Punjab

Patiala

CC/19/457

Jaswinder Singh - Complainant(s)

Versus

Patiala Urban Planning & Development Authority - Opp.Party(s)

Sh J.s Jinder

24 Apr 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

PATIALA.

 

                                     

Consumer Complaint No.	:	CC/ 457/2019
Date of Institution	:	18.11.2019
Date of Decision	:	24.4.2023

 

Jaswinder Singh S/o Sh.Arjan Singh r/o Q. No.46 Type-2,SLIET Longowal, District Sangrur.

 

                                                                   …………...Complainant

                                      Versus

1. Patiala Urban Planning and Development Authority (PDA) through its Estate officer, PDA Office (Patiala) PUDA Bhawan, Urban Estate, Phase-II, Patiala.
2. The Omaxe Ltd. through its Chief Managing Director, registered office Shop No.19-B, First Floor, Omaxe Celebration Mall, Sohna Road, Gurgaon, Haryana – 122001.

                                                                   …………Opposite Parties

 

Complaint under the Consumer Protection Act

 

QUORUM

                                      Hon’ble Mr.S.K.Aggarwal, President

                                      Hon’ble Mr.G.S.Nagi,Member         

 

 

PRESENT:                   Sh.J.S.Jindu, counsel for complainant.

                             Smt.Kusum Sood, counsel for OP no.1.

                             Sh.S.S.Sahni, counsel for OP No.2. 

                              

 

ORDER

 

1. The instant complaint is filed by Jaswinder Singh (hereinafter referred to as the complainant) against Patiala Urban Planning and Development Authority (PDA) and another (hereinafter referred to as the OP/s) under the Consumer Protection Act ( for short the Act).
2. The averments of the complainant are as follows:
3. That in pursuance of the agreement between OPs No.1&2, PDA-Omaxe invited applications for allotment of triple storey G+2 (EWS) houses in the project. Complainant submitted application for allotment of the flat of 350.30Sq.fit alongwith amount of Rs.31702/-.Application of the complainant was registered vide No.108107 dated 26.5.2010.Flat was to be allotted by draw. The date of draw was fixed for 28.7.2010. Draw was held and complainant got flat No.GF-1. It was also intimated by OP No.1 vide letter memo No.PDA-M.A.-Patiala-2010/1522 dated 15.9.2010 to the complainant that in the draw held on 28.7.2010, he has been allotted flat in Block Lotus, name of cluster F, Flat No.GF-1 and sought certain information from the complainant which was furnished by him by filing affidavit dated 22.9.2010. The total tentative price of the EWS house was Rs.3,24,028.  An amount of Rs.31702/- was paid at the time of application. Rs.49305/- was to be paid at the time of issuance of allotment letter and the remaining amount was to be paid by way of installments. Complainant deposited all the installments as per schedule given in the allotment letter.
4. After deposit of total amount, possession of the flat was to be given within three years from the date of allotment as per terms of brochure and allotment letter. Allotment letter was issued to the complainant vide memo no.2832 dated 28.12.2010.Possession of the flat was required to be given upto 28.12.2013 but the same has not been given after lapse of near about 6 years .
5. It is surprise to note that instead of giving possession of the flat, OPs wrote letter memo No.PDA-M.A.-Patiala-2014/17042 dated 19.8.2014 vide which complainant was asked to deposit more amount of Rs.30,250/-in lump sum or in installments because of enhancement of compensation. Complainant deposited this amount in installments. Thereafter also OP again made a demand of Rs.48943/- vide letter memo No.PDA/PTA/2019-729 dated 24.6.2019 as recovery of additional price by giving reference of the Hon’ble Supreme Court in judgment dated 18.10.2018, which is unfair trade practice on their part. Consequently, prayer has been made for acceptance of complaint.
6. Upon notice, OPs appeared through counsel and filed written statements having contested the complaint.
7. In the written statement filed by OP No.1, it raised certain preliminary objections. On merits, averments of the complainant are stated to be matter of record. However, it is averred that OP No.1 is not involved in the development of the project or construction of the flats and the liability to construct the flat as per the stipulation has been that of OP No.2. Possession of the flats was required to be given to the allottees by OP No.2. OP No.1 authorized OP No.2 to develop the project of EWS flats. There is no deficiency of OP No.1. After denying all other averments, OP No.1 prayed for dismissal of complaint.
8. In the written statement filed by OP no.2 it also raised various preliminary objections. It is pleaded that the complainant has concealed the factum of pendency of CWP No.8100 of 2011 titled as Harbhajan Singh and Ors. Vs. State of Punjab and ors, and the  development of the entire project was stalled as Status Quo  by the Hon’ble Punjab & Haryana High Court vide its order dated 29.7.2011 and the same was vacated only upon dismissal of writ petition on, 26.9.2013. It is further pleaded that M/s Omaxe Ltd. has been in Joint Development Agreement with PDA as it was highest bidder so the development rights were allotted in favour of it. No direct payment had even been made to Omaxe by the complainants and the payments were made by complainants directly to OP No.1.Further as there was status quo order passed by the Hon’ble Punjab and Haryana High Court, hence the allotees were given rebate extension fee w. e. f. 29.7.2011 to 28.9.2013 i.e. the period of operation of status quo.
9. OP No.1 wrongly terminated JDA (Joint development agreement) vide  Memo No.3861-62 dated 20.6.2011. Said notice was duly replied by OP No.2 but termination notice was never withdrawn. After disposal of writ petition No.8100 of 2011, OP No.2 (Omaxe Ltd.) has been continuously following PDA to allow it to commence the development. However, till date PDA has not taken any decision  and still the negotiations with PDA are in progress.
10. During the pendency of another CWP, before the Hon’ble Punjab & Haryana High Court, OP No.1 further floated fresh tenders for the completion of the work for common area i.e. roads, water supply, electricity services etc. at OMAXE City. OP No.2 also participated in the said tender and same was granted to OP no.2on fresh contract and the said work is in progress.

PDA Residents Welfare Association has also preferred CWP No.14348 of 2016, and the said writ petition is pending subjudice before the Hon’ble High Court. Vide order dated 1.8.2017, the Hon’ble High Court has directed PDA to seek instruction as to whether they want to carry on development themselves or through OP NO.2(Omaxe Ltd.) or through any third party. On the adjourned date, counsel for PDA made a statement that inter-se dispute of PDA and Omaxe Ltd. is pending before Special Committee constituted for looking into such matter headed by Chief Secretary, Govt. of Punjab and on his request, the matter was adjourned and thereafter, till date no decision has been taken by the Special Committee and the said CWP is pendingbefore the Hon’ble Punjab & Haryana High Court. Thus the non development of the project is on account of the facts beyond the control of OP No.2.

On merits, it is submitted that Op No.2 is ready to do the rest of development work at the site but OP No.1 is not permitting it to carry out the same. It is submitted that 81% of the total residential area work has already been completed. It is admitted that PDA has entered into joint development agreement for development of the integrated township with Omaxe Ltd. and invited applications for allotment of triple storey G+2 houses in the project. It is submitted that complainant had paid all the stated amounts to OP No.1 who had never settled accounts with OP No.2. It is submitted that development of entire project was stalled, as Status Quo was orderedby the Hon’ble Punjab & Haryana High Court, in CWP No.8100 of 2011 on 29.7.2011. Stay was vacated only upon dismissal of writ petition on 26.9.2013. Possession could not be delivered due to force majeure conditions of stay orders and on account of termination of JDA by OP No.1. It is submitted that delay is not on the part of OP No.2. Also there is no deficiency in service on the part of OP No.2.After denying all other averments OP No.2 prayed for dismissal of complaint.

11. In evidence, ld. counsel for complainant, adduced affidavit of complainant,Ex.CA, copy of advertisement,Ex.C1, copy of allotment letter, Ex.C2, copy of acknowledgment, Ex.C3, copy of application form, Ex.C4, copy of receipt, Ex.C5, copy of general information, Ex.C6, copy of affidavit, Ex.C7, copies of receipts, Exs.C8 to C19, copies of letters, Exs.C20 to C24, copy of pay in slip, Ex.C25, copy of cheque, Ex.C26, copies of letters, Exs.C27 to C29, copy of cheque, Ex.C30, copies of letters, Exs. C31 to C34 and closed evidence.
12. Ld. counsel for OP No.1 has tendered in evidence, Ex. OPA, affidavit of Manjit Singh Cheema, Estate officer, Ex.OP1 copy of memo No.17042 dated 19.8.2014, Ex.OP2 copy of memo No.6124 dated 22.5.2017, Ex.OP3 copy of memo No.729 dated 21.6.2019, Ex.OP4 copy of memo No.2428 dated 23.12.2021 and closed evidence.
13. Ld. counsel for OP No.2 has tendered in evidence , Ex.OPB affidavit of Mandeep Singh Cheema, authorized signatory of OMAXE alongwith documents, Exs.OP5 to OP32 and closed evidence.
14. We have heard ld. counsel for the parties and have also gone through the record of the case, carefully.
15. The OPs had given a wide publicity for construction of flats for economically weaker section in their development scheme under the name of PDA Omaxe City Patiala.
16. The complainant approached to the OPs for the allotment of EWS house (economic weaker section) in PDA-OMAXE CITY and applied vide application form No.108107 for the allotment of 350.3sq ft. flat,Ex.C4 and deposited an earnest money of Rs.31,702/-, vide acknowledgment receipt, Ex.C3. Flat No.GF1 in Cluster F Block Lotus was allotted to the complainant in the draw of lots held on 28.7.2010, as is evident from allotment letter bearing memo No.2832 dated 28.12.2010,Ex.C2.     
17. The tentative price of the said flat was Rs.3,24028/- As per the said  letter an amount of Rs.49305/-was to be deposited on allotment within (60 days from the date of issue of allotment letter) with PDA-OMAXE-CIRY, Patiala. The said amount was deposited by the complainant on 17.1.2011, as per receipt, Ex.C8 with PDA, Patiala. Various other amounts were also deposited by the complainant as per the schedule given in the allotment letter. Possession of the flat was to be given within 3 years from the date of allotment, as per clause 6 of the allotment letter Ex.C2 subject to any force majeure conditions such as act of God, Fire, Floods, Explosion, War, Riots, Terrorist attacks or Sabotage. However, neither possession was given nor the amount so deposited by the complainant was refunded to him.
18. OP No.1 in its reply to the complaint has taken the preliminary objection all the development works were to be taken up by OP No.2 who was in possession of the project site and is not liable for the development of the project or construction of the flats and solely shifted the onus on OP No.2 for the delivery of the flats. However, it has not been brought on record by OP No.1 as to when the site was handed over to OP No.2 for development and execution of the project.
19. OP No.2 in its written statement has submitted that a Civil Writ Petition No.8100 of 2011 by land holders titled as Harbhajan Singh & others Vs. State of Punjab and others was filed before the Hon’ble Punjab & Haryana High Court. Following order was passed by Hon’ble High Court on 29.7.2011(Ex.OP14) in Civil Miscellaneous Application No.1312 of 2012 in the said CWP.

“Ld. counsel for respondents seek time to file replies.

Ld. counsel for the petitioners says that the land was acquired for public purposes but the same was being used for private purpose. In view of this submission we direct that status- quabe maintained and no construction be raised till further orders” .

As such all the construction activities were stopped on 29.7.2011.

20. The said order was finally vacated on 26.9.2013, vide order, Ex.OP13, as the petition was dismissed as withdrawn.
21. Ld. counsel for OP No.2 has argued that PDA Omaxe City was a joint venture of PDA, Patiala Development Authority and M/s Omaxe Ltd. The work of development and construction was allotted to OP No.2 on the basis of the highest bid having been made by OP No.2 at the time of allotment of work through Open Tender System. Ld. counsel further argued that no payment whatsoever has been paid by the complainant to OP No.2 and all the payments were made to OP NO.1.
22. Further after the disposal of CWP 8100 of 2011 on 26.9.2013 another CWP 14348 of 2016 was filed by the Welfare Society of plot holders of PDA Omaxe City before the Hon’ble High Court and the Hon’ble High Court in its interim order dated 1.8.2017( which is Ex.OP16) had held that, “Ld. counsel appearing on behalf of respondent No.1 states that they had issued a notice for termination of the Joint Development Agreement with respondent No.2-private respondent. He seeks time to take instructions as to whether respondent No.1 is agreeable to respondent No.2 carrying out the work so far as it pertains to petitioner  or whether respondent No.1  will  itself carry out the said work”.
23. OP No.2 has also placed on record order dated 25.9.2017 against the same CWP (Ex.OP22) vide which State of Punjab was impleaded as a party as disputes inter se between OPs No.1&2 has been referred to a committee headed by Chief Secretary Govt. of Punjab and same was allowed. It was also held that the dispute between the parties is no reason for the petitioners being deprived of their entitlement under the agreement entered into by their members with the respondents.
24. Further vide order dated 16.1.2018 Ex.OP23, Hon’ble High Court in its interim order had held that, “ Ld. counsel for respondent No.2 states that in terms of order dated 25.9.2017 of this Court, the Committee was to convey the decision regarding the meeting to be held between respondent No.1 and respondent No.2.The Committee has to look into the dispute between the petitioner and respondents No.1&2. It was pointed out that the said meeting was held on 1.11.2017 and no decision has been taken so far. The Special Committee is directed to take a decision within next 03 weeks and submit the report to this Court.
25. From the above, it transpires that OP No.1 had issued a notice of termination to OP No.2. The inter-say dispute between OPs No.1&2 is pending before Special Committee headed by Chief Secretary, Govt. of Punjab and no decision has been taken by the Committee till date and CWP is pending before the Hon’ble Punjab & Haryana High Court from 2016.
26. The notice of termination issued vide No.3861-62 dated 20.6.2011 is Ex.OP24, which has been issued on the ground that the development works have not been carried out by OP No.2 as per the terms and conditions of Joint Development Agreement, executed between OPs No.1&2. OP No.2 had then given different proposal to OP No.1 for revoking the said termination but the same had not materialized till date, as explained above.
27. From the above discussion, it transpires that the construction of flats, which was to be started from 30.12.2011 and was to be completed by 29.12.2014 was initially delayed due to the stay granted by the Hon’ble High Court w.e.f. 29.7.2011 to 26.9.2013. Thereafter Joint Development Agreement between OPs no.1&2 was terminated vide letter dated 20.6.2011,Ex.OP24 by OP No.1.From above it transpires that notice for termination of agreement was issued to OP No.2 by OP No.1 on 20.6.2011 well before the date of receipt of application for construction of EWS flats on 30.12.2011.Further all the payments made by the complainant had been received by OP No.1 and are lying with OP No.1.
28.  A perusal of Joint Development Agreement, indicates that the development period for the project was 48 months from the effective date of handing over of the site as per clause 2.2.1.Further in the event of any delay which was attributable to OP No.1, the same was to be extended as per clause 2.2.2. Further as per clause 3.4(f) of the agreement, which states that, “Instead of terminating this Agreement as provided in this Article 3.4, the Parties may by mutual agreement extend the time for fulfilling the Conditions Precedent and the term of this Agreement; provided that any extension of time in case of the Developer’s failure to fulfill its Condition Precedent shall  be subject to imposition of damages linked to delay on the Developer as determined by the Independent Technical cum Quality Control Consultant, unless the same has been occasioned by default or delay on part of PDA.”
29. A perusal of the termination notice, Ex.OP24 reveals that the notice for termination was of 20.6.2011. The effective date of handing over the site was 9.8.2007 and as such the notice had been prepared before the completion of 48 months i.e. 8.8.2011. Further as per the said notice 80.61% of the development works had already been completed by OP No.2 as on 30.4.2011 i.e. four months prior to completion of the period of 48 months for development and as per the report of Independent Quality Control Consultant, although there was a provision for imposition of damages linked to delay in the development of the project, yet notice of termination was issued by OPs No.1&2 in the first instance.
30. As such in view of the stay granted by the Hon’ble Punjab & Haryana High Court w.e.f. 29.7.2011 to 26.9.2013 and termination of agreement on 20.6.2011, well before the date of receipt of application on 30.12.2011 which is still continuing, OP No.2 was no way free to construct and develop the flats in question within 36 months from 30.12.2011 onwards as per the condition of the allotment letter. It is also surprising to note that although the Joint Development Agreement (JDA) was declared null and void by OP No.1 even then they continued to collect payments interms of installments of enhancement from the complainant from time to time. As such, OP No.1 is fully responsible for not making any alternative arrangements due to cancellation of Joint Development Agreement and for not developing/constructing the flats on their own or through any other agency and are fully liable for the delay caused in this regard. Thus, the argument of OP No.1 that all development/construction work was to be done by OP No.2 does not extend any help to the case of the OP.
31. OP No.1 during arguments had stated that they are ready to refund the amount deposited by the complainant after making necessary deductions as per the rules of PDA. We are of the opinion that the delay in the delivery of the possession of the flats is entirely on the part of OP No.1 and there appears to be no immediate situation which indicates that the possession of the flats will be offered in near future. The complainant has suffered harassment from the OPs due to non possession of the flats for a long period of 10 years from the date for which delivery was to be given within three years from date of allotment i.e.28.12.2010.
32. It is also not the case of the OPs that complainant was deficient and had not deposited the installments in time. A perusal of the receipts indicates that all the installments had been paid by the complainant before the due date as per the allotment letter. In fact complainant had also paid enhancement charges levied from time to time by OP No.1
33. Consequently, we partly allow the complaint and direct OP No.1 to release the deposited amount of the complainant alongwith 18% interest + 5% per annum interest for the delayed possession of the flats (which is being charged, as per the policy of OP No.1 for recovery of delayed payments) as per para No.5 of the allotment letter, till realization. OP No.1 is further directed to pay Rs.20,000/-as compensation for causing mental agony and harassment to the complainant alongwith Rs.5000/-as costs of litigation expenses. Compliance of the said order be made by OP No.1 within 30 days from the date of receipt of certified copy of this order.

The instant complaint could not be disposed of within stipulated period due to Covid protocol and for want of Quorum from long time.

85109252238716.  
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                                              G.S.Nagi                           S.K.AGGARWAL

                                              Member                          President