ESTATE OFFICER, HUDA vs MADAN MOHAN GANDHI

FIRST Appeals No. 118 and 133 to 136 of 1993 being cross appeals arise from the virtually identical orders of the District Forum, Hisar. Learned Counsel for the parties are agreed that the issues of fact and law are common and this judgment will consequently govern all of them.

THE representative matrix of facts may be noticed from First Appeal No. 118 of 1993 H.U.D.A. of Hisar v. Mr. Madan Mohan Gandhi & Others'', with relevance to the case of the consumer/Complainant. THE Haryana Urban Development Authority had admittedly developed a colony in the police lines area at Hisar. An auction was held for the allotment of plots therein and Dr. Om Parkash one of the successful bidder made the payment of Rs. 12,800/- being 10% of the price and thereafter within the specified period deposited Rs. 19,200/- being 15% of the said price. An allotment letter dated the 20th of May, 1988 was issued in his favour and according to its terms and conditions he was required to deposit the balance amount in six half yearly installments alongwith interest at 10%. It was his case that subsequently he had made payment of all the installments due and had secured a no due certificate from the HUDA on the 13th of December, 1991. The primal grievance of the consumer was that the terms of allotment announced at the spot were categoric that the possession of the plot could be given within one year and relying thereon he had made the successful bid. Not only that the basic reliance was on Clause No. 5 of the terms and conditions admittedly recorded between the parties. This reads as under : "The possession of the site will be delivered on payment of 25% sale price (10% on the spot of bid) the purchaser shall enjoy the right of possession so long as he continues paying instalments of the price on due date and abide by other terms and conditions of allotment."

Despite the above, to the great anguish of the consumer-complainant, he had been unable to secure possession despite the passage of nearly five years thereafter. It was pleaded that the HUD A was itself charging 10% interest on the balance amount payable for installments, but there was no reciprocating provision for payment of interest despite the patent contravention of the primal term of the delivery of possession within a year.

ON notice being issued the HUDA took up preliminary jurisdictional objections that the Complainant did not come within the definition of a consumer and also raised objections to the pecuniary jurisdiction of the District Forum. ON merits the basic reliance was on condition No. 6 of the allotment letter that the possession of the site would be offered to the allottee on the completion of the development works in the area. It was consequently pleaded that the offer of possession will only be given after the completion of the development works and the implicit premise was that such development had not yet been started. The claim for interest and other reliefs was controverted. The District Forum noticed that on behalf of the HUDA a clear admission was made that no development in the area had taken place and their learned Counsel Mr. Yadav could give no time frame when the same would be done because a piquant situation has arisen, since the police Department is adamant in not vacating the area and delivered possession thereof either to the HUDA or to the allottees. It was the stand that this has created an unusual situation, the solution of which was not in sight The District Forum consequently observed that it was a case of negligence of the highest magnitude where without any development and demarcation of the plots these were auctioned and huge amounts were collected from the allottees to whom possession was being unduly delayed, if not virtually denied. Consequently, the relief was granted in the terms of a direction to pay 10% interest on the deposited amount till the offer or delivery of actual possession of the site.

MR. Sanjeev Sharma, the learned Counsel for the appellant-HUDA being apparently be raft of any challenge on merits had pinned himself on the stand that the respondent-complainant did not come within the ambit of the definition of a consumer. Our attention was drawn to the relevant definitions and the basic contention was that the transaction was one of pure sale and purchase of immovable property or of goods. Primal reliance was on a short seven lines order of the National Commission in First Appeal No. 80 of 1992 ''Ramesh Chand v. Chief Administrator, HUDA'', dated the 15th of October, 1992. Reference was also made to II (1992) CPJ 505 (NC) ''Allied (Garments) Exports Industries Pvt. Ltd. v. D.D.A. and I (1992) CPJ 303 ''Chatur Singh & Ors. v. Urban Improvement Trust''. Despite the persistence with which the aforesaid submissions was pressed before us, we are unable to find the least merit therein. Herein there is no dispute that the appellant-HUDA within the State of Haryana is a corporate body primarily engaged in serving the public in the matter of providing housing or ancillary commercial sites by acquisition of land, the development thereof, including the allotment of plots and houses to the public. It is in the pursuance of this identical activity that the police lines area was sought to be developed and allotted out to consumers by the HUDA. Mr. Sharma was fair enough to concede that the allotment letter and the hire and purchase agreement expressly visualizes the development of land which included the provisions of road, sewerage, electricity and other civic amenities. That being so, it is manifest on principle that HUDA had extended out services to the public which has been hired by the consumer-complainants for substantial consider action. Therefore, the present case purely is one of the hiring of services and a deficiency therein which is clearly within the pale of the consumer jurisdiction. It cannot even remotely be looked at as a mere out right sale and purchase of immovable property alone. Mr. Sanjeev Sharma''s reliance on Ramesh Chand v. Chief Administrator, HUDA (Supra) is obviously vain. The short order does not in the least lay down any ratio and was patently passed on the firm finding that the case was one of a pure and simple transaction of sale by auction of immovable property. Yet again the case of ''Allied (Garments) Exports Industries Private Limited v. D.D.A. (Supra) relied upon by Mr. Sharma seems to boom-rang on his stand. Therein, it was observed as follows : "We do not find possible to grant any relief to him, since the transaction was not one of allotment as part of a scheme for providing housing facility to the public, but one of out right sale of immovable property in auction."

IT would be plain from the above that the cases of allotment of plots as a part of a scheme for providing housing facility to the public would clearly and squarely come within the ambit of the consumer jurisdiction. The present case is clearly for that kind as we have already elaborated above. What has been said earlier applies equally to the Rajasthan''s State Commission case ''Chatur Singh & Ors. v. Urban Improvement Trust.

ON behalf of the respondent-consumer Mr. Surya Kant has rightly relied on Section 15 of the Haryana Urban Development Authority Act. Subsection (3) thereof clearly visualizes and authorized two modes of either auction or the allotment of plots to the consumers. It is somewhat plain there from that both the modes would make not in the least make any difference as regards the hiring out of the development services extended out with regard to the developing sites and the amenities to be provided therein. It was not disputed before us that similar if not identical conditions are attached by HUDA to the consumers who are allotted plots either by auction or by application and the draw of lots thereby or any their mode. Apart from principle, the issue herein is fully covered by both binding and persuasive precedent. The National Commission in I (1991) CPJ 1 (NC) ''U.P. Avasevam Vikas Parishad Housing & Development Board v. Garima Shukla & Others'', had held in no uncertain terms that the Housing and Development Board of U.P. in this context was extending out services which were being hired by consumer-allottees of the plots or buildings. That view was reiterated in I (1991) CPJ 7 (NC) ''U.P. Avasevam Vikas Parishad Housing & Development Board v. C.P. Sharma & Others'' and I (1991) CPJ 13 (NC) ''Mrs. Sneh Chadda v. Delhi Development Authority''. The National Commission has unhesitatingly adhered to this view in a catena of cases thereafter to which individual reference is unnecessary. As regards persuasive precedents, reference may be made to the lucid order of the Delhi State Commission in I (1991) CPJ 662 ''G.S. Kushwaha v. Sushil Ansal & Ors''.

In view of the above, the primal stand of the appellant-HUDA must be rejected. However, in fairness to Mr. Sharma, we may also notice his ancillary submission that no time-frame for possession having been provided, the same was to be done in a reasonable time. It was somewhat half-heartedly submitted that the appellant''s case would come within the rules.

PLAINLY enough, the argument has only to be rejected. Herein, it is manifest that nearly five years have elapsed since the hopeless consumers have been knocking at the door of the HUDA for possession without the least redress. Not only that the position taken before the District Forum and equally before us is that there is little hope of the area being vacated which is being adamantly held in possession by the police authorities. The HUDA cannot even give a remote time frame within which the possession can be given. In this context to say that there is only a reasonable delay in offering possession, would be a travers of justice. For the fore-going reasons, the first Appeals No. 118 of 1993 ''HUDA v. Mr. Madan Mohan Gandhi & Others'' and 136 of 1993 ''Estate Officer, HUDA, Hisar v. Dr. Partap Singh and Others'', preferred by H.U.D.A. are without merit and are dismissed with costs which are assessed at a sum of Rs. 500/- only in each appeal.

IN the cross appeals preferred by the appellants, their learned Counsel have rightly contended that the District Forum has erred and has been overly conservative in granting interest only at a marginal rate of 10% till a meaningful offer of possession is actually made. The aforesaid submission is patently meritorious. The District Forum appears to have granted this wholly uneconomic rate of interest on the parity of the terms and conditions apparently on the ground that insomewhat similar conditions the HUDA charged this rate on the differed payment of installments. Herein, the issue is not one of contractual rate of interest, but infact the grant of compensation for the patent deficiency in services undertaken by the HUDA with regard to its consumers. In this situation, the appellants are obviously entitled to at least a market rate of interest if not a penal one. Consequently, we allow these appeals and modify the rate of interest at 18% per annum whilst declining to enter further the thicket of altogether remote damages with regard to the rise in the costs of construction and other special financial consequences suffered by the appellants. First Appeals No. 133 to 135 of 1993 are consequently allowed in these terms with costs which are assessed at a sum of Rs. 500/- in each appeal. Appeals No. 118 & 136 dismissed with costs. Appeals No. 133 to 135 allowed with costs.