BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD : THIRUVANANTHAPURAM
PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT
SMT. R. SATHI : MEMBER
SMT. LIJU B NAIR : MEMBER
C.C. No: 130/2011 Filed on 18/04/2011
Dated: 31..08..2013
Complainant:
T.S. John, S/o T.C. Samuel, Thazhompadickal, Plot No. 7, Tilak Nagar, Nalanchira – P.O., Thiruvananthapuram – 15.
(By Adv. P.P. Balakrishnan Nair)
Opposite parties:
The Kerala State Housing Board, Thiruvananthapuram by its Secretary, Housing Board Building, Santhi Nagar, Thiruvananthapuram.
The Chief Engineer, Kerala State Housing Board, Santhi Nagar, Thiruvananthapuram.
(By Adv. Meena. C.R)
This O.P having been heard on 16..08..2013, the Forum on 31..08..2013 delivered the following:
ORDER
SMT. LIJU B NAIR, MEMBER:
The complainant purchased a plot numbered S7 from the Nalanchira Housing Accommodation Scheme sponsored by the opposite party Kerala State Housing Board. The plot purchased by the complainant on 15/12/1997 was originally allotted to one Mr. Martin Selvaraj on certain conditions stipulated in the agreement which was also treated as part of the agreement signed by the complainant and Mr. Martin Selvaraj with the Housing Board. The consideration paid by the complainant to Martin Selvaraj was Rs. 1,40,874/- which was the amount tentatively fixed by the opposite party for plot No. 7 and paid by Martin Selvaraj to the Board. The purchase of the housing plot by the complainant was agreed by the opposite party along with the original allottee Mr. Martin Selvaraj. One of the conditions stipulated in the said agreement was that the cost fixed by the opposite party was tentative and was liable to be revised on account of enhanced compensation if any, that may be passed by the Land Acquisition Courts in favour of earlier owners of property acquired by the Board under the said scheme. Before signing the agreement, the complainant was forced to remit an additional amount of Rs. 1,74,583/- towards proportionate additional land value payment of enhanced compensation awarded by the Land Acquisition Reference Court, Trivandrum to the claimants. Complainant was also asked to remit an additional amount of Rs. 5,200/- towards interest. The complainant remitted the additional amount of Rs. 1,74,583/- and Rs. 5200/- as interest solely on the undertaking given by the officials of the opposite party that they would refund the said amount if it is found as excess payment on final settlement. In the meantime, the State of Kerala and many allottees filed appeals against the award passed by the Land Acquisition Court, Trivandrum. On the judgement dated 26/3/1992 before the Hon'ble High Court, the opposite party was also impleaded as additional respondent in the appeals, though they were not impleaded in the Land Acquisition Reference Court, Trivandrum inspite of their undertaking that the board themselves would take proper steps to defend the reference cases. The Hon'ble High Court vide its judgement dated on 04/12/1998 has set aside the award dated 26/03/1992 and the entire matter was remanded back to the Sub Court, Trivandrum for a fresh consideration. High Court was also pleased to pass the said remand order permitting all the parties to adduce evidence in the Lower Court. The lower court had again considered the entire matter afresh and after a detailed trial from the side of the allottees as well as the Housing Board, passed a fresh award by which there was a 10% enhancement in the original award amount passed by the District Collector, Trivandrum, but all the claimants who were dissatisfied with the 2nd award passed by the Land Acquisition Court filed appeals before the Hon'ble High Court. The allottees were also additional respondents in the appeals. The Hon'ble High Court heard the appeals and refixed the land value allowing nearly 5% enhancement of the land value fixed by the Land Acquisition Reference Court, Trivandrum. On the basis of the final decision of the Hon'ble High Court on 10/08/2005 opposite party refixed the land value including the development charges of the plot on the basis of the repeated request and reminders submitted by the plot allottees. Accordingly the value for the complainant's plot No.S7 was refixed as Rs. 1,63,673/- and thereafter a pacca sale deed was registered in complainant's name on 12/08/2008 conferring absolute right, title and ownership to the complainant. Thereafter the complainant have approached the Housing Board Authorities for getting back the balance amount additionally paid by the complainant on 16/08/1997 and sent letters. From the contents of the said letters and the attitude taken by the officers of the board it can be clearly seen that the Housing Board has fully violated their own assurances given to the complainant at the time when they had accepted the additional amount. It is also true that the additional amount was paid by the Board during the year 1993-1994 whereas the complainant remitted the additional amount on 16/08/1997. There are also allottees who had not paid any additional amount. Certain allottees were descriminated and at the same time certain allottees like the complainant were cruelly punished by the opposite party without giving back the excess amount paid. All the above loss and hardships had happened to the complainant because of the gross negligence and clear deficiency in discharging the service on the part of the opposite parties. Exorbitant awards were passed origially by the LAC, due to the negligence on the part of the opposite party. It is also true that 50% of the amount was paid by the opposite party during 1993 – 94 LAR Court cases was on the basis of the enhanced compensation on the original awards dated 26/3/1992. But the said award was set aside by the Hon'ble High Court on 04/12/1998 with a direction. Since claiments accepted the amount deposited by the board on furnishing Bank Guarantee as directed by the Hon'ble High Court the board could have realised the excess amount deposited from the bank guarantee itself. The order of the Hon'ble High Court is very clear on this matter. As per Class (6) of the agreement the board was entitled to refix the land value only after final settlement of all accounts of enhanced compensation and as such the board was not entitled to ask interim payment of any amount when finalisation of compensation was pending before the Hon'ble High Court, even then it was left unopposed by the complainant and remitted the amount on the assurances given that the amount so remitted will be refunded as and when final settlement is made and saledeed executed. In these circumstances it is the duty and moral obligation on the part of the opposite party to take immediate steps for the refund of the excess amount of Rs. 1,63,773/- paid by the complainant with 12% interest of Rs. 2,76,639/- from 16/08/1997. The act of the board is a clear violation of natural justice and also contrary to the assurance given to the complainant. So the complainant pray for refund of the excess amount paid by him with 12% interest from 16/08/1997/-.
2. Opposite party entered appearance and filed version. The plot No. 7 in Tilak Nagar HAS was originally allotted to Mr. Martin Selvaraj for a tentative cost of Rs. 1,40,874/- and the same had been remitted by Mr. Martin Selvaraj on hire purchase basis after executing a hire purchase agreement with the board on 05/03/1994. The cost fixed by the Board at the time of allotment is purely tentative. In the preamble of the agreement, wherein clearly stated that the tentative cost is bound to be revised at a later stage taking into account the enhanced compensation awarded by Courts and Tribunal. It is denied that the proportionate share of LAR amount of Rs. 1,74,583/- was paid by the complainant. The proportionate share of LAR amount of Rs. 1,74,583/- was paid by the original allottee on 16/08/1997 vide chalan No.4 dated 16/08/1997 before effecting the transfer of allotment in favour of complainant on 16/11/1997. The amount of Rs. 5,200/- as also remitted by Sri. Martin Selvaraj, original allottee towards dues on tentative cost vide chalan No.2 dated 21/11/1997. The copies of the chalan No.4 dated 16/08/1997 and chalan No.2 dated 21/11/1997 are produced. Mr. Selvaraj is the only person who is liable to pay the amount by virtue of agreement executed with the board on 5/3/1994. Board decision dated 07/10/1995 allows third party transfer of allotment to allottees other than relatives, considering the fact that Board cannot issue pucca sale deed to its beneficiaries due to the pendency of LAR cases. Due to this decision of the Board, Mr. Martin Selvaraj had transferred the allotment of plot No.S7 vide proceedings No.E6/NLA S-7 dated 22/11/1997 of Regional Engineer, Kerala State Housing Board. As such the complainant became the Transferee / Allottee of Board with effect from 22/11/1997. On the basis of the transfer agreement dated 27/11/1997, the complainant became the allottee of plot No. S7. Hence he is entitled to get back the excess amount remitted by him, if it is found so, on settlement of accounts. The revenue authorities ie., the Special Tahsildar of the Government of Kerala who does the acquisition work for and on behalf of Board conduct the LAR cases through the Government pleaders. There are 31 LAR cases with No. 18/89, 5/88 & 39/88 in this scheme. The learned Sub Court has not awarded any compensation in LAR No. 18/89. But enhancement compensation was allowed in LAR 5/88 and 39/88 by the Lower Court. Immediately on pronouncing the order in LAR 5/88 & 39/88, the claimants filed an Execution petition for realisation of the decretal amount. The Kerala State Housing Board deposited an amount of Rs. 25,00,000/- ie. Rs. 10,00,000/- on 18/03/1993 and an amount of Rs. 15,00,000/- on 25/06/1993 and an amount of Rs. 41,51,671/- on 25/06/1994 towards cases bearing Nos. LAR 5/88 and 39/88 respectively. Thereafter, the State of Kerala filed an appeal before the Hon'ble High Court bearing LAA No. 134/93 and LAA No.307/93 against the judement and order in LAR 5/88 & 39/88. This opposite party was impleaded as respondent No. 3 in the said cases. By way of judgement dated 04/12/1998, the Hon'ble High Court of Kerala to set aside the order in LAR No. 5/88 and 39/88 and remanded the matters for fresh disposal. After hearing the matters afresh, the learned Sub Court decreased the enhanced land value and directed the land owners to refund the excess amount received as enhanced compensation. The District Collector, Thiruvananthapuram has initiated RR steps against those claimants to realize the excess amount. Immediately on realizing the amount, the opposite party is ready to refund the excess amount remitted by the allottees of Tilak Nagar HAS including the complainant. It is true that on the basis of reduction in the LAR compensation the amount collected from the complainant is excess. But the quantum of the excess can be calculated only after the receipt of the amount from the land owners. At present the Board has not received the excess amount already expended on the basis of court directions from the land owners. So it is considered as the expenditure to the scheme till its receipt. The board is trying its level best to realize the amount. It is most respectfully submitted that due to the said reasons, the opposite party is not in a position to refund the amounts remitted by the allottees of Tilak Nagar HAS. The complainant is aware and admitted in his complaint itself that the opposite parties accepted the amount on the basis of the Court direction towards the additional land compensation and also share of its realization from the complainant proportionately on the basis of this expenditure made by board. It is true that the LAR compensation is revised on appeal and thus a huge amount of public money is to be realized. The LA Authority is trying their level best to realize it from the land owners. So the complainant's claim is not admitted till the realization of the amount. The refund of the amount is only possible on the basis of amount received on settlement. The Kerala State Housing board is a Government agency functioning on the basis of the Kerala State Housing Board Act, 1971 and also on the basis of directions from Government. While providing decretal amount in LARs the Board has acted as per the directions of the Hon'ble High Court and the LA Authority. It is true that the LA compensation has reduced on appeal and a huge excess is to be realized of the excess amount from the parties are taking steps to realize the amount. But the land owners are taking their own measures for not to refund the amount by approaching different courts. So there is no negligence on the part of the board or its officials in realizing the amount as alleged. The board fixed the cost of the plot on the basis of expenditure done for the scheme. Since the excess of compensation is not realized from the parties, at present no amount is refundable to the complainant. The calculated amount of excess is materialized only when the excess compensation fixed by the court is realized from the land owners. It is vehemently denied that the exorbitant awards were passed by the LA Court, due to the negligence on the part of the board. The award was passed by the Hon'ble Sub Court of Trivandrum. The remittance of amount was done as per the directions of the Hon'ble High Court and the amounts were worked out by the LA authority. The opposite party has provided the amount only. It was verified by the LA Authority and they made the remittance. So the LA compensation was awarded and remitted on the basis of Lower court judgements. The same was revised and a huge amount is to be realized from the land owners. The opposite party has taken earnest steps, which are under progress to realize the amount by the LA Authority, Tahsildar.
3. Points raised for consideration are:
Whether there is any amount refundable to the complainant?
Whether there is deficiency in service on the part of the opposite parties?
Cost and compensation if any?
Complainant and opposite parties filed proof affidavits and both sides were examined. Complainant's documents were marked as Exts. P1 to P7 and Exts. D1 & D2 are the documents produced by the opposite parties.
4. Points (1) to (3): Complainant filed this complaint to get back the excess amount he paid towards the plot allotted to him through 1st opposite party, ie Kerala State Housing Board. Originally the plot was allotted to one Mr. Martin Selvaraj. Complainant herein purchased the said plot from Mr. Martin Selvaraj with the consent of opposite party which is evident from Ext. P1. Since the price fixed for the plot was tentative, Rs. 1,74,583/- was paid towards additional land value as per enhanced compensation awarded by the Land Acquisition Reference Court, Trivandrum, Rs. 5,200/- was paid as interest also. These amounts were paid believing the words of the opposite party, that excess amount will be refunded at the time of final settlement. The award passed by the LAR court was challenged before the Hon'ble High Court. The Apex court set aside the order of LAR Court and remanded for fresh consideration. Again an award was passed by LAR Court with an enhancement of 10% and the claimants again approached the Hon'ble High Court. Hon'ble High Court again heard the appeals and refixed the land value allowing nearly 5% enhancement of the land value fixed by the LAR Court. According to this order, complainant's plot valued Rs. 1,63,673/- only and the sale deed was executed in his favour on 12/08/2008. The additional amount paid by the complainant was not yet refunded to him against the promise of the opposite party. So he approached the Forum to get that refund. Opposite party also admits the same contentions of the complainant. The enhanced price was paid to the land owners as per the earlier LAR Court order, when Hon'ble High Court revised the land value, the land owners were given notice to remit back the excess amount they received. But almost all of them approached several courts and got stay for the same. So 1st opposite party is on the way of collecting and they will settle the matter as and when they receive the same. Ext. P1 is the tripartee agreement dated 15/12/1997 executed between KSHB, Martin Selvaraj and T.S. John the complainant in this case. Ext. P2 is the sale deed dated 12/08/2008 executed in favour of the complainant by KSHB. Letter dated 14/01/2009 demanding refund is marked as Ext.P3 another letter addresed to the Secretary of KSHB dated 07/04/2009 is Ext. P4. Reply letter from the opposite party dated 28/04/2009 stating that refund will be possible only after realizing the excess money from the claimants, issued to the complainant is Ext. P6. Copy of judgement dated 04/12/1998 of Hon'ble High Court of Kerala remanding the LAR cases for fresh consideration is marked as Ext. P7. Copy of receipt dated 16/08/1997 showing the remittance for Rs. 1,74,583/- by Martin Selvaraj is produced by the opposite party and is marked as Ext. D1. Purpose of remittance in the receipt is shown as the land value. Copy of another receipt for penal interest and miscellaneous account for Rs. 5,200/- dated 21/11/1997 is marked as Ext. D2.
On going through Ext. P2, the absolute sale deed executed in favour of the complainant it is seen that the final assessment of the complainant's plot is for Rs. 1,63,673/- only. Altogether complainant remitted Rs. 3,32,943/- only. The last payment was on 21/11/1997, for Rs. 5200/- on the head, penal interest detailed statement of accounts was furnished by the complainant itself. This statement was not challenged by the opposite parties. They also admits that complainant remitted excess money. Regarding refund, their attitude is to be questioned. In their version they submits that "the quantum of the excess can be calculated only after the receipt of the amount from the land owners". Here, we don't understand the role of the land owners. Land owners received money as per the order of LAR court order. Complainant was also forced to pay excess amount on the same ground. Figures well speak here. The excess amount can be easily calculated by deducting the original value of land as mentioned in Ext. P2 from the total remittance done by the complainant. These amounts and facts are not challenged by the opposite parties' any where. They don't even ask a single question challenging this calculation. The calculation given by the complainant in page No. 4 of the complaint regarding remittance is not challenged by the opposite parties at any point of time. So we don't find any point to interfere in this calculation. So the total amount paid by the complainant is Rs. 3,32,943/- out of which copy of receipts of Rs. 1,74,583/- and Rs. 5,200/- were produced by the opposite parties themselves. They don't have a case that any amount is due from the complainant. So on perusal of Ext. P2, copy of sale deed, it is seen that final price for the land comes to Rs. 1,63,673/- only. So we can conclude that complainant remitted Rs. 1,69,270/- in excess (ie. 3,32943 – 163673). So the complainant is entitled for this amount.
It is seen that the original sale deed was executed in favour of the complainant on 12/08/2008, that too after a lapse of 10 years after collecting excess money. Had it been with the complainant, he will be getting interest for the same. Opposite party was also holding the money of the complainant for more than 10 years, without executing the saledeed. Here, the opposite parties' will raise a contention that the delay was due to LAR cases and their appeals. But the appeal was dismissed on 14/12/1998.Then also it took such a long time for the executions of saledeed. This deligent attitude of the opposite party amounts to unfair trade practice and constitutes deficiency in service. Since the claimants of LAR cases accepted the amount deposited by the Board on furnishing Bank Guarantee as directed by the Hon'ble High Court, as is evident from Ext. P7, Board can very well realise the excess amount paid to the claimants from the Bank Guarantee itself. But they have not done so. When the complainant approached for refund, the attitude taken by the opposite party reminds us of private persons, doing money lending business. Being a Government institution, Society expects much more expedience and promptness from them. Here they failed miserably.
Complainant claims refund with 12% interest from 16/08/1997, the date of remittance. On going through Ext.P1 it is evident that complainant became the owner of this plot only on 15/12/1997. So he is eligible to get interest from that day only. Regarding, the rate of interest, we are of the considerate view that justice will be well met if we order to refund Rs. 1,69,270/- with 10% interest from 15/12/1997. Since interest is allowed for the amount, separate compensation is not ordered.
In the result, complaint is allowed. Opposite parties' are directed to refund Rs.1,69,270/- with 10% interest from 15/12/1997 to the complainant within 2 months of receipt of this order. After 2 months, the amount will carry interest at the rate of 12%, till the date of realization.
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 31st day of August, 2013.
sd/-
LIJU B NAIR,
MEMBER
sd/-
G. SIVAPRASAD, PRESIDENT
sd/-
R. SATHI,
ad. MEMBER
C.C.No: 130/2011
APPENDIX
I. Complainant's documents:
P1 : Copy of agreement dated 15/12/1997
P2 : Copy of Absolute sale deed (land only) dated 12/08/2008 executed between T.S. John & KSHB
P3 : " letter dated 14/01/2009 issued by the complainant to Hon'ble Minister, KSHB., Thiruvananthapuram.
P4 : " letter dated 07/04/2009 issued by the complainant to the Secretary, KSHB., Thiruvananthapuram.
P5 : " letter dated 28/04/2009 No: E6/S-7/NLA issued to the complainant by KSHB.
P6 : " letter dated 25/11/2009 No.E6/NLA/GL/08 issued to the complainant by the Executive Engineer, Division No.2 KSHB.
P7 : " Order of the Hon'ble High Court of Kerala dated 04/12/1998.
II. Complainant's witness:
PW1 : T.S. John
III. Opposite parties' documents:
D1 : Copy of current account (pay-in-slip) for an amount of Rs. 1,74,583/-
D2 : Copy of current account (pay-in-slip) for an amount of Rs. 5200/-.
IV. Opposite parties' witness:
DW1 : Kunjumon. G sd/-
PRESIDENT
