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PUNE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT

PUNE
(
(

BEFORE

Mr. V. P. Utpat
: PRESIDENT
Smt. Khsitija Kulkarni : MEMBER

)
)

-*-*-*-*-*-*-*-*--*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*Complaint No. : CC/2011/303


Date of filing

: 08/July/2011

Date of order

: 07/May/2016

(Duration: 04 Years
29 Days)

1.

2.

Mr. Ashok Kumar B

R/at Flat No. J-04/06,

Rajesh Vihar AWHO,

Jai awan Awas Yojna,

S. No. 16, 17, 18 (part),

Gondhale Nagar, Hadapsar,

PUNE 411 028

Mr. Mahesh Mathadhikari

R/at Flat No. J-06/05,

Rajesh Vihar AWHO,

Jai awan Awas Yojna,

S. No. 16, 17, 18 (part),

Gondhale Nagar, Hadapsar,

PUNE 411 028

09 months

2
3.

4.

5.

6.

(CC/2011/303)

Mr. A. S. Roy

R/at Flat No. J-07/04,

Rajesh Vihar AWHO,

Jai awan Awas Yojna,

S. No. 16, 17, 18 (part),

Gondhale Nagar, Hadapsar,

PUNE 411 028

Mr. Sable D. D.

R/at Flat No. J-01/03,

Rajesh Vihar AWHO,

Jai awan Awas Yojna,

S. No. 16, 17, 18 (part),

Gondhale Nagar, Hadapsar,

PUNE 411 028

Mr. Kabugude Gopal

R/at Flat No. J-05/03,

Rajesh Vihar AWHO,

Jai awan Awas Yojna,

S. No. 16, 17, 18 (part),

Gondhale Nagar, Hadapsar,

PUNE 411 028

Mr. Ramchandran Nair

R/at Flat No. J-11/05,

Rajesh Vihar AWHO,

Jai awan Awas Yojna,

S. No. 16, 17, 18 (part),

Gondhale Nagar, Hadapsar,

PUNE 411 028

3
7.

8.

9.

10.

(CC/2011/303)

Mr. G. Hiremath

R/at Flat No. J-08/12,

Rajesh Vihar AWHO,

Jai awan Awas Yojna,

S. No. 16, 17, 18 (part),

Gondhale Nagar, Hadapsar,

PUNE 411 028

Mr. R. S. Deshmukh

R/at Flat No. J-02/14,

Rajesh Vihar AWHO,

Jai awan Awas Yojna,

S. No. 16, 17, 18 (part),

Gondhale Nagar, Hadapsar,

PUNE 411 028

Mr. S. P. Ingavle

R/at Flat No. J-12/10,

Rajesh Vihar AWHO,

Jai awan Awas Yojna,

S. No. 16, 17, 18 (part),

Gondhale Nagar, Hadapsar,

PUNE 411 028

Mr. P. K. Kar

R/at Flat No. J-13/05,

Rajesh Vihar AWHO,

Jai awan Awas Yojna,

S. No. 16, 17, 18 (part),

Gondhale Nagar, Hadapsar,

PUNE 411 028

] COMPLAINANTS

(CC/2011/303)

: Versus :

1.

Army Welfare Housing Organization )


(AWHO)

Through, Managing Director

South Hutments, Kashmir House,

Rajaji Marg, NEW DELHI - 110001 ]

2.

Project Manager

Army Welfare Housing Organization )


(AWHO)

C/o HQ Southern Command

Sig. Regt, PUNE

] OPPONENTS

Complainant through Lrd. Adv. Vijay Chandaliya


Opponent No. 1 & 2 through Lrd. Adv. Sanjay Gaikwad
*-*-*-*-*-*-*-*--*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*--

Per : Mr. V. P. Utpat, President

Place

: PUNE

// J U D G M E N T //
(07/05/2016)

This complaint is filed by the consumer against service provider for

deficiency in service under section 12 of the Consumer Protection Act,

1986. The complaint is filed in English as well as written version is also

(CC/2011/303)

filed in English. Both parties are conversant with the English language;

hence it is convenient to pronounce the judgment in English for the

convenience of the parties.

1]

Complainant no. 1 to 10 are residing in the project known as Jai

Jawan Awas Yojna, Gondhale Nagar, Hadapsar, Pune 28.

complainants are Army personnel.

All the

The opponent no. 1 is the

organization dealing in the Army Welfare Housing. The opponent no. 1 is

represented by the Managing Director and the opponent no. 2 is

represented by the Project Manager, who is doing its business at Pune.

The office of the opponent no. 1 is at New Delhi.

The object of the

opponent no. 1 and 2 is to provide houses to the Army personnel; hence

it has launched scheme Jai Jawan Awas Yojna at survey no. 16, 17 and

18 (part), Gondhale Nagar, Hadapsar, Pune 28.

dwelling units in 13 blocks.

It consists of 195

The opponents owned 30 acres land in

Hadapsar, Pune and the Jai Jawan Awas Yojna is located at the eastern

(CC/2011/303)

portion of the said land in 3.13 acres. Lay out plan has been sanctioned

by Pune Municipal Corporation by commencement certificate dated

22/11/2007. The opponents have published advertisement as regards

registration of dwelling units.

The complainants have applied for the

unit by depositing amount, which is asked in the said advertisement.

Initially, the price of the dwelling unit was Rs. 6,00,000/-, subsequently

it was escalated up to 9.2 lacs.

At the time of completion the

complainants have paid an amount of Rs. 11,00,000/- for the flat

admeasuring 649 sq. ft. The Users Welfare Committee for Jai Jawan

Awas Yojna has been formed and the said committee had started

functioning as regards maintenance of the said dwelling units.

The

committee has also informed about the defects in the construction, but

the opponents did not pay any heed about the same.

As per the

advertisement in the news paper, it was agreed that the possession of the

units will e delivered in the month of Dec. 2008.

Thereafter it was

extended to Dec. 2009 and actual delivery of the possession was started

(CC/2011/303)

on 20/05/2010. The completion certificate was not obtained from Pune

Municipal

Corporation.

Drinking

water

from

Pune

Municipal

Corporation is not provided. The flats were directly handed over by the

contractors representatives without rectifying the defects. Even though

the project has been carried out on No Profit No Loss, basis the audit

report was not provided and 10 % interest was levied for delayed

payment. The opponents have collected an amount of Rs. 25,000/- from

each dwelling unit holders for parking of scooter i.e. illegal.

The

opponents have constructed wall between Jai Jawan Awas Yojna and

other part of the land so as to restrict the enjoyment of the common

amenities. Visitors parking area, garbage yard, society office, community

hall, childrens park etc. are not provided. The generator backup facility

is also not provided; internal finishing is of poor quality.

There are

defects such as seepage, cracks in the walls, blockage of sewage lines

and drainage. Approach road is also not provided. The complainants

have sent notice to the opponents to comply the deficiencies, but the

(CC/2011/303)

opponents did not take any cognizance. The complainants have prayed

for directing the opponents to confirm and declare the name of the

project as Rajesh Vihar AWHO and the name board to that effect be

fixed at the entrance gate of the project. The opponents be directed to

pay compensation of Rs. 10,14,703/-

for delayed possession.

The

opponents be directed to provide drinking water supply from Pune

Municipal Corporation and replace the substandard water purification

plant. The opponents be directed to refund an amount of Rs. 2,00,000/-,

which has been collected by way of escalation of the price.

The

opponents be directed to refund an amount of Rs. 2,50,000/-, which was

charged for the scooter parking. The opponents be directed to demolish

the concrete wall constructed separating Jai Jawan Awas Yojna with

rest of the plot and allow the complainants to use the common amenities,

the opponents be directed to provide visitors parking, garbage yard,

society office, community hall etc. The opponents be directed to provide

generator back-up, water tank reservoir of a sufficient capacity, to form

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co-operative

society,

to

provide

(CC/2011/303)
security

staff,

remove

hurdles,

encroachments, unhygienic material, hawkers, illegal shops etc. from the

approach road.

2]

The opponents have resisted the complaint by filing written

version.

It is flatly denied by the opponents that they have caused

deficiency in service as alleged.

According to the opponents Army

Welfare Housing Organization fix the cost of the house on No profit no

loss basis and it has not collected any charges for the services. Hence,

complainants can not proceed against the opponents under the

provisions of Consumer Protection Act, 1986. The deficiency in service

can be considered on the basis of agreement between the parties. This

complaint is bad for non joinder of necessary party. As per clause 89 of

the Master Brochure, all matter of disputes, differences relating to the

registration, booking, allotment and cancellation between the parties

shall be referred to Arbitrator. According to the opponents, there was no

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(CC/2011/303)

deliberate delay in handing over the possession of dwelling units and the

said delay was beyond their control. The opponents have provided all the

facilities and amenities, which are agreed in the brochure.

Sufficient

space is provided for scooter under stilt on the ground floor as shown in

the sanctioned plan. The Boundary wall separating the JJAY project

and Phase I and Phase II can not be removed, as the allottees from the

said project have not paid for any common facilities and amenities,

which are provided to Phase I and Phase II Tucker AWHO Enclave.

Sewage Treatment Plant, Water supply plant have been constructed as

per technical parameters and after obtaining permission from the Pune

Municipal Corporation.

Users Welfare Society is formed in the year

2010. The management has failed to take care of common facilities. The

opponents have informed on numerous occasions to form and register

Co-operative Society.

The opponents have already handed over the

dwelling units to the complainants. Hence, now it is the duty of Users

11

(CC/2011/303)

Welfare Society to maintain the project. The opponents have prayed for

the dismissal of the complaint.

3]

After considering the pleadings of both the parties, scrutinizing

the voluminous documents, which are produced by both the parties and

hearing arguments of both the parties, the following points arise for the

determination of the Forum. The points, findings and the reasons

thereon are as follows-

Sr.No.
1.

POINTS
Whether

complainants

FINDINGS
have In the affirmative

established that they are consumers


of the opponents?
2.

Whether

complainants

have In the affirmative

established

that

have

opponents

caused deficiency in service?


3.

What order?

Complaint
allowed.

is

partly

12
REASONS

4]

:-

(CC/2011/303)

As to point no. 1 to 3

It reveals from the pleadings as well as documentary evidence,

which is adduced on behalf of the parties that complainants are from the

Army Department and the opponents are organization dealing with the

welfare of the housing for Army personnel. They have called applications

from needy Army persons by publishing advertisement; they have called

amounts for the dwelling units from the needy personnel, who were

interested in purchasing dwelling units. It is the main contention of the

opponents

that

the

opponents

are

dealing

in

the

business

of

construction. It is welfare Organization and it has provided facilities to

the Army personnel for purchasing the dwelling unit. The said project

has been launched on No profit No loss basis. In such circumstances,

complainants can not be hold as consumer and the transaction between

the Complainants and the opponents is not the consumer transaction.

Learned Advocate for the complainants has strongly relied upon the

Ruling of Lucknow Development Authority V/S M. K. Gupta

13
reported in 1994 AIR 787.

(CC/2011/303)

It has been observed in the said Ruling

that, all the statutory authorities providing services are within the ambit

of Consumer Protection Act, 1986.

Whether they are working on No

profit No loss basis or otherwise, the said defense of the opponents have

struck down in the Ruling of Brig. K. G. Kuthiala V/S Army Welfare

Housing Organization reported in I (1998) CPJ 52 NC. In the light of

these two landmark judgments, it is the considered opinion of this

Forum that, even though the project was run by the opponents on No

profit No loss basis, they are providing services to the complainants, as

they are involved in the construction services.

5]

The second limb of the argument is that as per the contents of the

brochure, particularly clause no. 89, if any dispute arises between the

parties, that shall be referred to the Arbitrator and no Court or Tribunal

can take cognizance of the said dispute.

In view of section 3 of the

Consumer Protection Act, 1986, the parallel remedy is provided to the

14

(CC/2011/303)

consumer, besides all the remedies, which are available under any other

act. Honble Supreme Court has observed in various judgments that the

Consumer Forum has right to settle the dispute even though there is

Arbitration clause. In these circumstances, we hold that the Arbitration

clause does not become hurdle between the consumer and disposal of

this complaint by this consumer Forum.

6]

According to the complainants, the opponents have published

advertisement on 09/04/2006 and agreed to deliver the possession of

dwelling units in the month of Dec. 2008. The said date was extended to

Dec. 2009, but the actual delivery of the possession was started on

20/05/2010. The possession certificate, which are produced on behalf

of the complainants are sufficiently eloquent as regards the delay in

delivering the possession.

explanation for delay.

The opponents have not given proper

It is pertinent to note that the opponents have

levied interest @ 10% p.a. for delayed payments. In such circumstances,

15

(CC/2011/303)

the opponents are under obligation to pay compensation for causing

delay in delivery of possession.

7]

According to the complainants, the opponents are providing

60,000 to 80,000 liters water that is inadequate as per the Development

Control Rules. As per the said rules per person consumption of water is

135 liters per day. In such circumstances, 1,31,625 liters water per day

is required for 195 unit holders.

The water purification plant is not

properly working. It is also contended that initially the cost of the flat

has been shown as Rs. 6,00,000/-. Subsequently it was extended up to

Rs. 9,20,000/- and the said escalation is more than 10%.

The

opponents must have prepared estimate after considering escalation of

price of material and labour charges.

In such circumstances, the

opponents can not collect more consideration from the consumers. The

complainants have produced index II extract of two transactions in the

year 2007 of the flats in the scheme developed in the vicinity project of

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the opponents and

the consideration

(CC/2011/303)
amount

is less than

the

consideration, which is collected by the opponents. The audit report of

the project is not produced to show that the said project was run on No

profit No loss basis. According to the complainants the opponents have

collected an amount of Rs. 25,000/- from each unit holder for scooter

parking. It is the duty of the opponents to provide scooter parking to all

the unit holders and as per the ruling of Supreme Court in the matter of

Panchali Co-operative Housing Society V/S Nahalchand the builder

has no right to sell the parking space. It reveals from the sanctioned

plan that the scooter parking is provided to the unit holders. In such

circumstances compensation for scooter parking can not be allowed. The

complainants have asked for the demolition of the wall between Jai

Jawan Awas Yojna project and rest of the land.

According to the

opponents, the said wall has been constructed so that the unit holders in

Phase I and Phase II can not be disturbed by the unit holders of Jai

Jawan Awas Yojna project.

It is further contended by the opponents

17

(CC/2011/303)

that the complainants have not paid for the facilities such as club house,

community hall and other facilities, which are provided to other project;

hence the said wall can not be demolished.

After considering the

contents of the brochure, this Forum is of the opinion that, it is not

necessary to demolish the wall, as complainants have no right to enter

on the land, which is not a part and parcel of their contract and they

have not paid consideration for the facilities, which are provided for other

units.

8]

As per the provisions of the Maharashtra Ownership Flat Act, the

Organization is constructing the building is bounded by the provisions of

the said Act. As per provisions of the Maharashtra Ownership Flat Act,

the service provider i.e. builder and promoter should form society, obtain

completion certificate from the competent authority and execute the

conveyance deed in favour of the society. It appears from the pleadings

of the opponents that the complainants have formed Users Welfare

18

(CC/2011/303)

Society, but it does not reveal from the record that the said society is

registered under the Maharashtra Co-operative Societies Act. As per the

provisions of the Maharashtra Ownership Flat Act it is the boundant

duty of the builder to form society of the flat purchasers. Hence, the

promoter should take initiative for registration of the said society.

9]

The complainants have appointed Court Commissioner/Architect

who has visited the site and filed the report before the Forum. According

to the Commissioner there are many deficiencies in the said project as

regards sewage plant, painting of the building from inside and outside,

construction

quality,

plumbing

etc.

The

report

of

the

Court

Commissioner is supported by the photographs and it reveals from the

same that there are structural defects in the project, which is launched

by the opponents.

Hence, it is the opinion of the Forum that either

the opponents shall remove the defects, which are suggested by the

Court Commissioner or pay adequate compensation for the same. After

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(CC/2011/303)

considering report of the Court Commissioner, it is the considered

opinion of the Forum that the opponents shall pay compensation of

Rs.50,000/- to each unit holder for removing the defects in the project.

The opponents should also pay an amount of Rs. 25,000/- to each unit

holder by way of compensation for causing delay in delivering the units.

The opponents are also under obligation to execute conveyance deed of

the said project in the name of registered society. After considering the

scarcity of water in Pune city, no additional burden can be put on

opponents regarding supply of more water.

The opponents are also

under obligation to pay compensation to the complainants for mental

and physical harassment as well as cost of the proceeding. In the light of

the above discussion, we answer the points accordingly and pass the

following order.

** O R D E R **

1.

The complaint of the complainants is partly


allowed.

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2.

(CC/2011/303)

It is hereby declared that the opponents have


caused deficiency in service by not delivering
possession

of

the

dwelling

units

within

stipulate period, forming co-operative society


and executing conveyance deed and by not
removing defects in the project.

3.

The opponents are directed to pay to each


dwelling

unit

holder

an

amount

of

Rs.

50,000/- (Rs. Fifty Thousand only) towards


removing defects, an amount of Rs. 25,000/(Rs. Twenty Five Thousand only) towards
delay in delivering possession of dwelling
units and an amount of Rs. 10,000/- (Rs. Ten
Thousand only) towards compensation for
mental and physical sufferings and cost of the
proceeding within six weeks from the date of
receipt of copy of this order.

4.

The opponents are further directed to form


Co-operative Housing Society and execute
conveyance deed in favour of the said society

21

(CC/2011/303)

within three months from the date of receipt


of copy of this order.

5.

Copies of this order be furnished to the


parties free of cost.

6.

Parties are directed to collect the sets, which


were provided for Members within one month
from the date of order, otherwise those will be
destroyed.

Place Pune
Date- 07/05/2016
(Kshitija Kulkarni)
MEMBER
knk

(V. P. Utpat)
PRESIDENT

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