U.P. State Consumer Disputes Redressal Commission vs RAM KUMAR GUPTA

AGGRIEVED against the order dated 23rd of April, 2009 passed by the U.P. State Consumer Disputes Redressal Commission, Lucknow (for short the State Commission), this revision petition has been filed by Lucknow Development Authority. Vide the order impugned, the State Commission has dismissed the appeal of the petitioner-opposite party-Authority both on the ground of limitation as well as on merit, giving a direction to the petitioner/opposite party to execute the sale deed in favour of the respondent-complainant of the house allotted to him for a price of Rs.5,96,000/- after adjustment of Rs.40,000/- deposited by him and to pay cost of Rs.5000/-.

ACCORDING to the respondent-complainant, he applied for the allotment of a semi built house on Hire Purchase basis in Anucumpa Lake View Scheme floated by the petitioner-Authority. He registered himself by depositing the prescribed registration amount of Rs.20,000/- on the 10th of May, 1995. He further deposited another sum of Rs.20,000/- on the 30th of April, 1996, which he claims to be the allotment money. While he claims that despite the deposit of the allotment money he was not given the possession of any semi built house and he continued to represent the petitioner-Authority repeatedly for the same, finally he was allotted semi built house no. 3/22 in Vaastu Khand, Gomti Nagar vide Authoritys letter dated 15th of March, 2004. This was done when his complaint was pending before the District Forum. The petitioner-Authority, however, demanded a sum of Rs.7,38,650/- towards the cost of the semi built house as against the cost of Rs.4,60,000/- which was not justified. ACCORDING to him, the cost of the house was fixed at Rs.4,60,000/- and was not amenable to any enhancement as per their own brochure. The petitioner-Authority, therefore, could not ask for any interest or enhanced price. The District Forum had accepted his complaint and directed the petitioner-Authority to hand over possession of house no. 3/22 in Vaastu Khand at the old rate without charging any interest within a month. It further directed the petitioner-Authority to pay Rs.2000/- as compensation and Rs.1000/- towards the cost of the case. Since the counsel for the petitioner-Authority after initial appearance failed to pursue the matter before the District Forum, they were proceeded ex-parte at the time of passing of final order. Dissatisfied with the order passed by the District Forum, the matter was taken up by the petitioner-Authority in appeal before the State Commission, who vide the order impugned has dismissed the appeal both on account of delay in filing the appeal as also on merit and has directed the petitioner-Authority to execute the sale deed of the house allotted to the respondent-complainant for a price of Rs.5,96,900/- subject to adjustment of Rs.40,000/- deposited by the complainant. This price of Rs.5,96,900/- as stated in the order of the State Commission has been communicated to the complainant by the petitioner-Authority vide their letter dated 14th of August, 2008 in modification of the price of Rs.4,60,000/- stated in the brochure. It is this order of the State Commission that is the matter for adjudication in this revision petition.

We have heard Shri Mohd. Moonis Abbas, learned counsel for the petitioner-Authority, and Shri B.S. Sharma appointed as Amicus Curiae to assist the Commission in the disposal of this case.

LEARNED Amicus Curiae has pleaded for the dismissal of the revision petition on the ground that it was a case of concurrent finding of facts and of law. According to him, no interference is called for at the stage of revision since the State Commission has not committed any illegality by dismissing the petitioners appeal as time barred as also on merit. Further, the petitioner-Authority though represented through their counsel had not pursued their case before the District Forum resulting in an ex-parte order having been passed against them. For their repeated lapses and also on consideration of the fact that the respondent-complainant was a handicapped person, the fora below have correctly passed the order directing the petitioner to hand over possession of the semi built house no. 3/22 at the old rate without any interest. Learned counsel for the petitioner-Authority on the other hand has submitted that the orders passed by the fora below are totally unjustified and are based on misplaced sympathy for a so called disabled person. This has resulted in grave injustice to the petitioner-Authority, whose objective is to cater to the housing needs of the public at large at no profit no loss basis. He contends that the housing scheme Vinumra Khand, Gomti Nagar floated by the petitioner-Authority did not have any reservation for any special category like the physically handicapped persons and was open to all. The respondent-complainant had applied as a general applicant and had deposited a sum of Rs.20,000/- towards the registration amount. His application had been subjected to the draw of lots like that of other applicants but he had not been successful. He was accordingly given an option to get the refund of his registration amount or to opt for allotment of plot/house in any other scheme of the petitioner-Authority. In fact, on the preference of the respondent-complainant, the petitioner-Authority allotted him a 200 sq. mt. plot in Vaastu Khand area of Gomti Nagar. The respondent-complainant never raised any objection with regard to the said allotment of the plot but at the same time he failed to deposit any amount towards the cost of the plot despite repeated reminders. Vide a letter dated 17th of July, 1999, the respondent-complainant mischievously tried to reopen the settled issue of allotment of the said plot and again wanted a semi built house. Learned counsel contends that the respondent-complainant had been changing his stands after accepting the plot and has been avoiding payment of any amount other than the Rs.40,000/- which he had deposited way back in 1995-1996. When the matter was pending before the District Forum and considering the repeated request of the complainant, the petitioner-Authority went out of the way to allot a semi built house no. 3/22 at the original old price of Rs.5,96,000/- and demanded interest thereon which the complainant has failed to comply with. Cleverly, he filed a consumer complaint and the District Forum as also the State Commission without considering that apart from Rs.40,000/- deposited by the complainant during the year 1995-1996, he had not paid a single penny. It was on 5th of June, 2009 after the order was passed by the State Commission that the respondent-complainant deposited a sum of Rs.5,96,900/-. The counsel submits that the State Commission has totally failed to take into account the correct factual position and has been carried away by the say of the complainant ignoring even the factual position evident from the records.

ON the preliminary objections raised by learned Amicus Curiae, learned counsel for the petitioner submits that the petitioner being a public authority, the delay should have been condoned by the State Commission. In this regard, he has relied upon a judgment of the Supreme Court in the case of State (NCT) of Delhi vs. Ahmed Jaan [(2008) 14 SCC 582]. He has, therefore, strongly urged for acceptance of the revision petition. We have very carefully perused the records of the case and have considered the arguments advanced by the counsel for the parties. We have taken note of the fact that the petitioner-Authority was proceeded ex-parte before the District Forum. It appears that a counsel had put in her appearance before the District Forum at the initial stage but had failed to file any written statement or represent the authority in subsequent hearings. Be that as it may, it would be of interest to note that the complainant in his original complaint had sought the following reliefs :- 8. That the complainant is entitled for following claims from the opposite parties Principal amount deposited with opposite parties - Rs.40,000/-. Interest @ 18% P.A. from 1996 to 2002-6-2 - Rs. 39,000/-. Mental agony and pain - Rs.50,000/-.

9.That the Honble Forum has full jurisdiction to entertain this complaint in view of S.11(1) of C.P. Act to the extent amount involved being within Rs.5,00,000/- at District Consumer Forum, Lucknow as property and cause of action lies within jurisdiction and territorial limit of this Honble Forum. 10. That the complaint is filed within the time limit as provided u/s 24 of C.P. Act. 11. That the complainant humbly request that Honble Forum admit the complaint u/s 12(1) of C.P. Act.

As is evident, the prayer of the complainant was confined to refund of deposited amount of Rs.40,000/- with interest @ 18% per annum and compensation of Rs.50,000/-. It did not refer to either the allotment or handing over possession of semi built house no. 3/22 at the old price. However, the complainant appears to have filed an amended complaint changing his prayer clause seeking perhaps the allotment of semi built house no. 3/22 at the old price and its possession. Unfortunately, the amended complaint is not on record but be that as it may, since the petitioner-Authority was being proceeded ex-parte and the complainant had altered its prayer clause substantially, it would have been appropriate for the District Forum to have issued notice to the petitioner-Authority on the application for the amendment of the prayer clause of his complaint specially when their counsel, after initial appearance, had failed to defend the Authority. Barring a bald reference about the amended complaint, the order of the District Forum is totally silent on this aspect. Further, a reading of the initial complaint refers to the allotment of plot no. 3/18 instead of the semi built house, about which the learned counsel for the petitioner has made a reference. Rather than making any payment towards the cost of the plot, it appears that the complainant had cleverly been delaying the matter and not making any payment so as to get a semi built house. The complainant has not denied that he was issued a number of letters asking to deposit the amount towards the cost of the plot. He, however, did not deposit any amount on the specious plea that he never opted for the allotment of a plot. Records, however, speak otherwise. From the records, specially the letters addressed by the Authority to the complainant dated 2nd of August, 1999 and 25th of May, 2002, it can be safely held that the complainant had been entering into correspondence with the Authority with regard to the allotment of the said plot but had not deposited any amount. In this process, he appears to be aiming only to getting a semi built house for which he had applied in the year 1995. The petitioner-Authority finally allotted him the semi built house vide their letter dated 15th of March, 2004 and asked him to pay a sum of Rs.7,38,650/- towards the cost of the semi built house. What the fora below ought to have decided is as to whether the amount of Rs.5,96,900/-, being the original price of the semi built house as brought out in the order of the State Commission, was justified to be paid by the complainant without any interest? To arrive at a judicious decision they ought to have referred to the brochure which the complainant has himself filed. As per the terms incorporated in the brochure, even if the respondent complainant had been allotted a semi built house, the cost of which initially was Rs.4,60,000/- but subsequently modified to Rs.5,96,900/- during the year 1995 itself, he would have had to comply with the schedule of payment, which stipulated that an allottee was to pay six quarterly installments of Rs.36,750/- without interest and the remaining amount was to be paid on quarterly basis with interest over a period of 15 years. In that eventuality, the respondent complainant ought to have complied with the schedule of payment but the complainant did not do so by the clever method of repeated representation not to accept the plot and thereby not making any payment over the period of over 14 years. He cannot be permitted to get undeserved benefit of getting the plot at the initial cost without any interest. This aspect has been completely overlooked by both the fora below. While the condition of the semi built house over the period may have deteriorated, the fact remains that the cost of the piece of land over which the semi built house is located itself has appreciated phenomenally and thus the order of the State Commission to hand over possession of the semi built house at the original price cannot be justified. The Honble Supreme Court in the case of Bangalore Development Authority Vs. Syndicate Bank [(2007) 6 SCC 711] has also held that the aspect of escalation in the cost of the plot should be taken into consideration while deciding such matters. While on this it may also be stated that on the suggestion of this Commission to the petitioner-Authority to consider somewhat lenient view with regard to charging of penal interest, the petitioner-Authority was fair enough to ask the respondent complainant to make a representation before the Authority to settle the matter under their One Time Settlement (OTS) provision. The respondent complainant was advised accordingly. The petitioner-Authority had thereafter agreed to consider the case of the complainant on compassionate basis if he applied for OTS. Our order dated 19th of January, 2011, which is relevant, is extracted below :- Learned counsel for the petitioner-Lucknow Development Authority under instructions states that the petitioner-authority is preparing to consider the case of the complainant on compassionate basis, he being a disable person if he applies for One Time Settlement and at least is in a position to pay simple interest on the original cost of the house in question. The respondent, who is present in person undertakes that he will make such an application for settlement of his case on One Time Settlement basis within two weeks and on doing so, the same shall be considered by the petitioner-authority and the decision thereon shall be communicated to the respondent and to this Commission within four weeks thereafter. List on 22.03.2011 for admission hearing.

THE respondent complainant having agreed to make such an application, however, subsequently failed to appear before this Commission. Further, he has failed to give any instruction on the subject to the Amicus Curiae. This is indicative of the stubborn attitude of the respondent-complainant, which cannot be sustained. On face of the fact that he had failed to deposit any installment despite repeated reminders from the petitioner-Authority earlier with regard to the cost of the plot and later even after the allotment of the semi built house no. 3/22, he forgets that the petitioner-Authority was fully within its right to cancel the allotment and refund the amounts deposited by him. Since the petitioner-Authority has taken a lenient view and allotted the semi built house no. 3/22 on 15th of March, 2004, he ought to have immediately paid the original cost of Rs.5,96,000/- after adjustment of Rs.40,000/- deposited by him earlier and then represented the petitioner-Authority with regard to the waiver of penal interest etc. Having failed to do so and keeping in view that his original complaint was only for the refund of the amount, he would be entitled to the refund with some interest. Both the fora below have failed to consider this aspect and have committed serious irregularities simply holding that the respondent-complainant was a person with disability and he could not have supervised the construction of a house on the plot allotted. THE complainant had earlier appeared before us in person and we did not find any serious physical disability. Such sympathies are misplaced and should be avoided by the consumer fora ignoring the fact that the housing authorities set up by various governments operate on no profit no loss basis and they too deserve proper consideration to keep their activities going. Mere technicalities should not overtake the dispensation of substantial justice.

BE that as it may, since the respondent-complainant has been allotted a semi built house as desired by him on 15th of March, 2004 at the original cost of Rs.5,96,900/- and he has failed to pay any amount except Rs.40,000/- which was deposited during the years 1995-1996, he cannot be permitted to any waiver of interest from this date of allotment i.e. 15th March, 2004. We accordingly while allowing this revision petition direct as under :- (a) The petitioner-Authority will pay simple interest @ 6% per annum on the sum of Rs.40,000/- deposited by the respondent-complainant during the years 1995-1996 until the 5th of June, 2009 when the complainant had deposited the amount of Rs.5,56,900/- after adjustment of Rs.40,000/- already deposited by him as the original cost of the house.

(b) The respondent-complainant will pay simple interest @ 6% per annum on the sum of Rs.5,96,900/- from the date of allotment of the house i.e. 15th of March. He would be entitled to the adjustment of the amounts paid by him i.e. Rs.40,000/- and Rs.5,56,900/-. The petitioner-Authority will calculate the additional amount payable by the complainant in the above terms and inform him within a period of two weeks from the date of receipt of copy of this order. On receipt of the calculation so made by the petitioner-Authority indicating the amount to be paid by him, the complainant will deposit the demanded amount within a period of two months thereafter. (c) On payment of the amount so calculated after adjustment, the petitioner-Authority will hand over possession of the house and execute the sale deed within a period of one month thereafter.

The revision petition, accordingly, is allowed in above terms.