BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SHIMLA, H.P.
Consumer Complaint No: 14/2006
Date of presentation: 16.01.2006
Date of decision: 31.07.2009
Shri Neeraj Sharma S/O Shri K.D. Sharma,
R/O Block C-30/2, SDA Colony,
Vikas Nagar, Shimla-171009.
… Complainant.
Versus
1. Municipal Corporation Shimla through its Commissioner, The Mall, Shimla-171001.
2. The Executive Engineer (Road & Building), Municipal Corporation Shimla-171001.
…Opposite Parties
For the complainant: Mr. Ratish Sharma, Advocate.
For the Opposite Parties: Mr. Vijay Arora, Advocate.
O R D E R:
Sureshwar Thakur (District Judge) President:-
This complaint has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986, against the OPs-Board. The complainant avers that he is a practicing lawyer in Shimla, hence, applied for the Advocate chambers, after purchasing brochure, and deposited a sum of Rs.75,200/- on 11.05.2001 as earnest money. He further avers that the OPs remained silent and did nothing towards delivery of possession and it is only after a letter dated 07.06.2002 was written to the OPs, that, on, 15.06.2002, during the draw of lot, he was allotted, Chamber- D-4, and deposited entire sale consideration amount of Rs.3,00,800/- vide cheque bearing No.294582, dated 23.11.2002. He further avers that the basic amenities as promised in the brochure, which allured him to purchase the aforesaid chamber, was not made available to him, despite his having paid the entire consideration amount. He further proceeded to aver that as per auction notice, the space kept for kitchen on the second floor and common space adjacent to toilets on the second floor, were put to auction, the price whereof was kept Rs.30,000/- per square meter. He further avers that the cost of construction from 05.03.2001 to 09.12.2002 , has been reduced drastically by Rs.10,000/-, whereas, initially, the price of Rs.40,000/- per square meter was charged from him, keeping in mind the facility of the kitchen, common space, lift, shopping complex promised to be provided, whereas, the OPs converted into chamber the common space and kitchen provided on the second floor, the shopping complex on the top floor was scrapped and the lift, which was to be provided, was also scrapped off, thereby changing the original plan as detailed in the brochure. He further avers that the price charged from him, for the aforesaid facilities, which are no more being provided to him, by the OPs, should be remitted to him, as the OPs have indulged in an unfair trade practice. It is further averred that the OPs in the third quarter of 2003, sold the part of the 1st floor comprising of offices G1 to G10 & F, to HPSEB at the rate of Rs.25,000/- per square meter. He further avers that he deposited a sum of Rs.75,200/- on 16.05.2001, and Rs.3,00,800/- on 23.11.2002, totaling Rs.3,76,000/-, as such, he is entitled for interest for delayed delivery of the Chamber and for refund of the price difference charged from him and other allottees. The complainant further proceeded to aver that there is no proper lighting on the stairs or in the corridors, leading to the chambers and further that there is no facility for drinking water and cleanliness in the complex. Hence, it is averred that there is apparent deficiency in service on the part of the OPs and accordingly relief to the extent as detailed in the relief clause be awarded in his favour.
2. The OPs, in its written version, to the complaint, raised preliminary objections vis-à-vis maintainability of the complaint in as much, as, it being false, frivolous, vexatious and vague, there being adjudication of intricate and complicated questions/issues of facts and law necessitating plethora of records to be produced and estoppel. On merits, it is contended that the complainant had applied the Chamber under Self Financing Scheme and cost charged for this purpose is as per the terms and conditions of brochure, whereas, the common area, stairs, open spaces, parking or toilets, public amenities as approved in the lay out plan shall be property of the Municipal Corporation, Shimla who reserves the right to use such space for any other purpose and its discretions, as, and when, required. They further contend that the construction work was awarded to the Contractor on 12.04.99 and likely date of completion of the said project, as per contract, was 30.04.2001, but, due to untimely heavy rains during the month of March, 2000, huge land slide and soil erosions, took place at the site and the work was stopped, hence the site was got inspected by Geo Technical Engineers and structural experts, who suggested the OPs, to take protection measures and as such retaining wall had to be constructed. Hence, the delay, if any, had occurred due to land slide, which was beyond their control. The OPs further contended that in so far as the provision of lift is concerned, it was not particularly for the allottees, as it was a, freight lift only for Godowns, as per the provisions in the brochure. The rate was charged for the Chamber of the complainant on carpet area basis and was not included for all the passage of buildings, and he was charged strictly, as per the terms and conditions of the brochure and as per the payment schedule and as per the contract entered interse the parties. The common area, stairs, open spaces, parking or toilets, are public amenities as approved in the lay out plan and is the property of OPs, who reserve the right to use such space for any other purpose and its discretions. Hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.
3. Thereafter, the parties adduced evidence, by way of affidavits, and, documents in support of their respective, contentions.
4. We have heard the learned counsel for the parties at length and have also thoroughly scanned the entire record of the case.
5. The complainant, is, not denied to be a consumer under the OPs. The complainant after having deposited the entire sale consideration, as desired, by the OPs from him, had, come to be allotted an Advocate chamber No. D-4, measuring 15.20 square meters, on the second floor of the advertised complex. The rate at which the aforesaid property was so sold to the complainant, was, Rs.40,000/- per square meter. Though, the property as purchased and of which the possession was initially promised to be handed over on 30.09.2001, yet, its possession under protest was taken by the allottee only in, January, 2004. The complainant, is, aggrieved by the belated delivery of possession of the property of which the OPs had received the entire sale consideration, which belated delivery of possession had, precluded him in using the premises, at, the earliest, hence, causing financial loss to him.
6. The OPs, in its reply to the said grievance as ventilated in the complaint, has, contended that, the project could not be completed within the stipulated period owing to untimely heavy rains, having caused land slides and soil erosions, at, the site, which necessitated construction of a retaining wall, not, initially included, in, the original agreement. However, no, report of the expert has been placed, that, the delay, in, the completion of the project as promised by the OPs, had, arisen for the reasons as detailed in the reply of the OPs, so as to repulse the gravity of the grievances, as, ventilated by the complainant. Obviously, for, lack of report of the expert substantiating the said contention in the reply of the OPs, it is to be, hence, concluded, that, attribution of heavy rain having caused land slides at the site of work, remains unsubstantiated, and is, as such, incredible. naturally, for lack of substantiation, of the above reason as, attributed by the OPs, for, the delay in the completion of the project, by the OPs, he, was concomitantly not given the possession thereof, within the time stipulated, as such, was deprived of, its, use resulting in some loss of income to him accruable to him on his using the premises for practicing law their. In taking the above view, that, for lack of placing on record the report, of, a, technical expert, the, attributed delay in the timely completion of the project, as, contained in the reply of the OPs, hence, suffers from falsity, we, are supported by case law as reported in 2006 Latest Himachal Law Judgment of the Hon’ble HP State Consumer Commission, Shimla.
7. Moreover, the OPs, also, do not deny the fact that under Annexure C-1, which, is, a copy of brochure inviting offers for purchase of the property as detailed in it, their was, a, promise to the intended purchaser, that, certain basic amenities of kitchen and common space would be provided to the intended allottees. The complainant, being, goaded by the said promise had applied for purchase of the premises of which, he, ultimately under protest took possession, in, the year 2004. The rate at which property was sold to him, was, quantified atRs.40,000/- per square meters and given the promise by the OPs, to, provide basic amenities, on, the floor, on, which the chamber of the complainant, is, located and which basic amenities were to be comprised in the OPs providing, for, a kitchen and common space, it, appears that, hence, with the added attraction the rate at which the premises were sold to the complainant, was, so, quantified by the OPs and the, former, too, lured by the attraction had prior, to, allotment tendered the entire sale consideration. However, the said amenities did not ultimately come to be provided, hence, stripped the project of its attraction depriving the OPs of the right to assert for a higher rate from the complainant.
8. The OPs, undoubtedly, did, reserve the right to sell, the, common spaces in which were to be comprised the amenities which were promised to be provided to the complainant, the OPs, while exercising their right of sale of those portions of the property, hence reneging from their promise, sold premises in the same project, subsequently, at, a, lesser rate than the premises in it were sold, to, the complainant, as such, perpetrated a manifest discrimination, upon the complainant. The OPs were legally enjoined, to, treat the complainant at par with other allottees who were subsequently allotted premises in the same complex. In so far, as, in theirs charging rates for selling premises in the project. More so, when with theirs coming, to, deprive the complainant of the basic amenities to him, which promise while comprising a representation to him, in case had come to be assuming legally reneged, a, commensurate reduction in the rate per square meter of the property, allotted to him, was to be afforded by the OPs. Theirs having not done so, has also, resulted in his being treated unequally, hence against discriminated by the OPs.
9. The arbitrary and discriminatory treatment which the OPs meted to the complainant, is, brazen and is compounded by the fact that in the same premises, the, OPs had sold premises, to, the HPSEB, at, Rs.25,000/- per square meter and, that, too, at, a time subsequent to the time, at, which the complainant had deposited the entire sale consideration qua the premises allotted to him. The rate at which the HPSEB, purchased the premises in the same complex in which the premises of the complainant, are, located, has, not come to be repulsed or denied on the part of the OPs, hence, as, stated above brings to the fore the discriminatory rates, at, which various premises located in the same complex in which the premises of the complainant, are, also located, were, being charged by the OPs and that, too, without any tenable reasons, such discrimination requires to be deprecated, as it, has caused financial loss to the complainant, inasmuch, he has paid a higher rate for sq. meter for property belatedly delivered to him, than other allottees, in the same project, hence, also, on the said score, has been treated unequally.
10. Moreover, even the fact that the facility of a lift was promised to be offered to the allottees, of, the premise, yet, the same did not come to be provided by the OPs merely, on, the strength of a contention raised, by, it in its reply that, it, was envisaged to be a freight lift, which, fact does not attain substantiation from the brochure. As a sequel, the promise of the facility of lift to the complainant remained unfulfilled by the OPs, whereas, the complainant was charged a higher rate on his availing the said facility on allotment of premises to him, hence, its not having come to be ultimately provided to the allottee , though, obviously, was a motivating factor in the OPs charging a higher rate from him, as such, was a factor to be borne in mind by the OPs, at, the, time of their allotting the premises to the complainant, in as much, as, when at that stage the promise of providing to him the facility of a lift remained unfulfilled, though, its promise hired the complainant hence, the said breach of promise, did necessitate consequent reduction and de-escalation in the rate at which the premises were sold to him by the OPs. However, no, such de-escalation, is, afforded, even despite, the fact that entire sale consideration amount had come to be deposited by the complainant. As a sequel, we are of the firm view that the act of the OPs in metting discriminatory treatment to the complainant, in as much, as, charging from him a higher rate per square meter qua the premise purchased by him, that, what was charged by them from the HPSEB, have, treated without any sufficient cause equals unequally, hence, committed an unfair trade practice and also cause financial loss to the complainant.
11. The complainant while corroborating the fact that the OPs has denied certain basic amenities to him, in much, as, they have failed to provide basic amenities and, also, theirs not providing the facility of the drinking water and toilets, as well, lack of proper hygienic condition of cleanliness, in, the second floor has depended upon the affidavits of Advocates occupying the said premises. The said fact has not come to be denied or controverted on record by the OPs. Even though, in so far, as conversion of space meant for toilets, by the OPs was a right reserved in favour of the OPs, yet, the OPs, is, obliged to provide toilets and also, to, provide drinking water in the complex which comprise basic amenities. Even if the space marked for toilets have been converted by the OPs under the right reserved in them for purpose other than, such spaces were meant for, nonetheless the provisions of toilets being a basic amenity, the OPs, are hence, being obliged to provide toilets to the allottees, as also, to maintain proper hygienic and cleanliness of the premises by taking appropriate steps in the said direction. However the expenses for the maintenance of hygienic conditions and cleanliness of the premises would be borne by the allottees on their making proportionate payments, to, the OPs, for, their providing such facilities to them.
12. The effect of the above discussion, is, that we are constrained to allow the complaint in the following manners:-
i) That the additional rate per square meter at the rate of Rs.15000/- as charged by the OPs from the complainant, shall be refunded to him, along with interest at the rate of 9% per annum from the date of, its, having been received by the OPs;
ii) That the entire amount as received by the OPs from the complainant shall be levied interest at the rate of 9% per annum from the date of its deposit, till date of handing over of the possession by the OPs, which interest as levied upon, it, shall be refunded to the complainant;
iii) That the OPs shall provide all the basic amenities like, cleanliness, hygienic condition of the premises, subject to the expenses for the maintenance to be borne by the allottees, on their making appropriate payments, to the OPs;
iv) That the OPs shall also provide the facility of toilets, on such conditions, as deemed fit by the OPs;
v) That the OPs shall pay Rs.1500/- as cost of litigation to the complainant;
vi) That the OPs shall comply with this order within a period of forty five days after the date of receipt of copy of this order.
13. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.
Announced on this, the 31st day of July, 2009.
(Sureshwar Thakur)
President.
NMehta) (Karuna Machhan) (Charanjit Singh)
Member Member.