Chandigarh

StateCommission

A/333/2015

Chandigarh Housing Board - Complainant(s)

Versus

Jarnail Singh - Opp.Party(s)

Vishal Sodhi, Adv.

18 Jan 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

First Appeal No.	:	333 of 2015
Date of Institution	:	09.12.2015
Date of Decision	:	18.01.2016

 

Chandigarh Housing Board, through its Secretary, 8, Jan Marg, Sector-9, Chandigarh.

……Appellants/Opposite Parties

 

V e r s u s

Jarnail Singh son of Sh. Atma Singh, resident of House No.1117, Sector 20-B, Chandigarh.

              ....Respondent/Complainant

 

Appeal under Section 15 of the Consumer Protection Act, 1986.

 

BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                MR. DEV RAJ, MEMBER.

               

Argued by:Sh.Vishal Sodi, Advocate for the appellants.

                 Sh.Amit Kaith, Advocate for the respondent.

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

            This appeal is directed against an order dated 02.11.2015, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (in short the Forum only), vide which, it accepted a complaint, filed by the complainant (now respondent) and directed the Opposite Parties (now appellants) as under:-

“In the light of above observations, we are of the concerted view that the Opposite Parties are found deficient in giving proper service to the complainant and having indulged in unfair trade practice. Hence, the present complaint of the Complainant deserves to succeed against the Opposite Parties, and the same is allowed, qua them. The Opposite Parties are, jointly and severally, directed  to:-

 [a] To make payment of Rs.1,00,000/- to the complainant towards compensation for causing mental and physical harassment.

[b]  To make payment of Rs.20,000/- to the complainant as litigation expenses.

 The above said order be complied with by the Opposite Parties, within 30 days from the date of receipt of its certified copy, failing which the amount at Sr. No. [a] above shall carry interest @12% per annum from the date of filing of the present Complaint, till actual payment, besides payment of litigation costs.”

2.       As per facts, on record,  the appellants floated a scheme under the name and style of General Self Financing Housing Scheme-2008, Sector 63, Chandigarh, in which they were to construct flats, for general public. The respondent moved an application for allotment of a category ‘A’ flat. Draw of lots was held on 07.04.2010. The respondent was a successful allottee. Vide letter dated 21.10.2011, offer with regard to flat, was made to the respondent by the appellants, which was accepted and demand was raised for payment of amount towards price of the said unit. It is on record, that the respondent had made payment towards price of the flat, in the following manner

 

 

Sr.No.	Date	Amount paid
1.	30.04.2008	395745.00
2.	15.11.2011	593618.00
3.	09.04.2012	1110391.00
4.	20.10.2012	1000000.00
5.	20.10.2012	110391.00
6.	16.04.2013	1110391.00
		Rs.4320536.00

3.       It is also on record that to get a flat allotted, necessary formalities in the shape of signing numerous documents were completed by the respondent well before 16.04.2013. By making reference to Clause XIII of the Allotment Letter Annexure C-8, it was stated that possession should have been delivered by the appellants by 16.04.2013, to the respondent, when last payment was deposited towards price of the flat. It was not done so, which forced him to file a consumer complaint bearing no.183 of 2015, before the Forum, which was allowed on 02.11.2015, in the manner, referred to above.
4.       Upon notice, reply was filed by the appellants. In their reply, while admitting factual matrix of the case, it was stated that time was not essence of the contract.  Construction of the flats was at final stage, and the respondent will get possession of his unit, very soon. The remaining averments were denied, being wrong.
5.       In the rejoinder filed by the respondent, he reiterated all the averments contained in the complaint, and repudiated those, contained in written version of the appellants.
6.       The parties led evidence, in support of their case.
7.       After hearing Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to above.
8.       Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.
9.       We have heard Counsel for the parties, and, have gone through the evidence, and record of the case, carefully. 
10.       It is an admitted fact that during pendency of complaint before the Forum, possession of the flat was delivered to the respondent, on 12.10.2015. He did not raise any objection, when getting possession of a  developed flat bearing no.2045-C (3BR), Block No.B-19, Sector 63, Chandigarh. The Forum noted that in the Acceptance-cum-Demand Letter Annexure C-2, no definite date to hand over possession has been given by the appellants. It was further stated that since last payment in respect of the flat was made on 16.04.2013, as such, possession should have been delivered to the respondent, within a reasonable time. However, it was delayed and handed over on 12.10.2015. By noting as above, compensation and litigation expenses were awarded to the respondent, vide the order impugned.
11.       Admittedly, the respondent was an applicant of General Self Financing Housing Scheme, floated by the appellants. It is also an admitted fact that scheme was floated in the year 2008 and draw of lots was conducted in the year April 2010. No assured date of delivery of possession of the flat was given. The Forum simply by taking date of last payment made i.e. 16.04.2013, has opined that possession was not handed over within reasonable time, but was handed over only on 12.10.2015, during pendency of the consumer complaint, as such, thre was deficiency in providing service. .
12.       After looking into documents on record and also contents of an affidavit dated 06.01.2016 (said affidavit was filed in terms of order dated 11.12.2015 passed by this Commission) filed by Sh.Sunil Kumar, Chief Engineer of Chandigarh Housing Board, we are of the considered opinion that there was no inordinate delay in handing over possession of flat to the respondent. It was on account of various reasons, beyond the control of the appellants. Scheme was floated in the year 2008. The respondent paid an amount of Rs.3,95,745/- at that time. Draw of lots was conducted for allotment of flats, in the year 2010, whereafter, in five installments, amount was paid by the respondent, to the appellants, towards price of the flat. In the above said affidavit, it is stated that construction qua 120 flats was started on 01.09.2011. However, possession of entire project land could not be given, as such, possession of site for construction of 80 flats out of above 120 flats, was only given to the contractor, for construction. Qua second lot of 216 flats, construction was started on 11.11.2011. However, at site, possession of land to raise only 120 flats could be given. Qua construction of remaining flats, possession of land could not be given, on account of boundary dispute between the appellants and the Greater Mohali Area Development Authority (GMADA), Mohali. It is necessary to note here that the project is situated adjoining boundary line, between U.T., Chandigarh and Punjab, Mohali. Due to above difficulty, lay out plan of the project land was revised on 14.06.2012. Location of original flats was changed and the land at site was made available to the contractor, in the month of June 2012. Construction of 214 3BR flats was completed in the month of April 2013. Construction qua other flats was completed in December 2013. The appellants then faced difficulty regarding disposal of sewerage and storm water discharge, in the existing location of project land, on account of topography of land, where the project, in question, was situated. The matter was taken up with the GMADA, Mohali, and sewerage connection was given to 984 no. of flats by it, on 31.03.2014, on payment of charges. Qua some of the flats, proposal was vetted on 15.09.2014. Completion of above work took some-time. To award separate contracts of water supply, water boosting system, sewerage system & storm water disposal system, electricity distribution system, street lighting system, roads etc, it also took some time to complete the project. Shortage of sand and bazri (crushed stones) was also one of the reasons for delay, in construction of flats. Process of handing over possession was started on 11.09.2015. Possession of flat was delivered to the respondent on 29.09.2015.
13.       Sequence of the events mentioned above, clearly indicates that the appellants were not deficient in providing service to the respondent. All out efforts were being made to construct the flats, and deliver possession within reasonable time. It is not an allegation of the respondent that on account of delay, he was made to pay higher price of the unit.  He was given possession of the flat, at the same rate, which was advertised in the year 2008. As per common knowledge, price of the flat, in the meantime has escalated and delay had gone to the benefit of respondent, and as such, he has suffered no loss.

            A similar question fell for determination before the Hon'ble Supreme Court in a case titled as Bangalore Development Authority Vs. Syndicate Bank, 2007 AIR (SC) 2198. In that case, like the present one, the dispute was qua handing over possession of constructed flat, in the Self Financing Housing Scheme. There was delay in raising construction. By noting that no assured date of possession was given in the Agreement/allotment letter, the Hon'ble Supreme Court of India observed as under:-

“We find that both parties - BDA as also the Respondent proceeded on the basis that time was not the essence of the contract. In a contract involving construction, time is not the essence of the contract unless specified. Even when the respondent wrote the letters dated 29.11.1989, 17.1.1990, 9.7.1993 and 11.1.1994, it did not make time for performance the essence of contract, nor fix any reasonable time for performance. The Respondent did not also choose to terminate the contract, obviously in view of the manifold increase in the value of the Houses. For the first time, by notice dated 11.7.1994, it purported to make the time the essence, but demanded delivery within an unreasonable period of one month and filed the complaint on 4.2.1995. Thus, it cannot be said that the Respondent made time the essence of contract, in a manner recognized in law. We also find that the development authority was constructing these houses under a self- financing scheme on 'No-Profit No-Loss basis' by using the instalments/amounts paid by the allottees. The houses were delivered in 1997 at a price agreed in 1986. By 1997, the value had gone up many times (more than 10 times according to BDA). The Respondent had the benefit of such rise in value. The respondent also failed to prove any negligence on the part of BDA. In this factual background, we find it difficult to hold that there was 'deficiency in service' on the part of BDA entitling the respondent for any compensation by way of interest or otherwise. Consequently, the respondent is not entitled to any compensation.”

14.       In the present case also, it could be safely said that time was not essence of the contract. Evidence on record clearly indicates that all attempts were made by the appellants, to complete the project, within reasonable time. It is so apparent from reading of the contents of the affidavit dated 06.01.2016, filed by Sh.Sunil Kumar, Chief Engineer of Chandigarh Housing Board (on the asking of this Commission). To the facts mentioned above, no contrary evidence has been produced on record, by the respondent.

            A similar housing scheme had been floated by a Development Authority namely Housefed, Punjab. The project was delayed on account of which, price of the units was increased and there was delay in handing over the possession. One of the allottees came to this Commission, claiming compensation, on account of above fact, as his main complaint was dismissed by the District Consumer Disputes Redressal Forum-II, U.T. Chandigarh. He filed First Appeal No.250 of 2015 titled as Satish Kumar Vs. Managing Director, Housefed, which was dismissed by this Commission on 05.10.2015, by observing as under:-

“Furthermore, it has rightly been held by the Forum that the appellant has failed to prove any deficiency in rendering service by the respondent. Noting terms and conditions of the allotment and specifically observing that no firm commitment was made to complete construction within a specific period, it was observed by the Forum as under:-

“The complainant, who was provided all the terms & conditions and was also aware about the basic features of the policy under which the said project was initiated and was to be completed.  As there was no specific date of completion promised by the Opposite Party, which they may have breached by offering him possession of his unit in Nov., 2014 instead of in the year 2012, as claimed by the complainant, no deficiency in service can be attributed against the Opposite Party towards breach of such a condition.  The complainant has nowhere challenged the final cost of the project amounting to Rs.32,50,000/-, though he claims that he is aggrieved due to vast escalation in price, which the Opposite Party while contesting the same have quoted a judgment titled as Gujarat Housing Board Vs. Dataina Atnrit Lal Phul Chand and Ors., III (1993) CPJ 351 (NC), wherein the Hon’ble National Commission, has categorically held that the question of pricing cannot be gone into by the Consumer Forums since the price of the flat is not fixed by any law and that even if any excess charge has been collected by way of price that will not constitute a ground for contending that there is a ‘deficiency’ in service on the part of the Opposite Party.  Therefore, the price of the flat, which was determined to the tune of Rs.32,50,000/- at the time of offering him the possession, cannot be made a subject matter of a consumer complaint. ”

We feel that the view taken by the Forum is perfectly justified. So far as increase in price of the unit(s) is concerned, it was made clear in the advertisement that the price of a unit was tentative and actual price of the same will be intimated when offer of possession thereof will be made. There is sufficient evidence, on record, to show that construction was delayed on account of various reasons like non-grant of No Objection Certificate by the Electricity Department; setting up of STP as per norms; non-availability of the material etc. etc., which was beyond the control of the respondent. It has also come on record that construction of the unit(s) was raised by the respondent to provide housing accommodation to those, who were not having shelter over their head. It was done on the basis of no-profit-no-loss basis. There is nothing on record to show that the above commitment was not fulfilled by the respondent and it has claimed the amount which will profit it. It was firmly stated by the respondent in the reply that in terms of the Policy of the State Government to construct affordable accommodation, the said project/ scheme was initiated”

15.       It was noted that in the said project, construction was delayed, on account of various reasons, beyond the control of Authorities concerned. It was further observed that no promise to provide possession of flat was given. In the present case also, position is the same. Scheme was floated in the year 2008. Draw of lots was conducted in the year 2010. Price of the unit was to be paid in installments. It was only that before taking possession of the unit, allottee was supposed to make payment of the entire amount. No  undertaking was given to deliver possession within a specific period.
16.       To controvert arguments raised by Counsel for the appellants, the respondent has placed reliance upon the judgment of Hon'ble National Commission titled as  Bhagat Singh and another Vs. Adharshila Towers Pvt. Ltd. and another, 2013 (4) CPJ 354. It may be stated here that, in that case, the builder/opposite parties had claimed escalation cost towards construction and it was on account of this reason, it was held that intentions of the opposite parties was to delay the construction, just with a view to charge escalation charges, from the buyers. Whereas, as stated above, in the present case, possession of the flat, in question, was delivered to him, on the same rates, prevailing in the year 2008. As such, the facts of Bhagat Singh and another's case (supra) being entirely different from the present case, no help can be drawn therefrom, by the respondent. In view of the facts mentioned above, we safely hold that there was no deficiency in providing service, by the appellants to the respondent. The Forum has passed the judgment, without analyzing the provisions of the scheme, as also the fact that no date to deliver possession of the flat was given, when offer to purchase  thereof, made by the appellants, was accepted by the respondent. The findings of the Forum, being perverse, deserve to be reversed.
17.       No other point, was urged, by Counsel for the parties.
18.       In view of the above discussion, it is held that the order passed by the Forum, being not based on the correct appreciation of evidence, and law, on the point, suffers from illegality and perversity, warranting the interference of this Commission.
19.       For the reasons recorded above, the appeal is accepted with no order as to costs. The order of the Forum is set aside. The consumer complaint is dismissed, with no order as to costs.
20.       Certified copies of this order, be sent to the parties, free of charge.
21.       The file be consigned to Record Room, after completion.

Pronounced

18.01.2016

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Rg