State Consumer Disputes Redressal Commission
Aurandabad Housing & Area Development , ... vs Usha Ashok Puri on 22 February, 2018
1 F.A.No.: 69,70/16
428,429/2017
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION,MUMBAI, CIRCUIT BENCH AT AURANGABAD.
Date of filing :29.11.2016
Date of order :22.02.2018
FIRST APPEAL NO. :69 & 70 OF 2016
IN COMPLAINT CASE NO.: 165/15 & 402/14
DISTRICT CONSUMER FORUM : AURANGABAD
Aurangabad Housing and Area Development,
Aurangabad, Regional Unit of Maharashtra
Housing and Area Development Authority,
Grihanirman Bhavan, Near Mahaveer Statue,
Central Bus Stand Road, Aurangabad,
Through its Chief Officer/Estate Manager,
Aurangabad. ...APPELLANT
VERSUS
1. Smt. Anita Ratnakar Sakhare,
R/o Row House No.1, MHADA Colony,
Garkheda Parisar, Aurangabad. ...RESPONDENT
(In Appeal No.69/16)
2. Shri.Kiran Arun Shirurkar,
R/o Row House No.1236, Sai Nagar,
CIDCO, N-6, Aurangabad. ...RESPONDENT
(In Appeal No.70/16)
Date of filing :20.02.2017
Date of order :22.02.2018
FIRST APPEAL NO. :428 & 429 OF 2017
IN COMPLAINT CASE NO.: 48/2016 & 503/2015
DISTRICT CONSUMER FORUM : AURANGABAD
Aurangabad Housing and Area Development,
Aurangabad, Regional Unit of Maharashtra
Housing and Area Development Authority,
2 F.A.No.: 69,70/16
428,429/2017
Grihanirman Bhavan, Near Mahaveer Statue,
Central Bus Stand Road, Aurangabad,
Through its Chief Officer/Estate Manager,
Aurangabad. ...APPELLANT
VERSUS
1. Smt.Usha W/o Ashok Puri,
R/o "Sukruti", Vaibhav Nagar,
Karegaon Road, Parbhani 431 401. ...RESPONDENT
(In appeal No.428/17)
2. Shri.Chandrasen Vishnupant Kulthe,
Through its GPA holder,
Dharmendra Vishnupant Kulthe,
R/o Shinde Orchid, Gadiya Vihar,
Road, Shahnoorwadi, Aurangabad. ...RESPONDENT
(In appeal No.429/2017)
CORAM : Mr.Justice A.P.Bhangale, Hon`ble President
Mr.Dr.S.K.Kakade Hon`ble Member.
Present : Adv.S.M.Jondhale for MHADA in appeal No.69 & 70/17, Adv.K.H.Dongre for MHADA in appeal No.428 & 429/17, Adv.K.S.Shah for respondents/org.complainants.
O R A L O R D E R (Delivered on 22nd February 2018) Per Mr.Justice A.P.Bhangale Hon`ble President.
1. These appeals are directed against the judgment and award delivered separately in consumer complaint cases as detailed under:-
i) F.A.No.70/2016 is preferred from consumer complaint No.402/2016 decided on 5.11.2015 in which complainant Shri Kiran Shirurkar had booked row-house No.26 3 F.A.No.: 69,70/16 428,429/2017 admeasuring 104.59 sq.mtr. area for total consideration paid in the sum of Rs.25,17,646/-pursuant allotment letter dated 07.6.2013 . According to the complainant though possession was delivered on 21.6.2013 it was not in readily habitable condition so as to occupy the same.
ii) F.A.No.69/2016 is arising out of judgment and award passed in consumer complaint No.165/2015 decided on 5.11.2015 by the same Forum i.e. Aurangabad District Consumer Disputes Redressal Forum. Concerning Anita Sakhare who had booked row-house NO.1 admeasuring about 123.63 sq.mtr. plot area and built up area of 90.95 sq.mtr. in respect of which complainant paid consideration in the sum of Rs.27,38,499/-. Pursuant to the letter 31.5.2013 possession was delivered on same date i.e. on 31.5.2013 in which consumer complaint was lodged on 2.6.2015. In this particular complaint proceeding it is grievance of the appellant that the complaint was barred by law of limitation as the complaint was not filed within two years from the date of possession.
iii) F.A.No.428/2017 arose out of consumer complaint No.48/2016 which was decided on 6.1.2017, it is in connection with row-house No.23 booked by Usha Puri admeasuring plot NO.102.90 sq.mt. and built up area 89.95 sq.mtr. In respect of which total consideration paid by purchaser was in the sum of Rs.25,62,851/-. Pursuant to allotment letter dated 9.12.2013 in respect of which date of possession was handed over on 11.12.2013.
iv) F.A.No.429/2017 booked by Chandrasen Kulthe arose out of judgment and award dated 6.1.2017 in the consumer complaint No.503/2015. It was in connection with row- house No.15 admeasuring 133.32 sq.mtr. and built up area 4 F.A.No.: 69,70/16 428,429/2017 90.95 sq.mtr. Total cost paid in the sum of Rs.31,87,795/-. Pursuant allotment dated 15.3.2014, possession was delivered on 15.3.2014.
2. It is the grievance of appellant that appellant had while constructing the row-houses agreed to be sold on lottery basis to the complainants-row house purchasers pursuant to the advertisement for sale of about 26 row-houses as mentioned in the advertisement dated 22.9.2007 published in daily "Lokmat" circulated as Aurangabad edition. In that advertisement the appellant had clarified about the scheme that on the basis of lottery system for various income groups certain number of galas were to be constructed as detailed in the advertisement with approximate price mentioned therein. The prospective purchasers were informed about the amounts payable at the time of filing of the application as well as payable prior to getting possession of the gala concerned, mentioning that detailed advertisement with terms and conditions which displayed by the appellant at their office and that "no objections certificate" from MHADA and prior permission of the local authority would be necessary. The prospective purchaser is bound to pay stamp duty before taking possession as prescribed by Stamp Controller and Inspector General of Registration for the State of Maharashtra. The amount accompanied with the application was payable by D.D. from Nationalised bank payable to MHADA at Aurangabad branch. Accordingly it appears that the applications were made by the complainants from "higher income group category" available for common people. Thus as prescribed in the application the applicants had filled in detail in the printed proforma available to them and filed such applications under their signature for allotment of residential gala with supporting affidavit with the applications. It is not in dispute that applications preferred in the prescribed proforma with supporting affidavit were accepted by the appellant with qualification that though approximate price was mentioned less the cost was enhanced on 5 F.A.No.: 69,70/16 428,429/2017 account of increased tender rate calling upon the applicants paid the difference by draft accordingly and instalments payable as prescribed in the acceptance letter. Thus increased cost was demanded which was also paid by the prospective purchasers. The prospective purchasers there upon enquired about possession of the residential galas with open space in the plot offering to pay the price and protesting the delay caused at the instance of the appellant to complete the construction and to deliver possession of the residential galas on the ground that the prospective purchasers are suffering payment of additional interest and also expenditure upon residing rental premises. It appears that the appellant had offered 26 residential galas to the allottees belonging higher income group on lottery basis at land bearing city survey NO.15300/6 situated at Garkheda area of Aurangabad informing the row-house purchasers that they would be bound by the conditions mentioned in the appendix requiring the row-house purchasers to pay the increased cost and also to arrange for obtaining pipe connection for drinking water from Municipal Corporation Aurangabad and also electric connection from the MSEDCL. The communication dated 28.3.2013 was thus sent by Estate Manager of the appellant at Aurangabad. Purchaser accordingly appears to have completed demand made by the appellant though they had grievance regarding the nature of work performed in respect of the row-houses such as water tank constructed without ladder there upon without arrangement to clean the same, unfinished work of doors such as non-fixing of door handle, latches, want of stoppers for the door, defective work, construction of walls in which cracks were developed, kitchen outlet without lid for discharge of water, cementing in the row-house not properly done , stair cases without rolling fitted, non-existence of glass fitted in case of window for toilet and bath-room, unfinished cementing in respect of kitchen platform, want of widow staircase etc. calling upon appellant repair so as to make the row-house habited for the residence of the purchasers. Complainant had grievance that despite calling upon the 6 F.A.No.: 69,70/16 428,429/2017 repairs the appellant-opponent had not responded. Therefore complaints were filed for claiming legal possession in accordance with the agreement with properly habitable residential premises.
3. We have heard both the counsel at length and also perused the impugned judgments and awards which are subject matter of the appeal and copies of communications between the parties. The crux of the grievance of the appellant is that they had to incur additional expenses on account of rising cost of constructions under the scheme. According learned advocate for the appellant some complaints were made to Lok Aayukta and enquiry lasted for long time therefore there was delay in completion of the project resulting in increased cost which the prospective purchasers had to pay on demand made from the appellants. There is no dispute that allotment letters were issued in respect of the row-house purchasers and that registered allotment letters were duly stamped. Our attention was also invited to the belated work order issued by the appellant which was delayed till 29.8.2009 to construct the row-houses with increasing estimated cost resulting thereon. Though it is the case of the appellant that one of the complaints was barred by the limitation. On behalf of the appellant reference is made to one of the order passed in common in F.A. 188 to 192/2017 in which Hon'ble Member of the State Commission Smt.Uma Bora as presiding Member was pleased to dismiss the appeals U/s 24 of Consumer Protection Act holding that the complaints were required to be filed within 2 years from the date of cause of action.
4. Our attention has been invited to mainly three judges bench ruling in Shri Krishan -Vs- Kurukshetra University reported in AIR 1976 Supreme Court page 376 who argued that in the given case very payments have been made as demanded in ignorance of legal right or under duress cannot bind a person making such payment. Reference is also made to Section 17 of the Limitation Act to argue that the 7 F.A.No.: 69,70/16 428,429/2017 payment was made on account of mistake or because of fraud was made by other side for insisting upon payment wherein such a case period of limitation shall not begin to run until the person making payment has discovered mistake or fraud played upon him by the other party to the proceeding. To substantiate the contention reference is made to Hariyana Urban Development authority _Vs- Rajnish Chandar Sharda reported in AIR 2000 SC 3573(1) on the point of delay in allotment of plot by the development authority resulting in compulsion for the prospective allottees who had to live in rented accommodation. In which Hon'ble National Commission had directed compensatory interest upon the amount of deposit by the allottee from the date of deposit till in possession of the plot. Reference is also made to Mahabir Kishore -Vs- State of M.P. reported in AIR 1990 SC 313 in which the Apex Court considered the starting point of limitation as from the date of discovery of mistake of law by the party filing complaint. Para 20 of the said ruling the Apex Court considered the implication U/s 17 of the Limitation Act 1963 to hold that in such a case on the ground of mistake the period of limitation does not begin to run until the plaintiff had discovered the mistake or to hold reasonable diligence have discovered it. Our attention also invited to ruling of Tamilnadu Housing Board -Vs- Sea Shore Apartments Owners Welfare Association reported in I(2008) CPJ 45(SC) regarding the demands made by the appellant for additional amount than stated in the advertisement earlier. In which the Apex Court considered the proposition that any attempt to exclude services offered by statutory body to common man from the application of the Consumer Protection Act must be discouraged. It would be against the spirit behind the benevolent legislation as price fixation on several facts. In the said ruling the proceedings were remanded for fresh decision to be decided according to law after hearing the parties.
5. In the present case in our view when appellant had advertised the scheme under MHADA with rules there under for allotment of 8 F.A.No.: 69,70/16 428,429/2017 residential galas for different income groups amongst common people for estimated price as on 22.9.2007, the appellant as a housing authority was duty bound to start construction in accordance with law promptly without causing delay so as to construct, complete and transfer residential galas allotted to the complainants in reasonable habitable condition at agreed price. Though in a given case enhancement may be permissible on account of increasing cost of construction the appellant as housing authority ought to have abided with their policy particularly in resolution dated 7.8.2009 and earlier on 9.11.1982 should not have demanded unjust increases.
6. The prospective row-house purchasers needed their own houses for residence and were spending hard earned money to acquire the same. Notwithstanding the fact that increased cost of construction were demanded, the complainants chose to pay the same and justified to agitate the grievance that the housing authority was bound to provide residence by way of row-houses to the complainants within reasonable time with effect from the date of allotment of the row- houses. There can be no justification for causing unreasonable delay in the matter of completion of buildings for the row-houses building the pretext that Lokayukta was making enquiry . In our view in the absence of any stay order from any judicial or quasi-judicial fora to construct the houses, the appellant were not justified to wait and watch the result of enquiry assuming that the Lokayukta had conducted such enquiry. When the complainant has approached the Consumer Fora with averments made in the complaint pleading facts and circumstances making grievance above unjustified increase demanded for to allot and give possession of the row-houses to the complainants and also considering the delay that has occurred on the part of housing authority to complete the construction and to hand over the possession of the row-houses as agreed. In such case appellant cannot be justified to plead that there was no continuing cause of action for the purchasers of row-houses on the pretext that 9 F.A.No.: 69,70/16 428,429/2017 they have accepted the possession without making grievance as to incomplete work. The case of the appellant that possession of row- house was accepted and therefore complainant had no continuing cause of action cannot be accepted in the light of the proposition in the ruling in respect of legal position cited before us as to bar of limitation in such cases.
7. The contention that the complainants ought to have approached the Civil Court for to claim reliefs in these cases is also not acceptable as the Consumer Protection Act provide additional and supplemental remedy for any consumer in view of Section 3 of the Act regarding complaint of deficiency in service or unfair trade practice when so alleged in the complaint filed before consumer Fora .
8. Learned advocate for the appellant also made a grievance regarding certain observations made in the impugned judgment and award by learned Presiding Member of the consumer Fora below particularly in paragraph of internal page No.13 " आ ह फमान हा श द जाणीवपु वक वापरला कारण ह र कम एका म ह यात ............... एका म ह यात टाचार क न वा चो न आणावी कं वा खाजगी सावकाराकडू न जा त याजदराने आणावी या वषयीचे मागदशन गैरअजदाराने करावे". We disapprove of such random comments as made were uncalled for while dealing with the consumer dispute for the housing construction by an authority which was recognized by public authority at Aurangabad as Regional Unit for MHADA . The above words in our view ought to be expunged from the judgment. We direct accordingly.
9. At the same time we find the rest of judgment except the chart mentioned which appears incomplete at internal page No.20 as the operative part also refers serial No.8 & 9 of the chart which is not so mentioned in the chart. In respect of the judgment and award in consumer complaint 402/2014 we are of the firm view that consumer 10 F.A.No.: 69,70/16 428,429/2017 can file complaint in respect of recovery of the overpaid amounts from him to claim refund of overpaid amounts subject to reasonable rate of interest. In the judgment and award in respect of consumer complaint No.402/2014 the chart do not refer serial No.8 & 9 therefore it should have been corrected as serial No.6 & 7 as mentioned in the clause of 2 at beginning of the operative order instead of serial NO.8 & 9 in clause 2 the serial No.6 & 7 ought to be read as amended. The chart in judgment and award of consumer complaint No.165/2015 refers to 9 sub-heads in the chart. Therefore serial No.8 &9 mentioned in that judgment in operative order in clause 2 appears justified. There is no such chart included in the judgment and award in consumer complaint case No.48/16 & 503/2015 which appears decided by learned President of learned Dist.Consumer Forum below, in which we find that rate of interest is mentioned as 9 % p.a. which in our view is reasonable rate of interest. In respect of refund of excess amount recovered by the appellant it is quantum of amount to be refunded in respect of all these complaints. We direct that the amount shall be refunded to the complainants concerned in each of these cases with effect from the date of respective payment similarly with rate of interest @9% pa. as ordered by learned Dist.Consumer Forum presided over by President. Accordingly we modify the impugned judgment and award and pass the final order.
O R D E R 1. Appeals are partly allowed. 2. The amount to be refunded as directed by learned
Dist.Consumer Forum in respect of the award passed in the complaints which are subject of these appeals shall be refunded with interest @ 9% p.a. with effect from the date of payment till 11 F.A.No.: 69,70/16 428,429/2017 realisation. The amount deposit if any made by the appellant shall be adjusted accordingly .
3. We confirm the compensation as well as litigation cost as ordered by the Dist.Consumer Forum below and directed to pay cost of this appeal quantify the sum of Rs.5000/- in each of the appeal payable in addition by the appellant in each of the complaint. Appeals are disposed of accordingly.
4. Copies of the judgment be issued to both the parties.
Dr.S.K.Kakade A.P.Bhangale Member President Mane