A.B.SHOREWAL vs LAKHANPUR CO-OPERATIVE HOUSING SOCIETY LTD.

THIS First Appeal is directed against the Order dated 26th October, 1994 passed by U.P. State Commission at Lucknow allowing the complaint and granting several reliefs which will be noticed hereinafter.

SHRI A. B. Shorewal is the Complainant. M/s. Lakhan Pur Co-operative Housing Society Ltd. is the first Opposite Party and U.P. Avas Evam Vikas Parishad is the second Opposite party before the State Commission. The facts which are not in dispute lie in a narrow compass and may be first noticed. The Complainant was enrolled on 2th February, 1968 as a member of the first Opposite Party which is a Cooperative Housing Society engaged in the development and allotment of plots to the members of the Society. The Complainant paid a sum of Rs. 3,302/- 11th November, 1968 and the photocopy of the receipt on record gives the various heads. Re. 1/- membership fee, Rs. 100/- as share money and Rs. 3,201/- as "advance" for cost of plot of land of 800 sq. yards. The Complainant paid a further sum of Rs. 800/- by a bank draft dated 29th April, 1985. He was allotted on 29th May, 1985 by the first Opposite Patty a plot of land of 200 sq. yards. According to the Complainant he had applied for 800 sq. yards plot and deposited the full price of 800 sq. yards at the rate of Rs. 4/- per sq. yard which was the agreed price besides the membership fee and the share money and thus a valid and binding contract came into existence which contract the first Opposite Party had agreed to perform by rendering service of developing the plots, allotting a developed plot of 800 sq. yards fit for the construction of residential house and for delivering the possession within a reasonable period. The grievance of the Complainant is that the first Opposite Party unilaterally reduced the size of the plot of land from 800 sq. yards to 200 sq. yards in an arbitrary manner and offered possession of 200 sq. yards plot in a low lying land which was not fit for construction of a residential house. The Complainant made a number of representations to the first Opposite Party and again to Opposite Party No. 2 which had taken control of Opposite Party No. 1 but with no relief. The Complainant then filed the complaint before the U.P. State Commission at Lucknow under the provisions of the Consumer Protection Act, 1986. Notices were issued to the Opposite Parties who were duly served but did not file any written version and in fact after putting in appearance for some dates no one appeared on subsequent dates and ultimately ex-parte proceedings were ordered against them on 9th July, 1993.

THE State Commission received the affidavit filed by the Complainant to substantiate his case. The State Commission came to the conclusion that it was fully established from the material on record that the Complainant is a member of the first Opposite Patty and had deposited an amount of Rs. 3,302/- with it asking for allotment of plot of 800 sq. yards. The State Commission further found that the first Opposite Party admittedly allotted a plot of 200 sq. yards to the Complainant and from the statement made in the affidavit which remained uncontroverted that the plot was unfit for construction of the house being low lying. The State Commission also drew an adverse inference against the Opposite Parties for failure to produce the documents summoned from them from time to time and in spite of notice of 1st March, 1994 from the State Commission and drew the inference that if produced they would have supported the version of the Complainant and gone against the Opposite Parties. The State Commission felt that the Complainant is entitled to the reliefs on the basis of the deficiency in service on the part of the Opposite Parties and directed the Opposite Parties to : (a) Deliver possession of a plot of two hundred square yards, fit in all respects for construction of a house, to the Complainant within three months from now, (b) Pay a sum of rupees five thousand to the Complainant as compensation for harassment and mental agony within one month, (c) Pay interest to the Complainant on the amount of money in deposit with the Society as cost of land at the rate of fifteen percent per annum for the past three years prior to 23rd October, 1992 (the date of filing of the complaint) within one month. (d) Pay interest at the rate of fifteen percent per annum on the said amount in deposit from 23rd October, 1992 till the date on which possession over the plot is delivered to the Complainant in terms of direction (a), (e) To pay interest on the amount in deposit as cost of land at eighteen percent per annum from entire payment along with the amount in deposit, in case possession over the plot is not given to the Complainant as directed, (f) Pay a sum of rupees two thousand as costs of these proceedings to the Complainant within one month.

THE Complainant being aggrieved of the Order of the State Commission has preferred this appeal seeking, inter alia, the relief of the allotment of 800 sq. yards plots along with a compensation of Rs. 5 lakhs for the harassment since 1968. Notices were issued to the Opposite Parties who were duly served. Only the first Opposite Party has put in appearance and filed its written version along with the affidavit. The matter came up for hearing on 27th September, 1996 in the presence of the Appellant who appeared in person and Mr. Raj Kumar Kapoor, Advocate for the first Opposite Party when this Commission directed the Registrar of this Commission to address his counterpart in the State Commission requesting him to despatch to this Commission the original records in case No. 344/SC/1992. This Commission directed that if the Appellant wished to submit any affidavit or other documents before this Commission he may also do so. The Complainant then submitted his affidavit dated 16th November, 1996 along with the documents and also filed a supplementary affidavit dated 14th of January, 1997. The arguments were heard on 18th March, 1997 and closed. During the course of the arguments it was felt and a direction was given to the Opposite Party to file an affidavit indicating clearly whether any of the persons who had been registered with the first Opposite Party for allotment of plots subsequent to the date on which the Appellant registered himself in the year 1968 had been allotted a plot having an extent larger than 200 sq. yards. It was also directed that along with the affidavit the first Opposite Party should also produce a copy of the Resolution passed by the first Opposite Party fixing the extent of the plots allowable to the different categories of applicants on the basis of their year of application, in case that was regarded as the criteria and that the first opposite party should specify in the affidavit any four plots which are suitable for house construction which it is willing to make available to the Appellant herein so that the Appellant could choose any one out of those four plots. It was further directed that detailed description of the plot numbers should be given in the affidavit as indicated above. The Opposite Parties were granted four weeks time for filing the affidavit. The Appellant was permitted to file his counter affidavit within two weeks thereafter putting forward all his submissions in respect of the offer made by the Opposite Parties and such other matters as he wished to place before this Commission. The direction was given to the Registry to circulate tire papers for passing orders after receipt of affidavit and counter affidavit, if any.

THE Opposite Party filed an affidavit of Shri Malkhey Singh, Chairman of the first Opposite Party along with the documents. A copy of the affidavit was served on the Appellant who instead of filing the counter affidavit wrote a letter dated 6th July, 1997 objecting to the service of the copy of the affidavit which is not a certified copy but has been signed as true copy only and asked the Registry for a certified copy of the affidavit. The Appellant did not make a proper application for the grant of certified copy and hence it could not be granted. It was taken that the Appellant has no further submission to make. We, therefore, proceeded to consider the merits of the appeal.

WE have considered the oral submissions of the Complainant (Appellant herein) who appeared in person and argued his case with clarity, of Shri R. K. Kapoor, Advocate for the first Opposite Party and have gone through the summoned records of the State Commission together with the affidavits and documents filed before this Commission. It is manifest from the record that the rate fixed by the first Opposite Party for allotment of plots to its members was at the rate of Rs. 4/- per sq. yard. The affidavit of Shri Malkhey Singh, Chairman of the first Opposite Party admits that the Appellant became a member of the first Opposite Party on 2th February, 1968, that an 11th October, 1968 he had paid an amount of Rs. 3,302/- as an advance payment for 800 sq. yards plot and that mis was a provisional step only since there was no question of final allotment of plot of 800. sq. yards. It is admitted in this affidavit that the rate of Rs. 4/- per sq. yard was a provisional rate which was subsequently increased to Rs. 10/- by the Resolution of the Society and thereafter the price of the plots were increased by way of a Resolution dated 24th March, 1985 from Rs. 10/- per sq. yard to Rs. 20/- per sq. yard. The photocopy of the Resolution doted 24th March, 1985 as well as the translation has been antlered with the affidavit. It is thus clearly established on the record that the Appellant had applied for a plot of 800 sq. yards and paid the entire consideration at the rate of Rs. 4/- per sq. yard i.e. Rs. 3,200/- on 11th October, 1968. It appears that after the Resolution dated 24th March, 1985 fixing the prices of the plots at the rate of Rs. 20/- per sq. yard, a demand was made by the first Opposite Party to its members including the Appellant. The Appellant deposited a sum of Rs. 800/- by bank draft dated 29th April, 1985. The Society took into consideration the sum of Rs. 3,200/- already paid plus Rs. 800/-, in all Rs. 4000/- and considered it as full and final payment for the Plot of 200 sq. yards. The Complainant was allotted the plot on 29th May, 1985.

THE question is whether there was any final agreement with the Appellant for the allotment of 800 sq. yards plot to him or whether the Society had allotted any plot of more than 200 sq. yards to any member. The receipt dated 11th November, 1968 only shows the payment as advance for cost of plot of 800 sq. yards. The affidavit of Shri Malkhey Singh, Chairman of the first Opposite Party says that Appellant never deposited the amount of money for 800 sq. yards at the rate of Rs. 20/- per sq. yard and there was never any final agreement between the parties for allotment of a plot of 800 sq. yards to the Appellant. The Appellant has neither produced before the State Commission nor before this Commission any material to show that any member of the Society was allotted a plot of 800 sq. yards. In the supplementary affidavit dated 14th January, 1997 the Complainant brought out the case of Smt. Gyanvati Mishra who was allotted a plot of 356 sq. yards. In the affidavit of Shri Malkhey Singh them is an admission that Shri Mishra was allotted the plot of 356 sq. yards. There is no material on the record that any member was allotted an area larger than 356 sq. yards.

IN the affidavit of Shri Malkhey Singh it is stated that at present the available plots with the Society are of only 200 sq. yards. It is mentioned that plot Nos. 3 and 4 in Scheme No. 2 besides Plot Nos. 857 and 861 in Scheme No. 1 of 200 sq. yards are available. It is also stated that if this Commission is inclined to the allotment of the plot of 356 sq. yards in favour of the Appellant, then the plots of 200 sq. yards which are adjoining and available with the Society would have to be clubbed together. The Appellant has not chosen out of the plots available as mentioned in the said affidavit. As the plots have been carved out it would be futile to allot an area of 156 sq. yards and leave 44 sq. yards plot from one of the two adjoining plots to make an allotment of 356 sq. yards to the Appellant. It would be in the interest of justice to direct the allotment of two adjoining plots. As the first Opposite Party has been negligent in the performance of service and there is deficiency in service in the matter of allotment of plot to the Appellant, we are inclined to mould the relief (a) granted by the State Commission. We direct that the first Opposite Party shall allot plot Nos. 3 and 4 in Scheme No. 2 of 200 sq. yards each i.e. in all 400 sq. yards to the Appellant and deliver him possession of the same within a period of two months from the date of receipt of the Order. The Appellant shall deposit the price of the additional area of 200 sq. yards at the rate of Rs. 20/- per sq. yard within a period of one month from the date of receipt of this Order. In the affidavit Shri Malkhey Singh has made a request that in case the Complainant is held entitled for allotment of the plot of 356 sq. yards then he would have to make die additional payment with interest at the rate of 18% from 29th April, 1985 when he made the balance amount for 200 sq. yards of plot. This demand for payment of interest would have been justified only if the possession of the plot had been delivered to the Appellant in 1985 itself. As the Appellant is not in possession, he cannot be made to pay interest. The Opposite Parties have not filed any appeal questioning any reliefs granted to the Appellant. We therefore, uphold the reliefs (b) to (f) granted by the State Commission and modify relief (a). The Appellant shall deposit a sum of Rs. 4,000/- with the first Opposite Party within one month from the date of receipt of the Order. The first Opposite party shall allot and deliver possession of plots Nos. 3 and 4 in Scheme No. 2 to the Appellant herein within one month thereafter. The parties, however, shall bear their costs of the appeal.