DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

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

(Behind Qutub Hotel), New Delhi-110016.

Case No.539/2013

Sh. Jatinder Nath

R/o G-13, F.F., M. B. Road,

Saket New Delhi-110017                                               ….Complainant

Versus

1.       Delhi Development Authority

          through its Commissioner (Lands)

          Vikas Sadan, INA

          New Delhi-110023

2.       Deputy Director Lab (R)

          Delhi Delopment Authority

          C-II, 3^rd Floor, Vikas Sadan, INA

New Delhi-110023                                      ……Opposite Parties

                                                          Date of Institution          : 06.11.13                                                            Date of Order        :    .03.16

Coram:

Sh. N.K. Goel, President

Ms. Naina Bakshi, Member

O R D E R

Sh. S. S. Fonia, Member

The case of the Complainant, in short, is that he had purchased  a residential plot No. G-13, Malviya Nagar Extension (now Saket), New Delhi from OP in September 1972 on Perpetual Lease for self resident. He applied for conversion of leasehold into freehold in August 2011 but so far OP has not converted the said property into freehold.

Brief facts of the case are that the Complainant in response to brochure of OP captioned “Scheme of Conversion from Leasehold to Freehold August, 2011 (as modified) vide form No.148925 and deposited Rs.3,40,653/-  on 26.11.11 vide challan No. 10322511 at State Bank of India, Vikas Sadan, DDA, New Delhi. Subsequently the Complainant deposited duly filled Conversion Form No.148925 alongwith the third copy of challan and all other relevant documents of 33 pages at OP’s Freehold Counter vide requests ID No. 59687 and  challan No. 10322511 (copy annexure C-1).  The OP is said to have slept over the matter for a long thereby rendering deficient service, causing harassment and metal agony till he filed RTI application on 09.02.12 to know the fate of his application. The OP replied vide letter dated 07.03.12 that “the main file of the property is with Crime Branch for some investigation (copy annexure C-2).  Complainant has relevant portion of the brochure stating that “applications found in order will be disposed off within a maximum period of 90 days from the date on which the prescribed formalities are completed (Copy annexure C-3). The Complainant being 76 years old citizen has blamed the OP for not retaining the main file and making him to run from pillar to post to trace the main file in the Vigilance Department of OP/DDA.  The Complainant through another RTI application sought to know photocopy of main file have been retained by the OP before handing over the same to the Crime Branch on 21.10.1989. OP informed vide letter dated 18.12.12 that “ a photocopy of the file has been retained” (copy Annexure C-4).  The Complainant has further stated that after a wild goose chase for the main file on behalf of the OP, the ACP special Team, Crime Branch, Prashant Vihar, Delhi informed the Complainant with copy to OP vide letter dated 18.03.13 that “ the above original file has been mis-placed and not traceable despite best efforts” (Copy annexure C-5). The Complainant further draws inference from the letter of OP dated 18.12.12 that “although the main file of the property was untraceable as reported by the Crime Branch vide their above reply, the OP intentionally ad maliciously did not proceed for conversion of the property from leasehold to freehold. Aggrieved by abnormal delay caused by the OP in not converting the property into freehold property, the Complainant has invoked this Forum through the instant complaint with the following prayers:-

1. Direct the OPs to convert the plot from leasehold to freehold.
2. Direct the OPs to send the Conveyance Deed to the Complainant by registered post.
3. Direct the OPs to pay to the Complainant Rs.1,00,000/- towards compensation for interest on conversion fee of Rs.340,653/- deposited with the OPs since 26.12.11 and towards damages for causing severe harassment and mental agony.

OPs in their joint written statement have denied all the allegations made by the Complainant in his complaint mainly on the following grounds inter-alia:-

1. Sale of immovable property was by way of auction, therefore, the Complainant is not a consumer as per the Hon’ble Supreme Court judgment of UT Chandigarh Administration and Anr. Vs. Amarjeet Singh II (2009) CPJ1 (SC)
2. DDA being creature of the statute, can issue the policy decision, and therefore the policy decision or guidelines have a binding effect as held by Hon’ble Supreme Court in DDA Vs. Vijay C. Gurshaney & Anr. – (2003) 7 SCC 301.
3. The complaint is time barred as it has been filed beyond two years of period of limitation.
4. As per condition No.9 of the brochure of scheme in case of any legal dispute relating to title of the property, conversion shall not be allowed until the legal dispute is settled.

Besides above, the OPs have given detailed reply stating inter-alia that the immovable property was purchased by the Complainant through an open auction held on 05.09.1972 for a bid amount of Rs.44,000/-. After receipt of 75% of the bid amount, the possession of the plot was handed over to the attorney of the Complainant on 02.04.1973 and the lease deed of the plot was executed on 17.08.1981. Thereafter the main file of the plot was called by the Commissioner of Police in connection of investigation in FIR No.293 dated 09.07.1988 and the same was sent through Vigilance Department of OPs/DDA. The Special Crime Branch stated that the concerned file seized on 27.01.89 and clubbed with the case file had been misplaced and not traceable despite best efforts. The OP sought approval of the competent authority for reconstruction of the part file to process the case for conversion of plot from the leasehold to freehold.  Thereafter, the OP referred the case to their field staff for inspection and furnishing inspection report. The inspection report revealed that the building has been constructed upto 3^rd floor with the basement. Only 2 nos. of flats were intact on the ground floor and basement portion in which one Sh. P. K. Mathur was residing in front portion and the rear portion of the flat and basement was found locked. Sh. P. K. Sh. P. K. Mathur/occupant stated that he had purchased the flat from the builder who had constructed the building. However, due to some dispute building has been demolished by Govt. Agency. No encroachment on public land was found. The OP has further sated that one Sh. O. P. Chopra vide his letter dated 24.06.13 furnished a copy of agreement said to have been executed on 16.03.190 between the Complainant and Ms. Chopra Land Developers which among various things containing provisions as per clause 10 & 11 of the agreement that in case of any dispute the decision of sole arbitrator is binding upon both the parties.   The OP has further stated that as per versions of Sh. O. P. Chopra “the application of Complainant for conversion of plot is completely defected title and the same cannot be processed till title of the claim is processed.” The OP has further brought out that as per order dated 02.03.07 passed in Civil Appeal No.1134/07 the Hon’ble Supreme Court has set aside the exparte order passed by the Trial Court at Faridabad making award dated 29.03.1994 rule of the court and the Hon’ble Supreme Court further directed to restore the matter to the file of Court of Addl. Civil Judge (Sr. Division) Faridabad in case No. 7 instituted on 12.04.1994. The OP has further brought out that they requested Sh. O. P. Chopra to furnish the attested copy of awarded pronounced on 29.03.94 by the Sole Arbitrator which was furnished by him. The OP has further taken stand that “in this case conversion application of Complainant was pending which cannot be considered as he has sold the property and executed the agreement to sell. This shows that the plot was sold to M/s Chopra Land Developers through Sh. O. P. Chopra S/o Sh. A. N. Chopra and the developers has carried out construction over the plot. Based on the information given to OP by Sh. O. P. Chopra vide letter dated 18.11.13 that the title of the property is in dispute as such conversion cannot be considered at this stage as he has sold the property.” The OP has cited “condition No.9 of the brochure of the scheme in case of any legal dispute relating to title of the property, conversion shall not be allowed until the legal dispute is settled.” The OP has accordingly prayed for dismissal of the complaint with exemplary cost.

Complainant has filed rejoinder to the written statement of OP reiterating the averments made in the complaint and also denied the contentions of the OP stating therein that the property was not meant for commercial use but it is meant for residential use.  Complainant has further rebutted the stand of OP regarding auction purchase of property stating therein that “Consumer Protection Act relates to commercial use of a property and is in no way concerned whether the property is purchased in auction or not”. The Complainant has reiterated that when the OP accepted conversion fee of Rs.3,40,653/- on 26.12.2011 they rendered themselves bound to provide service regarding conversion of plot from leasehold to freehold.  The Complainant has further relied upon page 5 of the brochure for conversion scheme stating thereby that 90 days time has been fixed for conversion the property from leasehold to freehold which lapsed on 26.03.2012.  The Complainant has further averred that the cause of action also arose on 07.03.12 when the OP instead of converting the plot to freehold informed the Complainant in response to his RTI application that “the main file of the property under reference is with the Crime Branch for some investigation.” The Complainant has also alleged that nexus between DDA officials and brokers to forge duplicate documents of the main file as the Vigilance Department vide letter dated 17.08.88 enquired  into circumstances of the misplaced file. This fact has also been linked by the Complainant with the newspaper cutting (copy annexure C-7).  Controverting the reliance of OP on Development Agreement dated 16.03.1990 which is only an agreement for development of the plot agreement dated 16.03.1990 (copy annexure C-8). Therefore, no sale or purchase had taken place and the Hon’ble Supreme Court has held that Developer cannot derive any title from the agreement dated 16.03.1990 (copy Annexure C-9).  As regard rejection of application of Complainant for seeking extension of time on the grounds of not depositing of Rs.3,142/- demanded on account of interest charged for belated payment of 25% premium vide show cause notice dated 17.05.84, the Complainant has  averred that  the stand taken by OP was a concocted story to save their behind after committing a crime on the simple analogy that as per statement of the OP the main file of the plot went missing on 04.01.1984 and resurfaced on 07.07.88.  

In short, the Complainant has further controverted the averments made by the OP regarding dispute pertaining to the title of the property by relying upon following facts and documents:-

1. The award of the sole arbitrator as per Annexure OPW/13 regarding disputed title of the property has been set aside by the Addl. Civil Judge, Faridabad vide order dated 27.05.2010 at the instance of Hon’ble Supreme Court of India.
2. The Hon’ble Supreme Court vide judgment dated 02.03.2007 has inter-alia observed that “the Owner’s agreement dated 16.03.1990 with Developer is “purely a development agreement to develop whereby a party agrees to develop a certain property for a certain consideration. The Developer is merely a financer and the Owner continues to remain the Owner of the asset. The Developer funds the scheme to develop the asset of the Owner. This development agreement is not an agreement to sell  and does not involve any sale purchase or transfer of ownership rights of the Owner’s property”
3. In response to RTI application of Sh. P. K. Mathur, the Assessor & Collector, MCD, South Zone, R. K. Puram New Delhi replied to applicant on 15.04.2010 that “as per record, the property G-13 Saket, New Delhi stands assessed in the name of Sh. Jatinder Nath Sood”.
4. In terms of Annexure C-16, Sh. Mukesh Kr. ACMM/SD/Saket on 04.10.2012 has inter-alia held that “in view of the submissions made by the applicant as well as by the Complainant, since it is a case of forgery and cheating where some imposter had forged and fabricated certain documents in respect of property in question against which the charge sheet has been field by the IO. In totality, the property in question is not in dispute in any manner as submitted by the parties.

In these circumstances, this court has no objection if the applicant got it freehold from DDA. (Copy annexure C-16)”

Complainant has filed his own affidavit in evidence. On the other hand affidavit of Sh. Anil Kumar Sahni, Director RL has been filed in evidence on behalf of the OP.

Written arguments have been filed.  We have heard the arguments and have also gone through the file very carefully.

Now we advert to the following issues:-

1. Whether the complaint is maintainable in view of the purchase of immovable property in auction and also whether the complaint is time barred?
2. Whether the  guidelines of  OP containing in the brochure at page 5 regarding conversion of the property from leasehold to freehold have a binding effect upon the parties?
3. Whether the stand of OP that owing to dispute in title of the property in the name of Complainant, conversion from leasehold to freehold is not permissible?

Issue No.1

Whether the complaint is maintainable in view of the purchase of immovable property in auction and also whether the complaint is time barred?

Undisputably the fresh cause of action for filing the complaint arose on 26.12.2011 when the OP accepted conversion of Rs.3,40,653/- towards charges for conversion from leasehold to freehold and also the cause of arose on 26.03.2012 lapsed on expiry of 90 days from the date of depositing fee for conversion in terms of page 5 of the brochure of the conversion issued by OP. Further the cause also arose on 18.12.2012 when the OP stated in response to the RTI application of the Complainant that the photocopy of the file has been retained.

The contention of OP in relying upon the judgment of Hon’ble Supreme Court in UT Chandigarh Administration and Anr. Vs. Amarjeet Singh II (2009) CPJ 1 (SC) that the sale of immovable property by way of auction does not render the Complainant within the definition of consumer is misplaced for the simple reason that the Complainant has pleaded deficiency in service on the part of OP for the failure to convert the property from leasehold to freehold which has no connection with mode of purchase of the property as the Complainant has not pleaded for any deficiency in service regarding the property. Therefore, the complaint is maintainable and also the complaint has been filed within the prescribed time on 06.11.2013 after the OP received the conversion fee on 26.12.2011 and also the OP responded the Complainant regarding retention of photocopy of the missing file demonstrating thereby deficiency.

Issue No.2

Whether the guidelines of OP containing in the brochure at page 5 regarding conversion of the property from leasehold to freehold have a binding effect upon the parties?

The brochure issued by the OP regarding conversion of property from leasehold to freehold are indeed guidelines but para 19 of the brochure regarding prohibition of conversion due to legal dispute of the property has no relevance to the issue at hand for the simple reason that the property is indeed free from any legal  dispute as demonstrated by the OP. Hence, the plea of OP in this regard is untenable.

Issue No.3

Whether the stand of OP that owing to dispute in title of the property in the name of Complainant, conversion from leasehold to freehold is not permissible?

The Complainant has amply demonstrated that the property No. G-13, Malviya Nagar Ext (Now Saket) New Delhi belongs to the Complainant and there is no dispute to this effect by the following  documents.

1. The Addl. Civil Judge, Faridabad vide order dated 27.05.2010 at the instance of Hon’ble Supreme Court of India has set aside the award of the sole arbitrator dated 29.03.1994 wherein the sole arbitrator had interalia passed the award that the Sh. Jatinder Nath (Complainant) shall transfer the ownership right of first floor and basement and ground floor in favour of the  claimant i.e. the builder. Reliance of OP on award of Sole Arbitrator is destructive to them.
2. The Hon’ble Supreme Court vide judgment dated 02.03.2007 has inter-alia observed that “The developer is merely a financer and the owner continue to remain the owner of the asset. Reliance of OP on the observation of Apex Court goes against them.
3. In response to RTI application  of Sh. P. K. Mathur, the Assessor and Collector MCD South Zone R. K. Puram New Delhi replied to applicant on 15.04.2010 that “ as per record, the property G-13 Saket New Delhi stands assessed in the name of Sh. Jatinder Nath Sood”.
4. In terms of Annexure C-16, Sh. Mukesh Kr. ACMM/SD/Saket on 04.10.2012 has interalia held that “in view of the submissions made by the applicant as well as by the Complainant, since it is a case for forgery and cheating where some imposter had forged and fabricated certain documents in respect of property in question against which the charge sheet has been field by the IO. In totality the property in question is not in dispute in any manner as submitted by the parties.

Without indulging into the mystery of missing file and allegations of fraud, we do find that the OP is came out with lame excuse to delay the conversion process having themselves admitted about the retention of the photocopy of the file. Infact a photocopy of the file should have been sufficient to process the case for conversion. To sum up OP has obfuscated the genuine claim of the Complainant under the garb of disputed title deed. Therefore, the allegations of OP regarding dispute in title property are misplaced and ill founded.

In view of the above discussions, we allow the complaint and direct OP to initiate necessary actions for conversion of leasehold property to freehold property and also to pay a sum of Rs.1 lac towards compensation and cost of litigations to the Complainant for causing him harassment and mental agony.

The order shall be complied within 30 days of receipt of this order failing which OP shall become liable to pay interest 6% per annum from the date of filing of the complaint till its realization.

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   .03.16.

(S S FONIA )                                                                                                                                                                 (N.K. GOEL)  MEMBER                                                                                                                                                                     PRESIDENT