R K INDUSTRIES vs NEW OKHLA INDUSTRIAL DEVELOPMENT AUTHORITY

[1] This consumer complaint has been filed by M/s R.K. Industries, situated at C-113, Sector 10, NOIDA, dealing in the business of thermosetting and thermoplastic polymers, through its proprietor Rajeev Kapoor, saying that the complainant applied for a residential plot of 450 sq. mtr. vide form No. 003766 on 30.01.2002 in the scheme 2001(1) of the opposite party (OP) New Okhla Industrial Development Authority (NOIDA) under reserved category for industrial entrepreneurs. Vide letter dated 30.03.2002 from the OP NOIDA, a plot of 450 q. mtr. was allotted to the complainant and vide another letter dated 31.05.2003, specific location of plot as B-104, sector 46 NOIDA, was also given. The total premium of the plot inclusive of locational charges was quoted as Rs. 3,465/- per sq. mtr. totalling Rs. 15,59,250/-. The complainant deposited about 90% of the said amount, i.e., Rs. 13,99,294.50ps. and the balance was to be paid at the time of taking over the physical possession of the plot. It is alleged in the complaint that despite sending many letters to the OP, the possession of the plot was not given to him. Vide letter dated 3.07.2006, the OP expressed their inability to allot the said plot due to unavoidable reasons and sought concurrence of the complainant for alternative allotment, or to give option to refund the money deposited with 6% interest. It was also stated that if the option was not received within 15 days, it shall be presumed that the complainant was not willing to get alternative allotment and the money shall be refunded. The complainant sent a letter dated 14.07.2006 to the OP NOIDA, protesting against non-allotment for such a long time and asking the OP to offer him a choice in choosing a plot of same area from the plots which were in the possession of NOIDA. It is made out from record that the OP did not consider his case for the allotment of alternative plot in the draw of plots held and stated vide their letter dated 27.10.2006 that they were in the process of sending refund. It has been stated in the complaint that a refund cheque No. 610139 dated 29.11.2006 for a sum of Rs. 14,59,753/- was received by the complainant under clause 25(iii) of brochure. The complainant has claimed that since he had deposited the necessary amount for allotment of plot and also deposited the lease rent as demanded by the OP, he was entitled to get the plot B-104, Sector 46, NOIDA only. The OP had, therefore, acted in an negligent and irresponsible manner and hence, they should be directed to give physical possession of the same allotted plot or to give possession of a plot similar in measurement and location, geographically and topographically. The complainant also prayed that 24% interest on the amount deposited by the complainant should be given to him from the date of deposit and further, a sum of Rs. 30 lakh should be given for professional/business loss and a sum of Rs. 1 crore as compensation for mental agony and breach of trust, besides the cost of litigation.

[2] The complaint was resisted by the OP NOIDA by filing a written statement, saying that an industrial plot No. C-113, Sector 10 NOIDA had earlier been allotted to the complainant. A scheme for allotment of residential plots in the year 2001 was launched under which 17.5% of the available plots in the scheme were to be allotted to the entrepreneurs. The complainant was one of the successful applicants to whom reservation letter dated 30.03.2002 was issued. The OP has further stated that they never called upon the complainant to deposit one-time lease rent. Further, the development of certain portion of sector 46, was held-up for the reason that there had been encroachment over the said area. That''s why the letter dated 03.07.2006 was sent to the complainant, expressing inability to handover the possession. In all fairness, two alternatives were given to the complainant the first was the refund of the entire money alongwith 6% interest as per the conditions stated in the brochure of the scheme and the second option was to give his consent for acceptance of an alternative plot. However, the complainant did not exercise his option within the period of 15 days, as laid down in letter dated 03.07.2006. The name of the complainant could not be considered for allotment of an alternative plot because he had not exercised his option within the prescribed time. Accordingly, a refund cheque was sent to the complainant as per the terms and conditions stated in the brochure. Since the refund was accepted, the entire chapter of allotment came to an end. The complainant was, therefore, not entitled to any relief from the OP.

[3] During the pendency of the present consumer complaint, it was stated by the OP NOIDA on 13.12.2007 before this Commission that vide their letter dated 05.12.2007, the authority had informed the complainant that possession of plot No. B-104, Sector 46, NOIDA would be delivered to the complainant after completing the formalities. The Dy. General Manager of the OP stated before this Commission on that day that there was no encroachment on the said plot and the possession would be delivered to the complainant on or before 20.12.2007. However, the complainant would execute the lease deed as required under rules and would hand over the cheque lying with the complainant. It has been recorded in the next order dated 14.12.2007 that the complainant handed over un-encashed cheque No. 610139 dated 29.11.2006 for Rs. 14,59,753/- to the OP. The OP handed over two letters to the complainant, demanding a sum of Rs. 8,79,512/-. The OP was asked by this Commission to file a proper affidavit narrating how the authority arrived at a conclusion that the complainant was required to pay Rs. 8,79,512/- as on 20.12.2007. Thereafter, this case remained pending in this Commission at various stages for hearing. When the case was listed on 15.04.2015, the OP NOIDA was again directed to file the affidavit giving break-up of the amount of Rs. 8,79,512/- demanded in the letter dated 13.12.2007 from the complainant. The said affidavit has been filed by the OP only on 06.08.2015. It has been stated therein that a complete statement of account was sent to the complainant vide letter dated 13.12.2007. A perusal of the same indicates that interest @14% p.a. or 17% p.a. has been levied on the delay in paying instalments. It has also been stated in the affidavit that plot No. B-104, Sector 46, had not been allotted to anybody. As per the present position, the said plot was free from encroachment, although some portion of the adjacent plot is under encroachment.

[4] During the course of final arguments before us also, the learned counsel for the OP NOIDA stated that the plot was free from any encroachment and hence, its possession could be obtained after payment of necessary dues to the OP. The complainant himself was not coming forward to take over the possession of the plot and, therefore, there was no question of any deficiency in service on their part.

[5] The main point that arises for our consideration is whether the OP NOIDA have shown any deficiency in service towards the complainant in the matter of allotment of the plot in question. It is an admitted fact that allotment letter for a plot of 450 sq. mtr. was issued to the complainant on 30.03.2002, in which the total price of the plot was quoted as Rs. 14,85,000/-. It was stated in the said letter that after initial deposit of Rs. 1 lakh as registration money, the applicant was required to deposit a sum of Rs. 3,45,500/- as provisional allotment-cum-reservation money, leaving behind balance 70% of the amount as Rs. 10,39,500/-. The said amount was to be recovered in ten six-monthly instalments alongwith interest. In the subsequent letter dated 31.05.2003 by which specific number of the plot was allotted, it was stated that the premium of the plot was Rs. 14,85,000/- and a sum of Rs. 74,250/- was payable as locational charges making it a total of Rs. 15,59,250/-. The complainant is stated to have deposited the amount of Rs. 3,45,500/- on 26.04.2002, i.e., within a period of 30 days allowed by the authority. The complainant is further stated to have deposited a sum of Rs. 9,53,794/- on various dates, making it a total amount of Rs. 13,99,294/-. In the affidavit filed by the OP NOIDA before us on 6.08.2015, the payment of this amount of Rs. 9,53,794/- has been admitted. It has, however, been stated that due to late payment of certain instalments, a sum of Rs. 7,13,335/- was payable by the complainant as on 20.12.2007. In addition, he was required to pay locational charges of Rs. 74,250/- alongwith interest as Rs. 81,927/- making total payable amount to be Rs. 8,69,512/- (although wrongly informed to the Commission as Rs. 8,79,512/-) .

[6] A perusal of the written statement submitted by the OP authority on 30.05.2007 indicates that the OP stated in categorical terms that "despite the best efforts, the development of certain portion of sector 46 was held up for the reasons that there had been encroachment over the said area." It is made out, therefore, that the OP was not able to hand over the possession of the said plot in time due to the said encroachment. After the filing of the present consumer complaint, it was stated for the first time by Dy. General Manager of the OP on 13.12.2007 that there was no encroachment on the said plot and the possession of the same could be delivered to the complainant on or before 20.12.2007 which was, however, subject to the return of the refund cheque and executing the lease-deed. On the very next date, i.e., on 14.12.2007, the refund cheque was handed over by the complainant to the OP. It was ordered by this Commission that a proper affidavit should be filed, narrating how the authority arrived at conclusion that the complainant was required to pay Rs. 8,79,512/- The matter regarding adjudication of the amount payable by the complainant remained pending because the affidavit as per order dated 14.12.2007, was not filed earlier.

[7] It is made out from these facts that the possession of the said plot could not be handed over to the complainant as admittedly, there was encroachment on the said plot. After the OP authority stated before this Commission in December 2007 that the encroachment had been removed, the matter regarding adjudication of the amount payable remained pending. The fact remains, therefore, that the complainant has been deprived of getting possession of the plot since a long time, although he deposited 90% of the price indicated in the letter of allotment issued in 2003. It was the duty of the OP authority to ensure that before making allotment of the plot, in question, they should have properly checked about its status as on spot and made demands for deposit of the instalments only, after they were in a position to carry out development in the said area and offer possession of the plot. The net result is that the money deposited by the complainant amounting to Rs. 13.99 lakh is being utilised by the OP, since a long time, but the complainant has not been able to enjoy the benefit of the plot in question, till date. Had the possession been delivered in time, the complainant could have raised construction on the same and used the property so constructed in the manner he liked, but despite the deposit of the money, he could not get the said property. It is clear, therefore, that there has been deficiency in service on the part of the OP authority, which led to mental harassment and agony to the complainant for no fault of his own. The credentials of the complainant cannot be doubted as he had deposited about 90% of the total value of the plot and the balance was to be deposited at the time of taking over the possession.

[8] It has been held by the Hon''ble Supreme Court in the case, "Ghaziabad Development Authority Vs. Balbir Singh, 2004 5 SCC 65" as follows:- "Thus the law is that the Consumer Protection Act has a wide reach and the Commission has jurisdiction even in cases of service rendered by statutory and public authorities. Such authorities become liable to compensate for misfeasance in public office i.e. an act which is oppressive or capricious or arbitrary or negligent provided loss or injury is suffered by a citizen. The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enables a consumer to claim and empower the Commission to redress any injustice done. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him."

[9] The law laid down by the Hon''ble Supreme Court in the above case, makes it clear that if any injustice is done to the consumer due to a negligent act done by a statutory or public authority, such consumer is liable to be compensated by such authority. In the instant case, it is admitted by the OP NOIDA, which is a public authority, that due to encroachment on the said piece of land, the possession could not be delivered in time. The OP NOIDA is, therefore, liable to compensate the complainant for the said act of omission. However, looking at the overall facts and circumstances of the case, it is considered appropriate that the possession of the said plot is delivered by the OP to the complainant forthwith by charging only the balance value of the plot from him, i.e., the amount quoted in the allotment letter dated 31.05.2003 as Rs. 15,59,250/- minus the amount already paid, i.e., Rs. 13,99,000/- = Rs. 1,60,250/- without charging any interest on the said amount. The complainant shall not be liable to pay any interest either on this amount or on the delayed payments of previous instalments as well. The OP NOIDA shall also not be liable to pay any interest on the amount of Rs. 13.99 lakh, lying pending with them for a long time, neither they are being asked to give any other compensation to the complainant, if they deliver the possession of the plot to the complainant in terms of this order.

[10] Based on the discussion above, this consumer complaint is allowed with direction to the OP Authority to hand over the possession of the plot no. B-104, Sector 46, NOIDA to the complainant after charging a sum of Rs. 1,60,250/- within a period of four weeks from today. There shall be no order as to costs.