CHANDIGARH HOUSING BOARD vs RAJESH JASPAL

THIS is an appeal filed against order dated 13.3.2003 passed by District Consumer Disputes Redressal Forum-II, U.T., Chandigarh [for short hereinafter referred to as the District Forum] in Complaint Case No. 468 of 2000.

THE District Forum has allowed the complaint and directed the appellant - Chandigarh Housing Board (for short hereinafter referred to as CHB) to refund the amount of Rs. 9,200/- and Rs. 31,170/- to the complainant with interest @ 9% per annum in the manner indicated in Para 18 of the impugned order in Sub-paras (a) to (d). THE O.Ps. were further directed to pay a sum of Rs. 500/- as costs of litigation. The respondent/complainant Shri Madan Jaspal was a member of respondent No. 2 - The Chandigarh Sector 10 Cooperative House Building Society Limited (for short hereinafter referred to as the Society), 1215, Sector 8C, Chandigarh. He participated in the Scheme floated by the appellant-CHB for Group Housing Societies as member of the respondent No. 2 - Society and deposited earnest money of 10% of the costs of land amounting to Rs. 9,200/- @ 750/- per sq. yard fixed by the CHB vide Receipt No. 157 dated 1.6.1992. The said amount was deposited by the respondent/complainant with the respondent No. 2 - Society for onward transmission and deposit with the appellant-CHB. Enrolment number allotted to the respondent/complainant was 43 dated 2.6.1974. An additional amount equal to 15% of the earnest money amounting to Rs. 31,170/- along with interest for delayed payment was deposited through bank draft dated 13.1.1998 by the respondent/complainant with the respondent No. 2 - Society for onward transmission and deposit with the CHB. It was alleged that the appellant - CHB vide letter dated 16.4.2000 issued under Endorsement No. HB/CAO/SO-III/20000/9948 informed the respondent No. 2 - Society that instead of allotment of plots, only multi-storeyed flats would be allotted to the members of the O.P. No. 2- Society. On receipt of this communication, the complainant/respondent No. 1 wrote a letter dated 12.7.2000 seeking the flat/plot at the original rate of Rs. 750/- per sq. yard or in alternative prayed for the refund of the deposited amount of Rs. 40,370/- with accrued interest @ 24% per annum. It was alleged that the CHB failed to allot any flat/plot to the complainant, hence the complaint was filed seeking the refund of the initial amount of deposit of Rs. 40,370/- and interest @ 24% per annum on the deposited amount i.e., Rs. 9,200/- from 1.6.1992 to 17.7.2000, which were worked out at Rs. 17,940/- and on Rs. 31,670/- for the period from 13.1.1998 to 17.7.2000 amounting to Rs. 18,702/-. The total interest which was worked out was of a sum of Rs. 36,642/-. A sum of Rs. 50,000/- was claimed as compensation for mental agony and a sum of Rs. 1 lac was claimed as incidental expenses on account of contribution of rental and other expenses. Rs. 5,500/- were claimed as litigation expenses and a sum of Rs. 5,000/- was claim as costs of the complaint. The total claimed of the complainant was to the tune of Rs. 2,37,512/-.

Notice of the complaint was served on the O.P. No. 2 - Society who did not appear to contest the case and was proceeded ex parte. O.P. No. 1 - CHB contested the complaint case and filed written statement wherein floating of the scheme of Chandigarh Administration as referred to in the complaint was admitted. It was, however, pleaded that in the absence of Chandigarh Administration, which was a necessary party, the complaint was not maintainable as being non-joinder of necessary parties. It was alleged that there was no privity of contract between the complainant and O.P. No. 1 - CHB. Reliance was placed on the judgment of the Hon''ble Punjab and Haryana High Court, Chandigarh reported in the case of Vayu Bharti Cooperative House Building Society v. Union of India, being Civil Writ Petition No. 1454 of 1992 holding that there could not be an estoppel of any nature against the State in framing, changing, withdrawing and modifying its policies according to the needs of time and that mere application for allotment of plot did not confer any right for allotment that that applicant only becomes eligible to be considered for allotment of plot.

IT was denied that 25% of the price of the plot was deposited by the complainant with the O.P. No. 2 - Society who further deposited the amount of the complainant along with other members, which were 211 in number with the CHB. These 211 members were both eligible and ineligible members. The O.P. No. 2 - Society did not indicate the amount of each individual member. The list of the names of the members showing their monthly income and category was supplied. The CHB informed the O.P. No. 2 - Society that the land was subject to revision in case any of its members was found to be ineligible by the screening committee who had not deposited at least 10% of the earnest money. IT was also averred that under the provisions of 1991 Scheme, the CHB had demanded applications from the eligible Cooperative Societies along with the applications of their individual members and necessary documents. Regarding the complainant, it was alleged that his name appeared in the list, which was screened as Madan Gopal and not Madan Jaspal. The CHB contended that it was prepared to refund all the amount of the complainant as soon as he made the request through an application to the CHB through O.P. No. 2 - Society of which he claimed to be the member.

THE parties led evidence in the shape of affidavits and documents. THE District Forum upheld the contention of the complainant and allowed the complainant and granted relief regarding the refund of the amount deposited by the complainant with interest @ 9% per annum, which was payable under various clauses mentioned in Sub-paras (a) to (d) of para 18 of the impugned order. The main contention raised by Mr. Jagdish Marwaha, Advocate, learned Counsel for the appellant-CHB is that the complainant was not entitled to get interest on the amount of the deposit made by him and the amount of interest was deducted and was not paid to the complainant. The amount of interest is worked out at Rs. 13,741/-. The allegation of deficiency in service on the part of CHB was categorically denied. In the next place, it was urged that the appellant-CHB is dealing with the O.P. No. 2 - Society and not with the complainant and there was no privity of contract between the complainant and the CHB. It was also pointed out that up to the year 2000, the complainant kept quiet and, suddenly, he started claiming refund of the amount. Reference was made to Clause 8 of the Scheme floated by the appellant-CHB. Regarding the controversy raised about the name of the complainant, Mr. Sanjay Judge, Advocate appearing for the respondent No. 1/complainant drew our attention to Annexure C-1 issued by the Chief Executive Officer, CHB on the subject "Allotment of the Dwelling Unit to be constructed by the Society on the land to be allotted by the Chandigarh Housing Board, on leasehold basis", the name mentioned is that of Madan Jaspal and particulars of enrolment issued is Sr. No. 43 and date of enrolment is mentioned as 2.6.1974. The receipt Annexure C-2 issued by the O.P. No. 2 - Society is also in the name of Shri Madan Jaspal. The receipt of deposit of a sum of Rs. 31,170/- (Annexure C-3) is also in the name of Shri Madan Jaspal and the same has been issued by the O.P. No. 2 - Society. Annexure C-6 is a letter of the complainant to the President, The Chand Sector 10 Coop. House Building Society Ltd. and he has mentioned his name as Madan Jaspal with reference to Serial No. 43 dated 2.6.1974 as his enrolment. The list of enrolment of the members of the O.P. No. 1-Society is Annexure O-3 showing that at Serial No. 43, the name of one Madan Gopal has been mentioned.

THE document and evidence referred to above and relied upon by the respondent No. 1/complainant clearly shows that in the list of Enrolment at Serial No. 43, he was the member mentioned and his name has wrongly been mentioned as Madan Gopal instead of Madan Jaspal. We find considerable merit in the submission of the learned Counsel for the respondent No. 1/complainant and the appellant cannot take undue advantage of the typographical error, which inadvertently crept in Serial No. 43 while mentioning the name of the appellant as Madan Gopal instead of Madan Jaspal.

THE reasons, which led the complainant to withdraw from the Scheme and ask for the refund of his amount is not of much consequence as the appellant has also not disputed the fact that the amount was to be refunded to the concerned person, which in the instant case is Sh. Madan Jaspal, as referred to above. Respondent No. 2 - Society had applied on behalf of its members for allotment of plots, which in turn had to communicate the same to the concerned members of the society yet for all practical purposes, the Society was dealing the cases for and on behalf of the members. We find not much of significance in the too technical objection raised by the appellant - CHB that the complainant could not directly ask for the refund of the amount deposited by him with the CHB though the same was deposited through the O.P. No. 2 - Society inasmuch as the Society has also been impleaded as O.P. No. 2 in the complaint case and it did not choose to appear and contest the complaint case. Though it was claimed by the appellant that the amount was liable to be refunded and in fact been refunded to the O.P. No. 2-Society for being refunded to the individual member i.e., the complainant yet it could not be proved by any credible evidence that the amounts deposited by the respondent No. 1/complainant had in fact been refunded to the O.P. No. 2 - Society. However, the complainant cannot be allowed to suffer as the liability to refund the amount is of the appellant - CHB as well as the O.P. No. 2 - Society. The District Forum has after referring to the material placed on record recorded a categorical finding that the amount deserve to be refunded to the complainant/respondent No. 1 and we find no valid reasons to hold that the said finding was contrary to the material placed on record. We uphold the finding was contrary to the material placed on record. We uphold the finding recorded by the District Forum, which according to us is based on the material placed on record. The liability to pay interest has been well considered by the District Forum and it has taken pains to bifurcate the liability for different parties as between the appellant-CHB as well as O.P. No. 2 - Society. The rate of interest allowed is 9% per annum, which also appears to be quite proper and justified.

Resultantly, we find that the appeal lacks merit and is dismissed with costs, which we quantify at Rs. 250/-. Let these directions be complied with within a period of two months from the date of receipt of certified copy of this order. Copies of this order be sent to the parties free of charge. Appeal dismissed.