BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION:HYDERABAD.
F.A.Nos.681/2007 to 683/2007 against C.C.Nos.100/2005, 9/2006 &99/2005 District Consumer Forum, RANGA REDDY DISTRICT.
Between:
1. G.S.B.S.Chowdari,
S/o.late Sri G.Venkataratnam,
177, HIG-Phase 1, BHEL,
Ramachandrapuram,
Hyderabad-502 032
(presently residing at
261, HIG-Phase-I, BHEL, Ramachandrapuram,
Hyderabad-502032) ..Appellant/Complainant
in F.A.No.681/2007.
2. Dr.K.Kalyani Prasad,
D/o.K.B.R.Prasad,
H.No.8-7-64/2, Plot No.443,
Road No.10, R.R.Nagar,
Bowenpally, Secunderabad-500 011,
R.R.District
Presently residing at 404,
Gokul Krishna Apartments, Near State
Home, Yellareddyguda, Hyderabad-500 073.
Tel.040-23748266 Mobile 9866354028. ..Appellant/Complainant
in F.A.No.682/2007
3. Smt.B.Sunitha Naren,
17-127/160, Street No.4,
Sri Raghavendranagar, Uppal,
Hyderabad-39. Appellant/Complainant
In F.A.No.683/2007
And
1. Andhra Pradesh Housing Board, rep. by its
Vice-Chairman and Housing Commissioner
Gruhakalpa, M.J.Road, Hyderabad-500 001
2. Executive Engineer (Hg).,
Central Division.
A.P.Housing Board,
2nd floor, GaganVihar,
M.J.Road, Hyderabad-500 001.
3. The Engineer in Chief (OSD)
Singapore Township (Sanskruti Township)
Pocharam, R R District. Respondents/Opp.parties
in F.As 681/07 to 683/07
For the Appellants : Party in person.
(Common in all the appeals)
Counsel for the Respondents:Mr.D.Ranganath Kumar.
(Common in all the appeals)
F.A.Nos.1384/2007, 1386/2007 and 1387/2007 against C.C.No.9/2006, C.C.No.99/2006 & C.C.No.100/2005 District Consumer Forum, RANGA REDDY DISTRICT.
Between:
1. Andhra Pradesh Housing Board, rep. by its
Vice-Chairman and Housing Commissioner
Gruhakalpa, M.J.Road, Hyderabad-500 001
2. Executive Engineer (Hg).,
Central Division.
A.P.Housing Board,
2nd floor, GaganVihar,
M.J.Road, Hyderabad-500 001.
3. The Engineer in Chief (OSD)
Singapore Township (Sanskruti Township)
Pocharam, R R District. Appellants/Opp.parties
in FAs. 1384, 1386 & 1387/07
And
1. Dr.K.Kalyani Prasad,
D/o.K.B.R.Prasad,
H.No.8-7-64/2, Plot No.443,
Road No.10, R.R.Nagar,
Bowenpally, Secunderabad-500 011,
R.R.District .Respondent/ Complainant
in F.A.No.1384/2007
2. Smt.B.Sunitha Naren,
W/o.B.G.Narendra Babu,
H.No.17-127/160, “Srinivasa Nilayam”
Sri Raghavendranagar, Uppal,
Hyderabad-500 039, R.R.District. Respondent/ Complainant
in F.A.No.1386/2007
3. Sri G.S.B.S.Chowdari,
S/o.Venkata Ratnam,
177, HIG-Phase 1, BHEL,
Ramachandrapuram,
Hyderabad-502032. Respondent/ Complainant
in F.A.No.1387/2007
Counsel for the Appellants: Mr.D.Ranganath Kumar.
(Common in all the appeals)
Counsel for the Respondents: Party in persons
QUORUM:THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT
SMT.M.SHREESHA, MEMBER.
AND
SRI G.BHOOPATHI REDDY, MEMBER.
WEDNESDAY, THE THIRTIETH DAY OF APRIL
TWO THOUSAND EIGHT
Oral Order:(Per Smt.M.Shreesha, Hon’ble Member)
***
These appeals are disposed of by a common order since the facts are similar in all these appeals.
F.A.Nos.682/2007 & F.A.No.1384/2007:
F.A.No.682/2007 is preferred by the complainant whereas F.A.No.1384/2007 is preferred by the opposite parties against C.D.No.9/2006 on the file of District Forum, Ranga Reddy District.
The brief facts as set out in the complaint are that the complainant booked a HIG flat in opposite parties venture “Singapore Class Township in the Park” in response to the notification issued by the opposite parties. The complainant stated that the opposite parties mentioned in the application-cum-brochure that possession of the flat will be given by December, 2004 and promised to construct quality housing world class standard and also stated that if the flats were not handed over within 24 months from the date of starting construction, a sum of Rs.3,000/- per month will be paid to the allottees for the delay beyond 11-3-2005. At the time of booking of the flat admeasuring 1400 sq.ft., the complainant paid 90% of the amount as prescribed by opposite parties and remaining 10% will be paid at the time of delivery of possession of the flat and execution of registered sale deed. It is the case of the complainant that the opposite parties contravened A.P.Apartments Act and Rules, 1987 and collected Rs.40,000/- and Rs.10,100/- towards providing car parking and L.P.G.gas through pipe line respectively. Opposite parties failed to provide basic amenities but issued letters to the allottees in the first week of March, 2005 demanding payment of 10% of balance sale consideration and Rs.15,000/- towards maintenance deposit and asked the allottees to take possession and that they will execute a lease cum sale agreement. The complainant and other allottees protested the lease cum sale agreement and also collecting separate amounts for car parking and maintenance deposit. On 10-1-2005 the complainant visited the township and found that except the bare flat, nothing was ready and they were many defects like electrical transformer, water pipeline work, overhead tank and sump etc. which were not completed and therefore addressed a letter to APHB with list of discrepancies. On 20-3-2005, opposite parties gave a paper notification giving option to the allottees for withdrawal of 100% amount without any interest and alleged that the Association i.e. “Singapore City Flat Owners Association” is not valid and APHB sent notices to the office bearers of the said association. Then some of the allottees met the Chief Minister and concerned Minister of housing Board and allottees framed “Pocharam Singapore Class Township Association” and gave a representation to Chief Minister. The complainant submitted that the housing board gave an advertisement in the news paper stating that car parking allotment draws will be done in the month of October, 2004 but failed to do and submitted that the opposite parties earned huge amount over the amount collected from the allottees towards car parking etc and distributed pamphlets, therefore, the opposite parties on 15-6-2005 issued a notification in “The Hindu” withdrawing the word ‘LEASE”. Thereafter on 20-6-2005 the complainant received a letter from
APHB asking to pay dues along with Rs.13,450/- towards electricity and water connection and get the flat registered. On 27-7-2005 the complainant received a notice from Executive Engineer, APHB along with a cheque for Rs.9,32,100/- intimating the cancellation of allotment by making false allegations. It is the case of the complainant that the opposite parties developed grudge against office bearers of Association and unilaterally cancelled the allotment and the complainant could not enjoy the flat even after payment of 90% of sale consideration by 11-3-2005 and also lost interest on the housing loan for the said flat and submitted the cheque issued by APHB to the financial ban for closure of loan account. The A.P. Housing Board has misled the public and committed deficiency in the following services:
a) Did not make and register “Agreement of sale” at the time of accepting the advance payment as per rules and even till date.
b) Did not bother to give full and true disclosure of the specifications and other information as needed by the complainant. APHB had not replied to any of the letters especially regarding car parking lot and rectification of quality defects (annexure XII to annexure XXII-16 sheets)
c) Did not conform to specified quality of construction, as per the brochure
d) Offered to deliver a house that does not comply with the specifications mentioned in the brochure and as per the model flat
e) Did not form co-operative housing society and handed it over to its allottees
f) Did not provide for free car parking space within compound/complex
g) Did not provide water storage tank by the announced date of possession
h) Did not deliver the house within the agreed time limit
i) APHB has not installed the infrastructure before the allottees were asked to take possession of the flats
j) APHB has not obtained the ‘Fit for occupation certificate’ from the municipal authorities before asking for final payment and taking possession.
The complainant submitted that opposite parties issued a notification in the month of September, 2005 inviting fresh applications for sale of flats in the said project at the cost of Rs.1,000/- per sq. ft. and cost of HIG flat was increased to 14 lakhs from Rs.9,80,000/- and there is difference of Rs.5,00,000/-. Hence the complaint for a direction to the opposite parties
i) to revoke cancellation of allotment;
ii) to collect the refunded amounts,
iii) to rectify the defects with standard fittings, materials and workmanship and handover the flat as per promised specifications
iv) to offer free car parking and pay Rs.1,00,000/- towards physical strain and mental agony undergone
or
i) to pay interest @ 18% p.a. for the amount of Rs.9,32,000/- locked up
with opposite parties from August, 2003 to July, 2, 2005
ii) to pay cost difference of Rs.5,00,000/- due to escalation
iii) to pay Rs.3,00,000/- for denying an opportunity of owning the flat in the said township
iv) to pay Rs.1,00,000/- towards physical strain and mental agony and Rs.5,000/- towards costs.
Opposite parties filed counter and admitted construction of housing venture in the name of ‘Singapore Class township’ and the complainant booking HIG flat and delivery of possession of the flat by end of December, 2004 and issuing letter dt.14-6-2003 for payment of last instalment and granted deliver of possession within 24 months from the date of commencement of the scheme and if not delivered promised to pay Rs.3,000/- p.m. to the allottee who paid full and final cost. They submitted that the complainant has booked the flat in the scheme after accepting the plan provided along with application and paid 90% of the cost of the flat and have to abide by the rules and regulations of APHB and AP Apartments Rules, 1987 is irrelevant and the complainant quoted irrelevant facts. They admitted that it collected Rs.40,000/- for covered car parking and Rs.10,100/- for pipe line from the allottees and the allottees have to pay balance sale consideration i.e. 10% at the time of delivery of possession apart from other charges for electricity and water. They submitted that the construction is of good quality as per specifications notified and also denied the allegations made with regard to non providing of basic amenities but admitted that they demanded to pay 10% sale amount with maintenance etc. charges and take possession of the flat under lease-cum-sale deed. They also stated that they sent a letter dated 7-8-2004 to all the allottees explaining the features of piped gas and car parking and that the flats were made ready for occupation within 24 months from the date of commencement of the scheme i.e. by 11-3-2005. They submitted that the infrastructure like water supply, electricity, roads, sewerage treatment plants were already provided by them and also they selected the developers to build schools, health centre, club house, commercial complex, IT park . They further submitted that in view of persistent queries by small section of allottees, they released an advertisement with an option to the allottees for withdrawal from the scheme. The complainant challenged the cost of construction and indulged in adverse propaganda and in accordance with the board policy, they had cancelled the allotment. They submitted that they intimated the reasons to the complainant vide letter dated 20-8-2005 while cancelling the allotment and refunded the amount as the complainant made baseless allegations and submitted that there is no deficiency of service on their part and prayed for dismissal of the complaint.
Based on the evidence adduced i.e. Exs.A1 to A21 and the pleadings put forward, the District Forum allowed the complaint in part directing opposite eparties to pay interest at 9% p.a. in proportionate to the payments made on different dates from the date of payment i.e. 31-7-2003 till 28-6-2005 with costs of Rs.1,000/- and rejected the rest of the reliefs claimed by the complainant.
Aggrieved by the said order, the complainant preferred F.A.No.682/2007 and opposite parties preferred F.A.No.1384/2007.
The complainant/appellant, party in person in F.A.No.682/2007 submitted that as per the G.O.Ms.No.423 MA dated 31-7-1998 wherein it was stated that the completed building shall be allowed to be occupied/used only after issue of ‘Fit for Occupation Certificate” by the local authority on the basis of submission of building completion certificate by architect and owner. He further contended that as per letter No.20969A4/EE(C)/2001 dated 14-6-2003 which he has filed before this Commission, the sixth instalment i.e. last instalment of 10% i.e. 98,000/- is payable at the time of taking over possession probably by the end of December, 2004. The complainant had addressed a letter to the opposite parties seeking clarification whether the amount should be paid for car parking or if it is included in the flat price. He has also pointed out the defects in the construction vide his letter dated 7-3-2005. There was also a representation made to Chief Minister on 3-6-2005. On 21-6-2005 a notice was issued by the opposite parties for payment thereafter on 27-6-2005, the complainant had written to the opposite parties requesting for rectification of the defects. Opposite parties vide their notice No.2095/A4/AB10-406/EE(CD)/05 DATED -06-2005 stated that they were no longer allottees and cancelled their allotment and cheque No.624118 dated 28-6-2005 for Rs.9,32,100/- was enclosed towards full refund of the amount paid by the complainant. The complainant thereafter wrote a letter dated 1-8-2005 to the opposite parties stating that cancellation of allotment is not acceptable to him and that an opportunity should be given to him to meet the V.C. and personally explain the defects. Inspite of several representations, opposite parties refused to re-allot the flat to the complainant. The party in person contended that because of immediate requirements like water and electricity were not made available up to July, 2005 and major deficiencies existed during March, 2005 which are still existing, that they had formed an association and repeatedly complained.
The complainant also filed written arguments for setting aside the illegal cancellation of the flat and place the complainant in a position where he was as in the end of May, 2005 and to direct the opposite parties to accept Rs.9,80,000/- and register the flat and to give car parking slot free as promised and to pay Rs.3,000/- per month from 1-1-2005 till date and other compensation and costs.
We have perused the material on record. It is the case of the complainant that it was only because of defective construction and not providing basic amenities like water, electricity, free car parking slot, not providing water storage tank, not delivering the flat within the agreed time limit, not obtaining the ‘fit for occupation certificate’ from municipal authorities that they had formed the association and repeatedly complained to the opposite party authorities as well as the Chief Minister, as a result of which the opposite parties unilaterally, without issuing any notice, cancelled their allotment and sent a cheque for refund of the amount paid along with cancellation letter. It is the case of the opposite parties that on 12-5-2003 an allotment letter was issued by allotting HIG flat No.Ab10-406 to the complainant and the complainant in the application form sent a declaration stating that “ I have agreed to abide by the rules and regulations of A.P.Housing Board’.
The learned counsel for the appellant in F.A.No.1384/2007 who is also respondent in F.A.No.682/2007 submitted that it is only because of the damaging statements in newspapers and distribution of pamphlets spreading false information about the quality of construction of Singapore Class Township, that the Housing Board had cancelled the allotment to the members, who were not satisfied with the construction and returned their money. He also submitted that A.P.H.B. issued an advertisement clarifying all the issues, it was also stated in the said advertisement that the Board of Directors have agreed to offer return of the money without the monetary 10% forfeiture and they can avail the opportunity till 5-4-2005. This was done to put an end to the baseless criticism. The learned counsel for the appellants/opposite parties admitted that on 28-6-2005 as the complainant failed to apply for refund of the amount paid, as per the advertisement, and continued with her programme of adverse propaganda, A.P.H.B. cancelled the allotment and refunded the entire amount paid by her without forfeiture of 10% amount and stated as follows:
In the interest of the greatest good of the large number on one hand,
and to protect the interest of the A.P.Housing Board as well as Singapore
Class Township project, your continuance will only affected the viability of the
project, as you are spreading disaffection, not based on facts, but based on
motives and hence cancellation of your allotment is warranted.
Despite the provision in our regulations for forfeiture of money, we are
returning the 100% amount paid by you and canceling your allotment. Please note that you are no longer an allottee in the Singapore Class Township and have not got any relationship with either A.P.Housing Board or
with the project. Though our information says that your Association have got
no members beyond the office bearers, you are attempting to collect money
from the Singapore Class Township allottees. You are advised to desist from
doing so.
A cheque No.624118 Dated 28-6-2005 for Rs.9,32,100/- is enclosed herewith towards full refund of the amount paid by you”.
We observe from the record that on 01-8-2005, the complainant had written a letter protesting against the cancellation but has encashed the cheque and the party in person submitted that the cheque was in the name of the bank which has issued the loan and it was encashed on protest . It is also on record that on 28-8-2005 a notice was issued by the complainant to withdraw the cancellation and a reply was issued by A.P.H.B. on 26-10-2005.
We rely on the decision of the National Commission reported in III (2007) CPJ 185(NC) in VEENA KHANNA v. ANSAL PROPERTIES & INDUSTRIES LTD. & ORS. in which it was held that:
“Opposite party took undue advantage and refunded the amount
deposited by the complainant and there was no adequate compensation
awarded. The National Commission observed that the State Commission
ought to have directed the opposite party to deliver possession of the
same flat or flat of similar size with compensation.
It is to be remembered that Consumer Fora is not governed by
adversary system procedure, but it is to hold inquisitorial proceedings (inquiry). Hence, in inquisitorial proceedings, the State Commission ought
not to have looked only to the prayer made by the complainant, but
ought to have looked into the substance of the matter and at the
defence of the opposite parties, wherein there is a specific admission
that as soon as the flat would be ready after construction, the possession
would be delivered. In such a situation, direction for delivery of
possession of flat ought to have been passed and for delay in delivering
the possession, adequate compensation should have been awarded.
Further, it is true that the State Commission has directed refund
of the amount deposited with interest, which the complainant was paying
to the bank, but that does not mean that the complainant is adequately
compensated for delay in construction of the flat by the builder and not
delivering the possession of the flat. Because of the delay in construction
and delay in deciding the matter, it is practically impossible for a retired
Government employee to purchase a flat at the present market price.
In such circumstances, it was the duty of the State Commission to
direct the opposite parties to deliver the possession of the same flat or flat
of similar size to the complainant with compensation for delay in delivering
the possession. Or, in any circumstances, adequate compensation ought
to have been given so that the complainant could purchase a new flat of
the same size at the prevailing market rate. Payment of interest is not any
compensation because the complainant has taken the loan he was required
to pay the same to Bank. That means the amount paid by the complainant is
directed to be refunded by the impugned order.
Hence, the complainant is required to be compensated for delay in
construction of the flat and for not allotting the same to her. Because of the
delay in construction and delay in deciding the matter, it is practically
impossible for a retired Government employee to purchase a flat at the
present price. Therefore, there are two alternatives: (a) one is to give
adequate compensation for delay and to direct the opposite parties to
hand over possession of an alternative flat in the vicinity of the area where
the flat was allotted to the complainant;(b) or, to pay adequate compensation
to enable the complainant to purchase a new flat of the same area in the same or similar locality.
In this view of the matter, this Appeal is allowed. The opposite parties
are directed to pay a sum of Rs.7,50,000/- as compensation to the complainant. This is on the presumption that the value of the flat was escalated”.
This Commission by an order dated 10-10-2007 allowed F.A.I.A.No.2540/2007 in FA.I.A.No.1261/2007 in F.A.No.682/2007 directing the opposite parties to ascertain the availability of a similar flat which was initially allotted to the complainant and to report the flat number. Thereafter the counsel appearing for the opposite parties submitted that three duplex apartments and two pent houses consisting of 1800 sq. ft. and 2800 sq. ft. each respectively are available, while the appellants/complainants in these batch cases represented that they were ready to take these duplex apartments and pent houses, if they are made available at the rate of Rs.700/- per sq. ft. Thereafter on 8-2-2008, the party in person, complainant filed a memo stating that HIG flat No.49 was sold during the month of January, 2008 itself, contrary to the representation made by the learned counsel for Housing Board before this Commission. The learned counsel for the opposite parties, Housing Board filed an affidavit stating that they have kept one HIG flat without allotting it to anybody as per the orders of this Commission dated 10-10-2007 and that there are no HIG flats available for allotment to other two complainants, who have also filed complaints. He further reported in his counter affidavit that there 3 duplex flats in 10 storeyed blocks available as on that date, which are also three bed room flats having a plinth area of 1806 sq. ft. (+ or – 50 sft. Depending upon the location of the flat) and that the cost of the flat would be Rs.1800 per sq. ft. and is ready and willing to allot the same to the complainants, if they apply for the same. He further clarified that one HIG flat was allotted to one Mr.Lakshman Rao and this is dated 5-12-2007 and no HIG flat was allotted to anybody after 27-12-2007 and that he has complied with the orders of this Commission.
Taking into consideration that no opportunity was given to the complainant herein prior to cancellation of her allotment and the opposite parties unilaterally cancelled her allotment, inspite of payment of 90% of the cost of the flat and had simply sent a cancellation letter enclosing the cheque for refund, which is against the principles of natural justice, we are of the view that one H.I.G. flat which was not alienated as per the orders of this Commission be allotted to the complainant by the opposite parties within four weeks from the date of receipt of this order and is directed to take back the refunded amount and pay costs of Rs.3,000/-.
In the result we allow F.A.No.682/2007 and modify the order of the District Forum directing the opposite parties i.e. A.P.H.B. to register similar HIG flat with car parking which they have kept aside for the complainant vide their counter affidavit dated 5-3-2008 and take back the refunded amount within four weeks and pay costs of Rs.3,000/-. F.A.No.1384/2007 is dismissed without costs for the reasons mentioned above.
F.A.No.681/2007 & 1387/2007:
The facts in both these appeals are similar to F.A.No.682/2007 and 1384/2007. The party in person in appeal, F.A.No.681/2007 is also present and submitted that he also paid the amount towards the cost of the H.I.G. flat allotted to him and his allotment was unilaterally cancelled without giving him an opportunity to present his case. He filed F.A.I.A.No.1260/2007 in which there was an interim direction dated 28-5-2007 not to alienate the disputed flat to any other party until disposal of the appeal.
For all the aforementioned reasons in F.A.Nos.682/2007 and 1384/2007, we allow F.A.No.681/2007 and modify the order of the District Forum by directing the opposite parties to allot a similar flat with car parking and take back the refunded amount and pay costs of Rs.3,000/- to the complainant within a period of four weeks from the date of this order. F.A.No.1387/2007 is dismissed.
F.A.No.683/2007 & F.A.No.1386/2007:
The facts in both these appeals are similar to F.A.No.682/2007 and 1384/2007. The party in person submitted that she paid the entire 100% cost of the flat and yet her allotment was cancelled unilaterally against the principles of natural justice within giving her an opportunity to present her case. The party in person prayed for revoking the cancellation and for other reliefs.
For the aforementioned reasons in F.A.No.682/2007 and 1384/2007, we allow F.A.No.683/2007 and modify the order of the District Forum by directing the opposite parties to allot a similar flat with car parking, and take back the refunded amount and pay costs of Rs.3,000/- to the complainant within a period of four weeks from the date of this order. F.A.No.1386/2007 is dismissed without costs
PRESIDENT. LADY MEMBER. MALE MEMBER
JM Dated 30-4-2008
