BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JALANDHAR.
Complaint No.317 of 2017 Date of Instt. 01.09.2017 Date of Decision: 12.01.2021
Nirmal Singh Aged 69 Years S/o Sh. Mohinder Singh, Resident of VPO SARAI KHAS PATTI BURRA, KARTARPUR, TEHSIL & DISTRICT JALANDHAR, Punjab.
….. Complainant
Versus
Jalandhar Improvement Trust, Model Town Road, Jalandhar, 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 : Sh. Harpal Singh Chahal, Advocate
For OP : Sh. Brijesh Bakshi, Advocate
ORDER:-
Per KULJIT SINGH, PRESIDENT
The present complaint has been filed by complainant Nirmal Singh against the OP on the averments that he was allured by OP’s 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. He submitted application no.71541 on prescribed form to OP along with all requisite documents and completed all requirements. He was allotted LIG Flat no. 52-A, First Floor, Vikas Scheme 515 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/7973 dated 28.01.2010 to her. He paid whole purchase price of the flat in sum of Rs.564800/- to OP as per allotment letter dated 28.01.2010. The OP had not given possession of the flat to him 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.5,64,800/- deposited by her with interest @ 18% p.a from the date of deposit till actual payment, besides Rs.50,000/- 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 complaint is not maintainable. The present complaint does not lie with the Forum. The present complaint is an abuse of process of law. The complainant is barred by his own act, conduct, laches and negligence from filing the present complaint and claiming the relief as prayed in the present complaint. 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. The complainant tendered in evidence her affidavits Ex.CA & Ex.CB along with copies of documents Ex.C-1 to Ex.C-12 and closed the evidence. To refute this evidence, OP tendered in evidence affidavit as Ex.OA alongwith some documents Ex.O-1 to Ex.O-3 and closed the evidence.
4. We have heard learned counsel for the parties, examined written arguments filed by complainant and have also gone through the record very carefully.
5. The complainant has tendered in evidence his affidavit Ex.CA in support of his case. He alleged deficiency in service and unfair trade practice on the part of OPs. He 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 him till date. The delay is tainted with malafide and arbitrariness. Ex.C-B is additional affidavit of complainant on the record. Ex.C-1 is copy of allotment letter no.7973 dated 28.01.2010 issued to complainant. Ex.C-2 to Ex.C-12 are copies of receipts of payments of different dates. To counter this evidence of complainant, OP relied upon affidavit of Jatinder Singh E.O as Ex.O-A in support the case of OP. This witness stated that the complainant has himself defaulted in taking possession. The delivery of possession depends upon willingness of taker of possession. He denied any deficiency in service on the part of OP.
6. This fact is admitted by complainant that he was allotted LIG Flat no. 52-A First 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.7973 dated 28.01.2010 placed on record. Ex.O-2 is agreement for sale executed between the parties. Both parties are bound by the terms and conditions of the agreement. Para no.3 of the agreement is reproduced as under :-
“Possession of the semi-finished flat shall be delivered by the Trust to the intended allottee/vendee on “As is where is basis” after the later has paid all dues including difference of reserve price from tentative cost furnished/executed all documents as required/prescribed by the Trust under the rules. The Trust shall not entertain any complaint whatsoever regarding cost of flat its design and quality of material used, workmanship or any other defect. The Trust shall also not entertain any request for addition and alteration in the building of the flat. The intended allottee/vendee agrees and undertakes not to make such request/complaint aforesaid and shall accept the possession of the flation “As is where is basis”. He shall maintain the flat at his own costs in satisfactory conditions after possession thereof is taken by him.
The above said term not complied by OP. Once, the complainant entire price of the flat i.e. Rs.564800/- 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/6985 dated 18.05.2017 to complainant to take possession, but the complainant himself did not turn up to take the possession and as such, the complainant himself defaulted by not coming forward to take the possession of the flat as per terms and conditions of the allotment letter. No doubt, the OP has sent the said letter dated 18.05.2017 to the complainant. If we go through the said letter dated 18.05.2017, then we can adjudge without any hesitation that the OP has not mentioned in the letter that the construction work of the flat is totally complete with all amenities and necessity of the life, simply giving offer to take the possession, is not sufficient because as per allotment letter, the other facilities are also to be provided to the allottee, but in this case, the complainant has established on the file that since a day of allotment of letter i.e. 28.01.2010, the OP has miserably failed to complete the construction within a stipulated period of 2 ½ years. 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.
7. No document has been placed on the record by Ops showing the demarcation of the plots or giving possession of any plot in favour of any person. In case the possession of the acquired property is not with Ops 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.
8. 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.
9. From perusal of entire record of the file, it has transpired that complainant submitted application no.71541 on the prescribed form to OP along with all the requisite documents and completed all the requirements. He was allotted LIG Flat no.52-A, First 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.564800/- 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/6985 dated 18.05.2017 to complainant to take the possession, but the OP has not mentioned in the letter that the construction work of the flat is totally complete with all amenities and necessity of the life, simply giving offer to take the possession, which is not sufficient. Therefore, in these circumstances the complainant is entitled to seek refund
10. 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.5,64,800/- 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.
11. 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.
12. File be indexed and consigned to the record room.
Dated : (Jyotsna) (Kuljit Singh)
12.01.2021 Member President
