National Consumer Disputes Redressal
Sangeeta Jain & 2 Ors. vs Yamuna Expressway Industrial ... on 21 January, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 160 OF 2014 1. SANGEETA JAIN & 2 ORS. R/o. S-319, Panchsheel Park, New Delhi - 110 017 ...........Complainant(s) Versus 1. YAMUNA EXPRESSWAY INDUSTRIAL DEVELOPMENT AUTHORITY & 2 ORS. First Floor, Commercial Complex, Block P-2, Sector Omega-I, Greater Noida 201 308 U.P. 2. Department of Stamp & Registration, (Through its Secretary) Government of Uttar Pradesh, Vishwas Commercial Complex, Vishwas Khand III, Gomti Nagar, Lucknow-226010 3. Registry Office Sub-Registrar, Gautam Budh Nagar, Sector Gamma-1, Greater Noida ...........Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON'BLE DR. S.M. KANTIKAR, MEMBER
For the Complainant : Mr. Dhaval Mehrotra, Advocate For the Opp.Party : For the O.P. 1 : Ex-parte (Vide order dated 18.11.2015) For the OPs 2 and 3 : Ex-parte (Vide order dated 18.11.2015) Dated : 21 Jan 2016 ORDER JUSTICE J.M. MALIK
1. There is a magic in that little word 'home'. It is a mystic circle and surrounds comforts and virtues, never known beyond its hollowed limits. However, the customers are exasperated by senseless delay made by the Builder of a colony.
2. Ms. Sangeeta Jain, the complainant No.1, is an allottee of plot No.E-020 in Sector-20, Yamuna Expressway Industrial Development Authority (in short, 'YEIDA'), admeasuring 1000 sq.mts. Ms. Raj Jain and Ms. Priyal Jain, complainant Nos. 2 & 3, being mother and daughter, respectively, are joint allottees of R-469, in Sector - 20, YEIDA. The said allotment of plots were made in the residential Schemes pre-launched by the OP1 and advertised as "Yamuna Expressway Industrial Development Authority Residential Plot Scheme 2009 (I)", on 02.03.2009. The plots were allotted to complainant No.1 on 20.10.2009 and in case of complainant Nos. 2 & 3 on 24.10.2013, by way of transfer from original allottee. Copies of the said allotment letters have been placed on record as Annexures C-2 & C-3 (Colly).
3. The complainants chose payment plan-II, wherein the allottees were under the obligation to pay 30% of the total premium upfront and the remainder in 16-half-yearly instalments, along with interest @ 12% p.a. It is alleged that to dupe the consumers, of their heard-earned funds, the OP1, has, in an unprecedented manner, caused execution and registration of an Agreement to Lease qua the allotment of complainants 2 & 3 on 19.05.2010 on which a stamp duty of Rs.1,30,650/- was paid. Thereafter, the OP1 caused the execution and registration of an agreement to sell between the complainant Nos. 2 & 3 and the previous allottees on which a stamp duty of Rs.1,03,100/- was paid. Thereafter, for the purpose of transfer, an inexplicable transfer fee of Rs.2,57,000/- was charged from the complainant Nos. 2 & 3. Again, another agreement to lease was caused to be executed by OP1 on 10.12.2013 on which stamp duty to the tune of Rs.2,95,000/- was paid by the complainant Nos. 2 & 3. Copy of the agreement to lease dated 19.05.2010 has been placed on record as Annexure C-4 (Colly). Agreement to lease dated 10.12.2013 and the agreement to sell are annexed as Annexure C-5 (Colly). Copy of the deposit of transfer fee to OP1 has been placed on record as Annexure C-6.
4. It is contended that under Section 7 of the Uttar Pradesh Industrial Development Act, 1976, the transfer could be made in respect of rules and not arbitrarily. It is also interesting to note that all these documents were executed in absence of ownership, possession and without plots being demarcated. The Scheme further provided that possession of plots would be handed over to the allottees, upon payment of 75% of the premium or after four years' from the date of issue of that letter, whichever is later. It further provides that stamp charges, registration charges, etc., were to be borne at the time of execution of the lease deed, by the allottees.
5. The installments, in terms of the mentioned payment plan also included therein a sum of Rs.1,000/- as "one-time web based portal charges". For the purpose of accessing the web based portal, the OP1 also provided each allottee a username and password. The URL to the web based portal was given to be http:// yamunaexpresswayauthority. com/2009-1 and OP1 was bound to make the service available by 15.01.2010.
6. It is alleged that even if any allottee duly pays the installment amount, in time, the OP1 sends "defaulter notices", with threatening consequences. Copy of defaulter notice dated 03.07.2013 has been placed on record as Annexure C-7. It is alleged that in addition to the base premium of allotment, the OP1 continues to charge interest, along with installment at the rate of 12% p.a., from the allottees, without even giving the possession of the plots. Aggrieved by such defaulters notice from OP1, the complainant No.1 filed an RTI application dated 27.12.2013. The OP1 replied that the lease plan was not received from the Planning Department and, therefore, the OP1 was not in a position to give possession. Record of payments was also filed which shows that all installments were duly paid by the complainant No.1. Complainant No.1 even paid an extra amount of Rs.5,500/-, which OP1 seemed to have charged baselessly. The RTI representation and reply have been placed on record as Annexure C-8 (Colly).
7. It is alleged that it is the duty of OP1 to approach the Planning Department for lease plan and have the same approved, but the OP1 has failed to do so. Moreover, OP1 has not even begun to carry out the development activities and the status of the land is such as was prior to the allotment of plots to thousand of allottees. As a matter of fact, OP1 has not yet got the possession of the land. Another representation was filed with the RTI on 16.10.2013. Its reply dated 31.12.2013 revealed that the same would be possible upon a payment of an additional amount of Rs.5,11,100/- in addition to a few more formalities, including furnishing of an indemnity bond. All these documents have been placed on record as Annexure C-9 (Colly).
8. On 26.12.2013, the complainant No.1 sent another letter to OP1 requesting it to come forward and give possession of the allotted plot to her. Copy of the said letter has been placed on record as Annexure C-10. However, no reply was received. The complainants have already made 75% of the payment. Copies of the receipts have been placed on record as Annexure C-11 (Colly). It is submitted that no URL as such exists. The OP1 had collected a sum of Rs.2.10 crores from the allottees and this is unjust enrichment of OP1. There is no activity on the land as is apparent from the photographs taken on the spot which have been placed on record as Annexure C-13 (Colly).
9. Again, the OP1 has called upon the complainant Nos. 2 & 3 to execute the agreement to lease and also informed that such agreement to lease would be executed at 5% of not the allotment rates but the circle rates which are bound to increase and vary. Copy of the said letter has been placed on record as Annexure C-14. The OP1 further made execution of an Agreement To Lease (in short, referred to as 'ATL') compulsory for the purpose of transfer of plots in favour of the complainant Nos. 2 & 3 from the previous allottee. The previous ATL executed with the previous allottee was cancelled by OP1 and a fresh ATL with the complainant Nos.2 & 3 was caused to be executed compulsorily. It has been done to benefit the department of Stamp and Registration, OP2 and Registry Office, OP3. Clause (6) of the ATL dated 10.12.2013 with complainant Nos. 2 & 3, reads as follows :-
"6. That it is also agreed by the party of the second part that stamp duty on this agreement to lease shall be payable by the party of the second part and in the event of cancellation of the allotment on any ground whatsoever and / or surrender of allotment, he/she would not be entitled to seek refund of the stamp duty paid on this agreement".
Moreover, OPs 2 & 3 have even collected stamp duty to the tune of Rs.5,28,750/- on contingent contracts, and through OP1. In the ATL dated 10.12.2013, the stamp duty paid on the previous agreement to lease was not adjusted. No clarification was given. In the event of cancellation of allotment, the huge amount of stamp duty would be fortified as per the terms of the ATL dated 10.12.2013. Moreover, the ATL does not mention the rate of allotment and sticks to the original consideration paid for allotment and yet, the stamp duty has been charged at 5% of the circle rate and not at the original allotment rate. The fresh allotment has been made on the basis of circle rate. Under these circumstances, the present complaint has been filed before this Commission on 22.05.2014, with the following prayers :-
"a) Hold the OPs guilty of unfair trade practice as well as deficient services.
b) Direct the OP1 to give possession of same plots or alternate equitable plots to the allottees elsewhere.
c) Direct the OP1 to adjust / refund the already collected interest and excess payments against remainder payments towards allotment to allottees.
d) Declare the period of delay in granting possession beyond the committed period as "Zero period" for collecting installments and interest from the allottees.
e) Direct the OP1 to pay interest @ 14% p.a., to the allottees on the installment money collected by OP1 till such time possession is granted to the allottee.
f) Direct the OP1 to pay compensatory damages to the tune of Rs.5.00 lakhs qua each allotment.
g) Direct the OP1 to fulfill all its obligations towards the Allottees in terms of the allotment letter as well as the residential scheme.
h) Direct the OP Nos. 2 & 3 to refund excess stamp duty charged.
i) Direct the OPs to register the lease deed on the allotment rate and not the arbitrary circle rates.
j) Pass such other orders as this Hon'ble Commission may deem fit".
10. The OPs 1 to 3 did not file their written statements within the prescribed period. Thereafter, applications for condonation of delay, were allowed subject to payment of Rs.25,000/- each, as costs. Application for waiver of costs was moved which was dismissed vide order dated 14.10.2015. Another opportunity was granted to pay the costs, before 18.11.2015. On 18.11.2015, none appeared for the OPs. They were proceeded as ex-parte. The case was adjourned to 18.01.2016. Till 18.01.2016, the costs were not paid. Case was fixed for final arguments on 18.01.2016. As OPs have neither paid the costs as otherwise too, their right to file written statements stands forfeited in view of the latest authority of the Hon'ble Supreme Court in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd., Civil Appeal Nos. 10941-10942 of 2013, dated 04.12.2015
11. We have heard the counsel for the complainants and gone through the written submissions filed by the complainants. It is clear that all the three complainants are majors and they have got the booking in their own / joint original names. There is no inkling that they have obtained the apartments for re-sale of the same. Consequently, it is sufficiently assumed that they are consumers in their individual capacity, separately.
12. The above said documents and the affidavits of the complainants prove their case. The OP-1 is guilty of unfair trade practice, it should not have announced the Scheme unless and until they have got the clean title of the acquired land. It is common knowledge that after contesting the case before the District / Additional District Judge, the farmer always goes to the Hon'ble High Court and then to the Hon'ble Supreme Court for enhancement of their compensation. It is difficult to fathom, why did, the Government Agency make an attempt to lead the gullible people up the garden path. The story does not stop here. Unashamedly, the OPs, are taking further installments, issuing defaulter notices and asking the consumers/complainants to deposit the stamp duty without acquiring the possession. Again, they have no courtesy to appear before this Commission. "Is it, a service to the public?". Is it the so called "Vikas?". From the above said evidence, the following facts emerge :-
"i) The OP1 pre-launched the residential scheme prior to acquisition and outside the scope of the Act under which it was established.
ii) The OP-1 made allotments to 21000 allottees (in 2009-10) with identified plot and sector numbers with sizes, without even having either acquired or having physical possession of the land for such plots.
iii) The OP-1 has not carried out any development activities on the said land and is not rendering any services on the land so portrayed to have been acquired.
iv) The OP-1 is not granting possession of the plots to the allottees despite the allottees/complainants meeting the terms of possession, i.e., payment of 75% of the premium as well as lapse of 4 years from the date of allotment .
v) The OP-1 has on such instalments further charged and collected an interest of 12% p.a., on allotment rate only to enrich itself; without any service to offer. The OP-1 continues to charge interest from allottees.
vi) In addition to the instalments, the OP-1 has unjustly charged interest from the allottees and continues to sit over and unlawfully enrich itself from the investments of the public, without delivering any service in return.
vii) The OP1 has carried out transfer of allotments of non-existent plots and has even charged huge amounts of transfer fee from transferees of allotment, without having any plot to offer. Such transfers have been effectuated on whimsically varying circle rates.
viii) the OP2&3 have, without any immoveable property in picture, allowed registration and execution of agreements to lease, agreements to sell and transfers and have also charged stamp duty on the same.
ix) Stamp duty has been charged on contingent contracts while restraining complainants from seeking refund, causing double jeopardy.
x) The OP-1 is causing circle rates to be increased periodically through OP2 and 3, without any basis for determination and therefore unjustly benefitting itself and the state at the expense of the allottees/ consumers, who are not in a position to enjoy the services so promised to be provided.
xi) The allottees cannot access the web based portal for which money was charged from all allottees.
xii) The OP1 further harasses the allottees by sending "defaulter notices" despite payments having been duly made.
xiii) The OP-1 is moving ahead and calling forth and compelling the execution of agreement to lease, without having any right or possession over the land on which plots are to exist.
xiv) There is clear nexus between the OPs in carrying out unfair trade practices on and along the Yamuna Expressway.
xv) The OP1 is arbitrarily causing execution of agreements to lease on same parcels of land again and again and on the revised circle rates which are increasing at the behest of the OPs 2 & 3.
xvi) The OPs have arbitrarily linked transfer with agreement to lease in order to benefit the OP1 from the transfers and OPs 2 & 3 from the lease / agreements to lease.
xvii) The OP1 has procured investments and interest on the same from the public and is further enjoying interest on such collections.
xviii) The rate of allotment and the circle rate for the same plot are different despite the fact that possession of the same has never been granted.
xix) The transfer charges, being administrative charges, have increased from 2.5% to 5% and are being charged on ad-volarem basis.
xx)Complainants 2&3, for a plot allotted at Rs.23,75,000/- have already paid Rs.7,85,000/- in lieu of transfer charges and agreements caused to be executed and in addition to what has been duly paid towards the installments.
13. It is well said that justice denied is not only justice delayed but it is also justice circumvented, justice mocked and the system of justice undermined. The main question is, whether, these three complainants will get their apartments, during their life time?".
14. Consequently, we direct the OP-1 to handover the possession of the apartments to the complainants, within one year;
OR If it is not possible, alternative apartments be given to the allottees, as per their choice.
OR If these things are not possible, the amount be paid back to the complainants, along with the stamp duty, and interest @ 12% p.a., and that too, if the complainants, so desire, by the OPs 1 to 3, jointly and severally, from the date(s) of deposit(s), till realisation. The complainants may string along with this Scheme but would not be entitled to any other relief except the one granted herein with.
15. The OP1 shall not take the interest for the remainder payments towards the allotment of apartments to the allottees, except for four years', till the complainants are put in possession of their respective apartments. The OP1 is debarred from sending the 'defaulter notices' or forcing the allottees to execute the lease deed without having possession of the land. However, in view of the peculiar circumstances, there will be no order as to compensation or costs.
......................J J.M. MALIK PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER