DATE OF DISPOSAL: 09.10.2018
Sri Karuna Kar Nayak, President.
The complainant Susanta Kumar Panigrahi 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 28.1.2008 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 1407 sq.ft. at a cost of Rs.11,38,000.00. Subsequently as per Vivek Vihar Broucher and discussion with Berhampur Development Authority officials he had deposited additional amount of Rs.2,00,300/- on dated 17th June 2008, which he had gained from short term capital gain. In BDA brochure given to us in Jun 2008, HIG S (1) rate has been increased from Rs.11,38,000/- to Rs.11,65,000/- which was significant at that point of time. It is to be noted in BDA Demand survey (ii) category was not mentioned however, in published Boucher of BDA HIG S (iii)Category was mentioned. After discussion with BDA officials personally, by complainant’s father-in-law the complainant give preference of HIG S. His father had gone to attend the lottery, but the complainant’s name was missing in the list. BDA has charged excess price under letter No. 1463 (63)/BDA Berhampur dated 13.12.13. In the said letter BDA has asked to show his intent to buy 30’X60’plot through auction at a base rate of Rs.19,80,000/-. In Jan 2008 Demand survey, 40’X60’plot with built up area of 1407 sq.ft. was costing Rs.11,38,000/- , then increased price to Rs.11,65,000/- for plot of 40’X60’ with built up area 1407 sq.ft. in June 2008 BDA brochure. Now, in December 2013 they are offering only plot 30’X60’ at a base rate of Rs.19,80,000/-. This is indeed regrettable and highly unprofessional. BDA has started the work of Vivek vihar phase II more than two years back and charging excessive price additionally as per RTI information to other applicants BDA has used fund deposited by applicant for construction of house, so the case in primafacie made out and Forum would take cognizance. 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.11,65,000/- 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. Further in the complaint, the present complainant has given utmost priority to the detail correspondence made at different corners rather than his actual case. Hence the O.Ps denied to all such allegations. Moreover, this complaint is not maintainable as against the O.Ps, as the complainant is a purposive defaulter and not paid the seed installments and a defaulter can not maintain consumer complaint and deserves no sympathy from court of law, also the complaint is barred by limitation and not in accordance with the Consumer Protection Act, therefore the perplexing complaint filed would have been rejected or dismissed at this threshold. 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. Simultaneously opted for installment purchase and could not able to stand by his commitment for payment of installments as agreed upon. 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 amounts have not been paid, for that allotment letter could not be issued. Thereby the alleged deficiency of service on the part of the O.Ps for non allotment is unreasonable and not sustainable. Be it stated, once the complainant was found as a defaulter in a scheme, no deficiency of service can be attributed against the O.Ps, therefore complaint should be dismissed out rightly being not maintainable either in facts or law. 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.Ps office letter No. 1463 (63) dated 13.12.13 but instead of giving his willingness, the complainant filed this case without any basis. Further law is well settled on this score, as purchase of plot or flat would be governed by law of contract rather than Consumer Protection Act, hence not maintainable under C.P.Act. In this light the National Commission as observed: “Proper Forum to deal with a disputed question is civil court of competent jurisdiction”. Thereby this Forum has no jurisdiction to entertain the disputes relating to purchase of plots and flats through development authorities. Therefore the O.Ps prayed that the complaint of the complainant be dismissed, due to lack of cause of action, not in accordance with Consumer Protection Act, barred by limitation, further heavy cost 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 03.04.2014 to the complainant within 60 days from receipt of this order. Further the O.Ps are also directed to pay Rs.10,000/- 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
