REGIONAL ENGINEER, KERALA STATE HOUSING BOARD vs S. ROSHAN KUMAR

THE opposite parties in O.P. No. 1031/93 of the District Forum, Kozhikode, are the appellants. Appeal is from the order of the Forum dated 15.5.1996.

THE complainant''s case is as under. THE opposite party advertised on 2.5.1980 that the plots for house building will be allotted in the Calicut Medical College Housing Scheme. THE complainant applied for a house plot by paying a registration fee of Rs. 2,500/-. In response to the first opposite party''s letter dated 20.9.1984 application for allotment was made by the complainant on 1.10.1984. Plot No. 52 was provisionally allotted to the complainant on 15.12.1984 and this was subsequently confirmed by letter dated 15.2.1985. This letter confirmed that plot No. 53 is finally allotted to the complainant as demanded by the opposite parties. Sale price of Rs. 21,940/- was also remitted in addition to the registration fee. By a letter dated 22.4.1987 the opposite party requested the complainant to report at the site. Accordingly he presented himself when he was ordered to pay Rs. 1,207/- as extra cost with Rs. 29/- as penal interest. This amount was also remitted. On 22.8.1987 the complainant received a letter from the opposite party asking him to take over the plot and the plot was taken possession of. THEreafter the complainant requested the opposite party for permission to construct a house on the plot. Follow up made by the complainant was not successful to the surprise of the complainants. By a letter dated 2,9.1991 the first opposite party asked the complainant to make a better selection if necessary. THE complainant was fully satisfied with plot No. 53 and hence did not go for a better selection. Thus the complainant has fulfilled all his obligations and what remained was signing of formal agreement. Subsequent to all these the opposite parties informed the complainant that plot No. 53 is earmarked for a shopping complex. This was by letter dated 21.7.1993. THE opposite parties were in duty bound to execute the sale deed in favour of the complainant and there was long delay in taking proper action by the opposite parties. Alleging deficiency of service after issuing notice the complainant approached the Forum claiming damages as follows: (a) difference in market price of the plot: Rs. 1,50,000/-; (b) escalation in cost of construction of a house Rs. 1,92,000/-; (c) compensation for mental agony, Rs. 20,000/-; (d) compensation for failure to inform the correct position regarding plot and suppressing information etc., Rs. 10,000/-.

The opposite parties appeared and filed version denying deficiency of service. There was only. a provisional allotment and as per the conditions the allottee should enter into an agreement for taking possession of the property and sale deed will be executed only after the full land value as fixed by the Board is paid. In this case there was only a provisional allotment. The additional amount of Rs. 1,207/- of excess land value and penal interest of Rs. 29/- was not remitted by the complainant. No plan for construction of the building was submitted for approval. The Board was forced to change the lay out as per the requirement of the Calicut Corporation and the Calicut Development Authority. As per the new lay out plot No. 53 with some other adjacent plots were earmarked for a shopping complex. He was given choice to select some other plots which he did not do. The quantum of damages was also disputed through the version.

The District Forum after going through the evidence found that the whole sale price for the plot was paid by the complainant, the complainant was always prepared to execute the agreement and there was exorbitant delay on the part of the opposite parties in finalising the same, The Forum also found that the opposite parties have failed to prove that it was due to reasons beyond their control that plot No. 53 was allotted for construction of a shopping complex. The complainant was deprived of plot No. 53 due to deficiency of service. On these findings the following amounts were awarded as compensation towards loss of difference in land value Rs. 50,000/- towards loss on account of increase in cost of a proposed building Rs. 1,00,000/-, towards mental agony Rs. 10,000/-. Thus a total of Rs. 1,60,000/- was granted as compensation. It is aggrieved by this the opposite parties have come in appeal.

WE perused the available documents and heard the arguments. The learned Counsel for the appellant submitted that the complaint itself is time barred and hence no relief can be granted by the Forum. The argument was that the complainant was asked to choose an alternate plot by communication dated 22.8.1991. He did not do so. Hence plot No. 53 was converted as a site for shopping complex and communication to that effect given on 21.7.1993. As such the complaint filed in September, 1993 is time barred. From letter dated 2.9.1991 from the appellant what we see is that was requesting the complainant to make a better selection if necessary. The fact that the plot is earmarked for shopping complex was informed to the complainant only by letter dated 21.7.1993. The cause of action arises on the said date and in September, 1993 the complaint is filed. WE hold that me complaint is not time barred. The next argument advanced by the learned Counsel for the appellant is that any contractual relationship will arise between the allottee and me Board only when an agreement as required under Clause 8 is executed. The complainant in not having executed such an agreement it should be deemed that there is no jural relationship between the parties. In this connection it may be noted that the complainant had paid the price for the plot in full as demanded by the appellants and it was the duty of the appellants to take steps for finalising and executing the agreement. Though it is stated in the appeal that repeated requests were made to the complainant to come forward and execute the agreement, there is nothing in evidence to prove that such a request was ever made.

FURTHER argument that was advanced by the learned Counsel for the appellant was that the complainant did not pay the excess price of Rs. 1,207/- and the penal interest of Rs. 29/-. It is evident that the complainant had remitted this also because by a communication dated 22.8.1987 the complainant was asked to take over the plot No. 53. The next argument was that the Chief Town Planner and the Calicut Development Authority modified the scheme whereby plot No. 53 and some other adjacent plots were earmarked for a shopping complex. Hence it was beyond the control of the appellant to allot plot No. 53 to the complainant. The District Forum has held that there is no evidence produced by the opposite party to establish that it was due to reasons beyond the control of the appellant that plot No. 53 was allotted for construction of a shopping complex. Before us also apart from arguing that the re-allotment of plot No. 53 for the shopping complex was done by Calicut Development Authority evidence was adduced to establish that this allotment for shopping complex was objected to by the appellant. No effort seems to have been taken by the appellant to see that plot No. 53 which was allotted to the complainant is not disturbed. The above discussion leads us to the conclusion that mere is deficiency in service on the part of the appellant in not having taken proper and timely action to safeguard the interest of the allottee. The only question to be considered is regarding compensation payable. The complainant claimed Rs. 1 lakh as compensation for taking away plot No. 53 from him. The Forum granted Rs. 50,000/- (Rupees fifty thousand only) on the ground that land value has considerably increased between 1987 and 1993. We find that the complainant was invited by the opposite party to select some other plots instead of plot No. 53 and the complainant did not come forward to do this. Admittedly plot No. 53 is more conveniently located. Naturally he was disappointed by losing this plot. Considering. these, we are of the opinion that an amount of Rs. 10,000/- will be sufficient compensation and we award the said amount.

THE next item claimed by the complainant is the additional cost of construction of a proposed building due to increase in the price of materials and labour charges. THE amount claimed under this head is Rs. 1,20,000/- against which Rs. one lakh was allowed by the Forum. In the nature of the transaction between the parties this claim for compensation can be considered as a claim for remote damages. Hence we reject the claim. THE third head of claim is for Rs. 10,000/- towards compensation for failure to inform the correct position regarding plot and suppressing information etc. We have considered this aspect also when we awarded Rs. 10,000/- as compensation for deficiency in service.

IN the circumstances, we direct the opposite parties to pay a total amount of Rs. 10,000/- as compensation with 15% interest from 15.5.1996 namely the date of the order of the District Forum. This will not in any way affect the right of the complainant to seek refund of the deposit made by him with the opposite party. Appeal disposed of.