State Consumer Disputes Redressal Commission
Manoj Bansal vs Improvement Trust Jalandhar on 20 July, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
Consumer Complaint No.134 of 2014
Date of institution : 28.08.2014
Date of decision : 20.07.2015
Manoj Bansal s/o Shri Hukam Chand, House No.93, R/o Ward No.7,
Cheeka, Kaithal, Haryana.
.......Complainant
Versus
1. Jalandhar Improvement Trust, Jalandhar, through its Executive
Officer.
2. Chairman, Jalandhar Improvement Trust, Jalandhar.
........Opposite Party
Consumer Complaint under Section
17(1)(a)(i) of the Consumer Protection Act,
1986.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President
Shri Baldev Singh Sekhon, Member
Shri Vinod Kumar Gupta, Member Present:-
For the complainant : Shri Vikram Bajaj, Advocate. For the opposite parties: Shri Prem Kumar, Advocate. JUSTICE GURDEV SINGH, PRESIDENT :
The complainant, Manoj Bansal, has filed this complaint under Section 17(1)(a)(i) of the Consumer Protection Act, 1986, for the issuance of following directions to the opposite parties:-
i) to pay the sum of Rs.68, 72, 538/-, along with interest at the rate of 16% per annum with quarterly compounded;
ii) to pay Rs.10,00,000/- for the harassment and mental agony suffered by him and for the depreciation in the amount deposited by him, on account of inflation and rise Consumer Complaint No.134 of 2014 2 in prices of the immovable properties during the last 2-3 years; and
iii) to pay Rs.10,000/-, as litigation expenses.
He averred therein that the opposite parties framed a Development Scheme over an area of 94.97 Acres for the allotment of residential plots in Surya Enclave Extension, for which booking commenced from 8.8.2011 and applications were invited from the general public and for which the advertisement was circulated through different channels. He purchased application form and submitted the same through the authorized Bank, along with application money of Rs.6,05,000/- for the allotment of plot against the general category. He applied for a plot of 356 square yards, the price of which was Rs.17,000/- per square yard. The allotment letter dated 23.12.2011 was sent to him at his residential address and vide that letter, he was allotted Plot No.85-D (Corner). The terms and conditions were detailed in the allotment letter itself. Vide that letter, he was asked to deposit the entire price of the plot (Rs.63,19,438/-) within 30 days of the date of issuance of that letter and in case he wanted to deposit that amount by way of instalments, then one-fourth of that amount, along with cess charges, site plan charges and agreement fee was to be deposited within 30 days and the remaining 75% of the price was to be paid in 5 instalments detailed therein. The possession of the plot could have been taken after entering into agreement of sale, which was to be got executed within 30 days of the date of that letter. For entering into that Agreement, he visited the office of the opposite parties on several occasions in 2013 and opposite party Consumer Complaint No.134 of 2014 3 No.2 promised to send Form of the Agreement to him within a week but the same was never supplied. No Sale Agreement was entered into despite repeated requests made by him and, as such, the opposite parties failed to perform their part of the Agreement. He paid the sum of Rs.68,72,538/- on different dates, as detailed in para no.10 of the complaint. In-spite of that, opposite parties have failed to deliver the vacant possession of the plot to him, though only two instalments are due. In the absence of the possession of the plot, he cannot take further steps for getting the site plan sanctioned and to start the construction within the stipulated period of three years. In fact, the opposite parties have not taken any steps for the development of this area and no such signs of development were found by him at the spot when he visited it in the last week of July 2013. No demarcation of the plots had been done till the date of filing of the complaint. When he visited the office of opposite party No.2 to ascertain the reason for non-development, he came to know that some dispute between the opposite parties and the original land owners had been going on, which has not been sorted out so far. The opposite parties exhibited gross negligence in the performance of their duties by not ensuring that there was no encumbrance on the land acquired under the Scheme before proceeding to collect the money from the consumers for the allotment of the plots. This amounts to deficiency in service on their part; as a result of which he suffered huge loss and his hard earned money from salary savings has been withheld. He visited the opposite parties repeatedly and called upon them either to deliver the possession of the plot or to Consumer Complaint No.134 of 2014 4 refund the amount, so deposited by him, along with interest. They expressed their inability to deliver the vacant possession of the plot. He made a representation dated 20.11.2013 seeking delivery of possession of the plot but they did not respond to the same. He made second representation on 13.8.2014, which was personally delivered in the office of the opposite parties but they did not respond to the same. He also alleged in his complaint that Arjan Singh, Jagdish Singh, Devinder Kumar, Kewal Singh, Amrik Singh and Bhajan Singh, petitioners/original land owners filed Civil Writ Petition No.3559 of 2011 on 23.2.2011 against the opposite parties and State of Punjab etc., vide which they sought the quashing of the Notification issued under Section 36 of the Punjab Town Improvement Trust Act, 1922, for the acquiring of the land for the Scheme and for the quashing and setting aside of the Notice under Section 38 and Notification issued under Section 42 of the said Act. Out of the total area of 94.97 acres, 32 acres is the subject-matter of that writ petition. The Hon'ble High Court had stayed the dispossession from big portion of the land, so acquired and still the opposite parties went ahead with opening the booking on 8.8.2011, though the said order was in operation on that day. In these circumstances, he cannot be made to suffer and the directions prayed for in the complaint, are liable to be issued to the opposite parties.
2. The complaint was contested by the opposite parties, who filed joint written reply. In their written reply they admitted that the complainant had applied for 356 square yard plot and he was Consumer Complaint No.134 of 2014 5 allotted one of such plot, vide allotment letter dated 23.12.2011 and that 10% of the earnest money was deposited by him. They also admitted that the complainant has already paid Rs.68,72,538/-, against the total price of the plot and that the possession thereof was not delivered to him. While denying the other allegations made in the complaint, they pleaded that the Trust is having possession of the said plot and it is ready to deliver the possession of Plot No.85-D to him. The complainant sent the letter dated 13.8.2014 to deliver the possession and in pursuance of that the Trust had informed him, vide letter No.3977 dated 11.2.2015, to take the possession of the said plot. Therefore, there is no deficiency in service on its part. They prayed for the dismissal of the complaint.
3. To succeed in the complaint, the complainant proved on record his affidavits Ex.C-A and Ex.C-B and tendered in evidence documents Ex.C-1 to Ex.C-14. On the other hand, the opposite parties tendered in evidence the affidavit of D.C. Garg, Executive Officer, Ex.OPA and the letter dated 11.2.2015 Ex.OP-1.
4. We have carefully gone through the averments of the parties, the evidence produced by them in support of their respective averments and have also heard learned counsel on their behalf.
5. It was submitted by the learned counsel for the complainant that the opposite parties adopted unfair trade practice by preparing the Scheme and inviting applications for the allotment of plots in that Scheme knowing fully well that it was not in a position to demarcate and allot the plots on account of the dispute already going on between them and the land owners regarding the possession of the Consumer Complaint No.134 of 2014 6 land forming part of that Scheme and regarding which the stay/status-quo had already been granted by the Hon'ble High Court. As per the allotment letter, the agreement of sale was to be executed between the parties and the possession of the plot was to be delivered to the complainant within 30 days of the execution of that agreement. Neither agreement was executed between the parties nor the possession of the plot was delivered to the complainant nor the opposite parties were in a position to deliver the same. After the allotment of the plot, the complainant became the 'consumer' of the opposite parties and the non-delivery of the possession of the plot amounts to deficiency in service on the part of the opposite parties. On account of that deficiency in service the complainant suffered loss and injury; as a result of the inflation of the money and the rise in the prices of the construction material. In all these circumstances the complainant is not only entitled to the refund of the price of the plot paid by him, along with penal interest as claimed in the complaint, but is also entitled to compensation and the litigation costs, as prayed therein.
6. On the other hand, it was submitted by the learned counsel for the opposite parties that it is for the first time that the complainant has made a prayer in the complaint for the refund of the money and otherwise he was always interested in getting possession of the plot in dispute. He never visited their office for the execution of the Agreement and for the first time he came with such a request by writing letter dated 20.11.2013 and he was asked to take the possession of the plot after contacting the concerned official. The Consumer Complaint No.134 of 2014 7 land in which this plot is located was not the subject-matter of the writ petition before the Hon'ble High Court and no interim order has been passed in respect of the possession of that land. That part of the land was being developed and the opposite parties were in a position to deliver the vacant possession of the plot to the complainant. Therefore, it cannot be said that there was any deficiency in service on their part. The complainant is not entitled to the refund of the amount, so deposited by him and only remedy with him is to pay the balance amount and to get the possession of the plot after executing the Agreement.
7. The first question, which arises for determination is, whether the plot, so allotted to the complainant, is located in the land which is the subject-matter of the writ petition before the Hon'ble High Court? The notification issued under Section 36 of the Punjab Town Improvement Act, 1922 was proved on the record as Ex.C-10 and the khasra numbers and the area of the land to be acquired was mentioned therein. It is very much clear from Annexure P-6 of the Writ Petition filed by Arjan Singh and others before the Hon'ble High Court and which has been proved on the record as Ex.C-11 that the writ petition has not been filed in respect of the total land, which was to be acquired and the khasra numbers and the area thereof, which is the subject-matter of that writ petition, are mentioned in that Annexure. Neither it is the case of the complainant nor any evidence has been produced by him that the land in which the plot in dispute is located is the subject-matter of that writ petition. The status-quo regarding possession was ordered to be maintained only regarding Consumer Complaint No.134 of 2014 8 the land, which was the subject-matter of that writ petition. Therefore, it cannot be held that the opposite parties were not in a position to deliver the possession of the plot in dispute to the complainant.
8. No doubt, the complainant supported the allegations made in the complaint that he had been repeatedly visiting the office of the opposite parties for the execution of the Agreement but they failed to execute any such Agreement, by means of his affidavit Ex.CA but he stands falsified by his own representation dated 20.11.2013 sent by him to the opposite parties. He alleged in his own pleadings and also deposed in his affidavit that he had made that representation for seeking delivery of possession. He made the second representation on 13.8.2014, which was proved by him on the record as Ex.C-9. In that representation he made the position clear that he made categorical requests that the possession of the plot be delivered to him at the earliest and that on previous occasions also he had been making the requests for the delivery of possession. Had he been visiting the office of the opposite parties for the execution of the Agreement, he must have mentioned that fact in the representations so made by him. The making of those representations itself shows that he admits that the opposite parties are in a position to deliver the possession of the plot in dispute to him.
9. The opposite parties proved on record the letter dated 11.2.2015, Ex.OP-1, vide which the complainant was asked to take possession of the plot in dispute by coming present in the office on any working day and by contacting the concerned official. It Consumer Complaint No.134 of 2014 9 becomes very much clear from that letter that the opposite parties were ready to execute the Agreement in favour of the complainant and to deliver the possession of the plot to him. Therefore, it cannot be said that there was any deficiency in service on their part. When the opposite parties are in a position and are ready to deliver the possession of the plot to the complainant as per the terms and conditions of the allotment letter, it cannot be held that he is entitled to the refund of the amount, so deposited by him.
10. From our above discussion, we conclude that there is no merit in this complaint and the same is hereby dismissed, without prejudice to his right to claim possession of the plot.
11. The arguments in this case were heard on 8.7.2015 and the order was reserved. Now, the order be communicated to the parties.
12. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (BALDEV SINGH SEKHON) MEMBER (VINOD KUMAR GUPTA) July 20 , 2015 MEMBER Bansal Consumer Complaint No.134 of 2014 10