These are a set of 26 revision petitions filed by 13 Complainants against the order of the Himachal Pradesh State Consumer Disputes Redressal Commission. In a common order pronounced on 15.6.2012, the State Commission has decided 55 appeals, some filed by the Complainants and others by the OP/HP Housing & Urban Development Authority (HIMUDA). For facility of reference, facts as in the case of the Revision Petitioner/Complainant/Amar Nath Vashishtha, are referred to. He has filed two identical revision petitions Nos.2752 and 2753 of 2012. The first is against order of the State Commission in FA No.420 of 2010 and the second one in FA No.44 of 2011, both decided in the common impugned order.
2. The matter arose out of allotment of one room apartment to the Complainant in Parwanno by the respondent (HIMUDA) in 2005. The tentative costs was Rs.2.35 lakh and possession was expected to be delivered in about one year. However, the possession was eventually delivered in December, 2009, with a delay of nearly three years. The cost of the apartment was also revised to Rs.4.07 lakhs. Feeling aggrieved by this enhancement in cost of the apartment, together with delay in delivery of the possession, the allottees filed separate consumer complaints before the District Forum.
3. Before the District Forum, the stand of HIMUDA was that the main cause for delay was unreasonably long time taken by HP State Electricity Board to provide external electrification. On consideration of relevant evidence, the District Forum came to a conclusion that the amount required by the Electricity Board itself was deposited by HIMUDA with considerable delay, in January 2009, with no justifiable or plausible explanation. Having received the money from the complainants, HIMUDA should have promptly remitted the same to the Electricity Board to carry out the necessary external electrification works. This was held to be a deficiency of service, for which the Forum awarded compensation in favour of the complainants.
4. While considering the appeals filed by the Complainants, the State Commission allowed them to file additional evidence in the form of information obtained from the OP under Right to Information Act. The Commission has observed that :
“Admittedly, the possession of apartments was offered in June, 2009, vide letter dated 16.06.2009 Annexure C-6. That means possession was offered about 3 ½ years after the issuance of allotment letters. Explanation offered by the opposite party for delay is that the State Electricity Board delayed the providing of electricity connection for the colony. The same is shown to be incorrect on the face of it, because it is made out from respondent’s own record that it deposited the charges for obtaining electricity supply in January, 2009. There is a letter dated 02.01.2009 written by the Executive Engineer (E), Electrsical Division, HIMUDA to the Assistant Engineer, Electrical Sub Division, HPSEB, Parwanoo, vide which cheque for Rs.66,71,000/- was submitted towards demand charges for supply of electricity to the apartments, in question. Letter is the part of additional evidence tendered today and it is available in appeal titled Amar Nath Vashishta versus HIMUDA, F.A. No.44/2011. Now, when opposite party (HIMUDA) paid the requisite charges for obtaining electricity connection in June, 2009, it cannot be heard to say, that delay took place, on account of the State electricity Board having taken too long a time to release of the electricity connection.”
5. Thus, the District Forum as well as State Commission have both rejected the explanation of HIMUDA on the question of delay in execution of external electrification work. The State Commission also observed that as delivery of possession was agreed within one year, delay of 2 ½ years cannot be accepted. Even if allowance of six months is allowed, delay for the remaining two years remains unexplained. However, the Commission disagreed with the determination of quantum of compensation and reduces it to Rs.23500/- on the ground that:
“11. Reasonable compensation means the amount of money, which would reimburse to the aggrieved person for the loss sustained by him, because of the act of misfeasance and malfeasance. In this set of cases, complainants had deposited a sum of Rs.1,17,500/- each by December, 2006. They should have been delivered the possession as-soon-as they completed the payment of aforesaid amount of Rs.1,17,500/-, as indicated in the letter of allotment C-1 or in any case, within six months thereafter. Their amount of Rs.1,17,500/- each remained with the opposite party for more than two years, without they having been delivered the possession of the apartments. They were, thus, deprived of the use and occupation of the apartments for a period of two years. The use and occupation charges can legitimately be presumed to be equivalent to 10% per annum of the amount, which they deposited with the opposite party and for a period of two years, the amount at the aforesaid rate, works out at Rs.23,500/-. This, in our opinion, is the reasonable amount of compensation payable to each of the complainants.
6. Thus, the appeal of the OP was partly allowed by reduction in the quantum of compensation and simultaneously, the appeal of the Complainant was dismissed by the State Commission holding that increase in price as demanded by the OP cannot be called unjustified or excessive. The revision petitioners, therefore, filed two revisions, one against partial reduction in compensation and the other against rejection of their cases that the enhancement in price was excessive and unjustified. However, revision petitions are identically worded and carry the identical prayer to award a compensation of Rs.4.5 lakhs together with 18% interest and Rs.22,000/- towards costs of litigation.
7. We have carefully considered the contentions raised in the revision petitions and heard the counsels for the two parties, Shri Neeraj Gupta, Advocate for the revision petitioners and Shri Y. Prabhakar Rao, Advocate for the respondent/HIMUDA. On request, the two sides have also been permitted to file their written arguments.
8. It is contended on behalf of the revision petitioners that the housing unit was originally allotted on 06.12.2005 at a price of Rs.2.35 lakhs. When the possession was offered in June, 2009, the cost was arbitrarily raised to Rs.4.07 lakhs. Actual possession could be taken in December, 2009. It is argued that no justification was ever provided to the allottees for increasing the cost. Nor was any material placed on record in justification of the increase. On the basis of information obtained subsequently by the Complainant/RP from the OP, it was found that:
“No compensation has been given on land or civil construction by any Court since initial allotment of single room flats at Sector-iv Housing Colony Parwanoo.”
It was also argued that when the project promised to be completed within one year, was actually completed in four years, the cost was bound to increase. The responsibility for this delay is only on the OP and the allottees cannot be saddle with the increase cost.
9. It is further argued that loading of Rs.78.89 lakhs on account of interest and Rs.38.33 lakhs towards additional expenditure are both arbitrary and should have been disallowed. These contentions have been directly considered by the State Commission and the following finding has been reached:
13. Complainants themselves have led additional evidence and one of the documents tendered in additional evidence is a letter dated 19.03.2011 written by the Executive Engineer, HIMUDA to the Public Information Officer. The letter has been written in response to a request for information sought by one of the complainants, namely Neeraj Gupta, under the Right to Information Act. As per this letter, out of the total amount of Rs.94.16 lacs anticipated expenditure, a sum of Rs.82.80 lacs had been spent. Total cost of 128 flacts as per this letter had been worked out at Rs.407.85 lacs and thus the cost of construction of each flat comes to Rs.3,18,632/. To this amount cost of plinth is required to be added. Cost of plinth of each apartment is shown to be Rs.1,03,206/- in another letter dated 27.07.2009 made available to complainant Amar Nath Vashishta under the Right to Information Act by the opposite party. The letter is available at page-69 marked R-13 in the complaint file of Amar Nath Vashishta versus HIMUDA, No.123/2009. Since a substantial portion of the anticipated expenditure is stated to have already been incurred as aforesaid, submission that addition of anticipated expenditure is unjustified, cannot be accepted.
14. As regards the contention, regarding addition of interest, suffice it to say that the allotment of apartments has been made under “Self Financing Scheme.” Complainants paid only about 1/4th of the total cost of the apartments, on account of 50% of the tentative cost and the rest of the money was spent by the opposite party. Opposite party has added interest to the expenditure incurred by it, on the construction of the apartments at the rate of 10% per annum. Since 3/4th of the amount had been spent by the opposite party itself, on the construction of apartments, it was justified to add interest on the money invested by it. And the interest added is at a very reasonable rate, i.e. 10% per annum simple interest.
15. In view of what has been discussed hereinabove, increase in the price as demanded by the opposite party, cannot be said to be unjustified, excessive or oppressive.”
10. Learned counsel for the respondent/HIMUDA argued that the petitioners have misrepresented the facts. It was not a case where the final price was agreed and then unilaterally revised by the OP. It was a case where allotments were made in 2005 on the basis of tentative cost. Construction of the project was taken up on self financing basis (SFS) and the final cost was worked out in 2009. Learned counsel relied on the decision of Hon’ble Supreme Court in Bangalore Development Authority Vs. Syndicate Bank (2007), vol.6, SCC 711 wherein it was held that where a flat is allotted on a tentative price subject to final determination of price on completion of project, the Authority is entitled to increase the price at the final stage.
11. The matter becomes clear from a perusal of para 17-H of the petition. The revision petitioner has argued-
“That once the Respondent had fixed the price of the unit on the basis of the costs assessed by the authority but no material has been place on record before, as to qua which materials, articles, goods or other accessories put to the project had led to escalation then, once the Respondent had not put the Petitioner to notice before inserting new conditions resulting in enhancement of the cost of the unit, then, the unilateral novation of contract or changing or altering the conditions of the contract (including the agreed estimated costs) is not bindings, inoperative, not leviable on the Petitioner herein, Thus the increase cost letter dated 16-06-2009 deserves to be set aside.”
This argument is clearly coming from an assumption that what was given at the time of inviting applications in 2005 was the final price of the unit and not the tentative price. This is factually incorrect. It is also incorrect that no material was placed before the fora below in justification of resultant increase. It is clear from the records, as well as the impugned order, that inclusion of the element of interest and additional expenditure, in the final price, had full justification. We find ourselves in full agreement with the finding of the State Commission on these costs, mentioned earlier in this order. Therefore, the contention of the revision petitioner that it amounted to inserting a new condition for enhancement of cost cannot be accepted. As for the quantum of compensation, we find that State Commission has fully explained the basis for arriving at the figure of Rs.23,500/-, in each case. We therefore, find no case for enhancement of the same. 12. In the result, we hold that the revision petitioners have failed to make out any case against the impugned order, which could justify intervention of this Commission in exercise of powers under Section 21 (b) of the Consumer Protection Act, 1986. The revision petitions are accordingly dismissed for want of merit, with no order as to costs. |
