BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.421 of 2019
Date of Instt. 16.09.2019
Date of Decision: 23.07.2024
Krishan Gopal son of Veer Bhan resident of 4, Saini Colony, Industrial Area, Jalandhar.
..........Complainant
Versus
The Jalandhar Improvement Trust, Jalandhar through its Chairman.
….….. Opposite Party
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. Bhupesh Vaid, 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 was allotted LIG Flat No.87, 2nd Floor, Block-A Vikas Scheme (Indra Puram), Master Gurbanta Singh Enclave, Jalandhar on 04.09.2006 in a lucky draw dated 13.06.2006, vide allotment letter No.JIT/4484 dated 04.09.2006. The complainant had deposited all the requisite paper and performa for the registration application No.35122. The complainant had also deposited all the installments in time. The possession of the Flat was also given to the complainant, but without facilities like incomplete roads, without sewerage system and without water supply etc. The complainant waited for favourable response from the OP till today, but the OP failed to provide the same. The complainant has also served a legal notice dated 24.05.2019 upon the OP, but all in vain 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 refund the amount of the Flat i.e. Rs.3,74,805/- with interest @ 18% per annum from the date of deposit upon the date of actual payment of realization and to pay Rs.2,00,000/- as damages and Rs.22,000/- 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, as such, the present complaint is liable to be dismissed. It is further averred that 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 as the OP has received the possession of the flat in question on 15.10.2009 and he has signed the possession slip/receipt stating therein that he is satisfied with the wood work, internal water supply, sewerage etc. and now he has filed the present false and frivolous complaint that too time barred, filed after lapse of 10 years of receiving the possession. On merits, the factum with regard to purchase of the Flat and payment to the same is admitted, but the other allegations as made in the complaint are categorically denied. It is also denied that no facility has been given. Lastly it has been 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 very minutely.
6. It is not disputed that the Flat No.87, Second Floor was allotted to the complainant, vide allotment letter dated 04.09.2006, which has been proved as Ex.C2/OP-1 and the earnest money of Rs.18,000/- was paid by the complainant. The complainant has proved on record the copies of the receipts of payment of installments Ex.C-3 to Ex.C-10. The grievance of the complainant is that despite taking the installments and the entire amount, the facilities like proper roads and complete sewerage system and water supply has not been provided to the complainant. In the absence of amenities, it is very difficult to reside there. The photocopies of news cuttings/clips and complaints, which highlighted the conditions and progress in the Flat have been proved on record as Ex.C-22 to Ex.C-37.
7. The contention of the OP is that the present complaint is time barred and has been filed after a lapse about 10 years as the possession has been delivered by the OPs to the satisfaction of complainant, but this contention is not tenable as the news publication have been proved on record by the complainant, which are from different newspapers and the same have been proved as Ex.C-22 to Ex.C-37. These news publication shows that the facilities and development in the Indira Puram is incomplete, meaning thereby there is no development at all. 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. In the present case, the flat owners also wrote number of letters to the OPs and Govt. to provide development facilities, which have been proved, as Ex.C-16 to Ex.C-21. The OP has produced on record documents Ex.OP1 i.e. Allotment Letter, Ex.OP-2 Affidavit, Ex.OP-3 Possession Slip.
8. In the present complaint the photographs and news publications show that the amenities are not complete despite the entire amount was paid by the complainant. The conditions mentioned in the allotment letter have not been complied with by the OP as the Flats were not ready within prescribed period, therefore the fault is on the part of the OP. 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 they had handed over the possession of the flat complete in all respect, including the amenities, as per the condition of Ex.C-2. The OP has produced on record Possession Slip, but has not produced the occupation and completion certificate duly issued by the competent authority showing that the basic amenities have been duly provided at the site. In the absence of the facilities and non completion of flat the possession is merely symbolic possession and not actual and physical possession. Even otherwise, Completion Certificate, as envisaged under section 14 of the Punjab Apartment and Property Regulation Act, 1995 (in Short "PAPRA") is the most essential document, which should have been produced with regard the matter in issue but the same has not been produced by the OP to prove that Flat in question as well as basic amenities in the entire complex have been completed in all respects. In such circumstances, as per law laid down by the Hon’ble State Commission in a case titled as “Manoj Bagroy Vs. M/s N. H. Matcon”, the complaint is within limitation and 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’. Thus, the complainant is entitled for the relief.
9. In view of the above detailed discussion, the complaint of the complainant is partly allowed and OP is directed to refund the amount paid/deposited by the complainant for Flat with interest @ 9% per annum from the date of making deposits till its realization. Further, OP is directed to pay a compensation of Rs.30,000/- for causing mental tension and harassment to the complainant and litigation expenses of Rs.8000/-. The entire compliance be made within 45 days from the date of receipt of the copy of order and in case, the same is not done within 45 days, the OP shall be liable to pay additional interest @ 3% per annum to the complainant, on the amount of the Flat deposited by the complainant. 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
23.07.2024 Member Member President
