BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.132 of 2012

Date of Instt. 5.3.2012

Date of Decision :25.11.2014

Indu Aggarwal R/o EF 164/C, Mandi Road, Jalandhar City.

..........Complainant

Versus

1. Nitishree Infrastructure Limited, through its M.D/Chairman, B-111, Sector-5, Noida(U.P).

2. Anil Kumar Jain director Nitishree Infrastructure Limited, B-111, Sector-5, Noida(U.P).

3. Ankur Jain director Nitishree Infrastructure Limited, B-111, Sector-5, Noida(U.P).

4. Nitishree Infrastructure Limited, Shourya Greens, Surya Enclave, Amritsar Bye Pass Road, Near Trinity Collage, Jalandhar.

5. Jalandhar Development Authority, through its Manager,SCO,41 PUDA Complex, Opp.Tehsil Complex, Ladowali Road, Jalandhar.

6. Punjab State, through its secretary, Chandigarh.

7. Punjab State Power Corporation Ltd, through its Chairman, The Mall, Patiala.

.........Opposite parties

Complaint under the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Present: Sh.KAS Rana Adv., counsel for complainant.

Sh.APS Pathania Adv., counsel for OPs No.1 to 4.

Sh.AS Saini Adv., counsel for OP No.5.

Service of OPs No.6 and 7dispensed with.

Order

J.S.Bhatia (President)

1. The complainant has filed the present complaint under the Consumer Protection Act, against the opposite parties on the averments that the opposite parties No.1 to 4 had called applications for the sale and registration of residential plot scheme in proposed project at Shourya Greens, Surya Enclave, Jalandhar, in the year 2006 and the complainant had applied a residential plot of approximately 250 Sq.yd in the said area. At the time of calling of above said applications for residential plots the opposite parties No.1 to 4 claimed that they have got license from opposite party No.6 to develop the above said colony. Further the opposite parties No.1 to 4 also promised the complainant that there would be no high tension wires passed over or near the whole colony and plots carved out by the opposite parties No.1 to 4. Believing on the words of the opposite parties No.1 to 4 the complainant has applied for the same. As per allotment letter dated 27.1.2007 duly issued by opposite parties No.1 to 4 to the complainant, the total cost of the said plot bearing No.59 is Rs.12,86,250/- plus Rs.1,28,625/- and out of the said amount a sum of Rs.6,04,625/- has been paid by the complainant and the balance amount shall be paid at the time of registration of plot in favour of the complainant after completion of the development work of said area. At the time of issuing the allotment letter of the complainant the opposite parties No.1 to 4 assured the complainant that they would develop the said area very soon and the balance amount would be charged as and when the development work in the above said colony would be completed and as per time period mutually agreed by the parties after executing agreement with the complainant at the time of registration of above said plot in favour of the complainant. Further the opposite parties No.1 to 4 also assured the complainant that all the development charges including mettled roads, sewerage supply, street lightening, water supply, electricity supply and other development within the parameter of the colony shall be borne by the opposite parties No.1 to 5. Thereafter the complainant visited the opposite parties No.1 to 4 many times regarding the development work done in the above said colony and also regarding the registration of the plots in favour of the complainant, but the opposite parties No.1 to 4 delayed it on one pretext or other. It is pertinent to mention here that the opposite parties No.1 to 4 have not obtained any license from the government to develop above said colony at the time of calling application from the public for the above said area. However, the opposite parties No.1 to 4 issued demand letters dated 31.12.2011, 16.1.2012 and 3.2.2012 to the complainant while making illegal demand of Rs.3,12,500/- as a total development charges plus service tax thereon, besides balance amount from the complainant. On receiving the above said letter the complainant visited the opposite parties No. 4 and requested them not to make illegal demand of above said development charges plus service tax thereon, as the same is illegal and contrary to the allotment letter issued by opposite parties No.1 to 4. But the opposite parties No.1 to 4 refused to accede the request of the complainant and are adamant on their illegal demand. The complainant also sought enquiry from opposite party No.5 through Right to Information Act regarding the external development charge paid by the opposite parties No.1 to 4, if any and the opposite party No.5 had replied that no development charges has been charged from the opposite parties No.1 to 4. It is pertinent to mention here that the opposite parties No.1 to 4 are not liable to charge any development charges from the complainant, if the opposite parties No.1 to 4 have not paid any development charges to any authority. Thus the demand for making development charges of Rs.3,12,500/- from the complainant is illegal and is not binding upon the complainant. Further now the complainant has found out that high tension wires are passing on the road touching the boundary of the above said plot of the complainant. Besides these poles containing high tension wires are embedded in the main roads of the colony, thereby threatening the lives of the complainant and other allottees besides depreciating the value of the plots. It is pertinent to mention here that the opposite parties No.1 to 4 in reply to letter dated 9.1.2012 has admitted that they would supply the electricity to the customer within period of 2 years once the opposite party No.7 would sanction the electric connection to the opposite parties No.1 to 4 for their distribution of their consumers, contrary to their undertaking to opposite party No.5 that they would complete all the development in the above said colony upto 22.11.2012, and also to their reply to the letter of complainant dated 20.1.2012. Further the opposite parties No.1 to 4 have also kept the complainant and other subscriber of plots of above said colony in dark at the time of calling of application for the sale of plots in the above said colony that they have obtained no license from Government regarding the carving of colony in the above said area. However, the opposite parties claim to have obtained license from the government in the year December 2011. The complainant is ready to pay the balance amount of the above said plot to the opposite parties No.1 to 4, if the opposite parties No.1 to 4 would complete all the development under the development scheme of the colony and removes the poles containing high tension wires in the above said colony but not illegal demand of development charges plus service tax from the complainant. Thus the opposite parties have committed unfair trade practice upon the complainant and also there is deficiency in service on the part of opposite parties. Now the opposite parties No.1 to 4 with malafide intention issued demand letters dated 31.12.2011, 16.1.2012 and 3.2.2012 to the complainant thereby demanding illegal development charges of Rs.3,12,500/- plus service tax of Rs.32,187.50/- within 15 days from the date of demand letter failing which the opposite parties No.1 to 4 threatened to cancel the booking of the complainant after deducting 25% of the total amount and also threatened to charge penal interest @ 24% per annum from the complainant, which is illegal and contrary to the law. On such like averments, the complainant has prayed for restraining the opposite parties from claiming external development charges plus service tax thereon from him and for further directing the opposite parties to complete whole development work in the above said area before demanding the balance amount. She has also prayed for setting aside the demand of external development charges of Rs.3,12,500/- and service tax thereon. The complainant has also prayed for directing the opposite parties to remove the pole containing high tension wires in the above said area before demanding the balance amount. She has further claimed Rs.5,00,000/- as damages and litigation expenses.

2. Upon notice, opposite parties No.1 to 4 appeared and filed their written reply. In their joint written reply, opposite parties No.1 to 4 raised preliminary objections regarding maintainability, suppression of material facts, want of cause of action etc. They pleaded that earlier the complainant approached the opposite parties for getting one plot in Shourya Greens in the year 2006 and accordingly one plot No.59 was alloted to her. Complainant has deposited the part payments thereafter. Earlier also the opposite parties applied for the license with the government authority(PUDA). The development authority took too much time to grant the license to the opposite parties. In the meantime, the development authorities demanded extra development charges from the opposite parties and the opposite parties are bound to pay the same to the development authorities. Many demand letters were issued to the complainant vide which the opposite parties claimed and demanded the extra development charges from the complainant. Till today the complainant has paid part payment only and has failed to discharge the liability in time. When the complainant has failed to discharge the liability, the opposite parties have already cancelled the allotment vide letter dated 21.2.2012. Hence, this complaint is not maintainable. They have further pleaded that the answering opposite parties are developing the area. It is incorrect that any balance amount is to be given by the complainant to the opposite parties on the development of the colony. It is incorrect that it was stated that all the development charges are to be borne by the opposite parties. The development authority has charged the charges and the opposite parties have got right to recover the same from the complainant. Moreover, complainant has herself committed wrong. The allotment has already been cancelled. The license was applied. The development authorities have raised the demands from the opposite parties. The opposite parties are entitled to recover this amount from the complainant. The letters were issued but the complainant has failed to pay balance amount and development charges. They denied other material averments of the complaint.

3. Sh.A.S.Saini Adv., has appeared on behalf of opposite party No.5 and made a statement that opposite party No.5 does not want to file written reply.

4. Presence of opposite parties No.6 and 7 was dispensed with.

5. In support of his complaint, complainant has tendered into evidence affidavit Ex.CA along with copies of documents Ex. C1 to C11 and closed evidence.

6. On the other hand, learned counsel for opposite parties No.1 to 4 has tendered affidavit Ex.OP/A alongwith copies of documents Ex.OP1 to Ex.OP13, Ex.OPA-1 to Ex.OPA-5and closed evidence.

7. We have carefully gone through the record and further gone through written arguments of learned counsel for complainant and have also heard learned counsel for the opposite parties.

8. The first main dispute between the parties is regarding external development charges of Rs.3,12,500/- plus service tax thereon claimed by the opposite parties No.1 to 4 from the complainant. According to the complainant opposite parties No.1 to 4 have not paid external development charges to opposite party No.5 so far and as such they have no right to claim the same from the complainant. On the other hand, learned counsel for the opposite parties No.1 to 4 contended that as per letter dated 28.7.2008 Ex.OP-4 the opposite party No.5 has demanded EDC i.e external development charges @ Rs.26.78 Lacs per acre total amounting to Rs.1,98,70,780/- to be paid in six aquated half yearly installments and out of the above said amount, the opposite parties No.1 to 4 have paid substantial amount as is evident from Ex.OP11. He contended that the complainant is bound to pay the external development charges demanded by opposite party No.5. Counsel for complainant contended that at the time of allotment, there was no condition regarding the payment of external development charges and as such the complainant is not liable to pay the same. We have carefully considered the contentions of both the parties. According to the own version of the complainant, the plot was allotted to her vide allotment letter dated 9.5.2007. On the other hand, external development charges @ Rs.26.78 Lacs per acre have been demanded by opposite party No.5 from opposite parties No.1 to 4 vide letter dated 28.7.2008 Ex.OP4 i.e subsequent to the date of allotment of the plot to the complainant. The opposite parties No.1 to 4 are bound to pay the external development charges as demanded by opposite party No.5 and as such the controversy regarding the payment of the same by opposite parties No.1 to 4 so far is not very much material. The external development charges vide letter dated 28.7.2008 Ex.OP4 were demanded by opposite party No.5 subsequent to the date of the allotment of the plot to the complainant. The matter would have been different if external development charges have been demanded by opposite party No.5 from opposite parties No.1 to 4 before the date of allotment and in that case the complainant could have said that while fixing the price of the plot the opposite parties No.1 to 4 have taken into consideration external development charges. In the present case, external development charges were imposed by opposite party No.5 subsequent to the date of the allotment of the plot to the complainant. Where any statutory authority has imposed external development charges, the opposite parties No.1 to 4 are bound to pay the same and in such circumstances the complainant and other allottees are also liable to pay the same on pro-rata basis. So in our opinion, the complainant is liable to pay external development charges demanded by opposite parties No.1 to 4.

9. Vide order dated 5.3.2012, the opposite parties were restrained from cancelling the plot of the complainant. The complainant has prayed for directing the opposite parties to complete the whole development work in the area before demanding the balance amount. In para 3 of the written reply on merit, the opposite parties No.1 to 4 have pleaded that they are developing the area meaning thereby that they have not fully develop the area so far. In such type of cases we feel that no time frame should be fixed by the forum to complete the development work in the area of scheme as it depends upon various factors. However, in case the opposite parties No.1 to 4 falls to develop the area within reasonable period or the period if any mentioned in the agreement which might have been executed by the parties then complainant can always approach the forum for compensation alleging deficiency in service on this score. The complainant has claimed Rs.5,00,000/- as damages. However in the present case the opposite parties No.1 to 4 are also at fault. The plot was alloted to the complainant in the year 2007. The opposite parties No.1 to 4 have themselves produced copy of license dated 23.12.2011 Ex.OP3 meaning thereby that the they were granted license on the above said date under the Punjab Apartment and Property Regulation Act, 1995 and compounding policy issued by the Government of Punjab. The floating of the scheme and carving the plots/colony without obtaining license under the above said Act 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 No.1 to 4 were issued license on 23.12.2011 i.e after more than 4 years from the date of allotment letter. Ex.OPA-5 is letter dated 13.12.2011 regarding payment of the compounding fee vide demand draft No.125617 dated 9.12.2011. The opposite parties No.1 to 4 have also not obtained completion certificate till date. No completion certificate has been placed on record. So opposite parties No.1 to 4 have failed to develop the project within reasonable time from date of allotment of the plot to the complaint for one reason or another. Since, the opposite parties No.1 to 4 are also at fault, as such it shall not be entitled to demand any interest or penal interest from the complainant. The complainant was not supposed to pay the remaining payment and stuck his money in illegal colony as opposite parties No.1 to 4 obtained license only on 23.12.2011 and that too subject to certain conditions. The carving out colony without obtaining license by the builder constitute deficiency in service. So the complainant is also entitled to the damages as his money remained stuck in the project for long time due to non obtaining of license by the opposite parties No.1 to 4 and developing the same in time. In the present complaint, the complainant has claimed Rs.5,00,000/- as damages. However in our opinion Rs.50,000/- as damages are quite reasonable. Moreover in similar complaint No.106 of 2012, the son of the complainant has claimed Rs.50,000/- as damages which is being also disposed off today.

10. In the present case, the complainant has moved an application for appointment of local commissioner alleging that plot of the complainant is situated on the 45' wide road. It is alleged that as per rule and regulation passed while granting license to the opposite parties, sewerage connection has not been provided by them. Further sewerage connection has not been connected with the sewerage of Municipal Corporation. The opposite parties have also not constructed park No.2 as reflected in letter dated 4.8.2014. The actual and factual position of the above said locality can be ascertained by appointing local commissioner.

11. We have already observed above that opposite parties No.1 to 4 have pleaded that they are developing the area meaning thereby that they have not fully develop the area so far. So when the area has not been developed fully so far no useful purpose shall be served by appointing local commissioner.

12. The complainant has also prayed for directing the opposite parties to remove the poles containing high tension wires in the above said area before demanding balance amount. Complainant has himself produced letter Ex.C-11 addressed to opposite party No.5 regarding final NOC by the Power Corporation to M/s Shourya Towers Pvt.Ltd for residential colony namely Shourya Greens at Jalandhar. In this letter, it is mentioned as under:-

" 2. Poles for laying HT/LT lines in the proposed colony shall be so erected that no pole comes in front of the entrance of any residence or causes any hindrance to the resident in easy & free entrance to the house. As far as possible, the poles may be erected at the junction of two plots. In case any pole comes in front of the entrance/main gate of the house, the same shall be got shifted by the promoter at his own cost. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

9. For erection of HT/LT lines & distribution transformers, the instructions of PSEB Manual on Standard Instructions on Distribution System & Construction Practice must strictly be followed".

13. So in this view of the matter, there is no need of any directions regarding HT/LT lines or poles in the colony.

14. In view of above discussion, the present complaint is disposed off and it is held that opposite parties No.1 to 4 are entitled to external development charges and further the complainant is entitled to Rs.50,000/- as damages as already discussed above from opposite parties No.1 to 4. The opposite parties No.1 to 4 are directed to complete the development work in the scheme area as earlier as possible. However in case of undue delay in developing the scheme area, the complainant shall be at liberty to file complaint claiming damages on this score. In the circumstances of the case, the parties are left to be bear on their costs. Copies of the order be sent to the parties free of costs under the rules. File be consigned to the record room

Dated Jyotsna Thatai Jaspal Singh Bhatia

25.11.2014 Member President