How to file Con­sumer com­plaint against de­lay pos­ses­sion of pro­ject

Accommodation Times - - Front Page - By Anju D. Ag­gar­wal

One has booked a flat and the builder / hous­ing board has set the dead­line for giv­ing its pos­ses­sion. How­ever, as the date ap­proaches, one finds that the flat is nowhere near com­ple­tion. Worse still, the builder/hous­ing board may not have be­gun con­struct­ing yet. When one looks for ex­pla­na­tions, the builder / hous­ing board ei­ther replies eva­sively or sim­ply ig­nores ones calls. Now one wants a re­fund of the money but that, too is in vain. So what do you do ? Per­haps seek re­dres­sal un­der the Con­sumer Pro­tec­tion Act (CPA) 1986. Take a look at the land­mark judg­ment in the field of hous­ing con- struc­tion given by the Supreme Court of In­dia on Novem­ber 5, 1992, in the case Lucknow De­vel­op­ment Au­thor­ity v/s M.K. Gupta. This judge­ment holds good even to­day and is widely quoted in the con­sumer fo­rums. In this judge­ment, it has been held that ‘hous­ing con­struc­tion’ was cov­ered by the Con­sumer pro­tec­tion Act even be­fore its amend­ment in 1993 and that even bod­ies like the Ban­ga­lore or the Up De­vel­op­ment Au­thor­ity were to con­sider them­selves un­der the purview of the Con­sumer Pro­tec­tion Act. By this de­ci­sion, the Supreme Court again ex­am­ined the var­i­ous pro­vi­sions of the Con­sumer pro­tec­tion Act and its con­clu­sions. These have a far-reach­ing im­pact and are summed up be­low : 1. A gov­ern­ment or semi-gov­ern­ment body or a lo­cal au­thor­ity is as much amenable to the Act as any other pri­vate body ren­der­ing sim­i­lar ser­vice. 2. The ju­ris­dic­tion of the for a can­not be lim­ited on the ground that although it was ser­vice, it was re­lated to im­mov­able prop­erty. 3. Hous­ing con­struc­tion or build­ing ac­tiv­ity by a pri­vate or a statu­tory body is ‘ser­vice’ within the mean­ing of the Con­sumer Pro­tec­tion Act. 4. If a public func­tionary acts ma­li­ciously and this ex­er­cise of the power re­sults in ha­rass­ment and agony then it is not an ex­er­cise of the power re­sults in ha­rass­ment and agony then it is not an ex­er­cise of power but its abuse. 5. The for a can di­rect the depart­ment to pay com­pen­sa­tion to the com­plainant im­me­di­ately with fur­ther di­rec­tions to re­cover the amount from those re­spon­si­ble for such be­hav­iour. The Con­sumer Pro­tec­tion Act, 1986, came into force from July 1987. Im­me­di­ately there­after, cases against builders were filed in the con­sumer fo­rums set-up un­der this Act all over the coun­try. The con­sumer fo­rums are mod­eled on the ‘small claims court’ which one finds in UK, Hong Kong and Aus­tralia. It in­cor­po­rates safe­guards for con­sumers against un­fair trade prac­tices. Com­plaints against builders could al­ways be en­ter­tained in the con­sumer fo­rums. The au­thor­i­ta­tive de­ci­sion given by the Supreme Court of In­dia has al­ready been ex­plained above. To make the pic­ture clearer, the Gov­ern­ment of In­dia amended the Con­sumer Pro­tec­tion Act in 1993. One of the amended is that the words ‘hous­ing con­struc­tion’ have been in­serted in clause 2(1) (o) of the Con­sumer Pro­tec­tion Act which de­fines ‘ ser­vice’. Hence com­plaints against builders with re­gard to hous­ing con­struc­tion can be filed in the con­sumer fo­rums. Con­sumer can get re­dres­sal via a three-tier re­dres­sal ma­chin­ery. If the com­pen­sa­tion claimed by a con­sumer is be­low Rs. 20 lakhs, then the com­plaint has to be filed in the dis­trict fo­rum. If the com­pen­sa­tion claimed is be­tween Rs. 20 lakhs and Rs. One crore, then the mat­ter is filed in the Sate Com­mis­sion and when the com­pen­sa­tion claimed is over Rs. One crore, then the case has to be filed in the Na­tional Com­mis­sion at New Delhi. Pro­vi­sion for ap­peal is also pro­vided un­der the Con­sumer pro­tec­tion Act. Who is com­plainant ? Who can file a com­plaint un­der the CPA? The law is very clear on this point. Un­der sec­tion 2(1)(b) of the CPA, a ‘com­plainant’ is : (i) a con­sumer; or (ii) any vol­un­tary con­sumer as­so­ci­a­tion reg­is­tered un­der the Com­pa­nies Act, 1956 (1 of 1956) or un­der any other law for the time be­ing in force; or (iii) The Cen­tral Gov­ern­ment or any State Gov­ern­ment, (iv) One or more con­sumers where there are nu­mer­ous con­sumer hav­ing the same in­ter­est (v) In case of death of a con­sumer, his le­gal heir or rep­re­sen­ta­tive who and which make the com­plaint.

Group com­plaints :

If there are prob­lems with a com­mon builder then, by way of an amend­ment to the CPA in 1993, a num­ber of you who have pur­chased houses or flats can get to­gether to file a con­sol­i­dated com­plaint against the com­mon builder. This is in view of the fact that the words ‘one or more con­sumers, where there are nu­mer­ous con­sumers hav­ing the same in­ter­est’ have been in­serted in the def­i­ni­tion of com­plainant in sec­tion 2(1) (b) as sub-clause (iv) thereof by the amend­ment.

Cau­tion : How­ever, a word of cau­tion for the reader. If your are ask­ing a builder to re­fund the money you have paid for a flat on ac­count of your per­sonal need for the money, then you may not win the case in the con­sumer fo­rum. In one case, a per­son did not pay the in­stall­ments as she should have af­ter she booked a flat with a builder. In­stead she com­plained to the Delhi State Com­mis­sion for the re­fund of the money she had al­ready de­posited with the builder. It ap­pears that she had ear­lier writ­ten to the builder that she needed the money for do­mes­tic rea­sons. It was not her case that she was ask­ing for a re­fund be­cause the flat was not be­ing com­pleted. In these cir­cum­stances, the Delhi State Com­mis­sion held that the client could not be al­lowed to wrig­gle out of the con­tract with the builder. Here is another tip for the read­ers. While fil­ing your com­plaint in the con­sumer fo­rum take care to en­sure that you file the case within two years from the date on which the cause of ac­tion has arisen. What is a com­plaint ? As de­tailed in Sec­tion 2(1)(c) of the CPA (a) “Com­plaint” means any al­le­ga­tion in writ­ing made by a com­plainant that – 5[(i) an un­fair trade prac­tice or a re­stric­tive trade prac­tice has been adopted by 6[any trader or ser­vice provider];] (ii) 7[the goods bought by him or agreed to be bought by him] suf­fer from one or more de­fects; ( iii) 8[ the ser­vices hired or availed of or agreed to be hired or availed of by him] suf­fer from de­fi­ciency in any re­spect; 9[(iv) a trader or the ser­vice provider, as the case may be,

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