Jalandhar Improvement Trust vs Satish Kumar

Deepa Sharma, Presiding Member

The present Appeal has been filed against the order dated 05.12.2017 in CC No. 533 of 2017.

The brief facts of the case are that appellant had launched a freehold residential plot scheme known as Surya Enclave Extension and in that scheme the respondent / complainant was allotted plot no. 63D vide allotment letter dated 23.12.2011.  The total cost of the plot was Rs.56,90,030/- and respondent had deposited a sum of Rs.17,56,030/-. The contention of the complainant is that despite waiting for number of years, no possession was offered to the complainant and hence being aggrieved,  he filed a complaint and claimed refund of his deposited amount along with interest and also claimed other reliefs.

Written statement had been filed by the Appellant wherein it is contended that possession was offered to the complainant in the year 2016 vide allotment letter.  It was contended that Trust was always in a position to deliver the possession but the complainant did not come forward to execute the agreement, nor had paid the remaining instalments and obtained possession.  It is submitted that complainant made a request for cancellation of his allotment of plot on 11.01.2016. It is submitted that in December, 2015 all the writ petitions in which status quo was granted by the Hon’ble High Court filed by some of the land owners were dismissed and, thereafter, public notice dated 23,03.2016 whereby more plots were carved out after the dismissal of the writ petitions. The complainant’s contention that plot allotted to him was in dispute had no merit.  It was further submitted that there was no provision of cancellation of allotment and refund of the amount under the Punjab Town Improvement ( Utilisation of Land and Allotment of Plot ) Rules, 1983.  It was further contended that entire development work including roads, sanitation, drainage and electricity had been done in the area of the plot where there was no stay.  On these contentions, it was submitted that complaint was liable to be dismissed.

Parties led their evidences before the State Commission and the State Commission heard several complaints together and passed the common order.  As regards the contention of the parties, it had relied on various orders passed by it in several complaints and held as under :

“12. Admittedly, the plot, in dispute, was allotted to the complainant, vide allotment letter dated 23.12.2011, Ex.C-3. It is also an admitted fact that towards the total price of the plot, so mentioned in the allotment letter, he has already deposited Rs.17,56,030/-. It is also admitted that the possession of the plot has not been delivered to the complainant nor the opposite party is in a position to deliver the same. As per condition No.5 of allotment letter, the complainant was to attend the office of the Chairman of the Improvement Trust within 30 days and was to take with him two witnesses and stamp paper of Rs. 500/- for getting the Agreement executed. It is not the case of the complainant that he complied with that condition. However, from the evidence produced on the record by him, it stands proved that the complainant has paid substantial amount towards the plot in question. If the complainant had not himself appeared in the office to get the Agreement executed, the opposite party could have invoked condition No.6, vide which it was authorized to cancel the allotment and to forfeit the amount already deposited by the complainant. It never invoked that clause and continued to receive the instalments from the complainant. In these circumstances, it does not lie in the mouth of the opposite party to say that the complainant never became entitled to the possession of the plot on account of the non-execution of the Agreement.

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 party. 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. That fact has not been fully denied by the opposite party. It has been alleged by the opposite party that though there was status-quo order passed by the Hon’ble Court in respect of some of the land of the scheme area but in respect of the plot of the complainant there was no stay and the opposite party was and is ready and willing to deliver the possession of the plot to him. However, the fact remains that there was status-quo with regard to the land of the scheme area and as a consequence thereof overall development of the project area, including various amenities, could not be carried out in the time bound manner as stipulated in the allotment letter. In similar case decided by this Commission (Hardev Singh v. Chairman, Improvement Trust, Jalandhar and Ors.), the complainant produced on record the letter dated 21.10.2005 (Memo No.6/44/05-4LG2/16729-90) written by the Local Government Department, Punjab to all the Improvement Trusts in the State of Punjab, as per which 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) 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 forms part of the Scheme was not with the opposite party when it 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 party 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, amounts to adoption of unfair trade practice.

It was the possession of the developed plot, which was to be given to the complainant. The next question to be determined is, whether the opposite party has made the required development at the site? It has been specifically deposed by the complainant in his affidavit Ex.C-A that no such development has been done by the opposite party. To rebut that deposition of the complainant, the opposite party proved on record the affidavit of Jatinder Singh, Executive Officer, Ex.OP/A in which he deposed that though some of the land of the scheme area was earlier under the stay order which has since been vacated by the Hon’ble High Court, vide order dated 22.12.2015 and SLP has already been dismissed. However, in the case of the plot of the complainant, there is no stay and thus the Trust had always been ready and willing to deliver the possession of the plot but it is in fact the complainant who is not coming forward to accept the offer. He further deposed that the opposite party has already carried out development work in the entire scheme by providing all the basic amenities in the whole of the scheme area and has spent a lot of finances for the development works. The funds have been made available to Water Supply and Sewerage Board for laying the water supply and sewerage lines and that the funds have also been given to PSPCL for laying down electricity poles and cables in the said scheme. The Trust has already started getting the work executed in this area. The opposite party proved on record documents Ex.OP-3 to Ex.OP-8 for corroborating that deposition of the Executive Officer. Ex.OP-3 is the Public Notice issued in the newspaper dated 20.1.2016 by the Trust informing the allottees to take possession of the plots after making balance payments and complying with the necessary formalities. Ex.OP-4 is the letter dated 21.11.2012 written by the opposite party to Punjab State Power Corporation Limited in respect of payment of ₹1,60,826/- for laying down the electric wires and the poles. Ex.OP5 is the letter dated 27.10.2014 written by the Trust to the Punjab Water Supply and Sewerage Board for making payment of ₹9.80 lakh for laying down water supply pipelines and sewerage lines. Ex.OP-6 is the list of complete works, on going works and works for which tenders were being floated. Ex.OP-7 is the Detail of Estimated Cost and Development Works done at the site. Ex.OP-8 is the detail of Estimated Cost and Development Works done at site upto 23.5.2016. Moreover, it cannot be concluded from this evidence that the development was completed by the opposite party, as required by the letter of allotment. It appears that all this exercise for making development was started by the opposite party in the year 2015 and 2016 i.e. much after the stipulated date mentioned in the allotment letter. The estimated costs of the works are mentioned in those documents and the work done is not as per those estimated costs and is much less than those estimated costs. The omission on the part of the opposite party in developing the Scheme as per its undertaking given in the allotment letter also amounts to unfair trade practice. The complainant cannot be made to wait indefinitely for allotment of the plot. The complainant has rightly stopped making further payments when he realized that no development works were being carried out at the site. Therefore, he is not a defaulter in making the payment of the instalments to the opposite party. From the above discussion, it is very much clear that only partial development has been made at the spot and the opposite party is not in a position to deliver possession of fully developed plot to the complainant and that it adopted unfair trade practice.

Similar question had arisen before this Commission in (Munish Dev Sharma v. Jalandhar Improvement Trust, Jalandhar and another) and Consumer Complaint No.82 of 2013 (Sanjay Gupta Vs. Jalandhar Improvement Trust & Another) both decided on 30.07.2014. Those complaints were filed in respect of the plots in the same Scheme and the facts were similar. The complaints were allowed and against those orders, the opposite parties preferred the appeals F.A. No.1215 of 2014 (Jalandhar Improvement Trust & Another v. Munish Dev Sharma) and F.A. No.1216 of 2014 (Jalandhar Improvement Trust & Another v. Sanjay Gupta) respectively before the Hon’ble National Commission, which were decided on 01.07.2015. The Hon’ble National Commission held as under:-

“26. 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.”

When such is the position, we conclude that the complainant on account of the adoption of unfair trade practice by the opposite party is entitled to the refund of the amount paid by him towards the price of the plot, along with interest and for the harassment having been suffered by him at the hands of the opposite party is also entitled to compensation.

Accordingly the complaint (CC No.533 of 2017) is allowed and the following directions are issued to the opposite party:-

i) to refund the sum of ₹17,56,030/-, 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 ₹1,00,000/-, as compensation; and

iii) to pay Rs.20,000/-, as costs, out of which ₹10,000/- shall be deposited by the opposite party in the ‘Consumer Legal Aid Account’ of this Commission and the remaining Rs. 10,000/- shall be paid to the complainant.”

and found that Appellant had adopted unfair trade practice and ordered refund of the  amount.

This order is impugned before me on several grounds.

During the course of arguments, learned counsel for the respondent submits that there is order of this Commission passed in First Appeal No. 803 of 2015 titled Jalandhar Improvement Trust & Anr .Vs.  Jaswinder Singh Virdi decided on 28.08.2020 in bunch of Appeals and prays that same relief be granted to the complainant.  It is further argued that all these contentions raised by the Appellant herein had been considered by this Commission in its order supra in paragraph nos. 45 to 58 and all these contentions have been dismissed and findings of the Coordinate Bench has a bearing on this Bench.  Counsel for the respondent on instructions submits that impugned order can be modified to the effect that since compensation in terms of interest has been granted @ 9% p.a., the further compensation of Rs.1.00 lakh can be refused in view of judgment passed by the Hon’ble Supreme Court in in (2020) 16 SCC 318 titled DLF Homes Panchkula Pvt. Ltd. & Anr. Vs. D.S Dhanda Etc. Etc.

Counsel for the Appellant, however, submits that there was no deficiency in service on their part.

Since the State Commission has duly considered all the evidences on record and also took into consideration earlier orders passed in respect of other plots in the same project wherein repeatedly it has been observed that unfair trade practice had been adopted by the Appellant and also in view of the findings of this Commission in FA No. 803 of 2015 supra regarding unfair trade practice on the part of the Appellant, I found no merit in the argument of the learned counsel and I , hereby, confine the order of the State Commission relating to unfair trade practice adopted by the Appellant in relation to the said project.  It is also apparent from the facts and circumstances of the case that allotment was done in the year 2011 and no offer of possession has been made till 2017.  The complainant, therefore, was made to wait for indefinite period for the possession and this certainly amounts to unfair trade practice and amounts to deficiency in service.

In case of Pioneer Urban Land and Infrastructure Ltd. Vs. Govindan Raghavan ( 2019) 5 SCC 725, the Hon’’ble Supreme Court has  held that allottee cannot be made to wait for indefinite period for the possession of its unit.

While affirming the order of the State Commission on merit on the deficiency in service,  the following directions are issued :

i.  The Appellant shall refund the entire amount of Rs.17,56,030/- along with interest @ 9% p.a. SI payable from the date of deposit till the date of actual refund.

ii. Cost of Rs.20,000/- as awarded by the State Commission shall be paid by the Appellant, out of which Rs.10,000/- shall be deposited with Consumer Legal Aid Account of the State Commission and balance shall be paid to the complainant

iii.  Because of long disposal of this appeal, cost of litigation to the tune of Rs.15,000/- is also granted to the respondent.

iv.  The entire payment shall be made within 8 weeks.

The amount deposited by the Appellant pursuant to the order dated 04.06.2018 with the State Commission shall be released to the complainant / respondent immediately on moving an application.  Respondent / complainant can file execution petition for the balance amount, if not paid within eight weeks.

With these directions, the present Appeal stands disposed of.