BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

 Complaint No.273 of 2019

      Date of Instt. 18.07.2019

      Date of Decision: 28.08.2023

Davinder Kumar son of Sh. Sohan Lal, resident of 230/15, Labour Colony, Garha, 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. 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 is a consumer of the OP as a LIG Flat no.207-A, First Floor, Block-A for a total sum of Rs.3,80,600/- was allotted to the complainant vide allotment letter no.JIT/8567 dated 04-11-2008 by Jalandhar Improvement Trust 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 sale price of the aforesaid Flat is Rs.3,80,600/-. Thereafter the complainant was asked by the OP to pay an additional costs i.e. enhanced amount alongwith additional cess charges thereon, which was paid by the complainant and total comes to Rs.4,16,719/-. 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. After payment of all the installments towards basic price of Rs.3,80,600/- as well as enhanced amount of Rs.33,616/- and its Cee fee of Rs.2503/- 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 opposite party 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 March, 2009.
Upto the month of April 2011, all the payments, fees, costs of documentation and interest on the delayed payments towards the sale price of the flat, were made as the 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 April, 2011. 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 allottees were called by the officials of the OP in its office situated at Skylark Chowk, Jalandhar and some of them visited there and OP got signed the memo of delivery of possession of the flat, a true photocopy of the same is Exhibit C-14 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 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. Upon taking possession of the flats by the allottes, from the various other defects, the allottees 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 opposite party when these above defects were highlighted. The complainant could not shift there as the said flat was not fit for living. The complainant came across many other allottees of 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 from April, 2011. Since these grievances of the 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 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 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 OPs be directed to pay to the allottees of the flats 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 further OPs be directed to complete the legal formalities of documentation in favour complainant, if any, like conveyance deed, agreement of sale etc. and further OP be directed to refund the payment of enhanced amount, which was promised to be refunded and to pay Rs.2,00,000/- towards compensation and damages for causing mental tension and harassment and Rs.10,000/- 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 complaint of the complainant is not maintainable under the law against the respondent in the present form under the law. It is further averred that the present complaint is barred by limitation. The complainant took the flat in question on allotment vide allotment letter no.JIT/8567 dated 04.11.2008. But the complainant failed to take possession and thereafter he applied to take possession at site and submitted affidavit on 12.10.2009. Thereafter the possession was delivered to the allottee without any grievance or grouse or protest or objection for not providing services and thus the present complaint filed after more than three years of the allotment/ sale agreement/ delivery of possession to the satisfaction of allottee - is barred by limitation. It is further averred that the 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 Forum with clean hands and has concealed the facts from the Forum. In fact there had been physical not mere documentary delivery of possession to complainant and the complainant has misrepresented the facts with a view to unlawfully gain by misguiding not only the OP, but the Forum too by the misstatements. It may be seen that the complainant had received the possession of flat No.207 FF Indira Puram Scheme from the OP vide memo/delivery note admitted himself in the complaint to the effect that the allottee has took over the possession of the aforesaid Flat and that the wood work, internal, water supply, sewerage, electric and construction work are satisfactory. Thus the possession was delivered to the allottee to their satisfaction much before the date of filing the present complaint. The complainant fully being aware of the condition of the Flat and the status of works at site and after being fully satisfied with the same did not lodge any protest. If throughout the period he was not satisfied with the condition of the flat or facilities at site then he should not have took possession of the same or requested at that time for any such grievance but he never complained at that time nor sought any clarifications which implies that he had accepted the flat and facilities as it is at site. However, it is worthwhile to mention here that the alleged deficiency in providing facilities as claimed by him in the complaint is not maintainable because all the facilities as far as the part of Trust is concerned have been duly provided however the maintenance thereof as per the conditions of allotment is upon the Registered Body to be formed by the allottees/vendees of the Flats before taking possession from Jalandhar Improvement Trust as per the Sale Agreement. Thus the complainant has no locus standi to file the present complaint as despite being one of the original allottee she and other allottees had failed to form the registered body for the maintenance as per conditions of allotment. However, it is worthwhile to mention here that the alleged deficiency in providing facilities as claimed in the complaint is not maintainable because all the facilities as far as the part of Jalandhar Improvement Trust is be concerned were duly provided though the maintenance thereof as per the conditions of allotment is upon the 'Registered Body to be formed by the allottees of the Flats before taking possession from Jalandhar Improvement Trust. Moreover, as per the conditions of the allotment possession was to be delivered by the Trust in Semi Finished Condition to the allottee on "As is Where is Basis". Thus, it may be seen that the complainant in order to avoid her liability to maintain the flat intentionally got filed the present frivolous complaint after so many years of allotment. It is pertinent to mention that all the civil works were duly completed and provided as per allotment Terms and Conditions, however, on account of non forming of the Registered Body' by the allottees the conditions deteriorated because of non- maintenance by allottees themselves. The LPG pipeline System was not installed despite provision as the said system is not available in the vicinity or the City as yet thus the same not provided and even many allottees have took refund of the amount so deposited for the purpose. In the layout plan of the Scheme and as also appended with the complaint itself it may be seen that the approach road is existing and duly provided as per the Plan. There is however as mentioned in the plan itself a provision for future expansion' of widening thus being only a future provision the same cannot be claimed as a matter of right by the allottees and the same is not a matter of default or deficiency if despite due efforts the acquisition of the surrounding land could not be made to widen the Road. The right of passage/approach road as clearly mentioned was 11 feet only and whosoever took flats on allotment or applied for the flats was well aware that the approach road is 11 feet only. Furthermore, as per the conditions of the agreement possession of semi- finished flat was to be delivered by the Trust to the allottee on "As is Where is Basis". It is also part of the agreement that the Trust shall not entertain any complaint whatsoever regarding the cost of flat, its design and quality of material used, workmanship or any other defect. It was further agreed that the allottee/vendee agrees and undertakes not to make such complaint/ request aforesaid and shall accept the possession of the flat on "As is where s Basis". The allottee/allottees being bound to maintain the flat individually and the premises by forming a 'Registered Body’. But till date despite the fact that most of the allottees took possession of their respective flats in the year 2009-10 they have failed to form the 'Registered Body' or to maintain the Flats which results in deterioration of the Flats allotted and delivered way back in 2009-10 and now after lapse of so much time false accusations are being levied to get undue and unlawful advantage. Thus, it may be seen that there has been no delay in the construction or deficiency in services or maintenance as far as the opposite party is concerned. Now, if the complainant or for that matter any other allottee do not take possession or takes the possession and does not maintain it or the flat lies closed for so many years at site then Jalandhar Improvement Trust cannot be held responsible for that as it is not to maintain the allotted flats of which either the possession has been taken or is not being taken by the allottee with any malafide intention of ultimately accusing the Trust or the officials of Trust for deficient service. Thus the present complaint deserves to be dismissed on this short score alone. 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 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 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 not maintainable and is barred under the Law. It may be seen that the complainant is guilty of concealment of material facts and is trying to jump into the bandwagon of other complainants in order to gain from the losses of Jalandhar Improvement Trust, although he is not entitled to any kind of relief. Thus the present complaint is barred. 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/JIT. It may be seen that the complainant defaulted and did not turn up to take possession of the Flat Thereafter pursuant to request made by the opposite party the allottees took possession and after taking possession and enjoying the fruits of the property rather complainant has filed the present false and frivolous complaint by concealment of facts to seek refund of the sale money and other facilities. It is pertinent to note that there is no provision in the Agreement between the parties or in the Punjab Town Improvement Act and Rules for refund of the sale money to the successful allottee. Law and justice are based on facts of every case measured on the anvil of pleadings and proof and not imaginations or things heard by the complainant or person bringing up a case which in fact never happened to that person herself. The complainant is not entitled to any relief and the present complaint filed by misrepresentation and concealment of facts from the Forum is liable to be dismissed with exemplary costs. It is further averred that the complainant is barred by his own act, conduct, laches, delay and negligence from filling the present complaint and claiming the relief as prayed in the present complaint. On merits, the factum with regard to allotment of the Flat bearing No.207-FF 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 very minutely.

6.                The allotment of the flat is not disputed rather it is admitted fact. Now the first point to be decided is as to whether the complaint is time barred or not. As per the contention of the OP, the allotment was made on 04.11.2008, but the complainant failed to take possession at site and the possession was delivered to the allottee without any grievance, but this contention is not tenable as the letter dated 02.11.2018 has been proved on record by the complainant as Ex.CB32 and a letter JIT/10819 dated 12.02.2018 and letter dated 16.03.2018 Ex.CB/35 and Ex.CB/36.           Even the Commission has held in many other connected cases that the general condition of the area shows that there is no development. 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.

7.                The complainant has made all the payments even enhanced payment on the terms and conditions to OP, vide Ex.C-10. Perusal of newspapers, it is clear that OP has not provided the civic amenities and facilities to the complainant. The OP has not brought on the file any documentary evidence to prove his case. This fact is clear from case titled as ‘Jalandhar Improvement Trust Vs. Sohan Lal Kundi’ in FA No.871 of 2016, decided on 19.05.2017 that ‘OP is deficient in service and liable to refund the deposited amount with interest. This authority is attracted to the factual situation of this case. We are fortified by law laid down by Hon'ble National Commission in case titled as ‘Jalandhar Improvement Trust Vs. Swaran Jeet’ in Revision Petition No. 225 of 2017 decided on 16.03.2017, wherein it has been held by the Hon’ble National Commission that Improvement Trust is still fighting litigation and steps are still to be taken by it for completing the flat and providing the facilities. Non delivery of possession of flat with facilities during the agreed period amounts to deficiency in service on the part of OP. Further, the Hon’ble State Commission U.T Chandigarh, clear this fact in case titled as ‘Gurpreet Singh, Abhishek Lal versus Puma Relators Private Limited and another’ reported in 2015(4) CPJ 91 wherein it has been held that ‘development and amenities were incomplete at the time of offering possession. Possession cannot be said to be valid and legal possession Refund with compensation, litigation cost and compound interest on deposited amount granted.’ The complainant paid substantial amounts of sale consideration to OP before the scheduled date of delivery of possession in this case. It is the solemn obligation of OP to complete the project by the scheduled date with civic amenities. The OP has failed to deliver complete possession with amenities as per allotment letter Ex.C2/OP2. Only the symbolic possession has been given, vide Ex.C-11, which is not valid and legal as per law. Even no completion certificate or occupancy certificate has been produced on record by the OP.

8.                In view of above discussion and after going through the plethora of judgments, it is clear that OP is not only deficient in service but has also indulged in unfair trade practice. If full and final payment has been received by the OP from complainant, then it is duty of the OP/developer to handover the actual possession with basic amenities. As such, the complainant is entitled for the relief and thus, the complaint of the complainant is partly allowed and OP is directed to refund the sale consideration amount of the Flat i.e. Rs.4,16,719/- to the complainant with interest @ 9% 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    Jyotsna               Dr. Harveen Bhardwaj     

28.08.2023         Member                          Member           President