BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.469 of 2022
Date of Instt. 20.12.2022
Date of Decision: 01.09.2023
Shanti Devi, aged about 82 wife of Late Shri Gopal Dass, R/o House No.350, Tuli Wali Gali, Mohalla Kartarpura, Nabha, District Patiala through her General Power of Attorney holder Sh. Inderjit son of Late Shri Gopal Dass, R/o House No.350, Tuli Wali Gali, Mohalla Kartarpura, Nabha, District Patiala.
..........Complainant
Versus
Jalandhar Improvement Trust, Jalandhar through its Chairman/Administrator.
….….. Opposite Party
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. R. K. Arora, Adv. Counsel for the Complainant.
Sh. Brijesh Bakshi, Adv. Counsel for OP.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainant through her son as her General Power of Attorney, wherein it is alleged that the complainant is a consumer of the OP as a LIG Flat No.110, First Floor, Block -A for a total sum of Rs. 3,80,600/- was allotted to the complainant vide allotment letter no.JIT/ 4693 dated 04-09-2006 by Jalandhar Improvement Trust as per the terms and conditions enumerated in the said allotment letter under its residential flats 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 sale price of the aforesaid is Rs.3,81,053/-. After the entire payment of flat in the above manner, 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 thereon, which was demanded from the complainant by the OP vide its letter bearing no.JIT/3484 dated 11-09-2009 which was paid by the complainant and total comes to Rs.4,43,622/-. 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 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 time frame, but inspite of repeated requests and demands, the possession of the flat was not delivered after the scheduled time period of 2 ½ 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 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 and 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 allotees were called at the spot for delivery of physical possession of the flat and on visiting at the spot, they 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 there was no electricity supply, a single approach road is 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. At the time of delivery of possession vide the above said memo, there was no power line, electricity pole or electric transformer in the above said colony and in order to get installed power lines, electricity poles and transformers for getting power supply of residential plots, an amount of Rs.10,28,711/- was demanded by Punjab State Power Corporation Ltd. 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 allottes, wherein it was incorrectly got mentioned that wood work, internal water supply, sewer, 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. That true copies of letters of Jalandhar Improvement Trust bearing no.JIT/4764 dated 11-04-2012 as well as it's another letter bearing no.JIT/10819 dated 12- 02-2018, both addressed to Indrapuran Puran (flats owners) Welfare and Development Society clearly establish its admission on the part of OP that possession of the flats were delivered only in papers and that too without providing basic amenities at the site. And such delivery of possession without basic amenities was no possession in the eyes of law. And in this regard, the above said letters of JIT, received through Indrapuran Puran (flats owners) Welfare and Development Society are sufficient to prove that uptill recently there is non-completion of basis facilities in the said project by JIT. Uptill today, in the complex of 888 flats of Indra Puran, 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 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 @ 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 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, 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 further OPs be directed to pay to the allottees of the flats 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 OPs be directed to complete the legal formalities of documentation in favour complainant, if any, like conveyance deed, agreement of sale etc. and the opposite party is yet to refund the payment of enhanced amount, which was promised to be refunded and to require to obtain completion certificate of the present complex from the competent authority and the OPs be directed to pay an adequate amount towards compensation and damages for mental tension, torture and physical harassment of the complainant and in the alternative to return the deposited amount of Rs.4,43,622/- alongwith interest @ 18% per annum from the dates of making deposits till realization of the amount alongwith compensation of Rs.2,00,000/- for causing mental tension and harassment to the complainant and Rs.35,000/- 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 under the law against the respondent in the present form under the law. 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/4293 dated 04.09.2006. Thereafter the complainant failed to approach the OP for executing the sale agreement or to take possession. As such Letter No.JIT/3484 dated 11.09.2009 was served upon the complainant to inform her that the Flats are ready and to take possession of the same failing which chowkidara fees of Rs.1000/- shall be chargeable and she was also called upon to deposit the enhanced price. The complainant in compliance and agreement thereof deposited the price and the possession was delivered on 17.11.2009 which she had duly received and executed receipt thereof to the effect that complainant ‘had taken over the possession of the Flat from opposite party. The wood work, internal water supply, sewer, electrification and construction work is satisfactory.’ The possession slip was executed without any grievance or grouse or protest or objection for not providing services. Thus, the present complaint filed after more than 14 years of delivery of possession of flat to the satisfaction of allottee is barred by limitation. It is further averred that the complainant has recklessly with total false pleadings and based on untruth filed the present complaint with an allurement of seeking the refund of the sale money whereas there is no such occasion at all. The complainant has not approached the Forum with clean hands and has concealed the facts from the Forum. In fact despite complainant not having sought possession the Improvement Trust had issued Letter No.JIT/3484 dated 11.09.2009 to the complainant to take possession. Thereafter, there had been physical not mere documentary delivery of possession to complainant and the complainant has misrepresented the facts with a view to unlawfully gain by misguiding not only the OP but the Forum too by the misstatements. It may be seen that the complainant had received the possession of the Flat No.110-FF Indra Puram Scheme from the OP vide Possession Receipt. It is noteworthy that the complainant had failed to execute the sale agreement despite reminder/ letter no.JIT/668 dated 22.05.2013 served upon her to enter into sale agreement. Thus default lies squarely upon the complainant and not the OP rather as per clause 6 of the allotment letter the OP is well within its rights to forfeit the deposited amount and cancel the allotment. However, the possession was delivered to the allottee to her satisfaction much before the date of filing the present complaint as stated above. The complainant fully being aware of the condition of the Flat and the status of works at site and after being fully satisfied with the same did not lodge any protest. If throughout the period she was not satisfied with the condition of the flat or facilities at site then she should not have took possession of the same or requested at that time for any such grievance but she never complained at that time nor sought any clarifications which implies that he had accepted the flat and facilities as it is at site. However, it is worthwhile to mention here that the alleged deficiency in providing facilities as claimed in the complaint is not maintainable because all the facilities as far as the part of Trust is concerned have been duly provided however the maintenance thereof as per the conditions of allotment is upon the Registered Body to be formed by the allottees/vendees of the Flats before taking possession from Jalandhar Improvement Trust as per the Sale Agreement. The complainant is defaulter and till date did not execute the sale agreement and all this time she sat mum. The complainant has no locus standi to file the present complaint. Thus, it may be seen that the complainant in order to avoid her liability to maintain the flat intentionally got filed the present frivolous complaint after so many years of allotment. Now, as regards the facilities promised to the allottees, it may be seen that all the civil works were duly completed and provided as per allotment Terms and Conditions, however, on account of non-forming of the 'Registered Body' by the allottees the conditions deteriorated because of non-maintenance by allottees themselves. Furthermore, as per the conditions of the agreement possession of semi-finished flat was to be delivered by the Trust to the allottee on "As is Where is Basis". It is also part of the agreement that the Trust shall not entertain any complaint whatsoever regarding the cost of flat, its design and quality of material used, workmanship or any other defect. It was further agreed that the allottee/vendee agrees and undertakes not to make such complaint/request aforesaid and shall accept the possession of the flat on "As is Where is Basis". The allottee/allottees being bound to maintain the flat individually and the premises by forming a 'Registered Body. But despite the fact that most of the allottees took possession of their respective flats in the year 2009-10 they had failed to form the 'Registered Body' or to maintain their respective Flats in time and now after lapse of so much time false accusations are being levied to get undue and unlawful advantage. Thus, it may be seen that there has been no delay in the construction or deficiency in services or maintenance as far as the opposite party is concerned. Now, if the complainant or for that matter any other allottee do not take possession or takes the possession and does not maintain it or the flat lies closed for so many years at site then Jalandhar Improvement Trust cannot be held responsible for that as it is not to maintain the allotted flats of which either the possession has been taken or is not being taken by the allottee with any malafide intention of ultimately accusing the Trust or the officials of Trust for deficient service. In the present case complainant did not enter into sale agreement and after taking possession deposited sale money but never objected to lack of any basic amenities or any grievances. The present complaint deserves to be dismissed on this short score alone. It is further averred that the present complaint is not maintainable and is barred under the Law. It may be seen that the complainant is guilty of concealment of material facts and is trying to jump into the bandwagon of other complainants in order to gain from the losses of Jalandhar Improvement Trust, although she is not entitled to any kind of relief. Thus, the present complaint is barred. It is further averred that the present complaint is an abuse of process of law. No actionable claim has ever arisen to the complainant to file the present complaint against the respondent. The present compliant is a clever design of the complainant to gain and earn profits from the misery and losses of the OP. It is pertinent to note that there is no provision in the Agreement between the parties or in the Punjab Town Improvement Act and Rules for refund of the sale money to the successful allottee. Law and justice are based on facts of every case measured on the anvil of pleadings and proof and not imaginations Membe nor things heard by the complainant bringing up a case which in fact never happened to that person. The complainant is not entitled to any relief and the present complaint filed by misrepresentation and concealment of facts from the Forum is liable to be dismissed with exemplary costs. On merits, the factum with regard to allotment of the Flat bearing No.110-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 the complainant very minutely.
6. The allotment of the flat is not disputed rather it is admitted fact. Now the first point to be decided is as to whether the complaint is time barred or not. As per the contention of the OP, the allotment was made on 04.09.2006, but the complainant has failed to approach the OP for executing the sale agreement or to take possession, but this contention is not tenable as the photographs and news publications have been proved on record by the complainant, which are from different newspapers and these are from 2020 onwards, which have been proved as Ex.CB35, Ex.CB37 to Ex.CB45. All these news publication show that the facilities and development in the Indirapuram Flats is incomplete, meaning thereby there is no development at all. Perusal of Report dated 22.11.2022 by Kakkar & Associates Ex.C46 shows that lot of amenities and facilities are not proper and incomplete. So, it cannot be said that the present complaint is time barred as the complaint was filed on 20.12.2022 which is very much within time. 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.
7. With regard to non-entering into sale agreement by the complainant despite sending reminder/letter No.JIT/668 dated 22.05.2013 by the OP is concerned, the complainant has alleged that the facilities and amenities were not complete and the entire amount was paid by the complainant. As per the allotment letter, the conditions were not complied with by the OPs as the plots were not ready within prescribed period, therefore the fault is on the part of the OPs. The OPs have alleged that they were to take the possession within 30 days from the allotment, but this contention is not tenable. If the complainant failed to take the possession within 30 days from the allotment and failed to execute the sale agreement or if the complainant does not turn up, then they can cancel the allotment, but the OP failed to cancel the allotment. 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 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, 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.
8. In view of the above detailed discussion, the complaint of the complainant is partly allowed and OP is directed to refund the amount of the Flat 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.
9. 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
01.09.2023 Member President
