C.D.12 OF 2005,C.D.13/2005,C.D.15/2005

          C.D.16/2005,C.D.17/2005 and C.D.19/2005

             Heard learned counsel for the parties. All above complaint cases having similar issue are taken up by passing this common order.               These complaints are filed U/S-17 of erstwhile Consumer Protection Act,1986(Here-in-after  after called the Act).

FACTS:-

2.             The concepts of case of the complainant is that the complainants were occupying the land at Nala Road. The District authorities of Sundargarh, Rourkella Development Authority and the SAIL in order to safeguard the lives of the complainants approached the complainants to rehabilitate   them in pucca houses under Jawahar Nagar Housing Scheme, Nala Road which is affordable by them. On the otherhand, they proposed to allot above pucca house flats equivalent to the area occupied at Nala Road after being evacuated from the previous place on payment of reasonable price.  OP promised to provide road, electricity, sewerage, community centre etc. in the flats.

3.          It is alleged inter-alia by complainants that in 1989 the brochure was issued by the OP comprising of three kinds of houses LIG-I, LIG-II & MIG-I with different plinth areas and the cost of the house.  The complainants applied for the allotment of LIG-I, LIG-II. In 1995 the category of the house was changed from LIG-II to MIG in Jawahar Nagar Housing Scheme, Nala Road, Rourkela. Ops have informed the complainants that they have obtained loan from HUDCO for construction of flats and complainants would also be party to the loan incurred by OPs so that cost of flats would be paid on installment basis.   The complainants were instructed to deposit the initial cost and they were allotted flats  in different blocks in 1997 on deposit of initial costs and  delivery possession of the houses were made to the  complainants.

4.            The complainants alleged that after taking possession they found the flats are not complete as per specification in the brochure. They have found that plinth area is short and safety tanks are not constructed and there was no any sewerage. Thus, they complained that basic amenities were not provided to the complainants by the OP. Further, they found that the doors and windows are not of good quality. Due to lack of such basic amenities, the delivery possession of flats by the OP is deficiency in service on the part of the OP. However, the complainant spent money from their pockets and got them repaired. On 10.07.2004 the complainants were asked to deposit penal interest with extra amount.

5.            The complainants alleged inter-alia that on one hand the plinth area has been reduced and in otherhand basic amenities are not provided. Further Ops have allegedly escalated rate of installment for non-payment of installments on time.  The complainants made a joint representation to the OP for not to force for payment of escalated rate of interest. Since the requests were turned down, the complainants filed the complaint.

6.           The OPs     filed written version stating that the consumer complaints are not maintainable and same are barred by limitation. The OPs refuted the allegations. According to the OPs, the complainants were unauthorizedly occupying    of land of Govt. and in order to rehabilitate them had prepared a scheme at Nala road. They admitted to have allotted   flats to complainants but due to want of money they could not construct with   basic amenities in the flats and for that they have borrowed money from HUDCO.  Therefore, the allocation of the flat was introduced with instruction to enhance the cost of flat if necessary and accordingly the houses were allotted to the respective complainants.  However, the OPs also averred that all   flats were allotted and delivered. Complainants in to C.D.15/2005,C.D.16/2005,C.D.17/2005 but flats are not delivered to complainants in C.D.12/2005,C.D.13/2005 and C.D.19/2005 with basic amenities. The story of the complainants should not be accepted. Therefore, they submit that there is no deficiency in service on their part. They have also submitted that there is no cause of action to file the case.

ISSUES

7.                     The main issues  raised  in this case are  as follows:-

(1)                   Whether the complainants have proved deficiency in service on the part of the OP.

(2)                   The complaint case is maintainable and they are entitled to any relief as asked for.

ANALYSIS

8.               Before going ahead, we must place on record that a similar matter have been already disposed of by this Commission in C.D.A.230 of 2002 and other appeals.  The respective parties have filed the written note of submission. The onus lies on the complainants to prove the deficiency in service on the part of the OPs.

ISSUE NO.1

9.                 Both the parties admitted that there was a project floated by OP under Jawahar Nagar Housing Scheme.  It is admitted fact that the complainants  are residing  on  Govt. lands under Rourkella Development Authority.

10.             It is not in dispute that under Rehabilitation scheme District Administration in Sundargarh with  Rourkella Development Authority asked the complainants to vacate the Govt. land   on assurance to give  respective proportionate  of land with respective flats  to be  constructed under the said scheme. It is admitted fact that the Rourkella Development Authority, in order to construct the house have made request to HUDCO to finance. Now the question arises whether the complainants have proved that they were allotted the house having not confirmed to the basic amenities available therein.

11.          It is admitted fact that houses of LIG and MIG were allotted to the complainants and complainants in C.D.15/2005,C.D.16/2005 and C.D.17/2005 took possession of the respective houses, of course the OPs have constructed the houses by incurring loan from the HUDCO who was coped in by the OPs to provide finance. The complainants only stated   in the complaints that the cost of the houses has been increased from time to time. The complainants also alleged that in the brochure it has been mentioned that the houses would be provided with electricity, water, sewerage tank and all the basic amenities. The complainants in their complaint have clearly stated that they have approached the OP showing their lack of amenities on different occasion but they have not been provided with basic amenities. The complainants have stated that in para-11 of the complaint which is as follows:-

a. The toilet is incompleted.

b. The no. electrical wiring.

c. Doors & Windows are bent and the frame is not

    properly cemented.

d. Inside windows are not getting locked.

e. There is no water connection

f. There is no connection from Toilet pan to sewerage

g. Complete floor and roof is pock marked.

h. Improper workman ship in the flooring.

i. The low quality cement is used.

j. The plinth area of the house is around 210 sqft. In lieu of 300 sqft. To which the complainants are entitled.

12.     The complainants have already spent some money towards repairing of the house which are also mentioned in the complaints itself.

13.         The OPs have taken plea that the complainants have  not paid installments  regularly as per payment  schedule  and when there is already agreement  to show  that they would be liable  by  the consequence  of breach of agreement because  the agreement is binding on them. Learned counsel for the Ops submitted that in view of the agreement, the complainants are bound to pay the cost of the houses fixed finally.

14.       In view of  the claim and objection  we are of the view that the brochures when floated  in the market for allotment of house giving amenities, the houses being provided without amenities as promised  is definitely deficiency in service on the part of the OP. If there is at all non-payment of installments, but complainants have been delivered/allotted the flats without basic amenities. No doubt the agreement is binding on both complainants and Ops. The agreement is to be read with the brochures introduced by Ops.  They also contain that the amenities or facilities must be available to them.

15.          We rely  on the decision  of the  Hon’ble Supreme Court  in Wg.Cdr.Arifur Rahaman Khan & Aleya Sultana and Others-Vrs- DLF Southern Homes Pvt.Ltd.  Civil Appeal No.6303/2019 Where Their Lordship have observed that the complainants are entitled to compensation when there is delay in having delivered  possession of the flats long after  two years of date of delivery  fixed in the agreement.  It is also held that the houses should be handed over with all the basic facilities or amenities available.  In such cases Hon’ble Apex also found deficiency in service on developer/builder and thereby directed to pay compensation. In the instant case relying   upon decision of Hon’ble Apex Court since the basic amenities are not available and there is delay in delivery of flats for seven years or even not delivered same complainants in C.D.12/2005,C.D.13/2005,C.D.19/2005, we are of the view that complainants have proved deficiency in service on the part of Ops. Thus, issue is answered accordingly.

ISSUE NO.2

 16.                   In view of finding of the issue no.1. we are of the view that the complainants have proved the deficiency in service on the part of the OP for not providing basic amenities to the complainants while handed over the flats for long after the due, the enhancement of the cost by making complainants to pay same at a time or installment basis is also adding further deficiency in service because the complainants are bound by the terms and conditions under the agreement but not for the loan incurred by the OP from the HUDCO. Taking all such matters into consideration, we are of the view that there is cause of action to file complaint not only for claiming compensation, but also for the cost of litigation. Of course, the agreement being binding, the complainants are bound to pay the cost of the flats as agreed on installment basis to the OP. They should abide by agreement to pay installments to OP. But for that their rights to basic amenities in flats cannot be ignored by OPs.

17.               Learned counsel for the OPs submitted that the cases are barred by limitation because after long 14 years it has been filed. On the otherhand, learned counsel for the complainant opposed this portion stating that the cause of action is continuing  as such because  for  the basic  amenities, no step is taken by the OPs to fulfill same  in-spite of their representations made  as alleged in  complaints.  When the representation has been already submitted from time to time, the cause of action is still continuing and it cannot be said that it is barred by limitation. Hence, in all respect complaint cases are maintainable and entitled to compensation for not deficiency in their services.  Therefore, Issue No.2 is answered accordingly.

CONCLUSION

18.               For the foregoing discussion, we hereby allowed the complaints on contests against the OPs with cost. We hereby direct OPs to pay jointly and severally  Rs.30,000/-  as compensation to each of the complainants payable within 60 days for deficiency in service on their part  failing which each of such   amount will carry 12 % interest from the date of filing of respective complaint cases  till date of actual payment made. The complainants are to pay installments regularly as per the agreement which is still continuing. The option is given to the complainants to pay rest of cost on installments or at a time.  The OPs are further directed to pay Rs.10,000/- towards cost of litigation to each of the complainants.

                   The complaint cases are disposed of accordingly.

                Free copy of the order be supplied to the respective parties or they may download same from the Confonet or Website of this Commission to treat same as copy of order received from this Commission.