HOUSING COMMISSIONER Vs. SANTOSH RANI SACHCHAR

JUDGEMENT

(1.) This appeal was filed by Housing Commissioner, U. P. Avas Evam Vikas Parishad against Smt. Santosh Rani Sachchar, r/o Indira Nagar, Lucknow against order dated 27.2.1998 passed by District Consumer Forum II, Lucknow. The facts of the case as stated are follows : the complainant had purchased a shop built by the U. P. Housing and Development Board through allotment by auction. The price paid by her was Rs.1,89,000/- as the highest bidder. This amount was to be paid to the Housing Board in 96 instalments. The possession of the shop was given to the complainant from 25.4.1987. At the time of auction it was mentioned that the total area was 32.61 sq. mtrs. But later on it was found that the total area of the shop was only 29.13 sq. mtrs. and the complainant on 6.2.1990 requested the Housing Board, the opposite party that the cost of the shop by reduced to 1,68,830.63 in view of the decreased area. She had also requested the opposite party that the details of payment through cash in instalments be made available to her. But no reply was given to her as a result that she had to pay remaining out standing amount in instalments alongwith the interest. Ultimately, the opposite party admitted that the area of the shop was 29.13sq. mtrs. and proposed that in view of the decreased area payment of an amount of Rs.3,166.80 shall be admissible to her. The complainant claimed that as a result of the area having been decreased the instalment should have been proportionately lowered but her request was not acceded and she had to pay instalment alongwith interest on the basis of highest bid of 1,89,000/- whereas the instalment should have been on the basis of the price of Rs.1,68,830.63 because of the decreased area. Since this request was not acceded to, she had to pay higher rate of instalment, more interest and more lease rent. In the District Forum, the opposite party stated that it was the duty of the complainant to satisfy herself as to the total area of the shop on 25.4.1987 when she took over the possession. The District Consumer Forum ordered that the complainant was entitled to the excess amount she had paid to the extent of Rs.20,170/- which should be adjusted in the payment of instalments. The District Forum has also ordered payment of 18% interest p. a. on this amount of Rs.20,170/-, Rs.1,000/- as compensation and Rs.1,000/- as cost of the proceedings to the complainant.

(2.) Aggrieved against this order of District Forum (II), Lucknow, the appellant, Housing Commissioner has come into appeal. It has been stated by the appellant in the memo of appeal that the area of the shop in question was found to be less by 3.48 sq. mtrs. the value of the area was assessed to be Rs.3,166.80 and this was ordered to be refunded to the complainant vide order dated 15.3.1996 of the Estate Management Officer, Lucknow. The complainant had not taken the said amount from the Board. The shop was taken by the respondent in an auction through highest bid and the possession of the shop had already been taken on 25.4.1987 after the respondent signed the inventory without making any protest. The cost of 3.48 sq. mtrs. area according to the rate on the date of auction comes to Rs.3,166.80 which was ordered to be refunded in March, 1996 and the claim being stale is not maintainable.4. It was also stated by the appellant that the complainant is not a consumer and there was no deficiency in service on the part of the Housing Board, as the cost of the deficient area has already been ordered to be refunded. The appellant denied that the cost of the shop was Rs.1,68,830/-. The cost on the highest bid was Rs.1,89,000/- and the same was not reduced. Only the cost of the land was ordered to be refunded which was Rs.3,166.80. Therefore, the orders passed by the District Forum on the basis of the cost of Rs.1,68,383/- are wrong and the complainant is not entitled to any relief except the abovesaid amount of Rs.3,166.80.4. (A) The respondent filed a written statement on 26.5.1999 and objection was also filed by her on 30.7.1998 on the replication preferred by the Housing Board. In the written statement the respondent has stated that by offering higher bid on 13.3.1987 the shop was purchased by her at Rs.1,89,000/- on the understanding that the area of the shop was 32.61 sq. mtrs. Even in the inventory form the total area recorded was 32.61 sq. mtrs. At the time of taking the possession on 25.4.1987, when the measurement was taken then only the area was found 29.31 sq. mtrs. This fact was confirmed by the Executive Engineer concerned. It was stated that the Housing Commissioner on 25.11.1989 had ordered that the amount to be refunded on the basis of the actual area. On this order of the Housing Commissioner, the Estate Management Officer intimated to the respondent that 3.48 sq. mtrs. space was found short and amount of Rs.3,166.80 is being refunded. The contention of the respondent is that since the area of the shop in question was 29.13 sq. mtrs. only, therefore, the highest bid amount could have gone to Rs.1,89,000/-. Further, it could have been made clear at the time of auction that the shop in question had 3.48 sq. mtrs. less area then the proportionate reduction in the bid should have been Rs.20,170/-. On the other hand, only an amount of Rs.3,166.80 is being refunded on the basis of the cost of land obtaining at the relevant time.5. We have gone through the entire evidence on record and we have also perused the order of the District Forum, arguments of the learned Counsel for the appellant and respondent's authorised representative have also been heard. From the perusal of the records it transpires that the auction of certain shops in question was conducted on 23.1.1987 by the Housing Board. In the auction 4 shops were included at the auction site. The map was shown in which the area of each shop was shown to be 32.61 sq. mtrs. But the reservation price in the auction was fixed as 1,47,600/-. The respondent's highest bid for the shop No. S-6/111 for Rs.1,89,000/-was finalised at the time of handing over the shop on 25.4.1987. This fact was shown in the inventory form that the area of the shop was 32.61 sq. mtrs. Whereas the area of all the 3 shops was 32.61 sq. mtrs. , it was only the shop of the respondent where the area was deficient and the area was 29.19 sq. mtrs. only. This was a clear deficiency of service on the part of the Housing Board. The reserved auction price of 3 shops each containing the area of 32.61 sq. mtrs. and the other shop containing the area of 29.19 sq. mtrs. should not have been the same and therefore 4 shops, including the shop in question, should not have been placed in one category. It was also found from the record that a number of representations were made by the respondent and the Dy. Housing Commissioner issued a clear order to the effect that the instalment was realised from the respondent on the basis of 32.61 sq. mtrs. area and therefore it has been directed by the Dy. Housing Commissioner on 25.11.1989 that the instalment should be on the basis of actual area. The inventory form has also been gone through which clearly indicates the area as 32.61 sq. mtrs.6. The implemention of the orders issued by Dy. Housing Commissioner from the Head Office was done by the Field Office at Indira Nagar by calculating the cost of land per sq. mtr. and only an amount of Rs.3,166.80 was sanctioned to be refunded without interest. In our opinion, the cost of deficient land should have been calculated on the basis of highest bid offered for the shop in question which was 1,89,000/- presuming that the area would be 32.61 sq. mtrs. Now the area on physical verification was found to be 29.13 sq. mtrs. and the cost per sq. mtr. should have been calculated proportionately to the rate of the highest bid. The District Forum passed orders keeping in view this fact.7. The learned Counsel for the appellant has placed reliance on the judgment of National Commission in Tamilnadu Housing Board V/s. R. S. Sybratnaniyam,CPR 1998 3 44 in his Appeal Nos.139 and 140 of 1994 decided on 17.11.1998. In this order the National Commission had held that "this case is one where the allotment of the plot has been made for the highest bidder in a public auction. We do not intend to go into the merits of case as we consider that the matter does not fall within the jurisdiction of the Consumer FORA that Consumer FORA cannot grant any relief in matters where transaction has arisen out of auction, sale which is tantamount to outright sale of the immovable property and, therefore, there is no arrangement of hiring of service for consideration within the parties".8. In the present case the facts are different. The map of the area of the shop exhibited to the bidders at the time of auction was shown to be 32.61 sq. mtrs. whereas the area of the shop in question was different from 32.61 sq. mtrs. Secondly, although an outright auction, but the same was subjected to payment of auction price in instalments with a provision of lease rent. Thirdly, the Dy. Housing Commissioner admitted the deficiency and thereby ordered on 25.11.1989 that the instalments be charged on the basis of the actual area i. e.29.13 sq. mtrs. and not on the increased area of 31.61 sq. mtrs. The order of the Hon'ble National Commission in the case cited above referred to delay for the allotment order. In the instant case it is not a matter of delay but deficiency on the part of the appellant where the shops put up for auction did not have the area as specified in the auction proceedings and ultimately in the inventory memo. Since the respondent continued to deposit instalments, it cannot be stated to be outright sale because the amount in question was not fully paid in cash and carried instalments with conditions that on failure of fulfilling the specific conditions the shop would be reverted back to the ownership of the Housing Board. The procedure adopted by the Housing Board in this auction is just almost the same as is adopted in the allotment of houses on higher-purchase basis. Only difference is that the property being commercial, carries a higher price but the person who takes the shops on auction remains as a consumer of the Housing Board, so long as he continues to pay the instalments and does not complete the formalities for free-hold, etc. Therefore the Housing Board by misrepresenting the exact area of the shop has been deficient in service and respondent is certainly a consumer and has been put to undue harassment. In the circumstances, we hold that the order passed by the District Consumer Forum (II) should not be interfered with and is to be upheld. The appeal is liable to be dismissed. ORDER the appeal is dismissed and the order of the learned District Forum (II), Lucknow is confirmed. The appellant shall also to pay Rs.1,000/- to the respondent as cost of proceedings. Let copies of this order be issued as per rules.