DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No. 80/2008
Dayal Chand Gandhi
S/o Sh. Sadhu Ram Gandhi
R/o 276 R, Model Town,
Sonepat ….Complainant
Versus
1. Delhi Development Authority
through its Vice Chairman
I.N.A., Vikas Sadan,
New Delhi
2. Commissioner (Housing)
Delhi Development Authority
I.N.A., Vikas Sadan,
New Delhi ……Opposite Parties
Date of Institution : 06.02.2008 Date of Order : 30.07.2016
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
Sh. S.S. Fonia, Member
O R D E R
S.S. FONIA, MEMBER
Succinctly narrated, the case of the complainant is that he applied for residential flat in response to the advertisement published by OPs under the title “New Pattern Registration Scheme (NPRS) 1979”. The said application was made by the complainant under the 4th Registration Scheme on New Pattern 1979 (HUDCO) in respect of MIG Flat vide Registration No. 41059, Book No. 1585, Sl. No. 158420 issued on 29.9.1979 showing deposit of sum of Rs. 4500/-. The said amount was credited to the DDA vide Challan No. Z-224712 dated 22.9.1979. Complainant states that after expiry of over 23 years, the complainant was declared successful through a Draw of Lots and the fact of drawal and allotment of MIG Flat bearing No. 24, Sector 17, Pocket D, Floor IIIrd, Dwarka, New Delhi came to his notice only upon receiving a show-cause notice bearing No. 312/460/002/DW/NP/357 dated 28.1.2003. In the said notice, it was made known to the complainant that an amount of Rs. 20,000/- is required to be deposited by way of confirmatory amount. The said notice further pointed out that the Demand-cum-allotment letter was issued to the complainant on 28.3.2002 and the complainant was required to furnish the documents by 26.6.2002. The complainant was further called upon to comply with and furnish the prescribed documents within a period of 15 days otherwise the allotment of flat shall be cancelled without any reference inter-alia. The complainant states that since he was neither served nor had received the allotment letter dated 28.3.2002 along with the terms and conditions of the documents he was left with no alternative but to request the competent authority to supply authenticated copy of the particulars of the draw and Demand-cum-allotment letter dated 28.3.2002. He further requested the OPs that the above said notice dated 28.1.2003 may be withdrawn and to issue the Demand-cum-allotment letter so that he could comply with the terms and conditions and furnish the relevant documents. The complainant in the interim period further remitted a sum of Rs. 20,000/- by way of Demand Draft No. 8694 dated 7.2.2003 in favour of DDA. The copies of notice dated 28.1.2003 and reply dated 3.2.2003 are annexed as Ex C-5 & Ex. C-6 respectively. However, the complainant did not receive any communication from the OPs for considerable period of time and his request remained unattended up till 10.4.2003. He further states that in the letter dated 10.4.2003 instead of making the matter simpler and sending the complainant a duly authenticated copy of letter of demand-cum-allotment, the OPs took different position presuming that if the communication is not received back by the OPs undelivered, it has been presumed to have been delivered. In this case, the OPs themselves being issuing authorities of the alleged letter are/were under a legal obligation to facilitate the matter for early compliance. The complainant further draws attention of this forum to appreciate the fact that “in absence of the original letter of demand-cum-allotment or duly authenticated copy thereof by the competent authority, a person becomes handicapped even to raise financial assistance from any lending financial institution/bank which the complainant could not take the loan to pay to the respondent in respect of the said flat”. The complainant further states that the photocopy of the demand-cum-allotment letter which was sent to the address of the complainant was not received along with letter dated 10.4.2003 from the OPs. The complainant again in response to the letter dated 31.3.2004 of OPs is said to have sent various sums of money to the OPs in so called discharge of his obligation. As brought out in Para 10 of his complaint, he has given details of having remitted the following amounts:
- Draft No. 562030 dated 12.3.2005 for Rs. 30,000/-
- Draft No. 431354 dated 16.6.2005 for Rs. 15,000/-
- Draft No. 294815 dated 20.6.2005 for Rs. 23,430/-
- Cheque No. 374126 dated 17.9.2005 for Rs. 34,215/-
The complainant made detailed representation to the Commissioner (Housing) OP-2 vide his application dated 2.1.2006 but, however, he was surprised to receive letter dated 7.2.2006 returning the drafts and cheques to him. He further alleges that OPs violated the principle of natural justice by not giving the notice subsequent to notice dated 28.6.2003. Blaming unfair trade practice and deficiency in service, the complainant has invoked jurisdiction of this forum for redressal of his grievance to restore the allotment of flat No. 24, Sector 17, Pocket D, Floor IIIrd, Dwarka, New Delhi and also to pay Rs. 2 Lacs towards compensation causing mental torture and harassment to him.
The OPs have filed written statement denying the complaint on various grounds. It is stated that demand-cum-allotment letter dated 22.3.2002 - 28.3.2002 was issued to the complainant with a request to deposit the cost of the flat as per schedule mentioned therein. The last dates of making the payment of confirmation amount and initial deposit were 27.4.2002 and 26.6.2002 respectively failing which there was automatic cancellation. Accordingly, upon failure by the complainant to act upon the demand-cum-allotment letter a show-cause notice was issued to him on 28.1.2003 which was replied by the complainant vide letter dated 8.2.2003 stating that he had not received any demand-cum-allotment letter and requested to issue the same. OPs further states that in response to complainant’s letter dated 8.2.2003, it was replied to him vide letter dated 10.4.2003 that demand-cum-allotment letter had been issued to him on 28.3.2002 and the same was never received back un-delivered. However, photocopy of demand-cum-allotment letter dated 28.3.2002 was sent to the complainant vide letter dated 10.4.2003 with a request to comply with the terms and conditions of the allotment letter. The OPs have also stated that the result of draw held on 13.2.2002 was published in the Delhi National Newspapers and the same was also displayed on the notice board of the DDA. The stand of OPs is that demand-cum-allotment letter sent to the complainant by post was not received back un-delivered and, therefore, the same is presumed to have been served upon the complainant. With regard to remitting of various amounts as stated in Para 10 of the complaint, it is stated that the OPs cancelled the allotment of flat vide letter dated 7.2.2006 and the bank draft/cheques were returned in original to the complainant and the complainant was requested for getting refund of deposited money as well as registration money which the complainant has failed to do.
The complainant has filed rejoinder reiterating the contents of the complaint made by him. However, he has not denied about the receipt of photocopy of demand-cum-allotment letter alongwith reply dated 10.4.2003 by the OPs. Rather, his version is that in the absence of original demand-cum-allotment letter or an authenticated copy thereof he remained absolutely in dark.
The complainant has filed his own affidavit in evidence and relied upon the Ex. C1/1 to Ex. C1/15. On the other hand, Sh. O.P. Gupta, Director (H) II of OPs has filed affidavit in evidence on 1.7.2009 relying upon Ex. RW1/1 to Ex. RW1/5. The OPs have adduced additional evidence by way of affidavit on 21.9.2015 relying upon Ex. RW1/1 to RW1/6 & RW1/7 Collectively.
Written arguments have been filed on behalf of the complainant. Complainant has relied upon following judgments:
- M/s Transport Corporation of India Ltd. Vs. M/s Veljan Hydrair
Ltd., Civil Appeal No. 3096 of 2005, decided on 22.2.2007 : 2007 (2) RCR Civil Page 587 relying the case of Patiala Roadways Ltd Vs. Birla Yamaha Ltd., 2000 (4) SCC 91.
2. V.N. Bharat Vs DDA & Anr., Civil Appeal No. 1373/2006 – 2009 (1) CPC decided on 2.9.2008.
3. Bacchaj Nahar Vs Nilima Mandal and Anr., Civil Appeal No. 57899-5799 of 2008 decided on 23.9.2008
- Sandeep Ghandotra Vs DDA, Complaint No. 230 of 2007 decided on 16.4.2013
- Indian Oil Corp. Vs SPS Engineering Ltd, 128 (2006) Delhi Law Times 417 (DB) – LPA 916 of 2004 – decided on 3.3.2006
- Mrs. Usha Saikia Vs DDA, WP (C) 266/2007 dated 8.1.2007.
OP has filed written arguments relying upon the following judgment:
- DDA Vs Sunil Bharti, RP No. 800 of 2009 (NC) decided on 13.8.2009
- Sky Line Contractor Pvt. Ltd. Vs. State of UP, 2008 AIR 3103 : 2008 (8) SCC 264
- UT Chandigarh Admn. & Ors Vs Amarjit Singh & Ors, 2009 CTJ 486 (SC)
- State Consumer Disputes Redressal Commission Vs Sudesh
We have heard the arguments of both the parties and have also gone through documents and material on record very carefully along with copies of judgments relied upon by the parties in their written arguments.
Now, we straightway advert to the issues, whether the relief prayed for is admissible or not?
Admittedly, the complainant was registered for allotment of MIG flat vide his application dated 29.9.1979 and was allotted a priority No. 31837 against Registration No. 41059. As per the copy of the results of draw in Ex. RW1/7 the complainant under priority No. 31837 was successful allottee under the computerized draw held on 13.2.2002. The main issue raised by the complainant is that he came to know about the allotment of the flat only on receipt of show-cause notice dated 20.1.2003 (Ex. C-5) in which he was called upon to show-cause within 15 days from the date of issue of this letter/notice as to why the allotment of the said plot be not cancelled for breach of terms and conditions of allotment. The complainant replied to the said show-cause notice vide his letter dated 3.2.2003 stated by that he was yet to receive the demand-cum-allotment letter dated 28.3.2002 which he had been awaiting for more than 23 years. Along with this reply the complainant enclosed DD No. 86924 dated 7.2.2003 amounting to Rs. 20,000/- on account of payment of confirmation charges. OPs vide letter dated 10.4.2003 stated that the allotment letter dated 28.3.2002 had never been received un-delivered from his address with further directions to comply with the terms and conditions of the allotment letter and a photocopy of demand-cum-allotment letter was attached with this letter (Ex. C7). The complainant responded to the said letter by drawing the attention of OPs to the fact that he had already remitted Rs. 20,000/- by DD No. 869241 dated 7.2.2003 and he also requested them to send duly attested copy of demand-cum-allotment letter for his record emphasizing that DD of Rs. 20,000/- stood already encashed by the OPs. He further submitted representation to OPs vide his letter dated 10.1.2004 (Ex. C-10) requesting for supplying terms and conditions of the allotment and attested copy of demand-cum-allotment letter for completing various formalities and also to avail loan from financial institutions. OPs are said to have sent letter dated 31.3.2004 emphasizing that the demand-cum-allotment letter which had not been received back un-delivered, however, a photocopy of the same was sent to the complainant on 19.6.2003. He was further asked to attend the office of the OPs on any working day along with relevant proof of his identity (Ex. C11). The complainant vide his letter dated 22.6.2005 responded to the aforesaid letter by enclosing therewith DD No. 562030 dated 12.3.2005 for Rs. 30,000/-, DD No. 431354 for Rs. 15,000/- dated 16.6.2005 and DD No. 294815 for Rs. 23,430/- and also brought to their notice that said amount was sent to OPs which have fallen due in respect of above flat and also expressing his inability to raise loan for want of original demand-cum-allotment letter. Again he issued letter dated 17.9.2005 to the OPs sending a cheque for Rs. 34,215/- dated 17.9.2005 towards instalment and further pointing out that he has not heard anything for working out of interest, if any. He further submitted a representation dated 2.1.2006 (Ex. C-15) bringing out that on his visit to office of the OPs he came to know that allotment of flat stood cancelled on 31.10.2005 without any show-cause notice to the applicant. He, therefore, requested the Commissioner (H) OP-2 for reviewing the matter and restore the allotment expressing his willingness to pay the entire amount till date of his application. Admittedly, the allotment of the flat in question was cancelled vide letter dated 7.2.2006 and the various bank drafts amounting to Rs. 30,000/-, Rs. 15,000/-, Rs. 23,430/- and Rs. 34,215/- were returned to him in original along with advice to the complainant to apply for refund of deposited money as well as registration money. Thus, the representation of complainant to OPs fell on deaf ears.
The moot point which arises for consideration by this Forum is veracity of statement of OPs in Para 6 of their reply that “demand-cum-allotment letter was duly sent to the complainant at the correct address and the complainant was bound by the terms and conditions contained therein”. This stand of OPs is bereft of any documentary evidence in support of having sent the demand-cum-allotment letter dated 28.3.2002 by a mode of transmission i.e. courier/registered letter/speed post so much so that the organizations like OPs are expected to come with clean hands by exhibiting the original post receipt of speed post/registered post/courier which the OPs have chosen to remain silent. Therefore, the OPs have failed to prove beyond reasonable doubt the dispatch of demand-cum-allotment letter to the complainant. It is pertinent to note that the affidavit of Director (H)-II of OPs dated 1.7.2009 does not exhibit credible evidence of receipt of postal authority/courier authority in support of having sent the demand-cum-allotment letter. The only evidence tendered by the OP is extract of article books by DDA on 1.4.2002 to the complainant which is a document generated by the OPs and in absence of receipt of postal authority it cannot be accepted as credible evidence. It is also intriguing to note that the OPs filed additional evidence on 21.9.2015 exhibiting there with documents seized by the CBI and extract of dispatch which is again document generated by the OPs and does not reveal the post receipt from postal authority/courier. This evidence at the belated stage of filing after six years of first evidence also speaks about conduct of the OPs in proving their bonafide intention. As per Regulation 31 of DDA of 1968 intimation about allotment shall be sent to all persons selected for allotment whose names have been entered in the allotment register.
Though the OPs have sent a public notice through publication in newspaper yet in terms of decision of the Delhi High Court in WP (C) No. 266 of 2007 decided on 8.1.2007 in the matter of Mrs. Usha Saikia Vs DDA, Public notices are not substitute for individual notices.
As regards the plea of OPs regarding dispatch of demand-cum-allotment letter, it would be pertinent to rely upon the observations of Delhi State Consumer Disputes Redressal Commission in Complaint No. 230/2007 decided on 16.4.2013 between Sandeep Ghandotra Vs DDA wherein the Hon’ble Commission was not hesitant in observing that “the officers/officials of the DDA with a malafied intention do not sent the demand-cum-allotment letter, show-cause notice or cancellation letter to the allottee and his dream of residing in a flat disappear and cause gross harassment and mental agony and sheer suffering”. Further, Hon’ble Apex Court in Civil Appeal No. 1373 of 2006 titled as V.N. BHARAT Vs DDA & Anr. decided on 2.9.2008 in dealing with issue of demand notice has inter-alia observed in Para 20 of the judgment that “In our view the Commission also erred in placing the onus of proof of service of the demand notice on the appellant, since except for denial there is nothing else that the appellant could have produced to prove a negative fact. As we have indicated hereinbefore, the presumption under Section 114(f) of the Evidence Act is a rebuttable presumption and on denial of receipt of the Registered letter from DDA the appellant discharged his onus and the onus reverted back to the respondent to prove such service by either examining the postal authorities or obtaining a certificate from them showing that the registered article had been delivered to and had been received by the appellant”.
As regards the issue of show-cause notice by the OP dated 20.1.2003, we are constrained to observe that after the issue of show-cause notice the complainant had made various representations and final representation to OPs dated 2.1.2006 and also deposited the various amounts due to him but the OPs in utter disregard to the principles of natural justice failed to give reasoned order to the representations/submissions made by the complainant. The complainant has clearly brought out about his representation dated 2.1.2006 to OP-2 in Para 12 of his complaint but the OPs have not specifically denied about the disposal of this representation in their written statement rather they have denied the contents of Para 8 to 12 in a mechanized way. The Hon’ble Delhi High Court in Indian Oil Corporation Ltd Vs SPS Engineering Ltd., 128 (2006) Delhi Law Times 417 (DB) – LPA 916 of 2004 has inter-alia held in Para 21 of the judgment that “It is well settled that natural justice requires reasons to be given”. In the case at hand the authorities were required to give detailed reasons before cancellation of the allotment vide their letter dated 7.2.2006 whereas in this letter the authorities have simply returned various amounts to the complainant by stating that “the aforesaid flat allotted to you in the draw held on 13.2.2002 on Hire Purchase Basis has been cancelled as you have not complied with the terms and conditions of the allotment letter dated 28.3.2002”. The OPs in their written arguments have mainly defended their stand by insisting upon the issue of demand-cum-allotment letter under the presumption that since the same did not come back un-delivered it was presumed that it had been delivered. However, we find from the evidence on record that number of letters have been exchanged between the complainant and the OPs but the OPs have not followed the principles of natural justice by giving self speaking reasoned order before cancelling the allotment of flat vide their letter dated 7.2.2006. We find that the OPs instead of issuing duplicate demand-cum-allotment letter to the complainant had been asking complainant to visit their office. On the other hand, complainant had demonstrated his intention to abide by the terms of the demand-cum-allotment letter by remitting various amounts to the OPs. In our considered opinion, one of the reasons for cancellation of allotment could have been demonstration of dispatch of demand-cum-allotment letter by citing the receipt number of postal authority/courier company inter-alia. It is also relevant to point out that if the show-cause notice was delivered to the complainant at the same address, how could the demand-cum-allotment letter was not delivered?
Various judgments relied upon by the OPs have been gone through by us but are not strictly germane to the facts of the case.
We would also like to point out that the OPs are said to have given photocopy of demand-cum-allotment letter vide their letter dated 31.3.2003 which was of no use to complainant and it did not meet the requirement of raising the loan from the financial institutions.
In view of above discussion, we allow the complaint and hold OPs guilty of deficiency in service to the extent that the demand-cum-allotment letter said to have been dispatched to the complainant on 28.3.2002 was not dispatched which resulted in the deprivation of allotment of flat to the complainant as well as harassment in pursing the matter. Accordingly, we direct the OPs to issue fresh demand-cum-allotment letter to the complainant at the then prevalent cost on 20.3.2002-28.3.2002 in and around Dwarka area within one month from the receipt of copy of this order under registered AD cover/speed post. The complainant shall deposit the entire amount in lumpsum and the OPs shall then allotted a MIG flat of the same size to the complainant in and around Dwarka area within 60 days of receipt of entire cost money from the complainant. We are also constrained to direct the OPs to pay a sum of Rs. 75,000/- (Rupees Seventy Five Thousand only) for causing mental agony and harassment to the complainant (who is now above 73 years of age and who had to undergo this trauma for the last 37 years) within 60 days from the date of receipt of copy of this order failing which OPs shall become liable to pay Rs. 75,000/- (Rupees Seventy Five Thousand only) along with interest @ Rs. 7% p.a. from the date of this order till realization.
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 30.07.16.
(S.S. FONIA) (NAINA BAKSHI) (N.K. GOEL) MEMBER MEMBER PRESIDENT
