Per Mr.Dhanraj Khamatkar, Hon’ble Member

This appeal takes an exception to an order passed by the District Consumer Forum, Thane in consumer complaint no.146/1994 dated 29/1/2000.  Facts leading to this appeal can be summarized as under:-

Complainant/respondent has opted for purchase of tenement under “Self financing outright purchase scheme” of the appellant.  Appellant has conducted “Demand Registration Survey 87” to ascertain the demand of tenements in seven townships in Navi Mumbai.  For the Demand Registration Survey 87, appellant published a booklet showing therein types of tenements, tentative price and the eligibility criteria for the registration.  Accordingly, the complainant has registered his name for 40 sq.meter tenement as per his pay scale by paying registration amount of Rs.4000/- on 16/7/1987.  The appellant issued a press advertisement in February 1990 assuring the prospective allottees that the part of the construction work had already commenced from October 1989 and tenders for construction of more tenements would be finalized by April 1990 and the advertisement said that the construction will be completed within a period of two years i.e. by April 1992. All the allotments were to be made by drawing a lot on the computer in presence of representative of allottees and independent observers.  For raising a loan complainant/respondent had approached to his parent department and the department had sanctioned him a loan with a condition that if the flat is mortgaged in the name of the President of India within three months from the disbursement of full amount of advance, a rebate in interest to the extent of 2.5% was allowed.  Accordingly, complainant/respondent executed tri-partite agreement with Government of India/CPWD and the appellant. 

Appellant informed respondent on 29/8/1991 about the location where he was allotted with tenement as per Computer Draw held on 27/8/1991.  In the said letter complainant/respondent was given option to withdraw from the scheme if the location was not approved by the complainant by refund of amounts paid with 7% interest.  As the tenement allotted to the complainant/respondent was not as per the specifications of the demand registered by him and admissible to his pay scale, he has requested the appellant to allot alternate tenement as per his entitlement and as per tri-partite agreement executed with Government of India, CPWD and the appellant. Further, the appellant had informed earlier the cost of Rs.1,56,780/-.  However, at the time of allotting final allotment, the cost was shown as Rs.1,96,686/-.  At the time of taking over possession of the flat, complainant/respondent has listed the deficiencies in the flat allotted.  However, appellant has not taken any cognizance of the deficiencies and hence the complainant has filed the consumer complaint showing there under the deficiencies in service of the appellant and the unfair trade practice adopted by the appellant.  Forum below had allowed the complaint and passed the following order:-

“1. The OP-CIDCO shall in exchange of the apartment no.D.138/1:3 Type D.138 in Sector 26 Vashi given in possession of the complainant vide Ex.27 and the Agreement of Sale dated 21.7.93 vide Ex.26, in as is what is condition, provide another 40 sq.mtr. Flat with Balcony at Vashi, Nerul or Belapur within a period of 3 months from the date of receipt of this order OR in the alternative,

2. The OP-CIDCO shall pay damages of Rs.73,405/- and costs of Rs.2000/- within a period of three months from the date of receipt of this order.”

Admittedly, appellant had conducted a “Demand Registration Survey” for tenements in seven townships of Navi Mumbai in June 1987 for ascertaining demand of the tenements. The appellant has received nearly 55000 applications. In February, 1990 appellant has issued a press advertising assuring the persons who registered their demand for tenement that the construction has already started from October 1989 and the tender is also called for construction of more tenements and the tenders will be finalized by April 1990 and the construction will be completed within two years i.e. construction already started by December 1991 and for the construction where tenders are called by April 1992. It is a fact that the respondent has registered his demand for tenement of 40 sq.meter with a balcony. However, only registration of the tenement was not a final condition.  The appellant has drawn a lot for the allotment and in a draw taken, the appellant’s name was not selected and hence the appellant has drawn a lot from the left out tenements and in that respondent has got a present tenement.  In para 6 of the order, the forum has observed that apart from the delay in construction, O.P. i.e. present appellant vide its letter dated 29/8/1991, informed the complainant about location where he was allotted tenement as per the Computer Draw held on 27/8/1991 which was at Vashi.  The complainant was given option to withdraw from the scheme, if the location was not approved by the complainant by refund of amount paid with 7% interest.  The respondent has opted for the tenement and now he cannot take a plea that he was not allotted tenement as per the specifications registered by him. As regards tri-partite agreement with Government of India, CPWD and appellant, agreement does not give the details of the tenements which the appellant has to allot to the complainant/respondent.

In a class application no.273/1993, the “Demand Registration Survey 1987” applicant’s association has challenged the allotment made by the appellant in the National Consumer Disputes Redressal Commission and the Ld. National Consumer Disputes Redressal Commission vide its order dated 11/1/1995 has observed that “we have carefully gone through the counter of the opposite party and find that there has not been any undue delay in the steps taken by CIDCO in finding out the ways and means to provide so many tenements.”

Further National Commission has observed that “in the present case CIDCO cannot be held guilty of delay in the construction of the tenements and the delay such as has occurred was caused due to the circumstances beyond its control and not due to its negligence.  The applicant had the option either to join the scheme if found eligible or to withdrew from it.”  With these observations Ld.National Consumer Disputes Redressal Commission has dismissed the class petition.  Order of the National Commission was challenged before the apex court by Civil Appeal no.5754 of 1995 and the appeal was dismissed by order dated 25/3/1996 of the apex court.

In fact the appellant in its written version has quoted this order. However, Ld.forum overlooked the order and passed the impugned order which is erroneous and arrived at wrong observations. Thus, there is neither deficiency in service nor unfair trade practice on the part of the appellant.

In view of the aforesaid legal and factual position, we pass the following order:-

                                                ORDER

1.     Appeal is allowed.

2.     Order of the forum below is hereby quashed and set aside.

3.     Complaint stands dismissed.

4.     Copies of the order be furnished to the parties.