BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.296 of 2020

      Date of Instt. 18.09.2020

      Date of Decision: 10.04.2024

Jashanjit Kaur W/o Sh. Ravinder Singh 27, Shiv Enclave, Deep Nagar, Jalandhar Cantt. Punjab (M):98882-85522

..........Complainant

Versus

Jalandhar Improvement Trust, Model Town Road, Jalandhar City. Through its Executive Officer.

….….. Opposite Party

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)

Present:       Sh. Darshan Singh Ahuja, Auth. Rep. for Complainant.

                   Sh. M. S. Sood, 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 submitted an application No.66326 on prescribed form to OP alongwith all the requisite documents and complied with all the requirements. The complainant was allotted LIG Flat No.155-A, Second Floor, Block-A in Vikas Scheme Indra Puram (Master Gurbanta Singh Enclave), Jalandhar in a lucky draw dated 24.08.2008 at Guru Gobind Singh Stadium. The information regarding the allotment of LIG flat was given by OP vide its letter No.JIT/8434 dated 04.11.2008, to the complainant. The very first payment towards the earnest money of Rs.18,000/- was paid by complainant before the allotment of flat, which was also acknowledged by the OP in 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 flat that comes Rs.3,70,200/-. After the entire payment of flat in the above manner, the complainant and all other allottees were also asked by the OP to pay an additional costs i.e. enhanced amount alongwith additional cess charges, which was paid i.e. Rs.30,119/- and total amount of the flat comes Rs.4,00,319/-. The complainant and all other allottees were called by the officials of the OP in its office situated at Skylark Chowk, Model Town Road, Jalandhar, where the concerned officers of the OP got signed the memo of delivery of possession of the flat from the complainant and all other allottees. The said memo of possession got signed from the complainant in the office of Jalandhar Improvement Trust as on 05.10.2009. Meaning thereby, only symbolic possession was given in papers and however, after a couples of days, the complainant and some other allottees were called at the spot for delivery of physical possession of the flat and on visiting at the spot, they found the construction material and fittings were not according to the ISI/PWD standards. Furthermore, the said flats were not fit for human habitation as there was no electricity supply, a single approach road was also not proper and was quite inadequate, there was no supply of water in the flats and sewerage pipelines were not connected there was yet no supply of electricity, 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. Further, it is very interesting as well as important to highlight that at the time of delivery of symbolic/physical possession vide the above said memo, there was no power line, electricity transformer in the above said enclave and in order to get installed power lines, electricity poles and transformers for getting power supply of residential flats, balance amount of Rs.10,78,711/- 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 symbolic delivery of 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. In this way, it also stand proved on record that in the absence power supply, the water supply through pump was also not functional in the said Colony at the time of delivery possession in the year 2009 and the same could be possible only upon supply of electricity in the year 2013-14. Now, in this way, it also stand proved on record that false memo of possession were got signed from the complainant and all other allottees, wherein it was incorrectly got mentioned that wood work, internal water supply, sewerage electrification and construction work is satisfactory. As such, the complainant and all other allottees could not shift there as the said flat was not fit for living. 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% 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 OPs 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, 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 to award 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, 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 to refund the payment of enhanced amount, which was promised to be refunded Rs.30,119/- and Rs.2,00,000/- towards compensation and damages for mental tension, torture and physical harassment of the complainant and Rs.10,000/- as litigation expenses or in the alternative to return the entire deposited amount of Rs.4,00,319/- 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 claim for monetary compensation filed by the complainant is time barred and hence not maintainable before this Commission. The complainant has mislead this Commission and got issued a notice in the present complaint which is barred by law of limitation and operation of law of estoppels. 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 Commission. On merits, the factum with regard to allotment of the flat to the complainant is admitted and it is also admitted that the complainant paid the amount of the flat to the OP, 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.155A, Second Floor of the development scheme Indira Puram, Master Gurbanta Singh Enclave, Jalandhar was allotted to the complainant, vide allotment letter dated 04.11.2008, which has been proved as Ex.C1. As per the conditions of the allotment letter, the complainant paid the total amount of Rs.3,70,220/- 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-2 to Ex.C-8. The value of the flat was enhanced and the allottees were asked to deposit the enhanced amount of Rs.30,119/- and the complainant paid the same vide receipts Ex.C-9 to Ex.C-11. 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, which highlighted the conditions and progress in the Flat has been proved on record as Ex.CB/13 and Ex.CB/30.

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 and representations made by the residents have been proved on record by the complainant, which are from different newspapers and the representations of the society and the same have been proved as Ex.CB/13 and Ex.CB/30. These news publication and the representations show that the facilities and development in the Indira Puram is incomplete, meaning thereby there is no development at all. Ex.C-15, written by OP, show that the water supply and sewerage, electricity connection is not complete even the construction of roads is also not complete. Letters of JIT Ex.C-15 and Ex.C-16 shows that there is non-completion of basic facilities. As per Ex.C-15 no electricity connection was supplied nor the work of laying lines was complete. Ex.C-16 show that the agreement regarding 45 feet wide approach road was also not executed in 2018 nor the matter was settled. The OP has produced on record only documents Ex.OP-1 i.e. Possession Slip and Ex.OP-2 Agreement to Sell with complainant.

8.                Ex.C-17 is the letter asking the allotee to take possession failing which Rs.1000/- shall be charged ac Chowkidara. Symbolic possession was given forcibly, which is evident from the documents produced by the complainant show that the construction is not complete as per condition of the 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. Though, in written statement and rejoinder this fact has been mentioned that possession was taken and the complainant was satisfied after taking the possession, but this possession was not complete possession rather the same was symbolic possession. The letters written to the OP have been proved as Ex.CB-2 to Ex.CB-5 and Ex.CB-8.

9.                The counsel for OP has submitted that the physical possession of flat was handed over to the complainant on 23.09.2009 and the agreement of sale executed between the parties on 31.12.2018. 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 as such 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 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 been complied with by the OPs as the Flats were not ready within prescribed period, therefore the fault is 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 had handed over the possession of the flat complete in all respect including the amenities as per the condition of Ex.C-1. The OP has produced on record Agreement to Sell, but 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.

11.              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 symbolic and incomplete possession was given to the complainant. 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. We are supported by the 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.

12.               In view of the above detailed discussion, the complaint of the complainant is partly allowed and OP is directed to refund the amount deposited by the complainant for Flat with interest @ 9% p. a. from the date of making deposits till its realization. Further, OP is directed to pay a compensation of Rs.30,000/- for causing mental tension and harassment to the complainant and litigation expenses of Rs.5000/-. The entire compliance be made within 45 days from the date of receipt of the copy of order and in case, the same is not done within 45 days, the OP shall be liable to pay additional interest @ 3% per annum to the complainant, on the amount of the Flat deposited by the complainant. This complaint could not be decided within stipulated time frame due to rush of work.

13.               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                                           Jyotsna                     Dr. Harveen Bhardwaj     

10.04.2024                        Member                            President