BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.330 of 2020

      Date of Instt. 01.10.2020

      Date of Decision: 31.10.2023

Gurpreet Singh, aged about 27 years, son of Sh. Bhupinder Singh, originally resident of 67-D, B. R. Nagar, Ludhiana through his father Sh. Bhupinder Singh son of Late Sh. Waryam Singh, being Special Power of Attorney holder, resident of 67-D, B. R. S. Nagar, Ludhiana.

..........Complainant

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. Rajesh Arora, Adv. Counsel for the Complainant.

                   Sh. M. S. Sood, Adv. Counsel for OP.

Order

Dr. Harveen Bhardwaj (President)

1.                The instant complaint has been filed by the complainant through his Special Power of Attorney, wherein it is alleged that the complainant is resident of above address. The complainant is a consumer of the OP as a LIG Flat no.139, Second Floor, Block-A under its 13.96 acres development scheme for the residential flats to be constructed near Village Salempur Musalmana, Tehsil and District Jalandhar, which was named as Indra Puram (Master Gurbanta Singh Enclave), was allotted to the complainant for a total sum of Rs.3,70,200/- vide allotment letter no.JIT/4053 dated 04-09-2006 by Jalandhar Improvement Trust as per the terms and conditions enumerated in the said allotment letter. The very first payment towards the application money/ earnest money of Rs.18,000/- was paid by the complainant while applying for 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. After the entire payment of flat in the above manner, 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 time frame but inspite of repeated requests and demands, the possession of the flat was not delivered after the scheduled time period of 2½ years from the allotment of flat as mentioned in clause no.7 of the allotment letter, which means, the possession was to be given in and around March, 2009. In the month of September, 2009, the OP vide its letter no.JIT/3456 dated 11-09-2009 offered to take possession of the flat and also asked the complainant to pay an additional costs i.e. enhanced amount of Rs.60,066/- alongwith additional cess charges thereon of Rs.2503/- totaling Rs.60,066/-. 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 to the allottee who had paid the same, however, the said enhanced amount was not paid by the complainant. It came to the knowledge of the complainant that allottees were called by the officials of JIT in its office situated at Skylark Chowk, Jalandhar, where the concerned officers of JIT got signed the memo of delivery of possession of the flat from many of the allottees, however, after a couples of days, all those allottees were called at the spot for delivery of physical possession of the flat. On visiting at the spot by the allottees as well as by the complainant, it was found that construction material and fittings were not according to the ISI/PWD standards rather sub-standard material was being used in construction work, a single approach road with a width of 11 feet only was also not proper and was quite inadequate, there was no supply of water in the flats and sewerage pipelines were not connected. Interestingly, there was no supply of electricity, 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 JIT to the above defective and incomplete works. Meaning thereby, the said flats were not fit for human habitation. It is also very interesting as well as important to highlight that at the time of delivery of possession to all those other allottees, there was no power line, electricity pole or electric transformer in the above said colony and in order to get installed power lines, electricity poles and transformers for getting power supply of residential plots, an amount of Rs.10,28,711/- was demanded by Punjab State Power Corporation Ltd. (in short PSPCL) from Jalandhar Improvement Trust and the same was also not timely deposited by JIT, rather, the said amount was deposited by JIT with PSPCL only on 06.08.2012 i.e. after about three years from starting the delivery of symbolic possession by the JIT in 2009. And in this regard, documents obtained from the concerned department under RTI Act are sufficient to prove the above said facts. After getting the above said deposit of Rs.10,28,711/- as on 06-08-2012, PSPCL also took a considerable time in order to install the power lines and electricity poles as well as transformers and consequently, the electricity supply was made available thereafter on dated 01-02-2013. In this way, it also stand proved on record that in the absence of power supply, the water supply through submersible pump was also not functional in the said colony at the time when possession of the flat was offered in the year 2009 and the same could be possible only upon supply of electricity in the year 2013. Now, in this way, it also stand proved on record that offer of delivery of possession of flat was false and wrong as well as legally unacceptable, however, the officials/officers of the OP managed to get signed memo of possession from some of the allottes, wherein it was incorrectly got mentioned that wood work, intemal water supply, sewer, electrification and construction work is satisfactory. As such, all those allottees could not shift there as the said flats were not fit for living. In letters of Jalandhar Improvement Trust bearing no.JIT/4764 dated 11.04.2012 as well as it's another letter bearing no.JIT/10819 dated 12.02.2018, both addressed to Indrapuram Puram (flats owners) Welfare and Development Society clearly establish its admission on the part of OP that possession of the flats were delivered to some of the allottees only in papers and that too without providing basic amenities at the site. And as such offer of delivery of possession without basic amenities was not a valid offer possession in the eyes of law. Till today, in the complex of 888 flats of Indra Puran, many of the alottees have taken symbolic possession of flats in the above manner 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 and 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 the absence of the aforesaid basic amenities and development facilities in the flats, the condition of the flats were not worth living yet the allottees were forced to take possession of their respective flats with their threats to charge ‘Chokidara’ cost of Rs.1000/- per month for a single flat. The complainant and all other allottees time and again approached the JIT authorities and requested to complete the above mentioned requirements but no action has ever been taken by the JIT even after firm assurances. 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 at the rate of more than 18% p.a. 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 OPs be directed to return the entire deposited amount of Rs.3,70,200/- alongwith interest @ 18% from the dates of making deposits till realization. Further, OP be directed to pay a compensation of Rs.2,00,000/- for causing mental tension and harassment to the complainant and Rs.20,000/- 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 claim for monetary compensation filed by the complainant is time barred and hence not maintainable before this Forum. It is further averred that the complainant has mislead this Forum and got issued a notice in the present complaint which is barred by law of limitation and operation of law of estoppel. It is further averred that the complaint is liable to be returned as the complainant has not come to the court with clean hands. It is further averred that the complainant is guilty of concealing fact and hence not entitled to any relief from this Court. The matter of the fact is that the physical possession of flat no.139/SF, Master Gurbanta Singh Enclave, Indra Puram, Jalandhar (13.96 Acre Scheme) was handed over to the complainant on 23.09.2009 in development scheme known a 13.96 acre (Master Gurbanta Singh Enclave). On merits, the factum with regard to allotment of the Flat No.139 SF 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 counsel for the complainant very minutely.

6.                It is not disputed that the Flat No.139, Second 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.C2. As per the conditions of the allotment letter, the complainant paid the total amount of Rs.3,70,200/- 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 allottees were asked to deposit the enhanced amount of Rs.60,066/-, vide letter Ex.C-9. Thereafter, due to protest by the allottees, the same was waived after the allottees deposited the enhanced amount. 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, was not delivered even after repeated and continuous requests. The contention of the complainant is that standard material was not used by the OP and other civil amenities like electricity connection, water connection and gas connection were not provided to the complainant, there is no street and no proper approach to the property 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 photocopies of news cuttings/clips and complaints, which highlighted the conditions and progress in the Flat has been proved on record as Ex.CB/3 to Ex.CB/44.

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 news publication have been proved on record by the complainant, which are from different newspapers and the same have been proved as Ex.CB/3, Ex.CB/4, Ex.CB/6 to Ex.CB/8, ExCB/13, Ex.CB/14, Ex.CB/21, Ex.CB/22, Ex.CB/24 to Ex.CB/29 and Ex.CB/37 to Ex.CB/44. These news publication shows that the facilities and development in the Indira Puram is incomplete, meaning thereby there is no development at all. The flat owner wrote number of letters to the OPs and Govt. to provide development facilities which have been proved as Ex.CB/15 to Ex.CB/20 and Ex.CB/30 to Ex.CB/32 and Ex.CB/36. The OP has produced on record only one document Ex.OP1 i.e. Agreement to sale.

 8.               Ex.CB/34 is the letter asking the allotee to take possession failing which Rs.1000/- shall be charged ac Chowkidara. Symbolic possession was given forcibly. But the documents produced by the complainant show that the construction is not complete as per condition of allotment letter. Sewerage pipes have not been connected with main line, LPG facility is not provided despite taking the charges for the same, approach road is not complete. 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, 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. 

9.                In the present complaint also the amenities are not complete despite the entire amount was paid by the complainant. As per the allotment letter, the conditions have not complied with by the OPs as the Flats were not ready within prescribed period, therefore the fault is on the part of the OPs. Even during the pendency of this complaint, the OP has not brought on the file any cogent and convincing evidence, whereby the OP can establish that they were ready for handing over the physical possession of the Flat and the same is fit for delivery of possession to the complainant. 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. In such circumstances, as per law laid down by the Hon’ble State Commission      in a case titled as “Manoj Bagroy Vs. M/s N. H. Matcon”, 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. This fact is also clear from 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.

10.              In view of the above detailed discussion, the complaint of the complainant is partly allowed and OP is directed to refund the amount paid by the complainant for Flat i.e. Rs.3,70,200/- with 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.

11.              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     

31.10.2023                    Member                                 President