State Consumer Disputes Redressal Commission
Hardev Singh vs Improvement Trust Jalandhar on 8 March, 2016
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
Consumer Complaint No.129 of 2015
Date of institution : 03.06.2015
Date of decision : 08.03.2016
Hardev Singh s/o Shri Karnail Singh r/o H.No.595, Gali No.8, Guru
Nanakpura West, Jalandhar.
.......Complainant
Versus
1. Chairman, Improvement Trust, Jalandhar.
2. Administrator, 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 Vinod Kumar Gupta, Member
Present:-
For the complainant : Ms. D.A. Dubey, Advocate.
For the opposite parties: Sh. S.C. Pathela, Advocate with Ms.Kavita Arora, Advocate.
JUSTICE GURDEV SINGH, PRESIDENT :
The complainant, Hardev Singh, has filed this complaint under Section 17(1)(a)(i) of the Consumer Protection Act, 1986, for issuance of directions to the opposite parties to pay the following amounts:-
i) Rs.65,95,830/-, along with interest at the rate of 10% per annum;
ii) Rs.10,00,000/-, as compensation, for loss, mental and financial torture and agony suffered by him; and Consumer Complaint No.129 of 2015 2
iii) Rs.2,00,000/-, as cost of proceedings, including litigation expenses incurred in correspondence.
He alleged therein that Jalandhar Improvement Trust, Jalandhar offered freehold residential plots in "Surya Enclave Extension" and the booking in the Scheme, as per the brochure, opened on 8.8.2011 and closed on 7.9.2011. It was mentioned in the brochure itself that the Scheme was spread in an area of 94.97 acres adjoining G.T. Road and Railway Station, Jalandhar and the details of the plots offered for allotment, by way of draw, were mentioned therein. He applied for a plot of 356 square yards and was informed by opposite party No.1, vide letter of allotment dated 2.4.2012 that the lucky draw was held on 4.11.2011 and he was allotted Plot No.5D under General Category. Some of the conditions were mentioned in the allotment letter and to comply with those conditions he deposited 10% of the total amount of earnest money i.e. Rs.6,50,000/-, through Punjab National Bank. He also paid Rs.77,815/-, as interest on that amount. Thereafter he paid Rs.11,51,830/-, Rs.12,11,360/-, Rs.11,63,000/-, Rs.11,14,440/- and Rs.13,50,000/- on 30.4.2012, 29.3.2013, 27.9.2013, 27.3.2014 and 31.3.2014, respectively, against proper receipts. Thus, he paid the total amount of Rs.65,95,830/-; though as per the allotment letter the amount payable by him was Rs.60,52,000/-. The plots were not carved out, as shown in the brochure and possession of the plot was never delivered to him. He came to know that the land, in question, was disputed land and the original owners had already obtained status- quo order from the Hon'ble High Court of Punjab and Haryana in Consumer Complaint No.129 of 2015 3 CWP No.3559 of 2011 on 8.3.2011. He made a number of representations to the opposite parties to know the correct position, but no reply was given to him. In the month of May 2015 he visited the site where the opposite parties promised to give possession of the plot, but was surprised to see that no development in the form of roads, electricity, sewerage etc. had taken place and the crops were standing in the land. He made representation dated 3.3.2015 requesting the opposite parties to hand over the physical possession of the plot, as he had already paid the entire amount but they did not respond to that representation. In fact, he was cheated by the opposite parties for extracting the above said amount without the delivery of possession of the plot. On account of their illegal and unlawful acts he suffered financially, physically and mentally. They were well aware of the fact that civil litigation was pending at the time of opening of the booking of the plots and they made fool of the innocent public at large.
2. The complaint was contested by the opposite parties, who filed joint written reply. They did not dispute that the Jalandhar Improvement Trust, Jalandhar, had floated the Scheme, in question, offering residential plots to the interested persons and that the complainant also applied for the allotment of the plot in that Scheme. They admitted that when the draw of lots was taken out the complainant was successful and was allotted Plot No.5D of 356 square yards and the letter of allotment was issued to him. They did not dispute that different amounts, as detailed in para no.4 of the complaint, were deposited by the complainant and in all he Consumer Complaint No.129 of 2015 4 deposited the sum of Rs.65,95,830/-. While denying the other allegations made in the complaint, they averred that as per the terms and conditions of the allotment letter the complainant was required to execute an Agreement to sell within a period of 30 days from the date of allotment on a non-judicial paper worth Rs.500/- in the name of opposite party No.1 and that stamp paper was to be deposited in their office. The complainant failed to execute his part of the Agreement. The possession of the land, from which plot No.5D was to be carved out, was with them and it was the complainant, who was not interested in taking the possession of that plot. Had he been serious in taking the possession he would have approached them instead of writing the letters and by executing the Agreement to Sell within the above said period. They have already spent huge funds for development of the entire area. The work of electricity and streetlight will be carried out subsequently. The complainant never demanded the possession of the plot and was asking for refund of the amount; which was not permissible under the terms and conditions of allotment. Letter dated 14.8.2015 was issued to him informing him to execute the Agreement to Sell as per the terms and conditions of the allotment letter by coming in person in the office along with two witnesses to take the possession, but he never came to their office to take the possession. Therefore, it cannot be said that there was any deficiency in service on their part. In fact the land prices all over the country, including Jalandhar town, have drastically gone much low, as compared to the prices prevailing in the year 2011-2012. When the plot was allotted to the complainant, the Consumer Complaint No.129 of 2015 5 market price of the land was much more than the allotment price. The market price was more than Rs.20,000/- per square yard, whereas the allotment price was Rs.17,000/- per square yard. He had purchased the plot with an object to earn profits and, as such, he does not fall within the definition of the 'consumer'. The land prices have come down to Rs.10,000/- to Rs.12,000/- per square yard and even the Collector rate for residential land in the "Surya Enclave" during the year 2014-2015 was fixed at Rs.2,50,000/- per marla. The market value of the plot, in dispute, thus was not more than Rs.50,00,000/-. Had the prices gone up during this period, the complainant would have happily taken active steps for taking possession of the plot. It was on account of the fall in the prices of the land that he had not come forward to take the possession of the plot. Thus, the complaint filed by him is not bona fide. He has intentionally given wrong facts in the complaint that there was stay order of the Hon'ble High Court regarding the land, in which the plot in dispute is located. They are providing all the basic amenities in whole of the Scheme area before delivering the possession, for which huge finances have been incurred. It had already remitted a sum of Rs.1,60,826/- to P.S.P.C.L. and that fact was clearly stated in the letter dated 21.11.2012. They are making sincere efforts for providing all the requisite facilities in the Scheme area, though some area thereof is under stay order but they are making sincere efforts to get that order vacated. The complainant has no cause of action to file this complaint. They prayed for the dismissal thereof. Consumer Complaint No.129 of 2015 6
3. To prove the allegations made in the complaint, the complainant proved on record his affidavit Ex.CA and documents Ex.C-1 to Ex.C-12. In rebuttal to that evidence, the opposite parties proved on record the affidavit of Dayal Chand Garg, Executive Officer, Ex.RA, affidavit of Jatinder Singh, Executive Officer, Ex.RB and documents Ex.R-1 to Ex.R-5.
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 all the allegations made in the complaint stand proved from the affidavit and the documents produced on record. In-spite of the fact that he paid the total amount in respect of the plot, in dispute, still the same was not developed and possession thereof was not delivered to him during the period mentioned in the allotment letter Ex.C-2. As per that allotment letter, the facilities were to be provided and the whole of the Scheme was to be developed within two and a half years of the receipt of the price of the plot and possession of the fully developed plot was to be given to the complainant. The complainant had been running from pillar to post to get the possession of the plot but the same was not given in-spite of the fact that he had written a number of letters to opposite party No.1 and which have been duly proved on record. It also stands proved that no development has taken place on the site and the opposite parties are not in a position to deliver the possession of the developed plots. All these acts and omission on the part of the opposite parties amount to unfair trade Consumer Complaint No.129 of 2015 7 practice, which entitles the complainant to the refund of the amount, so paid by him, along with interest at the rate prayed for in the complaint and to receive compensation for the physical and mental harassment received by him at the hands of opposite parties.
6. On the other hand, it was submitted by the learned counsel for the opposite parties that the complainant himself did not comply with the conditions of the allotment, as mentioned in the allotment letter, Ex.C-2. He never got Agreement executed within the period of 30 days of the issuance of the allotment letter and never came forward to take possession of the plot, in dispute. From the evidence produced on the record by the opposite parties, it stands proved that the development is going on at the spot and the same is going to be completed very soon and the possession has already been offered to the complainant by writing letter Ex.R-1 to him. Therefore, it cannot be said that there was any deficiency in service on the part of the opposite parties or that they indulged in unfair trade practice. In similar complaints this Commission, vide orders dated 20.7.2015 passed in Consumer Complaint No.134 of 2014 (Manoj Bansal v. Jalandhar Improvement Trust, Jalandhar and another) and Consumer Complaint No.150 of 2014 (Joginder Singh v. Jalandhar Improvement Trust, Jalandhar and another), has already expressed its opinion that once the possession of the plot has been offered by the opposite parties as per the terms and conditions of the allotment letter, it cannot be said that there was any deficiency in service or that the complainant is entitled to the refund of the amount, so deposited by him. In view of those orders the complaint Consumer Complaint No.129 of 2015 8 filed by the complainant for the refund of the amount, so deposited by him, is liable to be dismissed.
7. Admittedly, the plot, in dispute, was allotted to the complainant, vide allotment letter dated 2.4.2012, Ex.C-2. As per condition No.5 of that letter, the complainant was to attend the office of the Chairman of the Improvement Trust within 30 days and was to take with him two witnesses and stamp paper of Rs.500/- for getting the Agreement executed. It is not the case of the complainant that he complied with that condition. However, from the evidence produced on the record by him, it stands proved that all the instalments, as stipulated by this letter of allotment have already been deposited by him. If the complainant had not himself appeared in the office to get the Agreement executed, the opposite parties could have invoked condition No.6, vide which they were authorized to cancel the allotment and to forfeit the amount already deposited by the complainant. They never invoked that clause and continued to receive the instalments from the complainant. In these circumstances, it does not lie in the mouth of the opposite parties to say that the complainant never became entitled to the possession of the plot on account of the non-execution of the Agreement.
8. It is very much clear from the terms and conditions of the allotment letter that all the development facilities were to be provided within two and a half years by the opposite parties. The complainant has sworn in his affidavit that no development has taken place at the spot and rather there is status-quo order regarding the land, which was issued by the Hon'ble High Court in the writ petition filed by the Consumer Complaint No.129 of 2015 9 land owners. That fact has not been denied by the opposite parties. However, they have come up with the plea that the said status-quo order is not in respect of the land out of which the plot, in dispute, was to be carved out. However, the fact remains that the status-quo order was operative in respect of the land, which was part and parcel of the Scheme in question. The complainant proved on record the letter dated 21.10.2005 (Memo No.6/44/05-4LG2/16729-90), Ex.C10, which was written by the Local Government Department, Punjab to all the Improvement Trusts in the State of Punjab. As per this letter, before commencement of the process of allotment of the plot in the Scheme, the Chairman and Executive Officer of the Improvement Trusts were to certify on record that physical possession of the site(s) of proposed allotment/auction free from all encumbrances/obstructions was readily available for onward transmission to the prospective allottees and that there was no physical obstruction to start the construction activities. In fact, this was the position taken up by the State of Punjab in the letter dated 23.2.1983 (Memo No.66-I-3GII-83/7070-7090) Ex.C-11, which was reiterated. In that letter it was mentioned that as far as possible the Improvement Trusts shall allot/auction the sites only when they were sure that they were in a position to deliver the possession of the site to the purchaser. It is a fact that the possession of the whole of the land which form part of the Scheme was not with the opposite parties when they commenced the process of allotment of plots to the complainant and the other applicants. The original land owners were in possession thereof, who had obtained the status-quo order from Consumer Complaint No.129 of 2015 10 the Hon'ble High Court. In these circumstances the opposite parties should not have proceeded with the Scheme and by indulging in the activity of allotting the plots in the Scheme, when possession of whole of the land was not with them, amounts to adoption of unfair trade practice.
9. It was the possession of the developed plot, which was to be given to the complainant. The next question to be determined is, whether the opposite parties have made the required development at the site? It has been specifically deposed by the complainant in his affidavit Ex.C-A that no such development has been done by the opposite parties and the crops are still standing in the land, in dispute. To rebut that deposition of the complainant, the opposite parties proved on record the affidavits of Dayal Chand Garg, Executive Officer Ex.RA and that of Jatinder Singh, Executive Officer, Ex.R-B. In fact, the affidavit of Dayal Chand Garg, Executive Officer, is just the written reply, which has been given the form of an affidavit and he has not specifically deposed about the facts in that affidavit. The same is no affidavit in the eyes of law and does not constitute legal evidence. Jatinder Singh, Executive Officer, in his affidavit, Ex.R-B, deposed that the construction activities over the land adjoining the plot of the complainant are going on. The work of pucca road in front of the plot, in dispute, has been started and the funds have been made available to Water Supply and Sewerage Board for laying the water supply and sewerage lines. The Trust has already started getting the work executed in this area. The opposite parties proved on record Consumer Complaint No.129 of 2015 11 documents Ex.R-2 to Ex.R-5 for corroborating that deposition of the Executive Officer. It cannot be concluded from this evidence that the development was completed by the opposite parties, as required by the letter of allotment. It appears that all this exercise for making development was started by the opposite parties after the filing of the present complaint. Except document Ex.R-4, which is the letter written by opposite party No.1 to Punjab State Power Corporation Limited for shifting the electric poles and electric lines, all other documents are subsequent to the filing of the complaint. The estimated costs of the works are mentioned in those documents and the work done is not as per those estimated costs and is much less than those estimated costs. The omission on the part of the opposite parties in developing the Scheme as per their undertaking given in the allotment letter also amounts to unfair trade practice.
10. The facts of the above said cases, in which the orders so relied upon by the learned counsel for the opposite parties were passed by this Commission, were different. The above said letters of the Government of Punjab sent to the Improvement Trust were neither proved before us nor were referred at the time of arguments. In those complaints the complainants had not raised their objections regarding the non-development at the site and they had made prayer for the possession of the plots, so allotted to them and they had written letters to the opposite parties for delivery of possession of plots to them and in pursuance of those letters, they were asked to execute the Agreement to Sell and to get possession of the plots. The facts of the present case are different. The first letter dated Consumer Complaint No.129 of 2015 12 12.11.2013, Ex.C-7, was written by the complainant to the opposite parties for the delivery of possession of the plot. In the next letter dated 6.6.2014, Ex.C-7, he made it clear that no development has been made at the site and that the physical possession thereof be given to him or the amount already deposited by him be refunded. Similar request was made by him in the next letter Ex.C-7, which was sent by him to opposite party No.1 through registered post. From the above discussion, it is very much clear that only partial development has been made at the spot and the opposite parties are not in a position to deliver possession of fully developed plot to the complainant and that they adopted unfair trade practice.
11. Similar question had arisen before us in Consumer Complaint No.82 of 2013 decided on 30.07.2014 (Sanjay Gupta Vs. Jalandhar Improvement Trust & Another). That complaint was filed in respect of the plot in the same Scheme and the facts were similar. The complaint was allowed and against that order, the opposite parties preferred the appeal (F.A. No.1216 of 2014) before the Hon'ble National Commission, which was decided on 01.07.2015 (Jalandhar Improvement Trust & Another Vs. Sanjay Gupta). The Hon'ble National Commission held as under:-
"26. Thus, it is manifestly clear from the above order that as on 8.3.2011, there was "Status quo regarding possession". However, the appellants despite having full knowledge of the above order of the High Court, issued allotment letters on 26.12.2011 and 23.12.2011, in respect of plots in question. Therefore, above facts clearly goes on Consumer Complaint No.129 of 2015 13 to show, that at the time of issuance of the allotment letters in respect of plots in question, it was well within the knowledge of the Appellant-Trust, that there was an impediment in allotment of the plots in question. In spite thereof, Appellant-Trust had gone ahead and allotted plots in question to the respondents, which it could not have done so. In this manner, appellants have played fraud with the general public and thus collected huge amount of money.
27. The aforesaid act of the appellants, clearly falls within the meaning of "Unfair Trade Practice" as defined under Section 2(1)(r) of the Act, relevant portion of which states; "(r) "unfair trade practice" means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely:
xxxxxxxxxxxxxxxx"
28. Appellants having full knowledge that the scheme in question could not see the light of the day, still promoted the scheme to befool the public. Thus, appellants have adopted "unfair method" as well as "deceptive practice" in promoting the sale of the plots in question. This act of appellants, is squarely covered within the meaning of "Unfair Trade Practice".
Consumer Complaint No.129 of 2015 14
29. Furthermore, appellants after having taken substantial amount from the respondents in the year 2011, are still enjoying their hard earned money for last many years. Now, when appellants are not in a position to allot the plots in a habitable condition to the respondents, then why they are still withholding respondents' money. There is no reasonable and plausible explanation, in this regard from the side of the appellants. We deplore such "unfair trade practices" being adopted by the Appellant-Trust, which is a Public Body.
30. It would also be pertinent to observe, that appellants have not given any firm date of handing over the possession of plots in question, to the respondents which also is a "Deceptive Practice". The appellants should have given firm date of handing over of possession, at the time of taking booking amount. By not indicating the true picture with regard to their scheme to the respondents, appellants induced them to part with their hard earned money, which also amounts to "unfair trade practice".
31. Thus, appellants by not delivering the physical possession of fully developed plots to the respondents, till date even after having received more than 90% of the price thereof, are not only deficient in rendering service but are also guilty of indulging into "unfair trade practice". Consumer Complaint No.129 of 2015 15
32. Appellants in the present case, "wants to have the cake and eat it too", as admittedly they have received about 90% of the sale price of the plots. The appellants are thus enjoying possession of the plots as well as substantial amount of consideration paid by the respondents. On the other hand, respondents after having paid substantial amount of the sale consideration, are still empty handed.
34. Such type of unscrupulous act on the part of Appellant- Trust should be dealt with heavy hands, who after grabbing the money from the purchasers, enjoy and utilize their money but do not hand over the plots on one pretext or the other. Appellants want the respondents to run from one fora to other, so that appellants can go on enjoying the respondents' money without any hindrance.
35. It is well settled, that no leniency should be shown to such type of litigants who in order to cover up their own fault and negligence, goes on filing meritless appeal in consumer foras. Equity demands that such unscrupulous litigants whose only aim and object is to deprive the opposite party of the fruits of the decree, must be dealt with heavy hands. Unscrupulous developer like Appellant-Trust, who after taking almost entire cost of the plots, do not perform their part of obligation, should not be spared. A strong message is required to be sent to such type of Consumer Complaint No.129 of 2015 16 Public Bodies, that this Commission is not helpless in such type of matters."
When such is the position, we conclude that the complainant on account of the adoption of unfair trade practice by the opposite parties is entitled to the refund of the amount paid by him towards the price of the plot, along with interest and for the harassment having been suffered by him at the hands of the opposite parties is also entitled to compensation.
12. Accordingly the complaint is allowed and the following directions are issued to the opposite parties:-
i) to refund the sum of Rs.65, 95, 830/-, along with interest at the rate of 9% per annum from the date of filing of the complaint till the date of payment;
ii) to pay Rs.3,50,000/-, as compensation; and
iii) to pay Rs.11,000/-, as litigation costs.
Compliance of this order shall be made by the opposite parties within two months of the receipt of the certified copy of this order.
13. The arguments in this case were heard on 29.2.2016 and the order was reserved. Now, the order be communicated to the parties.
14. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (VINOD KUMAR GUPTA) MEMBER March 08, 2016 Bansal