BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.14 of 2023

      Date of Instt. 12.01.2023

      Date of Decision: 05.04.2024

Rajni Thapar @Rjni Damana, aged 47 years, wife of Shri Dinesh Thapar, R/o 206, Thakur Singh Colony, Bashirpura, Tehsil and District Jalandhar, at present resident of 135-A, Street No.3, Preet Nagar, Ladowali Road, Jalandhar.

..........Complainant

Versus

Jalandhar Improvement Trust, Jalandhar through its Chairman/Administrator.

….….. Opposite Party

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)

                   Sh. Jaswant Singh Dhillon       (Member)                                

Present:       Sh. R. K. Arora, Adv. Counsel for the Complainant.

                   Sh. M. S. Sood, Adv. Counsel for the OP.

Order

Dr. Harveen Bhardwaj (President)

1.                The instant complaint has been filed by the complainant, wherein it is alleged that the complainant is resident of above address. A LIG Flat no.123, Second Floor, Block-A Jalandhar under 13.96 acres development scheme of Jalandhar Improvement Trust, which was named as Indira Puram (Master Gurbanta Singh Enclave) to be constructed near Village Salempur Musalmana, Tehsil and District was orginionally allotted to the allottee Rekha wife of Manoj Kumar, 206, Thakur Singh Colony, Bashirpura, Jalandhar for a total sum of Rs.3,70,200/- vide allotment letter no.JIT/4458 dated 04-09-2006 by Jalandhar Improvement Trust, was later transferred in the name of the complainant Rajni Thapar, who is now also known as Rajni Damana, vide its letter bearing no.JIT/657 dated 15-05-2014. The said L.I. G. was transferred in the name of the complainant on the same terms and conditions on which it was earlier allotted to its original allottee Rekha wife of Sh. Manoj Kumar. The very first payment towards the earnest money of Rs.18,000/- was paid by allottee before the allotment of flat, which was also acknowledged by the OP in above said allotment letter. As per the clause No.15 of the allotment letter, the allottee was required to deposit subsequent installments from time to time, as such, the installments were paid by the allottee, towards the sale price of the flat that comes Rs.3,70,200/-. After the entire payment of flat in the above manner, the above said allottee was also asked by the OP vide its letter bearing No.3265 dated 11.09.2009 to pay an additional costs i.e. enhanced amount of Rs.60,066/- alongwith additional cess charges of Rs.2503/- thereon, which was paid by the complainant and total amount comes to Rs.4,32,769/-. However, on continuous and constant protest by allotees, the said enhanced amount was first reduced after admitting calculation mistake and later on, it was totally waived and promised to refund the enhanced amount but the said enhanced amount was not refunded. The above said flat was transferred on making the payment of Rs.21,600/- and flat was transferred vide letter no.JIT/657 dated 15.05.2014 and the total amount of Flat comes to Rs.4,54,369/-. The allottee had approached the concerned officials of the OP for demanding possession vide her letter dated 20-4-2009. The concerned officials of the OP were also asked for completion of the paper formalities as described in the terms and conditions of the allotment letter. 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 the scheduled time period of 2½ years from the allotment of flat as mentioned in clause no. 7 of the allotment letter, which means, the possession was to be given in and around March, 2009. All the payments, fees, costs of documentation and interest on the delayed payments towards the sale price of the flat as well as enhanced costs, were made as the per the demands raised by the officials of the OP, but the possession of the flat was not given to the allottee even after repeated and continuous requests. However, again another written request dated 23-09-2009 was given by the allottee. However, in the month of September, 2009, the OP had commenced to write offer letters for delivery of possession of the flats to the flats owners. The present allottee as well as all other allottees were called by the officials of the OP in its office situated at Skylark Chowk, Model Town Road, Jalandhar, where the concerned officers of the OP got signed the memo of delivery of possession of the flat from the complainant and all other allottees. Meaning thereby, only symbolic possession was given in papers and however, after a couples of days, the complainant and some other allottees were called at the spot for delivery of physical possession of the flat and on visiting at the spot, they found the construction material and fittings were not according to the ISI/PWD standards. Furthermore, the said flats were not fit for human habitation as there was 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, 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. Further, it is very interesting as well as important to highlight that at the time of delivery of possession vide the above said meno, there was no power line, electricity transformer in the above said colony and 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 Punjab State Power Corporation Ltd. (in short PSPCL) from Jalandhar Improvement Trust and the same was also not timely deposited by JIT, rather the said amount was deposited by JIT with PSPCL only on 06-08-2012 i.e. after about three years from starting the symbolic delivery of possession by the JIT in 2009. And in this regard, documents obtained from the concerned department under RTI Act are sufficient to prove the above said facts. After getting the above said deposit of Rs.10,28,711/as on 06-08-2012, PSPCL also took a considerable time in order to install the power lines and electricity poles as well as transformers and consequently, the electricity supply was made available thereafter. In this way, it also stand proved on record that in the absence power supply, the water supply through ‘Tullu Pump’ was also not functional in the said Colony at the time of delivery of symbolic possession in the year 2009 and the same could be possible only upon supply of electricity in the year 2013. Now, in this way, it also stand proved on record that false memo of possession were got signed from the complainant and all other allottees, wherein it was incorrectly got mentioned that wood work, internal water supply, sewerage electrification and construction work is satisfactory. 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 as his hard earned money lying blocked with the OP and the complainant is not getting interest on the entire payment made to the OP whereas the OP used to charge interest at the rate of more than 18% per annum in case of any delayed payment 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 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, Piped LPG supply, 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 in the alternative refund the entire deposited amount of Rs.4,54,369/- alongwith interest @ 18% from the dates of making deposits till realization of this amount alongwith compensation on account of physical and mental harassment amounting to Rs.2,00,000/- plus cost of litigation to the tune of Rs.35,000/- for the present complaint.

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 hopelessly time barred and the flat in dispute was allotted to Rekha w/o Manoj Kumar & was given the physical possession of flat in dispute vide application dated Nill. The possession was handed over physically of flat in dispute. The flat in dispute was handed over to Rekha w/o Manoj Kumar in perfect condition with all amenities as contracted. It is further averred that Rekha w/o Manoj Kumar did not dispute as to any amenities over the site in dispute. On application of Rekha w/o Manoj Kumar the site in dispute was transferred to the present complainant. The complainant undertook possession of flat in dispute from Rekha and complainant never raised any dispute as all amenities were provided as per contract. On merits, the factum with regard to allotment of the flat to the original allottee and thereafter transferred the said 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 arguments from learned counsel for the respective parties 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.123, Second Floor of the development scheme Indira Puram, Master Gurbanta Singh Enclave, Jalandhar was allotted to the original allottee namely Rekha, vide allotment letter No.JIT/4458 dated 04.09.2006, which has been proved as Ex.C2. It is also not disputed that the said flat was transferred to Rajni Thapar, the complainant vide letter No.JIT/657 dated 15.05.2014 Ex.C-3 for a sum of Rs.21,600/- and receipts of transfer fee are Ex.C12 and Ex.C13. As per the conditions of the allotment letter, the complainant paid the total amount of Rs.3,70,200/- in installments and earnest money of Rs.18,000/- was deposited before the allotment. The complainant has proved on record the copies of the receipts of payment of installments Ex.C-4 to Ex.C-9. The value of the flat was enhanced and the allottees were asked to deposit the enhanced amount of Rs.62,569/-, vide letter dated 11.09.2009 Ex.C-10 and the complainant paid the same vide receipt Ex.C-11. 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/clips, which highlighted the conditions and progress in the Flat has been proved on record as Ex.CB/3 and Ex.CB/45.

7.                The contention of the OP is that the present complaint is time barred and hence not maintainable, but this contention is not tenable as the news publication and representations made by the residents have been proved on record by the complainant, which are from different newspapers and the representations of the society and the same have been proved as Ex.CB/3 and Ex.CB/45. 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. Ex.C-19, written by OP, show that the water supply and sewerage, electricity connection is not complete even the construction of roads is also not complete. As per Ex.C-19 no electricity connection was supplied nor the work of laying lines was complete. Ex.C-20 show that the agreement regarding 45 feet wide approach road was also not executed in 2018 nor the matter was settled. The complainant has also got inspected the complex from a builder expert on 14.11.2022 and report of the same dated 22.11.2022 shows that the said complex is not fit for human habitation, which is evident from Ex.CB/46 to Ex.CB/66. No affidavit or report of any expert in rebuttal has been produced by the OP. The OP has produced on record only documents Ex.OP-1 which shows that the physical possession of the flat in dispute was given to original allottee Rekha, Ex.OP-2 and Ex.OP-3 Possession Slip and Ex.OP-4 i.e. Transfer Letter showing the flat was transferred in the name of the complainant.

8.                Ex.CB/34 is the letter asking the allotee to take possession failing which Rs.1000/- shall be charged ac Chowkidara. Symbolic possession was given forcibly, which is evident from the documents produced by the complainant show that the construction is not complete as per condition of the 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. The OP has not produced on record any photograph or document from where it can be ascertained that the portable roads, water/sewerage and street lights etc. have been completed. Though, in written statement and rejoinder this fact has been mentioned that possession was taken and the complainant was satisfied after taking the possession, but this possession was not complete possession rather the same was symbolic possession. 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.

9.                In the present complaint also the amenities are not complete despite the entire amount was paid by the complainant. As per the allotment letter, the conditions have not been complied with by the OPs as the Flats were not ready within prescribed period, therefore the fault is of the OPs. 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 they had handed over the possession of the flat complete in all respect including the amenities as per the condition of Ex.C-2. The OP 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. 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.

10.              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 him 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 him 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.

11.              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.5000/-. 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.

12.              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    Jyotsna               Dr. Harveen Bhardwaj     

05.04.2024         Member                          Member                President