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

Consumer Complaint No.280 of 2017

                                                 Date of institution:  17.04.2017                                                         Date of decision   :  22.03.2018

Ramandeep Kaur wife of Shri Amandeep Singh, resident of House No.2340, Sector 71, 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 got residential plot No.169-M by transfer from OP No.1 in lieu of Plot No.F-8 on 09.06.2014 in Sector 111-112, Mohali in the project named and styled as Sky Rock City Welfare Society at village Behrampur, District SAS Nagar.  Cost of the plot was Rs.4,500/- per sq. yard. Size of the residential plot was 150 sq. yard. Rs.60,000/- were paid towards transfer fee and registration/membership fee vide two receipts of date 06.06.2014. Share certificate dated 06.06.2014 even was issued in favour of complainant by OP No.1. A sum of Rs.6,07,500/- being 90% of cost of land was paid vide receipts issued by OP No.1 in favour of complainant during period from 09.06.2014 to 31.12.2014. Rs.3,75,000/- were paid towards EDC/IDC charges. At the time of transfer of plot, OP No.1 assured that possession of the plot was to be handed over to complainant within two years of registration. So virtually possession was to be delivered before 06.06.2016. Booking of the plot was done by complainant on 06.06.2014. In view of failure of OP No.1 and 2 to deliver possession by agreed time upto 06.06.2016, they have provided deficient services and even adopted unfair trade practice. Provisional letter of allotment dated 06.06.2014 was signed by complainant. OP No.1 through this letter changed all the terms and conditions. As per Clause-13 of these terms and conditions, possession of the plot was to be given within 36 months from the date of allotment letter. It is claimed that terms have been changed arbitrarily by OPs. Plot No.169 M was allotted to complainant vide provisional allotment letter dated 06.06.2014 by draw of lots in Sector 110-111-112. Arbitrary demand of Rs.2,25,000/- as EDC charges and of Rs.1.50 lakh as IDC charges raised by OPs. 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. Complainant after visiting the site personally many times and lastly in March, 2017 found that no development work had commenced on the site and the site is lying vacant. External and internal development works even have not been carried out on the spot. 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 services. 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 19.11.2015 till date and in the alternative refund of amount of Rs.10,42,500/- with interest @ 18% per annum from the date of respective deposits till realisation, is claimed. Rs.4.00 lakhs as compensation on account of mental agony and harassment and Rs.35,000/- 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.  However, 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 basis.  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) 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-9 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. 06.06.2014 on deposit of Rs.10,000/- as membership fee.  It was after becoming member of society that complainant deposited Rs.50,000/- as transfer fee through un-exhibited receipt dated 06.06.2014 with OP No.1.  Share Certificate Ex.C-3 was issued in favour of complainant by OP No.1 society.  Photostat copies of receipts of other deposits mentioned in Ex.C-4 (detail of payments) also annexed with the complaint. So certainly complainant established that he deposited Rs.10,42,500/- including membership fee, EDC/IDC and transfer charges with OP No.1. Copy of the provisional allotment letter produced as Ex.C-5. This Ex.C-5 is signed by complainant as per her admission in the complaint. Though complainant claims that provisional allotment letter Ex.C-5 got signed from her, when it was blank, but that submission certainly has no force because Ex.C-5 mostly is in print.  So case of complainant not believable that her signatures on Ex.C-5 obtained, when the papers of it were blank.  As and when terms of contract reduced into writing, then parties are bound by terms and conditions thereof and as such now complainant cannot wriggle out of the terms of Ex.C-5.

6.             After going through Ex.C-5, it is made out that plot No.F-8 in the project of OP No.1 was allotted to complainant at rate of Rs.4,500/- per sq. yard with super area price. In all Rs.6,75,000/- exclusive of proportionate share of common areas, was chargeable.

7.             After going through Clause-2 of Ex.C-5, it is made out that if for any reason, the whole or part of the project is abandoned or it becomes impossible for execution by operation of law or by action of any authority, then no claim will be entertained except that of refund of money without interest. Possession to be handed over as per Ex.C-5 only on payment of entire consideration alongwith other dues. That entire payment admittedly has not been made because in the complaint and the supporting affidavit itself it is mentioned that complainant on becoming apprehensive that OP No.1 will not be in a position to deliver the possession or fulfill its obligation, withheld amount of sale consideration. Act of withholding of sale consideration amount on basis of apprehension alone is an act of deficiency on the part of complainant.

8.             As per Clause-4 of terms and conditions endorsed on receipts Ex.C-2 and Clause-3 of Ex.C-7, if the allottee does not want to continue even after paying some installments, then he will be refunded the entire amount with interest mentioned therein after one year or three years from the date of registration. Further as per Clause-5  and 4 of Ex.C-2 and Ex.C-7 respectively, possession of the plot will be handed over physically not later than two years of date of registration/requisition. That registration in this case took place on 06.06.2014 as revealed by copy of share certificate Ex.C-3 and as such possession was to be delivered physically to complainant by 06.06.2016. Complainant has never applied for refund of the paid amount or getting physical possession of the flat in question untill filing of this complaint and as such virtually complainant sought remedy of seeking refund of the price amount for the first time on filing of this complaint on 17.04.2017. So in view of Clause-4 of Ex.C-2 and Ex.C-7, entitlement of complainant for refund of the paid amount became on expression of not continuing with the scheme of allotment of plot to her. As that expression made by filing this complaint and as such complainant will be entitled to interest from the date of filing of this complaint.

9.             Details of payments made by complainant to OPs are contained in Ex.C-4. Photostat copies of some of the receipts of payment in this respect are produced on record as Ex.C-2 and Ex.C-7 as well as other unexhibited photostat copies of receipts. Details given in Ex.C-4 matches with the details of amounts paid through those receipts and as such certainly complainant able to establish as if she paid Rs.10,42,500/- to OPs on different dates through different cheques/receipts mentioned in Ex.C-4 itself.

10.           Provisional allotment letter Ex.C-5 was issued to complainant regarding Plot No.F-8 having area of 150 sq. yards. In this allotment letter itself it is mentioned that if for any reason any further changes are made by sanctioning authorities or by architects or by Welfare Society, then on the changed area of the apartment/flat, super area rate will be applicable. Clause-2 of Ex.C-5 itself provides that if for any reason, whole or part of the project is abandoned or becomes impossible of execution by operation of any law or by action of any authority, then no claim will be instituted except that the money deposited by the member will be refunded fully without any interest. However, at the same time it is also mentioned in Clause-9 of receipts Ex.C-2 and Annexure and Ex.C-7 that in case payment of installments not made as per schedule, then society can cancel membership and plot booking. Change of terms and conditions without notice is also contemplated by Clause-10 endorsed on Ex.C-2  and annexure receipt and Ex.C-7 each. If OPs can change the terms and conditions without notice to the allottee, and even can cancel the membership and allotment on non payment of installments, then it will be harsh and oppressive, if complainant allowed nominal interest on prevailing rate of saving accounts only. It is so because complainant kept on waiting for long that plot will be allotted to her, but after finding that no construction work carried on the spot and public notice even issued by OP No.3 regarding cheating habits of OP No.1 and 2, complainant under compelling circumstances applied for refund. So interest @ 12% per annum atleast should be allowed.

11.           Ex.C-8 are the photographs dated 23.03.2017 produced for showing as if due construction activity not carried on the spot, but Ex.C-9 = Ex.OP-3/2 is copy of public notice issued by OP No.3 for cautioning general public from indulging in transactions with OP No.1 and 2 because they are not having sufficient plots available with them for allotting the same to its members. However, complainant herself acquiesced in the act of OPs for long and as such entitlement of complainant for interest will be from the date of filing of complaint.

12.           OP No.3 through Administrator called upon the Revenue Authorities to desist from registering the sale deeds of the project in question because of the irregularities/flaws in not depositing the EDC and license fee requisite for getting promoters license. This letter Ex.OP-3/3 is of date 04.11.2016 and thereafter OP No.3 through Estate Officer even filed complaint with SSP, Mohali for registration of FIR against OP No.1 through its President Navjeet Singh because they were violating provisions of PAPRA Act 1995. So it is obvious that OP No.3 took due steps for cautioning general public and even prevented OP No.1 and 2 from carrying out their illegal designs of collecting money, but without fulfilling promise of allotting plots or handing over physical possession. So certainly OP No.3 took due steps for controlling the activities of OP No.1 and 2 and as such no deficiency in service on part of OP No.3 can be found. Moreover, complainant never availed the services of OP No.3 for consideration paid or promised to be paid or partly paid and as such certainly relationship of consumer and service provider do not exists between complainant and OP No.3. Being so, consumer complaint against OP No.3 is not maintainable.

13.           However, complainant suffered mental agony and harassment due to misrepresentations made by OP No.1 and 2 regarding carrying of the development activities on the spot, but without actually carrying the same and as such complainant entitled for refund of the paid amount with interest @ 12% per annum from the date of complaint till payment. In view of sufferance of mental agony and harassment, complainant entitled to reasonable amount of compensation under this head alongwith litigation expenses. As virtually  due contest not raised by OP No.1 and 2 and as such it will be appropriate to allow litigation costs of Rs.5,000/- and compensation for mental agony and harassment of Rs.20,000/-.

14.           As a sequel of above discussion, the complaint allowed with direction to OP No.1 and 2 to pay Rs.10,42,500/- (the amount received by them) with interest @ 12% per annum from the date of complaint 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