LUCKNOW DEVELOPMENT AUTHORITY vs SALEEM AHMED

This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 26.09.2011, passed by the U.P. State Consumer Disputes Redressal Commission, Lucknow (hereinafter referred to as ''State Commission'') in appeal No. 2331/2001, Lucknow Development Authority (hereinafter referred to as LDA) vs. Saleem Ahmed, vide which, the said appeal against the order dated 19.08.2002, passed by the District Forum, Lucknow in complaint No. 1340/2000, allowing the said complaint, was dismissed and the order of the District Forum was maintained.

Briefly stated, the facts of the case are that the respondent/complainant Saleem Ahmed, Advocate deposited a sum of Rs.4,000/- with the petitioner LDA on 19.11.1982 as registration amount for booking a plot in their Gomati Nagar Housing Scheme. It has been stated in the complaint that the complainant waited for a long time and also sent many letters to the petitioner/OP, but without any result. He approached the office of the OP in March 1999, when he came to know that plot no. 5/65, Vinay Khand, Gomati Nagar Lucknow had been allotted to him, but the said allotment was cancelled on the ground of non-payment of money to the LDA and the said plot was allotted to some other person. The complainant, alleging deficiency in service on the part of the petitioner/OP, filed a consumer complaint seeking direction to the OP to provide the said plot No. 5/65 Vinay Khand, Gomati Nagar, to him on the original price, offered at the time of registration and also pay a sum of Rs.4 lakh as compensation and damages for the mental agony suffered by him. The complaint was contested by the petitioner/OP by filing a written statement in which, they admitted that a sum of Rs.4,000/- was deposited by the complainant as registration money on 19.11.82, and thereafter, plot No. 5/65 Vinay Khand, Gomati Nagar was allotted to him on 11.10.85 and an allotment letter was also sent on 25.10.85 which was received by the complainant. However, the complainant did not deposit any further amount with the petitioner and hence, a cancellation letter was sent to him on 30.06.87. Since the complainant did not contact the petitioner even after sending the said letter, the said plot was allotted to one, Sh. V.P. Singh.

The District Forum vide their order dated 19.08.2002 concluded that the petitioner/OP had failed to prove that they had sent any information to the complainant about the cancellation of the plot. They accordingly directed the OP to allot a plot in any khand of Gomati Nagar to the complainant at the same old rate at which plot No. 5/65, Vinay Khand, Gomati Nagar was allotted and also to pay to him a sum of Rs.2,000/- for mental agony and Rs.1,000/- as cost of litigation. The State Commission, during hearing in appeal before them, also concluded that the OP had not been able to prove that the notice of cancellation or the letter of cancellation was ever served upon the complainant. They accordingly dismissed the appeal with costs of Rs.10,000/- against the order of the District Forum. It is against this order that the present revision petition has been made.

During arguments, it was contended by the learned counsel for the petitioner that since the complainant failed to pay the necessary amount upon allotment of plot, a notice for cancellation was sent to him on 05.06.87, a copy of which was on record. Thereafter, a letter of cancellation was sent to the complainant vide letter dated 30.06.87. The complainant had concocted a story that he never received these communications from the petitioner. Moreover, the complaint was highly time-barred and this issue was taken-up in the written statement filed by the OP before the District Forum. However, the lower consumer fora had not decided the issue of limitation. The complainant did not have any case on merits as well and hence, the complaint was liable to be dismissed.

The learned counsel for the complainant/respondent, however, stated that limitation had to be taken from the date of knowledge which in this case was March, 1999, when the complainant first visited the office of the petitioner. The orders passed by the lower fora were, therefore, in accordance with law. The learned counsel, during arguments, produced a copy of letter dated 26.11.92 purported to have been sent to the petitioner and received by them on the same day, but there was no response to this letter from the petitioner.

We have examined the material on record and given a thoughtful consideration to the arguments advanced before us.

It is a fact, admitted by both the parties that the complainant deposited a sum of 4,000/- to the OP, Lucknow Development Authority on 19.11.1982 as registration money for allotment of a plot under the Gomati Nagar Housing Scheme at Lucknow and the OP issued a receipt to this effect to the complainant. The basic question that arises for our consideration is as to whether further progress about the allotment / cancellation of a plot by the Authority was ever communicated to the complainant or whether the factum of allotment / cancellation was in the knowledge of the complainant at any given point of time before the start of the present proceedings under the Consumer Protection Act, 1986.

The case of the complainant is that he sent several letters to the OP, requesting them to allot the plot against his booking but he never received any response from them. Ultimately, when he visited their office in March 1999, he came to know about the allotment of plot No. 5/65, Vinay Khand, Gomati Nagar, Lucknow by the OP in his favour and he also learnt about the subsequent cancellation of the said plot in the year 1987 for non-payment of the allotment money and other dues to the OP. On the other hand, the OP Authority have taken the position that the said plot was allotted to the complainant in the draw of lots held on 11.10.85 and allotment letter was also sent to the complainant on 25.10.1985 but he failed to deposit the necessary amount to the Authority. A copy of the said allotment letter has been produced on record, which indicates the estimated cost of the plot and the payment schedule etc. However, both the District Forum and the State Commission observed in their orders that it was not proved from any material on record as to whether the complainant ever received the said allotment letter. The OP authority has not been able to put forth any plea in support of their assertion in the written reply to the complaint that the said letter was received by the complainant. Further, the OP is stated to have taken a decision about the cancellation of this plot on account of failure of the complainant to pay the requisite dues to the OP. A notice dated 05.06.1987 is stated to have been sent to the complainant saying that the necessary instalments for the plot should be deposited otherwise the allotment shall be cancelled. A copy of letter dated 30.06.1987 has also be placed on record saying that the said allotment had been cancelled. Both the consumer fora below came to the conclusion that no proof had been put-forth to support the plea that these letters were ever received by the complainant. It may be stated here that in the written reply to the complaint filed by the OP, there is no mention of the notice dated 05.06.2007, purported to have been sent by the OP to the complainant. The State Commission, after examination of the facts and circumstances of the case, observed in their order as follows:- " The main contention of the appellant/opposite party is that they had given the information of allotment to complainant and due to non-deposit of prescribed allotment amount by him, his allotment was cancelled and the information of cancellation had been sent to the complainant. Surprisingly no documents in respect of receiving of allotment have been filed by the appellant / opposite party either before this Forum or Lower Forum, although the copy of the allotment letter dated 25.10.85 has been filed on record. The copy of cancellation letter of allotment dated 30.06.87 has also been filed on the record but no receipt in respect of his delivery has been filed. The Opposite Party has filed notice dated 5.6.87, which it sent to the complainant before the cancellation of the allotment. In respect to its service no certificate of service has been submitted. It is also pertinent to mention here in respect of allotment of plot the complainant sent a letter on 26.11.1992 to appellant/opposite party, which was not replied by the appellant opposite. It is also surprised Appellant/opposite party without ensuring the compliance of the letters issued by its office on the complainant, allotted plot of the complainant to one Shri V.P. Singh. On the perusal of allotment letter dated 25.4.1989 issued to Shri V P Singh of the plot in question No. B5/65, Vinay Khand Gomti Nagar Lucknow, it is clear that the plot No. B5/134, Vinay Khand Gomti Nagar, Lucknow, was allotted to him. Since the plot allotted to him was missing, he was allotted plot No. B5/38, Vinay Khand Gomti nagar Lucknow and later on B5/65 was issued in place of B5/38. It is clear that the office of appellant/opposite deliberately did not issue the information of the allotment of plot to the complainant and only after completing the papers formalities, later on cancelled the allotment of the plot of the complainant and the information of cancellation of plot was also not sent. From the entire proceeding it is clear that the above fake proceeding was done deliberately only with the intention to provide benefit to some other allottee. "

Both the District Forum and the State Commission reached identical conclusion after carrying out a detailed analysis of the facts and circumstances, based on the documents produced on record. There is no other material available which may lead us to believe that this conclusion was not correctly arrived at. The OP has not produced any evidence anywhere that the allotment letter, notice for cancellation and the cancellation letter had ever been received by the complainant. We are, therefore, of the opinion that no adverse view can be drawn against the complainant on this score. In so far as the issue of limitation in filing the consumer complaint is concerned, the complainant has asserted that he came to know about the allotment as well as cancellation of the plot in March 1999 and hence the consumer complaint was within limitation. There is no material on record to controvert this version of the complainant. Moreover, once he has admittedly deposited the registration amount for allotment of a plot and his name is very much under consideration for the said allotment, it is a case of continuing cause of action till the complainant receives any communication about the allotment / non-allotment of the said plot. This consumer complaint is, therefore, held to be within limitation.

Moreover, in the exercise of revisional jurisdiction under section 21(b) of the Consumer Protection Act, 1986, the scope of the interference is limited because such powers can be exercised only if there is some prima-facie jurisdictional error or miscarriage of justice as a result of the impugned order. This view has been taken by the Hon''ble Apex Court in the case of " Rubi (Chandra) Dutta vs United India Insurance Company Limited" as reported in (2011) 11 SCC 269.

Respectfully following the view taken by the Hon''ble Apex Court, in the case cited above and the material on record, we do not find any illegality, irregularity or jurisdictional error in the orders passed by Fora below and hence, these orders do not warrant any modification in the exercise of revisional jurisdiction. The revision petition is, therefore, ordered to be dismissed and the order passed by the lower consumer fora upheld with no order as to costs. Mr. H.K. Srivastava, Advocate