BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

 Complaint No.539 of 2019

      Date of Instt. 08.11.2019

      Date of Decision: 22.03.2023

1.       Ravinder Kaur Rajput aged about 77 years wife of Late Dilawar        Singh son of S. Harnam Singh Adhar No.3274 7053 1820.

2.       Davinder Singh Rajput, aged about 55 years son of Late Dilawar       Singh son of S. Harnam Singh Adhar No.8359 7696 6262 Mob. No:98149-28102.

          Residents of House No.8, Street No.2, New Cantt. Road,         Faridkot.

..........Complainants

Versus

The Jalandhar Improvement Trust, Near Sky Lark Chow, Jalandhar, through its Chairman/C.E.O.

….….. Opposite Party

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)                                          Sh. Jaswant Singh Dhillon       (Member)                                

Present:       Smt. Harleen Kaur, Adv. Counsel for Complainant.

                   Sh. Deepak Sidana, Adv. Counsel for OP.

Order

Dr. Harveen Bhardwaj (President)

1.                The instant complaint has been filed by the complainants, wherein it is alleged that the OP published by way of publication in various news papers that it is going to develop a world class housing complex at Jalandhar, wherein special provisions are made for economically weaker sections of the society. The OP also published that a dwelling house equipped with all the late amenities and facilities would be provided to the applicants and called upon the general public to apply for the allotment of flats/dwelling units. The OP carved out a colony by the name of Indira Puram (Master Gurbanta Singh Enclave) Jalandhar. The OP offered that the colony will be fully developed by it and it would have all the facilities of a modern colony wherein water connection, electricity connection, gas supply and security would be provided by the developer/builder i.e. opposite party and it also offered to sell the fully built up and fully developed housing dwelling units to the General Public. On being allure, S. Dilawar Singh, the husband of complainant No.1 and father of complainant No.2 applied for the same vide application No.31056 and vide letter No.JIT/4745 dated 4-9-2006 issued by the OP, a housing unit bearing LIG Flat No.166 Block A was allotted to S. Dilawar Singh, the husband of complainant No.1 and father of complainant No.2 and sale consideration was filed at Rs.3,60,000/- to be deposited in installments. The OP charged Rs.6000/- in addition to the sale consideration for the supply of piped LPG Gas Line and also burdened with Rs.14,400/- being cess charges which were also paid to the OP within the stipulated period. The complainant again received a notice No.JIT/3593 dated 11-9-2009 from the OP whereby another amount of Rs.60,066/- was illegally demanded by the OP. The said amount was to be paid in three installments of Rs.20,022/- each and another amount of Rs.2503/- was demanded as cess charges. However, the said amount was also deposited under protest in lump sum by the complainants, but it was shocked to find that the construction, which was raised at the site is of sub standard quality and there is no electric connection or water supply connection was provided at site. Even the piped LPG Gas Line was also no laid to the demised property. The construction sans basic amenities, there is no street and no proper approached to the property and even construction was also incomplete and poor quality and no security provision was made. The said flats were not fit for human habitation. It is pertinent to mention that uptil today the OPs have not issued any completion certificate regarding the flats. The OP has cheated the peoples who applied for flats. The act and conduct of the OPs caused a great deficiency in service, trade mal practice, mental agony harassment, financial loss caused by OP 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 refund the amount of Rs.3,62,000/- and Rs.60,066/- and Rs.2503/- as cess charges deposited by the complainant alongwith interest @ 24% per annum from the date of its deposit till its refund. Further OP be directed to pay Rs.5,00,000/- for causing mental tension and harassment to the complainant and Rs.25,000/- as litigation expenses.

2.                Notice of the complaint was given to the OP, who filed reply and contested the complaint by taking preliminary objections that the complaint of the complainant is not maintainable in the present form, as such, the present complaint is liable to be dismissed. It is further averred that the flat No.166. First Floor, Block-A, Vikas Scheme, Indrapuram, Jalandhar in question had been allotted to Sh.Dilawar Singh S/o Harnam Singh, R/O A/8, New Cantt Road, Tehsil Faridkot, Distt. Faridkot vide letter No.JIT/4745 dated 4.9.2006. The terms and conditions has been mentioned in the allotment letter and as per which the possession of the same shall be handed over to the allottee after making the payment of installments as well as completion of documentation by the allottee and he had also given the affidavit which is a forged and fabricated one and given the same by 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 Mast installment to be paid on 04/03/2009 and in this case after the payment of last installment, the allottee did not came forward before the officials of the OP for completion of formalities for taking the possession of the flat and the OP issued a letter bearing No.JIT/3593 dated 11/09/ informing the allottee that the flat is ready and complete and requesting the allottee to take the possession of the flat and in response, the allottee never approached the OP either for the completion of formalities or for taking of the possession of the flat. However, after a gap of 6 months from the issuance of the letter dated 11/09/2009 by the OP, a letter dated 26/03/2010 was moved by the Complainant No.2 claiming himself to be the son of the allottee and requested the OP to handover the possession of the above said flat and undertook to deposit rest of the installments i.e. Enhancement amount before 15/4/2010 and official noting was made on 26/03/2010 in the record of the OP for entrusting the file to the Engineering Branch of the OP for the purpose of handing over of possession of the flat to the allottee and thereafter on completion of necessary formalities, the Opposite Party issued a letter to the allottee bearing No. JIT/3796 Dated 26.08.2010 to informing the allottee to approach the concerned official of JIT on any working day for taking the possession of the flat to which neither the allottee nor anybody on his behalf including the present complainants appeared before the OP for taking the possession of the flat till date. The complainants were/are not the consumers of the OP & even in the complaint they have not pleaded that they are consumers of the OP, as such, the present complaint of the complainants is liable to be dismissed. It is further averred that the complainants have never brought this fact on the record of the OP till date that Sh. Dilawar Singh i.e. the Allottee of the flat had died and they are the legal representatives of the said Allottee. Even in the letter dated 26/03/2010 moved by the complainant No.2 being resident of same address as that of allottee himself, before the OP, the complainant has not informed the fact that his father had unfortunately expired on 17/2/2010 as per death certificate exhibited by the complainants themselves and the complainants have suppressed material facts and have not came to this Forum with clean hands and as such the complaint is liable to be dismissed. It is further averred that the complainants are guilty of concealment of material facts. In this case the complainants never approached OP for completion of legal formalities and documentation after the death of S. Dilawar Singh. It is noteworthy OP has intimated to the original allottee vide letter bearing No.3593 dated 11/09/2009 to take the possession of the flat and the allottee had neither taken any step nor shown any interest in taking the possession of the flat. Moreover, when the letter was moved by the complainant no.2 on 26/03/2010, the OP again acceded to the request for handing over the possession of the flat but again nobody came forward to take the possession of the flat on behalf of the allottee till date and since year 2010, no such grievance/complaint/representation of any sort has been raised or even whispered by the complainants or by the allottee till he was alive, before the OP or before higher authority as to the possession of the flat or otherwise as alleged in the complaint as to the construction being incomplete and sub standard quality, non connection of electricity/water supply and various other allegations at any point of time for a period of approximately 09 years, which fully establishes that the complainants are raising false and vague pleas at this stage without any basis against the OP for the ulterior motive and reasons best known to them after the lapse of period of more than 09 years, as such, the present complaint of the complainant is liable to be dismissed, being hopelessly time barred. It is further averred 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. It is further averred that the complainants have no locus-standi to file the present complaint against the OP as they are neither the consumers nor they have informed the OP as to the fact of death of the allottee and as to the fact of the devolution of the interest of S. Dilawar Singh (since expired) on the complainants. It is further averred that the present complaint of the complainants is not maintainable and no cause of action whatsoever has or deemed to have arisen to the complainants to file the present complaint as flat in question was allotted to Sh. Dilawar Singh and as per the record, the complainants never applied at any point of time before the opposite party to transfer the flat in the name of the legal representatives after the death of the allottee by completing the formalities and documentation which is necessary as per the rules and regulations applicable to the OP. It is further averred that even otherwise, the complaint is time barred as the OP has intimated to the original allottee vide letter bearing No.3593 dated 11/09/2009 to take the possession of the flat and the allottee had neither taken any step nor shown any interest in taking the possession of the flat. Moreover when the letter was moved by the complainant No. 2 on 26/03/2010, the OP again acceded to the request for handing over the possession of the flat but again nobody came forward to take the possession of the flat on behalf of the allottee till date and now after a gap of more than 9 years, the complainants, even though they are not consumers, filed the present false and frivolous case that too a time barred, and the statute provide the complaint is to be filed within two years from the date of cause of action, as such, the complaint is liable to be dismissed. It is further averred that now the complainants by their own acts and conduct and omission are estopped from filing this false and frivolous complaint and the same has been filed with the ulterior motive just to harass the OP and under the garb of this complaint, the complainants want to grab money from the opposite party and the true facts have been concealed by the complainants while filing the present complaint, as such, the complaint is liable to be dismissed. It is further averred that the Vikas scheme Indirapuram (Master Gurbanta Singh Enclave) has been laid down for allotment of flats for residence purposes only and from the perusal of the complaint, the address of the complainants as well as S. Dilawar Singh i.e Allottee is House No.8, New Cantt Road, Faridkot and no person whose son i.e. Complainant No.2 is already Settled as An Advocate (as admitted in the letter dated 26/03/2010 by the complainant no.2) at Faridkot would live at such a distant place in small portion of the flat (since the flats are at Jalandhar, Punjab) out of the District of his ordinary residence i.e. Faridkot which clearly establishes that the allottee purchased the flat from the opposite party for commercial purposes to be sold in the market at a higher price and never intended to reside in the same and now the present complainants claiming themselves to be the legal representatives of the allottee failed to get the higher price & they have filed the present complaint which is not maintainable under law, since the neither the allottee nor their legal representatives (if any) are consumer as per the provisions of Consumer Protection Act. Since the flat had been purchased by the allottee for commercial purposes, as such, this Forum has no jurisdiction to try and decide the present complaint of the complainants claiming themselves to be the legal representatives of the allottee who was not a consumer and accordingly, the complaint is liable to be dismissed. On merits, it is admitted that the OP issued the letter bearing No.JIT/4745 dated 11.09.2009 to the complainant, 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.                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 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 complainant namely Dilawar Singh (now deceased) was allotted LIG Flat No.166, Block-A by the OP as per the allotment letter Ex.C-4. The death certificate of the complainant (now deceased) proved on record as Ex.C-14.  As per the conditions of the allotment letter, the complainant paid the total amount of Rs.3,60,200/- in installments and Rs.6000/- was deposited in addition to the sale consideration for the supply of piped LPG gas line and Rs.14,400/- being cess charges. The complainant has proved on record the copies of the receipts of payment of installments Ex.C-5 to Ex.C-10. The value of the flat was enhanced and the complainant was asked to deposit the enhanced amount of Rs.60,066/- and Rs.2503/- as cess charges, vide letter Ex.C-11 and the complainant paid the amount of Rs.62,569/-. The grievance of the complainant is that despite taking the installments and the entire amount, the complainant was not provided with the amenities as were to be given by the OP. The OP has violated the terms and conditions of the allotment letter. As per the Clause-7 of the allotment letter Ex.C-4, the amenities and facilities were to be completed within 2½ years of the allotment and possession will be delivered thereafter, but the facilities and amenities have not been given by the OP. The matter/grievance was agitated and highlighted. The copies of the photographs have been proved as Ex.C15 to Ex.C19.

7.                The counsel for the OP submitted that the complaint is not maintainable as the same is time barred. The complainant was asked to take possession vide letter dated 11.09.2009. It is further submitted by counsel for the OP that when the letter was moved by the complainant No.2 on 26.03.2010 for possession, the OP again acceded to the request for handing over the possession of the flat vide letter dated 26.08.2010 but again nobody came forward to take the possession of the flat and after 9 years the present complaint has been filed by the complainant complaining about the maintenance of the site and water supply without any basis. These allegations are wrong and have been concocted one. The complainant had purchased the flat for commercial purposes and now he is not getting the profit therefore he has filed the present complaint.

8.                The contention raised by the OP that the original allottee purchased the flat from the OP for commercial purpose, as such, this Forum has no jurisdiction to try and decide the present complaint, is not tenable as the OP has not filed on record any document nor has proved this fact nor has examined any witness to prove that the complainant has got allotted the flat for the commercial purposes. It has been held by the Hon’ble Chandigarh State Consumer Disputes Redressal Commission, U. T., in a case titled as “Usha Rani Vs. Puma Realtors Pvt. Ltd. & Ors.” 2017 (3) CLT 566 that “Purchase of resident flat-whether complainant a consumer held, yes- unless it is proved that he or she had booked the same for commercial purpose, purchaser is a consumer No evidence to show that plot in question was purchased by complainant, by way of investment, with a view to earn profit in future complainant falls within definition of ‘consumer’.”

9.                The contention of the OP is that the OPs wrote a letter to the complainant on 11.09.2009 Ex.OP-3 vide which the allottee was asked to take the possession within 30 days from the issuance of this letter and depositing of the balance amount. The contention of the complainant is that he has already written the letter to the OP for issuance of possession after depositing the entire amount, but the OP did not obtain the occupation and completion certificate from the competent authorities to enable them to deliver the complete and effective possession to the allottees. Perusal of Ex.OP-4 shows that on 26.03.2010, the complainant has informed the OP that all the installments have already been deposited by the complainant and as per Ex.OP-5, the complainant committed to deposit the enhanced amount prior to 14.04.2010. As per Ex.OP-6, the OPs wrote a letter to the complainant to get the possession and as per Ex.OP-7 the enhanced amount was deposited by the complainant. No completion certificate has been filed on record by the OP. It has been held by the Hon’ble Pb. 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 and 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.

10.              Thus, in view of the law laid down by the Hon'ble State Commission as well as Hon’ble Chandhigarh State Commission, UT, letters for possession issued to the complainant without amenities, facilities and completion certificate cannot said to be effective and complete possession and the cause of action is continuous till all the amenities are provided and completion certificate is obtained and hence the complaint is within limitation. So from all the angles the OP has failed to prove his case and thus, the complainant is entitled for the relief.

11.              In view of the above detailed discussion, the complaint of the complainant is partly allowed. From the documents produced on record by both the parties, it is evident that partial possession was handed over to the complainant without the development work and amenities as per the conditions laid down in allotment letter. Therefore, the OP is directed to complete the development work and provide all the amenities and facilities in the flat of the complainant as per the allotment letter and brochure of the present scheme alongwith approach road within three months. They are further directed to complete the procedure of completion of all the legal documents, failing which OP is directed to return the entire deposited amount of Rs.3,62,600/- and Rs.62,569/- i.e. enhanced amount demanded by OP vide letter Ex.OP-3, in total Rs.4,25,169/- alongwith interest @ 9% per annum from the date of making deposits till its realization. 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.30,000/- and litigation expenses of Rs.5000/-. The entire compliance be made within 45 days from the date of receipt of the copy of order. 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     

22.03.2023         Member                          Member             President