F.A.No. 143 OF 2009 AGAINST C.D.No.6 OF 2008
 DISTRICT FORUM KHAMMAM

Between:

The Executive Engineer (Housing)

A.P.Housing Board, Nakkalagutta,
Hanumakonda, Warangal.
                                                                   Appellant/opposite party

A N D

P.Rama Rao S/o Appaiah
aged 65 years, Occ: Rtd. A.O./D.T.O.
H.No.7-3-61/1, Pakabanda Bazar
Khammam

                                                                    Respondent/complainant

Counsel for the appellant               Sri D.Ranganath Kumar
Counsel for the respondent            Sri P.Rama Rao (PIP)

          QUORUM:      SRI SYED ABDULLAH, PRESIDING MEMBER
                                                        &

                              SRI R.LAKSHMINARSIMHA RAO, MEMBER

                        MONDAY THE EIGTH DAY OF JUNE                   

                                         TWO THOUSAND NINE

          Oral Order ( As per Sri R.Lakshminarsimha Rao, Member)

***

The APHB Warangal is the appellant herein and opposite party before the District Forum Khammam in C.C.No.6 of 2008. 

          The facts leading to filing of the complaint before the lower forum that in response to the notification issued by the appellant in the month of June 1979 the respondent paid an amount of Rs.1,000/- towards initial deposit for registration of his name under MIG category house at Khammam.  The Regional Housing Engineer of the appellant issued letter No.04757/E2/EM/RHE/WGL/1991 dated 28.10.1991 informing the respondent that the APHB was acquiring land at  Dhamsalapuram/Khanapuram Haveli (V) and demanded the respondent to pay an amount of Rs.11,435/- towards 10% of the estimated cost of the house proposed to be constructed, including Rs.1,000/- which was already paid which comes to Rs.10,435/- within one month from the date of receipt of the letter.  The respondent paid Rs.10,435/- on 23.11.1991.  In the year 1994 the appellant had sent a letter bearing No.2058/DB/D3/EEH/WGL/94/MIG/04757 requiring the respondent to attend the office of Revenue Divisional Office Khammam at 11 a.m. on 13.4.1994 to settle the cost of the land proposed for acquisition with the land owners.  No meeting was held on the said date.  Again on 11.10.1994 the appellant addressed another letter requesting the respondent to meet him on 23.10.1994 at Khammam. 

On 23.10.1994 the appellant, the respondent and other applicants inspected the land at two or three places surrounding Khammam town.  The appellant informed the respondent that final decision would be taken after having discussions with the land owners.  Thereafter no communication was received by the respondent nor the appellant had paid back the amount of Rs.11,435/-.  Hence, the inaction of the appellant caused loss to the respondents.  The respondents could have purchased 500 sq.yards of house sites at Dhamasalapuram/Khanapur Haveli.  The prices of the house sites in those areas were very low compared to the existing prices.  Hence, the respondent sought direction to the appellant to assess the loss sustained by him and to refund the amount of Rs.10,435/-

          The appellant has filed para-wise remarks which was treated as counter by the District Forum.  It was stated that the demand survey notification issued by the appellant is only an announcement of its proposal to take up a housing scheme at a particular town and not an announcement that the scheme will be definitely taken up.  The A.P.Housing Board had right to decide whether to take up the scheme or drop the proposal to take up the scheme based on the response received.  Only after ascertaining that there is sufficient demand, the APHB can take up the housing scheme and then starts the exercise of acquiring the required land by sending for land acquisition proposal to the government.  After land was acquired the APHB begins the construction after obtaining sanctioned lay out and building the permissions and development of the land etc. 

The APHB can drop the scheme if the cost of the land  is too high and the scheme is not viable as the APHB cannot be able to construct the proposed houses at reasonable cost.  At Khammam, the APHB could not acquire the land for taking up the housing scheme due to severe opposition and legal obstacles from the land owners. 

Most of the applicants had taken back their registration fees and other deposits.  The respondent and some others have not opted for taking back the amount deposited by them, even after request made on 23.2.2001 and 1.5.2004 by way of notification in news papers.  It was informed to the respondent and others that on their failure to take back the amount, on or before 30.6.2004 the amount will be forfeited to the APHB and no further correspondence would be entertained.  The respondent demanded for allotment of a house merely because he had submitted application in the year 1979 along with registration fees of Rs.1,000/- and paid Rs.10,439/- later on towards 10% estimated cost of proposed house cannot be entertained.  The respondent was only entitled for refund of the registration fee and other deposited amount with interest.  The Hon’ble National Commission in Ghaziabad Development Authority Vs Vinod Kumar Bansal reported in 1995(1) CPR 241 (NC) held that a person who applies for allotment along with EMD is not a consumer.  The EMD is not in the nature of a consideration and is only in the nature of earnest money.  Only after allotment he will become a consumer.

          Based on the pleadings and affidavits the District Forum allowed the complaint directing the appellant to refund deposited amount of Rs.1,000/- together with interest @ 18% per annum from 23.6.1979 and Rs.10,435/- together with interest @ 18% per annum from 23.11.1991 till payment and Rs.1,000/- towards costs.

          Aggrieved by the said order the opposite party/appellant preferred this appeal on the grounds that the appellant has sought to canvas was that the complaint was not maintainable, the respondent is not a consumer and that the District Forum failed to consider the terms of notification and the fact non-joinder of necessary parties.

          The point for consideration is whether the impugned order is liable to be set aside?

           The appellant issued notification inviting applications for allotment of house at Khammam and the respondent applying for a hosue thereof are not in dispute.  It is also not in dispute that the appellant had issued notification for the purpose of acquisition of land for consideration of house therein.  Further, the other undisputed facts are that the appellant cancelled notification in view of high demand and litigation from the land owners whose land was proposed to be acquired by the appellant for the purpose of construction of house to be allotted to the respondent and others who applied therefor.  The respondent had not disputed the issue of notification on 23.2.2001 and 1.5.2004 informing the applicants to take up their amounts on or before 30.6.2004 and it was further informed to them that on failure of the applicants to receive back the deposited amount, the same would be forfeited to the APHB.

          The appellant having cancelled the notification for allotment of the house to the applicants who applied therefor by paying the registration fee and the amount of Rs.10,435/- both the amounts together constitute 10% of the cost of the proposed MIG house to be constructed and allotted to the respondent.  The appellant had not sent any personal notice to the respondent or to the other applicants.  The applicant also not placed on record how and when some of the other applicants had received back their amounts from the respondent without having been informed by a personal notice.    However, the fact remains that no personal notice was served on the respondent informing him the cancellation of the notification and requesting him to receive back his amount.  In the absence of such personal notice, the appellant/housing board cannot expected the respondent and the other applicants to go through the notification in news paper and approach the appellant for receiving back their amounts.  The District Forum has rightly concluded that the appellant was at fault in not paying back the amounts deposited by the respondent.

          It was sought that the respondent was not a consumer having not been allotted any plot or house and a decision of the Hon’ble National Commission reported in Ghaziabad Development Authority Vs Vinod Kumar Bansal reported in 1995(1) CPR 241 (NC) was cited.  This decision was rendered as long back as in the year 1994.  Subsequently there are several judgments rendered by the National Commission and Supreme Court on this aspect holding that the applicant who applied for allotment of a house is a consumer within the meaning of Sec.2(1)(d) of C.P.Act.  Therefore the decision relied upon by the appellant is of no use to their case.

          The Hon’ble Supreme Court in TAMIL NADU HOUSING BOARD & Ors. Vs SEA SHORE APARTMENTS OWNERS WELFARE ASSOCIATION reported in 2008 AIR 1151, 2008(3 ) SCC21 held as follows:

When private undertakings are taken over by the government or corporations are created to discharge what is otherwise State's function, one of the inherent objectives of such social welfare measures is to provide better, efficient and the cheaper services to the people. Any attempt, therefore, to exclude services offered by statutory or official bodies to the common man would be against the provisions of the Act and spirit behind it. It is indeed unfortunate that since enforcement of the Act there is a demand and even political pressure is built up to exclude one or the other class from operation of the Act. How ironical it is that official or semi-official bodies which insist on numerous benefits, which are otherwise available in private sector, succeed in bargaining for it on threat of strike mainly because of larger income accruing due to rise in number of consumers and not due to better and efficient functioning claim exclusion when it comes to accountability from operation of the Act. The spirit of consumerism is so feeble and dormant that no association, public or private spirited, raises any finger on regular hike in prices not because it is necessary but either because it has not been done for sometime or because the operational cost has gone up irrespective of the efficiency without any regard to its impact on the common man. In our opinion, the entire argument found on being statutory does not appear to have any substance. A government or semi-government body or a local authority is as much amenable to the Act as any other private body rendering similar service. Truly speaking it would be a service to the society if such bodies instead of claiming exclusion subject themselves to the Act and let their acts and omissions scrutinized as public accountability is necessary for healthy growth of society.

          In the circumstances and for the reasons mentioned above, we are of the opinion that the order passed by the District forum does not require any interference and deserves to be upheld.

          In the result the appeal is dismissed confirming the order of the District Forum, Khammam. No costs.

                                                                             PRESIDING MEMBER

                                                                                      MEMBER
                                                                                  Dt.08.06.2009