RAM SWASTH SINGH RATNAKAR vs BHOPAL DEVELOPMENT AUTHORITY

THESE nine Appeals No. 846, 847, 848, 849, 850, 851, 852, 853 and 854 of 1997 have been filed against orders dated 10.10.1997 passed by District Consumer Disputes Redressal Forum, Bhopal in their Case Nos. 272, 284, 278, 277, 270, 276, 285, 280 and 271 of 1995 respectively. All these nine appeals are being disposed of by one composite order because the District Forum has passed exactly similar order in all these cases. The facts and circumstances, law points and various other issues involved are also exactly identical. The District Forum has rejected the complaints and directed the complainants to pay Rs. 500/- as proceeding expenses to the opposite party.

HEARD the arguments of both the parties and perused and records of the case. The facts of all these cases are that the complainants had booked MIG houses/flats with the opposite party under self-financing scheme in seven acre scheme in Saket Nagar, Bhopal. Out of nine complainants seven had booked "C" type houses and two complainants had booked "H" type houses. At the time of booking, the costs of the houses as fixed by BDA were Rs. 2,86,250/- for "C" type houses and Rs. 3,14,900/- for "H" type houses. After collection of registration amount of Rs. 30,000/-, the Bhopal Development Authority issued allotment orders to these complainants directing them to deposit the balance of the cost of the house in four exactly equal instalments fixing last dates for payment of each instalment. The dates were fixed in such a way that two months'' time was given for payment of each instalment. Thus all the four instalments covering entire cost of the house were to be paid within a period of eight months from the date of issuance of allotment order. Each instalment for "H" type house was Rs. 71,225 /- and for "C" type house was Rs. 64,062.50 paise. Out of these nine complainants, seven paid all the four instalments exactly within the specified period of eight months. One of the remaining two delayed payment of only fourth instalment by two months and the other one delayed by three months. All of them had also paid escalated cost, advance lease rent, service charges, interest etc., in lump sum within a period of three weeks on receipt of demand from BDA. This amount of escalated cost etc. was only 2 to 8% of the original cost already deposited.

But the delivery of possession of their houses was delayed by eight to eighteen months from the date of payment of the fourth and last instalment of entire original cost of the house. Letters for payment of escalated cost etc. were issued by BDA after about 8 to 10 months of payment of this fourth and last instalment of original cost and even after payment of escalated cost within three weeks, delivery of possession of houses was delayed by six months in cases of seven complainants.

THE District Forum counted the period of delay from the date of payment of escalated cost and lease rent etc. and not from the date of payment of last instalment of the entire cost of the house as quoted in the allotment orders and said that six months delay does not call for payment of any interest. It is against this finding of the Forum, the complainants have come up in appeal before us. Before we go into the details of the case, we would like to explain that the dictionary meaning of Instalment is : "Equal payment for something, spread over an agreed period of time". The escalated cost and advance lease rent etc. were not a part of principal amount and amounted to only 2 to 8% of the original cost of the house already deposited.

THE District Forum has dealt with this most important point of delay in delivery of possesion, very cursorily in just one paragraph without due appreciation of facts and circumstances submitted before the Forum by the complainants. On a perusal of the records of the Forum, we find that the following documents of which photocopies have been submitted in all the cases by the complainants are very relevant for proper appreciation of facts of the cases as well as mental and financial stress and strain undergone by the complainants. (i) By 23.2.1993, all these complainants had paid more than half the price of the house to the BDA. Letter dated 23.2.1993, (Ex. P-7) submitted by all the members of this scheme to the Chairman, BDA mentioned as under in paragraph 7 : "All the members are taking loan from various leading agencies and interest is being paid every month. Therefore, kindly ensure that the flats are handed over to the applicants as early as possible". (ii) (Ex. C-ll) is their reminder dated 24.8.1993 to the Chairman, BDA complaining against slow progress of work and requesting for early construction. The para 4 of this letter is quite important, which is as under : "You will kindly appreciate that we are purchasing the flats under self financing scheme and we have already made full payment quite earlier and the recovery of loan has started. If the flats are not handed over, we will be deprived of HRA and interest subsidy from the company causing financial hardships to all of us". (iii) (Ex. C-12) is their another reminder dated 26.11.1993 to Chairman, BDA as under : "We have already paid the full amount of flats ago (ranging from 3 to 10 months before) but we have not yet been given possession of flats. It is strange enough to know that out of 21 MIG "C" type, foundation for flats for 9 "C" type has not yet been laid down even after collecting the amount from individuals long before which is a clear cut mischief and misuse of hard-earned money of the individuals". (iv) (Ex. C-XVIII) is another reminder to BDA dated 26.4.1994 submitted after 8 to 12 months of payment of full cost of the house complaining that the houses are still under construction. (v) Exhibits C-XX, C-XXI and XXII are again reminders to BDA dated 10.6.1994, 19.8.1994 and 13.9.1994 for delivery of possession of house.

Timely payment of instalments of the entire original cost of the house shows the sincerity of the complainants and these representations indicate their mental and financial stress and strain. We do not know what action BDA took On these seven representations signed and submitted by dozens of members of the scheme. BDA''s reply is silent on this point. Nor has the BDA denied receipt of these representations. However, except for one, all the representations bear signature and seal of the BDA as acknowledgement of receipt and there is nothing to doubt their genuineness.

THEREPLY by BDA on 24.1.1996, mentions as under : "Houses were constructed within time but the complainant himself did not execute lease deed though repeated letters were written to him - still the BDA gave possession - "the complainant himself is responsible for delay in taking possession". In subsequent paragraph, the BDA has written that house was under "self financing scheme" and hence the pace of construction was according to the pace of payment of the instalments.

THE affidavit filed by Shri K.D. Choudhary, Authorised Officer, BDA also contains exactly similar statements as given in reply filed by BDA as quoted above. The reply and the affidavit filed by BDA contain no factual details. Not a single document or letter or affidavit has been furnished to indicate as to when even a single letter was sent to any of the complainants asking him to or reminding him to execute lease deed and obtain possession. The order sheet dated 14.8.1996 of the files of District Forum clearly mentions that copies of affidavit and documents filed by the complainant were given to the opposite party but the opposite party i.e. BDA filed nothing in rebuttal. There is absolutely nothing on record to show that the houses were ready for delivery of possession before the last reminder dated 13.9.1994 of the complainants. Even the letters dated 7.4.1994 of the BDA sent to complainants asking them to deposit escalated cost etc. did mention that construction of house in question was completed or that house was ready for delivery of possession. When all the complainants without any exception, in compliance to this letter dated 7.4.1994 had deposited each and every Pai, asked for within three weeks on or before 30.4.1994, why would have all of them themselves delayed taking delivery of possession for another six months, is a point for consideration.

Another important point to be noted here is that the BDA has in his reply supported by affidavit of his Authorised Officer argued that since the houses were being constructed ''under self financing scheme, the pace of construction was according to the pace of payment of the instalments. The instalments of the full cost of the house were fixed by BDA and the duration of period of two months between each instalment was also fixed by BDA. That means each instalment was being utilised in two months'' time. Thus according to BDA''s own version the construction of the houses should have been completed within two months after the payment of the fourth instalment of the entire cost of the house, i.e. by 30.6.1993. But the houses were still under construction even one year later according to the documents C-11, C-12, C-18, C- 29 etc. quoted above.

THE complainants had discharged their entire liability by making payment of full original cost of the houses amounting to Rs. 2,86,250/-or Rs. 3,14,900/- as the case may have been after making payment of fourth and last instalment. It was now the responsibility of the BDA to intimate escalated cost and lease rent etc. to the complainants immediately. But the BDA did not intimate for about eight to ten months. Complainants who had paid approximately three lacs of rupees on due dates within a period of eight months were already waiting for BDA''s intimation of escalated cost and lease money etc. as is established by the fact that they made payment immediately on demand within less than three weeks and were keenly awaiting delivery of possession by the BDA. THE District Forum has been totally wrong in calculating the period of delay from the date of payment of escalated cost etc. which amount was less than 8% of total cost already paid and for which the demand was made by the BDA after eight to ten months'' silence, and which amount could not have been paid by the complainants without demand, having been totally unaware of the amounts subject-wise. The District Forum has not taken into consideration in their order, any of these vital points and has very erroneously treated payment of escalated cost and lease rent etc. as "fifth and final instalment", and dismissed the complaint.

THE pleadings and counter pleadings in these cases are almost similar as were in appeal case decided by Hon''ble National Commission in (1986-1996 Consumer-2598 NS) wherein the Hon''ble National Commission has held as under : "Housing allotment of flat - delay in delivering possession of flat - contention of the appellant that construction had been completed in time but the respondents were not taking possession is not borne out by facts on record - contention not tenable - appeal dismissed". In the instant cases also, it is not established by facts on record that the construction had been completed in time but the complainants did not take possession. In the result, the appeals are allowed and the orders of the District Forum are setaside. The BDA charges 16.5% interest from its allottees in case of delay in payment by them. As such we hereby direct that the BDA shall pay to the complainants interest at the rate of 16.5% on the entire amount deposited by them from ninety first day of the date of payment of fourth and last instalment of the original entire cost of the house till the date of delivery of possession of the houses. As compensation for harassment, mental agony and financial constraints suffered by the complainants and also the cost of proceedings incurred by them, we direct further that the BDA shall in addition pay interest at the rate of 0.5% on the entire original cost of the house paid w.e.f. the date of payment of fourth and last instalment till the date of delivery of possession of the house. Appeals allowed. _____________