Punjab

Patiala

CC/19/396

Sandeep Gupta - Complainant(s)

Versus

The Patiala Urban Planing & Develoment Autharity - Opp.Party(s)

Sh Dixit Raj Kapoor

28 Apr 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

PATIALA.

                                     

Consumer Complaint No.	:	CC/ 396/2019
Date of Institution	:	20.9.2019
Date of Decision	:	28.4.2023

Sandeep Gupta s/o Sh.P.K.Gupta r/o # Flat No.9-C, City Centre Apartment, Patiala.                                                                  …………...Complainant

                                      Versus

1. The Patiala Urban Planning &  Development Authority (PDA) PUDA Complex, Room No.101, Urban Estate, Phase-2, Patiala through its Chief Administrator.
2. The Omaxe Ltd. having its registered office at 7, LSC, Kalkaji, New Delhi- 110019 through its Managing Director.

…………Opposite Parties

Complaint under the Consumer Protection Act

 

QUORUM

                                      Hon’ble Mr.S.K.Aggarwal, President

                                      Hon’ble Mr.G.S.Nagi, Member        

 

PRESENT:                   Sh.Dixit Raj Kapoor, counsel for complainant.

                             Smt.Kusum Sood, counsel for OP no.1.

                             Sh.S.S.Sahni, counsel for OP No.2. 

 

ORDER

 

1. The instant complaint is filed by Sandeep Gupta s/o Sh.P.K.Gupta (hereinafter referred to as the complainant) against Patiala Urban Planning and Development Authority (PDA) and another (hereinafter referred to as the OP/s) under the Consumer Protection Act (for short the Act).
2. The averments of the complainant are as follows
3. That OP No.1 proposed to develop a project known as PDA-OMAXE CItY, at Sirhind Road, Baran, Patiala. Mr.Sanjay Kumar applied to OPs No.1&2 for the allotment of EWS House (economic weaker section) scheme in the aforesaid project vide application No.109746 dated 21.5.2010 paid earnest money of Rs.31702/- against the tentative price of Rs.3,10,016/-  to OPs No.1&2. In the draw of lots held on 28.7.2010 Sh.Sanjay Kumar S/o Gurcharan Singh was declared successful and flat in Block Daisy, Cluster A, Flat No.SF3, at Second Floor, measuring super area approx.350.30sq was allotted to him vide allotment letter dated 29.12.2010 by the OPs.
4. Thereafter, as per terms and conditions of allotment letter, said Sanjay Kumar deposited amount of Rs.45802/-, 26352/-, 25770/-,1,30,000/-,31050/- and 19765/- on different dates. The said flat was transferred by said Sanjay Kumar to the complainant through OPs on 4.2.2015. Thereafter, as per terms and conditions of allotment letter dated 29.12.2010, complainant also deposited Rs.22285/-, Rs.21702/-, Rs.21120/-, Rs.20540/-, Rs.20,000/- and Rs.33,880/- on different dates.
5. It is averred that as per the terms and conditions of allotment letter, possession of the flat was to be delivered by 29.12.2013 i.e. within three years from the date of allotment i.e. on 29.12.2010, but till date possession of flat was not delivered. Complainant wrote letter dated 11.3.2019 for the refund of amount deposited by him but of no avail.  There is thus deficiency in service on the part of the OPs which caused mental agony and harassment to the complainant. Consequently, prayer has been made for acceptance of complaint.
6. Upon notice, OPs appeared through counsel and filed written statements having contested the complaint.
7. In the written statement filed by OP No.1, it raised certain preliminary objections. It is submitted that as per the scheme OP No.1 had only 15% share of the total consideration of the project pertaining to the construction of flats, whereas M/s OMAXE had a shre of 85% in the same. All the development of the project was to be undertaken by M/s Omaxe and not by OP No.1. Thus OP No.1 is not liable in any way for any alleged deficiency. On merits, averments of the complainant are stated to be matter of record. However, after denying all other averments, OP No.1 prayed for dismissal of complaint.
8. In the written statement filed by OP no.2 it also raised various preliminary objections. It is pleaded that the complainant has concealed the factum of pendency of CWP No.8100 of 2011 titled as Harbhajan Singh and Ors. Vs. State of Punjab and ors, and the  development of the entire project was stalled as Status Quo  by the Hon’ble Punjab & Haryana High Court vide its order dated 29.7.2011 and the same was vacated only upon dismissal of writ petition on, 26.9.2013. It is further pleaded that M/s Omaxe Ltd. was in Joint Development Agreement with PDA as it was highest bidder so the development rights were allotted in favour of it. No direct payment had even been made to Omaxe by the complainant and the payments were made by complainant directly to OP No.1 and even all the post allotment correspondence was exchanged between complainant and OP no.1. Further as there was status quo order passed by the Hon’ble Punjab and Haryana High Court, hence the allotees were given rebate/ extension  w. e. f. 29.7.2011 to 28.9.2013 i.e. the period of operation of status quo.
9. In the mean time, OP No.1 wrongly terminated JDA (Joint development agreement) vide  Memo No.3861-62 dated 20.6.2011. Said notice was duly replied by OP No.2 but termination notice was never withdrawn by OP No.1. After disposal of writ petition No.8100 of 2011, OP No.2 (Omaxe Ltd.) has been continuously following PDA to allow it to commence the development. However, till date PDA has not taken any decision and still the negotiations with PDA are in progress. As such OP No.2 could not work/develop at the site.
10. During the pendency of another CWP, before the Hon’ble Punjab & Haryana High Court, OP No.1 further floated fresh tenders for the completion of the work for common area i.e. roads, water supply, electricity services etc. at OMAXE City. OP No.2 also participated in the said tender and same was granted to OP no.2on fresh contract and the said work is in progress. Thus, it is clear that OP No.2 was/is always ready and willing to perform its part.

Not only this, Welfare Association of the Project i.e. PDA Residents has also preferred CWP No.14348 of 2016, wherein issue regarding non-development has been raised and the said writ petition is pending subjudice before the Hon’ble High Court. Vide order dated 1.8.2017,Hon’ble High Court has directed PDA to seek instructions as to whether they want to carry on development themselves or through OP NO.2(Omaxe Ltd.) or through any third party. On the adjourned date, counsel for PDA made a statement that inter-se dispute of PDA and Omaxe Ltd. is pending before Special Committee constituted for looking into such matter headed by Chief Secretary, Govt. of Punjab and on his request, the matter was adjourned and thereafter, till date no decision has been taken by the Special Committee and the said CWP is pending before the Hon’ble Punjab & Haryana High Court. Thus the non development of the project is on account of the facts beyond the control of OP No.2.On merits, OP No.2 denied all the averments of the complainant and prayed for dismissal of complaint.

11. In evidence, ld. counsel for complainant, tendered affidavit of complainant,Ex.CA, copy of  copy of  allotment letter,Ex.C1, copy of transfer letter dated 4.2.2015,Ex.C2, copy of receipt demand draft dated 20.5.2010,Ex.C3, copies of receipts, Exs.C4 to C15, copy of refund letter dated 11.3.2019,Ex.C16  and closed evidence.
12. Ld. counsel for OP No.1 has tendered in evidence, Ex. OPA, affidavit of Ms. Jashanpreet Kaur Gill, Estate Officer, PDA, Patiala. alongwith document, Ex.OP-1/A and closed evidence.
13. Ld. counsel for OP No.2 has tendered in evidence, Ex.OPB, affidavit of Mandeep Singh Cheema, authorized signatory of OMAXE alongwith documents, Exs.OP1 to OP20 and closed evidence.
14. We have heard ld. counsel for the parties and have also gone through the record of the case, carefully.
15. The OPs had given a wide publicity for construction of flats for economically weaker section in their development scheme under the name of PDA Omaxe City Patiala.
16. Admittedly  Mr.Sanjay Kumar, from whom complainant purchased the flat in question,  applied to the OPs for the allotment of EWS house (economic weaker section) in PDA-OMAXE CITY and paid an earnest money of Rs.31,702/- vide DD, Ex.C3 against the tentative price of Rs.3,10,016/-. Flat No.SF3 in Cluster A Block Daisy was allotted to Sanjay Kumar , as is evident from letter bearing memo No.3142 dated 29.12.2010,Ex.C1, issued by Estate Officer, PDA, Patiala. The said flat was re-allotted to the complainant by PDA vide letter No.1948 dated 4.2.2015, Ex.C2. Sanjay Kumar deposited certain amounts with the OPs as per the receipts placed on the file (Exs.C4 to C9). The complainant paid the subsequent installments as per receipts Exs.C10 to C15 with last installment of Rs.33,880/- having been paid 12.6.2017(Ex.C15) totaling Rs.4,49,968/- including enhancements etc. As per the complainant, possession of the flat was to be given within 3 years from the date of allotment subject to  any unforeseen circumstances and force majeure conditions such as act of God, Fire, Floods, Explosion, War, Riots, Terrorist attacks or Sabotage. However, no such possession was given. Complainant wrote letter Ex.C16 for the refund of the amount alongwith interest but no action was taken by OP No.1.
17. OP No.1 in its reply to the complaint has taken the preliminary objection that all the development works were to be taken up by OP No.2 who was in possession of the project site and is not liable for the development of the project or construction of the flats and solely shifted the onus on OP No.2 for the delivery of the flats. However, it has not been brought on record by OP No.1 as to when the site was handed over to OP No.2 for development and execution of the project.
18. OP No.2 in its written statement has submitted that a Civil Writ Petition No.8100 of 2011 titled as Harbhajan Singh & others Vs. State of Punjab & Others was filed by land holders before the Hon’ble Punjab & Haryana High Court. Following order was passed by Hon’ble High Court on 29.7.2011(Ex.OP3) in civil miscellaneous application No.1312 of 2-12 in the said CWP:

“Ld. counsel for respondents seek time to file replies.

Ld. counsel for the petitioners says that the land was acquired for public purposes but the same was being used for private purpose. In view of this submission we direct that status- qua be maintained and no construction be raised till further orders”.

As such all the construction activities were stopped on 29.7.2011.

19. The said order was finally vacated on 26.9.2013, vide order, Ex.OP2, as the petition was dismissed as withdrawn.
20. Ld. counsel for OP No.2 has argued that PDA Omaxe City was a joint venture of PDA, Patiala Development Authority and M/s Omaxe Ltd. The work of development of the construction was allotted to OP No.2 on the basis of the highest bid having been made by OP No.2 at the time of allotment of work through Open Tender System. Ld. counsel further argued that no payment whatsoever has been made by the complainant to OP No.2 and all the payments were made to OP NO.1.
21. Further after the disposal of CWP 8100 of 2011 on 26.9.2013 another CWP 14348 of 2016 was filed by the Welfare Society of plot holders of PDA Omaxe City before the Hon’ble High Court, which is Ex.OP5 and the Hon’ble High Court in its interim order dated 1.8.2017 had held that, “Ld. counsel appearing on behalf of respondent No.1 states that they had issued a notice for termination of the Joint Development Agreement with respondent No.2-private respondent. He seeks time to take instructions as to whether respondent No.1 is agreeable to respondent No.2 carrying out the work so far as it pertains to petitioner  or whether respondent No.1  will  itself carry out the said work”.
22. OP No.2 has also placed on record order dated 25.9.2017 against the same CWP (Ex.OP5) vide which State of Punjab was impleaded as a party as disputes inter se between OPs No.1&2 have been referred to a committee headed by Chief Secretary Govt. of Punjab and same was allowed. It was also held that the dispute between the parties is no reason for the petitioners being deprived of their entitlement under the agreement entered into by their members with the respondents.
23. Further vide order dated 16.1.2018 Ex.OP6, Hon’ble High Court in its interim order had held that, “ Ld. counsel for respondent No.2 states that in terms of order dated 25.9.2017 of this Court, the Committee was to convey the decision regarding the meeting to be held between respondent No.1 and respondent No.2.The Committee has to look into the dispute between the petitioner and respondents No.1&2. It was pointed out that the said meeting was held on 1.11.2017 and no decision has been taken so far. The Special Committee is directed to take a decision within next 03 weeks and submit the report to this Court.
24. From the above, it transpires that OP No.1 had issued a notice of termination to OP No.2. The inter-say dispute between OPs No.1&2 is pending before Special Committee headed by Chief Secretary, Govt. of Punjab and no decision has been taken by the Committee till date and CWP is pending before the Hon’ble Punjab & Haryana High Court from 2016.
25. The notice of termination issued vide No.3861-62 dated 20.6.2011 is Ex.OP13, which has been issued on the ground that the development works have not been carried out by OP No.2 as per the terms and conditions of Joint Development Agreement, executed between OPs No.1&2. OP No.2 had then given different proposal to OP No.1 for revoking the said termination but the same had not materialized till date, as explained above.
26. From the above discussion, it transpires that the construction of flats, which was to be started from 30.12.2011 and was to be completed by 29.12.2014 was initially delayed due to the stay granted by the Hon’ble Punjab & Haryana High Court w.e.f. 29.7.2011 to 26.9.2013. Thereafter Joint Development Agreement between OPs no.1&2 was terminated vide letter dated 20.6.2011, Ex.OP13 by OP No.1.From above it transpires that notice for termination of agreement was issued to OP No.2 by OP No.1 on 20.6.2011 well before the date of receipt of application for construction of EWS flats on 30.12.2011.Further all the payments made by the complainant had been received by OP No.1 and are lying with OP No.1.
27.  A perusal of Joint Development Agreement,Ex.OP1/A, indicates that the development period for the project was 48 months from the effective date of starting as per clause 2.2.1.Further in the event of any delay which was attributable to OP No.1, the same was to be extended as per clause 2.2.2. Further as per clause 3.4(f) of the agreement,  “Instead of terminating this Agreement as provided in this Article 3.4, the Parties may by mutual agreement extend the time for fulfilling the Conditions Precedent and the term of this Agreement; provided that any extension of time in case of the Developer’s failure to fulfill its Condition Precedent shall  be subject to imposition of damages linked to delay on the Developer as determined by the Independent Technical cum Quality Control Consultant, unless the same has been occasioned by default or delay on part of PDA.”
28. A perusal of the termination notice, Ex.OP13 reveals that the notice for termination was of 20.6.2011 whereas the effective date of handing over the site was 9.8.2007 and as such the notice had been issued before the completion of 48 months i.e. 8.8.2011. Further as per the said notice 80.61% of the development works had already been completed by OP No.2 as on 30.4.2011 and as per the report of Independent Quality Control Consultant, although there was a provision for imposition of damages linked to delay in the development of the project, yet notice of termination was issued by OPs No.1&2 in the first instance.
29. As such in view of the stay granted by the Hon’ble Punjab & Haryana High Court w.e.f. 29.7.2011 to 26.9.2013 and termination of agreement on 20.6.2011 which is still continuing, OP No.2 was no way free to construct and develop the flats in question within 36 months from 30.12.2011 onwards as per the condition of the allotment letter. It is also surprising to note that although the Joint Development Agreement (JDA) was declared null and void by OP No.1 even then they continued to collect payments interms of installments and enhancement from the complainant from time to time. As such, OP No.1 is fully responsible for not making any alternative arrangements due to cancellation of Joint Development Agreement and for not developing/constructing the flats on their own or through any other agency and are fully liable for the delay caused in this regard. Thus, the argument of OP No.1 that all development/construction work was to be done by OP No.2 does not extend any help to the case of the OP.
30. OP No.1 during arguments had stated that they are ready to refund the amount deposited by the complainant after making necessary deductions as per the rules of PDA. We are of the opinion that the delay in the delivery of the possession of the flats is entirely on the part of OP No.1 and there appears to be no immediate situation which indicates that the possession of the flats will be offered in near future. The complainant has suffered harassment from the OPs due to non possession of the flats for a long period of 10 years from the date for which delivery was to be given within three years although all the installments have been paid by the complainant.
31. Consequently, we partly allow the complaint and direct OP No.1 to release the deposited amount of the complainant alongwith normal lending rate of interest being charged by the banks + 5% per annum interest for the delayed possession of the flats (which is being charged, as per the policy of OP No.1 for recovery of delayed payments) as per para No.5 of the allotment letter, till realization. OP No.1 is further directed to pay Rs.20,000/-as compensation for causing mental agony and harassment to the complainant alongwith Rs.5000/-as costs of litigation expenses. Compliance of the said order be made by OP No.1 within 30 days from the date of receipt of certified copy of this order.
32.  The instant complaint could not be disposed of within stipulated period due to Covid protocol and for want of Quorum from long time.
85109252238716.  
85109252238717.  

                                              G.S.Nagi                           S.K.AGGARWAL

                                              Member                          President