R Shanmugasundaram vs TAMIL NADU HOUSING BOARD

THIS is an appeal against the order dated 20.12.1995 passed by the District Consumer Disputes Redressal Forum, Raigarh in their Case No. 37/94 wherein the Forum has directed the appellant to deliver to the complainant within two months, possession of the 2400 sq. ft. plot already allotted to him by the appellant on "Adhikar Patra" and also to pay compensation etc., as directed.

PERUSED the memo of appeal, the records of the case and written arguments of both the parties. The grounds for appeal are stated as under : (i) In appeal memo it has been said that the Municipal Committee, Raigarh, with whom the amount is deposited should have been made a party and the Collector is not concerned with the case. (ii) In written arguments, it has been added that Kailo Vihar Government Servant''s House -Building Co -operative Society, with whom Rs. 1,88,050/ - are deposited by the Members should also have been made a party. (iii) In the default of making the Society and the Municipal Committee party to the proceedings, the proceedings should have been dismissed. (iv) The complaint should be treated as not maintainable as has been decided by the District Forum in similar Complaint Case No. 15/95 filed by one Kalachand. (v) The State Government has granted sanction for allotment of land to ''Kailo Vihar'' Society vide Order No. 6 -8 /7/ Nagar/94dated 26.12.1995/3.2.1996. (vi) A dispute relating to delivery of possession of a plot is not triable by a Consumer Disputes Redressal Forum. (vii) Since the scheme was on "No loss no profit" basis, the complainant is not a consumer under Section 2(d) of the Consumer Protection Act.

ON a perusal of the records of the case of the District Forum, we find that in the very beginning of their reply dated 11.10.1995 the appellant has stated that all the contents of para 3 of the complaint are admitted except only, that the complainant draw advance from his provident fund.

THE contents of para 3 of the complaint, which are admitted by the appellant are as under : (i) That in 1991 the opposite party had formulated a housing scheme for the Government and local bodies employees which was known as "Kailo Vihar" Yojna. (ii) That, since the complainant was a Government servant and was eligible for allotment, he had applied for allotment of a 2400 sq. ft. plot in "Panijat" locality and had deposited Rs. 2,400/ - as registration fee vide Banker''s Cheque No. BN/32/014543 dated 27.4.1991. (iii) That on 29.7.1991 he was issued by the appellant an allotment letter (Adhikar Patra) for Plot No. 110 in "Parijat" locality. (iv) That vide letter No. 100/4.5.1991 dated 12.12.1991 issued by Superindent of the office of District and Sessions Judge, Raigarh he was informed that he had to fill up an option form and pay the balance amount accordingly. (v) That he paid in lump sum in one instalment the entire balance amount of the cost of the plot being Rs. 21,600/ by Banker''s Cheque No. BN - 32 -015477 dated 18.1.1992 of the State Bank of India. (vi) That still he has not been delivered the possession of the plot till this date.

In reply dated 11.10.1995, it was also further stated by the appellant that the aforesaid scheme was formulated by the then Collector and Adhikar Patra was issued but the possession of the plot could not be given for want of sanction of allotment of land by the Government and proceedings for allotment are in process.

IN view of these admitted facts, if the appellant had wanted the Municipal Committee to be made a party, it was essential for the appellant to explain as to what was the role played by Municipal Committee, Raigarh, in all these proceedings. But the appellant has not said a word on this point. Except, accepting the cheque of the complainant on 20.1.1992 perhaps only as a depositor, the Municipal Committee is not found on record to have played any other role whatsoever. In view of this, we do not find any reason, for the Municipal Committee to have been made a party to the proceedings.

SIMILARLY , Kailo Vihar Society having come into existence on 6.7.1993 has nothing to do with the transactions held prior to 6.7.1993. The amount of Rs. 1,88,050/ - deposited in Central District Co -operative Bank, Raigarh, in the account of Kailo Vihar Government Servant Housing Co -operative Society is evidently deposits made after 6.7.1993, that too, towards membership fee and "Ansh Poonji" only, or the Members. The written arguments of the appellant dated 16.9.1997 or the letter of the President of the Society dated 24.10.1996 sent to Collector, nowhere mention that the said amount of Rs. 1,88,050/ - includes deposits towards costs of plots or mat the costs of plots deposited by various allottees prior to 6.7.1993 have also been transferred to Society''s this or any other account else where. There is absolutely nothing on record to show even an ioto of relationship of the complainant with the Society. The transaction of payment of full cost of the plot had already been completed on 20.1.1992 on which date the Society was not in existence. As such the question of the Society also having been made a party to the proceedings, did not arise at all. The argument of treating this complaint as non -maintainable like the one in Case No. 15 / 95, in also not sustainable because according to the photocopy of the complaint filed before us, he had become a Member of Kailo Vihar Society on 10.1.1995, and had yet to pay instalments of more than 50% of the cost of the plot. Hence, facts of complaint in Case No 15/95 were totally different from this complaint.

THE argument of sanction for allotment of land to "Kailo Vihar" Society issued by the Government vide Memo No. 6 -8/7/Nagar/94 dated 26.12.1995/3.2.1996 is also devoid of any substance, because the order appealed against, was passed long before issuance of this sanction. Secondly this sanction for allotment of land is for "Kailo Vihar Society" which was not in existence on20.1.1992 on which date complainant paid full price of the plot. The complainant has requested for delivery of possession of Plot No. 116 measuring 2400 sq. ft. in "Parijat Locality" as per Adhikar Patra issued to him on 29.7.1991.

"ADHIKAR Patra", an undisputed document was issued from the office of the Collector with the signature of the Collector himself bearing the official seal of the Court of Collector and categorically states that Plot No. 116, measuring 2400 sq. ft. in "Parijat Varg" is allotted to the complainant. On the reverse side of this allotment order is obtained the signature of the allottee in respect of some terms and conditions, of which following need to be mentioned here : (i) That, the allottee will have to start construction within six months from issuance of this ADHIKAR Patra and will have to complete construction within three years. (ii) That on violation of the conditions or on the contents of the affidavit of the allottee being found incorrect, the allotment will be liable for cancellation by the Collector. (iii) That the Collector will have a right to cancel or amend this allotment order suo motu or under any circumstances with out any intimation to the allottee.

A perusal of this "ADHIKAR Patra" will make anybody fully convinced that this letter bearing signature and seal of the Collector issued from Collector''s office, indicating all powers in this respect being vested in the Collector only and none else, is a guaranteed allotment order holding all authority of law and Government, and ensures possession of plot within maximum six months'' time, else the Collector would not have put forth, on the allottee, a condition that he has to start construction within six months from the date of this allotment order.

AS such the contention of the appellant that he has no concern with these proceedings is beyond comprehension. On the other hand, it is the appellant only and none else, who is responsible for allotment of plot, collection of full cost of the plot and non -delivery of possession of the plot, even after expiry of so many years from the date of collection of full cost of plot, in advance.

THE other vaguely expressed arguments of the appellant are that the complainant is not a "consumer", non -delivery of possession of a plot is not a "deficiency" and the. Government do not perform "service" as defined in the Consumer Protection Act and therefore, the jurisdiction of Consumer Disputes Redressal Forum is ousted. According to Consumer Protection Act that person is very much a "Consumer" who "avails of any services for a consideration which has been paid." The provision of facilities in connection with "housing construction" is included in the definition of "Service", unless rendered free of charge or under a contract of personal service. Allotment of plots is part of "housing construction" and has been included in "service" in various decisions of Hon''ble National Commission. "Deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

IN the instant case, since the complainant availed of the facility of a housing scheme known as "Kailo Vihar Yojna" for a consideration of Rs. 24,000/ - which has been paid, he is a "consumer". He did not "hire" service, himself, but simply a vailed of a service, which was thrown open. "Kailo Vihar Yojna" was a "service" offered, for allotment of house -sites, on payment of cost as fixed, according to options offered, for payment. According to the terms and conditions of allotment, the allottee was directed to start construction within six months of issuance of allotment order and to complete construction within three years "essentially" and according to Condition No. 5, allotment was liable to be cancelled by me Collector on violation of terms and conditions of allotment. This specific condition implied that me possession of the plot was to be delivered with in six months positively. But when the possession was not delivered even after more than three years, this complaint was presented before the Forum. Non -delivery of possession of plot, for so long a period after having received full cost in advance is certainly a "deficiency" in service.

THE Hon''ble National Commission in their First Appeal Nos. 547 and 667 of 1992 [III (1994) CPJ 96] has held that if the opposite party allotted plots for house construction in respect of which he had no right to make allotment - it was deficiency in service and was triable as a "consumer dispute". In the instant case the Collector had no right to make allotment without prior sanction of land from the Government, nor to collect cost of the plot in advance. Now the only debatable point for consideration is, whether the State Government can be held liable for a "service", "allotment of house -sites to individuals" - a "service" which the appellant is neither expected to perform nor usually does perform. Whether expected to perform or not, "service" has already been performed through the Collector, on payment of consideration of Rs. 24,000/ -.The service has not been performed free of charge not under contract of personal service nor there is any proof to the effect that it was on no loss no profit basis. Service was not hired also. It was only "availed of" by the complainant, when throws open by the appellant through the Collector. And, there fore, the appellant is wholly responsible for deficiency in service and the complainant is entitled to relief as provided under Consumer Protection Act.

IN AIR 1994 SC 878, the Hon''ble Supreme Court has made following observation : "The provisions of Act have to be construed in favour of the consumer to achieve the purpose of enactment as it is social benefit oriented legislation." (Para 2)

"A Government or semi -Government body or a local authority is as much amenable to the Act as any other private body rendering similar service. Truely speaking, it would be a service to the society if such bodies instead of claiming exclusion subject themselves to the Act and let their acts and omissions scrutinised as public accountability is necessary for healthy growth of society." (Para 5)

"The Act requires provider of service to be more objective and care -taking. It is still more in public services. Any attempt, therefore, to exclude services offered by statutory or official bodies to the common man would be against the provisions of the Act and spirit behind it". (Para 5)

"If the service is defective or it is not what was represented then it would be "unfair trade practice" as defined in the Act. When possession of property is not delivered within stipulated period, the delay so caused is denial of service. Such disputes or claims not in respect of immovable property as argued but ''deficiency'' in rendering of service of particular standard, quality or grade. Such deficiencies or omissions are defined in Sub -clause (ii) of Clause (r) of Section 2 as unfair trade practice. Similarly, when a statutory authority undertakes to develop land and frame housing scheme it while performing statutory duty, renders service to the society in general and individual in particular." (Para 6)

The Hon''ble Supreme Court further directed as under, quoted in brief.

"Sections 11.17.21. Commission/Forum -Relief that can be granted - Not limited to award of value of goods or service - Compensation for harassment, mental agony of oppression suffered by consumer should also be granted. Commission should direct recovery of the same from person responsible for that." (Paras 8, 11)

AS such we do not find any reason to disagree with finding of the District Forum that there has been "deficiency" in service by the appellant and the complainant is entitled to be delivered possession of Plot No. 116 measuring 2400 sq. ft. in Parijat'' locality as per "Adhikar Patra" issued by the Collector, forthwith. The appellant has not challenged the quantum of compensation etc., awarded by the District Forum, as such, we need not discuss the same.

THEREFORE , this appeal is dismissed and order of the District Forum is maintained. We further order that the appellant shall pay Rs. 500/ - as cost of these proceedings to the complainant and if the possession of the plot is not delivered to the complainant within two months from the date of communication of this order, the appellant shall also pay interest to the complainant @ 15% on the cost of plot, paid by the complainant w.e.f. that date, till delivery of the plot. Appeal dismissed.