ANJANA PARASHAR vs VICE-CHAIRMAN, GHAZIABAD DEVELOPMENT AUTHORITY

AS both the applications pertaining to the same subject matter, involve the same cause of action, they are taken together for disposal.

THE applicant filed an application under Section 36B(a) of the Monopolies and Restrictive Trade Practices Act, 1969 (for brief the Act) charging the respondent-Ghaziabad Deve-lopment Authority with adoption of and indulgence in unfair trade practices for not handing over the possession of plot after its allocation and receipt of the full amount. For the aforesaid practices, she has also claimed compensation in the form of payment of interest @ 24% on the amount deposited and Rs. 10,000/- towards litigation cost. THE latter is vide application filed under Section 12B of the Act. As per both the applicants, the respondent has invited applications for allotment of plots in ''Karpuripuram Scheme'' instituted in the year 1991. The applicant was allotted a plot of 60 sq. mtrs. (Tye E category) vide letter dated 1.7.1991. As demanded, the payment in full was made in various instalments as per schedule of payments given by the respondent. The last and final instalment was paid on 3.7.1994. The respondent in a notice published in one of the national newspapers i.e. ''Times of India'' dated 10.6.1997 informed applicants that the scheme ''Karpuripuram'' stands cancelled. It was further informed that the parties would be entitled to interest at the rate of 5% on the deposits till 30.6.1997 and that no interest would be paid on the refund given after the aforesaid date. Abandonment of the scheme without assigning the reasons thereto is stated to be unfair trade practice on the part of the respondent for which applicant/complainant is to be suitably compensated.

Notice of Enquiry (NOE) as well Notice were ordered to be issued in UTPE No. 344/97 and C.A. No. 359/97 respectively to the respondent. In its reply the respondent resisted the applications on the ground that due to abandonment of the scheme, possession of the plot could not be handed over to the applicant. As the applicant failed to surrender the original documents/receipts duly verified by the concerned Bank as required under the letter dated 1.10.1997, the needful could not be done. Since the other parties placed in similar circumstances have been allowed 5% interest, it was stated that no deviation could be made in the case of the applicant.

AFTER the pleadings were complete in both the cases, the following common issues were framed : 1. Whether the respondent is or has been indulging in the unfair trade practices as indicated in the NOE ? 2. If the answer to the foregoing issue is in the affirmative, whether such unfair trade practices are prejudicial to the public interest or interest of the complainant/applicant or the interest of consumer of consumers generally? 3. Whether the complainant/applicant has suffered any loss or injury as a result of such unfair trade practices ? 4. If the answer to the foregoing issue is in the affirmative, whether the applicant is entitled to compensation as claimed in C.A. No. 359/97.

The evidence by way of affidavit and counter-affidavit was filed by both the parties.

I have heard both the parties through their respective Advocates. Mr. Yatender Sharma, Advocate for the applicant/complainant stated that while the final payment of Rs. 7,253/- was made on 3.7.1994, the notice regarding abandonment of the scheme was issued on 10.6.1997. Instead of informing the applicant regarding the litigation involving the lands in question, she was rather harassed by being asked to produce the proof in regard to the payments as made. By not handing over the plot despite full payment having been made, the respondent indulged in an unfair trade practice. Further for depriving the applicant from utilising its funds gainfully, the applicant needs to be suitably compensated. Meeting the arguments advanced on behalf of the applicant, the learned Counsel for the respondent stated that possession of the plot could not be handed over due to the unavoidable circumstances for which the respondent offered to pay 5% interest on the amounts deposited. The arguments advanced on both sides are carefully considered, material perused and the evidence evaluated. GDA is an authority created under the U.P. Urban Planning and Development Act, 1973. Alongwith the planned development of the township, being a statutory body it is to provide better, efficient and cheaper services to the people. In this back drop it is normal for the applicant/complainant to be assured of the possession of the plot for which she paid the entire amount within the stipulated period. Denial of the service as promised tantamounts to misrepresentation on the part of the respondent, which in turn would constitutes unfair trade practice. In this view of mine I am supported by the decision of Hon''ble Supreme Court rendered in the case of Lucknow Development Authority v. M.K. Gupta, reported in III (1993) CPJ 7 (SC)=AIR 1994 SC 787. It has been held therein that : "When a statutory authority develops land or allots a site or constructs a house for the benefit of common man it is as much service as by a builder or contractor. The one is contractual service and other statutory service. If the service is defective or it is not what was represented then it would be unfair trade practice as defined in the Act."

(p. 788)

THOUGH the aforesaid judgment has been rendered in the context of the Consumer Protection Act, 1986, on reading the provisions relating to the unfair trade practice therein, I find that they are similar to the MRTP Act.

IT is true that GDA is not a profit earning institution and as such compensation in the form of interest as provided in the brochure should be considered sufficient to have met the ends of justice. At the same time the cost imposed on the consumer by its act in delying the project or abandoning it has also to be weighed in the case of Karpuripuram Scheme. IT has not been shown that the authority has not earned interest on the amounts collected from the parties who deposited the amount in good faith. The entire amount has been collected from the applicant/complainant. The last payment was made on 3.7.1994. The information on the other hand was passed on to the applicant as late as 10.6.1997. Be that as it may, before embarking on the scheme the authority should have freed itself from any litigation stated to be the reason for abandonment of the scheme. IT is to be noted that the payment of the instalment started from 1991 and all along the amount remained with the respondent. Since the applicant has been denied the use of her money for long periods of time in between which the price of land in real estate has gone up, the applicant has certainly suffered loss and damage due to the above unfair trade practice on the part of the respondent. Not only this, the applicant also lost the opportunity of investing the amount in some other plot with the original amount of money. For the foregoing reasons, my answer to the first two questions in both the applications is in the affirmative.

In the course of hearing of another case in a similar matter relating to another scheme the Advocate appearing on behalf of GDA cited a decision of the Commission in the case of Smt. Swaran Lata Nayar v. GDA, in UTPE No. 199/97. It has been stated that the SLP filed by the applicant/complainant stood dismissed by the Hon''ble Supreme Court. A copy of the aforesaid decision as made available has been gone through by me. I find that the facts available in the aforesaid case are distinguishable from the ones available in the present case. In that case of Smt. Swaran Lata Nayar, applicant/complainant filed the case in the District Consumer Forum, Ghaziabad and the dispute was settled with the respondent paying interest @ 5% on the amount deposited by her. Not only this, as prayed she made a request to the respondent authority to refund the amount as deposited. These features are not present in the present case.

AT this juncture, it may be mentioned that in another case of Shiv Rajeev Mehtani & Anr. v. Ghaziabad Development Authority, in C.A. No. 187/96 relating to the Karpuripuram Scheme the Division Bench of Commission has held that the respondent had indulged in an unfair trade practice and have awarded compensation @ 18% on the deposits. Similarly in another case of George Thomas & Ors. v. Ghaziabad Development Authority & Ors., I (1999) CPJ 18 (NC) relied as on by the applicant/complainant the National Consumer Disputes Redressal Commission has awarded the interest @ 18% on the deposits made for non-possession of house on account of abandonment of Indrapuram Scheme. In the premises, in view of the foregoing discussions I hold that the applicant is entitled to compensation @ 18% per annum from the dates of deposit of different sums till the date of refund less paid amount to the applicant pending this order. Considering that the applicant has already been awarded interest at the rate of 18% I do not deem it fit to award any other amount as compensation for miscellaneous expenditure and mental agony as claimed. The respondent shall give effect to this order within six weeks from date of this order and file an affidavit of compliance within four weeks thereafter. There is no order as to costs. Application disposed of.