with this situation, he issued a legal notice dated 19.7.2010, but to no avail. When the grievance of the complainant was not redressed, left with no alternative, he filed a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act).

3.                     In its written statement the OP, while admitting the factual matrix of the case, pleaded that there was no delay; the FCN-cum-offer of Possession was issued in the month of January, 2010 and in accordance with it, the complainant cleared final payment in the month of March, 2010. It was admitted that full and final payment towards basic and extra development charges was received from the complainant and the payment of remaining 5% was deposited as per the wish of the complainant, as the same was never demanded. It was submitted that relevant advertisement was published and the infrastructure development works were completed for possession and a letter dated 16.01.2010 was sent to the prospective owners of the plots. It was denied that the development works on the allotted site had not been completed and there was a shift in development linked installment plan. As per the stage linked installment plan, the correct stage had already reached and then the installment was called for vide letter dated 16.01.2010, which was finally paid by the complainant after a delay of more than 2 months i.e. 20.3.2010. Accordingly, a statement dated 28.4.2010 was issued to him demanding Rs.37,520/- as interest on delayed payment. It was asserted that as a special case, an amount of Rs.12,000/- (as against interest charges for delayed payment of Rs.37,520/-) were settled in his favour and the balance amount of Rs.25,520/- was waived off, keeping the complainant’s interest in mind. It was submitted that all development works in the said plots were to be completed by March 2010 and it was only after the entire amount payable by the customers was paid that they were entitled to take over the physical possession of their allotted plots. It was averred that all development works and approvals facilitating construction and habitation were granted by the competent authority. It was submitted that the complainant did not come forward to take possession of the plot, though the OP was/is open and willing to register the plot in his name immediately. It was submitted that the delay was on the part of State Government, which did not accord facilities at the right time. Remaining averments were denied, being wrong. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint.

4.                     Parties led evidence in support of their contentions. 

5.                     After hearing the ld. Counsel for the parties and on going through the evidence on record, the ld. District Forum allowed the complaint, as stated above.

6.                     Feeling aggrieved, the instant appeal has been filed by the appellant/OP.

7.                     The OP/appellant has filed an application for condonation of delay of 114 days in filing the appeal alleging that the entire file was misplaced in their office and could not be traced out despite making best efforts.  It was alleged that they traced out the file on 1.2.2012 and filed the appeal on 3.2.2012 immediately without any delay.  An affidavit of Harjeet Sandhu, authorized representative of the OP/appellant has been produced to support this contention.

8.                     We have heard the arguments of the ld. Counsel for the appellant as to whether the delay should be condoned and the appeal should be admitted for regular hearing or not. 

9.                     A perusal of the application for condonation of delay and the affidavit in support thereof shows that no date has been mentioned by the appellant as to when and at whose level the file was misplaced and what efforts from day to day were made to trace it out.   It was necessary for the OP/appellant to elaborate the steps taken by it and the man power employed in tracing out the said file.   A daily or weekly report as to how many files or what record was examined by which employee of its office each day should have been produced, but the said information is missing from the application.  The very fact that a file is misplaced in the office shows the gross negligence on the part of the OP and its employees.  The contention that the said file could not be traced out for 114 days further compounds the inefficiency and negligence of its employees.  Needless to mention that the OP were to explain each days delay, meaning thereby that the efforts made by it everyday in tracing the file, which has not been proved in the present case.  Otherwise also, we cannot believe that the OP/appellant would take 114 days in tracing out a file which, according to it, was ultimately found lying in its own office.  We are aware of the fact that a liberal approach should be taken in case of condonation of delay on the assumption that the appellant does not stand to benefit by lodging an appeal late,  however, where there is inordinate and unexplained delay, and a right has accrued to the complainant/respondent due to the order having become final, it is not necessary that the application for condonation of delay should be allowed as a matter of right.  The proof of sufficient cause is a discretionary jurisdiction vested in the Court and if sufficient cause is not proved, nothing further has to be done and the application for condonation of delay has to be dismissed on that ground alone.  On the other hand, if sufficient cause is shown, then the Court has to enquire whether in its discretion it should condone the delay and in order to decide the same all relevant facts have to be considered, as held in the case Ram Lal and Ors. Vs. Rewa Coalfields Ltd.-AIR 1962 Supreme Court 361.  A perusal of the application and the affidavit, as referred to above, show that the OP/appellant has been grossly negligent in maintaining the files in their office and also in tracing out the same so that the appeal is filed promptly.  We, therefore, do not find any merit in the application for condonation of delay and the same is accordingly dismissed.  The result is that the present appeal also fails being not filed within the period of limitation.

10.                  Even on merits, the OP/appellant has no case.  The appellant had invited applications for allotment of plots in the year 2007 and on an application moved by the complainant, the plot was allotted vide allotment letter dated 12.10.2007 (Annexure C-1).  It was a development linked installment plan and the complainant was to deposit the installments from time to time.  It is an admitted case of the parties that the entire amount regarding the purchase of the said plot has since been deposited by the complainant/respondent.  His complaint, however, is that the OP/appellant has not completed the development work in accordance with the plan agreed to by them, the electric poles were not erected, the water and sewerage line had not been made operational and requisite approvals from the competent authorities had not been obtained by due dates to make the plot habitable.  These allegations were denied by the OP.  However, its own record shows that the contention of the complainant is correct.  It is not disputed that the Govt. of Punjab accorded change of land use to the OP/appellant vide letter dated 12.12.2006, copy of which has been attached by the appellant as Annexure A-6 alongwith the memorandum of appeal.  As per clause (v) of the said letter, the OP/appellant was to undertake the development work after getting the final lay out plan approved from the Competent Authority.  Annexure R-3 is the lay out plan showing that it was approved on 31.10.2007 whereas the allotment letter (Annexure C-1) had already been issued by the OP on 12.10.2007 in violation of the order.  Clause (vii) requires that the appellant would abide by the instructions issued by the Punjab Pollution Control Board vide letter No.5625 dated 5.7.2006. The appellant has not produced any document to prove if they have complied with the said requirement till date.   As per clause (viii), the appellant was to obtain the approval/NOC from the competent Authority as required by the Ministry of Environment and Forests, Government of India, which also is not proved to have been obtained.  Clause (xi) says that the promoter would not launch booking of plots and issue any advertisement in this regard until the final approval is obtained from the competent Authority.  As discussed above, the OP/appellant had launched the project in the year 2007 whereafter the complainant applied for a plot and even an allotment letter was issued to him on 12.10.2007 without obtaining any final approval from the competent Authority.  It is, therefore, clear that there were violations committed by the OP/appellant and it acted in contravention of the change of land use permission accorded to it by the Punjab Government.

11.                  The OP/appellant did not produce any evidence before the ld. District Forum to prove on which date the electric lines were laid, when the water and sewerage connections were obtained and on which date the roads were completed by them.  Alongwith the present appeal the OP/appellant has produced a letter dated 4.6.2008 (Annexure A-7) under which it was required to deposit the amounts of Rs.2.20 crore and 3.80 crore besides certain other amounts to complete the electrification works. Though these documents cannot be admitted into evidence, at this stage, yet these do not prove that the electrification of the area has been completed because no such evidence was produced to prove if the requisite amounts had been deposited by the OP/appellant with the Electricity Department.  The OP/appellant did not produce any document, obtained from the Electricity Department, to prove that the electrification of the colony has been completed.  There was, therefore, lack of electricity in the area and the contention of the complainant in this respect is correct.

12.                  As regards the water and sewerage connection, again the OP/appellant did not produce any evidence before the ld. District Forum if any such facility has been provided in the locality.  No certificate from the Water and Sewerage Authorities was produced to prove this fact.  It is, therefore, clear that these facilities/amenities have not so far been provided to the colony.  The OP/appellant adopted an unfair trade practice under which even in the absence of the facilities/amenities, which it undertook to provide by due dates as per the allotment letter (Annexure C-1), it issued a letter (Annexure C-18) offering possession of the plot to the complainant alleging that all the amenities have already been completed at the site. The contention of the complainant is that when he visited the site he found that no such amenities have been provided.  It was, therefore, a ploy adopted by the OP/appellant to hoodwink the complainant and to project that the possession has been offered within the time span promised by it.  In the absence of the basic amenities, as mentioned in the letter (Annexure C-18), and as undertaken by it through the allotment letter (Annexure C-1), the offer of possession would be meaningless and would be considered to be no offer in the eyes of law.  Even till today, the OP/appellant has not been able to show by adducing documentary evidence in that respect that the amenities mentioned in Annexure C-18 have been made available at the site. 

13.                  It was argued by the ld. Counsel for the appellant that in fact a fresh lay out plan had to be issued in view of the order (Annexure R-5) passed by the Hon’ble Punjab and Haryana High Court in CWP No.10469 of 2008.   He referred to Annexure R-6 and R-7 which are the letters issued by the Deputy Commissioner to the Chief Town Planner and the Town Planner to the Sr. Town Planner regarding the alignment of a drain/choe in this area.  In our opinion, the OP/appellant is not entitled to any benefit on account of this order.  Annexure A-6 is the letter issued by the Govt. of Punjab allowing the change of land use for establishing this township.  In clause (xx) it was provided that the OP would make provisions for the disposal of rain/storm water of the proposed colony and also of the area surrounding the above said colony.  Disregarding this requirement, the appellant did not make any provision for the drain/choe which was flowing through the area.  They rather closed the said choe to obstruct the flow of water as mentioned in the letter Annexure R-6 upon which orders were passed by the SDM, SAS Nagar and the Drainage Department to remove the said blockade.  The Chief Town Planner was directed to ensure that the said company (i.e. the OP/appellant) and other persons should not close the said drain.  Thereafter a report (Annexure R-7) was sent by the District Town Planner to the Sr. Town Planner, SAS Nagar with a copy to the Chief Town Planner, Punjab Chandigarh. In this manner, the OP/appellant was dishonest to the extent that it did not make any provision for the discharge of rain water through the existing drain/choe and rather closed it, which caused panic in the area and the villagers had to approach the Hon’ble Punjab and Haryana High Court to get the blockade of the choe removed. The OP/appellant, therefore, cannot get the benefit of its own wrongs by alleging that it had to redraw the lay out plant or to make a provision for the discharge of water.  On the other hand, the OP/appellant wrongly mentioned in preliminary objection No.4 of its reply that the Govt. of Punjab was under a liability to provide effective storm water drainage and other civic amenities within 240 days of the letter (Annexure R-1).  A perusal of  Annexure R-1 shows that the State Govt. undertook to ensure connectivity to power, roads, accessibility, communication, civic and other infrastructure upto the project only and did not allow it to block the drain.    It was for the OP/Appellant to prove by producing documentary evidence as to when they asked for the said connectivity and what conditions they were to observe to get the same.  It is also not proved if they ever asked for the said connectivity. 

14.                  In view of the above discussion, it is clear that the OP/appellant has not developed the area as promised by it through the allotment letter.  A period of about three years was over when the complainant filed the complaint. The full amount has already been deposited by it with the appellant/OP and there was, therefore, no delay on his part to make the payment.  Even in spite of that, the OP/appellant wrongly demanded the amount of Rs.37,520/- from the complainant, which was not due from him.  The deposit of the entire allotment price deprived the complainant of interest which he would have been getting if the amount was deposited with some bank or financial institution.  The ld. District Forum, therefore, rightly directed the OP/appellant to pay interest @ 12% per annum on the total amount deposited by the complainant/respondent from the respective dates of deposit till the date of handing over the actual physical possession of the allotted plot to the complainant after completion of the entire development work.  The impugned order is perfectly legal and valid and does not call for any interference.

15.                  We, therefore, do not find any merit in this appeal and the same is accordingly dismissed in limine with no order as to costs.

16.                  A sum of Rs.25,000/- was deposited by the appellant  at the time of filing this appeal. After the expiry of the period for filing the revision, the aforesaid amount of Rs.25,000/- alongwith interest, if any accrued thereon, shall be paid to the respondent/complainant, in partial satisfaction of his claim, if no stay order is received.

                    Copies of this order be sent to the parties free of charge.

Pronounced.

16 February, 2012.

[JUSTICE SHAM SUNDER]

PRESIDENT

[NEENA SANDHU]

MEMBER

[JAGROOP SINGH MAHAL]

MEMBER

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