MAHESH SINGH SOLANKI vs Ghaziabad Development Authority

COMPLAINANT Sri Mahesh Singh Solanki is seeking relief against Ghaziabad Development Authority (GDA for short) through this complaint. His case is that the GDA came out with scheme No. 525 in June, 1988 offering 163 HIG triple storey self financed flats. The cost of the flats was indicated to be Rs. 1,78,000/- and possession was indicated to be given within 2 years of the date of the scheme namely 27 June, 1988. The complainant made an application for a flat in the scheme and after paying the registration and reservation amount of Rs. 36,000/- obtained reservation which the GDA communicated through its letter dated 6 December, 1988. The complainant says that he had to secure financial assistance from the Housing Development Finance Corporation (HDFC) on certain conditions. He says that the entire amount of Rs. 1,78,000/- was paid by him to the GDA by 30 October 1990 in accordance with the payment schedule provided by the GDA through its letter of 15 February 1989. In spite of the fact, says the complainant, that all the formalities had been completed by him, the GDA did not give the possession of the flat to him resulting in hardship to the complainant who was living in a rented house on payment of Rs. 2,000/- per month as rent and was making payment of monthly instalments of Rs. 1,259/- to the HDFC in repayment of loan.

THE complainant received a letter dated 15 June, 1991 from the GDA in the first week of July, 1991 in which he was asked to pay a sum of Rs. 2,36,889/- as the final price of flat No. N8 by 15 July, 1991 and was informed that in case the amount was not deposited he would be declared to be a defaulter and the allotment would be cancelled if he failed to deposit the enhanced amount within three months with interest @ 18% per annum. THE case of the complainant is that the houses were neither ready for possession as they suffered from major deficiencies out-lined in the complaint but there were also major architectural changes made in them by the GDA unilaterally. Aggrieved by it the allottees formed a welfare association called "Sanjai Nagar Welfare Association HIG ''M'' Block" and took up the matter with the officers of the GDA but in vain. In the meanwhile, when the complainant found that flat No. N-8 was on the third floor he requested the GDA to change it due to his sickness upon which the GDA changed the allotment from flat No. N-8 to N63 in the same scheme and category on the first floor after charging a sum of Rs. 200/- as transfer fee. The complainant proceeds to say that there were material discrepancies of a major character in this house as well but he had to take possession of Flat No. N-63 on 16 January, 1992 in view of the notice given by the GDA that failure to do so will result in cancellation of the allotment. He also says that he got in touch with the Joint Secretary of the GDA on 17 January, 1992 pointing out the various defects in the flat of which possession had been taken and the Joint Secretary informed the complainant as well as the Association that he had requested the Engineering Division to get the deficiencies removed by 30 January, 1992. However, in spite of the contact with the Joint Secretary no steps were taken to make the flat fit for occupation and habitation. The complainant had to serve a notice upon the GDA through letter dated 7, February, 1992 for getting the deficiencies removed within 15 days. He also contacted the Engineering Division of the GDA only to learn that due to dispute between the GDA and the Contractor, completion of basic services and the construction was uncertain. When he discussed the matter with the Joint Secretary of the GDA it was suggested that the complainant may opt for House No. B-46 of F-l(l) in the same Scheme No. 525 in lieu of House No. N-63. The complainant says that he agreed to accept one of these two houses on condition that he would pay the difference of the cost of the houses in instalments of 5 years duration and mentioned it in the letter sent by him on 17 February, 1992 to the GDA.

In reply to the letter of 17 February, 1992 the GDA informed the complainant through its letter of third March, 1992 that House No. 63 was being changed into House No. F-l(l), HIG duplex in the same scheme and that the complainant may hand over possession of House No. N-63 to the GDA and deposit the transfer fee of Rs. 200/-. The complainant was also informed that the payment schedule relating to House No. F-l(l) would be given only after the complainant had surrendered possession of House No. N-63 and deposited transfer fee of Rs. 200/-. The complainant did so but, according to his allegation, the payment schedule was not given to him by the GDA.

THE complainant says that he gave an undertaking through his letter dated 12 March, 1992 that he would make payment of all the instalments of the amount as per the payment schedule to be given by the GDA to him. Subsequently, he took possession of House No. F-l(l) on 23 March, 1992 in respect whereof a possession certificate dated 23 March, 1992 was issued by the GDA. THE complainant says that while taking possession of House No. F-l(l) various discrepancies of a serious nature were noticed in the house about which information was given by him to the officers of the GDA immediately after taking possession through letter dated 23 March, 1992 with a request that the defects be removed within 15 days. THE material deficiencies have been enumerated in paragraph 28 of the complaint. He followed the aforesaid letter with another letter dated 23 April, 1992 requesting for the removal of the deficiencies but the GDA had not responded to this letter. THE complainant has averred in the complaint that the GDA did not give any further payment schedule to him till the filing of the complaint presumably because they were aware of the fact that the house was not worth any thing beyond Rs. 1,78,000/-. THE complainant also says that in order to get the house rendered fit for habitation he had to get various necessary works done in it which had cost him a sum of Rs. 82,413.99 and that he had requested the GDA through his letter dated 15 September, 1992 to settle the matter about the aforesaid amount which he had to spend to make it habitable. THE complainant further says that the GDA had provided only space and not a complete toilet in the first floor of the house which it was to provide under the terms of Scheme No. 525-HIG ''B'' Duplex Code-159 and that the estimated cost to complete it was Rs. 22,500/-. The complainant also says that due to negligence of the GDA on account of the delay in giving possession of the house to him he had suffered loss of interest on the amount of Rs. 1,78,000/- from 30 October, 1990 to 23 March, 1991 (date of possession) to an extent of Rs. 45,390/-. The complainant has prayed that he be awarded the aforesaid amounts by way of compensation apart from a direction being issued to the GDA to remove the defects existing in the house and to fix the amount of instalments of the difference of cost payable by the complainant in a period of five years apart from award of Rs. 10,000/- as costs of proceedings. He also asks for award of interest at the rate of 18% per annum upon the amount due to him from the GDA from the date of the filing of the complaint till the payment of that amount.

THE complaint is accompanied by a number of documents. THE complainant had reiterated facts mentioned in the complaint in his rejoinder to the reply filed by the GDA and has supported it by his affidavit apart from appending a number of documents with the rejoinder. The GDA has filed a written statement. The main thrust of the stand of the GDA is that the time indicated by it for delivery of possession of the house was only approximate and no firm date had been given by it for the purpose; that the complainant himself went on making requests for being given different houses from time to time which contributed to the delay in the ultimate delivery of possession of a house to him on 23 March, 1991; that some delay was occasioned due to the dispute with the contractor who was to complete the building; that possession was given to the complainant of Flat No. F1(1) complete in all respects without any deficiency and that the complainant had himself given a certificate about it while taking possession and that there being no deficiency in service on the part of the GDA the complainant was not entitled to any of the reliefs sought by him. The GDA did not, however, choose to file any document or affidavit in support of the plea raised by it. The various documents which have been filed by the complainant establish unmistakably that possession was given to him of the house on March 23, 1992 of a category different from the one for which registration had been given to him. The fact that the initial amount indicated as cost of a HIG house in Scheme No. 525 was a sum of Rs. 1,78,000/- which came to be finally deposited by the complainant on 30.10.90 is not in dispute. It is also not in dispute that final costing and the schedules of instalments for the amount still payable in respect of House No. F-l(l), which is a house of duplex type, has, not yet been furnished by the GDA to the complainant.

THE grievance of the complainant about the poor quality of construction and the discrepancies in House No. F-l(l) made in paragraph 28 of the complaint have been met in paragraph 23 of the written statement by saying that the contents of paragraph 28 of the complaint are vehemently denied and that the complainant be put to strict proof as to how and in what manner material deficiencies had been mentioned when at the time of taking possession a certificate dated 23 March, 1992 contained in Annexure 26 (of the complaint) in respect of House No. F-1(1) was given by the complainant after making inspection.

THE complainant has placed on record the circumstances in which he was made to give the certificate (Annexure 26) as a pre-condition for being given possession of the house and has also indicated that the deficiencies found in the house were immediately reported to various officers of the GDA with copies of the letters given to them on 23 March, 1992 being filed as Annexures 8 and 9 to the rejoinder of the complainant by detailing them in paragraph 23 of the rejoinder affidavit. THEse letters contain endorsements showing that they have been received by the various officers on 23 March, 1992. Obviously, a contemporaneous complaint was made by the complainant in respect of the deficiencies which were found by him in House No. F-l(l) when he took possession thereof on 23 March, 1992. THE major deficiencies mentioned in these letters are these: "1. Window Panes, Glass Panes, G.I. Pipes, C.I. Pipes etc. has not fitted in the house. 2. Electrical wiring without conduits, improper wiring, no wiring and conduits in several portions of the house are noticed. 3. Doors & windows at many places are broken and several doors/windows are missing. 4. Main Gate of Steel is missing. 5. Inventory items viz., Sintex tank, wash basin, cistern and types etc. are not given."

Undoubtedly, these are defects, patent in nature, which were pointed out to the GDA contemporaneously with the taking of possession by the complainant. The letter of 23 March, 1992 was followed by another letter dated 20 April, 1992 by the complainant requiring the GDA to remove its defects. Annexure 28 to the complaint is a copy of this letter which makes a reference to the earlier letter dated 23 March, 1992 of which a copy is Annexure 27 to the complaint. The complainant had informed the GDA that if the defects were not rectified within 15 days of the receipt of the letter dated 23 March, 1992 he would have no option but to get the defects removed at the cost of the GDA. In the subsequent letter of 20 April, 1992 the complainant put the GDA to notice once again by saying that he had started the job of removal of deficiencies and if there was any objection the GDA may inform him and get the site inspected to settle the amount of compensation. A reference to both these letters is contended in paragraph 29 of the complaint and the only reply on behalf of the GDA in paragraph 24 of the written statement is that the contents of paragraph 29 of the complaint are frivolous and that false letters had been sent by the complainant only for the purpose of the case and that the GDA was not bound to reply to each and every baseless letter of the complainant. The recitals only disclose the indifference and attitude of arrogance on the part of the GDA in the matter.

The complainant spent a sum of Rs. 82,413.99/- to make the house worth living as mentioned in paragraph 31 of the complaint in reply to which it has been stated in paragraph 26 of the written statement that the cash memos/ bills submitted by the complainant were forged and that possession of the house was delivered to him with all the fixtures and fittings and in a good condition as was expected by the complainant and a certificate to that effect was signed by the complainant himself. This assertion has not been supported by any oath. Complainant has appended with the affidavit dated 19 January, 1994 not only the copies of the various cash memos/receipts but also affidavits of the Manager and the Proprietors of the firm from whom material was purchased by the complainant and through whom the work was got executed. Alongwith their affidavits, the Manager and the Proprietors have appended copies of the cash memo/receipt issued by their respective firms. All these have remained uncontroverted on behalf of the GDA. We have no reason to doubt the authenticity of the claim made by the complainant that he spent the aforesaid amount in making the house worth living. The GDA is bound to reimburse the complainant with the amount spent by him in this manner.

THE complainant has also claimed that he should be reimbursed for the loss of interest to the extent of Rs. 45,390/- at the rate of 18% per annum for the period of 17 months on a count of delayed possession causing undue harassment and mental agony and hardship due to the unjust inaction and negligence on the part of the GDA by not providing the house during the prescribed time limit in proper and finished condition. The interest has been claimed for the period between 30 October, 1990 by which date the amount of Rs. 1,78,000/- had been deposited by the complainant till 23 March, 1991 when possession of the House No. F-1(1) was given to him. Sri Ram Raj, appearing for the GDA, seems to be right when he says that the period of two years initially given out for delivery of possession was approximate in character and no firm date had been indicated by the GDA for delivery of possession of the house. It does appear that delay had been occasioned in completing the construction largely on account of the dispute between the contractor and the GDA. However, as far as an applicant for a house like the complainant is concerned such a dispute cannot be put forward as an excuse by the GDA to keep the applicant waiting endlessly for being given possession of the allotted house or some other house in lieu thereof while holding on to the amount obtained from the applicant by way of a deposit towards the price of the house. It is trite that in these days of acute housing shortage when a person responds to an attractive advertisement by a builder like the GDA for making available a residential house to him within a reasonable time and deposits substantial amount with the builder in the hope of getting a house in a liveable condition, he cannot be made to suffer mental agony and harassment indefinitely when the waiting period becomes too long for no fault on his part. The complainant can certainly claim compensation for mental agony and harassment in a situation of this nature which results from deficiency in service on the part of the builder by not providing the accommodation within a reasonable time. Award of interest upon the amount deposited by the applicant is one mode of assessing the quantum of compensation in such cases. Since the GDA itself charges interest at the rate of 18% per annum as penal interest on delayed payment of instalments, it should be made to pay interest at the same rate to the complainant. We, therefore/ feel inclined to accept the plea that compensation for mental agony and harassment suffered by the complainant in the present case should be provided to him by requiring the GDA to pay interest to the complainant for the period between 30 October, 1990 and 23 March, 1991 to the extent of Rs. 45,390/-.

COMING to the prayer in regard to the estimated cost to complete a toilet on the first floor of the house amounting to Rs. 22,500/- all that need be said is that Annexure 42 to the complaint, purporting to be an estimate in this respect, is nothing more than a bald recital in letter dated 12 July, 1992 of Jawahar Water Supply Company that "the cost for making this toilet including cost of sewer system, main holes, drainage W.C. and other fittings etc. alongwith labour charges will be Rs. 22,500/-." No details for working out the cost at this figure have been put forward nor is there anything about it in the affidavit of Sri Rakesh Gupta, Manager of M/s. Jawahar Water Supply Company filed alongwith the affidavit of the complainant supporting his rejoinder. Even in the affidavit filed alongwith his rejoinder the complainant has mentioned in paragraph 34 that the estimated cost to complete the toilet was Rs. 22,500/- and has referred to Annexure 42 to the complaint as being a copy of the estimate. In this state of evidence it is not possible to accept the plea that the complainant will have to incur an expenditure of Rs. 22,500/- to get the toilet completed. There is no other evidence on the basis of which any amount can be estimated and awarded to the complainant under this head. The claim can, therefore, not be allowed. The plea that the difference of cost payable by the complainant for House No. F-l(l) and the amount of Rs. 1,78,000/- deposited by him by 30.10.90 should be directed to be realised in a period of five years cannot be accepted. This is a matter in the discretion of the GDA which is expected to be exercised reasonably by it having regard to the circumstances of a particular case and taking into account the view point of an applicant like the complainant. The complainant has to take up this matter with the GDA directly and we have no doubt that the GDA will not adopt an unreasonable attitude in it. The complainant also prays for interest at the rate of 18% per annum on the amount deposited by him from the date of the filing of the complaint. In the circumstances of the present case when possession has already been delivered to the complainant on 23 March, 1992 and compensation by way of interest has been awarded on the amount between the dates of its deposits and the date of delivery of possession we find no justification for awarding interest pendent lite. We are, however, inclined to award costs of these proceedings to the complainant but only a sum of Rs. 2,000/- and not Rs. 10,000/- as claimed. We may add that the complainant has not placed any material on the record of these proceedings to assess the cost at Rs. 10,000/- and that the award of Rs. 2,000/- has been made by us in our judicial discretion having regard to the totality of the circumstances of the case.

THE complaint succeeds as aforesaid. THE amounts awarded to the complainant shall be payable by the GDA within six weeks failing which the entire amount due shall carry further interest @ 18% per annum from the due date of payment to the date of actual payment to the complainant.

LET copies of this order be made available to the parties or their learned Counsel as per rules. Complaint allowed.