DINESH TIWARI vs Kanpur Development Authority

THE complaint has been filed under Section 17(1)(a) of the Consumer Protection Act, 1986 (hereinafter called the Act) praying for relief of award of Rs. 8,94,324.30 towards compensation in lieu of deposited amount, Rs. 7,185/- towards enhancement charges for building plan, a sum of Rs. 3,39,000/- towards difference in the cost of construction, and a sum of Rs. 7,50,000/- for mental agony and physical pain caused by the opposite party. THE complaint was filed with the averment that the opposite party, Kanpur Development Authority, has not handed over the possession of plot No. 813, ''Q'' Block, Kakadeo Scheme 1, Sharda Nagar, Kanpur for the last 11 years which caused financial hardship and mental agony as also loss of interest over the amount deposited.

IT is averred that in accordance with the public notice dated 22.3.1989, aforesaid plot was auctioned on 29.3.1989 and the complainant was the higher bidder. He had deposited one-fourth of the amount of the total sale price. IT has also been averred that he was ready to make the full payment and also requested the K.D.A. to intimate him the other charges payable before the registration of the lease deed of the plot. Subsequently intimation was made for depositing the sum and the same was done. Consequently the sale deed was registered on 6.4.1993 after lapse of more than 11 months. Building construction over the plot in question was also sanctioned by the K.D.A. but before that it was alleged that prior to the registration of the sale deed a Civil Suit No. 803/1991, Sunil Yadav v. Kanpur Development Authority, challenging the ownership of the plot and seeking regularisation of the same in the name of the plaintiff was filed in the Court of ACCM (IV), Kanpur. IT was averred that because of the apathy shown by the K.D.A. certain requisite slips were not taken in the regular suit proceedings and then the complainant referred the matter to the Lok Ayukt and in consonance thereof alternative plots were offered but the same was not acceptable. Ultimately vide letter dated 28.9.1997, it has been averred, that the complainant proposed an alternative plot in the scheme of C-1, Indira Nagar, ''K'' Block, Kidwai Nagar, but the K.D.A. did not allot the same. IT was further averred that the complainant was deprived of the benefits and hence the complaint was filed. In the written statement, besides raising legal pleas, it was averred that in view of the judgment dated 3.2.1999 in Civil Suit No. 830/1991, the possession of Sri Sunil Yadav over the alleged plot could not be disturbed and the opposite party, K.D.A. is left with no option but to refund the entire amount deposited with interest. It was so intimated but the same was not accepted and the demand was continuously made by the complainant for possession of plot No. 813, Block ''Q'', Kakadeo Scheme I. Even direction was made for refund of the deposited amount along with interest as per the Board''s decision but the same was not accepted. Consequently the plea was that the complaint is not maintainable.

During the course of arguments, written arguments were also filed, which were ordered to be kept on record.

TWO preliminary objections were raised by the opposite party, one to the effect that since the dispute relate to property allotted to the complainant in an auction proceeding, complaint is not maintainable in view of the decision given by Hon''ble N.C.D.R.C. in II (1995) CPJ 3 (NC) Ashok Tayal v. Delhi Development Authority, on 12.1.1995. We are not impressed with this objection, obviously for the reason whether the plot is allotted under the scheme or is purchased in an auction for the allotment of a plot conducted by the K.D.A., the result is one and the same that in both the cases that it will result in the entitlement in the plot. The only difference is that in one case one will be the purchaser of a plot as per the scheme and in another category one will become the auction purchaser. The follow up actions will be in view of the conditions of the auction with regard to the payment of money and so is the case with a person being allotted a plot in a scheme. If the purchaser makes out a case of deficiency in service, the dispute will be taken up by way of a consumer dispute. Another preliminary objection has been that since the complaint has been filed in the year 2002 and in respect of the allotment made by the opposite party in the year 1994 through an auction, the complaint is barred by limitation. Reliance was placed on Kerala Agro Machinery v. Bijoy Kumar Roy, II (2002) SLT 267=(2002) Vol 3, SCC, page 165, in which it has been held that the complaint for any relief under the Consumer Protection Act, 1986 is not maintainable beyond the statutory provisions provided in the Act. With a view to support this argument further, the learned Counsel for the opposite party also placed reliance on Food Corporation of India v. M/s. Babu Lal Agarwal, vide Hon''ble Supreme Court''s judgment dated 5.1.2004 in I (2004) SLT 475=Civil Appeal No. 3484-3485 of 1997 in which it has been found that it is the duty of a ''Court'' to check at threshold whether the case is barred under the limitation or not.

THERE is no denying of the legal position in view of Section 24A(i) of the Act. It is clear that the State Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. However, its Sub-section (2) specifically provides that a complaint may be entertained after the period specified in Sub-section (1), if the complainant satisfies the State Commission that he had sufficient cause for not filing the complaint within such period. The pertinent question to be decided is as to whether the cause of action had arisen and if period of two years expired from the date of accrual of cause of action, the complainant may satisfy the Court of the sufficient cause for not filing the complaint within the said period. In the instant case admittedly allotment of the plot was made in the year 1989 but the lease deed was executed by the opposite parties on 6.4.1993. It is admitted case of the respondent/opposite party that only thereafter at the time of giving possession of the allotted plot, it had come to the notice that there was civil injunction suit wherein K.D.A. was stopped from handing over possession of the property. In this case also it is clear that when the demand for depositing of the money was made by the K.D.A. vide letter dated 7.8.1991, the complainant deposited a sum of Rs. 84,571/- towards pre-paid lease rent and charges for additional rent. It is also clear that the lease deed of the said plot was executed on 6.4.1993, and the building plan to construct house was sanctioned vide letter dated 8.10.1993 of the K.D.A. It is further clear that the complainant had submitted letters dated 14.8.1992, 16.9.1992, 30.11.1992, 15.1.1993 and 18.2.1993 for handing over the possession of the plot after requisition from the occupier but no action was taken by the K.D.A. Even it is clear that the complainant submitted letter dated 25.7.1995, 14.8.1995, 12.9.1995 and 11.12.1995 to provide an alternative plot or refund the total amount deposited and the total expenses incurred with interest along with other admissibilities, but even no need was paid by K.D.A. It is further clear that judgment in Appeal No. 188 of 1997 was delivered on 3.2.1999. This complaint has been filed in the year 2000. Further it is clear that the decision for refunding the deposited amount was taken by the K.D.A. vide its Board''s decision dated 17.2.2000. Thus for all practice purposes, this was the date finally settling the claim from the side of K.D.A. and this could be the period to be termed as the date for accrual of cause of action. Complaint is well within the time and the contrary argument about the complaint being barred by limitation is not worth accepting. In the instant case, however, the facts are that on plot No. 803, ''Q'' Block, Kakadev. Scheme 1, Sharda Nagar, Kanpur in view of the judgment delivered in Appeal No. 188 of 1997 decided by the Additional District Judge, IX, Kanpur Nagar vide its judgment and order dated 3.2.1999 is not liable to be interfered and the K.D.A is not entitled to disturb the possession of Sri Sunil Yadav and therein it has been further directed for regularisation of the possession of Sri Sunil Yadav and for deciding his representation. This order till date is final. The grievance may be that the K.D.A. did not contest the case properly as vouched by the complainant but till another judgment and order is passed by the Hon''ble High Court in a writ the opposite party, the K.D.A. cannot disturb the possession of Sri Sunil Yadav as held in the appeal.

THE only option now left with K.D.A. is to refund the amount deposited by the complainant for the purchase of the plot. THE argument of K.D.A. that it has no liability to refund the amount spent in registration of the plot is not acceptable. It was not open to the K.D.A. to proceed further with the auction proceedings of the plot whose title was defective and whose auction proceedings could not be initiated. Complainant acted on the advertisement and participated in the auction proceedings.

THUS, in our view whatever money has been deposited towards the aforesaid land being allotted by the K.D.A. to the complainant, he is entitled for its refund along with interest. The documents reveal that throughout the complainant has not been at fault. He has been trying hard for his rights accruing in view of his being the highest bidder in the auction proceedings. He has been dragged fruitlessly in this proceeding. The mental stress and strain on a consumer is obvious in such a situation. In our view the complainant is entitled for getting interest at the rate of 18% per annum from the date of the filing of complaint in view of the case of Balbir Singh v. Ghaziabad Development Authority.

Thus the complaint is liable to be decreed. ORDER The complaint succeeds for Rs. 2,07,352/- along with interest at the rate of 18% per annum from the date of filing of complaint. The complainant is not entitled for any other reliefs. In the circumstances of the case, the parties are directed to bear their own costs. Let copy as per rules be made available to the parties. Complaint allowed.