COMMISSIONER, UTTAR PRADESH AVAS EVAM VIKAS PARISHAD vs BRIJESH KUMAR SRIVASTAVA

THIS appeal is directed against the judgment and order dated 19.2.2001 passed by District Consumer Forum, Rampur in Complaint Case No. 163 of 1994.

THE facts of the case as stated in the complaint are that the complainant Brijesh Kumar Srivastava of Rampur in response to the scheme of allotment of house under the Self Financing Scheme, deposited an amount of Rs. 20,000/- on 30.9.1988. THE registration booklet issued for the scheme provided that the cost of the house would be Rs. 2,20,000/- and the house was to be allotted within a period of three years, but the house was not completed within the time stipulated in the registration booklet and later on the cost of the house was increased to Rs. 3,10,000/- on 15.2.1994 the complainant was informed by the opposite parties that the entire amount against the cost of the house should be deposited by him within 10 days, otherwise the allotment made in his favour shall be cancelled. At the time of booking the house, an amount of Rs. 20,000/- was deposited by the complainant. On 30.9.1992 another amount of Rs. 58,000/- was deposited by him and the rest amount of Rs. 2,32,000/- was deposited on 28.2.1994. Inspite of the fact that the entire amount towards the cost including enhanced cost of the house had been deposited, the complainant was not given possession of the house allotted. Instead the opposite party vide their letter dated 8.3.1994 asked the complainant to deposit an amount of Rs. 27,522.25 as interest. A notice was again given by the opposite party to the complainant on 18.3.1994 that the amount of Rs. 29,139.75 be deposited against the interest, otherwise the allotment would stand cancelled. This amount was deposited by the complainant on 2.4.1994 under protest. THE complainant was not given any interest on the registration amount of Rs. 20,000/- deposited by him on 30.9.1988. He was entitled to interest on this amount from 30.9.1988 to 30.9.1993, which was the date of allotment. A number of letters were written to the opposite party but no relief was provided to the complainant. THE possession of the house was given to the complainant on 19.4.1994 and at that time the house was not properly finished and completed. Chick doors have not been provided in windows and doors. THEre was no electrical fittings and polish was not done on the doors and windows. THE road and the drain outside the house were also in semi-finished stage. THE cost which includes the cost of land comes to Rs. 1,37,223/- but the opposite party additionally charged a sum of Rs. 13,722.30 as lease rent. THE lease rent was not payable as the cost of land has already been charged. THE complainant was forced to deposit Rs. 24,236/- as interest and the amount was deposited under protest. THE opposite party is, therefore, liable to refund this amount with 18% per annum interest. THE house was to be allotted as per scheme of the opposite party within three years of registration but the actual allotment took place during the last quarter of the year 1993. THErefore, the interest was wrongly charged as the delay in construction of the house was because of the fault of the opposite party. THE cost of the house was intimated to be Rs. 2,20,000/- but actual amount charged from the complainant comes to Rs. 3,10,000/- and, therefore, the amount in excess paid by the complainant is Rs. 90,000/- and the opposite party is liable to refund this amount to the complainant. Since the house was to be allotted by the year 1991 but instead the physical possession was given in April, 1994, therefore, the complainant has suffered a loss of Rs. 1,000/- per month from 30.9.1991 till the date of possession. THE complainant, therefore, lodged a claim before the District Consumer Forum claiming as follows : (1) Refund of the amount of Rs. 13,722.30 wrongly charge as lease rent; (2) Refund of Rs. 24,236/- wrongly charged as interest along with interest at the rate of 18% per annum; (3) Compensation for mental torture of a sum of Rs. 1,00,000/-; (4) A direction was sought to be given to the opposite party to complete the incomplete house; (5) Financial loss occurred to the complainant at the rate of Rs. 1,000/- per month from 30.9.1991 to 19.4.1994; (6) Interest on the registration amount at the rate of 18% per annum was also prayed for from 30.9.1988 to 20.9.1993; (7) Excess amount paid in respect of the cost of the house which is Rs. 90,000/- to be refunded to the complainant; (8) Cost of Rs. 5,500/- was also prayed for.

In the written version before the learned District Forum, the opposite parties admitted the registration and the allotment of house to the complainant but at the same time it was stated that the cost of the house given in the registration booklet was tentative and was subject to increase. The opposite party admitted that the houses in the scheme could not be constructed within the stipulated period and there has been delay in completion of the scheme. After the registration amount was deposited in 1988, the first instalment towards the cost of the house was deposited by the complainant on 3.10.1992. Since the complainant did not deposit the remaining instalments in time, the interest charged from him was in accordance with the terms and conditions entered into between the two parties, and when this amount was not deposited, a notice was again sent to the complainant asking for interest amounting to Rs. 29,139.75 failing which the allotment was liable to be cancelled. Upon this the complainant deposited the amount of interest under protest. It was also mentioned that the defects which have been pointed out had been removed and the house has been duly completed.

It was further contended by the opposite party that the interest on the registration amount of Rs. 20,000/- deposited by the complainant was not payable under the Self Financing Scheme. The lease rent of 10% on the cost of land for a period of 90 years was rightly charged. All formalities in regard to the possession had been completed by the complainant and possession was handed over to him on 19.4.1994. The complainant prior to that had agreed to pay the enhanced price of the house. The amount of interest charged is because of the delayed payment of instalments by the complainant.

THE parties led evidence before the learned District Forum and the Forum partly decreed the claim of the complainant and awarded Rs. 10,000/- as compensation to the complainant. THE Forum also directed the opposite party to pay to the complainant interest on the registration amount of Rs. 20,000/- at the rate of 12% per annum. Rs. 1,000/- was also awarded as cost. Aggrieved of this order the opposite party, U.P. Housing Board has come in this appeal. We have heard the learned Counsels for the parties. The learned Counsel for the appellant has argued that the cost of the house indicated in the registration booklet was tentative and it had been made clear that the cost was subject to change. The complainant was informed on 1.2.1992 that the cost of the house now comes to Rs. 3,10,000/- and the complainant gave his consent for the allotment of the house on this condition. On receipt of the consent from the complainant, the complainant was required to pay an amount of Rs. 58,000/- per instalment in five quarters. It was also made clear that 18% per annum interest was to be charged if the instalments are not paid in time. The complainant had not paid the instalments in time. In the registration booklet it was made clear that interest on the registration amount of Rs. 20,000/- was not admissible. Clause 9.3 of the registration booklet clearly stipulates that if for indispensible reasons the construction of the house is delayed then the opposite party was not liable and no interest was to be paid on the deposited amount. Although the registration money had been paid in the year 1988, the complainant for the first time started paying instalments in the year 1992. On the other hand the learned Counsel for the respondent has argued that in the registration booklet it was clearly stated that under the Self Financing Scheme the houses were to be completed and allotted within a period of three years. The scheme was floated in the year 1988 and, therefore, the houses should have been ready for possession by the year 1991. Instead the houses were allotted in the last quarter of 1993 and physical possession was delivered only in 1994. Therefore, the complainant is entitled to 18% per annum interest on the above amount also.

A perusal of the evidence on the appeal file which are the copies of the papers which had been filed before the District Forum will go to show that the opposite party, U.P. Housing Board, had floated the scheme in the year 1988 and the houses were to be completed in about three years. Perusal of Annexures 1 to 6 enclosed with the memo of appeal goes to show that the scheme under which the allotment of the houses were to be made was under the Self Financing Scheme. The scheme of self financing is different from the normal scheme of registration of Housing Board. Under the Self Financing Scheme the acquired land is either developed or is liable to be ready for development and, therefore, the Board does not have to proceed in regard to acquisition of land and the related matters. The objective is to take up the construction right from the time of the receipt of the registration amount of first instalment, towards the cost of the house. A perusal of Annexure 1 will go to show that till 1991 substantial work was not carried out by the Board. It was only on 1st of February, 1992 that the complainant was informed that because of some unavoidable reasons the work in the scheme could not be executed within the stipulated period. By that time the cost of the house was increased to Rs. 3,10,000/-. There is no doubt that the complainant gave his consent before the allotment but at the same time the opposite party was negligent in its service for virtually not doing anything in regard to construction of house from the year 1988 till atleast 1991. The complainant naturally wanted the possession of the house within a period of three years from the date of registration and he could not avail of this opportunity within that period. In February, 1992 he was informed that he should give his consent for the enhanced cost. The delay is attributed to unavoidable reasons but the opposite party has failed to satisfy those unavoidable reasons. Annexure 3 of the memo of appeal which is letter dated 10.4.1992 reveals that the construction work was in progress and, therefore, it was only from 30.9.1992 that the instalments against the cost of house were made payable. Annexure 4 which is letter dated 29.1.1994 makes it clear that the allotment was done on 16.8.1993 in favour of the complainant and ultimately the possession was handed over in April, 1994. Therefore, there has been a delay of minimum three years for which the complainant has really suffered. The District Consumer Forum has awarded compensation of Rs. 10,000/- on this ground which we do not consider to be on the higher side at all. Next point is in regard to interest claimed by the complainant on the registration amount deposited by him. Since the claim was for a Self Financing Scheme and the opposite party was likely to complete the scheme within a period of 3 years and had failed to do so, and the scheme was completed in the last quarter of 1993, therefore, the complainant had to wait for almost five years. The District Consumer Forum has awarded interest at the rate of 12% per annum on this amount from 30.8.1988 to 20.9.1993. Because of the delay on the part of the opposite party in constructing the houses under Self Financing Scheme, award of interest is reasonable. Normally a period of six months is not taken into consideration under the Self Financing Scheme if the delay is for that much period, but in this case the delay is of more than three years and the delay has been admitted by the opposite parties. Therefore, the District Consumer Forum was quite justified in awarding interest. The next controversy is in regard to refund of interest paid by the complainant and charged by the Housing Board. On this point it is sufficient to say that the complainant was required to pay the first instalment of Rs. 58,000/- on 30.3.1992 which was paid in time, but the rest four instalments of Rs. 58,000/- each were not paid in time schedule framed by the opposite party and, therefore, the opposite party was justified in charging the interest.

THE next controversy is in regard to the refund of the excess amount paid by the complainant in terms of the cost of the house. THE learned District Forum had dealt with this matter meticulously citing case law on the subject. THE matter in regard to the pricing and cost of the house cannot be decided by the Consumer Fora. THErefore, the complainant is not entitled for any relief on this ground. THE last point is in regard to the refund of the lease rent paid by the complainant. We do not agree with the plea advanced by the complainant that the lease rent should not have been charged when the cost of the house had been paid. As a matter of fact as per terms of the scheme the land was to be transferred on lease-hold basis and not on free-hold basis. THErefore, the lease rent is separately charged. In the circumstances the lease rent charged was justified and the complainant is not entitled for its refund. In view of what has been discussed above, we find that the judgment and order passed by the District Consumer Forum are perfectly justified and do not need to be interfered with. THE appeal is liable to be dismissed and the judgment and order are liable to be confirmed. ORDER THE appeal is dismissed and the judgment and order of the learned District Forum are confirmed. THE appellant shall pay a sum of Rs. 2,000/- as cost of appeal to the respondent. Let compliance of the order be made within a period of two months from the date of this order. Let copy as per rules be made available to the parties. Appeal dismissed.