SHYAM SUNDER PATHAK vs Bihar State Housing Board

THE instant complaint has been filed by Sri Shyam Sundar Pathak against Bihar State Housing Board (hereafter Board) and others for not giving physical possession of plot No. B/187 inspite of allotment of the aforesaid plot in his name by the Board with a prayer to direct the Board to hand over constructive and physical possession over the said plot and compensate the loss amounting to Rs. 5,91,658.70 and also further loss due to price rise of various construction materials on account of deficiency in service of the Board.

THE complaint in brief is that Sri Pathak got himself registered in the Board, Patna by depositing Rs.50/- on 8.8.1979 and earnest money of Rs. 5,000/- on 1.12.1981 for allotment of a high income group plot at Patna. After investigation and being satisfied, the opposite party No. (iii) issued allotment letter No. 2041/AA dated 21st August, 1991 allotting plot No. B-187 situated at Lohianagar, Patna to the complainant with a direction to him to deposit a sum of Rs. 31,160/-. THE complainant accordingly deposited the above amount on 22.8.1991. A hire purchase agreement thereafter was executed on 27.8.1991 between the authorised representative of the Board and the complainant pertaining to the said plot. THE opposite party No. (vi), in pursuance of the direction of opposite party No. (iii) vide his letter No. 2175/AA dated 29.8.1991, issued possession letter dated 10.9.1991 in favour of the complainant. As per terms of hire purchase agreement he continued regularly depositing monthly instalments with effect from September, 1991 and thus deposited a sum of Rs. 19,993.20 till November, 1993. In the meantime, he had been to the site with men and material on 14.9.1991 for starting construction of boundary wall around the allotted plot. But opposite party No. (vii) thereupon appeared on the scene claiming to be the settlee of the aforesaid plot and forcibly stopped him from doing any construction work. On being obstructed to start construction work he personally approached the opposite parties (iii), (iv) and (v) and also kept on pursuing the matter through his letters dated 16.9.1991, 4.10.1991, 4.11.1991, 9.3.1992, 10.3.1992, 1.4.1993, 7.7.1993 and 30.7.1993 with no avail. He urged upon the opposite parties to allot alternative plot of the same size near about in Lohianagar otherwise he would be subjected to financial hardship due to escalating price of construction materials. He was constantly being given false hope by them that the vacant plot No. B-187 will be made available to him and he should continue depositing the monthly instalments as per terms of agreement which he accordingly did till November, 1993. In the meantime the opposite party No. (vii) illegally constructed boundary wall and brick house in the plot in question on 10.3.1992. THE complainant claims that he had appointed M/s. Sharnam Engicons (P) Ltd., on assurances of opposite parties (i) to (vi), for carrying on construction in the aforesaid plot. THE above builder went to the site on 10.11.1993 with construction materials worth Rs. 75,668.00. THE opposite party No. (vii) once again obstructed the builder and did not allow him to do any construction as a result of which the entire materials were lost. In fact according to the complainant, the entire materials were consumed by the opposite party (vii) in construction of multi-storeyed building in the adjacent plot. THE opposite party No. (vii), on complaint from nearby residents, was restrained by the S.D.M., Patna under Section 144, Criminal Procedure Code on 17.11.1993. THE complainant claims that his construction materials were usurped by the opposite party No. (vii) for which he may be compensated. Getting no positive response from the opposite party Nos. (i) to (vi) inspite of his tireless efforts the complainant ultimately filed the present complaint claiming Rs. 5,91,658.70 alongwith compensation for loss due to price- rise of construction materials. The Board representing opposite parties (i) to (vi) in its written statement admits that the complainant had deposited earnest money of Rs. 5,000/- on 1.12.1981 for allotment of Higher Income Group plot at Patna after registration. The complainant was not eligible at that time for allotment of plot under HIG scheme. But the then Chairman of the Board under special circumstances approved the proposal of allotment of plot in Bahadurpur or Lohianagar at Patna on 14.1.1982. The Chairman later on approved allotment of plot No. B-726 at Lohianagar to the complainant. But the allotment letter had not been issued by the Housing Board as because the Government set aside allotment made after 23.10.1981 vide its notification dated 12.11.1982. The complainant had requested the Housing Board to allot plot No. B-726 to him vide his letter dated 3.1.1990. Since plot No. B-726 was, on investigation, found to be non-existing, plot No. B-187 was allotted to him vide Board allotment order No. 2041/AA dated 21.8.1991. It has been stated that because the above allotment of plot was neither made by lottery nor by the decision of the Board nor by the order of Government was illegal and irregular. It has further been stated that the allotment order was against the decision of the Board''s 135th meeting dated 15.9.1990. The C.M.D. of the Board had also not obtained permission of Hon''ble High Court before making allotment to the complainant when the list of pending applicants had already been submitted to the Hon''ble High Court. The department also directed the Board to cancel this allotment after issuing necessary show cause vide its letter No. 1489 dated 2.9.1993. The Board has already issued show cause notice to the complainant bearing No. 3638/A A dated 21.12.1993. The matter is at present under consideration of the Board. It was therefore prayed that since the allotment in favour of the complainant was not made in a regular manner the complaint petition may be rejected.

The People''s Co-operative House Construction Society Limited, Lohianagar (hereafter Society), opposite party No. (vii), in its written statement, has submitted that the complaint petition under Consumer Protection Act, 1986 preliminarily is not maintainable as the complainant is not a consumer in respect of opposite party No. (vii) and therefore opposite party No. (vii) was wrongly impleaded as a party in the present complaint case. According to the opposite party No. (vii), a total area of 597.22 acres of land in Kankarbagh was acquired by the Housing Department, Government of Bihar for developing planned colony to be executed by the Society. Since the Society could deposit Rs. 53,03,744/- only, an area of only 131.12 acres was allotment to it by the Housing Department in 1964 and lease in favour of the Society was executed on 17th January, 1968. Lay-out plan of 1600 plots was prepared as A, B, C, D, E, F, G, J and K Blocks and were registered by the State of Bihar in favour of the Society on 17.1.1968. The plot in question namely B-187 is a part of this project and Housing Board had no right, title or interest in the above plot. The Board had no right to make settlement or allotment of the said plot to the complainant. The Society has been continuously coming in possession of the said plot since 17.1.1968. The allegations regarding usurping the construction materials by the Society were denied. The boundary wall around B-183 to B-188 was constructed by the Society as far back as in March, 1992. Therefore there could not be any possibility of the complainant''s builder to dump construction materials worth Rs. 75,688/ - at the site of B-187. The opposite party (vii) therefore submitted that the complainant is not entitled to any compensation from the Society.

THE learned Counsel on behalf of the complainant, on behalf of the Board, opposite parties (i) to (vi) and also on behalf of the Society, opposite party No. (vii) were heard. THE learned Counsel on behalf of the complainant offered to accept suitable alternative plot in place of plot No. B-187 when the Board had miserably failed to make the allotted plot available to the complainant. THE learned lawyer on behalf of the Board was allowed time to consult her clients if they could accept the offer and provide suitable alternative plot to the complainant. THE learned lawyer later informed the Commission that the Board has difficulty in accepting the offer and therefore the learned lawyers on behalf of all the parties concerned may be heard on merits. THE learned lawyer on behalf of the Board, opposite parries (i) to (vi) did not repudiate the stand taken by opposite party (vii). On perusal of the record it appears that the written statement filed by the learned lawyer on behalf of the Board appears to be vague and incomplete inasmuch as the points raised by the opposite party No. (vii) in his written statement and also during arguments were not refuted leading us to hold that the plot No. B-187, in question belonged to the opposite party No. (vii) and the Board did not have any right and title on the plot in question to allot the same to the complainant. The various plots raised by the complainant have also not been covered in the written statement of the opposite parties (i) to (vi). The complainant had gone to the alleged site on 14.9.1991 for constructing boundary along the plot. He was obstructed by opposite party No. (vii). He personally informed the opposite party Nos. (iii) to (vi) and he as mentioned above had sent as many as eight letters to the Board that the opposite party No. (vii) was not allowing him to start construction in the plot allotted to him by the Board. But all his letters and personal approaches at various levels failed to stir the Board officials to act in any manner. No action was also initiated by the Board when alleged boundary wall along the plot in question was being constructed by opposite party No. (vii) in February-March, 1992. This goes to corroborate that the above plot belonged to opposite party No. (vii) as a settlee as claimed by the Society and not to the Board.

IN such circumstances, allotment of plot No. B-187 to the complainant vide opposite party''s letter No. 2041/AA dated 21.8.1991; entering into hire-purchase agreement with him and directing him to deposit monthly instalments besides earlier deposit of Rs. 36,100/- without any chance of delivering the plot to the complainant was without jurisdiction. The Board has referred to Building Construction and Housing Deptt.''s letter No. 1977 dated 25.9.1991 and No. 544 dated 27.3.1993 although the same have not been brought on record. The C.M.D. of the Board was directed to verify the allotment made but the opposite parties (i) to (vi) have not brought anything on record to show that the C.M.D. in pursuance to the above direction of the Deptt. has so far done anything. They have however stated that the show cause of the complainant received in response to Board''s letter No. 3638/A dated 21.12.1993 is under consideration. Result of action taken by the Board is yet not known. But the Board, as is apparent from record, has not yet cancelled the allotment letter No. 2041/AA dated 21.8.1991. It is apparent from record that deposit of Rs. 50/- as registration fee, deposit of Rs. 5,000/- as earnest money on 1.12.1981 by the complainant are admitted. It has not been disputed that allotment letter No. 2041 / AA dated 21.8.1991 was issued in favour of the complainant allotting him the plot No. B-187 in Lohianagar and directing him to deposit the balance payable amount. The allotment letter has been brought on record on affidavit. It has also not been disputed that hire-purchase agreement between the complainant and the opposite party was executed on 27.8.1991 after deposit of the balance amount by the complainant. It has not been disputed that possession of the plot was given by the opposite party vide their letter dated 10.9.1991. Further it has also not been disputed that the complainant, as per terms of the hire-purchase agreement, regularly deposited required monthly instalments from September, 1991 till November, 1993. The only relevant point raised by the opposite parties (i) to (vi) on behalf of the Board is that the C.M.D. of the Board had not made the allotment in a regular manner for which no one else than the Board itself can be held responsible. The Board had ample time from August, 1991 till today to amend the alleged wrong action of the C.M.D. who is the Chief Executive Officer in the Organisation. Nothing in this regard appears to have been done by the opposite parties except subjecting the complainant to harassment and tearing mental agony because of galloping escalation in price of land and construction materials in this period. The opposite parties on the other hand in their written statement in para 7 have admitted that applicants senior and also junior to the complainant have been allotted plots in Patna by the Board. It is unfortunate that inspite of eye- opening judgment of Hon''ble the Supreme Court in Lucknow Development Authority v. M.K. Gupta, in III (1993) CPJ 7 (SC)=Civil Appeal No. 6227 of 1990, several judgments of National Commission in this regard, the Board does not appear to be stirred to be more objective, responsive and care-taking towards protection of the interests of the Consumer in keeping with the legislative intentions of welfare oriented Consumer Protection Act, 1986. It is disturbing to note the lack of sense of administrative accountability in the Organisation. The Board has stated in its written statement that the C.M.D. had made an irregular allotment of the aforesaid plot not in accordance with the Board resolutions. But even explanation does not appear to have been called for from the concerned officer. Allotment order No. 2041/AA dated 21.8.1991 was issued by the Board in respect of plot No. B- 187 when the Board had ceased to have right and title on the aforesaid plot. No action seems to have even been initiated against such errant officer who was responsible for such lapse. The Board in pursuance of the administrative department''s letter Nos. 1977 dated 25.9.1991 and 544 dated 27.3.1993 has yet not taken any decision in this regard and kept on merrily accepting hard-earned money of the complainant for years. Such Welfare Organisations like the Board had been created by the State to provide better, efficient and cheaper services to the people. But a sum of Rs. 56,203/- of the complainant is still idly locked in the Board since several years. The complainant had offered to accept alternative plot in case B-187 in Lohianagar could not be made available to him. The Board expressed its inability to accommodate the complainant by offering him an alternative plot. The Board also failed to bring to the notice of the Commission the action taken in the show cause in respect of the allotment order No. 2041/AA dated 21.8.1991. The aforesaid allotment order has neither so far been cancelled nor withdrawn leaving the complainant in a state of doldrum. The complainant in the meantime has submitted a petition under affidavit with a copy to the learned Counsel of the Board wherein he has averred that : (a) Construction cost has escalated in the period from Rs. 150/- per sq.ft. to Rs. 350/- per sq.ft. (b) He had spent Rs. 1,00,800/- on house rent in last seven years as he could not construct his own house. (c) He would now be required to pay monthly instalment of Rs. 1,515/- against Rs. 980/- on house building advance by his employer. He has to suffer the losses because of delay in giving him the physical possession of the plot in question by the Board. He may therefore accordingly be compensated for the losses suffered by him.

THE Board has not repudiated the points raised in the petition. It is well known that there has been steep hike in price of construction materials and labour rates because of which construction cost may not now be less than Rs. 350/- per sq.ft. of plinth area. THE Executive Engineer, being Class-I Officer in the State, could have easily afforded to construct a house with plinth area of atleast 1,000 sq.ft. specially when he had the advantage of getting house building loan from his employer. THE investment now required for construction of such house would not be less Rs. 3,50,000/- compared to Rs. 1,50,000/- in early 90s. THE complainant may thus suffer a loss of Rs. 2,00,000/- only on this account. THE complainant has further stated that he has paid Rs. 1,00,800/- as house rent in the last seven years for which he may be compensated. He has furnished no details in this regard. Assuming that physical possession of the plot would have been given to him without abnormal delay he could not have completed the house in 1991 itself. It may be fair however to allow him house rent at the rate of Rs. 1,000/- per month with effect from 19.12.1993, the date of filing of the complaint till the date of this order. THE complainant also stated that he would now be required to pay monthly instalment of Rs. 1,515/ - against Rs. 980/- had he taken housing loan from his employer in 1991. THEre does not appear to be any loss to him on this account except that he might have to put up with financial hardship.

THE complainant in his complaint petition under relief has prayed for giving direction to the opposite parties to hand over the physical possession over plot B/187 in Lohianagar which is not possible now in view of the facts mentioned above. THE complainant has further claimed a sum of Rs. 3,00,000/- on account of mental agony and lowering of his prestige and Rs. 1,00,000/- for harassment and conveyance charges. THEre may not be any denying the fact that he has been subjected to harassment and mental agony because of capricious action of the opposite parties. He may now have to spend not less than Rs. 4,00,000/- for acquiring the same area of plot which he was to get only for Rs. 72,000/-. Mental agony caused to the complainant on this account would naturally have been intense. To meet the ends of justice, a sum of Rs. 1,00,000/- (Rs. one lac) may be considered reasonable on account of harassment and mental agony since 1991. No details of expenditure on account of conveyance have been furnished. As such, the same is not being considered. THE complainant has stated that he suffered loss of Rs. 75,668/- due to opposite party No. (vii). As regards the relationship of complainant with opposite party No. (vii) is concerned it is held that the complainant is not a consumer with respect to opposite party No. (vii) and therefore no claim of the complainant for loss/damage caused by or due to opposite party No. (vii) can lie before this Commission. This Commission is not the appropriate Forum where allegation of the complainant that opposite party No. (vii) usurped his construction materials worth Rs. 75,668/- can be adjudicated. THE complainant may seek redressal, if he so likes, in proper Court for such complaint. In view of the discussion in previous paragraphs it is apparent that the Board had allotted plot No. B/187 to the complainant as far back as in August, 1991. The Board had no right to settle that plot to the complainant as the plot in question had already been settled with the Society. Allotment without authority wrongly done by the Board has not been cancelled till the final hearing of this case. It has not been possible for the Board since 1991 till today to provide alternative site to the complainant when he was a registered applicant of the Board with deposit of adequate earnest money since 1981. The Housing Board had acquired 597.22 acres of land in Kankarbagh out of which 131.12 acres had been settled with the Society, the opposite party No. (vii). The Board was left with 466 acres of land. The entire land had not been allotted to the registered applicants. But still no action was taken by the Board to redress the grievance of the helpless complainant. Such negligence and inaction of the authorities clearly points out not only to gross deficiency in service but denial of service on the part of the Board. We hold in the circumstances that the complainant is rightfully entitled to compensation for the damages suffered by him as under : (a) Total sum of Rs. 56,203.20 deposited by the complainant shall be refunded to him by the Board with interest at the rate of 12% with effect from respective dates of deposit upto 19.12.1993, the date of filing of the complaint petition between the Commission and interest at the rate of 18% thereon (i.e. Rs. 56,203.20 plus interest @ 12%) with effect from 20.12.1993 till date of payment. (b) A sum of Rs. 2,00,000/-(Rs. two lacs) shall be payable by the Board to the complainant as compensation for likely extra expenditure in construction of house. (c) The Board shall also pay house rent at the rate of Rs. 1,000/- (Rs. one thousand) to the complainant with effect from 19.12.1993 till the date of this order. (d) The Board shall further pay a sum of Rs. 1,00,000/- (Rs. one lac) to the complainant for subjecting the complainant to immense mental agony and harassment. The above amount shall be paid to the complainant by the Board within two months from the date of receipt of this order failing which the Board shall be liable to pay interest at the rate of 18% on the above amount.

It is unfortunate that the Board and in turn, our Society is being burdened to pay the compensation for act of gross negligence and oppressive omissions and commissions of its officers and employees. Some urgent steps are essentially needed to be taken to check arbitrary and capricious exercise of authority in such utility- service Organisations. It is clear from the papers brought on record by the Board that Chairman- cum-Managing Director of the Board and some officials of the Board were responsible for issue of allotment letter in respect of plot No. B/187 over which the Board had ceased to have any right to allot the said plot. The Secretary of Building Construction and Housing Department, the Administrative Department of the Board will enquire into the case and recover full amount of compensation or a part thereof depending on gravity of lapse, from the then C.M.D. and the officials responsible for issue of allotment letter No. 2041 dated 21.8.1991 in respect of plot No. B/187 if they are found at fault.

A sum of Rs. 2,000/- (Rs. two thousand) as cost is allowed to the complainant to be paid by the Board. Let a copy of the judgment be given/ sent to both the parties. A copy of the judgment be also sent to the Secretary Building Construction and Housing Department for information and necessary action. Complaint allowed with costs.