Jalandhar Improvement Trust & Anr vs Goverdhan Dutt Sharma

Deepa Sharma, Presiding Officer

The present Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986 (for short "the Act") has been filed against the order of the State Consumer Disputes Redressal Commission, Punjab, Chandigarh (for short "the State Commission") dated 16.05.2016 in Appeal No.546 of 2015 of the Appellants against the order of the District Consumer Disputes Redressal Forum, Jalandhar (for short "the District Forum") dated 16.04.2015 in Complaint No.270 of 2014.

Brief facts of the case are that the Petitioner had floated a scheme known as Surya Enclave Extension (94.97 acre) Development Scheme. The Respondent/Complainant had applied for the allotment of a plot of 100 sq. yards in the pensioners category. He was allotted plot no.154-C in 94.97 Acre vide memo dated 07.12.2011. On different dates he paid Rs.1,70,000/-, Rs.3,32,950/-, Rs.3,18,750/-, Rs.3,06,000/-, Rs.2,93,250/- and Rs.2,80,500/-. The Petitioner failed to hand over the possession of the plot and later on, the Complainant learnt that the Petitioner did not have the possession of the land and therefore, unable to hand over the possession of the subject plot to him. Aggrieved he filed the Complaint before the District Forum.

Written statement was filed by the Petitioner before the District Forum. The fact of allotment of plot and deposit of money by the Respondent/Complainant is admitted. It was submitted that the Complainant had deposited a sum of Rs.15,22,550/-. It was also stated by the Petitioner in their Written Statement that an order of status quo was passed in Civil Writ Petition No.11234 of 2011 and Civil Writ Petition No.16324 by the High Court wherein the acquisition of the land was challenged. Due to the pendency of the Writ Petition, and the status quo order, the possession of the subject property could not be handed over to the Complainant.

Parties led their evidences and the District Forum after hearing the learned counsel for the parties and perusing the record held as under:

"6. It is not disputed that complainant was allotted plot of 100 sq.yards in Surya Enclave Extension Scheme and complainant was intimated in this regard vide letter dated 23.12.2011 Ex.OP2/B. Ex.CC is allotment letter dated 2.4.2012. Complainant has deposited Rs.16,92,450/- with opposite parties vide draft/receipt/cheques Ex.CC to CI. In its written reply, opposite party has not disputed this fact and simply pleaded that payments are matter of record. Although in the written reply, the complainant has mentioned the decision of Hon'ble High Court in Writ Petition No.1684 of 2014 titled as Ashok Kumar Vs. State of Punjab but copy of judgment passed in this Writ Petition has neither been annexed with the written reply nor produced at the time of arguments. So, we are not aware of the facts of that case. In the present case despite depositing of huge amount by the complainant with the opposite party trust, it is not in position to deliver possession of the allotted plot to the complainant. As per clause 6 and 7 of the allotment letter, the allottee could get possession of the plot after executing an agreement with the trust after payment of 1/4th amount. In the present case, according to the own admission of the opposite parties, the trust is not in possession of entire scheme area and due to status quo order passed by Hon'ble High Court qua the property under acquisition and allotted to the complainant, the possession of the properly was not delivered to him i.e complainant. The opposite parties have specifically pleaded this fact in preliminary objection No.4 of its written reply. So when opposite parties are not in a position to deliver the possession of the allotted plot to the complainant due to pending litigation before hon'ble High Court, the complainant can not be made to wait indefinitely. It is not known when the writ petition mentioned in the written reply shall be finally decided by Hon'ble High Court. It is in the affidavit of the complainant that he is 71 years of age and has applied for the plot in pensioner category. So at this stage, his hard earned money can not be retained by the opposite party trust without any fault on part of the complainant."

In Appeal vide impugned order, the State Commission had confirmed this order and all the contentions of the Petitioner were dismissed. The only plea taken by the Petitioner before the State Commission was that they were unable to give possession to the Complainant due to the status quo order of the High Court in the Writ Petition and therefore it could not be said that there was a deficiency in service. The State Commission after elaborate discussion of all the contentions of the Petitioner held as under:

"8. The opposite parties themselves averred in the written reply that on account of the status-quo order issued by the Hon'ble High Court in Civil Writ Petitions No.11234 of 2011 and 16324 of 2011, they were not in a position to deliver the possession of the plot to the complainant and the same was not delivered to him.

It is very much clear from the terms and conditions of the allotment letter that all the development facilities were to be provided within two and a half years by the opposite parties. The complainant has sworn in his affidavit that no development has taken place at the spot and rather there is status-quo order regarding the land, which was issued by the Hon'ble High Court in the writ petition filed by the land owners. In similar case i.e. in Consumer Complaint No.129 of 2015 decided on 28.3.2016 by this Commission (Hardev Singh vs. Chairman, Improvement Trust, Jalandhar and another) the complainant therein proved on record the letter dated 21.10.2005 (Memo No.6/44/05-4LG2/16729-90), which was written by the Local Government Department, Punjab to all the Improvement Trusts in the State of Punjab. As per that letter, before commencement of the process of allotment of the plot in the Scheme, the Chairman and Executive Officer of the Improvement Trusts were to certify on record that physical possession of the site(s) of proposed allotment/auction free from all encumbrances/obstructions was readily available for onward transmission to the prospective allottees and that there was no physical obstruction to start the construction activities. In fact, this was the position taken up by the State of Punjab in the letter dated 23.2.1983 (Memo No.66-I-3GII-83/7070-7090) Ex.C-11, which was reiterated. In that letter it was mentioned that as far as possible the Improvement Trusts shall allot/auction the sites only when they were sure that they were in a position to deliver the possession of the site to the purchaser. It is a fact that the possession of the whole of the land, which form part of the Scheme, was not with the opposite parties when they commenced the process of allotment of plots to the complainant and the other applicants. The original land owners were in possession thereof, who had obtained the status-quo order from the Hon'ble High Court. In these circumstances the opposite parties should not have proceeded with the Scheme and by indulging in the activity of allotting the plots in the Scheme, when possession of whole of the land was not with them, they adopted unfair trade practice.

Similar question had arisen before us in Consumer Complaint No.82 of 2013 decided on 30.07.2014 (Sanjay Gupta Vs. Jalandhar Improvement Trust & Another). That complaint was filed in respect of the plot in the same Scheme and the facts were similar. The complaint was allowed and against that order, the opposite parties preferred the appeal (F.A. No.1216 of 2014) before the Hon'ble National Commission, which was decided on 01.07.2015 (Jalandhar Improvement Trust & Another Vs. Sanjay Gupta). The Hon'ble National Commission held as under:

Thus, it is manifestly clear from the above order that as on 8.3.2011, there was "Status quo regarding possession". However, the appellants despite having full knowledge of the above order of the High Court, issued allotment letters on 26.12.2011 and 23.12.2011, in respect of plots in question. Therefore, above facts clearly goes on to show, that at the time of issuance of the allotment letters in respect of plots in question, it was well within the knowledge of the Appellant-Trust, that there was an impediment in allotment of the plots in question. In spite thereof, Appellant-Trust had gone ahead and allotted plots in question to the respondents, which it could not have done so. In this manner, appellants have played fraud with the general public and thus collected huge amount of money.

The aforesaid act of the appellants, clearly falls within the meaning of "Unfair Trade Practice" as defined under Section 2(1)(r) of the Act, relevant portion of which states;

"(r) "unfair trade practice" means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely:

xxxxxxxxxxxxxxxx"

Appellants having full knowledge that the scheme in question could not see the light of the day, still promoted the scheme to befool the public. Thus, appellants have adopted "unfair method" as well as "deceptive practice" in promoting the sale of the plots in question. This act of appellants, is squarely covered within the meaning of "Unfair Trade Practice".

Furthermore, appellants after having taken substantial amount from the respondents in the year 2011, are still enjoying their hard earned money for last many years. Now, when appellants are not in a position to allot the plots in a habitable condition to the respondents, then why they are still withholding respondents' money. There is no reasonable and plausible explanation, in this regard from the side of the appellants. We deplore such "unfair trade practices" being adopted by the Appellant-Trust, which is a Public Body.

It would also be pertinent to observe, that appellants have not given any firm date of handing over the possession of plots in question, to the respondents which also is a "Deceptive Practice". The appellants should have given firm date of handing over of possession, at the time of taking booking amount. By not indicating the true picture with regard to their scheme to the respondents, appellants induced them to part with their hard earned money, which also amounts to "unfair trade practice".

Thus, appellants by not delivering the physical possession of fully developed plots to the respondents, till date even after having received more than 90% of the price thereof, are not only deficient in rendering service but are also guilty of indulging into "unfair trade practice".

Appellants in the present case, "wants to have the cake and eat it too", as admittedly they have received about 90% of the sale price of the plots. The appellants are thus enjoying possession of the plots as well as substantial amount of consideration paid by the respondents. On the other hand, respondents after having paid substantial amount of the sale consideration, are still empty handed.

Such type of unscrupulous act on the part of Appellant-Trust should be dealt with heavy hands, who after grabbing the money from the purchasers, enjoy and utilize their money but do not hand over the plots on one pretext or the other. Appellants want the respondents to run from one fora to other, so that appellants can go on enjoying the respondents' money without any hindrance.

It is well settled, that no leniency should be shown to such type of litigants who in order to cover up their own fault and negligence, goes on filing meritless appeal in consumer foras. Equity demands that such unscrupulous litigants whose only aim and object is to deprive the opposite party of the fruits of the decree, must be dealt with heavy hands. Unscrupulous developer like Appellant-Trust, who after taking almost entire cost of the plots, do not perform their part of obligation, should not be spared. A strong message is required to be sent to such type of Public Bodies, that this Commission is not helpless in such type of matters."

This is not the first litigation coming up before this Commission regarding the said Scheme. A number of complaints and appeals regarding that Scheme had already been decided by this Commission as well as by the Hon'ble National Commission. Learned counsel for the complainant has relied upon one of the judgments of the Hon'ble National Commission rendered in FA No.1215 of 2014 decided on 1.7.2015 (Jalandhar Improvement Trust and another v. Munish Dev Sharma) in support of his First Appeal No.546 of 2015 and for dismissing the appeal at the admission stage itself.

The facts were similar in Munish Dev Sharma's case (supra) and the complainants were the persons to whom the plots had been allotted by the opposite parties in this very Scheme and the possession of those plots was not delivered to them on account of the said status-quo order passed by the Hon'ble High Court. After detailed discussion it was held by the Hon'ble National Commission that the opposite parties having full knowledge that the scheme in question did not see the light of the day, still promoted the scheme to befool the public and, as such, adopted unfair method as well as deceptive practice in promoting the sale of the plots and that act is squarely covered within the meaning of unfair trade practice. It was also held that withholding of the substantial amounts of the complainants and enjoying those amounts for a long period also amounts to adoption of unfair trade practice.

Therefore, the act of the opposite parties in proceeding with the Scheme and allotting the plots to the complainant and others amounted to unfair trade practice on their part and as such, the District Forum did not commit any illegality or infirmity while allowing the complaint.

We do not find any ground to admit this appeal to be heard on merits and the same is dismissed in limine."

While impugning this order, learned Counsel for the Petitioner has submitted that this Commission cannot just decide the matter only on the basis that it is a covered case since plea of pecuniary jurisdiction of the District Forum has been raised by the Petitioner in the present Revision petition and this plea was not raised in the earlier case decided and confirmed by the Hon'ble Supreme Court. It is submitted that there is difference between rule per incurium and sub silentio. It is submitted that this case is covered under sub silentio and needs to be decided on its own merits. Reliance is placed on the findings of this Commission in "Consumer Complaint No.150 of 2014 Joginder Singh vs. Jalandhar Improvement Trust, First Appeal No.253 of 2016 Sohan Lal vs. Jalandhar improvement Trust and Consumer Complaint No.63 of 2016."

It is argued on behalf of the Complainant/Respondent that the argument of the Petitioner that the District Forum had no pecuniary jurisdiction and therefore, the order passed by it is without jurisdiction has been raised for the first time by the Petitioner before this Commission. It is argued that the issue of pecuniary jurisdiction is not merely a legal issue but it is both factual and legal. It is submitted that the Complainant in his Complaint has prayed for refund of 16,92,450/- the money which was deposited and has also claimed compensation of Rs.3 Lakhs which comes to less than Rs.20 Lakhs, when added and therefore, the District Forum had the pecuniary jurisdiction. It is argued that in their Written Statement, there is no averment that the value of the goods and the compensation claimed was more than Rs.20 Lakhs. Reliance is placed on "CC No.97 of 2016 - Ambrish Kumar Shukla & Ors. Vs. Ferrous infrastructure Pvt. Ltd. dated 7.10.2016".

I have given thought consideration to the arguments of the learned Counsel for both the parties on this point as well. From the perusal of the Complaint, it is apparent that the Complainant has claimed the following reliefs:

(a) Refund of the earnest money Rs.1,70,000/-

Installment, interest & other charges Rs.15,22,550/-

Rs.16,92,450/-

(b) Interest @ 18% per annum

(c) Compensation & Damages on account Rs.3,00,000/-

Of escalation of land price & construction cost

(d) Litigation expenses Rs.33,000/-

Under the Act, the value of the product and the compensation claimed, together gives jurisdiction to the Forum. In the present case, the Complainant had clearly stated that he had deposited the whole of the money payable for the subject plot and had alleged that he had paid sum of Rs.16,92,450/-. He has claimed compensation of amount of Rs.3 Lakhs. Together, the value is less than Rs.20 lakhs and therefore, the District Forum had the jurisdiction. In the Written statement, the Petitioner has nowhere given the value of the subject property. There is no averment that the Complainant/Respondent had not deposited the entire amount payable for the allotment of the subject plot. They have at no stage challenged the jurisdiction of the District Forum. It is apparent that the pecuniary jurisdiction is not only a legal issue but it depends on the facts averred by the parties. Since as per the averments made in the Complaint, the total value of the Complaint was less than Rs.20 Lakhs and since nowhere in the reply, the Petitioner had disclosed such facts which could suggest that the value was more than Rs.20 Lakhs, the District Forum clearly had the pecuniary jurisdiction to deal with the matter. It cannot be thus said that the District Forum and the State Commission have wrongly exercised their jurisdiction.

There are other cases relating to the same project whereby the order of the refund has been made on the ground that the Petitioner had failed to hand over the possession of the subject property. Such order was passed in Complaint Case No.81 of 2013 Munish Dev Sharma vs. Jalandhar Improvement Trust before the State Commission and the State Commission vide order dated 30.07.2014 while allowing the Complaint issued the following directions:

"i. To refund Rs.28,22,950/- along with interest at the rate of 9% per annum from the date of filing of the complaint till the date of payment;

ii. to pay Rs.2,00,000/- as compensation; and

iii. to pay Rs.5,000/- as litigation costs"

This order was impugned before this Commission in Appeal No.1215 of 2014 and after considering the contentions of the parties on merits, the Appeal was dismissed vide order dated 01.07.2015. The order of this Commission dated 01.07.2015 was challenged before the Hon'ble Supreme Court in Civil Appeal No.9294 of 2015. In this Civil Appeal No.9295 of 2015, the Hon'ble Supreme Court vide its order dated 02.11.2015 upheld the order and confirmed the order of the State Commission. It is thus a covered case. In the said case, which was confirmed by Hon'ble Supreme Court, and the issues were same, the Petitioner had raised the same contentions that they were unable to hand over the possession due to the status quo order of the High Court and this act of the Petitioner was held to be unfair trade practice and deficiency in service.

The Revision Petition has no merits and the same is dismissed. The order of the State Commission is confirmed.