USHA AGARWAL vs U.P.AVAS EVAM VIKAS PARISHAD

THIS is an appeal against the order of the State Consumer Disputes Redressal Commission, Uttar Pradesh at Lucknow passed in Case No. 109/S.C./91 on the complaint filed by the present appellant Smt. Usha Agarwal against Commissioner, Uttar Pradesh Avas Evam Vikas Parishad (for short the "Parishad"). The brief facts are that by a publication in the month of November, 1988, the Parishad invited applications for sale of shops under the Self-Financing Scheme in Neelgiri Complex, Indira Nagar, Lucknow. According to the brochure, possession of the constructed shops after full payment was proposed to be handed over by 30th June, 1989. The registration was to be done on the basis of "First come - First served". On the basis of the said brochure, the appellant got herself registered for allotment of one shop in that complex and deposited a sum of Rs. 32,000/- as registration fee and the balance amount of Rs. 96,945 was to be paid in six instalments. Those instalments were payable each month by the 10th of the following month. In case of late payment, penal interest at 18% p.a. was to be paid by the allottee. The appellant paid the amount. However, there was some delay in the payment of the sixth instalment. Hence, she had to pay Rs. 820.05 paise by way of interest. The sixth instalment was paid in September, 1989. The appellant was not given possession of the shop by the 30th June, 1989. She served notices upon the Parishad for the delay in delivery of possession but without any success. Thereafter, she filed a complaint under Consumer Protection Act, 1986 (for short "the Act") before the State Commission in May, 1990 claiming the following compensation : (1) Interest on the amount paid @ 18% p.a. from 30th June, 1989 till actual possession of shop. (2) Rs. 1,500/- per month from 30th June, 1989 as compensation towards expected income from the shop. (3) Rs. 5,000/- in lump sum as she had to spend sizable time and money in running about for getting possession of the shop.

THE complaint was contested by the respondent. A preliminary objection was taken to the jurisdiction of the State Commission alleging that the Parishad provides plots and houses only to registered persons hence its activities do not come under the definition of "service" as defined in the Act. On merits it was pleaded that the complainant got herself registered after accepting all conditions and restrictions on the basis of the advertised rules and deposited necessary fee. That though the possession of the shop was proposed to be given to the allottees by 30th of June, 1989 but it was also mentioned in the rules that in case there was delay in delivery of possession due to any reason, there will be no increase in the cost of the shop. It appears that the question of jurisdiction was not pressed before the State Commission. Vide impugned order dated 30th September, 1991 the State Commission directed the Parishad to deliver possession of shop No. 28 in question to the complainant latest by 30th November, 1991 after completion of necessary formalities failing which the Parishad would pay damages to the complainant at the monthly rate of Rs. 1,500/- (or part of month) from the 1st of December, 1991 to the actual date on which it is made available. The complainant was also awarded lump sum payment of Rs. 5,000/- for the inconvenience caused to her. It was further ordered that the said amount shall be paid by 30th November, 1991 failing which such amount shall carry interest at the rate of 18% p.a.

THE main grievance of the Complainant-Appellant in this appeal is that the State Commission has not allowed interest to her inspite of the fact that the possession of the shop was not delivered to her by the proposed date, i.e., 30th June, 1989. She has also complained about the inadequacy of the compensation granted to her by the State Commission as she had to undergo much physical and mental suffering due to the breach of assurance committed by the respondent in not delivering possession of the shop on due date, i.e., June 30, 1989 and that she would have earned around at least Rs. 3,000/- per month had the possession been delivered to her by the proposed date.

THE appeal has been contested by the Parishad by filing a written reply to the Memorandum of appeal. The challenge to the jurisdiction of the forums constituted under the Act has been reiterated. It was also pleaded that the expected date of delivery of possession was 30th June, 1989 but it was not definite date and as such the Parishad is not liable to pay any compensation. On account of the delay the cost of the construction of the shop increases but in view of the terms and conditions of the allotment the Parishad has not charged any extra amount on this account from the allottee. It was stated before us on behalf on the respondent herein that the possession of the shop in question has since been delivered to the appellant in compliance of the orders of the State Commission.

THE Parishad has not raised before this Commission the question of jurisdiction of the forums constituted under the Act to decide the matter in dispute. Otherwise also it has no force. In U.P. Avas Evam Vikas Parishad (Housing Development Board) v. Garima Shukla and Ors., 1(1991) CPJ 1 = (1993) 1 CTJ 463 (CP) this Commission had remarked : "The mere fact that Housing and Development Board is a statutory body does not mean that it is outside the purview of the Consumer Protection Act. The Housing and Development Board is engaged in serving the public in the matter of providing housing by acquisition of land, development of sites'' construction of houses thereon and allotment of plots/houses to the public. The Board is clearly engaged in rendering service for consideration to the public and therefore those who are allotted plots/houses from the Board are clearly consumers falling within the definition in Section 2(1)(d)(ii) of the Act. Again under Section 2(1)(o) of the Act the definition of the term "service" is very comprehensive : it means "service of any description" including banking, financing, insurance, transport, processing, supply of electrical or other energy, entertainment etc. This leaves no room for doubt that the type of service which the Board renders to the public for a consideration is clearly covered by Section 2(1)(o). Moreover, vide amendment of the Act recently made by the Ordinance issued in June, 1993 the term "housing construction" has been included in the definition of ''service'' given in Clause (o) of Section 2(1) of the Act. The majority view of this Commission is that the words "housing construction" will take in commercial complexes also. Reference can be made to the decision in R.P. No. 96 of 1992 decided on 14.9.1993.

THE main question to be considered is whether the appellant is entitled to any interest or compensation on account of the delay in delivery of the possession of the shop. The appellant has filed the brochure issued by the Parishad in respect of Neelgiri Complex. One of the condition of allotment (translated into English) runs "physical possession to allottee is proposed by 30.6.1989, but in case, due to any reason giving of possession is delayed than as far as possible, no increase in cost would be made." From the above term it is clear that the date of delivery of possession as given in the brochure was only a tentative one and was not a definite date. The Parishad undertook that in case there was delay in delivery of possession no escalation charges would be claimed from the allottee. In the present case no escalation charges have been claimed by the Parishad from the appellant. We have not been able to understand how the appellant can get out of that term. When she got herself registered for allotment of a shop under the scheme and paid the necessary deposits, she has accepted all the terms contained in the brochure. The appellant cannot be now heard to say that only the Parishad is bound by the above term and she is entitled to interest or compensation as possession was not delivered to her by the proposed date. In the circumstances of the present case, we hold that the present appeal has no force. In the light of the above observations, we uphold the order of the State Commission and dismiss the present appeal. We make no order as to costs.

JUSTICE Y. Krishan, Member: - The relevant essential facts of the above case are noted very briefly.

THE appellant Smt. Usha Agarwal had paid during 1988-89 a sum of Rs. 1,28,945/- for allotment of a shop. In spite of the payment in full, the possession of the shop was not given to her. So, she moved the State Commission which ordered in 1991 the delivery of possession of the shop plus Rs. 5,000. However, no interest on deposit amount for the period of delay in delivery was allowed. So she had appealed against the order of the State Commission for the grant of the interest on the deposit. The counsel for the Respondent builder maintained that the Consumer Forums had no jurisdiction to entertain the complaint inasmuch as it relates to immovable property and that there was no deficiency in service relating to housing construction as per Section 2(1)(o) of the Consumer Protection Act, 1986 as amended in 1993. This is the basis of challenge to the order of the State Commission.

THE above question has been fully dealt with by me in the order in Revision Petition No. 95 of 1992 (Shri Tek Chand Jain v. Raj Kumar) delivered on 13th September, 1993. In the light of the said reasoning, the appeal is dismissed and the order of the State Commission is also set aside having been made in the wrongful exercise of jurisdiction. There is no order as to costs.