Chandigarh

StateCommission

CC/5/2023

SATPAL SINGH - Complainant(s)

Versus

M/S EMERGING VALLEY PVT. LTD., THROUGH ITS MANAGING DIRECTOR SH. GURPREET SINGH SIDHU, - Opp.Party(s)

RAJESH VERMA

29 May 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	5 of 2023
Date of Institution	:	19.01.2023
Date of Decision	:	29.05.2023

 

Satpal Singh S/o Late Sh. Gyan Singh R/o House No.2145, Sector 40C, Chandigarh.

……Complainant.

V e r s u s

 

M/s Emerging Valley Private Limited, through its Managing Director Sh. Gurpreet Singh Sidhu, Emerging Heights III, Sector 115, Kharar Landran Road, Mohali, Punjab 140501, Earlier Address: SCO No.46-47, 1^st Floor, Sector 9-D, Chandigarh – 160009.

…..Opposite party.

 

BEFORE:    JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                   MR.RAJESH K. ARYA, MEMBER.

 

Argued by :  Sh. Rajesh Verma, Advocate for the complainant.

Ms. Bijuli Sinha, Advocate proxy for Sh. J. S. Rattu, Advocate for the opposite party.

 

 

PER  RAJESH  K. ARYA, MEMBER

                    This complaint has been filed by the complainant, seeking possession  of the plots alongwith adequate interest on the amount paid till the time possession is handed over or in alternative, refund the total amount(s) paid i.e. Rs.74,40,000/- alongwith adequate interest; compensation of Rs.5 Lakhs on account of mental agony and harassment and Rs.1 Lakh towards litigation, as he is aggrieved of deficiency in providing service, negligence and adoption of unfair trade practice on the part of the opposite party, because there has been an inordinate delay with regard to delivery of possession of the plots booked by him, in the project of the opposite party, for dearth of construction; development activities and also necessary permissions/sanctions/approvals have not been obtained from the competent Authorities for launching the project, wherein the plots in dispute are located.

                   However, during the course of arguments, when a specific query was raised to the Counsel for the complainant, whether the complainant wants possession of the plots or refund of the amount paid, he stick to the alternative prayer of refund and submitted that the amount(s) of Rs.74,40,000/- deposited against the three plots, be ordered to be refunded alongwith adequate interest, besides compensation and litigation expenses, as prayed for. 

                   Details with regard to the project in dispute; plots booked; payments made by the complainant etc. are given below:-

 

Project name	Emerging Valley, Landran Banur Road, Mohali, Punjab
Plot No.	B/217	B/218	E/033
Date of Booking	2012	2012	2012
Area of the plot	200 sq. yards	200 sq. yards	500 sq. yards
Total cost as per Payment Plans.	Rs.28 Lakhs (Annexure C-2)	Rs.26 Lakhs (Annexure C-3)	Rs.70 Lakhs (Annexure C-4)
Amount paid	Rs.16.80 Lakhs	Rs.15.60 Lakhs	Rs.42 Lakhs
Agreement, if any, executed.	Not executed
Possession offered or not	Not offered
Delay in years	More than 11 years from the date of booking of plot
Allottee	Original allottee

         

2.           The claim of the complainant has been contested by the opposite party, on numerous similar grounds, inter alia, that the complainant has concealed material facts from this Commission; that he did not fall within the definition of “consumer” as the plots in question were purchased for commercial purposes; that the complaint filed is barred by time; that the complainant never approached for possession as the plots were ready and the complainant was asked again and again to take possession but he denied for the reasons best known to him; that the complainant did not pay for the other basic amenities and he is raising false claim; that the complainant was made aware that the project was attached by the orders of this Commission, which was not foreseen and he could take possession but the registry would be got done only after attachment is removed.  
3.           Rejoinder was filed by the complainant wherein he reiterated all the averments contained in the complaint and controverted those contained in written reply filed by the opposite party.
4.           The parties led evidence in support of their cases.
5.           We have heard the contesting parties and have gone through the entire record of the case and written arguments very carefully.
6.           First of all, coming to the objection raised with regard to jurisdiction of this Commission in the face of existence of Arbitration clause in the allotment letter is concerned, it may be stated here that 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 party, otherwise also, in this regard, stands rejected.
7.           Now coming to the objection taken to the effect that the complainant did not fall within the definition of ‘consumer’ as he has purchased three plots for investment purposes, 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 party to establish that the complainant  has purchased the plots 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 the opposite party failed to discharge its onus, hence we hold that the complainant is a consumer as defined under the Act. Mere fact that the complainant is living in another house is not a ground to shove him out of purview of consumer. Objection taken in this regard as such stands rejected.
8.           There is no dispute with regard to purchase of plots by the complainant, as per the details mentioned in the chart above. There is also no dispute with regard to the fact that despite substantial amount equal to about 60% of the total sale consideration stood received by the opposite party from the complainant, yet, agreements have not been executed between the parties and in the absence of agreements, possession thereof has also not been offered and delivered within a reasonable period from the date of booking. 
9.           In the complaint, the complainant, through their Counsel, have submitted that the opposite party, despite umpteen requests, failed to provide agreements for signatures of the complainant, within a reasonable period after booking of the plots and also that the project of the opposite party 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 party, through its Counsel, has stated that from the very beginning, the complainant was requested number of times to come forward to take over possession of plots but he failed to do so.
10.           It may be stated here that once the opposite party, in the first instance, had already received substantial amount, which was equal to about 60% of the total sale consideration, from the complainant, it was required of it to execute agreements 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 party was 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 agreements, was not only unfair but illegal, which act also contravenes Section 6 (1) of the PAPR Act,  which lays a duty on the opposite party 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 party was legally bound under law to execute the agreements and to get the same registered under the Registration Act 1908, after obtaining 25% of the sale consideration but the said provision has been violated. The opposite party was deficient in providing service and adopted unfair trade practice on this count.

11.           Now the moot question which falls for consideration is, as to whether, the opposite party was competent to launch the project in question and also to sell the units/plots therein or not. In the instant case, the complainant while placing reliance on RTI/document dated 20.06.2017, Annexure C-8, 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). 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 party failed to place on record any evidence to rebut the contentions made by the complainant 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 party.  The said violation amounts to adoption of an unfair trade practice, which is glaring and vivid on the part of the opposite party.

12.           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 complainant in this complaint to the effect that the project has been launched without necessary approvals and licence and that the opposite party is 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……”

 

13.           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 plots in question and the complainant has also proved by way of documentary evidence that even licence for launching the project in question has not been obtained by the opposite party, 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/plots in the unauthorized project and usurped substantial amount from the buyers including the complainant; we are of the considered view that the complainant was right in filing this complaint, seeking refund of amount paid alongwith interest etc. as alternative relief, to which, he confined his claim at the time of arguments.
14.           Now coming to the objection raised by the opposite parties, to the effect that the complaint is time barred, it may be stated here that not even a single document has been placed on record to prove that actual legal physical possession of the plots in question, in a developed project was ever delivered to the complainant and also at the same time, once it has been proved from the afore-extracted information culled out from the enquiry report of GMADA and also the RTI, that the project in question was farce and the opposite party was not even in a position to launch the same, what to speak of offering possession of units/plots therein; and especially in view of candid admission by the opposite party in para no.2 of preliminary objections to the effect that the project is completing and the company is putting its all the efforts to give the possession to those customers, who have paid, as such, there was a continuing cause of action in favour of the complainant to file this complaint, in view of principle of law down in  Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal   Shah  and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC), wherein it was held that when possession of the residential units/plots is not offered, there is a continuing cause of action, in favour of the allottee/buyer. 

                   Under above circumstances, the plea taken by the opposite party, in its written statement to the effect that the complainant was requested number of times, to take possession is nothing but a bald plea taken, just with a view to defeat the genuine claim of the complainant and this act needs to be deprecated.

15.            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 plots, it may be stated here that not even a single document has been placed on record by the opposite party, wherefrom, it could reveal that there was any default on the part of the complainant in making payment towards the said plots. Furthermore, it is evident that even the respective amounts, as mentioned in the chart above, have been received by the company with animus of cheating and fraud. The facts transpire that the opposite party made false representations, which were materially incorrect and were made in such a way that the complainant was entitled to rely upon it and may act in reliance on it. The complainant is thereby involved in a disadvantageous contract with the opposite party 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 party 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.
16.           In view of above, it is held that the opposite party, 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 plots in a developed project will be delivered to them, whereas, it was not so done. Thus, the contention raised by the opposite party that the company is ready to deliver possession of the plots, in the absence of any evidence in that regard, in the shape of occupation and completion certificates and that too in the face of RTI and also the enquiry report submitted by GMADA referred to above, has no significant value in the eyes of law.
17.           If the opposite party did not develop the project in a time bound manner, because of its own fault in not taking permissions/approvals from the govt. concerned, and now at this stage, after a period of more than 11 years, they cannot wriggle out of the situation by taking such a bald plea that the project was attached etc.
18.           As per settled principle of law laid down by the Hon’ble Supreme Court of India that, in the cases, where no agreement has been executed by the builder after booking of the plot/unit, then the reasonable period of two to three years has to be taken into account for completion of the construction and development activities and delivery of possession to the allottees/buyers thereof. Since, in the present case also, no agreement has been executed between the parties, as such, possession of the plots in question should have been delivered to the complainant by the opposite party, within a maximum period of three years from the respective dates of booking thereof, which the opposite party has not done and also it is not feasible even, for the reasons explained above. 
19.           We are of the considered opinion that we cannot make the complainant to wait for an indefinite period, in the matter. It is well settled law that non-delivery of possession of plots/units 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, 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 in view of principle of law laid down by the Hon’ble Supreme Court of India in H.U.D.A. Vs. Neelam Sharma, Civil Appeal no.3417 of 2003 decided on 18.08.2004, wherein it was held that in case of refund of amount, the Interest Act would apply and 12% interest is to be granted from the date of amounts deposited, in the respective complaints, that will meet the ends of justice.
20.           For the reasons recorded above, this complaint is partly accepted with costs. The opposite party is directed as under:-

1. To refund the amounts of Rs.16,80,000/-, Rs.15,60,000/- & Rs.42,00,000/- (totaling Rs.74,40,000/-) 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.74,40,000/- 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.

21.           However, it is made clear that in case the complainant has 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 complainant against the respective plots.
22.           Certified Copies of this order be sent to the parties free of charge.
23.           File be consigned to Record Room after completion.

Pronounced.

29.05.2023

 [RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

(RAJESH K. ARYA)

 MEMBER

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