Complainant by filing this complaint has submitted that complainant a force of Indian Army as brochure intended to purchase a flat at a reasonable price and after observing the advertisement in the newspaper of Anandabazar Patrika on March 2010 from West Bengal Housing Board for allotment of a newly constructed ready flats in the area Prantik (Thakurpukur Phase-I), intended to purchase such a MIG IB Type Flat and thereafter complainant intended to purchase the flat. So purchase of a prospectus along with terms and conditions with booklet at a cost of Rs. 200/-. Thereafter he went to the spot where the construction was in progress and after that he purchased a demand draft of Rs. 1 lac being No.899758 dated 05.04.2010 from State Bank of India Kandi Branch along with application from for purchase of the said flat along with all document from through SBI APC Road, Kolkata – 9 and received an acknowledgement bearing No. 094 of March 2010.
Subsequently complainant received a letter bearing No. 1955/HB dated 27.05.2010 from West Bengal Housing Board for draw a lottery on 08.06.2010 and again received a letter no. 2697/HB dated 09.07.2010 for allotment of Flat type IB, No. 06/14 for full payment. On receipt of allotment letter complainant visited the said Prantik Phase-I IB Type Flat No. 06/14 and on inspection they observed that it is completely old one and building was of the year 1996 and allotment was started initially in the year 1998. But in the meantime for long years the building was kept abandoned and for which the entire flat was found damaged, plaster of walls were completely damaged, iron rods used to the building covered with rust coming outside of the wall and sunset of the building are totally damaged and broken.
When complainant settled his mind not to purchase such type of flat because same are going to be sold after repairing of the same, but that fact was not disclosed in the advertisement what was the status of the flat and it would be old and repaired flat which would be allotted to the complainant and other customers. So, complainant applied for refund of the application money of Rs. 1,00,000/- with interest vide their letter dated 04.09.2010.
On 10.11.2010 complainant received a letter from Assistant Housing Commissioner –I for along with document on 29.11.2010 vide their letter No. 45679/HB dated 02.11.2010 and after expiry of four months complainant received a cheque of Rs. 90,000/- from WEBHB on the bank of Maharastra bearing No.599078 dated 24.12.2010. On 15.11.2011 complainant lodged a complaint along with evidence to the Director of CA&FBP, 8B, Neile Sengupta Sarani, Kolkata-87 against WBHB and on 04.12.2011 complainant received a letter from CA&FBP for settlement of the instant dispute. But on 19.01.2012 they received a letter from CA&FBP for mediation and on 25.01.2012 complainant appeared at the mediation but op was absent. Thereafter on 18.12.2013 complainant received a letter and reported that matter but failed. So complainant may move before the Consumer Forum.
Considering the unfair practice on the part of the op and also their misleading advertisement and further for harassing the complainant, complainant has prayed for refund of balance amount of Rs. 10,000/- and compensation for harassing in such a manner and for giving such misleading advertisement and selling such old one in place of new flat and for other relief.
On the other hand notice of the complaint was duly served upon the op Assistant Housing Commissioner-I on 29.09.2014 which is evident from the internet Indian Post result. but most peculiar factor is that op being a Government organization having their responsible officers did not attend this Forum to contest this case and they have their every scope to challenge the complainant’s present allegation but they are afraid to challenge the allegation and not even appeared before this Forum to submit their any sort of submission against the allegation and for which ultimately giving such times the case is fixed for exparte hearing.
In the above situation we have no other alternative but to dispose of this matter in exparte form finally.
Decision with reasons
Relying upon the complaint including the document as filed by the complainant and also considering the unchallenged testimony of the complainant including the material documents, it can safely be said that complainant is a force of Indian Army intended to purchase a small flat as he was running for purchasing for such a flat as he has no such capacity to purchase high priced flat and subsequently when he was searching of a flat at Kolkata, an advertisement was made by the West Bengal Housing Board for selling new flat at Thakurpukur Phase-I, Prantik and that advertisement was no doubt published in the Anandabazar Patrika in the month of March 2010.
Thereafter complainant no doubt purchased a prospectus along with terms and conditions of booklet for a sum of Rs. 200/- from SBI and after that as per terms and conditions he deposited Rs. 1,00,000/- along with application form for purchase of MIG IB Type Flat and same are all admitted fact but when damaged flat was deteted complainant prayed for refund of the amount and that was also allowed by the op and out of deposited amount only Rs. 90,000/- was refunded to the complainant by the op on 24.12.2010.
The fact is that complainant’s allegation is that the op in the advertisement did not note that damaged and old flat shall be sold after repairing and fact remains in the advertisement, there was no declaration on behalf of op the Government concern that it shall be sold after repairing.
Another fact is that when op did not refund the entire amount so complainant lodged a complaint to the CA&FBP at Neile Sengupta Sarani, Kolkata-87 and op was asked to appear but op did not appear. Thereafter CA&FBP reported the complainant that mediation failed and complainant may file complaint before this Forum and that letter was issued by CA&FBP, Kolkata Eastern Suburban Region, 2, Brabaurne Road, 8th Floor, Kolkata-700001 and copy to the op vide their letter dated 14.12.2014 and finding no other alternative complainant filed this complaint before this Forum for redressal.
So, considering the entire fact, it is clear that the misleading advertisement was published by the op which is no doubt an unfair practice on the part of the West Bengal Housing Board. When op is dealing a business of selling flats the ops’ status is not better than the promoters and truth is that complainant relied upon the advertisement and deposited Rs. 1,00,000/- along with application form and it was also not reported by the op even before allotment to the complainant that new flat shall not be sold but damaged and old flat after repairing shall be sold so it is proved that op being a government concern has no moral capacity to appear before this Forum to challenge the allegation of the complainant and it is no doubt unfortunate because government of any state or central government always has been preaching for avoiding any corruption and not to sell any fake articles and not to publish any false declaration or misrepresentation in respect of any goods or sell of property. But truth is that the op a Government concern adopted an unfair practice by publishing advertisement by false misrepresentation that they are going to sell new flat. It is very unfortunate and such a concern should be imposed penalty for deceiving the consumers in such a manner. If the conduct of the government concern is not properly checked then invariably the private concern shall have to show their red eyes to the Forum and also to CA&FBP Deptt.
Considering the present fact it is clear that the matter ought to have been very seriously taken by CA&FBP when it is clearly proved that op being the government concern adopted unfair trade practice and deceived the complainant and in the particular case there was no fault on the part of the complainant then for what reasons op can deduct Rs. 10,000/- out of Rs. 1,00,000/- because the entire procedure as adopted by the op is illegal from very inception i.e. by publishing false advertisement op asked for depositing money and for submitting application form for allotment of flat and the procedure as adopted by the op is not only illegal but uncalled for and at the same time such type of government concern should be penalized at first for adopting such illegal path even after existence of C.P. Act and at the same time the existence of Consumer Affairs Department. Particularly in this case op did not appear before this Forum in view of the fact that they are well aware that they committed offence by deceiving and misleading the customer by adopting false, fabricated and misleading advertisement and practically complainant has been deceived by the op.
So, under any circumstances complainant did not violate any terms and conditions of the said application form but all sort of illegality was adopted by the op and for which the allegation as made by the complainant is proved beyond any manner of doubt. If there was necessity of the government concern to contest it was their duty to appear before this Forum and to submit their submission to contest the matter but none approached. But unfortunate fact is that op Assistant Commissioner-I received the notice of this case by registered post with A/D by Speed Post but did not appear. It simply proves that they are arrogant and dishonestly dealing such business which is proved and they have deceived the complainant which is also proved and for which they have avoided the Forum and against allegation as made by the complainant they have their no moral or legal courage to defy it and for which they are kept mum and did not file any objection or any document or any other matter to dislodge the claim of the complainant.
In view of the above fact and materials we are convinced that the complainant has proved the allegation against the op beyond any manner of doubt and op legally has no authority to deduct such amount which has been deposited by the complainant and invariably op shall have to return Rs. 10,000/- out of Rs. 1,00,000/- and also shall have to pay a compensation of Rs. 10,000/- for harassing the complainant and not to entertain his prayer and further for not appearing before the CA&FBP in mediation meeting when it is also a part of the government concern for deciding the dispute and also op shall have to pay cost of this case because complainant is a very honest force of the Indian Army who is compelled to loiter here and there for last 4 years for getting no redressal from anywhere and is compelled to file this complaint.
Accordingly, the complaint succeeds in exparte form.
Hence, it is
ORDERED
That the complaint be and the same is allowed exparte against the op with a cost of Rs. 10,000/-.
Ops is hereby directed to refund of Rs.10,000/- which has been illegally deduced by the op and also shall have to pay a sum of Rs.10,000/- as compensation for harassment the complainant in such a manner and also for publishing misleading advertisement to sell damaged flat by government concern.
Op shall have to pay the total amount i.e. Rs. 10,000/-(cost) + Rs.10,000/- (amount to be refunded) + Rs. 10,000/- as compensation i.e. total Rs. 30,000/- to the complainant within 15 days from the date of this order failing which penal interest at the rate Rs. 200/- shall be assessed till full satisfaction of the decree.
For publishing misleading advertisement and for selling damaged and old flat and for adopting such unfair trade practice by the op and to control the government concern from deceiving the customer in such a manner in future op is imposed penal damages of Rs. 10,000/- which shall be paid to this Forum within 15 days from the date of this order. Op shall have to comply the order within stipulated time failing which penal action shall be started against the op for which op shall be liable to pay further fine and penalty also.
