(Passed On 15/09/2015)

Per Mr. S.B. Sawarkar, Hon’ble Member

1. The following appeals are filed against the common order of the District Forum, Chandrapur passed on  29/6/2015  in the  following complaints.

1. Complaint No. 2/2006 filed by Ramdas Govindrao Giradkar
2. Complaint No. 3/2006 filed by Narayan Maroti Reddy.
3. Complaint No. 4/2006 filed by Arun Namdeorao Zade
4. Complaint No. 5/2006 filed by Maroti Atre

          These four complaints were filed against the same opposite party (for short OP), the authorized officer, Nagpur Housing & Area Development Board.

2. The common order directed the OP

1. To repair the tenaments in the span of six months from the receipt of the order and after receiving the amount of 1,86,300/- in the span of six weeks in four installments and should provide to the complainants by cleaning the surrounding area.
2. The OP to provide Rs. 10,000/- each and the cost of Rs. 1,000/- each as mental and physical harassment and cost to each complainant.
3. The complainants after the receipt of order in the span of 15 days should inform the OP in writing whether the complainants are ready to deposit the above referred price of the house to the OP if not willing should also be communicated.
4. Thereafter the OP in the span of 15 days should provide in the duration of 15 days with demand note to deposit the first installment of the price of the house to those complainants who are willing to purchase the house and thereafter should collect the remaining amount regularly.
5. In case of those complainants who are not willing to purchase the house or do not deposit the first installment in the given period, the OP should provide the agony amount and cost together as Rs. 16,000/- in the span of one month to such complainant without fail.
6. If the OP fails in it, it would remain liable for action and fine under Section 27 of the Consumer Protection Act.
7. The Chief Engineer of the OP based in Mumbai should conduct the enquiry in the present issue in the light of the judgments passed and recover the entire loss caused above from the officers and workers of the OP who are responsible in the span of three months.
8. The copy of the order be sent by the Registrar of the Forum to the Chief Engineer of OP at Mumbai, free of cost.

3. The facts of all the four complaints are similar and they are against the same OP with same prayer. The common case of complainants as per their complaints is as under:

          In response to the scheme of OP, they deposited Rs. 18,680/- as 10 percent of the amount to get the residential tenement costing Rs. 1,86,300/- being constructed for middle income group by the OP at place Rajura in District Chandrapur. They complained that they were given the assurance of possession with sale deed in span of 15 to 20 days. However in spite of repeated requests, such possession was not given and sale deed was not executed in their favour. As the time passed the condition of the houses got deteriorated and they started collapsing. Therefore the complainants sent a notice to OP on 30/09/2005 and 2/12/2005 but the OP did not reply. Hence they filed above independent complaints with a prayer to direct the OP to hand over them, the possession and sale deed of the house by taking the remaining amount and alternatively to return their deposit amount with 18 percent interest and to provide them Rs. 25,000/- as physical and mental harassment with a cost of Rs. 5,000/-

4.  On notice from the Forum the OP appeared in all the four complaints and countered the complaint stating that the  OP is a State Government undertaking  under the Maharashtra Housing & Area Development Act, 1976 engaged in construction of houses for the needy citizens and to allot them on the monthly rent and purchase scheme. The OP had in the furtherance of its objective had started a scheme of construction of houses at Rajura for which admitted to have taken 10 percent of the cost of the houses in which case the houses were to be constructed and then were to be allotted after taking the entire cost.
5. The OP submitted that however when the proposed scheme land was  re-measured, it found the area to be less thus  requiring changes in the map and hence the scheme  was dropped and cancelled. The OP claimed that all the facts were known to the complainant. The complainants were not allotted any specific house. The acceptance of the amount was only a procedural formality at the same time no assurance of sale deed or agreement was assured in the span of one month. The complainant submitting wrong facts have filed the complaint and as they demanded the amount back, the amount deposited was returned to them. The scheme was undertaken in the hire rent and purchase method. Hence unless the entire price of the house is not realized, it cannot be given to them. As the scheme is dropped, the complainants have no right to receive the houses. The complainants also know that the deposit is without interest and hence have no right to demand interest upon it. They have therefore returned their amount on 10/3/2006. Hence now they not being consumer, the complaints deserve to be dismissed.
6. The Forum heard both the parties, perused the evidence and holding that the OP as did not give the possession of the houses and also not provided proper information to complainant, attributed deficiency of service to O.P. and passed the order supra.

          Aggrieved against the order, the OP filed the above four appeals bearing Nos. A No. A/06/1570, FA/12/438, FA/12/439 and FA/12/440. As all the four appeals are against a common order where the appellants advocate and the respondent’s advocate are same, the appeals are similar and the contentions are similar with the similar subject matter. The appellant is represented by advocate Mr. H.N. Verma and the original complainants now respondent in each case are represented by advocate Mr. Kakde.

7. As all matters being similar we decided to dispose of the four appeals by common order and hence the original OP is referred as appellant and the original complainants are being referred as respondent.
8. The advocate for the appellant vehemently reiterated the contention of the appellant stating that as the land was found to be not sufficient, the scheme was changed in view of the development plan and reservation. Therefore as the scheme was not possible to be completed, the deposit was returned to the respondents. He also submitted that as per the regulation number 21(6) (a) the Estate Management Regulation, 1981, the respondents could not claim the sale deed unless all dues are paid. Also the respondents have accepted the refund of deposit without any protest and as the entire scheme is abandoned, there are no tenements now which can be given. The originally 26 tenements were to be constructed but it was possible to construct only 14 tenements and actually four tenements were only constructed. Hence now the tenements cannot be granted.
9. He also submitted that the deposit was a proposal only and no tenements were granted. Also the price quoted as referred by the learned Forum was only a tentative price and by directing the appellant to provide the tenements in specific price, the Forum has exceeded its jurisdiction. The learned Forum has not appreciated the purpose object and performance of the Board (appellant) when it undertakes a scheme and passed an erroneous and vague order which needs to be set aside.
10. The advocate for the respondent vehemently supported the impugned order and stated that those four tenements are still present in dialapiated condition which the appellant needs to give it to them. When the deposit was made the tenements were ready but as the appellant did not take care, they have now  become dialapiated. Therefore as per the order passed by the District Forum, the appellant needs to give the tenements and the order of the Forum needs to be confirmed by dismissing the appeal.
11. We considered the contention of both the parties and perused the documents placed before us. We find that the appellant is an authority engaged in construction and delivery of houses to the needy by taking rent installment from them. In the present case, it appears that the appellant undertook a scheme which had to be discarded in view of the land measurement and the development plan. The amount of deposit was taken as a registration for the tenement but cannot be called to be an assurance for the allotment of a tenement. The appellant has also returned the amount deposited in 2004 and in 2005, which the respondents have accepted also. The respondents have filed the complaints with an alternate prayer to return the amount deposited with interest at the rate of 18 percent. It shows that the respondents were aware that the scheme was discarded because of certain reason and filed the complaints with the intention to recover the money.
12. We find that if the scheme could not be completed and if just four tenements are constructed even the respondent will face many problems in living in those tenements which will lead to many problems before them. They have also accepted back the deposited money. The respondents do not look to have submitted the advertisement of the scheme to see as to on what conditions, the deposit was taken. The appellant has submitted that it was a procedural deposit and no tenements were specifically allotted. In these circumstances it would not be proper, practical and prudent to direct the appellant to provide the tenement. Also by accepting the return of deposit without any protest by the respondent, they have relinquished their right as consumer. We therefore find that though the learned Forum passed the order with the reasoning that the appellant did not provide the complete evidence in support of its contention and also failed to keep the respondent in the know of development and did not reply to the notices given to them and also returned money after filing of the complaint, it cannot be called well reasoned judgment.
13. The Forum failed to appreciate that the organization is a home building concern and if the scheme does not get sufficient support and sufficient land it shall not be possible for it to complete the scheme in which case the only alternative remains is to return the deposit amount to the respondents. Also by accepting the deposit amount, the depositor was not given the allotment of a specific tenement and hence cannot claim now the same tenement after accepting the deposit back. We thus find that the Forum did not properly appreciate the complex situation of facts and thus passed a notional, impractical, unspecific and unrealistic order which therefore deserves to be set aside.
14. However we find that the appellant committed deficiency in service by not promptly returning the deposit amount and explaining the reasons to the respondent in time.  Therefore certainly deserves to compensate the harassment and agony undergone by complainants in the expectation of getting the house. We therefore feel that providing a sumptuous compensation to the respondents by the appellant would meet the ends of the justice and would compensate the respondents properly.
15. We also find that the learned Forum has passed the order to the Chief Engineer of the OP to conduct the enquiry and recover the amount in a notional manner without ascertaining whether the scheme was cancelled as an unavoidable proposition by the OP or through careless planning.  Also without any prayer made by the respondent, this direction appears to be totally uncalled for and hence needs to be struck down.
16. With reasons discussed above, we find it justifiable to set aside the order of the Forum by partly allowing the appeal with sufficient compensation to the respondent. We after full consideration and as per the prayer made by the respondent find that the compensation of Rs. 25,000/- each and cost of 5,000/- would be most justifiable to compensate them. They have already received the deposit amount back and hence we pass the order as below.

ORDER

1. These   four appeals are partly allowed.
2. The impugned orders are set aside.
3. The appellant to provide Rs. 25,000/- each and a cost of Rs. 5,000/- each to every respondent in the span of 30 days from the receipt of the order. If failed to provide, interest of 12 percent per annum upon the said compensation and cost from the date of the order till final realization of the said by respondents.
4. Copy of the order be provided to all the parties, free of cost.