LUCKNOW DEVELOPMENT AUTHORITY vs A.K.Agarwal

THIS is an appeal against the judgment and order passed on 17.3.1998 by District Consumer Forum-I, Lucknow, in Complaint Case No. 323 of 1996.

FACTS of the case, stated in brief, are as follows : The complainant obtained registration for a house in Nehru Enclave Area of Gomti Nagar Scheme and deposited a sum of Rs. 30,000/- on 27.3.1989 with Lucknow Development Authority. House No. R/ 172/GF (ground floor) was allotted to the complainant with an estimated cost of Rs. 4,50,000/- on 30.10.1990. The complainant also deposited 8 instalments of Rs. 52,500/- each from 30.10.1990 to 30.7.1992. By a letter dated 7.3.1993, published in newspapers, the cost of the house was fixed as Rs. 5,59,000/-. A sum of Rs. 1,09,000/-, towards difference in the cost, was also deposited by the complainant.

The house was to be completed by 30.6.1993 but by letter dated 20.4.1994 of the appellant, a further demand of a sum of Rs. 19,810.10 P. was made without any jurisdiction. The possession of the house was to be delivered by 30.6.1993.

THE houses were occupied by unauthorised persons and they were damaged. THE appellant has charged interest but has given no interest on the money deposited by the complainant. THEre is no assurance of delivery of possession, hence the complaint has been filed wherein the complainant has prayed for payment if interest @ 18% per annum on the deposited amount from the date of deposit till the date of factual possession. The appellant in their written version has admitted the deposits made by the complainant beyond time without payment of interest. The appellant has demanded deposit of a sum of Rs. 19,810.10 P. as interest. It is further alleged that the Army has taken over the control of the area, hence it is not possible to deliver the possession of the house under question. In a meeting dated 28.10.1995 the appellant decided to refund the amount deposited with interest @ 9% per annum and the complainant can either wait till the dispute ends or can get back the money.

THE learned District Consumer Forum after considering the case of the parties directed the appellant Lucknow Development Authority to refund the deposited amount to the complainant with interest @ 18% per annum with effect from 1.8.1992 on Rs. 4,50,000/- and with effect from 7.5.1993 on the sum of Rs. 109,000/- upto the date of possession alongwith payment of Rs. 300/- as cost. This payment was directed to be made within 60 days from the date of the judgment. Aggrieved against this order of the learned Forum, the appellant has come in the appeal challenging the correctness of the judgment and order of the learned Forum. We have heard the learned Counsels for the parties. Learned Counsel for the appellant has argued that on account of possession having been taken by the Army of the area in which houses were constructed, it is not possible to give the physical possession of the house to the complainant. A perusal of the grounds of the appeal will go to show that the dispute began in the last part of the year 1994 about the entire Nehru Enclave Area of the Gomti Nagar Scheme. The Army had in fact grabbed this area. A Regular Suit No. 39 of 1995, Lucknow development Authority v. Union of India & Ors., has been filed which is still pending in the Civil Court. It is even mentioned in the ground of appeal that the complainant has also not deposited the entire amount towards escalated cost of the house.

IN this case, we find that the appellant is not at fault in delivering possession of the property in dispute. The army has taken possession of the property and unless this dispute is resolved, possession of the house in question to the complainant cannot be delivered to the complainant.

RECENTLY Hon'ble Supreme Court in the case of Prashant Kumar v. Ghaziabad Development Authority I (2001) SLT 377=2000 CTJ 125, has held that if there is any delay on account of some unavoidable circumstances then it is not unfair trade practice. Thus keeping in view this decision of the Hon'ble Supreme Court, it can safely be said that Lucknow Development Authority is not at fault in delivery of possession of the property in question. Lucknow Development Authority has taken a decision to refund the deposited amount alongwith interest @ 9% per annum. Learned District Forum has directed for interest to be paid @ 18 % per annum which cannot be sustained in view of the case law cited above. Rate of interest, awarded by the learned Forum, is reduced to 9% per annum, as already indicated by the appellant-Lucknow Development Authority. The result is that the appeal is liable to be allowed partly. ORDER The appeal is partly allowed with modification to the extent that rate of interest awarded by the District Consumer Forum-I, Lucknow, is reduced to 9% per annum. With this modification, rest of the judgment and order of the learned Forum are confirmed. Let compliance be made within a period of two months. Let copies of the order be issued to the concerned parties as per norms. Appeal partly allowed. _______________