Punjab

Patiala

CC/19/312

Rinku Kumar - Complainant(s)

Versus

Urban Planning & Devalopment Authority - Opp.Party(s)

Sh Dixit Raj Kapoor

28 Apr 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

PATIALA.

 

                                     

Consumer Complaint No.	:	CC/ 312/2019
Date of Institution	:	19.8.2019
Date of Decision	:	28.4.2023

 

 

Rinku Kumar s/o Sh.Gulu Ram R/o # 50, Block No.4, Sanjay Colony near Jain Mill, Patiala.

                                                                   …………...Complainant

                                      Versus

 

1. The Patiala Urban Planning &  Development Authority (PDA) PUDA Complex, Room No.101, Urban Estate, Phase-2, Patiala through its Chief Administrator.
2. The Omaxe Ltd. having its registered office at 7, LSC, Kalkaji, New Delhi- 110019 through its Managing Director.

 

…………Opposite Parties

 

Complaint under the Consumer Protection Act

 

 

QUORUM

                                      Hon’ble Mr.S.K.Aggarwal, President

                                      Hon’ble Mr.G.S.Nagi, Member        

 

 

PRESENT:                   Sh.Dixit Raj Kapoor, counsel for complainant.

                             Smt.Kusum Sood, counsel for OP no.1.

                             Sh.S.S.Sahni, counsel for OP No.2. 

                              

ORDER

 

1. The instant complaint is filed by Rinku Kumar s/o Sh.Gulu Ram (hereinafter referred to as the complainant) against Patiala Urban Planning and Development Authority (PDA) and another (hereinafter referred to as the OP/s) under the Consumer Protection Act (for short the Act).
2. The averments of the complainant are as follows
3. That OP No.1 proposed to develop a project known as PDA-OMAXE CItY, at Sirhind Road, Baran, Patiala. Complainant applied to OPs No.1&2 for the allotment of EWS House (economic weaker section) scheme in the aforesaid project vide application No.105121 dated 19.5.2010. Complainant paid earnest money of Rs.31702/- against the tentative price of Rs.3,24,028/- of the EWS flat to OPs No.1&2. In the draw of lot held on 28.7.2010 complainant was declared successful and flat in Block Tulip, Cluster I, Flat No.SF4, at Second Floor, measuring super area approx.350.30sq was allotted to complainant vide allotment letter dated 31.1.2011 by the OPs.
4. Thereafter, complainant deposited Rs.45802/- on 28.3.2011 and Rs.99,592.64 on 12.8.2014.
5. It is averred that as per the terms and conditions of allotment letter possession of the flat was to be delivered within three years from the date of allotment i.e. on 31.1.2014, but till date possession of flat was not delivered. Complainant wrote letter dated 8.3.2019 for the refund of amount deposited by him. OP No.1 vide its reply dated 23.4.2019 to the said letter refused to refund the amount alongwith interest. There is thus deficiency in service on the part of the OPs which caused mental agony and harassment to the complainant. Consequently, prayer has been made for acceptance of complaint.
6. Upon notice, OPs appeared through counsel and filed written statements having contested the complaint.
7. In the written statement filed by OP No.1, it raised certain preliminary objections. On merits, averments of the complainant are stated to be matter of record. However, after denying all other averments, OP No.1 prayed for dismissal of complaint.
8. In the written statement filed by OP no.2 it also raised various preliminary objections. It is pleaded that the complainant has concealed the factum of pendency of CWP No.8100 of 2011 titled as Harbhajan Singh and Ors. Vs. State of Punjab and ors, and the  development of the entire project was stalled as Status Quo  was ordered by the Hon’ble Punjab & Haryana High Court vide its order dated 29.7.2011 and the same was vacated only upon dismissal of writ petition on, 26.9.2013. It is further pleaded that M/s Omaxe Ltd. has been in Joint Development Agreement with PDA as it was highest bidder so the development rights were allotted in favour of it. No direct payment had even been made to Omaxe by the complainant and the payments were made by complainant directly to OP No.1 and even all the post allotment correspondence was exchanged between complainant and OP no.1. Further as there was status quo order passed by the Hon’ble Punjab and Haryana High Court, hence the allotees were given rebate in extension fee penal interest w. e. f. 29.7.2011 to 28.9.2013 i.e. the period of operation of status quo.
9. In the mean time, OP No.1 terminated JDA (Joint development agreement) vide  Memo No.3861-62 dated 20.6.2011. Said notice was duly replied by OP No.2 but termination notice was never withdrawn by OP No.1. After disposal of writ petition No.8100 of 2011, OP No.2 (Omaxe Ltd.) has been continuously following PDA to allow it to commence the development. However, till date PDA has not taken any decision  and still the negotiations with PDA are in progress.As such OP No.2 could not work at the site.
10. During the pendency of another CWP, before the Hon’ble Punjab & Haryana High Court, OP No.1 further floated fresh tenders for the completion of the work for common area i.e. roads, water supply, electricity services etc. at OMAXE City. OP No.2 also participated in the said tender and same was granted to OP no.2on fresh contract and the said work is in progress. Thus, it is clear that OP No.2 was/is always ready and willing to perform its part.

Not only this, Welfare Association of the Project i.e. PDA Residents has also preferred CWP No.14348 of 2016, wherein issue regarding non-development has been raised and the said writ petition is subjudice before the Hon’ble High Court. Vide order dated 1.8.2017,Hon’ble High Court has directed PDA to seek instructions as to whether they want to carry on development themselves or through OP NO.2 (Omaxe Ltd.) or through any third party. On the adjourned date, counsel for PDA made a statement that inter-se dispute of PDA and Omaxe Ltd. is pending before Special Committee constituted for looking into such matter headed by Chief Secretary, Govt. of Punjab and on his request, the matter was adjourned and thereafter, till date no decision has been taken by the Special Committee and the said CWP is pending before the Hon’ble Punjab & Haryana High Court. Thus the non development of the project is on account of the facts beyond the control of OP No.2.On merits, OP No.2 denied all the averments of the complainant and prayed for dismissal of complaint.

11. In evidence, ld. counsel for complainant, adduced affidavit of complainant,Ex.CA, copy of acknowledgment, Ex.C1, copy of  allotment letter,Ex.C2, copies of receipts, Exs.C3 &C4, copy of RTI application,Ex.C5, copy of letter dated 25.1.2019,Ex.C6, copy of letter dated 8.3.2019, Ex.C7, copy of letter dated 23.4.2019,Ex.C8  and closed evidence.
12. Ld. counsel for OP No.1 has tendered in evidence, Ex. OPA, affidavit of Ms. Jashanpreet Kaur Gill, Estate Officer, PDA, Patiala. alongwith document, Ex.OP-1/A and closed evidence.
13. Ld. counsel for OP No.2 has tendered in evidence, Ex.OPB, affidavit of Mandeep Singh Cheema, authorized signatory of OMAXE alongwith documents, Exs.OP1 to OP20 and closed evidence.
14. We have heard ld. counsel for the parties and have also gone through the record of the case, carefully.
15. The OPs had given a wide publicity for construction of flats for economically weaker section in their development scheme under the name of PDA Omaxe City Patiala.
16. The complainant applied to the OPs for the allotment of EWS house (economic weaker section) in PDA-OMAXE CITY vide application No.105121 and paid an earnest money of Rs.31,702/- on 24.5.2010 vide acknowledgment receipt, Ex.C1. Flat No.SF4 in Cluster I Block Tulip was allotted to the complainant in the draw of lots held on 28.7.2010 , as is evident from letter bearing memo No.406 dated 31.1.2011,Ex.C2, issued by Estate Officer, PDA, Patiala.The tentative price of the said flat was Rs.3,10,016/- As per the said  letter an amount of Rs.45802/-was to be deposited by 30.3.2011 with PDA-OMAXE-CIRY, Patiala. The said amount was deposited by the complainant on 23.3.2011, as per receipt, Ex.C3 with PDA, Patiala. Another amount of Rs.99592.64/- was deposited by the complainant with Estate Officer, PDA, Patiala vide receipt No.1024 dated 12.8.2014, as per Ex.C4. Possession of the flat was to be given within 3 years from the date of allotment, as per clause 6 of the allotment letter dated 31.1.2011,Ex.C2 subject to  force majeure conditions such as act of God, Fire, Floods, Explosion, War, Riots, Terrorist attacks or Sabotage. However, no such possession was given. Complainant wrote letter Ex.C7 for the refund of the amount alongwith interest but the amount was not refunded.
17. OP No.1 in its reply to the complaint has taken the preliminary objection that all the development works were to be taken up by OP No.2 who was in possession of the project site and is not liable for the development of the project or construction of the flats and solely shifted the onus on OP No.2 for the delivery of the flats. However, it has not been brought on record by OP No.1 as to when the site was handed over to OP No.2 for development and execution of the project.
18. OP No.2 in its written statement has submitted that a Civil Writ Petition No.8100 of 2011 was filed before the Hon’ble Punjab & Haryana High Court. Following order was passed by Hon’ble High Court on 29.7.2011(Ex.OP3):

Ld. counsel for respondents seek time to file replies.

Ld. counsel for the petitioners says that the land was acquired for public purposes but the same was being used for private purpose. In view of this submission we direct that status- quabe maintained and no construction be raised till further orders .

As such all the construction activities were stopped on 29.7.2011.

19. The said order was finally vacated on 26.9.2013, vide order, Ex.OP2, as the petition was dismissed as withdrawn.
20. Ld. counsel for OP No.2 has argued that PDA Omaxe City has been a joint venture of PDA, Patiala Development Authority and M/s Omaxe Ltd. The work of development of the construction was allotted to OP No.2 on the basis of the highest bid having been made by OP No.2 at the time of allotment of work through Open Tender System. Ld. counsel further argued that no payment whatsoever has been paid by the complainant to OP No.2 and all the payments were made to OP NO.1.
21. Further after the disposal of CWP 8100 of 2011 on 26.9.2013 another CWP 14348 of 2016 was filed by the Welfare Society of plot holders of PDA Omaxe City before the Hon’ble High Court, which is Ex.OP5 and the Hon’ble High Court in its interim order dated 1.8.2017 had held that, “Ld. counsel appearing on behalf of respondent No.1 states that they had issued a notice for termination of the Joint Development Agreement with respondent No.2-private respondent. He seeks time to take instructions as to whether respondent No.1 is agreeable to respondent No.2 carrying out the work so far as it pertains to petitioner  or whether respondent No.1  will  itself carry out the said work”.
22. OP No.2 has also placed on record order dated 25.9.2017 against the same CWP (Ex.OP4) vide which State of Punjab was impleaded as a party as disputes inter se between OPs No.1&2 have been referred to a committee headed by Chief Secretary Govt. of Punjab and same was allowed. It was also held that the dispute between the parties is no reason for the petitioners being deprived of their entitlement under the agreement entered into by their members with the respondents.
23. Further vide order dated 16.1.2018 Ex.OP6, Hon’ble High Court in its interim order had held that, “ Ld. counsel for respondent No.2 states that in terms of order dated 25.9.2017 of this Court, the Committee was to convey the decision regarding the meeting to be held between respondent No.1 and respondent No.2.The Committee has to look into the dispute between the petitioner and respondents No.1&2. It was pointed out that the said meeting was held on 1.11.2017 and no decision has been taken so far. The Special Committee is directed to take a decision within next 03 weeks and submit the report to this Court.
24. From the above, it transpires that OP No.1 had issued a notice of termination to OP No.2. The inter-se dispute between OPs No.1&2 is pending before Special Committee headed by Chief Secretary, Govt. of Punjab and no decision has been taken by the Committee till date and CWP is pending before the Hon’ble Punjab & Haryana High Court from 2016.
25. The notice of termination issued vide No.3861-62 dated 20.6.2011 is Ex.OP13, which has been issued on the ground that the development works have not been carried out by OP No.2 as per the terms and conditions of Joint Development Agreement, executed between OPs No.1&2. OP No.2 had then given different proposal to OP No.1 for revoking the said termination but the same had not materialized till date, as explained above.
26. From the above discussion, it transpires that the construction of flats, which was to be started from 30.12.2011 and was to be completed by 29.12.2014 was initially delayed due to the stay granted by the Hon’ble High Court w.e.f. 29.7.2011 to 26.9.2013. Thereafter Joint Development Agreement between OPs no.1&2 was terminated vide letter dated 20.6.2011,Ex.OP13 by OP No.1. Further notice for termination of agreement was issued to OP No.2 by OP No.1 on 20.6.2011 well before the date of receipt of application for construction of EWS flats on 30.12.2011.Further all the payments made by the complainant had been received by OP No.1 and are lying with OP No.1.
27.  A perusal of Joint Development Agreement,Ex.OP1/A, indicates that the development period for the project was 48 months from the effective date of starting as per clause 2.2.1.Further in the event of any delay which was attributable to OP No.1, the same was to be extended as per clause 2.2.2. Further as per clause 3.4(f) of the agreement, which states that, “Instead of terminating this Agreement as provided in this Article 3.4, the Parties may by mutual agreement extend the time for fulfilling the Conditions Precedent and the term of this Agreement; provided that any extension of time in case of the Developer’s failure to fulfill its Condition Precedent shall  be subject to imposition of damages linked to delay on the Developer as determined by the Independent Technical cum Quality Control Consultant, unless the same has been occasioned by default or delay on part of PDA.”
28. A perusal of the termination notice, Ex.OP13 reveals that the notice for termination was of 20.6.2011 whereas the effective date of handing over the site was 9.8.2007 and as such the notice had been prepared well before the completion of 48 months i.e. 8.8.2011. Further as per the said notice 80.61% of the development works had already been completed by OP No.2 as on 30.4.2011 as per the report of Independent Quality Control Consultant. Although there was a provision for imposition of damages linked to delay in the development of the project, yet notice of termination was issued by OPs No.1&2 in the first instance.
29. As such in view of the stay granted by the Hon’ble Punjab & Haryana High Court w.e.f. 29.7.2011 to 26.9.2013 and termination of agreement on 20.6.2011 which is still continuing, OP No.2 was no way free to construct and develop the flats in question within 36 months from 30.1.2011 onwards as per the condition of the allotment letter. It is also surprising to note that although the Joint Development Agreement (JDA) was declared null and void by OP No.1 even then they continued to collect payments interms of installments of enhancement from the complainant from time to time. As such, OP No.1 is fully responsible for not making any alternative arrangements due to cancellation of Joint Development Agreement and for not developing/constructing the flats on their own or through any other agency and are fully liable for the delay caused in this regard. Thus, the argument of OP No.1 that all development/construction work was to be done by OP No.2 does not extend any help to the case of the OP.
30. The complainant was also deficient as he had not deposited any of the 12 installments and only partial payment of Rs.99592/- has been made on 12.8.2014 i.e. after more than 43 months from the date of allotment which was due from 4/2011 to 1/2014.
31. OP No.1 during arguments stated that they are ready to refund the amount deposited by the complainant after making necessary deductions as per the rules of PDA. We are of the opinion that the delay in the delivery of the possession of the flats is entirely on the part of OP No.1 and there appears to be no immediate situation which indicates that the possession of the flats will be offered in near future. The complainant has suffered harassment from the OPs due to non possession of the flats for a long period of 12 years from the date for which delivery was to be given within three years.
32. Consequently, we partly allow the complaint and direct OP No.1 to release the amount deposited by the complainant after making deduction of 10% as per terms and conditions of allotment letter, alongwith interest @ 6% per annum from the date of deposit, till realization, within 30 days from the date of receipt of certified copy of this order failing which OP shall pay interest on the payable amount @9% per annum from the date of deposit till realization. No order as to costs and compensation.
33.  The instant complaint could not be disposed of within stipulated period due to Covid protocol and for want of Quorum from long time.
85109252238716.  
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                                              G.S.Nagi                           S.K.AGGARWAL

                                              Member                          President