DATE OF DISPOSAL: 09.10.2018.
Sri Karuna Kar Nayak, President.
The complainant Bhabani Prasada Padhy has filed this consumer complaint Under Section 12 of the Consumer Protection Act, 1986, alleging deficiency in service against the Opposite Parties ( in short the O.Ps) and for redressal of his grievance before this Forum.
2. Briefly stated, the case of the complainant is that he had deposited Rs.25,000/- on 22.1.2008 against BDA advertisement on “The Samaj” dated 29th December 2007 for demand survey for Vivek Vihar Stage II for HIG S (II) where it was advertised to provide 40’X60’ plot with built up area of 1462 sq.ft. at a cost of Rs.11,68,000.00. Subsequently as per Vivek Vihar Broucher and discussion with Berhampur Development Authority officials he had deposited additional amount of Rs.3,50,300.00 on dated 7th June 2008, which he had gained from short term capital gain. The complainant was assured by BDA officials to get a plot with house since he had deposited money from his short term capital gain under Income Tax law. As per letter No.3320/BDA dated 18.8.2008 and subsequent lottery drawn on 5th September 2008 he was assured to be given a HIG S (II) with his allocation serial No. 31. Inspite of several visits since he was not given any allocation of plot with house or reply, he had applied under RTI to your office to know status of his deposited fund, under letter No.3142/BDA dated 4.12.2012 for which O.P. has replied under letter No.3416/BDA Berhampur dated 28.12.2012 without any firm commitments to his questions. In the said letter no firm date or month or year for completion of work was mentioned. Further complainant’s letter dated 25th May 2013 the reply letter No.681/BDA Berhampur dated 12.07.2013 it is mentioned his deposited money has been executed in construction of house and not kept in bank. The complainant has been shocked and surprised to receive letter from O.P. where he has been asked to show his interest to participate in auction of HIG Plot at Vivek Vihar Phase II Ambapua within ten days from date of issue of letter with base price of plot of 30’X60’is INR 19,80,000/-. The complainant does not understand how BDA (with approval from Govt. in H& UD Dept) comes to this conclusion, of auction with base rate of Rs.19.80.000/- for land of 30’X60’? It is also mentioned in letter 1463(63) inspite of repeated tenders BDA could not construct houses hence they have fixed plot rate which was fixed by valuation committee and approved by Govt. in H & UD Department. The complainant had applied in January 2008 it was advertised to provide HIG S(II) at Rs.11,68,000/- which was further increased to Rs. 11,95,300/- a plot (40’X60’) with house (built up area 1462 sq ft) in your Jun 2008 brochure. Due to dereliction of duty and failure and neglect to allocate plot with house, the complainant has not only suffered huge financial losses but also mental torture, harassment, family disturbances and lost in faith. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.Ps to allot a plot of land 40’X60’ with constructed house amounting Rs.11,95,000/- as per cost of year 2008, compensation and cost of Rs.8,00,000/- in the best interest of justice.
3. Upon notice the O.Ps filed version through his advocate. It is stated the allegations made in the complaint of the complainant are all not true and correct, even false to the knowledge of the complainant himself. Therefore, the complainant is required strict proof for the same. Out of two categories available in HIG S-II-, outright and installment purchase, the complainant opted for installment category of HIG S-II. In fact, there were 42 numbers of HIG S-II and 9 numbers under HIG-S-III houses, supposed to be constructed as proposes through brochure supplied. Out of 42 number under HIG S-II, 24 numbers were kept for outright purchase and 16 were available for installment purchase and rest 2 numbers as discretion of Chairman. As per the procedure lottery was conducted on 05.09.2008 by 11 A.M. in the office of the Vice Chairman, BDA Berhampur for 32 houses for HIG S-II and S-III (24+9) amongst the 36 applicants and the information of such lottery was rightly informed to the complainant on 30.08.2008. Unfortunately, the project was windup through resolution by circulation dated 18.04.2013 in the Authority meeting and decision was taken unanimously to make an alternative procedure to facilitate the aspirants through sites and service scheme. The proposal was rightly approved by the Government on 15.10.2013. By showing sympathy towards the complainant as he was in the priority list, the unsuccessful complainant was informed through letter No. 1463(63) darted 13.12.2013 regarding allotment of HIG plots but unfortunately without giving any response to the letter he stated writing applications at different corners and filed this complaint. At this juncture it is pertinent to mention here that, the O.Ps floated a public offer through an open advertisement in the local odiya daily, for construction of Stage-II, “Vivek vihar Housing Project” near Ambapua, Berhampur. Basing upon the advertisement dated 29.12.2007 the present complainant applied through an application by paying the initial booking amount of Rs.25,000/- on 28.01.2008. Further out of the entire seed amount pursuant to the allotment letter, initial seed amount of Rs.2,00,300/- has been paid and rest of the seed amount have not been paid. Thereby the alleged deficiency of service on the parts of the O.Ps for non-allotment is unreasonable and not sustainable. Moreover it is long drawn settled view and principle that, the Development Authorities has a right to escalate the price of the plot or house supposed to be provided to the public and there is justification in it. The complainant was communicated in time through O.P’s office letter No. 1463(63) dated 13.12.2013 but instead of giving his willingness, the complainant filed this case without any basis. Therefore the O.Ps prayed to dismiss the case due to lack of cause of action, not in accordance with Consumer Protection Act, barred by limitation, further heavy costs be imposed for filing such spurious and baseless complaint by suppressing the material facts of non-payment of seed installments, in the best interest of justice.
4. On the date of hearing of the consumer complaint learned counsel for the complainant and O.Ps were present. We heard argument from both sides at length. We perused the complaint petition, written version, written arguments and documents placed on the case record. It reveals that inspite of repeated approach the O.Ps did not heed to the complainant’s grievance. It is also pertinent to mention here that neither the O.Ps allotted the applied plot and flat to the complainant nor refunded the deposit money of the complainant. Hence in our considered view the O.Ps are negligent in rendering proper service to the complainant as such there is deficiency in service on the part of the O.Ps for which the complainant is to be compensated. For getting the plot and flat the complainant has approached the O.Ps times without number, but failed. For which undoubtedly the complainant has sustained mental agony as such he is entitled to get some relief as prayed for. The Hon’ble National CDR Commission, New Delhi has held in case of Punjab National Bank versus Meerut Development Authority reported in 2008(4) CPR 473 that “Delay in delivering possession of house/flat after receiving full amount for same amounts to deficiency in service on the part of the O.P. authority”.
On foregoing discussion and after observation of the aforesaid citation the complainant’s case is allowed on contest against the O.Ps. The O.Ps are jointly and severally liable as such they are directed to refund the actual deposited amount of the complainant alongwith 8% interest per annum from the date of filing of this case i.e. on 22.05.2014 to the complainant within 60 days from receipt of this order. Further the O.Ps are also directed to pay Rs.12,000/- for compensation alongwith Rs.2000/- as costs of litigation to the complainant within the above stipulated period failing which all the dues shall carry 12% interest per annum.
The order is pronounced on this day of 9th October 2018 under the signature and seal of this Forum. The office is directed to supply copy of order to the parties free of cost and a copy of same be sent to the server of
