BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.405 of 2016

Date of Instt. 16.09.2015

Date of Decision: 17.10.2017

Krishan Lal S/o Sh. Jai Lal R/o 4/30/207, Vaishalai, Sector-4, Ghaziabad (U.P.).

..........Complainant

Versus

1. The Jalandhar Improvement Trust, Jalandhar through its chairman/executive officer/authorized signatory etc.

2. The chairman/executive officer, Jalandhar Improvement Trust, Jalandhar.

….….… Opposite parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Sh. Parminder Sharma (Member)

Present: Sh. APS Pathania, Adv Counsel for the complainant.

Sh. Manoj Dhamija, Adv Counsel for the OPs.

Order

Karnail Singh (President)

1. This complaint filed by the complainant, wherein alleged that the OPs floated a development scheme for area of 94.97 acres for the allotment of residential plots in Surya Enclave Extension, Jalandhar, Improvement Trust, Jalandhar and the booking for the said floated development scheme for residential and commercial plots was commenced from 08.08.2011 and the OPs accordingly invited the applications for the residential plots. Since the complainant is an old man and is not in a position to come and appear before this Forum time and again, as such, he has appointed his duly constituted attorney Mr. Dhanwant Singh, who is also well conversant with the facts and circumstances of the present case.

2. The complainant was allured as per the representations given in the said brochure by the OPs and advertisements and accordingly, the complainant purchased one application form and submitted to the OPs through their authorized bank. The complainant applied for more than one plot of different sizes including a plot of 500 Sq. Yards in general category with a hope that one of the plot would be allotted to the complainant and the complainant in his old age will settle in and around the areas of Jalandhar, especially in the residential area of Surya Enclave Extension, Jalandhar. After the draw of plots, the complainant received a letter of allotment dated 18.01.2012/17.02.2012 from the OPs regarding the allotment of residential plot No.40-C, area measuring about 500 Sq. Yards and as per the allotment letter, it also contained the description of terms and condition under which the said plot had been allotted. As per the said letter, there were certain terms and conditions, which are reproduced as below:-

(3) In case you fail to deposit the amount of installments within 06 months, in that event, the aforesaid plot shall be treated as forfeited under the rules, which may be restored on the deposit of outstanding amount alongwith penal interest 20%, restoration charges and 6% penalty as per the instructions issued by the government from time to time.

(6) In case you do not comply with the aforesaid condition within 30 days from the date of issuance of allotment letter of the plot under reference and you do not deposit 1/4^th share of the price of the plot within the prescribed period, in that event, the trust shall be authorized to cancel the allotment of above plot without any correspondence and the amount already deposited by the allottee shall be treated as has been forfeited.

3. That subsequent to the allotment of the above said plot to the complainant, he came to know that six person namely Arjan Singh S/o Mangal Singh, Jagdish Singh S/o Gurbachan Singh, Davinder Kumar S/o Khushpal Chand, Kewal Singh S/o Ganga Singh, Amrik Singh S/o Dalip singh and Bhajan Singh S/o Meja Singh residents of Jalandhar area and the original owners of the land, which was acquired by the OPs had filed a CWP No.3559/2011 on 23.02.2011 against State of Punjab and JIT and Collector Land Acquisition, Jalandhar, whereby the said person has sought the quashing of notification U/s 36 of Punjab Town Improvement Trust Act, 1922, published in the Tribune dated 07.06.2010, vide which the development scheme over the land adjoining Surya Enclave i.e. Surya Enclave Extension has been framed under Section 24(1), 25, 28(2), Sub Para i, ii, iii, iv, v, vi, vii, viii, ix, x, xi, xii of 1922 Act for an area measuring about 94.97 acres. And further prayer for quashing and setting aside the notice u/S 38 dated 11.06.2010 and notification u/S 42 of Punjab Improvement Trust Act, 1922, dated 31.12.2010 being illegal and void has also been made in the said writ petition. Besides, the challenge to the virus of Section 40 of Punjab Improvement Trust, 1922 being ultra-virus to the fundamental right granted to them under article 14 of the Constitution of India, the prayer was made therein for declaration that the word land in entry 18 schedule VII, List II of the Constitution does not include constructed area.

4. From the contents of the civil writ petitions filed in the Hon'ble Punjab and Haryana High Court would reveal that 32 acres of land out of 94.97 acres is the subject matter of adjudication in those civil writ petitions in the Hon'ble High Court and the interim order dated 08.03.2011 was passed by the Hon'ble High Court to maintain the “status quo regarding possession”. Subsequently, vide order dated 26.09.2012, alongwith CWP No.3559/2011, a bunch of similar civil writ petitions No.8618, 8619, 4114, 10785, 8534, 11234 and 16234 of 2011 were also admitted for regular hearing with further direction that “dispossession shall remain stayed”. These civil writ petitions are yet to be decided by the Hon'ble High Court. From these, it is clear that in all these civil writ petitions, the Hon'ble High Court had stayed the dispossession of a big portion of the land acquired by the Improvement Trust Jalandhar on or around 08.03.2011, yet the OPs went ahead with the opening of booking on 08.08.2011, while the aforesaid interim order was in operation. No indication was given to General Public by the Improvement Trust in its brochures, regarding the pendency of the litigation and the interim orders passed by the Hon'ble High Court with respect to the acquisition of land by them for the development of Surya Enclave Extension. Thereby, they had misled the prospective purchasers of residential plots to invest their hard earned money in that scheme. That the complainant being not well versed with the legal position regarding the said fact, simply did not deposit 1/4^th of the price of the plot within the period stipulated in clause 6 of the allotment letter, as he genuinely apprehended that so long the interim order regarding stay was granted by the Hon'ble High Court is continuing, it was not advisable for him to deposit any further installment, since the OPs were not in a position to deliver the possession of the plot to him. His aforesaid apprehension has come true. The complainant also remained under the impression that in the light of clause 3 of the allotment letter, he would receive some intimation regarding the next proposal, if any for the cancellation of the plot after the expiry of 6 months and by then, if various interim orders issued by the Hon'ble High Court against the acquisition of land for the scheme of Surya Enclave Extension are vacated, he should have then deposited the remaining 1/4^th amount as well as further installments as mentioned in the allotment letter alongwith any penal interest etc, if any. However, while the interim orders issued by the Hon'ble High Court in various cases are still continuing till date and the civil writ petitions under reference are yet to be finally adjudicated, yet the complainant has not received any intimation from the OPs, which implies that in view of the interim orders issued by the High Court, the OPs do not propose to take any action regarding the forfeiture of amount initially deposited by the complainant. As the circumstances under which the complainant did not deposit 1/4^th amount of the price of the plot and further installments have been created by the OPs even after the Hon'ble High Court had issued the interim orders of stay regarding the acquisition of land. The complainant has waited for a considerable period but he has not received any communication from the OPs so far and it appears that the OPs are not in position to handover the possession of the plot allotted to the complainant, yet improvement trust is retaining the hard earned money of the residents, who have applied for the allotments of plot without any justification. Therefore, the complainant is entitled for Rs.8.50 Lakhs, which has been deposited by him alongwith interest and compensation. The complainant has also come across that the allottees have sought refund of the amount deposited by them alongwith interest and compensation and these cases have been allowed by the Hon'ble Punjab State Consumer Commission, Chandigarh in consumer complaints.

5. That the complainant has also sought the information under the RTI Act and vide letter No.JIT/3899 dated 30.01.2015, it shows that the OPs have categorically admitted that only 10% allottees have so far demanded the possession from them and they have further admitted that CWPs filed by various land owners are still pending in the Hon'ble High Court and stay on some part of the land acquired by Jalandhar Improvement Trust is still continuing. In such circumstances, the complainant has left with no other option except to demand the refund of the earnest money of Rs.8.50 lakhs alongwith interest @ 18% per annum alongwith costs and compensation and accordingly, the complainant issued a legal notice through his counsel, whereby demanded the refund of the deposited amount alongwith interest and litigation expenses and compensation but no reply has been given and whereby the complainant is mentally harassed and even there is a negligence in providing the better services and are indulging in unfair trade practice and deficiency in service on the part of the OPs and accordingly, the instant complaint filed with the prayer that the complaint of the complainant may be accepted and OPs be directed to refund back the entire amount deposited by the complainant i.e. Rs.8,50,000/- alongwith interest @ 18% per annum from the date of deposit till its realization and further OPs be directed to pay compensation to the tune of Rs.2,00,000/- on account of mental tension, harassment and agony and physical discomfort and further OPs be also directed to pay litigation expenses of Rs.15,000/-.

6. Notice of the complaint was given to the OPs and accordingly, OPs appeared through their counsel and filed written reply, whereby contested the complaint by taking preliminary objections that the compliant of the complainant is not maintainable in the present form nor under the law and further alleged that the compliant is false and frivolous to the knowledge of the answering OP and even the complainant is trying to harass the answering OP by filing present complaint. It is further averred that the complainant has no cause of action to file the present complaint and as such, the complaint is liable to be dismissed and further averred that there has been no stay regarding to scheme or deposit of amount. The complainant has deliberately not deposited the 1/4^th amount. The department is not bound to send any communication/warning to complainant to get deposit the amount. As the complainant himself is at fault. The complainant has not deposited the 1/4^th amount to honour the agreement and as such, there is no agreement between the parties. The complainant has not become consumer of the answering OP. As such, the present complaint is not maintainable. On merits, it is admitted that the OPs have floated a scheme for area of 94.97 acres for allotment of the residential plots in Surya Enclave Extension, Jalandhar and it is also admitted that the complainant has booked one plot of 500 Sq. Yards and also deposited the earnest money of Rs.8,50,000/-, but the remaining allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merit and the same may be dismissed.

7. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit of the attorney of the complainant Sh. Dhanwant Singh i.e. Ex.CA alongwith certain documents Ex.C1 to Ex.C14 and closed the evidence on behalf of the complainant.

8. Similarly, the counsel for the OPs tendered into evidence affidavit of Jatinder Singh, EO as Ex.OP/A and closed the evidence on behalf of the OPs.

9. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.

10. The learned counsel for the complainant submitted written argument and accordingly, we have gone through the written argument, submitted by the counsel for the complainant and also considered the submission of learned counsel for the OP and find that the complainant alleged that he applied for an allotment of plot of 500 Sq. Yards in a residential New Colony, Surya Enclave Extension, Jalandhar and accordingly, a plot measuring 500 Sq. Yards was allotted to the complainant and a letter dated 18.01.2012/17.02.2012 was received by the complainant and as per terms and conditions of the said letter, para No.3 of the terms and conditions stated that the complainant is required to deposit the installment within six months and in case, the allottee failed to deposit the said installment within a stipulated period, then plot shall be treated as forfeited under the rules and it can be restored only on depositing of penal interest and restoration charges and further, as per Clause 6 as enumerated in the allotment letter that in case, the allottee do not comply with the aforesaid condition within 30 days from the date of issuance of the allotment letter, the plot under reference and if, 1/4^th amount of the price is not deposited within a prescribed period, then the trust shall be authorized to cancel the allotment of the plot without any correspondence and the amount already deposited by the allottee shall be treated to have been forfeited but the aforesaid clause has not been complied by the OP because there is a litigation pending before the Hon'ble High Court in regard to acquisition of the land for curving out a said scheme and due to that reason, the complainant was waiting for reasonable period for any corresponding from the side of the OP whether the stay in regard to dispossession is vacated or not but ultimately, the complainant sought information through RTI Act and found that the stay for dispossession is still continuing, if so then, the OPs are not in position to curve out the plot or hand over the possession of the same to the allottee/complainant and thus, the complainant served a legal notice for return of the amount, deposited by him alongwith interest but no reply has been given and accordingly, the instant complaint filed.

11. On the other hand, the plea taken by the OP is only that the complainant being allottee himself at fault because he has deliberately not deposited the 1/4^th amount of the price within a prescribed period and accordingly, the allotment of the complainant was cancelled and amount already deposited is forfeited and therefore, the complaint of the complainant is not maintainable.

12. Now question before us for consideration is only whether the complainant is at fault for not depositing the amount of 1/4^th of the total price or complainant is well within his right not to deposit the said amount due to the reason that some writ petitions are pending in regard to acquisition of the land for curving out the scheme i.e. Surya Enclave, in question. The OPs have not been able to establish on the file any factum that the major portion of the acquired land i.e. 32 acres out of the 94 acres, had not stayed in regard to dispossession of the land by the Hon'ble High Court, vide order dated 08.03.2011 and during the continuity of that stay order of the Hon'ble High Court, the OP had opened the booking of the plots on 08.08.2011 and it has not been mentioned in the brochure Ex.C2 whether there is any litigation pending, whereas the pendency of the litigation is very established that the stay order was granted by the Hon'ble High Court in regard to dispossession of the original owner, whose land has been acquired by the OP, vide order dated 08.03.2011 and copy of the order is available on the file Ex.C4, Ex.C5, Ex.C6 and further the continuity and pendency of the said writ petition is still pending has been admitted by the OP in an information sought by the complainant under RTI Act and the said information is available on the file Ex.C11, wherein the OP has categorically admitted that the possession of the entire land 94.97 acres is not taken due to stay order and further admitted that the stay order given in CWP is still pending and further admitted that only 10% allottees have deposited the 1/4^th amount and process of their possession is continue. The aforesaid four documents i.e. order of the Hon'ble High Court as well as information sought by the complainant through RTI Act itself established that the land so curved out for planing of the scheme of Surya Enclave Extension is under dispute because the person whose land has been acquired by the OP, have filed different writ petitions before the Hon'ble High Court and wherein in regard to possession, the status quo order has been passed. It is admitted that the writ petition filed in the year 2011 and till 2017, the same has not been decided and moreover, the writ petitions have been filed on 08.03.2011, whereas the booking was opened by the OP on 08.08.2011, during the pendency and stay order of the Hon'ble High Court. So, it means that there is no fault on the part of the complainant for not depositing 1/4^th amount of the total price of the plot, being a reason the complainant has apprehension that the possession of the same could not be delivered to him within a near future and he was waiting for correspondence from the side of the OP that whenever stay is vacated, he will be informed by the OP, then he will deposit the amount alongwith penalty but no intimation was received and there is no possibility for decision of the case in very short span, because due to rush of work, the decision of the writ petition will take long time and why the complainant will wait for such a long time due to the fault of the OP, who has to inform the public in the advertisement as well as in the brochure that there are several writ petitions pending before the Hon'ble High Court regarding the land acquired for curving out Surya Enclave Colony. So, it is clearly a deficiency in service and unfair trade practice on the part of the OPs.

13. In the light of the above detailed discussion, we come to conclusion that the complaint of the complainant succeeds and the same is partly accepted and OPs are directed to refund the already deposited amount by the complainant of Rs.8,50,000/- with interest @ 9% per annum from the date of deposit till its realization and further OPs are directed to pay compensation to the tune of Rs.25,000/- for mental tension and harassment to the complainant and further OPs are also directed to pay litigation expenses to the tune of Rs.10,000/-. The entire compliance be made within one month from the date of receipt of the copy of order. Complaint could not be decided within stipulated time frame due to rush of work.

14. 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 Parminder Sharma Karnail Singh

17.10.2017 Member President