Housing Commissioner Up Avas Vikas Parishad & Ors vs Shiv Charan Sagar

A.P. Sahi, J, President Member

This Revision Petition was heard on 04.12.2023 and after hearing the learned counsel for the Revisionists and the Respondent/Complainant in person, the following orders were passed:-

“This Revision Petition has been filed by the Housing Commissioner, UP Avas Vikas Parishad & Ors, questioning the correctness of the order of the State Consumer Disputes Redressal Commission, Uttar Pradesh, Lucknow in Appeal No. 641 of 2008. The Respondent, Shri Shiv Charan Sagar applied for a MIG house in the Avas Vikas Sikandara Yojna of the Housing Board, which was meant basically for the oppressed classes including Scheduled Castes. The allotment in question is in relation to a constructed house offered on a plot of 121.89 square meters being house No. 599 of Sector 5 of the said scheme. The letter of allotment was issued on 19.08.1991, which indicated that the entire price of the said construction would be Rs.1,89,650.50/- and there were other emoluments which were payable.

The initial deposit which was around Rs.30,000/- approximately had to be made and the balance amount of Rs.1,59,400/- was to be paid in 120 monthly instalments with interest @ 14.5%. The first instalment was to commence from 01.09.1991, which was of the amount of Rs.2525 per month. In the event of any default in payment of the instalments, the same would attract 18% penal interest.

Since, the possession of the said premises was to be delivered within 15 days and was not done, the Respondent admittedly after depositing the first instalment, declined to deposit the future instalments. Consequently, his allotment was cancelled on 03.03.1992. It seems the Respondent represented the matter, whereafter some payments were accepted on 14.11.1991, and the allotment was revived in 1995.

This allotment was restored by the order of the Deputy Housing Commissioner dated 24.01.1995.

The Respondent apparently seems to have made a request for a one time settlement for which information was given on 21.12.2021 but that did not work out.

Neither possession was given nor did the Respondent deposit the installments. This situation continued when on 05.03.2005 a demand was raised by the Housing Board from the Respondent calling upon him to make the balance deposit and complete the formalities. This demand was for Rs.7,50,126.80/- with a further demand of Rs.20,000/- for non-judicial stamps for conveying the property.

The Respondent moved a representation that no interest should be charged from him, but no action was taken by the Housing Board, whereafter the Respondent filed CC/225/2005 before the District Forum.

The contention of the Respondent was throughout that he is not liable to pay any interest as claimed by the Housing Board in the said demand letter of 05.03.2005, and that possession should be handed over to him after receiving the balance amount of the cost price of the premises.

The District Forum disposed off the complaint by directing that the possession of the premises be given to the Respondent provided the Respondent pays 6% interest on the total cost of the house with effect from the date of allotment that is 14.11.1991 till date. The Respondent was also awarded Rs.1500/- as litigation expenses and the possession was directed to be handed over within 45 days, provided the Respondent made the deposit of the balance amount of the premises together with 6% interest thereon with effect from 14.11.1991. This order of the District Commission was delivered on 26.02.2008.

An appeal was filed by the Respondent questioning the correctness of the order particularly on the award of 6% interest on the ground that he is not liable to pay any interest, in as much as possession was not handed over and therefore the Respondent should not be made liable to pay any interest on the said amount.

It is to be noted that the Housing Board did not challenge the said order dated 26.02.2008 of the District Commission and accepted the same.

The Respondent on 25.03.2008, admittedly deposited a sum of Rs.1,43,363/- in the account of the Housing Board as the balance amount of the cost price of the premises and also filed the appeal challenging the interest part.

The State Commission in the said appeal took notice of the amount deposited which fact is not disputed by the Housing Board, and then the State Commission went on to hold that the imposition of the interest @ 6% on the Respondent was unjustified and therefore the order of the District Forum was modified and a direction was issued that since the Respondent has already deposited the balance amount of the cost price, the possession of the premises should be handed over within one month from the date of the judgment, which was delivered on 24.04.2018.

It is thereafter that the Housing Board has come up questioning the order of the State Commission, whereby the payment of interest of 6% as was granted to the Housing Board by the District Forum has been waived and the appeal has been allowed to that extent.

The contention of the learned Counsel for the Housing Board is that the order of the District Forum had been accepted and treating the case to be an exceptional one, the payment of reduced interest @6% as awarded by the District Forum was acceptable. Thus, the order of the State Commission has been questioned contending that so far as the Respondent is concerned he had only paid Rs.27,612/- plus Rs.8,899/- on 18.11.1991, whereafter he clearly defaulted in paying the monthly installments of Rs.2525/-, which were 120 in number. This position, according to him continued till 2005, when the demand was raised on 05.03.2005, which was not honoured by the Respondent and instead he filed the Consumer Complainant before the District Forum.

In the above circumstances learned Counsel contends that from 1991 till 2005, for 14 years no payment was made by the Respondent and hence the State Commission should not have interfered with the award of 6% interest which according to the learned Counsel for the Housing Board was justified.

Mr. Shiv Charan Sagar who is present in person submits that as a matter of fact non-delivery of possession, which was a condition precedent of the initial deposit made, within 15 days whereof was not honoured. This was a clear deficiency in service. He submits that he stopped paying instalments only because possession was not handed over, which according to the letter of allotment was to be done within 15 days of the initial deposit, which was done on 18.11.1991. This also amounted to an unfair trade practice.

It is this impasse which ensued on account of non-payment of instalments by the Respondent and non-delivery of possession by the Housing Board, which resulted in the dispute that ultimately culminated into the filing of the Consumer Complaint in the year 2005, the facts whereof and the events have been recorded herein above.

The Housing Board maintains that since the conditions of the allotment letter have been violated therefore the Respondent is not entitled to any concession, but nonetheless since the Housing Board has not filed any appeal questioning the order of the District Forum, the order of the State Forum should be set aside and the order of the District Forum should be upheld.

Mr. Shiv Charan Sagar contends that if no possession was delivered, no penalty of interest can be imposed on him and he has already paid the balance of the cost price, whereafter he cannot be called upon to pay any interest and hence the order of the State Commission should be upheld.

The entire arguments were heard today. Put for delivery of judgment on 15.12.2023.”

From the above narration, it is clear that the District Forum disposed of the Complaint by allowing the relief of possession but on payment of the balance cost price by the Respondent together with 6% interest thereon.  The direction was to handover possession within 45 days.  The Respondent deposited a sum of Rs.1,43,363/- but he filed an Appeal before the State Commission resisting the payment of 6% interest on the ground that this was unjustified as there was a failure of service on the part of the Housing Board in handing over possession in terms of the allotment dated 19.08.1991 read with the proceedings of 14.11.1991.  Since the possession according to the said terms had not been handed over to the Respondent in spite of the payments of initial deposits as required having been made, the Respondent stopped the payment of installments.

It is undisputed that possession was not handed over and then a demand of Rs.7,50,126.80 was made on 05.03.2005.

The District Forum therefore rightly found that the Respondent was entitled to possession on the payment of the balance amount of the cost price.  The District Forum went ahead to award 6% interest on the unpaid amount.  The Housing Board did not challenge that order and as such to that extent the direction of the District Forum to handover possession within 45 days thus became final.  Consequently, the Respondent is entitled for possession as he claims to have also paid the balance of the cost price according to his calculations.

Learned counsel for the Revisionists contends that the award of interest of 6% should be upheld and that the order of the State Commission waiving-off the same should be set aside.  In effect, the Housing Board has accepted the order of the District Forum and the handing over of the possession subject to the payment as directed by the District Forum.

There can be no doubt that the cost price had to be paid by the Respondent in terms of the order of the District Forum.  What he contends is that there was no fault on his part and therefore interest should not be saddled on him.  The Respondent has already deposited the balance of the cost price of Rs.1,43,363/- on 25.03.2008 and hence the only dispute remains with regard to the payment of interest as per the order of the District Forum from 1991 to 2008.

On the one hand, no possession was delivered to the Respondent in spite of having received the initial deposits as per the letter of allotment dated 19.08.1991.  On the other, the initial deposit which has been referred to and admitted by the Revisionists to the extent of Rs.27,612.50 and Rs.8,899.10 in Para-5 of this Revision Petition therefore is an evidence of the fact that the Respondent in spite of being entitled to possession was not handed over the same and the said amount was retained by the Housing Board with no benefits enuring to the Respondent.

This amount therefore was retained by the Housing Board with no benefit to the Respondent.  The interest therefore accrues on that amount till the date of the possession and the payment made by the Respondent on 25.03.2008 without possession till date would also invite interest thereon.

The State Commission came to the conclusion that since the possession had not been handed over, there is no justification for imposing 18% penal interest on remaining installments.  It was also held that non-delivery of possession amounted to deficiency of service.  The State Commission concludes that in view of the above, the District Forum committed an error by imposing 6% interest on the remaining cost of the house that was set aside.

As noticed in Para-7 above, the initial deposit made in 1991 by the Respondent and the subsequent deposit on 25.03.2008 is retained by the Housing Board and till date the possession has not been handed over to the Respondent even though he has deposited the amounts as indicated above against the cost price of the premises.  This non-delivery of possession in spite of having received the payment as noted above therefore is a clear deficiency in service and the Respondent/Complainant cannot be faulted on any ground, much less on the ground of non-payment of installments.  It is true that no installments were paid by the Respondent from 1991 to 2008 but no possession as promised under the letter of allotment was delivered either.  The terms of possession under the letter of allotment have been clearly breached by the Housing Board.  The Housing Board was bound to deliver possession after completion of the formalities to the Respondent way back in 1991 itself.  It is not the case of the Housing Board that the Respondent had committed any default in the payment of initial deposits as per the allotment letter.  In the absence of any non-compliance of the terms of allotment, the Respondent cannot be held liable for interest on the balance of installments when the Housing Board itself did not deliver possession as per the terms of the letter of allotment.  The question of penalizing the Respondent with penal interest for the omission of the Board in handing over possession therefore does not arise.  The Board, in all probability, must have earned interest on the amounts already paid by the Respondent.

The order of the State Commission on the peculiar facts of this case is equitable, inasmuch as the Housing Board also had the benefit of retaining the money of the Respondent without delivery of possession from 1991 onwards till today.  The Respondent has already made payments regarding the cost price on 25.03.2008.

In this view of the matter and the facts of the present case, there does not appear to be any material irregularity in the order of the State Commission to interfere with the same.

However, since this Revision Petition is being disposed of on the peculiar facts of the present case, the waiver of interest either by the District Forum reducing it to 6% or the complete waiver by the State Commission shall not be treated as a precedent for any other case.

The Revision Petition is accordingly dismissed subject to the above observations.  Pending application, if any, stands disposed of.