BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.173 of 2023

      Date of Instt. 12.05.2023

      Date of Decision:28.10.2024

Baljit Kaur aged about 58 years W/o Sh. Saroop Singh R/o Near Gian Sagar College, Kalanaur, Gurdaspur, as duly inducted as attorney of Mandeep Kaur aged 43 years D/o Sh. Saroop Singh R/o Near Gian Sagar College, Kalanaur, Gurdaspur, Punjab 143522

..........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 through her attorney, who is the mother of the complainant, wherein it is alleged that the daughter of the complainant submitted an application on prescribed form to OP for plot measuring 100 Sq. Yards alongwith 10% earnest money of Rs.3,23,950/- alongwith all the requisite documents completed and complied with all the requirements. The daughter of the complainant was allotted Plot No.189-C, Vikas Scheme 94.97 Acre (Surya Enclave Extension), Jalandhar on 02.04.2012 in lucky draw dated 04.11.2011 at Red Cross Bhawan, Jalandhar further confirmed by resolution No.335 dated 08.11.2011 by the Trust. The information regarding the allotment of the plot was given by OP vide its letter No.JIT/4590 dated 02.04.2012 to the daughter of the complainant. 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 the same was executed at a much later stage by the OP for the reasons best known to them, which in itself amounts to deficiency in service and unfair trade practice. The site was to be developed within 2 ½ years and the possession of the plot as per the al could be taken after the execution of the agreement of sale which was to be executed within 30 days of the allotment letter. The total amount paid after adding the interest amount paid is Rs.20,62,300/-. The daughter of the complainant has deposited all the requisite papers 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 completed with all the amenities and ultra-modern facilities as advertised and assured in the prospectus to augment the sales of the said plots to make money and profits by the OP. It was found that OP had deceived the complainant by misleading and fraudulent advertisement since the alloment of the plot was fake, the area where the plot has been allotted is uninhabitable and unlivable. 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 thusmaking them unusable. Completion certificate has not been still issued to the said project, the OP has failed to adduce completion certificate with respect of the said project. There is high tension wire passing through C-Block which is extremely hazardous and risky, these have not been moved/replaced till date also no electricity connection is available till date. The condition further worsens during the rainy season as water clogging take place with the area being used as a dumping ground the area emanates unbearable stink. There is no possibility of carrying out construction in the said area, a total hazard medically also. The OP has no plausible explanation what so ever in respect thereto it has been a long period since the date of allotment and the OP doesn't seem to be serious on the front of fulfilling its promised advertised plots. Even after protracted follow up and lapse of more than ten 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 daughter of 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.15,35,200/- paid/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 against the answering OP, in the present form under the law. The complaint has not been filed through any authorized legally competent person. Baljit Kaur is neither the attorney nor authorized as per law to file complaint or to swear any affidavit or produce any evidence on behalf of the allottee. It is further averred that the present complaint is time barred. The allotment was made on 02.04.2012 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 take possession and till date before filing of the present complaint had no objections/correspondence with JIT/OP 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 it was clearly mentioned in clause 5 that the allottee has to enter into sale agreement of the plot within 30 days and if he does not do so then as per clause 6 JIT shall be within its rights to cancel the allotment and forfeit all deposited amount. The allottee entered into sale agreement with the OP belatedly on 11.03.2015. It is further averred that the complainant has got no cause of action to file the present complaint against the OP. On merits, all the 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 proved fact that the plot No.189-C of the development scheme 94.97 acre known as Surya Enclave Extension was allotted to the complainant, vide allotment letter dated 02.04.2012, which has been proved as Ex.C-10. 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-2 to Ex.C-9. 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 10 years. Photographs of the area and newspaper cuttings, which highlighted the conditions and progress in the area has been proved on record as Ex.C11 to Ex.C16.

7.                The contention of the OP is that the complainant has not been filed through any authorized legally competent person. Baljit Kaur is neither the attorney nor authorized as per law to file complaint, but this contention is not tenable as as per Ex.C-17 Mandeep Kaur authorized her mother Baljit Kaur to represent for and on behalf her to file a consumer complaint and to engage and instruct Advocate, sign Vakalatnama, applications, affidavits, reply or any other legal documents relating to the complaint to be filed.

8.                The OP has further contended that the present complaint is time barred, 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, which has been proved as Ex.C11to Ex.C16. 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 complainant has failed to enter into sale agreement within stipulated time i.e. 30 days from the date of allotment, but the same was entered belatedly on 11.03.2015, but despite that the complainant failed to take possession or even file any application 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 ‘near 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 “Manoj BagroyVs. 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 an 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.

9.                The OP has argued that the complainant is defaulter as she has not deposited the entire amount, but this plea of the OP is also not tenable as the complainant has deposited the entire amount with interest, which has been proved from demand draft and receipts Ex.C3 to Ex.C8, perusal of which show that as per schedule mentioned in Ex.C-10 entire amount has been paid.

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 to 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 entered into sale agreement belatedly on 11.03.2015 and despite execution of the sale agreement the allottee failed to take possession, but this contention is not tenable as despite the execution of sale agreement, the possession with complete amenities, as per Ex.C-10 has not been delivered. 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