National Consumer Disputes Redressal
Delhi Urban Shelter Improvement Board vs Desh Raj on 20 September, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2208 OF 2016 (Against the Order dated 21/04/2016 in Appeal No. 352/2010 of the State Commission Delhi) 1. DELHI URBAN SHELTER IMPROVEMENT BOARD ROOM NO. 8, PUNARVAS BHAVAN, I.P. ESTATE, NEW DELHI-110002 2. . . 3. . . 4. . . 5. . . 6. .. . ...........Petitioner(s) Versus 1. DESH RAJ S/O. SH. GAJRAJ, R/O. F-2/646,SUNDAR NAGARI, DELHI 2. ANJU SHAMRA . 3. GULSHAN TAKYAR . 4. BHOLA RAM@ARYAN BHOLAKRISHNOO . 5. SAROJINI JAIN . 6. MOHD. ALIM . ...........Respondent(s)
BEFORE: HON'BLE MR. SUBHASH CHANDRA,PRESIDING MEMBER
For the Petitioner : NEMO For the Respondent : IN PERSON
Dated : 20 Sep 2022 ORDER
PER MR SUBHASH CHANDRA, PRESIDING MEMBER
This review petition filed under section 21(b) of the Consumer Protection Act, 1986 (in short, the 'Act') assails the order of the State Consumer Dispute Redressal Commission, Delhi (in short, 'State Commission') in First Appeal No. 352 of 2010 dated 21.04.2016 setting aside the order of the District Forum (Central), Delhi (in short, 'District Forum') dated 12.04.2010 directing the petitioner to refund the amount of Rs 3,000/- with 18% interest per annum from 27.12.1985 along with compensation of Rs.20,00,000/- to the respondent for harassment and mental agony, to deposit Rs.50,00,000/- in the Consumer Welfare Fund and pay Rs.1,00,000/- towards litigation costs to the respondent.
2. The brief facts of the case are that the Delhi Urban Shelter Improvement Board (DUSIB), a statutory body of the State government under the Delhi Urban Shelter Improvement Board Act, 2010 launched a Residential Flats Registration Scheme for slum dwellers and others in 1985 through the Delhi Development Authority (DDA). The period of registration was from 21.11.1985 to 30.12.1985 and was intended for residents with a food card of areas notified as slums under the Slum Areas (Improvement and Clearance) Act, 1985, jhuggi jhopries, slum rehabilitation colonies, JJ resettlement colonies and unauthorized colonies in urban villages in Delhi. The initial deposit fixed was Rs.3,000/- and 27,693 applications were received by DDA.
3. As the respondent was not allotted a flat, he filed a complaint before the District Consumer Forum, Kashmere Gate, Delhi (Complaint No. 541 of 2008) stating that he had applied under the said scheme on 27.12.1985 but had subsequently withdrawn the amount on 14.09.1987 and was refunded Rs 3,385/- with interest @ 7%. However, he was asked by the authorities to re-apply and accordingly he had deposited Rs.3,385/- on 20.02.1988 again. As no flat had been allotted to him, the respondent prayed for allotment of a flat along with damages of Rs.50,000/- and costs of Rs.10,000/-. This complaint was contested by the petitioner herein on grounds that the Priority No. of the respondent was 12929 under General category and that only Priority No. 2650 had been reached under the scheme. The complaint was dismissed by the District Forum on the ground that there was no time frame fixed for the scheme and therefore no violation of the scheme was attributable to the petitioner. No deficiency was also alleged as Priority Number had not been violated.
4. The respondent challenged this order before the State Commission in First Appeal No. 352 of 2010. Vide order dated 21.4.2016, the State Commission set aside the order of the District Forum on the ground that as no flat had been allotted despite 30 years having passed since the scheme was launched, deficiency was well established. It also concluded insensitivity and negligence on part of the petitioner herein and ordered as under:
7. The only controversy before me is that as to whether the shelter board is 'deficient in service' in not allotting the flat to the complainant in a span of thirty years. Complainant admittedly deposited an amount of Rs.3000/- on 27.12.1985. Perusal of the brochure of the scheme 1985 floated by the shelter board shows that it had promised to allot singly storyed houses which were fully ventilated and fitted with all the facilities. It was specifically mentioned that houses would be allotted without loss of much time (paragraph 2 of the scheme 1985, Hindi version). Clearly a period thirty years has elapsed. In its written arguments, shelter board stated that it has so far allotted flats upto the priority number 2650/G. Priority number of the complainant is 12929/G. In a period of thirty years, shelter board has allotted flats only to 2650 persons. At this pace, the complainant shall have to wait for 150 years. Can it still be terms as, 'no deficiency of service'?
8. It is a matter of common knowledge that the amount of Rs.3000/- had a great value in the year 1985. It used to be the pay of a Joint Secretary in Government of India. The complainant undoubtedly belongs to the lowest strata of the society. One can imagine the value of the amount of Rs.3000/- for such a poor person in the year 1985. At the cost of repetition, it may be mentioned here that the shelter board promised to allot the house without loss of much time, as per scheme 1985. Priority number of the complainant is 12929/G. It has not come on record as to how many applicants in all are in the waiting list. Those who applied for the allotment of the house at the age of 60 years, have now reached the age of 90 years. Nobody knows as to how many applicants are alive as on date and how many died waiting for a rood on their heads. This is a case of gross negligence and insensitivity on the part of the OPs who were in a highly dominant position when compared to the applicants. Applicants hardly had the capacity to hire the services of the advocates. They are not literate enough to approach the Consumer Fora and litigate on their own. Statistics have revealed that only 0.3% of the aggrieved consumers come to the courts of law for redressal of their grievances. This Commission however, stays its hands in making comments against the functioning of the shelter board or the Government of NCT of Delhi.
9. In view of the reasons given above, appeal is allowed. Orders dated 12.04.2010 passed by the District Forum, Central (Kashmere Gate) Delhi are set aside. I, therefore, direct the shelter board to pay to the complainant as under:
(a) to refund the amount of Rs.3000/- along with interest @ 18% per annum with effect from 27.12.1985 till the date of realization;
(b) to pay a compensation to the tune of Rs.20,00,000/- to the complainant for causing harassment, inconvenience, sadness, anguish and mental agony in a span of thirty years;
(c ) Shelter Board is directed to deposit an amount of Rs.50,00,000/- in Consumer Welfare Fund of the State maintained by this Commission, for other applicants who have not been allotted flats so far in terms of the scheme 1985 and have not come to the Consumer Fora;
(d) Shelter board is directed to pay litigation charges of Rs.1,00,000/- to the complainant.
5. It is this order that the petitioner has impugned before this Commission. He has submitted that the impugned order is unsustainable and suffers from jurisdictional infirmities. It is submitted that the State Commission erred in referring to a Brochure which was not related to the scheme but instead referred to a subsequent circular of the DDA in another context, i.e. calling of applications for 26 sq m plots under a Group Housing Cooperative Society with the option to either continue in the old scheme or to opt for this scheme, mentioning clearly in para 4 that registrants could continue to wait for flats under the old scheme. However, this new scheme could not be implemented. As the original scheme was open ended, there can be no deficiency on grounds of delay. The respondent did not choose to exercise his option to withdraw from the scheme either. Delay was due to lack of financial support under Plan funds from DDA and the inability to mobilize adequate funds. 7570 flats were constructed between 1980-87 and 3222 between 1988-90. Between 1982-87 flats were allotted by way of computerized draw of lots. 2760 registrants also withdrew from the scheme and were refunded the booking amount with 7% interest. Under the Scheme in which the respondent applied, 5662 flats were allotted leaving 19,271 applicants on the wait list. It is contended that the priority number of the respondent is beyond 12000 and that he can be allotted a flat only on his turn and therefore there is no deficiency.
6. The revision petitioner remained absent despite notice. Heard the respondent in person and perused the records carefully. The case of the petitioner is that the State Commission failed to appreciate that the scheme was open ended and that there was no commitment of any fixed time frame to allot a flat. It was contended that the District Forum had rightly considered whether any out of turn allotments had been made by the petitioner and accordingly dismissed the complaint. The State Commission also failed to appreciate the option of withdrawal, which was not exercised and hence the grievance raised was erroneous. It is also contended that the award of compensation of Rs.20,00,000/- was disproportionate to the claim of damages of Rs.50,000/- made and interest @ 18% when no prayer for interest had been made. The award of deposit of Rs.50,00,000/- to the Consumer Welfare Fund is also contended by the petitioner to be erroneous on part of the State Commission.
7. The respondent has argued that he has been waiting since long for a flat after depositing Rs.3,000/- in 1985 which was a large amount by the standards of that time and that possession has been delayed inordinately. It is also averred that the petitioner is attempting to shift responsibility from one wing/department to another while shying away from its commitment to provide him a flat for which money was accepted over 30 years ago. It is submitted that the order of the State Commission awarding him compensation is valid and should be upheld. It is claimed that the State Commission's reliance on the brochure is correct and that the compensation awarded is just in view of the hardships undergone by the respondent.
8. From the records it is apparent that the District Forum had been persuaded by the petitioner and had rejected the complaint of the respondent. However, the State Commission where the respondent went in appeal, was of the view that the DDA should have allotted a flat to the respondent in view of the lapse of time. This conclusion has not considered the details furnished by the petitioner with regard to the procedure of allotment on the basis of seniority and the availability of funds with the petitioner or the agencies implementing the scheme to execute the project. While the project is socially and economically relevant and necessary, we are in the instant case concerned with the case of the respondent under a particular scheme. It is not disputed by the respondent that he is at priority number 12929 under the General Category. It is his case that the scheme has been implemented tardily with only 2650 flats getting constructed and his application has remained pending.
9. This Commission in exercise of its revisional jurisdiction Commission is not required to re-assess and re-appreciate the evidence on record if findings of the lower fora are concurrent on facts. It can interfere with the findings of the foras below only if they are either perverse or if fora below have acted without jurisdiction. Findings can be concluded perverse only when they are based on either evidence that have not been produced or based on conjecture or surmises i.e. evidence which are either not part of the record or when material evidence on record is not considered. The power of this Commission to review under section 26 (b) of the Consumer Protection Act, 1986 is therefore, limited to cases where some prima facie error appears in the impugned order. Different interpretations of same sets of facts have been held to be not permissible by the Hon'ble Supreme Court.
10. There is evidently inordinate delay in allotting a flat to the respondent. However, it is not to be construed as deficiency in service on part of the petitioner, as time was not of the essence. The petitioner does not dispute that the flat was booked and that the respondent has been waiting for his turn since 1985. The order of the State Commission awarding the respondent compensation of Rs.20,00,000/- and directing the deposit of Rs.50,00,000/- with the Consumer Welfare Board is, however, clearly perverse in that the respondent had prayed for only Rs.50,000/- as compensation. The order of the State Commission has, however, exceeded its jurisdiction in awarding the respondent compensation far in excess of his own claim and in directing that Rs.50 lakhs be deposited with the Consumer Welfare Board. The order of the State Commission is also silent on the reasons for directing the deposit of funds with the Consumer Welfare Fund. The award of Rs.1,00,000/- towards litigation costs when a substantial compensation has also been awarded and interest @ 18% ordered to be paid makes the order excessive. The petitioner is an agency of the Government which implements socially relevant and welfare schemes utilising public funds. Except when perversity or illegality in its actions is conclusively established, which incidentally is neither alleged nor established in the instant case, it would be manifestly unfair to penalise them with such a harsh order.
11. In view of the foregoing, the revision petition is allowed in part and the order of the State Commission is modified as below:
(i) the petitioner will repay the amount deposited by the respondent with interest @ 15% from the date of deposit till the date of realisation;
(ii) the petitioner shall also pay the respondent compensation of Rs.50,000/-;
(iii) the respondent shall also be entitled to litigation costs of Rs.1,00,000/- which shall be paid by the petitioner; and
(iv) the order shall be complied with within 8 weeks failing which penal interest of 18% shall be paid to the respondent.
...................... SUBHASH CHANDRA PRESIDING MEMBER