Punjab

Bhatinda

CC/19/62

Vijay Pal Makkar - Complainant(s)

Versus

PUDA - Opp.Party(s)

T.R.Sharma

24 Nov 2021

ORDER

Final Order of DISTT.CONSUMER DISPUTES REDRESSAL FORUM, Court Room No.19, Block-C,Judicial Court Complex, BATHINDA-151001 (PUNJAB)
PUNJAB
 
Complaint Case No. CC/19/62
( Date of Filing : 19 Mar 2019 )
 
1. Vijay Pal Makkar
h.no.402,L.B.Enclave,Sector-49-A,Chandigarh
...........Complainant(s)
Versus
1. PUDA
Bathinda.
............Opp.Party(s)
 
BEFORE: 
 HON'BLE MR. Kanwar Sandeep Singh PRESIDENT
 HON'BLE MR. Shivdev Singh MEMBER
 HON'BLE MRS. Paramjeet Kaur MEMBER
 
PRESENT:T.R.Sharma, Advocate for the Complainant 1
 
Dated : 24 Nov 2021
Final Order / Judgement

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA

 

C.C. No. 62 of 19-03-2019

Decided on : 24-11-2021

 

Vijay Pal Makkar S/o Sh. Lekh Raj Makkar,aged about 53 years R/o H. No. 402 L.B. Enclave, Sector 49-A, Chandigarh.

…...Complainant

Versus

 

The Estate Officer, Bathinda Development Authority (BDA), PUDA Complex, Bhagu Road, Bathinda.

.......Opposite party

     

    Complaint under Section 12 of the Consumer Protection Act, 1986.

     

    Quorum :

    Kanwar Sandeep Singh, President

    Sh. Shivdev Singh, Member.

    Smt. Paramjeet Kaur, Member

     

    Present :

     

    For the complainant : Sh. T.R. Sharma, Advocate

    For the opposite party : Sh. N P Singh, Advocate

     

    O R D E R

     

    Kanwar Sandeep Singh, President

     

    1. The complainant Vijay Pal Makkar (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986 (Now C.P. Act, 2019, here-in after referred to as 'Act') before this Forum (Now Commission) against Bathinda Development Authority (BDA) (here-in-after referred to as opposite party).

    2. Briefly stated, the case of the complainant is that the opposite party announced new residential colony, consisting of 976 freehold plots measuring 100 sq.yds to 500 sq.yds, situated at PUDA Enclave (Sugar Mill), Budhlada, District Mansa (Punjab) and represented to provide beautifully landscaped parks, wide roads, security, perimeter, shops, school, own sewerage, treatment plant, water storage, pumping facilities etc. Being attracted by the facilities to be provided in their scheme, the complainant applied for allotment of residential plot measuring 256.67 Sq. yards in category General at Sugar Mill Budhlada vide application No. 3668. He was successful in the draw of lots. The opposite party issued letter of intent for the allotment of residential plot measuring 256.67 Sq. yards in category general vide memo No.PUDA-EO/2013/1809 dated 26/02/2013. As per term and condition of the aforesaid letter dated 26.02.2013, the complainant deposited 15% amount i.e. 2,31,003/- vide draft No. 580550 dated 23/03/2013 to complete 25% price of the plot. As per terms and conditions of the Brochure and Letter of intent, the possession of the plot was to be delivered after completion of development works at site or within 18 months from the date of issuance of the Allotment Letter, whichever was earlier. However, the Allotment Letter dated 06.12.2016 was issued after delays of more than 3 years from the issuance of the letter of intent, whereby plot No. 858 PF measuring 256.67 sq.yds was allotted to the complainant. The complainant received re-allotment letter dated 08.02.2018, whereby he was informed that earlier plot No. 858 (Park Facing) was changed to plot No. 79 (park facing) during re-planning of the site on account of technical reasons. The opposite party also informed vide that letter the development works were completed and the offer of possession was also made to him.

    3. It is alleged that on visiting the site, the complainant found that their plea of completion of development works at site was false, as there was incomplete development and lack of the agreed amenities at site. Thus there is no question of delivery of possession of the plot to the complainant by the concerned officials of the opposite party. Some of the allottees have also engaged the services of a qualified Civil Engineer, who visited the site and made a detailed report dated 18.05.2018 to the effect that the project site of the opposite party was not completely developed and there was lack of agreed facilities and amenities at the site. The opposite party has unilaterally changed the location of the plot earlier allotted to the complainant, as per letter dated 08.02.2018 on alleged technical reasons and allotted aforesaid new plot as well as offered its possession, which is wrong, illegal and against the terms and conditions of the Brochure and letter of intent. No notice was given to the complainant before holding the draw of lots again and changing location of the earlier plot allotted to the complainant. The opposite party has failed to complete the development work at the site till date.

    4. It is further pleaded that that completion/occupation certificate is required to be obtained by every promoter before delivery of possession of the plot/flat/unit etc,to the allottee. The opposite party fall under thc definition of 'Promoter', as defined in the Explanation-1 given under section 2 (Y) of Punjab Apartment and property Regulation Act 1955. Section 14 of the Punjab Apartment and Property Regulation Act 1955 deals with responsibility of the promoter to obtain completion and occupation certificate from the competent Authority. In the instant case, the opposite party has failed to obtain the said completion certificate. Without issuance of the certificate by the competent authority, the opposite party cannot be said to be in a legal position to hand over possession of a plot in question to the complainant. Without completion / occupation certificate, the possession of the plot, though of changed plot, offered to the complainant on 08.02.2018 was just a paper possession. Moreover, the complainant cannot be compelled to take possession of the changed plot, without his consent and association in the draw of lots. In such circumstances, it is crystal clear that the opposite party failed to deliver possession of the plot, complete in all respects, to the complainant within the stipulated period, as per terms and condition of the Brochure, letter of intent and allotment letter. The complainant cannot wait indefinitely for the possession of the plot complete in all respects. The opposite party failed to complete the development works at the site and failed to deliver possession of the plot to the complainant, along with promised facilities within the stipulated period, along with completion /occupation certificate and also changed the site of the plot number 858 PF to 79 PF without any notice to the complainant. The act of the opposite party is clearly deficiency in service and unfair trade practice. The complainant requested the opposite party number of times to refund the deposited amount along with interest but all in vain.

    5. On this backdrop of facts, the complainant has prayed for direction to the opposite party to refund the amount of Rs. 3,85,003/- with interest @ 18% p.a. from the date of receipt till payment and pay an amount of Rs. 2,00,000/- as compensation on account of mental tension and harassment besides litigation expenses to the tune of Rs. 22,000/-.

    6. Upon notice, the opposite party appeared through counsel and filed written reply by raising legal objections that the complainant is not a consumer; the complainant has no cause of action to file the complaint; the complainant has no locus standi; the complaint is not maintainable; as per terms and conditions of the brochure, in case of any dispute the matter shall be decided by Sole Arbitrator i.e. Chief Administrator PUDA, so this Commission has no jurisdiction to adjudicate the complaint and also u/s 174 of the PUDA Act. That the complainant has not approached, demanded or applied for refund of his deposited amount till today and in the absence of any such request, no refund can be made to the complainant. There is a set procedure for surrender of allotted plot and for refund of deposited amount. The complainant has never exhausted that procedure. Thus the complainant has no cause of action to file the present complaint; the complaint is bad for non-joinder and mis-joinder of necessary party; that the complainant has not come to this Commission with clean hands and has concealed the material and true facts; the complaint involves intricate questions of law and facts, which cannot be decided in summary proceedings by this Commission; the complainant is estopped to file the complaint by his act, conduct and acquiescence and that the complainant has filed a false, frivolous and vexatious complaint.

    7. On merits, the opposite party has pleaded that complainant had applied for allotment of 256.67 sq. yards plot at Suger Mill site Budhlada vide application Form No. 3668 on 26-10-2012 after going through and understanding the terms and conditions of the brochure, so he is bound by the terms and conditions of the brochure of the scheme as well as letter of intent for allotment of plot dated 26-02-2013. He deposited 15% amount of the plot. It is clearly mentioned in the terms and condition No. 12 of the said letter of intent for allotment of plot dated 26-02-2013 that "possession of plot shall be handed over to the allotee after completion of development works at site or 18 months from the date of issue of allotment letter which ever is earlier". The opposite party/PUDA has already issued the allotment letter dated 06-12-2016 to the complainant and delivered the possession of the plot to the allotee/complainant. Due to technical reasons, re-planning of plot numbers was made and plot No. 858 was changed to plot No. 79 and a letter No. 807 dated 8-02-2018 was sent to the complainant. The opposite party has already completed the development work at the site and provided all the basic amenities. The opposite party has also delivered the possession of the plots to all the allotees including the complainant.

    8. It is further pleaded that before the draw regarding change of plot numbers, a public notice was given in the various news papers as well as also on the website of the opposite party. Apart from this, mobile SMS was also sent to all the allotees / reallotees by the I.T. branch of the opposite party, in this regard. If the complainant was not interested in said scheme, he could file for his refund of money as per the terms and conditions of the said letter of intent, as per rules of PUDA/BDA, but as per record, the complainant has not approached, demanded or applied for refund of his deposited amount till today. There is no deficiency in service or unfair trade practice on the part of opposite party. After denying all other averments of the complainant, opposite party prayed for dismissal of complaint.

    9. In order to prove the claim of the comlainant, complainant tendered into evidence photocopy of letter ( Ex.C-1),photocopy of demand draft ( Ex.C-2), photocopy of letters ( Ex.C-3 & Ex.C-4) and affidavit of Vijay Pal Makkar dated 15-03-2018 ( Ex.C-5).

    10. In order to rebut the evidence of the complainant, opposite party tendered into evidence affidavit of Udaideep Singh Sidhu dated 29-04-2019 ( Ex.OP1/1), photographs ( Ex.OP1/2 to Ex.OP1-9), photocopy of itemwise details for mobile containing pages 1 to 5 ( Ex.OP1/10) and photo copy of cutting of Newspaper ( Ex.OP1/11).

    11. We have heard learned counsel for the parties and gone through the record.

    12. Of course, it is not disputed that complainant applied for plot of 256.67 Sq. Yards and initially he was allotted plot No. 858 in the above said scheme. Letter of Intent was issued on 26-02-2013 (Ex. C-1). After issuance of Letter of Intent, the complainant deposited 15% amount i.e. Rs. 2,31,003/-. Allotment letter dated 6-12-2016 (Ex. C-3) was issued to complainant. Thereafter plot number of complainant was changed to 79 vide re-allotment letter dated 23-02-2018 (Ex. C-4).

    13. A perusal of Letter of Intent dated 26-02-2013 (Ex. C-1) reveals that as per clause 7 of letter of Intent, the balance 75% of the tentative price of plot can either be paid in lump sum without any interest within 60 days from issue of allotment letter or in 6 equated half yearly installments alongwith interest. First installment was to become due after one year from the date of issue of allotment letter. In the case in hand, allotment letter was issued to complainant on 6-12- 2016 (Ex. C-3), after more than 3 years. Plot number and size of plot of complainant was changed by opposite party vide letter dated 23-2-2018 without consent of complainant which clearly proves that said project of the opposite party was incomplete on that date.

    14. Similar matter under same scheme has been decided by Hon'ble State Commission, Punjab, Chandigarh, in the case titled Raman Goyal Vs. PUDA (now BDA) CC No. 865 of 2019 decided on 30-06-2020 wherein it has been held :-

      ..Opposite party is deficient in service in delaying the delivery of possession for such a long period. The complainant is nowhere at fault in complying with the terms and conditions of the Allotment Letter, but opposite party is definitely at fault by not adhering to the terms and conditions thereof. We are of the opinion that complainant is entitled to refund of his deposited amount with compensation and litigation expenses.”

    15. Hon'ble National Commission in Revision Petition No. 1678 of 2018 decided on 14-2-2019 case titled Estate Officer PUDA (now BDA) Vs Kewan Kumar Goyal has observed in similar matter that in case the possession is not offered within a reasonable time and when they are not in a position to tell that when the possession will be delivered then the order of refund passed by District Forum is justified.

    16. Hon'ble Supreme Court in the case titled Pioneer Urban Land and Infrastructure Limited Vs. Govindan Raghavan (2019) 2 RCR (Civil) 738 has opined in similar matter that when possession of the allotted plot/flat/house is not delivered within the specified time, the allottee is entitled to a refund of the amount paid with reasonable amount of interest thereon from the date of payment till the date of refund.

    17. In the case in hand as per terms and conditions of allotment letter/letter of Intent, the possession of the plot was to be delivered within 18 months from the date of issuance of allotment letter (dated 6-10-2016) after completion of development work at site i.e. upto 6-4-2018. The opposite party has not placed any document on file to prove that physical possession of plot was delivered/offered to complainant within that period after completion of basic amenities/agreed facilities.

    18. Therefore keeping in view the facts, circumstances, evidence and the opinion rendered in the aforesaid authorities, this Commission is of the considered opinion that non-completion of said project with basic amenities in time and non-delivery of possession in time, is clearly a deficiency in service on the part of the opposite party.

    19. Resultantly, this complaint is partly allowed with Rs. 10,000/- as cost and compensation. The opposite party is directed to refund to complainant Rs. 3,85,003/- with interest @ 9% p.a. from the date of deposit till refund.

    20. The compliance of this order be made within 45 days from the date of receipt of copy of this order.

    21. The complaint could not be decided within the statutory period due to heavy pendency of cases.

    22. Copy of order be sent to the parties concerned free of cost. File be consigned to the record room.

      Announced :

      24-11-2021

      (Kanwar Sandeep Singh)

      President

       

       

      (Shivdev Singh)

      Member

       

      (Paramjeet Kaur)

      Member

     

     

     
     
    [HON'BLE MR. Kanwar Sandeep Singh]
    PRESIDENT
     
     
    [HON'BLE MR. Shivdev Singh]
    MEMBER
     
     
    [HON'BLE MRS. Paramjeet Kaur]
    MEMBER
     

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