State Consumer Disputes Redressal Commission
Shankar Lal Arora vs Delhi State Industrial Development on 28 April, 2014
IN THE STATE COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision : 28.04.2014 Complaint Case No.388/2013 Shankar Lal Arora Proprietor Arora Traders 37, Sri Nagar Colony, Bharat Nagar, Delhi Complainant VERSUS Delhi State Industrial Development Corporation Ltd. Through Its Manager (RLO) Plot No. 419, Functional Industrial Estate Udyog Sadan, Patpargaj, Delhi-110092 ..Opposite Party CORAM S.A.Siddiqui, Member (Judicial) S.C.Jain, Member
1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?
S.C.Jain , Member Judgment
1) The present complaint has been filed by the complainant under Section 17 of the Consumer Protection Act 1986. The facts of the case are that the Complainants father Late Sh. Jindu Ram Arora was running a small scale unit in the name and style of M/s Arora Traders for his and his family livelihood Government of NCR Delhi brought a policy according to which industries based in Delhi were ordered to the relocated from residential areas to newly developed industrial areas and the opposite party proposed to allot plots to industrial units under relocation scheme.
2) The complainants late father vide application No. 29626 applied for plot under relocation scheme with the opposite party and the opposite party allotted a plot bearing No. 52, Pocket D, Sector 4, Bawana Industrial Complex admeasuring 250 Sq.mt@ Rs. 4200/- per Sq. Mt. costing Rs. 10,50,000/- vide allotment letter dt. 23.10.2000.
3) The complainants late father deposited Rs. 2,14,500/- with opposite party against the allotment of the above said plot. On 19.01.2001, late father of complainant requested the opposite party for extension of time for payment of balance amount as he suffered angina pain and was admitted in Jaipur Golden Hospital. The father of the complainant after a prolonged illness expired on 31.01.2002 leaving four sons and a daughter behind him and as the whole affairs were managed by the late father of the complainant, neither of the family members knew about the allotment of the said plot by the opposite party and at the time of death of the father, the complainant was not in a position to look after the affairs of the late father but gradually started to manage the affairs of the family business alongwith his brothers.
4) The complainant in the year 2008 while going through the bundle of files came to know that a plot was allotted to the late father and substantial amount was paid to the opposite party in respect of the said plot under relocation scheme. Thereupon all the legal heirs of Late Sh. Jindu Ram Arora relinquished their share in the plot in the name of the complainant. The complainant immediately wrote a letter, which was duly received by opposite party on 29.05.2008, requesting the opposite party to hand over the physical possession of the said plot, as the complainant is ready to pay the balance cost with interest till date and also mentioned in the letter specifically the reasons for not making the payment of the balance cost. But when no reply was received from the opposite party, the complainant on 28.07.2008 again sent a letter to the opposite party showing his willingness to pay the balance cost and other charges.
5) On 29.03.2008 the opposite party sent a letter asking the complainant to provide certain documents which are necessary in the process of change of constitution of firm and mutation of the said plot in the name of the complainant and in pursuance of the above letter the complainant on 07.07.2009 submitted the documents as required by the OP for mutation of the said plot in his name and till then no letter of cancellation of allotment of plot in question was ever received by the complainant. The complainant further states that when nothing was heard from the OP the complainant again on 03.08.2009 sent a letter requesting the OP to get completed all the formalities and hand over the possession of the said plot as the complainant is ready to pay the balance cost alongwith interest but he was shocked to receive a letter dt. 17.09.2009 from the OP, arbitrarily an illegally cancelling the allotment of the plot on the ground that 50% of the payment i.e. Rs. 5,25,000/- has not been deposited by the complainant and further mentioned that the OP while issuing the cancellation letter failed to appreciate that a sum of Rs. 2,14,500/- had already been deposited and the complainant was regularly requesting the OP to receive the balance cost of the plot, which was not accepted on the pretext that the documentation has not been completed.
6) The complainant on 05.10.2009 immediately wrote a letter to the OP stating that the cancellation of allotment is unwarranted as no demand of the payment was made to the complainant by the OP despite the fact that numerous letters sent by the complainant showing his eagerness to pay the balance amount. The complainant visited the office of the OP and requested the officials of the OP to withdraw the cancellation letter. The officials of the OP gave an assurance that they will consider the request of the complainant and assured the complainant that the said plot will not be allotted to any other person and the OP categorically informed and assured to him that they would recall and withdraw the cancellation letter as the same has been issued in a mechanical manner without taking into consideration the communications issued by the legal heirs of the original allottee.
7) The complainant was assured that since the documentation has been completed, the legal heirs of the original allottee will be required to pay interest on the delayed payment and the plot allotted to the original allottee will be restored in the name of the complainant. The complainant was further informed that the computation of the interest on delayed payment and other administrative charges will be calculated and communicated to the complainant in due course and in the event, the complainant deposits the said amount, within the time period, the letter for cancellation of the plot would automatically stand recalled and the allotment would be regularized. It was in this background that the complainant did not initiate any legal action at the relevant point of time and was awaiting the communication to be received from the OP as mentioned above.
8) The complainant further states that when nothing was heard from the OP, he again wrote letters dt. 08.03.2010 and 11.01.2011 making a request to handover possession of the said plot after taking required payment. The complainant regularly went on visiting the office of the OP and each time the officials of the OP stated that the request of the complainant is under consideration and reiterated the stand that the said plot will not be allotted to any other person till some final decision is taken on the request of the complainant.
9) The complainant again wrote a letter dt. 18.04.2012 to the OP requesting for handing over the possession of the plot after taking the balance payment with interest but the OP not bothered to reply either this letter or his previous letters. The complainant on 25.10.2012 again visited the office of the OP and met the manager (RL) with a similar request but the complainant received no response from the OP. The complainant on 30.04.2013 again wrote a letter to the OP giving reference to previous letters and repeating the similar request but again the OP despite receiving the letter did not bothered to reply the same which itself amounts to deficiency of service on the part of OP and complainant ultimately filed the present complaint before this Commission, praying therein to direct the OP to handover the possession of the plot as agreed after accepting the balance consideration amount.; or in alternative to allot a plot of similar size or of larger size at the same price as agreed after accepting the balance consideration amount.; and further to direct the OP to pay an amount of Rs. 15,00,000/- as compensation to the complainant for harassment and mental agony; and further prayed to direct OP to pay to the complainant an amount of Rs. 1,00,000/- as litigation and miscellaneous expenses.
10) Registered AD notice was sent to OP who appeared and contested their case. Both the parties filed their evidence by way of affidavit as well as both filed written arguments and led oral arguments. File perused.
11) During the pendency of the present complaint the complainant received a letter dt. 30.07.2013 stating that as the complainant failed to make payment till the extended date i.e. 30.06.2013 therefore the allotment is cancelled and alongwith this an alleged letter of cancellation dt.
24.08.2009 was enclosed. The complainant alongwith his rejoinder placed the letter on record with this Commission. It is pertinent to submit here that as per the version of the complainant he never received the letter dt. 24.08.2009 from OP.
12) The OP filed written statement raising the objections that complainant is not a consumer and cancellation of allotment was done on the ground that complainant failed to deposit 50% of the cost within cut-off date i.e. upto 31.03.2001 and complaint is beyond the period of limitation.
13) After going through the records and submissions made by the parties the plea taken by the OP that complainant is not a consumer cannot be sustained as much as the father of the complainant was running a small scale unit for his and his family livelihood which is admitted by the OP in its written statement. The OP came out with relocation scheme as the industries are ordered to be relocated by the Honble Supreme Court, the father of complainant paid a substantial amount for the plot and further promise to pay the balance amount to the OP which squarely covers the requisite to be a consumer as per Section 2(1)(d) explanation provided in Consumer Protection Act 1986. It is pertinent to mention here that it is of no concern whether the OPs scheme as alleged is no profit-no loss scheme. The five judge bench of Honble National Commission in a case of Haryan Urban Development Authority Vs Darsh Kumar (Revision Petition No. 1197 of 1998 decided on 31.08.2001) rejected the contention of HUDA and GDA that they work on no-profit-no-loss basis and therefore the Consumer Court does not have jurisdiction. It is also well settled that the public authorities rendering services under different enactments are covered under the Jurisdiction of the Consumer Protection Act, after the judgment of the Honble Supreme Court in Lucknow Development Authority Vs M.K.Gupta (1986-95 Consumer 278).
14) The second objection of the OP that the cancellation of allotment was done on the ground that complainant failed to deposit 50% of the cost within cut-off date i.e. 31.03.2001, but we observe that in the allotment letter dt. 23.10.200, there was no mention that if the allotee fail to pay 50% of the revised estimated cost of the plot after adjustment of earnest money upto the stipulated date i.e. 31.03.2001, his allotment will be cancelled. Therefore, it is clear that time is not the essence of allotment and if there is any delay in making the payment that can be compensated in terms of interest which complainant has agreed to pay. The above submission also finds its support from Section 55 of Contract Act whereby it is enacted that if parties to a contract do not intend to make time as essence of contact promisee is entitled to claim compensation for any loss caused to him as a result of delay. If there had been an intention of the opposite party to make time as essence of allotment then the word interest on delayed payment would not have been mentioned in the allotment letter.
15) The contention of opposite party is that the Honble Supreme Court in the proceeding held on 24.01.2001 in M.C. Mehtas case in IAs No. 1330-1385 in Writ Petition No. 4677 of 1985 passed the following directions .After hearing learned counsels for the parties, time for depositing the payment for the alternative allotment of plot is extended by 31.03.2001. The effect of this would be that no cancellation will be effective or made on account of non-payment of money till 31.03.2001. The IAs are allowed in the aforesaid terms, therefore the cut-off date for payment was 31.03.2001. It is submitted that the above direction of Honble Supreme Court was in regard to those who have not made any payment (complainants father paid 2,14,500/-) and the direction of Honble Supreme Court was not universally applicable to all the attotees. It is also submitted that the date 31.03.2001 is mentioned in the allotment letter was in respect of closure of existing unit and not for payment of 50% of the cost of the Plot as alleged by the opposite party.
16) It is also the contention of the opposite party that on 26.01.2001 the information was widely published in Hindi and English newspapers that the Honble Supreme Court had extended the time for deposit of initial 50% payment till 31.03.2001 and failure to make payment on stipulated date will face cancellation of their allotment and no further correspondence in this regard will be made. It is submitted that no letter was ever issued by the opposite party regarding the cancellation of allotment before letter dt. 17.09.2009 and publication in the newspaper cannot be taken as due information of cancellation of allotment for the following reasons:
(i) Section 123 of Limitation Act itself state that any service by way of publication shall not be deemed to be due service for the purpose of one having the knowledge. In the present case the OP claim that due information was made through publication therefore the same cannot be considered as knowledge of cut-off date of deposit or cancellation of allotment.
(ii) The counsel for complainant stated during the course of arguments that the father of complainant only know one language i.e. Urdu and therefore alleged publication in English and Hindi newspaper cannot be deemed to be proper convey of knowledge of cut-off date and cancellation due to delay in payment.
17) Further during the communication between the complainant and OP, during May 2008 to August 2009, the OP, never mentioned that the allotment was cancelled due to non-payment within cut-off date and the letter of cancellation was only issued on 17.09.2009. The third contention of the OP is that the present compliant is beyond limitation as specified in the Consumer Protection Act, but there was no communication from the side of OP after the letter dt. 17.01.2001 sent by the late father of the complainant seeking extension of time for making the instalments. The complainant after the death of his father as stated in the brief facts, wrote a letter which was received by the OP on 29.05.2008, fresh communication between the parties started and OP in its letter dt. 26.12.2008 and 29.03.2009 nowhere mentioned that the allotment had been cancelled way back in the year 2001. The cancellation of allotment was intimated for the first time by way of letter dt.
17.09.2009 and thereafter the complainant by writing various letters and visiting the office of the OP regularly requested for possession of plot so allotted as the substantial amount was still with the OP and therefore the cause of action is in continuation and the compliant is within limitation as prescribed under Consumer Protection Act.
The Honble Delhi High Court in its recent judgment dt. 23.01.2013 in the case of Smt. Omwati & Ors. Vs Govt. of NCT of Delhi & Anr. (WP(C) 4593 of 2012) directed the DSIDC (i.e. OP herein) to handover the possession of the plot No. 152 Pocket-L, Sector-5, Bawana Industrial Complex, Delhi to the Petitioner, whereby the DSIDC issued cancellation letter after 7 years. That the OP in its written statement/reply admitted the receiving of the letters of the complainant and even there is no specific denial of the averments of the contents of letter therefore the same is an admission on the part of the OP.
18) During the pendency of the present complaint the complainant received a letter dt. 30.07.2013 stating that as the complainant failed to make payment till the extended date i.e. 30.06.2013 therefore the allotment is cancelled and alongwith this an alleged letter of cancellation dt. 24.08.2009 was enclosed. The complainant alongwith his rejoinder placed the letter on record of this Commission. It is pertinent here that the complainant never received the letter dt. 24.08.2009. The OP in replication to the rejoinder stated that due to typographical error the date i.e. 30.06.2013 was mentioned in the letter and alleged corrigendum issued to this effect (Annexure D of replication) but there is no alleged corrigendum is on record of this Honble Commission which itself goes to the root that the OP when exposed is trying to mislead the Commission on the pretext of typographical error and filling of corrigendum. The OP state that the cut-off date mentioned in the letter dt. 30.07.2013 is due to typographical error but OP has not placed on record any file nothing to prove that the date mentioned in the said letter is a typographical error and mere stating that it is typographical error cannot be accepted in absence of any evidence on record. Even for sake of arguments if it is accepted that the date 30.06.2013 is mentioned due to typographical error then how such typographical error occurred thrice in the letter and that too not only the date or month or year is wrong but the complete date. The Honble Delhi High Court in the case of Smt. Omwati (Supra) held that DSIDC has waived its rights by demanding the payment after alleged cut-off date i.e. 31.03.2001, whereas in the instant case the DSIDC during the pendency of the complaint sent a letter dt. 30.07.2013 stating that as the complainant failed to deposit 50% of the cost by last date extended up to 30.06.2013 therefore nullifying its own stand.
19) Accordingly, the arbitrary action of the OP, cancelling the allotment of the said plot despite the fact that the complainant from day one showing his willingness to make the payment and continuously made request to the OP to handover the possession of the said plot, such acts of OP amounts to unfair trade practice and deficiency of service more particularly, when the complainant is ready to deposit the entire dues of the OP with interest.
20) We accordingly orders OP to handover the possession of the plot bearing No. 52, Pocket D, Sector-4, Bawana Industrial Complex admeasuring 250 Sq. Mt. after accepting balance payment calculated @ Rs. 4200/- per Sq. Mt. with applicable interest from 31.03.2001 till payment alongwith other charges if any and this amount shall be paid by the complainant within 30 days of issuing the demand letter by OP alternatively if the same plot is not available then OP shall allot another plot of the same size in the same industrial complex as per other directions given above.
21) No order as to cost & compensation.
22) The above orders shall be complied with by the OP within 30 days from the receipt of these orders.
23) If OP fails to comply the above orders the complainant shall be at liberty to approach this Commission u/s 25/27 of Consumer Protection Act 1986.
24) The above orders be made available to the parties free of cost as per law and case file be consigned to record room.
Announced on this 28th April, 2014.
(S.A.Siddiqui) Member (Judicial) (S.C.Jain) Member Fatima 28.04.2014 C-388/2013 Shankar Lal Arora VS Delhi State Industrial Development Corporation Ltd.
Order announced separately. Complaint allowed. Copy of the order be supplied to the parties free of cost as per law and case file be consigned to record room.
(S.A.Siddiqui) Member (Judicial) (S.C.Jain) Member Fatima