DEVKI RANI vs HARYANA URBAN DEVELOPMENT AUTHORITY

FIRST Appeal Nos. 338 & 353 of 1992 being cross appeals are directed against the same order of the District Forum, Jind. Learned Counsel for the parties are agreed that this order will govern both of them.

WAY back on the 15th of April, 1988, Devki Rani, complainant purchased a shop-cum-flat No. 23 in Jind for Rs. 2,44,000/- in an auction held by the Haryana Urban Development Authority (hereinafter called the ''HUDA''). Admittedly, this purchase was made on the basis of a well-publicised lay-out plan indicating that the area would be fully developed and all the civic amenities like roads, electricity, parking, drinking water and sewerage would be provided expeditiously. In accordance with the conditions of the auction, 10% of the bid money was deposited at the spot itself and 15% of the sale price was deposited at the time of allotment and the balance of 75% was to be paid in eight equal instalments. The HUDA had undertaken to complete the development works and deliver the possession of the plot thereafter on compliance with the other terms & conditions. The complainant''s case was that she had already paid 82% of the sale price in four protracted years which have elapsed since the date of allotment. But there was a marginal default in the payment of one instalment due on the 31st of May, 1991 for which a fine and interest to the tune of Rs. 2,060/- was imposed. The primal grievance was that despite the payment of more than 80% of the sale price, no corresponding observance of the terms and conditions was made and no development in the area in question except laying down a few roads had been done. Aggrieved by the gross delay a compensation of Rs. 90,000/- was claimed as also the setting-aside of the fine and interest charges of Rs. 2,060/- aforementioned. It was also prayed that the payment of subsequent instalments be stayed till possession is delivered by the HUDA. On notice being issued, the HUDA controverted the averments made in the complaint and despite the non-completion of the development works for well nigh five years after the launching of the colony still claimed the fine and interest for a mere delay in paying one instalment.

The District Forum noticed that both the pa rites were called upon to adduce evidence in support of their respective stands but they rested themselves content on the pleadings and documents on the record.

THE District Forum on a consideration of the materials and the arguments of the parties apparently found patent default on the part of the HUDA for failure to complete the development works within four to five years after the launching of the scheme. In this fact situation, it found the demand of fine and interest was unjustifiable and directed the refund thereof with a direction that the development works be completed within six months. As already noticed, both the parties have come up by way of appeals. The complainant-appelant primarily seeks compensation to the tune of Rs. 90,000/- for gross delay and default for the non-completion of the development works and the conesuent delay in delivery of possession. On the other hand, the HUDA in a somewhat belated appeal the delay whereof was condoned had assailed the very jurisdiction of the District Forum to grant relief.

MR. M.L. Saini, the learned Advocate of the consumer-appellant has forcefully argued that despite the absence of specific evidence on the quantum of compensation, the District Forum should have taken note of the patent and gross delay in the delivery of possession and the manifest loss and harassment caused to the consumer-allottees. There is some modicum of merit in the aforesaid submission but it would appear that the appellant has only herself to blame for being non-suited in this context. It is true that on the record the patent default in failing to reasonably complete the development works even four to five/ years after launching the scheme or making allotment in open auction, would merit relief within the consumer jurisdiction. However, it is elementary that for claiming a large sum of Rs. 90,000/- some foundational base of evidence however marginal, has to be laid. The National Commission has now veered over to the view that on quantum of damages if the matter is self-evident, no specific evidence may be necessary. This may well be sc but in a case of the present kind where despite opportunity having been given, the appellants did not adduce any evidence in support of their case and in particular the nature of loss or injury, it is difficult if not impossible to enhance the relief or compensation granted by the District Forum. The consumer-appellant''s claim must therefore, fail on this short ground. As regards First Appeal No. 353 of 1992, Mr. O.P. Sharma''s main plank is that the District Forum had no jurisdiction to entertain the complaint because it pertained to a semi-commercial plot purchased in an auction and was therefore, not within the arena of consumer jurisdiction.

WHAT first militates against the aforesaid plea is the fact that the same does not even remotely seems to have been urged before the District Forum. There is not a hint or an indication in the order under appeal that any jurisdictional objection was seriously pressed either at the threshold stage of the entertain-ment of the lis or even at the stage of final arguments. This would by itself preclude the appellant to raise a somewhat belated plea. By now it is well-settled that jurisdictional objections have to be raised and pressed at the very threshold and a litigant cannot be allowed to sit on the fence and participate in the adjudication of a lis and when the decision goes against him to then assail the jurisdictional aspect. It bears repetition that the present appeal was also preferred beyond the prescribed time. Be that as it may, the appellant herein deserves to be non-suited on the ground of not pressing the preliminary jurisdictional objections at its very inception.

APART from the above, even in the alternative we find no merit in the plea that is now sought to be raised by Mr. O.P. Sharma-. Primal reliance was placed on II (1991) CPJ 537, H.S. Naik v. Bangalore Dev. Authority. On the basis of a passing observation therein, it was contended that the present case was one of the outright sale of immovable property and thereore, the whole transaction was beyond the pale of consumer jurisdiction. It is somewhat plain that herein, the factual position is radically different and the observations in the aforesaid case are not in the least attracted. It is common ground that HUDA is a statutory organisation, primarily engaged in the development of residential-cum-commercial colonies and provide the civic services therein like roads, electricity, parking, drinking water and sewerage etc. Far from being an outright sale herein the case was of payment by instalments with corresponding observance of HUDA to complete the development works and thereafter deliver the possession of the plot. In such a situation, it is now idle to contend that the case would not involve the hiring of the services of a promoter-builder by the consumer-allottee for a consideration. It is unnecessary to labour the point because the National Commission has reiterated its view afresh in II (1992) CPJ 437 (NC), Lucknow Development Authortiy v. M.M. Sood. Therein, repelling an identical contention now sought to be raised by Mr. O.P. Sharma it was summarily observed as follows :- "It is necessary to mention that the Counsel for the appellant raised a preliminary objection that the Lucknow Development Authority does not come within the scope of the Consumer Protection Act as it is not an organisation rendering ''service'' as defined in the Act. This contention cannot stand in view of the decisions already rendered by us in First Appeal No. 5 of 1989 U.P. Avas Evam Vikas Parishad, Lucknow v. Garima Shukla & Ors. I (1991) CPJ 1 (NC) and the subsequent cases following it."

In the light of the afore-quoted ratio, the basic plea of Mr. O.P. Sharma, in First Appeal No. 353 of 1992 must fail.

FOR the foregoing reasons, both the First Appeal Nos. 338 and 353 of 1992 are held to be without merit and are hereby dismissed. We leave the parties to bear their own costs. Appeals dismissed.