590 (NC) CONSUMER PROTECTION JUDGMENTS (Sep.

) 2024

restitutionary and that interest @ 9% would be fair pay to the Complainant litigation
and just. Further in DLF Homes Panchkula Limited costs of Rs.50,000.
v. D. S. Dhanda etc., II (2019) CPJ 117 (SC)=IV (2019) 15. Both Appeals No.1441 of 2017 and 1581
SLT 675=Civil Appeal No.4910-4941 of 2019, of 2017 stand disposed of in the above terms.
decided on 10.5.2019, the Apex Court also laid
down that awarding of multiple compensation for 16. Pending applications, if any, also stand
a single act of deficiency is not justifiable. This disposed of.
proposition of law has been reiterated in a catena Appeals disposed of.
of judgments of the Hon’ble Supreme Court and
this Commission and is well settled.
III (2024) CPJ 590 (NC)
13. The contention of M/s Vatika Limited is
NATIONAL CONSUMER DISPUTES
that under the Jaipur Development Authority
REDRESSAL COMMISSION, NEW DELHI
Regulations, 2000 no Certificate of Occupation
was required before offering possession. Mr. Subhash Chandra, Presiding Member & Dr.
Irrespective of this fact, the Appellant in order to Sadhna Shanker, Member
convey clear title would require a Certificate from VICE CHAIRMAN, LUCKNOW
the concerned authority with regard to completion DEVELOPMENT AUTHORITY & 2 ORS.
of execution of the project as per the sanctioned —Appellants
plan. Even such a document has not been brought
on record. Admittedly, there has been delay in the versus
offer of possession which, as per the Agreement ALOK SRIVASTAVA —Respondent(s)
was to be done in 3 years i.e. by 7.7.2010, possession First Appeal Nos. 618 & 654 of 2021 against the Order
was offered on 9.11.2011 but without the necessary dated 28.12.2020 & 19.7.2021 in Complaint Nos. 165/
documentation as discussed above. 2000 & 5/2021 of Uttar Pradesh State Consumer
Disputes Redressal Commission—Decided on 2.8.2024.
14. In view of the foregoing discussion and
the facts and circumstances of the case, we are not Consumer Protection Act, 1986 —
inclined to accept the contentin of the Appellant Sections 2(1)(g), 2(1)(r), 14(1)(d), 21(a)(ii) —
M/s VAtika Limited. On the other hand, there is Housing — Allotment of house — Failed to
merit in the contentions of the Appellant in First deliver constructed house — Deficiency in
Appeal No.1581 of 2017. In light of the foregoing, service — Unfair trade practice —
the impugned order of the State Commission is Respondent was allotted a MIG Duplex
modified with the following directions: House in the scheme devised and
implemented in Viram Khand-5, Phase I,
(i) It is directed that the Appellant
Gomti Nagar, Lucknow by appellant
Vatika Limited shall pay to the
Development Authority — MIG house was
complainant booking amount of
booked in 1990 and the full payment as
Rs.5,71,245 alongwith interest @
demanded by the appellant was paid by
9% per annum from the
respondent in 1992 — Plot was handed over
respective dates of deposits till
with an incomplete construction that has no
the date of payment and also pay
structural value — Respondent deposited Rs
to the OP No.2 within one month
3,76,800 towards construction — Even though
the housing loan amount of
the appellant states that it refunded the
Rs.30,46,643 which was
amount in 2007 — Refund was not accepted
sanctioned by HDFC Limited to
by the respondent who sought the handing
the Complainant and which was
over of the Duplex house, or, in lieu, an
disbursed to the Vatika Limited.
alternate house or plot of similar size and
(ii) Appellant Vatika Limited shall value — Directions issued that Appellant
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Vol. III LUCKNOW DEVELOPMENT AUTHORITY & 2 ORS. v. ALOK SRIVASTAVA (NC) 591

shall refund the amount of Rs 3,76,800 with service on the part of the appellant and therefore,
interest @ 7.5%p.a. with effect from the directing payment of Rs.6,82,500 with 10% interest
respective dates of deposit within 8 weeks from the date of filing till realisation as
failing which with interest @ 10% p.a. till compensation for construction, Rs.10 lakhs for
realization — Appellant shall pay the harassment and mental agony within 3 months or
respondent litigation cost of Rs.1,00,000. with 10% interest till payment and litigation cost
[Paras 14, 15, 16] of Rs.10,000.
Result : Appeal partly allowed. 2. This order will also dispose of FA no. 654
Cases referred: of 2021 arising from the order of the State
1. Ghaziabad Development Authority v. Balbir
Commission in RA no. 5 of 2021 by which the RA
Singh, II (2004) CPJ 12 (SC)=III (2004) SLT 161. had been allowed with regard to return of the
(Referred) [Paras 8, 13] deposited money through payment by cheque. For
2. Haryana Urban Development Authority v. Darsh the sake of convenience FA no. 618 of 2021 is taken
Kumar, III (2004) CPJ 34 (SC)=V (2004) SLT 297. as the lead case.
(Relied) [Para 10]
3. In brief, the facts of the case are that the
3. Meerut Development Authority v. Mukesh Kumar appellant, which is a Development Authority
Gupta, IV (2012) CPJ 12 (SC). (Relied) [Para 13] engaged in the development of housing projects
4. Fortune Infrastructure & Anr. v. Trevor D’Lima & on behalf of the Government of UP had, in a scheme
Ors., II (2018) CPJ 1 (SC)=III (2018) SLT 556. announced by it in 1990, allotted an MIG Duplex
(Relied) [Para 13]
House no. 5/1184, Viram Khand-5, Gomti Nagar
5. Kolkata West International City Pvt. Ltd. v. Scheme, Phase I, Lucknow to the respondent vide
Devasis Rudra, II (2019) CPJ 29 (SC)=III (2019)
allotment letter dated 20.9.1991 after receiving
SLT 631. (Relied) [Para 13]
Rs.20,000 on 8.10.1990 towards registration and
6. Pioneer Urban Land and Infrastructure Ltd. v. another amount of Rs.20,000 on 27.4.1991 towards
Govindan Raghavan, II (2019) CPJ 34 (SC)=III
(2019) SLT 435. (Relied) [Para 13]
allotment as per demand letter dated 4.2.1991. The
consideration was Rs.2,55,000 to be paid in
7. Experion Developers Pvt. Ltd. v. Sushma Ashok
instalments. On 3.12.1992, the appellant conveyed
Shiroor, II (2022) CPJ 22 (SC)=III (2022) SLT 492.
(Relied) [Para 13] by letter that the project was near completion and
the final cost was conveyed as Rs.3,76,800. An
8. Wg. Cdr. Arifur Rahman Khan & Ors. v. DLF
Southern Homes Pvt. Ltd. & Ors., IV (2020) CPJ 10
amount of Rs.81,800 was accordingly paid by the
(SC)=VI (2020) SLT 50. (Relied) [Para 13] respondent to the appellant over and above the
cost of Rs.2,55,000. However, the said house was
9. DLF Homes Panchkula Pvt. Ltd. v. D.S. Dhanda,
II (2019) CPJ 117 (SC)=IV (2019) SLT 675. (Relied) not constructed and handed over on purported
[Para 17] grounds of negligence by the contractor and instead
Counsel for the parties: the appellant sought to refund the amount of Rs
2,77,564 by cheque which was refused by the
For the Appellants: Mr. Abhishek Chaudhary, Advocate.
respondent.
For the Respondent: Mr. Anant Prakash, Advocate.
5. Vide complaint no. 165 of 2000 preferred
ORDER before the State Commission, the respondent
Mr. Subhash Chandra, Presiding prayed for possession or alternate MIG house
Member—This appeal assails the order dated along with interest @ 24% on Rs.3,76,800 paid by
28.12.2020 in Consumer Case no. 165 of 2000 of the it to the appellant with effect from 6.1.1995 till the
Uttar Pradesh State Consumer Disputes Redressal date of handing over the house. The prayer was
Commission, Lucknow (in short, ‘the State subsequently amended to possession or payment
Commission’) holding that there are reasonable of Rs. 7 lakhs for construction with interest @ 24%
and sufficient grounds to establish deficiency in per annum and Rs. 10 lakhs as compensation and

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592 (NC) CONSUMER PROTECTION JUDGMENTS (Sep.) 2024

Rs.3 lakhs for harassment and mental agony. II (2004) CPJ 12 (SC)=III (2004) SLT 161=(2004) 5
Thereafter, following the amendment to the SCC 65, Appeal (Civil) no. 7173 of 2002 decided on
Consumer Protection Act in 2002 the claim was 17.3.2004. It was contended that the cost of
enhanced to Rs. 56 lakhs for construction, Rs.3,76,800 as on 6.1.1995 deposited by the
compensation to Rs.20 lakhs and compensation respondent for the land measuring 112.50 sq m
for harassment, mental agony to Rs.9 lakhs. worked out to Rs 650 per sq m. or Rs.73,125. After
6. The State Commission, vide order dated adding other costs of development, the cost worked
20.6.2015, directed that the matter be heard by the out to RS 94,290. Hence the refund of Rs 2,77,564
District Forum in view of pecuniary jurisdiction. was a fair value since the cost of land with charges
This order was challenged in First Appeal No. for free hold fee, water and sewer charges was Rs
595/2015 before the National Commission which 3,000 per sq m. It was admitted that a letter dated
was disposed by order dated 16.2.2016. The matter 3.12.1993 was issued by it to the respondent stating
then travelled to the Hon’ble Supreme Court that it was about to complete construction in
through Civil Appeal (S) no. 749 of 2020, which support of its earnest to hand over the house as per
remanded the matter to the State Commission. The schedule. It was averred that the respondent had
State Commission’s order in CC No. 165 of 2020 amended his complaint which was rightly
dated 28.12.2020 is assailed before us by the disallowed as the quantum of relief sought had
appellant (Lucknow Development Authority). been exorbitantly enhanced without basis. It was
therefore prayed that the appeal be allowed and
7. We have heard the learned Counsel for the the impugned order dated 28.12.2020 be set aside
parties and given thoughtful consideration to the with any other order(s) deemed appropriate.
material on the record.
9. Per contra, the respondent contended that
8. The appellant admitted that it had allotted as admitted by the appellant, construction of the
Duplex House no. 5/1184, Viram Khand-5, Phase Duplex House No. 5/1184, Viram Khand-5, Gomti
I, Gomti Nagar to the respondent and received Rs Nagar, Lucknow allotted to him had not been
3,76,800 towards consideration, including the completed by the appellant despite payments of
escalation in construction cost intimated the full sale consideration and that as per present
subsequently. Its case is that the project could not ground position the incomplete building had been
be completed due to the negligence of the contractor rendered entirely un-buildable due to passage of
and hence it offered a refund of Rs 2,77,564 after time. The appellant did not hand over the
deducting costs incurred by it. As the cheque was possession of the Duplex House by January 1995
not accepted by the respondent, the amount was despite regular follow up and despite assurances
credited to his bank account. In view of negligence of possession, and representations by the
ascribed to the contractor, liability towards respondent dated 13.5.1995, 11.7.1995 and
deficiency in service was denied. It has contended 1.9.1995. Respondent contends that he sent a notice
that the State Commission had erred in burdening to the appellant on 14.9.1998 and was again
the appellant to bear the cost of construction and assured of early completion of construction. The
to pay damages to the respondent and had appellant while admitting that the expenditure
exceeded the relief asked for by the respondent incurred on the civil construction was Rs 8990,
regarding compensation for monetary loss, mental had also admitted that the construction could not
agony and harassment as Rs 10 Lakhs had been be completed due to negligence of the contractor
awarded against Rs 9 Lakhs asked for. It is also who had abandoned the project and sought to
argued that the State Commission erred in transfer liability of deficiency to the contractor
awarding Rs 6,82,500 with interest @ 10% as the which was not justifiable. The respondent
estimated cost in 2000 as the cost was without thereafter prepared an estimate based on the PWD
reasonable basis. Reliance was placed on Schedule of Rates (SR), 1997 and estimated the
Ghaziabad Development Authority v. Balbir Singh, construction cost at Rs 6,82,500 which the

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Vol. III LUCKNOW DEVELOPMENT AUTHORITY & 2 ORS. v. ALOK SRIVASTAVA (NC) 593

appellant contested as the cost of construction per specifications specified. It is not denied that
estimated by it in 1993 was Rs 3,86,800. the respondent was allotted a MIG Duplex House
10. The respondent contended that the State No. 5/1184 in the scheme and the consideration
Commission erred in holding that the appellant determined by the appellant was received by the
had refunded Rs 2,77,564 in 2007 which was 12 appellant. It is not in dispute that the appellant
years after the appellant was required to hand over received a sum of Rs.2,55,000 from the appellant.
possession and that it was not possible to construct It is not denied that the cost of the house had been
a house in 2007 for that sum of money. The revised to Rs 3,76,800 in 1993 and the same was
appellant’s case is that the State Commission had intimated vide letter dated 3.12.1993 and that the
rightly upheld the appellant’s reasoning that it escalated consideration of Rs. 81,800 also received.
was not responsible for the contractor’s fault. Having received the consideration and having
Respondent contends that cost of construction in allotted a house, the cancellation of the allotment
2007 had greatly escalated due to exponential rise without either accommodating the respondent in
in the cost of both material and labour. It was any other scheme or adequately compensating
contended that the State Commission awarded him on the grounds of admitted deficiency in
damages considering the fact that the damages service on the part of its contractor, is therefore,
sought of Rs 9 lakhs was in 2000 whereas the order both deficiency in service as well as unfair trade
came to be passed in 2020. The compensation practice.
sought was justified by the respondent on the 12. In Darsh Kumar (supra) the Hon’ble
grounds that the appellant failed to respond to his Supreme Court held that public authorities are
representation in 2000 seeking details of liable for deficiency in service. The appellant cannot
construction and keeping in view the servicing of escape its liability on the specious argument that
the loan and rent paid by him in the intervening its contractor was liable. It was required to complete
period. The estimate prepared by him was justified the project through alternative options, including
on the ground that it was prepared by a PWD the engaging of a new contractor at the risk and
engineer based upon the PWD’s SR for the year cost of the defaulting contractor. It has not brought
1997, especially since the appellant had failed to on record any evidence to indicate steps taken by
provide any evidence of value or cost. As the it to rectify the situation, especially since it had
appellant was required to provide both land and addressed the respondent that the construction
the house, the option of seeking a refund was not was proceeding apace and was likely to be
available to the respondent. Reliance was placed completed early. This letter is admitted by the
on the judgment of the Hon’ble Supreme Court in appellant.
Haryana Urban Development Authority v. Darsh 13. The Hon’ble Supreme Court, in Meerut
Kumar, III (2004) CPJ 34 (SC)=V (2004) SLT Development Authority v. Mukesh Kumar Gupta,
297=(2005) 9 SCC 449 wherein it was held that IV (2012) CPJ 12 (SC) decided on 9.5.2012 laid
non-profit statutory authorities are also covered down that “failure to deliver possession of the
under the Consumer Protection Act and are liable plot, constitutes recurrent/continuing cause of
for deficiency in service. action”. It has also been laid down by the Hon’ble
11. From the record, it is evident that as per Supreme Court in a catena of judgments, notably
the scheme devised and implemented in Viram in Fortune Infrastructure & Anr. v. Trevor D’Lima
Khand-5, Phase I, Gomti Nagar, Lucknow by the & Ors., II (2018) CPJ 1 (SC)=III (2018) SLT
appellant Development Authority, three types of 556=(2018) 5 SCC 442 and Kolkata West
houses were proposed to be constructed on plots International City Pvt. Ltd. v. Devasis Rudra, II
developed by it and were offered to applicants of (2019) CPJ 29 (SC)=III (2019) SLT 631=(2020) 18
various categories. Payment schedules were SCC 613 that an allottee/consumer cannot be
prescribed and the appellant undertook to hand expected to wait indefinitely for a plot or flat. In
over the same after completion of construction as Pioneer Urban Land and Infrastructure Ltd. v.
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594 (NC) CONSUMER PROTECTION JUDGMENTS (Sep.) 2024

Govindan Raghavan, in CA No. 12238 of 2018 contractor who was engaged by the appellant. As
decided 2.4.2019, II (2019) CPJ 34 (SC)=III (2019) a public authority it was incumbent upon the
SLT 435=(2019) 5 SCC 725 the Apex Court held appellant to ensure execution of its commitment to
that an allottee/consumer has the right to terminate the respondent for which a consideration had
an agreement in case the builder does not hand been accepted. It was open to it to execute the
over possession after a reasonable period of time. project at the risk and cost of the contractor or by
In its judgment in Ghaziabad Development Authority any other means. Mere refund after deductions
v. Balbir Singh (supra), the Hon’ble Apex Court has after lapse of nearly 12 years and 10 months has
held that compensation has to be decided on a been rightly refused by the respondent who has
case-to-case basis and in Experion Developers Pvt. waited for the house to be handed over.
Ltd. v. Sushma Ashok Shiroor, II (2022) CPJ 22 15. During oral submissions it was stated by
(SC)=III (2022) SLT 492=C.A. No. 6044 of 2019 the parties that possession of the plot of land was
decided on 7.4.2022, held that compensation by handed over to the respondent in May 2023.
way of interest should be both compensatory and Considering the fact that the MIG house was
restitutionary. In case of handing over of booked in 1990 and the full payment as demanded
possession of a plot or flat, the Apex Court laid by the appellant was paid by the respondent in
down Wg. Cdr. Arifur Rahman Khan & Ors. v. DLF 1992, the handing over of the plot with an
Southern Homes Pvt. Ltd. & Ors., IV (2020) CPJ 10 incomplete construction that has no structural
(SC)=VI (2020) SLT 50=Civil Appeal No. 6239 of value, the only issue that remains is the quantum
2019 decided on 24.8.2020, (2020) 16 SCC 512 that of compensation.
where an allottee receives a flat or plot, although
delayed, he would also benefit from the 16. The State Commission has considered
appreciation in its valuation and therefore, the cost of construction, based upon the Schedule
compensation for delayed possession @ 6% is of Rates of the PWD for the year 1997 as a valid and
equitable. reasonable basis. However, this valuation, which
may be reasonable, is not based on any estimate by
14. In view of the foregoing discussions, it is either a Court Commissioner or any expert authority
apparent that the appellant is liable for deficiency appointed by the State Commissioner. The same
in service and unfair trade practice in arbitrarily cannot, therefore, be considered. The undisputed
refunding the amount received by it towards the amount of deposit by the respondent towards
house allotted by it to the respondent. It is notable construction by the respondent is Rs 3,76,800. It
that the cancellation was done without even a would be fair to take this as the basis for calculating
letter setting out the reasons and/or steps taken by the quantum of compensation, even though the
it to suitably rectify the situation. There was a appellant states that it refunded the amount in
complete abdication of its responsibility and lack 2007. The refund was not accepted by the
of transparency in keeping the respondent respondent who sought the handing over of the
informed of the reasons for the same. There was an Duplex house, or, in lieu, an alternate house or plot
arbitrariness in the manner of refund after of similar size and value.
deducting some developmental costs which were
charged to the respondent even while seeking to 17. The Hon’ble Supreme Court has held, in
refund the amount received. It is noteworthy that DLF Homes Panchkula Pvt. Ltd. v. D S Dhanda II
statutory authorities which works on a non-profit (2019) CPJ 117 (SC)=IV (2019) SLT 675=(2020) 16
basis are not exempt from liabilities under the SCC 318, that multiple compensations for a
Consumer Protection Act and therefore the singular act of default is not justified. The award
appellant’s appeal to be exempted from any liability of compensation of Rs 10 Lakhs for monetary loss,
qua the respondent before us does not merit mental agony and harassment is therefore set
consideration in view of discussion above. The aside. However, as compensation by way of interest
respondent had no privity of contract with the covers compensation, it is necessary to consider a

156
Vol. III VINEET KUMAR DIXIT v. SENIOR SUPERINTENDENT OF POST OFFICES (NC) 595

higher rate of interest in view of the chequered III (2024) CPJ 595 (NC)
history of this case and in view of the fact that the NATIONAL CONSUMER DISPUTES
respondent has agitated this matter before several REDRESSAL COMMISSION, NEW DELHI
fora over several years in pursuit of justice. A rate
of interest of 7.5% from the date of deposit is AVM J. Rajendra, AVSM VSM (Retd.), Presiding
considered appropriate. The cost of litigation of Member
Rs.10,000 awarded by the State Commission is VINEET KUMAR DIXIT —Petitioner
also enhanced to Rs.1,00,000.
versus
18. For the aforesaid reasons and in the facts
SENIOR SUPERINTENDENT OF POST
and circumstances of the case the respondent is
OFFICES & ANR. —Respondents
liable for deficiency in service and unfair trade
practice, the appeal is partly allowed and is And
disposed of with the following directions: MANOJ KUMAR SHARMA —Petitioner
(i) Appellant shall compensate the versus
respondent for the deficiency in
SENIOR SUPERINTENDENT OF POST
service and unfair trade practice
OFFICES & ANR. —Respondents
in not handing over possession
of a constructed duplex house as Revision Petition Nos. 3383 & 3384 of 2017 against
promised and refund the amount Order dated 31.7.2017 in Appeal Nos. 24 & 30/2011 of
Uttar Pradesh State Consumer Disputes Redressal
of Rs 3,76,800 with interest @
Commission—Decided on 12.7.2024.
7.5% p.a. with effect from the
respective dates of deposit Consumer Protection Act, 1986 —
within 8 weeks failing which Sections 2(1)(g), 14(1)(d), 21(b) — Public
with interest @ 10% p.a. till Accounts Default Act, 1850 — Section 4 —
realization; Jurisdiction — Opening of two Recurring
Deposit (RD) accounts — Non-payment of
(ii) Direction of the State
maturity amount — Alleged deficiency in
Commission regarding payment
service — Complainant opened two RD
of Rs 10 Lakhs compensation for
accounts in the name of his minor son at the
monetary loss, mental agony and
office of OP-2 — RD Account No. 363378
harassment is set aside;
matured in November 2008 — Complainant
(iii) Appellant shall pay the contacted OP-2 for payment, but no payment
respondent litigation cost of was made, and passbook was retained by
Rs.1,00,000. OP-2 — Father of Complainant was an
(iv) There shall be no deductions on employee of the Respondent Department —
any account on the payments as Said RD account has been confiscated by
directed above. Respondent Department due to
embezzlement of Rs.5,62,032 under the
19. Pending IAs stand disposed with this Public Accounts Default Act, 1850 in
order. departmental proceedings against father of
Appeal partly allowed. Complainant — Grievance is as regards non-
release of maturity amount even after
acquittal — Confiscation of said RD Account
was based on the terms and conditions of
service of father of Complainant — His
grievance is liable to be addressed as per
procedures laid down within the Respondent

157