State Consumer Disputes Redressal Commission
Amita Goyal vs Puda on 27 September, 2019
First Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No.205 of 2019
Date of institution : 08.03.2019
Reserved on : 12.09.2019
Date of decision : 27.09.2019
Amita Goyal, wife of Mr. Ashok Kumar, resident of #67, Ward
No.6, Shivaji Marg, Budhlada, Mansa, Punjab-151502.
......Complainant
Versus
1. Punjab Urban Planning and Development Authority
(PUDA), PUDA Bhawan, Sector 62, S.A.S. Nagar
(Mohali), Punjab-160062 through its Chief Administrator.
Email id:- [email protected].
2. Bathinda Development Authority (BDA), PUDA/BDA
Complex, Bhagu Road, Bathinda, Punjab-151001,
through its Estate Officer.
Email id:- [email protected]
....Opposite Parties
Consumer Complaint under
Section 17 of the Consumer
Protection Act, 1986.
Quorum:-
Mr. Rajinder Kumar Goyal, Presiding Member
Mrs. Kiran Sibal, Member.
Present:-
For the complainant : Sh. Ivan Khosa, Advocate For the OPs : Sh. Ashish Grover, Advocate C.C. No.205 of 2019 2 MRS. KIRAN SIBAL, MEMBER:
The complainant has filed this complaint, under Section 17 of the Consumer Protection Act, 1986, (in short "C.P. Act") seeking following directions to the opposite parties (in short "OPs"):-
(i) To refund the amount deposited with the OP to the tune of Rs.6,00,000/-.
(ii) To pay Rs.3,00,000/- for mental tension, agony, harassment and other sufferings.
(iii) To pay Rs.2,00,000/- as penalty for their inability to abide by the terms of the contract.
(iv) To pay Rs.50,000/- as costs of litigation expenses.
(v) To pay the aforementioned amount along with 18% interest from the date of issuance of LOI i.e. 26.02.2013.
(vi) Any other relief to which the complainant is entitled may also be awarded.
Facts of the Complaint:-
2. Brief facts, as set out in the complaint, are that the OPs launched a scheme for allotment of residential plots at PUDA Enclave (Sugar Mill), Budhlada, District Mansa, Punjab. The complainant had applied for a plot in the project of OPs and had deposited 10% of the total price to be eligible for the draw of lots. She had been declared to be the successful bidder, as per the draw of lots held on 12.04.2013. Complainant had filed the C.C. No.205 of 2019 3 application for allotment of a residential plot in the said project.
In pursuance of the application, OP No.2 had issued an allotment letter dated 22.11.2016 against Memo No.PUDA/E.O./2016/8287 and was allotted Residential Plot No.132 measuring 400 sq. yards in General Category at Sugar Mill, Budhlada. The total price of the said plot was Rs.24,00,000/- at the rate of Rs.6000/- per sq. yard. She had made a payment of Rs.6,00,000/- towards 25% initial payment of the plot. As per brochure issued by the OPs, the plot was to be handed over within a period of 18 months from the date of allotment or at the time of completion of development work, whichever was earlier. However, the allotment letter was issued after a period of three years from the issuance of the letter of Intent (LOI) in respect to the said plot. OPs vide their letter dated 05.02.2018, unilaterally changed the plot of the complainant from Plot No.132 to Plot No.1013, citing technical reasons. The said letter further mentioned that there was a camp being organized for taking the possession of the plot. If the possession of the plot was not taken till 01.03.2018, the letter stated that the possession of the plot would be deemed to have been given by the OPs. After the possession letter was received by the complainant, she visited the site and found that no development works were carried out at the site and there was lack of the agreed amenities. Complainant, along with other aggrieved parties, engaged the services of a qualified Civil C.C. No.205 of 2019 4 Engineer, who visited the site and made a detailed report dated 18.05.2018 to the effect that the project site of the OPs was not completely developed. A copy of the aforesaid report dated 18.05.2018 had already been placed before this Commission in various other consumer complaints which are stated in para No.6 of the complaint. No conclusive steps are taken by the OPs to undertake proper development work but instead they are only offering symbolic possession without actually completing the development works. Complainant had made all the efforts seeking the redressal of her grievances, but the OPs had failed and neglected to provide any probable much less satisfactory solution to the queries and request of the complainant. As per letter of allotment, OPs had promised to deliver the residential unit within 18 months from the issuance of LOI i.e. 26.02.2013. Therefore, the complaint is well within limitation. The complainant has alleged deficiency in service and unfair trade practice on the part of OPs. Hence, the present complaint.
Defence of the Opposite Parties
3. Upon notice, the OPs appeared and filed reply to the complaint, raising preliminary objections that the complainant does not fall under the definition of 'consumer' as defined under the Act as she purchased the plot for earning profits and not for self use. She has no cause of action to file this complaint. The complainant has not come to this Commission with clean hands C.C. No.205 of 2019 5 and she has suppressed the material facts. The complaint is liable to be dismissed being barred by limitation and involves intricate questions of law and facts, which cannot be decided in summary proceedings by this Commission. On merits, the facts of allotment of the plot in favour of the complainant and issuance of LOI to her were admitted. It is further pleaded that as per allotment letter dated 22.11.2016, possession of the plot was to be delivered after completion of development works at site from the date of issuance of the Allotment Letter, whichever was earlier. It is further stated that due to technical reasons, re- planning was done and draw was again held on 17.01.2018, in which the complainant was allotted plot No.1013 measuring 400 sq. yds. instead of Plot No.132 and she was duly intimated, vide letter dated 05.02.2018, that a camp would be held on 21.02.2018, 22.02.2018, 23.02.2018, 27.02.2018, 28.02.2018 and 01.03.2018 from 10.00 AM to 4.00 PM for delivery of possession of the plots and that the complainant should take the possession of the plot allotted to her by 01.03.2018, failing which it would be considered as delivered. It was further pleaded that Sub Divisional Engineer vide letter dated 27.06.2018 (Ex.R-1) had reported the status of civil works, public health, electrical, horticulture work at site. Apart from this, Superintending Engineer, Bathinda Development Authority intimated, vide letter dated 17.07.2018, stated that tender of Rs.33,56,04,251/- has been issued for development of Sugar C.C. No.205 of 2019 6 Mill Site, Budhlada, out of which payment of Rs.32.27 lac (approximately) has already been made. Photographs of the site and perusal of Ex.R-1 to Ex.R-3 would show that development work at the site is complete. It is further pleaded that this Commission has upheld the condition No.12 of the LoI regarding delivery of possession on completion of development works at site or 18 months from the issuance of Allotment Letter, whichever was earlier, while holding the complaint to be pre-mature in F.A. No.721 of 2017 (Balkar Singh v. PUDA) decided on 26.03.2018. All other allegations levelled in the complaint were denied and it was prayed that the complaint be dismissed with costs.
Evidence of the Parties
4. To prove her claim, the complainant, along with the complaint produced her own self attested affidavit, along with documents Ex.C-1 & Ex.C-2.
5. OPs along with their reply, produced affidavit of Sh. Udaydeep Singh Sidhu, Estate Officer, along with documents Ex.R-1 to Ex.R-3.
Contentions of the Parties
6. We have heard learned counsel for the parties and have carefully gone through the record of the case. C.C. No.205 of 2019 7
7. Learned counsel for the complainant vehemently contended that the opposite parties failed to complete the development works at the site within the stipulated period, as per terms of the LOI and Allotment Letter pertaining to plot initially allotted to her. The complainant had deposited a sum of Rs.6,00,000/- towards the price of the plot. LOI was issued on 26.02.2013, whereas the Allotment Letter, Ex.C-1, was issued on 22.11.2016 i.e. after more than three years. As per Clause 4 of the Allotment Letter, the possession of the plot was to be delivered after completion of development works at the site or 18 months from the date of the Allotment Letter, whichever was earlier. However, the OPs unilaterally changed the location of the plot earlier allotted to her, as per letter dated 05.02.2018, on alleged technical reasons and allotted new Plot No.1013 as well as offered its possession, wrongly, illegally and against the terms and conditions of the Brochure and LOI. However, no notice was given to her before changing location of the earlier plot allotted to her. Due to default on the part of the OPs and since the development work at the site is incomplete, the complainant is entitled to refund of the entire amount deposited by her, along with interest and compensation. Averring on similar lines as stated in the complaint, learned counsel for the complainant prayed for allowing the complaint.
8. Learned counsel for the OPs has vehemently argued that the project of the OPs is fully complete and the development C.C. No.205 of 2019 8 works have already been completed. The OPs vide their letter dated 05.02.2018 intimated the complainant that a camp would be held for handing over the possession of the plot. It was further contended that the possession of the plot allotted to the complainant has already been offered on 05.02.2018. Due to technical reasons, during re-planning new Plot No.1013 was allotted to the complainant, in place of the earlier allotted plot. However, the complainant never turned up to take possession within the said period. Rather, she sought refund of the amount deposited by her, along with interest, which is not permissible. It was further contended that possession has already been offered within the stipulated period, as per Clause 4 of the Allotment Letter, but the complainant instead of taking the possession of the plot, has filed this complaint, which is not maintainable. Thus, she is not entitled to any relief, as there is no deficiency in service on the part of the OPs and, as such, the complaint is liable to be dismissed. Averring on similar lines as stated in the complaint, learned counsel for the OPs prayed for dismissal of the complaint.
Consideration of Contentions
9. We have given our thoughtful considerations raised by the learned counsel for the parties and have gone through the record of the case.
C.C. No.205 of 2019 9
10. First of all, we would like to deal with the preliminary objection raised by the opposite parties that the complainant does not fall under the definition of "consumer", as she purchased the plot for earning profits and not for self use.
11. In this regard, it is relevant to mention that there is no evidence from the side of the opposite parties to prove that the complainant is indulging in sale/purchase of property for commercial purpose. Therefore, simple assertion in this regard in the reply of the opposite parties, without any cogent and convincing evidence in support thereof, is not sufficient to prove this fact. Hon'ble National Commission in M/s IREO FIVERIVER PVT. LTD. v. SURINDER KUMAR SINGLA & OTHERS First Appeal No.1358 of 2016, decided on 29.11.2016, while relying upon its earlier decision in KAVITA AHUJA & OTHERS v. SHIPRA ESTATE LTD. & JAI KRISHNA STATE DEVELOPERS PVT. LTD. & OTHERS Consumer Case No.137 of 2010, decided on 12.02.2015, held the complainants as consumers, observing that the appellant failed to show any cogent evidence, which may indicate that the respondents/complainants or any of them has been indulging in sale purchase of the properties or that the complainants or any one of them had booked the subject plots in the development project undertaken by the appellant with the intention to sell the plot on subsequent date for earning profit. In the instant case also, as already discussed above, there is no evidence led by C.C. No.205 of 2019 10 the opposite parties to prove that the complainant indulged in sale/purchase of properties or that she purchased the plot, in question, for further sale or for earning profits. Accordingly, the above said objection/contention of the opposite parties is rejected and the complainant is held to be 'consumer', under the Act.
12. Now, coming to merits of the case, admittedly, the complainant applied with the opposite party for allotment of a plot and she was declared successful bidder in the draw of lots held on 12.04.2013, as is evident from LoI dated 26.02.2013. She deposited a total sum of Rs.6,00,000/- being initial 25% of the total amount with the opposite parties towards the price of the plot which was fixed at Rs.24,00,000/-, as per terms and conditions of the LoI; as is evident from allotment letter, Ex.C-1. The balance amount of Rs.18,00,000/- could have been paid either in lumpsum without any interest within 60 days from the issue of allotment letter or in six equated half yearly instalments along with an interest @12% per annum as per schedule mentioned in clause 3(ii) of the allotment letter. Allotment Letter, Ex.C-1, was issued in favour of the complainant on 22.11.2016 i.e. after a delay of three years from the issuance of the letter of intent, vide which plot No.132 measuring 400 sq.yds. was allotted to her. As per Clause 4 of the Allotment Letter, the possession of the plot was to be delivered after completion of development works at the site or 18 months from the date of the C.C. No.205 of 2019 11 Allotment Letter, whichever was earlier. The plea of the opposite parties is that they had intimated and offered the possession of the plot, though of changed plot, vide letter dated 05.02.2018, Ex.C-2, and the complainant was further informed to seek possession by 01.03.2018, else, it would be deemed to have been taken. The offer of possession was made within the stipulated period, but the complainant did not come forward to take the same. However, perusal of above said letter shows that the opposite parties changed the location and number of the plot earlier allotted to the complainant and allotted new plot No.1013 on the same terms and conditions of the earlier allotted plot. It is also mentioned in that letter that due to technical reasons and for betterment, during re-planning, draw of lots was again held on 17.01.2018, in which above said plot number was allotted to the complainant. However, no notice has been proved to be given to the complainant before conducting the said draw on 17.01.2018 and, thus, the re- allotment has been done in the absence of the complainant; which has been alleged by the complainant to be wrong, illegal and against the terms of the Brochure and LoI. The opposite parties have produced on record letter dated 27.06.2018, Ex.R- 1, as per which the works of roads have been completed. The perusal of this letter further shows that the pipes of sewerage and water supply have been laid and one tubewell has been installed and the water shall be provided, whenever any C.C. No.205 of 2019 12 demand will be raised by any allottee. It is also mentioned in this letter that the transformer has been installed and H.T./L.T. cables have been laid, but the streetlights are yet to be installed. Even otherwise, this letter is dated 27.06.2018, whereas, the OPs had offered the possession vide their letter dated 05.02.2018 which shows that this letter is of a subsequent date from the date of offer of possession. However, the facts remains there is no Completion/Occupation Certificate produced on record by the opposite parties to prove that the site/plot allotted to the complainant is developed in all respects and is habitable. From the photographs, Ex.R-3, produced by the opposite parties also, it is not clear as to which plot they pertain and on which date the photographs have been taken.
13. It would also be appropriate 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 C.C. No.205 of 2019 13 to carry out itself or in collaboration with any other agency or through any other agency on its behalf, building, engineering, mining and other operations to execute work in connection with supply of water, disposal of sewerage, control of pollution and other services and amenities and generally to do anything with the prior approval or on direction of the State Government, for carrying out the purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing provisions, the Authority itself or in collaboration with any other agency or through any other agency on its behalf:-
(i) if so required by the State Government or the Board, take up the works in connection with the preparation and implementation of Regional Plans, Master Plans and New Township Plans and town improvement schemes;
(ii) undertake the work relating to the amenities and services to be provided in the urban areas, urban estates, promotion of urban development as well as construction of houses;
(iii) promote research, development of new techniques of planning, land development and house construction and manufacture of building material;C.C. No.205 of 2019 14
(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."
Perusal of the above said "Objects and Functions" shows that in pursuance of the same, 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, it has to prepare a proper Scheme, in accordance with the provisions of the Punjab Regional and Town Planning & Development Act, 1995 and presumption is that the Scheme must have been framed, keeping in view the provisions of the said Act. All the financial implications and other things must have been taken care of by PUDA. After considering the pros and cons, the Scheme is supposed to have been launched by the development authority, being a public authority. Taking the same into consideration, the applicant applies for allotment of a plot in such a Scheme, specifically when such a Scheme is launched by the Government Authority for the welfare of the general public. The said Scheme was launched by the opposite parties for the welfare of the general public, so that needy person can have his/her own house, if he/she or his/her spouse or other dependents were not having any house. Keeping in view all C.C. No.205 of 2019 15 these terms and conditions, complainants had purchased the plot from the opposite parties. However, the opposite parties failed to develop the plot earlier allotted to her and changed the said plot with new plot, without issuing any notice to the complainants. Be that as it may, the fact remains that the opposite parties failed to deliver possession of the plot earlier allotted to the complainants within the stipulated period, as per terms and conditions of the LoI and the Allotment Letter. No specific explanation has come forth from the side of the opposite parties regarding non-development of the plot earlier allotted to the complainants and what were the technical reasons behind change of the plot are also not explained.
14. 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, in which same project of the opposite party was involved, it has been held in Para No.12 as follows:
"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 C.C. No.205 of 2019 16 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."
15. It was further held in Para No.14 in Usha Rani's case (supra) as follows:
"It is also relevant to mention that one Prabhjot Singh Sahni R/o Railway Road, Budhlada sought information from the opposite parties, under RTI Act, and the requisite information was supplied, vide letter dated 12.04.2018, Ex.C-6 (filed in Consumer Complaint No.421 of 2018). As per letter dated 06.04.2018 issued by Superintendent Engineer, B.D.A. Bathinda, enclosed with above said letter, the work of Sewerage Treatment Plant, Water Treatment Plant and Storage and Sedimentation Tank was under process; meaning thereby the above said works were not completed till 06.04.2018. Similarly, as per C.C. No.205 of 2019 17 letter dated 09.04.2018, the opposite parties supplied the information that the boundary wall work has been started and that it would be completed within 4 months approximately; meaning thereby the work of boundary wall was also not completed till 09.04.2018. When such was the position, how the opposite party could claim that all the development works in their project were complete on 05.02.2018 when they offered possession of changed plot to the complainant."
16. Thus, from the observations made by this Commission in the above said case, it is clear that the project of the opposite party was incomplete and was not fit for human habitation as on 18.05.2018.
17. Identical issue, pertaining to the similarly situated scheme "PUDA Enclave (Sugar Mill Site), Jagraon" of PUDA, has also been decided by this Commission, vide order dated 01.06.2018, in Aseem Goyal v. Punjab Urban Planning and Development Authority & Ors. Consumer Complaint No.883 of 2017, whereby refund of entire amount deposited by the complainant with the opposite parties towards the price of the plot was allowed, along with interest and compensation. It was held therein that the complainant cannot be made to wait for delivery of possession of the plot for an indefinite period and once the complainant had lost faith in the opposite parties with regard to development of the project and delivery of C.C. No.205 of 2019 18 possession, he was very much within his rights to withhold further payments.
18. Similar issue, pertaining to the same scheme of the opposite party involved in the present complaint, also arose before this Commission in Punjab Urban Planning and Development Authority (now BDA) v. Veena Rani First Appeal No.440 of 2017, which was decided on 18.12.2017, along with bunch of 6 other similar cases; whereby the appeals filed by the appellants/opposite parties were dismissed and the orders passed by the District Forum, allowing refund of entire amount deposited by the complainants, along with interest and compensation, were upheld.
19. Identical issue, pertaining to the same scheme of the opposite party involved in the present complaint, also arose before this Commission in Punjab Urban Planning and Development Authority & Anr. v. Amrik Singh First Appeal No.1287 of 2015, which was decided on 15.11.2016, whereby the appeal filed by the appellants/opposite parties was dismissed, upholding the order of the District Forum, vide which refund of entire deposited of the complainant, along with interest was allowed. Against that order, the opposite parties approached the Hon'ble National Commission, by way of Revision Petition No.500 of 2017 (Punjab Urban Planning and Development Authority & Anr. v. Amrik Singh); which was also dismissed, vide order dated 28.03.2017. In Para No.8 C.C. No.205 of 2019 19 (relevant portion) of the above said judgment, the Hon'ble National Commission held as follows:
8. No doubt, clause 12 of Letter of Intent do provide that the possession of the plot shall be handed over to the allottee after the completion of the development work at the site or within 18 months from the date of issue of allotment letter, whichever is earlier. It is also true that neither the development work has been completed as yet nor any allotment letter has been issued in favour of the complainant who deposited the demanded 15% of the consideration amount in furtherance of Letter of Intent.
The question is does this mean that by providing the stipulation in clause 12, 21 & 22 of Letter of Intent, the opposite party can delay the delivery of possession of subject plot to the complainant for indefinite period?.......... ........................."
20. Similar dispute, pertaining to the same scheme of the opposite party involved in the present complaint, also arose before this Commission in First Appeal No.135 of 2016 (Punjab Urban Planning and Development Authority v. Darshana Devi), which was dismissed, vide order dated 21.11.2016; whereby the order of the District Forum, allowing refund of entire amount deposited by the complainant, along with interest, was upheld. Against that order, the opposite party filed Revision Petition No.499 of 2017 (Punjab Urban Planning and C.C. No.205 of 2019 20 Development Authority v. Darshana Devi) before the Hon'ble National Commission; which was also dismissed, vide order dated 28.03.2017, reported in III (2017) CPJ 134 (NC).
21. The matter did not end there and the opposite party approached the Hon'ble Supreme Court against the said order passed by the Hon'ble National Commission, by way of Special Leave to Appeal (C) No(s).13240/2017 (Punjab Urban Planning and Development Authority v. Darshana Devi). The said Special Leave to Appeal filed by the opposite party was tagged with Special Leave to Appeal No.12438/2017 (Punjab Urban Planning and Development Authority v. Amrik Singh), which was filed against the above said order dated 28.03.2017 passed by the Hon'ble National Commission and both those Special Leave to Appeals were dismissed as withdrawn, with liberty to file review petition, as per order dated 10.07.2017. The Revision Petition No.148 of 2017 titled as "Punjab Urban Planning and Development Authority v. Darshana Devi" filed by the opposite party was also dismissed by the Hon'ble National Commission, vide order dated 17.08.2017.
22. So far as the reliance placed by the opposite party in its reply on Balkar Singh's case (supra) is concerned, it is relevant to mention that the complaint in that case was filed before the District Forum on 14.06.2016 even before issuance of the Allotment Letter dated 06.09.2016, as per which possession C.C. No.205 of 2019 21 was to be delivered on 25.03.2018 and it was, thus, held that the complaint was pre-mature. However, it is not so in the present case.
23. In view of the law laid down by the above noted authorities as well as in view of our above discussion, it stands proved that the opposite party failed to complete the development works at the site and failed to deliver possession of the plot to the complainant, along with promised facilities within the stipulated period, along with Completion/Occupation Certificate. Accordingly, the complainant is entitled to the refund of the amount deposited by her, along with interest at the rate of 12% per annum and suitable compensation, on account of the mental agony and harassment suffered by her on account of the deficiency in service on the part of the opposite parties.
24. In view of our above discussion, the complaint is allowed and the following directions are issued to the opposite parties:
i) to refund the amount of Rs.6,00,000/- along with interest at the rate of 12% per annum from the various dates of deposits till realization.
ii) to pay Rs.20,000/-, as compensation on account of mental agony and harassment suffered by the complainant as well as litigation expenses.C.C. No.205 of 2019 22
25. The compliance of the order passed in the complaint shall be made by the opposite party(s) within a period of 30 days of the receipt of certified copy of the order.
26. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(RAJINDER KUMAR GOYAL) PRESIDING MEMBER (MRS. KIRAN SIBAL) MEMBER September 27, 2019.
SK/-