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

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Complaint  Case No  :1026 of 2009

Date of Institution :  21.07.2009

Date of  Decision   :  13.04.2010

Wing Commander Akhil Deep Sachdeva, aged about 40 years, son of Shri Kuldeep Sachdeva, Resident of OMQ-P/7, Officers Enclave, Air Force Station, Pathankot, Punjab.

 ……Complainant

V E R S U S

(1)     Sahara India Pariwar, Housing Unit, Sahara India Tower, Kapurthala complex, Lucknow, through its Managing Director.

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

(3)  The Branch Manager, Sahara India Pariwar, SCO No. 1110-1111, Branch, Sector 22, Chandigarh. 

.…..Opposite Parties

CORAM:     SH.LAKSHMAN SHARMA              PRESIDENT

          SH.ASHOK RAJ BHANDARI       MEMBER

          MRS.MADHU MUTNEJA             MEMBER

PRESENT: Sh.Balkar Singh, Adv. for Complainant.

         Sh.N.S. Sidhu, Adv. for OPs.

PER ASHOK RAJ BHANDARI, MEMBER

        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.2707000/- by depositing Rs.1,35,000/- on 31/12/2004 being 5% of the total cost on 31.12.2004, vide receipt annexure   C-1. 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 by 2007, copy of the advertisement showing the Housing Scheme at Chandigarh is at Annexure C-5, but when they did nothing, the Complainant wrote a letter dated 12.1.2007 to OP No. 2, seeking status of construction activity (Annexure C-8). 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. It was given in the advertisement dated 12/12/2004 that those members who do not get allotment of houses shall get back the booking amount before April 15, 2005. But the same was not done by the OPs. Hence, this complaint, alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice. In the end, the Complainant has prayed for the following reliefs:-

a)  OPs be directed to allot the house at Chandigarh to the Complainant at the original booking price.

b)  OPs be directed to refund the amount of Rs.1,35,000/- to the Complainant with interest from 27.11.2003 @24% p.a. till the date of realization.

c)  OPs be directed t pay the compensation of Rs.17.00 lakhs on account of compensation for loss of opportunity of owning a house at Chandigarh in favour of Complainant.

d)  The Complainant may be awarded Rs.1.50 lakhs for suffering mental agony and harassment at the hands of OPs.

e)  The OPs be directed to pay Rs.15,000/- as the cost of litigation in favour of Complainant.

2]      Notice of the complaint was sent to OPs seeking their version of the case. 

3]      OPs in their joint written statement, while admitting the factual matrix of the case/reply, pleaded that initially, the Complainant had subscribed to Sahara Swarn/ Rajat Yojana and thereafter, he converted his credit value of the said Scheme into the booking of a housing unit in the Sahara city Homes, Chandigarh. He had advanced a total sum of Rs.1,35,350/- on 31.12.2004 towards the provisional booking amount of a housing unit in Sahara City Homes, Chandigarh. 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 certificate. 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, thus, impugned the 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 taken 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.

4]      Parties led evidence in support of their contentions.

5]      We have carefully gone through the entire case thoroughly, including the complaint and the relevant documents tendered by the complainant / OPs. We also heard the arguments put forth by the learned counsels for the Complainant and OPs. As a result of the detailed analysis of the case, the following points/issues have clearly emerged and certain conclusions/arrived at, accordingly:-

i]  The basic facts of the case in respect of the Complainant having booked a 03 Bed Room Flat (Type C) at Chandigarh under Sahara Swaran/Rajat Yojna Scheme floated by OPs, costing Rs.2707000/- by depositing Rs.1,35,000/- on 31/12/2004 being 5% of the total cost and that the OPs have not been able to hand over the possession of the flat to the Complainant, till now, have all been admitted. It is also a fact that the Complainant wrote to the OP No. 2 on 12.1.2007, asking them to let him know the exact status of the construction work, but no reply was received by him. As per the advertisement issued by the OPs dated 12.12.2004, it was mentioned that those members, who do not get allotment of houses shall receive back the booking amount before April 15, 2005. In the present case, neither the allotment has been made to the Complainant, nor the amount of Rs.1.35 lacs refunded to him till date. This has led to the present complaint.

ii] The allegations of the Complainant have been denied in totality by the OPs. While admitting the factual matrix of the case, it has been stated that no doubt the Complainant had advanced a total sum of Rs.1,35,350/- on 30.12.2004, being the provisional booking amount of a housing unit in Sahara City Homes, Chandigarh. But no assurance about the date of possession was given by the OPs to the Complainant. In support of its case, the OPs have pleaded that they were dependent on the Govt. and various other authorities for obtaining a number of clearances from them. Not only that, the competent authority had raised the External Development Charges [EDC] from Rs.2.50 lacs per acre to Rs.15.90 lacs per acre, for which there has been a lot of litigation between the OPs and the authorities, which is still going on. In the light of this, it was not possible for the OPs to take up the construction work of the flats due to the reasons beyond their control and the delay in handing over the possession of the unit to the Complainant was due to force majeure and, therefore, there is no deficiency in service on their pat and the complaint needs dismissal.

iii] After going through the entire case in detail, including the pleadings and arguments of all the parties, it is quite clear that there has been an inordinate delay on the part of the OPs and despite the lapse of more than 05 years, they have not made either the allotment or given possession of the flat promised by them to the Complainant. So far as the issue of obtaining clearances from the various Govt. Departments and other Authorities are concerned, it is not the job of the Complainant to obtain these clearances. Moreso, the law on this issue is very much clear, stating that the promoters/ builders should float the various Housing Schemes only after obtaining all the sanctions and clearances from the respective authorities, as has been held in the case of Kamal Sood Vs. DLF Universal Ltd., III(2007) CPJ-7 (NC). 

6]      In view of the above stated authority, as well as the peculiar facts and circumstances of the present case, it is our considered view that there is gross deficiency of service, as well as indulgence in an unfair trade practice on the part of the OPs. As already admitted by the OPs themselves, they had neither given the allotment, nor possession of the promised flat to the Complainant during the last more than 05 years, which is a serious deficiency of service on their part. Further, not refunding the amount of Rs.1.35 lacs to the Complainant by April 2005, is also in itself, an unfair trade practice on the part of the OPs. In view of this, the present case of the Complainant has a lot of merit, weight and substance. As such, it deserves acceptance on merit. We, therefore, allow the present complaint in favour of the Complainant and against the OPs and pass the following order.

7]      The OPs shall, jointly and severally, make the following payments to the Complainant:-

(i)    A sum of Rs.1.35 lacs, which the Complainant has paid to the OPs as provisional booking amount for housing flat in Sahara City Homes, Chandigarh.

(ii)   A sum of Rs.80,000/- as compensation for causing physical harassment, mental agony and pain to the Complainant, on account of huge delay in settling the case of the Complainant for allotment of the promised flat.

(iii) To pay a sum of Rs.5,000/- as litigation cost.

8]      The aforesaid order be complied with by the OPs, jointly and severally, within a period of 06 weeks from the receipt of its certified copy, failing which the OPs shall pay the sum of Rs.2.15 lakh along with interest @18% per annum from the date of deposit of the initial amount i.e. 31.12.2004, till the date of realization, besides paying the cost of litigation as Rs.5,000/- to the Complainant.

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

Announced

13.04.2010                                       Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

                                              Sd/-

                                   (ASHOK RAJ BHANDARI)

MEMBER

                                            Sd/-

(MADHU MUTNEJA]

MEMBER

‘Dutt’