1. SHRI Manoharrao Madhavrao Dange and 12 others filed complaints before the District Forum stating that the residential units under L.I.T., L.I.G. 69 Scheme announced by the respondents, Amaravati Housing and Area Development Board/Maharashtra Housing and Area Development Authority (for short MHADHA'') which were built as per housing policy of Govt. of Maharashtra at Amaravati, were allotted to the complainants in 1987 with built up area of 168.15 sq. ft. including room of 104 sq. ft. with roof of Mangalori Tiles; one latrine and one bathroom.
2. THE allottees paid their first instalment when demanded and the remaining amount was to be paid within 13 years i.e. to be paid by 156 monthly instalments on the basis of Hire - Purchase Principle. All the complainants belonging to low income group took the possession of their units in 1988. But they found that quality of construction was very bad and of low quality having no facility of electricity and also drainage/ sewerage was not properly done. The latrine wall and septic tank was broken and the bathroom had only 3 feet high wall. There were no properly made roads and no facility of drinking water was available. Accordingly, tenements were not fit to be used as residence. Out of helplessness, they took possession of the houses and spent money on their own for improving and repairing the houses and accordingly formed one L.I.G. units. Allottees Committee which requested the Chief Executive Officer, Amaravati Housing and Area Development Board to repair these tenements and provide all facilities, which were lacking. Even they contacted the Housing Minister but they could not get any justice and the Board also threatened them with cancellation of their homes for which they prayed for stay.
3. THE District Forum after hearing the parties came to the conclusion that complaints were filed in the year 1999 though the possession was taken in 1988 after 11 long years and hence they were time barred. Further the opposite parties had a right to fix the final price of the units under Rule 22 9(3) framed under Maharashtra Housing and Area Development Regulation, 1981. Therefore, the complaints were dismissed.
Aggrieved by the order of the District Forum, the complainants filed individual 13 appeals against the same opposite parties. The State Commission on re -appraisal of the evidence and facts before it, observed that though the authorities of MHADA time and again admitted shortcomings in the construction and assured to remove the same, when they failed to do so, the complainants had to contact higher authorities at Mantralaya, Mumbai for redressal of their grievances regarding defects in construction and settlement of accounts.
4. THE State Commission further observed that in such cases the cause of action is always a continuing one. Regarding the jurisdiction of the Consumer Forum to try the dispute, the State Commission drew support from the celebrated Judgment of the Hon'' ble Supreme Court in the matter of Lucknow Development Authority v. M.K. Gupta, III (1993) CPJ 7 (SC)=AIR 1994 SC 787.
5. AS far as question of pricing is concerned, the State Commission held that the issue of pricing does not fall within the ambit of C.P. Act but the dispute in hand is not only regarding pricing but is also regarding the defects in construction which certainly is a consumer dispute in view of Section 2(l)(o) of the Consumer Protection Act.
6. ACCORDINGL Y in view of the legal position, the State Commission held that they had no other option but to set aside the impugned order and remand the matter back to the Forum for fresh trial according to law on merits. The State Commission as a matter of abundant caution has also observed that they refrain from giving any observation on the merits of the case.
7. AGAINST this order of the State Commission, MHADA and the Chief Officer of the Board have filed these Revision Petitions before us. When the matter came up for admission, this Commission observed as follows:
" Learned Counsel for the petitioner after arguing for some time, on a query from us submits that the State Commission has recorded a finding that some promises remained unfulfilled. He submits that he will put up on record a copy of the brochure and copy of the advertisement issued to the general public at large inviting applications for allotment of flats."
8. INSTEAD of filing copy of the brochure and the copy of the advertisement, we are surprised to see that the learned Counsel for the petitioners has filed additional affidavit and other documents running 112 pages. However, copies of the advertisement and the brochure have not at all been filed. He has stated in the affidavit that since the record is old, paper like advertisement, etc. pertaining to the year, 1988 are not traceable/available on record. Instead of filing brief affidavit mentioned in the same, he has filed a detailed affidavit covering several issues which is very much beyond the scope of the prayer made by him on the last date of hearing.
9. THERE are three issues in this case; one is whether the complaints were time barred. These tenements were given to the complainants at the price fixed by MHADA on Hire Purchase basis. Allottees are infact called as tenants. They become the owners only after they pay 156 instalments spread over a period of 13 years. This is not the case of a purchase of house or a site in an auction on as is where is basis.
10. FORM II issued to the complainants under Regulation 17(1) is reproduced below:
"A detailed allotment letter confirming the above allotment will be issued to you immediately after the tenements are ready for occupation. In the meantime it is suggested that you may form a small committee of allottees with a view to making suggestions about the quality of the construction work being carried out, including any suggestions for improvements. If you form such a committee, the Executive Engineer may be informed accordingly, whereupon he will allow the members of your committee to visit the site and inspect the construction and materials used therein. The names and addresses of the other allottees in your building can be had from the Office of the Nagpur Housing and Area Development Board, Nagpur."
11. THIS shows that it is a welfare scheme for the poorest Section of the society and they were permitted to pay the amount in 156 instalments as per the Hire Purchase Scheme at the provisional rate of Rs. 164 per month initially from the month of April, 1987. Therefore, cause of action continues till the payment of all instalments are made and the ownership rights are transferred to the consumer complainants and in this case the complaint was filed before the ownership rights were handed over to them. Hence there is no doubt in our mind that the complaint is filed within time.
12. THE next issue is to be decided whether the Consumer fora can entertain complaint on the pricing of the tenements. The law is well settled on this issue i.e. the Consumer ora cannot entertain the complaint on the pricing of the plots or flats allotted by the Development Authorities and the State Commission has rightly decided on this issue.
13. THE third issue is to be decided is whether defects in the construction and deficiency in service regarding water supply, sewerage, etc. can be looked into by the Consumer Fora. Generally when such Grandiose Welfare Schemes are announced by the State Government or the Development Authorities, brochure and advertisements are issued giving details of the facilities provided to the prospective consumers. The petitioners do not deny the fact that such advertisements and brochures were issued but their only contention is that they are not traceable at this distance of time.
14. THE words defect'' and deficiency'' have been defined in the Consumer Protection Act under Sections 2(f] and 2(g) as follows:
(f) "defect" means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force under any contract, express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods;
(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
And word service'' has been defined under Section 2(o) as under:
(o) "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.
15. IT is clear from the facts of the case and the analysis made by the lower Fora that there were defects in construction of these tenements, which were brought to the notice of the petitioners during the tenancy period. In fact the petitioners themselves encouraged formation of the committees of the tenants to give suggestions to the petitioners for improvement in construction, etc.
16. THE State Commission has not passed final order giving directions to the petitioners to rectify the defects /removes deficiency or to pay compensation. The State Commission has remanded the matter back to the District Forum for fresh trial according to law on merits.
17. ACCORDINGL Y , we do not see any material irregularity or jurisdictional error in the well -reasoned order passed by the State Commission warranting our intervention under Section 21(b) of the Consumer Protection Act, 1986. Therefore, these Revision Petitions are dismissed. The Revision Petitioners shall pay to each one of the respondents a sum of Rs. 2,000 as cost. R.Ps. dismissed.
