B.L. BHARDWAJ vs GOVERNMENT OF HARYANA

FIRST Appeal Nos. 198 and 201 of 1994 are directed against the same order of the District Forum, Gurgaon partly allowing the complaint. The issues of fact and law being identical, this order will govern both of them.

THE case discloses a blatent deficiency in the services undertaken and extended out by the H.U.D.A. THE salient facts which stand out are that the complainant admittedly was a Class I Officer of the Government of Haryana and impending his retirement, he applied to the Chief Administrator, HUDA for the allotment of a plot. By an allotment order dated the 4th of April, 1986, plot No. 1561 (preferential) in Sector 23-A, Gurgaon was duly allotted to him. Because of its preferential nature, extra payment of 10% of the price was to be paid and the entire sale consideration including the additional amount on account of the enhancement of the price by the Courts was duly tendered and accepted in accordance with the conditions of allotment. Apparently, after his retirement in 1987, the complainant to his consternation, received intimation vide letter dated 11th of September, 1987 that the allotment aforesaid had been cancelled. Aggrieved thereby, representation were made against the said cancellation, but it took the HUDA nearly two years to with draw the said cancellation on the 20th of November, 1989 vide Annexure P-4. However, the consumer-complainant was not still left in peace and a year later by a communication dated the 21st of November, 1990, he was informed that his preferential Plot No. 1561 had been substituted unilaterally by an altogether different Plot No. 4241, which was not preferential. Inevitably, the complainant again ran from pillar to post to have this illegal substitution rectified and brought to the notice of the authorities that another Plot No. 1937 preferential in the same sector was lying unallotted and he may be given the same, in lieu of his original preferential plot. That request of the respondent was acceded to and he was then allotted Plot No. 1937 (Preferential) vide letter dated the 20th of April, 1991 Annexure P-6. It would appear that not content with the above, HUDA yet again cancelled the aforesaid allotment of Plot No. 1937 vide letter dated the 5th of September, 1991 (Annexure 1). The complainant again had to leave no stone unturned for seeking redress against the latest hardship and he heaved a sigh of relief, when he was informed that it had been decided to allot him Plot No. 1937 (Preferential) vide letter dated the 14th of August, 1992. However, in the meantime in July 1992, the said plot had been allotted to one Mrs. Kishna Jain, with the result that he was left completely in the lurch despite having paid the full price of a preferential site originally allotted to him in April 1986. Thereafter the complaint was preferred before the District Forum for a direction to the HUDA to allot him a suitable plot and to pay Rs. 30,000/- as compensation on account of harassment, mental agony and peculiar loss suffered by him for the trouble of not getting a plot in 7-8 years, and also a sum of Rs. 50,000/- because the costs of construction of a house had jumped man-folds meanwhile.

On notice, the HUDA was compelled to admit the broad factual matrix alleged by the complainant. It was vaguely pleaded that due to some policy decision, the allotment of the original Plot No. 1561 was cancelled, but later on the said cancellation was revoked again on account of some policy decision. The further plea was that the said plot was omitted from the lay out plan as it no longer existed on the site and hence Plot No. 4249 was allotted to the complainant, which again was substituted by Plot No. 1937. However, this allotment was also withdrawn and as such Plot No. 4249 in Sector 23 stood allotted to the complainant. It was virtually admitted that by patent in advertance a plot already allotted to Smt. Krishna Jain has been allotted and the plea taken was that Plot No. 4249 continued to stand in the complainant''s name, but neither the possession thereof was offered to be delivered and instead it was the case that the same was still under litigation and no foreseeable date for delivery or possession could even be indicated.

THE aforesaid resume of facts speaks for itself and the District Forum on the basis of the materials before, it concluded as under: "From the above facts it is evident that from April 1986 to August 1992 the complainant was being given one shock after the other and he had to run from pillar to post but ultimately with no result. He was not given any preferential plot. THE original preferential plot had been snatched from him and then it was again given to him but then it was even omitted from the map. He received several letters regarding the allotment of another preferential plot but ultimately that plot too was snatched. He was allotted a non-preferential plot in the said area but the same was under litigation and it is not known when the litigation will come to end and in whose favour."

On the aforesaid findings, the relief granted was a direction to deliver possession of an alternative plot to the complainant in the same sector or an adjoining one on the same terms and in the peculiar context a somewhat unsubstantial compensation of Rs. 11,000/- was allowed.

IN First Appeal No. 201 of 1994, Mr. K.K. Gupta, the learned Counsel for the appellant-HUDA being patently bereft from any meaningful argument had attempted to content that the respondent-allottee was not a consumer. The hackneyed contention was that the services extended out by the appellantAuthority were with regard to immovable property and, therefore, did not come within the consumer jurisdiction. The contention aforesaid has only to be noticed and rejected. By now precedent it legion on the point that the HUDA in extending out its services for urban development and housing construction is squarely within the consumer jurisdiction vis-a-vis the allottees of its plots. It is unnecessary to multiply authority on the point because the same has been repeatedly so held by the binding precedents of the National Commission itself. However, the final stamp of authority on the point was rendered by the recent Supreme Court judgment in III (1993) CPJ 7 (SC) ''Lucknow Development Authority v. M.K. Gupta''. Mr. Gupta had then somewhat curiously contended that the original Plot No. 1561 did not exists upon the site and, therefore, inevitably could not be allotted and was unilaterally withdrawn and alternate non-preferential plot substituted, therefor. This submission again virtually highlights the patent deficiency on the part of the said Authority. It is curious that the HUDA who allotted a non-existent plot to an unsuspecting allottee, and accepts full payment, therefor (including the additional price for a preferential plot) and the subsequent enhancement by the Courts can not cooly turned round to say that infact no such plot existed. It seems that such a plea only adds insult to the injury inflicted upon the respondent-consumer.

SOMEWHAT half-heartedly Mr. Gupta had then attempted to submit that by an inadvertent error an already allotted plot had been given to the respondent and the existing Plot No. 4241 was under litigation, the end of which cannot be foreseen.

THE aforesaid submission seems to drive the last nail in the coffin of the HUDA''s appeal. THE admission that glaring errors like alloting a plot already standing in the name of another and offering one with regard to which the delivery of possession cannot at all be foreseen, would bring the matter clearly within the ambit of a patent deficiency in the services which the Authority extends out to consumer and citizens for sizeable consideration. In the light of the above First Appeal No. 201 of 1994 preferred by the HUDA must fail and is hereby dismissed with costs which are assessed at a sum of Rs. 500/- only.

On the findings recorded above, it necessarily follows that the consumer-appellant must succeed in his claim for an enhanced compensation. It could not be disputed before us that a sum of Rs. 1,03,000/- in all had been fully paid by him in total satisfaction of the price of the plot originally allotted to him and he has been left high and dry after his retirement despite the passage of more than eight years from the original date for allotment on the 4th of April, 1986. The harassment and the mental agony in this context is writ large on the face of it. Mr. Bhardwaj highlighted that during this period the financial burden, he had to carry for persistently following his case through a maize of allotments, cancellations, revocations and reallotments etc. in itself was more than the sum of Rs. 30,000/- he had claimed. The inevitable loss which will fall upon him because of the escalation of the costs of construction for his residential house over seven years was earnestly pleaded as much more than Rs. 50,000/-.

THERE is merit in the aforesaid stand and in the peculiarities of this case, the sum of Rs. 11,000/- awarded by the District Forum appears to us as wholly inadequate. Without entering into the niceties of the details, it appears to us that a sum of Rs. 30,000/- as originally claimed by this appellant alone would meet the ends of justice. We are unable however, to accept his plea that he should be compensated for the somewhat conjectural claim of the likely escalated costs of construction. For the fore-going reasons First Appeal No. 198 of 1994 of the consumer-appellant is hereby allowed and the compensation granted is enhanced to Rs. 30,000/- only. This shall be tendered to him within one month from today, failing which compliance will be enforced by the District Forum itself under Section 27 of the Act. There will however, be no order as to costs in this appeal. F.A. No. 198 allowed. F.A. No. 201 dismissed with costs.