BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.267 of 2020
Date of Instt. 04.09.2020
Date of Decision: 14.05.2024
Shiv Kumar Yadav aged 52 years S/o Sher singh resident of House No.6, Cantt Board, Otrs, Mool Raj Road, Jalandhar Cantt-144005 District Jalandhar, Punjab.
..........Complainant
Versus
1. The Jalandhar Improvement Trust through its Chairman.
2. The Executive Officer, Jalandhar Improvement Trust near SkyLark Chowk, Jalandhar City.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. BKS Chhabra, Adv. Counsel for the Complainant.
Sh. Brijesh Bakshi 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 plots with ultra modern facilities with quality applied for plot of 100 square yards in the general category as the complainant want to construct a house at the said plot and shift to the said area and the same was proposed and promised to be approved area with wide roads, big parks and amenities like domestic gas pipeline of a govt. approved scheme. The complainant applied for a plot and on a draw held on 19th of May 2016 and information regarding allotment letter was given by the OPs vide letter no.JIT/884 dated 06/06/2016 with terms and conditions to the complainant. The complainant submitted application No.091083 on prescribed form along with sum of Rs.1,70000/- as earnest money to OP along with all the requisite documents and completed and complied with all requirements as per the terms and condition stated by the OP. The complaints was allotted plot no.204-C in Vikas scheme 94.97 acre in Surya Enclave Extension dated 06-06-2016 in lucky draw dated 19.05.2016 at red Cross Bhawan, Jalandhar. The Information Regarding the Allotment Of plot was given by OP, vide its Letter No.JIT/884 dated 06-06-2016, to the complainant. The Complainant has deposited the entire requisite fees for the registration of the application with the necessary fee and other formalities 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. The complainant paid the whole purchase price of plot in the sum of Rs.17,39,750/- to OP as per the allotment letter. The complainant had deposited sum of Rs.15,69,250 vide draft No.483218 dated 05/07/2016 in the name of Chairman Jalandhar Improvement Trust. The complainant had also deposited sum of Rs.500/- as Mortgage charges vide serial No.65426 dated 04/07/2016 to the OP. The complainant is the senior citizen of India and is an ex-serviceman and surviving with two children and had taken loan from State Bank of India, Civil Lines Jalandhar for the sum of Rs.11,90,000/- for the purchase of the plot C in Vikas scheme 94.97 acre in surya enclave extension and still paying EMI to the bank from his hard earned money. The OP had not given the possession of plot to the complainant even after prostrated follow up and lapse of about more than three years from date of allotment. OP was Unable to give any valid reason and justification for unpardonable delay and non delivery of possession agreed and assured to the complainant, till date. Delay In Delivery Of possession per se attract Odium Of deficiency, Negligence and unfair and deceptive trade practice 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 return/refund Rs.18,39,750/- paid/deposited by complainant along with interest @18% p.a. from deposit up to date of actual payment to the complainant. Further, OP be directed to pay a compensation of Rs.50,000/- as compensation for causing mental tension and harassment to the complainant and cost of proceeding of the complaint reckoned toRs. 10,000/- to the complainant and grant Rs.1000/- expenses on the account of fee of Rs.1000/- paid for making complaint, besides postal expenses and expenses of copying, typing and stationary etc and processing fees of State Bank of India home loan against the said plot Rs.4789 + 1500 i.e. Rs.6289/-.
2. Notice of the complaint was given to the OP, who appeared through its counsel and filed its 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.204-C of the Development Scheme 94.97 Acre known as Surya Enclave Extension was allotted to the complainant vide allotment letter no.JIT/884 dated 06.06.2016 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/lump sum. 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 13, 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. It is further averred that consequent possession nor raised any objection of development etc and any such objection at this stage is clearly malafide and not maintainable. As regards the facilities and amenities the same are completed since long. However, JIT has never refused to give possession 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 averred that that there is no provision in the terms and conditions of allotment letter or sale agreement that in case of the successful applicants/allottees 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 Forum. There is no provision in Punjab Town Improvement 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 JIT. The JIT 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 her own act, conduct, laches and negligence from filing the present complaint 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 misstatement and has not approached this Forum with clean hands and deserves no relief from this Forum. 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. On merits, the factum with regard to allotment of the plot and payment to the same 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 case file as well as written arguments submitted by counsel for the complainant very minutely.
6. It is admitted and proved fact that the plot No.204-C of the development scheme 94.97 acre known as Surya Enclave Extension was allotted to the complainant, vide allotment letter dated 06.06.2016, which has been proved as Ex.C-1/OP-1. The complainant has proved on record the receipts and draft showing the payment of the plot made by the complainant to the OP. The receipts and DD have been proved as Ex.C-2 and Ex.C-5. The contention of the complainant is that despite having complied with all the requirements and full payment made by the complainant, the possession was not offered even after lapse of more than 3 years. In his written arguments, the complainant has submitted the newspaper cuttings, which highlighted the conditions and progress in the area.
7. The contention of the OP is that the complainant failed to enter into sale agreement regarding the said plot even till date and in the absence of entering into sale agreement no rights accrued to him viz a viz the plot in question, 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-10 to Ex.C14. 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. 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.
8. The complainant has alleged that the OP had not given the possession of plot to 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 as per Clause (5) of the allotment letter, but the complainant failed to do so. If the complainant 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 for execution of the sale agreement, the OPs can cancel the allotment, but the OP failed to send any notice nor the allotment was ever cancelled. Therefore, this argument is not tenable.
9. 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. It has been held by the Hon’ble Supreme Court, in a case titled as ‘Samruddhi Co-Operative Vs. Mumbai Mahalaxmi Construction’ that ‘failure to obtain occupancy certificate is a continuing wrong and the complaint is not barred by limitation rather it is deficiency in service and complaint is maintainable’. It has been held by the Hon’ble State Commission, (U.T.) Chandigarh, in a case titled as ‘Sandeep Baweja vs Chandigarh Overseas Pvt. Ltd.’ that ‘Delay in possession-refund claimed-Held-it is settled law that when there is a material violation on the part of the builder, in not handing over possession by the stipulated date, the purchaser is not bound to accept the offer even if the same is made at a belated stage.’ In such circumstances, the complainant is entitled for the relief.
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 the plot paid/deposited by the complainant 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 and in case, the same is not done within 45 days, the OP shall be liable to pay additional interest @ 3% per annum to the complainant, on the amount of the Flat deposited by the complainant. 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 Dr. Harveen Bhardwaj
14.05.2024 Member President
