JUDGMENT

                                                                PER : Hon. Member, Ms. PREETHI CHAMIKUTTY

1. The present complaint is filed under Section 11(2) of Consumer Protection Act 1986 by Complainant praying for directions against Opposite Party(O.P.) to comply with their statutory obligations, as well as pay him compensation and costs towards present complaint.

2. Brief facts of the complaint is as under :

1. Complainant states that she was looking for a residential house and made application for house under MHADA Scheme for allotment of house. As per lots drawn on 11.07.2006 she was winner on priority No.111, and was allotted Flat no. 209 admeasuring 291.83 sq.ft. in Building No. 104 A-F under code 138(Part) Priority at G.P. (Rajiv Gandhi Prakalp) Mankhurd(hereinafter referred to as ‘Flat’). Copy of allotment letter dt. 20.04.2012 is at Annexure A of complaint. Complainant states that Director Marketing did not take any steps to issue offer letter to accept allotment of Flat and direct Complainant to pay its costs thereby causing delay purposely of four and half years. Complainant states therefore she was forced to run from pillar to post by approaching officers, down to clerks for obtaining offer letter of the said Flat. Complainant states that finally Marketing Director issued provisional offer letter, dt. 31.3.2021 directing her to pay price of flat of Rs. 5,30,573/- including penal interest @ 1% over the original cost of Rs.3,22,135/- Complainant accordingly deposited the said amount in Bank of Maharashtra in two installments on 25.04.2011 and 21.06.2011 for Flat having area 292.85 sq.ft. built up. Copy of Provisional letter dt. 31.3.2011 is at Annexure B of complaint

2. Complainant states that Director Marketing had purposely delayed possession letter for one year therefore she had to make complaint to Hon. Lok Ayukta Maharashtra state by her letter dt. 8.12.2010, after which O.P. issued possession letter dt. 20.4.2012 and without taking penal interest. Complainant states that without any fault of hers O.P. was demanded penal interest, as there was no delay in complying with requirements on her part, and therefore she is not liable for penal interest. Copy of possession letter cum possession receipt is at Annexure C of complaint.

3. SComplainant states that one Mr. Pramodh Tukaram Kasare was occupying and was in possession in allotted flat and bathroom door was broken and light meter was in his name, therefore they made complaint by letter dt. 26.4.2012 to MHADA, which copy of letter is at Annexure D of complaint. Complainant states till date O.P. have not replaced the light, flooring and door, and ultimately at her own cost she had to replace light, flooring and door. Complainant says she could not take possession of flat allotted to her despite issuance of possession letter as flat was in possession of one Pramod Tukaram Kasare due to malpractice done by O.P. through their staff. Complainant further states neighbor of adjusting room have unauthorisly put grill, which is causing her hardship, which she complained to MHADA authority by letter dt. 17.4.2014, which copy is at Annexure G of complaint. Complainant states that initially the area of flat was agreed 292.82 sq.ft. for Rs.3,22,135/-, and the actual carpet area provided by MHADA is 297.83 sq.ft. One pamphlet issued by MHADA is at Annexure H of complaint. Complainant further states that MHADA has not sent her name to society, and therefore she could not be member, for which she has issued letter dt. 10.12.2013 to MHADA, but till date MHADA has not sent name of Complainant to society and hence the procedure for membership could not be completed. Copy of letter dt. 10.12.2013 is at Annexure I of complaint. Complainant states after lot of pursuance by Complainant MHADA issued letter dt. 9.5.2014 to Sr. Police Inspector Mankhur Police Station, however MHADA did not take assistance of police neither removed unauthorised grill. Complainant states O.P. is not interested in complying their statutory and contractual obligations and hence she is approaching this Forum for directions.

4. Complainant states that the cause of action is continuous and prays for granting her prayers.

3.                    After admission of complaint, notice was issued to Opposite Party, but they did not file their Written Statement within prescribed time limit, hence a No Written Statement order was passed against them on 30.6.2016. Complainant has filed her Affidavit of Evidence which has same averments as made in her main complaint. Thereafter Complainant filed one application dt. 24.1.2017 to amend prayer clause of her complaint, which has been allowed vide roznama dt.26.4.2019. Complainant has filed her Written Arguments which are a repetition of averments made in her complaint, and as per roznama dt. 20.11.2020, it can be seen that Complainant’s Advocate has relied on his written arguments as oral arguments and the matter was placed for final orders.

4.                    After going through all documents in the matter and hearing Advocate for Complainant the following points arose for our consideration :

• REASONS

5. As to Point No. 1:                  In the matter of Lucknow Development Authority v/s. M.K. Gupta, AIR 1994, SC 787 Hon. Supreme Court has laid down the ratio, which we rely upon in this instant case, to answer Point No. 1 in affirmative.

6. As to Point No. 2:                 Despite receiving the notice and making an appearance, O.P. have failed to file their Written Statement, therefore all averments made by Complainant has remained unchallenged. Complainant’s allotment and right on the Flat is beyond doubt. At Annexure E of complaint, Complainant has produced one electricity bill for May 2012 in name of Pramod Tukaram Kasare, having the same address as that of Complainant, which does show that there were certain anomalies due to which the person Pramod Tukaram Kasare was able to occupy the Flat allotted to Complainant by O.P. and get an electricity meter in his name. Similarly in document at Annexure F, O.P. has given NOC to Reliance Energy for transfer of the Energy meter in name of Complainant. Therefore the said averment of Complainant is established. Similarly Complainant’s averment of one neighbour putting grill illegally and hence Complainant facing hardship is also proven by letter at Annexure G & J, but as per her averment even after sending letters O.P. has not taken any steps to remedy her problem, and therefore we consider that the problem still persists due to inaction of O.P. and it cannot be denied that Complainant still faces hardship due to such inaction of O.P. The other averment of Complainant that O.P. have not sent her name to Society, due to which her society membership is still not completed, has also remained unchallenged, and the letter dt. 10.12.2013 has also been received by O.P. on the same date.

7.                    In a city like Mumbai having a place of one’s own is just one part of the struggle, thereafter due to inaction of either Soceity or in this case authority like MHADA, Consumers are forced to bear much anguish and agony of a regular basis, which in turn forces them to knock on the doors of court. Therefore we can concur with hardships faced by Complainant, and opine that O.P. is guilty of deficiency of service and unfair trade practice. We answer Point No.2 accordingly.

8. As to Point No. 3 & 4 –           Complainant is seeking reimbursement of costs incurred for broken door and flooring, also for not providing area of flat and certain amount and interest on the said amount. However in support of such reimbursement Complainant has not annexed any bills, hence we are only in a position to grant costs for one plywood door of bathroom, and certain costs for floor repairing. As far as compensation for deficit area is concerned, although we concur with the difference of area mentioned in brochure at Annexure H, compared to area mentioned in Allotment Letter filed at Annexure A of complaint, we are unable to assign a value to the deficit area received by Complainant. Therefore it is required that Complainant files a proper certificate about the deficit area and the value for such deficit area to assist the court. Leave Granted. Similarly the prayer of 34792 plus interest, has not be clarified nor supported through documents by Complainant, hence we are unable to grant the same. Leave Granted. We answer Point No.3 & 4 accordingly.

9. All pleadings in present case is made in English, hence the judgment is pronounced in English. Considering the facts and circumstances we proceed to pass the following order :

O R D E R

1.        The Consumer Complaint No. CC/53/2015 is partly allowed.

2.        Opposite Party is held guilty of deficiency of service and unfair trade practice for reasons laid out in detail hereinabove.

3.        Opposite Party is directed to pay Complainant Rs.60,000/- (Rupees Sixty Thousand only) towards costs of broken door and flooring within two months from the date of this order, failing which the said amount to carry an interest of 8% p.a. from 05.02.2015 (date of filing of complaint) until realization. Leave is granted to file new complaint for deficit area and prayer in respect of 34792 plus interest.

4.        Opposite Party is directed to pay Complainant Rs.25,000/- (Rupees Twenty Five Thousand only) towards compensation for mental agony within two months from the date of this order.

5.        Opposite Party is directed to pay Complainant Rs.20,000/- (Rupees Twenty Thousand only) towards costs for this complaint within two months from the date of this order.

6. Copy of the final order be given to all parties as per provisions of Consumer Protection (Consumer Commission Procedure) Regulations, 2020 Regulation 21(1) and Regulation 18(6).

7.      Certified copy of the final order be given to all parties as per provisions of Consumer Protection (Consumer Commission Procedure) Regulations, 2020  Regulation 21(1) (3).

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