State Consumer Disputes Redressal Commission
Lt. Col T.S. Kahlon vs M/S Central Govt Employees Welfare ... on 12 April, 2016
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.810 of 2014
Date of Institution: 25.06.2014
Date of Decision :12.04.2016
Lt. Col. T.S. Kahlon S/o Lt. Col. J.S. Kahlon R/o # 35, Sector-2,
Panchkula.
.....Appellant/complainant
Versus
1.M/s Central Government Employees Welfare Housing
Organisation, Sixth Floor, "A" Wing, Janpath Bhawan, Janpath,
New Delhi-110001 through its CEO.
2.CGEWHO Housing Project/Scheme (Phase-1), Sunny Enclave,
Sector 125, Kharar, Mohali-140301 (Punjab), through its Project
Manager, Sh. Bant Singh.
.....Respondents/opposite parties
First Appeal against order dated
30.05.2014 passed by the District
Consumer Disputes Redressal Forum,
SAS Nagar, Mohali.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member
Shri. H.S. Guram, Member Present:-
For the appellant : Sh. J.S. Kahlon, Advocate For the respondents : Sh. Kanwardeep Singh, Advocate ....... ...........................................
AND
2) First Appeal No.1008 of 2014 Date of Institution: 21.07.2014 Date of Decision : 12.04.2016
1.Central Government Employees Welfare Housing Organisation, Sixth Floor, "A" Wing, Janpath Bhawan, Janpath, New Delhi-110001 through its CEO.
2.CGEWHO Housing Project/Scheme (Phase-1), Sunny Enclave, Sector 125, Kharar, Mohali-140301 (Punjab), through its Project Manager, Sh. Bant Singh.
.....Appellant/opposite parties Versus First Appeal No.810 of 2014 2 Lt. Col. T.S. Kahlon resident of house no.35, Sector-2, Panchkula.
.....Respondent/complainant First Appeal against order dated 30.05.2014 passed by the District Consumer Disputes Redressal Forum, SAS Nagar, Mohali.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member Shri. H.S. Guram, Member Present:-
For the appellant : Sh. Kanwardeep Singh, Advocate For the respondents: Sh. J.S. Kahlon, Advocate ................................................. By this common order, we intend to dispose of the above referred two first appeals, as they have arisen out of the same order of the District Consumer Disputes Redressal Forum, S.A.S. Nagar (Mohali) (in short 'the District Forum') dated 30.05.2014. The order shall be pronounced by us in first appeal no.810 of 2014 titled as "Lt. Col. T.S. Kahlon Vs. M/s CGEWHO".
2. The appellants of first appeal no.810 of 2014 (the complainant in the complaint) has directed this appeal against the respondents of this appeal (the opposite parties in the complaint), assailing order dated 30.05.2014 of District Consumer Disputes Redressal Forum SAS Nagar, Mohali for enhancement of amount of compensation, as awarded by the District Forum, vide order dated 30.05.2014, whereas First appeal no.1008 of 2014 has been filed by the appellants of this appeal (the opposite parties in the complaint) against the respondent herein (the complainant in the complaint) against order of District Forum dated 30.05.2014, vide First Appeal No.810 of 2014 3 which, the complaint of the complainant was accepted by fixing the liability of OPs for deficient services.
3. The complainant has filed the complaint under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that OPs floated a scheme for allotment of residential flats under the name and style of "Kendriya Vihar, Mohali". The OP organization is a registered society under the Societies Registration Act of 1960 and it is established to promote, control and coordinate the development of housing schemes at selected places, all over India and further to provide welfare housing services of qualities to the Central Government employees and certain other defined persons. It has been further pleaded that OPs started promoting its scheme in the year 2006. On assurance of agents/officials of OPs, the complainant applied for the residential flat, as he was in urgent need of residential flat in a developed area.
The complainant gave a draft of Rs.60,000/- for the booking amount of the flat. The complainant was kept on pursuing the OPs needlessly for actual allotment of the intended flat, but OPs postponed the matter on one pretext or the other. OPs finally sent an allotment letter in May, 2007 to complainant and the second instalment was to be payable on the commencement of the construction, as per this letter. It has been further averred that second installment was called, vide letter dated 31.08.2007 by the OPs and complainant paid the same by taking loan from Army Group Insurance Fund and he has been paying the regular installments of First Appeal No.810 of 2014 4 the loan. The complainant received a circular dated 15.12.2008 from OP regarding technical details and approval of the said project by the Local Mohali Authority and regarding the appointment of Technical Consultant thereto. The OPs did not adhere to their obligation of completing the construction within the promised time of 30 months, but rather kept on demanding installments through call notices from time to time. The OPs issued circular dated 22.06.2011, in which, they had given vague reasons for the delay, which were not legally tenable. It has been further averred that as per the scheme brochure, the construction was to complete in 30 months period, which expired in January 2011. The OPs then represented that project would be completed in the month of March 2012. The OPs held a draw at their site office in Mohali for the allotment of specific/flat/floor and car parking on 30/31 May, 2013. It has been further averred that complainant continued to deposit the due installments, as per schedule and demand of the OPs. The complainant finally received final call-up letter dated 18.09.2013 regarding offer of its possession. The OPs demanded certain amounts which were not payable. The cost of dwelling unit has been wrongly worked out, because the OPs added the cost/expenses occurring due to the delay on their part. It has been further averred that at present, the project has not been completed or became habitable by the OP, which stood proved by the letter of OPs. The OPs represented to the complainant that the electricity would be provided through DG sets to the bare minimum extents and ACs, First Appeal No.810 of 2014 5 Geysers, Heaters would not be able to be used. It has been further averred in the complaint that OPs represented to complainant that possession would be given by the Project Manager at Mohali by 31st January, 2014 or within one month from energization of transformers by PSPCL, whichever was earlier by betaking that date of possession was indefinite and could be very late. The OPs are still forcing the complainant to pay the amount in an illegal manner, when possession is not as yet complete on their part for its delivery to complainant. It has been further averred that complaiantn is a government employee and had invested in the flat with the hope that he and his family would have a shelter in the tricity by June, 2010, but OPs failed to deliver the possession of the flat in time. The complainant has, thus, prayed that OPs be directed to put on hold the demand raised, vide final call-up letter dated 18.09.2013, till the grant of permanent electricity connection by the PSPCL and grant of occupation certificate by the relevant authority, ii) to withdraw all demands of money which are illegal and not as per the allotment letter, iii) to pay a sum of Rs.30,00,000/- lakhs to compensate to the complainant for the monetary loss and mental and physical harassment caused to him, besides the rent paid by him for hiring other residential accommodation during the enhanced period, iv) OPs be further directed to pay interest @15% per annum on the amounts deposited by the complainant with effect from March, 2010 till the date of grant of occupation certificate of the said flat by the Local Authority, v) to pay Rs.1 lakh as damages for adopting various First Appeal No.810 of 2014 6 unfair trade practices, vi) to pay Rs.1 lakh as punitive damages and the amount be ordered to be released in favour of the Punjab Legal Services Authority and vii) to pay Rs.30,000/- as costs of litigation to complainant.
4. Upon notice, the OPs appeared and filed written reply raising preliminary objections that Central Government Employees Welfare Housing Organization (CGEWHO) (the OP) was established to promote, control and coordinate the development of houses at selected places, across India, on no profit- no loss basis as a welfare measure and it is a registered body under the Societies Registration Act, 1860 and operates from its headquarter at Janpath Bhavan, Janpath New Delhi. It has been further pleaded by the OPs in written reply that their aim is to provide quality welfare service to Central Government Employees for housing, both serving and retired, and spouses of deceased Central Government Employees by inter-alia promoting the construction of houses. The members of Governing Council of CGEWHO are ex-officio members holding responsible positions in various Ministries/Corporations of Government of India and one of the members is leader of staff side, National Council (Joint Consultative Machinery). The OP is not in any manner a realtor or developer in the business of profit making or generating funds for Government. The grants received from Government are utilized towards meeting the expenses in various projects, the benefit of which is availed by the beneficiaries of various schemes. The projects completed by OPs are handed over to the beneficiaries First Appeal No.810 of 2014 7 exclusively and maintenance of the common services are handed over by forming apartment owners associations, which takes care of the entire property and answering OP is left with no other role except to ensure the compliance to the local laws and regulations by the beneficiaries. The OPs have no capital of their own to be utilized towards the execution of projects and each project is conceived and executed on self-finance basis after conducting a demand survey from the employees and after ascertaining the requisite number of willing employees for having the benefit of any housing project. It has been further pleaded by the OPs that Turnkey Contract Method is applied when land is not made available by the local land allotting authority inspite of clear demand in the station. The complainant has suppressed material facts from the Forum and has not disclosed the material facts and brochure of the Housing Scheme and wrongly projected that OP is a profit making organization. It has been further averred that OP has no branch office at Mohali, nor it is a distinct legal entity at Mohali. The flats offered are handed over to those, who are in the waiting list or to eligible officials by way of an open advertisement. Subsequent purchaser is required to pay equalization charges only in payment made due to delayed entry to the scheme. The complaint has also been contested even on merits by the OPs on the above referred grounds. It has been further averred that beneficiaries were fully aware of the progress of the project, as stated above and delay, if any, is on account of getting requisite approval of local authorities and such delays are beyond the control First Appeal No.810 of 2014 8 of OPs. The allotment letters can be issued only after approval of plans, which took time at the end of Local Authorities. It was made clear in Circular dated 15.12.2008 that the area of dwelling unit was modified as per the requirement of the authority competent to approve the plan and the area was increased to some extent alongwith the provision of fully automatic lifts with stand-by power arrangements in the form of DG sets for operation, in case of power failure. There was some upward revision of cost to the reasonable extent. The installments were called for on the basis of originally announced cost with provision for adjustment of increased cost in future installments. The offer was given to the beneficiaries with the effect that each beneficiary can opt for withdrawal from the scheme , the total amount paid alongwith interest @6.5% per annum would be refunded to the beneficiaries. The said option was for 45 days, but no beneficiary including complainant sought refund with interest. It was further averred that electricity connections are to be applied by the individual beneficiaries to PSPCL and OP has no control over the same. Annexure R-5, the email in this regard has been sent to the beneficiaries, who had taken over the possession to apply for individual electricity connections and also intimated that PSPCL has accepted the Emd/Security Deposit for electricity connection for common areas/properties/ facilities also. It has been further averred that as far as internal work is concerned, nothing is left to be done and power back up facility would be provided through DG sets. The completion certificate of Phase I of the overall project has already First Appeal No.810 of 2014 9 been procured by the OP, which means that work regarding the tower/dwelling unit concerned was complete and possession has been offered, vide letter dated 18.09.2013 specifically intimating that all the infrastructural facilities are in place except electricity connection to be given by PSPCL. The completion certificate for Phase I of the project has been given by the Local Authorities by way of partial completion certificate to enable the complainant and others having flats in Phase I to occupy the flats, as subsequent phases are still in progress. The allottees were asked to make the payment towards cost of flats determined, as per the given methodology on actual expenditure basis. Cost escalation also includes additional statutory liability of service tax w.e.f. 01.07.2010. It has been further averred that all the payments and documents have been received at Delhi and operations at the site and site meetings did not imply that branch office of OP is at Mohali. The OPs controverted the averments of the complainant regarding his entitlement to any compensation and, thus, prayed for the dismissal of the complaint.
5. The complainant tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-13 and closed the evidence. As against it, the OPs tendered in evidence affidavit of Anju Arora, AAO (Mohali Project) of OP Ex.OP-1/1 alongwith documents Ex.OP-1 to Ex.OP-7 & copy of affidavit of complainant Ex.OP-3/1 and closed the evidence. On conclusion of evidence and arguments, the District Forum accepted the complaint of the First Appeal No.810 of 2014 10 complainant by directing the OPs to withdraw the final call up letters Ex.C-12 and Ex.C-13 and to issue the fresh letter of offer of possession indicating the details of approval, ii) not to charge any interest on the last demanded amount as per Ex.C-12, iii) to pay a lump sum compensation of Rs.2,25,000/- on account of mental harassment and deprivation of enjoyment of his property, besides Rs.22,000/- as litigation expenses. Dissatisfied with the above order of District Forum, the OPs now the appellants of first appeal no.1008 of 2014 directed this appeal against the same. Whereas, the complainant now appellant of first appeal no.810 of 2014 preferred this appeal for enhancement of compensation as awarded by the District Forum Mohali.
6. We have heard learned counsel for the parties at considerable length and have also examined the record of the case. Firstly, we touch the evidence on the record adduced by the parties in this case. Ex. C-1 is the copy of letter from OPs to complainant, vide which, he was kept pending in waiting list no.4 (in the general category) for type 'D' dwelling unit in Mohali (Phase-I) Housing Scheme by the OPs in this case. Ex.C-2 is the copy of allotment letter-cum-call up notice for payment of first instalment- Mohali (Phase-I) Housing Scheme. The tentative payment schedule, generally applicable for payment of various instalment(s) is given as below:
Instalment Period Percentage Type A Type B Type C Type D 1st By 14.05.2007 30 303600 495000 690000 828000 2nd On commencement of 15 151800 247500 345000 414000 First Appeal No.810 of 2014 11 construction 3rd after 4/6 months 20 202400 330000 460000 552000 4th after 4/6 months 15 151800 247500 345000 414000 5th after 4/6 months 20 202400 330000 460000 552000 6th On offer of possession all other charges including escalation, interest, cooperative society charges, contingency fund, stamp duty etc., alongwith cost of Parking(s) (if allotted).
It is recorded in it that the first instalment of 30% minus the earnest money of Rs.50000.00 deposited alongwith the application, amounting to Rs.445000.00 being due for payment on 14.05.2007 was to be paid through Demand Draft to OP. Ex.C-3 is the copy of call-up notice dated 31.08.2007 for payment of second instalment from OP to complainant. Ex.C-4 is the copy of letter from OP to all beneficiaries of Mohali Phase-I Housing Scheme. Ex.C-5 is the copy of letter from Army Group Insurance Fund to complainant regarding entitlement of house building loan. Ex.C-6 is the copy of letter from OP to all beneficiaries of above scheme regarding withdrawal option from the above scheme. Ex.C-7 is copy of letter dated 22.06.2011 from OP to all the beneficiaries of the scheme regarding increase in the cost of construction material like cement, steel and so on. Vide this letter, OPs offered option for withdrawal to the beneficiaries of the scheme and period of offer was 45 days from the date of issue of letter. Ex.C-8 to C-10 are the copies of rent/deed agreement executed between complainant and Col Bhupinder Singh Grewal S/o Rear Admiral (Late) Mohan Singh Grewal, R/o #35-A, Sector 2, Panchkula (Landlord) for the period from 1.01.2011 to 30.11.2011, from 01.12.2011 to 31.10.2012 and from 01.01.2012 to 30.09.2013, respectively. Ex.C-11 is the copy of individual account statement. First Appeal No.810 of 2014 12 Ex.C-12 is the copy of final call-up-letter from OP to complainant showing the net due amount of Rs.10,77,330/-. Ex.C-13 is the copy of offer of possession dated 18.09.2013 from OPs to the beneficiaries of the above scheme.
7. The OPs relied upon affidavit of Ms. Anju Arora, AAO (Mohali Project) Central Govt. Employees Welfare Housing Organizations, wherein it is stated that OP has been established to promote, control and coordinate the development of houses at selected places, across India, on no profit- no loss basis as a welfare measure. The OP is a registered body under the Societies Registration Act, 1860. The goal of OP is to provide quality welfare service to Central Government Employees for housing. The project at Mohali wherein the complainant is a beneficiary is Turnkey Contract Method, as described in detail on web site for the information of all the beneficiaries. The OPs are not working for gain, but are providing services to the beneficiaries and are not like private builders, who sell for profit alone. It is stated in this affidavit that the construction schedule, as informed in brochure, the period of completion as 30 months, after start of construction on approval of plans by competent authority. This witness further stated that OP is performing on no loss no profit basis and in case, any of its beneficiaries opts for withdrawals, the flats surrendered are offered to those in the waiting list, if any, or are again offered to eligible officials by way of open advertisement. It is further stated in this affidavit that allotment letter can be issued after approval of plans First Appeal No.810 of 2014 13 which took time at the end of local authorities. The meeting of Project Monitoring Committee was held on 19.03.2012 showing that elected representative of apartment owners association was member of monitoring committee, which means that there is inclusive participation of the beneficiaries in progress and development of the project. It is further stated in this affidavit that electricity connection was to be applied by the individual beneficiaries to PSPCL and OP has no control over PSPCL, as far as internal project is concerned, nothing is left to be done and power back up facility would be provided through DG sets. She further stated in her affidavit that as the completion certificate of Phase I of the overall project has already been procured by the OP, which means that work regarding the tower/dwelling unit concerned is complete and the possession has been offered, vide letter dated 18.09.2013 specifically intimating that all the infrastructural facilities are in place except electricity connection to be given by PSPCL, for which discussions are going on at highest level of State Power Corporation and individual allottees are required to apply for electric connection for their respective flats. The increase in cost was as per the technical specifications duly circulated, vide letter dated 15.12.2008 and due to escalation in cost incurred. The jurisdiction has been conferred at Delhi Court only to resolve the dispute as per the agreement executed between the parties. Ex.OP-1 is the copy of Memorandum of Association of the OP, showing it being registered under the Societies Registration Act of 1860. Ex.OP-2 is the copy of First Appeal No.810 of 2014 14 introduction of the OP. Ex.OP-3 is the copy of index to contents, the detailed brochure dealing with this project. The total dwelling units at Mohali were 650. In clause 8 of it, the Construction Schedule:
Construction is likely to commence around mid 2007, on approval of plans by statutory authorities. The project is expected to be completed within 30 months, thereafter. Ex.OP-4 is the copy of letter dated 22.06.2011 from OP to the beneficiaries to the effect that during execution of the project, however the costs have risen on other counts as below, as given in it. Clause 6 of this letter Ex.OP-4 contained the option for withdrawal stating that if any beneficiary finds the above incompatible and wishes to withdraw from the scheme, he/she may intimate the OP of his/her decision and as a special case, the organization shall not charge any withdrawal charges and the amount deposited by the beneficiary shall be refunded back alongwith an interest @ 6.5% per annum from the date of deposits. Ex.OP-5 is the copy of intimation to the beneficiaries dated 21.12.2013 at 3:03 PM to the effect that they should contact Project Manager of OP at Mohali immediately for individual electricity connections. PSPCL has accepted EMD/security deposit for electricity connection for common areas/properties /facilities also and OP would like to issue the formal notice to all other beneficiaries about the development shortly. Even from Ex.OP- 5, it is not evident that final clearance by PSPCL to release electricity connection has been ordered. Ex.OP-6 is letter from Executive Officer Municipal Committee Kharar, to OPs with regard to First Appeal No.810 of 2014 15 application dated 28.03.2011 indicating that they were bound to take the final completion certificate. This letter is in connection with letter dated 28.03.2013 of OPs to the effect that final completion certificate was not yet issued to the OPs by the Municipal Committee Kharar, but it was a direction to make compliance of the directions and liabilities of the OPs. From Ex.OP-6, we nowhere find that it has been proved that Municipal Committee Kharar has yet issued the completion certificate on 28.03.2013. Ex.OP-6 is letter dated 28.11.2013, which is not fully legible to be read and is after 28.03.2011 and has proved, that even in the year 2013, the completion certificate to OP has not yet been issued by the Municipal Committee Kharar. Ex.OP-7 is the copy of site plan.
8. The submission of counsel for the OPs now appellants of first appeal no.1008 of 2014 is to the effect that OP launched housing scheme on the basis of no profit, no loss basis project for the welfare of the Central Government Employees and District Forum has not appreciated this controversy. The emphasis of counsel for the OPs now respondents of first appeal no.810 of 2014 is that Courts would not interfere even if there is escalation in the price of flats and District Forum, thus, committed error on this score. It was further urged by counsel for respondents of first appeal no.810 of 2014 that the construction was likely to commence in November 2007 on approval of plans by statutory authorities and was expected to be completed within 30 months thereafter. Plans were approved by the authorities in parts in January, 2008 and February 2008 and First Appeal No.810 of 2014 16 construction could be taken up subsequent thereto only after approval of the plans. He further urged that revised date of commencement of construction on payment of second instalment was 21.08.2008 only. The construction was dependent on number of activities like approval of statutory authorities/bodies and so on and delays were, thus, beyond the control of the OPs due to dearth of sand and so on, on account of mining restrictions. He further submitted that partial completion certificate for Site-2 and 3 has been obtained, whereas the flat of the complainant falls in Site-1 indicating that all the dwelling units in the project at Phase-I has been completed. He further stressed that the electricity supply would be provided through DG sets to those who are interested to take possession of dwelling units, free of cost to enable them to do the preparatory works for making the units habitable. The regular power supply shall be made available within two months by the end of December 2013 by PSPCL. On the point of high tension wires, Sh. Kanwardeep Singh, Advocate argued that though the high tension wires are passing through the complex, yet the same are located at a safe height and at some distance as per the electricity norms/guidelines causing no hazards to any of the beneficiaries regarding the safety of the building. It was emphatically stressed by him that the final cost is lesser than the interim cost. It was forcefully maintained by counsel for the OPs that even in case of offer of withdrawal from the scheme, the deposited amount shall be returned alongwith interest @ 6.5% per annum to the allottees/beneficiaries First Appeal No.810 of 2014 17 and as such the order of the District Forum Mohali fixing the liability on the OPs in the above referred cases is arbitrary and perverse and unsustainable.
9. On the other hand, Sh. J.S. Kahlon, counsel for the complainant now appellant of first appeal no.810 of 2014 submitted that the housing construction project was likely to commence by mid 2007 and to be completed within 30 months thereafter assuring timely completion being its salient features. Finally, OP sent the allotment letter to complainant asking to deposit 30% of the cost of dwelling unit as land cost was called, which stood paid by 14.05.2007 by the complainant. The second instalment being 15% cost of dwelling unit was to be called only on commencement of construction of the project from the complainant, which was called by the OP and stood paid on 10.10.2007 by the complainant. The construction of the project is, thus, deemed to have started on December 2008 as per circular dated 15.12.2008 indicating that plan stood approved by Local Authorities. In this way, OPs wrongly demanded 2nd installment in May 2007 as it against allotment letter, vide which, it was informed that 2nd installment of Rs.4,14,000/- was to be paid only on commencement of construction. The project was to be constructed on Turnkey Contract Method and payment of instalment was construction linked based upon the stage of construction, as maintained by Sh. J.S. Kahlon counsel for complainant during arguments.. It was forcefully submitted that final call up letter dated 18.09.2013 alongwith offer of possession was First Appeal No.810 of 2014 18 received with direction to make payment by 29th November, 2013 by complainant from OPs and to take possession of flat by 31st January 2014 or within one month from energisation of transformers by the PSPCL, whichever took place earlier. The main argument of the counsel is that the demands raised by the OP are not payable as the cost of dwelling units was wrongly worked out, because OPs are adding cost and expenses amounting to nearly additional 25% cost of the dwelling units due to delay, which solely occurred on their part. He further stressed that offer of possession by OP is merely symbolic and not real because there was no basic facility of electricity of 66 KVA and even the parking areas are not final. It was forcefully put forth that there was no final or fixed date of giving possession by OPs and as per the letter of possession, it was to be given by Project Manager at Mohali by 31 January 2014 or within one month from the energisation of the transformers by PSPCL, whichever is later. The complainant, thus, submitted that the District Forum has rightly passed the order imposing the liability to pay the compensation to the complainants for the above referred deficiencies on their part. On the point as to whether the OP is a service provider or amenable to the jurisdiction of District Consumer Forum Mohali, it was contended that housing project falls within the category of service under the Act and OPs cannot escape from it. Emphasis was laid on this point that promoter, while floating development scheme must specify the date by which the possession of the apartment be handed over and shall hand over the possession First Appeal No.810 of 2014 19 accordingly to the beneficiaries. The complainant further contended that he is required to pay 18% interest to the OPs for the delayed payment and similar interest be awarded for the delayed delivery of possession to the complainant by the OPs in this case.
10. The first point for adjudication before us is as to whether the District Forum Mohali was competent to entertain the above referred complaints under the Act or not. The submission of OPs is that District Forum Mohali had no jurisdiction to entertain and to decide the complaints. It was contended that no part of cause of action accrued within the domain of District Forum Mohali and hence the orders passed by the District Forum Mohali in the above referred connected appeals are not sustainable being non-est. On the other hand, the argument raised by the counsel for the complainant now appellant of first appeal no.810 of 2014 is that cause of action to file the complaint in the area of District Forum Mohali inhered and as such it was duly competent to try and entertain the case. The next submission of the OPs is that only appropriate Forum of New Delhi was competent to decide the cases, notwithstanding the location of the property, as per brochure Ex.OP-3 and as such the District Forum Mohali lacked the territorial jurisdiction to try the case. We have bestowed our careful attention to these contentions propounded before us by the counsels. The District Forum returned the finding that it has the jurisdiction to entertain and decide the complaints because cause of action arose within its jurisdiction. Section 11(2) of the Act assumes significance in this case. It consists First Appeal No.810 of 2014 20 of three points (a), (b) and (c). Point (c) thereof is relevant which is disjunctive of other clauses and specifically lays down that the Consumer Forum has jurisdiction in whose local limits, the cause of action wholly or partly arises. Herein, we hold that the project is located within the jurisdiction of District Forum Mohali and meetings of monitoring committee of the project were also held at Mohali about it. The possession of the flat was to be taken at Mohali after meeting the requirements of demand notice Ex.C-7 and C-12 by the allottees. Consequently, the cause of action has arisen to the complainant within the territorial jurisdiction of District Forum Mohali in this case at Mohali because the project possession whereof was to be given to the complainant is situated at Mohali and payments were made by the complainant at Mohali and draw of lots were also conducted for the above allotments at Mohali. The finding of District Forum Mohali on this point cannot be said to be erroneous in any manner. We are strictly governed by Section 11 of the Act in this regard and the jurisdiction of District Forum cannot be taken away from Mohali and conferred upon Delhi Forum exclusively on the basis of some terms of brochure. The statutory jurisdiction conferred on District Forum Mohali cannot be taken away by means of some agreement between the parties. The Apex Court has held in "Lucknow Development Authority Vs. M.K. Gupta" 1994 (1)CPC- 1 that a Government or semi-Government body or a local authority is as much amendable to the Act as any private body rendering similar service. When any statutory authority develops land or allots a site or First Appeal No.810 of 2014 21 constructs a house for the benefits of common man, it is as much a service as by a builder or contractor. If the service is defective, then it would be unfair trade practice, as defined under the Act. Consequently, in view of above authority and Section 11 of the Act, the order of the District Forum holding that it has territorial jurisdiction to try the case is sustainable and is affirmed protanto in this appeal.
11. The next point adjudicated before us by the OPs is that complaint preferred by the complainant under Section 12 of the Act is not maintainable because OP is a no profit no loss body and the services availed by the complainant is not covered under the definition of services under the Act. We have examined the record of the case and are in agreement with the findings of the District Forum that OPs have not produced any evidence consisting of statements of accounts/balance sheets on the record to prove this point. Even otherwise, no profit no loss basis simply cannot take it out of the purview of the Act as per the definition of consumer, given in Section 2(d) of the Act infra.
"(i) Any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such good other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does First Appeal No.810 of 2014 22 not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) [hires or avails of] any services for a consideration which has been paid or promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose];
[Explanation - For the purpose of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment;] Section 2(o) of Act further comprehends the housing construction as service by virtue of Act No.50 of 1993 enforced with effect from 18.06.1993. The OPs have received the consideration for the flat as per allotment letter Ex.C-2, it cannot be said that complainant is not the consumer of the OPs and contention raised by the OPs to this effect is repelled by us.
12. Undisputedly, the complainant is the allottee/ beneficiary of the flat of categories, as set out in the brochure. The point falling for adjudication before us is as to whether there is delay in First Appeal No.810 of 2014 23 completion of project and handing over the complete possession thereof to the allottees/beneficiaries. Our attention has been drawn to the allotment letter in this case, the first instalment of 30% minus the earnest money of Rs.60,000/- was to be deposited alongwith application by the allotte. Separate call up notices would be given to the complainant for payment of subsequent instalments, since scheme is self-financed and beneficiary was advised to pay the due instalments in time. Ex.C-12 is the vital document on the record dated 18.09.2013 for final call up letter to the complainant by the OPs directing him to pay the net amount, which was due from him. Undisputedly, the project was to be completed within 30 months. The submission of the complainant that OP floated the above Housing Complex at Mohali in March, 2007 and 30 months period would expire on December, 2009 and final possessions of the complete flat has not yet been delivered to him. Ex.C-3 is the copy of letter dated 31-08-2008 from OP to complainant to the effect that the construction at the project has since commenced. Dr. B.R. Ambedkar National Institute of Technology (Deemed University) Jalandhar was appointed as technical consultant for the project for checking of structural designs is designated to provide technical guidance during construction stages of the project, vide Ex.C-4. It is recorded in it that during approval, the plans of the area of dwelling units were modified. We, thus, conclude from Ex.C-4 that for the first time, the OPs gave out to the beneficiaries that project had been approved by the Local Authorities and it is dated 15th First Appeal No.810 of 2014 24 December, 2008. There has been commensurate increase in the dwelling units due to increase in the SBA of the same. The configuration of the Multi storied blocks stood finalized and option was given to the beneficiaries to withdraw from the scheme or to make payment separately. Even if we take that the authorities approved the project on 15th December, 2008, as per letter Ex.C-4 of the OPs, the said period of 30 months of construction would expire on 15.06.2011. On 15.06.2011, there was no completion for possession of delivery in the project to the allottees. It was further stipulated that in case delay took place, the electricity would be provided by the contractor through generators and beneficiaries were asked to shift to the flats and possession was to be given by July 2012 to them. The project was not yet complete and OPs offered to deliver the possession belatedly after expiry of period of 30 months from 15.12.2008 stating that authorities have approved the project. Even if, the date of commencement of construction is counted from 15.12.2008, when the OPs gave out to the beneficiaries that authorities had approved the plan, even then the construction was not completed within 30 months therefrom and even the project was not completed for delivery of possession to the beneficiaries. Our attention has been drawn to Ex.C-13 as placed on record by the complainant to the effect that there was no permanent electricity connection in the project and electricity was improvisedly to be provided through DG sets only except for ACs, heaters and geysers till receipt of permanent electricity connection from PSPCL First Appeal No.810 of 2014 25 by OP. The possession for delivery of flats to the beneficiaries was not yet completed as gathered by us from Ex.C-13. We endorse the findings of District Forum on this point that even on 18.09.2013 vide Ex.C-13, the possession was not completed and perfect completion certificate was not yet obtained by the OPs to this project for delivery of possession to the beneficiaries. The OP would like to issue the formal notice to all other beneficiaries about that development shortly from 21st December, 2013. We , thus, confirm this finding of fact, as reached by the District Forum, that the possession will be given to the beneficiaries by January 2014 or within one month from energisation of the transformer by PSPCL, whichever is later. There was no complete completion certificate for delivery of possession of the flat to the complainant till January 2014. The finding of fact regarding deficient service in late delivery of possession to the beneficiaries, despite charging instalments from them for large amounts stands established on the record. Reference be made to law laid down by the National Commission in "Puneet Malhotra Vs. Parsvnath Developers Ltd." 2015(1)CLT-552/553, wherein it has been held that as per the agreement between the parties, the complainant was required to pay interest @ 24% per annum in the event of delay on his part in making payment to the opposite party- Logically, if the seller is charging interest from the buyer @ 24% per annum, it should have no hesitation in paying the interest at the same rate to him in the event of its failure to complete the construction of the flat within the time frame agreed between the First Appeal No.810 of 2014 26 parties. Similarly law laid down by Chandigarh State Consumer Disputes Redressal Commission, UT Chandigarh has been cited in "Yuvraj Shori (Dr.) & others Vs. M/s Premium Acre Infratech Pvt. Ltd. & another" 2015(3) CLT-565, wherein it has been held that buyer agreement would prevail over the brochure once the buyers agreement was executed between the parties. Consequently, finding of the District Forum is affirmed on this count that OPs are deficient in not delivering the possession to the complainant, despite receipt of major amounts of money upto 5th instalment from him.
13. The next point agitated in these appeals is that OPs enhanced the tentative price of the project and have not yet finally concluded it vide Ex.C-13. In the brochure, the cost of flats has been indicated to be tentative. The submission of the complainant is that OPs arbitrary charged the price time and again enhancing it without any valid ground. The main reliance has been put upon Ex.C-13 that actual cost of flats has not yet been concluded by the OPs and they continued enhancing the price repeatedly, which is deficiency in service on their part. We hold as laid down by the National Commission in "Delhi Development Authority Vs. Kamini Chopra" 1996(1) CPC-150/151 that fixation of price is within the domain of the seller exclusively and seller has to fix the price. However, seller cannot keep the buyer on tenter-hooks about the same and has to make the same final sooner or later. We have also examined law cited by OPs in "Fuljit Kaur Vs. State of Punjab & other" 2010(3)RCR(Civil)-322/323 (SC) that unless the tentative First Appeal No.810 of 2014 27 price is shown to be fixed in an arbitrary manner, the allottee cannot refuse to pay the same. However, the proposition of law laid down by the Apex Court in the above authority is not applicable to the facts of the cases. The matter pertains that the OPs despite charging major amounts upto 5th instalment have not completed the project and issued the call up notice for deposit of 6th instalment without performing their obligation. The seller cannot repeatedly keep the swords hanging over the buyer for eternity over this matter. On the other hand, the submission of the OPs is that there were some ineluctable circumstances, which intervened and led to the increase in the prices and it cannot be said to be deficiency in service, as developing authority has the right to allot flat at tentative price, which can be fixed keeping in view all the attending circumstances. The final completion certificate has not yet been obtained by the OPs and it is still uncertain as to when it would be finally obtained by the OPs from the competent authorities to enable the beneficiaries to take the complete and final possession of the flats in the project. We do not dispute this proposition of law laid down by Apex Court in "Bangalore Development Authority Vs. Syndicate Bank" 2007 CTJ-689 (SC), wherein it has been held that relationship between Development Authority and an applicant for allotment is that of a seller and buyer, and therefore governed by law of contracts. The compensation can be awarded to the consumer under the head of mental agony and suffering, by applying the principle of Administrative Law, where the seller being a statutory authority acts First Appeal No.810 of 2014 28 negligently, arbitrarily or capriciously. The compensation can be awarded for mental harassment against the seller on this point as laid down by the Apex Court (Supra). The OPs relied upon law laid down in "M/s Eider PWI Communications Limited Vs. M/s Creative Engineering and Construction Company" 1998(1) CPC- 595 by Consumer Disputes Redressal Commission: Union Territory Chandigarh, to the effect that in delay of 221 day in completing the constructions, no affidavit of architect associated with the construction was produced, hence complaint was dismissed. We are of this view that this authority is distinguishable from the fact situation of this case. As proved on record, the construction started in the year 2008 only and 30 months period has to be counted therefrom. Delay of two years could be acceptable in certain cases, but herein the delays continue till 2014. The OPs relied upon law laid down by the Apex Court in "Commissioner of Customs (Preventive Vs. Aafloat Taxtiles India Pvt. Lt. and others"
2009(11) SCC-18, that it is bounden duty of purchaser to make all necessary inquiries and has to be cautious and on law laid down in "N. Suresh Vs. Indian Bank, MICRO ARM Branch" 2013(3) MLJ- 885 by Madras High Court that purchasers were clearly told to satisfy themselves about the nature of property before purchase. We find that cited authorities are not applicable to cases in hand due to different proposition of facts involved in them.
14. The next point of for consideration is with regard to lack of permanent electricity connection from PSPCL to the First Appeal No.810 of 2014 29 allottees/beneficiaries. The OPs agreed provisionally to provide electricity through DG sets, which were meager to run ACs, heaters and geysers unless and until the permanent electricity connection is granted by the PSPCL in the area. The possession is not complete as offered by the OPs to the beneficiaries without complete provision of electricity, which is sine qua non for the comfortable living of the residents in the present system. The residents of flats cannot enjoy the amenities without the use of electricity in the shape of ACs, heaters and geysers in the required weather. The complainant has deposited most of the instalments with the OPs and despite the same, they have not yet completed the facilities and eventually proceeded to recover even the last remaining 6th instalment amounts from him.
15. As a result of our above discussions, we hold that the final call up notice for payment of last 6th instalment and cost of parking without there being any amenities and facilities of electricity, parking space and imminent danger to the lives of the residents of the project, are clearly deficient service on the part of the OPs. The complainant/beneficiary paid upto the 5th instalments to the OPs and 6th instalment is the last instalment and complainant is willing to pay the same provided complete possession with all amenities and facilities was delivered to them with due approval from the Competent Authorities. Reference be made to law laid down in case "Central Government Employees Welfare Housing Organization Vs. Anil Mishra" 2010(3) CPC.564/565 wherein it has been held by First Appeal No.810 of 2014 30 the National Commission that when allotment of DX became available complainant raised his demand contending that enhanced rate of interest could not be demanded from him as his demand was not beyond limitation. District Forum allowed complaint holding that enhanced rate of interest could not be charged. The District Forum termed the final call up demand notice Ex.C-12 and offer of possession Ex.C-13 as non-operative and unjustified without completion certificate of possession with entire amenities.
16. Consequently, we hold that the District Forum has rightly directed the OPs to withdraw the final call up letter Ex.C-12 and Ex.C-13 and to issue the fresh letter of offer of possession detailing approvals/sanctions obtained by the OPs from various Authorities dealing with the project and the date of offer of complete possession letter with all such amenities and approvals and only then to issue fresh letter of possession with the remaining demands of instalments from the allottees. The OPs shall not charge any interest on the last demanded amount as per Ex.C-12 from the complainant till payment in pursuance of the demand notice for the same. The Apex Court held in "Ghaziabad Development Authority Vs. Balbir Singh"
2004(1) CPC-660/661 that when public body is found negligent in its duty and has acted in an arbitrary and capricious manner causing mental agony to the consumer, compensation can be awarded not only for loss of goods but also for causing mental agony due to rendering of deficient service. The Apex Court has also held that there is no question of escalated price of construction when matter First Appeal No.810 of 2014 31 relates to a flat as is the case in hand. Reference be made to law laid down in "Tamilnadu Consumer Protection Organization & others Vs. Sahara Prime City Ltd. & other 2015(1)CLT-218/219"
by Tamil Nadu State Consumer Commission, Chennai, wherein it has been held that if there is delay in possession, interest could be awarded @24% per annum for the money paid by the complainant and same is required to be dismissed with punitive damages of Rs.1,00,000/-. The District Forum awarded compensation of Rs.2,25,000/- to the beneficiaries in each case and Rs.22,000/- as costs of litigation. We find that order of the District Forum is reasonable and since this project is of no profit no loss basis, hence we find no ground to enhance the amount of compensation in the appeal filed by the complaiannt.
17. As a result of our above discussions, we find no merit in first appeal no.1008 of 2014 preferred by CGEWHO (OP) and the same are hereby dismissed. The first appeal no.810 of 2014 directed by the complainant for enhancement of compensation as awarded by the District Forum Mohali is hereby dismissed being without any merit, as sufficient compensation has been awarded by the District Forum Mohali in this case.
18. The appellants of first appeal no.1008 of 2014 had deposited the amount of Rs.25,000/- with this Commission at the time of filing the appeal. This amount alongwith interest, which accrued thereon, if any, be remitted by the Registry to the First Appeal No.810 of 2014 32 complainant, now respondent of this appeal by way of a crossed cheque/demand draft after the expiry of 45 days.
19. Arguments in above referred appeals were heard on 05.04.2016 and the orders were reserved. Copies of the orders be communicated to the parties as per rules.
20. The appeals could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (H.S.GURAM) MEMBER April 12, 2016 (MM)