B.K.SOGANI vs RAJASTHAN HOUSING BOARD

THIS is a complaint filed by Sh. B.K. Sogani against the Rajasthan Housing Board, Jaipur under Section 12 read with Section 17(a)(i) of the Consumer Protection Act, 1986 ("the Act" herein). The complainant applied for allotment of a house under General Registration Scheme of 19/9 ("the Scheme") which was published by the Opposite Party under the Rajasthan Housing Board (Disposal of Property) Regulations 1970 ("the Regulations"). The Opposite Party offered a house of standard size in HIG Group at an approximate price of Rs. 70,000/-. The complainant submitted Application No. 24556 for registration, which was accepted. He deposited Rs. 10,000/- for the allotment of the house registered in HIG Group. A lottery was drawn on 23-11-1985 and he was given priority No. 1 in the handicapped quota. Letter (Annexure 1) dated 26-12-1985 was issued to the complainant. The house was to be allotted on ''Hire Purchase'' system. The complainant received allotment-cum-possession letter dated 20-4-1988. He was asked to deposit Rs. 21,000/- amongst other items as interest on the Seed Money. The complainant has further alleged that he was entitled to receive the possession of the house within 6 months from the date of the declaration of the result of the lottery which was drawn on 23-11-1985. According to the complainant, the Opposite Party was supposed to construct the house within 6 months time and hand it over to the Complainant. The complainant made several visits to the office of the Opposite Party to find out the position in regard to the house allotted to him. He made several requests in writing. A letter dated 23-6-1986 has been produced enquiring from the Secretary of the Opposite Party as to when possession would be give and what further amount and further installments are to be paid. In that letter it was also written : "Sir, I have learnt that the above houses are still in the midst of construction. If that be the case and an inordinate delay is still likely, in that case I would humbly request that the skeleton or half-built house may be given to me on ''Cash-down'' price. I shall be able to construct the remaining portion of my own, but strictly according to your specification."

THEREAFTER a letter dated 25-9-86 was received from the Dy. Housing Commissioner (JC) I that the construction of House No. 7/176 allotted to the complainant is likely to be completed in December, 1986. THEREAFTER possession letter will be issued. A letter dated 30-12-87 was also received copy endorsed to the complainant, in which it was written that the house is still incomplete and possession has not been handed over to the allottee. It was also mentioned that it is really surprising that even after 2 years time the house has not been completed which is resulting in a financial loss to the Board as repayment to the HUDCO has already been started for the said scheme. The Resident Engineer, Div. IV, Rajasthan Housing Board, Jaipur was advised to complete the house within 15 days positively and inform the allottee to take possession of the house. The complainant submitted a representation dated 6-5-1988 to the Opposite Party in respect of the penalty imposed as interest on seed money. The complainant deposited a sum of Rs. 41,205/-on 17-5-88 under protest in pursuance of the allotment-cum-possession letter dated 20-4-88 after deducting art amount of Rs. 21,000/- for the interest on seed money. The complainant received a letter dated 17-5-88 in which it was written that instead of Rs. 62,205/- the figure should be read as Rs. 60,255/- only. The error had occurred due to an arithmetical mistake in calculation. The complainant deposited the remaining amount of Rs. 19,000/- (under protest to satisfy the demand of Rs. 60,205/-). In that letter it was mentioned that the complainant would be handed over possession of house on 19-6-1988. A reminder was given by way of another letter dated 20-5-88 to the opposite party. He also submitted an application dated 1-6-88 before the Appellate Committee in regard to the representation dated 6-5-88 for giving decision on the representative dated 6-5-88. The complainant was given possession of the house on 9-6-88. Eight monthly in statements as per allotment-cum-possession letter @ Rs. 2171/- p.m. w.e.f. 10-6-88 to 5-1-89 .were regularly paid by the complainant. THEREAFTER the complainant deposited a lum sum amount of Rs. 79,793/- on 8-8-1989 and made a request to refill the installments. No decision was communicated to the complainant. The opposite party conveyed vide letter dated 23-3-90 as to what transpired before the Appellate Committee on 15-8-90. The complainant was informed as under : (1) that'' the interest on seed money by way of penalty would be maintained as same as per rules of the Board. (2) that the cost of the land would be charged the same as charged from other successful candidates of the Lottery held on 23-11-85. (3) that the actual cost of construction of the house is only to be charged. The matter would be decided by the Finance & Costing Committee.

The complainant has alleged that he has suffered the following losses : "That the Claimant suffered the following losses : (i) Excessive interest charged on the Seed Money Rs. 21,000-00 (ii) Unwarranted escalated cost of land and construction during the period 1985-87, delayed till 1987 when it ought to have been completed by mid-1986 (approx.) Rs. 15,000-00 (iii) The escalated cost (in land and construction for the period 1987 to April-88 as indicated in following comparative chart marked as Annexure-11. Rs. 35,000-00 (iv) Money required for carrying out necessary repairs to the sub-standard house for making it habitable, i.e. removal of cracks, pathplastering, fixation of proper doors & windows etc. Rs. 20,000-00 (v) Pecuniary loss suffered due to inconvenience on account of late allotment & possession of the house Rs. 25,000-00 Total Rs. 1,16,000-00

THE case of the complainant is that the opposite party has acted negligently and the service suffered from deficiency. It was also submitted that the house was in a bad and sub-standard condition while it was handed over to the complainant. Floors, doors and plastering of the house were of bad and sub-standard quality. On account of inordinate delay in handing over possession of the house, he could not get his son admitted in School Sawai Mansingh as no housing accommodation could be provided by the opposite party at the relevant time. THE complainant had to get his son admitted in Mayo College, Ajmer, at a very heavy cost. He has submitted escalation. THE amount of escalated cost was recovered from the complainant on account of mistake and negligence of the Opposite Party. A comparative chart (Annexure 11) was submitted showing the expenditure of loss suffered by him. He, therefore, filed the complaint praying that the opposite party may be directed to pay Rs. 1,16,000/- with interest @ 18% p.a. from the date of the complaint and costs and any other order which may be deemed proper. The Opposite Party submitted version of the case on 4-2-91 refuting the allegations made in the complaint. It was stated that the complainant''s name was registered for the allotment of the house under the Scheme and he was allotted a house in HIG category in Malviya Nagar Scheme as a result of the lottery, which was drawn on 23-11-1985. It was stated that prior to the issuance of the letter (Annexure 2) dated 20-4-88 he was sent an intimation to deposit seed money. But he failed to deposit the amount in time and, therefore, the interest on the late deposit of seed money was rightly charged. Para 4 of the version of the case reads as follows : "That in respect of other contentions of the Complainant, it is stated that construction and completion of houses and delivery of their possession is bound to take some time due to constraints of funds. Non availability of land and other factors, and that the complainant was given the possession of the house on 9-6-88 immediately, on its availability. There was no question of any negligence on the part of the non-complainant in the delivery of possession of the house of the complainant."

It will also be pertinent to quote para 6 of the version of the case. "That the Respondent is a ''public undertaking'' formed under the Rajasthan Housing Board Act, 1970 with the sole purpose of providing housing facilities to the public of the State. It is therefore, its aim to provide proper and reasonably priced houses to the people within the reasonably possible time, but due to constraints, as discussed above, it takes sometime for the respondent to allot the houses. Revised rules pertaining to the registration and allotment of the houses were framed in 1981. It has been clearly mentioned in these rules that the applicant of a particular housing scheme will be allotted houses according to their priority numbers in various batches and since these batches will be allotted houses from time to time, according to their availability, the costing of the houses will be different. Therefore, in this particular case, the complainant was given possession in 1988 and therefore, the cost of the house as applicable at the time was charged from him."

The gist of the defense is that the interest on delayed payment of seed money and the cost of the allotted house and other charges were levied according to the prescribed rules and, therefore, the complainant is not entitled to any relief.

IN support of that affidavit of Mr. S.L. Verma, OIC of the case was submitted dated 4-2-91 Thereafter Sh. K.C. Sogani, Power of attorney holder of Sh. B.K. Sogani submitted counter affidavit dated 26-2-91. Alongwith that a copy of the letter marked as Annexure 13 dated 18-1-91 was submitted. The case was posted for arguments on 26-6-91 but nobody appeared on behalf of the parties. Thereafter some dates were given for dictation of orders. We have carefully considered the complaint, the version of the case, the documents submitted by the parties and the affidavits on record. By letter (Annexure 10) dated 23-3-90 the Appellate Committee vide its minutes as item No. 7 dated 12-5-89 took the decision, viz. : (1) that the interest on Seed Money by way of penalty would be maintained as same as per rules of the Board; (2) that the cost of the land would be charged the same as charged from other successful candidates of the lottery on 23-11-1985; and (3) that the actual cost of construction of the house is only to be charged. But since the Appellate Committee was not having any jurisdiction of the house, the same shall be decided by the Finance & Costing Committee.

IT may be stated that vide letter Annexure 9 dated 1-6-1988 addressed to Chairman, Appellate Committee, Rajasthan Housing Board, Jaipur, the complainant requested to consider the following : (1) that the increase in cost of land to the tune of Rs. 13,000/- and the alleged escalation in cost of construction to the tune of Rs. 22,000/- i.e. a total sum of Rs. 35,000/- as shown and explained in the comparative chart, is to be reduced forthwith from the total cost and a suitable adjustment be made in future monthly installments which fall due w.e.f. 10-6-1988. (2) that no interest be charged on seed money- hence the sum of Rs. 12,000/- be waived. The payment on this account has already been made by him under protest which may be refunded to him. (3) that any increase in the cost of house beyond the offer made in the booklet is untenable. Hence it should be reviewed and justice be afforded to him.

THE complainant after making reference to the various letters exchanged between the parties has claimed a sum of Rs. 1,16,000/- under various heads which have already been referred to herein above. THE points raised by the complainant in the complaint arose before us in several cases. THEy were considered in Kanhaiyalal Mathur v. Housing Board RLT 1990 Part III 31 and subsequent decisions. It was observed in Kanhaiyalal''s case (supra) as under : "Before we proceed further, it may be mentioned that in Jyoti Prakash v. THE Rajasthan Housing Board 1979 WIN (UC) 101 it has been 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 held in 1985 WLN (UC) 266 by a Division Bench of the Rajasthan High Court that the Board is competent to increase the price beyond ceiling the certain circumstances and one is, increase in the cost of construction. In S.B. Civil Writ Petition No. 1625/86 Deep Chand v. Rajasthan Housing Board, decided on 24-9-86 the Housing Board Registration Scheme, 1979 was considered. It was held that the reservation is after only allotment and registration and reservation cannot be equated. No right accrued to the complainant for the allotment of the house by Housing Board Scheme, July, September 1973."

It was affirmed in Kanhaiyalal Mathur v. R.H.B. 1991 CSMR CAS 118. THE National Commission observed : "As has been pointed out by the State Commission the allotment scheme has to be distinguished from the registration scheme and no right of allotment to a house is conferred on any applicant by mere registration under a registration scheme. Registration and reservation of allotment cannot be equated and reservation of accommodation follows allotment. Consequently the State Commission has rightly observed that no right accrued to the Complainant for the allotment of a house by the Housing Board on registration of the appellant in 1973 et. seq. in the various draws made under the registration allotment schemes introduced form time to the name of the appellant did not figure in the draws made for allotment. THEre was no contractual obligation on the part of the Board to allot arouse to the appellant."

THE Rajasthan High Court in D.B. Civil Writ Petition No. 451/1987 decided on 16-7-87 ruled as under : "A number of petitions of a similar nature have came up before this Court and this Court came to the conclusion that mere registration does not entitle the applicant to get the house allotted at a price mentioned in the booklet. THE allotment of the house has to be at the price when the house is allotted. It is well known that there is escalation of the prices and the price of the house which would have been in the year 1981 when the registration was held out cannot be the same in the year 1985-86. THE petitioner cannot be said to have been given any assurance that the house shall be allotted to him at a price of Rs. 1,11,900/- which was mentioned in the book-let in the year 1981. THE doctrine of promissory estoppel is hardly attracted in the present case as no assurance can be said to have been given that the house shall be allotted to him at a price of Rs. 1,11,900/-."

THE Rajasthan High Court in S.B. Civil Writ Petition No. 1621/86 decided on 24-9-86 Bhutan v. Rajasthan Housing Board has observed as under : "Mr. Sharma has submitted before me the Housing Board Registration Scheme, 1979. In that very clause, it has been mentioned that as far as practicable the rates shall not be changed after reservation. THE reservation is after only allotment, registration and reservation cannot be equated. This very rule provides that the rates can be revised looking to the increase in the costs. Mr. Sharma submits that it can be raised only upto 10 per cent. It is true that prices have not increased after reservation but after registration. In the registration estimated costs is given and the increasing cost cannot be overlooked. THEre is no case of hostile discrimination and the persons allotted have been treated equally and on the same amount. Even if there is a dispute about the increase rate, it can be agitated before the Competent Court of civil jurisdiction where the disputed question of facts can be determined, such as, what is the increase has rightly been assessed or not and, if assessed, whether it has rightly been applied or not, can only be considered by the Competent Court of Civil Jurisdiction as in such case the disputed questions of facts are involved."

It is true that the complainant has claimed in para 15 under various heads Rs. 1,16,000/- which cannot be refunded under Sec. 14(1) of the Act. In this case there is no material on record that while allotting the house to the complainant, the service rendered by the Board suffered from deficiency within the meaning of Sec. 2(1) of the Act. It is settled that there was no contractual obligation on the part of the Board to allot a house to the Complainant. Now we take up the question of compensation. It may be recalled that the complainant was declared successful at the time when the Lottery was drawn on 23-11-1985. After the drawing of the Lottery several letters were addressed from time to time. The Board issued the allotment-cum-possession letter Annexure 2 on 20-4-1988 though he had written letter dated 23-8-86 intimating that nearly 8 months have elapsed from the date of the drawing of the lottery but he was not offered the possession of the house allotted to him. In that letter it was also written that the above houses are still under construction and an inordinate delay is likely to be caused. He requested that the skeleton or half-built house may be given to him ''Cash-down'' price and so that he may be able to construct the remaining portion of his own. After the letter dated 23-8-86, a letter (Annexure 4) was written by the Dy. Housing Commissioner (JC) I to the complainant in reply to his letter dated 12-9-86 that the construction of house No. 7/176 allotted to him is likely to be completed by December, 1986. Thereafter the possession letter will be issued. There is another important letter (Annexure 5) dated 30-12-87 written by the Dy. Housing Commissioner (JC)I to the Resident Engineer, Rajasthan Housing Board, D. IV, Jaipur. It will be useful to excerpt the material contents of the letter : "Flat No. 7/176 in Malviya Nagar was allotted to Sh. B.K. Sogani on 26-12-85. It has come to my notice that the house is still in complete and possession has not been handed over to the allottee. It is really surprising that even after 2 years time you have not completed the house which is resulting a financial loss to the Board as repayment to the HUDCO has already been started for the said scheme. You are advised to complete the house within 15 days positively and inform the allottee to take possession of their house. This may kindly be treated as Most Urgent."

The allotment-cum-possession letter as stated above was issued on 24-8-1988 and thereafter letter Annexure 7 dated 17-5-88 was issued asking him that there is some calculation mistake and the total demand is of Rs. 60,205/- instead of Rs. 62,205/-. He was advised to deposit balance amount of Rs. 19,000/- before 19-5-88 i.e. 2 days after the date of the letter and take possession on 10-6-88. On these facts we have to consider whether there was any negligence on the part of the Housing Board in delivering the possession. We have gone through I (1992) CPJ 6 and I (1992) CPJ 64 (NC) in which the orders were rendered by the National Commission, New Delhi. The facts of these cases are of course distinguishable with these of the case on hand. What has been laid down is that if there is negligence in completing the house or handing over its possession compensation can be awarded to the aggrieved consumer under Section 14(1)(d) of the Act. It is clear from the letters referred to above that the Board by not completing the house, failed to perform its duty under the Rajasthan Housing Board Act. By letter dated 25-9-86, Dy. Housing Commissioner (JC) I informed the complainant that the construction of house No. 7/176 allotted to him is likely to be completed by December, 1986. Nothing has been placed on record as to why and what were the factors responsible for not completing the house earlier than December, 1986. In the letter dated 30-12-87 he wrote to the Resident Engineer, Rajasthan Housing Board, D. IV, Jaipur to complete the house within 15 days positively and inform the allottee to take possession of the house. The house was not completed. It was only by letter dated 20-4-88, the complainant was informed and allotment-cum-possession letter was issued. That letter was also subsequently amended so far amounts were concerned. From the letter dated 17-5-88 (Annexure 7) the negligence writs large in so far as the allotment of House No. 7/716 to the complainant is concerned. Having carefully considered the facts and circumstances of the case we consider that for the delayed allotment, the opposite party (Rajasthan Housing Board) should pay a sum of Rs. 10,000/- as compensation which is considered by us as just, fair and reasonable. The complainant is not entitled to the various amounts as claimed by him. The rest of the claim of the complainant is, therefore, rejected. From the observations made hereinabove it follows that the complaint succeeds in part and it is ordered that the complainant is entitled to Rs. 10,000/- as compensation which shall be paid by the Opposite Party to the complainant within one month from the date of the receipt of the order. If the Opposite Party fails to make payment as ordered, the complaint will be entitled to interest @ 18% p.a. from the date of the order until payment.

THE complaint is decided as indicated above. In the circumstances of the case we leave the parties to bear their own costs of the complaint. Complaint partly allowed.