Haryana

Panchkula

EA/09/2015

RAJ KUMAR DHINGRA. - Complainant(s)

Versus

ARMY WELFAREHOUSING ORGANIZATION. - Opp.Party(s)

AJMER SINGH.

21 Sep 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.                                     

Execution Application No.	:	9 of 2015
Date of Institution	:	20.02.2015
Date of Decision	:	21.09.2015

 

Raj Kumar Dhingra s/o Sh.Lal Chand Dhingra, R/o 953, Sector-2, Panchkula.

 

                                                                                                 ….Complain­ant

 

Versus

 

1.       Managing Director, Army Welfare Housing Organisation (AWHO), Kashmir House, Rajaji Marg, New Delhi-110011.

2.       Col. Satish Kumar and now Col. Surinder Sharma, Project Director, Army Welfare Housing Organisation (AWHO), Sandeep Vihar, Sector-20, Panchkula, Haryana.

 

                                                                                              ….Opposite Parties

Before:                 Mr.Dharam Pal, President.

                             Mrs.Anita Kapoor, Member.

                             Mr.S.P.Attri, Member.

 

For the Parties:     Complainant in person.

Mr.Sudhir Mittal, Adv., for the Op alongwith Col. Surinder Sharma.

 

ORDER

(Dharam Pal, President)

 

1.       The complainant/applicant-Raj Kumar Dhingra has filed the present execution application for execution of the order dated 14.06.2010 passed by this Forum. He pleaded therein that the complaint filed by him against the Ops was decided by this Forum vide order dated 14.06.2010 and they were directed to:-

1. To allot the flat/Economy apartment to the complainant within a period of 6 months in Sandeep Vihar, Sec-20 or Sec-27, Panchkula failing which the complainant will be allotted a apartment in their housing project in Sec-114 (Mohali) as per his registration at the same price as well as on the same terms and conditions as detailed in (Ex.C-1).
2. It is also made clear that complainant will retain his lien as per his present waitlist seniority on any vacancy that may arise in Sandeep Vihar, Sec-20 or Sec-27, Panchkula. Also that in case the complainant exercises his right in case of vacancy in sec-20/27 he will have to give up flat allotted to him in sec-114 Mohali.
3. To pay Rs.2000/- as compensation for harassment suffered by the complainant.

2.       Aggrieved by that order, the Ops filed the first appeal No.1162 of 2010 before the Hon’ble State Commission. The appeal was decided by the Hon’ble State Commission vide order dated 06.12.2011 and the appeal of the Ops was dismissed and the Ops were directed to pay Rs.10,000/- as costs.

3.       Against that order, the Ops filed the revision petition No.1110 of 2012 before the Hon’ble National Commission. The Hon’ble National Commission vide order dated 22.04.2014 remanded the revision petition by passing the following order:-

“In view of the position described above and looking at the entire factual matrix of the case, it would be appropriate that the entire record concerning the registration, determination of seniority and allotment of these DUs is called by the State Commission from the office of the petitioner and then scrutinized to determine whether there has been irregularity in not accommodating the complainant in the allotment of these flats/DUs. With these observations, this revision petition is allowed and the matter is remanded back to the State Commission with the direction that they should call for the entire record from AWHO and carry out the necessary scrutiny in the presence of the parties and then determine whether there had been any injustice done to the complainant on the part of the petitioner/OP. The parties have been directed to appear before the State Commission on 24.07.2014. There shall be no order as to costs.”

4.       Upon this, the Hon’ble State Commission decided the appeal vide order dated 05.12.2014 and passed the following order:-

“18.  In view of the above, it is established on the record that there has been arbitrary fixation of seniority against the rules and as suited their convenience and also in allotment to widows in their category. The organization was created for the welfare of serving/retired defence personnel and was expected to act in a transparent manner. Thus, this Commission does not find any infirmity in the impugned order passed by the District Forum.

19.     Accordingly, the appeal is dismissed being devoid of any merits.”

5.       Against the abovesaid order, the Ops again filed the revision petition No.688 of 2015 before the Hon’ble National Commission and the Hon’ble National Commission vide order dated 22.05.2015 dismissed the revision petition of the Ops while deciding the abovesaid revision petition. The Hon’ble National Commission has observed as under:-

“17.  This plea is more palliative and does not delve deep enough to the roots of malady. Some glaring mistakes which are discernible, have been committed by the Ops. According to the complainant, a computerized draw was held on 09.07.2004. The complainant objected and required the Ops to produce the details as to who was the Presiding Officer and what was the composition of the Board, by whom, the draw was held, etc. It is unfortunate to note that the said record of infinite value was not produced on record. This smacks of a fig leaf job, i.e., the concealment of questionable nature.

18.     Secondly, as a matter of fact, there is not even an iota of evidence which may go to reveal that any draw, has ever been held by the Ops. There is not even an iota of evidence which may go to reveal that the advance notice was given to the allottees/applicants about the manner, date, time, etc., of the draw to be held. All these important facts/information was kept under the hat. Their actions are neither open or above board. It has given poor account of Ops.

19.     Thirdly, Rule 31(a) clearly, specifically and unequivocally provides that in the Annual Registration Scheme, the seniority would reckon from the date of demand draft and the complainant was informed vide letter Ex.C-1 intimating about his seniority and that there was no scope of any draw. Consequently, the entire draw smacks of malafide intention on the part of the Ops. The procedure for drawing seniority amongst the applicants or in the lot of widows in their respective categories, the entire process lacks transparency.

20.     The creation of two-three Schemes is itself confusing. When the apartments were to be allotted to 348 persons, what was the need of keeping waiting list, for as many as 999 and more persons in the wait list, when everybody was to pay around Rs.95,000/-. The Ops were well aware of the fact that they have got less apartments in this Scheme. Therefore, they should have kept waiting list for persons not exceeding 10 in number or at the most, 25 persons. The petitioners have chosen a new method to feather their own nest, i.e. to make profits at the expenses of others.

21.     It is clear that one of the allottees did not comply the formalities, as per Rule 52, and his allotment should have been cancelled, which was not done. The draw was held in the year 2004 and the allotments had already been made further intimating in the letter mentioned at Ex.C-4, that all the allottees had paid more than 80% without naming the allottee. It was specifically informed that one of the allottees had not completed the formalities, till the year 2009. His allotment was to be cancelled as per Rule 52. The name of that person was disclosed at the eleventh hour, but no explanation about him saw the light of the day. It appears that the petitioners were trying to help that person, out of way.

22.     The State Commission has observed, as under:-

“15.  ……… The opposite parties themselves have placed on the record, the office noting that as against the provision of twelve dwelling units in the widows quota, there was only one applicant, yet, the office of the opposite parties put up a note before the Managing Director suggesting that though there was only one applicant, yet recommended that two dwelling units be kept reserved for widows and the remaining units reserved for widows be merged in general category.

16.     There was only one eligible applicant in widows category. The opposite parties could not have kept two more units reserved. Yet, even if that, taking into consideration, yet, as per list of widows, who have been allotted dwelling units, exceeds the three. As per the list of widows (Annexure A-17/A) placed on the file, who have been allotted dwelling units, the names of Mrs. Anju Sharma, Sr. No.722, Mrs.Pushpa Bhagi, Sr. No.724, Mrs. Sudha Nayyar, Sr. No.728 and Mrs.Shivani Vats, Sr. No.729 appear. The complainant was at Sr.No.723. Thus, the allotment to Pushpa Bhagi, Sudha Nayyar and Shivani Vats was not only against the rules but also in excess of the applicants against widows quota. Not only that, as discussed in the earlier part, as per the opposite parties, the draw was held on July 9^th, 2004, while all these widows had applied after that, that is July 9^th, 2004. Therefore, they were not even the applicants on the date the draw was held.

17.     One of the widow, who is allottee, that is, Mrs.Sudha Nayyar was at Sr.No.728, was more than 65 years on the date of her application. In the application form submitted by her and placed on the file by the opposite parties, she has given date of birth as April 27^th 1939 and has submitted the application on July 19^th 2004. She completed 65 years on April 26^th, 2004. Thus, she could not have been allotted flat in the reserved category of widows out of widows quota”.

23.     Consequently, the orders rendered by the fora below cannot be faulted. The ‘pick and choose’ policy followed by the AWHO is deprecated. In the eyes of law, nobody is senior or junior, low or high, rich or poor, senior rank or junior rank, but all are to be treated, equally. The revision petition is meritless and, therefore, the same is dismissed.”

6.       Show cause notice u/s 27 of the Consumer Protection Act was ordered to be issued to the respondent for 12.08.2015. After service of that notice Sh.A.K.Tiwari, Advocate for the Ops alongwith col. Surinder Sharma-Op No.2 appeared and filed an application stating therein that the Ops have vide their letter dated 24.07.2015 offered a Super Delux Apartment in Sec-114, Mohali which is equalent to Economy Apartment that was applied for by the complainant in Sector-20, Panchkula. The execution application was adjourned to 19.08.2015 for filing objection on behalf of the complainant if any. On 19.08.2015, the complainant filed the objections and submitted that the letter dated 24.07.2015 issued by the Ops addressed to the complainant vide which they requested the complainant for application for registration of a dwelling unit at Sector-114, Mohali project, cannot be termed as an offer letter because in any offer/booking letter the details of costs, payment schedule, tentative schedule/date of completion, present status of project etc is given. The abovesaid letter is nothing but an eye wash only to avoid the appearance of MD of the AWHO before this Forum. He further submitted that the Ops have sent the abovesaid letter on receipt of the notice for penalty u/s 27 of the CPA. He further submitted that even in Sec-20, Panchkula, the Ops have allotted 126 DU of SDA (super deluxe apartment) and 183 DU of DA in 2012 and 2013 i.e. after the order of this Forum dated 14.06.2010. He further submitted that he applied for allotment of DU in Sec-20, Panchkula keeping in view its proximity to command hospital, CSD, relatives and friends circle. Moreover, the complainant lived in Panchkula for more than 13 years in the rented accommodation. He also submitted that the junior registrants were given possession in the year 2008 but the complainant was left out and dragged in endless litigation.

7.       From the perusal of the letter dated 24.07.2015 placed on record by the Ops vide which they informed the complainant that he is the senior most wait listed registrant of Economy Apartment at Sec-20, Panchkula. However, due to non withdrawal/cancellation of an allottee from the Economy Apartment segment, EA could not be allotted to him. In the above letter, it has also been mentioned that as per directions of this Forum and Hon’ble State Commission/Hon’ble National Commission, they offered a SDA at Sec-114, Mohali which is equalent Economy Apartment that was applied by him in Sector-20, Panchkula. The details of the project and DU to include the configuration, cost etc, are given on AWHO website under the latest cost link. The Ops asked the complainant to download the application form for registration from their website or visit project Director, Mohali for printed application form and apply/submit the same to headquarter AWHO by 24.08.2015 and he will be allotted on receipt of the application form.

8.       From the above stated facts, it reveals that till date the Ops have not allotted any unit to the complainant in Sec-20/27, Panchkula in compliance of the order of this Forum and the order passed by the Hon’ble State Commission and Hon’ble National Commission as mentioned above. By sending the letter dated 24.07.2015, the Ops asked the complainant to apply for the DU afresh, which is not in accordance with the order passed by this Forum and the Hon’ble State Commission/Hon’ble National Commission. The Ops also want to re-open the entire case which has already been decided instead of complying the orders.

9.       In view of the circumstances explained above, bailable warrants of the Ops were issued for 15.09.2015. However, the Ops challenged the order before the Hon’ble State Commission in revision petition No.69 of 2015 which was decided on 14.09.2015 and the Hon’ble State Commission passed the following order:-

“4.     Be that as it may, learned counsel for the petitioners has further urged that compliance of the orders June 14^th, 2010, December 05^th, 2015 and May 22^nd, 2015 passed by District Forum, this Commission and National Consumer Commission, New Delhi shall be complied with and AWHO shall be represented by Col. Surender Sharma, Project Director, who shall appear before the District Forum on September, 15^th, 2015, the date fixed. Hence, presence of Major General D.K. Purohit, Managing Director of AWHO, is not required.

5.       In view of above, presence of Major General D.K. Purohit at this stage is not required before the District Forum. So, impugned order with regard to issuance of bailable warrants against him is set aside.”

10.     On 15.09.2015, Col. Surender Sharma appeared in person against the bailable warrants and stated that order under execution application has been complied with and in support of their contention they filed an affidavit of Col. Surender Sharma, Project Director, AWHO, Panchkula stating therein that the order dated 14.06.2010 passed by this Forum has been complied with. A letter dated 03.09.2015 has been issued in favour of the complainant whereby a Super Delux Apartment in AWHO project, Sector-114, Mohali has been allotted to him. The copy of the allotment letter has also been placed on record and cheque of Rs.2000/- has also been issued in favour of the complainant (but no cheque has been placed before this Forum). The Ops has also stated that the complainant cannot be allotted a flat either in Sector-20, or 27, Panchkula as there are no flats available in the said scheme.

11.     From the perusal of the allotment letter dated 03.09.2015, it reveals that the Ops have allotted a flat measuring 1680 sq. ft. (which is 40 sq. ft. more than the area of EA type flat for which the complainant had originally applied) at the original price of Rs.15.79 lacs. After giving him credit of Rs.50,250/- as interest, the complainant is liable to pay a sum of Rs.14,38,750/-.

12.     On the other hand, the complainant submitted that the Ops filed SLP No.29494/2015 before the Hon’ble Supreme Court against the order of the Hon’ble National Commission dated 22.05.2015 which was dismissed on 31.08.2015. The representative of the Ops met the complainant alongwith the abovesaid allotment letter. He further submitted that the Ops are again in violation of the judgment/order dated 24.06.2010 are trying to offer him an alternative apartment at Mohali which is not in accordance with the order of this Forum. He further stated that the flat at Sector 20, Panchkula is his rightful claim which has been denied to him by making money of allotments to junior registrants out of turn. Now, the Ops are trying to offer alternate flat at Mohali after dragging him in the litigation for these many years and after harming him mentally, emotionally and economically. He further submitted that if the Ops are sincere in their conduct either offering him a flat while current value of Rs.68.04 lacs for which his share as per the judgment order is Rs.12,87,000/-. They are ready to bear to burden approx. Rs.55 lacs. He further stated that the Ops can very easily procure a house at Sector-20, Panchkula and allot the same to him. He further prayed that the Ops be directed to strictly comply with the order of this Forum dated 14.06.2010.

13.     We have heard the complainant and learned counsel for the Ops and have carefully gone through the records and allotment letter dated 03.09.2015 placed before this Forum by the Ops.

14.     The facts as stated in the application regarding the passing of the order by this Forum in the complaint filed by the applicant and passing of the orders by the Hon’ble State Commission, Hon’ble National Commission and the Hon’ble Supreme Court in appeal/SLP were not disputed.

15.     As per the allotment letter dated 03.09.2015, the Ops have allotted a Super Delux Apartment (SDA) type dwelling unit (approx. 1680 sq. ft.) at AWHO project at Sector 114, Mohali. The current value of the said unit was Rs.68.04 lacs and probable date of the completion (PDC) is March, 2016. In the allotment letter, it has also been mentioned that DU applied by the complainant in sector-20, Panchkula on 06.06.2004 was Economy Apartment (EA) type dwelling unit approx. 1640 sq. ft. and the final cost of the same was Rs.15.79 lacs. The present allotment is at the same price. Till date, the complainant has paid a sum of Rs.90,000/- at the time of registration and interest of Rs.50,250/- on his registration amount as accrued since then. The balance amount is Rs.14,38,750/- (Rs.15,79,000/- - Rs.1,40,250/-) which may be paid in lump sum within 30 days from the date of allotment letter or in 3 equal installments of Rs.4,79,583/- each schedule of payment in installments is given as under:-

                   Sr. No.        Installment No.     Amount                 Due on

                   (a)               1^st Installment       Rs.4,79,583/-        04.10.2015

                   (b)               2^nd Installment      Rs.4,79,583/-        04.12.2015

                   (c)               3^rd Installment       Rs.4,79,584/-        04.02.2016

16.     As regard, the contention of the complainant that his lien was retained against any vacancy arising in Sector 20/27, Panchkula after 14.06.2010. The Ops have allotted 183 DUs of DA and 126 DUs of SDA at Sectro-27, Panchkula after July, 2012 and the possession of that unit was given after July, 2013 but the Ops did not bother to allot a DU at Sector 27 as per complainants’ seniority and lien. But the complainant has failed to place on record any allotment letter issued by the Ops in Sector 20 or 27 junior to the complainant.

17.     Thus, the Ops have already allotted the DU to the complainant vide allotment letter dated 03.09.2015 in Sector 114, Mohali as stated above. The order under execution stands fully satisfied and the application filed by the complainant is disposed off accordingly with the observation that the Ops shall retain the lien of the complainant in Sector 20 and 27. The Ops shall also hand over the cheque of Rs.2,000/- which has been stated to be issued in favour of the complainant but did not place on record before this Forum or handed over the same to the complainant.

18.     A copy of this order be sent to the parties free of costs and file be consigned to record room after due compliance.

 

 

Announced           (S.P.Attri)            (Anita Kapoor)             (Dharam Pal)

21.09.2015           Member               Member                           President