State Consumer Disputes Redressal Commission
Rajesh Handa vs M/S Nature Heights Infra Ltd. on 12 January, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
Consumer Complaint No.175 of 2016
Date of institution : 09.06.2016
Date of decision : 13.01.2017
Rajesh Handa son of Sh. Hira Lal Handa, resident of H.No.4968,
Chatti Gali, near Mahavir Mandir, Jagraon, District Ludhiana.
....Complainant
Versus
M/s Nature Heights Infra Ltd., Regd. Office: 9, Sunder Nagri,
Hanumangarh Road, Abohar, District Fazilka, through its Managing
Director, Mr. Neeraj Arora, resident of House No.9, Sunder Nagri,
Hanumangarh Road, Abohar, District Fazilka.
....Opposite Party
Consumer Complaint under Section
17(1)(a)(i) of the Consumer Protection Act,
1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Vinod Kumar Gupta, Member
Present:-
For the complainant : Shri Harsh Goyal, Advocate For the opposite party : Ex parte.
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT :
The complainant consumer dreamed to have a roof over his head. The home is the starting place of hopes and dreams. It is the foundation for life of a family and their children. Many a time, life takes a person to unexpected places and love of shelter brings him home, perhaps for this reason human beings hope and dream to make a home, may be it a flat or a house.Consumer Complaint No.175 of 2016 2
2. The complainant was allured by the tempting advertisements in newspapers, print media, gleaming hoardings offering homes and brochures. We all are living in the age of advertisements. The advertisements spread before us a perfect life picture, which many times, results in disillusion and changes and withers in no time. The glittering and shiny advertisement leaves us with a feeling of resentfulness after spending a fortune for the dream house/flat. This appears to have happened with the present complainant, who ended up losing a lofty amount of her savings and experiencing harassment at the hands of opposite party. So, this complaint against the opposite party under Section 17 of the Consumer Protection Act, 1986.
3. The brief facts, as averred in the complaint, are to the effect that the opposite party through advertisement launched its project, known as "Nature Heights Western Homz", Sector 125, Mohali and Brochure Ex.C-1 was issued. The complainant made inquiries and visited the site at Mohali and also met the officers of the opposite party, who assured that the project would be completed in three years and the flat would be delivered to the complainant. Believing the representations made by the officials of the opposite party, the complainant applied for booking of 3 BHK flat measuring 1530 sq.ft. on 09.05.2011. The price of the flat was Rs.45,00,000/-,but the complainant was given a discount of 5% and the net payable amount was Rs.42,50,000/-, as per schedule of payment Ex.C-2.
4. In pursuance of above said assurance, Agreement to Sell Ex.C-3 was executed between the complainant and the opposite party Consumer Complaint No.175 of 2016 3 on 23.10.2011 at Abohar, in which it was mentioned that the total price of the intended property to be purchased by the complainant has been fixed at Rs.42,75,000/-. It was further mentioned therein that the total area of the flat would be 1530 sq.ft. and the same will be allotted in Tower No.72, bearing Flat No.285 at Ground Floor. On completion of sale price, the vendor would execute the Sale Deed in favour of the purchaser only after passing of three months and the actual and physical possession would be delivered at the spot only after the registration of the Sale Deed. The complainant paid the total amount of Rs.42,75,000/- to the opposite party on different dates, vide receipts Ex.C-4 (colly.).
5. After making the said payment, the complainant came to know that the construction at the site had not started and on inquiries, it was told by the opposite party that the construction is going to start soon. Originally, Flat No.285, Ground Floor, in Tower No.72 was allotted, but the complainant was shocked and surprised, when he visited the office of the opposite party in July, 2015 and he was handed over a letter confirming the receipt of Rs.42,75,000/- and his flat was changed to Flat No.A-1, Ground Floor, Block D, in Tower No.18. The change in the allotment was neither intimated to the complainant nor any consent was taken from him.
6. The complainant again visited the site and was shocked to find that even the construction of Tower No.18 was not started and on inquiries, the opposite party gave same reply that the construction is going to start soon. Thus, the opposite party with dishonest intention induced the complainant to pay the total price of the flat, without raising Consumer Complaint No.175 of 2016 4 any kind of construction at the site. At the site, only a structure of 2-3 floors is standing and there is no construction activity, as shown in photographs Ex.C-6(colly.). Some of the allottees have already lodged the FIRs against the opposite party in this matter, which are pending for adjudication.
7. As per the information obtained by some of the allottees from GMADA dated 06.06.2014 Ex.C-7, the opposite party was not issued any kind of licence for raising the colony. The aforesaid acts and conducts of the opposite party amount to deficiency in service and unfair trade practice. On the basis of aforesaid averments, the complainant has prayed that the opposite party be directed to refund the amount of Rs.42,75,000/-, along with interest at the rate of 18% per annum, and to pay Rs.10,00,000/-, as compensation on account loss, mental agony and harassment suffered by the complainant, besides Rs.55,000/- as litigation expenses.
8. Upon notice, opposite party appeared and filed written reply, taking preliminary objections that the allegations made in the complaint are false. The complainant has signed the "Independent Floors Buyer's Agreement" and is bound by the terms and conditions thereof. This Commission has no jurisdiction and the matter is required to be referred to the arbitrator, to be appointed as per provisions of Arbitration and Conciliation Act, 1996. The present dispute relates to specific performance of contract and is triable by the Civil Court. In cases of sale of immovable property, time is never regarded as essence of contract. The complaint is barred by time, as the booking was made on 14.09.2011 and last payment was made on 22.04.2014 Consumer Complaint No.175 of 2016 5 and more than two years have passed. Moreover, the agreement was executed on 23.10.2011 between the party and the present complaint has been filed on 02.06.2016. The complainant does not falls within the ambit of consumer as per Section 2 (d) of the Act. The complainant has purchased the unit in question for commercial purpose. The opposite party is committed to deliver possession to the complainant subject to payment of all dues by him. Complicated questions of law are involved and the remedy lies under Contract Act or Specific Relief Act and the complainant is not entitled to any relief from this Commission. On merits, it was pleaded that the opposite party is ready and willing to perform its part of the contract and there is no deficiency in service on its part. It was admitted that the opposite party launched the project and agreement was entered with the complainant on 23.10.2011. It was also admitted that the complainant booked one flat for a price of Rs.42,50,000/- and he deposited Rs.42,75,000/-. The complainant with malafide intention never came forward for getting the Sale Deed executed, nor he has produced any communication/letter to show that he approached the opposite party in this regard. The complainant received letter dated 09.07.2015 to the effect that the opposite party is ready and willing to get the sale deed executed and on request of the complainant, the flat mentioned in the letter was offered to him. A number of sales deeds have been executed in favour of customers, who have paid the total amount. The opposite party has requisite permission from GMADA. Annexure C-7 relied upon by the complainant is forged document and no reliance can be placed on it. The opposite party is ready and willing to deliver the possession of the Consumer Complaint No.175 of 2016 6 flat to the complainant, but he is unduly trying to take benefit of decrease in the price in the overall market. All other allegations made in the complaint were denied and dismissal of the complaint with costs. was prayed.
9. To substantiate his claim, the complainant has produced on record his own affidavit, Ex.C-A, along with various documents Ex.C-1 to Ex.C-7. The opposite party did not produce any evidence and rather absented thereafter and was proceeded against ex parte, vide order dated 15.11.2016.
10. We have heard learned counsel for the complainant and have perused the record.
11 The Ld. Counsel for the complainant vehemently contended that innocent complainant was misled by the advertisement and the brochure issued by the opposite party. In pursuant to the advertisement complainant had booked the flat with the opposite party and has paid the total price of the flat to it. The enquiry made by the complainant at the site, where alleged flats would be constructed, was having only pillars and semi constructed structures. The Ld. Counsel for the complainant further contended that there is no likelihood of completion of construction even in near future. To the knowledge of the complainant, even no sanction has been taken from the PUDA and Town and Country Planning Department, Punjab. The project has been advertised without following the procedure as mentioned in the Punjab Apartment and Property Regulation Act, 1995 (hereinafter to be referred as the "PAPRA") .
Consumer Complaint No.175 of 2016 712 Learned counsel for the complainant further contended that since the opposite party failed to provide any document of title with regard to the property in question, where the alleged project was to be set up, and also failed to provide any permission from the competent authority and the CLU. For these reasons, the complainant became apprehensive. In the circumstances, there was no option with the complainant, but to stop the further payments. The complainant was always ready and willing to pay the entire amount as demanded, provided there was any hope or the possibility of the completion of alleged upcoming project in which she has been allotted flat. Even no Tower No. 35 was identifiable at the site.
13 We have given a thoughtful consideration to the contentions raised by the learned counsel for the complainant. 14 The averment in the complaint as well as the evidence led by the complainant by way of affidavit along with exhibited documents remains unrebutted. It is crystal clear from the evidence on record that the complainant applied for allotment of flat and deposited the initial booking amount of ₹ 20,000/- on 09.05.2011 and thereafter had paid the substantial amount vide various receipts Ex.C-4(Colly.). The said amount has been received by the opposite party-Nature Heights Infra Limited with respect to flat No.285, Ground Floor, in Tower No.72 at a discounted price of 5%. The possession of the flat was to be handed over only after the registration of Sale Deed.
15 It would be apposite to refer to the relevant provisions of PAPRA, which are as follows:
Consumer Complaint No.175 of 2016 8
3. General Liabilities of Promoter:-
(1) Notwithstanding anything in any other law for the time being in the force, a promoter, who develops a colony or who constructs or intends to construct a building of apartments, shall, in all transactions with persons taking or intending to take a plot or an apartment on ownership basis, be liable to give or produce, or cause to be given or produced, the information and the documents mentioned hereinafter in this section. (2) A promoter who develops a colony or who constructs or intends to construct such building of apartments shall,-
(a) make full and true disclosure of the nature of his title to the land on which such colony is developed or such building is constructed or is to be constructed, such title to the land having been duly certified by an attorney-at-law or an advocate of not less than seven years standing, after he has examined the transactions concerning it in the previous thirty years ; and if the land is owned by another person, the consent of the owner of such land to the development of the colony or construction of the building has been obtained;
(b) make full and true disclosure of all encumbrances on such land, including any right, title, interest or claim of any party in or over such land;
(c) give inspection on seven days, notice or demand,-
(i) of the layout of the colony and plan of development works to be executed in a colony as approved by the prescribed authority in the case of a colony; and
(ii) of the plan and specifications of the building built or to be built on the land as well as of the common areas and facilities and common services provided (including supply of electricity and water, sewerage and drainage systems, lifts, fire-
fighting equipment), such plans and specifications being in accordance with the provisions of the building regulations, and approved by the authority which is required so to do under any law for the time being in force, indicating thereon what parts of the building and the appurtenant areas are intended to be kept as common areas and facilities in the case of apartments :
Provided that the number and sizes of the apartments shall conform to such building regulations, and the area of an apartment shall not exceed such limit as may be fixed by the competent authority;
(d) display or keep all the documents, plans and specifications or copies thereof referred to in clauses (a), (b) and (c) of this sub-section at the site and in his office and make them available for inspection to persons taking or intending to take a plot or an apartment and after the association is formed, he shall furnish the association a copy of these documents and of the sanctioned plan of the building;
(e) disclose the nature of fixtures, fittings and amenities, including the provision for one or more lifts, provided or to be provided;Consumer Complaint No.175 of 2016 9
(f)disclose on reasonable notice or demand, if the promoter is himself the builder, the prescribed particulars as respects the designs and the materials to be used in construction, and, if the promoter is not himself the builder, disclose all agreements entered into by him with the architects and contractors regarding the design, materials and construction of the building;
(g) specify, in writing, the date by which possession of the plot or apartment is to be handed over and he shall hand over such possession accordingly;
(h) except where there are no agreements about specific plots or apartments and allotment is made by draw of lots, prepare and maintain a list of plots or apartments with their numbers, the names and addresses of the parties who have taken or agreed to take plots or apartments, the price charged or agreed to be charged therefor, and the terms and conditions, if any, on which the plots or apartments are taken or agreed to be taken;
Provided that the competent authority may direct that,-
(i) in the case of residential apartments, if the total number of apartments is one hundred or more, ten percent of the apartments; and
(ii) in the case of colony, if the total area of the colony is forty hectares or more, ten per cent of the area under residential plots and houses, be reserved for being sold or leased to such person belonging to such economically weaker section of society, in such manner and on such terms and conditions as may be prescribed;
(i) state in writing, the precise nature of and the terms and conditions governing the association to be constituted of persons who have taken or are to take the apartments;
(j) not allow person to enter into possession until an occupation certificate required under any law is duly given by the appropriate authority under that law and no person shall take possession of an apartment until such occupation certificate is obtained;
(k) make a full and true disclosure of all outgoings, including ground rent, if any, municipal or other taxes, charges for water and electricity, revenue assessment, interest on mortgages or other encumbrances, if any;
(l) give the estimated cost of the building and the apartments proposed to be constructed, or colony to be developed, and the manner in which escalation in such cost for valid reasons may be approved by mutual agreement ;
(m) make a full and true disclosure of such other information and documents in such manner as may be prescribed; and
(n) give on demand and on payment of reasonable charges true copies of such of the documents referred to in any of the clauses of this sub-section as may be prescribed.
4. Issuing of Advertisement or Prospectus:-
Consumer Complaint No.175 of 2016 10
(1) No promoter shall issue an advertisement or prospectus, offering for sale any apartment or plot, or inviting persons who intend to take such apartments or plots to make advances or deposits, unless,-
(a) the promoter holds a certificate of registration under sub-section (2) of section 21 and it is in force and has not been suspended or revoked, and its number is mentioned in the advertisement or prospectus; and
(b) a copy of the advertisement or prospectus is filed in the office of the competent authority before its issue or publication. (2) The advertisement or prospectus issued under sub-
section (1) shall disclose the area of the apartments or plots offered for sale, title to the land, extent and situation of land, the price payable and in the case of colonies, also layout of the colony, the plan regarding the development works to be executed in a colony and the number and the validity of the licence issued by the competent authority under sub-section (3) of section 5, and such other matters as may be prescribed. (3) The advertisement or prospectus shall be available for inspection at the office of the promoter and at the site where the building is being constructed or on the land being developed into a colony, alongwith the documents specified in this section and in section 3.
(4) When any person makes an advance or deposits on the faith of the advertisement or prospectus, and sustains any loss or damage by reason of any untrue statement included therein, he shall be compensated by,-
(a) the promoter, if an individual; (b) every partner of the firm, if the promoter is a firm; (c) every person who is a director at the time of issue of the
advertisement or prospectus, if the promoter is a company :
Provided, however, that such person shall not be liable if he proves that,-
(a) he withdrew his consent to become a director before the issue of the advertisement or prospectus; or
(b) the advertisement or prospectus was issued without his knowledge or consent, and on becoming aware of its issue, he forthwith gave reasonable public notice that it was issued without his knowledge or consent; or
(c) after the issue of the advertisement or prospectus and before any agreement was entered into with buyers of plots or apartments, he, on becoming aware of any untrue statement therein, withdrew his consent and gave reasonable public notice of the withdrawal and of the reasons therefor. (5) When any advertisement or prospectus includes any untrue statement, every person who authorised its issue, shall be punished with imprisonment for a term which may extend upto one year or with fine which may extend upto five thousand rupees, or, with both, unless he proves that the statement was immaterial or that he had reason to believe and did upto the Consumer Complaint No.175 of 2016 11 time of issue of the advertisement or prospectus believe that the statement was true.
5. Development of Land into Colony:
(1) Any promoter, who desires to develop a land into a colony, shall make an application in the prescribed form alongwith the prescribed information and with the prescribed fee to the competent authority for grant of permission for the same and separate permission will be necessary for each colony. (2) On receipt of the application under sub-section (1), the competent authority, after making enquiry into the title to the land, extent and situation of the land, capacity of the promoter to develop the colony, layout of the colony, conformity of the development of the colony with the neighbouring areas, plan of development works to be executed in the colony and such other matters as it may deem fit, and after affording the applicant an opportunity of being heard and also taking into consideration the opinion of the prescribed authority, shall pass an order, in writing, recording reasons either granting or refusing to grant such permission.
(3) Where an orders is passed granting permission under sub-section (2), the competent authority shall grant a licence in the prescribed form, after the promoter has furnished a bank guarantee equal to twenty five percent of the estimated cost of the development works certified by the competent authority and the promoter has undertaken to enter into an agreement in the prescribed form for carrying out completion of development works in accordance with the conditions of the licence so granted.
(4) The licence granted under sub-section (3) shall be valid for a period of three years and will be renewable from year to year on payment of prescribed fee.
(5) The promoter shall enter into agreement undertaking to pay proportionate development charges for external development works to be carried out by the Government or a local authority.
(6) The competent authority shall determine the proportion in which, and the time within which, the estimated development charges referred to in sub-section (5) shall be paid to the State Government, or the local authority, as the case may be.
(7) The promoter shall carry out and complete the development of the land in accordance with the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (Central Act 33 of 1976) and other laws for the time being in force.
(8) The promote shall construct or get constructed at his own cost schools, hospitals, community centres and other community buildings, on the land set apart for this purpose or transfer such land to the State Government either free of cost or Consumer Complaint No.175 of 2016 12 upon payment of actual cost of developed land, as decided by the State Government, which shall be at liberty to transfer such land to any local authority or any person or institution on such terms and conditions as it may deem fit:
Provided that if, having regard to the amenities which exist or are proposed to be provided in the locality, the competent authority is of the opinion that it is not necessary to provide one or more of such amenities, it may exempt the promoter from providing such amenities, either wholly or in part, on such terms and conditions as it may deem fit.
(9) The promote shall, where the total area of the colony is forty hectares or more, reserve upto ten per cent of the area under residential plots and apartments as the competent authority may direct, for being sold or leased to such persons belonging to such economically weaker sections of society, in such manner and on such terms and conditions, as may be prescribed.
(10) The promoter shall carry out all directions issued by the competent authority for ensuring due compliance of the execution of the layout and the development works therein and to permit the competent authority or any officer authorised by it to inspect such execution.
(11) The promoter shall be responsible for the maintenance and up keep of all roads, open spaces, public parks and public health services until the date of transfer thereof, free of cost to the State Government or the local authority. (12) In the event of the promoter contravening any provisions of this Act, or rules made thereunder or any conditions of the licence granted under sub-section (3) the competent authority may, after giving an opportunity of being heard, cancel the licence and enforce the bank guarantee furnished by the promoter under the said sub-section(3). (13) When a licence is cancelled under sub-section (12), the competent authority may itself carry out or cause to be carried out the development works, and after adjusting the amount received as a result of enforcement of bank guarantee, recover such charges as the competent authority may have to incur on the said development works from the promoter and the allottees in the manner prescribed as arrears of land revenue. (14) The liability of the promoter for payment of development charges referred to in-sub section (13) shall not exceed the amount the prompter has actually recovered from the allottees less the amount actually spent on such development works, and that of the allottees shall not exceed the amount which they would have to pay to the promoter towards the expenses of the said development works under the terms of the agreement of sale or transfer entered into between them:
Provided that the competent authority may, recover from the allottees with their consent, an amount in excess or what may be admissible under the aforesaid terms of agreement of sale or transfer.Consumer Complaint No.175 of 2016 13
(15) Notwithstanding anything contained in this Act, after development works have been carried out under sub-section (13), the competent authority may, with a view to enabling the promoter, to transfer the possession of, and the title to, the land to the allottees within a specified time, authorise the promoter by an order to receive the balance amount, if any, due from the allottees after adjustment of the amount which may have been recovered by the competent authority towards the cost of the development works and also transfer the possession of, and the title to, the land to the allottees within aforesaid time and if the promoter fails to do so, the competent authority shall on behalf of the promoter transfer the possession of, and the title to, the land to the allottees on receipt of the amount which was due from them.
(16) After meeting the expenses on development works under sub-section (13), the balance amount shall be payable to the promoter.
6. Contents of Agreement of Sale:-
(1) Notwithstanding anything contained in any other law for the time being in force, a promoter who intends to construct or constructs a building of apartments, all or some of which are to be taken or are taken on ownership basis, or who intends to offer for sale plots in a colony, shall, before he accepts any sum of money as advance payment or deposit, which shall not be more than twenty five per cent of the sale price, enter into a written agreement for sale with each of such persons who are to take or have taken such apartments, or plots, as the case may be, and the agreement shall be in the prescribed form together with prescribed documents and shall be registered under the Registration Act, 1908 (Central Act no. 16 of 1908) ;
Provided that, if only a refundable application fee is collected from the applicant before draw of lots for allotment, such agreement will be required only after such draw of lots. (2) The promoter shall not cancel unilaterally the agreement of sale entered into under sub-section (1) and if he has sufficient cause to cancel it, he shall give due notice to the other parties to the agreement and tender a refund of the full amount collected togetherwith interest at the rate as may be prescribed.
(3) The agreement to be prescribed under sub-section (1) shall contain inter alia the particulars as hereunder specified in clause (a) in respect of apartments and as specified in clause
(b) in respect of plots in a colony and to such agreement shall be attached the copies of the documents specified in clause
(c),-
(a) the particulars in the case of apartment,-
(i) if the building is to be constructed, the liability of the promoter to construct the building according to the plans and specifications approved by the authority which is required so to Consumer Complaint No.175 of 2016 14 do under any law for the time being in force;
(ii) the date by which the possession of the apartment is to be handed over to the allottee;
(iii) the area of the apartment including the area of the balconies which should be shown separately:
(iv) the price of the apartment including the proportionate price of the common areas and facilities which should be shown separately, to be paid by the allottee of the apartment and the intervals at which the instalments thereof may be paid;
(v) the precise nature of the association to be constituted of the persons who have taken or are to take the apartments;
(vi) the nature, extent and description of the common areas and facilities and the limited common areas and facilities, if any;
(vii) the percentage of undivided interest in the common areas and facilities and in the limited common areas and facilities, if any, appertaining to the apartment agreed to be sold, such percentage shall be the ratio of the built-up area of the apartment to the total built-up area of all the apartments;
(viii) the statement of the use for which the apartment is
intended and restrictions on its use, if any;
(b) particulars in the case of plots in a colony,-
(i) the date by which the possession of the plot is to be
handed over to allottee;
(ii) the area and price of the plot; and
(iii) the statement of the use for which the plot is intended
and restriction on its use, if any;
(c) the copies of documents to be attached with the
agreement,-
(i) the certificate by an attorney-at-law or advocate referred to in clause (a) of sub-section(2) of section 3;
(ii) certified copy from any relevant revenue record showing the nature of the title of the promoter to the plot or the land on which the building of apartments is constructed or is to be constructed ; and
(iii) the plans and specifications of the apartment as approved by the authority which is required so to do under any law for the time being in force.
9. Accounts of sums taken by promoter:- The promoter shall maintain a separate account in any scheduled bank of sums taken by him from persons intending to take or who have taken apartments or plots, as advance, towards sale price or for any other purpose, or, deposit, including any sum so taken towards the share capital for the formation of a co-operative society or a company, or towards the outgoings(including ground rent, if any, municipal or other local taxes. charges for water or electricity, revenue assessment, interest on mortgages or other encumbrances, if any, stamp duty and registration fee for the agreement of sale and the conveyance); and the Consumer Complaint No.175 of 2016 15 promoter shall hold the said moneys for the purposes for which they were given and shall disburse the moneys for those purposes including for the construction of apartments and, in the case of colonies, for meeting the cost of development works, and shall on demand, in writing, by the competent authority make full and true disclosure of all transactions in respect of that account and shall not utilize for any other purpose the amounts so collected for a particular purpose.
12. Refund of Amount:-If the promoter,-
(a) fails to give possession, in accordance with the terms of his agreement, of a plot or an apartment duly completed by the date specified, or any further date agreed to by the parties; or
(b) for reasons beyond his control and of his agents, is unable to give possession of the plot or the apartment by the date specified, or the further agreed date; the promoter shall be liable on demand, but without prejudice to any other remedies to which he may be liable, to refund the amounts already received by him in respect of that plot or apartments with simple interest at the rate as may be determined by the competent authority from the date the promoter received the sums till the date the amounts and interest thereon is refunded, and the amounts and the interest shall be a charge on the land on which a plot is to developed, or a building is or was to be constructed and the construction, if any, thereon shall be subject to any prior encumbrances.
16 Then "Punjab Apartment and Property Regulation Rules, 1995 were framed under Section 45 of the PAPRA and according to Rules 7, 8 & 17 , it has been provided as under:-
"7. Disclosure regarding registration and licence - The promoter shall disclose the number of his certificate of registration granted under sub-section (2) of section 21 and, in the case of a colony, also the validity of licence issued under sub-section (3) of section 5 and display the certificate of registration and the licence so granted at a conspicuous place in his office and make it available for inspection to the persons taking or intending to take an apartment or a plot in the colony and to a person authorized by the competent authority.
8. Supply of copies of documents. - The promoter on demand shall supply true copies, on payment of reasonable charges, of the following documents, namely :-
(a) Title deed of land, certificate of the attorney at-law or an advocate of not less than seven years standing, referred to in clause (a) of sub-section (2) of section 3 and copies of the advertisement issued under section 4;Consumer Complaint No.175 of 2016 16
(b) Copy of the consent of the land owner, if the land does not belong to the promoter as referred to in clause (a) of sub-section (2) of section 3;
(c) Design of apartment, agreement with an architect and a contractor, referred to in clause (f) of sub-section (2) of section 3;
(d) Copy of occupation certificate referred to in section 14; and
(e) Certificate of registration granted under sub-section (2) of section 21 and in case of colony, the permission granted under sub-section (2) of section 5.
17. Rate of interest on refund of advance money upon cancellation of agreement.- The promoter shall refund full amount collected from the prospective buyers under sub-section (1) of section 6 together with interest thereon at the rate of twelve per cent per annum payable from the date of receipt of amount so collected till the date of re-payment."
17 The perusal of above referred provisions clearly makes out that a builder or a promoter or a developer cannot proceed with the construction without prior permission of the competent authority. They are required to fulfil the conditions mentioned in the PAPRA. Section 9 of the said Act clearly specifies that a separate account is required to be maintained of the amount received from the allottee of a flat and the amount paid by the complainant/allottee would be considered to be a deposit held by the opposite party in trust for complainant and to be spent only for the purpose it has been received that is in construction of flat.
18 Since the opposite party failed to supply the documents and also failed to put any document before this Commission, an adverse inference has to be drawn against the opposite party that they are not having any sanction from the Government, other concerned departments . They have not obtained any permission of "Change of Land Use" (CLU), nor the title over the khasra numbers, which are mentioned in a unilateral agreement, Ex.C-3.
Consumer Complaint No.175 of 2016 1719 The complainant has been misled by the advertisement made by way of pamphlets and other means as well as Brochure issued by the opposite party. It relevant to notice here that a unilateral agreement dated 23.10.2011 has been executed by the opposite party, wherein the Khasra numbers are mentioned, where flats were to be constructed. Admittedly, the opposite party had made advertisement by way of pamphlets and other means and Brochure, Ex.C-1 wherein the prices of 3 BHK and 2 BHK flats have been mentioned. Admittedly, the complainant applied for allotment of flat and deposited the initial booking amount of ₹ 20,000/- on 05.09.2011. Subsequently, various amounts have been paid, vide different receipts Exhibits C-4 (Colly.) to the opposite party. The amount of ₹ 42,75,000/- has been paid by the complainant. At the site, there is no progress in construction. The averments made in the complaint and evidence led by the complainant remains unrebutted. In-spite of issuance of legal notice and other communication, the opposite party has not given any reply to the complainant, to explain the reasons for the delay. In view of the above we hold that opposite party has failed to perform their obligation of constructing the flats for which it has received substantial amount of Rs.42,75,000/- from the complainant. It is a clear case of deficiency in service on the part of the opposite party having failed to deliver possession of the allotted flat to the complainant within the stipulated period. The builders are under obligation to deliver possession of the flat within a reasonable time. The complainant cannot be made to wait indefinitely to get possession of the flat booked by him. The evidence Consumer Complaint No.175 of 2016 18 brought on record clearly establish unfair trade practice carried out by the opposite party.
20 The Consumer Protection Act came into existence in the year 1986 and it is one of the benevolent piece of legislation in India to protect the consumers from exploitation. The spirit of the benevolent legislation cannot be overlooked and its object is not to be frustrated. There is not even an iota of evidence led by the opposite party to rebut the averments made in the complaint, in-spite of the fact that initially the opposite party had been represented by a counsel, who afterwards stopped appearing and ultimately, the opposite party was proceeded ex parte. In these circumstances, an adverse inference has been to be drawn against the opposite party. The evidence on the record clearly shows deficiency in service on the part of the opposite party, as it went on accepting the instalments, without bothering to complete the project as agreed upon between the parties. Ultimately, when the site was visited, there were only pillars and semi-constructed structures, but the complainant failed to find that the said property even belongs to the opposite party. Even in the Brochure placed on the record by the complainant as Ex.C-1, it is not mentioned that the opposite party has received any sanction from the competent authority or has already obtained the CLU for the land, in question. No reference of the concerned letters from the competent authority/Government has been made in the Brochure or the advertisement, but in the brochure it has been written in bold letters "Approved by PUDA". It appears that just to fleece the innocent consumers, they had made misleading advertisement in the newspaper in violation of the provisions of Consumer Complaint No.175 of 2016 19 Sections 3, 4 and 5 of the PAPRA. The Government is not even taking any action against the private builders, although there are provisions of registration of FIR and cancellation of their licenses under section 25 of the PAPRA. The act and conduct of the opposite party amount to deficiency in service and unfair trade practice. 21 In the present case opposite party-builder knew from the very beginning that it had not complied with the provisions of PAPRA and would not be able to deliver possession within stipulated period and by misrepresenting induced the complainant to book the flat due to which the complainant suffered mental agony and harassment. The opposite party made false statement of facts about the goods and services i.e. allotment of flat and its construction in stipulated period. This act and conduct of the opposite party is clear case of misrepresentation and deception which resulted into injury and loss of opportunities to the complainant. Had complainant would not have invested with the opposite party he would have invested his money elsewhere. There is escalation in the price of construction also. The builders in India have similar strategies to sell houses .The complainant has suffered loss as discussed above, so the complainant deserves suitable compensation, which we quantify in a lump sum as ₹4,00,000/.
22 In view of our above discussion, the complaint is allowed and the following reliefs are granted in favour of the complainant:-
i) The opposite party is directed to refund an amount of ₹42,75,000/- to the complainant along with interest at the rate of Consumer Complaint No.175 of 2016 20 12% per annum from the various dates of payment of amounts till realization of the amount;
ii) to pay ₹4,00,000/-, on account of unfair trade practice and deficiency in service by receiving the amount and launching the project without obtaining proper approvals from the competent authority i.e. CLU from PUDA and Town and Gram Planning Department, Punjab or licence from GMADA, layout plans or other licenses as provided under PAPRA; and
iii) to pay ₹20,000/-, as litigation costs.
23 The opposite party is directed to comply with this order within 30 days of the receipt of certified copy of the order. If the order is not complied with within above period, then Rs.4,00,000/- awarded as compensation will also carry interest at the rate of 12% per annum from the date of this order till realization.
24 The complaint could not be decided within the statutory period due to heavy pendency of cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (VINOD KUMAR GUPTA) MEMBER January 13, 2017.
(Gurmeet S)