State Consumer Disputes Redressal Commission
1. Smt. Satwant Kaur, vs The Emaar Mgf Land Private Limited, on 3 September, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Execution Application No. : 48 of 2012 Date of Institution : 03.12.2012 Date of Decision : 03/09/2013 1. Smt. Satwant Kaur, aged about 65 years widow of Late Sh. Nirmal Singh resident of House No.3229, Sector 35-D, Chandigarh UT. 2. Sh. Hardeep Singh, aged about 48 years, son of Late Sh. Nirmal Singh, resident of House No.3229, Sector 35-D, Chandigarh. Decree Holders/complainants V e r s u s The EMAAR MGF Land Private Limited, through its Branch Head/Manager, SCO Nos.120-122, First Floor, Sector-17-C, Chandigarh UT 160017. .... Judgment Debtor/Opposite Party Execution Application under Section 27 (1) of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
Argued by: Sh. Neeraj Pal Sharma, Advocate for the Decree Holders/complainants.
Sh. Ashish Chopra, Advocate for the Judgment Debtor/Opposite Party PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This Criminal Petition/Execution Application has been filed by the Decree Holders/complainants, under Section 27 (1) of the Consumer Protection Act, 1986 (hereinafter to be referred as the Act only), for enforcement of the order dated 16.08.2012, passed by this Commission, in the Consumer Complaint bearing No.05 of 2012.
2. The complainants filed a Consumer Complaint bearing No.05 of 2012, instituted on 09.01.2012, stating therein that Shri Anil K Kalia s/o Shri Krishan Kumar, and Shri Beant Singh, S/o Shri Amar Singh, applied for a residential plot, in the project of the Opposite Party, and they were allotted plot no. 294 in Augusta Greens, Sector 109, Mohali Hills, Mohali, Punjab. The basic sale consideration of the plot, in question, was Rs.34,50,000/-, while the total cost of the same was Rs.40,50,354/-. Plot Buyer`s Agreement dated 30.06.2007 Annexure C-3, was executed, between the Shri Anil K Kalia, s/o Shri Krishan Kumar, Shri Beant Singh S/o Shri Amar Singh and the Opposite Party, in respect of the plot, in question. The possession of plot was to be delivered at the maximum within a period of three years, from the date of execution of the Agreement aforesaid, i.e. from 30.06.2007. Shri Anil K Kalia and Shri Beant Singh, substituted the customer code, in favour of the complainants, on 04.04.2008, and they (complainants), as co-allottees stepped into their shoes. The transfer was duly accepted by the Opposite Party. The entire sale consideration was paid to the Opposite Party, by the complainants, but possession of the plot, in question, was not delivered. It was stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. Accordingly, the complaint aforesaid under Section 17 of the Act was filed by the complainants, claiming vacant possession of the fully developed plot, in question, and other reliefs.
3. The complaint was accepted, by this Commission, vide order dated 16.08.2012, against the Opposite Party/Judgment Debtor, with costs, in the following manner:-
For the reasons, recorded above, the complaint is accepted with costs, in the following manner:
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(i) The Opposite Party is directed to deliver the physical possession of the fully developed Plot No.294, Augusta Greens, Sector 109, Mohali Hills, Mohali, Punjab to the complainants, within three months from the date of receipt of a copy of the order, subject to the payment of the remaining amount, against the sale price of the plot i.e. Rs.40,50,354/-, as shown in Annexure C-2.
(ii) The Opposite Party is further directed to pay compensation of Rs.One lac to the complainants, as indicated in Para No.12 of the order.
(iii) The Opposite Party is further directed to pay penalty to the complainants @Rs.50/ per sq. yard, per month, for the period from 30.06.2010 until realization of the amount, as indicated in Para No.11 of the order.
(iv) The Opposite Party shall also pay costs of litigation of Rs.10,000/- to the complainants.
(v) The aforesaid amounts depicted in Clauses (ii) and (iii) shall be paid within 45 days, from the date of receipt of a copy of the order, failing which, the Opposite Party shall pay interest @12% p.a. on the same till realization, besides costs.
4. First Appeal No.758 of 2012, titled as Emaar MGF Land Ltd. Vs. Satwant Kaur and Anr., was filed by the appellant/Judgment Debtor/Opposite Party, against the order dated 16.08.2012, passed by the Commission, in the National Consumer Disputes Redressal Commission, New Delhi, which was dismissed by it, vide order dated 11.01.2013.
5. Since, the order dated 16.08.2012, passed by this Commission, and upheld by the National Consumer Disputes Redressal Commission, New Delhi, was not complied with, by the Opposite Party/Judgment Debtor, the instant Criminal Petition/Execution Application under Section 27 (1) of the Act, was filed by the Decree Holders/Complainants, stating that till that date, neither physical possession of the fully developed plot, had been handed over to them, nor other directions were complied with. Accordingly, a prayer was made, to proceed under the Provisions of Section 27 (1) of the Act, against the Opposite Party/Judgment Debtor.
6. Show cause notice, under Section 27 of the Act, was issued to Sh. Vikas Gupta, Project Manager, Head, Emaar MGF Land Private Limited, SCO Nos.120-122, First Floor, Sector 17/C, Chandigarh, whose name was supplied by the Decree Holders/Complainants.
7. Reply was filed by the Opposite Party/ Judgment Debtor, wherein, it was stated that the parties, being bound by the terms and conditions of the Plot Buyer`s Agreement, which was executed between them, could not go beyond the same. It was further stated that, according to Clause 23 of the said Agreement, the Company was responsible to provide internal services, within the project, which interalia included laying of the roads, water lines, sewer lines, electric lines etc. etc. It was further stated that, in the said Clause, it was made clear, that external and peripheral works, such as water lines, storm water drains, roads, electricity, horticulture, and other services integral to the infrastructure, were to be provided by the State Government, or the Local Authorities. It was further stated that the Opposite Party, as per Clause 23 of the Plot Buyer`s Agreement, only undertook to provide internal development. It was further stated that the internal roads, had been laid, in the area. It was further stated that PHE services, including water, sewerage and storm lines etc., had been laid, in the area, where the plot of the complainants is situated. It was further stated that a number of plot owners, in the vicinity of the plot of the complainants were offered possession, and they after taking the same (possession of plots), had initiated construction on their plots.
8. Original letter of offer of possession to Sh. Hardeep Singh, one of the Decree Holders/Complainants, in respect of the plot, in question, was handed over on 14.01.2013, as is evident from the order sheet.
On 24.01.2013, this letter of possession was returned by the Decree Holders/Complainants, on the ground, that when Decree Holder No.2/complainant No.2, went to the site, where the said plot was carved, it was found that there was no development.
9. We have heard the Counsel for the parties, and have gone through the record of the case, carefully.
10. The Counsel for the Decree Holders/Complainants, submitted that, no doubt, the remaining directions, contained in the order dated 16.08.2012, passed by this Commission, and upheld by the National Consumer Disputes Redressal Commission, New Delhi, were complied with, by the Opposite Party/Judgment Debtor, but the plot, in question, which was allotted, in favour of the Decree Holders/ Complainants, was not fully developed. He further submitted that the offer of possession of the plot, which was not fully developed by the Judgment Debtor, did not amount to the compliance of direction number 14 (i) of the order dated 16.08.2012, passed by this Commission, in the Consumer Complaint bearing No.05 of 2012. He further submitted that completion and occupation certificates, in respect of the project, in question, had not been obtained by the Opposite Party/Judgment Debtor, and, as such, it could not be said that offer of possession of the plot, in question, was legal and valid. He further submitted that, it was, under these circumstances, that the letter of offer of possession was returned by the Decree Holders/Complainants, to the Counsel for the Opposite Party/Judgment Debtor, on 24.01.2013. He further submitted that since direction number 14 (i) of the order dated 16.08.2012, passed by this Commission, in the Consumer Complaint bearing No.05 of 2012, was not complied with, by the Opposite Party/Judgment Debtor, Sh. Vikas Gupta, Project Manager, Head Emaar MGF Land Private Limited, Judgment Debtor, be punished under Section 27 (1) of the Act, for willful disobedience of the same.
11. On the other hand, the Counsel for the Opposite Party/Judgment Debtor, submitted that admittedly, the remaining directions, contained in the order dated 16.08.2012, passed by this Commission, and upheld by the National Consumer Disputes Redressal Commission, New Delhi, have already been complied with. He further submitted that according to Clause 23 of the Plot Buyer`s Agreement, which was executed between the parties, the Opposite Party/Judgment Debtor was responsible to provide internal services, within the project, which, interalia, included laying of the roads, water lines, sewer lines, electric lines etc. etc. He further submitted that, in the said Clause, it was made clear, that external and peripheral works, such as water lines, storm water drains, roads, electricity, horticulture and other services integral to the infrastructure, were to be provided by the State Government or the Local Authorities. He further submitted that the Opposite Party/Judgment Debtor, as per Clause 23 of the Plot Buyer`s Agreement, only undertook to provide internal development, which had already been made by it. He further submitted that, vide Notification Nos. 18/41/2006-5HG-II/7397 dated 11.08.2006, 18/41/2006-5HG-II/12790 dated 22.12.2006 and CTP(Pb)MPR.2/601 dated 22.01.2008, the project, in question, in which the plot was allotted, in favour of the Decree Holders/Complainants, was exempted from the provisions of the Punjab Apartment and Property Regulation Act, 1995 (Punjab Act No.14 of 1995) (hereinafter to be referred as the PAPRA 1995), and, as such, the occupation and completion certificates were not required to be obtained, from the State Government, by the Opposite Party/Judgment Debtor, before handing over possession of the plot, in question, to the Decree Holders/Complainants. He further submitted that the order dated 16.08.2012, passed by this Commission, and upheld by the National Consumer Disputes Redressal Commission, New Delhi, has been duly complied with, by the Opposite Party/Judgment Debtor, and, as such, the Execution Application under Section 27(1) is liable to be dismissed.
12. Admittedly, the directions, contained in paragraph number 14 (ii) (iii) (iv) and (v) of the order dated 16.08.2012, passed by this Commission, and upheld by the National Consumer Disputes Redressal Commission, New Delhi, have already been complied with, by the Opposite Party/Judgment Debtor. The question arises, as to whether, the allotted plot, in respect whereof, the offer of possession was made by the Opposite Party/Judgment Debtor, to the Decree Holders/Complainants, as is evident from the order sheet dated 14.01.2013, is fully developed or not. No doubt, the original letter of possession, in respect of the plot, in question, was returned on 24.01.2013, by the Decree Holders/Complainants, as is evident, from the order sheet dated of the even date, on the ground, that the plot, in question, was not fully developed. The parties were governed by the terms and conditions of the Plot Buyer`s Agreement, executed between them. Clause 23 of the Plot Buyer`s Agreement, dated 30.06.2007, Annexure C-3, executed between the parties, reads as under:-
The Company shall be responsible to provide internal services within the Project, which, interalia, includes laying of the roads, water lines, sewer lines, electrical lines etc. However, it is understood that external or peripheral services such as water lines, sewer lines, storm water drains, roads, electricity, horticulture and other such services integral to the infrastructure are to be provided by the State Government authorities and or the local authorities.
13.
It is evident, from the afore-extracted Clause 23 of the Plot Buyer`s Agreement, executed between the parties, that the Company was responsible to provide internal services within the Project, which, interalia, included laying of the roads, water lines, sewer lines, electrical lines etc. It is further evident, from the afore-extracted Clause 23 of the Plot Buyer`s Agreement, that external or peripheral services, such as water lines, sewer lines, storm water drains, roads, electricity, horticulture and other such services integral to the infrastructure were required to be provided by the State Government, or the local authorities.
14. In reply to the Execution Application, in paragraph number 9, it was, in clear-cut terms, stated by the Opposite Party/Judgment Debtor, that the internal roads, PHE services, including water, sewerage, electrical and storm lines had been laid, in the area, where the plot of the Decree Holders/Complainants, is situated. This reply was duly supported by the affidavit of Mr. Mohit Kaura, DGM, Customer Services and Authorized Representative of the Judgment Debtor. Even, the additional affidavit of Mr. Mohit Kaura was also submitted to support the averments, contained in the replies. These services were required to be provided by the Opposite Party/Judgment Debtor, as per Clause 23 of the Plot Buyer`s Agreement, executed between the parties. As stated above, the parties are bound by the terms and conditions of the Plot Buyer`s Agreement, executed between them. Nothing was brought, on the record, by the Decree Holders/Complainants, that the aforesaid amenities, had not been provided, at the site, by the Opposite Party/Judgment Debtor, where the said plot is located. Not only this, according to the Opposite Party/Judgment Debtor, a number of other allottees, in the vicinity of the plot, in question, have already been handed over possession, and they have initiated construction activities thereon. It is, therefore, held that as per Clause 23 of the Plot Buyer`s Agreement, executed between the parties, the amenities/services, which were required to be provided, by the Opposite Party/Judgment Debtor, have already been provided. It, therefore, could not be said that the said plot was not fully developed. The letter with regard to offer of possession of the plot, in question, was handed over to the Decree Holders/Complainants, on 14.01.2013. They, however, returned the said letter, on 24.01.2013, on the ground, that the plot was not fully developed. The submission of the Counsel for the Decree Holders/Complainants, that offer of possession, in respect of the plot, in question, was not accepted, by the Decree Holders/Complainants, as the same (plot, in question), was not fully developed, being devoid of merit, must fail, and the same stands rejected.
15. The next question, that falls for consideration, is, as to whether, the Opposite Party/Judgment Debtor was required to obtain the occupation and completion certificates, as envisaged by Section 14 of the PAPRA 1995. Section 14 of the PAPRA 1995 reads as under:-
14.Occupation and completion certificate:- (1) It is the responsibility of the promoter:-
(i) in the case of apartments, to obtain from the authority required to do so under any law completion and occupation certificates for the building and if a promoter, within a reasonable time, after the construction of the building, does not apply for an occupation certificate from the aforesaid authority, the allottee of an apartment may apply for an occupation certificate from the said authority; and
(ii) in the case of a colony, to obtain completion certificate from the competent authority to the effect that the development works have been completed in all respects as per terms and conditions of the licence granted, to him under section 5.
(2) The authority referred to in sub-section (1) shall, after satisfying itself about the agreement of sale between the promoter and the allottee, and the compliance of the building regulations and all other formalities, issue an occupation certificate.
16. Section 44 of the PAPRA 1995 reads as under:-
44. Exemption:- (1) Subject to the provisions of section 32, nothing in this Act shall apply if the promoter is:-
(a) a local authority or statutory body constituted for the development of land or housing: or
(b) a company or a body created for development of land or housing or promotion of industry wholly owned and controlled by the State Government or the Central Government.
(2) If the State Government is of the opinion, that the operation of any of the provisions of this Act, causes undue hardship, or circumstances exist which render it expedient to do so, it may exempt, by a general or special order, any class of persons or areas from all or any of the provisions of this Act, subject to such terms and conditions as it my impose.
17. No doubt, in the normal course, it was required of the Opposite Party/Judgment Debtor, to obtain occupation and completion certificates, under Section 14 of the PAPRA 1995. However, in exercise of the powers vested in him, under Section 44(2) of the PAPRA 1995, and all other powers enabling him, to act in his behalf the Governor of Punjab, was pleased to exempt the aforesaid Housing Project of M/s Emaar MGF Land Ltd/Opposite Party/Judgment Debtor, from the provisions of the Punjab Apartment and Property Regulation Act, 1995 (Punjab Act No.14 of 1995), except Section 32, which does not relate to the subject matter, vide Notification Nos. 18/41/2006-5HG-II/7397 dated 11.08.2006, 18/41/2006-5HG-II/12790 dated 22.12.2006 and CTP(Pb)MPR.2/601 dated 22.01.2008, Once exemption was granted, by the State Government, vide the Notifications aforesaid, to the project of the Opposite Party/Judgment Debtor, from the provisions of the PAPRA 1995, it could not be said that, in the absence of occupation and completion certificates, legal possession of the plot, in question, could not be handed over to the Decree Holders/Complainants. Had vide these Notifications, the project of the Opposite Party/Judgment Debtor, been not exempted, from the provisions of the PAPRA 1995, the matter would have been different.
In that event, there would have been some merit, in the submission of the Counsel for the Decree Holders/Complainants. It is, therefore, held that obtaining of the occupation and completion certificates, as envisaged by Section 14 of the PAPRA 1995, was not necessary, by the Opposite Party/Judgment Debtor, in respect of its project, in view of the exemption, having been granted to it, vide the Notifications, aforesaid. Since the offer of possession of plot, in question, vide letter dated 14.01.2013, copy whereof is placed, on the record, was made to the Decree Holders/Complainants, and they returned the said letter, on 24.01.2013, it could not be said that the said offer was only a paper transaction and not actual. The submission of the Counsel for the Decree Holders/complainants, therefore, being devoid of merit, must fail, and the same stands rejected.
18. The Opposite Party/Judgment Debtor is again directed to offer possession of the plot, in question, within 10 days, to the Decree Holders/Complainants and they (Decree Holders/Complainants) shall take over the possession thereof, immediately, on compliance of the terms and conditions of such offer.
19. For the reasons recorded above, the Execution Application/Criminal Petition is dismissed, with the aforesaid observations, with no order as to costs.
20. Certified copies of this order, be sent to the parties, free of charge.
21. The file be consigned to Record Room, after due completion.
Pronounced.
September 3, 2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Rg