Complainant by Adv. Gajendra Vaiti
Opponent by Adv. Spardha Sharma
ORDER
(Per- Mr. S. S. Vyavahare, Hon’ble President.)
1) The complainant has filed this complainant under Section 12 of the Consumer Protection Act, against the opponent for getting compensation alleging deficiency of service and on its part.
2) Facts giving rise to the present complaint in short are as under.
3) The opponent is national aviation company of India who has undertaken a scheme to construct residences, buildings for their employees. Shri V.A. Pereira is in the employment of Air India. The complainant who is the resident of Mumbai is an employee of the opponent. It is the contention of the complainant that the opponent has acquired land bearing plot No. 24, Sector-27 on lease for constructing housing accommodation for its employee. Said land was acquired on lease from CIDCO. It is the contention of the complainant that initially the opponent wanted to construct housing accommodation for its employee as servant quarters. Accordingly, some residential accommodations were also constructed. However, nobody has turned up to occupy the said quarters and for more than 10 to 12 years those premises were lying vacant. Therefore the opponent has decided to construct accommodation on ownership basis for the employees of opponent. Accordingly notice was published on 09/10/1998. In pursuance to the said subject on 04/11/2004 another notice was published and the employees were directed to pay Rs.2,500/- by demand draft towards the booking of B-Type flat. The complainant was interested in purchasing the accommodation and who was in need of accommodation had paid Rs.2,500/- by demand draft to the opponent. It is further contention of the complainant that opponent has agreed to provide housing loan facility and to provide subsidy to the employee so as to attract the employees for purchasing these accommodation. On 16/09/2005 the complainant was directed to pay 10% of cost of the flat and according the complainant has deposited Rs.1,10,034/- with the opponent towards the cost of the flat which was Type-B, 2 BHK admeasuring 795 sq. feet @1,350/- per sq. feet. It is further contention of the complainant that inspite of paying booking value and 10% amount towards the cost of the flat the opponent has failed to complete the construction of flat. On repeated counts the complainant make enquiry with the opponent. The complainant made several communications to number of authorities of the opponent. The complainant also contacted the officer of CUDCO but nobody has taken the cognizance of the complainant. It is further contention of the complainant that on the enquiry with the opponent it was revealed to him that, the opponent is not getting permission from CIDCO to carry out the construction for housing project and which was obligatory. The opponent has not disclosed to the complainant about the pre-sanctioned from CIDCO to carry out the construction. Complainant came to know that initially the opponent was constructing staff quarters, however, the said project was not completed. Since the opponent wanted to construct accommodation for its employee, there was change of user of the land and therefore CIDCO was not giving permission. It is further contention of the complainant that opponent called upon the complainant to pay Rs,20,46,605/- towards the cost of the flat plus registration and stamp duty of Rs.1,52,848/- and Rs.21,565/- towards the expenses. The complainant has also deposited the same amount with the opponent. On 08/02/2012 the complainant has received the possession of his flat. It is further contention of the complainant that he has deposited the amount of stamp duty with the opponent in the year 2010. However, till 13/12/2013 the opponent has retained the said stamp duty with it and did not pay towards the stamp duty to the Government. On 13/12/2013 the said amount of stamp duty was returned to the complainant. Therefore the complainant would be required to pay exorbitant stamp duty of his flat. The opponent till today has not issued registered documents in favour of complainant. Therefore the opponent has also committed the breach of the directions of Bombay High Court in writ petition No. 336/2010. Therefore the alleged act on the part of the opponent amounts to deficiency of service and unfair trade practice. The complainant therefore by filing this complaint has claimed compensation delay in giving possession of his flat. He also claimed interest on the amount of registration charges which were lying with the opponent from 2010 to 2013 and compensation for mental agony and cost of the complaint.
4) The opponent has resisted the complaint by filing its written statement wherein it is contended that complainant’s complaint is false, frivolous and not based on true facts. The opponent has denied all adverse allegations made by the complainant in respect of deficiency of service. The opponent has also challenged the maintainability of the complain ton the ground that, the complainant who is in the employment of the opponent cannot take the recourse of consumer protection act. According to the opponent there is no relationship of consumer and service provider between complainant and opponent. The opponent does not dispute the housing scheme introduced by it for the employees of the opponent in concessional rate and notices issued from time to time in that context. The booking amount of Rs.2,500/- the flat booked by the complainant, the rate of the said flat and the area of the said flat is not denied. The opponent also admits the 10% amount of the flat deposited by the complainant. The opponent submit that, the complainant was directed to deposit 20% of cost out of which he was asked to deposit 10% and remaining 10% amount after getting no objection from CIDCO. According to the opponent the permission of CIDCO was mandatory provision for getting conveyance of the property in the name of opponent. According to opponent required permission for CIDCO was awaiting and therefore in absence of NOC from CIDCO the opponent was unable to initiate the sale of flat tot eh complainant and other employee. Therefore possession of the flat was delayed. The opponent submits that, in entire transaction with the complainant the opponent has acted fairly and reasonably. There is no deficiency of service. Opponent therefore prays to reject the complaint.
5) On respective contentions of the parties following points arise for our consideration. Our findings are recorded against the same.
POINTS
- Does the complainant prove that, the opponent has indulged in deficiency of service and unfair trade practice in the sale transaction of the flat to the complainant? Proved
- Whether complainant is entitled to get compensation? Yes
- What order? As per final order.
REASONS
Admitted Facts
6)Before going to the evidence on record it will not be out of place to go through some of the facts which are undisputed. It is not disputed position that initially the opponent has decide to construct staff quarters on the open land in dispute with his lease to them by CIDCO. The notice dated 08/10/1998 for inviting applications for residential quarters on ownership basis for the employee of the opponent for which the rate was fixed Rs.1/- per sq. meter is not disputed. It is also admitted positionthat vide notice dated 04/11/2004 the said rate of flat was enhance from Rs.1350/- to Rs.1500/- per sq. feet. The booking of the flat by the complainant as well as payment of Rs.2/- and 10% of the cost of the price by him on 13/01/2005 is not disputed. It is also admitted position that on 07/12/2010 the complainant had paid Rs.20/- plus Rs.1,52,848/- towards stamp duty to the opponent. It is admitted position that complainant has received the possession of his flat on 08/12/2012.
7)In view of above admitted facts the complainant in order to prove deficiency of service and unfair trade practice on part of opponent has adduce his evidence affidavit, written arguments, his correspondence with the opponent.
8)As against this opponent in support of its written statement has filed evidence affidavit, written arguments. The opponent has relied on the judgment of Bombay High Court in Writ Petition No. 336/2010 to justify the delay for giving possession.
9)We have perused the documents filed on record. We also perused the evidence adduced by the respective sides as well as the oral arguments advanced on behalf of both sides. Perusal of the same it is seen that, initially the opponent has decided to construct staff quarters and since the opponent was not getting any response and the staff quarters were lying vacant the opponent has changed its mind and decided to use the said open land for constructing residential flat on ownership basis for the employees of the opponent. Though an attempt has been made by the opponent to justify the delay that CIDCO was not granting permission for change of user and CIDCO has claimed excess amount for granting permission. Therefore rate of construction was increase even then the fact remains that when in the year 1998 when the applications were invited form the employees for booking of residential flat no permission for change of user was obtained from CIDCO. The very act of the opponent for issuing notice to the employee for getting residential flat on ownership basis without getting proper sanction from CIDCO for change of user amounts to unfair trade practice. Even though the opponent has increased the rate of construction by issuing notice in 2004 even then till 2012 the was delayed. The record shows that, in the year 2005 complainant and other employee have paid booking value of Rs.2,500/- and also paid 10% of the cost of the flat. Since 2005 the complainant was required to run from pillar to post for getting possession. However, the reason best known to the opponent they have not completed the construction till 2012 nor delivered the possession of the flat till 2012 to the complainant. Though an attempt has been made by the opponent to show that, because of the writ petition pending in Bombay High Court the possession of the flat was delayed though it appears from the record that in the said writ petition the Hon’ble High Court has directed to pay the price of the flat in respect of employee who have paid 10% of the price of the flat even then the order of the High Court shows that Hon’ble High Court has directed to handover the flats to the employee within two weeks from the date of execution of sale document by CIDCO. Now, in present case the complainant has deposited Rs.20/- on 07/12/2010 and has also paid stamp duty of Rs.1,52,848/-. However of paying said amount on 07/12/2010 as well as amount of stamp duty the possession was delayed till 08/12/2012. This goes unsaying that, the opponent has not only floated the orders of the High Court but also has indulged in deficiency of service. The height of it is that, the amount of stamp duty charges which were paid by the complainant on 07/12/2010 was retained by the opponent till 13/12/2013 and did not pay the same to the Government. With the result now, the complainant will be required to pay stamp duty on his flat as per market rate if he wants to get the flat registered. The excess mount, the complainant has to pay due to the lethargy and negligent on the part of the opponent. Therefore we have no hesitation to conclude that opponent has indulged in deficiency of service and unfair trade practice by making delay in giving possession of the flat to the complainant as well as unnecessarily retaining the stamp duty amount for three years without justification.
10)An attempt has been made by the opponent on relying upon the judgment of Supreme Court reported in the case of Sain Bhagat V/s. District Health Service Haryana wherein the Apex Court has held that the dispute raised by Government Servant regarding service condition, for payment of gratuity and G.P.F. does not lye in the Consumer Forum and therefore the Government Servant does not fall within the definition of Section 2 (1) (d). From the very fact of the case it is per say clear that though the complainant is an employee of the opponent and opponent is run by Central Government, the nature of dispute pending between complainant and opponent is not pertaining to service condition not fro gratuity and G.P.F. The present transactions between the parties have no nexus with nature of duty as well as service condition of the complainant. Therefore by any stretch of imagination said judgment does not assist to the opponent.
11)Therefore from the above discussion we decide both points in affirmative and pass following order.
ORDER
- Complaint is allowed.
- It is hereby declared that the opponent has indulged in deficiency of service and unfair trade practice by making delay in giving possession of the flat to the complainant and by retaining his registration amount for three years.
- The opponent is directed to pay Rs.1,00,000/- within two months from the date of receipt of the order towards compensation for making delay in delivering possession of the flat to the complainant. Failing to which the opponent is further directed to pay 10% interest on said amount from the date of order till date of retaliation.
- The opponent is further directed to pay Rs.25,000/- for compensation for mental agony and Rs.10,000/- for cost of the complaint.
