Sofiya Badar vs LUCKNOW DEVELOPMENT AUTHORITY

IT is painful and galling that a prestigious Government institution like Lucknow Development Authority (L.D.A.) is large on promises but short in performances. An ordinary citizen or a common man is hardly equipped to match the minds of state or its instrumentalities. The Judiciary has to act as a check on the arbitrary and capricious exercise of power and work as bulwark against the excesses committed by the executive.

THE L.D.A. floated the scheme as Panchwati Residential Scheme in the year 1995. The salient features of this scheme are as follows: - (i) Payment through hire purchase in 15 years.

(ii) No increase in declared sale price.

(iii) Possession of the house will be delivered till September, 1996. The estimated sale price of the flat measuring 115.50 sq. mt. was Rs.4.25 lacs. The payment was to be made in six quarterly installments for Rs. 35,000/ - each, without any interest and the remaining amount was to be paid in 15 years in quarterly installments with interest. The complainant deposited Rs.15,000/ - towards registration amount on 9.8.95. The complainant further deposited Rs.15,000/ - towards allotment money on 29.12.95. Three installments in the sum of Rs.35,000/ - each, total being Rs.1,05,000/ -, till September 1996 from 31.12.1995 was paid. However, there was delay and the flat could not be handed over. The complainant deposited Rs.74,000/ - on 07.06.2001.

THE Opposite Party demanded Rs.3,40,364/ - vide letter dated 25.08.2001. The complainant raised an objection that this demand was contrary to the terms and conditions of this scheme vide its letter dated 29.08.2001. The complainant, further deposited another installment for Rs.31,000/ - on 31.08.2001. Till filing of this complaint, the petitioner had deposited a total amount in the sum of Rs.1,35,000/ -. However, she was not put in possession of any house. The OP sent another letter dated 20.05.2004 received on 5.6.2004 wherein a demand of Rs.6,06,277/ - was raised or else it was threatened that the allotment of the house would be cancelled. The complainant protested the same. It is contended that the petitioner has committed deficiency. Consequently, the complainant filed a complaint before the District Forum. The OP contested this case. The defense set up by the O.P. was that at that time the cost of the land was low. The prices have increased. Although, the OP had given a date of possession as 30.12.1996, yet, it is not bound by the same. It is further explained that due to agitation of the farmers, it took time in getting the possession of the land.

THE District Forum directed the OP to deliver the possession of house MIG -4/23, Vistar Khand, Gomti Nagar, Lucknow, within 60 days after executing the Hire Purchase agreement of the initial costs of Rs.4.25 lacs without charging interest over it. It further ordered that the remaining installments will be paid by the complainant within the span of 15 years from the date of Registration. In addition to this, the complainant was awarded Rs. 10,000/ - for mental agony and harassment and Rs. 2000/ - as cost of case.

AGGRIEVED by that order, the appeal was filed before the State Commission. The State Commission accepted the appeal filed by the OP with the direction to send the details of the sum unpaid on the strength of the increased cost without adding interest to it within one month from the date of receipt of that order. It was further ordered that it will be obligatory for the complainant to deposit the said amount within three months and thereafter the LDA will execute the sale deed and deliver the possession of the house in question within a month.

AGGRIEVED by that order, the Revision Petition was filed by the complainant. The respondent was proceeded against ex -parte. The evidence on the record clearly goes to show that the complainant sent correspondences/letters without number for getting the possession. However, it did not ring the bell. The complainant has proved on the record letters dated 22.06.1996, 22.07.1996, 26.12.1996, 15.04.1997, 10.05.1997, 06.07.1997, 20.07.1997, 31.08.1997, 11.04.1998, 26.06.19098, 31.12.1998 and January 1999.

IT is thus clear that the OP approached the problem in a lackadaisical manner. It is also apparent from the record that possession was ultimately given at the direction of this Commission in the year 2010. The complainant had to pay Rs. 74,000/ - under protest to the OP. The OP executed the sale deed on 31.07.2010 and also gave the possession on the same day.

THE State Commission placed reliance on the authority titled as "Seema Versus K.D.A." to the effect that the increase in the costs is the right of the respondent, dependent upon related circumstances provided the increase in the price is not by the arbitrary exercise of the discretion or is not capricious in nature. The State Commission also observed that on any contingency arising out of increase in cost by the order of administration or by the order of the court or any other reason not in control of LDA.

FOR the following reasons we are unable to concur with the view taken by the State Commission. The facts of this case are wee bit different. It was clearly, specifically and unequivocally stipulated from the very start that there would be no increase in the declared sale price. The OP has given two reasons for enhancement of the price, firstly, there was increase in price and it took time to get the possession from the farmers. The OP has failed to produce even an iota of evidence, which may go to show that the delay was caused by the farmers. This is a mere allegation which is not bolstered by a scintilla of evidence. So far the prices are concerned, the OP should have pondered over this point when the scheme was being formulated. It is difficult to fathom why did they take the consumers/allottees for a ride. The allottees were to get the possession of the house on 30.12.1996 but they got the possession in the year 2010 after an inordinate delay of 15 years. They must have spent a lot of amount on rent. The procrastination on the part of the L.D.A. must have caused enough immeasurable loss to the allottees, consequently, the above cited authority relied upon by the petitioner does not dovetail with the facts of this case.

ON the contrary, the Apex Court in the celebrated authority reported in Kanpur Development Authority Versus Smt. Sheela Devi and others etc., 2004 1 AWC 739, was pleased to held: - "Each case is to be decided in the facts and circumstances of the case in the light of the scheme published/framed and the terms and conditions mentioned in the brochure and/or in the prescribed form of application in the matter of escalation/determination of cost of house/flat. However, cases where there is limit for fixing the escalation of cost, normally the price of house or flat cannot exceed the limits so fixed. The determination of cost cannot be arbitrary or erratic. The authority has to broadly satisfy by placing material on record to justify the escalation of cost of a house/flat".

IN "Motilal Sugar Mills Vs. State of U.P., 1979 AIR(SC) 621" it was held: - "The law may, therefore, now be taken to be settled as a result of this decision, that where the Government makes a promise knowing or intending that it would be acted on by the promise and, in fact the promise, acting in reliance on it, alters his position, the Government would be held bound by the promise and the promise would be enforceable against the Government at the instance of the promise, notwithstanding that there is no consideration for the promise and the promise is not recorded in the form of a formal contract as required by Article 299 of the Constitution".

IN "Rookes v. Barnard,1664 AC 1129 ", it was observed by Lord Devlin: - ''the servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service'', a public functionary if he acts maliciously or oppressively and the exercise of powers results in harassment and agony then it is not an exercise of power but its abuse. No law provides protection against it. He who is responsible for it must suffer it. Compensation or damage as explained earlier may arise even when the officer discharges his duty honestly and bonafide. But when it arises due to arbitrary or capricious behavior then it loses its individual character and assumes social significance Harassment of a common man by public authorities is socially abhorring and legally impermissible. It may harm him personally but the injury to society is far more grievous. Crime and corruption thrive and prosper in the society due to lack of public resistance. Nothing is more damaging than the feeling of helplessness. An ordinary citizen instead of complaining and fighting succumbs to the pressure of undesirable functioning in offices instead of standing against it. Therefore, the award of compensation for harassment by public authorities not only compensates the individual, satisfies him personally but helps in curing social evil. It may result in improving the work culture and help in changing the outlook. Wade in his book Administrative Law has observed that it is to the credit of public authorities that there are simply few reported English decisions on this form of malpractice namely, misfeasance in public offices which includes malicious use of power, deliberate maladministration and perhaps also other unlawful acts causing injury. One of the reasons for this appears to be development of law which apart from other factors succeeded in keeping a salutary check on the functioning in the Government or semi -government offices by holding the officers personally responsible for their capricious or even ultra vires action resulting in injury or loss to a citizen by awarding damages against them".

THE observations of Lord Hailsham in "Cassell and Co. Ltd. v. Broome, 1972 AC 1027 also aptly apply to this case.

ALSO see Ghaziabad Development Authority V. Balbir Singh,2004 AIR(SC) 214) Bihar State Housing Board Vs. Prio Ranjan Roy, 1997 6 SCC 487 , Smt. Hardeep Kaur Chhetra vs. Chandigarh Housing Board,2002 49 ALR 12, Bharat Heavy Electricals Ltd. Versus State of U.P. and others,2003 AllCJ 2204 and State Inspector of Police, Visakhapatnam Versus Surya Sankaram Karri,2006 AllCJ 2079.

UNDER these circumstances, we hereby set aside the order passed by the State Commission and restore the order passed by the District Forum. The OP is entitled to retain a sum of Rs.4.25 lacs. The extra amount be returned to the complainant/petitioner with interest @ 9% from the date the amount was received till its realization. The OP is also directed to pay costs in the sum of Rs.12,000/ - imposed by the District Forum, which stands further increased by Rs.24,000/ -, which will also be paid within a period of 90 days from the date of receipt of this order, otherwise it will carry interest @ 9% till its realization.