Date of filing – 11.07.2014

Date of Hearing – 13.04.2017

            The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the instance of the Opposite Parties to impeach the Order no.19 dated 31.03.2014  passed by the Ld. District Consumer Disputes Redressal Forum, Siliguri (for short, Ld. District Forum) in Consumer Complaint no.13/2013.  By the impugned order, the Ld. District Forum allowed the consumer complaint lodged by the respondent Smt. Kalpana Bidyanada under Section 12 of the Act with the directions upon the appellants to pay to the respondent/complainant a sum of Rs.4,000/- per month being rent, a sum of Rs.16,000/- per month being interest she pays on the bank loan, litigation cost of Rs.500/- etc.

          The respondent herein being Complainant initiated the complaint asserting that on 19.03.2011 she has applied to purchase of a flat at Himalaya Kanya Abasan, Eastern Bye-Pass Road, Siliguri and deposited Rs.1,00,000/- as application money.  A lottery was conducted by the West Bengal Housing Board (WBHB) and the complainant was successful and one flat was provisionally allotted in favour of her being HIG Flat, Type-‘B2/7’, at Himalaya Kanya Housing Project, Phase-III on 19.07.2011.  The complainant has submitted that he has paid the entire consideration amount of Rs.16,00,000/- but the flat was not handed over to her within the stipulated period and in this regard all her correspondences and persuasions went in vain.  The complainant submits that she is putting in a rented flat and paying Rs.4,000/- per month as rent as well as incurring loss of Rs.16,000/- per month on account of interest of bank loan of Rs.16,00,000/-.  Hence, the respondent approached the Ld. District Forum with prayer for certain reliefs, viz. – (a) to direct the OP to pay her Rs.20,000/- per month w.e.f. August, 2011 till the flat allotted to her; (b) to pay Rs.30,000/- for shifting the higher accommodation etc. 

          The opposite parties filed written version but the Ld. District Forum did not consider the same as they did not appear on the date of hearing.  Ultimately, by the impugned order, the Ld. District Forum allowed the complaint ex parte with certain directions upon the opposite parties.  Challenging the said order, the opposite parties have come in this Commission with the present appeal.

          I have scrutinised the materials on record and considered the submission advanced by Mr. Prasanta Banerjee, Ld. Advocate for the Appellants.  The respondent did not take any step and as such under compulsion the appeal was heard in absence of the respondent.

          Upon hearing the Ld. Advocate for the appellant and on going through the materials on record, it would reveal that the respondent had applied for a flat at Himalaya Kanya Housing Project, Phase-III, Siliguri.  It also remains undisputed that by a lottery, the respondent has come out successful and one flat being HIG Flat, Type-B2/7 has been allotted in favour of her on 19.07.2011.  The materials on record further goes to show that out of the provisional sale price of Rs.14,54,000/- mentioned in the provisional allotment of flat, the respondent has paid so far Rs.14,17,650/- to WBHB availing of cash rebate of 2.5% on the provisional sale price.  Again out of provisional price of Rs.1,50,000/- for car parking space allotted to the respondent, the respondent has paid Rs.1,50,000/-. 

          In any case, from the contents of the petition of complaint, it would reveal that on 05.11.2012 the Assistant Director of CA&FBP, Siliguri had a telephone conversation with Assistant Housing Commissioner –II, Kolkata, who told him that allottees must form a cooperative society/apartment owners’ association first and then only flats/common areas could be handed over to them.  Since there are 81 flats and only 34 flats or units have been sold by WBHB, the flat in question cannot be handed over.

          The Ld. District Forum has passed the order simply on the basis of claim of the respondent that she has been living in a rented accommodation for which she has to pay Rs.4,000/- per month as rent and further she claimed Rs.16,000/- per month i.e. interest incurred by her for obtaining loan from the bank.

          Needless to say, the parties are bound by the terms of agreement.  On going through the allotment letter or terms and conditions, I do not find any clause that for failure on the part of the WBHB to handover the flat, they will have to bear the interests for the purpose of loan obtaining from bank or the house rent to be incurred by the allottees for their stay in rented accommodation.  In order to obtain a relief under the provisions of the Act, it has to be proved that there was deficiency in services on the part of the appellant.  Admittedly, the respondent is a ‘consumer’ under the appellants but in order to obtain a relief under the provisions of the Act, it has to be established that there was deficiency on the part of the appellants as per definition of Section 2(1)(g) of the Act which is reproduces below –

          “deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner or performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service”.

          The Ld. District Forum has not mentioned the reason on the basis of what the house rent of Rs. 4000/- p.m. and interest of Rs. 16,000/- p.m. has been passed. In the brochure it has been mentioned that all the flats including common area and facilities of the said project are expected to be completed within August, 2011unless held up by unforeseen and force majeure circumstances beyond the control of the WBHB. It does not necessarily mean that the appellants were under obligation to hand over the flats  /units by August, 2011. The materials on record goes to show out of   81 flats on  34 flats were sold out  at the relevant time and unless  50% of the total allottees are purchased the flats and formed an Association , it would not be possible to hand over the flats /units and for that no liability should be attributed upon the appellants.

          Therefore, after giving due consideration to the submission advanced by the Ld. Advocate for the appellants and on scrutiny of the  materials on record, I am not in agreement with the Ld. District Forum in passing the order in favour of the respondent. In other words, as there was no deficiency on the part of the appellants, the Ld. District Forum should have dismissed the complaint.

          For the reasons aforesaid, the appeal is allowed ex parte and stands disposed of without any order as to costs.

          The impugned order is hereby set aside.

          Resultantly ,  the CC/13 /S/13 stands dismissed.

          The Registrar of the Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Siliguri for information.