BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.374 of 2022

      Date of Instt. 06.10.2022

      Date of Decision:28.10.2024

Ankush Rawat aged about 35 years s/o Sh. Vijay Kumar, R/o H. No.3297, Sector-23-D, Chandigarh, Chandigarh-160023.

At present: Flat No.2643/C, MIG Super Flats, Sector-70, Mohali-160071.

..........Complainant

Versus

Jalandhar Improvement Trust, Model Town Road, Jalandhar City. Through its Executive Officer.

….….. Opposite Party

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                                      (Member)

                   Sh. Jaswant Singh Dhillon       (Member)

Present:       Smt. Harleen Kaur, Adv. Counsel for Complainant.

                   Sh. Brijesh Bakshi, Adv. Counsel for OP.

Order

Dr. Harveen Bhardwaj (President)

1.                The instant complaint has been filed by the complainant, wherein it is alleged thatthe complainantsubmitted an application on prescribed form to OP for plot measuring 200 Sq. Yards alongwith 10% earnest money of Rs.3,40,000/-  through SBI, which was repaid by the complainant alongwith interest and obtained NDC alongwithall the requisite documents completed and complied with all the requirements. The complainant was allotted Plot No.220-D, Vikas Scheme 94.97 Acre (Surya Enclave Extension), Jalandhar in lucky draw dated 04.11.2011at the rate of Rs.17,000/- per sq. yards totaling to Rs.34,00,000/- as per allotment letter No.JIT/3400 dated 13.02.2012. The site was to be developed within 2 ½ years and the possession of the plot as per the allotment letter could be taken after the execution of the agreement of sale which was to be executed within 30 days of the allotment letter, but did not execute the sale agreement which amounts to deficiency in service and unfair trade practice. The complainant paid the whole purchase price of the plot in the sum of Rs.2,39,37,696/-.  However, despite full payment, the OP has deceived the complainant by misleading and fraudulent advertisement since the allotment of the plot was fake, the area where the plot has been allotted is uninhabitable and unlivable. Neither the OP has developed the site nor offered possession as per agreed terms and conditions and advertisements even after lapse of almost 11 years despite the fact that complainant personally visited the office of the OP for the same number of times. There are no demarcations made by the department and plots cannot be identified only verbally shown by a representative of the OP. There are no motorable roads, water and sewage pipeline have not been connected to the main line thus making them unusable. Even after protracted follow up and lapse of more than 11 years from the date of allotment OP was unable to give any valid and satisfactory reason and justification for unpardonable delay in making the area habitable and delivery of possession as per agreed amenities and facilities as assured to the complainant, till date tantamount to deceptive and unfair trade practice deficiency in rendering service and as such, the present complaint filed with the prayer that the complaint of the complainant may be accepted and OP be directed to return/refund Rs.39,37,696/- deposited by the complainant with interest @ 18% per annum from the date of deposit upto the date of actual payment to the complainant. Further, OP be directed to pay a compensation of Rs.5,00,000/- for causing mental tension and harassment to the complainant and Rs.25,000/- as litigation expenses.  

2.                Notice of the complaint was given to the OP, who filed reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable and the same is time barred. The allotment was made on 13.02.2012 and the possession could be taken after entering into sale agreement within 30 days from allotment. But the complainant failed to do so. The complainant failed to enter into sale agreement till date and has not got entitled to take possession as per his own act and conduct and now suddenly raised frivolous objections and the present complaint after more than 10 years from allotment is time barred. 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 the present complaint is an abuse of the process of law. No actionable claim has ever arisen to the complainant to file the present complaint against the OP. It is further averred that the complainant is guilty of concealment of material facts. On merits, the factum with regard to allotment of the plot and payment to the same by 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 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.220-D of the development scheme 94.97 acre known as Surya Enclave Extension was allotted to the complainant, vide allotment letter dated 13.02.2012, 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 have been proved as Ex.C-5 to Ex.C-13. The contention of the complainant is that despite having complied with all the requirements and full payment made by the complainant, the construction work was not carried out by the OP nor the possession was offered even after lapse of more than 11 years. Photographs of the area and newspaper cuttings, which highlighted the conditions and progress in the area has been proved on record as Ex.C14 to Ex.C18.

7.                The contention of the OP is that the present complaint is not maintainable as the legal position was communicated to the complainant vide Ex.OP-1. He has further submitted that the present complaint is time barred therefore, the complaint is barred from filing the present complaint. It has further been submitted that the plot in question was completed by the OP as per terms and conditions of the allotment and the complainant was informed about the construction of the plot and the development scheme is complete. It has further been submitted that as per the conditions of the agreement possession of the semi finished flat was to be delivered by the trust to the allottee on ‘as is where is basis’.

8.                The OP has relied upon the document Ex.OP-1. Perusal of Ex.OP-1 shows that the letter was issued to the complainant on 01.03.2016 that intimation was given to the complainant that as per the order of the Hon’ble Punjab & Haryana High Court of 2015 in which the status quo order has been passed and consent of the complainant was sought as to whether the complainant wants to take the refund of her earnest money or not. The declaration was sought from the complainant to this effect by the OP. On the one hand, the OP is saying that the plot cannot be allotted and intimation was given. On the other hand, the plot was allotted on 13.02.2012. Once the plot was allotted this shows that the complainant did not give consent for the refund of the money and preferred to seek the allotment of the plot, which was allotted as per Ex.C-4. So, this contention is not tenable.

9.                With regard to the submission of the OP regarding the present complaint is time barred is also not tenable as the news publications and photographs have been proved on record by the complainant, which are from different newspapers, which has been proved as Ex.C14 to Ex.C18. 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 alleged that the construction is complete and project was ready for possession, but 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 Chandigarh State Commission (UT) in a complaint case No.63 of 2020, decided on 01.07.2021, case titled as ‘Usha Yadav Vs. M/s Manohar Infrastructure & Constructions Pvt. Ltd. and Anr.’ that ‘Mere taking a bald ground to the effect that the plot is ready for possession and that the complainant can be asked to take possession thereof, in the absence of any evidence to the effect that the plot area is habitable, has no value in the eyes of law-burden to proof that the project has been completed and the site, in question is fully developed or is about to complete is on the builder/OP.’ It has been held by the Hon’ble State Commission, in “ManojBagroyVs. M/s N. H. Matcon” in consumer complaint no.429 of 2019, decided on 07.01.2020that 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. It has been held by the Hon’ble Supreme Court in a case titled as ‘Dharmendra Sharma Vs. Agra Development Authority’ that ‘an offer made by a real estate developer to a home buyer to take possession of a flat without obtaining completion certificate and firefighting clearance certificate would not be considered to be valid.’ 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. 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 and the complaint filed by the complainant was held to be within limitation.

10.              The complainant has alleged that the facilities and amenities were not complete and the entire amount was paid by 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 complainant failed to approach the OP and as per the terms and conditions of the allotment letter, the allottee could enter into sale agreement within 30 days from the date of allotment letter and thereafter the allottee could take possession from the OP. The complainant has failed to enter into sale agreement with the OP till date and on account of her own default. She is barred from seeking possession, but this contention is not tenable as the complainant has deposited the fee for stamp paper and agreement to sell as per Ex.C-6. The OP failed to send any notice nor any letter for execution of agreement was ever issued nor possession was ever offered. Once the fee for agreement to sell was deposited, the complainant is not at fault, the OPs could have cancelled the allotment, if the fault was found with the complainant, but this was not done. This is the deficiency in service by the OP. In such circumstances, the complainant is entitled for the relief.

11.              In view of the above detailed discussion, the complaint of the complainant is partly allowed and OP is 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, OP is 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.10,000/-. 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 Plot deposited by the complainant. This complaint could not be decided within stipulated time frame due to rush of work.

12.              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     

28.10.2024         Member                            Member         President