SHIELA CONSTRUCTIONS PVT. LTD. vs NAINITAL LAKE DEVELOPMENT AUTHORITY

THIS order will dispose of Original Petition No. 230/ 93 filed by M/s. Sheela Constructions Pvt. Ltd. against Nainital Lake Development Authority and Divisional Forest Officer, Forest Department, Van Prabhag, Nainital, U.P. and Original Petition No. 249/93 filed by M/s. Kripalu Constructions Pvt. Ltd. against Nainital Lake Development Authority, Chief Forest Officer beside Chief Secretary of the Government of U.P. and Commissioner, Kumaun Mandal, Nainital, U.P.

GREATER Nainital Development Authority was formed in the year 1984. A proposal was passed in the Board meeting of the Authority to launch a sub-city in village Khurpatal for the purpose of reducing the pressure of population in Nainital. A proposal was made and passed to acquire 172 Nali land of Village Khurpatal which was later acquired by the Government. A project report and plans of the scheme were got prepared from Roorkee University and a proposal was also passed to get the financial help to the Board. In the year 1989, after dissolution of the GREATER Nainital Development Authority, Nainital Jheel Special Area Development Authority was formed by the Government. A decision was taken in the meeting of the newly formed Development Authority held on 19.1.91 to auction six plots of 2000 sq. mtr., each on the premium basis with the purpose of making the said scheme as self-financing. After this proposal was approved in the Board meeting of the Authority on 27.9.91, a decision was taken to auction 12000 sq. mtr. of land out of 35000 sq. mtr. acquired land of Khurpatal for group housing purpose and in the balance land to provide Amusement Park, Commercial Centre, hospital, CPWD guest house, resorts, school etc. After the approval of the Board was taken, the Nainital Lake Development Authority issued an advertisement. One such advertisement in Hindustan Times dated 10.8.91 is in the following terms : "CALLING NAINITAL The coolest Retreat, To beat the Heat, Invi-tation to Developers for Auction of Space for Residential Complex, Nainital (West). Salient features : Approximately 8 Kms from lake, on Nainital - Delhi Road (via Kaladhungi). Surrounded by natural plantation of pine trees. Beautiful lake for water games. Fully developed roads, adequate water supply. . An amusement park and resort to be developed within the complex. Space for commercial complex, post office etc. TERMS : Please contact for further details : Secretary, Nainital Lake Development Authority, Nainital (U.P) Plot No. 3, 4, 5, 6, 7, 8 Area 2000 sq. mtrs. F.A.R. 200% Ground Coverage : 65% Date of Auction : Tuesday, 17th Sept., 1991 (at 11 am) at office of the Secretary. Sd/- G.S. Joshi Sd/- Deepak Singhal PCS IAS Secretary Chairman/DM NAINITAL LAKE DEVELOPMENT AUTHROITY, Nainital Secretariat Building, Nainital 263 001 (U.P.) Ph. 2881"

Auction took place on 17th September, 1991 when six group housing plots were sold. M/s. Sheela Constructions Pvt. Ltd. purchased a plot of 200 sq. mtrs. on 17.9.91 in auction for payment of Rs. 51 lakhs. M/s. Kripalu Constructions Pvt. Ltd. purchased a plot of 2000 sq. mtrs. for a payment of Rs. 45 lakhs. Each of the complainants had earlier paid at the time of submission of their applications a sum of Rs. 1.00 lakh.

NAINITAL Laka Development Authority in its letter dated 19.10.91 addressed to M/s. Sheela Constructions Pvt. Ltd. confirmed the allotment of group housing plot. No. 6 in NAINITAL (West) scheme having an area of 2000 sq. mtrs. at the rate of Rs. 2,550/- per sq. mtr. for an amount of Rs. 51.00 lakhs as per the complainant''s highest bid in the auction held on 17.9.91 under the said scheme and the approval accorded by the Chairman/District on the terms and conditions mentioned therein inter alia. (i) firstly allotment of plot will be made on payment of 10% of the total cost of Rs. 51.00 lakhs i.e., Rs. 5.10 lakhs and the rights will be given for the advertisements and to get the approval of the drawings of group housing,. . (iii) possession of land will be handed over after one month on payment of additional 10% amount of Rs. 5.10 lakhs within next three months,.. .. (v) after depositing above mentioned 20% amount, balance 80% amount shall have to be paid within years at 6-months intervals,.. .. (xix) external development work will be done by the Authority according to the layout plan on regular payments by the allottees.

.. An identical letter was issued to Kripalu Constructions Pvt. Ltd relating to the allotment of Plot. No. 4 having an area of 2000 sq. mtrs. at the rate of 2,250 per sq. mtr. for an amount of Rs. 45.00 lakhs as per the complainant''s highest bid in the auction held on 17.9.91 under the said scheme. Similar terms and conditions are contained except that the amount of instalment in Rs. 4.50 lakhs.

BOTH the complainants have alleged deficiency in service of the opposite party in not carrying out the provision of the link road which was promised and assured by the Authority at the time of auction to enable the complainants to start construction work and a large number of letters, representations and reminders were sent by the complainants to all authorities concerned. A writ petition was filed in the Allahabad High Court alleging the Nainital Lake Development Authority''s failure to fulfil its obligations towards the promoters for the completion of the link road and other infrastructure facilities. The Allahabad High Court did not go into that question but advised the promoters to make fresh representations with the Authority about its grievance and the Authority was called upon to convey its decision on all such points raised in such representation within a specified time. The promoters made representations. During the pendency of the above complaints before this Commission it came to the notice of this Commission that the construction of the road was not completed and there was a gap of about 100 meters. This Commission in the order dated 10th November, 1994 had directed the Nainital Lake Development Authority to forthwith complete the construction of remaining portion of the road measuring about 100 meters and to construct such construction not later than 15th January, 1995 and at the same time the two complainants were directed to deposit in all a sum of Rs. 5.00 lakhs by 31st December, 1994 and the said amount was to be credited towards the liability of the complainant under the terms of the auction. The complainant in Original Petition No. 249/93 had failed to comply with the order for deposit of Rs. 2.50 lakhs on or before 31st December, 1994 but offered to tender a demand draft of Rs. 2.50 lakhs at the hearing of the petitions on 19th October, 1995. The amount was accepted by the Counsel for the Nainital Development Authority but this Commission directed the complainant to pay interest at the rate of 18% per annum on the said amount of Rs. 2.50 lakhs from 31.12.94 till that date. This Commission was also informed on that date that link road had been completed. We have purposely noted the above facts briefly as we are not inclined to go into the merits of the complaints for two reasons. Firstly as would be seen from the above facts the complainants have purchased the said plots in an auction held on 17th September, 1991 conducted by the Nainital Lake Development Authority. The allotment of the plots have been made for the amount of highest bid in the auction held on 17.9.91 on the terms and conditions contained therein. There is no hiring of services for consideration when it is an outright sale of immovable property in an auction. Secondly, this Commission is not inclined to go into the complicated questions of fact arising in this case based on voluminous documentary and oral evidence within the time bound proceedings before this Commission. The Act does not contemplate the determination of complicated issues of fact involving taking of elaborate oral evidence and adducing of voluminous documentary evidence and detailed scrutiny and assessment of such evidence. The FORA constituted under the Act have no doubt the power to examine witnesses and to take evidence but such power should be exercised in such cases where issues are simple as to any shortcoming or inadequacy in the quality, nature and performance of service which the opposite party had contracted to perform for consideration. The Consumer FORA can decline to exercise jurisdiction in other cases and refer the party to its ordinary remedy by way of suit. The complaints are dismissed without going into merits leaving the parties to bear their own costs. Any observation made by this Commission will not prejudice either of the parties if and when proceedings are taken before a Civil Court or other appropriate authority. Complaints dismissed.