DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No.804/2008
Sh. Nand Lal
S/o Late Sh. Prem Chand
R/o 8/243, DDA Colony,
Garhi, Lajpat Nagar,
New Delhi-110065 ….Complainant
Versus
Delhi Development Authority
through its Vice Chairman
Vikas Sadan, INA, New Delhi …...Opposite Party
Date of Institution : 08.12.2008
Date of Order : 18.05.2017
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
ORDER
As per the complainant’s case, he had purchased a shop bearing No.8 measuring 11.67 sq. mtrs. in CSC EPR Colony, Greater Kailash Part-1 Enclave, New Delhi in an open auction from the OP in the year 1980 for self employment purposes against a payment of Rs.27,900/-. The possession of the shop was handed over by the OP on 11.09.1980. On 07.07.1981 OP sent four unsigned Conveyance Deed forms and asked him to get three forms stamped from the Office of the Collector of Stamps and send them for the execution of the Conveyance Deed. The complainant submitted the same on 19.02.1982. However, due to non-payment of bribe of Rs.2500/- to the officials of the OP Conveyance Deed was not executed despite personal visit made by him in the office of the OP and meeting with Sr. Officials. On 24.11.1984, he received a show cause notice of cancellation and the removal of unauthorized construction on the ground that he had constructed 80% wooden mezzanine in the shop which was being used for cloth store. By way of a reply the complainant clarified that he had not raised any unauthorized construction as the shops were built near Nallah (Drain) and in rainy days water used to get blocked and entered into the shop upto the height of 2 feet; that the complainant had put iron angles and wooden boards to be used as shelf in order to save his goods from being destroyed and that no damage was caused to the premises either from outside or from inside. The complainant further requested the OP to allow him the facility of wooden shelf. OP issued another false show cause notice dated 08.02.1985 stating that the complainant had encroached the verandah passage by putting repaired furniture and on terrace of market built up a wooden room unauthorizedly and had also built up 80% wooden mezzanine. The complainant also replied the said notice. Yet another notice dated 26.12.1987 was issued to him stating that the complainant had provided wooden loft in the shop and that he had divided the shop into two portions and was running a video library in one room and selling car seat cover, cushion etc. in the other portion which was replied by him vide reply dated 13.01.1987. He visited the office of OP twice and stated that he had never divided his shop into two portions and since the purchase he is using it for the work of upholstery only and never used it for any other purpose. OP asked the complainant to deposit a further amount of Rs.19,596/- towards ground rent upto 10.09.2006, interest on ground rent upto 31.03.2006, maintenance charges upto 31.03.2006 and interest on maintenance charge upto 31.03.2006 which was illegal but even then he deposited the same vide challan dated 28.02.2006; despite that the OP did not execute the conveyance deed. The complainant filed an application under the RTI Act and vide reply dated 20.09.07 he was informed that the conveyance deed could not be executed as the complainant had carried out unauthorized construction and encroachments in the shop in question and action shall be taken after getting no due report against any outstanding amount alongwith the damage charges for misusing the shop. The complainant approached the Appellate Authority and the OP vide letter dated 05.12.07 informed him that the complaint did not fall within the purview of the RTI Act. Thereafter, vide another letter dated 20.12.07 the complainant was asked to remove the unauthorized construction/encroachment from the shop in question and to deposit the outstanding dues against as informed vide letter dated 20.09.07. The complainant replied the letter vide his reply dated 20.12.07 on 07.01.08 by stating that as informed earlier vide his letter dated 11.02.1985 there was no construction in the shop in question. Vide letter dated 11.02.08 OP again sent conveyance deed forms and required the complainant to get the same stamped from the Collector of Stamps and deposit an additional amount of Rs.1705/-; that in order to avoid any confrontation and in order to resolve the issue he once again went through the entire process, got the conveyance deed forms stamped from the Collector, paid the stamp duty and deposited the same with the OP on 22.02.2008. It is stated that instead of executing the conveyance deed the OP vide demand letter dated 23.10.08 called upon him to deposit Rs.736307/- towards misuse charges from 18.10.1984 to 21.10.2005 which demand was illegal and arbitrary and the complainant had refused to grease the hands of the OP. According to the Complainant, the demand raised by the OP after 21 years is illegal and is aimed at to harass him. According to the Complainant, even otherwise, if an owner of a shop puts some wooden loft or shelf in his shop for his use, the same cannot by any stretch of imagination be termed as misuse and that the same is a part and parcel of enjoyment of his property. Hence, pleading unfair trade practice and deficiency in service on the part of the OP the complainant has filed the present complaint for the following prayers:-
“(a) hold the O.P. guilty of deficiency of service,
(b) quash and set aside the demand letter No.F.68(8)1980/IMPL/4658 dt. 23-10-08 for being absolutely illegal and arbitrary,
(c) direct the respondent to forthwith execute the conveyance deed in favour of the complainant,
(d) award a sum of Rs.5 lakhs towards mental agony and harassment caused to the complainant on account of the delay in execution of the Conveyance Deed and on account of the illegal demand raised against him and deficient services rendered by the OP,
(e) Award a sum of Rs.25,000/- towards costs of the present proceeding.”
OP in the written statement has stated as under:-
“4. That the complaint filed by the complainant is regarding the shop was purchased by the complainant in auction and in view of the order passed by this Hon’ble Forum in the similar case of Sh. Ved parkash & ors v/s DDA on 4.7.2005 there was no hiring of the services of the OP within the meaning of consumer under section 2 (i) (o) and as such they were not entitled to invoke the provision of Consumer Act.”
It is further stated that during the general survey conducted on 18.10.1984 by the Engineering staff it was found that the complainant had constructed 80% wooden mezzanine in the shop which was being used as a cloth store contrary to the terms and conditions of the auction and thereby committed the breach of clause IV (v) of auction. It is further stated that though the complainant had requested the OP to allow him the facility of wooden shelf but no such permission was permissible as per the terms and conditions of the auction. Correspondences which ensued between the complainant and the OP have not been denied. It is submitted that the shop in question was misused from 18.10.84 to 21.10.05 which was contrary to the terms and conditions of the auction. It is stated that the Complainant is liable to pay the misuse charges for the said period because by committing the breaches of terms and conditions excess area was generated and had been used by the complainant. The DDA has rightly raised the demand as per letter dated 23.10.2008. It is prayed that the complaint be dismissed.
In the replication the complainant has reasserted the averments made in the complaint.
Complainant has filed his own affidavit in evidence. On the other hand, affidavit of Sh. S. S. Gill, Director (RL) has been filed in evidence on behalf of the OP.
Written arguments have been filed on behalf of the parties.
We have heard the oral arguments of the Counsel for OP. None has appeared to advance oral arguments on behalf of the Complainant despite opportunity given in this behalf.
We have also gone through the file very carefully.
It is an admitted case of the parties that the complainant had purchased the shop in question for Rs.27,900/- in an open auction held by the OP in the year 1980.
The OP has relied on a judgment delivered by the National Commission in First Appeal No. 442/06 – DDA Vs. M/s Anand Estate Pvt. Ltd. decided on 04.07.12 in which it is held that if the plot is purchased by a person in an auction on the basis of “as is where is basis” the purchaser is not a consumer as defined in the Consumer Protection Act and thus the provisions of the said Act are not applicable to these cases. Therefore, on the same analogy in the present case the complainant being the purchaser of the shop in question in an open auction held by the OP in the year 1980 is not a “consumer” as defined in the said Act.
The complainant had allegedly raised unauthorized construction in the shop in question as detailed in his complaint and in the reply filed on behalf of the OP. Before executing the conveyance deed in favour of the complainant the OP has asked the complainant to deposit an amount of Rs.736307/- vide impugned demand letter No.F.68(8)1980/IMPL/4658 dated 23.10.2008. According to the complainant, the said demand is totally illegal and unjustified. His version is that he has not raised any unauthorized construction in the shop in question but as his shop in the area was built near a Nallah (Drain) and in rainy days water used to get blocked and entered into the shop upto the height of 2 ft. thereby destroying all the goods lying on the floor, the complainant put iron angles and wooden boards to be used as shelf in order to save his goods from being destroyed and that no damage was caused to the premises either from outside or from inside. Thus, according to the complainant himself he has built a wooden shelf in the shop in question. On the other hand, case of the OP is that after the general survey conducted on 18.10.84 and being found that the complainant had constructed 80% of the wooden mezzanine in the shop being used a cloth store, another inspection was made on 15.05.85 when it was found that the complainant had removed partly wooden mezzanine floor but had encroached the verandah by putting the repaired furniture, sofa etc.
As stated hereinabove in the complaint the complainant has taken an alternative plea that if an owner of a shop puts some wooden loft or shelf in his shop for his use, the same cannot, by any stretch of imagination, be termed as misuse. It is not denied that the said wooden loft is not being used for storing the cloth. Therefore, the complainant himself has admitted about raising some unauthorized construction in the shop in question. The conduct of the OP is also not appreciable inasmuch as it did not raise any demand for paying the misuse charges before issuing demand letter dated 23.10.08 to the complainant. However, the fact remains that the demand was raised for paying the misuse charges. In DDA Vs. Smt. Raj Bala Grover FA No. 112/2006 decided on 22.09.11 the National Commission has held that where there was amount claimed by levying misuse charges, the OP DDA did not perform any service as defined in the Consumer Protection Act nor there was any consideration charged from the complainant and, therefore, such a dispute cannot be covered under the said Act. Therefore, following the said decision we hold that the complainant in the present case is not a ‘consumer’ as defined in the Consumer Protection Act.
The complainant has made some allegations regarding demand of bribe from him by the officials of the OP to execute the conveyance deed papers in respect of shop in question. The said allegations cannot be looked into in the present complaint. The proper remedy for the complainant was to invoke the jurisdiction of the appropriate forum /court of law/and the authority dealing with anti-corruption laws.
In view of the above discussion, we hold that the complainant is not a ‘consumer’ as defined in the Consumer Protection Act. Therefore, the dispute raised in the complaint is not a ‘consumer dispute’. Accordingly, we dismiss the complaint with no order as to costs.
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 18.05.17.
