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Agra Development Authority Through Its Vice-Chairman, Uttar Pradesh v/s Dr. R.M. Malhotra & Another

    First Appeal No. 563 of 2013

    Decided On, 07 January 2022

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. C. VISWANATH
    By, PRESIDING MEMBER & THE HONOURABLE MR. JUSTICE RAM SURAT RAM MAURYA
    By, MEMBER

    For the Appellant: Sudhir Kulshreshtha, Advocate. For the Respondents: Mitlesh Kumar Pandey, Advocate.



Judgment Text

1. The present Appeal has been filed against the order dated 03.07.2013 passed by Uttar Pradesh State Consumer Dispute Redressal Commission, Lucknow (in short ‘the State Commission’) in Consumer Complaint No. 66 of 2012.

2. Along with the Appeal, IA/5715/2013, an application for condonation of delay of 3 days has also been filed by the Appellant. For the reasons stated in the application and in the interest of justice, IA/5715/2013 is allowed and delay condoned.

3. The case of the Complainants/Respondents is that the Opposite Party invited application for allotment of land in the year 2001 with a condition that the land booking shall be of minimum one acre. The Complainants applied for purchase of 3 acres of land by depositing an amount of Rs.3 lakhs, vide demand draft No.321817 dated 15.02.2001 with Rs.1000/- as registration charges. The Opposite Party, vide letter dated 06.07.2001, informed the Complainants that Plot No.EH-2 measuring 11842 sq. mtrs. and Plot No.EH-6 measuring 11448 sq. mtrs. were vacant and asked the Complainants to send their consent for allotment of the plot within 7 days. The Complainants, vide letter dated 27.07.2001, consented for allotment of Plot No.EH-2 measuring 11842 sq. mtrs. The Complainants enquired about allotment but no allotment was made by the Opposite Party. The Complainants sent letters dated 04.03.2002, 12.02.2003, 28.11.2003, 15.01.2004, 19.03.2005, 29.08.2006 and 20.11.2007 which were not responded by the Opposite Party. On 22.04.2008 the Complainants wrote a letter to the Housing Minister, Government of U.P., Lucknow. Housing Ministry of Government of U.P. replied that the information was being collected from Agra Development Authority and as soon as it is collected, the same will be intimated. MLA Sh. Uday Raj Yadav also raised this issue in U.P. assembly in response to which the Opposite Party replied that no land was vacant for allotment and that on 11.10.2006 the Development Authority had already refunded the deposited amount to the Complainants, alongwith interest of Rs.3,76,328/-. On 11.08.2008, the Complainants sought information under RTI, from the Opposite Party regarding payment of Rs.3,76,328/. The Complainants also sought information from Union Bank of India. The Opposite Party, vide letter dated 30.08.2008, supplied the details of the Cheque for Rs.3,76,328/- dated 10.10.2006. Union Bank of India, vide certificate dated 23.11.2007, informed the Complainants that “payment of the cheque has not been made from the branch till today”. On 04.02.2009, the Complainants again sent a letter to the Housing Minister U.P. regarding the false information furnished by the Opposite Party. The Complainants also sought information from the Opposite Party under RTI Act, vide letter dated 09.05.2012, about the status of the aforesaid plots EH-2 and EH-6. The Complainants were informed that the Plot No. EH-2 which was to be allotted to the Complainants had been sold @ Rs.950 per sq. mtr. to Smt. Basanti Devi and Chakhan Lal Garg Education Trust on 13.01.2003 and the sale deed had also been executed on 19.09.2003. Plot No. EH-6 has been divided into two parts, one part measuring 8147 sq. mtr. had been allotted to M/s Veda Charitable Trust on 31.12.2010 @ Rs.5233/- per sq. mtr., and the possession agreement had also been executed on 25.05.2011. Alleging deficiency in service on the part of the Opposite Party, the Complainants filed Consumer Complaint No.66 of 2012 with the State Commission, Uttar Pradesh with the following prayer:-

“(a) To direct the opposite party to allot a plot measuring 11,842 sq. mtr. or equivalent in Shastripuram Scheme, Agra or in any other scheme and hand over the possession to the complainants at the then rate of year 2001 i.e. @ Rs.740/- per Square Meters and further direct the opposite party not to charge any interest on the balance amount.

(b) To direct the opposite party to pay interest @ the rate of 18% per annum on the deposited amount of Rs.3,00,000/-from 15.02.2001 till the date of allotment to the complainants.

(c) To direct the opposite party to pay a compensation Rs.5,00,000/- for not allotting the plot till date.

(d) To direct to the opposite party to pay the costs of the case.

(d) Pass any order or relief in favour of the complainants which is deemed just, proper and necessary in the circumstance of the case.”

4. The Opposite Party resisted the Complaint by filing reply. It was stated that the consent given by the Complainants on 27.07.2001 was invalid as it did not bear the signature of the Complainant Dr. R. M. Malhotra nor did he give any separate consent. It was stated that as per the terms & conditions mentioned in the brochure, in case of non-allotment of the plot, the Complainants were entitled for refund of the amount with interest. The Opposite Party made payment of Rs.3,76,328/- to the Complainants, vide Cheque No.031949, dated 10.10.2006. The Opposite Party had not committed any deficiency in service.

5. The State Commission after hearing both the Parties and perusing the record, vide impugned order dated 03.07.2013, allowed the Complaint. The impugned order reads as follows: -

“The complaint of the complainant is admitted and opposite party Agra Development Authority is hereby directed to make the allotment of land of 11842 sq. mt. in the proper scheme on the rates of 2001 i.e. @ Rs.740/- (Seven Hundred and Forty) to the Complainant within one month and on making payment of amount mentioned in the allotment letter the physical possession of the and may be handed over to the Complainants within one month and after completion of all the formalities the opposite party may execute the sale deed in favour of the Complainants. No interest will be payable on the balance amount of the said land, but the amount of interest on the amount 3.00,000.00 (Three Lac only) deposited by the Complainant will be calculated @ 18% (eighteen) from the date of deposit and the same will be adjusted in the cost of land.

No other compensation will be payable to the Complainant s but they will be entitled to get Rs.5000/- towards complaint expenses from the opposite party.”

6. Aggrieved by the impugned order dated 03.07.2013, the Appellant/Opposite Party preferred the instant Appeal before this Commission with the following prayer: -

“(a) admit the appeal against the order dated 03.07.2013 passed by Hon’ble State Consumer Dispute Redressal Commission, U.P. Lucknow in Complaint No. 66/2012;

(b) set aside the order dated 03.07.2013 passed in Complaint Case no. 66/2012; and

(c) pass such order or further other orders which this Hon’ble Commission may deem fit and proper in the interest of justice.”

7. Heard the Learned Counsels for the Parties and carefully perused the record. Learned Counsel for the Appellant submitted that the cause of action arose in the year 2001 and the Complaint was filed in the 2012 after expiry of 11 years. The Complaint was, therefore, barred by limitation. The State Commission failed to appreciate the fact that the Complaint was not maintainable because the Complainants were never allotted a plot and they only applied for registration of Plot. It was also submitted that the plot in question is a commercial plot and the Complaint, therefore, was not maintainable in the Consumer Forum. Further, the Appellant/Development Authority gave an option to the Complainants to give the joint consent but they failed to do so. The Opposite Party refunded the amount of Rs.3.76 lakhs including the interest. It was also submitted that the State Commission had exceeded its jurisdiction by directing the Opposite Party to allot a plot at old rate of 11 years.

8. Learned Counsel for the Respondents/Complainants submitted that the Complainants have not received the amount of Rs.3.76 lakhs as alleged by the Opposite Party. The Opposite Party had sold the plot in question to a third party without intimation to the Complainants. It was submitted that due to deficiency in service on the part of the Opposite Party, the Complainants are waiting for allotment of the plot in question for the last 21 years. He further submitted that the impugned order is well reasoned order and the Opposite Party has filed the instant Appeal to evade the benefit of the impugned order.

9. First issue involved in this Appeal relates to the maintainability. In this regard, letter No.1060/D/E/A.E. (8)/2001 dated 06.07.2001 issued by the Opposite Party is relevant and the same reads as follows: -

“From

Assistant Engineer (Property)

Agra Development Authority,

Agra.

To,

Dr. R.M. Malhotra,

And Sh. Laxman Singh

84-M.G. Road, Agra.

Sir,

Under the Shastripuram Scheme, you had registered yourself for allotment of 1.5 acre land for Nursing Home. According to Layour Plan of “D”Block, an area of 11842 sq. mt. of plot No.EH-2 situated on 175 ft. road and an area of 11448 sq. mt. of corner plot No.EH-6 sitauted on 40 ft. road is available.

Therefore, you are requested to send your consent for purchasing of one plot out of the aforesaid plots within 7 days from the date of receipt of this letter so that further proceedings for allotment of land to you may be carried out.

Yours

Sd/-

Assistant Engineer (Property)”

10. A perusal of the aforesaid letter dated 06.07.2001 makes is clear that the Opposite Party had asked the Complainants to submit their consent for allotment of the plot. Opposite Party had not allotted any plot to the Complainants.

11. According to the Complainant they had given their consent vide letter dated 27.07.2021. A perusal of consent letter dated 27.07.2021 shows that it was signed by Laxman Singh alone and not by R.M. Malhotra. Apart from this letter there is no other consent letter signed by Dr. R.M. Malhotra sent to the Appellant within the period allowed vide letter dated 06.07.2001. The alleged authorization letter written by Dr. R.M. Malhotra authorizing Laxman Singh to act on his behalf was not sent to the Appellant. Therefore, in absence of valid consent on behalf of the Complainants, allotment of plot was not confirmed. Thereafter, the Complainant remained silent till 04.03.2002 and the present Consumer Complaint was filed on 25.06.2012 which is highly belated. The State Commission has failed to examine the relevant facts and has illegally held that

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the Complainants had given consent vide letter dated 27.07.2001. 12. It is, however, admitted that the Opposite Party has received an amount of Rs.3 lakhs, vide demand draft No.321817 dated 15.02.2001 with Rs.1000/- as registration charges. The Opposite Party also admitted that the Complainants were entitled for refund of Rs.3.76 lakhs. The Complainants stated that they had not received the amount of Rs.3.76 lakhs as alleged by the Opposite Party. Complainants further stated that they have sought information from Union Bank of India and the Bank, vide certificate dated 23.11.2007 informed the Complainants that “payment of the cheque has not been made from the branch till today.” The Opposite Party had not filed any evidence to prove that they had paid this amount to the Complainants. The Opposite Party cannot be permitted to retain the amount deposited by the Complainants. 13. In view of the above, the Appeal is partly allowed and the order of the State Commission is modified. The Opposite Party shall refund the amount deposited by the Complainants with interest @ 9% from the date of deposit till realization. There shall be no order as to costs.
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