BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.493 of 2023

      Date of Instt. 14.12.2023

      Date of Decision: 02.09.2024

Rajni Manrai W/o Late Sh. Pawan Manrai A-116, Thapar Centre For Research & Development Thapar College, Tehsil Patiala Distt. Patiala Punjab.

..........Complainant

Versus

Jalandhar Improvement Trust, Model Town Road, Jalandhar City. Through its Executive Officer.

….….. Opposite Party

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Sh. Jaswant Singh Dhillon       (Member)

Present:       Sh. Pardeep Kumar, Auth. Rep. for Complainant.

                   Sh. Brijesh Bakshi, Adv. Counsel for OP.

Order

Dr. Harveen Bhardwaj (President)

1.                The instant complaint has been filed by the complainant, wherein it is alleged that the complainant submitted an application No.34845 to OP alongwith all the requisite documents. The complainant was allotted LIG Flat No.178, First Floor in Vikas Scheme Indra Puram (Master Gurbanta Singh Enclave), Jalandhar in a lucky draw dated 13.06.2006 at Jalandhar. The information regarding the allotment of LIG flat was given by OP vide its letter No.JIT/4462 dated 04.09.2006, to the complainant. The very first payment towards the earnest money of Rs.18,000/- was paid by the complainant before the allotment of flat. The complainant made the payment of the said Flat i.e. Rs.3,80,600/- by way of installments. After the entire payment of flat, the complainant and all other allottees were also asked by the OP to pay an additional costs i.e. enhanced amount alongwith additional cess charges which was paid i.e. Rs.20,022/- and total amount of the flat comes Rs.4,00,622/-.The complainant and all other allottees were called by the officials of the OP in its office situated at Skylark Chowk, Jalandhar where the concerned official of the  OP forcefully delivered the symbolic possession of their respective flats with their threats to charge Chowkidara cost of Rs.1000/- per month for single flat and assured the allottees to provide all the basic amenities as soon as possible and got signed the memo of delivery of possession of the flats from the complainant and all other allottees. Meaning thereby, only symbolic possession was given in papers and on visiting at the spot, the complainant found that the construction material and fittings were not according to the ISI/PWD standards and without amenities and facilities like no electricity supply, a single approach road was also not proper and was quite inadequate, there was no supply of water in the flats and sewerage pipelines were not connected, there was yet no supply of electricity, sub-standard material was used in construction work, work of approach road, the works of piped LPG, were pending and no power line, electricity transformer in the above said enclave. In order to get installed power lines, electricity poles and transformers for getting power supply of residential flats, balance amount of Rs.10,28,711/- was demanded by PSPCL from JIT and the same was also not timely deposited by the JIT, rather the said amount was deposited by JIT with PSPCL only on 06.08.2012 i.e. after about three years from starting they symbolic delivery of possession by the JIT in 2009. The complainant deposited Rs.10,28,711/- on 06.08.2012 for installation of power lines and electricity poles as well as transformers. As such, the complainant and all other allottees could not shift there as the said flat was not fit for living. In this way, the complainant is suffering great financial loss and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OP be directed to provide all the promised and proposed amenities in the complex as well as in the said flat in question, which were proposed to be provided as per the Allotment Letter and Brochure of the present scheme especially to ensure two separate and proper approach roads at least 40 feet and 45' feet wide as proposed and promised, adequate supply of the water and also to ensure proper working of sewerage system as well as to remove all the defects in construction and sub-standard materials used therein and rectify the same, to construct Community Hall as per proposed construction designs and further to award penal interest @ 18% on the entire amount deposited for the flat for the period from date of respective deposits, till the date all the defects in construction and its sub-standard materials are removed and rectified, basic amenities of proper and adequate approach roads, water supply and sewerage system are provided in the said flat as the complainant could not make use of the said flat even for a single day in view of the fact that the same is not fit for human habitation due to lack of facilities of water supply and sewerage connection and further to refund the payment of enhanced amount, which was promised to be refunded and Rs.2,00,000/- towards compensation and damages for mental tension, torture and physical harassment of the complainant and Rs.10,000/- as litigation expenses or in the alternative to return the entire deposited amount of Rs.4,00,622/- alongwith interest @ 18% from the dates of making deposits till realization of this amount.

2.                Notice of the complaint was given to the OP, who filed reply and contested the complaint by taking preliminary objections that the complaint is not maintainable under the law against the OP. It is further averred that the present complaint is barred by limitation. The complainant took the flat in question on allotment vide allotment letter No.JIT/4462 dated 04.09.2006. Thereafter the complainant herself got the sale agreement executed and accepted to all the terms and conditions of the agreement voluntarily. Thereafter, the complainant herself did not turn up for taking possession of more than three years and at last the OPs itself issued intimation to the complainant for taking possession of the flat vide letter JIT/3580 dated 11.09.2009 and the possession was delivered to the allottee without any grievance or grouse or protest or objection for not providing servicing on 07.10.2009 and thus, the present complaint filed after more than three years of the allotment/sale agreement/delivery of possession to the satisfaction of allottee is barred by limitation. It is further averred that the complainant has not approached this Forum with clean hands and has concealed the facts from the Forum. It is further averred that the present complaint does not lie with the Forum. In view of the provisions of Real Estate Regulation and Development Act, 2016 whereby the Legislature has framed a Special Statute for adjudication of matters of real estate wherein the buyers of house/flat may approach the Real Estate Regulatory Authorities established under the Act ibid regarding their grievances, the present complaint is not maintainable. On merits, the factum with regard to allotment of the flat to the complainant is admitted and it is also admitted that the complainant paid the amount of the flat to the OP, 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 to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement.

4.                In order to prove their respective versions, both the parties have produced on the file their respective evidence.

5.                We have heard the Auth. Representative of the complainant and learned counsel for the OP and have also gone through the case file as well as written arguments submitted by counsel for the complainant very minutely.

6.                It is not disputed that the Flat No.178, First Floor of the development scheme Indira Puram, Master Gurbanta Singh Enclave, Jalandhar was allotted to the complainant, vide allotment letter dated 04.09.2006, which has been proved as Ex.C1/OP-1. As per the conditions of the allotment letter, the complainant paid the total amount of Rs.4,00,622/- in installments including enhanced amount. Earnest money of Rs.18,000/- was also deposited before the allotment. The complainant has proved on record the copies of the receipts of payment of installments Ex.C-2 to Ex.C-9. The grievance of the complainant is that despite taking the installments and the entire amount, the physical possession of the flat, complete in all respect, was not delivered even after repeated and continuous requests. The contention of the complainant is that standard material was not used by the OP and other civil amenities like electricity connection, water connection and gas connection were not provided to the complainant, there is no street and no proper approach to the property as per the terms and conditions as stated in the brochure and the OP has violated the terms and conditions of the allotment letter. The photocopies of news cuttings, which highlighted the conditions and progress in the Flat has been proved on record as Ex.C-44 to Ex.C-69.

7.                The contention of the OP is that the present complaint does not lie with the Forum (now Commission) in view of the provisions of Real Estate Regulation and Development Act, 2016 whereby the legislature has framed the special statue for adjudication of matter of real estate wherein the buyers of the house/flat may approach the Real Estate Regulatory Authorities established under the Act, but this contention is not tenable as per the law laid down by the Apex Court in a case titled as ‘M/S Newtech Promoters and Developers Pvt. Ltd. Versus State of UP and Others etc.’ Improvement Trust case filed before RERA not maintainable as the OP’s project not registered with RERA.

8.                Further submission of the OP is that the present complaint is time barred, hence not maintainable. The next submission of Ld. Counsel for the OP is that the complainant has herself executed the sale agreement and accepted all terms and conditions. She herself did not turn up for taking possession for more than 3 years of the sale agreement, therefore, the present complaint is barred by limitation and no cause of action has arisen to the complainant, but this contention is not tenable as the OP has relied upon the agreement to sell Ex.OP-2. Perusal of this agreement shows that this document nowhere shows that this was ever executed between the OP and the complainant. All the columns of this document Ex.OP-2 are blank. The name of the complainant nowhere finds mentioned in the entire document. There are no signatures of Chairman on behalf of the OP. It bears the signatures of witnesses only and the intended allottee/vendee. The entire document clearly shows that no agreement was ever executed between the complainant and the OP. The assertion of the OP is wrong that the complainant herself executed agreement to sell. This is no agreement in the eyes of law rather it shows the working of the OP that they obtain the signatures of the parties on blank papers and alleged the same to be agreement to sell and try to use in their defence. However, the photocopies of news publication have been proved on record by the complainant, which are from different newspapers and the same have been proved as Ex.C-44 to Ex.C-69. These news publication and the representations show that the facilities and development in the Indira Puram is incomplete, meaning thereby there is no development at all. The flat owners also wrote number of letters to the OPs and Govt. to provide development facilities, which have been proved, as Ex.C22 to Ex.C28 and Ex.C-31, Ex.C-32 and Ex.C-34 to Ex.C-36 and Ex.C38 to Ex.C-40.

9.                Vide document Ex.C-44 OP asked the allotee to take possession failing which Rs.1000/- shall be charged as Chowkidara. Symbolic possession was given forcibly vide Ex.OP-4 without completing the construction and without providing facilities. The documents i.e. news publication and letters produced by the complainant show that the construction is not complete as per condition of Ex.C-1 i.e. allotment letter. Sewerage pipes have not been connected with main line, LPG facility is not provided despite taking the charges for the same, approach road is not complete as per news publications and correspondence of the complainant with the OP. The OP has not produced on record any photograph or document or any cogent and convincing evidence from where it can be ascertained that the portable roads, water/sewerage and street lights etc. have been completed and possession has been handed over after completing the flat complete in all respect including the amenities as per Ex.C-1. Though, in written statement and in Ex.OP-4 this fact has been mentioned that possession was taken by the complainant after putting signatures and the complainant was satisfied after taking the possession, but this possession was not complete possession rather the same was symbolic possession

10.              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 as such 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.

11.              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 OP to prove that Flat in question as well as basic amenities in the entire complex have been completed in all respects.

12.              In such circumstances, as per law laid down by the Hon’ble State Commission in a case titled as “Manoj Bagroy Vs. M/s N. H. Matcon”, the symbolic and incomplete possession was given to the complainant. The complaint is within limitation and the complainant cannot be made to wait for delivery of possession for an indefinite period and his demand for refund of the amount deposited by her was justified on account of failure of OP to complete the project/flat within the stipulated time period. We are supported by the judgment of Hon'ble State Commission, Punjab Chandigarh in First Appeal No.87 of 2020 titled as ‘Jalandhar Improvement Trust versus Mahabir Prasad’ decided on 10.08.2020, wherein it has been held that ‘complainant cannot be made to wait for delivery of possession for an indefinite period and his demand for refund of the amount deposited by her was justified on account of failure of OP to complete the project/fiat within the stipulated time period Even no completion certificate or occupancy certificate has been produced on record by OP to complete the project/flat within the stipulated time period’. Thus, the complainant is entitled for the relief.

13.              In view of the above detailed discussion, the complaint of the complainant is partly allowed and OP is directed to refund the amount paid/deposited by the complainant for Flat with interest @ 9% per annum from the date of making deposits till its realization. Further, OP is directed to pay a compensation of Rs.30,000/- for causing mental tension and harassment to the complainant and litigation expenses of Rs.8000/-. The entire compliance be made within 45 days from the date of receipt of the copy of order and in case, the same is not done within 45 days, the OP shall be liable to pay additional interest @ 3% per annum to the complainant, on the amount of the Flat deposited by the complainant. This complaint could not be decided within stipulated time frame due to rush of work.

14.              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     

02.09.2024                    Member                               President