AVAS COMMISSIONER, U.P. AVAS And VIKAS PARISHAD, LUCKNOW vs Ashok Kumar Garg

-THIS is an appeal filed by U.P. Avas & Vikas Parisad and others against the order dated 30.7.1992 Passed in Case No. 45/92 Ashok Kumar Garg and others by the District Forum, Agra directing the appellant-Opposite Party to refund Rs. 10567.20 with 6% per annum interest from the date of its deposit to date of institution of the complaint in the Forum which is 5.10.1989 and thereafter at the rate of 12% per annum to the date of the payment and also to pay in addition thereto compensation of Rs. 1500/- for mental agony and physical harassment in given period as the appellant could not deliver the possession of the allotted land despite the deposit of the entire money demanded by it on the request of the complainant and ultimately cancelled the allotment and tried to refund the amount by cheque which was returned to it by the complainant who not being satisfied with interest and other issues returned it but lost as stated by both the parties and in result the complainant could not get the amount which be deposited as alleged and admitted by the Opposite Party appellant.

WE have heard Sri S.B. Lal, Advocate on behalf of the appellant and Sri Rajesh Chadha, Advocate for the respondentcomplainant for quite some time on two days. From the arguments of both the Counsel and the findings given in the order under appeal by the District Forum there appears no dispute regarding the application of the complainant for allotment of the land measuring 70.88 sq. meters adjecent to his house No. A-457 in transyamuna colony its allotment by the appellant and demand of Rs. 10567.20 and its deposits in Punjab National Bank on the dates, direction to the Executive Engineer of the Parishad to deliver possession of the same land and thereafter abrupt cancellation of the same after some time before giving possession and sending of refund of the deposited money alongwith interest at 6% through a cheque and its return and non-payment to the complainant-respondent ultimately. The appellant has assailed the impugned order dated 30.7.1992 mainly on the ground of the jurisdiction of the Consumer Forum saying that the complainant is not Consumer and the appellant U.P. Avas & Vikas Parishad has not done any service as defined under Section 2(1)(o) of the Consumer Protection Act 1986. According to it, in this case, the complainant was not a registered candidate in any housing scheme for the allotment of the land in dispute and the Avas & Vikas Parishad allots land on sale or hire purchase agreement only to the registered candidates. It is a simple case of allotment and cancellation of the immovable property which is not covered under the provisions of the Consumer Protection Act 1986. Hence the District Forum''s order is without jurisdiction.

In support of the above contention made by learned Counsel (Sri S.B. Lal) for the appellant has relied upon the case decided by the National Commission in Appeal No. 71/1992 decided on 9.12.1992 M/s. Ravin Bharti Land Development & Finance Pvt. Ltd. v. Punjab National Bank and Others II (1993) CPJ 166 (NC) but the facts of this case are totally different to the facts of the case under appeal and does not help the appellant.

HE also referred to another case II (1993) CPJ 608 Commissioner Municipal Corporation v. Rajesh Singh decided by M.P. State Commission on 7.11.1992 in Appeal No. 705/ 1992. But the facts of this case too, are not similar to the facts of the present case under appeal. Moreover above cited cases are not of any help to this case in the light of the important & land mark decision given by the Supreme Court in Lucknow Development Authority v. M.K. Gupta III (1993) CPJ 7 (SC) in which housing activities by such authorities and other Builders have been held as performing ''service'' and brought under the ambit of the Consumer Protection Act 1986. The Consumer Protection (Amendment) Act 1993 has also amended the definition of ''SERVICE'' under Section 2(1)(o) so as to expressly bring the "Housing Construction" within its scope.

THE U.P. Avas & Vikas Parishad acquires the land, develops it and makes available either the developed plots for housing or built houses thereon for the public for consideration either on outright sale or on hire purchase system as per the schemes rules made for it. The learned Counsel, Sri Lai has, during the arguments, brought on record the regulation of the year 1979 framed by the U.P. Avas & Vikas Parishad with regard to Registration of the plots and houses and their allotment as amended in June 1986 in support of his plea that the plots of land or houses can only be allotted to the registered candidates and none else and since (as is evident from the facts of this case) the complaint was not registered as a candidate for the plot in question though the same was allotted to him on payment of the requisite amount asked by the appellant and lateron when the complainant tried to take possession it was found disputed and consequently allotment was cancelled and the deposited amount was refunded with interest through the cheque though could not be cashed by him at his own choice. Since he is not a proper candidate he cannot be termed or treated as a bonafide Consumer and a such cannot approach the District Forum under the Consumer Protection Act 1986. This plea of Sri Lal has no force at all on the face of facts of this case and rules framed by the U.P. Avas & Vikas Parishad itself as brought on record by him during his argument. Rule 16(2) and provision to it under the head "Pradeshan" has made exception for allotment of such left over plots or houses under any scheme. In the present case the plot of land in question which was allotted tothe respondent-complainant was of similar nature which could be allotted to nonresigtered candidate desirous of allotment of such land on the principle of "first come & first served" and it also depends on the sole discretion of the Housing Commissioner of the Parishad. The argument of Sri Lal contrary to this provision is untenable.

FOR these reasons as discussed above and on the face of the facts as mentioned by the complainant and found by the District FORum in its order it is will settled that the U.P. Avas & Vikas Parishad which has been doing the Housing Activities including the development of plots for housing purposes has been providing ''service'' as defined in Section 2(1)(o) of the Consumer Protection Act 1986 and as such in the present case the appellant Parishad has committed deficiency in performance of service firstly in accepting the applications of the complainant for allotment and offered the plot subject to payment of the consideration of Rs. 10567.20 and secondly asked to take possession but lateron unilaterally cancelled the same without offering him any opportunity to hear and more so without first verifying the fact about the plo in question whether it belongs to it or the possession thereof can be handed over to him. This is very serious negligence of duty on the part of the appellant and amounts to deficiency in service which has caused harassment to the complainant who is a consumer and therefore he rightly approached the Consumer FORum to seek redressal under Section 12 of the Consumer Protection Act 1986.

THE next ground taken in the appeal is that the District Forum has not properly appreciated the evidence of the appellant and has erred in directing the appellant to pay compensation of Rs. 1500/- to the complainant while there is no deficiency on the part of the appellant. It has stated on behalf of the appellant in this connection that as soon as it came to the notice of the appellant it cancelled the allotment as the possession could not be given to him being the plot in dispute as it was not acquired and the deposit made by the complainant was refunded alongwith interest of 6% per annum as per rule and the cheque of the amount was sent by post but not cashed as admitted by the complainant at his own discretion and the cheque was never got back by the appellant though the complainant has asserted that it had been returned to it. Hence the appellant is not to be held liable to any compensation for the bonafide act of the complainant in this regard. On this contention of the appellant the District Forum has considered the facts on record and there appears no ambiguity as we have already discussed earlier. The fact is that the allotment was cancelled unilaterally after accepting the deposit on 21.2.1989 and 24.2.89 and possession could not be delivered despite the best efforts made by the complainant several times and the fact of the cancellation of allotment was also not formally communicated to him before filing his present complaint and his deposited money was sent by a cheque thereafter as is evident from the letter No. 6006 dated 27.9.89 and intimation of the cancellation of the allotment was also sent by the letter dated 25.7.1989. All these acts on the part of the appellant have caused mental agony and physical harassment to the complainant as held by the District Forum and we do not see any reason to interfere with this finding of the District Forum which is just in the circumstances of this case and the award of Rs. 1500/- as compensation is also reasonable and does not warrant any interference. ORDER For these reasons the order of the District Forum is upheld on law and facts both and appeal is therefore dismissed with costs which we assess it to be Rs. 1,000/- to be paid by the appellant to the respondent-complainant within 30 days failing which an interest of 15% per annum will be chargeable till the actual payment. Appeal dismissed.