BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.123 of 2019
Date of Instt. 23.04.2019
Date of Decision: 20.12.2023
Baljeet Kaur wife of Jatinder Pal resident of 353, Kalia Colony, Jalandhar.
..........Complainant
Versus
The Jalandhar Improvement Trust, Jalandhar through its Chairman.
….….. Opposite Party
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member) Sh. Jaswant Singh Dhillon (Member)
Present: Sh. Vinay Sharma, Adv. Counsel for Complainant.
Sh. Brijesh Bakshi, 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 was allotted LIG flat no.64-A, 2nd Floor, Vikas Scheme 51.5 acre (Bibi Bhani Complex) Guru Amardass Nagar, Jalandhar on 16.08.2009 in lucky draw dated 16.8.2009 at red Cross Bhawan, Jalandhar and the information by JIT, Jalandhar vide its letter no.JIT/8036 dated 28.1.2010. The complainant has deposited all the requisite paper and Performa for the registration application no.6665. The complainant as per the terms and conditions has deposited all the installments in time which were required to be deposited by the complainant, last installment was deposited by the complainant on 24.02.2015, now nothing is due towards the complainant. The other necessary fees and formality were completed within stipulated period, the only formality which was to be completed was to give the possession of the plot to the complainant. But till date possession of the plot has not been given to the complainant and moreover no reason was assigned. The complainant is waiting for favourable response from the OP till today but the OP is putting it off on one pretext or another without assigning any reason. The OP is using unfair trade practice and it is a delaying tactics on the part of OP. The claim of the complainant has been wrongly kept pending without assigning any speaking order, sufficient cause or good reason. Because of the unfair trade practice on the part of the OP, negligence and deficiency in service the present complaint filed with the prayer that the complaint of the complainant may kindly be allowed and OP be directed to refund the amount of Rs.5,33,100/- as cost of the said Flat alongwith interest @ 18% per annum from the date of deposit upon the date of actual payment of realization and further OP be directed to pay a compensation of Rs.2,00,000/- for causing mental tension and harassment to the complainant and Rs.22,000/- as litigation expenses.
2. Notice of the complaint was given to the OP, who filed reply and contested the complaint by taking preliminary objections that the above noted complaint is not maintainable under the law against the respondent, in the present form under the law. It is further averred that the present complaint does not lie with the learned Forum. In view of the provisions of Real Estate Regulation and Legislature has Development Act 2016, whereby, framed a Special Statute the for adjudication of matters of real estate wherein the buyers of house/flat may approach the Real Estate Regulatory Authorities established under the Act ibid bar regarding their grievances, the present complaint is not maintainable and is against the letter and spirit of the Act promulgated by the State. The Act states that any person whose complaint in respect of the matters covered under Sections 12, 14, 18, 19 is pending before Consumer Disputes Redressal Forum, State Commission or National Commission established under Section-9 of Consumer Protection Act 1986 on or before the commencement of the Act, may with permission of such Forum, Commission as the case may be withdraw the complaint pending before it and file an application before the adjudicating officer. Thus keeping in view the letter and spirit of the Legislature in framing the special Act the complainant may be directed to withdraw the instant complaint with liberty to approach the Authority under the Act ibid It is further averred that the present complaint is an abuse of process of law. No actionable claim has ever arisen to the complainant to file the present complaint against the respondent. The present compliant is a clever design of the complainant to gain and earn profits from the misery and losses of the OP/Jalandhar Improvement Trust. It may be seen that first of all the allottee/complainant herself defaulted and failed to enter into sale agreement with the OP and furthermore did not turn up to take possession of the Flat as per allotment conditions. Thereafter the OP issued letter to the complainant to take possession of the flat but the complainant did not turn up to take possession rather filed the present false and frivolous complaint by concealment of facts to seek refund of the sale money. There is no provision in the Agreement between the parties or in the Punjab Town Improvement Act 1922 and Rules for refund of the sale money to the successful allottee. It is further averred that the complainant is barred by her own act, conduct and admissions from filing the present complaint and claiming the relief as prayed in the present complaint. On merits, the factum with regard to allotment of the flat to the complainant 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 arguments from 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. The complainant was admittedly allotted the Flat No.64-A, 2nd Floor, vide allotment letter Ex.C-2. The complainant has proved on record that she has made the payment of Rs.5,33,100/- for the allotment vide receipts Ex.C-3 to Ex.C-11. The grievance of the complainant is that despite taking the installments and the entire amount, the OP failed to give the possession. The photocopies of news cuttings, which highlighted the conditions and progress in the Flat has been proved on record as Ex.C/15 to Ex.C/32.
7. The Ld.Counsel for the complainant has submitted that the present complaint is time barred. The allotment was made on 16.08.2009 and the possession could be taken after entering into sale agreement within 30 days from allotment. But the complainant failed to do so. The complainant herself has failed to take possession, but this contention is not tenable as the news publications and photographs have been proved on record by the complainant, which are from different newspapers and these are from 2021 onwards, which has been proved as Ex.C15 to Ex.C21. All these news publication show that the facilities and development in the Bibi Bhani Complex is incomplete, meaning thereby there is no development at all. 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. 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.
8. The contention of the OP is that complainant herself defaulted and failed to enter into sale agreement with the OP and did not turn up to take possession of the Flat as per allotment conditions, but this contention is not tenable. If the complainant had failed to enter into sale agreement with the OP, then it is the duty of the OP to send a notice to the complainant to take the possession, if the complainant does not turn up the OPs can cancel the allotment, but the OP failed to send any notice nor the allotment was ever cancelled. 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 Plot in question as well as basic amenities in the entire complex have been completed in all respects. All the news publication shows that the facilities and development in the Bibi Bhani Complex is incomplete, meaning thereby there is no development at all. So, from all the angles, it is clear that there is deficiency in service and negligence on the part of the OP and as such, we are of the opinion that after waiting for a long time, the complainant became frustrated and demanded the return of the money along with interest, compensation and litigation expenses.
9. In view of the above detailed discussion, the complaint of the complainant is partly allowed and OP is directed to return the entire deposited amount of Rs.5,33,100/- alongwith 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.
10. 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
20.12.2023 Member Member President
