S.K.AHLUWALIA vs CHIEF ENGINEER. H.P. HOUSING BOARD

THE complainant (Dr. S.K. Ahluwalia) made an application to the respondent (H.P. Housing Board) to purchase a constructed Garage, the tentative cost of which was fixed at Rs. 25,000/- by the respondent. An offer to allot such Garage was made by the respondent to the Flat owner of Kalston Estate Shimla and applications were to be filed by flat owners till 31st of July, 1982 with a deposit of Rs. 2,600/- as earnest money.

THE complainant deposited Rs. 2,000/- on 30.7.82 with his application as earnest money. By a letter annexure R-6 dated 9.5.83, the complainant was informed by the respondent that he had been allotted Garage No. 3, the tentative cost of which was Rs. 30,000/-. THE complainant was directed to deposit 1st installment of Rs. 10,000/- before 20.5.1983. He was also informed that the balance amount of Rs. 8,000/- (After deduction of Rs. 2,000/- deposited as earnest money) would be taken from him at the time of delivery of the possession. The complainant in term of the letter Annexure R-6, deposited Rs. 10,000/- on 19.5.1983 and another amount of Rs. 10,000/- on 20.10.1983.

Thereafter by a letter dated 4.9.1989 (Annexure R-7) the complainant was informed by the Respondent that the cost of Garage had finally been enhanced to Rs. 49,000/- and the complainant should deposit the balance amount of Rs. 27,000/- within the period of 45 days.

THE complainant objected to this demand but the respondent regretted the inconvenience caused to the complainant and informed the complainant that he could get back his amount of Rs. 22,000/- by surrendering the Garage. In this complaint, the complainant alleges that he had to deposit the amount of Rs. 27,000/- under compelling circumstances to get possession of the Garage and he claims an amount of Rs. 2,46,000/- from the respondent as compensation on account of the refund of excess amount paid by him and compensation for mental torture, inconvenience and loss of time etc. The details of the amount claimed is given in the complaint.

THE respondent contested the claim and denied the allegations of the complainant. It is alleged that the complainant is not entitled to any amount by way of refund or as compensation. It is also alleged that the delay in construction of garage was due to unavoidable reasons and the price of Rs. 49,000/- charged from the complainant was in accordance with the prevailing circumstances because the cost of the labour and the material etc. had increased. It is also alleged that according to Clause-13 of the terms and conditions for allotment of garages, the complainant had agreed to pay increased price which was to be determined by the respondent and the complainant is estopped from claiming any refund or challenging the enhanced cost. The respondent also challenged the jurisdiction of the State Commission to entertain the present dispute.

BEFORE entering upon merits of the claim, this Commission, deemed it proper to decide the question of jurisdiction and by our order dated 20.5.1990. We have held that the present dispute is within the jurisdiction of this State Commission. This order may be read as a part of this judgment

WE have heard the complainant and the learned. Counsel for the respondent. The complainant argues that he has suffered heavily due to the delay in the delivery of the possession and that his money remained deposited with the respondent for a period of more than six years. He also argues that he being a Govt. employee has suffered mental harassment due to non-availability of Garage the possession of which was to be delivered to him in 1983-84.

The learned Counsel for the respondent contends that in view of Clause 13 of the Terms and Conditions agreed, the complainant can not have any grievance with respect to the enhancement to the price of the garage, the possession of which was taken by the complainant willingly after taking into consideration the various facts, although he was given an option to get back the amount of Rs. 22,000/- deposited by him subject to the relinquishment of claim to take the possession of the garage.

WE have perused the pleadings of the parties as well as the affidavits and the documents placed on the file by the parties. WE have also considered the contentions of the parties. The admitted facts are that by a letter dated 30.6.1982 (Annexure-R-1), the respondent informed the petitioner that the respondent had decided to construct Garages in housing Colony at Kalston Shimla and the tentative cost of a garage would be Rs. 25,000/-. The complainant was informed that if he was interested in the allotment of a garage then he could send an application with earnest money of Rs. 2,000/- on a proforma. These garages were to be allotted to Flat owners if Kalston Estate and the applicant was a Flat owner in this Estate.

THE complainant filed an application (Ann-R-II) on the proforma on 30.7.1982 and also deposited the amount of Rs. 2,000/- (Earnest Money). The complainant was informed by a letter (Annexure-R-III) that the allotment of garage would be through draw of lots and the tentative cost of the garage was increased to Rs. 30,000/-. The complainant was also directed to send a certificate to the effect that he had read and understood the terms and conditions of the H.P. Self Financing Scheme Kealston and the garage, if allotted would be used exclusively for that purpose only. The copy of the terms and conditions is Annexured-R-IV. The complainant filed the requisite certificate on 7-3-1983 and the same is Annexured R-V. By a letter dated 9.5.1983 (Annexure-R-IV) the respondent informed the complainant that he had been allotted garage No. 3", the tentative cost of which was Rs. 30,000/-. He was directed to deposit Rs. 10,000/- (1st installment) before 20.5.1983 and Rs. 10,000/- (2nd installment) before 20.10.1983. The balance amount of Rs. 8,000/- (after deducting of Rs. 2,000/- earnest money) was to be deposited by the complainant at the time of possession. The complainant was directed to send an affidavit to the effect that the premises were only to be used as a garage for the parking of a light vehicle and the same would not be put to any other use.

THE complainant deposited Rs. 10,000/- on 19.5.1983 and the 2nd installment of Rs. 10,000/- on 20.10.1983.

BY a letter dated 4.9.1989 (Annexure-R-7), the complainant was informed that the final cost of the garage was Rs. 49,000/- and he should pay the balance amount of Rs. 27,000/- within a period of 45 days. The complainant objected to the enhancement in price by a letter dated 7.9.1989. Reference of this letter is in the letter dated 25.9.1989 (Annexure-IV). The respondent informed the complainant that the enhancement of the price was reconsidered by the respondent but the same had already been reduced to the barest minimum and the inconvenience caused to the complainant was regretted. The complainant was informed that delay was on account of variety of reasons associated with such construction and the cost as followed in 1983 could not hold good for 1989. Reference was also made to Clause 13 of the Terms and Conditions for allotment. The complainant was informed that in case he was not willing to take the garage than he was at liberty to surrender the same and the amount deposited by him would be refunded to him with no interest as per rules.

The complainant deposited the amount of Rs. 27,000/- under protest and got possession of the garage in September-October, 1989.

IN this complaint, the main grievance of the complainant is that there was undue delay from the side of the respondent in handing over the possession of the garage and in constructing the same. He had deposited the major amount in 1983-84 for parking his car. The grievance is that an amount of Rs. 22,000/- remained deposited with the respondent for a period of more than six years and he has been deprived of the use of this amount during this period. The further grievance is that protest regarding enhancement of cost, was lodged, but he was simply asked to get back the amount without any interest. He has also a grievance that the respondent has charged an interest at the rate of 1% per annum for the delay in depositing Rs. 27,000/-. The complainant is a Government employee and claims to have been harassed due to non delivery of the garage and the delay in the construction of the same. The Respondent''s contention is only based on Clause-13 on the Terms and Conditions of the agreement. The respondent''s learned. Counsel''s version is that the complainant cannot challenge the enhancement and cannot claim any compensation.

AFTER a consideration of the whole matter we are of the view that in the natural course of events, the consumer i.e. complainant should have been delivered the possession of the constructed garage for parking his car within a reasonable period i.e. in 1984 or near about. The application was filed in 1982 when the tentative cost of the garage was Rs. 25,000/-. In 1983, the tentative cost was raised to Rs. 30,000/- and the bulk of amount of Rs. 22,000/- had to be paid by the complainant before 20.10.1983. The delay in handing over the possession of the garage or in constructing the garage for a period of more than 6 years is not due to any fault or negligence on the pan of the complainant. The respondent was not justified in keeping an amount of Rs. 22,000/- out of a total cost of Rs. 30,000/- for a period of more than 6 years with him and in case the obstruction or delivery of possession of the garage was to be delayed, then the complainant should not have been asked to deposit Rs. 22,000/- before October, 1983. The complainant (Consumer) is not to suffer for such lapses on the part of the respondent. So far as the respondent is concerned, the respondent has claimed the enhanced cost of the garage which was prevailing in the year 1989. Taking a just and reasonable view of the matter, we feel that the complainant has been deprived of the use of Rs. 22,000/- which was deposited by him in 1982-83 with the respondent for a period of more than six years. In case the complainant is required to pay the prevailing price of 1989, then in that case he should be allowed to deduct interest on the amount which he would have earned on Rs. 22,000/- during this period because this amount remained deposited with the respondent. The reply of the respondent in letter dated 25.9.1989 (Annexure-IV) that the refund of the deposited amount could be made to the complainant with no interest is totally unjust, unwarranted and against the principles of natural justice. The respondent has charged and is charging interest at the rate of 18% on delayed payments but to meet the ends of justice we take a very conservative view in the matter and hold that the complainant should be allowed to deduct interest at the rate of 12% per annum on the amount of Rs. 22,000/- for a period of about six years. The interest amount if calculated at the above rate comes to more than Rs. 15,840/-. The complainant is a Flat owner in Kalston Estate and for the purpose of parking his car, he required a garage near his Flat, therefore, under compelling circumstances no other option was left to him except to pay the enhanced amount claimed by the respondent. The complainant had protested to the enhancement and also regarding the delay in handing over the possession of the garage. The complainant has also claimed some amounts on account of mental torture, inconvenience and loss of valuable time etc. but there is not evidence to substantiate these claims. The quantum of compensation has to be quantified after exercising a judicial description so that it is a just and reasonable compensation in the facts and circumstances of a particular case.

IN the present case we are of the confirmed opinion that a total compensation of Rs. 16,000/- should meet the ends of justice which amount has been calculated as loss of interest and the inconvenience etc. caused to the complainant.

AS a result of the above discussions we order that an amount of Rs. 16,000/- be paid to the complainant by the respondent within a period of one month from today. No order as to costs. Ordered accordingly.