SHARADCHANDRA RAOREKAR vs BHOPAL DEVELOPMENT AUTHORITY

THESE 10 Appeal Nos. 368, 369, 370, 371, 372, 374, 375, 377, 378 and 379 of 1997 have been filed against orders dated 30.5.1997 passed by the District Consumer Disputes Redressal Forum, Bhopal in their Case Nos. 37, 38, 33, 28, 34, 40, 32, 36, 39 and 29 respectively of 1994. All these 10 appeals are being disposed of by one composite order because the District Forum has passed exactly similar orders in all these cases. The facts and circumstances, law points and various other issues involved are also exactly identical and the District Forum has dismissed the complaints stating that the complainants are not entitled to any of the reliefs prayed for or any other relief. The grounds of appeal are as under : (i) That the District Forum has erred in not formulating issues for determination. (ii) That the District Forum has erred in holding that first and second reliefs prayed for are a matter of pricing policy not triable by Consumer Disputes Redressal Agency. (iii) That the District Forum has erred in not holding that the increase in price was on account of the delay of 15 months and therefore, the dispute was in respect of escalation of cost. (iv) That District Forum has failed to consider that as per orders of Government of Madhya Pradesh as contained in Housing and Environment Department''s Letter No. F 3-39/32-1/85 dated 6.12.1985 the Agencies like Special Area Development Authority, Housing Board, etc. have been directed to ensure that the estimate of the cost should be calculated in such a way that at the time of final fixation of price, it should not exceed 10% of the estimated cost. (v) That the District Forum has further failed to see that the Government in the same letter has further directed in para 3-A that unless the title and possession both of the land are obtained, registration should not be commenced. (vi) That the District Forum committed a mistake in holding that the cause of action arose on 1.1.1991, it was in fact continued cause of action and cause of action should have been counted from 7.3.1992 which was the date of delivery of the possession of the flat. (vii) That the opposite party did not raise the question of limitation before the District Forum, yet, the District Forum dismissed the complaints on the ground of limitation without giving an opportunity to the complainants of being heard on this point. The complainants were deprived of their right to apply for condonation of delay under Sub- section (2) of Section 24-A. Passing an order on an issue not raised by opposite party and that too without giving an opportunity to the complainants of being heard,. amounts to denial of justice. In Appeal No. 375/97 it has been further argued that in I (1991) CPJ 56 NC, 1991 CPR 220 NC, the Hon''ble National Commission has held that complaint regarding alleged deficiency in service rendered by the opposite party should be brought within three years from the date of taking over possession of the flats. (viii) That the District Forum has failed to see that alleged increase in area of the flats was not clearly described by the opposite party. It was not established that the area of the flats had increased than what was indicated at the time of advertisement inviting applications for registration of the flats.

HEARD the arguments of both the parties and perused the record of the case. Undisputed facts of the cases are as under : (i) That the respondent-BDA published an advertisement in newspapers inviting applications for registration of HIG and MIG flats under Self Financing Scheme at Ankur Complex, Phase IV, Shivaji Nagar, Bhopal. The advertisement was published in the month of September, 1988 and the applications were to be received between 28.10.1988 to l4.11.1988.The heading in the advertisement was "New Housing Policy 1988" - flats available "xxxxx". In the advertisement, the area of HIG flat was shown as 101.5 sq. metre and that of MIG flat 74.23 sq. metre. The estimated value of HIG flats was Rs. 2,65,100/- and that of HIG flat Rs. 1,92,500/- and the registration amounts to be deposited with the BDA were Rs. 30,000/- for HIG and Rs. 25,000/- for MIG. (ii) That in the allotment orders issued in January-February, 1989 to the complainants after depositing the registration amount it was stated that the balance amount i.e. (estimated cost minus registration amount already deposited) was to be paid in four instalments of the amounts indicated therein, by 15.3.1989, 15.5.1989, 15.8.1989 and 15.10.1989. It was further stated that the lease rent, service charges and balance of the principal amount, if any, was to be paid before taking possession of the flat or by 31.12.1990 as 5th and last instalment. Thus, the four instalment periods for payment of principal amount i.e. the estimated full cost were two to three months whereas 5th instalment was to be paid after 14 months of payment of last "4th instalment of the estimated cost". This period of 14 months was given for completion of the construction of flats. (iii) That the respondent-BDA issued letters to the complainants that they have to deposit Rs. 70,000/- as escalated cost of the flats by 1.1.1992 failing which they will not be allowed to participate in draw of lots for allotment of flat to be held on 7.1.1992. (iv) That on objection raised by the complainants, the respondent-BDA directed the complainants to deposit Rs. 53,020/- in case of HIC flats and Rs. 38,500/- in case of MIG flats and on depositing this amount, the allottees were placed in possession of flats in March, 1992 in pursuance of the allotment orders issued in March, 1992. (v) The respondent-BDA however, before delivering possession of flats obtained from the complainants consent letters that they would abide by the decision of the Inquiry Committee constituted by the BDA to enquire into the justification of the escalation cost of the flats and in case the Committee comes to the conclusion that escalation cost has to be paid, the complainants will deposit that amount with the BDA and then only lease deed will be executed.

The complainants in their complaint requested for, reliefs as under, from the District Forum: (I) Refund of the amounts deposited by the complainants with the opposite party as escalated cost before taking delivery of possession of the flats. (II) Interest on the above amounts at the rate of 18% per annum. (III) Interest at the rate of 18% by way of damages on the amount of estimated costs Rs. 2,65,100/- in case of HIG and Rs. 1,92,500/- in case of MIG flats for the period of delay in delivery of possession. (IV) Rent at the rate of Rs. 1,800/- per month for the delay in delivery of possession. (V) Refund of 20%'' on account of substandard quality of construction. (VI) 18% interest on the excess amount deposited for registration of the accommodation.

The District Forum in their order in para 8 has accepted this contention "that the opposite party was not keen rather indifferent in matter of delivery of possession to the complainant as per agreement and thus amounts to deficiency in service and the complainant''s claims for interest on the amount deposited for the period of delay is justified and well founded". But the District Forum refused to grant any relief for this deficiency stating that the complaints were barred by limitation. The District Forum held that the cause of action accrued on 1.1.1991 as the delivery of possession of the flats was to be done by 31.12.1990.Taking 1.1.1991 as the date of cause of action, the District Forum held that the complaints were barred by limitation because the complaints were filed in their Case Nos. 28 and 29 on 27.12.1993, in Case No. 33 on 6.1.1994 and in the rest of the cases on 8.1.1994 i.e. more than 2 years from the date of cause of action whereas the provisions of Section 24-A of the Consumer Protection Act, 1986 provide a period of 2 years for filing a complaint.

WHAT we have to see now at first is, whether the complaints are time-barred, or not. Section 24-A of the Consumer Protection Act has come into force with effect from 18.6.1993 having been inserted by Amendment Act 50 of 1993. Prior to 18.6.1993, for purposes of limitation, general law of Limitation Act, 1963 was applicable "I (1994) CPJ 103, NCDRC" and this Act provides for three years period. Therefore, we have to see whether in the instant cases when the cause of action arose before coming into force of Section 24-A whether the period of three years will be applicable or the period of two years. Period of limitation of two years cannot be applied retrospectively to cases where cause of action arose prior to 18.6.1993. In this connection, we entirely agree with Delhi State Commission''s view held in I (1997) CPJ 580 wherein the Commission has held that as per decision of the Hon''ble Supreme Court as cited therein where the General Law of Limitation provides a longer period, subsequent legislation providing for a shorter period of limitation cannot suddenly extinguish vested rights of action. Therefore, in the instant cases also the period of limitation applicable will be three years as cause of action arose on 1.1.1991 long before coming into force of Section 24-A of the Consumer Protection Act. As has been stated by the District Forum in their orders in their Case Nos. 28 and 29, the complaints in those cases were filed on 27.12.1993 i.e. within less than three years period and therefore, in those cases the complaints cannot be treated as time barred. Now coming to the rest of the 8 cases, we find that the District Forum has stated that in CaseNo.33/94 the complaint was filed on 6.1.1994 and in the rest of the seven cases the complaints were filed on 8.1.1994. That means, in these cases according to the District Forum delay has been of 6 to 8 days only. On a perusal of the note sheets dated 27.12.1993 in their Case Nos. 28 and 29 we find that the note sheets recorded are "complaint presented by Mr. Sushil Dubey, Advocate. Sitting of the Forum is fixed for 8.1.1994, the case be put up on 8.1.1994". The case numbers of the complaints against which these appeals have been filed are 28, 29, 32, 33, 34, 36, 37, 38, 39 and 40. All these complaints are drafted and signed by the same Advocate and are exactly verbatim except for the figures. The sequence numbers of the cases commencing from 28 to 40 creates an impression in our mind that all these complaints being exactly verbatim must have been presented before the District Forum in one lot whereas only in first two complaints i.e. Nos. 28 and 29 note sheets were recorded on 27.12.1993 and in the rest of the cases note sheets were recorded for the first time on 8.1.1994 alongwith note sheets recorded again in Case Nos. 28 and 29. Two complaints registered as Case Nos. 28 and 29 of 1994 were received by the District Forum on 27.12.1993 and when they were received on 27.12.1993 as is stated by the District Forum in their order why were not these two cases given serial numbers of the year 1993 and why were these complaints not recorded as cases of the year 1993 and were registered with other eight cases of the year 1984 on 8.1.1994. This further gives us an impression that all these eight cases said to have been filed on 6.1.1994/8.1.1994 must also have been presented before the District Forum on 27.12.1993 simultaneously alongwith Case Nos. 28 and 29. The normal procedure for receiving complaint is that every complaint should be received and entered in case register, the same day on which it is received and acknowledgment be rendered to the person presenting the complaint. Had the acknowledgment been given on 27.12.1993 to the person presenting two complaints, the complaints would have been registered as case number of the year 1993. There is nothing on record to show as to on which date the complaints were presented before the District Forum. There is no endorsement on the complaints which should normally have been there to the effect "presented by so and so and on such date". But there is no such endorsement. Date of presentation of complaints and date of registration may be different. Date of registration or date on which first note sheet is recorded does not mean date of presentation. Whereas for the purposes of counting limitation, date of presentation has to be seen not the date of writing note sheets. In view of the above circumstances, we have every reason to believe that all these 10 complaints must have been presented before the District Forum, in one lot on 27.12.1993 but after recording note sheet in only two cases, in view of the fact that next sitting of the Forum was to be held on 8.1.1994 the dealing assistant must have kept other complaints for writing note sheet only on 8.1.1994 alongwith Case Nos. 28 and 29 which also have been registered on 8.1.1994 as Case Nos. 28 and 29. Therefore, these 8 complaints shall also have to be treated as within time having been filed within three years from the date of accrual of cause of action, if it is to be treated as 1.1.1991.

EVEN if, we presume that our presumption of these complaints having been filed on 27.12.1993 may not be correct a delay of 6 to 8 days deserves to be condoned and had the complainants been given an opportunity to explain delay, they may have furnished applications for condonation of delay and 6 to 8 days was not such a long delay as did not deserve condonation. Hon''ble Supreme Court has defined the scope and objectives of the Consumer Protection Act, 1986 in Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787. The Hon''ble Apex Court has held that importance of the Act lies in promoting welfare of the Society and attempts to remove the helplessness of a consumer against the might of public bodies should be made and this being a social benefit oriented legislation its provisions should therefore, be construed in favour of the consumer. Otherwise also, if we count the period of limitation from the date of taking possession i.e. 9.3.1992 then also the complaints were filed within the period prescribed. Therefore, we do not agree with this finding of the District Forum that the complaints were time barred. The District Forum has already held that complainant''s claim for interest on the amount deposited for the period of delay in delivery of the possession of the flat is justified and well-founded. We agree with this finding of the Forum that there has been a delay in delivery of possession and the BDA could not show sufficient reason for delay in construction. This ground of the respondent-BDA that the construction was delayed as they could not get possession of land from Forest Department further enhances the quantum of deficiency on their part. As has been clearly directed by the Housing and Environment Department unless the "title coupled with possession" was not obtained by the BDA, the scheme should not have been floated and applications for registration should not have been invited. The advertisement as quoted above, nowhere mentioned that BDA was yet to take possession of land. On the other hand the advertisement stated that flats were available, "xxxxx". Hence a common man will have a presumption that the flats would be available within specified period or the date given for delivery of possession. We, therefore, agree that all these complainants are entitled to get interest for delay in delivery of possession. Since the BDA charges 16.5% interest in case of delayed payment of instalments or any other dues, we feel that there is sufficient justification for allowing 16.5% interest to the complainants on the amounts deposited by them from the date of payment of last instalment of the principal amount i.e. estimated cost of the flat till the date of delivery of possession. Delay in delivery of possession is deficiency [I (1991) CPJ 37 (NC), II (1991) CPJ 66 (NC)]. So far as the reliefs for refund of the amounts deposited by the complainants immediately before taking delivery of possession as the escalation cost is concerned we find that the Housing and Environment Department had vide their order F-3-39/31-1/85 dated 6.12.1985 had in para 7/3 given clear directions that the escalation should not normally exceed 10% of estimated cost. In the instant cases, demand for Rs. 70,000/- was more than 35% of the estimated cost. The BDA has failed to explain the cause for escalation and has given different reasons in the different letters and memos. In some, reason has been given as rise in prices and in Letter No. 39654 dated 8.9.1993 sent to the Advocate of complainant, Mr. R.C. Agrawal, the BDA stated that this escalation was not on account of rise in prices but on account of increase in area of the flats. The BDA has not furnished any documents or any evidence to show that the area increased from what it was shown in the advertisement. It has also not been stated as to how the plan of construction was changed or amended. Parking space was shown in the advertisement also. Therefore, area of parking space cannot be added now to the flats. The estimate must have been prepared taking into consideration the parking space which is on the ground floor. Without having vacant ground floor for parking of the vehicles building could not have been constructed. As such, we do not agree with this contention of the BDA that the escalation was on account of increase in area of the flats. Before they obtained consent letter from the complainants as alleged, the BDA did not specify terms of references for the Investigating Committee for investigating the justification for increase in cost. The BDA has not furnished the report of the Investigating Committee. Resolution No. 61 dated 29.5.1993 of the BDA also does not mention as to how and why the cost increased. In this resolution also it is nowhere stated that the cost has increased because of increase in the area or flats. Thus, there being no sufficient justification for escalation, charging escalation cost was unjustified. Truly speaking no escalation cost would have been justified as the BDA itself is responsible for delay in construction as the BDA had not obtained possession of land for several months after registration of flats. Anyway, since BDA earlier charged 20% of estimated cost as the escalation cost and the complainants agreed to pay the said amount we feel a direction for refund of this amount is not called for. But over and above this 20% amount, the additional amount of Rs. 34,000/- which has been demanded vide letter dated 22.7.1993 deserves to be set aside and we accordingly direct that BDA shall not charge any escalation cost over and above what has already been paid by the complainants. Besides this, the BDA shall refund that amount to the complainants which some of the complainants had paid over and above 20% of estimated cost. The appellants have not pressed for other reliefs demanded originally in the complaint before the District Forum. As such the appeals are allowed. District Forum''s orders are set aside and in short the following reliefs are hereby ordered. (i) That the respondent-BDA shall pay to the complainants/appellants interest at the rate of l6.5% per annum on the principal amounts deposited by the complainants w.e.f. 1.1.1991 till date of delivery of possession of the flats to them. (ii) The BDA shall refund to those complainants who on demand of Rs. 70,000/- paid more than 20% of the estimated cost, the amount paid by them over and above 20%, alongwith interest at the rate of 12% from the date of payment till the date of refund. (iii) The BDA shall not charge any escalation cost over and above already paid by the complainants as 20% of estimated cost. (iv) The BDA shall pay to each of the complainants Rs 500/- as proceedings expenses. Appeals allowed.

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