STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, CHANDIGARH.

1. Consumer Complaint No.825 of 2018 Date of institution : 15.10.2018 Reserved On : 07.02.2019 Date of decision : 20.02.2019 Harpreet Singh, R/o House No.3239, Sector 15-D, Chandigarh. .Complainant Versus

1. C & C Towers Ltd., Site Office: C & C Towers, ISBT-cum- Commercial Complex, opposite Verka Milk Plant, Gate No.5, Phase-6 (Sector-57) Mohali, through its Chairman/Director/ Managing Director/Manager/Authorized Representative.

2. C & C Towers Ltd., Corporate Office, Plot No.70, Sector 32, Gurgaon, Haryana, through its Chairman/Director/Managing Director/ Manager/Authorized Representative.

3. G.S. Johar, Chairman, C & C Towers Ltd., Corporate Office, Plot No.70, Sector 32, Gurgaon, Haryana.

4. Charan Vir Singh Sehgal, Chief General Manager, C & C Towers Ltd., Corporate Office, Plot No.70, Sector 32, Gurgaon, Haryana. .Opposite Parties

2. Consumer Complaint No.831 of 2018 Date of institution : 17.10.2018 Reserved On : 07.02.2019 Date of decision : 20.02.2019

1. Pardeep Kumar Sharma son of Sh. Madan Mohan Sharma;

2. Promila Sharma wife of Sh. Pardeep Kumar Sharma; Both residents of H.I.G. 1-A, Housing Board Colony, Opposite Bus Stand Kalka, Haryana. .Complainants Versus

1. C & C Towers Ltd., through its Chairman, having its Head Office at Plot No.70, Sector 32, Gurgaon-122001, Haryana. E-mail: gsj@candcinfrastructure.com Consumer Complaint No.825 of 2018

2. C & C Towers Ltd., through its CGM, having Site Office at ISBT- cum-Commercial Complex, opposite Verka Milk Plant, Phase-VI, Mohali-160055, Punjab. Ph. No.0172-4242300 E-mail: mail@mohalijunction.com

3. C.V.S. Sehgal, CGM-Commercial, Mohali, C & C Towers Limited, ISBT-cum-Commercial Complex, opposite Verka Milk Plant, Phase VI, Mohali-160055, Punjab.

4. Greater Mohali Area Development Authority, SAS Nagar, Mohali, Tehsil and District SAS Nagar, Mohali, through its Estate Officer, SAS Nagar, Mohali. E-mail:lcpuda@yahoo.com .Opposite Parties

3. Consumer Complaint No.852 of 2018 Date of institution : 29.10.2018 Reserved On : 07.02.2019 Date of decision : 20.02.2019 Mansimranjit Singh Randhawa S/o Sh. Harbans Singh, Resident of House No.2022, Sector 68, S.A.S. Nagar (Mohali). .Complainant Versus

1. The C & C Towers Limited, through its Chairman, opp. Verka Milk Plant, Phase-VI, S.A.S. Nagar (Mohali).

2. Gurjit Singh Johar, the Chairman of The C & C Towers Limited, opp. Verka Milk Plant, Phase-VI, S.A.S. Nagar (Mohali). IInd Address: C&C Towers Limited, Plot No.70, Sector 32, Gurgaon, Haryana. .Opposite Parties Consumer Complaints under Section 17 of the Consumer Protection Act, 1986. Quorum:- Honble Mr. Justice Paramjeet Singh Dhaliwal, President Mrs. Kiran Sibal, Member. Present (CC No.825 of 2018):- For the complainant : Sh. Sandeep Bhardwaj, Advocate For the opposite parties: Sh. Rohit Mittal, Advocate. Consumer Complaint No.825 of 2018 JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT : This order will dispose of above mentioned three (3) Consumer Complaints filed under Section 17 of the Consumer Protection Act, 1986 (in short, the Act), as the facts and the questions of law involved in all these complaints are the same and all the complaints have been filed against the same opposite parties by the different complainant(s). The facts are taken from Consumer Complaint No.825 of 2018. Consumer Complaint No.825 of 2018 The complainant has filed this complaint, under Section 17 of the Act, against the opposite parties, seeking following directions to them:

i) to refund the amount of 23,07,024/-, along with interest at the rate of 12% per annum from the respective dates of deposit till realization; ii) to pay compensation of 2,00,000/-, on account of mental agony and harassment suffered by the complainant; and iii) to pay 1,00,000/- towards litigation expenses. Facts of the Complaint

2. Brief facts, as set out in the complaint, are that the opposite parties made a number of assurances through various newspapers, marketing e-mails and telemarketing with regard to launching of their integrated project under the name and style of C&C Towers and the tower namely C&C Capital, having salient features. The complainant is not in the business of sale and purchase of the properties. He is Consumer Complaint No.825 of 2018 doing the pharmaceutical business in rented premises and has no office space to run his work. In order to get an office space to run his business, with a view to earn his livelihood by means of self- employment, he approached the opposite parties; who assured him that they are in possession of all the permissions and approvals to hand over the possession of the unit in time. Accordingly, the complainant submitted an Application Form to them and paid a sum of 1,00,000/- vide receipt dated 15.04.2013. Along with the Application Form, they also received declaration from him to the effect that I/we further confirm that the property is not being leased by me/us for any unlawful use or purpose or otherwise with an intention to support or assist in any kind of price manipulation or unfair trade practice as to the real estate sector. The said undertaking shows that the unit sought to be purchased was not for price manipulation or unfair trade practice, but it was for self use of the complainant. Thereafter, the opposite parties issued letter of allotment dated 07.08.2013, vide which unit No.41, 5th Floor, Tower-B, measuring 423 sq.ft. (approx.) was allotted to him. The total BSP of the unit was 29,61,000/- and after adding other charges, such as licence fee etc., the total cost thereof was fixed as 31,53,465/-. The complainant deposited a total sum of 23,07,024/- with the opposite parties towards the price of the unit. As per Clause 1.3.3 of the allotment letter, the opposite parties agreed to complete the construction and to deliver possession of the unit within a period of 60 months from the date of compliance i.e. 16.12.2009 as well as after obtaining the requisite approvals. However, no Consumer Complaint No.825 of 2018 development was started at the site and the work was still abandoned. The complainant came to know through newspaper reports dated 31.03.2013, 20.04.2015 and 24.06.2015 that a notice had been served upon opposite parties No.1 & 2 by GMADA regarding cancellation of agreement with them, due to non-completion of construction. The opposite parties also wrote letter dated 07.05.2015 to one of the similar allottees, informing that the Bankers, GMADA and other stakeholders were committed to extend their financial support and that the construction would be started by July, 2015 and the project would be completed by mid-2017. GMADA also supplied information under RTI Act to one of the allottees, vide letter dated 29.09.2016, informing that neither any licence had been granted to the opposite parties, nor any agreement was executed by them with the Government. The opposite parties, vide letter dated 24.12.2015 written to the allottees, furnished vague reason for delay in completion of the project and mentioned about efforts being made to restart the project. Another allottee also sought information under RTI Act from GMADA; who, vide letter dated 11.03.2016, informed that proceedings had been initiated by GMADA for cancellation of agreement of the opposite parties due to non- completion of the project in time. It was also informed that the reason for delay in completing the project was disclosed by the opposite parties to be non-availability of funds with them. The opposite parties received an amount of Rs.23,07,024/- from complainant, but they did not reach the first floor slab by raising construction, from which first installment was to be commenced and, as such, the opposite parties Consumer Complaint No.825 of 2018 retained the hard earned money of the complainant, without any basis. No requisite permissions and approvals were obtained by opposite parties on the date of receiving the registration amount from complainant. Thus, they also violated various provisions of Punjab Apartment and Property Regulation Act, 1995 (in short, PAPRA), which they were bound to comply with. Due to deficiency in service on the part of the opposite parties, the complainant suffered mental agony and harassment. Hence, the present complaint. Defence of the Opposite Parties

3. Upon notice, the opposite parties appeared and filed reply to the complaint, raising preliminary objections that this Commission has no pecuniary jurisdiction to entertain and decide the complaint, as the complainants have sought refund of 23,07,024/-, along with interest and compensation of 2,00,000/-, besides cost of litigation of 1,00,000/-. The complainant does not fall under the definition of consumer, as defined in the Act, as he purchased the unit, in question, for commercial purpose and not for self-employment. In the application for allotment, in the column of profession, the complainant stated that he is a doctor. Moreover, the unit booked by the complainant is a commercial unit, situated in the commercial project, having only commercial office spaces and retail spaces. In the Registration Certificate dated 22.04.2010 and renewal thereof dated 24.08.2015, address of business of the complainant has been shown as F-405, Industrial Area, Focal Point, Phase VIII-B, Mohali, District S.A.S. Nagar and the rent deed dated 01.01.2010 is only for 11 Consumer Complaint No.825 of 2018 months. Thus, it is apparent that the complainant is owner of the said plot and averments regarding tenancy are baseless, in the absence of any rent deed. Moreover, there is no evidence whether any payment has been made to his own brother or the same was just a sham agreement. Original documents regarding ownership, involvement of brother of the complainant, real income sources and properties owned by the complainant are required to be called upon to decide the complaint in a just manner. Further, there is no probability that a pharmaceutical business may be set up in a space of 423 sq.ft. As per Clause 1.15 of the allotment letter, due to mis-representation/ concealment on the part of the complainant, the entire amount deposited by him is liable to be forfeited. The complaint is not maintainable before this Commission, in view of Arbitration Clause 1.25 in the Letter of Allotment. Clause 1.2.1 thereof states that timely payments were the essence of the contract, but the complainant failed to make payments in a timely manner. As per Clause 1.2.2 of the Letter of Allotment, a licensee is entitled to request for cancellation of the allotment, whereupon the licensor (opposite parties) has the option to accept such request and to refund 50% of the amount paid, without any interest. It was further pleaded that there was no mandatory time for completion of the construction, nor there was any binding obligation upon the opposite parties to complete the space within 48 months, but the same was likely to be completed within that period, that too subject to force majeure circumstances mentioned in Clause 1.3.3 of the letter of allotment. The project, in question, is being developed by the Consumer Complaint No.825 of 2018 opposite parties on a piece of land owned by GMADA under Public Private Partnership (PPP) mode in Design, Build, Operate, Transfer and Finance (DBOTF) format. This project was allotted to the opposite parties by way of a transparent tender allotment process through bidding, vide Notice of Award dated 06.02.2009. A Concession Agreement for developing said project was duly executed on 15.04.2009 amongst C & C Towers Ltd.; GMADA; State Government of Punjab, through the State Transport Department; and the Punjab Infrastructure and Development Board (PIDB). As per the terms of the said agreement, the conditions with regard to obtaining of requisite approvals/ permissions/NOCs were to be completed and thereafter the land, in question, was leased out to the opposite parties for 90 years with effect from 15.12.2009. The opposite parties immediately got their layout plans/designs approved from GMADA, vide letter dated 27.01.2010, and thereafter the construction was started and a substantial part of the project has been developed. However, in the month of January/February, the Deputy Chief Minister, Punjab directed certain changes in the approved designs and plans, such as increasing number of basements from 2 to 3 in Towers B & C. Thereafter, up till 04.04.2011, when the revised plans/designs were finally approved, various revised plans/designs were prepared for approval. In this regard, a letter dated 29.12.2010 was issued by GMADA to the opposite parties. The opposite parties had to halt the construction in the month of January, 2010 and necessary changes were made multiple times. Thus, the delay of one year and three months occurred Consumer Complaint No.825 of 2018 owing to no fault of the opposite parties. It was further pleaded that owing to heavy rains in the intervening night and early morning of 6/7.09.2011, some constructed portion of Tower-C collapsed, due to no fault of the opposite parties and the same had to be subsequently re-constructed. This fact is evident from the information provided by the Indian Meteorological Department, vide letter dated 02.07.2012. It was further pleaded that in June, 2012, the Honble Punjab and Haryana High Court directed stoppage of mining in the State of Punjab, including Ropar and Mohali Districts; which resulted in severe shortage and non-availability or raw materials, as a result of which progress of the project was severally impacted. The mining activity could only commence after December, 2012. Despite all these force majeure circumstances, the opposite parties completed the construction and development of a state of art Air-Conditioned ISBT, Mohali; which was inaugurated by the then Deputy Chief Minister, Punjab on 16.11.2016. The opposite parties have neither diverted any funds elsewhere nor they had any intention of not completing the construction and development of the project. Inauguration of the Bus Stand by the Deputy Chief Minister shows that the opposite parties have all the requisite approvals/permissions etc. to develop the project, in question. It was further pleaded that real estate growth underwent a downward spiral after the US Mortgage Crisis of 2011-12, which resulted in stark reduction of investment in the present project. On account of the fact that the said ISBT is non-operational due to omissions on the part of the State Government, the opposite parties Consumer Complaint No.825 of 2018 are earning zero revenue from the said ISBT and rather they are bearing exorbitant maintenance expenses on the same. Thus, there is no deficiency in service on the part of the opposite parties. Intricate questions of law and facts are involved in the present case and this Commission has no jurisdiction to entertain and decide the same, rather the same can be properly decided only under the provisions of the Specific Relief Act and Indian Contract Act. It was further pleaded that opposite parties No.3 & 4 have been wrongly arrayed as parties in the complaint, as no specific role has been attributed to them. The present dispute and grievance of the complainant is only against opposite parties No.1 & 2-Company, which is a distinct juristic person in the eyes of law, having capacity to sue as well as to be sued. Thus, the complaint is liable to be dismissed against opposite parties No.3 &

4. It was further pleaded that the opposite parties are not bound by the provisions of PAPRA, as the project, in question, is based on a Public Private Partnership Mode (PPP Mode) granted to the opposite parties on a leasehold basis. On merits, similar pleas, as raised in preliminary objections, were reiterated. All other allegations levelled in the complaint were denied and it was prayed that the complaint be dismissed with costs. Evidence of the Parties

4. To prove his claim, the complainant, along with the complaint, produced his own affidavit, along with documents Ex.C-1 to Ex.C-14 and Mark-A to Mark-C. Consumer Complaint No.825 of 2018

5. The opposite parties, along with their reply, produced affidavit of Sh. Arunav Pankaj, Authorized Representative, along with documents Ex.OP-1 to Ex.OP-17 and Mark OP-A and Mark OP-B. Contentions of the Parties

6. We have heard learned counsel for the parties and have gone through the record carefully.

7. Learned counsel for the complainant has vehemently contended that the complainant is not in the business of sale and purchase of the properties. He purchased the space, in question, just for earning his livelihood by way of self-employment, as he is doing his pharmaceutical business in rented accommodation. Therefore, the complainant duly falls under the definition of consumer. Moreover, the opposite parties failed to prove that the unit, in question, was purchased by him for generating any profits. It was further contended that along with the application for allotment of the unit, in question, an undertaking was duly taken from the complainant, to the effect that the unit was not purchased with an intention to support or assist in any kind of price manipulation or unfair trade practice as to the real estate sector. It was further contended that as per clause 1.3.3 of allotment letter, Ex.C-3, the construction of the unit was to be completed within

60 months from the date of start of the lease period, after obtaining necessary approvals and sanctions, subject to force majeure circumstances and reasons beyond the control of the Concessionaire/Licensor. The lease started on 16.12.2009. The opposite parties received a sum of 23,07,024/- from the complainant Consumer Complaint No.825 of 2018 towards the price of the unit, in question, but they failed to complete the project, in question, within the said stipulated period, without disclosing any cogent reasons. No development was carried on at the site. The complainant came to know from the newspapers that the agreement between the opposite parties and GMADA has been cancelled and apprehending safety of his financial interest, he sought refund of the amount deposited from the opposite parties. The opposite parties committed deficiency in service and unfair trade practice, by not honouring their commitments, as per the allotment letter. Accordingly, it has been contended that the complaint be allowed and all the reliefs, as prayed for in the complaint, be awarded in favour of the complainant.

8. Per contra, learned counsel for the opposite parties has contended that the commercial space, in question, was purchased by the complainant for commercial purpose for earning profits. The complainant failed to prove that he purchased the said unit for earning his livelihood by way of self-employment. Thus, the complaint is liable to be dismissed on this score alone. It was further contended that the complainant has not made the payments as per the Payment Schedule regularly and has only paid a sum of `23,07,024/-. The construction has been raised, as per the sanctioned building plans and in compliance of the Municipal laws, regulating the construction. The delay in construction/completion of the project was due to the delay on the part of GMADA to approve the drawings and designs of the project. It is further contended that in June, 2012, there was severe shortage of Consumer Complaint No.825 of 2018 raw material due to ban imposed by the Honble Punjab and Haryana High Court, as a result of which progress of the project was severally impacted. Despite all these force majeure circumstances, the opposite parties completed the construction and development of the Air- Conditioned ISBT, Mohali; which was inaugurated by Deputy Chief Minister, Punjab on 16.11.2016. Inauguration of the Bus Stand by the Deputy Chief Minister shows that the opposite parties have all the requisite approvals/permissions etc. to develop the project, in question. Thus, there is no deficiency in service on the part of the opposite parties and the complaint is liable to be dismissed. Consideration of Contentions

9. We have given our thoughtful consideration to the respective contentions raised by the learned counsel for the parties.

10. So far as the contention of the learned counsel for the opposite parties that the unit, in question, is a commercial space and the complainant had purchased the same with the sole purpose of earning profits, is concerned, the same cannot be accepted on the face of it; specifically in view of the fact that it is the categorical averment of the complainant that he has purchased the commercial space for earning his livelihood, by way of self-employment, as he is doing the business of pharmaceutical. No cogent evidence has been led by the opposite parties to dislodge the said averment. Merely purchasing a space, which is commercial in nature, will not always lead to the fact that it is purchased only for gains. When a person takes the property for self-employment to earn his livelihood, then certainly such a Consumer Complaint No.825 of 2018 property will not come under the definition of commercial. The true spirit behind the purchase of the unit, in question, is to be seen. The opposite parties failed to produce any evidence on record to rebut this fact. Besides this, there is also no evidence from their side to prove that the complainant purchased the space, in question, for commercial purpose by employing many persons. The bona fide of the complainant to use the space, in question, for the purpose of earning his livelihood by way of self-employment has been duly mentioned in the complaint and no documentary evidence to rebut the same has been produced by the opposite parties on record. The fact remains that opposite parties miserably failed to prove that the complainant purchased the unit, in question, for commercial purpose to earn profits therefrom. Honble National Commission in M/s IREO FIVERIVER PVT. LTD. v. SURINDER KUMAR SINGLA & OTHERS First Appeal No.1358 of 2016, decided on 29.11.2016, while relying upon its earlier decision in KAVITA AHUJA & OTHERS v. SHIPRA ESTATE LTD. & JAI KRISHNA ESTATE DEVELOPERS PVT. LTD. & OTHERS Consumer Case No.137 of 2010, decided on 12.02.2015 held the complainants as consumers, observing that the appellant failed to show any cogent evidence, which may indicate that the respondents/complainants or any of them has been indulging in sale purchase of the properties or that the complainants or any one of them had booked the subject plots in the development project undertaken by the appellant with the intention to sell the plot on subsequent date for earning profit. In the case in hand also, as already discussed above, there is no evidence Consumer Complaint No.825 of 2018 led by the opposite parties to prove that the complainant indulged in sale/purchase of properties or that he has purchased the unit, in question, for further sale or for earning profits. In view of the law laid down by the Honble National Commission in the above said case, the objection of the opposite parties is rejected, holding the complainant as consumer.

11. So far as the objection of the opposite parties regarding pecuniary jurisdiction of this Commission is concerned, it is relevant to mention that the total price of the unit, in question, is more than 20,00,000/- and even the relief claimed in the complaint is more than 20,00,000/- and, thus, the matter in hand squarely falls within the pecuniary jurisdiction of this Commission, in view of the ratio of the law laid down in I (2017) CPJ 1 (NC) (AMBRISH KUMAR SHUKLA & 21 ORS. v. FERROUS INFRASTRUCTURE PVT. LTD) and accordingly the objection of the opposite parties in this regard is also rejected. The authorities relied upon by the learned counsel for the opposite parties in the reply are not applicable.

12. The further objection of the opposite parties is that complaint is not maintainable before this Commission, in view of Arbitration Clause 1.25 in the Letter of Allotment. In this respect, it is relevant to mention here that the Larger Bench of the Honble National Commission, vide order dated 13.07.2017, passed in Consumer Complaint No.701 of 2015 titled as Aftab Singh v. EMAAR MGF Land Limited & Anr., held that an Arbitration Clause in the afore-stated kind of Agreements between the Complainants and the Builder cannot Consumer Complaint No.825 of 2018 circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act, 1996. The Civil Appeal No.(s) 23512-23513 of 2017 (M/s EMAAR MGF Land Limited & Anr. Vs. Aftab Singh) filed against the said order of the Honble National Commission has also been dismissed by the Apex Court, vide order dated 13.02.2018. Review Petition (C) Nos. 2629-2630 of 2018 in Civil Appeal Nos. 23512-23513 of 2017 filed against the above said order dated 13.02.2018 was also dismissed by the Honble Supreme Court, vide order dated 10.12.2018. Consequently, the existence of an Arbitration Clause in the allotment letter is not a bar to resolve this dispute by this Commission. Accordingly, the said objection of the opposite parties is also rejected.

13. Now, coming to the merits of the case, admittedly, vide letter of allotment dated 07.08.2013, Ex.C-3, the complainant was allotted unit No.41, Tower B, 5th Floor, measuring 423 sq.ft.(approximately) in the project of the opposite parties. As per version of the complainant, the total cost of the unit, in question, was 31,53,465/-, against which he deposited a total sum of 23,07,024/- with the opposite parties, as per Statements of Account, Ex.C-4 (colly.). As per clause 1.3.3 of the allotment letter, Ex.C-3, the construction of the unit was likely to be completed within 60 months from compliance date i.e. 16.12.2009, after obtaining all the necessary approvals and sanctions, subject to force majeure circumstances. Therefore, the construction of the unit, in question, was to be completed and possession was to be delivered upto 16.12.2014. The Consumer Complaint No.825 of 2018 complaint has been filed on 15.10.2018 i.e. after about four years therefrom. However, the opposite parties failed to complete the construction of project/unit within the stipulated period, without any sufficient cause, so as to deliver possession of the unit, in question, to the complainant.

14. No doubt, in the present case, the opposite parties have produced a copy of Concession Agreement Ex.OP-4 for Development of Bus Terminal-Cum-Commercial Complex at Mohali on design-built- operate-transfer (DBOT) basis, executed amongst Greater Mohali Area Development Authority, M/s C&C Towers Limited, State Transport, Government of Punjab and Punjab Infrastructure Development Board; but the fact remains that the complainant purchased the unit/space, in question, from the opposite parties and has made the payment substantial amount to them. It is the inter-se arrangement/agreement between the opposite parties and other departments of the Government of Punjab, but the complainant cannot be made to suffer for the same. Even otherwise the opposite parties have failed to prove that the terms and conditions of the Concession Agreement have been complied with by them. Be that as it may, the fact remains that more than four years have already lapsed after expiry of stipulated period for delivery of possession, but the project has not been completed in all respects. The delay in completing the construction has also been duly admitted by the opposite parties themselves in their reply. Once the complainant was satisfied that there was no likelihood of the completion of the project in question, therefore, he was well within his Consumer Complaint No.825 of 2018 rights to withhold the payment of further instalments towards the price of the space/unit, as there is no fun in first depositing the amount and thereafter to claim refund of the same.

15. It is also relevant to mention that the opposite parties wrote letter dated 12.07.2017, Ex.C-10, to other allottees namely Vijay Sharma and Rajinder Sharma, vide which they agreed to pay interest at the rate of 8.8% per annum on their deposited amount from the date of receipt of 35% of the BSP to 31.08.2016, which was to be paid in four equated quarterly instalments, commencing from October- December, 2017. They were asked to sign an undertaking, giving their concurrence to extend the construction timeline by three years commencing from September, 2016 to August, 2019, during which they would not be eligible to claim payment of interest damages. This letter clearly proves that the opposite parties failed to complete the project within the stipulated time frame and they further sought extension for completing the construction timeline from September, 2016 to August, 2019. Still further, the opposite parties pleaded in their reply that the delay in the project was due to various variations in the layout and designs of the project effected by the State Government. This reason is not a force majeure circumstance and the same can well be foreseen by the opposite parties before commencing the project and receiving amounts from different purchasers, including the complainant. No doubt, environmental clearance was granted to the opposite parties, vide letter dated 29.10.2009, Ex.OP-12; NOC from Punjab Pollution Control Board was granted, vide letter dated Consumer Complaint No.825 of 2018 09.04.2010, Ex.OP-13; NOC from PSPCL was granted, vide letter dated 03.11.2016, Ex.OP-15, but the fact remains that the same were granted subject to compliance of certain terms and conditions. However, the opposite parties have not produced on record any evidence to prove that they have complied with those terms and conditions, in letter and spirit. The opposite parties also produced on record Partial Occupation Certificate dated 15.12.2016, Ex.OP-17, only for Block-A, Basement-1, Basement-2, Lower Ground Floor, Ground Floor & First Floor, whereas the unit of the complainant is situated on 5th Floor of Tower-B. However, in the absence of Completion Certificate as envisaged under Section 14 of Punjab Apartment and Property Regulation Act, 1995 (in short, PAPRA), this Partial Completion Certificate is not sufficient to prove that the project is fully complete. It is also relevant to mention that one another allottee sought information under RTI Act from GMADA. GMADA, vide letter dated 29.09.2016, Ex.C-7, supplied the requisite information to her, informing that no licence of construction was granted to the opposite parties, nor any agreement was entered into by the opposite parties with the Government. Still further, as per letter dated 11.03.2016, Ex.C-9, issued by GMADA, the process for cancelling the agreement of the opposite parties had already been initiated, due to non- completion of the project within the stipulated period. It is also mentioned therein that the reason for delay in completing the project was disclosed by the opposite parties to be paucity of funds. From the reply filed by opposite party No.4 in Consumer Complaint No.831 of Consumer Complaint No.825 of 2018 2018 (given in the later part of the order) also, it stands proved that the opposite parties failed to complete the project within the stipulated period. They have neither completed the work of construction of the project, nor have submitted the copies of any Lease Deeds to GMADA. The opposite parties also defaulted in making the payment of upfront money, annual concession money, interest, causing consequential damages to GMADA; as a result of which the Chief Administrator, GMADA had issued termination notice to opposite party No.1 on 04.04.2016, but it sought extension of time in completing the project, which is still under consideration of the authorities. To rebut the letter, Ex.C-7, discussed above, the opposite parties have produced on record letter dated 12.06.2018, Ex.OP-16, issued by GMADA, in which clarification was given that no licence was granted by GAMDA to the opposite parties and on instructions of Punjab Government, PIDB issued Notice of Award in favour of the Company, allowing it to raise construction in the project, as per approved designs by the GMADA only. It was also stated therein that copy of Notice of Award was attached with the said letter, but no such copy has been attached therewith, from which the contents of that letter could be proved. In such circumstances, the complainant cannot be made to wait for an indefinite period of time for the completion of the project and delivery of the space/unit in question. This certainly amounts to deficiency in service and adoption of unfair trade practice on the part of the opposite parties. Consumer Complaint No.825 of 2018

16. The opposite parties further contended that opposite parties No.3 & 4 have been wrongly arrayed, as parties as no specific role has been attributed to them and, therefore, the complaint is liable to be dismissed against them. In this respect, it is relevant to mention that opposite parties No.3 & 4 are the Chairman/Chief General Manager of opposite parties No.1 & 2-Company and are responsible for the day to day affairs of the said Company. Thus, it cannot be said that they have been wrongly impleaded in the complaint.

17. Keeping in view the above circumstances, we hold that the opposite parties have failed to comply with the provisions of the PAPRA. As per Section 3 (General Liabilities of Promoter) of the PAPRA, the opposite parties were required to make full and true disclosure of the nature of their title to the land, on which such project is developed or such building is constructed or is to be constructed, 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. They were also required to give inspection on seven days notice or demand of the layout of the colony and plan of development works to be executed in a project, as approved by the prescribed authority in the case of a project. However, the opposite parties failed to comply with Section 3 of the PAPRA.

18. As per Section 5 (Development of land into Colony) of PAPRA, the opposite parties were liable to obtain permission from the competent authority for developing the project, but they failed to Consumer Complaint No.825 of 2018 produce on record any such valid permission. So, they also violated Section 5 of PAPRA.

19. As per Section 9 of PAPRA, every builder is required to maintain a separate account in a scheduled Bank, for depositing the amount deposited by the buyers, who intend to purchase the plots/flats/commercial space/unit, but no evidence has been led on the record by the opposite parties to prove that any account has been maintained by them in this respect. As such, the opposite parties also violated Section 9 of the PAPRA.

20. The opposite parties had been collecting huge amounts from the buyers for the development of the project. The opposite parties are not to play the game at the cost of others. When they insist upon the performance of the promise by the consumers, they are to be bound by the reciprocal promises of performing their part of the agreement. The opposite parties have failed to comply with the aforementioned provisions of PAPRA, while launching and promising to develop their project. Thus, the delay in not delivering the possession of unit, in question, within the agreed period amounts to deficiency in service on the part of the opposite parties, for which the complainant is to be suitably compensated.

21. The Act came into being in the year 1986. It is the benevolent piece of legislation to protect the consumers from exploitation. The spirit of the benevolent legislation cannot be overlooked and its object is not to be frustrated. The complainant has made payment of substantial amount to the opposite parties, with the Consumer Complaint No.825 of 2018 hope to get the possession of the unit in a reasonable period. The circumstances clearly show that the opposite parties made false statement of facts about the goods and services i.e. allotment of unit and delivery of possession in a stipulated period. The act and conduct of the opposite parties is a clear case of misrepresentation and deception, which resulted in the injury and loss of opportunity to the complainant. Had the complainant not invested his money with the opposite parties, he would have invested the same elsewhere. There is escalation in the price of construction also. The builder is under obligation to deliver the possession of the plot/unit/flat/space within a reasonable period. The complainant cannot be made to wait indefinitely to get possession of the unit booked. From the facts and evidence brought on the record of the complaint, it is clearly made out that the opposite parties i.e. builders knew from the very beginning that they had not complied with the provisions of the PAPRA and Rules and would not be able to deliver the possession within the stipulated period, thus by misrepresentation induced the complainant to book the unit, due to which the complainant has suffered mental agony and harassment. It is the settled principle of law that compensation should be commensurate with the loss suffered and it should be just, fair and reasonable and not arbitrary. The builder is bound to compensate for the loss and injury suffered by the complainant for failure to deliver the possession, so has been held in catena of judgments by the Honble Supreme Court and the Honble National Commission. To get the relief, the complainant has to wage a long drawn and tedious legal Consumer Complaint No.825 of 2018 battle. As such, the complainant was at loss of opportunities. In these circumstances, the complainant is entitled to the refund of the amount deposited by him, along with interest and compensation.

22. As per Rule 17 of the Punjab Apartment and Property Regulation Rules, 1995, framed under Section 45 of the PAPRA, it has been provided 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.

23. In view of our above discussion, the complaint is partly allowed and the following directions are issued to the opposite parties:

i) to refund 23,07,024/- deposited by the complainant, along with interest at the rate of 12% per annum from the respective dates of deposit till realization, as per Rule 17 of PAPRA; and ii) to pay 24,000/-, as compensation for the mental agony and harassment suffered by the complainant, including litigation expenses.

24. The compliance of the order shall be made by the opposite parties within a period of 30 days of the receipt of certified copy of the order. Consumer Complaint No.831 of 2018 Misc. Application No.2415 of 2018 (Joint Complaint)

25. The complainants, being joint owners of the unit, in question, the application is allowed. Consumer Complaint No.825 of 2018 Main Case

26. Similarly, in this complaint, the complainants are husband and wife and they have two children namely Kaiffy Bhardwaj (daughter) aged 22 years and Mridul Bhardwaj (son) aged 11 years. Complainant No.2 is a Fashion Designer by profession and complainant No.1 is working as Machine Operator in Federal Mogul and in order to settle their children, they planned to earn their own livelihood, by opening a boutique to be run by complainant No.2, who was to be helped by complainant No.1. As they did not have any office space in and around Tricity, so they planned to purchase a unit in the above said project of opposite parties No.1 to 3, in order to earn their livelihood by way of self-employment. Accordingly, they were allotted Unit No.50, Tower-C, Floor 4th, measuring 311 sq.ft. (approx.), vide allotment letter dated 27.09.2012, Ex.C-2. The total price of the said unit was fixed as 24,88,000/-, against which the complainants paid a total sum of 8,71,000/- to them, vide receipt, Ex.C-1. However, opposite parties No.1 to 3 failed to complete the project and to deliver possession of the unit to the complainants within the stipulated period. As the lifelong earnings of the complainants were lying bound with these opposite parties, who were not bothering to complete the project and to deliver possession of the unit, in question, so due to mental tension complainant No.2 suffered clots in her brain and she was hospitalized, as per medical record Ex.C-4. Similar other averments, as made in Consumer Complaint No.825 of 2018, have been made in this complaint. The complainants sought refund of the deposited Consumer Complaint No.825 of 2018 amount, along with interest and compensation. Opposite parties No.1 to 3 filed reply on the similar of their reply, as given in Consumer Complaint No.825 of 2018. Similar type of documents have been produced by the parties and similar arguments have been addressed.

27. Opposite party No.4-GMADA filed separate reply to the complaint, stating that the complaint relates to inter-se dispute between the complainants and opposite parties No.1 to 3 and opposite party No.4 has been unnecessarily dragged into litigation, as there is no deficiency in service on its part. The complainants are not consumers of opposite party No.4, as no amount was ever charged by it from them. It was pleaded that keeping in view the requirement of bus-traffic and to improve and increase the overall infrastructure demand of the upcoming S.A.S. Nagar City, GMADA had decided to develop a new Integrated Bus Terminal-cum-Commercial Complex at S.A.S. Nagar through Private Participation on Design, Build, Operate and Transfer (DBOT) basis and accordingly, under the aegis of Punjab Infrastructure Development Board, suitable concessionaire (opposite party No.1) was selected through competitive bidding after issuing a Request for Proposal (REP) document, inviting bids/proposals from prospective bidders to implement the said project. In the transparent competitive bidding process, M/s C & C Towers Ltd. (opposite party No.1) was selected for development, operation and maintenance of the said project and accordingly, an agreement was executed between GMADA and M/s C&C Towers Ltd. (opposite party No.1) on 15.04.2009 to this effect. In pursuance to the said agreement, Consumer Complaint No.825 of 2018 possession of 7.02 acres of land of GMADA situated at junction of NH-

21 and interior roads of S.A.S. Nagar City was handed over to M/s C & C Towers Ltd. for the development of the Bus Terminal-cum- Commercial Complex. The said site was given to opposite party No.1 on lease basis for a period of 99 years from the date of agreement

i.e.15.04.2009. As per the mandate of the agreement, the building of the Bus Terminal was to be completed within 18 months from the compliance date and Commercial Complex was to be completed within

30 months therefrom. However, opposite party No.1 has developed only the building of Tower-A, comprising of Bus Terminal and part of commercial area on upper floor. The work for construction of Tower-B & C comprising of Commercial Complex has been completed only upto basement level and remaining work is still to be completed. As per Clause 8 (a) of the agreement dated 15.04.2009, M/s C & C Towers Ltd. was permitted only to sub-lease the sites in the Commercial Complex and then to submit the signed Lease Deeds to GMADA for information, as per terms and conditions given in Para No.12 of the reply. The Sub-lessee shall pay the lease fee under the Lease Deeds directly to M/s C & C Towers Ltd. However, it has neither completed the work of construction of the project, nor has submitted the copies of any Lease Deeds. It also defaulted in the payment of upfront money, annual concession money, interest, causing consequential damages to GMADA; as a result of which the Chief Administrator, GMADA had issued termination notice to opposite party No.1 No.04.04.2016, but it sought extension of time in completing the project, which is still under Consumer Complaint No.825 of 2018 consideration of the authorities. On merits, all other allegations levelled in the complaint were denied and it was prayed that the complaint against opposite party No.4 may be dismissed with costs.

28. We are of the view that there is no deficiency in service on the part of opposite party No.4, as there is no privity of contract between it and the complainants. The dispute involved in the complaint is only between the complainants opposite parties No.1 to 3 and, thus, the complaint against opposite party No.4 is liable to be dismissed.

29. In view of the reasons and discussion held in Consumer Complaint No.825 of 2018, this complaint is partly allowed against opposite parties No.1 to 3 and the same is dismissed against opposite party No.4. Following directions are issued to opposite parties No.1 to

i) to refund 8,71,000/- deposited by the complainants, along with interest at the rate of 12% per annum from the respective dates of deposit till realization, as per Rule 17 of PAPRA; and ii) to pay 9,000/-, as compensation for the mental agony and harassment suffered by the complainants, including litigation expenses.

30. The compliance of the order shall be made by opposite parties No.1 to 3 within a period of 30 days of the receipt of certified copy of the order. Consumer Complaint No.852 of 2018

31. Similarly, in this complaint, the complainant is well educated and unemployed person. He booked the unit, in question, Consumer Complaint No.825 of 2018 with the opposite parties in order to start small business, like stationery/magazine/novel shop or shop of soft drink etc. for earning his livelihood by way of self-employment. He was allotted Unit No.2, Tower-C, Floor 5th, measuring 658 sq.ft. (approx.) at the rate of 6,500/- per sq.ft. in the project of the opposite parties, vide allotment letter dated 15.02.2012, Ex.C-4. The complainant paid the total amount of 14,96,950/- to the opposite parties towards the price of the unit, as per receipts Ex.C-1 and Ex.C-3. As per Clause 1.3.3 of the allotment letter, the opposite parties agreed to complete the construction and to deliver possession of the unit within a period of 48 months from the date of compliance i.e. 16.12.2009 as well as after obtaining the requisite approvals. However, they failed to complete the development works and to deliver possession of the unit, in question, to the complainant within the stipulated period. Similar other averments, as made in Consumer Complaint No.825 of 2018, have been made in this complaint. The complainant prayed for issuance of directions to the opposite parties to deliver possession of the unit, in question, or in the alternative to refund the amount deposited by him, along with interest and compensation. The opposite parties filed reply on the similar of their reply, as given in Consumer Complaint No.825 of 2018. Similar type of documents have been produced by the parties and similar arguments have been addressed.

32. As already discussed above, the complainant has already deposited a total sum of 14,96,950/- to the opposite parties towards the price of the unit. He is seeking possession of the unit, in question, Consumer Complaint No.825 of 2018 or in the alternative, refund of the deposited amount, along with interest and compensation. As per Clause 1.3.3 of the allotment letter, the construction of the unit was to be completed within 48 months from the compliance date i.e. 16.12.2009. However, the opposite parties failed to complete the unit as well as to deliver its possession within that period. Since the opposite parties have failed to complete the project and to deliver the possession of the unit to the complainant within the stipulated period, therefore, they are deficient in rendering service towards the complainant. The opposite parties are liable to deliver possession of the unit, in question, complete in all respects to the complainant, along with Completion/Occupation Certificate issued by the Competent Authority, subject to payment of remaining sale consideration of the unit, in question, if any; without interest or penal interest by the complainant. For delay in delivering possession of the unit within the stipulated period, the opposite parties are also liable to pay interest at the rate of 12% on the deposited amount i.e. 14,96,950/- from 16.12.2013 till delivery of physical possession of the unit, in question, along with Completion Certificate issued by the competent authority. They are also liable to pay compensation for the mental agony and harassment suffered by the complainant. However, if the opposite parties will not be able to deliver possession of the unit, in question, then in the alternative they shall refund the entire amount deposited by the complainant, along with interest and compensation.

33. In view of our above discussion as well as the reasons and discussion held in Consumer Complaint No.825 of 2018, this complaint Consumer Complaint No.825 of 2018 is partly allowed and following directions are issued to the opposite parties:

i) to deliver possession of the unit, in question, complete in all respects, along with Completion/Occupation Certificate from the competent authority, subject to payment of remaining sale consideration of the unit, in question, if any, without interest or penal interest by the complainant; ii) to pay interest at the rate of 12% on the deposited amount i.e. 14,96,950/- from 16.12.2013 till delivery of physical possession of the unit, in question, along with Completion Certificate issued by the competent authority. It is made clear that the payment due towards remaining sale consideration against the complainant, if any, shall be adjusted by the opposite parties from their above said liability; and iii) to pay 15,000/-, as compensation for the harassment and mental agony suffered by the complainant, including the cost of litigation.

34. The compliance of this order shall be made by the opposite parties within a period of two months of the receipt of certified copy of the order. However, if the opposite parties will not be in a position to deliver the complete possession of the unit, in question, as ordered above, then in the alternative of aforesaid directions, they shall refund the entire amount deposited by the complainant i.e. 14,96,950/-, along with interest at the rate of 12% per annum from the respective dates of deposit till realization and to pay 15,000/-, as compensation Consumer Complaint No.825 of 2018 for the harassment and mental agony suffered by the complainant, including litigation expenses, within 30 days after the expiry of aforementioned two months. (JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (KIRAN SIBAL) MEMBER February 20, 2019. (Gurmeet S)