Heard learned counsel for both the parties.

2.        Captioned complaint  is filed u/s 17 of the Consumer Protection Act, 1986 (hereinafter called the ‘Act’ in short) by the complainant against the opposite parties for settlement of claim to the tune of Rs. 24,01,737/- and also to register the land to the tune of 3250 sft. and for delivery of possession thereof.

3.        The case of the complainant in nutshell is that the opposite parties have floated a scheme under the name and style of “Plotted Development Scheme at Nimidihi” at Paradip, Jagatsinghpur in the year 2000. The complainant being  desirous of purchasing an HIG plot measuring 3250 sft. applied for the plot and also deposited the cost of the plot for Rs. 1,44,000/-  as well as Rs. 2500/- towards registration charges. In the said brochure, it has been stipulated that Rs.40,000/- Earnest Money has to be  deposited. The complainant has  deposited Rs. 42,500/- on 27.2.2001 out of which Rs. 40000/- is towards Earnest Money Deposit and Rs. 2500/- towards registration fees. Vide Annexure-2 series, the complainant has paid Rs. 1,46,500/- on different occasions. On 22.10.2001, lottery was drawn and a plot was allotted to the complainant. It is alleged inter alia that the complainant approached the opposite parties time and again to handover the possession of the plot and at the time of delivery of possession,  it was found that the plot No. 14(C) measuring 2843 sft. instead of 3250 sqft was allotted. The complainant protested but the opposite party no.2 assured the complainant to make adjustment by giving land measuring 407 sft. more in order to fulfil the total area of 3250 sft. Thereafter, on many occasions, the complainant approached the opposite party, but has failed to get any result. Therefore, the complainant filed the complaint petition.

4.        The opposite party no.2 filed written version stating that they have floated the scheme inviting applications. It is further averred that due to passing of high tension line over the site, an area of 2843 sft. was allotted to the complainant against the  allotted area of 3250 sft. The allegation of assurance to give further area of 407 sft is not given by the opposite party. It is also averred that for registration of lease deed in favour of the complainant, the complainant has to submit the draft lease deed neatly typed/printed on requisite stamp paper before the authority for execution of the lease deed. Since the complainant has not submitted the same although the opposite party is ready to execute the document.

5.        The opposite party further averred that unless the draft lease deed on requisite stamp paper is submitted by the complainant, as per Annexure-A execution of the lease deed cannot be made by the opposite party. The opposite party is ready for execution of the lease deed, but the complainant has made delay by not giving draft lease deed. Due to such negligence of the complainant, there is delay in execution of the lease deed. However, it is submitted that the allotment of 3250 sft. could not be provided due to paucity of land over and above the scheme. There is no discrimination between the allottees because they have deducted the area of each of the allottees.

6.        After hearing both the parties, we find two issues to be decided.

              (I)  Whether the complainant has proved the deficiency in service on the part of the opposite party.

              (II)     Whether the complaint is maintainable.

ISSUE NO.I

7.        So far Issue No.I is concerned, the complainant has filed evidence on affidavit and the documents. The Brochure is marked as Exhibit by the complainant vide Annexure-1. Similarly, the complainant has proved Annexure-10 which clearly shows that for plot having 3250 sft., the cost of the land is Rs. 1,44,000/- and the registration fees is Rs. 2500/-. The fact pleaded by the complainant has to be proved by the complainant. However, the area of 2843 sft. has been handed over to the complainant. When 3250 sft. has been demarcated, but the opposite party allotted only 2843 sft. This is clear negligence on the part of the opposite party. To explain the same, the opposite party filed evidence on affidavit stating that due to some circumstances, they are ready to deliver 2843 sft. instead of 3250 sft. The opposite party has not explained as to how this 3250 sft. was floated without knowing the future complications with regard to the amount of area allotted. They have also not explained when the proposal for electricity came for carrying high tension line over this area.

8.        When it is admitted that the plot measuring area of 3250 sft. was allotted but 2843 sft. land was available although registration fee and cost of 3250 sft. has been received by the opposite party from the complainant, there is sure  deficiency in service on the part of the opposite party.

9.        Besides, we also find that learned counsel for the appellant wants to justify that corner plot being given to the complainant, there will be 10% extra payable by the complainant to the opposite party, the same amount can be adjusted even if less area is allotted to the complainant. We are not concerned with the extra benefit but we are concerned with the deficiency in service with regard to the plot promised to be given.

10.     In view of the aforesaid discussion, we find that the complainant has proved the deficiency in service on the part of opposite party. Issue no.I is answered accordingly.

ISSUE NO.II

11.     With regard to the maintainability of the complaint, when payment has been made in full and less  area is allotted,  there is cause of action to file the complaint and thus, the complaint is maintainable. In such circumstances, when there is deficiency in service on the part of opposite party proved the complainant is entitled for compensation. No doubt, the area of 407 sft. having been not provided, we are of the view that the market rate of such area should be payable to the complainant by the opposite party. The amount already received by the opposite party is Rs. 1,46,500/- for 3250 sqft. So the amount charged for the areas  beyond 2843 sft. should also be refundable to the complainant and the complainant must produce the draft lease deed to the opposite party so as to enable the opposite party to execute the lease deed for the area already available should be handed over to the complainant immediately after the execution of the lease deed. It is revealed from the evidence of complainant that for this act of O.P. has got mental agony and harassment.

12.     In view of above discussions, the complaint is allowed and we direct that

(a) the opposite party to remove the deficiency in service by making payment of consolidated amount of Rs. 10,00,000/- (Rupees Ten Lakhs) to the complainant for 407 sqft. Area not allotted. On payment of such amount, the complainant would produce the draft lease deed to O.Ps who would execute the same and handover possession of 2843 sqft. already allotted immediately after execution of the deed.

(b)  The opposite party should also pay Rs. 2,00,000/- (Rupees Two Lakhs) as compensation to the complainant towards mental agony and harassment.

(c)  The opposite party is also directed to pay Rs. 50,000/- Rupees Fifty Thousand) to the complainant as litigation cost.

All the above compliance be made within 45 days failing which amount will carry  interest of 12% from the date of  allotment of 2843 sft. till  the date of payment.

13.     The Complaint Case is disposed of accordingly.

           DFR be sent back forthwith.

           Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.