Town Improvement Trust, Bathinda vs Seema Goyal

By this order, I propose to dispose of the above-noted two revision petitions involving similar question of law and facts.

Briefly stated, facts relevant for the disposal of the revision petitions are that the respondents Seema Goyal and Tarun Goyal filed separate

consumer complaints No.705/2016 and 706/2016 alleging deficiency in service in service on the part of the opposite party trust in failure to deliver

within the stipulated period, possession of the flats allotted to them. The District Forum while accepting the plea of the respondents/complainants

regarding deficiency in service on the part of the trust directed the petitioner/opposite party in respective cases to pay to the respondents/complainants

Rs.10,000/- each p.m. as compensation w.e.f. 27.10.2013 till delivery of the actual physical possession of the flats in question to the said complainants

after providing the basic amenities with cost of litigation quantified at Rs.5,000/- in each case.

Being aggrieved of the orders the petitioner trust preferred appeal Nos.459/2016 and 461/2016. The State Commission on re-appreciation of the

evidence affirmed the order of the District Forum and dismissed the appeal vide separate orders dated 13.1.2017.

I have heard learned counsel for the petitioner trust and perused the record.

Relying on Clause 10 of the brochure, issued by the Trust at the time of inviting Applications, learned Counsel has strenuously urged that the

stipulated period of two years and six months for completion of the flats, in semi-finished condition, was tentative, and therefore, both the Forums

below have committed serious illegality in coming to the conclusion that there was inordinate delay on the part of the Trust in offering possession of

the said flats, sometime in February 2014. It is also contended that though the possession of the flats in semi-finished condition, was offered to the

Complainants, in the year 2014, they refused to accept the same on the plea that the basic amenities were still not in place in the Complex.

The similar issue on identical facts came up before Bench No.1 of this Commission in a set of revision petitions No.96 to 109 of 2017. The Co-

Ordinate Bench dismissed the said revision petitions vide its order dated 21.4.2017 with following observations: -

“As regards the submission that since the period for completion of the flats, fixed in the afore-noted Clause was tentative and therefore, it could not

be held that the delay in the offer of possession in the year 2014 was an inordinate delay, we are of the view that even going by the version of the

Trust that the offer of possession was made sometime in the year 2014, such an offer after a lapse of almost two years over and above the stated

tentative period of 2 years 6 months, cannot be considered as reasonable delay. As a matter of fact, Resolution No.56, passed by the Trust on

17.11.2013, relied upon by the State Commission, shows that even according to the Trust, the possession of the flats was to be delivered by

26.10.2013. Therefore, the question whether there was inordinate delay in completion of the flats, has to be examined, keeping in view the said date,

i.e., 26.10.2013. On this aspect, as well as on the allegation that the Complainants had declined to accept the offer of possession made in the year

2014, has observed as follows:

“At the time of arguments it was admitted by the learned counsel for the Opposite Party that Resolution No.56 passed by the Opposite Party was

sent to the State Government for approval and that in Agenda Item No.4 thereof it was mentioned “the possession of the Flats was to be delivered

by 26.10.2013 and that the same were not complete during that period and the period of six months more shall be taken for delivering the possession to

the allotteesâ€. That admission made by the Opposite Party in its own resolution proves beyond any doubt that the possession of the Flat was to be

delivered to the complainant on or before 26.10.2013. Admittedly, the same was not given to him by that date and it amounts to deficiency in service

on the part of the Opposite Party .

The next question to be decided is, whether the offer of possession made to the complainant, vide letter dated 21.2.2014 Ex.OP-1/5 was a valid

offer? That very letter was proved by the complainant on the record as Ex.C-10. It is mentioned in that letter itself that the work of installing the lifts

was still not complete. The complainant was asked whether he was still ready to accept that offer of possession without the completion of that work.

Therefore, it cannot be said that it was a valid offer of possession . It is pertinent to note that after receiving that letter the complainant had sent his

reply Ex.C-11, in which he detailed a number of works which were incomplete and were to be carried out for the completion of the semi-finished flat.

After the complainant gave that reply the Opposite Party kept silent and that silence amounts to admission of the facts stated in that reply. The

complainant also proved on record letter dated 3.4.2014, Ex.C-12, which was written by its Executive Engineer to the Regional Deputy Director,

Local Self Government Department. In that letter he gave the details regarding the flats, which were being constructed in this Scheme.

He also mentioned therein that the work regarding the H.T.L.T. electricity, fire-fighting, lifts and land scaping was still incomplete . Thus the Opposite

Party itself had been admitting that works were still incomplete whereas as per the terms and conditions agreed between the parties, it was the

possession of the complete semi-finished flat, which was to be delivered to the complainant. The Opposite Party cannot escape its liability just by

sending letter dated 21.2.2014 offering the possession of the Flat to the complainant, which was never complete in all the respects. Thus, the offer

made by the Opposite Party was not a valid offer. In these circumstances, it is to be held that the findings recorded by the District Forum are correct

and there is no scope for interfering with the same.

(underlined for ready reference)

The afore-extracted concurrent findings of fact being based on cogent material, in the form of Trust’s own record, and not challenged in these

Petitions as being perverse on any ground whatsoever, do not suffer from any material irregularity or illegality, warranting interference.

Thus, the question surviving for consideration is as to whether or not the direction by the Fora Below to the Trust to pay to the Complainants

compensation of 10,000/- per month, is justified? On this aspect, the State Commission has observed as under: Â

The District Forum allowed compensation to the complainant at the rate of 10,000/- per month with effect from the date on which the possession

was to be delivered to the complainant till the date of delivery of actual possession of the flat after providing all the basic amenities. This compensation

cannot be said to be on the higher side keeping in view the price of the flat and that for the payment of instalments the complainant had obtained loan

from the Bank. In his letter dated 11.4.2014, Ex.C-11, he has specifically mentioned that he was living in tenanted house and is also paying interest on

the loan obtained by him from the Bank on account of the non-delivery of the possession of the flat.

In the light of the afore-extracted factual scenario, the said compensation cannot be held to be excessive or unreasonable in any manner.

Nevertheless, as it is pointed out by the learned Counsel appearing for the Trust that all the basic amenities in the Complex are available and many

similarly situated allotteess have already been put in possession and are residing in their respective flats, we direct that if the Trust offers possession of

the flats in question to the Complainants, in the condition these were to be made available under the Scheme, with basic amenities, like sewerage,

drinking water supply, lifts etc., if these were to be provided, the Trust shall not be liable to pay to the Complainants/allottees the compensation, as

directed by the lower Fora, after the expiry of two months of the date of the said offer. This direction is being issued without notice to the

Complainants in order to avoid unnecessary inconvenience to them and additional financial burden on the Trust in bearing their travel and allied

expenses. Resultantly, there being no Jurisdictional error in the impugned orders, on both the afore-noted grounds canvassed before us, all the Revision

Petitions fail and are dismissed accordingly.

I do not find any reason to differ with the reasoning of the Co-Ordinate Bench in the above-noted revision petitions. Accordingly, I am of the view

that the petitioner trust has failed to show any jurisdictional error or material flaw in the impugned orders.

Consequently, the revision petitions fail and are dismissed accordingly.