BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.22  of 2020

      Date of Instt. 21.01.2020

      Date of Decision: 31.10.2023

Shanta Khanna, aged about 78 years, wife of Om Parkash Khanna, originally resident of 383, Mota Singh Nagar, Jalandhar At present resident of C/o Rajesh Khanna, Flat No.503, Tower 1-G, AWHO Gurjinder Vihar, Greater Noida, (UP)-201315.

..........Complainant

Versus

Jalandhar Improvement Trust, Jalandhar through its Chairman/Administrator.

….….. Opposite Party

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Jaswant Singh Dhillon             (Member)

Present:       Sh. Rajesh Arora, Adv. Counsel for the Complainant.

                   Sh. M. S. Sood, 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 is resident of above address. The complainant is a consumer of the OP as a LIG Flat no.8, First Floor, Block-A for a total sum of Rs.3,80,600/- was allotted to the complainant, vide allotment letter no.JIT/4355 dated 04-09-2006 by Jalandhar Improvement Trust 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 the OP in the 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 i.e. the complainant, towards the sale price of the aforesaid flat, in a sum of Rs.3,80,600/-. After the entire payment of flat in the above manner, the complainant was also asked by the OP vide its letter no.JIT/3103 dated 11-09-2009 to pay an additional costs i.e. enhanced amount alongwith additional cees fee thereon, which was paid by the complainant. After payment of all the installments towards basic price of Rs.3,80,600/- as well as enhanced amount of Rs.60,066/- and its Cee fee of Rs.2503/- totaling Rs.4,43,169/- towards the sale price of the flat allotted by the OP, the complainant approached the concerned officials of the OP for completion of the paper formalities as described in the terms and conditions of the allotment letter and the opposite party was required to handover 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 2½ years from the allotment of flat as mentioned in clause no.7 of the allotment letter. Meaning thereby, 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 complainant even after repeated and continuous requests. However, after about six months, 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 complainant was called by the officials of the OP in its office situated at Skylark Chowk, Jalandhar and OP got signed the memo of delivery of possession of the flat, Meaning thereby, only symbolic possession was given in papers and thereafter after couples of days, the complainant was called at the spot for delivery of physical possession of the flat and on visiting at the spot, the allottees found that 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. Upon taking possession of the flats by the allottes, from the various other defects, the allottees found that construction material and fittings were not according to the ISI/PWD standards. Furthermore, the said flats are not fit for human habitation as approach road was not proper and was quite inadequate, there was no supply of water in the flats and sewerage pipelines were not connected. And on the other hand, there was no explanation from concerned officials of the OP when these above defects were highlighted. The complainant could not shift there as the said flat was not fit for living. 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 complainant came across many other allottees of the flats in the said complex who were also complaining about the similar problems. The problems of all most all the allottees were common as the essential infrastructural works as well as basic amenities such as proper approach road, Piped LPG, water supply and sewerage connection were not provided when the possession of the flats was commenced to be given. Since these grievances of the all the allottees are common, as such, all most all the allottees of this complex of the OP jointly and severally met the concerned officials of the OP many a times to get these basic amenities but these have not been provided so far. In order to agitate the matter in issue before the concerned higher authorities, the allottees also got highlighted their grievances in the electronic media and in the print media for redressal of their grievances. Till today, in the complex of 888 flats of Indra Puram, about 65% alottees have taken possession of flats but none of the allotee could dare to shift therein as these flats have not been properly built up, sub-standard material has been used in the construction, there is only a single approach road and that the said approach road to the complex is also not proper and adequate rather it is just 10/11 feet wide and that too has also not been properly constructed and further more and the works of piped LPG is pending, space left for community hall is lying vacant but community hall has also not been constructed, water supply to the flats is not proper and sewerage pipe lines have also not been connected to the main line as such, sewerage is lying blocked. In the absence of the aforesaid basic amenities and development facilities in the flats, the condition of the flats were not worth living yet the allottees were forced to take possession of their respective flats with their threats to charge ‘Chokidara’ cost of Rs.1000/- per month for a single flat. The allottees time and again approached the JIT authorities and requested to complete the above mentioned requirements but no action has ever been taken by the JIT even after firm assurances. Besides this enhanced amount was also demanded towards enhancement of cost of land and construction, however, later JIT realized their fault in calculation and enhanced amount was reduced. 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% p.a. 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, Piped LPG Supply, 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 to award penal interest @ 18% on the entire amount deposited for the flat for the period from March, 2009 i.e. proposed date of delivery of flat, 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 to complete the legal formalities of documentation in favour of complainant, if any, like conveyance deed, agreement of sale etc. and further to refund the payment of enhanced amount, which was promised to be refunded. Further, OP be directed to pay a compensation of Rs.2,00,000/- for causing mental tension and harassment to the complainant and Rs.10,000/- as litigation expenses and to return the entire deposited amount of Rs.4,43,169/- 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 claim for monetary compensation filed by the complainants is time barred and hence not maintainable before this Forum. It is further averred that the complainant has mislead this Forum and got issued a notice in the present complaint which is barred by law of limitation and operation of law of estoppel. The complaint is liable to be returned as the complainant has not come to the court with clean hands. It is further averred that the present complaint is time barred and hence not maintainable under the provision of The Consumer Protection Act. The complainant is guilty of concealing fact and hence not entitled to any relief from this Court. The matter of the fact is that the physical possession of LIG flat no.8 FF was handed over to the complainant memo no.3103 dated 11.09.2009 in development scheme known 13.96 acre (Master Gurbanta Singh Enclave). On merits, the factum with regard to allotment of the Flat No.8 FF to the complainant is admitted and the facts regarding payment to the above said plot to the OP is also admitted, 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 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.8, 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.C2. As per the conditions of the allotment letter, the complainant paid the total amount of Rs.3,80,600/- 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-3 to Ex.C-8. The value of the flat was enhanced and the complainant was asked to deposit the enhanced amount, vide letter Ex.C-9 and the complainant paid the amount of Rs.62,569/-, vide Ex.C-10 & Ex.C-12. 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 and complaints, which highlighted the conditions and progress in the Flat has been proved on record as Ex.CB/3 to Ex.CB/41.

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 have been proved on record by the complainant, which are from different newspapers and the same have been proved as Ex.CB/3, Ex.CB/4, Ex.CB/6 to Ex.CB/8, ExCB/13, Ex.CB/14, Ex.CB/21, Ex.CB/22, Ex.CB/24 to Ex.CB/29 and Ex.CB/37 to Ex.CB/41. These news publication shows that the facilities and development in the Indira Puram is incomplete, meaning thereby there is no development at all. The flat owner wrote number of letters to the OPs and Govt. to provide development facilities which have been proved as Ex.CB/15 to Ex.CB/20 and Ex.CB/30 to Ex.CB/32 and Ex.CB/36. The OP has produced on record only one document Ex.OP1, whereby the complainant was asked by the OP to pay an additional costs i.e. enhanced amount. Enhanced amount has also been paid by 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. But the documents produced by the complainant show that the construction is not complete as per condition of 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. 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 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. 

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 on the part 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 were ready for handing over the physical possession of the Flat and the same is fit for delivery of possession to the complainant. 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. 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 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. This fact is also clear from 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.

10.              In view of the above detailed discussion, the complaint of the complainant is partly allowed and OP is directed to refund the amount paid by the complainant for Flat including enhanced amount paid by the complainant with 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.

11.              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     

31.10.2023                    Member                                 President