BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Complt. Case No: 964 of 2009

Date of Institution:  10.07.2009

Date of  Decision :  07.07.2010

Hardeep Singh Bedi son of S.Kartar Singh Bedi, resident of House No.1337, Sector 44-B, Chandigarh.

 ……Complainant

V E R S U S

(1)          Sahara India Pariwar, Housing Unit, Sahara India Tower, 7 Kapoorthala Complex, Lucknow, through its Managing Director.

(2)          Regional Office, Sahara India Pariwar, SCO No. 1110-1111, Branch Office Sector 22, Chandigarh, through its Regional Manager.

(3)          HariKishan, RFM, C/o Sahara India Pariwar, SCO No. 1110-1111, Branch Office Sector 22, Chandigarh. 

.…..Opposite Parties

CORAM:          SH.LAKSHMAN SHARMA                         PRESIDENT

                    SH.ASHOK RAJ BHANDARI            MEMBER

                    MRS.MADHU MUTNEJA                        MEMBER

PRESENT:     Sh.H.S.Saini, Adv. for the complainant.

Sh.N.S.Sidhu, Adv. for OPs

PER ASHOK RAJ BHANDARI, MEMBER

1]                 Concisely put, the Complainant applied for allotment of 03 Bed Room Flat (Type C) at Chandigarh under Sahara Swaran/Rajat Yojna Scheme floated by OPs, costing Rs.27,07,000/- by depositing Rs.1,36,450/- on 31/12/2004, Rs.11,279/- on 31.1.2005, Rs.50,069/- on 2.1.2006, Rs.74,000/- on 2.1.2006, Rs.22,558/- on 31.10.2006, total amounting to Rs.2,94,356/- vide Ann.C-2 to C-6.  It was averred that the OPs were to hand over possession of the flat to the members of the first phase in the Sahara City maximum upto 31.12.2007 but when nothing was done till that date, the Complainant started visiting OPs and requested them to start & complete the construction at the earliest. However, neither the Complainant was allotted any housing unit, despite numerous visits to the OPs and representations made, nor the amount so deposited was refunded to him. Ultimately, a legal notice on 4.5.2009 was sent to the OPs but to no effect. Hence, this complaint, alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice and praying for payment of loss suffered by him to the tune of Rs.8,39,356/- including the deposited amount, compensation, cost of litigation etc. along with interest @18% p.a. from 31.12.2007.

2]                 The OPs in their joint written statement, while admitting the factual matrix of the case/reply, pleaded that the amount of Rs.2,94,356/- deposited by the complainant towards his flat in Sahara City Homes (SCH) –Chandigarh was only an advance which denotes that as and when the project of SCH, Chandigarh would be operational, the complainant would be given preference in the allotment of the flat of desired category. It was pleaded that no assurance about the date of possession was ever given by the OPs to Complainant, as the construction projects were subject to various statutory compliances and the developers were at the mercy of the competent authorities which took their sweet time to issue the compliance certificates. It was submitted that in the instant case, the OPs have already acquired over 200 acres of agricultural land for Sahara City Homes, Chandigarh and further the Change of Land Use Certificate (CLU) has also been procured for 147 acres of land. The competent authority had issued the Letter of Intent (LOI) dated 16.11.2006 for Sahara City Homes, Chandigarh. In the said LOI, instead of charging 2.5 lac INR per acre, the competent authority had raised a demand of 15.9 lac INR per acre towards the External Development Charges. In order to safe guard the interest of the buyers on whom the additional burden was to shift, the OPs challenged the malafide act of competent authority, the impugned demand of 15.9 lac INR per acre towards EDC, before the Punjab and Haryana High Court vide CWP No. 460/2007. The same was disposed of by the Hon’ble Court vide its judgment dated 10.9.2008, interalia, directing the competent authority to decide the matter afresh. Pursuant to the order of Hon’ble High Court, the OP had approached the competent authority which had dismissed the contentions of the OPs. Thereafter, the OPs had again filed a CWP No. 2161/2009, interalia, challenging the order of the competent authority before Hon’ble Punjab and Haryana High Court, which was eventually dismissed by the Single Bench. The OPs have thereafter, filed the LPA against the said order. Till the matter was sub-judice before the Court, the details of the same could not be divulged by the OPs to any one else. The acts of the OPs were bonafide and done in good faith for securing the interest of the buyers. As such, the OPs cannot be fastened with the blame of delay in handing over of possession of the unit to the Complainant as the delay was due to Force Majeure and for the reasons beyond the control of the OPs.  All other material contentions of the Complainant were controverted. Pleading that there was no deficiency in service on its part, a prayer has been made for dismissal of the complaint.

3]                 Parties led evidence in support of their contentions.

4]                 We have heard the ld.Counsel for the parties and have perused the record & evidence thoroughly.

5]                 The basic facts of the case in respect of the complainant having booked a 3 Bedroom Flat with the OPs at Chandigarh and having paid a total sum of Rs.2,94,356/- during the period from 31.12.2004 to 31.10.2006 and that the flat in question has not been handed over to the complainant have all been admitted.

6]                 The grievance of the complainant is that although he was assured confirmed allotment & possession of the flat by the end of the year 2007 as per the brochure issued by the OPs but no construction work has yet been started at the site of construction till date and further there is no possibility of the allotment of flat and giving of possession of the same to him in the near future.  On this ground, the complainant has alleged not only deficiency in service on the part of the OPs but also indulgence in unfair trade practice.  

7]                 The contentions of the complainant have been denied and rebutted by the OPs by saying that there is no deficiency in service or indulgence in unfair trade practice on their part.  The OPs say that they have taken all steps to build the flats at the given site at Chandigarh by acquiring over 200 Acres of agricultural land for Sahara City Homes (SCH), Chandigarh Scheme and further Change of Land Use (CLU) had also been procured for 147 acres of land.  The competent authority  had also issued the Letter of Intent (LOI), dated 16.4.2006 for SCH, Chandigarh but in the said LOI instead of charging of Rs.2.5 lacs per acre, the competent authority had raised a demand of Rs.15.9 lacs per acre towards the External Development Charges (EDC).  The OPs say that in order to safeguard the interest of the buyers on whom the additional burden of the EDC was to be shifted, they challenged the malafide act of the competent authority in the Hon’ble Punjab & Haryana High Court at Chandigarh.  The same has been under litigation during the last about 3 years and the matter was still under sub-judice and therefore no action could be taken to execute the project for building the flats on the land acquired by the OPs for the purpose.  The OPs have further pleaded that they cannot be fastened with the blame of delay in handing over the possession of the dwelling unit to the complainant as the delay in question is due to Force Majure and for the reasons beyond the control of the OPs.  On these grounds, the OPs have claimed that they there has been no deficiency in service or unfair trade practice on their part and therefore, the present complaint be dismissed with costs.

8]                 After thoroughly examining and scrutinizing the pleadings, documents and the argument of all the parties, it has become quite clear that although the OPs had clearly stated in their brochure that the possession of the flats for the allottees of Ist Phase of the project under SCH, Chandigarh Scheme was to be delivered by the end of 2007, yet they have not been able to fulfill their commitment and till date no construction work has been started at the building site.  The only plea taken by the OPs in support of their case has been that they were not able to get appropriate sanctions and clearances from different government authorities and further that the competent authority had increased the External Development Charges (EDC) from the earlier amount of Rs.2.5 lacs to Rs.15.9 lacs per acre, which was challenged by them in the Hon’ble Punjab & Haryana High Court at Chandigarh and the matter continues to remain sub-judice.  The second plea taken by the Ops is that all these factors, which caused undue delay in the execution of the project were beyond their control as it was only on account of Force Majure, which was not in their control at all.

9]                 The Hon’ble National Commission in case of Kamal Sood Vs. DLF Universal Ltd., III(2007) CPJ-7(NC) held that collecting public money by the builders without getting all requisite permissions amounts to unfair trade practice.  Therefore, in all eventualities, non-delivery of the possession of the flat within the prescribed period amounts to deficiency in service on the part of the OPs.  It is also true that the complainant had given his hard earned money to the OPs in the year 2004 with the hope that he will get the flat by the end of 2007.  During all this period, the various amounts paid by the complainant remained with the OPs and were utilized by them for their own purpose without passing on any promised benefit to the complainant, which itself is a deficiency in service on their part.  Further not only that the flats in question are not ready for giving possession even at this belated stage as the construction works has not commenced at all till date but also there appears to be no possibility of the OPs handing the possession of the flat even in the near/distant future, which would mean that the amount paid by the complainant i.e. Rs.2,94,356/- will continue to remain with OPs without any hope of giving possession of the flat to the complainant for an indefinite period of time; which in itself is not only a deficiency in service but also an unfair trade practice on the part of OPs.

10]               Keeping in view the above detailed analysis of the case, in our considered opinion, there is serious deficiency in service as well as indulgence in unfair trade practice on the part of OPs.  The present complaint has a lot of merit, weight and substance in favour of the complainant and against the OPs.  We therefore allow the complaint in favour of the complainant.  The OPs are directed to make the following payments to the complainant:-

i)             To pay a sum of Rs.2,94,356/- to the complainant along with interest @9% per annum calculated from the respective dates of deposits till the date of realization.

ii)            To pay litigation cost of Rs.10,000/- to the complainant.

The aforesaid amount shall be paid by the OPs within 45 days from the date of receipt of certified copy of this order, failing which the OPs shall pay a sum of Rs.2,94,356/- to the complainant along with interest @18% per annum calculated from the respective dates of deposits till the date of realization besides paying the costs of litigation of Rs.10,000/-.

11]         Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

7^th July, 2010                                                           

(LAKSHMAN SHARMA)

PRESIDENT

                                                                   (ASHOK RAJ BHANDARI)

MEMBER

(MADHU MUTNEJA]

MEMBER