DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No. 72/2011
Bal Krishan
Through Shri Narendra Talwar
Constituted Attorney
R/o 26, Village Pitampura Market
Delhi - 110034 ….Complainant
Versus
Delhi Development Authority
Through its Vice Chairman
I.N.A., Vikas Sadan,
New Delhi
i .…Opposite Party
Date of Institution : 25.02.2011 Date of Order : 21.09.2016
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
O R D E R
The case of the complainant in the complaint filed through his constituted attorney Sh. Narendra Talwar is that he is working as driver in the DTC w.e.f. 1976; that he registered himself in the hire purchase scheme of the OP for allotment of Janta flat in the year 1979 and he was declared successful in the draw of lots held on 25.3.1989 in pursuance of which he deposited Rs. 250/- which was acknowledged vide receipt No. 42040 dated 11.4.1989; that a demand-cum-allotment letter in respect of the flat bearing No. 13, Block A, Pocket I, Sector 17, Rohini, Delhi was issued to him on 12/20.6.89 and he deposited Rs. 13,762.03p on 11.9.1989 vide Challan No. 750759 in terms of the allotment letter; that, however, OP cancelled the allotment of the said flat without any show-cause notice to him on 20.11.1989 which letter was delivered to him on 20.7.1990 on the ground that he was minor at the time of registration for the scheme; that he made a representation against the cancellation of allotment on 20.7.1990 itself and also submitted a certificate issued by the DTC on 2.7.1992 wherein his date of birth was recorded as 01.07.1945; that, however, the OP did not revoke cancellation of the allotment. As per further details given in the complaint, he filed WP(C ) No. 4806 of 1993 for issuing directions to the OP to handover the possession of the said Janta flat; that during the pendency of the writ petition, in terms of the advertisement of the OP, complainant participated in proceedings before the Lak Adalat without prejudice to his rights in the writ petition on 12.7.1999 and during the course of proceedings on the representation made by the OP that they will deliver the possession of the flat to the complainant on payment of Rs.69,014/-, the complainant deposited the said amount vide Challan No. 179960 dated 5.10.1999; that accordingly the OP issued possession letter of the flat and No objection certificate on 20.12.1999 to the complainant but the physical possession was not handed over to him on account of the mistake committed by the OP in directing the wrong division of Executive Engineer for handing over of the physical possession of the flat in question to the complainant which mistake was admitted by the OP in reply to the CM No. 7267/2005. It is stated that the Ld. Single Judge vide judgment and order dated 24.4.2006 inter-alia held that if the complainant clears the hire purchase instalments together with accrued interest thereon within six months from the date of the order, OP would handover the possession of the flat to the complainant failing which OP would be free to cancel the allotment; that a review petition No. 165 of 2006 filed in the said CWP was dismissed by the Ld. Single Judge on 5.5.2006 against which the complainant filed LPA No. 1127/06 and vide order dated 12.9.2006 the Division Bench of the Hon’ble High Court noted that inspite of the payment of Rs. 82,776.33 made by the complainant under the hire purchase scheme, the OP had not given the possession of the flat and accordingly directed the OP to immediately handover the possession of the flat to the complainant but at the same time it was further observed that “it is a case of sheer highhandedness where we like to impose cost as well as interest on DDA”; that the OP preferred a Special Leave Petition bearing No. 16409/2006 against the order dated 12.9.06 which was dismissed. Paras 22, 23 and 24 of the complaint are reproduced as hereunder:
“22. That the Hon’ble Division Bench of the Hon’ble High Court held that “considering the facts and circumstances of the case, we do not think the appellant can be asked to pay interest as demanded by DDA. Rs. 82,776.33/- has remained with DDA for a long time from 1999 till 2006 and inspite of the assurance given in the Lok Adalat, the Appellant was not given possession of the flat. In fact, Rs. 13,762.83 was paid to DDA in 1989. The possession was given only after the Order dated 12th September, 2006 was passed and that too after the Special Leave petition filed by the DDA was dismissed”. And accordingly, set aside the order passed by the Ld. Single Judge dismissing the petition and inter-alia held that the Opposite Party, DDA will be bound by the order dated 11th August, 1989 passed by the Lok Adalat and will not be entitled to claim any interest from the Complainant and the Complainant will also be abide by the said order and pay the balance amount in equated monthly instalment without interest with the last instalment due and payable on 10th July, 2009. In view thereof, the Hon’ble High Court disposed of the appeal vide its order dated 23.4.2007. The copy of the order dated 23.4.2007 passed by the Hon’ble High Court is annexed herewith as Annexure C-14.
23. The complainant was constrained to challenge the part of the order dated 23.4.2007 of the Division Bench of the Hon’ble High Court of Delhi whereby the Hon’ble Court had directed the Complainant to pay the balance amount in monthly instalment without interest with the last instalment due and payable on 10th July 2009 before the Hon’ble Supreme Court vide SLP(C ) No. 20505 of 2007 (which later became Civil Appeal No. 1038 of 2009 on grant of leave), inter-alia, on the ground that this part of the disposal cost of the flat booked under the hire purchase scheme was Rs. 58,600/- and the said amount was to be paid in 240 monthly instalment of Rs. 570.36/- after being put into possession of the flat in September, 1989 and whereas the Complainant has admittedly paid Rs. 82,776.33 till 5th October, 1989 (including Rs. 13,762.33 on 11.9.1989 and Rs. 69,014/- on 05.10.1999) without being in possession of the flat. It is a settled law that the hire purchase instalment become due and payable when possession is handed over. The possession of the flat was handed over to the Complainant only on 03.10.2006.
24. That the Hon’ble Supreme Court accordingly allowed the Appeal in part and set aside the following directions of the Division Bench of the Hon’ble High Court vide its Order dated 13.02.2009:
“The Appellant will also abide by the said order and pay the balance amount in equated monthly installments without interest with the last installments due and payable on 10.7.09. Amount payable in monthly installments will be communicated to the appellant by the DDA within four weeks from today and appellant will start paying the said installments w.e.f. 01.07.07.”
The copy of the order dated 13.02.2009 by the Hon’ble Supreme Court is annexed herewith as Annexure C-15.”
According to the complainant, he was entitled to the flat on 11.9.1989 on payment of initial amount of Rs. 13,762.33 since the flat was allotted to him under the Hire Purchase Scheme and it shows that he has been wrongfully deprived of the possession of the flat from September 1989 to September 2006 for nearly 17 years and was compelled to live in tenanted premise and also that the OP has deficient in its services towards the complainant. The complainant has claimed rent @ Rs. 2000/- per month from September 1989 to September 2006 and compensation of Rs. 5 Lacs for wrongful deprivation of the possession of the flat and also interest and refund of Rs. 25,000/-(the difference between Rs. 58,000/-& Rs. 83,000/-). OP was served with a legal notice dated 30.10.2010 but in vain. Hence, the present complaint. The prayers of the complainant are as follows:
“a) To refund the amount of Rs.5,82,121.39 (which comprises of Rs. 25,000/- as a difference between Rs. 83,000/- total amount paid and Rs. 58,600/- the cost of the flat the principal amount due and interest amount of Rs. 42,268.82 @ 18% p.a. from 11.9.1989 till 3.10.2006 on Rs. 13,762.33 and interest amount of Rs. 86,889.57 @ 18% p.a. from 05.10.1999 to 03.10.2006 on Rs. 69,014/-, interest amount of Rs. 17,963/- on Rs. 25,000/- from 03.10.2006 till 30.09.2010, rental of Rs. 4,10,000/- @ average rental of Rs. 2,000/- per month from September 1989 to September 2006 and future interest @ 18% from October 2010 onward till the realization of the same.
b. To pay Rs. 5,00,000/- as damages on account of mental agony/harassment and trauma caused by the Opposite Party to the Complainant.
c. To pay Rs. 1,00,000/- on account of deficiency of service on part of the Opposite Party
d. To pay Rs. 1,00,000/- as cost of litigation including legal notice charges, to the Complainant.”
In the written statement, OP has inter-alia stated as under:
“1. That the contract between the parties is a concluded contract. The complainant made the payment in terms of the orders passed by the Hon’ble High Court of Delhi. The possession has been taken by the complainant and the conveyance deed in respect to the flat has also been executed in favour of the complainant on 9.3.10. Since the contract between the parties is a concluded contract, the complainant cannot be permitted to repudiate part of the concluded contract.
It is submitted that on perusal of the documents furnished by the complainant it was found that he had not filled up his date of birth in the Affidavit. However, he had filled up his date of birth as 25.3.63 in the Application-cum-Health Declaration Proforma. As such he was treated as minor at the time of filing the registration application on 3.10.1979 in the NPRS-1979. Therefore, the allotment of above flat was cancelled vide letter dated 20.11.89.
It is submitted that against this cancellation, the applicant represented through letter dated 24.7.90 that he was not minor and requested to issue the possession letter. He also sent a legal notice dated 7.2.92 through his advocate. DDA vide letter dated 23.6.92 requested the General Manager, DTC (where Sh. Bal Krishan was working) to intimate the actual date of birth of Sh. Bal Krishan as per office record. A copy of the above letter was also sent to Sh. D.K. Anand, Advocate and Shri Bal Krishan, who later vide letter dated 3.7.92 furnished a certificate of Date of Birth issued by DTC Depot Manager, Shadipur wherein the date of birth of Shri Bal Krishan was mentioned as 1.7.1945.
It is denied that it is well settled law that hire purchase installment becomes due and payable when possession is handed over. It is submitted that the installments were to be paid as per the schedule contained in the demand cum allotment letter.
The possession of the flat in question was given by DDA to Sh. Bal Krishan on 3.10.2006.
The conveyance deed papers were issued to Shri Bal Krishan on 9.11.2009 with request to get it stamped from the office of Collector of Stamps and also deposit Rs. 412/- towards ground rent service charges. On receipt of the payment and stamped CD papers, the letter of execution of conveyance deed was issued to Shri Bal Krishan on 3.12.2009 with request to appear on any working day between 10.30 AM to 1.00 PM. Shri Bal Krishan appeared on 9.3.2010 for execution of the conveyance deed and accordingly, the conveyance deed was executed on the same day i.e. 9.2.2010 (sic).
It is denied that the complainant was compelled to live in tenanted premises.
It is denied that the complainant is entitled to Rs. 2,000.00 per month on account of rent w.e.f. 1989 to September 2006 as alleged. It is denied that the complainant is entitled to compensation of Rs. 5,00,000.00 as alleged.”
Hence, it is prayed that the complaint be dismissed.
The complainant has filed rejoinder reiterating the averments made in the complaint.
Affidavit of Sh. Narendra Talwar, constituted attorney has been filed in evidence on behalf of complainant. On the other hand, affidavit of Sh. D.K. Gupta, Director (H-I) has been filed in evidence on behalf of OP.
Written arguments have been filed on behalf of the parties.
We have heard the counsel for the parties and have also carefully gone through the record.
It is an admitted fact that the complainant had applied for allotment of a Janta flat with the OP under the Hire Purchase Scheme in the year 1979 and he was declared successful in draw of lot held on 25.3.1989 and he deposited Rs. 250/- in the office of the OP. Thereafter, demand-cum-allotment letter issued to the complainant on 12/20.6.1989 was cancelled because as per records of the OP the complainant was found to be a minor at the time of registration of the scheme. Complainant thereafter made representation against the cancellation of the allotment on 20.7.90 and his employer DTC submitted a certificate of date of birth of the complainant as 01.07.1945 to the OP vide letter dated 2.7.1992 (Annex. C-5).
Admittedly, the complainant deposited Rs. 82,776.33p towards the allotment of the flat with the OP and the possession of the flat in question was handed over to him on 3.10.2006. Therefore, it is clear that after cancellation of the allotment of the flat vide letter dated 20.11.1989 stated to be received by the complainant on 20.7.1990, the complainant submitted his date of birth proof given by his employer to the OP on 02.7.1992 i.e. after lapse of about 3 years. This delay on the part of the complainant cannot be fastened on the part of the OP DDA. The complainant did not challenge regarding overcharging of the price of the flat in question from Rs. 58,600/- (Annex. C-2) to Rs. 82,776.33p in the writ petition or the LPA or the SLP. The complainant did not pay any amount of money to the OP towards interest on the outstanding amount. Therefore, in our considered opinion, the complainant is now estopped from challenging the total price of the flat in question in the consumer complaint and before this forum. He is also not entitled to any interest on any such amount. In this regard reliance is placed on the decision rendered by the National Commission in DDA Vs. A.N. Saigal, I (1996) CPJ 34 (NC) relied on behalf of the OP.
The complainant has not filed any document on the record which may remotely suggest that till getting possession of the flat in question the complainant had been residing in the rented premises or had been paying rent in respect of the tenanted premises. He is a DTC employee which means that he is a government employee. It is a matter of common knowledge that the government employee is paid House Rent Allowance (HRA) if the government employee is not allotted a government accommodation and is living in his own house or in a rented house. Therefore, the complainant ought to have filed his pay certificate to prove that he was not getting any HRA from his department. However, he did not do so. Therefore, the best available evidence which could be provided by the complainant to prove this fact has been withheld by him. Therefore, we are not inclined to believe that the complainant is, infact, entitled to any compensation towards average rental of Rs. 2000/- per month from September 1989 to September 2006.
Suffice it to say that the judgments relied on behalf of the complainant reported as DDA Vs Indra Prakash Katyal, III (2007) CPJ 461 NC, Jain & Co. Vs DDA, 1998 (44) DRJ (DB), T.R.S. Varadan Vs DDA, 65 (1997) Delhi Law Times 333(DB) and Lucknow Development Authority Vs M.K. Gupta, (1994) I Supreme Court Cases 243 do not apply to the facts of the present case.
In view of the above discussion, we hold that the complainant has failed to prove any deficiency in service on the part of the OP. Accordingly, we dismiss the complaint with no order as to costs.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 21 .09.16.
(NAINA BAKSHI) (N.K. GOEL) MEMBER PRESIDENT
Case No. 72/11
21.09.2016
Present – None.
Vide our separate order of even date pronounced, the complaint is dismissed. Let the file be consigned to record room.
(NAINA BAKSHI) (N.K. GOEL) MEMBER PRESIDENT
