BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

 Complaint No.468 of 2022

      Date of Instt. 20.12.2022

      Date of Decision: 01.09.2023

Sunita Duggal, aged about 67  wife of Shri Anil Duggal, R/o NH 251, Mehta House, Neela Mehal, Jalandhar, at present resident of House No.58, Sat Nagar, Grain Market, Tehsil and District Jalandhar.

..........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, wherein it is alleged that the complainant is a consumer of the OP as a LIG Flat No.238, Second Floor, Block-A for a total sum of Rs.3,70,200/- was allotted to the complainant vide allotment letter no.JIT/8593 dated 04-11-2008 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 towards the sale price of the flat and the same were deposited by the complainant. Before and after the payment of all the installments towards the sale price of the flat allotted by the OP, the complainant approached the concerned officials of the opposite party 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 the scheduled time period of 2½ 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, 2011. As on dated 19-06-2012, an agreement for sale was also executed between the complainant and the concerned officers of the OP. All the payments, fees, costs of documentation and interest on the delayed payments towards the sale price of the flat, were made as the per the demands raised by the officials of the OP but even then the possession of the flat was not offered and given to the complainant even after repeated and continuous requests. The complainant was not offered any possession of the flat allotted to her, but the OP vide its letter bearing memo no. JIT/95 dated 10-4-2015, asked her to pay enhanced cost of the flat amounting to Rs.16,097/- within 15 days and the same was deposited within the stipulated period by the complainant vide cheque no.038164 dated 24-04-2015 of Rs.16,097/- drawn on Indian Bank. However, later on the concerned officers of the opposite party realized their fault in calculation of enhanced amount and the same was reduced. Some of the other allottees, who were offered possession of the flats allotted to them, 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 opposite party got signed the memo of delivery of possession of the flat from most of the other allottees. Meaning thereby, only symbolic possession was given in papers and however, after a couples of days, some of 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 opposite party 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 to some of the allottee, however, the possession of the flat in question was not offered and delivered to the complainant. 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 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 some of the other allottes, wherein it was incorrectly got mentioned that wood work, internal water supply, sewer, electrification and construction work is satisfactory. As such, all other allottees, who were given partial/symbolic possession in papers, they could not shift there as the said flat was not fit for living. In this way, the complainant is suffering great financial loss 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 return the entire deposited amount of Rs.3,86,298/- alongwith interest @ 18% from the dates of making deposits till realization of this amount and further OPs be directed to pay Rs.2,00,000/- as compensation 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/8593 dated 04.11.2008. Thereafter the possession was delivered on 23.09.2009 to allottees who duly received and executed receipt thereof to the effect that complainant had taken over the possession of the Flat from OP. The wood work, internal water supply, sewer, electrification and construction work is satisfactory. All the more so the complainant never approached the opposite party with any grievance or grouse or protest or objection for not providing services. Thus, the present complaint filed after more than 14 years of allotment 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 there had been physical not mere documentary delivery of possession and the complainant has misrepresented the facts with a view to unlawfully gain by misguiding not only the opposite party but the Forum too by the misstatements. The complainant had belatedly executed sale agreement belatedly on 19.06.2012 on her own default and even then raised no objection regarding the non-provisions as being alleged in the present complaint. Thus, the possession was delivered to the allottee to their 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 he was not satisfied with the condition of the flat or facilities at site then he should not have took possession of the same or requested at that time for any such grievance but he 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. Thus, it may be seen that the complainant in order to avoid his 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. 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. 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 or 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. It is further averred that the complainant is barred by her own act, conduct, laches, delay and negligence from filing the present complaint and claiming the relief as prayed in the present complaint. It is further averred that the OP is a statutory body duty bound under the Punjab Town Improvement Act 1922 (hereinafter called "Act") to seek the compliance of the statutory provisions, allotment conditions, Instructions and Rules as per law and Act. The allotments made by the OP are subject to the provisions of the Sale Agreement and the Act, rules and other relevant Government instructions and the allottees are bound by the same. On merits, the factum with regard to allotment of the Flat bearing No.238-SF 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 04.11.2008 and thereafter the possession was delivered on 23.09.2009 to allottees, who duly received the possession and executed receipt thereof expressing their satisfaction in the condition of the plot, but this contention is not tenable as the photographs have been proved on record by the complainant as Ex.C12 to Ex.C31. During arguments, the complainant has relied upon the judgments passed by this Commission, wherein this Commission has observed and held that there is no development in the area in dispute and no facilities are available. No amenities as per allotment letter have been provided by the OPs. Even the Commission has held in many cases, as relied upon by the complainant that the general condition of the area shows that there is no development. 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.                The complainant has made all the payments even enhanced payment on the terms and conditions to OP vide Ex.C-4 and Ex.C-5. Agreement to sell Ex.C3/OP2 was executed. From perusal of photographs clippings Ex.C12 to Ex C-31, it is clear that OP has not provided the civic amenities and facilities to the complainant. The OP has not brought on the file any documentary evidence to prove his case. This fact is clear from case titled as ‘Jalandhar Improvement Trust Vs. Sohan Lal Kundi’ in FA No.871 of 2016, decided on 19.05.2017 that ‘OP is deficient in service and liable to refund the deposited amount with interest’. This authority is attracted to the factual situation of this case. We are fortified by law laid down by Hon'ble National Commission in case titled as ‘Jalandhar Improvement Trust Vs. Swaran Jeet’ in Revision Petition No. 225 of 2017 decided on 16.03.2017, wherein it has been held by the Hon’ble National Commission that Improvement Trust is still fighting litigation and steps are still to be taken by it for completing the flat and providing the facilities. Non delivery of possession of flat with facilities during the agreed period amounts to deficiency in service on the part of OP. Further, the Hon’ble State Commission U.T Chandigarh, clear this fact in case titled as ‘Gurpreet Singh, Abhishek Lal versus Puma Relators Private Limited and another’ reported in 2015(4) CPJ 91 wherein it has been held that ‘development and amenities were incomplete at the time of offering possession. Possession cannot be said to be valid and legal possession. Refund with compensation, litigation cost and compound interest on deposited amount granted.’ The complainant paid substantial amounts of sale consideration to OP before the scheduled date of delivery of possession in this case. It is the solemn obligation of OP to complete the project by the scheduled date with civic amenities. The OP has failed to deliver possession as per allotment letter Ex.C2/OP1. 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’. Even no completion certificate or occupancy certificate has been produced on record by the OP, without which the possession cannot be handed over to the buyer.

8.                In view of above discussion and after going through the plethora of judgments, it is clear that OP is not only deficient in service but has also indulged in unfair trade practice. If full and final payment has been received by the OP from complainant, then it is duty of the OP/developer to handover the possession with basic amenities. As such, the complainant is entitled for the relief and thus, the complaint of the complainant is partly allowed and OP is directed to refund the sale consideration amount of the flat i.e. Rs.3,86,297/- to the complainant with interest @ 9% 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