RAMASHISH SINGH Vs CHAIRMAN, BIHAR STATE HOUSING BOARD & 4 ORS

The complainant/petitioner applied for allotment of a MIG flat with the respondent. After registration on payment of Rs. 25/-, he deposited an earnest money amounting to Rs. 15,000/- with the respondent on 15.09.1989. Flat No. M/B-6 in Barari, Bhagalpur was allotted to him for an estimated price of Rs. 4.25 lacs. The case of the complainant is that on receipt of information of allotment, he visited the allotted house and found that it was a very old house which had not been cared for years and as a result of which, it was about to collapse. The complainant/petitioner, vide his letter dated 16.06.2000, requested the respondent to allot another house to him or in the alternative, either allot another house or refund his money with interest.

The respondent Board vide its letter dated 25.07.2000, informed him that no change of the house was possible. The complainant wrote yet another letter dated 09.01.2001 to the respondent, stating therein that the house was totally inhabitable and it could be inspected by the concerned Executive Engineer. However, the respondent did not change the allotment made to the petitioner nor was the earnest money deposited by him refunded to him alongwith interest. Being aggrieved, the complainant approached the concerned District Forum seeking the following reliefs:

(i) The amount of earnest money deposited By the complainant Rs. 15,000/-

(ii) For causing loss of interest @ 18% per annum from 15.9.1989 to 31.3.2002 Rs. 33,870/-

(iii) Compensation for causing mental injury and agony Rs. 60,000/-

(iv) Costs of notice etc. Rs. 450/-

Rs. 1,29,320.00

The complaint was opposed by the respondent on the ground that the allotment as per the prospectus was made on ''''as is where is" basis and therefore no change was possible.

The District Forum, vide its order dated 13.02.2007, directed the respondent to allot another flat to the petitioner/complainant at the price of Rs. 1020920/- and also pay a sum of Rs. 5,000/- to him as the cost of litigation.

Being aggrieved from the order passed by the District Forum, the respondent approached the concerned State Commission by way of an appeal. Vide impugned order dated 07.08.2014, the State Commission modified the order passed by the District Forum by directing the respondent to refund the earnest money alongwith interest as per the applicable regulations of the Board. Being aggrieved, the petitioner/complainant is before this Commission by way of this revision petition.

The first question which arises for consideration in this case is as to whether the flat awarded to the complainant/petitioner was fit for habitation or not. The learned counsel for the respondent Board has pointed out that no Architect or Engineer was examined by the petitioner/complainant before the District Forum to prove that the flat allotted to him was not in a habitable condition. I therefore, find that while responding to the letter of the complainant dated 16.06.2000, the respondent did not controvert his allegation that the flat allotted to him was not fit for occupation. The complainant wrote yet another letter dated 09.01.2001 to the respondent, again alleging that the flat allotted to him was not fit for human habitation and also requested that the said house be inspected by the concerned Executive Engineer. Again, no communication was sent to the complainant controverting the allegation made in the letter dated 09.01.2001. Thus, the allegation of the complainant in this regard remained uncontroverted till the matter reached the District Forum.

I also find that even in the written statement filed before the District Forum, the respondent did not claim that the flat allotted to the complainant was fit for habitation. In the absence of such a plea, the complainant was not required to examine any Engineer or Architect to prove his allegation that the said flat was not fit for human habitation. The respondent also did not examine any official of the Board to prove that the flat allotted to the complainant was fit for human habitation. Even if the respondent was allotting a flat on "as is where is" basis, it could not have allotted a flat which was not fit for human habitation. Only a flat free from any defect and fit for human habitation could have been allotted by the respondent Board to the petitioner/complainant or for that matter, to any registrant. Allotment of a flat which was not fit for human habitation by itself is a deficiency in the service rendered to the consumer.

I however agree that in the absence of such a prayer, the District Forum was not justified in directing the allotment of a flat to the complainant.

The learned counsel for the respondent submits that the interest to the complainant cannot be awarded at a rate higher that the rate prescribed by the Board. I however find no merit in this contention. In a case where deficiency on the part of the Board in rendering service to the complainant is made out, compensation in the form of interest can be awarded to the registrant. In any case, irrespective of whether the compensation is awarded in the form of interest or it is awarded separately as a lump-sum amount, makes no difference as far as the respondent Board is concerned.

For the reasons mentioned hereinabove, the impugned order is set aside and the respondent Board is directed to refund the earnest money deposited by the petitioner/complainant alongwith compensation in the form of interest on that amount @ 12% per annum from the date of deposit till the date of payment. The respondent Board is also directed to pay a sum of Rs. 10,000/- to the complainant as cost of litigation. The aforesaid payment shall be made within four weeks from today.

The revision petition stands disposed of accordingly.