LUCKNOW DEVELOPMENT AUTHORITY vs BANKEY BEHARI MISRA

BOTH these appeals arise out of judgment and order dated 18.8.1999 passed by District Consumer Forum-II, Lucknow in Complaint Case No. 1107/1998.

THE facts of the case stated in brief are that the complainant deposited different amounts on different dates upto 21.6.1993 for allotment of an LIG house G.530, IInd Phase. THE house was allotted to him on 29.6.1993. THE letter for possession was issued but the possession was not given to the complainant on the pretext that there is some disputes of land with the cultivators. Hence the possession could not be delivered. THE complainant has prayed for refund of the amount deposited by him alongwith interest. The opposite party has pleaded that the disputes with the cultivators has now been resolved and by letter dated 6.5.1999 it was intimated to the complainant to take possession. The complainant refused to take possession as he has already retired and is living with his son.

The learned District Forum, after considering the entire evidence on record, allowed refund of the amount alongwith usual interest as well as Rs. 5,000/- as compensation and Rs. 1,500/- as cost. It has also been provided that if the amount is not paid within three months, interest at the rate of 2% per month shall be payable.

AGGRIEVED against this order of the learned District Forum, the Lucknow Development Authority as well as the complainant have come in appeal. Learned Counsel for the appellant has argued that due to dispute with the cultivators, the possession could not be given in the year 1993 and the registration of the house was done. However, the dispute has how been settled in the year 1999 and a possession letter was issued on 6.5.1999 for handing over possession. According to learned Counsel for the opposite party the registration was done in 1993 and thereafter allotment letter was issued in the same year but the possession was not handed over. Learned Counsel for the complainant has argued that possession letter dated 6.5.1999 was never received by the complainant and this letter was merely filed few days before the argument in the District Forum alongwith affidavit. He has further argued that no information was given to the complainant about the dispute with the cultivators.

A query was made from the learned Counsel for the complainant as to when the dispute with the farmers had started and when it was resolved and what was the nature of the dispute. Learned Counsel for the appellant was not in a position to inform us as to when the dispute had started and what was the nature of the dispute and when it was resolved. If the registration was done in 1993 then it was clear that there was no dispute with the cultivators; otherwise the registration of the property would not have been got done. Once the registration is done, it becomes the duty of the appellant/Development Authority to hand over the possession of the allotted property to the complainant. When there is no evidence on record to show that there was any dispute with the farmers, we are not inclined to place reliance on this theory which has been taken by the appellant. Even the appellant did not care to inform the complainant about the existence of such a dispute. If there was a dispute, the appellant should have informed the complainant who would have exercised his right to have another house in another scheme or would have taken back his amount because the complainant was retiring and by the time the letter of possession was issued in May, 1999 he had already retired. It is common knowledge that a person before his retirement plans his retirement and arranges for a place to live in. If that place is not made available, even after allotment, it becomes useless for a retired person who has to seek alternative place for his living. He cannot live on road and shall take shelter in house of his friends etc. Thus we find that non-delivery of possession after registration of a house in favour of the complainant for a period of about 6 years amounts to deficiency in service and the complainant is to be awarded damages by the Development Authority. The District Forum has rightly ordered for refund of the amount and for award of interest and cost of litigation. Learned Counsel for the opposite party, who also filed an appeal, prayed for enhancement of the interest which has been granted by the District Forum on usual rates. From the judgment of the District Forum, we find that there was deficiency on the part of the appellant and it should pay interest at the prevailing rates which is awarded in such cases. According to the case of the National Commission, George Thomas & Ors. v. Ghaziabad Development Authority, I (1999) CPJ 18 (NC), 18% p.a. interest is recovered by the Development Authority on defaults on the amounts payable to it. Therefore, the rate of interest that should be allowed to the complainant must be the same.

LEARNED Counsel for the appellant has further argued that the house has already been registered in the name of the complainant by June, 1997. Therefore, it has to be returned back to the appellant. The complainant is thus liable to execute a Registry document of sale in favour of the Lucknow Development Authority. The Development Authority shall bear all the costs of the sale deed.

ACCORDING to the learned Counsel for the appellant interest should not be awarded at the rate of 18% per annum but @ 12% per annum. This is not the correct position. Hon''ble Supreme Court in the case of Surendra Kaur v. Government of Punjab & Ors., (1998) 9 Supreme Court Cases, 592, has held that interest shall be payable @ 18% per annum. The Authority in that case had allowed 7% regular interest and 18% penal interest. This was confirmed by the Hon''ble High Court. The Hon''ble Supreme Court came to the conclusion that the regular interest of 7% and penal interest of 11% per annum should be allowed. Thus we find that the Hon''ble Supreme Court has allowed 18% p.a. interest in all in this case. Similarly the Hon''ble Supreme Court in the case of Latha Construction Company & Ors. v. Dr. Ramesh Chandra Ramaniklal Shah & Ors., III (1999) CPJ 46 (SC)=X (1999) SLT 77=1999 (9) Supreme 534, has upheld the interest of 18% in case of builder. The result is that the order passed by the District Forum is correct and needs only minor modification. Order

Both the appeals are partly allowed. The rate of interest is allowed at the rate of 18% per annum from the date of deposit till the date of payment. The judgment and order of Distt. Forum shall stand modified to this effect. The complainant shall execute a Registry document of sale in favour of the Lucknow Development Authority within 15 days of formalities being completed by the Lucknow Development Authority. The entire cost of the registration shall be borne by Lucknow Development Authority. The amount which has to be paid by the Lucknow Development Authority shall be paid at the time of registration of the sale deed either by local pay order or by Bank draft. Let copy of this order be made available to the parties as per rules. Appeals partly allowed.