State Consumer Disputes Redressal Commission
Delhi Development Authority vs Sh. Vijay Kumar Jasra on 3 September, 2013
IN THE STATE COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision : 03.09.2013 First Appeal No-631/2009 (Arising out of the order dated 09.04.2009 passed by the District Consumer Disputes Redressal Forum, Udyog Sadan, C-22 & 23 Institutional Area, Behind Qutub Hotel, New Delhi Complaint Case no. 151/2008) IN THE MATTER OF:- Delhi Development Authority Vikas Sadan, INA New Delhi .Appellant VERSUS Sh. Vijay Kumar Jasra S/o Sh. Lajpat Rai R/o SU 187, Pitam Pura Delhi Respondent CORAM Justice Barkat Ali Zaidi, President Salma Noor, Member
1. Whether reporters of local newspaper be allowed to see the judgment? Yes
2. To be referred to the reporter or not?
Yes Salma Noor, Member Judgment
1) These two appeals arise from two Complaints Cases No. 151/2008 & No. 152/2008 respectively having similar & identical facts, wherein orders dates 09.04.2009 passed by the District Forum-II, Udyog Sadan, C-22 & 23, Institutional Area behind Qutub Hotel, New Delhi have been assailed by the OPs (herein after referred to as the appellants). The Appellant i.e. OP/DDA have been directed to concert from lease-hold to free-hold two shops bearing No.2 & 3 situated in Pocket-S, Uttary Pitam Pura, Delhi & to execute conveyance Deed in favour of the complainants/respondents within thirty days and also to pay compensation of Rs. 20,000/- each for the mental agony, harassment & suffering including litigation charges. In Complaint Case No. 151/2008 it also directed that the OP/DDA (Appellants herein before us) shall not to make any demand including Rs. 5,52,000/-.
2) Facts of the complaint case No. 151/2008 in Appeal No. 631/2009 briefly stated are, that a shop bearing No. 3 in Pocket-S, Uttary Pitam Pura Estate, New Delhi was allotted by the Appellant on 27.01.1984 in favour of Sh. Lajpat Rai on whose demise the shop came to the complainant, Sh. Vijay Kumar Jasra (hereinafter, referred to as Respondent) vide a relinquishment deed executed by the Legal-heirs of deceased Late Sh. Lajpat Rai. The Complainant/Respondent in order to get conversion of the shop from leasehold to freehold applied to the appellant on 24.11.2005 after completing necessary formalities including depositing Rs. 22,794/- as ground rent besides conversion charges & the penalty. According to the complainant (Respondent herein before us) the conversion order was to be passed by the appellant within period of 90 days from the day of submitting the application, which they failed to do so till 25.09.2006, when the appellant asked the respondent to deposit Rs. 5,52,000/- on account of misuse charges without disclosing the basis for levying those charges. The respondent denied any misuse of the shop & since no order for conversion was passed by the appellant, the respondent filed the complaint praying for directions to the appellant for conversion of his shop from leasehold to freehold & execute the conveyance deed in his favour besides paying Rs. 1,00,000/- towards compensation & cost of litigation.
3) Facts of the Complaint Case No. 152/2008 in Appeal No. 632/2009 are that Respondent Sh. Satish Kumar Jasra acquired Shop No. 2, Pocket-S, in Uttary Pitam Pura Estate, New Delhi from the original allottees namely Sh. Charan Singh, Smt. Joginder Kaur & Smt. Jagjit Kaur on the basis of agreement to sell & General Power of Attorney executed in his favour. The shop was allotted by the Appellant on 27.01.1984 and the conveyance deed was executed in favour of allottees on 15.11.2005.
4) The respondent applied on 17.11.2005 for conversion of the shop from leasehold to freehold & deposited requisite charges with the appellant on 24.11.2005. As per the terms & conditions, the appellant was required to convert the shop from leasehold to freehold within 90 days of the application but the appellant failed to make any communication with the respondent within the stipulated period. After the lapse of more than one year the respondent received a letter dated 05.10.2006 demanding from him a sum of Rs. 28,908/- on account of ground rent, maintenance charges etc. The respondent immediately made the payment on 09.10.2006 but despite completing all the formalities by the respondent, the appellant did not convert the shop-in-question from leasehold to freehold. The respondent then filed the complaint requesting for directions to the appellant for the conversion of the shop from leasehold to freehold & to execute the conveyance deed in his favour besides asking for compensation of Rs. 1,00,000/-.
5) The appellant had opposed the claim of the respective respondents before the District Forum averring that seeking conversion to leasehold to freehold does not amount to hiring services as defined under section 2(1)(o) of the Consumer Protection Act, 1986 &, therefore, the complaints of the respondents before the Consumer Forum were not maintainable.
The appellant also pleaded that after receipt of application for conversion of the two shops, site was inspected by their Asstt. Engineer, who had found that the two shops-in-question on were amalgamated with each other & on the back lane of the shops there was unauthorized construction by encroachment on Govt. land & also a room had been constructed on the two shops unauthorizedly for which a notice dated 24.11.2005 had been issued to the respondents asking them to remove the unauthorized construction failing which the shops would be sealed. The respondents informed the appellant that they have already removed the unauthorized construction & a civil suit pending in this regard had also been withdrawn on 18.11.2005, whereas the respondents factually had not removed the unauthorized construction & therefore, the conversion could not be processed.
6) The appellant admitted that on account of misuse charges worked out provisionally in respect of Shop No. 3 a demand for Rs. 5,52,000/- had been raised. It was also contended by the appellant before the District Forum that conversion from leasehold to freehold is subject to Byelaws & since the respondents did not comply with the Byelaws, therefore, conversion was not allowed.
7) The orders dated 09.04.2009 passed by the District Forum separately in the above noted two complaints have been assailed on variety of grounds, inter-alia, that still there exists unauthorized construction, encroachment as well as amalgamation of the Shops No. 2 & 3 & there cannot be any compromise on the issue of amalgamation because it is matter of structural safety of the building & unless it is removed & misuse charges are paid conversion from leasehold to freehold is not permissible. It is also argued on behalf of the appellant that the appellant are performing statutory function of planned development of Delhi, ensuring that the buildings are used in conformity with the provisions of Building Byelaws, in force, in Delhi, in the areas under appellants jurisdiction. While performing these functions, the appellant are not rendering Service of Housing as defined in Section 2(1)(o) of the Consumer Protection Act, 1986, &, therefore, hiring or availing of any services for consideration by the respondents does not fall within the purview of the Act.
It has further been argued that the original allottees had purchased the shops in auction, who therefore, did not fall within the definition of Consumer as held by the Honble Supreme Court in the case titled as U.T.Chandigarh Administration & Anr. V/s Amarjeet Singh & Ors.
8) The Ld. Counsel for the appellant has also placed on record a photograph in order to substantiate her claim that still there exists unauthorized construction & encroachment as well as amalgamation of the Shops.
9) On behalf of the Respondents it has been submitted that the Honble National Commission has held in Revision Petition No. 2742/2006 decided on 17.07.2007 in Case, DDA V/s Sh. Inder Prakash Katyal that the relation between DDA & allottees is that of service provider & consumer, and the conversion of leasehold into freehold of property is a facility in connection with the housing construction & hence, it is covered by the definition of the term Service. Similarly it has been settled position of law that allottee of DDA property applying for conversion is a consumer & hence avails the service for consideration. We fully agree with this contention.
10) Relying upon the judgment of Delhi High Court in Engineering & Industrial Corp. (M/S) V/s Union of India & Ors. 2007 VIII AD (Delhi) 359, it has been submitted on behalf of the Respondents that relation between the appellant & the respondents is of Lesser and Lessee & it is governed by the lease-agreement executed between the parties & the lease deed does not contain any clause, whereby demand for misuse charges for alleged unauthorized construction could have been raised.
Regarding amalgamation, it is submitted by the respondents that Shop No. 2 & 3 are adjacent & adjoining to each other & a door has been opened between the two shops, which by no stretch of imagination can be considered unauthorized construction, as alleged by the appellant. So far as, alleged misuse is concerned, the contention of the respondents is that the shops are being used as shops which were allotted without specifying any purpose & the respondents are not using the shops for purpose other than the shopping.
11) We have thoughtfully considered the rival submissions of the parties & carefully perused the impugned orders passed by the Ld. District Forum which are solely based on the decision of Delhi High Court passed in Engineering Industrial Corp. (Supra) wherein it has been held that until & unless the property is converted from leasehold to freehold, relationship between the petitioner & respondent is governed by the lease-deed, which does not provide for any collection of damages or charges for unauthorized construction. The Honble High Court then quashed the demand raised by the M.C.D. for damages for unauthorized construction.
12) The case of the respondents is fully covered by this judgment. There is no denying the fact that the shops-in-question are leasehold properties & have not been converted into freehold as yet, though their case is distinguishable on facts. The conveyance deeds in favour of the allottees in both the cases comprise of Annexure-A containing the Terms & Conditions of the lease and there is Clause-4 which provides that, the lessee shall not deviate in any manner from the layout plan nor alter the size of shop whether by sub-division, amalgamation or otherwise. Here in the cases of the Respondents the objection of the appellants for declining conversion is that the two shops-in-question have been amalgamated with each other for which the appellant relies upon the above Clause.
13) In this respect a copy of circular dated 06.05.2008 issued by the appellant had been placed on record, whereby the amalgamation of two or more built up shops of DDA are permitted subject to certain conditions, which include common ownership of the shops purposed for amalgamation.
14) In the instant case Shop No. 2 is owned by respondent Sh. Satish Kumar Jasra S/o Late Sh. Lajpat Rai & Shop No. 3 is owned by Sh. Vijay Kumar Jasra S/o Late Sh. Lajpat Rai who are thus siblings of each other and hence owning the two shops jointly & are entitled to the benefit of circular dated 06.05.2008. So far as damages demanded by the appellant in the case of Sh. Vijay Kumar Jasra for unauthorized construction can be held unjustifiable in view of the Delhi High Court Judgment in Engineering Corp. (Supra). For condonation of amalgamation of the Shops of the respondents, they are required to fulfill other conditions for the purpose, which are:-
1. Structural safety certificate from the concerned Divisional Engineer of D.D.A; and
2. Payment of 10% of the market value of the total area of the amalgamated shops.
To the above extent the impugned orders in both the cases need to be modified.
15) Hence, partly allowing the appeals, we direct the appellant to convert the shops-in-question from leasehold to freehold & execute conveyance deed in favour of the respondents within 30 days subject to the respondents obtaining permission for amalgamation of Shops No. 2 & 3 in pursuance of Circular No. F37 (II) 1975/IMPL/2490 dated 06.05.2008.
16) It is further directed that appellant shall not raise any demand including Rs. 5,52,000/- from respondent Sh. Vijay Kumar Jasra on account of damages in view of the judgment of Delhi High Court in the case of Engineering Industrial Corp. (Supra).
17) However, no cost is payable by either parties in view of the facts & circumstances as discussed above.
18) Copy of this order be placed on each Appeal File.
19) Statutory deposit be refunded as per rules.
(Justice Barkat Ali Zaidi) President (Salma Noor) Member fatima