BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.387 of 2018

      Date of Instt. 17.09.2018

      Date of Decision: 03.03.2022

Tilak Raj Kumra (now deceased) through his LRs:-

1.       Smt. Subh Lata, aged about 75 years, wife of Late Sh. Tilak Raj        Kumra, R/o House No.229, Bank Enclave, Phase-I, Jalandhar City-144003.

2.       Bharat Bhushan Kumra aged about 48 years, son of Late Sh.   Tilak Raj Kumra, R/o House No.229, Bank Enclave, Phase-I,       Jalandhar City-144003.

3.       Vishali Bhalla, aged about 51 years, Daughter of Late Sh.        Tilak Raj Kumra W/o Shri Amarjit Bhalla, R/o House No.28,     Backside KMV Collage, Vikas Puri, Jalandhar City-144001.

4.       Meenakshi Puri aged about 54 years, daughter of Late Sh. Tilak        Raj Kumra, Wife of Anil Kumar Puri, R/o House No.119, Lane          No.3, Shiv Vihar Wadala, Jalandhar-144003.

..........Complainants

Versus

Jalandhar Improvement Trust, Model Town Road, Jalandhar City. 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 the OP.

Order

Dr. Harveen Bhardwaj (President)

1.                This complaint has been filed by the complainant, wherein it is alleged that the complainant attracted and allured by the OP venture for development of Bibi Bhani Complex LIG Flats, published and advertised by OP to provide shelter to needy public with ultra-modern facilities with standard quality and standard construction, applied for LIG Flat. That the complainant submitted application No.71144 under Pensioner Category alongwith Demand Draft of Rs.60,000/- dated 26.02.2009, bearing No.705140. Lucky draw for allotment of LIG Flats applied was organized on 16.02.2009 and the complainant was allotted Flat No.7-A Ground Floor. The draw was confirmed vide resolution No.111 dated 07.10.2009 and the same was approved by State Government Punjab vide memo dated 19.11.2009. The complainant deposited the entire amount in the sum of Rs.6,26,402/- in installments as per allotment letter stipulated date upto 28.01.2005. That the complainant had deposited all the requisite papers for the registration of the application with the necessary fee through demand draft Rs.60,000/- duly acknowledged vide Sr. No.71141 dated 06.02.2009 and completed all other formalities whichever were asked for within the stipulated period. The entire payment in the sum of Rs.6,26,402/- was made to OP before schedule time against proper receipts. That as per the order of this Commission dated 17.08.2016, the Commission gave direction to the OP to allot flat at equal in size and at the same price at ground floor to the satisfaction of the complainant within one month from the date of receipt of copy of this order, failing which OP shall be liable to refund the entire amount to the complainant alongwith interest @ 9% per annum from the date of the receipt of the price of the flat from the complainant till the payment is made to the complainant and also directed to pay the costs of the litigation to the tune of Rs.3000/-. But the OP in compliance the order allotted alternative flat No.10 on ground floor in lieu of already allotted flat No.7 and also paid costs of Rs.3000/- and failed to comply with the order in letter and spirit and only paper formality routinely and mechanically made by issuing intimation letter No.4172 dated 02.11.2016 allotment of alternative flat. It is apposite to submit that the OP has not executed any document in respect to allotment of alternative flat to the complainant nor has taken any steps to deliver physical possession habitable condition with promised and agreed amenities and facilities. That due to severe delay of handing over physical possession of flats habitable, several complaints of other home buyers crying foul have been filed pending in this Commission. There was no hope in sight of delivery of physical possession with all amenities. The depressed, disappointed and frustrated complainant on visit on the site of the flat found that allotted alternative flat is in shabby condition and not in habitable condition to deliver physical possession in consonance with agreed and promised basic facilities. That the complainant has obtained the present condition of the Flat of Bibi Bhani Complex from Real Architect Building and Engineer and valuer Jalandhar of Flat No.10-Ground Floor allotted in lieu of Flat No.7-A by the OP to the complainant as detailed above. Original report of 11 pages is on the file and the last para of the report is as under:-

1.       Flat is not ready to occupy.

2.       The quality of construction and design is not as promised in the         brochure.                                                                                

3.       Sanitary and electrical fitting have not been installed properly.

4.       Water supply and sewerage system is not working.

5.       the complex is neither surrounded by boundary walls nor having       gate at the entrance. Hence, not safe for a family to live in.

6.       the surroundings within the complex are not livable.

7.       approach road and roads within the complex are not drivable.

8.       proper parking space for vehicles has not been developed.

9.       children park has not been developed.

10.     construction within the complex is still going on.

                    That non-completion and delay in delivery of physical possession per se attract odium of deficiency, negligence and unfair and deceptive trade practice envisaged under the provision of Consumer Protection Act on the part of the OP 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/refund Rs.6,26,422/- deposited by the complainant with interest @ 12% per annum from the date of payment till actual realization  and further OP be directed to pay Rs.10,000/- as litigation expenses and Rs.2,00,000/- as compensation for causing mental tension and harassment to the complainant.

2.                Notice of the complaint was given to the OP, who filed reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable as there is no deficiency in housing service by the answering OP. That the OP has duly complied with all the duties as are contracted between the parties to present complaint hence the present complaint is a fishing and roving enquiry. That the complainant wants to brow beat the OP to submit to illegal and exaggerated demand, which is illegal. Hence the present complaint is liable to be dismissed. That the present complaint is barred under principles of res-judicata ad Order 2 Rule 2 CPC. It is further averred that the complaint is time barred and liable to be dismissed. That the OP has already complied the order passed by this Commission. On merits, it is admitted that the plot in question has been allotted to the complainant and he has also deposited the entire price of the plot, but the other allegations as made in the complaint are categorically denied and lastly prayed that the complaint of the complainants is without merits and the same may be dismissed.

3.                Rejoinder not filed by the complainant.

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

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

6.                It is admitted and proved fact that the complainant applied for the allotment of the plot in LIG Flats in Bibi Bhani Complex, Guru Amar Dass Nagar, Jalandhar. It is also admitted and proved fact that he was allotted the Flat No.7-A under the development scheme 51.5 acre as per Ex.C-2. The documents Ex.C-1, Ex.C-3, Ex.C-4 and Ex.C-5 to Ex.C-11 show that the entire amount of the flat was deposited by the complainant. It is also proved that vide Ex.C-12, the OP was directed to

allot alternative flat equal in size and at the same price to the complainant at ground floor, vide order dated 17.08.2016 by the Consumer Forum. In compliance of the order of the Forum, the complainant was allotted the Flat No.10-A/GF, vide letter dated 02.11.2016 Ex.C-13. Now the contention of the complainant is that though the OP is asking the complainant to get the possession of the flat, but the flat is not ready as per the allotment letter and required amenities are not being provided. The allotted flat is having shabby condition and is not in habitable condition to live. He has proved on record the report of Architects Building Engineer’s and Valuers Ex.    C-14, which shows that the flat is not in habitable condition and even the surroundings of the flat are not livable. The flat is not ready to occupy. Though the OP has produced on record the document Ex.OP-1 to show that the complainant has been asked to take over the possession of the flat, vide letter dated 22.10.2018, but despite the letter, the complainant has not taken the possession of the flat, but the OP has not produced on record any document to rebut the case of the complainant. Ex.C-14, the report of the Architect is consisting of the photographs of the spot, which shows the existing condition of the flat allotted to the complainant as well as the surroundings, sanitary condition and boundary wall, which does not seem to be livable. The OP has not produced on record any document or photographs denying the photographs shown in Ex.C-14. 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. 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.”

7.                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.6,26,402/- along with interest @ 6% 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.

8.                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     

03.03.2022         Member                          Member           President