BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri K.V.H. Prasad, B.A., LL.B., President
Smt C.Preethi, M.A., LL.B., Member
Sri R.Ramachandra Reddy, B. Com., LL.B., Member
Thursday the 22nd day of December, 2005.
C.D.No.110/2005
Bandaru Kristanna, S/o Lakshmanna, Aged 54 years, Employee,
Resident of Atmakur, Kurnool District.
. . . Complainant
-Vs-
1. Executive Engineer (Housing),Kurnool Division,
A.P.Housing Board,Abbas Nagar, Kurnool.
2. A.P.Housing Board, Rep. by its Vice Chairman and Commissioner,
Gruhakalpa, Hyderabad.
. . . Opposite Parties
This complaint coming on 19.12.2005 for arguments in the presence of Sri W.Nagi Reddy, Advocate, Atmakur for complainant and Sri P.Siva Sudarshan, Advocate, Kurnool for opposite parties No.1 and No.2, and stood over for consideration, till this day, the Forum made the following.
O R D E R
(As per Sri.K.V.H.Prasad, Hon’ble President)
1. This CD case of the complainant is filed under section 12 of C.P.Act seeking a direction on the opposite parties to Execute Registered sale dead in favour of the complainant for the house N.59 MIG phase-III, Kurnool and to refund Rs.82,821/- paid in excess with interest at 24% per annum and Rs.50,000/- as damages and costs of this case alleging himself as a allottee of house No.59 MIG phase-III, Kurnool of the opposite parties and in pursuance of letter No.59/MIG/KNL/PH-III/EE(H)/KNL/1071 paid Rs.8,250/- as balance amount and Rs.200/- towards plan charges besides paying all the amounts demanded by the opposite party from time to time and inspite of compliance of all required formalities and paying Rs.12,220/- for excess area of 48.8 Sq.yards, the opposite parties are not executing registered sale dead for said house in favour of complainant and on other hand demanding vide letter dated 24-1-2005 payment of Rs.10,998/- towards excess area of 6.11 Sq.yards at the rate of 1,800/- for Sq.yard besides an additional amount of Rs.50,911/- as balance amount and non response of the opposite parties to his letter dated 15-2-2005 and legal notice dated 21-3-2005 given in pursuance there of and the claim of Rs.1,800/- per Sq.yard is not justifiable as earlier rate for excess area collected was Rs.250/- for Sq.yard only and the acts of the opposite parties not only caused mental agony but also amounts to deficiency of service.
2. In pursuance of the receipt of the notice of this Forum as to this case of the complainant the opposite parties caused their appearance and filed their written version denying their liability to the complainants claim questioning the maintainability of the complainants case.
3. The written version of the opposite party No.1, adopted by the opposite party No.2, firstly adjust the dispute regarding the pricing of the house/flat/plot is not the consumer dispute and the complainant is not a consumer as contemplated under the consumer protection act and the dispute regarding excess area of land as is civil dispute the complaint is not entertainable by the Forum, secondly denies any excess receipt of amounts from the complainant as the payments made by the complainant were payments due under hire purchase installments, thirdly as on physical verification. The area said house was found 342.22 Sq.yards as against the allotted 336.11 Sq.yards the rate of Rs.1,743/- per sq.yard was assessed as per the then existing market value and demand was given to Rs.10,998/- for said excess area of 6.11 Sq. yards at the rate of 1,800/- per sq.yards and for the balance of sale price an amount of Rs.50,911/-, fourthly the non reply to legal notice was as the complainant was acquainted with the accounts and procedures on his visit to opposite parties office and without payment for the excess area and the balance of the sale consideration the complainants approach for redressal of his grievances is vexatious one and liable to be dismissed with costs in the interest of justice.
4. In substantiation of their respective contentions while the complainant side has made reliance on the documentary record in Ex.A1 to Ex.A29 besides to his sworn affidavit in reiteration of the complainant averments and replies to the interrogatories, the opposite party side as taken reliance on to the documentary record in Ex.B1 to B9 besides to its sworn affidavit in reiteration of its defense and the replies to the interrogatories.
5. Hence, the point for consideration is whether the complainant has made out the case against the opposite parties and there liable for the claim.
6. The Ex.A1 to A20 are the receipts for the amounts received by the Housing Board, Kurnool from the complainant and the Ex.A23 is a covering letter enclosing there to the computer statement of payment details issued by the opposite party No.1 totaling the receipts to the tune of Rs.1,49,694/-. The Ex.A22 is Xerox copy of letter dated 19-3-2002 of the opposite party No.1 addressed to the complainant requesting him to furnish a photo, three specimen signatures attested by the gazetted officer and copy of the property tax receipts paid to said house and payment by DD in favour of the opposite party No.1 an amount of Rs.8,250/- as balance of sale price of house No.59/MIG/KNL and Rs.200/- towards plan charges totaling to an amount of Rs.8,450/- for the purpose of registration and the Ex.A21 evidences the payment of amount so required in Ex.A22.
7. The Ex.A24 a Xerox copy of letter dated 11-11-2003 addressed to opposite party No.1 by the complainant, alleges the amounts shown therein were not accounted in the Ex.A23 – computer statement of payment received for said house from him – and request their crediting which are amounting to Rs.52,342/-. The perusal of the Ex.A24 in contrast with Ex.A23 indicates non accountability of items of Sl.Nos. 2,5 to 7, 9 and 12 of Ex.A24 which are acknowledged by opposite party No.1 vide receipts in Ex.A4, A1, A2, A9 and A11. The complainant except alleging the payment of Rs.2,284/- as per details mentioned at Sl.No.10 of Ex.A24 did not place any receipt evidencing its receipt by the opposite party. Therefore the said non adjustment of Rs.2,284/- does’nt appear to be a matter worthy of consideration. As the other items mentioned in S.No.Ex.A24 till 14-6-01 were acknowledged by opposite party in Ex.A23 and the receipt of Rs.8,450/- was also evidenced in Ex.A21 the liability of the opposite party is remaining for the accountability of amounts received under Ex.A4, A1,A2,A7,A9 and A11, A21 especially when the opposite party has not issued any statement of payment of particulars subsequent to Ex.A23 inspite of the request for the same from the complainant vide Ex.A24.
8. In Ex.A25 letter of the opposite party No.1dated 24-1-2005 addressed to the complainant in response to the alleged application dated 11-4-2002 of complainant requiring the complainant to pay on or before 30th December 2005 an amount of Rs.50,911/- towards the balance amount payable Rs.10,998/- as found on verification an excess area 6.11 Sq.yards in the said premises and the said costs to Rs.10,998/- at the rate of 1,800/- per Sq.yard, Rs.996/- as compounding fees for un authorized additions, alterations to compound wall to the extent of 961 Sq.feets and 70 running feet, Rs.700/- worth non judicial stamps in 6 or 7 sheets to meet the registration of final cost of Rs.90,998/- of said house along with a challan for registration fees ascertaining it in consultation with the concerned Sub-Registrar. This demand appears to have necessitated the issue of legal notice dated 21-3-2005 in Ex.A26 to the opposite party which is said to have been sent by register post vide postal receipt in Ex.A27.
9. The Ex.A28 a prior letter dated 15-2-2005 addressed to opposite party No.1 – alleges to have paid all amounts and says to have enclosing there to a list of DDs sent to the opposite party towards payment of the amount and request for registration of the house. The said list of DDs allege to have been enclosing with Ex.A28 is not placed by the complainant for appreciation. Neither any reference in Ex.A28 finds any place in Ex.A25 nor any piece of evidence is filed by the complainants side as to receipt of the Ex.A28 by the opposite party nor any of its reference finds in Ex.A26 notice dated 21-3-2005.
10. The Ex.A29 is filed by the complainant alleging its issual by the Regional Housing Engineer A.P.Housing Board, Kurnool as to the revised tentative cost and cost escalation of MIG house at Kurnool III phase approved by VC and HC. It does not provide any particulars as to when and to whom it was issued to find its relevant appreciation.
11. While such is so with the material relied by the complainant the Ex.B1 issued by the opposite party envisages the allotment of house under MIG housing scheme at Kurnool on the base of drawal of lots held on 26-10-1986 to the complainant and fixing tentative cost of the house at Rs.64,000/- requiring the complainant to pay Rs.18,200/- towards 30% tentative cost within the 30 days from there on, to execute agreement for sale on supplied proforma affixing to it Rs.5/- adhesive stamp and Rs.7.50/- towards the cost of set of printed proforma of agreement by a purchase DD in favour of opposite party No.1, to provide pass port size photo of complainant affixing it to the right hand top front page of said agreement, to furnish nomination Form 10, to pay the balance of tentative cost of Rs.44,800/- at the rate fixed in quarterly installments, to bind himself to the final cost as and when it was arrived and to bind to the provisions of APHB Act, rules and regulations made there under in force from time to time and the complainant to forego allotment amounts paid and forfeiture of the registration in case of default of the compliance of said requirements within the stipulated time.
12. The Ex.B2 is attested Xerox copy of agreement for sale of independent house, entered in between the APHB and the complainant on 18-1-1989 allotting house No.59/MIG with the identified boundaries and specific measurements, incorporating there in the terms and conditions as to payment of periodical installments and escalated cost and liability of the complainant to increase costs also. Hence under Ex.B2 the complainant is bound for the said terms and conditions covering said contingencies.
13. The Ex.B3, statement of payments made by the allottee certified by the opposite party No.1, indicates therein the amount received in total including the plan charges and the Ex.B4 to B9 envisages the various calculations on which cost was arrived and various adjustments and factors in working out the balances. As the complainant under agreement Ex.B2 bind himself for the final cost and to the contingencies relevant in arriving at final cost he remains liable to pay the final cost as worked out taking several factors in to consideration, for having registration.
14. The grievance of the complainant on the opposite parties is as to the demand of enhanced cost and questioning such a fixation by the opposite party. Hence the further point remaining for consideration is whether the said grievances comes under the purview of the Consumer Protection Act and the complainant in the light of his grievances acquires any status of consumer to be governed by the Consumer Protection Act provisions in adjudicate of the same.
15. The fixing of final price of house Flat/Plot does not fall under jurisdiction of Forum and such a complaint is nor maintainable in Fora as per the decision of the Hon’ble Tamil Nadu State Consumer Disputes and Redressal Commission Chennai as held in the case of Executive Engineer and Administrative Officer Madras Housing unit -Tamil Nadu Housing Board V/s S.Arivukkodi reported in III (2004) CPJ page 374, by the Hon’ble National Commission on 17th September 1996 in RP.No.1084/95 in between Executive Engineer and Administrative Officer, Tamil Nadu Housing Board, Tatabad Coimbatoor V/s Nirmala Patrick, by the Hon’ble National Consumer Disputes and Redressal Commission in Commissioner Gujarat Housing Board and another V/s Thekkar Somalal reported in 1998 NCJ 633, in Gujarath Housing Board V/s Datania Amithalal Fulchand and other reported in III 1993 CPJ page 351 (NC), in Gurinder Bedi V/s Delhi Development Authority reported in III (1993) CPJ 404 (NC), in Housing Board Haryana V/s Karthar Sing etc., of Hisser reported in I (1995) CPJ page 7 (NC), in Manoharlal Sarma V/s Delhi Development Authority and another reported in I (1994) CPJ page 22 (NC), in Delhi Development Authority V/s AN Saignal reported in I (1996) CPJ page 34 (NC), in VK Nayar V/s Ghajiabad Development Authority reported in III (2003) CPJ 130 (NC), and Delhi State Consumer Disputes and Reddresal Commission New Delhi in Smt. Abha Ballani V/s Delhi Development Authority in I (2003) CPJ 30 (NC).
16. As per the decision of Hon’ble Orrissa State Consumer Disputes and Redressal Commission at Cuttack in Sri Kumari Ranjan Datta V/s the Orrissa Housing Board reported in VIII -1992 Consumer Protection reporter page 206 the house is not “Goods” and the complainant is not consumer in respect of the purchase of the house, and failure to register sale dead on the ground of non payment of part of consideration is not a defect in goods and the complainant in such a complaint is not a consumer and non registration sale dead on account of demand of higher price is only grievances and it does not amount to deficiency in service.
17. The Hon’ble National Commission in housing board Haryana V/s Kastar Sing Etc. of Hissar reported in I (1995) CPJ page 7 (NC) holds that if in amount has been illegal charged by housing board the proper forum for the complainant is to recover it from housing board through civil court.
18. The documentary evidence in Ex.B3 to B9 from its technical nature requires a elaborated evidence for their appreciation as they are not so self explanatory and intelligible for non technical mind and in such a case the Hon’ble Gujarat State Consumer Disputes and Redressal Commission at Ahmadabad in Bhagavandas Khubchand Mulani V/s Manger Cargo Motors Ltd., and another reported in 2004 CPJ 529 holds that such a dispute is not a consumer dispute and to be relegated to civil court.
19. The decision of the Hon’ble Calcutta High Court rendered in Smt. Mandira Mukarji V/s District Consumer Disputes Redressal Forum reported in 2005 (3) APLJ page 33 (CC) holding the non execution and non registration of agreement as to sale of immoval property is deficiency of service enforceable by the District Consumer Forum, does not appear to be relevant to the facts of our present case as the agreement for sale immoval property covered there under was one which could be executable under specific relief act and when no part performance is due on the part of the person seeking said relief and in the present case the dispute being as to the fixation of final cost arrived, demanded for effecting registration and the complainant’s seeking for registration of the house questioning the said final cost arrived and demanded, which could be gone through by this Forum as per the catena of decision cited above and this being remaining as a matter to be agitated before a civil court.
20. The complainant alleges earlier the rate collected for excess area was at Rs.250/- per Sq.yard and for subsequent excess area found demanded a rate of Rs.1,800/- per Sq.yard and hence the said demand for higher rate is not justifiable and therefore the opposite parties are entitled to the rate of Rs.250/- only for any excess areas found and not at Rs.1,800/- per Sq.yard. The Hon’ble Rajastan State Consumer Disputes Redressal Commission at Jaipur in the secretary Rajastan Housing Board and other V/s Prem Chand reported in 1994 (3) CPR page 670 – in a case where the rate of land earlier fixed was Rs.182/- per sq. meter and in the allotment letter it was demanded at Rs.260/- per Sq. meter - did not upheld the order of the District Forum directing the Housing Board to realize the former rate of 182 per sq. meter as such a relief is not envisaged by Section 14(1) of Consumer Protection Act 1986 and such a direction is a relief not envisaged by Section 14(1) of Consumer Protection Act 1986 cannot be granted. Hence the complainant hereing also is not remaining entitled to said relief as to reduction of the rate as to excess area.
21. Therefore in conclusion of the above discussion as the grievances of the complainant from its nature as is not covered under the perview of the consumer protection act to give any relief, there appears any a Consumer Dispute which can be adjudicated by this District Forum. Consequently there being any jurisdiction to this Forum for adjudication of dispute complained by the complainant, this complaint is dismissed.
Dictated to the stenographer, transcribed by him, corrected and pronounced in the Open Court this the 22nd day of December, 2005.
PRESIDENT
MEMBER MEMBER
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant: Nil For the opposite parties: Nil
Exhibits Marked for the complainant:
Ex.A1 Receipt, Dt.14-11-1986 amount paid of Rs.18,200/-
Ex.A2 Receipt, Dt.29-11-1988 amount paid of Rs.(693+7.50)700.50/-
Ex.A3 Receipt, Dt.15-04-1989 amount paid of Rs.1,391+5=1,396/-
Ex.A4 Receipt, Dt.6-12-1989 for Rs.3,608/-
Ex.A5 Receipt, Dt.13-6-1990 for Rs.2,284/-
Ex.A6 Receipt, Dt.22-1-1991 for Rs.1,804/-
Ex.A7 Receipt, Dt.19-9-1991 for Rs.10,695/-
Ex.A8 Receipt, Dt.4-9-1991 for Rs.3,426/-
Ex.A9 Receipt, Dt.12-4-1993 for Rs.5,710/-
Ex.A10 Receipt, Dt.15-10-1996 for Rs.4,510/-
Ex.A11 Receipt, Dt.28-12-1998 for Rs.10,000/-
Ex.A12 Receipt, Dt.7-5-1999 for Rs.10,000/-
Ex.A13 Receipt, Dt.13-7-1999 for Rs.5,500/-
Ex.A14 Receipt, Dt.8-9-1999 for Rs.5,000/-
Ex.A15 Receipt, Dt.12-10-1999 for Rs.5,000/-
Ex.A16 Receipt, Dt.22-3-2000 for Rs.7,000/-
Ex.A17 Receipt, Dt.21-8-2000 for Rs.10,800/-
Ex.A18 Receipt, Dt.13-12-2000 for Rs.5000+2500/-
Ex.A19 Receipt, Dt.20-3-2001 for Rs.7,500/-
Ex.A20 Receipt, Dt.14-6-2001 for Rs.7,000/-
Ex.A21 Receipt, Dt.11-4-2002 for Rs.8,450/-
Ex.A22 Xerox copy of letter, Dt.19-3-2002 to complainant
Ex.A23 Letter, Dt.19-7-2003 list of payment details to complainant total
Rs.1,49,694/-
Ex.A24 Xerox copy of letter, Dt. 11-11-2003 addressed by complainant to
opposite party of Rs.52,342/-
Ex.A25 Letter, Dt.24-1-2005 addressed by opposite party to complainant
of Rs.50,911/-
Ex.A26 Office copy of legal notice, Dt.21-3-2005 addressed by
complainant counsel to opposite party
Ex.A27 Postal receipt No.5624, Dt.19-3-2005
Ex.A28 Letter, Dt.15-2-2005 addressed by complainant to opposite party
Ex.A29 Statement showing the Revised Tentative cost and cost escalation
of MIG House at Kurnool
Exhibits Marked for the opposite parties:
Ex.B1 Attested copy of House allotted letter, Dt.27-10-1986.
Ex.B2 Attested copy of Agreement for sale of Independent House,
Dt.18-1-1989.
Ex.B3 Attested copy of list of payments made on the allottee.
Ex.B4 Attested copy of statement-II, scrutiny sheet, Dt.14-11-2003.
Ex.B5 Attested copy of Penal Interest Calculation sheet Dt.15-9-2004 (for
30%)
Ex.B6 Attested copy of statement-II scrutiny sheet (for 70%) Dt.14-11-03.
Ex.B7 Attested copy of Penal Interest calculation sheet (for 70%)
Ex.B8 Attested copy of statement-II, scrutiny sheet (HUDCO)Dt.14-11-03
Ex.B9 Attested copy of Penal Interest calculation sheet.
PRESIDENT
MEMBER MEMBER
Copy to:-
1. Sri. W.Nagi Reddy, Advocate, Atmakur
2. Sri. P.Siva Sudarshan, Advocate, Kurnool
Copy was made ready on:
Copy was dispatched on:
Copy was delivered to parties on:
