Complaint No.315 of 2019.

           Date of Institution:11.10.2019.

                   Date of order:4.9.2023.

Kamlesh Kaur w/o Amarjit Singh, resident of Village Kala Bala, Tehsil and District Gurdaspur.

                                                                                                     …...Complainant.                                        

     VERSUS

Gurdaspur Improvement Trust, Police Line Road, Near Hanuman Chowk, Gurdaspur through its Executive Officer.

                                                                                                    ….Opposite Party.

            Complaint under section 12 of Consumer Protection Act.

Present: For the complainant:Sh.Karandeep Singh Walia, Advocate.

    For the opposite party: Sh.Rajesh Chohan, Advocate.

Quorum: Sh. Lalit Mohan Dogra President, Sh.Bhagwan Singh Matharu, Member.  

ORDER

Lalit Mohan Dogra, President.

          Complainant Kamlesh Kaur has filed the present complaint U/s 12 of Consumer Protection Act against the opposite party and praying that the opposite party be summoned and ordered to replace defective Flat No.9 (U.F.F.), Block No.6 with Flat No.9 (U.F.F.), Block No.17, development scheme No.7. Complainant had further prayed that directions be issued to the opposite party to pay Rs.50,000/- as compensation for illegal harassment and mental agony caused by them in delivering the possession of new flat to her including Rs.15,000/- as litigation expenses, in the interest of justice.

2.       The case of the complainant in brief is that on 14.05.2012 a lucky draw was conducted by the opposite party in which one Flat No.9 (U.F.F.) falling in Block No.6, of Improvement Trust Development Scheme No.7, Gurdaspur was allotted to the complainant and the cost of same was fixed at Rs.7,10,000/-. It is further pleaded that a allotment letter was given by the opposite party and as per terms and conditions of the same, complainant was to deposit 25% of total sale price of flat + cess charges + misc. expenses amounting to Rs.1,41,455/- within 30 days from the date of allotment letter and the remaining amount was to be paid in five equal installments of Rs.1,06,500/- each. All the conditions were fulfilled by the complainant by paying the whole amount as prescribed by the opposite party including Rs.25,980/- as interest vide demand draft and receipts regarding payment were also issued by the opposite party. It was further pleaded that possession of the above said flat was handed over to the complainant and after receiving the possession complainant was surprised when she noticed that a stay wire of an electricity pole near the flat was passing through kitchen of the flat which made the flat unfit for living and posed a serious risk to the life of complainant and her family members as any miss-happening could happen anytime. Complainant informed about it to the opposite party vide written request letter dated 30.11.2018 in which she requested the opposite party to replace this unsuitable flat with some another flat and after that employees of the opposite party visited the spot and admitted that the flat in question is unfit for living and assured the complainant that they will replace it with another flat no.9 (U.F.F.) in Block no.17 of this scheme No.7 very shortly and directed the complainant to furnish the affidavit that she agrees to take possession of the flat and the same was submitted by her to the opposite party. It was also pleaded that after fulfilling all the stipulations as asked by the opposite party complainant approached the office of the opposite party time and again with the request to deliver the possession of flat no.9 (U.F.F.), Block no.17 in place of defective flat no.9 (U.F.F.), Block no.6 as promised by them but the opposite party kept on dilly dallying the matter on one pretext or the other. It is further pleaded that an application was also moved by the complainant on 20.03.2019 to the Deputy Commissioner Gurdaspur seeking redressal of her grievance but of no avail and a registered legal notice was also sent to the opposite party for the above stated request but the opposite party did not bother to reply. It is further pleaded that matter was lingered on by the opposite party on one pretext or the other by causing illegal delay in replacing the defective flat with another flat and due to this illegal act of the opposite party complainant is compelled to live in a rented house. It is further pleaded that husband of the complainant is a heart patient and she has suffered a lot of illegal harassment, inconvenience and mental agony due to unnecessary delay in delivering the possession of the new flat by the opposite party, hence this complaint.

          During pendency of the complaint the complainant has got the complaint amended with the prayer that the during the pendency of the complaint, the opposite party accepted the request for  replacement of Flat No.9 (U.F.F.) in Block No.6 of Improvement Trust, Development Scheme No.7 with Flat No.9 (U.F.F.) Block 17 in Improvement Trust Scheme No.7, Gurdaspur and thereafter letter No.15 dated 02.01.2019 and letter No.125 dated 30.01.2019, but the when the complainant physically inspected the said second flat, it is found to be in worse condition and since the opposite party has removed the stay wire from the original flat, as such she be given her original flat i.e Flat No.9 (U.F.F.) in Block No.6 of Improvement Trust, Development Scheme No.7. The proposed amendment was allowed with permission to file amended complaint.

3.       Upon notice opposite party appeared through their counsel Sh.Sukhjinder Singh Bains Advocate and filed written reply by taking the preliminary objections that complaint is not maintainable; that complainant has no cause of action to file the present complaint; that present complaint has been filed by the complainant just to harass the opposite party and that complainant has suppressed material facts from this Ld. Forum/Commission while filing the complaint biasly. On merits, it was stated that on 14.05.2012 one flat No.9 (U.F.F.) falling Block No.6 Improvement Trust Scheme No.7, Gurdaspur was allotted to the complainant by way of lucky draw. It is further pleaded that opposite party had already been delivered the possession of the Flat No.9 in Block 6 of Improvement Trust Development Scheme No.7, Gurdaspur to the complainant alongwith all allied facilities after following proper procedure and the complainant was residing therein but the problem with her that there was one stay wire of an electricity pole near the flat passing through the kitchen of her flat which was removed by the opposite party and photographs of existing position were also taken by them and intimation to this effect had already been sent to the complainant vide letter No.98 dated 20.01.2020 which was issued by the Assistant Trust Engineer of the opposite party but complainant is bent upon to replace the flat in question with some another flat and moving false representations whereas the flat is fit for living and human habitation. It is further pleaded that it was admitted that an affidavit was taken by the opposite party from the complainant regarding replacement of Flat No.9 (U.F.F.) in Block No.6 of Improvement Trust, Development Scheme No.7 with Flat No.9 (U.F.F.) Block 17 in Improvement Trust Scheme No.7, Gurdaspur and thereafter letter No.15 dated 02.01.2019 and letter No.125 dated 30.01.2019 also moved by the opposite party to Director Local Bodies, Punjab Chandigarh for seeking approval/direction for replacement of flat of the complainant with new one. A resolution No.96 dated 18.06.2019 for getting approval from the Director Local Bodies, Punjab Chandigarh was also passed by the opposite party and the said authority vide its letter No.S4-DSS-TSS-2019/36941 dated 14.08.2019 gave approval to the opposite party for replacement of the flat by directing them to receive the enhancement amount of Rs.49,886/- in lieu of the replacement as per their terms and conditions. It was further stated that a letter bearing No.1274 dated 03.10.2019 was issued to the complainant by the Executive Officer of the opposite party vide which complainant was asked to deposit Rs.49,886/- i.e. the enhanced amount in lieu of replacement of the flat in question alongwith interest so that possession of the above said new flat can be delivered to her as soon as possible after following proper procedure but she did not respond nor visited the office of the opposite party for redressal of her grievance whereas she admitted in her letter dated 11.07.2018 that she is quite ready to deposit any dues/balance amount to the opposite party, if any and as such there is no default on the part of the opposite party. It was also stated that intimation regarding approval of replacement of flat in question from the higher authority i.e. Local Bodies Govt. Punjab was also sent to the Deputy Commissioner Gurdaspur vide letter No.356 dated 22.03.2019 as it is mandatory and falls under the rules and regulations of the said authority. All other averments made in the complaint have been specifically denied and lastly prayed for dismissal of complaint with cost.

4.       To prove the case, counsel for the complainant had filed affidavit of complainant with copies of documents and original photographs Ex.C1 to Ex.C24.

5.       On the other hand counsel for the opposite party had filed affidavit of Amarbir Singh Asstt. Engineer Ex.OPW-1/A with copies of documents and original photographs Ex.OP-1 to Ex.OP-11.

6.       Rejoinder filed by the complainant.

7.       Written arguments filed by both the parties.

8.       We have carefully examined all the documents/evidence produced on record for its contained statutory merit and have also judiciously considered and perused the arguments duly put forth by the learned counsels for the parties.

9.       Counsel for the complainant has argued that complainant was allotted Flat No.9 (U.F.F.) in Block No.6 of Scheme No.7 by the opposite party. However, when the complainant inspected the flat and she found that a stay wire of electricity department was passing through the kitchen of the flat. It is further argued that even inspite of repeated requests opposite party failed to replace the flat. It is further argued by the counsel for the complainant that during the pendency of the present complaint the opposite party had changed the flat of the complainant i.e Flat No.9 (U.F.F.) in Block No.6 of Improvement Trust, Development Scheme No.7 with Flat No.9 (U.F.F.) Block 17 in Improvement Trust Scheme No.7 after considering the request of the complainant and finding deficiency on their part. However, after replacement of flat complainant inspected the flat and refused to live in it as it was in bad and unfit condition. As such since during the pendency of the complaint the opposite party removed the stay wire of electricity from original flat No.9 (U.F.F.) falling in Block No.6, Scheme No.7, as such complainant be give original flat allotted to her. The act of the opposite party for having refused to change the flat and hand over the possession amounts to deficiency in service. Counsel for the complainant has further argued that the opposite party are also claiming amount of Rs.49,886/- in lieu of replacement of flat in question for which they have no right.

10.     Counsel for the opposite party has argued and admitted that one stay wire of electricity department was passing through the kitchen of the flat No. 9 (U.F.F.) falling in Block No.6, Scheme No.7 which was allotted to the complainant and on the request of the complainant the said flat was changed and a new flat No.9 (U.F.F.) in Block No.17, Scheme No.7 was given to the complainant. However, the complainant has refused to take possession of the new flat. It is further argued by the counsel for the opposite party that an amount of Rs.49,886/- is being claimed on account enhancement of cost of flat due to increase in price of the land by the competent court under Land Acquisition Act.

11.     We have heard the Ld. counsels for the parties and gone through the record. It is admitted fact that complainant was allotted flat No. 9 (U.F.F.) falling in Block No.6, of Improvement Trust Development Scheme No.7, Gurdaspur by lucky draw on 14.05.2012. It is further admitted fact that the stay wire of electricity department was passing through the kitchen of the said flat. It is further admitted fact that on application having been moved by the complainant original flat of the complainant was ordered to be replaced and she was allotted a new flat. The only question for adjudication before this Commission is whether the complainant has got any right to claim the possession of original flat.

12.     To prove her case complainant had placed on record copy of allotment letter, receipts of payments, receipt of possession slip and photographs Ex.C12 to Ex.C14, application for changing the flat Ex.C15 whereas on the other hand counsel for the opposite party had placed on record documents to prove this fact that the flat allotted to the complainant was changed on her request and at this stage complainant could not be given the original flat No.9 (U.F.F.) in Block No.6, Scheme No.7 as the proposal for further selling the same has been sent to the higher authorities.

13.     Perusal of record shows that complainant was allotted flat No. No.9 (U.F.F.) in Block No.6, Scheme No.7 and she has every right to take possession of the flat in good condition and with proper repairs in case of any damage in good and sound condition. Perusal of photographs clearly shows the existence of stay wire in the kitchen and since it is admitted by both the parties and established from photographs Ex.C22 and Ex.C23 that stay wire has been removed. As such this Commission is of the view that it is the prerogative of the complainant to receive the possession of original flat No.9 (U.F.F.) falling in Block No.6, Scheme No.7 which was originally allotted to her and opposite party cannot compelled the complainant to take the possession of some other flat which the complainant has found to be unfit for human habitation. Moreover, the original allotted flat No.9 has not been sold to any third party till date.

14.     Accordingly, the present complaint is partly allowed and opposite party is directed to allot the flat No.9 (U.F.F.) falling in block No.6, Improvement Trust Development Scheme No.7 after carrying out the proper repairs within 45 days from the receipt of copy of this order after receiving application from the complainant. It is further held that opposite party has no right to receive amount of Rs.49,886/- from the complainant which was being charged in lieu of replacement of the original flat. However, it is made clear that if any enhancement take place under Land Acquisition Act, in that case the complainant shall be liable to deposit the share of enhanced compensation in which ever proportion she is found liable to pay along with other allottees. It is further made clear that if this order is not complied with by opposite parties with 45 days after receiving application from the complainant, opposite party shall be liable to pay damages to tune of Rs.10,000/- per month to the complainant till compliance.

15.      The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.

16.     Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record room. 

                               (Lalit Mohan Dogra)

                                                                        President.

Announced:                                          (B.S.Matharu)

Sept. 04, 2023                                               Member

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