P.GOPALA SUBREHMANYAN vs VICE CHAIRMAN, HOUSING COMMISSIONER

THE complainant is an allottee of Flat no.40 (First Floor Flat) in Phase No. 5 Kukatpalle under Self Financing Housing Scheme. THE Opposite party is Vice Chairman, and Housing Commissioner of A.P. Housing Board, Hyderabad. THE reliefs claimed in the complaint are : (a) Awarding payment of compensation for delaying handing over the possession of the Flat beyond January, 1990; (b) Ordering refund of the enhanced cost of the Flat collected without seeking the extension of the two year limit from the Government and (c) Instructing A.P. Housing Board to complete construction of the Flat and hand over possession of the Flat with all facilities including electricity and water urgently.

THE complaint came to be filed in the following circumstances. THE opposite party on 10.5.1987 notified the proposed construction of flats at the places mentioned in the notification including Kukatpalle under self Financing Housing Scheme. According to the notification the higher income group, i.e. four storied flats, will have an approximate plinth area of 812.72 sft. for each flat and the approximate cost was mentioned as Rs. 1,28,000/- and 10% of the cost is to be paid along with the application. In the notification it was also mentioned that the flat will be completed in all respects within a period of 18 months from the date of the execution of the agreement unless circumstances beyond control of the board warrant extension of the period which shall not exceed 2 years. Under condition No. 10 of the scheme after the flats are completed and ready for occupation flat numbers will be assigned by drawal of lots to the selected applicants. THE complainant applied for higher income group flat and paid initial amount along with the application. THE agreement for sale was entered into between the parties on 7.1.88. In the said agreement under clause 2 the purchaser i.e. the complainant agreed to pay to the board the difference between the estimated cost and final cost. Under clause 3 of the agreement on purchaser paying full estimated cost and other costs if any payable by him under this indenture the opposite party shall convey the flat to the purchaser by executing regular conveyance deed. Subsequently, on 16.8.90 the opposite party informed the complainant that during execution due to some exigencies and due to some additional items and due to exorbitant prices collected towards laying pipes for Manjeera water and electrical lines the cost of the flats had been increased. It was notified that in the first floor flats of higher income group there is increase in the plinth area from 812.72 sft. to 899.32 sft. and that therefore the cost has been increased from 1,28,000/- to 1,53,500/-. It was also mentioned that the delay in giving possession of the flats is due to the reason that Hyderabad Metro Waterworks Department could not complete the construction of OHSR and laying of feeder line and distribution lines which are likely to be completed shortly. In view of this escalation of cost it was notified that the allottees of flats in other than ground floor are requested to make necessary arrangements for payment of Rs. 20,500/- on or before 16.9.90 before conducting lottery and before assigning the flats. It was further informed that the allottee who gets first floor flat had to remit a further sum of Rs. 5,000/- before taking possession of the flat. Pursuant to the aforesaid letter the complainant paid the amount of Rs. 20,500/- on 5.10.1990 subsequent to the date notified. Lots were drawn on 20.1.1991 in which the complainant got the first floor flat i.e. flat no.40. By intimation letter No. 118265/ LM.8/RHE : WD/91 dated 15.2.1991 the opposite party informed the complainant that he got the first floor flat, he has to pay further sum of Rs. 5,000/-. THE complainant paid Rs. 5,000/-as intimated in the above letter dated 15.2.91. THE opposite party on 27.5.91 informed the complainant to take possession of the flat at the spot. Complaining that the opposite party has not obtained sanction of extension of two years limit for enhancement of the cost of flat from government and is also not in a position to give possession of the flat with all amenities including electricity and water even now and as the complainant should have been intimated to take over the possession of the flat within a period of two years, January, 1990 the above C.D. Case is filed for the three reliefs already mentioned.

In the counter it was submitted by the opposite party that the estimated cost and determination of the final cost should always be based on the actual working of the scheme expenditure involved. The cost of the flat includes the cost of land, civil works service contracts like providing water, electricity etc. Hence the final cost will be determined after the completion of the building inclusive of the cost of the expenses incurred for providing amenities etc. That the opposite party is not profit making body and in self financing scheme project has to be taken up even before all the installments are to be recovered from the allottees. The cost of the entire project is paid for and as such the allottees will have to bear the entire cost. Possession is delivered to the allottees with the cost of the flat is fully realised. After completion of the construction of the flat the complainant was informed by letter dated 16.8.1990 the reason for the delay in handing over the flat. The water connections are done by separate agencies known as Metro Water Works and it did not construct Over Head Reservoir by indicating its cost and capacity and did not lay down the feeder lines and distribution lines. Similarly, Electricity Board has also delayed the work in completing power connections. On the part of the opposite it has paid amounts demanded by the waterworks and Electricity Board. It is further stated that it is assured by the concerned department that the work is done rapidly and in all probabilities the petitioner-complainant would be given possession of the flat in 2 or 3 weeks time. It is denied that the petitioner is entitled to any refund of escalation of charges or compensation for the so-called delay. It is lastly submitted that the petition is not maintainable in Commission constituted under the Consumer Protection Act, 1986.

IN the reply affidavit to the counter it was stated that on 27.5.1991 the opposite party Housing Board directed the petitioner to take possession of the flat at the spot. On visiting it was noticed that the flat had no water and electricity. The Housing Board fixed tank and arranged bore well water on 10.6.91 on which date the complainant took possession of the flat. It was found that there was no water available when complainant''s father visited the flat on 11.6.91 and on 13.6.91 on 13.6.91 the A.P. State Electricity Board asked the complainant to pay three months'' consumption charges to release power supply early. The complainant therefore prayed that the State Commission may instruct the Housing Board for arranging regular water supply daily two times pending supply of Manjeera Water and also power so that he may occupy the flat immediately, reiterating once again the reliefs claimed in the main complaint. Before taking up for consideration the submissions made by the complainant the objection of the opposite party that the complainant is not a consumer and hence the complaint is not maintainable under the Consumer Protection Act, 1986 can be disposed of. The National Commission in U.P. Avas Evam Vikas Parishad v. Garima Shukla I (1991) CPJ 1 (NC) held that the Board which undertook construction of buildings was engaged in rendering services for consideration and the allottees of houses by the Board fell within the definition of Consumer, under Section 2(1)(d)(ii) of the Consumer Protection Act. Hence the objection of the opposite party that the complaint is not maintainable is rejected.

TAKING up the submissions of the complainant it is firstly submitted that under Clause 9 of the notification dated 10.5.1987 it was stated that the flat will be completed in all respects within a period of eighteen months from the date of execution of agreement unless circumstances beyond the control of the board warrant extension of the period which shall not exceed two years. The agreement for sale was entered into on 7.1.1988 as the flat was not delivered possession within a period of two years from 7.1.88 i.e. January, 1990,as there is delay in delivering possession of the flat the complainant therefore entitled for compensation for delay in handing over possession of the flat beyond January, 1990. In the agreement entered into it was stated that the purchaser agrees to pay to the board the difference between the estimated cost and final cost. The final cost can only be arrived at after completing the construction as well as the cost incurred for supply of water and electricity to the flats. The opposite party intimated by a letter dated 16.8.90 to the complainant that the tentative cost was indicated in the notification as 1.28 Lacs for the first floor flat but during execution due to some exigencies and due to some additional items and also due to exorbitant amounts being collected towards laying of Manjeera Water supply lines and external electrical mains by the respective departments the cost has been increased to Rs. 1.535 Lacs. It was also mentioned that the delay in giving possession of the flats is due to the reason that the Hyderabad Metro Water Works could not complete the construction of O.H.S.R. and laying of feeder line and distribution lines and that they are likely to be completed shortly. It was also mentioned that since in self financing scheme the escalation cost as shown above is not paid by the allottee before the completion of the scheme. The complainant was therefore informed to make necessary arrangements for payment of Rs. 20,500/- before conducting lottery which is likely to be on 10.9.90. The complainant was also informed that the allottee who occupies the first floor flat has to remit a further sum of Rs. 5,000/- before taking possession of the flat. The complainant paid the amount of Rs. 20,500/- on 5.10.1990. In the lottery as he got the first floor flat the complainant was intimated on 15.2.1991 that he has to pay a further sum of Rs, 5000/-. After payment of the said sum of Rs. 5000/- the complainant was informed on 27.5.1991 to take possession of the flat at the spot and the complainant took possession of the same on 10.6,1991 after the opposite party arranged bore well water. No doubt in the notification it was stated that the flat will be completed within a period of two years from the date of the agreement i.e. by January, 1990 it could not be completed due to unforeseen circumstances. Under Clause 2 of the agreement the purchaser agreed to pay the difference, between the estimated cost and final cost. The final cost was intimated to the complainant on 16.8.1990. In the said letter the Housing Board explained the delay in giving possession of the flat is due to the reason that the Hyderabad Metro Water Works Department could not complete the overhead tank, feeder and distribution lines. Thus, the delay in giving possession is explained by the opposite party. The lottery was conducted on 20.1.1991 and the complainant was informed by letter dated 15.2.1991. As he got the first floor flat the plinth area of which has come to 899.32 Sft. instead of 812.72 Sft. as notified, the complainant was asked to pay a further sum of Rs. 5000/-. On payment of the said amount, the complainant was asked to take possession of the flat on 27.5.91. But the complainant actually took possession of the flat on 10.6.1991. Thus, it is evident that after paying the final cost the opposite party on 24.4.91 intimated the allottees to take possession on 27.5.1991. The last amount of Rs. 5000/- towards final cost was paid sometime after February, 1991 and the complainant was asked to take possession of the flat on 27.5.1991 and that he actually took possession on 10.6.1991. It therefore cannot be said that there is a long delay in delivering possession to the complainant after payment of the final cost. We are satisfied that due to circumstances beyond control of the Housing Board possession could not be given within a period of two years of agreement and that the respondent opposite party explained the reasons for the delay. Hence we are not inclined to award any compensation for the delay in handing over possession. The complainant placed reliance on Sri U.M. Mallappa v. The Commissioner, Mysore Urban Development Authority, I (1992) CPJ 265 wherein the Kamataka State Consumer Disputes Redressal Commission awarded compensation by way of interest on the sum deposited with the Development Authority as it failed to deliver possession of the building to the Complainant in about 2 years from the date of allotment. Even in the said case it was observed that having regard to the number of houses to be constructed by the respondent therein, it is appropriate to allow six months time for completing the house and handing over possession of the same. It is not known whether any explanation was submitted by the Mysore Urban Development Authority for the delay in constructing the house and handing over possession. It is also not known from the facts of the case the date for payment of final cost to be paid by the allottee. But, in the instant case the reasons for the delay are explained and the final payment was made only some time in February, 1991 and delivery of possession was offered in May, 1991. Therefore, it cannot be said that after receiving final payment there is unavoidable delay on the part of the opposite party-housing board. The next decision relied upon by the Complainant is Messrs, Aar Pee Apartments Pvt. Limited v. Mrs. Shakuntala Devi I (1992) CPJ 266 In the said case the complainant took a shop proposed to be built by the Aar Pee Apartments for a consideration of Rs. 59,334/- and paid Rs.8900/- towards part payment of the price. The builder appellant there in did not get the plan sanctioned and therefore the question of constructing the building does not arise. There was also no satisfactory explanation for the delay in starting construction. In these circumstances, the State Commission directed refund of Rs. 8900/- with interest. Thus, the facts of the above case are different from the facts of the case on hand before us. In this case municipal sanction was obtained and in fact construction was completed but according to the complainant there was delay in delivering possession. Hence the aforesaid decision has no application to the instant case. The complainant relied on the decision in Secretary cum Chief Engineer, H.P. Housing board v. S.K. Ahluwalia I (1992) CPJ 64 (NC) in support of his contention. In the said case, constructed garrage was allotted to the respondent on tentative cost of Rs. 30,000/- in 1982 and the respondent deposited Rs. 22,000/- by October 10, 1983. But there is a delay of more than six years in handing over possession of garage. Moreover, the Board compelled the allottee to pay price of the garage at the rate prevailing in -1989. The National Commission found that there is no justification for long delay of six years and that if the construction or delivery of possession of garage is going to be delayed the board should not have called upon the complainant to deposit Rs. 22,000/- and : that therefore awarded a sum of R.s. 16,000/- representing the approximate aggregate interest on the sum of Rs. 22,000/-. On appeal the National Commission confirming the finding of the State Commission, held that there is no explanation as to why the appellant Board called upon the Complainant by letter dated May 9, 1983 to deposit two installments of Rs. 10,000/- each on May, 25th 1983 land October 20, 1983, if there was no reasonable prospect of the garage being constructed and possession thereof delivered to the complainant shortly thereafter. After collecting the second installment from the complainant on October 20, 1983, there was total inaction and silence on the part of the Board for a period of nearly six years until September 4,1989 when the complainant was informed by the Boa rd that the cost of the garage had been further enhanced to Rs. 49,000/- and that he should deposit the balance amount of Rs. 27,000/- within a period of 45 days." But in the instant case there is explanation as to why there is delay in completing the construction. Moreover the final cost was paid only some time in February, 1991 and possession was handed over in May, 1991. Hence it cannot be said that there is unexplained extraordinary delay in handing over possession of the flat. Hence the aforesaid decision has no application to the facts of this case.

THE complainant next relied on the decision of the National Consumers Disputes Redressal Commission in M.K. Gupta v. Lucknow Development Authority I (1992) CPJ 66 (NC). That is a case where the allotment of MIG flat was against cash payment. THE appellant paid full amount of the flat and the flat was registered in his name. Since even after receiving the full cost, Lucknow Development Authority was not able to complete the construction work, having undertaken to deliver possession of the house to the appellant on payment of the full cost and after registering the sale deed the Lucknow Development Authority failed to deliver the possession after receiving full cost of the registration of the sale deed. It was held by the National Commission that "it was obligatory on the part of the respondent Lucknow Development Authority to have transferred the possession of the house complete in all respects immediately after the house was registered in the name of the appellant who had already made the payment in full. THEre was no justification for this delay and if the respondent Lucknow Development Authority had any internal problems which led to the delay in completing the construction work of the house, the Complainant/ Appellant cannot be made to suffer for the same. "Hence it directed the possession of the house and Compensation. But, in the instant case, final cost was paid in February, 1991 and possession was given in May, 1981. Hence it cannot be said that there is any unreasonable delay and the parties contemplated only on payment of the final cost possession has to be delivered. THErefore, the facts of this case are different from that of the above case. THE complainant invited our attention to Lucknow Development Authority v. M.M Sood II (1992) CPJ 437 (NC) where the National Commission upheld the order of the State Commission awarding interest to the complainant by way of compensation for the delay in delivering of the house as well as further sum of Rs. 2,000/-as compensation for the inconvenience caused to him due to the existence of sewage line in his courtyard. As mentioned earlier, in the instant case, there is not much delay in delivering of possession after payment of the final cost. THE Housing Board explained the reasons for the delay which are beyond its control. We are therefore satisfied that the facts of the instant case are different from the case relied on by the complainant.

THE last decision relied upon by the complainant is Kanhaiyalal Mathur v. Rajasthan Housing Board I (1991) CPJ 37 (NC)=1991 (2) CPR 188 first Appeal No. 690 decided on 3.5.1990 by the National Commission, in the said case, the appellant had deposited the full price of the flat. Even after receiving the full amount there was delay in handing over possession. THE National Commission, therefore, directed that until possession of the house after completing it, is delivered to the complainant, the Opposite Party shall pay interest on the amount which is lying in deposit with the opposite-party at 12% p.a. from the date of deposit until delivery of possession. In the instant case possession was already delivered after payment of the full cost. Hence the aforesaid decision has no application to the instant case. So we hold that after payment of the final cost there is no delay in delivering possession of the flat to the complainant. THE delay in completing the huge number of flats undertaken by the board is due to circumstances beyond their control and they are intimated the same, before payment of the final cost, to the complainant explaining the delay. THE complainant did not raise any objection that there is unreasonable delay or that explanation offered by the housing board for delay is not true. In these circumstances, we are not inclined to award payment of any compensation for the alleged delay in handing over possession of the flat. The second contention is, that the Board violated regulation 23(3) of AP Housing Self Financing Housing Scheme Regulations, 1975 which reads "that the final determination of the cost should be done within two years from the date of execution of agreement under regulation 20. The said period may how ever be extended by Government in the case of such of the houses where final cost cannot be fixed within two years because the matter relating to land compensation or the payment of final bills to the contractors is pending in the Court." And that as the Housing Board has not obtained extension of time for fixing the final cost beyond 2 years time, it cannot collect the difference between the final cost and tentative cost and the amount so collected has to be refunded to the complainant. It is to be seen that under the agreement the complainant agreed to pay the final cost as determined by the housing board. It is not the case of the complainant that the housing board has not incurred the final cost as determined by it. Even when the letter determining the final cost was communicated to the complainant as early as on 16.8.90 the complainant did not raise any objection for determination of the final cost and he paid the same without any protest. Since the complainant is not disputing the quantum of final cost arrived at it cannot be said that there is any deficiency in service. If the Housing Board has violated Regulation 23(3) of A.P. Housing Board Self Financing Housing Scheme Regulations, 1975 it will not constitute any deficiency of service and the legality of the determination of the final cost fixed by the Housing Board without obtaining permission of the Government is illegal or otherwise cannot be gone into in these proceedings. Hence the second contention has no merit,

It is submitted by that complainant that direction should be given to the respondent-Housing Board to construct the flat and hand over possession of the fiat with facilities including water and electricity urgently. Subsequent to the filing of the present C.D. Case, the housing boa rd asked the complainant to take delivery of possession of the house on 27.5.199 and that infact the complainant took possession of the same on 10.6.91. Hence the question of directing the opposite party to put the complainant in possession of the flat does not arise. But in the reply affidavit it is submitted by the complainant that the housing board has not arranged for regular supply of water (Bore well water) pending supply of Manjeera Water. It was also mentioned that the Assistant Engineer, A.P. State Electricity Board has asked the complainant to pay three months'' consumption charges for releasing power supply early. Since the flat was already given possession, the respondent has to provide water supply for the same. So far as power supply is concerned, the complainant has to make necessary deposits with the electricity board for releasing power supply.

IN the circumstances, there shall be a direction to the Housing Board to arrange for supply of water regularly to the flat of the complainant. In the result, the Consumer Dispute Case is disposed of with a direction to the Housing Board to expedite steps to be taken for arranging regular supply of water to the flat of the complainant within a period of two months from the date of the receipt of the order. There shall be no order as to costs. Complaint disposed of.