State Consumer Disputes Redressal Commission
Dda vs Gulshan Kr. Gandhi on 11 July, 2017
Daily Order IN THE STATE COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Arguments: 11.07.17 Date of Decision: 13.07.17 First Appeal No. 627/2011 In the matter of: Delhi Development Authority Vikas Sadan, INA New Delhi ...Appellant VERSUS Ms. Gulshan Kumar Gandhi S/o Shri Ganpat Rai Gandhi R/o BE-40, Hari Nagar New Delhi. ...Respondent C ORAM Hon'ble Sh. O.P.Gupta, Member(Judicial) Hon'ble Sh. Anil Srivastava, Member 1.Whether reporters of local newspaper be allowed to see the judgment? Yes 2. To be referred to the reporter or not? Yes SHRI O.P.GUPTA JUDGEMENT
OP has come in the present appeal against order dated 26.07.11 vide which it was directed to allot alternative flat to the complainant at the price prevailing in similar locality at the time of allotment in 1993 or to put his name in the next draw as per choice of the complainant. Further OP was directed to pay Rs. One lakh as compensation and Rs. 10,000/- as cost of litigation.
2. The appellant has complied with part of the order to the extent that it considered him in the next draw held on 11.01.12 and offered him flat No. 1405, Pocket GH-1, Sector 28, Rohini. However, OP demanded Rs. 17,000,74/- which was the price prevailing at the time of draw. The complainant did not accept the same on the plea that he is entitled to allotment at the old price.
3. The facts giving rise to the complaint were that complainant/respondent herein applied/booked LIG flat under new pattern 1979 scheme by depositing Rs. 1500/-. He received notice dated 15.02.95 from the office of income tax through which he came to know that he was allotted LIF flat No.75, A-1 , Sector 16, Rohini at the cost of Rs.3,10,000/-. Plea of the complainant is that he did not receive any intimation regarding the same from the OP/appellant. He sent a letter to OP on 27.03.95 requesting him to issue a demand cum-allotment letter of the said flat. He was informed vide letter dated 18.11.98 that his request could not be acceded to. Allotment of flat in next draw was assured to him. He pursued the request, sent legal notice dated 24.05.06 and sought information under RTI Act on 10.05.07.
4. The appellant filed WS stating that demand-cum-allotment letter was sent at the address of BE-40, Hari Nagar, New Delhi-110064 through regd. Post dated 21.03.94 and was not received back undelivered from postal authority. The complainant failed to deposit the cost of the flat despite issue of notice dated 23.09.94. Allotment was cancelled on account of non-payment of dues and cancellation letter was issued on 01.11.94.
5. Complainant filed rejoinder and affidavit by evidence. OP had filed written arguments and stopped appearing and was proceeded exparte on 09.12.10.
6. After going through the material on record the District Forum found that only dispute was whether due notice of allotment of flat was given to the complainant and his allotment was cancelled after giving notice. Vide noting dated 17.08.10 it was quite evident that OP could not ascertain as to whether letter was sent at the address of BE-40, Hari Nagar, New Delhi-64 or another address 106-D, Kamla Nagar, Delhi. On the said notice it was also mentioned that there was no application for change of address filed by the complainant. Noting suggested that since demand-cum-allotment letter sent to the complainant at wrong address i.e. 106-D, Kamla Nagar, Delhi instead of actual address BE-40, Hari Nagar, Clock Tower, New Delhi-64, the case appears to be covered under wrong address policy dated 25.02.05 and proposed consideration of the case of allotment of LIG flat to complainant under wrong address policy dated 25.02.05 and proposed consideration of the cost of allotment of LIG Flat to complainant under wrong address policy.
7. On the basis of above noting the District Forum concluded that OP admitted its deficiency. Otherwise also failure to serve demand-cum-allotment letter amounted to deficiency in service. Cancellation on the basis of undelivered allotment letter is bad in law as per decision of this Commission in DDA vs. Bansi B.Saha Vol.II (2008) CPJ 190. It also relied upon decision of National Commission in HUDA vs. Jagmohan 1(2008) CPJ 47 wherein failure to produce evidence of delivery of letter, OP was directed to issue regular allotment letter and deliver possession.
8. Now the only controversy is as to whether complainant should get flat at the old price or at the price prevailing at the time of subsequent allotment. Counsel for the appellant submitted that pricing is a policy matter which cannot be consumer dispute. In support of her submission she relied upon the decision of 5 member bench of National Commission in DDA vs. A.N.Sehgal 1 (1996) CPJ 34. After following the earlier decision of National Commission in Gujrat Housing Board vs. Amrit Lal Phool Chand IV (1993) CPJ 351 it was held that question of pricing cannot be gone into by the Consumer Forums since the price of the flat is not fixed by any law and that even after any excess charge has been collected by the way of price that will not constitute ground for contending that there is deficiency in service on the part of the OP. The said decision has been reiterated by National Commission in Gurender Bedi vs. DDA III (1996) CPJ 404.
9. Appellant has placed reliance on yet another decision of 5 member bench of National Commission in DDA vs. Kamini Chopra 1 (1996) CPJ 285 in which it was held that question of pricing cannot be determined by consumer forum.
10. The counsel for appellant also referred to decision of Hon'ble Supreme Court in DDA vs. Pushpender Kumar AIR 1995 Supreme Court 1 where it was held that no indefeasible right is conferred on a person by mere draw of lots unless he makes the payment. In the instant case the appellant did not make payment. He was found to be successful in draw of lots. That is all. Thus he cannot make a grievance that he had a valuable right which has been denied by non-delivery of allotment letter or non-delivery of show cause notice issued before cancellation. The argument appears to be plausible.
11. There is yet another way of looking at the matter. The complainant did not make payment in 1993 when he was found successful in draw of lot. He had been enjoying the money which must have grown many times more. Now he cannot expect the DDA to allot him flat at the old price. If interest is added to the said amount it would come to somewhere near the price now demanded. In 20 years the amount would have grown to 8 times. The demand raised by OP is only 5 times of the original price.
12. For the forgoing reasons the appeal is accepted in part and directions to issue flat at the old price are set aside. The complainant would be given an opportunity to take new flat as per allotment made in December 2012 within one month failing which he would be entitled to refund of his booking amount of Rs. 1500/- alongwith interest @ 7% per annum from date of deposit till the date of refund. Directions to pay compensation and cost of litigation are set aside.
Copy of the order be sent to both the parties free of cost.
One copy of the order be sent to District Forum for information.
(ANIL SRIVASTAVA) (O.P.GUPTA) MEMBER MEMBER(JUDICIAL)