Haryana

StateCommission

CC/251/2016

BRIG PARDEEP KUMAR KAUSHIK(RETD.) - Complainant(s)

Versus

ARMY WELFARE HOUSING ORG. - Opp.Party(s)

ROHIT KAUSHIK

17 Apr 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                      

                             Consumer Complaint No.     251 of 2016

                                      Date of Institution                  31.08.2016

                                       Date of Decision                             17.04.2018

 

 

Brig. Pradeep Kumar Kaushik (Retd.) son of late Sh. Mehar Chand Kaushik, resident of House No.15-B, Raja Park, Ambala Cantt, Haryana -133001.

                                      Complainant

Versus

 

1.      The Managing Director, Army Welfare Housing Organization, South Hutments, Kashmir House, Raja Ji Marg, New Delhi-110011.

2.      Project Manager, AWHO, Sector 27, Panchkula-134109.

Opposite Parties

 

 

CORAM:   Hon’ble Mr. Justice Nawab Singh, President.

                   Shri Balbir Singh, Judicial Member.

 

                                                                                                               

 

Argued by: Sh. Rohit Kaushik, Advocate for the complainant.

                   Sh. A.K. Tewari, Advocate for the opposite parties.

 

                                                   O R D E R

 

NAWAB SINGH J.

 

          Brigadier Pradeep Kumar Kaushik (Retd.)–complainant has filed this complaint under Section 17 of the Consumer Protection Act, 1986 against The Managing Director, Army Welfare Housing Organization and another-opposite parties alleging that vide advertisement (Exhibit C-1) he booked Pent House Deluxe in Sector 27, Panchkula on August 09^th, 2006.  The Pent House was not constructed as per the specifications mentioned in advertisement (Exhibit C-1). The complainant paid Rs.55,70,000/-, that is, price of the Pent House, interest on the delayed payment etc to the opposite parties.  The possession of the Pent House was handed over to the complainant on September 01^st, 2014.  No agreement was executed between the complainant and the opposite parties.  The grievance of the complainant was that as per the advertisement (Exhibit C-1), the price of the flat was Rs.33,74,000/- plus registration and application fee, that is, Rs.90,500/- whereas they have charged Rs.55,70,000/-. The opposite parties failed to handover the possession of the Pent House thrice, that is, firstly in the year 2009, secondly in the end of year 2010 and lastly in the month of October/November 2011.  There was ordinate delay of approximately five years in handing over the possession of the Pent House.  The opposite parties also increased the cost of Pent House thrice.  The complainant served legal notice dated May 26^th, 2014 upon the opposite parties to refund the escalated price and to pay compensation alongwith interest at the rate of 18% per annum.   

2.      The opposite parties, in their, written version pleaded that the object of the opposite parties is to provide dwelling units to serving and retired army personnel as well as their widows, all over India on “No Profit and No Loss basis”.  The possession of the Pent House was handed over to the complainant on September 01^st, 2014.  The complainant never raised any issue relating to the final cost and other issues relating to the Pent House allotted to him.  All the defects were rectified to the satisfaction of the allottees before taking over the possession.  The price of the Pent House was tentative. The foundation design and drawing were revised by the architects and structural engineers of opposite parties and same were handed over to the contractor for execution of the foundation in the month of May, 2008.  The change in the foundation was based on the opinions dated November 26^th & 28^th, 2007 and November 27^th, 2011 of Ghuman & Gupta Geotech Consultants, Sehgal Jatia and Associates Private Limited and IIT, Delhi with regard to the strength and safety of the building structure etc. Pursuant to the order of the Hon’ble Punjab and Haryana High Court, a ban was imposed on mining in the State of Haryana since March 2010. This ban continued till the year 2012 and hampered the progress of the work. During the period of construction, the State Government imposed new taxes like service tax @ 4.12% and labour cess @ 1% resulted in the increase in cost.  In December, 2011, HUDA raised a demand of Rs.18.58 crores towards the enhanced compensation of the land allotted for the housing project.  Vide letter dated November 03^rd, 2006 the opposite parties informed all the allottees about the tentative revised cost of their dwelling units.  The opposite parties also informed the allottees vide letter dated January 17^th, 2012 about the tentative liability towards the additional cost of dwelling units.  The project was completed by May-June, 2013 and the dwelling units were handed over to the allottees in phases.  HUDA and the opposite parties entered into an agreement dated July 18^th, 2006 for supply of electricity to the project.  In the month of December, 2008, the opposite parties applied for sanction of electricity load for the project but around December, 2011 the same was not approved by stating that the demanded load could be fed only through 33 KV/66KV system or two independent 11 KV feeders whereas the electrical connection to the project should have been provided by the HUDA in terms of the agreement dated July 18^th, 2006.  The opposite parties also wrote letters dated December 29^th, 2009, December 08^th, 2011 and January 13^th, 2012 to the HUDA.  The opposite parties denied the remaining contents of the complaint and prayed for its dismissal.

3.      The complainant, in his evidence, appeared as CW1 and produced following documents:-

S. No.	Documents	Exhibits
1.	Advertisement published by AWHO	C-1
2.	Letter dated August 09th, 2006 regarding booking of Pent House Deluxe	C-2
3.	Letter dated November 21st, 2007 regarding booking of apartment	C-3
4.	Letter dated October 13th, 2010 regarding Project Progress	C-4
5.	Letter dated January 17th, 2011 regarding revision of payment schedule	C-5
6.	Letter dated August 29th, 2012 regarding cost escalation and delay in respect of AWHO Project at Sector 27, Panchkula	C-6
7.	Letter dated February 19th, 2013 issued by the opposite parties	C-7
8.	Letter dated October 31st, 2013 regarding instructions for handing taking over of Dwelling Units and Statement of Accounts	C-8
9.	Letter dated January 23rd, 2014 regarding revision of date of handing/taking over of dwelling units	C-9
10.	Letter dated April 21st, 2014 sent by Pradeep Kumar Kaushik-complainant to the opposite parties	C-10
11.	Copy of Legal Notice dated May 26th, 2014	C-11

 

4.      The opposite parties examined Lieutenant Colonel Pankaj Subba- OPW-1 and relied upon the following documents:-

1.	Certificate dated 06.12.2017 issued by Army Welfare Housing Organization	Exhibit R-1
2.	Certificate of registration dated 20.03.1978 issued by Registrar of Societies Delhi Administration New Delhi	Exhibit R-2
3.	Letter of allotment dated 22.12.2004 issued by The Estate Officer, HUDA, Panchkula	Exhibit R-3
4.	Agreement dated 18.07.2006	Exhibit R-4
5.	Letter dated 27.02.2009 sent by Project Director, AWHO, Sector-27, Panchkula to AWHO, Dir (C-3), New Delhi	Exhibit R-5
6.	Brochure of AWHO	Exhibit R-6
7.	Order dated May 19th, 2017 of Hon’ble National Consumer Commission, New Delhi in case titled Major Sandeep Vinayak & Ors Vs. Army Welfare Housing Organization & Ors.	Exhibit R-7
8.	Letter dated October 24th, 2005 sent by AWHO, New Delhi to the complainant regarding Change of Registration from Panchkula Sector 20 to Panchkula Sector 27	Exhibit R-8
9.	Letter dated August 09th, 2006 sent by AWHO, New Delhi to the complainant regarding Booking Letter for Pent House Deluxe at Panchkula, Sector 27	Exhibit R-9
10.	Letter dated August 10th, 2006 sent by AWHO, New Delhi to the complainant regarding revised cost and option letter for Panchkula (Sector 27) Project	Exhibit R-10
11.	Letter dated November 21st, 2007 sent by AWHO, New Delhi to the complainant regarding Booking Letter for Apartment at Panchkula	Exhibit R-11
12.	Letter dated November 23rd, 2007 sent by Sehgal Jatia And Associates Private Limited to M/s J.M. Narang and Associates regarding structural consultancy services for proposed AWHO Project at Panchkula	Exhibit R-12
13.	Letter dated November 26th, 2007 sent by J.M. Narang and Associates to M/s Sehgal Jatia And Associates Private Limited regarding structural consultancy services for proposed AWHO Project at Panchkula	Exhibit R-13
14.	Letter dated January 04th, 2008 sent by Sehgal Jatia And Associates Private Limited to Managing Director, AWHO, New Delhi	Exhibit R-14
15.	Letter dated January 08th, 2008 sent by Director (Arch.), AWHO, New Delhi to Project Director, AWHO, Panchkula	Exhibit R-14A
16.	Letter dated January 14th, 2010 sent by AWHO, New Delhi to the complainant regarding handing/taking over AWHO Dwelling Unit Panchkula	Exhibit R-15
17.	Letter dated August 25th, 2008 sent by AWHO, New Delhi to the complainant regarding revision of payment schedule	Exhibit R-16
18.	Letter dated March 25th, 2009 sent by AWHO, New Delhi to the complainant regarding revision of payment schedule	Exhibit R-17
19.	Letter dated March 22nd, 2010 sent by AWHO, New Delhi to the complainant regarding revision of payment schedule	Exhibit R-18
20.	Letter dated August 05th, 2010 sent by AWHO, New Delhi to the complainant regarding revision of payment schedule	Exhibit R-19
21.	Letter dated January 17th, 2011 sent by AWHO, New Delhi to the complainant regarding revision of payment schedule	Exhibit R-20
22.	Order dated August 05th, 2011 passed by Hon’ble Punjab and Haryana High Court in CWP No.4758 of 2008	Exhibit R-21
23.	Order dated 27th, 2012 passed by Hon’ble Supreme Court in SLP (C) No.729-731/2011	Exhibit R-22
24.	Letter dated October 13th, 2010 sent by AWHO, New Delhi to the complainant regarding Project Progress	Exhibit R-23
25.	Letter dated January 17th, 2012 sent by AWHO, New Delhi to the complainant regarding enhanced cost of land imposed by HUDA	Exhibit R-24
26.	Allotment letter dated October 29th, 2012	Exhibit R-25
27.	Letter dated February 19th, 2013 regarding Update of Sector 27, Panchkula	Exhibit R-26
28.	Letter dated October 31st, 2013 sent AWHO, Panchkula to the complainant	Exhibit R-27
29.	Possession Certificate dated September 01st, 2014	Exhibit R-28
30.	Certificate dated July 27th, 2006	Exhibit R-29
31.	Letter dated December 29th, 2009 sent by AWHO to the SDO (OP), Sub Division, UHBVN, Panchkula	Exhibit R-30
32.	Letter dated December 08th, 2011 sent by AWHO to the SDO (OP), Sub Division, UHBVN, Panchkula	Exhibit R-31
33.	Letter dated January 13th, 2012 sent by AWHO to the Estate Officer, HUDA, Panchkula	Exhibit R-32

 

5.      At the outset, learned counsel for the complainant has urged that the present complaint be disposed of as per the order passed in Revision Petition No.1982 of 2014 titled Lt. Col. Ajmer Singh (Retd.) Vs. Adjutant General and Others, decided on February 16^th, 2015 by Hon’ble National Consumer Disputes Redressal Commission, New Delhi.  The said order has been upheld by Hon’ble Supreme Court of India vide order dated March 31^st, 2016.

6.      On the other hand, learned counsel for the opposite parties has urged that the complaint should not be disposed as per the judgments passed in Lt. Colonel Ajmer Singh (Retd.) case supra.   Rather the present complaint be dismissed in view of judgment dated January 21^st, 2014 rendered by this Commission in Appeal No.664 of 2013 filed by Lt. Col. Ajmer Singh (Retd.).  Reliance has been placed upon (i)   Fuljit Kaur Vs. State of Punjab and Others, (2010) 11, Supreme Court Cases, 455 (ii)          Ashok Khanna Vs. Ghaziabad Development Authority, (2009), NCDRC, 104 and (iii) Delhi Development Authority Vs. Kamini Chopra, (1996) CPJ, 285 (NC).

7.      Lt. Colonel Ajmer Singh one of the allottee in the aforesaid project filed complaint No.82 of 2013 titled Lt. Colonel Ajmer Singh Vs. Adjutant General and Others before the District Consumer Forum, Panchkula.

8.      The complaint was allowed directing the opposite parties as under:-

          “I.      To complete the project and deliver possession of the flats/DU to the complainant allotted to him vide allotment letter (Annexure C-2) at the earliest & further to pay interest @ 9% per annum on the entire deposit made by the complainant against the flat/DU prior to filing of the complaint w.e.f date of filing of the complainant till the date of actual offer of possession of flats/DU.

          II.       To pay a sum of Rs.3000/- as compensation on account of deficiency in service, mental agony and harassment caused to the complainant due to act and conduct of the opposite parties as well as cost of litigation.”

9.      Against the said order, Lt. Col. Ajmer Singh filed First Appeal No.664 of 2013 before this Commission.  The said appeal alongwith bunch of appeals No.642, 660 to 664, 672 to 674, 815 to 824 and 842 of 2013 filed by the opposite parties as well as other flat owners was decided by this Commission vide order dated January 21^st, 2014.  The appeals filed by the flat owners were dismissed and the appeals filed by the opposite parties were accepted. 

10.    Aggrieved of the aforesaid order, Lt. Col. Ajmer Singh filed Revision Petition No.1982 of 2014 before the Hon’ble National Consumer Commission, New Delhi.

11.    The Hon’ble National Commission vide order dated February 16^th, 2015 partly allowed the revision petition by observing as under:-

          “21.    Again, no proof has been produced that there were torrential rains during the above said period which obstructed the completion of the construction.  Succinctly stated, the OPs can claim benefit of two years’, out of five years’ delay.

          22.    The third ground of delay is stated to be because of the attitude of HUDA in respect of non-rendering of electricity connection. There is an agreement between HUDA and the complainant, dated 18.07.2006, wherein, under clause 5 of the said agreement, it was held as under:-

                   “HUDA will provide only 11 KV line around the periphery of each group housing site and further provision for providing transformer of required capacity, 11 KV cable, metering equipment and other allied accessories will have to be made by each Group Housing Society/Organisation itself as per its load requirement within its premises at its own cost and as per the standards/ specification laid down by HSEB(HVPNL/ HPGCL)”.

          23.    However, vide letter dated 07.10.2011, at the eleventh hour, HUDA refused to give electricity and asked the OPs to have their own arrangement for electricity.  From 08.12.2011, electricity was provided to the flat owners in July, 2013. They  got  the possession  of  the  premises  in July, 2013,  after  a  delay of more than one-and-a-half years, from 08.12.2011.

          24.    Counsel for the petitioner explained that electricity was to be provided on time. This is an indisputable fact that the complainants have been regularly paying the installments as and when demanded by the opposite parties against the Dwelling Units.  In December, 2011, HUDA demanded ELC, amounting to Rs.18.58 crores. The same was paid within 30 days.  However, the petitioner paid the installments in the year 2013 with a delay of more than one year and the burden of default clause of interest @ 15% fell upon the allotttees amounting to Rs.2.00 crores plus and thus increased the cost of dwelling unit.  The burden of exclusion was again thrown upon the allottees.  The installation of 50 ltrs of solar water heating system was delayed due to non construction of the building.  Last, but not the least, this is a matter between HUDA and the opposite parties. It is difficult to fathom, how the complainants are concerned with that.  If the opposite parties have got any grouse against the HUDA, there lies no impediment in suing it and the claim compensation for their omission to do the needful.

          25.    It may also be mentioned here that the complainants are arguing that the flats are defective to some extent. No Architect’s certificate was obtained.  Therefore, we advise the opposite parties to pay heed to their complaints to rectify the defects rather to create another litigation unnecessarily.  The complainants are army persons.  They have served the whole nation and their complaints should be heard keeping the heart in the right place.

          26.    In the result, we find that the action of the opposite parties is below the belt to some extent.  The booking letter dated August 11^th, 2016 issued in favour of the complainants indicating that proposed date of completion of seven years.  Out of these three years, the prescribed period, plus two years of mining ban, stand adjusted.  There is delay of two years only, out of which, we give grace period of six months.  The opposite parties are guilty of constructing the flats by a period of one and a half years.  The people are exasperated by unnecessary delays.  Due to delay, the complainants also, could not get the rebate detailed above.”          

12.    The Hon’ble National Commission taking into consideration the date of providing electricity, that is, December 08^th, 2011 and handing over of the physical possession to Lt. Col. Ajmer Singh in the month of July, 2013 awarded interest at the rate of 15% per annum from December 08^th, 2011 to July, 2013, that is, for a period of one and half years. 

13.    The opposite parties filed Special Leave to Appeal No.15118-15122/2015 against the aforesaid order before the Hon’ble Supreme Court of India, which was dismissed vide order dated March 31^st, 2016.

14.    The opposite parties filed review petitions No.2472-2477 of 2016 before the Hon’ble Supreme Court, which were also dismissed by order dated August 11^th, 2016.  

15.    In view of the aforesaid orders, the present complaint is to be disposed of on the same terms of Lt. Col. Ajmer Singh (Retd.) case was decided.  Since the matter has already been decided upto Hon’ble Apex Court, the contention raised by learned counsel for the opposite parties and the judgments relied upon by him are of no help. 

16.    It is not in dispute that the electric connection was provided to the flat owners by the opposite parties on December 08^th, 2011 and the possession of the flat was handed over to the complainant on September 01^st, 2014 (Exhibit R-28).  So, in view of aforesaid judgment Lt. Colonel Ajmer Singh, the complainant is entitled to interest at the rate of 15% per annum from December 08^th, 2011 to September 01^st, 2014, that is, 2 Years 08 Months and 25 Days on the amounts deposited by him from the dates of respective deposits payable by the opposite parties within a period of 90 days, from the date of receipt of this order. It is ordered accordingly.  The complaints stands disposed of.

  

 

Announced 17.04.2018

(Balbir Singh) Judicial Member

(Nawab Singh) President

UK