BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri K.V.H. Prasad, B.A., LL.B., President
Smt C.Preethi, M.A., LL.B., Member
Sri R.Ramachandra Reddy, B. Com., LL.B., Member
Monday the 23rd day of January, 2006.
C.D.No. 73/2004
M. John Wilson,
S/o M.D. Vara Prasada Rao,
Aged 30 years, Hindu,
H.No.MIG/II-70, APHB Colony,
Abbas Nagar, Kurnool. . . . Complainant
-Vs-
1.A.P. Housing Board,
Rep. by its Vice Chairman-cum-
Housing Commissioner,
R/o Gruhakalpa, Mukaramjahi Road,
Hyderabad.
2.The Executive Engineer,
A.P. Housing Board (H),
Kurnool Division,
Abbas Nagar, Kurnool. . . . Opposite parties
This complaint coming on 17.1.2006 for arguments in the presence of Sri A.Ramasubba Reddy, Advocate, Kurnool for complainant and Sri P.Siva Sudarshan, Advocate, Kurnool for opposite parties No.1 and 2, and stood over for consideration, till this day, the Forum made the following.
O R D E R
( As Per Sri.K.V.H.Prasad, Hon ble President)
1. This CD case of the complainant is filed under Section 12 of C.P. Act seeking direction on the opposite parties. (1) To revise the final cost of the house bearing No.70 MIG-II from Rs.540/- per Sq. yard to Rs.100/- per Sq. yard (2) To refund the balance of contingent charges after taking the actual incurred expenditure on contingent works. (3) Not to demand from complainant water tap deposit of Rs.10,500/- (4) To pay interest on tentative cost of Rs.4,00,000/- from 25-5-2002 to 30-4-2004. (5) The Execute Registered sale deed under regulation No. 27 in due consideration of the complainants above prayers without insisting for excess amount after adjusting the tentative cost from the final cost pay the balance of the credit of complainant with interest at 18percent per annum (7) To prohibit the opposite parties from interfering with allotment and enjoyment of the house. (8) To pay costs of this case and to award such other reliefs with the circumstances of the case demand.
2. The case of the complainant in brief is as under:-
The opposite parties who were constituted to provide housing accommodation to needy on no loss no profit basis, gave an advertisement in Eenadu news paper dated 2-8-2001 inviting applications for allotment of HIG-I, HIG-II and MIG-II category houses to be constructed under Phase-IV at Abbas Nagar, Kurnool and in pursuance there of and on application of complainant under out right sale category, house No.70 MIG-II was allotted to the complainant vide allotment letter dated 22-4-2002 and the complainant paid Rs.4,00,000/- as tentative price fixed by the Costing and Project Management Committee under regulation No.23 of A.P. Housing Board (Allotment, Management and Sale of HIG,MIG,LIG and EWS) regulations 1997. While the construction is required to be completed within 9 months and there on the final cost fixed by the opposite party is to be intimated to the complainant but it was not done as such as construction of house was completed with water facility only by 30-4-2004 and was delivered to the complainant on 1-5-2004 fixing final cost at Rs.3,41,200/- showing the balance to be refunded to the complainant as Rs.58,800/- only. As the opposite parties violated regulations and established practices in completion of construction work as per approved design and in making ready for occupation and in fixing the final cost, the opposite parties are to refund Rs.2,00,064/- not Rs.58,800/-. The opposite parties did not respond to the legal notice of complainant wherein the irregularities in fixing the final cost of allotted house was highlighted and on the other hand the opposite parties are preparing to cancel the allotment of the house to the complainant though more than the amount required to meet the final costs fixed by the opposite parties is available with them to the credit of the complainant and the said conduct is amounting to deficiency of service.
3. The opposite parties who caused their appearance in pursuance of receipt of the notice of this case, filed the written version denying any of their deficiency of service and questioning the justness in the case of the complainant and its maintainability alleging firstly the dispute as to the fixation of the price of the house shall not fall under “Consumer Disputes”, secondly the pricing policy cannot be challenged after the allottee has taken position of said allotted house, thirdly the illegal recovery of any amount by Housing Board from the allotees has to be challenged only in Civil Court and not in Consumer Dispute Redressal Forum, fourthly the case of the complainant is bad for want of statuary notice of two months under Section 68 of A.P. Housing Board Act as the proceedings before the Forum falls under terms “suit” as per the decision of Supreme Court in Patel Road Ways Ltd., V/s Birla Yamaha Ltd., reported in I (2000) CPJ-12, fifthly as per the agreement entered and the cost notified in notification No.8/01 dated 2-8-2001 as to the house proposed for construction under Phase-IV at Abbas Nagar, Kurnool was tentative cost and the amount paid by the complainant for the allotted house No.70 MIG-II being of 100percent category under which the complainant is liable for the entire cost of Rs.3,41,200/-, sixthly there is no stipulation as to any completion of the house within 9 months from 14-2-2002 and there by for want of any bonofidies of the complaint averments to that effect especially when the contract with the contractor for completion of work was one year with a provision for time extension and the completion of construction work by 15-4-2003 itself and the said duration even was not due to any latches on the part of the opposite party but on account of additions the allottee got to the allotted houses though contractor with the permission of the housing board, giving their under taking and responsibility arising there on , seventhly the possession of the house by the complainant is illegal being not given by the opposite parties but by the complainant himself suo. moto without executing required agreement, the default of which forfeits the amount paid by the allottee in favour of A.P. Housing Board, eighthly the final cost of Rs.3,41,200/- fixed after working out permissible rebates and less than the tentative cost of Rs.4,00,000/- and so offered to refund of excess amount of Rs.58,800/-, ninthly claim of complainant for Rs.58,800/- without admiting the final cost of Rs.3,41,200/- is not justifiable, tenthly the final cost being fixed by the Costing and Project Management Committee strictly as per the provisions of regulation No.23 is not questionable before the Forum, eleventhly the complainant cannot question the land cost which was arrived under regulation No.23 (1) taking into consideration it is development and basic value register of Sub Registrar, twelthly the electricity and water connection are not covered under obligation of A.P. Housing Board being covered under any terms and conditions of agreement and as such they have to be fetched by allotees themselves and so the opposite parties cannot be found fault with any deficiency on said ground, thirteenthly the execution of agreement by the allotee in favour of opposite party is mandatory and the allotee has not right to avoid it and press the opposite parties directly to execute a conveyance deed, fourteenthly alleges want of bonofidies to the cause of action of complainant when the final cost is less than very tentative cost and lastly allege the relief sought by the complainant are out of the scope contemplated under Section 14(1) of Consumer Protection Act and so seeks dismissal of the complainant with costs.
4. In substantiation of the contentions while the complainant side has relied upon documentary record in Ex.A1 to A5 and sworn affidavit of the complainant and its third party and replies of the opposite party No.1 to the interrogatories caused by it, the opposite party has made its reliance on documentary record marked in Ex.B1 to B4 and sworn affidavit of opposite party No.2 and reply of the complainant s side for its interrogatories.
5. On 26-9-2005 the complainant filed a memo giving up the claims 2 to 4 and restricting its claim to other reliefs only hence the appreciation is limited to the reliefs which were not given up.
6. The first relief sought by the complainant is a direction to the opposite party to revise final cost fixed to the house allotted to him by reducing the land value of Rs.540/- per sq. yard to Rs.100/- per sq. yard.
7. Apart from the fact of the opposite parties pleadings justifying the said land costs as was fixed taking into consideration several factors such as basic value register of Registration Department and in accordance with the regulations governing the A.P. Housing Board and the terms and conditions binding the allottee, the question remains vital for consideration, “In the light of opposite parties challenging the entertainability of such question by this Forum”, is whether the fixation of final cost could be challenged in the proceedings before the Consumer Forum.
8. The privy of the complainant as allottee of the house being not disputed by the opposite parties, the documentary record of correspondence exchanged between the complainant and opposite parties and the material governing the said construction of the house does not require any further appreciation than what they speak especially for deciding the question as to the entertainability of the matters, disputing the fixation of final cost, by the Forum.
9. The fixing of final price of House/Flat/Plot does not fall under jurisdiction of Forum and such a complaint is not maintainable in Fora as per the decision of the Hon ble Tamil Nadu State Consumer Disputes and Redressal Commission Chennai as held in the case of Executive Engineer and Administrative Officer, Madras Housing unit, Tamil Nadu Housing Board V/s S.Arivukkodi reported in III (2004) CPJ page 374, by and the Hon ble National Commission on 17th September 1996 in RP.No.1084/95 in between Executive Engineer and Administrative Officer, Tamil Nadu Housing Board, Tatabad Coimbatoor V/s Nirmala Patrick, by the Hon ble National Consumer Disputes and Redressal Commission in Commissioner Gujarat Housing Board and another V/s Thekkar Somalal reported in 1998 NCJ 633 and, in Gujarath Housing Board V/s Datania Amithalal Fulchand and other reported in III 1993 CPJ page 351 (NC)and, in Gurinder Bedi V/s Delhi Development Authority reported in III (1993) CPJ 404 (NC)and, in Housing Board Haryana V/s Karthar Sing etc., of Hisser reported in I (1995) CPJ page 7 (NC)and, in Manoharlal Sarma V/s Delhi Development Authority and another reported in I (1994) CPJ page 22 (NC)and, in Delhi Development Authority V/s AN Saignal reported in I (1996) CPJ page 34 (NC), in VK Nayar V/s Ghajiabad Development Authority reported in III (2003) CPJ 130 (NC), and Delhi State Consumer Disputes and Reddresal Commission New Delhi in Smt. Abha Ballani V/s Delhi Development Authority in I (2003) CPJ 30 (NC).
10. The Hon ble National Consumer Dispute Redressal Commission, New Delhi in Defense colony Sahakari Avas Samithi Ltd., V/s Ghajiyabad Development Authority reported in III (1997) CPK-46 (NC) holds the dispute as to the fixation of price cannot be gone into by Fora.
11. The Hon ble National Consumer Dispute Redressal Commission, New Delhi, in National Consumer Awareness Group (Regd.) Chandigarh V/s The Housing Commissioner, Punjab Housing Development Board, Chandigarh reported in (1997) (3) CPR-36 (NC) holds the complaint as to enhancing of price of plot by the Housing Board cannot be interfered when there is no statutory control over fixation of price by the Board and the pricing of flats built by the housing authority or plots developed by the authorities is not a Consumer Dispute.
12. The Hon ble Delhi State Consumer Dispute Redressal Commission, New Delhi in Murari Lal Sharma V/s Delhi Development Authority reported in II (2003) CPJ-411 holds that Fora has no jurisdiction to go into the question of pricing of flat.
13. The Hon ble Karnataka State Consumer Dispute Redressal Commission, Bangalore, in S.Srinivasa Murthy V/s Karnataka Housing Board reported in II (2003) CPJ 190 holds the cost of escalation of allotted flat cannot be gone into by Forum.
14. The Hon ble A.P. High Court in dealing with the A.P. Housing Board (Allotment, Management and sale of MIG Houses) regulations 1975 made under Section 71 of A.P. Housing Board Act 1956 and regulation in the decision rendered in M.V.B. Sarma and Others V/s A.P. Housing Board reported in 2001 (1) ALT -228 holds that the allotees are bound to pay the escalated and revised cost as per terms and conditions of agreement, voluntarily entered into by them at the time of allotment of houses.
15. The Hon ble A.P. High Court in unreported decision in Kurnool Housing Board Colony, Resident Welfare Association, Kurnool III Phase represented by its Secretary G.Venkanna V/s the A.P. Housing Board represented by its Vice Chairman and Managing Director, M.G.Road, Hyderabad, Regional Engineer House, A.P. Housing Board, Kurnool and the Executive Engineer (Housing) A.P. Housing Board, Kurnool in writ petition No.7170 of 1996 also holds that the allotees are bound to pay the increased cost as per A.P. LIGH regulations, A.P. Housing Board Act and lease cum sale agreement.
16. In the light of the above cited decisions as there is similes in between cited decisions and the facts of the present case, the complainant allottee is bound to bear the revised cost especially when the pricing aspect cannot be gone into by the Foras.
17. As per the decision of Hon ble Orrissa State Consumer Disputes and Redressal Commission at Cuttack in Sri Kumari Ranjan Datta V/s the Orrissa Housing Board reported in VIII -1992 Consumer Protection reporter page 206 the house is not “Goods” and the complainant is not consumer in respect of the purchase of the house, and failure to register sale dead on the ground of non payment of part of consideration is not a defect in goods and the complainant in such a complaint is not a consumer and non registration of sale dead on account of demand of higher price is only grievances and it does not amount to deficiency in service.
18. The Hon ble National Commission in Housing Board Haryana V/s Kartar Sing Etc. of Hissar reported in I (1995) CPJ page 7 (NC) holds that if any amount has been illegally charged by housing board, the proper forum for the complainant is to recover it from housing board through civil court. Hence for the balance of amount remaining with opposite party on adjustment of final cost, the complainant has to make approach to Civil Court if it is not refunded by opposite party.
19. The decision of the Hon ble Calcutta High Court rendered in Smt. Mandira Mukarji V/s District Consumer Disputes Redressal Forum reported in 2005 (3) APLJ page 33 (CC) holding the non execution and non registration of agreement as to sale of immoval property is deficiency of service enforceable by the District Consumer Forum, does not appear to be relevant to the facts of our present case as the agreement for sale of immoval property covered there under was one which could be executable under specific relief act and when no part performance is due on the part of the person seeking said relief and in the present case the dispute being as to the fixation of final cost arrived and, demanding for effecting registration and the complainant s seeking for registration of the house questioning the said final cost arrived and demanded, which cannot gone through by this Forum as per the catena of decision cited above and then by it is remaining as a matter to be agitated before a civil court.
20. The complainant alleges that the opposite parties are not justified in enhancing the cost of the land from Rs.100/- per Sq.yards to Rs.540/- per Sq.yards The Hon ble Rajastan State Consumer Disputes Redressal Commission at Jaipur in the secretary Rajastan Housing Board and other V/s Prem Chand reported in 1994 (3) CPR page 670 – in a case where the rate of land earlier fixed was Rs.182/- per sq. meter and in the allotment letter it was demanded at Rs.260/- per Sq. meter - did not upheld the order of the District Forum directing the Housing Board to realise the former rate of 182 per sq. meter only as such a relief is not envisaged by Section 14(1) of Consumer Protection Act 1986 and such a direction is a relief not envisaged by Section 14(1) of Consumer Protection Act 1986 cannot be granted. Hence the complainant herein also is not remaining entitled to said relief as to reduction of the rate as to excess area.
21. As per the discussions made under supara paras the vital question as to the dispute of pricing cannot be gone into by this Forum the other reliefs which are dependent upon this pricing issue, cannot be held in favour of the complainant. Therefore, in conclusion of the above discussion as the grievances of the complainant from its nature as is not covered under the perview of the Consumer Protection Act to give any relief, there appears any a Consumer Dispute which can be adjudicated by this District Forum. Consequently there being any jurisdiction to this Forum for adjudication of dispute complained by the complainant, this complaint is dismissed.
Dictated to the stenographer, transcribed by him, corrected and pronounced in the Open Court this the 23rd day of January, 2006.
PRESIDENT
MEMBER MEMBER
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant: Nil For the opposite parties: Nil
Exhibits Marked for the complainant:
Ex.A1 Notice issued by opposite party No.2, Dt.27-4-2004 calling up on
complainant to enter into agreement.
Ex.A2 Attested copy of letter, Dt.12-4-2002 of A.P. Housing Board, Hyderabad
Lr.No.1028/Ab.Nagar Ph-IV/CE/AE3/2002/538.
Ex.A3 Attested copy of letter, Dt.22-6-2004 from A.P. Housing Board to
opposite party No.1.
Ex.A4 Legal notice issued by complainant s counsel to opposite party No.2.
Ex.A5 The reply notice, Dt.4-6-2004 to Ex.A4.
Exhibits Marked for the opposite parties:
Ex.B1 The Original copy of allotment letter dated 18-2-2002.
Ex.B2 The attested copy of final approval details, Dt.30-1-2004.
Ex.B3 Attested copy of final approval details NF No.Ab.Nagar /Ph-
IV /CE /AE3/2001.
Ex.B4 Attested copy of Eenadu daily news paper dated 2-8-2001.
PRESIDENT
MEMBER MEMBER
Copy to:-
1. Sri. A.Ramasubba Reddy, Advocate, Kurnool
2. Sri. P.Siva Sudarshan, Advocate, Kurnool
Copy was made ready on:
Copy was dispatched on:
Copy was delivered to parties on:
