BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.189 of 2019

      Date of Instt. 28.05.2019

      Date of Decision: 09.12.2022

1.       Bimla Rani wife of Late Sh. Swaran Lal,

2.       Varinder Kumar son of Late Sh. Swaran Lal,

          Both residents of H. No.194, Green Park, Near Bus Stand,      Jalandhar.

..........Complainants

Versus

Jalandhar Improvement Trust, Jalandhar through its Chairman/Administrator.

….….. Opposite Party

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Sh. Jaswant Singh Dhillon       (Member)                                

Present:       Sh. R. K. Arora, Adv. Counsel for Complainants.

                   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 No.1 Bimla Rani is mother of complainant No.2 Varinder Kumar. The complainant No.1 through her son i.e. the complainant No.2 got applied for allotment of flat with the OP/JIT in its 51.5 acre scheme known as Bibi Bhani Complex, wherein flats were proposed to be constructed Near Guru Amar Dass Nagar, G. T. Road, Amritsar Bye Pass, Jalandhar and a LIG Flat No.46-A, GF for a total sum of Rs.6,26,422/- was allotted by the OP in the name of Varinder Kumar i.e. complainant No.2, who is son of complainant No.1, vide allotment letter No.JIT/7989 dated 28.01.2020 as per terms and conditions enumerated in the said allotment letter. However, in the year 2013, after when all the payments of the said flat were deposited with the opposite party, the Complainant no.1 through her son Varinder Kumar i.e. the complainant no.2, got transferred the aforesaid flat in her name after paying a transfer fee of Rs.2000/- vide receipt no.54951 dated 27-12-2013 and consequently, letter of transfer of ownership of flat was also issued to the complainant no.1 Bimla Rani vide memo no.JIT/3382 dated 31-12-2013. As such, the complainant Bimla Rani became owner of the flat in question in place of her son and consequently, complainant Bimla Rani became consumer of opposite party. However, in order to avoid any legal technicality, the present complaint is being filed by both of them as the original allottee as the said flat, both of them, have been suffering well as present owner physical and mental torture as well as financial loss due to deficiency in service. The very first payment towards the earnest money of Rs.60,000/ - was paid by the complainants before the allotment of plot, which was also acknowledged by the opposite party in the above said allotment letter. As per the clause no.15 of the allotment letter dated 28-01-2010, 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, total Rs.6,26,422/-. Thereafter, 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 the possession of the flat was not delivered within scheduled time period inspite of repeated requests and demands in this regard. Upto the month of July, 2012 all the payments, fees, costs of documentation and interest on the delayed payments towards the sale price of the flat, were made as per the demands raised by the officials of the OP, but the possession of the flat was not given to the complainant even after repeated and continuous requests since July, 2012. It was only in the month of May, 2017, the OP had commenced to write offer letters for delivery of possession of the flats to the flat owners. Accordingly, some of the allottees were called by the officials of the OP in its office situated at Skylark Chowk, Jalandhar and got signed the memo of delivery of possession of the flat, meaning thereby, only symbolic possession was given in papers and thereafter after couples of days, the complainant was called at the spot for delivery of physical possession of the flat and on visiting at the spot, the allottees found that the works of wooden door, window windowpane, paint and white wash were being carried out and furthermore, the flat of the complainants was being used for storing goods/construction material by the contractor of the OP. There was no explanation from the concerned officials of the OP for the sub-standard material used in construction and from the various other defects, it was clear 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 supply of water in the flats and sewerage pipelines were not connected. There was no explanation from concerned officials of the OP. Contractor of the OP vacated the said flat of the complainants after couples of months. However, the complainants could not shift there as the said flat was not fit for living. The complainant came across many other allottees for the flats in the said complex who were also complaining about the similar problems. The problems of all most all the allottees were common as the essential infrastructural works as well as basic amenities such as water supply and sewerage connection were not provided when the possession of the flats was commenced to be given from May, 2017. Since these grievances of all the allottees are common, as such, all most all the allottees of this complex of the OP jointly and severally met the concerned officials of the OP many a times to get these basic amenities, but these have not been provided so far. In order to agitate the matter in issue before the concerned higher authorities, the allottees also got highlighted their grievances in the electronic media and in the print media for redressal of their grievances. 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 @ of more than 18% per annum 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 OP 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 the proper and adequate supply of the water and also to ensure proper working of sewerage system and further OP be directed to award penal interest @ 18% on the entire amount deposited for the flat for the period from July, 2012 i.e. proposed date of delivery of flat, till the date all the basic amenities of 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 of complainant, if any, like conveyance deed, agreement of sale etc. Further, OP be directed to pay a compensation of Rs.2,00,000/- for causing mental tension and harassment to the complainant and Rs.10,000/- as litigation expenses and to return the entire deposited amount of Rs.6,26,422/- alongwith interest @ 18% from the dates of making deposits till realization of this amount.

2.                Notice of the complaint was given to the OP, who filed reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable under the law against the respondent in the present form and further alleged that the complainants are guilty of concealment of material facts and not entitled to any relief as alleged consumers. It is noteworthy that the complainants have jointly signed and filed the present complaint along with their affidavit that complainant no.1 through her son complainant no.2 got applied for allotment of flat with the opposite party/Jalandhar Improvement Trust in its 51.5 Acre Development Scheme. Whereas the fact of complainant No.2 being the dummy applicant and getting allotment on behalf of complainant no.1 was concealed from opposite party at the time of application, allotment or deposit of money. It is pertinent to mention that there is income and other eligibility criteria for application or allotment of LIG Flats and it seems that to surpass the same right from the inception the application was made by complainant no.2 through her son complainant no.1 and thus the present complaint being based upon concealment of facts is not maintainable. It is further averred that complainant has recklessly with total false pleadings and based on untruth filed the present complaint with an allurement of seeking the refund of the sale money whereas there is no such occasion at all. The complainant has not approached the Commission with clean hands and has concealed the facts from the Commission. In fact there had been physical not mere documentary delivery of possession to complainant no.1 and the complainant no.1 and 2 have misrepresented the facts with a view to unlawfully gain by misguiding not only the opposite party, but the Commission too by the misstatements. It may be seen that the complainant had received the possession of fiat No.46-A Ground Floor Bibi Bhani Complex from the opposite party vide possession delivery note annexed itself with the complaint to the effect that she has took over the possession of the Flat no.46-A Ground Floor in Bibi Bhani Complex and that the wood work, internal, water supply, sewerage, electric and construction work are satisfactory. Thus the possession was delivered to her to her satisfaction much before the date of filing the present complaint. Thus, the present complaint may kindly be dismissed with exemplary costs of Rs.25,000/- for false and frivolous litigation and further action be taken for filing wrong affidavit and complaint before the Commission. The present complaint does not lie with the learned Forum. In view of the provisions of Real Estate Regulation and Development Act 2016, whereby, the Legislature has framed a Special Statute 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 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 Commission, State Commission or National Commission established under Section 9 of Consumer Protection Act, 1989 on or before the commencement of the Act, may with permission of such 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 idid. It is further averred that the complaint is not maintainable and is barred under the law. The present complaint is an abuse of the process of law. It is further submitted that the complainant is barred by his own act, conduct, laches and negligence from filing the present complaint and claiming the relief as prayed in the present complaint. On merits, it is admitted that the flat in question has been allotted to the complainant and complainant has also deposited the entire price of the flat, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and 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 complainant No.1 through complainant No.2 allotted LIG Flat No.85-A, Second Floor by the OP as per the allotment letter Ex.C2 and after that the complainant No.2 got transferred the aforesaid flat in the name of complainant No.1 after paying a transfer fee of Rs.2000/-, vide receipt No.54951 dated 27.12.2013, which is evident from Ex.C-4 & Ex.C-5. As per the conditions of the allotment letter, the complainant paid the total amount of Rs.6,26,422/- in installments and earnest money of Rs.60,000/- was deposited before the allotment. The complainant has proved on record the copies of the receipts of payment of installments Ex.C-6 to Ex.C-11. The grievance of the complainant is that despite taking the installments and the entire amount, the possession of flat was not delivered within scheduled time period. The OP has violated the terms and conditions of the allotment letter. As per the Clause-7 of the allotment letter Ex.C-3, the amenities and facilities were to be completed within 2½ years of the allotment and possession will be delivered thereafter, but the facilities and amenities have not been provided by the OP. As per the contention of the complainant, the symbolic possession was given by the OP to the complainant as per Ex.C-20, but no physical possession on the spot was given to the complainant. This clearly shows the deficiency in service and unfair trade practice.

7.                As discussed above the facts of allotment of LIG Flat No.46-A and payment of installments has been admitted and proved by the parties. As per Clause No.7 of the allotment letter Ex.C-3, the OP was supposed to construct the flats and provide the development facilities and all other amenities within 2 ½ years of the allotment and after that the possession was to be delivered. The news publications have been proved on record by the complainant, which are from different newspapers, which have been proved as Ex.C-12 to Ex.C-19. The OP has not produced on record any document from where it can be ascertained that the work of water supply and sewerage system etc. has been completed. 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. So, from all the angles, it is clear that there is deficiency and negligence on the part of the OP and as such, we are of the opinion that after waiting a long time, the complainant became frustrated and demanded the return of the money along with interest, compensation and litigation expenses.                 

8.                In view of the above detailed discussion, the complaint of the complainant is partly allowed. From the documents produced on record by both the parties, it is evident that partial possession was handed over to the complainant without the development work and amenities as per the conditions laid down in allotment letter. Therefore, the OP is directed to complete the development work and provide all the amenities and facilities in the flat of the complainant as per the allotment letter and brochure of the present scheme within three months. The OP is further directed to complete the procedure of completion of all the legal documents, failing which OP is directed to return the entire deposited amount of Rs.6,26,422/- 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.

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                   Jaswant Singh Dhillon                     Dr. Harveen Bhardwaj     

09.12.2022                     Member                                         President