2nd Additional Bench

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
              PUNJAB, CHANDIGARH

                Consumer Complaint No. 289 of 2017

                           Date of Institution : 27.04.2017
                           Date of Reserve      : 07.03.2018
                           Date of Decision : 27.03.2018

1.   Seema Singhal wife of Sh.Surender Kumar Singhal R/o
     H.No.9, First Floor, Block-E-3, Sector -7, Rohini, Delhi.
2.   Surender Kumar Singhal S/o Sh.Tarsem Chand, R/o H.No.9,
     First Floor, Block-E-3, Sector -7, Rohini, Delhi.
                                                    ....Complainants
                               Versus

1.   M/s Skycity Builders & Promoters Pvt. Ltd., # 303, Shivalik
     Enclave, Landran Road, Kharar, Distt. Mohali, Punjab -
     140301 through its authorized signatory.
     IInd Address :- Skycity Builders & Promoters Pvt. Ltd. SCO
     No.90, City Heart, Opposite Bank Square, Chandigarh-
     Kharar Highway, Kharar, Distt. Mohali, Punjab.
2.   Greater Mohali Area Development Authority, PUDA Bhawan,
     Sector 62, Mohali through Additional Chief Administrator.
                                               ....Opposite parties


                      Consumer Complaint under Section 17
                      of the Consumer Protection Act, 1986.

Quorum:-
     Mr. Gurcharan Singh Saran, Presiding Judicial Member
      Mr. Rajinder Kumar Goyal, Member

Present:-
     For the complainant          : Sh.H.P.S.Ghuman, Advocate
     For opposite parties No.1    : Sh.Suneet Sharma, Advocate
     For opposite party No.2      : Sh.G.S.Arshi, Advocate

GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER
 Consumer Complaint No. 289 of 2017                                             2



                                            ORDER

Complainants have filed this complaint against the opposite parties under Section 17 of the Consumer Protection Act, 1986 (for short 'the Act'), on the averments that opposite parties had launched a Shopping Complex Project under the name and style of City Heart inside NH-21, Chandigarh-Kharar Road, Kharar. The complainants had visited opposite party No.1 on the basis of advertisements, pictures shown in various advertisements. The complainants wanted to establish their shop for earning their livelihood and considering the demonstration made by the opposite parties in their brochure or otherwise complainants agreed to purchase the commercial showroom No.84/B measuring 16x66 sq. ft. 1056 sq.ft. on 1st floor and buyer's agreement was executed between the complainants and opposite parties on 28.04.2015 and the total sale price was settled as Rs.52,05,100/-. At the time of execution of the agreement opposite parties had not provided the necessary documents i.e. necessary permission from the Government or other authorities. The complainants and opposite party No.1 entered into another agreement i.e. Unit Buyer Option Agreement Assured Return Plan on 04.05.2015 for providing assured return at the rate of 12.5% per annum on the sum of Rs.36,00,000/- received by them i.e. Rs.37,500/- per month till offer of possession or 24 months whichever is earlier. The complainants had made the payment of Rs.40,12,500/- upto 31.03.2016. After adding the sum of Rs.37,500/- which was due from the opposite parties, the complainants have paid a sum of Rs.44,62,500/-. The Consumer Complaint No. 289 of 2017 3 project was to be completed within 21 months period. However, opposite party No.1 wrote a letter dated 16.09.2016, which contains a maintenance agreement to show that the possession of the shop has been given to the complainants but the said agreement is neither signed by the complainant nor they have taken the possession of the shop in question. There is another letter dated 21.11.2016, vide which opposite party No.1 had demanded the amount within 15 days without making reference to any particular amount stating that since your unit is ready for possession and in case the payment is not made within 15 days, booking will be cancelled, therefore, opposite parties appear to be in confusion. The complainant visited many times to the office of the opposite parties for getting the possession of the shop after developing the market with infrastructure but opposite parties could not give any satisfactory reply. Even, opposite party No.1 could not get completion certificate from PUDA/GMADA i.e. opposite party No.2. Alleging deficiency in service on the part of the opposite parties, this complaint has been filed by the complainant seeking directions against the opposite parties to direct the opposite party to refund the amount of Rs.44,62,500/- alongwith interest at the rate of 18% p.a. from the date of respective payments; to pay a sum of Rs.5,00,000/- as compensation for unnecessary harassment and mental tension and agony and other sufferings and Rs.55,000/- as litigation expenses.

2. Upon notice, opposite party No.1 appeared and filed its reply by taking preliminary objections that the complaint is not Consumer Complaint No. 289 of 2017 4 maintainable for want of territorial jurisdiction; the complainants have concealed the material facts and have tried to play fraud with the Hon'ble Court by projecting wrong facts. It was denied that the project was not approved by GMADA/PUDA. Vide letter dated 12.05.2015 a technical approval of building control sheets, by Executive Officer, M.C. Kharar was issued. Consent under Section 25 of the Water (Prevention & Control of Pollution) Act, 1974 and under Section 21 of Air(Prevention & Control of Pollution) Act, 1981 was accorded by Punjab Pollution Control Board was accorded on 04.09.2014. M.C., Kharar vide letter dated 17.07.2014 approved Solid Waste Management of OPs. NOC dated 20.08.2014 was issued by Highway Administrator-cum-Executive Engineer Central Works Division, Mohali. Permission Letter of CLU dated 29.01.2014 under PAPRA. Letter dated 27.08.2014 of Co- ordinates, Height and Distance from Nearest Airport issued by Survey of India, Vide letter dated 15.07.2014, NOC was issued by Executive Officer, Central Works Division, Mohali. The complaint is bad for mis-joinder and non-joinder of necessary parties. The M.C. Kharar is the authority, whereas the project does not fall within the purview of opposite party No.2 and that opposite party No.2 has been wrongly impleaded by the complainants. The entire market has already been completed. The complaint is barred by the principle of estoppel. The agreement was executed between the complainant and opposite party No.1 and that SBP group was the main party did not survive; as per clause 22 of the agreement, the allottee is entitled for cancellation of the allotment within a period of Consumer Complaint No. 289 of 2017 5 six months of the allotment and that there is an arbitration clause and in case of any dispute, the matter is to be referred to the Arbitrator as provided under the agreement. On merits, launching of the project of opposite party No.1 is matter of record. It was denied that the complainants wanted to establish their shop for earning their livelihood. Basically, they do agree to get this shop for resale and asked the value of resale of the shop being resident of Delhi. The shop in question was ready in the month of August, 2016 and it was intimated by opposite party No.1 to the complainants vide registered letter dated 16.09.2016 and 17.09.2016. The complainants did not come forward to take the possession. Other averments of the complaint were denied. It was denied that there is any deficiency in service or unfair trade practice on the part of opposite party No.1. Complaint is without merit, it be dismissed.

3. On the other side, opposite party No.2 filed its written reply and took preliminary objections that there is no relationship of consumer and service provider between the complainants and this opposite party, therefore, there is no locus standi to file the complaint against this opposite party. The complaint is bad for mis- joinder and non-joinder of the necessary parties and that Municipal Council, Kharar is the necessary party. It has been stated that the allegations of deficiency in service is against opposite party No.1 as the area falls within the municipal limits of Municipal Committee, Kharar and as per the notification dated 24.06.2010 issued by the Government of Punjab, Department of Housing and Urban Consumer Complaint No. 289 of 2017 6 Development, Regional Deputy Director, Local Government, Patiala is the competent authority under Section 2(1) of the Punjab Apartment and Property Regulation Act, 1995 for the area falling within the municipal limits of Municipal Committee, Kharar. Other averments were denied. Therefore, there is no merit in the complaint filed by the complainant against this opposite party. It is without merit, it be dismissed.

4. In support of their contentions, complainant tendered into evidence the affidavit as Ex.C-A, brochure Ex.C-1, booking form Ex.C-2, agreement as Ex.C-3, Unit Buyer Option agreement Assured Return Plan as Ex.C-4, receipt No.78 as Ex.C-5, receipt No.081 as Ex.C-5A, receipt No.80 as Ex.C-5B, receipt dated 19.04.2015 as Ex.C-5C, receipt dt. 4.5.2015 as Ex.C-5D, receipt dated 31.05.2015 as Ex.C-5E, receipt dated 30.06.2015 as Ex.C- 5F, receipt dated 31.07.2015 as Ex.C-5G, receipt dated 31.08.2015 as Ex.C-5H, receipt dated 30.09.2015 as Ex.C-5I, receipt dated 31.10.2015 as Ex.C-5J, receipt dated 30.11.2015 as Ex.C-5K, receipt dated 31.12.2015 as Ex.C-5L, receipt dated 30.01.2016 as Ex.C-5M, receipt dated 29.02.2016 as Ex.C-5N, receipt dated 31.03.2016 as Ex.C-5O, i.e. receipts (colly), letter dated 16.09.2016 as Ex.C-6, letter dated 21.11.2016 as Ex.C-7, legal notice dated 03.04.2017 as Ex.C-8, postal receipt as Ex.C-9, RTI Information by Nagar Council, Kharar as Ex.C-10, photographs of site as Ex.C-11, whereas opposite party No.1 tender into evidence affidavit of Hitesh Verma, Director dated 20.02.2018 as Ex.OP-1/A, approval letter dated 12.05.2015 as Ex.OP-1/1, NOC letter dated Consumer Complaint No. 289 of 2017 7 04.09.2014 as Ex.OP-1/2, Certificate dated 17.07.2014 as Ex.OP- 1/3, NOC letter dated 20.08.2014 as Ex.OP-1/4, Permission letter dated 29.01.2014 as Ex.OP-1/5, NOC letter dated 17.07.2014 as Ex.OP-1/6, letter dated 27.08.2014 as Ex.OP-1/7, NOC letter dated 15.07.2014 as Ex.OP-1/7A, Map as Ex.OP-1/8, photographs as Ex.OP-1/9, reply by OP No.1 dated 24.04.2017 as Ex.OP-1/7, postal receipts of reply dated 24.04.2017 as Ex.OP-1/18 and Ex.OP-1/19, postal tracking receipt as Ex.OP-1/20 and Ex.OP- 1/21, and opposite party No.2 tendered into evidence the affidavit of Sh.Meetinder Singh, District Town Planner (Licensing) dated 04.01.2018 as Ex.OP-2/A and notification dated 24.06.2010 as Ex.OP-2/1.

5. We have heard the counsel for the parties and have carefully gone through the averments as alleged in the complaint, evidence, written reply and documents filed by the parties.

6. Counsel for opposite party No.1 has taken the plea that this Commission does not have the territorial jurisdiction to entertain the complaint. It is clear from the complainant that the shop was to be built in the shopping complex under the name and style of 'City Heart', Chandigarh-Kharar Road, Kharar, which is a part of District S.A.S. Nagar, Mohali, which falls within the territorial jurisdiction of this Commission. Therefore, we do not agree with the plea raised by the counsel for opposite party No.1 that this Commission does not have the territorial jurisdiction to entertain this complaint.

7. Another objection taken by the counsel for opposite party No.1 that there is an arbitration clause under the agreement, therefore, the matter is required to be referred to the arbitrator. No doubt that there is an arbitration clause in the agreement. In case, opposite party No.1 was interested to refer it to the arbitrator then it should have moved an application under Section 8 of the Arbitration and Conciliation Act but no such application was moved by opposite party No.1. Further, under Section 3 of the Consumer Protection Act, an additional remedy has been provided for entertaining of the complaint before the Consumer Fora, therefore, under Section 3 of the Consumer Protection Act complaint is maintainable before this Commission. Therefore, we do not with the plea raised by the counsel for the opposite parties that Arbitration clause is there, therefore, consumer complaint before this Commission is not maintainable.

8. Although, no specific objection has been taken by the counsel for opposite party No.1 in the written statement but in the oral arguments, it has been submitted by him that the complainant is not a consumer. He further argued that it is a legal preposition, even if, no specific objection has been taken by the counsel for opposite party No.1 in its written reply, the Commission is also under obligation to check it whether the complainant comes within the definition of consumer. No doubt that no specific plea has been taken by opposite party No.1 to say that the complainant is not a consumer but it is also the duty of the Commission to check it Consumer Complaint No. 289 of 2017 9 whether the complainant is consumer or not. The definition of consumer under Section 2(1)(d)(ii) is as under:-

"[hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any stream of deferred payment, when such services are availed of with the approval of first mentioned person [but does not include a person who avails of such services for any commercial purpose];

[Explanation - For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;]

9. In case, we go through the contents of the complaint, the complainant booked a shop in the shopping complex to be constructed by opposite party No.1, therefore, certainly it is a commercial property and commercial shop has been excluded from the jurisdiction of the Consumer Fora except in the circumstances as referred in the explanation. In that circumstance, in case a commercial property is to be used by the complainants to earn their livelihood by way of self-employment then consumer complaint with regard to the commercial property is also maintainable. It has been so observed by the Hon'ble Supreme Court in the judgment reported in 2016(3) R.C.R. (Civil) 924 titled as "Bunga Daniel Babu v. M/s Sri Vasudeva Constructions", wherein it was Consumer Complaint No. 289 of 2017 10 observed that consumer means any person who hires or avails of any services for a consideration, but does not include a person who avails of such services for any commercial purpose" does not include a person who avails of such services for any commercial purpose and the "commercial purpose" does not include services availed by him exclusively for the purpose of earning his livelihood by means of self-employment." Therefore, even according to this judgment in case of commercial purpose then the services might have been taken for the purposes of earning livelihood by means of self-employment. In case, we go through the complaint filed by the complainants in para No.3 of the complaint, it has been referred that the complainants wanted to establish their shop for earning their livelihood and further in para No.8, it has been referred that the complainants invested the amount for opening a showroom for earning their livelihood and objection has been taken by opposite party No.1 that the word self-employment is not there. No doubt that in the explanation under Section 2(1)(d)(ii) the word self- employment is not there but in case the word self-employment has not been specifically used then we are to check it what is the intention of the complainants in the complaint, whether the wording used in the complaint establishes that he wanted to purchase this shop for self-employment. This legislature has been introduced for the welfare of the consumer and sometimes the consumer may not be alive of the specific wording used in the Act and the complaint cannot be dismissed only on the ground that specific word self- employment has not been mentioned, then it will be too technical. Consumer Complaint No. 289 of 2017 11 In case we go through the language used by the complainant in para No.3 and 8 of the complaint, it has been stated in para No.3 that complainants wanted to establish their shop and in para no.8 to open a showroom to earn their livelihood. Therefore, the broad meaning of these wordings indicate that they wanted to establish their shop for self-employment. The opposite parties have not led any evidence to say that they are already in business and that this shop is not required to the complainants to establish their own shop to the complainants to establish their own business by way of self- employment. Therefore, in the absence of any contrary evidence on behalf of the opposite parties, the plea taken by the complainants in the complaint can be accepted. Therefore, we are of the opinion that this shop was booked by the complainants to earn their livelihood by way of establishing their own shop for self- employment and in completes the ingredients as referred in explanation to Section 2(1)(d)(ii) of the Act. Therefore, we do not agree with the plea raised by the counsel for opposite party No.1 that complainants are not covered under the definition of the consumer as defined under the Act.

10. As per the pleadings of the parties, the complainants had booked one shop with opposite party No.1 for a total costs of Rs.52,05,100/- and Buyer's agreement was executed between the parties. The same is Ex.C-2, which refers the Shop No.84B, measuring 1056 sq.ft. on First Floor. According to Clause No.1 of the agreement, it has been referred that allottee agrees that the allotment shall be made and confirmed by notice on completion of Consumer Complaint No. 289 of 2017 12 the project and after that Conveyance Deed/Sub-Lease in favour of the allottee. According to clause 29 of the agreement, it has been stated that the company shall put its best efforts to complete the development of the unit within 15 months or within an extended period of 6 months from the date of execution of agreement/allotment letter, which was executed on 28.04.2015 and 21 months will be completed on 27.01.2017 and the complaint was filed by the complainants on 27.04.2017 when the opposite parties could not deliver the possession to the complainants within the agreed time. On 04.05.2015, Unit Buyer Option Agreement Assured Return Plan was executed between the complainants and opposite parties in which it has been referred that the sum of Rs.52,05,100/- is the basic sale consideration of Unit No.84-B on First Floor and according to term No.2 of the terms and conditions it has been referred that the allottee has paid the above said amount on the assurance by the developer to provide him an assured return of 12.5% on received amount of Rs.36,00,000/- till the offer of possession or 24 months whichever is earlier i.e. Rs37,500/- per month and complainants have placed on record the receipts from May, 2015 to March, 2016, vide which the sum of Rs.37,500/- per month has been shown paid to the complainant which is shown as interest for the project 'City Heart', therefore, apart from the other payment made by the complainants a sum of Rs.4,12,000/-was adjusted in the account of the complainants on account of this payment.

11. Counsel for the complainants further argued that opposite party No.1 is indulged in unfair trade practice against the provisions of PAPRA. In this regard, Section 3 & 4 of the PAPRA is releavant, which reads as under:-

"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;

(f) disclose on reasonable notice or demand, if the promoter is himself the builder, the prescribed particulars as respects the designs and the material 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 per cent 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 persons belonging to such economically weaker sections of society, in such manner and on such terms and conditions as may be prescribed;

(f) 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 persons 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;

(1) 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 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. - (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 reason able 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 authorized 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 time of issue of the advertisement or prospectus believe that the statement was true.

NOTES Bar of section 4. - A few provisions of the Act may be noticed. The Act was published in the Gazette on August 9, 1995. In Section 1(3), it was provided that the Act "shall come into force on such date as the State Government may by notification in the official Gazette, appoint and different dates may be appointed for different areas of the State." Vide notification dated October 13, 1995, the Act was enforced with effect from October 15,1995 in the whole of the State of Punjab. Under Section 4, it has been inter alia provided that' '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 its number is mentioned in the advertisement or prospectus " By Section 21(1), it was provided that" from such date as may be fixed by the State Government, by notification in the official Gazette in this behalf, no person shall carry on the business of promoter or estate agent, or represent or hold himself out as carrying on such business, except under and in accordance with the terms and conditions of the certificate of registration granted under this Act." Clause (2) provides for the submission of an application for registration as a promoter or as an estate agent alongwith the prescribed fee on the prescribed form. It is, thus, clear that the provision for registration of promoters and estate agents was to become operative from a date to be fixed by the State Government by notification in the official Gazette. The application had to be submitted on a prescribed form. The prescribed fee had also to be deposited. It is only thereafter that the bar under Section 4 could become operative.

Advertisements issued before framing of rules - Do not violate the Consumer Complaint No. 289 of 2017 16 Act. - Prior to the promulgation of this Act, the provisions of Punjab Regulation of colonies Act 1975 were in force. Even under those provisions, a person was debarred from setting up a colony except after compliance thereof. However, by section 46, the provisions of the 1975 Act were replead. On the promulgation of the 1995 Act, the provisions of the 1975 Act were no longer in force. Thereafter, it had become incumbent on a person to get himself registered in view of the provisions of Sect ion 21. The date in this behalf was fixed as November 30, 1995 vide notification dated November 10, 1995. The application for registration had to be made on the prescribed form. The form had to be prescribed under the rules. The rules were also promulgated on November 23,1995. Thus there was a hiatus in the intervening period. It was during this interval when the 1975 Act did not exist and the provisions of 1995 Act regarding registration as a promoter were not in force that the advertisements had been issued by the petitioner. It was dec1ared by the High Court that the advertisements did not violative the provisions of the 1995 Act."

12. According to these Sections before launching the Scheme, the builder is required to make full disclosure of the name and title and authorized sanctions from the Government or other competent authorities and only then advertisement can be given and applications can be invited. In the present case, the allotment letter was issued on 28.04.2015, whereas, according to the documents placed on record by opposite party No.1 as Ex.OP-1/1 the Technical Approval of Building Control Sheets of City Heart Commercial Town Planning Scheme, Kharar issued by Municipal Council, Kharar written to opposite party No.1 on 12.05.2015, therefore, opposite party No.1 issued the allotment letter even before obtaining clearance of the project by the competent authority. He has further referred to another document as Ex.OP- 1/4 issued by Highway Administrator-cum-Executive Engineer, Central Works Division, Mohali for grant of provisional NOC for grant of permission for approval of passage on Mohali-Roopnagar Road National Highway No.21 (205) for Commercial Complex of M/s Sky City Builders & Promoters Pvt. Ltd. and according to Consumer Complaint No. 289 of 2017 17 Clause No.1, it has been referred that final approval shall only be given after construction work is completed that you will construct access as per approved drawing at your own cost within 6 months from the issue of provisional NOC, otherwise action as per clause 11 of MORT&H guidelines would be taken. However, counsel for the opposite party No.1 has not placed on record that he constructed access from this road to its township according to the approved drawings and after constructing it within a period of six months from the issuance of this letter i.e. 20.08.2014. He was to apply for final approval but no drawing has been placed on the record, whether the road has been constructed by opposite party No.1 as per approved layout plan. However, according to Clause VI of the letter issued by Regional Deputy Director-cum-Competent Authority, Local Govt. Patiala that Promoter shall obtain NOC from PPCB under the Water (Prevention and Control of Pollution) Act, 1974 and according to clause X that promoter shall obtain permission from the Forest Department, Govt. of India under Forest Act, 1980 before undertaking development at site and according to Clause XII promoter shall make provision of rainwater harvesting within the project area at its own cost and under the Notice, Note No.13 says that before getting the CLU, no booking or advertisement shall be done by the promoter. No CLU containing the terms and conditions have been placed on the record. There is no evidence with regard to getting the permission from the Forest Department under the Forest Act, 1980. There is no evidence of provision of Rain Harvesting within the project area has been made Consumer Complaint No. 289 of 2017 18 by the opposite parties. Then the information was taken by the complainants under the RTI (Ex.C-10) i.e. Letter from Municipal Council, Kharar dated 09.11.2017, wherein it has been referred that till date no completion certificate has been issued in favour of opposite party No.1 with regard to the completion of the project. In case opposite party No.1 has failed to complete the project within the specific time and to handover the possession, it amounts to deficiency in service and complainants are entitled to withdraw from the scheme. A reference can be made to the judgment reported in 2017(1) CPR 168 (NC) titled as "Sanjay Kumar v. Sahara Prime City Limited & Ors.", wherein it was held that allottee is entitled to withdraw from the scheme in the event of delay in completion of that project.

13. Now, we are to check it that how much amount was deposited by the complainants with opposite party No.1. In para No.6 of the complaint, it has been referred that the complainants have made a payment of Rs.40,12,500/- till 31.03.2016. There are three receipts Ex.C-5, Ex.C-5A, Ex.C-5B, Ex.C-5C and Ex.C-5D. According to it a sum of Rs.36,00,000/- has been paid and further the affidavit of complainant shows that the sum of Rs.36,00,000/- has been paid by the complainants. Similarly, reference is given in the agreement. Ex.C-4 is the Unit Buyers Option Agreement. No other evidence has been placed on record that the sum of Rs.40,12,500/- has been paid by the complainants to opposite party No.1. A sum of Rs.4,12,000/- has been paid to the complainants as assured return In case of refund any interest is to Consumer Complaint No. 289 of 2017 19 be given then in that eventuality, it is to be decided whether interest will be paid on the deposited amount or the complainants will be entitled to the interest or the assured return received by them from the OPs. Certainly, the complainants will be entitled to interest on the deposited amount and not on the amount received as assured income from the OPs. In case, the project was not completed within the specific time then the complainants are entitled for refund and in case refund then interest at the rate of 12% interest is to be paid, it has been so provided under Rule 17 of PAPRA Rules, 1995, which reads as under:-

"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."

Therefore, in case on the deposited amount, we allow 12% interest then they will not be entitled to the interest in case payment for the assured return of Rs.37,500/- per month has been received by the complainant.

14. No other point has been raised by the counsel for the parties.

15. Sequel to the above, we are of the opinion that there is deficiency in service on the part of the opposite party No.1 as opposite party No.1 failed to deliver the possession of the shop to Consumer Complaint No. 289 of 2017 20 the complainants within the agreed time after receiving the major amount as demanded by the opposite party No.1 from time to time. In case, the shop has not been constructed or possession was not delivered within the agreed time then the complainants have a right to withdraw from the scheme and seek refund. Accordingly, opposite party No.1 is directed as under:-

(i) to refund a sum of Rs.36,00,000/- alongwith interest at the rate of 12% p.a. from the respective dates of deposit till realization as per Rule 17 of the PAPRA;

(ii) pay a sum of Rs.4,12,000/- received by the complainant as an Assured Return to OPs and adjusted by the OPs in the account of OPs.

(iii) pay Rs.1,00,000/- as compensation for mental agony and harassment; and

(iv) pay Rs.21,000/- as litigation expenses.

16. Opposite party No.1 is directed to comply with the above directions within 45 days from the receipt of copy of the order.

17. The complaint could not be decided within the statutory period due to heavy pendency of court cases.

18. Order be communicated to the parties as per rules.

(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER March 27, 2018 parmod