The Tamil Nadu Housing Board & Anr.       ... Appellants
Vs.
A.V.Ramakrishnan                                   ... Respondent

      This is an appeal against the order dated May 5, 1992 passed by the State Consumer Disputes Redressal Commission, Tamil nadu at Madras in O.P. No.61 of 1992 by which the complaint filed by the present respondent A.V. Ramakrishnan against the present petitioners, Tamil Nadu Housing Board and its Executive Engineer was allowed and the Opposite Parties were directed to allot plot No.1080-A in K.K. Nagar to the Complainant.

      The facts as appear from the records are that the complainant who is a government servant applied to the Tamil Nadu Housing Board (for short the Board) for allotment of a HIG plot in the  Velachery scheme on 6th November, 1991. He pid Rs.20/- towards cost of application form and Rs.100/- towards registration fee. The draw was held on 31st January, 1992. The complainant found that his name was not included in the list of names prepared for the draw. The complainant wrote to the opposite parties but did not receive any reply. Thereafter he filed the complaint charging the Opposite Parties with deficiency in service for not including his name and application No. in the draw. He claimed for allotment of a plot and also compensation.

      The Housing Board filed a counter which was adopted by the second opposite patry i.e., the Executive Engineer, Special Division-VI, Tamil Nadu Housing Board. Their contention was that the complainant is not a consumer since no allotment has been made in his favour. It was further pleaded that due to inadvertence while carrying cut the computer processing, the name of the complainant was left out and hence his name was not included in the draw. It was admitted that the complainant had filed an application for allotment of a plot. It was further pleaded that the Housing Board has undertaken  housing schemes at Avadi and Ambattur and the Complainants name would be included in the draw for those scheme.

      The State Commission held that the Board committed an error by not including the nme of the complainant in the draw of plots. hence there has been gross deficiency of service on the part of the Opposite Party. It was represented before the State Commission on behalf of the Opposite parties that all the plots in Velachery scheme have already been allotted and hence there was no scope for allotting any plot in that scheme to the Complainant. However, the counsel for the opposite parties filed a memo stating that plot no.10000 at K.K. Nagar and another plot bearing No.52400 at Annanagar were available for being allotted as per the records. in view of the said memo and its finding referred to above, the State Commission issued the direction as mentioned in the beginning of this order.

      The opposite parties claim to be aggrieved of the order of the State Commission and have come before this Commission by way of this First Appeal.

      We have heard the  learned counsel of the parties and have gone through the records. in view of the judgement of the Supreme Court delivered on 5/11/1993 in Lucknow Development Authority Vs. M.K. Gupta, Civil Appeal No.6237 of 1990. It is no longer in dispute that when a statutory authority like Lucknow Development Authority, Delhi Development Authority and similar authorities develop land or allot a site or construct a house for the benefit of  a common man it is as much service as by a builder or contractor.

      The main argument of the learned counsel for the Appellant is that the Respondent had only applied for allotment of a site for building a house and has paid only registration fee and therefore, at the most he was only entitled to consideration of his application and as  no allotment of any site has been made, whatever the cause may be he is not a consumer. In our opinion, this argument has no force. The Words "service of any description which is made available to potential users" came for consideration before the Supreme Court in M.K. Gupta case (Supra) the Court remarked :

      Therefore if suchj 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 convereted 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 or any description".

      Therefore, the Respondent-complainant who had applied for allotment of a building site will be covered by the expression "potential user". Therefore it is futile to argue that because no allotment of plot had been made in favour of the complainant he can not be deemed to be a consumer as defined in the Consumer Protection Act. As his name was not included in the draw the appellant-board will be held to be deficient in the rendering of service. "Deficiency" has been defined in Section 2 (I) (g) of the Act. Only the latter part of the definition is relevant for the purpose of this order. That portion reads :

"has been undertaken to be performend by a person in pursuance of a contract or otherwise in relation to any service".

      The Respondent Complainant had paid the cost of the application from as well as the registration fee. The appellant board has to be deemed to have undertaken to include the name of the complainant for the draw of lots for allotment of a plot in fact the argument of the learned counsel for the Appellant-board is also to the effect that the applicant was also entitled to consideration of his application. However, his application has not been considered at all because his name was not included in the draw. It is not the case of the Appellant-board that there was any defect in the application on account of which it was rejected.

      The learned counsel for the appellant further argued that some duty was also cast upon the Respondent-complainant consumer to verify whether or not his name had been included in the draw or not. The respondent complainant has started in the complint that he had scrutinised the list of applicats registered under Government Employees Quota within which quota the complainant had applied and  also other quotas and to his utter disappointment and dismay found that his name was not included in the list and when the Housing Board. Employees present in the spot were contacted to find out why his name was not included in the list no proper reply was forthcoming. There is no reason to doubt this version of the complainant. He must have pointed out the non-inclusion of his name in  the list to the Housing Board Employees and it is common knowledge that all ssuch complaints are not generally heeded by the officials. Even if the aboveversion of the Complainant is not belived then it only means that Complainant did not scrutinise the list as exhibited by the Board. In our opinion , he was not under any duty to scrutinise the list. The person who had prepared the list of the persons who were to be included in the draw was under a duty to check and ensure that all the names have been duly included in the list. thus the only inference that can be drawn is that the person who prepared the list was negligent in discharge of his duties.

      It was next argued by the counsel for the Appellants that the respondent is only entitled to some damages on acount of non-inclusion of his name in the aforesaid list. In view of the newly added clause (e) to Section 14 (I) of the Act the Forum constituted under the Act can ask the Opposite Party to remove the defects or deficiency in the service in question. A fresh draw cannot now be ordered and therefore, the State Commission was justified in directing the Board to allot to the complainant a site which might be remaining unalloted. For this purpose the State Commission asked the Opposite Parties to file a memo and it was stated in the memo so filed that plot no.1080-A at K.K. Nagar and plot No.524 at Arignar Anna Nagar as per record available in the Housing Board were available for being allotted. The State Commission by its impugned order directed that plot no.1080-A in K.K. Nagar should be allotted by the Party to the Complainant.

      Here we may mention that in the memo of appeal the Appellants have taken objection that the power of allotment of the above two plots does not lie with the Tamil Nadu Housing Board. The State Commission has taken note of that contingency and in para no.8 it has been mentioned by the State Commission as follows :

"It is pointed out by the learned Counsel for the complainant that sometimes, plots which are shown as available according to Housing Board records may have been allotted by the Government. We therefore direct that should be above two plots have been already allotted by the Government and hence not available for allotment to the complainant as directed herein, it will be open to the complainant to move this commission for such further directions to the opposite parties as may be necessary".

      It may not be out of place to mention here that the memo filed by the Opposite Parties before the State Commission in the page 40 of the paper book. It is nowhere mentioned in it that the above plots are to be allotted by the State Government or have to be disposed of through sealed offer as per the Government order No. MS-871 Housing and Urban Development Department dated 27th May, 1991 as mentioned in the memo of appeal.

      Lastly it was argued that in the complaint the Complainant has opted for allotment of a house site in Velechery Scheme (for which scheme he had applied) or to pay a sum of Rs.1.00 lakh as compensation for deficiency in service and therefore the State Commission was not justified in ordering the allotment of Plot covered under by some other scheme. We are not impressed by this contention. All the proceedings before the State Commission were taken in the  presence of the parties when the Appellants filed the memo about the available plots. It must be presumed that the Respondent-Complainant had agreed to the allotment of a plot in some other scheme. We have not been able to understand why the Board is agreeable only to pay compensation to the  Respondent-Complainant and not to allot one of the plots which is vacant. The Respondent-Complainant is not asking for the plot free of cost and he will have to pay for it like any other allottee. Therefore, this argument of the Appelants is liable to be rejected.

      For the reasons, given above, we do not find any force in the present appeal and dismiss the same with costs which we assess at Rs.1,000/-.