PHOOL CHAND SHARMA vs SAMPATTIPRABANDH ADHIKARI, U.P. AVAS VIKAS PARISHAD

THIS is an appeal against the judgment and order dated 13.7.1998 passed by learned District Forum, Bulandshahr in Complaint Case No. 41/1998. The facts of the case stated in brief are that the complainant, appellant in the appeal, in July, 1990 applied in Scheme No. 2 for a residential plot to U.P. Avas Evum Vikas Parishad, Bulandshahr. He also deposited a sum of Rs. 10,000/-. A plot No. 3/1 measuring 360 sq. mts. was allotted to him and the same was communicated to the complainant vide letter dated 3.1.1991. The cost of the plot was fixed at Rs. 530/- per sq. mt. When the proceedings of possession were initiated, it was found that some unauthorised persons had taken possession of that plot and hence the opposite party could not deliver that plot to the complainant. The complainant issued a reminder on 18.3.1993. By letter dated 20.7.1993 the complainant was informed by U.P. Avas Vikas Parishad that as they are unable to deliver possession of this plot, therefore, a letter has to be addressed to Deputy Housing Commissioner for allotment of land. On this the complainant sent a letter dated 31.3.1993 for allotment of another plot in the same scheme giving out the facts leading to the application. He also requested that the plot should be allotted to him of the same size and at the same rate. On this application, an order was passed by the Dy. Housing Commissioner that as the possession could not be delivered of the plot originally allotted to the complainant, therefore, the complainant should be allotted one plot of 360 sq. mts. in the same scheme No. 1 at the same price of Rs. 530/- per sq. mt. In pursuance of this order the opposite party allotted plot No. 532 measuring 114.75 sq. mts. @ Rs. 835/-.

THIS letter was received under protest by the complainant as the area of this plot was only 114.75 sq. mts. and the rate was charged at Rs. 835/- per sq. mt. On 10.6.1994 a letter was written by the complainant that the area of the plot is very less and the price has been wrongly assessed at Rs. 835/- per sq. mt. THIS action of the U.P. Avas Vikas Parishad, according to the complainant, is not in accordance with the orders of Dy. Housing Commissioner and is illegal. The complainant has also alleged that the plots of the same size is lying vacant on the main road in the same scheme No. 1, where this plot was situated. It was also alleged that the complainant had deposited a sum of Rs. 1,35,776.00 to the U.P. Avas Vikas Parishad but another plot in the same area at the same rate has not been provided. The opposite party, U.P. Avas Vikas Parishad, in the written version has partly admitted the claim of the complainant and has stated that the plot has been allotted at the current market rate of Rs. 835 /- per sq. mt. which is according to rules. This plot has been allotted on the instructions of the Headquarters. It is further alleged that as far as the price of the plot is concerned, the complainant is not a consumer of the opposite party.

It has further been alleged that the complainant had filed a civil suit before the competent Court, No. 130/1994 in the Court of Munsif 1st, Bulandshahr, which has already been decided and hence this Forum has no jurisdiction to decide the matter.

THE learned District Forum, after considering the matter on record, came to the conclusion that the suit which was filed by the complainant was decided on 30.5.1994, copy of which goes to show that the Civil Court had directed the opposite party to comply with the order dated 20.5.1994 passed by Dy. Housing Commissioner. On this finding the learned District Forum held that the suit cannot be tried by the Forum and hence complaint has been dismissed. Aggrieved against the order of the learned District Forum, the complainant has come in appeal and has challenged the correctness of the order passed by the District Forum.

WE have heard learned Counsel for the parties and perused the evidence on record. It is an undisputed fact that plot No. 3/1 measuring 360 sq. mts. was allotted to the complainant by the U.P. Avas Vikas Parishad in the year 1990 at the rate of Rs. 530/- per sq. mt. It is also admitted that on account of unauthorised possession by some persons the possession of the plot could not be delivered. It is also admitted that the complainant had deposited a sum of Rs. 1,35,776/- towards the price of the plot initially allotted to him. Now the dispute is with respect to the allotment of plot No. 532, the area of which was reduced to 114.75 sq. mts. and the price per sq. mt. has been charged at the rate of Rs. 835/- thus increasing the cost of the land also. According to learned Counsel for U.P. Avas Vikas Parishad, the plot has been allotted at the current price which was prevalent at the time when the plot was allotted. Now the real dispute between the parties is about the area which should be allotted to the complainant and the price at which it should be allotted. Before we take up this issue, it will be better to decide the question of jurisdiction which has been raised by U.P. Avas Vikas Parishad. According to learned Counsel for U.P. Avas Vikas Parishad, the complainant had filed a Suit No. 130/1994, Phool Chand Sharma v. U.P. Avas Evum Vikas Parishad, at Bulandshahr. A copy of the plaint as well as copy of the order has been has been filed by the complainant before us which was also filed before the learned District Forum. A perusal of the relief sought by the complainant in the previous suit is that a permanent injunction be granted against Avas Vikas for not auctioning plot No. 532 in the auction proceedings to be held on 21.3.1994. This was the only main relief and the other was about the cost etc. On this point the learned Munsif passed an order that the order dated 20.5.1994 passed by the Deputy Housing Commissioner should be complied with by the Avas Vikas Parishad. There was no question raised in that litigation about the deficiency of service and the same was not adjudicated upon by the learned Munsif. The complainant had only prayed for an injunction that plot No. 532 be not included in the auction proceedings as had been ordered by the Deputy Housing Commissioner. Thus we find that the cause of action of that suit was entirely different from the cause of action in the present complaint. The matters and the issue were entirely different and thus filing of that suit by the complainant does not debar the complainant to institute the present complaint. The findings of learned District Forum on this point is not based on facts and this issue has been cursorily dealt with by the learned District Forum without adverting to the facts and issue.

NOW we revert back to the main controversy about the size of the plot and the price. It is an admitted fact that the application was moved in the year 1990 and when possession of the plot No. 3/1 could not be delivered due to unauthorised possession of the plot, Housing Board allotted plot No. 532 to the complainant. In order passed by the Deputy Housing Commissioner, it has been specifically mentioned that the plot should be allotted at the rate of Rs. 530/- per sq. mt. Copy of the order passed by Deputy Housing Commissioner on 20.5.1994 is on record which is very clear that the plot shall be allotted at the rate of Rs. 530/- per sq. mt. It was also mentioned that if the land to be allotted exceeds the original area of plot No. 3/1, then the excess area shall be charged at the current rate. A copy of this order was addressed to the complainant also. Learned Counsel for the Avas Vikas Parishad has argued that this order was modified by order dated 18.6.1994, in which it was stated that the land of plot No. 532 shall be charged at the rate of Rs. 835/- per sq. mt. For modification of order dated 20.5.1994 and before passing order dated 18.6.1994 no opportunity was given to the complainant for hearing as the second order dated 18.6.1994 was passed against the interest of the complainant. This was in violation of the principles of natural justice. If an order was to be reviewed then the authority should have atleast issued a notice to the complainant against whose interest the order is to be reviewed. Until this is done, the order will not have any force and can be safely ignored as a waste paper. NOW the letter of 20.5.1994 remains in which it has been specifically stated by the Deputy Housing Commissioner that same rates shall be charged as were charged for plot No. 3/1 viz. at the rate of Rs. 530/- per sq. mt. When the plot has already been allotted in the year 1990, but due to fault of Housing Board its possession could not be delivered and a fresh plot had to be allotted to the complainant, then the complainant cannot be penalised for the fault of the respondents. There is a deficiency in service on behalf of the Housing Board in not making available initially plot No. 3/1 to the complainant. If the possession of that plot could not be got delivered to the complainant, then a fresh plot which is allotted in lieu of the old allotment on the same terms and conditions which were incorporated in the previous allotment order should apply for the newly allotted plot. This was the direction given by the Deputy Housing Commissioner in his letter dated 20.5.1994. In the same way the area of plot which has now been reduced from 360 sq. ft. to 114.75 sq. mts. cannot also be permitted because the plot of same area is to be allotted to the complainant by the Housing Board. The complainant has alleged that plots of this size are still available with the Housing Board in scheme No. 1, therefore, there should not have been any difficulty for alloting a compact plot having an area of 360 sq. ft. Thus we find that the complainant succeeds on both the counts, as regards the area of the plot and the price at which the plot is to be allotted to the complainant.

LEARNED Counsel for the Avas Vikas has argued that the complaint is barred by limitation. This question was not raised before the District Forum; hence it cannot be allowed to be raised for the first time during appeal. Even this question has not been raised in grounds of appeal. It may, however, be observed that if the plot of 360 sq. mts. is still available in the same scheme at road side, and which is consented to by the complainant, then the same may be allotted to the complainant by Avas Vikas Parishad at the rate of Rs. 530/- per sq. mt. failing which another plot or part of plot adjacent to plot No. 532 if available be allotted to the complainant besides plot No. 532 to make up the entire area of 360 sq. mts. It has also been observed above that the rate to be charged of the plot will be Rs. 530/- per sq. mt. for the entire area of 360 sq. mts.

Learned Counsel for the appellant has argued that the interest should be awarded to the complainant from the date of the deposit of the amount till the date of possession of the plot is delivered to him. This contention is correct because the complainant has been denied with the fruits of the plot which was allotted to him and he has also been deprived of making construction over the plot in question at a lesser rate than the prevalent at present. Thus the complainant is entitled to interest at the rate of 18% per annum in the form of loss on the amount deposited by him from the respective dates of deposit till the delivery of possession of the plot.

THE complainant has claimed damages also to the tune of Rs. 50,000/-. It is also alleged and argued by complainant/appellant that the previous plot No. 3/1 allotted to him was not got vacated from the trespassers by the Development Authority. It has also been argued that no steps were taken to get this plot vacated and that plot has been allotted to the illegal occupants. This shows that the Development Authority did not take any steps to recover possession of Plot No. 3/1 and it failed in its duty to see that allotted plot is got vacated and possession given to the complainant. THE appellant is thus guilty of deficiency in service and must compensate the complainant for the mental torture and harassment caused to him during this period. He has also been put to damages on account of escalation of cost in construction of house as it is commonly known that the prices have increased of all materials used in building activities since 1992 to this period (two years period left after allotment of original plot in 1990). Thus the complainant is entitled to claim damages of Rs. 25,000/-. ORDER The appeal is allowed and the judgment and order of District Forum is set aside. The opposite party U.P. Avas Vikas Parishad is directed to allot another plot of 360 sq. mts. area in the same scheme No. 1 at the old rate of Rs. 530/- per sq. mt. along the road side. If in any case it is not possible to allot plot on road side then another plot of same area and at same price be allotted in the same scheme No. 1 as consented to by complainant. In case no plot of 360 sq. mts. is available then rest areas of 245.25 sq. mts. be allotted from plot adjacent to the plot No. 532, if available, otherwise another plot of 245.25 sq. mts. be allotted at the same old price of Rs. 530/- per sq. mt. in the same scheme No. 1 as observed above. The complainant is also entitled to interest @ 18% per annum in the form of loss on the amounts deposited by him from respective date of deposit till delivery of possession of plot.

THE complainant/appellant shall get an amount of Rs. 25,000/- as compensation and Rs. 3,000/- as cost of both the places. Let this order be complied with within a period of two months from today. Let copy of this order be made available as per rules. Appeal allowed with costs.