National Consumer Disputes Redressal
Rameshwar Prasad Shrivastava & 18 Ors., vs M/S Dwarkadhis Projects Pvt. Ltd. & 2 ... on 13 February, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 250 OF 2013 1. RAMESHWAR PRASAD SHRIVASTAVA & 18 ORS., S/o Shri Rabinder Prasad Shrivastava, H.No. 344, Gangotri Apartments, Pocket-I, Sector-12, Dwarka, NEW DELHI - 110075. ...........Complainant(s) Versus 1. M/s DWARKADHIS PROJECTS PVT. LTD. & 2 ORS., 707, Gopal Heights, D-9, Netaji Subhash Place, Pitampura, DELHI - 110034. 2. State of Haryana through its Secretary, M/o Housing & Urban Development, Chandigarh Secretariate, CHANDIGARH. 3. The Director General Town & Country Planning-Haryana, Town & Country Planning Department, Sector-18, CHANDIGARH. 4. The Director General Town & Country Planning-Haryana, Town & Country Planning Department, Sector-18, CHANDIGARH. ...........Opp.Party(s)
BEFORE: HON'BLE MRS. REKHA GUPTA,PRESIDING MEMBER HON'BLE MR. ANUP K THAKUR,MEMBER
For the Complainant : Ms.Priyanjali Singh, Advocate For the Opp.Party : For the Opposite Party : Mr. V. V. Manoharan, Advocate
For Applicant--Mr. Anil Nanda : Nemo
For Applicant--Mr. Neeraj Dewan : Nemo
Dated : 13 Feb 2018 ORDER
The present Complaint has been filed by 19 Complainants. However, Complainant No.8--Gurpreet Singh Bhandari was deleted from the array of the Parties vide order dated 11.08.2015, leaving 18 Complainants.
2. The Complaint has been filed by the Complainant with various allegations of deficiency of service allegedly committed by the Opposite Party seeking various reliefs. The prayer clause of the Complaint reads as under:-
"1. For delayed possession, this Hon'ble Commission may direct the Respondent No.1 to provide a tower-wise schedule for completion and handing over the possession of all the flats in the " Aravali Heights" Multi-storeyed Group Housing Complex Complex) Located at Sector-24, Dharuhera on the basis of current progress & development activities.
Direct the Respondent No.1 to provide tower-wise construction status achieved so far for each tower in the complex with corresponding dates of achieving completion and an honest and logical tower-wise details/list of unfinished construction tasks and corresponding schedule of completion thereof.
Payment of penalty @ 36 percent per annum, compounded annually (at the prevailing market rate) be imposed on the total amount paid to the builder so far by the apartment buyers and be directed to be paid immediately or at the time of possession to be calculated on the basis explained in the Complaint.
2. Declare that the demand raised by the Respondent No.1 for the enhanced/extra EDC by including interest thereon as null and void Direct the Respondent No.1 to provide details of the initial EDC and EDC Charge and Calculations thereof in terms of the latest directive/memo issued by the official Respondents including the status of its payment by the Builder to the DGTCP--Haryana including their payments by the Respondent No.1 to the DGTCP--Haryana.
Direct the builder to raise fresh/rectified demand bills/letter towards EDC Charges after addressing the stated issues-supra.
Direct the adjustment of the extra amounts paid by some of the Buyers against the EDC with interest @ 24% thereon against the fresh computations/bills raised as above.
Direct the Respondent No.1 to maintain transparency in the matter of payment of EDC Charges to the Authorities by displaying the status on their Website so as to restore Buyer Confidence.
3. Direct the Respondent No.1 to refund the open stilt car parking charges in the sum of Rs.75,000/- to Rs.1,50,000/- to the buyers and the community building membership charges--these being not saleable and part of common areas and not belonging to the Respondent No.1.
4. Direct the Respondent No.1 to refrain from raising illegal demands of new PLC and immediately withdraw their demand letters to customers of some of the units demanding new PLC under filmsy grounds.
Direct the Respondent No.1 to refund with 36% interest the PLC money claimed from all those consumer/Complainants whose flats have ceased to remain Green Facing/falling under PLC of Green facing.
5. Direct the Respondent No.1 to refrain from raising illegal demands of the additional electricity charges, and to immediately withdraw their demand letters to customers of some of the units demanding the additional electricity charges under filmsy grounds.
6. Direct the Respondent No.1 to refrain from raising illegal demands of the electricity charges, as the said demand and the affixation of the electricity charges is unilateral, and any such charges towards the electricity are payable when the possession is given, and for an amount, which is determined in consultation with the buyers.
7. Direct the Respondent No.1 to refrain from raising illegal demands of the Maintenance Charges, as the said charges are payable when the possession is given to the buyers after completing the flat in all respect.
8. Direct the Respondent No.1 to pay penalty for the mental harassment caused to the Complainants @ 10,00,000/-(Rupees Ten Lakhs) per Complainant.
9. Direct the Respondent No.1 to pay costs towards Legal expenditure @ Rs.50,000/-(Rupees Fifty Thousand) per Complainant.
10. Direct the Respondent No.1 to complete the project and the flats with all the amenities and facilities including water connection, electricity connection, power back up, roads, park, parking space, club house, street lighting, sewage drains, rainwater drains, fire-fighting systems etc.
11. Declare the aforesaid legal omissions and commissions as amounting deception, deficiency in service and amounts to unfair trade practice together with monetary compensation /penalty/etc. as prayed in the complaint for the gross mental tension and harassment."
3. As per Section 12(1)(c) of the Consumer Protection Act, 1986(for short, the 'Act') as the Complaint has been filed by more than one consumer, permission had to be sought, on behalf of, or for the benefit of all, consumers so interested by a requisite application. Relevant extract of Section 12 (1) (c) of the Act read as follows;
"[12. Manner in which complaint shall be made.--(1) A complaint in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided may be filed with a District Forum by -
(a) xxxx xxxxx xxxxx xxxxx; (b) xxxxx xxxxx xxxxx xxxxx;
(c) one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested; or
(d) xxxx xxxx xxxx xxxx."
4. A perusal of the record clearly establishes that at the time of filing of this Complaint, no application under Section 12(1) (c) seeking permission to file joint Complaint had been filed by the Complainants, though there were 19 Complainants in this Complaint. Thereafter, an I.A.No.12680 of 2017 has been filed by the Complainants seeking amendment of the Complaint. The said application also contained an Application under Section 12(1) (c) of the Act.
5. Ms. Priyanjali Singh, Advocate for the Complainants at the time of arguments in this case, on instructions, stated that the Complainants did not wish to press I.A. No.12680 of 2017 seeking amendment of the Complaint and requested the Complaint should be dealt with as filed earlier. Hence, I.A. No.12680 of 2017 was dismissed as not pressed.
6. As a consequence, we find that there is no application under Section 12(1) (c) of the Act seeking permission to file a joint Complaint on behalf of 18 Complainants. Section 12 (1) (c) of the Act is a special provision, which permits filing of class action complaint by more than one consumer provided they have same interest in the outcome of the complaint and the requirement of Section 12(1) (c) are fulfilled.
7. The Larger Bench comprising of three Members of this Commission vide order dated 07.10.2016 in case titled as Ambrish Kumar Shukla and Ors. Vs. Ferrous Infrastructure Pvt. Ltd, observed as under;
"The primary object behind permitting a class action such as a complaint under Section 12(1) (c) of the Consumer Protection Act being to facilitate the decision of a consumer dispute in which a large number of consumers are interested, without recourse to each of them filing an individual complaint, it is necessary that such a complaint is filed on behalf of or for the benefit of all the persons having such a community of interest. A complaint on behalf of only some of them therefore will not be maintainable. If for instance, 100 flat buyers / plot buyers in a project have a common grievance against the Builder / Developer and a complaint under Section 12(1)(c) of the Consumer Protection Act is filed on behalf of or for the benefit of say 10 of them, the primary purpose behind permitting a class action will not be achieved, since the remaining 90 aggrieved persons will be compelled either to file individual complaints or to file complaints on behalf of or for the benefit of the different group of purchasers in the same project. This, in our view, could not have been the Legislative intent. The term 'persons so interested' and 'persons having the same interest' used in Section 12(1)(c) mean, the persons having a common grievance against the same service provider. The use of the words "all consumers so interested' and "on behalf of or for the benefit of all consumers so interested", in Section 12(1)(c) leaves no doubt that such a complaint must necessarily be filed on behalf of or for the benefit of all the persons having a common grievance, seeking a common relief and consequently having a community of interest against the same service provider."
8. In the instant case, as mentioned above, no application under Section 12 (1) (c) of the Act has been filed by the Complainants seeking permission to file a joint Complaint/Class Action Suit, which is mandatory provision under the Act and hence, the present Complaint is not maintainable and deserves to be dismissed solely on this ground. Accordingly, the Complaint is dismissed being not maintainable.
...................... REKHA GUPTA PRESIDING MEMBER ...................... ANUP K THAKUR MEMBER