West Bengal Housing Board

[adv.singh]

S.C. CASE NO.: FA/2009/296 DATE-30.10.2009



DATE OF FILING: -10.08.2009



APPELLANT : The Secretary, West Bengal Housing Board,

105, S.N. Banerjee Road, Kolkata-14.



RESPONDENT : Anjana Hazra, W/o Sri. Swapan Kumar Hazra,

Vill & P.O.-Gopalnagar, Dist-Medinipur (Purba), Pin-721 130.



BEFORE: HON’BLE JUSTICE : Sri. Aloke Chakrabarti, PRESIDENT.

MEMBER : Sri. A.K. Ray.

MEMBER : Smt. Silpi Majumder.



FOR THE APPELLANT : Sri. Prasanta Banerjee, Advocate.

FOR THE RESPONDENT : Sri. Swapan Kumar Hazra, Authorised Representative.



-ORDER-



S. Majumder, Member.



This appeal has been directed against the judgment passed by the District Forum, Kolkata, Unit-II, on 13.04.2009, in its case no-CDF/Unit-II/CC no-256/2007, wherein the Ld. Forum below allowing the complaint on contest has directed the OP to allot a LIG flat to the Complainant within Kolkata subject to her satisfaction within a period of three months, in the alternative the OP was directed to pay a compensation of Rs.2,00,000/- to the Complainant, in default of payment of the abovementioned compensation money, the amount would carry interest @12% p.a. from the date of filing the complaint till realization.



The facts of the case of the Complainant before the Forum below in a nutshell were that she applied in the prescribed form for purchasing a LIG flat costing of Rs.2,50,000/- at Prantik Phase IV (LIG) at Haridebpur to the West Bengal Housing Board-OP after getting information from an advertisement in Ananda Bazar Patrika published in the month of May, 2006 and accordingly she purchased information brochure relating to the above mentioned flats and to get the terms and conditions for allotment of the flat. After perusing the booklet the Complainant found herself eligible for the allotment of the flat under the scheme. She made an application on 20.06.2006 in the prescribed form along with income certificate showing that her income is less than Rs.6,000/- per month.

The application money for making application for allotment of flat under the scheme was of Rs.25,000/-. The lottery for allotment of the flats was held on 21.09.2006 and she came to know that in the lottery she got success and was allotted a flat in the second floor. But surprisingly she was asked to submit an affidavit regarding her family income, which the applicant did not submit. According to her submission of family income is contradictory to the eligibility of submitting application as depicted in the information brochure. The Complainant further stated that as she received no allotment letter, she made prayers to the OP on 19.10.2006 and 29.12.2006 praying for allotment of flat, but the OP did not issue any letter regarding allotment of flat to her. She visited the office of the OP time and again and enquired about the progress of issuing allotment letter in her favour. She made an application before the CA & FBP, but when settlement failed she filed the complaint before the Forum below.

Thereafter the OP refunded the application money to the Complainant in her Bank account directly through cherque-dated 12.03.2007. According to the Complainant the OP took action whimsically, intentionally and illegally by canceling her allotment. The Complainant has further stated in the complaint petition that the Board did not ask for affidavit of family income from her and accordingly the Complainant has prayed for direction upon the OP that she may get her allotted flat and proper compensation for harassment as well.



Being aggrieved by the abovementioned judgment the OP-Appellant has preferred the present appeal contending that they are entitled to direct the Complainant for production of family income certificate before and even after the lottery also as per their rules and regulations. It has been mentioned by the Appellant in their memorandum of appeal that the Complainant has intentionally suppressed her family income at the time making application and this was done with ulterior motive and hence for such non-disclosure of the family income inspite of repeated requests the Appellant-OP was not in a position to hand over the flat to her.

The Appellant has submitted that though the Ld. Forum has directed the present Appellant either to allot her a flat or to pay a sum of Rs.2,00,000/- towards compensation, which is beyond the pleading and the prayer made by the Complainant and as such the Ld. Forum has exercised its jurisdiction beyond the scope as vested. It has been further contended by the Appellant that showing good gesture the Appellant-OP has refunded the application money deposited by the Complainant without deducting any amount from the said deposit and as such the question of any negligence or deficiency in service on the part of this Appellant does not arise. According to the Appellant the judgment passed by the Ld. Forum below is erroneous, illegal and liable to be set aside and the Appellant has prayed for allowing the present appeal.



On careful consideration of the record and some documents it is clear to me that as per advertisement given by the OP-Appellant in a leading daily newspaper, the Complainant applied for purchasing a LIG flat at the specified complex and she deposited requisite application money and her income certificate was annexed with the prescribed form given by the OP. The allegation of the Complainant is that in the lottery though she got success and was allotted a flat, the OP did not handed over the allotment letter to her till filing of the complaint before the Forum below. The OP took the plea that as the Complainant did not bother to submit affidavit of her family income to the OP inspite of their several requests, the Op was not in a position to give her the allotment letter.

The Complainant has admitted that she did not submit any such affidavit regarding her family income, as the same has been submitted at the time of filing application to the OP as per the OP’s Terms and Conditions and the income was one of the criteria for making an application. In my opinion after scrutinizing the applications the lottery was done and it was obviously held based on the valid applications. If the Complainant’s application did not fulfill the terms and conditions for allotment of flat she should not have been put to lottery. Before lottery the Complainant was never asked for filing affidavit stating her family income, but after her success in the said lottery she was asked for submitting the same, which the OP-Appellant cannot do.

I have noticed that the Complainant’s income at the time of submitting application was of Rs.6,000/- per month and based on this income she was declared eligible to make application and to participate in the lottery and as per the advertisement only the applicant was directed to submit his/her income certificate. The Ld. Counsel for the Appellant has submitted that before lottery the applicant was requested to submit an affidavit stating her family income, but the Appellant could not show me any such letter asking her to file her family income before the lottery for allotment was held. I have perused the Terms and Conditions in information brochure where it has been stated that such terms and conditions are applicable to the allottees of dwelling units. In the said terms and conditions there is no averment that in case of application made by one of the family members, the applicant is liable to submit the family income certificate to the Board.

On the contrary it is written that the applicant should submit his/her income certificate along with the prescribed form. In the instant case the applicant/Complainant has abided by the terms and conditions fully, but she was not handed over the allotment letter for a long period and in this way in my opinion the OP-Appellant has intentionally harassed the Complainant for an indefinite period. After getting success in the lottery the Complainant has to run from pillar to post with a view to get the allotment letter from the OP and ultimately she had to approach before the Court of Law. Such action on behalf of the OP-Appellant is an example of deficiency in service. At the time of argument the Appellant has drawn my notice towards the Terms and Conditions no-11.3 of the information brochure where it has been stated that the Board has full authority to modify the terms and conditions of allotment without reason whatsoever.

It is an admitted fact that in response to an advertisement published in a daily newspaper the Complainant purchased an information brochure and submitted an application form complying the terms and conditions for allotment of flat under LIG scheme. I am of the view that in case of any alteration or modification in the terms and conditions specified in the information brochure, it was the duty of the Appellant to publish a notice in the said newspaper where the advertisement was published for information of general public before the lottery for allotment of flat was held that for being considered for allotment of flat under LIG scheme the applicants are to produce their family income instead of individual income. By not publishing such notice the applicant was under impression that no terms and conditions has been modified. In my opinion cancellation of allotment of flat was done arbitrarily though she was a successful candidate in the lottery and by refunding the application money through cheque directly in her Bank account is an glaring example of deficiency in service on the part of the OP which should not be encouraged in the eye of law as the Complainant never requested the OP to refund the application money to her.

Such refund was made with ulterior motive as the OP wanted to avoid their liability in handing over the allotment letter to the Complainant. In my considered view the OP framed the Terms and the Conditions and the OP for this reason cannot travel beyond their own Terms and Conditions until and unless it is modified and such modification should be known to the Complainant directly in writing or through newspaper publication.



In view of the foregoing discussion I am of the opinion that the judgment passed by the Forum below does not suffer from any material irregularity or infirmity and for this reason the said judgment is liable to be affirmed. Hence it is ordered that the appeal be dismissed without any cost and the Forum’s judgment is hereby affirmed. The office is directed to send down the copy of this judgment to the Forum below and issue the same upon the Advocates/Parties free of cost forthwith.

[adv.singh]

APPELLANTS/COMPLAINANTS :
1. Asst Housing Commissioner (1),

West Bengal Housing Board,

105, S.N. Banerjee Road, Kolkata-14.



2. The Deputy Director-IV,

Birati Housing Project,

West Bengal Housing Board,

North24- Parganas.



3. The Assistant Director,

Birati Housing Project,

West Bengal Housing Board,

North 24- Parganas.

RESPONDENTS/O.P.S : :

1. Subrata Lal Roy,

Birati Abasan, MIG(U),

15/2, M.B. Road, P.O- Nimta,

Kolkata-700049.
BEFORE : HON’BLE JUSTICE : Mr.A.Chakrabarti,PRESIDENT.

HON’BLE MEMBER : Shri A.K. Ray.

HON’BLE MEMBER : Smt. Silpi Majumder.


FOR THE PETITIONER : Sri P. Banerjee. Advocate.

FOR THE RESPONDENT : In Person. Advocate.
Sri. A.K. Ray, Hon’ble Member.

The instant revision petition has been filed against the order dated 8.6.09 passed by the District Forum, Barasat in DFEX case no 13 of 2008 directing the OP/Present revisionist to deposit Rs.50,000/- as security money for the repairing work of the flat of the Complainant/OP herein and also to pay Rs. 28,000/- towards compensation and cost. It was prayed by the Petitioner that they should be given liberty to execute the repairing work of the flat in question of the Complainant/ OP in terms of the order of the Forum below. The revisionist also sought for a direction on the OP to render assistance and co-operation in this regard.



2. At the time of hearing it was felt that a local inspection of the premises in dispute was vitally required to ascertain the nature and extent of the repairing work for compliance of the original judgement of the Forum below. Sri N.R. Mukherjee, Ld. Advocate agreed to hold the inspection without any remuneration in order to assist the Commission. Sri Mukherjee conducted the said inspection in presence of both the parties when Sri Prasanta Banerjee Ld. Advocate of WBHB, Sri Subrata Lal Roy Complainant/OP, Sri Sajal Barman Das, Deputy Director, Birati Abasan, Sri Manabendra Roy law officer of WBHB were present. Sri Mukhopadhyay inspected the entire flat very carefully in the light of the statement made by Sri Subrata Lal Roy. His report was a speaking one and was accepted by this Commission. Though Sri Subrata Lal Roy, OP had signed the minutes of the inspection report, he filed a written objection before us challenging the said report. According to him the report of the Commissioner was a motivated one having no basis at all. The Ld. Advocate for the Petitioner filed a copy of the work order for civil and plumbing work of the disputed flat where from it appears that the spot quotation for the above mentioned work amounted to Rs. 13,500/- . The OP however was not satisfied with this work order. He contended that this work order will not help in repairing of the defects of his flat.

3. After hearing both the sides at length it was felt by us that the OP Sri Subrata Lal Ray should be given the onerous task of repairing of the alleged defects of his flat so that his grievance will be set at rest. It appears that in terms of the order of the Forum below an amount of Rs. 50,000/- has been deposited with the Forum below by the revisionist. We have gone through the reports and other documents kept in the file and feel satisfied that a sum of Rs. 20,000/- will meet the need to complete the repairing work of the subject flat.

4. It is accordingly ordered that the Revitional Petitioner shall pay an amount of Rs. 20,000/- to the OP Sri Subrata Lal Ray within a fortnight from the date of communication of this order so that Sri Ray can undertake the repairing work himself. The OP will have no further claim in respect of repairing work of his flat. The Revitional Petitioner will however be at liberty to withdraw Rs. 50,000/- deposited with the Forum below after compliance of this order. The revision petition stands dismissed on contest in the light of our aforesaid decision.

[sayar_arup@rediffmail.com]

Sir, it is serious for me, sri sukhendu das who was alloted flat no.C-11/15 with various defects in construction, that repairing work at my flat is urgently required. Though in the year 2000, an amount of rs.2,85,750/- was released by the WBHB for definite purpose of repairing works at dwelling units of block-C, but you are well aware that no work was done as yet, particularly for flat no.C-11/15.Very recently, in the wake of hearing session at West Bengal Information Commission, Law Officer and other higher officers agreed to take up repairing jobs in flat no.C-11/15. Now again, after about 2 months, it appears that nothing fruitful possible as no work order has yet been issued by the appropriate authority of WBHB. But on the basis of your words, I waited long to approach to West Bengal Information Commission to make it known whether there were defects in construction or the amount released for dwelling units were specified for some other purpose. But of course I should approach with my plan program if WBHB prefers not to do reparing jobs at flat no.C-11/15

[Unregistered]

Sir,

We are residents of northern heights 105/2 Ultadanga main Road. When promoters of the group came with the project they had plans for 4 buildings which have been built already. There was a small place left which now the promoters have bribed to the concern bodies and have got permission to build the 5th land. How to stop them please suggest.If you people will come and talk to the residents of the building they will tell you the same story Right now we do not have an association so we cannot fight with the concerned big pockets. PLease visit site and get a stay for the people of northern heights. I am sending the same to media and also chief minister of bengal Hope we will get justice soon.

Regards.
Not mentioning the name as my life could be endangered
MUNNIDEVI1956@GMAIL.COM
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