National Consumer Disputes Redressal
U.P. Avas Evam Vikas Parishad vs Kamla Srivastava Through Lrs. on 26 October, 2021
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1458 OF 2010 (Against the Order dated 05/11/2009 in Appeal No. 1912/2002 of the State Commission Uttar Pradesh) 1. U.P. AVAS EVAM VIKAS PARISHAD Through Housing Commissioner, 104, Mahatma Gandhi Marg Lucknow Uttar Pradesh ...........Petitioner(s) Versus 1. KAMLA SRIVASTAVA THROUGH LRs. R/o. H. No. A-123/7, Double Story, Kamla Nagar Agra Uttar Pradesh 2. LOKENDER SINGH BAGHEL . 3. PREM VIR SINGH . 4. SATYA VIJAY . 5. SATYA VIR . ...........Respondent(s)
BEFORE: HON'BLE MR. DINESH SINGH,PRESIDING MEMBER HON'BLE MR. JUSTICE KARUNA NAND BAJPAYEE,MEMBER For the Petitioner : Mr. Vishnu Sharma, Advocate For the Respondent : Mrs. Manju Sharma, Advocate Dated : 26 Oct 2021 ORDER Taken up through video conferencing.
1. This petition has been filed under section 21(b) of The Consumer Protection Act, 1986 in challenge to the Order dated 05.11.2009 of The State Consumer Disputes Redressal Commission in appeal no. 1912 of 2002 arising out of the Order dated 23.03.2002 of The District Consumer Disputes Redressal Commission in complaint no. 596 of 2000.
2. We have heard the learned counsel, and perused the material on record including inter alia the complaint, the written version, the District Commission's Order dated 23.03.2002, the State Commission's impugned Order dated 05.11.2009 and the petition.
3. Chronological facts of the case, relevant for the purpose of disposing the petition, are recapitulated below.
In 1975 the respondent complainant was allotted a house constructed on an area of 33 sq. m. under a scheme for the economically weaker sections (E.W.S. category) by the petitioner housing & development board, possession thereof was handed over to her, registration thereof was executed. It appears that the petitioner managed to gain occupation of adjoining land admeasuring 64.15 sq. m. In 1979 some correspondence took place in which the cost of the adjoining land was indicated at Rs. 62/- per sq. m. Then in 2000 some correspondence again took place in which the cost of the adjoining land was indicated at Rs. 2300/- per sq. m. The complainant sent a draft of Rs.8988.70p. calculating the cost of the land at the earlier rate of Rs. 62/- per sq. m. plus interest at the rate of 6% per annum to the housing & development board. The board returned the draft to the complainant. It asked for an amount of Rs. 1,82,340/- based on the rate of Rs. 2300/- per sq. m. prevailing in 2000.
The complainant went before the District Commission. The District Commission vide its Order of 23.03.2002 ordered the housing & development board to allot the adjoining land admeasuring 64.15 sq. m. at the rate of Rs. 62/- per sq. m. with interest at the rate of 12% per annum. It also awarded Rs. 3000/- as cost of litigation. The board appealed before the State Commission. The State Commission vide its impugned Order of 05.11.2009 dismissed the appeal. It enhanced the cost of litigation to Rs. 5,000/-. The housing & development board preferred revision before this Commission in 2010.
4. The complainant had been allotted a house in the E.W.S. category constructed on 33 sq. m. in 1975. There is no dispute on this count, possession of the house was delivered, its registration was executed. But the dispute in fact relates to adjoining land admeasuring 64.15sq. m.
5. Here it may first be observed that the housing & development board is a government development authority, it works ( / is required and expected to work) as per the prescribed administrative, financial and technical rules laid-down by the government, its accounts are subject to audit, its officials are accountable.
Needless to elaborate that cost of land and construction of house is subsidized for the economically weaker sections (E.W.S. category). Benefit of allotment under the E.W.S. category for a house constructed over 33 sq. m. had been provided to the complainant. As already stated above there is no dispute on this count per se.
6. The dispute is in respect of the adjoining land admeasuring 64.15 sq. m. The complainant has averred that she was in occupation of the said adjoining land in 1979 (in para 7 of her complaint she has stated that "in pursuance of" a letter dated 23.11.1979 of the housing & development board she had constructed a boundary wall on the adjoining land for "security purposes"). However in para 8 of its written version the housing & development board has categorically stated that treating the letter dated 23.11.1979 as an "allotment decision is wrong". In any case, it is an admitted fact that no consideration for the adjoining land admeasuring 64.15 sq. m. was paid by the complainant to the board in 1979. As such there could have been no question of the board having allotted the adjoining land to the complainant or for that matter to have "permitted" its use.
7. It is manifestly clear that the complainant was in fact in illegal occupation of the adjoining land. Some correspondence took place in respect of the cost of this land in 1979. At that time no consideration at the then prevailing rate of Rs. 62/- per sq. m. was paid by the complainant to the housing & development board. More importantly, in the absence of having received any consideration, there could have been no occasion for the board to "permit" use of the land or to allot it to the complainant. It appears that after managing illegal occupation the complainant ill-used the same as an opportunity and contrived to revive the matter in 2000. She suo motu sent a draft of Rs.8988.70p. to the board as being the cost of the adjoining land at the rates prevalent in 1979 with a self-determined rate of interest of 6% per annum. But the board refused to accept the same and returned the draft. Further correspondence took place in 2000 in respect of the then prevailing rate of Rs. 2300/- per sq. m. However it transpires that the complainant did not pursue further the opportunity to obtain legal allotment at the then prevailing rate of Rs. 2300/- per sq. m. and to get the matter legitimised. As such no consideration for the adjoining land was paid even in 2000.
8. By definition a 'consumer' is a person who hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised ('housing construction' falls under 'service') [section 2(1)(d)(ii) and section 2(1)(o) of the Act 1986 refer]. It does not readily connote or signified a person who manages to gain illegal occupation over a potential service provider's land and is attempting anyhow for the regularisation of the illegal occupation by attempting to pay consideration at a 21-year prior rate of the cost of land making it self-applicable on her with interest at a rate again self-determined by herself.
In not having been paid or having accepted any consideration for regularisation of the illegal occupation (as it was not a bonafide allotment of the adjoining land) in 1979 or by not accepting any consideration for regularisation in 2000 in the way and manner and on the terms the complainant suggested or attempted, the housing & development board cannot be accused of or be liable for any 'deficiency in service' or 'unfair trade practice' under the Act 1986.
It bears significance that the allotment of the house constructed over 33 sq. m. under the E.W.S. category (in 1975) and the regularisation of illegal occupation over the adjoining land admeasuring 64.15 sq. m. (in 1979 or in 2000) are two distinct and separate issues, the latter cannot be treated as conjoined or connected with the former in adjudging 'deficiency in service' or 'unfair trade practice'.
And, though this appears to be a distinctive case having its own facts and specificities, it may also be observed here that there is nothing on record to show that the complainant has in any manner been discriminated against or differently treated from other similarly situate persons.
9. As such both the fora below have arrived at patently perverse findings with erroneous appreciation of the facts and the law.
The impugned Order of the State Commission cannot sustain.
10. The petition is allowed. The Order dated 05.11.2009 of the State Commission is set aside. The complaint is dismissed.
11. The Registry is requested to send a copy each of this Order to all parties in the petition and to their learned counsel as well as to the State Commission and the District Commission within three days. The stenographer is requested to upload this Order on the website of this Commission immediately.
...................... DINESH SINGH PRESIDING MEMBER ......................J KARUNA NAND BAJPAYEE MEMBER