CHANDIGARH HOUSING BOARD vs AVTAR SINGH

SINCE common issues arise for decision, this batch of 25 revision petitions is disposed of by this common order.

FOR deciding revision petitions the facts are being taken from R.P. No. 734/2004. Respondent No. 1/complainant was a member of respondent No. 2/opposite party No. 2 -Progressive Co-operative House Building Society, Chandigarh. Society had applied for land to the petitioner/opposite party No. 1 Housing Board of being distributed among its members for construction of the houses. In the year 1999, the petitioner came up with a new policy according to which the land was to be allotted to the societies only for construction of multi-stordeyed building. This policy was challenged by respondent No. 2 along with other Co-operative Housing Societies by filing C.W.P. No. 1454/1992 in the Punjab and Haryana High Court. The High Court passed an interim order dated 11.5.1992 in the following terms : "Learned Counsel for the petitioners contends that the rules provide for deposit of only 10% of the amount of the tentative price and the remaining 15% is to be deposited if plots/flats are allotted. In view of this, learned Counsel for the State-Union Territory, Chandigarh does not oppose the prayer of the petitioners for stay to the extent of deposit of 15% of the tentative price. The petitioners shall deposit 10% of the tentative price within the time extended by this Court vide order dated 30.5.1992. The petitioners undertake that if the writ petition is dismissed, they shall deposit the remaining amount with interest @ 18% per annum if they accept allotment of flats under the Scheme. The Chandigarh Administration shall also refund the amount deposited by the petitioners with interest at the same rate to those petitioners who are not interested in the allotment of flats."

Said writ petition was dismissed by the High Court by the order dated 18.12.1996. It was alleged that respondent No. 1 deposited amount of Rs. 12,200 being 10% of the tentative price on 1.6.1992 with respondent No. 2 Society who in turn deposited it along with the amounts of other members with the petitioner Housing Board. After the dismissal order dated 18.12.1996, an amount of Rs. 44,017 was deposited by respondent No. 1 with respondent No. 2 who in turn deposited the same with the petitioner. Amount of Rs. 44,017 comprised the sum of Rs. 24,200 as 15% of the balance amount and Rs. 19,817 as interest @ 18% p.a. on the amount of Rs. 24,200. It was stated that as respondent No. 1 was not interested in purchase of flat, in January 1999 he applied for refund of the deposited money with interest and his application was forwarded to the petitioner by respondent No. 2. Out of total deposited amount of Rs. 56,117, the petitioner conveyed permission for refund of Rs. 32,670 by the letter dated 24.7.1999 to respondent No. 2 Society. Amounts of Rs. 19,817 paid by way of interest and Rs. 3,630 being the amount equivalent to 10% of 25% of the earnest money of the tentative value, were not paid to respondent No. 1. Thus, seeking refund of these amounts and claiming certain other reliefs, the respondent No. 1 filed complaint before the District Forum which was contested by the petitioner by filing written version. Plea taken in written version was that amount of Rs. 3,630 being 10% of 25% of earnest money was forfeited as per the instructions of Finance Secretary, U.T., Chandigarh. In regard to the amount of interest it was alleged that on a representation made by the General Hospital and Allied Dispensaries Doctors Cooperative House Building Society the matter had been referred to the Finance Secretary, U.T., Chandigarh by the petitioner vide letter dated 11.12.1998. The decision received from the Finance Secretary, U.T. Chandigarh vide letter dated 21.7.1999 was not in accordance with the clarification sought by the petitioner Housing Board. Vide Memo No. 33/3/76-UTFI (4)/2000/2602 dated 9.3.2000, the Finance Secretary, U.T. Chandigarh finally decided that the interest paid by the Societies on earnest money deposited with the Board in pursuance of High Court order is not to be refunded if the Society seeks refund of the earnest money as a whole or in respect of any member as it is not a part of the earnest money. Refund of amount of interest was withheld pending the decision at the end of the Finance Secretary, U.T., Chandigarh. Liability to pay the amount claimed by respondent No. 1 was emphatically denied. By the order dated 7.5.2003 the District Forum while partly allowing the complaint directed the petitioner to refund the entire deposited amount of Rs. 56,117 with interest @ 8% p.a. from the date of respective deposits till payment after adjusting the amount of Rs. 32,670 already paid to respondent No. 1. Dissatisfied with this order the petitioner filed appeal which was partly allowed by the State Commission vide order dated 2.12.2003 modifying the order of District Forum to the extent that interest will be payable from the date of payment of Rs. 32,670 and not from dates of deposit of the amount of Rs. 56,117.

Before adverting to the submissions advanced on behalf of both the parties it will be profitable to refer to the letter dated 11.12.1998, Clauses 7 and 11 of the Memo dated 9.3.2000, Rule 8 of the Chandigarh Lease Hold of Sites and Building Rules, 1973 and Paras 8 and 11 of the Chandigarh Allotment of Land to Co-operative House Building Societies Scheme, 1991. Omitting immaterial portion, the letter dated 11.12.1998 sent by the Secretary of the petitioner Board to the Finance Secretary, U.T. Chandigarh reads thus : "Sub : Refund of Earnest Money. Sir, It is stated that the Board has been making refunds to the members of societies by deducting 10% of the revised density in terms of the Chandigarh Administration letter No. 30/11/FT131-93/5149 dated 9.6.1993. As per instructions issued vide your letter No. 5158-UTIF(4)/97/20685 dated 6.11.1997 the Board demanded balance 15% to complete 25% earnest money along with interest @ 18% p.a. for the period from 1.6.1992 to 18.12.1996 from the petitioner societies. Now some of the societies after paying the above amount of earnest money and interest have sought refund in respect of their certain members. The instructions of Chandigarh Admn. dated 9.6.1993 provide for refund of earnest money after forfeiting 10% of revised density but no guidelines are available with the Board. Whether it should also refund the interest paid by the members for the period 1.6.1992 to 18.12.1996 or not. You are requested to decide the matter and decision taken may kindly be conveyed at the earliest to decide such pending cases."

CLAUSES 7 and 11 of the aforesaid Memo issued by the Finance Secretary, U.T. Chandigarh to the Chief Executive Officer, Chandigarh Housing Board and others after considering the recommendations of the committee constituted and the guidelines given by Deputy Commissioner-cum-Estate Officer read thus : "7. Full refund of earnest money will henceforth be made to the societies/and its members without forfeiting 10% of the 25% earnest money deposited. 11. The interest paid by the societies on the earnest money deposited with the Board in pursuance of High Court''s judgment dated 18.12.1996 is not to be refunded if the Society seeks refund of earnest money as a whole or in respect of any member, as it is not part of the earnest money."

Rule 8 of the Chandigarh Lease Hold of Sites and Building Rules, 1973 provides as under : "8. Lease by allotment procedure for- (1) In case of allotment of site or building, the intending lessee shall make an application to the Estate Officer in Form "A". (2) No application under Sub-rule (1) shall be valid unless it is accompanied by 10 percent of the premium as earnest money in the prescribed mode of payment. (3) When 10% of the premium has been so tendered the Estate Officer shall, subject to such directions as may be issued by the Chief Administrator in this behalf, allot a site of the size applied for or a building of which particulars are given in the application and shall intimate by registered post the number, sector, approximate area, premium and the rent of the site or building allotted to the applicant. (4) The applicant shall unless he refuses to accept the allotment within 30 days of the date of the receipt of the allotment order, deposit within that period and in the prescribed mode of payment, further 15% of the premium. The remaining 75% of the premium shall be paid as provided in Rule 12. (5) If the applicant refuses to accept the allotment within the said period of 30 days, he will be entitled to the refund of the amount paid by him. The refusal shall be communicated to the Estate Officer by a registered letter (acknowledge-ment due). The refund shall be made by means of a cheque payable at the State Bank of India at Chandigarh and the applicant shall bear the collection charges for the same. (6) If the applicant fails to communicate his refusal to accept the allotment within 30 days and also fails to deposit 15 percent of the premium under Sub-rule (4), the Estate Officer may forfeit the whole or part of the earnest money."

Paras 8 and 11 of the aforesaid Scheme of 1991 run as under : "8. Refund of earnest money-The earnest money shall be refunded to the Society, if any Society cancels its demand before allotment of land. Earnest money shall also be refunded to un-accommodated Societies, if any. No interest shall, however, be payable on any amount which remained deposited with the Estate Officer under this Scheme.

Apart from the provisions of this Scheme, provisions of the Chandigarh Lease Hold of Sites and Building Rules, 1973 as amended from time-to-time shall be applicable to the land allotted under this Scheme."

CONTROVERSY between the parties centres around the refund of 10% of 25% of the earnest money and interest for delayed payment on the balance amount of 15% of the earnest money. Submission advanced by the learned Counsel of the petitioner Housing Board was that as respondent No. 1/complainants in this batch of revision petitions were not the party in CWP 1454/92 they cannot seek refund either of 10% of 25% of the earnest money or the interest paid pursuant to the High Court order; that respondent No. 1 otherwise also are not entitled to the refund of 10% of 25% of earnest money as per instructions contained in the letter dated 9.6.1993 nor is the petitioner Housing Board liable to make payment of the interest paid under Clause 11 of the Memo dated 9.3.2000 and Clause 7 of this Memo would apply to the prospective cases; that under Para 8 of the Scheme of 1991 the respondent No. 1/complainants are not entitled to any interest. It was pointed out that the controversy in these revisions is covered by the decision in R.P. Nos. 2567 and 2568 of 2003, decided on 14.7.2005 by this Commission. On the other hand, learned Counsel of the contesting respondents relying on Rule 8 of the Rules, 1973 supported the order of the State Commission. Aforementioned interim order dated 11.5.1992 permitted the writ petitioners to deposit remaining 15% of the tentative price with interest @ 18% p.a. if they accepted the allotment(s) under the scheme in the event of writ petition being dismissed; in case the writ petitioners were not interested in allotment, the deposited 10% amount was to be refunded with interest at the said rate by the petitioner Housing Board. Since 15% along with interest was deposited after the dismissal of writ petition after collecting from members it was immaterial whether respondent No. 1/complainants were/were not the party to said writ petition. From the letter dated 11.12.1998 and Memo dated 9.3.2000 extracted above, if may be seen that the issue of forfeiture of 10% of 25% of earnest money was under consideration of the Chandigarh Administration since 1998 and the final decision taken is incorporated in the said Memo. The petitioner Housing Board cannot take benefit of the delay on their part in finalizing the said issue to the disadvantage of respondent No. 1/complainants. Submissions advanced on their behalf about Clause No. 7 of the Memo being prospective, therefore, deserves to be repelled being without any merit. At the cost of repetition it may be mentioned that Clause 7 of the Memo permits full refund of the earnest money to the society and/or to its members. Instructions contained in the letter dated 9.6.1993 have no relevance.

COMING to interest issue, by virtue of Para 11 of the Scheme of 1991 the Rules of 1973 have been made applicable to the land allotted to the Societies. Neither Rules, 1973 nor Scheme, 1991 vest in the petitioner Housing Board the power to forfeit the interest paid. Moreover there seems to be no justification in forfeiting the interest amount paid on late deposit of 15% of earnest money when the entire amount of earnest money was decided to be paid to the Society and/or its members under the Memo dated 9.3.2000. Amount of interest paid by respondent No. 1/complainant will not fall in the category of interest referred to in Para No. 8 of the Scheme, 1991. Fora below had thus rightly made the order for refund of the interest amount.

WITH regard to submission of the matter being covered by the decision in aforesaid RP Nos. 2567/2003 and 2568/2003 it may be mentioned that these two revisions were not decided with reference to the Memo dated 9.3.2000. There is no illegality or jurisdictional error in the impugned orders which may call for interference in revisional jurisdiction under Section 21(b) of Consumer Protection Act, 1986.

Accordingly, aforementioned revision petitions are dismissed with costs of Rs. 3,500 to the each of the contesting respondent No. 1/complainants. Revision Petition dismissed.