Haryana

Panchkula

CC/93/2022

SUJENDER SINGH HOODA. - Complainant(s)

Versus

THE CHIEF REVENUE OFFICER (PM).CHIEF ADMINISTRATOR HOUSING BOARD HARYANA - Opp.Party(s)

SUSHANT GUPTA

20 Oct 2022

ORDER

            BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

 

                                                       

Consumer Complaint No	:	93 of 2022
Date of Institution	:	24.03.2022
Date of Decision	:	20.10.2022

 

 

Sujender Singh Hooda son of Sh. Sher Singh, resident of VPO Kiloi Khas, District Rohtak, Haryana presently residing at Flat No.1107, Ananda Tower, SBP Housing Park, Derabassi, District Mohali-140507

 

                                                                           ….Complainant

Versus

1.     The Chief Revenue Officer(PM), Chief Administrator, Housing     Board Haryana, Plot No.C-15, Awas Bhawan, Sector-6, Panchkula, Haryana.

2.     The Housing Board Haryana, Plot No.C-15, Awas Bhawan, Sector-      6, Panchkula, Haryana through Chief Administrator.                                                                                                                                                                                                                               ….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

 

Before:              Sh.Satpal, President.

                        Dr.Pawan Kumar Saini, Member

Dr.Sushma Garg, Member

 

 

For the Parties:   Sh. Sushant Gupta, Advocate for the complainant.

                        OPs No.1 & 2 already ex-parte vide order dated 30.05.2022.    

ORDER

(Satpal, President)

1.             The brief facts of the present complaint are that the complainant is an ex-defence personnel and he applied for flat under Ex-Defence and Paramilitary person of Haryana under the Housing Board Scheme on 27.06.2014. Under the above said scheme, the OP allotted a flat at Sector-5 Rohtak vide Provisional Registration no.1799/ RTK05/T-A/SBP and Final Registration  no.94  at Sector-5, Panchkula, Haryana vide Allotment/Memo no.HBH/CRO(PM)-Defence/2015/SPL-4587 to the complainant. At the time of allotment, the complainant had deposited a sum of Rs.1,88,000/- as a part payment on 27.06.2014. The Ops had issued a letter memo no.HBH/CRO(PM)-Defence/2015/spl-4587 dated 05.02.2015 to the complainant for submitting the necessary documents along with a demand draft of Rs.2,82,000/- in favour of the Ops. Thereafter, in pursuance of the above said  letter  of the Ops, he had submitted the required documents and demand draft of Rs. 2,82,000/- vide DD No.868559 dated 18.02.2015. It is further stated that the Ops assured the complainant in the year 2014 that the possession of the flat will be given within a period of three years. The complainant had retired from Indian Air Force in April, 2018 and he waited for possession of the above flat till Oct, 2018 but till date, there is no progress regarding the construction of the site and even as the said project has not started till date. After waiting for a long period, when the said project had not started, the complainant sent a letter on 01.10.2018 to the Ops and shown his unwillingness to take the flat allotted to him at Sector-5, Rohtak and prayed for refund of the amount given to the Ops along with interest till date; but the OPs have not given any response or even not bothered to reply the same to the complainant. Subsequently, he had sent another letter dated 28.9.2020 to refund the amount deposited by the complainant with the OPs but the Ops did not pay any heed to the genuine request of the complainant. Thereafter, the complainant has served a legal notice dated 15.11.2021 through post on 16.11.2021 upon the Ops but no reply has been received from the Ops. Due to the act and conduct of the OPs, the complainant has suffered mental agony, harassment and financially; hence, the present complaint.

2.             Notices were issued to the OPs through process server which was duly served and thus, due to non appearance of OPs No.1 & 2, they were proceeded ex-parte by this Commission vide its order dated 30.05.2022.  

3.             To prove the case, the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-12 in evidence and closed the evidence by making a separate statement.

                During the course of arguments, the learned counsel for the complainant has tendered an Affidavit of complainant which is taken on record as Mark ‘A’, for the adjudication of the controversy in a fair and proper manner.

4.             We have heard the ld. counsel for the complainant and gone through the entire record available on the file including written submissions filed by the complainant, minutely and carefully.

5.             Admittedly, the complainant had applied for registration of a residential flat vide application no. 10876 in 2014 under ‘A’ category in the OPs project to be developed at Pinjore, Sector-28. It is also evident that the complainant had made the payment of sum of Rs.1,88,000/- to Ops, which was got financed from State Bank of Patiala, Sector-5, Panchkula qua the registration of said flat. Further, it is also evident that the payment of sum of Rs.2,82,000/- made to OP No.2 vide (Annexure C-4) after the allotment of a flat as conveyed to the complainant vide letter dated 05.02.2015. In the present complaint, refund of the said deposited amount of Rs.4,70,000/- along with interest has been claimed on the ground that the OPs have failed to raise the construction of flats as well as provide the basic amenities in and around the site in question.

6.             During arguments, the learned counsel for the complainant reiterating the averments made in the complaint, has contended that Ops have not taken any step towards the construction of flats as well as the completion of the development works at site and thus, has prayed for acceptance of the complaint by directing the OPs to refund the amount along with interest & compensation as prayed for in the complaint.

7.             The OP No.1 & 2 have preferred not to contest the present complaint by remaining absent despite services of notice and accordingly, they were proceeded ex-parte vide order dated 30.05.2022 respectively and thus, the assertions made by the complainant go unrebutted and uncontroverted.

8.             Undoubtedly, the applications were invited by the OPs for the registration of flat in Multistoried buildings to be constructed at various places of Haryana like Faridabad, Gurgaon, Mahendergarh, Jhajjar, Panchkula, Pinjore, Palwal, Rewari, Sampla, Rohtak and Bawanikhera. As per brochure, the serving/Ex-defence and Para-Military Personnel of Haryana up to the rank of JCOs & equivalent and their widows and orphans were entitled for registration of flat w.e.f. 17.02.2014 to 15.05.2014. As the promise and assurance was made by a statutory body i.e.OP No.1, which is a public sector undertaking, vide brochure qua the construction of flats in multistoried buildings at various places for allotment to army/paramilitary personnel on Hire Purchase Basis, there was no occasion for the applicants including the complainant to entertain any kind of suspicion or doubt about the non fulfillment of the promise made vide brochure. Believing upon the promise made by OPs vide brochure, the complainant was allured to invest in the said project  so as to have a dwelling unit and accordingly,  made the initial payment of Rs.1,88,000/- and thereafter, made the payment of Rs.2,82,000/- and thus, a total sum of Rs.4,70,000/- was paid to the OPs. As per Affidavit of complainant  Mark ‘A’,  the loan amount has been cleared by the complainant and presently a sum of Rs.4,70,000/- is lying deposited with OPs.

9.             Pertinently, a period of about more than seven and a half years has elapsed since making of payment of Rs.1,88,000/- to the OPs qua the price of the flat but the Ops have not been able to construct the flat as promised vide brochure. There is no evidence that the OPs have taken any concrete steps qua the construction of flat at site.

10.            Since the OP No.1 is a statutory body and engaged in the construction of flats/houses etc.,it is necessary to discuss some authoritative judgments delivered by Hon’ble Apex Court, wherein the liability of statutory body/public sector undertaking, engaged in development work like construction of flats, under Consumer Protection Act has been discussed. The Full Bench of Hon’ble Apex Court vide its judgment dated 11.01.2021 in IREO Grace Realtech Pvt. LTD. Vs. Abhishek Khanna and Others reported in (2021) AIR(SC)437: (2021)AIR (SC) Civil 1291 has placed reliance upon the case law titled as Lucknow Development Authority Vs. M.K.Gupta(1994)1 SCC 243, wherein para no.6, it has been as under:-

“As pointed  out earlier  the entire  purpose of widening  the definition is to include  in it  not only day to day buying  and selling activity  undertaken by a common man but even such activities  which are otherwise  not commercial  in nature  yet they partake of a character in which some benefit is conferred  on the consumer. Construction of a house or flat is for the benefit of person for whom it is constructed.  He may do it himself or hire services of a builder or contractor. The latter being for consideration is service as defined in the Act. Similarly when a statutory authority  develops  land or allots  a site or  constructs  a house  of the benefit  of common  man it is as much service  as by a builder  or contractor. The one is contractual service and other statutory service. If the service is defective or it is not what was represented then it would be unfair trade practice as defined in the Act. Any defect in construction activity would be denial of comfort and service to a consumer. When possession of property is not delivered within stipulated period the delay so caused is denial of service. Such  dispute  or claims  are not in respect of immoveable property  as argued  but deficiency  in rendering  of service of particular  standard, quality  or grade. Such deficiencies or omissions are defined in sub-clause(ii) of clause(r ) of Section 2 unfair trade practice”.

11.            The Hon’ble Apex Court vide its celebrated judgment decided on 17.03.2004 in case law titled as Ghaziabad Development Authority Vs. Balbir Singh in Civil Appeal No.7173 of 2002 and connected matters has again placed reliance upon the case law laid down in M.K.Gupta case (supra) as under:-

“However, in the context  of the Consumer Protection Act the principles  laid down  in the case of Lucknow Development  Authority Vs. M.K.Gupta,(1994) 1 SCC 243 have to be kept  in mind. In this case the question was whether a development Authority rendered service to bring it within the purview of the Consumer Protection Act. It has been held that the Development Authority is rendering service. It has been also held as follows:-

8. Having  examined  the wide  reach  of the Act and jurisdiction  of the Commission to entertain a complaint  not only against business or trading  activity  but even against  service  rendered  by statutory  and public authorities, the stage  is now set  for determining if the Commission  in exercise  of its  jurisdiction  under the Act could award  compensation  and if such compensation  could be for harassment  and agony  to a consumer. Both these aspects specially the latter are of vital significance in the present day context. Still more important issue is the liability of payment. That is, should the society or the tax payer be burdened for oppressive and capricious act of the public officers or it be paid by those responsible for it. The administrative law of accountability of public authorities for their arbitrary and even ultra vires actions has taken many strides. It is now accepted both by this Court and English Courts  that the State is liable  to compensate  for loss or injury  suffered  by a citizen due to arbitrary  actions of its employees”.

12.            Apart from above, an another case, which is necessary to he discussed here is that of National Building Construction Corporation Limited(NBCC) Vs. Shri Ram Trivedi, (2021) 5 SCC 273, wherein the Hon’ble Apex Court fastened the liability on the statutory body/public sector undertaking under the Consumer Protection Act on account of its lapses and deficiencies. The Hon’ble Apex Court held that the consumer forums are empowered to award just and reasonable compensation as an incident of its power to direct removal of a deficiency in service and that they are not constrained by the rate prescribed in the agreement. 

13.            From the well settled legal proposition as discussed above, it is clear that liability for any deficiency, on the part of a statutory body like the OPs, can be fastened and the consumer can be awarded the interest as well as the adequate compensation.

14.            As per well settled legal proposition, a consumer cannot be made to wait indefinitely for the possession of the flat. Therefore, in view of the aforesaid discussion, we have reached at the irresistible conclusion that there have been lapses and deficiencies on the part of the OPs while rendering services to the complainant; hence, the complainant is entitled to relief.

15.            Now, adverting to relief, it is found that the complainant has claimed the refund of deposited amount along with interest @ 18%p.a. and compensation amounting to Rs.5,00,000 on account of mental agony, physical harassment and financial loss etc. and litigation charges respectively. In view of the deficient services rendered by the Ops, the complainant is entitled to the refund of his deposited amount along with interest @9% p.a.(s.i) w.e.f. each deposits till  actual realization . The complainant is also entitled to the adequate compensation. Accordingly, the OPs are directed to refund the amount of Rs.4,70,000/- as deposited by the complainant along with interest @9% p.a.(s.i) w.e.f. each deposits till  actual realization. Further, the Ops are directed to pay a compensation of Rs.15,000/- on account of mental agony and harassment and Rs.5,500/- on account of litigation charges.

16.            The OPs No.1 & 2 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs No.1 & 2. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on:20.10.2022

 

 

 

Dr.Sushma Garg          Dr. Pawan Kumar Saini         Satpal         

           Member                          Member                     President

 

Note: Each and every page of this order has been duly signed by me.

 

                                         Satpal                               

                                        President