State Consumer Disputes Redressal Commission
Darshan Singh vs Improvement Trust Jalandhar on 21 July, 2017
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.100 of 2016
Date of Institution: 30.03.2016
Order reserved on: 18.07.2017
Date of Decision : 21.07.2017
Darshan Singh aged 63 years, S/o Sh. Gain Singh, Village Turi,
Sangrur.
.....Complainant
Versus
1. Jalandhar Improvement Trust, Jalandhar (Residential plot in
Surya Enclave Extension) through its Executive Officer;
2. Executive Officer, Jalandhar Improvement Trust, Jalandhar.
....Opposite Parties
Consumer complaint under Section
17(1)(a)(i) of Consumer Protection Act,
1986
Quorum:-
Shri J. S. Klar, Presiding Judicial Member
Smt. Surinder Pal Kaur, Member Present:-
For the complainant :Sh. Sanjeev Goyal, Advocate For the opposite parties :Ms. Kavita Arora, Advocate ................................................
AND
2) Consumer Complaint No.101 of 2016 Date of Institution: 30.03.2016 Order reserved on: 18.07.2017 Date of Decision : 21.07.2017 Dharmpal Jindal S/o Sh. Des Raj Jindal, Ward No.7, H.No.174, Cheeka, District Kaithal (Haryana).
.....Complainant Versus
1. Jalandhar Improvement Trust, Jalandhar (Residential plot in Surya Enclave Extension) through its Executive Officer;
2. Executive Officer, Jalandhar Improvement Trust, Jalandhar. Consumer Complaint No.100 of 2016 2
....Opposite Parties Consumer complaint under Section 17(1)(a)(i) of Consumer Protection Act, 1986 Quorum:-
Shri J. S. Klar, Presiding Judicial Member Smt. Surinder Pal Kaur, Member Present:-
For the complainant :Sh. Sanjeev Goyal, Advocate For the opposite parties :Ms. Kavita Arora, Advocate ................................................ J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
Since, common controversy of facts and law are involved in the above complaints, except minor variations, hence they are being disposed of together by means of this common order, which shall be pronounced by us in main consumer complaint no.100 of 2016 titled as "Darshan Singh Vs. Jalandhar Improvement Trust & another". The facts are taken from complaint no.100 of 2016, which is the main complaint in this case.
2. The complainant has filed this complaint under Section 17(1) (a) (i) of Consumer Protection Act 1986 (in short "the Act") against the opposite parties (to be referred as OPs) on the averments that OPs floated a development scheme of 94.97 acres for the allotment of residential plots in Surya Enclave Extension, Jalandhar Improvement Trust, Jalandhar, commencing from 08.08.2011. They advertised through various channels for allotment of freehold residential plots in above scheme. The complainant submitted application no.076596 for purchase of 200 square yards Consumer Complaint No.100 of 2016 3 plot (Rs.17,000/- per square yard) under "PENSIONER" category with OPs. He deposited Rs.3,40,000/-, as 10% earnest money after getting the same financed from Punjab National Bank, The Mall Patiala. The OPs conducted draw of lot and complainant was the successful allottee in the same. The OPs issued allotment letter dated 02.04.2012 to him allotting residential plot no.194-D measuring 200 square yards, containing the terms and conditions, vide which, he was asked to deposit the entire price of plot of Rs.31,96,950/- within 30 days from the date of issuance of allotment letter, after deducting earnest money of Rs.3,40,000/- and further adding 4% cess as per the Government Instructions and Rs.950/- as site plan charges or if the allottee wants to deposit the payment in installment, then 1/4th amount of the plot+cess charges+site plan charges+ agreement fees has to be deposited within 30 days, total amounting to Rs.6,46,950/- and remaining 75% amount to be paid in five installments alongwith interest, which are as under:
Installment Date fixed Installment Interest Total no. amount amount
1. 01/10/12 5,10,000/- 1,27,500/- 6,37,500/-
2. 01/04/13 5,10,000/- 1,02,000/- 6,12,000/-
3. 01/10/13 5,10,000/- 76,500/- 5,86,500/-
4. 01/04/14 5,10,000/- 51,000/- 5,61,000/-
5. 01/10/14 5,10,000/- 25,500/- 5,35,500/-Consumer Complaint No.100 of 2016 4
The complainant opted for the option to deposit the amount in installments. It is further averred that development facilities will be completed within 2½ years and possession of the plot by the aloottee can be taken from OPs after entrance of agreement of sale. The agreement of sale will be got executed within 30 days from the date of allotment letter. On 30.04.2012, the complainant visited OPs for entering into agreement with them. The complainant deposited Rs.6,46,950/- with OPs, as per allotment letter, but OPs failed to deliver the possession of the allotted plot to him. OP no.2 did not supply the copy of agreement to him executed between the parties. Thereafter, he approached OPs many times for delivering the possession of above plot and to complete the development work, but OPs put off the matter on one pretext or the other. He deposited the remaining amounts in installments as under:
Installment Date fixed Installment Paid vide Date No. amount receipt no.
1. 01/10/12 6,37,500/- 51436-38 01/10/12
2. 01/04/13 6,12,000/- 53006-07 28/03/13
3. 01/10/13 5,86,500/- 54485 27/09/13
4. 01/04/14 5,61,000/- 56320 31/03/14
5. 01/10/14 5,35,500/- 57459 30/09/14 Despite making entire payment of above plot, OPs did not hand over the possession of the plot to him. The complainant came to know in Consumer Complaint No.100 of 2016 5 the 1st week of December, 2015 that some of the plot owners filed cases against OPs before Consumer Commission, out of which complaint nos.81 and 82 of 2013 were allowed by this Commission by holding OP Trust deficient in service. OP Trust filed appeals nos.1215 and 1216 of 2014 before National Consumer Commission New Delhi, which were dismissed with costs and that order was also challenged by them before Apex Court in SLP nos.23471 and 23969 of 2015, which were also dismissed with modification regarding punitive damage. Hon'ble High Court Punjab & Haryana on 08.03.2011 passed the status quo order on the big portion of the land acquired by OPs, but despite that, they floated the scheme on 08.08.2011. No indication was given to general public by OP Improvement Trust in brochure, regarding the pending litigation with the original owners of the land from which it was acquired by it for the development of scheme floated through brochure, thereby misleading the prospective purchasers of residential plots to invest their hard earned money in that scheme. Before floating the scheme, it was the obligation of the OPs to verify the facts that there was no encumbrance on the land acquired by the OPs for the scheme and that too before proceeding to collect money from consumers for allotment of residential plots to them. The plot of complainant bearing no.194-D in the above scheme was also the part of area under litigation, but OPs did not listen to him nor refunded his deposited amount with interest. The complainant has alleged deficiency in service and unfair trade practice on the part OPs. The Consumer Complaint No.100 of 2016 6 complainant has prayed that OPs be directed to refund the deposited amount of Rs.39,18,950/- with interest @16% per annum from the date of deposit till its realization; ii) to pay compensation of Rs.5,00,000/- to him for mental harassment; and iii) to pay Rs.55,000/- as litigation expenses.
3. Upon notice, OPs appeared and filed joint written reply. It is averred in preliminary objections that complainant has no cause of action to file the present complaint. He has sought refund of the total amount paid by him toward plot no.194-D (measuring 200 square yard) in Surya Enclave Extension (94.97 acre), which was duly sanctioned development scheme of Jalandhar Improvement Trust and an allotment letter bearing no.JIT 4609 dated 02.04.2012 was issued to him. It is further averred that complainant visited the office of OP on 30.04.2012 and executed an agreement to sell with the Chairman of the Trust, as envisaged in the allotment letter. It is further averred that as per clause 16 of the Agreement to sell duly executed by the complainant providing that, in case of any dispute between the Trust and the purchaser/allottee, the matter is to be referred to the Secretary Punjab Government, Local Government, Department who shall decide the same as Arbitrator and his decision shall be final and binding upon both the parties. In case of any dispute, complainant could seek the reference before the Arbitrator. It is denied that Trust was not in possession of the plot, as the Hon'ble High Court stayed the dispossession from the land in a writ petition filed by the various land owners, whose land was acquired Consumer Complaint No.100 of 2016 7 by the OP Trust, which is the subject matter of this complaint. It is further averred that plot of the complainant is situated in khasra no.9698 and possession of the said plot was delivered to the Trust by the Land Acquisition Collector, vide Rapat Roz Namcha dated 01.11.2011. Some of the land of the scheme was earlier under the stay order, which has since been vacated by the Hon'ble High Court, vide order dated 22.12.2015 and SLPs have already been dismissed by top court, but in case of plot of complainant, there was no stay order. It is further averred that refund of price of the plot is not permissible under the Rules of allotment i.e. the Punjab Town Improvement (Util. of Land & Allotments of Plots) Rules, 1983. The refund of the earnest money paid by an applicant can only be made, if the applicant has been unsuccessful in draw of lots. As per condition no.7 of allotment letter, allottee could take possession from the Trust after execution of an agreement to sell, but complainant never approached OPs for taking over the possession. The OPs also wrote letter dated 01.03.2016 for taking the possession, but he did not turn up. The Trust was always willing to deliver the possession of the plot to the complainant, but he had not come to take the possession. It is further pleaded that complainant purchased the plot with an object to earn profits solely. In the year 2011-12, the price of the allotted plot was Rs.17,000/- per square yard, whereas the market price at that time was more than Rs.20,000/- per square yard. In the year 2015, the land prices drastically gone so down and land price plummeted in the ranges between Rs.10,000/- to Consumer Complaint No.100 of 2016 8 Rs.12,000/-. On account of above reason, he has filed complaint against OPs. Had the land prices gone up during that period, the complainant would have happily taken active steps for taking possession of the plot from the Improvement Trust, but in view of fall in prices, he did not come forward to take possession of the plot from the Trust and rather demanded the refund of deposited money alongwith interest and damages with an object to earn profits. The OPs already carried the development work in the above scheme by providing all the basic amenities in the whole of the scheme area and spent a lot of finances for the development works in the scheme area. OPs issued letter dated 21.11.2012 to PSPCL, whereby cheque no.426300 dated 20.11.2012 of Rs.1,60,826/- sent to it for laying of electricity poles and cables in the above scheme in the year 2012. In the year 2014, funds had been made available to Water Supply and Sewerage Board for getting the work of sewerage and water supply executed in whole of the area. Vide letter dated 05.10.2015, Trust sought information from Engineering Department regarding development in the above scheme. It is further averred that letter dated 25.01.2016 has been showing the details of the development works completed/partly completed and the development works in progress at the spot. The complaint is also contested by OPs on merits on above referred grounds. It is admitted that complainant was allotted residential plot in above scheme by OPs. It is denied that OPs failed to deliver the possession of the plot in question to complainant. Letter dated March Consumer Complaint No.100 of 2016 9 2016, clearly shows that the trust was in possession of land of above scheme and plot in question. It is further denied by OPs that complainant is covered by the judgment of Munish Dev Sharma and Sanjay Gupta, because the facts are entirely different in both the case. On account of stay order granted by the Hon'ble High Court, the Trust was not in a position to deliver possession of their respective plots to the complainants, whereas in case of the complainants there had been no stay order, hence the Trust was very much in possession of the land, where the plot in question was situated as only a small portion of Surya Enclave Extension Scheme was under stay order and the trust was in possession of rest of the scheme area. The complainant has not complied with the terms and conditions of the allotment letter and had not taken the steps to take possession of the same. It is further not admitted that trust has admitted that plot bearing no.194-D was falling under the area under litigation. The OPs denied any deficiency in service and unfair trade practice on their parts. The OPs have prayed for dismissal of the complaint.
4. The complainant tendered in evidence his affidavit Ex.C-A alongwith copies of documents Ex.C-1 to C-15 and Annexure A to Annexure C and closed the evidence. As against it, OPs tendered in evidence affidavit Ex.OP-A alongwith copies of documents Ex.OP-1 to Ex.OP-10 and closed the evidence. Consumer Complaint No.100 of 2016 10
5. Similarly, evidence is tendered in complaint no.101 of 2016 filed by Dharmpal Jindal complainant consisting of documents Ex.C-1 to C-10 and Annexures A to C. As against it, OPs tendered in evidence affidavit Ex.OP-A alongwith copies of documents Ex.OP-1 to Ex.OP-11 and closed the evidence.
6. We have heard the learned counsel for the parties and have also examined the record of the case. Plot no.194-D in Surya Enclave Extension Jalandhar under Pensioner scheme was allotted to complainant Darshan Singh by the Improvement Trust Jalandhar, vide resolution no.335, dated 08.11.2011 approved by Government vide memo no.8/31/11/(9)-1SS/3213 dated 07.12.2011, vide Ex.C-1 on the record. Similarly, plot no.160-D corner under above scheme was allotted to Dharam Pal complainant of complaint no.101, vide similar resolution no.335, dated 08.11.2011 approved by Government vide memo no.8/31/11/(9)-1SS/3213 dated 07.12.2011, vide Ex.C-1. The terms and conditions of allotment of both the complainants are detailed in allotment letter Ex.C-1 on the record. 10% additional amount was required to be paid in case of corner plot, which pertain to the case of Dharam Pal complainant. Darshan Singh complainant placed on record copy of application and receipt of Rs.3,40,000/- as earnest money Ex.C-2 on the record. Ex.C-3 to C-11 are the copies of receipts of various payments made by complainant to OPs. Ex.C-12 is the notice under Section 36 of the Punjab Town Improvement Act, 1922 by OPs towards acquisition of land, as detailed in it. The plot of complainant Darshan Singh is Consumer Complaint No.100 of 2016 11 comprised in khasra no.9698, which is at serial no.206 of 7-11 kanal for acquisition purposes. Arjan Singh was the person, from whom this land was acquired by OP Trust. Arjan Singh preferred civil writ petition no.3559 of 2011 before the Hon'ble High Court. Status quo order regarding possession was maintained, vide order dated 08.03.2011 Annexure-A on the record. Dispossession was stayed in Civil writ petition no.3559 of 2011 by the Hon'ble High Court, vide Annexure C on the record. Ex.C-13 is the letter addressed to O.P. Aneja, by Public Information Officer Jalandhar Improvement Trust under R.T.I. with regard to pendency of the writ petitions filed against it. Sheet-anchor of the case of the Improvement Trust is the resolution dated 01.01.2011 Ex.C-14 on the record to the effect that Improvement Trust received the physical possession of khasra no.9698 alongwith other khasra numbers of above scheme on 01.11.2011, as per notification recorded in it. Ex.C-15 is the copy of brochure of the above scheme for inviting applications for free hold residential plots from general public with terms and conditions.
7. OPs tendered in evidence copy of resolution dated 01.11.2011 to the effect that physical possession of kharas nos., as set out in it, was received by Improvement Trust on the basis of notification no.6/24/10/(9)-1LG2-2567 dated 03.12.2010 and award dated 31.05.2011. We, thus, find no substance in the submission of counsel for the complainant that the Improvement Trust Jalandhar was not in actual possession of allotted land in this case. Ex.OP-2 is copy of application filed in CWP No.3559/2011 by OPs before the Consumer Complaint No.100 of 2016 12 Hon'ble High Court. Ex.OP-3 is the copy of letter dated 01.03.2016 addressed to Darshan Singh complainant by OPs for payment of balance amount and for executing the agreement. Ex.OP-4 is the copy of basic value master rate list for the year 2014-2015 of above area. Ex.OP-5 is the copy of letter from Chairman Improvement Trust Jalandhar to Assistant Executive Engineer, Technical Unit, PSPCL Jalandhar for expediting the work. Ex.OP-6 is the copy of letter dated 27.10.2014 addressed to Executive Engineer, Punjab Water Supply and Sewerage, Circle Jalandhar from OPs that the amount of Rs.35,00,000/- has been deposited in the above scheme for laying water pipes. The water pipes work should be started immediately so that the possession be given to the allottees by OP. Ex.OP-7 is the list of compete works, ongoing works and list of works for which tenders are being floated. It is dated 05.10.2015. Similarly, Ex.OP-8 is the detail of estimated cost and development works done at site. The OPs completed the work of Rs.254.27 lakhs out of estimated cost of Rs.717.40 lakhs. It is dated 21.02.2015. Ex.OP-9 is detail of estimated cost and development works done at site. It is dated 25.01.2016. Ex.OP-10 is the copy of letter dated 10.09.2013 from OPs to Gaurav Arora to the effect that Hon'ble High Court passed the order of status quo and possession cannot be delivered to him. Ex.OP-A is the affidavit of Vikram Kumar, Trust Engineer of OPs in support of pleas of OPs.
8. So far as the contention of complainants that Improvement Trust is not in possession of the allotted area in the Consumer Complaint No.100 of 2016 13 above complaints and as such it is not able to deliver the possession to them of the allotted areas is concerned, we find no force in it on the basis of document Ex.OP-1 on the record. Improvement Trust received the possession of the acquired land to be allotted on 01.11.2011. The advertisement was issued by OPs regarding above scheme in different channels on 08.08.2011 and brochure in this regard is Ex.C-15 on the record. It has nowhere been mentioned by Improvement Trust that land was subject matter of dispute before Hon'ble High Court. Hon'ble High Court passed the order of status quo particularly in the case of Darshan Singh since his land to be allotted was acquired from Arjan Singh, vide Ex.C-13 on the record. Improvement Trust Jalandhar was under an obligation to publish it in the brochure that land was subject matter of pending litigation before Hon'ble High Court. OPs have suppressed this fact and straightway published brochure during pendency of litigation. The order of status quo was passed much earlier to issuance of brochure and order of Hon'ble High Court is dated 08.03.2011 Annexure A on the record. In the circumstances of the case, when the subject matter was under
pending litigation before Hon'ble High Court, Improvement Trust Jalandhar suppressed this material fact deliberately from the general public and straightway issued the brochure inviting applications from general public. This act of Improvement Trust falls under the category of unfair trade practice with the purpose of promoting the sale, use or supply of any goods or for the provision of any service, by adopting an unfair method or deceptive practice including the Consumer Complaint No.100 of 2016 14 practices as defined in detail in Section 2(1)(r) of the C.P. Act. Improvement Trust proceeded to receive the substantial amounts from the allottees despite the fact that property was under litigation before Hon'ble High Court. Litigation is a toss and nobody knows as to what would be final outcome of litigation. The OPs kept the complainants in darkness about pending litigation and straightway issued the brochure inviting applications from general public. The complainants might not have applied for the allotment of the plots and paid the substantial amounts to OP, had this fact been brought to their knowledge that the order of status quo had already been passed by the High Court with regard to the property to be allotted to the complainants in this case. Since litigation was pending prior to the date of brochure dated 08.08.2011, and it finally came to an end in the Hon'ble High Court in the year 2015, as is evident from the documents Ex.OP-7 to Ex.OP-10 on the record. Even the total work of development has not been completed by the OPs. Work on many counts is still lying incomplete till the year 2015. The complainants were made to unnecessarily wait for four years on account of concealment of the material facts by OPs at the time of issuance of brochure that the subject matter of allotment is under litigation before Hon'ble High Court and status quo order has been passed regarding that.
9. We have gone through the authorities of this Commission in case "Joginder Singh Vs. Jalandhar Improvement Trust" C.C. No.150 of 2014, decided on 20.07.2015. We find that facts of each Consumer Complaint No.100 of 2016 15 case differ. In some circumstances, like this case, this Commission has held in Consumer Complaint no.86 of 2015, decided on 07.03.2017 titled as "Darshan Lal Vs. Jalandhar Improvement Trust" that OPs Jalandhar Improvement Trust indulged in unfair trade practice like this case, they adopted the deceptive practice.
They have not given any date for handing over the possession to allottees and they received the money from the allottees, but suppressed this fact in the brochure with regard to pending litigation before Hon'ble High Court. The matter has also been decided by the National Commission in similar matter in case titled as "Jalandhar Improvement Trust Vs. Munish Dev" 2015(4)CPJ-309. The National Commission has held in this authority, which is fully applicable to the facts of the case that Improvement Trust despite full knowledge of the status quo order of the High Court, issued allotment letters. The Improvement Trust proceeded ahead and allotted plots in question to allottees, despite status quo order, which it could not have done so. Improvement Trust played fraud with the general public and thus collected huge amounts of money from them. The National Commission has held it as unfair trade practice on the part of Improvement Trust and hence allowed the complaint. This authority of the National Commission is fully applicable to the facts of the case. Even Special Leave petition to appeal was filed before the Hon'ble Supreme Court against the order of the National Commission passed in above Munish Dev's case, which was decided on 2.11.2015. The Apex Court only partly allowed the Civil Consumer Complaint No.100 of 2016 16 appeal with regard to recovery from the salaries of the delinquent officers of Improvement Trust and affirmed the order of the National Commission with regard to unfair trade practice of Improvement Trust in allotting the plots. Consequently, the ratio of law laid down in Munish Dev's case, by the National Commission and approved by Supreme Court that when Improvement Trust proceeded to issue allotment letters and issued brochure despite status quo order by High Court and hence they indulged in unfair trade practice with the allottee, which is a deceptive trade practice. Even otherwise, it has appeared on the record that Darshan Singh complainant had been approaching Improvement Trust for execution of buyers agreement, but it avoided the same and there is nothing to disbelieve the version of complainant Darshan Singh on the record. Moreso, when he has already paid the substantial amount of the plot to OPs. While following the view of the National Commission in Munish Dev's case (Supra), we hold that OPs indulged in unfair trade practice and deceptive trade practice and collected money from the complainants, despite full knowledge of the fact that order of status quo has been passed by the Hon'ble High Court in writ petitions and they were not in condition to issue brochure and allotment letters and to receive the money from the above referred allottees due to above interdictory order.
10. In the case of Dharampal Jindal (Consumer Complaint no.101 of 2016) OPs have not intentionally given Khasra number in the written statement, where the allotted plot is comprised. This act Consumer Complaint No.100 of 2016 17 of OPs further adds up to deceptive practice on their part. The facts of Dharampal Jindal's case are identical except that Dharampal Singh has not paid the entire amount of plot to OP and only paid a part thereof. We have already observed that OPs could not have issued the brochure/advertisement for allotment of plots and proceeded to allot plots and to collect money from the allottees, in violation of order of status quo passed by the Hon'ble High Court. The act of OPs is deceptive practice and unfair trade practice as defined in C.P. Act. In the circumstances of the case, the complainants are held entitled to the entire deposited amount by them with interest @12% per annum from the date of deposits of money till actual payment.
11. As a consequence of our above discussion, we accept the above referred complaint no.100 of 2016 and complaint no.101 of 2016. In complaint no.100 of 2016, we direct OPs to refund the entire deposited amounts by complainant alongwith interest @ 12% per annum from the date of deposit of money till its realization; further to pay Rs.30,000/- as compensation for mental harassment; and to pay Rs.20,000/- as costs of litigation. The above amounts shall be payable within 45 days from the date of receipt of certified copies of the order by OPs to complainant Darshan Singh.
12. In complaint no.101 of 2016, we direct OPs to refund the entire deposited amounts by the complainant alongwith interest @ 12% per annum from the date of deposit of money till its realization; Consumer Complaint No.100 of 2016 18 further to pay Rs.30,000/- as compensation for mental harassment; and to pay Rs.20,000/- as costs of litigation. The above amounts shall be payable within 45 days from the date of receipt of certified copies of the order by OPs to complainant Dharampal Jindal.
13. Arguments in above complaints were heard on 18.07.2017 and the orders were reserved. The certified copies of the order be communicated to the parties, as per rules.
14. The complaints 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 July 21, 2017.
(MM)