State Consumer Disputes Redressal Commission
Lt. Col Moolraj Singh Sarmal vs Managing Director, Army Welfare ... on 6 November, 2020
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Review Application No.7 of 2020
In
Consumer Complaint No.516 of 2019
Date of Institution : 19.10.2020
Order reserved on : 22.10.2020
Date of Decision : 06.11.2020
Lt. Col. Moolraj Singh Sarmal S/o Sh. Amar Singh, Super Delux
Apartment, Flat No.-R-0304, Harbhajan Vihar, AWHO, Sector-114,
Mohali-140307.
.....Applicant/Complainant
Versus
1. Managing Director, Army Welfare Housing Organisation, South
Hutments, Kashmir House, Rajaji Marg, New Delhi-110011,
through its Managing Director.
Email : [email protected]
2. Project Director, Army Welfare Housing Organisation, having its
office at Plot no.BB-1, CC-1, AWHO, Sector-114, S.A.S. Nagar,
Mohali, Punjab.
.....Respondents/Opposite Parties
2) Review Application No.8 of 2020
In
Consumer Complaint No.575 of 2019
Date of Institution : 19.10.2020
Order reserved on : 22.10.2020
Date of Decision : 06.11.2020
Col. Jaimal Sandhu S/o (Late) Sh. Kashmir Singh, R/o Flat No.D-403,
Harbhajan Vihar, AWHO Sector-114, Mohali, P.O. Landran, PIN
No.140307.
.....Applicant/Complainant
Versus
1. Managing Director, Army Welfare Housing Organisation, South
Hutments, Kashmir House, Rajaji Marg, New Delhi-110011,
through its Managing Director.
Email : [email protected]
Review Application No.7 of 2020 2
In
Consumer Complaint No.516 of 2019
2. Project Director, Army Welfare Housing Organisation,
having its office at Plot no.BB-1, CC-1, AWHO, Sector-114,
S.A.S. Nagar, Mohali, Punjab.
Email : [email protected]
.....Respondents/Opposite Parties
3) Review Application No.9 of 2020
In
Consumer Complaint No.745 of 2019
Date of Institution : 19.10.2020
Order reserved on : 22.10.2020
Date of Decision : 06.11.2020
Hav Kushal Singh S/o Sh. Rachpal Singh, Flat No.A-0201, Harbhajan
Vihar, AWHO, Sector-114, Mohali,140307.
.....Applicant/Complainant
Versus
1. Managing Director, Army Welfare Housing Organisation, South
Hutments, Kashmir House, Rajaji Marg, New Delhi-110011,
through its Managing Director.
Email : [email protected]
2. Project Director, Army Welfare Housing Organisation, having its
office at Plot no.BB-1, CC-1, AWHO, Sector-114, S.A.S. Nagar,
Mohali, Punjab.
Email : [email protected]
.....Respondents/Opposite Parties
AND
4) Review Application No.10 of 2020
In
Consumer Complaint No.746 of 2019
Date of Institution : 19.10.2020
Order reserved on : 22.10.2020
Date of Decision : 06.11.2020
Lt. Col. Jai Ram Kathiyal S/o Sh. Johandha Ramh, Flat No.V-0702,
Harbhajan Vihar, AWHO Sector-114, Mohali 140307.
.....Applicant/Complainant
Versus
Review Application No.7 of 2020 3
In
Consumer Complaint No.516 of 2019
1. Managing Director, Army Welfare Housing Organisation, South
Hutments, Kashmir House, Rajaji Marg, New Delhi-110011,
through its Managing Director.
Email : [email protected]
2. Army Welfare Housing Organisation, having its office at Plot
no.BB-1, CC-1, AWHO, Sector-114, S.A.S. Nagar, Mohali,
Punjab, through its Regional Director
Email : [email protected]
.....Respondents/Opposite Parties
Review Applications under Section 50 of the
Consumer Protection Act, 2019.
Quorum:-
Mr. Rajinder Kumar Goyal, Presiding Member
Mrs. Kiran Sibal, Member Present:-
For the Applicants/Complainants: Sh. V.K. Padwal, Advocate with Sh. J.S. Bath, Advocate KIRAN SIBAL, MEMBER:
This order shall dispose off the above four review applications, as all the applications have been filed by the applicants to review the order dated 07.09.2020 and the facts and law point in these applications are similar. For the sake of convenience facts have been taken from review application no.7 of 2020 titled as "Lt. Col. Moolraj Singh Sarmal Vs. MD, Army Welfare Housing Organization & another"
Review Application No.7 of 2020 in Consumer Complaint No.516 of 2019
2. The applicant/complainant has filed the present Review Application with a prayer to review the order dated 07.09.2020 passed Review Application No.7 of 2020 4 In Consumer Complaint No.516 of 2019 by this Commission in Consumer Complaint No.516 of 2019, vide which the complaint was dismissed.
3. Brief facts, as set out in the application, are that the order dated 07.09.2020 passed by Additional Bench-1 is comprised of surmises and conjectures and, therefore, is liable to be set aside. The applicant has reproduced the relevant portion of order under review as under:-
"That while discussing the complaint filed by the complainant that cause of action had occurred in this case on 20.06.2018, when complainant had taken the possession and complainant filed the complaint on 04.07.2019 before the expiry of limitation period of two years. We are of the view that OP society is not at fault and we cannot push the genuine builder/society towards the edge of devastation by accepting these types of motivational and after thought complaints. If the allottee has raised the matter before taking the possession of the unit with cogent evidence, then the matter would have been dealt differently. In this case, the complainant failed to prove the deficiency in service and unfair trade practice on the part of the OPs. The allottees were well conversant with the situation and instead of the finding lacuna in the project, they should have made joint effort to obtain the occupation certificate by filing separate applications and reminders, as OPs had done. But they chose to remain silent in this regard. In view of the above discussion, we find no merit in the complaint and the same is hereby dismissed."
The order under review is passed by this Commission without going into the merits of the case and it has completely ignored the fact that the OPs are yet to complete the project as they have failed to obtain occupation and completion certificate from the concerned authority. Even the Sewage Treatment Plant is still under construction, hence there is a major "health hazard". On an average 50-60 laborers are still working daily in complex to complete the project. Moreover, Review Application No.7 of 2020 5 In Consumer Complaint No.516 of 2019 possession was forced upon the appellant and it is a recurring cause of action against the OPs. Further the Principal Bench of this Commission has allowed similar complaints against the same OPs being Complaint No.148 of 2019 titled as "Lt. Col. Vijay Kumar Padwal Vs. MD AWHO & another) dated 04.10.2019 and complaint no.890 of 2019 titled as "Lt. Col. Tajendra Singh Vs. MD AWHO and another" and five others (total six complaints) in its order dated 31.07.2020.
4. The applicant has pleaded that in view of Section 50 of the Consumer Protection Act, 2019 [in short the "Act"] this Commission has the power to review its order.
5. We have given our thoughtful consideration to the entire matter.
6. As per Section 50 of the Act, the State Commission has been conferred the power to review its own order only, if there is an error apparent on the face of the record. It is to be seen whether there is any apparent error in the order dated 07.09.2020 or not.
7. It has been observed by this Bench that first four lines of above reproduced para of judgment infact is not the part of the order under review, which are reproduced as under:
"That while discussing the complaint filed by the complainant that cause of action had occurred in this case on 20.06.2018, when complainant had taken the possession and complainant filed the complaint on 04.07.2019 before the expiry of limitation period of two years."
The applicant is intentionally trying to mislead the Bench by inserting the mentioned lines which are not part of the order under review. Review Application No.7 of 2020 6
In Consumer Complaint No.516 of 2019
8. Now, we would like to deal with the submission of the applicant that OPs delivered the possession without occupation/completion certificate to the applicant and this Commission has ignored this point while deciding the complaint.
9. It is relevant to state here that this pleading was also raised by the applicant/complainant in the complaint also, which has been extensively dealt with in detail by this Bench in para no.22 of the order dated 07.09.2020. Even till the date of filing of the review application, applicant has not been successful to bring any cogent evidence to show the discrepancies or incompletion of the unit and the project. The applicant/complainant, who being an Army Officer, took the possession on 20.06.2018 that too without lodging any protest and with open eyes and has been enjoying the facility of all the amenities provided by the OPs since the date of taking over possession. The complainant had already availed the benefit of deferment of payment of installments due to the reasons, as discussed in detail in the order under review.
10. The OPs had completed their responsibility, as they applied for completion/occupation certificate with GMADA under Section 14 of the PAPRA. They also made efforts to delink with occupation/completion certificate from Ansal's Group and to issue separate Completion/occupation certificate. They also approached higher authorities in this case. All this shows the positive approach of OPs and we have already discussed this point in detail. According to the circumstances, OPs granted benefit to complainant for deferment of payments, which was accepted by him without any protest. The complainant was well aware that OPs had completed their Review Application No.7 of 2020 7 In Consumer Complaint No.516 of 2019 responsibility by applying for occupation/completion certificate with GMADA, but due to unavoidable circumstances, it could not be issued. The complainant could cancel the allotment of the said unit to him and could seek the refund of his amount, but instead he took the possession without lodging any protest, as OPs had granted him various benefits. The pleading of forceful possession is not acceptable from the side of the complainant who is an Indian Army Officer and this pleading is also unsupported by any cogent evidence. The Army Welfare Housing Organization (AWHO) has floated the project under welfare scheme only meant for the defence personnel. No civilian is allowed to purchase any unit or plot in the projects rolled out by AWHO in whole of India. It has been contended by OP no.1 that the society is formed for benevolent purpose i.e. making available affordable housing facility to the service and retired Army Personnel as well as to their widows in all over India on "no profit and no loss basis". It is pertinent to mention that at one stage when the project was getting delayed, the complainant and other allottees were given option by OP society to withdraw from the allotment and to seek refund, but the complainant in view of the situation of the project accepted the reasons for delay and preferred to continue with the project. In these cases, the complainants could apply for completion certification, as they had already taken the possession of the flats and residing therein, as per Section 14 of the PAPRA, 1995, which is reproduced as under:-
"14. Occupation and completion certificate :- (1) it is the responsibility of the promoter-Review Application No.7 of 2020 8
In Consumer Complaint No.516 of 2019
(i) in the case of apartments, to obtain from the authority required to do so under any law completion and occupation certificates for the building and if a promoter, within a reasonable time, after the construction of the building, does not apply for an occupation certificate from the aforesaid authority, the allottee of an apartment may apply for an occupation certificate from the said authority; and
(ii) in the case of a colony, to obtain completion certificate from the competent authority to the effect that the development works have been completed in all respects as per terms and conditions of the licence granted to him under Section 5. (2) The authority referred to in sub-section(1) shall, after satisfying itself about the agreement of sale between the promoter and the allottee, and the compliance of the building regulations and all other formalities, issue an occupation certificate."
We have seen the all fours of the matter and then decided the same on merits. Now at this belated stage, he has again raised the same question, which has already been decided by this Bench, and it seems to us that the complaint and review application have been filed only to get monetary benefits and undue advantage of the benevolent C.P. Act.
11. As far as the contention of the applicant/complainant regarding STP is concerned, it is relevant to state that there is no pleading in the complaint regarding STP and we have already discussed it in the order under review. An M.A. was filed by complainant, which was disposed of and the relevant part is reproduced as under:-
Review Application No.7 of 2020 9
In Consumer Complaint No.516 of 2019 "M.A. Nos.676, 678, 680 & 682 of 2020 (placing on record documents):
2. The above applications have been filed by OPs in above complaints, for placing on record the photographs of constructed STP Ex.R/A (colly), which are vital and material in nature so as to the controvert the false allegations levelled by the complainant against OP no.1 society with respect to the aforesaid amenities.
3. The complainants filed reply to this application. The complainants stated that application filed by OPs for placing on record additional documents is sheer abuse of process of law, as there is no provision under the Consumer Protection Act for placing on record these documents at this belated stage, when the pleadings have been completed and closed from the last five months. The OPs have been pumping the sewage wastage in the open and few photographs of the same are annexed as Ex.C-11. OPs have not obtained completion and occupation certificate from the competent authority, which is mandatory to hand over and take over the legal possession of the dwelling unit. The complainants prayed for dismissal of these applications.
4. We have heard the learned counsel for the parties and also gone through the record of the case. There is no pleading or prayer regarding sewerage treatment plant (STP) in the complaints.
So, there is no need to allow above applications. Accordingly, these applications are disposed of."
12. In support of his pleadings, the applicant has relied upon the judgment of this Commission i.e. C.C. No.148 titled as "Lt Col Vijay Kumar Padwal Vs. MD AWHO and another" decided on 04.10.2019 and complaint no.890 of 2019 titled as "Lt Col Tajendrs Singh Vs. MD AWHO and another", and five others (total six complaints), decided on 31.07.2020. It is pertinent to mention that issues with regard to reasons given for delaying the payment of installments were neither raised nor discussed in the above case. However, in these cases under review complainant accepted the Review Application No.7 of 2020 10 In Consumer Complaint No.516 of 2019 reasons for delay without any protest and that too way back in the year 2012-2013-2014. Thereafter in 2018, after making the payment of the last installment, he accepted the possession of the premises without any protest whatsoever, waving his right to do so at a later stage. These points have been discussed at length by this Bench by considering Ex.R-8, R-9 and Ex.R-10 and the relevant part of the impugned order is reproduced as under:-
18. As per Clause-10 of letter Ex.C-1, the unit was expected to be ready for handing over of possession by March, 2014. However, the possession of the unit, in question, was delivered to the complainant on 20.06.2018, vide Possession Certificate Ex.C-8. The delay in completing the project and delivering possession of the unit, in question, to the complainant has been duly admitted and explained by the OPs. The OPs failed to produce on record any cogent evidence regarding heavy rains between June, 2011 to January, 2012, like report of Meteorological Department or concerned Weather Station, but the presence of letter dated 14.02.2012 (Ex.R-8) written by OP society to complainant cannot be ignored, wherein para no.2, the OP society specifically stated as under:-
"2. Due to very heavy and incessant rains last year the physical progress is yet to match the planned progress. Pace of work has however, picked up now."
The complainant has never objected to this letter of OPs and accepted the same without any protest. OP also placed on record some newspaper cutting with regard to above rain (in above complaints). The complainant also failed to rebut this letter of OP on the record. So, we are of the view that the letter dated 14.02.2012 (Ex.R-8) of OP society is genuine one as the circumstances were not under the control of OPs at that time.
19. So far as the plea of alleged ban on mining/quarrying is concerned, it is pertinent to mention that OP society specifically mentioned in para no.2 of its letter dated 05.12.2012 (Ex.R-9) to the complainant, which is reproduced as under:
2. "It is intimated that the complete foundation work of the Review Application No.7 of 2020 11 In Consumer Complaint No.516 of 2019 project has since been completed. The super structure of all the blocks are under progress with the sample flat done up.
Progress gets affected due to intermittent ban on quarrying sand/aggregate. Notwithstanding these the efforts are on to optimize the output."
Vide this letter, OP had also rescheduled the fourth installment (which was for 20% of construction cost/cost of DU) and fifth installment (which was for 15% of construction cost/cost of DU). This letter clearly proves that due to non-availability of raw material in the market, OP society deferred the above installments, as they were not in a position to purchase the raw material from the installments paid by the allottees. Instead of keeping the installments of allottees, OP society had decided to defer the same due to above reasons. Vide letter dated 20.05.2014 (Ex.R-10), the OPs further rescheduled the payment of 3rd, 4th and 5th installments and complainant and other allottees had accepted this offer of OP without any objection. The OP society in each and every circumstance duly informed the complainant and other allottees as well, who did not raise any protest/objection at that time. They had accepted the same without any protest, as they were aware about the situation. After taking the possession of the unit without any protest and enjoying the facility of deferment of payments, the complainants and other allottees have no right to agitate the matter now which looks like an afterthought to us. So, we are of the opinion that above plea of OP society is genuine, as the situation was not under its control."
We have dealt with these cases, as per pleadings and evidence placed on record by the parties.
13. In view of above discussions, there is no apparent error in the order dated 07.09.2020 passed in the complaint and there is no merit in the Review Application and the same is hereby dismissed. Review Application No.7 of 2020 12
In Consumer Complaint No.516 of 2019 Review Application No.8 of 2020 in Consumer Complaint No.575 of 2019
14. In this application, the applicant pleaded the same averments as averred in R.A. No.7 of 2020.
15. In view of the findings recorded in Review Application no.7 of 2020, this application is also dismissed. Review Application No.9 of 2020 in Consumer Complaint No.745 of 2019
16. In this application, the applicant pleaded the same averments as averred in R.A. No.7 of 2020.
17. In view of the findings recorded in Review Application no.7 of 2020, this application is also dismissed. Review Application No.10 of 2020 in Consumer Complaint No.746 of 2019
18. In this application, the applicant pleaded the same averments as averred in R.A. No.7 of 2020.
19. In view of the findings recorded in Review Application no.7 of 2020, this application is also dismissed.
(RAJINDER KUMAR GOYAL) PRESIDING MEMBER (KIRAN SIBAL) MEMBER November 06, 2020 MM