DR. SADHNA SHANKER, MEMBER 1. The present appeal has been filed under Section 51 of the Consumer Protection Act, 2019 (hereinafter referred to as “the Act”) in challenge to the Order dated 11.11.2021 passed by the State Consumer Disputes Redressal Commission, Delhi (hereinafter to be referred to as ‘State Commission’) in complaint No. 296 of 2010, whereby the complaint of the complainant was dismissed. 2. Heard learned counsel for the appellant (hereinafter referred to as the ‘complainant’) and the learned counsel for the respondent (hereinafter referred to as the ‘development authority’) and perused the record including the State Commission’s impugned Order dated 02.09.2021 and the memorandum of appeal. 3. The brief facts of the case are that on 14.08.1982 the complainant’s wife, Smt. Saroj Jain had applied for allotment of a flat under Vth Self Financing Housing Registration Scheme 1982, Category III, along with registration amount of Rs. 15,000/-. It is alleged that after 11 months, in April 1993, the complainant’s wife was informed that she was successful for allocation of a category III flat at Ground Floor in Mukherjee Nagar, Delhi and estimated cost was Rs.7,80,800/- and 90% payment of the estimated cost was required to be deposited in four installments. After deducting an amount of Rs. 30,865/- from the total sale consideration, (Rs. 30,865/- being the amount already deposited and interest accrued upon it), the development authority demanded a further amount of Rs. 6,71,954.65 which was payable by 08.05.1993. 4. Against the said demand payable within one month, the complainant’s wife moved the State Commission for redressal of her grievances. However, the complaint was disposed of as withdrawn on 17.12.1996 with liberty to file a fresh complaint if the matter was not settled to the satisfaction of the complainant. 5. Thereafter, in the year 1993-94, for another allotment, the complainant’s wife deposited a sum of Rs. 4,50,000/- but her name was not included in the particular draw of lots conducted by the development authority on 28.10.21994 and 16.02.1995. It is further alleged that names of Ms. Manjula Rohatgi and Shri Balraj Kishan, who have deposited Rs. 4,55,551.79 and Rs. 4,60,841/- respectively, including registration deposit and interest accrued thereon, were included in the draw of lots held on 28.10.1994 and they were allotted Category III flats No. 166 and No. 214 at first floor in Mukherjee Nagar, Delhi. The grievance of the complainant’s wife is that she had deposited a sum of Rs.4,80,865/- including registration deposit and interest accrued thereon but she was denied the right of inclusion of her name in both these draw of lots held on 28.10.1994 and on 16.02.1995. 6. The complainant’s wife died due to cancer on 07.08.1994. Hence, the complainant moved an application dated 14.10.1996 for mutation / transfer of registration / allocation of flat in his name and to allot Category II flat in Mukherjee Nagar if Category III flat is not available with the development authority. The development authority acceded the request of the complainant and the registration/allocation of the flat was mutated to the complainant’s name. 7. The complainant had written various letters to the development authority and sought allotment of a flat. Thereupon, on 13.03.2007, the complainant finally received a letter that the complainant had been allotted a category II type flat bearing No. 625 at Ground floor, Shalimar Bagh at a cost of Rs. 23,07,316/- and a further sum of Rs. 20,000/- was also payable as restoration charges and the demand letter stated that an amount of Rs. 18,26,451/- was payable after deducting Rs. 4,80,865/-, which had already been paid by the complainant. The complainant had paid a total amount of Rs. 23,07,316/- towards the total sale consideration plus Rs. 1,38,475/- towards stamp duty and Rs. 34,500/- as maintenance charges. 8. Alleging deficiency in service on the part of the development authority, the complainant had filed a complaint before the State Commission. 9. The development authority contested the complaint taking preliminary objections that the complaint is barred by limitation and the complainant is not a ‘consumer’ and the complaint is not maintainable. Also, the State Commission lacked jurisdiction to adjudicate the present complaint and there is no deficiency on the part of the development authority and the complaint is liable to be dismissed. 10. The State Commission, vide order dated 02.09.2021, dismissed the complaint observing that there exists no deficiency of service on the part of the development authority. 11. Aggrieved by the order dated 02.09.2021 of the State Commission, the complainant has filed the instant appeal before this Commission. 12. Learned counsel for the complainant has argued that the as per the brochure, the tentative cost of the flat is Rs. 5,27,700/- while the development authority vide allotment letter dated 08.04.1993 had illegally demanded Rs.7,80,000/-. He further argued that despite the deposit of registration amount, the name of the complainant’s wife was not included in the draw of lots held on 28.10.1994 and 16.02.1995 while the names of other applicants, namely, Smt. Manjula Rohatgi and Mr. Balraj Kishan were included in the draw of lots, which constitutes deficiency in service on the part of the development authority. It is further argued that as the another applicant, Mr. Ajit Singh in the year 2005, had been allotted a flat for a total consideration of Rs. 11,68,310/-, hence, the complainant may also be allotted a flat of similar size at the same price. 13. Learned counsel for the development authority has argued that the complainant’s wife had not deposited the amount of Rs. 6,71,954/-, as demanded by the allotment letter, within the prescribed time and she had only deposited Rs. 4,50,000/- in 08 spells from 03.03.1993 to 14.09.1994, therefore, her name was not considered for allotment of specific flat. She further argued that as no flat was available in Mukherjee Nagar, hence, the request of the complainant’s wife was not acceded. She further submitted that only after taking consent for allotment, a flat in category II SFS, flat no. 625, ground floor, sector D Pocket A Shalimar Bagh, Delhi was allotted and final demand letter after adjusting the registration amount, was issued and on completion of formalities, possession letter was issued on 31.10.2011. She further argued that the cost was charged as per the policy and if the complainant was not interested to get the flat, he was free to decline the allotment and there is no deficiency on the part of the development authority. 14. The main question for our consideration is as to whether there was deficiency in service on the part of the development authority. 15. It is apposite to read the conditions of the brochure, which are as under:- “Please Note : 1. The tentative cost of flat reflected above is subject to revision on account of escalation in the value of land and cost of construction. There is a possibility of upward revision of cost also. - The persons may be required to pay 2 to 4 instalments together with interest @10% p.a. in lump sum in respect of schemes which are in an advanced stage of construction.”
16. From the perusal of the conditions, it is seen that the cost mentioned in the brochure is tentative and it has been clearly mentioned that the cost may be revised. The complainant’s wife was not declared successful in draw of lots held in 1990 and 1991. The complainant’s wife succeeded in the draw of lot held on 23.03.1993 demanding a sum of Rs. 6,71,,954/- but the complainant’s wife could not deposit the demanded amount within the prescribed time, hence, the allotment was cancelled. 17. In so far as non-inclusion of the name of the complainant’s wife for allotment of the specific flat, the onus is on the complainant to prove that the payment had been made within the prescribed period but has failed to produce any documentary evidence that the complainant’s wife had made the payment within the prescribed period. It is to be noted that at that time, the complaint was pending before the State Commission. It is an admitted fact that the complainant’s wife had deposited Rs. 4,50,000/- in 08 spells from 03.03.1993 to 14.09.1994. Therefore, her name was not included in the draw of lots for allotment of specific flat. 18. As regards, the point that the flat be allotted at the price at which a flat of similar size has been allotted to the Mr. Ajit Singh, it is to be noted that the flat was allotted to the complainant only after taking the consent from the complainant. In response to the letter dated 10.01.2002 of the development authority, the complainant had given his consent in 2006. From a perusal of the consent letter, it does not flow that the complainant is seeking flat at the prevailing price which existed in 2002. It is also to be noted that in the draw of lots held in 2002, the complainant was unsuccessful and only in draw of lots held in 2006, he was declared successful. Hence, the flat at the prevailing cost existed in the year 2002, cannot be sold. Moreover, if the complainant has any grievance about the cost of the flat, he was at liberty to decline the flat but the complainant had paid a total amount of Rs. 23,07,316/- towards the total sale consideration plus Rs. 1,38,475/- towards stamp duty and Rs. 34,500/- as maintenance charges. 19. For the above discussion, we do not find any deficiency on the part of the development authority and the State Commission has passed a well-reasoned order. 20. The appeal is dismissed. |
