M.P.Housing Board vs AJAY BAFNA

THIS appeal has arisen from an order dated 8.2.1995 passed by District Consumer Disputes Redressal Forum (hereafter referred to as District Forum) Bhopal in Complaint Case No. 223/93.

THE facts of the case briefly stated are that respondent/complainant in original case, applied for registration of one H.I.G. (Duplex) house under Scheme No. 8/86 of the appellant in E-7 Extension, on hire purchase basis. It was proposed to construct 71 houses in all out of which 32 were to be allotted on hire purchase basis. Claimants being more, the houses were allotted by drawing lottery on 31.1.1989. However, by mistake 33 persons were selected in lottery, respondent was one of them, while last person in the list was one Shri Ashok Kumar Panjwani. Excluding Shri Panjwani who was 33rd, all the others were directed to execute agreement and take possession of the houses. Allotment orders were issued accordingly. However, the father of respondent requested by his application dated 6.4.1989 received on 17.4.1989, for time on behalf of his son to execute agreement and take possession by end of May, 1989 (Annexure 1). On this application time was granted till 30.5.1989 (Annexure 2). Meanwhile Shri Panjwani approached the Civil Court, on detection of mistake in drawing lottery, and filed a Civil Suit No. 72-A/89. THE Civil Judge, vide his order dated 19.4.1989 (Annexure 3) directed the Housing Board to maintain status quo till further orders and not to allot in future any Duplex HIG. On receipt of this order, possession of HIG (Duplex) allotted in the name of the complainant could not be delivered to him, when he approached the Housing Board (appellant) after 30.3.1989, as that would have amounted to disturbing the status quo. It is important to record that, barring respondent who requested for time, formalities in respect of all other allottees were completed before 19.4.1989 when the Court orders were received, and hence all of them were given possession. Only respondent could not be given possession because of Court orders. Having been frustrated in his attempts to get possession, the respondent approached the District Forum, Bhopal and prayed for directing the Housing Board (appellant) to pay Rs. 72,000/- as compensation and Rs. 20,000/- for mental agony and inconvenience. THE District Forum after hearing both the parties, held that appellants were guilty of deficiency in service because of delay in handing over possession. District Forum held that Court order did not prohibit the appellants from giving possession of the allotted house. THE order only prohibited future allotment. District Forum also ordered the appellant to pay Rs. 10,000/- for mental agony and cost Rs. 1,000/-. This order is subject matter of present appeal. In this appeal, the appellants have submitted that they were keen to hand over possession, but were equally keen to respect the orders of the Civil Court. They averred that appellant was under legal duty not to disturb the status quo so as to commit Contempt of Court. By the time the Court order was received only the possession of house No. 23 allotted to respondent, remained to be handed over and that too because of request of respondent for time, which was granted by Housing Board. As such there was no other way before the Housing Board (appellant) but to maintain status quo by not delivering possession. Appellant further averred that their sincere desire of giving possession can be judged from the fact that they entered into compromise with Shri Panjwani by promising him another house and handed over possession of house even before vacation of stay orders. All these things do take time and therefore appellant prayed for quashing the order of the District Forum on following other grounds other than the one narrated in this para. (a) District Forum committed an error in fixing the quantum of damages. The economic rent mentioned in the deed could not be the basis of assessing the actual loss. (b) Appellant cannot be saddled with payment of compensation for obeying the law in a bona fide manner.

We have heard both the parties and have also perused the record of the case. Perusal of the case reveals that appellant committed a mistake by drawing lottery of 33 people, when only 32 were to be allotted on hire purchase basis. This fact is undisputed. It is also undisputed that respondent requested for two months time to complete formalities which was granted. Stay order passed by the Civil Court was received on 19.4.1989, when all formalities regarding handing over possession of allotted houses were over in respect of all other houses except No. 23 allotted to respondent. Thus the difficulties which arose in this case were due to, (i) drawing lottery of 33 people, and (ii) request for two months extension by respondent. It is also relevant and undisputed that the allotment of house No. 23 to respondent was maintained and complaint is only in respect of delay in handing over possession. We shall now examine whether the delay in handing over possession was due to bona fide reason or not. The respondent in his complaint has averred that Housing Board could have given him the possession as order of Civil Court was in respect of future allotments. He also averred that he started writing to Housing Board in 1989 soon after signing agreement but Housing Board took no action for more than a year. He, therefore, alleged undue and inordinate delay on the part of Housing Board. District Forum in their order has also taken similar view of the Civil Court order dated 19.4.1989 and held Housing Board (appellant) guilty of deficiency in service. We have considered the matter and are of the opinion, that District Forum has not applied its mind to the order regarding maintaining status quo but have concentrated on the word future allotments. Perusal of the record shows that only 32 houses were to be allotted under hire purchase scheme, as such there was no scope for future allotment and therefore laying stress on the word future allotment of the order would render the stay order meaningless. Therefore, logically the emphasis ought to be on maintaining status quo. Proceeding with this logic the efforts or lack of them of the appellant about handing over possession were bona fide and in obedience of the requirement of law. It has been argued that Housing Board should have got this stay vacated. We feel that such argument has no meaning. District Forum in their order have recorded in para (9). "It is true that the Courts do take their own time to decide a particular matter and one party or the other party cannot compel the Courts to do a particular act in particular time". We also find from record that possession of House No. 23 was given to respondent, but after 1 years. In view of the peculiar circumstances, we cannot agree with the findings of the District Forum that appellants purposely delayed handing over possession and therefore we hold that appellant cannot be held guilty of deficiency in service. Also we do not find ''any reason to award heavy compensation for delay in handing over possession, which was not entirely due to their carelessness or lethargy in doing their duty. In our opinion a nominal compensation of Rs. 5,000/- will meet the ends of justice.

WE shall now consider whether order regarding payment of compensation of Rs. 72,000/- is justified. District Forum has relied on agreement between the two parties and particularly Clause 11(2) of the agreement. It would be relevant to observe here that District Forum in their order (para 11, last line) have wrongly entered June, 1989 as the month in which agreement was signed. As per record the hire purchase agreement was signed on 22.12.1990. Therefore this agreement is valid only from this date and not earlier. Possession was given on 6.2.1991. WE have perused the Clause 11(2) relied upon by District Forum and are of the view that it cannot be the basis of giving compensation to the respondent. In view of our findings we do not find the respondent eligible to receive any compensation. Housing Board has not escalated the cost of the house and therefore delay has only caused him frustration but no monetary loss. Considering the whole case and for the reasons recorded in earlier paragraphs we find the appellant guilty of a glaring mistake in drawing lottery of 33 persons when 32 houses existed. We also feel that appellant should have continuously kept the respondent informed with the action taken or proposed to be taken by them in view of the stay order. This would have helped considerably to reduce frustration of respondent. We, therefore, feel that compensation of Rs. 5,000/- will meet ends of justice. We also do not see any justification to interfere with the order regarding costs ordered by District Forum.

IN the context of discussion in the preceding paragraphs the appeal succeeds partially and is therefore partially allowed. Order dated 8.2.1995 of District Forum Bhopal is modified as under: "Opposite party (appellant) is ordered to pay to the respondent Rs. 5,000/- for mental agony and cost of the proceedings which is assessed as Rs. 1,000/- within one month of receipt of this order. Failure to pay the said amount in one month by the appellant to respondent, shall carry 12% interest on this amount till date of payment".

No order as to costs about proceedings in the Commission. Appeal partly allowed.