1. THE complainant is a Supervisor in the Madura Coats, Koratty. In 1982, he applied for allotment of a plot of land for construction of a house in the Chalakudy Housing Accommodation Scheme of the Kerala State Housing Board. THE application was registered and in terms of the scheme he remitted Rs. 3,000/-. It was duly processed and on 16.4.1988 an agreement for the sale of a plot was entered into between the complainant and the Housing Board. THE complainant was all this while remitting the instalments of the purchase money under the scheme of allotment. Ultimately on March, 30th 1990 the complainant was put in possession of a plot of land for construction of the house. THE complainant now claims compensation of Rs. 1,50,000/- from the Housing Board. He alleges that the prospectus issued by the Housing Board had offered to hand over the plots before the expiry of 3 years, at the latest, but as it happened it was only after seven years and four months that the plot was given to the complainant. Under the agreement of 16.4.1988 possession of the plot should have been given on that date itself; however it was done only one year and eleven months after. During this period, that is, from the date of the agreement to the date of obtaining possession he had paid to the Board land value with interest at 15% aggregating to Rs. 50,325/- (He has given details of the payment in the complaint). Inspite of his demands the Board had not cared to pay him interest on the amounts remitted by him. He was staying all this while in a rented building and he would have to bear additional cost for construction of the building owing to the escalation in the price of building materials. Had it not been for his involvement in this transaction with the Board, he could have purchased a plot of land and put up a building, years ago.
2. THE opposite party''s version is briefly as follows : - THE Housing Scheme was formulated in the belief that the Board would be able to implement it within 3 years. However, owing to technical and administrative problems, it had taken a long time to finalise the scheme and allot plots of land. Keeping such a contingency in view appropriate provisions had been incorporated in the prospectus in regard to cancellation of registration in Clause ''8''. If the scheme is not implemented within 3 years, the applicant can withdraw the application fee of Rs. 3,000/-. THE complainant did not withdraw the registration obviously wanting to retain his priority. (THE Board also refers to certain special provisions introduced in 1987 for the allotment of plots). To finalise the scheme on the new basis and to settle the extent, price, etc. of the plots would take sometime. THE exact price payable by the applicants could be known only after such settlement. THE Board had however decided to fargo the penal interest realised from the applicants and the complainant is entitled to get back Rs. 128.84 on this account. He is not entitled to any other relief. THE Board has acted only according to the provisions of the Housing Board Act and the relevant scheme. It is true that there was some delay in the transfer of the plot; but this was not due to any negligence or laches on the part of the Board or its officers. THEy have all along acted bonafide. THE claim made by the complainant is without any legal basis. THE opposite party has also added that the complainant is not a consumer within the definition of the term in the Consumer Protection Act and the complaint is not maintainable.
The parties have led no oral evidence, but they have produced certain documents. These have been marked and admitted in evidence on consent.
The opposite party''s contention that the complainant is not a consumer and is therefore disentitled to claim the benefits of the Consumer Protection Act (the C.P. Act for short) can be easily dealt with. The National Commission has held in U.P. Avas Evam Vikas Parishad v. Garima Shukla I (1991) CPJ 1(NC) that an allotee of a plot (like the present complainant) is a consumer within the C.P. Act. The National Commission has repeated this view in a number of subsequent cases. In view of this settled opinion we have no difficulty in holding that the complainant is a consumer within the C.P. Act.
3. COUNSEL for the opposite party next contended that since no lack of good faith has been established against the Board and its officers they are entitled to the immunity conferred by Section 138 of the Kerala State Housing Board Act, 1971. That section provides : -
"No suit, prosecution or other legal proceedings shall lie against the Government, the Board or any Committee thereof or any officer or servant of the Government or any officer, or subordinate of the Board for anything which is in good faith done or intended to be done in pursuance of this Act or any rule or regulation made there under."
This Section is meant to protect the individuals and the authorities specified therein from suits and prosecutions where their acts are done in good faith and for that purpose confers a sort of personal immunity upon then. It does not touch the acts themselves nor protect them from extraneous or judicial challenge. We, reject the contention for protection based upon Section 138.
4. TURNING to the merits of the case we are afraid that despite the time lag in handing over possession of the plot by the Board the complainant must fail. The complainant''s entire claim is based on the circumstances that although the prospectus announced in ''Clause 8'' that the intention of the Board was to deliver the plots to the applicants at the latest within 3 years the complainant was given possession of his plot only after seven years in March 1990. He also points out that this delay violates even the provision in the agreement of 16.4.1988 that the complainant would be permitted to be in possession of the plot from that day onwards. This contention, attractive as it is, overlooks certain related rights conferred on the applicants like the complainant Clause ''8'' of the prospectus while providing that the Board would in the ordinary course, give possession of the plot, flat, building, etc. within 3 years, has taken care to add that if owing to unforseen circumstances the Board could not do it the applicant could withdraw the registration and that in such a contingency the Board would refund the fee with interest at 6% for the period the Board was in possession of the fee. The provision continues to say that the applicant has an unfettered right to withdraw from the registration and that he will have no right to interest if the withdrawal is within one year of the registration but if it is within two years he would get interest at 2% and that if it is within three years he would get interest at 4%. The agreement of 16.4.1988 affirms these provisions.
The above clauses in the prospectus and in the agreement unmistakably show that the applicant is not at the mercy of the Board nor is he helplessly bound by what he feels is the unconsciousable conduct of the Board. If he felt that the Board was deliberately delaying the scheme the complainant could have withdrawn from the registration and claimed repayment of the Rs. 3,000/- deposited by him. He did not withdraw from the registration at any time but went on making deposits in terms of the scheme. On 16.5.1989, he wrote to the Administrative Officer of the Board that although under the agreement of 16.4.1988 he has been allotted a plot and he had paid the entire tentative price on 16.8.1988, he had not been given possession of the plot and that the Board should either handover the plot immediately or credit interest at the rate of 15% per annum from 16.8.1988, to his account. Thus even so late as 16.5.1989 he did not withdraw the registration, all he wanted was immediate possession of the plot or alternatively interest at 15% from 16.8.1988 (the date of his last deposit). In reply he was informed that as he was already allotted a plot he was disentitled to interest and that possession of the plot would be handed over to him as soon as the completion of the development works was over. Subsequently the plot was handed over to the complainant The complainant accepted the possession as the record shows, unconditionally and without any protest The result is that the complainant did not choose at any time to withdraw the registration; on the other hand, he continued his deposits under the scheme and paid the full tentative value and even then he wanted possession to be given and only made an alternative claim for interest. He has not avoided the contract; he has not even raised a plea that any term in the contract is unconsciousable or unfair. In these circumstances we find it unable to hold that the complainant is entitled to the compensation claimed.
Though we are denying the complainant the reliefs claimed by him, we would like to record our happiness over the long delay in implementing the schemes which cause considerable pain and financial loss to the needy people who are anxious to secure a house for themselves. We hope that the Government and the Board will be alive to this problem and will try to eliminate all avoidable delays.
5. COUNSEL for the opposite party questioned the validity of the complaint, contending that the C.P. Act is itself void as Parliament has no power to enact a law touching Housing Boards. Since we are dismissing the complaint this contention does not require detailed consideration but even so we might observe that it is without merit. For one thing, the opposite party has taken no step to challenge the vires of the Act in the High Court or Supreme Court and to our knowledge neither of these Courts has struck down the Act on the ground raised by COUNSEL or on any other ground. It is pointless and irrelevant to challenge the vires of the Act in this Commission which is its creature and is therefore helpless to nullify it. Even so we might observe that the Act deals with problems of consumers and not with Housing Boards. We might also note that although COUNSEL raised this contention in the course of his arguments it finds no place in the written version submitted by the opposite party. We reject the contention. We dismiss the complaint but without costs. Complaint dismissed.
