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2013 DIGILAW 496 (UTT)

U. P. AVAS VIKAS PARISHAD v. SH. KRIPAL SINGH

2013-07-30

C.C.Pant, Kusumlata Sharma

body2013
ORDER (Per: Mr. C.C. Pant, Member): This appeal is directed against the order dated 17.10.2011 passed by the District Forum, Udhamsingh Nagar, partly allowing the consumer complaint No. 48 of 2010 and directing the opposite party that a plot having the area as per the plot originally allotted to the complainant be made available to him and to pay him a sum of Rs. 3,000/- towards cost of litigation expenses, within a month from the date of the order. 2. The facts of the case, in brief, are that the complainant – Sh. Kripal Singh was allotted a plot No. 630 through an auction dated 17.12.2008 conducted by the Estate Management Officer, U.P. Housing and Development Board, Kashipur, District Udhamsingh Nagar – opposite party (for short “Housing Board”) in Jaspur City Residential Scheme. In the advertisement published in the newspaper, the area of the said plot was shown as 81 sq. meters. Accordingly, the complainant made the payment for 81 sq. meters plot in pursuance of the allotment letter No. 939 dated 24.12.2008. When the complainant was given possession of the plot, the Assistant Engineer of the Housing Board gave possession of the plot No. 630 admeasuring 60.59 sq. meters and, thus, the plot was short by 20.41 sq. meters in area. The complainant sought clarification from the opposite party in this regard, but the opposite party failed to give any satisfactory reply to him. The complainant, alleging deficiency in service on the part of the opposite party, filed a consumer complaint before the District Forum, Udhamsingh Nagar. The District Forum, after an appreciation of the facts of the case, partly allowed the consumer complaint and directed the opposite party in the above manner. Aggrieved by the said order, the opposite party has preferred this appeal. 3. We have heard the learned counsel for the appellants and Sh. Braham Pal Singh, the authorized representative of the complainant and perused the record. 4. The learned counsel for the appellants argued that the appellants have not committed any deficiency in service by giving the possession of a plot to the respondent admeasuring 60.59 sq. meters instead of 81 sq. meters as per the allotment letter. He referred to Regulation No. 47 of the Housing Board’s Regulations, 1979 pertaining to the registration and allotment of the plots and houses (Amended Regulation, 1986). meters instead of 81 sq. meters as per the allotment letter. He referred to Regulation No. 47 of the Housing Board’s Regulations, 1979 pertaining to the registration and allotment of the plots and houses (Amended Regulation, 1986). According to this regulation, the allottee shall take the possession of the land of the allotted house/plot as per the actual measurement of the land and the payment shall also be made by the allottee accordingly. Further, the regulation stipulates that if the allottee has deposited excess amount than the actual cost of the land, the same would be refunded to him/her with interest @ 6% per annum. The learned counsel submitted that the appellants had issued refund order in accordance with this regulation, but the respondent did not comply with the directions given in the order for receiving the refund. Instead, he demanded that the value of the plot No. 630 be calculated @ Rs. 1,500/- per sq. meter and he also be given possession of the remaining area of 20.41 sq. meters from the adjacent plot, which is not yet allotted to anybody and also that the excess amount paid by him be adjusted in the cost of this land. The learned counsel submitted in this regard that such a demand made by the respondent was unreasonable and impracticable because the layout plan was already an approved plan in which the area of the plot No. 630 has been shown as 60.59 sq. meters. It was due to an inadvertent mistake on the part of the Junior Engineer/ Assistant Engineer of the Housing Board that the area of the said plot was shown as 81 sq. meters in the list of the plots, which were to be allotted by the process of auction. It was just a human error, which cannot be termed as deficiency in service on the part of the appellants. The learned counsel, thus, argued that the District Forum, without considering these facts and circumstances of the case, has erred by holding hat the appellants have committed deficiency in service and has issued such directions which are not possible to comply with. He submitted that if an area equal to 20.41 sq. meters is reduced from the adjacent plot, then that will disturb the whole layout plan. Further, the said plot from which the respondent has asked to give the remaining area, is marked for the weaker section. He submitted that if an area equal to 20.41 sq. meters is reduced from the adjacent plot, then that will disturb the whole layout plan. Further, the said plot from which the respondent has asked to give the remaining area, is marked for the weaker section. The reduction in the area of the said plot would mean depriving the applicants of the weaker section from the allotment of the plot. Therefore, the learned counsel submitted that the impugned order be set aside and the appeal be allowed. 5. The authorized representative of the respondent-complainant reiterated the facts of the case and argued in support of the impugned order. He also submitted that had the plot not been allotted by auction, the cost would have been @ 1,500/- per sq. meter, but the appellants, by advertising its area as 81 sq. meters in the newspaper, allotted it through auction on the basis of the highest bid. The respondent’s bid being the highest, it was allotted to him @ Rs. 1,725/- per sq. meter. The respondent deposited the full amount of Rs. 1,26,225/-, after adjusting the registration amount of Rs.13,500/-, in compliance of the allotment letter dated 24.12.2008. Vide its letter dated 03.02.2009, the Estate Management Officer directed the Assistant Engineer of the Housing Board to give possession of the plot No. 630 to the respondent. On 09.02.2009, the plot was handed over to the respondent, but the actual area of the plot was found as 60.59 sq. meters. The Housing Board, vide its letter dated 10.06.2010, sent the refund voucher for the amount deposited in excess to the complainant directing him to sign it after affixing revenue stamp and to furnish details regarding his account number etc. The respondent had, infact, requested the appellants on 04.04.2009 to allot the adjacent plot, which was vacant, as the allotted plot’s area was insufficient for construction of a house, but the appellants did not reply to it. Upon this, a joint representation by five applicants, including the respondent, was submitted to the Housing Board and the Housing Board was requested to allot the unallotted plot adjacent to the plots of the applicants, so that the short-fall in the actual area of the plots could be made up, but the appellants did not pay any heed to it. Upon this, a joint representation by five applicants, including the respondent, was submitted to the Housing Board and the Housing Board was requested to allot the unallotted plot adjacent to the plots of the applicants, so that the short-fall in the actual area of the plots could be made up, but the appellants did not pay any heed to it. Instead, an amended allotment letter dated 10.06.2010 was issued in which the rate of the land was charged, as per the auction bid for the plot of 81 sq. meters, but the area of the plot was reduced to 60.59 sq. meters. According to the respondent, the adjacent plot is still vacant. Thus, the respondent pleaded that the appellants have repeatedly committed deficiency in service and, therefore, the District Forum’s order is just and reasonable. 6. We considered the submissions made by the learned counsel for the appellants and authorized representative of the respondent. We cannot accept the plea taken by the appellants that the error in respect of the area of the plot No. 630 was a human error and not a deficiency in service. The Housing Board has a huge team of technical persons as well as administrative/management officials. If the layout plan of the housing scheme was an approved one and the area of the plot No. 630 was 60.59 sq. meters, then how the technical staff reported it as 81 sq. meters. The learned counsel for the appellants admitted that the category of plots having an area of 80 sq. meters or more are allotted by way of auction, while the plots smaller than 80 sq. meters are allotted by lottery system. It was also not disputed that the rate of the land was Rs. 1,500/- sq. meters for the plots having an area less than 80 sq. meters. Due to the mistake committed by the staff of the Housing Board, the respondent had to manage funds for 81 sq. meters and he also deposited the total cost of the plot in lump-sum. But the possession was given for 60.59 sq. meters and, thus, the amount paid in excess became refundable. The appellants committed first mistake at the time when the plot No. 630 was included in the list of plots, which were to be allotted by way of auction. meters and he also deposited the total cost of the plot in lump-sum. But the possession was given for 60.59 sq. meters and, thus, the amount paid in excess became refundable. The appellants committed first mistake at the time when the plot No. 630 was included in the list of plots, which were to be allotted by way of auction. The second mistake was committed by the appellants at the time of issuing the allotment letter and the respondent was asked to deposit the amount at a higher rate. Was it not the duty of the appellants before issuing the allotment letter to ascertain whether the plot size is as per the approved layout plan or not ? Had the officials taken a vow that they would not touch the measuring tape before giving the possession of the plot? Is the layout plan such a confidential document that even the Estate Management Officer has no access to it and he has to rely on whatever the Engineers of the Housing Board tell about the plots? Why has the layout plan not been made available to those officials, who conduct Board’s business? No reply to these questions is available on record. Therefore, we have no hesitation to say that the appellants have repeatedly committed deficiency in service and for this reason, the order passed by the District Forum is justified. 7. According to the respondent, the adjacent plot is still vacant. Therefore, the appellants must allot atleast 20.41 sq. meters of land to the respondent, so that his plot size becomes 81 sq. meters. If the layout plan gets disturbed by reducing the area of the adjacent plot, then the whole plot should be allotted to him and the cost of additional land should be realized from him. The plea taken by the learned counsel for the appellants in this regard that the adjacent plot is marked for weaker section and if its size is reduced, then a person belonging to the weaker section will be deprived of an opportunity of getting a plot, is also not tenable. If the appellants are so much concerned for the weaker section, then they should arrange some more land for the weaker section. If the plots are still unallotted, then such pleas are without any footing. In defence of the appellants, the learned counsel also submitted that the respondent is not a loser. If the appellants are so much concerned for the weaker section, then they should arrange some more land for the weaker section. If the plots are still unallotted, then such pleas are without any footing. In defence of the appellants, the learned counsel also submitted that the respondent is not a loser. The only loss that could be said to have suffered by him, is that he has paid a higher rate for the plot. This submission is also not logical. It is not the cost which has caused a loss to him, but it is his dream to construct a house of his choice on a bigger plot which has been shattered by the deficient services rendered to him by the appellants. One more argument advanced by the learned counsel in defence of the appellants is that if the plot size was found smaller than the size mentioned in the allotment letter, the complainant should have refused to take the possession of the plot, rather, he accepted it and took the possession of the plot and, hence, the consumer complaint is itself baseless. No, we do not agree to it. Had he refused to take the possession, the appellants must have either forfeited the whole amount deposited by him or would have made heavy deduction from it. Such a situation would have given rise to another consumer dispute. So he took a wise step by accepting whatever was made available to him at the time of giving possession of the land and then he requested the Housing Board to make up the short-fall from the adjacent plot, which was vacant and unallotted. The appellants made one more deficiency in service by not replying to his letters. The most forceful argument of the learned counsel is based on Regulation No. 47, as referred above. As this Regulation stipulates, the allottee would be given the possession as per the actual measurement of the plot and the difference of cost would be either payable by or refundable to the allottee depending on whether the area is in excess or is less. As this Regulation stipulates, the allottee would be given the possession as per the actual measurement of the plot and the difference of cost would be either payable by or refundable to the allottee depending on whether the area is in excess or is less. The intention behind this Regulation is not to provide immunity to the officials of the Housing Board and to allow them to conduct the business of the Board in arbitrary manner (like the instant case), but the intention behind the regulation is that there may be some variation in the plot size when measured at the time of giving its possession to the allottee. The “variation” means slight and reasonable variation. For example: if the size of the plot in the approved layout plan is 81 sq. meters, then it may actually be 81.5 sq. meters or 80.6 sq. meters, when measured at the time of giving its possession. Nobody can think that the variation would be to the extent of 81 sq. meters and 60 sq. meters. Such a huge variation may change the category of the plot. The plot size of 81 sq. meters appears to be in the category of middle income group and that of 60 sq. meters in lower income group. The Board’s objective, as it appears to us, is that it may try to fetch more money from middle income group and higher income group by way of auctioning the plots, but it has fixed a rate of Rs. 1,500/- per sq. meter for lower income group. If the officials commit such a blunder, as in the instant case they have done, they cannot take the advantage of the provision of the Regulation No. 47. We do not know whether the Board has taken any action against the erring official or not, and we are not much concerned to it, but the Consumer Forum would certainly protect the interest of the consumer in such cases, where a blunder has been committed and the allottee has been put to great inconvenience, mental and physical agony. Therefore, this appeal is devoid of merit and is liable to be dismissed. 8. The appeal is dismissed. The order dated 17.10.2011 passed by the District Forum, Udhamsingh Nagar is hereby confirmed. No order as to costs.