1.       The present Revision Petition (RP) has been filed by the Petitioner against Respondent as detailed above, under section 22 of Consumer Protection Act 1986, against the order dated 20.09.2016 of the State Consumer Disputes Redressal Commission, Delhi (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No. 411/2016 in which order dated 08.07.2016 of District Consumer Disputes Redressal Forum-II, New Delhi (hereinafter referred to as District Forum) in Consumer Complaint (CC) No. 1140/2005 was challenged, inter alia praying for setting aside the impugned order dated 30.09.2016 and for directing the OP to (i) give possession of the shop-flat after adjustment of A/c Statement alongwith 18% interest from date of allotment of the period of delay (ii) to pay Rs.1,00,000/- for harassment and mental agony and (iii) to pay Rs.55,000/- as cost of litigation.

2.       While the Revision Petitioner(s) (hereinafter also referred to as  Complainant) was Appellant before the State Commission and Complainant before the District Forum and the Respondent(s) (hereinafter also referred to as  OPs/DDA were Respondents in the said FA/411/2016 before the State Commission and Opposite Parties before the District Forum-II, Qutub Institutional Area, New Delhi in the CC No.1140/2005.

3.       Notice was issued to the Respondent(s) on 29.10.2018.  Parties filed Written Arguments/Synopsis on 04.10.2023 (Petitioner) and 24.02.2023 (Respondent(s) respectively.

4.       Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Forum and other case records are that: -

Petitioner applied for a Shop Office Unit in the scheme of OP, known as FIRST SELF FINANCING SCHEME 1984 (COMMERCIAL FLATS).  She was allotted a Shop Flat No. 105 of 56.65 sq.mts. for which she paid Rs. 262006/- as per the orders of the High Court in LPA No. 805/04  9 (WRIT-PETITION) which was withdrawn with liberty to seek alternate remedy. At the time of application for this shop-Office, the complainant was working in a private company and consequent to allotment the complainant left her job to pursue her livelihood from this Shop-office.  The complainant signed the application form to strictly adhere to the terms and conditions which were not mentioned therein and follow the payment schedule.  The said schedule was a construction linked instalment payment schedule, which made it obligatory on the Respondent to receive the payment according to the schedule, only after a certificate is issued that a particular stage of development/construction is visible on site.  This fact is stated on the application form. The Respondent defaulted in developing the project timely.  Though the Respondent had defaulted in making the project timely but still the applicant acting in his interest issued a cheque for payment as per directions of the Hon’ble High Court.  As a result of the failure of the Respondent to develop the project wherein there were several hindrances, which were created in the construction and development of the project by OP like procedures not completed by OP, the OP exorbitantly raised the price of the said unit which is prohibitive in nature. Hence, the complainant filed complaint before the District Forum.

5.       Vide Order dated  08.07.2016, in the CC No.1140/2005 the District Forum dismissed the complaint with the following observation:-

    “Therefore, in view of the aforesaid twin grounds of not being a consumer within the meaning of section 2 (1) (d) (ii) of the Consumer Protection Act, 1986 and the jurisdiction of this Forum we do not find any reason to allow the complaint.  Accordingly, we dismiss it.”

6.       Aggrieved by the said Order dated 08.07.2016 of District Forum, Petitioner appealed in State Commission and the State Commission vide order dated 30.09.2016 in FA No.411/2016 while dismissing the appeal, passed the following order:-

“8.  It was for the first time in arguments that appellant stated that she was handicapped lady, she initiate to let out the premises on rent for earning income for her livelihood.  I fail to understand how this can be treated as self employment.  Earning from rent does not involve self employment.

9.         The allotment of appellant has already been cancelled in 2006.  Now allotment at original price is beyond comprehension. Price fixation cannot be done by consumer foras.

                        10.       I do not find any infirmity in the order of district forum.

                        11.       Appeal is dismissed in limini.”

7.       Petitioner has challenged the said Order dated 30.09.2016 of the State Commission mainly on following grounds:

1. The District Forum has ignored the facts duly put forward by the complainant in respect of the transaction.  The impugned order has to be set aside as the Commission has not passed a speaking order without justifying the dismissal which should not have been done. The Forum below has itself acknowledged and stressed upon the facts that parties are bound by the terms and conditions of the present case, where the clause of application has been construed as those of an agreement never been kept in mind while passing the order. In view of the above averment the Forum below should have nullified the Commercial aspect and should have then passed an order. The Forum has ignored the fact that OP still acting in a greedy manner and demanding moneys though not eligible when the payment plan stated in the application clearly states that the last instalment shall be payable along with adjustment of interest at the time of possession which was not done.

2. The Commission has failed to appreciate that the parties are bound by the terms of the agreement. The OP should not have cancelled the allotment when the applicant asked for clarification of the prohibitive demand and asking for the verification of the amount of Rs.16,03,195/- which was not done. The Commission by dismissing the Complaint, has permitted the Respondent to take advantage of his own wrong and has in fact rewarded the Respondent for committing breach of its admitted obligations. The District Forum also erred in passing the impugned order as the Respondent has suppressed material facts and stating incorrect facts. The State Commission failed to consider that the Respondent has deliberately concealed the terms and conditions. Despite bringing the terms and conditions on record, District Forum did not consider the same and passed the order in ignorance. The District Forum passed the said order solely on the basis of the averments made by the respondent/OP and therefore the order is liable to be set aside.

3. The District Forum did not consider that it was the complainant who has been aggrieved as the project was a payment linked which remained a non-starter project of the Respondent, the complainant has been facing difficulty in timely possession of the flat and demanding high costs. The District Forum did not consider that based on the commitment on behalf of the Respondent, the complainant has substantial interest in the project and due to default on the part of the Respondent the complainant has suffered a huge loss and have incurred expenses and therefore she was entitled for possession of the said Shop- Office.

4. The impugned order is erroneous as the District Forum should have considered the fact that the consumer is an individual and not a company or a partnership concern and hence eligible to purchase a shop for enhancement of personal income and livelihood which is an admitted policy of OP. The District Forum failed to appreciate that the complainant left her job in a reputed company to pursue a career wherein she was mentally assured of enhancement of income/livelihood.

5. The Forum below failed to appreciate that in a similar matter CC 1137/05 titled BN Chatterjee Vs DDA, the OP allotted and gave possession of the shop and the Complainant then withdrew his complaint but the order has come now 8 years after withdrawal of the plaint.

6. The  Fora below have purposely overlooked the fact that it has passed previous orders on a similar complaint of withdrawal on similar grounds as the OP has already given possession of a similar shop-flat which was also commercial in nature but by an individual.

7. The State Commission has failed to appreciate that there was deficiency of service or negligence on the part of the OP and on the above grounds the acts of omission or commission can be attributed against the OP due to which it can be alleged that the complainant has suffered heavy loss, except for enrichment and enjoyment of the money by the OP belonging to complainant.

8.       Heard counsels of both sides.  Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

8.1     It is contended by the Petitioner that three complaints were filed before the District Forum on 30.12.2005 including complaint No. 1140/2005 and vide order dated 08.07.2016 it was dismissed with the other two.  One complainant Sh. Chatterjee whose complaint was also dismissed in 2016 was given possession of the shop in 2010 even though his complaint was dismissed in 2016 (CC/1137/05).  Vide order dated 08.07.2016 in the Complainant by Swatantar Chopra Vs. DDS the same Forum was directed to re-assess the complaint who was confirmed as a Consumer and the District Forum ordered a refund of the deposited amounts with 18% interest p.a. as promised by DDA in their brochure.  The impugned order which was dismissed in limine, the State Commission upheld the allottee as a consumer and sent the order for re-trial after taking into consideration that complainant is a consumer. A shop was allotted for which the allottee paid Rs.2,62,006/- and as per orders of Hon’ble High Court in LPA NO. 805/2004 which was withdrawn with liberty to seek alternative remedy.  The last installment is payable to DDA in the Construction Linked Payment Plan, which the DDA issues a certificate that a last stage in visible and payment is due.  This fact is mentioned on the application and brochure. The Petitioner further contends that firstly – Bench-1 of the State Commission holds one complainant of the three –A Consumer and B-2 does not hold this complainant to be a consumer.  Consistency of views of various benches being in the same Commission has to be there.  When the facts/circumstances of both the cases are exactly the same and the third complainant (Mr. Chatterjee) is given possession of the shop six years before his complaint is dismissed, secondly- complainant suffers a RP/1232/2022 by OP before this Commission but it was held to be infructuous as the State Commission remanded the matter back to the District Forum who also has disposed the matter in favour of the complainant.

8.2     On the other hand it is contended by the Respondent that the contents of Revision Petition, grounds of Revision, prayer clause is wrong, baseless, misleading, based on mere surmises, conjectures and hence are denied in singular and verbatim.  The petitioner got herself registered under the 2”SFS (Self Financing Scheme) Commercial flat Scheme 1985 and deposited registration amount of Rs.20,000/- on 05.09.1995. Petitioner received letter dated 17.02.2000 stating that she has not submitted her option for place. She replied that she opted in category I Flat. She was allotted flat No. 105 measuring 56.65 sq. mtr. in District Centre Janakpuri, New Delhi in draw of lot held on 07.07.2020. The DDA demanded premium of Rs.16,03,195/-. They preferred CWP No. 7147/2000 before High Court of Delhi and deposited Rs 2,62,006/- as per orders of Hon'ble High Court of Delhi on 15.12.2000. The Writ Petition was dismissed on 16.01.2004. The petitioner preferred LPA No. 805/2004 before the Hon'ble Delhi High Court and the same was dismissed as withdrawn with liberty to take other remedy available under law. Then the complainant filed a Complaint before the District Forum for directing OP/DDA to hand over possession of Commercial Flat No. 27/105, in District Centre, Janakpuri, on original cost with other prayers also. The OP filed its written statement stating that Complainant is not consumer under Consumer Protection Act, 1986. The allotment was pertaining to Commercial purpose and due to non payment, the allotment was cancelled on 18.01.2006 The case was adjudicated by District Commission keeping in view of judicial pronouncement in Pradeep Singh Tayal Vs TDI(2016)CP/219. The allotment of petitioner has already been cancelled in 2006. Now allotment at original price is beyond comprehension. Price fixation cannot be done by Consumer Fora. The State Commission did not find any infirmity in the order of District Forum. The Appeal was dismissed vide order dated 30.09.2016. However, it is submitted that as per letter dated 10.10.2000, the schedule of payment was: (a) 1 INSTALMENT of 50% of the net premium of the flat and (b) 2 installment was 25% of the net amount and 3^rd installment was 25% of net amount plus Ground Rent @1.5% of the premium for one year in advance plus Rs 45/- documentation charges and these schedule of payment was not as submitted by the petitioner. The allottee has deposited only a sum of Rs 2,62,006/- vide challan No.307930 dated 15.12.2000. The amount paid is not even net amount of one instalment of  25% of the premium amount. Hence, the Revisionist is not entitled for any consideration by this Commission. It is also submitted that letter dated 31.12.1992 clearly says that the estimated price per sqm. is likely to be Rs.16488/- for SFS building for plot no.5 and Rs.18145/- for SFS building for plot no.1 & 2 in Janakpuri Distt. Centre and Rs.14839/- in Laxmi Nagar District Centre. These prices are tentative and actual price may vary from the tentative price. The construction was delayed due to contractual difficulties like rescission of the contract. Initially the work was awarded to M/S Subhash & Co. but the work was rescinded and awarded to M/s Hans Const.Co. in feb 90. This agency also failed to complete the work and it was again awarded to M/s D/K Construction in Sep. 93 and it was finally completed in July 95. Hence the delay is justified. The cost of flat in question was worked out by the finance wing of DDA according to rules and regulations at the time of allotment of property in question. The Respondent has placed reliance upon the judgment of Poonam Verma vs DDA 2007(13) SCC 154 whereby it was observed that Applicant is not entitled for allotment after closure of scheme. The Respondent also placed reliance upon the judgment of D M TALWAR vs DDA dated 16.1.2004 whereby it was held that It goes to establish that the price fixation is the solo right of developing authority. As per Brochure of the scheme Escalation in price of flat had already notified by the DDA in its scheme. It is further submitted that when both the Hon'ble Courts came to the same conclusion, then there is no infirmity in the facts of the case.  The petitioner did not indicate that flat in question was being purchased for her source of livelihood. Fixation of price of commercial flat is beyond the jurisdiction of Forum/Commission. Reliance is placed upon Pradeep Singh Tayal vs TDI (I)2016 CPJ219, wherein it was held that mentioning in Rejoinder not sufficient and earning of rent does not involve self employment. Allotment has already been cancelled in the year 2006 and complainant only deposited 2,82,006/- dated 15.12.2000 against the demand of Rs16,10,453/-. Nowhere in the complaint, she has stated that the said commercial flat had been booked for the purpose of earning her livelihood. The observations of the Hon'ble Delhi High court in the written petitions and LPA has attained its finality and the same was not over ruled by any other court. Complicated question of law and facts are involved which cannot be deciding without recording the evidence of the parties. In terms of above facts and circumstances of the case the petition filed by the Petitioner is liable to be dismissed qua Respondent/DDA with exemplary costs.

9.       We have carefully gone through the orders of State Commission, District Forum, other relevant records and rival contentions of the parties.  In this case, there are concurrent findings of both the Fora below against the Petitioner herein.  As was held by the Hon’ble Supreme Court in Rubi Chandra Dutta Vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269], the scope in a Revision Petition is limited. Such powers can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order. In Sunil Kumar Maity Vs. State Bank of India & Ors. [AIR (2022) SC 577]  held that “the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity.” We are in agreement with the contentions of Respondent herein.  Both State Commission and District Forum have given well-reasoned orders.  During the hearing on 20.11.2023, the Counsel for Petitioner stated that flat in question is still available and has not been sold/transferred to any third party.  However, in the affidavit dated 30.11.2023 filed by the Respondent in pursuance to this Commission’s order dated 20.11.2023, the Respondent has clearly stated that the said Shop/Unit in question i.e. 105/2, Ist Floor, at District Centre, Janakpuri, has already been allotted to Atika Sachdeva through auction held on 24.06.2006.

10.     We are in agreement with the findings of State Commission in order dated 30.09.2016. We find no illegality or material irregularity or jurisdictional error in this order, hence, it is upheld.  Accordingly, the Revision Petition is dismissed.

11.     The pending IAs in the case, if any, also stand disposed off.