26.08.2016
MR. UTPAL KUMAR BHATTACHARYA, HON’BLE MEMBER.
Instant Appeal under Section 15 of the Consumer Protection Act, 1986 has been filed by the Appellants/O.Ps challenging the impugned judgment and order dated 04.08.2014 passed by the Ld. District Forum, Burdwan in DF Case No. 47 of 2011 allowing the complaint on contest against the Appellants/O.Ps with the directions as under :-
“that the application U/s 12 of the C. P. Act is allowed on contest against the O.Ps. The O.Ps are directed to provide boundary wall of complainant’s unit with a height of 5 feet instead of 2 feet 6 inch. The main outside door have to be provided, made of teakwood. The electric connection and water supply should be arranged as well as completion certificate within 45 days from the date of order, in default 9% interest will carry on total amount of Rs.7,05,000/- (total consideration money paid by the complainant) from the date of order to till its completion. The O.P.s are directed to pay compensation of Rs.20,000/- for mental harassment and agony along with litigation cost of Rs.1000/- to the complainant within 45 days from this date of order. it may be mentioned here that after completion of above-mentioned directions the complainant have to take physical possession of his unit within seven days from the completion in toto. It is also mentioned here if the O.P. fails to comply the directions made in above then complainant is at liberty to execute the order through this Ld. Forum”.
The facts of the case, in a nutshell, are that the Respondent/Complainant applied for purchasing a flat in Group Housing Scheme of Indian Railway Welfare Association (I.R.W.O.), the Appellants/O.Ps, at Rail Bihar, Asansol project. The flat of an approximate cost of Rs.4,75,000/- was accordingly booked and such booking was duly conveyed to the Respondent/Complainant by the Appellants/O.Ps vide letter No. IRWO/Asansol/LT/000027/1 dated 11.05.2005/25.05.2005 of the General Manager (EZ), IRWO, Annexure – I, running page 110.
The flat value, however, was raised first to Rs.6,65,000/- and then to Rs.7,05,000/- due to escalation of price with the passage of time. The Respondent/Complainant paid the entire amount of enhanced consideration of Rs.7,05,000/- but the flat was not completed in conformity with the plan sanctioned. There were allegedly incomplete construction or deviation from the sanctioned plan particularly, in respect of construction of boundary wall, supply of electricity and water, installation of main outside door made of teak wood. The completion certificate was also not provided to the Respondent/Complainant by the Appellants/O.Ps.
In the year 2008, the cost of booked flat was further enhanced to Rs.8,21,000/- as calculated by the Appellants/O.Ps. As it appears from the impugned judgment and order, there being availability of flat, one room less than that booked, at a cost of Rs.7,05,000/-, the Respondent/Complainant consented to purchase a flat of one room less and accordingly he had to pay a further charge of Rs.7,374/- only for the land allotted in excess in his favour because of his changed option.
The possession of the flat, however, was not taken by the Respondent/Complainant as the Appellants/O.Ps failed to complete the unfinished jobs in spite of communications made to him by the Respondent/Complainant to that effect through his letter dated 16.02.2011 and 07.03.2011. The aggrieved Respondent/Complainant then filed the complaint case with the prayer for payment of interest on the paid amount, cost and compensation. The impugned judgment and order arises out of the said complaint case.
Heard the Ld. Advocates appearing on behalf of both sides.
The Ld. Advocate appearing on behalf of the Appellants/O.Ps submitted that the unfinished works pointed out by the Respondent/Complainant were not verified through inspection, nor was there any cogent evidence to establish the fact that the flat in question was really incomplete and beyond habitability.
The Ld. Advocate submitted further that the Ld. District Forum, as it would reveal from the order No. 19 dated 24.12.2012, running page 63, directed the Executive Engineer, Civil, Asansol Sub-Division for supplying the name of a competent civil engineer for carrying out an inspection of the subject flat and for report in order to enable the Ld. District Forum to ascertain as to whether the Appellants/O.Ps performed the work in accordance with the contract or there was any departure or deviation, as alleged. Unfortunately, as the Ld. Advocate continued, the impugned judgment and order was passed without obtaining the report and thus reviewing its own order.
As submitted, the Group Housing Scheme consisted of many members. It was not possible for the Appellants/O.Ps to provide any individual member with any special favour, be it in the form of installation of any door or construction of wall out of specification provided in the contract for the flat in question.
The Ld. Advocate referred to page 6, para 2 of the impugned order wherein the Ld. District Forum, mentioned about a clear avoidance of reply on question No. 23 in the questionnaire relating to the height of the walls by the Appellants/O.Ps and submitted that the Appellants/O.Ps’ honest endeavour of supplying the correct information on verification of record has been adversely misinterpreted. The photographs that the Respondent/Complainant submitted as an evidence of incomplete construction, as contended, were not properly correlated.
It was submitted further that the decision towards non-supply of water connection and electricity was arrived at by the Ld. District Forum at para 1 & 2 of page 7 of the impugned order out of mere assumption which is not permissible in the process of dispensation of justice as possession of the flat cannot be handed over unless the said supplies are ensured.
The Ld. Advocate referred to the decision of the Hon’ble National Commission reported in 2010 (1) CPR 127 (NC) in Revision Petition No. 3371 of 2007 [Karnataka Housing Board and Anr. – vs. – Sri R. Shankar] wherein, while allowing the revision petition, the Hon’ble National Commission was pleased to observe that the activities of the Housing Boards were aimed at providing housing stock to general public on non-profit basis, but that does not mean that the consumer can take such social service institution as a ride.
The Ld. Advocate further referred to the decision of the Hon’ble National Commission in Revision petition No. 622 of 2005, reported in [2006] 2 CPC (NC 159 [Lt. Col. P. K. Kapur (Retd.) – vs. – M. D. Army Welfare Housing Organisation] wherein, while dismissing the Revision Petition, against the order of the State Commission granting Rs.10,000/- as compensation, the Hon’ble National Commission was pleased to observe that the Army Welfare Housing Organisation, a non-profit making Housing Organisation, need not refund the excess money collected from members with any interest, more so when State Commission had granted nominal compensation for delayed refund.
Putting forward the above citations, the Ld. Advocate contended that the Respondent/Complainant, with his arbitrary claim, has tried to put a benevolent organization of similar nature in jeopardy and distracted it from its aim for reaching benefit to the target group of people.
The Ld. Advocate contended that the completion certificate cannot be provided individually to the purchasers of flats. It was submitted that the Appellants/O.Ps, in the memo of appeal, prayed primarily for setting aside the impugned judgment and order which affects adversely the interest of I.R.W.O., a no profit no loss organization, but in the present scenario, they prefer the case to be remanded to the Ld. District Forum to hear the same afresh after obtaining the report from the Civil Engineer which was ordered earlier by the Ld. District Forum.
The Ld. Advocate appearing on behalf of the Respondent/Complainant submitted that the Respondent/Complainant is still in service and is not an ex-employee. The Ld. District Forum passed the impugned judgment and order without revoking any order. In fact, the Appellants/O.Ps resorted to unfair trade practice by not making construction and not providing facilities in the lines of the contract and also enhancing the cost of the flat more than once due to escalation of price with the passage of time when the delay in construction happened due to their own lack of initiative. The Respondent/Complainant did not have any lapse as they made the full payment in time.
The side walls of the flat, as the Ld. Advocate contended, was less than the specified height of 5’ as per contract. There was no boundary wall at the back side although the cost of the walls was duly paid. That apart, as the Ld. Advocate contended further, the Appellants/O.Ps did not provide the main door made of teakwood.
The Ld. Advocate submitted that the Ld. District Forum considered the observation of the financing bank in order to arrive at its finding and passed the impugned judgment and order. The Ld. Advocate went on to continue that the Appellants/O.Ps offered the possession of an incomplete flat which the Respondent/Complainant refused to accept and communicated the reasons for his refusal to the Appellants/O.Ps.
The possession was not offered till March, 2011 and then in the month of April, 2011, the complaint was filed. As submitted, the Respondent/Complainant’s initiative for having extension of domestic connection of electricity got frustrated by the Appellants/O.Ps on the ground of pendency of the complaint case in respect of the subject flat.
The Ld. Advocate prayed for the appeal to be dismissed affirming the impugned judgment and order in view of the circumstances narrated above.
Perused the papers on record. It appears from the brochure that there was a provision at page No. 80 (reverse side), note – 2, for enhancement of the project cost due to increase in the cost of land, materials etc. the letter of the Appellants/O.Ps affirming the booking of the dwelling units, communicated to the Respondent/Complainant, running page 110, was also explicit about the project cost being provisional. There may be different reasons for the project being not completed within the scheduled period. Therefore, the increase in the project cost as was agreed upon by the Respondents/Complainants cannot be disputed.
What appears to be inexplicable is the satisfaction of the Ld. District Forum to believe that the jobs, as alleged in the complaint, were either not completed or done with deviation from the terms and conditions of the contract in the absence of the report from the civil engineer which it ordered to be appointed for the purpose.
The report of the financing bank, as it would reveal from the order No. 19 dated 24.12.2012, running page 63 was also considered to be a document to be verified as an additional supportive evidence. Unfortunately, the Ld. District Forum passed the impugned order without obtaining the report of the civil engineer as ordered by the Ld. District Forum and thus reviewing its own order which is not permitted as per settled principle in this matter.
In view of above, we are of the considered view that this is a fit case to be remanded to the Ld. District Forum for passing a reasoned order after obtaining the report of the civil engineer which was ordered by the Ld. District Forum earlier.
Hence, ordered that the instant appeal is allowed and the impugned judgment and order is set aside. The case is sent on remand to the Ld. District Forum with the direction to hear the case afresh on receipt of the report of the civil engineer and pass a reasoned order on ascertaining the real position of the case on the basis of that report as regards completion of construction work as per specification in the contract and also being satisfied as to the habitability of the flat in question. Both parties are directed to appear before the Ld. District Forum on 21.09.2016.
