CONSUMER DISPUTES REDRESSAL FORUM-II

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

(Behind Qutub Hotel), New Delhi-110016.

  Case No. 86/12

Mr. Joginder Singh,                                      -Complainant

R/o S-122, Venus Apartment, Sector-9,

Rohini, Delhi – 110085.

                                        Vs.

Vice Chairman, Delhi Development Authority   -Opposite Party

Vikas Sadan, INA, New Delhi – 110023.

                                            Date of Order: 22.4.2014

Coram:

M.C. Mehra, President

Anjum Parveen Alam, Member

                                                O R D E R

M.C. Mehra, President

1. The complainant, by filing this complaint, sought direction against the OP to refund him the mutual exchange charges of Rs. 25,000/-, along with Prop. Gr. Rent of Rs. 1480/- and has further sought direction to pay him the litigation charges of Rs. 20,000/-  and Rs. 1,50,000/- as a compensation for causing harassment and mental agony to him.
2. As per complainant, OP had charged the said amount from the complainant for conversion of his flat S-122 (Lower category to freehold on 1.7.09.  For this purpose, he had paid Rs. 59200/-, the detail of which is given as under:

            Conversion charges                             Rs. 44250/-

            Surcharge 33.3% on Conversion Charges        Rs. 14750/-

            Processing Fee                                    Rs.     200/-

3. As stated above, the main grievance of the complainant is that the OP had verbally demanded and insisted him to deposit a sum of Rs. 25,000/- on account of Mutual Exchange Charges and OP did not explain its justification.  However, complainant through RTI application, confronted with various defects in the circular dated 26.5.08, which was meant for GPA holders on 1.12.09.  The documentary evidence filed by the complainant of the wrong doings of the OP stated that the flat was mutually exchanged within 8 days from higher to lower category, whereas the impugned circular dated 26.5.08 (Annex. A) was applicable, if the exchange was in the same or lower category and beyond one year from the date of confirmation of draw and in such situation a sum of Rs. 25,000/- per flat as mutual exchange charges could be levied.  Complainant, however, stated that in his case, the exchange was done within 8 days from the date of confirmation of draw i.e. from 31.1.1992 to 8.2.1992 and therefore, he was not required to pay any amount on this account because impugned circular dated 26.5.08 did not speak of any specific date instead the words ‘Long back’ were mentioned, which left a scope of ambiguity.  Moreover, the circular dated 26.05.08 meant only for general power of attorney.  Complainant further stated that if DDA wanted to collect mutual exchange charges retrospectively for the period from 1995-96 when the society was built then legislative order/policy framed by the Lt. Governor/Vice Chancellor of the DDA should have been law fully documented and made public. 

4. On notice, OP challenged the mandate of the complaint on the ground that complainant had filed a complaint, which was dismissed by the Forum vide its order dated 9.4.2010; that the contract between parties is a concluded contract; that in the month of July 2009, complainant had  applied for conversion of his said flat from lease hold to free hold on the basis of agreement to sell and power of attorney executed by Sh. Rajeev Verma And Sh. S.K. Budhiraja.  The flat in question bearing No. S-122, Venus Apartment, Plot No. 42, Sector-9, Rohini, New Delhi, was allotted in the name of Sh. S.K. Budhiraja through draw of lot held on 16.11.91 and the same was confirmed on 30.1.92, whereas GPA agreement to sell was executed by Sh. Rajiv Verma.  He had been advised to submit the documents for mutual exchange of the flat along with its mutual exchange charges.  But complainant despite issue of two letters failed to clarify the position and deposit the mutual exchange charges.  However, complainant deposited the said charges of Rs. 25,000/- along with ground rent, thereafter, the conversion was allowed by the competent authority on completion of codal formalities and the conveyance deed papers were issued to the complainant for getting the same adjudicated from Collector of Stamps.  OP has also taken objection that the deposit of mutual exchange charges and ground rent was not for hiring of service as defined u/s 2(1)(o) of the Consumer Protection Act.  Thus, complainant is not a consumer within the meaning of Section 2 (1)(d) of the said Act.  Therefore, his complaint does not come within the ambit and jurisdiction of the Consumer Protection Act nor discloses any cause of action and therefore, prayed for dismissal of the complaint with cost.

5.  Both the parties filed their evidence by way of affidavit and also filed their written arguments, which we have perused. We have also heard the counsels for the parties.

6.  As per the impugned circular dated 26.5.08 (Annex. A), a policy to facilitate  the members of the Society to mutual exchange their flats was laid down, so that such like cases could be considered for regularization of the mutual exchange subject to following relevant  conditions No. (a) & (b):

1. If the mutual exchange took place within same category within a period of one year from the date of confirmation of the draw, Rs. 15,000/- per flat as mutual exchange charges may be charged from the flat holder.
2. If the mutual exchange is in the same or lower category and beyond one year from the date of confirmation of draw, a sum of Rs. 25,000/- per flat as mutual exchange  charges may be charged from both the flat holders.

7. The main grievance of the complainant is that the said circular was not meant to be applied to the case of the complainant.  The mutual exchange charges remained in the womb and took birth only on 4.10.95 for the first time in the History of DDA, then how it could be applied in the case of complainant dated 8.2.1992. In our opinion this contention of the complainant has force.  There was no policy of DDA for mutual exchange of flats after draw of lot in existence during 1985-1986 (when first Society in Delhi was built upto 3.10.95).  During this period, DDA did not exercise any kind of control even to supervise the act of doing of mutual exchange of flats by the Society. There existed no instruction of any nature and, therefore, the question of action or penalty of society for doing mutual exchange was far far away from the thinking of the DDA, before 4.10.95 and, therefore, the said circular dated 26.5.2008 could not be made applicable to the case of the complainant retrospectively.

8. In the instant case, the mutual exchange had taken place on 8.2.92 from 3 bed room flat to 2 bed room flat i.e. from higher to lower category within 8 days from the date of confirmation of the draw by the DDA on 30.1.92 (Annex. L1), whereas the circular in question came into existence on 26.5.08, so, how the said circular could be applicable to the case of the complainant in the retrospective effect made? Apart from it, OP could have charged a sum of Rs. 15,000/- on this account, if the mutual exchange took place within one year and Rs. 25,000/-, if it was made beyond the period of one year.  The mutual exchange of the complainant took place within 8 days, so, how the OP could have charged such amount from the complainant arbitrarily?

9. In view of our finding, we are of the considered opinion that the said circular could not have made applicable to the case of the complainant with retrospective effect. Since OP was in dominating position qua the complainant, so, the complainant was compelled to pay the impugned amount to the OP.

10. So far as other preliminary objection taken by the OP that the complainant is not a consumer as he deposited the impugned amount not for hiring the service of the OP.  But in our opinion, this contention of the OP is not tenable because complainant had not only paid the conversion charges of Rs. 44,250/-, rather also paid Surcharge  @ 33.3% as Rs. 14750/- and processing Fee of Rs. 200/-.  The present complaint has been filed by the complainant only to get the refund of Rs. 25,000/- + Rs. 1480/-, which was charged by the OP by making the wrong interpretation of the impugned circular dated 26.5.08.  Whereas, OP had already charged a total sum of Rs. 59,200/- from the complainant for providing the service of mutual exchange of flats.  Therefore, in our opinion, complainant became a Consumer under section 2(1)(d) and has hired the service of OP under section 2(1)(o) of the Consumer Protection Act.

11. So far as striking of circular in dispute is concerned, this Forum is not required to strike off any provisions of the circular but it has to just interpretate the circular the provisions of and as stated above, our interpretation is quite clear that the said circular cannot be made applicable to the case of the complainant retrospectively.  It is a golden rule of interpretation of the statute that in order to draw the meaning of the statute, in the first instance, literal interpretation should be given to the statute and secondly, no statute can be made applicable for imposing financial burden upon the parties retrospectively without making it specifically.  In the said circular, it was not specifically mentioned that it would be applicable on all the cases with retrospective effect. Therefore, we find a great deficiency on the part of the OP.  We allow this complaint and direct the OP to refund the said amount of Rs. 25,000/- + 1480/- along with interest @ 9% p.a. from the date of its deposit i.e. 1.7.09.  Besides, OP shall also pay a sum of Rs. 50,000/- as compensation for harassment including cost of litigation.

12. OP is also directed to make the compliance of the order within a period of one month from the date of receipt of the order, in order to avoid the use of coercive methods under Sections 25/27 of the Consumer Protection Act, 1986.

13. A copy of this order as per statutory requirement be forwarded to the parties free of charge.  Thereafter, the file be consigned to Record Room.