JUSTICE SUDIP AHLUWALIA, MEMBER

2. The factual background, in brief, is that the Complainant applied for a plot on 06-07.04.1995 with the Petitioner Authority.  Subsequently, the Complainant was allotted a plot measuring 200 sq. meters in place of the previously allotted House No. F-211B in Vaishali, Ghaziabad, now designated as Plot No. 4/242B in Vaishali, Ghaziabad. The Petitioner Authority, through a letter dated 02.08.1995, directed the Complainant to deposit a transfer fee of Rs. 28,000/-. The Complainant made an initial deposit of Rs. 5,000/- on 01.07.1995. On 12.03.1996, the Respondent’s office issued a payment schedule via letter No. 938/Plot Anu./96. The Complainant, via letter dated 02.06.1997, informed the Petitioner Authority of his intention to make a one-time payment for the allotted plot and requested information regarding the total amount to be deposited. In the same letter, he also requested for a certified map of his plot. Despite multiple personal visits to the Petitioner Authority, the Complainant did not receive a one-time payment schedule, which prevented him from depositing the required amount for the plot. Subsequently, the Petitioner Authority cancelled the plot allotment via  letter dated 18.03.2002. The Complainant did not receive any show-cause notice prior to the cancellation of the allotment, which constitutes a deficiency in service. Aggrieved by the wrongful cancellation of the allotment and the deficiency in service on the part of the Petitioner Authority, the Complainant filed his complaint before the Ld. District Forum, Ghaziabad.

 3. The District Forum vide its Order dated 05.05.2008 partly allowed the Complaint and directed the Petitioner to pay the Complainant the deposited amount of Rs. 5,000/- with interest @ 9% p.a. from the date of deposit till the date of realization. The Complainant then filed Appeal before the Ld. State Commission, which partly allowed it and modified the Order of the District Forum. The relevant extracts of the impugned Order are set out as below -

“The complainant kept on waiting to receive a reply to his letter but he was never obliged. The respondent neither before this Commission, nor before the District Consumer Forum, submitted a copy of any reply letter that could have been sent to him. In other words, the Ghaziabad Development Authority committed a deficiency in service by not responding to the complainant's letter dated 02-06-1997, and in this way, the complainant was never informed about the price of the plot to be paid in one lump sum. If the aforesaid letter would have been replied to or some exercise undertaken on the complainant's file, maintained in the Ghaziabad Development Authority, the copies of the relevant orders and reply letters could have been filed for our perusal, but not only no such copies were adduced in evidence but also it was not disclosed that an effort was made or not to calculate the outstanding liability of the complainant. It may, therefore, be inferred that the Development Authority allowed the deficiency in service to continue for long, and the authorities kept quiet up to the year 2002 by neither asking the complainant to move forward nor taking any decision in the matter. 

The learned Counsel for the respondent made an effort to submit with reference to the affidavit filed in support of the written objections against the memorandum of appeal that show cause notice dated 18-05-1998 was issued to the complainant whereby he was warned either to pay the installments as scheduled in the letter dated 12-03-1996 and obtain possession of the house by 15-06-1998 or otherwise, in case of default, the allotment order in his name would be canceled. The appellant has denied that he ever received this letter. Besides his denial, there are two more aspects of the matter—the first of them being that vide this letter dated 18-05-1998, the Ghaziabad Development Authority did not consider it proper to reply to the complainant's letter dated 02-06-1997 on the margin of which the Officer on Special Duty had issued necessary instructions so as to respond to the complainant's request; and, secondly, the authorities still insisted on payment by way of installments and that too along with interest. In this context, it is noteworthy that by the time this letter would have been issued, the period of installments was over, and obviously, the Development Authority could ask the complainant to pay in one lump sum a particular amount including the interest and the penal interest, if any. But the Development Authority did not sincerely discharge its commitment of service and can thus be held guilty of deficiency on its part. 

There is yet one more implication of the alleged notice and it is that though this notice was allegedly sent in May 1998, it was not acted upon for long four years. The cancellation was issued on 18-03-2002, i.e., about four years after the alleged notice of May 1998 had been dispatched. As a matter of fact, the complainant, who was always ready and willing to pay the stipulated price in one lump sum, should have been given a fresh show cause notice before the cancellation order in 2002 was issued. Admittedly, no fresh notice either for demanding the up-to-date price of the plot was sent to the complainant in 2002, nor a fresh show cause notice issued, even though the complainant, who despite suffering from a heart problem, has always been ready and willing to pay the price in one lump sum. He wanted to avoid payment of interest, but it appears that the authorities of the Ghaziabad Development Authority did not cooperate with him. The fact that there was very little communication between the Authority and the complainant clearly shows deficiency on its part. The cancellation without a notice, much less a fresh notice in 2002, cannot be justified nor approved of. The sincere request of the complainant submitted by him vide his letter dated 02-06-1997, though seriously taken note of by the Officer on Special Duty, was never acceded to. In these circumstances, we are of the decisive opinion that the respondent Ghaziabad Development Authority committed a serious deficiency in service. The complainant was entitled to the main relief he has prayed for in his complaint.

In the result, this appeal is allowed, and the main relief of the complainant as pleaded by him in his complaint is granted. He would get possession of the plot after he pays the entire price of the plot allotted to him in accordance with the terms and conditions of the allotment. He has to meet his liability as regards payment of interest in accordance with the terms and conditions enumerated in the allotment letter. Since the plot is still lying vacant, there would be no impediment in reviving its allotment in the name of the complainant. The appellant shall deposit the entire outstanding sum with the District Consumer Forum within one month from the date a statement of accounts is submitted by the Ghaziabad Development Authority before the District Consumer Forum. In case the Ghaziabad Development Authority fails to submit a statement of accounts, the appellant shall calculate the price including interest in terms of the allotment letter and deposit the same. In case the deposit is made, the Ghaziabad Development Authority shall execute the sale deed within 30 days from the date of deposit, and delivery of possession shall follow the course. The impugned judgment is modified accordingly.”

 

4. Ld. Counsel for Petitioner/Opposite Party has argued that the Respondent had himself defaulted in paying the required instalments payments. Despite being issued a payment schedule on 12.03.1996, he failed to make payments towards the allotted plot and did not pay the transfer fee. The Hon’ble Apex Court in “Prashant Kumar Shahi v. Ghaziabad Development Authority, (2000) SCC 120” has held that the Authority is not obligated to deliver possession if the agreement amount is unpaid. Based on the terms and conditions outlined in the brochure, the Petitioner was justified in cancelling the allotment after providing proper notice and multiple opportunities to the Respondent; That the Petitioner should not be penalized for the Respondent's default in payment. The Respondent's claims of submitting an application dated 06.04.1996 for site map/plan details and a one-time lump sum payment request on 02.06.1997 appear concocted and lack supporting affidavits, suggesting they are afterthoughts; That the State Commission erred in holding that there was a deficiency on the part of the Petitioner for not acting on the request letter dated 02.06.1997. The Respondent was already a defaulter, and his inaction from 1997 to 2002 demonstrates a lack of interest in pursuing the allotment; That the plot initially allotted to the Respondent has been re-allotted to another party following the cancellation, leaving no available plot for the Respondent; That the Respondent's default in payment justifies the cancellation of the allotment, and there is no deficiency in service on the part of the Petitioner. Therefore, the appeal should be decided in favour of the Petitioner, and the Respondent's claims should be dismissed. 

5. Ld. Counsel for Respondent/Complainant has argued that the Petitioner Authority neither communicated the amount to be deposited nor provided the sanctioned site map/plan, and suddenly cancelled the allotment on 18.03.2002 without considering that the Respondent could not make the payment without this information; That the State Commission rightly held that the Respondent sought information on the lump sum payment to make the complete payment, as he preferred not to pay in instalments and incur interest. This request was endorsed by the Town Planner, yet the Petitioner took no action on the Respondent's letter dated 02.06.1997, constituting a gross deficiency in service; That the Petitioner Authority remained silent from 1996 to 2002 and then abruptly sent a cancellation notice. Importantly, no prior Show Cause Notice was issued to the Respondent, and no evidence has been provided to demonstrate that such a notice was sent and received; That the State Commission rightly noted the lack of communication between the Petitioner Authority and the Respondent, highlighting the deficiency in service, as the Respondent's legitimate request for a lump sum payment amount was ignored; That the Petitioner Authority's practice of charging interest at 21% per annum on delayed payments while refusing to inform the Respondent of the lump sum amount payable and withholding possession of the plot due to non-payment further underscores their deficient service.

6. This Commission has heard both the Ld. Counsel for Petitioner and Respondent, and perused the material available on record.

7. After having carefully perused the entire material on record including the correspondences exchanged between the parties, this Commission is of the view that there is merit in the contention of the Petitioner Authority that it was justified in cancelling the Complainant’s allotment as he had failed to pay the Conversion Charges towards the new plot/property allotted to him. This is so, because the letter dated 12.3.1996 intimating the total payment schedule to him by the Petitioner Authority (Annexure-P1) goes to show that the Conversion Charges amounting to Rs. 28,000/- had been shown as the very first item in the details under the nomenclature of “Transfer Fee”, payable by 30.3.1996.  The registration amount of Rs. 84,000/- was also required to be paid by the same date, after which the details of the subsequent 8 instalments @ Rs. 24,500/- each with the applicable interest thereupon was specified further in the aforesaid letter.  Now, as per the own case of the Complainant, he wrote to the Petitioner Authority only on 2.6.1997 in which it was stated that he was willing to pay the total amount towards the concerned property, in one lot, on account of which he prayed for calculating the amount as such payable by him. But, it needs to be remembered that as per the letter intimating the payment schedule dated 12.3.1996, the dates for payment of the original Conversion Charges/Transfer Fee as well as the registration amount had already lapsed more than one year and two months prior to his letter on 30.3.1996.  Thereafter, time for payment of the next 4 instalments falling due on 30.6.1996, 30.9.1996, 30.12.1996 and 30.3.1997 had also lapsed much before he submitted his letter expressing is willingness to pay the lumpsum amount. Prior to that, he had also submitted his letter dated 6.4.1996 in which he had requested for providing him a certified map of the Plot allotted to him, and he had mentioned in such letter that the payment schedule dated 12.3.1996 was received by him belatedly, without specifying the date on such letter was actually received, since his own letter was just one week after the date for payment of Transfer Fee and registration had lapsed on 30.3.1996.  It goes without saying that the Transfer Fee and Registration amounts were entirely different from rest of the consideration amount which had to be paid by way of instalments @ Rs. 24,500/- each alongwith the applicable additional interest specified in the letter of payment schedule dated 12.3.1996.  At best, he therefore could have offered to pay only the lumpsum consideration amount in order to avoid payment of any interest on the various instalments.  

8. But as is clear from the letter of the Petitioner Authority dated 12.3.1996, no interest whatsoever was payable on the Transfer Fee and Registration Amount which was a pre-cursor to the instalments to subsequently follow.  The failure of Complainant to pay even these amounts which were not subject to any interest liability whatsoever within the time specified, or atleast by 6.4.1996, which was only a week after the due date for such payments, and on which date he had admitted having received the Payment Schedule would appear to be a clear case of callousness, if not an actual attempt to avoid payment on those counts within the time stipulated.  In such circumstances, it cannot be said that there was no fault at all on his part.  He ought to have unconditionally paid the Conversion and Registration Charges within the scheduled time or immediately on receiving the Demand Letter, which admittedly was received by him before 6.4.1996, and consequently not even a week had passed before the date of payment of the Conversion Charges and Registration amount was to lapse.  After having made such payment, the Respondent/Complainant, if he was actually sincere and willing to pay the consideration price in lumpsum, should have promptly made such offer alongwith his letter dated 6.4.1996.  But he waited for more than one year and two months before making such offer on 2.6.1997 when undeniably he had already defaulted in paying no less than four instalments over and above the Transfer Fee and the Registration amount had also remained unpaid. It was also not even his case that he had in the meantime received the Certified map of the plot allotted to him, on which pretext he had apparently avoided making any payment alongwith his earlier letter dated 6.4.1996, and so his offer to pay the entire consideration amount lumpsum was clearly an after-thought, when in the normal course, his allotment stood to be cancelled.

9. For the aforesaid reasons, this Commission is of the view that the Ld. State Commission did not appreciate the dispute in the right context, and acted erroneously in passing the impugned Order in favour of the Respondent/Complainant.

10. The Revision Petition is therefore allowed, after setting aside the impugned Order.  The Complaint filed by the Respondent accordingly stands dismissed.  Parties to bear their own costs.

11. Pending application(s), if any, also stand disposed off as having been rendered infructuous.