CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No. 285/2008
Sh. Roshan Lal
S/o Late Sh. Tara Chand
R/o H.No.816, First Floor,
Guru Ram Dass Nagar Extn.
Laxmi Nagar, Delhi-110092 ……Complainant
Versus
Delhi Development Authority
Vikas Sadan, INA,
New Delhi-110023 ……Opposite Party
Date of Institution : 07.05.2008 Date of Order : 24.08.2015
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
O R D E R
Facts are that in pursuance of the registration made by the Complainant with the OP for allotment of a flat under the “New Pattern Residential Scheme, 1979” (in short, NPRS) his name was registered vide registration No.18895 and priority No.42538. When the Complainant changed his address he informed the OP vide his letter dated 22.03.2006 to make necessary changes in their record for future correspondence and OP acknowledged the receipt of the said letter regarding change of address vide receipt No.REC/H/06/10, 078 dated 22.03.2006. On 23.03.2006 a “draw of lots” was held for allotment of flats to the registrants under the NPRS, 1979. In the end of July, 2006 he learnt from some persons/sources that the OP had already sent allotment letters to various successful allottees but when he did not receive allotment letter, then he visited the office of OP to find out the reasons for not issuing allotment letter to him; he was astonished and surprised to learn that the OP had already sent demand–cum-allotment letter vide file No. L/483(1771)2006/NPRS/LN dated 20th July 2006 in his favour at the old address instead of sending it at the new/changed address. When he informed the officers of OP about his request for change in his address which he had already made to the OP vide his letter dated 22.03.2006, the officials of OP had no reply and handed over a copy of the demand–cum-allotment letter dated 20.07.2006 to him for making the compliance of the terms and conditions attached with it. He was allotted a LIG flat No.630, Type B, Pocket B-1 (2nd Floor) in Loknayak Puram on hire purchase basis at a total cost of Rs.8,44,317.77 (as per S.No. B.6 of the allotment letter) and the net total cost was arrived at Rs.8,40,093.98 (as per S.No. B.8 of the allotment letter). As per the allotment letter dated 20.07.2006 a sum of Rs.5,05,093.98 was to be paid as initial deposit and it had also been mentioned that the initial deposit could be paid by 16.01.2007 and the amount payable shall be Rs.5,30,003/- including interest. As per S. No. B.12 of the allotment letter if the initial amount was not paid by 16.01.2007 the allotment shall stand automatically cancelled. Extension of the time could be granted with usual charges (if applied before the last date of payment as per demand-cum-allotment letter) upto three months on 10% of the demanded amount and upto one year on payment of 25% of demanded amount. The complainant has further stated he had applied well in time and requested for extension of time upto one year i.e. upto 16.01.2008 vide letter dated 11.01.2007 before the expiry of last date of payment viz. 16.01.2007. He also sent reminders to the OP vide letter dated 11.01.2007 for change of address in term of his earlier letter/request dated 22.03.2006 so that future communication could be sent at proper changed address to enable him to take timely action in future. On 11.01.2007 he sent a copy of SBI Bank Challan No. 60038 dated 11.01.2007 in token of proof for deposit of 25% charges amounting to Rs.1,32,501 and the same were received in the office of OP vide their acknowledgment No.REC/H/07/1755 dated 11.01.2007 but the OP neither sent any reply nor extension of time for one year was received from OP. He again personally visited the office of the OP despite his ill health/physical disability to enquire about the extension of time and also the balance amount to be deposited. He was shocked and surprised when the officers of the OP verbally informed him that he was given extension of time upto 15.07.2007. They also did not explain the reason or give explanation for not giving extension of time as applied on 11.01.2007 for one year from 16.01.2007. He requested the OP to supply a copy of the said letter of February. 2007 but OP neither gave a copy of the above letter nor they categorically explained the reasons. The officers of the OP vaguely asked him to submit the representation in writing and that they would look into the matter for favourable consideration. He has not received a copy of the letter of February, 2007 till date. He submitted a representation dated 13.11.2007 and inter-alia requested the OP to inform him the amount to be paid by him so that he could take action to deposit the amount. The letter was received and acknowledged by the OP vide their receipt No.REC/H/07/52370 dated 15.11.2007. On 28.12.2007 he received a show cause vide letter No. FF483(1771)06/NP/LN/17391 dated 20.12.2007 which showed that the OP had issued the letter showing extension of time upto 15.7.2007 in a mechanical manner without any application of mind and without looking into the documents submitted by him. They did not consider the previous letters submitted by him such as letter dated 11.01.2007 seeking extension of time for one year by depositing 25% prescribed charges for extension of time for one year and letter dated 13.11.07 received by the OP on 15.11.07 which clearly indicated malafide, negligence, arbitrariness, deficiency in service and unfair trade practice on the part of OP. On receipt of show cause notice he immediately replied explaining the entire position and requested the OP to intimate the remaining amount to be paid by him and also requested them to cancel the show cause notice. The OP vide reply No. LO/483(1771)06/NP/LN/531 dated 24.1.2008 (received on 29.1.2008) simply stated that the request of the Complainant had not been acceded to without specifying any reason. According to the complainant, it is clear that the OP was determined/adamant to deprive him from the allotment of the flat somehow or the other for the reasons best known to them. The complainant has further stated that he met several junior as well as senior officers of the OP but they did not listen to his case. On 27.02.2008 he submitted a representation to the OP which was acknowledged by the OP on 28.02.2008 vide receipt No. REC/H/08/6,595. The OP vide letter No. L/483(1771)06/NP/LN/1868 dated 27/28.03.2008 received on 03.04.2008 arbitrarily rejected the matter and asked him to apply for refund of deposit/registration money by submitting all the original documents without specifying any reason/rule etc. though he had never applied for cancellation/surrender of the flat and had taken all the steps to take allotment as per the terms and conditions. The OP had hurriedly issued the cancellation letter. Pleading deficiency in service on the part of the OP, the complainant has filed the present complaint with the following prayers:-
“(i) Letter dated 3/4/2008 (Annexure C-15) issued by the Opposite Party cancelling the allotment and registration of the Flat of the complainant, may kindly be declared as illegal and the Opposite Party be directed to withdraw the same immediately and revive the case of the complainant for allotment of the flat in question mentioned in their allotment cum demand letter dated 20/7/2006, and
- The Opposite Party may kindly be directed to inform the complainant immediately further amount to be paid by the complainant in view of the Extension of Time for one year sought by the complainant o enable him to deposit the same, and
- The Opposite Party may also kindly be directed to charge any interest and/or penalty etc. from the complainant in view of the fact that it was the Opposite Party who was at fault and there was no fault on the part of the complainant, and
- The Opposite Party may be directed to give possession of the flat to the complainant at the same cost/price and terms and conditions set out in the demand cum allotment letter dated 20/7/2006
- The Opposite Party may also kindly be directed to given compensation amount to Rs.1 lakh (Rupees One lkah only) to the complainant for causing severe harassment, mental agony, humiliation, who had to make several personal visits to the office of the OP and had submitted several written representation.
- Cost of the complaint.”
OP in its written statement has stated that the main grievance of the Complainant is that they have illegally and unlawfully cancelled allotment of flat No.630, Pocket-B1-B at Loknayak Puram, New Delhi which was allotted to him in the draw held on 23.06.2006 on H.P. Basis. Demand–cum-allotment letter was issued to him through UTI Bank dated 20.07.2006 at his address given in the registration record. The said letter was received back undelivered. On 17.08.2006 he appeared in the public hearing and informed that he had not received the demand–cum-allotment letter; the same was handed over to him under acknowledgement. He also informed his changed address. As per the terms and conditions of the demand–cum-allotment letter he was liable to pay the cost of the flat to the tune of Rs.5,30,003/- latest by 16.01.2007. He also informed that he had already filed a representation regarding change of address during the month of March, 2006. On 12.01.2007 he requested for grant of extension of time for payment of the demanded amount for a period of one year. He also deposited an amount of Rs.132501/- equal to 25% of the demanded amount as required for considering the request for the grant of extension of time. The extension of time was granted by the competent authority for a period of six months i.e. upto 15.07.2007 and conveyed to him at his changed address as intimated by him on 17.08.2006. No response was received till 15.07.2007. The Complainant vide letter dated 13.11.2007 informed the OP that he had not received the letter of extension of time and, therefore, he did not deposit the amount by 15.07.2007. He also informed that due to an accident he had become partially handicapped and had now made arrangement of amount to be paid to the OP and requested to inform the amount payable by him. Since the Complainant by virtue of having the demand–cum-allotment letter in his possession was having knowledge of the amount to be paid to the OP, therefore they issued show cause notice on 20.12.2007 on his changed address. In response to the show cause notice he contended that EOT letter had not been received by him and, therefore, show cause notice be withdrawn and the details of the amount payable by him be conveyed to him. The request of the Complainant was turned down and conveyed to him vide letter dated 24.01.2008 and ultimately the allotment of the flat in his name was cancelled by the competent authority on the ground of non compliance of the terms and conditions of demand–cum-allotment letter even after extension of time granted to him upto 15.07.2007. Therefore, sufficient time was available with him for depositing the demanded amount. The allegations that he had not received the extension of time letter is baseless as the subsequent correspondence i.e. show cause notice had been received by him on the same address on which letter intimating extension of time for six months was dispatched. OP has requested to dismiss the complaint.
Complainant has filed rejoinder to the written statement.
Complainant has filed his affidavit in evidence while affidavit of Ms. Neelam Chadha, Director (Housing-II) has been filed in evidence and Affidavit of Sh. A.K. Bisht, Director (H) II of OP has been filed by way of additional evidence on behalf of the OP.
Written arguments have been filed on behalf of the parties. We have heard arguments on behalf of the parties.
We straightway come to the question, whether the cancellation of the flat allotted to the Complainant by the OP was justified and, if so, whether the Complainant is not entitled to any relief?
Facts are not in dispute. The Complainant was allotted a LIG flat No.630, Type B, Pocket B-1, (2nd Floor) in Loknayak Puram on hire purchase basis for a consideration of Rs.8,40,093.98 vide demand–cum-allotment letter dated 20.07.2006 (copy Annexure C-2/1-5). Copy of the terms and conditions of the allotment is Annexure C-2/2. The Complainant requested for extension of time for one year and deposited 25% of the demanded amount i.e. Rs.1,32,501/- vide his letter dated 11.01.2007 (copy Ex. CW1/-3).
However, according to the OP, the competent authority of OP had granted only six months extension to the complainant. The Complainant vide letter dated 13.11.2007 (copy Ex. CW1/6) informed the OP that he had applied for extension for one year i.e. from 16.01.2007 upto 16.01.2008 but extension was given upto 15.07.2007 as per the enquiry made by him from the office of the OP on 12.11.2007. The letter dated 13.11.2007 was received by the OP on 15.11.2007 (copy Ex. CW1/7). The OP issued a show cause notice to the Complainant regarding non-payment of the demanded amount (copy Ex. CW1/8). Vide letter dated 13.12.2007 (Copy Ex.CW1/9) complainant requested the OP to cancel to the show cause notice and to send the details of the amount in respect of the payment to be made by him. OP vide letter dated 24.01.2008 (Ex.CW1/11) informed the Complainant that his request had been examined by the competent authority but the same could not be acceded to. Complainant vide letter dated 27.02.2008 (Ex. CW1/12) informed the OP that he had not received the letter issued in February 2007 sent by the OP for granting him time till 15.07.2007 and requested to revive his allotment and to inform the amount to be paid by him so that he could deposit the same. The OP vide letter dated 03.04.2008 (Ex. CW1/15) informed the Complainant that the said registration/allotment had been cancelled due to the reason “as you failed to comply with the terms and conditions of the aforesaid allotment” and requested him to apply for refund of the registration money and submit the documents.
The Complainant had applied for extension of time for one year till 16.1.2008 and deposited 25% of the demanded amount i.e. Rs.1,32,501/- vide his letter dated 11.01.2007. It was the legal duty of the OP to explain the circumstances under which the extension of time for only six months was granted instead of one year for making the remaining payment. When the OP had accepted the amount of Rs. 1,32,501/- for extension of time for one year from the complainant, it was the bounded duty of the officers of the OP to explain the reasons and the circumstances under which only the six months time was granted to the complainant. The officers of the OP could not and cannot be allowed to extend the time at their own sweet will and whims when there was a provision for extension of time upto one year and the complainant had deposited the extension fee for one year well in time. The officers of the OP were bound to grant him extension of time for one year. If they wanted to act to the contrary and they had infact done, they should have explained the reasons to the complainant but they did not do so.
The Complainant had been pursuing the matter with the OP-DDA authorities but to no effect. The simlicitor and perhaps the stereotype version of the OP is that the cancellation of the flat was as per the terms and conditions. The OP-DDA is a statutory body and inter-alia has been conferred with the legal right to construct requisite number of flats, to launch various schemes for allotment of the flats to the legible candidates and after the allotment of flats to give possession thereof to the allottees in accordance with the relevant rules and regulations. While performing this duty the officers of the OP must act diligently and with entire honesty and transparency. They must not act in a perfunctory manner.
It was the duty of the OP to prove that the letter issued in February 2007 thereby granting extension for six months to the complainant was duly sent to him and received by him. The copy of the said letter has been marked as Ex. RW1/C but, however, it appears that the OP has not marked the exhibit numbers as per the affidavit of its witness Ms. Neelam Chadha in the corresponding documents. We mark the copy of the said letter as mark ‘AA’ for the purposes of identification. The same has been signed on 9.2.2007/12.2.2007. However the date its dispatch is not written. According to averments made in the written statement, date of the letter has not been mentioned. The mode of sending the said letter to the complainant has not been written on it. On perusal of this letter it is not at all clear whether the same was sent to the complainant through ordinary post or under UPC or through registered post. In order to fill this lacuna in their case, the OP has filed the additional affidavit of Sh. A.K. Bisht. The relevant portion of the affidavit is Para 2. The same reads as under:
“That as per acknowledgment/UPC receipt of Extension letter dated 9/12.2.2007, the Extension letter dated 9/12.2.2007 sent by DDA to the complainant was deemed to be served to the complainant on 20.2.2007 vide UPC receipt dated 20.2.2007 vide UPC receipt dated 20.2.2007. The UPC receipt dated 20.2.2007 is hereby exhibited accordingly.”
UPC receipt has not been filed. The copy of the Diary Register for 20.2.2007 has been filed along with the additional affidavit. According to the said Diary Register, the letter had been dispatched to the complainant on 20.2.2007. Therefore, how could the OP presume service of letter upon the complainant on 20.2.2007? Moreover, no provision of law has been brought to our notice that the notice and/or letter sent under UPC can be deemed to be service of the notice/letter upon the addressee. Had it been the case of sending the letter under registered AD cover bearing correct address of the complainant, the position would have perhaps been different. Therefore in this case keeping in view the facts and circumstances of the case discussed above, we do not think it at all safe to presume service of the said letter upon the complainant. Therefore, presumption has to be raised against the OP that it were the officers of the OP who did not send the said letter to the complainant. Therefore, we hold that the service of the said letter upon the complainant has not been proved according to law.
The complainant ought to have been granted time for one year i.e. upto 16.1.2008 to deposit the amount. However, the officers of the OP started taking action against the complainant before that date. They were not at all justified in doing so. They ought to have allowed the complainant to deposit the amount after 16.1.08. However, at the same time we also have reason to believe that the complainant had also the knowledge of the amount which had to be paid by him to the OP towards the allotment of the flat in question after 16.1.2008. Therefore, the complainant was also not justified in asking the OP to inform him about the amount which he was required to pay to the OP towards the allotment of the flat in question. By not depositing the amount even after 16.1.2008 the complainant also acted in an irresponsible and negligent manner and he should be penalized for this.
In view of the above discussion, we direct the OP to allot one LIG flat in any locality to the complainant on the same old rates i.e. the rates which were prevalent on the date of allotment of the flat in question to the complainant. The complainant shall deposit the entire amount along with upto date 6% interest with the OP in lumpsum within 45 days from the date of receipt of copy of this order. On his depositing the said amount within this period the officers of the OP shall start the process of allotting a LIG flat to the complainant and complete it within a period of 90 days thereafter. In the facts and circumstances of the case, we do not award any compensation/cost of litigation to the complainant. The complaint stands disposed of accordingly.
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 24.08.15.
(NAINA BAKSHI) (N.K. GOEL) MEMBER PRESIDENT
Case No. 285/08
24.08.2015
Present – None
Vide our separate order of even date pronounced, the complaint is allowed. The is directed to allot one LIG flat in any locality to the complainant on the same old rates i.e. the rates which were prevalent on the date of allotment of the flat in question to the complainant. The complainant shall deposit the entire amount along with upto date 6% interest with the OP in lumpsum within 45 days from the date of receipt of copy of this order. On his depositing the said amount within this period the officers of the OP shall start the process of allotting a LIG flat to the complainant and complete it within a period of 90 days thereafter. In the facts and circumstances of the case, we do not award any compensation/cost of litigation to the complainant. The complaint stands disposed of accordingly. Let the file be consigned to record room.
(NAINA BAKSHI) (N.K. GOEL) MEMBER PRESIDENT
