Daily Order 	   

                                                                FIRST ADDITIONAL BENCH

 

 

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,     PUNJAB

 

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

 

 

                    Consumer Complaint No.38 of 2017

 

 

 

                                                          Date of Institution   : 25.01.2017              

 

                                                          Order Reserved on : 13.11.2017

 

                                                         Date of Decision     : 15.11.2017

 

 

 

Vipan Kumar s/o Sh. Dharam Sheel Chowdhary, Corresponding Address House No. 6 FF, Sector 16-A, Chandigarh

 

                                                                                       ....Complainant

 

                   Versus

 

 

 

Bajwa Developers Limited, Regd. SCO 210-211, Ground Floor, Above Goptal Sweets, Sunny Business Center Mohali through its Managing Director/Authorized representative.

 

 

 

                                                                             Opposite party

 

 

 

Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).

 

 Quorum:- 

 

          Shri J. S. Klar, Presiding Judicial Member.

              Smt. Surinder Pal Kaur, Member.

         

Present:-

          For the complainant         :  Sh. Sandeep Bhardwaj, Advocate           For opposite party :  Sh. Manoj Vashishta, Advocate .................................................................................................

 

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

           The complainant has filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OP on the averments that he purchased a plot for his own use from OP. OP showed the layout plan mentioning it as duly approved from GMADA and informed him about availability of one residential plot bearing no. 1675 measuring 250 sq. yards with them. It was informed to him that since the plot has already been booked by some other person and same is not interested to retain the plot, as such he can purchase the same. The complainant found location of the plot suitable for him and as such, OP received an amount of Rs.8000/- from him for transfer of the plot in his name. The OP executed one agreement dated 14.06.2011, wherein the plot bearing no. 1675 situated in Sector 123, Jandpur measuring 250 sq. yards was sold to him. The agreement is totally in contravention of the provision of the PAPRA Act. He visited the site and found that OP had not started any development work at the site. He approached OPs many times in this regard, but of no use. Total price of the plot was Rs. 43,75,000/- out of which an amount of Rs.31,87,750/- was received by OP from him.  After receiving the amount, OP kept on extending the dates of handing over the possession thereof to him. The OP was dilly-dallying the matter on one pretext or the other. The office of Administrative (Licensing) has informed, vide information dated 06.08.2014 that letter of intent dated 19.05.2014 has been issued for setting up the residential colony in the land of village Jandpur, Hasanpur and Manana total measuring 139.376 acres. He came to know through information received by one Jaspal Singh that  layout plan submitted by OP for Sector 120, 123, 124, 125, vide drawing no. BDL/2929 dated 20.04.2013 has been approved, vide their letter no. 2343-CTP(PB) MPR-23 dated 26.04.2013. The OP entered into an agreement with the Government of Punjab, wherein the project would have to be completed within three years from the date of signing the agreement, however no development has been done up to 15.09.2013 therein, as the agreement was executed on 16.09.2011. The Government of Punjab has granted exemption under the PAPRA Act , which was subject to fulfilling the conditions mentioned in the notification dated 18.06.2013, however OP failed to comply with the terms and conditions mentioned in the notification. The OP was not in possession of any permissions and approvals of the competent authority at the time of receiving consideration from him. Even the basic requirements have also not been fulfilled by the OP. He has not only suffered the  financial loss, but also suffered mental agony and physical harassment. He has made all efforts for redressal his grievances, but OP did not bother to remove them. In this way, OP is negligent, deficient in rendering service and also indulged in unfair trade practice. The complainant has, thus, filed the complaint directing OP to refund the amount of Rs. 31,87,750/- along with18% interest, further to pay an amount of Rs.6,09,000/-paid towards the rent by him to the landlord, besides Rs.2 lac as compensation for mental harassment and financial loss.

2.      Upon notice, OP appeared and filed written reply and contested the complaint of the complainant by raising preliminary objections that complaint is hopelessly time barred. The complainant is not a consumer, as defined in Section 2(i)(d) of the CP Act 1986. The complainant purchased the plot for commercial use only. The complaint is frivolous and vexatious and is liable to be dismissed. The complainant is estopped by his own act and conduct from filing it. As per section 7 (ii) of the CP Act, every complaint shall also be accompanied by copies of such documents as are necessary to prove the claim, but present complaint has been filed without any supporting documents. It was averred that the change of land user for the plot in question and total area of 58.525 of land was granted by the Chief Town Planner, Punjab vide letter memo no. 87 CTP(Pb) SP-432(M) dated 07.01.2011. The agreement dated 16.09.2011 was entered into between the OP and Governor of Punjab for area measuring 205.54 acres and the said agreement has been extended for a further period of five years. OP offered to deliver the possession to the complainant, but he failed to take possession and pay the prerequisite payments, as agreed between the parties. The complainant has paid Rs.31,87,750/- and total sale consideration thereof was Rs.43,76,000/-. The complainant has failed to prove on record any proof of payment or any receipt issued by OP towards any payments. There is no question of refund, as no notice has ever been served upon the OP by him seeking refund or any compensation. It was further averred that the complainant has not purchase plot for his own use, but he had purchased the said plot for commercial purposes alone. The OP received the payment to the plot, only after the sanctions and approval were accorded by the  competent authorities to it for the said project. The same was communicated to complainant as well. The terms and conditions of the agreement to sell were duly read over and understood by complainant. The plot stood approved in 2013 and the complainant had himself not paid the final payment and did not take the possession of the plot in spite of oral requests made by OP. The complainant has not shown his source of income nor he has placed on record income tax returns since payment of first amount to OP till filing the complaint. The dates were extended by the OP on the asking of the complainant only. The complainant has himself not paid the remaining more than Rs.10 lacs amount out of the total sale consideration, as he was looking for resale of the plot in question just to earn profits. The OP entered into alleged agreement to sell after grant of change of land user dated 07.01.2011 for the said land. Therefore, OP cannot be said to have acted in contravention of the PAPRA Act and rules enacted thereunder. The complainant has not produced any document on record to substantiate his claim to the effect that a home loan was in fact applied, approved or dispersed for the plot in question. The complainant is also silent as to how much installments were paid by him for the said home loan availed on the plot in question and from which bank,  the said loan was availed. Rest of the averments were denied by OP. Any deficiency in service or unfair trade practice was denied by OP and it prayed for dismissal of the complaint.

3.      The complainant tendered in evidence his affidavit Ex.CW-1/A  along with copies of documents Ex.C-1 to Ex.C-11 and affidavit of Surinder Singh son of Partap Singh Ex.C-12 and closed evidence.

4.      OP has not led any evidence. Evidence of OP has been closed, vide order dated 25.09.2017 passed by this Commission.

5.      We have heard learned counsel for the parties at considerable length and also examined the record of the case. The pleadings of the parties have been examined by us. The evidence on the record is being referred to by us for the purpose of adjudication of the case. The complainant deposited the transfer fee of Rs.8000/- with OP on 24.04.2011 with respect to the plot bearing no. 1675 measuring 250 sq. yards. Buyers agreement was executed between the parties on 14.06.2011, vide Ex.C-2 on the record. The validity of the agreement has been questioned on the ground that it is unilateral agreement and not bilateral agreement. The OPs executed this agreement in favour of the complainant. This agreement is proof of this fact that OP received payment of consideration from the complainant, as recorded on it. Consequently, we can read this agreement when it is a valuable piece of evidence showing receipt of the consideration amount by OP from the complainant. Even otherwise, this agreement is on printed form and signed by Jarnail Singh Bajwa, Managing Director of Bajwa Developers Ltd. It is in favour of the complainant and in summary proceedings, it can be read in evidence by us. This agreement has proved this fact that complainant purchased plot no. 1675 from OPs of 250 sq. yards for total consideration of Rs. 43,75,000/-. OPs cannot back out of the terms and conditions of this agreement Ex.C-2. Ex.C-3 is document issued by Administrative Officer Licensing GMADA SAS Nagar, Mohali to one Jaspal Singh for furnishing information under RTI to the effect that letter of intent has been issued to M/s Bajwa Developers Ltd for Village Jandpur, Hasanpur and Manana  District SAS Nagar Mohali for 139.376 acres for setting up the residential colony on 19.05.2014. This document has proved that letter of intent dated 19.05.2014 was issued by Administrative Officer Licensing GMADA SAS Nagar, Mohali  for setting up the residential colony at Jhandur prior to 19.05.2014. OP had no licence to set up the residential colony at Jhandpur, where the plot in dispute is located prior thereto. Ex.C-4 is letter no. 785 dated 11.08.2014 issued by Public Information Officer of Chief Town Planning Punjab to one Jaspal Singh furnishing information under RTI to the effect that the lay out plan submitted by M/s Bajwa Developers Pvt. Ltd  was approved on 26.04.2013 by the competent authority. Prior to 26.04.2013, there was no approval of lay out plan of OPs, as per this letter on the file.  Ex.C-5 is memo dated 2243 dated 26.04.2013 from Chief Town Planner Chandigarh to OPs. Clause 7 of this letter lays down that project can be initiated after seeking exemption under Section 44 of PAPRA Act and thereafter advertisement as well as development work and sale of plot can be started. Letter Ex.C-5 is dated 26.04.2013 and prior thereto OPs could not start the development work in the project and not to issue any advertisement, as per Clause 7 of Ex.C-5. Ex.C-6 is letter from Chief Administrator Punjab Urban Planning & Development Authority PUDA Bhawan SAS Nagar Mohali to OPs on 21.07.2014. Clause V of this document is the most vital document on the record, which is reproduced as under :-

          "The project shall not be advertised / launched and no      money will be collected from General Public for allotment        of land/ plot /flat/any space till such time layout        plans/zoning     plans are cleared by the competent           authority and exemption   U/s 44 of PAPRA Act is issued by the Government."            

It is, thus, evident from perusal of Clause V  of letter Ex.C-6 dated 21.07.2014 that project could not be advertised/launched and no money could be collected from general public for allotment of plots by OPs till lay out plan/zoning plans are cleared by the competent authority and exemption under Section 44 of the PAPRA Act issued by the Government. Ex.C-9 is notification no. 34/2016 granting exemption, subject to fulfillment of all conditions with respect to 159.28125 acres area before grant of exemption under Section 44 of PAPRA Act 1995. Ex.C-10 is document dated 25.01.2017 signed by Surinder Singh Bunwait to the effect that Vipan Kumar is tenant with his family in house no. 6 FF Sector 16-A Chandigarh and receipt dated 25.01.2017 is Ex.C-11 on the record. The complainant also tendered his affidavit on the record, vide Ex.CW-1/A alleging deficiency in service and unfair trade practice on the part of OPs. It is stated that OPs proceeded to collect the money from complainant even before approval of lay out plan and other approvals/sanctions by competent authority. It is stated by the complainant that only shallow assertions were given by OPs to him at the time of receipt of money that they were having necessary approvals of lay out plan and other sanctions issued by the competent authorities.

6.      In rebuttal of this evidence, no evidence of OP appeared on the record and evidence of OPs was closed, vide order dated 25.09.2017. The evidence of complainant went unrebutted on the record.

7.      From, critical analysis of evidence of the complainant, which has gone un-rebutted on the record by OPs and hearing the respective submissions of counsel for the parties, we proceed to decide this case. Ex.C-2 is agreement dated 14.06.2011 coupled with affidavit of Vipan Kumar Ex.CW-1/A has proved it on the record that OPs received the amount from the complainant, as printed on para no.2 of the agreement Ex.C-2. OPs have received substantial amounts of sale consideration from the complainant uptil 12.06.2011 and received the amount of Rs.10 lac on 03.07.2012. This document has, thus, proved it on the record that complainant deposited Rs.8000/- as transfer fee with OPs on 24.04.2011 and buyers agreement dated 14.06.2011 was executed, vide Ex.C-2 and OPs received the substantial sale consideration amounts from the complainant by 12.06.2011, besides amount of Rs.10 lac, which was received on 03.07.2012. Even due payment of installments is also printed on Ex.C-2 and total price of the  plot is Rs.43,76,000/-. OPs have been extending the date for receiving the payments without any protest. The document Ex.C-3 has proved that letter of intent dated 19.05.2014 was issued by Administrative Officer Licensing GMADA SAS Nagar, Mohali to one Japal Singh under RTI Act of this project for setting up the residential colony to OPs at Jhandur on 19.05.2014. Vide Ex.C-4, the lay out plan of Ops was approved on 26.04.2013 by the competent authority, as per information provided by Public Information Officer to one Jaspal Singh under RTI Act pertaining to area where the plot in question is located. OPs were forbidden by Clause 7 of letter Ex.C-5 to issue advertisement and to carry out any development work of the project before obtaining the exemption under Section 44 of PAPRA Act. OPs have not been proved to have received such exemption under Section 44 of the PAPRA Act of Punjab. As per Clause 5 of Ex.C-6  that  the project shall not be advertised / launched and no money will be collected from General Public for allotment  of land/ plot /flat/any space till such time layout  plans/zoning plans are cleared by the competent authority and exemption U/s 44 of PAPRA Act is issued by the Government. The OPs have collected the payments from the complainant even in the year 2011 to boot. OPs have not received the  sanction of lay out plan or exemption under Section 44 of PAPRA Act from the government till 21.07.2014, as is clear from document Ex.C-6 on the record. This is a sheer violation by OPs of Clause 5 of Ex.C-6, the directions issued by Chief Administrator Punjab Urban Planning & Development Authority to OPs on 21.07.2014. The OPs entered into agreement with government of Punjab on 16.09.2011, vide Ex.C-7. Clause 3 of this agreement lays down that project will have to be completed within 3 years from the date of signing of agreement by the promotee with the State Government unless otherwise extended for further period of not more than one year by the government on request of promoter for reasons to be recorded in writing. This document further lays down that in addition to the Master Plan roads, promoter shall also construct smaller roads as per zonal plan, to integrate the road network with the adjoining urban estate to be developed by GMADA and surrounding areas. Even Chief Town Planner Punjab PUDA wrote to OPs on 23.04.2012, vide Ex.C-8 that promoter shall not undertake any development work at site until plan is approved by the competent authority. Vide Clause 5 of Ex.C-8, OPs were directed to obtain NOC from PPCB under the Water (Prevention and Control of Pollution) Act, 1974, Municipal solid Waste Management and Handling Rules, 2008 or any other relevant provision of law. We find that OPs violated Section 3 of Punjab Apartment and Property Regulation, Act 1995 in this case. We find that OPs indulged in unfair trade practice in this case by collecting money from the complainant even before approval of lay out plan in question and issuance of other statutory sanctions in this project by the competent authority. There is no evidence on record by OPs that they have complied with the same. OPs has failed to rebut the evidence of the complainant on the record. The evidence of the complainant has gone unchallenged on the file of this case. We find that OPs indulged in unfair trade practice in this case by collecting money from the complainant in the year 2011 itself, when OPs were forbidden till approval of the lay out plan issued by authorities as per Clause 5 of document Ex.C-6 of Chief Administrator Punjab Urban Planning & Development Authority dated 21.07.2014 from issuing advertisements and receiving money from the people. OPs without approval of lay out plan and without exemption under Section 44 of Punjab Apartment and Property Regulation Act, 1995 by the government and without any other sanctions of the competent authorities, collected the money from the complainant for the plot and thereby violated all the terms and conditions, as mandated in Section 3 of the Punjab Apartment and Property Regulation Act, 1995. OPs were bound to make fair and true disclosure of the nature of its title of the land on which the construction to be developed. Section 4 (1) of Punjab Apartment and Property Regulation, Act 1995 lays down 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 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.

8.      As a result of our above discussion, the complaint of the complainant succeeds. The OPs are directed to refund the  entire deposited amounts of the complainant along with interest @ 12% per annum from the date of their deposits till actual payment. OPs are also directed to pay compensation of Rs.1,50,000/- to complainant for mental harassment  and Rs.30,000/- as costs of litigation. The above said amounts shall be paid by OPs to complainant within 45 days from the date of receipt of certified copy of this order.

9.      Arguments in this complaint were heard on 13.11.2017 and the order was reserved. Certified copies of the order be communicated to the parties under rules.

10.    The complaint 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 November 15 ,  2017                                                                (ravi)