{"id":87920,"date":"2008-08-29T00:00:00","date_gmt":"2008-08-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/manjul-srivastava-vs-govt-of-u-p-ors-on-29-august-2008"},"modified":"2017-09-28T05:45:03","modified_gmt":"2017-09-28T00:15:03","slug":"manjul-srivastava-vs-govt-of-u-p-ors-on-29-august-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/manjul-srivastava-vs-govt-of-u-p-ors-on-29-august-2008","title":{"rendered":"Manjul Srivastava vs Govt. Of U.P. & Ors on 29 August, 2008"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Manjul Srivastava vs Govt. Of U.P. & Ors on 29 August, 2008<\/div>\n
Author: Tarun Chatterjee<\/div>\n
Bench: Tarun Chatterjee, Harjit Singh Bedi<\/div>\n
                                                 REPORTABL\n                                      E\n\n          IN THE SUPREME COURT OF INDIA\n           CIVIL APPELLATE JURISDICTION\n\n\n\n         CIVIL APPEAL NO. 1758-1759 OF 2002\n\n\n\nManjul Srivastava                                   ...\nAppellant\n\n\nVERSUS\n\nGovt. of U.P. & Ors.                   ...Respondents\n\n\n\n                       JUDGMENT\n<\/pre>\n
TARUN CHATTERJEE, J<\/p>\n
1.   These two appeals at the instance of Mrs.<\/p>\n
Manjul Srivastava (appellant herein) have been filed<\/p>\n
against the orders dated 9th of May, 2001 and 7th of<\/p>\n
December, 2001 passed by the Monopolies and<\/p>\n
Restrictive Trade Practices Commission, New Delhi<\/p>\n
(in short “the Commission”) in C.A. No. 154 of 1998<\/p>\n
and R.A. No. 37 of 2001, which also arose out of C.A.<\/p>\n
                                                          1<\/span>
\nNo. 154 of 1998, whereby the Commission had held<\/p>\n
that the Ghaziabad Development Authority (in short<\/p>\n
“the GDA”) had not resorted to any “unfair trade<\/p>\n
practice”     inasmuch     as    the    appellant    was<\/p>\n
unsuccessful in the draw for allotment of a plot in<\/p>\n
Govindpuram area of District Ghaziabad in the State<\/p>\n
of Uttar Pradesh and, therefore, she could not be<\/p>\n
termed as an “allottee” of the residential plot in that<\/p>\n
area.\n<\/p>\n
2.      The facts leading to the filing of these appeals,<\/p>\n
as emerged from the complaint filed by the appellant<\/p>\n
before the Commission, may be narrated in a<\/p>\n
nutshell as under:-\n<\/p>\n
        The dispute in these appeals pertains to<\/p>\n
allotment of a certain plot of land by the GDA in its<\/p>\n
Govindpuram Housing Scheme of the year 1988. The<\/p>\n
appellant applied for allotment of a residential plot<\/p>\n
pursuant to an advertisement of the GDA after<\/p>\n
depositing registration fees for an amount of Rs.<\/p>\n
7210\/- on 10th of February, 1989. The GDA issued a<\/p>\n
Reservation Letter to the appellant reserving plot<\/p>\n
Category – D in her name and further requiring her<\/p>\n
                                                            2<\/span>
\nto deposit the entire balance amount of Rs. 62,240\/-<\/p>\n
towards the estimated cost.      In the Reservation<\/p>\n
Letter, it was stipulated that if the payment was not<\/p>\n
made within three months after it was due along with<\/p>\n
penal interest, if any, the allotment would be treated<\/p>\n
as cancelled without notice. It was further stipulated<\/p>\n
that the possession of the plot would be given<\/p>\n
in 1991 and that the draw for specific plot number<\/p>\n
would be held separately. On 5th of April, 1989, the<\/p>\n
appellant deposited the entire balance amount of<\/p>\n
Rs. 62,240\/- with the GDA but she was not put in<\/p>\n
possession of any plot whatsoever.\n<\/p>\n
3.   After the lapse of almost nine years, more<\/p>\n
particularly on 1st of October, 1997, the appellant<\/p>\n
received a Registered Letter from the GDA informing<\/p>\n
her that she had not been allotted a plot in the<\/p>\n
Scheme and that the amount deposited by her with<\/p>\n
the GDA would be refunded with 5% interest.<\/p>\n
However, no reason for not giving possession of the<\/p>\n
plot, already reserved in the name of the appellant,<\/p>\n
was given.\n<\/p>\n
                                                         3<\/span>\n<\/p>\n
4.     Feeling aggrieved by this action on the part of<\/p>\n
the GDA of not allotting a plot in her name, although<\/p>\n
the entire amount was deposited by the appellant,<\/p>\n
the   appellant       filed    an     application       before       the<\/p>\n
Commission, which came to be registered as C.A.<\/p>\n
No. 154 of 1998 alleging that the cancellation of the<\/p>\n
allotment by the GDA was not only arbitrary but also<\/p>\n
unfair and illegal, therefore, it amounted to “unfair<\/p>\n
trade practice” under the Act.                   Accordingly, the<\/p>\n
appellant sought for a direction to the respondent to<\/p>\n
allot another plot to her or in the alternative, to pay<\/p>\n
with interest at the rate                 of 20% on the entire<\/p>\n
amount for the entire period and also for a direction<\/p>\n
to    pay        compensation        to   her.        On      23rd    of<\/p>\n
February, 2000, the GDA filed its reply to the above<\/p>\n
application contending inter alia that since the<\/p>\n
appellant was unsuccessful in the draw of lots, no<\/p>\n
allotment could be made in her name. It was further<\/p>\n
stated      in    defence     that    since      no   plot     in    the<\/p>\n
Govindpuram           Housing        Scheme       was        available,<\/p>\n
allotment of plot was also not possible and that the<\/p>\n
GDA had given a public notice to the appellant to<\/p>\n
                                                                           4<\/span>
\ncollect the entire amount deposited with interest at<\/p>\n
the rate of 5% in a local widely circulated newspaper<\/p>\n
“Hindustan Times”.        Accordingly, GDA prayed for<\/p>\n
dismissal    of   the   application   of   the    appellant.<\/p>\n
On 30th of March, 1998, a supplementary application<\/p>\n
was filed by the appellant by which the appellant had<\/p>\n
brought to the notice of the Commission that after<\/p>\n
the reservation of the plot, a draw was to be held only<\/p>\n
for allotting the specific plot, namely corner plot, road<\/p>\n
facing, park facing etc. and that no draw was to be<\/p>\n
held for allotment for those persons for whom a plot<\/p>\n
had already been reserved.\n<\/p>\n
5.    During the pendency of the application before<\/p>\n
the Commission, the GDA had issued a Cheque for<\/p>\n
Rs. 97,944\/- to the appellant towards the amount<\/p>\n
deposited by her along with interest at the rate of<\/p>\n
5%.   The appellant received the said cheque under<\/p>\n
protest,    but   subsequently    returned       the   entire<\/p>\n
amount by drawing another cheque for the like<\/p>\n
amount in favour of the GDA.\n<\/p>\n
6.    The Commission, by its Order dated 9th of<\/p>\n
May, 2001, rejected the application filed by the<\/p>\n
                                                                5<\/span>
\nappellant primarily on the ground that the appellant<\/p>\n
not being an “allottee” from the result of the draw<\/p>\n
held, she was not entitled to any plot, as claimed,<\/p>\n
and, therefore, the charge of “unfair trade practice”<\/p>\n
against     the     GDA\/respondent         could     not        be<\/p>\n
established. It was further held that under Clause 9<\/p>\n
of the brochure, the appellant was only entitled to<\/p>\n
the refund of the deposited amount with interest at<\/p>\n
the rate of 5%.\n<\/p>\n
7.   Feeling       aggrieved   by this    decision    of        the<\/p>\n
Commission, the appellant also filed a Review<\/p>\n
Application before the Commission, which came to be<\/p>\n
registered as R.A. No. 27 of 2001, which was also<\/p>\n
rejected by the Commission.              Accordingly, being<\/p>\n
aggrieved and dissatisfied with the Orders of the<\/p>\n
Commission, the appellant has filed these two<\/p>\n
appeals in this Court, which was heard in presence<\/p>\n
of the learned counsel for the parties.<\/p>\n
8.   We have heard the learned counsel for the<\/p>\n
parties and examined the impugned orders of the<\/p>\n
Commission and also other materials on record<\/p>\n
including    the    relevant   clauses    appearing        in    a<\/p>\n
                                                                      6<\/span>
\nbrochure pertaining to the Govindpuram Housing<\/p>\n
Scheme in question. The only question that needs to<\/p>\n
be   decided    in    these   appeals    is   whether   the<\/p>\n
Commission was justified in rejecting the application<\/p>\n
of the appellant by the Orders impugned in these<\/p>\n
appeals. Before we answer the question posed before<\/p>\n
us, it would be expedient at this stage to record the<\/p>\n
findings of the Commission while rejecting the<\/p>\n
application of the appellant. The findings are to the<\/p>\n
following effect :-\n<\/p>\n
      “Being not an allottee as the result of the
\n      draw held, the applicant has no legal right
\n      to the plot as claimed. Therefore, the
\n      charge of unfair trade practices against the
\n      respondent is not established. At best, the
\n      applicant is entitled to the refund of the
\n      amount deposited, which has since been
\n      received by it along with the interest at the
\n      rate of5%. In the result, the compensation
\n      application stands dismissed. No order as
\n      to costs in the facts and circumstances of
\n      the case.”\n<\/p><\/blockquote>\n
9.    Keeping        the   aforesaid    findings   of   the<\/p>\n
Commission in mind, let us now proceed with the<\/p>\n
respective submissions advanced by the learned<\/p>\n
counsel for the parties.           The learned counsel<\/p>\n
                                                              7<\/span>
\nappearing for the appellant vehemently argued that<\/p>\n
the appellant having made full and final payment to<\/p>\n
the GDA well within the stipulated period as directed<\/p>\n
by it and a plot was reserved for her which was to be<\/p>\n
given to her in the year 1991 as per Clause 3 of the<\/p>\n
reservation letter dated 10th of February, 1989 issued<\/p>\n
by the GDA, the Commission was in error in holding<\/p>\n
that the appellant was not an allottee of the plot<\/p>\n
because she had failed in the draw inasmuch as a<\/p>\n
plot had already been reserved in the name of the<\/p>\n
appellant and the draw, if any, was only restricted in<\/p>\n
allotment of specific plot numbers.      The learned<\/p>\n
counsel, therefore, submitted that the GDA, having<\/p>\n
indulged in an “unfair trade practice”, the Orders of<\/p>\n
the Commission deserved to be set aside.<\/p>\n
10.   The submissions of the learned counsel for the<\/p>\n
appellant were hotly contested by the learned senior<\/p>\n
counsel appearing on behalf of the GDA. Mr. Vijay<\/p>\n
Hansaria, learned senior counsel appearing for the<\/p>\n
respondent\/GDA contended that since the appellant<\/p>\n
was not successful in the draw of lots and, therefore,<\/p>\n
the GDA was, within its jurisdiction, not to allot any<\/p>\n
                                                         8<\/span>
\nplot to the appellant. It was further contended that<\/p>\n
the GDA had already refunded the amount of<\/p>\n
Rs.97,944\/- to the appellant towards the amount<\/p>\n
deposited by the appellant along with interest at the<\/p>\n
rate of 5% and that amount was accepted by the<\/p>\n
appellant, therefore, it was no longer open to the<\/p>\n
appellant to challenge the Order of Cancellation after<\/p>\n
having accepted the amount.       Although, the said<\/p>\n
amount of Rs.97,944\/- was returned to the GDA<\/p>\n
subsequently, it was further argued that since the<\/p>\n
letter of the GDA dated 10th of February, 1989 was<\/p>\n
only a Reservation Letter which was issued pursuant<\/p>\n
to the    application made    by the    appellant, no<\/p>\n
allotment of any plot was made in favour of the<\/p>\n
appellant on account of failure in the draw of lottery,<\/p>\n
the question of canceling the reservation of a plot<\/p>\n
alleged to have already made in favour of the<\/p>\n
appellant could not arise at all.         Accordingly,<\/p>\n
Mr. Hansaria, learned senior counsel appearing for<\/p>\n
the GDA sought for dismissal of the appeals and<\/p>\n
submitted that the Orders passed by the Commission<\/p>\n
were fully justified.\n<\/p>\n
                                                          9<\/span>\n<\/p>\n
11.   Before we proceed further, it is necessary to<\/p>\n
reproduce some of the relevant clauses from the<\/p>\n
brochure, which should be required for the proper<\/p>\n
appreciation of the controversies involved. Clause 9<\/p>\n
of the Brochure is produced as under :-<\/p>\n
      “9.00 UNSUCCESSFUL APPLICANTS<\/p>\n
      9.10 Those applicants, who have not been
\n      allotted\/reserved plots houses, will be
\n      returned their registration amount without
\n      interest if the period of deposit of such
\n      money with GDA is less than one year.\n<\/p><\/blockquote>\n
      9.20 However, if the period of deposit is
\n      more than one year, 5% simple interest
\n      shall be paid for the entire period of
\n      deposit.\n<\/p><\/blockquote>\n
      9.30 For the purpose of calculation of
\n      period of deposit the month of deposit &
\n      refund shall not be counted. Any period
\n      after the date of start of refund of
\n      registration  amount   of   unsuccessful
\n      applicants, shall not be counted for
\n      purpose of calculation of “period of
\n      deposit”.\n<\/p><\/blockquote>\n
      9.40 The registration amount shall be
\n      refunded to the unsuccessful applicants by
\n      Vijaya Bank 84, Navyug Market Ghaziabad
\n      directly.\n<\/p><\/blockquote>\n
      9.50 The refund of registration amount to
\n      unsuccessful applicant shall be started
\n      after one month of the draw.<\/p><\/blockquote>\n
      9.60 Unsuccessful    applicants should
\n      contact personally or by post only the<\/p>\n
                                                       10<\/span>
\n      Vijaya    Bank    84,  Navyug  Market,
\n      Ghaziabad for refund of registration
\n      amount. They are required to surrender
\n      the original copy of challan from
\n      (Applicant’s copy) duly signed on the
\n      reverse to the Bank.\n<\/p>\n
      9.70 GDA itself does not entertain any
\n      applicants directly for refund of registration
\n      amount.”\n<\/p>\n<\/p>\n
12.   In our view, the Commission was justified in<\/p>\n
rejecting the claim of the appellant.        The plot in<\/p>\n
question was a category of plot (Category D) which<\/p>\n
was only reserved for the appellant but from the<\/p>\n
Clauses, as mentioned above, it would be clear that<\/p>\n
the final allotment was to be made as regards specific<\/p>\n
plots only after the lottery related to such allotment<\/p>\n
was made. It is beyond dispute that in the draw of<\/p>\n
lottery, the appellant was unsuccessful as her name<\/p>\n
did not figure in the same. It could not be disputed<\/p>\n
that `plot reserved’ and a `plot allotted’ are different<\/p>\n
aspects altogether.     A reading of the Clauses, as<\/p>\n
indicated above, would clearly show that a plot was<\/p>\n
reserved for her subject to the final allotment after<\/p>\n
the lottery related to such allotment was made.        It<\/p>\n
                                                            11<\/span>
\nwould be evident that Clause 9.10 of the Brochure of<\/p>\n
the GDA related to the distribution of plots which<\/p>\n
clearly stipulates that the candidates who were not<\/p>\n
allotted any plot, would be entitled to get refund of<\/p>\n
the entire amount deposited with the GDA and also<\/p>\n
the reserved amount with interest at the rate of 5%,<\/p>\n
if such amount was kept with the GDA for less than<\/p>\n
one   year.   Clause    9.50   deals    with   refund    of<\/p>\n
registration amount to unsuccessful applicant which<\/p>\n
would start after one month of the draw. This Clause<\/p>\n
clearly indicates that the refund of registration<\/p>\n
amount to unsuccessful applicant shall start after<\/p>\n
one month of the draw which would clearly show that<\/p>\n
an applicant who is unsuccessful in the draw of lots<\/p>\n
would only be entitled to the refund of registration<\/p>\n
amount    and    such    process   of    refunding      the<\/p>\n
registration amount shall start only after the draw of<\/p>\n
lots are finalized. Therefore, reading the aforesaid<\/p>\n
Clauses in the brochure, it is evident that since the<\/p>\n
appellant was not allotted any plot and only a plot<\/p>\n
was reserved subject to holding of a lottery for the<\/p>\n
specific plots for allotment, the appellant would not<\/p>\n
                                                              12<\/span>
\nacquire any legal right to such plot, only she would<\/p>\n
be entitled to get refund of her amount deposited<\/p>\n
with the GDA.\n<\/p>\n
13.   In view of our discussions made hereinabove<\/p>\n
and a clear reading of the clauses of the Brochure, it<\/p>\n
would be evident that two separate parts of the<\/p>\n
clauses have been indicated in the brochure. The<\/p>\n
first part was with regard to the reservation amount<\/p>\n
and second part was with regard to allotment of plot<\/p>\n
if an applicant was successful in the draw of lots. In<\/p>\n
this connection, the letter issued by the GDA dated<\/p>\n
10th of February, 1989 may be looked into. The<\/p>\n
subject indicated in the said letter to the appellant<\/p>\n
was regarding reservation of Plot-D in Govindpuram:<\/p>\n
then from the letter itself it would also be evident<\/p>\n
that a plot was reserved for the appellant. It would<\/p>\n
also be evident from the said letter that certain<\/p>\n
clauses were inserted by the GDA if an applicant was<\/p>\n
defaulter in payment of the balance amount. In this<\/p>\n
connection, Clause 5 of the letter dated 10th of<\/p>\n
February, 1989 needs reproduction :-<\/p>\n
      “Final cost of the plot shall be determined
\n      after taking into account its specific location in<\/p>\n
                                                           13<\/span>
\n      terms of park-facing, corner, major road facing
\n      etc. for which extra rates are prescribed to be
\n      charged which will be intimated after
\n      allotment of specific plot.”\n<\/p>\n
\nIt was made clear in the said letter that the allotment<\/p>\n
was subject to conditions “Draw for specific Plot<\/p>\n
number shall be held separately”. Therefore, it must<\/p>\n
be inferred that no plot was allotted to the appellant<\/p>\n
since allotment of specific plot could not be made<\/p>\n
because of failure on the part of the appellant to<\/p>\n
succeed in the draw of lots. In our view, a reading of<\/p>\n
this letter dated 10th of February, 1989 and also the<\/p>\n
different   clauses,   as   already   indicated   in   the<\/p>\n
brochure, we have no hesitation in agreeing with the<\/p>\n
Commission that the appellant could not have<\/p>\n
acquired any legal right for allotment of a plot until<\/p>\n
and unless he could be found to be successful in the<\/p>\n
draw of lots. Therefore, in our view, it was an amount<\/p>\n
for reservation of Category-D plot, which by no<\/p>\n
means, would lead to the inference of registration by<\/p>\n
itself guaranteeing the allotment of a specific plot to<\/p>\n
the appellant. In this connection, a decision of this<\/p>\n
Court in Saurabh Prakash vs. DLF Universal Ltd.<\/a><\/p>\n
                                                             14<\/span>
\n[(2007) 1 SCC 228] was cited at the Bar. In our view,<\/p>\n
the said decision of this Court is not applicable to the<\/p>\n
present case. In any view of the matter, in the<\/p>\n
peculiar facts and circumstances of that case, this<\/p>\n
Court also expressed that the said decision shall not<\/p>\n
be treated to be a precedent.\n<\/p>\n
14.   Before the Commission, the GDA, on affidavit,<\/p>\n
      asserted   that   no   plot   was   available   for<\/p>\n
      allotment to the appellant in the Govindpuram<\/p>\n
      Housing Scheme and, therefore, it would be<\/p>\n
      practically impossible to allot any plot, which is<\/p>\n
      not available with GDA for allotment, even if it<\/p>\n
      is held that allotment of plot was made by GDA<\/p>\n
      in favour of the appellant. A decision of this<\/p>\n
      Court in the case of Alok Shanker Pandey vs.<\/p>\n
      Union of India & Ors.<\/a> [(2007) 3 SCC 545] may<\/p>\n
      be referred as it was also cited at the Bar. In<\/p>\n
      that decision it has been clearly held that the<\/p>\n
      amount of interest to be awarded for refund of<\/p>\n
      any amount deposited by the candidate would<\/p>\n
      depend upon the facts and circumstances of<\/p>\n
      each case. Such being the state of affairs, we<\/p>\n
                                                            15<\/span>
\nare of the view that the appellant should be<\/p>\n
allowed to get refund from the GDA the entire<\/p>\n
sum with interest at the rate of18% not at the<\/p>\n
rate of 5% as we find that from the brochure<\/p>\n
itself, it would be clear that in the event, the<\/p>\n
appellant could not deposit the entire amount<\/p>\n
after the allotment is made within certain time,<\/p>\n
18% interest shall be levied on the appellant. It<\/p>\n
is an admitted position that the appellant<\/p>\n
deposited the entire amount as directed by the<\/p>\n
GDA in the year 1989 and the order of<\/p>\n
cancellation of reservation of a plot in favour of<\/p>\n
the appellant was made after more than seven<\/p>\n
years and, therefore, we must hold that the<\/p>\n
respondent was liable to pay interest not at the<\/p>\n
rate of 5% but at the rate of 18%. In the facts of<\/p>\n
the present case, since the GDA had utilized<\/p>\n
the entire amount of the appellant for their own<\/p>\n
purpose till they had refunded the amount to<\/p>\n
the appellant, we confirm the order of the<\/p>\n
Commission holding that there was no “unfair<\/p>\n
trade   practice”,   but   in   the   facts   and<\/p>\n
                                                     16<\/span>
\n        circumstances of the present case, we allow<\/p>\n
        these appeals in part and direct the respondent<\/p>\n
        to refund the money already deposited with the<\/p>\n
        GDA with interest at the rate of 18 per cent and<\/p>\n
        not at the rate of 5%.\n<\/p>\n
15.     Before we conclude, we may also mention that<\/p>\n
the Commission was also justified in rejecting the<\/p>\n
claim of the appellant for allotment of a plot in<\/p>\n
Govindpuram Housing Scheme at Ghaziabad as we<\/p>\n
find the entire amount of refund with 5% interest<\/p>\n
was     initially   accepted     by   the   appellant,       but<\/p>\n
subsequently, as noted herein earlier, she returned<\/p>\n
the like amount to the GDA. Having accepted the<\/p>\n
amount and encashed the same, it is no longer open<\/p>\n
to the appellant to turn around and claim allotment<\/p>\n
of plot from the GDA.\n<\/p>\n
16. For the reasons aforesaid, the appeals are allowed<\/p>\n
      only to the extent indicated above. There will be<\/p>\n
      no order as to costs.\n<\/p>\n<\/p>\n
                                             …………………\n<\/p>\n
                                                         …….J.\n<\/p>\n
                                        [Tarun Chatterjee]<\/p>\n
                                                                     17<\/span>
\nNew Delhi          …………………….J.
\nAugust 29 , 2008   [Harjit Singh Bedi]<\/p>\n
                                                 18<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Manjul Srivastava vs Govt. Of U.P. & Ors on 29 August, 2008 Author: Tarun Chatterjee Bench: Tarun Chatterjee, Harjit Singh Bedi 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-87920","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nManjul Srivastava vs Govt. 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