State Consumer Disputes Redressal Commission
Sandeep Gandotra vs Delhi Development Authority on 16 April, 2013
IN THE STATE COMMISSION : DELHI Date of Decision: 16.4.2013 Complaint No. 230/2007 Shri Sandeep Gandotra S/o Late Sh. S.R. Gandotra, R/o D-1005, Defence Colony, New Delhi-110 065 ..Complainant vs Delhi Development Authority Through Its Vice Chairman Vika Sadan, INA Market, New Delhi. ---Opposite Party CORAM V.K.Gupta, Member(Judicial) Salma Noor, Member
1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?
V.K.GUPTA
1. This is a complaint u/s 17 of the Consumer Protection Act, 1986.
2. Briefly stated factual scenario is that the complainant was registered with DDA under the Vth Self Financing Scheme for the allotment of Category III Flat and paid Rs.15,000/- as the registration fee. In the year 1994, the complainant was allotted first floor flat in Mukherjee Nagar at an estimated cost of Rs.7,81,200/-, which was payable in installments. The allotment letter had not reached the complainant and the complainant asked for the same from the DDA vide letter dated 15.4.1994, but despite the several reminders, nothing has been sent by the DDA, but on 11.9.1996, the DDA informed the complainant that the allotment made in the year 1994 was cancelled. In the year 1997, the complainant received the letters from the property dealers that another flat bearing No.3115, Pocket B-4, Vasant Kunj, New Delhi has been allotted to him by the DDA, but the complainant never received any allotment letter from the DDA. On 15.4.1998 and 14.5.1998, the complainant called upon the DDA to take out and peruse the file regarding allotment of the flat at Vasant Kunj to him and investigate as to how it was allotted and given to somebody else.
However on 16.4.1999, the complainant received a letter from DDA asking for consent from left out allottees of Mukherjee Nagar for allotment against flats planned to be constructed in future, at the cost prevailing on the date of draw. On 1.12.99, the complainant received a letter from DDA informing him that he will be allotted a Category III flat in Vasant Kunj, but on the wrong part of the DDA allotment of flat No.3115, Pocket B-4, Vasant Kunj, New Delhi, the DDA decided to allot another flat in Vasant Kunj vide letter dated 28.12.1999 informing the allotment of Flat No.4066, Pocket 5 & 6, Sector-B, Vasant Kunj, New Delhi. The complainant made a representation to DDA that something wrong has been done by the DDA.
However, on 3.3.2000, the complainant received reply stating that the current cost will be charged for the flat No.4066, Pocket 5 & 6, Sector-B, Vasant Kunj, New Delhi, being allotted to him now, as per the existing policy. The complainant, thereafter received demand letter dated 14.8.2000 in respect of the above flat in which the cost of the flat was charged at Rs.19,41,400/-, which the current cost of 2000. Many correspondence took place and on 17.4,2003 it was informed by the DDA that the allotment at Vasant Kunj flat was cancelled, which is very arbitrarily and in a very capric manner in as much as only the information with regard to allotment has been made, but the allotment-cum-demand letter has not been issued by the DDA nor it was received by the complainant at any point of time.
The OP filed the WS and denied the entire allegations. It is admitted that the complainant got registered himself for the allotment of the Category III SFS Flat vide FDR No.9491 for Rs.15,000/- vide application No.3557. it is also admitted that the complainant was allotted a Category III SFS Flat of 1st Floor in Mukherjee Nagar and the allocation letter was issued to him in the block allotment dates of 10.3.94 15.3.94 and due to non deposition of the requisite installments, the allocation was cancelled and the information was given. The complainant further applied for the allocation of the flat in the release for the period 22.12.92 to 11.1.92, but could not be allotted a flat in the said draw.
On the request of the father of the complainant, the competent authority has taken a lenient view and the matter was placed in the Restoration Committee and allocation of flat at Mukherjee Nagar was restored and he was considered for the allotment of Category III SFS flats in Vasant Kunj. Therefore, the complainant was allotted a Category III SFS flat No. 4066 S+T, Category III, Sector-B, Pkt 5 & 6, Vasant Kunj, New Delhi in the computerized draw held on 24.12.1999 and ready built flat was allotted. Demand-cum-allotment letter was issued on the current cost because no amount was paid by the allottee on account of installments. The allotment was cancelled due to non-payment of the demanded amount. The demand letter in respect of the said flat was issued on 14.8.2000, but it was cancelled on account of non payment. Therefore, the complainant is not entitled for any relief.
The complainant has filed the rejoinder against the new plea raised by the DDA in the WS.
Both the parties have filed the evidence by way of affidavits in support of their claim.
We have heard Ld. Counsel for both the parties and perused the material on record.
At the outset it may be mentioned that it is admitted by both the parties that the complainant registered with DDA under the 5th Financial Self Financing Scheme for the allotment of category III flat and paid registration fee of Rs.15,000/-.
The argument submitted by the Counsel for the complainant is that the complainant has not received any demand-cum-allotment letter in respect of the alleged allotment made by the OP. On the other hand it is argued by the Counsel for the OP that on 15.3.1994, the complainant was allotted first Floor Flat in Mukherjee Nagar for a cost of Rs.7,81,200/-, which was to be payable in installments, but the complainant has not deposited the amount in accordance of the scheduled plan, therefore, the said flat was cancelled and when it came to the knowledge of the complainant through property dealers, the complainant started writing letters to the DDA, but no response has been given. However, the complainant received a letter dated 16.4.1999 from the DDA asking for the consent from left out allottees of Mukherjee Nagar, New Delhi against the flats planned to be constructed in future. On 1.12.99 the complainant received a letter from the DDA informing that he will be allotted a category III Flat in Vasant Kung, New Delhi and in the computerized draw held on 24.12.99 Flat No.4066, Pocket 5 & 6, Sector-B, Vasant Kunj, New Delhi was allotted, but no demand-cum-allotment letter sent to the complainant and he came to know from the other persons with regard to the allotment of this flat and straight way on 1.4.1005, DDA informed the complainant with regard to the cancellation of the aforesaid flat despite the fact that no demand-cum-allotment letter has been sent to the complainant in order to deposit the amount as per the scheduled plan.
The only controversy before us for the decision in this case whether the OP has rightly cancelled the allotment of the flat allotted to the complainant in the absence of any proof of delivery of demand-cum-allotment letter, Show Cause notice, and cancellation letter. During the course of proceedings, we have summoned the entire original record of the DDA in respect of this matter, and we requested the Counsel for the DDA to show any paper or any postal receipt by which the demand-cum-allotment letter has been sent to the complainant and it was delivered, or to show that the demand-cum-allotment letter has been sent, but it was returned as undelivered.
Counsel for the DDA utterly failed to show any paper or any postal receipt by which the demand-cum-allotment letter has been sent to the complainant. The Counsel for the DDA very fairly and candidly admitted that there is nothing on material on record by which it could be shown that the demand-cum-allotment letter has been sent to the complainant. Even the dispatch register has not been produced before us, by which it could be shown that the demand-cum-allotment letter, Show Cause Notice or any cancellation letter was sent to the complainant. Honble Supreme Court in V.N. Bharat Vs DDA & Anr. AIR 2009 Supreme Court 1233 has considered this dispute and very categorically propounded that the denial by the complainant of the receipt of the demand-cum-allotment letter dispatched by the OP, the onus to prove the denial, and onus shifted to the DDA to prove the said service that the demand-cum-allotment letter has been sent to the allottee. In the case in hand the onus to prove the delivery of the demand-cum-allotment letter not discharged by the DDA as they had failed to provide any proof of the delivery of the demand-cum-allotment letter, show Cause Notice, and the cancellation letter. Honble Supreme Court in this Case V.N. Bharat (Supra) has further propounded that the presumption u/s 114 of the Evidence Act, which is rebutable presumption and on denial of the receipt of the registered letter from the DDA discharged his onus and the onus shifted to the DDA to prove such service by producing postal receipts of examining the postal authority or obtaining the certificate from then in order to establish that the registered article has been delivered and received by the complainant. As stated earlier in this case, the Counsel for the DDA has not produced any iota of evidence to show that the demand-cum-allotment letter, Show Cause Notice, and cancellation letter has been sent to the complainant, and even the dispatch register has not been produced before us. What is contended by the Counsel for the DDA is that the complainant has already in knowledge with regard to the allotment of the flat, and he has not deposited the amount, therefore, the complainant is not entitled to claim any relief. This contention is devoid of all force. It may be germane to mention here with regard to the allotment of the flat, the complainant has come to know from the property dealers, whose photo copy has been filed. This is not sufficient on the part of the DDA to discharge its onus to show that the demand-cum-allotment letter has been delivered and sent to the complainant.
If any allotee comes to the knowledge with regard to the allotment of any flat through property dealer later on, it is a hearsay evidence and cannot form the basis that the complainant has been allotted a flat.
In B.K. Mehta Vs. DDA (WP(C) No.348/2007 decided on 19.9.2007 by the Honble Delhi High Court it has been held that if the service of the demand-cum-allotment letter is sent on the old address and even the notice to show cause issued by the DDA not served on the Petitioner, in such circumstances, such allottee cannot be treated as defaulter by the DDA, and the Honble High Court issued direction to the DDA to allot and issue demand-cum-allotment letter of the flat of the same size and the locality as the flat, which was allotted in the year 2001.
In another case D.S. Sethi Vs. DDA 149 (2008) Delhi Law Times 481 (DB) decided on 30.1.2008, it was held by Honble Delhi High Court that the DDA, a statutory authority, bound to act fairly and it was incumbent on the part of the DDA to have made efforts to serve demand-cum-allotment letter to the alottee. Representation of the allottee received is of no consideration, and no punitive action could be taken against the allottee for non compliance of the demand not served upo0n allottee, and in this case Honble Delhi High Court has issued directions to the DDA to allot the flat in question, if the same is available for allotment to the allottee.
In another case reported as Naresh Kumar vs. DDA 147(2008) Delhi Law Times 369, Honble Delhi High Court has held that if the demand letter not served upon the allottee as per the postal remarks, no punitive action could have been taken against the allottee for non compliance of the demand not served upon the allottee. It was also held in this case that the allottee is deprived of the allotment by the wrong full acts of the DDA, and even after assumed automotive cancellation, DDA made no efforts to call upon the allottee to take refund of the amount, and no such action of the DDA is neither confide nor fair.
As stated earlier that the DDA has not produced any evidence nor any document to show that the demand-cum-allotment letter has been sent to the complainant in order to deposit the amount as per scheduled plan. It is a matter of common observation that the officers/officials of the DDA with a malafied intention do not sent the demand-cum-allotment letter, Show Cause Notice or cancellation letter to the allottee and his dream of residing in a flat disappear and cause gross harassment and mental agony and sheer suffering.
During the course of arguments, the complainant present in person along with his Counsel has made a statement that he is ready to take the allotment of the flat in the same category and in the same area with the price prevalent at present. A request was made to the Counsel for the DDA to make an allotment of the Flat of the same category at the prevalent price, which is allotted to some other stranger, causing no financial loss to the DDA, but the Counsel for the DDA refused this request of the complainant also on the ground that this is not a policy of the DDA. Suffice to say, if the allotment of the flat in respect of the same category and the same area at the prevalent price is allotted to the complainant, no financial loss would be occurred to the DDA in any way.
Material on record goes to show that the complainant was registered in the 5th Financial Scheme as way back in 1991 and even after expiry of 20 years his dream to have a flat of DDA completely shattered and the complainant caused harassment and sheet suffering on account of the malafied intention of the officers and officials of the DDA, for which we quantify the amount of compensation of Rs.3,00,000/-.
Under these circumstances we hereby direct:
i) The DDA shall allot the flat of Category III in Vasant Kunj, New Delhi in favour of the complainant at the prevalent cost.
demand-cum-allotment letter shall be issued within one month from today and on deposit of the entire amount by the complainant, the possession shall be delivered to the complainant within a month.
ii) The DDA shall also pay Rs.3,00,00/- as compensation for mental agony, harassment and sheer suffering, inclusive of litigation charges.
(Salma Noor) Member (V.K.Gupta) Member (Judicial) Arya