National Consumer Disputes Redressal
Shanti Devi And Ors. vs Kanpur Development Authority on 15 May, 2007
Equivalent citations: III(2007)CPJ416(NC), AIR 2007 (NOC) 1945 (NCC) NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION — NEW DELHI, 2007 (6) ABR (NOC) 947 (NCC) NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION — NEW DELHI
ORDER
B.K. Taimni, Member
1. Petitioners were the complainants before the State Commission, where they had filed a complaint alleging deficiency in service on the part of the respondent, Kanpur Development Authority. The State Commission vide its order dated 16.4.2000 allowed the complaint in following terms:
1. The complainant shall make an application along with certified copy of this order within one month from today before the K.D.A. for allotment of the alternative plot which the K.D.A. shall allot within one month of receiving the application.
2. While allotting the plot, the K.D.A. will specify the total area of the plot. The area of the originally allotted plot of the complainant shall be deducted should the presently allotted plot be of a larger area.
3. Rs, 10,000 shall be adjusted towards the price payable by the complainant for the equivalent of the old area and present rate shall be applied for the excess area, if any, which shall also be paid by the complainant within one month of receiving the demand notice which shall be issued within another month of the issuance of the allotment letter. The complainant shall deposit the entire amount within another one month upon which the possession of the plot shall be handed over to the complainant by the opposite party in accordance with the procedure for it.
4. Having done so, the sale deed shall be executed within another one month.
2. Aggrieved by this order an appeal was filed before this Commission who after hearing the parties passed the order dated 1.3.2005. The operative part of this order reads as under:
We heard the learned Counsel for the appellant and perused the material on record. We have very carefully gone through the material on record and also the reliefs granted. The requisite relief have already been granted to the appellant by way of charging the then prevailing price way back in 1973 of a plot which he is going to get. It is only for excess area, if at all from the area allotted originally that the appellant has been asked to pay at prevailing market price. In catena of judgments passed by the Hon'ble Supreme Court as recently as February, 2005, it has been held that if the possession is given at the old price then a person shall not be entitled to any compensation on account of the fact that the cost of plot would have escalated in the meanwhile, which would have happened in this case as well. Hence we are not inclined to pay any compensation or other reliefs sought, except that the appellant shall be entitled to interest @12% along with other reliefs ranted by the State Commission on the deposited amount of Rs. 10,000 from the date of deposits till the time of allotment of the plot, as directed by the State Commission.
3. When this order was not being complied with an execution petition was filed before the State Commission, who after hearing the parties, passed the order, which reads as under:
By the original order dated 16.4.2004, it has been directed that if the complainant makes an application "along with certified copy of this order within one month, for allotment of alternative plot", K.D.A., shall allot within one month of receiving the application. The area of the originally allocated plot shall be deducted, should the newly allotted plot be of a larger area. It was further directed that Rs. 10,000 shall be adjusted towards the price payable by the complainant for the equivalent of the old area and present rate shall be applied for the excess area, if any. The complainant was required to deposit the entire alternative plot was to be handed over to the complainant by the opposite party in accordance with the procedure and sale deed was to be executed within another one month.
A dispute has been raised through this execution application that the said order dated 16.4.2004 has not been complied with. The opposite parties have filed an application along with affidavit saying that they have already complied with the directions. The said affidavit is sworn by Sri I.C. Maurya, Joint Secretary, K.D.A., Paras 3 to 8 of this affidavit are quoted below:
3. That the Competent Authority vide its order dated 27.10.2004 allotted a plot No. 155, Block W-2, Juhi II, Kanpur in favour of complainant in compliance of the order / judgment passed by this Hon'ble State Commission. The said allotment letter had been duly received by the complainant on 27.10.2004 itself as evident from the said allotment letter. A true copy of the allotment letter dated 27.10.2004 passed in compliance of the judgment is being filed herewith as Annexure No. A-l to this affidavit.
4. That the complainant preferred the First Appeal No. 178 of 2004 before Hon'ble National Commission, New Delhi against the judgment dated 16.4.2004 passed by this Hon'ble State Commission, without disclosing the alternate plot was allotted to him.
5. That since the judgment and order passed by this Hon'ble State Commission has been complied and communicated to the complainant and the relevant records were asked by the Lok Ayukta, U.P., the reply in the First Appeal No. 178 of 2004 could not be filed before Hon'ble National Commission, New Delhi. Although it was the responsibility of the complainant also to brief complete and correct facts before Hon'ble National Commission-but he failed to inform alternate allotment of plot No. 155, W-2, Juhi-II, Kanpur in his favour and Hon'ble National Commission has passed the judgment / order dated 1st March, 2005 in the First Appeal in ignorance of this relevant fact.
6. That after the judgment and order passed by Hon'ble National Commission in the First Appeal No. 178 of 2004 the Competent Authority has calculated the interest @ 12% on the deposit and accordingly the compliance of the judgment had been ensured after adjusting the same amount from balance amount payable by the complainant.
7. That it is pertinent to submit that the, complainant had deposited Rs. 10,000 as a reservation amount towards the earlier allotted plot No. 453 in Indira Nagar Scheme, Kanpur (measuring 297.23 sq. mtrs.) in the year 1972 and 1975 (in two instalments of Rs. 5,000 each.)
8. That in compliance of the judgment, the following calculations were made:
__________________________________________________________________
(a) Area of earlier allotted 297.23 sq.mtrs.
plot No. 453 (356 sq. yards)
(b) Alternate allotted plot 297.23 sq.mtrs.
No. 155, W-2, Juhi-II, (356 sq. yards)
Kanpur
(c) Old rate for earlier Rs. 60 per
allotted plot sq. mtr.
(d) Deposited Money Rs. 10,000/ -
(e) Area in respect of this Rs. 10,000 / 60
deposit =166.66 sq. mts.
Thus he had deposited
Rs. 10,000 for 166.66
sq. mts.
(f) Rest/excess of the area 297.23 - 166.66
= 130.57 sq. mts.
(g) Current rate Rs. 2,900 per sq.
mtr.
(h)Cost of rest of the area 130.57 x 2900 =
Rs. 3,78,653.00
__________________________________________________________________ It has been pleaded in para 12 of the affidavit that in pursuance of the order of Hon'ble N.C.D.R.C. 12% interest has been calculated and paid. As per the accounts, a sum of Rs. 3,41,853 alone has to be now paid by the complainant.
There is no reason to have a feeling that opposite parties have not complied with the direction contained in the aforesaid order. There is force in the argument of Sri Arvind Kumar that deposit of Rs. 10,000 as registration amount has already earned 12% interest amounting to more than Rs. 37,000.
Mr. M.H. Khan learned Counsel for complainant contended on 24.8.2004 that the interpretation put by K.D.A. is not correct and in para 3 of the application of the complainant, it is said that the order dated 21.4.2005 in these proceedings, may mean change in the order. Mr. Khan, however, did not press it today. Mr. Arvind Kumar contended full compliance of the order in the complaint.
This order was directed in Court on 31.8.2005. Before signing, the record of complaint case was called which revealed that original order dated 16.4.2004 was not available in the record. The Registrar has been asked to get it searched out and place it within 2 weeks, proceed departmentally if it is not found out, and, then get it lawfully reconstructed.
It may be repeated, nothing more than registration amount of Rs. 10,000 has been paid by the complainant, who is an Ex-Army-man. Hon'ble NCDRC has allowed interest on that amount and KDA has allowed Rs. 37,000 towards the same. The value of the alternate plot is Rs. 8 lacs today which the complainant is about to get for Rs. 3,78,663. It is, therefore, held that the complainant has to respond to the offer of KDA as quoted above.
Let this be listed for delivery of orders on 5.10.2005.
As soon as the amount is deposited, KDA will furnish details of stamps etc. as may be payable by the complainant so that registered deed is executed within one month of depositing the sum etc. The execution application stands inally disposed of in the aforesaid terms."
4. Aggrieved by this order, this revision petition has been filed before us. We heard the petitioner and learned Counsel for the respondent at considerable length. While it is the case of the petitioner, who appeared in person, that our order has not been complied with, on the other hand, it has been vehemently argued by the learned Counsel for the respondent that the orders of the State Commission as also of the National Commission have been fully complied with, as has been noticed by the State Commission in its order in the execution proceedings.
5. We have perused the material on record. Basic facts are not in dispute that the petitioner way back in 1972 had deposited Rs. 5,000 and another Rs. 5,000 in February 1975 against a scheme floated by the respondent Kanpur Development Authority. Admittedly, he had applied for an M.I.G. flat which as per brochure, had an area of 297 sq. mtrs. It is also admitted position that the plot allotted now in compliance with the order passed by this Commission and State Commission, has the same area. Admittedly this was a question of allotment of 'alternative plot' as per operative part para 1 of the order dated 16.4.2004 of the State Commission. As per settled law of this Commission, as also of the Hon'ble Supreme Court, alternative plot has to be allotted at the price at which the original plot was allotted. We have said so in clear terms in our order dated 1.3.2005 (underlined portion of our order reproduced earlier). There is no dispute that as per State Commission's order dated 16.4.2004 para 3, if there was any excess area than the applied for/originally allotted area, then the respondent was free to charge the prevailing market price. After a harmonious reading of the 'reliefs', granted by the State Commission as also by this Commission, we are clearly of the view that the State Commission has committed an error while passing the order in execution. According to us, the respondent Kanpur Development Authority shall have to allot a plot of 297 sq. mtrs. at the then prevailing price only. In case, there has been 'excess area' allotted now, then they were free to charge the prevailing price but only for the excess area. This is not the case here. In the affidavit filed before us as also the details given before the State Commission, the Kanpur Development Authority (KDA) has misconstrued the proposition, in the sense that they have worked out the area as 166.67 sq. mtrs., corresponding to the deposit of Rs. 10,000 by the petitioner. In our view, this is nothing but a wrong appreciation and understanding of the orders passed by the State Commission and this Commission by them, in letter and spirit. We have already clarified our view earlier, in view of which we are unable to sustain the order passed by the State Commission in execution proceedings which is partially modified to convey that the respondent is directed to charge the price at the rate at the time of earlier deposit/ allotment. It is not in dispute that plot No. 463 was allotted to the petitioner way back in 1973. The respondent shall charge the same price of the plot which was prevailing at the time of original allotment of the plot. The petitioner is also entitled to interest @12% on the deposited Rs. 10,000 as already ordered by us, from the date of respective deposit till the date of payment. The respondent is free to adjust this amount from the cost of the plot and if there is any excess then he will refund the amount to the petitioner/complainant and if it is 'less' than this amount, the petitioner shall pay this amount within a period of four weeks, after which the possession shall be given and sale deed shall be executed in favour of the petitioner by the respondent within six weeks thereafter.
6. This revision petition stands disposed of in above terms.