Justice Pritam Pal, President

1.          By this order we are disposing of a bunch of appeals (details given in annexure –B to this order) filed by different appellants against Chandigarh Housing Board (for short hereinafter referred to as CHB)   against  a common order dated 28.8.2009 passed by the  District Consumer Forum-II, U.T. Chandigarh. The main order has been delivered in complaint case NO.76 of 2009 “Ramesh Kumar Vs Chandigarh Housing Board”.  According to the impugned order of the District Forum dated 28.8.2009, the complaint cases involved common questions of facts and law  and that was the reason for deciding the bunch of  41complaint cases by a common order,  out of which these 39 appeals have arisen.

2.         Appeal case No.73 is directed against one separate order dated 1352 of 2009 passed by District Consumer Forum-I in complaint case No.1352 of 2009  which involves the same questions of facts and law as have been raised in the bunch of appeals referred to above, so, this appeal has been tagged with the bunch of appeals together.

3.     Appeal case No.262/2009 filed by  Narinder Singh Yadav for enhancement of compensation  is directed against the order dated 26.3.2009 passed by District Consumer Forum –I, U.T.Chandigarh whereby his complaint was accepted with costs of Rs.5000/-  and Chandigarh Housing Board was directed to handover the possession of the flat by 31.3.2009 and in case of delay, a  direction was issued to pay interest @ 10% p.a. on the amount of Rs.12,90,000/- with effect from 1.4.2009 till the date of possession.  Whereas Appeal case No.232/2009 has been filed by Chandigarh Housing Board for setting aside the impugned order dated 26.3.2009. Since, similar question of law and facts is also involved in these two appeals, so at the request of counsel for the parties these  appeals have also been taken up with other bunch of appeals.

4.          Since in all the above mentioned appeals, common questions of law and facts are involved, so,  we are  deciding all  these   appeals by this common judgment which is being rendered in appeal case No.532 of 2009 ‘ Ramesh Kumar  Vs Chandigarh Housing Board.  In order to appreciate the controversy involved before us in these appeals, the   facts  are culled out from   complaint  case No.76 of 2009.  

5.        The parties hereinafter shall be referred to as per their ranking before the District Consumer Forum.

6..          The facts as set out in the complaint are that    the complainant  was allotted  by OP two bed room flat on first floor under 96 Two Bed Room Flats Self Financing Housing Scheme, 2005, Sector 49, Chandigarh, on free hold basis vide acceptance cum-demand letter No.5944 dated 22.03.06, whose copy is Annexure C-1.  He deposited the entire sale consideration vide receipts, whose copies are Annexures C-2.  According to the complainant, the OP was supposed to complete the construction of the dwelling units/flats and   deliver its possession  within 18 months from the date of allotment letter i.e. by Sept, 2007. It was alleged that the allotment being under self-financing scheme, the flats were supposed to be constructed by using the funds deposited by the allottees and all the allottees under the said scheme had deposited the entire allotment consideration to OP , well within the timeframe stipulated in the acceptance-cum- demand letter but  the OP failed to complete the construction and deliver the possession within stipulated period of 18 months. 

7.         It was further alleged   that after construction of the flats/building structure, OP realized that no provision had been made for rain drainage pipe in the approved plan and as such  it  decided to break  the roofs of all the flats from two corners and inserted rain drainage pipe which weakened the strength of the roof and also started giving problems of leakage.  It was further alleged that   the bathroom toilet drainage bend pipe could be  seen protruding on the lower floor ceiling. Thereafter, the complainant and other allottees took up the matter with OP at different level and agitated over the apparent deficiency in service and negligence on the part of OP in inserting rain drainage pipe inside the flats by breaking the roofs, visible toilet drainage pipe on the ceiling of lower floor and the delay in construction of flats and consequent handing over the possession of flats to the allottees. Thereafter, OP decided to again break the roofs and take out the drainage pipe and fix it externally but did nothing to correct the toilet drainage bend pipe which continued to protrude on the ceiling of the lower floor. It was next alleged that as per the housing scheme, possession of the flats was to be given in September,2007  but OP delayed the possession for which it was liable to pay 30% interest p.a at the same rate which is charged from a  defaulter. Thus, alleging deficiency in service the complainant filed complaint before the District Forum seeking the following reliefs :

i)                    A sum of Rs.2,00,000/- as compensation for mental agony and harassment for not handing over the flat in time and in A-one condition construction. 

ii)                  A sum of Rs.50,000/- for keeping undue liaison with OP.

iii)                To refund a sum of Rs.5,00,000/- out of the price of the flat on account of loss/weakening of building/roof strength of the flats by repeated breaking of the roof and inserting the rain drainage pipe etc.

iv)                A sum of Rs.1,50,000/- towards rentals on account of failure of OP to hand over the flat in Sept.2007 or interest @ 30% on the price of flat to be calculated w.e.f. Oct. 2007 till the date of delivery of flat.

v)                  A sum of Rs.20,000/- as litigation expenses.

8.                     In the other complaints also, the facts are similar except that the number of the flats allotted, year of the scheme is different and the amounts and dates of payments are also different.  

9.            On the other hand, the case of OP before the District Forum was that the  scheme for allotment of 96 Two Bedroom four storied flats in Sector 49 was floated on 28.10.05 and was closed on 28.11.05. All the allotments under the scheme were subject to the provisions of Haryana Housing Board Act, 1971 as extended to the U.T. of Chandigarh, the provision of the Chandigarh Housing Board (Allotment, Management and Sale of Tenements Regulations, 1979 and the Capital of Punjab (Development and Regulations) Act, 1952 and the rules and regulations made thereunder and as amended from time to time.  According to OP, this condition was quoted in clause IX of the brochure. It was   pleaded that the present scheme was under Self Financing Housing Scheme and there was no such stipulation that the   possession of the flats/dwelling units was to be handed over within a period of 18 months from the date of allotment. However, the delay, if any was due to the reasons beyond the control of OP which was not intentional as the work of construction of dwelling units/flats was to be carried out in different phases. It was submitted that the approved sketch of the plan had been displayed in the brochure and  there was provision for rain drainage pipe in the original plan but the  said  plan had to be got amended in view of the representations made by various allottees and only thereafter drainage pipes were removed from inside and were placed externally as per the demand made by allottees. It was next pleaded  that the strength of the roofs had not diminished due to these alterations and the   toilet drainage pipe had been laid as per the specification of the drawings/approved plan.  It was pleaded that  the work of completion of the project was on full pace and the project would  be completed soon and the possession of the dwelling units would be handed over to the complainant and other allottees. It was submitted that the dwelling units had been offered with all terms and conditions by way of an advertisement and the same were accepted by the applicants/allttees  by signing the application and by giving an undertaking as agreed by both the parties and as such  they were not entitled to claim interest. A prayer was made for dismissal of the complaint.  Similar reply was filed by OP in other complaint cases.  

 10.        The learned District Consumer Forum after going through the  evidence  and hearing   learned counsel for the  parties came to the conclusion that  there was no deficiency in service or indulgence in any unfair trade practice on the part of OP    and dismissed the same. Other bunch of 41 complaints  was also dismissed through common order. However, complaint case No.1352/2009     was dismissed by the District Forum No.1 vide order dated 11.1.2010. The complaint case No.1160/2008 titled Narinder Singh Yadav Vs Chandigarh Housing Board was allowed by the District Forum-I vide its order dated 26.3.2009. Still dissatisfied, complainant Ramesh Kumar and other complainants mentioned in the list annexure “B” from serial No.1 to 39  have come up in their respective appeals . The other three appeals have been filed against the orders of District Forum-I, U.T.Chandigarh.     

11.          We have heard learned counsel for the parties   and gone through the file carefully.  The main point of arguments raised on behalf of the appellants/complainants is that the complainants/allottees of flats  had deposited the entire sale consideration, therefore, the possession of the flats was to be delivered by OP after 18 months from the date of allotment letter i.e by September,2007 but OP has failed to delivered the possession till date and as a result of which complainants are forced to retain the rented accommodation. Further there was no provision for the rain drainage pipe and the same was fixed inside the bedrooms but after the representation by the allottees the same was removed and fitted outside the bedrooms thereby weakening the strength of the roofs. The toilet drainage bend pipe is protruding on the lower floor ceiling.  It was argued that the appendix-25 of Standard schedule of contract period for building works-2002  according to which the construction was to be made within 55 months is not a mandatory document as it was only advisory in nature and has no connection with the present case of self financing scheme which is based on presumption that the money paid by the allottees in installments have been utilized before the payment of next installment and possession is handed over immediately after the payment of last installments. The amount paid towards dwelling units was lying with the OP beyond 18 months and it was enjoying the interest contrary to the basic principles of self financing scheme. To support their contentions, the learned counsel for complainants placed reliance upon an authority of Hon’ble National Commission in  Bhopal Vikas Pradhikaran Vs Kusum Kurchania,               2003(III)CPJ-106(NC)

 12.           These points of arguments have been repelled by the learned counsel for OP who stated that  the flats were constructed under the provisions of Haryana Housing Board Act, 1971 as extended to the U.T. of Chandigarh, the provision of the Chandigarh Housing Board (Allotment, Management and Sale of Tenements Regulations, 1979 and the Capital of Punjab (Development and Regulations) Act, 1952 and the rules and regulations made thereunder and as amended from time to time and this condition was quoted in clause IX of the brochure issued by OP which  impliedly meant   that the construction would take place as per the regulations as amended from time to time under the above said Acts and Regulations. Before the learned Forum, OP had placed on record the Appendix 25-Standard Schedule of Contract Periods for Building Works, 2002 and as per this schedule, the construction was to be completed within 55 months which  period  has not expired so far.  The learned counsel further submitted that    in the approved site plan, there was provision of rain water drainage pipe but on the basis of representations of allottees,  the site plan was got amended and the rain water drainage pipe was inserted outside the rooms of the complainants by breaking   the portion of the corner of the roofs in order to insert the said pipe outside the rooms of the complainants/allottees. However, by breaking of the corner of the roofs and insertion of the pipe, the strength of the roofs has not diminished and a  certificate to that effect was  given by the  Engineer of OP   Annexure R-3. However, No expert opinion has been placed on record by the complainants to prove that the strength of roofs has diminished because of insertion of the pipe through the corner of the roofs. Thus, the complainants have failed to prove that the strength of the roof has weakened because of the alterations made by OP.   The learned counsel for the OP  further argued that the site plan was made available to the complainants in the brochure  and they  had accepted the said site plan where toilet drainage bend pipe was  visible on the ceiling and only thereafter had applied for the purchase of the flats.  The learned counsel   further submitted that a similar controversy arose in respect of flats of Sector-38(west) under self-financing scheme and the claim of complainants regarding grant of interest on the amounts deposited as installments of allotment price of flats  was rejected upto National Commission in Pankaj Gupta,advocate Vs Chandigarh Housing Board etc.

13.       We have given our holistic view to the rival contentions raised on behalf of the parties and find that there was no express or implied contract between the parties that the possession of flats would be delivered to the complainants within 18 months from the date of allotment and complainants have not been able to plead or prove any express contract to this effect. The contention of the learned counsel for complainants that it was a self financing scheme  and as per schedule of payments the complainants had made whole consideration of the flats in question within 18 months of the allotment, so as such OP was under obligation to complete the construction and deliver the possession within 18 months from the date of allotment is not tenable for the reason that OP had not undertaken to complete the construction and deliver the possession to the complainant on the payment of last installment of consideration as per stipulated schedule.  No doubt in the  authority of Hon’ble National Commission Bhopal Vikas Pradhikaran Vs Kusum Kurchniay  (supra) cited on behalf of the complainants it has been held that where the houses are built under the self financing scheme, it is imperative upon OP to deliver the possession within a reasonable time i.e. three months from the payment of last installment. However, in the present case the complainant has not been able to prove that there was any express or implied undertaking by OP to complete the construction and deliver the possession of the house within 18 months of the date of allotment.  Whereas OP had  mentioned in the brochure that the flats were to be constructed under the provisions of    Haryana Housing Board Act, 1971 as extended to the U.T. of Chandigarh, the provision of the Chandigarh Housing Board (Allotment, Management and Sale of Tenements Regulations, 1979 and the Capital of Punjab (Development and Regulations) Act, 1952 and the rules and regulations made thereunder and as amended from time to time and this condition was quoted in clause IX of the brochure issued by OP.

14.       Similar question of granting interest/compensation in respect of flats of Chandigarh Housing Board Scheme of Sector-38(west) was agitated in various complaints and all the complaints were dismissed by the District Forum-II, U.T. Chandigarh vide order dated 16.10.2002 passed in complaint case NO.574 of 2001. Complainants then went in appeal before the State Commission, U.T .Chandigarh and all the appeals were dismissed vide order dated 31.3.2003.  Complainants then went in revision before the Hon’ble National Commission which was also dismissed.  In this regard order dated 11.1.2005 passed by the Hon’ble National Consumer Commission in Revision Petition No.2526 of 2003 titled  Mr. Suman Bhatia Vs Chandigarh Housing Board  now placed on file has also been perused, where it is evident  that in a similar facts and circumstances as involved in the present appeal before us the order passed by this Commission  in Pankaj Gupta Vs Chandigarh Housing Board  & others dismissing the appeals of the complainants was upheld by the Hon’ble National Commission.  Thus, latest order of the year of 2005  relating to the matter involving self financing scheme still holds good and the same being the latest is to be followed.  As indicated above, in Bhopal Vikas Pradhikaran Vs Smt.Kusum Kurchaniya (supra) decided in the year 2003  relied upon by complainants  there was unreasonable delay of 5 to 6 years in handing over the possession whereas in the instant case complainants were expecting possession of flats in the year 2007 and it was delivered in the year 2009. Thus, the facts contained  therein  in   the ruling relied upon by the complainants                                                                         are quite at variance from the facts of case in hand. In this view of the matter, no benefit can be derived by the complainants from the observations made by their lordships in the aforesaid ruling.  Since, in the instant case similar questions of granting interest/compensation on the amounts of installments of price of flats  have been raised, so we are not inclined to go in further details and hold that complainants are not entitled to any relief on that count.

15.       Further, on the representations made by allottees the rain water drainage pipe was inserted outside the rooms of flats.   No expert opinion has been placed on record to prove that the strength  of roofs has diminished  because of insertion of the pipe through the corner of the roofs. It is also not proved on record that the toilet  drainage bend pipe  has not  been laid as per the specification of the drawings/approval plan. However, rain water drainage pipe was altered on the representations made by allottees and  according to OP  it is not feasible to remove the toilet drainage bend pipe from inside  but OP is providing false ceiling as agreed between the parties  to cover the said toilet drainage bend pipe and it would not be visible.   

16.       In view of the above discussion, we are of the opinion that the impugned order dated 28.8.2009 passed by the District Forum is well reasoned and justified in the given circumstances and does not call for any interference. Accordingly we find no merit in the appeal and the same is hereby dismissed, leaving the parties to bear their own costs. Similarly    appeals bearing No.532/2009 to 570/2009 and appeal  NO.73/2010 are also dismissed. While appeal bearing NO.231/2009  filed by Chandigarh Housing Board is accepted and  cross appeal filed by the complainant   Narinder Singh Yadav bearing No.262/2009 for enhancement of compensation is dismissed and consequently his complaint case   No.1160/2008 is also dismissed.

             Certified copies of this order be communicated to the parties, free of charge. The file be consigned to records.