STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 10.10.2019
Date of final hearing: 10.05.2023
Date of pronouncement: 28.06.2023
First Appeal No.893 of 2019
In the matter of :-
Sarjit Singh S/o Sh. Girdhari Lal, R/o Village and Post Office Mohna, Tehsil Ballabgarh, District Faridabad-121004. …..Appellant
Versus
- The Secretary, Housing Board Haryana, Plot No. C-15, Awas Bhawan, Sector-6, Panchkula, Haryana 134109.
- Executive Engineer, Housing Board, Haryana, House No. 2191-92, Housing Board Colony, Sector 28, Faridabad.
…..Respondents
CORAM: Naresh Katyal, Judicial Member
Argued by:- None for the appellant.
Dr. Neetu Gupta, proxy counsel for Sh. Tarun Gupta, counsel for the respondents.
Date of Institution: 12.06.2020
Date of final hearing: 10.05.2023
Date of pronouncement: 28.06.2023
First Appeal No.252 of 2020
In the matter of :-
- The Secretary, Housing Board Haryana, Plot No. C-15, Awas Bhawan, Sector-6, Panchkula, Haryana 134109.
- Executive Engineer, Housing Board, Haryana, House No. 2191-92, Housing Board Colony, Sector 28, Faridabad. …..Appellants
Versus
Sarjit Singh S/o Sh. Girdhari Lal, R/o Village and Post Office Mohna, Tehsil Ballabgarh, District Faridabad-121004. …..Respondent
CORAM: Naresh Katyal, Judicial Member
Argued by:- Dr. Neetu Gupta, proxy counsel for Sh. Tarun Gupta, counsel for the appellants.
None for the respondent.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
By this order above mentioned two cross appeals are being disposed off. In both appeals, legality of order dated 02.04.2019 passed by District Consumer Disputes Rederssal Forum, Faridabad (In short “District Commission”) has been questioned.
2. In First Appeal No. 252 of 2020 filed by Housing Board, Haryana there is delay of 401 days in filing the appeal. For the usual reason, mentioned in the application for seeking condonation of delay; this abnormal period of delay is condoned. It also deserves to be condoned for another reason that cross Appeal No. 893 of 2019 has been filed by complainant-Sarjit Singh within period of limitation prescribed in law. Still further, delay is liable to be condoned for yet another reason that impugned order in both cross appeals is same.
3. Factual matrix is that complainant was allottee of Flat No. 279 under scheme for allotment of flat for serving/Ex-Defence and Para-Military Personnel of Haryana upto the rank of JCO & equivalent and their widows or orphans on Hire Purchase Basis vide allotment Letter bearing Memo No. HBH/CRO(PM)/Defence/2015/6281 dated 31.03.2015. Total sale consideration was Rs.17,90,000/-. Complainant deposited Rs.1,79,000/- on 28.06.2014. As per demand of OPs made in allotment letter; complainant deposited Rs.3,08,500/- (15% of advertised cost) vide demand draft No. 827693 dated 31.03.2015. Complainant many times visited the site i.e. Sector-65, Faridabad but every time he found that construction work was not started and on his asking; OPs assured him that construction work would start very soon. On his RTI application dated 02.02.2018, OP No. 2 gave evasive reply that “The actual construction of flats had not yet started because of non-approval of revised zoning plan of the above site by HUDA department, so, expected date of commencement of construction could not be given”. Complainant requested OPs to return his amount of Rs.4,87,50/- along with interest but OPs always delayed the matter, on one pretext to other, and did not release the amount. On these allegations, complaint has been filed for issuing direction to OPs to return deposited amount of Rs.4,87,500/- with interest @ 24% p.a. from the dates of deposit i.e. 28.06.2014 to 31.03.2015 till its actual final realization; to pay Rs.10,000/- for expenses spent on telephonic call and personal visits; to pay complainant compensation of Rs.2,00,000/- towards damages for suffering mental agony, harassment etc. and Rs.35,000 /- as litigation expenses.
4. OPs raised contest. In written statement; it is asserted that Forum has no territorial jurisdiction to try the complaint, no cause of action has arisen within territorial jurisdiction of forum. Execution of agreement and payment of subsequent installment have happened, beyond the territorial jurisdiction of forum. Complainant does not fall under the definition of Section 2 (1) (d) of Consumer Protection Act. It is pleaded that OP was allotted land measuring 7.66 acres vide Estate Officer, HSVP, Faridabad Memo No. 12641-43 dated 19.06.2014 in Sector 65, Faridabad for construction of multi-storyed flats in Faridabad. Possession of land was handed over by Estate Officer, HSVP, Faridabad vide Memo No. 1169 dated 24.04.2014. At the time of possession, there was Gas Godown building on said land, which was pointed out to HSVP Authority to which they replied that it shall be dismantled and removed and site shall be free from all encumbrances. On 11.07.2014 godown was demolished by HSVP and 80% of ‘malba’ was removed from site. It was assured by Junior Engineer of HSVP that rest of malba will be removed from site within two days, which was not removed. Bharat Gas Godown went to Hon’ble High Court against demolition by HSVP through CWP No. 10037 of 2014. Hon’ble High Court, on 14.07.2014 granted stay to maintain ‘status quo’ by both parties. Hon’ble High Court issued interim order dated 07.10.2015 giving liberty to petitioner to file representation before appropriate authority within two months, while maintaining ‘status quo’ between the parties. Matter is still sub-judice. Executive Engineer HBH Faridabad vide letter No. 5347 dated 05.12.2016 asked Estate Officer HSVP Faridabad for an early settlement. Again Executive Engineer HBH Faridabad vide letter No. 5384 dated 09.12.2016 addressed to Senior Town Planner Faridabad requested for revised zoning of Group Housing Site. Again Executive Engineer HBH Faridabad requested Administrator HSVP Faridabad vide letter No. 1752 dated 18.04.2017 to give revised possession of Group Housing Land measuring 7.66 acre in Sector 65 Faridabad, after division of land in two pockets viz. GH-1 and GH-2 and leaving the disputed/stayed land approx. 1000 sq. yard encroached by M/s Bharat Gas Godown. ATP Housing Board Haryana-Panchkula vide letter No. 2355 dated 17.04.2017 addressed to Executive Engineer HBH Faridabad had intimated that competent authority of Housing Board has accorded approval to give consent regarding revised possession of clear undisputed land in two pockets. Administrator HSVP Faridabad vide letter No. 3480 dated 12.05.2017, addressed to Chief Administrator, HSVP (Town Planning Wing) Panchkula sent zoning plans of two pockets set as GH site No. 1 and GH Site No. 2 for final decision from competent authority. From 12.05.2017 case for approval of revised zoning plan was lying with Chief Administrator, HSVP, Panchkula. Now HSVP department has only approved revised zoning plan vide letter No. 140660 dated 12.07.2018 but not got stay vacated from Hon’ble High Court. It is pleaded that office of HSVP Faridabad is completely helpless to start construction work, until above formalities are completed by HSVP. There is no deficiency in service on the part of OPs. On merits the averments in the complaint has been denied.
5. Parties to this lis led evidence; oral as well documentary.
6. On critically analyzing the same, learned District Consumer Commission-Faridabad vide order dated 02.04.2019 by allowing the complaint, directed OPs to pay Rs.4,87,500/- with 5.5% interest from the date, last deposit was made.
7. Aforesaid order (02.04.2019) has been questioned separately by complainant-Sarjit Singh as well as by Haryana Housing Board through two separate appeals as detailed above.
8. I have heard learned counsel appearing for Haryana Housing Board in both appeals. Nobody has represented Sarbit Singh in both appeals. However, written submissions has been filed by complainant in the Registry of this Commission on 15.03.2023.
9. In the written submission filed by Complainant-Sarjit Singh; it is mentioned that complainant was a successful allottee. He had deposited Rs.1,79,000/- while making application for a flat being an ex-serviceman. He was issued allotment letter dated 31.03.2015 with the direction to deposit 15% amount (Rs.3,08,500/-) which he had deposited. OPs have failed to deliver possession of built-up flat to him which amounted to unfair trade practice. It is further mentioned that OPs have accepted their failure to provide built up flats to flat buyers and posted letter on its website www.hbh.nic.in No. HBH/CRO/(PM)/2023/180-194 dated 13.02.2023 on subject: scraping of various defence and other scheme launched by Housing Board Haryana and scrap or withdrawal of scheme launched by them for defence personnel in Sector 65 Faridabad especially. It is mentioned that complainant has borrowed the amount from bank at 11.75% interest p.a., so direction be made to Housing Board Haryana to refund the amount deposited by him with 18% interest.
10. Learned proxy counsel appearing for Housing Board Haryana has urged that its project of Housing Board Haryana has got stalled for no fault on its part. Instead, as per contention, the facts stated in written statement project that Housing Board Haryana has been earnestly endeavoring to keep its project alive. Hence, as per contention, there was no deficiency in their service and the impugned order dated 02.04.2019 to refund Rs.4,87,000/- along with 5.5% interest from the date of last deposit is erroneous. It is contended that the Forum has no pecuniary jurisdiction to decide the case as value of claim plus compensation plus interest claim @18% p.a. would exceed Rs.20.00 lacs. On these submissions, learned counsel has urged for acceptance of the appeal filed by Housing Board, Haryana.
11. It is admitted that complainant had applied for a flat in Sector-65, Faridabad, under Ex-serviceman/defence category in Housing Board, Faridabad by making application along with draft of Rs.1,79,000/- in response to publication made by OPs/Housing Board. It is also admitted that he was a successful allottee and allotment letter dated 31.03.2015 was issued to him. It is also admitted that in response to the command of Housing Board, Faridabad; complainant further deposited Rs.3,08,500/- on 31.03.2015. Meaning thereby Rs.4,87,500/- has been deposited by him.
12. Undisputedly, possession of flat has not been offered to complainant so far. Much less than that, it is admitted phenomena by OPs that even construction of flat at site has not been began. The text of written version furnished by OPs only reflect inter-se communication between Haryana, Housing Board, Faridabad, HSVP Faridabad and related communication to their respective higher authorities, by these two governing bodies. These communications have absolutely no bearing to the cause of complainant and neither the complainant has any concern with these inter-se communications. The end result of these communications, as it is so visible from phraseology of written version of OPs is that complainant is a sufferer, for no fault on his part. Housing Board Haryana has failed in its obligation to offer possession of flat to complainant. Complainant cannot be made to wait for an endless, indefinite time for obtaining possession of flat. Project in question floated by Housing Board Haryana has not yet seen its day’s light, in practical sense. There is an express averment in para vii of written version filed by OPs that office of Haryana Housing Board is helpless to start construction. Nothing can be more vulnerable than this, so far as, complainant is concerned. This quality averment would obviously seal the fate of Haryana Housing Board, as it cannot be allowed to function in a manner, which is totally prejudicial and detrimental to the cause of complainant, despite Haryana Housing Board, having already received an amount of Rs.4,87,500/- from complainant. This Commission is firm opinion that learned District Commission has rightly issued direction to refund the amount of Rs.4,87,500/-. However, this Commission is of the opinion that award of interest (5.5%) from the date of last deposit, to complainant on refund of this amount of Rs.4,87,500/- is inadequate and on the lower side and same deserves modification. Haryana Housing Board, Faridabad has enriched itself at the cost of complainant. Haryana Housing Board Faridabad has not acted in an earnest manner. Complainant deposited Rs.1,79,000/- on 28.06.2014 and further deposited Rs.3,08,500/- on 31.03.2015 after being allotted a flat, of which, he did not obtain possession for the reason that construction at site has not started which is really pathetic. Complaint was filed by him on 14.05.2018 and accordingly he has been fighting for his cause. Deposit of amount by complainant had been a continuing process. By adopting rational pragmatic approach to the controversy in hand; this Commission orders that complainant is entitled to refund of Rs.4,87,500/- with interest @ 9% per annum from the date of first deposit of amount by complainant. Haryana Housing Board, Panchkula is directed to comply with above direction within a period of two months from today, failing which, the interest rate on Rs.4,87,500/- would escalate to 12% p.a. With this observations appeal filed by complainant-Sarjit Singh is disposed off, being partly allowed.
13. With regard to cross appeal filed by Haryana Housing Board; the only poser before this Commission is with regard to pecuniary jurisdiction of learned District Consumer Commission-Faridabad. Contention on behalf of learned counsel is that value of claim plus compensation including interest claimed thereon (@24% p.a.) plus litigation expenses exceeds Rs.20,00,000/- and hence forum cannot adjudicate the complaint. This contention has no substance. In case titled as “Harshad Chiman Lal Modi versus DLF Universal and another” AIR 2005 SC 4446 the Hon’ble Apex Court has observed as under:-
“So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage.”
In complaint case No.833 of 2020 titled as “M/s Pyaridevi Chabiraj Steels Pvt. Ltd. versus National Insurance Company Ltd.& Ors.” decided on 28.08.2020, Hon’ble National Commission has observed as under in para 10 of its judgment:-
“10. From a reading of the aforesaid provisions, it is amply clear that for determining the pecuniary jurisdiction of the District Commission, State Commission or National Commission the value of the goods or services paid as consideration alone has to be taken, and not the value of the goods or services purchased/taken. Therefore, we are of the view that the provision of Section 58(1) (a) (i) of the Act 2019 are very clear and does not call for any two interpretations.” In that case; consideration actually paid by complainant i.e.Rs.4,43,562/- was taken as criteria for deciding the contention qua pecuniary jurisdiction so urged before Hon’ble National Consumer Commission.
14. Above observation of Hon’ble National Commission has formed a formable and acceptable base to negate the contention of learned counsel for Haryana Housing Board/appellants centered on lack of pecuniary jurisdiction of learned District Consumer Commission. In present case; admittedly Haryana Housing Board/appellants could not start the construction at site. In complaint, the consumer/complainant/Sarjit Singh has confined his principal relief to refund of Rs.4,87,500/- actually paid by him to Haryana Housing Board/appellants with interest @24% p.a. in relation to flat which was booked by him; allotted to him but Haryana Housing Board/appellants having not given him the possession of flat, because construction at site has not been started by it. In wake of above facts, learned District Consumer Commission has pecuniary jurisdiction vested in it to try the complaint and eventually deciding it vide order dated 02.04.2019. Impugned order dated 02.04.2019 has legal sanctity attached to it. More so, objection regarding pecuniary jurisdiction has not been taken by Haryana Housing Board/appellants anywhere in its written version so filed before learned District Commission. It cannot be allowed to raise this issue now in appeal filed by it, on misconceived notions and whimsical submission. Consequently, this contention of learned counsel for Haryana Housing Board stood repealed. As a sequel thereto appeal filed by Haryana Housing Board/appellants carry no substance/merit. It is accordingly dismissed.
15. In view of observations it is concluded that appeal (FA No. 893 of 2019) filed by complainant-Sarjit Singh is partly allowed and impugned order dated 02.04.2019 is modified to the extent that complainant is entitled to refund of Rs.4,87,500/- with interest @ 9% per annum from the date of first deposit of amount by complainant. Haryana Housing Board, Panchkula is directed to comply with above direction within a period of two months from today failing which the interest rate on Rs.4,87,500/- would escalate to 12% p.a. Simultaneously, First Appeal No. 252 of 2020 filed by Haryana, Housing Board is dismissed.
16. Statutory amount of Rs.25,000/- deposited by appellant at the time of filing of appeal No. 252 of 2020 be refunded to it (Haryana Housing Board), after due identification and verification as per rules and on expiry of period meant for further appeal /revision, if any.
17. Application(s) pending, if any in both appeals stand disposed of in terms of the aforesaid judgment.
18. Original copy of this judgment be attached with First Appeal No. 893 of 2019 and certified copy thereof be attached with First Appeal No. 252 of 2020.
19. Copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
20. Files of both appeals be consigned to record room.
Date of pronouncement: 28th June, 2023
Naresh Katyal
Judicial Member
Addl. Bench-II
