M.L.SHARMA vs Chief Administrator, HUDA

WHETHER this State Commission is empowered to issue directions to the Haryana Urban Development Authority for the allotment of a plot to the complainant-consumer by way of relief is the significant question in this case.

THE facts deserve notice with relative brevity in this uncontested complaint, which is being decided ex parte. Mr. M.L. Sharma, complainant herein, is an ex-serviceman, who, apparently having completed his tenure with the defence forces, was now seeking a roof over the head of his family members. Way-back in the year 1986 the Chief Administrator, Haryana Urban Development Authority (thereafter referred to as ''HUDA'') issued a notification inviting applications for allotment of residential plots in Sectors 23, 23-A at Gurgaon. THE Canara Bank at Panchkula was the duly authorised branch so notified for receiving the applications for the allotment of plots aforesaid. THE complainant in full compliance with the procedure laid out in the notification, purchased the prescribed application form No. 63520 and applied for an 8 Marla plot, along with the earnest money amounting to Rs. 4,048/- by a bank draft No. 834098 dated the 20th August, 1986, and submitted the complete application as such to the Canara Bank vide receipt No. 3075 dated 22nd August, 1986 vide Annexure P-I. THE draw of lots for the said applications was fixed for 5th November, 1986, and when the complainant drew a blank therein, he made inquiries with regard thereto. To his great distress and surprise he came to know that his very application had not been included in the draw of lots of all, for reasons best known to the Estate Officer, Gurgaon. THEreafter, the complainant had a protracted travail of representations to various authorities to seek redress for the injustice meted out to him and the loss of opportunity of securing a shelter for himself and his family in an urban area. In accordance with the terms and conditions for the allotment of plots, the complainant first represented his case to the Chief Administrator, HUDA, in December, 1986, who, in turn, sent the representation to the Estate Officer, Gurgaon, vide office Endorsement dated 14th January, 1987, seeking a report in the matter along with his comments. No adequate response having been made, the complainant was compelled to make a fresh representation to the Chief Administrator, HUDA, in April 1987, which met the same fate of being sent to the Estate Officer, Gurgaon, for taking immediate necessary action. The latter vide a communication dated 14th May, 1987 required the complainant to produce the bank receipt vide which application along with the earnest money was deposited in the Bank, which was duly complied with. Despite waiting for a considerable time, there was again no response or reply from the said authority thereafter. Yet again on the 15th April, 1990, the complainant vide a written representation requested the Estate Officer, Gurgaon, to look into his genuine claim and annexed all the relevant documents therewith. However, even this failed to elicit any reply from the said authority. Aggrieved thereby, an appeal before the Chief Administrator, HUDA , for seeking justice in the matter, was preferred vide Annexure P2.

The Chief Administrator, HUDA, vide his office Memo. No. A-5-90/19580 dated 1 lth October, 1990, at long last informed the complainant that his name was not included in the draw of lots because the Estate Officer, Gurgaon, had not received his application from the Canara Bank. Therein he was advised to inquire from the said Bank about the position of his application. In response to this communication, the petitioner filed his reply on the 12th November, 1990, a copy whereof is Annexure P3. Therein amongst other things, it was highlighted that the Canara Bank, Panchkula, was the agent and authorised Bank to receive the applications for the allotment of plots, and the complainant had completed all the requisite formalities with regard to the same. It was highhghted that the act of the agent is that of the principal in the eye of law, and any default on the part of the Bank could not possibly be laid at the door of the complainant, and indeed HUDA must own its own responsibility for any negligence or inaction by the authorised Bank. The complainant claimed that he should be compensated by alloting a plot of eight Marias in any of the sectors at Gurgaon. But all his representations fell on deaf ears.

IT is now the complainant''s case that in view of the rising prices, the market price of an eight Marla plot is not less than two lacs of rupees, and having failed to get justice from the opposite parties, the complainant sought redress before this Commission on the grounds elaborated in the complaint, in which particular reliance was placed on a judgment of their Lordships of the Supreme Court (Annexure P4) directing the HUDA to allot a plot to the petitioner therein. Notice of the complaint was issued to the opposite parties, who were duly served, but no appearance was put in on their behalf. Before proceeding ex parte the Commission thought it apt to issue notices also to Mr. Ashutosh Mohunta and Mr. N.K. Kapur, Advocates, who were stated at the bar to be the standing Counsel of the HUDA, on the 26th February, 1991. At the next date of hearing, though Mr. Ashutosh Mohunta was duly served, no appearance was put in on behalf of the opposite parties on the fixed day of hearing as well. We, therefore, found no option, but to proceed against the opposite parties ex parte.

IN support of his case a detailed affidavit dated 5th April, 1991, of Mr. M.L. Sharma complainant, in accord with the complaint, was placed on the record. Along therewith, Annexures A-1 to A-6, being the copies of the relevant documents in the case were duly annexed. From the unrebutted testimony of the affidavit and the documents placed on the record, it is manifest that the complainant being an ex-serviceman was eligible to be considered for the allotment of plots in Sectors 23 and 23-A in Gurgaon in the reserved defence category. It is not in dispute that in the very notification, and advertisement inviting applications, the Canara Bank, Panchkula, was one of the authorised agents for receiving the applications alongwith the requisite documents. From the averments in the affidavit, and in particular Annexure A-1, it is proved on the record that the complainant'' s application No. 63520, alongwith the requisite earnest money vide Bank Draft No. 834098 dated 20th August, 1986 and the certificate of eligibility issued by the Rajya Sainik Board, Haryana, as also the other requisite documents, was duly submitted to the Canara Bank Branch at Panchkula, and received by them vide printed bank receipt No. 3075 dated 22nd August, 1986. Patently, there was no defect in the said application, which was in full and complete compliance of the terms and conditions in the notification issued by the opposite parties themselves. It would appear that due to the patent negligence of the Canara Bank, the application of the complainant was not forwarded to the concerned authorities, right upto the time for the draw of lots, which was well nigh two or three months later. This fact indeed stands admitted in Annexure A-5, being a communication from the Chief Administrator, HUDA, to the complainant. The relevant part deserves notice in extenso : - "Your application alongwith credit of the earnest money amount said to have been deposited with Canara Bank, Panchkula was not received by the Estate Office, HUDA, Gurgaon on account of which your name was not considered for allotment of a 8 marla plot in Sector 23 & 23A, Gurgaon. You are therefore, advised to enquire from the Bank authorities of the Canara Bank Panchkula about the position of your application along with amount of earnest money of Rs. 4,048/-."

It necessarily follows from the above that owing to the patent default of the agent of the opposite party, namely, the Canara Bank the complainant without any fault of his own was deprived of the valuable right of being considered for the allotment of a plot in the reserved category of defence personnel. The attempt to shift the blame to the Canara Bank on the part of the opposite parties vide their communication Annexure A-5, is indeed futile. Having themselves held out the said Canara Bank as the authorised agent to receive applications, they cannot now pass on the blame to them to escape the liability of the default and negligence of their own agent. It is well settled that in the eye of law the act of the agent is the act of the principal himself. Going by the said dictum, it would be clear that the opposite party was patently negligent in not putting the complainant''s valid and completed application in the draw of lots, and thus, depriving him altogether from consideration for allotment of a plot. Thereafter it is more than well established by the affidavit and the documents that the complainant was compelled to knock at the door of the authorities for well nigh two/three years without any semblance of redress. From these established facts on the record, the complainant is clearly entitled to relief by this Commission. By now it is well settled that the type of service which the HUDA renders to the public is one well within the meaning of its definition as laid out in the Consumer Protection Act, 1986. It is unnecessary to elaborate this on principle because it is settled by the precedent of the National Commission in U.P. Avas Evam Vikas Parkhad (Housing & Development Board) v. Garima Shukla & Others, I (1991) CPJ 1 (NC), wherein it has been authoritatively laid down as under : - "....The mere fact that Housing and Development Board is a statutory body does not mean that it is outside the purview of the Consumer Protection Act. The Housing and Development Board is engaged in serving the public in the matter of providing housing by acquisition of land, development of sites, construction of houses thereon and allotment of plots/houses to the public. The Board is clearly engaged in rendering service for consideration to the public and therefore those who are allotted plots/houses from the Board are clearly consumers falling within the definition in Section 2(1)(d)(ii) of the Act. Again under Section 2(1)(o) of the Act the definition of the term "service" is very comprehensive : it mean "service of any description" including banking, financing, insurance, transport, processing, supply of electrical or other energy, entertainment etc. This leaves no room for doubt that the type of service which the Board renders to the public for a consideration is clearly covered by Section 2(1)(o)."

Following the above statement of the law, coupled with the facts established on the record, it would be clear that the service rendered by the opposite party in this case suffered from a grave deficiency, which indeed bordered on patent negligence. The complainant is, thus, entitled to relief under Section 14 of the Consumer Protection Act

THE learned Counsel for the complainant had primarily pressed that a direction be issued to the opposite party to allot an eight Marla residential plot to him at Gurgaon on the rates chargeable in 1986 by the HUDA from the applicants similarly placed. It was highlighted that over the years the market prices thereof have escalated to the range of nearly two lacks of rupees. However, the complainant had not in terms in his complaint sought any monetary compensation, but directly prayed for the issuance of an appropriate direction for allotment of an eight Marla plot to him. As has been noticed at the very outset, we were initially somewhat sceptical about the nature of the relief claimed on behalf of the complainant. His learned Counsel was given pointed opportunity to address arguments on this point and in this context he has primarily placed reliance on the U.P. Avas Evam Vikas Parishad''s case (supra).

A close and incisive perusal of the judgment in U.P. Avas Evam Vikas Parishad s case (supra) would indicate that the learned Counsel for the complainant is indeed on firm ground. Therein the State Commission of the UP. had expressly issued directions to the Housing & Development Board for the allotment or providing an alternative plot in the original colony of Vikas Nagar itself within a period of three months, with the further direction that the same should be 330 sq.m. in the area and it would be of the choice of the complainant therein. This direction was strenuously challenged in appeal before the National Commission by the Housing and Development Board. The National Commission, however, upheld the said direction with a minor modification in the following terms : - "We, therefore, uphold the judgment of the State Commission regarding reliefs granted to the respondent except to the extent of making a slight modification by our directon that in case all the plots in the original area have been allotted to others, a plot in an adjacent area, according to the choice of the respondent, may be allotted to him"

It is somewhat plain from the above that the question posed at the outset stands covered by precedent virtually on all fours. It is, therefore, unnecessary and would indeed be wasteful to examine it on principle. The answer to the issue formulated has, therefore, to be rendered in the affirmative. In the wake of the above, we direct the opposite parties to allot an eight Marla residential plot to the complainant at Gurgaon either in Sector 23 or Sector 23-A (Phase- II), or in an adjacent area, at the rates charges in 1986 by the HUDA from the applicants similarly placed, subject of course to the complainant''s completing all the necessary formalities therefor. The complaint is allowed in the terms aforesaid. Pronounced in open Court. Complaint allowed.