B.H. TOLANI vs RAJASTHAN HOUSING BOARD

THIS is a complaint under Section 12 read with Section 17(a)(i) of the Consumer Protection Act, 1986 ("the Act" herein) filed by the complainant against the Rajasthan Housing Board and the Estate Manager, Rajasthan Housing Board ("the Board" hereinafter) for the various reliefs mentioned in para 14 of the complaint. The complaint is a lengthy document consisting of typed 12 pages.

THE [Board declared and circulated one scheme known as "General Registration Scheme, 1979" (hereinafter to be referred as "the Scheme"). It was stated in the Scheme that the houses to the needy persons are to be provided and the land price is shooting up and the concept of construction is not clear in the middle class persons. THE complainant submitted an application under the Scheme in middle income group A, (MIG ''A'') on 11.1.80 for the allotment of the house. He deposited a sum of Rs, 3,000/- by challan and deposited form No. 17791 for registration with the Board. THE complainant was registered for the allotment of the house in middle income group ''A'' on 27.9.1980. According to the Scheme 40% of the houses were reserved for the salaried persons. It is said that for the middle income group ''A'' the cost of the house determined was Rs. 42,000/- and the amount was to be deposited in equal instalments of Rs. 8,000/-. It is said that the complainant submitted an application that as his annual income has changed, his registration from middle income group ''A'' may be changed to middle income group ''B'' and, therefore, he deposited the balance of Rs. 1,600/- vide challan dated 14.6.1982. On 20.12.1983 the complainant''s name was registered in Middle Income Group ''B''. According to the complainant price that was fixed under clause 2.8 of the Scheme amounting to Rs. 42,000/- could only be increased by 10% that is by Rs. 4,200/- and, there- fore, the cost of the house so tar as the house of MIG ''B'' is concerned could be Rs. 46,200/-. It is said that the house which was to be allotted to MIG ''B'' should be of 10.50 x 18 meters that is 189 sq. mtrs. THE house to be allotted was to contain two bed rooms, one drawing room, one multi-purpose verandah, kitchen, bath and latrine and open land for constructing garage and also open land in front and back and inside. It has been alleged by the complainant that the Board discriminated between the complainant and other influential persons. THE Board demanded improper amount of Rs. 30,400/- informing him that the first instalment will be of Rs. 12,000/-, second instalment will be of Rs. 12,000 which are to be deposited within a month and third instalment of Rs. 6,400/- is to be deposited after six months otherwise the reservation and registration will be considered cancelled. THE complainant deposited first instalment with the Board on 19.7.1989.THE Board allotted house No. 91/57 vide letter dated 13.12.89 in which it was stated that the cost of the plot will be Rs. 29,484/- and the cost of the construction will be Rs. 1,09,666/-. In this way Rs. 1,39,150/- were demanded from the complainant. THE complainant alleged that various other amounts were demanded from him. THE complainant has produced allotment-cum-possession letter dated 13.12.1989 in respect of house No. 91/57 MIG ''B'' Group. THE date fixed for possession was 9.1.1990 and the amount was to be deposited on or before 10.2.1990. THE allotment was on hire purchase basis and monthly instalment payable was Rs. 1,500/- per month. THE amount demanded vide allotment-cum-possession letter was Rs. 34.399/-. THE grievance of the complainant is that the Board has enhanced the price unilaterally and in fact and it should not have and could not demand the a mount which it has demanded. In para 13 of the complaint, the complainant has stated the various acts of commission and omission of the Board with which the complainant is aggrieved. Mainly the grievances of the complainants are (1) that the Board could not vary the price fixed in the Scheme, (2) that the Board could not reduce the area of the land from 189 sq. mtrs. which is mentioned in the Scheme to 162 sq. mtrs., (3) that the Board also could not reduce the constructed area to that of one bed room, one spacious verandah, combining toilet and bathroom and reducing the space for garage as provided in the Scheme at the price of Rs. 42,000/-, (3) that the material for the construction of the house was of sub-standard so far as effective foundation, low bearing capacity, plaster, flooring, doors, windows, wood-work, sanitary fittings, electric fittings, (4) that the Board could not increase the declared price of Rs. 42.000/- to Rs. 1,09,000/- and (5) that formerly the instalment fixed was of Rs. 440/- per month which has been arbitrarily increased to Rs. 1500/- per month. He, therefore, filed the complaint before the State Commission on 9.1.1990. Various, documents were submitted by the complainant in support of the averments made in the complaint. THE complainant amended the complaint and the amended complaint was filed on 26.3.1990. THE opposite parties filed the version of the case on 26.4.1990 consisting the complaint. It was stated that the Scheme merely pertained to the allotment of the house in MIG ''B'' Group. It gave only an indication of the area of the house. THEre was no proposal as such. It was pleaded that the area of the house which was to be constructed for the allotment depended on the availability of the land. THE period is only indicated to show that efforts would be made for the allotment of the house within that period. According to the opposite parties no right accrued to the Registered persons on the basis of the registration Scheme of 1979. THE instalments made were also sought to be justified on the ground that the allotment was made on the hire purchase system and in the instalments so fixed interest has been included. It was submitted that allotment has been made to the complainant in accordance with the priority among the Middle Income Group ''B''. It was submitted that it was open to the opposite parties to increase the amount of seed money with the increase in the cost which could be adjusted inclusive of the interest with the cost of the house. It was submitted that the complainant has not deposited the second instalment in accordance with the letter dated 20.6.1989 and, therefore, it has jurisdiction to cancel the allotment. THE fact of using sub-standard material in the construction of the house was denied. It was submitted that inside and outside the house plaster, flooring, doors and windows, the work has been done in accordance with the fixed standard of the Public Works Department. Electric fitting was done by an approved contractor. It was submitted that the house allotted to the complainant was complete and the complainant was informed that on his furnishing the application and the documents within one week, possession will be handed over after necessary formalities. It was denied that there was any violation of the agreement arrived at between the complainant and the Board. A rejoinder was filed by the complainant reiterating the averments made in the amended complaint. In support of the complaint, the complainant filed his affidavit. On behalf of the opposite parties affidavit of Shri Nandlal Sharma OIC was filed. A counter affidavit of B.H. Tolani was also submitted Parties submitted written arguments. We have carefully gone through the complaint, reply thereto, rejoinder, affidavits submitted on behalf of the parties and the written arguments. The complainant has levelled the charge of unfair trade practice on the opposite parties, for, according to him publicity was given that the Board constructs and sell the houses on no profit, no loss basis and in the beginning the price of the house when he submitted the application was shown as Rs. 42,000/- which is based on ''unfair trade practice." "Unfair trade practice" has been defined in Sec. 2(1)(r) of the Act. According to which the expression unfair trade practice has the same meaning as in Sec. 36-A of the Monopolies and Restrictive Trade Practices Act, 1969 but shall not include unfair trade practice adopted by the owner of an undertaking to which part ''A'' of Chapter III of the Act of 1969 or by any person acting on behalf of or for benefit of such owner. What are unfair trade practices have been enumerated in Sec. 36-A of the M.R.T.P. Act. We have gone through Sec. 36-A of the M.R.T.P. Act. Fixing of the price of the house at Rs. 42,000/- cannot be characterised as unfair trade practice as submitted by the complainant. The grievances which can be inferred from the complaint filed by the complainant briefly put are: 1. that the fixing of price of MIG''B'' Group house under the Scheme is based on unfair trade practice. 2. that the price shown as Rs. 42.000/- was varied and the complainant is not bound to give the same as demanded from the complainant by the opposite parties. 3. that the opposite parties could not reduce the area of the land from 189 sq. mtrs which is mentioned in the Scheme to 162 sq. mtrs for the stipulated price of Rs. 42,000/- including the land price.

That the opposite parties could not also reduce the constructed area from what was provided in the Scheme at the price of Rs. 42,000/-.

THAT the Board could not fix monthly instalment of Rs. 1,500/- from the declared monthly instalment of Rs. 440/-. It is arbitrary exercise of power. That the sub-standard material in the construction of the house on the plot in respect of defective foundation, low bearing capacity, plaster, flooring, doors or window, wood-work, electricity fittings, sanitary fittings etc.

THAT the opposite parties are liable for the delay caused in allotting the house by violating assurance and declaration mentioned in the Scheme and so could not increase the price from Rs. 42,000/- to Rs. 1,09,666/-. 8.THAT the opposite parties have given different treatment to the allottees of the same Scheme same location and same type of house of MIG ''B'' Group. 4. We do not propose to deal with the questions raised by the learned Counsel for the complainant in the written arguments, for, law has been authoritatively laid down in U.P. Avas Evam Vikas Parishad (Housing and Development Board) v. Garima Shukla and Others (First Appeal No. 5/89 decided on July 27,1989 by the National Commission) reported in I (1991) CPJ 1 (NC). Respectfully following the aforesaid. judgment of U.P. Avas Evam Vikas Parishad''s case (supra) the first case decided by the State Commission was Kanhaiyalal Mathur v. Secretary Rajasthan Housing Board, Jaipur reported in RLT 90 Part III page 31 and thereafter several other cases were decided. Most of the points canvassed by the learned Counsel are covered by the judgment rendered by the State Commission in Kanhaiyalal Mathur''s case (supra). 5. It may be stated THAT the Rajasthan Housing Board Act, 1970 (Act No. 4 of 1970) ("Act of 1970" herein) was promulgated by the Rajasthan State Legislature to provide for measures to be taken to deal with and satisfy need of housing accommodation in the State of Rajasthan. By virtue of Sec. 4 of the Act of 1970 the State Govt. has been authorised for the purpose of the Act of 1970, by notification in the Official Gazette to establish the Rajasthan Housing Board (the Board) which is a body corporate having perpetual succession and a common seal with power to acquittor, hold and dispose of property both movable and immovable and to enter into contracts and may by its corporate name sue or be sued and do all things and acts necessary for the purpose of the Act of 1970. Sec. 26 of the Act of 1970 deals with powers and duties of the Board regarding housing schemes and any rule made thereunder from time to time. Sec. 53 confers power on the Board to make bye-laws not inconsistent with the Act which may be necessary or expedient for the purpose of carrying out its duties and functions under the Act. The Rajasthan Housing Board has framed Regulations which are called Rajasthan Housing Board (Disposal of Property Regulations), 1970 ("the Regulations"). These Regulations provide for: 1. Terms and conditions of disposal of property. 2. Procedure for disposal of property. 3. Hire purchase, tenancy and transfer of ownership. 6. As stated above Sec. 28 of the Act of 1970 provides for housing schemes. Sec. 35 of the Act of 1970 provides for transfer to the Board for the purpose of Housing Schemes land vested in a local authority. The Housing Board Disposal of Property Regulations, 1970 were framed which generally apply to the schemes in which the properties created therein are to be disposed of by way of sale of hire purchase and in particular to the following schemes: 1. Janta Income Group Housing Scheme 2. Low Income Group Housing Scheme 3. Middle Income Group Housing Scheme 4. High Income Group Housing Scheme 7. Terms and conditions of disposal of property are contained in Chapter II of the Regulations. Chapter III thereof provides the procedure for disposal of property. Chapter IV of the Regulations is with respect to the hire purchase, tenancy and transfer of ownership. It is apparent from the Act of 1970 and the Regulations THAT the Board is engaged in serving the public in the matter of providing housing by construction of houses on the land and allotment of plots, houses to the public and thus renders service to the persons who apply for allotment of the houses. Before we proceed further we may notice the relevant case law of the High Court of Judicature of Rajasthan bearing on the question involved in this complaint. in Jyoti Prakash v. Rajasthan Housing Board, 1979 WLN (UC) 101, it was held that the Registration schemes and the allotment schemes are distinguishable and no right of allotment of house is conferred on any applicants registered under the Registration scheme and they cannot challenge the scheme. It was also held in 1985 WLN (UC) 226 by a Division Bench of the Rajasthan High Court that the Board is competent to increase the price beyond ceiling in certain circumstances and one is, increase in the cost of construction. In S.B. Civil Writ Petition No. 1625/ 86 Deepchand v. Rajasthan Housing Board decided on 24.9.1986 the Housing Board Registration Scheme 1979 was considered. It was held that reservation is after allotment and registration and reservation cannot be equated. It is clear from the aforesaid decision that no right accrued to the complainant for the allotment of the house under the Scheme of 1979. The complainant in the first instance applied for the allotment of the house in Middle Income Group ''A'' on 27.9.1980.Thereafter when his salary increased, he restored to clause 3.3 of the scheme of 1979 and opted for Middle Income Group ''B'' and got it changed and deposited the balance amount on 14.6.82 and registration was done under MIG ''B'' on 20.12.1983. Provision for drawing lottery has been made in Clause 4.3 of the Scheme. A letter dated 13.12.1989 was issued to the complainant informing him that he has been allotted house No. 91/57 MIG ''B''. The cost mentioned is Rs. 1,04,150/- under the head ''A''. Under the head ''B'' other payable charges have been mentioned. Balance amount towards the house cost is Rs. l,14,240/- and amount deferred in 156 monthly instalments at 16% rate of interest is Rs. 98,251/-. It appears that the complainant did not deposit GRS and Seed money amounting to Rs. 18,400/-, The total amount payable is Rs. l8,400/-. The amount payable at the time of possession was Rs, 34,399/-. It may be stated that in para 13 of the complaint the complainant has wrongly mentioned house No. 91/75, for, the house that was allotted to him was 91/57 in MIG ''B''. The complainant did not comply with the letter dated 13.12.1989. Mode of payment mentioned in that letter is hire purchase and monthly payable instalment is Rs. 1500/-.

SEC. 28 of the Act of 1970 provides for Housing Scheme and the Regulations which were framed apply generally to the Scheme in which the properties created therein are to be disposed of by way of sale or hire purchase and amongst others MIG ''B'' housing scheme. Terms and conditions of disposal of property are contained in Chapter II of the Regulations. Chapter III thereof provides the procedure for disposal of property. Chapter IV of the Regulations is with respect to the hire purchase, tenancy and transfer of ownership. Regulation 6 is for fixation of price. Eligibility for allotment is dealt with by Regulation 7. Regulation 9 is with respect to manner of payment of disposal price. Regulation 16 is in respect of the registration and Regulation 24 is in respect of registration deposits etc. Regulation 27 is important. It reads as follows: "27. Allotment of houses:- (i) The Board shall reserve/allot a house to a registered applicant on the basis of availability of tenements/houses; (ii) Where the number of tenements/houses is more than the number of applicants, all persons will he reserved a house without any draw; (iii) Where the number of applicants is more and the number of tenements/houses is less reservation will be made by draw of lots. For this the Board will reserve tenements/houses according to the year-wise priority; (iv) Allotment of tenement/house number to a successful registered applicant shall be given by draw of lots; (v) Mode of payment as indicated in the registration form shall be treated as final."

REGULATION 29 is with respect to drew of lots. REGULATION 30 deals with entry of final list of allottees /hirer in a register. Execution of allotment is dealt with in REGULATION 35. REGULATION 37 provides for handing over of possession of property (sale). Though the complainant got himself registered under the scheme on 27.9.1980, subsequently with the change of category, his registration in MIG ''B'' was on 20.12.1983. No right accrued to the complainant merely by registration in his name under the Scheme of 1979, The complainant has not placed any material on record to show that the allotment which was made on hire purchase system to the complainant vide allotment-cum-possession letter dated 13.12.1989 was considerably delayed allotment because of the negligence on the part of the opposite parties or for that fault of the Board, there was short coming in rendering service by it as allotment-cum-possession letter was issued on 13.12.1989. Learned Counsel appearing for the complainant has not pointed out any mistake in the allotment letter dated 13.12.1989 to show that there is any mistake in calculating the value of the house and other payable charges. Nothing has also been stated in the written arguments that the amounts mentioned in the allotment letter were not in accordance with the Regulations. In view of the case law it is settled that the complainant has no right to insist that he should be allotted a house at the then prevailing cost when his name was registered under Scheme. Whatever was provided in the booklet in regard to the area of the house and the apartments were merely indications. This does not mean that a contract binding between the parties came into existence. The area of the house and the apartments to be constructed very much depend on the availability of the land meant for the purpose. Here we may pause to state that the house allotted to the complainant was on the hire purchase system and according to that the instalments were fixed beside the lease money which is payable to the Govt. through the medium of the opposite parties. The instalments of the base money included the interest payable thereon. The complainant is not entitled to claim that a house as per specification mentioned in the Scheme measuring 189 sq. mtrs. containing apartments mentioned in para 9 of the complaint should be allotted to him. We are of opinion that no valid exception can be taken to the allotment of house No. 91/57 allotted to the complainant vide allotment-cum-possession letter dated 13.12.1989. As the record stands there is nothing in it to show that there was any lapse on the part of the opposite parties in allotting the house to the complainant. In view of the forgoing discussions the complainant is not entitled to the reliefs mentioned in para 14-K, Kha, Ga of the complaint.

The complainant has claimed a sum of Rs. 1,00,000/- as compensation vide para 143 on account of the fact that the complainant was deprived of the basic necessity illegally on account of the influence of some other persons and thus was deprived of the amenities. All this was done deliberately by the opposite parties. A Redressal Forum can award compensation under Sec. 14(1)(d) of the Act. The complainant has not led any cogent and convincing evidence to substantiate his claim for compensation. The position is well settled that the compensation has to be assessed not arbitrarily but on well-recognised legal principles and that the compensation to be awarded must have a rational relation to the nature and extent of injury, inconvenience or physical and mental suffering caused to the complainant by the action or omission of the opposite party. Under Sec. 14(1)(d) of the Act, loss or injury for which compensation is to be adjudged and awarded should be found to have been caused by the negligence of the opposite party and that as a consequence thereof, loss or injury was suffered. Bearing in mind the well established principles, laid down by the National Commission in the various cases, and further that the complainant has no right to insist for the allotment of a particular house and that there was no delay as alleged by the complainant in allotting the house, we are firmly of the view that compensation as claimed cannot be awarded.

WE have already held above that there is no unfair trade practice on the part of the opposite parties. No error or illegality has been found in the allotment-cum-possession letter dated 13.12.1989 which was issued to the complainant by the opposite parties. By the allotment-cum-possession letter dated 13.12.1989 the opposite parties informed the complainant to submit all the documents alongwith D.D. for Rs. 34,339/- in favour of the Rajasthan Housing Board. Jaipur within one month of the issue of the letter and take possession from the Resident Engineer Division IV, Jaipur before 9.1.1990 and deposit the first instalment before 10.2.1990. In order to avoid further complications which may arise it is ordered: 1. that the opposite parties shall deliver the possession of House No. 91/57 MIG ''B'' Housing Scheme after completing it in all respects for which the complainant shall contact the concerned Engineer of opposite parties within one month from the date of the receipt of the order. 2. that the complainant will appear before the opposite parties within one month from the date of the receipt of the order and he shall comply with all the conditions mentioned in the allotment-cumpossession letter dated 13.12.1989. 3. that inspite of issue of the allotment-cumpossession letter dated 13.12.1989 the complainant did not take possession of House No. 91/57 after completing the formalities and filed the complaint before the State Commission on 9.1.1990, so he is [not entitled to any interest on the amount that is lying in deposit with the opposite parties. 4. that the complainant is not entitled to any compensation and his claim for compensation is rejected. 5. that in case of necessity of account of unforeseen events or any other exigency, the parties shall be at liberty to move the State Commission for any other direction/order which may be necessary in the circumstances of the case. Subject to the directions mentioned hereinabove the complaint shall stand dismissed. Parties shall bear their respective costs. The complaint is decided accordingly. Complaint dismissed.