State Consumer Disputes Redressal Commission
Indu Aggarwal vs Nitishree Infrastructure on 7 April, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
1) First Appeal No.1668 of 2014
Date of institution : 26.12.2014
Date of decision : 07.04.2017
Indu Aggarwal R/o EF 164/C, Mandi Road, Jalandhar City.
....Appellant/Complainant
Versus
1. Nitishree Infrastructure Limited, through its M.D./Chairman,
B-111, Sector-5, Noida (U.P.).
2. Anil Kumar Jain, Director, Nitishree Infrastructure Limited, B-
111, Sector-5, Noida (U.P.).
3. Ankur Jain, Director, Nitishree Infrastructure Limited, B-111,
Sector-5, Noida (U.P.).
4. Nitishree Infrastructure Limited, Shourya Greens, Surya
Enclave, Amritsar Bypass Road, near Trinity College,
Jalandhar.
5. Jalandhar Development Authority, through its Manager, SCO
41, PUDA Complex, opp. Tehsil Complex, Ladowali Road,
Jalandhar.
6. Punjab State, through its Secretary, Chandigarh.
7. Punjab State Power Corporation Ltd., through its Chairman,
The Mall, Patiala.
....Respondents/Opposite Parties
2) First Appeal No.1669 of 2014
Date of institution : 26.12.2014
Date of decision : 07.04.2017
Indu Aggarwal R/o EF 164/C, Mandi Road, Jalandhar City.
....Appellant/Complainant
Versus
First Appeal No.1668 of 2014 2
1. Nitishree Infrastructure Limited, through its M.D./Chairman,
B-111, Sector-5, Noida (U.P.).
2. Anil Kumar Jain, Director, Nitishree Infrastructure Limited, B-
111, Sector-5, Noida (U.P.).
3. Ankur Jain, Director, Nitishree Infrastructure Limited, B-111,
Sector-5, Noida (U.P.).
4. Nitishree Infrastructure Limited, Shourya Greens, Surya
Enclave, Amritsar Bypass Road, near Trinity College,
Jalandhar.
5. Jalandhar Development Authority, through its Manager, SCO
41, PUDA Complex, opp. Tehsil Complex, Ladowali Road,
Jalandhar.
6. Punjab State, through its Secretary, Chandigarh.
7. Punjab State Power Corporation Ltd., through its Chairman,
The Mall, Patiala.
....Respondents/Opposite Parties
3) First Appeal No.1670 of 2014
Date of institution : 26.12.2014
Date of decision : 07.04.2017
Nitin Aggarwal R/o EF 164/C, Mandi Road, Jalandhar City.
....Appellant/Complainant
Versus
1. Nitishree Infrastructure Limited, through its M.D./Chairman,
B-111, Sector-5, Noida (U.P.).
2. Anil Kumar Jain, Director, Nitishree Infrastructure Limited, B-
111, Sector-5, Noida (U.P.).
3. Ankur Jain, Director, Nitishree Infrastructure Limited, B-111,
Sector-5, Noida (U.P.).
4. Nitishree Infrastructure Limited, Shourya Greens, Surya
Enclave, Amritsar Bypass Road, near Trinity College,
Jalandhar.
First Appeal No.1668 of 2014 3
5. Jalandhar Development Authority, through its Manager, SCO
41, PUDA Complex, opp. Tehsil Complex, Ladowali Road,
Jalandhar.
6. Punjab State, through its Secretary, Chandigarh.
7. Punjab State Power Corporation Ltd., through its Chairman,
The Mall, Patiala.
....Respondents/Opposite Parties
4) First Appeal No.1671 of 2014
Date of institution : 26.12.2014
Date of decision : 07.04.2017
Nitin Aggarwal R/o EF 164/C, Mandi Road, Jalandhar City.
....Appellant/Complainant
Versus
1. Nitishree Infrastructure Limited, through its M.D./Chairman,
B-111, Sector-5, Noida (U.P.).
2. Anil Kumar Jain, Director, Nitishree Infrastructure Limited, B-
111, Sector-5, Noida (U.P.).
3. Ankur Jain, Director, Nitishree Infrastructure Limited, B-111,
Sector-5, Noida (U.P.).
4. Nitishree Infrastructure Limited, Shourya Greens, Surya
Enclave, Amritsar Bypass Road, near Trinity College,
Jalandhar.
5. Jalandhar Development Authority, through its Manager, SCO
41, PUDA Complex, opp. Tehsil Complex, Ladowali Road,
Jalandhar.
6. Punjab State, through its Secretary, Chandigarh.
7. Punjab State Power Corporation Ltd., through its Chairman,
The Mall, Patiala.
....Respondents/Opposite Parties
First Appeals against the orders dated
25.11.2014 of the District Consumer
Disputes Redressal Forum, Jalandhar.
First Appeal No.1668 of 2014 4
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Harcharan Singh Guram, Member.
Present:-
For the appellant : Sh. Munish Goel, Advocate
For respondents No.1-4 : Sh. Ramneek Gupta, Advocate
For respondent No.5 : Sh. Sahil Khunger, Advocate
for Sh. I.S. Sidhu, Advocate
For respondent No.6 : Ex parte
For respondent No.7 : Sh. A.K. Sharma, Advocate.
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT
This order will dispose of the above mentioned four First Appeals filed against the similar orders dated 25.11.2014 passed by the District Consumer Disputes Redressal Forum, Jalandhar (in short, "the District Forum"), vide which the complaints, under Section 12 of the Consumer Protection Act, 1986, filed by the complainants were disposed of and in each complaint, it was held that opposite parties No.1 to 4 are entitled to external development charges and the complainant is entitled to ₹50,000/-, as damages from opposite parties No.1 to 4. Opposite parties No.1 to 4 were further directed to complete the development work in the scheme, as early as possible. In case of undue delay in developing the scheme area, the complainant would be at liberty to file complaint claiming damages on that score. The facts and the questions of law involved in these complaints are the same. Even the facts of all the complaints are verbatim and were filed against the same opposite parties. The facts are taken from First Appeal No.1668 of 2014. First Appeal No.1668 of 2014 5
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum.
3. Brief facts, as averred in the complaint, are that in the year 2006, opposite parties No.1 to 4 called applications for the sale and registration of residential plot in their proposed project namely "Shourya Greens", Surya Enclave, Jalandhar. The complainant applied for a residential plot of approximately 250 sq.yds. in the said project. At that time, opposite parties No.1 to 4 claimed that they have got licence from opposite party No.6 to develop the said project and there would be no high tension wires passing over or near the whole colony. Allotment letter dated 27.01.2007 was issued by the opposite parties, in which total cost of the plot bearing No.59 was mentioned as ₹12,86,250/- plus ₹1,28,625/-. Out of above amount, the complainant paid ₹6,04,625/- and the balance amount was to be deposited at the time of registration of the plot in her favour after completion of the development work of the said area. Opposite parties No.1 to 4 further assured the complainant that all the development charges, including metalled roads, sewerage supply, street lightening, water supply, electricity supply and other development within the parameter of the colony, shall be borne by opposite parties No.1 to
5. Thereafter, the complainant visited the said opposite parties, regarding the development of the project and registration of the plot in her favour, but they delayed the matter on one pretext or First Appeal No.1668 of 2014 6 the other. In fact, opposite parties No.1 to 4 had not obtained any licence form the Government to develop the above said project. In- spite of this, they issued demand letters dated 31.12.2011, 16.01.2012 and 03.02.2012, raising an illegal demand of ₹3,12,500/- towards development charges plus service tax of ₹32,187/-, besides balance amount from the complainant. The complainant visited their office in this regard, but they refused to accede to her requests. The complainant sought information under Right to Information Act from opposite party No.5, who replied that no development charges have been charged from opposite parties No.1 to 4. Hence, they are not entitled to demand the said charges from the complainant. The complainant further found that high tension wires were passing on the road, touching the boundary of the said plot. Besides this, the poles containing high tension wires are embedded in the main roads of the colony, thereby causing danger to the lives of the complainant and other allottees, besides depreciating the value of the plots. Opposite parties No.1 to 4 in reply to letter dated 09.01.2012 had admitted that they would supply the electricity to the customers within two years of sanction of electric connection by opposite party No.5, which was in contravention to their undertaking given to opposite party No.5 that they would complete all the development work in the said colony upto 22.11.2012. They also claimed that they had obtained licnece from the Government in December, 2011, but they were not having any licence by that time. Even the complainant came to First Appeal No.1668 of 2014 7 know from newspapers 'Mid Day' dated 14.09.2010 and "The Financial Express" dated 14.09.2010 that opposite parties No.1 to 4 were arrested by Noida Police for duping Crores of Rupees in real estate transaction from its customers in Noida. Since opposite parties No.1 to 4 have failed to complete the development work at the site, so they are not entitled to receive balance amount from the complainant. The complainant is ready to pay the amount, in case of completion of development work by them. There was apprehension for the complainant that the opposite parties would illegally cancel her booking. The act and conduct of the opposite parties amounted to deficiency in service and unfair trade practice, due to which the complainant suffered mental tension and harassment. Thus, the complainant approached the District Forum, seeking the following directions to the opposite parties:
i) to restrain the opposite parties from claiming development charges plus service tax thereon;
ii) to complete the entire development works, besides removing the poles containing high tension wires in the colony, before demanding the balance amount;
iii) to reject the letters dated 31.12.2011, 16.01.2012 and 03.02.2012, vide which the illegal demand of development charges of ₹3,12,500/- and service tax of ₹32,187.50P was raised;
iv) to pay ₹5,00,000/- as damages with costs.First Appeal No.1668 of 2014 8
4. The complaint was contested by opposite parties No.1 to 4 by filing their reply, raising preliminary objections that the complaint is not maintainable. The complainant has not come to the District Forum with clean hands and has suppressed the material facts. No cause of action has accrued to the complainant to file this complaint. Earlier the complainant approached the opposite parties for getting one plot in Shourya Greens in the year 2006 and plot No.59 was allotted to her. The complainant deposited part payments thereafter. The opposite parties applied for grant of licence with the Government authorities (PUDA), who took too much time to issue the licence. In the meantime, the development authorities demanded extra development charges from the opposite parties and, thus, the opposite parties are bound to pay the same to the development authorities. Many demand letters were issued to the complainant, vide which the opposite parties demanded the extra development charges (EDC) from her, but till today the complainant has made part payment only. She is not a consumer. She herself failed to fulfil the formalities and discharge her liability. Complex question of law and facts is involved in the complaint, so the District Forum has no jurisdiction to decide the same.
5. On merits, it was pleaded that the opposite parties had specifically made clear to the complainant that they had applied for the licence. No assurance in this regard was given. The allotment letter was issued to the complainant, but she failed to pay the First Appeal No.1668 of 2014 9 balance amount. She also failed to pay the EDC. The opposite parties are developing the area. It was denied that the balance amount was to be paid by the complainant on the development of the colony. It was also denied that all the development charges were to be borne by the opposite parties. It was pleaded that the development authorities have charged the said charges and, thus, the opposite parties have the right to recover the same from the complainant. The opposite parties applied for the licence and the development authorities raised the certain demands from them.
Other allegations of the complaint were denied and dismissal thereof was prayed with costs.
6. Opposite party No.5 appeared through counsel, who made a statement that opposite party No.5 did not want to file written reply, as is clear from the order dated 12.07.2012 of the District Forum. Presence of opposite parties No.6 & 7 was dispensed with.
7. The parties produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, disposed of the complaint, vide impugned order. Dissatisfied by the impugned order, the complainant has come up in this appeal.
8. We have heard learned counsel for the parties and have carefully gone through the records of the case.
9. Learned counsel for the complainant has vehemently contended that the District Forum wrongly held that opposite First Appeal No.1668 of 2014 10 parties No.1 to 4 are entitled to external development charges, irrespective of the fact that no development has taken place at the site. The opposite parties also failed to provide basic amenities in the project. The opposite parties have no licence to develop the colony and, thus, they have no right to recover the development charges. Moreover, the development charges were demanded from the opposite parties in the year 2008, whereas the plot in question was allotted to the complainant in the year 2007. In all these circumstances, the impugned order is required to be modified by way of allowing of this appeal and all the reliefs, as prayed for in the complaint, be allowed.
10. Per contra, learned counsel for opposite parties No.1 to 4 contended that the complainant approached them for getting the plot in the year 2006 and accordingly the plot in question was allotted to her. Thereafter, the part payment was made by her. PUDA authorities delayed granting of licence and in the meantime the development charges were demanded by the development authorities from them. Since the opposite parties are bound to deposit those charges with the development authorities, so they are entitled to recover the same from the complainant and others. The impugned order is legal and valid and the appeal is liable to be dismissed.
11. We have given thoughtful consideration to the contentions raised by the learned counsel for the parties. First Appeal No.1668 of 2014 11
12. Admittedly the plot in question was allotted to the complainant in the project of opposite parties No.1 to 4, vide letter dated 27.01.2007. The total cost of the said plot was ₹12,86,250/- plus ₹1,28,625/-, out of which the complainant deposited ₹6,04,625/-. The controversy between the parties is regarding external development charges of ₹3,12,500/- plus service tax, as demanded by the opposite parties from the complainant. The contention of opposite parties No.1 to 4 is that as per letter dated 28.07.2008 Ex.OP-4, opposite party No.5 demanded EDC at the rate of ₹26,78,000/- per acre, total amounting to ₹1,98,70,780/- which was to be paid in six equated half yearly instalments. Opposite parties paid substantial amount towards the above amount, as per Ex.OP-11. Plea of opposite parties No.1 to 4 is that since the said charges have been paid by them to the development authorities for the development of the project, so the complainant is liable to pay the same to them.
13. It is relevant to mention that vide Provisional Allotment Letter dated 27.01.2007 at page 69 of the District Forum, the complainant was allotted Plot No.59, measuring 250 sq.yds. for the basic sale price of ₹12,86,250/-. It is nowhere mentioned in the said letter that any development charges would be charged in future. The demand of development charges and service tax was raised, vide letter dated 16.01.2011 Ex.C-3. Opposite parties No.1 to 4 applied for issue of Letter of Intent for setting up the colony "Shourya Greens", vide letter dated 14.12.2006 Ex.OP-1. The First Appeal No.1668 of 2014 12 licence Ex.OP-3 was granted to the opposite parties for setting up the said project on 23.12.2011. One Nitin Aggarwal sought information under the Right to Information Act from Jalandhar Development Authority, who vide letter dated 19.01.2012 Ex.C-10 informed while issuing the licence for setting up the colony "Shourya Greens", no EDC/development charges were imposed. The fact remains that the EDC were demanded from the opposite parties after the date of allotment of the plot in question to the complainant. Opposite parties No.1 to 4 caused delay in completing the project and developing the same and if for the said delay in completing the project, the EDC have been levied by the competent authority from opposite parties No.1 to 4, then the complainant cannot be faulted in any manner and cannot be compelled to pay the same to the opposite parties. There was no agreement between opposite parties and the complainant in the year 2006/2007 to pay the EDC or other charges. The opposite parties in fact developed an unauthorized colony and on payment of compounding fee, permission was given in 2011, as is mentioned in Ex.C-10. The EDC charges have been imposed much later after the allotment. Not only this, the service tax itself has been imposed in the year 2011. The complainant was allotted the plot in question, vide letter dated 27.01.2007, and the EDC charges and service tax were imposed later on. Earlier, there were no external development charges in force. Similarly, the service tax was imposed in the year 2011. If the development could have First Appeal No.1668 of 2014 13 been done or the project could have been completed within three years, such burden was not required to be borne by the complainant. Since this is due to the fault of the opposite parties, they are liable for the same. The complainant should not suffer for the lapses, delays and omissions on their part. Floating of the scheme and carving the plots/colony without obtaining licence under the Punjab Apartment and Property Regulation Act, 1995 is an illegal act on the part of opposite parties No.1 to 4. They also failed to obtain the completion certificate and failed to develop the project within reasonable time from the date of allotment. In view of above said facts and circumstances, we are of the view that opposite parties No.1 to 4 were not legally entitled to recover the EDC or service tax from the complainant and others.
14. So far as the remaining part of the impugned order is concerned, the same is legal and valid and there is no ground to interfere with the same.
15. Accordingly, the appeal is allowed and the impugned order is modified to the extent that opposite parties No.1 to 4 are not entitled to recover external development charges or service tax from the complainant. The remaining part of the impugned order is upheld.
First Appeal No.1669 of 2014
16. Similarly, in First Appeal No.1669 of 2014 (Indu Aggarwal Vs. Nitishree Infrastructure Limited & Others), the complainant was allotted plot No.7, vide allotment letter dated First Appeal No.1668 of 2014 14 09.05.2007, for the total cost of ₹10,20,313/-. Out of the said amount, the complainant paid ₹2,00,000/- to opposite parties No.1 to 4. They failed to develop the project. Vide letters dated 31.12.2011, 16.01.2012, 03.02.2012 and 21.02.2012, opposite parties No.1 to 4 raised illegal demand of ₹3,12,500/- towards development charges and service tax. Accordingly, the complainant approached the District Forum, seeking following directions to the opposite parties:
i) to restrain the opposite parties from claiming development charges plus service tax thereon;
ii) to complete the entire development works, besides removing the poles containing high tension wires in the colony before demanding the balance amount;
iii) to reject the letters dated 31.12.2011, 16.01.2012, 03.02.2012 and 21.02.2012, vide which the illegal demand of development charges of ₹3,12,500/- and service tax of ₹32,187.50P was raised;
iv) to pay ₹5,00,000/- as damages with costs.
17. Upon notice, opposite parties No.1 to 4 filed reply before the District Forum, on the similar lines of their reply as given in F.A. No.1668 of 2014. Opposite party No.5 did not file any reply and service of opposite parties No.6 & 7 was dispensed with.
18. The District Forum after going through the evidence led by the parties and hearing learned counsel on their behalf, First Appeal No.1668 of 2014 15 disposed of the complaint, vide impugned order. Dissatisfied by the impugned order, the complainant has come up in this appeal.
19. In view of the reasons and discussion held in First Appeal No.1668 of 2014 (Indu Aggarwal Vs. Nitishree Infrastructure Limited & Ors.), this appeal i.e. First Appeal No.1669 of 2014 (Indu Aggarwal Vs. Nitishree Infrastructure Limited & Ors.) is allowed and the impugned order is modified to the extent that opposite parties No.1 to 4 are not entitled to recover external development charges or service tax from the complainant. The remaining part of the impugned order is upheld. First Appeal No.1670 of 2014
20. Similarly, in First Appeal No.1670 of 2014 (Nitin Aggarwal Vs. Nitishree Infrastructure Limited & Others), the complainant was allotted plot No.55, vide allotment letter dated 09.05.2007, for the total cost of ₹10,19,688/-. Out of the said amount, the complainant paid ₹2,00,000/- to opposite parties No.1 to 4. They failed to develop the project. Vide letters dated 31.12.2011, 16.01.2012, 03.02.2012 and 21.02.2012, opposite parties No.1 to 4 raised illegal demand of ₹3,12,500/- towards development charges and service tax. Accordingly, the complainant approached the District Forum, seeking following directions to the opposite parties:
i) to restrain the opposite parties from claiming development charges plus service tax thereon;First Appeal No.1668 of 2014 16
ii) to complete the entire development works, besides removing the poles containing high tension wires in the colony before demanding the balance amount;
iii) to reject the letters dated 31.12.2011, 16.01.2012, 03.02.2012 and 21.02.2012, vide which the illegal demand of development charges of ₹3,12,500/- and service tax of ₹32,187.50P was raised;
iv) to pay ₹5,00,000/- as damages with costs.
21. Upon notice, opposite parties No.1 to 4 filed reply before the District Forum, on the similar lines of their reply as given in F.A. No.1668 of 2014. Opposite party No.5 did not file any reply and service of opposite parties No.6 & 7 was dispensed with.
22. The District Forum after going through the evidence led by the parties and hearing learned counsel on their behalf, disposed of the complaint, vide impugned order. Dissatisfied by the impugned order, the complainant has come up in this appeal.
23. In view of the reasons and discussion held in First Appeal No.1668 of 2014 (Indu Aggarwal Vs. Nitishree Infrastructure Limited & Ors.), this appeal i.e. First Appeal No.1670 of 2014 (Nitin Aggarwal Vs. Nitishree Infrastructure Limited & Ors.) is allowed and the impugned order is modified to the extent that opposite parties No.1 to 4 are not entitled to recover external development charges or service tax from the complainant. The remaining part of the impugned order is upheld. First Appeal No.1671 of 2014 First Appeal No.1668 of 2014 17
24. Similarly in First Appeal No.1671 of 2014 (Nitin Aggarwal Vs. Nitishree Infrastructure Limited & Others), the complainant was allotted plot No.56, vide allotment letter dated 09.05.2007, for the total cost of ₹12,19,687/-. Out of the said amount, the complainant paid ₹5,00,000/- to opposite parties No.1 to 4. They failed to develop the project. Vide letters dated 31.12.2011, 16.01.2012 and 04.02.2012, opposite parties No.1 to 4 raised illegal demand of ₹3,12,500/- towards development charges and service tax. Accordingly, the complainant approached the District Forum, seeking following directions to the opposite parties:
i) to restrain the opposite parties from claiming development charges plus service tax thereon;
ii) to complete the entire development works, besides removing the poles containing high tension wires in the colony before demanding the balance amount;
iii) to reject the letters dated 31.12.2011, 16.01.2012 and 04.02.2012, vide which the illegal demand of development charges of ₹3,12,500/- and service tax of ₹32,187.50P was raised;
iv) to pay ₹50,000/- as damages with costs.
25. Upon notice, opposite parties No.1 to 4 filed reply before the District Forum, on the similar lines of their reply as given in F.A. No.1668 of 2014. Opposite party No.5 did not file any reply and service of opposite party No.6 was dispensed with. First Appeal No.1668 of 2014 18
26. Opposite parties No.7 filed reply, pleading that it has no objection to install the electric connection to the complainant, subject to the condition that he applies for the same and fulfil the formalities.
27. The District Forum after going through the evidence led by the parties and hearing learned counsel on their behalf, disposed of the complaint, vide impugned order. Dissatisfied by the impugned order, the complainant has come up in this appeal.
28. In view of the reasons and discussion held in First Appeal No.1668 of 2014 (Indu Aggarwal Vs. Nitishree Infrastructure Limited & Ors.), this appeal i.e. First Appeal No.1671 of 2014 (Nitin Aggarwal Vs. Nitishree Infrastructure Limited & Ors.) is allowed and the impugned order is modified to the extent that opposite parties No.1 to 4 are not entitled to recover external development charges or service tax from the complainant. The remaining part of the impugned order is upheld.
29. The appeals could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (HARCHARAN SINGH GURAM) MEMBER April 07, 2017.
(Gurmeet S)