| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, JALANDHAR Complaint No.470 of 2019 Date of Instt. 04.10.2019 Date of Decision: 26.10.2021 Priyanka Sharma daughter of Sh. Nand Kumar Sharma, resident of House No.77, Street No.3, Vivek Nagar, Jalandhar City. ….. Complainant Versus Jalandhar Improvement Trust, through its Chairman/Administrator ..…Opposite Party Complaint Under the Consumer Protection Act. Before: Sh. Kuljit Singh (President) Smt. Jyotsna (Member) Present: Sh. R. K. Arora, Adv. Counsel for the Complainant. Sh. Deepak Sidana, Adv. Counsel for the OP. Order Kuljit Singh(President) The present complaint has been filed by complainant against the OP on the averments that a LIG Flat No.84-A, First Floor, for a total sum of Rs.3,80,600/- was allotted to the complainant, vide allotment letter no. JIT/8537 dated 04.11.2008 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 OP. As per clause no.15 of the allotment letter, the allottee was required to deposit subsequent installments from time to time. Thatafter payment of all the installments of the basic price as well as enchanced amount of 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 two and half years from the allotment of the flat as mentioned in clause no.7 of the allotment letter.Meaning thereby, the possession was to be given in and around March, 2009. That upto the month of March-2009, all the payment, 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. That 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, at that time, only symbolic possession was given in papers and thereafter couple 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. That some other allottees after taking possession 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. Only symbolic possession was given in papers and on visiting at the spot, the allottees found that sub-standard material was used in construction work, work of approach road, works of piped LIG, works of water supply and sewerage connection were pending and there was no explanation from the concerned officials of OP. There was not proper work of road, there was no supply of water in the flats and sewerage pipelines were not connected. The space left for community hall is lying vacant but community hall has also not been constructed. Water supply to the flats is not proper. In the absence of aforesaid basic amenities and development facilities in the flats, condition of flats was not worth lying yet all the other allottees were forced to take possession of their respective flats on account of threats by OP to charge Chokidara cost of Rs.1000/- per month for a single flat.The complainant time and again approached the JIT authorities and requested to complete the above mentioned requirement but no action has ever been taken by the JIT even after firm assurance 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 handover possession of the flat after removing all the defects and shortcomings and further OP be directed to provide all the promised and proposed amenities in the complex as well as the said flat in question, 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, besides Rs.2,00,000/- as compensation and Rs.10,000/- as cost of litigation. Upon notice, OP appeared and filed written reply and contested the complaint of the complainant by raising preliminary objections that complaint is not maintainable. That the flat No.84-A First Floor, Vikas Scheme, Indrapuram, Jalandhar in question has been allotted to the complainant, vide letter No.JIT/8537 dated 4.11.2008. The terms and conditions has been mentioned in the allotment letter and the possession of the same shall be handed over to the complainant after making the payment of installment as well as completion of documentation by the complainant and he has also given the affidavit which is a forged and fabricated one and given the same concealing the true facts from the opposite party and it was stipulated in Allotment Letter that after the receipt of full and final payment and thereafter the possession of the flat was to be given after 2 ½ years. It was further stipulated that the possession of the flat shall be handed over after completion of the documents and in this case last installment to be paid on 04/05/2011 and after that the complainant orally requested the OP to handover the possession of the flat. That the present complaint is vague, false and frivolous to the knowledge of the complainant, as such, the present complaint is liable to be dismissed. That the complainant is not a consumer as the flat has been purchased by the complainant for commercial purposes, as such, the present complaint is liable to be dismissed. That this Commission has no jurisdiction to entertain, try and decide the present complaint. That now the complainant by her own acts and conduct and omission, filed this false and frivolous complaint just to harass the OP. 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. 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. In order to prove their respective versions, both the parties produced on the file their respective evidence. We have heard learned counsel for the parties and have also gone through the record of the case very carefully. After taking into consideration the respective submission of both the counsel for the parties, we find that the dispute between the parties is only whether the possession of the flat in question is delayed for negligence of the OP or not. The other facts in regard to allotment of the LIG Flat 84-A, First Floor, is admittedly allotted to the complainant, vide allotment letter Ex.C-2 dated 04.11.2008. The complainant alleged that as per allotment letter, the OP has to complete the construction work within 2½ years and thereafter, handed over the possession to the allottee complete in all respect i.e. alongwith amenities and ultra-modern facilities with quality of standard construction. The construction work of the flat was agreed to be completed within stipulated period as enumerated in Clause-7 of the allotment letter Ex.C-2, but in this case, the OP has not delivered the possession of the same to the complainant till today. The plea of the OP is that a letter bearing No.JIT/4764 dated 11.04.2012 sent to the complainant in which stated that the road work and construction of park is completed and also the water supply and sewerage connection are completed, but electricity connection is pending. No doubt, the OP has sent the said letter dated 11.04.2012 to the complainant. If we go through the said letter dated 11.04.2012, then we can adjudge without any hesitation that without electricity connection, how the complainant is lived 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, the OP has miserably failed to complete the construction within a stipulated period of 2 ½ years.It is pertinent to make clear here that the complainant has already deposited the entire price money of the said flat, if so, then the complainant is legally entitled to get the possession of the flat and live therein to enjoy the feeling of his own home, but from that facility, the complainant was deprived by the OP for long time. Even during the pendency of this complaint, the OP has not brought on the file any cogent and convincing evidence, whereby the OP can establish that the construction work of the flat has been already completed and the same is fit for delivery to the complainant. The opposite party has not produced the occupation and completion certificate duly issued by the competent authority showing that the basic amenities have been duly provided at the site and the allottees can start residing in their allotted flats. Even otherwise, Completion Certificate, as envisaged under section 14 of the Punjab Apartment and Property Regulation Act, 1995 (in Short "PAPRA") is the most essential document, which should have been produced with regard the matter in issue but the same has not been produced by the opposite parties to prove that flat in question as well as basic amenities in the entire complex have been completed in all respects. In the absence of Completion/Occupation Certificate, the actual and physical possession of a property cannot be legally delivered. And as such, delivery of possession by the opposite party without getting completion and occupation certificate from competent authority for the flat as well as complex in question, is no possession at all in the eyes of law. The Hon'ble National Commission in its order dated 13-06-2018 passed in First Appeal No. 855 of 2018 (Vision India Realtors Pvt. Ltd, and Another Versus Sanjeev Malhotra also categorically held that legal possession cannot be delivered in the absence of Completion Certificate by the Competent Authority. It was further held in the Para No. 5 of the said Judgment that the said offer of possession was meaningless being unlawful as the requisite completion certificate had not been obtained by that date. The opposite party has taken a false, frivolous, baseless and illogical defense in its written reply, which is legally not sustainable. On the same point, we further like to refer another pronouncement of Hon’ble State Consumer Disputes Redressal Commission, Punjab Chandigarh, in F.A. No.197 of 2020, titled as “Jalandhar Improvement Trust Vs. AashishAggarwal”, wherein it is held in Para No.15 “that there is no evidence on record that the flat, in question, or a part thereof had been got certified by the OP from the local/competent authority, so as to deliver its complete possession to the complainant for his use and occupation. By not producing Completion/Occupation Certificate issued by the competent authority, the OP committed violation of Section 14 of PAPRA”.So, in the absence of this type of evidence from the side of the OP, itself shows that the flat in question are still not ready and inhabitable for human being and due to that reason, the actually and physical possession has not been given by the OP to the complainant, which is clear cut deficiency and negligence on the part of the OP and as such, we are of the opinion that after waiting a long time, the complainant became frustrated and demanded the return of the money along with interest, compensation and litigation expenses. Further, 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 MunishDev" 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. The learned counsel for the complainant placed on record various judgments, firstly case titled as Jagpal Singh and others Vs. State of Punjab and others of Hon’ble Supreme Court of India reported in Civil Appeal No. 1132 of 2011, wherein it has been held that “land was recorded as a village pond and such land could not be allotted to anybody for construction of houses or for any other allied purposes.” The Hon’ble Supreme Court of India issued directions to all State Government in that case, that they should prepare schemes for eviction of illegal, unauthorized occupants on Gram Sabha lands and the scheme should provide for speedy eviction of such illegal occupants after giving them a show cause notice and a brief hearing. Further , case law titled as Gurpreet Singh vs. Puma Relator Pvt. Ltd and another of Hon’ble State Commission, U.T Chandigarh reported in 2015(4) CPJ 91 wherein it has been held that “ Development and amenities were incomplete at the time of offering possession. Possession cannot be said to be valid and legal possession. Refund with compensation, litigation cost and compound interest on deposited amount granted.” The case titled as Mohinder Pal Vs. PUDA, by District Consumer Forum Faridkot, in Consumer Complaint No. CC 19/156decided on 23.10.2019 wherein OPs are directed to refund Rs.15,03,125/- along with interest @ 9% pa from the date of payment till realization and further to pay Rs.10,000/- as compensation and Rs.5000/- as cost of litigation for deficiency in service or unfair trade practice on the part of OPs.” Further case titled as Mrs. Veenu Sharma and others versus RKM Housing Limited and others in Consumer Complaint No. 52 of 2020 of Hon’ble State Commission, Punjab Chandigarh decided on 07.10.2020 wherein it has been held that OPs failed to show any development at the site and actual, legal and physical possession of the plot in question has not been delivered. “ The case titled as Amar Singh versus Unitech and others of Hon’ble State Commission, U.T Chandigarh reported in 2016(2) CLT 566 wherein it has been held that “ Delay in possession – Refund claim. The complainant cannot be made to wait for an indefinite period for delivery of possession of the unit. The complainant is thus entitled to get refund of the amount deposited by him.” The case titled as Pardeep Chowdhry Versus Unitech Ltdand another reported in 2017(1) CPJ 427 of Hon’ble National Commission, New Delhi wherein it has been held that “ Delay in delivery of possession – offer of possession of incomplete flat. Flat should have been complete in all respects before possession was offered to the complainant.” The above cited judgments produced by complainant are applicable in the present case in hand. The OPs floated a scheme and sufficient period have passed and they are still ate the stage of passing the estimates to lay basic facilities i.e. water and sewerage amenities. OPs have utilized the hard earned money of the complainant without any reason. The development should be complete on site when they are going for draw of lots and giving letter of allotment. The complainant cannot be made to wait for an indefinite period for delivery of possession of the unit. From careful perusal of record, it is observed that there is no dispute regarding allotment of the plot in question and even there is no denial of the fact that the complainant has deposited the installments out of the sale consideration amount towards the cost of plot. In the light of above evidence and judgments placed on record, not only deficiency in service but also unfair trade practice attributed on the part of OPs for not handing over the possession of the plot in question and also have also completed the development work at the site despite long span of time. Therefore, we allow the complaint and OPs are directed to refund the amount price of the flat along with interest @ 9% per annum from the date of deposits, till realization and 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.10,000/- and further directed to pay litigation expenses of Rs.5000/-. The entire compliance be made within 45 days from the date of receipt of the copy of order. Copies of the order be sent to the parties, as permissible, under the rules. This complaint could not be decided within stipulated time frame due to rush of work. File be indexed and consigned to the record room after due compliance.
Announced in open Commission 26thof October 2021 Kuljit Singh (President) Jyotsna (Member) | |
