Mrs. Devinderjit Dhatt, Member:
1. This order of ours will dispose of two appeals i.e. Appeal Nos. 39 and 55 both of 2001 as both arise from the common order dated 11.12.2000 in Complaint Case No. 110 of 2000 passed by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (for short hereinafter to be referred as the District Forum-II).
2. The contextual facts narrated briefly are given in the succeeding paragraphs.
The plot No. 242, Sector-1, Part-I, Shahbad Markanda, Distt. Kurukshetra (Haryana) was allotted to Mrs. Pushpa Kataria vide allotment letter dated 17.12.1986 and a copy of the allotment letter has been brought on record vide Annexure C-1. The same plot was re-allotted to appellant/complainant, Mrs. Inder Prabha, resident of Subhash Nagar, Ward No. 14, near Punjab National Bank, Shahbad Markanda, District Kurukshetra vide re-allotment letter dated 11.3.1991 (Annexure C-2). As per the averments made, inter alia, the plot could not be constructed firstly due to a Nullah flowing very close to the area of the plot and it being situated on low level the dirty water from the Nullah gets accumulated in the plot of the appellant/complainant rendering it difficult to raise any construction. Further the appellant/complainant has averred that there is a cremation ground very near to her plot. Since the proximity of the house to the cremation ground is considered to be inauspicious as per popular Hindu belief which is another important factor due to which the appellant/complainant has not been able to construct her plot. The appellant/complainant has alleged that though she has made several visits to the office of respondents/O.Ps. namely, HUDA and Estate Office, HUDA apprising them about the difficulties faced by her in the construction of the plot on account of above stated factors but the respondents/O.Ps. have not taken any steps whatsoever to remove the above mentioned infirmities consequent to which the present complaint was filed.
3. The second main grievance of the appellant/complainant pertains to the total price charged by the respondents/O.Ps. The contention of the appellant/complainant is that in the statement of accounts furnished to the appellant, the outstanding amount of Rs. 1,27,073/- was shown against her plot though as per her version the total consideration stands paid up by her. The appellant has alleged that while preparing the statement of accounts, certain facts, very material to her case, have been ignored by the respondents/O.Ps. The appellant has alleged that the compound interest @ 18% has been charged which actually should be simple interest @ 10% only as per Clause 6 of the allotment letter. Further, this slab of 18% compound interest has been charged on delayed instalments prior to handing over physical possession of the plot. To support her point the case of Aruna Luthra v. State of Haryana, 1997 (2) PLJ Page 1, whereby the law laid down by Honble Court was to the effect that HUDA cannot charge interest @ exceeding 10% p.a. The same judgment of High Court has even been upheld by the Honble Supreme Court as an SLP preferred by HUDA against the above mentioned judgment was dismissed by the Honble Supreme Court. So the appellant has stated that O.Ps. cannot charge interest at a rate higher than 10% that too, on the instalments deposited after offering the physical possession of the plot. The appellant has stated that the above rate of interest is discriminatory as other allottees are being charged @ 10% simple interest only and not compound interest @ 18% as is being levied in her case. The appellant has allegedly stated the same not only a deficiency in service and an unfair trade practice but has termed it to be a contempt of Court and has prayed to get exceess amount charged refunded from the respondents/O.Ps.
4. The appellant has also cited the case of similarly situated plot No. 223, Sector 1, Part-I Shahbad Markanda wherein the allottee of the same who pursued his case in Consumer Disputes Redressal Forum Kurukshetra wherein the Forum had directed the HUDA authorities to hand over possession of the plot after doing the necessary earthwork for filling low-lying areas. The appellant has further alleged that the money deposited by her is lying blocked and she is neither enjoying the benefits of owning a plot nor has got the value of the money. She has further alleged that after running from pillar to post, she has suffered due to inaction and negligence on the part of the respondents/O.Ps. and has prayed to be compensated by the respondents/O.Ps. for the above deficiency in service. In the prayer clause she has requested the grant of the following reliefs :
(i)Â direct the O.Ps. to allot an alternative plot in lieu of plot No. 242, Sector-1, Part-I, Shahbad;
(ii) direct the O.Ps. to pay interest on the amount deposited by her at the rate of 18% per annum from the date of deposition of the amounts till the date of offering of the alternative plot;
(iii) direct the O.Ps. to pay escalation charges amounting to Rs. 3 lacs;
(iv) direction to the respondents/O.Ps. to charge simple interest @ 10% on the delayed payment of instalments from the date of offering of physical possession of the plot and not before and beyond that and in case amount deposited by her is in excess, the same be directed to be refunded with interest @ 18% p.a. from the date of deposit till the date of refund;
(v)Â direct the respondents/O.Ps. to pay Rs. 30,000.00 on account of mental agony and harassment;
(vi) direct the respondents/O.Ps. to pay the litigation expenses amounting to Rs. 5,000/- in addition of any other relief which may be considered appropriate in the facts and circumstances of the case.
5. In reply filed by the respondents/O.Ps. the preliminary objections have been raised. The first plea on the point is that the complainant is not covered within the definition of consumer as given in the Consumer Protection Act, 1986, hence the complaint is not maintainable. The respondents/O.Ps. have also averred that the plot in question is situated in Shahbad Markanda (Haryana) which is outside the jurisdiction of the Consumer Disputes Redressal Agencies situated at Chandigarh. Hence the Forum and Commission in Chandigarh have no jurisdiction to entertain the same as the case falls within the area of Consumer Disputes Redressal Forum, Kurukshetra. Further the plea of limitation as envisaged under Section 24(a) of the Consumer Protection Act, 1986 has been raised and it has been prayed that the complaint be dismissed on that count as well. The respondents/O.Ps. have also averred that the appellant/complainant has concealed the material facts and consequently she is not entitled to any relief. It has been averred that the plot in question was originally allotted in favour of Pushpa Kataria (Annexure C-1) and the area as well as the costs of the plot both were tentative. The appellant/complainant was allowed the transfer of her plot and the same was re-allotted in her favour through re-allotment letter dated 11.3.1991 (Annexure C-2). The respondents/O.Ps. have further averred that after the due development of the area the possession was offered to the appellant on 31.3.1993, relevant provisions applicable to her have been given in Annexure C-2. The respondents/O.Ps. have averred that the appellant deliberately did not take the possession. In fact no site plan has even be submitted, which clearly demonstrate her intention of not constructing the said plot. Further, the respondents/O.Ps. have alleged that the appellant/complainant is a defaulter as the amount of Rs. 1,27,073/- (subject to audit) is outstanding against her till January, 2000. The details of statement of accounts have been brought on record vide Annexure C-4. The respondents/O.Ps. have also denied the allegations of appellant/complainant regarding the proximity of the cremation ground near the plot of the appellant. The respondents/O.Ps. have submitted that the cremation ground though not very near the appellants plot yet a boundary wall has been constructed by HUDA on its own. The respondents/O.Ps. have alleged that this material fact has been concealed by the appellant consequent to which she is not entitled to any relief whatsoever. Further, since the appellant has not come to this Commission with clean hands, she does not deserve any relief.
6. On merits, the respondents/O.Ps. have admitted the factum of re-allotment of plot in favour of the appellant/complainant. The respondents/O.Ps. have reiterated their stand that it is the appellant/complainant who never intended to get the possession of the plot and this false complaint has been filed by her. The Nullah is not very near the plot and this area is not as low lying as has been alleged by the appellant/complainant. Further, the respondents/O.Ps. have averred that as per Condition No. 17 of Annexure C-1, the HUDA is not responsible to do the necessary earthwork and the allottees are bound to take the possession of uneven sites even, if any. The respondents/O.Ps. have further denied the allegations of the appellant that she has been subjected to pay arbitrary interest. The respondents/O.Ps. have cited that as per the Clause 19 of re-allotment letter, HUDA has right to charge interest @ 18% p.a. on the defaulting amounts. The respondents/O.Ps. have denied the allegations of deficiency in service on their part and rather have alleged that the complaint is false and the same is liable to be dismissed under Section 26(A) of the Consumer Protection Act. The respondents/O.Ps. have further stated that the alternative plot cannot be allotted to the appellant/complainant as prayed for because the original plot is clear and the respondents/O.Ps. are ready to deliver the possession. The respondents have further stated that there is no provision in HUDA Authority Rules about allotment of plot in exchange in another Sector whereas the plot of the complainant is itself clear.
7. The appellant/complainant has also filed a replication wherein she has reiterated most of the pleas taken in the complaint. It has been specifically averred that she is a consumer of respondents/O.Ps. Therefore, the complaint is very much maintainable. To the plea of lack of jurisdiction, the appellant/complainant stated that since the O.P. No. 1 is having its office at Chandigarh, the Consumer Disputes Redressal Agencies at Chandigarh are competent to entertain and try the present complaint. To the plea of limitation the appellant has submitted that since she has not been allotted an alternative plot by the respondents/O.Ps., the cause of action is continuing hence the complaint is maintainable and not at all barred by limitation. She has further submitted that it is wrong allegation on the part of the respondents/O.Ps. that she does not intend to construct the house rather she has averred that the presence of Nullah and proximity of the cremation ground are the two factors due to which she has not been inclined to construct her plot. She has further averred that regarding the rate of interest, she is to abide by the clauses of the allotment letter and not by the case-law as cited by the respondents/O.Ps. in their reply. According to the allotment letter she can be charged 10% simple interest but 18% compound interest is being levied in her case by the respondents/O.Ps. The allegations of any mis-representation or concealment of any material fact has been vehemently denied and the opposite parties have been called upon to furnish strict proof to their averments to this effect. The appellant has further submitted that the O.Ps. by incorporating some Rules/Conditions/Clauses cannot get licence to do wrong things. The respondents/O.Ps. are under legal obligations for developing and allotment of plots subsequent to developing the land she has further denied the allegations that she is a defaulter in paying the amount of Rs. 1,27,073/- as she has not been supplied the statement of accounts, earlier to enable her, to pay the amount due to her if any.
8. The respondents have brought on record the affidavit of Mr. N.S. Banger, HCS, Estate Officer, HUDA, Kurukshetra wherein the deponent has questioned the maintainability of the complaint and has denied the allegations of deficiency in service on their part and has submitted that the complaint be dismissed. The appellant, Mrs. Inder Prabha has also filed an affidavit wherein she has referred to the various annexures produced on record as part of affidavit. She has also deposed that in case the alternative plot of 10 marla size is not available as claimed by her she does not have any objection in case a plot of bigger or smaller size is allotted to her.
9. An application dated 11.2.2000 moved by the appellants Counsel stating that Plot Nos. 758-P and 759-P measuring 8 marlas each in the same area (Sector-1, Part-I) were lying un-allotted and she would have no objection if either of these two plots is given to her. The respondent/opposite party on 7.11.2000 also confirmed that the above plots were unallotted till that date.
10. The District Forum has placed reliance on the case of HUDA v. Smt. Sarla, 1999 (2) CPC 110, and HUDA v. Smt. Sujata Gupta, 1999 (2) CPC 112, wherein in the cases of similar facts the Honble National Commission upheld the allotment of alternative plots and held the respondents/opposite parties guilty of deficiency in service on account of non-allotment of alternative plots to the complainant and charging of compound interest. The District Forum-II allowed the present complaint with costs of Rs. 1,100/- and the respondent/opposite parties were directed toâ
(i)Â allot alternative plot preferentially Plot Nos. 758-P and 759-P, Sector-1, Part-I (actually it should be 758-P or 759-P as it seems to be a typographical error);
(ii)Â re-calculate the amount so found due from the complainant particularly by avoiding the inclusion of compound interest;
(iii) the revised demand/allotment letter be issued to the complainant within one month.
Aggrieved against the above order of District Forum, the complainant Mrs. Inder Prabha has filed appeal (No. 39 of 2001) under Section 12 of Consumer Protection Act, 1986. The main ground taken by the appellant is that the District Forum has not awarded any compensation to her on account of the fact that the construction of the plot could not be started by the complainant due to a Nullah flowing nearby and a cremation ground situated in the vicinity of the appellants plot. The appellant has assailed the impugned order on the ground that though held deficient in services, the District Forum has not taken into account her other prayer i.e. the escalation in the costs of construction amounting to Rs. 3 lacs as this would be the amount she will have to spend due to deficient services rendered to her by the respondents/opposite parties. Further, the District Forum has not appreciated the appellants prayer regarding compensation on account of mental agony and harassment due to deficient service of respondents/O.Ps. She has also stated that District Forum-II has not appreciated the facts of her case as she is liable to pay interest @ 10% as per Clause 6 of the allotment letter. However, she has been imposed compound interest @ 18%. She has prayed to modify the impugned order to that effect. The appellant has also prayed to be awarded interest @ 18% on the amount deposited by her from the date of deposit till the date on which the alternative plot is offered to her. The appellant has further brought it on the record of the appeal that no alternative plot has been offered to her till the date of filing of appeal inspite of the clear direction of the District Forum to that effect in the impugned order dated 11.12.2000.
11. A cross appeal bearing No. 55 of 2000 has also been filed by HUDA wherein, inter alia, the cross appellant has contended that the order of the District Forum-II directing the cross appellant (HUDA) to allot an alternative plot is erroneous and no such relief can be granted under the Consumer Protection Act. The impugned order of the District Forum-II has also been assailed on the ground that the implementation of the same relating to grant of alternative plot would set a bad precedent of applicants being given the liberty to pick and choose the plots which would result in practical difficulties and utter chaos for the authorities of bodies like the appellant (HUDA). The appellants have further submitted that the plot in dispute was neither very low lying nor too close to the cremation ground as has been alleged by the complainant in this case, because had the position being actually so, the other allottees of the same locality/area would have agitated the same matters before the appropriate authority and would have objected to take possession of their respective plots on the same ground, which has not been done. The order of the District Forum-II has also been assailed on the ground that the District Forum-II has in the impugned order directed the HUDA authorities to allot either 758-P or 759-P, Sector 1, Part-I, Shahbad which are the preferential plots while the plot No. 242, Sector 1, Part-I allotted to Mrs. Inder Prabha belongs to the different/separate category. The appellant has further contended that the possession was offered to her way back on 31.3.1993 and it was complainant who neither took possession nor offered any site plan which is indicative of the fact that she does not want to raise any construction on the plot allotted to her.
12. The appellant (HUDA) has also submitted that the complainant had taken the plot on re-allotment, hence, the situation/location of the plot and its advantages/dis-advantages were in the knowledge of the complainant. The appellants referred to Clause 17 of the allotment letter and Clause 11 of the re-allotment letter wherein it has been clearly stated that the appellants (HUDA) are not responsible for uneven sites, if any. The plea of limitation under Section 24-A has also been taken in the grounds of appeal. Another point agitated by the appellant is that though the District Forum-II has held the complainant liable to pay interest @ 18% on the delayed payment, yet the order of the District Forum-II insofar as it directs the appellant (HUDA) to re-calculate the amount by excluding the compound interest is not based on correct appraisal of clauses governing the case of the complainant as given in the Clause 19 of re-allotment letter.
13. We have heard the learned Counsel for the appellant, Mr. D.K. Singal, Advocate and the learned Counsel for the respondents, Mr. Aman Chaudhary, Advocate. Record of the complaint case was summoned from the District Forum-II. We have carefully perused the record and the documents placed on the file of the complaint case.
14. The learned Counsel for the appellant contended that this is well established in law that unless a possession of the plot is given, interest cannot be charged. Moreover, as per para 6 of the allotment letter, the interest @ 10% is to be charged, whereas the compound interest @ 18% has been charged for the delayed payment of instalments. This has further been argued that the allegation that the appellant/complainant is defaulter in paying amount of Rs. 1,27,073/- is without any base and no statement of account had been given to her. It has been further contended by the learned Counsel for the appellant that the re-allotment plot is in the low-lying area and is next to the cremation ground, which is obviously not suitable for living because of Hindu sentiments attached to such area. The learned Counsel for the respondents, on the other hand, contended that the appellant/complainant is not an original allottee of the plot which has been re-allotted to the appellant/complainant. She was offered the possession of the plot on 31.3.1993. The appellant/complainant deliberately did not take the possession of the same. The learned Counsel for the respondents has further alleged that the appellant/complainant is a defaulter of Rs. 1,27,073/- which is outstanding against her till January, 2000. In view of this there is no deficiency in service on the part of the respondents and the appeal be dismissed on that count.
15. Regarding the plea of HUDA for want of territorial jurisdiction since the Chief Administrator, HUDA has its office in Chandigarh in Sector 18, the Consumer Disputes Redressal Agencies at Chandigarh are invested with jurisdiction to proceed with the case. Further the plea of limitation, since not pressed in the trial Forum cannot be taken up in appeal. So far as the contention of the learned Counsel for the appellant - HUDA regarding the District Forum-II wrongly issuing a direction to allot specifically Plot Nos. 785-P and 759-P, Sector-1, Part-I, Shahbad is concerned, we may point out that the direction contained at Serial No. 1 of the order of the District Forum-II is primarily for allotment of alternative plot to the complainant and the same is qualified by the words âPreferably Plot Nos. 758-P and 759-P, Sector-1, Part-I, Shahbadâ. The addition of these words in direction (i) to allot alternative plot to the complainant. In other words, the discretion is still with the appellant - HUDA to consider allotment of the aforesaid plots and the same is not mandatory and obligatory on the part of HUDA. Therefore, we find no substance in the submissions of the learned Counsel for the appellant-HUDA. So far as the direction contained in Para (ii) is concerned, the recalculation of the amount is to be made and the compound interest cannot be charged from the complainant as the same is too harassing a provision and it goes against the interest of the consumer.
16. Regarding the appeal of Mrs. Inder Prabha, it may be pointed out that since the appellant/complainant has been seeking the allotment of alternative plot as the main relief hence the escalation in the cost of construction is not material to the case and the District Forum-II was justified in the facts of this case in not burdening the O.Ps. (HUDA) with any escalation costs. Further as per Clause 19 of re-allotment letter (Annexure C-2) governing her case she is liable to pay 18% interest on instalments and 15% interest on enhancement if not received in time. The District Forum-II has justifiably turned down the appellants (Mrs. Inder Prabhas) plea for charging 10% interest. The appellant/complainant cannot be allowed to be governed partly by the rules of allotment letter (Annexure C-1) and partly by the rules of re-allotment letter (Annexure C-2) to gain advantage in her favour.
In view of the foregoing discussion, we are of the considered view that deficiency in service on the part of respondents/O.Ps. is patently established and we do not find any infirmity with the order of the District Forum-II. Consequently, the order of the District Forum-II is upheld and the appeal is dismissed.
The cross appeal bearing No. 55 of 2001 filed by HUDA is also dismissed on the grounds mentioned above.
Copy of the order be supplied to the parties free of charges.