State Consumer Disputes Redressal Commission
Dda vs Smt. Naresh Arya on 28 July, 2017
Daily Order IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision:28.07.2017 First Appeal- 166/2010 (Arising out of the order dated 23.12.2009 passed in Complainant Case No. 661/2007 by the District Consumer Disputes Redressal Forum (II), Udyog Sadan, New Delhi) Delhi Development Authority, Through its Vice Chairman, Vikas Sadan, I.N.A., New Delhi. .....Appellant Versus Smt. Naresh Arya, W/o Sh. Ashok Kumar, Flat No. L-1/132, Ground Floor, DDA Flats, Kalkaji, New Delhi. .....Respondent CORAM Justice Veena Birbal, President Salma Noor, Member
1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?
Justice Veena Birbal, President Aggrieved by the order dated 23.12.2009 passed by the Consumer Disputes Redressal Forum(II), Udyog Sadan, New Delhi (in short, the "District Forum"), the appellant/OP has filed this appeal whereby the aforesaid complaint has been allowed.
Briefly the facts relevant for the disposal of the present appeal are as under:
A complaint under Section 12 of the Act was filed by the respondent herein i.e. complainant before the District Forum stating therein that she had moved an application for conversion of lease hold to free hold of her Flat No.L-1/132A, Ground Floor, DDA Flats, Kalkaji, New Delhi vide application No.101367 dated 4.4.05 which was submitted to appellant/OP on 9.4.05. A sum of Rs.37,300/- was deposited by her for the said purpose including Rs.200/- on account of processing fee as per terms and conditions contained in the brochure of appellant/OP. It was alleged that appellant/OP had to complete the conversion of said flat from lease hold to free hold within a period of 90 days. However, no communication was received by her for a period of 2 years from the appellant/OP. It was alleged that on 12.3.07, the appellant/OP had sent a letter by which respondent/complainant was asked to deposit Rs.1,45,000/- on account of misuse charges and damage charges. Respondent/complainant had alleged that there was no misuse in the aforesaid. It was alleged that for the purpose of conversion, the alleged misuse charges also could not have been levied. It was alleged that the demand was malafide. Respondent/complainant had prayed for the withdrawal of demand of Rs.1,45,000/- with a direction to appellant/OP to allow conversion and had also prayed for Rs.50,000/- towards compensation.
The complaint was opposed by appellant/OP by filing written statement wherein it was admitted that the respondent/complainant had moved an application for the conversion from lease hold to free hold in respect of aforesaid flat by depositing conversion charges and also furnished requisite documents. It was alleged that as per report of DDA officials, there was misuse of the said property as the respondent/complainant had covered the front courtyard and rear courtyard with RCC slabs. It was alleged that as per conversion policy, the conversion was to be allowed only after removal of misuse and payment of misuse charges, as such the respondent/complainant was asked to deposit Rs.1,25,000/- on account of misuse charges and Rs.20,000/- towards damage charges. It was alleged that since the respondent/complainant had not deposited the aforesaid charges, the conversion was not done.
Both the parties had filed evidence in the form of affidavits.
The Ld. District Forum also considered the surveyor report of the Engineer of the OP dated 14.7.05 wherein it was stated that the area of DDA Flats Kalkaji is de-notified and the complete activities have been transferred to MCD. Accordingly the Ld. District Forum held that the demand raised by the appellant/OP was not in accordance with law. It was only the MCD which could have levied the misuse charges. The Ld. District Forum also relied upon the judgement of High Court of Delhi in Engineering & Industrial Corporation vs Union of India & Others, 2007 VIII AD (DELHI) 359 wherein it was held that since there was no provision in lease deed for raising demand for damages of unauthorised construction, the demand raised was illegal. It was also observed that demand was not raised by OP prior to applying for conversion from leasehold to freehold. The Ld. District Forum accordingly allowed the complaint and directed the appellant/OP as under:
"i) The OP shall withdraw the demand of Rs.1,45,000/- raised by letter dated 12.3.2007.
ii) The OP to allow the conversion of the flat No.L-1/132 A, Ground Floor, DDA Flats, Kalkaji within a period of 30 days from today.
iii) The OP shall also pay Rs.15,000/- as compensation for mental agony, torture and sheer suffering including the litigation charges to the complainant.
This shall be complied within 30 days."
Aggrieved with the aforesaid order, present appeal is filed.
Ld. Counsel for the appellant/OP has contended that the premises on inspection was found to be misused by the complainant. It is contended that District Forum failed to appreciate that the inspection of the area was carried out in the present case by officials of DDA and it was found that the premises were being misused by respondent/complainant and as such due to non-payment of misuse charges, conversion had not been done. It is submitted that there is no deficiency in service on the part of the appellant/OP and the impugned order is liable to be set aside.
On the other hand, Ld. Counsel for the respondent/complainant has contended that demand raised by the appellant/OP was illegal. It is submitted that Ld. District Forum in this regard has relied upon the judgement of High Court of Delhi in Engineering & Industrial Corporation vs Union of India & Others, 2007 VIII AD (DELHI) 359, as such there is no illegality in the impugned order.
We have considered the submission made and perused the material on record.
Perusal of impugned order shows that Ld. District Forum has relied upon the inspection report of the flat in question which was done by the Engineer of appellant/OP wherein it has been categorically stated that there is no encroachment on public land presently. It has been further recorded in the said inspection report that the area of DDA Flats Kalkaji is de-notified area and all the complete activities have been transferred to MCD. On the basis of aforesaid report, District Forum has held that misuse charges, if any, could have been levied by MCD only. We totally agree with reasoning of Ld. District Forum. Further the appellant/OP has failed to show any terms and conditions in the lease hold for raising demand for damages of unauthorised construction. It is also not the stand of appellant/OP that alleged demand was raised prior to applying for conversion. The respondent/complainant has also relied upon the judgement of National Commission in D.D.A. vs Vijay Kumar Jasra, 1 (2015) CPJ 273 (NC) wherein the demand of Rs.5,52,000/- on account of misuse charges was quashed by the State Commission. The National Commission has held that the same has been rightly quashed. The relevant para of the judgement is as under:
"On the other hand, learned Counsel for respondent submitted that demand itself was illegal as held by Delhi High Court in 141 (2007) DLT 222=2007 (VIII) AD (Del.) 359, WP(C) No. 11131/2005, decided on 11.5.2007, Engineering & Industrial Corp. (M/s) v. Union of India & Others, which was also placed before learned State Commission. Learned State Commission in the light of aforesaid judgement rightly quashed demand of Rs. 5,52,000 in complaint No. 151/2008 and I do not find any illegality, irregularity or jurisdictional error in the impugned order."
No contrary judgement is pointed out by appellant/OP.
In view of above discussion, we find no illegality in the impugned order passed by the Ld. District Forum. There is no merits in this appeal. Hence the same is dismissed.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge. The record of the District Forum be also sent back forthwith. Thereafter the file be consigned to record room.
(Justice Veena Birbal) President (Salma Noor) Member