DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, LUCKNOW

CASE No.1108 of 2009

       Sri Afroz Alam, aged about 28 yrs.,

       S/o Mohammad Jilani,

       R/o Daryabad, District Barabanki.

                                                                   ……Complainant

Versus

                 1. Lucknow Development Authority,

                    Through its secretary, Vipin Khand,

                    Gomti Nagar, Lucknow.

                2.  Vice Chairman,

                   Lucknow Development Authority,

                   Lucknow.

                                                                              .......Opp. Parties

Present:-

Sri Vijai Varma, President.

Smt. Anju Awasthy, Member.

Sri Rajarshi Shukla, Member.

JUDGMENT

This complaint has been filed by the Complainant against the OPs for directing the OPs to withdraw the order for cancellation of allotment, the orders for charging interest on delayed payment of instalments passed, the illegal cheque of refund for Rs.8,000.00, the order whereby this refund was issued, to bring about registration of the shop in the name of the Complainant within 90 days, not to allot the shop to any third party and not to dispossess the Complainant from the shop and for payment of Rs.1,00,000.00 on account of mental agony and anguish and cost of the complaint of Rs.10,000.00.

          The case in brief of the Complainant is that he is the allottee in possession of shop No.30 in pursuance of allotment order dated 25.01.2007 passed by LDA in his favour on hire

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purchase basis against an estimated cost of Rs.96,000.00 payable in graduated instalments. The Complainant had to incur expenses before the said allotment order was issued in his favour and the delivery of the allotted shop was given to him. The income from the shop in question is the only source of livelihood. The Complainant paid instalments on hire purchase towards the cost of the shop as Rs.10,000.00 on 20.11.2006, Rs.14,391.00 on 20.02.2007 and RS.10,000.00 on 29.07.2008. After the payment of the above instalments the Complainant discovered a grave invalidity and illegality in the allotment order. The allotment order on account of the shop clearly affirmed in its body that the shop was allotted against an estimated cost of Rs.96,000.00 on hire purchase basis payable into several graduated instalments of specific amounts whereas the grand total of all such instalments amounted to Rs.1,01,728.00, thus the total of all the accumulated instalments exceeded the estimated cost of the shop by Rs.5,720.00. The inconsistency and incongruity between the estimated cost and the grand total of all the instalments constitutes gross negligence and unfair trade practice on the part of the OPs which was brought to the notice of the officials of the OPs by means of written application and they promised to issue an amended scheme of hire purchase instalments at the earliest and advised the Complainant to wait for the same. The last instalment of Rs.10,000.00 on account of the said shop was paid by the Complainant on 29.07.2008 after a gap of about 18 months after the previous instalment paid on 20.07.2007. The receipt challan of Rs.10,000.00 dated 29.07.2008 proves beyond any shadow of doubt that no interest on account of delay of 18 months has been charged only; the bare amount of the instalment of Rs.10,000.00 dated 06.07.2008 has been accepted by the LDA without any objection and protest and even after the acceptance of this

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instalment no further notice of demand or objection was ever made by the OPs against the Complainant. It was the duty of the OPs to serve a show cause notice against the Complainant mentioning the rate of interest, the quantum of accumulated interest and the span of delay. The aforesaid instalment on account of hire purchase of Rs.10,000.00 paid on 29.07.2008 was delayed and belated by 18 months and still the learned Vice Chairman did not exercise his right to cancel the allotment which proves that the alleged rules never applied to the Complainant’s case. The LDA has sent a cheque of Rs.8,000.00 in favour of the Complainant accompanied with an undated letter. The LDA was bound in law to accompany the cheque with the order whereby it was issued and the refund was given and the provision of law under which it was passed. Immediately after receiving above cheque and undated letter the Complainant served a legal notice by speed post dated 01.10.2009. The LDA has even failed to answer or reply the notice which clearly proves that it is completely true and constitutes gross negligence and deficiency in service. The LDA was duty bound to issue show cause notices before the passing of the instalment default order, the cancellation of the allotment order and the issuance of the refund order at Rs.8,000.00 but none was given to the Complainant which proves the illegal working of the LDA. The Complainant is ever ready and willing to pay all just and lawful dues of the LDA in OTS within a reasonable notice. The above act of OPs constitutes gross negligence and deficiency in service on the part of the LDA which caused mental anguish and agony to the Complainant, hence this complaint.

          The OPs have filed the WS wherein it is mainly submitted that the Complainant was only allotted the shop No.28 in Kanchan Market, Chowk, Lucknow but was not handed over the physical possession of the shop at any point of

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time. The Complainant has not furnished any proof of his allegations regarding incurring of unbearable unofficial expenses for issuance of allotment order. If the Complainant is carrying on any business in the Shop No.28, he is doing so illegally and without any authority and is liable to be evicted from the said shop. The Complainant had failed to deposit the instalments on due dates as per schedule. The Complainant has utterly failed to show any invalidity or illegality in the allotment order. The alleged difference in estimated cost and grand total of all the instalments is due to inclusion of interest also on those instalments which is not a legal infirmity, negligence or unfair trade practice on the part of the answering OPs. No such invalidity etc. was ever brought to the notice of the answering OPs nor any assurance was given to him by anyone. The Complainant never approached any officer of the answering OPs with regards to redressal of any grievance prior to sending the legal notice dated 01.10.2009 or filing of present complaint case on 23.10.2009. The Complainant had deposited initially a sum of Rs.10,000.00. Thereafter he defaulted in payment of due instalments on due dates/in time which has resulted into cancellation of the allotment to the Complainant. The payments toward cost of the property allotted are filled and deposited by the allottees themselves. If the Complainant did not add to the amount of instalment, the payable penal interest due on the same, it amounts to default in payment by the allottee/Complainant which ultimately resulted in cancellation of the allotment made in his favour by the LDA. Due to default in payments the Complainant was informed about the final costing on 10.07.2008 but when no effort was made by the Complainant to make good the default in payment of instalments and interest thereon the information of the default was also published in the daily Hindi newspaper “Danik Jagran” on 30.05.2009. Thereafter the allotment was

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cancelled on 29.07.2009 and on 08.09.2009 a refund of registration amount was issued to the Complainant after deducting 20% fine from the registration amount as per rule and the refund was posted to the Complainant on 01.10.2009. No show cause notice or separate interest charging order are required to be issued by the answering OPs. The Complainant was given ample opportunity to make good the default in payment of fixed instalments on due dates and in time as per schedule of payment and only after public notice dated 30.05.2009 the allotment of the Complainant was cancelled by the competent authority as per rules on 29.07.2009 as such no one time settlement is possible. It is reiterated that all the formalities towards the cancellation of the allotment of the Shop No.30 of the Complainant were already completed and accordingly the refund by means of cheque dated 08.09.2009 was sent to the Complainant. Immediately after sending the legal notice dated 01.10.2009 the Complainant filed the present case on 23.10.2009 which is being replied by answering OP herewith. The complaint is devoid of any merit and is liable to be dismissed with costs.

          The Complainant has filed his affidavit and 7 annexures with the complaint. The OPs has filed the affidavit of Smt. Ambi Bisht, Under Secretary, LDA with 7 annexures and 1 annexure with the WS. The Complainant has also filed written arguments with 2 annexures.

          Heard Counsel for the parties and perused the entire record.

          Now, it is to be seen as to whether a shop No.30 was allotted to the Complainant in Kanchan Market, Chowk, Lucknow and whether the OPs rightly cancelled the allotment of the shop in question or not and whether the OPs have committed any unfair trade practice or deficiency in service or not?

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          In this case, the Complainant claims to be allottee and possession of shop No.30 in pursuance of the allotment order dated 25.01.2007 passed by the LDA in his favour on hire purchase basis against an estimated cost of Rs.96,000.00 payable in instalments. The Complainant has filed annexure No.1 with the complaint which is allegedly an allotment letter of property in question of the Complainant but this property allotment letter discloses the property No. to be 28 and not 30 for which this complaint case has been filed. From this allotment letter it cannot be said that the Complainant was allotted shop No.30. Interestingly the complaint appears to have been filed in respect of shop No.28 as is evident from the heading of the complaint but from the body of the complaint it transpires that the allotment was for shop No.30 so it is not clear from the complaint as to whether this complaint relates to shop No.28 or to shop No.30. However, if we take the number of shop No. as 30 a clerical mistake and it is in fact with regard to shop No.28, then from the aforesaid property allotment letter it appears that the shop No.28 was allotted to the Complainant vide allotment letter dated 25.01.2007. The Complainant had deposited Rs.10,000.00 on 20.11.2006 and as per the allotment letter he was to deposit instalments on different dates as detailed in the property allotment letter. The Complainant has filed the photocopy of the banker’s cheque for Rs.14,396.00 dated 20.02.2007 and it is the contention of the Complainant that he had deposited this amount with the OPs but it is not clear whether this amount was deposited in consequence of the allotment letter with regard to shop No.28 as the Complainant was allotted some other shops also and it is not clear that he deposited this amount of Rs.14,396.00 with regard to shop No.28. No evidence to this effect has been filed by the Complainant that this amount of Rs.14,396.00 was with regard to the allotment of shop No.28. The Complainant has

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deposited Rs.10,000.00 on 29.07.2008 as is evident from the photocopy of the challan which shows that the amount has been deposited for shop No.28 but this is all that the Complainant shows to have deposited the amounts with regard to the allotment of shop whereas he was to deposit Rs.96,000.00 as per the allotment letter dated 25.01.2007 but he has miserably failed to show that he deposited any amount other than the ones mentioned above with regard to the shop No.28. The justification given by the Complainant for not depositing the amount due is that, as the shop was estimated to cost Rs.96,000.00 whereas the grand total of all the instalments amounted to Rs.1,01,728.00 and therefore in exceeded Rs.5,720.00 over and above Rs.96,000.00 the cost of the shop, hence he did not deposit the instalments, but this is no justification for not depositing the instalments due. The stand of the OP is that when the Complainant did not deposit the amount due, despite the Complainant being informed about the final costing on 10.08.2007 then after publishing a notice in Danik Jagran on 30.05.2009 the allotment of the Complainant was cancelled and after deducting 20% from the registration amount a refund of Rs.8,000.00 was sent to the Complainant. The Complainant has miserably failed to justify the instalments not being deposited by him, therefore the OP has had the right to cancel the allotment after due notice to the Complainant as is evident from the notice given in the newspaper by the OPs. In the notice which is enclosed as annexure A-1 by the OPs with their WS, bears the name of Afroz Alam at S.No.20, 21 and 22 with regard to shop No.28, 29 and 30. From the notice it is clear that the Complainant was in arrears of the instalments due which he did not pay despite notice to him. When the Complainant did not deposit the required instalments due then the OPs did not have any option but to cancel the allotment of the shop in question and refund

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the amount to the Complainant, therefore there is no deficiency in service and unfair trade practice on the part of the OPs and the complaint deserves to be dismissed.

ORDER

          The complaint is dismissed.

          The parties to bear their own costs.

    (Rajarshi Shukla)          (Anju Awasthy)                (Vijai Varma)

          Member                       Member                      President    

Dated:     March, 2015