BEFORE THE DISTRICT FORUM (UNDER CONSUMER PROTECTION ACT, 1986) SANGAREDDY, MEDAK DISTRICT.
Present: Sri P.V.Subrahmanayma, B.A.B.L., PRESIDENT
Smt U.Sunita, M.A., Lady Member
Sri Mekala Narsimha Reddy, M.A.,LL.B.,
P.G.D.C.P.L. Male Member
Thursday, the 18th day of June, 2009
CC.No. 38 of 2008
Between:
Smt. Bharathi Bai W/o K. Nagendar,
Aged about: 48 years, Occ: House hold,
R/o H.No. 8-140 (Old), 3-2-165 (New),
Netajinagar, Upparbazar, Sangareddy,
Medak District. … Complainants
And
The Executive Engineer,
A.P. Housing Board, Western Division,
(Nizamabad Division), Kukatpally,
Hyderabad. ...Opposite party
This case came up for final hearing before us on 08.06.2009 in the presence of Sri. J. Ram Reddy, advocate for complainant and Sri. Anantha Rao Kulkarni, advocate for the opposite party, upon hearing arguments of both sides, on perusing the record and having stood over for consideration till this day, this forum delivered the following:
O R D E R
(Per Sri. P.V. Subrahmanyam, President)
This complaint is filed Under Section 12 of Consumer Protection Act, 1986 for a direction to the opposite party to transfer the house allotted to her in her name, after receiving the balance amount, if any.
The averments in the complaint in brief are as follows:
1. The opposite party published a notification calling for applications for allotment of residential house in phase – I of Pothireddypally Village, Sangareddy Mandal under Scheduled caste quota. In pursuance of the same the complainant made an application on 13.11.1980 with the required fee of Rs.200/- together with income certificate, age certificate and caste certificate. There after the complainant received a demand notice dt. 01.11.1988 from the opposite party for payment of Rs.2,800/- being 10% of the estimated cost. Accordingly the complainant paid the said amount by way of demand draft dt. 12.11.1988. There after the complainant received a letter from the opposite party informing allotment of house in her favour. Subsequently the complainant paid the following amounts on demand from the opposite party
04.03.1989 - Rs. 1800/-
09.04.1990 - Rs. 4,800/- being the 10% cost
08.11.1991 - Rs. 4,800/-
2. The complainant received a letter from the opposite party informing her that she was selected for allotment of the house. She received another letter dt. 14.07.1992 informing handing over of house in her favour. There after the complainant has not received any notice or intimation from the opposite party to pay any further amount except a letter dt. 30.08.1997 demanding her to pay water charges. As there was no water connection to the house allotted to her, she did not pay water charges as demanded. There after the complainant has not received any letter or intimation with regard to estimation of total cost of the house and adjustment of amounts already paid. The complainant was under the impression that the opposite party will send calculation statements along with total cost of the house. But she did not receive any such intimation.
3. On 03.02.2008 the complainant visited the house allotted to her and found, to her surprise, some unauthorized persons staying in the house who told her that they are the allottees. The opposite party never sent any letter or intimation to the complainant about the cancellation of allotment in her favour and fresh allotment to others. The alleged allotment of the house in favour of others is illegal, improper and not binding on the complainant. Having collected initial amounts from the complainant towards cost of the house, it is the duty of the opposite party to intimate payments if any payable by her towards cost of the house or for registration. As the opposite party has failed to intimate and resorted to allot the house in favour of others, the acts amounts to deficiency in service.
4. Having vexed with the attitude of the opposite party the complainant got a notice U/s 80 Code of Civil Procedure issued on 18.03.2008 to the opposite party. On receipt of the said notice the opposite party should have intimated the complainant about the allotment and cancellation if any. Hence the complaint.
5. The opposite party resisted the complaint by filing a counter to the following effect:
It is true that the opposite party published notification and the complainant made an application with required fee of Rs. 200/- and later, on demand, paid Rs.2,800/- towards 10% cost of the house and also paid Rs.1,800/- and 3rd 10% cost. Later she was informed handing over of the house to her. But it is denied that she did not receive any notice or intimation to pay further amounts. It is also denied that she received letter dt. 30.08.1997 only for payment of water charges and not received any other letters or intimations with regard to estimation of total cost for the house and adjustment of the amounts already paid and to pay further amounts. It is also denied that on 03.02.2008 the complainant visited the house allotted to her and found some unauthorized persons their in.
6. The board has already allotted the said house in favour of Smt. M. Bharathi under first come first served basis vide letter dt.31.12.1999. She executed lease cum sale agreement on 24.01.2000 and took physical possession of the house on the very same date itself and paid entire cost of the house on 20.04.2007.
7. In fact the complainant has executed lease cum sale agreement on 14.07.1992 and possession letters were issued to her on that date itself and she acknowledged the same on 15.07.1992 but she has not turned up to take physical possession of the house. Subsequently the opposite party issued a letter fixing quarterly installments and the same was acknowledged by the complainant on 22.12.1997 but she did not respond to the notices as per the above letter of the housing board to pay installments. As the complainant has not taken over physical possession of the house and not paid the amount due to APHB, the APHB has issued a letter dt. 01.10.1988 to pay Rs. 2,800/- towards 10% cost of the house and the complainant paid the same to the then executive engineer (Housing) , Nizamabad Division, who has issued a letter dt.25.09.1989 intimating tentative cost of the house as Rs. 48,000/- and requested to pay balance 10% cost of Rs.1800/- on or before 04.03.1989 but the complainant paid the said amount on 05.04.1989. As the complainant failed to take physical possession inspite of intimation and failed to pay the amount due, the APHB issued a paper notification in Eenadu and Vaartha News papers on 14.02.1998 and 15.02.1998 respectively clearly indicating there in to pay the due amounts and take over physical possession of the house within 15 days failing which the allotment will be cancelled without giving any notice, forfeiting the amounts paid by the allottee. There is no response from the complainant for the said paper publications, therefore after expiry of the fifteen days period the LIG house No. 171, Phase – I, site –I at PR Pally was allotted to Smt M. Bharathi on 31.12.1999 at the tentative cost of Rs.77,500/- and she paid 40% down payment of Rs.31,000/- and executed lease cum sale agreement on 24.01.2000 and took physical possession of the house on that day itself and later paid entire cost of the house on 20.04.2007 and therefore the said house was registered in her favour vide sale deed NO.2203/2008,dt.13.03.2008.
8. Inspite of information received on 15.07.1992 to take over physical possession of the house the complainant has not taken steps for more than 19 years, but all of a sudden, as the rates are now high and having good value in the market, the complainant now agitating, by stating several things which are not correct. She has not approached the board from the year 1992 onwards and she has not paid the amounts due as per intimation. There was no response even for paper publication in the year 1998. The opposite party served a letter to the divisional electrical engineer to give service connection and another letter to executive engineer, Hyderabad water works division for water supply to the said house. Copies of all the said letters were received by the complainant on 15.07.1992 but she has not completed the formalities and failed to take steps as she did not have interest.
9. After lapse of 20 years the complainant issued a legal notice on 18.03.2008 to receive the balance amount if any and to transfer the house in her name which was already allotted to another who paid the entire amount and obtained registered sale deed on 13.03.2008, prior to the legal notice of the complainant. There is negligence of part of the complainant. She did not avail ample opportunity given by the opposite party. The present occupant of the house is not in unauthorized occupation. The complaint is not maintainable. The complainant is not entitled to any relief. There is no deficiency in service on the part of the opposite party. The complaint is barred by the limitation. The complaint may therefore be dismissed with costs.
10. Evidence affidavits of both parties filed and Exs.A1 to A12 are marked on behalf of the complainant and Exs. B1 to B13 are marked on behalf of the opposite party. Written arguments of both parties filed. Oral arguments of both sides heard. Perused the record.
11. Point for consideration is whether the complainant is entitled to transfer of house in her name as prayed for?
Point:
The case of the complainant is that on 13.11.1980 she applied for allotment of a residential house to her in pursuance of a notification published by the opposite party and on 12.11.1988 she paid Rs.2800/- by way of demand draft on receipt of a demand notice dt. 01.11.1988 and there after she received a letter from the opposite party that a house was allotted in her favour. Subsequently she paid Rs.1800/-, Rs.4800/- and another sum of Rs.4800/- on 04.03.1989, 09.04.1990 and 08.11.1991 respectively on demand. It is the further case of the complainant that she received a letter to the effect that she was selected for allotment of the house and another letter dt.14.07.1992 for handing over of the house in her favour. There after on 30.08.1997 she received a demand notice for payment of water charges but she did not pay because there was no water connection to the house. There after she has not received any communication, but on 03.02.2008 she found some unauthorized persons in occupation of the house, which was allotted to her.
12. The opposite party admitted almost all the facts stated by the complainant including various payments made by her. But according to the opposite party after executing lease cum sale agreement on 14.07.1992 and after the receipt of possession letters on 15.07.1992 the complainant has not turned up to take physical possession of the house. For the letter of the opposite party fixing quarterly installments which was acknowledged by the complainant on 22.12.1997 there is no response. As the complainant has not taken physical possession and failed to pay the amounts due, the opposite party issued paper publications in Eenadu and Vaartha Telugu Daily News papers on 14.02.1998 and 15.02.1998 respectively to pay the due amounts and to take physical possession of the house within 15 days failing which the allotment will be cancelled and the amounts paid by the complainant will be forfeited. It is the further case of the opposite party that as there was no response from the complainant even for this paper publications within the stipulated period of 15 days, the allotment in favour of the complainant was cancelled and the LIG House No. 171, Phase- I, site –I at PR Pally was allotted to Smt. M. Bharathi on 31.12.1999 and she executed sale agreement on 24.01.2000 and took physical possession and there after paid the entire cost of the house on 20.04.2007.
13. Crux of the case lies in the paper publications and cancellation of allotment of the complainant. Xerox copies of paper publications are marked on behalf of the opposite party as Exs. B5 and B6. They contain notification dt. 31.01.1998 of the opposite party. Admittedly the house allotted to the complainant is LIG -171 in,site –I, Phase-I at PR pally. Ex.B5 does not show cancellation of LIG-171. There are only numbers of 16 houses under one head and 18 houses under another head of LIG site –I, Phase-I. The house No. LIG 171 which was allotted to the complainant is not mentioned under the above heads. Ex.B5 shows house No. 171 in Site-I, Phase-II of MIG houses but not a LIG houses. Ex.B6 is an identical notification. Therefore the opposite party cancelling the allotment of the complainant’s house LIG 171 house in Site-I, Phase-I of PR pally cannot be said to be proper. In view of the mistaken publications. The cancellation must be said to be illegal.
14. The argument of the learned counsel for the opposite party that the complainant suddenly came forward after 19 years therefore the complainant is barred by limitation cannot be said to be a tenable argument, in view of illegal cancellation of allotment in pursuance of improper publications.
15. During arguments the learned counsel for the opposite party referred to Exs. B1 to B4. Ex. B1 is a letter of the opposite party to the complainant. According to the learned counsel the complainant has acknowledged the receipt of the same by signing in it. But the signature purported to be of the complainant, infact is not that of the complainant. Exs. B2 and B3 are letters addressed by the opposite party to water works department and electricity department to provide water connection and electricity connection. Signature of the name of the complainant is referred by the learned counsel for the opposite party on the paper containing Exs. B2 and B3. Even the said signature is not that of the complainant. Ex.B4 is yet another letter of the opposite party to the complainant informing her about fixation of installments payable by her. The receipt of this document is acknowledged by one K. Mohan Rao. It is not known in what way the said Mohan Rao is connected with this matter. The learned counsel could not give any answer to this.
16. The learned counsel for the complainant has contended that the complainant is a poor scheduled caste woman belonging to low income group and she has parted with her hard earned money, but for the reasons best known to the officials of the opposite party, the allotment of the house made in favour of the complainant was illegally cancelled and allotted that house to another and there by caused great in justice to her and therefore requested to direct the opposite party to allot the house LIG House No. 171, in site-I, Phase-I of PR pally village and if it is not feasible the opposite party may be directed to allot at least any other suitable house to the complainant. For the question of limitation it is contended by him that the complaint is not at all barred by the limitation because it is a continuing cause of action and cancellation is illegal.
17. In a circumstances discussed above we are in agreement with the contentions of the learned counsel for the complainant. It is held that the action of the opposite party amounts to deficiency in service.It is further held that the complaint is not barred by limitation and the complainant is entitled for allotment of the house in question. The complainant is fair enough to agree for allotment of any other house if it is not feasible to allot LIG 171 to her, because it is already allotted to somebody else. Point is answered in favour of the complainant.
18. In the result the complaint is allowed with costs. The opposite party is directed to register the house LIG 171, Site-I, Phase-I of PR pally in favour of the complainant and if it is not feasible, allot any other suitable house to the complainant and register it within one month from the date of this order after collecting any amounts due from her by giving credit to the amounts already paid by her. The opposite party is further directed to pay a sum of Rs.5,000/- to the complainant towards costs of this litigation. One month time is granted for payment. The opposite party is directed to bear its own costs.
Typed to dictation, corrected and pronounced by us in the open forum this 18th day of June, 2009.
Sd/- Sd/- Sd/-
PRESIDENT LADY MEMBER MALE MEMBER
