M.P. HOUSING BOARD vs Subhash Chandra Vyas

ON remand by the Hon ''ble Supreme Court, vide order dated 26.04.2013, setting aside the order passed by this Commission on 31.03.2011, this revision petition under section 21(b) of the Consumer Protection Act, 1986 (for short ''''the Act '''') has been listed for fresh adjudication.

BRIEFLY stated, the material facts giving rise to the revision petition are as under: - On 28.06.1999, the Madhya Pradesh Housing Board (for short ''''The Housing Board '''') issued an advertisement inviting applications for registration for allotment of residential houses under HIG Housing Scheme. The allotment was to be governed by the Rules and Conditions of the Board, existing at that time. The Complainant got registered under the said scheme on 06.09.1999. On 16.05.2001, he was informed that his registration has been accepted under the Scheme and a house bearing No.H -90 had been reserved for him and that the construction of the house was likely to be completed in the month of June 2001. On 23.06.2001, an allotment letter was issued to the Complainant and he was called upon to deposit a sum of Rs.75,183/ - (including best location charges @ 5%) within 30 days before taking the possession. It seems that the Complainant had made a request for charging of lease rent only for a period of three years, instead of eleven years and therefore, vide letter dated 20.12.2001, he was asked to deposit a sum of Rs.44,156/ -, furnish two passport size photographs and a non -judicial paper of Rs.50/ - for execution of agreement etc. The Complainant deposited the said amount of Rs.44,156/ - on 22.01.2002, but did not furnish non -judicial paper and the photographs. These were furnished only on 28.03.2002. On the same very day, the agreement was executed and possession of the house was handed over to him. However, alleging unfair trade practice on the part of the Housing Board, on 18.08.2003, the Complainant filed a complaint under Section 12 of the Act before the District Consumer Disputes Redressal Forum, Indore (for short ''''the District Forum '''') inter alia, praying for interest @ 16.5% p.a. on Rs.8,98,156/ - the total amount deposited by him, for the period from December 2001 till 28.03.2001 and refund of a sum of Rs.11,838/ - charged by the Housing Board @ 5% of the price of the house as best location charges.

ON appraisal of the material placed before it, the District Forum accepted both the said claims and allowed the complaint with a direction that the said amount paid by the Complainant as best location charges shall be refunded along with interest @ 12% p.a. on the entire amount paid by the Complainant for the period from 01.01.2002 to 28.03.2002. Aggrieved, the Housing Board preferred appeal to the Madhya Pradesh State Consumer Disputes Redressal Commission (for short ''''the State Commission ''''), but without success. The said order was challenged before this Commission. Following a three member Bench ''s decision of this Commission in Rajesh Kumar Gupta Vs. Estate Manager, M.P.H.D. (Revision Petition No.303/2004 decided on 07.07.2004) wherein it was held that the Housing Board was not entitled to demand 10% extra charges for a corner plot because of its advantageous position, vide order dated 31.03.2011, the Revision Petition was dismissed.

BEING dis -satisfied with the said order, the Housing Board carried the matter to the Supreme Court. As noted above, the Hon ''ble Supreme Court, vide order dated 26.04.13 (in Civil Appeal No. 4116/2013) has set aside the order passed by this Commission on 31.03.2011, on the ground that the decision of this Commission in Rajesh Kumar Gupta ''s case (supra), stands reversed by its decision dated 16.04.2009 - (Estate Manager, M.P. Housing Board Vs. Rajesh Kumar Gupta - (2009) 16 SCC 118 and accordingly remitted the matter to this Commission for reconsideration. We have heard Ld. Counsel for the parties. In so far as the first question, viz; whether the Housing Board could charge from the Complainant an additional amount @ 5% for better location of the house, is concerned, the issue is no longer res integra. In Rajesh Kumar Gupta (supra) answering the question whether the Madhya Pradesh Housing Board was authorized to levy extra charges @ 10% and @ 5% for the corner and best location plots respectively, in favour of the Housing Board, the Supreme Court held as follows: - '''' The National Commission was of the view that because by sheer chance of luck in the draw of plot in the lottery the plot was allotted, the principle relating to charging the additional amounts for the best location or corner plot cannot be applicable. This conclusion is contrary to the advertisement made for registration of the house. It has been specifically mentioned therein that the registration of the house shall be determined by the lottery and the terms and conditions of registration and allotment specifically provided for additional charges. That being so, the view taken by the National Commission cannot be sustained and is set aside. ''''

Thus, the levy of extra charge by the Housing Board for best location plots @ 5% has been upheld by the Supreme Court. In light of the said decision, charging of extra amount @ 5% of the price by the Housing Board is unquestionable. We hold accordingly.

IN so far as the second issue, viz; whether the Housing Board was liable to pay interest to the Complainant on account of alleged delay in handing over the possession of the house is concerned, Mrs. Meera Mathur asserted that there was no delay on the part of the Housing Board in delivery of possession, as it was the Complainant himself who delayed possession by not furnishing the photographs and non -judicial paper, demanded by the Housing Board vide letter dated 28.12.2001. The documents were furnished on 28.03.2002 and on the same day the possession of the house was handed over to the Complainant, who received possession without any protest. In support of the contention that having taken the possession of the house at the agreed price, the question of award of interest on the price paid by the Complainant did not arise, strong reliance was placed by the Ld. Counsel on the decision of the Supreme Court in Bangalore Development Authority Vs. Syndicate Bank - (2007) 6 SCC 711. It was thus pleaded that the orders of the Fora below on this point also deserve to be set aside.

WE find substance in the contention of Ld. Counsel for the Housing Board. It is clear from the record that vide letter dated 20.12.2001 the Complainant was asked to pay a sum of Rs.44,156/ -, as balance consideration for the house, along with the said documents. On his own showing, the documents were furnished by the Complainant only on 28.03.2002 even though he had paid the additional demand of Rs.44,156/ - on 22.01.2002. At the time of taking possession of the house on 28.03.2002, the Complainant did not raise any claim towards interest on account of delay in handing over of the possession. After a lapse of over one year, the complaint was filed. We are of the opinion that under these circumstances, the Fora below were not justified in awarding interest on the amount paid by the Complainant as price of the house for the period from 01.01.2002 to 28.03.2002. It is also difficult to decipher the relevance of 01.01.2002, from which date the interest has been awarded by both the Fora. In our view, the delay in execution of the agreement and the consequent delivery of possession was clearly attributable to the Complainant and not to the Housing Board, as alleged. 8. In view of the above, we allow the Revision Petition and set aside the impugned order with no order as to costs.