State Consumer Disputes Redressal Commission
Pramod Pal Singh vs Dda on 11 March, 2013
IN THE STATE COMMISSION:DELHI (Constituted under Section 9 of The Consumer Protection Act, 1986) Date of Decision: 11.03.2013 Complaint No . 49 /03 Shri Pramod Pal Singh Complainant S/o Shri Lajinder Singh, C-66, Malviya Nagar, New Delhi-110017. Versus Vice Chairman Opposite Party DDA, Vikas Sadan, New Delhi. CORAM Ms. Salma Noor Member
Mr. V.K. Gupta Member(Judicial)
1. Whether Reporters of local newspapers be allowed to see the judgment? Yes.
2. To be referred to the Reporter or not? Yes.
Mr. V.K. Gupta, Member(Judicial)(Oral)
1. This is a complaint u/s 17 of the Consumer Protection Act, 1986.
2. Briefly stated, factual scenario is, that the complainant was allotted an expandable house by the Opposite Party bearing No. 59 in Pocket 1 of Sector 25 in Rohini Phase III vide allotment letter No. 504(807)/95/EHS/RO dated 15.5.95 to 30.5.95 for a total consideration of Rs. 3,36,840/- to be recovered in six instalments. The complainant paid Rs. 3,98,100/-, details of which are given in para-3 of the complaint. The complainant, in order to enable timely possession, had paid even the excess amount in anticipation of any demand from the OP to be adjusted after reconciliation of the account. He wrote many letters on 12 occasions and also paid many visits to the office of the OP for the refund of the excess amount including the interest but the OP has neither tendered any details nor paid the excess balance. Prior to the allotment, the OP issued the Brochure that the flats are built up and having all basic amenities like water and sewage except electricity in some pockets and further that the complainant can take the possession after payment of the three instalments. These units including the flat allotted to the complainant by the OP are inhabitable due to the lack of basic amenities and despite the fact that the complainant had informed to the OP on 12 occasions with regard to the fact that the units be made habitable but nothing was done.
Even today, all the houses of the pocket-1 are lying unoccupied due to the lack of basis facilities and ruinness of the houses. The OP has obtained all the documents required for possession and further issued the conveyance deed for stamping them in advance. The units despite several requests made by the complainant have not been made habitable so that the complainant may take the possession and the OP is utilizing approximately Rs.4 lacs which were paid by the complainant way back in 1996 and it is more than 17 years that the defects in the houses have not been made clear so that the complainant can take the possession. He claims Rs. 10,000/- p.m. as the loss suffered by him in 1996 which comes to Rs. 79,000/- upto 31.12.02, Rs. 20,000/- as compensation for correspondence, interest @ 24% p.a., Rs. One lac as compensation for harassment and Rs.
5,000/- as the litigation.
3. The OP has filed the written statement and denied the entire allegation. It is contended that according to the clause 16 of the terms and conditions of the allotment, the property shall be delivered as is whereas basis. That the complainant is not a consumer. It is admitted that the complainant was allotted a flat on the basis of the application made by him. The interest is being charged by the OP as per policy mode of the payment and the interest thereon is mentioned in clause 13 of the brochure. Further, clause 4 of the demand-cum-allotment letter also mentions the interest. The complainant was given two options for the payment of the demanded amount i.e. in lumpsum or in the instalment, for which the complainant opted for instalment. The area where the flat is situated is to be electrified by the Delhi Vidyut Board and in fact it is electrified in May, 2001, therefore the OP has no control over the same.
The possession letter has been issued to the complainant on 21.5.03. The release of the brochure of the OP is also admitted. The defects pointed out by the complainant in the flat allotted to him, have already been removed and it is the complainant who has not taken over the possession of the same.
4. The complainant has filed the rejoinder and denied the fresh allegation in the written statement.
5. Both the parties have filed their evidence by way of their affidavit.
6. We have heard Shri Pramod Pal the complainant present in person and Shri P.K. Aggarwal, counsel for DDA.
7. At the outset, the Ld. Counsel for the OP very vehemently submitted that the complainant is not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986 and has relied upon a decision of the Honble Supreme Court reported as UT Chandigarh Administration and Others Vs Amarjeet Singh & Others 2009 CTJ 486(Supreme Court)(CP). We do not agree with the contention of the ld. Counsel for the OP in this respect.
In this case, the Honble Supreme Court has propounded that if there is any dispute with regard to the property which was purchased by a consumer in auction, such person is not a consumer within the meaning of Section 2(1)(d) in the case in hand there is no averment nor any contention has been raised by the flat in dispute was purchased by the complainant in auction nor any papers in this regard has been filed by the OP.
8. It is also submitted by the counsel for the OP that even if there is deficiency in service, such deficiency cannot be compensated in the Consumer Protection Act, 1986 and the reliance has been placed on a decision of the Honble Supreme Court reported as Consumer Unity & Trust Society, Jaipur vs the Chairman & Managing Director, Bank of Baroda, Calcutta & Anr. I(1995) CPJ (SC) In this case, the controversy before Honble Supreme Court was whether a complainant who has claimed compensation on the ground that the customer of the bank was deprived of the service of the Bank but the deficiency did not arise due to strike, it was held by the Honble Supreme Court that such deficiency in service cannot be compensated in the Consumer Protection Act. This is not the case before us, therefore, the law propounded by the Honble Supreme Court in Consumer Unity & Trust Society, Jaipur(Supra) is not applicable to the facts and circumstances before us.
9. A feeable attempt has been by the ld. Counsel for the OP that delay in delivery of the possession resulting a loss to the allottee cannot be compensated as held by the Honble Supreme Court in Bangalore Development Authority vs Syndicate Bank(2007) 6 Supreme Court Cases
711. In this case, the complainant claimed the loss on account of delay in delivery of the possession resulting the payment of the rent. This is not the case before us. Therefore the facts and circumstances before the Supreme Court here are different before us.
10. There is no denying the fact that the allotment is governed by the DDA(Management and Disposal of Housing Estates) Regulations 1968. As per Regulation 2(28), the property circumstances have been defined as nature and conditions of the building premises, the type and nature of construction, specification adopted thereof, material used, and the workmanship, stability or durability of the structure, the type of accommodation, pattern of installation, fittings, fixtures and other amenities and all other such things and constitute the property as they exist in the building for the premises concerned. As per Regulation 19, DDA offers for sale the property on the basis of property circumstances that exist at that time. Para 16 of this brochure further stipulates that the DDA will not entertain any complaints whatsoever regarding property circumstances except as defined in para 19 of the Regulation referred to above or about cost of house, its design, the quality of material used, workmanship or any other defect. In the case in hand, there is no controversy before us in respect of the cost of the house or design or quality of the material used or the workmanship nor any contention has been raised by way of the grievance of the complainant in the flat allotted to him by the OP. The only controversy before us is with regard to the regulation 2(28) of the aforesaid Regulation. What is averred by the complainant in the complaint is that the flat in question is not habitable, inasmuch as the OP has not provided any basic amenities, which is required to be given in the property circumstances as given a mandate in regulation 2(28).
11. The complainant has placed on record the various photographs of the flat in question which shows that it is inhabitable and negatives of the house on various dates on 12.2.03, 26.11.03 and 23.10.04 to show the condition of the inhabitable house. During the course of the hearing, this Commission has directed the OP to remove the defects and make it a unit habitable and consequently hand over the possession in four weeks. Suffice to say that when the complainant went to take the possession of the house for the third time on 26.10.04, he was shocked to find that the site officers of the OP had colluded with the hire purchaser of adjacent house No. 82 sometime after 7.01.04 by first allowing him to carry out massive illegal and unauthorized construction and then by taking no action even after the representation of the complainant which have now resulted in denial of light, air, entry and use of his house. It appears to us that despite the order of this Commission, no heed was paid by the OP and only the irresistible conclusion is that no action was taken by the OP, as it was a deliberate and intentional act of no action. It may also be mentioned that this Commission on 16.07.10 had issued the specific direction that the independent officers of the OP not concerned with this very area inspected the site on 17.7.10. However, the inspection was carried out on 17.07.10 but it is surprising that the independent officers of the concerned area were not taken as per directions of the State Commission.
The report of the Engineers comprising of Executive Engineer, Asstt. Engineer, the Junior Engineer, Asstt. Director of the OP is before us. Once again, we reiterate that the inspection was not done by the independent officers who are not concerned with the OP and patently the orders of the Commission were flouted by the OP. In this report, it is mentioned that at the site, the problems were solved then and there but no mention has been made as to what defect or the problem had been pointed out by the party at that time nor in this report it is mentioned what were the problems. The complainant has protested and made a reference on this report. Obviously, this report is one sided and in connivance with the owners of the flat who have taken the unauthorized possession of the adjoining land. The narration of the events, as hereinabove mentioned, show how helpless is a citizen could suffer even after whole of the price of the premises were made. This was held by the Honble National Commission on 10.04.03 in Delhi Development Authority vs Renu Gaba. It was also held by the Honble Delhi High Court vide order dated 16.03.12 in Writ Petition (C)No. 754 of 2011 that the nature of illegal coverage by the other party has adversely impacted the right to ventilation/air space of the first floors owner on account of the unauthorized construction. Some observations also made by Honble Delhi High Court on 5th September, 2005 in Sewa Hotel and Resorts And Ishu vs DDA. The defects which have been pointed out by the complainant in the flat allotted to him are substantial and cannot be said to be minor or cosmetic. Obviously, by the action of the DDA, the complainant could not take the possession of the flat in question on account of the callous and inapt attitude of the officers of the DDA leading to the complainant to reside in the rented house. The complainant is deprived of possession of the house w.e.f. 1.2.96 and till today, the property in question, has not been made habitable by the callous attitude of the DDA. The complainant has claimed a loss of Rs. 7,10,000/- upto 31.12.02 and thereafter Rs. 10,000/- p.m. interest thereon and also Rs. One lac as compensation for the entire relief, we quantify the amount of damages as compensation for all counts as Rs. Three lacs inclusive of the litigation charges.
12. We hereby direct that the OP shall pay Rs. Three lacs by way of compensation and damages to the complainant within 30 days, and in case this amount is not paid within 30 days, the OP shall pay interest @ 9% p.a. till the date of the realization.
13. A certified copy of this order be sent to the parties free of cost.
(Salma Noor) Member (V.K. Gupta) Member(Judicial) ysc