Research › Search › Judgment

J&K High Court · body

2002 DIGILAW 279 (JK)

Housing Board, J&K v. Romesh Chander Gupta

2002-08-30

S.K.GUPTA, T.S.DOABIA

body2002
JUDGEMENT The Jammu and Kashmir Housing Board has been called upon to compensate the complainant respondent who had preferred a complaint before the State Commission constituted under the Jammu and Kashmir Consumer Protection Act. A finding stands recorded that the appellant Board did not complete the construction of the flat and the same was not made habitable. It was stated that there was delay in the matter of completing the construction and handing over the possession. Accordingly compensation to the tune of Rs. 50,000 has been allowed to the complainant. An amount of Rs. 5000 has also been allowed as litigation expenses. In case of non-payment within a period of 30 days, the complainant was held entitled to interest at the rate of 12 per cent. It is this order, which is subject matter of challenge in this appeal. 2. The facts as projected in the complaint and the material which came before the Commission be noticed. In response to an advertisement notice issued by the appellant- Board, applications for allotment of residential flat was submitted by the respondent - complainant on 14th Feb98. The complainant was informed that a flat would be allotted at a tentative cost of Rs. 6,61,500/-. The accommodation which was to be alloted was on the ground floor. There was a stipulation that if there is delay in the matter of depositing the cost in terms of the Schedule indicated in this regard, then interest @ 18% would be charged for all delayed instalments to be paid by the complainant. The complainant signed the agreement on 23rd March98. The penal clause, which was the part of agreement is to the following effect:- " In case of default on the part of second party to pay the above prescribed instalment in time, the second party shall be permitted to deposit the above instalment (defaulted) upto 60 days with 18% interest thereon with the first party and in case of default in making payment of the instalment within the above mentioned stipulated time, the first party shall be fully entitled to forfeit 10% of the amount already paid by the first party and to cancel and revoke this agreement..." 3. The respondent complainant submits that there was delay in the matter of making payment of the last instalment of 10%. The amount of this instalment was Rs. 66,250/-. The respondent complainant submits that there was delay in the matter of making payment of the last instalment of 10%. The amount of this instalment was Rs. 66,250/-. The appellant claimed interest on this delayed payment at the rate of 18 per cent as per the Agreement. This came to Rs. 8766/-. This payment was duly deposited. A receipt in this regard was issued on 26th July99. In para 7 of the complaint, it was submitted that the full payment was made but the possession of the flat was not given. This was supposed to be handed over by March99. it was submitted that the Board not only did not hand over the vacant possession but as a matter of fact, was not in a position to complete the construction. The complainant made a request to the appellant to hand over the possession on 25th Aug99. The communication in this regard is placed on record as Annexure II. According to the respondent and as per averments made in para 9 of the complaint, he was informed that the possession of flat cannot be handed over as there is no approach road for the vehicle to reach to the flat. According to the respondent complainant, even sanitary fittings were not in existence. The main holes were uncovered. There was no facility of water. With a view to demonstrate that these facilities were not available, the complainant placed on record the photographs Annexure H:1 to Annexure H:10. The fact that the main holes were not complete is sought to demonstrated from Annexure H:1. This photograph does show that the main holes are not covered and as a matter of fact, the complainant is standing in one of the open main hole. The other photographs also do demonstrate that though civil construction, was complete to some extent but then it was not possible to occupy the flat on account of the fact that sanitary fittings were not there and even water facility was not available. According to the complainant he had been approaching the appellant Board but no steps were taken to complete the flat in all respects. According to the complainant he had been approaching the appellant Board but no steps were taken to complete the flat in all respects. The communications which were written in this regard are Annexures J, K, L, and M. In a nutshell, the case of the complainant is that he made full and final payment and wherever there was default on his part, he was burdened with interest at the rate of 18 per cent. It is in these circumstances submitted that the appellant Board was equally bound by the terms and conditions and in case it was unable to fulfil its commitment, then, it was bound to compensate the complainant. 4. The stand taken by the appellant Board was that, no doubt, the flat was to be handed over to the complainant in March99 but the complainant made a default and he paid the last instalment only on 26th July99.It is further stated that the flats were complete but they were not complete in all respects. The fact that the photographs Annexure H.1 to H.10 indicate the lacunas pointed out by the complainant has been denied. It is admitted that minor work outside the flat remained to be done. It was stated that not withstanding the fact that some minor civil works still remained, the complainant could have occupied the flat. It was stated that the possession was handed over on 25th Aug99 but the complainant was not willing to occupy the same, therefore, the appellant could not be burdened as has been done by the Commission. 5. The learned counsel for respondents places reliance on number of judicial precedents with a view to stress that the judgment given by the Commission deserves to be sustained. Reliance is being placed on the judgment of the Supreme Court of India in the case of Lucknow Development Authority v. M.K.Gupta, AIR 1994 SC 787, with a view to contend that Statutory and Local authorities are equally amenable to the provisions of Consumer Protection Laws. Reliance is also being placed on Haryana Urban Development Authority v. Rajnish Chander Sharda, AIR 2000 SC 3572(1). In the above case, there was delay in the allotment of plot by the State Urban Development Authority. The case of the complainant was that on account of delay, the complainant had to stay in a rented accommodation. Reliance is also being placed on Haryana Urban Development Authority v. Rajnish Chander Sharda, AIR 2000 SC 3572(1). In the above case, there was delay in the allotment of plot by the State Urban Development Authority. The case of the complainant was that on account of delay, the complainant had to stay in a rented accommodation. The National Commission had directed the Haryana Urban Development Authority to pay interest @ 18 per cent per annum on amounts that had been deposited by the allottee from the date fo first deposit till possession of plot was delivered. This decision given by the National Commission was sustained by the Supreme Court of India. The fact that compensation can be allowed is sought to be sustained by placing reliance on another decision reported as Ghaziabad Development Authority v. Union of India and another, AIR 2000 SC 2003. Some of the decisions given by the Consumer Forums are also being relied upon. In Meerut Development Authority v. Smt.Poonam Jain, 1(2000) CPJ 87, the development work was not carried out. The complainant was held entitled to compensation. Similar view has been expressed in Meerut Development Authority v. Nirankar Swaroop Mathur, 1(2000) CPJ 124. Ram Chandra Gupta v. Ghaziabad Development Authority, 1(2000) CPJ 387 is a decision given by the Uttar Pardesh State Consumer Disputes Redressal Commission where compensation was allowed when there was delay in handing over the vacant possession. Similar view has been expressed in Thomas Reiz Zuzarte v. C.C. & R.E.D & B, 1(2000) CPJ 405. 6. The question as to whether the findings which have been recorded by the State Commission are sustainable or not be now examined. The findings which have been recorded are to the following effect - (i) That the possession was supposed to be delivered to the complainant in March99. (ii) That there was delay in the matter of making payment of last instalment by the complainant and this was paid by him alongwith interest on 26th July99. The possession was offered to the complainant on 25th Aug99; (iii) That at the time when possession was offerred, the complainant was not in a position to occupy the flat. This was because: (a) The sanitary installations and civil work regarding construction of main holes was incomplete; (b) That water facility was also not available. The possession was offered to the complainant on 25th Aug99; (iii) That at the time when possession was offerred, the complainant was not in a position to occupy the flat. This was because: (a) The sanitary installations and civil work regarding construction of main holes was incomplete; (b) That water facility was also not available. This was made available only after Dec99; (c) That no proper passage or approach road was in existence. 7. Even if everything is taken in favour of the appellant, the fact that sanitary installations and water facilities were not available cannot be ignored. These are the basic facilities and without these, it was not possible for the complainant to occupy the premises. If this be the position, then, it cannot be said that the Commission has committed any error in the matter of awarding compensation. The appellant Board has been charging interest at the rate of 18% on delayed payments. On a sum of Rs. 6,61,500.00 i.e. the cost of the flat which was paid by the complainant the interest @ 18% for one year would come to almost one lac and ten thousand. If the period from 1st Aug99 to 31st Dec99 is taken note of, then the delay would be of five months. For this proportionate amount of above figure would be the same as has been allowed by the Commission. Therefore, to say that the Commission has granted the compensation at an amount which was not permissible or at a figure which is on the higher side, is an argument which cannot be accepted. 8. In view of the above and in view of legal position noticed above, it can safely be concluded that where there is delay on the part of a Development Authority to hand over the possession, then compensation can be granted. As a matter of fact, the view expressed by the Supreme Court in Rajnish Chander Shardas case (supra) is directly on the point. We are accordingly of the opinion that the view expressed by the State Commission, which is subject matter of challenge in this Appeal is a view to which no exception can be taken. The compensation which has been allowed is reasonable. We accordingly sustain the judgment and order passed by the State Commission. This appeal is accordingly dismissed. The respondent complainant is held entitled to the cost of litigation in this Court. The compensation which has been allowed is reasonable. We accordingly sustain the judgment and order passed by the State Commission. This appeal is accordingly dismissed. The respondent complainant is held entitled to the cost of litigation in this Court. The cost is fixed at Rs. 5000/-. 9. The appeal as indicated above, shall stand dismissed.