DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

Consumer Complaint No.282 of 2017

                                                 Date of institution:  17.04.2017                                                         Date of decision   :  22.03.2018

Raj Kumar son of Shri Bua Dass, H.No.1285, Phase III B2, Mohali.

…….Complainant

Vs

1.     M/s. Sky Rock City Welfare Society (Regd.), Banur Road, Back side C.G.C. College, Landran, Sector 111-112, Mohali Punjab, through its President/Authorised signatory.

2.     Mr. Navjeet Singh s/o Daljit Singh, President of the Sky Rock City Welfare Society (Regd.), resident of House No.67, Sector 69, Mohali, Punjab (now in Central Jail, Patiala as per orders dated 27.03.2017 passed by the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh), through Superintendent Jail Patiala, Punjab.

3.     Greater Mohali Area Development Authority (GMADA) through its Chief Administrator, PUDA Bhawan, Sector 62, SAS Nagar, Mohali.

……..Opposite Parties.

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:   Shri G.K. Dhir, President,

                Shri Amrinder Singh Sidhu, Member

                Mrs. Natasha Chopra, Member.

Present:    Shri P.P. Singh, counsel for complainant.

                OP No.1 and 2 ex-parte.

                Shri G.S. Arshi, counsel for OP No.3.

Order by :-  Shri G.K. Dhir, President.

Order

               Complainant on being allured by the publicity made by OP No.1 through newspapers, agreed to purchase residential plot in Sector 111-112, Mohali in the project named and styled as Sky Rock City Welfare Society at village Behrampur, District SAS Nagar, but after becoming member of OP No.1 society.  Cost of the plot was Rs.9,000/- per sq. yard. Size of the residential plot was 100 sq. yard. Rs.5,000/- were paid towards membership fee vide receipt No.2005 dated 06.06.2011. Share certificate dated 18.04.2012 even was issued in favour of complainant by OP No.1. A sum of Rs.4,75,000/-, being 50% of cost of land was paid vide receipts issued by OP No.1 in favour of complainant during period from 10.06.2011 to 16.03.2012. As per Clause-5 of buyers agreement, possession of the plot was to be handed over to complainant not later than two years of registration/requisition. So virtually possession was to be delivered before 06.06.2013. Complainant withheld payment of certain amounts in view of reasonable and justifiable apprehension that OPs will not fulfill their obligation. It is claimed that OPs have not done any spade work at the site for developing it and making it habitable. As per knowledge of complainant initial licence issued by GMADA in 2011 to OP No.1 has been cancelled and conditional developer licence was issued on 23.09.2013. In view of violation committed by OP No.1 their office has been sealed recently by GMADA. Booking of the plot was done by complainant on 10.06.2011. In view of failure of OP No.1 and 2 to deliver possession by agreed time upto 06.06.2013, they have provided deficient services and even adopted unfair trade practice. Complainant having visited the site personally many times and lastly in March, 2017, found that no development work had been commenced on the site and the site is lying vacant. External and internal development works even have not been carried out on the spot. OPs failed to comply with the provisions of Punjab Apartment and Property Regulation Act, 1995 (in short PAPRA) while launching and promoting the scheme because they were having no license, CLU or permission to launch. OP No.1 has not deposited the EDC/IDC charges with OP No.3, even after collection from the complainant. OP No.3 has failed to discharge its statutory obligation of monitoring the development works at the site, due to which OP No.1 failed to provide the location of plot/site to the complainant.  From the public notice issued by the OP No.3 in the press, complainant got knowledge as if OP No.1 has collected huge money from the public for booking of plots in excess of available one in the project. OP No.3 was under statutory obligation to protect the interest of the complainant, but it failed to do so and as such it remained deficient in providing service. By pleading deficiency in service and adoption of unfair trade practice, prayer made for directing the OPs to handover the physical possession of the plot without future delay and pay interest @ 18% per annum on the deposited amount with effect from October, 2013 till date and in the alternative refund of amount of Rs.4,80,000/- with interest @ 18% per annum from the date of respective deposits till realisation, is claimed. Rs.3.00 lakhs as compensation on account of mental agony and harassment and Rs.21,000/- as litigation expenses also claimed.

2.             OP No.1 and 2 are ex-parte in this case.  OP No.3 filed reply by claiming inter alia as if no relationship of consumer and service provider exists between complainant and OP No.3; complainant has no locus standi and cause of action as well as complaint bad due to mis joinder and non joinder of necessary parties. All averments of complaint regarding transactions between complainant and OP No.1 and 2 denied for want of knowledge, but by admitting that office of OP No.1 has been sealed. However, it is claimed that as per record of OP No.3 neither licence issued in favour of OP No.1 even cancelled and nor the same renewed.  It is admitted that OP No.3 is taking action against OP No.1 for violating the conditions of licence.  No specific allegation against OP No.3 alleged to be leveled. OP No.1 has not deposited the requisite amount of EDC charges with OP No.3. Admittedly licence of OP No.1 was issued on 06.05.2014 and that public notice was given by OP No.3 through The Tribune dated 18.02.2017 for making general public aware of the conduct of OP No.1. Through that public notice, general public was made aware as to how OP No.1 cheated the general public by booking flats/plots in excess of available one. After receipt of number of complaints against OP No.1, meeting with representative of OP No.1 society and those complainants was held. In that meeting, decision was taken that allotment letters be issued to those 10 members, who have deposited 90% payment with the society within one week. Out of remaining 86 plots, allotment letters were ordered to be issued to those members who have deposited 90% payment on first come first served basis. Plot numbers alongwith description of the sector was also to be intimated to the allottees as per approved lay out plan. Those members aspiring for refund of deposited amount, were given option to get the refund as per terms and conditions of the agreement with the society, on the basis of first come first served.  A committee under the Chairmanship of Superintending Engineer, GMADA was to inspect the colony in question and thereafter submit the report regarding development works of colony within a period of 15 days. That committee submitted report vide letter No.959 dated 18.02.2016. As per report of the committee, OP No.1 has not got service plans approved from the competent authority. Further as per that report, a building of CGC Landran was existing on the land, where plots were carved out as per approved lay out plan. Although lines of water supply, sewer and storm sewer were laid in some parts of colony, but road (gullies) were not constructed. Arrangement for disposal of sewer and storm sewer at the site was not made till date as per that report. OP No.1 society was informed about these irregularities through various letters from time to time. OP No.1 society was called upon to respond to the queries put to it and thereafter its representative was called for personal hearing for furnishing information regarding number of members of society; list of those members who deposited 90% amount; number of members to whom allotment letters issued and number of members to whom possession delivered and also of number of members to whom possession not delivered. No satisfactory response to these various queries was submitted. OP No.1 gave list of total 350 members registered with the society. As per list, plots of different sizes allotted to 170 members, but refund of deposited amount took place in favour of 96 members. Complete particulars were not disclosed in the list submitted by OP No.1. After grant of colony licence, OP No.1 society was required to acquire ownership of area of the colony and even to get consent letters of the land owners, but it failed to do so.  Thereafter request was sent to worthy Deputy Commissioner and SDM as well as Tehsildar, SAS Nagar for calling upon them to stop registration of sale deeds regarding plots/flats/showrooms/booths by OP No.1 society in favour of its customers. Even Estate Officer (Regulatory) GMADA made complaint dated 08.02.2017 with Senior Superintendent of Police, SAS Nagar for registration of FIR under Section 420 IPC. Other averments of the complaint denied.

3.             Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-7 and thereafter closed evidence.  Counsel for OP No.3 tendered in evidence affidavit Ex.OP-3/1 of Shri Meetinder Singh Mann, District Town Planner alongwith documents Ex.OP-3/2 to Ex.OP-3/4 and thereafter closed evidence.

4.             Written arguments not submitted by any of the parties, but oral arguments heard and records gone through.

5.             Contents of affidavit Ex.CW-1/1 of complainant alongwith receipt Ex.C-2 and share certificate Ex.C-3 establishes that complainant became member of OP No.1 society w.e.f. 06.06.2011 on deposit of Rs.5,000/- as membership fee.  It was after becoming member of complainant that he deposited Rs.90,000/- as land cost through receipt Ex.C-4 with OP No.1 and other amounts. Photostat copies of receipts of other deposits also annexed with the complaint. So certainly complainant established that he deposited Rs.4,80,000/- including membership fee and land cost charges with OP No.1. Terms and conditions of allotment produced as Ex.C-5.

6.             As development works not carried on the spot as per the photographic depiction placed on record as Ex.C-6 of date 23.03.2017 and that is why complainant now opting for refund of the paid amount in the alternative with interest from the date of deposit. Counsel for complainant vehemently contends that as complainant was deprived of the hard earned money sufficiently for long time by OP No.1 and 2 and as such they should refund the amount with interest @ 12% per annum atleast. It is also contended that OP No.3 though was under statutory obligation to prevail upon OP No.1 and 2 to carry out the work of the project as per schedule, but it failed to perform its duty and as such OP No.3 also should be held liable. However, Shri G.S. Arshi, counsel for OP No.3 contends that no relationship of consumer and service provider exists between complainant and OP No.3 and as such OP No.3 cannot be held liable, particularly when it took pains of issue of public notice for informing general public about the cheating habits of OP No.1 and 2. After considering pros and cons of rival contentions of counsel for complainant and OP No.3, we find force in the submissions advanced by counsel for OP No.3 because relationship of consumer and service provider do not exist between complainant and OP No.3 at all. 

7.             Copy of the public notice Ex.C-7 is produced on record to establish that Chief Administrator of OP No.3 informed general public that though licence to OP No.1 society for setting up a colony has been issued, but the promoter is cheating general public by collecting crores of rupees from them in the name of booking of plots/flats, in excess of available number of plots/flats approved in the project. Office of OP No.1 even was sealed by OP No.3 as per contents of affidavit Ex.OP-3/1 of Shri Meetinder Singh Mann, DTP. Ex.OP-3/2 is the same thing as is Ex.C-7 i.e. public notice. Ex.OP-3/3 is a letter written by GMADA to Revenue Authorities for calling upon them not to register sale deeds of plots/flats in the project in question because OP No.1 failed to deposit EDC and licence fee. Even the Estate Officer of OP No.3 forwarded complaint Ex.OP-3/4 to Senior Superintendent of Police, Mohali for initiating action against OP No.1 and 2 because they violated the provisions of Section 36 (1) of PAPRA Act. So certainly from this produced documentary evidence, it is made out that when OP No.3 got knowledge regarding cheating habits of OP No.1 and 2, then it made the general public aware by issuing notice through newspapers and even took action of lodging complaint with Senior Superintendent of Police, Mohali for registration of FIR against OP No.1 and 2. In view of taking of this action by OP No.3 against OP No.1 and 2, it has to be held that virtually OP No.3 discharged its duties of controlling and regulating the activities of promoters to whom developer licence granted by it. Moreover, complainant never availed the services of OP No.3 for consideration allegedly paid or promised to be paid and as such certainly relationship of consumer and service provider do not exist between complainant and OP No.3. Being so, consumer complaint against OP No.3 is not maintainable, more so when deficiency in service on the part of OP No.3 cannot be inferred due to taking of action by it as statutory body against  OP No.1 and 2.

8.             Ex.C-6 is photostat copy of the photographs snapped on 23.03.2017 for showing that work of the project has not been completed at the spot. Amount of Rs.4,80,000/-  accepted by OP No.1 and 2 from complainant during period from 06.06.2011 to 16.03.2012 is a fact borne from perusal of receipts, but despite that due to non completion of work of the project on spot, until 23.03.2017 possession of the plot has not been handed over to complainant and nor any offer of allotment ever made to complainant and as such it is obvious that OP No.1 and 2 have provided deficient services by not abiding by the terms and conditions reflected on receipts Ex.C-2 and Ex. C-4 as well as on other receipts. As per Clause-5 of terms and conditions printed on receipts Ex.C-2 and C-4, physical possession of the plot was to be handed over not later than two years of registration/requisition. Registration of complainant as member of OP No.1 Society took place on 18.04.2012 is a fact borne from copy of share certificate Ex.C-3 and as such possession should have been handed over by 17.04.2014. That possession has not been handed over till date and as such certainly OP No.1 and 2 committed breach of terms and conditions on which deposit of amounts accepted by them from complainant by issue of receipts Ex.C-2 and Ex.C-4. As project work has not been completed as reflected by photographic depiction referred above and as such certainly OP No.1 and 2 are not in a position to handover physical possession even after lapse of period of two years stipulated through Ex.C-5 referred above. As work of project is not completed and as such it is uncertain as to when the possession of the plot will be got by complainant despite making of payment of Rs.4,80,000/- by him. That is bound to cause unnecessary mental tension, harassment and agony to complainant and as such prayer made in the complaint for refund of the deposited amount of Rs.4,80,000/- deserves to be allowed alongwith prayer for grant of compensation for mental harassment and agony and litigation expenses, but of reasonable amount.

9.             It is not a case in which complainant sought for the refund of paid amount by filing any application and as such interest at the prevailing interest rate alone must be ordered by invoking Clause-4 of terms and conditions printed on Ex.C-2, Ex.C-4 and Ex.C-5. Keeping in view the fact that complainant was prevented from utilizing the amount of Rs.4,80,000/- for long time, it is fit and appropriate to allow interest @ 12% per annum from the date of seeking of refund namely 17.04.2017 i.e. when such refund sought for the first time by way of filing this complaint. As OP No.1 and 2 adopted unfair trade practice by making complainant as member of society and then not fulfilling promise of allotting plot and delivering possession of the same, and as such refund of the paid amount with interest @ 12% per annum is appropriate. OP No.1 and 2 virtually have not contested because they are ex-parte and as such fitness of things demand that compensation for mental agony and harassment of Rs.20,000/- and litigation expenses of Rs.5,000/- more should be allowed in favour of complainant and against OP No.1 and 2 by holding them in joint and several liability for the entire payment alongwith interest as referred above.

10.           As a sequel of above discussion, the complaint allowed with direction to OP No.1 and 2 to pay Rs.4,80,000/- (the amount received by them) with interest @ 12% per annum from the date of complainant namely 17.04.2017 till payment. Compensation for mental agony and harassment of Rs.20,000/- and litigation expenses of Rs.5,000/- more allowed in favour of the complainant and against OP No.1 and 2, whose liability held as joint and several. However, complaint against OP No.3 is dismissed. Payment of these amounts of compensation and litigation cost be made within 30 days from receipt of certified copy of order.  Certified copies of the order be supplied to the parties free of costs as per rules.  File be indexed and consigned to record room.

Announced

March 22, 2018.

                                                                (G.K. Dhir)

                                                                President

                                                                   (Amrinder Singh Sidhu)                                                               Member

(Mrs. Natasha Chopra)

Member