DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

                                        Consumer Complaint No. 81 of 2014

                                        Date of institution:         03.02.2014

                                              02.07.2015

                                        Date of Decision:            09.11.2017

Major Gian Chand (Retd.), # 84 B Lakshya Home Mundi Kharar, Post Office, Jantpur Via- Kharar, District Mohali (Punjab).

    ……..Complainant

                                        Versus

1.     Om Parkash son of Daulat Ram, Director Lakshya Housing and Builders Pvt. Ltd., resident of 38, Sector 19-A, Chandigarh.

2.     Municipal Council, Kharar.

………. Opposite Parties

Complaint under Section 12  of 

Consumer Protection Act, 1986.

Quorum

Shri Ajit Pal Singh Rajput, President

Mrs. Natasha Chopra, Member

Present:    Shri APS Ahluwalia, counsel for the complainant. Shri Munish Goel, counsel for OP No.1.

                OP No.2 already given up. 

ORDER

By Ajit Pal Singh Rajput, President

                The present complaint was earlier decided exparte against OP No.1 by this Forum vide order dated 04.07.2014.  OP No.1 preferred an appeal against the order of this Forum before the Hon’ble State Commission. The Hon’ble State Commission vide order dated 18.05.2015 accepted the appeal and set aside the order of this Forum with a direction to give an opportunity to OP No.1 to file written statement and then decide the complaint on merits in accordance with law.  The parties were directed to appear before this Forum on 02.07.2015.

2.             Complainant Major Gian Chand (Retd.) has filed the present complaint against the Opposite Parties (hereinafter referred to as the OPs) under Section 12 of the Consumer Protection Act.  The brief facts of the complaint are as under:

3.             The complainant purchased House No.84 B at Lakshya Home, Mundi Kharar from OP No.1 in the form of structure for a sum of Rs.8.00 lacs. Amount of Rs.6.00 lacs was paid through cheque dated 04.03.2010 and Rs.2.00 lac was paid in cash. OP No.1 sold the aforesaid house to the complainant on the basis of Special Power of Attorney Ex.C-2. The complainant has averred that as per general power of attorney, OP No.1 was to provide electricity, water and sewerage system in the house sold to the complainant.  Except for poor sewerage system, other facilities have not been provided by OP No.1 to the complainant. The road in front of the house of the complainant remains full of slush and mud during rainy season.  The surrounding area has also not been developed.  The complainant has been occupying the house for the last three years and he requested OP No.1 several times to provide the basic amenities but OP No.1 failed to provide the same.  The complainant had to take temporary water connection from the adjoining Guru Nanak Enclave. OP No.1 also started construction work behind the house of the complainant and has made a pit and installed a tap from which water gets stagnated at that point which is in close proximity to the house of the complainant. OP No.1 mentioned in the registry that the flat falls under the jurisdiction of M.C. Kharar  and has been approved by Punjab Town Planning Scheme but as per the information received through RTI, OP No.1 has neither handed over the colony to MC Kharar nor has deposited necessary fee in municipal council and the flats does not exist in the record of M.C. Kharar.  Further as para 7 of the reply Ex.C-3 it is the duty of the builder or developer to provide amenities of water supply, electricity and pucca mettled roads in the concerned colony. The complainant is paying Rs.500/- per month for the existing temporary water arrangement against Rs.30/- per month being charged by MC Kharar. The complainant has paid property tax to MC Kharar for the flat vide receipt No.26.  The generator installed by the MC Kharar is  in close proximity of residents of the colony which is causing noise and air pollution and is in violation of Section 21 of the Air (Prevention & Control of Pollution) Act, 1981.  Hence the complainant has sought direction to OP No.1  to provide him the water supply through MC Kharar; pucca road in front of his house and to pay him Rs.90,000/- as compensation for mental harassment.

4.             The OP No.1 filed written statement on 05.08.2015 in which it was pleaded in the preliminary objections that the complaint is false and frivolous; complainant does not fall under the definition of consumer; that the complainant has not impleaded Shami Nayyar, Director of Lakshya Housing and Builders Pvt. Ltd. with whom he had got his property registered; that answering OP has no privity of contract with Om Parkash; the complaint involves disputed question of facts and law which cannot be decided in summary proceedings; the complainant has not availed any goods or services from the OP as such no consumer dispute arises between the complainant and the answering OP. The complainant has admitted in Para No.2 of his complaint that he purchased the house in the form of structure which means that Lakshya Housing and Builders Pvt. Ltd. has provided raw structure to the complainant. The complainant has not provided any contract/terms of contract under which Lakshya Housing and Builders Pvt. Ltd. was to provide electricity, water and sewerage connection.  The Lakshya Housing and Builders Pvt. Ltd. has already laid down lines for electricity, water and sewerage in the whole society where the complainant had purchased the property. The complainant had taken possession of the structure without any protest. The complainant had to get the electricity connection from PSPCL, water supply from tubewell connection laid down within society and sewerage connection was already installed and connected. The complainant is not paying any monthly maintenance charges from last so many years and using water and water sewerage connections free of costs. The complainant has taken electricity connection from PSPCL which proves the  complainant is falsely alleging that he has not been provided electricity connection.  The complainant along with other residents has been duly provided water through tubewell connection by Lakshya Housing and Builders Pvt. Ltd. Around 5 years back the residents of the area formed society under the name ‘Guru Granth Sahib Sewa Society’ which controls the sewerage and tubewell connection which provide water to whole of the society.  The OP No.1 has denied that the complainant is paying Rs.500/- to the Guru Nanak Enclave for water. The complainant is getting water free of costs from last so many years from the tubewell connection installed inside the society.  The present property was purchased by the complainant alongwith his son Rajnish Dogra. However, the complainant has not taken any permission from his son to file complaint in this Forum.  On merits, the OP No.1 has denied the averments of the complaint and sought dismissal of the complaint against it.

5.             Evidence of the complainant consists of his affidavit Ex.CW-1/1; affidavit of Nirmala Kumari Ex.CW-1/2; affidavit of Sat Pal Singh Ex.C-13 and copies of documents Exs.C-1 to C-12.  In rebuttal, counsel for OP No.1 tendered in evidence affidavit of Om Parkash its Director Ex.OP-1/1; affidavit of H.S. Sabharwal,  President Ex.OP-1/5; and documents Ex.OP-1/2 to Ex.OP-1/4 and electricity consumption bill Mark-A to Mark-C.

6.             At the outset learned counsel for OP No.1 has argued that the complainant is not consumer of the OP No.1 as he has taken over the possession of the property vide sale deed dated 05.03.2010 Ex.C-1. The complainant had not raised any objection at the time of taking possession of the property on 05.03.2010. In support of his contention, learned counse has relied upon the decision of Hon’ble National Commission in Harpal Arya Vs. Housing Board Haryana, Revision Petition No.3338 of 2007 decided on 04.01.2016. The complainant during the course of arguments could not produce any law contrary to the decision of Hon’ble National Commission. 

7.              We find force in the contention of learned counsel for OP No.1.  Once the complainant has taken over the possession on 05.03.2010 vide sale deed Ex.C-1 without raising any protest for non provision of the facilities, he cannot be termed as ‘consumer’ of the OP.  The Hon’ble National Commission in case titled as Harpal Arya Vs. Housing Board Haryana, (supra) in Para No.15  has held as under:

“Thus, from the aforesaid documents, it is manifestly clear that petitioner had executed the Hire Purchase Tenancy Agreement with the respondent and in pursuance thereof, he had also taken possession of house on 27.10.2004. Further as per possession certificate, it is clear, that petitioner had taken the possession, without any pre conditions. Now after getting the possession, it does not lie in the mouth of the petitioner to state that house is not in a habitable condition.  Once petitioner, had taken the possession with open eyes and without any pre-conditions, he cease to be a consumer. The consumer complaint was filed on 25.05.2005, that is, after about seven months of taking over the possession of the house. Therefore, on the face of it petitioner was not a ‘consumer’ at the time of filing of the complaint, since there was no privity of contract between the parties. Therefore, complaint is liable to be dismissed on this ground alone.”

                The facts of the present complaint are squarely covered by the aforesaid decision of the Hon’ble National Commission. Therefore, we are of the view that once the complainant has taken over the possession on 05.03.2010 without raising any objection, he ceases to be the consumer of the OP.

                Accordingly, in view of our above discussion and the case law titled as Harpal Arya Vs. Housing Board Haryana(Supra) the  present complaint along with the member sets is hereby returned with liberty to the complainant to approach the appropriate court of law for redressal of his grievance.

                The order was reserved. Now the order be communicated to the parties. The complaints could not be decided within the stipulated timeframe, due to heavy pendency of cases.  Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.

Pronounced

Dated: 09.11.2017

                                      (A.P.S.Rajput)
 President

(Mrs. Natasha Chopra)

Member