State Consumer Disputes Redressal Commission
Satish Kumr vs Managing Director, Housefed on 5 October, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 250 of 2015 Date of Institution : 30.09.2015 Date of Decision : 05.10.2015 Satish Kumar s/o Sh.P.P.Sharma, H.No.493, Sector 13, Kurukshetra ......Appellant/Complainant V e r s u s Managing Director, Housefed, Punjab, SCO No.15-152, Sector 34, Chandigarh. ....Respondent/Opposite Party Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by: Sh.Parveen Gupta, Advocate for the applicant/appellant.
PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT This appeal has been filed against an order dated 07.08.2015, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (in short the Forum) vide which, it dismissed a complaint bearing No.149 of 2015, filed by the complainant (now appellant) on 19.03.2015.
Alongwith the aforesaid appeal, the appellant, has filed an application for condonation of delay of 23 days (as per office no delay) in filing the same, on the grounds mentioned therein.
The explanation given by Counsel for the appellant, in the appeal, at the time of arguments, as also in the application aforesaid, appears to be justified. The delay stands condoned.
The application is disposed of, accordingly.
The appeal is ordered to be heard.
As per facts on record, the Punjab State Federation of Cooperative House Building Societies Limited, Housefed, Chandigarh (in short the Housefed/respondent), invited applications for allotment of built-up flats, on payment of easy instalments, on hire purchase basis. In the advertisement, category of flats to be allotted and amount to be deposited alongwith the application was mentioned as under:-
Category No. of flats Tentative cost of the flat 5% of tentative cost as initial deposit with application Plinth area in Sq.ft.
Category-I 367 Rs.20.18 lacs Rs.1.01 lacs 1297 Category-II 226 Rs.14.92 lacs Rs.0.75 lac 959 Category-III (EWS) 57 Rs.5.98 lacs Rs.0.30 lac 403.47 The appellant applied for Category-I flat/apartment and paid the requisite amount. As per terms and conditions mentioned in the above advertisement, 45% of the tentative cost was to be paid in 8 equated quarterly installments, within 90 days from the expiry date of registration money. Last payment was to be made on 31.07.2011.
Vide allotment letter dated 22.06.2009 (Annexure P-1), the appellant was allotted a flat. In the allotment letter Annexure P-1, tentative price of the flat was mentioned as Rs.20.18 lacs. It is stated that the appellant was surprised to receive a letter dated 18.11.2014 (Annexure P-II), informing him that he has been allotted flat No.2321, 6th floor, Block no.23, Category-I, against final price of Rs.32,50,000/-. After deducting the amount paid by him, he was asked to deposit an amount of Rs.20,38,470/-. It was stated in the complaint that the said price of Rs.32,50,000/-has wrongly been increased without any justification. By stating above, following prayer was made by the appellant, in his consumer complaint filed before the Forum:-
"13. Accordingly, it is prayed as under:-
The Respondent be directed to pay interest @12% on Rs.12.17 lacs paid by the Petitioner from 2012 till the date of payment as the possession of the flat has been delay by over 3 years because the last quarterly instalment has been paid on 31.07.2011 and the possession should have been offered in 2012, whereas the possession has been offered in November 2014. The tentative interest for 3 years @12% on Rs.12.11 lacs comes approx. to Rs.4,50,000/-
Litigation expenses of Rs.15,000/- Mental agony and harassment Rs.25,000/- Total Rs.4,90,000/-."
It was stated in the complaint that last instalment was paid by the appellant, in the year 2012. Possession of the flat was not delivered by that time, though he was allotted the same, in the year 2009. Possession of the flat was ultimately offered in the month of November 2014. In this way, on account of long delay, it was prayed that interest be paid to him @12% P.A., on the amount paid by him whereof 2012, till the date of offer of possession.
Upon notice, reply was filed by the respondent, stating that, in the advertisement, no firm offer/date was given to deliver possession of the flat. Further in the Cooperative Housing Complex, the flats were constructed on no-profit-no-loss basis. The scheme was launched with a view to benefit those, who were without housing accommodation. It was stated that price of the unit advertised was tentative. It was so specifically stated in the advertisement that the same shall be worked out, after its construction is complete but before handing over possession thereof. Cost/price difference, on account of any reason whatsoever, shall have to be paid by the allottee(s). Qua delay, it was stated that it had occurred on account of various factors, beyond control of the respondent. It was specifically stated that the matter was taken up with the Punjab State Power Corporation Limited (in short the PSPCL) for sanctioning of electric load. In reply, it was stated that the respondent should set up 11 KV sub-station to cater to the need of the flat owners. Thereafter, the matter was taken up before the Punjab State Electricity Regulatory Commission, Chandigarh (in short the PSERC). Vide order dated 24.10.2013, the PSERC, directed the PSPCL to workout load of the complex. However, nothing was done. Again, a petition was filed under Section 142 of the Electricity Act, 2003. A Joint Committee was constituted. Load factor was assessed. On looking at the same, the PSERC ordered the PSPCL to release electricity connection at 11 KV supply line, without insisting upon to setup 66 KV sub-station. It was stated that by carrying out the process, as mentioned above, about Rs.11 crores were saved, which otherwise would have been added in price of the units. It was stated that as per Policy of the State Government, it was made mandatory to setup Sewerage Treatment Plant (in short STP), which also resulted into delay in construction. Increase in prices was justified by stating that, during the intervening period, prices of raw material have increased and further the respondent had to bear many other expenses, including increase in the rate of service tax, installation of H.T./L.T. system, as per directions of the PSPCL. Additional amount was also paid to the Municipal Committee towards setting up of sewerage line; and increase of labourer charges etc. Both the parties led evidence by filing their affidavits and also brought on record numerous documents.
The Forum on analysis of evidence on record, and after hearing arguments of Counsel for the parties, dismissed the complaint, filed by the appellant, specifically observing that he had failed to prove any deficiency in rendering service as alleged, on the part of the respondent.
At the time of arguments, before this Commission, in this appeal, Counsel for the appellant raised all together a new issue, stating that he would like to withdraw the entire amount deposited by the appellant, with the respondent. In the prayer Clause, it was stated as under:-
"14. That the following law points are involved in this appeal:-
Whether the arbitrary increase in the price of the flats by 62.66% by the respondent is justified or not and whether the same amounts to Restrictive Trade Practices and Unfair trade Practices? Whether there is delay on the part of the Respondent in the construction of the flats and offering its possession to the complainant and whether this amounts to deficiency in service on the part of the Respondent? Whether the Respondent can claim the defence of force majeure for the flooding of the construction site, non availability of the sand for a short period and delay of sanction of the electric connection by Punjab Power Corporation Ltd.? Whether the respondent can forfeit the amount paid by the complainant for non payment of the balance amount and non taking over of the possession of the flat? That the Appellant be allowed the compensation/reimbursement of the house rent paid by it @ Rs.15,000/- p.m. from January 2013 till date of hiring of the rented accommodation because of the delay in the handing over of the possession of the flats. That the Appellant be allowed compensation for harassment and mental agony of Rs.5.00 lacs. Litigation expenses of Rs.50,000/-.
Any other relief to which this Hon'ble Court deem fit."
Reading of the afore-extracted prayer shows that the appellant has challenged increase in prices of the unit; delay in completing the construction and further whether the respondent can forfeit amount deposited by him. It was further averred that he be paid amount equal to housing rent paid by him @Rs.15,000/- per month whereof January 2013. There was no prayer qua grant of interest, as it was made in the complaint filed before the Forum, by the appellant. In view of above, qua the prayers made, no relief can be granted to the appellant. Furthermore, it has rightly been held by the Forum that the appellant has failed to prove any deficiency in rendering service by the respondent. Noting terms and conditions of the allotment and specifically observing that no firm commitment was made to complete construction within a specific period, it was observed by the Forum as under:-
"The complainant, who was provided all the terms & conditions and was also aware about the basic features of the policy under which the said project was initiated and was to be completed. As there was no specific date of completion promised by the Opposite Party, which they may have breached by offering him possession of his unit in Nov., 2014 instead of in the year 2012, as claimed by the complainant, no deficiency in service can be attributed against the Opposite Party towards breach of such a condition. The complainant has nowhere challenged the final cost of the project amounting to Rs.32,50,000/-, though he claims that he is aggrieved due to vast escalation in price, which the Opposite Party while contesting the same have quoted a judgment titled as Gujarat Housing Board Vs. Dataina Atnrit Lal Phul Chand and Ors., III (1993) CPJ 351 (NC), wherein the Hon'ble National Commission, has categorically held that the question of pricing cannot be gone into by the Consumer Forums since the price of the flat is not fixed by any law and that even if any excess charge has been collected by way of price that will not constitute a ground for contending that there is a 'deficiency' in service on the part of the Opposite Party. Therefore, the price of the flat, which was determined to the tune of Rs.32,50,000/- at the time of offering him the possession, cannot be made a subject matter of a consumer complaint. "
We feel that the view taken by the Forum is perfectly justified. So far as increase in price of the unit(s) is concerned, it was made clear in the advertisement that the price of a unit was tentative and actual price of the same will be intimated when offer of possession thereof will be made. There is sufficient evidence, on record, to show that construction was delayed on account of various reasons like non-grant of No Objection Certificate by the Electricity Department; setting up of STP as per norms; non-availability of the material etc. etc., which was beyond the control of the respondent. It has also come on record that construction of the unit(s) was raised by the respondent to provide housing accommodation to those, who were not having shelter over their head. It was done on the basis of no-profit-no-loss basis. There is nothing on record to show that the above commitment was not fulfilled by the respondent and it has claimed the amount which will profit it. It was firmly stated by the respondent in the reply that in terms of the Policy of the State Government to construct affordable accommodation, the said project/scheme was initiated.
To justify grant of relief, towards prayers made in the appeal, Counsel for the appellant has failed to address any other arguments.
In view of the above discussion, it is held that the order passed by the Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the Forum is upheld.
Certified copies of this order, be sent to the parties, free of charge.
The file be consigned to Record Room, after completion.
Pronounced.
05.10.2015 Sd/-
[JUSTICE JASBIR SINGH (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg