Manjul Srivastava vs Govt. Of U.P. & Ors

the appellant filed an application before the

Commission, which came to be registered as C.A.

No. 154 of 1998 alleging that the cancellation of the

allotment by the GDA was not only arbitrary but also

unfair and illegal, therefore, it amounted to "unfair

trade practice" under the Act. Accordingly, the

appellant sought for a direction to the respondent to

allot another plot to her or in the alternative, to pay

with interest at the rate of 20% on the entire

amount for the entire period and also for a direction

to pay compensation to her. On 23rd of

February, 2000, the GDA filed its reply to the above

application contending inter alia that since the

appellant was unsuccessful in the draw of lots, no

allotment could be made in her name. It was further

stated in defence that since no plot in the

Govindpuram Housing Scheme was available,

allotment of plot was also not possible and that the

GDA had given a public notice to the appellant to

4 collect the entire amount deposited with interest at

the rate of 5% in a local widely circulated newspaper

"Hindustan Times". Accordingly, GDA prayed for

dismissal of the application of the appellant.

On 30th of March, 1998, a supplementary application

was filed by the appellant by which the appellant had

brought to the notice of the Commission that after

the reservation of the plot, a draw was to be held only

for allotting the specific plot, namely corner plot, road

facing, park facing etc. and that no draw was to be

held for allotment for those persons for whom a plot

had already been reserved.

5. During the pendency of the application before

the Commission, the GDA had issued a Cheque for

Rs. 97,944/- to the appellant towards the amount

deposited by her along with interest at the rate of

5%. The appellant received the said cheque under

protest, but subsequently returned the entire

amount by drawing another cheque for the like

amount in favour of the GDA.

6. The Commission, by its Order dated 9th of

May, 2001, rejected the application filed by the

5 appellant primarily on the ground that the appellant

not being an "allottee" from the result of the draw

held, she was not entitled to any plot, as claimed,

and, therefore, the charge of "unfair trade practice"

against the GDA/respondent could not be

established. It was further held that under Clause 9

of the brochure, the appellant was only entitled to

the refund of the deposited amount with interest at

the rate of 5%.

7. Feeling aggrieved by this decision of the

Commission, the appellant also filed a Review

Application before the Commission, which came to be

registered as R.A. No. 27 of 2001, which was also

rejected by the Commission. Accordingly, being

aggrieved and dissatisfied with the Orders of the

Commission, the appellant has filed these two

appeals in this Court, which was heard in presence

of the learned counsel for the parties.

8. We have heard the learned counsel for the

parties and examined the impugned orders of the

Commission and also other materials on record

including the relevant clauses appearing in a

6 brochure pertaining to the Govindpuram Housing

Scheme in question. The only question that needs to

be decided in these appeals is whether the

Commission was justified in rejecting the application

of the appellant by the Orders impugned in these

appeals. Before we answer the question posed before

us, it would be expedient at this stage to record the

findings of the Commission while rejecting the

application of the appellant. The findings are to the

following effect :-

"Being not an allottee as the result of the draw held, the applicant has no legal right to the plot as claimed. Therefore, the charge of unfair trade practices against the respondent is not established. At best, the applicant is entitled to the refund of the amount deposited, which has since been received by it along with the interest at the rate of5%. In the result, the compensation application stands dismissed. No order as to costs in the facts and circumstances of the case."

9. Keeping the aforesaid findings of the

Commission in mind, let us now proceed with the

respective submissions advanced by the learned

counsel for the parties. The learned counsel

7 appearing for the appellant vehemently argued that

the appellant having made full and final payment to

the GDA well within the stipulated period as directed

by it and a plot was reserved for her which was to be

given to her in the year 1991 as per Clause 3 of the

reservation letter dated 10th of February, 1989 issued

by the GDA, the Commission was in error in holding

that the appellant was not an allottee of the plot

because she had failed in the draw inasmuch as a

plot had already been reserved in the name of the

appellant and the draw, if any, was only restricted in

allotment of specific plot numbers. The learned

counsel, therefore, submitted that the GDA, having

indulged in an "unfair trade practice", the Orders of

the Commission deserved to be set aside.

10. The submissions of the learned counsel for the

appellant were hotly contested by the learned senior

counsel appearing on behalf of the GDA. Mr. Vijay

Hansaria, learned senior counsel appearing for the

respondent/GDA contended that since the appellant

was not successful in the draw of lots and, therefore,

the GDA was, within its jurisdiction, not to allot any

8 plot to the appellant. It was further contended that

the GDA had already refunded the amount of

Rs.97,944/- to the appellant towards the amount

deposited by the appellant along with interest at the

rate of 5% and that amount was accepted by the

appellant, therefore, it was no longer open to the

appellant to challenge the Order of Cancellation after

having accepted the amount. Although, the said

amount of Rs.97,944/- was returned to the GDA

subsequently, it was further argued that since the

letter of the GDA dated 10th of February, 1989 was

only a Reservation Letter which was issued pursuant

to the application made by the appellant, no

allotment of any plot was made in favour of the

appellant on account of failure in the draw of lottery,

the question of canceling the reservation of a plot

alleged to have already made in favour of the

appellant could not arise at all. Accordingly,

Mr. Hansaria, learned senior counsel appearing for

the GDA sought for dismissal of the appeals and

submitted that the Orders passed by the Commission

were fully justified.

9

11. Before we proceed further, it is necessary to

reproduce some of the relevant clauses from the

brochure, which should be required for the proper

appreciation of the controversies involved. Clause 9

of the Brochure is produced as under :-

"9.00 UNSUCCESSFUL APPLICANTS

9.10 Those applicants, who have not been allotted/reserved plots houses, will be returned their registration amount without interest if the period of deposit of such money with GDA is less than one year.

9.20 However, if the period of deposit is more than one year, 5% simple interest shall be paid for the entire period of deposit.

9.30 For the purpose of calculation of period of deposit the month of deposit & refund shall not be counted. Any period after the date of start of refund of registration amount of unsuccessful applicants, shall not be counted for purpose of calculation of "period of deposit".

9.40 The registration amount shall be refunded to the unsuccessful applicants by Vijaya Bank 84, Navyug Market Ghaziabad directly.

9.50 The refund of registration amount to unsuccessful applicant shall be started after one month of the draw.

9.60 Unsuccessful applicants should contact personally or by post only the

10 Vijaya Bank 84, Navyug Market, Ghaziabad for refund of registration amount. They are required to surrender the original copy of challan from (Applicant's copy) duly signed on the reverse to the Bank.

9.70 GDA itself does not entertain any applicants directly for refund of registration amount."

12. In our view, the Commission was justified in

rejecting the claim of the appellant. The plot in

question was a category of plot (Category D) which

was only reserved for the appellant but from the

Clauses, as mentioned above, it would be clear that

the final allotment was to be made as regards specific

plots only after the lottery related to such allotment

was made. It is beyond dispute that in the draw of

lottery, the appellant was unsuccessful as her name

did not figure in the same. It could not be disputed

that `plot reserved' and a `plot allotted' are different

aspects altogether. A reading of the Clauses, as

indicated above, would clearly show that a plot was

reserved for her subject to the final allotment after

the lottery related to such allotment was made. It

11 would be evident that Clause 9.10 of the Brochure of

the GDA related to the distribution of plots which

clearly stipulates that the candidates who were not

allotted any plot, would be entitled to get refund of

the entire amount deposited with the GDA and also

the reserved amount with interest at the rate of 5%,

if such amount was kept with the GDA for less than

one year. Clause 9.50 deals with refund of

registration amount to unsuccessful applicant which

would start after one month of the draw. This Clause

clearly indicates that the refund of registration

amount to unsuccessful applicant shall start after

one month of the draw which would clearly show that

an applicant who is unsuccessful in the draw of lots

would only be entitled to the refund of registration

amount and such process of refunding the

registration amount shall start only after the draw of

lots are finalized. Therefore, reading the aforesaid

Clauses in the brochure, it is evident that since the

appellant was not allotted any plot and only a plot

was reserved subject to holding of a lottery for the

specific plots for allotment, the appellant would not

12 acquire any legal right to such plot, only she would

be entitled to get refund of her amount deposited

with the GDA.

13. In view of our discussions made hereinabove

and a clear reading of the clauses of the Brochure, it

would be evident that two separate parts of the

clauses have been indicated in the brochure. The

first part was with regard to the reservation amount

and second part was with regard to allotment of plot

if an applicant was successful in the draw of lots. In

this connection, the letter issued by the GDA dated

10th of February, 1989 may be looked into. The

subject indicated in the said letter to the appellant

was regarding reservation of Plot-D in Govindpuram:

then from the letter itself it would also be evident

that a plot was reserved for the appellant. It would

also be evident from the said letter that certain

clauses were inserted by the GDA if an applicant was

defaulter in payment of the balance amount. In this

connection, Clause 5 of the letter dated 10th of

February, 1989 needs reproduction :-

"Final cost of the plot shall be determined after taking into account its specific location in

13 terms of park-facing, corner, major road facing etc. for which extra rates are prescribed to be charged which will be intimated after allotment of specific plot."

It was made clear in the said letter that the allotment

was subject to conditions "Draw for specific Plot

number shall be held separately". Therefore, it must

be inferred that no plot was allotted to the appellant

since allotment of specific plot could not be made

because of failure on the part of the appellant to

succeed in the draw of lots. In our view, a reading of

this letter dated 10th of February, 1989 and also the

different clauses, as already indicated in the

brochure, we have no hesitation in agreeing with the

Commission that the appellant could not have

acquired any legal right for allotment of a plot until

and unless he could be found to be successful in the

draw of lots. Therefore, in our view, it was an amount

for reservation of Category-D plot, which by no

means, would lead to the inference of registration by

itself guaranteeing the allotment of a specific plot to

the appellant. In this connection, a decision of this

Court in Saurabh Prakash vs. DLF Universal Ltd. 14 [(2007) 1 SCC 228] was cited at the Bar. In our view,

the said decision of this Court is not applicable to the

present case. In any view of the matter, in the

peculiar facts and circumstances of that case, this

Court also expressed that the said decision shall not

be treated to be a precedent.

14. Before the Commission, the GDA, on affidavit,

asserted that no plot was available for

allotment to the appellant in the Govindpuram

Housing Scheme and, therefore, it would be

practically impossible to allot any plot, which is

not available with GDA for allotment, even if it

is held that allotment of plot was made by GDA

in favour of the appellant. A decision of this

Court in the case of Alok Shanker Pandey vs.

Union of India & Ors. [(2007) 3 SCC 545] may

be referred as it was also cited at the Bar. In

that decision it has been clearly held that the

amount of interest to be awarded for refund of

any amount deposited by the candidate would

depend upon the facts and circumstances of

each case. Such being the state of affairs, we

15 are of the view that the appellant should be

allowed to get refund from the GDA the entire

sum with interest at the rate of18% not at the

rate of 5% as we find that from the brochure

itself, it would be clear that in the event, the

appellant could not deposit the entire amount

after the allotment is made within certain time,

18% interest shall be levied on the appellant. It

is an admitted position that the appellant

deposited the entire amount as directed by the

GDA in the year 1989 and the order of

cancellation of reservation of a plot in favour of

the appellant was made after more than seven

years and, therefore, we must hold that the

respondent was liable to pay interest not at the

rate of 5% but at the rate of 18%. In the facts of

the present case, since the GDA had utilized

the entire amount of the appellant for their own

purpose till they had refunded the amount to

the appellant, we confirm the order of the

Commission holding that there was no "unfair

trade practice", but in the facts and

16 circumstances of the present case, we allow

these appeals in part and direct the respondent

to refund the money already deposited with the

GDA with interest at the rate of 18 per cent and

not at the rate of 5%.

15. Before we conclude, we may also mention that

the Commission was also justified in rejecting the

claim of the appellant for allotment of a plot in

Govindpuram Housing Scheme at Ghaziabad as we

find the entire amount of refund with 5% interest

was initially accepted by the appellant, but

subsequently, as noted herein earlier, she returned

the like amount to the GDA. Having accepted the

amount and encashed the same, it is no longer open

to the appellant to turn around and claim allotment

of plot from the GDA.

16. For the reasons aforesaid, the appeals are allowed

only to the extent indicated above. There will be

no order as to costs.

.....................

.......J. [Tarun Chatterjee]

17 New Delhi .........................J. August 29 , 2008 [Harjit Singh Bedi]

18