BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.281 of 2019
Date of Instt. 23.07.2019
Date of Decision: 20.06.2023
Harnek Singh Saggu son of Shri Sucha Singh Saggu, resident of WZ-3rd B/144-A, Vishu Garden, Tilak Nagar, West Delhi also at 19, Shanker Garden Colony, Gujja Peer Road, 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 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 a LIG flat No.42-A First Floor of the JIT under its 51.5 acre scheme known as Bibi Bhani Complex, Guru Amar Dass Nagar, Jalandhar, which was allotted to the Raj Kumar for a total sum of Rs.5,87,942/, vide allotment letter No.JIT/8070 dated 28.01.2010 as per terms and conditions enumerated in the said allotment letter. However, in the year 2019, after when all the payments of the said flat were deposited with the OP, the original allottee Raj Kumar after getting due permission from the OP, sold the aforesaid flat to the complainant and letter of transfer of ownership of flat was also issued to the complainant vide memo no.JIT/4013 dated 01.03.2019. As such, the complainant became owner of the flat in question in place of original allottee and consequently, the present complainant became consumer of OP. The very first payment towards the earnest money of Rs.60,000/- was paid by the Raj Kumar 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, the allottee was required to deposit subsequent installments from time to time, as such, the installments were paid by the allottee towards the sale price of the aforesaid flat. 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 allottee 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 flats owner. 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 couples of days, the allottee 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 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 of the OPs and sewerage pipelines were not connected. There was no explanation from concerned officials of the OP. The allottee 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 her 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, 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.5,87,942/- 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 above noted complaint 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 flat in question has been allotted to Raj Kumar son of Lachman Dass, resident of House No.24, New Colony, Amar Nagar, Jalandhar and he has deposited the whole amount and possession of the same has been taken out by him and the said Raj Kumar sold the said flat to the present complainant and the OP excepted the request of the sale made by said Raj Kumar in favour of present complainant vide letter No. 4013 dated 01-03-2019, so the complainant is not the consumer of the OP. The complainant after being satisfied of the condition of flat he has agreed to purchase the flat from the original allottee. Now one find morning he cannot say the condition of the flat is not good and there is no amenities in the said colony. The said flat purchased by present complainant from the original allottee since the original allottee sold the flat to the present complainant meaning thereby the original allottee purchased the flat from the opposite party for commercial use only and not for residential purpose, as such the present complaint is not maintainable at the present forum. 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 from the date i.e. 01.03.2019 of transfer of the flat in the name of 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 Jalandhar Improvement Trust, Jalandhar. 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 present complaint is an abuse of process of law. No actionable claim has ever arisen to the complainant to file the present complaint. The present complaint has been filed with evil design to gain and earn the profit from the OP. The complainant is barred by his own act and conduct in filing the present complaint, as such the same is liable to be dismissed. The claim for monitory compensation filed by the complainant is time barred, hence not maintainable. On merits it is admitted that Raj Kumar was allotted the said flat and then the same was transferred to the Harnek Singh and it is also admitted that the complainant has 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 allottee was allotted LIG Flat No.42-A, First Floor by the OP as per the allotment letter Ex.C2. It is also not disputed rather admitted and proved fact that the flat was transferred to Harnek Singh, vide memo no.JIT/4013 dated 01.03.2019 Ex.C-10. As per the conditions of the allotment letter, the allottee paid the total amount of Rs.5,87,942/- 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-4 to Ex.C-6. 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-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, but no physical possession on the spot was given to the complainant. The construction material and fittings in the flat were not as per PWD standard and sub-standard material was used. This clearly shows the deficiency in service and unfair trade practice.
7. As discussed above the facts of allotment of LIG Flat No.42-A, payment of installments and then transferred to the said plot to the Complainant Harnek Singh have been admitted and proved by the parties. As per Clause No.7 of the allotment letter Ex.C-2, 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.CB1 to Ex.C9. Perusal of these news publications show that the project was incomplete when the possession was delivered. People of the locality protested for lack of amenities. No development was done.
8. The OP has raised a contention that the said flat purchased by the present complainant from the original allottee since the original allottee sold the flat to the present complainant meaning thereby the original allottee purchased the flat from the OP for commercial use only and not for residential purpose, 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 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. 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.
10. In the present case also only symbolic possession has been given without amenities and without obtaining completion/occupation certificate. 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. The complainant wrote letter to OP Ex.CB-10 stating that there are water supply and sewerage issues in the flats. Sewerage is blocked and water pipes are leaking. In other case titled as ‘Sushil Kumar Vs. JIT’ Local Commissioner was appointed, who gave his report that the water has not yet been released, there is blockage of sewerage and leak in pipe line. The order dated 12.03.2019 has been proved as Ex.CB-11. 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.
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.5,87,942/- 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
20.06.2023 Member Member President
