National Consumer Disputes Redressal
Nagpur Improvement Trust vs Anoopsingh on 2 December, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3573 OF 2013 (From order dated 27.02.2013 in First Appeal No. A 524 of 08 of the State Consumer Disputes Redressal Commission, Maharashtra, Nagpur) Nagpur Improvement Trust Through its Chairman, Civil Lines, Nagpur Petitioner Versus Anoopsingh S/o Mohansingh Parihar, R/o 133, Pande Layout Khamla, Nagpur Respondent BEFORE: HONBLE MR.JUSTICE J. M. MALIK, PRESIDING MEMBER HONBLE DR. S. M. KANTIKAR, MEMBER For the Petitioner : Mr. Rajeev Chhabra, Advocate Pronounced on 02nd December, 2013 ORDER
PER DR.
S.M. KANTIKAR
1. This Revision Petition challenges the order of the State Consumer Disputes Redressal Commission, Maharashtra, Circuit Bench (in short, State Commission) Nagpur which dismissed the First Appeal No. A-524 of 2008. The Appeal was preferred by the Appellant against the order of District Consumer Disputes Redressal Forum, (in short, District Forum) Nagpur, in Consumer Complaint No. 202/2007.
2. Brief facts: For sale of flats, Nagpur Improvement Trust, the Petitioner/Opposite Party, advertised in the daily newspaper, The Hitavad on 26/04/2005 and called applications for registration and purchasing the flat under the Public Housing Scheme, Phase-2. The respondent/Complainant booked a flat measuring 790 sq. ft. and deposited Rs.50,000/- with the OP on 28/04/2005. Total cost of the said flat was fixed at Rs.8,70,000/-. The OP had assured to complete the said construction within a period of 8 months and deliver its possession. Similarly, ten persons filed applications to purchase flats having the said area and the registration of the flats was made on the basis of First Come First Priority. The Complainant further deposited the amounts viz. Rs.2,18,000/- on 22/08/2005 and Rs.2,18,000/- on 24/02/2006. The Complainant further contends that the concerned Officer of the OP orally admitted that an additional area could be allotted and for that, last installment would be required to be paid in the sum of Rs.4,50,000/-. Accordingly, the OP issued a demand note to the Complainant to deposit an amount of Rs.4,50,000/-. Accordingly, the Complainant took loan from the Andhra Bank, Nagpur and deposited Rs.4,50,000/- with the OP. But, OPs letter of allotment dated 09/11/2006 motioned that due to non-availability of flat of 790 sq. ft., the Complainant was allotted 724 sq. ft. flat. The Complainant further contended that despite he had deposited an excess amount, the OP has illegally allotted the flat admeasuring 790 sq. ft. to the third party without complying with the rules properly. The Complainant brought the above fact to the notice of the concerned Officer of the OP by sending letters on several times but those letters did not yield any result. Therefore, the Complainant filed a complaint before the District Forum for allotting the flat having an area of 790sq. ft.
3. The OP has admitted about booking of 790 sq. ft. flat by Complainant and the payment made by Complainant paid the amount to the OP from time to time and OP has allotted a flat no. 606 on 6th floor, of total area of 719.93 sq. ft. to the Complainant vide letter dated 14/03/2007. The OP has not admitted the fact that it had demanded an additional amount of Rs.4,50,000/- from the Complainant.
4. The District Forum considering the evidence passed an order and directed the OP to allot flat of 790sq. ft. area to the Complainant or if it is unable to do so, it would allot flat no. 208 having 719.93sq. ft. area having terrace of 541.40sq. ft. area for Rs.9,54,343/-. It also directed under the impugned order to the OP to pay to the Complainant Rs.10,000/- towards mental harassment and Rs.3,000/- towards costs of complaint.
5. Aggrieved by the order of District Forum, the OP filed an Appeal before State Commission. The State Commission heard both the parties. The Counsel for the Complainant put more reliance upon the Honble Supreme Court judgment in Urban Development Trust, Bikaner vs. Mohanlal, 2010 (I) SCC 512. In this case, the State Commission had granted minimum relief by directing allotment of an alternate plot with nominal compensation of Rs.5,000/-. It is observed that instead of remedying the wrong by complying with the decision of the Consumer Forum, the Improvement Trust was trying to brazen out its illegal act by contending that the allottee should have protested when illegally laid the road in his plot. It has persisted with its unreasonable and unjust stand by indulging in unnecessary litigation by approaching the National Commission and then the Supreme Court. It is also observed in that case that the Trust should sensitive its officers to serve the public rather than justify their dictorial acts. It should avoid such an unnecessary litigation.
6. Counsel for Complainant relied upon few other judgments like;
i) Ghaziabad Development Authority vs. Balbir Singh, (2005) 9 SCC 573
ii) Paramvirsingh vs. P.H. House Pvt. Ltd., III (2010) CPJ 465 (NC)
iii) Sajal Roy Barman vs. Prantosh Bandopadhyay & Anr., IV (2011) CPJ 223 (NC)
iii) HUDA vs. Anil Sehgal, III (2010) CPJ 239 (NC) The State Commission after considering the evidence on record dismissed the appeal with following observations as:
In our view, the Appellant/OP cannot take benefit of the fact that it allotted another flat having lesser area of 719.93 sq. ft. area to the Complainant and it also cannot take benefit of the fact that the Complainant participated in auction sell and offered highest bid of Rs.16,10,000/- for flat no.208 having terrace, in as much as the Appellant/OP had already accepted full price of flat having area of 790sq. ft. from the Complainant and failed to allot him the flat without any justifiable reason. Therefore, the Complainant has a right to claim alternatively another flat under the same scheme. The Appellant has not voice under the aforesaid facts and circumstances to say that there is no privity of contract in between it and Complainant for allotment of another flat bearing no. 208 having terrace. The Complainant has not disputed price of Rs.9,54,343/- fixed by the Appellant in respect of the said flat no. 208. The Complainant actually paid Rs.9,36,000/- to the OP. The District Forum below has therefore, rightly directed the Appellant/OP either to allot flat admeasuring 790 sq. ft. or if it could not be allotted, it should allot flat no. 208 having terrace of 541.40 sq. ft. by accepting the fixed price of Rs.9,54,343/-.
7. Aggrieved by the order of State Commission, the OP preferred this revision.
8. We have heard the arguments of Counsel for the Petitioner. We have perused the evidence on record and the documents, the advertisement given by OP. We find that the OP had charged total amount of Rs.9,36,000/- from the Complainant for the flat admeasuring 790sq. ft. and despite sanctioning the allotment to him, the flat was not in fact allotted to him. But, the Complainant in the alternative asked for allotting the flat admeasuring 719.93sq. ft. and the terrace having an additional area. In fact, the Complainant had already deposited on 28/04/2005 the amount with the OP for allotment of the said flat and about 2 years thereafter, the letter had been sent again to the Complainant to purchase the flat by way of auction. Such attitude of OP amounts to unfair trade practice to harass the Complainant unnecessarily. Therefore, we dismiss this Revision Petition and confirm the order passed by the State Commission. No order as to costs.
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(J.M. MALIK J.) PRESIDING MEMBER .
(Dr. S.M. KANTIKAR) MEMBER Mss/14