Punjab

Faridkot

CC/17/280

Dev Krishan Sharma - Complainant(s)

Versus

The Principal Secretary Department of Local Bodies - Opp.Party(s)

Naresh Kumar Gupta

22 Jan 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

Complaint No. :       280 of 2017

Date of Institution:   23.08.2017

Date of Decision :    22.01.2019

Dev Krishan Sharma, aged about 66 years s/o Gokal Chand r/o H.No. B-IV-74, Ucchi Gali, Faridkot Tehsil Faridkot District Faridkot.    

                                             .......Complainant

Versus

1. The Principal Secretary, Department of Local Bodies, Punjab at Chandigarh.
2. The Chairman, Improvement Trust, District Faridkot.
3. The Executive Officer, The Faridkot Improvement Trust, Faridkot.

                     ....OPs

           Complaint under Section 12 of the

  Consumer Protection Act, 1986.

 

Quorum:     Sh Ajit Aggarwal, President,

Smt. Param Pal Kaur, Member.

 

Present:      Sh  Naresh Gupta, Ld Counsel for complainant,    

                 Sh Iqbal Kaushal, Ld Counsel for OPs.

 

ORDER

(Ajit Aggarwal, President)

                                        Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs seeking directions to OPs to refund the amount deposited with them alongwith interest and to pay Rs.1,50,000/- as compensation for mental agony and harassment and financial loss to complainant besides litigation expenses of Rs.20,000/-.

2                                            Briefly stated, the case of the complainant is that Ops floated a scheme for allotment of residential plots at Baba Jiwan Singh Nagar, situated at Ferozepur Road and invited applications from Public from 10.07.2013 to 9.08.2013. Complainant applied for 200 square yards plot in prescribed time and deposited earnest money of Rs.1,10,000/-vide receipt no.070. Draw of lots held on 26.11.2013. Complainant succeeded in said draw and plot no.78 was allotted to complainant vide allotment letter memo no.157 dated 2.04.2014. total price of land allotted to him was Rs.11,00,000/- out of which complainant initially deposited Earnest money of 10% i.e 1,10,000/- and deposited remaining of  25 % of amount with OPs on 28.04.2014. He was at liberty to deposit the entire remaining amount of 75% in five equal instalments worth Rs,1,65,000/-  plus interest and in this way complainant deposited the remaining amount of Rs.9,73,500/- in five instalments  on 7.10.2014; 6.04.2015; 5.10.2015; 4.04.2016 and on 3.10.2016 respectively. As per allotment letter and agreement between the parties, allottee was to complete the construction within a period of 36 months, but no development took place the at the site where plot was allotted to complainant. neither sewerage pipes, water pipes or drainage system was developed at the site and moreover, high voltage wires passing through land have also been not removed and even neither any road are developed nor NOC is taken from Pollution Control Department. OPs assured complainant that site would be developed with all basic facilities like water, sewerage, pacca roads, lighting, drainage system etc to give good look. Complainant fell into trap of Ops by their false promises and in accordance of terms and conditions, complainant deposited entire amount with OPs in five equal instalments, But, Ops have not supplied any basic facilities at the site as installation of sewerage treatment plant has not been done there. Even after completion of five years, OPs have not initiated even a single step to make development at that place. Repeated requests made by complainant to OPs to develop the place and to remove high voltage wires from there, have bore no fruit, which amounts to deficiency in service and trade mal practice on the part of Ops. Complainant also issued legal notice to OPs requesting them to develop the colony, but all in vain and they did not pay any heed to listen to his requests. All this amounts to deficiency in service on the part of Ops and has caused great tension, harassment and mental agony to them for which they have prayed for seeking directions to OPs to refund the amount deposited with them alongwith interest and to pay Rs.1,50,000/- as compensation for mental agony and harassment and financial loss to complainant besides litigation expenses of Rs.20,000/-. Hence, the  present complaint.

3                                                         The Counsel for complainant was heard with regard to admission of the complaint and vide order dated 28.08.2017, complaint was admitted and notice was ordered to be issued to the opposite party.

4                                                          On receipt of notice, OPs appeared in Forum through Counsel and filed reply wherein admitted that  they floated the scheme in question for allotment of plots and complainant was allotted a plot no.78 measuring 200 square yards by them. As per terms and conditions of the agreement, complainant was to complete the construction within 36 months from the date of allotment, but after obtaining possession of plot, complainant did not apply for the sanction of site plan from the office of Improvement Trust, Faridkot intentionally. OPs never violated any terms and conditions of the agreement. Construction work for roads has been completed and Trust has passed a resolution for laying water pipe lines in scheme and same have been approved by Government and considerable amount has also been paid to Sewerage Board to carry out the work. Letters for removing high voltage lines have also been written to Punjab State Electricity Corporation Ltd and vide letter dated 3.03.2016, complainant is also asked to take possession of plot in question, but he has not taken the possession of plot in question. Proposal for completion of water supply, electricity and sewerage system is under consideration and on completion of these projects, Punjab Pollution Control Board would issue NOC. Letters for removing high voltage electric wires have also been written to Electricity Department and there is no deficiency in service on the part of OPs. OPs have prayed for dismissal of complaint with costs.

 5                                               Parties were given proper opportunities to prove their respective case. The complainant tendered in evidence his affidavit Ex.C-1, affidavit of complainant as ExC-4 and documents Ex C-2 to C-21 and then, closed the evidence.

6                                                 In order to rebut the evidence of the complainant, ld Counsel for OPs tendered in evidence affidavit of Gobind Kumar as Ex OP-1, documents Ex OP-2 to OP-11 and then, closed the evidence.

7                                       Ld Counsel for complainant vehementally argued that through newspaper, Ops invited applications for allotment of residential plots In Baba Jiwan Singh Nagar Ferozepur Road, Faridkot and complainant applied for 200 square yards plot in the said scheme of Faridkot Improvement Trust, Faridkot. Vide memo no. 157 dt 2.04.2014, complainant was allotted plot no. 78 measuring 200 square yards under Development Scheme of OPs through draw dt 26.11.2013. As per terms and conditions of OPs, complainant paid the price of the said plot and agreement to sell was executed and signed between complainant and OPs at Faridkot. It is further submitted that complainant has already complied with all the terms and conditions for the allotment of said plot  and complainant was to built or got constructed the house within three years from the date of allotment and as per agreement, OPs were bound to deliver the actual and physical possession of the plot to complainant immediately as per clause 3 of said memo, but OPs have neither demarcated nor given the actual and physical possession of said plot to complainant till date. Complainant made many requests to OPs to develop the site and to remove high voltage wires from the spot, but they did not do so. Complainant also served legal notice to OPs requesting them to deliver the possession of plot to him, but OPs did not accept his request. Though complainant has abided by all the terms and conditions of instalments but OPs have not fulfilled their terms of contract and he has suffered huge loss as he has paid major portion of his hard earned money of his life with OPs. Complainant made many requests to OPs, but all in vain, which amounts to deficiency in service and trade mal practice on the part of Ops and has caused harassment and financial loss to complainant for which he is entitled for compensation and relief sought. He has stressed on documents Ex C-1 to 21 and prayed for accepting the present complaint.

8                           To controvert the allegations of complainant, Ld Counsel for OPs argued that complainant has filed false, frivolous and vexatious complaint and there is no deficiency in service on their part. It is asserted that there is no such condition in the agreement regarding handing over of possession of plot to complainant within one month from the date of agreement. Denying all the allegations of complainant, ld counsel for OPs averred that as per terms and conditions of the agreement, complainant was to complete the construction within 36 months from the date of allotment, but after obtaining possession of plot, complainant did not apply for the sanction of site plan from the office of Improvement Trust, Faridkot intentionally. OPs never violated any terms and conditions of the agreement. Construction work for roads has been completed and Trust has passed a resolution for laying water pipe lines in scheme and same have been approved by Government and considerable amount has also been paid to Sewerage Board to carry out the work. Letters for removing high voltage lines have also been written to Punjab State Electricity Corporation Ltd and vide letter dated 3.03.2016, complainant is also asked to take possession of plot in question, but he has not taken the possession of plot in question. Proposal for completion of water supply, electricity and sewerage system is under consideration and on completion of these projects, Punjab Pollution Control Board would issue NOC. Letters for removing high voltage electric wires have also been written to Electricity Department and there is no deficiency in service on the part of OPs. OPs have prayed for dismissal of complaint with costs. He has stressed on documents Ex OP-1 to 11.

9.                We have heard the arguments of both the parties and also gone through the pleadings and evidence led by both the parties. The case of the complainant is that he applied for allotment of plot in the scheme launched by OPs and he was  allotted  plot no. 78 measuring 200 Sq Yds vide allotment letter dated 02.04.2014 and he deposited the entire price of  plot with OPs on different dates against duly issued receipts, as per terms and conditions of the allotment letter. Neither development took place at the site, nor sewerage pipes, water pipes or drainage system was developed at the site and even, high voltage wires passing through land have also been not removed. NOC is also not taken from Pollution Control Department. OPs assured complainant to develop site with all basic facilities like water, sewerage, pacca roads, lighting, drainage system etc to give good look. But, Ops have not supplied any basic facilities at the site as installation of sewerage treatment plant has not been done there. Even after completion of long span, OPs have not initiated even a single step to make development at that place. In reply the OPs admitted that the complainant was allotted a plot in the scheme launched by them and he deposited the amount with them as price of the plot as alleged by the complainant. They denied that they did not start the development work. They pleaded that they are doing their level best to start development at site. He argued that OPs passed resolution for starting development work on the site and also wrote letters to Punjab Water Supply and Sewerage Board to start the work which is sent to the State Government for its approval and the approval by State Government is still pending. He argued that OPs are ready to deliver the possession of the plot to the complainant and there is no deficiency in service and trade mal practice on the part of the OPs. The Counsel for the complainant argued that as admitted by the OPs themselves that they sent the proposal for development work on the site to State Government for approval which is still pending, so it is admitted fact that there is no development work started on the spot and all is in the papers. On the plea of the OPs that they are ready to deliver the possession of plot in dispute. They wrote letters to this fact to complainant. The Counsel for the complainant  argued that there is no development and basic amenities on the site, so the mere possession of the plot is not sufficient. He put reliance on citation 2015 ( 2 ) Consumer Law Today, 39 titled as M/s Ashiana Housing Ltd. Vs Yog Raj Vij, Our Hon’ble National Commission, New Delhi observed that Consumer Protection Act, 1986, Section 2 (1) (g)-Flat Allotment-offer of possession-Mere offer of possession when the external services are far from complete, cannot amount to fulfilment of the contractual obligation undertaken by the builder-Unless the external development including common facilities is ready for use, a buyer cannot conveniently make use of the flat allotted to him-Revision Petition dismissed.

                             He argued that as the complainant has already paid a entire payment of  price of the plot but the OPs has failed to deliver the possession of the plot after the development work, even they fail to start the development work till today. High voltage wires have also not been removed from the place. They have no right to retain the amount with them and this amount should be refunded to the complainant. He put reliance on the judgments daed 04.09.2015 passed by Our Hon’ble National Commission, New Delhi in first appeal no.1215 of 2014 titled as Jalandhar Improvement Trust Vs Munish Dev Sharma in it our Hon’ble National Commission observed that Furthermore, appellants after having taken substantial amount from the respondents in the year 2011, are still enjoying their hard earned money for last many years. Now, when appellants are not in a position to allot the plots in a habitable condition to the respondents, then why they are still withholding respondents’ money. There is no reasonable and plausible explanation, in this regard from the side of the appellants.  We deplore  such “unfair trade practices” being  adopted by the Appellant-Trust, which is a Public Body.

                    It would also be pertinent to observe, that appellants have not given any firm date of handing over the possession of plots in question, to the respondents which also is a “ Deceptive Practice”.  The appellants should have given firm date of handing over of possession, at the time of taking booking amount. By not indicating the true picture with regard to their scheme to the respondents, appellants induced them to part with their hard earned money, which also amounts to “unfair trade practice”.

                               Thus, appellants by not delivering the physical possession of fully developed plots to the respondents, till date even after having received more than 90% of the price thereof, are not only deficient in rendering service but are also guilty of indulging into “unfair trade practice”.

                              Appellants in the present case,  “wants to have the cake and eat it too”, as admittedly they have received about 90% of the sale price of the plots. The appellants are thus enjoying possession of the plots as well as substantial amount of consideration paid by the respondents. On the other hand, respondents after having paid substantial amount of the sale consideration, are still empty handed.

                   They further observed that such type of unscrupulous act on the part of Appellant-Trust should be dealt with heavy hands, who after grabbing the money from the purchasers, enjoy and utilize their money but do not hand over the plots on one pretext or the other. Appellants want the respondents to run from one fora to other, so that appellants can go on enjoying the respondents’ money without any hindrance.  It is well settled, that no leniency should be shown to such type of litigants who in order to cover up their own fault and negligence, goes on filing meritless appeal in consumer foras. Equity demands that such unscrupulous litigants whose only aim and object is to deprive the opposite party of the fruits of the decree, must be dealt with heavy hands. Unscrupulous developer like Appellant-Trust, who after taking almost entire cost of the plots, do not perform their part of obligation, should not be spared.  A strong message is required to be sent to such type of Public Bodies.  

                   He further argued that complainant is entitled for the interest along with penal interest on the amount deposited by him with OPs as the OPs violated the terms and conditions of the scheme. He put reliance on the citation 2015 ( 1 ) Consumer Law Today, 552 titled as Puneet Malhotra Vs Parsvnath Developers, decided by Hon’ble National Commission, New Delhi:

                 Consumer Protection Act, 1986, Section 2 (1) (g) & Interest Act, 1978- Allotment of flat-Housing Construction-Delay in construction-Interest-held- As per the agreement between the parties, the complainant was required to pay interest @ 24% PA in the event of delay on his part in making payment to the opposite party-Logically, if the seller is charging interest from the buyer @ 24% PA, it should have no hesitation in paying the interest at the same rate to him in the event of its failure to complete the construction of the flat within the time frame agreed between the parties.

                                                Ld. Counsel for the complainant put reliance on Circular dated 23.02.1983 issued by the Local Government of Punjab, this circular contains the guidelines for the fixation of realization of interest in respect of plots falling in the various schemes of Improvement Trusts. The very first guideline is that as far as possible the Improvement Trusts shall allot/auction the sites only when they are sure that they are in a position to deliver the possession of site to the purchaser. The notice for the delivery of possession is required to be issued to the purchaser within 30 days of the allotment/acceptance of bid indicating the time at which he should be present for taking of the possession. It is also contained in that circular that where the authorities are not in position to deliver the possession immediately, interest, penal interest and penalty on the payment of instalments is to start only from the date on which the possession of the site is delivered to the purchaser and not from the date of the receipt of the allotment letter by him.

                   He prayed that the present complaint in hand is may be allowed and OPs may be directed to refund amount deposited by the complainant with them along with interest.

10.                         We have thoroughly gone through the file and evidence and carefully perused the case law produced by the complainant. It is admitted case of the parties is that complainant was allotted a plot by OPs and he paid Rs.13,16,000/- price of the plot to the OPs but OPs failed to start development work on the site and to give possession of the plot. The pleadings of the Ops itself shows that they have not start any development work of the scheme at the site and only development work is done in the file. They pleaded that they passed resolution regarding development work and wrote letters to Water Supply and Sewerage Board, and sent the same to the State Government for approval which are yet pending with State Government for approval which clearly shows that there is no sign of development work on the site and all work is in the papers, so in these circumstances all these acts of the OPs amounts to deficiency in service and trade mal practice. As per the allotment letter, they have to deliver the possession of the plot after completion of entire development work within one month of the allotment letter but the OPs failed to deliver the possession of the plots after completing the development work within stipulated period. The Ops are not entitled to retain the money paid by the complainant to them as price of the plot. Moreover till today the Ops are not in the position to give assurance that when they would complete the development work on the site and deliver the possession of the plot after it. 

11                             In the light of above discussion, the present complaint is hereby allowed. The Ops are ordered to refund amount of Rs. 13,16,000/- which was received by them from the complainant as price of the plot along with interest @ 9% per anum from the date of its deposit till final realization. OPs are also burdened to pay Rs.5000/-as litigation expenses to the complainant. Ops are directed to comply with the order within one month from the date of receipt of the copy of the order failing which complainant shall be entitled to initiate proceedings under Section 25 and 27 of Consumer Protection Act. Copy of the order be supplied to parties free of cost. File be consigned to the record room. 

Announced in Open Forum

Dated: 22.01.2019

 

                                       (Param Pal Kaur)                    (Ajit Aggarwal)

                                           Member                                    President