VICE CHAIRMAN, VISAKHAPATNAM URBAN DEVELOPMENT AUTHORITY vs P.POTHURAJU

WE do not find any ground for interfering with the order of the Vizianagaram District Forum dated 27.5.1998 in O.P. No. 189/1995 questioned by the opposite party in that O.P. The complainant in the O.P. is the respondent before us.

THE facts are simple and the conclusion cannot be otherwise that what the District Forum held. THE complainant applied for a plot in Baba Metta Phase II lay out and he was allotted a plot of an extent of 292 square yards at Rs. 72/- per square yard as per the original proceedings of allotment dated 11.3.1991. However, the complainant examined the plot and he found it not suitable for constructing a house and he wanted change of the plot. On the representation of the complainant, the appellant got the plot examined and found that it was not suitable for construction of house. THE District Forum on an examination of the material before it held as follows: "On the representation of the petitioner the respondent has examined the plot in detail and found that it is not suitable for construction of house and requested the petitioner to select one of the plots in plot Nos. 269-A and 269-B of Baba Metta Phase I lay out as per its letter No. LIC 353 / BM-II/ B-3, dated 8.11.1994. THEreupon the petitioner selected plot No. 269-B of MIG to an extent of 318 square yards...."

This finding of the District Forum is not questioned in any of the grounds raised by the appellant in this appeal. In spite of offering an exchange, after the complainant accepting that offer selected plot No. 269-B, the appellant demanded for that plot Rs. 150/- per square yard. The complainant remonstrated stating that he had to be charged only at Rs. 72/- per square yard for 292 square yards and that he would be willing to pay the excess rate for the remaining extent. The appellant came down partially and in its proceedings dated 8.5.1995 fixed the rate at Rs. 72/- per square yard for 167 square yards and for the remaining 151 square yards demanded at Rs. 150/- per square yard. This was questioned by the complainant before the District Forum. Relying on the decision of the National Commission in Smt. K. Saksena & Anr. v. Ghaziabad Development Authority & Anr., I (1996) CPJ 76 (NC), the District Forum held that the appellant could demand the excess rate only for the extent over and above 292 square yards and not for any extent within the 292 square yards. This is sought to be questioned in this appeal.

In the grounds of appeal it is contended that the order of the District Forum is contrary to the decision of the National Commission in Smt. K. Saksena case. We carefully examined that decision. We find that it supports the view taken by the District Forum and that the facts of the present case do not warrant a different view. In that case the plot of an extent of 393.32 sq. mts. allotted to Smt. K. Saksena in August, 1981 was found to contain a big water tank of the Irrigation Department and the authority concerned did not get the tank removed and under those circumstances the Ghaziabad Development Authority allotted to her another plot of an extent of 500 sq. mts. in March, 1987 and demanded price for the newly allotted plot at the rates prevailing in 1987. She deposited in lumpsum in 1981 itself the full price amount demanded for the earlier plot. The original plot offered to her was in Sastri Nagar whereas the newly allotted plot was in Nehru Nagar. The National Commission held as follows : "The demand of the GDA to pay the price of the alternative plot price at the rates prevailing in 1987 was definitely unreasonable as the complainant No. 1 was not at fault. The complainant put a counter proposal to the effect that for an area of 393.32 sq. mts. out of the newly allotted plot be calculated at the price at which plot No. SK-26 was allotted to her. About the remaining area she was prepared to pay the price prevailing in 1987. The proposal made by the complainant was very reasonable. Equity also demands that the proposal put forward by the complainant should have been accepted by the GDA. However, the GDA demanded price for the newly allotted plot at the rates prevailing in 1987. However, we cannot determine the price to which GDA might be entitled to as the question of pricing of a plot/flat by a Housing Board or developer is not consumer dispute. It was so held by this Commission in Gujarat Housing Board v. Datania Amritlal Fulchand and Ors. The complainant can only be granted compensation for the deficient of service rendered by the GDA."

In the result in that case the National Commission directed the GDA to allot one plot measuring 350 sq. mts. in Govind Puram to that complainant at the price at which plot in Shastri Nagar was allotted and also pay to her Rs. 20,000/- as compensation and if the complainant was not prepared to accept the said proposal extended by the GDA she would be entitled to the refund of the amount deposited by her with interest at the rate of 18% per annum and also compensation of Rs. 1 lakh with interest @ 18% from the date of the order.

IN the present case when the appellant admitted after examining the plot that the plot in Baba Metta Phase II lay out was not suitable for construction and asked the complainant to select one of the plots in plot Nos. 269-A and 269-B without in any manner indicating in the letter dated 8.11.1994 that he could have such exchange only on payment of higher rate, it is not open to the appellant to turn around after the complainant accepted one of the plots offered and made his selection. Moreover in the present case the VUDA fixed the rate of Rs. 72/- per sq. yard for 167 sq. yards instead of 292 sq. yards without any basis for such restriction. On the facts of the present case, that amounts to deficiency in service. We are not interfering with the price fixed by the VUDA but point out that restricting that rate of Rs. 72/- to only 167 sq. yards instead of 292 sq. yards is without any basis and arbitrary on the peculiar facts of the present case. We are supported in this view by the decision of the National Commission in Jatinderdev Singh Musafir v. Ludhiana Improvement Trust, I (1997) CPJ 74 (NC). In that case the opposite party made a promise to the complainant for allotment of a residential plot measuring 1,000 sq. yards and the complainant paid the entire consideration by instalments. After several representations by the complainant the opposite party allotted to him a plot of 500 sq. yards only under another scheme and required him to pay a further sum of Rs. 10,000/-. The complainant paid the additional sum of Rs. 10,000/- and took possession of that plot of 500 sq. yards under another scheme. Thereafter the complainant approached the District Forum complaining that there was deficiency in service on the part of the opposite party and for directing to it to allot an additional plot of 500 sq. yards and to refund the additional Rs. 10,000/- collected by it. The District Forum held that the opposite party had resorted to clear unfair trade practice and also committed deficiency in service in the case of the complainant and allowed the complaint and directed the opposite party to allot another plot of 500 sq. yards to the complainant in some other alternative locality of the same type on the old price and to refund the excess sum of Rs. 10,000/- collected from the complainant with interest @ 15% per annum from the date of deposit. On an appeal by the opposite party, the State Commission reversed that decision observing that it was not within the jurisdiction of the FORA to go into the pricing pattern. In the revision filed by the complainant, the National Commission set said the decision of the State Commission and upheld the order of the District Forum observing that the opposite party made a promise to the complainant for allotment of a residential plot measuring 1,000 sq. yards under a particular scheme and the complainant deposited the entire consideration by instalments and that he was therefore entitled to the delivery of possession of the allotted plot. In the present case the appellant admitted that the plot allotted to the complainant was not suitable for construction and offered alternative plots on its own without indicating that the complainant should pay higher rates. After the complainant exercised his choice the appellant cannot turn around and demand higher rates. We therefore do not find any merit in this appeal. It is accordingly dismissed. No costs. Appeal dismissed.