ARCHANA MAHESWARI vs Ghaziabad Development Authority

THE petitioner has brought an action against the respondent for conducting an enquiry into the alleged unfair trade practice under Section 36A of the Monopolies and Restrictive Trade Practices Act, 1969 (hereinafter referred to as the Act) said to have been committed against the petitioner.

IN short the case of the petitioner, as set out by her, is that the respondent, namely Ghaziabad Development Authority is a Public Sector Undertaking of the Government of Uttar Pradesh and is rendering real Estate service in District Ghaziabad (Uttar Pradesh). The respondent has sponsored a Scheme known as ''INdira Puram Plot Scheme''. The petitioner Smt. Archana Maheshwari has applied for an allotment of one of the plots in her favour by her application dated 18.1.1991 for residential plot and vide Challan Form No. 110 had deposited a sum of Rs. 46,240/- towards registration charges. The respondent by its letter dated 17.9.1991 informed to the petitioner that a plot admeasuring area about 350 sq. mtrs. has been reserved for her. According to the averments made in the application, the petitioner tried to deposit the amount towards instalments but the Bank refused to accept the same and she was asked to deposit the interest along with instalments as per terms and conditions of the Brochure which she did not comply. In this regard, she also met the concerned officers of the respondent but of no avail. On the other hand, she was made to run from pillar to post. It is further submitted that while issuing letter dated 17.9.1991, besides the instalments, huge interest to the tune of Rs. 25,989/- was charged, which she was not entitled to deposit. It is also submitted that the respondent informed the petitioner that since she has not complied with the terms and conditions of the Brochure in depositing the amount due on her, therefore, the reservation of the plot is cancelled.

On these facts, the petitioner has approached this Commission seeking relief to the effect that an enquiry be conducted into the aforesaid unfair trade practice and further the proceedings to cancel the residential plot in Indira Puram Township be also set aside and the respondent be commanded to allot a plot in Indira Puram Township as per letter dated 17.9.1991 said to have been issued by the respondent. She further claimed that considering the facts and circumstances of the case, any other relief deemed fit and proper may also be granted to her. The Commission had issued Notice of Enquiry under Sections 36A, 36B and 36D of the Act.

THE respondent while controverting the allegations of the petitioner submitted that the petitioner is a rank defaulter inasmuch as she has not paid any-amount towards reservation charges and instalments whatsoever since the date of registration of plot, i.e. 17.9.1991. Since the petitioner is a defaulter, therefore, it is submitted that the question ef granting any relief in favour of the petitioner including that of handing over possession of the plot or setting aside the cancellation of plot does not arise. While giving the parawise reply to the petitioner''s allegations and giving reference of the terms and conditions of the Brochure, in nutshell it is contended that no case for grant of any relief is made out and, therefore, the case, as set out by the petitioner, deserves to be rejected. It is also stated that no case was made out for any enquiry as set out in the Notice of Enquiry, i.e. under Sections 36A, 36B and 36D of the Act and under Regulation 51 of the M.R.T.P.C. Regulations, 1991 framed under the Act. The petitioner also filed the rejoinder to the reply filed by the respondent. The Commission after considering the rival pleadings of the parties on record and documents, has framed the following issues : (1) Whether the respondent has been or is indulging in unfair trade practice as alleged in the complaint ? (2) If so, whether such unfair trade practice is prejudicial to public interest or affecting the consumer or consumers generally ? (3) Relief, if any.

ON analysing the material on record carefully so as to arrive at a decision regarding unfair trade practice as alleged by the petitioner against the respondent, at the threshold we have to see as to whether the petitioner has performed her part in complying with the terms and conditions of the Brochure and Table-I, which is the subject-matter of the Agreement arrived at between the parties, and it is the respondent who by adopting unfair trade practice has deprived the petitioner of her legitimate right to have the plot allotted in her favour or cancelled the allotment illegally. The Brochure relating to the Indira Puram Township Plot Scheme Code 596, which contains the terms and conditions, is placed on record. According to the Scheme, the applications for allotment of plots are invited through the Brochure. Pursuant to it the petitioner had deposited only registration amount, i.e. Rs. 46,240/- including that of Rs. 20/- as registration fee. According to terms of the Brochure, i.e. 3.3, soon after the registration, within a month from the date of depositing the registration amount, the amount mentioned in Column No. 8, i.e. reservation amount at Rs. 69,300/-, was required to be deposited and the balance amount vide terms 3.44 of Brochure and Column No. 9 of Table-I was to be deposited within three years in six equal instalments with interest @ 15%. The approximate cost of the plot was Rs. 4,62,000/-. It has not been disputed that except the registration amount, the petitioner has not deposited any other amount either towards reservation or instalments with interest despite receipt of the notice issued by the respondent. However, it is contended by the learned Counsel that a wrong date was mentioned in the letter and this has misled the petitioner. If it was so, to show her bona fide the petitioner should have approached the respondent with a written submission for seeking clarification of the date of deposit, etc. so as to comply with the terms and conditions of the Brochure. The terms and condition No. 3.43 of the Brochure, referred to above, the petitioner was required to deposit the amount towards the reservation charges and should have continued to pay the instalments as mentioned in Column 8 of Table-I within thirty days from the date of reservation letter. As such, no sooner the petitioner had received the letter, she should have complied with the terms and conditions of the Brochure and should have deposited the amount of reservation and/or should have asked for the clarification of the letter said to have misled the petitioner.

THOUGH the learned Counsel appearing for the petitioner stated that on a number of occasions the petitioner had visited the respondent but of no avail, however, he could not lay his hands pointing out towards any documentary evidence in this regard that the petitioner did approach the Authorities concerned. In the absence of any cogent documentary evidence, it is difficult to rely upon the uncorroborated oral statement alone that the petitioner visited the office of the respondent.

THE learned Counsel appearing for the respondent had also invited our attention to the terms and conditions contained at 3.66 of the Brochure which emphatically extends powers and authority to the respondent to cancel the allotment for committing default by the petitioner. For the brevity sake, it is reproduced hereunder : "If the payment is not made within three months after due date along with penal interest, if any, the allotment shall be treated as cancelled without notice." This being so, the words used "shall be treated as cancelled" applies the deeming fiction which means when a fact is to be deemed its consequences and incidents are also to be deemed. That is to say what follows from the deemed fact is also to be deemed for defaulters and if allotment is deemed to have been cancelled for want of depositing the amount, i.e. towards reservation and instalment charges with penal interest in time the next stage of draw of lots, etc. does not arise and allotment is deemed to have been cancelled.

This being the state of affairs, in our opinion, the Issue No. 1 is decided against the petitioner as no material is placed to show that the petitioner has complied with the terms and conditions of the Brochure in depositing the reservation amount and instalments in due time in performing her part, in discharging the burden of proof and proving respondent''s indulgence in unfair trade practice, etc. as alleged by her and the said unfair trade practice is prejudicial to public interest or affecting the consumer or consumers generally.

THUS, in our opinion, the petitioner has miserably failed to prove her case as set out by her that the respondent has been or is indulging in unfair, trade practice and such trade practice is prejudicial to the public interest or affecting the consumer or consumers generally. This being so, the petition deserves to be dismissed and accordingly it is dismissed. Notice of Enquiry stands discharged. No order as to costs. If the petitioner moves an application to the respondent for refund of the amount so deposited by her towards registration charges, the same may be refunded to her. Petition dismissed.