BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.235 of 2020
Date of Instt. 14.08.2020
Date of Decision: 16.12.2022
Ms. Sangeeta aged about 40 years wife of Anil Kumar and daughter of Sh. Joginder Lal resident of House NO.2258/2, Near State Bank of India, Mahan Singh Gate, Amritsar.
..........Complainant
Versus
1. Jalandhar Improvement Trust, Model Town Road, Jalandhar City Jalandhar.
2. Daljit Singh Ahluwalia, Chairman, Jalandhar Improvement Trust, Model Town Road, Jalandhar City, Jalandhar.
3. Jatinder Singh, Executive Officer, Improvement Trust, Model Town Road, Jalandhar City Jalandhar.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. Ajay Pal Singh, Adv. Counsel for Complainant.
Sh. Brijesh Bakshi, Adv. Counsel for the OPs No.1 to 3.
Order
Dr. Harveen Bhardwaj (President)
1. This complaint has been filed by the complainant, wherein alleged that the complainant has availed the services of OPs and purchased one plot measuring 356 sq. yards in Surya Enclave Extension, Jalandhar Improvement Trust, Jalandhar. Thus complainant is a Consumer of OPs. The complainant purchased a plot measuring 356 sq. yards through draw of lots for making her own house as the complainant was intending to stay in Jalandhar and thus the complainant has utilized the services of the OP and comes within the definition of consumer. The scheme was commenced from 08.08.2011. The application form, for the sale of plots was sold by all the nationalized banks and applications were also received by the branches of banks on behalf OPs. After reading the advertisement the complainant made up her mind for purchasing the residential plot in the said scheme. The complainant submitted application No.082162 with OP for purchasing 356 sq. yard residential plot under employees of State Govt./Mpl Corp./Nagar Council/IT category. The price of the said plot was Rs.17,000/- per square yards. Alongwith the application the complainant paid the earnest money of Rs.6,05,000/- i.e. 10% of the price of the plot. Thereafter the draw was conducted by the OPs on 04.11.2011 and complainant was the successful allottee and allotted plot No.2-D under the said scheme. The OPs sent a letter of allotment bearing No.JIT/4686 dated 02.04.2012 to the complainant regarding allotment of residential plot No.2-D measuring 356 Sq. Yards for a total sale consideration of Rs.60,52,000/-. After receiving the allotment letter, the complainant on 02.05.2012 deposited Rs.11,51,830/- (1/4th of the remaining amount + Cess Fee + Site Plan+ agreement fee) after adjusting amount of Rs.6,05,000/- i.e. earnest money as envisaged in the allotment letter. OPs were under obligation to immediately deliver the possession of the residential plot to the complainant. However, OPs did not perform their part of the agreement. Thereafter the complainant also paid the balance sale consideration of Rs.42,95,170/- as acknowledged by OPs vide letter dated 12.07.2016. Therefore the complainant paid the entire sale consideration to the OPs, but despite that the OPs failed to give the possession of the plot. The OP was required to give the possession immediately and also to complete the development work within two and half years i.e. upto 26.05.2014. The complainant wrote letter dated 05.03.2016, 14.11.2017 & 10.12.2018 and the complainant also approached the OP number of times to deliver the possession of the plot and also to complete the development work as promised, but the OPs put off the matter on one pretext or the other. Till date OPs have failed to deliver the possession of the said plot as per their commitments. Complainant visited the site number of times, but no sign of development was observed as per the commitments of Opposite Party. Roads are in pathetic condition roads are still unconstructed, there is no electricity connection arrangement and there is no sign of the basic amenities such as water, sewerage, park roads etc. No boundary wall is constructed as yet. People around villages are roaming around inside with their cattle, stray dogs are also there without any kind of interruption from the side of Opposite Parties which is unsafe environment to live. Till date no completion and occupation certificate has yet been obtained by the opposite parties from the competent authorities. The photographs of the project are on record. The act and conduct of the OPs is absolutely a deficiency in service and unfair trade practice and as such, the instant complaint filed by the complainant with the prayer that the complaint of the complainant may be accepted and OP be directed to deliver the vacant possession of the plot 2-D allotted to the complainant alongwith all the facilities with completion and occupation certificate and to pay interest @ 16% per annum on total amount deposited by the complainant on account of delay in giving possession to the complainant from the date of payments till actual possession and further OPs be directed to pay a compensation of Rs.20,00,000/- for causing mental tension and harassment to the complainant and Rs.55,000/- as litigation expenses or to refund the amount of Rs.70,25,220/- alongwith interest @ 16% per annum from the date of deposits till its realization.
2. Notice of the complaint was given to the OPs, who filed reply and contested the complaint by taking preliminary objections that the above noted complaint is not maintainable against the answering respondent, in the present form under the law. 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 against the opposite party. The plot in question i.e. Plot No.2-D of the Development Scheme 94.97 Acre known as Surya Enclave Extension was allotted to the complainant, vide allotment letter no.JIT/4686 dated 02.04.2012 and the complainant received and acknowledged the same. As per the terms and conditions of the allotment forming a binding contract among the parties it was clearly mentioned that the allottee has to make the payment of sale price as per the agreed installment payment schedule. As per clause 2 to 4 the interest, penal interest and other charges on account of payment of installments/delayed payment etc. were duly conveyed and agreed by allottee. It was clearly mentioned in Clause 5 that the allotee has to enter into sale agreement of the plot within 30 days and per clause 6 if he does not do so then the JIT shall be within its rights to cancel the allotment and forfeit all deposited amount. It was further clearly mentioned that the possession of the Plot can be taken after entering into sale agreement with the Trust. As per clause 13 the plot was offered as it is as per site and further it will not be the responsibility of JIT to level the uneven site. Thus the terms and conditions were very clear and it was incumbent upon the allottee to enter into sale agreement of the plot and to deposit installments in time at his own responsibility. But it is pertinent to mention here that she failed to enter into sale agreement regarding the said plot and in the absence of entering into sale agreement no rights accrued to her viz a viz the plot in question. The complainant failed to approach the OP for taking possession of the Plot although the JIT always remained ready and willing. But she failed to enter into sale agreement or take possession as per allotment letter. All the more so she failed to make the payment of even the first installment as per schedule and defaulted on her part in deposit of sale price. It is pertinent to note that as per the terms and conditions of the allotment letter it was incumbent upon the complainant to deposit the installments in time but she failed to do so. The respondent JIT issued Letter No. JIT/4795 dated 23.02.2016 to the complainant to deposit the due amount and execute sale agreement after which she can take possession. But the complainant failed to reply or comply with the same or deposit any amount. It is noteworthy that it is for the allottee to approach the Jalandhar Improvement Trust and seek possession and it is not the liability or responsibility of department/Jalandhar Improvement Trust to trace out the people and give possession to them. When any allottee/transferee does not approach the department/Jalandhar Improvement Trust to take possession the said person cannot blame the Jalandhar Improvement Trust for their own defaults. As per the allotment terms and conditions itself allotee/complainant never approached the opposite party for taking possession, the complainant was well aware of the plot details, location, scheme plan etc. and all facts and circumstances before depositing the sale price at a belated stage after receiving the aforesaid letter and it cannot be imagined even that someone will do so without even seeing the same or the surroundings/facilitates etc. The NDC was issued to her vide Letter No.JIT/1442 dated 12.07.2016, but even after that she never approached the JIT for execution of sale agreement and thus although her entitlement as per the Allotment Letter conditions does not arise to seek possession as yet the JIT never refused possession to her. From the said date of NOC till 2020 she never sought possession nor raised any objection of development etc and any such objection at this stage is clearly malafide and not maintainable. As regards the facilities and amenities the same are completed since long. However Jalandhar Improvement Trust has throughout been in a position to deliver the possession of the plot in question and has never refused to give possession to the complainant and even now Honb'le District Forum may fix any time or date and without any delay or ado the opposite party is ready to deliver the possession of the plot in dispute to the complainant. It is further averred that the present complaint is false and frivolous even to the knowledge of the complainant and is not maintainable against the opposite party. It is further pertinent to mention that there is no provision in the terms and conditions of allotment letter or sale agreement that in case of the successful applicants/allotees and transferees the surrender of the allotted plot can be made or the refund of sale money deposited or payment/part payment of the sale price can be refund to allottee/transferee. The present complaint is an abuse of process of law. No actionable claim has ever arisen to the complainant to file the present complaint. On merits, the factum with regard to allotment of the plot 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 not filed by the complainant.
4. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
5. We bestowed our thoughtful consideration to the submissions made by learned counsel for the respective parties and have also gone through the case file very minutely.
6. It is not disputed that the complainant purchased a residential plot bearing No.2-D in Surya Enclave Extension, JIT, Jalandhar as per the allotment letter Ex.C-2. After receiving the allotment letter, the complainant on 02.05.2012 deposited Rs.11,51,830/- (1/4th of the remaining amount + Cess fee + site plan + agreement fee) after adjusting amount of Rs.6,05,000/- i.e. earnest money. Thereafter the complainant also paid the balance sale consideration amount of Rs.42,95,170/-, total Rs.70,25,220/- The complainant has proved on record the copy of the payment receipts and acknowledgement receipt Ex.C-3 to Ex.C-5. The grievance of the complainant is that despite taking the entire amount, the complainant was not delivered the possession of the plot and not completed the development work as promised. Receipt of entire payment has been proved as per letter Ex.O-3. As per 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 provided by the OP. As per the contention of the complainant, she wrote letters dated 05.03.2016, 14.11.2017 and 10.12.2018 and also approached the OP number of times, but OPs failed to provide the amenities and deliver the possession. The letters have been proved as Ex.C-6 to Ex.C-8. Ex.C-9, consisting of 6 photographs, have been proved to show that the roads are in pathetic condition, internal road are still unconstructed, there is no electricity connection and no sign of basic amenities such as water, sewerage, park roads etc. No boundary wall is constructed as yet. Also till date no completion and occupation certificate has yet been obtained by the OPs from the competent authorities. This clearly shows the deficiency in service and unfair trade practice.
7. The contention of the OPs is that the complainant failed to enter into sale agreement. The complainant failed to approach the OP for taking possession of the plot although the OP/JIT always remained ready and willing. The OP issued letter No.JIT/4795 dated 23.02.2016 to the complainant to deposit the due amount and execute sale agreement as per Ex.O-2, but the complainant failed to comply the same. The letter Ex.OP-2 dated 23.02.2016 itself shows that work of the roads, water supply and sewerage system are in progress, but not completed, meaning thereby that the contention of the OP that the complaint herself failed to take the possession is totally wrong, when as per their letter ever after four years of allotment, the construction work and development is not completed.
8. 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, if received by the complainant as per letter Ex.C-6 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 the complainant is entitled to valid possession which can only be termed completed 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 if given to the complainant is delayed, 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. So from all the angles the OPs have failed to prove his case and thus, the complainant is entitled for the relief. 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 plot of the complainant as per the allotment letter alongwith approach road within three months or in the alternative OPs are directed to return the entire deposited amount of the Plot Rs.70,25,220/- alongwith interest @ 9% per annum from the date of making deposits till its realization. Further, OPs are directed to pay a compensation to the complainant for causing mental agony and harassment, 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
16.12.2022 Member President
