BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C. No. 175/2006 Filed on 23.06.2006

Dated : 16.05.2011

Complainants :

1. Dr. MSN Balasubramaniyan, 4/169, Ambala Nagar Extn, Kowdiar P.O, Thiruvananthapuram.

    

2. B. Jayalakshmi, W/o Dr. MSN Balasubramaniyan, 4/169, Ambala Nagar Extn, Kowdiar P.O, Thiruvananthapuram.

(Appeared in person)

Opposite parties :

1. Government of Kerala represented by Additional Chief Secretary & Secretary, Ministry of Revenue and Housing, South Block, Secretariat, Thiruvananthapuram.

    

2. The Secretary, Kerala State Housing Board, Bakery Junction, Thiruvananthapuram.

(By adv. Saji. S.L)

This O.P having been heard on 16.04.2011, the Forum on 16.05.2011 delivered the following:

ORDER

SRI. G. SIVAPRASAD: PRESIDENT

The facts leading to the filing of the complaint are that 2^nd opposite party, the Kerala State Housing Board had invited applications for the allotment of plot and complainants had invested an amount of Rs. 6,500/- on 13.05.1980 for allotment of 560 sq. m plot, that opposite parties failed to allot the plot for 5 long years, that plot was allotted only on 11.05.1985 and the allotted plot is having an extent of 150 sq. m, that opposite parties owes an interest on the invested amount over a period of 5 years, on account of which Rs. 950/- is due from the opposite parties. It is submitted by complainants that though complainant had demanded the said amount on 09.05.1985 it was not refunded by opposite parties, that opposite party has the motto to allot the plot to the allottees, that opposite party has charged separate amount as service charges, that the share of land acquisition from them was Rs. 17,745.50 and charges for developing amenities for the colony was Rs. 16,914.50, that after allotment of land on 11.05.1985 opposite party made another demand of Rs. 3,880/- on 02.01.1986, that all on a sudden opposite party issued a notice of demand of Rs. 52,258/- on 25.06.2004, that on 9^th October 2005 complainant demanded details of opposite party's demands, that complainants do not owe any due or its interest, that opposite parties' demand includes heavy interest over a period when no demand is made by them, that their demand of any interest since 07.06.1986 is illegal, that plots allotted to them do not have any case or litigation, that the account furnished by the opposite party is not proper and that the action of the opposite parties is illegal. Hence this complaint to direct opposite parties to execute sale deed in favour of complainants and to pay compensation and costs.

Opposite parties entered appearance and filed version contending interalia that the wife of the complainant applied for a plot with building (Plot 250 m² and building with 80 m² ), that the wife of the complainant was allotted a sale plot No. 22 in Ambala Nagar Extension stage I Housing Accommodation Scheme at a tentative cost of Rs. 34,660/- on 11.03.1985, that she chose the allotment with her free will and volition, that advance registration did not envisage any interest on the registration fee, that she had agreed to abide by the terms and conditions of registration of allotment, that after deducting advance amount complainant was requested to remit Rs. 28,160/- on 10.04.1985, that she remitted only Rs. 23,000/-, that as per the agreement penal interest chargeable to the delayed payment for the defaulted portion, that complainant had remitted Rs. 6,500/- belatedly, that as per bilateral agreement, the Board has the right to refix the final land value and the allottee is liable to pay the difference in costs with interest stipulated thereon, that the price arrived on 01.10.1986 was purely tentative, that charging of escalated price of a plot by the Board does not constitute deficiency in service and the pricing is not a factor which falls under the Consumer Protection Act, that the actual area allotted to the allottee is having an extent 166 m² which was tentative as per the lay out at the time of allotment. Hence the amount of Rs. 3880.8 being the price of excess land was realized from her. The allottees filed suits before the Munsiff Court, Thiruvananthapuram challenging the demand and the said suits were compromised by the allottees after settling the dues and got the sale deed executed in their favour. Meantime the 2^nd opposite party fixed the basic land value as Rs. 213.15/m² as on 29.05.1984 based on the expenses incurred for the development of land and additional value was also fixed pro rata on the basis of the compensation paid as per the award of the Hon'ble Sub court, Thiruvananthapuram in LAR No. 158/1985. Accordingly, the wife of the complainant was requested to remit Rs. 52,258/- on or before 31.07.2004, that she did not remit the amount till date. There was no deficiency in service on the part of the opposite parties and opposite party has never indulged in any unfair trade practice. Hence opposite party prayed for dismissal of the complaint.

The points that arise for consideration are:-

1. Whether the complainants are entitled to get the sale deed executed?

2. Whether the complainants are liable to pay the amount as on 31.07.2004 as demanded by the opposite parties?

3. Whether the complainants are entitled to get interest on advance registration fee?

4. Whether there is deficiency in service and unfair trade practice on the part of the opposite parties?

5. Whether the complainants are entitled to compensation and costs?

In support of the complaint, 1^st complainant has filed affidavit in lieu of chief examination as PW1 and has marked Exts. P1 to P30. In rebuttal 2^nd opposite party has filed affidavit and has marked Exts. D1 to D5. One witness has been examined as DW2 and has marked Exts. D6 to D8.

Points (i) to (v):- There is no point in dispute that the 2^nd opposite party invited applications for the allotment of plot and complainant had invested Rs. 6,500/- as advance on 13.05.1980. Admittedly, the plot was allotted in the year 1985. There is no dispute on the point that an agreement was executed between the complainant and opposite parties with respect to the allotment of plot. There is no point in dispute that the tentative cost was fixed as Rs. 34,660/-. It has been the case of the complainant that opposite party failed to allot the plot for 5 years, thereby it is contended that opposite party owes an interest on the invested amount for a period of 5 years. It has been rebutted by opposite parties that though tentative cost was fixed, complainant has not remitted the balance amount at one stretch. According to opposite parties, complainant agreed that the Board has at liberty to refix the final land value and complainants are liable to pay the difference in cost with interest stipulated thereon. It is not in dispute that the value arrived at the time of application is purely tentative. The final value was fixed on the basis of expenses incurred for development of land and accordingly opposite party fixed the final value and issued demand notice to complainant for Rs. 52,258/-. Complainant's witness consisted of oral testimony of the 1^st complainant and Exts. P1 to P30. Ext. P1 is the copy of the receipt dated 13.05.1980 for Rs. 6,500/- issued by opposite party in favour of 2^nd complainant towards registration fee. On perusal of Ext. P1 it is seen that the said amount was remitted by way of 3 cheques dated 29.04.1980. Ext. P2 is the document to show that application of the complainant is entered as No. 1040. Ext. P3 is the copy of the Annexure I issued by opposite party regarding the allotment of vacant plots at Ambala Nagar. Ext. P4 is the copy of the notice issued under certificate of posting by the opposite party to the 2^nd complainant on 11.03.1985 informing her that plot No. 22 in Ambala Nagar (Extension) Housing Scheme area has been provisionally allotted to her subject to the conditions of allotment agreed by her. As per Ext. P4 it is informed that the tentative value of the plot is Rs. 34,660/- out of which she had remitted Rs. 6,500/-. She was requested to remit the balance deposit of Rs. 28,160/- within 30 days from 11.03.1985. Further, complainant was requested to produce documents and make payment on or before 10.04.1985 failing which it was informed her that the allotment is liable to be cancelled and her name will be removed from the registration list. Ext P5 is the copy of the notice dated 22.09.1986 issued to 1^st complainant by the opposite party stating that opposite party has decided to convene a meeting of the allottees of the Ambala Nagar Extension Housing Scheme and complainant was requested to attend opposite party's office on 01.10.1986. Ext.P6 is the notice dated 02.01.1986 addressed to 2nd complainant by opposite party informing her that the Executive Engineer Division No. III has reported that actual area of plot No. 2 comes to 166 m² and as such land value comes to Rs. 38,360/- and complainant had remitted Rs. 34,711.20 and hence requested to remit the balance land value of Rs. 3,880.80. Evidently by Ext. P6 complainant had remitted the initial tentative value of the plot of Rs. 34,660/-. Ext. P8 is the copy of the demand notice dated 25.06.2004 addressed to 1^st complainant by 2^nd opposite party informing him that accounts in respect of plot No. S 22 have been finalized and the amount due on finalization of accounts as on 31.07.2004 comes to Rs. 52,258/-. Ext. P9 is the copy of notice issued by 1^st complainant to opposite party. Ext. P10 is the letter from Government to 2^nd opposite party to give calculation statement to the petitioner showing the details of the amount demanded. Ext. P11 is the copy of the notice addressed to 1^st opposite party, the Secretary, Ministry of Revenue to direct opposite parties to render him the details of Rs. 52,258/- demanded from him. Ext. P12 is the letter dated 22.02.2006 by 2^nd opposite party to 1^st complainant stating that the details of calculation statement is enclosed for perusal and necessary action. Ext. P13 is the letter dated 29.05.2004 by the opposite party to the Secretary, Nehru Nagar Allottees Association (Ambala Nagar Extension) informing them that 2^nd opposite party has decided additional land value as Rs. 219.35/sq m and requested them to withdraw the case and got executed the sale deed on payment of the additional land value decided on 25.05.2004. Ext. P14 is the copy of the letter sent by complainant to the Minister for Revenue. Ext. P17 is the letter dated 28.06.1985 addressed by the 1^st complainant to the Regional Engineer, KSHB requesting him to hand over the necessary documents of the plot No. S 22 Ambala Nagar Extension. Ext. P18 is the copy of the judgement dated 14.08.1990 of the II Additional Sub Judge, Thiruvananthapuram. Ext. P19 is the copy of the decree in LAR No. 158/85 of II Additional Sub Court, Thiruvananthapuram. Ext. P20 is the letter from the opposite party to the 2^nd complainant dated 26.04.1985 permitting her to remit the balance amount of the tentative land value viz Rs. 5,160/- upto 10.05.1985. It is seen informed her vide Ext. P20 that the said permission is subject to the condition that the penal interest will be levied at 18% per annum for the belated payments. Ext. P21 is the copy of the reply sent by 1^st complainant addressed to the Regional Engineer in connection with letter dated 09.05.1985 along with Tahsildar's certificate and D.D for Rs. 3,261.20. Ext. P22 is the copy of the letter from the 2^nd complainant to KSHB praying for one month time for payment. Ext. P23 is the copy of the letter from the 1^st complainant to Regional Engineer, KSHB dated 28.06.1985 requesting the latter to hand over the necessary documents of the plot No. S 22 so as to enable him to take possession of the plot. Ext. P24 is the copy of the letter addressed to opposite party by the Residents of Housing Colony, Ambala Nagar Extension Scheme requesting the latter to arrange for electricity without any further delay. Ext. P25 is the photocopy of the acknowledgement card. Ext. P26 is the copy of the complaint in connection with sale deed sent to Housing Board by the Revenue Ministry. Ext. P27 is the copy of the letter sent to Secretary, KSHB requesting him to sent sale deed urgently to the complainant. Ext. P28 is the copy of the acknowledgement card. Ext. P29 is the copy of the letter from the opposite party to complainants stating that a copy of the agreement is forwarded. Ext. P30 is the copy of the agreement for sale of the property. Opposite party's witness consists of oral testimony of DW1 and DW2 and Ext. D1 to D8. Ext. D1 is the application for registration for allotment of house plots sent by the complainant. As per Ext. D1 complainant applied for plot with house, that area of plot required is 250 sq. m and plinth area of building required is 80 sq. m. As per Ext. D1 complainants deposited required registration fee of Rs. 6,500/-. Further complainants agreed to abide by the terms and conditions for registration for allotment of house plots. Ext. D2 is the original agreement for sale of the property. As per Ext. D2 the deed of agreement for sale was executed on 11.10.1985 between the complainants and opposite parties. The said agreement is in connection with allotment of plot No. S 22. As per Ext. D2 land value development charges for service and other amenities fixed is purely tentative and provisional and are bound to be revised at a later stage in accordance with the decision of the courts and also on the final settlement of accounts for the development works and the work for providing service and other amenities undertaken with respect to the scheme. It is further stated in the said agreement that the land value is to be revised at a later stage taking into account the enhanced compensation awarded by Courts and Tribunals, the costs incurred by the Board for prosecuting such proceedings in courts and tribunals and also the increased cost of service and other amenities undertake with respect of the scheme. It appears in Ext. D2 that the tentative land value for the property is fixed at Rs. 17,745.50 and the tentative charges for service and other amenities is fixed at Rs. 16,914.50. As per agreement complainant had already paid Rs. 34,660/-. Further it is agreed vide Ext. D2 that the decision of the Board in fixing the revised price for each item of the property shall be conclusive and final. It is further agreed between the parties in the agreement that after the finalization of the land value and charges for service and other amenities by the Board, complainant shall pay to the Board together with interest at 12% per annum the difference between the tentative price and price finally fixed by the Board. It is further stated in the agreement that complainant shall be entitled to get a registered sale deed after payment of all the amounts due under the agreement to the Board in full and after satisfying all the terms and conditions contained in the indenture and the provisions of the Kerala State Housing Board Act. As per the agreement the property in dispute is in Survey No. 2944/1 to the extent of 1 Are 50 sq. m. Ext. D3 & Ext. P4 are one and the same. Ext. D4 is the letter dated 02.08.2004 sent by the Regional Engineer, Housing Board to the complainant informing the latter that an adalath will be conducted by the opposite party on 06.08.2004 in connection with the final land value and title deed. Ext. D5 is the letter dated 22.02.2006 by opposite party to complainant informing him that the details of calculation statement was enclosed for his reference. Ext. D6 is the sketch of plot No. S 22 prepared by Revenue Surveyor, Trivandrum Housing Unit. Ext. D7 is the copy of the extract of minutes of the Board meeting held on 25.05.2004. Ext. D8 is the detailed statement of account. According to the complainant final demand notice was sent in 2004 and there was a great delay in fixing the additional land value due to which opposite party insisted for additional payment. According to him the initial registration fee of Rs. 6,500/- was remitted on 13.05.1980, but the agreement was executed in the year 1985 and the said initial deposit was deducted from the tentative cost fixed by the opposite party and the balance tentative cost was paid by the complainant. Though the initial registration fee of Rs. 6,500/- was reduced from the tentative cost, opposite party did not provide interest on the initial registration fee and the said amount was in opposite party's hand for around 5 years as interest free. It is pertinent to point out that complainant never furnished any material to show that opposite party had offered interest on initial registration fee remitted in 1980. Further complainant ought to have raised such issue prior to the execution of agreement. After the execution of agreement, parties are bound to follow the terms and conditions of the agreement. After execution of the agreement complainant cannot bounce back from the agreement. The very case of the opposite party is that Board is at liberty to refix the final land value and allottees are liable to pay the difference in cost with interest stipulated thereon. Further it is by virtue of Ext. D2 admitted that the value arrived at the time of application is purely tentative and Board is entitled to recover the difference in cost with interest from the allottees as per the conditions of the agreement. Parties are bound by the terms of the contract. It is further argued by the opposite parties that Board had done all steps for providing electricity and water connection and all other amenities since Board has right to fix additional land value. It has been contended by the opposite party that the area of plot No. S 22 was tentative at the time of agreement and actual area allotted to complainant is 166 sq. meter and amount of R. 3880.80 being the price of excess land was realized from the complainant. The extent of land as per Ext. D2 agreement is 1.5 Ares, while as per Ext. D6 Survey plan plot No. 22 has an extent of 167.93 m². Ext. P12 calculation statement is based on the area extent of 167.93 m² which is not tallying with the extent mentioned in the agreement. The very case of the complainants is that they were allotted only 150 sq.m which calls for a registration of only Rs. 1,800/-. To substantiate that aspect, no cogent and convincing material furnished by the complainant. As per Ext. P1 receipt, no extent of land mentioned therein, what has been mentioned therein is only registration fee. As such, the contention of the complainant that opposite party has collected an excess amount of Rs. 4,700/- on 13.05.1980 has no base at all. Further nowhere in the agreement is it seen stated that opposite party has offered any interest on registration fee. Thereby the prayer for interest on registration fee cannot be allowable as parties in the agreement are bound to follow the terms of the agreement. It has been contended by the complainants that they had remitted an amount of Rs. 3,880/- as per Ext. P6 letter dated 02.01.1986. Opposite party has admitted the same. The very case of the complainants is that though they had paid all demands of the KSHB, in 1985 itself, they are not yet provided with the sale deed. Further it is argued by the complainants that opposite party had issued notice of demand of Rs. 52,258/- on 25.06.2004 by Ext. P8. As per Ext. P8, it is stated that the amount due on finalization of their accounts as on 31.07.2004 comes to Rs. 52,258/-. It has been argued by the complainant that opposite parties never attended 20 years of their plea for sale deed, that they issued additional demand in the year 2004, that is, after 19 years from the date of agreement. Initially, it is argued by the complainants that opposite party never sent the details of calculation statement even after repeated requests. It is evident from Ext. P9 that complainant had requested the opposite party to sent urgently the details of calculation statement. As per Ext. P11 complainant had requested the Secretary, Ministry of Revenue to direct opposite party to issue sale deed urgently. As per Ext. D10 the office of the Additional Chief Secretary to Government directed the opposite party to give a calculation statement to the complainants and accordingly by virtue of Ext. P12, 2^nd opposite party had issued the calculation statement whereby total due as on 31.07.2004 was Rs. 52,258/-. On perusal of calculation statement it is seen that there was balance due as on 07.06.1986 of Rs. 1,045/-. The claim of the opposite party is that they are entitled to interest on the said amount. It is further seen in the statement that opposite party assessed additional land value on 31.07.2004 as 281.5/ m² on the basis of which additional land value of the entire area of 167.93 m² comes to Rs. 47,274/- (281.51 x 167.93). Opposite party has calculated interest of Rs. 3,322/- for balance amount as on 07.06.1986 of Rs. 1,045/-, thereby total amount comes to Rs. 50596/- (that is Rs. 1,045/- + Rs. 3,322/- + Rs. 47,274/-) Further opposite party has assessed tax as Rs. 462/- and miscellaneous expense as Rs. 1,200/-. Altogether opposite party has demanded Rs. 52,258/-. At this juncture, it is pertinent to point out that the Land Acquisition Reference in dispute vide LAR 158/85 was resolved by the court concerned on 14^th August 1990 by Exts. P18 & P19 judgement and decision in LAR 158/85 of Second Additional Sub Court, Thiruvananthapuram, while the additional value and finalization of account in respect of plot No. S 22 was assessed by the opposite party in the year 2004, that is after a lapse of 13 years from the date of the judgement of the LAR court concerned and final demand was made by opposite party on 25.06.2004 by Ext. P8. The reason for such a long delay has not specified anywhere in the version/affidavit filed by the opposite party. It is to be noted that the initial price collected was tentative price, thereafter cost escalated due to enhancement of land value as per decisions in LAR court judgement. As per Ext. D2 opposite party is entitled to refix the final value, accordingly additional demand was made by opposite party, but not within the reasonable period. Demand was made belatedly, which prolonged the execution of sale deed in favour of complainants on payment of balance payment. Delay in issuance of additional demand and subsequent delay in execution of sale deed by opposite party would definitely amount to deficiency in service. Since plot was allotted as per agreement on payment of tentative land value for the property and tentative charges for service and amenities and opposite party is entitled to refix final value taking into account interalia the enhanced compensation awarded by the LAR Court and other charges as specified in the agreement for sale, we do not find anything pertaining to unfair trade practice on the part of the opposite party except the aforesaid delay in demand. Further pricing never falls under the Consumer Protection Act. What we need to consider is whether opposite party has acted against the terms and conditions stipulated in the agreement for sale. Complainant totally failed to establish that opposite party's action is unilateral, unjust and against fact, except the delay in issuance of demand. Opposite party cannot escape from liability to compensate the complainant due to the prolonged delay in issuance of additional demand and execution of sale deed. Taking into account of the totality of circumstances we are of the considered opinion that since additional demand is made in accordance with the terms and conditions of the agreement, complainant is liable to pay the said amount of Rs. 52,258/- as on 31.07.2004. Due to prolonged delay in additional demand, opposite party has to pay Rs. 10,000/- towards compensation. Further opposite party is estopped from charging any interest on the total due as on 31.07.2004.

In the result, complaint is partly allowed. Complainant is liable to pay Rs. 52,258/- towards the amount due as on 31.07.2004. Opposite party is prevented from charging interest on the said amount from 01.08.2004 onwards. Opposite party shall pay a sum of Rs. 10,000/- towards compensation on account of delay along with Rs. 2,000/- as cost to complainant. Opposite party shall execute sale deed with respect to plot No. S 22 in favour of complainants on receipt of balance amount as on 31.07.2004 after adjusting the aforesaid amounts of compensation and cost, from the complainant within two months from the date of receipt of this order.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 16^th day of May 2011.

Sd/-

G. SIVAPRASAD : PRESIDENT

Sd/-

BEENAKUMARI. A : MEMBER

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S.K. SREELA : MEMBER

jb

C.C. No. 175/2006

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Dr. M.S.N. Balasubramaniyan

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of receipt No. 16690 dated 13.05.1980

P2 - Document to show that application of the complainant is

entered as No. 1040.

P3 - Copy of the Annexure I issued by opposite party.

P4 - Copy of notice dated 11.03.1985 issued to 2^nd complainant.

P5 - Copy of notice dated 22.09.1986 issued to 1^st complainant by

the opposite party.

P6 - Copy of letter dated 16.11.1986.

P7 - Copy of the notice dated 02.01.1986 addressed to 2^nd

complainant by opposite party.

P8 - Copy of letter dated 25.06.2004

P9 - Copy of notice issued by 1^st complainant to opposite party.

P10 - Copy of letter from Government to 2^nd opposite party dated

06.01.2006.

P11 - Copy of letter dated 27.12.2005.

P12 - Letter dated 22.02.2006 by 2^nd opposite party to 1^st

complainant

P13 - Letter dated 29.05.2004 issued by the opposite party to the

Secretary, Nehru Nagar Allottees Association

P14 - Copy of the letter sent by complainant to the Minister for

Revenue.

P15 - Copy of letter dated 23.03.2005 issued by the complainant.

P16 - Copy of the letter dated 19.08.2004.

P17 - Copy of the letter dated 28.06.1985 issued by complainant

P18 - Copy of the judgement in the Court of the II Additional Sub

Judge of Trivandrum.

P19 - Copy of the order of the Addl. Sub Court,

Thiruvananthapuram.

P20 - Copy of the letter dated 26.04.1985

P21 - Copy of the letter dated 11.05.1985 to the Regional Engineer,

KSHB, Trivandrum.

P22 - Copy of letter dated 09.05.1985

P23 - Copy of letter dated 28.06.1985 issued by the complainant

P24 - Copy of letter dated 16.11.1986 addressed to Chairman,

KSHB, Tvpm.

P25 - Copy of acknowledgement card addressed to the Secretary,

KSHB

P26 - Copy of letter dated 10.03.2006 addressed to complainant

P27 - Copy of letter dated 24.02.2006 addressed to Secretary,KSHB

P28 - Copy of acknowledgement card addressed to Secretary,KSHB

P29 - Copy of letter dated 11.10.1985

P30 - Agreement for sale of the property.

III OPPOSITE PARTY'S WITNESS :

DW1 - K.P. Ushakumari

DW2 - B. Vikraman Nair

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Application for Registration for allotment of house plots.

D2 - Agreement for sale of the property.

D3 - Under certificate of posting.

D4 - Copy of the letter dated 02.08.2004 addressed to complainant

D5 - Copy of letter dated 22.02.2006

D6 - Copy of Ambala Nagar Housing Scheme Plot No. 22

D7 - Extract of the minutes of the Board Meeting

D8 - Ambala Nagar Housing Extension.

Sd/-

PRESIDENT