State Consumer Disputes Redressal Commission
Navdeep Goyal vs State Of Punjab on 28 March, 2018
Daily Order FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH Consumer Complaint No.478 of 2017 Date of Institution : 13.06.2017 Order Reserved on : 26.03.2018 Date of Decision : 28.03.2018 Navdeep Goyal son of Sh. Deputy Singh Goyal, through his General Power of Attorney Shri Deputy Singh Goyal, Resident of Petrol Pump Wali Gali, Bhan Singh Colony, Faridkot. ....Complainant Versus 1. State of Punjab, through its Principal Secretary, Department of Local Bodies Punjab at Chandigarh. 2. The Faridkot Improvement Trust, Faridkot through its Chairman. 3. The Faridkot Improvement Trust, Faridkot through its Executive Officer, Faridkot Improvement Trust, Faridkot. Opposite parties Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date). Quorum:- Shri J. S. Klar, Presiding Judicial Member.
Smt. Surinder Pal Kaur, Member.
Present:-
For the complainant : Sh. Kapil Sharma, Advocate For opposite parties : Sh. Karan Jindal, Advocate
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J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainant Navdeep Goyal has instituted this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OPs on the averments that OPs no.2 and 3 floated a scheme for development of plots at Baba Jeevan Singh Nagar situated at Ferozepur Road and Pakhi Road Faridkot from 10.07.2013 to 09.08.2013 and invited applications for allotment of plots of various sizes in the said scheme. He applied for allotment of plot measuring 300 sq. yards in the prescribed period along with earnest money of Rs.2,47,500/- deposited, vide draft no. 626352 dated 07.08.2013. The Improvement Trust held draw of lots on 26.11.2013 and the complainant was held successful in draw of lots held by OP no.2 and allotted plot no. 132 measuring 300 sq. yards in the above-said development scheme. Allotment letter dated 02.04.2014 was issued by OP no.3. The complainant has already deposited 10% of the total costs of the plot along with application i.e.. Rs.2,47,500/- and remaining amount of Rs.22,84,688/- was deposited on 29.04.2014 through RTGS, vide transaction no. RTGC BFIDH4119969218 Bank of India Branch Faridkot to HDFC Bank Faridkot and OPs no.2 and 3 were informed, vide letter dated 29.04.2014. Thereafter, OP no. 3 entered into an agreement dated 30.05.2014 in respect of above said plot. In the said agreement, rate of the above said plot has been shown as Rs.8250/- per sq. yards and total sale price of the above said plot comes to Rs.24,75,000/- , which was already deposited by complainant on 29.04.2014. As per the terms and conditions of the allotment letter, the allottee would complete the constructions within a period of 36 months. The plot number has been allotted to him, but neither any development took place where the plot has been allotted nor any plot number has been shown or mentioned at the site. Neither water pipes nor sewerage pipes were laid down in the development area nor any provision of electricity supply has been provided. There were high-tension wires passing through the land of the development scheme. Neither any roads have been laid nor NOC from Pollution Control Department has been taken in respect of the above land nor possession of the plot was handed over to him. OPs no.2 and 3 have not taken any No Objection Certificate from Punjab Pollution Control Board and have also not deposited money with Water Supply and Sanitation Mandal, Faridkot for supply of the water to the above-said colony, which was pre-requisite for the development of the colony. OPs failed to stop the polluted water, which was used to flow from the surrounding area towards the above said land of the colony. OPs have neither removed the high tension wires of 11000 voltage from the above said land and nor obtained No Objection Certificate from District Town Planner Forest Department and PWD Department for carving passage to the above-said colony. The complainant deposited huge amount of Rs.24,75,000/- to OPs, but OPs failed to complete the requisite NOCs and develop the colony and failed to deliver the possession of the plot in the above said scheme of 'Baba Jiwan Singh Nagar'. The OPs failed to stop the polluted water, which was used to flow from the surrounding area towards the above-said land of the colony. The complainant has alleged deficiency in service and unfair trade practice on the part of OPs in mis-utilizing his hard-earned money by not delivering the possession of the flat in incomplete condition to him. The complainants seeks below noted direction against OPs :-
i) OPs be directed to refund the amount of Rs.24,75,000/- which was deposited by the complainant for allotment of plot no.132 in Baba Jiwan Singh Nagar situated at Ferozepur Pakhi Road Faridkot.
ii) OPs be directed to pay Rs. 2,00,000/- to complainant as compensation for mental harassment.
iii) OPs be directed to pay interest @ 12% p.a on the above-said amount of Rs.24,75,000/- from the date of payment till its realization and cost of litigation.
2. Upon notice, OPs appeared and field written reply by raising preliminary objections that complainant has no cause of action to file the complaint. The complainant has not come to the Commission with clean hands. On merits, it was denied by OPs that they have violated the terms and conditions of agreement to sell. The complainant after entering into agreement to sell and after getting the possession of the plot in dispute was required to get the proposed site plan sanctioned from the office of Improvement Trust Faridkot, but intentionally has not applied for the same and after getting the possession, he filed false complaint against them. It was denied by OPs that no development work has taken place on the site. Development works are going on by the trust on the site in question. Even the complainant was required to submit an application for seeking water connection or electricity to respective departments before starting the construction. Neither the complainant has submitted the proposed site plan with the office nor has submitted any application for temporary connections from Electricity and Water Supply Department. The development work of the construction of roads has been completed and even possession was also offered by the trust to complainant. Rest of the averments were denied by OPs and they prayed for dismissal of the complaint.
3. The complainant has tendered in evidence his affidavit Ex.C-A along with copies of documents Ex.C-1 to Ex.C-18 and closed the evidence. As against it; OPs tendered in evidence affidavit of Sh.Gobind Kumar Authorized Representative of OPs as Ex.OP-A along with copies of documents Ex.OP-1 to Ex.OP-10 and closed the evidence.
4. We have heard learned counsel for the parties and have also examined the record of the case. Ex.C-1 is the allotment letter of the plot issued to complainant in general category by OPs. OPs received amount of Rs.24,75,000/- from complainant through bank draft no. 626352. Ex.C-2 is receipt of this amount issued by OPs. Ex.C-3 is acknowledgment of this amount. The complainant served legal notice Ex.C-4 upon OPs to the effect that despite payment of most of the amounts by him, OPs have not developed this project and are not able to deliver the possession within scheduled time. Ex.C-4-A is allotment letter, vide memo no. 181 dated 02.04.2014 on the record. It is stated in clause 6 of this allotment letter that construction would be raised by the buyer within three years period from sanctioning of the site plan after allotment. The complainant wrote letter to Executive Officer Improvement Trust Faridkot Ex.C-5 for payment of draw of scheme dated 26.11.2013. Another letter was issued by complainant to Executive Officer Improvement Trust is Ex.C-5/A dated 29.04.2014 for issuance of due clearance certificate. Agreement of sale was executed between the parties on 30.05.2104, vide Ex.C-6. The total sale price of this plot is Rs.24,75,000/-. Letter issued by Environment Engineer Regional office Faridkot to Deputy Singh Goel dated 06.04.2017 is Ex.C-7 to the effect that NOC has not been issued from this office to Development Scheme Baba Jiwan Singh Nagar Ferozepur Road Pakki Road Faridkot. Ex.C-7/A is information addressed to complainant by Environment Engineer Faridkot to the effect that No Objection Certificate has been issued to this project of OPs. Ex.C-8 is information supplied by Executive Engineer and Sanitation Mandal Faridkot to complainant, that no amount has been deposited for the development of Baba Jiwan Singh Nagar Ferozepur Pakki Road Faridkot. Ex.C-8/A is the information supplied by Executive Engineer Water Supply & Sanitation Faridkot that no amount was deposited by OPs for this project with them. The complainant also relied upon the photographs Ex.C-9 to Ex.C-12 to the effect that OPs have not completed the project and it is lying in Ex.C-9 in vacant condition and in Ex.C-10 and Ex.C-11 in incomplete condition. The complainant served legal notice dated 01.05.2017 is Ex.C-13 to OPs that they have not developed the project within time.
5. To counter this evidence, OPs tendered in evidence affidavit of Gobind Kumar Assistant Improvement Trust Faridkot. He has admitted this fact that complainant booked plot no. 132 of Baba Jiwan Singh Nagar situated at Ferozepur Road. The allotment letter was issued to him on 02.04.2014. As per clause 15 of the agreement of sell, the dispute is liable to be referred to Arbitrator Secretary Local Government Department of Punjab only. The complainant neither approached the OPs for seeking possession of the plot nor for getting demarcation thereof. The complainant has filed this frivolous complaint to seek refund of the amount only. The work of construction of roads is in progress and in most area of the roads had already been made. Tenders for construction of boundary wall of scheme for commercial parking have been invited for 31.05.2016 and given to Contractors and construction of the boundary wall is in progress. Trust had passed a resolution for laying of water pipe lines in the scheme and the same has been approved by the government and now the work is in progress. For laying the sewerage pipes in the scheme area, a considerable amount is being given to the department of sewerage board to carry out the work in the scheme area. OPs denied the assertion of the complainant and have not completed the project. This witness stated that they have done considerable development in the area and hence the complainant is not entitled to any relief. Ex.OP-1 is copy of advertisement. Ex.OP-2 is letter dated 20.04.2015 regarding allotment of the work for construction of roads in the development scheme Baba Jiwan Singh Nagar at Faridkot. Ex.OP-3 is tender invited by OPs. Ex.OP-4 is letter dated 22.06.2016 regarding allotment of the work of construction of commercial parking in trust development scheme Baba Jiwan Singh Nagar at Faridkot. Ex.C-6 is letter dated 22.06.2016 regarding allotment of work for construction of boundary wall of trust development scheme Baba Jiwan Singh Nagar at Faridkot. Ex.OP-7 is resolution passed by the improvement trust. Ex.OP-9 is specimen affidavit of the complainant. Ex.OP-10 is letter addressed by Executive Engineer Sewerage to Executive Officer of OPs. The submission of counsel for OPs is that assertion of complainant is not correct to the effect that they have not completed the project.
6. The first point raised by OPs is that there is an arbitration clause in the plot buyer's agreement between the parties and hence consumer complaint is not maintainable. We find no force in this submission of OPs. The matter has been settled by larger bench of Hon'ble National Commission in consumer complaint no.701 of 2015, decided on 13.07.2017 titled as "Aftab Singh Vs. EMAAR MGF Land Limited and another". The National Commission has held in this authority that an arbitration clause in the afore-stated kind of Agreements between the complainants and the builder cannot circumscribe the jurisdiction of a Consumer Forum, notwithstanding the amendments made to Section 8 of the Arbitration Act, 1996. Against this order of the National Commission, Civil Appeal nos.23512-23513 of 2017 titled as EMAAR MGF Land Limited and another Vs. Aftab Singh" was filed by OPs before the Top Court, which has been recently dismissed by the Apex Court, vide order dated 13.02.2018. Consequently, the existence of an arbitration clause is not a bar to resolution of this dispute by the Consumer Forum. Even otherwise, the Apex Court has also so held in "National Seeds Corporation Limited Vs. M. Madhusudhan Reddy and another" 2012(2)CLT-382/383 and in Fair Air Engineers (P) Ltd. vs. N. K. Modi (1996) 6 SCC 385 that Section 3 of C.P. Act gives additional remedy to consumers to avail of his remedy as per his choice. In view of Section 3 of C.P. Act conferring the additional remedy on the consumers, we find no force in this submission of OPs and repel the submission of OPs.
7. Now, we touch this point, as to whether OPs have completed this project or not. We find that photographs Ex.C-9 to Ex.C-12 corroborate the case of the complainant regarding non-completion of construction work by OPs thereat. It has been shown in incomplete form. Even from the various tenders sent by OPs to different persons. it can be easily inferred that OPs have not completed the construction and development of the project within scheduled time. The complainant has deposited huge amount of Rs.24,75,000/- to OPs, but still development work is not complete as it is at initial stage only. The complainant tendered his affidavit Ex.C-A stating that OPs have not completed the construction work within scheduled time. Neither water pipes nor sewerage pipes are laid down in the development area nor any provision of electricity supply has been provided. There are high tension wire passing through the land of the above said development scheme, which are yet to be removed, neither any roads have been laid nor NOC from the Pollution Control Department has been taken in respect of the above said scheme. Possession of the plot was not handed over to complainant despite lapse of three years. This witness relied upon Ex.C-7 to Ex.C-8 to the effect that OPs have not yet completed the NOC from for development of this project. He served legal notice upon OPs, vide Ex.C-13 in this regard supported by postal receipts Ex.C-14 to Ex.C-16. The matter in this project as launched by OPs has been decided by this Commission in Consumer Complaint no. 499 of 2017 titled as Raj Kumar versus State of Punjab and others through its Principal Secretary Department of Local Bodies Punjab at Chandigarh and others decided on 08.11.2017, wherein with regard to this project of Baba Jiwan Singh Nagar situated at Faridkot, it has been held by this Commission that OPs received substantial amounts from the complainant. The construction was to be completed within three years from the date of agreement by OPs. However, OPs have not completed the construction work and hence possession of the plot was not delivered to the complainant within the scheduled time period, which is clear deficiency in service on the part of OPs. No basic amenities like roads, water and sewerage pipes have been provided on the spot by OPs. No NOC from Pollution Control Board and other competent authorities have been obtained by OPs of this project. No amount was deposited with Water Supply and Sanitation Mandal Faridkot for supply of water, which is pre-requisite for development of the colony. OPs failed to stop the polluted water flow from the surrounding area. OPs have not removed the high-tension wires passing over the land of the above said scheme. OPs have not obtained No Objection Certificate from District Town Planner Forest Department and PWD Department for carving passage to the above-said colony. The observation of this Commission in the above-referred case helps the complainant in coming to this conclusion in this case that OPs have not completed the project within the scheduled time justifying the refund of the deposited amounts to complainant with interest @ 12% p.a from the date of their deposits till realization under Section 12 and Rule 17 of PAPRA Act 1995. The counsel for OPs could not distinguish this authority of this Commission, which is directly applicable to the facts and circumstances of the case, as the project launched by OPs in both the cases is identical.
8. Consequently, the complaint of the complainant is accepted and below noted directions are issued to OPs :-
i) to refund entire deposited amounts to complainant with interest @ 12% p.a from the date of their respective deposits till actual payment.
ii) to pay Rs. 75,000/- as compensation and Rs.20,000/- as costs of litigation. Compliance of the order be made within 45 days by OPs from receipt of certified copy of this order.
9. Arguments in this complaint were heard on 26.03.2018 and the order was reserved. Certified copies of the order be communicated to the parties under rules.
10. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER March 28 , 2018 (ravi)