STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                        UNION TERRITORY, CHANDIGARH

Chandigarh Housing Board, Sector 9, Chandigarh through its Secretary.

                                                                .…Appellant

                                Vs.

1.     Naresh Kumar Gupta son of Sh.V.P.Gupta r/o H.No.132, Sector 19-A, Chandigarh.

                                                                …. Respondent 

2.     Silverton Cooperative House Building Society Ltd., through its President, SCO No.21, Sector 18-C, Chandigarh.

3.     Chandigarh Administration, Chandigarh through its Finance Secretary, Chandigarh Administration

4.     The Registrar Cooperative Societies, UT, Chandigarh.

BEFORE: JUSTICE SHAM SUNDER,        PRESIDENT

                MRS. NEENA SANDHU,    MEMBER

Present:   Sh.K.K.Gupta, Advocate for the Appellant.

Sh.S.S.Khetarpal, Advocate for the Respondent No.1.

(Service of Respondent Nos.2 to 4 was dispensed with vide order dated 17.03.2011 being proforma respondents).

                                        ---

MRS. NEENA SANDHU, MEMBER

                        This is an appeal filed by the appellant/opposite party No.1 against the order dated 06.12.2007 passed by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as District Forum only) in complaint case No. 588 of 2007 vide which, it allowed the complaint and directed OPs No.1 and 2  as under:-

“In view of the above discussion, we are of the opinion that the present complaint must succeed. The same is accordingly allowed. The OPs No. 1 & 2 are directed to refund the amount of Rs.21,300/- to the Complainant within 30 days from the receipt of the copy of the order, along with Rs.2000/- as costs of litigation. If the amount is not paid within the aforesaid period, the OPs would be liable to pay the same, along with penal interest @12% per annum with effect from the date of its deposit i.e. 22.06.1999, till realization. The complaint stands disposed of in aforesaid terms”.    

2.             The facts, in brief, are that, the complainant was enrolled as Member of Silverton Coop. House Building Society Ltd. vide enrolment number was 575. It was stated that in accordance with the Scheme framed by OP No.3, issued vide notification dated 28.5.1991 (Annexure C-1), the eligible societies were required to pay 25% of premium of land as earnest money and the premium of land was fixed at Rs.750/- per sq. yard. It was further stated that the said Scheme was challenged by some of the Cooperative House Building Societies in the Hon’ble Punjab and Haryana High Court, by way of Civil Writ Petition No. 1454 of 1992. It was further stated that the complainant deposited a sum of Rs.9200/- for ‘B’ category flat with the Estate Officer, U.T. Chandigarh through the Society vide Cheque No. 200003846, dated 25.5.1992, as per interim order dated 11.5.1992, passed by Hon’ble High Court, in the aforesaid Civil Writ Petition. It was further stated that the Estate Officer, U.T. Chandigarh, after retaining the cheque, for more than 6 years, returned the same, to the Liquidator of the Society. After withdrawal of the orders of liquidation, the cheque was returned to the Society in July, 1999. It was further stated that in February 1999, the Chandigarh Housing Board directed the Society to deposit 25% of the premium of land along with 18% interest, which the Society demanded from the Members vide letter dated 8.3.1999 (Annexure C-2). In compliance with the demand, the complainant deposited Rs.47,230/-, which included interest of Rs.21,300/- vide DD No. 377166, dated 22.6.99 with the Society, which, in turn, deposited the same with OP No.1. It was further stated that the complainant waited for allotment of flat from June, 1999 to 21.4.2005, but OP No.1, failed to allot any land to the Society for construction of dwelling units/flats for the members. Ultimately, on 21.4.2005, the complainant approached the Society for refund of Rs.47,230/- due to financial crisis, and requested to forward his request to the quarters concerned. It was further stated that the letter was forwarded by the Society to OP No.1, which vide its letter dated 4.5.2006 sent Cheque No. 087508 for Rs.3,42,260/- on account of refund of 10 members of the Society, which included the complainant also. It was further stated that a glance of the list clearly showed that, in case of the complainant, the total amount deposited was Rs.47,230/-, but only Rs.25,930/- were refunded and Rs.21,300/- were retained. It was further stated that the Society, in turn, refunded the amount of Rs.25,930/- to the complainant, in May, 2006. It was further stated that aggrieved by the illegal retention of Rs.21,300/- by OP No.1, the complainant approached it through Society vide letters dated 3.10.2006, 20.11.2006, 25.1.2006 and 15.2.2007 to refund the interest amount retained by it, illegally. It was further stated that OP No.1 informed the complainant vide letter dated 2.3.2007 that refund of earnest money amounting to Rs.47,230/- after deducting the interest amount of Rs.21,300/-, alongwith other members had already been sent to the Society, vide cheque No.87508, dated 4.5.2006. It was further stated that thereafter the complainant again requested the Board vide notices dated 12.3.2007 and 16.5.2007 to reconsider the matter and refund Rs.21,300/- illegally retained by it, but to no avail. It was further stated that the OPs were deficient, in rendering service, as also, indulged into unfair trade practice.  When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed.

3.             In their written reply, the appellant/OP No.1 admitted the factual matrix of the case. However, it was stated that it was only the earnest money, which was to be refunded and the interest charged, on the delayed payment of earnest money, was not to be refunded, and, therefore, only the earnest money amounting to Rs.25,930/- qua the complainant was refunded through the Society vide letter dated 04.05.2006. It was further stated that the Society, on behalf of the complainant, asked for refund of the interest earlier charged, on the delayed payment of earnest money, as well, but its request was declined by the Board, in view of the instructions issued by the Chandigarh Administration, for which it had nothing to do, being only the Nodal Agency for implementation of the Scheme of Chandigarh Administration. All other allegations of the complainant, were denied. It was further stated that OP No.1 was neither deficient, in rendering service, nor indulged into unfair trade practice.

4.             OP No.2, was proceeded against exparte, vide order dated 11.09.2007.

5.             In their joint written statement, OPs No.3 and 4 took preliminary objections that the complaint was not maintainable before this Forum; and that fixation of price of land was purely an administrative matter and the District Forum had no jurisdiction to decide the same. On merits, the factual matrix of the case was not denied. It was stated that, as alleged by the complainant, the amount had been deposited with the Estate Officer, U.T., Chandigarh,who had not been impleaded as a party to the complaint. It was further stated that OP Nos.3 and 4, were neither deficient, in rendering service, nor indulged into unfair trade practice.

6.             The Parties led evidence, in support of their case.

7.             After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum, allowed the complaint, in the manner, referred to, in the opening para of the instant order. 

8.             Feeling aggrieved, the instant appeal, has been filed by appellant/OP No.1.

9.             We have heard the Counsel for the  parties and, have gone through the evidence and record of the case, carefully. 

10.           The Counsel for the appellant/OP No.1 submitted that the complaint was allowed by the District Forum by relying upon the decision of the Hon'ble National Consumer Disputes Redressal Commission, New Delhi passed in Revision Petition No.734 of 2004 titled as Chandigarh Housing Board Vs. Col. Avtar Singh, the operation of which was stayed by the Hon'ble Apex Court. It was further submitted that the District Forum wrongly placed reliance upon clause Nos.7  and 15 of the instructions issued by the Chandigarh Administration on 09.03.2002 inspite of the fact, that the said clauses had no relevance, in the present case, as there was no dispute between the parties with regard to the refund of the earnest money, which was already refunded.  It was further submitted that the dispute was only with regard to non-payment of interest paid, by the respondent/complainant, on the delayed payment of part of the earnest money, which was not required to be refunded, in terms of Clause 11 of the instructions dated 09.03.2000. It was further submitted that the order of the District Forum, being illegal, is liable to be set aside.

11.           The Counsel for the respondent/complainant, on the other hand, submitted that the order passed by the District Forum is perfectly legal in view of the order passed by the Hon'ble National Consumer Disputes Redressal Commission in Revision Petition No.734 of 2004 titled as Chandigarh Housing Board Vs. Avtar Singh and Others, which was upheld by the Hon’ble Supreme Court and, therefore,  the same is liable to be upheld.

12.           The Hon’ble National Consumer Disputes Redressal Commission in Revision Petition No.734 of 2004 titled as Chandigarh Housing Board Versus Avtar Singh decided on 12.07.2007 held that para 11 of the Scheme of 1991 and the Rules of 1973 do not vest the Housing Board with a right to forfeit the interest, paid by the members. Admittedly, the aforesaid order of the Hon’ble National Commission has since been upheld by the Hon’ble Supreme Court vide order dated 22.09.2010, passed in Civil Appeal No.8203 of 2010 (arising out of SLP (C) No.21740 of 2007). This case is squarely covered by the decision rendered by the Hon’ble Supreme Court, in the aforesaid case. The District Forum was, thus, right in accepting the complaint.  In this view of the matter, the submission of the Counsel for the appellant being without merit, must fail, and the same is rejected.

13.           The order of the District Forum, does not suffer from any illegality or perversity, warranting the interference of this Commission.

14.           For the reasons recorded above, the appeal,  being devoid of merit, must fail and the same is dismissed with no order as to costs.

15.           Certified Copies of this order be sent to the parties, free of charge.

16.           The file be consigned to Record Room, after completion.

Pronounced.                                                                                      Sd/-

12^th    December, 2011                          [JUSTICE SHAM SUNDER]

                                                                                 PRESIDENT         

                                                                                                            Sd/-                                  [NEENA SANDHU]

                                                                                                MEMBER

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