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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Prem Narain, Presiding Member
Yogesh Nandlal Heda —Petitioner
versus
M/s. Subal Construction
and Ors. —Respondents
Revision Petition No.3290 of 2013
(Against the Order dated 23/07/2013 in Appeal No. 971/2010 of the State Commission Maharashtra)
Decided on 23.10.2019
Counsel for the Parties:
For the Petitioner:Mr. Pravin Satale, Advocate
For the Respondent:Ms. Anita Marathe and Mr. Ashutosh Marathe, Advocate
IMPORTANT POINT
Against concurrent finding of fact, scope under revision is quite limited and National Commission cannot reassess facts.
Headnote:
Consumer Protection Act, 1986 – Section 2(1)(g) read with Section 2(1)(o) – Real estate – Booking of flats – District Forum dismissed complaint on the ground that complainant was not eligible to apply under the scheme, however District Forum directed opposite parties to refund amount of Rs.2,61,750/- deposited by complainant without any interest – Both fora below have given concurrent finding that complainant is not entitled to get a residential unit in the project as he does not fulfil necessary condition to be eligible for any allotment in the project – Complainant has not claimed that original affidavit was filed with opposite parties – Moreover, no receipt has been taken by complainant for filing of affidavit from opposite parties – Opposite parties have categorically denied receipt of such affidavit and complainant has not been able to show any proof that affidavit was filed with opposite parties – Complainant owns a two storey pukka house, some agricultural land and one shop and therefore, District Forum has not considered him to be a person eligible under EWS category – State Commission has also confirmed the same – Against concurrent finding of fact, scope under revision is quite limited and this Commission cannot reassess facts – When opposite parties were not in a position to give flat to complainant, amount paid by complainant should have been refunded to complainant, but same was not done – Amount remained deposited with opposite parties for quite sometime and complainant is entitled to some interest on deposited amount – 7.5% interest awarded on amount of refund. (Paras 11, 12, 13, 14 and 15)
Result: Revision Petition Partly allowed.
ORDER
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.
2. 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.
3. 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.
4. Hence the present revision petition.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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
