Commissioner Karnataka Housing Board vs Basaiah S/O Shankatkaiah Hiremath

SINCE common question of facts and law are involved in the above noted petitions, as such these petitions are being disposed of by this common order.

PETITIONERS /opposite parties published an advertisement for allotment of site/residential house. Respondents/complainants applied for allotment of the site/residential house and paid the processing fee, earnest money as well as initial deposit. At the time of filing of the applications for allotment, respondents were informed that the rate was Rs.60/- per sq. ft. After allotment of the site, respondents paid various amounts by way of instalments. Later on, petitioners informed the respondents that rate of the site has been changed to Rs.80/- per sq. ft. This act on the part of the petitioners in increasing the rate of site is illegal. Accordingly, respondents prayed for refund of the excess amount and compensation as well as cost. Petitioners in their written statement have taken the plea that respondents were allotted the site pursuant to their application for allotment. In the intimation pertaining the said allotment, respondents were also intimated that the price for the site was Rs.80/- per sq.ft. and respondents paid the said price for the site in accordance with communications dated 30.10.2008 and 4.12.2008 and the site in question were thus allotted to the respondents. One year after having paid the price of the site @ Rs.80/- per sq. ft., respondents filed consumer complaints before the District Consumer Disputes Redressal Forum, Gadag (for short, ''District Forum '').

DISTRICT Forum, vide its order dated 2.9.2010 in complaint cases No.450 and 457/2009 and order dated 28.1.2010, in complaint case No.396/2009, allowed the complaints and directed the petitioners that the price of the site allotted to the respondents was @ Rs.60/- per sq. ft. Therefore, Petitioners shall refund the excess amount with interest @ 10% p.a.

BEING aggrieved by the order of the District Forum, petitioners filed appeals before the Karnataka State Consumer Disputes Redressal Commission, Bangalore (for short, ''State Commission ''). The State Commission, vide its impugned order dated 2.9.2010, passed (in Appeal No.3467 and 3468 of 2010) and order dated 12.4.2011 passed (in Appeal No.1474 of 2010) dismissed all the appeals. Hence, these revision petitions.

NOTICE of above note revision petitions was issued to all the respondents. However, counsel for respondents (in R.P.No.187 of 2011) has appeared, whereas none appeared on behalf of respondents (in R.Ps. No.188 and 2857 of 2011) in spite of service by Regd. AD post. Accordingly, respondents in these petitions were proceeded ex parte, vide order dated 20.2.2013 passed by this Commission.

WE have heard the learned counsel for the petitioners as well as counsel for respondents (in R.P. No.187 of 2011). It has been contended by learned counsel for the petitioners that price revision from Rs.60/- per sq. ft. to Rs.80/- per sq. ft. was done in accordance with Karnataka Housing Board Regulation and the same is binding on the respondents. In any event, respondents were never promised that they would be given sites at the rate of Rs.60/- per sq. ft. As such, both the fora below have grossly erred in coming to the conclusion that respondents had paid all their instalments prior to the price revision by the Petitioner-Board.

ON the other hand, it has been argued by learned counsel for the respondents that at the time of filing of the application for allotment, the respondents were informed that the rate was Rs.60/- per sq. ft. Accordingly respondents have paid various amounts by way of instalments. Later on, petitioners informed them that the rate of the site has been changed to Rs.80/- per sq. ft. This act on the part of petitioners in increasing the price, after allotment of the site is illegal.

IN Complaint Case No.450 and 457 of 2009, the District Forum held; "But here the question is whether the respondents have distributed/allotted sites to all consumers who have sought sites under the same notification and have filed applications at the same time at one price? Or we have to consider as to whether they have right to charge higher rate as per law under the Board Rules. Here firstly in the letter written by the 1st respondent to the 2nd respondent on 23.10.2008 it is started that the price of sites intended to be purchased by consumers like complainants is Rs.80/- per Sq. Ft. and the same is in force from 1.10.2008. But here the complainants have filed application to purchase sites at Rs.60/- per Sq. Ft. before that date and the sites have to be allotted to these complainants at that rate only. But here, the respondents have received amount from the complainants at the rate of Rs.80/- per Sq. Ft. Even Shivaleela Sullad who had filed application alongwith the complainant had been asked to pay at Rs.80/- per Sq. Ft. and when she filed complaint No.49/2009 before the Gadag District Consumer Forum, respondents have agreed to allot the site to her at Rs.60/-. From this it is clear that the conduct of the respondents is not in accordance with the rules of the Board and it also clear that in fixing the price as they deem fit and without discretion they are guiltiest of improper business conduct and of deficiency in service. For this reason, while accepting the decisions of National Commission cited by the advocate for respondents, and without questioning the power of respondents in fixing the price, we are of the opinion that collecting different rates from consumers who have filed applications at similar period, amounts to improper business conduct. Hence, while answering the 1st Issue in the affirmative, we hold that the excess amount at Rs.20/- per Sq. Ft. collected from the complainants should be calculated and interest at the rate 10% on the same should be given from the date of collecting excess money and the same should be refunded to the complainants. Further by way of warning that such improper business conduct should not be repeated to other consumers and for not repeating deficiency of service to others, the respondents should pay to each of the complainants a sum of Rs.5,000/- as Special Compensation also pay a total of Rs.2,000/- towards court costs and accordingly while answering Issue No.2 partly in the affirmative it is ordered as under; Complaints No.450/2009 and 457/2009 these two complaints have been allowed in part against Respondents 1 and 2. The respondents 1 and 2 shall within one month from today, after considering that the price of sites allotted to the complainants in these two complaints as Rs.60/- per Sq. Ft., refund to the complainants the excess amount collected by them alongwith 10% interest from the date of receipt of the amount. Further to each of the complainants a sum of Rs.5,000/- shall be paid as special compensation and for mental agony, a sum of Rs.2,000/- shall also be paid totally towards court costs. "

The State Commission vide impugned order (passed in Appeals No.3467 and 3468 of 2010) has observed as under; "After considering the averments of the complaints and the affidavit, DF allowed the complaints of the complainants in part. Record indicates that in case the society or the housing board intended to raise/hike the sital value, prior intimation is to be given to the members. Once the value of the site is fixed at Rs.60/- sq. feet without notice, the appellants/OPs are not entitled to claim the value of the site at Rs.80/- sq. feet. The impugned order under challenge also discloses that sites were allotted to some of the members at Rs.60/- sq. feet whereas in these 2 cases the appellant/OPs have collected excess amount of Rs.20/- per sq. feet which is unfair. Since the appellants/OPs is a board do not expected to collect more amount from their members. Sites allotted at lesser price for the other members amounts to discrimination. Therefore the DF is right in allowing the complaints of the complainants in part. "

RESPONDENTS in para no.2 of their complaint have made the following averments '' "2. The KHB has made the publication of an advertisement for the allotment of the sites/residential houses by their notification No.KHB/Allotment/201c/CS/2001-2002 DATED 29.8.01. Accordingly the complainants have applied in the month of August, 2008 for the allotment of the sites under the said scheme and paid the processing fee, EMBD. Initial deposit as per the notification and regulations of the KHB. The complainants have also claimed reservation of the sites under various categories which are classified and fixed quota for the allotment by the KHB. The price of the said sites was fixed at Rs.60/- per sq. feet at the time of the accepting the application of the complainants and other aspirants. "

IN response to the above averments, petitioners in their written statement states as under; "2. The contents of the para 1 and 3 of the complaint is partly true and in respect of date of application and application number is not disputed by this Respondent. It is false to state that the price of the said sites were fixed at Rs.60/- per sq. ft. at the time of the accepting the application of the complainants and other aspirants. "

Thus, as per averments made in para -2 of the complaint, rate of the site was fixed at Rs.60/- per sq. feet at the time of acceptance of the application. In its written statement petitioners have nowhere stated that the rate of the site was increased to Rs.80/- per sq. ft.

HOWEVER , counsel for petitioners has contended during the course of arguments that respondents have paid the agreed rate of Rs.80/- per sq. ft. and when they themselves had paid the amount @ Rs.80/- per sq. ft., then question of arbitrariness and discrimination does not arise.

THERE is nothing on record to show that respondents have ever agreed to the rate of Rs.80/- per sq. ft. This rate was increased after allotment of the site to the respondents and both the fora below have given clear findings of fact on this point. Present revision petitions have been filed under Section 21(b) of the Consumer Protection Act, 1986 (for short, ''Act ''). It is well settled that the powers of this Commission as a Revisional Court are very limited and have to be exercised only, if there is some prima facie jurisdictional error in the impugned order.

HON ''ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed ; "Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora. "

THUS , no jurisdiction or legal error has been shown to us to call for interference in the exercise of power under section 21 (b) of the Act, since, two fora below have given cogent reasons in their orders, which does not call for any interference nor they suffer from any infirmity or revisional exercise of jurisdiction. In our opinion, the present petitions are nothing but a gross abuse of the process of law and the same are meritless and have no legal basis, which are required to be dismissed with costs.

ACCORDINGLY , we dismiss the present petitions with cost of Rs.10.000/- (Rupees Ten Thousand only) in each case. Cost be deposited by the petitioners by way of demand draft in the name of respondents in each case within four weeks.

IN case, petitioners fail to deposit the aforesaid cost within the prescribed period, then they shall also be liable to pay interest @ 9% p.a., till realization. List for compliance on 13.9.2013.