State Consumer Disputes Redressal Commission
Punjab Urban Planning And Development ... vs Jiya Lal Bansal on 10 November, 2023
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
1) First Appeal No.318 of 2023
Date of institution : 12.05.2023
Reserved On : 25.10.2023
Date of decision : 10.11.2023
Punjab Urban Planning and Development Authority (Now Bathinda
Development Authority), PUDA Complex, Bhagu Road, Bathinda,
Punjab, through its Estate Officer.
....Appellant/OP
Versus
Jiya Lal Bansal S/o Sh. Ram Chander, R/o House No.948, Sector-7,
Tehsil and District Panchkula, Haryana.
....Respondent/Complainant
First Appeal under Section 41 of the
Consumer Protection Act, 2019 against the
order dated 07.12.2022 passed by the
District Consumer Disputes Redressal
Commission, Mansa.
2) First Appeal No.323 of 2023
Date of institution : 11.05.2023
Reserved On : 25.10.2023
Date of decision : 10.11.2023
Punjab Urban Planning and Development Authority (Now Bathinda
Development Authority), PUDA Complex, Bhagu Road, Bathinda,
Punjab, through its Estate Officer.
....Appellant/OP
Versus
Vijender Goyal s/o Raj Kumar Goyal, Resident of House No.755/5,
Mohalla Dehra Sahib, Manimajra, Chandigarh.
....Respondent/Complainant
First Appeal under Section 41 of the
Consumer Protection Act, 2019 against the
order dated 24.11.2022 passed by the
District Consumer Disputes Redressal
Commission, Mansa.
First Appeal No.318 of 2023 2
3) First Appeal No.322 of 2023
Date of institution : 12.05.2023
Reserved On : 25.10.2023
Date of decision : 10.11.2023
Punjab Urban Planning and Development Authority (Now Bathinda
Development Authority), PUDA Complex, Bhagu Road, Bathinda,
Punjab, through its Estate Officer.
....Appellant/OP
Versus
Raj Kumar S/o Gopal Krishan, R/o Anand Colony, near Modgill Play-
way School, Samana, District Patiala.
....Respondent/Complainant
First Appeal under Section 41 of the
Consumer Protection Act, 2019 against the
order dated 29.11.2022 passed by the
District Consumer Disputes Redressal
Commission, Mansa.
4) First Appeal No.324 of 2023
Date of institution : 11.05.2023
Reserved On : 25.10.2023
Date of decision : 10.11.2023
Punjab Urban Planning and Development Authority (Now Bathinda
Development Authority), PUDA Complex, Bhagu Road, Bathinda,
Punjab, through its Estate Officer.
....Appellant/OP
Versus
Tarsem Chand Arora S/o Des Raj, R/o House No.10, Gali No.2,
Layout Court Colony, Sirsa, District Sirsa.
....Respondent/Complainant
First Appeal under Section 41 of the
Consumer Protection Act, 2019 against the
order dated 29.11.2022 passed by the
District Consumer Disputes Redressal
Commission, Mansa.
5) First Appeal No.325 of 2023
Date of institution : 12.05.2023
Reserved On : 25.10.2023
Date of decision : 10.11.2023
First Appeal No.318 of 2023 3
Punjab Urban Planning and Development Authority (Now Bathinda
Development Authority), PUDA Complex, Bhagu Road, Bathinda,
Punjab, through its Estate Officer.
....Appellant/OP
Versus
Pawan Kumar S/o B.N. Bhatia, R/o House No.410, Sector-20, HUDA,
Sirsa, District Sirsa, Haryana.
....Respondent/Complainant
First Appeal under Section 41 of the
Consumer Protection Act, 2019
against the order dated 24.11.2022
passed by the District Consumer
Disputes Redressal Commission,
Mansa.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Ms. Simarjot Kaur, Member
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Present:-
For the appellant : Sh. Pratyush Sood, Advocate for Ms. Swati Dayalan, Advocate For the respondent : Sh. Deepak Kansal, Advocate.
JUSTICE DAYA CHAUDHARY, PRESIDENT This order of ours shall dispose off total five First appeals i.e. First Appeal No.318 of 2023, First Appeal No.323 of 2023, First Appeal No.322 of 2023, First Appeal No.324 of 2023 and First Appeal No.325 of 2023, as similar questions of law and facts are involved therein and the same have been filed by the appellant/OP against the similar orders passed by the District Consumer Disputes First Appeal No.318 of 2023 4 Redressal Commission, Mansa (in short, "the District Commission").
However, the facts are being extracted from First Appeal No.318 of 2023.First Appeal No.318 of 2023
2. Appellant/OP i.e. Punjab Urban Planning and Development Authority has filed the present appeal under Section 41 of the Consumer Protection Act, 2019 against the order dated 07.12.2022 passed by the District Commission, Mansa, whereby the complaint filed by the respondent/complainant was partly allowed and the appellant/OP was directed to refund (if not already returned) the entire deposited amount of ₹2,25,000/- along with interest at the rate of 9% per annum from the date of transfer of the plot/LOI in the name of the complainant till the date of actual payment subject to return of the possession of the plot, if any, taken by the complainant from the OP. The OP was further directed to pay an amount of ₹3,000/- towards consolidated costs and compensation to the complainant.
3. It would be apposite to mention here that hereinafter the parties will be referred, as have been arrayed before the District Commission.
4. Briefly, the facts of the case as made out by the respondent/complainant in the complaint filed by him before the District Commission were that the appellant/OP had launched a scheme on 27.09.2012, whereby an offer was made to the general First Appeal No.318 of 2023 5 public to allot freehold residential plots at 'PUDA Enclave', Budladha by way of draw of lots. The applications were invited from the general public and 10% of total price of the plot was required to be deposited as earnest money. It was further mentioned that one Des Raj had applied for allotment of a plot measuring 150 sq.yds. under the said scheme and had paid an amount of ₹90,000/- to the OP as earnest money while moving the application No.2066. The draw of lots was held on 15.01.2013 at Budladha. Said Des Raj was declared successful in the draw of lots and the OP had issued the Letter of Intent (LoI) dated 26.02.2013 of plot of 150 sq.yds. As per the terms and conditions of the LoI, Sh. Des Raj had paid further an amount of ₹1,35,000/- to the OP in instalments. Thereafter, he had sold the said plot to the complainant and on completion of certain necessary formalities, the OP had transferred the plot in the name of the complainant vide letter dated 23.08.2013. Meaning thereby the complainant had stepped into the shoes of the original allottee and became the consumer of the OP. It was further mentioned that as per the terms and conditions of the allotment letter, the possession of the plot was to be handed over to the allottee on completion of development works at the site or within a period of 18 months from the date of issuance of the allotment letter, whichever was earlier. However, the OP had failed to deliver the valid possession of the plot within the stipulated period, as neither the development work was First Appeal No.318 of 2023 6 completed at the site nor the basic amenities like drinking water, sewerage/garbage collection system, external boundaries etc. were available. Further it was mentioned that originally the plot No.555 was allotted but the OP without giving any prior notice had unilaterally changed the said plot to plot No.236 vide letter dated 08.02.2018 (Ex.OP-4). The complainant and other allottees had requested the OP on a number of occasions to complete the development works and to hand over the possession of the plot or to refund the amount so deposited by them but still no action was taken.
5. Stating to be a case of 'deficiency in service' and 'unfair trade practice' on the OP, the complaint was filed with the prayer for issuance of directions to the OP to refund the amount paid by the complainant i.e. ₹2,25,000/- lac along with interest at the rate of 18% and also to pay compensation of ₹1 lac for causing mental agony and harassment to the complainant as well as ₹50,000/- towards litigation expenses.
6. Upon issuing notice, the OP appeared and filed the written reply, wherein certain preliminary objections were raised like the plot was purchased for commercial purpose and the complaint was liable to be dismissed for non-joinder and mis-joinder of parties and also that intricate questions of facts and law were there. It was further mentioned that there was an Arbitration Clause and the complaint was not maintainable. It was not a case of any 'deficiency in service' on First Appeal No.318 of 2023 7 the part of the OP. The other allegations as made in the complaint were denied and it was prayed that the complaint be dismissed.
7. By considering the contents of the complaint and reply thereof filed by the OP, the complaint was partly allowed by the District Commission vide impugned order dated 07.12.2022. The relevant portion of said order as mentioned in Para-9 is reproduced as under:
"9. Resultantly, the OP is directed to refund (if already has not returned) the entire deposited amount of Rs.2,25,000/- alongwith interest @ 9% P.A. from the date of transfer of the Plot/LOI in the name of the complainant till the date of actual payment subject to the return of the possession of plot, if any, taken by the complainant from OP. Further, the OP is directed to pay consolidated costs and compensation of Rs.3,000/- to the complainant for this forced litigation"
8. Said order dated 07.12.2022 has been challenged by the appellant/OP by way of filing the present appeal by raising a number of arguments.
9. There was a delay of 131 days in filing of the appeal. Misc. Application No.639 of 2023 was filed for condonation of delay, which was supported by an affidavit. Said application was allowed vide order dated 11.07.2023 and the delay in filing of the appeal was condoned but subject to costs of ₹5,000/- to be deposited in the Consumer Legal Aid Account of this Commission.
10. Mr. Pratyush Sood, proxy for Ms. Swati Dayalan, learned counsel for the appellant/OP has submitted that the contention of the respondent/complainant with regard to illegal change First Appeal No.318 of 2023 8 of number of the plot is wrong, as the re-allotment was done due to change in the plan of the whole scheme for the betterment of the allottees to ensure proper water supply. The complainant was also informed regarding change of number of plot and a public notice was published in the Newspaper prior to change of the plots. Learned counsel has further submitted that the total price of the plot was ₹9 lac and only part payment of ₹2,25,000/- was made and that too by the original allottee. The complainant had not paid any further instalment to the OP and as such the plot was liable to be resumed and the amount so deposited was to be forfeited as per the provisions of Section 45(3) of the Punjab Regional and Town Planning and Development Act, 1995 (in short, 'Act of 1995'). Learned counsel has further submitted that special camps were organized on various dates in the month of February, 2019 to facilitate the delivery of the possession of the plots but the complainant himself had not turned up to take the possession and on the expiry of the stipulated period it was deemed that the possession was taken by him. Learned counsel has also submitted that the plot was allotted on 'As is where is basis' and there was no delay in handing over the possession as it was offered within the stipulated period as per the terms and conditions of the allotment letter. All the developments works were completed and the basic amenities were also provided at the site much before the offering/delivering of the possession. Most of the allottees had not got First Appeal No.318 of 2023 9 their building plans approved and also had not applied even for grant of water or electricity connection. There was no provision for refund of the amount with interest. Learned counsel has further submitted that as per the terms and conditions as mentioned in the allotment letter, the allottee was not entitled to claim damages in case there was delay in the implementation of the Scheme. There was no 'deficiency in service' on the part of the OP and the impugned order is liable to be set aside.
11. Mr. Deepak Kansal, learned counsel for the respondent/complainant has submitted that the OP had failed to complete the development works at the site and deliver possession of the plot within the stipulated period as per the terms and conditions of the allotment letter. The possession of the plot was to be delivered on receiving 25% of the price of the plot within a period of 18 months from the date of issuance of the allotment letter or on completion of development works at the site, whichever was earlier. Learned counsel has further submitted that the OP had unilaterally changed the location and number of the plot earlier allotted to him vide letter dated 08.02.2018 and the allotment of new plot was contrary to the terms and conditions of the allotment letter. However, no individual notice was given to the complainant before changing location/number of the earlier plot allotted to him. At the end, learned counsel has further submitted that due to default on the part of the OP, the complainant is First Appeal No.318 of 2023 10 entitled to refund of the entire amount as deposited by him, along with the interest and the compensation. The appeal is liable to be dismissed. Learned counsel for the respondent/complainant has relied upon the following orders/judgments in support of his contentions:
i) Pioneer Urban Land & Infrastructure Ltd. v. Govindan Raghvan 2019 (2) CPJ 34 (SC);
ii) DLF Home Developers Ltd. v. Capital Greens Flat Buyers Association CA-3864-3889 of 2020 decided vide order dated 14.12.2020 (SC);
iii) Bathinda Development Authority (PUDA) v. Gurdas Singh RP No.11 of 2016 decided vide order dated 17.12.2019 (NC);
iv) Dwarkadhish Projects Pvt. Ltd. v. Sushila Kataria RP No.3558 of 2011 decided vide order dated 27.03.2012 (NC);
vi) Sangeeta Aggarwal v. M/s Chitels India Pvt. Ltd. CC-2562 of 2018 decided vide order dated 27.05.2022 (NC);
vii) Jagpreet Singh Sarai v. Ansal Properties & Infrastructure Ltd. & Ors. CC No.72 of 2017 decided vide order dated 04.01.2017 (State Commission, U.T., Chandigarh).
12. We have heard the arguments raised by learned counsel for the parties. We have also carefully perused the impugned order passed by the District Commission, written arguments submitted on behalf of both the parties and all the relevant documents available on the file.
13. Facts regarding filing of the complaint by the complainant before the District Commission, reply thereto filed by the appellant/OP, partly allowing of said complaint and thereafter filing of the present appeal by the appellant/OP before this Commission are not in dispute. First Appeal No.318 of 2023 11
14. It is relevant to mention that the issue involved in the present appeal is squarely covered by the earlier order dated 13.07.2022 passed by this Commission in First Appeal No.410 of 2021 (Punjab Urban Planning and Development Authority v. Ajaib Singh), whereby the bunch of 93 similar cases was decided by the common order. In the said cases also, same project of the OP was there. So, to decide the present appeals, the observations made by this Commission in the aforesaid case are necessary. The relevant portion of said order as passed in the case of Ajaib Singh & Ors (supra) is reproduced as under:
"15. As far as the other objection of the appellant/opposite party as raised in its reply regarding limitation is concerned, admittedly the complainant paid the substantial amount towards the price of the plot, in question, to the opposite party but neither the legal and actual possession of the plot with complete development/infrastructure has been delivered to him till date nor the amount so deposited by him has been refunded.
16. It is now well settled that in such cases there is a continuous cause of action till the possession is delivered or the amount is refunded. Hon'ble National Commission in the case of "Navin Sharma (Dr.) & others v. Unitech Reliable Projects Pvt. Ltd. & Anr." 2016(2) CLT 457 has held that unless or until the complainants get possession of the flats, they have got continuous cause of action. Para 8 of the said judgment is reproduced as under:-
"8. The first submission made by the counsel for the opposite party was that the case is barred by time. This argument was raised merely for the sake of cavil. It is now well settled that unless or until the complainants get the possession of the flats, they have got continuous cause of action. This view finds support from this authority reported in "Raghava Estates Ltd. v. Vishnupuram Colony Welfare Association" Special Leave to Appeal (Civil) No.35805 of 2012, decided on 07.12.2012."
17. In another case Satish Kumar Pandey & Anr. v. M/s Unitech Ltd. 2015 (3) CPJ 440 (NC), the Hon'ble National Commission has held in Para-17 as follows:
"17. It was next contended by the learned counsel for the respondent that since the last date stipulated in the buyers agreement for giving possession of the flat to them expired more than two years ago, the complaint is barred by limitation prescribed in Section 24A of the Consumer Protection Act. It is First Appeal No.318 of 2023 12 now settled legal proposition that failure to deliver possession being a continuous wrong it constitutes a recurrent cause of action and, therefore, so long as the possession is not delivered to him the buyers can always approach a Consumer Forum. It is only when the seller flatly refuses to give possession that the period of limitation prescribed in Section 24A of the Consumer Protection Act would begin to run. In that case, the complaint has to be filed within two years from the date on which the seller refuses to deliver possession of the flats to the complainants at any point of time and, therefore, the cause of action continues to subsist in favour of the complainants. Reliance in this regard may be placed upon the decision of the Hon'ble Supreme Court in Meerut Development Authority v. M.K. Gupta IV (2012) CPJ 12, where the Hon'ble Supreme Court held that in such a case the buyer has a recurrent cause for filing a complaint for non- delivery of possession of the plot."
18. In the present case also, there is no denial on the part of the opposite party to deliver the possession. Since neither the actual and legal possession with complete development/infrastructure has been delivered nor the amount deposited by the complainant has been refunded till date, so in view of the ratio of the law laid down in the above noted authorities, it is a continuous cause of action and the complaint filed by the complainant is within limitation.
19. The other objection of the appellant/opposite party is that as per Arbitration Clause in the allotment letter, the matter between the parties is liable to be resolved only through arbitration. It is relevant to mention here that the Larger Bench of the Hon'ble National Commission vide order dated 13.07.2017 passed in Consumer Complaint No.701 of 2015 titled as Aftab Singh v. EMAAR MGF Land Limited & Anr., has held that an Arbitration Clause in the afore-stated kind of Agreements between the complainant(s) and the Builder cannot circumscribe the jurisdiction of a Consumer Fora/Commission notwithstanding the amendments made to Section 8 of the Arbitration Act, 1996. The Civil Appeal No.(s) 23512-23513 of 2017 (M/s EMAAR MGF Land Limited & Anr. Vs. Aftab Singh) filed against the said order of the Hon'ble National Commission has also been dismissed by the Apex Court, vide order dated 13.02.2018. Even the Review Petition (C) Nos. 2629-2630 of 2018 in Civil Appeal Nos. 23512-23513 of 2017 filed against the above said order dated 13.02.2018 has also been dismissed by the Hon'ble Supreme Court, vide order dated 10.12.2018. Therefore, the existence of an Arbitration Clause in the allotment letter is not a bar to resolve the dispute involved in this appeal by this Commission.
20. Further objection of the appellant/opposite party that complicated question of facts and laws are involved in the case is also not acceptable, as it is a simple dispute of allotment of the plot and non-delivery of possession thereof and it can easily be decided on the basis of evidence available on the record, for which no detailed evidence is required.
21. Now, coming to merits of the case, admittedly the complainant applied for allotment of a plot in the aforesaid Scheme launched by the opposite party. The complainant was declared successful in the draw of lots held on 15.01.2013. Thereafter, the First Appeal No.318 of 2023 13 Letter of Intent (LoI) (Ex.C-1) was issued to the complainant on 26.02.2013, wherein the tentative price of the plot was mentioned as ₹18 lac. Thereafter, allotment letter dated 08.09.2016 (Ex.C-3) was issued after a long delay of more than 3 and a half years from the date of issuance of the LoI, whereby the complainant was allotted plot No.997 measuring 300 sq.yds. in 'PUDA Enclave' Sugar Mill Site, Budhlada Urban Estate, Bathinda. The complainant deposited a total sum of ₹17,35,000/- towards the price of the plot vide receipt dated 07.11.2016 (Ex.C-4) and as per Clause-1(I) of the allotment letter (Ex.C-3). Various terms and conditions as well as payment schedule were incorporated in the allotment letter. As per Clause 4(I) of the allotment letter, the possession of the plot was to be delivered on completion of development works at the site or 18 months from the date of issuance of the allotment letter, whichever was earlier. Clause 4(I) of the allotment letter is reproduced as under:
"The possession of the said plot shall be handed over to the allottee after the completion of the development works at the site or 18 months from the date of issuance of the allotment letter whichever is earlier. If possession is not taken by the allottee within stipulated period, it shall be deemed to have been handed over on the expiry of said date."
22. The appellant/opposite party has raised certain objections in the reply filed before the District Commission as well as in the arguments that offer of possession of changed plot was given to the complainant vide letter dated 08.02.2018 (Ex.C-5) within the stipulated period.
23. On perusal of above said letter, it is evident that the opposite party changed the location and number of the plot earlier allotted to the complainant and allotted new plot No.702 but with the same terms and conditions as of earlier allotment letter. It is also mentioned in said letter that due to technical reasons and for betterment, the draw of lots was again held on 17.01.2018 and as per re-planning, the plot No.702 was allotted to the complainant. However, it has not been disclosed as to what technical reasons forced the opposite party to change the number and location of the plot. Furthermore, no notice was given to the complainant individually nor his consent was obtained before conducting the 2nd draw on 17.01.2018. Although, the opposite party has produced a copy of notice published in the newspaper and details of mobile numbers on which they allegedly sent messages regarding change of plot, but a written notice was required to be issued to the complainant/allottee individually before effecting any change in the number or location of the plot, so that the allottee could have made up his/her mind for such a situation. Therefore, the re-allotment of the plot was done in the absence of the complainant, which is wrong, illegal and against the terms of LoI/allotment letter.
24. The appellant/opposite party has produced on record the copies of photographs [Ex.OP-1 (colly.)] before the District Commission and alleged that all the development works/activities were completed at the site. The opposite party has also alleged that the possession of changed plot was offered already delivered to the complainant vide letter dated 08.02.2018. However, no evidence showing receipt of actual, physical and legal possession of the plot First Appeal No.318 of 2023 14 has been produced by the opposite party on record. Even on perusal of letter dated 11.04.2019 (Ex.C-6) which has been issued by Sub Divisional Engineer, PUDA, Bathinda, it is clear that the provision of raw water at the site of the project in question was not made/available for want of requisite approvals. Further, on perusal of letter dated 21.02.2019 (Ex.C-7) issued by Divisional Engineer, BDA, Bathinda, it is evident that that the work of boundary wall of the project is still pending towards Budhlada side due to dispute with the farmers. Perusal of letter dated 09.10.2019 produced during the course of arguments shows that the complete development works were not completed. It is further mentioned in the said letter that since the project has not been completed in all respects, so the penal interest to be charged from the allottees was waived of.
25. From perusal of above said evidence, it is clear that the project in question was not complete in all respects up to 09.10.2019. Even otherwise also, Section 14 of Punjab Apartment and Property Regulation Act, 1995 (in short, "PAPRA") deals with responsibility of the builder/promoter to obtain Completion from the competent Authority. The same is reproduced as under:
14. It is the responsibility of the promoter-
(i) in the case of apartments, to obtain from the authority required to do so under any law completion and occupation certificates for the building and if a promoter, within a reasonable time, after the construction of the building, does not apply for an occupation certificate from the aforesaid authority, the allottee of an apartment may apply for an occupation certificate from the said authority; and
(ii) in the case of a colony, to obtain completion certificate from the competent authority to the effect that the development works have been completed in all aspects as per terms and conditions of the licence granted to him under section 5.
(2) The authority referred to in sub-section (1) shall, after satisfying itself about the agreement of sale between the promoter and the allottee, and the compliance of the building regulations and all other formalities, issue an occupation certificate."
26. Clause 3.12 (i) of the Notification dated 07th July, 2015 published in the Punjab Government Gazette Extraordinary by Department of Local Government (Town Planning Wing) is also applicable to the properties falling within the Municipal Limits. The same is reproduced as under:
"No person shall occupy or allow other person to occupy any new building or part of a new building for any purpose whatsoever until such building or part thereof has been certified by the local authority or of any person authorized by it in this behalf to be in every respect completed according to the sanctioned plan and fit for the use for which it is erected."
27. Further, Section 272 of The Punjab Municipal Corporation Act, 1976 is also relevant in this context, which reads as under:-
"272. Completion Certificate. -
(1) Every person who employs a licensed architect or engineer or a person approved by the Commissioner to design or erect a building or execute any work shall, within one month after the completion of the erection of the building or execution of the work, deliver or send or First Appeal No.318 of 2023 15 cause to be delivered or sent to the Commissioner a notice in writing of such completion accompanied by a certificate in the form prescribed by byelaws, made in this behalf and shall give to the Commissioner all necessary facilities for the inspection of such building or work. (2) No person shall occupy or permit to be occupied any such building or use or permit to be used any building or a part thereof effected by any such work until permission has been granted by the Commissioner in this behalf in accordance with bye-laws made under this Act:
Provided that if the Commissioner fails within a period of thirty days after the receipt of the notice of completion to communicate his refusal in grant such permission, shall be deemed to have been granted."
28. The Hon'ble National Commission in First Appeal No.855 of 2018 (Vision India Realtors Pvt. Ltd. & Anr. v. Sanjeev Malhotra) decided on 13.06.2018 has categorically held that the legal possession cannot be delivered in the absence of Completion Certificate issued by the Competent Authority. Relevant portion of said order as mentioned in Para No.5 is reproduced as under:
5. During the course of hearing, it was submitted by the learned counsel for the appellant that the completion certificate in respect of the project was obtained by the appellant on 15.03.2016. A copy of the communication dated 15.03.2016 from Municipal Council, Kharar has been placed on record. It is therefore, evident that the completion certificate having been received only on 15.03.2016, the appellant could not have offered legal possession of the apartment to the complainant at any time before that date.
As noted earlier, the amount of Rs.1,81,375/- was demanded on 20.04.2015 and the amount of Rs.2,12,489/- was demanded on 06.02.2016. The complainant was requested to pay the aforesaid amount so that the appellant could offer the possession of the flat. The said offer of possession was meaningless being unlawful as the requisite completion certificate had not been obtained by that date......."
29. Further the Hon'ble National Commission in the case of "Suman Kumar Jha & another Vs. Mantri Technology Constellations Pvt. Ltd." CC No.54/2018, decided on 29.10.2021, has held that the offering of possession of incomplete construction/unit/plot without obtaining Completion Certificate amounts to 'unfair trade practice'.
30. In view of the law laid down by the Hon'ble Supreme Court and Hon'ble National Commission, it is clear that in absence of Completion Certificate issued by the competent authority, the alleged offer of possession and that too of changed plot was just a paper transaction and nothing more than that. The copies of photographs, Ex.OP-1 (colly.), which were produced by the opposite party before the District Commission, are also of no help to them in absence of Completion/Occupation Certificates. Since there was no development at the site, so the complainant cannot also not be blamed for withholding payment of further instalments.
31. It is also relevant to refer the "Objects and Functions"
given under Section 28 of the Punjab Regional and Town Planning & Development Act, 1995; which are reproduced as under:
28. Objects and Functions of the Authority:-
(1) The objects of the Authority shall be to promote and secure better planning and development of any area of the State and for that purpose the Authority shall have the powers to acquire by way of purchase, transfer, ex-
change or gift or to hold, manage, plan, develop and mortgage or otherwise First Appeal No.318 of 2023 16 dispose of land or other property or to carry out itself or in collaboration with any other agency or through any other agency on its behalf, building, engineering, mining and other operations to execute work in connection with supply of water, disposal of sewerage, control of pollution and other services and amenities and generally to do anything with the prior approval or on direction of the State Government, for carrying out the purposes of this Act. (2) In particular and without prejudice to the generality of the foregoing provisions, the Authority itself or in collaboration with any other agency or through any other agency on its behalf,-
(i) if so required by the State Government or the Board, take up the works in connection with the preparation and implementation of Regional Plans, Master Plans and New Township Plans and town improvement schemes;
(ii) undertake the work relating to the amenities and services to be provided in the urban areas, urban estates, promotion of urban development as well as construction of houses;
(iii) promote research, development of new techniques of planning, land development and house construction and manufacture of building material;
(iv) promote companies, association and other bodies for carrying out the purposes of the Act ; and
(v) perform any other function which are supplemental, incidental or consequential to any of the functions referred to in this sub-section or which may be prescribed."
32. On perusal of the "Objects and Functions" as reproduced above, it is clear that Punjab Urban Planning and Development Authority (PUDA) has been floating Schemes for setting up developed colonies for general public in various cities in Punjab. Before undertaking such a Scheme, PUDA is required to prepare a proper Scheme, in accordance with the provisions of the Punjab Regional and Town Planning & Development Act, 1995. All the financial implications and other things should have been taken care by PUDA while launching the said scheme. After considering the pros and cons, the Scheme is required to be launched by the development authority being a public authority. By considering/seeing all the terms and conditions of the Scheme, the complainant had applied for allotment of a plot. However, the opposite party has failed to develop the plot allotted to him and even changed the said plot with new plot, without issuing any notice to him. The opposite party has also failed to complete the development works within the agreed period and without any sufficient reason. This act of the opposite party has caused mental agony and harassment to the complainant.
33. It is also relevant to mention that the Hon'ble Punjab and Haryana High in the case of Ram Kishan (supra) has issued strict directions to the States of Punjab and Haryana for launching the Scheme without proper guidelines and for not completing the same as per the time schedule. The relevant portion of said judgment as mentioned in Para-9 is reproduced as under:
"9. Before parting with the order, it is observed that this court is flooded with huge litigation of such like disputes, where allotments of plots/booth sites, commercial sites, have been made by the respective Governments of the States of Punjab and Haryana, including their Corporations; government undertakings, like HUDA and PUDA, without completing the development works and providing all basic amenities and facilities. Such action of the Government is not only a disadvantage to the Government itself, but also to the public at large, who has to indulge in litigation and spend valuable time First Appeal No.318 of 2023 17 of their lives, hard earned money and energy in the courts for years. The time has now come that such type of actions of the Government to allot sites without making the same litigation free and without completing the development works and providing all basic amenities and facilities, have to be curbed down, because such actions lead to multifarious litigation wasting precious time and energy of the court, which can be utilised in disposal of some genuine litigation. Such casual approach of the concerned officers has to be dealt with severely. Therefore, Chief Secretaries of the States of Punjab and Haryana as well as Adviser to Administrator, Union Territory, Chandigarh, are hereby directed to ensure that no government site or site through any government agency shall be offered by way of allotment, auction or otherwise, until and unless the same is completely litigation free, i.e. without any encumbrance etc., and is fully developed, provided with all basic amenities. Moreover, all the allottees have to be treated on parity without any discrimination, because every citizen of this country before Government functionaries is equal before it."
34. In compliance of the aforesaid order passed by the Hon'ble Punjab and Haryana High Court, a meeting was held on 02.01.2017, in which Chief Secretary, Government of Punjab; Addl. Chief Secretary, Government of Punjab; Chief Administrator, PUDA, SAS Nagar; Addl. Secretary, Local Govt. Department, Punjab; and General Manager, Estate, Punjab Mandi Board were present. After consideration, the following decisions were taken:
"After consideration, it has been decided to frame policy according to the directions issued by the Punjab and Haryana High Court. As under, following policy will be applicable to all the departments i.e. Local Govt., Punjab Mandi Board, PUDA and all other Special Authorities, PSIEC, Colonization Department and other agencies where the lands are being sold after planning:
1. Chunk Site: Chunk site will be sold on "as is where is" basis". The Authority/Department making this sale will have to ensure that proper connectivity or availability of basic amenities i.e. water supply, sewerage, roads, parking etc. are available. In case such provision has to be made entirely by the purchaser, it must be mentioned specifically at the time of sale.
2. Sale by Auction of Booth, SCO, SCF and other commercial sites, where development is to be done by the auctioning authority:- in such cases the auctioning authority will ensure that no site should be put to auction until and unless all the basic amenities i.e. water supply, sewerage, roads, parking & provision of proper Electronic connection is made available at site.
3. In case the site to be sold through draw of lots of the inviting application from public, the following policy must be followed:-
(i) Application must be invited only when the land is free from all encumbrances.
(ii) After the receipt of application with 10% of the sale price, the draw of lots will be held by the Authority/Deptt. In such cases after payment of 25% of the condition price, the LoI/Allotment letter will be issued to the successful applicant and no interest must be charged till the possession of that plot is given to the Allottee.
(iii) No possession in such cases must be given to allottee until and unless all the basic amenities i.e. water supply, sewerage, Roads, parking etc. wherever required is made.
(vi) The department Authority will duty bound to complete all the development works at site in shortest period possible not extending more First Appeal No.318 of 2023 18 than 18 months. In case of 18 months is elapsed and the possession in not handed over to the allottees, simple interest which of 12% will be provided to the allottee on the 25% amount which has been deposited by the Allottee with the Authority/Deptt.
All the conditions will be mentioned in the Brochure. As mentioned above it has been decided that Hon'ble Punjab and Haryana High Court be informed about the above said terms and conditions and further necessary action be taken to notify this policy according to the direction issued by the Punjab and Haryana High Court."
35. From the above, it is apparent that the issue of launching plot/house allotment schemes by the Urban Development Authorities without preparing the proper guidelines and without completing the development activities had already been dealt with by the Hon'ble High Court and aforesaid decisions were taken to minimize the litigation in such like cases.
36. It is also relevant to mention here that in Consumer Complaint No.420 of 2018 (Usha Rani v. Punjab Urban Planning & Development Authority & Anr.) decided by this Commission vide order dated 11.09.2018, same project of the opposite party was involved. The relevant portion of said judgment as mentioned in Para No.12 is reproduced as under:
"To prove that the non-completion of development works at the site of the opposite parties, the complainant engaged Er. H.G. Ahuluwalia, B.Sc. (Engg.) Civil to visit the spot and to report regarding the development at the site. He visited the site on 04.05.2018 and after thorough inspection submitted his detailed report dated 18.05.2018, Ex.C/8, to the effect that the site of PUDA Enclave (Sugar Mill), Budhlada, District Mansa as on 04.05.2018 was not complete, the basic amenities were also not provided and the ancillary amenities did not exist at the site; as a result of which the site was not habitable.
................................................................... Perusal of above said report of the Civil Engineer proves that the developments works, as detailed therein, have not been completed in the project of the opposite parties and the site is not habitable. At the end of report, it has been opined that till the above said defects and shortcomings are not removed in their entirety, the entire colony is not fit for human habitation and any offer of possession made prior to the removal and rectification of the above said defects is a mere sham. To prove the above said shortcomings and defects in the colony of the opposite parties, as reported in the above said report, the Civil Engineer also produced photographs of the site, his affidavit dated 18.05.2018 as well as his qualifications."
37. In view of the facts and circumstances as mentioned above, it is clear that the appellant/opposite party had failed to deliver possession of the plot with complete infrastructure and basic and agreed amenities as per the terms and conditions of the Scheme. The act and conduct of the opposite party amounts to 'deficiency in service'.
38. As far as the plea of the opposite party that the plot was allotted on 'as is where is basis' is concerned, it is relevant to mention that as per Clause-4(I) of the allotment letter clearly shows that the possession of the plot was to be delivered after First Appeal No.318 of 2023 19 completion of development works at the site or 18 months from the date of issuance of the allotment letter, whichever is earlier. Since the allotment letter itself says about completion of development works, so it cannot be said that the plot was allotted on 'as is where is basis'.
39. Since the actual, physical and legal possession of the plot was not delivered within the stipulated period as per terms and conditions of the allotment letter, so the complainant is entitled to refund of the amount deposited by him along with interest, compensation and costs, as awarded by the District Commission.
40. The District Commission while passing the impugned order has directed the appellant/opposite party to refund the amount so deposited by the complainant along with interest at the rate of interest 9% besides compensation and costs. Learned counsel for the respondent/complainant has relied upon the judgment passed by the Hon'ble National Commission in the case of Gurdas Singh (supra), wherein the interest at the rate of 12% was held to be justified. On the other hand, learned counsel for the appellant/opposite party has relied upon the judgment of the Hon'ble National Commission in the case of Manju Chauhan (supra) and submitted that the rate of interest in the said case was reduced from 12% to 6%. However, in the other authority relied upon by learned counsel for the appellant/opposite party in the case of M/s Laureate Buildwell Pvt. Ltd. (supra), the rate of interest i.e. 9% per annum has been held to be justified.
41. In view of the facts and circumstances, we find that the interest at the rate of 9% as awarded by the District Commission is reasonable and justified. Accordingly, we find no reason to interfere with the said direction passed by the District Commission in F.A. No.410 of 2021.
42. In the appeals, wherein the complainants are the original allottees and the deposited amount has been ordered to be refunded with interest at the rate of 9% per annum with compensation/costs or interest at the rate of 9% per annum has been awarded on the refunded amounts with compensation/costs, are liable to be dismissed and the impugned orders passed in such cases, as detailed below, are liable to be upheld. .............................
45. In some of the appeals, the complainants are subsequent allottees. The Hon'ble Supreme Court in the case of M/s Laureate Buildwell Pvt. Ltd. (supra), has held that in case of subsequent allottee/purchaser, the interest on the refundable amount is to be awarded from the date when the builder acquired knowledge of transfer or acknowledged the transfer. Relevant portion of said judgment as mentioned in Paras-31 & 32 is reproduced as under:
"31. In view of these considerations, this court is of the opinion that the per se bar to the relief of interest on refund, enunciated by the decision in Raje Ram (supra) which was applied in Wg. Commander Arifur Rehman (supra) cannot be considered good law. The nature and extent of relief, to which a First Appeal No.318 of 2023 20 subsequent purchaser can be entitled to, would be fact dependent. However, it cannot be said that a subsequent purchaser who steps into the shoes of an original allottee of a housing project in which the builder has not honoured its commitment to deliver the flat within a stipulated time, cannot expect any - even reasonable time, for the performance of the builder's obligation. Such a conclusion would be arbitrary, given that there may be a large number- possibly thousands of flat buyers, waiting for their promised flats or residences; they surely would be entitled to all reliefs under the Act. In such case, a purchaser who no doubt enters the picture later surely belongs to the same class. Further, the purchaser agrees to buy the flat with a reasonable expectation that delivery of possession would be in accordance within the bounds of the delayed timeline that he has knowledge of, at the time of purchase of the flat. Therefore, in the event the purchaser claims refund, on an assessment that he too can (like the original allottee) no longer wait, and face intolerable burdens, the equities would have to be moulded. It would no doubt be fair to assume that the purchaser had knowledge of the delay. However, to attribute knowledge that such delay would continue indefinitely, based on an a priori assumption, would not be justified. The equities, in the opinion of this court, can properly be moulded by directing refund of the principal amounts, with interest @ 9% per annum from the date the builder acquired knowledge of the transfer, or acknowledged it.
32. In the present case, there is material on the record suggestive of the circumstance that even as on the date of presentation of the present appeal, the occupancy certificate was not forthcoming. In these circumstances, given that the purchaser/respondent had stepped into the shoes of the original allottee, and intimated Laureate about this fact in April 2016, the interests of justice demand that interest at least from that date should be granted, in favour of the respondent. The directions of the NCDRC are accordingly modified in the above terms.
46. In view of the law laid down by the Hon'ble Supreme Court in the above said case, in the cases of subsequent allottees the interest on the refundable amount is to be paid from the date when the opposite party acquired knowledge of transfer or acknowledged the transfer/allotment in favour of subsequent allottee. Meaning thereby the interest shall be paid from the date of transfer of plot/LoI etc. in favour of the subsequent allottees/complainants. In such cases, the appeals filed by the opposite party-PUDA are liable to be partly allowed and the impugned orders are liable to be modified.
.......................................................................................... ..........................................................................................
50. In most of the cases covered by this order, the initially allotted plots were changed with some other plot numbers. The transfer of plot/allotment/LoI may be prior to the date of issuance of allotment letters or LoI. Therefore, the interest shall be payable from the date of transfer of initial booking/LoI/plot etc.
51. In some of the cases, an objection has been raised by the opposite party that the District Commission had no jurisdiction to entertain and decide the complaints, on the ground that as per Section 174 of the Punjab Regional and Town Planning and Development Act, 1995, the orders passed by the State Government of the Competent Authority have become final and the same are not to be questioned in any suit or other legal proceedings. This plea of the opposite party has been dealt with by the District Commission in First Appeal No.318 of 2023 21 the impugned order in most of the cases. Even otherwise, as per Section 3 of the Consumer Protection Act, 1986 (now Section 100 of the Consumer Protection Act, 2019), the provisions of the Act are in addition to and not in derogation of the provisions of any other law for the time being in force. Therefore, the District Commission had the jurisdiction to entertain and try such like cases."
15. In First Appeal No.318 of 2023 also, the respondent/complainant was the subsequent allottee of the plot, as mentioned above. The appellant/OP had failed to complete the development works and to deliver the possession of the plot to the complainant within the stipulated period. The District Commission has partly allowed the complaint vide the impugned order dated 07.12.2022 by directing the OP to refund (if not already returned) the entire deposited amount of ₹2,25,000/- along with the interest at the rate of 9% per annum from the date of transfer of the plot/LOI in the name of the complainant till the date of actual payment subject to hand over the possession of the plot, if any, taken by the complainant from the OP. The OP was further directed to pay an amount of ₹3,000/- towards consolidated costs and compensation to the complainant.
16. Similarly, in First Appeal No.323 of 2023, the complainant was the subsequent allottee and had purchased the plot from one Kuldeep Singh and said plot was transferred in the name of the complainant vide letter dated 11.04.2014 as is evident from Para-2 of the complaint. Later on, the plot allotted to the complainant was changed with some other plot without issuing any notice to him individually. The OP had failed to deliver the possession of the plot First Appeal No.318 of 2023 22 complete in all respects to the complainant within the stipulated period. The complainant had sought the refund of the deposited amount along with interest. The appellant/OP had contested the complaint by filing reply thereto on the similar grounds as mentioned in First Appeal No.318 of 2023.
17. The complaint filed by the respondent/complainant was partly allowed by the District Commission vide order dated 24.11.2022 by directing the OP to refund (if not already returned) the entire deposited amount of ₹1,50,000/- along with interest at the rate of 9% per annum from the date of transfer of the plot/LOI in the name of the complainant till the date of actual payment subject to hand over of the possession of the plot, if any, taken by the complainant from the OP. The OP was further directed to pay an amount of ₹5,000/- towards consolidated costs and compensation to the complainant.
18. Similarly in First Appeal No.322 of 2023, the respondent/complainant was the original allottee of the plot in the Scheme launched by the appellant/OP as mentioned in the complaint, which was later on changed with some other plot without issuing any notice to the complainant individually. The OP had failed to deliver the possession of the plot complete in all respects to the complainant within the stipulated period. The complainant sought refund of the deposited amount along with interest etc. The appellant/OP had First Appeal No.318 of 2023 23 contested the complaint by filing reply thereto on the similar grounds as mentioned in First Appeal No.318 of 2023.
19. The complaint filed by the respondent/complainant was partly allowed by the District Commission vide impugned order dated 29.11.2022 by directing the OP to refund (if not already returned) the entire deposited amount of ₹4,50,000/- along with the interest at the rate of 9% per annum from the date of receipt of the amount from the complainant deposited at different intervals till the date of actual payment subject to hand over of the possession of the plot, if any, taken by the complainant from the OP. The OP was further directed to pay an amount of ₹3,000/- towards consolidated costs and compensation to the complainant.
20. Similarly in First Appeal No.324 of 2023, the respondent/complainant was the original allottee of the plot in the Scheme launched by the appellant/OP as mentioned in the complaint, which was later on changed with some other plot without issuing any notice to the complainant individually. The OP had failed to deliver the possession of the plot complete in all respects to the complainant within the stipulated period. The complainant had sought the refund of the deposited amount along with interest etc. The OP had refunded an amount of ₹81,078/- to the complainant vide order dated 21.05.2018 after forfeiting an amount of ₹68,922/-. The appellant/OP had First Appeal No.318 of 2023 24 contested the complaint by filing reply thereto on the similar grounds as mentioned in First Appeal No.318 of 2023.
21. The complaint filed by the respondent/complainant was partly allowed by the District Commission vide impugned order dated 29.11.2022 by directing the OP to refund (if not already returned) the entire deposited amount of ₹ 68,922/- (₹1,50,000/- minus ₹81,078=₹68,922/-) along with interest at the rate of 9% per annum from the date of receipt of the amounts from the complainant at different intervals till the date of actual payment subject to return of the possession of the plot, if any, taken by the complainant from the OP. The OP was further directed to pay an amount of ₹5,000/- towards consolidated costs and compensation to the complainant.
22. Similarly in First Appeal No.325 of 2023, the respondent/complainant was the original allottee of a plot in the Scheme launched by the appellant/OP as mentioned in the complaint, which was later on changed with some other plot without issuing any notice to the complainant individually. The OP had failed to deliver the possession of the plot complete in all respects to the complainant within the stipulated period. The complainant sought refund of the deposited amount along with interest etc. The OP had sent a cheque dated 14.11.2018 for an amount of ₹79,525/-, which was returned by the complainant to the OP vide letter dated 08.12.2018 (Ex.C-10). The First Appeal No.318 of 2023 25 appellant/OP had contested the complaint by filing reply thereto on the similar grounds as mentioned in First Appeal No.318 of 2023.
23. The complaint filed by the respondent/complainant was partly allowed by the District Commission vide impugned order dated 24.11.2022 by directing the OP to refund (if not already returned) the entire deposited amount of ₹1,50,000/- along with interest at the rate of 9% per annum from the date of receipt of the amounts from the complainant at different intervals till the date of actual payment subject to hand over of the possession of the plot, if any, taken by the complainant from the OP. The OP was further directed to pay an amount of ₹5,000/- towards consolidated costs and compensation to the complainant.
24. In view of the above discussion as well as the facts and circumstances and also the law as laid down in the aforesaid judgments, it is apparent that the OP had failed to complete the development works and deliver possession of the plots to the complainants within the stipulated period. Even the plots of the complainants were changed without taking their consent or issuing any individual notice to them. The District Commission has rightly passed the impugned orders by properly appreciating the evidence available on the file and as such no interference is required.
25. Accordingly, finding no force in the contentions raised by learned counsel for the appellant(s)/OP(s), all the appeals i.e. First Appeal No.318 of 2023 26 First Appeal No.318 of 2023, Appeal No.323 of 2023, First Appeal No.322 of 2023, First, First Appeal No.324 of 2023 and First Appeal No.325 of 2023 are dismissed and the impugned orders passed by the District Commission in the concerned complaints are upheld.
26. Since the main cases have been disposed off, so all the pending Miscellaneous Applications, if any, are accordingly disposed off.
27. The amount(s) deposited by the appellant(s) in all the appeals at the time of filing thereof or in connection with grant of stay as per order(s) passed by this Commission, if any, along with interest which has accrued thereon, if any, shall be remitted by the Registry to the District Commission forthwith separately in each appeal. The respondents/complainants may approach the District Commission for the release of the said amount and the District Commission may pass appropriate order in this regard in accordance with law.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER November 10, 2023.
(Gurmeet S)