JUSTICE V.K.JAIN (ORAL)

 The respondent/complainant was allotted a residential plot in a project namely Augusta Park which the petitioner had to develop in Sector 109 of SAS Nagar, Mohali on 11.05.2007.  An agreement was executed between the parties on 04.07.2007 incorporating their respective rights and obligations in respect of the said transaction.  A revised allotment letter was thereafter issued to the complainant on 18.08.2007. 

2.      Vide letter dated 05.01.2012, the petitioner informed the complainant inter alia as under:-

The development activities in all three sectors of Mohali Hills i.e. Sectors 105, 108 and 109 are full swing and we are pleased to inform you that significant progress has been made with respect to development of basic infrastructure like water pipelines, sewer pipelines and development of roads, parks in these sectors. The development work of road and other basic infrastructure has been completed in portions of Augusta Greens Sector 109, Mohali Hills, where your Plot is situated. Further, you may note temporary electricity and water connection has already been sanctioned for the Project.

In view of the above development and our constant endeavour to enhance our customer's satisfaction, we are prepared to hand over possession of the Plot to you, subject to your making payments mentioned hereunder:

3.      The complainant sent a response to the above-referred letter dated 05.01.2012 stating inter alia that he was being given incomplete possession as basic infrastructure like STP, electricity, service station and rain water harvesting had not been done.

4.      Vide letter dated 06.12.2012 the petitioner informed the complainant inter alia as under:-

1. For the registration process, it is important that the work for the entire sector to be completed, post which the company would apply for the completion certificate.  Intimation from our end will be communicated once we have the registration certificate with us. We would further like to update that we are expediting the development activity in the concerned area and shall keep you updated on the status.

2. As mentioned above.

3. As mentioned in point 1. the overall infrastructural work is going on In the said sector where your unit is located. With reference to the work on water treatment plant, rain water harvesting and laying down of water, sewerage and electricity is also going on and an update will be shared with from time to time.

5.      Vide letter dated 08.07.2014 available on page 97 of the paper book the petitioner required the complainant to pay the amount mentioned in the said letter and stated that on receipt of the afore-said amount the process of execution and registration of conveyance deed shall commence. 

6.      The complainant sent a letter dated 21.07.2014 to the petitioner disputing the demand and also asking the petitioner as to when it had taken the occupancy certificate or completion certificate.

7.      The complainant approached the concerned District Forum by way of a consumer complaint filed on 27.08.2014 seeking the following reliefs:-

“That the cause of action arose to the complainants lastly on  8.7.2014 When the O.Ps raised illegal demand of money and the cause of action still continuing , as the amount is lying deposited  with the O.Ps and they have failed to hand over the possession to the complainants till date , as such .the present complaint is being filed within the period of limitation.

It is, therefore, respectfully prayed that the Ops be directed to pay Rs.15,000/- per month as compensation /penalty for delayed possession from 4.7.2010 till the possession is physically handed over to the complainant and adjust the amount accordingly with the amount to be paid by complainant i.e EDC charges and stamp duty charges and pay the balance amount to the complainant .The O.Ps be further directed to pay Rs.5,00,000/- as compensation for deficiency in service .unfair trade practice and mental harassment suffered by the complainants and also Rs.55,000/- as litigation expenses to the complainant in the interest of justice.”

8.       The complaint was resisted by the petitioner which admitted the allotment made to the complainant as well as the correspondence exchanged between the parties.  The petitioner took a preliminary objection that the possession having been offered on 05.01.2012 the complaint was barred by limitation prescribed in Section 24(A) of the Consumer Protection Act.  On merits, it was alleged that the petitioner had completed the amenities as per Clause 23 of the agreement executed between the parties and the possession had already been offered to the complainant on 05.01.2012.  This was also an objection of the petitioner that the cost of the plot being more than Rs.36 lakhs, the District Forum did not have pecuniary jurisdiction to entertain the complaint.

9.      The District Forum vide its order dated 01.07.2015 directed as under:-

i) To pay to the complainant Rs. 15,000/- per month as penalty for delayed possession from 4.7.2010 till the filing of the complaint.

ii)To also pay the penalty for the delayed possession @ Rs.15,000/- per month from the date of filing of the complaint till the possession of the plot is physically handed over to the complainant after providing the internal services. The amount so accrued shall be paid/adjusted to the outstanding amount, if any, at the time of handing over of the possession/registration of the sale deed.

iii) To also pay an amount of Rs. 1,00,000/- to the complainant as compensation for deficiency in service and unfair trade practice and mental harassment suffered by him.

iv) To pay Rs. 15,000/- as costs of litigation to the complainant.

10.    Being aggrieved from the order passed by the District Forum the petitioners approached the concerned State Commission by way of an appeal.  Vide impugned order dated 14.09.2015 the State Commission dismissed the appeal. 

11.    Being aggrieved from the order passed by the State Commission the petitioner is before this Commission. 

12.    The first question which arises for consideration in this case is as to whether the consumer complaint when instituted was barred by limitation or not.  In the present case, though the possession was offered vide letter dated 05.01.2012, the internal services having not been completed by that time,  the said offer was not in accordance with the agreement between the parties and, therefore, cannot be considered to be a valid offer of possession.   Therefore, in view of the decision of the Hon’ble Supreme Court in Meerut Development Authority v. M.K. Gupta,  IV (2012) CPJ 12 (SC) the complainants had a recurrent cause of action to institute the consumer complaint. 

13.    As far as the pecuniary jurisdiction is concerned, I am in agreement with the Ld. counsel for the petitioner that since the cost of the plot itself was more than Rs.34 lakhs the District Forum did not have the requisite pecuniary  jurisdiction. A reference in this regard can be made to the decision of a Three-Member Bench of this Commission in Ambrish Kumar Shukla & Ors. v. Ferrous Infrastructure Pvt. Ltd., I (2017) CPJ 1 (NC) wherein  it was held that the values of the services in such a case would be the sale consideration agreed to be paid by the buyer to the seller.  However, the question which arises for consideration is as to whether in the facts and circumstances of this case the matter needs to be remitted back to the concerned consumer forum for deciding the complaint afresh on merits or not.  In view of the decision of this Commission in Dushyant Kumar Gupta v. Today Homes & Infrastructure Pvt. Ltd., II (2017) CPJ 262 (NC), the appropriate course of action in such a matter would be to return the consumer complaint for being instituted before the Consumer Forum having pecuniary jurisdiction in the matter.  In view of the Consumer Protection Act, 1986 having been repealed by the Consumer Protection Act,  2019, and the pecuniary jurisdiction now having been vested in the District Forum where the consideration paid is less than Rs. 1 crore, the consumer complaint if returned to the complainant will have to be instituted before the District Forum and cannot be instituted before a State Commission.   Therefore, no useful purpose will be served from returning the consumer complaint when the said complaint was decided on merits by none other than the concerned District Forum. 

14.    The Ld. counsel for the petitioner relies upon the decision of the Hon’ble Supreme Court in National Insurance Company Ltd. Vs. Harjit Rice Mill (2005) 6 SCC 45.  In Harjit Rice Mill (supra) the State Commission where the complaint had been instituted did not have the pecuniary jurisdiction to entertain the consumer complaint.  Though a plea had been taken by the insurer alleging therein that the State Commission did not have the requisite pecuniary jurisdiction the said plea was not decided.  It was brought to the notice of the Hon’ble Supreme Court that the Consumer Protection Act had been amended in the meanwhile thereby enhancing the pecuniary jurisdiction of the State Commission and the matter was now within the said enhanced jurisdiction of the State Commission.  The Hon’ble Supreme Court,  therefore, remanded the matter back to the State Commission for the reasons stated in the judgement.   In my opinion, this judgement rather goes contrary to the stand taken by the petitioner company since the consumer complaint in terms of the enhanced jurisdiction under Consumer Protection Act, 2019 can be filed only with the District Forum.  On merits, the matter does not need to be remitted back.   Therefore, I find no merit in the submission based upon the pecuniary jurisdiction. 

15.    Coming to the merits of the case Clause 23 of the agreement executed between the parties on which reliance is placed by the parties reads as under:-

The Company shall be responsible to provide internal services within the Project, which, inter alia, includes laying of the roads, water lines, sewer lines, electrical lines etc. However, it is understood that external or peripheral services such as water lines, sewer lines, storm water drains, roads, electricity, horticulture and other such services Integral to the infrastructure are to be provided by the State Government authorities and or the local authorities.

          It would thus be seen that the petitioner was required to provide internal services in the project which included laying of roads, water lines, sever lines, electrical lines etc.  Only the external or peripheral services were to be provided by the State Government or the concerned local authority.  The use of word “includes” and “etc.” in the first sentence of the clause clearly shows that all the internal services were to be provided by the petitioner irrespective of the nature of those services and such services were to include water lines, sever lines and electrical lines. 

16.    It is evident from the correspondence exchanged between the parties particularly the letter of the complainant available on page 93 of the paper book and the letter of the petitioner available on page 94 of the paper book that all the internal services had not been completed by the petitioner since sewerage treatment plant, rain water harvesting and electrical sub-stations had not been completed.  Vide letter dated 05.01.2012 on page 94 of the paper book the petitioner informed the complainant  that subsequent to completion of those amenities they shall start the process of registration and shall keep him updated of the status.  There is no evidence of the petitioner having intimated the complainant at any point of time before institution of the consumer complaint that it had completed the sewerage treatment plan, rain water harvesting services and electrical sub-stations.  Therefore, it would be difficult to even claim that the afore-said internal services had been completed by the date on which the consumer complaint was instituted.

17.    Even in the written version to the consumer complaint the petitioner did not claim that the sewerage treatment plant, rain water harvesting and electrical sub-stations had been completed by it.  Had these internal services been completed even by that time the petitioner would specifically have stated so in its written version.

18.    The possession vide letter dated 05.01.2012 having been offered without completing the sewerage treatment plan, rain water harvesting and electrical sub-stations was not in consonance with the agreement executed between the parties and the complainant obviously could not have accepted possession of the plot without completion of the essential amenities.  No one can be expected to build a house on a residential plot of land and start living in that house without a provision for sewerage treatment plant, rain water harvesting and electrical sub-station.  In fact neither the sewerage connection can be provided without erection of sewerage treatment plan nor an electricity connection can be provided without erection of an electrical sub-station in the complex.  Therefore, the complainant, in my opinion, was justified in not taking possession on the basis of the letter dated 05.091.2012.

19.    No evidence was produced before the State Commission to prove the date on which the above-referred internal services i.e. sewerage treatment plant, rain water harvesting and electrical sub-stations were provided.  Though, the Ld. Counsel of the petitioner company submits that they have obtained the partial completion certificate on 16.10.2015 the said partial completion certificate has not been placed on record nor the same was filed before the State Commission. 

20.    As far as the regular completion certificate is concerned the petitioner was exempted from obtaining such a certificate vide notification available on pages 164-166 of the paper book.  Based upon the afore-said notification, the petitioner informed Government of Punjab that they were exempted under Section 14 of PAPRA by way of notifications referred in the said letter the dates of the notification  being 22.12.2006, 22.01.2008 and 11.08.2006.  The Punjab Urban Planning and Development Authority thereafter issued a letter dated 10.06.2013 confirming that the petitioner had been granted exemption from Section 14 of PAPRA in terms of the notifications referred hereinabove. 

21.    The Ld. counsel for the petitioner states that vide subsequent notification dated 02.09.2014 they were permitted to obtain the partial completion certificate.  As noted earlier according to the Ld. counsel for the petitioner the said partial completion certificate was actually obtained by them on 16.10.2015.  In my opinion, the complainant is entitled to compensation from the date committed for delivery of possession till the date on which the internal services in terms of Clause 23 of the Buyer’s Agreement were actually completed by the complainant and this would include all services which the petitioner company had to provide and  would exclude only the services which the State Government or the Local Authority had to provide.               

22.    Though the complainant did not make a specific prayer for delivery of possession of the allotted plot to him nor did the fora below direct delivery of possession of the plot, the fora below, in my opinion, ought to have given such a direction so that the order for payment of compensation does not continue to operate for an indefinite period and to avoid a situation where there is no compulsion on the petitioner to deliver possession except the monetary compensation to the complainant.

23.    The revision petition is, therefore, disposed of with the following directions:-

(i)      If the internal services in terms of this order have already been completed by the petitioner company it shall offer possession of the allotted plot to the complainant within six weeks from today. If any internal service is incomplete, it shall be completed within 3 months and possession will be delivered immediately thereafter.

(ii)      The petitioner shall pay the compensation calculated at Rs.15,000/- p.m.  w.e.f. the committed date for delivery of possession till the date on which all the internal services in terms of this order were/are actually completed by it in this project.  If there is any dispute between the parties as regards the date on which all such services were complete, such a dispute would be decided by the District Forum in the execution proceedings. 

(iii)     In addition to the compensation @ 15,000/- per month in terms of direction No. (ii) above, the petitioner shall also pay a compensation quantified at Rs. 1,00,000/- to the complainant for the mental agony and harassment undergone by him.

(iv)    The compensation, if any, already credited by the petitioner company in the account of the complainant shall be set off while complying this order. 

(v)     As far as service tax is concerned the same shall be payable by the complainant along-with interest on that amount @ 10% p.a. from the date on which the service tax was actually paid by the petitioner to the Government till the date on which it is paid to the complainant or is adjusted out of the compensation payable to him in terms this order. 

(vi)    The external development charges shall be paid by the complainant to the petitioner, along-with the interest on those external development charges @ 10% p.a. from the date on which the said charges were paid by the petitioner to the Government or were demanded from the complainant whichever was later.

(vii)    The complainant shall also pay a sum of Rs. 1098/- on account of delay in payment of instalments as demanded in the letter of the petitioner dated 05.01.2012.  No other charges shall be payable by the complainant to the petitioner for the period prior to the date on which the compensation in terms of this order is actually offered to him. 

(viii)   Charges of item No. 4, 5, 6, 7, 8 & 9 on page 97 will be payable by the complainant to the petitioner on offer of possession.  However, club charges will not be payable if the complainant is not interested in obtaining the membership of the club.  As far as maintenance charges are concerned, the same shall be payable w.e.f. the date on which the possession in terms of this order is offered to the complainant.