BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT  HYDERABAD.

F.A. 321/2008 against C.C. 18/2003,  Dist. Forum, Adilabad

Between:

The Executive Engineer (Housing)

A.P. Housing Board

Warangal.                                                   ***                           Appellant/

            Opposite Party        

                                                                   And

T. Pratap Singh, S/o. Ram Singh

Age: 50 years,  Telephone Operator

R/o. H.No. 6-188, Khanapur

Adilabad Dist.                                             ***                         Respondent/

Complainant

Counsel for the Appellant                           M/s. D. Ranganath Kumar.

Counsel for the Respondent:                       M/s. V. Gourisankara Rao.

CORAM:

HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.

    &

                                 SMT.M.SHREESHA, LADY MEMBER.
                                                         

MONDAY, THIS THE  ELEVENTH DAY OF OCTOBER TWO THOUSAND TEN

ORAL ORDER:  (Per Hon’ble Sri Justice D. Appa Rao, President.)

***

1)                This is an appeal preferred by the opposite party   A.P. Housing Board against the order of the Dist. Forum directing it to pay Rs. 28,500/- towards final settlement of the claim.

2)                The case of the complainant in brief is that a notification was issued by the appellant board for allotment of houses under various schemes.    He paid Rs. 200/- towards application fee and on the request of the appellant to pay 10% of the estimated cost of the house he paid as estimated viz, Rs. 4,800/-.    Later it enhanced the said cost and directed him to pay difference of Rs. 4,800/-.  It has once again requested him to pay second and third instalments on the escalated estimation of the house.  He altogether paid Rs. 28,500/-.   Accordingly the appellant allotted a house LIG-85 in his favour and directed him to take possession.  When he verified the house he found that sub-standard material was used and therefore he sought for refund of the amount which it did not comply.    Therefore he filed the complaint for refund of Rs. 28,500/- together with compensation of Rs. 10,000/- and costs.

3)                The appellant resisted the case.   However it admitted that the complainant had paid Rs. 28,500/-   from 19.8.1982 to 22.7.1994 towards 30% of the cost of the allotted house.    On that house No.  LIG-85 was allotted on 4.6.1996 after its completion.    In fact the complainant submitted a letter on 4.6.1996 informing that he had taken physical possession of the house allotted to him  and was complete in all respects.  The allegation that house was sub-standard was made after seven years  without any regard to the facts.  In fact he had to pay Rs. 98,761/- towards arrears of instalments in respect of above scheme.  As per clause-19 of lease-cum-agreement of sale   in case of default  in payment he was liable to be evicted from the said house.    Therefore it was not liable to refund the amount and therefore prayed for dismissal of the complaint with costs.

4)                The complainant in proof of his case filed his affidavit evidence and did not file any documents while the appellant filed the affidavit evidence of its   Executive Engineer and got Exs. B1 to B7 marked.

5)                The Dist. Forum after considering the evidence placed on record opined that the complainant belongs to LIG group expressed his inability  to pay and therefore the appellant could keep the house for itself  and seek  refund of Rs. 28,500/-.

6)                Aggrieved by the said decision, the appellant housing board preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective.  The complainant having taken possession about 7 years ago could not have turned round  and claimed refund of the amount when he had committed default in payment of balance of Rs. 98,761/-.   In fact the complaint ought to have been dismissed  as the A.P. Housing Board  was not  made a party contrary to  the provisions of  Section 3 of the A.P. Housing Board  Act, 1956 and also violated  Section 68 of the said Act without issuing two months statutory notice  as contemplated by it.    The complaint was barred by limitation.  Therefore it prayed for dismissal of the complaint with costs.

7)                The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?

8)                It is an undisputed fact that the complainant on payment of 30% of the cost took possession  of the house allotted to him on 4.6.1996,  and did not pay remaining balance.   When the board  was  insisting for payment of balance of Rs. 98,761/-,  the complainant after seven years,  has slapped this complaint,  alleging that the house that was allotted to him was sub-standard.  Undoubtedly for  non-payment of amount under lease-cum-agreement of sale it entails  his eviction.   Curiously the complainant has sought for refund of the amount solely on the ground that the house was sub-standard without any evidence.   If really it is substandard,  there is no reason why he  has been in occupation for all the seven years.   It is not his case that he had paid the remaining balance.    Evidently the board has been claiming the balance of amount by repeatedly issuing letters in 12/1997, 18.9.1998,   and 23.12.2002.   On that he filed the complaint alleging that the construction was defective.    He did not  prove the fact either by examining an engineer or surveyor.  Except his self-serving statement,  no evidence whatsoever was filed in order to substantiate that the construction was poor.  There are number of houses  constructed by the appellant  in and around  his house. 

9)                 Evidently the possession was handed over on 4.6.1996 vide Ex. B2.   the complaint was filed on 17.7.2003 almost seven years after taking delivery of possession.   We can understand if the defects are surfaced after one or two years but alleging  that the construction was sub-standard seven years after taking of possession cannot be believed.    At any rate there is no proof that the construction was sub-standard.    Evidently the complainant in order to get over non-payment of balance of amount  filed the complaint.     He could not give reasons   why he could not pay the remaining balance.  On the ground that there was defect in construction,  he cannot avoid payment of balance amount,  nor can  seek refund of the amount,  as he has been enjoying the property all through.    This is a classic case where the complainant has blatantly  violated the terms of the agreement and  also enjoying,  without paying balance after taking  possession of the property. 

10)              The learned counsel for the appellant contended that the complaint is barred by limitation.  The possession having been taken on 4.6 .1996   he could  have filed  within two years but filed it after seven years contrary to  Section 24(A) of the Consumer Protection Act.    Undoubtedly the complaint is barred by limitation.   He could have filed a petition u/s 24A to condone delay in filing the complaint.   Since no application is filed for condoning the delay, we are of the opinion that the complaint is barred by limitation.

11)               The complainant filed the complaint against the Executive Engineer of A.P. Housing Board contrary to Section 3 of the A.P. Housing Board Act, 1956.    It is a body corporate and has to be sued and be sued in its own name.    The opposite party is only an employee and was not authorised either to represent or the complainant could file a complaint against him. 

12)               The learned counsel for the appellant also contended that the complainant did not comply the mandatory provisions of Section 68 of the A.P. Housing Board Act.    It lays down that no suit can be filed against the board or its employees unless a two month notice of the intending suit and the cause thereof is given.    Admittedly the mandatory notice stipulated thereof was not given.     The Hon’ble Supreme Court   in   Patel Roadways Ltd. Vs. Birla  Yamaha Ltd., reported in I (2000) CPJ 42 (SC)  while interpreting a provision of the  Carriers Act  in which the term ‘suit’  was mentioned, held that  the proceedings  before the Consumer  Fora  fall within the term ‘suit’.  Therefore compliance of statutory notice for filing the complaint is mandatory.    The very same yardstick would apply in the instant case.    The complaint is not sustainable either on facts or law.    The Dist. Forum went wrong in directing refund of the amount when the complainant himself had committed default in payment of remaining balance.

13)               In the result the appeal is allowed setting aside the order of the Dist. Forum. Consequently the complaint is dismissed with costs computed at Rs. 2,000/-.  Time for compliance four weeks.  

1)      _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER           

   Dt.   11. 10. 2010

*pnr

“UP LOAD – O.K.”