MANOJ KUMAR ADHIKARY vs COMMISSIONER, ASSAM STATE HOUSING BOARD, GUWAHATI

ALTOGETHER 16 persons are before us as complainants in 3 complaint petitions being C.P. No. 4 of 1991, C.P. No. 6 of 1991 and C.P. No. 10 of 1991. The matter in issue in all the petitions are similar in nature and the relief asked for is against the same person/ authority, the Assam State Housing Board, a statutory body established by the Assam State Housing Board Act 1972.

IN C.P. No. 4/91 the case, of the 4 original complainants/petitioners in brief is that in pursuance to the Board inviting applications from intending buyers for allotment of plots of land for dwelling houses under the Land Acquisition and Development Scheme at Madgharia, Mouza Beltola, District Kamrup, Assam, they applied for the same in prescribed'' application form as per Annexure-1. IN January, 1991 the Board announced the names of the allottees category wise and a total of 134 applicants were selected as allottees of whom 23 were in the Economically Weaker Section (EWS), 27 in the Low INcome Group(LIG), 20 in the Middle INcome Group (MIG) and 64 in the High INcome Group (HIG). That although at the time of filing the applications the petitioners were given to understand verbally that the cost per Katha of the developed land would be around Rs. 45,000/- to Rs. 50,000/- only, the price of land charged in the allotment letter is at the rate of about Rs. 75,000/- to Rs. 85,000/- per Katha (inclusive of interest on instalments), which is abnormally high compared to the prevailing price varying from Rs. 30,000/- and Rs.35,000/- in the scheme area at Madgharia. That material changes were effected in the conditions, so much so that conditions non-existent in the application form were unilaterally included in the list of conditions governing allotment (Annexure-2). IN particular, the complainants felt aggrieved with condition numbers 6,8,9(ii) and 9(iv) of the allotment letter. The further grievance of the petitioners is that the allottees are offered an area of land which is less than the norm of 1 and 1/2 Katha required for Housing plot in the Guwahati City laid down by the Gauhati Municipal Corporation and the Gauhati Development Authority. It may be stated here that there is no specific averment of the petitioners as to what category they belong to, but from their Annexure-2 it appears that these 4 petitioners belong to H.I.G. category. IN spite of the petitioners lodging protest note requesting review of the entire costing and payment procedure, the Board failed to respond and hence the complaint. 7 more complainants were impleaded in this case out of which 3 belong to HIG, 2 belong to MIG and 2 belong to LIG. Out of the 4 petitioners in C.P. No. 6/91 3 belong to LIG and 1 belong to EWS. The sole petitioner in C.P. No. 10/91 belong to LIG. The grievance of the complainants in these two cases is identical in nature to that of the first complaint. That the opposite party in their affidavit-in-opposition filed on 18.7.91 besides raising preliminary question of maintainability of the complaint on the ground of jurisdiction states that it is not necessary to mention the price of each plot of land when the applications were called for, from the intending buyers, and that in non-mentioning of the price the Board did not kept itself at a advantageous position, and that this constituted an unfair labour practice. The opposite party further goes on to state that additional terms and conditions which were felt to be necessary to be incorporated were incorporated in the allotment letters in the interest of the allottees themselves. The opposite party denies that the applicants were given to understand verbally that the cost per katha of developed land would be around Rs. 45,000/- to Rs. 50,000/-. The opposite party in their affidavit-in-opposition has given a statement of the total expenses incurred for purchase and development of the land in the following matter: (a) Earth filling Rs. 43,46,850.00 (b) Cost incurred for construction of road Rs. 18,03,088.00 (c) Cost of construction of pacca drain Rs. 17,00,000.00 (d) Cost of construction of pacca boundary wall Rs. 7,16,286.00 (e) Cost of land Rs. 16,37,179.00 Total Rs. 1,02,03,503.00

It was further stated in the affidavit-in-opposition that in the instant case the opposite party has charged an administrative charge of Rs. 15% on the said sum of Rs. 1,02,03,503.00 and the administrative charge comes to Rs. 12,84,949.00 and if the said administrative charge is added the total cost of the land comes to Rs. 1,14,88,452.00. The opposite party denies that the area of each allotted plot does not conform to Municipal Byelaws. The opposite party denies that the difference in the number of instalments in payment of- the price for different categories is discriminatory as monthly instalments have been fixed taking into consideration the income of each group.

It is pertinent to mention here that as the dispute is regarding price of the allotted plots, and two sets of accounts have been furnished by the contending parties, this Commission after hearing the parties felt that a qualified Chartered Accountant and an Architect may examine the accounts and give their opinion for assistance of the Commission to arrive at a decision. Accordingly an Enquiry Committee consisting of a qualified Chartered Accountant, an Architect and a .retired Chief Engineer of the State P.W.D. was constituted as per order of this Commission. The Enquiry Committee has submitted its report to which we shall refer later. While admitting the complaints, this Commission, in the interim, directed the opposite party not to cancel the allotment orders issued in respect of the petitioners. Again considering the public interest in the matter, and as agreed between the parties, we thought it fit to refer the matter to the President, District Forum, Kamrup for making an attempt for amicable settlement of the matter. However, the President of the District Forum reported back to the Commission that inspite of two sittings of the parties, no compromise could be effected between the parties. It may be mentioned here that this Commission also made a local inspection of the site on 1.3.92 in presence of both the parties.

COMING back to the question of maintainability of the complaints the opposite party argues that the present dispute is not a dispute within the scope and meaning of the Consumer Protection Act 1986 and as such this Commission has no jurisdiction to entertain the complaints. We cannot accept such a contention. The National Consumer Disputes Redressal Commission in its verdict rendered in U.P. Avas Evam Vikas Parishad v. Garima Shukla and Others (reported in I (1991) CPJ 1 (NC)=1991 (1) CPR 387) held that a Housing Development Board being a statutory body is clearly engaged in rendering service for consideration to the public and therefore those who are allotted plots/houses are consumers in terms of Section 2(d) (ii) and 2(o) of the Act. We have no hesitation in holding that the petitioners are consumers of service rendered by the opposite party and as such the question of maintainability raised by the opposite party is rejected. Now, coming back to the merits of the present case, as we have mentioned earlier, there are two sets of accounts advanced by the parties concerned regarding fixation of price of the plots. This Commission has no machinery of its own to examine the accounts and the correctness of pricing. We therefore thought prudent to seek the assistance of a Committee to go into the accounts, and this was done after hearing the parties. Undoubtedly the Committee formed as aforesaid consisted of experts in their line of profession, and one cannot wish away their findings in the matter. The Committee visited the site, examined and verified all the relevant records and documents of the case, and after due deliberation submitted its report on 5.12.92. The Committee has found that the total cost of the acquired land of 53 Bigha 0 Katha 8 Lecha amounted to Rs. 10,35,084.75 and not Rs. 16,37,179.00 as claimed by the opposite party in its affidavit-in-opposition. We have carefully given our due consideration to the findings of the Committee and we accept the findings of the Committee in respect of the total cost of the acquired land and we are of the opinion that the amount of Rs. 6,02,094.25 which is the difference of the above mentioned amounts should be deducted in determining the price of each plot. We are however not inclined to agree with the Committee''s finding that an amount of Rs. 3,01,200.00 may be added to the actual cost of land as interest element because the Committee itself pointed out that the Board was silent on many vital elements including the rate of interest in the pricing policy. The opposite party also has not explained this aspect of interest rate in their affidavit-in-opposition.

THE Committee in its report on the cost of earth filling found that though the estimated cost was Rs. 33,71,219.80, the actual expenditure in this respect shown by the opposite party rose to Rs. 43,46,850.00, and during inspection it was found that actual filling at site is not more than 50 CM where earth work is done, but MBS show that filling is measured and paid for a depth of 1.60 M(AV), and almost in all plots allottees will have to do earth work be bring to the calculated desired level of the department as per top level of walls of the road side drain. THE Committee therefore recommended rebate to the concerned allottee at the rate of Rs. 47.90 per M3 (departmental). It is sad state of affairs to know from the report that the opposite party has paid for a depth of 1.60 M whereas actual filling at site is not more than 50 CM of earth filling. THE Board is a statutory body charged with the performance of public duty of providing house/housing sites to all classes of people including the needy and the under-privileged, and precisely to meet this point, the State has enacted this welfare legislation in the form of Assam State Housing Board Act 1972. We do not mean to say that the estimated cost of a particular item of work may not rise but in this case we find no explanation from the affidavit-in-opposition filed by the opposite party of the reasons for rise in the cost of earth filling over the estimated cost. It is a cardinal principle in work/contracts that the actual cost incurred must be met with reasonable limit left for gain to the executors of the work, but certainly no one is entitled to any gain for work not done, and precisely in the instant case this has happened by over-payment for work alleged to be done for a depth of 1.60 M whereas the actual filling of the earth is not more than 50 CM. One''s conscience is rattled by such a phenomenon. THE allottee cannot be made to suffer for fault and capriciousness of the opposite party who is responsible for the loss sustained by over-payment. We consider such act on the part of the opposite party to be deficient as it constituted fault, imperfection, short coming in the nature and manner of performance in pursuance of the contract. THE manner in which the Board has proceeded with making overpayment as aforesaid, and sought to reimburse it from the allottees cannot be supported in view of our constitutional right to live and work, and in view of the spirit underlying the Directive Principles of State Policy. We also agree that the allottees are entitled to some relief in this respect. We are of the opinion that a sum of Rs. 9,75,630.80, which is the difference between the estimated cost (Rs. 33,71,219.80) and the actual expenditure in earth filling (Rs. 43,46,850.00) as shown by the opposite party in their affidavit-in-opposition, be deducted in determining the price of each plot. However, we do not propose to interfere with the amount of administrative charge as shown by the Board in their affidavit-in-opposition. The Committee further finds that the work is not truly executed as per site plan, the road level are not maintained being abnormally made higher than the plots, the drain is not adequate resulting in water-lodging and that the boundary wall could have been done by a cheaper way. We however will not enter into the merits of the above findings of the Committee as the Committee has not specifically discussed the issue with regard to the cost spent or losses incurred due to such anomalies. Another grievance of the petitioners is that material changes were effected in the conditions, so much so that conditions non-existent in the application form were unilaterally included in the list of the conditions governing allotment. In particular they felt aggrieved with condition Nos. 6, 8,9 (ii) and 9(iv). At this stage it may be pertinent to point out that the price expected by the opposite party for each plot of land under different categories is not shown in the application form. We are of the opinion that this nonmentioning of the price in the application form has caused dis-advantage to the petitioners as they could not be certain of the offer made. Under the rules of contract an offer must be made in specific term so that the accepting party may have notice thereof, and does not come as a surprise in future.

WE have carefully considered the provisions of the aforesaid conditions. WE find force in the contentions of the opposite party in its affidavit-in-opposition that condition Nos. 6 and 8 in the allotment letter are necessary in order to protect the interest of the allottees. Such conditions are necessary for the security and permanancy of the tenure itself, and as such we reject the objections raised by the petitioners to these conditions. However we feel that extension of time for one more year is required for formation of the Association on account of the time spent on the present litigation. Coming to condition No. 17 of the application form it is found that the Board has classified the allottees under four groups The higher Income Group with monthly income above Rs. 2500.00, The Middle Income Group with monthly income from Rs. 1501.00 to Rs. 2500.00, The Lower Income Group with monthly income from Rs. 701.00 to Rs. 1500.00, and the Economically WEaker Section with monthly income below Rs. 700.00. In terms of condition No. A (ii) of the Allotment Letter, the category, initial deposit payable, number of monthly instalments, and the equated monthly instalment have been shown. The said condition in respect of HIG, MIG, LIG and EWS as laid down in four such allotment letters are reproduced below :- (a) Category Initial deposit within 25 days from the date of intimation Amount payable within 25 days No. of monthly instalments for the balance amount Equated monthly instalment in Rs. 1 2 3 4 5 HIG/MIG LIG EWS (b) 50% of the cost of 40% the plot 25% Rs. 43,450/- 12/18 24 60 Rs. 3,985/-

Category Initial deposit within 25 days from the date of intimation Amount payable within 25 days No. of monthly instalments for the balance amount Equated monthly instalment in Rs. 1 2 3 4 5 HIG/MIG LIG EWS (c) 50% of the cost of 40% the plot 25% Rs. 43,515/- 12/18 24 60 Rs. 2,658/- Category Initial deposit within 25 days from the date of intimation Amount payable within 25 days : No. of monthly instalments for the balance amount Equated monthly instalment in Rs. 1 2 3 4 5 HIG/MIG LIG EWS. 50% of the cost of 40% the plot 25% Rs. 19,580/- 12/18 24 60 Rs. 1,380/- (d) Category Initial deposit within 25 days from the date of intimation Amount payable within 25 days : No. of monthly instalments for the balance amount Equated monthly instalment in Rs. 1 2 3 4 5 HIG/MIG LIG EWS. 50% of the cost of 40% the plot 25% Rs. 9,112/- 12/18 24 60 Rs. 588/- In case of (d) above it appears that if the allottee''s monthly income, say Rs. 700.00, then he/she has to part with almost 80% of the monthly income towards the payment of instalment monthly. Calculated in such manner in case of (a), (b), (c) also, if the minimum range of monthly income is taken as the basis, allottees have to part with almost 80% of their monthly income towards payment of instalment monthly. The above procedure of payment leaves little to the allottee for livelihood of the family, and may deprive him/her the advantage of securing just and human conditions of work for achieving a minimum of decent standard of life. Such a procedure of payment in harsh and arbitrary which has the potential of infringing upon the right under Article 21 of the Constitution. WE are of the opinion that the procedure needs to be reviewed, giving some relief to the petitioners which may be secured firstly, by allowing a period of one month for payment of the initial deposit amount as has been laid down in condition No. A(ii) of the allotment letter (Annexure 2 of the complaint petition No. 4), and secondly, by determining the equated monthly instalment of the balance amount to cover only upto 60% of monthly income calculated in terms of the yearly income as shown by the allottee in his /her application form.

IN coming to our conclusions we have mainly relied on the pleadings of both the parties and the documents thereof, the findings of the Enquiry Committee, and direct observation made in presence of both the parties of the project site with the level of development made thereon. We have no doubt in mind that the allotment of a developed site for a dwelling house to potential users, in this case, the allottees, by the Board, is a service, as such allottee hires it for a consideration which has been paid or promised or partly paid and partly promised. IN the instant case, the element of promise by the opposite party, that it will deliver to the allottee a plot at a certain level of development, is inherent in the transaction itself. But we are constrained to say that due to the factors which resulted in some anomalies on the part of the Board as discussed above, the opposite party has not acted up to the expectations of the promise. We have also noted that the petitioners in complaint petition No. 4 of 1991 have represented the case on their own behalf and on behalf of other allottees under the scheme. IN a case for protection of consumers'' interest under the Act technicalities with regard to the form of the complaint petition do not matter much, and we think that substantial justice will be met in allowing the benefits of our following directions to cover all the allottees under the Scheme in question. In view of our discussion made above, we issue the following directions:- (i) The opposite party shall determine the price of each plot category-wise afresh after deducting an amount of Rs. 9,75,630.80 in the cost of earth filling, and an amount of Rs. 6,02,094.25 in the cost of land from the amounts shown respectively under these items in (a) and (b) at page 6 of the affidavit-in-opposition. In other words the price of each plot shall be determined on an amount of Rs. 99,10,727.00 (Rs. 86,25,778.00 total cost of the project and administrative charge of Rs. 12,84,949.00). (ii) The opposite party shall determine the payment of the equated monthly instalment in such number of instalments so that the monthly instalment does not exceed 60% of the allottee''s monthly income. (iii) The opposite party shall take steps for compliance of the above-mentioned directions within a period of 45 days from the date of this judgment. (iv) That the allottees shall form an Association in terms of condition No. 8 of the allotment letter within one year from the specified date of completion of payment of initial deposit by all the allottees. With the above directions we dispose of all the complaint petitions. The parties will bear their own costs.

Complaints allowed.