State Consumer Disputes Redressal Commission
Delhi Development Authority vs Ram Nath Ram on 22 August, 2008
IN THE STATE COMMISSION:DELHI IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of The Consumer Protection Act, 1986) Date of Decision: 22-08-2008 Appeal No. A-07/475 (Arising out of Order dated 15-12-2006 passed by the District Forum-II, Qutub Institutional Area, New Delhi, in Complaint Case No.2571/1995) Delhi Development Authority, Through Its Director (H-1), Vikas Sadan, INA, New Delhi. . . . Appellant Through Mr. P.K. Agarwal, Advocate Versus Ram Nath Ram, C/o. Chaudhary Badle Ram, A-95/1, Devli Extension, New Delhi Since deceased through LRs: 1. Smt. Urmila Devi (Wife) 2. Gautam Prakash (Son) 3. Km Tilotama (Daughter) 4. Ravi Prakash (Son) 5. Km Anupama (Daugher) All R/o. A-95/1, Devli Extension, New Delhi . . . Respondents CORAM: JUSTICE J.D. KAPOOR, PRESIDENT MS. RUMNITA MITTAL, MEMBER
1. Whether Reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice J.D. Kapoor (Oral)
1. On the allegation of having not included the name of the respondent in the category-III Flat as required, in SC/ST quota in the draw in the year 1990 and thereby made him suffer the cancellation of allotment, the appellant DDA has been held guilty for deficiency in service by the District Forum vide Order dated 15-12-2006 and directed to allot category-III flat at Mukherjee Nagar as per demand letter and also to pay Rs. 1.00 Lakh as compensation for the mental agony and harassment. Since the complainant, in the original complaint, died during the proceedings, the Order has been passed that the LRs of the complainant shall inform the appellant as to whom the flat be allotted.
2. The impugned Order has been assailed mainly on the ground that the scheme under which the complainant had applied had already been closed and the Supreme Court has taken a view in Poonam Verma v. DDA - SC 871 AIR 2008 that the DDA had a right to close the scheme.
3. In the aforesaid case the Supreme Court on the facts of the said case, where the complaint was filed by the appellant before the Consumer Forum-II on or about 16-01-1995 inter alia for a direction upon the respondent that their registration should not be cancelled and they should be considered in future draw of lots till they could be allotted flats in the locality of their choice. By a judgment and order dated 24-07-1995 the said application was allowed holding that the action of the respondent in not considering the cases of the appellants for allotment through the process of draw of lots amounted to unfair trade practice apart from being unilateral and unjustified. Aggrieved by and dissatisfied therewith the respondent preferred an appeal before the State Consumer Disputes Redressal Commission, New Delhi and by an order dated 30-11-1998 allowed the said appeal and set aside the order of the District Forum.
Appellants herein thereafter filed a revision application before the National Consumer Disputes Redressal Commission. During pendency of the said application they approached the Finance Member and Chairman of the respondent to place their case before the out of court settlement committee. By an order dated 25-11-1999 the National Commission dismissed the revision petition filed by the appellants relying inter alia on clause 16 of the Brochure wherein it had categorically been stated that DDA reserves the right to withdraw the Scheme at any time. A Special Leave Petition preferred there against was dismissed.
4. In the instant case the complaint was that the respondent applied for allotment of a category-II flat under the 6th Self Financing Scheme 1985 under the SC/ST category in the release issued by the appellant in October 1987. Vide demand cum allotment letter dated 8-1-88 15-1-88 the respondent was allotted a category-II flat was allotted by the appellant. Subsequent to his application dated 29-10-87 for allotment of lat the respondent had applied to the appellant for change of category from II to III category which was acceded to by the appellant subject to payment of difference of registration amount vide letter dated 27-10-87 and thereafter the respondent requested the appellant to consider his application for allotment already made for category II for allotment of category III. However, on receipt of demand cum allotment letter of a category II flat he approached the appellant as he had already made the payment of first instalment of Rs. 57075/- in terms of the demand cum allotment letter. He met the Deputy Director (SFS) who advised him to surrender the allotted category II flat and also assured that the amount deposited would be adjusted with interest against the category III flat which were available for allotment under SC/ST quota in Pitampura. However, no such flat was allotted to the respondent inspite of his second application made in July 1990 though flats were available for allotment.
5. As against this the version of the appellant was that they had included the name of the respondent in the draw before the category was changed and in the release of July 1990 the respondent had not applied for Mukherjee Nagar and had applied only for Vasant Kunj and was successful in the draw. Further that the appellant charges for the flat as per the terms and conditions and the land component is taken into consideration while pricing of the flat and since the respondent had not made payment as per the demand letter he had no locus standi to file the present complaint.
6. On the basis of the claims and counter claims of the parties, the District forum made the following observations:-
The complainant applied for allotment of category III flat in the release of July 1990 vide application No. 001836 dated 23-07-1990. However in the draw he was not successful. This application of the complainant showing the area preferred by the complainant is not available on the records of the OP. The complainant also does not have a copy of the same. The OP was directed to produce the file relating to this release. The OP has failed to produce this file on the ground that the same is not traceable. However the OP has placed on record uncertified copy of a computer print titled as Cross Reference Report for Applicants Random S. No. Wise General Category III Scheme: VI, as Annexure-A to the affidavit dated 18-07-2001 to say that the complainant had applied for allotment of a flat in only Vasant Kunj. Even this document goes against the OP. The complainant might have applied for a Vasant Kunj flat but as per this document name of the complainant was included in the General Category and not in the requires SC/ST category. In view of this discrepancy in this document and non production of the file by the OP, we can draw an adverse inference against the OP that had the file been produced this could have been gone against the OP and it would have been disclosed that the complainant was not considered for allotment of flat against the reserved SC/ST quota. This is certainly deficiency in service on the part of the OP. Had the complainant been so considered in the draw under the SC ST quota he had a good chance of succeeding in the draw. But there could not have been certainty of success. Hence the complainant is entitled to certain compensation for this deficiency in service on the part of the OP.
7. In view of the aforesaid observations made by the District Forum, the order directing the appellant to allot category-III flat at Mukherjee Nagar as per the demand cum allotment letter dated 6-4-93 8-4-93 was not required nor was compliance of such an order feasible as no such flats are available at Mukherjee Nagar and moreover the scheme was abandoned by the appellant midway which it had a right to abandon.
8. However, in this regard the observations of the District Forum are also relevant which are as under:-
If the above mentioned flat is no more available for allotment to the complainant that OP shall allot another category III flat to the complainant in the area of Mukherjee Nagar or in the areas of Saket, Rajouri garden, Paschim Vihar, Pitam Pura, preference for which was given by the complainant in his application in the release of the year 1987. It is made clear that the complainant shall have to pay the price of the flat as on the date of the communication for final demand cum allotment letter. The amount of Rs. 57075/- already paid by the complainant shall be adjusted against the cost of the flat to be allotted with interest at the rate of 7% p.a. from the date of payment by the complainant till such adjustment. The registration money paid by the complainant shall also be adjusted against the cost of the flat to be allotted to the complainant with interest as per rules. The OP shall allot a category III flat to the complainant within 3 months from the date of receipt of this order.
9. However, keeping in view the observation that the respondent shall have to pay the price of flat as on the date of communication of final demand cum allotment letter which was not correct as, if the scheme has been closed and flats are available in the subsequent scheme which are brand new, the person cannot be asked to pay the price which was prevalent on the date of demand letter.
10. For the foregoing reasons, we partly allow the appeal with the following directions:-
i) the appellant may allot another category-III flat in any area or areas where such a flat may be available with it on payment of the original demand with interest @9% p.a. towards the actual interest;
ii) The appellant shall pay Rs. 1.00 Lac as compensation to the respondent for the mental agony and harassment;
iii) The appellant shall also pay Rs. 3,000/- as cost of litigation to the respondent; and
iv) If no flat as directed above is available with the appellant the appellant shall pay a lump sum compensation of Rs. 5.00 Lakhs to the respondent.
11. The above directions shall be complied with within two months from the date of receipt of a copy of this Order. Appeal stands disposed of in aforesaid terms.
13. A copy of Order as per statutory requirement be forwarded to the parties and to the concerned District Forum and thereafter the file be consigned to record.
15. FDR/Bank Guarantee, if any, be released under proper receipt.
(JUSTICE J.D. KAPOOR) PRESIDENT (RUMNITA MITTAL) MEMBER HK