Chandigarh

StateCommission

CC/549/2017

Jorawar Singh - Complainant(s)

Versus

Chandigarh Housing Board - Opp.Party(s)

Arvind Sehdev, Adv.

03 May 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Consumer Complaint	:	549 of 2017
Date of Institution	:	17.07.2017
Date of Decision	:	03.05.2018

 

Jorawer Singh S/o Shri Bhupinder Singh, resident of House No.5786-A, Sector 38 (West), Chandigarh.

…….Complainant.

Versus

Chandigarh Housing Board, 8, Jan Marg, Sector 9D, Chandigarh through its Chairman/Secretary/authorized representative.

..........Opposite Party.

Argued by:

Sh. Arvind Sehdev, Advocate for the complainant.

Sh. Indresh Goel, Advocate for the Opposite Party.

 

Consumer Complaint	:	37 of 2018
Date of Institution	:	22.01.2018
Date of Decision	:	03.05.2018

 

Sh. Jaspal Sigh Jaswal S/o Late Sh. Isher Singh, resident of House No.2304-B, Sector-63, Chandigarh.

….Complainant.

Versus

Chandigarh Housing Board, 8, Jan Marg, Sector 9, Chandigarh – 160009 through its Chairman.

..........Opposite Party.

Argued by:

Sh. Satinder Kumar Rana, Advocate for the complainant.

Consumer Complaint	:	53 of 2018
Date of Institution	:	06.02.2018
Date of Decision	:	03.05.2018

 

Sh. Pawan Kumar S/o Sh. Awadh Kishore Gupta, resident of House No.2310-A, Sector-63, Chandigarh.

….Complainant.

Versus

Chandigarh Housing Board, 8, Jan Marg, Sector 9, Chandigarh – 160009 through its Chairman.

..........Opposite Party.

Argued by:

Sh. Satinder Kumar Rana, Advocate for the complainant.

Consumer Complaint	:	54 of 2018
Date of Institution	:	06.02.2018
Date of Decision	:	03.05.2018

 

Ashwani Kumar S/o Sh. Sukh Ram, resident of House No.2318-C, Sector-63, Chandigarh.

….Complainant.

Versus

Chandigarh Housing Board, 8, Jan Marg, Sector 9, Chandigarh – 160009 through its Chairman.

..........Opposite Party.

Argued by:

Sh. Satinder Kumar Rana, Advocate for the complainant.

Consumer Complaint	:	55 of 2018
Date of Institution	:	06.02.2018
Date of Decision	:	03.05.2018

 

Bhullan Lal S/o Sh. Dukhi Lal, resident of House No.2071-A, Block No.24, Sector-63, Chandigarh.

….Complainant.

Versus

Chandigarh Housing Board, 8, Jan Marg, Sector 9, Chandigarh – 160009 through its Chairman.

..........Opposite Party.

Argued by:

Sh. Satinder Kumar Rana, Advocate for the complainant.

Consumer Complaint	:	56 of 2018
Date of Institution	:	06.02.2018
Date of Decision	:	03.05.2018

 

Sh. Pravin Kumar Sinha S/o Sh. Jogendra Prasad Sinha, resident of House No.2082-C, Block No.24, Sector-63, Chandigarh.

….Complainant.

Versus

Chandigarh Housing Board, 8, Jan Marg, Sector 9, Chandigarh – 160009 through its Chairman.

..........Opposite Party.

Argued by:

Sh. Satinder Kumar Rana, Advocate for the complainant.

Complaints under Section 17 of the Consumer Protection Act, 1986.

BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                SH. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER.

 

PER DEV RAJ, MEMBER

            By this order, we propose to dispose of aforesaid six consumer complaints bearing Nos.549 of 2017, 37, 53, 54, 55 and 56 all of 2018.

2.           At the time of arguments on 23.04.2018, it was agreed between the Counsel for the parties that facts involved in these complaints, by and large, are the same and therefore, these complaints could be disposed of by passing one consolidated order.

3.         Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing No.549 of 2017, titled as ‘Jorawer Singh Vs. Chandigarh Housing Board’.

4.         In brief, the facts are that the Opposite Party came up with a project named ‘Housing Flat Scheme – 2008) on 31.03.2008 and offered residential flats. The Opposite Party represented that it had a mission to provide shelter to those who did not own any property in the Chandigarh Region, in own/spouse/children name on “Special Subsidized Price”. The scheme was to open on 31.03.2008 and closing date was 30.04.2008. The complainant, who was and is still living as a paying guest with his wife’s parents in their house, applied for allotment vide application form No.19924 on 23.04.2008. At the time of booking, the complainant deposited a sum of Rs.3,95,745/- as application fee. The price of the unit was Rs.39,57,451/-. It was stated that payment was to be made as per schedule which was part of scheme brochure form (Annexure C-1). After acceptance of the application form, the complainant was allotted a Three Bedroom flat bearing Registration No.CHS63-3BR-GEN-6. The possession of the flat was to be given with the specifications as mentioned in Clause VII in the scheme brochure. It was further stated that the Opposite Party did not give any definite date of possession knowing well that the complainant would be left with no alternative in case the complainant wished to buy a flat at “Special Subsidized Price”. It was further stated that at the time of issuance of ACDL, the complainant opted for interest paid installments and paid the installments as per payment plan without any delay. It was further stated that the complainant paid Rs.5,93,618/- on 16.12.2011 and Rs.11,10,391/- each on 16.05.2012, 02.11.2012 & 13.05.2013 respectively.

5.         It was further stated that despite paying all the amounts in time, the Opposite Party vide possession letter dated 29.09.2015 (Annexure C-4), asked              the complainant to pay the remainder amount within 60days  after which, the validity of the physical possession letter shall expire. It was further stated that the work at the construction site is still not complete and as such, the Opposite Party could not produce the completion certificate. It was further stated that vide Annexure C-3, the Opposite Party arbitrarily and capriciously added an additional amount of Rs.1,36,761/- as service tax. It was further stated that the Opposite Party further demanded the remainder amount of Rs.96,530/- after deducting self determined, arbitrary amount of Rs.50,000/- towards covered parking space in the basement and that, in lieu, an open road side parking space was allotted to the complainant. It was further stated that in the application/brochure, the Opposite Party had mentioned that it could increase or decrease the number of flats in the said project but there was no mention that the plans shall be changed to such a massive and pivotal extent that the allottees would be denied the duly mentioned parking space. It was further stated that the possession of the flat, in question, was given on 03.09.2015. It was further stated that the possession was adverse in nature as there was no electricity supply till April 2016 and there were no roads till January 2016. It was further stated that many things were not delivered as      promised, as the plastered bathrooms were not available, Plaster of Paris (POP) was not done as per specifications given in clause VII of the application form; two polyethylene tanks of 500 liters capacity each were to be given whereas only one single 1000 liters tank was provided. It was further stated that the Opposite Party had profited from the said project, which could be confirmed from the bid document, which the Opposite Party signed with the contractor. It was further stated that in the installment basis plan, the complainant was made to pay 12% interest on the said amount, whereas the work committed ahead was started at least two years later, meaning thereby that the Opposite Party kept the money itself and kept on reaping interest on the said amount.  

6.         Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of the Opposite Party, the complainant filed the instant complaint under Section 17 of the Consumer Protection Act 1986 (in short 1986 Act) seeking following directions to the Opposite Parties:-

(i)             OPs may be directed to immediately allot a parking space in the block of the complainant, and till that time pay Rs.5,000/- per month towards the hardship from the date of possession.

(ii)           To immediately support the complainant in getting the title deed executed.

(iii)          To immediately open all roads linked to the project/Scheme so that possession can be actually enjoyed and till that time, pay Rs.5,000/- per month towards the hardship from the date of possession.

(iv)           To refund the arbitrarily and negligently charged excess amount from the complainant than originally agreed upon, i.e. Rs.1,36,761/-.

(v)            To pay an amount of Rs.6,25,192/- towards interest on the pre-agreed scheme rate of 12% on Rs.39,07,451/- from 18.11.2011 to date of payment of first installment to the contractor being 1.4.2013.

(vi)           To pay an amount of Rs.6,40,000/- @20,000/- average market rent per month, for the period beyond 60 months, only for 32 months, out of total 92 months between start of the scheme and date of adverse possession.

(vii)         OP may be directed to pay an amount of Rs.1 lac to the complainant for making good the general construction & provisions related shortcomings, defects & deficiencies.

(viii)       OP may be directed to pay an amount of Rs.1 Lac to the complainant on account of restricting the right of complainant to own a property at a “Subsidized Special Price”……

(ix)          An amount of Rs.50,000/- may kindly be awarded in favour of the complainant on account of litigation expenses.

(x)            any other order or direction may be passed as may be considered appropriate by this Hon’ble Forum in favour of the complainant and against the opposite parties.

7.         The Opposite Party filed reply wherein it was stated that the Board reserved a small number of flats for assured allotments under Scheme B, however, Clause II(3) namely the scheme of brochure clearly stated that sub scheme B was designed and meant for applicants who wanted assured allotment and were willing to pay higher rate than the rate prescribed in the scheme. It was further stated that the dwelling unit allotted under this sub scheme shall be on free hold basis and there would be no time bar on the subsequent transfer/sale of the dwelling unit. It was further stated that ACDL dated 18.11.2011 was issued to the complainant specifying the terms and conditions as also the due dates and details of payment schedule. The ACDL was accepted by the complainant and the same cannot be allowed to be challenged at this belated stage i.e. after expiry of almost six years. It was further that it was a mere coincidence that the launching date of the scheme was 31.03.2008 and there was no undue haste or hidden agenda behind the said date. It was further stated that there was no question for the Opposite Party to proceed without having appropriate permission of the UT Administration/State Government. It was further stated that the payment was charged as per the schedule of payment, which schedule was accepted by the complainant at the time of making the application.

8.         It was further stated that the public utility services i.e. water, electricity, roads and parking were completed before handing over the possession to the applicants. It was further stated that individual electricity connections were to be obtained by the allottee/occupants from the Electricity Department, UT after taking the physical possession and the same was applicable for water connections also. It was further stated that all the road work has been done as per approved plan by the Chief Architect, Chandigarh. It was further stated that still further, no basement parking has been provided to any of the applicants and ear-marked parking has been provided against every dwelling unit/flat and hence, there exists no confusion for the same. It was admitted that allotment letter dated 08.09.2015 was issued to the complainant and further possession letter dated 29.09.2015 was also issued subsequently upon completion of various required formalities by the complainant. It was also admitted that in case of delayed payment, the Board is supposed to charge interest as per the terms and conditions of ACDL. It was further admitted that a sum of Rs.1,36,761/- was demanded as per provisions of the Service Tax Act and lease money as per provisions of the scheme.                  It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party nor it indulged into any unfair trade practice. The remaining averments, were denied, being wrong.

9.         The complainant, in support of his case, submitted his affidavit, by way of evidence, alongwith which, a number of documents were attached.

10.       The Opposite Party, in support of its case, submitted the affidavit of Sh. Baldev Singh, its Chief Accounts Officer, by way of evidence, alongwith which, a number of documents were attached. 

11.       We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 

12.       It is evident on record that the complainant applied for allotment of 3 Bedroom flat in General Self Financing Scheme 2008, Sector 63, Chandigarh by paying the booking amount of Rs.3,95,745/-. The Opposite Party issued acceptance-cum-demand letter (ACDL) bearing No.HB-AOI-SO-(IV)-2011/16949 dated 18.11.2011, allotting 3^rd Floor 3 Bedroom flat to the complainant indicating the payment schedule as under:-

Price in lacs	Amount
Due/payable within 30 days of the issue of Acceptance-cum-demand letter	Rs.593618
Ist instalment within 180 days from the date of ACD letter	Rs.1110391
IInd instalment within 360 days from the date of ACD letter	Rs.1110391
IIIrd intalment within 540 days from the date of ACD letter	Rs.1110391
At the time of handing over the possession	100% of chargeable price minus price already paid

 

13.       The complainant deposited all the installments. Making payment(s) in terms of ACDL dated 18.11.2011 means that the complainant accepted the terms and conditions stipulated therein. After taking possession in the year 2015, and after six years of issuance of ACDL, he cannot be allowed to say that there was delay. Admittedly, as per letter of possession dated 29.09.2015  (Annexure C-4), the complainant took physical possession of the flat. The plea of the complainant that on account of delay, he was deprived benefit of “Special Subsidized Price” for purchasing a unit in Chandigarh Region is without any basis. The Scheme floated by the Opposite Party was a special scheme on no profit no loss basis without any escalation. When the complainant has not given, details of any other “Special Subsidized Price” Scheme, if any, launched in Chandigarh Region during the period between 2008 till 2015, his contention is nothing but an argument for the sake of argument.

14.       With regard to the grievance of the complainant to open all roads linked to the project/scheme to enable him to actually enjoy the possession and to pay Rs.5,000/- per month for the hardship from the date of possession, the Opposite Party in its written statement has categorically stated that all the road work has been done as per approved plan by the Chief Architect, Chandigarh. The complainant in Para 19(c) of his complaint has admitted that entry/road has been opened by the opposite party.

15.       The deficiency qua non-provision of electricity pointed out by the complainant, is also devoid of cogent reasoning. Electricity Bill dated 20.04.2016 for the period from 30.11.2015 onwards confirms availability of electricity.

16.       As regards prayer of the complainant for execution of Title Deed, it has to be as per policy of the opposite party. The complainant has not placed, on record, any document to the effect that he ever took up this issue with the opposite party.

17.              The next issue raised by the complainant is qua allotting a parking space in the block of the complainant. It may be stated here that similar question arose for consideration in Wing Commander (Retd.) Sumer Singh Savant Vs. Chandigarh Housing Board, Consumer Complaint bearing No.196 of 2017 decided by this Commission on 17.04.2018, in which this Commission held as under:-

“35.            The next question, which falls for consideration, is, whether the Opposite Party was liable to provide covered car parking to the complainant near to his flat. No doubt, there was provision qua this in the brochure but while allotting the dwelling unit vide letter dated 08.02.2015, the covered car parking could not be allotted to all the allottees and allotment of covered car parking was made on the basis of draw of lots. The Opposite Party in its written statement has stated that draw for allotment of Category A and Category B was conducted, wherein the complainant remained unsuccessful. The Opposite Party has further stated that as such, the Opposite Party offered Category C open space parking by granting a onetime rebate of Rs.50,000/- from the cost of the house, which the complainant accepted without any protest or reservation and he has been provided one car parking space nearest to the Block in which his flat is situated. While issuing allotment vide letter dated 08.02.2015, rebate for non-providing car parking space has duly been given to the complainant. Therefore, the grievance of the complainant is not tenable and no deficiency can be attributed to the Opposite Party.”

 

 

 

 

18.           In the instant case also, rebate, for not providing parking space, in the sum of Rs.50,000/-, was provided to the complainant while issuing allotment letter dated 08.09.2015 (Annexure C-3). In view of ratio of judgment of this Commission in Wing Commander (Retd.) Sumer Singh Savant Vs. Chandigarh Housing Board’s case (supra), no deficiency is attributable to the Opposite Party.

19.       So far as the grievance of the complainant for charging service tax in the sum of Rs.1,36,761/- is concerned, the Opposite Party, in its written statement, has stated that the service tax was demanded as per provisions of Service Tax Act. It may be stated here that service tax, so realized, is paid to the Government. The complainant has not given any reasoning/justification, as to why the same was not payable. The service tax was paid after receipt of allotment letter dated 08.02.2015 and there is nothing, on record, that the complainant, after making payment thereof, raised any objection/protest regarding the same.

20.       The next question, which falls for consideration, is whether the complainant is entitled to a sum of Rs.6,25,192/- towards interest on the pre-agreed scheme rate of 12% on Rs.39,07,451/- from 18.11.2011 to date of payment of first installment to the contractor being 01.04.2013 and also to an amount of Rs.6,40,000/- @Rs.20,000/- average market rent per month for a period of 32 months beyond 60 months i.e. from the date of start of the Scheme and date of adverse possession. These reliefs, sought by the complainant, are almost identical to the one sought by the complainant in case titled “Chandigarh Housing Board Vs. Jarnail Singh”, First Appeal bearing No.333 of 2015 decided on 18.01.2016, wherein in Para 12 to 14 & 16, this Commission held as under:-

“12.      After looking into documents on record and also contents of an affidavit dated 06.01.2016 (said affidavit was filed in terms of order dated 11.12.2015 passed by this Commission) filed by Sh.Sunil Kumar, Chief Engineer of Chandigarh Housing Board, we are of the considered opinion that there was no inordinate delay in handing over possession of flat to the respondent. It was on account of various reasons, beyond the control of the appellants. Scheme was floated in the year 2008. The respondent paid an amount of Rs.3,95,745/- at that time. Draw of lots was conducted for allotment of flats, in the year 2010, whereafter, in five installments, amount was paid by the respondent, to the appellants, towards price of the flat. In the above said affidavit, it is stated that construction qua 120 flats was started on 01.09.2011. However, possession of entire project land could not be given, as such, possession of site for construction of 80 flats out of above 120 flats, was only given to the contractor, for construction. Qua second lot of 216 flats, construction was started on 11.11.2011. However, at site, possession of land to raise only 120 flats could be given. Qua construction of remaining flats, possession of land could not be given, on account of boundary dispute between the appellants and the Greater Mohali Area Development Authority (GMADA), Mohali. It is necessary to note here that the project is situated adjoining boundary line, between U.T., Chandigarh and Punjab, Mohali. Due to above difficulty, lay out plan of the project land was revised on 14.06.2012. Location of original flats was changed and the land at site was made available to the contractor, in the month of June 2012. Construction of 214 3BR flats was completed in the month of April 2013. Construction qua other flats was completed in December 2013. The appellants then faced difficulty regarding disposal of sewerage and storm water discharge, in the existing location of project land, on account of topography of land, where the project, in question, was situated. The matter was taken up with the GMADA, Mohali, and sewerage connection was given to 984 no. of flats by it, on 31.03.2014, on payment of charges. Qua some of the flats, proposal was vetted on 15.09.2014. Completion of above work took some-time. To award separate contracts of water supply, water boosting system, sewerage system & storm water disposal system, electricity distribution system, street lighting system, roads etc, it also took some time to complete the project. Shortage of sand and bazri (crushed stones) was also one of the reasons for delay, in construction of flats. Process of handing over possession was started on 11.09.2015. Possession of flat was delivered to the respondent on 29.09.2015.

13.       Sequence of the events mentioned above, clearly indicates that the appellants were not deficient in providing service to the respondent. All out efforts were being made to construct the flats, and deliver possession within reasonable time. It is not an allegation of the respondent that on account of delay, he was made to pay higher price of the unit.  He was given possession of the flat, at the same rate, which was advertised in the year 2008. As per common knowledge, price of the flat, in the meantime has escalated and delay had gone to the benefit of respondent, and as such, he has suffered no loss.

            A similar question fell for determination before the Hon'ble Supreme Court in a case titled as Bangalore Development Authority Vs. Syndicate Bank, 2007 AIR (SC) 2198. In that case, like the present one, the dispute was qua handing over possession of constructed flat, in the Self Financing Housing Scheme. There was delay in raising construction. By noting that no assured date of possession was given in the Agreement/allotment letter, the Hon'ble Supreme Court of India observed as under:-

“We find that both parties - BDA as also the Respondent proceeded on the basis that time was not the essence of the contract. In a contract involving construction, time is not the essence of the contract unless specified. Even when the respondent wrote the letters dated 29.11.1989, 17.1.1990, 9.7.1993 and 11.1.1994, it did not make time for performance the essence of contract, nor fix any reasonable time for performance. The Respondent did not also choose to terminate the contract, obviously in view of the manifold increase in the value of the Houses. For the first time, by notice dated 11.7.1994, it purported to make the time the essence, but demanded delivery within an unreasonable period of one month and filed the complaint on 4.2.1995. Thus, it cannot be said that the Respondent made time the essence of contract, in a manner recognized in law. We also find that the development authority was constructing these houses under a self- financing scheme on 'No-Profit No-Loss basis' by using the instalments/amounts paid by the allottees. The houses were delivered in 1997 at a price agreed in 1986. By 1997, the value had gone up many times (more than 10 times according to BDA). The Respondent had the benefit of such rise in value. The respondent also failed to prove any negligence on the part of BDA. In this factual background, we find it difficult to hold that there was 'deficiency in service' on the part of BDA entitling the respondent for any compensation by way of interest or otherwise. Consequently, the respondent is not entitled to any compensation.”

14.      In the present case also, it could be safely said that time was not essence of the contract. Evidence on record clearly indicates that all attempts were made by the appellants, to complete the project, within reasonable time. It is so apparent from reading of the contents of the affidavit dated 06.01.2016, filed by Sh.Sunil Kumar, Chief Engineer of Chandigarh Housing Board (on the asking of this Commission). To the facts mentioned above, no contrary evidence has been produced on record, by the respondent.

                        A similar housing scheme had been floated by a Development xxxxxxxx

15.                   xxxxxxx

16.                   To controvert arguments raised by Counsel for the appellants, the respondent has placed reliance upon the judgment of Hon'ble National Commission titled as  Bhagat Singh and another Vs. Adharshila Towers Pvt. Ltd. and another, 2013 (4) CPJ 354. It may be stated here that, in that case, the builder/opposite parties had claimed escalation cost towards construction and it was on account of this reason, it was held that intentions of the opposite parties was to delay the construction, just with a view to charge escalation charges, from the buyers. Whereas, as stated above, in the present case, possession of the flat, in question, was delivered to him, on the same rates, prevailing in the year 2008. As such, the facts of Bhagat Singh and another's case (supra) being entirely different from the present case, no help can be drawn therefrom, by the respondent. In view of the facts mentioned above, we safely hold that there was no deficiency in providing service, by the appellants to the respondent. The Forum has passed the judgment, without analyzing the provisions of the scheme, as also the fact that no date to deliver possession of the flat was given, when offer to purchase  thereof, made by the appellants, was accepted by the respondent. The findings of the Forum, being perverse, deserve to be reversed.”

            Same view was reiterated in this Commission judgment in case titled ‘Wing Commander (Retd.) Sumer Singh Savant Vs. Chandigarh Housing Board (supra).

21.       It may also be stated here that Acceptance-cum-Demand Letter (ACDL) was issued by the Opposite Party to the complainant on 18.11.2011 giving specific schedule for payment. The ACDL did not state as to the period, by which, possession was to be offered. It is a fact that it was a self-financing scheme and the Opposite Party handed over possession of the flat, in question, to the complainant at the price of Rs.39,07,451/-, which was indicated at the time of floating the scheme in the year 2008. As per common knowledge, price of the flat, in the meantime, has escalated and delay had gone to the benefit of complainant, and, as such, he has suffered no loss. As stated by the opposite party, in Paras 11 & 12 of its written statement, on merits, the market value of the dwelling unit, allotted to the complainant, has gone up three times. If the complainant was not agreeing to the terms and conditions of ACDL, he ought to have objected then and there. Once he complied with the terms of ACDL dated 18.11.2011, by making payments as per payment schedule, after taking over possession, it does not lie in his mouth to seek interest of Rs.6,25,192/- on Rs.39,07,451/- w.e.f. 18.11.2011 till the date of payment of first installment to the contractor and Rs.6,40,000/- @Rs.20,000/- average market rent for 32 months. Evidently, there was significant escalation in the prices during the intervening period of seven years, from 2008 to 2015.

22.       It is, thus, very clear that the complainant was given possession of the flat at the same rate, which was advertised in the year 2008. As per common knowledge and as specifically asserted by the opposite party, price of the flat, in the mean time, has escalated to the benefit of the complainant. The complainant is, therefore, not entitled to the relief prayed for.

23.       No other point was argued by the Counsel for the parties.

24.           Accordingly, this complaint bearing No.549 of 2017 is dismissed with no order as to costs.

25.           Now coming to similar complaints bearing Nos.37 , 53, 54, 55 & 56 all of 2018, which were reserved on the same date i.e. 23.04.2018, we take up complaint case No.37 of 2018 for disposal of these complaints.

26.              In complaint case bearing No.37 of 2018, the complainant, besides praying for declaring ACDL dated 13.12.2011 as illegal, null and void and not binding upon the complainant, has also sought the following relief:-

 

a)	Grant compensation of Rs.7,02,789/- on account of delay in construction and giving possession thereby committing deficiency in service.
b)	Repayment of the excess amount of Rs.60,051/- got deposited on account of Service Tax, be also paid along with interest @18% per annum from the date of payment i.e. 04.09.2015.
c)	Grant of compensation of Rs.2,00,000/- on account of mental agony and harassment caused by the OP by adopting unfair trade practice.
d)	For grant of litigation expenses to the tune of Rs.75,000/- as spent by the complainant.
e)	Any other relief this Hon’ble Forum deems fit in the peculiar facts and circumstances of the present complaint.

 

 

27.           More or less, similar reliefs have been sought in connected complaints bearing Nos.53, 54, 55 and 56 all of 2018.

28.       As is evident, the possession of the flat was given to the complainant at price fixed in the year 2008 and despite escalation in prices from the year 2008 till 2015, no liability of escalation in price, was imposed. The price of flat, in the instant complaint,  is Rs.17,15,744/- and the total of reliefs claimed by the complainant comes to Rs.10.50 Lacs. During arguments, at the preliminary stage, Counsel for the complainant(s), in all the complaints, argued that the Opposite Party (Chandigarh Housing Board) was duty bound to deliver possession of the unit(s), in question, after deposit of 25% of the amount after issuance of ACDL.

29.       The Counsel relied upon provisions as contained in Sub Clause 5 of Clause ‘II the Scheme’ and Sub Clause ‘x’ of Clause ‘X MODE OF ALLOTMENT’ of brochure issued for the scheme, Para 10 of the Acceptance-cum-Demand letter dated 13.12.2011 and Para 1 of the allotment letter dated 03.09.2015, as per which, the allotment of the dwelling units, under the scheme, was to be governed by the provisions of Haryana Housing Board Act, 1971, as extended to Union Territory of Chandigarh and Rules and Regulations made there-under from time to time, such as Chandigarh Housing Board (Allotment, Management and Sale of Tenements) Regulations, 1979 as amended from time to time (hereinafter to be called as Regulations). The relevant provisions of the Regulations relied upon by the Counsel, read thus:-

“7. Manner of payment of price and Allottee’s Obligations, -

(1) When a property is disposed of by sale, every applicant shall deposit  a sum equal to 25 per centum of the consideration money of the property or such amount as may be specified in the scheme. Such deposit shall be non-interest bearing unless otherwise declared by the Board to be interest bearing.

(2)    An applicant to whom the property has been allotted shall have to pay the balance amount of the consideration money (i.e. after adjusting the deposit) as may be specified in the allotment letter either in lump-sum or in such number of installments as may be prescribed therein.

(3)    If payment of the balance of condition money in installments, the allottee shall have to pay interest on the balance amount of premium at the rate as may be fixed by the Board by prior intimation.

(4)    xxxxxxx….

 

 

32.   Handing over of possession, -

(1) The possession of the property shall be handed over to the hirer on the fulfillment of the following conditions”-

(a)     The hirer has paid the first instalment and such other dues as have been demanded by the Board;

(b)    The hirer has executed the agreement mentioned in regulation 31.

(2)    In case of disposal of property by way of sale, the possession of the property shall be handed over to the allottee, after such allottee has paid 25 per cent of the consideration amount or such amount as is prescribed by the Board.”

 

30.              The above provisions do not, in any manner, stipulate that possession is to be handed over on payment of 25% of the consideration amount. From the afore-extracted provisions, it is clearly evident that “allotment” and “sale” are different and distinct. Clearly as per Clauses 7 and 32(2), possession of the property is to be handed over to the allottee after such allottee has paid 25% of the consideration amount or such amount as is prescribed by the Board in case of disposal of property by way of sale. Undoubtedly, in the instant case, there was no sale and rather the unit was allotted to the complainant by draw of lots and at a price, which was fixed/determined in the year 2008, i.e. 3 years before the issuance of ACDL in the year 2011. When ACDL was issued to him (complainant) vide letter dated 13.12.2011, it was clear that after paying a sum of Rs.2,57,362/- and three installments during a span of 1½ years, after interval of six months each, balance amount was payable at the time of handing over of possession. The complainant was, thus, well aware that possession would be delivered on a subsequent date, on payment of third installment. The complainant now cannot claim that once he paid Rs.2,57,362/-, he was entitled to possession. It is clearly evident from the contents of ACDL that no specific date for handing over possession was mentioned and payment was to be completed in a span of 1½ years and at the time of offer of possession. In case, the argument of Counsel for the complainant is accepted that the complainant was entitled to possession after making payment of 25% i.e. 10% at the time of booking and 15% within 30 days from the date of issuance of ACDL, then the complaint is hopelessly barred by limitation. The complainant has been making payments as per the schedule of payment; has entered into possession on 21.09.2015 and now at this stage, his plea that he was entitled to possession in the year 2011, is afterthought and is not sustainable being totally devoid of merit. As regards delay in construction and relief claimed on that count in the sum of Rs.7,02,897/-, it may be stated here that the scheme was floated in the year 2008 when the complainant deposited 10% of the price of the unit and 15% at the time of issuance of ACDL on 13.12.2011. The price of the unit, which was committed at the time of inviting the applications, in the year 2008, viz. Rs.17,15,744/-, remained unchanged, despite escalation in price(s) of the flat(s), nothing was charged from the complainant on account of escalation in the price of building material/labor etc.

31.       It is on record that the complainant also represented to the Opposite Party vide letter dated 16.10.2017  (Annexure C-14) to refund the excess amount charged and payment of an amount of Rs.8 Lacs on account of delay in giving possession of the unit, in question, which was replied by the Opposite Party vide letters dated 12.12.2017, 20.12.2017 and 08.01.2018 (Annexures C-16, C-17 & C-18). Vide letter (Annexure C-16), the complainant was informed that there was no provision for any compensation for the delayed possession. Vide letter dated 20.12.2017, the complainant was told that Service Tax was leviable. While explaining detailed reasons for delay of whole project, the Opposite Party in letter dated 08.01.2018 (Annexure C-18) informed the complainant, interalia, as under:-

“During the construction, the residents of SAS Nagar Mohali adjoining 3 Bed Room Flats stopped contractual agencies to take up construction of few blocks with the plea that due to 6-Storeyed flats, their privacy is affected. After lot of meetings with them, ultimately, the layout plan had to be got revised from the Department of Urban Planning, U.T., Chandigarh after shifting of few blocks from the Chandigarh/Punjab Boundary. Similarly, during the excavation of foundations of EWS Flats, underground P.H. Services were found and again CHB had to get the layout of few blocks revised and got it approved from the Department of Urban Planning, U.T., and Chandigarh.

CHB housing scheme has been carried out in a part of Sector 63 adjoining boundary of Mohali, the major portion of Sector falls under the MC, Mohali and the natural slope of the ground is towards Mohali. Therefore, it was necessary to dispose the sewerage towards Mohali and accordingly, necessary permissions to join sewerage & storm trunk lines to MC, Mohali was required. Inspite of best efforts, MC Mohali was reluctant to give such permission. Therefore, the matter was taken upto the highest level of Chairman, CHB and Secretary Engineering, UT Chandigarh with Punjab Govt. & after that MC, Mohali allowed connecting storm line with the main trunk line of Mohali and after making huge payment of Rs.6.36 crores. Municipal Corporation, Mohali, Punjab Govt. had consequently issued permission to join sewer lines of 984 flats with their main sewer trunk line in the year 2014. For laying of Load Distribution System, CHB has already deposited Rs.7.35 Crore with the U.T. Engineering Department in February 2015, the work of which was taken up by the UT Engineering Department. 

       Inspite of the unavoidable hurdles as explained above, CHB made all out efforts to complete the entire project at the earliest and the possession of the said houses were commenced in September, 2015.Moreover, the construction of the flats was also delayed because of ban on quarries of Sand and Bajri in UT, Chandigarh, thus there was shortage of construction material as well during that period. Thus, there were unforeseen circumstances and hindrances, which were surfaced during the construction work and these circumstances were actually beyond the control of CHB. However, the CHB has made all its best efforts to get the matter resolved. The delay in delivery of flats to the complete is not due to any negligence or willful act of Chandigarh Housing Board. The actual possession of the D.U was handed over on 21.09.2015 after issue of possession letter by the o/o CAO, CHB.”

32.       Undoubtedly, while dealing with the representation of the complainant, the Opposite Party explained all the force majeure circumstances/reasons, which led to delay in handing over of possession. The complainant has not averred anything in his complaint to controvert the reasoning given by the opposite party in Annexures C-16, C-17 & C-18.

33.       In view of ratio of judgment in Chandigarh Housing Board Vs. Jarnail Singh’s case (supra), which was further reiterated by this Commission in Wing Commander (Retd.) Sumer Singh Savant Vs. Chandigarh Housing Board’s case (supra), as extracted in Para 20 of this judgment, no ground is made out for any compensation on account of delay in handing over of possession due to delay in start of construction on account of force majeure circumstances.

34.       Qua the prayer of the complainants, in all these complaints viz.   37, 53, 54, 55 & 56 all of 2018, for declaring ACDL issued by the opposite party (Chandigarh Housing Board) as illegal, null and void and not binding upon the complainants, it may be stated here that relief sought is barred by limitation. It is a fact that in terms of ACDL, the complainants made payments and also got possession of the unit(s). It is not the case that the complainants have sought refund of the amounts deposited. Declaring ACDL as illegal, null and void, at this stage, which is time barred, would also mean that the amount towards sale consideration is to be refunded to the complainants. The prayer for declaring the ACDL as illegal, null and void is, thus, contrary to the other reliefs sought by the complainants.   

35.       For the reasons recorded above, the complaints bearing Nos.37, 53, 54, 55 & 56 all of 2018 deserve to be dismissed, at the preliminary stage. These complaints are, accordingly, dismissed with no order as to costs.

36.       Certified copy of this order, be placed on the file of consumer complaints bearing Nos.37, 53, 54, 55 & 56 all of 2018.

37.       Certified copies of this order be sent to the parties, free of charge.

38.       The file be consigned to Record Room, after completion.

Pronounced.

03.05.2018

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

 

 

(DEV RAJ)

MEMBER

 

 

 

(PADMA PANDEY)

MEMBER

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