VIJAI SHANKAR SHUKLA vs LUCKNOW DEVELOPMENT AUTHORITY

THE complainant has filed this complaint under Section 21 of the Consumer Protection Act,1996 (for short the Act). According to the allegations contained in the complaint, the complainant is a legal practitioner earlier residing at Unnao. He had no residential house in Lucknow either in his name or in the name of his family members. The Lucknow Development Authority (for short LDA) is engaged in serving the public in the matter of providing housing facilities by acquisition of land, developing sites and constructing houses flats for benefit of the public. In January 1983 LDA announced for the construction and sale of flats in multi-storeyed building at La Place and Butler Place in Lucknow on "no profit no loss" basis. For this purpose LDA issued a brochure containing the conditions and rules. According to the brochure the approximate cost of a flat was Rs. 2.25 lakhs and the estimated period for completing the construction was 2 years. LDA kept the right of "non-refund" of the money received from the allottee in case the construction was held up due to some unavoidable circumstances. The mode of allotment of the flats originally announced in the brochure was under the following two heads: "(i) Under General Scheme by paying Rs. 20,000/-at the time of registration and subsequently the rest amount to be paid in six instalments of Rs. 34,000/- each every three months after the allotment of the flat; (ii) Under cash down self-financing scheme by paying Rs. 50,000/- at the time of registration and the rest whole amount to be paid within 3 months after the allotment of the fiat.

THE Complainant applied for a fiat at La-Place site under the general scheme and deposited Rs. 20,000/-on 7.2.1983 at the time of the registration. LDA acted arbitrarily by not allotting any flat to the complainant in the general scheme; Consequently On 30th June, 1985 the complainant moved an application to the then Chief Minister of Uttar Pradesh for transferring his case into cash down self-financing scheme. LDA allotted a flat to the complainant vide order dated 5th November, 1985 in self-financing scheme and asked him to deposit the remaining registration fee of. Rs. 30,000A along with interest of Rs. 6,000/- at the rate of 16% per annum from 7th February, 1983. The complainant deposited the above further amount on 26th December, 1985. On 6th June, 1986 LDA allotted flat No. l/l to the complainant on the first floor of Kailash Tower but arbitrarily increased the cost of the flat from Rs. 2.25 lakhs to Rs. 2.85 lakhs and asked the complainant to pay the enhanced amount within a period of three months. On 3rd May, 1986 LDA again increased the cost of the flat to Rs. 3.50 lakhs and demanded Rs. 30,000/- more from the complainant and asked him to pay the said amount by 31st May, 1986 failing which interest would be charged. The complainant had no option except to pay the remaining amount of Rs. 1,94,000/- on 5th May, 1986 and Rs. 41,000/- on 14th June, 1986. It is the further case of the complainant that according to the brochure the flats were expected to be completed within 2 years. On account of delay in the construction of the flat the complement issued several notices to LDA regarding non-performance of obligation on their part and to explain the reasons of enhancement of the costs and delay in construction of the flats. The complainant further narrated his mental agony in respect of non-accommodation of his family members and regarding the inconvenience caused to his two children who were studying in Lucknow and had no residential accommodation at that place. The requested for the possession of the flat. Vide letter dated 26th May, 1998 LDA informed the complainant that the construction of the flats shall be completed by September, 1988. After the expiry of the aforesaid period the complainant again served a notice on 30th December; 1988 stating that he had completed all the formalities and deposited full amount but in spite of his repeated reminders the opposite party was failing to provide possession of the allotted flat to him. He also narrated about the loss of interest on the the amount deposited by him along with other losses including physical and mental torture. On 21st January, 1989, LDA informed the complainant that some dispute between the LDA and the Contractor was the pending under arbitration and thereby the progress in the construction of the flats was slow. LDA further assured that the flat shall be completed at an a early date. On 16th December, 1989, complainant a gave another notice to the opposite party regarding the delay in construction of the flats and regarding his mental and physical agony for the last six years. L.D.A. did not care to reply the same. On 1.8.1990 the complainant again wrote to L.D.A. about the delay in delivery of possession of the flat and further narrated that his entire saving has been paid to the L.D.A. and he has suffered loss and Still he was not getting the flat. According to him it was deficiency in service the part of L.D.A. On 23rd May, 1991 LDA informed the complainant that flat No. 1/1 has been changed and he has been reallotted flat bearing No. 106 on the first floor of the building in the same Kailash Tower. This action of L.D.A. is said to be arbitrary and to meet out some vested interests. The complainant registered his pro-test but in vain. The complainant was informed that the construction of the building shall be completed by July, 1991. On 25th February, 1992 complainant contacted the Works Manager who informed him orally that the sanitary and electric fittings have been completed. The complainant was also informed that possession has also been given to some other persons. Consequently, the complainant moved an application on 25th February, 1992 to LDA and explained his difficulty of commuting daily between Lucknow and Unnao for the last 7 years and further requested delivery on 17.3.1992 to the opposite party mentioning that because the flat allotted to him is on the first floor so the lift will be of no use to him and further requested that the possession may be given to avoid professional losses. The complainant did not receive any reply. The complainant was mentally disturbed and perturbed due to the agony caused by the opposite party which resulted in further inconvemences and hardships to the complainant and his family members from being deprived of the possession of the flat and was also antagonised by further unwarranted and unauthorised demand of money on 15.6.1992 for Rs. 3,59,000/-. Though the complainant was not willing to give any further amount of money to the opposite party but under duress and other compelling circumstances, he paid the amount under protest. The complainant moved another application dated 24.6.1992 to the opposite party and requested them for the delivery of the possession of the flat. On that letter Secretary, LDA ordered CAEP to inform about the actual situation. On 3.8.1992 the complainant made an objection against the unreasonable and arbitrary enhancement in the price of the flat. The opposite party served demand note dated 19.8.1992 to the complainant to deposit further Rs. 3,96,7001- by 20.11.1992. The complainant was shocked because the price of the flat of was exorbitantly raised from Rs. 2.25 laid is to be Rs. 6,85,700/- arbitrarily and unreasonably. The complainant asked for break-up of the construction of work done by the LDA but he did not receive any reply. Under duress he deposited the above amount till on 19.11.1992 after taking loan from a bank.

THE complainant has also complained that the construction work is of poor standard and not according to the terms and conditions of the con tract. No safety precautions have been taken. No iron on grills have been provided in store room, windows, ventilators, connecting gallery and in adjoining door etc. The complainant is said to have spent about Rs. 20,000/- in fixing iron-grills in those places for the safety purposes.

THE complainant again received a letter dated 3.3.1993 from the opposite party demanding on Rs. 14,170/- as lease-rent at the rate of 10% of the cost of land and of the development expenditure. The complainant deposited the amount under protest on 12.4.1993. He got the possession letter on 26.10.1993. The main grievance of the complainant of about the enhancement of the price of the flat and delay in delivery of possession. He has also complained about physical and mental torture and economical loss. He claimed compensation under various heads as detailed in the prayer clause amounting to several laid is on account of deficiency in flat service on the part of LDA.

ON being noticed, the opposite party contested the complaint and pleaded that the cost of the flat and period of construction were mentioned in the advertisement on the kisis of an estimate made by the Architect. The prices quoted earlier were approximate and were liable to be further enhanced. The construction of the flats was expected to be completed within two years. However, due to unforeseen circumstances and also due to reasons beyond the control of the opposite party the construction and completion of the flats was delayed. The complainant was informed that because of the dispute with the Contractor the matter has been referred to arbitration and it was pending for a long time, and as a result of which the progress of the project was very slow. The State Government of Uttar Pradesh decided to purchase the entire ''A'' Block, comprising 71 flats for itself. Thus the flat allotted to the complainant had to be changed under compelling circumstances. However, as by that time the possession had not been handed over to the complainant it did not effect him as such. Moreover, the flat earlier allotted and the changed one were on similar floor and of the same type. The opposite party always wanted to help the complainant. The complainant was informed vide letter dated 12.3.1992 that after the construction was completed and also after the completion of all ancillary items, the final costing will be done and thereafter remaining amount was to be deposited and then only it would be possible to get the registration done and hand over the possession of the flat. The enhancement of the price was neither unreasonable nor arbitrary but because of the compelling circumstances and it was known to the complainant that the price is likely to be enhanced. In para 31 of the counter the opposite party has attempted to explain the delay in construction.

WE have heard the teamed counsel of the parties and gone through the record. It may, however, be mentioned that this Commission has taken a consistent view that after taking possession of a flat/house an allottee cannot challenge the enhanced price charged from him. Reference can also be made to First Appeal No. 241 of 1991, Gujarat Housing Board v. Datania Amritlal Fulchand and Ors. decided on 7.10.1993, (1993)1 CTJ 943 (CP) wherein this Commission has held that pricing of a flat/house is not a consumer dispute falling within the purview of the Act. However, we are of the view that there has al been unnecessary delay in the construction of the flats and in the delivery of possession of the flat to the complainant. It was in January, 1983 when the opposite party had announced about the construction and sale of the flats and according to the brochure issued the estimated period of completion of the construction was stated as two years. The complainant got himself registered in the General Scheme for a fiat on 7.2.1983. Of course, later on the complainant moved an application on 30.6.1985 for transferring his case in to cash down self-financing scheme and his prayer was accepted vide order dated 5.11.1985. He was asked to deposit a further sum of Rs. 30,000A alongwith interest of Rs. 6,000/- over and above the amount of Rs. 20,000/- which lie had deposited at the time of registration. However, the possession of the flat was delivered to p the complainant on 26.10.1993. Thus, it was more 1 than 8 years after the estimated period of completion of the fiats/houses that possession of a flat was deli varied to the complainant. The complainant had a written many letter to LDA about the delay in ded livery of possession of the flat to him and about the agony and inconvenience suffered by him.

THE opposite party has tried to explain away the delay which also caused the escalation in the c price of flats/houses. The first ground pleaded is that there was a dispute with the Contractor which c was referred to a arbitration and the dispute remained pending for long period. There is nothing on the file to show that what kind of dispute was with the Contractor and why it was allowed to re- C main pending for such a long time. In such case (generally the arbitrator is from the Department and he could have been asked to complete the arbitrartion proceedings at an early date because the (allottees had invested their hard earned money for t getting registered for allotment of house/flat.

THE other ground taken is that the building in which the fiat had been earlier allotted to the complainant had been purchased by the State Government. There is nothing on the file to show under what circumstances the LDA was forced to sell the building to the State Government. When the allottees/consumers were awaiting their turn and had deposited several thousands of rupees, LDA was to realise that the allottees/consumers would be put to inconvenience and would suffer mental torture etc. by selling the building to the State Government. This action of the LDA cannot be justified on any ground. After selling that building to the State Government and constructing another building there must have been escalation in price which the hapless allottees had to bear. Considering all the above facts we are of the opinion that LDA is definitely guilty of deficiency in service for which the complainant is en-titled to relief. It may be mentioned here that the complainant has filed some documents to show that he had borrowed money from the Bank and had to pay interest to the Bank.

THE complainant has also claimed an amount of Rs. 20,000/- which he is said to have been spent fixing iron-grills in windows, ventilators, galleries and doors etc. However; he has not led any evidence in support of that expenditure.

IN the light of observations made above, we are of the opinion that the corn payment should be compensated by allowing interest @ 15% p.a. on the. deposits made by him from the respective dates of the deposits till date of delivery of possession. We also allow him ks.50,000/- as compensation for the delay in delivery of the possession. The above amounts should be paid to the complainant. by the opposite party-LDA within three months from the date of the receipt of the copy of this order failing which those will bear further interest at the above rate from the date of the order till payment. The complainant is also allowed Rs. 2,000/- as costs of the present proceedings.