BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.191 of 2019
Date of Instt. 30.05.2019
Date of Decision: 20.08.2024
Asha Rani aged about 69 years wife of Sh. Mangat Ram, Shop No.4, Panj Peer, Jalandhar (deceased) through her LRs:-
i) Mangat Ram (Husband) s/o Sh. Harbans Lal
ii) Sunil Kumar son of Sh. Harbans Lal
iii) Raman Kumar (Son)
All residents of E. M. 43, Rasta Mohalla, Phagwara Gate.
..........Complainants
Versus
1. Jalandhar Improvement Trust, Near Hotel Skylark, Jalandhar through its Chairma.
2. Executive Officer, Jalandhar Improvement Trust, Near Hotel Skylark, Jalandhar.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Present: Sh. Neeraj Thakur, Adv. Counsel for 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 purchased a Flat in Indra Puram (Master Gurbanta Singh Enclave), Jalandhar and complainant was allotted LIG Flat No.277, 1st Floor, vide letter No.JIT 4253 dated 04.09.2006. The complainant paid all the installments/dues alongwith interest to JIT. The OPs No.1 and 2 issued a letter to the complainant for handing over the possession and enhancement to be paid to the OPs. The complainant duly paid the first enhancement installment as demanded by the OPs No.1 and 2 and later the remaining two installments were waived by the OPs and the first installment was also refunded by OPs by way of demand draft. As per allotment letter and brochure the OPs were to develop the area and provide basic amenities such as street light, water and sewerage connection, proper road connectivity and LPG supply through pipelines of Rs.6000/- in the clause No.13 of the allotment letter. Neither the above said facilities have not been installed at the site. On account of deficiency and negligent service on the part of the OPs, the complainant suffered mental tension, agony 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 pay Rs.3,62,600/- alongwith interest @ 24% from the date of allotment of flat and Rs.2,00,000/- as damages and Rs.11,000/- as litigation expenses.
2. Notice of the complaint was given to the OPs, who filed reply and contested the complaint by taking preliminary objections that the present complaint is hopelessly time barred under the provision of Limitation Act and hence liable to be dismissed on this score only. It is further averred that the complainant is guilty of laches and delay. Hence the present complaint is liable to be dismissed on this score. It is further averred that complainant is not a consumer and the OP challenges the very admission of the complaint by this Forum. The OP hereby challenges the admission of present complaint as the complainant has not come to Court with clean hands and has concealed the true facts from this Forum. On merits, the factum with regard to allotment of the flat to the complainant is admitted and it is also admitted that the complainant paid the amount of the flat to the OP, 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 very minutely.
6. It is not disputed that the Flat No.277, 1st 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.C1. As per the conditions of the allotment letter, the complainant paid the total amount of Rs.3,62,600/- in installments alongwith 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-2 to Ex.C-7. The value of the flat was enhanced and the allottees were asked to deposit the enhanced amount of Rs.60,066/-, vide letter dated 11.09.2009 Ex.C-8 and the complainant paid the first installment of Rs.20,022/- vide receipt Ex.C-9 and remaining two installments were waived of by the OPs and first installment was also refunded by the OPs as alleged by the complainant. 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 like street light, water and sewerage connection, proper road connectivity and LPG supply through pipe lines, were not delivered even after repeated and continuous requests. The contention of the complainant is that OPs charged Rs.6000/- for providing LPG pipe lines, but there is no LPG pipe lines facility 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 photographs of the Flats, which highlighted the conditions and progress in the Flat have been proved on record as Ex.C-11 to Ex.C-15.
7. The contention of the OP is that the present complaint is time barred and hence not maintainable, but this contention is not tenable as the photographs have been proved on record by the complainant and the same have been proved as Ex.C-11 to Ex.C-15. These photographs show that the facilities and development in the Indira Puram is incomplete, meaning thereby there is no development at all. The photographs produced by the complainant show that the construction is not complete as per condition of the allotment letter. 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. It has been held by the Hon’ble State Commission, (U.T.) Chandigarh, in a case titled as ‘Sandeep Baweja vs Chandigarh Overseas Pvt. Ltd.’ that ‘Delay in possession-refund claimed-Held-it is settled law that when there is a material violation on the part of the builder, in not handing over possession by the stipulated date, the purchaser is not bound to accept the offer even if the same is made at a belated stage.’ It has been held 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. The OP 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. 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 as such there is continuous cause of action in favour of the complainant till the obtaining of such certificates by the OP. It has been held by the Hon’ble Supreme Court, in a case titled as ‘Samruddhi Co-Operative Vs. Mumbai Mahalaxmi Construction’ that ‘failure to obtain occupancy certificate is a continuing wrong and the complaint is not barred by limitation rather it is deficiency in service and complaint is maintainable’. Thus, 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. We are supported by the 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.
8. In view of the above detailed discussion, the complaint of the complainant is partly allowed and OPs are directed to refund the amount paid/deposited by the complainant for Flat with interest @ 9% per annum from the date of making deposits till its realization. Further, OPs are directed to pay a compensation of Rs.30,000/- for causing mental tension and harassment to the complainant and litigation expenses of Rs.8000/-. The entire compliance be made within 45 days from the date of receipt of the copy of order and in case, the same is not done within 45 days, the OP shall be liable to pay additional interest @ 3% per annum to the complainant, on the amount of the Flat deposited by the complainant. This complaint could not be decided within stipulated time frame due to rush of work.
9. 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 Jyotsna Dr. Harveen Bhardwaj
20.08.2024 Member President
