CHANDRIKA PRASAD vs Lucknow Development Authority

THIS is an appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter called the ''Act'') against judgment and order dated 8.12.1999 passed by District Consumer Forum II, Lucknow in Complaint Case No. 312 of 1999.

THE facts of the case in brief are that the mother of the appellant was registered with the respondent for a plot by depositing Rs. 4,000/- @ Rs. 320/- per sq. mt. Though it was known to the appellant''s mother that a plot of land was drawn in her name, no notice was issued to her till 1.9.1996. As against the cost of the said of Rs. 1,08,900/- the mother of the appellant had deposited Rs. 22,113/- 1990. Further deposits were not made as in the year 1990 the mother of the appellant came to know that the entire scheme was under dispute and as such physical possession was not possible. However, in the year 1993 the mother of the appellant died leaving her son, appellant, as legal heir and successor. In the year 1995 during litigation the appellant had also deposited Rs. 25,000/-. In the year 1997 the litigation over the plot was finalized and as such the development of the scheme started in the year 1997. Meanwhile, it was averred, the mutation proceedings was made by L.D.A. in the name of the appellant in place of her mother, after which he deposited Rs. 45,000/-. In the year 1998 the appellant approached for giving possession and executing the lease deed in the name of appellant. The respondent then issued a notice to the appellant to deposit a further sum of Rs. 1,83,286/- in place of the balance amount of Rs. 16,781/-. On an application by the appellant, Vice Chairman of the respondent No. 2 passed an order and directed to deposit Rs. 1,41,931.50 within 31.3.1999. Hence a complaint was lodged with the District Forum.

In the written statement the opposite party admitted issuance of allotment letter. It was averred that in order not to pay interest on the delayed payment of instalments, the complainant has said that he has not received the allotment letter. It was also accepted that the Hon''ble Court had issued stay order. It was also accepted that penal interest component was included in the amount indicated to be deposited vide letter dated 10.2.1998, but 50% of the penal interest was waived off and thus a sum of Rs. 1,41,931/- was payable by the appellant.

THE learned District Forum after perusing the evidence on record and hearing the submissions of the parties Counsel passed the impugned order. Aggrieved the complainant has come in this appeal.

WE have heard the arguments of the complainant/appellant as also Counsel for the respondent. The only point involved in the instant case is as to whether the impugned order is sustainable in the eyes of law whether the complainant can be saddled with the additional payment by way of penal interest for not making the instalments. In our considered view the order of the learned District Forum is not sustainable in the eyes of law. In the instant case it is clear that the appellant was allotted plot No. 2/93/B in Priya Darshani Yojna, Sitapur Road, Lucknow and as per terms and conditions of the contract, appellant was under obligation to make payment of 6 instalments each for an amount of Rs. 13,113/-. Subsequent to the allotment in the instant case the first instalment of Rs. 13,113/- was deposited on 11.12.1989 with the respondent and after that a sum of Rs. 5,000/- was also deposited on 26.12.1990 towards part payment of the second instalment. However, subsequently after coming to know the fact that litigation was going on in respect of the said scheme and the very existence of the scheme in question was doubt subsequent deposits were not made. It so happened, that in the meantime initial allottee, who happened to be the complainant''s mother died and in the name of her mother the appellant again deposited Rs. 5,000/- on 26.12.1990. During litigation of the proceedings the appellant also deposited a sum of Rs. 25,000/- on 15.9.1995 and when the litigation of the land in question was finalised the appellant deposited a further sum of Rs. 25,000/- on 29.9.1997 and another sum of Rs. 20,000/- of 13.10.1997.

IN the instant case material available on record show that one Chandra Kishore Rastogi preferred a S.L.P. before the Hon''ble High Court of Judicature at Allahabad which was numbered as 1235 of 1993 which was dismissed on 20.4.1993. It appears that after coming to know of this fact the complainant moved an application for mutation in the year 1997 and in compliance of the mutation proceedings a letter dated 30.4.1997 was served on the complainant. IN pursuance of the said letter an application was moved by the complainant when the opposite party demanded enhanced amount of Rs. 1,83,280/- whereas the total cost of the allotted land was Rs. 1,04,900/-. Obviously in the background of these facts the complainant was justified in differing the payments, as a reasonable apprehension in the mind of the appellant could lurk that the scheme is under dispute and he may not even ultimately get the possession of the property inspite of allotment. Thus the complainant was justified in depositing the instalments after coming to know that the litigation has finally ended. IN these circumstances obviously it could well be inferred that there is no voluntary violation of the terms and conditions of the allotment clause in not depositing the instalments in time. Even if for the sake of arguments and so argued by Mr. Singh, learned Counsel for the respondent is accepted, and even if the entire deposits were so made by the complainant/respondent, no registration of the plot in question could have been done much less delivery of possession as there was stay order by the Hon''ble High Court. That being so, the claim demand as made by L.D.A. has no legs to stand. However, in the instant case it has come to notice that over and above the initial allotted plot, some more area of the plot has been allotted. Obviously for the excess land being allotted, the L.D.A. will be entitled to charge the cost on the rate which was so initially offered. There is no scope for charging penal interest on the excess land. IN our view thus the impugned order needs modification to that extent ORDER The appeal partly succeeds. The order of the learned District Forum is modified to the extent that cost be charged for the additional area at the same rate on which it was initially offered. It is, however, directed that the appellant shall appear before the Secretary, Lucknow Development Authority for payment of extra land as measures. On calculation if it is found that full deposits were not made of the earlier plot allotted, then in that contingency the L.D.A. shall be entitled to charge interest at the rate of 10% per annum on the balance payment not made initially. IN case that demanded money is deposited within one month, registration will be done by L.D.A., subject to compliance of other necessary formalities. Parties are directed to bear their own costs. Appeal partly allowed.