AGRA DEVELOPMENT AUTHORITY vs LAKSHMI NARAYAN GUPTA

THIS is an appeal against the judgment and order dated 18.6.1999 passed by District Consumer Forum-I, Agra in Complaint Case No. 748 of 1996. The complainant has filed this complaint for refund of the amount deposited by him with the Agra Development Authority, opposite party, alongwith interest.

THE facts of the case stated in brief are that the complainant deposited a sum of Rs. 15,000/- on 8.8.1990. By letter dated 27.8.1990 the opposite party further demanded a sum of Rs. 6,750/- as enhanced amount of allotment money which was also paid on 9.9.1991. THEreafter, the complainant was informed by the opposite party that one MIG house has been allotted to him. A further demand of Rs. 21,750/- was made as reservation money which was deposited by the complainant on 27.4.1992. THEreafter the complainant was informed by the opposite party that house No. 11 under the Shastripuram Scheme has been allotted to him. A further demand of Rs. 21,750/- was made from the complainant as allotment money and lease rent for a period of 90 years. This amount was also deposited on 27.1.1993. In this way the complainant had deposited a sum of Rs. 73,918/- in all. At the time of allotment of the house, it was assured by the opposite party that the possession of the house will be delivered fully developed with all the facilities within a short period. According to the complainant, when he visited the house on 4.10.1996, it was found that the house was not complete and there were many deficiencies in the house like doors were not fitted, flooring and plastering on the walls was not done properly, there was no boundary wall etc. The material used was also not of standard quality.

The opposite party had threatened the complainant to deposit the amount, failing which the allotment order shall be cancelled. The complainant, therefore, prayed for refund of the deposited amount alongwith interest and compensation of Rs. 20,000/-.

THE opposite party in the written statement has alleged that the house is fully complete and the development work has been completed. It is alleged that the opposite party is not bound to construct the boundary wall. Material used was of standard quality. Regarding the facilities it has been alleged that all the facilities like water etc. have been provided. THEre is no deficiency in the house and at the time of allotment, it was intimated that the cost is only tentative and is likely to increase later on. THE other allegations of the complainant were also denied. The complainant filed as affidavit of his brother as evidence. Some documents were also filed alongwith photos of the house in dispute. The learned District Forum, after considering the evidence on record, came to the conclusion that there was deficiency in service in not providing the house in question within a reasonable time and there has been an inordinate delay in handing over the possession for which there was no justifiable explanation. The District Forum ordered the opposite party to refund Rs. 73,918/- to the complainant alongwith interest @ 15% from the date of deposits. Rs. 6,000/- was also allowed as compensation for mental agony, distress and physical harassment. It was further ordered that if the Development Authority failed to comply with the above order, interest @ 18% on the full amount was to be payable for the default.

AGGRIEVED against the order of the District Forum, the Agra Development Authority has come in appeal and has challenged the correctness of the order passed by the District Forum. We have heard the learned Counsel for the parties and have perused the evidence on record. Learned Counsel for the appellant has argued that the complainant had filed certain clippings of the newspaper to show that the Vice Chairman of Agra Development Authority had given a statement that in the houses of this scheme, there are some technical faults on account of which there is inconvenience to the allottees. It is further argued that in that paper it is also alleged to have been stated that some relief shall be given to the allottees of this scheme on account of these deficiencies. Learned Counsel has further argued that these newspaper clippings are only hearsay evidence and no reliance can be placed on the statements which is alleged to have been given by the Vice Chairman. In support of his contention, learned Counsel has placed reliance on the case of Laxmi Raj Shetty v. State of Tamil Nadu & Ors., (1988) AIR 1274 SC. In this case it was held as under : "We cannot take judicial notice of the facts stated in a news item being in the nature of hearsay secondary evidence unless proved by evidence aliunde. A report in a newspaper is only hearsay evidence. A newspaper is not one of the documents referred to in Section 78(2) of the Evidence Act, 1872 by which an allegation of fact can be proved. The presumption of genuineness attached under Section 81 of the Evidence Act to a newspaper report cannot be treated as proof of the facts reported therein. It is now well settled that a statement of the fact contained in a newspaper is merely hearsay and therefore inadmissible in evidence in the absence of the maker of the statement appearing in Court and deposing to have perceived the fact reported."

In the case of Mohd. Hashim v. State of U.P. & Ors., (1993) UPLBEC 750, Division Bench of Allahabad High Court at Lucknow observed in Para 88 that "NewsPaPer cliPPings alone may not furnish reliable evidence of a statement attributed to a Person but when that statement is rePeated on oath and oPPortunity is given to the concerned Person to controvert it and the oPPortunity is not availed of, the only conclusion that can be drawn is that he does not disPute having made the statement. Most of the newPaPer cliPPings contain statements said to have been made by the Chief Minister Sri Kalyan Singh at some Place or the other."

THUS it is clear from the perusal of these case laws that clippings of the newspapers as such cannot be relied upon because they are in the nature of hearsay evidence. However, if the facts mentioned in the clippings of the newspapers are sworn on affidavit, then the matter becomes different and it acquires the shape of evidence. A perusal of the complaint filed by the complainant will prove that this fact has been mentioned in the complaint and in support of the complaint an affidavit has been filed by Sri Mahesh Chandra Gupta, brother of the complainant. In para 7 it has been alleged that at the time of inviting applications for allotment of house, it was assured that all the facilities including road, drainage, water and electricity shall be provided. In para 9 it has been specifically mentioned that when the deponent visited the site on 4.10.1996 it was revealed that the proposed houses which have been allotted are not fully complete. There are no doors in the house, flooring and plastering on the walls of the houses has not been done properly and the boundary wall has not been constructed. These everments made on statement by the complainant''s ''Pairovkar'' have not been specifically controverted by the opposite party in the affidavit filed by the Authority. It has merely been said in the affidavit that the house No. 11 which has been allotted to the complainant is in good condition. THUS in absence of any specific denial in affidavit, it cannot be said that these facilities were available on the date on which the deponent visited the place. The learned District Forum has, after considering the evidence on record, come to the conclusion that there were deficiencies in the house. In para 3 of the judgment, the learned District Forum has specifically mentioned that the complainant, who is physically handicapped, has filed an affidavit of his brother and has denied the completion of the house. It is further mentioned that complainant has filed photographs of the house in question which have also been considered by the learned District Forum. After considering all these evidence which were available before the learned District Forum, it came to the conclusion that the house was not complete in all respects. We do not find any reason to disagree with the above finding of the learned District Forum. Therefore, the learned District Forum has rightly concluded that the complainant is entitled to refund of the amount deposited by him alongwith compensation and the interest. No interference is required in the judgment of the learned District Forum.

The appeal is, therefore, liable to be dismissed. Order

THE appeal is dismissed with cost of Rs. 2,000/- which the appellant shall pay to the respondent. Let compliance of the order be made within a period of two months from the date of this order.

LET copy be made available to the parties as per rules. Appeal dismissed with costs.