NATIONAL
CONSUMER DISPUTES REDRESSAL COMMISSION
(from the order dated 19.7.99 in Appeal No.2592/SC/98 of the
State Commission, U.P.)
Ram
Kishore Tiwari …
Petitioner
Versus
(From the
order dated 19.7.99 in Appeal No.2592/SC/98 of the State Commission, U.P.)
Ram Kishore Tiwari … Respondent
BEFORE
:
HON’BLE
MR.JUSTICE M.B. SHAH, PRESIDENT
DR. P.D. SHENOY, MEMBER
For the
Petitioner (G.D.A.) : Mr. K.N. Nagpal, Advocate
For the
Respondent (Ram Kishore Tiwari) : In person
It is
the case of the complainant that he had applied on 30.11.1988 for a flat which
was being constructed by Ghaziabad Development Authority (hereinafter referred
to as the GDA) under Kaushambi Apartments, Phase-II, Self
Financing Scheme. The cost of the flat
was fixed at Rs.3 lakhs. He deposited
Rs.30,000/- on the same day and thereafter Rs.30,000/-
on 23.3.1989. Again he deposited Rs.60,000/- on 5.2.1991.
Thereafter, vide letter dated 23.7.1991, the GDA allotted Flat No.103,
‘Aravali Apartments’ with an indication that the complainant should take
possession of the flat after paying a sum of Rs.45,000/- and he was informed
that value of the flat was Rs.3,45,000/-.
It is contended by the complainant that possession of the flat was not
delivered to him and that from the other allottees of the same building the GDA
has recovered the cost of the flat at the rate of Rs.2,60,000/-. Hence, he filed Complaint Case No.1227 of
1994 before the District Forum,
On receipt of
the notice GDA filed written version admitting that complainant has deposited
the amount but the cost of the flat was tentative and, therefore, he was
required to pay the final price which was fixed at Rs.3,45,000/-. It was also pointed out that the price of the
flat at Kaushambi Apartment, Phase-I was no doubt Rs.2,60,000/-
but complainant was allotted flat in Kaushambi Apartment, Phase-II, where the
price was Rs.3,45,000/-.
The District
Forum by its judgement and order dated 21.9.1998 arrived at the conclusion that
flats for which cost of Rs.2,60,000/- was charged were
allottees in Phase-I. As against this,
complainant is allotted flat in Phase-II where the price fixed was
Rs.3,00,000/- which was only estimated cost and the same has been enhanced by
Rs.45,000/-. Therefore, the cost of Rs.3,45,000/- realized by the GDA cannot be said to be
illegal. However, it arrived at the
conclusion that there was delay on the part of the GDA in handing over
possession as in a Self Financing Scheme the complainant has deposited the last
instalment on 5.2.1991 and, therefore, possession ought to have been delivered
by 31.3.1991. Hence, the complainant was
entitled to recover interest for delayed period from 1.4.1991 till the date of
possession. The District Forum,
therefore, ordered that the GDA shall deliver the possession of the allotted
apartment after fully developing it with essential services within two months
from the date of the order ; it shall pay interest to
the complainant at the rate of 18% per annum from 1.4.1991 till the date of
handing over of possession and pay Rs.2000/- towards costs.
Against that order, the complainant
preferred Appeal No.2592/SC/1998 before the State Commission, U.P. The GDA also preferred Appeal
No.2593/SC/1998. Both the appeals were
heard together.
The State Commission held that admittedly
there are two phases in which Kaushambi Apartments have been constructed. For
Kaushambi Scheme Phase-I, the price of the flat was Rs.2,60,000/- while the price fixed for Phase-II was
Rs.3,00,000/-. Thereafter, escalated price
of Rs.45,000/- has to be paid by the complainant. The Commission observed that the complainant
has deposited Rs.3,00,000/- in the year 1991 but has
not deposited escalated price of Rs.45,000/- till 18.8.1998. He deposited a sum of Rs.51,795/-
only on 18.8.1998. The Commission
further held that there was no evidence on record to show that the letter dated
10.7.1991 for delivering the possession of the flat was served upon the
complainant. Therefore, there was no question of depositing the escalated cost
of Rs.51,795/- at that time. The Commission, therefore, observed that even
after depositing Rs.51,795/- on 18.8.1998, the
possession of the flat was not delivered by the GDA. Hence, appeals filed by the complainant and
the GDA were dismissed.
Against that
order, complainant has filed Revision Petition No.2267 of 1999 and the GDA
filed Revision Petition No.1871 of 1999.
In the
Revision Petition filed by the GDA, at the time of admission of the matter,
this Commission by its order dated 16.12.1999 rejected the prayer for stay of
the execution of the order passed by the State Commission. Against that order, GDA preferred SLP before
the Supreme Court. The Supreme Court
directed that pending disposal of the revision application,
GDA shall pay interest @ 12% per annum for delay in handing over possession.
In this Revision Petition, the
grievance of the complainant is that the GDA has allotted the flats in the same
building, of the same area, by fixing the price at Rs.2,60,000/-. It is his contention that the GDA had
arbitrarily recovered Rs.3,00,000/- from him and had also directed to pay Rs.45,000/- as
escalated cost. He pointed out that the
State Commission committed error in
referring to Phase-I and Phase-II of Kaushambi Apartment Scheme because all
throughout he has referred to allotment of flats in Aravali Apartments.
After hearing the matter on
However,
considering the fact that at the time of allotment of flat to the Complainant
in the year 1988 the price fixed was Rs.3 lakhs which was accepted by the
Complainant, and, therefore, at this stage it would not be proper to modify the
said price fixation.
In
this view of the matter, the Revision Petition filed by the Complainant is
dismissed. There shall be no order as to costs.
Revision Petition No. 1871 of 1999 (Filed by the GDA)
The
only question that requires consideration is whether the Complainant should get
compensation/interest at the rate of 12% or 18% p.a. from the GDA?
Undisputedly, in
the present case the Petitioner applied for the flat in November, 1988. He
deposited Rs.30,000 on
As against this, learned counsel for
the GDA submitted that in view of the decision rendered by the Apex Court in
the case of Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC
65 there is no question of granting
interest more than 12% p.a. would arise.
In Ghaziabad Development Authority Vs.
Balbir Singh, 2005 CTJ 124 (Supreme Court) decided in Civil Appeal No. 7173 of
2002 on 3.12.2004, the Apex Court, dealing with similar contention, held that
normally in a case of delivery of possession, though belatedly stands on a
different footing from non-delivery of possession, because in case of delivery
of possession though belatedly the allottee enjoys the benefit of
flat/plot. Generally, in such cases rate
of interest should not exceed 12%.
However as already observed by the
“Normally, a case of delivery of
possession, though belatedly, stands on a different footing from non-delivery
of possession at all because in case of delivery of possession, though
belatedly, the allottee also enjoys the benefit of plot/flat. Generally, in such a situation, the rate of
interest should not exceed 12%. However, as already observed by this Court in
Balbir Singh’s case (Supra) no hard-and-fast rules can be laid down. In a specific case where it is found that
delay was culpable and there is no contributory negligence by the allottee
resulting in harassment/injury, both mental and physical, the Forum/Commission
would not be precluded from making an award in excess of 12% interest per
annum. Such order must, however, be supported with reasons.”
The facts and circumstances of the case
are that the allotment letter was issued in July, 1991; possession was not
delivered; the District Forum directed on
It is apparent that there is no
reasonable or justifiable explanation for not handing over the possession. A
retired employee who has paid the entire amount payable by him was deprived of
residential accommodation by high handed exercise of power by the officers of
the G.D.A. Considering these fact, we
direct the G.D.A. to pay interest at the rate of 15% p.a. instead of 18% p.a.
as directed by the District Forum. This
would meet the ends of justice.
In Lucknow Development Authority Vs.
M.K.Gupta (1994) 1 SCC 243, the Supreme Court observed that the authority empowered to function under a
statute while exercising power discharges public duty; it has to act to observe
general welfare in common good; in ordinary matters a common man who has
neither the political backing nor the financial strength to match the inaction
in public oriented departments gets frustrated and it erodes the credibility in
the system; where it is found that exercise of discretion was mala fide and the
complainant is entitled to compensation for mental and physical harassment then
the officer can no more claim to be under any protective cover.
The Court pertinently held
:
“It should further direct the department concerned to pay the amount to
the complainant from the public fund immediately but to recover the same from
those who are found responsible for such unpardonable behaviour by dividing it
proportionately where there are more than one functionaries.”
For
better administration/governance the aforesaid law is required to be
implemented so that the welfare schemes framed by the Government reach the
common consumer and the objects of such schemes are not frustrated.
We
hold that there is total negligence on the part of the concerned officers of
the G.D.A. as they have acted arbitrarily in not delivering the possession to
the Complainant in the year 1991 and in our view, this is a fit case where the competent
authority of the GDA should recover the amount from the concerned officer/
officers who were negligent in discharge of their duties.
In the result, the Revision Petition is
partly allowed and the order passed by the District Forum is modified
accordingly. The G.D.A. is directed to pay interest at the rate of 15% p.a.
from 1st April, 1991 till 30th May, 2000, i.e. till the
date (as contended by the G.D.A.) of handing over possession. The order passed
by the District Forum awarding costs of Rs.2,000/- is
maintained.
……………………………………J.
(M.B.
SHAH)
PRESIDENT
………………………………………
(P. D.
SHENOY)
MEMBER