BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.198 of 2017

Date of Instt. 30.06.2017

Date of Decision: 08.01.2019

Jatinder Kaur aged about 45 years wife of S. Maninder Pal Singh, R/o H. No.195, Bhai Ditt Singh Nagar, Near Railway Road, Jalandhar.

..........Complainant

Versus

1. Jalandhar Improvement Trust, Jalandhar through its Chairman.

2. Punjab Govt., Local Govt. Deptt., Chandigarh Through its Secretary, Chandigarh. (Not Summoned)

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Jyotsna Thatai (Member)

Present: Sh. Nitin Jain, Adv Counsel for the Complainant.

None for the OP.

Order

Karnail Singh (President)

1. This complaint has been filed by the complainant, wherein alleged that the committee constituted under State memo No.6/45/05-3SS2/1670 dated 01.03.2006 approved the construction of LIG Flats under BIBI BHANI COMPLEX SCHEME, to be constructed in the 51.5 acre Development Scheme (Guru Amar Dass Nagar, Jalandhar). To this effect, an offer was issued for calling application for LIG Flats in the above said scheme. In response to above offer, the complainant applied for LIG Flat under General Category to OP No.1 and accordingly, OP informed that a Lucky draw conducted on 16.08.2009 was drawn in favour of the complainant and accordingly, the complainant has been allotted a flat bearing No.28-A at ground floor. This fact was also endorsed by the OPs, vide resolution No.111 dated 07.10.2009.

2. That the complainant complied with the conditions as mentioned in the allotment letter dated 28.01.2010 and complainant as per schedule mentioned in the said letter dated 28.01.2010, made the payment of allotment money and to the office of the OP No.1. Last payment of Rs.58,676/- was made by complainant to the office of OP No.1 on 14.01.2015, vide cheque No.825065 dated 14.01.2015 drawn on Oriental Bank of Commerce, Jalandhar in favour of the Chairman Improvement Trust, Jalandhar. After making full payment of the said flat, complainant approached OP No.1 by visiting in the office personally, a number of times, to handover the possession of the fully constructed, completed and habitable flat as allotted to the complainant as per allotment letter dated 28.01.2010, but OP No.1 failed to do so on every request. It is pertinent to mention here that as per Clause 7 of the allotment letter No.JIT/7910 dated 28.01.2010, the construction and development work of the flat and complex surrounding it should have been completed within 2½ years of allotment i.e. upto July 2012, and thereafter, the allottee could get the possession of the allotted flat by executing an agreement for possession with the trust. However, up-till now, the work of the flat is not yet completed and the flat and complex surrounding it, is yet not in a habitable condition. The process of construction is held up and no progress is being made, for the reasons best known to the OPs. The complainant had used borrowed funds, taken on interest, to pay for the cost of flat. In addition to that, JIT also charged 12% p.a interest on the installments of the principal amount of the flat. Heavy interest was paid by the complainant, to pay the installments. Even the material used to construct the said building is sub-standard. The act and conduct of the OPs amount to gross negligence in services. Due to failure of the OPs, complainant suffered huge losses. Complainant is burdened with the interest amount and suffered a lot of mental and physical tension as OPs failed to keep with their promises. After getting frustrated, the complainant served a legal notice to the OP No.1 and again make a request for handing over the possession of the flat allotted to the complainant, but all in vain 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 refund Rs.15,67,303/- i.e. Rs.6,94,127/- paid by the complainant along with interest @ 24% per annum and further OPs be also directed to pay a penalty of 20% of the above amount along with an amount of Rs.1,00,000/- as compensation on account of harassment and losses suffered by the complainant and further OPs be directed to pay an amount of Rs.21,000/- as litigation expenses.

3. Notice of the complaint was given to the OP, who appeared and filed reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable in present form and the same is liable to be dismissed on this score only and further averred that the complainant has not approached the Forum with clean hands and therefore, the complaint is liable to be dismissed on this score and further submitted that the construction work was to be completed on 16.05.2011, but the contractor did not completed the construction work and leave the job. The OP many times intimated the contractor to restart the work, but the contractor never started the work due to which the OP, vide its resolution No.124 dated 03.03.2014 blacklisted the said contractor and forfeited the bank and security and for this purpose government vide letter No.3 FSS TSS 2014/4482 dated 04.11.2014 gave approval. After the approval of the Government, new tenders has been issued and the remaining construction work will be completed soon and further alleged that this Forum has got no jurisdiction to entertain the present complaint and further submitted that the construction work of the flat No.28, G. F. Bibi Bhani Complex, Guru Amar Dass Nagar, Jalandhar City has already been completed by the OP and intimation with regard to it was already sent to the complainant, but the complainant intentionally has not disclosed this fact in his complaint and has suppressed material facts from the Forum. It is pertinent to mention over here that the intimation with regard to the completion of the above mentioned flat was duly sent by the JIT, vide its letter dated 08.09.2016, but despite receiving the said letter, the complainant never came forward to take the possession of the flat. It is further pertinent to mention over here that again one more letter was issued by the OP on 16.05.2017 as per which the complainant was again called upon to take the possession of the flat on 25.05.2017 at 10:00 AM in the office of JIT and it was further mentioned that in case the complainant does not come to take the possession of the flat it will be deemed that the possession of the flat is taken by the complainant, as such, the present complaint deserves to be dismissed on suppression of the material facts from the Forum. On merits, the factum in regard to allotment of the flat and making a payment of the flat is not disputed by 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 and the same may be dismissed.

4. In order to prove the case of the complainant, the complainant examined Joginder Singh S/o S. Battan Singh, Architect, who tendered into evidence his own duly sworn affidavit Ex.CA along with his report Ex.C-1 and Ex.C-2 Copy of his Aadhar Card along with some other documents Ex.C-3 to Ex.C-19 and then counsel for the complainant tendered into evidence affidavit of the complainant Ex.CB alongwith some documents Ex.C-20 to Ex.C-50 and closed the evidence.

5. Similarly, counsel for the OP tendered into evidence affidavit Ex.OPA and closed the evidence.

6. We bestowed our thoughtful consideration to the submissions made by learned counsel for the respective parties and also gone through the case file very minutely.

7. First of all, we like to make it clear that the claim of the complainant that a LIG Flat bearing No.28-A at ground floor was allotted to him and its full consideration had been already paid by the complainant, is not in dispute.

8. Precisely, the dispute in this complaint is only that the OP miserably failed to handover the possession of the flat in question to the complainant within the stipulated period as mentioned in the allotment letter Ex.C-30 and as per Clause-7 of the aforesaid allotment letter dated 28.01.2010, the construction work of the flat is to be completed within 2½ years and thereafter, possession of the flat will be handed over to the complainant, but as per version of the complainant, till today the possession of the flat has yet not been handed over to the complainant and further alleged that the flat in question is not ready for delivery of possession and even the surrounding area of that colony is not properly developed by the OP as per agreement elaborated in the allotment letter.

9. No doubt, the allegations of the complainant have been controverted by the OP by taking a plea that the construction work of the flat was to be completed on 16.05.2011, but the contractor did not complete the construction work and leave the job. Despite persuasion of the OP, contractor failed to restart the construction work and ultimately, the contractor was blacklisted on 03.03.2014 and forfeited the security deposited by the said contractor and thereafter, after getting the approval from the government, new tenders have been issued and the remaining construction work will be completed soon. The aforesaid plea has been taken by the OP in Para No.2 of the Preliminary Objections, but again the OP itself took a contradictory plea in Para No.4 of the Preliminary Objections that the construction work of Flat No.28 G. F. Bibi Bhani Complex has already been completed and intimation regarding that was given to the complainant, vide letter dated 08.09.2016 and then again vide letter dated 16.05.2017, but despite that intimation, the complainant herself failed to come present for getting possession. It is clear that the OP itself is swimming in two boats, on one side, the OP alleged in Para No.2 that the construction work will be completed very soon and on the other hand, in Para No.4 of the Preliminary Objections alleged that the work has been already completed and intimation was given to the complainant. Though there is a contradictory plea taken by the OP, but the complainant has fairly make sincere efforts to establish the allegations made against the OP and got inspected the site, where the alleged flats are to be constructed, the said site has been inspected by Architect Joginder Singh, whose sworn affidavit is Ex.CA available on the file and his report is Ex.C-1, wherein he gave specific observation/conclusion on the last page that the flat is not ready to occupy and water supply and sewerage system is not working, sanitary and electrical fittings have not been installed properly and even surroundings within the complex are not livable, approach road and roads within the complex are not drivable, proper parking space for vehicles has not been developed, children park has not been developed, construction within the complex is still going on, the said Architect visited the spot on 19.06.2017. So, if on 19.06.2017, the flat in question is not ready for delivery, then how the plea taken by the OP in its written reply is correct one that the flat was ready for delivery, and intimation to that effect was given to the complainant on 08.09.2016 and 16.05.2017. So, if we see the case of the complainant in the light of the report of Architect, then it is clear that the OP has manipulated the aforesaid letter just to save its skin. Further, the OP has not examined any Architect or Building Expert to contradict the statement given by the Architect of the complainant namely Joginder Singh. Joginder Singh has also developed some photographs of the said area, which are Ex.C-5 to Ex.C-29, where-from we can also ascertain that the flats are still not ready for delivery of possession. As per agreement between the parties, the possession of the flat has to be delivered to the complainant within 2½ years from the date of allotment of letter, means upto July, 2012, but till today, the possession of the flat has not been delivered to the complainant, which is apparently negligence, deficiency in service as well as unfair trade practice on the part of the OP, who also caused huge financial loss to the complainant and also deprived the complainant from residing in his own flat for so many years even after spending huge amount as a price of the said flat. Not so, the OP has also caused mental agony and physical harassment to the complainant and as such, we came to conclusion that the complainant is entitled for the relief claimed.

10. We have also considered the plea taken by the OP that this Forum has no jurisdiction, but in order to give strength to this version, the counsel for the OP could not able to make any reference how this Forum has no jurisdiction, so, accordingly, this version of the OP having no force in the eyes of law.

11. In the light of above detailed discussion, the complaint of the complainant is partly accepted and OPs are directed to refund the price of the flat i.e. Rs.6,94,127/- with interest @ 12% per annum from the date of allotment i.e. 28.01.2010, till realization. Further, OPs are directed to pay compensation to the complainant for mental agony and harassment caused to the complainant, to the tune of Rs.2,50,000/- and further directed to pay litigation expenses of Rs.15,000/-. The entire compliance be made within one month 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 Jyotsna Thatai Karnail Singh

08.01.2019 Member President