State Consumer Disputes Redressal Commission
Puda ( Now Bda) vs Narain Dass on 10 August, 2022
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.294 of 2022
Date of institution : 19.04.2022
Date of decision : 10.08.2022
Punjab Urban Development Authority (now BDA), PUDA Complex,
Bhagu Road, Bathinda, through its Estate Officer.
....Appellant/Opposite Party
Versus
Narain Dass (since deceased) through his LRs namely as under:
1) Shakuntla Devi wd/o Late Sh. Narain Dass;
2) Shanky Nagpal S/o Late Sh. Narain Dass;
Both Residents of House No.2604, near Satya Narayan Mandir,
Tehsil Rajpura Town, District Patiala.
....Respondents/Complainants
First Appeal under Section 41 of the
Consumer Protection Act, 2019 against the
order dated 29.11.2021 passed by the
District Consumer Disputes Redressal
Commission, Mansa.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Mrs. Urvashi Agnihotri, 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. Anuj Kohli, Advocate For the respondent : Sh. Deepak Kansal, Advocate. JUSTICE DAYA CHAUDHARY, PRESIDENT Appellant/opposite party i.e. Punjab Urban Development Authority (now BDA), PUDA Complex, Bhagu Road, Bathinda, through First Appeal No.294 of 2022 2 its Estate Officer has approached this Commission by way of filing the present appeal under Section 41 of the Consumer Protection Act, 2019 to challenge the order dated 29.11.2021 passed by the District Consumer Disputes Redressal Commission, Mansa (in short, "the District Commission"), whereby the complaint filed by the respondent/complainant-Narain Dass was partly accepted/allowed (along with bunch of cases) with consolidated amount of ₹3,000/- towards costs and compensation and the appellant/opposite party was directed to refund an amount of ₹2,25,000/- (if not already returned) along with interest at the rate of 9% per annum from the date of receipt of the amount from the complainant at different intervals till the date of actual realization subject to return of possession of the plot, if any, taken by the complainant from the opposite party. The compliance of the order was to be made within a period of 45 days from the date of receipt of copy of the order.
2. It would be apposite to mention here that hereinafter the parties will be referred, as have been arrayed before the District Commission.
3. Briefly, the facts of the case as made out by the complainant Narain Dass (since deceased) in the complaint filed by him before the District Commission are that the appellant/opposite party launched a Scheme for allotment of plots by way of draw of lots at 'PUDA Enclave', Budhlada, District Mansa. The complainant applied First Appeal No.294 of 2022 3 for allotment of a residential plot measuring 150 sq.yds. and deposited an amount of ₹90,000/- being 10% of the total price of the plot as earnest money. The draw of lots was held on 15.01.2013 wherein the complainant was declared successful. Thereafter, the Letter of Intent (hereinafter to be referred as "LoI") was issued to the complainant on 26.02.2013, wherein certain terms and conditions were mentioned. Thereafter, the complainant paid an amount of ₹1,35,000/- being the next instalment of 15% towards the sale consideration of the plot. Subsequently, the allotment letter dated 17.11.2016 was issued to the complainant, whereby plot No.523 measuring 150 sq.yds. was allotted to him with certain terms and conditions as reflected therein. Subsequently, the complainant was informed vide letter dated 08.02.2018 that his plot was changed from plot No.523 to 184 with the same dimensions. However, no notice was given/issued or consent of the complainant was taken before changing the number and location of the plot.
4. As per the terms and conditions of the allotment letter/Scheme, the possession of the plot was to be handed over to the complainant/allottee on completion of development works at the site or 18 months from the date of issuance of the allotment letter, whichever was earlier. However, neither the site was fully developed nor the possession of the plot was delivered within the agreed period. First Appeal No.294 of 2022 4
5. Finding a case of 'deficiency in service' and 'unfair trade practice' on the part of the appellant/opposite party, the complaint was filed with the averments that the plot allotted to the complainant was changed without his consent and the opposite party failed to complete the development works at site within the stipulated period and the basic amenities were not provided. The possession was also not handed over within the undertaken period. The complaint was filed before the District Commission for issuance of directions to the opposite party to refund the amount so deposited by the complainant and also to pay interest at the rate of 18% per annum from the respective dates of deposit till realization. The compensation of ₹1 lac was also sought along with the litigation expenses to the tune of ₹50,000/-.
6. In response to notice issued by the District Commission, the appellant/opposite party appeared and filed reply, wherein certain legal objections were raised relating to the period of limitation, change of plot and also the issue of providing basic amenities. It was also mentioned in the reply that there was an Arbitration Clause in the allotment letter, debarring the jurisdiction of the District Commission. It was further mentioned in the reply that the tentative price of the plot was ₹9 lac. The complainant paid only ₹2,25,000/- which was 25% of the total price of the plot. He did not pay any instalment of remaining 75% of the price of the plot as per the payment schedule as mentioned First Appeal No.294 of 2022 5 in the allotment letter. The first instalment was required to be paid on 19.10.2017 and the remaining instalments were required to be paid after every 6 months from the date of first instalment. The plot was allotted to the complainant on 'as is where is basis'. It was also mentioned in the reply that the opposite party had already completed the development works at the site since long and also provided all the basic amenities. The possession of plots was delivered to all the allottees, including the complainant. Neither the complainant ever requested for refund of the deposited amount, nor he was entitled to any refund. As such, there is no fault on the part of the opposite party.
7. On appreciation of the contents of the complaint and by considering the reply filed by the appellant/opposite party, the complaint filed by the respondent/complainant was partly allowed by the District Commission vide impugned order dated 29.11.2021 by awarding consolidated amount of ₹3,000/- towards costs and compensation and the appellant/opposite party was directed to refund an amount of ₹2,25,000/- (if not already returned) 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 realization, subject to return of possession of the plot, if any, taken by the complainant from the opposite party. The compliance of the order was to be made within a period of 45 days from the date of receipt of copy of the order.
First Appeal No.294 of 2022 6
8. Said order dated 29.11.2021 passed by the District Commission has been challenged by the appellant/opposite party by way of filing the present appeal by raising a number of arguments.
9. There was a delay of 75 days in filing of the appeal. Misc. Application No.550 of 2022 was filed for condonation of delay, which was supported by an affidavit. By considering the averments made in the application, the same was allowed vide order dated 22.04.2022 and the delay in filing the appeal was condoned.
10. Mr. Anuj Kohli, learned counsel for the appellant/opposite party submits that the contention of the respondent/complainant with regard to illegal change of number of the plot is totally wrong, as reshuffling of allotment was done due to technical reasons and the complainant was re-allotted the plot No.184 which was of the same dimensions of the earlier plot. The complainant was also informed regarding change of number of plot vide letter dated 08.02.2018. Even he was informed regarding giving of possession and for said purpose, special camps were also organized on different dates but the complainant failed to take the possession within the specified time.
11. Learned counsel further submits that after obtaining the requisite sanctions from various Branches, the complainant was informed through said letter stating that all the development activities at the site had been completed. There was no provision for refund of the amount with interest.
First Appeal No.294 of 2022 7
12. Learned counsel further submits that the interest at the rate of 9% awarded by the District Commission is not only illegal and arbitrary but it is on higher side also. It has further been argued 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 a delay in implementation of the Scheme. The plot was allotted on 'as is where is basis' and the development works were completed at the site. The possession of the plot was also delivered to the complainant within a period of 18 months from the date of issuance of the allotment letter. There is no 'deficiency in service' on the part of the opposite party.
13. Mr. Deepak Kansal, learned counsel for the respondent/complainant submits that the complainant had already paid the substantial amount towards the sale price of the plot. However, the opposite party had failed to complete the development works at the site and to 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 18 months from the date of issuance of the allotment letter or on completion of development works at the site, but the opposite party has failed to do so. Learned counsel further submits that the opposite party unilaterally changed the location and number of the plot earlier allotted to him vide letter dated 08.02.2018 and allotted new plot which First Appeal No.294 of 2022 8 was contrary to the terms and conditions of the allotment letter. However, no individual notice was given/issued to the complainant before changing location/number of the earlier plot allotted to him. At the end, learned counsel submits that due to default on the part of the opposite party, the complainant is entitled to refund of the entire amount deposited by him, along with interest and compensation. The appeal is liable to be dismissed. Learned counsel for the respondent/complainant has relied upon following cases in support of his contentions:
i) Pioneer Urban Land & Infrastructure Ltd. v. Govindan Raghvan 2019 (2) CPJ 34 (Supreme Court);
ii) DLF Home Developers Ltd. v. Capital Greens Flat Buyers Association CA-3864-3889 of 2020 decided vide order dated
14.12.2020;
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);
v) Sangeeta Aggarwal v. M/s Chitels India Pvt. Ltd. CC-2562 of 2018 decided vide order dated 27.05.2022 (NC);
vi) 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).
14. Heard the arguments of learned counsel for the parties. We have also carefully perused the impugned order passed by the District Commission, written arguments filed on behalf the respondent/complainant and all other documents available on the file. First Appeal No.294 of 2022 9
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 well settled that 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:
First Appeal No.294 of 2022 10
"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 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 First Appeal No.294 of 2022 11 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 or by the District Commission.
20. Now, coming to merits of the present case and the facts and circumstances, it is squarely covered by earlier verdict passed in First Appeal No.410 of 2021 (Punjab Urban Planning & Development Authority Vs. Ajaib Singh) which was decided along with bunch of 92 other cases vide order dated 13.07.2022.
21. The complaint filed by the respondent/complainant, which is the subject matter of the present appeal, was decided by the District Commission vide order dated 29.11.2021 whereby a bunch of 23 First Appeal No.294 of 2022 12 similar cases was decided. Said order dated 29.11.2021 passed by the District Commission was challenged in some of the appeals which were decided by this Commission vide a common order passed in the case of Ajaib Singh (supra). While passing the common order in the case of Ajaib Singh (supra), the orders passed by the District Commission in the concerned complaints were discussed separately. Since, this appeal has come up for hearing after the passing of common order in Ajaib Singh (supra), so we proceed to dispose of the present appeal in view of the relevant findings given by us while disposing of the case of Ajaib Singh (supra).
22. Admittedly, in this case the complainant is the original allottee. He had 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 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 ₹9 lac. Thereafter, allotment letter dated 17.11.2016 (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.523 measuring 150 sq.yds. in 'PUDA Enclave' Sugar Mill Site, Budhlada Urban Estate, Bathinda. The complainant deposited a total sum of ₹2,25,000/- towards the price of the plot as is evident from Clause-3(I) of the allotment letter (Ex.C-3). Various terms and First Appeal No.294 of 2022 13 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."
23. 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-4) within the stipulated period.
24. 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.184 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.184 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. First Appeal No.294 of 2022 14 Furthermore, no notice was given/issued 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.
25. 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 and had already been delivered to the complainant vide letter dated 08.02.2018. However, no evidence showing receipt of actual, physical and legal possession of the plot 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 First Appeal No.294 of 2022 15 letter dated 21.02.2019 (Ex.C-5) 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. Although, the opposite has produced copy of photograph Ex.OP/3 to show that boundary wall has been constructed but even there is no other evidence to prove that the project has been completed in all respects.
26. From perusal of above said evidence, it is clear that the project in question was not complete in all respects up to 11.04.2019. No Completion Certificate has been produced by the opposite party to prove that the project in dispute is complete in all respects. This Commission in the case of Ajaib Singh (supra) while discussing the various provisions such as Section 14 of the Punjab Apartment and Property Regulation Act, 1995 (in short, "PAPRA"); 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) which is applicable to the properties falling within the Municipal Limits; Section 272 of The Punjab Municipal Corporation Act, 1976 and orders dated 13.06.2018 passed by the Hon'ble National Commission in First Appeal No.855 of 2018 (Vision India Realtors Pvt. Ltd. & Anr. v. Sanjeev Malhotra) and the order dated 29.10.2011 passed in the case of "Suman Kumar Jha & another Vs. Mantri Technology First Appeal No.294 of 2022 16 Constellations Pvt. Ltd." CC No.54/2018, has held that without issuance of the Completion Certificate by the competent authority the project cannot be said to have been completed in all respects and the offer of possession of incomplete construction/unit/plot without obtaining Completion Certificate amounts to 'unfair trade practice'.
27. Therefore, 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.
28. 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 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.First Appeal No.294 of 2022 17
(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."
29. 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 First Appeal No.294 of 2022 18 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.
30. It is also relevant to mention that the Hon'ble Punjab and Haryana High in the case of Ram Kishan & Anr. v. State of Haryana & Ors. CWP No.4108 of 2016 decided on 22.11.2016 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 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 First Appeal No.294 of 2022 19 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."
31. 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.
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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 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."
32. 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.
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33. 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."
34. 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 First Appeal No.294 of 2022 22 act and conduct of the opposite party amounts to 'deficiency in service'.
35. 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 Clause-4(I) of the allotment letter clearly shows that the possession of the plot was to be delivered after 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 the completion of development works, so it cannot be said that the plot was allotted on 'as is where is basis'.
36. 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 District Commission has rightly held that the complainant is entitled to refund of the amount deposited by him along with interest and consolidated amount of compensation/ costs, as awarded by the District Commission.
37. So far as the rate of interest i.e. 9% per annum as awarded by the District Commission is concerned, the following observations have been made by this Commission in Para-40 of the case of Ajaib Singh (supra):
"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 First Appeal No.294 of 2022 23 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."
38. Further, in Para No.42 of the case of Ajaib Singh (supra), the following observations have been made by this Commission:
"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."
39. In view of the facts and circumstances as discussed above, we find that there is no ground to interfere with the findings recorded by the District Commission in the impugned order passed in the concerned complaint and the same is liable to be upheld.
40. Accordingly, the appeal is dismissed and the impugned order dated 29.11.2021 passed by the District Commission in the concerned complaint is upheld.
41. Since the main case has been disposed of, so all the pending Miscellaneous Applications, if any, are accordingly disposed of.
First Appeal No.294 of 2022 24
42. The appellant has deposited a sum of ₹25,000/- at the time of filing of the appeal. Another amount of ₹1,83,632/- was deposited on 20.07.2022 in compliance of order dated 22.04.2022 passed by this Commission. Said amounts, along with interest which has accrued thereon, if any, shall be remitted by the registry to the District Commission forthwith. The respondents/complainants may approach the District Commission for the release of the amount and the District Commission may pass the appropriate order in this regard after the expiry of limitation period in accordance with law.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (URVASHI AGNIHOTRI) MEMBER August 10, 2022.
(Gurmeet S)