A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION
AT HYDERABAD.
F.A. 927/2006 against C.C 105/2005, Dist. Forum, Tirupathi
Between:
Prof. B.C. Venkata Reddy
S/o. Late Konda Reddy
Age: 58 years,
Vice-Principal, SVU College
Tirupati
R/o. 6-9-1319/A
APHB Colony, K.T.Road
Tirupati, Chittoor Dist. *** Appellant/
Complainant
And
1. The Executive Engineer (Housing)
A.P. Housing Board,
Kalluri Palli, Nellore.
2. The Deputy Executive Engineer (Housing)
Tirupati Sub-Division, 18-8-49/8
Madhura Nagar, Tirupati
Chittoor District.
3. The Vice-Chairman & Housing Commissioner
A.P. Housing Board
Gruhakalpa, Opp. Exhibition Grounds,
Nampally Road, Hyderabad. *** Respondents/
O.Ps.
Counsel for the Appellant: M/s. Ganduri Nageswara Rao
Counsel for the Resps: Mr. D. Ranganath Kumar
HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT
SMT. M. SHREESHA, MEMBER
&
SRI K. SATYANAND, MEMBER
MONDAY, THIS THE TWENTY SEVENTH DAY OF JULY TWO THOUSAND NINE
Oral Order: (Per Hon’ble Justice D. Appa Rao, President)
*****
Appellant is unsuccessful complainant.
2) The case of the complainant in brief is that the respondent housing board ( the board) took up the construction of houses at Tirupathi where plot area of MIG houses is 300 sq.yds, plot area of LIG houses is 200 sq.yds. The board took up the construction of 25 MIG, 12 LIG-I and 18 LIG-II houses under phase-III in the year 1982 with the plot area of 200 sq. yds. The complainant was allotted MIG-40 at Rs. 65,500/- after taking initial deposit of Rs. 1,000/-. The plot area under MIG houses was 300 sq.yds. He took possession of the house MIG-40 built in plot No. 25 on 7.1.1989. In the year 1993 the board fixed the final cost of the MIG houses at Rs. 1,21,800/- but on his representation it was reduced to Rs. 96,900/-. After payment of the amount, he requested to register the house. However, the board observed that he was holding excess land of 98 sq.yds and that he encroached it in the year 1990. When a meeting was held, he agreed to pay Rs. 98,000/- towards excess land besides encroachment fee under Ex. B4. When the board demanded Rs. 1,47,065/- he asserted that he would not pay the excess land cost, as the house was constructed in the left over plots in phase-I, and the same was handed over to him in the year 1989 itself. Therefore, he filed the complaint directing the board to refund the excess amount collected from him along with interest @ 24% p.a., and for registration of plot No. 25 (45’ x 60’) and pay compensation of Rs. 1 lakh towards mental agony and Rs. 1 lakh towards deficiency in service and costs.
3) The respondent board resisted the case. While admitting the allotment of house MIG-40 in his name, it alleged that he encroached 98 sq.yds of land, and agreed to pay Rs. 98,000/- towards the cost of excess land besides encroachment fee. He failed to pay in spite of repeated demands and therefore it could not be registered in his name. In the lay out plan it was categorically mentioned that under phase-III proposed MIG houses are built with plot size of 30’ x 60’, each measuring 200 sq.yds. Though MIG-40 house was with plot area of 45’ x 60’ measuring 300 sq.yds the construction was made with plot area of 30’ x 60’ only. MIG-40 house was constructed by the complainant flushing the north side boundary with the plot boundary on par with other MIG houses of phase-III. Since the complainant failed to pay Rs. 98,000/- as agreed upon on 15.7.2002 he was not entitled to registration without paying the same. The market value of 98 sq.yds at Rs. 3,450/- per sq.yd would come to Rs. 3,38,100/-. It was entitled to the said amount besides encroachment fee, and interest from the said date. If the complainant was prepared to pay the amount as per notice Dt. 2.11.2005 with interest besides registration and other charges, it would register failing which it has every right to evict him from the vacant site. He was not entitled to the reliefs prayed, and therefore prayed for dismissal of the complaint with exemplary costs.
4) The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A86 marked, while the respondent filed its affidavit evidence and got Exs. B1 to B12 marked.
5) The Dist. Forum after considering the evidence placed on record opined that the complainant was admittedly holding excess land of 98 sq.yds necessarily he had to pay the amount towards excess land cost besides encroachment fee with interest. He himself accepted as President of the allottees association on behalf of the allottees on 19.12.2001. The rules governing the allotment would undoubtedly make the complainant to pay interest, development charges etc. Since the complainant did not pay the amount with interest as agreed upon, it dismissed the complaint however without costs.
6) Aggrieved by the said decision, the complainant preferred this appeal contending that the Dist. Forum did not appreciate the facts in correct perspective. It ought to have seen that he is not having excess land of 98 sq.yds. as the plot size in MIG-III phase is 200 sq.yds. ignoring the fact that his house MIG-40 is constructed in the left over plots in phase-I where it was handed over to him in the year 1989 itself. When it has issued a certificate Dt. 7.1.2002 mentioning that he had paid the entire balance sale price of the house, it is the bounden duty of the board to register the house in his name. Since he is in possession of 200 sq.yds., whereas the size of the plot is 300 sq.yds, he is not liable to pay any excess amount. At the most he was liable to pay at Rs. 23/- per sq.yd and interest from the date of handing over the site till the date of payment. Therefore he prayed that the appeal be allowed.
7) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact and consequently the complaint is liable to be allowed?
8) It is an undisputed fact that house No. MIG-40 at K.T. Road in APHB Colony , Tirupathi was allotted to the complainant by the board. The complainant constructed the house in phase-III, in the left over plots in phase-I. The plot area is 45’ x 60’ as per the approved plan lay out in phase-I. The house is constructed in phase-III. Therefore the plot is more in extent by 98 sq.yds., when compared to all other 24 houses in phase-III. The allotment of house is made on par with other phase-III houses. The plot area for phase-III is 200 sq.yds. The complainant asserts he constructed the house in left over plot area of 45’ x 60’ under phase-I though the plot area of phase-III is 200 sq.yds. Admittedly, he constructed the house in phase-III area where each plot consists of 200 sq.yds. This excess area he encroached and sought registration on payment of amount as calculated while fixing area for phase-I allottees. When he has constructed the house in phase-III, he cannot turn round and contend that since his plot is left over plot of phase-I, he was entitled to 300 sq.yds i.e., less than 2 sq.yds of standard size of 300 sq.yds, and would pay as per the rate existing by then. The complainant is the Vice-Principal of S.V.U. College, Tirupati and also the President of the allottees association. He was representing the members of the association. Several representations and discussions were made in regard to fixation of the cost of the area.
9) Though voluminous record was placed the fact remains that the very complainant agreed to pay Rs. 98,000/- towards excess land cost. He signed representing himself as President of the association. The Superintending Engineer, in his report Ex. B5, arrived the final cost at Rs. 98,000/- on 15.7.2002. This was agreed by the complainant. He made an endorsement by noting it as “Agreed”. The details of the cost of the land were enclosed to the said proceedings. When the complainant did not pay as agreed by him, the Executive Engineer by his letter Dt. 5.11.2004 vide Ex. B6, directed him to pay Rs. 1,32,770/- giving the following details:-
(a) Towards balance amount as approved
by the Chief Accounts Officer, Rs. 1,856-00
APHB, Hyderabad.
(b) Towards compounding fee for Rs. 1,554-00
Unauthorised construction.
( c ) Towards excess land cost and Rs. 98,000-00
Encroachment fee as agreed by you
On 15.7.2002
(d) Towards interest @ 13% p.a., on Rs. 31,320-00
Rs. 98,000/- from 1.5.2002 to
15. 10. 2004.
(e) Further interest from 15/10/2004 to Rs. 1,062-00
15/11/2004. --------------------
Rs. 1,33,792-00
--------------------
10) The complainant agreed with the calculation made by the board, and further agreed to pay the amount later turned round and started litigation by issuing notice after notice stating that he did not encroach the land, he need not pay any amount and it was only a left over area and therefore he was not liable to pay as per the rates prevailing for phase-I area etc. Undisputably t he board is entitled to collect the amount by virtue of G.O. Ms. 38 Housing (HB-II) Department Dt. 3.5.1997. issued by the Government of A.P.
11) The learned counsel for the board contends that the complainant has no right to claim the excess land on free of cost. The government permitted the board to sell stray pieces of land measuring 100 sq.yds and above by public auction and sell the land measuring less than 100 sq.yds to the adjacent owner on market value subject to condition that No Objection Certificate is obtained from the municipal authorities and local bodies when put to auction in cases of residential areas. In the light of said notification, it
was agreed to sell the land to the very complainant as the extent of site is 98 sq.yds. Despite the fact that the complainant had agreed for the value fixed and pay the amount, he turned round, and filed the case. The complainant
was liable to pay the amount calculated and determined as per Ex. B5. The complainant is willing to pay the amount, however he intends to pay at Rs. 23/- per sq.yd as alleged in the grounds of appeal No. 7. There is no basis for fixing the land rate at Rs. 23/- per sq.yd. in the light of the letter Dt. 16.4.2002. The complainant did not agree for such a course when the board demanded the amount. In view of escalation of the prices etc. he cannot turn round and contend that he was not liable to pay the amount as calculated by the board. The complainant having failed to pay as demanded by the board at Rs. 98,000/- he was liable to pay as per the notice Dt. 2. 11. 2005.
12) We are of the opinion that the complainant is liable to pay the amount as demanded vide Ex. A36 notice and on such payment the complainant is entitled to get the house as well as the site registered in his favour. Since admittedly the house as well as the site is still in the occupation of the complainant and the complainant in fact after calculating the amount agreed for the said amount and as such he is directed to pay the said amount and on such payment the complainant is entitled to registration. However, the interest is liable to be paid as the complainant had the advantage all through though not at 13% p.a., but @ 9% p.a., from 2.11.2005 till the date of registration.
13) In the result the appeal is allowed in part. Consequently the complaint is allowed in part. The complainant is directed to pay the amount to the housing board as demanded viz., Rs. 98,000/- towards excess land cost and encroachment fee, Rs. 1,856/- towards balance amount, Rs. 1,554/- towards compounding fee for unauthorised construction besides interest @ 9% p.a., on Rs. 1,01,410/- from 2.11.2005 as demanded by its letter Dt. 2.11.2005. The complainant is also directed to pay interest @ 9% p.a., from 30.11.2005 till the date of registration as the complainant has been in enjoyment of the house as well as the site and on such deposit the board is directed to register the house and the site with registration and stamp fee and other expenses borne out by the complainant. In the circumstances of the case each party to bear its own costs. Time for compliance six weeks.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
3) _________________________________
MEMBER
Dt. 27. 07. 2009.
*pnr
“UP LOAD – O.K.”
