ORAL

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UTTAR PRADESH, LUCKNOW

APPEAL NO. 716 OF 2023

(Against the order dated 16-03-2023 in Complaint Case No. 176/2016 of the District Consumer Commission, Raibareilly)

Raebareli Development Authority….                           ….Appellant

VERSUS

Shoeb Khan, Son of Sri Shahenshah Ali….                 .…Respondent

BEFORE:

HON’BLE MR. JUSTICE ASHOK KUMAR, PRESIDENT

HON’BLE MR. RAJENDRA SINGH, MEMBER

For the Appellant           : Sri Lalit Kishor Pandey, Advocate

For the Respondent        : Sri Manish Kumar Gupta, Advocate

Dated : 04-08-2023

JUDGMENT

MR. RAJENDRA SINGH, MEMBER

This appeal has been preferred by opposite party of complaint case no. 176 of 2016; Shoeb Khan Vs Raibareilly Development Authority against the judgment and order dated 16-03-2023 passed by Learned District Consumer Commission, Raibareilly.

The brief facts of the appeal are that being satisfied with the terms and conditions of the authority, the respondent/complainant moved an application for the allotment of a plot in “Nav Abad Hasan Nadvi Colony, Raebareli’ thereafter plot no. A-80 has been allotted to him on 19-10-2006. It was in the knowledge of the respondent/complainant that the difference of final costing and

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estimated cost will have to be paid when the final costing will be completed by the authority.

The monthly instalment of the said plot was Rs. 7,920/-. The complainant failed to deposit monthly instalment in due course of time and he became chronic defaulter therefore his allotment was cancelled on 24-06-2013 and information sent to him on 27-06-2013. The complainant has stated that he deposited a sum of Rs. 49,000/- on 30-05-2013, Rs. 44,000/- on 28-06-2013, Rs. 24,000/- on 10-07-2013 and Rs. 95,548/- on 30-09-2013 total Rs. 2,12,548/- but in this regard, he did not file any deposit receipt before Learned District Consumer Commission.   

In this regard, it is submitted that the said amount has been deposited by him voluntarily and without any direction/demand by the authority. In respect to Government Notification No. 4099/20-11-1999, a letter dated 17-11-2014 was sent to the Respondent/ Complainant for ‘Punarjeevan’ (पुनर्जीवन)’ of the said Plot, but he did not follow the said Govt. Notification and preferred to file a complaint before Learned District Consumer Commission, Raebareli.

          The allotment of the plot was cancelled by the appellant and thereafter a letter on 17-11-2014 was sent to him for ‘Punarjeevan’ (पुनर्जीवन)’ of the said plot but he did not follow the same as such after given sufficient opportunity to him for revival, the appellant has allotted the said plot to another person Mohd. Nazim, Son of Mohd. Kasim Khan on 21-06-2016 and now the said plot no. A-80 cannot be reallotted to the respondent/complainant.

          The appellant/authority has filed his written statement but the Learned District Consumer Commission did not consider the case of the appellant and allowed the complaint in an arbitrary manner on the basis of assumption and presumption. The Learned District Consumer Commission also failed to consider the law settled by the appellant. The Learned District Consumer Commission overlooked the provision of Section-41 (3) of ‘The U.P. Urban Planning and Development Act, 1973’ which is being reproduced as under :-

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Section 41 (3) : The State Government may, at any time, either on its own motion or on application made to it in this behalf, call for the records of any case disposed of or order passed by the Authority or the Chairman for the purpose of satisfying itself as to the legality or propriety of any order passed or direction issued and may pass such order or issue such direction in relation thereto as it may think fit:

Provided that the State Government shall not pass an order prejudicial to any person without affording such person a reasonable opportunity of being heard.’           

          The impugned judgment is bad in the eyes of law. The Learned District Consumer Commission failed to appreciate that if the respondent/complaint was aggrieved from the order dated 24-06-2013 for cancellation of plot passed by the appellant/authority, he should have moved an application against the said order dated 24-06-2013 before the State Government. 

The Learned District Consumer Commission has directed the appellant/authority to allot the plot no. A-80 in favor of the respondent/complainant within 45 days from the date of the judgment without appreciating the written statement in which the appellant has specifically pleaded that after allotment of the said plot, the respondent/complainant did not deposit any amount towards the installment and due to which the appellant/authority had cancelled the allotment of plot vide its letter dated 24-06-2013 and after its cancellation, the said plot has been allotted to another person and now the said plot A-80 cannot be allotted in favour of the respondent.

The Learned District Consumer Commission has completely failed to appreciate that the respondent/complainant was chronic defaulter in depositing the installments regularly in the office of the appellant/authority and due to which the allotment of said plot no. A-80 allotted to him has been cancelled by the appellant vide its order dated 24-06-2013 and no proper action is taken by the respondent/

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complainant against the said order of cancellation of Plot No. A-80 situated in Nav Abad Abul Hasan Navi Colony, Raebareli.

In pursuance of Govt. Notification No. 4099/20-11-1999, a letter dated 17-11-2014 was issued to the respondent/complainant for ‘Punarjeevan’ (पुनर्जीवन)’ of the said Plot, but he overlooked the same and preferred to file a complaint before Learned District Consumer Commission, Raebareli which was not maintainable but the same was entertained by the Learned District Consumer Commission, as such the impugned judgment and order is liable to be set-aside.   

The Learned District Consumer Commission has exceeded the jurisdiction vested in it in passing the impugned judgment and order dated 16-03-2023. The cause of action was accrued to the respondent/complainant on 24-06-2013 when the allotment of the plot no. A-80 allotted to him has been cancelled by the appellant/authority and against which the respondent/complainant had filed the complaint on 21-11-2016, which was highly time-barred and no application was moved by him before Learned District Consumer Commission, Raebareli as such the same was not maintainable. 

The Learned District Consumer Commission has miserable failed to consider that there has neither been negligence nor deficiency in service on the part of the appellant/authority. The judgment passed by the Learned District Consumer Commission is against the facts, terms and conditions as well as law and has been passed in arbitrary manner, which is not speaking ne and is liable to be set aside.

Therefore it is most respectfully prayed that the Hon’ble Commission may kindly be pleased to allow the appeal and set aside the impugned judgment and order of the Learned District Consumer Commission.

We have heard Sri Lalit Kishor Pandey, learned counsel for the appellant and Sri Manish Kumar Gupta, learned counsel for the respondent.

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The complainant has filed the complaint against the appellant for not allotting him the Plot No. A-80, which was allotted to him on 19-10-2006 after depositing the required amount of Rs. 21,120 on 19-10-2006. The installment was being paid regularly from 2006 upto 2008. The details of which, are given below :- 

The complainant works outside and after returning in 2013, he immediately deposited Rs. 49,000/- on 30-05-2013, Rs. 44,000/- on 28-06-2013, Rs. 24,000/- on 10-07-2013 and Rs. 95,548/- on 30-09-2013, total amount deposited is Rs. 2,12,548/- so the total amount deposited by the complainant regarding Plot No. A-80 is Rs. 3,52,468/-.

The delivery of the possession of the said plot has not been given to the complainant, which shows deficiency in service and negligence on the part of appellant/authority. The complainant requested for the registration of the Plot since 2013, but the appellant/authority did not get it registered in the name of the complainant. The appellant/authority without any information cancelled the allotment of the said plot allotted in favour of complainant and inform the complainant vide letter dated 06-01-2015 that the allotment of his plot has been cancelled vide order of the Vice-Chairman dated 24-06-2013. While the complainant deposited Rs. 44,000/-, 24,000/- and Rs. 95,548/- with the authority after this date. 

The Learned District Consumer Commission after discussing all the facts, passed the following order :-

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“परिवादी इकबाल आलम की ओर से दाखिल परिवाद विपक्षी के विरूद्ध आंशिक रूप से स्‍वीकार किया जाता है और विपक्षी द्वारा प्रश्‍नगत् भूखण्‍ड संख्‍या ए-80  के निरस्‍त करने से सम्‍बन्धित आदेश दिनांकित 24-06-2013 को अपास्‍त किया जाता है और विपक्षी को आदेश दिया जाता है कि वह इस निर्णय की तिथि से 45 दिन के अन्‍दर प्रश्‍नगत् भूखण्‍ड संख्‍या ए-80 का आवंटन शासनादेश व प्रचलित दर के आधार पर परिवादी द्वारा प्रश्‍नगत् भूखण्‍ड के सम्‍बन्‍ध में पूर्व में सम्‍पूर्ण जमा धनराशि का समायोजन करने हेतु भूखण्‍ड संख्‍या ए-80 की रजिस्‍ट्री परिवादी के पक्ष में करते हुए उसका कब्‍जा परिवादी को प्रदान करें।”

          The appellant/authority has admitted that in pursuance of the Govt. Notification dated 20-11-1999, a letter dated 17-11-2014 was issued to the complainant for ‘Punarjeevan’ (पुनर्जीवन)’ of the said plot, but he did not pay attention to it and thereafter the order of the cancellation passed by the Vice Chairman dated 24-06-2013 came into force.

          Now here one question arises that when the allotment of the plot has already been cancelled on 24-06-2013, why did an offer of ‘Punarjeevan’ (पुनर्जीवन)’ was made to the complainant on 17-11-2014? It is also very important that after this cancellation complainant has deposited Rs. 44,000 on 28-06-2013, Rs. 24,000/- on 10-07-2013 and Rs. 95,548/- on 30-09-2013 had been deposited and only thereafter the proposal of ‘Punarjeevan’ (पुनर्जीवन)’ was given to the complainant. When the complainant has already deposited Rs. 3,52,468/- what was the need of cancellation and ‘Punarjeevan’ (पुनर्जीवन)’ ? When the money deposited by the complainant and appellant/authority accepted the money it means he

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rectified the cancellation of allotment of the said plot. So in such circumstances the judgment and order of the Learned District Consumer Commission dated 16-03-2023 is legal and needs no interference by this Court. The appellant/authority has acted malafide in this respect, so he is liable to pay special cost of Rs. 5,00,000/- (Rs. Five Lacs Only) to the Respondent.  

ORDER 

The appeal is dismissed with cost. The impugned judgment and order dated 16-03-2023 is hereby confirmed.

The appellant is directed to pay a special cost of Rs. 5,00,000/-  (Rs. Five Lacs Only) to the respondent within a period of 30 days from the date of the judgment otherwise he shall pay interest @ 12% from 01-01-2017 till the actual payment.

If any amount deposited by appellant shall be remitted to District Consumer Commission concerned alongwith interest accrued for disposal in accordance with law.

The Stenographer is requested to upload this order on the website of this Commission at the earliest.

   (JUSTICE ASHOK KUMAR)                       (RAJENDRA SINGH)                     

              PRESIDENT                                                      MEMBER                                                                                                                      

         Ashish

           Court No.1