State Consumer Disputes Redressal Commission
Delhi Development Authority vs Pradeep Gambhir on 10 March, 2014
IN THE STATE COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision: 10.03.2014 First Appeal- 712/10 (Arising out of the order dated 07.08.2010 passed in Complainant Case No. 226/10 passed by District Forum Consumer Disputes Redressal Forum-II, Qutub Institutional Area, Udyog Sadan, New Delhi) In the matter of: Delhi Development Authority INA, Vikas Sadan New Delhi .Appellant Versus 1. Sh. Pradeep Gambhir S/o Sh. Dharambir Gambhir 2. Sh. Sandeep Gambhir S/o Sh. Dharambir Gambhir Both R/op W-115, Greater Kailash-II New Delhi .Respondent 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 JUDGEMENT
1) The present appeal has been filed by the appellant assailing the order of the District Consumer Disputes Redressal Forum-II, Qutub Institutional Area, New Delhi dt.
07.08.2010 passed in Complaint Case No. 226/2010, whereby District Forum has directed the appellant to restore the lease of property bearing Plot No. 26, Motia Khan Dump Scheme New Delhi, in the name of the complainant/respondent-1 and quashed the cancellation order dt. 14.10.1982 and District Forum, further directed the appellant to pay Rs. 20,000/- as compensation for mental agony, harassment and sheer suffering inclusive of litigation charges.
2) The brief facts of the case are that the respondent/complainant have filed a complaint before the District Forum submitting therein that Sh. Yog Raj and Sh. Anant Ram were allotted plot No. 26, Motia Khan Dump Scheme New Delhi by the DDA and the lease deed was executed on 17.03.1973 in their favour by DDA. The said plot was subsequently sold by the allottees to Sh. Janak Raj who paid unearned increase to DDA for getting the lease hold rights in his name to transfer the plot.
3) It has been further averred in the complaint filed before the District Forum that Sh. Janak Raj executed registered will alongwith GPA and SPA dt. 26.12.1986 thereby bequeathed the plot in favour of the respondents/complainants, it was further averred in the complaint that after the death of Sh. Janak Raj respondent/complainant got the will probated and letter of administration was granted in favour of the respondent/complainant in probated case No. 329/1988 vide judgment dt. 28.11.1981 of the Civil Court. It is further averred that the appellant/OP cancelled the lease deed of the plot on 14.10.1982 and initiated eviction proceedings before the state officer and respondent/complainant appeared before the state officer to defend their position over the plot and the respondent/complainant defended before the state officer DDA with respect to eviction from the said property and complainant/respondent stated that, it was during the proceeding before the state officer that, he came to know about the cancellation of lease deed of the property on 14.10.1982 without any intimation and notice to the complainant. The complainant/respondent contacted the OP and gave representation for restoration of lease deed and officials of the appellant/OP assured the complainant/respondent that the matter with regard to the restoration of the lease deed is under process but on 05.01.2009, it was informed to the complainant that the request for restoration of the lease deed could not be acceded. The complainant/respondent wrote many letters, but the lease deed was not restored in respect of the leased property and the respondent/complainant filed the complaint before the District Forum.
4) The appellant/OP filed reply before the District Forum, wherein he took the objection that the complaint is barred by limitation as the lease deed of the plot was cancelled by them on 14.10.1982 and the complaint has been filed on 12.04.2010. It was further averred in the reply filed by the appellant/OP that Consumer Forum has no jurisdiction to entertain the complaint, as there is no relation of Consumer and Service provider between the appellant/OP and respondents/complainants as the plot was allotted for factory/shop and lease deed was cancelled because on inspection of the premises, Sh. Janakraj was found to be misusing the shop as the Mezzanine and first floor on the shop were being used as Godown thereby violating the terms and conditions of the lease deed. The OP/appellant averred in their reply filed before the District Forum that show caused notice dt. 20.08.1981 and 14.06.1982 were duly served upon Sh. Janak Raj, but no reply was received nor Sh. Janak Raj stopped misuse of the plot and as a result they cancelled the lease deed of the plot on 14.10.1982 and notice of cancellation was served upon Sh. Janak Raj vide letter dt. 29.10.1982. Appellant/OP further stated that on cancellation of the lease, request was made to them by the allottee for restoration of the lease but the same could not be restored as there was violation of building by laws which were non compoundable as such status of Sh. Janak Raj became that of an illegal occupant and they were liable to be evicted.
5) The appellant/OP initiated proceedings under Public Premises Act and an order of eviction was passed on 11.06.2001. Later on vide letter dt. 05.02.1987 request was made to them for grant of sell permission on the basis of agreement to sell and registered Will dt. 26.12.1986 executed by Sh. Janak Raj in favour of the respondents/complainants. Respondent/complainant replied to letter dt. 05.02.1987 vide their reply letter dt. 09.10.1997 and informed that, as the lease deed stands cancelled, as such there is no question of restoration of the lease and when already allotment of the plot has been cancelled, no right and title was left with Sh. Janak Raj to execute the agreement to sell or execute a will in respect of the plot in favour of the respondent/complainant.
But inspite of the various ground taken by the appellant/OP, the District Forum allowed the complaint of the complainants/respondents and passed the order in favour of the complainants/respondents as stated earlier in Para 1.
6) That is what brought the appellant/OP in appeal before this Commission.
7) Registered notice under AD cover was send to the respondent who appeared and contested their case.
8) The appellant assailed the order of the District Forum mainly on the following grounds:-
The appellant stated in the appeal that the District Forum has erred in allowing the complaint which was barred by limitation and the second ground of the appeal by the appellant is that the District Forum has erred in entertaining the complaint under summary proceedings, in which the complicated disputed questions of facts pertaining to cancellation of the lease on account of misuse of plot and violation of building bylaws was involved and third ground raised by the appellant is that the District Forum was not within their powers to set aside the eviction order passed by the Estate Officer DDA appointed under the Public Premises (eviction of unauthorised occupants) Act 1971.
9) Arguments of both the parties on the above mentioned issues raised by the appellant heard in detail. The lease deed of the plot was cancelled by DDA on 14.10.1982 and thereafter eviction proceedings were initiated by DDA, eviction order was passed on 11.06.2001 by Estate Officer DDA. From the documents placed on record as well as from the letter dt.
21.05.2001 which was addressed to the respondents by Estate Officer and respondents had appeared in the proceedings before the Estate officer, as such it was in the knowledge of the respondents that the lease deed of the plot has been cancelled and eviction proceedings are under way, therefore, respondent should have filed the complaint under Consumer Protection Act within a two years from the date of knowledge of eviction proceedings.
10) The plot was cancelled in 1982 and the agreement to sale and Will in respect of the plot was executed by Janak Raj in favour of the respondent on 26.12.1986 i.e. after the cancellation of the lease deed by the DDA, as such after the cancellation of the lease deed Sh. Janakraj was left with no right title or interest in the plot and therefore, he could not transfer any right in plot to the respondents and respondents were not legally competent to file consumer complaint before the District Forum.
11) The complaint if at all could be filed before the District Forum either by Sh. Janak Raj or by his LRs after enactment of Consumer Protection Act 1986. No plausible or tenable reason has been assigned by the respondent in the complaint in seeking condonation of delay in filing complaint before the District Forum. Further, in the present case neither DDA rendered any service to the respondent nor respondent availed any service from the DDA, therefore, there was no relationship of consumer and service provider between the appellant and the respondent. In the circumstances, the District Forum erred in holding that as DDA informed to the respondent of cancellation of the lease deed vide their letter dt.
05.01.2009 as such cause of action has accrued on 05.01.2009. And as such the complaint was within the period of limitation. The said reasoning is erroneous and contrary to record as lease deed of the plot was cancelled in 1982 and eviction proceedings were initiated by DDA against the occupants of the plot and respondents were participating in the proceedings and simply writing the letters to DDA for restoration of the lease deed and reply of DDA in refusing to restore lease deed again cannot enlarge time for filing consumer complaint the respondent had also filed an appeal before ADJ Delhi against the eviction order passed by the Estate Officer DDA and Honble ADJ in appeal No. M.No. 94/06 vide their judgment dt. 18.08.2007 had maintained the eviction order passed by the Estate Officer and had dismissed the appeal of respondents/complainants and as such the complaint of the respondents was grossly barred by time and was not maintainable.
12) As to the other issues, the DDA has cancelled the lease deed of the plot on account of misusing of the property as well as violations of building by laws in which show cause notice were also served on Sh. Janak Raj but no reply was received and the question that whether the plot had been misused or there has been violations of the building byelaws by Sh. Janak Raj, the same could not be adjudicated under the summary procedure as the same are disputed question of fact which can be adjudicated and decided by the civil court.
Further the plot was allotted for the purpose of factory/shop i.e. for commercial purpose and was also leted out on rent as such the complaint itself was not maintainable as beyond the purview of Consumer Protection Act because nowhere it was pleaded that the commercial use of the plot was only to earn livelihood. Respondents cannot make consumer foras as civil courts where rights and title of the parties are decided on the basis of evidence (both oral and documentary)and dispute with respect to title, ownership, possession could not be decided by the consumer foras. As to another issue whether the respondent are the owners of the plot even after cancellation of the lease by the DDA-it is a material question which has to be decided through civil proceedings and consumer foras could not give any finding on the aforesaid aspect. The only remedy available to the respondent was to file a suit for declaration thereby challenging the cancellation of lease deed and further declaring themselves as the owners of the plot but respondents failed to avail the legal remedies and in order to overcome question of limitation as well as their title they preferred to file consumer complaint which on the face of it is not maintainable.
13) As to the other ground raised by the appellant that the District Foras are not within their powers to set aside eviction order passed by the Estate officer appointed under the provision of Public Premises (Eviction of Unauthorised Occupants Act 1971). The Estate officer appointed under the provision of the Public Premises (Eviction of Unauthorised Occupants) Act 1971 which is a statutory act and Estate Officer hold the statutory post. Premises which falls under the definition of Public Premises (Eviction of Unauthorised Occupants) Act 1971, eviction proceedings can be initiated only before the Estate Officer and not before the civil court and consumer foras are constituted under the provision of Consumer Protection Act 1986 and as per Section 3 of the Consumer Protection Act the remedy available under the consumer protection act is in addition to and not in derogation of any other law, meaning thereby, even if consumer is having remedy available under any other Act, he can file complaint under the provision of the consumer protection act 1986, but the consumer foras under the Act are not vested with the powers to either declare proceedings obtaining before the Estate Officer as null and void or cancellation of lease of a plot on account of misuse or violation of building byelaws as void, as the same are the functions of civil courts and consumer foras cannot over take or perform functions of civil court. Therefore District Forum grossly erred by not adjudicating the issue whether violations of the lease deed by the allottee can be adjudicated by the consumer fora or not and proceedings of eviction pending before the Estate Officer can be interfered by the consumer fora and relying solely on the order of probate by the Consumer Forum and allowing the complaint of the complainant/respondent is illegal.
14) In view of the above discussions and findings, appeal of the appellant is allowed and the order of the District Forum II, Qutub Institutional Area, Udyog Sadan, New Delhi dt. 07.08.2010 passed in Complaint Case No. 226/2010 is set aside and quashed. Complaint is accordingly stands dismissed. No order as to cost.
15) Copy of the order be send to the parties as per law and case file be consigned to record room.
16) FDR if any deposited by the appellant be released as per rules.
Announced on this 10th March, 2014.
(S.A.Siddiqui) Member (Judicial) (S.C.Jain) Member Fatima