DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.123/16
Shri Mohit Goel
S/o Shri B.M. Goel
R/o 178 MIG Flat, Suraj Apartment
Pull Pehlad Pur, New Delhi. …Complainant
VERSUS
Delhi Development Authority
Vikas Sadan, New Delhi
Through its Chairman
The Deputy Director (Housing)
Delhi Development Authority
Vikas Sadan, New Delhi.
Senior Accounts Officer (SZ) NP
D Block III Floor
Delhi Development Authority
Vikas Sadan, New Delhi. …Opposite Parties
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Date of Institution :27.04.2016
Date of Order :05.08.2022
Member: Shri U.K.Tyagi
Complainant has requested to pass an order directing the Delhi Development authority (hereinafter referred to as OP) to do the conversion of flat No.178 MIG Suraj Kund Apptt., Pul Pehlad Pur, New Delhi from lease hold to free hold; (ii) to pay a sum of Rs.3,29,720/- to the complainant which was paid as penalty alongwith interest @ 18% per annum; (iii) to pay a sum of Rs.1,50,000/- as compensation towards mental agony etc. etc.
Brief facts of the case are as under:-
Shri Brij Mohan Gupta, the complainant applied for conversion from lease hold to free hold of MIG Flat No. 178 1st Floor, Pehald Pur vide application No. 114436 dated 12.01.2012 alongwith requisite documents. It is apt to mention that the said flat was allotted to Smt. Raj Rani Jain, being registrant under New Pattern Registration Scheme 1979, on semi-cash down basis. Demand-cum-allotment (DAL) was issued with request to make payment as per schedule provided therein. There was condition for cancellation of allotment if the demanded amount is not paid till 11.06.1992. the complainant deposited Rs.1,92,800/- on 30.12.1998 against Rs.1,88,623/-. It was averred by the complainant that letter of semi-cash down was misplaced. On his request, the approval of the Commissioner for semi cash down was received on 13.11.2014. The OP vide its letter dated 24.02.2015 asked the complainant to deposit an amount of Rs.3,73,095/- (including penalty of Rs.3,27,249/- and monthly instalment of Rs.32,960/-). The complainant assailed the instalment on being higher side as unjust and arbitrary. The complainant requested OP to waive off the penalty on 18.06.2015 but OP did not accede to the above request vide its letter dated 28.07.2015 and requested to deposit the sum of Rs.3,75,566/- (now penalty amount was shown Rs.3,29,720/- instead of Rs.3,27,248/-). The complainant deposited a sum of Rs.1,18,100/- to the OP on 12.01.2012 as conversion fee from lease hold to free hold. The OP did not provide satisfactory reply for the higher amount of penalty. Hence the complaint.
OP, on the other hand, filed written reply inter alia raising preliminary objections. The complainant is not consumer as defined under the provisions of CP Act, 1986. Further, it is also averred that after taking possession of flat in question, the complainant does not remain a consumer. It was also stated that the complaint is liable to be rejected on the fact that the Hon’ble Apex Court in the case of DDA Vs. Vijaya C. Gurushaney & Another (2003) 7 SCC 301 held that the DDA is a creature of statute and, therefore, the policy decision or guidelines formulated by DDA have a binding effect. Further it was contended that the terms & conditions of allotment are binding on the parties as held by Hon’ble Apex Court in the case of Skyline Contractor Vs. State of UP on 09.07.2008.
The OP maintained that the said allotment was made on cash down basis. There was automatic cancellation of allotment if demanded amount is not paid till 11.06.1992. It was also accepted by the OP that main file was not traceable. The outstanding dues were calculated by the Account Branch of OP i.e. Rs. 10,81,690/- which was payable by the applicant as on or before 31.12.2012. The said demand was communicated vide letter dated 12.11.2012. The complainant vide its letter dated 26.11.2012 had stated that the allotment of said flat was converted from cash down into semi cash down. Demand-cum-allotment letter shows that the allotment was on cash down basis.
The OP has further stated that the Amnesty Scheme 1998 is applicable for allotment of Hire-Purchase as per para 4.1 of the said Scheme and the allottee was required to clear upto date instalments by 31.12.1998 and to clear interest dues by 28.02.1999. It was also averred that there is no proof of change of mode of payment from cash down to semi cash down in the records of OP. It was only in 2014 that the said request of the complainant was approved by the Commissioner of OP.
Both the parties filed written submissions and evidence in-affidavit. Written statement is on record so is rejoinder. Oral arguments were heard and concluded.
This Commission has gone into the entire gamut of issues placed on record. Due consideration was also given to the arguments advanced by the parties. The preliminary objection of the OP for admission of complaint as consumer as defined in the CP Act, was assailed by the complainant citing the judgment of Hon’ble Supreme Court in the case of Lucknow Development Authority Vs. M.K. Gupta and further quoted the ratio of the said judgment as under:-
“Consumer Protection Act (68 of 1986) : “The provisions of the Act have to be construed in favour of the consumer to achieve the purpose of enactment as it is asocial benefit oriented legislation. The primary duty of the court while construing the provisions of such an Act is to adopt a constructive approach subject to that it should not do violence to the language of the provisions and is not contrary to attempted objective of the enactment,”
Further, the counsel for complainant has also placed reliance on the ratio of judgment in the case of Narne Construction Pvt. Ltd. & Ors. Vs. Union of India & Ors. 2012 5 SCC 35, where the Hon’ble Supreme Court took the similar view as stated above and held that the activities of the appellant company in the present case involving offer of plots for sale to its customers/members with the assurance of development of infrastructure/amenities, layout approval etc. was a “service” within meaning of Section 2(1)(O) of the Act and would, therefore, be amended to the jurisdiction of the statute”. After having respectful considerations for the above judgment, the objections of the OP are not sustainable. As regard to the complaint being time barred the Commission noted that case is not found time barred as the settlement of dues remained pending with OP. The relevant file on which decision of semi-cash down was taken, remained untraced and many activities could not be completed in view of the above. The other objections as contended by OP in its reply are not sustainable as facts of the instant complaint are entirely on different footing.
This Commission minutely examined complaint and counter reply of the OP. The whole controversy of the case seems around whether the allotment was converted into semi cash down in 1992 and the Amnesty Scheme is applicable or not.
It was noticed from the records available with the Commission that the main file relating to this allotment of flat was not traceable as maintained by OP. But it is noticed that the possession of the flat was given on 15.12.1992. As contended by the complainant that total cost of the flat was reflected Rs.3,93,700/- and half cost of the flat was deposited i.e. Rs.1,95,286/- on 10.07.1992 and other half cost was converted into instalments. The complainant further stated that total balance of Rs.1,92,800/- was deposited on 30.12.1998 under the Amnesty Scheme-98 by which the whole amount should have been deposited upto 31.12.1998.
On the contrary, the OP maintained that the outstanding dues were got calculated by Accounts Branch of OP i.e. Rs.10,81,690/- which is payable on or before 31.12.2012. On this, the complainant wrote back to OP stating that the flat in question is on semi cash down payment. But the copy of said order of conversion from cash down to semi cash down was not available. The OP stated that in the interest of the complainant, the approval of semi cash down was obtained with 50% cash down deposited and remaining 50% to be deposited in 8 instalments in two years on 07.10.2014 from competent authority. The complainant had not deposited the outstanding amount within time frame.
After having considered the above narrations of both parties, there appears truth in the averment of the complainant that he was allowed to make payment on semi cash down basis. There is strong probability that after making half payment, he was given possession of the flat. Otherwise if it had not been so, the possession of said flat could not have been given without having deposited entire payment as per Demand cum Allotment Letter (DAL). The complainant further maintained that balance amount as required under the Amnesty Scheme was paid. The OP has stated that the proof of payment of Rs.32,960/- dated 24.07.2015 and Rs.3,42,606/- dated 22.09.2015 has been intimated by the complainant. As per OP, there appears to be some outstanding dues. It was not understood that how the complainant had covered himself under the Amnesty Scheme. The applicability and non-applicable Clause of the Amnesty Scheme have been gone through whereby we feel that the complainant is not covered in the said Scheme. We accept that complainant was allowed under semi cash down scheme. It is vividly clear from para 3.0 of the said Amnesty Scheme that allotment on semi cash down basis is not applicable. It is not understood why the complainant is trying to take benefit of the said Scheme. Therefore, this Commission does not have any opinion but to go with the account statement as prepared by Account Branch of OP.
In view of the above facts and circumstances in the case, this Commission feels that the complainant has not brought complete facts of the case. But this Commission feels that there is deficiency in service on the part of OP as the relevant file was found untraceable. As such, the OP is directed to reconcile the accounts related to the said flat within two months to ascertain the dues, if any, so as to enable the complainant to clear the dues. Thereafter the conversion of lease hold to free hold shall be completed within one month thereafter, if not done earlier failing which the penalty of Rs.50,000/- shall be levied on the OP to be paid within two months thereafter.
File be consigned to the record room after giving copy of the order to the parties as per rules.
