DISTRICT CONSUMER DISPUTES REDRESSAL FORUM II

Udyog Sadan, C 22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi 110016

Case No. 330/2015

Shri Hari Chand

S/o Late Shri K.C. Chawla

R/o 10751/14, Pratap Nagar,

Delhi 110007                                                                   ….Complainant

Versus

Delhi Development Authority

Vikas Sadan, I.N.A.

New Delhi

Through its Vice Chairman                                         ….Opposite Party

                                                  Date of Institution      :         08.12.15     Date of Order          :         28.01.19

Coram:

Sh. R.S. Bagri, President

Ms. Naina Bakshi, Member

Ms. Kiran Kaushal, Member

ORDER

Member   Kiran Kaushal

Brief facts as pleaded in the complaint are that:

1. The complainant, Hari Chand had sought allotment of a flat since 09.10.1979. The complainant even before the receipt of the demand cum allotment letter (DAL) had submitted an application dated 15.05.2006 requesting DDA (OP) to allot him a flat only on the ground floor, as being a senior citizen his heath was failing besides due to a serious motor accident he was handicapped.
2. The complainant visited OP’s office with a request to change the floor and locality and upon the advice of dealing assistant the complainant had returned the DAL along with his letter received by DDA on 17.06.2006. Complainant visited OP’s office on many occasions and wrote various letters requesting OP to allot him some flat in any category on the ground floor but to no avail.
3. It is next averred that in response to OP’s letter dated 27.05.2008 requiring the complainant to submit the demanded documents as per the format, the complainant submitted the same accordingly.
4. Complainant further stated that OP vide letter dated 15.02.2008 had informed that the entire initial amount of Rs.4,98,717.97p. along with interest on the late payment stood deposited vide his letter dated 31.12.2007. Also the complainant had deposited the further installments of Rs.4,965/  with effect from 10.10.2006 upto 25.02.2013.
5. It is further stated that the complainant received another letter dated 12.05.2008 from OP wherein he was directed to submit copy of challan for Rs.15,595/  against cost of flat and also to submit the demanded documents which the complainant deposited. Further vide letter dated 22.07.2008 and 10.12.2008, OP again sought the submission of demanded documents along with bank challan of Rs.1500/  which was submitted by the complainant.
6. It is next submitted that the complainant made the payments as and when demanded by OP towards the cost of the flat and finally it is the letter dated 09.03.2008 that OP first time informed the complainant that his request for change of floor from third floor to ground floor could not be acceded. Complainant received another letter dated 25.05.2010 wherein he was required to submit the documents again. Compliance of the said letter was done by the complainant.
7. It is further stated that OP vide its letter dated 16.06.2011 sought reasons for making the late payment and the documents late. The complainant replied the said letter and prayed for condonation of delay. Complainant vide several letters separately requested for issuance of possession letter but to no effect. Complainant was again asked by OP to visit the office and produce such and more documents vide letter dated 07.11.2013, accordingly the complainant went to OP’ office and complied with whatever was stated in the letter.
8. It is next averred that the complainant received another letter dated 21.04.2014 wherein the complainant was directed to deposit Rs.3,73,474/ . The aforesaid amount was deposited by the complainant under protest along with extra payment of Rs.5,000/ vide challans. OP third time demanded the documents from the complainant vide letter dated 02.09.2014.
9. It is further averred that the complainant tracked the payment details on the net which showed that nothing was due from the complainant but still neither the possession nor the demand letter or conveyance deed have been executed and registered by the OP in favour of the complainant, no physical possession of the referred flat had been delivered by OP till date.
10. Alleging unfair trade practice and deficiency in service of OP the complainant approached the Forum with the following prayer:

1. To direct the OP/DDA to issue possession letter in respect of flat No. 749 3^rd Floor, Pocket A, Block B, Lok Nayak Puram, Delhi and also handover vacant peaceful possession thereof  quite in good and habitable conditions alongwith all the basic amenities of water, sanitation an electricity etc. and also the fitting and fixtures thereof and further also to execute a conveyance deed relating to the flat aforesaid in favour of the complainant allottee forthwith because the entire consideration money has already been paid to DDA.
2.  To pass an award in the sum of Rs.17,02,168/  on account of excess payment recovered by DDA and also for compensation on account of mental agony, harassment, torture and compensation for rental losses etc. as referred above, in favour of the complainant and against the OP.
3. To award costs of litigation and expenses as may be deemed fit and proper.
4. Also to award interest @ 2% p.m with daily rest on the amount so ordered/decreed, form the date of complaint till realization.

2. OP resisted the complaint inter alia by taking preliminary objections on the ground that the present complaint is in the nature of recovery and therefore, the same is not maintainable in the eyes of law. OP has raised another objection on the ground that the complainant is not a consumer, as pricing cannot be a subject matter of consumer dispute as per the judgment of DDA vs. A.N. Singhal I (1996) CPJ 34 (NC) and interest is one of the component of price as per judgment of DDA vs. Kamini Chopra I (1996) CPJ (NC). Further OP has relied on the judgment of Skyline vs. State of UP 2008(8) SCC 265 stating that the complainant is not entitled for any relief as the complainant had not deposited the amount of flat allotted within the stipulated time period.
   1. OP submits that Hari Chand/complainant being registered under NPRS 1979, on turn of his priority he was allotted LIG DDA flat No. 749, in the draw held on 23.03.2006 on hire purchase basis. The allotment was subject to terms and conditions given in DAL, brochure and DDA (management and disposal of state) regulations, 1968. There was condition for automatic cancellation of allotment, if initial deposit is not paid upto 16.01.2007.
   2. It is next submitted that the complainant requested for allotment of ground floor flat but he was requested to submit the medical certificate from Government hospitals vide letter dated 05.09.2006, 30.010.2006 and 04.01.2010 and to deposit the cost of the flat as per DAL vide letter dated 04.03.2008. No medical certificate has ever been submitted by the complainant. It is next submitted that the complainant paid the OP in piece meal and as per his convenience and not as per the schedule of payment as mentioned in DAL but as per his whims and fancies. It is further submitted by the OP that the competent authority condoned the delay of payment as the complainant requested being physically handicapped and senior citizen aged 73 years he could not make payment on time. The competent authority regularized the delay of 518 days in making the payment and 710 days for submission of documents on 02.07.2014.
   3. It is next submitted that after completing the formalities the possession letter/NOC was issued to the complainant on 24.02.16 and the same was sent to him at his address which was received back undelivered to OP. It is further submitted that the OP has already issued possession letter/NOC to the Allottee/Complainant with the request to contact site divisional office of OP for taking over the physical possession of the same vide letter dated 24.02.16.
   4. It is therefore submitted that there is no deficiency in service on the part of the OP but it is the complainant who caused delay in depositing the demanded amount and documents as per terms and conditions of the DAL and completion of formalities, therefore it is prayed that the complaint be dismissed with exemplary cost.
3. Rejoinder and evidence by way affidavit is filed by the complainant wherein the averments made in the complaint are reiterated. Evidence of Shri R.K. Malhotra, Director (H) II with DDA has been filed on behalf OP.
4. Written arguments have been filed on behalf of the parties.
5. We have heard learned counsel of both the parties and have gone through the record carefully.
6. Before, we go into the merits of the case, we would like to discuss the following prayers of the present complaint.

1. To direct the OP/DDA to issue possession letter in respect of flat No. 749 3^rd Floor, Pocket A, Block B, Lok Nayak Puram, Delhi and also handover vacant peaceful possession thereof  quite in good and habitable conditions alongwith all the basic amenities of water, sanitation an electricity etc. and also the fitting and fixtures thereof and further also to execute a conveyance deed relating to the flat aforesaid in favour of the complainant/ allottee forthwith because the entire consideration money has already been paid to DDA.
2.  To pass an award in the sum of Rs.17,02,168/  on account of excess payment recovered by DDA and also for compensation on account of mental agony, harassment, torture and compensation for rental losses etc. as referred above, in favour of the complainant and against the OP.
3. To award costs of litigation and expenses as may be deemed fit and proper.
4. Also to award interest @ 2% p.m with daily rest on the amount so ordered/decreed, form the date of complaint till realization.

7.       As regards the first prayer, during the course of proceedings of the present complaint, the complainant was handed over the possession of the disputed flat. The complainant has signed the possession slip dated 19.05.2016 without any protest  thereby the possession of the flat in question has already been taken by the complainant along with necessary fitting fixtures. The possession slip is exhibited as Exhibit OPW1/16. Relevant portion of the possession slip is reproduced herein below:

                                      POSSESSION SLIP

           The physical possession of Flat No. 749 Floor 3 category LIG, Pocket A at Lok Nayak Puram (Bakkarwala) Housing Scheme is he handed over to Mr. Hari Chand S/o Karam Chand on today i.e. dated 19.05.2016 along with necessary fitting fixtures and that no defects are apparent.  

From the possession slip, it is evident that the possession of the allotted flat was taken over by the complainant on 19.05.2016 without any protest.

8.       The averment made by the complainant that he being an illiterate person signed on the possession slip without reading / understanding the contents of the possession slip are not very convincing, as the numerous letters written by him to OP speak volumes about him not being illiterate or naive. Further we abide by the findings of Hon’ble National Commission in Harpal Arya vs. Housing Board (2016) CPJ 36) that after possession is taken, the applicant does not remain a consumer. Therefore, having taken the possession of the allotted flat without any protest, the complainant ceases to be a consumer and the miscellaneous applications put in after taking the possession loose their relevance.  

                   Prayer (1) of the complainant is accordingly declined.

9.       As regards the prayer (2), the complainant claims to have suffered losses due to following factors, acts and deeds of OP:

i.  Amount paid on 12.05.18                       :         Rs.15,595/

ii. Amount paid on 05.06.08                       :         Rs.14,595/

iii. MI (month installments)                        :         Rs.1,43,985/

iv. Penalty                                                   :         Rs.59,009/

v. Interest                                                    :         Rs.1,55,464/

vi. Restoration charges                               :         Rs.10,000/

vii. Extra charges                                        :         Rs.5,020/

viii. Loss by way of rentals spent by

                complainant during the period 

      1.08.08 to 01.12.15 (88 months

       X Rs.9000 p.m.)                                   :     Rs.7,92,000

ix. Compensation for mental agony,

    harassment, torture and humiliation      :     Rs.5,00,000/

x. Expenses on correspondence                           

    and follow ups                                         :        Rs.14,690/

xi. Advocate fees                                          :         Rs.22,000/

                             Total                                    Rs.17,02,168/

Now as regards, the sum of Rs.17,02,168/  on account of excess payment recovered by OP to be refunded. The contention of the complainant is that the amount of Rs.15,595/  and Rs.14,595/  was paid on 12.05.2008 and 05.06.2008 respectively. It is noticed that the complainant paid the said amount to OP vide challans towards the cost of flat which is admitted by the complainant in his letter dated 05.07.2011 addressed to OP, annexed with the complaint and is marked as Mark A for the sake of identification.

10.     Remaining charges i.e. monthly installments, penalty, interest, restoration charges, extra charges are all self explanatory which require no explanation as OP being an autonomous body constituted under a statute  the accounts of the OP are duly maintained and audited. Hence this Forum has no reasons to believe that the amount charged by OP and deposited by the complainant vide challans would have been unauthorizedly pocketed by OP.  It is noticed that the amount of Rs.17,02,168/  sought  to be refunded has  the components of  M.I, penalty, interest, restoration charges etc. which are towards pricing of the flat and therefore not covered under consumer dispute in view of the law cited in Singhal’s case (supra). Since the flat of the complainant already stands allotted during the pendency of complaint and amount towards cost of the flat i.e. M.I and the amounts of Rs.14,595/  & Rs.14,595/  can by no stretch of imagination be sought to be refunded.  

11.     Therefore, in view of the discussion above, the complaint is dismissed as the main dispute between the parties stands ousted from the jurisdiction of Consumer Protection Act.

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 28.01.19.