Kerala

StateCommission

A/16/114

THE SECRETARY KERALA STATE HOUSING BOARD - Complainant(s)

Versus

P A ASHARAF - Opp.Party(s)

S SHANAVAS

30 Mar 2017

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUIVHARLANE VAZHUTHACADU THIRUVANANTHAPURAM

 

APPEAL NO.114/16

JUDGMENT DATED : 28.03.2017

 

(Appeal filed against the order in CC.No.127/2013 on the file of CDRF, Kasaragod order dated : 25.11.2015)

PRESENT

 

SRI.K.CHANDRADAS NADAR   : JUDICIAL MEMBER

SRI.V.V.JOSE                          : MEMBER

 

APPELLANTS

1. The Kerala State Housing Board

Rep.by its Secretary,

Thiruvananthapuram

 

2. The Administrative Officer,

Kerala State Housing Board,

Chakikorathukulam, Kozhikkode

 

3. The Executive Engineer,

KSHB, Kasaragod Division,

Chengala.P.O Kasaragod

 

(By Adv.Sri.S.Shanavas)

Vs

RESPONDENT

P.A.Asharaf Ali,

S/o.P.A.Abbas,

E F 8 (a) 105, Muttathodi Housing Colony,

Muttathodi village and Post

Kasaragod Taluk

 

(By Adv.C.Mohanan)

JUDGMENT

SRI.K.CHANDRADAS NADAR   : JUDICIAL MEMBER

                Opposite parties in CC.No.127/2013 in the CDRF, Kasargodu are the appellants. The appellant / Housing Board constructed three types of flats as part of Muttathodi Housing Accommodation Scheme at Vidhya Nagar. The construction was completed in 1991-92 and as per application of the complainant provisional allotment of Flat No.EF 8 (a) 105 was made. It is alleged in the complaint that as per the allotment letter the complainant was directed to deposit Rs.96,400/-. The balance amount payable was to be remitted in 162 instalments of Rs.2420/- each with interest at the rate of 15.5% per annum on the outstanding amount. The complainant / respondent in this appeal received notice dated 06.11.1999 stating that he had to pay additional amount which was the difference in cost assessed by the appellants. Though the complainant / respondent informed that he was not bound to pay additional cost, the appellants were not agreeable. Alleging that there was no proceeding under the Land Acquisition Act for enhancement of compensation in any court relating to the acquisition in question and no developmental work of any kind was carried out by the appellants, the complainant maintained that the appellants were not entitled to refix the final cost of construction under clause 9 of the agreement between parties. Hence the complainant approached the consumer forum.

        2.     The opposite parties contended before the consumer forum that as per clause 9 of the agreement between the parties the appellants were entitled to refix the final price of the apartment, taking into account, the cost of developmental works and amenities under taken with respect to the scheme after final settlement of accounts. It is admitted that there was no land acquisition cases relating to this acquisition. The difference in cost according to the appellants is purely the balance of actual cost of the flat finally fixed based on the actual expenditure incurred by the Board and the same is the difference between the tentative cost and final cost. As per clause 10 of the agreement the Housing Board is entitled to claim this amount. The Board has calculated the tentative cost after taking into consideration approximate expenditure incurred for the construction of flats and minor developmental works executed before allotment. Rs.1,85,829/- demanded as per notice dated 27.11.2012 is the difference in cost based on the actual expenditure and only 7% interest was demanded. The appellants maintained that there was no deficiency in service on their part.

        3.     Before the consumer forum the complainant deposed as PW1. Exts.A1 to A4 were marked on his side. One witness was examined on the side of the opposite parties and Exts.B1 to B4 were marked. The consumer forum finding that there was no land acquisition case pertaining to the acquisition in question held that the appellants were not entitled to demand additional sum as per notice dated 27.11.2012. Hence ordered cancellation of the said notice and directed the appellants to pay compensation of Rs.10,000/- and cost Rs.5000/-.The opposite parties are challenging the order of the consumer forum.

        4.     Flat No.EF (a) 105 construction of which was completed was allotted to the complainant as per Ext.B3 agreement entered into between the parties on 04.05.93.  As per Clause 4 of the agreement the cost of land and price of the flat constructed upon the property were tentatively fixed at Rs.2,53,050/-. From the said amount Rs.96,400/- was demanded as initial deposit and balance amount was payable in 162 equal instalments. The dispute arose when the appellants demanded Rs.1,85.829/- as per Ext.A2 demand notice after refixing the final cost of construction of the flat. The learned counsel for the appellants pointed out that the instalments were spread over a period of 13 ½ years and the final price of the flat was refixed within that period and demand was made. Clause 9 of Ext.B3 agreement perfectly authorises the appellants to do so. The argument taken for the complainant is that Clause 9 authorised the appellants to make final settlement of accounts only when the acquisition cost is enhanced by appropriate authority and the appellants have under taken developmental works and provided additional amenities. It is admitted that no land acquisition proceedings were initiated in relation to the acquisition in question. The learned counsel for the appellants pointed out the in the present case only finalisation of the price of land and apartment and service charges was made by the Housing Board in terms of Clause 10 of the agreement. The difference in price between the tentative price fixed and the final price fixed alone was demanded from the opposite party, that too with interest at the rate of 7% per annum as against 16.5% interest permitted as per Clause 10 itself.

        5. The appellants relied on Ext.B4 cost finalisation statement in order to support their contention. As per Ext.B4 the cost is seen finalised with reference to land value as on 30.04.1992, development cost of land and cost of construction of the particular type of flat as on 30.04.92. Uniform amount is seen demanded from a particular type of flat owners. So it is quite obvious that the demand was made under Clause 10 of Ext.B3 agreement between the parties. So it is immaterial whether there was proceedings for enhancement of compensation in relation to the land acquisition proceedings.

        6. The fact also remains that the service availed by the complainant was purchase of flat construction of which was completed. Only tentative price was fixed at the time of purchase. The price constitutes the consideration for the service availed. As per the agreement itself complainant agreed that the consideration may be refixed when cost is finalised. That alone was done by the appellants. There is little scope for deficiency in service in the matter of refixation of the sale price as a consumer forum cannot act as the appellate authority over such actions of the Housing Board.  So obviously no deficiency in service on the part of the appellants was established in evidence. Hence the consumer forum erred in allowing the complaint. Therefore, the appeal is liable to be allowed.

        In the result, the appeal is allowed. The order of CDRF, Kasargodu in CC.No.127/2013 dated 25.11.2015 is set aside. The complaint shall stand dismissed. The parties are directed to bear their respective costs in this appeal.

K.CHANDRADAS NADAR : JUDICIAL MEMBER

 

 

V.V.JOSE                         : MEMBER

Be/

 

 

 

 

 

 

 

 

 

KERALA STATE

CONSUMER DISPUTES

 REDRESSAL COMMISSION

SISUIVHARLANE

VAZHUTHACADU

THIRUVANANTHAPURAM

 

APPEAL NO.114/16

JUDGMENT DATED : 28.03.2016

 

 

                                                                             BE/