PREM LATA GAUTAM vs Lucknow Development Authority

THIS complaint was presented on behalf of Mrs. Prem Lata Gautam in the Registry of the Commission on 14.7.1993. The case of the complainant is that attracted by the terms and conditions published in the Brochure of the Scheme Kanpur Road, Lucknow of Lucknow Development Authority (in short L.D.A.) that me H.I.G. houses will be constructed by 31.3.1984 at the cost of Rs. 1,25,000/-, she deposited Rs. 10,000/- for the registration and allotment of M.I.G. house vide Challan No. 200 on 27.6.1983. The L.D.A. issued an allotment letter dated 22.11.1983 for the H.I-G. House No. B-1-11/D in the Corner of the Scheme and "also demanded" Rs. 25,000/- instead of Rs. 15,000/- against the total cost of Rs.1,25,000/-as per allotment letter dated 22.11.1993. Accordingly Rs. 25,000/- were deposited with the L.D.A. vide Challan No. 6649, dated 19.1.1984 within the period of 3 months allowed. But to the dismay of the complainant the L.D.A. informed her by the letter dated 28.5.1994 after 6 months of the previous allotment letter that the H.I.G. House No. B-1-11/Dallotted wrongly to her, was already allotted to one Mohsin Raza Rizvi and, therefore, could not be given to her and her name will be considered in next lottery draw though on enquiry it was found that the name of Moshin Raza Rizyi was never considered in the lottery. A protest letter dated 9.6.1984 was sent to L.D.A. but with no result. After several letters and personal contacts she was offered by the L.D.A. to choose one of the two left over houses and under the compelling circumstances for getting a house, she gave her consent and later on was allotted House No. B1-83/D on 25.9.1984 in the same colony which was after 10 months of the previous allotment letter. On receipt of the allotment she alongwith her husband visited the site of allotted House No. B1-83/D and found that there was a sewer mainhole and telephone pole in front of the main gate of the house, she and her husband both made several oral requests as well sent written letters dated 9.12.1986 and 20.4.1988 to remove the telephone pole and sewer mainhole but nothing was done by the opposite party (Lucknow Development Authority).

IT was also alleged that the Lucknow Development Authority was expected to complete construction of the house by 31.3.1984 and its possession was to be given immediately thereafter but the Lucknow Development Authority failed to complete the construction and deliver the possession in time as stipulated and thereby committed deficiency in service. Besides it was further alleged that the complainant on the inspection of the allotted House No. B-1-83/D, found that it was under illegal possession of a civil contractor of the L.D.A. who was using it as a Store House since long, and she was not given possession inspite of the personal contacts made with the authority and letters written to L.D.A. By the use of the house as Store House by the L.D.A.''s contractor, ground-floor, mossaic flooring, plaster, painting, white-washing, wooden doors and windows and electrical fittings of the rooms were badly damaged. All these defects were also brought to the notice of the L.D.A.''s Officers through letters dated 11.10.1986, 21.12.1986 and 5.1.1987. Ultimately, the opposite party had got signed a proforma blank agreement in order to get the formalities completed and believing in good faith the agreement was signed on 6.8.1986 (Annexure 10A) but she was assured by the L.D.A. Officers to get all the formalities completed and defects removed soon and delivery of possession at the earliest and after great persuasion, the L.D.A. issued a letter dated 10.12.1986 to Executive Engineer to deliver possession (Annexure No. 12). Inspite of several contacts made by her husband with the Executive Engineer and other concerned Officers possession of the allotted house could not be given nor the defects pointed out were removed inspite of letters dated 5.1.1987 and 21.4.1987 sent by the complainant to the Officer of the L.D.A. No details of the account of the price, amount paid in excess or less was given by the L.D.A. After a long gap of time the L.D.A. could deliver possession of the house on 26.5.1987. But the account of the amounts deposited and interest earned could not be given by the L.D.A. inspite of the letter dated 16.10.1987 written to it and contrary to his repeated requests again the L.D.A. demanded Rs. 1,55,856/- vide its letter dated 25.1.1988 (Annexure 18A) and again a demand was made vide letter dated 28.1.1988 for Rs. 49.040/- but gave no details of the account as requested earlier while the total cost of the house including lease rent intimated was Rs. 1,46,800/- as per agreement dated 10.2.1988 (Annexure No. 10A). Failure to supply the accounts and demanding again large amounts of Rs. 1,94,850/- and Rs. 49,040/- the L.D.A. is guilty of the ''unfair trade practice'' in rendering of service by it to the complainant although the complainant after taking loan from H.F.D.C. paid Rs. 1,00.000/- through Draft No. 396007, dated 29.8.1988 in addition to the Rs. 52,514/- already deposited by her to L.D.A. Instead of furnishing the accounts the L.D.A. again sent a letter dated 13.4.1992 (Annexure 8C) demanding Rs. 89,694/- from her ignoring her earlier requests made for details of the account which was requested again by her vide letter dated 10.6.1992 and again on 5.9.1993 but none on behalf of the L.D.A. did care to respond to her requests. Registration of Sale Deed was also not executed. Having been aggrieved with the L.D.A.''s apathy the complainant filed the complaint, praying that the L.D.A. be given direction for the following reliefs : (1)To furnish the details of the price of house and amount deposited, interest earned therewith and balance, if any, to be paid by the complainant or amount in excess to be refunded by the opposite party/L.D.A. (2)To execute and register the Sale Peed Without further delay. (3)To pay interest at the rate of 21 % on the amount of Rs. 44,183 /- deposited by her from the date of the deposits to the date of the actual possession given (26.5.1997). (4)To pay the amount spent on repairs amounting to Rs. 28,360/-. (5)To advance Rs. 14,800/- for the remaining repairs. (6)To remove the main-hole from in front of the gate of her house. (7)To refund the excess amount of Rs. 33,978/- as stood on 22.9.1988 (the final date of payment made by her). (8)To pay compensation of Rs. 5 lacs for harassment, mental agony, and delay in delivery of possession and the expenses incurred in coming and going from Rae Bareilly to Lucknow for contacting the L.D.A. Officers, expenditure incurred in correspondence (on posts and stationery and typing).

In support of the case the complainant had filed a number of letters of correspondence made, allotment letters, agreement, possession letter and also filed an affidavit of Sri N.S. Gautam, husband of the complainant sworn on 24.5.1996 and Annexures Nos. 1 to 5 referred to therein.

ON issue of notice by registered post on 26.3.1993 a Vakalatnama of Sri R.K. Singh, Advocate was filed by Sri Jitendra Chaudhary on 3.3.1994 on behalf of L.D.A. The L.D.A. was also directed on 3.3.1993 to file written statement within one month as a last opportunity and it was specifically mentioned that if no written statement was received within the time allowed the case would be proceeded ex parte against it. No written statement was filed on behalf of the L.D.A. though the case was adjourned on 10.11.1994, 3.11.1995, 19.5.1995, 1.11.1995 and ultimately order was passed on 11.11.1995 to proceed ex parte against the L.D.A. for its failure in filing of the written statement. The case was again adjourned for 5.3.1996, 24.5.1996, 17.7.1996 and 19.7.1996 but none on behalf of the L.D.A. appeared. We, therefore, heard on 19.7.1996 the complainant''s husband alongwith Counsel Mr. M.H. Khan and orders were reserved to be pronounced later. The Brochure of the Scheme of L.D.A. filed by the complainant shows that houses were to be constructed by 31.3.1984 and possession was to be delivered immediately thereafter. The cost of the H.I.G. house was shown at Rs. l,25,000/- and Rs. 10,000/- were to be deposited at the time of the registration for the allotment and Rs. 15,000/- after the allotment was made. In this case as is stated in Sri Gautam''s affidavit dated 24.5.1994 first allotment was made on 22.11.1983 vide letter (Annexure 2A) for House No. B1-11/D (comer house) and the complainant was asked to deposit Rs. 25,000/- instead of Rs. 15,000/- within 3 months and accordingly the complainant deposited on 19.1.1984 Rs. 25,000/- vide Annexure No. 3. By this allotment letter dated 22.11.1983 the complainant was forced to pay Rs. 10,000/- more against the condition given in the Brochure. This -allotment later on was cancelled by the L.D.A. unilaterally on 28.5.1984 (Annexure No. 5) on the pretext that House No. B-1-11/D was already allotted to some one else. Here me L.D.A. being negligent had committed a deficiency in allotment of a house which was already allotted to some one else and deprived the complainant of the corner house for which she had deposited the extra money as per demand of the L.D.A. as mentioned above vide letter dated 9.6.1984 (Annexure 6A) she was asked to choose one of the left over two Houses No. B-l /18/D and B-l-83/D and allotted House No. B-l /83/D vide letter dated 25.9.1984 (Annexure No. 7) without indicating whether house was complete and ready for delivery of this possession inspite of the complaint made to the Officer of the L.D.A. on 8.12.1984 (Annexure No. 8) and 16.8.1991 (Annexure No. 9). The possession of this house could not be given but an agreement proforms got signed on 6.8.1986 from her for the sake of completing formality but it was later on dated 10.12.1986 (Annexure 10A) and possession could be given only on 26.5.1987 (Annexure 16A) after a great deal of the representation and persuasion made by the complainant and her husband. But before the delivery of the possession the allotted house was in unauthorised possession of the contractor of the L.D.A. for use as a store-house by which the house was damaged. The damaged condition of the house (defects) were brought to the notice of the Officers of the L.D.A. as mentioned in paras 17,19 and 20 of the affidavit of 24.5.1996 supported by the letter dated 11.10.1986 (Annexure 10) and 21.12.1986 (Annexure 11B) and protests were also made by the complainant vide letters dated 9.12.1986 and 20.4.1988 for removing of the telephone pole and mainhole from in front of the gate of the house and to oust the contractor from the house. These facts prove that the L.D.A. took more than 2 years after 31.3.1984 in delivery of possession of an incomplete house as per specification and thereby found negligent and deficient in service.

THE complainant was given a letter (Annexure 10B) asking to pay Rs. 30,180.95 including the main demands of Rs. 26,271.75 for 15 months advance rent and Rs. 3,841.20 for 10 years lease rent which were protested by the complainant vide letter dated 11.10.1986 (Annexure 11A) and requested the L.D.A. for furnishing of the details of the final cost of this house after adjustment of the amounts deposited by her and interest accrued thereon and any other dues but no details were given inspite of the repeated requests made vide letters dated 11.10.1986, 2.12.1986, 5.1.1987 (Annexures 11A, 11B, & 14B) letter Annexure 15 (dated 21 / 25.4.1987) and letter dated 16.10.1997 (Annexure No. 17) but she was again asked through letter dated 28.1.1988 (Annexure No. 18A) to deposit Rs. 1,59,856/- by 15.2.1988 with a warning to levy penal interest if not paid in time. This demand was followed by another demand letter (Annexure No. 18B) for Rs. 49,040.60 but no details of the amount were given though the possession was given on 26.5.1997 without repairing the defects caused by the contractor using it as a store-house. THEse defects were reported well before taking over the possession which were apparent and visible before taking over of the possession as reported by letters referred to above as Annexures No. 11A and 11B and even after taking over the possession through letter dated 13.2.1988 (Annexure No. 12) and letter dated 13.11.1997 (Annexure No. 26) and subsequent letters Annexure No. 27, 28, 29, 30 dated 16.1.1994 (Annexure No. 31), 14.3.1984 (Annexure No. 32) 3.6.1989 (Annexure No. 35), 1.12.1990 (Annexure No. 37) 14.2.91 (Annexure No. 38) 19.6.92 (Annexure No. 39), 2.10.1992 (Annexure No. 40) dated 5.2.1993 (Annexure No. 41) in which requests for repair of the house as well as furnishing of the details of the accounts were asked for therein. Thus the L.D.A. failed to furnish the details of the account regarding costs etc. and remove the defects by carrying of repairs. An amount of Rs. 1,00,000/- (one lakh) was paid through Bank Draft to the opposite party L.D.A. on 22.9.1988 vide Challan No. 5398 (Annexure 20) of the affidavit in addition to amount of Rs. 52,514.59 (vide Annexure Nos. 21 to 29) already paid. But instead of furnishing the details of the account the L.D.A. sent another letter dated 13.4.1992 (Annexure No. 13C) demanding from the complainant Rs. 89,694/- arbitrarily to be paid by 22.5.1992 with a waming to impose penal interest, if not paid by that time. This was protested by the complainant again through letter dated 10.6.1992 (Annexure No. 11 C with the complainant). It was urged by the complainant that the cause of action against the opposite party was alive and continuing through personal contacts with the Officers of the L.D.A. followed by the letters till the last communication made on behalf of the L.D.A. through its letter dated 13.4.1992 by which she was again asked to pay Rs. 89,694/- ingoring the repeated requests made through a number of letters referred to above by which she asked for the details of the accounts including that of the price of the house, adjustment of the amount paid by her from time to time and interest earned thereon and penal interest, if any, on account of the delay on her part and also removing the defects of the incomplete and damaged house reported before possession and after possession and when nothing on these counts was heard from the L.D.A. even in its letter dated 13.4.1992 (Annexure No. 13C) the complaint was filed on 14.7.1993 which is within time from the communication of the letter dated 13.4.1992 of L.D.A. by which she was again asked to pay Rs. 89,694/- ignoring her all earlier requests made. Failure of the L.D.A. in furnishing the detailed account of the price etc., deposited amounts and balance, if any was prayed repeatedly, amounts to deficiency in rendering of service to the complainant on the part of the L.D.A. more so while the original cost of the M.I.G. house as per Brochure was Rs.1,25,000/- which was reported in allotment letter dated 27.11.1993 (Annexure 2) to the affidavit also while the price of the house and the lease rent were shown at Rs. 1,08,388.05 and Rs. 38,411.95 respectively in the agreement dated 10.12.1986 (Annexure 10A of the affidavit) and again demanded additionally a sum of Rs. 30,180.95 vide letter (Annexure 10B) and again asked to deposit Rs. 1,56,850/- on 26,1.1988 (Annexure No. 18A) and Rs. 48,040.64 vide Annexure No. 18B for the allotted House No. 1-83/D. Thus, admittedly the complainants has been confused by the opposite party (L.D.A.) by demanding different costs at different time through different letters as observed above. Under these circumstances the repated requests for detailed account of the price etc. were rightly made by the complainant but the L.D.A. had failed to render its service in furnishing of the accounts to the complainant and demanded arbitrarily again Rs. 89,694/- on 13.4.1992 from the complainant who had already paid the following amounts : It is settled law that issue of pricing of the house is not a subject matter of adjudication by the Consumer FORA constituted under the Consumer Protection Act, 1986 but under the circumstances of this case the complainant has the right to know as to why and how there had been changes in demand of the costs at different times while the cost of the house initially declared was Rs. 1,25,000/- by which the complainant being attracted had got registration for the allotment of the H.I.G. house. The State Commission, therefore, may direct the L.D.A. to furnish details of the amount of the actual costs fixed by the L.D.A. and the amount deposited by the complainant and interest earned thereon and the details of the penal interest imposed on account of delay on her part and in payment of the instalments as per schedule of the demand. The house was supposed to be constructed by 31.3.1984 as per declaration made in Brochure of the Scheme and possession was to be given thereafter immediately and when delay has been made by the L.D.A. in its construction, allotment and delivery of the possession the complainant cannot be made responsible for the escalation in cost of the house and accordingly she cannot be held liable to pay the penal interest, if any, delay has been made in payment upto the date of the possession of the house given, i.e. 26.5.1987. Hence the L.D.A. cannot charge any hike in the price of the house and penal interest during the period upto the 26.5.1987 the date of me delivery of the possession and the da te 20.9.1988 when the last payment was made. Accordingly, the L.D.A. shall furnish the details of the accounts to the complainant and, if any, excess amount is found paid by the complainant i t shall be refunded with interest @ 18% p.a. It was a lawful duty cast upon the L.D.A. as requested by the complainant from the beginning till the filing of the complaint to furnish the details of the account but it failed and is thus found negligent in service.

THE complainant has proved her case that she was harassed by cancellation of a previous allotted House No. B-1-11/D for no fault of the complainant and also the L.D.A. failed to inform the complainant as to when House No. B-1-83/D was constructed while it was supposed to have been constructed by 31.3.1984 and the damaged House No. B-l -83 /D occupied by one of the contractors of the L.D.A. was delivered in a very bad shape on 26.5.1987 after more than 3 years from 3-1.3.1984 the due date of construction and that, too, after more than 10 months from the date of agreement (16.8.1996). Hence there was inordinate delay in allotment of the house and as well in its delivery of possession for no fault of the complainant, who had been pursuing it vigorously with the Officers of the L.D.A. for allotment and delivery of possession of the re-allotted House No. B-1- 83/D, and removal of its defects. THE L.D.A. is also liable to pay interest on Rs. 44,183 /- deposited by the complainant before the possession of the house at the rate of 18% interest per annum from the dates of deposit to the date of the possession (26.4.1987).

AS regards the claim of Rs.28,360/- an amount of the expenditure incurred on repairs of the damaged house which was used by the contractor of the L.D.A. as store-house which was not made by the L.D.A. on the repeated requests made by the complainant before and after the possession of the house. The complainant has supported the expenditure by giving the details of the expenditure amounting to Rs. 28,360/- in Annexure No. 42A (pages 87 to 88) of the affidavit dated 24.5.1996 of Sri N.S. Gautam referred in para 35 which supports the repairs actually made though expenditure vouchers have not been filed. But these repairs already made have been indicated in the report dated 30.10.1993 made by Sri Baban Singh, Civil Engineer of the "Unique Construction Consultants, Engineers & Designers" which is annexed as42C to the above affidavit of Sri Gautam. The estimated cost of the works still to bedone is for Rs. 14,800/- as shown in Annexure 42B (pages 89 to 90) attached to the report of M/s. Unique Constructions, Engineers and Designers. Hence the complainant is entitled to get the re-imbursement of Rs. 26,360/- for the reapirs already made and also Rs. 14,800/- for the left over repairs enlisted in Annexure 42 and removal of the mainhole from the front gate of the house to be done as prayed by the complainant in case the L.D.A. fails to give effect within 2 months from the date of this order. The complainant has prayed for the relief of Rs. 33,978/- of the extra amount of the price paid in excess. In the absence of the details of the accounts which is still to be furnished by the L.D.A. as observed above it is not clear whether and to which extent this excess amount has been paid by the complainant. If there is any excess amount paid, the L.D.A. shall refund alongwith interest as already observed. The excess amount, if any, shall be refunded to the complainant with interest from the date of this complaint to the actual date of payment within 2 months and if any outstanding balance is to be paid by the complainant the same shall be paid by the complainant within 2 months from the date of receiving the details of the accounts from the L.D.A. which is directed to furnish the details of the account as per observations made earlier within one month from the dale of this order.

The claim of Rs. 29,360/- as depreciated value of the house used by the contractor is not allowed to the complainant since she has been allowed the repair charges as observed above.

THE complainant has claimed compensation of Rs. 5,00,000/- (Rs. 5 lakhs) for the mental agony, physical harassment, financial loss on account of the journeys made from Rae Bareilly to Lucknow in meeting the officials of the L.D.A. by her and her husband and leave taken by her husband in this connection. No doubt, the complainant as well her husband who is employed with T.T.I, at Rae Bareilly had to run from pillar to post personally and sent a number of letters from time to time and met the Officers and had to incur expenditure on the journeys as well as on the correspondence and also suffered mental agony and physical harassment. A detailed chart of the leave undertaken by Sri N.S. Gautam (husband of the complainant) is annexed as Annexure 3A to his affidavit, we are of the opinion that the complainant is entitled to be compensated for mental agony, physical harassment and expenditure incurred on correspondence made and running in person to approach the L.D.A. Officers. We, therefore, under the circumstances of the facts of the case allow a compensation of Rs. 25,000/- to be paid by the L.D.A. There has been delay in giving the possession to the complainant as observed earlier. The complainant is also entitled to a compensation of Rs. 10.000/- (Rs. ten thousand Only) on this deficiency. The complainant is also entitled to the cost of these proceeding which we assess to be Rs. 2,500/- to be paid by the L.D.A. In view of the above observations we allow the complaint and direct the opposite party/ L.D.A. as following : (a) The L.D.A. shall furnish within 30 days of this order the details of the amount of the cost of the house, the amounts paid by the complainant, interest earned thereon till the date of possession given by the L.D.A. penal interest, if any, on the delay in payment of the price or instalment in accordance with the observations made hereinbefore and if the excess amount paid by the complainant it shall be refunded within 2 months from the date of the communication of the details of the accounts to complainant and if there is any balance outstanding against her the complainant shall pay to the L.D.A. within 2 months from the date of its communication by the L.D.A. as per the observation made earlier. (b) The L.D.A. shall execute the Sale Deed and get its registration within 30 days of the compliance made of the direction given in (a). (c) The L.D.A. shall pay within 30 days of this order to the complainant interest at the rate of 18% per annum on the amount of Rs. 44,183/- (forty four thousand one hundred eighty three) from the date of its deposits to the date of the delivery of the possession which is 26.5.1987. (d) The L.D.A. shall pay Rs. 25,000/- as compensation for the mental agony, physical harassment etc. within 30 days of this order. (e) The L.D.A. shall pay Rs. 28/360/- spent on repairs within 30 days of this order, and also (f) The L.D.A. shall repair the left ever item of the house as per direction given above within 2 months failing which it shall pay Rs. 14,800/- to the complainant immediately after this period is over. (g) The L.D.A. shall pay Rs. 10,000/- (Rs. ten thousand) as compensation for the delay in delivery of the possession to the complainant within 30 days of the order. (h) The L.D.A. shall also pay Rs. 2,500/- as cost of these proceedings within 30 days of this order. (i) If the amounts mentioned in (c), (d), (e), (f), (g) and (h) above are not paid in time allowed the complainant shall further be entitled to an interest at 18% per annum thereon from the due date to the date of actual payment. (j) It is also further ordered that if the complainant fails to give effect to the directions given in (a) and (b) in the time allowed the L.D.A, shall pay to the complainant Rs. 50/- per day from the due date till the date of the actual compliance is made. Let a copy of this order be made available to the parties within two weeks by post as per rules.

Complaint allowed.