Delhi

StateCommission

CC/1337/2018

AIR CMDE. B.K. GANDHI (RETD.) - Complainant(s)

Versus

DIRECTOR GENERAL, AIR FORCE NAVAL HOUSING BOARD - Opp.Party(s)

BINAY KUMAR DAS

12 Sep 2019

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments :12.09.2019

Date of Decision : 18.09.2019

COMPLAINT NO.1337/2018

            In the matter of:

 

Air Cmde. B.K. Gandhi (Retd.),

2534, Sector-D-2,

Vasant Kunj,

New Delhi-110070.………Complainant

 

Versus

 

Director General,

Air Force Naval Housing Board,

Air Force Station,

Race Course,

New Delhi-110003.                                    ……..Opposite Party

 

 

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                      Yes/No

2.      To be referred to the reporter or not?                                                                                                           Yes/No

 

Shri O.P. Gupta, Member (Judicial)

 

JUDGEMENT

1. Initially this complaint was filed in District Forum, new Delhi where it was registered as No.CC-628/14. The same was returned vide order dated 04.06.18 due to lack of pecuniary jurisdiction in view three member bench decision of NC in Amrish Shukla.
2. The case of the complainant is that in the  year 2006 OP invited application from the retired/ serving Officer for registration in Kharar (Greater Mohali) Scheme. He applied for category ‘A-I’ Flat measuring 1900 sq. ft. and costing Rs.30.78. Vide letter dated 18.01.07 OP confirmed the allotment. The projected time  for completion and for handing over possession was at the end of year 2009. The OP has completed  neglected to complete the project in time. The project had already been delayed for more than 5 years as on date of filing complaint.
3. With an ulterior motive to hoodwink the allottees OP held draw of incomplete flats on 16/17 July, 2011. Though the project was nowhere near completion, complainant was allotted flat no.H-204 with basement car parking no.323 and additional open car parking no.299. OP has not formally handed over the possession of the flat in habitable conditions.
4. In order to pacify the agitating allotted OP again issued  schedule of possession dated 05.01.12. Vide letter dated 31.05.12 OP proclaimed handing over of flat in end of 2012 with essential services fully functional and integrated. OP sent letter dated 05.01.12 demanding Rs.9,93,099/- without any justification. Vide letter dated 31.05.12 OP claimed that project had been impacted due to ban and stone aggregates. Vide letter dated 06.03.13 OP claimed that 5 blocks i.e. I,H,C,R and S were complete in all respects, handing over possession would commence at site w.e.f. 11.03.13.
5. Till 01.04.13 complainant had paid Rs.34,48,091/- against demanded price of Rs.44,41,190/- and project price of Rs.30,78,000/-. The OP charged Rs.80,000/- per flat for open car parking and another Rs.80,000/- for additional open car parking vide letter dated 31.05.11. Whole cost of construction including the cost of land has been paid by the allottees. In such circumstances OP can not again charge money in the name of parking space for the land which already belongs to allottees. Charging for stilt car parking and open  car parking by builder has been held unlawful and illegal by Hon’ble Supreme Court in Civil appeal No.2544 to 2556 of 2010 titled as Nahal Chand Lalu Chand Pvt. ltd vs. Panchali Cooperative Housing Society. Hence this complaint for handing over possession in habitable condition with all the impleaded services and directions to hand over complete  documents such as land allotment letter, conveyance deed in favour of the society, sanctioned building plan with peripheral service and pay Rs.20 lakhs for financial loss as well as mental agony, harassment and pain.
6. The OP filed reply affidavit raising preliminary objections that complainant is not covered within definition of consumer as defined in Section (2) (d) Consumer Protection Act. OP does not provide any services in lieu of any sale consideration. It is a society registered under Society Registration Act which is Welfare Organisation working on no profit no loss basis. The complainant has not exhausted arbitration clause contained in Clause 6 of the allotment letter. It was indicated in the terms and conditions of the allotment that area and cost of developing unit were tentative and  could be changed. Clause 16 provided that if due to unforeseen circumstances beyond the control of OP the project gets delayed, no interest and/or compensation shall become payable. Allottees who are not satisfied with the revised cost and area of the  DU were also given an option of withdrawal  vide letter dated 28.02.08. Hon’ble High Court of Punjab and Haryana vide order dated 17.05.10 banned mining work in Punjab State which resulted in delay in construction/ completion of the project.
7. The complainant filed replication and his own affidavit in evidence. On the other hand the OP filed  affidavit of Shri B.S. Narola, Assistant Director, Admn. (Legal). Both the parties have filed written arguments. I have gone through the material on record and heard the arguments. It may be mentioned that OP moved an application  for impleading contractor  M/s. Om Prakash Surender Mohan as a party after conclusion of hearing, in 2019. The said application has been dismissed vide order dated 12.09.19.
8. On merits it may be mentioned that complainant submitted that now after 13 years he is no more interested in the flat particularly when the same is not in habitable condition and OP is demanding enhanced cost. The Hon’ble Supreme Court has held in Pioneer Urban land and Infrastructurer vs. Govindan Raghavan Vol.II(2019) CPJ 34 that complainant can not be compelled to accept the possession offered after two years of stipulated period. It has also been held that any clause in the agreement which is unfair and unreasonable cannot be enforced. So the clause providing that allottee will not be entitled to any interest or compensation is not enforceable.
9. The complaint is allowed. OP is directed to refund Rs.34,48,091/- alongwith interest @9% till the date of payment till the date of refund.
10. Copy of the order be sent to both the parties free of cost.
11. File be consigned to record room.

 

(O.P. GUPTA)                                                     

MEMBER (JUDICIAL)