Lekh Raj vs Assistant Engineer, H.P. Housing

R.K. Agrawal, J

This Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986 (for short "the Act"), has been preferred by the Complainant/ Petitioner herein challenging the legality and correctness of the order dated 05.10.2017 passed by the Himachal Pradesh State Consumer Disputes Redressal Commission at Shimla (for short "the State Commission") in First Appeal No. 359/2016. By the impugned order, the State Commission has partly allowed the appeal filed by the Complainant, set aside the order of the District Forum and directed the Respondent Housing Board to levy the prospective maintenance charges for the months of February and March, 2015 in accordance with the law.

Succinctly put, the facts giving rise to the present Revision Petition, as culled out from the Complaint, are that the Complainant was allotted HIG plot No. 16 in the Housing Colony Bangana, District Una on hire purchase basis by the Opposite Party, Himachal Pradesh Housing and Urban Development Authority (for short the "Development Authority") upon which he built a house. As per condition No. 24 of the agreed terms and condition of the allotment, the Development Authority issued a bill No.3506 dated 08.01.2015 for ₹808/- towards the maintenance charges for common portion and common services to the Complainant for the period from 01.10.2014 to 31.03.2015. The bill was to be paid within a period of 30 days from the date of issue of bill and after the due date, the amount payable was ₹865/-. It was also stipulated in the bill that in case the amount is not paid within the prescribed time, the interest @ 14% p.a. would be charged and the basic amenities like water/sewerage connection would be disconnected. On 25.02.2015, when the Complainant went to the Opposite Party to deposit the maintenance charges, he was asked to pay penalty of ₹40/- as there was delay of 18 days in deposit the amount. The amount of ₹848/- was deposited under protest by the Complainant. Subsequently, the Complainant made a representation to the Development Authority stating that no interest/penal interest before 01.04.2015 was payable on advance depositing of the maintenance charges. According to him, the last date for payment of maintenance charges upto 31.03.2015 was 01.04.2015 and not 07.02.2015. There is unfair trade practice on the part of the Development Authority in charging ₹40/- as penalty for late payment. Having failed to elicit any positive response to his representation and left with no other option, he filed a complaint in the District Forum seeking a direction to the Development Authority to pay ₹5,000/- for mental agony and pains and ₹5,000/- towards litigation charges.

Upon notice, the Development Authority contested the Complaint, by filing their Written Version. While raising the preliminary issue that the complaint was vague, baseless and filed with malafide intention, on merits, it was pleaded that the bill dated 08.01.2015 towards maintenance charges from 01.10.2014 to 31.03.2015 was to be deposited within 30 days from the issuing date failing which penal interest was to be charged @ 5% upto the last date of the period for which the concerned bill was raised and thereafter @ 14% interest was to charged on the maintenance charges. It was also denied that the last date of payment of the bill was 31.03.2015.

On appraisal of the evidence available on record, especially the condition No.24 of the terms and conditions of the allotment, the District Forum came to the conclusion that the Complainant had already availed 2/3rd of the services by which date he was required to pay maintenance charges and advance maintenance charges were demanded only 1/3rd of the period of the maintenance charges. As per condition No.24 of the allotment, the Complainant was under an obligation to pay the maintenance charges every month, but the Development Authority instead of claiming such charges on monthly basis made a demand of six months basis. Since the demand was raised after the service was availed for the period of about more than three months and one month time was given to pay the maintenance charges, there was no deficiency in service on the part of the Development Authority. Consequently, the complaint was dismissed.

Aggrieved, the Complainant carried the matter further in Appeal to the State Commission. Relying on the condition No.24 of the allotment, the State Commission concluded that the Development Authority has failed to substantiate as to why the maintenance charges were not demanded monthly from the complainant; it could not take advantage of its own laxity and it was not legally entitled to demand lump sum charges for six months for maintenance. Consequently, while partly allowing the appeal, the State Commission had modified the order of the District Forum and directed the Development Authority to demand prospective maintenance charges for the months of February 2015 and March 2015 in accordance with law.

Hence, the present Revision Petition.

We have heard the Petitioner appearing in person and Mr. Arush Matloia, Learned Counsel for the Development Authority at some length and also perused written arguments filed by them.

The main thrust of the arguments of the Petitioner is that the imposition of the penalty of ₹40/- by the Development Authority is in violation of the terms and conditions of the allotment as the maintenance charges for the period from 1.10.2014 to 31.03.2015 were deposited by him on 25.02.2015 well before the last date of 31.03.2015; earlier, the same and similar matter between the same parties qua maintenance charges from 01.04.2014 to 30.09.2014, was decided by this Commission, vide order dated 01.06.2017, in R.P.NO.1938/2016 in favour of the Complainant but the State Commission has refused to take cognizance of the said order; the Hon'ble State Commission has committed a grave error in directing the Development Authority to charge the maintenance charges for the month of February and March, 2015 in accordance with law, however, the same had already been paid by him on 25.02.2015 along with penalty; the Development Authority has no right to impose the penalty as no bye-laws have been framed by them regarding the manner for claiming penalty on the maintenance charges.

As against this, Learned Counsel appearing for the Development Authority submitted that the Complainant was given 30 days time to make payment of the maintenance charges but since there was delay of 18 days in depositing the charges, the penalty of ₹40/- was rightly imposed for late payment; Petitioner had already availed of 2/3rd of the services by which date he was required to pay the maintenance charges and advance maintenance charges were demanded only for 1/3rd of the period of maintenance charges; thought in terms of the condition no.24 of the allotment letter, the maintenance charges had to be demanded on monthly basis but demand for six months was raised after the services were availed of for the period of about more than three months and one month time was given to pay the maintenance charges.

The short question falling for our consideration is whether there was any deficiency in service on the part of the Development Authority in charging ₹40/-as penalty for late payment of the maintenance charges, in terms of condition No.24 of the allotment letter.

Therefore, before examining the merits of the rival stands of the parties, it would be apposite to refer to Condition No. 24 of the agreed terms and conditions of the allotment, which reads as under:-

"24. The allottee shall pay every month service charges for the maintenance of common portion and common services to discharge such functions. The owner shall determine the amount of such charges and the decision of the owner in this behalf shall be final and binding on the allottee. In case maintenance charges are not paid within the prescribed period, the allottee will be liable to pay penal interest @ 18% p.a."

A bare perusal of the aforesaid condition reveals that the maintenance charges for common portion or common services were payable by the Allottee to the Development Authority on monthly basis only. However, in the instant case, the Bill No. 3506 dated 08.01.2015 was issued to the Petitioner by the Development Authority demanding a lump sum amount of ₹808/- towards the maintenance charges for six months from 01.10.2014 to 31.03.2015. The Development Authority was not legally entitled to ask to the Petitioner to pay lump-sum maintenance charges for six months against the letter and spirit of agreed terms and conditions of the allotment. They had failed to adduce any evidence to show as to why the maintenance charges were not demanded by it on monthly basis or they were authorized to demand the lump-sum maintenance charges for a period of six months. The State Commission has rightly observed that the Development Authority could not be permitted to take advantage of its own laxity. To put it differently, could the Authority punish the allottee for its own deficiency. Obviously, the answer has to be in the negative. We agree with the view taken by the State Commission that since the Petitioner had already availed of 2/3rd of the services, i.e, for three months from October 2014 to December 2014 when the demand was raised vide Bill No.3506 dated 08.01.2015 and one month's time was given to pay the maintenance charges on or before 07.02.2015, the maintenance charges for remaining 1/3rd of the Services, i.e, for the months of February and March, 2015, would be charged by the Development Authority in accordance with the law. In our view, the decision of the State Commission is based on proper appreciation of the evidence on record and correct application of mind.

For the afore-going reasons, we do not find any illegality or material irregularity in the impugned order, warranting our interference in Revisional Jurisdiction. Resultantly, the Revision Petition fails and is dismissed accordingly, leaving the parties to bear their own costs.