Chandigarh

StateCommission

CC/160/2019

Parminder Kaur - Complainant(s)

Versus

M/s Emerging Valley Private Limited - Opp.Party(s)

Tejpal Sharma & Sudershan Moudgil Adv.

09 Apr 2021

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	160 of 2019
Date of Institution	:	22.07.2019
Date of Decision	:	09.04.2021

 

Parminder Kaur wife of Sh. Kanwarjeet Singh R/o House No.4212, Ram Nagar Mandi, Post Office, Mandi Tehsil Sadar, Mandi Himachal Pradesh 157001 through her SPA Holder Sh. Kanwarjeet Singh.

……Complainant

V e r s u s

1. M/s Emerging Valley Private Limited, SCO No.46-47, 1^st Floor, Sector 9-D, Near Matka Chowk, Chandigarh through its Managing Director Sh. Gurpreet Singh Sidhu.
2. Sh. Gurpreet Singh Sidhu, Managing Director/Authorized Signatory of M/s  Emerging Valley Private Limited, SCO No.46-47, 1^st Floor, Sector    9-D, Near Matka Chowk, Chandigarh.

…..Opposite parties

Present through video conferencing:

                              

                   Sh. Tejpal Sharma, Advocate for the complainant.

Sh.J.S. Rattu, Advocate for the opposite parties.

 

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Complaint case No.	:	445 of 2018
Date of Institution	:	29.11.2018
Date of Decision	:	09.04.2021

 

Nacchattar Kaur W/o Sh. Manjit Singh, resident of House No.7030, Back Side New Bus Stand, Bathinda, Punjab.

……Complainant

V e r s u s

 

1. Emerging India Bathinda Private Limited, Corporate Office at S.C.O. No.46-47, First Floor, Sector – 9D, Near Matka Chowk, Madhya Marg,  Chandigarh through its Managing Director/Director/Authorised Signatory.
2. Gurpreet Singh Sidhu, Managing Director of Emerging India Bathinda Private Limited, Corporate Office at S.C.O. No.46-47, First Floor, Sector – 9D, Near Matka Chowk, Madhya Marg,  Chandigarh.
3. M/s Mega Holding Private Limited, Registered Office at 63, Near T.V. Tower, Phase-I, Model Town Bathinda through its promoter/Managing Director/Owner.
4. Harmanpreet Gill S/o Jaspal Singh Gill, Promoter of M/s Mega Holding Private Limited, Registered Office at 63, Near T.V. Tower, Phase-I, Model Town Bathinda R/o House No.1071, Phase-3B2, S.A.S. Nagar (Mohali), Punjab.
5. Lovedeep Singh S/o Baldev Singh R/o House No.16265-D, Gali No.12/4, Guru Gobind Singh Nagar, Bathinda, authorized person of M/s Mega Holding Private Limited, Registered Office at 63, Near T.V. Tower, Phase-I, Model Town Bathinda.

…..Opposite parties

 

Present through video conferencing:

                              

                   Sh. R. S. Dhillon, Advocate for the complainant.

Sh.J.S. Rattu, Advocate for opposite parties  No.1, 2 & 4.

Sh. Parshant Sethi, Advocate for opposite party No.3.

Opposite party No.5 exparte vide order dated 26.11.2019.

 

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BEFORE:            JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                          MRS. PADMA PANDEY, MEMBER.

                          MR.RAJESH K. ARYA, MEMBER.

 

PER  RAJESH K. ARYA, MEMBER

                    By this order, we propose to dispose of the aforesaid two consumer complaints. Since, the facts involved in the above complaints, except minor variations, here and there, of law and facts are the same, therefore, we are of the opinion that these complaints can be disposed of, by passing a consolidated order.

2.           Consumer Complaint No.160 of 2019 titled ‘Parminder Kaur Vs. Emerging Valley Private Limited & Ors.’ has been filed by the complainant seeking possession of the flat, in question, alongwith compensation of Rs.5 Lakhs & litigation cost to the tune of Rs.2 Lakhs or in alternative to refund the whole amount of Rs.15,56,250/- alongwith interest @12% p.a. besides compensation and litigation expenses. However, in the written arguments filed, the complainant confined his prayer for refund of the whole amount alongwith interest @12% p.a. besides compensation and litigation expenses.
3.           Briefly stated the facts are that on 27.03.2014, the complainant booked 2BHK flat, 3^rd Floor in the project of the opposite parties i.e. Emerging Valley Pvt. Ltd. (PREMIUM TRINITY HOMES), Landran Banur Road, Mohali, Punjab and as such, he was provisionally allotted the same vide Provisional Allotment dated 09.04.2014. The area of the said flat was 720 sq. ft. Against its total cost of Rs.16,25,000/-, the complainant, in all, paid an amount of Rs.15,56,250/- to the opposite parties. As per Clause N of terms and conditions annexed with the allotment letter, aforesaid, the possession of the said flat was to be delivered by the opposite parties within 3 years from the date of allotment. Final Allotment Letter was issued to the complainant on 20.04.2015 and thus, the possession, by taking three years from the date of this allotment letter, was to be delivered by the opposite parties up-to  19.04.2018. It has been stated that possession of the said flat has not been offered by the opposite parties. By stating that the aforesaid act and conduct of the opposite parties, amount to deficiency in providing service and adoption of unfair trade practice, this complaint has been filed by the complainant.  
4.           The claim of the complainants, in both complaints has been contested by the opposite parties, on numerous similar grounds,  inter alia, that the complainant did not fall within the definition of “consumer” as the flat in question was purchased for commercial purposes; that this Commission did not have pecuniary to entertain the complaint; that the project was delayed on account of red-tapism in the offices of different departments of the Government and that was why; the competent authorities delayed in granting approvals/sanctions. While applying the theory of force majeure circumstances (which means irresistible circumstances beyond one’s control such like act of God), it has been alleged that delay in delivery of possession occurred, also on account of high cost of labour, material etc.; that the company is endeavoring to complete the project at the earliest alongwith handing over possession; that the complainant made payment of Rs.11,38,750/- and not 16,56,000/-, as alleged by him and also did not follow the payment schedule which resulted into delay in development activities and possession; that the flat is ready for possession and the same can be taken once the complainant clears the arrears of payment. Remaining averments were denied being wrong.
5.           The parties led evidence in support of their cases.
6.           We have heard the contesting parties and have gone through the entire record of the case and the written arguments of the complainant, very carefully.
7.           First of all, coming to the objection taken to the effect that the complainant did not fall within the definition of ‘consumer’, it may be stated here that the objection raised is not supported by any documentary evidence and as such, the onus shifts to the opposite parties to establish that the complainant have purchased the flat, in question, in the manner explained above, to indulge in ‘purchase and sale of plots’ as was held by the Hon’ble National  Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since they failed to discharge their  onus, hence, we hold that the complainant is a consumer as defined under the Act. Objection taken in this regard as such stands rejected.
8.           Coming to the next objection raised with regard to jurisdiction of this Commission in the face of existence of Arbitration clause No.36 in the Buyer Agreement is concerned, it may be stated here that firstly, the alleged Agreement has not been placed on record by the parties and secondly, though we did not find any such clause of arbitration in any of the document placed on record, still, we want to  mention here that this issue has already been dealt with by the larger Bench of the Hon’ble National Commission in a case titled as Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, wherein, vide order dated 13.07.2017, it has been held that an Arbitration Clause in the Agreements between the complainant and the Builder cannot circumscribe the jurisdiction of a Consumer Fora notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon’ble Supreme Court of India, which was dismissed vide order dated 13.02.2018. Even the Review Petition (C) Nos. 2629-2630 of 2018 filed by the builder in Civil Appeal Nos.23512-23513 of 2017 against order dated 13.02.2018, was dismissed by the Hon’ble Supreme Court of India, vide order dated 10.12.2018. As such, objection raised by the opposite parties, otherwise also, in this regard, stands rejected.
9.           The next objection raised by the opposite parties that the complaint is bad for mis-joinder and non-joinder of necessary parties is general in nature as the opposite parties have not disclosed the names of such parties. Therefore, the objection raised being not sustainable in the eyes of law is rejected.
10.           Now coming to the objection taken regarding pecuniary jurisdiction, it may be stated here that this complaint has been filed under the Consumer Protection Act, 1986, under which, for determining pecuniary jurisdiction, the Consumer Foras were required to take into consideration the value of the goods and compensation claimed if any. In the present case, if the total value of the flat in question and compensation claimed are clubbed together, the same exceeds Rs.20 lacs and fell below Rs.1 crore, respectively. Thus, this Commission has got pecuniary Jurisdiction to entertain and decide this complaint. Objection taken in this regard stands rejected.
11.           There is no dispute with regard to purchase of flat by the complainant in the project of the opposite parties. However, receipt of Rs.15,56,250/- has been disputed by the opposite parties and rather, the opposite parties have admitted receipt of Rs.11,78,750/- only from the complainant. In this regard, it may be stated here that the complainant has placed on record Payment Confirmation letter dated 05.07.2019 issued by the opposite parties on the letterhead of the Company – Emerging Valley Pvt. Ltd., wherein it has been categorically confirmed that the amount of Rs.15,56,250/- was received by the Company till the date of issuance of the said letter i.e. 05.07.2019. In this view of the matter, there is no doubt that the opposite parties received the amount of Rs.15,56,250/- from the complainant and their contention that they received only an amount of Rs.11,78,750/- is bereft of any merit and substance.
12.           There is also no dispute that as per Clause N of the terms and conditions annexed with the provisional allotment letter dated  09.04.2014, possession of the flat, in question, was to be delivered by the opposite parties within a period of 3 years from the date of issuance of allotment letter. If we take 3 years from the date of provisional allotment letter, then possession was to be delivered up-to 09.04.2017 and in case, subsequent allotment letter, which was issued by the opposite parties on 20.04.2015 is taken for calculating such period then the possession was to be delivered by the opposite parties i.e. up-to 20.04.2018. Admittedly, possession of the flat, in question, has not been offered and delivered within the said reasonable period or till date.  It was also stated in this clause that in case the company fails to give possession within the aforesaid stipulated period then, the company shall be liable to pay interest @12% p.a. on the installments paid by the complainant till date of delivery of actual possession.
13.           The complainant has contended that the project of the opposite parties was not approved and the same has been launched in violation of the provisions of relevant Rules, Regulations and Act. Whereas, on the other hand, the opposite parties, through their Counsel have stated that they have obtained all the approvals/sanctions from the competent Authorities; that from the very beginning, the complainant were requested number of times to come forward for execution of the agreement and also to take over possession of the flat but they failed to do so.
14.           It may be stated here that once the opposite parties, in the first instance, had already received substantial amount from the complainant, it was required of them to execute agreement under law within a reasonable period say two to three months; raise demands in accordance with the stage of development at the project site; complete the development work; obtain completion certificate from the competent authorities; and then deliver possession of the plots in dispute to the complainant. However, instead of doing that, it is evident from the record that the opposite parties were interested only in raising demands from the complainant.  Thus, the act of raising demands and receiving substantial amount, as referred to above, without executing the agreement, was not only unfair but illegal, which act also contravenes Section 6 (1) of the PAPR Act,  which lays a duty on the opposite parties to execute the agreements for sale as per law, after obtaining the maximum sale consideration of 25%. It is apposite here to reproduce the said provision: -

“6. Contents of agreement of sale:- (1) Notwithstanding anything contained in any other law for the time being in force, a promoter who intends to construct or constructs a building of apartments, all or some of which are to be taken or are taken on ownership basis, or who intends to offer for sale plots in a colony, shall, before he accepts any sum of money as advance payment or deposit, which shall not be more than twenty five per cent of the sale price, enter into a written agreement for sale with each of such persons who are to take or have taken such apartments, or plots, as the case may be, and the agreement shall be in the prescribed form together with prescribed documents and shall be registered under the Registration Act, 1908 (Central Act No. 16 of 1906) ;

Provided that, if only a refundable application fee is collected from the applicant before draw of lots for allotment, such agreement will be required only after such draw of lots.

(2) xxxxxxxxxxxxxxxx……………...

(3) xxxxxxxxxxxxxxxxx……………….”

The opposite parties were legally bound under law to execute the agreement and to get the same registered under the Registration Act 1908, after obtaining 25% of the sale consideration, but in this case, the said provision has been violated. It is also pertinent to mention here that as per Clause A of the terms and conditions annexed with the provisional allotment letter dated 09.04.2014, final allotment was to be made until a proper buyer’s agreement was executed between the parties. Despite executing the buyer’s agreement, the subsequent allotment letter dated 20.04.2015, which was against the terms and conditions of the provisional allotment letter. The opposite parties were deficient in providing service and adopted unfair trade practice on this count.

15.           Now the moot question which falls for consideration is, as to whether, the opposite parties were competent to launch the project, in question, and also to sell the units/flats/plots therein or not. It may be stated here that recently, in Consumer Complaints No.80 of  2019 titled ‘Anjali Dogra Vs. Emerging Valley Pvt. Ltd. & Ors.’ & 156 of 2019 titled ‘Ashok Kumar Vs. Emerging Valley Pvt. Ltd.’, decided by this Commission vide common order dated 04.01.2021, this Commission placed reliance on RTI/document dated 19.12.2017, Annexure C-8 (in CC No.156 of 2019) and 20.06.2017, Annexure C-5 in (CC No.80 of 2019), supplied by Greater Mohali Area Development Authority (GMADA) i.e. the competent Authority, wherein, it was intimated that the said Company (Emerging Valley Pvt. Ltd.), had applied to get licence to develop a colony;  Letter of Intent (LOI) was issued, but, since the company failed to fulfill the conditions contained in the said LOI, licence was not issued to it and that it cannot sell plot or flat in the said project without obtaining the same (license). Relevant extract from our order dated 04.01.2021 reads thus:-

“17.    Xxxxxxxxx

Translated copy of the said letters read as under:-

 

“GREATER MOHALI AREA DEVELOPMENT AUTHORITY, PUDA BHAWA, SECTOR 62, S.A.S. NAGAR

(Town Planning and Licensing Shakha)

To

                    Sh.Manvir Singh

Home No.447, Type-2,

Punjab Mandi Board Complex

Sector 66, S.A.S. Nagar

 

Letter No.STP/GMADA/A-2/2016/1866 dt. 20/06/2017

 

Subject: Sh.Manvir Singh (File No.10919) through RTI Act, 2005 for information (Diary No.465 dated 05.06.2017)

 

The information sought Regarding the above subject, it is stated that M/S Emerging Valley Private Limited applied for setting up a colony at Village Nogiari district SAS Nagar and for taking up the license in this office but the promoter of the colony could not fulfil the conditions of letter of intent, the licence was not issued to the promoter. The promoter of the colony cannot sell a plot, flat and boths without taking the license.

 

Sd/- Administrative Office Licensing

GMADA, S.A.S. Nagar

 

Endorsement No.GMADA STP/2016             dated

 

copy of the above is hereby sent to Administrative officer (Coordination) SAS Nagar with reference to his letter No.1222 dated 08/06/2017 for information.”

 

The opposite parties failed to place on record any evidence to rebut the contentions made by the complainants or to the RTI referred to above.  From the contents of RTI aforesaid, it has been proved that the project in question has been launched with complete violation of the provisions of the PAPR Act and other relevant Rules and Regulations. Even licence to launch the said project has not been obtained by the opposite parties.  The said violation amounts to adoption of an unfair trade practice, which is glaring and vivid on the part of the opposite parties.

18.     Not only as above, recently also when a similar controversy came up for adjudication in respect of the same project in Gurdev Kaur Thind Vs. Emerging Valley Pvt. Ltd. and ors., CC No. 15 of 2020  decided on 21.12.2020, to convince ourselves, as to whether the allegations  of similar nature as have been leveled by the complainants in these complaints to the effect that the project has been launched without necessary approvals and licence and that the opposite parties are not in a position to deliver possession of the plots in question, in near future also, are correct or not, this Commission, during pendency of that complaint (Gurdev Kaur Thind, supra), ordered an enquiry to be conducted by the Deputy Commissioner, SAS Nagar, Mohali  and also by Chief Administrator Mohali Area Development Authority   (GMADA), as to whether Emerging Valley Private Limited was in fact the owner of plots sold in the project- Emerging Valley, Village Naugiari, Tehsil and District Mohali  or not  and was shocked to receive enquiry report dated 27.11.2020 from the Additional Chief Administrator, GMADA, wherein, it was in a very candid manner stated that under the garb of permission of  Change of Land Use (CLU), the opposite parties constructed unauthorized colony (the project- Emerging Valley Private Limited) without obtaining licence in that regard, as a result whereof, FIR has also been registered against the Directors of the Company and also they have been directed to demolish the unauthorized construction in the said project but they failed to take any action in that regard. Other serious allegations alongwith documentary evidence were also leveled by the GMADA, in the said enquiry report. Relevant part of the case Gurdev Kaur Thind, supra, reads as under:-

“Now coming to the main dispute qua non delivery of actual physical possession of the plot to the complainant, it may be stated here that to convince ourselves, as to whether the allegations leveled by the complainant in this complaint to the effect that the project has been launched without necessary approvals and licence and that the opposite parties are not in a position to deliver possession of the plot in question, in near future, this Commission, during pendency of this complaint,  ordered an enquiry to be conducted by the Deputy Commissioner, SAS Nagar, Mohali  and also by Chief Administrator Mohali Area Development Authority   (GMADA), as to whether the opposite Parties i.e. Emerging Valley Private Limited were in fact the owner of plot No.55, Emerging Valley, Village Naugiari, Tehsil and District Mohali  or not? However, this Commission was surprised, when enquiry report dated 27.11.2020 was received from the Additional Chief Administrator, GMADA, wherein, it was in a very candid manner stated that under the garb of permission of  Change of Land Use (CLU), the opposite parties constructed unauthorized colony (the project in question) without obtaining licence in that regard, as a result whereof, FIR has also been registered against the Directors of the Company and also they have been directed to demolish the unauthorized construction in the said project but they failed to take any action in that regard. Other serious allegations alongwith documentary evidence (Annexure A-1 to A-13)  has also been leveled by the GMADA, in the said enquiry report, relevant contents whereof are reproduced hereunder:-

 

 “…Enquiry Report

 

1.       That in this regard, it is humbly submitted that the facts of the case are that on 05.07.2012 field staff of office of GMADA reported the matter that an unauthorised colony namely 'Emerging Valley' is being developed, on Landran-Banur scheduled road. On the basis of this field staff report, vide letter no. 1425 dated 17.07.2012 (Annexure A-I), a complaint was made to the SSP, SAS Nagar for registration of FIR for violation of the provisions of the Punjab Apartment and Property Regulation Act, 1995(hereinafter PAPRA, 1995).
2.       That thereafter, vide letter no. 2728 dated 02.11.2012, the Assistant Public Relation Officer, GMADA, Ajitgarh (SAS Nagar) was directed by Estate Officer, GMADA to give the public notice in English and Punjabi newspapers about the development of unauthorised colonies/ Projects falling within the jurisdiction of GMADA and consequently public notices were given in various newspapers making the general public aware that 'M/s Emerging India Housing Corporation Private Ltd' has not been issued any License for the development as an approved colony by GMADA, as such no plot/ apartment can be offered for sale by the said company. Copy of letter dated 02.11.2012 and clips of newspapers have been annexed herewith as (Annexure A-2) colly.
3.       That thereafter, M/s Emerging Valley Pvt. Ltd, after depositing tentative charges Rs. 1,45,66000( One Crore, Forty Five Lakh and Sixty Six Thousands only), obtained the permission for Change of Land Use (CLU) vide letter no. 1983 dated 04.07.2013 (Annexure A-3) Colly. This CLU was valid for two years from the date of grant of permission. As per the conditions v,vi and vii of CLU, the promoter company was bound to get License under PAPRA, 1995 before making any development/construction at the site.
4.       That, but under the garb of permission for Change of Land Use the Promoter Company constructed the unauthorised colony without getting license from the Competent Authority.
5.       That thereafter, when the Promoter company did not stop unauthorised construction and the Police Department did not take any action on the earlier complaint dated 17.07.2012, another” complaint, vide letter no. 1115 dated 23.04.2014 (Annexure A-4), was made to SSP, SAS Nagar to register FIR under PAPRA,1995 against the Promoter Company.
6.       That thereafter, in reference to Promoter Company's application for issue of License of Colony, dated 28.01.2013 ,over 25 acres of land for which the Promoter Company had already obtained permission for change of land use, the Competent Authority-cum-Chief Administrator issued Letter of Intent (LOI) to the Promoter Company vide memo no. 1303 dated 06.05.2015 (Annexure A-5). This LOI was issued subject to certain conditions mentioned therein and these conditions were to be fulfilled within thirty days from the date of issue of the notice. However the Promoter Company failed to fulfill the conditions laid down in LOI, consequently LOI was cancelled vide letter no. 2465 dated 11.08.2015 and License of Colony could not be issued.
7.       That thereafter, when even without getting the License of Colony, the Promoter Company started the development of unauthorised colony, a show cause notice, regarding demolition of unauthorised construction, was issued vide letter no. 4801 dated 01.12.2015, directing thereby to stop the unauthorised construction immediately and to come present, within thirty days, before the Competent Authority and show cause why the unauthorised construction made by the Promoter Company should not be demolished. This show cause notice was issued for violating the provisions of the Punjab Apartment and Property Regulation Act, 1995, the Punjab Regional and Town Planning and Development Act, 1995 and the Punjab New Capital(Periphery) Control Act, 1952. Copy of Show cause notice dated 01.12.2015 has been annexed herewith as Annexure A-6.
8.       That thereafter, Senior Town Planner, Punjab Bureau of Investment Promotion(PBIP) vide letter no. 1424 dated 23.06.2016 (AnnexureA-7) intimated to Chief Administrator, GMADA that M/s Emerging Valley Pvt. Ltd has applied in the office of Punjab Bureau of Investment Promotion (PBIP) for getting License. Through this letter Senior Town Planner has sought some legal opinion on the question as to whether the unauthorised construction made by the applicant may be considered under the compounding policy or in   the process of issuing of License. In response to this query, Legal Cell GMADA opined that as the applicant is willing to develop his project as per law and if the applicant fulfils all the prescribed legal formalities, he may be allowed to join the main stream by issuing the License. This opinion was duly intimated to Senior Town Planner, Punjab Bureau of Investment Promotion(PBIP) vide letter no. 5530 dated 15.11.2016 (Annexure A-8), further through this letter it was also intimated that the applicant, by making application at the office of Punjab Bureau of Investment Promotion(PBIP), was just trying to buy time for making unauthorised construction because if he had bona fide intention for taking license he would have deposited all the due charges which were requisite under the conditions of LOI issued earlier on 06.05.2015.
9.       That thereafter, when the Promoter Company did not stop the unauthorised construction, then Estate Officer, GMADA vide letter no. 5908 dated 30.11.2016 (Annexure A-9) directed the Subdivisional Engineer to immediately seal the project of the Promoter Company and further directed to ensure that in future, unless the Promoter Company gets the License, no construction takes place and if the Promoter company makes further construction without license and this matter is not reported to the office of GMADA, then Sub-divisional Engineer shall be held liable personally.
10.       That thereafter, vide Notification no. 12/04/165-Hg2/891764/1 dated 15.12.2016, the Govt. of Punjab, Department of Housing and Urban Development, notified the regularization policy for the purpose of regularization of unauthorised colonies. The Promoter Company, for getting its unauthorised colony regularised, applied to the Senior Town Planner, Punjab Bureau of Investment Promotion (PBIP) on 16.12.2016 (Annexure A-10) for transferring its case to the office of GMADA. However, this policy was not applicable in this case because this colony falls within Periphery Controlled area.
11.       That thereafter, in 2017, the people who had purchased  plots/property, from the Promoter Company, filed complaints in consumer forums against the Promoter Company. Firstly, because of this litigation and investment made by the innocent people' and secondly it was seeming that the Promoter Company may get the due License of colony because it has been making representations in this regard in the office of GMADA (Annexure A-11) colly. Due to these reasons, at that time GMADA hold the process of demolition and only kept the project sealed for stopping further unauthorised construction at the site.
12.       That   thereafter,   vide   letter no.     5683  dated 22.08.2019 (Annexure  A-12),  Estate Officer GMADA wrote to the SSP, SAS Nagar to provide information about the registration of FIR against the Promoter Company. Finally, taking action on the earlier complaints and on this letter, FIR has been registered on 21.08.2019 at Police Station, Sohana, Distt. SAS Nagar, under section 36(1) of Punjab Apartment and Property Regulation Act, 1995, against Sh. Gurpreet Singh and Sh. Kamaljit Singh, Directors of the Promoter Company M/s Emerging Valley Pvt. Ltd. A copy of FIR has been annexed herewith as (Annexure A-13) co11y.
13.       That thereafter, when the Promoter Company did not get the license of colony, the Competent Authority-cum- Additional Chief Administrator, GMADA vide order no. 1324 dated 17.07.2020 directed to Sh. Gurpreet Singh and Sh. Kamaljit Singh, the Directors of the Promoter Company to demolish the unauthorised construction within the period of thirty days from the date of issue of demolition orders. But the Directors of the Promoter Company did not take any action in compliance of demolition order. Thereafter, on 17.09.2020 and 18.09.2020 this unauthorised construction has been demolished by GMADA and in this regard in EA/446/2017 (Kuldeep Singh Negi Vs M/s Emerging  Housing Corporation Pvt. Ltd.) due compliance report has been filed on  07.10.2020. Therefore, it is respectfully submitted that the office of GMADA, from the very initial stage of development of unauthorised colony, has been taking action, the Promoter Company has been making construction inspite of giving notices and sealing of project Though they had applied for CLU, LOI, regularization of colony under the Policy notified by the Govt. Of Punjab, but they were not able to get any approval from the Competent Authority. Therefore ' GMADA office has written to SSP, SAS Nagar vide letter 1425  dated 17.07.2012, vide letter no. 1115 dated 23.04.2014 and letter no. 5683 dated 22.08.2019. There is no laxity in efforts from  GMADA office against the Promoter Company.

Therefore, it is respectfully prayed that in view of the facts and circumstances narrated above this Compliance Report may_ kindly be allowed to be taken on-record and proceedings against GMADA may be dropped, in the interest of justice.

                    Place: S.A.S Nagar                              Addition Chief Administrator GMADA

                              Dated:27.11.2020”

It is settled law that before launching the project and selling the units therein, the project proponent is legally bound to obtain all necessary approvals/permissions/clearances from the Competent Authorities. Whereas, in the present case, as is evident from the afore-extracted information culled out from the enquiry report submitted by the GMADA, it has been proved that the project launched by the opposite parties was farce. Not even licence for launching the project in question has been obtained by the opposite parties, what to speak of obtaining remaining approvals/permissions/clearances from the Competent Authorities. The office of GMADA, from the very initial stage of development of unauthorized project in question, initiated various legal actions with a view to stop the construction and development there but the company did not stop in doing so. Though, the company had applied for CLU, LOI for regularization of the project in question under the Policy notified by the Govt. of Punjab, but they were not able to get any approval from the Competent Authority in that regard. Written complaints by the GMADA office were also given to SSP, SAS Nagar vide letter 1425  dated 17.07.2012, vide letter no. 1115 dated 23.04.2014 and letter no. 5683 dated 22.08.2019, yet, the company did not stop and kept on booking the units/plots in the unauthorized project and usurped substantial amount from the buyers including the complainant. Collecting money from the perspective buyers and selling the project, without obtaining the required permissions and sanctions is an unfair trade practice on the part of the project proponent. It was so said by the Hon’ble National Commission, in a case titled as M/s Ittina Properties Pvt. Ltd. & 3 Ors. Vs. Vidya Raghupathi & Anr., First Appeal No. 1787 of 2016, decided on 31 May 2018. Relevant part of the said order reads as under:-

“…………….This Commission in Brig. (Retd.) Kamal Sood Vs. M/s. DLF Universal Ltd., (2007) SCC Online NCDRC 28, has observed that it is unfair trade practice on the part of the Builder to collect money from the perspective buyers without obtaining the required permission and that it is duty of the Builder to first obtain the requisite permissions and sanctions and only thereafter collect the consideration money from the purchasers.

It is an admitted fact that the sale deeds were executed in the year 2006 and by 2009 the completion certificate was not issued. The Occupancy Certificate was issued only on 25.09.2017 during the pendency of these Appeals before this Commission. Allotting Plots or Apartments before procuring the relevant sanctions and approvals is per se deficiency…………”

 

In this view of the matter, plea taken  by Counsel for the opposite parties that the company was in legal position to deliver possession in June 2017 or that the complainant failed to take over possession of the plot in question, being devoid merit stands rejected……”

 

 

                    Since, the present complaint also relates to the same project i.e. Emerging Valley Private Limited, Kharar Landran Road, wherein the complainant has purchased the flat in question and further, when it is already proved that even licence for launching the project in question has not been obtained by the opposite parties, what to speak of obtaining remaining approvals/permissions/clearances from the Competent Authorities and also in view of the information culled out from the Enquiry Report referred to and  discussed in Gurdev Kaur case (supra)  having been issued by the GMADA, to the effect that from the very initial stage of development of unauthorized project in question, initiated various legal actions  with a view to stop the construction and development there but  the company did not stop in doing so; that though, the company had applied for CLU, LOI for regularization of the project in question under the Policy notified by the Govt. of Punjab, but they were not able to get any approval from the Competent Authority in that regard; that written complaints by the GMADA office were also given to SSP, SAS Nagar vide letter 1425  dated 17.07.2012, vide letter no. 1115 dated 23.04.2014 and letter no. 5683 dated 22.08.2019, yet, the company did not stop and kept on booking the units/flats/plots in the unauthorized project and usurped substantial amount from the buyers including the complainants; we are of the considered view that the complainant was right in filing this complaint, seeking refund of amount paid alongwith interest etc.

16.           Now coming to the objection raised to the effect that the complainant was defaulter in making payment of remaining amount towards price of the said flat, it may be stated here that not even a single document has been placed on record by the opposite parties, wherefrom, it could reveal that there was any default on the part of the complainant in making payment towards the said flat. Furthermore, in view of the findings given in preceding paras, it is evident that even the respective amount, has been received by the company with animus of cheating and fraud.
17. The facts of both the cases transpire that the opposite parties made false representations, which were materially incorrect and were made in such a way that the complainants were entitled to rely upon it and may act in reliance on it. The complainants are thereby involved in a disadvantageous contract (allotment letters in these cases) with the opposite parties and suffered financial loss, mental agony and physical harassment. Representations/ statements made at that time were believed to be true. All the facts established that from the very inception there was intent of the opposite parties to induce the buyers to enter into a contract and also intent to deceive in the matter. The project in question is farce. As such, objection taken in this regard also stands rejected.
18.           In view of above, it is held that the opposite parties, by launching and selling the project, in question, without obtaining necessary licence/permissions, were deficient in rendering service and also adopted unfair trade practice. Money was usurped from the complainant, by duping him, on false assurances that possession of the flat in a developed project will be delivered to him, whereas, it was not so done. At the same time, it is also held that plea taken by the opposite parties to the effect that delay took place in offering possession because there was delay on the part of the Govt. Departments to sanction approvals/permissions; increase in price of building material etc. does not carry out any weight for the reasons recorded hereinafter.
19.           First coming to delay in approvals on the part of the Govt. Departments, it may be stated here that not even a single letter has been placed on record by the opposite parties showing that they ever reported the Govt. Authorities concerned that there is a delay on their part in granting sanctions/approvals in respect of the project in question on account of business rivalries or red-tapism or that any such letter, by which they have given notice to the said Authorities that in case the needful is not done in a prescribed time, the Company shall move to the appropriate platform of law, in the matter.
20.           Now coming to the plea regarding increase in prices of construction material, it may be stated here that if the opposite parties did not develop the project in a time bound manner, because of their own fault in not taking permissions/approvals from the govt. concerned, and now at this stage, after a long period, they cannot wriggle out of the situation by taking such a bald plea.
21.           We are of the considered opinion that we cannot make the complainants to wait for an indefinite period, in the matter. It is well settled law that non-delivery of possession of units/flats/plots/villas in a developed project by the promised date or if there is no agreement, within a reasonable period say two to three years from the date of booking (in the instant case three years from the date of allotment letter), is a material violation on the part of a builder and in those circumstances, the allottee is well within his/her right to seek refund of the amount paid. It was also so said by the Hon’ble National Commission in Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No.1814 of 2017 decided on 05.07.2018. The above view taken is further supported by the principle of law laid down by the Hon’ble Supreme Court of India in the case titled as Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, Civil Appeal No.12238 of 2018, decided on 02.04.2019 and also  in Fortune Infrastructure Versus Trevor D’ Lima & Ors. (2018) 5 SCC 442. In the present case also, since there has been an inordinate delay in the matter, as such, we are of the considered opinion that if we order refund of the amount paid alongwith interest @12% p.a. from the respective dates of deposits, that will meet the ends of justice.

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22.    Consumer Complaint No.445 of 2018 titled ‘Nacchattar Kaur Vs. Emerging India Bathinda Private Limited & Ors.’ has been filed by the complainant seeking refund of Rs.48 Lakhs paid against a residential Villa plot alongwith interest @18% p.a.; compensation of Rs.50,000/- for deficiency in service; Rs.5 Lakhs for mental and physical agony and Rs.50,000/- towards legal costs. Similarly, in this complaint also, the complainant (Nacchattar Kaur) booked a Residential Villa on 10.07.2013 in the project of the opposite parties i.e. “Greater Bathinda”  in Emerging India Bathinda Pvt. Ltd., located at Bhucho Kalan, Bathinda and paid an amount of Rs.48 Lakhs up-till 02.12.2016, which amount has been disputed by opposite parties No.1 & 2. However, bare perusal of Payment Confirmation Letter dated 28.10.2018 clearly established that Rs.48 Lakhs was received by the parties and their denial is only to usurp the whole amount paid by the complainant. In the instant case, as per the complainant, possession of the said villa was to be handed over till November 2017 but the opposite parties, despite various requests made by the complainant to execute the Buyers Agreement but to no avail. Record transpires that though the opposite parties executed Sale deed on 07.06.2017, Annexure C-3 but it is proved on record vide letter dated 08.03.2018, Annexure C-5, the alleged offer of possession issued by the opposite parties, that possession was still not ready and the opposite parties further stated therein that “….due to delay in approvals from PUDA and delay in Project, now the possession of your GB-Villa No.21 will be given in July 2018”. This clearly proved on record that the opposite parties are still not in position to handover possession of the said Villa due to lack of basic amenities, necessary approvals and permissions from the competent authorities. Further non-execution of Buyer’s Agreement despite receiving 100% of the sale consideration further amounted to violation of PAPRA, 1995. As regards the identical and very common plea of Opposite parties No.1 & 2 of delay in approvals on the part of the Govt. Departments is concerned, we may again reiterate here that not even a single letter has been placed on record by the opposite parties showing that they ever reported to the Govt. Authorities concerned that there is a delay on their part in granting sanctions/approvals in respect of the project in question on account of business rivalries or red-tapism or that any such letter, by which they have given notice to the said Authorities that in case the needful is not done in a prescribed time, the Company shall move to the appropriate platform of law, in the matter. Similarly, as regards the plea of increase in prices of construction material, it may be stated here that if the opposite parties did not develop the project in a time bound manner, because of their own fault in not taking permissions/approvals from the govt. concerned, and now at this stage, after a long period of more than 8 years, they cannot wriggle out of the situation by taking such a bald plea. In the present case also, since there has been an inordinate delay in handing over the possession of the villa, in question and also by not refunding the amount paid by the complainant, we are of the considered opinion that if we order refund of the amount paid alongwith interest @12% p.a. from the respective dates of deposits, that will meet the ends of justice.

23.               Apart from taking identical objections as raised in CC/160/2019,  opposite party No.4 (Harmanpreet Gill) and opposite party No.4 (Lovedeep Singh), in their respective replies, have taken a specific objections that the complaint against them is not maintainable as opposite party No.4 is the Promoter in the Company and opposite party No.5 was simply an employee in the Company and they both had resigned from the Company even much prior to the filing of the complaint. It may be stated here that perusal of Sale Deed dated 07.06.2017 placed on record transpires that the same was signed by Sh. Lovedeep Singh (opposite party No.5) on behalf of the Company – Emerging India Bathinda Pvt. Ltd., may be in the capacity of authorised person or the Director. Not only this, perusal of record further transpires that he also issued receipt dated 09.07.2013 for Rs.1 Lakh, receipt dated 25.10.2013 for Rs.5 Lakhs, also received another amount of Rs.5 Lakhs vide cheque dated 14.06.2014. Thus, opposite party No.5 cannot absolve his liability by simply saying that since he resigned much prior to the filing of the complaint. Similarly, opposite party No.4 (Harmanpreet Gill), being the promoter of the project of the Company at the relevant time, also played a very vital role so far as the sale of Villa, in question, to the complainant was concerned. As such, the objections raised by opposite party No.4 and opposite party No.5 stand rejected.

24.               For the reasons recorded above, these complaints are partly accepted with costs, in the following manner:-

 

In Consumer Complaint No.160 of 2019 titled ‘Parminder Kaur Vs. Emerging Valley Private Limited & Ors.’

1. To refund the amount of Rs.15,56,250/- to the complainant, alongwith interest @12% p.a., without deducting any TDS, from the respective dates of deposit onwards, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount of Rs.15,56,250/- shall carry 3% penal interest i.e. 15% p.a. (12% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization.
2. To pay compensation for causing mental agony and physical harassment; deficiency in providing service and adoption of unfair trade practice and also cost of litigation, in lumpsum, to the tune of Rs.50,000/- to the complainant within a period of 30 days from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.50,000/-, shall carry interest @9% p.a. from the date of passing of this order, till realization.

 

In Consumer Complaint No.445 of 2018 titled ‘Nacchattar Kaur Vs. Emerging India Bathinda Private Limited & Ors.’

1. To refund the amount of Rs.48,00,000/- to the complainant, alongwith interest @12% p.a., without deducting any TDS, from the respective dates of deposit onwards, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount of Rs.48,00,000/- shall carry 3% penal interest i.e. 15% p.a. (12% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization.
2. To pay compensation for causing mental agony and physical harassment; deficiency in providing service and adoption of unfair trade practice and also cost of litigation, in lumpsum, to the tune of Rs.50,000/- to the complainant within a period of 30 days from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.50,000/-, shall carry interest @9% p.a. from the date of passing of this order, till realization.

25.               However, it is made clear that in case the complainants, in any of the complaint above, have availed housing loan from any Bank(s)/financial institution(s) for making payment towards price of their respective plots, it shall have the first charge of the amount payable, to the extent, the same is due to be paid by the complainants against their respective plots.

26.               Certified Copies of this order be sent to the parties, free of charge and one copy thereof be placed in the connected case file.

27.               The files be consigned to Record Room, after completion.

Pronounced.

09.04.2021

 

 [RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

(PADMA PANDEY)

         MEMBER

 

 

 

(RAJESH K. ARYA)

 MEMBER

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