BIMLESH SAKHUJA vs ANSL HOUSING & CONSTRUTION

These revision petitions arise out of single order of State Commission; hence, decided by common order.

These revision petitions have been filed by both the parties against the order dated 24.8.2007 passed by the learned State Consumer Disputes Redressal Commission, Delhi (in short, ''the State Commission'') in Appeal No. 1075 of 2006 - Bimlesh Sakhuja Vs. Ansal Housing & Construction Ltd. by which, while allowing appeal, order of District forum dismissing complaint was set aside.

Brief facts of the case are that residential plot No. C-D-86 measuring 299 sq. yards @ Rs. 2100/- per sq. yards in East End Complex in Tronica City was allotted to complainant on 22.12.1997 by OP/M/s. Ansal Housing and Constructions Ltd. against initial payment of Rs.63,836/- made through cheque dated 22.12.1997. On receipt of invitation card from OP, complainant attended Bhoomi Pujan on 12.2.1998 at site and there he learnt from other allottees that they were given discount of Rs.100/- to Rs.150/- per sq. yard by OP as well as by their agents and she realized that she was also entitled to discount of Rs.44,850/-. The other grievance of the complaint had been that the plot allotted to her had been changed and she was entitled for the allotment of the same plot which was initially agreed upon, i.e. C-D-86, East and Complex in Tronica City. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint and submitted that location of the plot allotted was contractual in accordance with layout plans approved by local authorities. It was further submitted that OP has not discriminated as to price of plot vis-?-vis other allottees from the complainant and if any discount is given by agents to the allottees who booked their plots through agents, OP is not liable and prayed for dismissal of complaint. Learned District Forum after hearing both the parties dismissed complaint. Complainant filed appeal before learned State Commission and learned State Commission while allowing appeal, allowed complaint and directed OP to handover possession of plot no. C-D-24 to the complainant on payment of Rs.3,69,824/- besides EDC charges of Rs.38,783/-, Water connection charges Rs.1700/-, sewer connection charges of Rs.2700/- and OP was further directed to pay interest @ 10% p.a. from the date of deposit till date of order against which both the parties preferred revision petitions.

Heard learned Counsel for the parties and perused record.

Learned Counsel for the complainant submitted that OP committed deficiency in changing plot number increasing area and allotting plot near burial ground; even then, learned State Commission committed error in not awarding compensation; hence, his revision petition be allowed and impugned order be modified. On the other hand, learned Counsel for the OP submitted that change of location and size was within right of OP, but even then, learned State Commission committed error in allowing appeal and complaint; hence, revision petition be allowed and impugned order be set aside.

Perusal of record reveals that complainant applied for allotment of plot no. C-D-86 measuring 299 sq. yds. on 22.12.1997 and she was making payment of amount as per payment plan. It appears that by letter dated 20.4.1999, OP apprised complainant about outstanding arrears of Rs.44,850/- pertaining to aforesaid plot no. C-D-86. It appears that after this letter, layout plan was sanctioned by appropriate authority and location of complainant''s plot was changed from C-D-86 to C-D-24 which is near burial ground and plot of size was also increased from 299 sq. yds. to 430 sq. yds on account of which, complainant filed complaint before District Forum.

Learned Counsel for the complainant submitted that OP could not have shifted plot near burial ground and could not have increased area of plot without consent of complainant. On the other hand, learned Counsel for the OP submitted that as per terms & conditions of application form which runs as under - 3. The applicant(s) has accepted that the layout plans have not been sanctioned till date. The layout plans are tentative and have been seen by the applicant (s) and agrees that the company may effect such variations/additions/alterations/deletions/modifications, etc.

The Company reserves the right to change the location/number/area of the plot OP, was within its rights to change location as well size of plot without any consent of complainant.

Perusal of aforesaid clauses of application form makes it crystal clear that on the date of application, layout plans were not sanctioned and complainant agreed for any variations/additions/alterations/deletions/modifications, etc. regarding change of location/number/area of the plot. In such circumstances, strictly speaking, no deficiency can be imputed on the part of OP in changing location of plot as well in increasing area of plot. But as location has been shifted near burial ground and area of plot has been increased by almost 50%, OP should have obtained consent from Complainant for aforesaid changes and in case complainant was not willing to accept allotment of C-D-24, OP should have returned money along with interest and in not doing so, OP has committed deficiency and complainant is entitled to refund of deposited amount with interest.

During the course of arguments, learned Counsel for the OP apprised that plot no.C-D-86 has already been allotted to some other person and after dismissal of complaint, OP has also allotted C-D-24 to other person; and OP is not in a position to comply with directions of learned State Commission in allotting plot no. C-D-24 to the complainant. During the course of arguments, learned Counsel for the OP agreed to refund money with 12% p.a. simple interest whereas, learned Counsel for the complainant submitted that complainant is ready to receive refund of amount with 12% compound interest.

As both the plots have already been allotted by OP to different persons and neither plot number C-D-86 nor plot no. C-D-24 can be handed over by OP to the complainant, it would be appropriate to direct OP to refund amount with 15% p.a. simple interest instead of 12% agreed by OP and 12% compound interest wanted by complainant.

Consequently, revision petitions filed by both the parties are partly allowed and order dated 24.8.2007 passed by learned State Commission in Appeal No. 1075 of 2006 - Bimlesh Sakhuja Vs. Ansal Housing & Construction Ltd. is modified and complaint is partly allowed and OP is directed to refund deposited amount to complainant with 15% p.a. simple interest from the respective dates of deposit till payment. Parties to bear their costs.