State Consumer Disputes Redressal Commission
Gurbhupinderjit Singh Walia vs Housefed on 18 November, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH Consumer Complaint No. 136of 2014 Date of Institution 16.10.2014 Date of Decision 18.11.2014 Gurbhupinderjit Singh Walia s/o Ram Naryan Singh, H.No.5416,Sector 38 (W), Chandigarh. ..Complainant. Versus 1. Housefed Punjab, through its Managing Director, SCO No.150-151-152, Sector 34-A, Chandigarh. 2. PUDA, now GMADA, through its Estate Officer, PUDA Bhavan, Sector 62, SAS Nagar, Mohali. ...Opposite Parties. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT SH. DEV RAJ, MEMBER
MRS.
PADMA PANDEY, MEMBER Argued by:Sh.Pankaj Chandgothia, Advocate forthe complainant.
Sh.Dharam Vir Sharma, Senior Advocate assisted by Sh.Naginder Singh, Advocate for Opposite Party No.1.
Sh.G.S.Arshi, Advocate for Opposite Party No.2.
PER PADMA PANDEY, MEMBER In brief, the facts of the case are that the Opposite Parties floated a scheme, for the allotment of residential flats, under the name and style of Cooperative Housing Scheme of Built Up Flats in Sector 79, SAS Nagar, Mohali in January, 2004. Opposite Party No.1 offered five categories of flats namely Category I, II, III, IV and V at the tentative cost of Rs.17.15 lacs, Rs.12.00 lacs, Rs.9.00 lacs, Rs.6.60 lacs and Rs.5.50 lacs respectively. It was stated that the Opposite Parties started promoting the scheme, much before even the actual drawings were prepared and even before the actual grant of licence/permission to develop the land was granted. The last date of submission of applications was fixed as 23.2.2004, according to which, the complainant applied for Category I flat costing Rs.17.15 lacs. It was further stated that since the complainant was in urgent requirement of a residential flat in a developed area, he was taken in by the promises held out by the officials of the Opposite Parties, and the required booking amount of the flat was deposited. Copy of the brochure is Annexure C-1.
2. It was further stated that the payment could be made in easy instalments. The salient features were promised as underground water reservoir, land-scaped lush green lawns, boosted water supply, walled complex with check post, among other things. The Opposite Parties issued an allocation letter of the concerned flat and as per the allotment/allocation letter, there were two options of making payment. Under option No.1, after the initial deposit and registration money, the balance payment to make up 60% of the cost, could be made in eight quarterly equated instalments during the course of construction. The balance, if any, towards difference of final cost and the tentative cost of the flat was to be paid at the time of handing over the possession of flat. Further, the remaining 40% of the tentative cost was to be paid in 120 equated monthly instalments alongwith interest @11% p.a. spread over a period of 10 years, and in the alternative pay the remaining 40% without interest within 30 days from the date of offer of possession of flat. It was further stated that Opposite Party No.1 collected a sum of Rs.10,29,000/- against Rs.17.15 lacs for Category I and was now demanding Rs.44,17,000/- as final cost, as against the allotment price of Rs.17,15,000/-. It was further stated that the increase of Rs.27,02,000/- was exorbitant and unreasonable. It was further stated that rebate of 5% was to be given to the applicants, who paid the entire tentative cost of the flat by 30.6.2004. The eight quarterly instalments were said to be collectable during the course of construction. As per the payment schedule, Housefed was required to start the construction work on or before 30.6.2004. However, the Opposite Parties kept silent about this aspect and kept on collecting the instalments from the complainant. Even the brochure clearly implied that the possession of the flats would be given by March, 2006 i.e. within two years but there was no sign of any construction during this period. Actually, the Opposite Parties kept quiet for over 10 years, which itself amounted to deficiency in service.
3. It was further stated that Opposite Party No.1 wrote a letter dated 8.9.2010 (Annexure C-3) to the representatives of the complainant and admitted that the construction work had already been delayed by 6 years. In fact, Opposite Party No.1 issued the Tender Notice for construction work of the flats, for the first time on 10.3.2010 (Annexure C-4). It was further stated that Opposite Party No.1 did take an option from the allottees in June, 2006, as to whether he/she wanted to retain the flat, in view of the anticipated delay in construction due to some alleged litigation. It was further stated that Opposite Party No.1 had already taken almost 60% of the price of the flat by way of eight equated instalments and the allottees had no real or free choice to opt out at this stage. Therefore, the allottees opted to continue. Moreover, the option was only regarding the reasonable increase in the cost of construction and not anything else. It was further stated that this letter of Housefed was based on an advisory issued by PUDA in October, 2005. It was further stated that the alleged stay order, upon which, the Opposite Parties relied, was issued in September, 2001 and if this order was really applicable on the subject land, then even Opposite Party No.2 could not issue the allotment letter dated 11.3.2002. It was further stated that even there was no mention of such stay in the said allotment letter, which itself shows that the said stay was not applicable to the present land. It was further stated that Opposite Party No.1 was wrong in issuing such an advisory because the actual dispute related to only 3 Kanals 2 Marlas in only one pocket (that of 5.50 acres) out of the two pockets. There was no dispute at all in respect of one pocket of land of 5.49 acres and this pocket of land related to Category I and Category II flats. Therefore, there was no impediment in constructing these categories of flats. It was further stated that the position regarding the land was the same in the year 2004 and in the year 2010 as well as in 2014. It was further stated that, if the Opposite Parties could now construct the flats by leaving out the disputed 3 Kanals 2 Marlas of land, they could also construct the same also in 2004. This wrongful action of the Opposite Parties resulted in heavy expense and loss to the allottees, as it resulted into unnecessary delay in the construction of flats and also resulted in avoidable increase in cost of flats.
4. It was further stated that in July, 2014, Opposite Party No.1 sent a Demand cum Possession Letter (Annexure C-5) to the allottees and the price demanded by Opposite Party No.1 was two and a half times the original tentative price of the flat. It was further stated that in the demand letter, Opposite Party No.1 demanded the balance payment from the complainant and also mentioned that the cost of the flat should be paid on or before 15.9.2014. It was further stated that a very short time of only two months was given to the complainant for making such a huge payment. After making the payment, he was to be given possession of the flat on or before 15.9.2014.
5. It was further stated that the complainant, in good faith, kept on paying the due instalments, as per brochure, from time to time, but the Opposite Parties did not adhere to their duties of completing the construction within the promised time of two years. It was further stated that there was inordinate delay in the completion of project by over eight years and the complainant could not be penalised for the delay caused by the Opposite Parties. It was further stated that even till the filing of the complaint the project was not complete or habitable as there was no permanent electricity connection, parking slots were also not finalised, no completion certificate was issued to the Housefed, no sewerage connection was also available and it also lacked environmental clearance by the Concerned Authority. It was further stated that the flats were not built, as per the specifications, promised in the brochure. It was further stated that the final call-up letter was illegal and invalid. It was further stated that the Opposite Parties were deficient, in rendering service, as also, indulged into unfair trade practice.
When the grievance of the complainant was not redressed, left with no alternative, a complaint under the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed for directing the Opposite Parties to produce its accounts and inform the detailed calculations as to how the final price was arrived at ; to withdraw the demand raised vide letter Final Demand/Possession letter Annexure C-5 and raise it afresh after the grant of Occupation Certificate by the competent authority and after the flats are ready in all respects ; withdraw all demands of money which were illegal and not as per the allotment letter ; to re-calculate the price payable, after deducting the wrong amounts added in the calculation and raise a fresh demand letter after the flats are complete in all respects ; pay Rs.20,00,000/- as compensation for mental and physical harassment ; interest @18% p.a. on the amounts deposited by the complainant ; Rs.1 lakh as deterrent damages for adopting various unfair trade practices ; Rs.1 lakh as punitive damages and to pay Rs.25,000/- as litigation cost.
6. In its written statement, Opposite Party No.1, stated that Punjab Urban Planning and Development Authority, SAS Nagar, Mohali (in short PUDA), now known as Greater Mohali Area Development Authority (in short GMADA) allotted two sites measuring 5.50 acres and 5.49 acres of land on free-hold basis for construction of flats/dwelling unit in Sector 79, Urban Estate, SAS Nagar in two pockets vide memo No.5076 dated 11.3.2003 (Annexure OP-1/1). It was further stated that the scheme for construction of 5 different categories of flats was formulated and launched on 30.1.2004. The scheme remained open upto 23.2.2004. It was further stated that Sh.Kirpal Singh son of Sh.Prem Singh applied for allotment of Category I flat vide application form dated 23.2.2004. In the draw of lots, Sh.Kirpal Singh was successful and he was issued a letter for allocation of Category I flat at Cooperative Housing Complex, Sector 79, SAS Nagar, Mohali (Pocket I) vide No.Housefed/TW/3889 dated 24.03.2004 (Annexure OP-1/2). The complainant alongwith others purchased the allocation of Category I flat from Mrs.Mandeep Kaur, who had purchased the allocation from its original allottee Sh.Kirpal Singh and, accordingly, a re-allocation letter dated 31.8.2012 (Annexure OP-1/3) was issued in favour of the complainant and others on the same terms and conditions, on which, the allocation was made to the original allottee. It was further stated that after completing all the formalities, the building plans were submitted on 22.6.2004 and 15.6.2004 and the building plans were approved in respect of Category III, IV and V on 20.12.2004 (Annexure OP-1/4) and in respect of Category I and II on 14.1.2005 (Annexure OP-1/5) by the Estate Officer, PUDA, Mohali.
7. It was further stated that the Chairman of the Supervisory Committee of Housefed, Punjab wrote a DO letter dated 19.1.2005 regarding handing over the physical possession of the plots of the land measuring 10.99 acres. Although a paper formality had been done by PUDA regarding demarcation, yet no physical possession was issued, as is evident from a DO letter dated 29.4.2005 (Annexure OP-1/6), written by the Additional Chief Administrator (HQ/Policy) informing that the development works in Sector 79 were yet to be completed because the land for the development of Sectors 76-80 was under litigation. The Superintending Engineer, Housefed wrote a letter dated 24.5.2005 (Annexure OP-1/7) regarding demarcation of land of Pocket B at Cooperative Housing Complex, Sector 79, Mohali to the Additional Chief Administrator, Headquarters/Policy, PUDA, Mohali. It was pointed out that demarcation of land of Pocket A (Category I and II) had already been given to the Housefed by the SDO(Buildings), PUDA vide letter dated 21.3.2005 but demarcation of land of Pocket B (Category III, IV and V) had not been given. Therefore, a request was made to give the demarcation of the land, which was free from litigation because the Housefed wanted to start the construction on the land. It was further stated that the Additional Chief Administrator (Policy), PUDA wrote a letter dated 7.10.2005 (Annexure OP-1/8) to the Managing Director, Housefed stating that the writ petition against the acquisition of land for Sectors 76-80 was pending in the Honble High Court and, therefore, Housefed was requested not to start the construction for the time being on both the pockets. It was further stated that the matter was considered by the Board of Directors of the Housefed in its meeting held on 19.5.2006 (Annexure OP-1/9) and decided to inform the allottees about the status and, accordingly, the allottees were informed through registered post as well as by public notices that PUDA had directed the Housefed not to undertake any construction work at the site due to the litigation pending in the Honble High Court.
8. It was further stated that as the Court proceedings would have taken unspecified time, resulting in delay of execution of the project, which was likely to cause substantial increase in the cost of flats on account of escalation in the construction cost and the Housefed would not be able to provide the flats at the cost mentioned in the brochure. Thereafter, an option was given to the complainant either to withdraw the money deposited towards the flat alongwith interest @10% p.a. or to give their consent to retain the flat at the enhanced cost, which would be intimated during the course of construction/after the construction of flats. Accordingly, the complainant submitted an undertaking, which was received on 07.07.2006 to retain the flat and pay the remaining balance towards the enhanced cost, as fixed by the Housefed, during the course of construction/after completion of construction of the project. It was further stated that the cost of flats mentioned in the brochure was tentative, as is evident from Clause 7 of the brochure. The Housefed sent a DO letter dated 17.10.2007 to the Chief Administrator, GMADA, Mohali for permission to start the construction of the flats on the land allotted to Housefed in Sector 79, Mohali but in response to this letter, the Estate Officer, GMADA, Mohali sent a memo dated 27.3.2008 (Annexure OP-1/12), in which, it was stated that the Engineering Wing of GMADA reported that due to stay granted by the Honble Punjab and Haryana High Court in the area falling on sector dividing the road between Sectors 79-80, the sewer line could not be made through. Therefore, both the sites were not feasible and, as such, permission for construction of flats could not be given. The Housefed again wrote letters dated 29.5.2008 and 17.12.2008 to GMADA for permission to start the construction but GMADA again reiterated its earlier stand. Ultimately, vide memos dated 21.10.2009 (Annexure OP-1/14) and dated 24.2.2010, the Estate Officer and Additional Chief Administrator, GMADA permitted the Housefed to start the construction.
9. It was further stated that the land measuring 3 Kanals 2 Marlas was still under litigation, therefore, Housefed was restrained from raising any construction over 3 Kanals 2 Marlas of land. The demarcation of land was given to the Housefed on 22.1.2010 (Annexure OP-1/15) by the Junior Engineer of GMADA. The work for the construction of the flats was allotted to the agency on 16.7.2010 but due to fraud allegedly committed by the agency in the tender process, their tenders were cancelled on 31.5.2012 and the balance work was got executed from a new agency. It was further stated that after the completion of construction work on 31.3.2014, per unit cost of the flat was worked out, which comes to Rs.1992/- per sq. ft., as per the details Annexure OP-1/16. It was further stated that draw of specific flat and floor number was held in June, 2014 and letters of allotment were sent to the allottees on 14/15.7.2014 with the request to deposit the balance amount of their respective category by 15.9.2014 and take the physical possession of the flat. The last date for deposit was extended upto 31.10.2014 and in the meantime, the instant complaint was filed. It was further stated that the present complaint was liable to be dismissed, because a specific undertaking was given by the complainant to retain the flat at the cost, which would be worked out at the time of completion of the flat. It was further stated that this Commission has no territorial jurisdiction to entertain the complaint because the flats are situated in Mohali and the land was allotted in Mohali. It was further stated that Opposite Party No.1 was neither deficient, in rendering service nor indulged into unfair trade practice. The remaining averments were denied, being false.
10. In its written statement, Opposite Party No.2, stated that the complaint is liable to be dismissed because this Commission has no territorial jurisdiction to entertain and try the complaint against it, as Opposite Party No.2 has neither any office nor any business within the jurisdiction of this Commission. It was further stated that Opposite Party No.2 only allotted the land to Opposite Party No.1 for construction of Multi-Storeyed flats/dwelling units subject to the terms and conditions of allotment letter. The payments were collected by Opposite Party No.1. It was further stated that some area approximately 3 Kanals 2 Marlas falling in site IV was under litigation and, therefore, its demarcation could not be given. However, Opposite Party No.1 submitted the building plan for approval on 12.4.2004 and the same was approved vide letter dated 7.6.2004 (Annexure R-2/1) but the Additional Chief Administrator (Policy) PUDA stopped the construction on sites allotted to Opposite Party No.1 on account of litigation pending in the Honble High Court regarding acquisition of land in Sectors 76 to 80 of SAS Nagar vide its letter dated 7.10.2005 (Annexure R-2/2).
11. It was further stated that Opposite Party No.1 was seeking permission to raise construction on the sites allotted to it. The matter regarding permission to raise construction was examined in detail and Opposite Party No.2 vide its letter dated 27.3.2008 (Annexure R-2/3) intimated Opposite Party No.1 that the sites allotted to it were not feasible with reference to sewer line. It was further stated that due to the stay granted by the Honble Punjab and Haryana High Court, in the area falling on sector dividing the road between Sectors 79-80, the sewer lines could not be made through. Thereafter, it was decided to permit Opposite Party No.1 to raise the construction at site IV after leaving the area of 3 Kanal 2 Marla under litigation, as per approved plan. It was decided that Opposite Party No.1 could raise the construction at its risk, and cost, because the certain area of road connecting the sites II and IV came under stay and public health and civil connectivity to these pockets could not be provided. It was further stated that Opposite Party No.1 was to be responsible for damages/compensation if the allottee approached the Court for lack of public health and civil services in the area. It was further stated that Opposite Party No.1 was asked to furnish undertaking in the forms of affidavit but it failed to do so. Thereafter, Opposite Party No.1 was again vide letter dated 21.1.2010 (Annexure R-2/4) asked to furnish an undertaking so that permission to raise construction on these sites could be given but Opposite Party No.1 vide its letter dated 16.2.2010 intimated that it had made provision of sump for disposal of sewer and would raise its construction at its own level. Opposite Party No.2 after considering the undertaking of Opposite Party No.1 to make temporary arrangement of sump at its own level gave the permission to raise construction vide letter bearing No.7206-7208 dated 24.2.2010 (Annexure R-2/5). It was further stated that Opposite Party No.2 was not responsible for the alleged delay in raising construction by Opposite Party No.1. The complainant did not avail services from answering Opposite Party and hence Opposite Party No.2 was neither deficient, in rendering service nor indulged into unfair trade practice. The remaining averments were denied, being false.
12. In his rejoinder, the complainant has reiterated the allegations contained in the complaint. It was stated that the alleged undertaking taken before July, 2006 cannot be said to be applicable forever. Moreover, the said undertaking was obtained by mis-representation of facts by the Opposite Parties. It was further stated that there was no litigation, whatsoever, regarding the site (Pocket I) where the complainants flat was to be constructed, as admitted by the Opposite Parties themselves. It was further stated that there was no stay granted by any Court of law, which prevented the Opposite Parties from raising construction. It was further stated that the dispute, if any, only related to 3 kanals 2 marlas of land in Pocket II, where Category III, IV and V flats were to be constructed. It was further stated that the complainant is not challenging the price/cost of the flat per se and he is claiming compensation for the losses and harassment caused due to the unreasonable delay of over 8 years in offering possession and that too incomplete, as there was no sanctioned electricity, water, sewerage connections to the flats even today. It was further stated that Opposite Party No.1 did not receive the completion certificate regarding the flats from the competent authorities, as mandated by the PAPRA Act and also by the allotment letter issued by PUDA.
13. The Partiesled evidence, in support of their case.
14. We have heard the Counsel for the parties, and have gone through the evidence and record of the caseand written arguments, carefully.
15. The Counsel for the complainant has submitted that the complainant applied for category I flat to the Housefed in 2004 costing Rs.17.15 lacs. He has further submitted that there was no dispute with regard to the land on which category I and II flats were to be constructed and dispute was only with regard to the land on which the flats of category III, IV and V were to be constructed. He further submitted that there was a longdelay in raising construction of the flats of category I allotted to the complainant and ultimately possession was offered on 14.7.2014 to him. He further submitted that for such a delay in delivering possession the complainant was entitled to compensation. He further submitted that even the price has been demanded in respect of the flat with interest @12%p.a., whereas,at the time of allotment the interest was claimed @11% p.a. He further submitted that even the amenities relating to the flat, in question, havenot been provided by the Opposite Parties,as Occupation certificate has not been obtained from GMADA,nor there has beenany permanent arrangement for supply of electricity, water etc. He has further submitted that,as such offer of possession was nothing but a farce one. He,however, admitted that Opposite Party No.1, agreed that allottee i.e. the complainant may pay the remaining 40% priceof the flat, in question, in 120 equated monthly instalments and thus no dispute now exists in respect of the said relief,which has been sought by the complainant. He has further submitted that the complainant was, thus, entitled to compensation for delay in delivering possession and for not providing amenities.
16. On the other hand,the Counsel for Opposite Party No.1 submitted that the allotment of flat was made to the complainant vide allotment letter 14.7.2014 (Annexure C-5). He further submitted that plans were approved by the GMADA. He has further submitted that there was a dispute with regard to the entire land, on which, the flats were to be constructed. He further submitted that the demarcation of land, on which, flats of category I and II were to be constructed, was made by Opposite Party No.2 but actual possession was not given. Actual allotment of the land was given to Opposite Party No.1 (Housefed) by Opposite Party No.2 (GMADA) on 11.03.2003, as is evident from Annexure OP-1/1.He further submitted that, thereafter, permission was not given by Opposite Party No.2 to raise construction over the land, in question, as there was litigation pending in the High Court. He further submitted that on account of this reason,the construction could not be immediately raised.
He further submitted that ultimately when the permission was granted by Opposite Party No.2, for construction of the flats at its own risk and responsibility, Opposite Party No.1 started raising construction. He further submitted that even prior to grant of permission, when the litigation was already pending in the High Court,with regard to the land, in question, the notice was given to the complainant that on account of litigation, it was not possible for Opposite Party No.1 to raise construction immediately and if he wanted he couldwait till the litigation was decided or hemay opt to retain the flat, orhe may choose to get refund of the amount alongwith interest @10% p.a. He further submitted that the complainant gave an undertaking to the effect that he wanted to retain the flat and would pay the actual cost of the flat during the course of construction or after completion of the same. He further submitted that, thus, there was no delay on the part of Opposite Party No.1,in starting the construction and completion of the same. He further submitted that in view of the undertaking given by the complainant, Opposite Party No.1,could not be said to be deficient, in rendering service. He further submitted that, as such, Opposite Party No.1 is not liable to pay any compensation for the alleged delay, which could not be attributable to it,but only due to the litigation, which was pending , resulting in delay of giving of permission by Opposite Party No.2. He further submitted that Opposite Party No.1 has already assured the complainant and other allotteesthat they could pay the remaining sale consideration of the flat in 120 equated monthly instalments , at the time of delivery of possession of flat and, thus, grievance of the complainant to this extent already stood redressed.
17. Counsel for the Opposite Party No.2,submitted that since the land was underlitigation, permission could not be grantedearlier. Subsequently, permission was granted for raising construction to Opposite Party No.1 at its own risk and responsibility.
18. After giving our thoughtful consideration, to the submissions, raised by the Counsel for the parties, and the evidence, on record, we are of the considered opinion, that the complaint is liable to be dismissed, for the reasons to be recorded, hereinafter.
19. Admittedly, the Opposite Parties floated a scheme under the name and style of Cooperative Housing Scheme of Built Up Flats at Sector 79, SAS Nagar, Mohali in January, 2004 and the last date of submission of the applicationswas 23.2.2004, as per the brochure (Annexure C-1). Sh.KirpalSingh son of Sh.PremSingh applied for the allotment of Category I flat vide application form dated 23.2.2004 in the scheme floated by the Housefed. He was successful in the draw of lots. Sh.KirpalSinghwas issued a letter dated 24.3.2004 (Annexure OP-1/2) forallocation of Category I flat inCooperative Housing Complex, Sector 79, SAS Nagar, Mohali (Pocket I).The complainant alongwith others purchased the allocation of Category I flat from Mrs.Mandeep Kaur, who had purchased the same (allocation) from its original allottee Sh.Kirpal Singh and, accordingly, a re-allocation letter dated 31.8.2012 (Annexure OP-1/3) was issued in his favour and others on the same terms and conditions, on which, the allocation was made to the original allottee. It is also the admitted fact that the tentative cost of the said flat was Rs.17,15,000/-.
20. The first question, which falls for consideration, is, as to whether, there was unreasonable delay of over eight years in handing over the possession of the flat and that too incomplete, as according to the complainant, there were no electricity, water and sewerage connections to the flats. The answer to this question, is in the negative. No doubt,there is no letterspecifically mentioning,regarding giving of the physical possession of the land, in question, on record, to Housefedbut a perusal of the letter dated 7.10.2005 (Annexure OP-1/8), written by PUDA (now GMADA) to Housefed, had mentioned that no construction would be possible on the pockets of land allotted to Opposite Party No.1, in view of the litigation pending in the Honble High Court of Punjab and Haryana.
It is an admitted fact that Housefed wantedtoraisethe construction but the same was stopped by GMADA due to pendency of litigation in the Honble High Court of Punjab and Haryana and, as such, it can be presumed that GMADA hadalready delivered the physical possession of the land, in question, to Housefed.Moreover, themain reason fordelay of the entire project was due tonon-handing over the physical possession and due to lack of permission byGMADA to raise construction. The documentary evidence (Annexure OP-1/6) clearly shows that the entire acquired land for Urban Estate Sectors 76-80 was under litigation in the Honble High Court of Punjab and Haryana. As per the written synopsis of Opposite Party No.1, presently, only 3 kanals 2 marlas remains under litigation of Sector 79 and the Civil Appeal is pending in the Honble Supreme Court of India. Opposite Party No.1(Housefed)sent a letter dated 19.1.2005 to Opposite Party No.2(GMADA)regarding handing over the physical possession of the plots of land measuring 10.99 acres.As per the written statement of Opposite Party No.1 (Housefed) although a paper formality had been done by GMADA regarding demarcation certificate, yet no physical possession had been issued, as is evident from a DO letter dated 29.4.2005 (Annexure OP-1/6), written by Additional Chief Administrator (HQ/Policy)to Additional Registrar (Admn.) Co-operative Societies, Punjab, Chandigarh & Chairman Supervisory Committee, Housefed, Punjab informing that thedevelopment works in Sector 79 were yet to be completed because the land acquired for the development of Sectors 76-80 wasstill under litigationand earnest efforts were being made to get the legal bottle necks removed at the earnest. Once this is done, PUDA (now GMADA) will be in a position to handover the possession of the allotted land to Housefed. From the perusal of the letter dated 7.10.2005 (Annexure OP-1/8), written by the Additional Chief Administrator (Policy), PUDA to the Managing Director, Housefed, it is apparently clear that due to the pendency of the matter in the Honble High Court against the acquisition of land,for Urban Estate 76-80 Mohali, permission could not begranted for raising construction on both the pockets. A perusal of the said letter would show that PUDA (now GMADA), who had allotted the land had restrained the Housefed from raising any construction on the land allotted to the Housefed. Thereafter, Opposite Party No.1 sent a DO letter dated 17.10.2007 to Opposite Party No.2 for permission to start the construction and in response to this letter, Opposite Party No.2 sent a memo dated 27.3.2008 (Annexure OP-1/12) stating that the Engineering Wing of GMADA (Opposite Party No.2) hadreported that due to stay granted by the Punjab and Haryana High Court in the area of falling on sector dividing road between Sectors79-80, the sewer line could not be made through and, therefore, both the sites were not feasible with reference to sewer line and, as such, permission for construction of flats could not be granted. Opposite Party No.1 again sent a letter dated 29.5.2008 to Opposite Party No.2 for permission to start the construction of the flats but Opposite Party No.2 again reiterated its earlier standvide memo dated 11.7.2008 (Annexure OP-1/13). Thereafter, Opposite Party No.1 again sent a letter dated 17.12.2008 to Opposite Party No.2 for permission to start the construction of the flats but Opposite Party No.1 was informed that the matter was listed before the Honble High Court of Punjab and Haryana on 16.3.2009. Ultimately, Opposite Party No.2 (GMADA) vide letterdated 24.02.2010(Annexure R-2/5) permitted the Housefed to start construction on the allotted landat its own risk. It was further submitted that the land measuring 3 Kanals 2 Marlas was under litigation, therefore, Housefed was restrained from raising any construction activity, which included public health services etc.over the disputed land measuring 3 Kanals2 Marlas, due to the stay by the Honble High Court.
21. The next contention of the complainant is that it was only in July, 2014 that Opposite Party No.1 sent the demand-cum-possession letter (Annexure C-5) to the allottees and the price being demanded by the Housefed was two and a half times the original tentative price of the flat and it was not laid down in the brochure. It is pertinent to mention that the Housefed offered physical possession to the allottees/transferees vide letter dated 14.7.2014 (Annexure C-5). Although the possession was to be taken by the allottees before 15.9.2014, yet this date hadbeen extended to 31.10.2014. Moreover, in the year 2004, only allocation letters were issued to the allottees, as is evident from Annexure OP-1/2, and not allotment letters. The Housefed had given the consent in favour of the allottees, who were issued the allocation letters. This clearly shows that Housefed was serious in implementing the project, otherwise the project could have been abandoned and fresh claims could have been invited.
22. To sum up, we find from the record thatthe matter was considered by the Board of Directors of the Housefed in its meeting held on 19.5.2006 (Annexure OP-1/9) and it was decided to inform the allottees about the status through registered post as well as by public notices that PUDA had directed the Housefed not to undertake any construction work at the site,due to the litigation pending in the High Courtand, assuch, notices weregiven to the applicantsthrough registered post, informing that the Court proceedings might take unspecifiedtime,resulting in delay of execution of project, which was likely to cause substantial increase in the cost of flats,due to considerable increase in the prices of building materialsetc. and, as such, Housefed will not be able to provide the flats at the cost quoted in the brochure. Therefore, the allottees were given an option to either withdraw the earnest money deposited towards the flat alongwith interest @10% p.a. or give their consent to retain the flat at the enhanced cost, which would be finalised during the course of construction or after the construction of flats.
23. It may be stated here that the cost of flats mentioned in the brochure was tentative, which is evident from Clause 7 of the brochure, which reads as under :-
The exact/final cost of the flat shall be worked out after the flats have been completed but before handing over the flat. The cost difference due to allotment of floor, change in covered area of flat or due to any other reason whatsoever, the same shall be payable by the allottee at the time of possession. The price is liable to increase due to variation in plinth area, scope of work, change in specification, design, increase in cost of land, rate of interest, amountof interest increase the cost of raw materials or for any other reason and the same shall be binding upon the allottee.
24. Since the complainant had exercised the option to retain the allotment of flat and pay the price,hecannot raise any grievance with regard to the increase in price against the Opposite Parties. In view of the undertaking given by the original allottee to the effect that the flat, in question, was to be retained by himand he was bound to pay the remaining balance towards enhanced cost as fixed by the Housefed during the course of construction/after completion of construction of Project, the complainant being the subsequent owner due to transfer of the flat, in question, in his favour, is bound by the same.As such,the complainant is estopped from making any grievance against the Opposite Parties, once an undertaking was given. Even the Housefed still offers that,whosoever,wants to take back his/heramount, the same can be done and no deduction shall be made. As such, we are of the considered opinion that there is no deficiency in renderingservice on the part of Opposite Parties.
25. So far as the next contention of the complainant with regard to non providing of basic amenitiesby the Opposite Parties,is concerned, it has been stated by Opposite Party No.1 in its written statement that as regards the electricity connection, the allottee has to apply and take the same in his own name. Some of the allottees started living in the flats and they wereprovided the booster water supply. Opposite Party No.1 denied the contention of the complainant that the parking slots were not final. However, it was submitted that as per brochure, no allottee was to be allotted separate parking space. Opposite Party No.1 submitted that after completion of the project, it submitted all the necessary documents to GMADA and the GMADA never raised any objection for issuance of Completion Certificate in this regard. Opposite Party No.1 denied the contention of the complainant that the project lacks environmental clearance by the concerned authorities and stated that no project could be started without the environmental clearance. Even Opposite Party No.1 requestedOpposite Party No.2 a number of times for permission to start the construction but Opposite Party No.2 did not grant the permission for raising any construction due to litigation pending in the Honble High Court of Punjab and Haryana. Ultimately,Opposite Party No.2 granted the permission to Opposite Party No.1 for raising the construction on the allotted land vide letter dated 24.02.2010(Annexure R-2/5)but at its own risk. Opposite Party No.1 raised the construction of flats, at its own risk,and the physical possession of the flat was given/offeredto the complainant vide letter No.Hfed/TW/4932 dated 14.7.2014 (Annexure C-5).Even otherwise, the complainant has failed to produce any evidenceto the effect that the basic amenities have not been provided by the Opposite Parties. Thus, the Opposite Parties did not indulge into any unfair trade practice and the complaint deserves to be dismissed.
26. For the reasons recorded above, the complaint, being devoid of merit, must fail and the same stands dismissed, with no order as to costs.
27. Certified Copies of this order be sent to the parties, free of charge.
28. The file be consigned to Record Room, after completion.
Pronounced.
18.11.2014 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER rb STATE COMMISSION Consumer Complaint No.136 of 2014 Argued by:Sh.Pankaj Chandgothia, Advocate for the complainant.
Sh.Dharam Vir Sharma, Senior Advocate assisted by Sh.Naginder Singh, Advocate for Opposite Party No.1.
Sh.G.S.Arshi, Advocate for Opposite Party No.2.
Dated _the _18th day of November, 2014 Vide our detailed order of even date recorded separately, the complaint has been dismissed, with no order as to costs.
[DEV RAJ] MEMBER [JUSTICE SHAM SUNDER (RETD)] PRESIDENT [PADMA PANDEY] MEMBER rb