BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.283 of 2022

      Date of Instt. 16.08.2022

      Date of Decision: 14.07.2023

Sh. Trilochan Singh Sangha, aged about 69 years (Aadhar Card No.8879-7346-4393) S/o Sh. Roda Singh Sangha, R/o 5, Professor’s colony, PO-PAP Lines Jalandhar. Mob No.94171-20121.

..........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)

                   Sh. Jaswant Singh Dhillon       (Member)                                

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

                   Sh. Brijesh Bakshi, Adv. Counsel for the 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. yds. alongwith 10% earnest money of Rs.3,40,000/- through a Punjab National Bank, Pension Branch, Chandigarh Road, Hoshiarpur, after availing loan from the said bank, which was duly repaid by the complainant alongwith all the requisite documents completed and complied with all the requirements. The complainant was allotted plot No.270-D, under the Vikas Scheme 94.97 acre (Surya Enclave Extension), Jalandhar as per allotment letter bearing No.JIT/3413 dated 13.02.2012 in lucky draw held on 04.11.2011 @ 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. As per the said allotment letter in case of delayed payment the opposite party was entitled to receive interest at the rate of 11% in case of delay for one month, 12% in case of delay for two months, 13% for delay of three months, 14% for delay for four months, 15% for delay for five months and 16% for delay for six months. To the extent that after period of 6 months if the allottee failed to pay the installment the plot shall be confiscated by the opposite party. In the event of confiscation of plot on default the re-allotment will be done to the allottee only after the payment of interest as penalty, 20% restoration charges and 6% penalty on the amount shall be calculated as per governmental instructions/directions from time to time. The site was to be developed within in 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. The first payment for the agreement of sale was duly made vide receipt no.49441 dated 13/03/2012 charged Rs.950/-. 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 prospective 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.34,00,000/- to opposite party as per the allotment letter bearing no.JIT/3413 dated 13-02-2012 along with interest amount as and when due and penalty amount which in total amounted to Rs.39,19,650/-. Subsequent to full payment and all compliances by the complainant, it was found that OP had deceived the complainant by misleading and fraudulent advertisement since the allotment of the plot was fake, the area where the plots has been allotted is uninhabitable and unlivable. The complainant was shocked to see the terrible condition on the spot. Neither the OP has developed the site nor offered possession 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. Even though the OP is falsely claiming to have started the development work and alleged demarcations of plots on sites but the actual position is the opposite well supported by the photographs and various new articles. 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, 120 ft. road not connected to motorable through Damoria Bridge as advertised and promised. The manhole sewerage of Guru Gobind Singh Avenue is blocked because of which the sewerage effluents are filling up the plots in the D block of Surya Enclave Extension. No electricity connection is available till date. The condition further worsens during the rainy season as water clogging take place and with the area being used as a dumping ground the area emanates unbearable stink, there is an extensive growth of weeds. There are illegal occupations even on the main access road which passes through C block till date. 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 promise for the advertised plots. It is also pertinent to mention here that the said scheme was to be developed as well equipped with ultra-modem  facilities and well developed surroundings but now it has come to the knowledge of the complainant that OP is moving the illegal colony of Kazi Mandi in the area adjacent 6.50 acre, which was reserved for multistory flats as advertised, thereby which in turn will also be effecting the locality supposed to be developed as ultra-modern and further diminishing the value of plots in the adjacent area of D- block. To the utter shock and dismay of the complainant he came to know in the year 2014 subsequent to request letter dated 18/07/2014 for possession that the area/land on which the said project was curved out by the OP was under litigation before the Hon'ble Punjab and Haryana High Court, Chandigarh since in 2011. The said project was started by the opposite party even prior to taking of the actual possession of the total land under the said scheme in complete defiance of government notification. Even after protracted follow up and lapse of more than 10 years from the date of allotment OP has been 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 deceiving the complainant and as such necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to return/refund an amount of Rs.39,19,650/- 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 complaint is not maintainable against the answering OP in the present form under the law. It is further averred that the present complaint is time barred. The allotment was made on 13.02.2012 and he 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 an abuse of process of law. No actionable claim has ever arisen to the complainant to file the present complaint against the OP. The plot in question i.e. Plot No.270-D of the Development Scheme 94.97 Acre known as Surya Enclave Extension was allotted to the complainant vide allotment letter no.JIT/3413 dated 13.02.2012 and the complainant received and acknowledged the same. 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 his own default barred from seeking possession. As per the terms and conditions of the allotment the allottee could take possession after entering in to sale agreement. But the complainant failed to make sale agreement OR to take possession OR even file any application for possession. Whereas it was stood understood that he had took possession of his own accord but the complainant failed to raise construction or to take any further steps and thus he is bound to pay the non-construction charges and now to save himself he has wrongly filed the present compliant claiming non-delivery of possession. The OP is not under any contractual obligation to write letters or trace out complainant to execute sale agreement or to search and give possession but still the to remove any doubts the letter no.JIT/4894 dated 26.02.2016 within 2 years of allotment was issued to the complainant to deposit arrears, execute sale agreement and take demarcation/ possession at site. Even thereafter upfront a Letter No.JIT/381 dated 18.08.2021 was issued to the complainant regarding the completion of facilities, clear possession and asked to take possession at site. But to no effect rather by concealment of facts the present complaint has been filed by the complainant. The allottee clearly defaulted and he miserably failed to either approach or writes even a single letter to the OP to take possession whereas the Trust never refused possession rather had been performing its due part throughout. Thus, clearly it does not lie in the mouth of the complainant to say that Trust defaulted in any manner whatsoever when he had defaulted and flouted the terms and conditions of allotment and failed to seek possession as per terms and conditions of allotment. However, OP has throughout been in a position to deliver the possession and has never refused to give possession and even now Commission may fix any time or date and without any delay or ado the OP is ready to deliver the possession of the plot in dispute to the complainant. 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. 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. The complainant has got no cause of action to file the present case against the OP. The OP is a statutory body duty bound under the Punjab Town Improvement Act 1922 (hereinafter called "Act") to seek the compliance of the statutory provisions and rules as per the Act and it cannot be restrained from seeking the compliance of conditions pertaining to the allotments and charging of prices thereof regarding plots/ flats in its development schemes. The allotments are subject to the provisions of the brochure, allotment letter and the Act, rules and other relevant Government instructions and the allottees/Complainant are bound by the same. On merits, the factum with regard to allotment of the plot 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 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.                The allotment of the plot is not disputed rather it is admitted fact. Now the first point to be decided is as to whether the complaint is time barred or not. As per the contention of the OP, the allotment was made on 23.12.2011, but the complainant has failed to take possession or even file any application for possession, but this contention is not tenable as the photographs and news publications have been proved on record by the complainant, which are from different newspapers and these are from 2020 onwards, which have been proved as Ex.C13 to Ex.C22 and Ex.C-27 to Ex.C-30 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. Perusal of letter dated 18.08.2021 Ex.OP-3 shows that it was noted that the portable roads, water/ sewerage and street lights have been available. So, it cannot be said that the present complaint is time barred as the same was filed on 16.08.2022 which is within time. 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.                With regard to non-entering of the agreement to sell. 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 OPs. The OPs have alleged that they were to take the possession within 30 days from the allotment, but this contention is not tenable. If the complainant failed to take the possession 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 or cancel the allotment, but the OP failed to send any notice nor the allotment was cancelled. 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.

9.                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 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. This complaint could not be decided within stipulated time frame due to rush of work.

10.              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     

14.07.2023         Member                          Member             President