GHAZIABAD DEVELOPMENT AUTHORITY vs SHASHI SHEKHAR NATH MISHRA

BOTH these appeals arise out of the judgment and order dated 31.12.1996 passed by District Consumer Forum, Ghaziabad in complaint case No. 1427 of 1995. As both these appeals arise out of the same judgment, hence they are being taken up together and disposed of by a common judgment.

THE facts of the case stated in brief are that the complainant applied for a house in Nandgaon HIG Double Storey Scheme. THE cost of the house was Rs. 1,70,000/-. THE complainant deposited a sum of Rs. 17,000/- on 20.1.1990 as reservation amount. THE rest of the amount was to be deposited in three instalments and the possession was to be delivered upto June, 1991. THE complainant deposited all the instalments within the time. As the area of that house was less, therefore, the complainant applied for conversion of this house into another house of Govindpuram Scheme by letter dated 7.5.1991. THE complainant was allotted one house in Anukampa I. This application was accepted and allotment letter dated 20.6.1991 was issued and the cost of the house was Rs. 2,07,000/-. THE complainant had deposited a sum of Rs. 1,07,000/- on 24.8.1991 and a sum of Rs. 32,000/- was deposited on 30.8.1991. Thus the total amount was deposited. In spite of this deposit, the possession of the house has not been delivered so far. It is prayed that interest at the rate of 18% per annum be awarded on deposited amount as there is deficiency of service by the development authority. THE complainant is also paying Rs. 1,700/- per month as rent which should also be granted to him. The opposite party alleged in the written statement that penal interest has not been deposited as the amount which was due to be deposited on 10.1.1991 was deposited on 30.8.1991. Therefore, the entire amount was not deposited. He is also not entitled to get possession till the penal interest is paid. The house was not ready at that time but it is now ready for delivery of possession. The development Work is also going on at a very fast speed.

The learned District Forum, after considering the case of both the parties and perusing the evidence on record, came to the conclusion that there is deficiency in service, but refused to interfere with the enhanced cost of the house. It awarded 18% per annum interest on the deposited amount. It also refused to award payment of rent which is alleged to have been made by the complainant as there is no provision in the Act for doing so. A sum of Rs. 2,000/- was also awarded as interest and compensation. The interest was awarded from 1.9.1993 till the date of possession on the amount which was deposited by 30.8.1991. It was also provided that the interest which was payable as penal interest shall be adjusted from the interest to be paid by the development authority in terms of the Court order.

AGGRIEVED against this order both the parties have come in appeal and have challenged the correctness of the order passed by the learned District Forum. We have heard the learned Counsels for the parties. It has been argued by the learned Counsel for the development authority that the delay in delivery of possession had occasioned on account of the factors beyond the control of the development authority. According to learned Counsel, the contractor did not complete the construction within the period of time and there was stay order of the Hon''ble High Court. As far as delay in construction work by the contractor is concerned, the contractor is the agent of the development authority and if he has committed delay in completing the construction, then the development authority is required to pay damages on account of that delay. Therefore this argument is rejected. Hence the delay in handing over possession of the house on account of late construction is a deficiency in service and has been held in the case of LDA v. M.K. Gupta, III (1993) CPJ 7 (SC). This case law has been considered in a number of cases by this Commission in a bunch of appeals of Ghaziabad Development Authority starting from appeal No. 1504/SC/ 95, GDA v. Ramanand, and similar appeals, decided on 20th November, 1998. Thus we find that there is deficiency in service by not delivering possession of the house in time because it is an admitted fact that the possession was to be delivered within two years as mentioned in the brochure and also admitted in the written statement.

IN this case the possession was delivered on 5.10.1997. Therefore, the complainant is entitled to get interest at the rate decreed by learned District Forum from the date of deposit of respective instalments till the date of delivery of possession. It has been argued by the learned Counsel for the development authority that the interest has not been rightly awarded by the learned District Forum with effect from 1993. A perusal of the file will go to show that the amount was deposited by the complainant in January, 1990 for the house of Nandgaon Scheme but on the request of the complainant, the house was changed in another scheme of Govindpuram by application dated 7.5.1991. The allotment was done on 20.6.1991. Even the escalated amount of cost was deposited by the complainant on 30.8.1991. We find that after change of the house in another scheme, the instalment was deposited on 30.8.1991. As the house was to be delivered possession of within a period of two years but the same was not delivered even after a period of two years, therefore, interest will have to be paid from the respective dates of deposits of instalment. Had the possession been delivered within the time indicated in the brochure, then the interest of amount would not have been payable. The development authority had been utilising this amount throughout the period which remained in its possession. Therefore, they are liable to pay interest from the date of respective deposits. The learned District Forum has not therefore committed any error in awarding interest in the form of loss from 1991. The learned Counsel for the complainant has argued that the penal interest cannot be imposed by the Ghaziabad Development Authority for delay in payment of the instalments. There is a direction in the brochure that if the amount is deposited beyond the time allowed, then penal interest shall be payable. Therefore, on this ground also the complainant is liable to pay penal interest to the development authority. Therefore, this part of the judgment of the learned District Forum is also perfectly right and needs no interference. Learned Counsel for the complainant has argued that the damages awarded have been very much on the lower side. We find that cost and damages have been awarded at Rs. 2,000/-. The possession was to be delivered in the year 1991 but it was given after six years in the year 1997. The complainant was put to harassment for a period of six years. Therefore, the complainant should have been awarded damages of higher amount. Therefore we find that the finding of the learned District Forum is liable to be disturbed in this point. Out of this amount if we deduct a sum of Rs. 1,000/- as cost, then only Rs. 1,000/- remains under the head compensation which is very less. The damages should have been awarded, in our opinion, for a sum of Rs. 8,000/-. Thus the decree and judgment of the learned District Forum is liable to be modified accordingly.

THUS the appeal filed by the Ghaziabad Development Authority is to be dismissed while the appeal filed by the complainant is liable to be allowed in part. ORDER Appeal No. 76/SC/1997 filed by the Ghaziabad Development Authority is dismissed while Appeal No. 126/1997 filed by the complainant is partly allowed. It is held that besides Rs. 1,000/- as cost, the complainant will be paid a sum of Rs. 8,000/- as compensation. The order and judgment of the learned District Forum shall stand modified accordingly. The complainant will also get cost of both these appeals of Rs. 2,000/-. Let compliance of this order be made within six weeks from the date of this order. Let copy be made available as per rules to the parties. Ordered accordingly.