State Consumer Disputes Redressal Commission
The Cuttack Development Authority, vs Kanhu Charan Nayak, on 17 March, 2023
STATE CONSUMER DISPUTES REDRESSALCOMMISSION,ODISHA,CUTTACK
FIRST APPEAL NO.144 OF 2014
(From an order dated 11.02.2014 passed by the District Forum,
Cuttack in C.C. No. 208 of 2011)
Cuttack Development Authority
Represented through its Secretary, At- Arunadaaya
Bhawan, Link Road, Town and District Cuttaack
... Appellant
Vrs.
1. Kanhu Charan Nayak,
S/o. Nrusingha Nayak,
Village-Puruna Tigiria,
P.O./P.S.Tigiria, Dist. Cuttack
2. Vice-Chairman,
Cuttack Development Authority,
Arunadaya Bhawan, Link Road,
Cuttack
3. Estate Officer, C.D.A.,
Arunadaya Bhawan,
Link Road, Cuttack
... Respondents
____________
For the appellants: M/s D. Mohapatra & Associates
For the respondents: M/s S.K.Mandal & Associates
____________
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P R E S E N T:
THE HON'BLE DR. JUSTICE D.P.CHOUDHURY, PRESIDENT,
DR.P.K.PRUSTY, MEMBER
AND
MISS S.L.PATTNAIK, MEMBER
DATED THE 17th MARCH, 2023
ORDER
DR. D.P. CHOUDHURY J., PRESIDENT Captioned appeal is filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the 'Act'). Parties to this appeal shall be referred to with reference to their respective status before the District Forum.
PLEADINGS
2. The factual matrix leading to the case of the complainant is that the opposite party floated a brochure namely, 'Cuttack Development Project' for allotment of plot in Abhinaba Bidanasi, Kattaka. The complainant being desirous of having residential plot applied for a 'F' type plot in Sector-12 on 15.03.2001 of payment of process fee of Rs. 500/- and made initial deposit of Rs. 20,500/-. After scrutiny, the opposite party no.3 issued a 3 letter to the complainant on 16.07.2003 to remain present on the date of lottery system to be held on 26.07.2003. The complainant remained present at the time of lottery and plot no. F/3767 was allotted to the complainant. It is alleged inter alia that till filing of this case, the opposite party neither handed over the possession of the said plot nor accepted the entire money from the complainant, but played hide and seek with the complainant. Therefore, the complainant filed the complaint showing deficiency in service on the part of opposite parties.
3. The opposite party filed the written version stating that complainant is not a consumer and the learned District Forum lack jurisdiction to entertain the consumer complaint. The plea of the opposite party is that they had formulated a plotted development scheme commonly known as ' Bidanasi plotted development scheme'. They also admit that brochure was issued in the year 2001 and the complainant had applied for a 'F' category plot on 15.3.2001 by depositing Rs.20000/- towards initial deposit amount and Rs. 500/- towards the processing fee. 4 They have also admitted that the complainant's application along with other documents were processed and the complainant was informed on 16.07.2003 that the lottery would be drawn on 26.7.2003 and accordingly, the lottery was drawn and the complainant was allotted 'F' category plot no. F/3767.
4. It is the further plea of opposite party that on 21.12.2006, the complainant was informed about the enhancement of the price of the plot and sought for the willingness within 15 days to know whether the enhancement cost is acceptable to him or not. The Complainant did not respond to such letter of the opposite party. The opposite party finding no other way cancelled the allotment of the plot vide letter dated 23.6.2008 and accordingly intimated to the complainant with a request to apply for refund of his initial deposit amount. The complainant long after that issued letter 25.2.2010 to revoke the cancellation on the ground that he has not received the letter dated 21.12.2006 and 23.6.2008 as he was not staying in his present address for correspondence. The opposite party took further 5 pleas that since the allotment has been cancelled, question of allotment of plot demanding of rest dues and giving possession of the plot in favour of the complainant do not arise. So, there is no deficiency in service on their part.
4. After hearing both the parties, learned District Forum passed the following order:--
xxxxx xxxxxx " The consumer complaint no. 208 of 2011 be and is hereby allowed on contest.
(i) The Opp. Parties are directed to allot one 'F' category plot either in Sector-12 or 13 out of the vacant 39 plots in favour of the complainant who is a senior citizen at the revised cost of Rs.
1,10,400/- on outright purchase basis within 30 days or receipt of our order.
(ii) The complainant is directed to deposit the revised cost minus all the deposit if any, he had already made as will be intimated by the Opp.
Parties in writing to the complainant at his permanent address with 30 days thereafter.
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(iii) The Opp. Parties are directed to pay Rs. 5000/-
towards cost of litigation to the complainant within 30 days. This cost shall be recovered from the erring officers/officials of the Opp. Parties proportionately for their deliberate laches and negligence as per the decision of the Hon'ble Supreme Court in Lucknow Development Authority Vrs. M.K.Gupta reported in AIR 1994 SC 787.
(iv) We record our appreciation for the co-operation and assistance rendered by the learned counsel of C.D.A. Mr. Sibananda Mohanty and Law Officer of C.D.A. Mr Jnanendra Prasad Samal in deciding this complicated matter."
xxxxx xxxxx SUBMISSIONS
5. Learned counsel for the appellant submitted that learned District Forum has passed the impugned order without considering the plea of the opposite party and the material produced by the opposite party. According to him, the complainant did not give his willingness to accept the enhancement rate of plot and also did not deposit the enhanced 7 cost of the plot within the time frame for which they have cancelled the plot in accordance with the terms and conditions as mentioned in the brochure. He pointed out that as per Clause 6.1 the plots are to be allotted on drawing lottery and as per Clause 7.1 of the Brochure, plots shall be disposed of on long term lease basis against the full payment. In the event of default, allotment of plot would be cancelled and the amount deposited would be refunded with forfeiture of 25% of the initial deposit without interest on the deposited amount. In the instant case, the complainant did not respond to the letter dated 21.12.2006, as such they have cancelled the allotment of the plot on 23.6.2008.
6. Learned counsel for appellant referred to the Clause 13.8 by stating that the letter having despatched as per the address as assigned in the application form and once letter has been issued it would be presumed to have been delivered after reasonable time from the date of despatch. Since the opposite party had not received any change of address after despatch of letter on 8 21.12.2006 and the letters are presumed to have been received by the complainant who did not turn up to deposit the entire enhanced cost. Learned District Forum ought to have considered all these facts and law involved in this case. Learned District Forum should have applied judicial mind to the terms and conditions of the allotment and cancellation of the same. Therefore, he submitted to set aside the impugned order by allowing the appeal.
7. Learned counsel for the complainant-Respondent submitted that O.P. allotted the plot in the lottery, but they have not received any letter about the allotment of the plot with enhanced cost of the plot for which they could not give their reply. Moreover, he submitted that when the plot has been allotted, there is substantial right created with the complainant and without his consent, cancellation cannot be made. He submitted that cancellation of the plot is an unilateral act and as such cancellation cannot be binding on the complainant. Moreover, he submitted that the demand of enhanced rate of 9 cost being not in accordance with the terms and conditions of the Brochure, the demand of further cost with enhanced rate is also untenable in terms and conditions of the Brochure, as such, it is not binding on the complainant. When it is not binding, cancellation of the same even if made, is also not applicable to the complainant. He submitted that they have already informed the opposite party by letter dated 5.12.2001 by stating that the letter should be sent in his permanent address because he had left the place of correspondence after retirement on 30.6.2001. He challenged the letter of cancellation and requested to reconsider his allotment of plot on receipt of cost of the plot as demanded by opposite party. Therefore, he supports the impugned order and submitted to dismiss the appeal.
8. After hearing both the parties, in our opinion two issues emerged for consideration.
(i) Whether the complainant has proved the deficiency in service on the part of the opposite party?
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(ii) Whether the complainant is a consumer under the Act?
ANALYSIS ISSUE NO.I
9. We have considered the submissions of both the parties. We have gone through the pleadings. It is admitted fact that the opposite party have issued a brochure inviting applications from the applicants desirous of obtaining the plot on lease basis from the opposite party. It is also not in dispute that the complainant has applied for allotment 'F' category plot and accordingly, F- 3767 was allotted in the lottery to the complainant. It is also settled principle of the law that the complainant has to prove the deficiency in service on the part of opposite parties.
10. With reference to deposit of initial amount of Rs. 20,500/-, the complainant has proved the legal notice but the complainant has not proved any copy of the letter he sent on 5.12.2001 to the opposite party about his request to send correspondence to him under his permanent address in stead of corresponding address 11 as mentioned in the application form because he has since retired in the meantime. It is also revealed from his application form that he has given his option to purchase the plot on outright payment basis. During course of hearing of appeal, the complainant was asked to place copy of the same, but he could not produce the same. Thus, it is found that the complainant failed to establish that he has intimated the opposite party with regard to making correspondence in his permanent address.
11. The opposite party on the other hand has asserted the plea that they have sent the letter dated 21.12.06 with regard to enhanced cost of the plot which comes to Rs. 1,10,400/- and asked the complainant to give his willingness if at all he agreed for allotment of the plot on such terms within 15 days of the receipt of the letter. But if no option is received, then it will be presumed that he is not interested for the allotment of the plot and initial deposit would be refunded. Further, they proved the letter dated 23.6.2008 which shows that they have not received any option from the complainant and as such they cancelled the 12 allotment of the plot on 23.6.2008 itself. These two letters were despatched by registered post as per the version of the opposite party. On the other hand, the complainant refused to have received the letter dated 21.12.2006 as to deposit of enhanced cost of the plot concerned.
12. In order to find out the veracity of the complainant we have asked the opposite party to produce the despatch register. The Dak Despatch Register is produced and we find that vide serial no. 17009 dated 21.12.2006, letter was issued to the complainant in his Cuttack address. Detail address is not given in the Dak Despatch Register. Even if the address is not given, but when the Register is maintained in due course of business, we accept the said entry to be true address in which letter was sent to the complainant. The letter did not reach the complainant because he has left the place since 2001 as per contention of the learned counsel for the complainant. Since the addressee has left the place, the letter must be returned to the opposite party, but no such proof is available to know whether the letter returned or 13 not. Be that as it may, it appears the letter dated 21.12.2006 even if sent did not reach the complainant, thus it cannot be considered that the opposite party has intimated the complainant with regard to enhanced rate of cost of the plot.
12. The opposite party on the hand, after a long gap of 1 ½ years issued a letter of cancellation of the plot on 23.6.2008. That letter was sent to the complainant, but the complainant refused to have received such letter. When the complainant has left the place of his correspondence, obviously, the letter of cancellation did not come to his knowledge but he only came to know about the fact later in 2010 as per the complaint case. Thus, there is a communication gap absolutely between the parties with regard to the enhancement of the cost, non- payment of the cost and cancellation of the plot in question.
13. With regard to the factual aspect of cancellation as discussed above, we can go further to find out what should be the legal implication of such communication gap. In one hand, the complainant failed to prove his letter of change of 14 corresponding address and on the other hand, the opposite party has proved the Despatch of the letter by registered post. No doubt, as per Clause 13.8 of Brochure it is clear that once the letter is despatched by the opposite party, it is presumed to have been delivered to the addressee-complainant, but as discussed above, the letter has not reached the complainant because of absence in the desired place of stay. The said Clause 13.8 of Brochure has spelt about presumption of fact of delivery of letter and court may presume the fact but such presumption is rebuttable. In the instant case, this presumption has been rebutted by the facts that he has left place of correspondence since 2001 and as such did not reach the letter. It is also clear that no acknowledgement of letter is filed by O.P.
14. Besides, we find that the brochure in the first para has made it clear that the price of the plots indicated are provisional and the opposite party reserves the right of escalation of price of the plot which shall be binding on the applicant. So the price as mentioned in the letter dated 21.12.2006 is binding on the 15 complainant and the complainant is willing to pay the said price, but the brochure does not disclose whether the price escalated letter to the issue of brochure is again to be communicated and in the event of failure of the applicant to pay such cost, they reserves the right of cancellation of the plot allotted. It is true that there is a clause 7.1 which is as follows:-
"7.1 The plot shall be disposed off on long term lease basis against full payment. It will be obligatory on the part of the allottees to make the payments on or before the dates indicated in allotment-cum-demand letter. In the event of default, the allotment of plot will be liable to be cancelled and amount deposited would be refunded with forfeiture of 25% of the initial deposit without interest on deposited amount......"
The aforesaid clause clearly shows that issuance of letters as decided in the brochure as per clause 7.1 has to be deposited failing which allotment will be cancelled. Such clause never states that if the escalated cost is not paid, then it would amount to cancellation of the plot. The letter dated 21.12.2006 has endorsed the terms and conditions. But it was never brought 16 to the knowledge of the complainant as discussed above about the failure bringing such fact to the knowledge of the complainant. No doubt, escalation cost as demanded from the complainant was never brought to the notice of the complainant and hence the cancellation of the plot on such ground must be taken as unilateral one and as such, such cancellation is illegal and invalid.
15. In view of the above discussion, we are of the view that the cancellation of the plot being unilateral without basing on any option of the complainant, in the facts and circumstances, is a deficiency in service on the part of the opposite party. Thus, the complainant has proved the deficiency in service on the part of opposite party.
16. Learned District Forum while going through the impugned order though discussed the matter in a different manner as we have discussed above, but also came to the same conclusion that there is deficiency in service proved against the opposite party. Issue no. I is answered accordingly.
17ISSUE NO.II
17. The important issue with regard to whether the complainant is a consumer?
Section 2(d) of the Act, 1986 is as such.
(d) 'consumer' means any person who,-
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of ;such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned 18 person but does not include a person who avails of such services for any commercial purpose.
Explanation- For the purposes of this clause 'commercial purpose' does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self employment.
Section 2(o) is also relevant to quote.
2(o)- 'service' means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying a news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.
18. Here, the complainant has proved that he has applied and paid initial deposit of Rs. 20,500/-. It is also proved by the material on record that he has been allotted a plot no. F-3767. So when he has purchased the service on payment of initial deposit, he is covered under section 2(d) of the Act. Therefore, the complainant is a consumer under the Act.
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19. In view of the above discussion, we find that the complainant is a consumer and deficiency in service on the part of the opposite party is proved. Now, the question arises whether the complainant would get back his plot allotted or not. The Cuttack Development Authority has filed an affidavit stating that in the year 2010 when the complainant brought the matter of his non-allotment of the land, by then, all the vacant plots out of 39 plots have been allotted in Sectors 12 and 13 of CDA by e- auction or by usual process. When all the plots have been allotted even if cancellation of plot of complainant is illegal, the question of allotment of plots out of 39 vacant plots as directed by the learned District Forum does not arise. Rather, we modify the said portion of the order by directing the opposite party to allot one 'F' category plot instead of this F-3767 in any Sectors of the C.D.A. at the revised market rate on outright purchase or instalment basis without insisting the applicant to apply afresh within a period of 60 days from the date of receipt of this order and the initial amount deposited by the complainant be adjusted 20 against the cost of the plot concerned. Moreover, we have modified the operative portion of the impugned order by directing the complainant to deposit rest of the amount and if he is not willing to do so, the initial deposit of the same would be refunded by the opposite party with 9% interest from the date of deposit to the complainant within the above period. We further modify the operative portion of the impugned order by directing the opposite party to pay Rs. 5000/- (Rupees Five Thousand) towards litigation cost to the complainant within the above period, but the recovery of the said amount from the erring officers/officials of the opposite party proportionately for their deliberate laches and negligence should not be resorted to as under Section 14 of the Act, no such order can be passed by the learned District Forum.
20. With the above observation and direction, the appeal is disposed of.
DFR be sent back forthwith.
Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website 21 of this Commission to treat same as copy supplied from this Commission.
(Dr.D.P.Choudhury J) President (Dr.P.K.Prusty) Member (Miss S.L.Pattnaik) Member