U P AVAS EVAM VIKAS PARISHAD AND ANOTHERN vs ROOP REKHA JOSHI

-ISSUE, which arise for consideration in these appeals, is identical hence these are decided on merit by this common judgment.

COMPLAINANTS of these cases Smt. Roop Rekha Joshi; Sh. Bhuwan Chand Joshi and Sh. Hem Chand Tiwari, registered themselves for allotment of residential houses in the month of August - September, 2000 under self-financing scheme of the appellant - Housing Board and paid for the registration fee of Rs. 49,000 each in the case of first two complainants and Rs. 23,500 in the case of 3rd complainant. The above named first two complainants were registered for housing scheme No. 2, type 53/127 and whereas the 3rd complainant was registered under housing scheme No. 2, type 29/60. Houses proposed to be built by the Board, could not be constructed and, therefore, by letter No. 628 dated 24. 10. 2000 and another letter No. 698 dated 9. 11. 2000, the registered applicants were asked to submit their consent for allotment of plots matching the site of the proposed houses. In response to the letter dated 9. 11. 2000, the complainants submitted their consent in prescribed form for allotment of plots of land by the date fixed for the purpose. However, State of Uttarakhand was created on 9. 11. 2000 and by the new State, a ban on transfer of the properties by the Housing Board was imposed. Ban was decided to be lifted in the meeting dated 5. 4. 2003 of the concerned authorities and the decision was thereafter communicated to the Housing Board also by letter dated 21. 6. 2003 (copy of the letter placed on records by the complainants ). According to the appellants, the ban continued to be in force till 14. 9. 2004 (no document could be produced by the appellants ). Feeling aggrieved by the deficiency in service on the part of the Housing Board on account of the allotment having not been made, complaints were filed claiming allotment on the basis of the old rates of the land and for recovery of damages for harassment and mental agony resulting from inordinate delay in the allotment. Briefly stated, the defence taken by the Board, was that under Regulation No. 15 of Uttar Pradesh Avas Evam Vikas Parishad (Registration and Allotment of the Properties and Houses ). Regulation, 1979, it was not under any obligation to allot the plots to the complainants; that the complainants have no right to get the allotment at the rate prevalent in 2003; that the allotment of the properties could be made in favour of the complainants provided they give their consent for allotment at the rate prevalent at the time of the allotment and that there being ban on transfer, no deficiency in service has been made.

The District Forum on an appreciation of the material on record and legal aspect of the case, went on to hold that the Housing Board made deficiency in service in not making the allotment of the houses and later on the properties offered by it and on this premise, partly allowed all the three consumer complaint Nos. 120 of 2004; 121 of 2004 and 123 of 2004, whereby the Housing Board was directed to make allotment of plots of land for construction of the houses, matching the site of the earlier proposed houses under housing scheme No. 2, A Block, type 53/127 and type 29/60 in favour of the complainants at a price of Rs. 1,800 per sq. mt. and to complete the required formalities and also to hand over possession within a period of one month from the date of the order i. e. 15. 2. 2006. Cost of Rs. 1,500 each was also awarded to the complainants. Housing Board, feeling aggrieved by these orders, filed these appeals.

WE have heard the learned Counsel for the parties and have carefully considered their submissions in the light of the facts of the case and legal aspect of the matter in controversy. Considering the broad factors of the case, say, that the complainants have submitted their consent for allotment of such matching alternative plots of land in response to letter No. 698 dated 9. 11. 2000; availability of such matching plots with the Housing Board despite the fact that out of 25 registered applicants for allotment of the houses under self-financing scheme, allotment had already been made to 14 applicants (as mentioned in the reply of notice dated 10. 6. 2004, Paper No. 41 on the record of Appeal No. 64 of 2006) and the proposal to allot matching plots to the complainants also on the rate prevalent at the time of the allotment, the only question, which arise for determination of these appeals, is as to whether the District Forum was justified in directing the Housing Board to allot the matching properties to the complainants @ Rs. 1,800 per sq. mt. If not, what would be the rate, at which the allotment of the plots to the complainants, was required to be made by the Housing Board. As has been submitted by the learned Counsel for the Housing Board, the delay in the allotment of the plots was not on account of any negligence or indifference on the part of the authorities of the Board, but it was due to the ban imposed on transfer by the newly created State of Uttaranchal (now Uttarakhand) on 9. 11. 2000. It was further submitted that the ban continued to be in force till 14. 9. 2004, but no documentary evidence having been brought on record in that regard, the District Forum was justified in coming to the conclusion, on the basis of the letter of the Government mentioned above, that the ban was lifted in the month of June, 2003 and, as such, the Housing Board was under an obligation to act upon the consent given by the complainants at the earliest, so as to allot the plots to the complainants. In the face of the facts of the case, the stand taken by the Housing Board was that the allotment of the plots could have been made by draw of lots, as and when a scheme in that regard was to be published and which was so done by publication of the scheme in the newspaper on 7. 9. 2004. The draw of lots was proposed to be held on 13. 9. 2004 and 29. 9. 2004 and that too, at the prevalent rate also mentioned in the published notice. In the totality of the facts and circumstances of the case, we could not subscribe to such proposal, mainly for the reason that the complainants were the registered applicants for allotment of the houses under self-financing scheme and they should not have been equated with the proposed allottees under different categories by draw of lots under the published notice. Therefore, we find ourselves in full agreement with the view of the District Forum that the complainants were entitled to be given allotment of the matching plots soon after the ban was lifted in the month of June, 2003 and that too, at the rate prevalent at that time.

THE above inference takes us to the question of propriety of the rate fixed by the District Forum itself on the premise that when the ban on transfer was lifted by the Government, the circle rate of the properties of land was Rs. 1,800 per sq. mt. In this connection, learned Counsel for the Housing Board rightly submitted that it is a settled law that Consumer Forums cannot go into the question of pricing, it being not a consumer dispute and for this proposition, the learned Counsel rightly pressed into service among others, the latest decision of the Hon''ble Supreme Court in the case of Tamil Nadu Housing Board and Ors. v. Sea Shore Apartments Owners Welfare Association, I (2008) CPJ 45 (SC)=i (2008) SLT 570=air 2008 SCW 1080 and wherein the principle laid down was that in the matter of price fixation, the executive has a wide discretion and is only answerable provided there is any statutory control over its policy of price fixation and it is not the function of the Court to sit in judgment over such matter. Considering the settled legal principle, we have to accept the submission that the District Forum was not justified to fix the price of the plots to be allotted on the basis of the circle rate prevalent in the month of June, 2003. In other words, the District Forum fell in error in directing the allotment of the plots to the complainants @ Rs. 1,800 per sq. mt. Since the Housing Board had right to fix cost of the plot as per its own policy and condition of the allotment, the Housing Board could have only been directed to allot the plots to the complainants for and at the price prevailing at the time, when the ban on transfer was lifted in the month of June, 2003. No doubt that the price was required to be fixed by the Board as per its own settled policy and of course, not arbitrarily. Consequently, we have to hold that the District Forum was not justified to direct the allotment of the plots to the complainants @ Rs. 1,800 per sq. mt. and, as such, the direction cannot be maintained and the impugned orders need to be modified accordingly. For the reasons aforesaid, all these three appeals succeed partly and are to be allowed accordingly. All these appeals are partly allowed. The impugned orders dated 15. 2. 2006 passed in all the three consumer complaints, are modified to the extent that the appellant- Housing Board shall allot the matching plots to the complainants and deliver possession within a period of two months from the date of this order for and at the price prevalent in the month of June, 2003 and to be fixed by the Housing Board per its own settled policy and norms. Rest part of the impugned orders, is hereby maintained. Cost of the appeals made easy.

LET the copy of the judgment be kept on the record of Appeal Nos. 64/2006 and 65 / 2006. Appeals partly allowed.