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 23rd day of July, 2009
CC.No. 32 of 2008
Between:
Ch. Balakrishna S/o Nagaiah,
Aged 23 years, Occ: Civil Contractor,
R/o Sardana Village, Medak Mandal and District.
….. Complainant
And
Vice Chairman and Housing Commissioner,
A.P. Housing Board, Gruhakalpa, M.G. Road,
Hyderabad.
….Opposite parties
This case came up for final hearing before us on 14.07.2009 in the presence of Sri. M. Goverdhan Rao, advocate for complainant and Sri. Anantha Rao Kulkarni, advocate for the opposite party, on hearing the arguments of both sides, upon 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 to direct the opposite party to allot HIG house at APHB colony, Siddapur Village of Sadasivapet Mandal and to initiate action against the opposite party.
The averments in the complaint in brief are as follows:
1. In pursuance of the application made by the complainant on 27.10.2003 to the opposite party, a HIG house at APHB colony in Siddapur Village of Sadasivapet Mandal, Medak District was allotted to him vide allotment letter No. SS.Pet /P.F.-23/EE(W.D.)/2004/73 dt. 15.04.2004 and he was asked to deposit Rs.10,000/- towards registration charges, by way of Demand Draft with necessary certificates and there upon the complainant deposited Rs. 10,000/- by way of Demand Draft on 05.05.2004. Thereafter the opposite party addressed another intimation letter dt. 30.06.2004 asking the complainant to deposit 15% of the tentative cost of the house within 30 days from the date of receipt of the said intimation letter. It was not served on the complainant personally but it was served on his family members as the complainant was out of station. Since he was in Dharwad in Karnataka State, he could not respond to the letter and comply with the directions there in within the time. Immediately coming to know of the same, the complainant paid a part of the amount i.e. Rs.40,000/- through challan on 19.05.2005 which was received in the office of the opposite party at Kukatapally. After receipt of the said amount, the officer of the opposite party issued letter no. HIH/MIG-11/SS.pet/EE/WD/K.P., dt. 27.11.2006, i.e. all most after one year, informing him that his allotment of the house was cancelled. Without giving opportunity to the complainant to pay the balance of Rs. 32,000/- the allotment was cancelled which is arbitrary, illegal and against the principles of natural justice. The amount paid by the complainant is lying with the opposite party. The complainant made several representations to the opposite party requesting to revoke the proceedings dated 27.11.2004 and permit him to pay the balance amount of Rs. 32,000/- . Though the said representations are served on the opposite party there is no response. Ultimately the complainant got a legal notice issued to the opposite party requesting to give an opportunity for payment of balance amount for allotment of the house within one week from the date of receipt of the notice. Inspite of receipt of the said notice, the opposite party failed to make allotment of house and also not refunded the amount deposited by the complainant. As there is deficiency in service on part of the opposite party this complaint is filed.
2. The opposite party resisted the claim of the complainant by filing a counter to the following effect:
It is true that the complainant had submitted application No. 9230 on 31.05.2004 for allotment of HIG house at Sadasivapet duly paying Rs.10,000/- towards EMD by way of Demand Draft dt. 05.05.2004 as per the notification of the opposite party in respect of vacant houses at Sadasivapet, which are i). 10 HIG, ii). 29 MIG-II and iii). 19 MIG-I houses. Tentative cost of HIG house was fixed at Rs.5,50,000/-. In pursuance of the same the complainant applied for HIG house and he is one among the 23 applicants. The complainant paid Rs.10,000/- towards EMD. Intimation letter was sent to him on 30.06.2004 to deposit 15% cost of the house after deducting the EMD amount of Rs.10,000/- which comes to Rs. 72,500/-, within 30 days from the date of the intimation letter and the balance tentative cost shall be payable within 90 days after expiry of the 30 days. It is also mentioned in the said intimation letter that house number will be assigned by drawing lots and failure to pay the amounts specified above within the stipulated time leads to cancellation, duly forfeiting the amounts paid by the complainant. The complainant being a civil contractor knows all these things. The complainant has not intimated to the opposite party that he was residing in Dharwad of Karnataka State. He has knowledge about the intimation letter which was served on his family members. It is true that the complainant paid Rs.40,000/- on 19.12.2005 after a lapse of one and half year as against the amount of Rs. 72,500/- payable towards 15% . He did not pay any further amount nor submitted any representations till October, 2006 as such the allotment of HIG house has been cancelled vide letter dt.27.01.2006 duly forfeiting the amount of Rs. 10,000/- and Rs.40,000/- paid by the complainant. The opposite party has given ample opportunity to the complainant to deposit amount. Inspite of it the complainant has not taken any steps. He failed to pay the amount within the specified period. It is crystal clear that there was delay and negligence on the part of the complainant to full fill the conditions of the intimation letter. It is clearly mentioned in the intimation letter dt. 30.06.2004 that the allotment will be cancelled, duly forfeiting the amounts paid by the allottee, if he fails to pay the amount mentioned in the letter, as such the allegations of the complainant that there was no intimation to him before cancellation is not correct. The legal notice dt. 24.07.2007 issued to the opposite party requesting to give to the complainant an opportunity for payment of balance is against G.O.Ms. No. 67 Housing, which is as follows:
3. “As per Sub Regulation VII (a) (b) (c) of Regulation 7, amended in G.O.Ms. No. 67 Hg (HB.II-I) Dept., dt: 3-12-2004 is as follows:
VII) In case, the allottee refuses the house / flat / plot as per allotment or fails to pay the further amounts as demanded by APHB within the stipulated date, the allotment will be cancelled duly forfeiting 10% of the notified cost or the total amount paid by the allottee which ever is lower, after 45 days of the stipulated date.”
4. In this case the allotment of the house was cancelled on 27.11.2006 i.e. after the date of the G.O. as such the complainant is not entitled for allotment of HIG house and as the amount deposited by him was forfeited, he is not entitled to claim any thing as such the complaint is liable to be dismissed. The complaint may be therefore be dismissed with costs.
5. Both parties filed their evidence affidavits to prove their averments in the respective pleadings. Exs. A1 to A13 are marked on behalf of the complainant and Ex. B1 to B3 are marked on behalf of the opposite party. Written arguments on both sides filed. Oral arguments are also advanced. Perused the record.
6. The point for consideration is whether the complainant is entitled to a direction to the opposite party for allotment of house to him and /or for any other relief?
Point:
7. The case of the complainant is that he applied for allotment of a HIG house enclosing a demand draft for Rs.10,000/- towards registration charges as per the intimation letter Ex.A1 and the opposite party passed Ex.A2 receipt there for and there after the opposite party asked the complainant under Ex.A3 to deposit 15% of the tentative cost of the house, there upon he paid a part of it i.e. Rs.40,000/- under Ex.A4, but without giving him opportunity to pay the balance of Rs.32,000/- to make up 15% of the tentative cost of the house, the opposite party arbitrarily cancelled the allotment under Ex.A5, keeping the amounts deposited by the complainant with themselves. As there was no response from the opposite party for his representatives covered by Ex.A6 to A13 this complaint is filed.
8. But according to the opposite party in pursuance of notification of the opposite party the complainant submitted an application with a demand draft dated 05.05.2004 for Rs.10,000/- towards EMD for allotment of a HIG house, later the opposite party sent a letter on 30.06.2004 (Ex.A3) fixing the tentative cost of the HIG house at Rs.5,50,000/- and requested to deposit 15% of the tentative cost after deducting the EMD amount of Rs.10,000/- which comes to Rs. 72,500/- within 30 days and further requested to pay the balance of the tentative cost within the 90 days their after. The complainant was also informed in the said letter that house number will be assigned by drawing lots and failure to pay 15% of the tentative cost and the balance within the stipulated time leads to cancellation of the allotment duly forfeiting the amounts paid by the complainant . I t is the case of the opposite party that after Ex.A3 intimation letter the complainant has not deposited 15% of the tentative cost within 30 days from the date of receipt of the letter as stipulated their in.
9. The complainant’s contention is that he was away from his native place as he was working in Dharwad in Karnataka State therefore he did not receive Ex:A3 intimation letter in person and it was received by his family members and coming to know of the same on 19.12.2005 he has deposited Rs.40,000/- out of Rs.72,500/- towards 15% of the tentative cost, but without asking him to pay the balance of Rs. 32,500/- the allotment was arbitrary cancelled.
10. The opposite party admitted the payments made by the complainant. It is clear from Ex. A3 intimation letter that tentative cost of the house is fixed at Rs.5.50 lakhs and 15% of it after deducting the amount of Rs. 10,000/- (which was earlier paid), comes to Rs.72,500/- and the complainant was asked to deposit the said amount of Rs. 72,500/ within 30 days and balance of the tentative cost within 90 days there after. The contention of the complainant that he did not receive Ex. A3 in person and it was served on his family members therefore he is entitled to pay within 30 days from the date of knowledge of that letter is not acceptable. It is not as if there is delay of one week or one month in depositing part of 15% of the cost i.e. Rs.40,000/-. He has not stated on what date his family members received Ex.A3 intimation letter. A Xerox copy of the original of it, is marked on behalf of the opposite party as Ex.B2, which shows that it was sent to the complainant by registered post on 06.12.2004 i.e. about one week after the date mentioned in Ex.B3. Naturally it must have been served to the addressee i.e. the complainant, or on his family members as contended by him, within a week there after i.e. during the second week of July, 2004 but the deposit of Rs. 40,000/- by the complainant by way of challan under Ex. A4 is on 19.12.2005 i.e. one and half year after Ex. A3 intimation letter. By no stretch of imagination the version of the complainant that immediately coming to know of the receipt of Ex.A3 letter he deposited Rs.40,000/ on 19.12.2005 can be believed. That is to say it cannot be believed that he came to know of EX.A3 for the first time during December. 2005. It must be noted here that in the second page of Ex.A3 it is clearly mentioned at the end as follows: “Note:- It is your responsibility to ensure proper delivery of letters sent to you to the address given in the application. Non receipt of letter or subsequent communication cannot be an excuse for failure to make timely payments”. Therefore in view of the above note in Ex. A3, the complainant’s version is totally unacceptable.
11. Inspite of the abnormal delay of one and half years in making payment, that too in part, of the 15% of the tentative cost of the building, the opposite party waited for considerable time of eleven months and odd i.e. nearly one year and then decided to cancel the allotment under Ex.A5 letter on 27.11.2006. Ex.B3 is Xerox copy of office copy of Ex.A5. Therefore even though the opposite party has shown much indulgence, the complainant has not properly made use of the facilities given to him by the opposite party, but came forward with a complaint that the opposite party arbitrarily cancelled the allotment.
12. During arguments the complainant has stated that the contention of the opposite party that the complainant is a civil contractor and he knows the procedure very well regarding payments to be made is not acceptable because he became a civil contractor after filing of this complaint in this forum. But the said version of the complainant is disproved by his own documents which are marked as Exs. A8, A9 and A13. Exs. A8 and A9 are representations made by the complainant in person on 24.07.2007 and 05.09.2007 to the opposite party wherein he himself mentioned that he was a civil contractor. Ex.A13 office copy of the lawyer notice also described the complainant’s occupation as civil contractor.
13. From the circumstances of the case it is clear that the complainant was very negligent in making payments after allotment of the house inspite of clear note in Ex.A3 which was reproduced above, therefore the cancellation of the allotment of the house by the opposite party under Ex.A5 cannot be said to be an arbitrary action. However we are of the opinion that even though forfeiting of the registration fee of Rs.10,000/- is within the powers of the opposite party , it is held that they have no power to forfeit subsequent payment of Rs.40,000/- under Ex.A4, because it was not paid in time and it was paid with abnormal delay of one and half years and the cancellation of allotment is on the ground of delay. Therefore it is held that the complainant is entitled for refund of Rs.40,000/- but not for the initial amount of Rs.10,000/-. It is further held that the complainant is not entitled for the reliefs prayed for in the complainant. The point is answered accordingly, partly in favour of the complainant.
14. In the result the complaint is allowed in part directing the opposite party to refund Rs.40,000/- to the complainant within one month failing which the said amount shall carry interest at 6% p.a. from the date of filing of this complaint i.e. from 26.06.2008 till realization the complainant is not entitled for allotment of house in his favour or to ask this forum to initiate any action against the opposite party. In the circumstances both parties are directed to bear their own costs.
Typed to dictation, corrected and pronounced by us in the open forum this 23rd day of July, 2009.
Sd/- Sd/- Sd/-
PRESIDENT LADY MEMBER MALE MEMBER
APPENDIX OF EVIDENCE
Witness examined
For the complainant : For the opposite parties:
-Nil- -Nil-
DOCUMENTS MARKED
For the complainant : For the opposite parties:
Ex.A1/dt.15.04.2004 - Intimation letter Ex.B1/dt03.12.2004 – G.O. Ms. No. 62 Housing (H.B. II.1) Department
Ex/A2/dt.31.05.2004 - Receipt issued by Ex.B2/dt30.06.2004 – copy APHB of intimation letter (Same as Ex.A3)
Ex.A3/dt.30.06.2004 - Intimation letter Ex.B3/dt. 27.11.2006 - office copy of letter of Cancellation of allotment of the House (Same as Ex.A5)
Ex.A4/dt.19.12.2005 - Original challan of SBH,
K.K.P.
Ex.A5/dt.27.11.2006 - letter of Cancellation of allotment
of the House
Ex.A6/dt.05.01.2007 -Xerox copy of letter of the complainant
to the opposite party
Ex.A7/dt.22.01.2007 - Xerox copy of letter of the complainant
to the opposite party
Ex.A8/dt.24.07.2007 - office copy of notice issued by the
complainant to the opposite party
Ex.A9/ 05.09.2007 - office copy of notice issued by the
complainant to the opposite party
Ex.A10/29.09.2007 - Xerox copy of letter of the complainant
to the opposite party
Ex.A11/dt.06.11.2007 - Xerox copy of letter of the complainant
to the opposite party
Ex.A12/dt.28.11.2007 -Postal acknowledgement
Ex.A1312.05.2008 -office copy of lawyer notice
Sd/-
PRESIDENT
Copy to
1) The Complainant
2) The Opp.Parties
3) Spare copy copy delivered to the Complainant/
Opp.Parties On ___________
Dis.No. /2009, dt.
