1.      This Order shall decide both Appeals arising out from the common Order dated 23.07.2021 passed by the learned State Consumer Disputes Redressal Commission, Punjab, Chandigarh (hereinafter referred to as the “State Commission”) in Consumer Complaint No. 18 of 2021, wherein the Ld. State Commission partly allowed the complaint.

2.      Appeal No. 862 of 2021 was filed with a delay of 67 days and Appeal No. 691 of 2022 was filed with a delay of 361 days. However, in the interest of justice, the delay is condoned in both the Appeals.

3.      For convenience, the parties will be referred to as mentioned in the complaint before the State Commission. Ms. Ena Arora the Appellant in First Appeal No. 691 of 2022 will be referred as the Complainant. Meanwhile, Punjab Urban Planning and Development Authority (PUDA) & Others, who are the Respondents in First Appeal No. 862 of 2022 will be referred to as Opposite Parties/Ops.

4.      Brief facts, as per the Complainant, OPs launched the scheme "309 Residential Plots at Nabha Road Patiala" in November 2015.  The   Complainant applied for a 500 Sq Yd plot on 19.11.2015 and paid ₹12,50,000/- as earnest money. The advertisement brochure promised ‘possession on 25% payment’. PUDA issued a Letter of Intent (LoI) in favour of the complainant on 01.03.2016 demanding an intimation of its acceptance along with payment of 15% of total sale consideration as a precondition for a valid acceptance. Complainant accepted the same by making payment of ₹21,25,000/- on 25.03.2016. Thereupon, Allotment Letter for Residential plot no. 27-PF was issued in favour of the Complainant on 19.12.2016 for a total consideration of ₹1,31,25,000/- As per clause 9 of the said Allotment Letter the possession was to be delivered latest by 19.06.2018 after completing all relevant development works. There was no provision for extension of time. PUDA allegedly failed to deliver possession within the stipulated time despite her compliance with payment terms. The complainant contended that PUDA made false assurances regarding possession and did not adhere to the promised timelines. The terms of the Allotment Letter were one-sided and unfair, favouring PUDA's interests. PUDA did not fulfil its commitments despite receiving payments. Being aggrieved, the Complainant filed a Consumer Complaint before the State Commission.

5.      In reply before the State Commission, the OPs averred that there was no deficiency in service or unfair trade practice. The complainant defaulted after the initial 25% payment, making her ineligible for relief. The complaint is not maintainable as she filed a Contempt Petition (COCP No.461 of 2020) before the Hon’ble Punjab and Haryana High Court at Chandigarh, which is pending. Referring to Ram Kishan & Anr. v. State of Haryana & Ors (CWP No.4108 of 2016), the OPs contended that the scheme and allotment process began before the order directing fully developed allotments. They offered possession with completed development works which was accepted by vide letter from the Complainant dated 11.12.2017, within stipulated time. Complainant erred in the first two instalments despite accepting possession, and failed to pay balance 75% of the principal amount of the plot. OPs refuted claims of illegal imposition of interest and penalties, stating all actions were as per agreed terms and necessary approvals project were obtained, and infrastructure works were completed as required. The State Commission lacked pecuniary jurisdiction since she paid only ₹31,25,000/-. The complaint was an abuse of process, involving disputed legal and factual issues better suited for civil court or arbitration as per Allotment Letter terms.

6.      The learned President, State Commission, partly allowed the complaint as ‘minority decision vide order dated 23.07.2017 as under:

“i) Clauses 3(II), (XI), 4(I) and 7(VIII) of the allotment letter dated 19.12.2016, Ex.C-6, are modified to the extent as detailed in Para-43 of the judgment; offer of possession letter dated 12.12.2017, Ex.C-12, Partial Completion Certificate dated 08.01.2019, Ex.C-21; and Show-cause Notices dated 12.09.2018 Ex.C-26, dated 12.10.2018 Ex.C-27 (colly), dated 06.12.2018 Ex.C-28(colly) and dated 03.02.2021 Ex.C-30 (colly.) are set aside, being unfair and invalid.

ii) The interest and penalty amounting to ₹72,99,973/- is set aside, as the opposite parties failed to comply with the terms of agreement, specifically regarding non-completion of development works at the site.

iii) The opposite parties are directed not to charge the non-construction charges till 29.02.2024, as the actual physical possession of the plot, in question, was delivered to the complainant only on 01.03.2021.

iv) The opposite parties are directed to pay interest at the rate of 12% per annum on the amount deposited by the complainant i.e. ₹33,87,500/- after the stipulated date of delivery of possession i.e. 18.06.2018 till the date of delivery of actual possession of the plot i.e. 01.03.2021.

v) The opposite parties are directed to pay ₹77,000/- towards compensation for the mental agony and harassment suffered by the complainant due to deficiency in service and unfair trade practice on the part of the opposite parties, including litigation expenses.

7.      On the other hand, the members dissented with the President and passed their opinion forming the “majority decision” and partly allowed the complaint with the following directives:-

“I) The OPs are directed to refund the amount of Rs.33,87,500/- initially deposited by the complainant, with interest at the rate of 12% per annum from the respective dates of deposit till realization.

II) The OPs are further directed to refund the amount of Rs.1 Crore forthwith, which has been deposited by the complainant as per interim order dated 23.04.2021.

III) to pay composite litigation expenses and compensation for the mental agony and harassment suffered by the complainant to the tune of Rs.50,000/-.”

8.      Aggrieved by the majority decision of the State Commission, both the parties i.e., the OPs/Builder and the complainant filed the present cross Appeals seeking the following:

For FA/862/2021 – filed by the OPs (Builder)- M/s PUDA -

“a) Kindly, set aside the order dated 23.07.2021 in Consumer Complaint No. 18 of 2021 passed by the Hon’ble State Consumer Dispute Redressal Commission, Punjab at Chandigarh; and

b) Pass such further and other order as the Hon’ble Court may deem fit and proper in the interest of justice.

For FA/691/2022 – filed by the Complainant- Ms. Ena Arora.

1. Set aside the majority view of the Impugned Judgment dated 23.07.2021 passed by the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh in Complaint No. 18 of 2021;

2. Pass such other orders as this Hon’ble Tribunal may deem fit and proper in the facts and circumstances of the present case and thereby render justice.

9.      In Appeal No. 862 of 2021, the OPs mainly advanced the following grounds:

A. The State Commission failed to take notice of the Partial Completion Certificate issued by the Competent Authority on 08.01.2019 and raising an assumption that the site work was incomplete at the time when the possession was offered.

B. The State Commission failed to note that the OPs completed the development works and had taken access to form a road from PWD (B&R) and on the spot access is available to allottees. Further, there was no hindrance to entry and movement. Rs.1,21,418/- were also deposited with the Department for issuing connections to the allottees at the spot.

C. The appropriate forum for challenging the delay in delivering possession is Punjab Real Estate Regulation Authority (PRERA) and not the Ld. State Commission.

D. The State Commission erred in holding that the actual possession was taken by her on 01.03.2021 whereas she was already in possession with effect from the date of the possession letter dated 11.12.2017. The said possession being within the period prescribed in the Allotment Letter renders the Order for refund of Rs.33,75,000/- along with Rs.1,00,00,000/- infructuous.

E. The State Commission unjustly failed to award any damages or upholding any penalties imposed by the OPs, despite taking notice of the defaults in installments made by the complainant.

F. The State Commission failed to consider that she has already availed an alternative remedy by filing a Contempt Petition before the Hon’ble Punjab and Haryana High Court in COCP No. 461 of 2020 with respect to the same facts which is pending adjudication.

10.    In Appeal No. 691 of 2022, the complainant contends as below:

1. The State Commission erred in holding the non-retrospective application of the Punjab and Haryana High Court's judgment in CWP 4108 of 2016 dated 22.11.2016 (Ram Kishan v. State of Haryana) and subsequent policy dated 15.02.2017. It wrongly misinterpreted the Ram Kishan judgment (supra) by holding that the same was delivered post issue of Allotment Letter dated 19.12.2016. Thus, the terms of the Allotment letter which are in violation of the High Court order, as highlighted by the President, State Commission should have been set aside.
2. The State Commission erred in holding that she needs to pay the installments as per Allotment Letter despite paying 25% of the consideration. The same is not as per the precondition OPs notified as “Possession on 25% Payment”. Thus, she was entitled to possession after payment of 25% consideration.
3. Even though the possession offer was accepted under protest on 11.12.2017 it was invalid due to incomplete development work. The discrepancies in payment obligations were wrongly asserted by majority decision of the State Commission, contrary to Ram Kishan judgment (supra) and advertised terms. Also, the show cause notices demanding payments inclusive of penalties and interest despite defaulting in timely possession are arbitrary. Further, the majority’s decision overlooked her continuous representations and a pending Contempt Petition.

11.    In FA/862/2021, the learned counsel for the OPs reiterated the grounds of Appeal and argued that Clause 4 of the Allotment Letter, aligning with Clause 9 of the Letter of Intent, stipulates possession of the plot after completion of development works or within 18 months of the Allotment Letter, whichever is earlier. Despite her failure to pay the installment due after the allotment letter, Show Cause Notice dated 12.09.2018 was issued for pending payment. But to no avail. The possession was offered within 12 months from allotment letter dated 19.12.2016 after completing necessary development work. Thereupon, possession was accepted by her under protest. It was contended that upon completion of the development work, including water supply, sewerage, roads and power were said  to be completed by 21.02.2018 by a Partial Completion Certificate which was issued on 08.01.2019. The learned counsel for OPs argued that owing to the ongoing Contempt Petition before the Punjab & Haryana High Court (COCP No. 461/2020), based on similar issues the present complaint was not maintainable. He asserted that the State Commission Members rightly held that the complainant was obligated to pay instalments as per the Allotment Letter after accepting possession on 11.12.2017 which she has been enjoying ever since. Thus, she was not entitled to any refund. Citing numerous judgments, including in Prashant Kumar Shahi v. Ghaziabad Development Authority (2000 (4) SCC 120), the counsel argued that complainant should not have stopped the payment of installments under any circumstances, and the OP had the right to forfeit earnest money in case of default. It was averred that the 2017 Policy had no retrospective applicability and did not affect the present case, as the scheme and allotment process started well before the High Court order and the said policy. Citing Ashok Aggarwal v. Improvement Trust Sangrur and Church of Christ Charitable Trust v. Ponniamman Educational Trust and VK Appliances v. New India Insurance (2013 OnLine NCDRC 935) counsel for the OP further argued on the issue of limitation and contested that the complaint was filed in 2021, nearly 3 and a half years later exceeding the statutory limitation period under Section 69 of the Act, 2019. Reliance was also placed on Kandimalla Raghavaiah & Co v. National Insurance and State Bank of India v. B.S. Agricultural Industries (2009 (5) SCC 121). It was further argued that the Complainant was not a consumer under the Act, 2019, having purchased the plot for speculative purposes and resale, which undermines her claim. The OPs asserted that the State Commission erred in concluding incomplete development work, which contradicts the case record, and her objections regarding the development are frivolous. Highlighting jurisdictional issues, he argued that the learned State Commission lacked jurisdiction due to the pecuniary amount involved being below its threshold. They also asserted that the Act, 2019 does not empower consumer fora to interfere with legitimate actions of public authorities or contractual terms between parties.

12.    In FA No. 691/2022, the learned counsel for the Complainant vehemently argued that the Impugned Judgment (majority decision) had fundamentally misinterpreted the legal landscape concerning the judgment dated 22.11.2016 by the Hon’ble High Court of Punjab and Haryana and subsequent Policy issued on 15.02.2017. He stressed that these were not to be made applicable retrospectively, contrary to the majority’s conclusion, which erroneously presumed possession was validly transferred to the Complainant on 11.12.2017. It was argued that her obligation to pay subsequent instalments beyond the initial 25% of the total sales consideration was contingent upon PUDA fulfilling its reciprocal duty to deliver valid possession within 18 months after completing all development work. The Impugned Order erroneously asserted that once terms and conditions of an agreement were accepted, they could not be challenged. He further argued that the impugned Order allowed the alternative prayer of refund due to non-execution of development work, contrary to established legal principles that such prayers could only be granted when the main relief became unattainable. Moreover, the counsel emphasized that despite repeated requests and representations, permission to deposit amounts towards the principal without interest or penalty imposed by PUDA was not granted. It was also highlighted that PUDA had not obtained any Completion Certificate. Despite payment of total sale consideration, and the physical possession of the plot being with the Complainant, PUDA retained the sale consideration and challenged the impugned order through FA No. 862 of 2021. He, therefore, asserted that FA No. 691 of 2022 should be allowed, and FA No. 862 of 2021 should be dismissed.

13.    I have examined the pleadings and associated documents placed on record and rendered thoughtful consideration to the arguments advanced by learned counsels for both the Parties.

14.    The main issues need to be determined are whether the Complainant/Allottee is liable to pay the penalty to OPs for delay/ default in the scheduled payments after the initial payment of 25% of the consideration. If yes, to what extent? Whether the OP defaulted in providing timely possession of the plot to the Complainant, thereby making them liable to pay compensation? If yes, to what extent?

15.    Admittedly, on 13.10.2015, the OPs put out an advertisement launching a scheme under the name “309 Residential plots at Nabha Road Patiala”. The Complainant applied for a 500 Sq Yd plot in the scheme and paid Rs. 12,50,000/- as earnest money. Consequently, on 01.03.2016 vide Letter of Intent No. 2138 Plot No. PF 27 was allotted to her. Accepting the terms of the said Letter of Intent, on 25.03.2016 she further paid Rs. 21,25,000/-. Thus, the total amount paid by her towards the Plot was Rs. 33,75,000/- as on 25.03.2016. OP-1 issued her a Allotment Letter dated 19.12.2016 mentioning the payment schedule with interest for the installments of balance 75% of the consideration. On 11.12.2017 she forwarded a Letter accepting the said Allotment ‘Under Protest’, alleging lack of basic amenities. It is the case of the Complainant that the said Allotment Letter had various unfair clauses and were against the ‘2017 Policy’ dated 02.01.2017 which was based on the decision of Hon’ble Punjab and Haryana High Court in CWP 4108 of 2016 dated 22.11.2016.

16.    Consequently, the Complainant also filed a Contempt Petition (COCP No. 461 of 2020) in the Punjab and Haryana High Court alleging the Allotment to be contrary to the above decision. Based on this Contempt petition the OPs have claimed that an alternate remedy has already been exercised by the Complainant and thus, the consumer forums cannot entertain the same. It deserves to be noted that in the said judgment the Hon’ble High Court after deciding the case on merits remarked on the deplorable state of affairs relating to allotment of plots wherein the directions were given to the relevant authorities of the Punjab Govt to form a fresh policy as follows:

“9. Before parting with the order, it is observed that this Court is flooded with litigation...”

17.    On perusing the facts of the above case, the main issue therein was regarding the allottee not getting the proper possession in time. Nowhere in the said case was any policy brought into question as being arbitrary. The role of the Courts is not to make a new law and is to interpret or interfere with the already existing laws. That being said, the above case is clear on this point. The Hon’ble High Court in the above case passed order and made suggestions while leaving the ultimate onus to make the law upon the legislative authorities. Based on the directions of the High Court the ‘2017 Policy’ was framed.

18.    At this point I would like to refer to the judgement of the Hon’ble Supreme Court in Assistant Excise Commissioner, Kottayam v. Esthapapan Cherian (LL 2021 SC 419) wherein it was observed:

“There is profusion of judicial authority on the proposition that a rule or law cannot be construed as retrospective unless it expresses a clear or manifest intention, to the contrary...Another equally important principle applies: in the absence of express statutory authorization, delegated legislation in the form of rules or regulations, cannot operate retrospectively.”

19.    This principle of law is known as lex prospicit non respicit: law looks forward not backward, as was observed in Phillips Vs. Eyre, (1870) LR 6 QB 1. Thus, it is a settled principle of law that a law cannot be applied retrospectively unless expressly stated otherwise and the same has been upheld in a plethora of judgments by the Hon’ble Supreme Court. The Allotment Letter in the present case was issued to the Complainant based on the existing rules and regulations. Thus, since the said Policy was framed on the order in Ram Kishan case (supra) at a later stage i.e. after the Allotment Letter was already issued and accepted, even if under protest, by the Complainant, the provisions of the new policy are not applicable to her and she is bound by the terms and conditions mentioned therein. Law is dynamic and ever evolving, new laws are added and old ones are amended keeping the benefit of the people in mind. However, if all beneficial legislations are retrospectively made applicable, it will open a floodgate to never ending litigations which is impermissible. Thus, a retrospective application of a law is feasible in very limited situations wherein the legislature after due consideration expressly allows the same. In the present case however, as no such mention being made in the 2017 Policy, the same would be applied only prospectively. Therefore, we concur with the observations made by the State Commission in this regard.

20.    As regards the Contempt Petition, it is noted that though having similar facts, the cause of action in the former and the present case are completely different. The former is for making the OPs liable for not adhering to the issues laid down in the Ram Kishan case (supra). Whether or not there is a contempt of the said judgment is a matter to be adjudged by the Hon’ble Punjab and Haryana High Court. In the present case, the Complainant and OP are before this Commission for a completely different issue in an Appeal against the order of the learned State Commission. Therefore, the OPs contention regarding the Contempt Petition being an alternative remedy already exercised by the Complainant holds no ground.

21.    With respect to the issue regarding the time when the default on part the Complainant and OP, if any, started and ended, admittedly after the allotment was issued to the Complainant requiring her to take possession, the same was accepted by her vide letter dated 11.12.2017. As discussed above, the possession was to be delivered to her upon completion of the development work or by 19.06.2018, whichever was earlier. There was delay in this regard and the Partial Completion Certificate was issued on 08.01.2019, discharging OPs from their obligation with delay of 203 days attributable to the OPs. This points towards delay and deficiency in service on their part. Thus, the possession with the Complainant from 11.12.2017 to 08.01.2019 was a mere notional and inconsequential possession of an undeveloped plot, which she cannot utilise for the purpose she purchased. Thus, the effective date of a valid possession commenced from 08.01.2019 on which date the Partial Completion Certificate was issued. Thus, the Complainant should not be subject to any default in payment until proper possession was given. It is however to be noted that post this possession, the Complainant defaulted in further three payments which had to be made on 20.06.2019, 20.12.2019 and 20.06.20 respectively in accordance with the Allotment Letter, thereby, resulting in a default at her part.

22.    The OP argued that the State Commission erred in omitting to note the ex-post facto application of the Partial Completion Certificate from 21.02.2018. If such consideration is allowed, it would mean that the OP delivered the project within time. Such argument is prima facie untenable as a Certificate of that nature is a pre-condition for any further utilisation and enjoyment of the property. Allowing issue of a Partial Completion Certificate retrospectively at the back of a buyer would be against the tenets equity and reasonableness and defeats the interests of consumers. Therefore, it cannot be allowed.

23.    Also, the Hon’ble Supreme Court in Wg. Cdr.  Arifur Rahman Khan v. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512 categorically held and observed as under:

“36… The Developer in the present case has undertaken to provide a service in the nature of developing residential flats with certain amenities and remains amenable to the jurisdiction of the Consumer Fora. Consequently, we are unable to subscribe to the view of the NCDRC that flat purchasers who obtained possession or executed Deeds of Conveyance have lost their right to make claim for compensation for the delayed handing over of the flats.”

24.    Thus, the validity of a Partial Completion Certificate commences from its date of issue i.e. from the date it became public knowledge and the liability of defaults of the party need to be determined from the said date.

25.    Vide interim order of the learned State Commission dated 23.04.2021, a further amount of Rs.1 Crore was deposited by the Complainant vide Receipt No. 215888 to the Respondent bringing the total amount paid by her to Rs.1,33,75,000/-.

26.    In view of the above deliberations, on due consideration of the entire facts and circumstances of the case, the Complainant who is in possession of the Plot in question is granted liberty to retain the Plot by paying the balance due as per the Scheme notified, if any, with due regard to the delay in obtaining the Partial Completion Certificate. The OPs are directed to consider all the payments made by her totaling to Rs.1,33,75,000 (Rs.12,50,000 + Rs.21,25,000 + Rs.1,00,00,000) vis-a-vis the total consideration as per the Scheme, from the respective dates of such deposits. Her liability to pay delay penalty shall commence from 08.01.2019, on which date the Partial Completion Certificate was issued. The OPs are directed to consider the total payment of Rs.1,33,75,000/ made by the Complainant and notify the amount due, if any, as early as possible and not later than one month from the date of this order. On being so notified, the Compliant shall pay the same within one month from the date of so being informed by the OPs. On receipt of such payment, the OPs shall execute the Sale Deed in favour of the Complainant within one month thereafter.

27.    In case, the Complainant is not inclined to continue the possession of the Plot or the payment due is not deposited within the stipulated period of one month after notification of the dues, she shall hand over the Plot in question to the OPs within a period of two months from the date of this order and thereupon the OPs shall refund the Complainant Rs.1,33,75,000, along with simple interest @ 9% per annum from the dates of respective deposits till complete realization. This payment shall be made within a period of one month from the date of handing over of the Plot in question. In the event of delay beyond one month, the simple interest liable to be paid for such extended period shall be @ 12% per annum.   

28.    With these directions, FA No. 862 of 2021 and FA No. 691 of 2022 are disposed of.

29.    There shall be no order as to costs. All pending Applications, if any, also stand disposed of accordingly.

30.    The Registry is directed to release the Statutory Deposit amount, if any due, in favor of the parties after the compliance with the above order.