BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.471 of 2022

      Date of Instt. 20.12.2022

      Date of Decision: 10.04.2024

Madhu Kochhar about 66 years (Adhaar Card No.716375037732) W/o Sh. M. K. Kochhar, R/o H. No.5, Mohit Nagar, Dehradun, Uttrakhan 248006

..........Complainant

Versus

Jalandhar Improvement Trust, Model Town Road, Jalandhar City through its Executive Officer. Email ID:itjalandhar@gmail.com

….….. Opposite Party

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)

Present:       Smt. Harleen Kaur, Adv. & Miss Anchita, Adv. Counsels                 for the 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 that the complainant attracted and allured by OP venture for development of Surya Enclave Extension, published and advertised by OP to provide housing with ultra-modern facilities and amenities with high quality and standard UNDER 94.97 Acre Development Scheme in Surya Enclave Extension Jalandhar, applied for plot also promoted by various nationalized banks. The complainant had applied for plot measuring 200 sq. yards along with 10% earnest money of Rs.3,40,000/- alongwith all the requisite documents completed and complied with all the requirements earnest money. The complainant was allotted plot No.384-D, under the Vikas Scheme 94.97 Acre (Surya Enclave Extension), Jalandhar, as per allotment letter bearing No.JIT/3424 dated 13.02.2012 in lucky draw held on 04.11.2011 at the rate of Rs.17,000/- per sq. yds. Totaling to Rs.34,00,000/-, approved by resolution No.335 dated 08.11.2011 further approved by government vide memo no.8/31/11(9)-1ss2/3213 dated 07.12.2011. The site was to be developed within in 2½ 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. No date was purposely got mentioned on the said agreement of sale. As per settled principle law under the Consumer Protection Act a confirmed date should have been given for handing over of the possession, at the time of taking bookings and the booking amount, this in itself amounts to unfair trade practice. The complainant has deposited all the requisite papers for the registration of the application with the necessary fee and other formalities and payment were completed within the stipulated period. The only formality which was to be completed was to give the possession of allotted plot duly 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. The complainant paid the whole purchase price of plot in the sum of Rs.43,11,300/- inclusive of charges of corner plot. To the utter shock and dismay it was only later on that the complainant came to know that the said project which was carved out by the OP was under litigation before the Punjab and Haryana High Court, Chandigarh since 2011. Infact the said project was started by the OP in complete defiance to the governmental notification vide which all improvement trusts have been specifically asked to get NEC with respect to the whole land on which the proposed project was to be carved out. The said project was started by the opposite party even prior to taking of the actual physical possession of the total land under the scheme. However despite full payment the OP has deceived the complainant by misleading and fraudulent advertisement since the allotment of the plot is 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 10 years despite the fact that complainant personally visited the office of the OP for the same number of times despite the age factor. The complainant was shocked to see the terrible condition on the spot. Photographs of the area are attached from which the condition of hygiene and amenities is quite evident, newspaper cuttings highlighting the condition of the area is attached. There are no demarcations made by the department and plots cannot be identified. There are no motorable roads, water and sewage pipeline have not been connected to the main line thus making them unusable. 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 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.43,11,300/- 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 appeared through its counsel and filed its 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 time barred. The allotment was made 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 take possession and till date and has not got entitled to take possession as per her 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 an abuse of 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 barred by his own act, conduct, delay and laches and negligence from filing the present complaint case 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 has not approached the Court with clean hands and as such is not entitled to any relief from this Court. It is further averred that the complainant has got no cause of action to file the present case against the OP. On merits, the factum with regard to allotment of the plot No.384-D 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 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.384-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-3/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 and draft have been proved as Ex.C-4 and 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.C10 to Ex.C14.

7.                The contention of the OP is that the present complaint 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 herself has failed to take possession, 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 and these are from 2020 onwards, which has been proved as Ex.C-10 to Ex.C14. 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. Vide letter dated 16.02.2016, the OP asked the complainant to deposit arrears, execute sale agreement and take demarcations/possession at site, 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 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 and the complaint filed by the complainant was held to be within limitation.  

8.                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 possession could be taken after entering into sale agreement within 30 days from allotment as per Clause (5) of the allotment letter, but the complainant failed to do so. If the complainant does not comply with the provisions of sale agreement or do not take possession, then the JIT was within its rights to cancel the allotment and forfeit all deposited amount 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 for execution of the sale agreement, the OPs can cancel the allotment, but the OP failed to send any notice nor the allotment was ever cancelled. The OP has referred clause 13 of the allotment letter. Clause 13 deals with the amount enhanced by the trust or by the court. Ex.OP2 is not regarding the arrears of any enhanced amount. This letter itself shows that the construction work was incomplete. In this letter no due amount has been mentioned. Therefore, this argument is not tenable.

9.                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.

10.               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.5000/-. 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 Flat deposited by the complainant. This complaint could not be decided within stipulated time frame due to rush of work.

11.              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                                           Jyotsna                     Dr. Harveen Bhardwaj     

10.04.2024                        Member                            President