Haryana

StateCommission

A/213/2016

OM PARKASH WADHWA - Complainant(s)

Versus

HOUSING BOARD,HARYANA - Opp.Party(s)

DHAWAL BHANDARI

26 May 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA,          PANCHKULA.

 

                                                First appeal No.213 of 2016

                                                  Date of Institution: 11.03.2016                       Date of Decision: 26.05.2016

 

Om Parkash Wadhwa S/o Late Sh.G.C.Wadhwa, 145, Shubham, Apartment, IP Extension Plot Number 37, Patparganj, Delhi 110092.

…..Appellant

                                      VERSUS

1. The Chief Revenue Officer-1, Housing Board Haryana, Plot No.C-15, Awas Bhawan, Sector-6, Panchkula Pincode 134109.
2. Chief Administrator, Housing Board Haryana, Awas Bhawan, Plot No.C-15, Sector-6, Panchkula, Haryana.
3. The Estate Manager, Housing Board Haryana, 1013 Saraswati Vihar, Chakkarpur, Gurgaon, Haryana.

          …..Respondents

 

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                   Mrs. Urvashi Agnihotri, Member.  

 

                                 

For the parties:  Mr.Dhawal Bhandari, Advocate counsel for the appellant.

 

O R D E R

 

R.K.BISHNOI, JUDICIAL MEMBER :-

It was alleged by the complainant that he was allotted dwelling unit by housing board on 27.05.1987 as per advertised cost of Rs.1,27,000/- after rebate of Rs.8000/- (paid in advance) under self financing scheme. After receiving 100% advertised cost on 23.06.1987 housing board enhanced the cost on  05.11.1990. It again revised price in the year 1997 illegally and charged undue interest. The cost sheet of 1997 was illegal and time barred.  He was forced to pay illegal demand on 26.07.2011 to get no due certificate.  Vide letter dated 14.02.2012 housing board again demanded Rs.25,035/- which was altogether illegal, as alleged in the complaint.  He was trying since the year   1990 to get the matter settled, but, without any result. The O.Ps. be directed to give following relief:-

“a.     Direct the Board to pay 11% interst on 100% advance payment of Rs.1,35,000/- paid under lump sum category for the correct delayed possession of the house as per commitment in the advertisement for 16 months 21 days (from 15.05.1987 till 05.10.1990 the date of dispatch of the said letter dated 28.08.1990) together with interests till payment at the rate charged by Board by scraping the untenable plea taken by Board to allow interest for the delayed possession on 10% Registration Amount of Rs.13,500/- only as the same is no where mentioned in the advertisement.  The Board received 100% payment under lump sum category and utilized the total money received for the delayed period. As on 05.10.1990 the amount for delayed possession of house for the period of 16 months 21 days works out to Rs.20,666,25 and further order interests at compound rate till date of payment to the allottee to be calculated and paid.  Housing Board had utilized the hard earned money deposited by the complainant for a long period and as such the deficiency of service on the part the Board. Board incorrectly allowed 11% interest for delayed possession for 15.5 months in cost sheet of 1990 and 14.5 months in cost sheet of 1997 and also the interest are contradictory and incorrect.

b.      Dismiss the demand raised by the Housing Board on 14.02.2012 after 25 years on account of socalled late receipt of payments at HQ:Chandigarh in the year 1987 and at Gurgaon office in the year 1990 being incorrect, illegal and not tenable in the eyes of law as the payment was made by complainant well within time in 1987 and 1990. Moreover, no communication for delay, if any, was ever sent from the year 1987 and 1990 till 2012 after receipt of payments.  Even while demanding and receiving final cost of the house with interests on 26.07.2011, the Board never raised this issue in their demand letter/reminders from 2008 till 2011 etc.  Ordering proper compensation from the Board officials for unnecessary/illegally raising this demand after 25 years without any authority from HQ causing mental agony, wastage of valuable time and energy and harassment to the applicant.

C.      Order reworking/revising of cost sheet of 1980 by removing undue elements of charges/interests and also by spreading the cost of Type II houses on 186 houses instead of 185.  After having received 100% cost of house under lump sum category as advertised on 23.06.1987  no demand of any amount was ever raised by board and which was not met within time by the allottee and therefore, there is no question of interest of charging of any interest by Board in their cost sheet of 1990.

d.      Order final cost sheet raised on 10.07.1997 as illegal and time barred and dismiss the same.  Order refund of the payment received with interests till payment, in terms of clause 2 of the enhanced demand cum possession letter of the Board dated 28.09.1990 despatched on 05.10.1990 which states that no change in the price shall be made after 7 years from the date of allotment.  The allotment of a type II house was confirmed on 25.05.1987.  The total 100% cost of the house Rs.1,35,000/- under lump sum category as per advertisement was received in advance by Housing Board on 23.06.1987 and therefore, period of 7 years expires on 23.06.1994.  Hence the demand of final price vide letter dated 10.07.1997 after 10 years ( of allotment of house and receipt of 100% advertised cost of house under lump sum category), is illegal and requires to be dismissed and the final cost realized with interests be refunded with 14% interests till release of payment per annum compound as the payment was made by the applicant under protest and after lot of chasing.

          It is also pertinent to mention here that in the said final cost sheet of 1997 Board also charged interest for period beyond possession of the house i.e. from July, 1990 to April 1991 which is illegal and complainant was forced to pay on 26.07.2011 under protest in order to get No Dues Certificate from the Board.  The possession of the house was taken by complainant on 05.11.1990. Therefore allottee is not liable to be charged any interest component after having taken possession of the house. The complainant cannot be charged interest till possession of last house was taken by other allottees.  Moreover, this cost sheet does not adjust the cost of the 186^th House no.1013 type II kept for office use by the Board in the total cost of the houses and any other additional houses constructed by Board whose cost has not been taken into account while working out the final cost of houses. The total cost of Type II houses is therefore to be spread on 186 houses whereas Board spread only on 185 houses.  Once the final cost sheet of 1997 is found illegal with reference to the date of allotment and receipt of 100% cost of the advertised cost in 1987 and dismissed being time barred, the above elements alongwith other as stated above will get automatically taken care of and allottees relieved of the undue charges paid under protest.

e.      Ordering Board to refund following interest after having received full cost of the house under lump sum category as per advertisement released on 30.08.1986:

i)        Interest for the period prior to release of advertisement i.e. 22.04.1985 to 30.09.1986), this act of Board amounts to malpractice of declaring incorrect price at the time of advertisement.

ii)       Interest for the period after having received full cost of house on 23.06.1987, for the period 14.11.1988 to 31.08.1990 enhanced cost on 05.11.1990; and

iii)      Interest for periods after handing over possession of house from July, 1990 to April, 1991.  Possession was handed over possession on 05.11.1990 and order reworking of cost sheet of 1990, declaring cost sheet of 1997 as illegal.

iv)      Provide compensation for allotting incomplete houses to the extent of Rs.50,000/- being cost of the deficiencies pointed out earlier.

v)      Order litigation charges of Rs.20,000/- for involving the applicant into litigation.

vi)      compensation of Rs.100,000/- for wastage of valuable time, harassment and mental torture since beginning for deficiency in services to the consumer by not issuing no dues certificate and also for non-execution of the conveyance deed since 2000 and raising undue and illegal demands pertaining to year 1987 and 1990 after 25 years and causing harassment.

vii)     The cost of the house was advertised at Rs.1,35,000/- in 1986 and full cost of house under lump   sum category was taken by Board in 1987.  It was increased to  Rs.198,597/- (Rs.1,76,700/- plus ELC of Rs.21700) at the time of handling over possession in 1990 and subsequently the same was finally fixed at Rs.1,94,300/- in 1997. There should not have been any increase after having realized 100% cost of the house fixed under lump sum category in the advertisement or if the increase is legally justified as per terms of the advertisement, allotment letters etc. there should have been corresponding increase in rebate/interests for making lump sum payment. The Board should not be allowed to increase price on enhanced land cost or enhanced construction cost and charge interest for the periods prior period to release of advertisement (1985) and after handing over possession (after 5.11.1990). Dismiss the above components of cost increase after having realized full cost of house in advance and after having given possession of the house.

viii)    Order issue of No Dues Certificate and Execution of conveyance deed pending since the year 2000.

ix)      Any other relief the Hon’ble Consumer court may deem fit in the case under the circumstances.”

2.      O.Ps. filed reply controverting his averments and alleged that he was allotted house No.487 vide letter No.3183 dated 28.09.1990 as per terms and conditions mentioned therein and the provisions of Haryana  Housing Board Act, 1971 (In short “H.B.Act”) and rules and regulations framed thereunder.  Hire-Purchase Tenancy Agreement dated 05.11.1990 was executed in between them and possession was delivered on that very day.  As per condition No.6 of advertisement the price was tentative and liable to be revised as per condition Nos.9 and 10 of allotment letter. After delivery of possession on 05.11.1990, letter dated 10.07.1997 was issued to complainant regarding finalization of cost of unit.  He did not raise any type of objection regarding tentative price or defect in the house at that time and has filed this complaint in the month of August 2013 which is time barred under Section 24 A (1) of the Consumer Protection Act, 1986 ( In short “Act”).  Neither the complainant was consumer nor this dispute was covered by the Act.  Vide letter dated 10.07.1997 the complainant was advised to deposit Rs.17600/- within 30 days, but, he did not deposit the same. Vide letter dated 22.05.2001 complainant requested to issue No Due Certificate. Vide letter No.5118 dated 16.10.2001 he was informed that final cost was not deposited by him, so No due certificate could not be issued. He was requested vide letter Nos.2805 dated 08.09.2008,  3861 dated 05.12.2008 and 774 dated 09.03.2009 to deposit the requisite amount.  He made representation regarding finalizing cost of house. Resident’s Welfare Association  also made representation regarding finalization of cost of house in Saraswati Vihar Colony.  He was informed vide letter No.2142 dated 30.09.2009 that taking into consideration all the aspects, final amount due was Rs.45201/- as on 30.09.2009 and was requested to deposit within 30 days. Reminders were also  issued to him vide letter Nos.2575 dated 09.11.2009,  3128 dated 16.12.2009 and 2374 dated 15.07.2011. Ultimately he made payment on 26.07.2011. When interest on delayed payment was calculated it came to Rs.25,035/- and he was asked to deposit the same vide letter No.603 dated 14.02.2012.  Reminder was also sent vide memo No.1739 dated 08.06.2012.After his complaint, Chief Administrator (C.A.) Housing Board asked vide letter dated 16.04.2013 to settle his grievance. Vide letter No.1429 dated 14.06.2013 he was asked to deposit Rs.897/- only.  His averments about deficiency in the construction were altogether wrong. There was no discrepancy in the cost sheet. Objections about jurisdiction, maintainability as per opinion of Hon’ble Supreme Court expressed in Charanjit singh Chadha Versus sudhir Mehrareported in AIR 2001 SC page 3721, estopple, locus standi, notice under section 67 of H.B.Act, 1971 etc. were also raised and requested to dismiss the complaint.

3.      After hearing both the parties, learned District Consumer Disputes Redressal, Forum, Gurgaon (in short “District Forum”) partly allowed the complaint vide impugned order dated 18.01.2016 and opined as under:-

“Para No.5          Therefore, after going through the facts  and circumstances of the case and the evidence placed on file, it emerges that all the matters pertains prior to 1997 and the possession of the house has already been taken in the year 1990.  In view of  the evidence on record the Ops have already adjusted the interest on account of delayed possession.   Therefore, all the reliefs prior to 1997 would be deemed to have been barred by limitation as provided u/s 24-A of Consumer Protection Act, 1986 because the present complaint has been filed on 05.09.2013 approximately after expiry of more than 15 years.

Para No.6   xxxxxxxxxxxxx

Para No.7 Thus, the demand of Rs.897/- is also held    to be time barred and as such the opposite parties are not entitled to claim this amount and thus, we direct the opposite parties to issue No Dues Certificate. We further direct the opposite parties to get the conveyance deed registered in favour of complainant on deposit of stamp and registration charges as per law within 30 days. Since the complainant has not deposited the requisite amount which has now been held to be barred by limitation, no deficiency can be attributed on the part of the opposite parties.”

 

4.      Feeling aggrieved therefrom, complainant-appellant has preferred this appeal on the grounds that impugned order is based on surmises and conjuncture. Learned District Forum did not take into consideration the points raised by him in the complaint.  Approach of learned district Forum was unheard of in the judicial canons.  His case has not been appreciated and proper relief is not given keeping in view the opinion expressed by Hon’ble Supreme Court and Hon’ble National Commission in so many case laws, mentioned in grounds of appeal. When amenities were not provided and conveyance deed was not executed, question of  limitation was open, so his prayer was not time barred. There was delay of 16 months and 21 days i.e. 01 year 04 months and 21 days in offering possession, whereas the interest was charged since very beginning.  It was no–where mentioned that interest would be payable on the delayed payment. The demand raised by Housing Board was altogether wrong and that is why that was reduced to Rs.897/-. Demand about cost of house was also illegal.  Request about compensation qua mental harassment, litigation expenses etc. is also not looked into, so impugned order be set aside.

5.      Arguments heard.  File perused.

6.      Learned counsel for the appellant vehemently argued that learned District Forum wrongly opined that his other claims were time barred because sale deed is not executed  as yet and all the amenities are not provided.  It was a continuous cause of action.  Learned District Forum did not award any compensation regarding mental harassment, deficiency in service, conveyance charges etc.  So impugned order be set aside. In support of his arguments he placed reliance upon the opinion of Hon’ble National Commission expressed in  Dhruv (A.T.t.) co-op housing society ltd. Vs. Dhruv constructions and ors. 2016 (1) CLT 570, Siddhartha De Sikdar and another Vs. Ramesh Chandra Basak and others 2015 (2) CPJ 332 and Sajal Roy Barman Vs.Prantosh Bandopadhyay and anr. 2011 (4) CPJ 223.

7.      This argument is devoid of any force.  From the perusal of impugned order dated 18.01.2016 it is clear that district forum has held demand of Rs.897/- as time barred and has directed O.Ps. to issue No Due Certificate and further to get the conveyance deed registered.  It is rightly observed that request of the complainant regarding other reliefs is time barred. The demand was raised in the year 1987, 1990 and 1997 and the possession was delivered to the complainant on 05.11.1990.  He did not allege at that time that there was any deficiency in the construction.  As per terms and conditions of ‘Agreement’ the price was tentative  which could have varied from time to time. Vide letter dated 30.06.2013 the demand was reduced to 897/- and he filed this complaint on 05.09.2013. As per facts mentioned above, this demand is set aside by the District forum.    Instead of raising constructive plea in the grounds of appeal, he has raised finger more about the conduct of the District Forum, which is unwarranted and need not be reproduced here.  There cannot be second opinion as far as the view of Hon’ble National Commission expressed in the case laws cited by appellant’s counsel is concerned, but, he cannot derive any benefit from them, because he did not raise any objection about type of construction and cost etc. in the year 1990, when possession was delivered to him. He kept sleeping over this fact since more than thirteen years, whereas in the aforesaid case laws, the allottees raised objection with all promptness. 

8.      More so, as per section 24 A (1) a complaint about any dispute cannot be filed after expiry of two years without the permission of the concerned Fora.  The appellant-complainant has failed to show that he moved any application before the District Forum to condone the delay.

          Opinion of Hon’ble Supreme Court expressed in V.N.Shrikhande (Dr.) Versus Anita Sena Fernandes 2011 CTJ 1 (supreme court) CP)  is as under:-

“Section 24A (1) contains a negative legislative mandate against admission of a complaint which has been filed after 2 years from the date of accrual of cause of action.  In other words, the consumer forums to not have the jurisdiction to entertain a complaint if the same is not filed within 2 years from the date on which the cause of action has arisen.    This power is required to be exercised after giving opportunity of hearing to the complainant, who can seek condonation of delay under section 24A (2) by showing that there was sufficient cause for not filing the complaint within the period prescribed under section 24 a (1).  If the complaint is per se barred by time and the complainant does not seek condonation of delay under Section 24a(2), the consumer Forums will have no option but to dismiss the same.”

9.      The present case is fully covered by this opinion. When there was no request to this effect, learned District Forum rightly came to conclusion that his complaint qua other reliefs was time barred.  In these circumstances if  learned District Forum did not allow any compensation qua mental harassment etc. it does not mean that this order is illegal.  Impugned order dated  18.01.2016 is well reasoned based on law and facts and cannot be disturbed.  Resultantly, appeal fails and the same is hereby dismissed in limine.

 

May 26th, 2016

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

S.K.