BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.535 of 2019
Date of Instt. 05.11.2019
Date of Decision: 20.03.2023
Vijay Kumar Attri S/o Maru Ram Attri, R/o G017, Dera Baba Jaimal Singh, Tehsil Beas, District Amritsar.
..........Complainant
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. Deepak Sidana, 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.35, Second Floor, Block-A, for a total sum of Rs.3,70,200/- was allotted to the complainant vide allotment letter no.JIT/4798 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, total Rs.3,70,200/-. 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. Upto the month of March, 2009, all the payments, fees, costs of documentation and interest on the delayed payments towards the sale price of the flat, were made as per the demands raised by the officials of the OP but the possession of the flat was not given to the complainant even after repeated and continuous requests since 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 to the flats owners. The complainant was also issued a letter No.JIT/3080 dated 11.09.2009 offering him possession of flat and 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 cess charges. However, on continuous and constant protest by allotees, the said enhanced amount was first reduced after admitting calculation mistake and later on, it was totally waived and promised to refund the enhanced amount but the said enhanced amount was not refunded. The allottees were called by the officials of the OP in its office situated at Skylark Chowk, Jalandhar and some of them visited there 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. Upon taking possession of the flats by the allottees, from the various other defects, the allottees 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 approach road was not proper and was quite inadequate, there was no supply of water in the flats and sewerage pipelines were not connected. And on the other hand, there was no explanation from concerned officials of the OP when these above defects were highlighted. The complainant could not shift there as the said flat was not fit for living. The complainant came across many other allottees for the flats in the said complex who were also complaining about the similar problems. The problems of all most all the allottees were common as the essential infrastructural works as well as basic amenities such as proper approach road, piped LPG, water supply and sewerage connection were not provided when the possession of the flats was commenced to be given from March, 2009. Since these grievances of all the allottees are common, as such, all most all the allottees of this complex of the OP jointly and severally met the concerned officials of the OP many a times to get these basic amenities, but these have not been provided so far. In order to agitate the matter in issue before the concerned higher authorities, the allottees also got highlighted their grievances in the electronic media and in the print media for redressal of their grievances. Till today, in the complex of 888 flats of Indira Puran only about 65 % 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.4,32,769/- 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 complaint of the complainant is not maintainable in the present form, as such, the present complaint is liable to be dismissed. It is further averred that the flat in question has been allotted to the complainant, vide letter No.4798 dated 4.09.2006. The terms and conditions has been mentioned in the allotment letter. As per the clause 5 of the said allotment letter, the complainant was required to execute the sale agreement within 30 days from the issue of the allotment letter along with two witnesses and agreement for sale of the flat was executed between opposite party and complainant on 27/9/2006 and the complainant was bound by all terms and conditions mentioned in agreement for sale and it is further specifically mentioned that the possession of the flat shall be handed over to the complainant after making the payment of installments as well as completion of documentation by the complainant and he has also given the affidavit which is a forged and fabricated one and given the same by concealing the true facts from the opposite party and it was stipulated in Allotment Letter that after the receipt of full and final payment of installments possession of the flat shall be delivered after a period of 2 ½ years. It was further stipulated that the possession of the flat shall be handed over after completion of the documents and in this case, the last installment was to be paid on or before 04/03/2009 and after paying the last installment the complainant never approached the opposite party for completing the documentation for taking the possession of the flat in question. The OP suo moto approached the complainant vide a letter dated 11.9.2009 bearing No.JIT/3080 informing him regarding the fact that the flat was complete and ready and requested the complainant to take the possession of the flat within 30 days from the issuance of the letter to which the complainant approached the opposite party for the purpose of taking the possession on 07.10.2009 and vide letter dated 07.10.2009 the complainant requested the OP for giving the possession of the flat and official noting was made on 07.10.2009 that the flat is incomplete in all respects and the possession can vbe handed over to the complainant and the physical possession of the flat accordingly, was handed over to the complainant on 07.10.2009 at the spot. After verifying the construction work, the complainant took the physical possession of the flat in question and he executed a receipt duly signed by him stating therein that the wood work, internal water supply, sewer, electrification and construction work is satisfactory, and as such, meaning thereby the physical possession has been received by the complainant on 07.10.2009 and now the complainant filed this false and frivolous complaint to the knowledge of complainant and as such, the same is liable to be dismissed. It is further averred that the complainant is guilty of concealment of material facts. It is further averred that the complainant is guilty of concealment of material facts. It is noteworthy that since the date of taking the possession i.e. 07/10/2009, no such grievance/complaint representation of any sort has been raised or even whispered by the complainant before the opposite party as to the possession of the flat or otherwise as alleged in the complaint at any point of time for a period of approximately more than 10 years, which fully establishes that the complainant was in possession of the flat to his full satisfaction without any objection on any ground and now the complainant is trying to approbate and reprobate at the same time by leveling the false allegations in the complaint without any basis against the opposite party for the reasons best known to him that too after the lapse of period of more than 10 years, as such, the present complaint of the complainant is liable to be dismissed. It is further averred that as per clause No.3 of the terms and conditions of the agreement for sale executed between the complainant and opposite party, it is clearly stipulated that possession of the semi finished flat shall be delivered by the opposite party to the complainant on ‘As is where is Basis' and it was also agreed to by the complainant that he shall maintain the flat at his own costs in satisfactory condition after possession thereof is taken by him which means the present complaint is vague, false and frivolous to the knowledge of the complainant, as such, the present complaint is liable to be dismissed. It is further averred that the complaint of the complainant is time barred and he has admitted that he has received the physical possession of the flat in question from the opposite party on 07/10/2009 and he has signed the possession slip/receipt stating therein that he is satisfied with the wood work, internal water supply, sewerage, electrification and construction work and now he has filed the present false and frivolous case that too a time barred, filed after lapse of more than 10 years of receiving the possession, the statue provide the complaint is to be filed within two years, as such, the complaint is liable to be dismissed being hopelessly time barred. It is further averred that the complainant is not a consumer as the flat has been purchased by the complainant for commercial purposes, as such, the present complaint is liable to be dismissed. This Commission has no jurisdiction to entertain, try and decide the present complaint. On merits, the factum with regard to issuance of letter bearing No.JIT/4798 dated 04.09.2006 to the complainant is admitted and the facts regarding allotment of the flat to the complainant 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 counsel for the complainant very minutely.
6. It is not disputed that the complainant was allotted LIG Flat No.35, Second 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.3,70,200/- 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-9. 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-10 and take the possession. The complainant paid the amount of Rs.56,569/-, vide Ex.C-11 to Ex.C-13. 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. As per the contention of the complainant, the symbolic possession was given by the OP to the complainant, vide Ex.C-14 and this document was got signed by the OP from the complainant in the office only and no physical possession on the spot was given to the complainant. The matter/grievance was agitated and highlighted. The photocopies of complaints, news cuttings have been proved as Ex.CB/5 to Ex.CB/41.
7. The counsel for the OP submitted that the complaint is not maintainable as the same is time barred. The possession was delivered to the OP on 07.10.2009, vide Ex.OP-7 and the complainant himself 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 10 years and after 10 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. The complainant had purchased the flat for commercial purposes and now he is not getting the profit therefore he has filed the present complaint.
8. The contention raised by the OP that the original allottee purchased the flat from the OP for commercial purpose, as such, this Forum has no jurisdiction to try and decide the present complaint, is not tenable as the OP has not filed on record any document nor has proved this fact nor has examined any witness to prove that the complainant has got allotted the flat for the commercial purposes. It has been held by the Hon’ble Chandigarh State Consumer Disputes Redressal Commission, U. T., in a case titled as “Usha Rani Vs. Puma Realtors Pvt. Ltd. & Ors.” 2017 (3) CLT 566 that “Purchase of resident flat-whether complainant a consumer held, yes- unless it is proved that he or she had booked the same for commercial purpose, purchaser is a consumer No evidence to show that plot in question was purchased by complainant, by way of investment, with a view to earn profit in future complainant falls within definition of ‘consumer’.”
9. The contention of the OP that the possession of the flat has been delivered to the complainant. It is proved that only symbolic possession has been given without amenities and without obtaining completion/occupation certificate. As per Ex.C-14/OP-7, 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 and as per the recital mentioned in Ex.C-14/OP-7, 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/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-14/OP-7. As per Ex.C-14/OP-7, on 07.10.2009 electrification and sewerage water supply was satisfactory, whereas on 11.04.2012, it was intimated that it is almost complete. This clearly shows that on 07.10.2009 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. 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.
10. 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. Entire payment including enhanced amount has been made by the complainant. So from all the angles the OP has failed to prove his case and thus, the complainant is entitled for the relief.
11. 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. 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.4,26,769/- 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.
12. 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
20.03.2023 Member Member President
