National Consumer Disputes Redressal
Smt. Pushpa Goel vs Ghaziabad Development Authority on 22 January, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION No. 3832 OF 2014 (From the order dated 07.07.2014 in Appeal Nos. 1025/2012 & 1047/2012 of U.P. State Consumer Disputes Redressal Commission Lucknow) Smt. Pushpa Goel W/o Sri Ravindra Goel, R/o- KM-7, Kavi Nagar, Ghaziabad (U.P.) ... Petitioner Versus Ghaziabad Development Authority Through its Vice Chairman Vikas Marg, Ghaziabad (U.P.) Respondent AND REVISION PETITION No. 4570 OF 2014 (From the order dated 07.07.2014 in Appeal No. 1047 of 2012 of U.P. State Consumer Disputes Redressal Commission Lucknow) WITH IA/9155/2014 IA/9156/2014 IA/9157/2014 (STAY, CONDONATION OF DELAY, EXEMPTION FROM FILING TRANSLATION OF DOCUMENTS) Ghaziabad Development Authority Through its Vice Chairman Vikas Marg, Ghaziabad (U.P.) ... Petitioner Versus Smt. Pushpa Goel W/o Sri Ravindra Goel, R/o- KM-7, Kavi Nagar, Ghaziabad (U.P.) Respondent BEFORE HONBLE MR. JUSTICE V.K.JAIN, PRESIDING MEMBER HONBLE DR. B.C. GUPTA, MEMBER For Smt. Pushpa Goel : Mr. Arvind Kumar Garg, Advocate For GDA : Mr. Siddharth Sengar, Advocate DATED: 22.01.2015 JUDGMENT
JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL) I.A. No. 9156/2014 in R.P. No. 4570/2014 Heard.
For the reasons stated in the application, the delay in filing the revision petition is condoned. The application stands disposed of.
REVISION PETITION Nos. 3832/2014 & 4570/2014 The complainant, Smt. Pushpa Goel, applied for allotment of a plot from the opposite party, Ghaziabad Development Authority in the year 1984 and a plot measuring 465 sq. mtrs. was allotted to her at the price of Rs. 1,27,875/-. The complainant/petitioner deposited a sum of Rs. 1,03,623/- with the said Authority, in instalments. However, possession of the aforesaid plot bearing no. II-F/97 in Sector-2 of Nehru Nagar, Ghaziabad was not delivered to her. Vide letter dated 26.03.1990, the Authority informed the complainant that since the aforesaid land had been released from acquisition, it was not possible for them to give possession of plot no. II-F/97 to her. Her consent was sought for allotment of an alternative plot in some other colony, on availability basis. The complainant was also given an option to take back the money paid by her.
The aforesaid decision of the Authority was challenged by the complainant by way of writ petition before Allahabad High Court. As regards the offer of an alternative plot, the complainant, vide her letter dated 05.04.1990, requested that a vacant plot situated in Nehru Nagar near Kamla Gas Service could be allotted to her on the terms and conditions of the previous allotment. Vide letter dated 09.06.1992, the Authority allotted a plot measuring 461 sq. mtr. in Lajpat Nagar to the complainant.
She was informed that the site plan and the payment schedule was being separately issued to her.
2. Vide letter dated 28.10.1996, the Authority required the complainant to deposit a sum of Rs. 1,76,880.80 on the ground that the price of the pot in Lajpat Nagar was Rs. 500/- per sq. mtr. Vide letter dated 01.01.1997, the complainant requested the Authority to allot plot to her at the same rate at which the original allotment was made and also pay interest on the amount which she had deposited with the said Authority. However, the Authority did not reduce the price of the plot at Lajpat Nagar and vide letter dated 12.08.1997 informed the complainant that if she did not deposit the balance amount, interest at the rate of 21% per annum shall be charged from her. Vide her letter dated 09.12.1997, the complainant informed the Authority that she was depositing the amount of Rs. 3,90,000/- as demanded by the said Authority, but she was reserving all her legal rights. The words under protest also found written in English on the photocopy of the said letter filed by the complainant but the learned counsel for the Authority Submits that the aforesaid words do not appear on the original letter received by them. However, the aforesaid contention cannot be accepted for the simple reason that the Authority has neither filed the original document nor a photocopy of the said document. However, even if we proceed on assumption that the words under protest did not appear in the letter received by the Authority that would make no difference because it is not in dispute that vide the said letter, the complainant had reserved all her legal rights, meaning thereby that the allotment was accepted by her subject to her right to avail such legal remedy as may be available to her in law. The payment of money and the acceptance of allotment in the aforesaid circumstances cannot be said to be by free consent of the complainant and therefore such payment do not come in the way of the complainant approaching a Consumer Forum for the ventilation of her grievance.
3. Initially the complainant approached the Monopolistic and Restrictive Trade Practice Commission by way of a complaint filed in the year 1998 being RTPE 240/1998. However, vide order dated 07.03.2003, the said Commission allowed the complainant to withdraw the complaint with liberty to take recourse to any other remedy in an appropriate forum as permissible in law. The complainant thereafter approached the concerned District Forum seeking the following reliefs:-
a. To direct the respondent Authority to refund to the complainant a sum of Rs. 1,93,750.00 which the Authority charged in excess towards the cost of the plot as shown in Table-I above.
b. To direct the respondent Authority to refund to the complainant a sum of Rs. 2,39,383.50/- which the Authority charged from her as interest as shown in Table-II.
c. To direct the respondent Authority to pay interest amount of Rs. 4,64,661.50 @ 16% per annum on the amount deposited by the complainant from the date of deposit upto the date of possession as shown in Table-III.
d. To direct the respondent Authority to pay to the complainant a sum of Rs. 10,14,450.00 as shown in Table-V. e. Pendentelite and future interest be also allowed to the complainant @ 16% per annum on the total amount payable to the respondent.
f. A sum of Rs.
35,000/- to be awarded as damages against the respondent.
g. Cost of this complaint and any other relief.
4. The complaint was resisted by the Authority primarily on the ground that they were unable to give possession of plot in Nehru Nagar to the complainant on account of a stay from the High Court. It was also stated in the reply that the land of which the plot at Nehru Nagar constituted a part was released from the acquisition as per the order of the Government in favour of one Ishwar Das and thereafter an alternative allotment was made to the complainant. The amount which she had deposited against the allotment against the allotment of the plot in Nehru Nagar was duly adjusted and she was asked to pay the balance amount in respect of the plot at Lajpat Nagar. The complaint was also resisted on the ground that the complaint before the MRTP Commission as well as the writ petition filed before the Allahabad High Court having been dismissed, a consumer complaint on the same set of facts was not maintainable. Yet another plea taken by the Authority was that the complaint was barred by limitation prescribed in Section 24A of the Consumer Protection Act.
5. Vide order dated 20.04.2012, the District Forum directed the Authority to pay a sum of Rs. 8,78,164/- to the complainant alongwith interest on that amount at the rate of 6% per annum from the date of filing of the complaint. The Authority was also directed to pay Rs. 5,000/- as compensation and Rs. 2,000/- as costs of litigation to the complainant.
6. Being aggrieved from the order of the District Forum, the Authority preferred an appeal before the concerned State Commission.
The complainant who was not satisfied with the quantum of interest, also challenged the order of the District Forum by way of separate appeals. Vide order dated 07.07.2014, the State Commission partly allowed the appeal filed by the complainant by enhancing the awarded amount to the complainant from Rs. 8,78,164/- to Rs. 8,97,592/-. The appeal filed by the Authority was however dismissed.
Being aggrieved from the order passed by the State Commission the complainant as well as the Authority are before us by way of these two separate revision petitions.
7. It is an admitted case that the plot at Nehru Nagar was allotted to the complainant at Rs. 275/- per sq. mtr. It is also not in dispute that the possession of the aforesaid plot was not delivered to the complainant. The reply filed by the Authority before the District Forum would show that according to the said Authority though initially there was a stay from the High Court against allotment of the aforesaid plot, later on the Government released the land in question from acquisition and as a result the possession of the plot at Nehru Nagar could not be given to the complainant.
No copy of the stay order passed by the High Court has been placed before us. Assuming, however, that there was such a stay, the fact remains that eventually the possession was refused to the complainant not on account of the aforesaid stay, but on account of the land having been released by the Government from acquisition. The Authority has not disclosed the reasons which persuaded the Government to withdraw the aforesaid land from notification, despite plots carved out of the said land having already been allotted by the Ghaziabad Development Authority. In any case, the failure of the Authority to handover the possession of the plot in Nehru Nagar to the complainant cannot be attributed to any act or omission on the part of the complainant. Therefore, the Authority ought to have allotted another plot of similar size either in the same or a comparable locality at the same price at which the plot in Nehru Nagar was allotted to the complainant.
In our opinion, if a Development Authority such as Ghaziabad Development Authority, despite making allotment and accepting price of the plot from the allottee fails to handover the possession of the allotted plot and then seeks to provide an alternative plot at a higher rate, that would constitute a deficiency in relation to housing construction, which is a service within the meaning of Section 2(1)(o) of the Consumer Protection Act. In such a case, the aggrieved allottee would be entitled to approach the concerned Consumer Forum for a direction to the said Authority either for allotment of the same plot or for allotment of a comparable plot at the same rate at which the initial allotment was made to him.
If the allottee is made to accept the alternative plot at a higher price and he accepts such allotment reserving his legal rights to take action against the Authority for charging a higher price from him, the allottee would be entitled to approach the concerned consumer Forum for refund of the excess price illegally charged from him. In that case, he would also be entitled to appropriate interest on the amount which was illegally charged from him.
Therefore, in our view, the Authority was under an obligation to refund the excess price which it had charged from the complainant alongwith an appropriate interest on that amount.
8. Coming to the objection that the complaint is not maintainable on account of dismissal of an earlier complaint by MRTP Commission and a writ petition by Allahabad High Court, we find that as far as the MRTP Commission is concerned it had expressly granted leave to the complainant to approach an appropriate Forum for redressal of her grievance, which would include a Consumer Forum. This order was passed in the presence of the Authority without any opposition or protest from the said Authority. Therefore, in view of the leave granted by MRTP Commission, it cannot be said that dismissal of the complaint filed before the said Commission precludes the complainant from approaching the concerned Consumer Forum on the same set of facts.
As far as the writ petition in Allahabad High Court is concerned, the order passed by the Allahabad High Court has not been placed on record by the parties and consequently, we cannot know on which ground the said revision petition was dismissed. Therefore, we cannot hold the complaint to be barred on the aforesaid ground.
9. As far as the period of limitation is concerned, considering that earlier the complainant was bonafidely pursuing his case before MRTP Commission, which later on granted leave to him to approach the appropriate forum for redressal of his grievance, the complaint filed before the District Forum immediately after grant of leave by the MRTP Commission cannot be said to be barred by limitation.
10. For the reasons stated hereinabove, we dispose of both the revision petitions with a direction to the Ghaziabad Development Authority to refund the excess amount recovered from the complainant alongwith interest on that amount at the rate of 9% per annum from the date the said excess amount was deposited till the date it was refunded to her. The excess amount will be determined on the basis of the difference in price per sq. mtr. charged in respect of the plot in Lajpat Nagar and the price per sq. mtr. charged in respect of the plot at Nehru Nagar.
In the facts and circumstances of the case, there shall be no order as to costs. The payment in terms of this order shall be made within six weeks from today, failing which it will carry interest at the rate of 12% per annum.
V.K.JAIN, J PRESIDING MEMBER .
DR. B.C. GUPTA MEMBER PSM/20&21