GHAZIABAD DEVELOPMENT AUTHORITY vs SUJIT CHOWDHURY

THIS is an appeal under Section 15 of the Consumer Protection Act (hereinafter called the ''Act'') against the judgment and order dated 22.9.1987 passed in Complaint Case No. 1161 of 1995 by the District Consumer Forum, Ghaziabad.

THE complaint was initially preferred under Section 12 of the Act by the complainant with the averments that in Plan No. 539 Code 12A, Akansha II, an application was made by the complainant for allotment of a house and as prescribed, different instalments were deposited which were detailed in Para 2 of the complaint and even thereafter the increased amount of lease rent was also deposited which was detailed in Para 4 of the complaint. However, the possession on one ground or the other was not delivered and even no heed was paid to the request of the complainant by the appellant, Development Authority, for correcting the defects in the house relating to the basic amenities legally available to the complainant. The appellant, Development Authority, on the other hand in the written statement admitted the factum of the application by the complainant for allotment of the house under the scheme and depositing of the money but the plea taken was that initially the cost of the house was Rs. 2,15,000/- which was subsequently increased to Rs. 2,52,000/- and the period of delivery of the possession shown as two years was only tentative and the delivery of possession could not be made because there was a stay order granted by the Hon''ble High Court of Allahabad for the period 24.4.1991 to 16.12.1993. As such the complainant, it was asserted, was not entitled for interest. It was stated during the course of arguments that the earned District Forum, after obtaining the report of the Commission (after local inspection and the report of the Commission) (page 13 C) found favour with the allegation of deficiency regarding civil amenities in the house in question whose estimated cost was assessed at Rs. 45,000/- by the Commission. The learned District Forum after perusing the complaint and the written statement as well as Commission''s report and hearing the submissions, passed the impugned order.

Aggrieved against the same, the present appeal has been preferred.

WE have heard Mr. Ram Raj, Advocate assisted by Sri Sarvesh Kumar Sharma on behalf of the appellant as well as Mr. S.K. Sharma, Advocate, learned Counsel for the respondent/complainant. WE have also perused the grounds of appeal, heard oral submissions as also perused other material available on record. The first submission, with a view to criticise the impugned order, made by Mr. S.K. Sharma, learned Counsel for the appellant, has been that the learned District Forum, Ghaziabad wrongly exercised the jurisdiction in passing the impugned order as it reveals that the same has been passed in a cursory way and mechanically without any application of mind on the demerits of the complaint. In this connection it was argued that the complainant had applied for a house in plan No. 539, Code 12A, Akansha II and he was absolutely bound by the terms and conditions floated for the scheme. The possesion could not be delivered in time because of the fact that some of the contractors did not complete the development work and some of the original land owners had obtained a stay order as referred above. This situation not being under the control of the appellant, the finding of deficiency in service should not have been recorded. It was also submitted that the period of possession of two years was only tentative. Further it was submitted that the rate of interest awarded at the rate of 18% is too excessive and penal in nature and no substantial ground was unfolded for award of interest at such a high rate by the learned District Forum in the impugned order. It was further submitted that the possession, in spite of the fact being offered in the year 1993, was not taken by the complainant and as such the penal interest awarded from 1.1.1994 till the date of possession was uncalled for.

MR. S.K. Sharma, learned Counsel for the respondent/complainant on the other hand with a view to support the impugned judgment, countered the arguments that there was no purposive delaying tactics by the complainant in taking the possession. The house in question was not worth living and the complainant had to suffer lot of mental agony and pain and was deprived of the possession by the appellant and the order on merits is justified. It is true that in the instant case there was stay order from 24.4.1991 to 16.12.1993 but even thereafter no sincere efforts at all had been made by appellant, Development Authority, for making the house in question inhabitable equipped with all civic amenities. The Commission''s report (13C) clearly supports the contention of the complainant that the house in question which was allotted had a number of shortcomings and deficiencies making the complainant unworthy of living in the house allotted to him. Article 21 of the Constitution of India clearly postulates and phasises that the right to live in a decent way is one of the fundamental rights as enshrined in Article 21 and no one can deprive it. In the instant case there was a contract between the appellant and the consumer/complainant for allotment of a house, subject to the payment of instalments and compliance of other economic liabilities. The compliance of instalments and other economic liabilities has been faithfully done by the complainant. Now it is the turn of the development authority/appellant to comply with its assurances of handing over the possession with all the equipments of civic amenities making the complainant and his family worthy of living but the same was not done as is clear in the Commission''s report which was the initial grievance. Thus, even, if the offer of possession after vacation of stay order was there, that was not an offer of possession, much less the compliance of the contractual obligation by the appellant, Development Authority. That being so the refusal was justified and there was no delaying tactics adopted by the complainant. Obviously there was deficiency in service. It has been brought to the notice of the Commission that the possession has been handed over on 6.6.1997. The argument of awarding allegedly too excessive rate of interest is also of no consequence. Even when the scheme was floated, it is presumed that it will be floated only after being sure that the scheme which is floated to the consumers is floated after being ensured that the development scheme does not contain any legal infirmity. The land in question should, therefore, be free of legal encumberances and legal liabilities. The possession should have been handed over after equipping all the necessary equipments with the house in question. Those things were not done and every cursory stand was taken. In such cases the rate of interest should only be 18% as made clear in Balbir Singh''s case (G.D.A v. Balbir Singh, Civil Appeal No. 7173 of 2002, Supreme Court). The contrary argument of the appellant does not survive.

SINCE the possession has been handed over prior to the delivery of judgment, this direction that the possession be handed over after curing the defects pointed out in the Commission''s report (13C) does not survive. The document of handing over possession which carries the signature of the complainant, is an admission that every required defect has been cured. Otherwise the possession would not have been taken by the complainant. The contrary argument of Mr. Sharma, Counsel for respondent that he had to spend huge sum for curing the defects is of no consequence. ORDER The appeal is allowed in part. The appellant is directed to pay interest on the deposited amount @ 18% per annum from 1.1.1994 till 6.6.1997, the date of possession. In the circumstances of the case there will be no order as to the costs. Appeal allowed in part.