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In this revision petition filed by
Petitioner/Complainant, there is challenge to impugned order
dated 20.06.2007 passed by State Consumer Disputes Redressal Commission,
Haryana, Panchkula (for short, ‘State Commission’).
2. Brief fact are, that Respondent/Opposite Party invited applications
for allotment of plots in Sector-15, Sonepat. Accordingly, Petitioner
applied for a plot under category of 14 Marlas @ 1,700/- per Sq. yard and
deposited Rs.63,400/- as earnest money being 10% of the total cost of the
plot on 22.1.2001 with respondent. The draw of lots was held on 14.3.2001.
Petitioner was declared successful and was allotted plot vide letter dated
27.3.2001 but no plot number was allotted. Thereafter, allotment of plot
No. 2740-C was communicated to the petitioner as per letter dated
17.09.2004, so to say after expiry of 3½ years from the date of allotment.
The grievance of petitioner he being an Advocate was in need of his own
house but due to delay on the part of the respondent he had taken rental
accommodation in Sector-14, Sonepat. During this period, cost of plot
increased @ Rs. 263/- per sq. yard over the original price @
Rs.1,700/- per sq. yard when applications for allotment of plots were
invited. Thus, total price of plot has been shown as Rs.7,39,100/-.
It is alleged, that respondent enhanced the value of the plots arbitrarily
by putting extra burden on petitioner as well as other allottees, which was
not justified. Petitioner deposited Rs.1,95,285/ vide D.D. No. 072127 dated
16.10.2004 and D.D. No. 006597 dated 16.10.2004 in favour of respondent and
he had also to pay interest @ 15.5% per annum on the remaining 75% of the
cost of the plot which was to be paid within six months in equal
installments. It was further stated, that allotted plot is 10-12 ft. deep
from the road side, whereas abutting plots of HUDA were at even level. At
the time paper possession of the plot was given to him on 27.10.2004 the
site of the plot had been filed with 5 ft. deep water and at the time of
filing the complaint the situation was the same. The roads, sewerage and water
supply pipes were totally broken and for that reason plot in question was
not worth fit for construction. It is also stated, that possession of plot
had not been delivered to him. Accordingly, it was prayed that directions
be given to respondent not to charge the penal interest @ 15% P.A. on the
remaining 75% cost of the plot; not to recover the enhanced price of the
plot @ Rs.1,963/- per sq. yard; to pay interest @ 11% on the earnest money
deposited by the petitioner; to pay Rs.3,00,000/- as damages on account of
deficiency of service, mental agony and pain and interest @ 18% per annum.
3. Respondent in its written statement has stated, that at the time
when petitioner had applied for allotment of 14 Marlas plot, he had
deposited Rs.63,400/- as registration fee. It is stated, that advertised
cost of the plot per sq. yard was tentative as mentioned in the brochure
and after the draw of lots was held on 14.3.2001, petitioner was declared
successful and was informed as per letter dated 17.3.2001 in this regard.
The petitioner had deposited Rs.1,95,285/- towards the price of the plot
and possession of the plot was handed over to him. It is further averred
that, cost of the plot being tentative could be finalized after 7 years
from the date of allotment as per terms and conditions (w) of the “HIRE
PURCHASE TENANCY AGREEMEN”. The claim of interest @ 15.5.% per annum was
justified as mentioned in the brochure itself. It is further stated, that
as per condition No. 6(iv) it was clearly mentioned that respondent would
not be responsible for levelling uneven sites. Accordingly, it was prayed
that complaint merit dismissal.
4. District Consumer Disputes Redressal Forum, Sonepat (for short,
‘District Forum’) vide order dated 25.01.2006 accepted the complaint and passed
following order;
“this Forum directs the respondents not to charge penal interest at
the rate of 15.5% per annum on the remaining cost of the plot which are to
be paid in 6 equal installments and further not to charge the enhancement
price and not to enhance the original price of the plot which was enhanced
from Rs.1,700/- per sq. yards to Rs.1,963/-. The respondents are also
directed to deliver the actual physical possession of the plot to the
complainant and to level the plot in question and also directed to provide
all the basic amenities like water supply, sewerage , electricity etc. The
respondents are durther directed to pay interst at the rate of 11% per
annum on the earnest money paid by the complainant at the time of
submission of the application by the complainant till the allotment of plot
in favour of the complainant was made. To make it more clear, the
respondents are directed to pay interest at the rate of 11% per annum on
the amount of Rs.63,400/- w.e.f. 22.01.2001 the date of submission of the
application, till 17.09.2004 the date of on which the allotment of plot no.
2740-C was made in favour of the complainant. Since the complainant has
been able to prove the deficiency in service on the part of the
respondents, the respondents are also directed to compensate the
complainant to the tune of Rs. two thousand only for rendering deficiency
service as well as for causing mental agony and harassment.”
5. Being
aggrieved, petitioner filed (First Appeal No. 694 of 2006) before State
Commission, which allowed the same and dismissed the complaint, vide
impugned order.
6. Hence, this petition.
7. We have heard the petitioner who himself has argued as well as
counsel for respondent and gone through the written arguments as well as
the record.
8. It is stated by petitioner, that allotment of plot was on freehold
basis and not on hire purchase basis. This basic fact has been
totally ignored and not considered by the State Commission. Therefore, he
is an allottee and not a ‘Hirer’. The allotment letter dated 17.09.2004,
which contains the entire terms and conditions of the allotment and
according to those conditions, he is an allottee.
9. It is further stated by petitioner, that brochure issued by
respondent, also mentions the allotment of plots on freeholds basis and no
hire purchase agreement was mentioned therein.
10. It is further argued by petitioner, that without sanction of Zonal
Plan, actual physical possession of plot could not be handed over. Lastly,
plot is in a very low lying area, so he should not be charged interest on
the installments.
11. On the other hand it is contended by learned counsel for respondent,
that advertised cost of plot per square yard was tentative. After
allotment, petitioner had signed the Hire Purchase Tenancy Agreement and
physical possession of plot was given to him. Thereafter, since cost of the
plot was tentative petitioner is liable to pay the balance amount along
with interest. Thus, impugned order passed by State Commission is perfectly
valid.
12. State Commission in its order observed;
“Even in the allotment letter bearing memo No. 3706 dated 17.09.2004
the price of the plot has been mentioned to be Rs.8,13,010/- being
tentative. The complainant was required to pay 15% of the sale price being
Rs.1,21,375/- along with the amount of Rs.73,910 total Rs. 1,95,285/-for
preferential/corner plot within 30 days from the date of issue of the
letter. The balance remaining 75% of the price was to be paid in 6 yearly
equated instalments with interest, @ Rs.1,48,635/- and the first yearly
instalment was to be paid after one year when the allotment of the plot was
offered to the complainant. It is also stipulated in Clause-7 of the
allotment letter that each instalment shall be payable by the 10th of
the month following the month in which it falls due and in case the
instalment is not paid by the stipulated date, penalty not exceeding 25% of
the amount due shall be imposed. The building was to be completed within
two years from the date of possession of the plot in accordance with the
design supplied by the Housing Board. At the same time Clause-8 of the
allotment letter clearly specified the property shall continue to belong to
the Board until the entire consideration money together with interest and
other amount, if any, due to the Board on account of sale of the plot is
paid. The allottee shall have no right to transfer by way of sale gift,
mortgage or otherwise the plot/building or any right or title or interest
therein till the full price is paid to the Board except with the prior
permission of the competent authority.
Hire Purchase Tenancy Agreement has also been
executed and signed by the complainant on 27.10.2004 coupled with the
Tenancy Stipulations, which is Schedule-II of the above stated agreement.
This Hire Purchase Tenancy Agreement has been executed in terms of
Regulation 11(4) of the Regulations of the Appellant-Board. In this Tenancy
Agreement it has been clearly mentioned that the total tentative price of
the tenement had been worked out as Rs.8,13,010/-. It also incorporates the
other amount which has also been paid by the complainant. The other conditions
which have been notices in the allotment letter form part of this Tenancy
Agreement. It has been specifically stated in Clause-3 of the agreement as
under:-
“(3) The owner hereby agrees after the expiry
of the hire purchase period to transfer the said property to the, hirer by
executing conveyance deed with him in the prescribed form provided that he
has paid all the dues of the owner and of the public bodies, if any prior
to such execution. The hirer thereafter shall cease to be a tenant and
become the owner of property subject to the provision of the said
Conveyance Deed.”
From the above stated terms incorporated in the
document produced on the record it is clearly spelled out that the
complainant was duty bound to pay the installment amount in the manner
detailed therein. Therefore, in case of default of the payment of the fixed
instalment amount, the complainant had to incur the liability of interest.
It is not the case of the complainant that he has paid the instalment of
the above stated allotted plot then the period specified to the opposite
parties. The grievance made from the side of the complainant that allotment
of the plot as per letter dated 27.03.2001 was made to him after a period
of 3½ years of the draw of lots held on 14.03.2001 and he was declared
successful and was so intimated vide letter dated 27.03.2001 and as such is
inconsequential because Clause-5 of the brochure only provides that the
possession of the plots would be handed over after completion of
development works on AS IS WHERE IS BASIS. Therefore, the complainant has
clearly agreed to the above stated stipulation mentioned in the brochure at
the time when he had applied for the allotment of the plot. The other
prayer that he is not liable to pay interest in terms of the above stated
document, as such, cannot be accepted. He has to pay interest for the
delayed payment of the instalments including the amount. Further the cost
of the plot is tentative and has to be finalized within a period of 7 days
of the allotment as per terms and conditions No. 2(w) of the Hire Purchase
Tenancy Agreement, and for that reason escalated cost, as such, cannot be
claimed as detailed therein. Thus, there is no force in the stand taken
from the side of the complainant.
Even otherwise, the complaint is liable to be
rejected on the legal ground that the complaint is not maintainable in
terms of Annexure A-2 noted above. From the terms of the Hire-Purchase
Tenancy Agreement it is clearly spelled out that the hirer shall holds the
property as a tenant for the Hire-Purchase period which is fixed for the
Hire Purchase Agreement. As the complainant has not paid total instalments
amount as per Hire Purchase Agreement in terms of the letter and no
conveyance-deed has been executed in his favour. Therefore, on the date
when the complaint was filed, he was a tenant and as such he could not
invoke the jurisdiction of the District Forum by filing the present
complaint alleging deficiency of service of service to the opposite parties.”
13. It is an admitted case of both parties, that petitioner was allotted
the plot in question vide allotment letter dated 17.09.2004. As per this
letter, plot has been allotted to the petitioner on free hold basis as per
terms and conditions mentioned in the allotment letter which are subject to
the provisions of Haryana Housing Board Act, 1971. Thereafter, Hire
Purchase Tenancy Agreement was executed between the parties on 27.10.2004.
The relevant provisions of this Agreement read as under;
“ HIRE-PURCHASE
TENANCY AGREEMENT
THIS INDETURE MADE THIS 27 day
of 10
Two Thousand 2004 BETWEEN
THE HOUSING BAORAD, HARYANA, constituted under the Haryana Housing Board
Act 1971 (Act No.20 of 1971) (hereinafter called the owner and includes its
successors and assigns) of the one part and Shri Harpal Arya S/o
Sh. Tek Chand (hereinafter called the hirer which
expression shall, unless inconsistent with the context or meaning, include,
as representatives and permitted assigns) of the other part.
WHEREAS, in pursuance of the Housing Board
Haryana, (Allotment, Management and Sale of Tenements Regulations 1972
(hereinafter called the Regulations) the hirer has separately applied to
the owner for allotment of a house under the Hire-Purchase scheme and the
owner has agreed to allot a house to the hirer upon the terms and
conditions hereinafter set forth.
AND WHEREAS the total tentative cost of the
tenement works out to Rs. 81,310/- )
AND WHEREAS the hirer has already paid
Rs.63,400/-(Rs.
only) as
hire-purchase deposit.
AND WHEREAS the hirer has paid Rs. 19,529/- (Rs.
only) one month’s rent by way of monthly installment and which is
hereby acknowledged to be the first installment.
NOW THESE PRESENTS WITNESS that the owner
hereby covenant and agree with the hirer and the hirer both hereby covenant
and agree with the owner in manner following that is to say:-
- The hirer shall be put
in possession of the property in the form of house bearing No. 2740-C
situated in Section 15 Estate of the Housing Board Haryana at Sonepat
and more particularly described in schedule I hereunder written and
with boundaries thereof for greater clearness delineated on the plan
annexed hereto as Schedule II and thereon coloured and shown in red
only after he has duly executed this agreement.
- The hirer shall hold the
said property as a tenant for the Hire-Purchase period which is fixed
terms of six years commencing from the first day of the month of Oct.
of the year two thousand and four and ending on the last day of the
month of Sept. of year 2010 subject to the following conditions:
- The hirer shall pay
without waiting for any demand from the owner the monthly
rent(installment) of Rs.1,486.35/-(Rupees.............only) on or
before the 10th day of each month at the office of the
owner, the first of such payment has already been made by the hirer
mentioned herein above and the same is considered to be taken as
monthly rent (installments ) of the month of ................. and the
next such payment is due and payable on or before the 10th day
of month of Sept. of the year 2005 and so on subsequently for every
calendar month till the expiry of the hire-purchase period.”
14. Thereafter, petitioner was handed over possession of H.No. 2740-C,
in Sector 15, Sonepat. The copy of Possession Certificate is reproduced as
under;
“POSSESSION
CERTIFICATE
It is certified that
the possession of House No. 2740- C in Sector 15 at
Sonepat has been handed over to Sh. /Smt. Harpal Arya Son/Daughter/wife
of Sh. Tek Chand on dated 27.10.2004whose
specimen signatures is given blow:-
Sd/-
27.10.2004
Specimen sign. of
allotee.
Estate Manager,
Housing Board Haryana,
Sonepat.”
15. Thus, from the aforesaid documents, it is manifestly clear that
petitioner had executed the Hire Purchase Tenancy Agreement with the
respondent and in pursuance thereof, he had also taken possession of house
on 27.10.2004. Further,
as per possession certificate it is clear, that petitioner had taken the
possession, without any pre conditions. Now after getting the possession,
it does not lie in the mouth of petitioner to state, that house is not in a
habitable condition. Once petitioner, had taken the possession with open
eyes and without any pre-conditions, he cease to be a consumer. The
consumer complaint was filed on 25.05.2005, that is, after about seven
months of taking over the possession of the house. Therefore, on the face
of it petitioner was not a ‘Consumer’ at the time of filing of the
complaint, since there was no privity of contract between the parties.
Therefore, complaint is liable to be dismissed on this ground alone. .
16. Lastly, the State Commission as per its impugned order has
dealt in detail with all the relevant Clauses of the Hire-Purchase Tenancy
Agreement. We are in full agreement with the reasonings given by the
State Commission. Hence, we do not find any ambiguity, infirmity or
illegality in the impugned order. Accordingly, present revision petition
having no merits stand dismissed.
17. No order as to cost.
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