SMT. M. SREESHA, MEMBER

Succinctly put, the facts leading to the filing of the present Complaint are that the Complainant was allotted a residential plot bearing No.930, admeasuring 420 sq. mtr. in Sector 51, Gurgaon, Haryana (in short, the ‘Plot’) by the Opposite Parties (hereinafter referred to as the ‘Authority’), in the year 2004, vide Allotment letter dated 27-01-2004, pursuant to his Application No.16584, at a tentative price of Rs.18,48,000/-. The Allotment was subject to Condition No.10 of the Allotment letter in terms of which the tentative price of the Plot may vary to the extent that any enhancement in the cost of the land awarded by the Competent Authority under the Land Acquisition Act shall also be payable proportionately, as determined by the Authority, and that the additional price so determined shall be payable within thirty days of its demand. The complainant paid an amount of Rs.1,84,800/- i.e. 10% of the tentative price towards earnest money and further paid an amount of Rs.2,77,200/-, which was due within 30 days of the issue of the Allotment letter. The remaining amount of Rs.13,86,000/- was paid in six annual instalments of Rs.2,31,000/- from the year 2005 to 2010. Subsequently, vide letter dated 18-03-2010, the Authority raised demand for enhanced compensation being EC No.2714 for an amount of Rs.8,83,747/-. The same was paid by the Complainant in instalments as was permitted. It is submitted that, subsequently, the accounts of the allottees were computerised by the Authority, which was informed to the Complainant by the Authority vide its letter dated 09-02-2011. The payments made towards the above said enhancement compensation were shown in the Online Allottee Account Statement of the Complainant as Enhancement No.2714. It is further submitted that the Online Allottee Account Statement downloaded by the Complainant on 07-01-2012 showed that no amount was outstanding and EC No.2714 was shown as fully paid. Thereafter, the Authority issued another letter dated 16-02-2012 to the Complainant intimating him that further enhanced compensation of Rs.23,43,856/- was due and payable with respect to the Plot as the acquisition cost of land in the Sector 51, Gurgaon has been enhanced by the Court. Complainant duly paid the same in permissible instalments, which were also reflected in the Online Allottee Account Statement of the Complainant as Enhancement No.1228.

2.       The Complainant further submits that he downloaded the Online Account Statements on 12-04-2013, 24-02-2014 and 11-03-2015 which showed that no amount was outstanding towards the Complainant in respect of the Plot. In fact, the statement dated 24-02-2014 showed a credit balance of Rs.1,33,555/- because Complainant had prepaid the enhanced compensation. Since all the due payments were made, Complainant sought permission to start construction on the Plot. However, on 18-04-2015, when Complainant checked his Online Account, to his surprise, he found that an enhancement of Rs.16,73,129/- was being shown in his Account Statement, being EC No.42, which was due on 06-08-2011 and because this enhancement compensation was for the period prior to EC No.1228, the payments already made by the Complainant towards EC No.2714 and EC No.1228 were re-allocated to EC No.42. As per the Account Statement dated 18-04-2015, an amount of Rs.31,78,956/- was outstanding towards enhancement compensation together with interest. It is averred in the Complaint that Complainant never received any letter informing him of EC No.42 in the year 2011 nor was any such enhancement shown in his online account statements from 2011 till 2015. In fact, till March, 2015, the Account Statements showed that no dues were payable by the Complainant and both, EC No. 2714 and EC No.1228 were fully paid. It is further averred that the Complainant sent an email dated 03-07-2015 to the Authority in relation to EC No.42 and another email dated 14-07-2015, attaching both the Online Accounts Statements dated 11-03-2015 and 18-04-2015, raising the issue of the discrepancy that appeared to be an error in his account and sought that the matter be resolved. Since no response was received by the Complainant he sent reminder emails dated 19-07-2015 and 16-08-2015 seeking response on the discrepancy in his account, but to no avail. In fact, the Complainant received letter dated 20-08-2015 from the Authority that an amount of Rs.33,27,143/- was due and payable as enhanced compensation in respect of the Plot.

3.       Vexed, the Complainant served a legal notice upon the Authority on 15-12-2015 in respect of EC No.42 and sought resolution of the matter. The Authority responded to the said notice by their letter dated 21-01-2016 impressing upon that EC No.42 dated 06-07-2011 had been sent to the Complainant; however, as per the Complainant no proof of receipt of the said EC was provided nor any explanation was given to the fact that EC No.42 was never reflected in the Online Account Statement till April, 2015. Thereafter, the Online Account Statement dated 26-05-2016 of the Complainant showed an amount of Rs.36,87,230/- outstanding with respect to enhancement compensation.

4.       Feeling aggrieved, Complainant filed a Complaint before the Gurgaon District Consumer Disputes Redressal Forum (in short, the District Forum) being Complaint Case No.431 of 2016 on 04-07-2016. The same was, however, dismissed in default by order dated 19-8-2016 for non-appearance of the counsel for the Complainant. Thereafter, a fresh Complaint was filed by the Complainant before the District Forum on 28-10-2016 being Complaint Case No.680 of 2016 which was dismissed by the District Forum for want of pecuniary jurisdiction in view of the decision of the Hon’ble National Commission in Ambrish Kumar Shukla vs. Ferrous Infrastructure Private Ltd. decided on 7.10.2016, giving liberty to the Complainant to approach the Forum having competent jurisdiction and the period of limitation may be condoned.

5.       While so, the Online Account Statement of the Complainant dated 02-02-2017 showed that the EC No.1228 was reduced from Rs.23,43,856/- to Rs.1,30,998/- and also showed a new enhancement compensation being EC No.17723 comprising of seven instalments aggregating to Rs.16,73,129/- i.e. the same amount of EC No.42. It is averred that no letter or intimation was given to the Complainant in respect of EC No.17723 and it appears that instead of reflecting the fact that the original EC No.42 was being permitted to be paid in instalments from 28-09-2016 to 30-08-2019 as is clear from the statement dated 02-02-2017, the Authority has shown that these instalments were due in addition to Rs.16,73,129/- in respect of EC No.42. This position also continued in subsequent Online Statements downloaded on 29-05-2017 and 16-07-2017. Thereafter, the Authority issued a Speaking Order No.12/2017 dated 17-08-2017 in respect of the revised calculation of the additional price and reduced the enhanced compensation in respect of EC No.1228, the excess of which was to be refunded with interest @ 15% per annum. It is further averred that in recent Online Account Statements dated 16-12-2017 and 31-12-2017, EC No.42 is shown in an amount of Rs.16,73,129/- which was payable on 06-08-2011 and EC No.17723, comprising of seven instalments, is shown in an  amount of Rs.16,73,129/-. The total amount due to the Authority was shown as Rs.17,88,841/- in the statement dated 16-12-2017 which has been increased to Rs.17,97,753/- in the statement dated 31-12-2017. Though the Complainant sought to explain the above errors to the Authority and followed up in writing on several occasions, no satisfactory response was ever received from the Authority. The Complainant has not been able to construct his house on the Plot which was legitimately bought by him even after paying the entire sale consideration and further extension charges are being demanded by the Authority for failing to commence construction. The belated imposition of EC No.42 without notice to the Complainant, interest charged on alleged unpaid enhancements, imposition of EC No.17723, failure to pay interest on refund of overpayments towards EC No.1228 and imposition of extension charges preventing the Complainant from commencing construction for no fault are the alleged instances of deficiencies in service/unfair trade practices on the part of the Authority, aggrieved of which, the present Complaint has been filed praying following directions to the Authority:

(a) to refund/remove the extra charges of Rs.16,73,129/- towards enhancement compensation from the Complainant’s Account;

(b) to refund to the Complainant’s Account an amount of Rs.6,38,266/- which has been charged towards delay interest for enhancements till 31-12-2017 and further amounts charged towards delay interest for enhancements till the date of refund;

(c) to direct the Authority to pay to the Complainant an amount of Rs.12,34,474/- being the interest payable till 31-12-2017 on the excess amounts paid in respect of EC No.1228 and further interest from 01-01-2018 till the date of realisation;

(d) to direct the Authority to refund/remove the amount of Rs.79,380/- from the Complainant’s Account shown as extension charges and to restrain the Authority from imposing further extension charges;

(e) to direct the Authority to pay compensation of Rs.2,00,000/- for mental harassment and costs of Rs.50,000/-.

6.       The Authority was set ex parte vide order dated 24-04-2018 and their right to file the Written Version was closed. IA No.18505 of 2018 filed by the Authority seeking recall of the order dated 24-04-2018 was rejected on 13-12-2018. No steps were taken by the Authority to challenge this order.

7.       The Hon’ble Supreme Court in PUDA (Now GLADA) Vs. Vidya Chetal, (2019)9 SCC 83, has held as follows:

“22.          We may also refer to the case of Ghaziabad Development Authority (supra) wherein this Court, relying upon Lucknow Development Authority case (supra), held that the power of the Consumer forum extends to redressing any injustice rendered upon a consumer as well as over any mala fide, capricious or any oppressive act done by a statutory body. The relevant para of the judgment reads as under:

15 “6. ….Thus, the law is that the Consumer Protection Act has a wide reach and the Commission has jurisdiction even in cases of service rendered by statutory and public authorities. Such authorities become liable to compensate for misfeasance in public office i.e. an act which is oppressive or capricious or arbitrary or negligent provided loss or injury is suffered by a citizen.

… Where there has been capricious or arbitrary or negligent exercise or non­exercise of power by an officer of the authority, the Commission/Forum has a statutory obligation to award compensation. If the Commission/Forum is satisfied that a complainant is entitled to compensation for loss or injury or for harassment or mental agony or oppression, then after recording a finding it must direct the authority to pay compensation and then also direct recovery from those found responsible for such unpardonable behaviour.

(emphasis supplied)

23. Therefore, in line with the law laid down by us, we hold that the determination of the dispute concerning the validity of the imposition of a statutory due arising out of a “deficiency in service”, can be undertaken by the consumer fora as per the provisions of the Act. The decision of this Court in the case of Sunita (supra), wherein it was held that NCDRC has no jurisdiction to adjudicate the legitimacy of the aforementioned statutory dues, was rendered 16 without considering any of the previous judgments of this Court and the objects of the Act. Consequently, the law laid down in the aforesaid case does not hold good before the eyes of law, and is thereby overruled.”

8.       Therefore, this issue, though pertaining to statutory dues since it is levied in lieu of service provided, falls within the ambit of the Consumer Protection Act, 1986. We are of the considered view that total cost of the Plot with compensation sought for exceeds Rs.1,00,00,000/- and, therefore, this Commission has jurisdiction to entertain the Complaint.

9.       The Complainant filed his Evidence by way of Affidavit and marked copy of Allotment letter dated 27-01-2004 as Exhibit C-1/1, copy of enhancement letter dated 18-03-2010 as Exhibit C-1/2, copy of letter dated 09-02-2011 as Exhibit C-1/3, copy of Online Account Statement dated 01-07-2012 as Exhibit C-1/4, copy of enhancement letter dated 16-02-2012 along with typed copy as Exhibit C-1/5, copies of Online Allotee Account Statements dated 12-04-2013, 24-02-2014 and 11-03-2015 as Exhibit C-1/6, copy of Online Allottee Account Statement dated 18-04-2015 as Exhibit C-1/7, copies of emails dated 03-07-2015 and 14-07-2015 and acknowledgement receipt of hand delivered email as Exhibit C-1/8, copies of emails dated 19-07-2015 and 16-08-2015 as Exhibit C-1/9, copy of demand letter dated 20-08-2015 as Exhibit C-1/10, copy of Online Account Statement dated 18-10-2015 as Exhibit C-1/11, copies of legal notice dated 15-12-2015 with acknowledgement of receipt as Exhibit C-1/12, copy of response from the Authority dated 21-01-2016 as Exhibit C-1/13, copy of Online Account Statement dated 26-05-2016 as Exhibit C-1/14, copy of CC No.431 of 2016 filed before the District Forum as Exhibit C-1/15, copy of CC No.680 of 2016 filed before the District Forum as Exhibit C-1/16, original certified copy of order dated 05-06-2017 issued on 03-08-2017 as Exhibit C-1/17, copy of order dated 06-04-2015 of Hon’ble Punjab & Haryana High Court in CWP No.6284 of 2015 as Exhibit C-1/18, copy of Online Account Statement dated 02-02-2017 as Exhibit C-1/19, copies of Online Account Statements dated 29-05-2017 and 16-07-2017 as Exhibit C-1/20, copy of Speaking Order No.12/2017 dated 17-08-2017 as Exhibit C-1/21, copies of Online Account Statements dated 16-12-2017 and 31-12-2017 as Exhibit C-1/22 and copy of Online Account Statement dated 25-05-2018 as Exhibit C-1/23, on his behalf.

10.     Vide order dated 06-08-2019, taking into consideration the reliefs prayed for by the Complainant, in the interest of justice, the Bench has appointed Ms. Amrita Singh, Advocate to appear as Amicus Curiae to assist the Bench on the basis of evidence and material and averments made in the Complaint, for deciding the Complaint in accordance with law.

11.     Facts not in dispute are that the Complainant was allotted a residential Plot bearing No.930, admeasuring 420 sq. mtr. in Sector 51, Gurgaon, Haryana pursuant to his application No.16584. The Authority issued an Allotment letter dated 27-01-2004 for which the tentative price of the Plot was Rs.18,48,000/-. It is stated in the Allotment letter that the Complainant had paid Rs.1,84,800/- i.e. 10% of the total price towards the earnest money and that he should pay amount of Rs.2,77,200/- within 30 days of the Allotment letter and the balance in six annual instalments of Rs.2,31,000/- each. A perusal of Condition No.10 of the Allotment Letter shows that the price was tentative and any enhancement in the cost of land would be payable proportionately as and when determined by the Authority.

12.     The documents on record establish that the Complainant had paid the annual instalments from 2005 to 2010 and he was informed about the enhanced amount to be paid of Rs.8,83,747/- vide a letter dated 18-03-2010. Thereafter, on 09-02-2011, the Complainant was informed that the Authority had computerised all their accounts.

13.     The Learned Counsel appearing for the Complainant had filed IA No.11076 of 2018 to place on record Online Account Statement dated 25-05-2018. This Online Statement shows that the amount of Rs.19,44,337/- was due and payable to the Authority. It is the Complainant’s case that as per the Online Account Statement dated 07-01-2012, no amount was outstanding in respect of instalment payment. This statement also shows full payment of EC No.2714. Thereafter, vide letter dated 16-02-2012, the Complainant was informed that further enhanced compensation was due and payable and, accordingly, an amount of Rs.23,43,856/- was paid in instalments with interest. A perusal of the material on record shows that the payments are reflected in the Online Account Statement as Enhancement No.1228. The Statements of Account dated 12-04-2013, 24-02-2014 and 11-03-2015 evidence that no amount was outstanding in respect of said Plot. A perusal of the statement dated 24-02-2014 shows that the Complainant had paid the enhancement compensation and in fact an amount of Rs.1,33,555/- was shown as credit in his account.

14.     Learned Amicus Curiae submitted that there was delay in paying the instalments of the payment and the due date for EC No.2714 was 18-04-2010 and the payments were made belatedly and as per the Statement of Accounts, the extension charges are payable from two years from the date of offer of possession which in the instant case was offered in August, 2006 and, therefore, the Complainant ought to have completed the construction by August, 2008. It is seen from the record that the Complainant has been paying extension charges since the year 2009. The Learned Amicus Curiae also drew our attention to the reply given by the Authority to the legal notice dated 12/2015 in which it was stated that the demand was made way back in the year 2011 and, therefore, it cannot be stated to be a back dated demand.

15.     Learned Counsel for the Complainant submitted that on 18-04-2015, when the Online Account was checked, the Complainant found that the enhancement of Rs.16,73,129/- was being reflected in his Account Statement being EC No.42 for which the entire payment was paid by the Complainant four years prior on 06-08-2011. Since enhancement compensation was prior in time to EC No.1228, the payments made by the Complainant towards EC No.2714 and 1228 were re-allocated to EC No.42. The Account Statement showed an amount of Rs.31,78,956/- as outstanding. It is seen from the record that there was no letter or information to the Complainant in respect of EC No.42 in the year 2011 nor was any enhancement shown in the Online Account Statement for the subject Plot from the years 2011 to 2015.

16.     It is evident from the Online Statements that till March, 2015 the subject Plot did not show any dues payable to the Authority. The Enhancement Compensations Nos.2714 and 1228 were duly paid.

17.     The Learned Counsel appearing for the Complainant submitted that the Complainant had written emails on 19-07-2015 and 16-08-2015 but received no response. On 20-08-2015, the Complainant received a letter that an amount of Rs.33,27,143/- was due and payable vide a demand letter dated 20-08-2015. It was submitted by the Learned Counsel that when the Complainant downloaded the statement of 02-02-2017, it showed that EC No.1228 was reduced from Rs.23,43,856/- to Rs.1,30,998/- on account of various orders of the Hon’ble High Court of Punjab & Haryana.

18.     The Learned Counsel for the Complainant relied upon the copies of the Speaking Order No.12/2017 dated 17-08-2017 which is in respect of the refund calculation of the additional price in relation to Sector 51, Gurgaon, wherein the Authority had reduced the enhancement compensation in respect of the third rate of recovery i.e. EC No.1228. Even as on 31-12-2017, the Complainant’s Statement of Account showed EC No.42 for an amount of Rs.16,73,129/- payable as on 06-08-2011 and EC No.17723 totalling to the same amount. We find force in the contention of the Learned Counsel that the Authority has since compounded its error by introducing EC No.17723 without giving any notice and it can be seen from the record that total amount of EC No.17723 is the same as for EC No.42, hence, this amount has been charged twice. The record shows that no outstanding enhancement were payable by the Complainant prior to April, 2015. For all the aforenoted reasons together with the belated imposition of EC No.42 without notice to the Complainant, the interest charged on account of alleged unpaid enhancement, the imposition of EC No.17723 amounts to deficiency in service on behalf of the Authority.

19.     Therefore, this Complaint is allowed in part directing the Authority to refund to the Complainant the additional amount of Rs.16,73,129/- in respect of enhanced compensation; Rs.79,380/- towards extension charges; an amount of Rs.6,38,266/- that has been charged towards delayed period interest for enhancements until 31-12-2017; together with costs of  Rs.20,000/-. Keeping in view the facts of the case, we are not inclined to award other reliefs.

20.     Time for compliance, four weeks from the date of receipt of a copy of this order failing which the amount shall attract interest @6% per annum from the date of filing of the Complaint till the date of realisation.