BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, JALANDHAR.
Complaint No.12 of 2019 Date of Instt. 08.01.2019 Date of Decision: 19.01.2021
Neelam Kalsi D/O Sh. Harbhagwan Kalsi, L3, Model Town Teh. Banga, District Nawan Shahar, Shaheed Bhagat Singh Nagar, Punjab.
….. Complainant
Versus
Jalandhar Improvement Trust, Model Town Road, Jalandhar City, through its Executive Officer.
..…Opposite party
Complaint under the Provisions of Consumer Protection Act.
QUORUM:
SH.KULJIT SINGH, PRESIDENT
MRS.JYOTSNA, MEMBER
ARGUED BY:
For Complainant : Smt. Harleen Kaur, Advocate
For OP : Sh. M. S. Sood, Advocate
ORDER:-
KULJIT SINGH, PRESIDENT
The present complaint has been filed by complainant Neelam Kalsi against the OP on the averments that she was allured by OP venture for development of Bibi Bhani Complex LIG Flats to provide shelter to needy public with ultra-modern facilities with quality and standard of construction. She submitted application no.69382 on prescribed form to OP along with all requisite documents and completed all requirements. She was allotted LIG Flat no. 42-A, Second Floor, Vikas Scheme 51.5 Acre (Bibi Bhani Complex) Guru Amar Das Nagar, Jalandhar on 16.08.2009 in lucky draw dated 16.08.2009 at Red Cross Bhawan, Jalandhar. The information regarding the allotment of LIG Flat was given by OP vide its letter no.JIT/7862 dated 28.01.2010 to her. She paid whole purchase price of the flat in sum of Rs.6,14,949/- to OP as per allotment letter dated 28.01.2020. The OP had not given possession of the flat to her even after protracted follow up and lapse of more than seven years from the date of allotment. OP was unable to give any valid reason and justification for unpardonable delay and non delivery of possession and assured to her till date. The delay in delivery of possession as per se attract odium of deficiency, negligence and unfair trade practice on the part of OPs. Therefore, she filed the present complaint and prayed that OP be directed to refund Rs.6,14,949/- deposited by her with interest @ 18% p.a from the date of deposit till actual payment, besides Rs.1,00,000/- as compensation for mental harassment, Rs.10,000/- as cost of litigation and other expenses.
2. Upon notice, OP appeared and filed its written reply and contested the complaint of the complainant by raising preliminary objections that the complainant has concealed true facts from this Forum and got notice issued to the OP without any legal basis. The notice thus issue is liable to be withdrawn. It is further alleged that the complainant has violated the terms of Punjab Town Improvement, 1983 which govern the relationship between the parties to the present dispute. That the OP vide letter No.2406 dated 17.10.2018 had informed the complainant regarding the availability of the flat in dispute for immediate occupation by the complainant. It was required of the complainant that the necessary formalities as require under the law be completed and the possession of flat No.42 ASF in development scheme 51.5 Acre be obtained by the complainant. The complainant neither appeared in the office of the OP for obtaining the possession of the flat in dispute nor the complainant acknowledged the receipt of letter mentioned above. The letter dated 17.10.2018 mentioned above is Ex.OP1. That the OP had earlier also written a letter all the above lines bearing No.7292 dated 23.05.2017 requiring the complainant to take the possession of the flat in dispute but the complainant neither attended the office of the OP on 30.05.2017 nor acknowledge the receipt of letter mentioned before. The letter dated 23.05.2017 is Ex.OP2. That the complainant has miserably failed to comply with the law and the rules which govern the possession of the flat in dispute. On merits, it is admitted that the flat in question has been allotted to the complainant and complainant has also 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 those of the written statement.
4. In order to prove their respective versions, both the parties produced on the file their respective evidence.
5. We have heard learned counsel for the parties, examined written arguments filed by complainant and have also gone through the record very carefully.
6. The complainant has brought on the file her affidavit Ex.CA in support of her case. She alleged deficiency in service and unfair trade practice on the part of OP. She alleged OP had not given possession of the flat to her even after protracted follow up and lapse of more than seven years from the date of allotment. OP was unable to give any valid reason and justification to her till date. The delay is tainted with malafide and arbitrariness. Ex.C-1 is copy of allotment letter no.7862 dated 28.01.2010 issued to complainant. Ex.C-2 to Ex.C-13 are copies of receipts of payments of different dates. To counter this evidence of complainant, OP relied upon affidavit of Surinder Kumari E.O as Ex.OPA in support the case of OP. Ex.OP-1 Letter No.JIT/2406 Dated 17.10.2018, Ex.OP-2 Letter No.JIT/7292 dated 23.05.2017 and Ex.OP-3 Letter No.JIT/2839 dated 30.11.2018. This witness stated that the complainant has herself defaulted in taking possession. The delivery of possession depends upon willingness of taker of possession. She denied any deficiency in service on the part of OP.
7. This fact is admitted by complainant that she was allotted LIG Flat no. 42-A, Second Floor Vikas Scheme 51.5 Acres (Bibi Bhani Complex) Guru Amar Dass Nagar Jalandhar. This fact is also proved vide document Ex.C-1 allotment letter no.7862 dated 28.01.2010 placed on record. Once, the complainant entire price of the flat i.e. Rs.6,14,949/- to OP as per allotment letter dated 28.01.2010, then it is duty of OP to deliver the possession to allottee, but same was not done by OP. The OP pleaded in its written reply that complainant neither write any letter to OP nor visited the office nor evinced intention to take possession rather OP wrote letter JIT/2839 dated 30.11.2018 to complainant to take possession. OP was unable to give any valid reason and justification for unpardonable delay and non-delivery of possession agreed and assured to complainant till date. The delay in delivery of possession per se attract Odium of deficiency, negligence and unfair trade practice envisaged under the CP Act. The delay is tainted with malafide and arbitrariness and purpose behind the curtain is to be prolonged the delivery of the flat in question to complainant, who needs the shelter to live in comfortably. The delay on the part of OP cannot be condoned because there exist no adequate and sufficient reason for non-delivery of possession promised within scheduled period of time.
8. In case the possession of the acquired property is not with OP then it is an unfair trade practice on the part of OP to launch the scheme and to collect the money from various applicants. The Government had issued letters to various Improvement Trusts in the State of Punjab i.e. Memo No. 6/44/05-4LG2/16729-90 dated 21.10.2005 wherein after giving a reference of the instructions issued vide letter No. 66-I-30II- 83/7070-7090 dated 23.2.1983 directions were given to all the Trusts to allot/sell only such plot/land, the site which is available with the Trust free from all encumbrances and it was further mentioned that before the process of allotment/auction of the site is commenced, Chairman and Executive Officers will certify on the record that physical possession of the site of proposed allotment/auction free from all encumbrances/obstructions is readily available for onwards transfer to the prospective allottee/buyer and that there is no physical obstruction to start the construction activities.
9. Hon’ble State Commission, Punjab Chandigarh has decided this point in its judgment titled as Karamjit Singh Vs. Jalandhar Improvement Trust & others, decided on 04.12.2015, wherein OPs are directed to refund the amount which has deposited by complainant with interest. Jalandhar Improvement Trust had filed an appeal before the Hon'ble National Commission i.e. Appeal No. 1215 of 2014 i.e. "Jalandhar Improvement Trust, Jalandhar & Anr. Versus Munish Dev Sharma" alongwith F.A. No. 1261 of 2014 i.e. "Jalandhar Improvement Trust, Jalandhar & Anr. Versus Sanjay Gupta" against the order passed by the Principal Bench in CC No. 81 of 2013. In that judgment, the Hon'ble National Commission observed that Ops had invited the applications from the general public and after taking the substantial amount of money issued the allotment letter, however, they had failed to deliver the possession for a period of more than 3 years. A reference was also given to the writ petitions filed by the land owners before the Hon'ble High Court in which order of status quo regarding possession was ordered and it was observed that at the time of launching the scheme, Ops were not in possession of entire land, which amounted to unfair trade practice as defined under Section 2(1)(r) of the Act. After relying upon the judgments in "Bangalore Development Authority Vs. Syndicate Bank" (2007) 6 Supreme Court Cases 711 and "Ghaziabad Development Authority Vs. Balbir Singh", (2004) 5 Supreme Court Cases 65, "Bikaner Urban Improvement Trust Vs. Mohan Lal" 2010 CTJ 121 (Supreme Court) (CP) and "Dilbagh Rai Jarry V. Union of India", 1973 (3) SCC 554 upheld the order passed by the State Commission. It was observed that the appeal is nothing but a gross abuse of process of law and same was dismissed with punitive cost of Rs. 5 lacs and its SLP No. 23471 of 2015 in Civil Appeal No. 9294 of 2015 "Jalandhar Improvement Trust & Anr. Versus Munish Dev" was also dismissed by the Hon'ble Supreme Court. Therefore, the view of this State Commission has been upheld up to the Hon'ble Supreme Court that in case Ops had indulged in unfair trade practice then the refund of the amount taken by Ops is a valid order.
10. From perusal of entire record of the file, it has transpired that complainant submitted application no.69382 on the prescribed form to OP along with all the requisite documents and completed all the requirements. She was allotted LIG Flat no.42-A, Second Floor, Vikas Scheme 51.5 Acre (Bibi Bhani Complex) Guru Amar Das Nagar, Jalandhar on 16.08.2009 in lucky draw dated 16.08.2009 at Red Cross Bhawan Jalandhar. The information regarding allotment was given to OP on 28.01.2010. The complainant paid while price of the flat i.e. Rs.614949/- to OP as per allotment letter dated 28.01.2010. But OP had not given possession of the flat to complainant even after lapse of more than seven years from the date of allotment. OP was unable to give valid reason for non-delivery of the possession agreed and assured to the complainant. On the other hand, OP submitted that complainant neither write any letter to OP nor visited the office of OP rather OP wrote letter JIT/2839 dated 30.11.2018 to complainant to take the possession. Therefore, in these circumstances the complainant is entitled to seek refund
11. Keeping in view the totality of the facts and circumstances of the case and plethora of judgments mentioned above, the present complaint is allowed to refund Rs.6,14,949/- which has deposited by complainant with interest @ 9% interest from the date of deposit till its actual payment. The complainant is also entitled Rs.10,000/- as compensation for mental harassment and Rs.5000/- as costs of litigation.
12. The compliance of the order be made within one month from receipt of copy of this order. Copies of the order be sent to the parties, as permissible, under the rules.
13. File be indexed and consigned to the record room.
Dated : (Jyotsna) (Kuljit Singh)
19.01.2021 Member President
