BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.473 of 2019
Date of Instt. 04.10.2019
Date of Decision: 29.09.2022
Tejinder Batta aged about 64 years S/o Sh. Manohar Lal Batta R/o Opp. Kali Mata Mandir, Dalhousie Road, Pathankot.
..........Complainant
Versus
1. The Jalandhar Improvement Trust, Jalandhar through its Chairman.
2. The Secretary, Local Bodies, Chandigarh.
….….. Opposite Parties.
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. Manuj Aggarwal, Adv. Counsel for the Complainant.
Sh. Eshan Sidana, Adv. Counsel for OP No.1.
OP No.2 not summoned.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that the state in a memo number 6/45/05-3SS2/1670 dated 01.03.2006 passed the Vikas Scheme in development scheme 51.5 acres, (Bibi Bhani Complex) Guru Amar Dass Nagar, Jalandhar. To this effect an offer was issued for calling application for LIG Flats in the above said scheme. In view of the above offer of OPs, the complainant applied for a LIG Flat before OP No.1 under general category and vide letter bearing No.JIT/7910 dated 28.01.2010 OPs informed to complainant that a lucky draw dated 16.08.2009 drawn in favour of complainant and complainant get the flat bearing No.1-A at first floor under the above said scheme under general category. This fact also endorsed by OPs vide resolution no.111 dated 07.10.2009. The complainant complies with all the conditions as mentioned in the letter dated 28.01.2010 and complainant as per schedule mentioned in the said letter dated 28.01.2010 made the payment of the said flat to the office of OP No.1. Last payment was made by the complainant into the office of OP No.1 in the month of January, 2015 and same was duly acknowledged and received by OP No.1 and now nothing is due towards the complainant. After the payment of the said flat, complainant approached to OP No.1 number of times to handover the possession of the fully constructed, completed and habitable flat as allotted to complainant as per the allotment letter dated 28.01.2010, but OP No.1 failed to do so on every request. As per the clause of the allotment letter No.JIT/7899 dated 28.01.2010, it was stated that the construction and development work of the flat shall be completed within 2 ½ years of allotment letter i.e. upto July 2012 and thereafter the allottee can get the possession of the allotted flat by executing an agreement for possession with the trust, but uptill date the work of the flat is not yet completed and the flat is yet not in a habitable condition, infact the flat is under the process of construction. The complainant had taken the said amount on loan from the bank and had paid approximates interest @ 12% per annum on the loan amount to the bank, in addition to 12% per annum interest charged by the JIT on the installments of the principal amount of the flat. However, the complainant is being burdened of the installments and interest of the said loan. Heavy interest was paid by the complainant to pay the installments only with the hope that the trust will handover the possession to complainant in time as per their commitment. Several requests were made by the complainant to the trust to hand over the possession of the fully constructed and developed flat as it was promised. However, it is pertinent to mention here that after the expiry of period of nearly seven years from July 2012, the date when the possession of the fully constructed and developed flat was to be handed over to the allottee as per the provision of clause 7 of the allotment letter No.JIT/7899 dated 28.01.2010, the project is still incomplete and no possession has been handed over to anyone. Even the material used to construct the said building is sub-standard and there is no hope that the flat will be completed even in the next five years. The act and conduct of the OPs amount to negligence in services and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to refund the amount of Rs.5,91,482/- paid by the complainant, punished interest paid by the complainant Rs.3841/-, restoration charges paid by the complainant i.e. Rs.8472/- alongwith interest @ 18% per annum on all above said amount i.e. Rs.6,03,795/- from the date of payment to the date of filing the complaint alongwith future interest @ 24% per annum upto date of payment. Further, OPs are directed to pay a penalty of 20% of the above amount as referred in clause 4 of the allotment letter No.7899 dated 28.01.2010 issued to the complainant and pay an amount of Rs.4,00,000/- as compensation for causing harassment and losses to the complainant and Rs.21,000/- as litigation expenses.
2. Notice of the complaint was given to the OP No.1 only as OP No.2 not required to summon. OP No.1 appeared through its counsel and filed written reply and contested the complaint by taking preliminary objections that the present complaint of the complainant is premature as such the same is liable to be dismissed. The present complaint is not maintainable in the present form as such the same is liable to be dismissed. The complainant in this complaint is assailing on two boats and availing two remedies. It is worthwhile to mention here that Mr. Daljit Singh Ahluwalia has been recently appointed as Chairman of Jalandhar Improvement Trust & the present complainant approached the worthy chairman and apprised of the fact about the allotment of the flat 1A, First Floor in scheme 51.5 acres (BIBI BHANI COMPLEX), Guru Amardass Nagar, Jalandhar and worthy Chairman called the staff dealing with the Bibi Bhani Complex Flats and the staff of the OP No.1 informed the worthy Chairman that due to unavoidable circumstances which are beyond the control of the opposite party the flat allotted to the complainant has not been constructed. Since the flat is not constructed and the Chairman having left with no alternative informed the complainant, that there are other flats which are completed in all respects out of which one flat can be allotted to the complainant and the complainant visited the flats which are to be allotted to the complainant and the other persons and after satisfying the construction and other facilities the complainant agreed to the new flat instead of 1A. 1st Floor and complainant requested the chairman that as and when fresh draw is to be made and whatever flat is to be allotted to the complainant he will be agreed to receive the possession. Accordingly the Chairman of opposite party No.1 along with other committee members like Executive Officer JIT, RDD and Assistant Deputy Commissioner made the draw on 28.08.2019 and Flat NO. 39-A, 1st Floor instead of 1A, 1st Floor has been allotted to the complainant and accordingly through registered post a letter bearing no. JIT/6282 dated 4.10.2019 duly signed by the Chairman of OP No.1 has sent to the complainant stating therein that Flat No.39-A, 1st Floor has been allotted to the complainant and if there is any amount which is due same shall be deposited by the complainant and now despite of the fact receiving the above said letter, he has filed false and frivolous complaint just to harass the opposite party. It is further averred that the complainant is stopped from filing the present complaint by his own act and conduct and omissions and as such, the present complaint is liable to be dismissed. The complainant has filed the present complaint to harass with an idea to extract/grab money from the OP as such the present complaint is liable to be dismissed. 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 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 very minutely.
6. It is admitted and proved fact that the Flat No.1A, First Floor in development scheme 51.5 acres known as (Bibi Bhani Complex) Guru Amar Dass Nagar, Jalandhar was allotted to the complainant, vide allotment letter dated 28.01.2010, which has been proved as Ex.C-2. The complainant has proved on record the receipts showing the payment of the plot made by the complainant to the OP. The receipts have been proved as Ex.C-4 to Ex.C-12. The complainant has also proved on record application under RTI Act and reply to the same Ex.C-13 and Ex.C-19. As per the allotment letter Ex.C-2, the OP has to complete the construction work alongwith amenities and ultra-modern facilities within 2½ years of the allotment and the installments of the price of the flat is to be deposited within 2½ years from the date of allotment and thereafter the possession of the LIG Flat is to be handed over by the OP to the allottees and this condition is mentioned in the document Ex.C-2 i.e. Allotment Letter as Condition No.7. It is further mentioned in Ex.C-2 as a note that if the allottee deposited the installments within 2½ years which is the 75% of the allotment money, no interest will be charged. As per Ex.C-4 to Ex.C-12, the complainant has deposited the 1/4th amount of the total amount alongwith agreement fee, cess fee and photography fee. Despite depositing of the entire amount, the OP has not delivered the possession of the flat to the complainant till today.
7. The contention of the OP is that due to unavoidable circumstances, which are beyond the control of the OP, the flat allotted to the complainant has not been constructed. Since the flat is not constructed and the Chairman having left with no alternative, then the OP allotted a new flat bearing no.39-A, first floor to the complainant instead of 1-A, which is evident from Ex.OP-3.
8. To rebut the evidence of the complainant, the OP has produced on record Ex.OP-1 to Ex.OP-3. In Ex.OP-3, the OP simply asked the complainant to take Flat No.39-A instead of 1-A, but in this letter, it is not mentioned that the construction work of the flat is totally complete with all amenities and necessities of the life, rather the complainant has established on the file that since the day of allotment of letter i.e. 28.01.2010, the OP has miserably failed to complete the construction within a stipulated period of 2 ½ years. It is pertinent to make it clear here that the complainant has already deposited the required price money of the said flat and the complainant is legally entitled to get the possession of the flat and live therein to enjoy the feeling of his own home. The complainant was deprived by the OP from enjoying the facilities and feeling of his own home for long time. 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 the construction work of the flat has already been completed and the same is fit for delivery of possession to the complainant. In Ex.OP-3, the OP admitted that due to unavoidable circumstances, the flat No.1-A, First Floor allotted to the complainant has not been constructed. As per Ex.OP-3, Flat No.39-A First Floor was allotted, but the possession of the same was also not given to the complainant. No completion certificate has been filed by the OP on record to prove that the flat, allotted to the complainant, is in habitable condition. No opinion of any expert or architect has been produced nor any architect or the contractor has been examined to show that the condition of the flat is good and flat is complete in all respects as per allotment letter. So, in the absence of this type of evidence from the side of the OP, itself shows that the flat in question is still not ready and inhabitable for human being and due to that reason, the actual and physical possession has not been given by the OP to the complainant, which is clear cut deficiency and negligence on the part of the OP. It has been held by the Hon’ble Chandigarh State Commission, cited in 2016 (4) CLT 526, in a case titled as “Ms. Rubel Goyal Vs. M/s Puma Realtors Private Limited”, which is as under:-
“Housing construction – Offer of possession – Lack of basic amenities – Alleged deficiency in service and unfair trade practice – complaint filed – Fact that certain amenities and approvals were complete/obtained after offer of possession, clearly proves deficiency of the OPs – There is nothing, on record that, complete development, in respect of plot, in question, and amenities at the site as promised, as per the Agreement, were available at site – Moreover, OPs were not only deficient, in rendering service but also indulged into unfair trade practice, by offering a paper possession to the complainant, before completing the development as also without obtaining the necessary approvals – OPs were thus, duty bound to provide all basic facilities like roads, sewerage, drinking water, street lights, drainage etc.”
It has been further held by the Hon’ble Chandigarh State Commission, cited in 2017 (3) CLT 566, in a case titled as “Usha Rani Vs. Puma Realtors Pvt. Ltd.”, which is as under:-
“Housing Construction Paper possession offered without completing development work at site Deficiency in service Complaint There was promise to make development OPs were duty bound to provide all basic facilities Obtaining of certain amenities and approvals after offer of possession clearly proves deficiency of service and unfair trade practice.”
“Housing Paper possession Non-completion of development work Deficiency in service Consumer complaint Refund of deposited amount Entitlement of On violation of material condition in handing over possession of unit in time, it is not obligatory for a purchaser to accept possession after that date Complaint entitled to refund of consideration amount Obligation to refund money received and retained without right carries with it right to interest Amount to be refunded with interest @ 12% p.a.”
9. Thus, in view of the above detailed discussion, we are of the considered opinion that the complainant is entitled for the relief claimed and accordingly, the complaint of the complainants is partly allowed and OP is directed to refund the amount paid by the complainant i.e. Rs.6,03,795/- along with interest @ 9% per annum from the date of payment, till realization and further, OP is directed to pay a compensation to the complainants for mental agony and harassment caused to the complainants, to the tune of Rs.30,000/- and further directed to pay 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.
10. 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
27.09.2022 Member Member President
