National Consumer Disputes Redressal
Bathinda Development Authority vs Gurvrinder Singh & Anr. on 17 January, 2019
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 510 OF 2017 (Against the Order dated 22/11/2016 in Complaint No. 15/2016 of the State Commission Punjab) 1. BATHINDA DEVELOPMENT AUTHORITY THROUGH ITS ESTATE OFFICER, BDA COMPLEX, BHAGU ROAD, BATHINDA, CHANDIGARH ...........Appellant(s) Versus 1. GURVRINDER SINGH & ANR. S/O. SH. HARCHAND SINGH, R/O. VIRK KHURD, TEHSIL, DISTT. BATHINDA, PUNJAB 2. SMT. HARJITPAL KAUR W/O. SH. GURVRINDER SINGH, R/O. VIRK KHURD, TEHSIL, DISTT. BATHINDA PUNJAB ...........Respondent(s) FIRST APPEAL NO. 511 OF 2017 (Against the Order dated 22/11/2016 in Complaint No. 16/2016 of the State Commission Punjab) WITH
IA/3680/2017(Stay),IA/3681/2017(Condonation of delay) 1. BATHINDA DEVELOPMENT AUTHORITY BADA COMPLEX, BHAGU ROAD, BATHINDA, CHANDIGARH ...........Appellant(s) Versus 1. JAGSEER SINGH & ANR. SON OF SHRI DARSHAN SINGH, PERMANENT RESIDINT OF HOUSE NO. 20366, STREET NO. 30-A, AJIT ROAD, BATHINDA, PUNJAB 2. SMT. HARPREET KAUR WIFE OF SHRI JAGSEER SINGH, PERMANENT RESIDINT OF HOUSE NO. 20366, STREET NO. 30-A, AJIT ROAD, BATHINDA, PUNJAB ...........Respondent(s) FIRST APPEAL NO. 512 OF 2017 (Against the Order dated 22/11/2016 in Complaint No. 17/2016 of the State Commission Punjab) WITH IA/3682/2017(Stay),IA/3683/2017(Condonation of delay) 1. BATHINDA DEVELOPMENT AUTHORITY BDA COMPLEX, BHAGU ROAD, BATHINDA, CHANDIGARH ...........Appellant(s) Versus 1. DAVINDERJEET SINGH & ANR. S/O. SH. HARDEV SINGH, R/O. STREET NO. 5, BABA FARID NAGAR, BATHINDA, PUNJAB 2. VIKAS CHANDER GARG S/O. SH. BAHGWAN DASS, R/O. H NO. 11073, KARTAR BASTI, MAHANT WALI GALI, BATHINDA, PUNJAB ...........Respondent(s) FIRST APPEAL NO. 513 OF 2017 (Against the Order dated 22/11/2016 in Complaint No. 77/2016 of the State Commission Punjab) WITH IA/3684/2017(Stay),IA/3685/2017(Condonation of delay),IA/14271/2018(Placing addl. documents) 1. BATHINDA DEVELOPMENT AUTHORITY Through its Estate Officer, BDA Complex, Bhagu Road, Bathinda, Punjab ...........Appellant(s) Versus 1. ASHOK KUMAR GUPTA S/o Shri Balwant Rai, R/o #252, Kamla Nehru Colony, Near Bibi Wala Chowk, Bathinda, Punjab ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER For the Appellant : Ms. Rachana Joshi Issar, Ms. Vandana Mishra, Ms. K. Vaijayanthi & Mr. Shailabh Pandey, Advocates For the Respondent : Mr. Harish Goyal, Advocate Dated : 17 Jan 2019 ORDER PER HON'BLE M. SHREESHA, MEMBER Delay condoned.
Aggrieved by the orders dated 22.11.2016 passed by the Punjab State Consumer Disputes Redressal Commission, Chandigarh, (for short "the State Commission") in CC Nos. 15, 16, 17 and 77 of 2016, Bathinda Development Authority (hereinafter referred to as "BDA") has preferred these First Appeals bearing No. 510 to 513 of 2017 under Section 19 of the Consumer Protection Act, 1986 (for short "the Act"). By the impugned order, the State Commission has allowed the Complaint in part directing BDA to complete the entire developmental work as referred in the Letter of Intent (LOI) and deliver the possession within a period of 30 days from the date of the receipt of the order till the date of possession, together with interest @ 12% p.a. on the deposited amount from the date of deposit till the date of the actual delivery of possession. Compensation of ₹25,000/- and costs of ₹11,000/- were also awarded.
2. Since the facts in these Appeals are all common they are being disposed of by this common order. For the sake of convenience FA No. 510 of 2017 arising out of the impugned order dated 22.11.2016 in CC No. 15/2016 is being taken as a lead case.
3. The brief facts as stated in the Complaint are that the plot bearing No. 328, admeasuring 200 sq. yds, situated at Urban Estate, Phase-IV & V (BDA Enclave), Bathinda was allotted by BDA to Sh. Naresh Kumar Mehta vide Letter of Intent bearing No. 1758 dated 4.5.2011. Subsequently the Complainants purchased the said plot from Sh. Naresh Kumar Mehta and the Letter of Intent was transferred in the name of the Complainant vide letter dated 22.12.2011. It was stated that Sh. Naresh Kumar Mehta had deposited various amounts with BDA totalling ₹26,25,600/-. As per the Letter of Intent, it was agreed by BDA that possession of the plot in question would be delivered within 18 months from the date of issuance of the Letter of Intent i.e. 4.5.2011 after completion of the developmental work.
4. It was averred that even after expiry of four and half years BDA, has failed to deliver the possession and the developmental work is still incomplete. It was pleaded that even the basic amenities such as roads, lights, water, sewage and the promised amenities were far from complete. It was stated that the Complainant had earlier filed CC No. 282 dated 07.05.2014 before the District Forum which was allowed and the demand of the BDA for 2% additional amount and 5% of the total amount was found to be illegal and further BDA was also directed to pay interest @ 12% p.a. on the deposited amount from the date of deposit till the completion of the developmental work and hand over possession within 30 days to the Complainant. The Complainant was directed to make the payment as per the schedule. That order was challenged by BDA before the State Commission and vide an order dated 03.08.2015, the Appeal was decided in favour of BDA for want of pecuniary jurisdiction of the District Forum.
5. It was averred that BDA issued an allotment letter dated 05.03.2014 despite the fact that the developmental work was incomplete as on that date. Hence the Complainant approached the State Commission seeking the following reliefs:-
"i) The opposite party be directed to complete the development works and hand over possession of the plot in question to the complainants after the completion of development works as per the terms and conditions of the allotment letter;
ii) The opposite party be directed to pay interest to the complainant @ 18% per annum, w.e.f. the date of payments of the amount by the complainant to opposite party till the date of delivery of possession of the plot to the complainants after the completion of the development work;
(iii) The opposite party be directed to pay ₹2,00,000/- as compensation on account of mental tension, agony, botheration, harassment and humiliation suffered by the complainants and;
(iv) Further the opposite parties be directed to pay a sum of ₹33,000/- to the complainants as litigation expenses.
V) The complainant be awarded any other additional or alternative relief for which he may be found entitled to."
6. BDA filed their Written Version resisting the Complaint on the ground that the Complainants are not original allottees and are transferees and, therefore, they are not consumers; that if the Complainants are not interested in the scheme they had an option to withdraw from the scheme at any time by moving an application with the Estate Officer as per Conditions No. 15 and 16 of the Letter of Intent; the allotment letter was already issued to the Complainants vide letter No. 1539 dated 05.03.2014; the possession of the plot was to be given to the allottees within 30 days from the date of issue of allotment letter but the possession was not taken by the allottees within 30 days and, therefore, it is deemed to have been handed over from the expiry of the said date. It was averred that the work on the basic amenities has been in progress and has been completed and, therefore, the Authority is well within its right to demand the balance 5% of the plot; 2% cess on account of 'The Punjab State Cancer and Drug Addiction Treatment Infrastructure Fund',. It was denied that the allotment letter was issued without completion of the basic amenities. It was pleaded that the Complainants did not exercise their choice from withdrawing from the scheme and as long as they are continuing in the scheme, they are not entitled for any interest and, therefore, there is no deficiency of service on their behalf.
7. The State Commission based on the evidence adduced and the pleadings put forward observed as follows:-
"In case the complainants have not withdrawn from the scheme then what is the position? We are not to consider one Clause but we are to see entire LOI and allotment letter. In case the complainants opt for payment in instalment then he is to pay 12% interest and in case it is delayed upto 1 year then penal interest @ 3%, if it is delayed upto 2 years then 4% penal interest and if it is delayed upto 3 years or more than penalty @ 5% p.a. In case for any delay, the interest and penalty is to be paid by the complainants then similar provision must be there for the OP. OP has not referred to any reason why there was delay in offering the possession within the stipulated period. Even according to Clause 11 of the allotment letter, in case the complainants do not come forward to take the possession within 30 days then there is a presumption to have taken the possession within 30 days is not to be considered in isolation. It is to be considered along with conditions mentioned in LOI. According to Clause 15, the possession of the plot was to be handed over to the allottee after completion of development work at site. Therefore, now we are to see whether the development work at the site was complete. OP had tendered the evidence of Gurjant Singh, Estate Officer, Bathinda Development Authority. Along with Ex. C-6 some letters i.e. letter No. 1347 dated 8.5.2014 in which it has been mentioned that in front of Plot No. 96 and 942, a road is complete and premix carpet is remaining and simply a reference has been made about the road in front of 770. There is another letter from Sub Divisional Engineer, Bathinda Development Authority, Bathinda to Executive Engineer, Bathinda Development Authority, Bathinda in which it has been stated that water and sewerage pipes have been completed. There is another letter No. 347 dated 8.5.2014, in which it has been mentioned that LT line and street light has been completed. There is another letter No. 1422 dated 15.5.2014 in which it has been stated that the work of 100 approach road in Urban Estate is complete whereas the development work of park is in progress. Therefore, development work was not complete when allotment letter was issued. There is no evidence of demarcation of plots, water supply, completion of roads, boundary wall etc. No letter was issued that development work is complete or there is no reference in the allotment letter regarding completion of development work. Therefore, allotment letter could not be issued before completion of development work in violation of Condition No. 11 of LOI. A reference can be made to Appeal No. 483 of 2014 and others decided by this Commission vide its order dated 3.8.2015 vide which the order passed by the District Forum was affirmed that OP was bound to give the possession within a period of 1.5 years after completion of the development work and it was observed in that appeal that the development work was not completed within that period, accordingly, the order passed by the District Forum was affirmed that mere issuance of the letter of allotment is not sufficient to prove the completion of development work and they will pay interest @ 12% per annum on the amount deposited till the development work is completed and actual possession is delivered to the allottee. This complaint pertains to the same scheme. It has not been stated by the counsel for the OP whether they had challenged the order passed by this Commission in the form of appeal/revision petition before the Hon'ble National Commission. Therefore, in case this principle has been followed by this Commission in the abovesaid appeal then this complaint pertaining to the same scheme, same parameters are to be followed by this Commission. Whether the complainant is entitled to any compensation if there is delay in delivery of possession with complete development work. It has been held by the Hon'ble Supreme Court in IV (2010) CPJ 7 (SC) "DDA versus Krishan Lal Nandrayog". In that case, there was inordinate delay in delivery of possession of flats. District Forum allowed interest @ 18%. State Commission reduced to 15%. National Commission upheld the order of the State Commission. Appeal filed before the Hon'ble Supreme Court and it was observed by the Hon'ble Supreme Court that award of cost is not interest in substance but it is to compensate respondents by way of damages for loss in terms of money, mental agony and other sufferings of respondents by late delivery of possession. Hon'ble Supreme Court in 2005 (1) CPJ 19 (SC) "Ghaziabad Development Authority versus Rajesh Chandra" also upheld the interest awarded @ 12%. Further Hon'ble National Commission in II(2014) CPJ 131(NC) "PUDA versus Kamalpreet", in that case, there was delay of three years in handing over the possession in which over and above the direction to the Ops to deliver the possession, a sum of ₹1 lac was awarded as compensation. Therefore, wherever there is delay in delivery of possession on the part of the OP, the other party can be compensated, it can be in the form of interest over the deposit of amount till the delivery of possession with complete development work can be given. Therefore, we are of the opinion that Ops are deficient to deliver the possession of the plot to the complainants after completion of the development work."
8. Learned Counsel for the Appellant vehemently contended that the State Commission had erred in granting interest @ 12% p.a. as this would only unduly enrich the Complainant. Learned Counsel relied on Clauses 13, 15 and 16 of the Letter of Intent dated 04.05.2012 which are reproduced as under:-
"13. The said plot is being offered on "as is where basis is"
"15. The possession of the said plot shall be handed over to the allottee after completion of development works at site within a period of 1.5 years from the date of issuance of this Letter of Intent. In case for any reason, B.D.A. is unable to deliver the possession of plot within this stipulated period, you will have a right to withdraw from the scheme by moving an application to the Estate Officer and in such case B.D.A. shall refund the entire amount deposited by the applicant along with 10% simple interest. Apart from this, there shall be no other liability of the Authority."
"16. In case B.D.A. is unable to give the possession of the plot due to any reason, the allocation of the plot shall be cancelled and BDA shall refund the entire amount deposited by you along with a simple interest @ 10 p.a. Apart from this there shall be no other liability of the Authority."
9. She further relied on Clauses 1, 11 and 19 of the letter of allotment dated 05.03.2014 which was issued in favour of the Complainants. The same is reproduced as under:-
"1. The allotment shall be subject to the provisions of Punjab regional and town Planning and Development Act 1995, Rule and Regulations and policies framed there-under as well as the terms of and condition of the brochure/LOI on the basis of which application was made by you."
11. Possession of plot shall be handed over to the allottee within 30 days from the date of issue of allotment letter. If possession is not taken by the allottee within 30 days from the date of issue of allotment letter, it shall be deemed to have been handed over on the expiry of the said date."
19. The Plots shall be allotted on "as is where is" basis. No person shall have any claim to an alternative plot due to any reason."
10. She contended that in terms of Clause 11 of the letter of allotment, possession was handed over to the Complainants but they have failed to take possession even after 30 days of the issuance of letter of allotment and, therefore, possession is deemed to have been handed over on expiry of 30 days. No separate letter was required to be issued. She vehemently argued that it was only to avoid the liability to raise construction on the plot that the Complainant has preferred to file this Consumer Complaint with an ulterior motive of undue enrichment.
11. Learned Counsel appearing for the Respondents strongly opposed this argument and contended that the developmental work was not complete as on the date of offer of possession and, therefore, possession cannot be construed to be legal viewed from any angle. Learned Counsel submitted that many senior citizens after retirement with a dream of owning a home purchased the plot and paid the entire amount to BDA in 2011 but the BDA did not complete the developmental works and, therefore, the purchasers cannot be forced to take possession of an undeveloped plot and begin construction.
12. The facts not in dispute are the purchase of the plot from one Sh. Naresh Kumar who is the original owner. The contention of the Appellant that the Complainants are not consumers because they are not original allottees but transferees is completely unsustainable in the light of the fact that amounts were also deposited by the Complainants and accepted by BDA and, therefore, it is deemed that consideration for the said plot has been paid and thus the Complainants fall within the definition of 'Consumer' as defined under Section 2(1)(d) of the Consumer Protection Act, 1986. It is also an admitted fact that it was agreed by BDA that the possession of the plot in question shall be delivered within 18 months. During the course of arguments, Learned Counsel for the Appellant submitted that the Letter of Intent cannot be construed to be a concluded contract between the parties. It is also not in dispute that the Letter of Intent was issued in favour of the purchaser and the terms of the Letter of Intent include the tentative price of the plot, the number of plot, the square yards, the total price of the plot, the additional price for corner plot, the schedule of payment and also the time for delivery of possession of plot. In the same Letter of Intent an option was also given to the Complainant to withdraw from the scheme if the possession was not delivered within time which the Counsel for BDA is relying on. A perusal of Letter of Intent clearly shows that all these terms and conditions were incorporated. It is an offer made by BDA which was accepted by the Complainant and the acceptance was also communicated and, therefore, it is construed as a concluded contract between the parties. It is pertinent to note that BDA has also been receiving payments from purchasers based on the price mentioned in the letter of allotment and, therefore, viewed from any angle the Letter of Intent is a concluded contract. A bare reading of Clause 15 shows that possession of the said plot shall be handed over to the allottee after completion of developmental work at site within a period of 1.5 years from the date of issue of Letter of Intent. In case for any reason BDA is unable to deliver the possession within the stipulated period the purchaser has a right to withdraw from the scheme by moving an application to the purchaser and the amount shall be refunded with interest @ 10% p.a.
13. We find it a fit case to place reliance on the judgement of this Commission in Prem Chand Dhiman Vs. Haryana Urban Development Authority 2017 (1) CPJ 105 in which it has been clearly laid down that as HUDA committed an inordinate delay in the delivery of possession of the plot, the Complainants could not construct their house on time and during the relevant period the cost of construction escalated substantially for which the Complainant was entitled to reasonable compensation. In Punjaburban Planning & Development Authority Vs. Darshana Devi 2017 (3) CPJ 134 this Commission has laid down the ratio that when possession of plot was not given within reasonable time, concurrent finding of fact by the Fora below holding the Petitioner authority guilty of deficiency in service bordering unfair trade practice is to be upheld. In that case no allotment letter was issued. Though the offer of allotment was issued to the Complainants in 2014 in this case BDA was not adhering to the terms of the Letter of Intent as the developmental work was incomplete. Hence the ratio laid down by both the afore-noted judgements squarely applies to the facts in the instant case.
14. Admittedly, as per the Letter of Intent the possession was to be delivered within a period 18 months and BDA did not comply with the time period regarding the delivery of possession. The State Commission has rightly observed that Letter of Intent and the letter of allotment have to be seen in their entirety. Further, there are no substantive reasons given by BDA for the delay in offering the possession. Apart from relying on these Clauses there is absolutely no pleading regarding the reasons for the delay in the delivery of possession. Clause 11 of the allotment letter regarding presumption that possession is deemed to be taken within 30 days cannot be considered in isolation. According to Clause 15 the possession of the plot was to be handed over 'after completion of the developmental work at site'. Though, the Learned Counsel appearing for BDA vehemently contended that developmental work was complete at the subject site and has drawn our attention to the inter-se communication with respect to water and sewerage pipes, approach road, development of park etc., it can be seen from the record that there was no letter issued that development work was complete. In fact possession was said to be offered on 04.04.2014 but as can be seen from letter No. 1422 dated 15.05.2014 wherein it is stated that the work of 100 feet approach road is complete whereas developmental work of park is still in progress, itself shows that the developmental work was still not complete as on the date when the allotment letter was issued which was much earlier to this communication. There is absolutely no documentary evidence to substantiate the contention of the Learned Counsel of the Appellant that the developmental work was indeed complete as on the date of offer of possession and, therefore, offering possession without completion of developmental work at site itself is in violation of their own Clause 15. In the light of this finding that the possession offered cannot be considered to be a legal possession, we are of the considered view that the stand taken by BDA that the purchasers have not exercised their right to withdraw from the scheme and, therefore, are not entitled to interest, not only amounts to deficiency in service but also unfair trade practice.
15. As can be seen from the order of State Commission only a reasonable interest @ 12% has been awarded on the deposited amount together with a meagre compensation of ₹25,000/- which we do not find a fit case to interfere.
16. For all the afore-noted reasons we do not see any illegality or infirmity in the well-reasoned orders of the State Commission and resultantly the present Appeals bearing Nos. 510 to 513 of 2017 are dismissed accordingly with no order as to costs. The Statutory Deposit in each Appeal shall stand transferred to the respective Complainants.
......................J R.K. AGRAWAL PRESIDENT ...................... M. SHREESHA MEMBER