SUDHAKAR JOGI MOHANTI vs STATE OF ORISSA & ANR.

All these appeals arise out of common order of State Commission involving similar facts; hence, decided by common order.

These appeals have been filed by the appellants against the order dated 24.09.2009 passed by the Orissa State Consumer Disputes Redressal Commission, Bhubaneswar (in short, ''the State Commission'') in CDC Nos. 218 to 222/1993 ? Sudhakar Jogi Mohanti Vs. State of Orissa & Anr., Harun Rasid Khan Vs. State of Orissa & Anr., Bijay Kumar Mishra Vs. State of Orissa & Anr., Amarendra Sahoo Vs. State of Orissa & Anr. and V. Appa Rao Vs. State of Orissa & Anr., by which, complaints were dismissed.

Brief facts of the case are that Housing Board/OP No.2/Respondent No. 2 by an advertisement dated 28.07.1988 published in the daily ''Samaj'' called for applications from intending purchasers in the prescribed form for HIG houses proposed to be built at Chandrasekharpur on Nandan Kanan Road and at Jagamara near Khandagiri under Self-Financing Scheme and HUDCO Financing Scheme at a provisional cost of Rs. 2.5 lakhs having plinth area of 1,200 sq. fts. The expected date of completion of the houses was given as 31.12.1989. The applicants were required to pay as advance deposit along with application in the form of bank draft in favour of Orissa State Housing Board Fund. Preference was given to the applicants who would be depositing the entire cost of the house at one time or varying from 50% to 100% of the cost of the house. The last date of receipt of applications was 31.08.1988. Accordingly, the complainants/appellants applied for the said houses. Subsequently, on 11.08.1989, OP No. 2 intimated the complainants that the plinth area of the houses proposed to be built had been increased from 1200 sq. fts. to 1400 sq. fts. without changing the minimum cost of Rs.2.5 lakhs. The grievance of the complainants is that while the complainants paid up all the instalments in time as required by the Housing Board, the Housing Board did not fulfil their promise as to the completion of the houses and delivery of possession. On 18.12.1990, the complainants received a letter from the Housing Board wherein reasons for the delay in handing over possession of the houses were assigned. The letter also stated that the houses in question were nearing completion and the likely date of completion was indicated to be 31.03.1991. Thereafter, the Housing Board wrote many letters to the complainants for postponing the date of delivery of possession, the last such letter being dated 29.04.1992, wherein it was stated that the houses would be handed over by the end of May, 1992. The grievance of the complainants is that even after the said letter, delivery of possession was actually made during 1993. The further grievance of the complainants is that the lack of arrangement for water supply which could be clearly stated to be an instance of deficiency in service by the Housing Board. Housing Board in their letter dated 30.04.1990 intimated that the provisional cost of the house had been increased from Rs.2.5 lakhs to Rs.3 lakhs due to escalation of price. The instalments payable by the complainants were accordingly revised. In response to the communication from the Housing Board, when the complainants made specific request to know the reason for escalation and asked for a copy of the original estimate, the Board wrote to one of the purchasers, namely, Ramesh Chandra Vantaram, that it was not possible to furnish the estimate, either in original or revised. He was also asked by the Housing Board to take back his deposited money if he was aggrieved by the escalation of cost. This has been stated to be an open threat of cancellation of allotment, for which the complainants did not pursue their query any further. The complainants have stated that this conduct of OP No. 2 was a glaring example of highhandedness and arbitrariness, OP No. 2 being a mere builder was behaving like a despotic sovereign power. The Housing Board vide their letter dated 23.06.1992 intimated to one of the complainants, namely, Sudhakar Jogimohanty that construction of the house was complete and the final cost of the house was Rs.3,46,466/-. This complainant was asked to deposit the balance cost of Rs.46,466/- before taking delivery of possession of the house. After this, again the Housing Board/OP No. 2 wrote to the complainant further revising the final cost by enhancing it to Rs.3,60,458/- vide their letter dated 8.2.1993. This principle was also made applicable to the case of Sudhakar Jogimohanty who was by then already in possession of the house after having signed the agreement. The further grievance of the complainants is about the defects and deficiencies in construction of the houses due to the use of sub-standard materials and bad workmanship. Alleging deficiency on the part of OPs, complainants filed separate complaints for refund of excess amount, payment of cost of repair, payment of interest for delay in delivery of possession and compensation.

OP resisted complaint and submitted that due to escalation, the price relating to construction of the houses was revised to Rs.3 lakhs and accordingly the instalments were reframed fixing the payment of the last instalment by the end of December, 1990. They intimated the complainants by letter dated 30.04.1990 that in case of default in payment, interest at the rate of 15% would be charged on the defaulted amount. According to them, the delay in construction work of the houses was due to various reasons beyond their control and the reasons had already been indicated in their letter dated 8.12.1990. They have started in their written version that the final cost of the house was estimated and fixed at Rs.3,46,466/- as against the provisional cost of Rs. 3 lakhs and the same was communicated to the complainants on 23.06.1992. It was further stated that the increase in the cost and revision of price by escalation was due to certain unavoidable circumstances. They have stated that the reason for such delay and increase in the cost was intimated to the complainants in their letter dated 23.06.1992. They have further clarified that one of the reasons, which was beyond their control, was that the neighbouring tenants filed suits in the court of law. One Panchu Rout filed T.S. Nos. 176 of 1989 and 52 of 1990 and one Bahuda Sahu filed T.S. No. 4 of 1989 in the court of Munsif, Bhubaneswar and injunction orders were passed against the Board, which was still in force due to pendency of the suits. The other cause shown was due to continuous heavy rain during the year 1990-91, which resulted in non-availability of adequate building materials at appropriate time. Scarcity of cement and water amongst others was another factor for the cause of delay in construction of the buildings. In addition, there was also delay in installation of 33 KV sub-station by the Orissa State Electricity Board, which caused a setback to all these schemes in that area leading to the delay and handing over possession of the houses, though construction of the houses, including the houses of the complainants, was complete much earlier. In the written version, it was further stated that due to gulf crisis and high inflation, the cost of building materials increased enormously, which increased the cost of labour and the minimum wage was raised to Rs.25/- from Rs.12.50 with effect from 01.07.1990. The other cause for delay in construction was due to objection to drainage and sewerage system raised by the nearby villagers, who specifically objected to the soak pits and septic tanks to be built on the ground of pollution. Looking to the objection of the people of the locality, the Board decided to purchase one acre of private land from the nearby villagers to construct the septic and soak pits. Thus, the Board was constrained to make an expenditure of Rs. 8 lakhs. Furthermore, the length of the sewerage line originally conceived had to be considerably increased in order to connect the septic tank resulting escalation of cost for laying of additional pipe. The Housing Board had to undertake the responsibility of maintaining water supply in their schemes and the State P.H.D. withdrew from maintaining the same. The provision of street lighting, which was to be maintained by the municipal authorities, was denied subsequently and the Housing Board had to undertake the lighting arrangements in the colony. The extra cost that had to be borne by the OP-Board on account of the afore-mentioned reasons has been given in detail in the written version, and the same constrained the Board to increase the final cost of the house from Rs.3,46,466/- to Rs.3,60,000/-. Justifying the escalation of cost of the house, it was stated that from time to time this fact has been intimated to the complainants-allottees of the houses. It has been commented that after taking over possession of the houses with complete construction and in good condition in all respects, the complainants have filed these cases with a view to make illegal gain. Construction of hundreds of houses under a big scheme is ordinarily to take two years or more time than the stipulated time frame due to obvious reasons and problems faced during the period of construction. As such, explaining the delay and the escalation of price of the houses, the OPs have stated that there was no deficiency in service on their part either in the matter of construction of cause of delay. Denying any deficiency on their parts, prayed for dismissal of complaints. Learned State Commission vide order dated 31.12.1998 allowed complaints and directed OPs to pay interest @ 15% p.a. on amount deposited on account of delay in delivery of possession and further directed to remove defects and quashed demand of additional amount. Appeals filed by OPs were allowed by this Commission vide order dated 15.3.2007 and matters were remanded back to State Commission to appoint expert for estimating cost of repairs. Learned State Commission after remand, dismissed complaints by impugned order against which, these revision petitions have been filed.

None appeared for Respondent No. 1 even after service of notice and he was proceeded ex-parte.

Heard learned Counsel for the parties and perused record.

Learned Counsel for appellant submitted that inspite of proof of delay in handing over possession, defects in construction and charging excess amount than depicting in final call letter and sale deed, Learned State Commission committed error in dismissing complaints; hence, appeals be allowed and impugned order be set aside and complaints be allowed. On the other hand, learned Counsel for Respondent No. 2 submitted that order passed by learned State Commission is in accordance with law and further submitted that appellant in Appeal No. 190 of 2010 already sold allotted house prior to filing of appeal; hence, appeals be dismissed.

It is not disputed that complainants applied for allotment of houses to the OPs in July, 1998 and expected date of completion of houses was given as 31.12.1989. It is also not disputed that possession of house was given by OP to complainants in the year 1993. Thus, it becomes clear that delivery of house was to be made in 16 months whereas delivery has been given after more than 56 months. Learned State Commission observed that delay was caused due to some litigation and due to non-availability of raw material and due to not providing electricity lines by Electricity Board. No doubt, some delay in handing over possession of houses can be condoned on account of litigation, etc., but against 18 months period, delay of 38 months cannot be permitted and in such circumstances, at the most, additional 1? year period can be deemed to be reasonable for construction of houses and learned State Commission in its earlier order dated 31.12.1998 rightly allowed compensation for the period of delay from 31.7.1991 to the date of actual delivery, but learned State Commission allowed 15% p.a. interest on the deposited amount which should be reduced to 12% p.a. and learned State Commission by the impugned order has committed error in observing that the delay occurred in delivery of possession was beyond control of OP.

Learned Counsel for appellant submitted that inspite of many defects in the construction, learned State Commission committed error in dismissing complaint on this point. Learned State Commission in the light of judgment of this Commission dated 15.3.2007 appointed Head of Department, Civil Engineer in Orissa Engineering College, Bhubnewar as expert and he reported that no repairs were required; so, no question of submitting estimate. In such circumstances, learned State Commission has not committed any error in not awarding any amount for carrying out repairs by the complainants.

Learned State Commission has considered escalation of price by OP and observed that State Commission cannot go into the question of pricing of the house. Complainants have claimed refund of excess amount charged by OP from the amount mentioned in final call letters and mentioned in sale deeds. OP cannot charge more amount towards sale price of the house than shown in sale deed and OP is bound to refund excess amount charged with interest. Learned Counsel for respondent could not show how respondent was entitled to charge excess amount than shown in the sale deed and in such circumstances, appeals are to be allowed to this extent that appellants are entitled to receive excess amount charged by respondents from the amount shown in sale deeds with 12% p.a. interest from the date of payment till refund.

Learned Counsel for respondents submitted that in F.A. No. 190 of 2010, complainant sold house prior to filing of appeal which fact was admitted by learned Counsel for the appellant. Sale of house will not preclude appellant from claiming amount pertaining to delay in delivery of possession as well refund of excess amount than required.

Consequently, appeals filed by appellants are partly allowed and impugned order 24.09.2009 passed by the learned State Commission in CDC Nos. 218 to 222/1993 ? Sudhakar Jogi Mohanti Vs. State of Orissa & Anr., Harun Rasid Khan Vs. State of Orissa & Anr., Bijay Kumar Mishra Vs. State of Orissa & Anr., Amarendra Sahoo Vs. State of Orissa & Anr. and V. Appa Rao Vs. State of Orissa & Anr. are partly modified and respondents are directed to refund excess amount as indicated above with 12% p.a. interest from the date of receipt till refund and 12% p.a. interest for delayed delivery of possession from 1.8.1991 till handing over possession within 30 days, failing which, this amount will be payable with 15% p.a. interest.