USHA JAIN vs Up Avas Vikas Parishad

THE above referred appeals have been filed against the judgment and order dated 5.5.1994 passed by District Consumer Forum, Ghaziabad, in Comp. Case No. 296/93. Appeal No. 1541/94 has been filed by Dr. Usha Jain against respondent UP Avas Vikas Parishad. Appeal No. 2203/94 has been filed by Avas Vikas Parishad against respondent Dr. Usha Jain. These two appeals have arisen out of the judgment and order dated 5.5.1994 mentioned above passed by District Consumer Forum, Ghaziabad. The revision petition has been filed by Avas Vikas Parishad against Dr. Usha Jain against the orders passed by District Consumer Forum, Ghaziabad, on 21.7.1999 in execution proceedings arising out of the judgment and order passed by the Forum as stated above.

SINCE both these appeals and revision relate to the same case, they are being taken up together for decision. The facts of the case are as follows : U.P. Avas Evam Vikas Parishad floated a residential scheme in 1985 known as Vasundhara Yojna under Prahlad Garhi. In the residential scheme, applications were invited for residential plots from the eligible persons. The appellant Dr. Usha Jain alongwith others deposited the registration amount and a allotment letter was issued to her. The plot number was also earmarked. It was stated by Avas Vikas Parishad that the possession of the plots to the applicants would be given within a period of one month but no possession was given inspite of the fact that an amount of Rs. 1,74,028/ - was deposited from time to time by the appellant with Avas Vikas Parishad as per details given below : On 14.2.1985 Rs. 5,000/ - On 21.12.1991 Rs. 1,975/ - On 21.12.1991 Rs. 62,025/ - On 15.2.1992 Rs. 20,000/ - On 1.5.1992 Rs. 75,038/ - Total Rs. 1,74,028/ -

SINCE the possession was not delivered inspite of the fact appellant deposited the amount as stated above with the respondent Avas Vikas Parishad, the complaint was lodged with District Consumer Forum, Ghaziabad. In this complaint, possession of the plot in question was demanded alongwith 18% interest on the amount deposited till the date of possession. It was also claimed that no interest should be levied on the appellant by respondent. Compensation was also demanded for mental tension and financial loss caused as the possession of the fully developed plot had not been given.

THE case of Avas Vikas Parishad before the District Consumer Forum was that the appellant was informed to take possession of the plot in December, 1992. The appellant was also informed that registration charges should also be deposited. It was also stated development work had already taken place and it was the duty of the appellant to pay the lease rent and get the formalities of possession completed as per the provisions of the Stamp Act. District Consumer Forum concerned came to the conclusion that timely possession was not handed over to the appellant and inspite of the fact that full cost of the plot has already been paid, Avas Vikas Parishad delayed the delivery of possession letter. District Consumer Forum, Ghaziabad, ordered that interest @ 15% p.a. was liable to be paid by Avas Vikas Parishad from the date of deposit of full payment till December, 1992. It was also ordered by District Consumer Forum, Ghaziabad, that the appellant shall be given possession of the plot within one month and formalities of registration shall also be completed by the appellant in time.

AGGRIEVED of this order, Dr. Usha Jain has come in the appeal. In the grounds of appeal, it has been stated that learned District Consumer Forum, Ghaziabad, has passed judgment and order dated 5.5.1994 without perusing the relevant information placed on records and neglected the documentary evidence filed. The appellant had paid the full amount in respect of the plot in question. Fully developed plot was to be handed over to the appellant within one month of the total amount deposited but there was no development at all. A vague letter was issued by Avas Vikas Parishad on 23.12.1992 but the development of the property in question had not been completed and it was not possible to build house in absence of basic facilities like water, roads, street lights, sewerage, drainage and approach road etc. The respondent Avas Vikas Parishad was not in a position to deliver the possession of the plot in question as per their vague letter dated 23.12.1992. As would be evident from the tenders invited by the respondent indicating the development work of the scheme in question in May, 1993 and June, 1993. It reveals that possession of the property in question was not handed over to the appellant because of the fact that development work was not complete. The appellant, therefore, claimed that instead of interest @ 15%, interest @ 18% should be given to her till date of deposit of respective amount. It was also stated in the memo of appeal that no further interest on account of any delay in taking over the possession of the plot should be charged. Recovery of lease rent of 99 years amounting to Rs. 15,400/ - should also be revived. Amount of Rs. 50,000/ - as compensation for mental and physical damage be awarded alongwith cost of appeal amounting to Rs. 4,000/ -.

ON the other hand opposite party Avas Vikas Parishad also filed an Appeal No. 2203/94. In the grounds of appeal, Avas Vikas Parishad has stated that the complainant is not covered by the Consumer Protection Act and the matter relating to property does not come within the jurisdiction of Consumer Court. It was also stated that the plot in question was allotted to the complainant as per the orders of Avas Vikas Parishad. The complainant was directed to get the registration of the property done but instead of complying with the instructions of the appellant, the complainant filed an appeal in the District Consumer Forum, Ghaziabad. The plot in question was fully developed but the complainant was not willing to get the formalities of registration etc. completed as she had taken loan from U.P. Avas Sangh and in that event the plot under reference shall have to be mortgaged to Avas Sangh. The revision petition filed by Avas Vikas Parishad is directed against the order passed by the District Consumer Forum, Ghaziabad, in pursuance of the judgment and order appealed against. In the execution proceedings, the concerned Forum passed the order to the effect that since O.P. was in the knowledge of order of the District Consumer Forum, Ghaziabad, passed on 5.5.1994, therefore, in compliance of the order, an order of simple imprisonment of one month on opposite party No. 2 Estate Management Officer, Avas Vikas Parishad, Ghaziabad, was passed. The revision petition contains the grounds that no order can be passed under Section 27 of the Consumer Protection Act without making compliance of Section 25 of Consumer Protection Act and since the appeal has already been filed by the revisionist, the judgment and order dated 5.5.1994 of the District Consumer Forum, Ghaziabad, was not final and punishment order under Section 27 of the Consumer Protection Act cannot be passed. No opportunity was given to the Estate Management Officer to submit his reply and the Forum concerned exceeded in its jurisdiction to pass the order of sentence.

WE have gone through the entire evidence on record. We have also heard arguments of the learned Counsels of the two parties. The learned Counsels for the appellant Dr. Usha Jain have argued that possession of the plot in question has been handed over to the appellant. The only point that remains is that of dispute on interest. The learned Counsels for the appellant Dr. Usha Jain argued that since the development of the plot in question had not taken place and the possession was handed over only on 25.8.1999, therefore, interest should be allowed till the date of possession. On the other hand learned Counsel for Avas Vikas Parishad has argued that the Parishad was prepared to give possession in 1992, therefore, the order of District Consumer Forum, Ghaziabad, on the interest till 31.12.1992 on the deposited amount is quite clear and no interest should be payable for the period beyond 31.12.1992.

WE find that Avas Vikas Parishad the appellant and revisionist has not come with clean hands in this matter. In case the development of the scheme in question was complete, there was no ground for Avas Vikas Parishad to have delayed the handing over of possession of the plot to Dr. Usha Jain. We find that possession was given on 21.7.1999. The plea of Avas Vikas Parishad that registration etc. was not done by the appellant Dr. Usha Jain does not hold water as even after taking up of the possession, the complainant or the allottee to whom the property has been allotted is allowed to take possession and then complete the formalities of registration at a later stage under the provisions of Stamp Act. The evidence on records which includes copies of tenders invited by Avas Vikas Parishad clearly goes to prove that development of the site in question had not been completed. The tender dated 21.4.1993 shows that internal road, drains, culverts, parks and internal water supply were yet to be taken up. The tender notices issued on 12.9.1994, 5.7.1994, 24.7.1994, 26.7.194, 21.9.1994, 26.9.1994, 17.12.1994, 31.12.1994, 17.12.1996, 22.12.1996, 16.1.1997 and 23.8.1999 also indicate that full development had not taken place in the entire scheme. There is no doubt that these tenders were only for their particular scheme where the plot in dispute is situated. The scheme is very vast one and some development works for which tenders have been issued from time to time may relate to other part of the scheme but at the same time this important point cannot be ignored that possession remained undelivered for a number of years. Therefore, it cannot be ruled out that allotted site remained in the process of development for a pretty long time especially when the possession was delivered to the appellant Dr. Usha Jain in August, 1997 and that too after the learned District Consumer Forum passed the order in execution proceedings. This abnormal delay on the part of the appellant/respondent/revisionist Avas Vikas Parishad is a clear and distinct deficiency of service. The appellant Dr. Usha Jain had deposited the entire cost of the plot in question in May, 1992. Presuming that Avas Vikas Parishad was prepared to hand over possession in 1992 and at the same time the development was not complete, the complainant could not have taken the possession of under -developed property. The order of the learned District Consumer Forum, Ghaziabad, alongwith the interest @ 15% p.a. till 31.12.1992, therefore, deserves to be modified to the extent that the interest will be payable @ 18% p.a. from 1.6.1992 till the date of possession. The appeal of the appelant Dr. Usha Jain, numbered 1501/94 is liable to be allowed and Appeal No. 2203/94 of Avas Vikas Parishad is liable to be dismissed. The appellant Dr. Usha Jain is also liable to get Rs. 2,000/ - as cost of the appeal. On the point of revision, we find that sufficient opportunity was not given to the revisionist and instead of sentence order passed against the Estate Management Officer, Avas Vikas Parishad, Ghaziabad, a show cause notice should have been given which was not done by the District Consumer Forum, Ghaziabad. Order

APPEAL No. 1541/94, filed by Dr. Usha Jain, is partly allowed. It is directed that Avas Vikas Parishad shall pay interest @ 18% p.a. with effect from 1.6.1992 till the date of handing over of the possession of the plot i.e. 25.8.1999 on the entire amount deposited alongwith cost of the appeal amounting to Rs. 2,000/ -. The interest and cost of the appeal shall be paid within six weeks of receipt of this order. The judgment and order dated 5.5.1994 passed by District Consumer Forum, Ghaziabad, in Complaint Case No. 286/93 shall stand modified to this effect.

APPEAL No. 2203/94 filed by Avas Vikas Parishad is dismissed. Revision No. 90/99 is allowed and the order dated 21.7.1999 passed by District Consumer Forum, Ghaziabad, is set aside and the order of sentence is hereby quashed. A/1541/SC/94 partly allowed with costs. A/2203/SC/94 dismissed and R.P. 90/SC/99 allowed.