District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No.303/2020.
Date of Institution: 14.09.2020.
Date of Order: 08.06.2022.
Girdhari Lal s/o Shri Shiv Sahay R/o H.No. 5476, Rajiv Nagar, Tehsil-Palwal, District-Palwal(HR) Pin No. 121102.
…….Complainant……..
Versus
1. Housing Board Haryana, (through its Chairman) c-15, Awas Bhawan, Sector-6, Panchkula, Haryana – 134109.
2. The state of Haryana (through its Chief Secretary) R/o 4th floor, Haryana Civil secretariat, sEctor-1, Chandigarh.
…Opposite parties……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
PRESENT: Ms. Rachna Chhillar , counsel for the complainant.
Sh. Rajiv Rana, counsel for opposite parties.
ORDER:
The facts in brief of the complaint are that opposite party No.1 invited applications for registration for allotment of Type-A & B, Multi Storeyed flats for serving/Ex-Defence and Para-Millitary personnel of Haryana upto the rank of JCOs & equivalent and their widows and orphans on Hire Purchase Basis at the following stations:
- Faridabad (ii) Gurgaon, (iii) Mahendergarh, (iv) Jhajjar, (v) Panchkula, (vi) Pinjore, (vii) Palwal (viii)Rewari, (ix) Sampla, (x) Rohtak, (xi) Bawanikhera.
The houses/flats/apartments in Faridabad, Sector-65 which were included in the category of Type-A was having super area of 720 Sq. ft. having total consideration value of Rs.20,40,000/- while the flats/apartments/houses which were included in the category of Type-B were having super area of 600 sq. ft. having total consideration value of Rs.17,00,000/-. The present consumer dispute was regarding the flats/apartments/house booked in Sector-75 which was latter converted into Sector-65 by the opposite parties without citing any reasons of doing so. The complainant registered for these applications through registration NO. 421/FBD65/T-A/HGB after paying registration fee for an amount of Rs.2,04,000/- in terms of allotment letter 10% amount was to be paid with the applications. Opposite party No.1 sold these applications through various nationalized banks and opposite party No.1 left an option to pay the registration amount through any of these mentioned banks and he applicant who choose to pay through these banks was to bear interest @ 15% p.a. the complainant registered to the application for registration through Haryana Gramin Bank and later on cleared the dues of Haryana Gramin Bank bearing a heavy amount of rate of interest. Opposite party No.1 through lucky draw held on 30.12.2014, allotted flat/apartment at Faridabad 2,62,75 CONV. INTO Sector-65 and acknowledged the complainant vide application dated 03.03.2015 and demanded 15% amount to be paid to the opposite party No.1. The complainant booked Type-A apartment having total sale consideration of Rs.20,40,000/- p[aid 15% amount f the total sale consideration, as demanded by opposite party No.1, an amount of Rs.3,76,000/- vide demand draft dated 25.03.2015. It was pertinent to mention that the sector where the complainant had booked his apartment was now converted into Sector-65 without any reasons. The complainant herein did not want an apartment in this converted sector but in fear of forfeiture of earnest money that was an amount of Rs.2,14,000/- the complainant had not other options to deposit the 15% amount as demanded by the opposite party. After making the payments as and when asked by the opposite party No.1, the complainant visited at the site of the allotted apartment but till this time there was not even the construction material had been placed by the opposite parties. There was no construction started after getting the requisite payment form the complainant in the year 2014.
The handing over the possession clause of the allotment letter was “The allottee shall be entitled to the delivery of possession of the flat only after he/she has completed all the formalities and paid all dues and furnished/executed all the documents as required/prescribed. The flat will be handed over on “as is where is basis” and the board will not entertain any claim for additions or alterations or any complaints, whatsoever regarding the conditions of flats, price of flats, its design, the quality of material used, workmanship etc.” The complainant performed all the formalities as and when required by the opposite parties while it was the opposite parties who failed to perform the obligations on their part. The opposite party cannot complete the construction as per the allotment letter in one day or in or year which was not even started by the opposite party. In the catena of judgement propounded by the Hon’ble Supreme Court, the builder can not ask buyers to wait for possession for uncertain time. The complainant form 2016 to 2020, enquired of the starting of construction of the flats in issue and opposite party No.1 responded not to the query of the complainant. The aforesaid act of opposite parties amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite parties to:
a) refund the amount of Rs.5,80,000/- paid by the complainant towards the total sale consideration of the apartment as per the allotment letter.
b) grant interest @ 20% p.a. from the respective dates when the complainant made payment of the instalments to opposite party No.1 till the realization of the decretal amount.
c) pay a sum of Rs.5,00,000/- as damages in faovur of the complainant for adopting unfair trade practice and deficiency in service, playing fraud and cheating on the complainant alongwith interest @ 20% per annum from the filing of the present complaint till realization.
d) pay Rs.5,00,000/- as compensation for causing mental agony and harassment .
e) pay Rs. 1,00,000/- as litigation expenses .
f) pay a sum of Rs.5,00,000/- in favour of the complainant, towards the loss of opportunity that had been suffered by the complainant as in this opportunity the complainant could have purchased a suitable house for himself.
2. Opposite parties Nos.1 & 2 put in appearance through counsel and filed written statement wherein Opposite parties Nos.1 & 2 refuted claim of the complainant and submitted that in fact the answering opposite party was allotted the land measuring 7.5 acre vide Estate Officer, HSVP, Faridabad memo NO. 12641-43 dated 19.06.2014, Sector-65, Faridabad for the construction of multi-storyed flats for defence personnel. It was submitted that accordingly the possession of the land was handed over by the Estate Officer, HSVP, Faridabad memo No. 1169 dated 24.06.2014 and at the time of possession there was a Gas Godown building on the said land, which was pointed out to the HSVP authorities to which they replied that the Gas Godown should be dismantled and removed and the site should be free from all encumbrances. On 11.07.2014 Godown was demolished by HSVP and 80% of the malba was also removed from the site. It was also assured by the Junior Engineer HSVP that the rest of the malba should be removed from the site within two days, which was not removed afterwards. It was further submitted that the owner of the Bharat Gas godown went to the Hon’ble High Court against the demolition of Gas Godown by the HSVP through (CWP No.10037 of 2014. The Hon’ble High curt on 14.07.2014 granted the stay to maintain the status quo by both the parties. The Hon’ble Court issued an interim order dated 07.10.2015 giving liberty to the complainant to file representation before the appropriates authority within two months while maintain the status quo between the parties. The matter was still subjudiced and there was no further progress in the said case. It was further submitted that the office of Executive Engineer, HSVP, Faridabad had been in regular touch with HSVP for solving the matter. The Executive Engineer, HBH, Faridabad vide office letter NO. 5347 dated 05.12.2016 had asked Estate Officer, HSVP, Faridabad for an early settlement of the case. It was further submitted that the Executive Engineer, HBH, Faridabad had again requested to Administrator HSVP, Faridabad vide office letter No. 1752 dated 18.04.2017 to give the revised possession of group housing land measuring 7.66 acre in Sector-65, Faridabad after division of land in 2 pockets i.e. GH-1 & GH-2, and leaving the disputed/stayed land approx 1000 sq. yards encroached by M/s. Bharat Gas Godown. It was further submitted that ATP Housing Board Haryana, Panchkula vide office letter No. 2355 dated 17.04.2017 addressed to the Executive Engineer, HBH, Faridabad had intimated that the competent authority of Housing Board had accorded the approval to give the consent regarding revised possession of clear undisputed land in 2 pockets. It was further submitted that Administrator, HSVP, Faridabad vide office letter O. 3480 dated 12.05.2017 addressed to the Chief Administrated HSVP, Panchkula, sent Zoning Plans of two pockets of GH set as GH site No.1 to GH site NO.2 alongwith the proceeding of Zonal committee meeting for final decision form competent authority. From 12.05.2017 till now the case for approval of revised zoning plan was still lying with the Chief Administrator, HSVP, Panchkula. Despite issuing several reminders from the Executive Engineer, HBH, Faridabad and CtP, HBH Panchkula to Administrator HSVP Faridabad and Chief Administrator HSVP Panchkula for approving the revised zoning plan of the sites of GH-1 to GH-2, Sector-65, Faridabad. But HSVP department had still neither approved the revised zoning plan nor it had got stayed vacated from the Hon’ble High Court. So this office was completely helpless to start the construction work until the above formalities were completed by HSVP. It was submitted that the answering opposite party duly informed the complainant regarding the convert of site from Sector-2, 62, 75 to Sector-65, Faridabad vide letter No. 5737 dated 03.03.2015. Opposite parties Nos.1 & 2 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. The parties led evidence in support of their respective versions.
4. We have heard learned counsel for the parties and have gone through the record on the file.
5. In this case the complaint was filed by the complainant against opposite parties –Housing Board Haryana & Ors. with the prayer to : a) refund the amount of Rs.5,80,000/- paid by the complainant towards the total sale consideration of the apartment as per the allotment letter. b)grant interest @ 20% p.a. from the respective dates when the complainant made payment of the instalments to opposite party No.1 till the realization of the decretal amount. c)pay a sum of Rs.5,00,000/- as damages in faovur of the complainant for adopting unfair trade practice and deficiency in service, playing fraud and cheating on the complainant alongwith interest @ 20% per annum from the filing of the present complaint till realization. d) pay Rs.5,00,000/- as compensation for causing mental agony and harassment . e) pay Rs. 1,00,000/- as litigation expenses . f)pay a sum of Rs.5,00,000/- in favour of the complainant, towards the loss of opportunity that had been suffered by the complainant as in this opportunity the complainant could have purchased a suitable house for himself.
To establish his case the complainant has led in his evidence Ex.CW1/A – affidavit of Shri Girdhari Lal,, Ex.CW1/A – Form of Housing Board Haryana in which the period of Registration 17.02.2014 to 15.05.2014has been mentioned , Ex.CW1/2 - letter dated 3.3.2015, Ex.CW1/3 – photocopy of demand draft of Rs.3,76,000/-.
On the other hand counsel for the opposite parties strongly agitated and opposed. As per the evidence of the opposite parties, Ex. RW1/A – affidavit of Shri R.A.Gautam, Estate Manager, Housing Board, Haryana, Faridabad,, Ex.R-1 - Form of Housing Board Haryana in which the period of Registration 17.02.2014 to 15.05.2014 has been mentioned, Ex.R-2 – order dated 07.10.2015 passed by Hon’ble High Court of Punjab and Haryana, Ex. R-3 - letter dated 6.6.2018, Ex.E-4 – letter dated 12.5.2017 regarding approval of construction of flats for defence person.
6. In this case, the complainant registered for these applications through registration No. 421/FBD65/T-A/HGB after paying registration fee for an amount of Rs.2,04,000/- in terms of allotment letter 10% amount was to be paid with the applications. As per Ex.CW1/2 that opposite party No.1 through lucky draw held on 30.12.2014, allotted flat/apartment at Faridabad 2,62,75 CONV. INTO Sector-65 and acknowledged the complainant vide application dated 03.03.2015 and demanded 15% amount to be paid to the opposite party No.1. As per Ex.CW1/3 that the complainant booked Type-A apartment having total sale consideration of Rs.20,40,000/- paid 15% amount of the total sale consideration, as demanded by opposite party No.1, an amount of Rs.3,76,000/- vide demand draft dated 25.03.2015. The complaint wrote letter to opposite party No.1 but the opposite party No.1 intentionally failed to reply the letter. As per Ex.CW1/2 , The handing over the possession clause of the allotment letter was “The allottee shall be entitled to the delivery of possession of the flat only after he/she has completed all the formalities and paid all dues and furnished/executed all the documents as required/prescribed. The flat will be handed over on “as is where is basis” and the board will not entertain any claim for additions or alterations or any complaints, whatsoever regarding the conditions of flats, price of flats, its design, the quality of material used, workmanship etc.” Opposite party can not complete the construction as per the allotment letter in one day or in one year which is not even started by the opposite party.
7. After going through the evidence led by the parties, the Commission is of the opinion that as per Housing Board Policy, the deposit of unsuccessful applicants in the draw of lots will be refunded in full and will pay interest @ 5.5% p.a. for delay in draw beyond six months.
8. While taking a cue from the refund policy, the opposite parties are directed to pay to the complainant, jointly & severally, Rs.5,80,000/- alongwith interest @ 5.5.% p.a. from the date the last deposit was made . Opposite parties are at liberty to deduct the money from the deposited money as per refund policy of the Housing Board i.e. 10% of the registration amount deposited shall be forfeited by the Board... There are no orders as to other costs. The complaint is allowed to the aforementioned extent only. Compliance of this order be made within 30 days from the date of receipt of copy of order. Copy of this order be given to the parties free of costs and file be consigned to the record room.
Announced on: 08.06.2022 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
