State Consumer Disputes Redressal Commission
Dda vs Harbarsh Malik on 29 November, 2021
FA NO./1208/2013 DELHI DEVELOPMENT AUTHORITY VS. HARVANSH MALIK D.O.D. : 29.11.2021
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 14.11.2013
Date of hearing: 25.10.2021
Date of Decision: 29.11.2021
FIRST APPEAL NO.- 1208/2013
IN THE MATTER OF
DELHI DEVELOPMENT AUTHORITY
Through Its Director (H-1),
Delhi Development Authority,
Vikas Sadan,
INA,
New Delhi
(Through: Mr. Praduman Kumar Aggarwal, Advocate)
...Appellant
VERSUS
SH. HARVANSH MALIK,
S/O LATE SH. LILA KRISHAN MALIK,
R/O A-6/D-5, Texla Estate,
Shalimar Garden Extention II,
Sahibabad, Ghaziabad (U.P)
...Respondent
DISMISSED PAGE 1 OF 7
FA NO./1208/2013 DELHI DEVELOPMENT AUTHORITY VS. HARVANSH MALIK D.O.D. : 29.11.2021
CORAM:
HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
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
Present: Shri P.K. Aggarwal, Counsel for Appellant.
None for Respondent.
PER: HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
1. The Appellant has filed the present appeal under Section 15 of the Consumer Protection Act, 1986 to set aside the order dated 08.10.2013 passed by the District Consumer Disputes Redressal Forum VII, New Delhi in Complaint Case no. 226 of 2011 filed by Respondent against the Appellant. By the impugned order dated 08.10.2013, the District Forum allowed the complaint filed by the Respondent and ordered the Appellant to allot the flat to the Respondent of similar size in the same or adjoining colony on the prevailing cost within 30 days.
2. The facts of the case necessary for adjudication of this appeal are:
"The OP floated a New Pattern Registration Scheme, 1979 for LIG/MIG flats. The complainant applied for the same by paying requisite deposit and enclosing other required documents. In the application form, the complainant mentioned his residential address as 166, Double storey Quarters, New Rajendra Nagar, New Delhi.
At that time the OP was also allotting flats under different categories on out of turn basis. Smt. Shyam devi malik, the DISMISSED PAGE 2 OF 7 FA NO./1208/2013 DELHI DEVELOPMENT AUTHORITY VS. HARVANSH MALIK D.O.D. : 29.11.2021 mother of the complainant applied for the same. In the column No. 19 of the application, it is mentioned that if the allotment is considered, it is requested for hire purchase basis. The allotment was considered favorably and the same was communicated vide letter dated 30.10.1991. The flat was allotted at Narela, Delhi. The allotment letter dated 25.08.93 was not revealing the mode of payment. The demand letter dated 05.10.93 was sent for cash down basis asking for lump sum payment. The request was made for conversion of allotment into hire purchases basis. The request was treated casually and the file was kept pending.
The complainant was allotted the flat in Peera Garhi, New Delhi in the draw held on 28.3.2001. The allotment letter was sent on the wrong address by OP which was returned undelivered. The complainant came to know that after sending Show Cause Notice on wrong address, the allotment was cancelled. cancellation was also sent on the wrong address. It is stated by the OP that no response has been received from the allottee even after Show Cause Notice, hence the allotment was cancelled and the allottee was asked to apply for refund Such a drastic step of cancellation was casually taken by the OP. The complainant made several representations met Dy. Director, Director, Commissioner, (housing) and also appeared before the Vice Chairman but no result. The complainant sent representation to Lt. Governor and endorsed the copies to the Hon'ble Prime Minister and the Ministry of Urban Development, Govt. Of India, on the representations of the complainant, The Commissioner/Housing) held both D.D.A as well as complainant at fault stating that when the complainant applies for allotment of flat in the name of his mother on OTA basis, he can not claim for another flat as a registrant. However, the DDA is also at fault for not considering his request for change of mode of payment. The case be put up before the competent authority as a special case. Further, there was also a policy of OP namely 'tail-end' priority in DISMISSED PAGE 3 OF 7 FA NO./1208/2013 DELHI DEVELOPMENT AUTHORITY VS. HARVANSH MALIK D.O.D. : 29.11.2021 respect of the allotment which was not considered in the Complainant's case. As such, the OP is at fault to cancel the allotment. The case of the complainant is covered under the wrong address policy applicable to ex-employee of D.D.A. The complainant prayed this Forum to direct the OP to allot a MIG flat at Peera Garhi or alternatively in adjoining area at prevalent cost as on 28.3.2001, the date of allotment along with penalty of Rs. 3.00 lakhs for deficiency in service."
3. The District Forum vide order dated 08.10.2013 has held as under:
"We have observed that the OP has committed serious deficiency and negligence in not considering the request of the allottee for change of mode of payment from cash down to hire purchase and raised the demand as usual. Such demand amounts to the imposition of arbitrariness and misuse of dominant position for the recovery of the consideration on cash down basis. We further hold that the cash down demand and cancellation of allotment on the basis of non payment is unjust, un-ethical, arbitrary and unlawful. Such demand is liable to be quashed. Moreover, it is admitted by the OP in order of the Commissioner (Housing) that the OP was at fault and the action taken by OP was wrong. Further, no action was taken on the recommendation of the Commissioner (Housing) which shows the malafide intention of the OP. Apart from the above, the demand letter and show cause letters were issued to the complainant on the wrong address. It appears that no efforts were made to find out the correct address of the complainant who was an employee of the OP. We presume that the correct residential address of the complainant must be available in the record of the OP. We, further find that there is a serious defect in the working of the OP as admitted in the written statement that after the allotment the Registration No. 78 was not deleted in the computer data and DISMISSED PAGE 4 OF 7 FA NO./1208/2013 DELHI DEVELOPMENT AUTHORITY VS. HARVANSH MALIK D.O.D. : 29.11.2021 inadvertently another allotment of MIG Flat was affected in favour of the complainant. It is a serious mistake on the part of the OP that after the allotment of the flat, the removal of the registration number was not feeded in the system.
In view of the above mentioned discussion, we are of the opinion that the OP was negligent and deficient in service and the complainant is entitled to get the relief. We also examined the relief prayed by the complainant for the direction to allot the MIG flat at the prevalent cost as on 28.03.2001. We do not agree with regard to the relief prayed for prevalent cost on the date of allotment. We are of the opinion that the complainant deserves for allotment of the flat but at the cost prevalent as on date. Therefore, we direct the OP to allot the flat to the of similar size in the same or adjoining colony on the prevailing cost within 30 days. We do not grant any other relief as prayed by the complainant."
4. The Appellant has challenged the aforesaid order on the ground that the district forum mis-read the noting of the Commissioner (Housing), DDA and has not considered the fact that the respondent is also at fault while applying for another flat as a registraint. The counsel for appellant further contended that the complaint of the Respondent was already time barred.
5. It was further contended by the counsel for Appellant that the N.P.R.S. Scheme has been closed long way back and in this regard the advertisement was published in the leading newspaper dated 05.02.2006. Pressing the aforesaid contentions, the Appellant prayed to set aside the order of the District Forum.
6. Notice was issued to the Respondent of the present appeal.
Thereafter, the Respondent has filed his reply to the appeal.
DISMISSED PAGE 5 OF 7 FA NO./1208/2013 DELHI DEVELOPMENT AUTHORITY VS. HARVANSH MALIK D.O.D. : 29.11.2021
7. We have perused the appeal, reply of the respondent, the District Forum record and the impugned order.
8. The first question of consideration before us is whether the learned District Forum had mis-read the noting of the commissioner (housing), D.D.A. To resolve the issue, we deem it appropriate to refer to the noting of the Commissioner Housing (DDA), which reads as under:
"The applicant as well as department both is at fault. When an applicant applied for allotment of the flat in the name of his mother on OTA basis he cannot claim another flat as a registrant. However, the department is also at fault as when the allotee had requested for change of mode of payment, the department did not take proper action."
9. From the aforesaid noting of the Commissioner (Housing), it is clear that the appellant was at fault as it failed to take proper action when the request for change of mode of payment was forwarded by the Respondent. Consequently, we hold that there was deficiency on the part of the Appellant as it failed to respond to the letter moved by the Respondent.
10. The other contentions on the behalf of appellant are not maintainable as the same could be raised before the district forum, which the appellant failed to do. Further there is no evidence which shows that these contentions were not within the knowledge of the appellant before the district forum.
11. The lackadaisical conduct of the Appellant is evident from the fact that even after the respondent being employee of the appellant, it doesn't have the correct address of the respondent. Therefore we DISMISSED PAGE 6 OF 7 FA NO./1208/2013 DELHI DEVELOPMENT AUTHORITY VS. HARVANSH MALIK D.O.D. : 29.11.2021 hold that the Appellant was not justified in repudiating the claim of the Respondent.
12. On the basis of aforesaid discussion, we are in the view that the Learned District Forum was correct in their findings. Therefore, we upheld the Order dated 08.10.2013 passed by the District Forum. Order of the District Forum to be complied before 28.12.2021.
13. Application(s) pending, if any, stands disposed of in terms of the aforesaid judgment.
14. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
15. File be consigned to record room along with a copy of this Judgment.
(DR. JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (ANIL SRIVASTAVA) MEMBER Pronounced On:
29.11.2021 DISMISSED PAGE 7 OF 7