National Consumer Disputes Redressal
Mohan B. Lall vs Maharashtra Housing And Area ... on 12 December, 2003
Equivalent citations: I(2004)CPJ43(NC)
ORDER
B.K. Taimni, Member
1. The appellant, Shri Mohan B. Lall has filed this appeal against the respondent Maharashtra Housing and Area Development Authority (MHADA) and others alleging deficiency in service on the part of the latter.
2. The undisputed fact of the case are that the appellant in reply to an advertisement in a newspaper, applied for allotment of a tenement under Higher Income Group Scheme tenements at Bandra Reclamation (West) in September, 1986. The appellant got an acknowledgement from the respondent No. 1 informing the appellant that his application, in the reserved category of artist, for allotment of a tenement has been accepted. As a result of draw of lots held on 3.2.1987, the appellant was placed at fourth place of successful applicants. By a letter dated 25.5.1987, the appellant was asked by the respondent No. 1 to provide a certificate from the Cultural Affairs Department of Government of Maharashtra, which was obtained and given over to the Competent Authority by the appellant on 10.6.1987. He also filed an appeal before the Appellate Officer of MHADA by order dated 27.8.1987. It was held by the appellate Officer that the name of the appellant should be entered in the list of eligible applicants to be exhibited in the Board's office. For allowing the Appeal, the reason stated was that appellant had made available certificate from the Director of Cultural Affairs, Bombay. In the meantime the appellant also obtained another certificate from Director, Cultural Affairs, Government of Maharashtra and submitted this to the respondent No. 1 on 8.6.1988. It is on 13.1.1988 a contention was also made by the appellant before MHADA Authorities that having fulfilled all the requirements for allotment of a tenement under the scheme he has not been allotted one.
3. Several representations were made in October 1988 by the appellant to MHADA pressing for early allotment as he has completed all the formalities and meets the requirements of an artist for allotment of tenement under the reserved category. It is from here that the case takes a twist. Vide letter dated 5.10.1988 the Secretary, Housing and Special Helping Department of the Government of Maharashtra issued directions to the Director, Cultural Affairs, Government of Maharashtra, laying down for the first time, guidelines for the latter to be observed by him before issuing a certificate whether a person is an 'artist' eligible for the purpose of allotment of plots of MHADA. This letter also stated that all 'pending' matters and matters coming henceforward should be decided by the same guidelines. Based on this letter MHADA did not take any further action for allotment of the tenement to the appellant. Agitated by this approach the appellant made several representations to the respondent No. 1 as also to the several other Departments in the Government, but to no avail. Feeling aggrieved and dissatisfied by non-action on the part of the respondents the appellant filed a writ petition before the Bombay High Court praying for quashing of orders dated 5.10.1998 through which the Department of Housing and Special Helping had laid down guidelines for determining whether a person is an artist for the purpose of eligibility of allotment of a plot by MHADA. The Hon'ble Bombay High Court passed minutes of order the relevant portion of which is as follows :
"4. If the Director of Culture holds in favour of any of the petitioners, the allotment of tenement shall be made by MHADA and MHADA will take further steps for completion of the handing over of the tenements.
5. Until the decision is taken by the Director of Cultural Affairs, 4 tenements shall be kept vacant, as done hereinbefore under the orders of this Hon'ble Court. Director shall decide the matter within 8 weeks from this order."
4. As a sequel to this order, the appellant again approached the Department of Cultural Affairs of the State Government who vide its letter dated 27.9.1994 declared the appellant to be an artist, as a result of which vide letter dated 7.12.1994, the appellant was issued an allotment letter asking for Rs. 10,52,171/- against the original cost of being Rs. 4,82,500/-. The appellant deposited this amount by 13.12.1994 and the possession of the house was given on 14.12.1994. On 26.12.1994 the appellant served legal notice to respondent claiming refund of the difference of amount, i.e., between Rs. 10,52,171/- paid by the appellant and Rs. 4,82,500/- being the original price of the tenement.
5. When no reply was forthcoming from the respondent, a complaint was filed by the appellant before the State Commission who after hearing the parties dismissed the complaint on the ground that they are not competent to accept the contention of the appellant as regards the fixation of price, etc. Aggrieved by this order the appellant filed this appeal before this Commission.
6. Arguments were heard at length. Since basic facts are not disputed we do not reproduce them. It is no doubt true that the appellant had applied under a declared scheme as per terms of brochure issued by the respondent No. 1. Information about allotment was also given to him which was never cancelled. What happened in between was that, despite appellant having completed all the formalities and meeting all the requirements as demanded from time-to-time by the respondent No. 1, the formal allotment of the tenement was never issued. This process seems to have been disrupted by the letter from the State Government dated 5.10.1998 laying guidelines on being accepted as Artist for purposes of allotment of tenements under reserved category of MHADA. After hearing the arguments and perusal of material on record we find that the crucial part of the letter dated 5.10.1988 reads as follows :
"You are requested to observe the above mentioned tests before issuing a certificate that a person is an Artist for the purpose of eligibility for allotment of plots by the Maharashtra Housing and Area Development Authority. All pending matters and matters coming hence forward should be decided by above tests."
The critical words are "all pending matters sand matters coming henceforward...."
7. Perusal of the material on record makes it clear that it does not fall under the wording "matters coming henceforward". In our view it cannot also said to be a 'pending' matter as, based on repeated production of requisite certificates by a Competent Authority, i.e., the Director, Cultural Affairs of the State Government, the appellant had already been accepted as an 'Artist' within the term as it then prevailed. This particular point had been clinched much before the issue of letter dated 6.10.1988. His name had been included in the draw of lots, and being successful in it, his name was at priority number at 4. Hence, in no way this letter can have any bearing in the case of the appellant. The word "pending' needs to be seen in terms of declaring a person an 'artist' or otherwise. This particular aspect had already been decided more than a year ago by issuing more than one certificate as also by the Appellate Authority of Maharashtra, keeping in view the definition of artist prevailing at that time which was also backed by the certificate issued by Director, Cultural Affairs. The history repeated itself when as a result of direction of High Court the Director, Cultural Affairs once again in 1994 reiterated his decision of the appellant being an 'artist' within the definition now enunciated by the State Government.
8. The only argument raised by the learned Counsel for the respondent is that the respondent has rightly charged interest and other charges applicable in 1994, since no payment had been made by the appellant except Rs. 1,000/- deposited by the appellant at the time of purchase of brochure, whereas other person in the same area had made full payments of Rs. 4,82,500/- in 1988. The tenements were completed in 1988 and had the appellant paid full amount in 1988, perhaps there would have been some justification for not demanding interest for the interregnum period. But in this case since no amount was paid till 1994, hence no relief can be given to the appellant by way of charging the price of 1988.
9. We have seen the material on record and find that despite everything being in favour of the appellant and the allotment never having been cancelled, at no stage the respondent had raised any demand or schedule of payment from the complainant to give him opportunity to pay. To the contrary in our view complaint was treated rather shabbily when he was made to run from pillar to post and forced finally to seek the relief from the Bombay High Court. In our view, no material has been produced on record or has been shown to us by the respondent to state that any demand was raised prior to 5.10.1988 for payment which was not honoured by the appellant.
10. Our attention was also drawn by the learned Counsel for the respondent towards the fact that the High Court never quashed the letter dated 5.10.1988, hence respondent was correct in withholding allotment pending clearance from the State Government. Respondent is correct to the extent that Hon'ble High Court passed no order on the said letter dated 5.10.1988, but it is also true that O.P. did not stir even a bit after putting the appellant's name at 'Priority-4' and did not take any action to allot a tenement to him, as if they were waiting for something to happen to not to allot a tenement to the appellant. Letter dated 5.10.1988 has been used to protect/cover up their deficiency. Nothing prevented them to allot the tenement for almost an year before receipt of this letter. Deficiency on the part of respondent is writ large.
11. In our view the non-allotment of the tenement after having met all the requirements and demands of the respondents, itself is a clear case of deficiency in service and not having raised demand for any money at any stage does not give them any ground now to charge interest and other charges by way of addition to the original cost of Rs. 4,82,500/-. If there is any party who is at fault, it is the respondent No. 1 and no one else. In our view, the State Commission erred in not deciding the case on merits. It was very much within their competence to do so. We find no merit in the appeal. The order of the State Commission is set aside. This appeal is allowed and the respondents are directed to refund the excess amount of Rs. 5,68,671/- alongwith interest of 9% from 14.12.1997 till the date of payment alongwith cost which we fix at Rs. 5,000/-.