ORISSA STATE HOUSING BOARD vs SACHITANANDA RATH

OPPOSITE-party is appellant in all these seven appeals.

CASE of complainants is that each of them applied for allotment of a house under Balia Panda Housing Scheme of the appellant. After taking delivery of house, it was found by them that the house had not been constructed in accordance with the plan under which advertisement-inviting applications was issued. Construction of house was also defective. Facilities appertaining for enjoyment of the house were not provided. Rate of the house was arbitrarily enhanced. Accordingly, complaints were filed in the District Forum. CASE of opposite-party is that there was delay in construction which was unavoidable. On account of escalation of price, cost was increased. There was no defect in construction or deviation in the plan and all actions have been taken with approval of the Board. Accordingly, there is no deficiency in service. Complainants got the houses verified by a retired Chief Engineer who gave a report relating to the defect in construction of the houses. Opposite-party examined an Engineer before the District Forum who stated that there is no defect in the construction. Considering the materials as produced before the District Forum, it held that complainants are entitled to the direction to be given and has, therefore, given the direction. This is grievance of appellant.

One of the grounds taken by appellant is that complainant (in each of the cases) is not a consumer and accordingly, allegation of deficiency in service at the instance of complainant is not maintainable.

CONSUMER is a person who purchases goods or hires services. House is not a goods and accordingly purchaser of the house which is an immovable property is not a consumer under the definition of the CONSUMER Protection Act. It is to be examined, whether providing house by opposite-party is a service. Definition of ''service'' is in wide terms. It includes any service. When persons are not able to have their own roof over their heads, a statutory body with the idea of providing accommodation to such persons rendering service. It is not a simple case of construction and sale of a house which is immovable property. Almost all the redressal agencies in this Republic have come to the conclusion that providing houses by Housing Board is a service. This Commission in the decision report in 2 (1992) CPR 206 (Kumari Ranjan Dutt v. Orissa Housing Board) has observed as follows: "Providing accommodation on payment, be it permanent or temporary, is a service rendered. In case, there is shortfall in the contract for accommodation creating difficulty in use there would be deficiency in service. Unreasonable delay in providing the accommodation, refusal to handover possession by calling upon to pay increased consideration amount for providing the accommodation, defect in the construction of the accommodation affecting the use or non-furnishing of materials promised to be provided for, non-availability of surrounding facilities as promised for better enjoyment of accommodation, are, however, deficiencies in services which may bring a person, within the meaning of consumer to make opposite-party liable under the Act on facts and circumstances of a case. This distinction has to be kept in mind."

Therefore, each of the complainants is a consumer. In the said paragraph it has been indicated how there is deficiency in service by the Board. Complainant is to prove this deficiency in service forgetting a direction to the opposite-party for compensation.

AS regards the delay in delivery of the house, appellant has explained that the delivery was delayed on account of absence of final costing as explained in the reply statement. There was severe restriction of goods carrying trucks in Swargadwar Road and in the sea beach during that period. There was complete prohibition of movement of goods carrying trucks in various festival days. There was acute shortage of supply of K.V. Bricks which were required for the purpose of construction of the house. There were number of encroachments in the westernside of the plot. Removal of various encroachments took a long time for which the construction work was delayed. Completion of construction was delayed more because of non-availability of cement according to requirement. A glaring mistake occurred in calculation of cost of houses as per the completion report and the abstract of the estimate of M.I.G-II houses under the Scheme. On this account, an incorrect document was produced before the District Forum which was noticed by it. We are not inclined to accept any of the reasons indicated. When a Scheme was floated, the locality must have been inspected. If without inspection of the locality a Scheme is floated and hope is given that the house would be given within a particular period, a clear case of negligence from the start is made out. No material has been produced before the District Forum as to when the estimate was made, when tenders were quoted and accepted and why thereafter there was delay. It is not stated that after taking delivery of the land on which the construction would be made, encroachment by trespassers started. Where the Board did not take care forgetting a clear site and floated a Scheme, invited applications and received money for providing house, there is clear case of deficiency in service on account of negligence. When with high hope a consumer has invested his money to get his own house and is deprived of the same for a long time, the suffering both financial and mental goes without any saying. Increase in cost is caused by the Board itself. The factors for delay as indicated are not such which could not have been avoided. It is true that Board is a corporate body being a creature of the statute and having no living mind, it acts through individuals who are its employees. Where the employees on account of their inefficiency and negligence caused the delay, mere approval of the delay would not amount to be a sufficient ground to hold that after consideration of all aspects Board approved their conduct. Uncondonable laches of the employees condoned by the Board only invites the inference that it has invited the negligence itself. Therefore, the grounds stated for the delay are not just grounds. Deviation from the plan is clear on a bare look at the plan itself. Where there was deviation, the applicants should have been intimated about it so that they could have chosen whether or not to take the house applied for. Unilateral change in the plan is a deficiency in service. No satisfactory explanation has been given why the plan has been changed. Accordingly, on this account also there is deficiency in service. Defect in construction is another factor. Retired Chief Engineer on inspection of the house has found defect in the construction. The Engineer examined on behalf of the Board who explained that there was no defect in construction, has ultimately stated that he was not supervising the work. This itself indicates that the Board was casual even before the District Forum in representing its case. When conduct of the Board was being scrutinised before an adjudicating authority and care was not taken to justify the conduct, it can well be imagined what would be the conduct when the Board was not accountable. We are satisfied that each of the complainants has made out a clear case of deficiency in service on account of negligence of the Board for which there is a suffering for them.

NORMALLY we would have confirmed order of the District Forum. However, being conscious of the fact that by confirming the order of the District Forum we would direct payment from the State Exchequer, we are inclined to give opportunity to the Board to remove the deficiencies as found by the District Forum. For this purpose, appellant should appoint a team of Engineers to inspect the houses, get grievances from the complainants and other owners and intimate them what defects in the house can be rectified by them and the period that would be taken for rectification of same. This exercise should be completed within a period of three months. In case Board is willing to remove the deficiencies or some of them, it can apply to the District Forum for necessary modification of its direction. If no action is taken within three months as directed above, direction of the District Forum shall be complied with. With the aforesaid modification, the appeals are allowed in part. There shall be no order as to costs. Appeals partly allowed.