Order by:
Sh.Amrinder Singh Sidhu, President
1. This Consumer Complaint has been received by transfer vide order dated 26.11.2021 of Hon’ble President, State Consumer Disputes Redressal Commission, Punjab at Chandigarh under section 48 of CPA Act, vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2021 from District Consumer Commission, Ludhiana to District Consumer Commission, Moga to decide the same in Camp Court at Ludhiana and said order was ordered to be affected from 14th March, 2022.
2. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that Rajeev Kumar son of Ram Parkash applied for a residential plot measuring 200 square yards vide application No.8755 and deposited Rs.1,70,000/- as application money being 10% of the tentative costs of the plot and in the draw held on 10.01.2013, Rajeev Kumar was allotted a plot and a letter of intent dated 07.03.2013 was issued to him. Opposite Parties further asked to Rajeev Kumar to deposit 15% of the tentative costs of the plot within 30 days and accordingly, he deposited Rs.2,55,000/- vide DD No.000136 dated 04.04.3013. In fact, said payment of Rs.2,55,000/- was made by the complainant, but the receipt was issued in the name of Rajeev Kumar. Subsequently, said plot was purchased by the complainant from Rajeev Kumar in terms and conditions of the letter of intent dated 07.03.2013 and accordingly, the payment was made by the complainant to said Rajeev Kumar. Thereafter, the complainant applied for transfer of letter of intent in his name with the Opposite Parties and deposited a sum of Rs.42,500/-plus Rs.2500/- on 29.05.2013 as transfer fee and after completing the formalities, the Opposite Parties issued letter dated 14.06.2013 regarding transfer of letter of intent in favour of the complainant. The Opposite Parties were to issue allotment letter within one month after deposit of 15% of the value of the plot amounting to Rs.2,55,000/-. As Rajeev Kumar had deposited Rs.4,25,000/- by 05.04.2013, so the Opposite Parties were required to issue allotment letter within one month from 05.04.2013, but they failed to issue the allotment letter. After long persuasion, the Opposite Parties issued offer for allotment letter dated 04.01.2015. As per clause 4 of the allotment letter dated 04.01.2015, the Opposite Parties were required to hand over the possession of the plot within 90 days of the issuance of the allotment letter i.e. upto 04.04.2015, however, the Opposite Parties failed because the Opposite Parties could not develop the area and were not in a position to hand over the physical possession of the plot to the complainant. As per the offer of allotment, the remaining payment of Rs.16,19,250/- was to be made by the complainant by way of installments and the first installment of Rs.3,65,500/- was payable on 10.01.2017 and for this, the complainant visited the site many times and lastly on 12.10.2017 and found that no development had been started by the Opposite Parties at the site. On enquiry, it was found that due to some technical hitch and unforeseen reasons, the Opposite Parties were not in a position to develop the area and to hand over the possession of the plot. Since, the Opposite Parties have failed to develop the site and hand over the possession of the plot to the complainant, he is entitled to the refund of the amount deposited with the Opposite Parties. As such, there is deficiency in service on the part of the Opposite Parties. Vide instant complaint, the complainant has sought the following reliefs.
a) The Opposite Parties may be directed to refund the amount of Rs.4,70,000/- alongwith interest @ 12% per annum and also to pay Rs.One lakh on account of compensation due to mental tension and harassment caused by the complainant and Rs.33,000/- as litigation expenses.
3. Opposite Parties appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this District Consumer Commission. It is admitted that the complainant purchased the plot in question from Rajeev Kumar who was a successful allottee in the draw and paid Rs.1,70,000/- and Rs.2,55,000/- to the Opposite Parties. It has also been admitted that the letter of intent was transferred in the name of the complainant vide letter no. 3510 dated 14.06.2013. As per clause 12 of letter of intent, the possession of the plot was to be handed over after completion of the development work at the site or 18 months from the date of issuance of allotment letter whichever was earlier. The allotment letter bearing No. 14 dated 04.01.2016 was issued in the name of the complainant and as per allotment letter, the possession was to be delivered within 90 days of the issuance of allotment letter . Moreover, if the possession not taken by the allottee within stipulated period, it shall be deemed to have been handed over on the expiry of such period. Accordingly, the development work of the project was completed on 30.09.2015 as per report of Divisional Engineer (Civil), (Public Health Electrical), GLADA, the allottee was to complete the construction within the stipulated period of 3 years from the date of allotment after getting the plan sanctioned from the competent authority. However, the complainant failed to get the site plan sanctioned within the stipulated period and also did not raise any construction. The complainant did not even apply for getting electricity, water sewerage connections which amounts to non compliance of the terms and conditions of the allotment letter. The electricity work at the spot has already been completed and all the ground work such as installation of the transformer, G-switch energy meter, feeder penals with bus bar and MCB and iron glad switches have been installed by the GLADA. Further the electrical work for the issuance of electric connections to the allottees was handed over to the Electricity Department vide memo No. 445 dated 29.03.2016. The Civil and Public Health works at the spot were commenced on 04.03.2014 and completed on 30.09.2015. In this manner, all the civil, health and sanitation work has been completed at the spot. Since the complainant himself has failed to comply with the payment schedule and has not deposited the instalments in time, he is not entitled to any relief claimed in the complaint. Moreover, an amount of Rs.10,10,598/- as on 19.03.2018 was payable by the complainant on account of instalments, interest and penal interest and hence, there is no deficiency in service on the part of the Opposite Parties. Other averments made in the complaint have been denied being wrong and denied and prayer for dismissal of the complaint has also been made.
4. In order to prove his case, the complainant has tendered into evidence her affidavit Ex.CA alongwith copies of documents Ex.C1 to Ex.C9 and closed the evidence on behalf of the complainant.
5. On the other hand, to rebut the evidence of the complainant, Opposite Parties also tendered into evidence the affidavit of Sh.Akasdeep Doomra Ex.RA alongwith copies of documents Ex.R1 to R6, affidavit of Gulshan Kumar Ex.RB alongwith copies of documents Ex.R7 to Ex.R39 and closed the evidence.
6. We have heard the ld.counsel for the parties, perused the written arguments of the complainant and also gone through the documents placed on record.
7. Ld.counsel for the Complainant has mainly reiterated the facts as narrated in the complaint and contended that in para No.4 of the preliminary objections the Opposite Parties has specifically mentioned the electricity work at the spot has already been completed and all the ground work such as installation of the transformer, G-switch energy meter, feeder penals with bus bar and MCB and iron glad switches have been installed by the GLADA. Further the electrical work for the issuance of electric connections to the allottees was handed over to the Electricity Department vide memo No. 445 dated 29.03.2016. The Civil and Public Health works at the spot were commenced on 04.03.2014 and completed on 30.09.2015. In this manner, all the civil, health and sanitation work has been completed at the spot. Since the complainant himself has failed to comply with the payment schedule and has not deposited the instalments in time, he is not entitled to any relief claimed in the complaint. On the other hand, in para No. 10 and 12 of reply, the Opposite Parties have stated that Opposite Parties authority informed the complainant that due to some technical hitch, they are not in a position to develop the area. On the other hand, the only plea of the Opposite Parties is that since the complainant himself has failed to comply with the payment schedule and has not deposited the instalments in time, he is not entitled to any relief claimed in the complaint.
8. We have gone through the rival contentions of the parties. The present case is covered under the judgements passed by Hon’ble State Consumer Disputes Redressal Commission, Punjab at Chandigarh in the said same project namely at Sugar Mills, Jagraon, District Ludhiana. Hon’ble State Consumer Disputes Redressal Commission, Punjab at Chandigarh in CC No. 878 of 2017 decided on 13.02.2018 in case Rajwinder Kaur Vs. PUDA has held that:-
“The information under RTI was obtained from Divisional Engineer (C-II) GLADA Ludhiana to the effect that till 05.09.2017, the National Highway has not given any approval to OPs for 100'-00' wide approach road, to be constructed and connected to the National Highway. This document has shown that till 05.09.2017 the National Highway Authority has not accorded any approval to connect this project with the National Highway to OPs. One K.L Sachdeva also obtained information under RTI from Divisional Engineer GLADA Ludhiana, vide Ex.C-4 on 06.06.2017 to the effect that there was no proposal as yet till 17.05.2017 for raising any boundary wall nor OPs have issued any such instructions in this regard. Another information obtained by K.L.Sachdeva from OPs on 05.06.2017 is Ex.C-5 to the effect that no sewerage connection has been allotted by the authority to Sugar Mill site Jagroan in the project, to be developed. This document Ex.C-5 has established that till 05.06.2017, no sewerage connection was granted to OPs in SUGAR Mill site project. The approach road connected with the main road is essential for development of the project.
OPs have not done the sewerage work in the project nor any approval has been received by OPs from the National Highway Authority for constructing road connecting approach with the main National Highway. Even boundary wall has not been raised around the project, as proved on the record.”
Further, Hon’ble State Consumer Disputes Redressal Commission, Punjab at Chandigarh in First Appeal No. 760 of 2017 decided on 22.09.2017 decided on 06.06.2018 in case PUDA Vs. Mrs.Anupama Saluja in the same project has held so. However, the grounds of completion of work as on 30.09.2015 as taken by the Opposite Parties in its reply under para No.4 of its preliminary objections was also considered by Hon’ble State Consumer Disputes Redressal Commission, Punjab at Chandigarh in CC/811/2019 decided on 11.06.2020 in para No.8 of its order and held as under:-
Hon’ble State Consumer Disputes Redressal Commission, Punjab at Chandigarh vide para No.13 & 14, 14, `6, 17, 18 in its order also held as under:-
Para No. 13: It also needs to be mentioned that Completion/Occupation Certificate is required to be obtained by every promoter, before delivery of possession of the plot/flat/unit etc.
Para No.14: Opposite parties-GMADA squarely fall within the definition of "Promoter", as defined in Section 2 (y) of PAPRA and discussed above. It was also held in that case that the opposite parties, being promoter, were duty bound to obtain Completion/Occupation Certificate from the competent authority before delivering possession of the particular property to the allottee. Similar proposition of law was laid down by this Commission in Consumer Complaint No.420 of 2018 (Usha Rani v. Punjab Urban Planning & Development Authority & Anr.) decided, vide order dated 11.09.2018.
9. In this complaint, the Opposite Parties have relied upon one partial occupation certificate dated 28.02.2020 of one building Surinder Kaur (Ex.R9) whereas the order of Hon’ble State Consumer Disputes Redressal Commission, Punjab at Chandigarh dated 19.06.2020 has been relied, but the same is not placed on record. Present complaint has been filed on 31.12.2017 before filing the complaint No.811 of 2019 before Hon’ble State Consumer Disputes Redressal Commission, Punjab at Chandigarh. Photographs Ex.R10 to Ex.R36 are without date, month and year and without mentioning their plot number as well as occupation certificate whereas against the contents of para No.12, there is an admission of the Opposite Parties for not developing the are due to some technical reasons. Moreover, Hon’ble National Commission in Revision Petition No. 1231 of 2016 has held in para No. 13 that after the sufficient gap after the due date of possession, the complainant can not be compelled to take possession as per the judgement of Hon’ble Supreme Court of India in Civil Appeal No.12238 of 2018.
10. In view of the aforesaid facts and circumstances of the case, since the Opposite Parties have failed to comply with the directions, as mentioned above, they are directed to refund the entire amount deposited against the plot in question i.e. Rs.4,70,000/- (Rupees four lakh seventy thousands only) to the complainant alongwith interest @ 8% per annum from the date of filing the present complaint i.e. 31.12.2017 till its actual realization. Opposite Parties are also directed to pay the lump sum compensation to the complainant for causing him mental tension and harassment to the tune of Rs.10,000/- (Ten thousands only). The compliance of this order be made by Opposite Parties within 45 days from the date of receipt of copy of this order, failing which the complainant shall be at liberty to get the order enforced in accordance with law. Copies of the order be furnished to the parties free of cost by District Consumer Commission, Ludhiana and thereafter, the file be consigned to record room after compliance.
11. Reason for delay in deciding the complaint.
This Consumer Complaint was originally filed at District Consumer Disputes Redressal Forum (Now Commission) at Ludhiana and it keep pending over there until Hon’ble State Consumer Disputes Redressal Commission, Punjab vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 has transferred the instant Consumer Complaint alongwith Other Complaints to District Consumer Commission, Moga with directions to work on this file onward from 14th March, 2022 and accordingly District Consumer Commission, Moga has decided the present complaint today i.e.23.05.2022 at Camp Court, Ludhiana, as early as possible as it could decide the same
Announced in Open Commission at Camp Court, Ludhiana.
