ASHA RANI LAMBA vs COMMISSIONER AND SECRETARY TO GOVT, HARYANA TOWN AND COUNTRY PLANNING DEPARTMENT

THIS judgment shall dispose of above titled two appeals bearing Nos. 189 of 2005 and 191 of 2005 which have arisen from common order dated 7.6.2005 passed by District Consumer Disputes Redressal Forum-I, U.T. Chandigarh (hereinafter to be referred as District Forum-1).

BRIEFLY stated the facts are that Smt. Asha Rani Lamba wife of Dr. Agia Ram Lamba was allotted a plot bearing No. 1569P measuring 14 marla (13 x 23 i.e. 299 sq. mtrs.) for Rs. 63,967, situated in Sector 8/9, Karnal, by draw of lots on 16.9.1984. However, possession of the said plot could not be give to Smt. Asha Rani, complainant as high tension wires of electricity were passing over the above said plot. Alternative plot was offered to the complainant on 22.1.1993, bearing Plot No. 847A, Sector-9, Karnal, on the same terms and conditions on which the earlier plot was allotted. The area for the said plot was 308.20 sq. mtrs. The possession of alternative plot was also offered in the letter vide which alternative plot was allotted. Till 22.1.1993, there were two enhancements regarding price of land i.e. Rs. 108 per sq. yard and Rs. 55 per sq. yard. Demand of Rs. 1,78,185 was made in respect of plot No. 847A, Sector 9, Karnal. Smt. Asha Rani Lamba filed an appeal against demand notice dated 4.1.2000 issued by the Estate Officer, Karnal. The Administrator, Haryana Urban Development Authority exercising the powers of Chief Administrator vide order dated 13.11.2001 held that no interest would be charged till the offer of possession in the year 1993 when the alternative plot was allotted on 22.1.1993. However, it was held that Haryana Urban Development Authority (hereinafter referred to as HUDA) was entitled to charge interest @ 10% simple on delayed payments and further there was no need to send notice after 22.1.1993 about enhanced compensation as notice about enhanced compensation was sent to the appellant before, with regard to plot No. 1569P and alternative plot was allotted to her in the same area. He also held that HUDA was entitled to interest on the instalments paid by her between 1984 and 1993 on the ground that alternative plot was offered to her on the old rates and the market rate of the plot in 1993 was much more than the market rate in 1984.

Aggrieved by the said order, she filed revision petition before the Financial Commissioner and Secretary to Government of Haryana, Town and Country Planning, which was dismissed by him vide order dated 30.5.2002 Annexure P-9. It was next averred that she received notice from the office of Estate Officer, HUDA, Karnal dated 26.6.2002, according to which an amount of Rs. 2,62,885 was mentioned as standing due from her by way of price, interest and extension fee. Copy of the said notice is Annexure P-10. She had prayed for quashing of said notice as no extension fee could be charged for two years from the date of possession of alternative plot, as observed by the Chief Administrator and in respect of which Estate Officer had demanded the extension fee.

WITH these allegations, she had prayed that she be allowed compensation for escalation in cost of construction to the tune of Rs. 5 lacs due to non-delivery of possession by HUDA for a long period of more than 8 years which amounted to deficiency in service. She had also stated that she was not liable to pay interest on the enhanced price which was claimed by HUDA @ Rs. 108 per sq. yard and Rs. 55 per sq. yard, since, she was not issued notice for payment of the said amount and no detail of the enhanced cost had been given. She next stated that Estate Officer was bound to issue fresh notice for realizing of the enhanced amount after allotment of Plot No. 847A. She next stated that she had paid Rs. 30,000 as ordered by the Civil Court which had not been adjusted, and further HUDA realized Rs. 37,000 extra by way of price of the plot upon which it was liable to pay interest @ 18% p.a. She next stated that HUDA could charge interest not more than 10% p.a. for delayed payment of instalment, rather charging 15% to 18% that too only simple interest and not compound interest. She further stated that HUDA officials had not given area and dimension of plot No. 847A, Sector 9, Karnal, which amounted to deficiency in service on the part of HUDA. Huda contested the complaint and filed written reply. They took certain preliminary objections; that the complaint was time-barred, that the complainant had availed alterative remedy of appeal before the Administrator and revision before the Commissioner and Secretary, as such remedy against the order of Commissioner was to file writ petition before the High Court, so, complaint was not maintainable before the District Forum, and that the Forum had no power to entertain the pricing matter and further had no territorial jurisdiction. On merits, they denied the allegations of complainant and stated that alternative plot No. 847A was given to the complainant as per Huda policy on 22.1.1993 and possession of the same was offered with the allotment letter itself, with complete development. They next stated that the alternative plot was allotted to the complainant on the same terms and conditions as that of original plot and notices regarding dues were sent to the complainant with respect to the original plot. They further stated that the extension fee had been charged from the complainant as per policy of Huda i.e., after two years from the date of offer of possession i.e., with effect from 1995. They also stated that they are not responsible to pay any compensation and the interest had been charged as per Huda policy. Parties adduced their evidence by way of affidavits.

AFTER hearing Counsel for the parties, District Forum-I vide order dated 7.6.2005 accepted the complaint and held that the Estate Officer would not charge possession interest till the offer of actual possession of the plot on 22.1.1993. It also allowed compensation of Rs. 1,75,000 on account of escalation in cost of construction as HUDA failed to deliver the possession for more than 8 years. It further allowed Rs. 25,000 as compensation to the complainant for harassment, inconvenience and mental agony, besides Rs. 1100 as costs, but stated that no interest was to be paid to the complainant on the amount remained deposited with HUDA. It next stated that the extension fee would be charged after the period of two years of the offer of possession on 22.1.1993. It, however, allowed complainant to pay enhanced compensation in instalments as allowed by HUDA authorities and they would charge interest on the enhanced amount from the date they sent notice demanding enhanced amount. Aggrieved by the said order, Smt. Asha Rani filed appeal No. 189 of 2005. Another appeal was filed by HUDA bearing No. 191 of 2005. It was stated that they were not liable to pay any compensation for escalation in cost of construction and even if the complainant was entitled to compensation on account of escalation in cost of construction, then, the amount awarded by the District Forum was on the higher side which was not justified. They next stated that there was no negligence on their part, so, they are not liable to pay Rs. 25,000 as compensation on account of mental agony, harassment and inconvenience. They also denied that they were liable to pay Rs. 1100 as costs. We have heard Mr. Gopi Chand, Advocate for Smt. Asha Rani and Mrs. Suraksha Sharda, Advocate for HUDA, etc. and carefully gone through the file. It is an admitted fact that Smt. Asha Rani was allotted residential plot No. 1569P measuring 299 sq. mts. situated in Sector 8/9, Karnal for Rs. 63,697 on 16.9.1984 by draw of lots. However, possession of the said plot could not be delivered to her on account of passing of high tension line of electricity over it. She was given alternative plot bearing No. 847A, Sector 9, Karnal on 22.1.1993 and the possession of the said plot was offered along with the allotment letter. Thus, Smt. Asha Rani, appellant was offered possession after a period of more than 8 years. It has been observed by the Hon''ble Supreme Court in Ghaziabad Development Authority v. Balbir Singh, II (2004) CPJ 12 (SC)=III (2004) SLT 161=AIR 2004 Supreme Court 2141, in para (c) that compensation under head, escalation in cost of construction, is to be awarded after taking into consideration amount of delay. It has further been observed in para 11 on page 2150 as under: "At this stage it must be mentioned that the National Forum has in its judgment in Darsh Kumar''s case (supra) stated that the interest at the rate of 18% per annum takes into consideration the escalation in the cost of construction as well. Even if that be so, the compensation cannot be at a uniform rate. If the delay is only of one or two years, the escalation in the cost of construction will not be as much as in a case where the delay is of five years or more. Therefore, if compensation has to be awarded for escalation in the costs of construction, it must be done under that head after taking into consideration the amount of delay. Such compensation can be fixed on the basis of indexes of bodies like CPWD of PWD. Further, it must be noted that where a flat is allotted and possession given even though it is given belatedly, there will be no question of escalation in the cost of construction. Yet, even in such cases interest at the rate 18% per annum including escalation in the cost of construction has been granted. Further in cases where the Commission/Forum has directed delivery of possession the party has to a certain extent already got a benefit. The cost of the land/flat would have gone up in the meantime. Of course, even in cases where delivery of possession has been directed there could be compensation for the harassment/loss. But such compensation has to be worked out after looking into the facts of each case and after determining what is the amount of harassment/loss which had been caused to the consumer."

THEREFORE, according to the observation of Hon''ble Supreme Court, interest at the rate of 18% taking into consideration escalation in the cost of construction as well, cannot be granted as a general rule. If there is delay of one to two years, the escalation in the cost of construction will not be much but if the delay is of five years or more, then compensation could be awarded. In the present case, the delay is of more than 8 years, which is inordinate delay. It is true that the appellant Smt. Asha Rani had been given alternative plot bearing No. 847A in the same Sector on the same terms and conditions but on 22.1.1993 i.e., after more than 8 years and 4 months. There must be sufficient escalation in the cost of construction but at the same time there must have been increase in the cost of plot also. Those were dark days of terrorism. Terrorism was at peak in Punjab. The people were shifting from Punjab to Haryana due to fear of terrorists. One of the favourable destinations was Karnal, thereby the cost of construction has been pushed up.

THE indexes of bodies like CPWD and PWD had not been produced to calculate the cost of escalation. This Commission in Raj Dulari v. HUDA, 2003 (3) CON.LT 449, had awarded interest @ 18% on the deposited amount towards the price of plot which also included the escalation in cost of building material as there was delay in offering possession. However, this authority now is not applicable in view of the authority of Hon''ble Supreme Court in Ghaziabad Development Authority (supra) as compensation under head escalation in cost of construction and interest has to be determined separately. The National Commission in the case of Haryana Urban Development Authority v. Darsh Kumar, I (2002) CPJ 35 (NC)=2002 CTJ 365 (C) (NCDRC), has also held that reasonable rate of interest to be awarded is @ 18% as the same will take care of the cost of construction, material and separate compensation was not required to be paid for the escalation in cost of building material. But again, this authority is not applicable in view of the authority of Supreme Court.

The District Forum has allowed compensation of Rs. 1,75,000 in lumpsum. We think that the grant of compensation of Rs. 1,75,000 on account of escalation in cost of construction during long period of more than 8 years and extraordinary circumstances were prevailing which pushed up prices of construction material and taking into consideration that alternative plot has been allotted to the appellant Asha Rani Lamba is not excessive and is reasonable. So, the same is confirmed.

THERE is no dispute about it that HUDA is entitled to charge extension fee after two years on giving the possession i.e., with effect from 22.1.1995 as per their policy and if the extension fee as levied after two years from 22.1.1995 is not paid, then HUDA is entitled to interest as per their entitlement and policy. Counsel for appellant Smt. Asha Rani contended that although, the plot bearing No. 847A, Sector 9, Karnal was allotted on 22.1.1993 but its area and measurements were not mentioned and further no notice was given for realizing of the enhanced price and as such she was not liable to pay interest on the enhanced price. Again, the contention of learned Counsel is not tenable. Alternative plot was allotted in the same area in which earlier plot was allotted i.e., in Sector 8/9 Karnal. It was also mentioned in the letter that it has been allotted on the same terms and conditions. The appellant Asha Rani had paid major part of instalments of enhancement of price. So, she knew that enhancement of price prior to allotment of alternative plot had come, which is to be paid. It cannot be said that there could be no enhancement of price as far as alternative plot is concerned because it was situated in the same area, therefore, Asha Rani also knew about the enhancement in price, so, even, if HUDA had not served any notice regarding enhancement of price, she was liable to pay and if she committed default, then she is liable to pay interest as per HUDA policy.

COUNSEL for appellant next contended that she had been allotted plot No. 1569P on 16.9.1984 but possession was not offered and alternative plot was allotted on 22.1.1993 bearing No. 847A, Sector 9, Karnal and she had paid the amount of Rs. 63,967 in 1990 and as such full amount was utilized by HUDA for three years. It has been observed by Hon''ble Supreme Court in Roochira Ceramics v. Haryana Urban Development Authority and Others, (2001-2) PLR 218 that if an allottee committed default in payment of instalments, HUDA is entitled to charge interest @ 10% and charging of interest @ 18% is illegal. Therefore, HUDA is also liable to pay interest at the same rate i.e. @ 10% p.a. for three years during which it kept full amount with it and utilized the same from 1990 to 1993. Counsel for appellant Smt. Asha Rani contended that HUDA was not entitled to additional price on account of enhanced compensation of land. For this contention, he has relied upon Haryana Urban Development Authority v. Smt. Rajinder Kaur and Ors., 1989 (1) Recent Revenue Reports 276 and Shiv Charan Lal v. HUDA and Anr., 1988 (1) Recent Revenue Reports 347. In our opinion, above mentioned authorities are not applicable in view of the authority of Division Bench of High Court in Charanjit Bajaj and Others v. The State of Haryana and Others, 1986 PLJ 601, in which it was observed that in view of the condition of Haryana Urban Development (Disposal of Land and Buildings) Regulations 10 and 2(b), the plot holder is liable to pay additional price to the extent of enhanced amount of compensation paid by HUDA. Thus, she is liable to pay enhanced amount of compensation. The District Forum has granted compensation of Rs. 25,000 for harassment, mental agony and inconvenience which Smt. Asha Rani had to undergo as alternative plot was not allotted for a long period of more than 8 years and this amount is not excessive and has been rightly granted.

HUDA shall charge extension fee after two years of 22.1.1993 i.e., with effect from 22.1.1995 as per HUDA policy and if the amount of enhanced compensation as well as extension fee was not deposited as per rules, then, HUDA would be entitled to interest as per policy of HUDA.

COUNSEL for HUDA contended that Smt. Asha Rani was not consumer. However, this contention is without any merit in view of the authority of this Commission titled Ms. Ashu Bhatia v. Haryana Urban Development Authority & Anr., I (2003) CPJ 130=2003 (1) CPC 269. It is not case of the appellant Smt. Asha Rani that she has been allotted lesser area but perusal of the record shows that she has been allotted more area in the shape of plot No. 847A, in Sector 9, Karnal in lieu of previous plot No. 1569P, Sector 8/9, Karnal. It is true that area in measurement has not been mentioned in the allotment letter dated 22.1.1993 but it is mentioned as on the same terms and conditions, meaning thereby that the area and offer conditions are the same. Moreover, offer of possession was made along with the allotment letter. If appellant Asha Rani so wanted, she could have visited the office of HUDA to get the possession and to know exact measurements. Morever, no such objection was taken before the HUDA officials when she agitated the matter.

In view of the discussion above, appeal filed by HUDA is without any force and the same is dismissed with costs of Rs. 1,000.

APPEAL filed by appellant Smt. Asha Rani is accepted in part with proportionate costs of Rs. 1,000. As far as payment of interest for the period of three years on the amount deposited by her before the allotment of alternative plot is concerned, she is awarded interest @ 10% p.a. on the amount of Rs. 67,060 for the period of three years. Accordingly, with this modification in the order of District Forum-I, the appeal is disposed of. Copies of the order be communicated to the parties, free of charge. Ordered accordingly.