VISHNU KUMAR BHARGAVA vs CHAIRMAN, LUCKNOW DEVELOPMENT AUTHORITY

THIS is a complaint filed by Mr. V.K. Bhargava against Chairman and Vice Chairman of the Lucknow Development Authority, opposite party Nos. 1 and 2 under Section 17 of the Consumer Protection Act. Briefly stated the facts of the case are as follows.

THE Lucknow Development Authority floated a scheme vide publication dated 25.10.1982 for registration of plots/houses for sale in the Gomti Nagar Housing Scheme. In response to this, the complainant applied for registration of "A" type plot in the aforesaid scheme. According to the booklet brought out by Lucknow Development Authority, "A'' type plots were of around 6000 sq. ft. for which the complainant was an applicant. THE complainant deposited the registration fee of Rs. 20,000/- on 24.11.1982, but registration number and its receipt were not made available to him inspite of his request to the opposite party to send in the same. Subsequently the complainant was allotted plot No. 1/54-A in Vijay Khand, Gomti Nagar vide Allotment Letter No. 471/J.S.-2 dated 15.4.1983 and Registration No. 1-B-4 dated 18.4.1983 were issued to him. THE complainant as per requirement of Lucknow Development Authority deposited the cost of the plot amounting to Rs. 60,826/- on 4.6.1983. THE cost of the plot at the then existing rates was Rs. 13/- per sq. ft. Thus the total cost of a plot of 6000 sq. ft. would have been Rs. 78,000/- plus Rs. 20,000/-, equivalent to Rs. 80,826/-, as the area of the plot allotted to him was slightly more than 6000 sq. ft. The plot No. 1-54-A in Vijay Khand allotted to the complainant was in the low lying area and, therefore, he moved an application to O.P. No. 2 to change it to either Vishwas Khand or Vivek Khand. A reminder was also sent. Instead of allotting a fresh plot either in Vishwas Khand or Vivek Khand, the complainant was offered a plot in Vishal Khand on payment of change fee of Rs. 2,425/-. He was asked to do so by 7.4.1984 failing which the said offer of transfer to Vishal Khand was to lapse. Since the complainant had made a request for change to Vishwas Khand or Vivek Khand and he was not interested in a plot in Vishal Khand, he did not deposit the change fee. In this connection he wrote letter No. 459/J.S. 2 dated 30.3.1984 to Lucknow Development Authority but no reply was received. The complainant had been visiting LDA Authorities but nothing was done. Again he sent a letter on 24.1.1987 requesting for a change of plot either in Vishwas Khand or Vivek Khand but again nothing was done. Correspondence was made again for this request and eight years lapsed. The complainant was keen to complete the registration formalities of the plot in Vijay Khand when his request was not granted for change of plot to either Vishwas Khand or Vivek Khand. The complainant had been sending representations time and again with no result.

The complainant has stated that he was shocked to know that plot No. 1-54-A ''A'' Type Vijay Khand allotted to him on 15.4.1984 does not exist in his name and has been allotted to some other person. The original file of the complainant was missing and again he made a written request to LDA to this fact. Again correspondence was made with LDA and number of visits were made yielding no results. The complainant has been waiting for delivery of possession for last 11 years and he had sent a representation on 13.9.1994 by hand to the Vice Chairman vide Arnexure 14 requesting that the plot duly allotted to him be given possession of and in case it was not possible, any other similar plot in Gomti Nagar be allotted to him. On 9.3.1995 the complainant was informed that instead of plot No. 1 /54-A Vijay Khand, originally allotted to him, he was offered a ''B'' type plot, 3-5/69 in Vineet Khand although the complainant had deposited full cost of ''A'' type plot in June, 1983. Instead of ''B'' type plot in Vineet Khand, was smaller in size and high tension line was also passing over the plot rendering the plot practically unfit for constructing a house. Later on his representation, opposite party informed the complainant that ''A'' type plot was not available and in this process the opposite party has systematically practised fraud against him, who deposited full cost of ''A'' type plot way back in 1983. Opposite party, with ulterior motive and mala fides has given the complainant''s plot to some other person and has failed to honour their own commitment after receiving the entire price of the plot. This was not only a deficiency in service under the Consumer Protection Act but was also an act of gross negligence in deliberately withholding the delivery of possession. The complainant has thus suffered a heavy financial loss in the shape of increasing cost of construction and building material and has been subjected to mental trauma. The complainant has asked for the following reliefs : Difference in the cost of plot originally allotted on 15.3.1983 and possession of which not delivered 11,20,000/- Expenses incurred by the complainant in visiting Lucknow from Jaipur 25,000/- Escalation in the cost of construction, labour and building material 6,25,000/- Incidental and legal expenses 20,000/- Compensation for physical and mental agony and torture 1,00,000/-

HE has therefore claimed that he be awarded a sum of Rs. 18,90,000/- or in the alternative be given possession of an ''A'' type plot in Vijay/Vivek/Vishwas Khands plus damages of Rs. 6,25,000/- and Rs. 1,45,000/- as detailed above. The complainant filed affidavit in support of allegations contained in the complaint on 17.9.1996.

LUCKNOW Development Authority filed a written statement on 11.7.1997 supported by affidavit of the Joint Secretary of the Authority. In their written statement, opposite parties have admitted allotment of plot No. 1/54-A in Vijay Khand and subsequent allotment in Vineet Khand. They have further stated that since the desired plot was not available in Vivek Khand or Vishwas Khand, therefore, a plot of ''A'' type A-2/12 was allotted to him in Vishal Khand provided he deposited change fee which the complainant did not do. Since as per request of the complainant the plot was changed from Vijay Khand to Vishal Khand, the plot in Vijay Khand was allotted to some other person in the waiting list. It was denied by opposite parties that there was a high tension line passing through B-5/69 Vineet Khand. A B-type plot was allotted to him as A-type plot was not available. It was stated that the complainant was not keen to take possession of the plot. Therefore, inspite of the fact that he had deposited the money long back, he was not taking possession. The LUCKNOW Development Authority have also stated that possession of originally allotted plot in Vijay Khand 1-54/A could not be given to the complainant because there was unauthorised occupation over the plot and the same could be given only to the person who could remove that unauthorised occupation and that is why the possession was given to the person in the waiting list. The complainant is, therefore, not entitled for any relief as he did not accept change in the plot in Vishal Khand. The written statement of the opposite party was contested in the rejoinder affidavit filed by the complainant. It was stated that in the allotment letter of A-type plot in Vijay Khand, it was nowhere mentioned that plots will be delivered to the allottees only after they would be released from the illegal occupation. The complainant was in regular touch with the opposite party and this fact was never brought to his notice. The opposite parties suo moto allotted the plot to another person when he did not ask for its cancellation and the plot should not have been transferred to some other person unless he had accepted the condition of the change fee. We have gone through the evidence on record. We have also heard Mr. Ashok Mehrotra, learned Counsel for the complainant and Mr. S.N. Tewari, learned Counsel for the opposite parties. Written arguments of the two parties are also on record which have been gone through.

THE scheme of allotment of plot in Gomti Nagar commenced on 1.2.1982. Full payment as required by the opposite party was made by the complainant on 4.6.1986, in respect of the plot 1-54/A Vijay Khand. THE allotment letter was issued on 15.4.1983. THE brochure of the scheme Annexure A, categorises various plots which includes the plot in Vijay Khand. THE rules of allotment made by LDA vide Annexure-II also provide for change, in case the allottee wants a change. THE allotment letter dated 15.4.1983 is a clear proof of the fact that allotment of A-type plot No. A-l/54 in Vijay Khand was made to the complainant. Receipt of the entire amount deposited is Annexure 6. From Annexure 7 onwards is the correspondence between the opposite parties and the complainant. On perusal of the correspondence, we find that the complainant, at no time, had agreed for a change of the plot from Vijay Khand to Vishal Khand. He had asked for an alternative A-type plot in Vishwas Khand/Vivek Khand. Since the opposite party could not give him a plot of the same size in these two Khands, he was at liberty not to accept the plot allotted in Vishal Khand because he had not applied for the same. THErefore, the LDA should not have allotted him a plot elsewhere and since documents on record show that he had not opted for plot in Vishal Khand, the allotment already made in Vijay Khand should not have been cancelled suo moto. THE subsequent plea taken by Lucknow Development Authority that the plot in Vijay Khand was under illegal occupation and was allotted to the waiting list person who could have himself got the illegal possession removed.

THIS plea cannot be accepted by us. In the allotment letter for Vijay Khand, such a condition was not laid down. Secondly when an allottee pays the entire cost of the plot allotted, the total responsibility for delivering the possession of the plot so allotted was of the opposite party. Therefore, the conduct of the opposite party in allotting the plot in a scheme where the complainant has not agreed or has not applied, deserves to be condemned. In the first instance without his consent the complainant was given an A-type plot in Vishal Khand, secondly when he made lot of representation, he was allotted a B-type plot in Vineet Khand which he never wanted. Therefore, the opposite party LDA should not have allotted plot No. A-54/1 Vijay Khand to some other person, when the complainant had not agreed for any change. It appears that because of lot of running made by the complainant and representations preferred to various Authorities, the opposite parties allotted him plots in Vishal Khand and subsequently in Vineet Khand whereas the complainant has been asking for an A-type plot in Vijay Khand or in the alternative asking for same type of plot in Vijay or Vishwas Khand. In view of the foregoing discussion, the complaint is liable to be allowed. As to the question of relief, the complainant has suffered because of non-delivery of possession and because of delay running into more than 14 years. Therefore, it will be in the fitness of things to direct the opposite parties to give possession to the complainant of A-type plot in any one of the scheme in Vijay Khand, Vishwas Khand or Vivek Khand and also damages as quantified below.

Allotment of the plot was made to the complainant on 15.4.1983 and the entire cost of Rs. 80,826/- was deposited by 4.6.1983. The complainant continued to represent the opposite party till 1995. He has therefore asked for difference in the cost of plot and resultantly escalation in cost in the cost of construction, labour and building material. Keeping in view the facts of the case we find that immediately after the original allotment in Vijay Khand, the opposite party instead of taking steps for delivery of possession, wanted a change in two different Sectors. Therefore, the opposite party had to be given some time for considering the question. It s a different matter that he was not allotted the plot in the desired Sectors and was instead allotted plots somewhere else without his consent. Therefore, instead of allowing difference of cost in the price of plot, it will be justified to award compensation at the rate of 18% interest per annum from the date of deposit till the date of payment in case an ''A'' type plot of the same size and specifications is not allotted to him. An amount of Rs. 6,25,000/- has been claimed for escalation in the cost of construction, labour and building. We assess a consolidated compensation of Rs. 1,50,000/- on this account in view of the facts of the case. We also assess the cost of physical and mental agony caused to the complainant at Rs. 25,000/- and other expenses including the cost of proceedings and the legal expenses etc. at Rs. 10,000/-. ORDER The complaint is allowed. The opposite party, Lucknow Development Authority, shall allot an ''A'' type plot of the same size and specifications to the complainant in Vijay/ Vishwas/Vivek Khand within a period of two months which includes the period of delivery of possession and compensation of Rs. 1,50,000/- or escalation in the cost of construction on, labour and building; Rs. 25,000/- as cost of physical and mental agony caused; and Rs. 10,000/- as cost of proceedings and legal expenses. In case it is not possible for the opposite parties to allot him an ''A'' type plot of the same size and specifications, then the complainant will be entitled to the refund of the amount already deposited alongwith 18% interest from the date of deposit to the date of payment as compensation in addition to the relief allowed above. Let copy of this order be made available to the parties as per rules. Complaint allowed. _____________