BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.437 of 2020

      Date of Instt. 04.12.2019

      Date of Decision: 28.04.2023

Sudershan Sehgal (now deceased) through her LRs:-

1.       Ashok Kumar Sehgal, aged about 72 years, son of Shri Naranjan       Dass Sehgal, R/o House No.155, Bhai Dit Singh Nagar,         Jalandhar-144001.

2.       Neeraj Sehgal son of Shri Ashok Kumar Sehgal R/o House      No.155, Bhai Dit Singh Nagar, Jalandhar-144001.

..........Complainants

Versus

Jalandhar Improvement Trust, Jalandhar through its Chairman/Administrator.

….….. Opposite Party

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)

                   Sh. Jaswant Singh Dhillon       (Member)                                

Present:       Sh. R. K. 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 a consumer of the OP as the LIF flat No.9, Ground Floor, Block-A, for a total sum of Rs.3,91,000/- was allotted to the complainant vide allotment letter no.JIT/4279 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 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. After payment of all the installments 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 OP 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 2 ½ 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. 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 of the flats owners. The complainant was asked to pay an additional cost of Rs.60,066/- within nine months of issuance of the above demand letter and an additional amount of Rs.2503/- was demanded towards cess charges vide notice/letter of demand bearing JIT/3283 dated 11.09.2009 and complainant paid the same after deducting Rs.6000/-, which was adjusted in the installment and total cost comes Rs.4,47,569/-. Whereas, on continuous and constant protest by allottees, the said enhanced amount was first reducted after admitting calculation mistake and later on, it was totally waived and promised to refund the enhanced amount buyer the said enhanced amount was not refunded. 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. Further, it is also very interesting as well as important to highlight that 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. (in short PSPCL) 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 electricity supply was made available as on 01.02.2013. Till today, in the complex of 888 flats of Indira Puran, many of the allottees 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 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 OP be directed 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.4,47,569/- 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 complainant was handed over the possession vide possession slip dated 14.10.09. OP transferred the flat in dispute it was made clear that the allottee shall be bound by all the terms and conditions as applicable to the original alllotee. It is further averred that the complainant was allotted Flat No.9 GF development scheme Indra Puram (13.96 Acre) (Master Gurbanta Singh Enclave), Jalandhar and the complainant was handed over the possession before mention flat and was duly received by the complainant. It is further averred that the present complaint is hopelessly time bared and has been filed after a lapse about 11 yrs. It is further averred that the claim for monetary compensation filed by the complainant is time barred and hence not maintainable before this Commission. The complainant has mislead this Commission 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. The complainant is guilty of concealing fact and hence not entitled to any relief from this Court. On merits, the factum with regard to allotment of the flat to the complainant is 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 not filed by the complainant. 

4.                In order to prove their respective versions, both the parties have produced on the file their respective evidence.

5.                We have heard the arguments from learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by the counsel for the complainant very minutely.

6.                It is not disputed that the complainant (now deceased) was allotted LIG Flat No.9, Ground Floor, Block-A by the OP in Indira Puram (Master Gurbanta Singh Enclave) as per the allotment letter Ex.C-2. As per the conditions of the allotment letter, the complainant paid the total amount of Rs.3,91,000/- 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 of Rs.60,066/- and Rs.2503/- as cess charges, vide letter Ex.C-9 and the complainant paid the amount of Rs.56,569/-, vide receipts Ex.C10 to Ex.C-12. The grievance of the complainant is that despite taking the installments and the entire amount, the complainant was not provided with the amenities as were to be given by the OP. The OP has violated the terms and conditions of the allotment letter. As per the Clause-7 of the allotment letter Ex.C-2, the amenities and facilities were to be completed within 2½ years of the allotment and possession will be delivered thereafter, but the facilities and amenities have not been given by the OP. The matter/grievance was agitated and highlighted.

7.                The counsel for the OP submitted that the complaint is not maintainable as the same is time barred and has been filed after a lapse about 11 years. The possession was delivered to the OP on 14.10.2009, vide Ex.OP-1 and the complainant herself has admitted that the wood work, internal water supply, sewerage, electrification and construction work is satisfactory. This clearly shows that there is no deficiency in service on the part of the OP nor there is any unfair trade practice. The physical possession of the flat was handed over to the complainant as the flat was completed in all respects. The complainant after taking the possession kept mum for 11 years and after 11 years the present complaint has been filed by the complainant complaining about the maintenance of the site and water supply without any basis. These allegations are wrong and have been concocted one.

8.                The contention of the OP that the possession of the flat has been delivered to the complainant and there is no deficiency in service, is not tenable, it is proved that only symbolic possession has been given without amenities and without obtaining completion/occupation certificate. As per Ex.C-13/OP-1, the possession was taken by the complainant, in which he has stated that the wood work, internal water supply, sewerage, electrification and construction work is satisfactory. As per the defence taken by the OP the construction work and the development with all the facilities and amenities were completed when the possession was delivered. The news publications have been proved on record by the complainant, which are from different newspapers and these are from 2009 onwards, which have been proved as Ex.CB/3, Ex.CB/4, Ex.CB/6, Ex.CB/7, Ex.CB/8, Ex.CB/13, Ex.CB-14, Ex.CB/21 and Ex.CB/22, Ex.CB/24 to Ex.CB/29. All these news publication show that the facilities and development in the Indira Puram (Master Gurbanta Singh Enclave) is incomplete, meaning thereby there is no development at all. The defence of the OP is shattered with the letter dated 11.04.2012 Ex.CB/5. This letter itself shows that the letter was written to Indra Puram Flat Welfare and Development Society intimating them that the roads, parks and the boundary wall have been constructed. Water supply and sewerage system has also been provided. The electrification is almost complete, but the connection is yet to be given by the PSEB and they are in touch with the department. Approach road is yet to be completed. The recital in this letter is totally contradictory to the document Ex.C-13/OP-1. As per Ex.C-13/OP-1, on 14.10.2009 electrification and sewerage water supply was satisfactory, whereas on 11.04.2012, it was intimated that it is almost complete. As per letter Ex.C-14, amount of Rs.10,28,711/- was deposited with the PSPCL on 06.08.2012 to get installed power lines, electricity polls and transformers for getting power supply of residential flats. This clearly shows that on 14.10.2009 only the symbolic possession was given without the amenities and development of the flats on the spot. In reply to the letter issued by the Indra Puram Flat Welfare and Development Society, the Indra Puram Flat Welfare Owners Society has written number of letters to the OP which have been proved as Ex.CB/9, Ex.CB/12, Ex.CB/15 to Ex.CB/20, Ex.CB/23, Ex.CB/30 to Ex.CB/32 and Ex.CB/36. Vide Ex.CB/34, the news has been published in the news paper Dainik Bhaskar on 08.09.2009, vide which the flat owners have been asked to take the possession of the flats till 15.10.2009, failing which they will be charged Rs.1000/- per month as Chowkidara. This news shows that it has categorically been mentioned in it that all the facilities have been provided in the flats. This information and news is against the record as till 2018 the development of the approaching roads has not been completed, which is clear from Ex.CB/35 and the facilities of the electricity connection was yet to be provided vide letter Ex.CB-5 and Ex.C-14. 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.                Thus, in view of the law laid down by the Hon'ble State Commission as well as Hon’ble Chandhigarh State Commission, UT, the possession given to the complainant without amenities and facilities was partial possession and was not effective possession and the cause of action is continuous till all the amenities are provided and completion certificate is obtained and hence the complaint is within limitation. So from all the angles the OP has failed to prove his case and thus, the complainant is entitled for the relief.

10.              In view of the above detailed discussion, the complaint of the complainant is partly allowed. From the documents produced on record by both the parties, it is evident that partial possession was handed over to the complainant without the development work and amenities as per the conditions laid down in allotment letter. Therefore, the OP is directed to complete the development work and provide all the amenities and facilities in the flat of the complainant as per the allotment letter and brochure of the present scheme alongwith approach road within three months. The complainant is directed to pay the due enhanced amount to the OP within three months. They are further directed to complete the procedure of completion of all the legal documents, failing which OP is directed to return the entire deposited amount of Rs.4,47,569/- alongwith 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    Jyotsna               Dr. Harveen Bhardwaj     

28.04.2023         Member                          Member           President