- (1.) THIS complaint under s. 12 of the Consumer Protection Act, 1986 (No. 68 of 1986) ("the Act") has been filed by the Lal Kothi Scheme Resident Association, Jyotinagar, Jaipur through its President against the Chairman, Rajasthan Housing Board and Secretary, Rajasthan Housing Board, on March 28, 1989. The complainant is a registered Association and registered with the Registrar of Companies (Registrar Cooperatives ). Its registration No. being 233/1977-78.
(2.) IT has been stated that Jyotinagar Colony (Lal Kothi Scheme, Jyotinagar) is the first residential colony of the State built by the Rajasthan Housing Board (RHB) on Flat system (Multistorey ). IT was opened for inhabitation sometime in 1974-75. IT is said that there are about 300 flats located in 35 blocks. The status of each allottee is said to be of a lessee who is required to pay lease to the Housing Board (HB) every six months. The lessee is not allowed to undertake any sub-division, extension, alteration, sale and transfer of the flat. In every block there are certain common places, namely, stair case, side-walls, front and back wall Boundary walls and gates, common sanitary and water pipes besides a common park in the centre of the colony. IT has been alleged that the RHB had promised to provide services for looking after and upkeep of the aforementioned common places through a Registered Agency (for short "ra" ). According to the complainant this promise is contained in the RHB booklet (Ex. 1) "scheme for specific Registration for intending purchasers of Houses/flats ("the Scheme") under clause 2 (viii) of the booklet. IT is as follows : "in order to regulate the use of common portions and common services i. e. for maintenance and control of parks, staircase, compound-wall etc. a Registered Agency may be formed and the allottee/hirer may be required to become a member of that Registered Agency. " The RHB failed to form a RA despite many letters and reminders. In this connection photostat copies of letter No. 1208 dated 30-6-81 (Ex. 2), lot of writings in the Press (Ex. 3) directions from Ministry of Housing, Govt. of India (Ex. 4) and Minister of Housing, Rajasthan Government (Ex. 5) were produced. The lessees are said to have taken up the services of repair, upkeep and maintenance of common places in the flats by spending a lot of money from their pockets. All this was necessitated, for, without the repairs the flats would have been disfigured totally and it would have been difficult to live in the flats. The common park is also maintained by the residents. The case of the complainant is that the cost of the land of the park and whatever infrastructure made available by R. H. B. in the colony have been borne by the lessees themselves and not by RHB. It has been alleged: " (i) that the RHB did neither form a Registered Agency nor it itself took any responsibility for up-keep the common places in the flats/ colony and thus defaulted in fulfilling the services it has promised to pro- vide to lessees; (ii) that to constant persuation from this Association and even from Govt. of India and also Minister of Housing, Rajasthan Govt. to the RHB, did not bring any relief to the lessees and; (iii) that Resident Engineer informed this Association that he was getting details of formation of such a Agency from Delhi was just a totally false assurance to the lessees. " As the RHB failed to render services as promised to the lessees of Jyotinagar colony in regard to upkeep/maintenance of common places in the flats, this complaint was filed praying that the RHB may be directed to pay 6. 05 lakhs as detailed in page 4 of the complaint to the lessees of the colony and interest on this amount as well as cost of correspondence done during the last 10 years and to undertake the responsibility to upkeep the common places referred above in future on regular basis in the manner it is deemed fit. Additional requests regarding use of adulterated material and non-payment of interest by the RHB on the advance deposits were also made. A version of the case was filed by the opposite-parties resisting the complaint on various grounds. It was averred that the provisions of the Act are not applicable. It was submitted that the RHB has allotted the fiats in the Lal Kothi Scheme either on the outright sale basis or on hire purchase basis. The flats were according to the opposite-parties not allotted on lease basis. It was denied that the RHB was under an obligation to maintain the common portions including common services as they were to be maintained by the allottees. Reference was made to the Rajasthan Housing Board (Disposal of Property) Regulations, 1970 ("the Regulations") to show that the RHB was not bound to maintain common portions which mean the portions of the premises which are in common use as gate way, enclosures, passages, corridors, staircase etc. after allotment and the allottees are required to maintain them at their own expense. It was submitted that as per clause 2 (viii) of the Booklet (Ex. 1), the RHB is not under an obligation to form a RA and the allottees may for their own betterment form a RA. However, the RHB endeavoured to form a RA but the allottees were not unanimous on its formation. The loss claimed by the complainant was denied. The use of adulterated material was also seriously disputed. It was stated that advance amount is adjusted in the total cost of the house and there is no question of payment of interest on the advance deposit. It was mentioned that for the alleged services to be performed by RHB, the allottees had not paid any amount or charges and so free of charge service is not included in the service as defined in s. 2 (l) (o) of the Act.
(3.) REJOINDER to the version of the case was filed by the complainant. It is dated 29-5-89. The pleas raised in the version of the case were denied. Certain new facts were mentioned in para 2 of the rejoinder. In the rejoinder the following prayer was made : 1. The Rajasthan Housing Board may be directed to (i) undertake the responsibility of upkeep of common places in the flats/common park in future either through a registered agency or direct by itself "in future, (ii) to immediately start repair with white-washing etc. of the common places/pipes etc. , (iii) pay the compensation for which the allottees have suffered. 2. Rajasthan Housing Board be directed to give interest as per F. D. rate admissible for 12-15 years deposits, and that; 3. A team of impartial engineers may be deputed to check the quality of material used in construction of flats. The parties did not produce any oral evidence. Arguments were heard and concluded on 20-6-89. The complainant submitted documents etc. on 21-6-89 alongwith ends. A to F. In the forwarding letter it was wrongly mentioned that "as desired copy of some letters and other relevant documents in support of above are enclosed as follows. " Only legible copy of Ex. 2 was required. The forwarding letter was brought and handed over by a peon who left immediately. We deprecate such a practice. The opposite-parties submitted citations of the provisions of the Act and Regulations, photostat copies of orders of the High Court passed, Writ Petitions. The first question that arises for determinations whether the members of Lalkothi Scheme Resident Association on whose behalf the complaint has been filed are consumers within the meaning of s. 2 (l) (d) of the Act and if so, whether the RHB renders any service as defined in s. 2 (l) (o) of the Act. The relevant part of the definition of 'consumer' is as follows : 2. (l) (d) "consumer" means any person who, - (i ). . . . . . . . . . . . . (ii) hires any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires the services for consideration, paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person;" ;