K.SAKSENA vs GHAZIABAD DEVELOPMENT AUTHORITY

ACCORDING to the allegations in the complaint the Opposite Party, Ghaziabad Development Authority (for short GDA) invited applications upto 28th February, 1981 for allotment of residential plots situated in different colonies developed by GDA viz., Nehru Nagar, Raj Nagar, Vijay Nagar Lohia Nagar, Sastri Nagar and Rajendra Nagar through its advertisement published in the Hindustan Times dated 11th February, 1981. Allotment of the plots was to be made by drawn of lots on the terms and conditions contained in the Rules and Regulations enclosed alongwith the application form. Complainant No. 1 Smt. K. Saksena and her husband submitted 8 applications alongwith earnest money of Rs. 500/- with each application on 18thFebruary, 1981 for allotment of one plot in any of the offered colonies except Raj Nagar and Lohia Nagar (it may be mentioned here that Complainant No. 2 is a Consumer Association). In the draw of lots only one application which was in the name of Complainant No. 1 was successful. Plot No. SK -26 measuring 393.32 sq. mts. in Sastri Nagar residential colony at the rate of Rs. 65/- per meter plusRs.2/-persq.mtr.beingthecornerplotwas allotted to her in August, 1981. The cost of the plot of land demanded by GDA was Rs. 26,352.44 and in case of lumpsum payment a rebate of Rs. 1,054.10 was to be given. After deducting Rs. 500/- that was already deposited with the application the net amount payable in lump sum came to Rs. 24,791.34. The said amount alongwith interest amounting to Rs. 60 / - was paid by her on 12th October, 1981 i.e. within the prescribed time. Vide letter dated 18th March, 1986 GDA directed Complainant No. 1 to take possession of the allotted plot of land within three months failing which watch and ward fee was to be charged and after 6 months allotment of plot of land was liable to be cancelled. However, possession of the plot could not be handed over to the Complainant No. 1 due to the existence of one big size water tank of the Irrigation Department on the said plot of land which was not got removed by the GDA. The Complainant No. 1 made requests verbally as well as in writing for removal of the defects on the plot and to render the service as expected by removing the water tank and by handing over possession of the plot to her without

NY encumbrance. However, GDA did not respond to her request. Complainant No. 1 on 23rd January, 1987 through a lawyer served a legal notice on GDA for handing over possession of the plot of land and payment of Rs. 2 lacs as compensation. GDA vide letter dated 10th March, 1987 allotted another plot No. III-M/45-A, Nehru Nagar measuring about 500 sq. metres in lieu of Plot No. SK-26, Sastri Nagar to Com-plainantNo. 1 and further directed her to deposit Rs. 500/- as transfer fee upto 20th March, 1987. In the said letter it was further stated that the other information was being sent separately. Since then no terms and conditions for changed plot of land were issued to her, it meant that the GDA exchanged the plot on the same terms and conditions as contained the brochure of the year 1980-81 nad press advertisement dated 1 lth February, 1981. Even fairness and reasonableness required this treatment. Though Complainant No.l should not have been asked to deposit Rs. 500/- as transfer fee but under threat she had deposited that amount on 10th March, 1987 and intimated the GDA to deliver possession of exchanged plot. The Complainant No.l also made verbal requests for the site-plan of the plot but she was informed that the same was under preparation. The site-plan of the said plot has not been supplied to her upto this day. Though the Complainant No. 1 had not received any further communication from GDA after 10th March, 1987, she remitted demand draft for Rs. 21,000/- on 21st March, 1987 towards part-payment of the plot of land No. III-M/45-A, Nehru Nagar considering the increase in area. Complainant No. 1 also made requests to GDA to register the said plot in the joint names of herself and her husband to meet the statutory requirements for securing loan by her husband from his employer. However, this request has not been granted by the GDA so far. Vide letter dated 12th May, 1987 GDA made a demand for Rs. 1,78,308/- towards the premium of plot within one month failing which interest at the rate of 18% per annum was to be charged. The demand appeared to have been worked out on the basis of rate prevailing in 1987. The demand letter was not in joint names of herself and her husband and it also did not detail the dimensions of the plot and the rate at the which it was offered to her. It was the further case of the Complainants that the GDA cannot take benefit of its own deficient service if it allowed the Irrigation Department to continue in possession by keeping their water tank on the plot earlier allotted to Complainant No. 1, she cannot be burdened with unjust extra cost arbitarily. In any case, she could not have been asked to pay higher rates for the alternative plot in the circumstances of the case. The Complainant protested to the GDA and wrote that the cost of the changed plot be worked out according to 1981 sector rates for equivalent area of 393.32 sq. mts (the size of the plot No. SK-26) and for the remaining extra area the rate could be charged as prevailing in 1987 and therefore the revised demand be sent in the joint names i.e. for herself and her husband. When the Complainant did not receive any reply to her request, she calculated the price of the changed plot of land in the manner stated above and after deducted the amount of already paid, she sent Rs. 59,624/- (Draft for Rs. 19,624/- and pay order for Rs. 40,000/- on 27th July, 1987). However, GDA refused to accept that draft and pay order treating it as part payment and returned them to her vide letter dated 1 lth November, 1987. Thereafter the Complainant wrote a letter dated 4th December, 1987 followed by reminder to GDA requesting that the decision of her representation dated 16th May, 1987 be communicated to her in the light of the legal notice dated 23rd January, 1987 and since the payment of Rs. 21,000/- already remitted on 21st March, 1987 was accepted by the GDA as part-payment and then why the payment of Rs. 59,624/- was not accepted. She again sent the draft and pay order after revalidation. The GDA vide letter dated 5th April, 1988 again returned the pay order and demand draft stated that part-payment could not be accepted. She was further advised to deposit Rs. 1,78,308/- alongwith interest upto 15th April, 1988 failing which cancellation of the allotment would be considered. On receipt of the said letter the Complainant made various representations to various authorities including Minister for Department of Urban Housing and Development, Government of U.P., Lucknow. Representations were also made to various authorities of GDA. However, upto this time her request has not been heard. The Complainant No. 1 assessed her financial loss to the tune of Rs. 14.37 lac on various counts as detailed in para 46 of the complaint caused to her due to the negligent and deficient service of GDA.

THE complaint was contested by the Opposite Party i.e. the GDA. It was admitted that possession of Plot No. SK-26 could not be given to Complainant No. 1 because of the placement of a water tank of Irrigation Department and since the same could not be got removed, Plot No. IH-M/45-A in Nehru Nagar was allotted to her on 10th March, 1987. The Complainant herself was liable for the lapse on one ground or the other in not taking possession of the changed plot. Under the Rules escalation in price and demand is permissible.

BEFORE proceeding further we may mention here that in the complaint, the Complainant has also averred that in the year 1988-89 the water tank standing on Plot No. SK-26, Sastri Nagar was dismantled and instead of handing over its possession to her the same was allotted to someone else. However, before the water tank on Plot No. SK-26 was dismantled the Complainant was allotted Plot No. Ill M/45-A in Nehru Nagar vide letter dated 10th March, 1987(atpage 33 of the paper book). The Complainant No. 1 dated accepted that alternative plot. Therefore, after the change in the plot had been effected, the possession of Plot No. SK-26 could not be delivered to the Complainant.

THE main dispute between the parties is about the price of Plot No. III-M/45-A. GDA is asking price of the alternative plot measuring 500 sq. mts. at the rate prevailing in 1987 while the Complainant''s contention is that as possession of Plot No. SK-26 could not be handed over to her and as the change in the plot was effected not on her request therefore the GDA is not entitled to charge the price of the Plot No. III-M/ 45-A at the rates prevailing in 1987 as the whole land had been acquired for those colonies in 1980-81. It is further the contention of the Complainant that the price of area measuring 39332 sq. mts. out of 500 sq. mts. be calculated at the price at which Plot No. SK -26 was allotted to her and at the most for the remaining area of Plot No. III-M/45-A GDA could demand the enhanced price. According to her calculations the price calculated by the above formula comes to Rs. 1,05,921.94. As she has already deposited Rs. 25,298.34 upto 12th October, 1981 and Rs. 21,000/- on 21st March, 1987 she was liable to pay only the remaining amount Rs. 59,623.60 i.e. Rs. 59,624/- in round figures and she had remitted that amount by means of draft and pay order as mentioned in the complaint. However, GDA is insisting for the price of Plot No. III-M/45-A at the rates prevalent in 1987 and she was asked to pay Rs. 1,78

00/- VIDE letter dated the 5th April, 1988 over and above the amount already deposited by her. The Complainant had a long correspondence with the GDA and had also made representations to the Department concerned. However, both sides are sticking to their respective stands. On 30th January, 1995 arguments were heard for sometime. Learned Counsel for the GDA prayed for grant of short time to obtain instructions from the GDA as to what course of action GDA was willing to adopt on the observations that had fallen from the Bench during the course of the hearing. The case again came up for hearing on 20th March, 1995 on which dated the learned Counsel for the GDA stated that a plot measuring 350 sq. mts in Govind Puram locality can be allotted to the Complainant at the price prevailing at the time the Plot No. SK-26 was allotted to her and some compensation as deemed fit by the Commission be granted to her. However, on that day nobody had appeared for the Complainant and therefore final shape could not be given to this proposal.

THE question that arises is if the Complainant does not accept the settlement offered by the GDA then to what relief the Complainant is entitled ? There is no dispute on the point that when statutory bodies like Housing and Development Boards or private developers and promoters are engaged in serving the public in the matter of providing houses/ plots by acquisition of land, development of sites, construction of houses thereon and allotment of plots/houses they are clearly engaged in rendering service for consideration to the public and therefore those who are allotted plots/houses by the Board or private builders or promoters are clearly consumers falling within the definition of Section 2(l)(d)(ii) of the Consumer Protection Act, 1986. Reference can be made to the decision of this Commission in IIP. Avas Evatn Vikas Parishad (Housing and Development Board) v. Garitna Shukla and Ors. 1(1991) CPJ1. That decision has been upheld by the Supreme Court in Lucknow Development Authority v. MJC. Gupta, Civil Appeal No. 6237 of 1990. Alongwith that appeal, some other appeals were also decided.

IN the present case GDA is clearly deficient in rendering of service. The Complainant No. 1 had deposited full price in lump sum for Plot No. SK-26 upto 12th October, 1981. Possession of plot was offered to her in 1986. However, inspite of several letters the possession of the plot was not delivered to her. In fact, GDA was not in a position to deliver the possession of that plot to her as a big water tank of Irrigation Department was situated on that plot. When the possession could not be delivered, GDA allotted another plot in Nehru Nagar, the area of which was 500 sq. metres on 10th March, 1987. The demand of the GDA to pay the price of the alternative plot price at the rates prevailing in 1987 was definitely unreasonable as the Complainant No. 1 was not at fault. The Complainant put a counter proposal to the effect that for an area of 393.32 sq. mts. out of the newly allotted plot be calculated at the price at which plot No. SK-26 was allotted to her. About the remaining area she was prepared to pay the price prevailing in 1987. The proposal made by the Complainant was very reasonable. Equity also demands that the proposal put forward by the Complainant should have been accepted by the GDA. However, the GDA demanded price for the newly allotted plot at the rates prevailing in 1987. However, we cannot determine the price to which GDA might be entitled to as the question of pricing of a plot/ flat by a Housing Board or developer is not consumer dispute. It was so held by this Commission in Gujarat Housing Board v. Datania Amritlal Fulchand and Ors. (First Appeal No. 241/91 decided on 7.10.1993). The Complainant can only be granted compensation for the deficient of service rendered by the GDA. In the light of the above discussion, we direct that GDA will allot one plot measuring 350 sq. mts. in Govind Puram to Complainant No.l atthepriceatwhichPlotNo.SK-26inShastrinagar was allotted and also pay to her Rs. 20,000/- as compensation. However, if the Complainant is not prepared to accept the above proposal extended by the GDA, she will be entitled to the refund of the amount deposited by her with interest at the rate of 18% per annum from the respective dates of deposits. It is common knowledge that the price of plots and houses is rising day by day. The Complainant cannot get a plot at the rates at which she was allotted a plot in 1981. We allow Rs. 1 lakh as compensation to Complainant No. 1. This amount of compensation will bear interest at the rate of 18% per annum from the date of this order. The Complainant No. 1 will give her option to GDA within one month of the receipt of the copy of this order. GDA is given two months'' time to comply with this order after the receipt of the option of Complainant No. 1. Complainant No. 1 will also be entitled to the costs of the present proceedings which we assess at Rs. 5,000/-.