DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, LUCKNOW
CASE No.22 of 2006
Smt. Farzana,
W/o Late Mohd. Zabir,
R/o H.No.538Kh/243,
Kumharan Tola, Khadra, Lucknow.
……Complainant
Versus
- Lucknow Development Authority,
Gomti Nagar, Lucknow.
Through Secretary.
- Janak Nandini,
1B/639, Section 1,
Sitapur Road Scheme,
.......Opp. Parties
Present:-
Sri Vijai Varma, President.
Smt. Anju Awasthy, Member.
Sri Rajarshi Shukla, Member.
JUDGMENT
This complaint is filed by the Complainant against the OPs for directing the OPs to reallotment of the said house or another house in the same rate in place of allotted house and for payment of Rs.5,000.00 p.a. as compensation with 24% interest w.e.f. 1994.
The case in brief of the Complainant is that the husband of the Complainant late Mohd. Zabir had applied for house under the scheme Sitapur road Yojna under the control of LDA. Thereafter H.No.ES 1B/639 was allotted in favour of her husband in the year 1987 and letter was issued on 25.04.1987 by Sub Secretary, LDA. The husband of the Complainant had deposited some amount regarding the said house from time to time but on 06.06.1987 Complainant’s husband expired. Thereafter, the Complainant continuously has been depositing the balance amount regarding the said
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allotment letter of the aforesaid house. The OP No.1 has taken the amount regarding the said house continuously but the said allotment has not been ransferred in favour of the Complainant. After lapse of much time the Complainant moved several applications regarding the said allotment but the OP No.1 has not transferred the said house in favour of the Complainant. Then she came to know that the said house was again allotted in favour of another person. Then she has given another application for reallotment of said house on the same rate but till now OP No.1 has not considered the Complainant’s request. The Complainant has deposited approximately 70% amount regarding the said house and she is ready to deposit the rest amount for the said house. The Complainant made several applications to the OP No.1 but nothing has been done. The Complainant also sent a legal notice to the OP through his Counsel but no action has been taken on her application as well as legal notice till date. The Complainant is continuously depositing the amount regarding the instalments of the said house but the OP No.1 has not considered the matter of the Complainant till date which is clear negligence and deficiency in service, hence this complaint.
The OP No.1 has filed the WS wherein it is mainly submitted that the H.No.ES 1B/639 Sitapur Road Scheme was allotted through lottery in favour of Mohd. Zabir on 29.04.1985 and allotment letter was issued by the OP wherein the estimated cost of the house was Rs.22,000.00 only which was to be paid in 8 quarterly instalments of Rs.686.25 from 15.07.1985 to 15.04.1987 and thereafter a monthly instalment of Rs.135.65 was to be paid in 20 years w.e.f. 01.05.1987. The OP had sent a letter dated 25.04.1987 to Mohd. Zabir wherein he was asked to deposit advance rent of Rs.608.65 and to deposit charges for the lease rent etc. and the charges for execution of the agreement. From the photocopies of the
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receipts of the deposits in favour of Mohd. Zabir filed by Smt. Farzana it transpires that Mohd. Zabir deposited 8 quarterly instalments and lease rent etc. but the monthly instalments due w.e.f. 01.05.1987 to 1991 were not deposited. The allotment of the house has been cancelled on account of the instalments not being deposited in LDA and the house has been allotted in favour of Janak Nandini and she has also been given the possession after execution of the agreement. The balance amount of monthly instalments which were to be deposited by Mohd. Zabir some of such amount has been deposited after 06.09.1991 and 19.08.1991 after cancellation of the allotment orders as the allotment of the house was cancelled on 22.01.1991. No information about the death of Mohd. Zabir and his successors has been given to the OP and no information about changing the name was ever given. Smt. Farzana has given the last application in the year 1994 whereas this complaint has been filed in the year 2006, therefore it is time barred and deserves to be dismissed. Besides the Complainant is not the consumer of the OP and on this score itself the complaint deserves to be dismissed.
The Complainant has filed the replication wherein it is mainly submitted that the Complainant has deposited the balance amount vide receipt No.1507 dated 19.08.1993 for a sum of Rs.3,276.00. It has also been submitted that the cancellation of the allotment of the house in question was wrongly done by the OP. The Complainant has given applications for the allotment of the house after the death of her husband but only false assurances were given and amount was realized from her regarding the house in question.
The OP No.2 has filed the WS in the form of affidavit wherein it is mainly submitted that the house in question was allotted to the answering OP on 04.02.1992 and agreement regarding house was executed on 09.07.1993 and possession was given on 16.07.1993 to the OP as such no amount can be
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deposited or accepted after 04.02.1992 regarding house in question except from the OP. Once the house in question was allotted to the OP there is no question for reallotment and any application in this regard is not maintainable. The OP is residing in house in question since 16.07.1993 and more over two floors have also been constructed by huge expense and as such the same cannot be allotted to the Complainant. The complaint is not filed within time prescribed under Section 24A of Consumer Protection Act from the date of actual cause of action arising. The complaint is defective and prayer made cannot be granted and complaint is liable to be dismissed on the ground of limitation and on merit also.
The Complainant has filed his affidavit with 7 annexures. The OP No.1 has filed the affidavit of Sri D.S. Rathore with 1 paper. The OP No.2 has filed the affidavit of Janak Nandini with 5 annexures and 7 annexures with the application of impleadment.
Heard Counsel for the parties and perused the entire record.
Now, it is to be seen as to whether the allotment in favour of the Complainant’s husband of house in question was wrongly cancelled by the OP No.1 or not? It is also to be seen as to whether the Complainant is a consumer of the OP No.1 or not and it is also to be seen as to whether this case is time barred or not?
It is not disputed that the Complainant’s husband Mohd. Zabir was allotted a H.No.ES 1B/639 in Sitapur Road Scheme of the OP No.1. The Complainant has filed death certificate of her husband as annexure 3 and the application given in DM’s office for succession showing herself as wife and Km. Shabina as daughter and Mohd. Shakir as son of Late Mohd. Zabir. Annexure 4 has also been filed to show that after enquiry Farzana the Complainant was found to be the widow and Km. Shabina and Mohd. Shakir were found to be the children of the
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deceased. As the successor of deceased Mohd. Zabir the Complainant has the right to file the complaint case and therefore it cannot be said that she is not the consumer. She as the wife of the deceased had the authority to file the complaint case, therefore it is concluded that she is the consumer of the OP No.1 in the instant case to file this complaint.
Now, we take up the point that whether this complaint is time barred or not? In this regard, the OP No.1 has taken the stand that the Complainant has given the last letter in the year 1994 whereas she has filed this case in the year 2006 but this argument is not sustainable as the Complainant has not only been raising the issue of house being allotted to her but OP has also not refunded the amount to her, therefore the cause of action remained with the Complainant and therefore it cannot be said that this case is time barred.
Now, we come to the main point that the allotment in favour of the Complainant’s husband of house in question was wrongly cancelled by the OP No.1 or not? In this regard, the stand of OP No.1 is that the Complainant did not deposit the monthly instalment due and therefore the allotment of the house in question was cancelled on 22.01.1991. So far as monthly instalments not being deposited by the Complainant’s husband is concerned it is quite obvious that as he had died, therefore there could be default in payment of instalment, therefore there is genuine justification for the Complainant not being able to deposit some of the instalments due but it is noticeable that the OP No.1 even after cancellation of the allotment have been receiving the money as is evident from the receipts of deposits made in the year 1991 and in the year 1993. If at all there was cancellation of the allotment of Mohd. Zabir then why the OP No.1 accepted the amount with regard to the house in question in the year 1991 and in the year 1993. It is noticeable that the Complainant has been making representations as is evident from the copies of the
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applications moved by the Complainant with regard to the allotment of the house in her name which was in the name of her deceased husband but to no avail. Besides there is no reliable proof of the cancellation of the allotment of Mohd. Zabir by the OP No.1 and its information to him. There are the receipts filed by the Complainant which show that she has been depositing the amount even after the cancellation of the allotment and also the deposit of the amount even after the house in question was allotted and the agreement executed in favour of the Janak Nandini as is evident from the receipt dated 06.09.1991 and 19.08.1993 whereas hire purchase of agreement and the possession of the house in favour of OP No.2 was done on 16.07.1993. Considering all the facts and circumstances of the case, it is abundantly clear that the OP No.1 has committed serious deficiency in service in cancelling the allotment of the Complainant’s husband, therefore the Complainant is entitled to get a house of the same area on the same cost with the conditions of the original allotment in favour of Mohd. Zabir in an area under the LDA. If they are unable to do so then the Complainant is entitled to get the entire amount deposited by her with interest. As the Complainant has also been harassed in this case, hence she is also entitled to compensation as well as cost of the litigation.
So far as OP No.2 is concerned there does not appear t be any negligence or deficiency in service on her part, therefore this case so far as OP No.2 is concerned is not sustainable.
ORDER
The complaint is partly allowed. The OP No.1 is directed to provide a house of the same area on the same cost with the conditions of the original allotment, in favour of the Complainant anywhere in an area under the LDA. If they are unable to do so then the OP No.1 will pay Rs.17,776.00 (Rupees Seventeen Thousand Seven Hundred Seventy Six
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Only) with 18% interest from the last date of deposit 19.08.1993 till the final payment is made to the Complainant.
The OP No.1 is also directed to pay Rs.20,000.00 (Rupees Twenty Thousand Only) as compensation and Rs.4,000.00 (Rupees Four Thousand Only) as cost of the litigation to the Complainant.
The compliance of the order is to be made within a month.
(Rajarshi Shukla) (Anju Awasthy) (Vijai Varma)
Member Member President
Dated: 30 November, 2015
