How to file Consumer complaint against delay possession of project
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,