BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.374 of 2015

Date of Instt. 28.08.2015

Date of Decision: 18.07.2017

Rajat Grover aged 30 years son of Shri Ashok Kumar Grover r/o 23, Ground Floor, Saraswati Vihar, Jalandhar. ..........Complainant

Versus

Jalandhar Improvement Trust, Jalandhar through its Chairman/Executive Officer.

.........Opposite party

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh, (President)

Sh. Parminder Sharma (Member)

Present: Sh. Vipin Kanwar, Adv Counsel for complainant.

Sh. Brijesh Bakshi, Adv Counsel for OP.

Order

Karnail Singh (President)

1. This complaint presented by complainant, wherein alleged that the opposite party launched a scheme under the name and style of Guru Gobind Singh Avenue, 94.5 Acres at Jalandhar and carved out various plots in the said scheme. A draw was conducted by the OP and plot No.113 area approximately 250 sq. yards comes to one Mrs. Shimla Rani wife of Shri Sushil Kumar Puri, by way of draw and allotment letter was issued bearing No.6448 dated 18.06.1998. That the said plot was purchased by the complainant in resale in the year 2003 and OP transferred the same in favour of the complainant on 19.02.2003, vide transfer letter No.19204 meaning thereby the complainant stepped into the shoes of Shimla Rani and all the terms and conditions mentioned in the allotment letter are binding upon the parties to the complaint.

2. That needless to mention all the terms and conditions of allotment letter however the same is attached herewith which may be read as part and parcel of this complaint. A site plan was submitted with the OP by the complainant and same was sanctioned vide No.2973 dated 30.08.2005. While sanctioning the plan, the OP directed the complainant to complete the construction before 31.12.2005 and accordingly construction was completed and letter was written on 26.12.2005 to the OP, intimating them regarding completion of construction and water/sewerage connection was provided to the complainant by the OP. That inspite of various visits, the OP failed to issue completion certificate to the complainant for the reasons best known to the OP and more so the officials of the OP visited the spot and checked the construction. However, OP informed the complainant that they have completed the construction within the prescribed period and the complainant thought that now all the formalities have been completed.

3. That to the utter surprise of the complainant that on 20.06.2013, the complainant received a letter No.1066 vide which the OP demanded a sum of Rs.1,65,500/- on account of non completion charges which is totally illegal, because the OP claiming that they completed the construction in the year 2010 as electricity bill was submitted by the complainant for the year 2010. This reason is totally baseless because it does not mean that electricity connection was taken by the complainant in the year 2010 and same year can be treated for the year of completion of construction. From 2006 to 2010, no letter or notice was ever issued by the OP to the complainant regarding non construction fee. If we go through the letter No.2973 dated 30.08.2005, no where it has been mentioned that year of completion of construction will be treated the year in which the electricity connection had taken. As per clause No.11 of the letter No.2973 dated 30.08.2005, it has been clearly mentioned that water and sewerage connection will be given on the completion of construction and in the month of October, 2005, water and sewerage connection were provided by the OP, wherein clearly mentioned that they are aware that construction has been completed by the complainant, had there been in complete construction or non construction on the part of the complainant then said connection would have not been issued by the OP to the complainant.

4. That again to the utter surprise of the complainant that again a letter No.3416 dated 18.12.2014 was received by the complainant vide which the following illegal, exorbitant, ultrafine, arbitrary amounts have been demanded by the OP.

a) Non Construction Fee : Rs.1,68,750/-

b) Interest : Rs.1,34,438/-

The aforesaid amounts are illegally demanded by the OP, as the complainant is not liable to pay the same to the OP due to the own omission of the OP. There is a clear cut deficiency in service on the part of the OP because inspite of various personal visits, reminders, requests and letters, the OP had not issued the completion certificate to the complainant. Due to the illegal acts, conducts and deficient services provided by the OP, the complainant has suffered a great mental shock, stress, tension and physical pain and harassment at the hands of the OP and as such necessity arose to file the present complaint with the prayer that OP be directed to issue the completion certificate and also directed to pay compensation of Rs.50,000/- for causing undue harassment to the complainant and also directed to pay litigation expenses of Rs.25,000/-.

5. Notice of the complaint was given to the opposite party who filed a written reply, whereby contested the complaint by taking preliminary objections that the above noted complaint is not maintainable under the law against the OP, in the present form and further averred that the complainant is barred by his own act, conduct, laches and negligence from filing the present complaint and claiming the relief as prayed by him in the present complaint and further alleged that the claim of the complainant is time barred and the present complaint is not maintainable on account of limitation for the non construction charges were levied as per rules for the period 01.07.2006 to 31.12.2010, after determining the period as per letter and record produced by the complainant and taking a lenient view thereof vide letter No.1066 dated 20.06.2013. The present complaint challenging the levy of non-construction charges has been filed after the lapse of more than 2 years from the date of the levy of the non construction charges. The complainant has got no locus standi to file the present complaint against the OP. The complainant, as per his own admissions has failed to deposit the due extension fee/non construction charges and thus he has no legal right, title or authority to file and pursue the present complaint and further alleged that the complainant has got no cause of action to file the present complaint. On merits, the allotment of the plot comes to one Mrs Shimla Rani and further transferred the said plot to the complainant is admitted but the remaining allegations as made by the complainant in the complaint are categorically denied and further submitted that the real facts are that after receiving the Sanction Letter for raising construction dated 30.08.2005, the complainant applied for getting the water supply and sewerage connection for a plot on 06.09.2005 and submitted an affidavit also. The application was processed and vide letter No.5155 dated 21.10.2005, the application was allowed and permission was granted to install ½” Ferrule Water supply connection only and it was specifically mentioned therein that the sewerage connection will be provided on deposit of due fees after completion of construction on the said plot, thus, the permission of installing water connection is in no way related to the completion of construction at site. Thereafter on 28.12.2005, the complainant gave a letter to the effect that he has raised construction in excess of the sanction and that finishing touches are going on and that he will not raise any more construction and shall deposit the charges to be levied for excess construction. At his instance, the site was got checked and it was found that the wood work is not complete and the floors have not been laid as such the construction is not habitable and completion plan be submitted after completing construction. As such a letter No.JIT/7008 dated 17.01.2006 was issued to the complainant informing him that the construction is not habitable and that he should complete the construction at site and then submit the completion plan so that his application can be considered. Thereafter on 21.03.2006, the complainant submitted an affidavit that he shall complete a construction before 30.06.2006 and he also undertook that if he fails to complete the construction before the said date then he shall be liable to pay the non construction charges/extension fee beyond 30.06.2006 for the remaining period of 2006 and he also deposited the Extension Fee for up to 30.06.2006. Thereafter vide letter dated 16.04.2012, the complainant submitted that he had demolished the excess area constructed by him and also completed one living unit in his house and sought sanction of completion plan which was submitted later on by him. Now, as the approval had been sought by him for sanction of completion plan as such before that the due non construction charges were to be recovered and date was to be determined. As per the documents and on face of it, the completion plan having been submitted in 2012 the non construction fee was to be recovered for the complete period w.e.f. 01.07.2006 to 31.12.2012 however the complainant insisted that he had previously completed the habitable construction as such as per Rules/Government instructions, he was directed to produce the electricity bills vide letter No.JIT/6148 dated 13.09.2012 to determine when the date of completion of construction. It is pertinent to mention that as per the Government Instructions for the purpose of levy of non construction charges/extension fee, in case of residential buildings, the construction of one habitable room, kitchen, bathroom and water closet alongwith taking connection of water supply and electricity shall be deemed to be a complete building. Now, as in the present case, the water connection had been immediately taken and could not be related to the completion of construction and as per the site report, as above, the building was not complete and habitable at the time of inspection as such the only criteria that remained was of determining the date of installation of electricity connection. But the complainant replied that he had not preserved the electricity bills except some latest bills and that he had submitted the first water & sewerage bill to dealing hand in September, 2012. Thereafter vide his letter received on 27.05.2013, the complainant submitted the copy of Bill No.E-257-335 dated 28.04.2010 for Rs.3170/- of PSEB without address and another bill dated 29.09.2010 with the address mentioned. Thus, accordingly the extension fee was calculated for the period of remaining half of year 2006 to the year 2010 as per Rules and Government instructions along with interest as demanded of Rs.1,65,500/- was made, but the complainant has failed to deposit the same and instead filed the instant complaint which is not maintainable under the law and lastly prayed that the complaint of the complainant is without merit and the same may be dismissed.

6. In order to prove the case of the complainant, the learned counsel for the complainant tendered into evidence affidavit of complainant Ex.CA alongwith some documents Ex. C1 to Ex.C33 and closed the evidence.

7. Similarly counsel for opposite party tendered into evidence affidavit Ex.OPA alongwith some documents Ex. O1 to Ex.O21 and closed the evidence.

8. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.

9. After considering the over all circumstances as put before us, itself shows that the Plot No.113 area approximately 1250 sq. yards was originally alloted to Mrs. Shimla Rani wife of Shri Sushil Kumar Puri, by way of allotment letter No.6648 dated 18.06.1998 and admittedly she further transferred the said plot to the complainant Rajat Grover and said transfer was accepted by the OP vide letter Ex.C2, letter No.19204 dated 19.02.2003 and as per instructions elaborated in the original allotment letter Ex.C1, the construction is required to be raised within 3 years from the date of allotment otherwise allottee will be liable to pay non construction charges and till the date of transfer of the said plot, the original allottee Mrs. Shimla Rani deposited the said levy and after transfer, the complainant submitted a site plan after depositing of fee of Rs.10,550/- vide receipt Ex.C3 and then a letter for sanctioning of plan was issued to the complainant which is Ex.C4 and all the term and condition has been elaborated in the said letter and the same letter has been also proved on the file by the OP, which is Ex.O6.

10. Now question remains to be determined whether the complainant had raised the construction within a stipulated period as given to him vide letter Ex.C4 up to 31.12.2005, complainant alleged that he made the construction up to 26.12.2005 and submitted a letter Ex.C6 and even water connection and sewerage connection have been also released to the complainant regarding that he has placed on the file receipts for payment of charges of water and sewerage i.e. Ex.C28 to Ex.C33.

11. To the contrary, the OP alleged that the water connection was given to the complainant for construction purpose on 21.10.2005 with specific permission to install ½” ferrule water supply connection and no sewerage connection was provided and as per rule and regulation, copy of the same Ex.O1, if construction is not made within a stipulated period then the allottee is liable to pay extension charges/non construction charges and in this case, complainant himself submitted an affidavit Ex.O11, whereby undertook to complete the construction up to 30.06.2006, but despite that undertaking, the complainant failed to complete the construction and even the plot of the complainant was inspected by the official of the OP and found that the construction whatsoever made by the complainant is not habitable vide report Ex.O10, but the complainant alleged that he has made the construction and accordingly he was asked to submit the electricity bill, the bill submitted by the complainant relating to the year 2010 and as such the charges for levy upon the complainant from 2006 to 2010, which is exactly according to rule and regulation for which the complainant is liable to pay but he is avoiding to make the payment rather filed the present complaint, which is not maintainable.

12. If we considered the version of both the party and scanned the documents then came to conclusion that the complainant has submitted a letter Ex.C6 on 26.12.2005, whereby informed the OP that he has completed the construction over the plot but since 26.12.2005 from the date of aforesaid letter Ex.C6, the OP never bother to ask the complainant to deposit the non construction charges but firstly in the year 2013 vide letter No.1066 dated 22.06.2013, the same is Ex.C9, asked the complainant to deposit the non construction charges from year 2006 to 2010, to the tune of Rs.1,65,500/- and then again demanded the same vide letter No.3416 dated 18.12.2014 Ex.C10, the complainant was asked to deposit the said amount and accordingly also asked the complainant to submit the electricity bill and the electricity bill was submitted by the complainant for the year 2010 and that year was considered as completion of construction but we find that this criteria of the OP is not correct because the construction means built one or two room, one kitchen, bathroom and then get the supply of sewerage and water connection. It is not a necessary that electricity connection is to be installed because the OP is concerned with the completion of construction, they cannot force or ask the parties to must reside in the said constructed house, the OP has to adjudge whether the construction is complete for the purpose of residence and not to adjudge the amenities what are required to the person because it is to be adjusted by the complainant/allottee, as per his income source. So, the criteria for completion of construction from the electricity bill, produced by the complainant is not the correct criteria adopted by the OP rather the evidence brought on the file by the complainant i.e. his letter Ex.C6, whereby he informed that he has raised the construction. Furthermore, affidavit brought on the file by the OP itself, which is Ex.O9 dated 26.12.2005, whereby complainant again submitted that the construction has been done. No doubt later on, an other affidavit was given by the complainant dated 21.03.2006 Ex.O11, whereby undertook to complete the construction before 30.06.2006, but this affidavit, we find has been given due to reason as already alleged by both the party that excess construction has been made by the complainant, which is to be removed and accordingly the said affidavit Ex.O11 was given for that purpose.

13. Apart from above all the factors, there is term and condition mentioned in the site plan sanction letter Ex.C4, wherein categorically stated that the sewerage connection will be provided after the completion of construction. It is pertinent to mention here that the OP has alleged in the written statement that the said condition is sewerage and water connection but here the condition is only sewerage not water and now we have to analyze whether sewerage connection was given to the complainant or not, if given in which year because that year will be considered as completion of construction, for that purpose, the complainant has brought on the file bill of water and sewerage charges. In all the bills the charges of sewerage and water charges are separately mentioned, these bills are Ex.C28 to Ex.C33. The first bill Ex.C28 pertaining to the period April 2006 to 2007 and last bill Ex.C33 pertaining to the period 01.04.2013 to 31.12.2015. So, from the first bill, it is clear that the sewerage connection was given to the complainant prior to April, 2006, if given prior to that date then the bill Ex.C28 was issued. So, it is clearly established that the construction of the complainant was completed before June, 2006 and till then he has already paid non construction charges and therefore the charges claimed by the OP from the complainant with interest for non construction charges is illegal against the rule and regulation and therefore the said letter for demanding the said charges is set-aside.

14. The OP has also raised an other plea in the written statement that the complaint of the complainant is time barred because the non construction charges has been demanded up to 2010, whereas the instant complaint filed on 28.08.2015, after 5 years, whereas the consumer complaint is to be filed within two years from the date of accrual of the cause of action but we do not agree with this submission of the OP because the last letter of the OP is dated 18.12.2014 Ex.C10, whereby demanded the non construction charges and if reckoned the period of limitation from 18.12.2014, then the complaint of the complainant which is filed in the year 2015 is well within limitation.

15. In view of the aforesaid detailed discussion, we find much forces in the submission of the learned counsel for the complainant and therefore hold that the complainant is entitled for the relief as claimed. As an upshot of our above detailed discussion, the complaint of the complainant is partly accepted and OP is directed to issue the completion certificate to the complainant within period of one month from the date of receipt of order and OP is further directed to pay compensation of Rs.15,000/- to the complainant for undue harassment and mental tension and also directed to pay litigation expenses of Rs.5000/-. Complaint could not be decided within stipulated time frame due to rush of work.

16. 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 Parminder Sharma Karnail Singh

18.07.2017 Member President