BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.356 of 2020
Date of Instt. 14.10.2020
Date of Decision: 13.12.2022
Ram Vihar Welfare Society (Regd.) 13, Ram Vihar Near Guru Gobind Singh Avenue, Jalandhar through its President Sh. Raju Ambedkar.
..........Complainant
Versus
1. St. Soldier Properties, P. P. R. Building, Silver Oak, Nakodar Road, Jalandhar through its Chairman/Director/Executive Head.
2. The Jalandhar Development Authority, SCO No.41, PUDA Complex, Ladowali Road, Jalandhar Through its Chairman/Director/Executive Officer.
3. Municipal Corporation Jalandhar through its Commissioner.
4. Punjab Urban Development Authority through its Chief Administrative Officer/Executive Head, PUDA Bhawan, Sector 62, SAS Nagar, Mohali.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. Raju Ambedkar, Adv. Counsel for Complainant.
OP No.1 exparte.
Sh. Brijesh Bakshi, Adv. Counsel for OPs No.2 to 4.
Order
Dr. Harveen Bhardwaj (President)
1. This complaint has been filed by the complainant, wherein alleged that the Complainant i.e. Ram Vihar Welfare Society (Regd.) is a registered welfare society having its office at 13, Ram Vihar, Near Guru Gobind Singh Avenue, Jalandhar (hereinafter say 'Society'). The sole aim and object of the welfare society is in all aspects development of the area on the basis of humanitarian and social grounds. The OP No.1 has floated a scheme 4.789 acre, vide which residential plots were sold at Ram Vihar, Near Guru Gobind Singh Avenue, Lamba Pind, 2020 Jalandhar, which is an approved colony and the license No.98/38 and the same was approved on 28.07.1998 by Jalandhar Development Authority. The members of Ram Vihar Society are resident of Ram Vihar and are owner and in physical possession in their respective houses since the allotment, but facing extreme and unbearable hardships due to deteriorated condition of street light, sewerage, water supply and roads. Under the directions of respective members of society, the residents of Ram Vihar Welfare Society moved an application to the Builder i.e. St. Soldier Properties, P. P. R. Building, Silver Oak, Nakodar Road, Jalandhar and stated that:
“We are the resident of Ram Vihar near Guru Gobind Singh Avenue, Jalandhar. The said colony is PUDA approved colony and the same is approved by PUDA vide license No.98/38 on dated 28.07.1998. During the last many years neither the colonizer nor the PUDA Development Authority has given an attention for the development and maintenance of the colony. Moreover, basic facilities are not provided to the resident of colony. Brief demand chart is given:
- Roads (2) Street Lights (3) Sewerage link (4) Drinking water
Additional Demands:
Kind attention of this Commission towards the OP No.1 to 3 is hereby drawn that construction is not complete as per the layout demarcation map. Which is a serious matter after a period of more than 20 years OP No.1 St. Soldier Properties i.e. Builder hasneither complete the construction work as per the site plan nor provide the basic amenities, i.e. water, sewerage, roads and street lights which is a gross violation of Act. Section 5 (Submitted by Section 5, 6, 8 and 11 of the Punjab Urban Development Laws and the Punjab Apartment Act and Properties Regulation Action 1995 and also violation of Consumer Protection Act 2019,which is also gross negligence and deficiency in service. Moreover, OP No.2 did not make any efforts to provide the basic amenities to the resident of society which leads to violation of section 5 (Development of Land in to Colony) and Sub Section 11 whih is reproduced as:
“The Promoter shall be responsible for the maintenance and upkeep of all roads, open spaces, public parks and public health services until the date of transfer thereof, free of cost to the State Government or the Local Authority.”
2. In reply to the letter dated 19.01.2018 which was moved by Ram Vihar Society to St. Soldier Properties and also JDA directed the St. Soldier Properties and Industries Ltd. Silver Oak Apartment, Nakodar Road, Jalandhar in respect of development works in Ram Vihar Colony of 4.789 Area vide Letter No.CA/JDA/2018/1545. In light of this letter St. Soldier Properties and Industries Ltd. replied that the colony was established vide license No.98/38 dated 28.09.1998 by the competent authority and the area of this colony i.e. 4.789 acre and sale has been took place in 2000. Boundary wall has been completed. Regarding the development facilities of the resident pakka roads are constructed, street lights and sewerage facilities are there and drinking water supplied through tube well and water tanks. All the development facilities are completed.
If any work is incomplete we are ready to complete that.
Reply of letter dated 19.01.2018 which was received on 09.03.2018 by Jalandhar Development Authority, Jalandhar is on record.
The complainant strongly controverted the version of the OP No.1 and resisted and reverted the claim of the OP No.1. The factual position is being depicted by the report of Architect. The resident of Ram Vihar Welfare Society, filed a complaint before Estate Officer, PUDA, Jalandhar on 19.01.2018 through its President Sh. Raju Ambedkar and stated that they are the resident of Ram Vihar, Jalandhar. The real and factual position of the work and conduct are very unreasonable and unjustified as per the terms and conditions, because OP has failed to perform its contractual obligation and gross violation of the statutory rules and administrative instructions, which amount to gross negligence and deficiency in service.
As per the Punjab Apartment and Property Regulation Act 1995 section 5 submitted by para No.12.
“In the event of the Promoter contravening any provisions of this Act, or rules made there under or any conditions of the license granted under sub section (3) of the competent authority may after giving an opportunity of being heard, cancel the licence and enforce the bank guarantee furnished by the promoter under the said sub section (3)”
Considering the gross violation of terms and conditions and not provided the civil amenities and other requirement the complainant hired the service of S. Iqbal Singh Building Engineer who visited the site on dated 30.09.2020 and has submitted the report which is on record. The Architect submitted in his report that the condition of roads is incomplete, no water supply, sewerage is in bad condition & overflowing and electric polls are installed but without electric connections. Even no schools, parks & health centres have been constructed in the areas as per the lay out plan. The complainant had applied under RTI Act vide RTI/JDA/2019/1328 dated 13.12.2019 and complainant has got the information from the Information Officer JDA Jalandhar. The OP No.3 stated that this colony was constructed by the Pvt. Colonizer and this colony was not handed over to Municipal Corporation, Jalandhar so development work of this colony cannot be done in light of this fact. In fact the actual and factual position is that Municipal Corporation Jalandhar has sanction map No.759 dated 09.10.2018 in the name of Balbir Singh S/o Mohan Lal R/o House No.45, Ram Vihar, Near Guru Gobind Singh Avenue, Jalandhar and Map No.1492 dated 01.04.2016 in the name of Raju Ambedkar (President) S/o Ram Hari R/o 13, Ram Vihar, Near Guru Gobind Singh Avenue, Jalandhar. The OP No.1 has furnished a security deposit in shape of bank guarantee as per section 5 of sub section 13 of The Punjab Apartment and Property Regulation Act 1955 and it is the liability of the promoter to pay the development charges as stated in Para No.5 sub section 14. And as per the Punjab Apartment and Property Regulation Act 1955 the security deposit should be used for development purpose and an appropriate order should be passed to utilize the security for the proper development and civil amenities. The act and conduct of the OP towards the complainant, was humiliating, harassing, unethical and non-professional which tantamount to deficiency in service and resorting to unfair trade practice within the meaning under the Consumer Protection Act, 2019 and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs No.1 and 2 be directed to provide proper civil amenities like street light, water, sewerage STP Linking and roads, schools, health centre to the complainant within stipulated period. Further, OP No.1 be directed not to withdraw the security deposit U/s 5 (3) of PAPRA Act unless the completion of the above said civil amenities. Further, OPs No.1 and 2 be directed to handover the Ram Vihar Colony to OP No.3 i.e. Municipal Corporation Jalandhar or to the competent authority. Further, OPs be directed to pay a compensation of Rs.4,00,000/- U/s 39 of the Act as stated above and Rs.50,000/- as litigation expenses.
3. Notice of the complaint was given to the OPs, but despite service OP No.1 failed to appear and ultimately OP No.1 was proceeded against exparte, whereas OPs No.2 & 4 appeared through its counsel and filed its written reply and contested the complaint by taking preliminary objections that the above noted complaint is not maintainable against the OPs, in the present form under the law. It is further averred that the complainant is not a consumer qua the answering OPs and as such, the present complaint in the present form is not maintainable against the answering OPs. Even otherwise the present complaint cannot be filed in representative capacity on behalf of all/any residents of Ram Vihar Colony. It is further averred that the Ram Vihar Colony falls under the jurisdiction of Municipal Corporation Jalandhar and the competent authority to take any action against the promoter is the Municipal Corporation Jalandhar and therefore the present complaint is not maintainable and deserves to be dismissed on this score alone. It is further averred that the complainant has no cause of action to file the present complaint against the OP No.2 and 4. The answering OP No.2 has taken all the necessary action required under law but OP NO.3 is the competent authority to take any further action against the promoter as the colony falls under the jurisdiction of Municipal Corporation Jalandhar and OP No.2 had already written to Commissioner Municipal Corporation Jalandhar for taking over the record of said colony, now being competent authority as per notification No.1744-58 dated 24.06.2010. It is further averred that the complainants are guilty of concealment of material facts and not approached this Commission with clean hands and as such, not entitled to any relief from this Commission. The complainant is barred by their own act and conduct from filing the present complaint and claiming the relief as prayed in the present complaint as far as it relates to the answering OPs. On merits, the factum with regard to floating a scheme of 4.789 acres under the name of Ram Vihar regarding which license was obtained from OP No.2 in the year 1998, is admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
4. OP No.3 filed its separate written reply and contested the complaint by taking preliminary objections that the above noted complaint is not maintainable against the OP No.3, in the present form under the law. It is further averred that the complainant is not a consumer qua the answering OP and as such, the present complaint in the present form is not maintainable against the answering OP. Even otherwise the present complaint cannot be filed in representative capacity on behalf of all/any residents of Ram Vihar Colony. It is further averred that the complainant has no cause of action to file the present complaint against the OP No.3. As admitted by the complainant the colony is not taken over by Municipal Corporation Jalandhar so no cause of action lies against the OP No.3. At the most when the said colony is taken over by the Municipal Corporation if there is any discrepancy then the same is to be dealt by OPs No.2 & 4 and not Municipal Corporation, Jalandhar. As such, the complaint deserves to be dismissed qua the OP No.3 on this short score alone. It is further averred that the complainant is barred by own act and conduct from filing the present complaint and claiming the relief as prayed in the present complaint against the OP No.3. On merits, all the allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
5. Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement.
6. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
7. We have heard the learned counsel for the respective parties and have also gone through the case file very minutely.
8. The complainant is a registered society with the object of development of the area on the basis of humanitarian and social grounds. The complainant has proved on record the resolution Ex.C-1 authorizing Raju Ambedkar to proceed with the present case. The Aadhar Card of Raju Ambedkar has been proved as Ex.C-2. The OP No.1 has floated a scheme dated 4.789 acre, vide which the residential plots were sold and the same is approved colony having a licence duly approved by the JDA. Copy of sanction plan and lay out plan has been proved by the complainant as Ex.C-3 & Ex.C-4. The grievance of the complainant is that despite having the physical possession of the houses, the members of the society are facing hardships due to deteriorated condition of street lights, sewerage, water supply and roads. The application was also moved to OP No.1 to develop and maintain the colony. Even the basic facilities have not been provided to the residents of the colony. The request letter has been proved by the complainant Ex.C-5. The complainant has also moved a complaint to PUDA and Chief Administration Officer, PUDA Ex.C-6 & Ex.C-7. In reply to the complaint and application moved by the complainant, the JDA directed the OP No.1 i.e. St. Soldier Properties to look into the matter and to make the necessary development and maintenance. In reply to the directions, the OP No.1 assured the JDA that the entire work has been completed and if any work is left, they will be completing the same. The reply to the letter has been proved as Ex.C-8. The complainant has availed the services of Iqbal Singh Building Engineer, who visited the site on 30.09.2020 and gave his report Ex.C9. Perusal of Ex.C-9 shows that the technical expert has gone through the actual and factual position of the roads, water supply, sewerage, electricity, parks, school etc. and after inspecting the same, he came to the conclusion that the civil amenities i.e. roads, water supply, sewerage, electricity, parks, school etc. are not as per the lay out plan of the locality. The administration officer/JDA again wrote a letter to the OP No.1 Ex.C-10, vide which the explanation of the OP No.1 was sought and it was clarified that if the explanation is not given, the necessary action will be taken as per the provisions of PAPRA Act, 1995 and PAPRA Amendment Act, 2014. This letter is dated 06.03.2018. The Administration Officer wrote a letter to Executive Engineer JDA on 10.04.2018 Ex.C-11 seeking the detail report regarding the compliance of the license of the colony by the promoter. On this document, the JE made a report that this colony comes under the Municipal Corporation, Jalandhar and not under JDA, but he had given the detailed report also, which is Ex.C-12. Perusal of this report shows that the condition of the colony has been explained by the JE and it is clearly mentioned that the street lights are not in working condition and even the sewerage system is also not working. There is no water supply connection and STP. Report was sent by the Public Information Officer, MTP Department, Municipal Corporation, Jalandhar to the complainant that Ram Vihar Colony has not yet been transferred to Municipal Corporation, Jalandhar, though, the area of Lamba Pind has come under the Municipal Corporation, Jalandhar. This letter has been proved as Ex.C-14. Ex.C-15 also shows that the Corporation Engineer has written a letter to the complainant that since the colony has not been handed over to them, therefore no development work can be got done by the Municipal Corporation. From the documents, it is proved that the OP No.1 has developed a colony and sold the residential plots to different members. The colony was also approved by the OPs i.e. JDA. It is also proved on record that the license was issued by the OPs. The OP No.1 was supposed to carry on the development work as per Section-5 in clause 7, 8, 10 & 11 of Punjab Apartment and Property Regulation Act, 1995, which states as under:-
Section-5
(7). The promoter shall carry out and complete the development of the land in accordance with the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (Central Act 33 of 1976) and other laws for the time being in force
(8). The promoter shall construct or get constructed at his own cost schools, hospitals, community centres and other community buildings, on the land set apart for this purpose or transfer such land to the State Government either free of cost or upon payment of actual cost of developed land, as decided by the State Government, which shall be at liberty to transfer such land to any local authority or any person or institution on such terms and conditions as it may deem fit: Provided that if, having regard to the amenities which exist or are proposed to be provided in the locality, the competent authority is of the opinion that it is not necessary to provide one or more of such amenities, it may exempt the promoter from providing such amenities, either wholly or in part, on such terms and conditions as it may deem fit.
(10) The promoter shall carry out all directions issued by the competent authority for ensuring due compliance of the execution of the layout and the development works therein and to permit the competent authority or any officer authorised by it to inspect such execution.
(11) The promoter shall be responsible for the maintenance and up keep of all roads, open spaces, public parks and public health services until the date of transfer thereof, free of cost of the State Government or the local authority.
So, as per Section-5, it is the responsibility of the Promoter, who is OP No.1, to develop the land in accordance with the provisions and if he contravenes any provision of the Act, the licnese of the Promoter shall be cancelled and the competent authority can enforce the bank guarantee furnished by the Promoter under sub-section 3 of Section-5. Section-5 clause 12 & 13, states as under:-
(12) In the event of the promoter contravening any provisions of this Act, or rules made thereunder or any conditions of the license granted under sub-section (3) the competent authority may, after giving an opportunity of being heard, cancel the license and enforce the bank guarantee furnished by the promoter under the said sub-section (3).
(13) When a license is cancelled under sub-section (11), the competent authority may itself carry out or cause to be carried out the development works, and after adjusting the amount received as a result of enforcement of bank guarantee, recover such charges as the competent authority may have to incur in the said development works from the promoter and the allottees in the manner prescribed as arrear of land revenue.
9. In the present case admittedly the license was issued and bank guarantee was also given by the OP No.1 at the time of getting the colony approved. Since no development work has been completed and carried out by the OP No.1, the responsibility shifts on the OPs No.2 & 3 to get the development work done after giving opportunity to the OP No.1 and if the promoter still violates the conditions of the license, they are to cancel the license and encash the bank guarantee for development work and not to renew the same. Here in the present case, there is a dispute between the OPs No.2 & 3 as to whether the development work is to be done by the OP No.2 or 3. As the area of Lamba Pind has been transferred to Municipal Corporation, Jalandhar, but this colony has not been transferred, whereas the OP No.2 is alleging that the same has been transferred to OP No.3. The matter is between OP No.2 & OP No.3 and they are directed to get the necessary orders from the concerned department/govt. within one month. The OP No.1 has violated the provisions of the Punjab Apartment and Property Regulation Act, 1995 and he is directed to complete the development work as per the provisions of the Punjab Apartment and Property Regulation Act, 1995 within three months failing which the OPs No.2 & 3 are directed to take appropriate action as per Section-5 clause 12 & 13 of the Act and accordingly, the complaint of the complainant is partly allowed. Further, OP No.1 is directed to pay a compensation of Rs.30,000/- for causing mental tension and harassment to the complainant and Rs.5000/- as litigation expenses within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
10. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jaswant Singh Dhillon Jyotsna Dr. Harveen Bhardwaj
13.12.2022 Member Member President
