Punjab

Patiala

CC/19/178

Rita Kinger - Complainant(s)

Versus

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

Sh Pawandeep Singh

15 Feb 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

PATIALA.

 

Consumer Complaint No.	:	CC/ 178/2019
Date of Institution	:	22.5.2019
Date of Decision	:	15.2.2023

 

Smt.Rita Kinger W/o Sh.Vinod Kumar R/o # 58, Street No.23, Tripuri, Patiala.

 

                                                                   …………...Complainant

                                      Versus

1. Patiala Urban Planning & Development Authority.(PDA) At: PUDA Bhawan, Urban Estate, Phase  II, Patiala.

 

2. M/s Omaxe Ltd., AT: 7, L S C, Kalkaji, New Delhi-110019 also AT: SCO-143 & 144, First Floor, Sector-8C, Madhya Marg, Chandigarh.

                                                                   …………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.Pawandeep Singh, 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 Smt.Rita Kinger W/o Sh.Vinod Kumar       (hereinafter referred to as the complainant) against Patiala Urban Planning & Development Authority.(PDA) and another (hereinafter referred to as the OP/s) under the Consumer Protection Act ( for short the Act).
2. The averments put forth by the complainant are as follows:

That the complainant purchased an application form/prospectus for Rs.50/- from OP No.1 having mentioned therein that OPs No.1&2 had entered into a Joint Agreement for the development of “PDA OMAXE CITY, Patiala. The complainant submitted duly filled application form/prospectus No.105960 alongwith 10% earnest money of Rs.31702/- by way of DD No.049476 dated 25.5.2010, in favour of Escrow Account PDA-OMAXE City, Patiala , as the booking were open from 27.4.2010 to 26.5.2010 . As such her name was included in the draw of lots and was declared as successful in the draw of lot held on 28.7.2010.The complainant was allotted flat No.FF2 in cluster B, block “LOTUS” for Rs.3,17,022.00 vide letter bearing memo No.PDA-M.A-PTA-2010/757 dated 13.9.2010 and was directed to furnish an affidavit by OP No.1.Thereafter allotment letter bearing No.3154 was issued to complainant by OP No.1.Under the terms and condition of Mode of Payment, complainant deposited the amount of Rs.47533.05/- vide DD No.916902 dated 19.2.20211 on 21.2.2011 .Remaining 75% of the amount i.e. Rs.2,37,766,05/- was also paid by the complainant vide DD No.775501 dated 19.2.2011. Thus the entire amount was paid by the complainant to OP No.1.

3. In the year, 2014, OP No.1 demanded extra amount of Rs.30250/- from the complainant on the pretext of enhancement price of the flat, which was paid by the complainant through DD No.939975 dated 15.9.2014 drawn on UCO Bank. Again in the year 2017 on 9.5.2017, OP No.1 demanded additional charges of Rs.33880/- for enhancement price of the flat, which was also deposited by the complainant through DD No.169677 dated 26.5.2017. The OPs failed to give the possession of flat within 3 years from the date of allotment to the complainant. Legal notices were also sent to the OPs on 1.5.2019 requesting them to make the compensation to complainant but the OPs did not respond to the same. Consequently, prayer has been made for acceptance of the complaint.
4. Upon notice, OPs appeared and filed their respective written statements.
5. In the written statement filed by OP No.1, it took various preliminary objections. It is pleaded that OP No.1 had only 15% share of the gross revenue less service tax in the project whereas M/s Omaxe had a shore of 85% in the same.All the development of the project was to be undertaken by M/s Omaxe and not by OP No.1.The possession of the flats  was also to be handed over by M/s Omaxe only because as per the Joint Development Agreement, the possession of the land was handed over to M/s Omaxe.As per the terms and conditions of the agreement between OP No.1 and M/s Omaxe, M/s Omaxe was to get the flats constructed but it failed to do so.In this regard OP No.1 has sought explanation from  M/s Omaxe(OP No.2). So much so OP No.1 has even initiated the process of dissolving the agreement with OP No.2.The OP No.1 has in no way utilized the amount of the complainant. OP No.1 has received only 15% of the total amount of the consideration of the flat whereas 85% of the same has been received by M/s Omaxe Ltd.(OP No.2).Thus OP No.2 is responsible for any delay whatsoever.
6. On merits, it is alleged that OP No.1 is not involved in the development of the project or construction of the flats.After denying all other averments, OP No.1 prayed for the dismissal of the complaint.
7. In the written statement, filed by OP No.2 it also raised 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.So no direct payment has 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.
8. In the mean time PDA issued notice of termination upon Omaxe Ltd. alleging breach of certain terms and conditions of JDA. The said notice was duly replied by 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.

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.) and 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 pending for 15.10.2019 before 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 admitted that complainant purchased application form/prospectus for Rs.50/- from the office of OP No.1 wherein it was mentioned that OPs No.1&2 had entered into a Joint Agreement for the development of PDA OMAXE City, Patiala. It is also admitted that entire payment was received by OP No.1(PDA). It is submitted that the demand of enhancement price was based on the orders passed by the Hon’ble Courts at Patiala, then by Hon’ble Punjab & Haryana High Court, Chandigarh. Further the construction of EWS flats have been partially made and lateron due to status quo orders of Hon’ble High Court, the work was stalled and the OP No.2 has no intention to breach the contract. After denying all other averments OP No.2 prayed for dismissal of complaint.

9.           In support of her case, ld. counsel for the complainant has tendered in evidence Ex.CA affidavit of the complainant alongwith documents,Ex.C1 copy of application form, Ex.C2 copy of acknowledgment/receipt, Ex.C3 copy of letter dated 13.9.2010,Ex.C4 copy of affidavit submit by the complainant, Ex.C5 copy of allotment letter,Ex.C6 and Ex.C7 copies of receipts dated 21.2.2011,Ex.C8 copy of receipt dated 24.9.2014,Ex.C9 copy of letter dated 9.5.2017, Ex.C10 copy of receipt dated 31.5.2017, Ex.C11 copy of legal notice dated 30.4.2019 alongwith original postal receipts and closed the evidence.
10. In rebuttal, ld. counsel for OP No.1 has tendered in evidence Ex.OPB affidavit of Isha Singal, Estate Officer,PDA,Patiala alongwith documents, Exs.OP22 copy of notice of termination, Ex.OP23 copy of joint development agreement between the OPs and closed the evidence of OP No.1.
11. Ld. counsel for OP No.2 has tendered into evidence Ex.OPA affidavit of Shilpa Authorized Signatory of Omaxe Ltd. alongwith documents, Exs.OP1 copy of authority letter, Ex.OP2 copy of CWP No.8100/2011, Ex.OP3 copy of civil misc. No.1312/12 in CWPO No.8100 of 2011, Ex.OP4 copy of order dated 1.8.2017,Ex.OP5 copy of order dated 25.9.2017,Ex.OP6 copy of CWP No.14348 of 2016, Ex.OP7 copy of Agenda Item No.21.03,Ex.OP8 copy of application form,Ex.OP9 copy of letter dated 13.9.2010,Ex.OP10 copy of letter dated 13.9.2010,Ex.OP11 copy of allotment dated 30.12.2010,Ex.OP12 copy of allotment letter memo No.3154 dated 30.12.2011,Ex.OP13 to Ex.OP15, copies of drafts,Ex.OP16 copy of letter dated 20.8.2019,Ex.OP17, copy of reply to the notice,Ex.OP18 copy of receipt No.1134,Ex.OP19 copy of letter dated 9.5.2017,Ex.OP20 copy of letter dated 18.6.2019 and copy of notice of termination,Ex.OP21.
12. We have heard the ld. counsel for the parties and have also gone through the record of the case, carefully.
13. The OPs had give a wide publicity for construction of flats for economically weaker section in their development scheme under the name of PDA Omaxe City Patiala. The complainant purchased the application form/prospectus for the same for a consideration of Rs.50/-, which is Ex.C1.As per the said application form, bookings  were  open  from 27.4.2010 to 26.5.2010 and an amount of Rs.31702/- as token of booking amount was to be deposited as earnest money against the said flats, being 10% costs of the flat, within the prescribed period. The amount of earnest money was deposited by the complainant on 25.5.2010 vide acknowledgment receipt, Ex.C2. Flat No.FF2 in Cluster B was allotted to the complainant in the draw of lots held on 28.7.2010 , as is evident from letter bearing No.1757 dated 13.9.2010,Ex.C3, issued by Estate Officer, PDA, Patiala. After completion of various formalities, the said flat was allotted to the complainant, vide allotment letter No.3154 dated 30.12.2011, Ex.C5, which is again signed by Estate Officer, PDA, Patiala and authorized signatory of Omaxe Ltd. As per the said allotment letter an amount of Rs.47,553.05/-was to be deposited by 27.2.2011 with PDA, Patiala. The said amount was deposited by the complainant on 21.2.2011, as per receipt, Ex.C6 with PDA, Patiala. As per terms and conditions of the mode of payment, the balance amount could be deposited either in 12 quarterly installments with interest @ 12% or in lumpsum within 60 days from the date of allotment without any interest. As such, balance amount of Rs.2,37,766.05/- as lumpsum was deposited by the complainant with PDA, Patiala   on 21.2.2011 itself vide receipt No.009482 dated  21.2.2011,Ex.C7. As such full payment against the flat in question was deposited by the complainant on 21.2.2011. Possession of the flat was to be given within 3 years from the date of allotment, as per clause 6 of the allotment letter dated 30.12.2011,Ex.C5 subject to  any force majeure conditions such as act of God, Fire, Floods, Explosion, War, Riots, Terrorist attacks or Sabotage.
14. The complainant was again forced to deposit an amount of Rs.30,250/- with Estate officer, PDA, Patiala on 24.9.2014 on account of enhancement charges.The receipt in this regard is Ex.C8. As per the allotment letter dated 30.12.2011, the possession of the flat was to be given within three years i.e. upto 29.12.2014. However, no such possession was given and another notice bearing No.3686 dated 9.5.2017,Ex.C9, was issued for recovery of another amount of Rs.33880/-on account of enhancement. The said amount was again deposited by the complainant  vide receipt dated 31.5.2017,Ex.C10 in the account of PDA, Patiala. But the possession of the flat was not given despite the complainant having paid various enhanced amounts. The complainant then issued legal notice dated 30.4.2019,Ex.C11 for refund of amount deposited with the OPs alongwith interest and compensation as possession of flat was not in sight in near future. However, no fruitful purpose was served.
15. OP No.1 in its reply to the complaint has taken the preliminary objection on the ground that it had 15% share of the revenue whereas 85% share of the revenue was with OP No.2 and 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.
16. OP No.2 in its written statement has submitted that a Civil Writ Petition No.8100 of 2011 was filed before the Hon’ble Punjab & Haryana High Court. Following order was passed by Hon’ble High Court on 29.7.2011(Ex.OP3):

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- qua be maintained and no construction be raised till further orders .

As such all the construction activities were stopped on 29.7.2011.

17. The said order was finally vacated on 26.9.2013, vide order, Ex.OP2, as the petition was dismissed as withdrawn.
18. Ld. counsel for OP No.2 has argued that PDA Omaxe City has been a joint venture of PDA, Patiala Development Authority and M/s Omaxe Ltd. The work of development of the 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.
19. OP No.2 has also placed on record order dated 25.9.2017 against the same CWP (Ex.OP5) vide which State of Punjab was impleaded as a party as disputes inter se between OPs No.1&2 have 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.
20. 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, which is Ex.OP4 and the Hon’ble High Court in its interim order dated 1.8.2017 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”.
21. Further vide order dated 16.1.2018 Ex.OP6, 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.
22. 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.
23. The notice of termination issued vide No.3861-62 dated 20.6.2011 is Ex.OP21, 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.
24. 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.OP21 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.
25.  A perusal of Joint Development Agreement,Ex.OP23, indicates that the development period for the project was 48 months from the effective date of starting 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.”
26. A perusal of the termination notice, Ex.OP22 reveals that the notice for termination was of 20.6.2011 whereas the effective date of handing over the site was 9.8.2007 and as such the notice had been prepared well 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 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.
27. 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 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 extent any help to the case of the OP.
28. OP No.1 during arguments had fairly conceded 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 12 years from the date for which delivery was to be given within three years.
29. Consequently, we partly allow the complaint and direct OP No.1 to release the deposited amount of the complainant alongwith normal lending rate of interest being charged by the banks + 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. 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.
30.  The instant complaint could not be disposed of within stipulated period due to Covid protocol and for want of Quorum from long time.
85109252238716.  
85109252238717.  

                                              G.S.Nagi                           S.K.AGGARWAL

                                              Member                          President