Chandigarh

StateCommission

CC/300/2018

Jitender Sheokand - Complainant(s)

Versus

M/s Manohar Infrastructure and Constructions Private Limited - Opp.Party(s)

Savinder Singh Gill, Adv.

10 Dec 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	300 of 2018
Date of Institution	:	24.07.2018
Date of Decision	:	10.12.2018

 

1. Jitendar Sheokhand s/o Sh.Zile Singh Sheokhand, r/o H.No.671, Sector 11, Panchkula, Haryana.
2. Puneet Jain s/o Sh.Surender Kumar, r/o H.No.953, Sector 17, Panchkula, Haryana.

……Complainants

V e r s u s

 

1. M/s Manohar Infrastructure & Constructions Pvt. Limited, having its office at SCO 139-141, Sector 17-C, Chandigarh, through its Directors Sh. Tarninder Singh and Sh. Narinderbir Singh.
2. Tarninder Singh, Director of M/s Manohar Infrastructure & Constructions Pvt. Limited, R/o House No.246, Sector 9-C, Chandigarh-160009.
3. Narinderbir Singh, Director of M/s Manohar Infrastructure & Constructions Pvt. Limited, R/o House No.246, Sector 9-C, Chandigarh-160009.             

.... Opposite Parties

Argued by:       Sh.Savinder Singh Gill, Advocate for the   complainants.

                        Sh.I.P. Singh, Advocate for the opposite parties.

 

===================================================

Complaint case No.	:	322 of 2018
Date of Institution	:	21.08.2018
Date of Decision	:	10.12.2018

 

1. Vikas  Mittal s/o Sh.Om Parkash Mittal, aged 35 years, R/o # 2273, Sector 42-C, Chandigarh.
2. Bindu Bala w/o Sh.Bajrang Lal, aged 42 years, R/o #2716, Sector 22-C, Chandigarh.

……Complainants

V e r s u s

 

M/s Manohar Infrastructure & Constructions Pvt. Limited, Manohar Campus, SCO No. 139-141, Sector 17-C, Chandigarh, through its Managing Director/Authorized Signatory.

.... Opposite Party

Argued by:       Sh.Vishal Gupta, Advocate for the    complainants.

                        Sh.I.P. Singh, Advocate for the opposite party.

 

Complaints under Section 17 of the Consumer Protection Act, 1986.

 

BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                 MRS. PADMA PANDEY, MEMBER.

                 MR.RAJESH K. ARYA, MEMBER

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                By this order, we propose to dispose of the aforesaid two consumer complaints, filed by the respective complainants. Arguments in the complaints were heard in common, on 29.11.2018. In both the complaints, referred to above, issues involved, except minor variations, here and there, of law and facts are the same and also the complainants have sought refund of the amount paid towards price of their respective plots. As such, during arguments, it was agreed by the contesting parties, that both the complaints can be disposed of, by passing a consolidated order.

2.         To dictate order, facts are being taken from Consumer Complaint bearing No.300 of 2018 titled as Jitendar Sheokhand and another Vs. M/s Manohar Infrastructure and Constructions Pvt. Limited and ors. The complainants have filed this complaint, seeking refund of amount of Rs.27 lacs, paid by them, to the opposite parties, towards price of the residential plot, measuring 300 square yards, purchased by them, for personal use, in a Mega Housing Project, known as ‘Palm Springs, Mullanpur, Punjab. Total price of the said plot was fixed at Rs.54 lacs. The said project was launched by opposite party no.1, of which, opposite parties no.2 and 3 are the Directors. It is the case of the complainants that despite the fact that substantial amount, referred to above, had been paid to the opposite parties, by 22.08.2013, yet, they failed to issue allotment letter and also send buyer’s agreement for their signatures, in respect of the plot in question. It was stated that, during the period intervening, it came to the knowledge of the complainants that the opposite parties had not obtained necessary approvals/sanctions before launching and selling the project, whereas, on the other hand, they collected money from the buyers. Exemption from the provisions of PAPRA was obtained by the opposite parties, only in the year 2017. It was further stated that neither allotment letter nor buyer’s agreement were issued despite making payment of substantial amount, by the complainants, nor firm date of delivery of possession of the plot, in question, was given and also at the same time, violation had been committed by the opposite parties, by launching and selling the project, in question, without obtaining necessary approvals/sanctions.

                By stating that the aforesaid act and conduct of the opposite parties amounted to deficiency in providing service and also adoption of unfair trade practice, the present complaint has been filed, with a prayer to issued directions to them (opposite parties) to refund the amount paid, with interest, compensation etc.

3.         Upon notice of this complaint, the opposite parties put in appearance through their Counsel Sh.I.P. Singh, Advocate and filed their joint written version, wherein, they took numerous objections like, expression of interest shown by the complainants was for speculative purposes. The plot, in question, was purchased for future gain, as such, the complainants being investors, would not fall within the definition of consumer, as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986 (in short, the Act, 1986). It was pleaded that complicated questions of facts and law are involved in this complaint, as such, the same cannot be entertained by this Commission, proceedings before which are summary in nature. Only Civil Court has jurisdiction to entertain and decide this complaint. Territorial jurisdiction of this Commission was also challenged. It was stated that the project of the opposite parties has been registered under the . Jurisdiction of this Commission was further challenged, by stating that RERA being a special statute took precedence over the Act, 1986. It was also so said by Counsel for the opposite parties, at the time of arguments.
4.         On merits, it was admitted that the plot, in question, was sold to the complainants, in a project of the opposite parties known as “Palm Springs” aforesaid. Payment received against the said plot, to the tune of Rs.27 lacs was also not disputed. To say that there was lot of development in the project, some photographs were placed on record. It was stated that the project was approved on 22.03.2013. Formal agreement was signed with the Government on 14.06.2013. Thereafter, some more land was added to the project, for which completion period was given upto 13.06.2018. It was stated that exemption from the applicability of provisions of the PAPRA already stood granted by the Government concerned, in favour of the opposite parties on 25.01.2017. In view of above, act of the opposite parties in getting money deposited against expression of interest, from the purchasers stood rectified. The exemption granted will relate back to the date, when application was moved for sanction, to launch the project, in the year 2011 i.e. it is retrospective in nature. It was averred that once the State Government has not held that the opposite parties had violated the provisions of PAPRA, as such, this Commission cannot go into the said question. It was stated that as per Section 35 of the PAPRA, jurisdiction of Civil Court is barred to entertain and decide any question relating to matters arising under it (PAPRA). The complainants have waived of their rights to raise any objection regarding permissions/approvals aforesaid, by making payment towards price of the said plot. It was further averred that now the opposite parties are in possession of all the requisite permissions/clearances, in respect of the said project. Irregularities, if any, in accepting the expression of interest to purchase the land; non-execution of Buyer’s Agreement, as per Section 6 of the PAPRA etc. have no adverse effect on the project of the opposite parties. It was averred that after allotment of the plot, the complainants were requested number of times, to come forward for selection of plot; execution of the buyer’s agreement; and pay the remaining amount towards price of the plot, but they failed to do so. They are defaulters in making payment of the remaining amount. Now the complaint seeking refund of the amount paid, is barred by time. It was further stated that claim of the complainants seeking interest @18% p.a. is totally unjustified. Even for fixed deposits, in the banks, rate of interest is very less. It was also stated that huge amount has been invested by the opposite parties for getting necessary clearances and in developing the site in dispute. The opposite parties are trying to complete the project, as early as possible, as the development work is going on, in full swing and provision of basic amenities such as roads, electricity etc. are near completion. It was further stated that the complaint is barred by limitation. However, in the same breath, it was pleaded that, as per Supplementary Agreement dated 16.06.2016, the Govt. concerned has given completion period of the project upto 13.06.2018 (which period already stood expired). Furthermore, on request made by the opposite parties, the Competent Authority has extended completion period of the project, upto 31.07.2019. As such, the said date has to be assumed as the date of delivery of possession of plot to the complainants. At the same time, it was averred that time was not the essence of contract. The project was delayed also on account of red-tapism in the offices of the Govt. Department concerned and also business/political rivalry. The Competent Authorities delayed in granting approvals/sanctions, as far as the present project is concerned. It was stated that delay in delivery of possession of plots occurred also on account of shortage of building material and ban on mining by the Govt., which could be termed as force majeure circumstances. It was also stated that huge amount has been invested by the opposite parties for getting necessary clearances and in developing the site in dispute. It was pleaded that the complainants are open to come forward for execution of buyer’s agreement, after making payment of balance amount towards price of the said plot. Saying that neither there is any deficiency in rendering service nor adoption of unfair trade practice, on the part of the opposite parties, it was prayed that this complaint having no substance deserves dismissal with cost.
5.         In the rejoinder filed, the complainants reiterated all the averments contained in the complaint and repudiated those contained in written version of the opposite parties.
6.         The contesting parties led evidence, in support of their cases.
7.         We have heard the contesting parties and, have gone through the evidence and record of both the cases, carefully. 
8.         The first question that falls for consideration, is, as to whether, this Commission has got territorial jurisdiction to entertain and decide this complaint or not.

                According to Section 17 of the Act, a consumer complaint can be filed, by the complainants, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to them. In the instant case, perusal of almost all the documents placed on record, pertaining to transaction carried out between the parties, reveals that the same have been issued and received from/by Chandigarh Office of the opposite parties i.e. Manohar Infrastructure and Constructions Pvt. Ltd., SCO No.139-141, Sector 17-C, Chandigarh. Even the documents placed on record, which were issued by Controlling Authority of the opposite parties, with regard to approvals qua the project, in question, are also addressed to their Chandigarh Office, meaning thereby that the opposite parties were carrying out their business at the said office for gains. In view of above, it can safely be said that this Commission has got territorial Jurisdiction to entertain and decide this complaint.  Objection taken by the opposite parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

9.         There is no dispute that a plot was sold to the complainants in the project aforesaid, against sale consideration of Rs.54 lacs. It is also not disputed, that an amount of Rs.27 lacs, has been received by the opposite parties from the complainants, towards price of the said plot, as far as back by August 2013. The payment made was 50% of the total sale consideration, for a plot measuring 300 square yards, in the project named ‘Palm Springs’, Mullanpur, Punjab. Thereafter, it is an admitted fact that instead of allotment of plot and also execution of buyer’s agreement, the opposite parties started making demand of further payments, which was not paid by the complainants, on account of the reasons, mentioned above. There is nothing on record to show that by the time when the project was launched and sold, before grant of exemption from the provisions of applicability of PAPRA on 25.01.2017, any permission was available with the opposite parties. This fact has been honestly admitted by the opposite parties, in para no.8 of their written reply.

                It is specifically brought to our notice, at the time of arguments, by Counsel for the complainants that as per Guidelines (Annexure C-6) to launch project in the mega housing project, (Palm Springs situated in mega housing project), it is not open to the project proponent like the opposite parties, to sell the project to general public without getting proper sanctions/approvals from the Competent Authorities. Condition no.4 (at page 47 of the paper book) of the said Guidelines reads thus:-

“4 Conditions for grant of concessions:-

1.     ……….
2.     The project shall not be advertised/launched and no money will be collected from general public for allotment of land/plot/flat/any space till such time the layout/zoning plans are cleared from the competent authority and exemption u/s 44 of PAPRA is issued by the Government.”

                It is mandated that the project can only be launched when layout/zoning plans are cleared from the Competent Authorities and exemption is granted from operation of the provisions of PAPRA, by the Government concerned. It was also so said in the ‘Letter of Intent’ for the Grant of Special Package of Incentives under Industrial Policy 2009, issued on 03.05.2013 (at pages 55 to 61 of the paper book)) issued in favour of the opposite parties, by the Chief Administrator, PUDA, SAS Nagar, Mohali.

                At the time of arguments, it has also come to our notice that when the project was advertised and sold in the year 2011, the opposite parties were not even registered with the GMADA, SAS Nagar, as a qualified project proponent, to obtain license under Section 5 of the PAPRA. Certificate of Registration was granted by the GMADA only on 27.06.2014, permitting the opposite parties to setup a colony subject to their obtaining requisite licenses, as mandated under the provisions of PAPRA.

                In view of above, contention of Counsel for the complainants that the project, in question, was sold without any permission(s)/sanction(s) from the Competent Authorities and also violating the provisions of Sections 4 (1) (a) and (b) and 6 of the PAPRA appears to be correct. The said provisions reads thus:-

 

“4. Issuing of advertisement or prospectus:-

(1) No promoter shall issue an advertisement or prospectus, offering for sale any apartment or plot, or inviting persons who intend to take such apartments or plots to make advances or deposits, unless,-

(a) the promoter holds a certificate of registration under sub-section (2) of section 21 and it is in force and has not been suspended or revoked, and its number is mentioned in the advertisement or prospectus; and

(b) a copy of the advertisement or prospectus is filed in the office of the competent authority before its issue or publication………………”.

 

“6.(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 for together with prescribed documents and shall be registered under the Registration Act, 1908 (Central Act no. 16 of 1908);”

 

10.         A question, as to whether, necessary permission/sanctions had been obtained by the opposite parties before launching this project, came up for consideration before this Commission, recently in Veena Ghai and anr. Vs. M/s Manohar Infrastructure & Constructions Pvt. Limited and anr., consumer complaint no. 659 of 2017 decided on 28.06.2018. This Commission held as under:-

“The fact that the project was launched without obtaining necessary permissions/sanctions having been obtained from the Competent Authorities, is further fortified from a document of the opposite parties, placed on record as Annexure O-12 (at page 89 of the file), showing in a tabular format, as to by which dates, approvals, NOCs were granted to them, by the Competent Authorities. Relevant part of the said table is reproduced hereunder:- 

 

Sr.No.	Approval	Dated
	Approval of project	25.04.2013
	NOC from Forest Department	14.07.2014
	Approval of layout plan	06.10.2015
	Approval of zoning plan	24.11.2015
	Permission for solid water, sewerage and storm water disposal	06.07.2015
	Approval of detailed project/services plans of roads, water supply, sewerage, storm water drainage, treated water supply and electrification	27.11.2015
	Grant of  Consent to Establish (NOC) Water and Air	1.12.2015
	NOC from Pollution Angle	15.02.2016
	Environment Clearance	03.06.2016
	NOC for electricity connection	15.03.2017
	Extension of Grant of Consent (NOC) Water and Air	17.04.2017
	Permission for Solid Waste Disposal and Storm Water Disposal	19.05.2017

 

Perusal of the aforextracted table clearly reveals that not even a single permission was available with the opposite parties, when the project, in question, was launched and sold to the customers, including the complainants, in March 2011. As such, the project, in question, was launched in complete derogation of the above said provisions.

                Collecting money from the perspective buyers without obtaining the required permissions and sanctions is an unfair trade practice on the part of the project proponent. It is well settled law 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 was also so said by the 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 thus:-

“…………….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…………”

 

However, in the present case, the opposite parties did not place on record all the documents, referred to, in the table aforesaid. As such, an adverse inference can easily be drawn that had all the said documents been placed on record, the same would have gone against the interest of the opposite parties, as it would have been evident therefrom that when huge amount of Rs.16,20,000/- was received from the complainants on 22.03.2011, they were not even owners of the land, whereupon the project was to be developed. This act amounts to grave unfair trade practice on the part of the opposite parties.

11.         Furthermore, amount accepted at the time of booking was more than 25% i.e. Rs.16,20,000/- against Rs.54 lacs. Thereafter also, more amount was received by the opposite parties and by 22.08.2013, total amount of Rs.27 lacs stood paid by the complainants. No Agreement was got signed, as is mandatory under the above said provisions. As such, there is a complete violation of the provisions of the PAPRA. It is an admitted case of the opposite parties that permission seeking exemption from the applicability of provisions of PAPRA has finally been granted only in the year 2017, which cannot be said to have any retrospective effect but on the other hand, will have prospective effect only. As such, it could very well be said that by selling the units without authority, the opposite parties violated the provisions of PAPRA, and the said violation amounts to adoption of an unfair trade practice, which is glaring and vivid on their part.

        Similar controversy came up for consideration before this Commission, qua this project owned by the opposite parties, in the case of Shaminder Walia and another Vs. M/s Manohar Infrastructure and Constructions Pvt. Limited, Consumer Complaint no.918 of 2016, decided on 08.05.2017 (alongwith six connected cases). Noting similar contentions, this Commission observed as under:-

“To get a plot allotted in the project named as ‘Palm Garden’, first payment was received by the opposite party on 11.01.2012. It is virtually admitted on record that when the project was sold, not even a single permission was available with the opposite party. It is admitted in the written version that part of the project of the opposite party was approved much later, in the year March 2013. Formal Agreement was signed with the Govt. of Punjab on 14.06.2013. Thereafter, additional area was added and supplementary agreement was signed on 16.06.2016. Notification granting exemption from the applicability of the provisions of PAPRA was issued only on 25.01.2017. Perusal of the said notification makes it very clear that exemption given was conditional, as has been referred in para no.5 of the said notification. Besides other conditions, condition no.5 (iii to vii), reads thus:-

“(iii). The promoter shall deposit the entire amount in respect of the contribution to the Punjab Urban Development Fund, created under section 32 of the Punjab Apartment and Property Regulations Act, 1995 (Act No.14 of 1995), within a period of 30 days of the sanctioning of their layout plan.

(iv). The promoter shall acquire the ownership of project land in its name including land under agreement to develop and land under agreement to sell. The plots falling under land proposed to be acquired if any through Govt. acquisition, plot through which revenue rasta or khali passes shall not be developed and sold till these pockets are acquired and ownership is transferred in the name of the Promoter.

(v)      The plots/land to which the access is proposed through the land to be acquired if any by the Government shall not be developed and sold till that land under the access is acquired and transferred in the name of the promoter and access is provided.

(vi)     The promoter shall be responsible for obtaining the final NOC from Punjab Pollution Control Board.

(vii)    Before starting the development of the proposed project promoter shall obtain environmental clearance from the Ministry of Environment and Forest Government of India as required under EIA notification dated 14.9.2006 as well as consent to establish (NOC) from the Punjab Pollution Control Board.”  

 

It is specifically mentioned that before starting development of the proposed project, promoter was to obtain environmental clearance from the Ministry of Environment and Forest Government of India, in terms of EIA notification dated 14.09.2006. There is nothing on record that such clearance was obtained by the opposite party. Further, it was also mentioned that requisite amount be paid towards Punjab Urban Development fund, within a period of 30 days, from the date of sanctioning of layout plans. No evidence has been placed on record, showing payment of the aforesaid amount. Furthermore, it is mandated that the promoter shall also be responsible for getting ‘No Objection Certificate’ from Punjab Pollution Control Board. No document exists on record, showing that such approval was obtained by the opposite party.”.

               

12.         At the time of arguments, Sh.I.P. Singh, Advocate, argued with vehemence that issuance of notification dated 25.01.2017 granting exemption from the applicability of many provisions of PAPRA qua mega project, in question, will relate back to 12.09.2011, the date, on which application was filed to get licence, under the mega housing policy. In a way, it was said that when the above notification was issued, it ratifies all the mistakes/irregularities committed by the opposite parties, qua sale of plots in the year 2011, without obtaining necessary sanctions and approvals from the Competent Authorities. To so say, reliance has been placed upon the ratio of judgment in the case of M/s Murudeshwara Ceramics Ltd. Vs. State of Karnataka, 2002 (1) SCC Page 116. 

                On perusal of the entire record and documents, we are not going to accept the said arguments. In the case of Shaminder Walia (supra), similar contention was raised and the same was rejected by this Commission, by observing as under:-

“It was contended by Counsel for the opposite party that after issuance of notification dated 25.01.2017 exempting applicability of many provisions of PAPRA qua mega project, the irregularities adopted by it qua sale of plots in the year 2012, etc. stands rectified. In para no.16 of its reply, it was specifically stated by the opposite party that irregularity in accepting expression of interest for sale of the plot in the said project, will have no adverse effect.

                We are not going to agree with the contention raised. There is nothing on record that the said notification is retrospective in nature. As stated above, when the project was sold, not even a single permission was available with the opposite party. The sale was made in contravention of the provisions of PAPRA and upon issuance of notification in the month of January 2017, violation committed or admitted irregularities made, cannot be rectified. Similar question qua this very project, came up for consideration before this Commission in Sukhvinder Singh Hayer Vs. M/s Manohar Infrastructure and Constructions Pvt. Limited, Complaint case no.775 of 2016 decided on 23.03.2017 (02 connected cases), wherein it was observed as under:-

 “It is specifically mentioned that before starting development of the proposed project, promoter was to obtain environmental clearance from the Ministry of Environment and Forest Government of India, in terms of EIA notification dated 14.09.2006. There is nothing on record that such clearance was obtained by the opposite party. Further, it was also mentioned that requisite amount be paid towards Punjab Urban Development fund, within a period of 30 days, from the date of sanctioning of layout plans. No evidence has been placed on record, showing payment of the aforesaid amount. Furthermore, it is mandated that the promoter shall also be responsible for getting No Objection Certificate from Punjab Pollution Control Board. No document exists on record, showing that such approval was obtained by the opposite party. Contention of Counsel for the opposite party that notification dated 25.01.2017 exempting applicability of many provisions of PAPRA qua mega project, the sale of plots in the year 2011 etc. stands rectified. We are not going to agree with the contention raised. There is nothing on record that the said notification is retrospective in nature. When project was sold, not even a single permission was available with the opposite party. The sale was made in contravention of the provisions of PAPRA and upon issuance of notification in the month of January 2017, violation committed cannot be rectified. Similar question qua this very project, came up for consideration before this Commission in Monika Vs. M/s Manohar Infrastructure and Construction Pvt. Limited, Complaint case no.251 of 2016 decided on 27.09.2016, wherein it was observed as under:-

“The pleadings of the parties indicate that when project was marketed and sold, not even a single permission was available with the project proponent/opposite party. There is a complete violation of the provisions of the PAPRA. It is an admitted case of the opposite party that application seeking exemption from the applicability of provisions of PAPRA is still pending under consideration, with the Authorities concerned. Unless exemption is granted, its violation would amount to adoption of an unfair trade practice, which is glaring and vivid on the part of the opposite party, in this complaint.

Qua a similar project launched by the opposite party in the same area, in Appeal No.248 of 2016, decided on 31.08.2016, titled as M/s Manohar Infrastructure and Constructions Pvt. Limited Vs. Sh.Tilak Raj Bakshi, under similar circumstances, this Commission, while dismissing the said appeal, has observed as under:-

“The documents placed on record clearly show that the project was launched without getting any permission from the Competent Authorities. Detailed brochure was issued showing facilities to be made available in the project launched and its layout plan. It is also on record that when it came to the notice of GMADA that the plots/flats are being sold unauthorizedly by the appellant, it gave a notice in the newspaper ‘Hindustan Times’ dated 18.08.2012, which reads thus:-

                “PUBLIC NOTICE

This is for the information of one and all that it has come to the notice of the Competent Authority that one company named as M/s Manohar Singh & Co. is allegedly booking/selling plots in the Mullanpur- Siswan region near Chandigarh border in the State of Punjab. This is being intimated that the above said project is not approved by the State Government. The Competent Authority is initiating legal proceedings in this regard.

If anybody has booked or purchased any plot in the locality mentioned above he/she is advised to contact the undersigned along with documentary proof for further legal action against the said promoter. Further, while buying any plot in any locality falling under the jurisdiction of GMADA, all are advised to visit the website www.gmada.gov.in to verify if the colony/project is approved or not.

Chief Administrator

GREATER MOHALI AREA DEVELOPMENT AUTHORITY, PUDA Bhawan, Sector 62, SAS Nagar”.

It is specifically stated in the notice dated 18.08.2012 that the appellant was allegedly booking/selling the plots in Mullanpur, near Chandigarh Border, in the State of Punjab, unauthorizedly. It was further stated that the project is not approved by the Competent Authority and it (Competent Authority) is initiating legal proceedings against the project proponent for its activity. Above said notice makes it very clear that when the plot was sold on 13.04.2012, the project was not approved by the Competent Authorities. It is also so reflected in the details given by the appellant with this appeal, which is available at page 33 of the paper book. Reading of above said document, makes it very clear that the project was approved by the Government on 25.04.2013; Letter of Intent (LOI) was issued on 03.05.2013; Change of Land Use (CLU) certificate was granted on 31.03.2014; project was registered on 21.06.2014; No Objection Certificate by the District Forest Officer, SAS Nagar, Mohali, was issued on 14.07.2014; Zoning plan was approved by the Chief Town Planner, Punjab on 24.11.2015 and Detailed Project Report (DPR)/Service Plans were approved by the Chief Engineer, GMADA, Mohali, on 27.11.2015. As per established law, if the project proponent sells the project without obtaining necessary permissions or clear title of the acquired land, it would amount to adopting unfair trade practice. It was so said by the Hon’ble National Commission in Atul Maheshwari and ors. Vs. Yamuna Expressway Industrial Development Authority, II (2016) CPJ 623 (NC). Relevant portion of the said judgment reads thus:-

“OP should not have announced the scheme, until or unless they got clear title of the acquired land”.

 Similar view was expressed by the National Commission in Emerging India Real Assets Pvt. Ltd. and another vs. Kamer Chand and another, Revision-Petition No.756 of 2016, decided on 30.03.2016. In that case, when upholding the findings given by this Commission, that the project cannot be even marketed before getting approvals/sanctions, from the Competent Authorities, to launch it, it was observed by the National Commission, as under:-

 “We are unable to persuade ourselves to agree with the ld. counsel.  While affirming the order passed by the District Forum and commenting and deprecating the conduct of the opposite parties in the complaint, in launching the project and selling the farmhouses, even without obtaining sanction/approval from the competent authority, the State Commission has observed as follows:-

If a marketing agency sells out a project, for which, no approvals/sanctions have been granted by the Govt. Authorities, the said agency has to face the music and consequences of duping the gullible buyers, of their hard-earned money. In the public notice, it has specifically been mentioned by the GMADA that respondent no.2 and appellant no.1 are the sister concern. It is also apparent on record that before appellant no.1 started marketing the project, not even an application has been filed by respondent no.2, to get approval/sanction from the competent authorities, to launch the project. The information supplied vide letter dated 26.08.2014, referred to above, clearly states that not even a single application qua granting sanction to the project, has been received and dealt with, by the Competent Authority. In connivance with each other, the appellants and respondent no.2 committed a criminal offence of cheating. As per established law, builder cannot sell its property, unless and until proper approvals/sanctions have been obtained by it, from the Competent Authorities. It appears from the reading of documents on record that instead of selling a unit in a project, respondent no.2 in a very arbitrary manner, sold its share in a joint land measuring approx. 3807 acres, bearing hadbast No.326, Khewat No.92, Khatauni no.254-352, at Village Mirzapur, District Mohali, Punjab. There is nothing on record that said land was ever partitioned.

6.    We are in complete agreement with the view taken by the State Commission.  As noted above, the petitioners happen to be body corporate.  Before offering the farmhouses in the said project as Agent of Respondent No. 2, they must be aware about the status of the sanction for launch of the project.  Therefore, it is beyond one’s comprehension that the present Petitioner was not aware about the actual state of affairs for which only the developer could be held responsible.”

                In the present case also, there is nothing on record that when expression of interest/applications were invited to sell the said project, clear intimation was given to the intending purchasers that the project sold was in infancy stage and it will take years together before necessary permissions will be provided by the Competent Authorities.”

13.         In the present case also, as stated above, there is nothing on record to show that when the project, in question, was launched and sold, any permission was available with the opposite parties. This fact is further fortified from the RTI Information dated 23.06.2016 Annexure C-4, issued by the Department of Country and Town Planning, Punjab, wherein, it has been informed that CLU in respect of the project, in question, was approved vide memo dated 31.03.2014 i.e. after about more than two years, from the date of booking of the plot, in question. It is also not proved on record that the said fact of selling the project without permissions/approvals was brought to the notice of the intending purchasers. The purchasers were not informed that it will take years for obtaining necessary sanctions and approvals, after sale of the said project. In the present case, there is nothing on record to show that when notification dated 25.01.2017 granting exemption to the opposite parties from the applicability of some provisions of the PAPRA was granted, violations committed were brought to the notice of the Competent Authorities/Govt. The mega housing policy and the provisions of PAPRA debars any builder to advertise and sell the project before getting necessary sanctions. Merely because in some newspaper, a notice had appeared on behalf of the GMADA intimating the general public that Manohar Singh and Company is selling the project unauthorizedly, would not amount to intimation to the Competent Authorities i.e. the Govt. of Punjab, that the opposite parties have committed many mistakes, while selling the project, in question. Had those mistakes been brought to the notice of the Competent Authorities, at the relevant time, the license to launch the said project, was bound to be rejected, being in violation of provisions of the PAPRA; Special Package of Incentives under Industrial Policy 2009 and mega housing policy. Any ratification is possible, in case, the mistake committed is brought to the notice of the Competent Authorities. Thereafter, only the Competent Authorities by passing a conscious order can ratify the said mistake. In the present case, merely issuance of notification aforesaid, by the Competent Authorities, on 25.01.2017, would not ratify the mistakes committed in law by the opposite parties.
14.         Such a contention also came up for consideration, before this Commission in Shaminder Walia’s case (supra) and it was rejected by observing as under:-

“It was vehemently contended by Counsel for the opposite party that once exemption from the applicability of the provisions of PAPRA stood granted in the year January 2017, it will relate back to the date of launching of the project, and all irregularities stands rectified. To support above said contention, he has placed reliance on the ratio of judgment passed by the Hon’ble Supreme Court of India, titled as M/s Murudeshwara Ceramics Ltd. Vs. State of Karnataka, 2002 (1) R.C.R. (Civil) 130.

                We are not going to accept the arguments raised. It has already been held in Sukhvinder Singh Hayer` case (supra) that upon issuance of notification in the month of January 2017, granting exemption from the applicability of the provisions of PAPRA, violation committed prior thereto, cannot be rectified. To so say, in Sukhvinder Singh Hayer` case (supra), reliance was also placed upon the judgment passed by this Commission in Monika`s case (supra). The said finding was given in consonance with the findings of the National Commission in Emerging India Real Assets Pvt. Ltd. and another vs. Kamer Chand and another`s case (supra).

                As far as the reliance placed by Counsel for the opposite party on M/s Murudeshwara Ceramics` case (supra) is concerned, we have gone through the facts of the same very carefully and found that the same were altogether different from the facts of the present case. In the case before the Hon’ble Supreme Court of India, when interpreting the provisions of Section 109 of the Karnataka Land Reforms Act, 1961, it was stated that power of the Government to grant exemption with regard to the land, in any area from operation of some of the provisions of the Act, for using the said land for a particular purpose, are to be seen, not at the time of sale/purchase of the land in dispute, but at the time, when it was going to be put for the said use. It was noted that after sale of the land, in dispute, when it was going to be put for industrial use, exemption already stood granted. The position is altogether different; as in the present case, by indulging into selling the project without any sanctions in its hands, the opposite party has committed unfair trade practice, as defined in Section 2 (1) (c) (i) and (iii) of the CP Act.

                It is apparent on record that in the year 2012, activities of the opposite party in selling the project, without any sanction were noticed by the Competent Authorities and on 18.08.2012, as a result whereof, notice was published in a newspaper, stating that such sale was illegal. Copy of newspaper dated 18.08.2012, in which the said public notice was issued by the GMADA, is placed on record as Annexure C-10, in consumer complaint bearing no.890 of 2016, titled as Sheela Devi and another Vs. Manohar Infrastructure and Constructions Private Limited.”.

    

15.         In the case of Shaminder Walia (supra), it was vehemently contended that M/s Manohar Singh and Co. and the opposite parties namely M/s Manohar Infrastructure and Constructions Pvt. Ltd., are two different identities and notice issued in the said newspaper qua M/s Manohar Singh and Co. will not have any effect, so far, the project of the opposite parties (M/s Manohar Infrastructure and Constructions Pvt. Ltd.) is concerned. The said contention was rejected by this Commission, by placing reliance upon various documents and the photographs.

                In the present case, it was fairly admitted by Sh.I.P. Singh, Advocate, that the opposite parties are part and parcel of M/s Manohar Singh and Co. Above fact clearly demonstrates that the GMADA, when came to know about unauthorized sale of a project, issued a notice asking general public not to purchase any property from the opposite parties and also contemplated a legal action. However, it appears that no such legal action was taken against the opposite parties. It may be on account of connivance of the opposite parties with Offices of the said Authority.       

16.         Further contention of Counsel for the complainants is that amount was received without offering Buyer’s Agreement for signing, within a reasonable period say two or three months. This fact is not seriously disputed. It is only said that the complainants may come forward for execution of the same. As per the provisions of Section 6 of the PAPRA, it is incumbent upon the project proponent to execute Buyer’s Agreement on accepting application for purchase of unit etc., within a reasonable time say about two to three months. By not offering Buyer’s Agreement, for signing within reasonable time, the opposite parties committed unfair trade practice and also were deficient in providing service. It was also earlier so said by this Commission, in a case titled as Usha Kiran Ghangas Vs DLF Homes Panchkula Private Limited, Complaint Case No.93 of 2016, decided on 02.06.2016. Relevant portion of the said case, reads thus:-

“The opposite parties are also guilty of adoption of unfair trade practice. It is on record that the complainant booked the unit, in question, in the project aforesaid, on 16.02.2011. She was allotted unit, vide letter dated  23.02.2011, on which date, she had paid an amount of Rs.4 lacs. Buyer’s Agreement was not put for signing in a reasonable time, say two  to three months. She continued to make payment and when Buyer’s Agreement was got signed, on 18.08.2011, she had already paid an amount of Rs.21,68,524/-. By not offering Buyer’s Agreement, for signing in a reasonable time, the opposite parties also committed unfair trade practice. The complainant is a widow. Her interest needs to be protected”.

                At the same time, it is also held that merely taking a bald plea, in the absence of any documentary evidence, saying that the complainants were asked, number of times, to come forward for execution of buyer’s agreement, is of no help to the opposite parties. Not even a single document has been placed on record, in this case, by the opposite parties, asking the complainants, to come for signatures of Buyer’s Agreement. However, as far as letters dated 01.05.2014, 02.07.2014 and 29.07.2015 Annexures O-1, O-2 and O-3 are concerned, it may be stated here that vide the said letters, the opposite parties demanded further amount from the complainants. In those letters, there is no mention about the allotment letter or buyer’s agreement. As such, no help therefore can be drawn by the opposite parties from the letters, referred to above.  As such, in the present case, by not offering Buyer’s Agreement, for signing in a reasonable time, or even till date, the opposite parties committed unfair trade practice and are also deficient in providing service.

17.         At time of arguments, it was also vehemently contended by Sh.I.P. Singh, Advocate for the opposite parties that application to get mega project approved, was filed in the year 2011. Delay occurred on account of laxity on the part of the bureaucrats/Competent Authorities in granting permissions/approvals and further it was deliberately delayed, because of rivalry existing between the political party in power and the Managing Director/Directors of the Company.

                Such a plea has been taken just to raise it without any material on record. It may be stated here that if the application to get necessary permissions, was moved in the year 2011 before the Competent Authorities, what happened thereafter; whether any objection was raised; whether at any point of time, it was taken up with the Authorities concerned, to give permission(s), within three months, as per Rules or not, has not been made clear. There is nothing on record that when the Competent Authorities allegedly did not grant permissions/approvals and delayed the matter, any reminders were sent to them, to do the needful. Not even a single document has been placed on record that the Competent Authorities delayed the matter deliberately, despite the fact that necessary steps were taken at the end of the opposite parties, for obtaining requisite permissions, for launching and selling the said project. At the same time, there is nothing on record, whether any Officer(s) of the Management of this Company was/were the member(s) of any political party; they ever contested any election; and whether question of rivalry causing delay on account of political reasons was ever taken up before the Competent Fora/Court of Law. It is on record that to get necessary permission qua the land in the project, applications were moved in parts. The opposite parties continued to purchase land and continued moving the applications, to the Authorities. In this view of the matter, the plea taken by the opposite parties, stands rejected.

18.         A plea was also taken by the opposite parties, in its written version, to the effect that delay in delivery of possession of the plot was caused on account of ban on mining, as such, building material such as sand etc., remained short to an extent, meaning thereby that it had encountered force majeure circumstances.

                It may be stated here that as regards the alleged shortage of construction material like sand etc. in the market, nothing has been placed on record, by the opposite parties, to prove that it was unable to procure the said construction material, in adequate quantity. There is no evidence of the opposite parties having invited tenders for supply of construction material and there being no response to such tenders. A similar plea for delay in delivery of possession of the units, was taken by a builder, before the Hon`ble National Consumer Disputes Redressal Commission, New Delhi, in Consumer Case No.347 of 2014, titled as Swaran Talwar & 2 others v. M/s Unitech Limited (along three connected complaints),  decided on 14 Aug 2015,  which was rejected and the complaint was allowed in favour of the complainant. The principle of law, laid down, in the aforesaid case is fully applicable to be present case. In the present case also, the opposite parties failed to convince this Commission, that they actually encountered force majeure circumstances, as a result whereof, delay in handing over possession of the unit occurred. As such, the stand taken by the opposite parties, in this regard, is rejected.

19.         Further contention was raised by Counsel for the opposite parties that the complainants are investors. Plot was booked as a joint venture, for business and speculative purposes, as such, they would not fall within definition of consumer, as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986 (in short the Act, 1986).

                We are not going to accept this contention. In the present case, a specific plea has been taken by the complainants that they being family friends had purchased the plot, in question, with an intention to construct a two storied house, for living together, with their respective families.  No law including the CPA Act debars two family friends, to buy one plot and build the same, as per their convenience to reside therein alongwith their families. At the same time, there is nothing on the record that the complainants are property dealers, and deal in the sale and purchase of property, on regular basis, and as such, the plot, in question, was purchased by them, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. They waited for more than six years and have then filed this consumer complaint. Thus, in the absence of any cogent evidence, in support of the objection raised by the opposite parties, mere bald assertion to that effect, cannot be taken into consideration. Since the opposite parties have levelled allegations against the complainants, the onus lay upon them, to place on record, documentary evidence in that regard, which they failed to do so. Otherwise also, in a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  2016 (2) CPJ 316. Not only as above, recently under similar circumstances, in  a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, the National Commission, while rejecting similar plea raised by the builder, observed as under:-

 “ In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots.  A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots.  In a given case, separate houses may be purchased by a person for the individual use of his family members.  A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city.  A person may buy two or three houses if the requirement of his family cannot be met in one house.  Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose.  In fact, this was also the view taken by this Commission in Rajesh Malhotra & Ors. Vs. Acron Developers Pvt. Ltd. & Ors. First Appeal No. 1287 of 2014 decided on 05.11.2015.”

 

                The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The complainants, thus, fall within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the opposite parties, therefore, being devoid of merit, is rejected. 

20.         The next question that falls for consideration, is as to whether, the complainants are entitled to refund of the amount paid or not. It may be stated here that the plot, in question, was booked by the complainants, as far as back in March 2011 on making payment of booking amount of Rs.16,20,000/-. Thereafter, another amount of Rs.10,80,000/- was paid on 22.08.2013. Whereas, on the other hand, it is an admitted fact that even as on today, the project is not developed. The opposite parties while relying on some photographs are still saying that development at the project site is going on and near completion. However, photographs placed on record by the opposite parties themselves, reveal that still it will take a long time for completing the development work. It can easily be revealed from the said photographs that still lot of development work is pending to be done as far as the roads etc. are concerned. Sanitary/sewerage pipes and electric wires are found lying in open ground. It can be adjudged from the photographs, that entrance of the project has been beautified, to allure the innocent customers. Photographs itself prove the position of the project, as in December 2018.  At the same time, it is very significant to mention here that the plot was booked in the year 2011 and now it is December 2018. Still the opposite parties are saying that the complainants can come forward for execution of the Agreement meaning thereby that they will have to wait for more years, to get their plot because after that they will say that they cannot file a complaint before the expiry of period of handing over the plot, as mentioned therein (Agreement), it being premature. Under these circumstances, it can be said that there is a material violation in providing service, on the part of the opposite parties. The complainants cannot be made to wait for an indefinite period, for delivery of possession of the plot purchased by them. The opposite parties, therefore, had no right, to retain the hard-earned money of the complainants, deposited towards price of the plot. It is a settled law that when there is a material violation on the part of the builder, in not handing over possession by the stipulated date, the purchaser is not bound to accept the offer, even if the same is made at a belated stage  and on the other hand, can seek refund of amount paid. It was so said by the Hon’ble National Commission, in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, wherein, under similar circumstances, while negating the plea taken by the builder, it was held  as under:-

“I am in agreement with the learned senior counsel for the complainants that considering the default on the part of opposite parties no.1 and 2 in performing its contractual obligation, the complainants cannot be compelled to accept the offer of possession at this belated stage and therefore, is entitled to refund the entire amount paid by him along with reasonable compensation, in the form of interest.”

 

Not only as above, in a case titled as Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, wherein possession was offered after a long delay, this Commission, while relying upon the judgments rendered by the Hon`ble National Commission, ordered refund to the complainants, while holding as under:-

“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same.

 

Furthermore, in another case titled as M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the Hon’ble National Commission, under similar circumstances, held as under:-

“I am of the prima facie view that even if the said offer was genuine, yet, the complainants was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.

 

The above view taken by the National Commission, has been reiterated by it, recently in the case titled as Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No. 1814 of 2017 decided on 05.07.2018. Relevant part of the said order reads thus:-

“This Commission in Emaar MGF Land Ltd. & Anr. V. Amit Puri (First Appeal No.250 of 2014), decided on 30.03.2015, has held that if the Developer fails to deliver possession of the allotted plot/flat within the stipulated time, the allottee is under no obligation to accept an alternative plot. At the cost of repetition, we may reiterate that in the event of Developer failing to deliver possession of the property within the stipulated period, for any reason, save and except a force majeure condition, agreed to between the contracting parties, an allottee cannot be compelled to accept an alternate site/plot and he would be within his rights to seek refund of the amount deposited with the Developer against allotment”.

 

However, in the present case, as stated above, possession of the unit has not even been offered, what to speak of delay in offering thereof. The complainants, are, thus, entitled to get refund of amount deposited by them. In view of above facts of the case, the opposite parties are also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them, as also escalation in prices.

21.         Further contention was raised by Counsel for the opposite parties that in the face of supplementary agreement dated 16.06.2016, whereby the Govt. of Punjab, has granted permission to complete the project by 13.06.2018, and thereafter, further extension has been granted to them, by RERA to complete the project till 31.07.2019, as such, the complainants were to be handed over possession of the plot, on or before that date.

                First coming to the Supplementary Agreement dated 16.06.2016, it may be stated here that we have gone through the contents thereof, and are of the considered opinion that it is of no help to the opposite parties, as far delay in delivery of possession of the plot, in question, to the complainants is concerned. The said Agreement was signed between the opposite parties and the Govt. of Punjab, only in relation to permission sought by them (opposite parties), vide letter dated 25.08.2015 (after about more than three and a half years of booking of the present plot), for addition of 94.60 acres of more land in the project area. It was on account of this reason, that supplementary agreement was executed.

                At the same time, if this plea taken by the opposite parties that since supplementary agreement was executed on 16.06.2016 between them and the Govt. of Punjab and as such, now they (opposite parties) are liable to hand over possession of the plot to the complainants latest by 13.06.2018, is considered in favour of the opposite parties, then it would amount to admittance on their (opposite parties) part that till 16.06.2016, they were not in possession of the land even, but on the other hand, they had booked a plot and received 30% of the price of the plot, as far as back in 2011 and thereafter an amount of Rs.10,80,000/- on 22.08.2013. Furthermore, it is not clarified by the opposite parties that if the land for plot was ultimately got in their hands, by way of supplementary agreement dated 16.06.2016, then for which land, they were talking about in the application acknowledgment receipt dated 22.08.2013 Annexure C-2 issued in favour of the complainants, saying that all layout plans, specification and other details are tentative. If this is so, it amounts to grave unfair trade practice on the part of the opposite parties, as they had received an amount of Rs.16,20,000/- against a plot by March 2011, but on the other hand, till 15.06.2016, they have not even acquired land for the same (plot).

                Now coming to the letter dated 13.07.2018, Annexure O-5, we have gone through the same and found that extension has been granted to the opposite parties by RERA only with regard to registration of the project. This letter cannot be made a basis to say that the opposite parties were given any immunity out of the deficiencies and unfair trade practice, adopted by them, in respect of the plot, in dispute. Even otherwise, the said extension of registration has been given in respect of the project namely “The Palm (Palm Downtown/Palm Central Bay)” and not the Palm Springs.

                Sequence of events narrated above, clearly goes to prove that the conduct of the opposite parties, throughout remained contumacious. As stated above, not even a single permission to launch the project was available with the opposite parties at the relevant time. As has been discussed in earlier part of this order, permissions continued to pour in, upto the year 2017. Even as on today, there is nothing on record to show that development at the site is complete. It can safely be said that the complainants were well within their right, to file this complaint. It was nowhere agreed to between the parties, at the time of booking of the said plot, that the complainants can be made to wait for an indefinite period.

                At the same time, in the face of plea having been taken by the opposite parties that they were required to deliver possession of the plot to the complainants by 13.06.2018, as per the terms and conditions of the supplementary Agreement, or by 31.07.2019, referred to above, as such, in the same breath taking a plea that the present case is beyond limitation or that time is not to be considered as essence of the contract, is not sustainable in the eyes of law and is accordingly rejected. Even otherwise, it is not the proven case of the opposite parties that they were ready with delivery of possession of the plot, within a reasonable period of about two to three years, from the date of booking or say by 13.06.2018 even, but the complainants, failed to take the same, on account of some personal grounds/financial constraints. It is settled law that in the cases, where possession of the residential units is not offered by the builder, there is a continuing cause of action, in favour of the allottee/purchaser.  

22.         Further contention was raised by Counsel for the opposite parties that in the face of provisions of the RERA, under which the opposite parties have registered the project, in question, on 15.09.2017, it is not open to this Commission, to entertain and decide the present complaint. He further asserted that sufficient safeguard is provided under the provisions of RERA and if the complainants are feeling aggrieved of any action, on the part of the opposite parties, they may approach under the said Act (RERA) and not under the Act, 1986.

                We are not inclined to accept this argument. At the time of arguments, it is very fairly admitted by Counsel for the contesting parties, that the provisions of RERA are prospective in nature. It was also so said by the High Court of Bombay in the case of NeelKamal Realtors Suburban Pvt. Ltd. and anr. Vs. Union of India and ors. 2018 (1) R.C.R. (Civil) 298. It is an admitted fact that under the RERA, the opposite parties got themselves registered their project, only on 15.09.2017. Some of the provisions of RERA came into operation on 01.05.2016 and even the remaining of it, in May 2017. In all, the grievance has been raised by the complainants qua wrongful act/mistake done leading to deficiency in providing service and adoption of unfair trade practice, in selling the project by the opposite parties without sanctions/approvals, before coming into existence of RERA. Reading of the provisions of Section 88 of RERA makes it very clear that the same are in addition and not in derogation of the provisions of any other law for the time being in force. Section 79 of the RERA further makes it very clear that jurisdiction of only the Civil Court to entertain a suit or proceedings qua action taken as per the provisions of the said Act, is barred.

                It may be stated here that the Consumer Foras under the Act, 1986 despite having some trappings of a Civil Court are not the Civil Courts. As such, the jurisdiction of the Consumer Foras is not debarred, to entertain the complaints filed by consumers, alleging deficiency in providing service, negligence and adoption of unfair trade practice against the opposite parties. Intention of the framers of law has been made clear by the concerned Department i.e. Ministry of Housing and Urban Property Alleviation, Government of India in its website

 

“85. Are the civil courts and consumer forums barred from entertaining disputes under the Act?

As per section 79 of the Act civil courts are barred from entertaining disputes (suits or proceedings) in respect of matters which the Authority or the adjudicating officer or the Appellate Tribunal is empowered under the Act to determine. However, the consumer forums (National, State or District) have not been barred from the ambit of the Act. Section 71 proviso permits the complainant to withdraw his complaint as regards matters under section 12, 14, 18 and section 19, from the consumer forum and file it with the adjudicating officer appointed under the Act.

 

86. Can a complainant approach both the Regulatory Authority/adjudicating officer and the consumer forums for the same disputes?

The laws of the country do not permit forum shopping, thus, an aggrieved can only approach one of the two for disputes over the same matter.”

 

                It was also so said by the State of Punjab in its Official Website Portal rera.punjab.gov.in. The above fact clearly indicates that in the face of provisions of the RERA, any action taken under the provisions of Act 1986 is not debarred.  

                Be that as it may, a similar question came up for consideration, before this Commission, when considering the applicability of the provisions of Section 8 (amended) of Arbitration Act 1996 Act viz a viz CPA 1986, in the case of  ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126, wherein, while relying upon ratio of judgments of the Hon’ble Supreme Court, titled as Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6  SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013), Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha  (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),  and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC),  it was held that even in the face of existence of arbitration clause in an Agreement/Allotment Letter, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint.

                It was authoritatively said that in view of Section 3 of the Act 1986, it is open to the consumers to approach the Consumer Foras, for redressal of their grievance, notwithstanding that he/she can get relief under any other Act. Similar findings, to the effect that an Arbitration Clause in the Agreements between the complainant(s) and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act, has been upheld by the Hon’ble Supreme Court of India, in Civil Appeal bearing No.23512-23513 of 2017, vide order dated 13.02.2018.

                In view of above findings, we can safely say that provision of the RERA and PAPRA will not debar the jurisdiction of this Commission in entertaining the complaints filed by a consumer alleging deficiency in providing service, negligence and adoption of unfair trade practice, on the part of the opposite parties.

23.         In the present case, an attempt has been made to by-pass the above provision of PAPRA by showing the sale as an expression of interest to purchase a plot. It has been so said before this Commission, at the time of arguments, by Counsel for the opposite parties that sale of the plot has not yet been confirmed. It may be stated here that it was an outright sale, when first payment of Rs.16,20,000/- was accepted by the opposite parties, in the year 2011 and thereafter an amount of Rs.10,80,000/- in August 2013. Above said contention raised by Counsel for the opposite parties, qua similar project, was rejected by this Commission, in Appeal No.248 of 2016, decided on 31.08.2016, titled as M/s Manohar Infrastructure and Constructions Pvt. Limited Vs. Sh.Tilak Raj Bakshi, wherein it was observed as under:-

“Furthermore, as is evident from the documents on record, the appellant is also guilty of violation of Section 6 of the Punjab Apartment and Property Regulation Act, 1995, (in short the PAPRA Act). In a very deceptive manner, an attempt has been made to show actual sale of plot, as an expression of interest. As has been held in earlier part of this order, vide document Annexure C-2, the terms and conditions of sale settled to make payment was also made available. Once it is so, by not offering the Buyers Agreement for signing in a reasonable time, say two to three months but on the other hand, after a lapse of many years of the sale of plot, the appellant has committed an unfair trade practice.”

 

24.         It is evident from the facts mentioned above that when the project in question was sold, neither CLU nor any other permission was available with the opposite parties. The Agreement was entered into with the Govt. only on 14.06.2013, to launch this project and that too, subject to many conditions. It is also on record that to get necessary permission qua the land in the project, applications were moved in parts. Opposite parties continued to purchase land and continued moving the applications, to the Authorities. Facts clearly indicate that the opposite parties were guilty of launching a project against mandate of law.
25.         In view of above, contention of Counsel for the opposite parties that since the complainants themselves have showed preference for a plot, after expression of interest was filled by them and they waited for allotment of a plot, as such, delay if any will be deemed to have been waived of by them, stands rejected. There is nothing on record to show that plot was selected by the complainants and further when the plot was sold, not even a single permission was available with the opposite parties. There is nothing on record to show that delay caused was condoned by the complainants. The opposite parties also cannot take shelter under the plea that time is not to be considered as essence of the contract.
26.         It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the complainants. It is not in dispute that the amount aforesaid, was paid by the complainants, without getting anything, in lieu thereof. Already a period of more than six years has lapsed, the complainants are still empty handed. It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon`ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335. In view of above, the complainants are certainly entitled to get refund of the amount deposited, alongwith interest on the deposited amount, from the respective dates of payments actually made by her.   
27.         At the same time, it is also held that no complicated question of facts and law are involved in this case. It is a simple case of non-execution of agreement within the reasonable time; non-allotment of plot; and non-delivery of possession of the plot(s)/unit(s) purchased by the complainants, in the project of the opposite parties. This is a case of deficiency in providing service and also adoption unfair trade practice. This Commission is, therefore, competent to adjudicate the present complaint. Plea taken by the opposite parties, in this regard, as such, stands rejected.
28.         It has further been vehemently contended by Sh.I.P. Singh, Advocate, that possession of the plot will be offered on signing of buyer’s agreement by the complainants. They may come and do so. It may be stated here that once it has been held above that the opposite parties indulged into unfair trade practice and were also deficient in providing service, as they failed to obtain necessary permissions to launch and sell the said project and also there has been an inordinate delay in handing over possession of the plot(s), as such, now at this stage, this stand has no significant value in the eyes of law.
29.         For the reasons recorded above, both the complaints are partly accepted, with costs, in the following manner:-

 

In Consumer complaint bearing no.300 of 2018, opposite parties no.1 to 3, jointly and severally are directed as under:-

 

1. To refund the amount Rs.27 lacs, to the  complainants, alongwith interest @13% p.a.,  from the respective  dates  of  deposits onwards.

 

2. To pay compensation, in the sum of Rs.1,00,000/- for causing mental agony and physical harassment, to the complainants, as also escalation in prices.

 

3. To pay cost of litigation, to the tune of Rs.33,000/- to the complainants.

 

In Consumer complaint bearing no.322 of 2018, the opposite party is directed as under:-

 

1. To refund the amount Rs.29,25,000/- to the  complainants, alongwith interest @13% p.a.,  from the respective  dates  of  deposits onwards.

 

2. To pay compensation, in the sum of Rs.1,00,000/- for causing mental agony and physical harassment, to the complainants, as also escalation in prices.

 

3. To pay cost of litigation, to the tune of Rs.33,000/- to the  complainants.

 

30.         The payment of awarded amounts mentioned at sr.nos.(i) to (iii) above, shall be made in both the complaints, respectively, in the manner ordered above, within a period of 45 days from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) thereafter shall carry penal interest @15% p.a., instead of @13%, from the date of default and interest @13% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of respective complaints, till realization.
31. However, it is made clear that, if the complainant(s) in any of the above complaints, have availed loan facility from any banking or financial institution, for making payment towards their respective plots, it will have first charge of the amount payable, to the extent, the same is due to be paid by them (complainants).
32.         Certified copy of this order be placed in the connected file, referred to above.
33.         Certified Copies of this order be sent to the parties, free of charge.
34.         The file be consigned to Record Room, after completion

Pronounced.

10.12.2018

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

 (PADMA PANDEY)

        MEMBER

 

 

Sd/-

(RAJESH K. ARYA)

MEMBER

Rg.