STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
First Appeal No. | : | 463 of 2013 |
Date of Institution | : | 25.10.2013 |
Date of Decision | : | 10/12/2013 |
M/s New Generation Real Estate (Pvt.) Ltd., through its Managing Director, C/o SCO No. 373-374, Sector 35-B, Chandigarh, through
The Managing Director of the Company
Er. R.M. Singla, Director and the
….Appellant/Opposite Party No.1
V e r s u s
1.Ikbal Krishan Kapoor s/o Late Sh.Pran Nath Kapoor, Allottee and resident of Flat No.423-F, New Generation Apartments, Zirakpur Ambala – Kalka Road, Near Railway Crossing, Dhakoli, Zirakpur – 140603.
2.Vivek Kapoor (Legal heir and son of complainant No.2 i.e. Veena Kapoor), r/o 12, Lord Sinha Road, Calcutta – 71.
3.Manisha (Legal heir and daughter of complainant No.2 i.e. Veena Kapoor) resident of House No.264, Sector 7, District Panchkula.
….Respondents No.1 to 3/complainants No.1 to 3
4.The Govt. of Punjab through :-
i. The Principal Secretary (Local Govt.….Respondent No.4/Opposite Party No.2
5.E.O./Nagar Council (earlier NAC/NP) – Zirakpur.
….Respondent No.5/Opposite Party No.3
Appeal under Section 15 of the Consumer Protection Act, 1986.
BEFORE:
Argued by:Sh. Dinesh Madra, Advocate for the appellant.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT
“For the reasons recorded above, the complaint filed by the complainants is partly allowed. OP No.1 is directed :-
i) To make payment of an amount of Rs.2,00,000/- as compensation on account of harassment and mental agony to the complainants within one month from the date of receipt of the copy of this order.
ii) OP No.1 shall get executed the sale deed/conveyance deed in favour of the complainants within two months from the date of receipt of the copy of the order, for which, the stamp registration and other incidental charges would be borne by the complainants. If the complainants refuse to get the sale deed executed and registered, they would be doing so at their own risk and responsibility.
iii) OP No.1 shall furnish the completion and occupation certificate of the apartment to the complainants within two months from the date of receipt of copy of this order.
iv) OP No.1 shall pay Rs.10,000/- as costs of litigation to the complainants.
This order shall be complied with by OP No.1 within the stipulated period, as directed above, failing which, OP No.1 would be liable to pay the double of the compensation amount along with interest @9% p.a. from the date of filing of the complaint till its realization, besides payment of litigation expenses of Rs.10,000/-.”
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9. . It was further stated that the complainants and their family members, faced terrible problems, due to non-operative lifts and total lack of sanitation, in the complex.
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24. With a view to appreciate the controversy, in its proper perspective, reference to Section 3 of the Act is required to be made, which reads as under ;
“3.Act not in derogation of any other law.—
The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”
25. which was, ultimately, not disposed of on merits, would not oust the Jurisdiction of the Consumer Fora, in view of the provisions of Section 3 of the Act. As stated above, since, Section 3 of the Act, is worded in widest terms, and leaves no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law, for the time being, in force, the complaint, out of the decision whereof, the instant appeal has arisen, was certainlymaintainable. Similar principle of law, was laid down, in Fair Air Engineers Pvt. Ltd. and another Vs N.K.Modi III (1996) CPJ 1 (SC) and C.C.I. Chambers Co-op. Housing Society Ltd. Vs Development Credit Bank Ltd. III (2003) CPJ 9 (SC).
26. not applicable. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The project, in question, was a Group Housing Project. Sub Section (2) of Section 1 of the Punjab Apartment and Property Regulation Act, 1995, clearly lays down that it shall extend to the whole of the State of Punjab. No exception was engrafted to Sub-Section (2) of Section (1) of the Punjab Apartment and Property Regulation Act, 1995. Section 2 of the aforesaid Act, defines advertisement, allottee, apartment, etc. etc. Section 2(y) of the said Act, defines promoter as the person, (a) who constructs or causes to be constructed building consisting of apartments, or, converts an existing building or a part thereof into apartments, for the purpose of selling all or some of the apartments to other persons, and includes his assigns; or, (b) who develops land into a colony, whether or not he also constructs structures on any of the plots, for the purpose of selling to other persons, all or some of the plots, whether open or with structures thereon; and (c) where the person who constructs or converts a building or develops a colony and the person who sells apartments or plot are different persons, the term includes both of them. Explanation (2) to Section 2(y) of the said Act defines, that a person who acts as described in Sub-Clause (c) of Clause (y) shall be deemed to be a promoter, even if, (i) he styles himself as a builder, colonizer, contractor, developer, estate promoter or by any other name; or (ii) he claims to be acting as the holder of a power of attorney, from the owner of the land, on which the building is constructed or colony is developed. Section 3 of the said Act, relates to the general liabilities of promoter. Section 4 of the said Act, relates to the issuing of advertisement or prospectus, by the promoter. Section 5 of the said Act, lays down
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28. owner(s) had started the construction, after taking approval of the building plans, as per the revised layout plan, duly adopted by Nagar Panchayat Zirakpur, therefore, it (Nagar Panchayat, Zirakpur) was advised not to interfere, in the construction activity, if the same was in conformity with the revised layout plan. Though, in the inquiry report dated 28.10.2005, the Principal Secretary to Government Punjab, Department of Local Govt., Chandigarh, observed that the construction under reference had been raised, as per the revised Town Planning Scheme layout plan, yet his report also revealed that for carrying out any amendment, in the sanctioned Town Planning Scheme, Government is the Competent Authority, for according final approval. Annexure R-4 letter dated 20.09.2002, at page 372 of the District Forum file, shows that the Executive Officer, Nagar Panchayat, Zirakpur requested the Director, Department of Local Bodies Punjab, Chandigarh, that the amended lay out plan of the Town Planning Scheme of New Generation Apartments, be forwarded to the Government for according sanction. The Nagar Panchayat, Zirakpur, was required to follow the legal procedure for carrying out the amendment, in Town Planning Scheme, because the same procedure, as was required to be followed at the time of framing of the scheme needed to be followed, while making amendment in the scheme. There is a letter dated 23.09.2005, at page 378 of the District Forum file, sent to the Executive Officer, Nagar Panchayat, Zirakpur inter-alia showing that the Government had directed the Nagar Panchayat, Zirakpur, to obtain the post-facto approval of amendment, in the Town Planning Scheme of New Generation Apartments, from the Government, after following due procedure. The Nagar Council Zirakpur received letter dated 14.03.2008 – Annexure R-3/13, at page 387 of the District Forum file, from Opposite Party No.1, making a request for ex-post-facto approval of the project, but without sending the old site plan and the site plan of construction raised at the spot.
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“14.(1) It is the responsibility of the promoter,-
(i) in the case of apartments, to obtain from the authority required to do so under any law completion and occupation certificates for the building and if a promoter, within a reasonable time, after the construction of the building, a reasonable time, after the construction of the building, does not apply for an occupation certificate from the aforesaid authority, the allottee of an apartment may apply for an occupation certificate from the said Authority; and
(ii) in the case of a colony, to obtain completion certificate from the Competent Authority to the effect that the development works have been completed in all respects as per terms and conditions of the licence granted to him under Section 5.
(2) The Authority referred to in Sub-Section (1) shall, after satisfying itself about the agreement of sale between the promoter and the allottee, and the compliance of the building regulations and all other formalities, issue an occupation certificate”
32. Had Opposite Party No.1 obtained the completion and occupation certificates, atleast copies thereof, would have been produced, on the record, by it. In the absence of the same, an adverse inference could be drawn, against Opposite Party No.1 that it had not obtained the same. Not only this, had the completion and occupation certificates been obtained by Opposite Party No.1, it would have certainly supplied the same, to the complainants, as they took possession of the apartment, as far as back on 28.02.2004. Violation of the mandatory provisions of Section 3(1) (j) and Section 14 of the Punjab Apartment and Property Regulation Act, 1995, by not obtaining the completion and occupation certificates, and handing over of the possession of apartment, in question, in the absence thereof, amounted to deficiency, in rendering service. The District Forum was also right, in holding so.
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35. then it shall be liable to pay double the compensation amount, alongwith interest @9% P.A., , from the date of filing the complaint, till realization. In our considered opinion, this direction given by the District Forum, was also not justified. As stated above, the Consumer Foras, are not meant to enrich the consumer(s) at the hands of the service providers. Since, the complainants have been in possession of the apartment, w.e.f. 28.02.2004, and living therein, with all the basic amenities/facilities, they were not required to be enriched by the District Forum. This direction of the District Forum, thus, deserves to be set aside.
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To pay a sum of Rs.1.50 lacs, as compensation, on account of mental agony, and physical harassment, caused to the complainants, as also deficiency, in rendering service, and indulgence, into unfair trade practice, instead of Rs.2 lacs, awarded by the District Forum, within two months, from the date of receipt of a certified copy of this order.
To obtain completion and occupation certificates, from the Competent Authority, within two months, from the date of receipt of a certified copy of this order.
To execute sale deed/conveyance deed, and get the same registered, in favour of the complainants, within two months, from the date of receipt of completion and occupation certificates, on payment of stamp duty, registration fee, and other incidental charges, by
To pay cost of litigation, to the tune of Rs.10,000/-, as awarded by the District Forum.
The direction of the District Forum, that in case of non compliance of the impugned order, within the stipulated period, fixed by it, Opposite Party No.1 would be liable to pay double the amount of compensation, alongwith interest, @9% P.A., from the date of filing the complaint, till realization, is set aside.
In case, the amount mentioned in Clause (i) of paragraph 37 above, is not paid, within two months, from the date of receipt of a certified copy of this order, then it shall carry interest @9% P.A. from the date of filing the complaint, till realization, besides payment of cost of litigation, to the tune of Rs.10,000/-, and compliance of other directions, indicated above.
Any other direction, given by the District Forum, which is contrary to, or in variance of this order, subject to the modification, aforesaid, shall stand set aside.
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Pronounced.
10/12/2013
Sd/-
[JUSTICE SHAM SUNDER (RETD.)]
PRESIDENT
Sd/-
(DEV RAJ)
MEMBER
Rg
