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

                                  Consumer Complaint No.102 of 2015

                                 Date of institution:          09.03.2015

                                           Date of Decision:            18.12.2015

1.     Satpal Singh son of Kishori Lal, # 2511/1, Indra Flats, Manimajra, UT, Chandigarh.

2.     Mrs. Meena w/o Satpal Singh, # 2511/1, Indra Flats, Manimajra, UT, Chandigarh.

                             ……..Complainants

                                        Versus

1.     Radha Enclave through its Director, village Kishanpura, MC Zirakpur, Tehsil Derabassi, District Mohali.

        (Name of OP No.1 deleted from the array of the OPs vide order dated 15.05.2015).

2.     Mrs. Meenu Goyal wife of Shri Anil Goyal, # 266, Sector 16, Panchkula.

3.     Shri Anil Goyal, # 266, Sector 16, Panchkula.

4.     Punjab State Power Corporation Limited, Zirakpur through its SDO.

                                                        ………. Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

CORAM

Mrs. Madhu. P. Singh, President.

Shri Amrinder Singh Sidhu, Member

Mrs. R.K. Aulakh, Member.

Present:    Complainant in person with counsel Shri Pankaj Chandgothia.

Shri S.P. Sharma, counsel for the OP No.2 and 3.

Shri Aksh Chetal, counsel for OP No.4

Name of OP No.1 deleted vide order dated 15.05.2015.

(Mrs. Madhu P. Singh, President)

ORDER

                The complainants have filed the present complaint seeking following direction to the Opposite Parties (for short ‘the OPs’) to:

(a)    obtain the completion certificate from the competent authority under the PAPRA Act and all other required NOCs to facilitate the connections of Electricity, water, sewerage for the flat and to pay interest @ 18% per annum on the amount paid for the flat w.e.f. 29.10.2014 till provision of basic essential services.

(b)    refund the amounts taken wrongly including service tax and EDC.

(c)    provide promised 35 feet road and proper  parking alongwith effective roof rights.

(d)    shift the water tank from the roof of the complainants in order to stop leakage of water inside the flat.

(e)    repair the walls and ceiling of the flat of the complainants and make it leak proof, fungus free and livable.

(f)     pay a sum of Rs.3,00,000/- as compensation for deficiencies and shortcomings in the flat and Rs.3.00 lacs as compensation for financial losses, physical and mental harassment.

(g)    pay Rs.2.00 lacs as punitive damages and unfair trade practice.

(h)    pay Rs.33,000/- as legal costs.

                The OP No.1 to 3 floated a scheme for allotment of residential apartments and flats under the name and style of ‘Radha Enclave, Zirakpur’.  Allured by the promises and representations made by the OPs, the complainants bought a flat in the project of the OPs. The OPs showed site plan of the area which was allegedly approved by the competent authority.  The complainants paid the entire demanded amount towards the cost of the flat vide receipts Ex.C-2 and C-3. The OP No.2 also took Rs.74,160/- from the complainant towards service tax which the OPs have not deposited with the Govt. The OPs also took Rs.18,000/- from the complainants towards EDC charges which the OPs have also not paid to the Govt.  Flat No.27-C Top Floor (Second Floor) with basement parking and roof rights has been purchased by the complainants from the OPs.  The complainants paid the amount of the flat to the OPs after taking loan from Vijay Bank and they are paying EMI of Rs.18,250/- to the bank. The sale deed of the flat was executed on 29.10.2014 but the Ops have failed to provide the promised amenities and facilities like Electricity, drinking water and sewerage connection. The provided parking and roof rights are also defective and there is no proper approach road to the apartment despite promise of 35 feet road.  The construction material and quality is very poor.  The complainants have been continuously taking up the issue of shortcomings but the OPs have been maintaining silence on these aspects.  As per Clause 11 of the sale deed the provisions of the PAPRA Act will apply but the OPs have violated the provisions.  The OPs have failed to provide electricity connection and the relevant documents for this purpose.  The complainants applied for electricity connection but OP No.4 refused to take the application on the ground the colony of OP Nos.1 to 3 is unauthorized. SDO of OP No.4 stated that OP No.1 to 3 does not have NOC from it and electricity connection cannot be granted to the complainants for the purchased flat.  With these allegations the complainants have filed the present complaint.

2.             OP No.2 in the preliminary objections of its written statement has pleaded that the complaint is wholly misconceived, groundless and unsustainable in law. The dispute in question is outside the purview of Consumer Protection Act.  The complainant is not a consumer and the controversy involved in the complaint is not a consumer dispute.  The complainants have no locus standi to initiate the present proceedings. The complainants have accepted/taken over the physical possession of the flat without any kind of protest and the present complaint is merely an afterthought. On merits, it is pleaded that it has never floated a scheme for allotment of residential apartments.  The complainants have not purchased the flat from OP No.2. The complainants are already having the NOC issued by the Municipal Corporation, Zirakpur. OP No.2 has denied the poor quality of construction material and quality.  OP No.2 had already handed over all the requisite documents of the flat to the complainants and nothing remains to be said regarding completion certificate.  For supply of drinking water, the complainants can approach the MC, Zirakpur and the allegation of sewerage is false allegation.  There is no problem of leaking in roof and or walls and the flat in question is constructed with good quality material and the same is perfect for habitation.  OP No.2 has denied any deficiency in service or unfair trade practice on its part and has sought dismissal of the complaint.

3.             OP No.3 in its reply has pleaded that it has been wrongly impleaded under some mistaken belief/identity. OP No.3 has no direct concern with the issue in question.  It has prayed for deletion of his name from the array of the OPs.

4.             OP No.4 in its separate written statement has pleaded that  dispute of the complainants is with OP No.1 to 3 who are duty bound to reply and explain the allegations made by the complainants.  Release of electricity connections in a newly built colony requires a procedure to be followed. The procedure for release of connection for residential colonies has been provided under Clause 8.5 of the conditions of supply.   If the complainants apply for new electricity connection after submitting mandatory documents alongwith mandatory electricity connection charges alongwith service connection charges, OP No.4 will proceed to release the electricity connection to the complainants as per rules and regulations. Thus, denying any deficiency in service on its part, OP No.4 has also sought dismissal of the complaint against it.

5.             To succeed in the complaint, the complainants proved on record affidavit Ex.CW-1/1 and tendered in evidence documents Ex.C-1 to C-10.

6.             Evidence of OP No.2 and 3 consists of affidavits of Meenu Goyal Ex.OP-2/1 and Anil Goyal Ex.OP-3/1 and copies of documents Ex.OP-2/2 to Ex.OP-2/6.

7.             Evidence of OP No.4 consists of affidavit Er. Khushwinder Singh, Assistant Engineer Ex.OP-4/1 and copies of documents Ex.OP-4/1 to Ex.OP-4/3.

8.             We have heard learned counsel for the parties and have also gone through written arguments filed by them.

9.             As per the complainants, OP No.2 was allottee of second floor (top floor) No.27-C of Plot No.27 having covered area of 598 sq. ft. situated at Radha Enclave, Village Kishanpura, MC Zirakpur, Tehsil Dera Bassi, District SAS Nagar, Punjab.  Thereafter OP No.2 had sold the said flat to the complainants vide registered sale deed dated 30.10.2014 Ex.C-5 and paid the full consideration and then the complainant have taken over the possession of the flat. As per recital of the sale deed, OP No.2 claimed to be the absolute owner in possession of the property in question and has further assured the purchasers i.e. the complainants to use, utilize, holds, sell and transfer the said property in any or all manners and the purchasers have the right to make repair in the said property hereby sold alongwith the services attached with the said property and the property sold to the complainants is on Punjab Apartment Basis. Further the OP No.2 has taken an obligation upon herself to provide water connection to the complainants/purchasers and further assured to provide all relevant documents for the purpose of securing the electricity connection by the purchasers from the concerned department. As per the complainants, the OP No.2 besides being the seller is also service provider to them.  The grievance of the complainants is that the OP No.2 besides receiving the total agreed sale consideration, has also received a sum of Rs.74,160/- as service tax from them as is evident from Ex.C-3 i.e. the receipt dated 30.10.2014 issued by OP No.2.  As per the complainants upon taking the possession of the property in question they found certain defects as due to the leakage of over head tanks, the property is being damaged and the complainants have brought this fact to the knowledge of the OP No.2 and the same has not been rectified till date. The construction material used is of poor quality. The complainants has, thereafter approached OP No.4 for release of electricity connection vide Ex.OP-4/3 and OP No.4 has refused to release the electricity connection as the flat is situated in an unauthorized colony.  As per the complainants, the OP No.2 has not revealed this fact to them at the time of purchase of the flat and in fact has misrepresented and mislead the complainants to believe the status of the property in question being situated in authorized colony. The complainants brought this fact to the knowledge of OP No.2 vide Ex.C-6 registered letter dated 03.12.2014 followed by reminder dated 26.12.2014 Ex.C-7 and OP No.2 has failed to provide any aid and assistance to the complainant in getting the electricity connection from OP No.4. The complainant then approached OP No.4 vide his request dated 27.01.2015 Ex.C-8 and paid the security amount of Rs.3,255/- vide receipt dated 22.06.2015 issued by OP No.4 Ex.C-10 and the electricity connection has been released to them on 01.07.2015 due to the change of the policy of the State wherein the State Govt. has authorized OP No.4 to issue the electricity connection even to the unauthorized colonies.  The grievance of the complainant is that the OP No.2 has mislead and misrepresented to the complainant at the time of sale of the property in question and has thus indulged into unfair trade practice causing financial loss and mental agony.

10.           OP No.2 has denied deficiency in service and unfair trade practice as the sale of the property in question is a sale simplicitor and the complainant is not a consumer of OP No.2 and, therefore, the complaint is not maintainable against her.

11.           At the outset while arguing the matter, the counsel for the complainants has desired to confine his arguments qua the following issues:

                Whether the OP No.2 has sold the property in question to the complainants on as is where is basis or whether the OP No.2 has promised to provide the services attached with the property i.e. the water and electricity connections by providing necessary documents to the complainants; and whether the OP No.2 has received only the sale consideration or received the service tax as well from the complainants against the promised services as per sale deed.

12.           Before we decide the issue on merits, it will be appropriate to take up the preliminary issue raised by OP No.2 that the complainants are not consumers as OP No.2 is not a service provider as the sale of the property in question is sale simplicitor and not coupled with any promise of services to be rendered by OP No.2 to the complainants.  Therefore, we are referring to the contents of the sale deed Ex.C-5. As per Clause 12 of the sale deed the OP No.2 has taken over an obligation upon her to provide water connection to the complainants and also provide the relevant documents for having electricity connection from the concerned department/authority.  Further the receipt Ex.C-3 clearly shows that OP No.2 has received Rs.74,160/- as service charges from the complainants. Thus, once as per Clause-12 of the sale deed Ex.C-5, the OP No.2 has promised to provide the water connection and relevant documents for securing the electricity connection and then received Rs.74,160/- as service charges vide receipt Ex.C-3, the sale of the property in question cannot be held to be a sale simplicitor. OP No.2 has taken an obligation of service provider to the complainants as it is ample clear from the contents of Ex.C-3 as well as Ex.C-5 clause-12. Therefore, the objection of OP No.2 is not maintainable and OP No.2 being the service provider, the complainant against her is maintainable.

13.           Now on merits, the contents of sale deed clearly show that the property in question is not a sale simplicitor. Rather Clause-12 of the sale deed clearly show and casts an obligation upon OP No.2 the executant of the sale deed to provide the water connection to the complainants and further provide all relevant documents for the purpose of having the electricity connection from the concerned department/authority. Therefore, the sale of property in favour of the complainants by OP No.2 is not on as is where is basis but is also coupled with the promised services i.e. water and electricity connection.

14.           As per the complainants when they have approached the authorities for release of electricity connection supported by the NOC issued by the MC Council, Zirakpur, the OP No.4 has not released the connection on the ground that the house of the complainants fall in an unauthorized colony and, therefore, due to the misleading acts of the OP No.2 the complainants have been deprived of the facility of electricity connection and due to non availability of electricity connection, the complainants have been deprived of use and benefit of the property in question.  The request letter dated 03.12.2014 sent by the complainants to OP No.2 vide registered post Ex.C-6 remained unanswered in the hands of OP No.2. The complainants thereafter approached OP No.4 and submitted the applications dated 26.12.2014 and then 20.01.2015 alongwith requisite fee for release of electricity connection. Finding no response from OP No.4 the complainants have sent registered letter Ex.C-8 praying for release of connection.  Upon personal visit to OP No.4 the complainants learnt that the connection cannot be released to them as their flat falls in unauthorized colony.  As per Govt. policy the unauthorized colonies cannot be released any electricity connection. Thus, it is ample clear that the property in question was sold to the complainants in unauthorized colony. On the other hand counsel for the OP No.2 has drawn our attention to Ex.OP-2/2 showing that the colony in question was authorized colony as they have got the regularization certificate from the competent authority on 25.11.2013. We have perused the contents of Ex.OP-2/2 and found that the regularization certificate was conditional subject to payment of Rs. 1,36,640.00 failing which the regularization certificate granted in favour of the OP No.2 shall be withdrawn. The OP No.2 has failed to show whether it has paid the said amount to the concerned authorities on the date when the sale deed has been executed between the parties i.e. sale deed Ex.C-5. Thus the document or the information gathered by the complaints from the public authority i.e. OP No.4 that on the date of seeking electricity connection, the colony was unauthorized and now OP No.4 has released the electricity connection to the complainants not upon regularization of the colony but under the changed policy of the State where the State has permitted the release of connection to the houses situated in unauthorized colonies as per Ex.OP-4/4.  Therefore, the moot question, when the sale deed was executed by OP No.2 in favour of the complainants, the colony in which the flat was situated was an unauthorized colony and till date it is unauthorised colony as OP No.2 has failed to show any document regarding regularization certificate in favour of the colony. The act of OP No.2 i.e. sale of the property in question in an unauthorized colony is an act of unfair trade practice giving misrepresentation and misleading information to the complainants at the time of purchase of property in question. 

15.           Perusal of Ex.C-3 clearly shows that OP No.2 has received Rs.74,160/- from the complainants as service tax and has failed to provide the promised services and, therefore, has rendered deficiency in service to the complainants. Therefore, on both the counts the complainants have proved complaint against OP No.2.

16.           So far OP No.3 is concerned, the complainants have failed to show any relationship between them and the transaction i.e. sale deed in question. Thus, complaint against OP No.3 is not maintainable.

17.           As far as OP No.4 is concerned, we do not find anything amiss on its part as it has followed the policy instructions regarding non release of electricity connection at the initial stage and subsequently release of the electricity connection as per policy instructions prevalent at the relevant time. Therefore, complaint against OP No.4 deserves dismissal.

18.           Thus due to the acts of omission and commission on the part of OP No.2 i.e. unfair trade practice and deficiency in service having been duly proved against OP No.2 by the complainants, the complaint deserves to be allowed and the complainants deserve to be compensated for causing mental agony, harassment and financial loss.

19.           Thus the complaint against OP No.1,3 and 4 is dismissed.  The complaint is allowed against OP No.2 with the following direction:

(a)    to pay to the complainants a lump sum compensation of Rs.25,000/- (Rs. Twenty five thousand only) deficiency in service, mental agony, harassment and costs of litigation.

                Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.

Pronounced.                           

December 18, 2015.     

                        (Mrs. Madhu P. Singh)

                                                                        President

(Amrinder Singh Sidhu)

Member

(Mrs. R.K. Aulakh)

             Member