Yogesh Nandlal Heda vs M/S. Subal Construction & 3 Ors.

This revision petition has been filed by the petitioner Shri Yogesh Nandlal Heda against the order dated 23.07.2013 of the State Consumer Disputes Redressal Commission, Maharashtra (in short 'the State Commission') passed in First Appeal No.A/10/971.

Brief facts of the case are that the petitioner/complainant booked two flats with the request to combine them together with the respondent No.1/opposite party No.1. He paid Rs.2,61,750/-. The project was coming up on land held surplus under the provisions of Urban Land Ceiling Act, 1976. The Government had granted the permission to raise construction only for economically weaker sections (EWS) and for persons who do not hold any unit in that city. The opposite party did not allot the flat to the complainant as he did not submit the affidavit in respect of not holding any unit in the city as alleged by the opposite party. The complainant then filed a consumer complaint before the District Consumer Disputes Redressal Forum, Kolhapur (in short 'the District Forum') being complaint No.126/1995, which was contested by the opposite parties. The District Forum dismissed the complaint on the ground that the complainant was not eligible to apply under the scheme, however the District Forum directed opposite parties to refund the amount of Rs.2,61,750/- deposited by the complainant without any interest.

The complainant preferred appeal bearing No.A/10/971 before the State Commission and the State Commission dismissed the appeal vide its order dated 23.07.2013.

Hence the present revision petition.

Heard the learned counsel for both the sides and perused the record. The learned counsel for the petitioner/complainant stated that the complainant had filed the affidavit dated 28.12.1994 with the opposite parties. It was also produced before the District Forum, but the District Forum has given a finding that the affidavit was not filed with the opposite parties. It was stated by the learned counsel that there was no paper given by the opposite parties that the complainant was required to file an affidavit.

Learned counsel for the petitioner/complainant stated that the State Commission also further held that there was no concluded contract between the petitioner and respondent. It has been submitted that the respondent builder has acknowledged the consideration amount by demanding and accepting the instalments against the booking of the said flat and therefore it was a case of implied contract where the consideration was accepted in lieu of promise to deliver the possession of the flat in question.

It was further stated by the learned counsel for the petitioner that the State Commission, even though found that builder was deficient in rendering service to the petitioner, did not grant any interest on the instalments paid by the petitioner to the respondent against the booking of the said flat and as such the denial of relief to the petitioner has resulted into serious miscarriage of justice to the petitioner.

Learned counsel for the petitioner/complainant finally stated that the complainant has paid a major amount of the consideration and therefore, flat must be allotted to the complainant.

On the other hand, learned counsel for the respondents/opposite parties stated that the land on which the project was to be developed was the surplus land declared under the Urban Land Ceiling Act, 1976. The Government had put the condition that the project will be only for economically weaker sections (EWS house) and houses will be given to those persons who do not have residential unit. The complainant was advised to file this affidavit and to complete other formalities. However, the complainant did not file the affidavit and finally no allotment could be made to the complainant. On 10.10.1994 the opposite parties again sent a notice to the complainant clearly informing the status of the land and requirement to be fulfilled for allotment of the EWS house. The complainant replied on 21.10.1994 to this letter, however, he did not complete any formality neither filed the affidavit. It is wrong to say that the complainant filed the affidavit with the opposite parties. It has been stated in the rejoinder filed by the complainant to the written statement of the opposite parties that the complainant had handed over photocopy of this affidavit dated 28.12.2014 to one employee of opposite parties namely Mr. Mahajan. It has been further stated that the complainant had not kept the original with him and he also enclosed the photocopy of the same with the rejoinder. It was argued by the learned counsel for respondents that when the requirement was that the original affidavit should be filed with the opposite parties, why only photocopy was given? Moreover the original is not with the complainant. The complainant has not stated as to what happened to the original affidavit. Thus, the learned counsel alleged that this affidavit was the forged one and was never submitted to the opposite parties. The District Forum has observed the following:-

"9). This Forum has heard arguments of both the advocate extensively and at length. The property having cts no.1250-B/1 B/3 was owned by Satyajeetsing Hindurao Ghatge mentioned in the complaint. The said property was declared surplus land. The owner Ghatge has got the scheme sanctioned on the said surplus land u/s 20 of the Urban Land Ceiling Act. The State Govt. accordingly has passed orders on 16.11.1992. The forum has thoroughly perused the said order. Original land owner Satyajeetsing Ghatge has given power to develop said property to O.P. a building contractor. This fact was noticed by the forum. The forum has thoroughly perused condition No.8,9,10, 11,12 and 20 of the order dt. 16.11.1992 granting sanction to the scheme on surplus land mentioned in the complaint. As per the provisions of conditions the unit is to be sold to the person belonging to economical weaker section. But considering the fact that the complainant and his family members owns two storey bungalow having 10000 sq.ft. area in Kolhapur city. So also agriculture land is registered in the name of family members of complainant. So also the complainant and his family members owns business in T.V. electric appliances Refrigerator etc. Distributorship of BPL company is the name of complainant. These facts was brought to the notice of this forum by the advocate on behalf of O.P. in the course of arguments considering land scheme sanction order dt. 16.11.1992 and conditions the complainant is not belong to the Economical Weaker Section. The O.P. has also mentioned in his say and affidavit that the complaint has not fulfilled the conditions therefore no agreement for sale of unit mentioned in the complaint was executed."

Thus, the learned counsel for the respondents/opposite parties stated that the complainant does not fulfil the basic criteria for eligibility under the scheme as he does not come under the EWS category. Thus, from any consideration, the complainant is not entitled to get residential unit in the said project. However, the State Commission has ordered refund of the amount of Rs.2,61,750/- paid by the complainant without any interest. Both the fora below have given concurrent finding that the complainant is not entitled to a unit in the project in question and the facts cannot be reassessed at the stage of revision petition by this Commission, therefore, the revision petition needs to be dismissed.

I have carefully considered the arguments advanced by the learned counsel for the parties and have examined the material on record. Both the fora below have given concurrent finding that the complainant is not entitled to get a residential unit in the project as he does not fulfil the necessary condition to be eligible for any allotment in the project. So far as the submission of affidavit is concerned, it is seen that in the rejoinder, the petitioner has clearly stated the following:-

"2). The contents in item no.5 is false. The defendant has handed over zerox copy of affidavit which is completed on stamp paper of Rs.20/- on dt.28-2-94 which is given by Consultant of Flat System Mr. Mahajan as per exexption order of dt. 16/11/92 to defendant. But after it plaintiff stated defendant " I have kept the original copy of the affidavit". The defendant had taken disadvantage of plaintiff's mistake and erected calse. Xerox copy of the said affidavit is enclosed herewith."

From the above it is clear that the complainant has not claimed that the original affidavit was filed with the opposite parties. Moreover, no receipt has been taken by the complainant for filing of the affidavit from the opposite parties. The opposite parties have categorically denied the receipt of such an affidavit and the complainant has not been able to show any proof that the affidavit was filed with the opposite parties.

From the observation of the District Forum as mentioned earlier, it is clear that the complainant owns a two storey pakka house, some agricultural land and one shop and therefore, the District Forum has not considered him to be a person eligible under the EWS category. The State Commission has also confirmed the same. Against the concurrent finding of fact, the scope under the revision is quite limited and this Commission cannot reassess the facts as held by Hon'ble Supreme Court in Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H&R Johnson (India) Ltd. and others, (2016) 8 Supreme Court Cases 286, as under:-

"23. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons."

I find some force in the argument of the learned counsel for the petitioner that the State Commission has not awarded any interest on the amount of refund on the ground that there was no concluded contract in the matter. The fact of the matter is that amount remained deposited with the opposite parties for quite sometime and therefore, the complainant is entitled to some interest on the deposited amount as held by Hon'ble Supreme Court in Alok Shanker Pandey Vs. Union of India &Ors., II (2007) CPJ 3 (SC) as follows:-

"9. It may be mentioned that there is misconception about interest. Interest is not a penalty or punishment at all, but it is the normal accretion on capital. For example if A had to pay B a certain amount, say 10 years ago, but he offers that amount to him today, then he has pocketed the interest on the principal amount. Had A paid that amount to B 10 years ago, B would have invested that amount somewhere and earned interest thereon, but instead of that A has kept that amount with himself and earned interest on it for this period. Hence equity demands that A should not only pay back the principal amount but also the interest thereon to B."

It is also seen that when the opposite parties were not in a position to give the flat to the complainant, amount paid by the complainant should have been refunded to the complainant, but the same was not done. It is stated by the learned counsel for the opposite parties that on 2.2.1999 the opposite parties deposited Rs.1,75,800/- with the State Commission and the remaining amount was deposited in the year 2013, however, the learned counsel was not in a position to give the exact date. In the facts and circumstances of the case, I deem it appropriate to allow interest @7% p.a. on the amount of Rs.2,61,750/- to be refunded by the opposite parties from the date of respective deposit till actual payment. Accordingly, the order of the State Commission dated 23.07.2013 stands modified. The opposite parties are directed to comply with this order within a period of 45 days from the date of receipt/service of this order. Parties to bear their own costs for this revision petition.