DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016
Case No.131/2009
Sh. Akshaya Kumar (Senior Citizen)
716, PKT-V, Mayur Vihar (Phase-1) 75 years old
Delhi-110091 ….Complainant
Versus
Delhi Development Authority
Through its Vice Chairman
Vikas Sadan, INA,
New Delhi-110023
….Opposite Party
Date of Institution : 26.02.2009 Date of Order : 21.03.2018
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
ORDER
As per the averments made in the complaint, the complainant had applied for allotment of an MIG flat under Registration Scheme on New Pattern 1979 with the OP and paid Rs.4500/- vide challan No. Z127750 dated 22.09.1979. The OP issued a certificate of registration No. 14466 dated 22.09.1979. The complainant was regularly in touch with the OP before 2001; however, due to health problem the complainant could not remain in touch with the OP; on 12.05.04 the complainant wrote a letter to the OP enquiring about the status of allotment of flat. Subsequently, the complainant visited the office of the OP where he was shocked to learn that he was issued the allotment letter merely two years ago and it was cancelled. The complainant immediately vide letter dated 27.05.04 clarified to the OP that he being a heart patient had suffered a heart attack in 2001 and, therefore, he could not track his allotment. The complainant requested the OP to allot the flat. The complainant sent reminders dated 27.12.06, 27.04.07 and 13.08.08 (personally delivered to the OP) requesting for allotment of flat. Lastly the complainant filed an application under the RTI Act 2005 for knowing the actual status of his application on 19.09.07. The complainant received a reply from the OP under the RTI Act on 11.10.07 wherein the OP stated that the allotment had been cancelled with the approval of the competent authority. On 15.10.07 the complainant again requested the OP for revocation of the cancellation but the OP failed to give any proper reply. Hence the OP has committed deficiency in service. The complainant has filed the present complaint with the following reliefs:-
- Direct the Opposite Party to allot an MIG flat to the Complainant in pursuance of his priority No.33345 OR to make the refund of Rs.4500/- to the complainant with compound interest @ 18% w.e.f. 22/9/1979 upto the date of payment and to pay a sum of Rs.150000/- to the complainant towards compensation for sufferance of agony and harassment attributed to non allotment of flat to the complainant and/or
- Direct the OP to pay a sum of Rs.50,000/- as litigation cost.
OP in the written statement has inter-alia stated that the OP had floated a scheme known as NPRS, 1979 and the complainant after reading the terms and conditions contained in the brochure made an application No. 127750 dated 22.09.1979, got himself registered for allotment of MIG flat under NPRS, 1979 by depositing the registration money of Rs.4500/-, he was assigned registration No.14466 priority No. 33345. In the draw held on 31.05.02 the complainant was allotted a flat No. 95, first floor, Pocket 6, Sector 12, Dwarka on cash down basis. The result of the draw was published in the leading newspapers and the same was displayed on the internet site and also displayed on notice board of the OP. The demand-cum-allotment letter was issued in the block 25-6-2002-5-7-2002 whereby the complainant was asked to deposit the amount as per schedule contained in the demand-cum-allotment letter. The complainant was asked to complete the codal formalities and in the demand-cum-allotment letter it was specifically stated that if the complainant will not make the payment within the stipulated period, then the allotment shall be cancelled automatically. The demand-cum-allotment letter was sent to the complainant at his residential address which was returned undelivered with the postal remark “ No such person in such address”. The demand-cum-allotment letter was again sent at the occupational address of the complainant. The same was again returned by the postal authority with the remarks “No such person in the address.” Since some demand-cum-allotment letters sent to the allottees were returned back undelivered, therefore the OP notified through newspaper published in the daily newspaper “The Times of India” dated 17.10.02 thereby it was notified that the demand-cum-allotment letters for priority Nos. upto 34388 were issued. The persons registrants upto priority No. 31231 to 34388 were advised to collect the demand letters within 15 days failing which it was notified that action for cancellation will be initiated without further notice. The complainant did not turn up and, therefore, the allotment was cancelled. The allotment was made as per the brochure and the same was cancelled. Therefore, the complainant is not entitled for any allotment at this belated stage. It is submitted that the complainant submitted an application under the RTI Act and the same was replied by the OP vide letter dated 11.10.07. It is denied that there is a grave deficiency in service on the part of the OP. It is submitted that the complainant was allotted a flat on his turn of priority but the complainant failed to avail the same and, hence, there is no fault on the part of the OP. OP has prayed for dismissal of the complaint.
Complainant has filed a rejoinder and reiterated the averments made in the complaint. In para 2 of the reply to reply on merits it is stated as follows:-
“…It is denied for the want of knowledge that in the draw held on 31.05.2012, the complainant was allotted a flat No.95, 1st Floor, Pocket-6, Sector 12, Dwarka, on cash down basis. It is further denied that the result was published in leading news papers and the same was displayed on notice board of DDA. It is specifically denied that the demand cum allotment letter was issued in the block 25-6-2002 - 5.7.02 as the same was never served upon the complainant. That content of demand cum allotment letter is further denied for the want of knowledge as the same was never served upon the complainant. It is further specifically denied that the demand cum allotment letter sent to the complainant at his residential address and the occupational address and the same were returned back undelivered. That the falsity of the averment are apparent from the facts that the OP claimed under the present para that since some demand cum allotment letter sent to the allottees were return back undelivered, therefore, the OP notified through the news paper published in Times of India dated 17.10.02. However, OP annexed proof of service dated 16/04/03 on page 22 of the reply, on the occupational address of the complainant which after the cancellation of flat. It is pertinent to mention here that OP has malafidely violated the terms of brochure and the scheme and thereby not allotted the flat as per priority nos…”
Complainant has filed his own affidavit in evidence. On the other hand, affidavit of Sh. S. K. Jain, Director (H) has been filed in evidence on behalf of the OP.
Written arguments have been filed on behalf of the parties.
We have heard the arguments on behalf of the parties and have also gone through the file very carefully.
The complainant has filed the copy of challan dated 22.09.79 as Annexure CW-1. The OP issued the certificate of registration dated 07.05.1980 (copy Annexure CW-2). The OP issued deposit receipt of Rs.4500/- dated 22.09.79. The complainant sent a letter dated 12.05.04 regarding change of address as Annexure CW-3. The complainant sought the information under the RTI Act vide letters dated 27.05.04 & 27.12.06 (copies Annexure CW-4 & Annexure CW-5) which was replied by the OP vide reply dated 11.10.07 (Annexure CW-6). The OP has filed the application for registration as Ex. RW-1/2. The OP has filed the copy of demand-cum-allotment letter dated 25.06.02-05.07.02 as Ex. RW-1/3. The address of the complainant has been mentioned therein as 67-D, Pocket-3, Mayur Vihar, Delhi and second address as M/s P.N. Ganesan (Delhi) Company, K-29, Connaught Place, New Delhi. We must say here at once that Ex. RW1/2 is the copy of the application form No. Z127750 for registration submitted by the complainant with the OP at the time of registration of MIG flat. The following addresses of the complainant have been mentioned therein:-
Resi :- A9/F, DDA Flats, Munirka, New Delhi-110057
Occupational :- M/s P.N. Ganesan (Delhi) Company, K-
29, Connaught Place, New Delhi
Ex.RW-14 is the copy of the receipt of demand-cum-allotment letter stated to have been sent to the complainant wherein the address mentioned of Akashay Kumar is of 67 D, Pocket-3, Mayur Vihar, Delhi. The same was returned with the remarks “No such person in such address”. OP again sent the letter at the complainant’s occupational address which was returned back with the postal report “no such person on this address.” The OP has filed the newspaper cutting of the Times of India dated 19.10.02 as Ex. RW-1/6.
As per the speed post report bearing No.18534 dated 16.07.02 the letter was sent to the complainant Akshya Kumar at 67D Pocket-3, Mayur Vihar, Delhi whereas the address mentioned by the complainant in his registration form is A-9/F, DDA Flats, Munirka, Delhi-110057. It clearly shows that the OP had not sent the letter at the correct residential address of the complainant due to which the complainant could not receive the demand-cum-allotment letter.
This is a case where the complainant has not specifically taken the plea that he had not received the demand-cum-allotment letter from the OP at any point of time. Rather, his plea is that he had been in regular touch with the OP before 2001 and due to a heart attack he could not remain in regular touch with the OP and he wrote a letter to the OP only on 12.05.2004 enquiring about the status of the allotment of the flat to him.
According to the OP, the date of the demand-cum-allotment letter is 25.06.02-05.07.02 and the same had been sent to the complainant firstly at his given address of Mayur Vihar and the same was received back unserved with the postal report “no such person at the given address”. The same was again sent to him at his occupational address from where it had also been received back undelivered with the similar report and only thereafter the OP issued a public notice in the daily newspaper thereby informing the allottees including the allottee having priority No.33345 i.e. the complainant to collect the demand-cum-allotment letter within 15 days from the date of publication of the notice failing which action for cancellation would be initiated without further notice.
The address i.e. 67D Pocket -3, Mayur Vihar, Delhi as mentioned in the demand-cum-allotment letter was not mentioned by the complainant in his registration form. Therefore, it has remained quite strange and also a mysterious fact as to how the officials of the OP had sent the said letter to the complainant at an address which was not in their record on the relevant date. The complainant had sought the change of his address on 12.05.04 i.e. much after the date of the alleged issuance of demand-cum-allotment letter. Therefore, it is the OP itself who has filled the deep and wide lacuna in the case of the complainant and has itself proved that the demand-cum-allotment letter had infact been not sent to the complainant at his correct residential addresses. Therefore, in the fact of the case discussed hereinabove, publication of any such notice in the newspaper cannot be deemed sufficient. Therefore, we hold that the cancellation of allotment of the flat No.95, first floor, pocket-6, sector-12 on cash down basis to the complainant in the draw held on 31.05.02 was illegal and against the provisions of law and also the principles of natural justice.
The OP has taken a plea that the complaint is hopelessly time barred. We do not know as to how the complaint is time barred. In response to the letter dated 12.05.04 he had received an intimation about the allotment of the flat and issuance of demand-cum-allotment letter and subsequent cancellation of the allotment of the flat. Thereafter, he made correspondences with the OP and the OP gave replies at the appropriate time. Therefore, in our considered opinion, limitation for filing the present complaint remained in continuous process and, hence, the complaint is not time barred. Hence, we hold that the case of Haryana Urban Development Authority Vs. Tej Refrigeration Industries Ltd. (2013) 14 SCC 758 relied on behalf of the OP in this regard is not applicable to the special facts and circumstances of the present case.
In our considered opinion, the decision rendered by the National Commission in R.P. No. 800/2009 – DDA Vs. Sunil Bharti decided on 13.08.09 relied on behalf of the OP is also not applicable to the special facts and circumstances of the case since in that case it was found that the complainant’s case was that the notice was published in the newspaper on 20.02.01 and cancellation of allotment was communicated to the complainant on 21.08.02 which was duly received by him and still the complainant had chosen to sleep over the matter instead of agitating the issue before the concerned authority. In the present case, there is evidence on the record to prove that after coming to know about the fact of cancellation of allotment the complainant had taken the matter with the OP without losing any time further and continued to pursue the same and when he did not receive any positive response from the OP he filed the present complaint. In the present case, admittedly, the demand-cum-allotment letter had not been served upon the complainant through courier service or post.
One of the submissions made on behalf of the OP during the course of arguments advanced at the bar is that since the Scheme in question has already been closed the complainant is not entitled to any relief. Reliance has been placed on a decision reported as Poonam Verma & Ors. Vs. DDA (2007) 13 SCC 154. In our considered opinion, the facts of that case were totally different from the facts of the present case. In that case, it was observed that “the Scheme in question was closed as far back as in the year 1994. The Central Government in terms of the provision of the Delhi Development Act or otherwise had no jurisdiction to revive the same. All the authorities under the said Act including the Central Government being the creatures of statute were bound to act within the four corners thereof. A specific grievance was raised by the appellants that the action on the part of the authority amounted to unfair trade practice. Deficiency of service was also pleaded. The courts having appropriate jurisdiction having found neither unfair trade practice nor deficiency in service, the Central Government ordinarily ought not to have interfered in the matter. The Scheme had been closed in the year 1994. In the present case no material has been placed on the record to show that the Scheme in question for allotment of flat on Registration Scheme on New Pattern, 1979 has since been closed. In our considered opinion, that judgment does not apply to the facts of the present case.
In view of the above discussion, we allow the complaint and hold the OP guilty of deficiency in service to the extent that the demand-cum-allotment letter was sent to the complainant at the wrong address which resulted in the deprivation of allotment of flat to the complainant as well as harassment in pursing the matter. Accordingly, we direct the OP to issue fresh demand-cum-allotment letter to the complainant at the rates prevalent on 26.02.09 ( date of filing of the complaint) within 60 days from the date of receipt of copy of this order under registered AD cover/speed post. The complainant shall deposit the entire amount in lumpsum within 60 days thereof and the OP shall allot 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 OP to pay a sum of Rs. 10,000/- for causing mental agony and harassment to the complainant (who is now 75 years of age).
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 21.03.18.
