National Consumer Disputes Redressal
Bihar State Housing Board And Ors. vs Prio Ranjan Roy on 14 December, 2001
ORDER
D.P. Wadhwa, J. (President)
1. These two cross-appeals are against the order of the Bihar State Consumer Disputes Redressal Commission holding that there was deficiency in service by the Bihar State Housing Board in not providing the promised house to Prio Rajan Roy, the complainant. State Commission issued direction to the Housing Board to compensate the complainant by allotment of another house of similar type which had been allotted to him earlier type 3K 43 and hand over possession to him. Further direction which the State Commission has given are as under:
"We would also direct that the complainant be further compensated by the Housing Board for the rental paid by him for accommodation hired by him after retirement. Shri Roy deposited a sum of Rs. 5,260/- as per terms of allotment of House No. 3K 43 to the Board on various dates. This amount has to be returned to him and will also carry an interest @ 18% per annum from the date of deposit to the date of refund.
For all the tribulations, anxieties and the delay in making the accommodation available to Shri Roy by the Housing Board we would further direct the Housing Board to compensate to the complainant to the extent of Rs. 50,000/-. All these payments have to be made within three months of the date of the order and a similar house in a similar Housing Colony be made available to Shri Roy by the Housing Board within a period of three months from today".
2. Feeling aggrieved both the Housing Board - opposite party and Roy, the complainant have filed these appeals before us.
3. These two appeals were decided by order dated 4.4.1996 by this Commission resulting modification of the order of the State Commission. This Commission directed that a sum of Rs. 7.00 lakhs be paid as compensation to Roy by the Housing Board.
4. Again both the Housing Board and Roy felt aggrieved and filed appeal before the Supreme Court which were decided by order dated 7.4.1997. Supreme Court remanded the appeals to this Commission holding that there was no proper assessment while awarding the damages to Roy. We reproduce the order dated 7.4.1997:
"Special leave granted.
Notice was issued on the SLPs limited to the question of compensation in the sum of Rs. 7 lakhs.
In regard to the sum of Rs. 7 lakhs awarded to the respondent as compensation, this is what the National Consumer Disputes Redressal Commission said in the order under challenge:
'We are convinced that the Board has treated the Complaint in a most casual manner, the possession of the house duly allotted to the complainant was not handed over to him but given to some other person, not once but twice. Having regard to the default and unjustifiable delay and harassment caused by the Board and in the light of facts and circumstances of the case, we are of the view that payment of a total compensation of Rs. 7.00 lakhs to the Complainant by the Board alongwith refund of Rs. 5,260/- deposited by him to the Board on various dates as per terms of allotment of house 3K 43 would meet the ends of justice'.
Where damages are awarded there must be an assessment thereof and the order awarding damages must contain an indication of the basis upon which the amount awarded is arrived at. There should have been some statements in the order under challenge about the relationship between the amount awarded and the default and unjustifiable delay and harassment found to have been caused.
It is, therefore, appropriate that the matters be remanded to the National Forum so that the aspect of compensation can be considered de novo and, whatever the compensation be that is warded, the order awarding it should set out the reasons for the same.
It shall be open to the Forum to consider, in the process, any offer that the appellant Board may make in regard to allowable accommodation.
We make it clear that we are not making any observation either in regard to the quantum of compensation or alternative accommodation.
The appeals are allowed to the extent that the compensation amount of Rs. 7 lakhs awarded to the respondent is set aside. The aspect of compensation is remanded to the Forum to be considered afresh and decided upon in the light of the observations hereinabove. The matters shall be expedited before the Forum.
No order as to costs.
(sic)
5. It would be thus seen the only issue before us is as regard the amount of compensation to be awarded to Roy. Rest of the order of this Commission dated 4.4.1996 has met the approval of the Supreme Court. We, therefore, need not narrate the facts of the case again and would reproduce what was stated in our earlier order dated 4.4.96 and thus we reproduce as under:
"1. The above two cross appeals are against the order 2.4.1993 of the State Consumer Disputes Redressal Commission, Bihar in case No. 52 of 1991.
2. The complainant, Shri Prio Ranjan Roy was allotted House No. 3K 43 (with an area of 0.077 acre) under the Low Income Group Housing (LIG) Scheme in Mohalla Bariyatu, Ranchi Town on 28.3.66 by an order of the Government of Bihar and an agreement was registered between the Complainant and the Government of Bihar on 1.8.66. Tentative price of the house was fixed at Rs. 14,000/- at that time. Thereafter, the District Development Officer, Ranchi wrote to the Executive Engineer, Housing Department, Ranchi directing him to hand over possession of the said house to the Complainant. In the meanwhile, the Complainant paid the first instalment of Rs. 3,000/- as stipulated and also subsequent instalments on several dates aggregating to Rs. 2,260/- but possession of the allotted house was not given to him and instead, it was allotted to one Smt. Ishwari Devi. On 2.2.1969, another order was issued allotting house No. 3K 91 to the Complainant which according to him was in a most dilapidated condition and was not worthy of habitation and he, therefore, laid down certain conditions for taking this house in lieu of the originally allotted house No. 3K 43. Though according to the Complainant almost all conditions were accepted by the Board, possession of the house No. 3K 91 also was not given to him. The Bihar State Housing Board which was constituted in 1972 after taking over all the assets and liabilities of the Housing Department of the State Government in respect of allotment of plots/houses took a decision to allot house No. 3K 91 to Smt. Sumitra Devi, a Minister in the State Government. As a result, no house was given to the Complainant even though he satisfied all the preconditions. The Complainant alleged before the State Commission that because of this, he had been put to difficulty with regard to residential accommodation after his retirement in 1984, that he had paid Rs. 57,500.50 till the date of the complaint (7.10.91) as rent for hired accommodation and that the landlord of the house had filed an eviction suit in the Court of Munsif Magistrate, Ranchi and for increase in monthly rent amounting to Rs. 5,000/- per month. In view of these difficulties, the Complainant prayed before the state Commission the following reliefs: a compensation of Rs. 6,25,000/- for the harassment caused to him, a sum of Rs. 57,500/- paid by him as rent and refund of Rs. 5,300/- paid by him to the Housing Board alongwith interest @ 18%. In their version before the State Commission, the Board made the following points: i) The State Government which had originally allotted the house in favour of the Complainant had not been made a party (ii) The dispute is not maintainable under the Consumer Protection Act as the Board is not carrying on any business of house properties and it is a statutory body constituted for making available plots and houses to people (iii) The matter of alternative allotment to be made in favour of the Complainant was still pending before the Board.
3. The State Commission took note of the fact that in the version of the Board, the facts as contended by the Complainant in his Complaint which was duly supported by an affidavit filed by him have not been disputed and reference to various orders and letters have been said to be matters 'on record'. Since the Housing Board took over all the liabilities and assets from the Government, the Commission held that it was not necessary to implead the Government as a party. On the question of jurisdiction, the Commission relied on the findings of the National Commission in UP Avas Evam Vikas Parishad v. Garima Shukla and Ors. (1991) Consumer Cases 151 and held the Complaint is maintainable. Regarding the matter of alternative allotment, the State Commission pointed out that it gave a number of opportunities to the Board to finalise the pending matter, but the Board kept on postponing the matter time and again.
4. The Commission observed that the matter had been pending with the Board for about 27 years although the Board had ample opportunities to redress the genuine grievance of the Complainant. The State Commission concluded that the Housing Board had been negligent, even callous in the matter and there was deficiency of service. The Commission, therefore, directed that the Complainant be compensated within a period of three months of their order by i) allotment and handing over possession of another house similar to 3K 43 ii) payment by the Board of the rental paid by him after retirement iii) refund of Rs. 5,260/- he had deposited to the Board on various dates for house No. 3K 43 alongwith interest @ 18% per annum from the date of deposit to the date of refund and iv) payment of Rs. 50,000/- for the tribulations and anxieties due to the delay in making the accommodation available to him.
5. In their appeal (FA No. 294/93), the Board have stated that there are no 3K type houses available and that they had offered to the Complainant through their letter dated 5.2.93 an alternative allotment of house No. LS-1 in Harmu Housing Colony in Ranchi which according to the Board is the best possible alternative house available with them under L.I.G. category at Ranchi. The Board have reiterated that they function on no loss no profit basis and there is no provision under their statute to award the rental amount and compensation for delay. According to the Board, the scheme of construction, allotment and possession of houses is such that there is bound to be delay on some account or the other and if on account of delay, the Board has to pay compensation, it would not only be difficult but absolutely impossible for the Board to function and do its primary duty of construction of houses. In his version, the Respondent-Complainant has contended that the house LS-1 made available by the Board at Harmu Housing colony is not at all similar to house No. 3K 43 at Bariatu for the following reasons: (i) it is situated by the side of Harmu Burning Ghat (ii) it is in a polluted atmosphere (iii) it is far away say 10 to 15 Kms. From Bariatu (iv) it is not three roomed house but has only two rooms (v) it contains less area of land and (vi) it is a half-portion of a twin house whereas the Bariatu house is an independent house.
6. The appellant-Board filed a rejoinder to this counter affidavit of the Respondent. However, the submission are at variance with those before the State Commission as also in their Appeal. It is mentioned in the Rejoinder that the agreement registered with the Complainant on 1.8.66 for house 3K 43 was terminated by the Department and was allotted to Smt. Ishwari Devi with whom an agreement was also executed. The Board have put the blame on the Complainant that he did not make any complaint at that time and came with a belated petition before the Consumer Forum in 1991 and have pointed out that the Complainant could not get house 3K 91 allotted on 2.2.69 because he failed to complete all the formalities required under the terms and conditions of the allotment letter for getting the agreement executed and registered. It has been made out that the Complainant was at fault in pointing out the defects without taking possession of the house. This was, however, not the case of the board before the State Commission. The State Commission's order has clearly pointed out that the possession of the house duly allotted in favour of Shri Roy in 1966 was not given to him inspite of the registration of the deed and inspite of Shri Roy fulfilling all the conditions enforced in the terms and conditions of the allotment. Similarly in respect of the second house which was allotted to him in lieu of the first one, the State Commission has observed that possession of the same was also not given to him even though specifically ordered to be done so after the house was made habitable.
7. As for the Cross Appeal field by the Complainant (FA No. 330/95), there is a delay in the same which has been explained by the Appellant - Complainant as due to the non-receipt of the certified copy of the judgment of the State Commission in time. A copy of the order was stated to have been received only on 3.9.93 alongwith the Memo of the FA No. 294/93 filed by the Board after which the Complainant preferred his appeal. In the circumstances, the delay is condoned. In his Appeal, the Complainant has prayed that (i) the rental should be awarded from the date of agreement i.e. 1.8.1996 and not just from the date of his retirement (ii) allotment order issued for house No. 3K 91 in favour of Smt. Sumitra Devi, is illegal and liable to be set aside as she, as a Minister, admittedly does not belong to LIG and (iii) whatever rent is finally passed as fair rent from March, 1991 after his appeal against a rent Court's decree obtained by the landlord for enhancement of rent from Rs. 200/- per month to Rs. 2,150/- per month be paid to him. Subsequent to this appeal, a synopsis and chronology was filed by the Complainant wherein he has prayed that the house allotted to the Minister be cancelled and possession directed to be given to him failing which the Board be directed to pay as damages equal to the present day value of the house which amounts to Rs. Eleven Lakhs thirty five thousand, in addition to other reliefs.
8. We have heard counsel on both sides and carefully gone through the available records. The argument of the Board that since they are functioning on no loss no profit basis, it is difficult from them to pay compensation for such cases of delay which according to them are normal procedural delays in the scheme of their functioning, is just indefensible. That the public authorities rendering housing services under different enactments are covered under the jurisdiction of the Consumer Protection Act is settled, after the judgment of the Supreme Court on Lucknow Development Authority v. M.K. Gupta (1986-95 Consumer 278).
9. The original prayer of the Complainant before the State Commission was for compensation of Rs. 6.25 lakhs for harassment besides relief for rent paid by him and refund of money deposited by him with the Board. The State Commission ordered compensation in terms of allotment of a house similar to 3K 43 besides payment of rent and refund of deposits and compensation as detailed in their order. However, the Board has not been able to comply with this order. It now emerges that Board is not having a house similar to 3K 43 or 3K 91. The alternative house offered by the Board LS-1 was not acceptable to the Complainant for reasons given by him. We are convinced that the Board has treated the Complainant in a most casual manner the possession of the house duly allotted to the Complainant was not handed over to him but given to some other person, not once but twice."
6. Thereafter this Commission assessed the total compensation at Rs. 7.00 lakhs and also directed the Housing Board to refund Rs. 5,260/- paid by Roy to it with interest @ 18% per annum from the date of deposit till the date of refund. Cost of Rs. 5,000/- was also awarded to the complainant.
7. It was submitted before us that after the order dated 4.4.96 of the National Commission Housing Board did pay to Roy an amount of Rs. 38,751/- which was towards the refund of original amount deposited by Roy with the Housing Board in 1966 with interest. After the order of the Supreme Court remanding the appeals various adjournments were sought by he Housing Boards. By order dated 8.11.2000 it was directed that the Board would find out what was the difference between the market price of the plot of land with a house of similar plot of land in a similar area which was offered to Roy. Parties were given opportunities to file affidavit giving valuation report of house in question. Only Roy filed affidavit. Housing Board defaulted. One more opportunity was granted to it to file the affidavit and submit the valuation report. Again the order remained uncomplied.
8. With his affidavit Roy filed valuation report giving valuation of the property including the land value at Rs. 9,56,700/-. It is made up as under:
"Valuation
1. Cost of Land 4.39 Katha @ Rs. 80,000/- per kaths Rs. 3,51,200.00
2. Construction cost for 1224 sft @ Rs. 350/- per sft. Rs. 4,28,400.00
3. Cost of Installation of Water supply and sanitary works @ 15% of item No.2 Rs. 64,260.00
4. Cost of Electrification and fittings etc. 10% of item No.2 Rs. 42,840.00
5. Cost of Boundary wall, garrage and Steel Gate etc. LS Rs. 55,000.00
6. Miscellaneous items LS Rs. 15,000.00
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Rs. 9,56,700.00
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9. For the year 1991 valuation is given at Rs. 4,43,450/-. Both the valuation report are by Krishna Mohan Tanti, approved valuer. Though there is no rebuttal to this evidence, these valuation reports appear to be on the higher side. There is on record a statement showing the fair market value of the similar property in question given by the registered valuer and that by the Revenue Section of the Housing Board. In March 1991 while the registered valuer gave value of the house at Rs. 3,99,414, that given by the Revenue Section of the Housing Board was Rs. 1,34,673.64. There is no reason why Revenue Section should not give correct valuation. Construction is the job of the Housing Board. On the other hand sometimes a private valuer is apt to exaggerate the cost to help the party engaging him. We however, should not be understood as saying that valuation report of a private valuer cannot always be looked without suspicion. It would depend upon the facts of each case.
10. We are concerned with 1991 as it was the year when the complaint was filed by Roy. We are of the view to adopt the valuation given by Revenue Section of the Housing board which is Rs. 1,34,673.64. To this we will add interest @ 18% per annum for 10 years and it will come to Rs. 3,76,000/-. That in our opinion would be reasonable compensation to be awarded to Roy considering the circumstances narrated in our order dated 4.4.96.
11. We accordingly direct Bihar Housing Board to pay a sum of Rs. 3,76,000/- to Roy within a period of three months from today otherwise complainant will be entitled to get execution of the order from the State Commission and also interest @ 18 on this amount till payment. We will leave the parties to bear their own costs.