Haryana

Panchkula

CC/132/2015

SUREKHA SETIA. - Complainant(s)

Versus

HARYANA STATE AGRICULTURE MARKETING BOARD & anrother - Opp.Party(s)

PANKAJ CHANDGOTHIA.

13 Jan 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.                                                                      

Consumer Complaint No	:	132 of 2015
Date of Institution	:	23.07.2015
Date of Decision	:	13.01.2016

                                                                                          

Mrs.Surekha Setia w/o Sh.Krishan Veer Setia # 225, GH 1 Sector 5 MDC, Panchkula.

 

                                                                                        ….Complainant

Versus

1.       Haryana State Agricultural Marketing Board, Mandi Bhawan, C-6, Sector 6 Panchkula through its Chief Administrator. 

2.       Market Committee, Sector 20, Panchkula through its Secretary.                                                                       

                                                                                      ….Opposite Parties

 

COMPLAINT UNDER SECTION 12 OF THE CONSUMER

PROTECTION ACT, 1986.

 

 

Before:                 Mr.Dharam Pal, President.

Mrs.Anita Kapoor, Member.

                             Mr.S.P.Attri, Member.

For the Parties:     Mr.Pankaj Chandgothia, Adv., for the complainant. 

                             Mr.Ranvir Sood, Adv., for the Ops.

 

ORDER

(Dharam Pal, President)

 

1.                          The complaint has been filed by the complainant with the averments that the OPs launched a scheme for the allotment of shops/floor on free hold basis in the air conditioned, four stories Agro Mall with two tier basement parking in sector-20, Panchkula for various kind of Agro based products, food products and other allied products relating to Agriculture & Horticulture. The complainant applied for a shop by depositing Rs.3,75,400/-. Thereafter the OPs issued a letter dated 19.11.2008 whereby the complainant was asked to deposit 15 % more qua the shop. Vide receipt dated 18.12.2008 the complainant deposited R.4,24,800/-. The Ops allotted shop No.54 to the complainant vide allotment letter dated 18.05.2009. It is further averred that the Ops had floated the scheme without getting the site plan approved from HUDA and due to this lapse construction had been delayed and not completed till date and the complainant wrote a letter dated 31.03.2010 to the Ops regarding this.  Due to delay, the Ops rescheduled the payment of installments vide letter dated 15.03.2013 and the first installment was due on 15.11.2011 but when there was no progress in construction or possession was made then the complainant again wrote a letter dated 25.03.2013 for rescheduling the installment. The complainant also wrote another letter dated 01.12.2014 to the Ops. The shop was bought by the complainant for self-employment/ livelihood but lack of construction/ development   at the proposed Agro Mall she is facing mental and physical harassment. Thereafter the complainant got served a legal notice dated 11.03.2015 upon the Ops calling upon them to allot and allocate the original corner shop No.54 and to reschedule the payment of installment from the date of offer of possession or in the alternative to refund the deposited amount but to no effect. It has been further averred that as per the information taken under RTI Act it came to her knowledge that the site plan was approved on 30.09.2011 and the scheme was floated in 2008 which is unfair trade practice and deficiency in service on the part of Ops. The scheduled time for completion of work was upto 28.03.2013 i.e. within 18 months of approval but physical possession of the shop has not been delivered despite lapsing of period of about 6 years. In the brochure there were only 51 shops shown on the ground floor but under RTI information it has been disclosed that 91 shops have been sold on the ground floor. The act and conduct of the Ops clearly amounts to deficiency in service.  In evidence the complainant has tendered affidavit and documents Annexure CA, Annexure C1 to Annexure C10.

2.                          The Ops appeared and filed joint written statement wherein several preliminary objections such as estoppal, cause of action, maintainability and concealment of material facts from this Forum etc. have been taken.  It has been submitted that the allotment of shops/cabins and all matters connected with it shall be governed by the provisions contained in HSAMB (Sale of immovable property) Rules 2000/ PAPM Act, 1961 or regulations framed by the board from time to time. All disputes with regard to allotment should have been referred to the Sole Arbitration of the Chief Administrator and the decision of the arbitrator will be final and binding on the concerned parties.  The construction of Agro Mall was allotted to M/s Singla Construction Company on 10.04.2008 but keeping in view the progress of M/s Singla Construction Company the Ops had engaged M/s Design and Development Forum as consultant for this project but at one stage they stopped providing the complete drawings as per HUDA/National Building Codes norms and ultimately the contract with them was terminated.  In the meeting of Ops conducted on 08.04.2010 it was decided that New consultant be engaged after following the proper procedure; Zoning plan be approved from HUDA; work of construction company be finalized and fresh tenders be called after preparation of the detailed drawing and detailed project. Thereafter M/s Inner Value, Chandigarh was appointed as new consultant and contract was executed on 11.10.2010. Zoning plan was approved by the HUDA on 20.07.2010 and revised plan was approved on dated 30.09.2011 and after this the work was allotted to M/s S.G.Constructions on 29.03.2012 and the work is likely to be completed in September, 30, 2015. The grievance of the complainant regarding handing over of possession is likely to be redressed very soon. The payment of installments, as provided in the allotment letter has no co-relation with the construction/ completion of Agro Mall.  As per the terms and conditions of the allotment letter dated 18.05.2009 the allotment was liable to be cancelled on non-payment of installments.  The complainant was bound to pay the installment as per the prescribed schedule though she was entitled for due concession if offer of possession is not given at the time of due date of any installment as provided in Clause 4 of the allotment letter. If an allottees/complainant fails to pay the installment at prescribed time, with or without interest as the case may be, he is liable to pay interest and penal interest as per Clause 5 of the allotment letter. As per the allotment letter, she was to pay six half yearly installments which were due from 15.11.2009 but the complainant has paid only two installments.  The Board of Directors, HSAMB after considering the grievances of the allottees have granted relief such as That payment on installment be  re-scheduled with effect from 15.11.2011 to 15.05.2014; that if any allottees had made excess payment, the same shall be adjusted in the next installments; that if the allottees had made the entire payment then simple interest equal to bank rate of Reserve Bank of India (R&R) shall be given to the allottees on his amount which was paid before due date of installments.  The Ops have already taken the notice of delay in construction of the Agro Mall and have extended the just and equitable relief to the allottees. Other pleas made in the complaint were controverted and prayer for dismissal of the complaint has been made. In evidence the Ops have tendered affidavit Annexure RA.

3.                          We have heard the learned counsel for the parties and have also perused the record carefully and minutely.

4.                          Learned counsel for the complainant has argued that shop No.54 was allotted to the complainant and the she has deposited Rs.8,00,200/- with the Ops. It has been further argued that as per the allotment letter, the possession of the shops was to be delivered within short span but the physical possession of the shop has not been delivered even after lapsing of about 6 years.  Learned counsel for the complainant has further argued that as per the Ops the work had been allotted to M/s S.G. Constructions on 29.03.2012 and the same would be completed within a period of 12 months but a period of two and a half year had elapsed but no progress have been made.

5.                          On the other hand learned counsel for the Ops has argued that as per para no.7 of the allotment letter “The possession of the shop/office space shall be offered to you after construction of Agro Mall”. The construction work is under process & as and when the construction is completed, the physical possession would be delivered to the complainant. It is submitted that as per the allotment letter, the physical possession would be handed over only after full construction of the mall and if a person fails to observe or comply with any term and condition of the allotment letter, the constructed shop would be resumed by the Market Committee and his deposited amount should be forfeited. It is submitted that the possession of the shop would also be given only after the pending installments are paid by the complainant as per norms of the allotment letter.

6.                          The arguments advanced by the learned counsel for the Ops are not sustainable because the Ops have failed to produce any document on the case file to show that the status of the site and they have even not given any specific date on which the possession of the shop would be delivered. The work of construction was allotted to M/s S.G.Construction on 29.03.2012 and the same was likely to be completed in September, 30, 2015 but till date possession has not been delivered to the complainant. It is strange that the draw of lots was held on 07.11.2008 and almost seven years have passed but till today the complainant has not been given physical possession of the shop/office Space No.54 in Agro Mall NVM, Sector 20 Panchkula. From the act and conduct of the Ops one thing is very much clear that they have taken the matter in very casual manner without taking care of the loss of the complainant. Sh.Ajay Singh, Secretary, Executive Officer, Market Committee in his affidavit Annexure RA has stated  the revised plan was approved on 30.09.2011 and the work was allotted to M/s S.G. constructions on 29.03.2012 and the same was likely to be completed within short span of period and very soon the possession would also be granted to the allottees. He had further stated that the grievances of the complainant is likely to be redressed very soon.  The Ops are a government institution and such like act and conduct is quite depreciable and is not expected from them because being a service provider the Ops are obligated to facilitate the utilization and enjoyment of the plots as intended by the allottees. It is very well established on the case file that inaction on the part of the Ops in not providing the requisite facilities  after passing of almost seven years clearly amounts to deficiency in service as the complainant was prevented from carrying out the business resulting into financial loss to him. From the above it is clear that they started the construction according to their own sweet will and utilize the money received from the purchaser for the other purposes. The Ops have even not placed on file any document to show the status of the site and they have even not given any specific date to the complainant on which the possession would be delivered. The complainant had purchased the shop in question under the impression that the possession of the same would be delivered very soon. It is clear case of unfair trade practice. We are, therefore, left with no option but to hold that the Ops have been highly unreasonable in not handing over the possession of the shop to the complainant within a reasonable period of time. It is settled principle of law that he who seeks equity must do equity with others but in the present matter the Ops have not acted as per law rather violated the provisions of CP Act.  Though the Ops have taken a plea that the work was allottee to M/s S.G. Construction on 29.03.2012 but this plea nowhere makes a hole to exonerate them from the liability for which they had charged money from the complainant in lieu of the shop in question. Moreover, the complainant had nothing to do with the M/s S.G.Construction because it was internal matter of the Ops with the said M/s S.G.Construction. The terms and conditions of the allotment letter do not justify the delay in completion of the construction on the aforesaid grounds and therefore, the opposite parties were duty bound to complete the construction and to handover the possession to the complainant. This is not the case of the opposite parties that the construction could not be completed due to any restriction from any court/authority or due to non availability of building material. It appears that even today the construction is nowhere near completion, the complainant is entirely justified in seeking refund of the amount which they had paid to the opposite party because the terms and conditions in the allotment letter have been drafted in a manner having potential to mislead the prospective buyer and not confirming any firm date of handing over the possession of the shop amounts to deceptive practice and falls within the meaning of unfair trade practice as defined under the CP Act. The Ops should have given firm date of handing over possession at the time of taking of 25 % of the amount itself but by not indicating the true picture with regard to the construction status to the complainant the Ops induced them to part with his hard earned money, which also amounts to unfair trade practice.

7.                          For the reasons recorded above, we find merit in the complaint and the same is hereby allowed.  The Ops are further directed as under:-

(i)      To make the payment of Rs.8,00,200/- deposited by the complainant alongwith interest @ 9 % from the date of deposit of the amount.

(ii)     To make payment of an amount of Rs.50,000/- to the complainants as compensation for harassment, mental agony, unfair trade practice and deficiency in service.

(iii)    To make the payment of Rs.10,000/- for litigation expenses.

This order shall be complied with by the ops within one month from the date of receipt of the certified copy, thereafter, the Ops shall pay the amount at serial No.1 above with the interest @ 12 % per annum form the date of depositing of the amount by the complainants till realization besides complying with the directions at serial No.2 and 3 above. A copy of this order be supplied to both the parties free of costs.  File be consigned to records after due compliance.

 

ANNOUNCED

13.01.2016          S.P.ATTRI            ANITA KAPOOR      DHARAM PAL

                            MEMBER            MEMBER                  PRESIDENT

 

 

 

 

Note: Each and every page of this order has been duly signed by me.

 

 

 

                                 

                                                         DHARAM PAL

                                                          PRESIDENT