TAMIL NADU HOUSING BOARD vs T.V.SUBRAMANIAN

THE opposite party is the appellant in the appeal filed against the O.P. No. 171/98 on the file of the District Forum, Madurai.

THE case of the complainant is as follows: He was informed by the opposite party by letter dated 3.2.1988 to take over the house since the entire cost of Rs. 1,01,500 for the building had been received. THE outright sale of the house to the complainant by the opposite party was complete and final as per the report dated 4.2.1988 and ever since the complainant had been paying the maintenance charge of Rs. 100 per month. THE opposite party was duty-bound to execute the sale deed after expiry of the period of 5 years from the date of taking possession as per Clause 17 of Tamil Nadu Housing Board Flat Scheme. Five years period expired on 3.2.1993. However, by letter dated 31.12.1997 the opposite party demanded payment of Rs. 43,067 being the balance of cost of the flat on or before 10.1.1998. No details were found in that letter. THE complainant sent a letter dated 22.1.1998 stating that no amount was due from him to the opposite party. THE opposite party by letter dated 6.4.1998 finally informed the complainant that the balance of Rs. 44,359 should be remitted on 30.4.1998. THE question of failure to remit the full cost did not arise. THE opposite party''s computation and calculation of claiming Rs. 1,49,852 and demand of Rs. 43,067 or Rs. 44,359 was illegal, improper and unjust and not a condition precedent for execution of the sale deed. The opposite party resisted the complaint contending, inter alia, that the complainant had not paid the entire cost. The rate fixed by the opposite party was tentative and not final cost, that the final cost would be decided only just before the time of execution of sale deed by considering the land cost and capitalization and maintenance charges, since the land cost might be modified or verified according to the land acquisition proceedings and other proceedings pending before the various Courts. The complainant had to pay the capitalization charges and other maintenance charges even if they had been left out at the time of handing over the house. The complainant could not take advantage that the capitalization charges were not demanded by the Board as per the calculation done at the time of handing over the house. The Board had power to collect all the leftout charges as per the agreement. The complainant could not take advantage of the Clause 17 of the agreement since the sale deed could be executed only after the clearing of all dues. The Consumer Forum had no jurisdiction. The demand of the opposite party was correct. There was no unfair trade practice and deficiency in service. The demand was not barred by limitation.

On the above pleadings, the following points were raised for determination by the District Forum. (1) Whether the complainant is a consumer? (2) Whether there is deficiency in service and unfair trade practice on the part of the opposite party? (3) Whether this Forum has no jurisdiction to entertain the complaint? (4) Whether the demand made by the opposite party is barred by limitation? (5) Whether the complainant is entitled to get reliefs as prayed for in the complaint?

ON the side of the complainant Ex. A1 to Ex. A16 were marked and on the side of the opposite party Ex. B1 to Ex. B15 were marked. No witness was examined. On the basis of materials produced, the District Forum directed the opposite party to cease and desist from the demands made by its letters Nos. R6/23731/86 dated 31.12.1997 of a sum of Rs. 43,067 as on 10.1.1998 and R7/23731/86 dated 6.4.1998 for Rs. 44,359 from the complainant and to pay Rs. 3250 (Rs. 2000 as compensation for mental agony, shock, etc., Rs. 1000 towards cost of litigation and Rs. 250 towards cost of lawyer notice) to the complainant on or before 3.5.2000. This order came to be passed on 7.4.2000.

IT is as against this, the present appeal has been filed by the opposite party. The dispute is, whether the difference between the tentative cost which was intimated at the time of allotment dated 3.2.1988 and the final cost intimated on 31.12.1997 in a sum of Rs. 43,067 as on 10.1.98 and Rs. 44,359 as on 6.4.1998 which included the carrying charges i.e., interest on the above said amount of Rs. 43,067 is liable to be paid by the complainant. The learned Counsel for the appellant Housing Board submitted that the allotment order clearly mentioned that it was tentative cost and that the L.C.S. agreement executed by the opposite party also clearly envisaged that the cost was only tentative. According to the Counsel, the demand for Rs. 43067 was correct. It is pertinent to point out that the opposite party cannot keep the complainant and persons similarly placed in suspense forever. At the time the amount was paid, it was made clear that was the final amount. No doubt the allotment order mentions about tentative cost alone having been collected and there would be variation later on.

IN a judgment in W.P. No. 10771 of 2000 decided on 23.9.2005 wherein the writ petitioner before the High Court of Madras sought mandamus against the Chairman, Tamil Nadu Housing Board, Chennai and the Executive Engineer and Administrative Officer, Hosur Housing Unit, TNHB, Hosur directing them to execute and register the sale deed in favour of the petitioner in respect of the property detailed in the writ petition without insisting upon any amount being paid over and above the amount fixed and paid already by the petitioner for the property allotted to him, the High Court has held following the earlier judgment dated 30.9.2004 by a Division Bench in W.P. No. 3739 of 2004 that as far as the development charges, cost of amenities and cost of buildings are concerned, since they had been already crystallized on the date of allotment, there could not be any enhancement of that component beyond the period of three years from the date of allotment. But with regard to the enhancement in respect of land, there could not be any objection on the part of the allottee. IN such circumstances, the High Court passed the following order: "It is open to the Housing Board to serve a demand in writing on the writ petitioner, indicating the difference between the original cost of land and the enhanced cost of land (the enhanced cost of land is on the basis of the finalization of the cost of land) asking him to pay the said amount within a time as may be fixed by them and depending upon the outcome, it is open to the Housing Board to take any appropriate action that may be available to them."

TAKING the cue from this decision, the order of the District Forum shall stand modified as follows: The Housing Board shall not be entitled to call upon the complainant to pay development charges, cost of amenities and cost of buildings as they had already been worked out on the date of allotment and there cannot be any enhancement of that component beyond the period of three years from the date of allotment. So far as the land cost is concerned, the Housing Board shall serve a demand in writing on the complainant, indicating the difference between the original cost of land and the enhanced cost of land asking him to pay the said amount within a time as may be fixed by them and depending upon the outcome, it is open to the Housing Board to take any appropriate action that may be available to them. On payment of the amount by the complainant of the difference in the cost as set out above, the Housing Board shall execute the sale deed in favour of the complainant without demur. The order of the District Forum shall stand modified as indicated above. There will, however, be no order as to costs in the appeal. Ordered accordingly.