REPORTABL
E
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1758-1759 OF 2002
Manjul Srivastava ...
Appellant
VERSUS
Govt. of U.P. & Ors. ...Respondents
JUDGMENT
TARUN CHATTERJEE, J
1. These two appeals at the instance of Mrs.
Manjul Srivastava (appellant herein) have been filed
against the orders dated 9th of May, 2001 and 7th of
December, 2001 passed by the Monopolies and
Restrictive Trade Practices Commission, New Delhi
(in short “the Commission”) in C.A. No. 154 of 1998
and R.A. No. 37 of 2001, which also arose out of C.A.
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No. 154 of 1998, whereby the Commission had held
that the Ghaziabad Development Authority (in short
“the GDA”) had not resorted to any “unfair trade
practice” inasmuch as the appellant was
unsuccessful in the draw for allotment of a plot in
Govindpuram area of District Ghaziabad in the State
of Uttar Pradesh and, therefore, she could not be
termed as an “allottee” of the residential plot in that
area.
2. The facts leading to the filing of these appeals,
as emerged from the complaint filed by the appellant
before the Commission, may be narrated in a
nutshell as under:-
The dispute in these appeals pertains to
allotment of a certain plot of land by the GDA in its
Govindpuram Housing Scheme of the year 1988. The
appellant applied for allotment of a residential plot
pursuant to an advertisement of the GDA after
depositing registration fees for an amount of Rs.
7210/- on 10th of February, 1989. The GDA issued a
Reservation Letter to the appellant reserving plot
Category – D in her name and further requiring her
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to deposit the entire balance amount of Rs. 62,240/-
towards the estimated cost. In the Reservation
Letter, it was stipulated that if the payment was not
made within three months after it was due along with
penal interest, if any, the allotment would be treated
as cancelled without notice. It was further stipulated
that the possession of the plot would be given
in 1991 and that the draw for specific plot number
would be held separately. On 5th of April, 1989, the
appellant deposited the entire balance amount of
Rs. 62,240/- with the GDA but she was not put in
possession of any plot whatsoever.
3. After the lapse of almost nine years, more
particularly on 1st of October, 1997, the appellant
received a Registered Letter from the GDA informing
her that she had not been allotted a plot in the
Scheme and that the amount deposited by her with
the GDA would be refunded with 5% interest.
However, no reason for not giving possession of the
plot, already reserved in the name of the appellant,
was given.
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4. Feeling aggrieved by this action on the part of
the GDA of not allotting a plot in her name, although
the entire amount was deposited by the appellant,
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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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.
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[(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
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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
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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]
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New Delhi …………………….J.
August 29 , 2008 [Harjit Singh Bedi]
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