State Consumer Disputes Redressal Commission
D. Maheedharan Nair, vs Kerala State Housing Board, on 17 September, 2012
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/11/257 (Arisen out of Order Dated 25/10/2010 in Case No. CC/91/13 of District Pathanamthitta) 1. Maheedharan Nair Raj Bhavan,Ellumkala,Koodal,Adoor Kerala ...........Appellant(s) Versus 1. KSHB Santhi Nagar,Trivandrum Trivandrum Kerala ...........Respondent(s) BEFORE: SRI.K.CHANDRADAS NADAR PRESIDING MEMBER PRESENT: ORDER
KERAL A STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACAUD THIRUVANANTHAPURAM
APPEAL NOS.120/11, 121/11, 122/11, 257/11 & 262/11
COMMON JUDGMENT DATED 17.9.12
PRESENT
SHRI.K.CHANDRADAS NADAR -- JUDICIAL MEMBER
APPEAL NO.120/11
1. The Secretary Kerala State Housing Board -- APPELLANTS Santhi Nagar. Thiruvananthapuram.
2. The Executive Engineer, Kerala State Housing Board, Thiruvalla.
(By Adv.Saji.S.L) Vs. K.Arunadevi, Sithara, Plot No.18, -- RESPONDENT Pathanamthitta Housing Project, Nannuvakkad. (By Adv.T.K.Ajithkumar) APPEAL NO.121/11 The Secretary Kerala State Housing board, -- APPELLANT Santhi Nagar, Thiruvananthapuram. (By Adv. S.Shanavas) Vs. T.M.Abraham Mupramannil Muruppel House, -- RESPONDENT Vallicode, Kottayam. APPEAL NO.122/11 The Secretary -- APPELLANT Kerala State Housing board, Santhi Nagar, Thiruvananthapuram. (By Adv. S.Shanavas) Vs. D. Maheedharan Nair, Raj Bhavan, Ellumkala, -- RESPONDENT Koodal Village, Adoor Taluk, Presently residing at Ambady, Koodal P.O, Near Koodal Post Office. (By Adv.G.S.Kalkura) APPEAL NO.257/11 D. Maheedharan Nair, Raj Bhavan, Ellumkala, -- APPELLANT Koodal Village, Adoor Taluk, Presently residing at Ambady, Koodal P.O, Near Koodal Post Office. (By Adv.G.S.Kalkura) Vs. Kerala State Housing Board, -- RESPONDENT Santhi Nagar, Thiruvananthapuram. (By Adv. S.Shanavas) APPEAL NO.262/11 T.M.Abraham, S/o late T.A.mathai, Mupramannil Muruppal House, -- APPELLANT Vallicode, Kottayam, Vallicode Village, Kozhencherry Taluk. (By Adv.G.S.Kalkura) Vs. Kerala State Housing board, Reptd. by Secretary -- RESPONDENT Santhi Nagar, Thiruvananthapuram. (By Adv. S.Shanavas) COMMON JUDGMENT SHRI.K.CHANDRADAS NADAR,JUDICIAL MEMBER
In these appeals the common order pronounced by the CDRF, Pathanamthitta in OP Nos. 13/91, 33/91 & 136/93 on 25/10/10 is challenged by the common opposite party namely the Kerala State Housing Board and the complainants in OP.Nos.13/91 and 136/93. The CDRF Pathanamthitta jointly tried the 3 OPs mentioned above and disposed of the same by a common order. The complainants were allottees of Plot Nos. 4,18 and 17 respectively in the Pathanamthitta Housing Scheme implemented by the common opposite party, the Kerala State Housing Board. Pursuant to the scheme the Board acquired landed property which was divided into plots and allotted to different applicants including the complainants for construction of residential buildings. The complainant in OP.13/91 was allotted Plot No.4 having an extent of 328.33 Sq.meters (8.5 cents) fixing a tentative value of Rs.64,000/-. Similarly the complainant in OP.33/91 was allotted Plot No.18 having an extent of 328 sq.meters fixing a tentative value of land + other charges of Rs.64,930/-. The complainant in OP.136/93 was allotted Plot No.17 having an extent of 365.83 sq.meters fixing a tentative value of land and amenities of Rs.71,650/-. It is alleged that the complainants have executed necessary documents and paid the tentative value of land + amenities fixed by the opposite party. The complaints were filed when the opposite party directed the complainants to pay additional amounts of Rs.70,394/-, Rs.75,461/- and Rs.71,650/- respectively. The complainants alleged that aggrieved by the illegal demand they submitted representation to various authorities but their grievances were not redressed so far. According to the complainants, the allotted land is situated at an un-important locality more than 2 kms. away from the Pathanamthitta town. There was an ancient serpent-grove with several idols and therefore the property was not suitable for residential purpose. Drinking water is not available in the locality. The opposite party did not provide sufficient amenities for the land owners.
2. It was further alleged that the complainants had no direct dealings with the owner of the property from whom the opposite party acquired the land. In the land acquisition reference made by the Revenue authorities, the complainants were not parties. The Housing Board alone was made one of the respondents. It is understood that the Housing Board is not taking due interest in properly resisting the enhancement claim and to protect the interest of its customers like the complainants. The complainants have real grievance in that undue enhancement in value of land was ordered by the Land Acquisition Court because of the failure of the opposite party in properly contesting the claim for enhancement. As such, the enhancement in land value ordered by the Land Acquisition Court is not binding on the complainants. The opposite party also failed to render important and essential services like laying cartable road from the main road to the allotted plots. Primary facilities like drinking water and electricity were also not made available. The complainants had to incur additional expenditure due to failure to provide water supply. The complaints were filed under the above circumstances.
3. The opposite party/Housing Board raised identical contentions. The contentions were that value of land in question was subsequently raised because land value was enhanced by the competent authority. The cost of development works was also increased considerably. The land for implementing various schemes framed by the Board is acquired by the Government at the request of the Board. The Housing Board has no direct control over the land acquisition proceedings initiated by the Government. The board is bound to give the enhanced compensation fixed by the Land Acquisition Court. It is specifically stated in the agreement that the land value would be given by the allottees. The opposite party is entitled to collect the enhanced land value and cost of developments from the complainants.
4. These cases filed in 1991 and 1993 had a chequered history. Initially before the CDRF, Pathanamthitta, the complainants in OPs 13/91 & 33/91 were examined and documents including the report of the Advocate commissioner were marked. The Forum disposed of the cases holding that the complainants were entitled to compensation of RS.50,000/- each from the Housing Board along with Rs.500/- towards costs. The order of the Forum was challenged before this Commission in A.Nos.508/97, 509/97 & 510/97. This Commission as per order dated 1.10.97 set aside the order of the District Forum and remanded the matter back with direction to dispose of the cases after giving both parties opportunity to adduce evidence. After remand, the complainants did not adduce any further evidence. But on the side of the opposite party, 2 witnesses were examined and Exts.D2 and D3 were marked. The District Forum after considering the entire evidence held that the opposite party was not entitled to realize additional value of the 3 Plots from 3 complainants in these cases. The complainants were allowed to realize compensation of Rs.10,000/- each and cost of Rs.1000/- each from the opposite party. Again, the opposite party preferred appeals before this Commission as Appeal Nos.473/01, 474/01 & 475/01. Those appeals were disposed of on 16.2.08 directing the opposite party to produce the details of fixation of the amount to be paid by the complainants and the complainants were permitted to contest the matter by cross examination. After remand, one more witness was examined on the side of the opposite party and Exts.R4 to R7 were marked on their side. On the side of the complainants, Exts.P4 to P16 and X1 series were marked. Copy of the calculation statement of the tentative costs submitted by the opposite party was marked as Ext.X2. After considering the entire evidence, the Forum directed the opposite party to recalculate the price of the plots allotted to the complainants on the basis of the formula formulated by the District Forum. The opposite party it is held, is entitled to realize the balance price if any, after deducting the amount already remitted by the complainants and in that event, the complainants were directed to remit the said amount. No compensation or cost was allowed. This time both the opposite party and the complainants were aggrieved. Hence Appeal Nos.120/11, 121/11 & 122/11 by the common opposite party in OP.Nos. 33/91, 136/93 & 13/91 respectively. A.No.257/11 is filed by the complainant in OP.13/91. Appeal No.262/11 is filed by the complainant in OP.136/93. The complainant in OP.33/91 has not preferred any appeal.
5. The following common points arise for decision in these appeals -
1. Was the CDRF, Pathanamthitta right in directing recalculation of the price of the plots allotted to the complainants/appellants on the basis of the formula formulated by it ?
2. Whether there was deficiency in service on the part of the Housing Board ? If so whether the Board is entitled to realize the enhanced land value and development costs from the complainants?
3. What are the reliefs if any to be granted?
6. POINT NO.1:-
The Kerala State Housing board implemented a scheme at Pathanamthitta whereby land was acquired and divided into plots and allotted to interested parties. The complainants in OP.Nos.13/91, 33/91 & 136/93 were allotted respectively, Plot No.S4 18 and 17 in the scheme after fixing tentative value of land and development charges. It appears from the evidence that subsequently as many plots were not sold auctions were conducted by the Housing Board in some cases after constructing building on the plots. In auction the plots were sold for a cheaper price. But as per the agreement with the complainants marked in evidence there was definite obligation on the part of the complainants to pay the additional land value and development charges to be fixed based on the result of the Land Acquisition cases. The District Forum apparently felt that the said clause worked out injustice to the complainants and hence formulated a peculiar formula to fix the basic price for 1 M.sq. and on that basis directed the opposite party to recalculate the final price of the plots allotted to the complainants. Realization of balance amount if any from the complainants was allowed accordingly. But both the complainants and the Housing Board are not supporting the formula of the District Forum. It is pertinent to notice that the complainants are governed by the agreement duly executed by them in favour of the opposite party. Different considerations apply to plots sold in auction. On that basis no discrimination or injustice could be found by any forum. So, the District Forum is not at all justified in formulating the way in which the land price is to be recalculated by the opposite party. The jurisdiction of a Consumer Disputes Redressal Forum does not extent to doing such things. Under the above circumstances, it is difficult to accept the formula prescribed by the CDRF, Pathanamthitta and the order of the forum as such is not sustainable.
7. POINT NO.2 & 3:-
However, the fact remains that the entire evidence in these cases is available before this Commission. Already the matter was remitted back to the Forum twice. Under the above circumstances, it is incumbent on this Commission to decide the grievance of the complainants on merits. As indicated earlier, there is an agreement between the complainants and the opposite party/Housing Board. In the light of the agreement grievances such as the land is situated in an unimportant locality cannot be sustained. Before entering into the agreement, the complainants should have satisfied themselves of the importance of the locality in which the land acquired was situated. Similar is the case with the grievance that there was an ancient serpent grove with several idols and therefore the property was not suitable for residential purpose. Grievances such as non availability of drinking water and lack of electricity should also have been in the knowledge of the complainants before entering into the agreement. So what is important is whether based on the agreement any deficiency in service was committed by the opposite party. The Housing Board is formed as part of the welfare activities of the Government. It is not discharging strictly sovereign functions such as enforcing law and order. The complainants availed the service of the Housing Board and it was incumbent on the Housing Board to provide effective service in implementing the scheme prepared by them. It is the definite allegation in the complaint that enhanced land value is claimed by the opposite party based on the award of the Land Acquisition Court which was not properly conducted by the opposite party. In the land acquisition Court proceedings, the complainants were not parties. The Housing Board alone had the chance to contest the claim on merits. It is pertinent to notice that on acquiring the plots, the land acquisition Tahzildar passes an award fixing the reasonable land value for the acquired land. It was based on the award of the land acquisition officer that tentative cost of land and development charges were fixed at 64,000/-, Rs.64,930/- and Rs.71,650/- respectively for the complainants. Complaints were filed when additional amounts of Rs.70394/- Rs.75461/- and Rs.71650/- respectively were demanded. But the final claim of the Board can be gathered from Exts.R5, R6 & R7. These are statement of final costs respectively relating to the complainants in OP.Nos.13/91, 136/91 & 33/91. As per these statements, the final land value as on 28.2.84 is fixed as Rs.203.98/ M.Sq. The additional land value as on 31.7.05 claimed is Rs.1782.99/M.Sq. Correspondingly additional land value for the plot of the complainant in OP.13/91 as on 31.7.05 shown is Rs.5,66,099/-. The total amount due from the allottee is shown as Rs.809,679/-. Similar is the case with the other complainants. So apparently land value was increased by the land acquisition court by more than 8 times from the land value fixed by the land acquisition officer. At the same time, the opposite party has not even produced the copy of the award passed by the Land Acquisition Court that is the Sub Court. So the pertinent question is whether the Housing Board properly contested the land acquisition reference case. Very often the Government pleaders are selected on political considerations and need not be the best Advocate of the concerned Bar. That apart when the burden is ultimately born by the allottees the officers of the Board would be lapse in contesting the case and may often collude with the land owners. This is the very allegation made by the complainants. At the same time the award of the Land Acquisition Officer would itself be after taking into account relevant considerations such as the importance of the locality price of similar property in the locality etc. Then there is little scope for eightfold increase in the value of land in the land acquisition reference case if it was properly contested, for the price to be fixed is as on the date of acquisition. Yet the final cost statement produced by the opposite party itself shows otherwise. Under the above circumstances, I find that the grievance of the complainants that the land acquisition reference case was not properly contested by the Housing Board is not unfounded. If that be so, there was deficiency in service on the part of the opposite party.
8. The learned counsel for the complainants/appellants relied on certain decisions to contend that development charges could not be levied for more than a period of 3 years. These decisions and another decision of the competition commission of India are not referred to in detail here and those decisions are of persuasive value and I am basing my decision on different consideration namely deficiency in service on the part of the opposite party. Under the circumstances, explained earlier in the absence of production of even the copy of the award passed by the land acquisition court it is not even known whether the opposite party contested the enhancement claim at all or they remained ex-parte. It is also not known whether attempt was made by the opposite party to produce sale deeds executed in the locality with respect to similar property around the period of acquisition to properly defend their case. Therefore, there was certainly deficiency in service on the part of the opposite party/appellants in FA.Nos.120/11, 121/11 & 122/11. As per Section 14 (1) (e) of the Consumer Protection Act, a Consumer Redressal Forum or this Commission has the power to remove the deficiency in service in question. In this case, demand of additional land value is based on the award of the land acquisition court which was not properly defended. Deficiency in service in this regard can be removed only by asking the opposite party not to claim any amount based on the award in the land acquisition reference case which was not properly defended by it. Since order is being passed to that effect, it is not necessary to award any separate compensation for deficiency in service. As to the development charges, the details are not known. Further the Board cannot go on claiming development charges indefinitely. Hence that claim also cannot be allowed. These points were found accordingly.
In the result, Appeal Nos.120/11, 121/11, 122/11, 257/11 & 262/11 are disposed of as below. The direction of the CDRF, Pathanamthitta to recalculate the price of the plots allotted to the complainants on the basis of the formula prescribed by the forum and the consequent direction are vacated. It is held that the Housing Board/appellant in A.Nos.120/11, 121/11 & 122/11 is not entitled to claim any additional land value or any development charge from the complainants in OP.Nos.13/91, 33/91 & 136/93. The parties are directed to bear their respective costs in the appeals.
K.CHANDRADAS NADAR -- JUDICIAL MEMBER [ SRI.K.CHANDRADAS NADAR] PRESIDING MEMBER