State Consumer Disputes Redressal Commission
Sh. Sukhvinder Singh Thakur. vs Ceo-Cum-Secretary, Himuda. on 25 November, 2019
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 162/2018
Date of Presentation: 16.04.2018
Order Reserved on : 12.06.2019
Date of Order : 25.11.2019
......
Sukhvinder Singh Thakur son of Shri Rasil Singh R/o F-2
HIMUDA Colony Strawberry Hills Chota Shimla Shimla-2 (H.P).
...... Appellant/Complainant
Versus
CEO -cum- Secretary HIMUDA Nigam Vihar Shimla-2 (H.P).
......Respondent /Opposite party
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Ms. Sunita Sharma Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Baldev Singh Negi Advocate.
For Respondent : Mr. Arush Matlotia Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed against order dated 23.01.2018 passed by Learned District Consumer Forum/ Commission in consumer complaint No.131/2016 titled Sukhvinder Singh Versus CEO -cum- Secretary HIMUDA. Brief facts of consumer complaint:
2. Complainant filed consumer complaint under Consumer Protection Act pleaded therein that opposite party 1 Whether reporters of the local papers may be allowed to see the order? Yes.
Sukhvinder Singh Thakur Versus CEO -cum- Secretary HIMUDA F.A. No.162/2018 allotted plot No.A-16 Type-1 in housing colony situated at Mandhala (Baddi) District Solan (H.P). It is pleaded that complainant deposited a sum of Rs.1921694/-(Nineteen lac twenty one thousand six hundred ninety four) against cost of plot in question in five equal installments. It is pleaded that final cost of plot in question was assessed as Rs.2302000/- (Twenty three lac two thousand). It is further pleaded that opposite party demanded additional amount to the tune of Rs.523658/-(Five lac twenty three thousand six hundred fifty eight) as penal interest as well as watch and ward charges till 22.01.2016 in illegal manner. It is pleaded that even opposite party did not develop any park and also did not construct gate and also did not erect electricity pole as mentioned in brochure issued by HIMUDA.
3. It is further pleaded that opposite party committed deficiency in service. Complainant sought relief to the effect that opposite party be directed to provide all facilities mentioned in the brochure. Complainant also sought additional relief to the effect that opposite party be directed to waive of penal interest claimed for watch and ward charges. In addition complainant sought compensation to the tune of Rs.50000/-(Fifty thousand) for mental harassment. In addition complainant sought litigation costs to the tune of 2 Sukhvinder Singh Thakur Versus CEO -cum- Secretary HIMUDA F.A. No.162/2018 Rs.15000/-(Fifteen thousand). Prayer for acceptance of consumer complaint sought.
4. Per contra version filed on behalf of opposite party pleaded therein that complainant has no locus standi to file present consumer complaint. It is pleaded that complicated questions of facts and laws are involved in present matter and complainant be relegated to civil court for adjudication of dispute. It is further pleaded that present consumer complaint is bad for mis-joinder of parties. It is pleaded that complainant is estopped from filing present consumer complaint due to his act and conduct. It is pleaded that opposite party did not commit any deficiency in service and amount claimed from complainant strictly as per terms and conditions of agreement executed inter se parties. Prayer for dismissal of consumer complaint sought.
5. Learned District Consumer Forum/Commission dismissed the consumer complaint. Feeling aggrieved against order passed by Learned District Consumer Forum/ Commission complainant filed present appeal before State Commission.
6. We have heard learned Advocates appearing on behalf of parties and we have also perused entire record carefully.
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Sukhvinder Singh Thakur Versus CEO -cum- Secretary HIMUDA F.A. No.162/2018
7. Following points arise for determination in present appeal.
1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal?
2. Final order.
Findings upon point No.1 with reasons:
8. Complainant filed affidavit Ext.CW-1 in evidence.
There is recital in affidavit that residential plot No.A-16 in housing colony Mandhala (Baddi) District Solan (H.P) Type-I was allotted to deponent by opposite party. There is recital in affidavit that deponent paid an amount of Rs.1921694/- (Nineteen lac twenty one thousand six hundred ninety four) in five equal installments. There is recital in affidavit that final cost of plot in question was Rs.2302000/-(Twenty three lac two thousand). There is recital in affidavit that deponent also deposited balance amount. There is recital in affidavit that opposite party charges a sum of Rs.523658/-(Five lac twenty three thousand six hundred fifty eight) as penal interest and also watch & ward charges of the plot in question till 22.01.2016. There is recital in affidavit that opposite party failed to provide basic facilities as mentioned in brochure. State Commission has carefully perused all the annexures filed by complainant.
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Sukhvinder Singh Thakur Versus CEO -cum- Secretary HIMUDA F.A. No.162/2018
9. Opposite party filed affidavit of Mrs. Anjori Kapoor Superintending Engineer HIMUDA in evidence. There is recital in affidavit that version and annexures filed with version be read as part and parcel of affidavit.
10. Submission of learned Advocate appearing on behalf of complainant that penal interest charged by opposite party to the tune of Rs.523658/-(Five lac twenty three thousand six hundred fifty eight) as watch and ward charges be waived of is decided accordingly. State Commission has carefully perused brochure annexure-C3 placed on record. State Commission is of the opinion that terms and conditions of brochure is binding upon both the parties. There is recital in general condition No.7 of the brochure that if possession of plot would not be taken by allottee within stipulated period then allottee would pay watch & ward charges @ 0.1% of the final cost per month. There is recital in brochure that if allottee fails to take possession within three months then watch and ward charges would be claimed @ 0.2% per month. It is proved on record that possession letter was issued to complainant by HIMUDA annexure-CI. HIMUDA assessed final cost to the tune of Rs.2302000/-(Twenty three lac two thousand) and HIMUDA mentioned in allotment letter that complainant has paid an amount of Rs.1921694/-(Nineteen lac twenty one thousand six hundred ninety four) and 5 Sukhvinder Singh Thakur Versus CEO -cum- Secretary HIMUDA F.A. No.162/2018 HIMUDA demanded an amount of Rs.380036/-(Three lac eighty thousand thirty six) from complainant. State Commission is of the opinion that terms and conditions of brochure is binding upon both the parties. There is positive condition in brochure that opposite party would be legally entitled to claim watch and ward charges if possession is not taken within stipulated period mentioned in brochure. State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to allow complainant to flout terms and conditions of brochure. In view of the fact that complainant did not deposit balance amount of possession of plot within stipulated period it is not expedient in the ends of justice and on the principles of natural justice to interfere in penal interest amount claimed by opposite party from complainant.
11. Submission of learned Advocate appearing on behalf of complainant that opposite party be directed to provide all facilities mentioned in brochure is decided accordingly. There is recital in brochure that HIMUDA would provide basic facilities like roads, water supply, sewerage and electricity etc. in the plot and would not be responsible for providing other amenities mentioned in the layout plan which are for the purpose of land use only. State Commission is of the opinion that as per terms and conditions of brochure 6 Sukhvinder Singh Thakur Versus CEO -cum- Secretary HIMUDA F.A. No.162/2018 opposite party was under legal obligation to provide basic services like roads, water supply, sewerage and electricity etc. to complainant. Opposite party did not file report of any competent authority on record in order to prove that HIMUDA has provided the basic services like Roads, water supply, sewerage and electricity etc. to complainant. State Commission is of the opinion that it is expedient in the ends of justice and on the principles of natural justice to direct opposite party to provide basic services to complainant as mentioned in brochure i.e. Roads, water supply, sewerage and electricity etc.. No reasons assigned by HIMUDA as to why HIMUDA did not file report of competent authority that roads, water supply, sewerage and electricity etc. already stood provided to complainant.
12. Submission of learned Advocate appearing on behalf of complainant that complainant is entitled for compensation to the tune of Rs.50000/-(Fifty thousand) for mental harassment is decided accordingly. State Commission is of the opinion that complainant is legally entitled for reasonable compensation for mental agony and harassment because HIMUDA did not file report of competent authority on record in order to prove that basis services like roads, water supply, sewerage and electricity etc. already stood provided to complainant.
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Sukhvinder Singh Thakur Versus CEO -cum- Secretary HIMUDA F.A. No.162/2018
13. Submission of learned Advocate appearing on behalf of complainant that complainant is entitled for litigation costs is decided accordingly. State Commission is of the opinion that complainant has engaged Advocate and has also paid litigation costs & other expenses. Hence it is held that complainant is entitled for reasonable litigation costs from HIMUDA.
14. Submission of learned Advocate appearing on behalf of HIMUDA that complicated questions of facts and laws are involved in present matter and complainant be relegated to civil court for redressal of his grievances is decided accordingly. State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to relegate complainant to civil court for adjudication of dispute. State Commission is of the opinion that it is expedient in the ends of justice and on the principles of natural justice to dispose of consumer complaint under Consumer Protection Act 1986 because HIMUDA has received consideration amount from complainant and HIMUDA is under legal obligation to provide all basic facilities like roads, water supply, sewerage and electricity etc. as per brochure issued by HIMUDA. See CPR 2016(4) 487 NC Amandeep Kaur Versus DLF Universal Ltd. & others. See 2017(1) CPR 8 Sukhvinder Singh Thakur Versus CEO -cum- Secretary HIMUDA F.A. No.162/2018 315 NC M/s. Krishna Kunj Versus Rabindra Nath Basu and others.
15. Submission of learned Advocate appearing on behalf of HIMUDA that present consumer complaint is not within limitation and on this ground appeal filed by complainant be dismissed is decided accordingly. State Commission is of the opinion that complainant has recurring cause of action relating to basic services such as roads, water supply, sewerage and electricity etc. Point No.1 is decided accordingly.
Point No.2: Final Order
16. In view of findings upon point No.1 above appeal is partly allowed. Order of Learned District Consumer Forum/ Commission is set aside. It is ordered that HIMUDA shall provide basic services to complainant i.e. Roads, water supply, sewerage and electricity etc. because HIMUDA has received consideration amount from complainant for plot in question.
17. It is further ordered that HIMUDA shall pay compensation to complainant for mental agony and harassment to the tune of Rs.10000/-(Ten thousand). It is further ordered that HIMUDA shall pay litigation costs to complainant to the tune of Rs.5000/-(Five thousand). It is 9 Sukhvinder Singh Thakur Versus CEO -cum- Secretary HIMUDA F.A. No.162/2018 further ordered that HIMUDA will file affidavit before Learned District Consumer Forum/Commission that basic services i.e. Roads, water supply, sewerage and electricity etc. stood provided to complainant. Other reliefs sought by complainant are declined in the ends of justice and on the principles of natural justice. Brochure issued by opposite party Annexure- C-3 shall form part and parcel of order.
18. File of learned District Consumer Forum/ Commission alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Sunita Sharma Member 25.11.2019 K.D 10