BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

 Complaint No.375 of 2020

      Date of Instt. 26.10.2020

      Date of Decision: 08.11.2023

Vishal Khurana aged about 47 years son of Sh. N. K. Khurana resident number W. E. 7, Bazar Sheikhan, Ali Mohalla, Near Mai di Dairy, Jalandhar.

..........Complainant

Versus

1.       The Chairman, Jalandhar Improvement Trust, Jalandhar.

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

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Sh. Jaswant Singh Dhillon       (Member)                                

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

                   Sh. Brijesh Bakshi, Adv. Counsel for OPs No.1 & 2.

Order

Dr. Harveen Bhardwaj (President)

1.                The instant complaint has been filed by the complainant, wherein it is alleged that in the year 2016 the OPs have floated a development scheme known as Surya Enclave extension 94.97 acres scheme for allotment of free hold residential plots for the general public. As per the terms and conditions of the said scheme, the complainant also applied for the same vide application No.092718 dated 13.05.2016 and initially deposited an application fee of Rs.2,60,100/- as earnest money i.e. 10% of the total amount with the OPs by taking a loan from Punjab National Bank, Civil Lines Jalandhar. As such the complainant has been allotted a plot bearing No.90-C in the said scheme the OPs vide their allotment letter number JIT/935 dated 7.6.2016 for a total sale consideration of Rs.26,01,000/- @ of Rs.17,000/- per Sq. Yard). As per Clause No.5 of the allotment letter the OPs is required to execute an agreement to sell with the complainant/vendee/allottee within 30 days from the date of issuance of allotment letter dt.07.06.2016. Similarly as per clause No.7 of the allotment letter, the OPs are required to make development of all the basic facilities like, water supply, sewerage, Roads, Link roads, electricity supply and street lights etc. at the spot along with the specific demarcation of the plots by the opposite parties within a period of 2% years from the date of issuance of allotment letter. And further as per clause No.7 the vendee can obtain the possession of the plot from the OPs after execution of agreement to sell with the OP. After the issuance of the allotment letter, as per clause No.1 & 6 and 17 of the allotment letter, the complainant further deposited an amount of Rs.5,47,210/-with the OPs through demand draft No.437669 dt.04.07.2016 drawn on Canara Bank, Boota Mandi, Jalandhar which includes the share of the total sale consideration of the plot and other additional charges including cess charges, site plan fee and agreement fee etc. etc. in favour of the OPs, vide receipt bearing No.65476 dt.05.07.2016 for Rs.5,47,210/-. As stated above the OP is required to execute the agreement to sell with the complainant within 30 days but in-spite of receipt of huge money to the tune of Rs.8.07,310/- i.e. Rs.5,47,210/ + Rs.2,60,100/-) the OPs failed to execute any agreement to sell with the complainant in-spite of his repeated requests and visits of complainant in the office of OPs. In the meanwhile, the second installment of the fee also becomes due but no such agreement has been executed by the OP with the complainant in-spite of his repeated requests. However in order to comply with the terms and conditions on the part the complainant he further deposited a sum of Rs.4,87,666/- along with interest with the OPs vide demand draft No.464662 dated 21.02.2017 drawn on State Bank of India, Commercial Branch, Jalandhar as per the terms and conditions of the allotment letter and a receipt bearing No.0067307 dt.22.02.2017 for Rs.4,87,666/- to this effect was also issued by the OP. Not only this the complainant has also got sanctioned a loan of Rs.10,50,000/- from State Bank of India, RACPC, Jalandhar for the payment of balance installments to the OPs. In-spite of receipt of huge money to the tune of Rs.12,94,976/- from the complainant, and passing away of more than 4-5 years from the date of allotment letter, the OPs failed to adhere to the terms and conditions of their own allotment letter and did not execute any agreement to sell with the complainant in-spite of repeated requests nor, the OPs make any such improvement at the spot as assured by them in clause No.7 of their allotment latter. Moreover, there was no demarcation of the plots at the spot. Though per clause No.7 of the allotment letter, the OPs assured to the complainant that all the development facilities like, water supply, sewerage, Roads, Link roads, electricity supply and street lights with demarcation of the plots shall be provided by the opposite parties to the vendees/complainant within a stipulated period of 2½ years and further assured that the vacant physical possession of the plot Shall also be delivered to the complainant after execution of agreement to sell. But since no such agreement was executed by the OPs hence there seems no possibility for delivery of possession of the plot to the complainant. Moreover, there has been lot of encroachments made by strangers at the spot and huge dumping of waste material and garbage and slaughter house near the allotment site and in the surrounding areas of the place of allotment but the OPs failed to get vacated the said encroachments and further failed to make any development at the spot as assured by them. Rather the OPs remained silent and slept over the matter for years and did not make any effort to get the said encroachment removed from the spot. The OPs also failed to make any improvements and to deliver the possession of the plot to the complainant. The complainant number of times approached to the OPs and requested them to making of development in the area of allotment as assured by them and to demarcate his plot and to deliver the vacant possession of the plot in the question to him after removing the illegal encroachments at the spot. But all went in vein as the OPs took it on deaf ears and continue to daily delay the matter by one pretext or the other and even till date the situation at the spot is same as it is since 2011. Feeling aggrieved the complainant moved a letter dated10.05.2017 to the OP and requested to make improvement at the spot and to deliver the possession of the plot But, the OPs in order to cover the lapse/faults on their part, had issued a vague and misconceived letter of possession bearing No.JET/9378 dated 09.10.17 without executing any agreement to sell and also without making any development and removal of encroachments at the spot, and - called upon complainant to take the possession of the plot without any demarcation, making any improvement as well as development at the spot. After receipt of the said possession letter, the complainant again approached to the OPs and requested them to make the compliance of the clause No.7 of the allotment letter in its true spirit and manner and requested to provide the basic amenities of development like water supply, sewerage, electricity, roads and other developments besides removal of encroachments at the spot and surroundings but, the opposite parties failed to do so and asked complainant to accept the possession of the plot as and where it is and that too without any demarcation and improvements which is absolutely not viable and impossible to construct and live there in without basic amenities and development. But in spite of assurance nothing has been done by the opposite party at the spot till date in-spite of passing away of more than 5 years from the date of allotment. Since the OPs remained deficient and negligent in providing proper services to the complainant hence due to the above said deficient and negligent act and conduct of the OPs, the complainant has suffered much harassment, mental tension, agony pain and economic loss as nothing has been done by the OPs at the spot since allotment i.e. since the year 2016 and more than 4-5 years have been elapsed from the date of allotment 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 the entire money to the tune of Rs.12,94,898/- alongwith agreed compounded interest @ 24% per annum from the date of payment till the date of its realization to the complainant. Further, OPs be directed to pay a compensation of Rs.5,00,000/- for causing mental tension and harassment to the complainant and Rs.33,000/- as litigation expenses and Rs.55,000/- as counsel fee.

2.                Notice of the complaint was given to the OPs, who filed joint written 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. 90-C of the Development Scheme 94.97 Acre known as Surya Enclave Extension was allotted to the complainant vide allotment letter no.JIT/935 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/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. 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 at his own responsibility. But it is pertinent to mention here that he 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. The complainant failed to approach the OP for executing the sale agreement and rather abandoned the allotment as after paying the part payment of the first installment belatedly he failed to deposit the remaining 4 installments and further he never executed the sale agreement. The complainant failed to deposit the due installments and also failed to enter into sale agreement but still he filed a letter for getting possession vide receipt letter no.2552 dated 11.05.2017 to take possession. On receipt of his letter the OP immediately took action and issued letter no.JIT/9378 dated 09.10.2017 to the complainant to take possession of the plot. But the same fell upon deaf ears and the complainant failed to come for taking possession. The complainant failed to take possession of the Plot although the JIT always remained ready and willing. The complainant miserably failed to enter into sale agreement or take possession as per allotment letter. 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 /transferee does not approach the department/ Jalandhar Improvement Trust to take possession 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 opposite party for taking possession so there's no question or objection ever raised for the surroundings/ facilitates etc is tenable. The complainant never deposited the due installments and became defaulter and his allotment is thus as per law liable to be cancelled without any further notice and deposited amounts forfeited as per law. The complainant never complied with the allotment terms and conditions and did not approach the JIT for execution of sale agreement and thus although his entitlement as per the Allotment Letter conditions does not arise to seek possession as yet the JIT had offered possession to him on 09.10.2017. From allotment year till 2020 the complainant failed to enter in to sale agreement or deposit installments or seek consequent possession nor he had ever 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 OP had never refused to give possession to the complainant as is evident form the Letter Ex. 0-3. 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 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 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. 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. On merits, the factum with regard to allotment of the plot No.90-C of 94.97 acre scheme 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 arguments from 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.90-C of the development scheme 94.97 acre known as Surya Enclave Extension was allotted to the complainant, vide allotment letter dated 07.06.2016, which has been proved as Ex.C-4/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/demand drafts have been proved as Ex.C-5 to Ex.C-8. The complainant has alleged that he had taken loan from the bank and has proved on record copy of loan sanction letter dated 06.12.2016 issued by Asst. General Manager of the State Bank of India Bank Ex.C-9. The contention of the complainant is that inspite of receiving huge money to the tune of Rs.12,94,976/- from the complainant and passing away of more than 4-5 years from the date of allotment letter, the OPs failed to adhere to the terms and conditions of the allotment letter and did not execute any agreement to sell with the complainant nor the OPs made any such improvement at the spot as assured by them. Photographs of the area and newspaper cuttings, which highlighted the conditions and progress in the area has been proved on record as Ex.C-23 to Ex.C-41 and Ex.C12 to Ex.C21 and Ex.C42 and Ex.C-43 and Ex.C-46 to Ex.C-55 respectively.

7.                The contention of the OP is that the present complaint is not maintainable and the complainant failed to deposit the due installments and also failed to enter into sale agreement, but still he filed a letter for getting possession Ex.O-2 and in response to this letter, the OP issued a letter Ex.O-3 for taking possession of the plot. The OPs have further alleged that as per Clause 5 the allottee has to enter into sale agreement of the plot within 30 days and as per clause 6, if he does not to do so then the JIT shall be within its rights to cancel the allotment and forfeit all deposited amount, but this contention is not tenable. If the complainant had failed to take the possession 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.

8.                The complainant has alleged that the facilities and amenities were not complete. 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 OPs. The news publications and photographs have been proved on record by the complainant, which are from different newspapers, which has been proved as Ex.C12 to Ex.C21 and Ex.C42 and Ex.C-43 and Ex.C-23 to Ex.C-41 and Ex.C-46 to Ex.C-55. 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. 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. 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 OPs are directed to refund the amount 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. 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                    Dr. Harveen Bhardwaj     

08.11.2023                     Member                              President