BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.371 of 2021

      Date of Instt. 28.10.2021

      Date of Decision: 24.04.2023

Rajesh Arora, son of Sh. Surinder Kumar, resident of Ward No.9, Post Office & Tehsil Dera Baba Nanak, District Gurdaspur.

..........Complainant

Versus

1.       The Jalandhar Improvement Trust, Jalandhar, through its         Chairman/Executive Officer.

2.       The Chairman/Executive Office, Jalandhar Improvement Trust,         Jalandhar.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)

                   Sh. Jaswant Singh Dhillon       (Member)                                

Present:       Sh. Balraj Sharma, Adv. Counsel for the Complainant.

                   Sh. Brijesh Bakshi, Adv. Counsel for OPs.

Order

Dr. Harveen Bhardwaj (President)

1.                The instant complaint has been filed by the complainant, wherein it is alleged that the OPs had floated a scheme known as Surya Enclave Extension (94.97 Acre) Development Scheme and in that scheme, the complainant had applied for a plot measuring 153 Sq. yards. In a draw held on 19.05.2016, the complainant was allotted the plot number 96-C measuring 153 Sq. yards in General category vide the allotment letter no.JIT 915 dated 07.06.2016. The complainant had deposited an earnest money of Rs.2,60,100/- + taxes + other charges along with application and after allotment made payment of total sale consideration of Rs.26,01,000/- within 30 days of the allotment by availing a loan of Rs. 18,00,000/- from State Bank of India, Jalandhar. The complainant has been paying interest to his banker for the loan amount raise by him which comes around to be Rs.6,60,000/- till the filing of the compliant. The complainant is also entitled to get interest on the amount paid by him out of his own pocket. The complainant had made total payment of the sale consideration believing in good faith that the opposite parties shall be developing the scheme within the stipulated time and that the complainant shall get the possession of the plot in the stipulated period after getting the amenities provided in the scheme area by the opposite parties in fully developed surrounding as promised and stipulated under the terms & conditions of the allotment letter. The complainant has been living on rent in the adjoining Guru Gobind Singh Avenue and Surya Enclave areas as the complainant has got a deep liking for the developed colonies in the vicinity of the Surya Enclave Extension Scheme. The complainant has been waiting for the development of the scheme area and for providing of amenities by the OPs in the scheme area and at the site of the plot of the complainant. However, to the dismay and surprise of the complainant, the OPs have failed to develop the scheme area and the area surrounding the site of plot of the complainant. The complainant had visited the office of the OPs number of times and the OPs have been assuring of development of the scheme area as well as surrounding area of plot of the complainant. In the month of June 2021, it came to the notice of the complainant that the OPS are no longer in a position to develop the questioned scheme and also not having financial & technical competence to develop the scheme even after five years of allotment of the plot to the complainant. It has also been noticed by the complainant that for non-development of the scheme area the OPs had to refund the amounts of different allottees of the same scheme as per orders of the Hon'ble Courts & Forums as the OPs had violated the norms, rules, circulars and orders of the Hon'ble High Court. It has further come to the notice of the complainant that the OPS have not been able to obtain the possession of the areas surrounding the site of plot of the complainant as some stay order has been obtained by the original occupants of the land. The complainant has come to know that the Hon'ble Punjab & Haryana had passed an order of maintaining status-quo regarding possession of the original land holders vide order dated 08.03.2011. It has further come to the notice of the complainant that the OPs were not competent and entitled to frame the said development scheme, invite applications and make allotment to the complainant and other allottees. Further the OPs have indulged in unfair trade practice & deceptive practice by promoting the sale of the plot and further getting amounts of sale consideration deposited from the complainant and other allottees when the OPs knew that the OPs were not in a position to provide amenities and develop the site of the plot in question and to make it habitable within the stipulated time of three years and now even after five years. The OPs have unduly got deposited total sale consideration from the complainant who had to raise a loan from SBI to make the payment of total sale consideration with the hope that he will be getting the possession of the plot within the stipulated time. The OPs have thereby indulged in deceptive & unfair trade practices and have caused a wrongful loss to the complainant who on the one hand had to raise a loan and pay installments thereof over the amount he had deposited towards the total sale consideration and on the other hand he had to reside in a tenanted accommodation by paying monthly rents as he has not been able to get the possession of the plot and raise his house over the same due to omissions & defaults on the part of the OPs and on account of the deceptive and unfair trade practice adopted by the public bodies like the OPs. As per the circulars issued by Govt. of Punjab, the OPs were not entitled to frame this scheme and further not to receive amounts of sale consideration from the complainant when the possession of scheme area was not with the OPs and they were not able to develop the scheme. The purpose of applying for the said plot by the complainant seemed to have been rendered frustrated by such non-development of the scheme land and the plot and the office of the OPs has not been in a position to handover the possession of the plot to the complainant as stipulated in the terms of the allotment letter. The OP No.1 seems to have floated the said development scheme in contravention of the Govt. instructions and byelaws without first having obtained the possession of the scheme land and unduly enriched itself by getting huge amounts from the allottee like the complainant. The complainant has been unduly charged with the price of the plot and other charges, while in fact the possession of the scheme land as well as the plot in question was not with the OP No.1. The OP No.1 could not develop the scheme land for want of possession and then could not provide basic amenities like roads, sewerage, sanitation & water supply etc. and thus has not been able to provide effective possession of the site of the allotted plot to the complainant. Due to the gross negligence the and deficient services on the part of the opposite parties in non-development of the scheme area and non-handing over the possession of the allotted plot, the complainant vide his legal notice dated 28.07.2021 surrendered the allotted plot to the opposite parties and demanded refund of the total amount of sale consideration along with interest and compensations. The notice was duly served upon the OPs, but OPs failed to refund the due amount of the complainant and have been illegally with holding it. The complainant made a demand with the OPs for the repayment of the amount of Rs.26,01,000/- by way of legal notice dated 28.07.2021 served upon the OPs by registered post, but the OPs failed to make payment of the amount in question within stipulated period of notice and as such necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to refund of the total paid sale consideration of the plot in question i.e. Rs.26,01,000/- with interest @ 12% per annum and further to pay an interest paid on the amount of loan of Rs.18,00,000/- from the date of loan disbursement till filing of the complaint @ 15% i.e. Rs.6,60,000/- and further to pay total amount of rent paid Rs.5,12,000/-. Further, OPs be directed to pay compensation and damages to the tune of Rs.10,00,000/-, in total Rs.64,11,630/-.

2.                Notice of the complaint was given to the OPs, 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 an abuse of process of law. No actionable claim has ever arisen to the complainant to file the present complaint against the OP. The plot in question i.e. Plot No. 96-C of the Development Scheme 94.97 Acre known as Surya Enclave Extension was allotted to the complainant vide allotment letter no. JIT/ 915 dated 07.06.2016 and the complainant received and acknowledged the same. As per the terms and conditions of the allotment forming a binding contract among the parties it was clearly mentioned that the allottee has to make the payment of sale price as per the agreed installment payment schedule. As per clause 2 to 4 the interest, penal interest and other charges on account of payment of installments/delayed payment etc. were duly conveyed and agreed by allottee. It was clearly mentioned in Clause-5 that the allotee has to enter into sale agreement of the plot within 30 days and as per clause-6 if he does not do so then the JIT shall be within its rights to cancel the allotment and forfeit all deposited amount. It was further clearly mentioned that the possession of the Plot can be taken after entering into sale agreement with the Trust. As per clause-12 the plot was offered as it is as per site and further it will not be the responsibility of JIT to level the uneven site. As per clause-13 the allottee is bound by Punjab Town Improvement Act 1922 Rules Bylaws etc. Thus the terms and conditions were very clear and it was incumbent upon the allottee to enter into sale agreement of the plot and to deposit installments in time and take possession at his own responsibility. But the said allottee failed to enter into sale agreement regarding the plot in question within the time as provided under the Allotment letter and thus became defaulter. However, so the complainant belatedly executed the sale agreement dated 19.07.2017. Thereafter the complainant did not seek possession as per allotment conditions. But the complainant did not approach the Jalandhar Improvement Trust to take possession whereas as such it was to be considered that he had the possession of the plot especially after entering into sale agreement of the said plot. However, suddenly vide his legal notice dated 28.07.2021 the complainant demanded refund of interest against the allotment terms and conditions and rather further raised wrong contentions about the lack of facilities etc and made other ill founded baseless excuses and sought basic facilities along with possession at site. In fact it was in his own default that the complainant did not seek possession of the plot and rather failed to receive the same or to take possession at site. Thus it is clear that the complainant failed to seek possession or take possession after execution of sale agreement although the same was readily available for handing over. It is noteworthy that it is for the allottee to approach the Jalandhar Improvement Trust and seek possession and it is not the liability or responsibility of department/Jalandhar Improvement Trust to trace out the people and give possession to them. When any allottee does not approach the department/Jalandhar Improvement Trust to take possession then it is presumed that the said allottee had the possession and the said person cannot blame the Jalandhar Improvement Trust for their own defaults. As per the allotment terms and conditions itself allotee/complainant never approached the OP for taking possession, the complainant was well aware of the plot details, location, scheme plan etc and all facts and circumstances but even after that he never approached the JIT to seek possession although as yet the JIT never refused possession to him. From the said date of Sale Agreement till 28.07.2021 when he got issued the alleged false and frivolous legal notice the complainant had never sought possession nor raised any objection of development etc and any such objection at this stage is clearly malafide and not maintainable. The Legal Notice and false claims made there under as well as the present complaint are only to cover up his own defaults by the complainant. The complainant woke from his deep slumber and got issued the said legal notice only to wriggle out of his liability to pay non construction charges as per the allotment terms and conditions. As regards the facilities and amenities the same are completed since long. As submitted above Improvement Trust had throughout been in a position to deliver the possession of the plot in question and never refused to give possession to the complainant but he himself never took the same.

                   Later on now, in view of the public interest and convenience as per Govt. orders the Railway Station of Jalandhar is being modernized by the authorities. For easing the traffic and public convenience the Department has planned a second approach and entry gate of railways from the 94.97 Acre Development Scheme and for the purpose of the aforesaid entry a 80 feet approach Road is to be constructed and on account of the same the whole block of plots is to be shifted and as such under Section 43 of the Act the case has been sent to the Government. As soon as the matter is finalized by the Government then without any delay or ado the OP is ready to deliver the possession of the alternative or the shifted plot to the complainant. It is further averred that the present complaint is false and frivolous even to the knowledge of the complainant and is not maintainable against the OP. It is further pertinent to mention that there is no provision in the terms and conditions of allotment letter or sale agreement that in case of the successful applicants/allotees and transferees the surrender of the allotted plot can be made or the refund of sale money deposited or payment/ part payment of the sale price can be refund to allottee/transferee. Even otherwise the complainant is not entitled to any relief from this Honb'le Forum. There is no provision in Punjab Town Improvement Act (hereinafter called ‘Act’), Rules or Government instructions for refund of sale money. 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. As per the terms and conditions of the allotment letter there is no default in the performance of the Jalandhar Improvement Trust. The Jalandhar Improvement Trust has never defaulted in performing any of its obligations under the allotment terms and conditions/rules etc. It is further averred that the complainant is barred by his own act, conduct, laches and negligence from filing the present complaint and claiming the relief as prayed in the present complaint. The allotment was made in 2016 and the present complaint filed in 2020 is barred by limitation. It is further averred that the Complainant is guilty of concealment of material facts and misstatement and has not approached this Commission with clean hands and deserves no relief from this Commission. It is further averred that the OP is a statutory body duty bound under the Act to seek the compliance of the statutory provisions and rules as per law and as per the Act and it cannot be restrained from seeking the deposit of due amounts and compliance of other statutory conditions pertaining to the allotments in its development schemes. The allotments are subject to the provisions of the allotment letter terms and conditions, clauses of sale agreement and the Act, rules and other relevant Government instructions and the allottees are also bound by the same. The complainant/allottee/transferee are bound not only by the terms and conditions but also by the affidavits and undertakings furnished by them. As such the present complaint is futile and infructuous and thus liable to be dismissed. On merits, the factum with regard to allotment of the plot to the complainant 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.

3.                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. 

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 written arguments submitted by the counsel for the OPs as well as case file very minutely.

6.                It is admitted and proved fact that the plot No.96-C of the development scheme 94.97 acre known as Surya Enclave Extension was allotted to the complainant, vide allotment letter bearing No.JIT/915 dated 07.06.2016, which has been proved as Ex.C-2/OP-1. The complainant has proved on record the receipts showing the payment of the plot made by the complainant to the OP including the earnest money. The receipts have been proved as Ex.C-4 & Ex.C-5, which includes earnest money and mortgage charges. The complainant availed a loan of Rs.18,00,000/- from State Bank of India, Jalandhar, which is evident from Ex.C-6/Arrangement Letter. The contention of the complainant is that despite taking the entire money from the complainant, the possession has not been delivered nor the amenities have been provided to the complainant as was agreed vide agreement to sell Ex.C-3.

7.                The counsel for the OP, on the other hand has argued that the sale agreement was to be entered into between the allottee. It was incumbent upon the allottee to enter into sale agreement of the plot and to deposit installments in time and take possession at his own responsibility. But the said allottee failed to enter into sale agreement regarding the plot in question within the time as per provisions of clause-13 of Punjab Town Improvement Act, 1922, By Law and thus became defaulter He has further submitted that as per the terms and conditions of the agreement, the allottee was to raise construction on the plot within 36 months. The formalities for handing over the possession were completed, but the complainant did not approach the OPs to take possession from the JIT nor any request was ever made by the complainant to the OP for handing over the possession to the complainant. The OPs have never denied the possession to the complainant. In order to avoid the non-construction charges, the present complaint has been filed by the complainant as he has not fulfilled the terms and conditions of the allotment letter. He has submitted that demarcation has already been done and due to the fault of the complainant the possession has not been handed over to the complainant.

8.                The contention of the OP is that it was incumbent upon the complainant to enter into sale agreement of the plot and take possession at its own responsibility, but this contention is not tenable. As per the record, the complainant has proved on record the receipts showing that the payment was made by the complainant of installments. It has also been proved on record by the complainant vide Ex.C-6 that he obtained the loan from the bank to make the payment to the OP and the OP gave permission to the complainant to mortgage his plot No.96-C for the purpose of raising loan from the bank. So, the contention that the installments were not deposited by the complainant is also not tenable. It was the duty of the OP to raise construction within 2 ½ years of the allotment of the plot. As per letter Ex.C-11, which is the letter/notification of the government that the improvement trust shall auction the site only when they are sure that they are in a position to deliver the possession of the site to the purchaser. It has further been mentioned in this letter that a notice for the delivery of possession must be issued to the purchaser within a period of 30 days of the allotment/acceptance of bid indicating the time at when he should be present for taking over the possession. The period of delivery of the possession to be given in the notice should not exceed 30 days. It has specifically been mentioned that the notice should be issued by the Trust, if the purchaser does not turn up, it would be presumed that the possession has been delivered to the allottee. From this letter, two points are clear that the OP should be clear that they are owner in possession of the land and the notice is to be issued to the allottee by the Trust to take the possession. The agreement to sell admittedly was not executed within 30 days as per the condition of the allotment letter, but the same was executed in the year 19.07.2017 as per Ex.OP-2. The contention of the complainant is that the amenities were not complete nor construction was complete nor the complainant was sure about the ownership of the Trust. The OPs have not produced on record any document to show that they were owner in possession of the plot/site and they are in a position to deliver the possession. The facts are very much clear from the judgment passed by the Hon'ble National Commission, in a case titled as ‘JIT Vs. Munish Dev' that the scheme over an area of 94.97 acres of the land for the allotment of residential plots in Surya Enclave Extension was under consideration before the Hon’ble Punjab & Haryana High Court. The Hon’ble Punjab & Haryana High Court granted the status-quo qua regarding possession was granted by the Hon’ble Punjab & Haryana High Court and till 2015, the litigation was pending before the Hon’ble Punjab & Haryana High Court. This clearly shows that the ownership and possession of the site was a question mark and no certificate has been produced on record by the OP to show that they are owners in possession of the site and they were in a position to deliver the possession of the same. As per the letter Ex.C-9, no notice was ever issued to the complainant to take the possession. No time was ever fixed by giving the opportunity to the complainant to take the possession and this has also not come on the record that despite notice the complaint did not turn up, therefore it cannot be presumed that the complainant took the possession of the site. The OP has not produced on record any document to show that the complainant has taken over the possession of the flat in dispute. This clearly shows that the possession was never taken by the complainant, therefore, the plea of the OP that the complainant was to raise the construction within 36 months of the allotment cannot be said to be correct as the construction can be raised only after taking the possession. This finds support from the plea/defence of the OP only. In the written statement, in para No.2 of the preliminary objections it has been mentioned that in view of the public interest and convenience as per Govt. orders the Railway Station of Jalandhar is being modernized by the authorities. For easing the traffic and public convenience the Department has planned a second approach and entry gate of railways from the 94.97 Acre Development Scheme and for the purpose of the aforesaid entry a 80 feet approach Road is to be constructed and on account of the same the whole block of plots is to be shifted and as such under Section 43 of the Act the case has been sent to the Government. This clearly shows that the possession is not with the OPs and now they are shifting the whole block of plots to some other place and alternative plots are being allotted to the allottees and to deliver the possession of that alternative plots. This clearly shows that the OPs are not in possession of the property and the same is being occupied and modernized by the Railway Authorities. There is no document on the record to the show that the OPs have been directed by the Railway Department or the government to take the possession from the allottes or to take the consent from the allottees regarding the allotment or delivery of possession of alternative plots nor any notification has been proved by the OPs to show that these plots alleged to be in possession of the complainant or other allottees are being taken by the OP as per any letter of the government.

9.                So far as the completion of the amenities is concerned. It is proved that only symbolic possession has been given without amenities and without obtaining completion/occupation certificate. 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

10.              In view of the above detailed discussion, the complaint of the complainant is partly allowed and OPs are directed to refund the amount of Rs.26,01,000/- with interest @ 9% per annum from the date of making deposits till its realization. Further, OPs are 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.

11.              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     

24.04.2023         Member                          Member           President