BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.278 of 2019
Date of Instt. 23.07.2019
Date of Decision: 23.06.2023
Charanjit son of Sh. Kartar Chand, resident of VPO Mithapur Main, Near Guru Ravidass Gurudwara, Tehsil and Distirct Jalandhar.
..........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. Deepak Sidana, 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 the LIF flat No.231-A, First Floor, Block-A, for a total sum of Rs.3,80,600/- was allotted to the complainant vide allotment letter no.JIT/8483 dated 04.11.2008 by JIT as per the terms and conditions enumerated in the said allotment letter under its residential flats to be constructed near Village Salempur Musalmana, Tehsil and District Jalandhar under its 13.96 acres scheme which was named as Indira Puram (Master Gurbanta Singh Enclave). The very first payment towards the earnest money of Rs.18,000/- was paid by the complainant 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, total Rs.4,53,270/-. 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 timeframe but inspite of repeated requests and demands, the possession of the flat was not delivered after scheduled time period of 2½ years from the allotment of flat as mentioned in clause no.7 of the allotment letter. Meaning thereby, the possession was to be given in and around May, 2011. Upto the month of May, 2011, 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 May, 2011. However, after about couple of months, the OP had commenced to write offer letters for delivery of possession of the flats to the flats owners. Later on, the complainant was also asked to pay an additional costs i.e. enhanced amount alongwith additional cess fee thereon, which was paid by the complainant in the above manner. However, 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 present complainant has yet not got the possession of the flat after when the complainant found that the water taps, window panes were not installed and whereas water tank and doors were found broken as well as electric wirings and boxes and its sheets were also found missing and these were not provided inspite of demands. 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. Some other all allottees after taking possession 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 approach road was not proper and was quite inadequate, there was no supply of water in the flats and sewerage pipelines were not connected. And on the other hand, there was no explanation from concerned officials of the OP when these above defects were highlighted. The allottees, who ever given possession of their respective flats 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 proper approach road, piped LPG, water supply and sewerage connection were not provided when the possession of the flats was commenced to be given. 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. Till today, in the complex of 888 flats of Indira Puram only about 65 % allottees have taken possession of flats, but none of the allotee could dare to shift therein as these flats have not been properly built up, sub-standard material has been used in the construction, there is only a single approach road and that the said approach road to the complex is also not proper and adequate rather it is just 10/11 feet wide and that too has also not been properly constructed and further more the works of piped LPG is pending, space left for community hall is lying vacant but community hall has also not been constructed, water supply to the flats is not proper and sewerage pipe lines have also not been connected to the main line as such, sewerage is lying blocked. 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 handover possession of the flat after removing all the defects and shortcomings as water taps, window panes were not installed and whereas water tank and doors were found broken as well as electric wirings and boxes and its sheets were also found missing and these were not provided inspite of demands and 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 OP be directed to award penal interest @ 18% on the entire amount deposited for the flat for the period from March, 2009 i.e. proposed date of delivery of flat, 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 of complainant, if any, like conveyance deed, agreement of sale etc. and further to refund the payment of enhanced amount, which was promised to be refunded. 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.4,53,270/- 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 complaint of the complainant is not maintainable under the law against the respondent/OP in the present form, as such the same is liable to be dismissed. It is further averred that the present complaint is a barred from limitation. The complainant applied for the allotment of the residential flat on 27-12-2007 and he deposited earnest money on 17.12.2007, to the tune of Rs.18,000/- and he was allotted the plot by draw held on 24.08.2008 and allotment letter was issued to the complainant on 04.11.2008 and he was also directed vide letter dated 04.11.2008 that the was duty bound to make the payment of well within time only when all the installments were paid by the complainant in that eventuality flat shall be handed over to the complainant and agreement to sell executed on 07.01.2009 in between the complainant and the opposite party. The OP requested the complainant on 04.05.2011 to take the possession of the flat, in case the complainant fails to take the possession then it will be presumed that the possession has been taken with regard to the flat in question with the condition that everything is ok in the flat, but all in vain. Now after a gap of 8 years the complainant filed the present complaint which is hopelessly time barred. It is further averred that the complainant has cooked up the story and took the false, frivolous pleas and based on untruth with an intention to extract the money from the OP. Moreover, the complainant has not approached this Commission with clean hands and concealed the material and vital facts from this Commission. Till date no protest has been lodged with the OP by the complainant. It is worthwhile mention here that if there is any deficiency in providing the facility as claimed by the complainant in the complaint is not maintainable because all the facilities as for as the part of trust is concerned have been duly provided. However, the maintenance thereof as per the condition of the allotment is upon the registered body to be formed by the allottees before taking the possession from JIT, Jalandhar as per the sale agreement. the present complaint does not lies with this Ld. Forum and in view of the provisions of Real Estate Regulation and Development Act, 2016 whereby the legislature has framed a special statue from adjudication of the matter of real estate, hence this Forum has no jurisdiction to entertain and decided the present complaint. It is further averred that the complainant is a dealer and he has obtained the flat with an intention to resale the same at a higher price but due to the slump in the market he could not get the profitable buyer, hence he has filed the present complaint at his belated stage after the period of limitation. On merits, the factum with regard to allotment of the plot to the complainant is admitted and the facts regarding payment to the above said plot 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 the counsel for the complainant very minutely.
6. It is not disputed that the complainant was allotted LIG Flat No.231-A, First Floor, Block-A by the OP in Indira Puram (Master Gurbanta Singh Enclave) as per the allotment letter Ex.C-2. As per the conditions of the allotment letter, the complainant paid the total amount of Rs.3,80,600/- in installments and 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 complainant was asked to deposit the enhanced amount and the complainant paid the amount of Rs.34,050/-, vide Ex.C-9 & Ex.C-10. The grievance of the complainant is that despite taking the installments and the entire amount, the complainant was not provided with the amenities as were to be given by the OP. The OP has violated the terms and conditions of the allotment letter. As per the Clause-7 of the allotment letter Ex.C-2, 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 given by the OP. As per the contention of the complainant, the symbolic possession was given by the OP to the complainant and no physical possession on the spot was given to the complainant. The matter/grievance was agitated and highlighted. The photocopies of complaints, news cuttings have been proved as Ex.CB/3, Ex.CB/4 to Ex.CB/41.
7. The counsel for the OP submitted that an agreement to sell was executed on 07.01.2009 in between the complainant and the OP. The OP requested the complainant on 04.05.2011 to take the possession of the flat, but the complainant failed to do so. The complainant after taking the possession kept mum for 8 years and after 8 years the present complaint has been filed by the complainant complaining about the maintenance of the site and water supply without any basis. No doubt, the OP sent a letter to the complainant for taking possession of the flat Ex.OP-1, but in this letter, it is nowhere stated that all the facilities like wood work, internal water supply, sewerage, electrification and construction work were complete. It is pertinent to make clear here that the complainant has already deposited the entire price money of the said flat, if so, then the complainant is legally entitled to get the possession of the flat and live therein to enjoy the feeling of his own home, but from that facility, the complainant was deprived by the OP for long time. Even during the pendency of this complaint, the OP has not brought on the file any cogent and convincing evidence except one affidavit of Surinder Kumar, Executive Officer of JIT and letter dated 04.05.2011 Ex.OP-1, whereby the OP can establish that the construction work of the flat has already been completed and the same is fit for delivery of possession to the complainant. So, in the absence of this type of evidence from the side of the OP, itself shows that the flat in question are still not ready and inhabitable for human being and due to that reason, the actually and physical possession has not been given by the OP to the complainant, which is clear cut deficiency and negligence on the part of the OP.
8. The OP has raised a contention that the complainant is a dealer and he has obtained the flat with an intention to resale the same at a higher price but due to the slump in the market, he could not get the profitable buyer, but this contention is not tenable as the OP has not filed on record any document nor has proved this fact nor has examined any witness to prove that the complainant has got allotted the flat for the commercial or resale purposes. It has been held by the Hon’ble Chandigarh State Consumer Disputes Redressal Commission, U. T., in a case titled as “Usha Rani Vs. Puma Realtors Pvt. Ltd. & Ors.” 2017 (3) CLT 566 that “Purchase of resident flat-whether complainant a consumer held, yes- unless it is proved that he or she had booked the same for commercial purpose, purchaser is a consumer No evidence to show that plot in question was purchased by complainant, by way of investment, with a view to earn profit in future complainant falls within definition of ‘consumer’.” It has been held by the Hon'ble National Commission, in 2023(1) C.P.R. 474, case titled as ‘Nikhil Kumar Garg & Anr. Vs. Gardenview Abode Private Limited’, decided on 31.01.2023 that ‘the complainant had booked two residential flats would not ipso facto mean that their intention was necessarily to make any strategic profit making investment with a view to sell any unit, from the very time they opted for purchase- Nothing on record, much less in documents, filed on behalf of the OPs to show that the complainants are engaged in the business of buying and selling properties with a view to earn profits therefrom.’
9. In letter Ex.OP-1, the facts regarding only taking the possession by the complainant is mentioned and the facts regarding completion of wood work, internal water supply, sewerage, electrification and construction work are not mentioned. The news publications have been proved on record by the complainant, which are from different newspapers and these are from 2009 onwards, which have been proved as Ex.CB/4, Ex.CB/6, Ex.CB/7, Ex.CB/8, Ex.CB/13, Ex.CB-14, Ex.CB/21 and Ex.CB/22, Ex.CB/24 to Ex.CB/29. All these news publication show that the facilities and development in the Indira Puram (Master Gurbanta Singh Enclave) is incomplete, meaning thereby there is no development at all. The defence of the OP is shattered with the letter dated 11.04.2012 Ex.CB/5. This letter itself shows that the letter was written to Indra Puram Flat Welfare and Development Society intimating them that the roads, parks and the boundary wall have been constructed. Water supply and sewerage system has also been provided. The electrification is almost complete, but the connection is yet to be given by the PSEB (PSPCL) and they are in touch with the department. Approach road is yet to be completed. The recital in this letter is totally contradictory to the document Ex.OP1. This clearly shows that only the symbolic possession was given without the amenities and development of the flats on the spot. In reply to the letter issued by the Indra Puram Flat Welfare and Development Society, the Indra Puram Flat Welfare Owners Society has written number of letters to the OP which has been proved as Ex.CB/9, Ex.CB/12, Ex.CB/15 to Ex.CB/20, Ex.CB/23, Ex.CB/30 to Ex.CB/32 and Ex.CB/36. Vide Ex.CB/34, the news has been published in the news paper Dainik Bhaskar on 08.09.2009, vide which the flat owners have been asked to take the possession of the flats till 15.10.2009, failing which they will be charged Rs.1000/- per month as Chowkidara. This news shows that it has categorically been mentioned in it that all the facilities have been provided in the flats. This information and news is against the record as till 2018 the development of the approaching roads has not been completed, which is clear from Ex.CB/35 and the facilities of the electricity connection was yet to be provided vide letter Ex.CB-5. 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.
10. Thus, in view of the law laid down by the Hon'ble State Commission, Hon'ble National Commission and Hon’ble Chandigarh State Commission, UT, the possession given to the complainant without amenities and facilities was partial possession and was not effective possession and the cause of action is continuous till all the amenities are provided and completion certificate is obtained and hence the complaint is within limitation. So from all the angles the OP has failed to prove his case and thus, the complainant is entitled for the relief.
11. 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 alongwith approach road within three months. They are 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.4,53,270/- 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.
12. 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
23.06.2023 Member Member President
