Punjab

StateCommission

FA/12/143

Subhash Chander Datta - Complainant(s)

Versus

Jalandhar Improvement Trust - Opp.Party(s)

-

16 Mar 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.

 

                      First Appeal No.143 of 2012                                                    

                                                        Date of institution  :    06.02.2012   

                                            Date of decision     :    16.03.2015

 

Subhash Chander Datta S/o L.Sh. Nathu Ram Datta R/o 316 Srojany Colony, Yamuna Nagar-135001.

…….Appellant/Complainant

Versus

Chariman Jalandhar Improvement Trust, Jalandhar.

 

                                                              …Respondent/Opposite Party 

First Appeal against the order dated 29.12.2011 of the District Consumer Disputes Redressal Forum, Jalandhar.

Quorum:- 

 

          Hon’ble Mr. Justice Gurdev Singh, President

                        Mr. Baldev Singh Sekhon, Member

                        Mrs. Surinder Pal Kaur, Member

 

Present:-

 

          For the appellant            : None.

          For the respondent        : Sh. Vishwajit Bedi, Advocate

 

MRS. SURINDER PAL KAUR, MEMBER :-

 

                    This appeal has been preferred by the appellant/complainant against the order dated 29.12.2011 passed by the District Consumer Disputes Redressal Forum, Jalandhar, (in short "District Forum'), vide which his complaint filed under Section 12 of the Consumer Protection Act, 1986, (in short "the Act") against respondent/opposite party was dismissed on the following grounds:-

"The complainant has filed this complaint in January 2009 i.e. after two year. So, the present complaint is also time barred. Moreover; no consumer dispute is involved in present case. The complainant had applied for Flat and same was allotted to him by OP at First Floor. The complainant has no vested right to get flat at Ground Floor in lieu of the Floor allotted to him at First Floor. In view of the above discussion, we hold that there is no merit in the present complaint and same is hereby dismissed."

2.           The brief facts, stated in the complaint are, that complainant applied for allotment of a flat in the Master Gurbanta Singh Avenue on 02.03.2006, vide Application Form No.33114 under General Category,  and deposited Rs.18,000/- as earnest money on the same day. On 04.09.2006, the opposite party (in short'OP') informed him that flat No.69, 1st Floor, was allotted to him in Master Gurbanta Singh Enclave. Complainant pleaded that he was a Senior Citizen and suffered from knee pain. His wife was a chronic patient of Hypertension for the last 15 years and also a patient of knee pain and was getting treatment from D.A.V. Institute of Physiotherapy, Yamuna Nagar and was also under treatment of Command Hospital, Chandigarh. In the above said circumstances, it was not advisable and practicable to live in the flat on 1st floor as allotted by Jalandhar Improvement Trust. Accordingly, he informed the OP about his inability to live in a flat on 1st floor and made a request either to allot him a flat on ground floor or refund the earnest money. He again requested on 27.09.2006 and 29.12.2006 and after 5 months, he sent a written request through registered post to expedite his matter. But the OP failed to accede to his request. It was a deficiency in service on its part. Ultimately, he filed a complaint before the District Forum seeking the following directions to the OP:-

(i) to allot him a flat on the ground floor in lieu of Flat No.69, 1st floor, Master Gurbanta Singh Enclave (Indira Puram) Jalandhar; and

(ii) to pay him Rs. 5 lac as damages for mental tension, harassment, and loss to his health due to worry etc.

3.           Upon notice, opposite party filed written reply before the District Forum, in which it took the preliminary objection that the complainant is not its consumer. No notice, as required under Section 98 of the Punjab Town Development Act, has been served upon it. The complainant has not approached the District Forum with clean hands and has suppressed true and material facts. It was pleaded that complainant signed the application form with his free will. He applied for flat in INDRA PURAM after reading and understanding all the terms and conditions. By virtue of condition no.12 contained in the brochure and Condition no.6 contained in the allotment letter no.JIT/4313 dated 04.09.2006, the OP is fully authorized to forfeit the earnest money and to cancel the allotment of the flat. Moreover, there is no provision of giving some other flat to the complainant, in lieu of the one allotted to him. If the complainant wanted the refund of the earnest money, then he should have applied within 30 days of receiving the allotment letter. Complainant has failed to comply with this provision. Denying any deficiency in service, on its part, dismissal of complaint was prayed by it.         
4.           The parties produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing Ld. Counsel on their behalf, dismissed the complaint, vide impugned order.
5.           We have heard Ld. Counsel for the OP as no one appeared on behalf of the complainant and have also carefully gone through the record of the District Forum.
6.           It was stated in the grounds of appeal that complainant made a request to the Chairman, Jalandhar Improvement Trust for the change of his allotted flat on first floor to other flat on ground floor. He made his request within 30 days from the date of allotment. The District Forum failed to consider his genuine request and dismissed his complaint without any reasonable grounds.
7.           It was submitted by the learned counsel for the opposite party that the District Forum correctly held that there was no consumer dispute between the parties. Moreover, complaint is barred by limitation. There is no reason for upsetting the well reasoned findings of the District Forum.

8.                OP contended that complaint is barred by limitation because it was filed after two years from the date of allotment. Complainant specifically pleaded in his complaint that after allotment of his flat on 04.09.2006, he made a request to the Chairman,

Improvement Trust, Jalandhar city regarding change of his allotted flat because due to knee pain he was unable to live in the said flat on first floor. Complainant produced on record the letters dated 29.12.2006, 10.05.2007 and 12.03.2008 written by him to OP regarding the change of flat. He wrote the first letter on 29.12.2006 that was not replied by the OP. Again, he wrote a letter dated 10.05.2007 and 12.03.2008, that was also not replied by the OP. Ultimately he filed the complaint before the District Forum on 05.01.2009. Complainant raised the issue of change of his flat for the first time on 29.12.2006 but his flat was not changed. In fact no response was received from OP. Thus, the cause of action occurred to the complainant when he received no reply after waiting for reasonable time say of two months i.e. on 28.02.2007. Thus, the complaint filed on 05.01.2009 was within the period of limitation.

9.                Now the question arises that whether the complainant has right to change the flat. The complainant failed to prove on record any provision or rule, under which he was eligible to seek change of flat. Neither in the brochure Ex.O1 nor in the allotment letter Ex.O3, there was any provision regarding the change of flat. OP was not bound to change the flat on the request of the complainant. There is no merit in the appeal.

10.              In view of the above discussion the impugned order dismissing the complaint on the point of limitation is set aside and the appeal filed by the complainant as well as his complaint is dismissed on merit.

11.             The arguments in this case were heard on 13.2.2015 and the order was reserved.  Now, the order be communicated to the parties.

12.              The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                              (JUSTICE GURDEV SINGH)

                                                                         PRESIDENT

 

 

                                                                                                        (BALDEV SINGH SEKHON)                                              

                                                    MEMBER

                                                                         

 

                                                            (SURINDER PAL KAUR)

March     16, 2015                                                                                                                                                           MEMBER

RK 2