BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.97  of 2022

      Date of Instt. 24.03.2022

      Date of Decision: 01.03.2024

Pawan Kumar aged 59 years S/o Sh. Darbari Lal, R/o H. No.1122, Basti Jodhewal Gujjran, Opp. Punjab National Bank Ludhiana-141007, Punjab.

..........Complainant

Versus

Jalandhar Improvement Trust, Model Town Road, Jalandhar City through its Executive Officer.

….….. Opposite Party

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)

                   Sh. Jaswant Singh Dhillon       (Member)                                

Present:       Smt. Harleen Kaur, Adv. Counsel for the Complainant.

                   Sh. Brijesh Bakshi, Adv. Counsel for OP.

Order

Dr. Harveen Bhardwaj (President)

1.                The instant complaint has been filed by the complainant, wherein it is alleged that the complainant attracted and allured by OP venture for development of Surya Enclave Extension, published and advertised by OP to provide shelter to needy public with ultra-modern facilities and amenities with high quality and standard UNDER 94.97 Acre Development Scheme in Surya Enclave Extension Jalandhar, applied for plot also promoted by various nationalized banks. The complainant submitted application No.077442, on prescribed form to OP for plot measuring 100 Sq. ft. along with 10% earnest money of Rs.1,70,000/- in cash along with all the requisite documents completed and complied with all the requirements. The complainant had applied for the plot in the year 2011 after taking the said loan. The complainant was allotted plot No.158-C, under Vikas Scheme 94.97 Acre (Surya Enclave Extension), Jalandhar, as per allotment letter bearing no.JIT/2744 dated 23.12.2011, in lucky draw held on 04.11.2011 at the rate of Rs.17,000/- per sq. ft totaling to Rs.17,00,000/- approved by resolution no.335 dated 08.11.2011further approved by government vide memo no.8/31/11(9)-1SS2/3213 dated 07/12/2011. To the extent that after period of 6 months if the allottee failed to pay the installment the plot shall be confiscated by the OP. In the event of confiscation of plot on default the re-allotment will be done to the allottee only after the payment of interest as penalty, 20% restoration charges and 6% penalty on the amount shall be calculated as per governmental instructions/directions from time to time. The site was to be developed within in 2½ years and the possession of the plot as per the allotment letter could be taken after the execution of the agreement of sale, which was to be executed within 30 days of the allotment letter and the same was executed on 04.11.2011. The complainant has deposited all the requisite papers for the registration of the application with the necessary fee and other formalities and payment were completed within the stipulated period. The only formality which was to be completed was to give the possession of allotted plot duly completed with all the amenities and ultra-modern facilities as advertised and assured in the, prospectus, to augment the sales of the said plots to make money and profits by the OP. The complainant paid the whole purchase price of plot to OP as per the allotment letter dated 23.12.2011 even prior due dates. The total amount paid was Rs.19,60,200/- to the OP. Even though no extra charges should have been charged due to before time payment still OP has charged interest.   After the complainant had paid the amount by installments as stated supra, it was found that OP had deceived the complainant by misleading and fraudulent advertisement since the allotment of the plot was fake, the area where the plots has been allotted is uninhabitable and unlivable. Neither the OP has developed the site nor offered possession even after lapse of almost 11 years. The complainant was shocked to see the terrible condition on the spot. Photographs of the area are on record from which the condition of hygiene and amenities is quite evident, newspaper cuttings highlighting the condition of the area. There are no demarcations made by the department and plots cannot be identified. There are no motorable roads, water and sewage pipeline have not been connected to the main line thus making them unusable. Even the main connecting road to the city has not been completed till date and also no electricity connection is available. The condition further worsens during the rainy season as water clogging take place leading to elaborate weed growth in the area. The areas around are being used as a dumping ground and emanates unbearable stink. There is no possibility of carrying out construction in the said area, a total hazard medically also. The OP has no plausible explanation what so ever in respect thereto it has been a long period since the date of allotment and the OP doesn't seem to be serious on the front of fulfilling its promised advertised plots. Even after protracted follow up and lapse of 9 years from the date of allotment OP was unable to give any valid and satisfactory reason and justification for unpardonable delay in making the area habitable and delivery of possession as per agreed amenities and facilities as assured to the complainant, till date tantamount to deceptive and unfair trade practice deficiency in rendering service and deceiving the complainant by not giving the possession the plot as per the agreed terms and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OP be directed to return/refund Rs.19,60,200/- deposited by the complainant with interest @ 18% per annum from the date of deposit upto the date of actual payment to the complainant. Further, OP be directed to pay a compensation of Rs.5,00,000/- for causing mental tension and harassment to the complainant and Rs.25,000/- and Rs.15,000/- as litigation expenses.   

2.                Notice of the complaint was given to the OP, who filed reply and contested the complaint by taking preliminary objections that the above noted complaint is not maintainable against the answering respondent, in the present form under the law. It is further averred that  the present complaint is time barred. The allotment was made 23.12.2011 and the possession could be taken after entering into sale agreement within 30 days from allotment. But the complainant failed to do so. The complainant failed to take possession and till date before filing of the present complaint had no objections/correspondence with JIT/OP and now the present complaint is time barred. It is further averred that the present complaint is an abuse of process of law. No actionable claim has ever arisen to the complainant to file the present complaint against the OP. It is further averred that the complainant is barred by his own act, conduct, delay and laches and negligence from filing the present complaint case and claiming the relief as prayed in the present complaint. It is further averred that the complainant is guilty of concealment of material facts and has not approached the Court with clean hands and as such is not entitled to any relief from this Court. It is further averred that the complainant has got no cause of action to file the present case against the OP. On merits, the factum with regard to allotment of the plot No.158-C to the complainant and payment to the same is admitted, but the other allegations as made in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merits, the same may be dismissed.

3.                Rejoinder to the written statement of the OP filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement. 

4.                In order to prove their respective versions, both the parties have produced on the file their respective evidence.

5.                We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by the counsel for the complainant very minutely.

6.                It is admitted and proved fact that the plot No.158-C of the development scheme 94.97 acre known as Surya Enclave Extension was allotted to the complainant, vide allotment letter dated 23.12.2011, which has been proved as Ex.C-3/OP-1. The complainant has proved on record the receipts showing the payment of the plot made by the complainant to the OP. The receipts and draft have been proved as Ex. Ex.C-5 to Ex.C-10. The contention of the complainant is that despite having complied with all the requirements and full payment made by the complainant, the construction work was not carried out by the OP nor the possession was offered even after lapse of almost 9 years. Photographs of the area and newspaper cuttings, which highlighted the conditions and progress in the area has been proved on record as Ex.C11 to Ex.C18.

7.                The contention of the OP is that the present complaint is time barred. The allotment was made on 23.12.2011 and the possession could be taken after entering into sale agreement within 30 days from allotment. But the complainant failed to do so. The complainant himself has failed to take possession, but this contention is not tenable as the news publications and photographs have been proved on record by the complainant, which are from different newspapers and these are from 2020 onwards, which has been proved as Ex.C-11 to Ex.C18. All these news publication show that the facilities and development in the Surya Enclave Extension is incomplete, meaning thereby there is no development at all. Vide Ex.O-2 the OP prepared the site plan for possession at site. Letter dated 03.10.2016 was issued to the complainant to take possession at site, but the OP has not produced on record any photograph or document from where it can be ascertained that the portable roads, water/sewerage and street lights etc. have been completed and the project was ready for taking possession and residing there. It has been held by the Hon’ble State Commission, in “Manoj Bagroy Vs. M/s N. H. Matcon” in consumer complaint no.429 of 2019, decided on 07.01.2020 that even if the possession is taken by the consumer, it would be a incomplete and invalid delivery of possession for the want of the amenities. It was observed by the Hon'ble State Commission in the above said case that the OP had not obtained the occupation certificate and completion certificate from the competent authorities to enable them to deliver the complete and effective possession to the allottess. Until and unless they obtain such certificate, it cannot be held that complete possession has been delivered and there is continuous cause of action in favour of the complainant till the obtaining of such certificates by the OP and the complaint filed by the complainant was held to be within limitation.  

8.                The complainant has alleged that the facilities and amenities were not complete and the entire amount was paid by the complainant. As per the allotment letter, the conditions were not complied with by the OPs as the plots were not ready within prescribed period, therefore the fault is on the part of the OP. The OP has alleged that the possession could be taken after entering into sale agreement within 30 days from allotment, but the complainant failed to do so. If he does not comply with the provisions of sale agreement or do not take possession, then the JIT was within its rights to cancel the allotment and forfeit all deposited amount within 30 days from the allotment, then it is the duty of the OP to send a notice to the complainant to take the possession, if the complainant does not turn up the OPs can cancel the allotment, but the OP failed to send any notice nor the allotment was ever cancelled. The OP has not produced the occupation and completion certificate duly issued by the competent authority showing that the basic amenities have been duly provided at the site. Even otherwise, Completion Certificate, as envisaged under section 14 of the Punjab Apartment and Property Regulation Act, 1995 (in Short "PAPRA") is the most essential document, which should have been produced with regard the matter in issue but the same has not been produced by the OP to prove that Plot in question as well as basic amenities in the entire complex have been completed in all respects. In such circumstances, the complainant is entitled for the relief.

9.                In view of the above detailed discussion, the complaint of the complainant is partly allowed and OP is directed to refund the amount of the plot deposited by the complainant with interest @ 9% per annum from the date of making deposits till its realization. Further, OP is directed to pay a compensation to the complainant for mental agony and harassment caused to the complainant, to the tune of Rs.30,000/- and litigation expenses of Rs.5000/-. The entire compliance be made 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     

01.03.2024         Member                          Member           President