SARTHAK BEHURIA vs ORISSA STATE HOUSING BOARD

THESE are two cross appeals arising out of the order of the State Commission, Orissa at Cuttack passed in Case C.D. No. 4 of 1990.

A complaint was filed by the Appellants in the above appeal No. 19 of 1991 against the Respondent in that appeal i.e., the Orissa State Housing Board (for short the Board) and Shri M.C. Dash, Executive Engineer of the Board. In Appeal No. 24, the parties have changed their. The case of the Complainants is that the Board had floated a Scheme construction of residential house under H.I.G. (Self-finance) Housing Scheme at Baramunda, Bhubaneswar. The houses were to be constructed on a plot measuring 3,000 sft. Each of the Complainants made an application for allotment of a Duplex ''A, category of house. According to the brochure, the period of construction was tentatively fixed as two years commencing from 1st September, 1985. The entire cost of the house was to be paid during the period of construction in the manner laid down in the brochure. Each house at Duplex A, category was estimated at Rs. 2.20 lakhs approximately. The total co T of The house included cosT of land, developmenT of infrasTrucTure like road, sewerage and waTer supply, civil consTrucTion, inTernal wiring, saniTary, fiTTings eTc. IT was also sTaTed in The brochure ThaT all The houses would be provided wiTh full mosaic flooring. House No. A/1 was alloTTed To Shri SarThak Behuria, complainanT while House No. A/17 was alloTTed To Shri Sanjay Behuria-ComplainanT. As per schedule, insTalmenTs were paid by The end of June, 1987 in respecT of House Nos. A/1 and by 1sT SepTember, 1987 in respecT of House No. A/17. However, The consTrucTion of The houses was noT compleTed wiThin The original esTimaTed Time. On 12Th AugusT, 1988 each complainanT was called upon To pay an addiTional sum of Rs.18,111/- which was deposiTed in SepTember, 1988 wiThin The sTipulaTed period. Possession of The houses was delivered on 4Th January, 1989 To The complainanTs Through Their faTher and power of aTTorney Shri N.C. Behuria, I.A.S. (ReTd.).

DURING construction of the houses, the father of the Complainants, Shri N.C. Behuria, visited the same and found defects in the construction and pointed out same at the spot as well as in the office of the Board which were coldly received by the Board and its officers. Complainants had several correspondences with the Board and its officers. Lastly, in December, 1989, they got the houses examined by Shri B.N. Sahu, retired Chief Engineer and registered valuer who assessed the defects to be rectified at Rs. 60,000/-. When the defects were not rectified, the Complainants filed the complaint claiming the following compensation: House No.A-17 1. Cost of rectification of major defects as per certificate dated 28.12.1989 of Shri B.N. Sahu, retired Chief Engineer and Registered valuer No. Category 1/647 of 1973-------------60,000.00 2. Interest on capital of Rs.2,20,000/- payable from 1.9.87 to 31.12.89 @ 12.50% for 1 year 4 months --------36,666.00 3. Cost of rectification of minor defects and replacement of defective parts (approximately) --------5,000.00 4. Cost of provision of infrastructure which has not been done, such as drainage, approach culvert road black topping (actual cost charged to allottee) -------15,916.00 5. Lost of rental income due to defective nature of work from 1.2.1989 to 31.12.1989 @ Rs.1,000 p.m. for 11 months ----------11,000.00 6. Cost of frequent travel to the Housing Board Office and to the spot for approaching the Housing Board office for rectification of defects as explained in the petition -------500.00 7. Damages for loss of presitge, psychological trauma and stress ----------40,000.00 Total ---------------1,69,082.00 House No. A.I 1. Cost of rectification of major defects as per certificate dated 28.12.1989 of Shri B.N. Sahu, retired Chief Engineer and Registered valuer No. Category 1/647 of 1973-------------60,000.00 2. Interest on capital of Rs.2,20,000 payable from 1.9.87 to 31.12.89 @ 12.50% for 1 year, 4 months ---------36,666.00 3. Cost of rectification of minor defects and replacement of defective parts (approximately) -----------5,000.00 4. Cost of provision of infrastructure which has not been done, such as drainage, approach culvert road, black topping (actual cost charged to allottee) -------15,916.00 5. Lost of rental income due to defective nature of work from 1.2.1989 to 30.6.1989 @ Rs.2,500 p.m. for 5 months --------------12,500.00 6. Cost of frequent travel to the Housing Board Office and to the spot for approaching the Housing Board office for rectification of defects as explained in the petition ---------------500.00 7. Damages for Joss of prestige, psychological trauma and stress --------------40,000.00 Total ----------------1,76,982.00

THE Opposite Parties (in the complaint) in their counter affidavit, stated that the houses were constructed as per the specification and estimate made. Power of Attorney of the complainants had frequently visited the houses sites during construction and at no point of time during such period of construction, he raised any objection regarding construction or use of sub-standard materials. The allottees of H.I.G. duplex houses Baramunda have formed an association and used to have discussions with executive bodies in regard to construction matters and other provisions etc. and none of the allottees raised any complaint of any nature regarding construction or specification etc. The power of attorney holder of the Complainants wanted to get some undue advantage and extra work beyond the provisions of the scheme and claimed that it should be made available to those two buildings. As he was refused the same, the Complainants filed a complaint making false and fabricated allegations. Complainants have let out their houses to different persons after taking possession and are enjoying the benefits thereunder. Power of attorney holder came up with a request after completion of the work to do some extra work but for some reasons, it could not be entertained by the opposite party as it was beond the purview of the scheme and the Board also never intended to involve the subordinate officers in personal and private works as desired. The power of attorney holder thereafter came up with a petition indicating some defects in the allotted buildings. After receipt of the same, immediately the concerned Assistant Engineer was directed to verify and report regarding the defects mentioned in the petition and after verification, it was found that the allegations are totally false and it was also explained to the power of attorney holder and he was convinced and took possession of the houses. As regards infrastructure, it was stated that they have been done properly. So far as report of Shri B.N. Sahu, retired Chief Engineer was concerned, it was stated that he is not in any way connected with the affairs of the Board. The execution aspect of the work of the Board was headed by a senior officer of the State Government in the rank of Chief Engineer as well as other senior Engineering Personnel who are brought on deputation from the State P.W.D. who have a brilliant record of execution and the report filed by the Complainants might have been prepared by the retired Chief Engineer at their request and that of their father. A prelimianry objection has also been taken to the effect that the complaint was not maintainable since it relates to sale of a house which is immovable property and there is no question of any service to be rendered by the Opposite Parties. That objection was overruled by the State Commission. That objection was not raised before us on behalf of the Board perhaps in view of the fact that the "Housing construction" has been included in the definition of "service,, as given in Clause (o) of Sub-Section 1 of Section 2 of the Consumer Protection Act by the Consumer Protection (Amendment) Ordinance, 1993.

THE State Commission, relying upon the report of Shri Sahu held that each of the complainants was entitled to realise Rs. 60,000/- as cost of rectification of major defects. The complainants were also allowed interest @ 7.5% for one year, L.e. the entire year of 1988 for the delay in the delivery of the possession on the amount of Rs. 2,20,000. Each of the complainant was also allowed Rs. 500/- as costs of frequent travel of the power of attorney holder. Regarding the infrastructure, the opposite party was directed to provide the same within six months from the date of the receipt of the order and incase the same was not provided the complainants were given liberty to approach the proper redressal agency under the Act for filing a complaint for compelling the opposite parties to rectify the deficient service. The other claims made by the complainants were disallowed.

FEELING aggrieved by the above order, the Board has filed the above appeal No. 24 of 1991 while the Complainants have filed Appeal No. 19 of 1991. In their appeal, the complainants have reiterated their claims in the respect of the items disallowed by the State Commission. It was further pleaded that they had claimed interest at the rate of 12.5% for one year and the State Commission has partly allowed the claim of interest for one year at the rate of 7.5% per annum as payable by another similar agency, namely, the Bhubaneswar Development Authority. Before we proceed further we may mention here that the complaint was bad for mis-joinder of parties. The two complainants were allotted separate houses. Though some of the defects mentioned in the houses were common but some were different. The Complainants ought to have filed separate complaints in respect of their respective houses. We are mentioning this fact as we want to discourage such sort of practice on the part of the Complainants.

FIRST we take the appeal filed by the Orissa State Housing Board. It was argued on behalf of the Appellant that the State Commission has allowed Rs. 60,000/- as cost of rectification of major defects in the houses. This amount was assessed by Shri B.N. Sahu retired Chief Engineer and a registered valuer. It was pointed out that in para 11 the State Commission itself has remarked that as regards valuation of the defects we have no material to state that Shri Sahu is correct. It was urged that even after making that remark the State Commission allowed Rs. 60,000/-each of the Complainants as cost of rectification of major defects. We are of the opinion that the Appellant Board stands on sound footing in urging that the Complainants have not been able to prove that there are any major defects in the house which required rectification or the cost of rectification will come to Rs. 60,000/-. Shri Sahu was not examined, nor was he produced by the Complainants for cross-examination by the Opposite Party before the State Commission. There is no material on the record to support the item of Rs. 60,000/-, therefore we have no option but to disallow that item of Rs. 60,000/- to each of the complainant.

IT was further argued on behalf of the Appellant Board that the Complainants were not entitled to any interest as there has been no unreasonable delay in the construction of the house. According to the brochure the tentative period of construction was two years commencing from 1.9.1985. Thus the tentative period of completion would come to 1.9.87. The scheme was Self Financing Housing Scheme. On 12.8.1988 each of the Complainants was asked to deposit an additional sum of Rs.18,111/- which were deposited by each of them in September, 1988. The possession was delivered to the Complainants on 4th January, 1989. According the brochure which has been appended in Appeal No. 19 of 1991 170 residential houses were to be constructed under that scheme. When such a large project is taken in hand there is bound to be some delay on account of many factors which might not be within the control of the Housing Board or the Contractor employed by it. The State Commission has relied upon the following term container in the brochure of Bhubaneswar Development Authority for allowing interest on deposits: "In case the house cannot be made ready for handing over to the applicant within two years of the provisional allotment being made, the B.D.A. will pay interest @ 7.5% per annum on the total amount of instalments deposited with them (for calculation of interest the period beyond two years upto the date of intimation from the BD A that the house is ready, will be taken into account." According to the brochure the period of two years has been taken from the date of provisional allotment and not from the date of completion of the houses. The State Commission does not appear to be correct in remarking that there can be normal fluctuations of three months in the tentatively stipulated period in the completion of the houses but it cannot be a duration of one year and three months. This delay of one year and three months cannot be said to be unreasonable delay in the completion of such a big project.

MOREOVER after taking possession of the houses the Complainants cannot be heard to say that there has been unreasonable delay in the construction of houses. In this context, reference to Premji Bhai Parmar and Others Delhi Development Authority and Others, 1980 S.C. 738 will be useful. The Court remarked: "They were advised by the brochures to look at the flats before going in for the same. They were lucky enough to get allotment when the lots were drawn. Each one of them was allotted a flat and he paid the price voluntarily. They are now trying to wriggle out by an invidious method so as to get back a part of the purchase price not offering to return the benefit under the contract, namely, surrender of flat. The Authority in its affidavit in reply in terms stated that it is willing to take back the flats and to repay them the full price. The transaction is complete, viz., possession of the flat is taken and price is paid. At a later stage when they are secure in possession with title, petitioners are trying to get back a part of the purchase price and thus trying to re-open and wriggle out of a concluded contract only partially.,. Therefore, either of the Complainants was not entitled to any interest for the year 1988.

EACH of the Complainants was also awarded Rs. 500/- as costs of travel as their attorney had to travel frequently to the Housing Board office and to the site for rectification of the alleged defects. The Appellant has pointed out in the memorandum of appeal that allottees of HIG duplex houses of Baramunda have formed an association having their office bearer who had discussions with the executive body in regard to construction matters and none of the allottees have raised nay complaint of any nature with regard to the quality of construction. Shri Behuria has filed a letter of the Secretary of that Association but it is dated 15.6.1986 i.e. long before the houses were completed. No complaint by any of the allottees except the complainants appears to be made in respect of construction or defects in the houses. Of course the Complainants are not debarred from making complaint merely because others have not made the complaints about defects or deficiency but there must be positive proof about the existence of defects and deficiencies. After taking possession of the houses even the Complainants have got the sale deeds registered in their favour. If there were any defects in the construction they ''would not have done so. It is the Appellant Boards case that the attorney of the complainant wanted to have done extra works done in the houses allotted to his sons and the Board refused to oblige him. Therefore, we are of the opinion that either of the Complainants was not entitled to the cost of the travel of his attorney. Hence the appeal filed by the Board is liable to be accepted and the complaint of the Complainants is liable to be dismissed. The appeal filed by them is devoid of any force and the same is also liable to be dismissed. As a result we dismiss appeal No. 19 of 991 filed by the Complainants and accept appeal No.24 of 1991 filed by the Housing Board and set aside the impugned order of the State Commission and dismiss the complaint. In the facts and circumstances of the case we make no order as to costs.