ORISSA STATE HOUSING BOARD vs BISWANATH MISHRA

THESE thirty-nine appeals which arise out of a common order passed by the District Forum, have been filed by the same opposite party in each of the complaints directing the opposite party to pay Rs. 13,874/ - to each of the complainants in twenty-five complaints and Rs. 13,772/- to each of the complainants in the rest fourteen cases which includes Rs. 1,000/- towards mental agony of each of the complainants.

UNDISPUTABLY, at Balia Panda in Puri town opposite party constructed some houses under a Housing Scheme. Each of the complainants applied for allotment of house to him on payment as per the scheme. They took possession of the houses. After taking delivery, they found that the houses have not been constructed in accordance with the plan as disclosed while inviting applications. Construction of houses was also defective. Facilities for enjoyment of the houses were not provided. Rates were arbitrarily escalated. On these allegations complaints were filed in the District Forum. Opposite party replied to each of the complaints that the price of each house was escalated as cost of construction increased and the delay in construction was unavoidable. Defect in the construction is denied and deviation in the plan is stated to be with approval of the Board of opposite party and accordingly it is claimed that there is no deficiency in service.

Complainants got some of the houses verified by a retired Chief Engineer who gave his report relating to the defect in construction of the houses. The report was produced before the District Forum. Opposite party examined an engineer before the District Forum who stated that there is no defect in the construction. With these materials, complaints were disposed of by the District Forum finding that complainants are consumers, there was failure on the part of the opposite party to construct the house according to the approved plan which resulted in the shortcomings in the service and the same is deficiency in service for which opposite party is to compensate to the complainants for the deficiency. Discussing evidence of the engineer Abinash Mohapatra examined on behalf of opposite party, District Forum found that nowhere he has stated that the houses are constructed according to the approved plan. He stated that there were certain works which were not done as those were not provided in the tender. The grill-gate or the railings in the windows were not supplied as those were not in the tender. There was no ceiling plaster and no terracing was made as that was not prescribed in the tender. He expressed ignorance if the tender was accepted in accordance with the approved drawing. From his version, it was found that though in the drawing there was a provision for terracing of the roof over the R.C.C. slab, the same has not been done. No brass fittings were provided to the doors and windows. When compared with the report of the registered valuer which is specific about the deficiency in the houses constructed by the opposite party, deficiency in service is proved. It was found that there was no difference between the houses purchased by the complainants. District Forum found that the Engineer Shri B.N. Sahu, who is the valuer, submitted the report and his deposition makes it clear that after visiting the locality and the houses he submitted his report. Opposite party did not adduce any other material to counter-act the statement given by the Engineer Shri Sahu which is specific about the deficiency.

THERE cannot be doubt any further so far as this State Commission is concerned that providing houses to persons by the Housing Board is a service rendered by it. Payment of consideration for the house includes hiring charges for the service rendered. In 1992 (2) C.P.R. 206 (Kumari Ranjan Dutt v. Orissa Housing Board), it has been observed: "... Providing accommodation on payment, be it permanent or temporary, is a service rendered..." Opposite party is a statutory body. It renders the service of providing accommodation to persons selected by it by inviting applications. Allotment without giving opportunity to others intending to get accommodation on payment who express their desire for the same, would amount to an arbitrary action. Opposite party which is the creature of a Statute carries on State activities and therefore, any arbitrary action by it would be in violation of Article 14 of the Constitution. Discriminatory service is a deficiency since under the Constitution mandate has been issued to statutory bodies to act fairly without any discrimination. Where there is discrimination, the statutory body is to explain that it is reasonable and not arbitrary.

BEING a statutory body it has no living mind, it has to act through individuals. Actions of individuals are regulated by rules and principles laid down under the Statute. No provision under the Statute has been brought to our notice where the Board or its officers can act unilaterally to change the promise given out in advertisements, schemes, plans and the like. After accepting allotment, it is desirable that any change in the plan of a house for which application is made is to be with consent of the applicant. If no consent has been taken and the plan is changed to the detriment of an allottee, the same would amount to deficiency in service as in our republic a statutory body gives out that it will adhere to the scheme and plans given out by it. This is implied in the action of every statutory body which is required to act fairly. When action of a statutory body relating to service rendered by it is questioned in a competent forum, it is required to account for the same to explain that there is no deficiency or the deficiency, if any, was unavoidable. Construction of houses under a scheme is undertaken through contractors. Tenders are invited and tender of a person who can execute the work according to the system and, plan, is accepted. In all such works contracts, there is a time scheduled for completion. The contractor renders the service of construction of buildings on behalf of the Board for payment. This payment is the hiring charges for the service rendered by the contractor. If the contractor has not adhered to the time scheduled or the tendered value, same is a deficiency in service and the opposite party Housing Board being a person can file a complaint against the contractor for compensation or other direction under the Consumer Protection Act being a consumer of the services rendered by the contractor. By condoning the deficiency of a contractor, if the price is escalated, the same amounts to deficiency in service to the allottee of the house. Therefore, in case there is escalation of the price of a house on account of delay in construction, the same would be a deficiency in service. Where, however, the allottees has paid the amount and taken delivery of the house without any demur, the deficiency of opposite party is condoned and ought not to be disputed later unless silent acceptance was not avoidable for an allottee which would depend on fact and circumstance of each case. Opposite party has explained that delivery of the house was delayed on account of absence of final costing. Besides, there was delay in constructions since the was restriction on the transportation of goods in Swargadwara Road and in the sea-beach during that period, there was acute shortage of K.V. bricks which were required for the purpose of construction of the houses. There were encroachments in the western side of the area delivered to opposite party. Removal of encroachments took a long time for which the construction work was delayed and construction, was also delayed because of non-availability of cement according to requirement. If the opposite party would have explained that these inconveniences were not anticipated or would have given details to draw an inference in support, question might have been different. There is no such explanation. While floating a scheme, officers of the opposite party must have inspected the locality. They ought to have taken steps for removal of the encroachments and getting clear possession before floating the scheme. Where without inspecting the area and taking note of the encroachments, a scheme is floated with a tentative time-schedule indicated for completion of the scheme, it amounts negligence of officers entrusted. Tolerance of such negligence becomes the negligence of statutory body itself. This aspect has been discussed also in another batch of appeals. No clear explanation is available from the opposite party-appellant either before the District Forum or in this Commission to that effect.

IF the construction is defective, the same is a clear deficiency in service. It appears that opposite party is casual in making assertions before the District Forum. It has examined an Engineer who had no personal knowledge. No document has been produced also. The engineer who was examined, stated that he was not supervising the work. On this statement, the evidence being unreliable, District Forum cannot be held to be wrong in accepting the version of a retired Chief Engineer examined on behalf of the complainants that there was defective construction.

WITH these findings normally we would have affirmed the order of the District Forum, We are, however, conscious that by directing payment of compensation, the State Exchequer would ultimately be affected. Therefore, we are inclined to give an opportunity to the Board to remove the deficiencies as found by the District Forum. For that purpose, appellant shall appoint a team of engineers to inspect each of the houses under Balia Panda Housing Scheme and get the grievances from each of the complainants and other owners. The team shall tabulate the defects complained of and the defects found. It shall recommend to the Board the defects which can be eradicated by the Board and the period that would be taken for rectification of the same. We would have appointed a team of engineers but the same would be costly to the opposite party. Therefore, opposite party which has competent engineers in its employment, is given a chance to send its own team. This exercise should be completed within a period of three months. In case the Board removes the deficiencies or some of them, it shall intimate each of the complainants and other owners as to which deficiencies cannot be eradicated. If any of the owners of the houses is dissatisfied thereafter, it can approach the appropriate redressal agency for compensation or other directions. Subject to the aforesaid directions, appeals are allowed to the extent indicated above. There shall be no order as to costs. Appeals allowed to the extent indicated above. _______________