BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.336 of 2015

Date of Instt. 12.08.2015

Date of Decision: 08.03.2017

Shri Ram Vatika Resident's Welfare Association, Shri Guru Ravidass Nagar, Jalandhar through its General Secretary Sh. Raj Kumar.

..........Complainant

Versus

Jalandhar Improvement Trust, Jalandhar through its Chairman.

.........Opposite party

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh, (President),

Sh. Parminder Sharma (Member)

Present: Sh. RK Bhalla, Adv. Counsel for the complainant.

Sh. Brijesh Bakshi, Adv. Counsel for OP.

Order

Karnail Singh (President)

1. This complaint filed by society through Sh. Raj Kumar General Secretary of the same who is fully conversant with the facts of the complaint and he is fully authorized to file the present complaint on behalf of the complainant vide resolution dated 22.03.2015 passed by the executive committee of Shri Ram Vatika Residents Welfare Association.

2. The opposite party has presented a housing scheme of HIG (6 Storyed) Super Deluxe Flats named Shree Ram Vatika Apartments, situated at Guru Teg Bahadur Nagar, Jalandhar in the year 2006. The opposite party also published an advertisement in the newspaper in which the opposite party claimed that the flats are HIG Super Deluxe Luxurious Apartments and the said scheme was based on self financing scheme. The opposite party also issued a brochure of the said scheme and also promised to provide the following features:-

a. Round the clock security.

b. Provisions for 24 hours power backup for all the flats

c. Biometric Access System for each flat

d. Telephone Line Provisions in all bedroom

e. Door eye facility at main door

f. All bedrooms with attached toilets

g. Modular kitchen

h. Video Door Phone in each flat

i. Lift overlooking Central Centrum

j. Sliding Main Gate automission

k. Servant room with toilet in each flat

l. Well designed landscape

m. Centralized fire hydrant system with yard hydrant and wet riser and sprinkler system for car parking.

n. Centralized Monitoring Type- Back Convention Fire Detection System for every flat

o. CC TV System- Covering boundary with night vision and outdoor housing and centralized monitoring at security room.

p. Singly Gate entry to Campus

q. Intrusion Detection System

r. Earthquake Resistance Structure

s. Swimming Pool, Billiard Room.

t. Health Club

u. Covered parking space

v. Automatic bareer with proximity assess to every resident having vehicle.

w. Cable TV Provisions in all bedrooms

x. Articulated LPG System

3. That the date for booking open on 12.03.2006 and closed on 25.03.2006. The total cost of the each flat was fixed as Rs.27,51,600/- and number of applications were received by the opposite party and accordingly the flats were allotted to the different persons by way of lucky draw on 02.08.2006. That as per the schedule/mode of payment a 25% of the sale price plus Rs.25,000/- as maintenance fund to be used by the society for maintenance of services plus Rs.20,000/- towards the cost of articulated LPG system has been received by the opposite party from all the flat owners. It was also decided by the opposite party that the total amount of maintenance fund received by it along with interest shall be transferred to the society when it will be formed. After the formation, it is the society who is to maintain the common area of the total campus and the above said fund will be used by the society for that purpose. Accordingly, the allottee of the flats have formed a society under the name and style of “Shri Ram Vatika Residents Welfare Society” and that society i.e. the complainant was registered with the Registrar of Socities vide DIC/Jalandhar/2012/2014-2015 on 22.09.2014.

4. That all the allottess and residents of the said campus namely Shri Ram Vatika are the members of the society who have paid Rs.25,000/- each to the opposite party and therefore the society is a consumer in the eyes of law as per the definition of consumer in the Consumer Protection Act. That after the formation of the society, the flat owners have shifted their residence in the campus but the features which are to be provided by the opposite party as disclosed in the broucher issued before the allotment, has not been provided so far to the residents of the campus. Now it is the society i.e. complainant who is to maintain the common area and for that purpose the fund which has been received by the opposite party is to be transferred in the name of the society. That even after the allotment of the flats to the allottee and in spite of the fact that the allotees have shifted their residence to the campus, the opposite party has failed to provide the following features which the opposite party has committed to provide:-

a. Water proofing treatment with bitumen over the roofs of all the flats has not been done properly and there is a leakage and dumpness due to want to this feature.

b. Non operation of swimming pool at the terrace.

c. Non providing the telephonic shower and overhead shower arrangement of Nova Make.

d. Non providing of jockey pump of Crompton Greaves make for lifting water from the basement as well as automatic starter.

e. Non providing of motor of 1 ½ Horse Power for de-watering pump with motor.

f. Non providing of earthing of metalic cases as per the requirement.

g. Non supply and erection of GI 7/10 (SWG) 10 m.m. Dia stranded flexible lighting conductor wire including supply of suitable iron clamp

h. Non working and damaging condition of Fire Pump with bronge impeller. In fact, the fire control system are required to be corrected by the opposite party and necessary certificate regarding the proper functioning of above said system should be obtained from Fire Officer.

I. Non installation of Fire Extinguisher.

j. Non installation of Anti theft Alarm System.

k. Non installation of Automatic Parking System.

l. Non providing of audio video colour door phone system.

m. Non providing of Finger Print base biomatic system for each flat.

5. That all the above said features are required to be installed by the opposite party and if any feature has already been installed that should be in working condition, because the opposite party has committed to provide all these features even as per the information obtained by one of the allottee from the Improvement Trust. That in addition to it, the opposite party is to install three electric transformers for the proper supply of electricity to the residents. The opposite party has installed all the transformers and out of one is not working. Moreover, these transformers are not handed over to the PSPCL as per the provisions and due to that PSPCL is not attending the complaints which used to arises due to defect in the supply. The officials of PSPCL are claiming that these transformers are property of opposite party and has not been handed over to the said company so therefore it is the duty of opposite party to get correct the said complaint. In spite of number of requests to transfer the amount of Rs.10 lacs along with interest collected from the allottees of the flat and which is required to be transferred to the complainant, has not been transferred so far and therefore due to lack of funds, the complainant is unable to provide the necessary facilities to the residents. That as per the broucher as well as advertisement in the newspaper which was issued at the time of booking of flats, it was undertaken by the opposite party that in the campus, the opposite party will provide one complete gymnasium along with its equipment, billiard room along with complete equipment as well as swimming pool. The photographs of these features are also mentioned in the advertisement which was published for the booking of the flat. Now, the opposite party has not provided all these features in spite of the request by the complainant to the opposite party for the same. The opposite party is also to provide 3 exhaust fans, 6 (70w metal hallied fled light), 16 brick lights, 131 fancy ceiling lights with CFL Lamps of 18 w in the campus, but the opposite party has not provided the same. All the above said features are connected with the complainant society as it is the society who is to further look after the maintenance of all common area as well as features which the opposite party agreed to provide but has not provided. The opposite party failed to provide all the facilities as agreed in spite of repeated request by the complainant and as such necessity arose to file the complaint with the prayer that OP may kingly be directed to provide all the facilities as mentioned in the brochure of the opposite party and to transfer the funds along with interest which has been received by the opposite party from the allottees at the time of receipt of the first installment and to pay a sum of Rs.2,00,000/- as compensation for the mental tension, harassment and agony suffered by the complainant and Rs.22,000/- as litigation expenses.

6. Notice of the complaint was given to the opposite party and accordingly the opposite party appeared through counsel and filed written reply, whereby contested the complaint by taking preliminary objections that the above noted complaint is not maintainable in the present form under the law against the respondent and further submitted that the present complaint is barred under the law as on one hand the individual flat allottees have filed their complaints pending in this Forum and at the same time the same allottees being the members of the Society have filed the present complaint through the society and thus the complaint deserves to be dismissed on this score alone and further submitted that the society is not a consumer qua the opposite party. It is pertinent to mention that as per the conditions of allotment every successful applicant was required to be member of the Shri Ram Vatika Corporation House Building Society Ltd. Jalandhar to be formed by the members only for the purpose of maintenance and operation of common portions, lifts, power back up, security, swimming pool and common service etc. for the housing blocks in accordance with byelaws and provisions of the Punjab Corporation Societies Act, 1961 and rules and further to abide by the provisions made in the various terms and conditions of allotment in this behalf before the handing over the possession. The allottee/Member shall pay Rs.25,000/- at the time of allotment towards the creation of the common fund to be used for maintenance of common services/areas. Subsequently the society itself to determine the monthly subscription for the fulfillment of its objectives as determined in the Brochure. Thus, there is no question of society making any payment to the opposite party or availing any services against consideration from the opposite party and so the society is not a consumer qua the opposite party and thus the present complaint deserves to be dismissed on this short score alone. It is further submitted that the grievances being complained of by way of deficiencies in the complaint are in no way attributable to the opposite party rather the same were the duties and functions of the complainant society itself. But due to careless and callous attitude of the members/allottees the complainant society has been formed belatedly by the members/allottees and thus the duties which were to be performed by the society had to be onerously undertook by the opposite party by maintaining the Complex through it received no reimbursement or charges for the same from any of the members. Thus the complainant itself is a defaulter and cannot blame the opposite party for its own failures and shortcomings and further alleged that the present complaint is barred by limitation and also the complaint is not maintainable and barred on account of the pecuniary jurisdiction. It is further alleged that the present complaint is false and frivolous even to the knowledge of the complainant and is not maintainable against the opposite party and further alleged that most of the allottee of the flats failed to seek or take possession and rather kept the flats for resale and most of the flats have changed hands many a times. More so due to same reason there was failure in forming the society as the allottees were not interested in dwelling in these units rather using the same for investment purposes as it was expected that the opposite party shall be maintaining the flats and thus no need to seek possession or occupy the same. The opposite party has been continually providing all the promised services and facilities but later due to the careless and callous attitude of allottees has been constrained to take action on account of default of the allottees and issued letters to many allottees to take possession failing which trust shall not further maintain the flats. Thereafter only, even without executing sale agreement many allottees took possession of the flats and have thus affirmed that the condition of the flats in all respects is satisfactory. The complainant is barred by its own act, conduct, laches and negligence from filing the present complaint and claiming the relief as prayed in the present complaint. On merits, the allotment of the flats is admitted but the remaining allegations made in the complaint are categorically denied and lastly prayed the complaint of the complainant may be dismissed.

7. In order to prove the claim of the complainant, the learned counsel for the complainant tendered into evidence affidavit of complainant Ex.CA and Ex.CB alongwith documents Ex. C1 to Ex.C6 and thereafter evidence of the complainant is closed by order vide order dated 16.05.2016.

8. In order to rebut the evidence of the complainant, counsel for opposite party tendered into evidence affidavit Ex.OA and copy of brochure Ex.O1 and then closed the evidence.

9. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.

10. The learned counsel for the complainant submitted that the OP has presented a housing scheme of HIG (6 Storyed) Super Deluxe Flats named Shree Ram Vatika Apartments in the year 2006 and accordingly number of persons submitted their applications and after lucky draw flats were allotted to different persons and at that time it was under took by the OP that flat with the constructed and hand over to each allottee within a period of 2 ½ year and as per brochure it was also agreed between the allottee and the OP that the welfare society will be formed who will look after/maintenance of the said complex but despite this facility is in the brochure and agreement, the OP has failed to transfer the collected amount of Rs.25,000/- from each allottee, to the society apart from that some unique features facilities are also required to provide in the complex but the said unique features facilities were not provided like round the clock security and others as mentioned in the Brochure Ex.C2, despite the fact a society/association has been formed and it was got registered with the office of Registrar Society and copy of registration is available on the file Ex.C3 and as such the OP may be directed to provide the unique feature facility to the society alongwith the agreed amount from the member of the society so that the complainant society will start to maintain each and every features and further for mental harassment to the society, the OP may be directed to pay a compensation of Rs.2 lacs and litigation expenses of Rs.22,000/-.

11. To the contrary the learned counsel for the OP vehemently argued that the allottees of the flat miserably failed to constitute a society for maintenance of the unique feature facility as undertook to provide the inhabitant of the said complex but the said all unique feature facility has been provided in the complex but it is difficult for the Improvement Trust OP to whom the same will be handed over rather the maintenance expenses is bearing by the OP which is virtually against the agreement between the allottees and further submitted that all the unique feature facility as mentioned in the Brochure have been already provided to the society as well as to the members but the instant complaint has been filed just to harass the OP.

12. The next point raised by learned counsel for the OP is that the instant complaint on behalf of the society is not maintainable because the similar relief has been claimed by the individual flat allottees and as such they cannot claim the relief twicely and therefore the complaint is liable to be dismissed.

13. He further elaborate his agreement that the complaint of the complainant is time barred because mostly members took possession long time back and as such the instant complaint which is filed after more than 2 years is liable to be dismissed for want of limitation and even the complaint is not maintainable and barred on account pecuniary jurisdiction because the price of each flat is more than 29 lacs and further prayed that the complaint of the complainant is liable to be dismissed.

14. We have considered the submissions of the learned counsel for the parties and also gone through the case file very minutely and find that the question raised by the learned counsel for the OP that the complaint of the complainant is time barred is not sustainable because the cause of action as involved in this case is recurring cause and therefore the complaint is well within limitation so far the question that the complaint is barred for want of pecuniary jurisdiction, is no doubt, the price of each flats is Rs.29 lacs approximately but in this case the complainant has not claimed any relief on the basis of the price of the flat rather they are claiming that the agreed facilities have not been provided to the allottees. So, under these circumstances this objection of the learned counsel for the OP is also having no force in the eyes of law.

15. We have also considered the submissions of the learned counsel for the OP that there is no relationship of the consumer and service provider between the society and OP because the society is a creature of the allotment condition for maintenance and upkeep of the apartments and common area. Also each of the allottee has paid Rs.25,000/- for the formation of society and society has been formed which are none else rather they are out of allottee and they have paid Rs.25,000/- each and as such the society has been formed who collectively paid amount to the OP for maintenance of the apartments and common area but the common area facilities which are required to be given to the OP have not been given if so then the relationship of consumer and service provider is established and complaint of the complainant apparently maintainable.

16. Coming to the main controversy, whether the OP has provided all the facilities as agreed through Brochure Ex.C2 for that purpose the complainant welfare association alleging that the general facilities as agreed through Brochure is not provided to the inhabitants and if any building is constructed like Swimming Pool, Health Centre but the same is not in operation, the society required to hand over every thing in running condition. No doubt the allottes are required to pay Rs.25,000/- for creation of common fund which shall be used for common service area by the society and said amount is required to be paid at the time of allotment. So it means the said amount is collected by the OP at the time of allotment and if any allottee paid the said amount of Rs.25,000/- then he automatically become the member of the society and further line of action be required to taken up by the OP i.e. formation of society but the OP has not done his duty properly rather the allottee has themselves form a society and got it registered but the amount so collected from each allottee has not been transferred to the complainant society for spending the same for maintenance of the complex. The collection of Rs.25,000/- at the time of allotment is mentioned in the Brochure Ex.C3 under the heading responsible for the maintenance of common operation and community centre etc.. So, if the fund is not provided then how a complainant society maintain the common area and common community centre etc. Further more the complainant alleged that the unique feature facility as mentioned in the Brochure Ex.C2 has not been provided to the allottee if any thing is provided the same is not in a working condition. The complainant has examine Mr. RK Khosla Architect who submitted his affidavit Ex.CB and his detail report is brought on the file Ex.C6 whereas he categorically described which of the unique feature facility has not been provided to the society by comparing with the same Brochure Ex.C2. In order to rebut the evidence of the complainant i.e. the report of Architect Ex.C6, the OP has miserably failed to produce on the file any documentary evidence showing that all the unique feature facility has been provided to the inhabitants of the said complex. So, under these circumstances we find that the complainant society is able to prove that the OP has failed to provide unique feature facility, therefore the complaint of the complainant is partly accepted and OP is directed to provide all unique features facilities to the society and also transferred the collected amount of Rs.25,000/- from each allottee to the society for utilizing the same for maintenance of the common purpose and further OP are directed to pay litigation expenses of Rs.7000/- to the complainant, no compensation is awarded because the society is not individually aggrieved because each allottee is individually aggrieved and who has filed their individual separate complaint and accordingly ordered and complaint could not be decided within stipulated time frame due to rush of work.

17. 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 Parminder Sharma Karnail Singh

08.03.2017 Member President