Punjab

StateCommission

CC/391/2018

Anita gogna - Complainant(s)

Versus

the indian co-operative house building society limited - Opp.Party(s)

Sandeep bharwaj

10 Apr 2019

ORDER

                                                           FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,   PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH

                    

 

Consumer Complaint No.391 of 2018

 

 

                                                          Date of Institution   : 14.05.2018

                                                          Order Reserved on:  04.04.2019 

                                                          Date of Decision    :  10.04.2019

 

Anita Gogna wife of Surinder Kumar Gogna, resident of House No.4243, Sector 78, Mohali

                                                                                                                                                    …..Complainant

                                                Versus

         

The Indian Co-op House Building Society Ltd., S.A.S Nagar Mohali, Regd. Office :- Above Oriental Bank of Commerce Chandigarh Road, Mullanpur, Garibdass (New Chandigarh), Tehsil Kharar-140901.

 

IInd Address:-

 

Office Address : SCO 156-157, Sector 37-C, Chandigarh 160036 through its Chairman/President/Secretary/Authorized Signatory.

                                                    

                                                                          ….Opposite Party

         

Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

               Sh.Rajinder Kumar Goyal, Member.

Present:-

          For the complainant    :  Sh.Sandeep Bhardwaj, Advocate  

          For opposite party       :  Sh.H.P.S Kochhar, Advocate.

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                  

                  The complainant has filed this complaint U/s 17(1) (a) of the Consumer Protection Act 1986 (in short the "Act) against opposite party (in short OP) on the allegations that she purchased plot from OP for her exclusive purpose of residence by constructing it. OP held no statutory approvals or sanctions for the development of the project from the authorities and the project also lacked basic amenities. The complainant became member of OP/society for construction of a house for her residence with her family. The housing construction is defined as service under Section 2(i)(o) of Consumer Protection Act 1986 and hence complaint is competent under Consumer Protection Act. OP received consideration from her for the purpose of allotment of the plot. She paid Rs.5,62,500/- to OP on 12.02.2011 , vide receipt no. 120 dated 12.02.2011. OP assured her for development of the project very soon, but no development took place thereat. She also acquired knowledge from one Rajinder Singh that OP had not obtained any change of land user certificate for this project till 08.07.2015. The change of land user certificate is a sine qua non for receiving the consideration. Information obtained under RTI Act in this regard is dated 08.07.2015. The complainant has withheld payments of remaining amounts on account of holding no statutory permissions and sanctions by OP. OP violated the mandatory provisions of PAPRA Act 1995, as it received the consideration without holding any requisite statutory permissions, approvals from the competent authority.  Even buyers agreement was not executed by OP in favour of complainant with regard to this plot for total price of Rs.22,50,000/- of 250 sq. yard  @ Rs.9000/- per sq yard. She alleged deficiency in service on the part of OP in receiving the consideration amount without holding requisite statutory approvals by the authorities for its development and hence prayed for below noted reliefs against OP :-

1. OP be directed to refund the entire amount of Rs.5,62,500/-  deposited by her towards unit in question along with interest @ 18% per annum from the date of deposits till realization.
2. OP be directed to pay Rs.2 lac as compensation for mental harassment and Rs.50,000/-as cost of litigation.

2.           Upon notice, OP appeared and filed written reply and contested her complaint  by raising preliminary objections that Sh. N.K Puri Member of the society has been authorized by Managing Committee of OP  to pursue the complaint on the basis of Resolution dated 31.05.2016. The complainant approached it for allotment of the plot of 250 sq. yard along with application form. She was supplied copy of payment schedule and she gave an undertaking to pay installments, licence fee, CIJU, EDC, IDC and other development charges of this residential plot. OP/Society is registered under Societies Registration Act 1961. Greater Mohali Development Area Authority Mohali (hereinafter referred to as GMADA) issued a site plan of the area in December 2008 to complainant and site plan of the area was changed by the above authority on 28.12.2010 and thereafter site plan was changed by GMADA in the year 2016. The delay in allotment of the plot due to site plan of the area was changed by the government till 2016. She defaulted in making the payments of her dues as per payment schedule of OP despite sending many reminders to her. She has not cleared the payments towards cost of the plot  and part payment of CLU, IDC, EDC, Licnece fee, land enhancement charges. Demand Letter was sent to her  on 10.09.2013  demanding balance payment followed by another demand letter dated 01.10.2013 and again demanding the balance payment, vide letter dated 17.06.2016 informing about the grant of CLU and draw of lots for shareholders, who have made full payment of basic cost of land and additional charges of CLU, IDC, EDC, License fee, land enhancement charges and interest. The request was made to deposit Rs.4000/- per sq. yard as per communication dated 19.07.2016 and on 12.12.2016 informing her about the approval of layout plan of the society by Town and Country Planning Department Punjab. Letter of intent by GAMADA was issued to her and she was further asked to make the balance payment up to 10.04.2017. Thereafter, vide letter dated 04.03.2014, the OP/society was directed to pay the requisite fee and it was informed that government had enhanced the fee for CLU by 10% by that time.  Number of members including complainant of OP had defaulted in making the payments  and thereafter present members of the Committee had arranged amount at their own level and paid a sum of Rs.10 crore  to government. After change of land user, OP society submitted the site plan/drawings for approval, which had been approved by competent authority, vide letter dated 11.11.2016. The complainant paid only 25% of the basic price of the plot to OP. Rest of the averments of the complainant were denied by OP even on merits and it prayed for dismissal of the complaint.

3.           The complainant tendered in evidence her affidavit  Ex.C-A along with copies of documents Ex.C-1  and Ex.C-2 and closed the evidence. As against it; OP tendered in evidence affidavit of Narinder Kumar Puri Authorized Representative of OP as Ex.OP-A along with copies of documents Ex.OP-1 to Ex.OP-15 and closed the evidence.

4.                We have heard learned counsel for the parties and have also examined the record of the case.

5.                The first point for determination in this case is, whether complainant is consumer of OP /Co-operative Society or not. The forceful submission of counsel for OP is that it is a Cooperative Society , hence complainant is not consumer under Consumer Protection Act 1986 and hence complaint is not maintainable before this Commission. We find no force ex facie in this submission of OP. Section 2(i)(m) of Consumer Protection Act  states that a person includes a Cooperative Society, now the matter has been settled by Apex Court in “Secretary Thirumurugan Co-operative Agricultural Credit Society versus M. Lalitha (Dead) through LRs and others” reported in 1(20004) CPJ 1(SC) by holding that dispute between members and management of Co-operative society under Cooperative Societies Act cannot exclude the jurisdiction of the Consumer Forums under Section 3 of Consumer Protection Act 1986. The complaint was held to be maintainable against Cooperative Society in this cited authority by Apex Court. On the basis of law laid down by Apex Court, (supra), the complainant is held to be a consumer of OP and complaint brought by her against Cooperative Society is competent before this Commission.

6.                The next submission of counsel for complainant is that OP is governed by the provisions of PAPRA Act 1995. It has not complied with the provisions of the above Act in this case and straightway received the consideration money from complainant to the tune of Rs. 5,62,500/- . Much emphasis has been laid by counsel for complainant on this point during the arguments in this case, terming the act of OP as unfair trade practice.  On the other hand, the submission of counsel for OP is that complainant defaulted in making the payments of the balance amount and as such, she is not entitled to seek any refund of the deposited amount from the OP/society in this case. There is no controversy between the parties on this point that even cooperative society is governed by the provisions of PAPRA Act 1995. The evidence on the record has been perused by us with the able assistance of counsel for the parties. Ex.C-1 is receipt dated 12.02.20121  for deposit the amount of Rs.5,62,500/- by complainant with OP, vide receipt no. 120. One Rajinder Singh resident of 367, Golf Link-1, Ansal API, Sector 114 SAS Nagar Mohali received information under RTI Act from Public Information Officer concerned Ex.C-2 vide memo no.672 dated 08.07.2015 to the effect that OP/society has not obtained change land user certificate from the office of this project uptill 08.07.2015. OP received the payment from complainant of Rs.5,62,500/- on 12.02.2011, but failed to obtain above CLU by them as proved by letter Ex.C-2 dated 08.07.2015.

7.                To refute this evidence of complainant, OP relied upon affidavit of Narinder Kumar Puri as Ex.OP-A on the record. Ex.OP-1 is membership application form  for allotment of 250 sq. yard plot in the project. Ex.OP-2 is notice sent to complainant by OP on 10.09.2013 regarding allotment of the plot, as she has deposited Rs.5,62,500/- with OP. Ex.OP-3 is urgent notice dated 1.10.2013 addressed to complainant for making further balance amount followed by notice Ex.OP-4 dated 17.06.2016 followed by another notice dated 19.07.2016. OP also sent separate notice Ex.OP-6 dated 12.12.2016 to her for deposit of balance amounts followed by another notice Ex.OP-7. Ex.OP-9 is permission for change of land user for SUNTEC City residential project situated in Master Plan new Chandigarh at Village Palheri Tehsil Kharar District Mohali, vide memo no.2629 dated 03.06.2016 on the record. It is evident from perusal of Ex.OP-9 that OP held no change of land user certificate, but it received the amount of Rs.5,62,500/- from the complainant on 12.02.2011. This is in utter violation of PAPRA Act committed by OP in this case. Even layout plan of this project was approved by Chief Administrator GMADA to OP on 11.11.2016 only, vide letter no.5542 Ex.OP-10 on the record. OP held not approved layout plan, but it straightway received the payment from complainant nor it had CLU certificate in the year 2011 for this project.  Letter of intent was issued by GMADA to OP on 09.11.2017, vide Ex.OP-11 only. Vide Ex.OP-13 dated 20.03.2018 Administrator GMADA intimated to OP that licence has been issued to it by GMADA on 20.03.2018, vide licence no.27/2018. Even licence  was issued to OP by GAMADA on 20.03.2018, vide letter Ex.OP-13 to develop the colony. It is, thus, evident from perusal of above referred evidence on the record that OP received the consideration amount of Rs.5,62,500/-  from complainant on 12.02.2011 for not holding approval of building plan by competent authority. These are violations of PAPRA Act 1995 and OP indulged in unfair trade practice in receiving the above-referred amounts from complainant straightway. No buyers agreement has been executed by OP despite receipt of 25% amount by OP in favour of complainant. As per requirement of Section 6 of PAPRA Act 1995, OP is thus held to have indulged in unfair trade practice in receiving the money from complainant to the tune of Rs.5,62,500/- without holding necessary licence from GAMADA to develop the colony, without CLU and without approval of building plan by competent authority in the year 2011.

8.                As a result of our above discussion, we accept the complaint of the complainant on account of violation of provisions of PAPRA Act 1995 and thereby indulging in unfair trade practice. The complaint is accepted with below noted directions to OP :-

1. OP is directed to refund the deposited amount of Rs.5,62,500/- to complainant along with interest @ 12% per annum from the date of its deposit till actual payment under Rules 17 of PAPRA Act 1995.
2. OP is also directed to pay 55,000/- as composite amount of compensation for mental harassment and cost of litigation.

9.                Arguments in this complaint were heard on 04.04.2019 and the order was reserved. Certified copies of the order be communicated to the parties under rules.

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

                                                                          (J. S. KLAR)

                                                         PRESIDING JUDICIAL MEMBER

                               

                                                              (RAJINDER KUMAR GOYAL)

                                                                                MEMBER

April 10 , 2019                                                            

(ravi)