National Consumer Disputes Redressal
Delhi Development Authority vs Smt. Raj Bala Grover on 22 September, 2011
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 112 OF 2006 (From the order dated 8.11.2005 in Complaint No. 59/1992 of State Consumer Disputes Redressal Commission, Delhi) Delhi Development Authority Through its Director (C.S.), Vikas Sadan, I.N.A., New Delhi 110 023. Appellant(s) Versus Smt. Raj Bala Grover C/o Carburetor House 1587/31, Naiwala, Hardhian Singh Road Karol Bagh, New Delhi 110 005 Respondent(s) BEFORE HONBLE MR. JUSTICE V.R. KINGAONKAR, PRESIDING MEMBER HONBLE MR. VINAY KUMAR, MEMBER For the Appellant Mr. Praduman Kumar Aggarwal, Advocate For the Respondent Mr. Arvind Chaudhary, Advocate PRONOUNCED ON 22nd September, 2011 ORDER
MR. JUSTICE V.R. KINGAONKAR, PRESIDING MEMBER This appeal arises out of the judgement and order rendered by the State Consumer Disputes Redressal Commission, Delhi (in short the State Commission), in complaint bearing No. 59/1992. By the impugned order, the complaint filed by the respondent was allowed with direction that the appellant shall refund an amount of Rs.98,890.81 to the respondent (complainant) along with compensation of Rs.25,000/- on account of loss and sufferings.
2. The case of the complainant (respondent), stated briefly was that deceased Vishan Dass Thareja was allotted a plot by Mianwali District Cooperative House Building Society Ltd. The appellant had allotted leasehold land to the said Housing Society. The Cooperative Housing Society had developed the land. Being member of the said Housing Society, Vishan Dass Thareja was allotted Plot No.3, (Block No.B-3) under an agreement of sub-lease executed by the Cooperative Housing Society in his favour. The allotment was made to him a way back. In his lifetime, he executed an unregistered Will Deed dated 4.12.1973 in favour of the respondent (complainant). Under the said Will Deed, the plot was bequeathed in her favour.
He died on 19.3.1975. After his death, the complainant obtained probate on 4.12.1993 and thereafter filed an application for substitution of her name as the leaseholder in respect of the said plot. She was called upon by the appellant to pay amount of Rs.90,311.35 being unearned increase as per the terms of the policy decision dated 26.7.1988. She submitted application dated 30.11.1999 seeking waiver of the unearned increase of the charges. Her request was turned down by the appellant DDA. On 5.3.1990, she paid that amount. The appellant allowed transfer of plot in her favour on basis of the documents and in view of the payment of unearned increase of the charges as demanded from her. On 3.4.1990, the appellant executed the sub-lease deed in her favour. She took possession of the plot in question on 12.5.1990 from Cooperative Housing Society as a sub lessee in view of the terms of the sub-lease deed. Thereafter, she filed the complaint proceedings before the State Commission vide Complaint No.59/92.
3. The case of the appellant before the State Commission was that from the policy decision, 50% unearned increase can be levied in view of clause 13 of the policy decision dated 26.7.1998, because the respondent (complainant) was not the member of the family of deceased, Vishan Das Thareja.
Secondly, it was averred that the claim for unearned increase was, in fact, levy of the amount under the statutory provision, which was not part of any service, rendered to the respondent for consideration of any amount and, therefore, she was not a consumer in relation to the appellant. Therefore, the complaint itself was not maintainable.
4. By the impugned order, the State Commission rejected defence of the appellant simply on the ground that the respondent (complainant) was daughter of an aunt of deceased Vishan Dass Thareja and was brought up by him from tender age. He was her foster father and, therefore, procurement of the Will Deed for any monetary consideration was out of question. The State Commission held that the unearned increased amount could not be recovered from the respondent (complainant) and as such, was liable to be refunded to her.
Hence, the impugned order was rendered in her favour.
5. We have heard learned Counsel for the parties. We have gone through the relevant documents as well as the policy decision of the appellant.
6. Before we embark upon discussion on merits, it is worthwhile to note that the State Commission did not address the clinching issue as to whether the respondent could be allowed refund of the amount, which was recovered in accordance with the policy decision of the appellant-DDA. The State Commission also did not properly address the issue about her status as consumer vis--vis the appellant. In fact, the State Commission assumed that she is the consumer on the basis of the Will Deed executed by deceased, Vishan Dass Thareja because she had stepped into his shoes. Some of the observations made by the State Commission would indicate that the case of the appellant was not duly considered and there was pre-judicial view taken by the State Commission. The State Commission observed:
Conduct of the respondent particularly the officer concerned was most reprehensible and that of an extortionist. However, could a Will executed in 1973 and probate detained in respect thereof could have been a monetary consideration of a property allotted in the year 1990. It was most unfortunate that in spite of having received a representation for the Lt. Governor who was Chairman of DDA, the then Vice Chairman did not bother to deal with it at his end and left the matter to the lower functionaries who were bent upon to reject the legal and rightful claim of the complainant obviously for ulterior motives and compelled her to shell out a huge amount of more than a lac or so.
7. Coming to the merits of the matter, let it be noted that the respondent (complainant) had applied for substitution of her name on the basis of Will Deed as a legatee of Vishan Dass Thareja on 20.11.1984. At that time, policy decision dated 29.3.1988 was in vogue. The relevant policy decision of the appellant clearly shows that mutation could be recommended by the concerned officers in favour of the legatee only after satisfying themselves when the right of the lessor regarding recovery amount of 50% unearned increase is not being jeopardised. It is obvious that as per the policy decision, the appellant was entitled to recover 50% of the unearned increase. Obviously, the recovery was to be made prior to sanctioning of the mutation. By letter dated 22.12.1989 (Annexure P8), she was called upon to deposit the 50% unearned increase along with interest. She deposited that amount on 5.3.1990 without any protest.
8. In Delhi Development Authority Vs. Vijaya C. Gurshaney (Mrs) and Another (2003) 7 SCC 301, the Supreme Court held that the DDA is a creature of statute and, therefore, the policy decision or guidelines formulated by the DDA have a binding effect on its transferees of land and their assignees, in the absence of rules to the contrary. The relevant observations of the Supreme Court may be reproduced as below:
4. The High Court has not at all adverted to the terms and conditions stipulated din the perpetual lease deed executed between DDA and the deceased Ram Dhan, on the basis of which two impugned letters in the writ petition have been issued. This is where the High Court had sidetracked the main issue and decided an issue, which was not at all relevant in the facts and circumstances of the case.
It was the specific case of the appellant (respondent before the High Court) that the will was actuated by monetary consideration and was in fact a sale. It was also the specific case of the appellant that it was actually a transfer of land to non-blood relation of the deceased Ram Dhan and was in violation of land to non-blood relation of the deceased Ram Dhan and was in violation of the terms and conditions stipulated in the lease deed and therefore, the respondent was liable to pay 50% of unearned increase in the value of the property.
10. The rationale behind the formulation of its policies and guidelines issued by DDA is to curb illegal transactions in favour of persons not of blood relation of the allottee, being practised rampantly and the property being transferred by an underhand sale in the garb of will and power of attorney etc. DDA has formulated a policy that in such cases the Department would ask for 50% of unearned increase in the value of property. It is always open to the appellants to inquire whether an alleged will is in actuality a sale in the garb of will in total disregard of the policy decision of the authority. Merely because probate/letters of administration are granted, would not preclude DDA from so inquiring. It must be grasped that DDA has been given no notice of the testamentary proceedings. Therefore, it would have no right to appear or oppose such proceedings.
As already said, DDA is a creature of the statute and any policy decision or guidelines formulated by such Authority will have a binding effect on the parties, in absence of rules to the contrary.
9. We are of the opinion that the present case is covered by the ratio Delhi Development Authority Vs. Vijaya C. Gurshaney (Mrs) and Another (Supra). It follows, therefore, that the appellant was entitled to claim 50% of unearned increase for value of land in accordance with its policy decision. The policy to levy such land was adopted by the appellant and was in force at the relevant time.
10. Another aspect of the matter is that the appellant objected maintainability of the complaint for the reason that the respondent cannot be termed as consumer. The levy of statutory charges or the amount recoverable under the policy decision of the appellants was sort of compulsory recovery for assigning of rights in favour of the transferee. The respondent was not covered under the definition of family of the deceased lessee. This Commission in Delhi Development Authority Vs. Shri Rattan Lal R.P. No. 2754 of 2006 held that when there was amount claimed by levying misuse charges, the DDA did not perform any service as defined under the Consumer Protection Act, 1986, nor there was any consideration charged from the complainant. Therefore, such a dispute cannot be covered under the Consumer Protection Act, 1986. In this view of the matter, we are of the opinion that the respondent was not a consumer qua the appellant and the dispute was not a consumer dispute within the ambit of the Consumer Protection Act, 1986. It is explicit that the complaint could not be entertained by the State Commission for the refund of the amount recoverable under the statutory provisions of the policy.
11. We may notice from the record that respondent, Smt. Raj Bala Grover transferred the plot in question on 21.6.1991 before filing of the complaint application in the State Commission. It is pertinent to notice that copy of the Agreement of Sale dated 21.6.1991, was placed on record. The application for mutation was filed by the subsequent transferees on 17.12.1998.
That application was filed by one Smt. Sunila Bhatia in her capacity as holder of power of attorney of the respondent (complainant) seeking conversion of the leasehold to freehold property in favour of the three transferees by name Darshan Lal Bhatia, Yash Bhatia and Mohinder Pal Bhatia. The subsequent transferees are third parties and were never in the picture during the pendency of the earlier complaint. What appears from the record is that after transfer of the plot in question to them, the complaint was filed by the respondent. The third parties were instrumental in filing of the complaint through the respondent. All the relevant aspects have not been noticed by the State Commission while passing disparaging remarks against the officers of the appellant.
12. Taking overall view of the matter, we are of the opinion that the complaint of the respondent was not maintainable nor there was any merit in the same. The complaint ought to have been dismissed by the State Commission. The State Commission had no business to pass disparaging remarks against the officers of the appellant without hearing them or without appreciating the purport of the relevant policy decision. Learned Counsel for the respondent (complainant) submitted that the appellant has unnecessarily kept the mutation application pending for long many years. The grievance, however, is not subject matter of the present dispute. Considering the relevant aspect, we are inclined to hold that the impugned order is bad in law and unsustainable. Hence, the appeal is allowed. The impugned order is set aside. The complaint stands dismissed. No costs.
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(V.R. KINGAONKAR J.) PRESIDING MEMBER ..
(VINAY KUMAR) MEMBER k