THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

 Complaint No.436 of 2020

      Date of Instt. 04.12.2020

      Date of Decision: 19.12.2023

Anupam Sehgal, aged 42 years, wife of Shri Neeraj Sehgal, R/o House No.155, Bhai Dit Singh Nagar, Jalandhar-144001.

..........Complainant

Versus

Jalandhar Improvement Trust, Jalandhar through its Chairman/Administrator.

….….. Opposite Party

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                             (Member)

                   Sh. Jaswant Singh Dhillon       (Member)                                

Present:       Sh. R. K. Arora, Adv. Counsel for the Complainant.

                   Sh. M. S. Sood, Adv. Counsel for OP.

Order

Dr. Harveen Bhardwaj (President)

1.                The instant complaint has been filed by the complainant, wherein it is alleged that the complainant is a consumer of the OP as a LIG Flat no.172, Ground Floor, Block-A for a total sum of Rs.3,91,200/- was allotted to the complainant, vide allotment letter No.JIT/4280 dated 04.09.2006 by JIT as per the terms and conditions enumerated in the said allotment letter under its 13.96 acres scheme of residential flats to be constructed near Village Salempur Musalmana, Tehsil and District Jalandhar which was named as Indra Puram (Master Gurbanta Singh Enclave). The very first payment towards the earnest money of Rs.18,000/- was paid by the allottee before the allotment of flat, which was also acknowledged by the OP in the above said allotment letter. As per the clause no.15 of the allotment letter, the allottee was required to deposit subsequent installments from time to time, as such, the installments were paid by the allottee i.e. the complainant, towards the sale price of the aforesaid flat. After payment of all the installments towards the sale price of the flat allotted by the OP, the complainant approached the concerned officials of the OP for completion of the paper formalities as described in the terms and conditions of the allotment letter and the OP was required to handover possession of the flat within scheduled time frame but inspite of repeated requests and demands, the possession of the flat was not delivered after scheduled time period of 2 ½ years from the allotment of flat as mentioned in clause no.7 of the allotment letter dated 04.09.2006. Meaning thereby, the possession was to be given in and around March, 2009. However, after about six months, in the month of September, 2009, the OP had commenced to write offer letters for delivery of possession of the flats to the flats owners. The complainant was asked to pay an additional cost of Rs.60,066/- within nine months of issuance of the above demand letter and an additional amount of Rs.2503/- was demanded towards Cess Charges vide notice/letter of demand bearing JIT/33775 dated 11-09-2009 and the complainant paid the same and total costs comes Rs.4,47,569/-. Whereas, on continuous and constant protest by allotees, the said enhanced amount was first reduced after admitting calculation mistake and later on, it was totally waived and promised to refund the enhanced amount but the said enhanced amount was not refunded. The complainant was called by the officials of the OP in its office situated at Skylark Chowk, Jalandhar, where the concerned officers of the OP got signed the memo of delivery of possession of the flat from the complainant and all other allottees.  Meaning thereby, only symbolic possession was given in papers and however, after a couples of days, the complainant and some other allotees were called at the spot for delivery of physical possession of the flat and on visiting at the spot, they found that construction material and fittings were not according to the ISI/PWD standards. Furthermore, the said flats are not fit for human habitation as there was no electricity supply, a single approach road is also not proper and was quite inadequate, there was no supply of water in the flats and sewerage pipelines were not connected there was yet no supply of electricity, sub-standard material was used in construction work, work of approach road, the works of piped LPG, works of water supply and sewerage connection were pending and there was no explanation from the concerned officials of the OP to the above defective and incomplete works. At the time of delivery of possession vide the above said memo, there was no power line, electricity pole or electric transformer in the above said colony and in order to get installed power lines, electricity poles and transformers for getting power supply of residential plots, an amount of Rs.10,28,711/- was demanded by Punjab State Power Corporation Ltd. from Jalandhar Improvement Trust and the same was also not timely deposited by JIT, rather, the said amount was deposited by JIT with PSPCL only on 06.08.2012 i.e. after about three years from starting the symbolic delivery of possession by the JIT in 2009 and electricity supply was made available as on 01.02.2013. In this way, it also stand proved on record that in the absence of power supply, the water supply through submersible pump was also not functional in the said colony at the time of delivery of symbolic possession in the year 2009 and the same could be possible only upon supply of electricity in the year 2013. Now, in this way, it also stand proved on record that false memo of possession were got signed from the complainant and all other allottees, wherein it was incorrectly got mentioned that wood work, internal water supply, sewer, electrification and construction work is satisfactory. As such, the complainant and all other allottees could not shift there as the said flat was not fit for living. In the absence of the aforesaid basic amenities and development facilities in the flats, the condition of the flats were not worth living yet the allottees were forced to take possession of their respective flats with their threats to charge ‘Chokidara’ cost of Rs.1000/- per month for a single flat. In this way, the complainant is suffering great financial loss as his hard earned money lying blocked with the OP and the complainant is not getting interest on the entire payment made to the OP whereas the OP used to charge interest at the rate of more than 18% p.a. in case of any delayed payment and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to provide all the promised and proposed amenities in the complex as well as in the said flat in question, which were proposed to be provided as per the Allotment Letter and Brochure of the present scheme especially to ensure two separate and proper approach roads at least 40' feet and 45' feet wide as proposed and promised, Piped LPG Supply, adequate supply of the water and also to ensure proper working of sewerage system as well as to remove all the defects in construction and sub- standard materials used therein and rectify the same, to construct Community Hall as per proposed construction designs and further to award penal interest @ 18% on the entire amount deposited for the flat for the period from date of respective deposits, till the date all the defects in construction and its sub-standard materials are removed and rectified, basic amenities of proper and adequate approach roads, Piped LPG Supply, water supply and sewerage system are provided in the said flat as the complainant could not make use of the said flat even for a single day in view of the fact that the same is not fit for human habitation due to lack of facilities of water supply and sewerage connection and to complete the legal formalities of documentation in favour complainant, if any, like conveyance deed, agreement of sale etc. and to refund the payment of enhanced amount of Rs.62,569/-, which was promised to be refunded. Further, OP be directed to pay Rs.2,00,000/- towards compensation and damages for mental tension, torture and physical harassment of the complainant and Rs.20,000/- towards the cost the present litigation or in the alternative to return the entire deposited amount of Rs.4,47,569/- alongwith interest @ 18% from the dates of making deposits till realization.

2.                Notice of the complaint was given to the OP, who filed reply and contested the complaint by taking preliminary objections that the complainant was handed over the possession vide possession slip dated 14.10.10. OP transferred the flat in dispute it was made clear that the allottee shall be bound by all the terms and conditions as applicable to the original alllotee. It is further averred that the complainant was allotted Flat No.172 GF development scheme Indra Puram (13.96 Acre) (Master Gurbanta Singh Enclave), Jalandhar and the complainant was handed over the possession before mention flat and was duly received by the complainant. It is further averred that the present complaint is hopelessly time bared and has been filed after a lapse about 11 yrs. The claim for monetary compensation filed by the complainant is time barred and hence not maintainable before this Forum. It is further averred that the complainant has mislead this Forum and got issued a notice in the present complaint which is barred by law of limitation and operation of law of estoppel. The complaint is liable to be returned as the complainant has not come to the court with clean hands. On merits, the factum with regard to allotment of the Flat No.172 GF to the complainant is admitted and the facts regarding payment to the above said flat to the OP is also admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

3.                Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement. 

4.                In order to prove their respective versions, both the parties have produced on the file their respective evidence.

5.                We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by counsel for the complainant very minutely.

6.                It is not disputed that the Flat No.172, Ground Floor of the development scheme Indira Puram, Master Gurbanta Singh Enclave, Jalandhar was allotted to the complainant, vide allotment letter dated 04.09.2006, which has been proved as Ex.C2. As per the conditions of the allotment letter, the complainant paid the total amount of Rs.3,91,000/- in installments including earnest money of Rs.18,000/- was deposited before the allotment. The complainant has proved on record the copies of the receipts of payment of installments Ex.C-3 to Ex.C-8. The value of the flat was enhanced and the allottees were asked to deposit the enhanced amount of Rs.56,569/-, vide letter Ex.C-9, which was paid vide receipts Ex.C-10 to Ex.C-12. The grievance of the complainant is that despite taking the installments and the entire amount, the physical possession of the flat complete in all respect, was not delivered even after repeated and continuous requests rather memo of possession was got signed vide Ex.C-13. The contention of the complainant is that standard material was not used by the OP and other civil amenities like electricity connection, water connection and gas connection were not provided to the complainant, there is no street and no proper approach to the property as per the terms and conditions as stated in the brochure and the OP has violated the terms and conditions of the allotment letter. The photocopies of news cuttings/clips and complaints, which highlighted the conditions and progress in the Flat has been proved on record as Ex.CB/3 to Ex.CB/44.

7.                The contention of the OP is that the present complaint is time barred and has been filed after a lapse about 11 years, as the possession has been delivered by the OPs to the satisfaction of complainant. This fact has been admitted by the complainant in their rejoinder which is also a part of the pleading, but this contention is not tenable as the news publication have been proved on record by the complainant, which are from different newspapers and these are from 2020 onwards and the same have been proved as Ex.CB/3, Ex.CB/4, Ex.CB/6 to Ex.CB/8, Ex.CB/13, Ex.CB/14, Ex.CB/21, Ex.CB/22, Ex.CB/24 to Ex.CB/29 and Ex.CB/37 to Ex.CB/44. These news publication shows that the facilities and development in the Indira Puram is incomplete, meaning thereby there is no development at all. The flat owner wrote number of letters to the OPs and Govt. to provide development facilities which have been proved as Ex.CB/15 to Ex.CB/20 and Ex.CB/30 to Ex.CB/32 and Ex.CB/36. The OP has produced on record only one document Ex.OP1 i.e. Possession Slip.

8.                Ex.CB/34 is the letter asking the allottee to take possession failing which Rs.1000/- shall be charged ac Chowkidara. Symbolic possession was given forcibly. But the documents produced by the complainant show that the construction is not complete as per condition of allotment letter. Sewerage pipes have not been connected with main line, LPG facility is not provided despite taking the charges for the same, approach road is not complete. Ex.C-16, written by OP, show that the water supply and sewerage, electricity connection is not complete even the construction of roads is also not complete. The OP has not produced on record any photograph or document from where it can be ascertained that the portable roads, water/sewerage and street lights etc. have been completed. Though, in written statement and rejoinder this fact has been mentioned that possession was taken and the complainant is satisfied after taking the possession to their satisfaction but this contention again is not tenable as per the news publication and letters which were written from time to time to OP. The counsel for OP has submitted that there is no recurring cause of action. He has further submitted that since the possession has already been given, therefore, there is no delay of the OP in giving possession of the flat to the complaint. He has relied upon the law laid down by the Hon'ble National Commission, in a consumer case no.266 of 2020, decided on 10.01.2022, titled as ‘Jignya Mittal Vs. Macrotech Developers Limited’, but the law referred by the Ld.Counsel for the OP is not applicable to the facts of the present case as in the case titled as ‘Jignya Mittal Vs. Macrotech Developers Limited’, there was clear cut offer of the OPs for rental offset, but in the present case, there is no such offer nor any such offer has been accepted by the complainant. The counsel for the OP further relied upon the law laid down by the Hon'ble National Commission, in a case titled as ‘Ashish Gupta Vs. Macrotech Developers Ltd.’ is also not applicable to the facts of the present case as in that case it was held by the District Commission that if any other deficiencies continue to persist, then such continuing deficiencies may, if established, give a continuing cause of action, but in the present case the deficiency has been proved by the complainant. We are supported by the law laid down by the Hon’ble State Commission, in “Manoj Bagroy Vs. M/s N. H. Matcon” in consumer complaint no.429 of 2019, decided on 07.01.2020 that even if the possession is taken by the consumer, it would be a incomplete and invalid delivery of possession for the want of the amenities. It was observed by the Hon'ble State Commission in the above said case that the OP had not obtained the occupation certificate and completion certificate from the competent authorities to enable them to deliver the complete and effective possession to the allottess. Until and unless they obtain such certificate, it cannot be held that complete possession has been delivered and there is continuous cause of action in favour of the complainant till the obtaining of such certificates by the OP and the complaint filed by the complainant was held to be within limitation. 

9.                In the present complaint also the amenities are not complete despite the entire amount was paid by the complainant. As per the allotment letter, the conditions have not been complied with by the OP as the Flats were not ready within prescribed period, therefore the fault is on the part of the OPs. Even during the pendency of this complaint, the OP has not brought on the file any cogent and convincing evidence, whereby the OP can establish that they had handed over the possession of the flat complete in all respect including the amenities as per the condition of Ex.C-2. The OP has only produced on record Possession Slip, but has not produced the occupation and completion certificate duly issued by the competent authority showing that the basic amenities have been duly provided at the site. Even otherwise, Completion Certificate, as envisaged under section 14 of the Punjab Apartment and Property Regulation Act, 1995 (in Short "PAPRA") is the most essential document, which should have been produced with regard the matter in issue but the same has not been produced by the OP to prove that Flat in question as well as basic amenities in the entire complex have been completed in all respects. In such circumstances, as per law laid down by the Hon’ble State Commission in a case titled as “Manoj Bagroy Vs. M/s N. H. Matcon”, the complaint is within limitation and the complainant cannot be made to wait for delivery of possession for an indefinite period and his demand for refund of the amount deposited by him was justified on account of failure of OP to complete the project/flat within the stipulated time period. This fact is also clear from judgment of Hon'ble State Commission, Punjab Chandigarh in First Appeal No.87 of 2020 titled as ‘Jalandhar Improvement Trust versus Mahabir Prasad’ decided on 10.08.2020, wherein it has been held that ‘complainant cannot be made to wait for delivery of possession for an indefinite period and his demand for refund of the amount deposited by him was justified on account of failure of OP to complete the project/fiat within the stipulated time period Even no completion certificate or occupancy certificate has been produced on record by OP to complete the project/flat within the stipulated time period’. Thus, the complainant is entitled for the relief.

10.              In view of the above detailed discussion, the complaint of the complainant is partly allowed and OP is directed to refund the entire amount paid/deposited by the complainant i.e. Rs.4,47,569/- with interest @ 9% per annum from the date of making deposits till its realization. Further, OP is directed to pay a compensation to the complainant for mental agony and harassment caused to the complainant, to the tune of Rs.30,000/- and litigation expenses of Rs.5000/-. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.

11.              Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated          Jaswant Singh Dhillon    Jyotsna               Dr. Harveen Bhardwaj     

19.12.2023         Member                          Member           President