DF Case No.47 of 2011
Date of filing:07/04/2011 Date of disposal:04/08/2014
Complainant:Shyamal Chandra Nandi, Street No.66, Qrs. No.49/A, C.L.W. Railway Colony,
P.O.-Chittaranjan, Burdwan-713331.
-VERSUS-
Opposite Party: 1. Project Manager, Rail Vihar, Asansol, service through: Mr.Siba Prasad
Ganguly, Kalyanpur Satelite Township, Gobindapur Mouza, P.O.-Asansol,
Dist.-Burdwan.
2. General Manager, Indian Railway Welfare Organization (IRWO), 156, S.P.
Mukherjee Road, Kolkata-700 020.
3. Managing Director, Indian Railway Welfare Organisation(IRWO), Shivaji
(Minto) Bridge, Railway Complex, Behind: Shankar Market,
New Delhi-110 001.
Present : Hon’ble President: Sri Udayan Mukhopadhyay
Hon’ble Member : Smt. Silpi Majumder
Hon’ble Member: Sri Durga Sankar Das
Appeared for the Complainant: Ld. Advocate, Sourav Kr. Mitra.
Appeared for the Opposite Party No.1 & 2: Ld. Advocate Banasree Nandy & Others.
Appeared for the Opposite Party No.3: None.
JUDGEMENT
This is an application U/s 12 of the C.P. Act, 1986.
The complainant’s short case is that he applied for a dwelling unit (flat) in Group Housing Scheme of IRWO at Rail Vihar, Asansol Project and his application was allowed in his favour by General Manager, O.P. No.2 vide letter No.IRWO/Asansol/ALT/000027/1 dated 25.5.2005 and a primary registration No.137029 & Asansol Reg. No.000027 was also allotted to him. As per this allotment letter, cost of the flat was fixed at Rs.4,75,000/- which is payable in installments and the first instalment of Rs.55,000/- was due for payment on or before 6.7.2005 and accordingly the purchaser/allottee had paid the same.
In a letter No. IRWO/EZ/CLW/Pt.III/05-06 dated 14.10.2006, General Manager(EZ) O.P.-2 addressed to the Chief Personal Officer, Chittaranjan Locomotive Works committed that outside door of the flat would be made wooden door. In the mean time the Managing Director of IRWO (O.P. No.3) informed the complainant that the cost of the dwelling unit allotted to him has been increased to Rs.6,65,000/- from 4,75,000/-, as was indicated in allotment letter dated 25.5.2006. Again on 5.6.2008 the Managing director, IRWO (O.P. No.3) informed that cost of the building has been again increased and the present revised cost comes to Rs.7,05,000/-. The complainant paid last instalment of Rs.71,000/- on 14.1.2010. Thus the complainant paid total Rs.7,05,000/- being the full cost of the flat which O.P. No.2, General Manager had admitted in his letter dated 29.3.2010 with details of payment in a separate sheet. In a letter dated 23.7.2010, the O.P. No.2 committed for few addition and alteration in specification of construction of flat and advised the complainant in his letter dated 4.10.2010 to take possession of dwelling unit by the last date being 31.12.2010. In his letter O.P. NO.2 had also committed that the common facilities will be completed shortly. On 16.2.2011 O.P. No.2 intimated the complainant that taking of possession of dwelling unit at Asansol Project is extended till 31.3.2011.
In reply to the above letter the complainant sent a letter to the O.P. No.2 on 7.3.2011, asking some clarification and intimated him unless he received the reply of the same he will not take possession of the unit. The unit allotted to the complainant has not been provided any separate boundary wall at the back side of the flat since two side boundary walls having joined with the main boundary wall of the project. But cost for this back side boundary wall was received from the complainant. It appears that the O.P. had miserably failed to comply with the commitment which amounts to deficiency of services and demanding increased cost of the allotted flat after realizing full cost is an unfair trade practice. On 27.3.2011 the complainant requested O.P. No.2 to ascertain him whether the dwelling unit No.48/A1, which was allotted to him is completed and has been made in a habitable condition to enable him to take possession of the same by 31.3.2011 as advised to him vided letter dated 16.2.2011 and he also intimated the O.P. that unless the unit is made in a habitable condition he will not take possession of the same as it will be of no use to him.
Due to aforesaid act of deficiency/negligence and unfair activity on the part of IRWO, the complainant suffers mentally and physically. Finding no other alternatives the complainant filed this case before this Forum for relief.
The O.P. No.1 & 2 have contested the case by filing written version, denying all the material allegations as leveled against them. The O.P.s further stated that the price fixed at the stage of initial allotment was based on the specification provided in the brochure for the project which included and provided for the external door as only flash door with teak timbering. It is true that by letter dated 14.10.2006 it was stated that wooden door for the outside door would be provided for the flat. However consequent to escalation of prices of material and labour, the cost of construction has escalated and the price of the dwelling unit had to be raised to Rs.6,65,000/- vide MD’s letter No.IRWO/Tech/ASN/Pt.III dated 29.11.2006 while working out escalation, to reduce the cost of flat the specification of external door was maintained as per brochure. The O.P.s asked the applicant if they are not in a position to bear the excess cost in that case they may allow to withdraw from the project and the booking money and other paid up money will be refunded. But the petitioner not withdrawn his application and given consent to continue. Again in 2008 due to escalation of price was raised Rs.8,21,000/- as per plan and Rs.7,05,000/- with one room less. The complainant consented for one room less at a cost of Rs.7,05,000/-. It should be mentioned here that delayed payment charge have been levied as per rules of IRWO published in the brochure at clause 9.2 of part-B and Rs.7374/- has been charged from the complainant for extra land for the plot allotted to the complainant which is in excess to the land provided to other similar units.
It is stated that the project was started in 2005 and completed in 2010. IRWO is an welfare organization functioning for the benefit of the Railway men and follows all the rules and regulations applicable to Government works in general and such due to excessive escalation of price as a result of increase in cost of building material, lot of changes in the plan of the buildings were undertaken on the request of the allottees to contain cost. Such changes in the scope of work at various stages of construction were done on request from the allottees. This was on main reason for delay in completion work. The costing of individual units has been done based on total cost of all the units divided by number of units with addition for extra land in the units based on no profit no loss principle. Height of boundary wall, compound wall were similar of all allottees and are provided for proper utilization and beneficial use of space for the benefit of the complainants.
It is stated that the unit is habitable while the complainant intentionally and with deliberate intent did not take possession thereof. It is also denied that the O.P. failed to comply with the commitment or there is deficiency in service. It is also stated that as per the latest technology and design and according to modern choice paneled plywood door has been provided which are efficient and efficacious than the conventional door. The project is made for the benefit of the members like the complainant and that the O.P. is otherwise is only an organization looking after the well fare and wellbeing of all the members alike, the O.P. cannot be saddled with any costs for the works which has been done for the benefit of the members. In fact, if any changes are to be effected the same can be done for the benefit of all the members and that the same cannot be given effect to any individual. The complainant has no cause of action to file the instant complaint and the complaint being malafide and not bonafide and without any cogent reason is liable to be rejected with costs.
Point for consideration in this case is;
- Whether there is any deficiency in service acted upon the O.P.s toward the construction which compels the complainant to refuse the possession unit allotted to the complainant?
DECISION WITH REASON
At the outset it must be stated that at the time of hearing of argument on 20.5.2014 Ld. Advocate of the complainant has stated that the report of the Executive Engineer (Civil), PWD, is not require at this stage because they are very much reluctant to send the name first of all and secondly the case of the complainant itself proves deficiency in service due to deviation of work. Ld. Advocate further submitted that bank authority already submitted one document showing the actual position of the property. It is true that we did not rely the said report of the bank authority on a view that bank already released the entire loan, which is not normally happening in case of in completed work. Be that as it may, we have withheld the delivery of judgment on that ground on 29.5.2014 and passed specific order on that date and again sent the copy of the order to the Executive Engineer (Civil), PWD, Asansol Sub-division mentioning the penal clause of Section 27 of the C.P. Act, in case of disobedience of the order. But no fruitful result comes out and thereafter two dates elapsed and the Ld. Advocate of the complainant filed one application in this regard and we decided to pass judgment i.e. how the judgment is passed by this forum without waiting further for the pitty of the Executive Engineer (Civil), PWD, Asansol Sub-division, particularly when complainant’s Lawyer is unwilling at this stage.
There is no disputes regarding the agreement between the complainant and O.P. and complainant has claimed that one dwelling unit was booked in Indian Railway Welfare Origination, Rail Vihar, Asansol Project. At a approximate cost of the flat is Rs.4,75,000/- which is tentative (annexure-A). It has also agreed upon the parties that the total cost will be payable in instalment, first of which Rs.55000/- is due for payment on or before 6.7.2005 (with a grass period of seven days) and remaining payments are mentioned with the annexure including terms and conditions etc. Thus one thing is clear that complainant was well aware regarding the escalation of price because it was mentioned that in annexure-1 that the “cost is tentative”. As a result the cost was increased due to hike in price, which has admitted by the complainant while given answer of the questionnaire of point No.3 i.e. O.P. put the question to the complainant “Do you admit that the price index has increased since 2008?” Complainant has replied supported by an affidavit “it is a fact”. Thus the question of increase of price of the flat or the unit is a matter of market price prevailing at the time of construction.
Now the dispute is complainant has alleged low height of boundary wall and entrance door is not made of teak wood as per contract. Apart from that we find that when complainant put questionnaire to O.P.s, the O.P. No. 2 has replied the same with his official seal and designation and supported by an affidavit. While we find regarding the height of boundary wall in questionnaire No.23, the O.P. No.2 cleverly avoided the same by saying “I have checked the record and then say”. But from the photographs we find that there is a discrimination acted upon in raising the boundary wall of two row flats. For example, the photographs show that the left hand side unit’s boundary walls are lower in height than the right side units dwelling house unit. Thus on a necked eye without the assistant of expert, it can be safely presumed, considering the avoiding tendency to give reply in a specific question of the complainant by O.P. No.2 that the height of the boundary wall is very low.
Again question No.21 clearly suggest that completion certificate has not yet been obtained by the O.P.s. The reason is no doubt in complete work as per specification/agreement. Apart from that which is very much required to lead the daily life i.e. electricity and water. So, we should turned our eyes to Point No.34 & 35 and 38 & 39. Wherefrom we find that O.P. No.2 by swearing affidavit has stated “cannot say” in answer No.34 and thereafter says “No” in answer No.35. If we consider both the answer then it is clear that there is no electric connection as yet installed in the dwelling unit of the complainant. So, how a human beings can take possession of the said dwelling unit ?
Again the answer No.38 & 39 shows that both the answer are self contradictory because answer No.38 shows “cannot say without checking the record” again answer No.39 says “all along there was water supply”. Our point is if there is all along water supply what prompted the O.P. No.2 to check the record and to give answer to question No.38?
Thus we find that the complainant’s unit has not yet completed, for which ADDA, (Asansol-Durgapur Development Authority) rightly withhold the completion certificate for the benefit of the consumer/complainant at large. So, we find that O.P. although claims themselves welfare organization, having no profit or gain but the fact remains they have deprived the complainant from the service which were assured as stated above i.e. height of boundary wall, entrance door, electric and water supply and completion certificate. Without completions of above the O.P. cannot invite the complainant to take possession of the unit in dispute. Thus we are really sorry to say that complainant being a Railway Employee after booking his unit to their own welfare originations, harassed to get habitable possession of the unit as assured, for which complainant should get compensation, litigation cost at this stage with a directions to the O.P. to raise the boundary wall upto the height of five feet and provide teak wood main door as per contract instead of panel ply wood door and also arrange to provide electricity, water supply and completion certificate within 45 days from the date of the order, in default complainant should get interest of his total money of Rs.7,05,000/- at the rate of 9% from the date of order to till the direction is completed. Hence it is
ORDERED
that the application U/s 12 of the C.P. Act is allowed on contest against the O.P.s. The O.P.s are directed to provide boundary wall of complainant’s unit with a height of 5 feet instead of 2 feet 6 inch. The main outside door have to be provided, made of teak wood. The electric connection and water supply should be arranged as well as completion certificate within 45 days from the date of order, in default 9% interest will carry on total amount of Rs.7,05,000/- ( total consideration money paid by the complainant) from the date of order to till its completion. The O.P.s are directed to pay compensation of Rs.20,000/- for mental harassment and agony along with litigation cost of Rs.1000/- to the complainant within 45 days from this date of order. It may be mentioned here that after completion of above-mentioned directions the complainant have to take physical possession of his unit within seven days from the completion in toto. It is also mentioned here if the O.P. fails to comply the directions made in above then complainant is at liberty to execute the order through this Ld. Forum. Let the plain copy of this order be handed over to all the parties free of cost.
(Udayan Mukhopadhyay)
Dictated and corrected by me. President
D.C.D.R.F., Burdwan
(Udayan Mukhopadhyay)
President
D.C.D.R.F., Burdwan
(Silpi Majumder) (Durga Sankar Das)
Member Member
D.C.D.R.F., Burdwan D.C.D.R.F., Burdwan
