RAJASTHAN HOUSING BOARD vs PREM KUMAR KAPOOR

BEING aggrieved and dissatisfied by the order dated 28.10.2003 passed by the State Consumer Disputes Redressal Commission, Rajasthan, in Appeal No. 739 of 2002, the Petitioner, Rajasthan Housing Board has filed this Revision Petition. The State Commission has directed that: 1. The Petitioner shall deliver the possession of the flat to the Complainant after providing flooring, sanitary and electricity fittings and doors on exit windows; 2. In case of failure to comply with the order with regard to the deficiency as noted above, the Petitioner shall pay a sum of Rs.50,000/- to the Complainant for getting fixtures and fittings and flooring at his own cost; 3. In addition, the Respondent shall pay interest at the rate of 9% p.a. on the amount deposited by him from time to time from the date of last deposit made towards the cost of the house; 4. It would be open to the Board to recover the said amount from the erring and delinquent officers as per the judgment of the Apex Court in Lucknow Development Authority Vs. M.K.Gupta (1994) 1 SCC 243. It is the case of the parties that the Housing Board floated a scheme known as Sanganer Housing Scheme for three categories of houses, namely, LIG, MIG (B) and HIG. Under the said scheme it was indicated that in accordance with the details given in the brochure fully constructed and incompletely constructed - skeleton flats were to be disposed of on instalment basis/outright sale basis under open sale scheme from 7th March, 1998 to 30th April 1998.

IN the said brochure different prices for the flats on the first floor and the ground floor were indicated on zone-wise basis. It is also mentioned in the brochure that an asteric mark against certain flats was shown so as to indicate that the flats so marked were not fully constructed. It is the contention of the Petitioners that in June, 1998 the price of the fully constructed flats on the first floor was ranging from Rs.5,54,200/- to Rs.6,48,250/- and the prices of incomplete houses at first floor was between Rs.5,30,000/- to Rs.4,77,850/-. It is pointed out that on account of the printing mistake against the Item No.14 with respect to Zone 52, House No.24, the price shown was Rs.4,77,850/-, but, there was no asteric mark against the said item even though the flat was not fully constructed. It was also pointed out that flats selected by the parties were as per their choice and were being disposed of on ''as is where is'' basis. Undisputedly, the Complainant accepted the said proposal after selecting a H.I.G. Flat and deposited Rs.1,25,000/- as initial payment. In the application form it is mentioned that the land of the flats will be allotted on lease of 99 years and the allottee will be required to deposit the lease money in half-yearly instalments, every year. The flats would be sold on ''as is where is'' basis. That prescribed form was filled in by the Complainant on oath (in a regional language) wherein it is made clear that after understanding it fully he has submitted his proposal. On the basis of the said application the flat was allotted to the Complainant and the Petitioner issued allotment-cum-possession letter on 18th March, 1998, allotting Flat No.52/176 situated in Pratap Nagar, Sanganer Scheme, and asking the Complainant to deposit the balance amount of Rs.3,67,417/- details whereof were given in the said letter. The Complainant had not accepted the said offer and contended that the flat was not complete and there was no flooring etc., and that in the brochure, the Asteric mark was not mentioned indicating that the flat was complete. To that contention, the Petitioner replied by letter dated 16.11.1998 that the Housing Board sold the flat on open counter scheme on ''as it is where it is'' basis, and, that was the reason that for various flats for HIG constructed in Pratap Nagar in Sanganer Housing Scheme the cost was different. It was also stated that due to clerical mistake in the brochure the house was indicated as complete and that clerical mistake would not confer any right on the Complainant. Thereafter, the Complainant (Respondent) approached the District Forum, Jaipur, by filing Complaint No.1982 of 1998. That complaint was dismissed after considering all the relevant facts by order dated 23rd May, 2002.

AGAINST that order, the Complainant preferred appeal No. 739 of 2002 before the State Commission. The State Commission, by its order 28th October, 2003, allowed the said appeal. Hence, the Housing Board has preferred this Revision Petition. Learned Counsel for the Petitioner submitted that the flat was sold under open sale scheme and the Complainant had visited the site, verified the same and had offered to purchase it on ''as is where is'' basis. His application was accepted. Therefore, the contentions raised by the Complainant are of no substance.

AS against this, learned Counsel for the Respondent submitted that in the advertisement issued by the Housing Board the Asteric mark is not mentioned at serial No. 14, i.e. flat which was purchased by the Complainant. He also pointed out that in the allotment letter issued to the Complainant, against ''House Type'' it is mentioned as ''complete''. He further referred to the application form, wherein there is a column, as to whether the applicant requires ''complete'' or ''incomplete'' flat, it is mentioned by him ''complete''. And, therefore, the order passed by the State Commission was just and does not call for any interference. In our view, the submission of the learned Counsel for the Housing Board requires to be accepted, because the flats were sold on ''as is where is'' basis (''jahan hai, jaise hai''); that application form was signed by the Complainant after fully understanding its contents; and, that too, it was signed under oath.

IT is also rightly pointed out by the Housing Board that the flat in question was constructed as a skeleton house and a number of such skeleton houses were sold on ''as is where is'' basis at open counter sale. After inspecting the flat, offer to purchase was made by the complainant. Further it is submitted that for fully completed flats, prices varied from Rs.5.30 lakhs to Rs.6.6 lakhs. In such set of circumstances, in our view, it cannot be said that there was any deficiency on the part of the Housing Board in not providing flooring, etc., as the skeleton flat was for sale at open counter sale. That was accepted by the Complainant.

IT is true that there is a mistake in not mentioning asteric mark in newspaper advertisement for sale and that in the allotment letter issued to the Complainant on 18th March, wherein, against the house type, it is mentioned ''complete''. But as the sale was at open counter sale, and, when the application was filed for purchase of the flat on ''as is where is'' basis, it is not possible to accept the contention that the Complainant was interested only in purchasing ''completed''. In such cases, some error or mistake (intentional or unintentional) on the part of the clerk/officer of the Housing Board would not confer any right on the Complainant to ask the Housing Board to furnish the skeleton flat which was sought to be purchased by him. In this view of the matter, the impugned order passed by the State Commission requires to be set aside. Further, it is admitted that by interim order we have directed the Housing Board to deliver the possession of the flat to the Complainant. On that basis, possession of the flat is delivered. It is also admitted that Complainant has carried out further construction at his cost. Next question is whether Complainant should get some compensation for the errors committed by the officers/clerks of the Petitioner - Housing Board, which has misled the Complainant? Considering the errors, as stated above, in our view this is a fit case for awarding compensation. We, therefore, award Rs.25,000/- as compensation to the complainant.

IN the result, the Revision Petition is allowed and the impugned order passed by the State Commission is set aside. However, the Petitioner is directed to pay Rs.25,000/- as compensation to the complainant within a period of 30 days from the date of the order. There shall be no order as to costs.