Before The
Hon’ble State Consumer Redressal Forum ( Appellate Authority)
Tehri Kothi, LUCKNOW
Appeal No. 2439 of 2007
Smt. Archana Saxena
Versus Allahabad Development Authority and Other
WRITTEN
SUBMISSIONS
To
The Hon’ble The
Chairman and His Lordship other companion Justices of this Hon’ble Court.
The humble Applicant
Most Respectfully Begs As Under:-
1.
That
the Allahabad Development Authority issued and advertisement in the month of January, 1991 inviting
prospective applicants to apply for obtaining the residential accommodation at
Neem Sarai and Kasari Masari Housing Scheme, Allahabad. The
accommodation was said to have been Constructed on the spot , but actually the
caricature of such structure was found on the spot on 12. 4. 1991. Amongst the
different category of groups, it was stipulated that registration amount of Rs. 30,000/- is required for H.I.G. flats at Neem
Sarai Housing Scheme and Rs. 1,35,000/- was required to be deposited at the
time of issuance of possession letter as first installment, while
remaining amount of Rs. 1,35,000/- shall be taken in 120 installments
comprising of Rs. 2265/- (along with interest of 16% per annum) each every month.
2.
That the petitioner got herself registered by
depositing an amount of Rs. 30,000/- on 23.1.1991 as per terms and condition of
the aforesaid advertisement. She being
a handicapped lady on account of her road accident due to turning over the
vehicle at Tehri Garhwal, invested entire compensation amount awarded to her in
M.A.C.T. Case decided at Pauri Garhwal, as she got the permanent disability of
M.T. Temporo- mandicular joints with deficiency on opening of mouth with
impairment of left upper arm and loss of anterior part of Tongue in the said
accident. She was M.A. Psychology, M.A. (Previous) Sitar student when the
accident took place, but subsequently completed social psychretic diploma from
Ranchi and thus needed a residential accommodation due to apathetical
approach by her husband after matrimonial alliance.
3.
That to the utter surprise the petitioner got a notice dated 19.3.1991 stating therein that
(just after 47 days of her registration) now she is required to deposit Rs.
1,57,500/- instead of Rs. 1,35,000/- otherwise her registration amount
shall be forfeited.
4.
That,
the submissions before Hon’ble court were that since the advertisement issued
in news papers with the attractive allurement that it is the golden opportunity
is purchase the flats of different category the allotment letter was issued to
the applicant on 19.3.1991, just after 45 days of depositing the registration
amount and it was stated that in case the applicant fails to pay the announce
the amount Rs. 1,57,500/-, the registration charges amounting to Rs. 30,000/-
shall be forfeited. It is submitted that when the applicant went to the office
of the secretary and it was disclosed by her that she required to deposit Rs.
1,35,000/- only and the total cost is tentatively Rs. 3,00,000/- and as such
there may be realization of cost at final costing and not within 45 days when
the house was not even constructed on 19.3.1991 in the first installment, for which there was
nothing in Browser or in the advertisement published in the Newspaper. How does
the cost could have been escalated by enhancing an amount of Rs. 1,57,500/-
from 1,35,000/- within a period of 45 days?. At the time said allotment letter,
even the road was not accessible for reaching upto the location of the flats,
nor the door have been fixed upon the caricature of the house constructed of
the brick work (As per their own report based upon the Joint inspection of
Engineers of A.D.A. on 11. 4.1991). There was no ventilator pan affixed upon
any windows: nor there was any amenity amenable for the human dwelling of the
applicant. Thus in such situation, there could have not been any enhancement of
the first Installment. The aforesaid condition of the flat remained as it was
on 11.04.1991 upto the year of June, 1992 and thereafter the petitioner moved
number of the application for giving him the possession, as she had already deposited Rs. 1,57,500/- on
29.10.1991 in compliance of interim order passed on 16.05.1991, 09.08.1991,
22.10.1991 directing the to deposit such amount and to Allahabad
Development Authority to handover the possession to the petitioner. The petitioner deposited Rs. 1,57,500/- on
29.10.1991 in compliance of interim order, but the delivery of
possession letter was not given in view of the fact that neither the
construction was started upto the time of demand of the notice in pursuance of
the allotment order 19.03.1991 nor subsequently thereafter upto June, 1992. The
flat allotted to the applicant remain occupied for the purposes of accumulation
of the article. used in construction of other flats by A.D.A. authorities,
required for construction of other flat; namely the iron rods, cement and other
item of sanitary work, and as such, the
inability was shown to the applicant for handing over the possession.
Subsequently on 29.10.1991 upto 12.10.1993 when the applications were given for
handing over the possession, the possession letter was not given to the
applicant; the flat was in the occupation of unauthorized occupation. Thus
there is no fault attributable on the part of applicant, while the Development
Authority are guilty of misfeasance in public office and the loss in injury
suffered by the applicant at the hands of said authority due to their malafide
and capriciousness/ oppressions acts, the applicant is entitled to compensation
for the loss and injury suffered by A.D.A. to her harassment, mental agony,
frustration ,discomposure and disappointment to the handicapped applicant
5.
That the wrong
committed by the respondents in delay in delivery of possession from the date of
deposit of the amount of Rs. 1,57,500/- (Plus Rs. 30,000/-) after issuance of
allotment letter on 29.10.1991 is solely attributed on the part of respondents.
The respondents have not given the possession, but kept on letting out the same
to same un-authorised person and the officials of respondents were indulged in
restriction unfair trace practice by providing harassment to the applicant, who
herself is a handicapped lady due to Road accident in the year 1977. There is
another aspect of the matter that stamp duty chargeable at the time of having
the entire deposit made by the applicant in pursuance of the demand of notice
dated 24.03.2002 has also been enhance to the disproportionate extent. In 2002
when the entire deposit was made by the petitioner towards the cost of the flat
No. H.I.G. 27, Neem Sarai, Allahabad, there was the further demand made from
the applicant regarding realisation of the interest amounting to the Rs.
13000/- made with affect from 19.03.1991 upto 11.11.1991 @ the rate of 18%
towards the interest as the amount of Rs. 1,57,500/- deposited on 29.10.1991
was actually endorse with the account of the A.D.A. on 11.11.1991 and as such
from the date of the notice having the intimation of the possession (Possession
Letter) since the protection was granted by the Hon’ble Court, Allahabad in
writ petition no. 15455of 1991, the A.D.A. has demanded the interest on the
late payment, which was not deposited by the applicant on 1.04.2003, thus the
registration of the flat could not be done and registration fees should have
been charged on price of the land and whatever has been increased in the stamp
duty chargeable of the valuation of the flat, the same may be re-imbrued and
the difference amount may be realized as the damages/compensation provided to
the applicant on account of the delay in
execution of the sale deed. The relevant provision applicable in this regard
are reproduce as under:-
6.
The respondents may be directed to make payment of
interest at the rate of 18-percentage w.e.f. 29.10.1991 upto 30.6.1999 on the
amount of Rs. 1,87,500/- in pursuance of Hon’ble High Court order in
anticipation that she will get the Possession of flat No. H.I.G. 27 at Neem
Sarai in compliance of Hon’ble High
Court order passed in Writ Petition No. 15455 of 1991, Archana Saxena Versus
A.D.A. Allahabad and others, as it remain applicable in banks and other
financial institution at the relevant time, and also the damages for mental agony, frustrations, disappointments,
discomfitures, being chafed again and again before it may heel to the
handicapped woman, compensation for late Registration of Sale deed as the
Entire amount was deposited as per the demand upto 1st April,
2002, except the Interest amount of Rs.
13,787/- and the Kist Rent of Rs. 13,145/-being demanded from 19.3.1991 or
12.4.1991 at the rate of 18 –percentage upto 11.11.1991 upon late payment of
Rs.1,57,500/- and also direct them not to take interest of 66- percentage in installment payment i.e. at Rs.
2265/- interest realized is approximately
Rs. 1886.67/-, while principal amount is only rs.450/-, even if
the applicant was ready for the entire deposit of the cost . When the house was
not even constructed. The applicant had
earned this amount as the compensation amount from the accident on 13.8.1977 at
Tehri Garhwal and by taking loan from relatives.
7. That
at that juncture the petitioner filed
the writ petition No. 15455 of 1991 stating therein that although tentative
cost of flat was notified in the public advertisement as Rs. 3,00,000/-, but
within a short period of about 47 days, the demand of enhanced amount from Rs.
1,35,000/ to Rs. 1,57,500/- by the impugned notice Dt. 19.3.91 is arbitrary, as neither the road accessible to the flat,
nor the flat is amenable for human dwelling as amenities of road, water
electricity, drainage and door, plaster of Cement has yet not completed and as
such the aforesaid demand is not only arbitrary, but unreasonable as even if there
may be declaration of tentative price, the final cost of flat could have been
assessed at the time of depositing the entire money after giving the possession
of the flat by incurring only stipulated amount of Rupees 1,35,000/-, which was
lying with the petitioner as the award of compensation claim given in the year
1985.
8.
That Hon’ble
Allahabad High Court
by the interim order passed on 16.5.1991, 9.8.1991, extended on
22.10.1991 directed the petitioner to deposit Rupees 1,57,500/- till
14.11.1991, which was complied upon by the petitioner by depositing a Bank
Draft of Rs. 1,57,500/- dated 29.10.1991 and duly acknowledge in Account of
Allahabad Development Authority on 11.11.1991.
9.
That the contesting respondents did not file and
Counter Affidavit upto May, 1997, nor the possession of Plat No. H.I.G. 27 Neem
Sarai was given to the petitioner inspite the request made in this regard with
the officials of A.D.A. coupled with representations given to them for
compliance of interim orders regarding delivery of possession on 29.10.1991
upto 12.10.1993 by regularly knocking the doors of respondents.
10. That
when in spite the amount deposited amounting to Rs. 1,57,500/- within
stipulated period in compliance of Hon’ble Court orders and the possession was
not delivered to the petitioner, then a legal notice dated 7.5.1999 for
initiating proceedings under Article 215 of the Constitution of India were
passed by this Hon’ble Court on 20.5.1999 coupled with legal notice received on
11.5.1999 (as Admitted in the counter affidavit filed by official of
respondents/Development Authority before Hon’ble High Court).
11. That Pursuant to the notice of
Contempt of the Interim order issued by the Allahabad high Court directing the
Vice chairman and the Secretary, Allahabad Developing Authority and tendering
their apologies for the willful defiance’s of the Interim orders passed in Writ
Petition No. 15455 of 1991 by the Division bench Presided by then Hon’ble
Justice B. K. Rao and after giving assurance that Possession shall be given to
the petitioner after completing certain formalities as that of entering in the
agreement and for giving possession of the Flat after getting the unauthorized
occupant evicted from her flat No.
H.I.G. 27 at Neem Sarai , the contempt notices issued for prosecution of the
opposite parties were discharged by Hon’ble High court.
12. That
ultimately the possession letter was given to the petitioner on 30.6.1999.
However, the physical possession was
not given in view of fact that flat allotted to the petitioner was previously
let out to one Munna Tailor and subsequently to one Ramayan Tripathi Contractor,
who continued to remain in possession even after issuance of Possession letter.
13. That
the physical possession was given only with the help of the police on 25.8.1999 to the petitioner. That the petitioner sought for supplying the
necessary items as the flat may become fit for human dwelling. It was requested
that the Development Authority may provide Sink, Mirror, Water Tank, Shower
tabs on water point, main switch, light points and ceiling fill up with rainy
water having the moisture in the entire flat, without having even the plaster,
may be cured within due course of time, but nothing was done in this regard.
14. That the petitioner before taking the
possession also deposited Rs. 1520/- through receipt no. 38 on 29.5.1999, and
thereafter she deposited the aforesaid amount
a.
Rs. 2265/- through receipt no. 28 on 25.8.1999,
b.
Rs. 2265/- through receipt no. 43 on 31.8.1999,
c.
Rs. 4460/- through receipt no. 19on 5.11. 1999,
d.
Rs. 4460/- through receipt no. 29 on 28.1.2000,
e.
Rs. 2230/- through receipt no. 12 on 19.2.2000,
f.
Rs. 2230/- through receipt no. 11 on 25.3.2000,
g.
Rs. 2230/- through receipt no. 6 on 20.4.2000,
h.
Rs. 2230/- through receipt no. 24 on 25.5.2000,
i.
Rs. 4460/- through receipt no. 34 on 14.8.2000,
j.
Rs. 2230/- through receipt no. 13 on 16.10.2000,
15.
That
in spite the petitioner had already
deposited Rs. 1,92,480/- upto that period
and without taking into consideration the deposit of the aforesaid
amounts of Rs. 1,92,480/- in addition to the deposit made of Rs.
1,87,500/- upto 11.11.1991, a demand of Rs. 1,46,533/- was issued on
11.7.2001 stating there in that said amount be deposited on 31.7.2001. The
petitioner deposited Rs. 60,000/- through receipt no. 46 on 24.4.2001, Rs.
44,500/- through receipt no. 32 on 27.7.2001 and Rs. 50,000/- through receipt
no. 13 on 10.12.2001.
16.
That
without taking into consideration the deposit of the aforesaid amounts in
addition to the deposit made of Rs. 1,87,500/- upto 11.11.1991, the arbitrary
demand was made by the Development Authority by issuance of another notice on
26.12.2001 stating therein that an amount of Rs. 1,43,533/- is lying against
her, in which only Rs. 50,000/- has been taken to be deposited so far. The
aforesaid notice was given without the said notice dated 26.12.2001 was
received, the petitioner had already deposited Rs. 1,92,480/- in addition to
the deposit made of Rs. 1,87,500/- upto 11.11.1991 upto that period. The
aforesaid notice was further stipulating with malafide intention that in case
the amount directed to be deposited as per demand of Development Authority made
of Rs. 1,46,533/- on 11.7.2001, while Rs. 1,43,533/- on 26.12.2001. The same
shall be recovered as arrear of land revenue through District Magistrate.
17. .
Thus the respondents are liable to make
the payment of the interest from 29.10.1991 to 28.7.1999 to the applicant at
the rate of 18% per annum over the amount already deposited in the tune of Rs.
187500/- by the applicant in pursuance of the advertisement and after the
issuance of the allotment letter to the applicant.
18. That
it is submitted that although the petitioner made the demand for making a
payment of the interest at the rate of 18% from 29.10.1991 to 30.6.1999
amounting to Rs. 2,17,350/- as despite the interim order passed by this Hon’ble
Court on 9.8.1991, the possession letter was given only on 30.6.1999, while
physical possession without having any item for making aforesaid flat fit for
human dwelling was not provided upto 25.8.1999, when unauthorized occupant
occupying flat vacated, the same by delivery of possession without any amenity
available inside the flat No. H.I.G. 27 Neem Sarai, Allahabad.
19. That
subsequently thereafter another letter was given to the petitioner along with
the alleged deposit shown to have made by the petitioner without even taking
into account the actual deposit made by the petitioner amounting to Rs.
1,92,480/- However, it was stipulated that upto July 2001 only a balance amount
of Rs. 80,076/= &.69 Paise was
shown, as the due lying against petitioner according to their own showing.
Since from July, 2001 onward the petitioner deposited Rs. 44,500/- and Rs.
50,000/- and as such even according to deposit made subsequent to the estimate
given by the respondents amounting to Rs. 80,076.69 Paise, the petitioner
deposited much more of the money in comparison to remaining amount of Rs.
1,35,000/- due as on 30.6.1999, in which the petitioner had deposited Rs.
1,92,480/- under threat and coercion of the respondents for making recovery of
Rs. 1,43,533/- as arrears of land revenue, which was given on 26.12.2001.
20. That
thereafter the petitioner was informed that final assessment of amount payable
by the petitioner has been assessed as Rs. 3900/- towards the additional land,
Rs. 23,656/- as main Road charge Rs. 13,145/- as Kist rent, while an interest
of amount deposited instead of 19.4.1991 upto 11.11.1991 was assessed as Rs.
13,787/-, while the aforesaid calculation was based on incomplete amount of
deposit shown in the aforesaid letter dated 13.3.2002 and as such the
petitioner in furtherance of said demand of Rs. 54,913/- deposited Rs. 41,000/-
through receipt no. 28 on 1.4.2002 after
receive of aforesaid letter.
21. That
in this manner the grievances of the petitioner are now confined only in
respect of issuance of directions to the Development Authority to return an
amount of Rs. 2,17,350/- as in spite the directions contained in the interim
order passed on 9.8.1991, the possession letter was given on 30.6.1999 and as
such the petitioner is also entitled to claim the interest at the rate of
simple 18%, while the Development Authority on the other hand is charging the
compoundable interest from the allot tees of flat much higher than the demand
made by the petitioner. The petitioner has also sought for execution of sale
deed.
22. That
the maxim – ‘ebi jus et remedium’ is
applicable as fairness in action must be perceptible if not transparent.
In the present case, the petitioner being a handicapped lady has been subjected
to not only by the officials of Development authority, but also by the out
sider, who were occupying her flat even after an amount of Rs. 1,87,500/- was
deposited by the petitioner upto 29.10.1991 through Bank Draft, which was taken
note by the official of Development Authority on 11.11.1991. Thus the interest
of 18% in consonance with the interest chargeable by them may kindly be
directed to be realized by the petitioner.
23. That
the petitioner is relying upon the decision reported in case of Sri N.D. Ojha case reported in 2003 (2)
UPLBEC 1325, Ghaziabad Development Authority case reported in 2004 (5) SCC 65,
Lucknow Development Authority case reported in 1994 (1) SCC 243 and Haryana
Urban Development Authority case reported in 2005 (1) UPLBEC 43, apart
from other decisions referred to above, for Justifying her right for
realisation of the amount amounting to Rs. 2,17,350/- in case the possession
was not given even after directions of this Hon’ble Court
24. The
subsequent events and development may be considered to be taken into
consideration, as justice may not be prejudiced, circumvented, nullified by the
respondents in respect of right of petitioner, which has been accrued in her
favour by the interim order passed on 9.8.1991 further extended upto 14.11.1999
when the petitioner made deposit of Rs. 1,57,500/- for obtaining possession of
Flat through Bank Draft Dt. 29.10.1991 in favour of Secretary, Allahabad
Development Authority, Allahabad.
25. That
although all the documents referred to above in the Synopsis has been placed on
record, but in order to provide more authenticity the submissions made by the
petitioner, the photo stat copy of the documents already annexed starting from
Public advertisement issued in the newspaper in January, 1991 till the payments
made by the petitioner under protest, threat of eviction and coercive
measurement, threatening her for realization of amount as arrears of land
revenue, just to wreck the vengeance without even any hypothetical
justification, are filed along with present Synopsis. Some of the judgment
referred to above are also supplied along with present synopsis as admittedly
the action of the respondents in depriving the petitioner from her right of
property and amount paid, which was given to her due to road accident, is not
only contemptuous and has been done with malafide intention, but she in spite
being handicapped lady and having constraint to perform her activities like
healthy human being, she had suffered the mental agony, disappointment,
discomfiture and frustration by the Development Authority simply on account of
fact that she has taken protection of this Hon’ble Court for redress of her
grievances against the arbitrary action of the officials of Development Authority
by filing the present claim petition.
“It
has been contended that there is extreme harshness regarding the charges of
registration fee for execution of instrument for conveying the title of the
petitioners. The legal aspect , which is sought to be enforceable upon after
decision of this Hon’ble Tribunal may be taken in consideration:-
“Uttar
Pradesh with regards to payment of Stamp Duty.”
2(6) Chargeable- Chargeable
means, as applied to an instrument executed, or first executed after the
commencement of this act, chargeable under this act, and as applied to any
other instrument, chargeable under the law in force in India, when such
instrument was executed, or where several persons executed the instrument, at
different times first executed.
2(10) “Conveyance”- Conveyance
includes a conveyance on sale and every instrument by which property, whether
movable or immovable is transferred inter vivos, and which is not otherwise
specifically provided for by schedule 1, Schedule 1-A or schedule 1B as the case
may be………..
2(14) “Instrument” – Instrument
includes every document and record created or maintained in or by an electronic
storage and retrieval device or media by which any right or liability is, or
purports to be creat.. transferred, limited, extended, extinguished or
recorded.
3. Instrument chargeable
with duty-subject to provisions of this act and the exemptions contained in
schedule I the following instrument shall be chargeable with duty of the amount
indicated in that schedule as the proper duty.”
23-A Certain instruments
connected with mortgages of marketable securities to be chargeable as
agreements-(1) Where an instrument (not being a promissory note) or bill of
exchange-
(a) is given upon the
occasion of the deposit of any marketable security by way of security for money
advanced or to be advanced by way of loan, or for an existing or future debt,
or
(b) makes redeemable or
qualified a duly stamped transfer, intended as a security, of any marketable
security, it shall be chargeable with duty as if it were an agreement or
memorandum of an agreement chargeable with duty under Article No. 5(c) of
Schedule I-B”
Since the scheme is of self-financing nature
and the petitioners contribute the entire money for the construction of the
house in all reasonableness and fairness, the registration fee should be
charged on the price of land and not on the price of the house and to this
extent we issue order that the registration fee is only payable and chargeable
on the price of the land as the entire construction cost is contributed by the
petitioners.”
PRAYER
That it is, therefore most respectfully Prayed that:-
1). That the petitioner/ applicant
most respectfully demands for making a
payment of the interest at the rate of 18% from 29.10.1991 to 30.6.1999
amounting to Rs. 2,17,350/- payable to the applicant to be realised from the opposite parties: as despite the
interim order passed in Writ Petition No. 15455 of 1991 (decided on 28.2.2006
by Hon’ble High Court with the observation in favour of applicant to realise
Interest for delay caused in handing over the possession), the possession
letter was given only on 30.6.1999, while physical possession was not provided
upto 25.8.1999, when unauthorized occupant occupying flat vacated;
2). That since the flat, given at the time of issuance
of possession letter was given to the
applicant without any amenity available inside the flat No. H.I.G. 27, Neem
Sarai, Allahabad, the Allahabad Development Authority may provide the cost
of Sink, Mirror, Water Tank, Shower tabs
on water point, main switch, light points, which have not been provided till
date and pay damages of Rs. 50,000/- for
using inferior quality of material in the flat, as written by the applicant at
the time of issuance of the possession
letter that ceiling fill up with rainy
water having the moisture in the entire flat, without having even the plaster,
may be cured within due course of time, but nothing was done in this regard.
3).
That since the respondents have demanded by the letter dated 13.3.2002 in furtherance of Final demand of Rs.
54,913/- which include the demand of Rs.
13,145/- as Kist rent, while an interest of amount deposited instead of
19.4.1991 upto 11.11.1991 was assessed as Rs. 13,787/-in the final assessment,
by stating the same to be the interest realised by them on late deposit of Rs.
1,57,500/- deposited on 29.10.1991 instead of 12.4.1991, which includes 16%
interest and 15% penal interest, the
applicant has deposited Rs. 41,000/- through receipt no. 28 on 1.4.2002 after
receive of aforesaid letter and as such nothing is due against the
petitioner/applicant towards the Flat No. H.I.G.27 Neem Sarai, allotted to her,
the sale deed may be directed to be executed.
4). That the opposite parties may be directed the excess money realised
by them including included the excess
money charged under the garb of realisation of interest on installments @ 66%
may be reimbursed from the amount paid as Rs. 1,92,480/- after issuance
of possession latter on 30.6.1999 and Rs. 1,87,500/- upto 29.10.1991 in
furtherance of allotment letter dated 19.3.1991. They realised exorbitant Interest from Consumer under the garb
of realisation of amount in installments and thus they may be directed to them
not to take interest of 66- percentage in installment payment i.e. at Rs.
2265/- interest realized is approximately Rs. 1886.67/-, while principal amount
is only Rs.450/-,and if the same is realised when applicant was ready to pay
the entire amount . The damages of Rs.50, 000/- may be given to the petitioner
towards non- pecuniary loss for mental agony , discomfiture, frustration and
disappointment, which was chafed again and again ;before it may heal. The same may be reimburse to applicant.
5). “It has been
submitted that the amount payable towards
STAMP DUTY as was chargeable on 21.3.2002, the money included the excess
money may be charged from opposite
parties as there is exorbitant increase in the stamp Duty and extreme
harshness regarding the charges of registration fee for execution of instrument
for conveying the title of the petitioners. The legal aspect , which is sought
to be enforceable upon after decision of this Hon’ble Tribunal may be taken in
consideration.
Dt./- 13th August, 2008
(YOGESH KUMAR SAXENA)
Advocate
Enrolment No. 946 of 1974
Counsel for the Appellant/ Petitioner Chamber
No. 139, High Court, Allahabad.
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