BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM<br /> VAZHUTHACAUD, THIRUVANANTHAPURAM.<br /> PRESENT<br /> SRI. G. SIVAPRASAD : PRESIDENT<br /> SMT. BEENAKUMARI. A : MEMBER<br /> SMT. S.K.SREELA : MEMBER<br /> O.P.No. 360/2001 Filed on 28.08.2001<br /> Dated : 15.10.2008<br /> Complainant:<br /> <br /> C. Rajendran Nair, S/o Chellappan Pillai, Flat No. 223, Nandini Gardens, West Fort, Thiruvananthapuram. <br /> (By adv. M.R. Anandakuttan)<br /> <br /> Opposite party:<br /> <br /> Kerala State Housing Board represented by the Secretary, Kerala State Housing Board, Thiruvananthapuram – 695 001.<br /> (By adv. Saji S.L)<br /> <br /> This O.P having been heard on 15.09.2008, the Forum on 15.10.2008 delivered the following:<br /> ORDER <br /> <br /> SRI. G. SIVAPRASAD: PRESIDENT<br /> <br /> The facts leading to the filing of the complaint are that complainant submitted an application for allotment of flat to the opposite party on 26.09.1992 and remitted an amount of Rs. 100/- as registration fee. After a long lapse of time complainant was served with a letter by opposite party dated 10.10.1999 that a flat is allotted to him for an amount of Rs. 502257/- and complainant was called upon to remit Rs. 125565/- as initial payment. Complainant who was badly in dire need of a residential accommodation thought that the opposite party might have constructed the flat at the said cost and that it is a new one and that the flat will be worth for that much price. Complainant remitted initial amount of Rs. 125565/- on 27.10.1999 and had executed an agreement with the opposite party and thereupon the flat was allotted to him bearing the flat No. BF-6-223 of Punnakkalthoppu H.A.S, West Fort, Thiruvananthapuram. On assuming possession complainant realised that the flat so allotted was constructed in the year 1989 by the opposite party. At the time of construction all flats except 3 flats including the one allotted to the complainant was occupied by other persons. In fact the similar flats in the said Housing Scheme was allotted for an amount of Rs. 105720/- and the amount to be paid at first instalment was Rs. 26430/- and the rest need be paid in instalments at the rate of Rs. 1031/-. At the time of allotment of the flat to the complainant, the said flat was 10 years old and its physical strength deteriorated considerably. Opposite party ought have reduced the depreciation value after calculating the market value of the structure as on the date at least by 50%. The value structure as on the date would come to only Rs. 251128/- only. Opposite party being a public undertaking had ought not have discriminated the members of the public and ought not have treated them differently. Any discrimination or categorization from among similarly placed persons will necessarily violate the principles of natural justice. So complainant prayed for declaration of allotment as void. At the time of occupation of the said flat, the flooring work was not completed and there was no provision for electricity and water supply. Complainant was forced to remit the electric charge, water charge and corporation tax (Rs. 2272/-, Rs. 2322/- and Rs. 2621/- respectively) from 1986 onwards at the time complainant was not in occupation. Complainant is a consumer and opposite party is legally bound to regularize the allotment by satisfying it with the amount already remitted. Hence this complaint claiming regularization of the allotted price of the flat to the complainant in parity with the price at which similar type of flats were allotted to other allottees and to debit 50% of the value towards age of the building and to remit back the amount which the complainant was forced to pay as electricity, water charge and corporation tax before 1999 and to allow compensation of Rs. 50000/- and costs. <br /> Opposite party entered appearance and filed version contending that the complaint is not maintainable either in law or on facts. The complaint is for regularization of price which is outside the jurisdiction of the consumer court. Para 1 & 2 of the complaint is admitted. Para 3 of the complaint is not correct. As per the allotment regulation allotment of completed units are being made strictly on priority basis. The date of allotment and other details of the same are publishing through leading medias well in advance before the date of allotment. The registrants who are attending the said meeting and willing to accept the allotment are becoming entitled to get the allotment. Hence there is no denial of right of the complainant. Para 5 of the complaint is admitted. Opposite party is constructing the building as per the accepted norms of quality and allotting the same as a fresh one. Opposite party cannot construct the building as per the interest of the applicant. The allotment was made to the complainant after issuing provisional allotment letter and final allotment letter. If the flat was not acceptable to him he had to lodge the complaint at that point of time and can evade from the allotment. The building was handed over in possession of the complainant on 04.10.1999. As per rules of agreement structural disability if any has to be brought to the notice of the opposite party within one year from the date of allotment. Otherwise the Board is not liable for such disability. Opposite party has not shown any discrimination to the complainant. The cost of flats are being fixed by adding interest with basic cost upto the date of allotment. Hence the cost of flat allotted at different times will be different cost. Opposite party had not compelled the complainant or insisted him to take the allotment. Opposite party has completed all the works except flooring and electrical fittings. The water and electrical connections were taken by Housing Board after completion of all buildings. But due to non-occupation of flats the Electricity Board has disconnected the electric connection and they might have collected reconnection charge and minimum charge etc. from the allottee at the time of occupation. In agreement of the sale of property, the terms and conditions for repayment of cost, difference on cost etc. has been fixed in a well settled manner. Both the allottee and the opposite party are equally liable to hold the terms and conditions of agreement. After execution of the said agreement complainant cannot challenge the agreement. At the time of allotment complainant did not raise any complaint in construction and structural disability. Since Board has invested huge amount of the scheme which were borrowed from financial institutions with high rate of interest in all schemes of the board the same principle is being applied. The Buildings are allotted in habitable conditions and hence there is no need for depreciation of value since no depreciation has been occurred at the time of allotment. As per allotment conditions all municipal rates, taxes etc. due in respect of flat shall be paid by the allottee with effect from the date of allotment. Hence opposite party prayed for dismissal of the complaint with costs. <br /> The points that would arise for consideration are:-<br /> (i)Whether there has been deficiency in service on the part of opposite party?<br /> (ii)Whether opposite party is liable to regularize the price of the flat allotted to the complainant in parity with the price at which similar type of flats were allotted to others?<br /> (iii)Whether the complainant is entitled to get back the amount remitted towards electricity, water and corporation taxes before 1999.<br /> (iv)Other reliefs and costs.<br /> To support the contention in the complaint, complainant has filed an affidavit of himself as PW1 in lieu of examination in chief and marked Exts. P1 to P9 and C1. Opposite party did not file proof affidavit and documents. <br /> Points (i) to (iv):- It has been the case of the complainant that complainant had applied for allotment of flat in 1992 and after a long lapse of time a flat was allotted by the opposite party to the complainant for an amount of Rs. 502257/- and complainant was called upon to remit an amount of Rs. 125565/- as initial payment and complainant had remitted the said amount of Rs. 125565/- on 27.10.1999 by Ext. P4 and had executed an agreement with the opposite party by Ext. P3 and thereupon the flat was allotted to him bearing the flat No. B.F. 6-233 of Punnakkalthoppu HAS, West Fort, Thiruvananthapuram. It has also been the case of the complainant that the allotted flat was constructed in the year 1989, and the similar flats in the said Housing Scheme was allotted for an amount of Rs. 105720/- and that the discrimination made by the opposite party is against the fundamental rights of citizens and also against the principle of administrative law and hence this complaint to regularize the price of the flat. Ext. P1 is the copy of the advocate notice dated 26.12.2000 requesting to reduce the value of the flat. Ext. P2 is the copy of the reply to Ext. P1 issued by the opposite party. As per Ext. P2 the Flat No. BF 6-223 was provisionally allotted to the complainant fixing its tentative cost at Rs. 5,02,257/- in acceptance of which complainant remitted Rs. 1,25,565/- being 25% of the tentative cost as initial deposit on 20.09.1999 and took possession of the same on executing hire purchase agreement with the opposite party on 04.10.1999. Opposite party admitted that the cost of BF-6 type flat during 1987 was Rs. 105720/- and the approximate area of the flat is 40 m2. Opposite party further submitted that the tentative cost of the flat is the cost as on the date of allotment which is arrived at by adding normal interest to the construction cost. Submission by the opposite party was that since flat No. BF 6 was allotted to the complainant on 18.09.1999, its tentative cost was fixed as on 30.09.1999 and that only cost of the works done by the opposite party formed part of the tentative cost. Ext. P3 is the copy of the agreement for the sale of the property and apartment. Both the complainant and opposite party have signed in Ext. P3. As per clause 4 of the agreement, the cost of land and price of the flat constructed upon the property is tentatively fixed at Rs. 5,02,257/-. As under clause 31(B) of the agreement(Ext. P3) the price so fixed or raised by the Board shall be binding on the party of the second part and shall not be liable to be questioned on any grounds. Main thrust of argument advanced by the opposite party was to the effect that the opposite party had not shown any discrimination to the complainant and that the allotment was made to the complainant after issuing provisional allotment letter and final allotment letter and that if the flat was not acceptable complainant had to lodge the complaint at that point of time and can evade from allotment. Opposite party went on to submit that the complaint is for regularizing price which is outside the jurisdiction of this Forum. On going through the complaint, it is pertinent to point out that the grievance of the complainant centres around pricing or escalation of price. It is settled law that the Consumer Fora cannot go into the question of pricing as per law laid down by the Hon'ble National Commission in the case National Consumer Awareness Group (regd.) Vs. The Housing Commissioner, Punjab Housing Development Board III (1997) CPJ 88(NC), wherein it was held that “the price determined by the opposite party in accordance with the procedure evolved by it and there is no statutory control over the fixation of the price and the same cannot therefore be interfered with. The pricing of flats built by the public authority is not a consumer dispute.” It is the case of the complainant that while he was allotted flat in 1999, for an amount of Rs. 502257/- the similar flats were allotted to other allottees for an amount of Rs. 1,05,720/-. After perusal of material on record and contention of parties, we see no merit in this for the simple reason that the other allottee's agreement for sale (as seen in Ext. P9) was in the year 1989. While the complainant's agreement for sale was in the year 1999 and the other allottee has been paying instalments as per terms from earlier years. In these circumstances, we are clearly of the view that two unequal situations cannot be treated at par. Moreover as per Ext. P3, complainant and opposite party have jointly executed the agreement for sale in 1999 which might have done by the complainant after proper inspection of the flat in dispute. After execution of the said Ext. P3 both parties are bound to observe the terms of the agreement. In view of the above we find pricing and price regularization is not a consumer dispute. Deficiency in service not proved. The next point to be considered is whether the complainant is entitled to get back the amount remitted towards electricity, water and corporation taxes before 1999. As per clause 14 of the terms of agreement “From the date of taking possession of the property the party of the second part shall pay all the rates, taxes and other outgoings payable in respect of the property to the Government, Corporation or to any other local authority or their tribunal. The part of the second part shall also pay all charges for electricity, drainage and for consumption of water. It has been the case of the complainant that complainant was forced to remit the electric charge, water charges and corporation tax (Rs. 2272/-, Rs. 2322/- and Rs. 2621/-) respectively from 1986 onwards at the time the complainant was not in occupation. It has been reported by opposite party by submitting that water and electrical connections were taken by opposite party after completion of all buildings, and that due to non-occupation of flats, the Electricity Board has disconnected the electric connection and the Board might have collected reconnection charge and minimum charge etc. from the allottee at the time of occupation. As per clause 14 of the terms of the agreement (Ext. P3) the complainant shall pay all charges for electricity, drainage and for consumption of water from the date of taking possession of the property. Opposite party admitted that the possession was handed over to the complainant on 04.10.1999. By “all rates and charges as enshrined under clause 14 of the agreement”, we mean all rates and charges payable by the occupier after taking possession of the flats. In the instant case opposite party submitted that the possession of the flat was handed over to the complainant on 04.10.1999. There is no material on record to show that opposite party demanded the complainant to occupy the said flat prior to 1999. The liability of the complainant towards the building and its use would arise from the date of occupation only. When there can be different interpretation of a clause the interpretation more beneficial to the consumer is to be considered. Hence complainant is not liable to remit any charges like property taxes, water charges and electricity charges towards the said flat prior to 04.10.1999. The charges wherein the complainant were forced to remit by the opposite party prior to 04.10.1999 is against the interest of natural justice and equity. Ext. P5 is the copy of receipt dated 26.04.2000 for Rs. 2322/- issued by Kerala Water Authority towards water charges from 7/90 to 4/2000 (that is 116 months). The average monthly charges is Rs. 2322/116 = Rs. 20.1. Since the complainant has taken possession of the flat from 04.10.1999 he had to remit water charges from 04.10.1999 to 26.04.2000 (around 6 months) that is 6x20= Rs. 120/-, instead of 2322/- as per Ext. P5. On that count, complainant is entitled to get back Rs. 2122/- for non-occupation of the said flat. Ext. P6 is the copy of the demand and disconnection notice dated 17.08.1999 for Rs. 482/- issued by the KSEB which is seen remitted on 23.09.1999 with interest which would come to Rs. 502/- and from 9/89 to 6/97 an amount of Rs. 1765/- is also seen received by the KSEB on 23.03.1999. Since the date of occupation of flat by the complainant was on 04.10.1999, he is entitled to get back the said amount (Rs. 502/- + Rs. 1765 = Rs. 2267/-). Ext. P7 is the copy of receipt dated 26.10.1999 for an amount of Rs. 1472 + Rs. 1149/- issued by the Thiruvananthapuram Corporation towards property taxes from 86-87 to 99-00. Of the said tax remittance of Rs. 2621/-, complainant need to pay tax only for the period 1999-2000 that is Rs. 184/-. On that count, complainant is entitled to get back Rs. 2437/-(2621-184). As per Exts. P5 to P7 the amounts are seen remitted in the name of the Executive Engineer of the opposite party. It is pertinent to note that the said bills are seen produced by the complainant and only agreement for sale was executed and till the execution of the sale deed, the property will be in the name of opposite party, from which we can draw inference that at the time of execution of agreement for sale, complainant was urged to remit the pending taxes, water charges and current charges, that may be the reason why complainant had produced Exts. P5 to P7. Opposite party had no case that the said charges were remitted by the opposite party. In view of the above we find complainant is entitled to get back Rs. 6826/-(Rs. 2122+ Rs. 2267+Rs. 2437) from the opposite party. Opposite party shall adjust the said amount of Rs. 6826/- against the instalments to be paid by the complainant. In view of the above we need not consider other documents including commission report. <br /> In the result, complaint is allowed in part. Complainant is entitled to get back Rs. 6826/- from the opposite party remitted towards water charges, current charges and taxes as per Exts. P5 to P7. Opposite party shall adjust the said amount of Rs. 6826/- against instalments to be remitted by the complainant. There will be no order as to compensation and costs in facts and circumstances of the case. <br /> <br /> <br /> A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.<br /> <br /> Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 15th October 2008.<br /> <br /> G. SIVAPRASAD,<br /> President.<br /> <br /> BEENAKUMARI. A : MEMBER<br /> <br /> <br /> S.K. SREELA : MEMBER <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> O.P.No. 360/2001<br /> APPENDIX<br /> I COMPLAINANT'S WITNESS : <br /> NIL<br /> II COMPLAINANT'S DOCUMENTS :<br /> <br /> P1 - Photocopy of advocate notice dated 26.12.2000.<br /> P2 - Photocopy of reply letter issued by the opposite party.<br /> P3 - Photocopy of agreement for sale of property and apartment.<br /> P4 - Photocopy of pay in slip dated 20.09.1999.<br /> P5 - Photocopy of receipt No. E 878791 dated 25.04.2000.<br /> P6 - Photocopy of demand and disconnection notice No.D3 76479 <br /> dated 10.08.1999.<br /> P7 - Photocopy of receipt No. 041966 dated 26.10.1999. <br /> P8(10 Nos.) - Photocopy of current account (pay-in-slip) dated <br /> 04.10.1997.<br /> P9 - Photocopy of agreement for sale of the property and the <br /> apartment. <br /> <br /> III OPPOSITE PARTY'S WITNESS :<br /> NIL <br /> IV OPPOSITE PARTY'S DOCUMENTS :<br /> NIL<br /> V COURT EXHIBIT<br /> CW1 - Bijoy. G.S<br /> C1 - Valuation Report.<br /> <br /> <br /> PRESIDENT<br />