PLJ 2013 Tr.C. (Consumer Court) 10
[Consumer Court, Rawalpindi]
[Consumer Court, Rawalpindi]
Present: Sohail
Nasir, Judge Consumer Court
Malik KHALID
MAHMOOD--Claimant
versus
DEFENCE HOUSING
AUTHORITY, PHASE-1, RAWALPINDI
through its Administrator and another--Respondents
Case
No. 27 of 2010, decided on 1.9.2012.
Punjab Consumer
Protection Act, 2005--
----Ss. 2(J)
& 25--Service provider between claimant and DHA--Lawyers Cooperative
Housing Society merged into DHA--Plot does not fall within definition of
product--Plot allotted to claimant was not a product--Jurisdiction of Consumer
Court--Question of--Whether plot was a product within definition of
PCSA--Determination--Under Sale of Goods Act word Goods relates to only
moveable property whether in its independent capacity or being attached to any
immoveable property--Plot was not a product within meaning of Act, 2005. [P. 15] A
Punjab Consumer
Protection Act, 2005--
----S.
25--Defense Housing Authority Ordinance, 2005--Scope--Cooperative Societies
Act, 1925--Scope--Co-operative Societies Rules, 1927--Undoubtedly DHA is a body
corporate pursuant to DHA Ordinance, which was being ran administered by its
management in accordance with its by Laws as framed and registered under
provisions of Act, 1925 and Rules, 1927 with object of purchasing setting and
consolidating land by developing into housing society for its members. [P. 15] B
Punjab Consumer
Protection Act, 2005--
----S.
25--Jurisdiction--Lawyers cooperative Housing Society subsequently merged into
DHA--Member of society--Service provider between claimant and DHA--Claimant had
deposited development charges, hence hired services--Validity--DHA was
answerable to consumer with regard to its services and if there was any denial
to services or facility, consumer has absolute right to knock door of the Court
and to seek remedy as provided--Consumer Court had jurisdiction to entertain
and to adjudicate upon dispute between the parties. [P. 18] C
Punjab Consumer
Protection Act, 2005--
----S.
2(c)(2)--Relations of consumer and service provider--On getting plot claimant
had deposited development charges, hence he had hired services for
consideration which falls u/S. 2(c)(2) of Act, 2005 and when it is so there
existed and in existence relations of consumer and service provider--DHA had
agreed to provide a plat to claimant being member of society and when such
service came to an end by provision of plot where construction was not possible
then it was a case of defective services. [P.
18] D
Punjab Consumer Protection
Act, 2005--
----S.
25--Defective and faulty services to claimant--Member of Lawyer Housing
Authority subsequently merged into DHA--Facilities like water, electricity and
gas were not available--Deposited as cost of plot as development charges--Responsibilities
and liabilities--Validity--DHA rendered defective and faulty services to
claimant and due to such reason claimant was unable to place a brick for
construction of his house--Because of unjustified actions and denial of
services by DHA that claimant was still without a house on his plot--They
cannot be allowed to play with rights of their members as per their
wishes--Claimant could not start construction because of defective services so
he had suffered an economic loss. [Pp. 19,
22 & 23] E, F, G & H
Punjab Consumer
Protection Act, 2005--
----S.
31--Damage--Member of Lawyers Housing Society subsequent merged into
DHA--Service provider between claimant and DHA--Facilities water, electricity
and gas were not available--Unable to construct his house--Suffered an economic
loss--Compensation--Claimant had demanded an amount of Rs. one crore on account
of compensation--Therefore, under settled principles of law it will be presumed
that defendant had accepted plea of claimant--No detail of damages had been
given so to award the whole amount will not be adequate and appropriate--By
taking all aspects and circumstances into consideration Court deemed it proper
to award an amount of 25,00,000/- claim filed by claimant was accepted. [Pp. 23 & 24] I & J
Malik Khalid
Mahmood, Advocate claimant in person.
Mr. Rashid
Mahmood Sindhu, Advocate for both Defendants.
Date of hearing:
1.9.2012.
Judgment
By filing this
claim under Section 25 of The Punjab Consumer Protection Act, 2005 (hereinafter
to be called the Act) Mr. Khalid Mahmood claimant had asserted that he is a
lawyer by profession as well as members of District Bar Association Rawalpindi
and High Court Bar Association Rawalpindi Bench Rawalpindi; initially he was
the member of Lawyers Co-operative Housing Society Rawalpindi; said Society was
subsequently merged into Defence Housing Authority (hereinafter to be called as
DHA); claimant, then, became, a member of DHA vide Membership No. L/45202(p-5)
hence relations of `Consumer' and `Service Provider' had established between
claimant and Defendant No. 1; On 21.8.2009 Defendant
No. 1 handed over the possession of plot. No. 49, situated in street No. A, Sector B-1 to the claimant and at that occasion,
claimant was constrained to submit an undertaking in terms that "I want to
take the possession of my above plot to construct to my house where facilities
like water/electricity/gas etc. are not available and I will not claim any
facility during construction work from DHA"; claimant when made the
inspection of plot, he found it as uneven/ unleveled consisting of sheer solid
rocks giving the semblance of a mountain top and not to be utilized for the
construction of residential house; around the said, place, some private houses
were constructed by respective owners; if claimant proceeds for construction of
a house by embarking upon any clearing of the rocky top to bring it down to a
certain level, there is a legitimate fear that said process will cause damage
the adjoining houses; at the most this plot is atop, a mountain or cliff; it
was an obligation on the part of defendants to offer possession of a
residential plot after developing it, otherwise it was clearly breach of trust;
claimant visited the Defendant No. 1 on various occasions and narrated his
agonies; Defendant No. 1 half-heartedly assured but did nothing; claimant send
a letter to Defendant No. 1 seeking intervention, but of no avail; claimant
again met Mr. Faisal Iqbal Niazi Deputy Director (Defendant No. 2) and also
requested him for his judicious intervention, but of no success; instead of
redressing the grievances of claimant, Defendant No. 2 started to talk about
one Ch. Nasrullah Khan former president of Lawyers Co-operative Housing
Society, who had no nexus with the dispute in question; defendants were hesitant
to safeguard the consumers rights under the relevant provisions of law; written
reminder was also issued to Defendant No. 1, but of no consequences; claimant
is a cardiac patient and under special cardiac treatment, who also suffered
neck pain because of unjustified actions of defendants; claimant served a legal
notice (P-11) in pursuance to Section 28(1) of the Act, but no reply was
received; subsequently, on 31.03.2010, claimant got a letter from Secretary of
DHA, directing him to deposit an amount of Rs. 3,95,000.00/- on account of
development charges in four installments; cause of action accrued, when in
spite of receipt of legal notice defendants did not bother to reply.
2. In prayer clause, claimant had demanded
following reliefs:--
(a) The defendants may very kindly be issued
directions to level the plot and make it living/construction worthy or hand
over an alternate plot forthwith.
(b) The defendants may kindly be issued
directions to pay the claimant an amount of Rs. One crore
each as damages.
(c) The defendants may kindly be issued
directions to pay an amount of Rs. One Crore to the claimant on account of the
compensation for the responsible of land value of property of claimant is lower
than in surrounding areas.
(d) The defendants may kindly be issued
direction to take actions mentioned in Section 31 of the Punjab Consumer
Protection Act, 2005.
(e) The defendants may kindly be punished
under Section 32 of the Punjab Consumer Protection Act, 2005.
3. In pursuance to notices issued by this Court,
both defendants appeared and they submitted their joint written statement. The
preliminary objections taken were that no relationship of `Consumer and Service
Provider' exists between the parties; this Court has no jurisdiction because
the Act deals with moveable properties, whereas plot does not full within the
definition of a `Product' as defined by Section 2(J) of the Act. On facts it
was admitted that Ex-Lawyers Co-operative, Housing Society was merged into DHA
and that possession was handed over to claimant on the basis of his
undertaking. Most of the paragraphs of the claim were denied and about some no
comments were offered. Prayer was made for dismissal of claim.
4. Keeping in view versions of both parties, my
learned predecessor, on 26.08.2010 had framed following issues:--
1. Whether the claim is not maintainable
in its present form, if so, its effect? OPD
2. Whether this Court lacks jurisdiction
to entertain the claim of the claimant? OPD
3. Whether there exists relationship of
the consumer and service provider between the parties? OPC
4. Whether the defendants rendered
defective and faulty services to the claimant, if so, its effects? OPC
5. Relief
5. It is worth mentioning that before recording
of evidence an application was filed by defendants to decide the Issues Nos. 1
and 2 being preliminary in nature and same was dismissed vide an order dated
31.10.2011 passed by my learned predecessor. Against said order an appeal (FAO
No. 97/2011) was filed by defendants in the Honourable Lahore High Court,
Rawalpindi Bench Rawalpindi which was allowed on 22.05.2012. Honourable High
Court while setting aside the order of my learned predecessor had remanded the
matter to this Court with direction that after recording the evidence both
issues along with other would be decided.
6. In evidence,
claimant got recorded his statement as PW-1. In documentary evidence, he had
produced following documents:--
Ex. P-1 Affidavit for evidence
Ex. P-2 to P-4 Photographs of plot
Ex. P-5 Original allotment letter of plot
Ex. P-6 Original receipt of Payment as charges for site
plan/possession/mortgage of plot
Ex. P-7 Original receipt of Deposit of amount in Askari
Commercial Bank LTD
Ex. P-9 Copy of Site plan issued by DHA
Ex. P-10 Letter of request by claimant to
defendants for possession of plot
Ex. P-11 Copy of legal notice to defendants
Ex.P-12 to 13 Original Postal receipts
Ex. P-14 Photocopy of payment as charges for
possession which is same as P-6
7. On the other hand Defendant No. 2 appeared as
Dw-1. He had produced following documents in support of the version of
defendants:--
Ex. D-1 Original authority letter
Ex. D-2 Affidavit for evidence
Ex. D-3 Copy of undertaking by claimant
8. I have heard arguments of both sides and I
have also gone through evidence produced pro and contra by the parties besides
the examination of documents. My findings on issues are as under:--
ISSUES NOS. 1 TO
3
1. Whether the claim is net maintainable
in its present form, if so, its effect? OPD
2. Whether this Court lacks jurisdiction
to entertain the claim of the claimant? OPD
3. Whether there exists relationship of
the consumer and service provider between the parties? OPC
9. As all these issues are interlinked so I
proceed to decide the same together.
10. Mr. Rashid Mehmood Sindhu learned counsel for
defendants maintains that the Act provides relief against a `Product' which is
defined by Section 2(J) of the same, simple meaning of that is a moveable
property, therefore, plot allotted to claimant is not a `Product' hence it is
beyond the jurisdiction of this Court; when it is so then no question arises
for existence of relationship between parties as of a `Consumer' and `Services
Provider'; if dispute is not covered under the Act then the claim before this
Court is not maintainable. Learned counsel further argues that the meaning
provided for `Services' under Section 2(K) of the Act is somewhat different
from the definition of `Service' made by the Consumer Protection Act, 1986 of
India (hereinafter to be called Indian Act) hence precedents from Indian
jurisdiction shall not be binding on this Court.
11. On the other hand Malik Khalid Mehmood
claimant contends that defendants were under obligation to provide the
`Services' of a plot to claimant where construction had and has to be possible
hence when there is denial in this regard, the case is covered by the Act,
therefore, this Court has got jurisdiction to entertain and to decide this
dispute between the parties.
12. First of all I will like to decide the
question whether plot is a `Product' within the definition of the Act or not?
Section 2(J) says as under:--
`Product' has
the same meaning as assigned to the word `goods' in the Sale of Goods Act,
1930, and includes products which have been subsequently incorporated into
another product or an immovable but does not include animals or plants or
natural fruits and other raw products, in their natural state, that are derived
from animals or plants.
13. There is no dispute on this proposition that
under the Sale of Goods Act word `Goods' relates to only moveable property
whether in its independent capacity or being attached to any immoveable
property. I, in these circumstances, without further discussion have no
hesitation to hold that plot is not a `Product' within the meaning of the Act.
14. Next proposition before me is that whether
DHA is amenable to the Act or not. Undoubtedly DHA is a Body Corporate pursuant
to Defense Housing Authority Ordinance, 2005, which is being ran/administered
by its management in accordance with its By Laws as framed and registered under
the provisions of Co-operative Societies Act, 1925 and
Co-operative Societies Rules
1927, with the
object of purchasing/selling and consolidating
land by developing the same into a housing society for its members.
15. As the Act is a newly born baby in this part
of the world so in spite of my best efforts I was unable to find out any case
law on the above proposition from the honourable Courts of Pakistan. However,
there is a judgment directly on this point from Indian jurisdiction reported as
`Lucknow Development Authority vs. M.K. Gupta AIR 1994 SC 787. While discussing
the Indian Act, it was held that the provisions thereof have to be construed in
favour of `Consumer' to achieve the purpose of enactment as it is social
benefit oriented legislation. Some important lines are reproduced as under:--
"What
remains to be examined is if housing construction or building activity carried
on by a private or statutory body was service within meaning of clause (o) of
S. 2 of the Act as it stood prior to inclusion of the expression `housing
construction' in the definition of "service" by Ordinance No. 24 of
1993. As pointed out earlier the entire purpose of widening the definition is
to include in it not only day to day buying and selling activity undertaken by
a common man but even to such activities which are otherwise not commercial in
nature yet they partake of a character in which some benefit is conferred on
the consumer. Construction of a house or flat is for the benefit of person for
whom it in constructed. He may do it himself or hire services of a builder or
contractor. The latter being for consideration is service as defined in the
Act. Similarly when a statutory authority develops land or allots a site or
constructs a house for the benefit or common man it is as much service as by a
builder or contractor. The one is contractual service and other statutory
service. It the service is defective or it is not what was represented then it
would be unfair trade practice as defined in the Act. Any defect in
construction activity would be denial of comfort and service to a consumer.
When possession of property is not delivered within stipulated period the delay
so caused is denial of service. Such disputes or claims are not in respect of
immovable property as argued but deficiency in rendering of service of
particular standard, quality or grade. Such deficiencies or omissions are
defined in sub-clause (ii) of clause (r) of S. 2 as unfair trade practice. If a
builder of a house uses sub-standard material in construction of a building or
makes false or misleading representation about the condition of the house then
it is denial of the facility or benefit of which a consumer is entitled to
claim value under the Act. When the contractor or builder undertakes to erect a
house or flat then it is inherent in it that he shall perform his obligation as
agreed to. A flat with a leaking roof, or cracking wall or substandard floor is
denial of service. Similarly when a statutory authority undertakes to develop
land and frame housing scheme, it, while performing statutory duty renders
service to the society in general and individual in particular. The entire
approach of the learned counsel for the development authority in emphasizing
that power exercised under a Statute could not be stretched to mean service
proceeded on misconception. It is incorrect understanding of the statutory
functions under a social legislation. A development authority while developing
the land or framing a scheme for housing discharges statutory duty the purpose
and objective of which is service to the citizens. As pointed out earlier the
entire purpose of widening the definitions is to include in it not only day to
day buying of goods by a common man but even to such activities which are
otherwise not commercial but professional or service oriented in nature. The
provisions in the Acts, namely, Lucknow Development Act, Delhi Development Act
or Bangalore Development Act clearly provide for preparing plan, development of
land, and framing of scheme etc. Therefore if such authority undertakes to
construct building or allot houses or building sites to citizens of the State
either as amenity or as benefit then it amounts to rendering of service and
will be covered in the expression `service made available to potential users'.
A person who applies for allotment of a building site or for a flat constructed
by the development authority or enters into an agreement with a builder or a
contractor is a potential user and nature of transaction is covered in the
expression `service of any description'. It further indicates that the
definition is not exhaustive. The inclusive clause succeeded in widening its
scope but not exhausting the services which could be covered in earlier part.
So any service except when it is free of charge or under a constraint of
personal service is included in it. Since housing activity is a service it was
covered in the clause as it stood before, 1993"
16. Learned counsel for defendants as mentioned
earlier had referred the definition `Service' provided by Indian Act with a
view that said definition is different from the meaning of Services referred
under the Act. Before I answer this argument I will like to reproduce the
definition of `Services' offered under the Act. It is as under:--
"Services"
includes the provision of any kind of facilities or advice or assistance such
as provision of medical, legal or engineering services but does not
include.........
17. Section 2(o) of Indian Act about the
definition of `Service' is as under:--
"Service"
means service of any description which is made available to potential users and
includes, but not limited to, the provision of facilities in connection with
banking, financing insurance transport, processing, supply of electrical or
other energy, board or lodging or both, housing construction, entertainment,
amusement or the purveying of news or other information, but does not include
the rendering of any service free of charge or under or contract of personal
service"
18. What learned counsel for defendants wants to
establish is that in the definition provided under Indian Act, there is
specifically mentioned about `House Construction' which is missing in the Act. This argument appear to be misconceived. In fact under the
Indian Act, the word used `but not limited to' is of much importance. The
legislator by inserting these words has made the provision more clear that the
scope of the Act is much wider then the facilities/services provided by the
agencies/companies mentioned therein.
19. On the other hand, under the Act the words
"any kind" has also broader meaning and there can be no second
opinion that whenever there is a service or facility in any area of the life or
in relation to any trade or product provided to a consumer against a
consideration the matter shall fall within the ambit of the Act. By declaring
so I will again refer the Lucknow Development Authority's case (ibid) where it
was held that the provisions have to be construed in favour of `Consumer' to achieve
the purpose of enactment as it is social benefit oriented legislation.
20. In view of above I hold that DHA is
answerable to a Consumer with regard to its services and if there is any denial
to the services or facility, a Consumer has absolute right to knock the door of
the Court constituted under the Act and to seek remedy as provided therein. In
these circumstances this Court has the jurisdiction to entertain and to
adjudicate upon the dispute between the parties.
21. Finally coming to relations of Consumer and
Service Provider between the parties it too is answered in affirmative on the
reason that on getting a plot Claimant had also deposited development charges
of Rs. 1,10,000/- hence, he had hired the services for
a consideration which falls under Section 2(c)(2) of the Act and when it is so
there existed and in existence relations of Consumer and Services Provider
between parties. From another angle this relation is in the field. DHA had
agreed to provide a plot to the claimant being a member of society and when
this service came to an end by provision of a plot where construction was not
possible then it was a case of defective Services.
22. All above issues, therefore, are decided in
favour of claimant and against defendants.
ISSUE
NO.
4
"Whether
the defendants rendered defective and faulty services to the claimant, if so,
its effects?
OPC"
23. It is an admitted fact that claimant was a
member of Lawyers Co-operative Housing Society Rawalpindi (hereinafter to be
called LCHS) which he got in 1989. He had deposited an amount of Rs.1,10,000/- as cost of plot measuring 400-yards and further
Rs. 1,10,000/- as development charges. It was 16th January, 2006 when DHA and LCHS entered
into an agreement for amalgamation. Uncontroversial fact was and is that in
agreement DHA had accepted all responsibilities and liabilities. The relevant
portion of the agreement is as under:--
"AND
WHEREAS LCHS approached DHA 1 and DHA 1 agreed and showed its interest in
taking the land with all the existing rights, liabilities attached to the
extent of 591 Kanals & 14 Marlas and the assets, liabilities attached
thereto on the terms and conditions as set forth in this Agreement"
24. For reference it is added that this agreement
was not got exhibited by any of the parties however, its photocopy is available
on record. As it is an admitted document so even if it was not formally proved
I can rely on it for the purpose of just decision of the case.
25. LCHS finally merged into DHA 1 with all
rights and liabilities. It was 21.08.2009 when possession of Plot No. 49,
Street No. 4, Sector B-1 was given to claimant on his request and he also
tendered an undertaking (D-3) which was as under:--
1. That I am a owner of Plot No. 49,
Street No. 4, Sector II, DHA Islamabad.
2. That I want to take the possession of
my above plot to construct to my home where facilities like
water/gas/electricity etc. not available and I will not claim any facility
during to construction work from DHA.
3. That the statement as mentioned above
in my undertaking is true and correct to the best of my knowledge and belief
and nothing has been concealed.
26. Claimant asserted that this undertaking was
obtained by force. I do not give any importance to this version because
claimant is not an ordinary man but is a practicing advocate
having more than fifteen years standing at the relevant time. However, I can
confidently say that this undertaking shall not be a barrier if claimant
succeeds in his claim on the basis of other data.
27. I must mention here that when amalgamation
was made, thereafter, DHA again issued an allotment letter (P-5) to claimant
which was re-affirmation of his membership.
28. This is not disputed also that before taking
possession of plot claimant had no knowledge of its area of existence. This is
the reason that he deposited certain amount as mentioned in receipt (P-6),
which was for demarcation etc. Even under Condition No. 2 mentioned on the back
of allotment letter (P-5) it has been provided that after clearing the dues
liable to be paid against subject plot, demarcation and measurement of the plot
will be carried out in the presence of allottee. Therefore, nobody can say that
why before taking possession claimant did not raise a voice. It was thereafter,
when claimant started to make hue and cry. What dealing was given to him and
how DHA functionaries tried to redress his grievance i.e. evident from the
statement of sole witness of defendants? Most relevant answers given in
cross-examination made on Mr. Faisal Khan Niazi DW-1 are as follows:--
"It is
correct that at the time of deposit of the money i.e. 2.4.2007 till to-date,
the basic facilities such as road, street lights, gas, water etc. have not been
provided in Street Nos. 3 & 4 and its surrounding area. It is correct that
the area of aforementioned plots has been merged in DHA from the Lawyer's
Housing Society. I had also physically inspected the spot and had seen Plot No.
49, Street No. 4, Phase-I, Sector B-I, physically. It is correct that the soil
of this Plot No. 49 consists of mounds of sands, huge stones, boulders and the
area is in the shape of hilly area. It is correct that in its present stage of
the land, no house can be constructed thereupon. It is correct that in the area
taken over for merging from the lawyer's society, majority area has already
been provided all the basic facilities; by DHA. It is correct that due to this
none develop land, the market value of claimant plot, is not up to the mark, in
the prevailing market. It is correct that the claimant's plot is in his
possession. It is correct that as per rules, the plot provided by the DHA
should be "construction worthy" plot, and only then it would be
handed over to its allottees/consumers. It is correct that Lawyer's Housing
Society merged into DHA in 2006. It is also correct that since 2006, DHA has
not provided basic facilities for the construction of the houses in Street Nos.
3 & 4 and its surrounding area. It is correct that had all the facilities
been provided to the claimant, even his plot would have fetched higher a price.
It is correct that claimant had written several letters to DHA in order to
develop his plot and its surrounding area. It is correct that the DHA had asked
the claimant to pay the development charges that is why the claimant deposited
the requisite amount in DHA account. It is correct that in written reply before
this Court, we had written that DHA is "re-engineering" of Ex-Lawyers
Co-operative Housing Society (LCHS) was in progress and possession could not be
delivered before completion of re-engineering" of the Lawyer's Society. It
is correct that DHA has not till yet stared its
re-engineering in Street No. 3 & 4 and its surrounding area. It is correct
that DHA acquires land through purchase and further master develops it,
according to contours of the land. It is correct that DHA had also sought from
the claimant additional development charges. It is correct that the claimant
has suffered mental torture by making several visits to the DHA officers"
29. I am really shocked to see that what plot was
given to claimant. It is really a mountain or pieces of cliffs. This opinion
can be formed even by an ordinary man if he sees admitted photographs, which
through process of scanning are reproduced as under:--
30. The issue which was to be proved by claimant
has been proved by the defendants themselves while bringing in witness box
their sole witness.
31. DHA had taken all liabilities at the time of
amalgamation. These liabilities were undoubtedly including the provisions of
plots to all the members of LCHS. DW-1 had admitted in cross-examination that
as per rules the plot provided by DHA should be "construction
worthy", I am unable to understand after examination of photographs (P-2
to P-4) that how the plot given to claimant was a `construction worthy'.
Services of DHA were including the provision of plot where construction of a
house was possible and for doing so it was the duty of DHA first to make it
construction able by leveling the same on its own responsibility and then to
hand over its possession to the claimant. DHA cannot be given a blank cheque in
this regard who was and is bound to observe the rules and policy with
consistency. This is unfortunate that better sense never prevailed and
defendants continued to contest and defend their actions which now have been
proved to be of defective services.
32. Whatever has been discussed above in the
light of that I hold that DHA rendered defective and faulty services to
claimant and due to this reason claimant is unable till today even to place a
brick for the construction of his house. Issue No. 4 is, therefore, decided in
favour of claimant.
RELIEF
33. It was August-2009 when possession was handed
over to claimant and right now is the beginning of September 2012. Had claimant
been provided effective services by leveling the plot which had to be
construction worthy by DHA, claimant might have completed his house till today?
By negating his right in spite of his repeated requests and issuance of
reminders the poor fellow even could not place a foundation stone.
34. In 2009 what could be the expenses for
claimant for construction of a house when dollar price was about Rs.60/- which
is now about Rs.90/-. What were the prices of construction material at that
point of time and what are now? This is because and only because of unjustified
actions and denial of services by defendants that claimant is still without a
house on his plot. They cannot be allowed to play with the rights of their
members as per their wishes. I will like to reproduce again some relevant lines
of Lucknow Development Authority's Case (supra) which are:--
"The
importance of the Act lies in promoting welfare of the society by enabling the
consumer to participate directly in the market economy. It attempts to remove
the helplessness of a consumer which he faces against powerful business,
described as, `a network of rackets' or a society in which, `producers have
secured power' to `rob the rest' and the might of public bodies which are
degenerating into store house of inaction where papers do not move from one
desk to another as a matter of duty and responsibility but for extraneous
consideration leaving the common man helplessness bewildered and shocked. The
malady is becoming so rampant, widespread and deep that the society instead of
bothering, complaining and fighting for it, is accepting it as part of life.
The enactment in these unbelievable yet harsh realities appears to be a silver
lining, which may in course of time succeed in checking the rot"
35. The word Damage has also been defined under
Section 2(d) of the Act, which says as under:--
"Damage"
means all damages caused by a product or service including damage to the
product itself and economic loss arising from a deficiency in or loss of use of
the product or service"
36. On the basis of above definition I can safely
hold that as claimant could not start the construction of his house till today
because of defective services of defendants so he had suffered an economic
loss.
37. Under Section 31 of the Act, there are
various actions for which direction can be issued to defendants. For the
purpose of this dispute the most important relief provided is under clause (d)
and same is as under:--
"To do such
other things as may be necessary for adequate and proper compliance with the
requirement of this Act."
38. Of course, plot is not a product, so I cannot
direct the defendants to hand over an alternative plot. However a legitimate
direction can be issued to defendants for leveling the plot and to make it
construction worthy.
39. Claimant has also demanded an amount of Rs.
one Crore on account of compensation. He narrated this fact in his affidavit/
examination-in-chief (P-1) but in entire cross-examination defendants did not
challenge said, portion. Therefore under the settled principles of law it will
be presumed that defendants have accepted the plea of claimant.
40. To my mind as no details of damages have been
given so to award the whole amount will not be adequate and appropriate. By
taking all aspects and circumstances into consideration I deem it proper to
award an amount of Rs.25,00,000/- (twenty five lac) as
damages.
41. The ultimate conclusion is that claim filed
by claimant is accepted. In pursuance to Section 31 of the Act I issue an order
to defendants directing them to take following actions:--
(a) To level the Plot No. 49, Street No. 4,
Sector B-I, allotted to claimant and to make it
construction worthy without charging even a single penny from claimant within a
period of three months from today.
(b) To pay an amount of Rs. 25,00,000/- (twenty five lac) as damages to claimant within a
period of three months from today.
(R.A.) Claim accepted
