JUSTICE V.K.JAIN (ORAL)

 IA No. 15016 and 15017/2019  in RP/25/2017

          These are applications seeking impleadment of the legal representatives of the deceased respondent namely Champalal Pareek.  The Learned Counsel appearing for the proposed legal representatives of the deceased respondent/complainant submits that the deceased was survived by his widow, one son and one daughter.  He further submits that one son of the deceased had expired in his life-time and the pre-deceased son of the deceased respondent is survived by three class-I legal heirs, namely Smt. Jamna Devi, Sh. Abhishek and Sh. Bharat.  Hence, Smt. Bhagwati Devi(widow of deceased respondent), Smt. Jamna Devi (widow of pre-deceased son of deceased respondent) , Sh. Abhishek, Sh. Bharat, (sons of pre-deceased son of deceased respondent) Sh. Ajay Pareek (son of deceased respondent) and Smt. Indu Bala (daughter of deceased respondent) are brought on record as the legal representatives of the deceased respondent.  The amended memo. Of parties filed by the proposed legal representatives of the deceased is taken on record.  The applications stand disposed of.

RPs 21, 22, 23, 24 & 25 of 2017.

          The petitioner Rajasthan Housing Board advertised a scheme namely Self-Financing Scheme, 2010, for allotment of residential flats in Sector 14 of Chopasini Residential Scheme of Jodhpur.  The said flats were to be known as Marwar Apartments.  It was stated in the Brochure issued by the petitioner, that the area of the Residential Scheme, namely Marwar Apartments was about 22 hectares and 144 apartments were proposed to be constructed under the afore-said Scheme.  The Complainants, in these matters, got themselves registered under the above-referred Scheme advertised by the petitioner Board.  Reservation letters were issued to them in the year 2012, wherein it was inter alia stated that the estimated cost of the apartment would be Rs.17,99,000/-.  The payment was to be made in instalments and the last instalment was to be computed as per the finally decided cost of the apartments.  The complainants made further payment, pursuant to the reservation letters issued to them by the petitioner Board.  Thereafter, allotment letters were issued to them wherein the cost of the apartments was stated to be Rs. 24,80,8000/- Other charges comprising ancillary service charges, lease money, interest on seed money for delayed period wherever applicable, cost of parking and cost of maps were also added to the cost of the apartment.  Instead of making further payment in terms of the allotment letters issued to them the complainants approached the concerned District Forum by way of separate consumer complaints, seeking possession of the allotted flats at the cost of Rs. 15,39,836/-.  They also disputed the demand of ancillary service charges, parking charges and service tax.  The maintenance charges demanded by the petitioner board were also disputed by them.  They also sought compensation for the mental agony and harassment which they had to undergo, besides seeking interest on the registration money from the date of deposit till the date of reservation.

2.      The Complaints were resisted by the petitioner Board which inter alia stated in its written version that it proposed to construct 144 multi-storied flats in phase-I under Marwar Apartment Housing Project, for which registrations were made in the years 2008, 2009 and 2010.  The construction commenced in October, 2009 and was completed in March, 2013.  It was also stated in the Written Version that the cost given in the reservation letter was only an estimated cost and the allotment was made on no-profit-no-loss basis, the final cost having been calculated after the construction work had finished.   The  other charges demanded in the allotment letter were also sought to be justified by the petitioner Board.

3.      The District Forum having dismissed the Consumer Complaint, the complainants/respondents approached the concerned State Commission by way of separate appeals.  The State Commission having allowed the appeals and having directed refund of the amount which the complainants had deposited with the petitioner Board, along with interest @ 9% p.a., the petitioner Board is before this Commission, by way of these Revision Petitions. 

4.      In the impugned order, the State Commission took the view that since only 17 persons were registered under the 2010 SFS Scheme, the said Scheme did not materialize and consequently the complainants were entitled to refund in terms of the Clause 14 of the Brochure issued by the petitioner Board.  The submissions of the learned Counsel for the petitioner is that the scheme was never abandoned by the petitioner board and it had actually materialized as would be evident from the reservation letters followed by the allotment letters issued by the petitioner board. The submission of the complainants, on the other hand, is that the left-out flats of 2008 SFS scheme were allotted to them by the board instead of taking up construction of flats under the 2010 SFS scheme.  On a careful perusal of the Brochure, which the Board had issued, it appears to me that though every time applications were invited, the petitioner Board was naming the Scheme as SFS 2008, SFS 2009 and SFS 2010, in fact there was only one project namely Marwar Apartment, Chopasini scheme wherein 144 houses were proposed to be constructed in phase-1 of the Scheme.  Therefore, it would not be correct to say that the Scheme under which registrations were made by the complainants had not materialized.  Had the Scheme not materialized, no reservation followed by allotment would have been made to the complainants, nor would they have made further payments to the petitioner Board, after receipt of reservation letters from the said board.  The complainants did not refuse to make payment in terms of the reservation letters, on the ground that since the Scheme had not materialized they were entitled to refund of the registration money with interest and were not liable to make any payment to the Board in terms of the reservation letters issued by the board.  Therefore, reliance on clause 14 of the Brochure, in my opinion was wholly misplaced.

5.      This is also the submission of the complainants that the estimate cost of the apartments being only Rs.17,99,000/- at the time reservation letters were issued in the year 2012, the final cost could not have escalated to more than Rs. 24,00,000/- per apartment, even if, the other charges demanded by the Board in addition to the cost of the flats are excluded from consideration.  It has come in the written version of the petitioner board that under the allotments were made on no-profit-no-loss basis.  There is no evidence of the petitioner Board having fixed the final price of the apartment in deviation of the no-profit-no-loss basis highlighted in the brochure issued by it.  The cost given in the reservation letter being only tentative cost, the Complainants were under an obligation to accept the final cost determined by the Board on the basis of the actual cost of construction which came to be computed only at the time of allotment letters were issued.  It is not for a Consumer Forum to go into the costing of the apartments allotted by a statutory Board on no-profit-no-loss basis.  The complainants having got themselves registered and having made payment in terms of the Brochure issued by the Board were bound by the terms and conditions contained therein and they cannot seek refund of the registration money unless it is shown that the Scheme had not materialized due to any unforeseen reason.  In any case clause 14 of the Brochure on which reliance is placed by the Complainants applies only to the refund of the registration money and not to the refund of the payments which the Complainants made to the Board after registration had already been made by them and reservation letters were issued to them in the year 2012. 

6.      The position as on today is that the Complainants are not ready and willing to accept the flats allotted to them, at the price demanded by the petitioner board from them.  Therefore, they want only refund of the amount which they had paid to the petitioner Board along with appropriate interest on that amount.  Clause 15 (IV) and (VI) of the brochure which are relevant in such a situation read as under:-

“iv. If any applicant requests to refund the reservation amount deposited in this scheme, after depositing the first/second/third/fourth installment of reservation letter, then remaining amount will be refunded to him after deducting 20% of payable amount (registration + reservation amount), without interest.  For example, if the applicant requests to refund the deposited amount after the second installment is due, then remaining registration amount will be refunded to him after deducting 20% of the total amount of registration amount, first instalment amount and second instalment amount, without any interest.  In case if reservation amount is not deposited by applicant then deduction will be made after including the overdue registration amount for calculation of deduction.

vi.      Under above provisions, in any circumstances the maximum deduction will be limited to registration amount of self-financing scheme.”  

          It would thus be seen that the petitioner Board is entitled to deduct 20% of the registration plus reservation amount from the amounts which the Complainants have deposited with in case they do not want to accept the allotment at the price sought by the petitioner Board but said deduction cannot exceed to registration amount. 

7.      Though the Complainants did not specifically request refund of the reservation amount and registration amount, the very fact that they instituted consumer complaints demanding possession of the house for a price of Rs. 15,39,836/- clearly shows that they were not interested in accepting the allotment at the price demanded by the petitioner Board.  Therefore the date on which the consumer complaints were instituted can safely be taken as the date on which the complainants are deemed to have sought refund in terms of clause 15(IV) and (VI) of the brochure.  The  maximum amount which can be deducted out of the amount paid by them to the Board would the registration amount which they had paid to the Board at the time they had got themselves registered under the scheme. 

8.      For the reasons stated above, the Revision Petitions are disposed of with the following directions:-

(i)      the petitioner Board shall refund the entire amount received from the complainants to them,  after deducting the registration money from that amount, along with simple interest @ 9% p.a. on the afore-said balance amount w.e.f. the date of institution of the consumer complaints till the date of refund. 

(ii)      The payment in terms of this order shall be made within two months from today.

(iii)     There shall be no order as to costs.