State Consumer Disputes Redressal Commission
The Executive Engineering & ... vs N.R. Srinivas,M.2-18, 2Nd ... on 13 January, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Thiru.J.Jayaram, M.A., M.L., JUDICIAL MEMBER
Thiru.S.Sambandam, B.Sc., MEMBER II F.A.475/2010 [Against order in C.C.2/2010 on the file of the DCDRF, Nagapattinam] DATED THIS THE 13h DAY OF JANUARY 2011 The Executive Engineering & A.D.O., | Appellant/Opposite Party Tamil Nadu Housing Board, | Tanjore Housing Unit, New Housing Unit Colony, | Tanjore - 5. | Vs. N.R. Srinivas, | Respondent/complainant M.2-18, 2nd Street, | Maraimalai Nagar, | Nagapattinam. | The Respondent as complainant filed a complaint before the District Forum against the Appellants/opposite party praying for the direction to the opposite party to pay Rs.50,000/- towards compensation, considering the complainant's mental agony in getting sale deed from the opposite party, as a senior citizen and to pay Rs.5,000/- towards the cost. The District Forum allowed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.15.06.2010 in O.P.2/2010.
This appeal coming before us for hearing on 05.01.2011, upon hearing the arguments of the appellant counsel and respondent in person and perused the documents, as well as the order of the District Forum, this Commission made the following order:
Counsel for the Appellant /OP : M/s.S.Rajakumar, Advocate.
For the Respondent/Complainant : Party in Person M. THANIKACHALAM J, PRESIDENT
1. The opposite party in CC.2/2010 on the file of the District Consumer Disputes Redressal Forum, Nagapattinam, is the appellant.
2. The respondent in this appeal, who is the complainant, had purchased a MIG Type of house in neighbourhood scheme at Nagapattinam, from the opposite party, for which, he had paid even the revised cost of Rs.1,08,000/- and pursuant to the same, house was also handed over to the complainant, on 6.11.1991. Despite the fact, the entire amount was paid, taking advantage of the fact that the order reads tentative costs, the opposite party was claiming enhanced amount, which was challenged in OP.1/98, where, an order has been passed in favour of the complainant, which was challenged before this Commission in AP.87/2001, wherein, this Commission has modified the order, issuing direction the Housing Board, to issue notice as far as land costs is concerned, negativing the other claims, and on payment of that land cost, directing the opposite party to execute the sale deed.
3. As per the direction, the opposite party claimed a sum of Rs.37,934/- as well claimed a sum of Rs.1,14,063/- as revised land costs, as per the letter dated 7.7.2006, that is against the order of this commission. Since the opposite party failed to execute the sale deed, execution proceedings also filed, where, a direction has been issued to execute the sale deed, which was challenged before this Commission in R.P.39/2008. As per the observation made by this Commission, a Demand Notice was issued, claiming enhancement, against the order passed by this Commission in AP.740/2005, which was disposed, as per the order in AP.87/2001, in which, both the complainant and the opposite party are the parties. After the disposal of LAOP case by the Sub-Court, Nagapattinam and as per the direction of this Commission, the complainant if at all entitled to pay only a sum of Rs.18,111/- and the opposite party should execute the sale deed. The opposite party instead of collecting that amount, issuing Demand, insisted to pay more amount, namely Rs.1,08,000/-, unnecessarily and unjustifiably. Thus, levelling negligent and deficiency in service, this complaint came to be filed, seeking direction against the opposite party not to demand anything on revised tentative cost, to give same benefits as given to the party in AP.740/2005, regarding the enhanced land cost without interest and for compensation for mental agony etc.,
4. The opposite party admitting the allotment of the house as well the claim for the enhanced amount, which was according to the rules and regulations, opposed the claim, that the complainant has to pay a sum of Rs.1,14,063/- being the difference in the cost since the original cost fixed was tentative and that the decision in AP.740/2005 is not applicable to the present case and that suppressing the real fact since the case is filed, the complaint is liable to be dismissed with cost.
5. On the basis of the pleadings, as well as considering the admitted facts, the District Forum came to the conclusion that the opposite party had committed negligent act, claiming more than Rs.18,111/- from the complainant, since the same amount was claimed, for the same kind of property in this area, which should be construed as negligent act. On the above said basis, a direction has been issued to collect Rs.18,111/- from the complainant, and execute the sale deed, in addition to, pay a sum of Rs.10,000/- as compensation, as per the order dated 15.6.2010, which is challenged by the opposite party, on various grounds in this appeal.
6. The learned counsel for the appellant, would contend that the original cost fixed was tentative in nature admittedly, that as per the Land Accusation Proceedings, which was challenged, they were compelled to pay more amount to land owners, in this view, they are entitled to claim the enhanced land cost from the allottees, which cannot be termed as negligent act, that the case relied on by the complainant has no relevance to this case and the yardstick adopted, cannot be extended to the complainant, which are all not considered by the District Forum, resulting erroneous view, warranting disturbance or upsetting the same, which is opposed.
7. The complainant/respondent had purchased a house-MIG from the opposite party, which was constructed by them under neighborhood scheme, Nagapattinam, elsewhere in 1991 and took possession also on 06.11.1991.
For the past 20 years, though he had approached Consumer Forum in the year 1998, still he is unable to get the Sale Deed, executed by the opposite party. This is the second round of litigation as far as the same property is concerned, by the complainant. In order to solve the dispute in this case, we have to see, not only the order obtained by the complainant in COP.1/98 and its appeal, but also the order obtained by one Arief in AP.740/2005, which came to be passed, pursuant to the order in OP.20/2001, on the file of the District Forum, Nagapattinam.
8. Admittedly, even as evidenced by the Certificate issued by the opposite party dated 17.12.94, the entire tentative cost of the house was paid.
It is also not in dispute that the cost so paid only tentative, thereby indicating that the opposite party is entitled to fix the final cost, depending upon the LAOP or the completion of the building as the case may be, as applicable. It is also an admitted fact, that the land owners had challenged the compensation granted by the Land Acquisition Authorities, resulting enhancement of compensation also. Therefore, taking into account, the complainant had paid the entire tentative cost, as of right, he cannot insist or compel the opposite party to execute the sale deed, without paying the enhanced land cost. But, a Demand notice was issued, claiming enhanced cost, that was challenged by the complainant in COP.1/98, wherein, the District Forum held, as if, the opposite party is not entitled to claim enhanced cost, whereas, they have to pay some amount, which order reads "We direct the opposite party-2 to execute the sale deed within 2 months from the date of receipt of copy of the judgement. We also direct the opposite party-2 to pay a total sum of Rs.23,500/-. This amount shall be paid within two months from the date of receipt of copy of the judgement".
9. Aggrieved by the said order, the opposite party challenged the same before this Commission in AP.87/2001. This Commission, considering the facts and circumstances of the case, felt, the order passed by the District Forum as well as the enhanced demand claimed by the opposite party are not proper or incorrect. In this view, this Commission has passed an order in AP.87/2001, dated 24.10.2005, which reads, "The Housing Board shall not be entitled to call upon the complainant to pay development charges, cost of amenities and cost of buildings as they had already been worked out on the date of allotment and that cannot be any enhancement of that component beyond the period of three years from the date of allotment.
So far as the land cost is concerned, the Housing Board shall serve a demand in writing on the complainant, indicating the difference between the original cost of land and the enhanced cost of land asking him to pay the said amount within a time as may be fixed by them and depending upon the outcome, it is open to the Housing Board to take any appropriate action that may be available to them.
On payment by the complainant of the difference in the cost as set out above, the Housing Board shall execute the sale deed in favour of the complainant without demur".
10. Pursuant to this order, it seems, a Demand Notice was issued, dated 7.7.2006, claiming a sum of Rs.1,51,997/-. The complainant instead of paying that amount, appears to have filed the execution proceedings and the District Forum has given a finding that the Demand Notice was not in accordance with law, resulting RP.39/2008, before this Commission, which was set aside. Thereafter, instead of availing the opportunity given by this Commission in RP.39/2008, the complainant once again filed EP, wherein, an arrest warrant was issued for non-compliance of the order, which was challenged before this Commission by the opposite party in RP.2/2010, which was allowed by this Commission, dismissing the execution petition, as per the order dated 24.06.2010.
Only thereafter, as directed by this Commission originally, CC.2/2010 was filed, wherein, an order has been passed, which is under challenge. Now, we have to see, the connected or parallel proceedings initiated by one Arief and the property covered therein.
11. One Arif had also purchased a house of the same measurement, as submitted before us, in the same scheme from the opposite party, resulting the same kind of problem. In OP.20/2001 on the file of the District Forum, Nagapattinam, certain directions were given by the District Forum, and the same was challenged before this Commission in AP.740/2005. By this time, the appeal preferred by the opposite party, questioning the order in COP.1/98 filed by the present respondent in this case, came to be disposed on 24.10.2005 [vide order in AP.87/2001]. This Commission taking into account the similar circumstances available in AP.740/2005, quoting the operative portion of the order in AP.87/2001, dated 24.10.2005 and concluding that should be followed in AP.740/2005 also, disposed that appeal on 23.04.2007. The relevant portion in the order reads "We have gone through the materials on record. Under similar circumstances, in AP.87/2001 on 24.10.2005, we passed the following order", thus saying the operative of the said order is reiterated.
Then, in Para 4 of the order, it is said "We are inclined to follow our above earlier order". Thus concluding in the following terms, AP.740/2005 was disposed, which reads "In such circumstances, we deem it proper to direct the opposite parties to work out the amount due for land as on 18/03/97 without any demand for interest subsequent thereto. The opposite parties shall quantify the amount for the land as on 18/03/97, make a demand to the complainant for payment of the said amount within a time as may be fixed by them and on payment by the complainant after satisfying himself as to the quantum. The Housing Board shall execute the sale deed in favour of the complainant within two months after payment by the complainant.
The appeal shall stand allowed as indicated above.
The order as to payment of compensation of Rs.5,000/- is vacate since we are refusing interest to the opposite party post 18/03/1997. However, the direction by the District Forum for payment of cost of Rs.1,000/- by the first opposite party to the complainant will stand. There will be no order as to cost in the appeal".
12. Fortunately for the Arif, from which date, the amount has to be worked out and how the land cost should be calculated, from which date, are all incorporated in AP.740/2005. But in AP.87/2001, the dates were not mentioned, but the dates regarding the land cost enhanced, are all one and the same, because Mr.Arif and Mr.Srinivasan have purchased the property in the same Survey Number, which were acquired for the construction of MIG Houses and both are neighbours. Therefore, the submission of the learned counsel for the appellant, that the decision in AP.740/2005 is different or that is not applicable to the present case, namely Srivinivan's case is not appealable to us. In fact, as pointed by the complainant himself in AP.740/2005, the decision rendered in AP.87/2001 is followed, though not dates are given and therefore the opposite party despite the dates have not been mentioned, should have adopted the same yardstick, as fixed by this Commission in AP.740/2005 as detailed in Para 5 of the judgement. If the amount is calculated, the amount payable by the complainant for the enhanced land costs, should come as on 18.03.97, only Rs.18,111/-, which is also seen from the Typeset, produced along with Written Argument not under challenge.
When the both properties are similar in nature, extent are one and the same, when the decisions were rendered by this Commission, based upon the same order or similar order, it may not be fair on the part of the opposite party to claim more amount than the amount, fixed by this Commission in AP.740/2005. The District Forum considering the above facts, has rightly come to the conclusion that excess amount claimed, than the amount, as ordered by the State Commission, is incorrect, which finding, we endorse.
13. The District Forum has also granted a sum of Rs.10,000/- as compensation, to which finding, we are not agreeable. Admittedly, as per the understanding and interpretation and as per the rules and regulations, the opposite party has claimed enhanced land cost, which cannot be termed as prima facie negligent, in view of the admitted position even as per the decision by this Commission, the complainant is liable to pay enhanced land cost. It is not the case of the complainant, anywhere that he was willing to pay the enhanced cost, as per the Land Acquisition Proceedings, whereas, whenever any demand was issued, without paying the same, he challenged the same, he attempted to enforce the same by EP and in fact, at one point of time, he obtained an arrest warrant also, thereby showing, he had also committed negligence act. Such a person, in our view, is not entitled to compensation, and therefore, we are inclined to set aside the compensation of Rs.10,000/- also.
14. In the result, the appeal is allowed in part, the order of the District Forum is modified, setting aside the compensation alone, otherwise, confirming the order. No order as to cost in this appeal.
S. SAMBANDAM J. JAYARAM M.THANIKACHALAM MEMBER II JUDICIAL MEMBERI PRESIDENT INDEX : YES / NO Ns/mtj/Housing Board/fm