HARBANS SINGH vs LUCKNOW DEVELOPMENT AUTHORITY

THIS is an appeal against the order of the State Commission, U.P. dated 17.1.1992 in Case No. 164/90 whereby some reliefs were granted to the complainant/appellant. Not being satisfied with the same the complainant/appellant has come in appeal before us. The facts of the case as stated by the appellant in his memorandum of appeal are: (a) that in the year 1982, the Lucknow Development Authority, Respondent herein, published an advertisement on 17.10.1982 in the newspaper. The Pioneer whereby it was stated that the said respondent is developing a colony ''Gomti Nagar''. Applications were invited for registration of the different categories of houses. (b) that in response to the advertisement as mentioned above, the appellant applied for a H.I.G. House vide application form No. 40717 on 29.11.1982 and deposited initial sum of Rs. 10,000/- in cash with the Lucknow Development Authority, being the registration fee as per the said advertisement. As per the booklet/brochure the houses in question were expected to be completed by 30.6.1984 in all respect. The total value of the house was mentioned as Rs. 1,25,000/-. By the terms of said booklet the persons registered with Scheme had to pay a sum of Rs. 40,000/- after allotment and balance Rs. 75,000/- was payable, after possession of house was handed over, in 10 yearly instalments; (c) that, however, the respondent failed to construct the houses by the 30.6.1984 and an advertisement was published in the Daily'' The Pioneer'' on 16.9.1984 in continuation of the earlier advertisement dt. 17.10.1982, whereby it was proposed to increase the estimated value of the houses to be constructed by the respondent. Accordingly, the cost of the H.I.G. Houses was enhanced to Rs. 1,60,000/- instead of Rs. 1,25,000/. The appellant and the other similarly situated persons, who were registered in the Scheme were directed to deposit further sum of Rs. 20,000/- by 15.10.1984 and further Rs. 70,000/- in five quarterly instalments in 15 (fifteen) months. It was further stated that those persons who fail to deposit the enhanced amounts as per the advertisement dt. 16.9.1984, shall not be entitled for allotment of the house; (d) that accordingly the appellant deposited a sum of Rs. 20,000/- on 15.10.1984. Thereafter, the draw was held on 27.10.1984 by the respondent and the appellant was allotted a house No. A-2/97, in Vishal Khand, Gomti Nagar, Lucknow in terms of letter dt. 26.11.1984. The appellant further paid a sum of Rs. 70,000/- in five instalments as per the allotment letter; (e) that in total a sum of Rs. 1,00,000/-(Rs. One lac only) was paid by the appellant to the respondent from 29.11.1982 to 31.12.1985. That the balance amount of Rs. 60,000/- or actual cost of house was to be paid by the allottee after the handing over of the possession of house in 10 yearly instalments; (f) that after waiting for about three years the appellant sent a registered letter on 18.11.1988 to Lucknow Development Authority with a view to know as to when the said house will be ready for handing over to the appellant. However, no reply was even given to the appellant by the Lucknow Development Authority; (g) that, thereafter, the appellant on 11.6.1990 received a letter dt. 2.6.1990, from the respondent whereby the appellant was directed to deposit a sum of Rs. 22,830/70p, within fifteen days from receipt of the said letter with the respondent and the appellant was also asked to take possession of the said house after signing the Hire Purchase agreement. The total cost of house was worked out at Rs. 1,52,600/- including the cost of land. With regard to the payment of balance amount of Rs. 52,600/- the -quarterly instalment of Rs. 2,416/-was fixed, to be paid in 10 years. It is stated that a sum of Rs. 16,912/ - including interest was charged by the respondent towards the 7 instalments from the period 1.11.1988 to 31.7.1990; (h) that on 28.6.1990, the sum of Rs. 22,830/70p. was deposited by the appellant in UCO Bank, Lucknow Development Authority Branch. The appellant also signed the agreement papers as desired by Lucknow Development Authority on 29.6.1990. A possession letter dt. 29.6.1990 was also given to the appellant for taking physical possession of the house allotted in favour of the appellant from the Engineering Department of Lucknow Development Authority. The copy of the possession letter meant for the Executive Engineer was handed over to the Executive Engineer by the appellant on 29.6.1990, in his office, who further passed it on to Junior Engineer (J.E) incharge of the Scheme for necessary action; (i) that the appellant visited the said allotted house alongwith the Junior Engineer (J.E) on 30.6.1990, however, it was found that the said house was in depleted condition and the house was not complete. Accordingly, possession of the house was not handed over to the appellant by the said Junior Engineer; (j) that an assurance was given to the appellant by the Junior Engineer that the house shall be completed by the respondent within one month and, thereafter, the possession shall be handed over to the appellant; (k) that after about a month appellant again went to Lucknow from Allahabad on 27.7.1990, and visited the said house which was found in the same old condition as same was not completed by the respondent. Shockingly the house was found under occupation by some un-authorised / persons and was being used as a godown and for fabrication work wiit the knowledge of the authorities concerned. On enquiry it was found that the authorities had given the house to the Secretary of Kanpur Development Authority for his private use; (l) that the appellant met the Executive Engineer on 28.7.1990 and gave in writing, about the condition of the house and also mentioned about the un-authorised occupation of the house as stated above. The Executive Engineer orally told that they will ask the contractor to complete the house early, and that possession would be handed over to the appellant later on; (m) that at the time of signing the Hire Purchase agreement on 29.6.1990, appellant requested that Addl. Secretary (Property Section) vide application dt. 29.6.1990, for intimating the balance amount due as on 29.6.1990, so that appellant may deposit the entire amount in lump-sum instead of paying quarterly instalments for 10 years. A reminder dt. 27.7.1990 was also given to Vice-Chairman for intimating the balance amount be paid in lump sum; (n) that the next instalment falling due in August, 1990 was paid in time, by demand draft No.TT/E-594400 dt. 24.7.1990 but no intimation of the balance amount to be paid was given upto 28.8.1990; (o) that on 28.8.1990 the appellant received a letter No. 1110/-AS, dt. 18.8.1990 from Lucknow Development Authority in which applicant was asked to deposit the charges which had already been paid on 28.6.1990 (Rs. 5,918/70p). In addition to above applicant was also asked to deposit Rs. 49,800/- towards lumpsum balance amount alongwith stamp papers of value Rs. 17,473/-and Rs. 4,858/- for registration of house and plot of land respectively by 28.9.1990. The details of calculations for arriving at the figure of Rs. 49,800/- were not given in the said letter dt. 18.8.1990; (p) that the agreement papers for the said house were signed by the appellant on 29.6.1990 but the possession of the said house was not given. From the letter dt. 2.6.1990 it is reflected that the payment of instalments of the balance amount remaining to be paid were commenced with effect from 1.11.1988. It was also learnt by the appellant from the office of Lucknow Development Authority that the opposite party charged the interest of Rs. 14,111/-on the balance amount by way of instalment till 28.9.1990. It is the appellant''s view that the action of respondent in realising the instalments from 1.11.1988 and charging of interest with effect from 1.8.1988 was arbitrary, illegal and one sided. The said action was also not only unreasonable but same was illegal and against the agreed terms and conditions laid down in the booklet of Rules and Regulations for allotment of Houses as the instalment for balance amount of Rs. 52,600/- could only be started from the date when the possession was handed over to the appellant. In this connection, the appellant sent another letter under registered post on 30.8.1990 requesting to give the break up of Rs. 49,800/- which the appellant was asked to deposit. Subsequently, a reminder was also sent on 5.10.1990; (q) that the appellant also met the Chief Engineer, Lucknow Development Authority on 12.10.1990 and he was appraised about the case and the appellant requested him, to get the house completed early and also arrange handing over the house to the appellant. A letter to this effect was personally given to him in his office and a copy was also sent through registered cover. However, appellant did not receive any response from him; (r) that the appellant further sent a letter dt. 21.11.1990addressed to the Vice-Chairman, appraising him of the development in the case and the position existing at that time. However, no reply was given; (s) that it is stated that in pr. 14.1 p. 5 of the Booklet of Rules and Regulations supplied to the appellant along-with the application form, 4% simple interest was payable by Lucknow Development Authority starting from the 1st of the next month in which the amount was deposited and upto the last date of the previous month in which intimation for Registration notice is sent. In view of the above it was obligatory on the opposite parties to pay the interest on the deposits made by the appellant with the Lucknow Development Authority in terms of agreed terms and conditions laid down in the booklet as stated above, till 31.12.1985 and thereafter, at market rate of interest of 24% p.a. as the respondent were bound to hand over the possession of the house to appellant in January, 1986; (t) that since the possession of the house No. A-2/97 Vishal Khand, Lucknow was not handed over and since no interest was paid by the respondent on the amount deposited by the appellant and because the respondent had wrongly taken the instalments from the appellant w.e.f. 1.11.1988, though the possession of the house in question was not handed over by the respondent to the appellant, the appellant filed a complaint on 30.11.1990 before the State Consumer Disputes Redressal Commission, Lucknow, Uttar Pradesh, against the respondent being application No.l64of 1990.

THE complainant/appellant''s prayer before the State Commission was that the respondent Lucknow Development Authority be directed to handover the possession of the house No. A-2/97, Vishal Khand, Gomti Nagar, Lucknow to the complainant/appellant and further grant interest at the rate of 24% per annum on the sum of Rs. 1,27,663/- from 1.1.1986and further4% interest as per Rules on the amount deposited by the appellant from 29.11.1982 to 31.12.1985 should be credited to him. A compensation of Rs. 5,000/-per month was also prayed for, for monetary and physical loss and mental agony due to negligence on the part of the respondent. The complainant/ appellant also produced evidence1 by way of photographs to show the dilapidated state of the house in question. During Hie pendency of the complaint before the State Consumer Disputes Redressal Commission, Lucknow, the respondent on 8.5.1991, handed over the possession of the house in question to the appellant. However, since the house was in depleted condition, the appellant filed an additional affidavit dt. 25.7.1991 bringing the subsequent events to the notice of the State Commission along with documents.

IT was further stated that after the appellant got the details from the office of the respondent, it was found that no interest was allowed on the amount of Rs. 1,00,000/- paid by the appellant till 13.12.1985. It was also found that interest was being charged at the rate of 12.5% on the balance amount of Rs. 52,600/- w.e.f. 1.8.1988 though the possession of the house was given in May, 1991. The instalments were payable only from the date when the full services were provided by the respondent, and the interest also could only be charged from the date when the house was handed over along-with full services etc. The fixing of instalments from 1.8.1988 was illegal.

IT was accordingly stated that no interest was due and payable by the appellant on the balance sum of Rs. 52,600/- till the house is handed over to the appellant with complete and satisfactory services. The appellant further mentioned the details of the deficiencies in the house in question alongwith the said affidavit. The deficiencies were estimated to a total sum of Rs. 50,000/-. On the basis of these facts the appellant had prayed to be suitably compensated. He has also stated that the respondent had not filed any reply to the complaint/affidavits nor the affidavit/documents were rebutted by the respondent.

THAT from the facts as disclosed above, it is clear that claims of the appellant before State Commission were as under:"that respondents were bound to pay interest at the rate of 4% from 1.12.1982 till 31.12.1985 on the amounts deposited by the appellant and further interest at .the rate of 24% p.a on the amount deposited by the appellant w.e.f. 1.1.1986 till possession of the house was handed over to the appellant; that no interest or instalments were payable by the appellant to be respondent prior to 8.5.1991; to pay damages at the rate of Rs. 5,000/-per month from 30.6.1990 till 8.5.1991 because after the Hire Purchase agreement, if the possession would have been given to the appellant, he would have received rental income at the rate of Rs. 2,500/- per month and balance amount of damages were claimed on account of frequent visits to Lucknow from Allahabad for chasing the matter and filing the complaint before the State Commission. To rectify the deficiencies of house by the Lucknow Development Authority or Rs. 50,000/- be paid to the appellant if the same are not rectified etc. by the respondent.

THE State Commission partially allowed the complaint of the appellant, whereby the respondents were directed to remove the deficiencies of the house in question by 30.4.1992, however, the said State Commission did not grant any interest on the amount deposited by the appellant w.e.f. 29.11.1982 and further only a sum of Rs. 1,000/- was granted in total against the claim of damages of appellant, which was for a sum of Rs. 5,000/- per month. The State Commission also did not consider the interest levied by the respondent on the balance amount of Rs.52,600/- w.e.f. 1.8.1988 illegally, though the possession of the house was only granted on 8.5.1991 that too without the proper services. Aggrieved by the said orders of 17.1.1992, whereby the said State Commission has not considered the relevant submissions the appellant, the appellant has preferred this appeal. Taking the facts into consideration and hearing both sides, we are of the opinion that the State Commission did not compensate the complainant /appellant suitably for the suffering he had to undergo due to the delay and lack of concern shown on the part of the respondent in handing over the possession of the house, which in turn was not in a proper condition.

WE have held earlier that for the delay in handing over possession after two years from the date of the initial deposit made by a potential consumer of a Housing Board or a builder, 18% interest per annum would start accruing and the same would hold for the subsequent payments made, till the date of delivery of the particular housing-construction in question. But in view of the recent Supreme Court order the rate of interest will now be 15%.

IN this case the date in relation to the above statement would be 30.11.1984, though the estimated date of completion was 30.6.1984. Thus the appellant is entitled to receive from Respondent 15% interest p.a. on all the payments made so far from 30.11.1984 till the date of the possession of the house which is 8.5.1991. The appellant is also entitled to receive compensation for the monetary and physical loss and mental agony he has suffered for more than 6 years in this whole process. Especially taking the fact into consideration that a letter dated 2.6.1990 from the respondent was received by him asking him to deposit a further sum of Rs. 22,830/70p. and take possession of the said house after signing the Hire Purchase agreement, and a possession letter dt. 29.6.1990 was also given to the appellant, to his dismay when he went to see the premises along with an officer of the Respondent he found that the house was not completed.

WHEN he again went from Allahabad to Lucknow on 27.7.1990 to see the condition of the house he got a further shock of seeing the premises unauthorised occupied by someone else and they were being utilised as a godown and for fabrication work. On these two counts he is entitled to a compensation of Rs. 3,000/-per month from 28.6.1990, the date on which he gave his cheque of Rs.22,830/70ps. to be able to take possession and till the date 8.5.1991 when actual possession was given.

EVEN after taking possession the appellant found there were a lot of repair works that needed to be done, and he has quantified the expenditure at the figure of Rs. 50,000/-. But since we do not have any means of verifying the same except from the photographs he has produced as evidence, we are of the view that Rs. 10,000/- may be given as lumpsum. We do not interfere with the terms and conditions of the Lucknow Development Authority in their Hire Purchase scheme and so whatever the appellant is required to pay in future, as yearly or otherwise instalments, he will have to pay. In the result, the Respondent Lucknow Development Authority, is ordered to pay the appellant 15% interest p.a. from 30.11.1984 till 8.5.1991, computing the same on the various amounts paid on different dates. In addition to this Rs. 3,000/- per month from 28.6.1990 to 8.5.1991 which aggregates to Rs. 33,000/- as compensation, for repairs Rs. 10,000/- and Rs. 2,500/- as costs of this appeal. With this we dispose of the appeal.