State Consumer Disputes Redressal Commission
Krishan Kumar Gupta vs M/S Nitishree Infrastructure Ltd. on 28 July, 2017
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.489 of 2015
Date of Institution : 07.05.2015
Order Reserved on: 24.07.2017
Date of Decision : 28.07.2017
Krishan Kumar Gupta son of Late Shri Vidya Parkash Gupta r/o 64,
New GTB Nagar, Jalandhar.
.....Appellant/complainant
Versus
1. M/s Nitishree Infrastructure Limited, B-111, Sector 5, Noida-
201301, Uttar Pradesh.
2. M/s Shourya Towers Pvt. Ltd. D-44, Sector-6, Noida-201301
(U.P.).
.....Respondents/opposite parties
First Appeal against order dated
16.03.2015 passed by the District
Consumer Disputes Redressal Forum,
Jalandhar.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Smt. Surinder Pal Kaur, Member Present:-
For the appellant : Sh. Ajay Singh Rawat, Advocate For the respondents : Sh. Ramnik Gupta, Advocate ............................................ J.S KLAR, PRESIDING JUDICIAL MEMBER :-
Challenge in this appeal by appellant is to order dated 16.03.2015 of District Consumer Disputes Redressal Forum Jalandhar (in short the 'District Forum), partly accepting the complaint of the complainants by directing OPs either to pay Rs.1,00,000/- to the complainant as damages or to adjust the same against the outstanding amount due from him. The District Forum First Appeal No.489 of 2015 2 further directed OPs to complete the development in the scheme area as early as possible. In case of undue delay in developing the scheme area, the complainant shall be at liberty to approach this Forum claiming damages from the OPs. The District Forum further held that OPs are entitled to external development charges from the complainant. The respondents of this appeal are opposite parties in the original complaint before the District Forum and appellant of this appeal is complainant therein and they be referred as such herein after for the sake of convenience.
2. The complainant instituted the complaint complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that he was allured by the various advertisements, which were got published by OPs for development of residential colony namely Shourya City, Jalandhar Punjab in the year 2005-2006. The complainant invested his lifetime earnings with OPs for purchase of the residential plots, as a senior citizen. It was further averred that on 29.03.2006, he paid an amount of Rs.1,00,000/-, vide receipt No.623. The total basic price was fixed as Rs.15,76,250/- of 250 square yard (Rs.6305/- per square yard) by OPs. It was further averred that on 04.01.2007, he paid an amount of Rs.3,95,000/- out of the total payment and an amount of Rs.11,81,250/- was due. Thereafter, the complainant paid other installments to OPs towards the total price. It was manifestly clear that the purchase of the plot by the complainant would be of any use only if the entire project is developed after taking all the requisite First Appeal No.489 of 2015 3 licence/permission/licences from the concerned departments. The OPs did not move an inch towards fulfilling the same. On 15.05.2007, the complainant paid an amount of Rs.7,95,000/- and only an amount of Rs.3,87,187/- remained balance thereafer, meaning thereby that the substantial amount had already been paid. Plot No.25 of a total area of 250 sq.yards was allotted to him by OPs and they received payment towards the purchase of the same. It was further averred that on 15.05.2007, the OPs maintained total silence with regard to the sale to be effected and also with regard to the development of the project in toto. Despite above said payments being made by the complainant, the OPs failed to make any development in the above project and no visible infrastructure was thereat. The development of project was never initiated and the site on which the project was to be developed remained idle, barren and unused. The opposite parties already received substantial amounts of money and the project had not moved an inch over the years inspite of the fact that such a huge amount has been received by OPs. In December 2007, OPs promised to pay the penal amount of Rs.5/- sq.ft. per month till the completion of construction of the project. The OPs are liable to pay the penal amount to the complainant. The money of the complainant was illegally retained by them. No development of project took place and ultimately on 16.01.2011, a demand letter was issued to the complainant, wherein the basic sale price of the plot was escalated upto Rs.16,25,220/- and against the agreed amount of Rs.15,76,250/-, as stated in the First Appeal No.489 of 2015 4 earlier letters. The said demand in itself was totally illegal. It was further averred that he received a letter from OPs, wherein they admitted their guilt and their failure to develop and kick-start the project. In the said letter, OPs demanded various documents from the complainant. Thereafter, OPs wrongly started the demand of extra development charges (EDC) which they were not liable to receive. However, another demand letter was received by the complainant, wherein some additional charges of Rs.3,12,500/- were imposed and the said demand/amount was never part of the purchase. The OPs illegally made the above demand with an intention to usurp the money invested by him. Again on 31.12.2011, he received letter, wherein it was threatened that allotted plot No.25 would be cancelled in case of non-payment of the amount. The complainant had already been ready and willing to pay the balance amount out of the basic price of Rs.15,76,250/-. However, there is no reason for the opposite party to make or seek any demand from him in excess of the basic price, especially when they have themselves admitted their negligence and delay in the development of the project. The complainant wrote a letter to OPs on 28.02.2012, objecting the raise of such demand, as the same was never a part of contract. The letter issued by the complainant was never replied to OPs. The money invested by the complainant has been blocked for no valid reason and OPs miserably failed to develop the project. It was further averred that high tension wires divided the colony into two parts and the said wires passed vertically above the colony and First Appeal No.489 of 2015 5 at present there are wires at the very entry of the main gate. No certificate has been issued by the Municipal Corporation, Jalandhar till date giving clearance and the individual site plans are not being sanctioned by the corporation for construction of the house. There is no provision for water supply in the area for human consumption in the above project. Similarly, the sewerage laid down by OPs has not been connected with the sewerage of Municipal Corporation. Even this little bit has been done after expiry of more than 6 years since the inception of the scheme. No electricity connection can be obtained in the area as PSPCL has till date not agreed to give electricity connection in the colony. Further in whole of the colony, there is no provisions of disposal of treated water. The park has not been developed at all and neither there is any community hall for the assembly of the residents. No parking facility for the residents is available thereat. The licence has been granted to the OPs by the Jalandhar Development Authority(JDA), bearing licence No.JDA- 2011/13 with 31 conditions to be complied with before any approval is given for the sale. The opposite parties failed to comply with above 31 conditions and no approval has been given till date for this project. The complainant prayed for setting aside demand of Rs.3,12,500/- raised by OPs and further prayed for that OPs be directed to deliver the possession of the plot No.25 to him and to get the sale deed executed after getting the completion certificate from the concerned authority; further to pay penalty amount of Rs.5 per sq.ft. per month from December 2007 or in the alternative interest @ First Appeal No.489 of 2015 6 12% p.a on the amount of Rs.7,95,000/-; to pay Rs.1,00,000/- as compensation, besides litigation expenses.
3. Upon notice, OPs appeared and filed written reply raising preliminary objections regarding maintainability, suppression of material facts, want of cause of action etc. It was further pleaded that the complainant approached them for getting the plot in the Shourya Greens, Near Kamal Vihar in the year 2006. Accordingly, a plot No.25 was allotted to him and he deposited the part payment thereafter. It was further averred that OPs applied for the licence with the Government Authority i.e. Jalandhar Development Authority (JDA). The said authority took too much time to grant the license to them and the licence was issued to them, vide license No.JDA- 2011/13 dated 23.12.2011 after completing all the legal formalities and they had to deposit other charges including external development charges i.e Rs.400/- per yard for saleable area, as per notification No.SO00/R.31/1995/2011 dated 15.04.2011, total amounting to Rs.75,90,756/- (Rs.53,47,946/-, vide DD No.125617 dated 09.12.2011 and Rs.22,42,810/- vide DD No.047720 dated 09.11.2009 and DD No.047796 dated 16.11.2009). The above said amount has been adjusted by the JDA in the shape of other charges. In the mean time, they have deposited the said amount with the JDA. It was further averred that they issued demand letter to the complainant, claiming the extra development charges from him, but till today, he paid part payment only of the basic sale price (BSP). When the complainant failed to discharge his liability, then they First Appeal No.489 of 2015 7 issued letter dated 09.04.2013 to him to make the payment of Rs.11,82,375/-. In the said letter, detail has been given regarding the payment to be made by the complainant to them. The complainant is liable to make the payment of Rs.3,12,500/- as external development charges including the other chargers, as he failed to make the payment of the said amount including total amount of Rs.11,82,375/- as on 09.04.2013. The complainant failed to make the payments, therefore, he is not entitled to any amount even @ Rs.5/- per sq.ft. per month. The OPs are only to make allotment of the vacant plot to him. The OPs controverted the other averments of the complainant and prayed for dismissal of the complaint.
4. The complainant tendered in evidence affidavits Ex.CW1/A and Ex.CW2/A along with copies of documents Ex. C-1 to Ex.C-12 and closed evidence. To rebut the evidence of complainant, OPs tendered in evidence affidavit Ex.OP-A alongwith copies of document Ex.OP-1 and closed evidence. On conclusion of evidence and arguments, the District Forum partly accepted the complaint of the complainant. Aggrieved by above order, the complainant now appellant has directed this appeal against the same.
5. We have heard the learned counsel for the parties at considerable length and have also examined the record of the case. The paramount submission raised by counsel for the appellant/complainant is that the total basic price of residential plot was Rs.15,76,250/-. Out of this amount, he paid Rs.1,00,000/- on 29.03.2006, vide receipt no.623. On 04.01.2007, he paid First Appeal No.489 of 2015 8 Rs.3,95,000/- and only an amount of Rs.11,81,250/- was due against him. The submission of counsel for appellant/complainant is that OPs have not completed the project despite receipt of amount of Rs.7,95,000/- from complainant. Only the balance amount of Rs.3,87,187/- remained due from him to OPs. The OPs kept silence regarding development of the project. The submission of the complainant/appellant is that the basic price of the plot was enhanced to Rs.16,25,220/-, vide demand letter dated 16.01.2011 against the agreed amount of Rs.15,76,250/-. The OPs demanded additional charges of Rs.3,12,500/- from complainant in subsequent demand letter. The demand raised by OPs is alleged to be illegal. On the other hand, the submission of counsel for respondents/OPs in this appeal before us is that the demand of Rs.3,52,500/- was raised on account external development charges, imposed upon them by Jalandhar Development Authority. The controversy is restricted to this point, whether OPs are entitled to external development charges levied upon them by the Statutory Authority from the complainant. The submission of the counsel for the appellant is that there was stipulation regarding the payment of external development charges at the time of allotment and hence he is not liable therefor. Plot was allotted to him in the year 2006. The external development charges have been demanded by Jalandhar Development Authority from OPs, vide letter dated 28.07.2008, vide Ex.C-3 @26.78 lacs per acre. Jalandhar Development Authority demanded the EDC subsequent to allotment of the plot to the First Appeal No.489 of 2015 9 complainant. We agree with the reasoning of the District Forum that matter would have stood on different footing, had the Jalandhar Development Authority demanded the external development charges before the allotment letter to complainant. EDC was levied by the Jalandhar Development Authority later on after allotment of the plot to complainant. They are statutory levying charges by competent authority. No specific agreement has been brought to our notice by counsel for complainant that it was the obligation of OPs to pay the external development charges for the flat. The allottees are bound to pay the same on pro rata basis, as demanded by OPs on account of their imposition by the statutory authority. We endorse the findings of the District Forum on this point that the amount of Rs.3,12,500/- has been correctly raised by OPs from the complainant on account of external development charges.
6. The next point is that OPs carved out the colony without any approval. Licence was issued by the State Government to OPs on 23.12.2011 after more than five years from the date of allotment letter to complainant. Even no completion certificate has been obtained so far by the OPs nor produced on the record to establish it. The OPs have not developed the project within reasonable time from the date of allotment. The finding of the District Forum is flawless on this point that OPs allotted the plot to complainant without license to develop the project ad it is certainly deficiency in service, besides unfair trade practice. Provisional allotment letter Ex.C-6 dated 22.01.2007, recorded the basic sale price of the plot as First Appeal No.489 of 2015 10 Rs.15,76,250/- and alongwith preferential location charges/other charges, the total price of the plot is recorded as Rs.16,55,062/- in it. The OPs received amount of Rs.7,95,000/- from complainant, vide Ex.C-8. The OPs have to enhance the amount on account of external development charges levied by Jalandhar Development Authority on pro rata basis subsequent to issuance of allotment letter. The allotment letter without any license of Government is unfair trade practice and deficiency in service. The complainant prayed for compensation of Rs.1,00,000/- on this point in the complaint and District Forum rightly awarded the compensation of Rs.1,00,000/-, which is quite reasonable. We find no reason to disagree with the same.
7. The next bone of contention raised before us is whether the complainants are entitled to receive the compensation in the shape of penalty @Rs.5/- per square feet from December 2007 or in the alternative interest @12% per annum on the amount of Rs.7,95,000/-. The plea of complainant contained in complaint is that OPs promised to pay the penalty of Rs.5/- per square feet till the completion of the project. There is no cogent evidence on the record to substantiate it. No such buyers agreement executed between the parties recording this clause has been placed on record. In the absence of any such agreement by OP, complainant cannot claim compensation @ Rs.5/- per square feet per month from OPs. The District Forum rightly awarded the compensation of Rs.1,00,000/- to First Appeal No.489 of 2015 11 complainant as damages. This compensation is quite reasonable to compensate the complainant in our view.
8. The next point for adjudication is whether complainant is entitled to any direction to OPs to complete the project and to deliver the possession with completion certificate/occupancy certificate to complainant. The District Forum has given the direction to complete the development in the scheme as early as possible, but in case of undue delay in developing the scheme, the District Forum gave the opportunity to complainant to approach the Forum again. We cannot keep the matter in the toss, consequently, a direction is issued to OPs to develop the colony and to issue the completion certificate to the complainant within a period of six months from the date of receipt of certified copy of the order and in case of unforeseeable circumstances, District Forum concerned shall decide the point as to whether extend this time only once or not.
9. As a corollary of our above discussion, except the modification for a direction to OPs to develop the project and to deliver the possession to complainant with completion certificate within a period of six months from the date of receipt of certified copy of the order, there is no other merit in the appeal and the same is hereby dismissed.
10. Arguments in this appeal were heard on 24.07.2017 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.
First Appeal No.489 of 2015 12
11. The appeal 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 28, 2017 MM