Chandigarh Housing Board Vs. Vidya Sagar and Others - Court Judgment

Excerpt:
consumer protection act, 1986 - sections 15 and 17/12 - cases referred: 1. iii (1993) cpj 351 (nc). (followed) [para 6] 2. i (1994) cpj 22 (nc)=1994 (1) con.lt 480. (followed) [para 6] 3. i (1995) cpj 7 (nc). (followed) [para 6] 4. i (1994) cpj 72 (nc)=1994 (1) con.lt 527 (nc). (referred) [para 7] comparative citation: 1997 (1) cpj 550.....on his behalf and 19 others (six more persons added later on) filed a complaint in the district forum, chandigarh on 7.9.93 alleging that the houses allotted to them by the chandigarh housing board were to have 1330 sq.ft. covered area and that the tentative cost of each unit was fixed at rs. 2.25 lacs; that the draw of lots was held in 1988 and the allotment letters issued in august, 1989; that the covered area of the ground floor flats is  only 1250 sq.ft. as against the promised 1330 sq.ft.; that the allottees have been made to pay rs. 2,83,700/- per unit as against the estimated cost of rs. 2.25 lacs; that correspondingly there has been a reduction in the cost of upper floors which have been brought down from rs. 2.25 lacs to rs. 2,22,300/- and rs. 2,22,500/- for first and.....

Judgment:

Sada Nand, Member:

1. Shri Vidya Sagar retired Joint Director, Punjab State, the President of Retired Officers Ground Floor Allottees Welfare Association, Chandigarh on his behalf and 19 others (six more persons added later on) filed a complaint in the District Forum, Chandigarh on 7.9.93 alleging that the houses allotted to them by the Chandigarh Housing Board were to have 1330 sq.ft. covered area and that the tentative cost of each unit was fixed at Rs. 2.25 lacs; that the draw of lots was held in 1988 and the allotment letters issued in August, 1989; that the covered area of the ground floor flats is  only 1250 sq.ft. as against the promised 1330 sq.ft.; that the allottees have been made to pay Rs. 2,83,700/- per unit as against the estimated cost of Rs. 2.25 lacs; that correspondingly there has been a reduction in the cost of upper floors which have been brought down from Rs. 2.25 lacs to Rs. 2,22,300/- and Rs. 2,22,500/- for first and second floor flats respectively. They prayed that the District Forum should summon the original account files of the Chandigarh Housing Board and direct them to give break-up and reduce the price. The District Forum after notice to the opposite party and hearing both the parties held that the Chandigarh Housing Board could recover from each complainant a sum of Rs. 2,41,700/- and directed refund of excess amount to the complainants together with interest @ 18% p.a. from the date of deposit till actual refund. Aggrieved against this order of the District Forum, the Chandigarh Housing Board preferred the present appeal.

2. The main pleas are that the District Forum has erred in treating the pleadings of the parties as evidence whereas no evidence was collected from the respective parties as envisaged u/Section 12(2)(b)(i) of the Consumer Protection Act, 1986 with the result that there has been a miscarriage of justice; that the said complaint was not maintainable as it was barred by time inasmuch as respondents were allotted their respective dwelling units in the year 1989 and they took over the possession; that the complaint is not by individuals but in the name of the Retired Officers Ground Floor Allottees Welfare Association, Sector 43B, Chandigarh, whereas relief has been granted to each of the respondents individually with the result there has been miscarriage of justice; that as per Annexure R-4 the covered area of the ground floor allottee comes to advertised 1332 sq.ft. and not 1250 sq. ft.

3. We have heard learned Counsels for the parties and have gone through the record.

4. One of the pleas raised by the learned Counsel for the appellant, Chandigarh Housing Board is that a sum of Rs. 86,500/- per unit and the total claim of 26 was beyond the pecuniary jurisdiction of the District Forum. The respondents on the other side urged that the individual claim is only Rs. 86,500/- and the District Forum rightly entertained their complaint. However, the valuation of the complaint is clearly more than Rs. 5.00 lacs and thus it exceeded pecuniary jurisdiction of the Forum.

5. A persual of the record shows that the prices announced in the brochure are given at ‘A and price charged at the time of allotment are shown at 'B'.

	'A'	'B'
Ground Floor	Rs. 2,35,000	Rs. 2,83,700
First Floor	Rs. 2,28,000	Rs. 2,21,000
Second Floor	Rs. 2,21,000	Rs. 2,23,000

6. The brochure was published long ago and applications were invited by 4.12.86 whereas the draw of lots for the purpose of allotment was held in April 1986 and possession was delivered in September and November, 1989. The increase in price especially in respect of those situated on the ground floor cannot be considered to be a deficiency. At the time of applying for these flats the complainants were made aware by the Chandigarh Housing Board that the price was tentative. This being the condition laid down in the advertisement itself increase or decrease in tentative cost of the flats by the Board could not be challenged before the Forum. The only piece of evidence coming before the District Forum with regard to decrease of built area is report dated 11.2.94 of Mr. T.N. Gupta, Superintending Engineer (Retd) appointed as Local Commissioner, which is neither supported by his affidavit nor any affidavit of the complainant. The fact that Mr. T.N. Gupta was not cross-examined was of course an omission on the part of the Chandigarh Housing Board but when the site plan annexed with the report of Mr. T.N. Gupta is compared with the site plan Annexure P 2 we do not hold that there was a deficiency on the part of the appellant Board requiring interference because there is no substantial evidence that the size of the room and other areas as advertised by the Board were not provided for by it. In fact the complainants have not placed their affidavit(s) in support of their pleas. The learned Counsel for the appellant has referred to Gujarat Housing Board v. Datani Amritlal Fulchand and Ors., III (1993) CPJ 351 (NC), wherein it was observed that pricing was not a factor which fell within the purview of the Consumer Disputes Redressal Forum. This has further been affirmed in Manohar Lal Sharma v. D.D.A. and Another, I (1994) CPJ 22 (NC)=1994 (1) CON.LT 480 wherein the aforesaid earlier view in Gujarat Housing Board v. Datani Amritlal Fulchand's case has been affirmed. Our attention has also been drawn to a more recent judgment in Housing Board Haryana v. Kartar Singh etc. of Hisar, I (1995) CPJ 7 (NC), where too the view laid down in Datani Amritlal Fuchand's case has further been reiterated.

7. In the present case the possession was delivered to Shri Vidya Sagar on 12.9.89 and to Wg. Cdr. Beant Singh on 1.11.89 and to several other complainants on or about in the month of November, 1989 itself. The learned Counsel for the respondent has drawn our attention to a letter dated 13.8.92 from the Chairman of Chandigarh Housing Board to Shri G.S. Oberoi, Vice-President, Retired Officers Ground Floor Allottees Welfare Association, Chandigarh wherein there is a mention that no change regarding price of the ground floor was called for. We are of the view that this letter dated 13.8.92 is not to be taken into consideration for ascertaining the date of cause of action because possession was delivered in September/November, 1989 to most of the allottees. The mere fact that some correspondence was taken up by some of the complainants with the Chandigarh Housing Board or a few other dignitaries could not be a circumstance to establish that cause of action arose subsequently to the allottees. The learned Counsel for the appellant has drawn our attention to P.B. Desai and Others v. M/s. Prajapati Builders and Developers and Others, I (1994) CPJ 72 (NC)=1994 (1) CON.LT 527 (NC) where possession was handed over in 1987 and dispute raised in 1991 was held to be a belated one. In view of the various aspects discussed above the conclusion is that it does not appear to be a fit case where the complainants were entitled to any refund. The impugned order dated 7.3.95 is set aside and the appeal is accepted. The respondents are not entitled to the refund claimed by them. The parties are left to bear their own costs.

Announced. The order be communicated to the parties free of charges.