DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, JALANDHAR

Complaint No.573 of 2019 Date of Instt.03.12.2019 Date of Decision: 28.09.2021

Seema Saxena wife of Sh. Puneet Saxena, resident of House No.88-A, Guru Nanak Nagri, Jalandhar and presently at C/o Jawahar Navodaya Vidyalay, VPO Odhan, Sirsa 125077

….. 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) Sh. Jaswant Singh Dhillon (Member)

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

Order

Kuljit Singh(President)

1. The present complaint has been filed by complainant against the OP on the averments that a LIG Flat No. 138 Ground Floor for a total sum of Rs.3,91,000/- was allotted to the complainant, vide allotment letter no. JIT/4288 dated 04.09.2006 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, allottee was required to deposit subsequent installments from time to time. The installments were paid by the allottee i.e. complainant, which has been specifically mentioned in para no.3 of the complaint. Before and after payment of all the installments towards the sale price of the flat allotted by OP, the complainant approached officials of OP for completion of paper formalities as described in the terms and conditions of the allotment letter and OP was require to hand over possession of the flat within scheduled timeframe 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. Upto the month of March/April 2009, all the payments fee 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 since March/April 2009. 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 has not given possession of the flat allotted to him in the last 11 years and now the complainant is also not interested to wait for any other period rather the complainant is interested to get back entire deposited amount. Therefore, she had filed the present complaint and prayed that OP be directed to return entire deposited amount of Rs.3,91,000/- along with interest @ 18% from the date of making deposits till realization of this amount, Rs.2,00,000/- towards compensation and Rs.10,000/- as costs towards cost of litigation.

2. Upon notice, OP appeared and filed written reply and contested the complaint of the complainant by raising preliminary objections that complaint is not maintainable. The complaint is time barred. The complainant is estopped by her own act and conduct. On merits, it was averred that flat no. 138 Ground Floor Block A Vikas Scheme Indrapuram Jalandhar has been allotted to the complainant vide letter no. JIT/4288 dated 04.09.2006. The terms and conditions have been mentioned in the allotment letter. As per clause no. 5 of the said allotment letter, the complainant was required to execute the agreement for sale within 30 days from the issue of allotment letter along with two witnesses and complainant failed to complete the formalities and documentation in time for execution of the agreement for sale between the complainant and OP. It was further stipulated that the possession of the flat shall be handed over after completion of the documentation and other formalities. Last installment was to be paid on or before 04.03.2009 and after paying the last installment the complainant approached OP either for completing the documentation or for taking possession. The OP requested the complainant vide letter dated 11.09.2009 bearing no.JIT/3534 informing her regarding the fact that the flat was complete and ready and requested to take possession of the flat within 30 days from the issuance of the letter. But complainant never approached OP at any point of time. As per clause no. 5 of the allotment letter, the complainant was required to execute the agreement for sale within 30 days from the issue of the allotment letter along with two witnesses but complainant failed to complete the formalities and documentation on time for execution of the agreement for sale between the complainant and OP. Possession of the semi-finished flat shall be delivered by OP to intended allottee/vendee on “As is where is basis” after the latter has paid all dues including difference of reserve price from tentative cost furnished/executed all documents as required/prescribed by the Trust under the rules. Rest of the averments made by the complainant was denied by OP and it prayed for dismissal of the complaint.

3. The complainant tendered in evidence her affidavit Ex.C-A along with copies of documents Ex.C-1 to Ex.C-8, photographs Ex.CB/1 and newspapers clippings Ex.CB-2 to Ex.CB-8 and other documents Ex.CB-9 to Ex.CB-41. To refute this evidence, OP tendered in evidence affidavit of Surinder Kumari EO Jalandhar Improvement Trust Jalandhar as Ex.OP-A along with copies of documents Ex.OP-1 to Ex.OP-2 and close the evidence.

4. We have heard learned counsel for the parties and have also gone through the record of the case very carefully.

5. This fact is admitted that a LIG Flat No. 138 Ground Floor for a total sum of Rs.3,91,000/- was allotted to the complainant vide allotment letter no.JIT/4288 dated 04.092.006. This fact is clear from perusal of allotment letter Ex.C-2, which is placed on the record. Original allotment letter also placed on record by JIT/OP. The complainant paid amount of Rs.95,500/- to OP vide receipt Ex.C-3 placed on the record. The complainant also paid Rs.55,500.00 to OP vide receipt Ex.C-4 placed on the record. The complainant further paid Rs.55,500/- to OP vide receipt Ex.C-5 on the record. The complainant further paid Rs.55,500/- to OP vide receipt Ex.C-6 on the record. The complainant further paid Rs.55,500/- to OP vide receipt Ex.C-7 and receipt Ex.C-8 for payment of Rs.55,500/-. From perusal of above said receipts, this point is clear that the complainant paid all the amounts of the flat allotted to her in time to OP. Ex.CB-5 is letter addressed to Indrapuram Welfare Society by Executive Officer, JIT/OP regarding the works of road, park and boundary wall of the society are under process and said works shall be completed very soon. The complainant produced on record various newspaper clippings regarding non completion of water supply and electricity in the allotted flats by OP. The Indrapuram Welfare Society written letter to Financial Secretary Local Self Government of Punjab, Chandigarh Ex.CB-12 regarding provision of development facilities in the LIG Flats in the Master Gurbanta Singh Enclave (Indira Puram) Jalandhar to be provided by JIT/OP. The complainant also wrote letter Ex.CB-18 to The Chairman JIT/OP regarding non-compliance of provision of development facilities in the LIG Flats. The complainant further wrote letters Ex,CB-19, Ex.CB-20 to OP. The complainant wrote various letters to OP regarding non-completion of provision of development facilities in the 13.96 Acre Scheme of Indra Puram LIG Flats but OP failed to do so. From perusal of these letters, it appears that OP has not completed the development facilities in the LIG Flats.

6. On the other hand, OP denied the allegations of the complainant alleged in the complaint. OP pleaded that no such request for possession of flat in question was ever raised by complainant. But complainant has written various letters to OP which is placed on record regarding completion of basic amenities in the allotted flats. Not only the complainant but other members of the society also face inconvenience due to act and conduct of OP. This fact is clear from document Ex.CB-17 placed on the record. This fact is established that the flat in question allotted to the complainant vide allotment letter Ex.C-2 on the record. The agreement for sale was also executed between the parties but OP has not complied with the terms and conditions of the agreement. As per clause no.8 of the agreement, maintenance of common portions and common services for these Housing pockets before the possession of the flat is handed over to him/her. But OP has failed to do so. The OP has not completed the basic amenities in the allotted area as per terms and conditions of the allotment letter. This discrepancy on the part of OP shows its deficiency and unfair trade practice. OP was unable to give any valid reason and justification for unpardonable delay and non-delivery of possession agreed and assured to complainant till date. The delay in delivery of possession per se attracts Odium of deficiency, negligence and unfair trade practice envisaged under the CP Act. The delay is tainted with malafide and arbitrariness and purpose behind the curtain is to be prolonged the delivery of the flat in question to complainant, who needs the shelter to live in comfortably. The delay on the part of OP cannot be condoned because there exist no adequate and sufficient reason for non-delivery of possession promised within scheduled period of time.

7. No document has been placed on the record by Ops to show that possession of flat was given in favour of any person. In case the possession of the acquired property is not with Ops then it is an unfair trade practice on the part of Ops to launch the scheme and to collect the money from various applicants. The Government had issued letters to various Improvement Trusts in the State of Punjab i.e. Memo No. 6/44/05-4LG2/16729-90 dated 21.10.2005 wherein after giving a reference of the instructions issued vide letter No. 66-I-30II- 83/7070-7090 dated 23.2.1983 directions were given to all the Trusts to allot/sell only such flat, the site which is available with the Trust free from all encumbrances and it was further mentioned that before the process of allotment/auction of the site is commenced, Chairman and Executive Officers will certify on the record that physical possession of the site of proposed allotment/auction free from all encumbrances/obstructions is readily available for onwards transfer to the prospective allottee/buyer and that there is no physical obstruction to start the construction activities.

8. 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 Munish Dev" 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.

9. From perusal of entire record of the file, it has transpired that complainant agreed to purchase the flat in question on the assurances given by OP and submitted application on the prescribed form to OP along with all the requisite documents and completed all the requirements. The complainant was allotted LIG Flat No. 138 Ground Floor for a total sum of Rs.3,91,000/- vide allotment letter no. JIT/4288 dated 04.09.2006. The complainant paid whole price of the flat in question to OP as per allotment letter dated 04.09.2006. But OP had not given possession of the flat to complainant even after lapse of more years from the date of allotment. As such, lapse on the part of OP is proved.

10. Keeping in view the totality of the facts and circumstances of the case and plethora of judgments mentioned above, the present complaint is allowed and OP is directed to refund the entire deposited amount i.e. Rs.3,91,000/- to complainant which has deposited by him with OP along with interest @ 9% from the date of deposit till its actual payment. The complainant is also entitled Rs.10,000/- as compensation for mental harassment and Rs.5000/- as costs of litigation.

11. 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

28^th of September 2021

Kuljit Singh

(President)

Jyotsna

(Member)

Jaswant Singh Dhillon

(Member)