State Consumer Disputes Redressal Commission
Gurmeet Kaur vs Nature Heights Pvt. Ltd. on 6 January, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
Consumer Complaint No.189 of 2016
Date of institution : 14.06.2016
Date of decision : 06.01.2017
Smt. Gurmeet Kaur wife of Sh. Harnek Singh, resident of House
No.3354, Sector 35-D, Chandigarh.
....Complainant
Versus
1. Nature Heights Infra Limited, 9, Sunder Nagari, Hanumangarh
Road, Abohar-152116, District Fazilka, Punjab.
2. Western Homz, near Paras Pnorma, NH-21, Desumajra, Kharar.
3. Western Homz, SCO 116, 1st Floor, Ph-Vii, Mohali, SAS Nagar.
4. Western Homz, Jhungian, adjoining Sunny Enclave, Sector 125,
Greater Mohali, SAS Nagar.
....Opposite Parties
Consumer Complaint under Section
17(1)(a)(i) of the Consumer Protection Act,
1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Vinod Kumar Gupta, Member.
Present:-
For the complainant : Shri Puneet Singla, Advocate For the opposite parties : Ex parte.
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT :
The complainant consumer, being an old aged person, dreamed to have a separate roof over her head, due to expansion/increase of her family, for leading her remaining life peacefully along with her spouse. The home is the starting place of hopes and dreams. It is the foundation for life of a family and their children. Many a time, life takes a person to unexpected places and Consumer Complaint No.189 of 2016 2 love of shelter brings him home, perhaps for this reason human beings hope and dream to make a home, may be it a flat or a house.
2. The complainant was allured by the tempting advertisements in newspapers, print media, gleaming hoardings offering homes and brochures. We all are living in the age of advertisements. The advertisements spread before us a perfect life picture, which many times, results in disillusion and changes and withers in no time. The glittering and shiny advertisement leaves us with a feeling of resentfulness after spending a fortune for the dream house/flat. This appears to have happened with the present complainant, who ended up losing a lofty amount of her savings and experiencing harassment at the hands of opposite parties. So, this complaint against the opposite parties under Section 17 of the Consumer Protection Act, 1986.
3. The relevant brief facts as averred in the complaint are that the opposite parties invited applications for allotment of flats through draw of lots in their upcoming project known as "Nature Heights Western homz," in the area of revenue estate (village) Jhungian, Tehsil Kharar, Sector 125, Mohali. The complainant applied for allotment of a flat in the said project, vide application dated 03.09.2011 Exhibit C-1, and deposited ₹20,000/-, vide receipt dated 05.09.2011 Exhibit C-2. The draw of lots was held on 05.10.2011 for the flats of 3 BHK and 2 BHK. In the said draw of lots, the complainant was allotted one 3 BHK flat, No. 377 on Ground Floor in Tower No. 95 at a discount of 5%. At the time of allotment, it was assured by the opposite parties that the Consumer Complaint No.189 of 2016 3 project will be completed within 2 years from the date of the draw of lots and the possession will be handed over in the stipulated period i.e by the end of year 2013.
4. The opposite parties informed the complainant that total price of the 3 BHK flat is ₹ 42,75,000/. Trusting the opposite parties, the complainant deposited 1st instalment of ₹ 1,00,000/- (Rupees one lakh) against receipt dated 08.10.2011 Exhibit- C-3. The complainant requested the opposite parties to supply all the relevant documents, such as approval of the project from PUDA or the government, map, CLU, location of the Tower number, as the same were required for getting loan from the bank. The opposite parties did not provide any of the relevant documents and continued to make lame excuse on one pretext or the other, but the complainant continued to pay the amount in installments. Till date the complainant has paid ₹ 27,72,000/- to the opposite parties, vide cheques and receipts Exhibit C-2 to Exhibit C-
16. It is apposite to mention here that a unilateral agreement dated 13th of August 2012 Exhibit C-22 was executed by the opposite parties, wherein the Khasra numbers have been mentioned where the alleged flats would be constructed.
5. The complainant visited the site, then it transpired that no construction activity was in progress at the site. Some construction in the shape of pillars and semi complete structures made in the year 2012 was standing. It further came to the notice of the complainant that there is no Tower No. 95, in which she had been allotted the flat No.
377. In fact there are 4 floors i.e ground 1st , 2nd and 3rd floor. Even Consumer Complaint No.189 of 2016 4 roads, sewerage, water supply lines and other basic amenities are not in existence at the site. The state of affairs at the site is visible in photograph Exhibit C-9.
6. The complainant wrote letters Exhibit C-17 to Exhibit C-20 to the authorities of opposite parties but no response was received from them. Even a legal notice dated 24.07.2015 Exhibit C-21 was sent to the Manager of the opposite parties with a copy to its Director through counsel.
7. On the basis of aforesaid averments, the complainant has prayed that the opposite parties be directed to refund the above said deposited amount, along with interest at the rate of 18% per annum, and to pay ₹ 2,00,000/-, as compensation on account loss, mental agony and harassment suffered by the complainant, besides ₹50,000/- as litigation expenses.
8. The notices to the opposite parties were issued by the Commission. Sh. Gurshamshir Waraich, Advocate appeared on behalf of opposite party No.1 on 11.08.2016. Notices issued to other opposite parties were received as "unclaimed". The publication notice was ordered to be issued in "The Tribune". Even after publication in "The Tribune", no one appeared on behalf of the remaining opposite parties and ultimately, vide order dated 13.10.2016, remaining opposite parties were proceeded ex parte. Thereafter, Learned counsel for the opposite party No.1 also stopped appearing, and opposite party no 1 was also proceeded ex parte, vide order dated 28.10.2016. Consumer Complaint No.189 of 2016 5
9. The opposite parties did not file any reply nor tendered any evidence.
10 To substantiate her claim, the complainant has produced evidence on record by way of her own affidavit, Ex.C-A, along with various documents Ex.C-1 to Ex.C-29.
11 We have heard learned counsel for the complainant and perused the record.
12 The Ld. Counsel for the complainant vehemently contended that innocent complainant was misled by the advertisement and the brochure issued by the opposite parties. In pursuant to the advertisement complainant had booked the flat with the opposite parties and has paid more than 50% of the total price of the flat to them. The enquiry made by the complainant at the site, where alleged flats would be constructed, was having only pillars and semi constructed structures. The Ld. Counsel for the complainant further contended that there is no likelihood of completion of construction even in near future. To the knowledge of the complainant, even no sanction has been taken from the PUDA and Town and Country Planning Department, Punjab. The project has been advertised without following the procedure as mentioned in the Punjab Apartment and Property Regulation Act, 1995 (hereinafter to be referred as the "PAPRA") . 13 Learned counsel for the complainant further contended that since the opposite parties failed to provide any document of title with regard to the property in question, where the alleged project was to be set up, and also failed to provide any permission from the competent Consumer Complaint No.189 of 2016 6 authority and the CLU. For these reasons, the complainant became apprehensive. In the circumstances, there was no option with the complainant, but to stop the further payments. The complainant was always ready and willing to pay the entire amount as demanded, provided there was any hope or the possibility of the completion of alleged upcoming project in which she has been allotted flat. Even no Tower No. 35 was identifiable at the site.
14 We have given a thoughtful consideration to the contentions raised by the learned counsel for the complainant. 15 The averment in the complaint as well as the evidence led by the complainant by way of affidavit along with exhibited documents remains unrebutted. It is crystal clear from the evidence on record that the complainant applied for allotment of flat, vide application Ex.C-1, and deposited the initial booking amount of ₹ 20,000/-, vide receipt Ex.C-2, and thereafter had paid the substantial amount vide various receipts and account payees cheques, Ex.C-4 to Ex.C-16. The said amount has been received by the opposite parties-Nature Heights Infra Limited with respect to flat No.377, Ground Floor, in Tower No.95 at a discounted price of 5%. The possession of the flat was to be handed over within stipulated period of two years from the date of draw of lots and registration of flat was to be made after two years of completion of instalments.
16 It would be apposite to refer to the relevant provisions of the PAPRA, which are as follows:
3. General Liabilities of Promoter:-Consumer Complaint No.189 of 2016 7
(1) Notwithstanding anything in any other law for the time being in the force, a promoter, who develops a colony or who constructs or intends to construct a building of apartments, shall, in all transactions with persons taking or intending to take a plot or an apartment on ownership basis, be liable to give or produce, or cause to be given or produced, the information and the documents mentioned hereinafter in this section. (2) A promoter who develops a colony or who constructs or intends to construct such building of apartments shall,-
(a) make full and true disclosure of the nature of his title to the land on which such colony is developed or such building is constructed or is to be constructed, such title to the land having been duly certified by an attorney-at-law or an advocate of not less than seven years standing, after he has examined the transactions concerning it in the previous thirty years ; and if the land is owned by another person, the consent of the owner of such land to the development of the colony or construction of the building has been obtained;
(b) make full and true disclosure of all encumbrances on such land, including any right, title, interest or claim of any party in or over such land;
(c) give inspection on seven days, notice or demand,-
(i) of the layout of the colony and plan of development works to be executed in a colony as approved by the prescribed authority in the case of a colony; and
(ii) of the plan and specifications of the building built or to be built on the land as well as of the common areas and facilities and common services provided (including supply of electricity and water, sewerage and drainage systems, lifts, fire-
fighting equipment), such plans and specifications being in accordance with the provisions of the building regulations, and approved by the authority which is required so to do under any law for the time being in force, indicating thereon what parts of the building and the appurtenant areas are intended to be kept as common areas and facilities in the case of apartments :
Provided that the number and sizes of the apartments shall conform to such building regulations, and the area of an apartment shall not exceed such limit as may be fixed by the competent authority;
(d) display or keep all the documents, plans and specifications or copies thereof referred to in clauses (a), (b) and (c) of this sub-section at the site and in his office and make them available for inspection to persons taking or intending to take a plot or an apartment and after the association is formed, he shall furnish the association a copy of these documents and of the sanctioned plan of the building;
(e) disclose the nature of fixtures, fittings and amenities, including the provision for one or more lifts, provided or to be provided;
(f)disclose on reasonable notice or demand, if the promoter is Consumer Complaint No.189 of 2016 8 himself the builder, the prescribed particulars as respects the designs and the materials to be used in construction, and, if the promoter is not himself the builder, disclose all agreements entered into by him with the architects and contractors regarding the design, materials and construction of the building;
(g) specify, in writing, the date by which possession of the plot or apartment is to be handed over and he shall hand over such possession accordingly;
(h) except where there are no agreements about specific plots or apartments and allotment is made by draw of lots, prepare and maintain a list of plots or apartments with their numbers, the names and addresses of the parties who have taken or agreed to take plots or apartments, the price charged or agreed to be charged therefor, and the terms and conditions, if any, on which the plots or apartments are taken or agreed to be taken;
Provided that the competent authority may direct that,-
(i) in the case of residential apartments, if the total number of apartments is one hundred or more, ten percent of the apartments; and
(ii) in the case of colony, if the total area of the colony is forty hectares or more, ten per cent of the area under residential plots and houses, be reserved for being sold or leased to such person belonging to such economically weaker section of society, in such manner and on such terms and conditions as may be prescribed;
(i) state in writing, the precise nature of and the terms and conditions governing the association to be constituted of persons who have taken or are to take the apartments;
(j) not allow person to enter into possession until an occupation certificate required under any law is duly given by the appropriate authority under that law and no person shall take possession of an apartment until such occupation certificate is obtained;
(k) make a full and true disclosure of all outgoings, including ground rent, if any, municipal or other taxes, charges for water and electricity, revenue assessment, interest on mortgages or other encumbrances, if any;
(l) give the estimated cost of the building and the apartments proposed to be constructed, or colony to be developed, and the manner in which escalation in such cost for valid reasons may be approved by mutual agreement ;
(m) make a full and true disclosure of such other information and documents in such manner as may be prescribed; and
(n) give on demand and on payment of reasonable charges true copies of such of the documents referred to in any of the clauses of this sub-section as may be prescribed.
4. Issuing of Advertisement or Prospectus:-
Consumer Complaint No.189 of 2016 9
(1) No promoter shall issue an advertisement or prospectus, offering for sale any apartment or plot, or inviting persons who intend to take such apartments or plots to make advances or deposits, unless,-
(a) the promoter holds a certificate of registration under sub-section (2) of section 21 and it is in force and has not been suspended or revoked, and its number is mentioned in the advertisement or prospectus; and
(b) a copy of the advertisement or prospectus is filed in the office of the competent authority before its issue or publication. (2) The advertisement or prospectus issued under sub-
section (1) shall disclose the area of the apartments or plots offered for sale, title to the land, extent and situation of land, the price payable and in the case of colonies, also layout of the colony, the plan regarding the development works to be executed in a colony and the number and the validity of the licence issued by the competent authority under sub-section (3) of section 5, and such other matters as may be prescribed. (3) The advertisement or prospectus shall be available for inspection at the office of the promoter and at the site where the building is being constructed or on the land being developed into a colony, alongwith the documents specified in this section and in section 3.
(4) When any person makes an advance or deposits on the faith of the advertisement or prospectus, and sustains any loss or damage by reason of any untrue statement included therein, he shall be compensated by,-
(a) the promoter, if an individual; (b) every partner of the firm, if the promoter is a firm; (c) every person who is a director at the time of issue of the
advertisement or prospectus, if the promoter is a company :
Provided, however, that such person shall not be liable if he proves that,-
(a) he withdrew his consent to become a director before the issue of the advertisement or prospectus; or
(b) the advertisement or prospectus was issued without his knowledge or consent, and on becoming aware of its issue, he forthwith gave reasonable public notice that it was issued without his knowledge or consent; or
(c) after the issue of the advertisement or prospectus and before any agreement was entered into with buyers of plots or apartments, he, on becoming aware of any untrue statement therein, withdrew his consent and gave reasonable public notice of the withdrawal and of the reasons therefor. (5) When any advertisement or prospectus includes any untrue statement, every person who authorised its issue, shall be punished with imprisonment for a term which may extend upto one year or with fine which may extend upto five thousand rupees, or, with both, unless he proves that the statement was Consumer Complaint No.189 of 2016 10 immaterial or that he had reason to believe and did upto the time of issue of the advertisement or prospectus believe that the statement was true.
5. Development of Land into Colony:
(1) Any promoter, who desires to develop a land into a colony, shall make an application in the prescribed form alongwith the prescribed information and with the prescribed fee to the competent authority for grant of permission for the same and separate permission will be necessary for each colony. (2) On receipt of the application under sub-section (1), the competent authority, after making enquiry into the title to the land, extent and situation of the land, capacity of the promoter to develop the colony, layout of the colony, conformity of the development of the colony with the neighbouring areas, plan of development works to be executed in the colony and such other matters as it may deem fit, and after affording the applicant an opportunity of being heard and also taking into consideration the opinion of the prescribed authority, shall pass an order, in writing, recording reasons either granting or refusing to grant such permission.
(3) Where an orders is passed granting permission under sub-section (2), the competent authority shall grant a licence in the prescribed form, after the promoter has furnished a bank guarantee equal to twenty five percent of the estimated cost of the development works certified by the competent authority and the promoter has undertaken to enter into an agreement in the prescribed form for carrying out completion of development works in accordance with the conditions of the licence so granted.
(4) The licence granted under sub-section (3) shall be valid for a period of three years and will be renewable from year to year on payment of prescribed fee.
(5) The promoter shall enter into agreement undertaking to pay proportionate development charges for external development works to be carried out by the Government or a local authority.
(6) The competent authority shall determine the proportion in which, and the time within which, the estimated development charges referred to in sub-section (5) shall be paid to the State Government, or the local authority, as the case may be.
(7) The promoter shall carry out and complete the development of the land in accordance with the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (Central Act 33 of 1976) and other laws for the time being in force.
(8) The promote shall construct or get constructed at his own cost schools, hospitals, community centres and other Consumer Complaint No.189 of 2016 11 community buildings, on the land set apart for this purpose or transfer such land to the State Government either free of cost or upon payment of actual cost of developed land, as decided by the State Government, which shall be at liberty to transfer such land to any local authority or any person or institution on such terms and conditions as it may deem fit:
Provided that if, having regard to the amenities which exist or are proposed to be provided in the locality, the competent authority is of the opinion that it is not necessary to provide one or more of such amenities, it may exempt the promoter from providing such amenities, either wholly or in part, on such terms and conditions as it may deem fit.
(9) The promote shall, where the total area of the colony is forty hectares or more, reserve upto ten per cent of the area under residential plots and apartments as the competent authority may direct, for being sold or leased to such persons belonging to such economically weaker sections of society, in such manner and on such terms and conditions, as may be prescribed.
(10) The promoter shall carry out all directions issued by the competent authority for ensuring due compliance of the execution of the layout and the development works therein and to permit the competent authority or any officer authorised by it to inspect such execution.
(11) The promoter shall be responsible for the maintenance and up keep of all roads, open spaces, public parks and public health services until the date of transfer thereof, free of cost to the State Government or the local authority. (12) In the event of the promoter contravening any provisions of this Act, or rules made thereunder or any conditions of the licence granted under sub-section (3) the competent authority may, after giving an opportunity of being heard, cancel the licence and enforce the bank guarantee furnished by the promoter under the said sub-section(3). (13) When a licence is cancelled under sub-section (12), the competent authority may itself carry out or cause to be carried out the development works, and after adjusting the amount received as a result of enforcement of bank guarantee, recover such charges as the competent authority may have to incur on the said development works from the promoter and the allottees in the manner prescribed as arrears of land revenue. (14) The liability of the promoter for payment of development charges referred to in-sub section (13) shall not exceed the amount the prompter has actually recovered from the allottees less the amount actually spent on such development works, and that of the allottees shall not exceed the amount which they would have to pay to the promoter towards the expenses of the said development works under the terms of the agreement of sale or transfer entered into between them:
Provided that the competent authority may, recover from the Consumer Complaint No.189 of 2016 12 allottees with their consent, an amount in excess or what may be admissible under the aforesaid terms of agreement of sale or transfer.
(15) Notwithstanding anything contained in this Act, after development works have been carried out under sub-section (13), the competent authority may, with a view to enabling the promoter, to transfer the possession of, and the title to, the land to the allottees within a specified time, authorise the promoter by an order to receive the balance amount, if any, due from the allottees after adjustment of the amount which may have been recovered by the competent authority towards the cost of the development works and also transfer the possession of, and the title to, the land to the allottees within aforesaid time and if the promoter fails to do so, the competent authority shall on behalf of the promoter transfer the possession of, and the title to, the land to the allottees on receipt of the amount which was due from them.
(16) After meeting the expenses on development works under sub-section (13), the balance amount shall be payable to the promoter.
6. Contents of Agreement of Sale:-
(1) Notwithstanding anything contained in any other law for the time being in force, a promoter who intends to construct or constructs a building of apartments, all or some of which are to be taken or are taken on ownership basis, or who intends to offer for sale plots in a colony, shall, before he accepts any sum of money as advance payment or deposit, which shall not be more than twenty five per cent of the sale price, enter into a written agreement for sale with each of such persons who are to take or have taken such apartments, or plots, as the case may be, and the agreement shall be in the prescribed form together with prescribed documents and shall be registered under the Registration Act, 1908 (Central Act no. 16 of 1908) ;
Provided that, if only a refundable application fee is collected from the applicant before draw of lots for allotment, such agreement will be required only after such draw of lots. (2) The promoter shall not cancel unilaterally the agreement of sale entered into under sub-section (1) and if he has sufficient cause to cancel it, he shall give due notice to the other parties to the agreement and tender a refund of the full amount collected togetherwith interest at the rate as may be prescribed.
(3) The agreement to be prescribed under sub-section (1) shall contain inter alia the particulars as hereunder specified in clause (a) in respect of apartments and as specified in clause
(b) in respect of plots in a colony and to such agreement shall be attached the copies of the documents specified in clause
(c),-
Consumer Complaint No.189 of 2016 13
(a) the particulars in the case of apartment,-
(i) if the building is to be constructed, the liability of the promoter to construct the building according to the plans and specifications approved by the authority which is required so to do under any law for the time being in force;
(ii) the date by which the possession of the apartment is to be handed over to the allottee;
(iii) the area of the apartment including the area of the balconies which should be shown separately:
(iv) the price of the apartment including the proportionate price of the common areas and facilities which should be shown separately, to be paid by the allottee of the apartment and the intervals at which the instalments thereof may be paid;
(v) the precise nature of the association to be constituted of the persons who have taken or are to take the apartments;
(vi) the nature, extent and description of the common areas and facilities and the limited common areas and facilities, if any;
(vii) the percentage of undivided interest in the common areas and facilities and in the limited common areas and facilities, if any, appertaining to the apartment agreed to be sold, such percentage shall be the ratio of the built-up area of the apartment to the total built-up area of all the apartments;
(viii) the statement of the use for which the apartment is
intended and restrictions on its use, if any;
(b) particulars in the case of plots in a colony,-
(i) the date by which the possession of the plot is to be
handed over to allottee;
(ii) the area and price of the plot; and
(iii) the statement of the use for which the plot is intended
and restriction on its use, if any;
(c) the copies of documents to be attached with the
agreement,-
(i) the certificate by an attorney-at-law or advocate referred to in clause (a) of sub-section(2) of section 3;
(ii) certified copy from any relevant revenue record showing the nature of the title of the promoter to the plot or the land on which the building of apartments is constructed or is to be constructed ; and
(iii) the plans and specifications of the apartment as approved by the authority which is required so to do under any law for the time being in force.
9. Accounts of sums taken by promoter:- The promoter shall maintain a separate account in any scheduled bank of sums taken by him from persons intending to take or who have taken apartments or plots, as advance, towards sale price or for any other purpose, or, deposit, including any sum so taken towards the share capital for the formation of a co-operative Consumer Complaint No.189 of 2016 14 society or a company, or towards the outgoings(including ground rent, if any, municipal or other local taxes. charges for water or electricity, revenue assessment, interest on mortgages or other encumbrances, if any, stamp duty and registration fee for the agreement of sale and the conveyance); and the promoter shall hold the said moneys for the purposes for which they were given and shall disburse the moneys for those purposes including for the construction of apartments and, in the case of colonies, for meeting the cost of development works, and shall on demand, in writing, by the competent authority make full and true disclosure of all transactions in respect of that account and shall not utilize for any other purpose the amounts so collected for a particular purpose.
12. Refund of Amount:-If the promoter,-
(a) fails to give possession, in accordance with the terms of his agreement, of a plot or an apartment duly completed by the date specified, or any further date agreed to by the parties; or
(b) for reasons beyond his control and of his agents, is unable to give possession of the plot or the apartment by the date specified, or the further agreed date; the promoter shall be liable on demand, but without prejudice to any other remedies to which he may be liable, to refund the amounts already received by him in respect of that plot or apartments with simple interest at the rate as may be determined by the competent authority from the date the promoter received the sums till the date the amounts and interest thereon is refunded, and the amounts and the interest shall be a charge on the land on which a plot is to developed, or a building is or was to be constructed and the construction, if any, thereon shall be subject to any prior encumbrances.
17. Then "Punjab Apartment and Property Regulation Rules, 1995" were framed under Section 45 of the PAPRA and according to Rules 7, 8 & 17 , it has been provided as under:-
"7. Disclosure regarding registration and licence - The promoter shall disclose the number of his certificate of registration granted under sub-section (2) of section 21 and, in the case of a colony, also the validity of licence issued under sub-section (3) of section 5 and display the certificate of registration and the licence so granted at a conspicuous place in his office and make it available for inspection to the persons taking or intending to take an apartment or a plot in the colony and to a person authorized by the competent authority.Consumer Complaint No.189 of 2016 15
8. Supply of copies of documents. - The promoter on demand shall supply true copies, on payment of reasonable charges, of the following documents, namely :-
(a) Title deed of land, certificate of the attorney at-law or an advocate of not less than seven years standing, referred to in clause (a) of sub-section (2) of section 3 and copies of the advertisement issued under section 4;
(b) Copy of the consent of the land owner, if the land does not belong to the promoter as referred to in clause (a) of sub-section (2) of section 3;
(c) Design of apartment, agreement with an architect and a contractor, referred to in clause (f) of sub-section (2) of section 3;
(d) Copy of occupation certificate referred to in section 14; and
(e) Certificate of registration granted under sub-section (2) of section 21 and in case of colony, the permission granted under sub-section (2) of section 5.
17. Rate of interest on refund of advance money upon cancellation of agreement.- The promoter shall refund full amount collected from the prospective buyers under sub-section (1) of section 6 together with interest thereon at the rate of twelve per cent per annum payable from the date of receipt of amount so collected till the date of re-payment."
18 The perusal of above referred provisions clearly makes out that a builder or a promoter or a developer cannot proceed with the construction without prior permission of the competent authority. They are required to fulfil the conditions mentioned in the PAPRA. Section 9 of the said Act clearly specifies that a separate account is required to be maintained of the amount received from the allottee of a flat and the amount paid by the complainant/allottee would be considered to be a deposit held by the opposite party in trust for complainant and to be spent only for the purpose it has been received that is in construction of flat.
19 Since the opposite parties failed to supply the documents and also failed to put any document before this Commission, an adverse inference has to be drawn against the opposite parties that they are not having any sanction from the Government, other Consumer Complaint No.189 of 2016 16 concerned departments . They have not obtained any permission of "Change of Land Use" (CLU), nor the title over the khasra numbers, which are mentioned in a unilateral agreement, Ex.C-22. 20 The complainant has been misled by the advertisement made by way of pamphlets and other means as well as Brochure issued by the opposite parties. It relevant to notice here that a unilateral agreement dated 13th of August 2012 has been executed by the opposite parties, wherein the Khasra numbers are mentioned, where flats were to be constructed. Admittedly, the opposite parties had made advertisement by way of pamphlets and other means and Brochure, Ex.C-28, and pamphlet, Ex.C-29, wherein the prices of 3 BHK and 2 BHK flats have been mentioned. Admittedly, the complainant applied for allotment of flat, vide application Ex.C-1, and deposited the initial booking amount of ₹ 20,000/-, vide receipt dated 05.09.2011 Ex.C-2. Subsequently, various amounts have been paid, vide different receipts and account payee cheques Exhibits C-3 to Exhibits C-16 to the opposite parties. Total amount of ₹ 27,72,000/- has been paid out of the total sale consideration of the flat, being ₹42,75,000/-. At the site, there is no progress in construction. The averments made in the complaint and evidence led by the complainant remains unrebutted. In-spite of issuance of legal notice and other communication, the opposite parties have not given any reply to the complainant, to explain the reasons for the delay. In view of the above we hold that opposite parties have failed to perform their obligation of constructing the flats for which they have received substantial amount Consumer Complaint No.189 of 2016 17 i.e more than 50% of the total sale price of the flat from the complainant. It is a clear case of deficiency in service on the part of the opposite parties having failed to deliver possession of the allotted flat to the complainant within the stipulated period of 2 years. The builders are under obligation to deliver possession of the flat within a reasonable time. The complainant cannot be made to wait indefinitely to get possession of the flat booked by her. The evidence brought on record clearly establish unfair trade practice carried out by the opposite parties.
21 The Consumer Protection Act came into existence in the year 1986 and it is one of the benevolent piece of legislation in India to protect the consumers from exploitation. The spirit of the benevolent legislation cannot be overlooked and its object is not to be frustrated. There is not even an iota of evidence led by the opposite parties to rebut the averments made in the complaint, in-spite of the fact that initially opposite party No.1 had been represented by a counsel, who afterwards stopped appearing and ultimately, opposite party No.1 was proceeded ex parte. In these circumstances, an adverse inference has been to be drawn against the opposite parties. The evidence on the record clearly shows deficiency in service on the part of the opposite parties, as they went on accepting the instalments, without bothering to complete the project as agreed upon between the parties. Ultimately, when the site was visited, there were only pillars and semi-constructed structures, but the complainant failed to find that the said property even belongs to the opposite parties. Even in the Brochure placed on the Consumer Complaint No.189 of 2016 18 record by the complainant as Ex.C-28, it is not mentioned that the opposite parties have received any sanction from the competent authority or have already obtained the CLU for the land, in question. No reference of the concerned letters from the competent authority/Government has been made in the Brochure or the advertisement, but in the brochure it has been written in bold letters "Approved by PUDA". It appears that just to fleece the innocent consumers, they had made misleading advertisement in the newspaper in violation of the provisions of Sections 3, 4 and 5 of the PAPRA. The Government is not even taking any action against the private builders, although there are provisions of registration of FIR and cancellation of their licenses under section 25 of the PAPRA. The act and conduct of the opposite parties amount to deficiency in service and unfair trade practice.
22 In the present case opposite parties-builder knew from the very beginning that they had not complied with the provisions of PAPRA and would not be able to deliver possession within stipulated period and by misrepresenting induced the complainant to book the flat due to which the complainant suffered mental agony and harassment. The complainant lady is residing in a rented accommodation along with her family members had to pay rent in spite of payment of substantial amount to the opposite parties with a hope to get a flat in a reasonable time. The opposite parties made false statement of facts about the goods and services i.e. allotment of flat and its construction in stipulated period. This act and conduct of the opposite parties is clear Consumer Complaint No.189 of 2016 19 case of misrepresentation and deception which resulted into injury and loss of opportunities to the complainant. Had complainant would not have invested with the opposite party she would have invested her money elsewhere. There is escalation in the price of construction also. The builders in India have similar strategies to sell houses .The complainant has suffered loss as discussed above, so the complainant deserves suitable compensation, which we quantify in a lump sum as ₹2,00,000/.
23 In view of our above discussion, the complaint is allowed and the following reliefs are granted in favour of the complainant:-
i) The opposite parties are directed to refund an amount of ₹27,72,000/- to the complainant along with interest at the rate of 12% per annum from the various dates of payment of amounts till realization of the amount;
ii) to pay ₹2,00,000/-, on account of unfair trade practice and deficiency in service by receiving the amount and launching the project without obtaining proper approvals from the competent authority i.e. CLU from PUDA and Town and Gram Planning Department, Punjab or licence from GMADA, layout plans or other licenses as provided under PAPRA; and
iii) to pay ₹20,000/-, as litigation costs.
22. The opposite parties are directed to comply with this order within 30 days of the receipt of certified copy of the order. If the order is not complied with within above period, then Rs.2,00,000/- Consumer Complaint No.189 of 2016 20 awarded as compensation will also carry interest at the rate of 12% per annum from the date of this order till realization.
23. The complaint could not be decided within the statutory period due to heavy pendency of cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (VINOD KUMAR GUPTA) MEMBER January 06, 2017.
(Gurmeet S)