State Consumer Disputes Redressal Commission
Secretary, Orisa State Housing Board, ... vs Rama Chandra Chouchury, D-6/1, ... on 29 July, 2009
STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA:CUTTACK STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA: CUTTACK C.D. APPEAL NOS.149 & 264 OF 2001 From an order dated 29.12.2000 passed by the District Consumer Disputes Redressal Forum, Khurda at Bhubaneswar in C.D. Case No.26 of 1994 In C.D.A. No.149 of 2001 Secretary, Orisa State Housing Board, A/32, Kharavel Nagar, Bhubaneswar, Dist. Khurda Appellant -Versus- Rama Chandra Chouchury, D-6/1, M.S.Flats, Sector-13, R.K.Puram, New Delhi-110 066 Respondent For the Appellant - Mr. S.Mishra & Associates For the Respondent - Mr. R.Mishra & Associates In C.D.A. No.264 of 2001 Ramachandra Choudhury, son of Late D.Purusottam Choudhury, HIG-114, Kanan Vihar, P.S. Chandrasekharpur Bhubaneswar, Dist. Khurda ... Appellant -Versus- 1. State of Orissa represented by Secretary, Housing and Urgan Development Department, Orissa Secretariat, Bhubaneswar 2. Orissa State Housing Board, represented by its Secretary, Kharavelnagar, Bhubaneswar ... Respondents For the Appellant - Mr. R.Mishra & Associates For the Respondents - Mr. S.Mishra & Associates P R E S E N T : THE HONBLE SHRI JUSTICE A.K. SAMANTARAY, PRESIDENT, SHRI SUBASH MAHTAB, MEMBER AND SMT. BASANTI DEVI, MEMBER O R D E R
DATE:-The 29 July, 2009.
Justice A.K. Samantaray, President.
These two appeals arise out of the common judgment and order dated 29.12.200z0 passed by the District Forum, Khurda at Bhubaneswar in C.D. Case No.26 of 1994 and 10 other C.D. Cases filed against (1) Secretary to Government, Housing & Urban Development Department, Orissa Secretariat, Bhubaneswar, and (2) Secretary, Orissa State Housing Board, A/32, Kharavelanagar, Bhubaneswar. In the present appeals, we are only concerned with C.D. Case No.26 of 1994 filed by the complainant Ramachandra Choudhury. By the impugned order, the District Forum allowed the consumer complaint on contest against opposite party no.2 and ex parte against opposite party no.1 with cost of Rs.1,000/- to be paid by the opposite parties to the complainant. It was further directed that the complainant is entitled to refund of the escalated price of Rs.47,487/-, if already paid, and not required to pay the same, if not paid. The opposite parties were directed to pay interest at the rate of 15% per annum on the deposited amount with effect from 01.01.1991 till 01.03.1993. The entire amount along with interest and cost was directed to be paid within 30 days from the date of receipt of copy of the order, failing which the complainant would recover the same in accordance with law. Assailing the said order, opposite party no.2, i.e., the Housing Board, has filed C.D. Appeal No.149 of 2001. The complainant has, however, filed C.D. Appeal No.264 of 2001 for a direction for payment of interest at the rate of 15% per annum on the escalation cost of Rs.47,487/- as well as interest of Rs.13,657/- paid thereon up to the date of actual refund. Prayer has also been made to set aside the impugned order so far as it relates to inspection of house and rectification of defects by respondent no.2. Further prayer has also been made for award of compensation of Rs.55,100/- to be paid by opposite party no.2 towards cost of rectification/replacement of defects.
2. Since both the appeals arise out of the same judgment and order, we have heard them together and dispose them of by this common order.
3. Complainant Ramachandra Choudhury filed the afore-mentioned C.D. Case alleging that he had made initial deposit of Rs.25,000/- pursuant to the advertisement made by opposite party no.2-Housing Board and provisional allotment of a house under the Self-financing Scheme at Chandrasekharpur, Bhubaneswar, bearing number HIG-114 was made in his favour. Final allotment order containing the detailed terms and conditions of allotment was also made in his name. The estimated cost of the house was Rs.2,50,000/- as per the advertisement, which was duly confirmed in the final allotment order, and the expected date of delivery of possession of the house was mentioned to be by December, 1989. But, opposite party no.2-Housing Board arbitrarily enhanced the cost of the project after the stipulated date of payment of final instalment on 30.06.1990 and also delayed the delivery of possession of the house to the complainant by three years in spite of requests and correspondences made by the complainant. In spite of the delay caused by opposite party no.2 in the matter of completion of the project, it arbitrarily and illegally charged interest at the rate of 15% per annum in case of delayed payment of instalments. On 30.04.1990, opposite party no.2 intimated the complainant regarding escalation of the cost of the house from 2.5 lakhs to Rs.3.00 lakhs due to escalation of price of different building materials and labour charges without giving the detailed particulars of escalation and revised the estimate. The complainant raised protest to such escalation. Opposite party no.2-Housing Board in its letter dated 10.10.1990 intimated the complainant for giving delivery of possession of the house by the end of March, 1991 without mentioning the cause of delay or giving any justification for escalation of the price. The Housing Board, however, took some excuses for the delay in construction in its letter dated 22.`12.1990 to cover up its negligence, which, according to the complainant, is nothing but unfair trade practice. The Housing Board in its letter dated 9.11.1991 advised the complainant for joint inspection of the house to find out the defects and deficiencies and to start the process of documentation with effect from 01.10.1990 and to give physical delivery of possession of the house from 01.01.1992. But, the Housing Board failed to materialize the proposal of joint inspection, documentation and delivery of possession in spite of repeated requests made by the complainant. Thereafter, the Housing Board assured to give delivery of possession by October, 1992 through its letter dated 03.09.1992 explaining the difficulties pertaining to supply of water to the housing project by the Public Health Department. The Housing Board, without any valid reason, fixed the final cost of the house at Rs.3,47,487/-, which is inclusive of the previous enhanced cost of Rs.97,497/- over the original and initial cost of Rs.2.50 lakhs as per its letter dated 01.02.1993 with direction to pay the same in six monthly instalments with interest at the rate of 12% per annum and Rs.1,200/- towards water tariff and execute the agreement. The increase of 39% in the cost due to the fault of the Housing Board is not legal and justified, according to the complainant. The complainant signed the agreement under the project to get delivery of possession, but before taking delivery of possession of the house, he intimated the defects and deficiencies to the Chairman of the Housing Board through letter dated 01.06.1993, and the Housing Board failed to rectify the defects in spite of reminders. The complainant got the house examined by a registered valuer, who valued the repair cost at Rs.50,100/-. The complainant brought the fact to the notice of the Chairman of opposite party no.2 with request to pay the same along with compensation of Rs.30,000/- for want of infrastructural facility. So, according to the complainant, there was deficiency in service on the part of opposite party no.2, which is confirmed by the relevant extracts of the reports of the public undertaking committee dated 13.03.1991, report of the vigilance squad and representation to the Chief Minister.
4. Opposite party no.2-Housing Board entered appearance and filed written version. Opposite party no.1-State Government in the Urban and Housing Department was set ex parte. The Housing Board in the written version denied all the allegations advanced by the complainant in the complaint petition. It, however, admitted that the complainant is the allottee in respect of HIG House No.l14 at Chandrasekharpur, Bhubaneswar under self-financing scheme. It raised the question of maintainability of the complaint before the consumer forum and stated that the prayer of the complainant for direction to opposite party no.2 to refund Rs.25,000/- taken as excess beyond the maximum permissible cost of Rs.2,75,000/- with interest at the rate of 15% per annum up to the date of refund, to refund the illegal payment of Rs.47,487/- towards further escalation, to declare the agreement void ab initio, to award compensation of Rs.1,35,000/- towards interest for the delay of three years in giving delivery of possession, to pay compensation of Rs.50,100/- towards the cost of repair/rectification of defects/deficiencies, to pay compensation of Rs.30,000/- towards consolidated cost of infrastructural facilities and to compensate making payment of Rs.50,000/- for infrastructural expenses incurred and hardship and mental agony suffered by the complainant due to deficiency in service and unfair trade practice, and lastly to pay exemplary cost for the litigation are absolutely untenable, and with all these facts the complaint should not be entertained, specifically when the consumer fora has no jurisdiction to deal with the dispute regarding costing/pricing of houses constructed under the project.
5. Opposite party no.2 admits that the complainant applied for allotment of the house on 25.04.1989 by depositing Rs.25,000/- as EMI under HIG Housing Scheme, Chandrasekharpur. On consideration of his application, opposite party no.2 issued allotment letter in his favour indicating therein that the provisional cost of the house was Rs.2,50,000/-, which was subject to revision. Due to escalation of price relating to construction of the house, the provisional cost was revised to Rs.3,00,000/-. Due to increase in the provisional cost, instalments were rephased and the details thereof were also given. It was also indicated that in case of failure to deposit the instalments as per the rephased schedule, interest at the rate of 15% per annum was to be charged on the defaulted amount and the allotment was liable to be cancelled for repeated defaults. Final allotment of the house was made in favour of the complainant and the final cost was estimated and fixed at Rs.3,47,487/- as against the provisional cost of Rs.3,00,000/-. The reason for re-escalation of price and increase in final cost were intimated in the letter dated 01.02.1993 to the complainant for his information. It was also indicated therein that price revision was due to certain unavoidable circumstances and delay was beyond the control of opposite party no.2. It has been stated in the written version that due to continuous heavy rain during the year 1990-91, there was non-availability of bricks, frequent interruption in the construction work, increase of labour rate, etc., re-escalation and delay in construction took place. It has also been mentioned in the written version that due to gulf crisis and high inflationary material, cost of the building was enormously increased constraining opposite party no.2 to re-escalate the cost of the house. Apart from that, there are other factors, such as increased cost of fuel led to the increase in the carriage charges of construction materials to the work site. Water logging at the work site led to delay in excavation of the foundation and every such delay led to increase in the material cost as well as labour cost. In the written version itself, a chart has been incorporated showing the increase in the cost of materials at particular intervals. It has been further stated that due to such increase in the material cost, labour cost including the daily wages of the masons and for reasons beyond the control of opposite party no.2, final cost of the house was fixed at Rs.3,47,487/- under the HIG Self-financing Scheme. Accordingly, the Housing Board in its 170th meeting held on 08.10.1991 approved the final cost of the building under the scheme in question. It has also been stated that not only the cost of materials for civil construction, there was also hike in the price of materials relating to electrical and sanitary fittings, which was taken into consideration while fixing the final cost of the building. Opposite party no.2 has stated that at the beginning, the plinth area was fixed at 1,200 Sqft., but in order to make the plan of the building viable and feasible and for better accommodation, it was increased to 1,403 Sqft. It has been specifically stated in paragraph 12 of the written version that there were some defects requiring minor repair, which were pointed out by the complainant during inspection of the house and the same were attended to and removed in due time, and after such minor repair work, the house was handed over to the complainant on 22.06.1993 to his satisfaction, and handing over certificate (Annexure-4) explains the same. It is stated in the same paragraph that even after handing over of possession, opposite party no.2 in pursuance of letter dated 17.07.1993 attended to the defects and intimated under Annexure-E to the complainant that the defects pointed out had been removed. Some vague allegations made in the complaint that opposite party no.2 had forced the complainant to execute the agreement are totally denied and it has been stated that if the complainant did not choose to take the house, he was at liberty to withdraw from the scheme and withdraw himself from availing the house under the scheme. In the circumstances, it has been prayed by opposite party no.2 that the complaint, which is not at all maintainable and to entertain which the District Forum has no jurisdiction should be dismissed.
6. The learned District Forum, after hearing the parties, allowed the complaint by passing orders as already indicated hereinbefore, and both the parties have assailed the said order. During hearing of the appeals, Mr. S.Mishra, learned counsel appearing for the Housing Board argued vehemently raising the question of jurisdiction of the Consumer For a to entertain such complaints, as has been filed by the complainant. To that effect, he cited the decision in Delhi Development Authority v- Kamini Chopra, 1986-96 Consumer 1871(NS). In that case, the Honble National Forum, relying on an earlier decision of the said Commission in Delhi Development Authority v- A.N.Sehgal, decided on 30th October 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. Mr. Mishra argued that in view of the above pronouncement, the complaint of the complainant should not have been entertained by the District Forum. On the ground of maintainability, the appeal filed by the Housing Board should be allowed and the consumer complaint as well as the appeal filed by the complainant should be dismissed. He further argued that whatever defects the complainant had pointed out having got his house inspected by a registered valuer were removed and to that effect the Housing Board had intimated the complainant through its letter dated 01.11.1993, wherein it was specifically mentioned that the defects in the house, i.e., House No.114 at Chandrasekharpur, Bhubaneswar, Phase VIII pointed out by the allottee in his application dated 27.07.1993 had been rectified. He submitted that in the month of June, 1993, the house was delivered to the complainant and his authorized agent Dr. L.M.Satpathy received possession of the house in complete shape with all fittings and in good condition including civil, electrical and public health. Even thereafter, on the request of the complainant, the defects pointed out by him were rectified by the Housing Board. It was further contended by Mr. Mishra that the delay, as has been stated by the Housing Board in the written version, was due to unavoidable reasons, such as water logging resulting in delay in excavation of earth and construction foundation, non-availability of bricks due to incessant rain during 1990-91, etc. It has also been averred in the written version that there was delay in taking up sanitary works in the complex by the Public Health Department, which is not under the Housing Board and is a Government Department. To fortify his contention, Mr. Mishra relied on the decision 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.
7. We have heard learned counsel for the complainant. But he could not satisfy us on the point of deficiency on the part of the Housing Board. After going through the correspondences between the complainant and the Housing Board, we have no reason to disbelieve the fact that the Housing Board has all through taken whatever possible steps required for completion of the project including the house allotted to the complainant and has explained the situation to him. Even after taking over possession of the building complete in all respects, which would mean that without any defect in respect of civil, electrical, sanitary fittings, etc., when the complainant pointed out some defects and requested the Board to rectify the same, the Board has done the same and intimated to the complainant that all the defects pointed out by him had been rectified/removed.
8. It is the settled principle that the Consumer Fora cannot go into pricing dispute of the flat or house. Interest charged also includes the price of the house leading to escalation. Therefore, we have no hesitation to say that the District Forum has gone wrong in entering into the dispute regarding pricing, which appears to us to be the main grievance of the complainant in his complaint.
Here, it would not be out of place to note that the complainant was at the relevant time between 1990 and 1993 was serving under the Government of India in a very high post and was all along residing in Delhi, for which he had authorized one Dr. L.M.Satpathy to look after the construction of the house allotted to him by the Board. Excepting the price escalated from time to time and interest on the delayed payment of the escalated amount, which has not been objected to and has been paid by the complainant, there is no other grievance for claiming such high and huge amount of compensation, and nowhere any legitimate ground has been put forth for computation of the compensation.
9. In any view of the matter, the complaint filed by the complainant on 24.02.1994, after taking over possession of the house in question on 22.06.1993 in perfect condition, appears to us somewhat queer. In this connection, the Honble National Commission in the case of Sarthak Behura and another v- The Orissa State Housing Board and another, III(1993) CPJ 384 (NC), has held that after taking possession of the house, the complaint cannot be heard to say that there has been unreasonable delay in construction of the house.
10. After minutely examining the facts of the case and looking to the legal position enunciated by the Honble National Commission in the decisions referred to above, we allow the appeal filed by the Housing Board, i.e., C.D. Appeal No.149 of 2001, set aside the impugned order dated 29.12.2000 passed by the District Forum, Khurda at Bhubaneswar in C.D.Case No.26 of 1994 and direct dismissal of the said consumer complaint.
It goes without saying that in view of dismissal of the consumer complaint, the appeal filed by the complaint, i.e., C.D. Appeal No.264 of 2001, does not merit consideration.
Records received from the District Forum may be sent back forthwith.
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(Justice A.K. Samantaray) President ............................
(Subash Mahtab) Member .............................
(Basanti Devi) Member SCDRF, Orissa, Cuttack July ,2009/Nayak