CHAIRMAN, URBAN IMPROVEMENT TRUST vs VIJAY SONI

BY this appeal under Section 15 of the Consumer Protection Act, 1986 ("the Act" herein) the opposite parties-appellants question the legality and correctness of the order dated 19.2.92 passed by the District Forum, Sri Ganganagar in Compaint Case No. 185/91. The complainant-respondent filed a complaint under Section 12 of the Act. The subject-matter of the complaint is Sukhadia Nagar, Sector No. II, the land reserved for park. It was prayed that a direction should be issued that it should not be transferred and a park may be established/constructed and to award compensation to the tune of Rs. 20,000/-. The case of the complainant is that the opposite parties prepared a scheme in Sukhadia Nagar, Sri Ganganagar for residential plots in March, 1983. According to that plots of different sizes were to be made available. The complainant submitted an application on which a plot measuring 39'' X 96''i.e. 250sq.mts.was allotted. The complainant was allotted plot No. 2-C-8 and Patta was issued in favour of the complainant. The complainant has alleged that in the blue print place of park and Institution were reserved which were to be constructed by the opposite parties. According to the complainant this amounted to rendering of service. The complainant has alleged that the opposite parties has realised urban assessment tax from the allottees of the plots and the complainant is required to deposit Rs. 624/- per year. It was alleged that in Sector II, land for park was reserved but its establishment/construction was not done. That on the land for the park in front of the plot that was allotted to the complainant, there are very harmful trees and plants etc. on account of which mosquitoes and insects fly. The complainant and the member of his family have suffered from malaria. The inhabitants of the colony had built drains on account of which the dirty water collects and there is mud in the complain ant''s house. That on the land of the park, the persons residing in ''Kacchi Basti'' go to attend the call of nature. The complainant''s family members cannot sit on the compound wall. There is lack of fresh air on account of it. It was stated that because of the dirty surroundings, there is likelihood of mental and bodily pain. He, therefore, filed the complaint for the grant of the following reliefs :- (1) that compensation amounting to Rs. 20,000/- may be awarded; (2) that reserved land for the establishment/construction of park in Sector No. II should not be transferred; and (3) that park may be established/constructed on the land reserved for it in Sector No. II and it may be developed.

The complaint is dated 31.5.1991.

THE opposite parties filed the version of the case contesting the complaint. It was stated that the plot was allotted to the complainant on confessional price and that a park was to be provided/constructed by the opposite parties according to the blue print. It was denied that providing/construction of a park amounts to rendering of service. It was pleaded that urban assessment tax payable by the complainant is in accordance with the sale deed of the plot and that for the construction/establishment of the park no consideration was paid to the opposite parties. A park is a facility to be given without charging of fees. It was stated that for development etc. provision has been made. It was submitted that the complaint may be dismissed. The parties did not produce any evidence before the District Forum, Sriganganagar. The District Forum heard the arguments on 29.1.1992 and passed the impugned order awarding Rs. 10,000/- as compensation to the complainant and that for deficient services and carelessness and indifference, the opposite parties were made liable to pay compensation at the rate of Re. 1/- per day. Against that opposite parties-appellants have come up in appeal.

A reply to the appeal was submitted on behalf of the respondent on 20.11.92 and its copy was delivered to the learned Counsel for the opposite parties-appellants. We heard Mr. Sandeep Arora, Advocate for the appellant and Mr. Ashok Jain, authorised representative of the respondent and considered the record, order under appeal and reply to the appeal in the light of the submissions made by them.

LEARNED Counsel appearing for the appellants submitted that the complainant-respondent is not a consumer as he has not hired the services of the opposite parties and as the opposite parties were not required to render any service to the complainant, the question of deficiency does not arise. He invited our attention to Sections 8,9,29,47 and 48 of the Urban Improvement Trust Act and also to Rules 7, 8,17 and 26 framed thereunder. The complainant has not produced the sale deed which was granted to him which contains the terms and conditions of allotment. He has come forward with a case that in the blue print of Sukhadia Nagar Scheme, Sector No. II, land for park and institution was reserved and they were to be constructed by the opposite parties and also to be developed. For the establishment/construction of the park or for that matter for institution no consideration was paid by the complainant to the opposite parties. In pursuance of the sale deed urban assessment tax is recovered from the allottees which is in accordance with the terms and conditions of the allotment. No amount is being recovered from the complainant for the park. The ''Complainant'', ''Complaint'', ''Consumer'', ''Deficiency'' and ''Service'' have been defined in Section 2(1)(b), (c), (d) (g) and (o) respectively. No consideration was paid by the complainant to the opposite parties and, therefore, the complainant cannot insist for the establishment/providing a park. As the complainant has not hired the services of the opposite parties for the establishment/providing/construction of the park, it cannot be said that by not providing/constructing the park or leaving the reserved land open on account of which nuisance is caused the complainant has suffered any injury or loss on account of the negligence of the opposite parties and, therefore, the complainant is not entitled to any compensation whatsoever.

THE other reliefs which the complainant has prayed for in the complaint namely that the opposite parties may be restrained from transferring the reserved land for the construction/providing of park in Sector No. II or that a direction may be issued to the opposite parties for the construction/providing of the park in Sector No. II, on the reserved land and to develop it, they cannot be granted under Section 14(1) of the Act. It is well settled that the Redressal Forums established under the Act can grant only those reliefs which are enumerated in Section 14(1) of the Act. One relief is in the form of a mandatory direction to the opposite parties not to transfer the reserved land for the construction/providing of the park and other is also of a mandatory direction for the construction of the park and its development. Reference in this connection may be made to 1991 CSMR CAS 33, 1991 CSMR CAS 45 and 1991 CSMR CAS 41. It is, thus, clear that the Redressal Forums constituted under the Act cannot give a direction "to do or to desist" in a complaint under the Act. THE complainant-respondent was not right in invoking the provisions of the Act on the basis of the averments made in the complaint and the reliefs which he has prayed for. It may also be mentioned that the complainant was awarded Rs. 10,000/- as compensation and Re. 1/- per day for carelessness and indifference in regard to the rendering of the service. It is well settled by a catena of cases by the National Commission that a claim for compensation has to be substantiated by evidence and it has to be awarded on the basis of certain well recognized principles relating to the award of compensation and its quantification. There is absolutely no material on record to support award of compensation. The complainant has not even filed his affidavit or produced any other evidence for the award of compensation of Rs. 10,000/- and Re. 1/- per day. This is without any foundation. This direction for payment of compensation @ Re. 1/- per day is vague without specifying as to from what date the amount @ Re. 1/- per day is payable and upto what stage. From the above discussion, it follows:- (1) that the complainant is not a consumer as he cannot be said to have hired the services of the opposite parties for consideration; (2) that the reliefs which the complainant has sought in the complaint cannot be granted under Section 14(1) of the Act; and (3) that no amount of compensation can be awarded to the complainant.

FOR the aforesaid reasons, we find it difficult to sustain the order dated 19.2.92 passed by the District FORum, Sri Ganganagar against the opposite parties. It is bad in law and it is, therefore, set aside.

THE result is that the appeal succeeds and the order dated 19.2.92 passed by the District Forum, Sriganganagar is Complaint Case No. 185/91 is set aside. THE complaint shall stand dismissed. In the circumstances of the case, we leave the parties to bear their own costs of the appeal. Appeal succeeds.