DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi- 110016

Case No.501/2012

Sh. Baldev Sharma

S/o Sh. Dharambir Sharma

R/o Village Sehnoli, P.O Hassanpur,

Tehsil Hodal, Distt. Palwal

At present R/o H. No.2663, GF,

Sector-3, Housing Board Colony

Faridabad-121004

….Complainant

Versus

1. Delhi Development Authority,

D-Block, Vikas Sadan, New Delhi-110023

Through its Asst. Director (Housing) LIG Department

2. Asst. Director (Housing) LIG Department

Delhi Development Authority,

D-Block, Vikas Sadan, New Delhi-110023

3. Ms. Varsha Sinha Director (H)-II

Delhi Development Authority,

D-Block, Vikas Sadan, New Delhi-110023

4. The Chief Engineer, East Zone

Delhi Development Authority,

Vikas Minar, New Delhi

5. The Chief Engineer Electrical

Delhi Development Authority,

Vasant Kunj, New Delhi

        ….Opposite Parties

    Date of Institution     : 25.09.2012       

    Date of Order            : 14.10.2022      

Coram:

Ms. Monika A Srivastava, President

Ms. Kiran Kaushal, Member

Sh. U.K. Tyagi, Member

ORDER

Member: Sh. U.K Tyagi

1.      Complainant has prayed for passing an award directing the DDA (hereinafter referred to as OP) (a) to provide civic amenities such as water connection, sewerage connection and electricity connection in Flat No.G-009 of Ground Floor, Pocket-C, Block-G, in LIG category at Molar Band, New Delhi and to handover the complete and actual, physical possession of the flat with all fittings and fixtures forthwith and other development work on the site may kindly be completed as per the site plan; (b) to execute and get registered conveyance deed of the flat i.e. No.G-009 of Ground Floor, Pocket-C, Block-G, of LIG category at Molar Band, New Delhi; (c) either to pay and release the 18% interest p.a. on Rs.19,42,345/- from the date of deposit i.e.
28-11.2011 till its actual realization to the complainant or to pay and release compound interest @15% p.a on Rs.19,42,345/- from 28-11-2011 till actual realization as contained in  DDA Housing Scheme 2010, para No.14 of the Brochure to the complaint attached; (d)  to pay the loss of monthly rental income of Rs.20,000/- p.m. from 01.12.2011 till actual payment of amount to the complainant; (e) to pay the damages of Rs.5,00,000/- on account of loss of interest, rental income and on account of causing great mental tension, agony and harassment and not providing the above said mandatory civic amenities water connection, electricity connection in the flat by the respondents and the respondents have not completed other development works as per the approved site plan of DDA till today; (f) also to pay Rs.11,000/- as cost of litigation; (g) Any other relief deemed just and proper may also be awarded to the complainant with cost of complaint.

2. Brief history of the case is as under:-

The Complainant vide his application dated 23.12.2010 has applied for allotment of flat under DDA Housing Scheme, 2010. The Complainant was declared successful for the allotment of LIG Flat No.9, Pocket C, Block-G, Molar Band in a computerized draw held on 18.04.2011 on cash down basis. The DAL (Demand-Cum-Allotment) was issued to him on 30.08.2011 directing to deposit the cost of flat as per payment schedule mentioned therein. On the receipt of demanded cost of flat and requisite documents, the possession letter of flat was issued to the complainant on 07.06.2012. The complainant made complaints dated 06.12.2011 and 18.01.2012 regarding incomplete engineering works i.e. no sewerage /water tank, electricity etc.  Accordingly, the above said complaints of the complainant’s were forwarded vide letter dated 29.02.2012 to Chief Engineer, East Zone, DDA by Director, H-II, of the OP. The possession of the flat was handed over on 22.06.2012.  On 30.11.2012, the Complainant visited the spot and found the following shortcomings:-

1. No development work has been made by the DDA at the site as per the approved site plan of DDA at Molar Band, New Delhi.
2. There is no electric pole/khamba at DDA flats as per site plan of the DDA department.
3. There is no sewerage connection.
4. There is no water tank connection.
5. There is no tubewell connection to supply the water into the water tank or supply the water in the DDA flats in Molar Band, New Delhi
6. The road/streets has not been built up completely as per site plan of the DDA flats in Molar Band, New Delhi
7. There is no facility of street lights in the DDA flats.
8. There is no facility of parking for vehicles in the DDA flats in Molar Band , New Delhi
9. No community centre  has been constructed as per the site plan of DDA flats in Molar Band, New Delhi.

3.      The complainant had written many letters dated 02.04.2012 & 21.05.2012 exhibit at C-19 to C-22 to OP for handing over the possession of the flat but to no avail. Thereafter, the complainant visited the office of OP and reminded them that he had made full and final payment to the tune of Rs.19,42,345/- including registration and  stamp charges. With great persuasion and constant chasing with the representatives of the OP, the OP handed over the possession of flat on 22.06.2012 with no water, sewer & electricity connections. The same was conveyed to OP vide letters as exhibited at Annexure C-23 to
C- 26. It indicates that the possession of the said flat was given with incomplete work. The photographs as indicated at Annexure C-28 to C-40 of 25.09.2012 and 19.02.2013, established this fact that there were many works to be completed.

4.      The complainant also invoked the Clause 14 of the DDA, Housing Scheme 2010, if the allottee makes default in payment; the OP shall charge interest @15% per annum. On this analogy, the complainant is entitled to recover interest @15% per annum on Rs.19,42,345/- from the date of deposit i.e. 26.11.2011. The OP was under obligation to complete the development work as per site plan upto 31.07.2012. When the complainant visited at the flat, Molarband, no electricity wire, sewer lines, water connection had been laid. The complainant again wrote letters, which may be seen at Annexure 41, 42 & 43.

5.      OP on the other hand, filed its reply inter-alia raising preliminary objections that:- (i) The complaint is liable for rejection on the ground of the time-barred u/s 24A of Consumer Protection Act, 1986 in terms of the judgment of  Kerela Agro Vs Bijoy Kumar 2002 (3) SSC 165.

(ii) the Complainant is not a consumer as defined under section 2(d) (0) of Consumer Protection Act, 1986 and more particularly in terms of Hon’ble Supreme Court judgment of  UT Chandigarh Administration Vs Amarjeet Singh II (2009) CPJ I (SC), as there was no hiring of services of OP within meaning of consumer and as such, complainant is not entitled to invoke the provisions of Consumer Protection Act.

(iii) The complaint filed by complainant is liable for rejection on ground of mis-joinder/non-joinder of parties i.e. BSES & DJB are not made necessary party.

(iv) The delay caused by Electricity Department cannot be justifiably be placed on  Housing Board as these authorities are independent in terms of judgment P. Gopala Subramanium Vs Vice Chairman 1995 CPJ II (NC) 163.

6.      The complainant was allotted flat no.9, Pocket ‘C’ Block G, Molarband in draw held on 18.04.2011. On receipt of demanded cost and requisite documents, the possession letter was issued to the complainant on 07.06.2012. The complainant made representations with regard to non-completion of work at the flat/spot. The possession of the flat was handed over to the complainant on 22.06.2012. All necessary civic amenities like water, sewage, electric connections and electric fitting were available at the time of handing over the possession. There was no delay in giving the physical possession of the flat in question. The booster pump for water supply for LIG flats in Molar Band was completed on 15.06.2012.  The payment to BSES was made by DDA of Rs.1,59,69,470/- vide Cheque no.955222 dated 28.06.2011 towards electrification of the area. Internal electrification is done after possession to avoid any theft of the switches/accessories etc. The OP electrical wing held camp for allottees for electrical services on 16.11.2012.

7.      Hon’ble Saket court stayed the construction of 3^rd Electric Sub-station by in a suit filed by Geetika Khanna, one of allottee. However, the two electric sub-stations were already got constructed and were sufficient for the time being Sewage connection had already been completed long back. Electric connection had been made available earlier and the genset was used for water supply, street light as well. It was also asserted by the OPs that till the time of filing the W.S, out of 690 allottees, 590 allottees have taken possession of flats. Before the permanent connection of electricity by BSES, test report of electricity from JE-Electricity (DDA) is required. Till this period of filing W.S, 310 allottees have approached for test report and 89 allottees got electric connection as well. It was mentioned by OPs that all roads/streets and parking lot have been since been completed. It is also denied that water is not available. It was averred that water is being boosted through booster pumps since 01.09.2012. It is also denied by OPs that there are any cracks in plaster wall and floor at the time of taking possession dated 22.06.2012.

8.      It was further averred that OP has issued letter dated 16.11.2012 to execute the Conveyance Deed but the complainant vide its letter dated 17.11.2012 refused to get the conveyance deed executed. The complainant also stated that due to non-availability of basic amenities, he was unable to shift in the said flat. The OP maintained that he got electric connection by this time and when basic facilities were available, then he cannot take this premise that the complainant was unable to shift. OP further affirmed that he did not wish to shift there. It was also asserted that there was no single complaint from the other allottees of this complex.

9.      Both the parties have filed written submissions and evidence-in-affidavit. Written Statement is on record so is rejoinder. Oral arguments were heard and concluded.

10.    This Commission has gone into the entire gamut of issues and due consideration was given to oral arguments. The complainant all through had maintained that when he visited the site of flats before possession was handed over, lots of civic amenities were not provided at the site and in flats. It has been mentioned that the complainant had made complaints before the various authorities. The complainant himself made visits to the office of OPs many times. The evidence of these visits and complaints are available on record. The complainant had been requesting OPs for completion of work and can be established from the evidences which are annexed here as Annexure which are more than 100.  This Commission had made mention of few annexure here for the sake of brevity but we have perused all those annexure.

11.    After examining the letters of the complainant minutely, it comes out that the allotment letters (DAL) seems to have been issued in advance without ascertaining the fact whether civil work etc had been completed or not. Complainant had at every stage written complaints about the conditions prevailing at the ground. This Commission had also gone into the replies & written submissions of the OPs. The counsel for the OPs had denied almost all the allegations made by complainant. The complainant had gone to the extent of placing photographs of the conditions prevailing at flats which are exhibited at C-28 to C-40. The complainant had very conveniently made available photographs in the form of evidences so as to enable him to portray the conditions prevailing at site. To pursue the issues, the complainant had taken up the matters with the officers concerned by visiting them in person.

12.    At the same time, averments of OPs are also to be believed to some extent that no other allottees except the complainant under reference had pointed out the shortcomings at the site rather complied with the instructions of OPs by associating with for seeking electric test report and visiting the camp organized by DDA for electric and water connections.

13.    The complainant has placed reliance on the following judgment.

1.  UP Avas Evam Vikas Parishad Vs Garmia Shukla (National Consumer Dispute Redressal Commission (1991) CPJ-1
2. DDA Vs R.K Meena, National Consumer Dispute Redressal Commission-II (2009) CPJ 191(NC)
3. Gaziabad Development Authority Vs Dr. R.U Ahmad etc. Uttar Pradesh State Consumer Disputes Redressal Commission 1(2000) CPJ 306.
4. G.D.A Vs Krishna Kumarji 2004(1) Page 479.
5. RTI Application & its reply etc.

14.   In view of the above quoted judgments, the fundamental question had been whether the complainant falls under the definition of “consumer”. The common thread of all this judgment has been that since these boards/authority are created under statute, they shall be as amenable as the private bodies rendering “service” to the public at large. Hence, in no uncertain terms, the relationship of these authorities with complainants is that of “consumer” and are bound to subject to the provisions of Section 2(1) (0) of the CP Act, 1986.

15.   The OP also asserted that the complaint is liable to be out rightly rejected in terms of judgment in the case of  Sushil KR Sharma Vs DDA wherein the  Hon’ble National Commission held that after having taken the possession of the flat, the complainant cannot repudiate the part of transaction  as the  contractual obligation to each other have been fulfilled. The complainant also placed on record copy of judgment of Hon’ble National Commission in the case of DDA Vs RK Meena II (2009) CPJ 191 NC, wherein it is held that offer of possession of flat without basic facilities like water & electricity is no possession.

16.   This Commission has gone into the aspect of this judgment advanced by OP and found that the judgment per se is not applicable as OP has not fulfilled its entire obligation. OP has also placed reliance on the judgment of Kerala Agro Vs Bijoy Kumar stating that the complaint had been filed beyond the period of two years limitation. Hence, the complaint may not be entertained. But it is found that since OP could not provide services as required, therefore, the period of limitation could not be invoked unless the services are provided to the satisfaction of the consumers. There is continuous cause of action as such; the instant case is very well within limitation period. The OP also relied heavily on the judgment of P. Gopala Subramanium Vs VC-1995 CPJ II(NC) 163, the delay caused by the electricity department cannot be justifiably be placed on the OP i.e. DDA. But the OP deposited requisite amount to BSES on 28.06.2011 towards electrification of the area. The BSES might have taken some time in installing electric installations, whereas possession was given to the complainant on 22.06.2012. The OP should have deposited the due amount to BSES much earlier.

17.   In view of these judgments, this Commission after having considered the scope of these judgments is of the considered view that the complainant has tried to place on record, the shortcomings in the services as provided by OPs. The electrical wing of the OP held camp for allottee of these flats at Molar Band on 16.11.2012. The water at these flats could be made available through water booster w.e.f. 01.09.2012 as has been accepted by the OP in its reply.  As such, OPs had been found short of obligations.

18.   Hence, OP is found deficient in service and directed to pay Rs.1,00,000/- for the compensation towards, deficiency in service, mental harassment, litigation cost & other requests as mentioned in prayer of the complaint within 03 months from the date of receipt of this order failing which interest @9% p.a. shall be levied till its realization.

File be consigned to the record room and order be uploaded on the website.