S. THANASEKARAN vs City And Industrial Development Corporation

THE main question involved in this case is "Whether an allottee can challenge the draw of lots conducted through computer, without any rhyme or reason? "

IN June, 1987, ''City and Industrial Development Corporation '' of Maharashtra State (to be called as ''CIDCO '' herein after) floated a Scheme under ''Self-Financing Outright Purchase Scheme '' and brought out a booklet called ''Demand Registration Survey 87 '', containing types of tenements in seven Townships in Navi Bombay. The booklet further mentions that construction of the houses would start in early 1988 and the houses were supposed to be completed before the Monsoon of 1990. From the booklet it appeared that the type of houses was to be given as per income of the applicants. S.Thanasekaran, the petitioner applied for 40 sq.mtr tenement on 16.07.1987 and made initial payment of Rs.4,000/-. 40 sq.mtrs tenement was to cost Rs.1,10,000/- because the original monthly income group of the complainant fell in the category of Rs.2,501/- and above.

There was a press advertisement that Tenders for construction of more tenements were issued and allottees would get the houses by December, 1992. The complainant received letter dated 05.10.1990 which besides other facts also mentioned that the price of the tenement may increase by 10%. The price of the tenement was re-fixed in the year 1990 at Rs.1,56,780/-, the price was thus increased by 42.53%. It was submitted that the OP is bound to adhere to the contract. As per the said letter, the payment was made in eight installments.

ACCORDING to the complainant, who is Civil Engineer in CPWD, Bombay, got sanctioned loan from his Department to the maximum extent of Rs.88,000/-, as house building advance. The said loan was to be paid through installments. It is averred that the last installment coincided with the last installment payable to OP1 on 29.06.1992. The Office Order reveals that if the flat is mortgaged in the name of the President of India, within three months '' from the date of disbursement of full amount of advance, a rebate in interest to the extent of 2.5% p.a. would be allowed. A Tripartite agreement was executed between the Government of India, CPWD and the OP, on 13.04.1992. It is averred that the construction was delayed by the OP and house was allotted only in February, 1993. Consequently, the complainant could not mortgage the flat in the name of the President of India, within a period of three months from the payment of the last installment, which fell due in June, 1992. He also lost concession of 2.5% in interest payable by him to his employer on the amount of housing loan. The loss caused to the complainant comes to Rs.11,550/- and therefore, the complainant is entitled to get the same from the OP.

ON 29.08.1991, the OP informed the complainant about the location of his tenement. According to the agreement, clauses 5 and 6 show that OP was bound to allot the specific dwelling unit, i.e. location, building No., Flat No., Floor No., etc., before June, 1992 and to handover possession by the end of June, 1992, since the final installment amount was released by the Government of India, CPWD and paid to the OP on 29.06.1992. As per press advertisement, dated 30.01.1993, the complainant was given tenement as Vashi, Sector-26, D138, FF, Tenement No.3. The said tenement was not in accordance with his entitlement. The complainant protested vide his letters dated 11.02.1993 and 25.02.1993 and requested OP to allot his flat correctly. His Department, CPWD also lodged a protest vide its letter dated 17.02.1993. It transpired that the area of said tenement was 38.840 sq.mts., the lower category, instead of 40.00 sq.mts. It was meant for monthly income group whose pay scale was Rs.1,501/- to Rs.2,500/-. There was one living room, plus one small bed room, one kitchen, W.C. and bath only, whereas he was to be allotted with one living room, plus one small bed room, kitchen, W.C. and bath, plus balcony (emphasis supplied). The price of the said flat was Rs.1,96,686/- wherein he was required to pay Rs.1,56,780/-. The complainant was also informed that if he did not take the tenement within 8 days '', he would have to pay ''Watch and Ward '' charges @ Rs.360/- per calendar month. The allottees were also informed to pay the escalated amount, failing which, interest @ 15% was to be paid. Secondly, charges for electricity and water were also levied. Escalation amount has been challenged. It is averred that the withdrawal from the Scheme at this late juncture would have only worsened the problems of the complainant. Consequently, he made full payment of the amount under protest. It was prayed that OP should be directed to give possession of the correct type with balcony and built-up area. The OP be directed to accept the contract rates and it should not have levied any escalation charges along with interest @ 18% p.a. The OP be also directed to pay interest @ 18% p.a. for the delayed period. The complainant filed a complaint with the District Forum which vide its order dated 29.01.200, accepted the complaint and passed the following orders: "(1) The OP � CIDCO shall, in exchange of the apartment No.D.138/1:3 Type D.138 in Sector 26 Vashi given in possession of the complainant vide Ex.27 and the Agreement of Sale dated 21.07.1993 vide Ex. 26, in as is what is condition, provide another 40 sq.mtrs Flat with Balcony at Vashi, Nerul or Belapur, within a period of 3 months from the date of receipt of this order OR in the alternative, (2) The OP�CIDCO shall pay damages of Rs.73,405/- and costs of Rs.2,000/- within a period of 3 months from the date of receipt of this order ".

AGGRIEVED by that order, an appeal was filed before the State Commission. The State Commission accepted the appeal and dismissed the complaint.

AGGRIEVED by that order, the present revision petition has been filed, with delay of four days, for which an application for condonation of delay has also been filed by the petitioner. For the reasons mentioned in the application, the said delay is condoned. We have heard the counsel for the petitioner. His principal argument is that he was not allotted the correct flat. He prayed that under the circumstances, the order passed by the State Commission should be set aside and order passed by the District Forum be restored.

We find no merit in these arguments. On 29.10.1991, the CIDCO have informed the complainant where he was going to be allotted the tenement as per computer draw held on 27.08.1991. The petitioner was informed that he could withdraw from the Scheme if the location was not approved by the complainant, by refund of amount paid, with interest @ 7% p.a.

THE complainant had opted for a tenement of 40 sq.mts., with a balcony. The complainant has suppressed the further conditions regarding the allotment. The CIDCO had conducted the draw of lot for the allotment by computer. The complainant was not among the successful candidates. Consequently, CIDCO drew another lot from the left-out tenements and in that, the respondent has got the present tenement. In its letter dated 29.08.1991, the OP informed the complainant about the location where he was allotted the tenement as per the computer draw, held on 27.08.1999, which was at Vashi. The complainant should have withdrawn from the Scheme at that time. He could have got the refund of the amount along with interest @7% p.a. The complainant is estopped from taking opposite plea, at this stage. Once he has accepted the flat, he is debarred from raising any fresh plea. The Learned State Commission has quoted the order of this Commission as follows:- "In a class application No. 273/1993, the "Demand Registration Survey 1987 ", applicant ''s association has challenged the allotment made by the appellant in the National Consumer Disputes Redressal Commission and the Ld. National Consumer Disputes Redressal Commission vide its order dated 11.01.1995 has observed that "we have carefully gone through the counter of the opposite party and find that there has not been any undue delay in the steps taken by CIDCO in finding out the ways and means to provide so many tenements." Further National Commission has observed that "in the present case CIDCO cannot be held guilty of delay in the construction of the tenements and the delay such as has occurred was caused due to the circumstances beyond its control and not due to its negligence. The applicant had the option either to join the scheme if found eligible or to withdraw from it ". With these observations, Ld. National Consumer Disputes Redressal Commission has dismissed the class petition. Order of the National Commission was challenged before the Apex Court by Civil Appeal No. 5754 of 1995 and the appeal was dismissed by order dated 25.03.1996 of the Apex Court ".

THE above quoted order was passed by this Commission in same case (OP No. 273 of 1993, decided on 11.01.1995) filed by other allottees. The orders of Fora below clearly depict that the petitioner did not pick up a conflict with escalation aspect. No argument was advanced before us. His only plea is to change his flat which, under the circumstances, is not possible. No deficiency on the part of the respondent, CIDCO, can be attributed. All the doubts have been proved to be puerile and baseless. The revision petition is, therefore, dismissed.