RAM CHAND vs ESTATE OFFICER, URBAN ESTATE

THIS appeal is by Ram Chand, the complainant whose complaint was dismissed by District Forum, Bathinda vide order dated July 9, 1996. vide aforesaid order, several complaints filed by the complainants against Punjab Housing Development Board stood dismissed. THIS order was challenged by other complainants in different appeals which were disposed of vide order October 3,1996 in Appeal No. 416 of 1996 "Uggar Sain Jain v. Punjab Housing Development Board. The appeals were dismissed with the observations that the complainants, if so advised could seek remedy if available elsewhere. All those complainants were held to be not consumers as defined under the Consumer Protection Act as no allotment had been made in their favour and their names had been considered in the draw of lots but they were unsuccessful. The case of Ram Chand, the present appellant is distinguishable. Hence it was separated from the lot and listed for arguments.

PUNJAB Housing Development Board, now called as PUDA floated different schemes for allotment of developed plots. One such scheme for Urban Estate at Bathinda was floated in 1971. Applications were invited for allotment of plots @ Rs. 25/-per sq. yd. The complainant Ram Chand applied for allotment of 250 sq. yds. of plot and deposited Rs.625/-vide Receipt No. 72 dated February 9,1972 with the opposite party. The amount was 10% of the tentative price of the plot. In 1988, the complainant was asked to intimate his choice of category on the basis of priority in payment. The opposite party formulated a scheme on March 2,1981, Annexure A whereby plots to be allotted were divided into two groups; (i) 250 sq. yds area and above, and (ii) 200 sq. yds, or less. The rate was fixed at Rs. 56/-per sq. yd. Options were to be given within 30 days of the receipt of the letter aforesaid. Ram Chand gave the option and sent the Bank draft for Rs.1,850/-dated June 9,1981 for a plot of 150 sq. yds. The aforesaid Bank draft was received by the opposite party and Receipt No. 14 was issued. The complainant also gave his approval/ consent vide Annexure ''C''. Subsequently, the opposite party decided to auction such plots of 250 sq. yds. The matter was taken to the High Court in writ petition. The writ petition was ultimately dismissed. Such writ petitioners approached the Supreme Court in SLP and the allotment of plots through auction was stayed. In spite of that the opposite party did not allot the plot to the complainant. After disposal of the writ petition by the Supreme Court, the opposite party issued a letter dated September 13,1993 Annexure ''D'' calling upon the complainant to submit his option alongwith affidavit for allotment of a plot against his previous application @ Rs. 950/-per sq. yd. The complainant asserts that this was arbitrarily done. Although, the complainant had applied for allotment of 150 sq. yds. of plot. Thus, he approached for a direction to the opposite party to allot a plot of 150 sq. yds @ Rs.66/-per sq. yd. in Urban Estate, Second Phase at Bhatinda. The opposite party con tested the complaint taking up preliminary objections. Jurisdiction of the Forum was challenged; price of the plot could not be challenged; complaint was alleged to be barred by time. Broadly on merits, the facts were not denied. In para 6, it was asserted that the plots were allotted by draw of lots held in January, 1994. All the eligible applicants'' names were considered. Sin, the complainant had not deposited 10% amount on demand from him vide letter dated September 13, 1993, his case was not considered and his application stood cancelled as per order dated January 10,1994. Neither copy of the letter nor order was attached with the written statement. The complainant Ram Chand filed a rejoinder denying the allegations of the opposite party and gave full details of payments made by him, amounting to Rs. 14,250/-, equivalent to l0% of the amount @ Rs. 950/-per sq. yd. He also referred to the receipts for the deposit of different amounts i.e. Rs. 625/-on February 9, 1992. Rs. l,850/-and Rs. 11,775/-on October 26, 1993. It was asserted that wrongly the name of the complainant was not considered in the draw of lots and he was deprived of his valuable right, which was deficiency in rendering service. Alongwith written statement, he produced the receipt for Rs. 625/-, copy of Bank draft dated June 9, 1981 for Rs. 1,850/-and receipt dated October 26, 1993 for Rs. 11,775/-for handing over Bank draft for the said amount dated October 22,1993, copy of which was also produced. The option letter was also filed by the Estate Officer, copy of which was produced. He also produced copy of letter inviting his option. The complainant filed his own affidavit and the documents as briefly referred to above, Annexures A-2 to A-5 and on behalf of the opposite party, affidavit of Manjit Singh Brar, Estate Officer was filed alongwith copy of receipt of Rs. 11,775/-copy of the Bank draft Annexures R2 and R3, respectively. In appeal, it was again asserted by the complainant who appeared in person that 10% of the price of plot was paid by him within time and the last date for depositing the same was extended by Punjab Housing Development Board. A clipping from the newspaper in that respect was also produced. This happened on April 22, 1997 when the case was adjourned to May 13, 1997, affording an opportunity to Counsel for the opposite party to verify. On May 13, 1997 though the complainant has not put in appearance, learned Counsel for the opposite party was not in a position to deny the aforesaid fact of extension of time. The stand taken up by the complainant that he had deposited the total amount representing 10% of the tentative price of the plot @ Rs. 950/-per sq. yd. stands established. The amount was deposited within the extended time and thus the name of the complainant was required to be considered alongwith other eligible candidates in the draw of lots.

Learned Counsel for the respondent relying upon the decision of this Commission in Uggar Sain''s case argued that even Ram Chand could not be treated as a consumer as defined as no plot of land had so far been allotted to him and his appeal should be dismissed. There is fallacy in the argument. The complainant having successfully established the requisite deposit of 10% of the price of the plot within the extended time, his name was required to be considered for allotment of plots alongwith other eligible applicants. Admittedly, his name was not considered, which amounts to deficiency in rendering service. Such a matter came up before this Commission in Appeal No. 73/1994 "J.P. Singh v. Improvement Trust, Ludhiana", which was decided on May 11, 1995. Relying upon the decision of Delhi State Commission in "Ashish Kumar Biswas v. Delhi Improvement Trust Authority" I (1997) CPJ 409=1995 (1) Consumer Law Today, 302, it was held that an applicant who was eligible to be considered for allotment, could be a consumer having hired services of the opposite party for consideration and his name having been not considered would amount to deficiency in rendering service and he would be a consumer as defined under Section 2(d)(ii) of the Act and that Clause (i) will not be attracted to such a case. Holding as above, the complainant is held to be a consumer and that his name was not considered alongwith eligible persons, which amounts to deficiency in service.

FURTHER question which requires consideration is regarding relief which can be allowed to the complainant at this stage. It has not been shown that any more plots of the aforesaid category are available or not and as to whether other eligible candidates are also aspiring for the same or not. Thus direction is required to be given alternatively. For the reasons recorded, this appeal is allowed. The impugned order of the District Forum is set aside, qua the case of Ram Chand, complainant. A direction is given to the opposite party to hold another draw of eligible applicants including the name of the present complainant, if plots of category applied for by the complainant are available and if successful, the complainant be allotted the plot at the original price then prevalent i.e. at the rate of Rs. 950/-per sq. yd.

IF no such plot is available, the opposite party is directed to consider the case of the complainant for allotment of plot of the same size in other developed colony at Bathinda as developed by the opposite party. IF successful to allot the plot at the rate of Rs. 950/-per sq. yd. Since, the complainant''s name was not considered in the draw of lots earlier held there is obvious deficiency in rendering service entitling the complainant to compensation for the loss suffered. In case of allotment of plot as discussed above and taking into consideration the rise in the price of building material and costs of construction, the opposite party would pay a sum of Rs. 40,000/-to the complainant. It is so ordered taking into consideration that if at the appropriate time, the name of the complainant had been put in the draw and if successful, would have completed the constructions within a reasonable time. On account of mental tension and agony suffered due to harassment caused, the opposite party would pay a sum of Rs. 10,000/- to the complainant whether plot is allotted to him or not.

THE complainant would also get costs of the litigation before the District Forum as well as this Commission, which are assessed at Rs. 5,000/-. THE aforesaid directions would be complied within a period of two months from the receipt of copy of the order. THE appeal is disposed of as above. Appeal allowed.