Rama Kant Gupta vs U.P.Avas Evam Vikas Parishad

THIS is a complaint which has been moved by Sri Rama Kant Gupta, Advocate, Kanpur against U.P. Housing and Development Board and others. Briefly stated the allegations contained in the complaint are as follows : The complainant registered himself for allotment of a house in Kanpur by depositing Rs. 5,000/- on 23.2.1979. The complainant had filled up the registered form alongwith the draft. The opposite party Housing Board had floated a scheme for housing for different income groups in Kanpur on 26.12.1978. The complainant was registered and the registration certificate was issued to him. From 1978 to 1986 no information in regard to allotment of house was given to the complainant whereas as per the scheme of the opposite party the houses against which a notification was made by the Housing Board in 1978 were to be constructed within two years. The registration for allotment was for Mayura scheme and was for the middle income group. However, the complainant was informed that the area of the MIG house in Mayura scheme has been reduced. The complainant, therefore, approached the Lucknow Head Office of the Housing Board and was asked to deposit Rs. 10,000/- more in order to become eligible for allotment of a higher income group house. An amount of Rs. 750/- was also deposited by the complainant as fees for category change of the house. Therefore in 1979 the complainant became the registered person for HIG house. There HIG houses were covered under the Niharika scheme and in each house a provision for a drawing- cum-dining room, kitchen, toilet and three bed rooms was made.

THE opposite party without any information reduced the area of the house in the project and also escalated the cost of the house by 11/2 times, but because of compulsion of having a house, he had to apply for being included in the draw of lots for allotment of the house. In the draw of lots held on 26.3.1987, the complainant was allotted house No. 195 and the opposite party Housing Board on 30.7.1987 asked the complainant to deposit a sum of Rs. 52,514.85. THE amount was not deposited by the complainant immediately and he was allowed one month''s time. He later on deposited a sum of Rs. 53,040/- on 20.5.1987 with the opposite party. THE monthly instalment was also increased by 11/2 times and he paid monthly instalment of Rs. 2,470.85 on 20.5.1987. THE monthly instalment was fixed at Rs. 2,470.85 which was to be deposited in 144 instalments. THE cost of the land alongwith house was Rs. 36,284/- as told by the opposite party against which the complainant had deposited an amount of Rs. 15,000/- and interest which had also accrued on this deposited amount. Inspite of this a lumpsum sum of Rs. 52,514.85 was asked by the opposite party alongwith 144 monthly instalments. Thus in this way the cost of the house has come to Rs. 5 lacs whereas in the demand letter the cost of the house was shown as Rs. 1,37,624/-. Till 7.11.1987 regular payment of the monthly instalment was made by the complainant and the physical possession of the house was taken over by the complainant on 18.11.1987. On receiving the possession letter the complainant came to know that the HIG house No. 195 allotted to him contained only one bed room, one drawing-cum-dining room, one kitchen and one toilet, a small varandah and a small court-yard. THE plaster was weak and it had cracked at various places. Space was left for further construction in future and, therefore, the complainant started some construction work. THE cement for joining the bricks right from the beginning to the roof was not used and there was no strength on the wall. THE rubbish of the hard coal fully used by Panki Power House has been used in the building construction instead of cement and, therefore, the bricks used for construction has not joined whereas some other HIG houses are constructed with cement, but cost of both type of houses is the same. THE used ash of Panki Power House is disposed off by paying charges to the contractor by the Power House and this ash was used for construction of the house. This act of the opposite party was an unfair trade practice and amounted to fraud. THE costing of the house was done by the opposite party and the demand notice was sent on the basis of the cost so worked out. In December, 1987 the complainant met the Executive Engineer of the Housing Board and Estate Management Officer of that organization. He made a request that the cost of the house would become high in case the payment is made in instalments. He, therefore, wanted to deposit the entire outstanding cost of the house with the request that opposite party reduces the cost of the house because of the poor quality construction as stated above but no reply was received from the Housing Board. THE complainant, therefore, later on changed the weak plaster and carried out other repairs to give strength to the house. New beams were constructed and the complainant has spent a sum of Rs. 75,000/- in putting the house in order. Again a notice was sent to the opposite party on 9.3.1989 wherein it was requested that the complainant be informed of the lumpsum to be deposited after adjusting the reduced cost of the land because of the bad quality material used but no reply was given to his notice. The complainant was, therefore, compelled to institute a criminal case against the officers of the Housing Board in the Court of Metropolitan Magistrate, Kanpur under Sections 420,504 and 506 of the Indian Penal Code. Accordingly the opposite party Nos. 2 and 3, the Executive Engineer and the Estate Management Officer were summoned by the Court of Metropolitan Magistrate, Kanpur in Criminal Case No. 121 /90 but in the Criminal Revision No. 118/90 further proceedings under the case were stayed by the District Judge which is still pending in that Court. Ultimately a recovery certificate of Rs. 1,27,841/- was issued against the complainant. On receipt of this notice the complainant gave a second notice to the Housing Board on 21.12.1991 and the same was received by the Housing Board on 5.3.1991, but no reply was received. In the notice the complainant had demanded from the opposite party that the cost of Rs. 75,000/- incurred by him in giving strength to the house by taking up construction work be returned to him and by adjusting this amount, the outstanding against him must be intimated to him so that he can pay entire amount in lumpsum. However, no reply was given. The complainant, therefore, finding no other alternative lodged a claim before the State Commission and asked for Rs. 1,00,000/- as the amount of compensation because of sub-standard material used in construction of the house which amounts to playing fraud with the complainant, a sum of Rs. 70,000/- spent by him in re-constructing the house. Also adjustment of the amount already deposited was demanded alongwith direction to the Housing Board that the remaining amount of outstanding be intimated to the complainant. It was also claimed that the penal interest charged by the opposite party at the rate of 18% should be waived.

The opposite party, U.P. Housing and Development Board filed written statement. The opposite party stated that the case is not covered under the Consumer Protection Act. It was admitted that the complainant had deposited the money for booking of the house. The amount of registration charges was increased as per rules of the Housing Board which is published in newspapers from time to time. In the draw of lots, the house in question was allotted to the complainant and possession was given on a definite date. The houses were constructed as per norms laid down by the Housing Board for the scheme concerned under the supervision of qualified Engineers and there was no defect in the construction. The same type of houses were allotted to other persons and there is no complaint from them in this behalf. In the allotment letter itself the entire cost of the house has been given and there is no question of intimating to the complainant the lumpsum amount to be paid for the house as the allotment letter gives the details of the pricing, both by cash and by instalments. The possession letter was signed by the complainant on 17.11.1987 and 18.8.1987. The hire purchase agreement was entered into between the opposite party and the complainant. Since the complainant had not been depositing the amount due to which the recovery certificate was issued against him. The action is being taken against the complainant for his default in not depositing the amount. The complainant also approached the Hon''ble High Court, Allahabad and raised the same issues and the writ petition is pending. It was also stated that on 18.7.1987 the complainant had taken the possession of the house after physically inspecting the house and had signed on the possession letter after satisfying himself.

WE have scrutinized the evidence placed on record. WE have also heard the arguments advanced by the two parties. The complainant, who was present in person, has argued that the amount of Rs. 52,514.85 was asked to be deposited and he complied with the demand of the opposite party. Possession was taken over by him on 18.7.1987. When certain defects were found in the house because of sub-standard quality of the material used, he gave a notice to the Housing Board to compensate for the losses and adjusting the outstanding cost of the house so that he can make payment in lumpsum but no reply was given. On the other hand, learned Counsel for the Housing Board argued that the case is time barred. The possession was given in 1987 and the complaint was filed after more than 4 years. It was also argued by him that the complaint is not maintainable as the possession of me house in question was given to the complainant after he was fully satisfied with the house before it was physically handed over to him. A careful examination of the documents placed on file will make the position of this case clear. It is admitted that an amount of Rs. 15,000/- as registration amount was deposited by the complainant. It is also admitted that house No. 195 was allotted to the complainant. The letter of allotment which is Annexure 3 of the complaint clearly goes to show that the total cost of the house measuring 253 sq. mts. is Rs. 2,36,294 / - which includes cost of land and cost of construction. The said allotment letter specifies the method through which the payment to the opposite party is to be made in case the house is taken on hire purchase basis. On hire purchase basis a sum of Rs. 52,514.85 was to be paid first and then monthly instalments were to be paid at the rate of Rs. 2,470.85 in 144 instalments. There is dispute between the parties that the complainant opted for the hire purchase scheme and in case he wanted the entire cost to be paid in lumpsum, the same could have been done by him on the basis of allotment letter detailed above and there was no need of giving notice to the authorities of the Housing Board in this regard. The point of dispute is the alleged inferior quality of the house for which the complainant had to remove defects by undertaking construction of the value of Rs. 70,000/- and it is this amount of Rs. 70,000 / - which the complainant wanted to be adjusted by the Housing Board before he could pay the amount in lumpsum. The case of the Housing Board is that such type of houses were allotted to a number of registered persons and no complaint was received. The possession letters (Annexures 4 and 5 of the complaint) also indicate that the house was allotted to the complainant and he made his signature on the possession letters (Annexure 5). It is unbelievable that in the draw of lot the house in question in Kalyanpur Yojna No. 1 was allotted by a lottery draw on 26.3.1987 in favour of the complainant and the physical possession was given on 17.11.1987, a period of more than 8 months had passed and in between the complainant did not see the house allotted to him. Normally the resident allottees belonging to the same place see the progress of the house and visit the place of the house. Annexure 6 of the complaint has been signed by the Engineer concerned and the complainant himself. This shows that the possession was taken without any objection. The complainant himself signed over the certificate that "possession of house No. 195 taken over in good condition with fittings etc. as per the inventory which is fixed and verified in the said house". Taking for a moment that once the complainant took the physical possession of the house and has started living therein, he found that there were defects in the construction and the material used was below standard and, therefore, he had to spend Rs. 70,000 / - on making the house habitable, evidence produced will have to be examined. The opposite party rebuted the allegations that there was defect in the construction. On the other hand the complainant has filed a copy of the statement made by one Jamaluddin, a witness in Criminal Case No. 121 / 1990. A perusal of this statement goes to show that Jamaluddin is a masion and he was a witness produced by the complainant in the Criminal Court. He stated in that Court that he repaired the house, the plaster of which was broken at various places and the bricks were joined by power-house coal rubbish. The statement of the masion cannot be relied upon (Annexure 15 of the complaint). Firstly the witness was the one produced by the interested party. Secondly the statement of one single masion does not go to prove that there was latent defect in the construction of the house. For proving the latent defect, the report of a qualified expert or a chartered engineer should have been filed on oath. There is no such statement of an expert. Therefore, we are unable to accept the plea that there was latent defect in the construction of the house specially when the complainant had satisfied himself of the house in question before he took possession of the house and later on no report of any qualified expert was produced.

THE facts in the case seem to speak a different story. Since the complainant stopped paying the instalments, therefore, a recovery certificate was issued (Annexure 19 of the complaint) by the Housing Board through Collector, Kanpur. On the basis of this recovery certificate, recovery proceedings under the provisions of Land Revenue Act were taken against the defaulter who is the complainant. THE complainant even filed a writ petition before the Hon''ble High Court at Allahabad. THE interim order of the Hon''ble High Court provided that the arrest of the petitioner shall remain stayed until 12th April, 1991 and the recovery through coercive measures shall also be stayed on 5.4.1991. Thus the interim order of the Hon''ble High Court was upto 12.4.1991. A perusal of the complaint will go to show that the complaint was filed on 10.4.1991. Thus it appears that after exhausting other remedies available to him, the complainant came to the Consumer Court. Before that the complainant had already made a representation to the Collector of the District arid had also filed a criminal case against the Executive Engineer and the Estate Management Officer of the opposite party in 1990. THE possession was given in 1987. In case there had been a latent defect and the same had been removed by the complainant by spending Rs. 70,000/-, he should have at that stage filed the case before this Commission if he was not satisfied with the officers of the opposite parties who had not heard his request. We find that no representation to the Housing Board was made immediately after taking over the physical possession of the house. We come to the conclusion that the case is time barred as well. Under the circumstances we do not find any substance in the complaint lodged by the complainant and the same is liable to be dismissed. ORDER THE complaint is dismissed. THEre will be no order as to the cost. Let copy as per rules be made available to the parties. Complaint dismissed.