RAJESH BAKSHI vs H.P. NAGAR VIKAS PRADHIKARAN

THE complainant, by this complaint, has prayed that the respondents (hereinafter to be referred to as the opposite party) should be directed to pay damages to the extent of Rs. 9,00,000/- on account of increase in the cost of construction because of delay in handing over the possession of the plot, loss of rental value and harassment, mental torture and agony.

THE brief relevant facts set out in the complaint are that the complainant in pursuance of an advertisement issued by the opposite party, applied for the allotment of plot under 4th Partially Self-Financing Scheme for residential complex below Bishop Cotton School in Kasumpti Zone of New Shimla and alongwith the application, he deposited Rs. 9,000/- as earnest money. On the basis of such an application, the complainant was allotted a plot Type-B under 4th Partially Self-Financing Scheme for residential Complex below Bishop Cotton School in Kasumpti Zone of New Shimla subject to certain terms and conditions contained in brochure of the Scheme and Regulations of Shimla Development Authority as amended from timeto-time vide letter dated 11.11.1986, Annexure C-l. According to this letter, the tentative cost of the plot Type ''B'' was Rs. 60,000/-. According to the complainant, an amount of Rs. 9,000/- was already paid by him alongwith the application as earnest money and Rs. 9,000/- was required to be paid by way of first instalment before 9.12.1986 and that the complainant was further required to pay 12 monthly instalments before 9th of each month from January, 1987 to December, 1987 @ Rs. 1500/- per month. THE balance amount was payable by the complainant with interest within 6 years starting from January, 1988. According to the complainant, he had in terms of the schedule of payment prescribed in this letter, deposited the entire amount as demanded by the opposite party upto December, 1987. In other words, the complainant has paid an amount of Rs. 36,000/- by December, 1987 (Rs. 9,000/- alongwith application as earnest money, Rs. 9,000/- as first instalment on allotment before December, 1986 and Rs. 18,000/- in 12 monthly instalments upto December, 1987. Further, according to the complainant, the opposite party was required to deliver the possession of the plot after receiving the aforementioned amount upto December, 1987 in terms of the schedule, brochure and the allotment letter. When the complainant did not get the possession of the plot within one year, the complainant represented to the opposite party and he was informed vide letter dated 29.3.1988, Annexure C-6, that the work of development of plots had been delayed due to un-avoidable circumstances and that the complainant would be informed one month before likely date of handing over possession for exercising his option forgetting preferential plot on payment of extra charges as already intimated in the allotment letter, Annexure C-l. THE balance amount of the plot was recoverable with interest in monthly instalments in 6 years after having over the possession of the plot, payment schedule for which would also be intimated. However, later on, vide letter dated 22.6.1991, Annexure C-7, the complainant was informed by the opposite party that Plot No. 8, Type ''B'' in Sector-11, Main road under 4th Partially Self-Financing Scheme having total area of 138.24 sq. mtrs. in the Complex had been allotted to him. THE complainant was shocked to know that the total consideration of the plot was shown in the aforementioned letter as Rs. 1,25,798/- instead of Rs. 60,000/-. In that letter, no doubt, it was admitted that a sum of Rs. 36,000/- had already been paid by the complainant and a balance of Rs. 80,798/- in 72 monthly instalments is payable. Accordingly, the Hire Purchase Tenancy Agreement was executed between the opposite party and the complainant. THE complainant, however, took possession of the plot on 12.10.1992. According to the complainant, he has never agreed to pay the escalated price and that he should be awarded interest @ 18% per annum on the deposited amount to compensate him for the loss suffered by him. THE complainant is not only aggrieved against the enhanced and escalated price but also by another letter dated 6.8.1993, Annexure C-8, whereby the complainant has ''again been asked to deposit Rs. 47,278/- within one month on account of enhancement in land compensation as per me award of the District Judge, Shimla, dated 30.4.1993 in land acquisition proceedings. According to the complainant, enhancement of the price of the plot on account of land acquisition charges is unwarranted and illegal in the eyes of law. THE complainant consequently has claimed compensation aforementioned, the details of which have been given in paragraph 9 of the complaint. The opposite party has controverted the allegations of the complainant and raised various objections which include preliminary objections that the Shimla Development Authority has been dissolved and a new Authority known as Himachal Pradesh Nagar Vikas Pradhikaran was created by the Government of Himachal Pradesh under Section 40 of the Town & Country Planning Act and which has not been made a party and that the complaint is barred by limitation, Further, according to die opposite party, no time has been given by them to deliver the possession of the plot either in the allotment letter or in the brochure and, according to them, it is difficult to give specific time for the development of such a big colony as Shimla Town has a peculiar weather as well as topographic conditions and the execution of the Project has been delayed due to the reasons beyond its control and no deficiency can be attributed to it. Further, it cannot be said that there has been delay in delivering the possession of the plot to the complainant as the possession in the present case was offered to be delivered on 22.6.1991 within a reasonable period. The complainant, like other allottees, was also given an option to withdraw from the scheme as the price has escalated due to the reasons beyond its control and that the complainant, therefore, cannot have any possible grievance on this account. Furthermore, the enhanced cost of the plot on account of land acquisition charges has been demanded because of the enhancement of land compensation in land acquisition proceedings before the District Judge, Shimla. On the merits, the opposite party has stated that the complainant was offered to take possession of the plot on 22.6.1991 after completing all the codal formalities and it has been reiterated time and again by the opposite party that no time has been prescribed for handing over the possession of the plot and the complainant is bound by the terms and conditions of Hire Purchase Tenancy Agreement and the allotment letter and no interest can be awarded for delayed delivery of the possession of the plot as the plot has been delivered within a reasonable period.

We have heard the learned Counsel for the parties.

THE only point which has been hotly contested between the parties is whether there has been delay in the delivery of the possession of the plot to the complainant and whether the opposite party has been negligent and deficient in service by delayed delivery of the possession of such a plot to the complainant. The decision of this question depends whether any time was prescribed by the opposite party in terms of the brochure and the allotment letter for handing over the possession of the plot to the complainant. According to the complainant, the opposite party was required to give possession of the plot within one year of the allotment of the plot by December, 1987 by which date the complainant had made the entire payment in the first phase before delivery of the possession of the plot. On the other hand, according to the opposite party, no such stipulation has been made either in the brochure or in the allotment letter for delivery of such possession and the inference drawn by the complainant is wholly unwarranted, uncalled for.

IN order to appreciate rival contentions of the parties, we may at the very outset notice that the plot was allotted to the complainant under 4th Partially Self-Financing Scheme and according to the Scheme the claimant was required to make payment in two phases, first phase relates to the period before delivery of the possession and in the second phase, the payment has to be made after delivery of the possession. Furthermore, it goes without saying that the amount received by the opposite party from the complainant under Self-Financing Scheme has to be utilized by the opposite party for the development of the plot. IN the allotment letter dated 11.11.1986, Annexure C-l, the tentative cost of the plot was shown as Rs. 60,000/- and Rs. 9,000/- was paid by the complainant as earnest money alongwith the application and Rs. 9,000/- by way of first instalment on allotment before 9.12.1986 and Rs. 18.000/- in 12 monthly instalments was to be paid by the complainant from January, 1987 to December, 1987 @ Rs. 1500/- per month which in fact was admittedly paid by the complainant before December, 1987. The balance amount of the price of the plot was to be paid in 6 years alongwith interest from January, 1988. It may further be noticed from the letter of allotment, Annexure C-l, wherein scope of the Scheme has also been provided, it has been clearly stipulated that the complainant was required to pay the amount in the manner and mode as described above in two phases. At the cost of repetition, in the first phase, the payment of Rs. 36,000/- (Rs. 9,000/- as earnest money alongwith the application, Rs. 9,000/- by way of first instalment on allotment before 9.12.1986 and Rs. 18,000/- in 12 monthly instalments from January, 1987 to December, 1987 @ Rs. 1500/- per month) was to be made before delivery of the possession and in second phase, the balance payment of Rs. 24,000/- was to be made in 6 years starting from January, 1988. The allotment letter dated 11.11.1986, Annexure C-l, if read as a whole, leaves no scope of doubt that the amount of Rs. 36,000/- was to be paid by the complainant by December, 1987 before delivery of the possession and the balance amount of Rs. 24,000/- alongwith interest was to be paid by the complainant within 6 years from the delivery of the possession of the plot. The letter written by the opposite party to the complainant dated 29.3.1988, Annexure C-6, leaves further no manner of doubt that the possession of the plot was to be delivered by the opposite party to the complainant after the complainant has made payment upto December, 1987 in the manner and mode described in the allotment letter dated 11.11.1986, Annexure C-l. This letter, Annexure C-6, clearly reveals that the development of plot has been delayed due to alleged unavoidable circumstances and that the complainant would be informed one month before likely date of handing over the possession for exercising his option for getting preferential plot on payment of extra charges etc. It was further stipulated that the balance cost of the plot was recoverable with interest in monthly instalments in 6 years after handing over the possession of the plot, payment schedule for which would also be intimated. Both these letters i.e. the allotment letter dated 11.11.1986, Annexure C-l and letter dated 29.3.1988, Annexure C-6, if read together, make the position crystal clear that the possession of the plot was required to be given by the opposite party to the complainant after part of the price has been paid by the complainant upto December, 1987 in terms of allotment letter Annexure C-l. Since, admittedly, the part of the price upto December, 1987, has been paid by the complainant by December, 1987, it shall be reasonable to assume that the delivery of the possession of the plot under the Scheme was contemplated by the end of December, 1987 or within a reasonable period and in such circumstances, the complainant was fully justified in expecting that the possession of the plot shall be delivered to him by the end of December, 1987. In Self-Financing Scheme, on receipt of money from the complainant the plot should have been developed by December, 1987 or within a reasonable period thereafter. However, by giving due and reasonable allowance to the opposite party that due to the difficult topography of Shimla town and certain alleged circumstances beyond the control of the opposite party, we are of the opinion that one year more may be given to the opposite party for delivery of the possession of the plot beyond December, 1987 and that period should be considered as reasonable in the facts and circumstances of the case that is, the plot should have been delivered by the end of December, 1988. This will also be in consonance with our decision in Complaint No. 21 of 1990 Vijay Kumar Joshi v. State of Himachal Pradesh & Others, decided on 20.12.1996. Therefore, we accordingly hold that the opposite party is required to give the possession of the plot to the complainant by December, 1988. The possession of the plot has been offered to be delivered to the complainant, admittedly, on 22.6.1991 at a later stage.

THE negligence and deficiency in service on the part of the opposite party is writ large on the face of it that in spite of the fact that they were required to deliver the possession of the plot by December, 1988, they offered to deliver the possession on 22.6.1991 and that in the meantime the price of the plot had escalated. No doubt, the opposite party has taken usual stand as in other cases that because of difficult topography of Shimla Town and certain other alleged unforeseen circumstances beyond the control of the opposite party like complex process of construction-non-availability of material, labour etc. they have not been able to develop/construct the plot/house within time but there is no material on record to substantiate such assertions. This question has also been considered by us in Vijay Kumar Joshi''s case (supra) and such contentions were repelled.

THE next question that arises for consideration is that what compensation should be awarded to the complainant for delayed delivery of the possession of the plot with the result that he was not able to construct his house within time. We have in Vijay Kumar Joshi''s case (supra) and in Complaint No. 15 of 1996 Rameshwar Sharma v. Himachal Pradesh Nagar Vikas Pradhikaran decided on 18.4.1997 and in other similar cases, held that the complainant should be awarded 18% interest per annum in order to compensate him for the loss on account of delayed delivery of the possession of the plot the house. Such compensation has been awarded having regard to various circumstances like delayed delivery of the possession of the plot/house, loss of occupation of the plot/house, charging of interest @ 18% per annum by the opposite party themselves for the delayed payment of instalments payable by the complainant, mental suffering, agony and other totality of the circumstances. Following these decisions, we are of the opinion that the complainant is entitled to interest @ 18% per annum on the amount of Rs. 36,000/- with effect from 1.1.1989 to 22.6.1991. However, other relief(s) prayed for by the complainant cannot be allowed.

The complainant will have to pay enhanced cost of the plot on account of enhanced land compensation as required to be paid vide letter dated 6.8.1993, Annexure C-8. The awarding of land compensation by the District Judge, Shimla, is not a consumer dispute and we cannot entertain such a dispute. Further, the Scheme itself being a Self-Financing Scheme, if the complainant is not required to pay this amount because of enhanced land compensation, then who else would pay such amount. Furthermore, the enhancement in land compensation could not have been anticipated by the opposite party and as such there is no deficiency in service.

NO other contention was raised by the opposite party except that faint attempt was made to show that the complaint is time-barred. We are unable to agree to such submission. The letter dated 6.8.1993, Annexure C-8, vide which enhanced land compensation has been required to be paid by the complainant to the opposite party has been challenged in the complaint and the complaint was filed on 3.11.1993. The possession of the plot was also taken on 12.10.1992. NOthing has been shown how the complaint is time-barred. In the light of what is discussed above, the opposite party is directed to pay interest @ 18% per annum to the complainant to compensate him for the loss suffered by him on account of delayed delivery of the possession of the plot on the amount of Rs. 36,000/- with effect from 1.1.1989 to 22.6.1991 when the possession of the plot was offered to be delivered to the complainant. The interest so ordered to be paid can be adjusted by the opposite party against the balance payment the complainant has to pay if not already paid within a period of one month. In case the balance amount already stands paid, the amount of interest as directed shall be payable within one month to the complainant. In case of failure to do so, the complainant shall further be allowed interest @ 18% per annum on the aforementioned amount from the date of order till actual payment. The other relief(s) prayed for in the complaint are disallowed. The complainant shall be entitled to costs in the present proceedings from the opposite party which we assess at Rs. 1,000/-. Complaint allowed with costs