Shivalik Cooperative House Building (First) Society Ltd vs SUSHIL KUMAR

THIS revision petition has been filed by the petitioner against the order dated 12.03.2008 passed by the State Consumer Disputes Redressal Commission, UT Chandigarh (in short, ''the State Commission '') in Appeal No. 496/07 - Susheel Kumar Vs. The Shivalik Co -op. House Bldg. First Society Ltd. by which, while dismissing appeal, order of District Forum allowing complaint was modified in appeal filed by the complainant.

BRIEF facts of the case are that complainant/respondent is member of OP/petitioner. He applied for allotment of land through Society for construction of category A dwelling unit under the scheme Chandigarh Allotment of Land to Cooperative Housing Building Societies Scheme, 1991. Chandigarh Housing Board allotted land to the OP under the aforesaid scheme in Sector 49 -A on terms and conditions mentioned in the letter and complainant is one of the beneficiaries of said allotment. Complainant made regular payments in connection with the cost of land as well as cost of construction and rather he made excessive payments, but even then OP made a reference to the Assistant Registrar for recovery of Rs.1,47,500/ -. Arbitrator vide its award dated 26.12.2002, rejected claim of Society and direction was issued to the Society for handing over possession of the flat so allotted to the complainant within 15 days. Office bearers of the OP filed appeal before Joint Registrar, which was dismissed vide order dated 18.5.2004; even then, possession of flat was not handed over to the complainant; though, he had paid the entire cost of the land upto 23.11.1997. Possession of flat had already been given to other allottees in 2001 -02, but complainant was not given possession and he was deprived of rent @ Rs.7,500/ - per month from August, 2001 and he claimed Rs.2,00,000/ - as compensation, Rs.,3,97,500/ - as loss of rent and Rs.11,000/ - as cost of proceedings. OP resisted complaint and submitted that OP was neither a trader nor service provider and denied deficiency of service and prayed for dismissal of complaint. Learned District Forum after hearing both the parties, allowed complaint partly and directed OP to pay Rs.50,000/ - as compensation for mental agony and Rs.2,500/ - as cost of litigation. Both parties filed appeal before State Commission and learned State Commission vide impugned order dismissed appeal No. 496/07 filed by OP with cost of Rs.10,000/ - and accepted Appeal No. 528 of 2007 filed by the complainant and set aside order of District Forum and directed OP to pay rent @ Rs.7500/ - per month from March, 2002 till handing over of possession and further awarded Rs.20,000/ - for mental agony against which, this revision petition has been filed. Heard learned Counsel for the parties and perused record.

LEANED Counsel for the petitioner submitted that complainant was not permitted to rent out the flat for 15 years and in such circumstances, no loss of rent occasioned and further submitted that complainant was defaulter in making payments of lease money for 10 years; even then, learned State Commission committed error in allowing appeal and granting rent; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by leaned State Commission is in accordance with law; hence, revision petition be dismissed.

IT is admitted case of the parties that complainant is member of OP and OP was allotted land by Chandigarh Housing Board in the Scheme of 1991 and complainant was one of the beneficiaries of the said allotment. Complainant deposited cost of land and construction, but OP raised demand of Rs.1,47,500/ -, which was set aside be Arbitrator and order of Arbitrator was also upheld in Appeal by Joint Registrar Cooperatives Societies. It is also not disputed that no particular flat was allotted to the complainant and possession was not given to the complainant till filing of the complaint in July, 2004. Learned Counsel for the petitioner submitted that as per allotment letter dated 15.12.1994 issued by Chandigarh Housing Board, Chandigarh in favour of the petitioner, the Society and its members were prohibited from parting with possession of the land/dwelling unit for a period of 15 years from the date of completion of dwelling unit. Thus, it becomes clear that for a period of 15 years from completion of building, complainant was not permitted to give the flat on rent to any other person. Complainant has nowhere pleaded in the complaint that from March, 2002 till filing of complaint, he was occupying leased premises and was paying rent @ Rs.7500/ - per month to the landlord. In such circumstances, complainant is not entitled for rent @ Rs.7,500/ - per month from March, 2002 till receiving possession of the flat.

IN the complaint, complainant claimed rent @ Rs.7,500/ -= per month from August 2001 till filing of the complaint apparently on 3.7.2004 and claimed Rs.3,97,500/ -, but apparently, this calculation is not correct and this amount should have been for 35 months @ Rs.7500/ - which comes to Rs.2,62,500/ -.

COMPLAINANT has not adduced any evidence before District Forum regarding rate of rent per month and District Forum rightly declined to grant rent @ Rs.7,500/ - per month. Learned State Commission in paragraph 17 of impugned judgment observed that in the year 2006, rent of the flat of A Category in the nearby societies was ranging from Rs.8,000/ - to Rs.9,000/ - per month and earlier in the year 2002, it was Rs.4,500/ - to Rs.5,000/ - as per affidavit of Brij Sharma filed before the State Commission. As per this affidavit, though, rent was between Rs.4,500/ - to Rs.5,000/ - in the year 2002; even then, learned State Commission allowed rent @ Rs.7,500/ - per month from March, 2002 which is contrary to affidavit evidence submitted by Brij Sharma, Proprietor of M/s. Kuber Estate and in such Circumstances, order passed by learned State Commission for grant of rent @ Rs.7,500/ - per month from March, 2002 is liable to set aside. Perusal of record clearly reveals that complainant was not given possession of particular flat inspite of award of Arbitrator dated 26.11.2002, whereas other allottees had already been given possession of flats in the year 2001 -02 as per averment in the complaint. Thus, it becomes clear that un -necessary delay in delivery of possession to the respondent by petitioner has been made without any justification and in such circumstances, petitioner is entitled to compensation for mental agony and physical mental harassment. Complainant has claimed Rs.2,00,000/ - as compensation in this count and I deem it proper to allow compensation of Rs.2,00,000/ - for mental agony, physical and mental harassment for unreasonable delay in handing over possession of the flat to the complainant and impugned order is liable to be modified.

CONSEQUENTLY , revision petition filed by the petitioner is partly allowed and impugned order dated 12.3.2008 passed by learned State Commission in Appeal No. 496/07 - Susheel Kumar Vs. The Shivalik Co -op. House Bldg. First Society Ltd. is set aside and order is modified and petitioner is directed to pay Rs.2,00,000/ - to respondent as compensation for mental agony and physical and mental harassment within 2 months. If the amount is not paid within 2 months, it would carry interest @ 9% p.a. till realisation, from the date of judgment.