BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.235 of 2019
Date of Instt. 04.07.2019
Date of Decision: 12.10.2022
Kulvinder Singh son of Balwant Singh, resident of VPO Khambra, Tehsil and District 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. 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 is a consumer of the OP as the LIF flat No.50, Second Floor, Block A for a total sum of Rs.3,70,200/- was allotted to the complainant vide allotment letter no.JIT/4223 dated 04.09.2006 by JIT 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 installments were paid by the allottee i.e. the complainant, towards the sale price of the aforesaid flat, total Rs.3,70,200/-. After 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 inspite of repeated requests and demands, the possession of the flat was not delivered after scheduled time period of 2 ½ 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 March, 2009 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 complainant even after repeated and continuous requests since March, 2009. 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 complainant was also issued a letter no.JIT/309 dated 11.09.2009 offering him possession of flat and was asked to pay an additional cost of Rs.60,066/- within nine months of issuance of the above demand letter and an additional amount of Rs.2503/- was demanded towards cess charges. As such, Rs.30,122/- was paid towards additional costs i.e. enhanced amount. 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. 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, 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 allottees, 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 OP 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 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 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 March, 2009. 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. Till today, in the complex of 888 flats of Indira Puran only about 65 % allottees have taken possession of flats, 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 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 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 OP be directed to award penal interest @ 18% on the entire amount deposited for the flat for the period from March, 2009 i.e. proposed date of delivery of flat, 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 to complete the legal formalities of documentation in favour of complainant, if any, like conveyance deed, agreement of sale etc. and further to refund the payment of enhanced amount, which was promised to be refunded. 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.4,00,322/- 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 estoppel. The complaint is liable to be returned as the complainant has not come to the Commission with clean hands. The present complaint is time barred and hence not maintainable under the provision of The Consumer Protection Act, 2019. The complainant is guilty of concealing fact and hence not entitled to any relief from this Commission. The matter of the fact is that the physical possession of flat No.LIG-50 SF Block A was handed over to the complainant on 08.10.2009 in development scheme known a 13.96 acre (Master Gurbanta Singh Enclave). The possession slip signed by the complainant. On merits, the factum with regard to allotment of the flat to the complainant is 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 the counsel for the complainant, very minutely.
6. It is not disputed that the complainant was allotted LIG Flat No.50, Second Floor, Block-A by the OP in Indira Puram (Master Gurbanta Singh Enclave) as per the allotment letter Ex.C-2. 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-9. The value of the flat was enhanced, vide letter dated 11.09.2009 and the complainant was asked to deposit the enhanced amount of Rs.60,066/- and the complainant paid the amount of Rs.30,122/-, vide Ex.C-10 & Ex.C-11. The grievance of the complainant is that despite taking the installments and the entire amount, the complainant was not provided with the amenities as were to be given by the OP. 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, vide Ex.C-13 and this document was got signed by the OP from the complainant in the office only and no physical possession on the spot was given to the complainant. He has further submitted that this fact is proved from the letter dated 11.04.2012 written by the EO of the OP Ex.CB/5, the contents of which show that till 11.04.2012, the electricity connection was not given though lot of correspondence was done by the Indira Puram Welfare and Development Society with the OP to complete the development facilities in the LIG flats, but to no effect. Even in the newspapers, the news was published regarding non-providing the facilities in the flats. The letter dated 12.02.2018 Ex.CB/35 has been referred by the complainant to show that till 2018, the agreed 45 feet wide approach road was not provided on the spot. This clearly shows the deficiency in service and unfair trade practice.
7. As discussed above the facts of allotment of LIG Flat No.50 in Indira Puram (Master Gurbanta Singh Enclave) and payment of installments has 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. As per Ex.C-13 on 08.10.2009, the possession was taken by the complainant, in which he has stated that the wood work, internal water supply, sewerage, electrification and construction work is satisfactory. As per the defence taken by the OP and as per the recital mentioned in Ex.C-13, the construction work and the development with all the facilities and amenities were completed on 08.10.2009 when the possession was delivered. The news publications have been proved on record by the complainant, which are from different newspapers and these are from 2009 onwards, which have been proved as Ex.CB/3, Ex.CB/4, Ex.CB/6, Ex.CB/7, Ex.CB/8, Ex.CB/13, Ex.CB/14, Ex.CB/21, Ex.CB/22, Ex.CB/24 to Ex.CB/29. All these news publication from October, 2009 onwards show that the facilities and development in the Indira Puram (Master Gurbanta Singh Enclave) is incomplete, meaning thereby there is no development at all. The defence of the OP is shattered with the letter dated 11.04.2012 Ex.CB/5. This letter itself shows that the letter was written to Indra Puram Flat Welfare and Development Society intimating them that the roads, parks and the boundary wall have been constructed. Water supply and sewerage system has also been provided. The electrification is almost complete, but the connection is yet to be given by the PSEB and they are in touch with the department. Approach road is yet to be completed. The recital in this letter is totally contradictory to the document Ex.C13. As per Ex.C-13, on 08.10.2009 electrification and sewerage water supply was satisfactory, whereas on 11.04.2012, it was intimated that it is almost complete. This clearly shows that on 08.10.2009 only the symbolic possession was given without the amenities and development of the flats on the spot. In reply to the letter issued by the Indra Puram Flat Welfare and Development Society, the Indra Puram Flat Welfare Owners Society has written number of letters to the OP which have been proved as Ex.CB/9, Ex.CB/12, Ex.CB/15 to Ex.CB/20, Ex.CB/23, Ex.CB/30 to Ex.CB/32 and Ex.CB/36. Vide Ex.CB/34, the news has been published in the news paper Dainik Bhaskar on 08.09.2009, vide which the flat owners have been asked to take the possession of the flats till 15.10.2009, failing which they will be charged Rs.1000/- per month as Chowkidara. This news shows that it has categorically been mentioned in it that all the facilities have been provided in the flats. This information and news is against the record as till 2018 the development of the approaching roads has not been completed, which is clear from Ex.CB/35 and the facilities of the electricity connection was yet to be provided vide letter Ex.C-13. As per letter Ex.CB/10 and Ex.CB/11, it is proved that the OP itself was not clear till 29.06.2009 as to how much area was to be acquired and how much area has been acquired. Both these documents show that 60% of the area was acquired inadvertently and accordingly, the price was fixed whereas the saleable area was 43.13%. Vide these letters, the price of the flat was enhanced, meaning thereby that the contention of the OP that the development and facilities were completed till 15.10.2009 is proved false because till 29.06.2009, the exact area was not acquired by the OP.
8. The contention of the OP is that the possession was taken by the complainant, vide Ex.C-13 on 08.10.2009 upto their satisfaction and the complaint is time barred, is not tenable and the law referred by the OP has been rebutted by producing latest law on the point of limitation laid down by the Hon'ble National Commission and Hon’ble Supreme Court. It has been held by the Hon'ble National Commission in “Delhi Development Authority Vs. Jagdish Chander Luthra”, in F. A. No.335 of 2009, decided on 05.07.20012 that whenever service provider like DDA or any other organization like them enters into a contract to construct a house or flat for the consumer, it has to provide basic amenities of electricity and water and without providing these amenities if possession is taken by the consumer it has to be deemed as a part and not full possession as without these amenities it is difficult to enjoy or live in the house or the flat as it causes immense inconvenience, mental agony, harassment and physical discomfort. Thus, as per the law, laid down by the Hon'ble National Commission, the possession given on 08.10.2009 to the complainant is a part possession and not full possession. 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. It has further been observed by the Hon’ble State Commission that in the above said case that the complainant is entitled to valid possession which can only be termed complete when the same is given to him after obtaining completion and occupation certificates by OP, on completion of the project in all respects i.e. by providing effective sewerage system, water supply, electricity supply, roads alongwith other promised facilities as per the agreement and brochure.
9. Thus, in view of the law laid down by the Hon'ble National Commission and the Hon’ble State Commission, the possession given to the complainant without amenities and facilities was partial possession and was not effective possession and the cause of action is continuous till all the amenities are provided and completion certificate is obtained and hence the complaint is within limitation.
10. 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.4,00,322/- 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.
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 Jyotsna Dr. Harveen Bhardwaj
12.10.2022 Member Member President
