BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.140 of 2022
Date of Instt. 28.04.2022
Date of Decision: 30.10.2024
Vinita Sharma wife of Sh. Subhash Sharma resident of Ladowali Road, Opp. Govt. College of Education, Backside Supreme Pipe, Jalandhar through attorney Sh. Subhash Sharma son of Late Shri Bhagat Ram resident of Ladowali Road, Opp. Govt. College of Education, Backside Supreme Pipe Jalandhar.
..........Complainant
Versus
1. Jalandhar Improvement Trust through its Chairman.
2. The Chairman, Improvement Trust, Jalandhar.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. Daman Vir Singh, Adv. Counsel for Complainant.
Sh. Brijesh Bakshi, Adv. Counsel for OPs.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that the OPs sold the plot No.545-A of 70.5 Acre Scheme Maharaja Ranjit Singh Avenue Jalandhar to Hans Raj son of Himmat Singh r/o 635/512 Ward No.15 Sanjay Nagar, Rohtak, Haryana vide allotment No.JIT/9381 dated 17.11.2007 and the complainant purchased the plot bearing No.545-A/70.5 Govt. Scheme Maharaja Ranjit Singh Avenue from Han Raj son of Himmat Singh resident of 635/512 Ward No.15 Sanjay Nagar, Rohtak, Haryana, vide letter No.4768 dated 21.03.2012. Thereafter, the complainant used to pay the remaining allotment price of 545-A of 70.5 Acre Scheme Maharaja Ranjit Singh Avenue Jalandhar and the complainant deposit the transfer fee of Rs.96,750/- vide receipt no.49300 dated 01-03-2012 and the OPs issued the allotment letter to the complainant vide allotment no.4768 dated 21.03.2012. Since then, the complainant has not been put into the possession of the plot by the OPs and the complainant has deposited all the charges including non-construction charges of the plot since 2014 till date. It is particularly mentioned here that in the year 2011, husband of the complainant namely Sh. Subhash Sharma, being the attorney of Hans Raj moved an application to the opposite parties received on dated 18.05.2011 in which he categorically requested to the OPs that the possession of the above said plot be delivered and further requested to get deposit the remaining payment against the above said plot. Although, the complainant regularly visited the OP's office, but the OPs put the matter off and on and ultimately, OPs on 26.05.2017 issued the letter no.7415 to the complainant to deposit the total amount i.e. Rs.3,10,962/-, out of which Rs.2,63,662/- was non-construction charges. The complainant being a law abiding citizen deposited the above said amount to the office of OPs vide receipt 66103 dated 11.07.2017. But, on the time and again request made by the complainant, the OPs failed to give the possession to the complainant and on the other hand, the OPs time and again claiming the non-construction charges from the complainant and the complainant being law abiding citizen and bonafide belief that the amount has to be deposited by her deposit Rs.53,400/- vide receipt no.69697 dated 28.12.2018, again Rs.53,400/- vide receipt no.72020 dated 27.12.2019 and again Rs.41,960/- vide receipt no.73496 dated 19.10.2020. The complainant again moved the application to OPs office on 10.08.2021 and 31.08.2021 and requested the OPs to hand over the possession to the complainant. Few months ago, when the officials of OP's office visited the spot along with the complainant to give her possession, but failed to give her possession as there is sludge water over the plot about 6 to 7 feet and the officials of the OP's reported on the file that the possession cannot be delivered as at the spot, the sludge water of the adjoining colonies and houses is naturally get stored over the plot in question. Once, the OP's office is unable to give the possession to the complainant by this time, then the OPs has no right to get the non-construction charges from the complainant and the charges obtained by OP's office are illegal and liable to be refunded to the complainant. On 23.10.2021 and 09.11.2021, the complainant served legal notices upon the OPs but all in vain 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 refund the amount of Rs.4,12,022/- alongwith interest i.e. 9% per annum which has been received by the OPs from the complainant as non-construction charges of plot bearing No.545-A/70.5 Govt. Scheme Maharaja Ranjit Singh Avenue, Jalandhar and to handover the possession of the plot bearing No.545-A/70.5 Govt. Scheme Maharaja Ranjit Singh Avenue, Jalandhar alongwith compensation amount alongwith interest @ 24% per annum to the complainant for such deficiency and negligence. Further, OPs be directed to pay a compensation of Rs.3,00,000/- for causing mental tension and harassment to the complainant and Rs.30,000/- as litigation expenses.
2. Notice of the complaint was given to the OPs, who filed 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 false and frivolous even to the knowledge of the complainant and is not maintainable against the OP. It is further averred that as per the terms and conditions of allotment the possession was offered to be taken by the allottee after execution of sale agreement with the Jalandhar Improvement Trust. As per the allotment conditions the possession of the Plot was on 'As is Where is Basis' and as per the status at site. The allotment of the said plot was made subject to the aforesaid terms and conditions and on the area under the plot increased or decreased due to any reason the allottee was bound to accept the same and pay accordingly either additional amount for increased area or get refund of paid amount for decreased area as per measurement of the plot at site. Thereafter the area of the plot as per actual demarcation came out to be 355 Sq. Yds. The allottee failed to deposit the installments or to enter into sale agreement with the Jalandhar Improvement Trust and as such further never sought possession from the Jalandhar Improvement Trust and as such it was presumed that the possession has been delivered to him free from encumbrances as per allotment terms and conditions. Therefore Letter no.JIT/888 dated 23.06.2011 was issued to the allottee Hans Raj to deposit the installments and further to deposit the due non-construction charges on account of not raising construction at site otherwise the allotment was liable to be cancelled and the deposited amount was to be forfeited in favour of Jalandhar Improvement Trust. But the allottee failed to comply with the same, however, Subhash Sharma S/o Sh Bhagat Ram moved application to deposit the amount of Rs.8,50,000/- and the same was accepted as part payment of the due amount on behalf of the allottee. Thereafter vide application dated 08.11.2011 the complainant Vinita Sharma being the purchaser applied for the transfer of the said plot in her favour and she further informed that the plot is lying vacant. The same was also signed by aforesaid Subhash Sharma. Complainant further furnished undertaking to raise construction on the plot within stipulated period as per plans. The said seller/attorney also furnished his declaration regarding sale and receipt of sale price of the plot. Thereafter on the basis of the documents and undertaking furnished by them the plot was transferred in the name of the complainant vide transfer Letter No.JIT/ 4268 dated 21.03.2012 as per the terms and conditions laid therein. Thereafter there was no protest, demur or objection or any letter from the complainant. It is further averred that no actionable claim has ever arisen to the complainant to file the present complaint against the OP. It is further averred that the present complaint is not maintainable being barred by limitation. 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. Originally Hans Raj S/o Himmat Singh was allotted the plot No.545-A Maharaja Ranjit Singh Avenue vide letter dated 19.11.2007 Ex.C-2. The complainant has proved the receipts showing that the payment was made by Hans Raj vide receipt Ex.C-3 and thereafter the plot was transferred in the name of Smt. Vinita Sharma, vide Ex.C1. The complainant has alleged that since the allotment of the letter, the possession of the plot was not given to the complainant. The letter was also written by the complainant on 18.05.2011 making request to the OP to give the possession of the plot to her and to inform her about the balance amount so that she can deposit the entire amount. As per allegations of the complainant, the possession was never given to the complainant. Again letter was written Ex.C-9 to the OP on 10.08.2021 claiming that she should be handed over the possession and demarcation of the plot should be done, so that she can raise construction and build a house over the plot in question. Again vide Ex.C-10 she wrote a letter to the OP that the possession has not been handed over to her despite the letters written to the OP. Again the letter Ex.C-11 was written to the OP seeking the possession of the plot. Two legal notices were given to the OP, but to no effect. The complainant has also deposited the non-construction charges despite the fact that she was never given the possession of the plot. The receipt showing the payment of non-construction charges have been proved as Ex.C-4, Ex.C-6 to Ex.C-8. The contention of the complainant is that despite depositing the non-construction charges, demarcation was done nor the possession was given to the complainant even after the lapse of many years. The complainant has also proved on record the photographs, news clippings from the newspaper showing the actual condition of the plot in question. These news clippings have been proved by the complainant as Ex.C-24. Photographs have been proved as Ex.C-19 to Ex.C-23. She has also proved on record the letters written by the other allottees of plots No.543-A, 596-A vide which the allottees have sought the exemption of non-construction charges as the possession was not handed over to the allottees. The letters Ex.C-25 to Ex.C-32 have been proved by the complainant. This correspondence between the allottees and the OP clearly shows that the condition of the area, where the plots were allotted, was very shabby as the main sewerage line was passing through those plots and the sewerage water was collected in the plots. In such circumstances, this shows that there was no development and the plots allotted were not habitable and it was not possible to raise construction on such type of place.
7. On the other hand, the contention of the OP is that the present complaint is not maintainable as the same is time barred. The allotment of the plot was made to the complainant subject to the terms and conditions of the allotment. It was the allottee, who failed to deposit the installments and to enter into sale agreement with the OP, therefore, they never sought possession from the OP and it was presumed that the possession has been delivered to him free from encumbrances as per the allotment terms and conditions. The OP has relied upon the letter Ex.OP-2. Perusal of the Ex.OP-2 shows that they have demanded the 4th and 5th installment from the complainant alongwith non-construction charges. The complainant had deposited the amount of Rs.8,50,000/-, vide Ex.OP-3. Non-construction charges have also been deposited. It is not disputed that the plot was transferred in the name of the complainant. The documents of the transfer have also been proved by the OP alongwith declaration and undertaking Ex.OP-4 to Ex.OP-6. The OP has also proved the letter Ex.OP-7 demanding the non-construction charges from the complainant.
8. From the documents produced by both the parties, it is proved that the area, where the plots were allotted, was not developed at all nor the possession was handed over to the allottees nor the demarcation was done by the OPs. The other allottees have also made representations to the OP for exemption from depositing the non-construction charges as the area was not in such a condition, where the construction could have been raised. More so, when the possession was not given, no construction can be raised. This fact has been proved from the news cuttings of the newspapers and the photographs that the condition of the area, where the plots were allotted, was very pitiable.
9. With regard to the contention of the OP regarding the time barred, it is proved that the complainant remained in touch with the OP seeking possession and demarcation of the plot and also deposited non-construction charges, though, the possession was never handed over to the complainant. This fact has been admitted by the OP in their written statement also when they have admitted that the possession was never sought by the complainant nor agreement to sell was ever executed by the complainant, therefore, it is presumed that the possession has been delivered, but this contention is wrong on the face of it. If the complainant had not executed agreement to sell, the OP could have cancelled the allotment of the plot, but they kept on demanding the non-construction charges and the complainant was depositing the non-construction charges at the asking of the OP. 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 “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 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 allottees. 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. So, in view of the above said discussion, the acts of the OP by receiving the non-construction charges and not handing over the possession to the complainant are deficient in service. Without possession, how can it be presumed that one could raise construction over the plot and the possession cannot be presumed unless and until, completion certificate and amenities are provided to the allottees. So the demand and receipt of the non-construction charges by the OP from the complainant is wrong and illegal and is unfair trade practice. The OP cannot charge non-construction charges unless and until complete possession is handed over to the complainant. The OPs are directed to give the possession of the plot with complete amenities and facilities as proposed and promised by the OP at the time of allotment within three months from the date of receipt of the copy of order or to deliver the complainant any substitute plot with the choice and consent of the complainant within three months from the date of receipt of the copy of order, failing which the OPs are liable to pay the amount of the plot paid by the complainant for the plot with interest @ 9% per annum from the date of making deposits till its realization. Further, OPs are directed to pay a compensation of Rs.30,000/- for causing mental tension and harassment to the complainant and Rs.10,000/- as litigation expenses. 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.
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 Jaswant Singh Dhillon Jyotsna Dr.Harveen Bhardwaj
30.10.2024 Member Member President
