State Consumer Disputes Redressal Commission
Sudhakar Jogimohanty, Hig No.121, ... vs 1. State Of Orissa Represented By The ... on 31 December, 1998
STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA:CUTTACK STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA: CUTTACK CONSUMER DISPUTE CASE NOS.218 TO 224 OF 1993 IN C.D. CASE NO.218 OF 1993 Sudhakar Jogimohanty, HIG No.121, Kanan Vihar, Chandrasekharpur, Bhubaneswar, PIN 751 016 ...... Complainant IN C.D. CASE NO.219 OF 1993 Harun Rasid Khan, C/O D.Rahman Plot No.2289, Near Apex Marketing Society, Cuttack Road, Bhubaneswar PIN 751 006 ...... Complainant IN C.D. CASE NO.220 OF 1993 Bijay Kumar Mishra, Accounts Officer, Public Debt Office, Reserve Bank of India, Bhubaneswar 751 001 ...... Complainant IN C.D. CASE NO.221 OF 1993 Amarendra Sahoo, RBI Officers Quarters, Tordeo Road, Mumbai 400 034 ...... Complainant IN C.D. CASE NO.222 OF 1993 V. Appa Rao, B-19, JALADA, RBI Officers Quarters, Prabhadevi, Mumbai 400 025 ...... Complainant IN C.D. CASE NO.223 OF 1993 Priyadarshy Dash, C/O B.B. Das, 72A-Forest Park, Bhubaneswar -751 009 ....... Complainant IN C.D. CASE NO.224 OF 1993 1. Prasanna Kumar Patel, Qrs. No.A/37, Sector 14, Rourkela -9, Dist. Sundargarh 2. Saubhagini Patel, w/o Prasanna Kumar Patel, Qrs. No.A/37, Sector-14, Rourkela-9, Dist. Sundargarh ...... Complainants Versus IN ALL 1. State of Orissa represented by the Secretary to Govt., Housing And Urban Development Department, Orissa Secretariat, Bhubaneswar -751 001 2. Orissa State Housing Board, represented by its Secretary, A-52, Kharvelanagar, Unit-III, Bhubaneswar-751 001 ...... Opposite Parties For Complainants - M/s B.K.Sahoo, S. Mallik & A. Das For Opp. Parties - Mr. S.K.Nayak-1 P R E S E N T : THE HONBLE SHRI JUSTICE A.K. SAMANTARAY, PRESIDENT AND SHRI SUBASH MAHTAB, MEMBER O R D E R
DATE:- The 31 September, 2009.
Justice A.K. Samantaray, President.
The The complainants, namely, Sudhakar Jogimohanty (in C.D. Case No.218 of 1993), Harun Rashid Khan (in C.C. Case No.219 of 1193), Bijay Kumar Mishra (in C.D. Case No.220 of 1993, Amarendra Sahoo (in C.D. Case No.221 of 1993), V. Appa Rao (in C.D. Case No.222 of 1993), Priyadarshy Dash (in C.D. Case No.223 of 1993), and Prasanna Kumar Patel and Saubhagini Patel (in C.D. Case No.224 of 1993) have filed; the complaint cases on identical questions of fact making similar grievances pertaining to allotment of houses constructed by opposite party no.2- the Orissa State Housing Board and the reliefs claimed by them as against the opposite parties are the same and similar. All these cases were taken up together for hearing and one set of evidence was recorded in respect of all these cases on the request of the complainants, to which the opposite parties had no objection. In the afore-mentioned circumstance, all the aforesaid cases are disposed of by this common judgment. The correspondences passed between the complainants and the Housing Board are almost same and we shall deal with these cases with special reference to the correspondences filed as annexures to C.D. Case No.218 of 1993 and its counter.
2. All these cases were disposed of by a common judgment passed on 03.12.1998, against which First Appeals bearing number 117 to 123 of 1999 were preferred by the Orissa State Housing Board before the Honble National Commission. The Honble National Commission, while setting aside the judgment and order passed by this Commission, passed the following order:-
.... the President of the State Commission is requested to appoint Head of Department of Civil Engineering in Orissa Engineering College at Bhubaneswar to inspect these houses after informing both the parties and to give report along with estimated cost of repairs/amount which was required to be spent in removing the defects, if any. After receipt of the reporting all these matters, the State Commission, after giving opportunity to both the parties of being heard, may pass appropriate orders afresh in accordance with law...
3. As per the direction of the Honble National Commission, Shri Jnan Prakash Basa, Professor and Head (Civil), Orissa Engineering College, Nijigarh Kurki, P.O. Harirajpur, Dist. Khurda was requested to inspect the houses of the complainants in presence of the house owners or their agents and the opposite parties and point out the defects in order to know about the repairs to be made along with the cost of repair in respect of each of the buildings. Professor Basa submitted his report, which was received by this Commission on 23.03.2009. After receipt of the report in this Commission, the cases were taken up afresh and both the parties after appearance were afforded opportunity to adduce further evidence, if they so liked, but no further evidence was adduced by the parties.
4. In his report, Professor Basa, who was appointed the Commission for the above purpose, has stated that he had absolutely no scope to visualize any repairs to be taken up during the inspection and to prepare an estimate to meet the expenses towards rectification of defects as desired by this Commission. It is also stated in the last paragraph of the report that in view of the facts and circumstances, it is not possible to prepare an estimate at this stage when buildings have been totally renovated/remodeled and defects/repair, if any, are not visible.
5. The complainants above-named filed the complaints in the year 1993 against the Orissa State Housing Board alleging that the said Housing Board-opposite party no.2 by an advertisement dated 28.07.1988 published in the daily Samaj called for applicat9ions from intending purchasers in the prescribed form for HIG houses proposed to be built at Chandrasekharpur on Nandan Kanan Road and at Jagamara near Khandagiri under Self-Financing Scheme and HUDCO Financing Scheme at a provisional cost of Rs./2.5 lakhs having plinth area of 1,200 sqfts. The expected date of completion of the houses was given as 31.12.1989. The applicants were required to pay as advance deposit along with application in the form of bank draft in favour of Orissa State Housing Board Fund. Preference was given to the applicants who would be depositing the entire cost of the house at one time or varying from 50% to 100% of the cost of the house. The last date of receipt of applications was 31.08.1988. Accordingly, the complainants applied for the said houses. Subsequently, on 11.08.1989, opposite party no.2 intimated the complainants that the plinth area of the houses proposed to be built had been increased from 1,200 sqfts. to 1,400 sqfts. without changing the minimum cost of Rs.2.5 lakhs. The grievance of the complainants is that while the complainants paid up all the instalments in time as required by the Housing Board, the Housing Board did not fulfill their promise as to the completion of the houses and delivery of possession. On 18.12.1990, the complainants received a letter from the Housing Board wherein reasons for the delay in handing over possession of the houses were assigned. The letter also stated that the houses in question were nearing completion and the likely date of completion was indicated to be 31.03.1991. Thereafter, the Housing Board wrote many letters to the complainants for postponing the date of delivery of possession, the last such letter being dated 29.04.1992, wherein it was stated that the houses would be handed over by the end of May, 1992. The grievance of the complainants is that even after the said letter, delivery of possession was actually made during 1993. The further grievance of the complainants is that the lack of arrangement for water supply, which could be clearly stated to be an instance of deficiency in service by the Housing Board. With the aforesaid grievances, the complainants filed the complaints and they prayed for (1) refund of excess amount already paid by the complainants over and above the maximum permissible cost of Rs.2.75 lakhs; (2) awarding compensation towards cost of repair/replacement of the defects and deficiency found in the construction of the houses; (3) payment of interest at the rate of 15% per annum on the amounts deposited with opposite party no.2 for the delay in delivery of possession; and (4) being compensated for the lack of infrastructure and cost of litigation.
6. The complainants have also made grievance about the fact that the Housing Board in their letter dated 30.04.1990 intimated that the provisional cost of the house had been increased from Rs.2.5 lakhs to Rs.3 lakhs due to escalation of price. The instalments payable by the complainants were accordingly revised. In response to the communication from the Housing Board, when the complainants made specific request to know the reason for escalation and asked for a copy of the original estimate, the Board wrote to one of the purchasers, namely, Ramesh Chandra Vantaram, that it was not possible to furnish the estimate, either in original or revised. He was also asked by the Housing Board to take back his deposited money if he was aggrieved by the escalation of cost. This has been stated to be an open threat of cancellation of allotment, for which the complainants did not pursue their query any further. The complainants have stated that this conduct of opposite party no.2 was a glaring example of highhandedness and arbitrariness. Opposite party no.2 being a mere builder was behaving like a despotic sovereign power. The Housing Board vide their letter dated 23.06.1992 intimated to one of the complainants, namely, Sudhakar Jogimohanty, that construction of the house was complete and the final cost of the house was Rs.3,46,466/-. This complainant was asked to deposit the balance cost of Rs.46,466/- before taking delivery of possession of the house. After this, again the Housing Board-opposite party no.2 wrote to the complainant further revising the final cost by enhancing it to Rs.3,60,458/- vide their letter dated 08.02.1993. This price was also made applicable to the case of Sudhakar Jogimohanty who was by then already in possession of the house after having signed the agreement.
7. The further grievance of the complainants is about the defects and deficiencies in construction of the houses due to the use of sub-standard materials and bad workmanship. The Housing Board had instructed the complainants to undertake joint inspection of the houses with its representative and to intimate the defects, if any, by 07.11.1991. Accordingly, joint inspection was made on 28.10.1991 and the list of defects was intimated to opposite party no.2. It is stated in the complaints that even after intimation of the defects, no worthwhile steps were taken by opposite party no.2 to remove or rectify the defects. The complainants, finding no other way out, engaged a registered valuer to prepare the estimate for repair/removal/redoing. Even after taking over possession. The complainants submitted additional list of visual defects to opposite party no.2 stating therein that they have taken over possession of the houses without prejudice to their claim and seek rectification by assessing the defects separately. It is alleged in the complaints that opposite party no.2 did not reply to the said letter. Being aggrieved by this attitude of opposite party no.2, the complainants got the houses inspected by expert.
8. The opposite parties filed written version in C.D. Case No.218 of 1993 and filed an additional memorandum stating that the counter filed in C.D. Case No.218 of 1993 be accepted as counter in all other cases analogous to the same. The opposite parties have initially questioned the maintainability of the cases before the Consumer Forum/ Commission. As regards the factual aspects, they have explained that due to escalation, the price relating to construction of the houses was revised to Rs.3 lakhs and accordingly the instalments were rephrased fixing the payment of the last instalment by the end of December, 1990. It has been clarified by the opposite parties that they had intimated the complainants that it was indicated to them by letter dated 30.04.1990 that in case of default in payment, interest at the rate of 15% would be charged on the defaulted amount. According to them, the delay in construction work of the houses was due to various reasons beyond their control and the reasons had already been indicated in their letter dated 18.12.1990. They have stated in their written version that the final cost of the house was estimated and fixed at Rs.3,46,466/- as against the provisional cost of Rs.3 lakhs and the same was communicated to the complainants on 23.06.1992. It was further stated that the increase in the cost and revision of price by escalation was due to certain unavoidable circumstances. They have stated that the reason for such delay and increase in the cost was intimated to the complainants in their letter dated 23.06.1992. They have further clarified that one of the reasons, which was beyond their control, was that the neighbouring tenants filed suits in the court of law. One Panchu Rout filed T.S. Nos. 176 of 1989 and 52 of 1990 and one Bahuda Sahu filed T.S.No. 4 of 1989 in the court of Munsif, Bhubaneswar and injunction orders were passed against the Board, which was still in force due to pendency of the suits. The other cause shown was due to continuous heavy rain during the year 1990-91, which resulted in non-availability of adequate building materials at appropriate time. Scarcity of cement and water amongst others was another factor for the cause of delay in construction of the buildings. In addition, there was also delay in installation of 33 KV sub-station by the Orissa State Electricity Board, which caused a setback to all these schemes in that area leading to the delay and handing over possession of the houses, though construction of the houses, including the houses of the complainants, was complete much earlier. In the written version, it was further stated that due to gulf crisis and high inflation, the cost of building materials increased enormously, which increased the cost of labour and the minimum wage was raised to Rs.25/- from Rs.12.50 with effect from 01.07.1990. It has also been indicated that the cost of materials for the buildings increased and resulted in escalation of cost of the building. The other cause for delay in construction was due to objection to drainage and sewerage system raised by the nearby villagers, who specifically objected to the soak pits and septic tanks to be built on the ground of pollution. Looking to the objection of the people of the locality, the Board decided to purchase one acre of private land from the nearby villagers to construct the septic tanks and soak pits. Thus, the Board was constrained to make an expenditure of Rs.8 lakhs. Furthermore, the length of the sewerage line originally conceived had to be considerably increased in order to connect the septic tank resulting escalation of cost for laying of additional pipe line, fittings and fixtures. The Housing Board had to undertake the responsibility of maintaining water supply in their schemes and the State P.H.D. withdrew from maintaining the same. The provision of street lighting, which was to be maintained by the municipal authorities, was denied subsequently and the Housing Board had to undertake the lighting arrangements in the colony. The extra cost that had to be borne by the opposite party-Board on account of the afore-mentioned reasons has been given in detail in the written version, and the same constrained the Board to increase the final cost of the house from Rs.3,46,466/- to Rs.3,60,000/-. Justifying the escalation of cost of the house, it is stated that from time to time this fact has been intimated to the complainants-allottees of the houses. It has been commented that after taking over possession of the houses with complete construction and in good condition in all respects, the complainants have filed these cases with a view to make illegal gain. Construction of hundreds of houses under a big scheme is ordinarily to take two years or more time than the stipulated time frame due to obvious reasons and problems faced during the period of construction. As such, explaining the delay and the escalation of price of the houses, the opposite parties have stated that there is no deficiency in service on their part either in the matter of construction of cause of delay. They have specifically challenged the inspection report of the registered valuer Shri S.S. Panda on the ground that the report was procured without notice to the Housing Board an for that only, it should be rejected in limine as the materials on record show that the report is totally a false one. As regards the vigilance squad report and the report of the Public Undertaking Committee, it has been stated that they are general in nature and they do not speak of any specific house. Moreover, the inspection of the two committees of all the houses under the scheme was done much earlier to the complete construction. Finally it is stated by the opposite parties that at the time of taking over possession of the houses, the complainants did not make any complaint. For that only, they are estopped from making any complaint after taking over possession of the houses.
9. On the afore-mentioned pleadings of the parties, the following points arise for consideration:-
1. Whether there has been inordinate delay in the delivery of the houses to the complainants and whether this inordinate delay amounts to deficiency in service?
2. Whether the price escalation by the opposite parties is justified?
3. Whether there are defects in the construction of the houses and if for delivery of such defective houses the complainants are entitled to get the cost of removal of such defects from the opposite parties?
10. ISSUE NO.1 We have found from the pleadings of the opposite parties in their written version that construction of the houses under the scheme was delayed due to various reasons beyond their control. They have cited the instance of pendency of some civil suits in the court of Munsif, Bhubaneswar and injunction orders passed by the said court restraining them from proceeding with the construction work. Pendency of the civil suits, it is stated, caused unavoidable delay in the implementation of the scheme. It was argued on behalf of the complainants that the land involved in those civil suits relates to HIG House Nos.181 and 186 in respect of the suit filed by Panchu Rout and H.I.G. House Nos.70 to 100 under HUDCO scheme are covered by the suit filed by Bahuda Sahu. It was urged by Mr. Mishra, learned counsel for the opposite parties that not only the civil suits filed by the respective plaintiffs against the opposite parties delayed the matter but also continuous rain during the year 1990-91 resulted in non-availability of adequate building materials like bricks, sand, etc. It is further submitted that scarcity of cement and water amongst others was the main factor which contributed to the delay in construction work. Apart from that, the fact that the neighbouring villagers did not allow construction of soak pits and sewerage created problem in the early completion of the buildings in all respects, for which the Housing Board had to purchase one acre of land for the said purpose. It was also submitted by Mr. Mishra that there was delay in installation of 33 K.V. sub-station by the Orissa State Electricity Board, which caused a setback to the schemes in that area, which also contributed to the delayed delivery of possession. Added to that, lighting system, which was promised by the Bhubaneswar Municipality, was not taken up and the Municipality withdrew from the promise, which also added to the problem of the Housing Board in handing over possession of the houses complete in all respects with all infrastructural facilities. In this connection, Mr. Mishra relied on the decision of the Honble National Commission in P. Gopala Subramaniam v. Vice Chairman, A.P.H.B., Hyderabad, II(1995) CPJ 162(NC), wherein the Honble National Commission, with regard to the alleged deficiency in not delivering possession in time and delivering it after a delay of one year and a half held as under:-
The responsibility for the delay caused by the Electricity and Water Supply Authorities cannot justifiably be placed on the Housing Board, as these authorities were independent of the Board. There could be a deficiency in service and consequently a claim for compensation, etc. only if it could be proved convincingly that the respondent was careless and not vigilant enough in taking the required steps for ensuring the availability of these facilities in the flats.
In that case, there was delay in water supply and electricity by the P.H.D. authorities and the Andhra Pradesh State Electricity Board. Here, in the instant case, added to that, there have been other circumstances, which we have narrated in our preceding paragraphs, which added to the further delay. The delay being beyond the control of the Housing Board, which has not been shown to have become negligent in tackling with the situation, it cannot be held responsible for committing any deficiency. Rather, the Board has gone for acquiring further one acre of land by spending a huge sum of Rs.8 lakhs for laying sewerage line, installing soak pits, etc. Mr. Mishra, learned counsel for the opposite parties also submitted that after taking possession of the house making payment of cost, the complainants cannot be heard to say that there was delay in construction of the houses. In support of his contention, he placed reliance on Sarthak Behura and another v. The Orissa State Housing Board and another, III(1993) CPJ 384(NC).
11. We have heard Mr. S.J.Mohanty, who could not satisfy us on the point of deficiency on the part of the Housing Board. Rather, we would like to add here that it was not only the houses involved in these complaints, but also huge number of houses of different categories were taken up for construction under the scheme by the Housing Board. Any sort of litigation stalling the progress of construction results delay in the construction of good number of houses. The other reasons put forth by the opposite parties and their counsel during argument are sufficient enough to hold that the circumstances resulting in the delay were certainly beyond the control of the Housing Board, and for that we are absolutely not inclined to hold the opposite parties deficient in any manner on that score.
12. ISSUE NO.2 When we have found that there was delay in the progress of the scheme and completion of the houses for giving possession thereof to the allottees with all infrastructural facilities, the cost of building materials and labour cost are naturally to rise up, which is the main ground for escalation of price of the houses from Rs.2.5 lakhs to Rs.3.60 lakhs. In this connection, it was submitted by Mr. Mishra, learned counsel for the Housing Board that the provisional cost was fixed at Rs.2.5 lakhs and at that point of time in the brochure there was mention that the plinth area was to be 1200 sqfts. But subsequently, the plinth area was enhanced to 1400 sqfts., which also is one of the reasons for escalation of the price of the houses apart from the rise in cost of materials and labour cost. In this connection, Mr. Mishra vehemently canvassed that this Commission has no jurisdiction to enter into the question of pricing, and cited the decision in Delhi Development Authority v. Kamini Chopra, 1986-96 Consumer 187(NS). In the said decision, the Honble National Commission, relying on an earlier decision in Delhi Development Authority v. A.N.Sehgal, decided on 30.10.1995, held that the question of pricing cannot be gone into by the consumer fora constituted under the Consumer Protection Act, 1986. Interest is one of the components taken into consideration while determining the price of the flat. It was argued by Mr. Mishra that in view of the aforesaid pronouncement, the complaint of the complainants should not have been entertained and should be dismissed.
13. On the face of such established legal position, we cannot go into the question of pricing. Moreover, escalation of price of the houses over and above the provisional price, which was fixed in the year 1988, was bound to occur in view of lapse of five years, which was beyond the control of the opposite parties.
14. ISSUE NO.3 This is regarding delivery of defective houses to the complainants. We have already indicated that by order of the Honble National Commission dated 15.03.2007 passed in F.A. Nos.117-123 of 1999, the Honble National Commission while setting aside the earlier decision of this Commission dated 31.12.1998 remanded back the complaints to this Commission with request to appoint the Head of the Department of Civil Engineering, Orissa Engineering College, Bhubaneswar, to inspect the houses in presence of both the parties and give report along with the cost of repairs/amount which was required to be spent in removal of the defects. Accordingly, this Commission appointed Professor J.P. Basa, Professor and HOD, Civil, Orissa Engineering College to inspect the houses in question. He visited each and every house after notice to the parties and reported that he had absolutely no scope to visualize any repairs to be taken up during his inspection and to prepare an estimate about the expenses towards rectification of defects, as desired. He has clearly mentioned in his report that it was not possible to prepare an estimate at this stage when buildings have been totally renovated/re-modeled and defects/repair, if any, are not visible. The Honble National Commission, with a view to find out the defects in the respective houses of the complainants and to estimate the cost of repair to remove such defects directed for appointment of the HOD (Civil), Orissa Engineering College as the Commission to submit his report. When on visit to the houses of the respective complainants the Commission found nothing visible so as to assess the cost of repair, these complainants cannot derive any benefit out of such report, nor can this Commission assess the cost of repair in absence of any defects in the buildings.
15. Before parting with the case, we would like to note here that during the last phase of the construction work of the buildings, some defects were pointed out to the opposite parties and the opposite parties have asserted and led affidavit evidence that before handing over possession of the houses to the respective allottees, the defects pointed out had been meticulously removed.
16. In view of our above findings on the issues, we find absolutely no merit in the complaints, which are accordingly dismissed without any order as to cost.
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(Justice A.K. Samantaray) President ........
(Subash Mahtab) Member SCDRC, Orissa, Cuttack September , 2009/Nayak