MEERUT DEVELOPMENT AUTHORITY vs ASHA RANI

THIS is an appeal filed by the Meerut Development Authority against the order of the District Consumer Forum, Meerut dated 13.7.1998 in Complaint Case No. 344 /1997. Briefly stated, the facts of the case are as follows :

THE complainant Smt. Asha Rani, in response to the Meerut Development Authority''s advertisement, got herself registered for a residential plot and deposited Rs. 15,000/- on 9.12.1989. THE residential plot in question was to be allotted in Shatabdi Nagar residential project. On 20.2.1991 allotment order and an instalment plan was received by her from Meerut Development Authority but the Authority vide their letter dated 17.8.1993 enhanced the cost of the property and revised the instalments. THE complainant was allotted plot No.A/39 in Sector VII of Shatabdi Nagar. THE complainant, inspite of this, deposited all the instalments and the final instalment was paid on 27.6.1997. When the complainant asked for the possession of the plot, no reply was given by the Authority. THErefore, the complainant made a written request and contacted the Vice Chairman of the Authority but he had informed that it was not possible to allot her plot No. A/39 because the development work in the area was not complete and if she wanted an alternative plot, she could be given one in a developed area in some other sector. THE complainant was not willing to take another plot except the one, A39, already allotted to her. THE complainant thereafter asked for the entire money deposited by her, i.e. Rs. 1,72,000/- with an interest of 18% thereon. She also asked for Rs. 3,50,000/- as compensation and Rs. 5,000/- as cost of proceedings from the opposite party. The opposite parties, Meerut Development Authority, came with the stand that the development work on the project in question was likely to be completed in 1992, but because of certain legal and practical difficulties; development work could not be completed and it was not possible to transfer possession of the plot allotted. It was admitted by Meerut Development Authority that the complainant did not give consent to choose alternative plot in some other area. It was also contended by Meerut Development Authority that the allotment was provisional and the Vice Chairman of the Authority had full right to make changes. The money deposited by the complainant could be refunded to her only as per rules of the Authority.

The learned District Forum on 13.7.1998 ordered that complainant be given the entire money deposited by her alongwith 15% interest within a period of one month. The complainant was also awarded Rs. 500/- as cost of the proceedings.

AGAINST this order, the Meerut Development Authority has come in this appeal. The Authority has admitted that the complainant had paid all the instalments towards allotted plot of A/39, but the same could not be handed over to her because the area could not be developed. It is also admitted in the appeal that another plot in a well developed area was offered to her but the complainant did not agree to take it. The appellant''s case is that the District Consumer Forum, Meerut has erred in awarding interest on the registration amount and also interest on other deposits. The appellants have also stated that delay, if any, in the development work was beyond the control of the appellant who could not be held responsible for the same. It is also stated that the complaint was time barred and the appellant has full authority to change the sites of the allotted plot.

LEARNED Counsel for the appellant Mr. V.S. Bisaria and learned Counsel for the respondent Mr. M.H. Khan have been heard in the case. During the arguments put forward by the two parties, it was stated on behalf of the learned Counsel for the appellant that the District Consumer Forum, Meerut acted beyond jurisdiction by allowing the complaint. It was stated that the District Forum was not competent to hear the complaint as the relief demanded by the complainant was Rs. 5,22,500/-. In this connection it will be perthent to note that at no time or at no stage the question of pecuniary jurisdiction was raised by the Meerut Development Authority either in the District Consumer Forum or in the appeal. It was only at the stage of argument that this point is raised. In this connection, the learned Counsel for the appellant has drawn our attention to Hon''ble National Commission''s finding in the case of Aroop Mukherjee v. Switzer Instruments Limited, reported in III (1996) CPJ, page 18 (NC), in which i t has been held that the question of law can be argued even if the ground is not taken in the ''grounds of appeal''. We have gone through the judgment referred to in this case and we find that entirely different circumstances exist in the instant appeal where the entire payment was made and the possession was not given. Moreover, it would be interesting to note that the respondent in this case have deposited an amount of Rs. 1,72,000/- from time to time and when possession was denied to her, she asked for the refund of the same alongwith 18% interest. The rest amount of Rs. 3,50,000 /- and Rs. 5,000 /- was asked for in terms of compensation and cost of proceedings respectively. The District Forum in their order dated 13.7.1998ordered the Authority to refund Rs. 1,72,000/- alongwith 15% interest, in addition to Rs. 500/-as cost of proceedings. A perusal of records will also go to show that in execution of the above order, an attachment order was also issued by the District Forum on 4.2.1999, of the amount aggregating to Rs. 3,64,929/-. We are of the opinion that the objection regarding pecuniary jurisdiction was not presented at all before the District Forum. The District Forum in its order does not even remotely indicate that any grievance was made in this regard. Also no such plea has been raised in the appeal. It is elementary that objections of the pecuniary aspect on the case should have been taken up at the District Forum. Here a reference is made of the case, Haryana State Electricity Board v. Pirthi Singh, II (1993) CPJ, page 715, wherein it has been viewed that it is not open to the parties to sit on the fence and when the matter turns against them on merits, they then revert to such technical pleas. We are, therefore, not inclined to entertain such an objection at the appellate stage.

ANOTHER argument which has been put forward by the learned Counsel for the appellant is that the appellant cannot be held responsible for deficiency of service because an alternative plot was offered to the respondent. He has referred to Rule 22 of the brochure published by the Meerut Development Authority which states that the site, size and price of the proposed house under this scheme is provisional and the Vice Chairman has a right to make any alteration. More so, when the allottee in the application form gives an undertaking that the rules of the Authority would be binding upon him or her.

OUR attention has been drawn to ruling of Hon''ble Supreme Court in the case of GDA v. Sanchar Vihar, II (1996) CPJ, page 15 (SC). The circumstances obtaining in that case are not in consonance with the case we are dealing with. In this case the entire amount alongwith interest has been deposited by the allottee and she has been waiting for quite a number of years for delivery of the possession which was denied to her. It appears that inspite of the fact that Meerut Development Authority was not sure of the scheme coming up at the right time and even at the approximate time and they floated the scheme. The Development Authority was unable to foresee the subsequent development which obstructs the development of the area for which the project has already been floated and funds moped up without caring for the consumers who have been waiting for physical possession and were later on denied the same, inspite of the fact that the entire money has been deposited alongwith interest. The Development Authority expects the allottees or the consumers to deposit required money in time and for default charges interest of more than 18% and in turn if the consumer is denied possession of the plot allotted, reserves the right that the refund will be made of the amount deposited with the deduction of 20%. This is highly discriminatory and is completely devoid of the principles of equity and justice. It would have been a different matter in case the respondent would have refused to take possession of the developed plot. In this case the entire money alongwith interest was got deposited by the Authority and the possession was not given because development could not take place and she was required to choose some other plot in a different area. It has also been argued before us by the learned Counsel for the appellant that the complaint was time barred. In our opinion, cause of action continued till such time the respondent did not get back the money deposited by her for which she has been writing to the authorities time and again. The records placed on file go to prove that fact.

In view of the above discussions, we come to the conclusion that the appeal has no force and is liable to be dismissed. The order dated 13.7.1998 in Complaint Case No. 344/1997 passed by the learned District Forum, Meerut is quite justified and does not need any interference. ORDER The appeal is dismissed and the order of the learned District Forum dated 13.7.1998 in Complaint Case No. 344/1997 is upheld. Let copy of this order be made available to the parties as per rules. Appeal dismissed.