State Consumer Disputes Redressal Commission
Joginder Singh vs Jalandhar Improvement Trust on 20 July, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
Consumer Complaint No.150 of 2014
Date of institution : 16.09.2014
Date of decision : 20.07.2015
Joginder Singh s/o Shri Kirpal Singh, R/o Village Bishanpura, P.O.
Gaje Was, Tehsil Samana, District Patiala (Punjab).
.......Complainant
Versus
1. Jalandhar Improvement Trust, Jalandhar, through its Executive
Officer.
2. Chairman, Jalandhar Improvement Trust, Jalandhar.
........Opposite Parties
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 Sandeep Khunger, Advocate. JUSTICE GURDEV SINGH, PRESIDENT :
The complainant, Joginder Singh, 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 refund Rs.14,51,605/-, along with interest at the rate of 16% per annum, compounded quarterly;
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.150 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.1,69,000/-, for the allotment of plot against the defence category; after taking loan from the State Bank of Patiala. He applied for a plot of 100 square yards; the price of which was Rs.17,000/- per square yard. The allotment letter dated 2.4.2012 was sent to him at the residential address of his Village and vide that letter, he was allotted Plot No.210-C. 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.15,98,950/-) 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 Consumer Complaint No.150 of 2014 3 parties on several occasions in 2013 and opposite party 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.14,51,605/- 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 out of the retiral dues has been withheld. He visited the opposite parties repeatedly and Consumer Complaint No.150 of 2014 4 called upon them either to deliver the possession of the plot or to refund the amount, so deposited by him, along with interest. They expressed their inability to deliver the vacant possession of the plot. He made representation No.930 dated 13.8.2014 seeking delivery of possession of the plot 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 opposite parties filed joint written reply, in which they admitted that in the draw of lots the complainant was successful and Plot No.210-C measuring 100 square yards was allotted to him, vide allotment letter dated 2.4.2012 containing the detailed terms and Consumer Complaint No.150 of 2014 5 conditions. They also admitted that the amounts, as mentioned in para no.8 of the complaint, already stand paid by the complainant in connection with the allotment of the plot. They also admitted that Arjan Singh and others filed the writ petition before the Hon'ble High Court, in which interim order regarding status quo of possession was passed. While denying the other allegations made in the complaint, they averred that the plot so allotted to the complainant does not fall in the area of land, which is under litigation and the status-quo order has been passed in respect of other part of the land. In pursuance of the allotment letter, the complainant paid Rs.3,23,950/- on 2.5.2012 and was required to make the payment of the balance of 75% amount in five instalments. He paid only three instalments and fourth and fifth instalments were not paid by him, though those were required to be paid on 1.4.2014 and 1.10.2014. He made request for delivery of possession of the plot on 13.8.2014 and in response thereto, he was informed, vide letter dated 15.12.2014, that he can obtain the possession after the deposit of the balance sale consideration and execution of the Agreement. Thereafter no application was received from his side nor he came present in their office to comply with the letter dated 15.12.2014. They are in possession of the plot in dispute and the same can be obtained by the complainant after the payment of the said amount and the execution of the Agreement to sell on any working day. There was no such negligence or deficiency in service on their part. The complainant has not approached this Commission with clean hands and has suppressed the material facts. It was mentioned in the Consumer Complaint No.150 of 2014 6 allotment letter itself that the amount is to be paid by the complainant in a period of two and a half years and, as such, they will take some period for the completion of the basic facilities at the spot. They prayed for the dismissal of the complaint with costs.
3. For proving the allegations made in the complaint, the complainant proved his affidavits Ex.CA and Ex.CB and documents Ex.C-1 to Ex.C-18. On the other hand, the opposite parties proved on record the documents Ex.OP-1 and Ex.OP-2.
4. We have carefully gone through the averments of the parties, the evidence produced by them in support of their respective averments and have heard learned counsel on their behalf.
5. It was submitted by the learned counsel for the complainant that from the affidavit of the complainant Ex.CA, which has remained unrebutted, it stands proved that he had been repeatedly visiting the office of the opposite parties for the execution of the Agreement as per the terms and conditions mentioned in the allotment letter Ex.C-5 but they failed to execute any such Agreement nor provided the Proforma of that Agreement to him. In the absence of that Agreement he was not in a position to apply for the sanctioning of the site plan and raising of the construction. Moreover, it also stands proved from the evidence produced on the record that neither the opposite parties were in possession of the plot in dispute nor were in a position to make development thereof and to deliver the possession thereof to the complainant. In these circumstances he was justified in not making the payment of the fourth and the fifth instalment. The major portion of the land acquired for the Consumer Complaint No.150 of 2014 7 development of the Scheme in question is under litigation and there is no possibility of the opposite parties making the development of that Scheme and handing over the possession of the plot to the complainant. In these circumstances they are bound to refund the amount, so deposited by the complainant, along with interest and to pay compensation for the harassment caused to him, on account of the deficiency in service on their part in not developing the Scheme and in allotting the plots in-spite of the pendency of the litigation before the Hon'ble High Court.
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 13.8.2014, Ex.C-13, which was duly replied, vide letter dated 15.12.2014 and he was asked to deposit the balance amount and to take possession of the plot after executing the Agreement. The 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 Consumer Complaint No.150 of 2014 8 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-14 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-15 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 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 Consumer Complaint No.150 of 2014 9 stands falsified by his own letter dated 13.8.2014, Ex.C-13. In that letter, which was addressed by him to the opposite parties, he mentioned that he was allottee of Plot No.210-C and the possession thereof be delivered to him. Had he been visiting the office of the opposite parties for the execution of the Agreement, he must have detailed that fact in this letter. The writing of this letter itself shows that he admits that the opposite parties are in a position to deliver the possession of this plot to him.
9. It is the admitted case of the parties that the complainant failed to pay the fourth and fifth instalments towards the price of the plot. As per the contents of the allotment letter Ex.C-5, he was required to pay those instalments on 1.4.2014 and 1.10.2014. By non-payment of those instalments, he himself committed the breach of the terms and conditions. The last date for the payment of the fourth instalment had already passed when he had written the letter Ex.C13. That letter was duly replied by the opposite parties, vide letter dated 15.12.2014 Ex.OP-1. He was asked to deposit the balance amount and to get the possession of the plot after the execution of the Agreement. In fact, without waiting for the reply to that letter, he filed the present complaint on 16.9.2014. It becomes very much clear from the reply so given by the opposite parties (Ex.OP-1) that they were always ready to execute the Agreement in favour of the complainant and to deliver the possession of the plot to him after the receipt of the due instalments. 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 Consumer Complaint No.150 of 2014 10 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