KISHAN LAL AVASTHI vs CHAIRMAN, RAJASTHAN HOUSING BOARD

THIS is an appeal from the order, dated 17.3.1994 made by the District Forum, Jodhpur in appellant''s Complaint No. 709/1993. By the said order the Forum has dismissed appellant''s complaint requiring the respondent Housing Board to deliver to him the possession of the allotted house at the agreed price and as stated in the allotment letter dated 18.9.1990.

ON 20.12.1982 the appellant got himself registered with the respondent Housing Board for allotment of a residential house to him of Middle Income Group (M.I.G.) ''B'' Category in its General Registration Scheme, 1982 on Hire Purchase basis. He had duly deposited the registration fee along with his application. By their letter dated 11.5.1983 the respondent confirmed appellant''s registration under the said Scheme and still by their subsequent letter dated 11.7.1986 they further confirmed his priority No. at 318 as on 23.12.1985. However, on 9.12.1988 the respondents offered an option to the appellant that he might obtain the house on counter sale basis (Cash Basis) provided he deposited an earnest money of Rs. 12,000/-. But during the meanwhile the respondents had floated and notified their yet another Scheme called "Parijat Yojna (Scheme), 1987". This scheme was to be executed by the respondent Board at selected cities in three phases and option for registration under this Scheme was given to such persons also, who were already registered under other Schemes. The salient features of this Scheme, as have been mentioned in the brochure supplied to us and which are relevant to our purpose, were as under : "xxx xxx xxx."

The appellant opted for allotment of a house-skeleton of H.I.G. (III) Category at Jodhpur under this Scheme and his option letter was duly accepted by the respondent on 16.9.1989 at S. No. 1420.

BY their letter dated 18.9.1990 the respondents informed the appellant that a skeleton of a house "A(III)(SK)" Category had been reserved for him at Jodhpur under the aforesaid scheme at a cost of Rs. 1,60,000/- which was required to be paid in four instalments of Rs. 40,000/- each. Since the appellant had already paid Rs. 30,000/- towards registration fee of Rs. 4,600/- and Rs. 25,400/- as advance amount under the Scheme while exercising his option, he was required to deposit the balance amount of Rs. 10,000/- on 20.10.1990, Rs. 40,000/- on 20.4.1991, Rs. 40,000/- on 20.10.1991 and Rs. 40,000/- on 20.4.1992. It is an undisputed position that the appellant paid the aforementioned instalments as per schedule given in the letter, referred to above. On 3.9.1991 the respondent Board issued a certificate to the appellant to the following effect : "Office of the Dy. Housing Commissioner,. A-338, Shastri Nagar, Rajasthan Housing Board, Jodhpur Circle, Jodhpur No. DHC/JDC/90-91/1012 Date : 3.9.1991 CERTIFICATE This is certify that Shri Kishan Lal Avasthi s/o Shri Amrit Lal Avasthi has been reserved a house No. ____ of size ____in _______ scheme at Jodhpur on Out Rightable/Hire Purchase/SFS/Parijat, 89 III Qtr A Type Skeleton. That, the land on which the house is built is free from all encumbrances. That, the Board will have no objection to the mortgage of the tenement allotted to him the L.J.C. may sell the house, or mortgage with it and the Rajasthan Housing Board will have no objection to it. However, the Board should be informed of such action. That, possession will be given on receiving the disposal price amounting to Rs. 1,60,000/- approx. (including) Rs. 80,000/- already been disposited as Registration seed money amount. That, the first floor will be built by the allettee and not by the Rajasthan Housing Board. Sd/- Estate Manager Rajasthan Housing Board, Jodhpur The Reservation letter was issued by this office letter No. 2594 dt. 18.7.1990 Sd/- Estate Manager Rajasthan Housing Board Jodhpur."

THE grievance of the appellant was that although he had deposited with the respon-dents a total sum of Rs. 1,60,600/- (including Rs. 600/- as interest due for one month on the deposit of one instalment late) much before the expiry date of the IVth instalment, but the respondents did not deliver the possession of the allotted skeleton to him despite repeated requests, rather they unjustly, illegally and dishonestly started demanding a further sum of Rs. 2,66,295/- towards the cost of allotted skeleton. The version of the case, as per the respondents was that dispute between the parties related to costing principles, which cannot be gone into by the District Forum under the provision of the Act in a summary way. It has further been averred that as per terms and conditions between the parties the respondents were legally justified in claiming the cost of the house as on the date of delivery of possession thereof to the appellant. The District Forum, vide its order under appeal, held that since the dispute between the parties involved costing principles and pricing policy and such dispute can be adjudicated upon by a Civil Court in a regular way and not by a Consumer Forum within its limited summary jurisdiction, the appellant may approach the Civil Court for redressal of his grievance and grant of appropriate relief.

WE heard the learned Counsel for the parties in great detail and examined the merits of their respective versions quite minutely and critically.

IT is well settled by now by a series of decisions of this Commission, Hon''ble Rajasthan High Court and other High Courts, and Hon''ble National Commission that the Redressal Agencies under the C.P. Act, 1986 cannot adjudicate upon the costing principles and pricing policies, in the matters like the present one, within their limited summary jurisdiction under the Act. [See decisions of this Commission in Appeal Nos. 2421/1994 dated 30.7.2001, Appeal No. 365/1995 dated 27.3.2001, Appeal No. 2376/1996 of Hon''ble High Court reported in II (1992) CPJ 923, D.B. Civil Special Appeal No. 85/1993 dated 8.8.1995]. There is not and cannot be any dispute over the principles laid down in the above decisions. But the million-dollar question in the present appeal is whether the above principle has any application to the facts and circumstances of this case ? Or does it simply involve the question of the alleged deficiency in services on the part of the respondent, which question can, undisputedly, be considered and answered by the Fora and this Commission in the exercise of their limited jurisdiction. Let us find out the real controversy between the parties and the correct solution thereof in the case presently before us. The facts of the instant case, as have been narrated above in sufficient detail, unambiguously and unquestionably, attract the provisions of paragraph 6.3 of respondents'' Scheme called "Parijat Yojna" which has been reproduced above. What the appellant had applied for and proposed to purchase from the respondent and what the respondent had accepted and promised to set to him for Rs. 1,60,000/- was a "skeleton" of a house on a piece of land and not a completely built and constructed "dwelling unit" or "house". In Paragraph 6.3 of the Scheme the respondents had clarified that what would be sold by them to the prospective buyer under "Parijat III" would be a "skeleton" of a house, without doors, wiring, plasters on walls and flooring and that they would simply charge from the prospective buyer the value of the land and cost of the "skeleton" of the house thereupon. The subject-matter of the transaction of sale and purchase between the parties thus simply was a "skeleton" of a house and not a "house", as described in "Parijat I and II" of the Scheme. This position of the subject matter of the transaction of purchase and sale of immovable property in this case clearly distinguishes it from the fundamental and basic facts obtaining in the cases relied upon by the respondents in support of their version. That the parties had in fact intended to sell and purchase a "skeleton" of a house and the respondents had themselves offered to sell and did sell such subject-matter to the appellant for Rs. 1,60,000/- stands fully and unambiguously proved by the conduct and behaviour of the respondents besides representation made in writing by them to the appellant.

By their letter, dated 3.9.1991, reproduced above in extenso, the respondents had informed the appellant that in "Parijat 89 III" Qtr Type Skeleton had been reserved for sale to him. By Para 2 of the said letter the appellant was assured that "the land on which ''the house'' is built" was free from all encumbrance. The position was further clarified in Para 3 wherein it was clearly stated that "the Board will have no objection to the mortgage of ''the tenement'' allotted to him" and that "he may sell the ''house'' or mortgage it...". Having, thus spoken of the particulars and the specifications of the subject-matter, existing on the date of issue of letter on 3.9.1991 the delivery of the goods (the skeleton) was made subject to the payment of Rs. 1,60,000/- out of which Rs. 80,000/- were stated to have already been received by the respondents as Registration and Seed-money amounts. There is no dispute between the parties that, as stated earlier, the appellant had duly paid the balance amount of Rs. 80,000/- as per schedule in the allotment letter dated 18.9.1990.

ABOVE all, by Para 4, the appellant was specifically told that "the first floor will be built by the allottee and not by the Rajasthan Housing Board". Obviously the question of telling the appellant that it was upto him to build or not to build the first floor and not for the Board would have not simply arisen, had the "skeleton" of a house on the ground floor not been in existence at that time. The facts, as stated above, are fully established on the record of the District Forum. The existence of these facts necessarily leads us to hold that what the parties had agreed to purchase and sale, on outright sale basis, was a "skeleton" of a house for a total consideration of Rs. 1,60,000/-, that the entire sale consi-deration was payable by 20.4.1992 and the appellant had paid the same to the respondents before the expiry of that date, that although much before the arrival of that date the respondents was in a position to deliver the possession of the subject property to the appellant but, for the reasons best known to the respondents, the possession of the subject-skeleton was not delivered by them to him till date. It is really very surprising to note that the respondent has offered no reasonable explanation at all for delivering the possession of the skeleton to the appellant during the last about 10 years. We accordingly hold that the respondents had rendered deficient service to the appellant in the matter of delivery of the possession of the "skeleton" of the house, sold to him as back as in the year 1991.

IN view of the above discussion we hold that since the instant case did not involve any costing principle or pricing policy the ratio decidendi of the cases relied upon by the respondents does not stand attracted hereto. The District Forum materially erred in law and on facts in dismissing the complaint of the appellant. In the result the impugned order is set aside and the appeal as also the complaint of the appellant allowed against the respondents in the following manner : (1) The respondents shall deliver the possession of the subject-skeleton of the house to the appellant within a period of three months from the date of this order. Delivery of possession of the subject-property would not be deferred or delayed on the ground that the respondents had made any improvement in or over the subject-property or it was in possession of some other person - which has never been the case of the respondents so far. (2) Since the respondents have offered no explanation for not making the delivery of the possession of the subject-property to the appellant, despite his paying the entire sale-consideration to them before the final date on 20.4.1992, fixed for the purchase, the sum of Rs. 1,60,000/- shall carry interest @ 9% p.a. from 1.5.1992 till the date of delivery of actual and physical possession of the subject-property by the respondents to the appellant. (3) In the event of non-compliance of the directions contained in Paras 1 and 2 above, by the dates specified therein, the respondents shall be liable to pay interest on Rs. 1,60,000/- at the enhanced rate of 18% p.a. from 1.5.1992 till the date of delivery of actual and physical possession of the subject-property by them to the appellant. (4) The respondent shall pay a sum of Rs. 5,000/- as cost of litigation to the appellant. (5) All the sums payable and to be paid by the Rajasthan Housing Board in pursuance of this order shall be realised from the erring and delinquent officials/officers who shall be so identified by the Head of Deptt. by holding an enquiry in that behalf as early as possible. (6) Copy of this order shall be forwarded to the Secretary concerned to the State Govt. at Jaipur.

Appeal allowed.