DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
UDYOG SADAN, C-22 & 23, QUTUB INSTITUTIONAL AREA
(BEHIND QUTUB HOTEL) : NEW DELHI – 110016.
Case No. 387/08
Sh. Ram Sawrup Chowdhary, SENIOR CITIZEN
S/o Late Sh. Asa Nand,
House No. H-34, Kalkaji,
New Delhi – 110019. - Complainant
Vs
-
Through Vice Chairman, DDA
Vikas Sadan, Behind INA Market,
New Delhi
-
Vikas Sadan, Behind INA Market,
New Delhi - Opposite Parties
Date of Institution: 19.06.2008 Date of decision: 09.05.2016
Coram:
N.K. Goel, President
S.S. Fonia, Member
O R D E R
S.S. Fonia, Member
Briefly stated, the case of the complainant is that he submitted an application No. Z088165 dated 9.8.1979 for allotment of house under NPRS-1979 in the MIG Category by making initial deposit of Rs. 4500/-. After waiting for a long he was allotted flat No. 119, Pocket-I, Sector-23, Dwarka against file No. M041(457)/96/DW/NP in the draw held on 7.8.1996. He was directed to deposit Rs. 5,78,602.99 till 9.2.1997.
This amount was deposited by him on various dates commencing from 27.11.1996 to 5.2.1997. He vide his letter dated 25.4.2000 requested the OPs for handing over the possession of the flat due to non response from the OPs. Possession letter was issued to him by the OP vide letter dated 11.3.2003 but with the direction to take possession within 90 days and visit the office of JE within 30 days. The complainant is stated to have met JE on 8.4.2003 when he was taken to the said flat by the JE. The complainant states that “the complainant was shocked to see the flat which was constructed by the Respondent. The said flat had umpteen shortcomings which was admitted by the said JE and it was mutually agreed that first Respondent shall remove the said shortcomings then the possession shall be delivered. But the said JE never called the complainant and again the complainant visited on 22.5.2003 and noticed that there were still lot shortcomings/discrepancies”. The flat allotted to him was not ready for possession and it had various shortcomings even when DDA had accepted the payment in cash down category. The complainant noticed from the file that the papers of Conveyance Deed were sent to him on 22.4.1997 through courier as informed by the Dealing Asstt. which in fact had never reached him at all till 25.4.2000 and even afterwards. The complainant submitted four copies of duly filled in Conveyance Deed on 22.9.2000 and also a sum of Rs. 48244/- was deposited in State Bank India, Vikas Sadan INA Branch. This was intimated to the OPs on 13.11.2000 with a request to issue the possession letter. The complainant kept on visiting the office of the OPs but the officers of the OPs kept on delaying the matter on one plea or other. After lot of persuasion the complainant was asked to deposit the water charges which he did but failed to get the possession of the flat. This constrained him to issue letter to OPs on 23.3.2005 and 4.4.2005. The complainant in a meeting on 6.6.2005 with the OPs was told by the JE Sh. M.P. Sharma that possession letter was sent by him to the office of the OPs but the said letter was not found in the file of OPs during his meeting. OP-2 requested the complainant to give original possession letter to them with the promise that the same will be returned to him after due revalidation. Thereafter, the complainant was asked to deposit Rs. 29,500/- towards watch and ward charges and Capitalization service charges of Rs. 7783/- vide their letter dated 16.2.2006 with direction that without the payment the possession shall not be delivered. The complainant deposited the said amount under protest on 18.2.2006 under intimation to OP-1 & 2 vide his letter dated 21.2.2006. No response was received by him till he sent reminders on 23.3.06, 4.5.06 and 15.5.06. After this the copy of possession letter in original duly revalidated was sent vide letter dated 22.5.06 by OPs with the direction to take over the physical possession of the flat. The complainant was delivered the flat on 14.6.2006 after lot of persuasions. He states that the said flat still had lot of civil and electrical shortcomings. The concerned JE civil made a list of shortcomings and a copy thereof was given to him but these shortcomings were never removed by the OPs and the complainant had to take the possession of the flat in the said condition as he had already been harassed by the OPs. The complainant further states that these shortcomings were removed by the complainant himself after incurring expenditure from his own pocket. It is stated as under:
“That this was a deliberate act of the OPs collectively and intentionally for delaying the possession of the aforesaid property. It is submitted that the Respondents are liable to pay the interest @ 18% P.A. from the date of deposit of amount and till delivery of property and damages for delaying of the Possession. The Complainant is not liable to pay the amount of watch and ward charges i.e. Rs. 29,500.00 and Capitalization service charges Rs. 7783.00.”
Aggrieved by the harassment meted out to him by the OPs and pleading deficiency in service he filed the complaint on 19.6.2008 before this Forum praying inter-alia the following:
- Pass an order in favour of the complainant and against the OPs that letter dated 16.2.2006 seeking to pay the amount of watch and ward charges i.e. Rs. 29,599.00 and Capitalization service charges Rs. 7783.00 is null and void.
- Pass an order in favour of the Complainant and against the OPs that the OPs are liable to pay interest on the entire amount from 27.11.1996 i.e. the first date of deposit till the date of delivery/possession of the aforesaid property i.e. 14.6.2006 at the rate of 18% p.a.
- Pass an order in favour of the Complainant and against the OPs that the complainant is entitled for damages for non-allotment of his property since 1997 amounting to Rs. 6,00,000/-.
- Pass an order in favour of the Complainant and against the OPs that to pay Rs. 5,00,000/- on account for damages for harassment, breach of contract and expenses towards telephonic calls, visits to the office of the OPs, correspondence etc.
In the written statement OPs have stated as hereunder:
“In this case a MIG flat bearing No. 119, Third Floor, Pkt. 1, Sector-23, Dwarka was allotted to the complainant/Shri Ram Swarup Chowdhary on 7.8.96 and the demand-cum-allotment letter was issued to him on 4.11.96-11.11.96 with the request to deposit the cost of flat as per schedule mentioned therein. On receipt of the initial deposit and required documents, the possession letter of the flat was issued to him on 11.3.03 with request to take over the possession of the flat within 90 days from the date of issue of the possession letter. The complainant did not take over the possession due to alleged defects in the flat. The concerned Executive Engineer, DDA reported that the flat is complete in all respect except fitting and fixtures, which is done when the allottee appears to take over the physical possession. He also reported that the basic amenities i.e. water and electricity are available since 4/2000 and 10/1999 respectively.
DDA vide letter dated 16.2.06 requested the complainant to deposit Rs. 29500/- on account of watch and ward charges and Rs. 7783/- towards capitalized service charges. The complainant requested to waive of watch and ward charges, his request was examined but could not be acceded to. Thereafter, complainant deposited the watch and ward charges vide challan No. 3442 dated 18.2.06.
Thereafter, the possession letter, after revalidation, was issued/sent to the complainant vide letter dated 22.5.06 and the complainant took over the possession of the flat in question on 14.6.2006. After taking over the possession of the flat, the complainant vide letter dated 31.7.06 requested to give a date for execution of conveyance deed. His request was examined and he was requested to appear on 26.9.06 to execute the conveyance deed of the flat in question. Accordingly, the conveyance deed was executed by DDA on 26.9.06.”
It is prayed that the complaint be dismissed as the complaint is false.
Complainant has filed replication ascertaining the averments made by him in the complaint and denying the allegations made by the OPs.
Complainant has filed his own affidavit in evidence. On the other hand, affidavit of Sh. O.P. Gupta, Director has been filed on behalf of OPs.
Written arguments have been filed on behalf of both the parties.
We have heard the arguments and carefully examined the material placed before us dispassionately.
We, now, formulate the issue, whether the relief prayed for is admissible to the complainant?
Admittedly, the demand-cum-allotment letter was sent to the complainant on 4.11.1996-11.11.1996 but the complainant was given the possession of the flat on 14.6.2006 after a gap of 10 years though undisputedly the entire amount towards the cost of the flat had been deposited by the complainant on various dates commencing from 27.11.1996 to 5.2.1997 and the possession letter of the flat was issued to him on 11.3.2003 vide letter marked as Annexure I for the purposes of identification. The main reasons for the delay are attributable to the following:
- Time taken by the OPs in issue of letter for conveyance deed which was said to have been sent on 22.4.1997 but never reached the complainant.
- Time taken by the OPs to handover the possession to the complainant till 6.6.2005 when the JE of the OPs came out with the excuse that the possession letter sent to him by the OPs was not found in the file of the OPs till original possession letter was given by the complainant himself. This endorsement is admittedly found in Ex. OPW/3 wherein allotment letter was revalidated by the OPs vide their letter dated 26.5.06
- The complainant did not take the possession of the flat for the reasons that the same was not complete in all respects and sanitary installations were not provided till 2.8.2005 when the flat was inspected by officer of OPs. This is clearly revealed from Annex. A.
- The complainant requested the OPs for considering his case to waive water charges, ward charges and Capitalization service charges which was examined by the OPs but could not be acceded to by them. This took sometime by the complainant till he deposited the aforesaid amount on 18.2.2006. However, bottom line of Annex. A clearly shows that OP in a note dated 5.8.2005 have opined that “no watch and ward charges / restoration charges should be taken from the allottees”.
The complainant has filed copies of notings on his file by the officers of DDA (obtained by him under the RTI Act) inter-alia bringing out report of inspector and inquiry by one Mr. B.S. Malik, AE II/ENF(H) Dated 2.8.2005. This report (Page 6N and & 7N) reflects following deficiency:
Page 6N
“I visited the site office of AE/JE at sector 23 on dated 12.7.05 and 20.7.05, but all the time JE & AE were not available hence enquiry could not done.
AE/Eng (H) Dwk
Mrs. Prabha Sd/-/28.7.05”
Page 7N
“The flat has been inspected and inquiry has been made from the Junior Engineer concerned Sh. M.P. SHARMA.
The flat is still not complete in all respects. Sanitary installations are not yet provided. Sh. M.P. Sharma, JE, has told that no written communication was made with allottee at the level AE/EE informing him that the flat is ready and he may take physical possession with in a specified time. None of the letters written by the allottees have ever been replied by the concerned EE/AE.
A cursory look at this file also shows that the allottee has been representing to various authorities for getting the physical possession and rectification of defects. His representations are on record at CP-32, 27, 31, 33, 38, 42, 52, 56, 61. He has also appeared in public Hearing before Comm (H) on 2.6.05 (CP-58), on 26.5.05 (CP-64) and on 30.6.05 (CP-65).
Allottee has also deposited Advance Water charges on 28.8.03 (copy of receipt placed at CP-63) which shows that he has been visiting site office for taking physical possession from the field staff.
Submitted please.
Sd/-/2.8.05
R.S. MALIK
AE II/ENF(H)
Jt. Dir-I Enf(H)”
Noting made on Page 8N is very very important. The same is reproduced as hereunder:-
“A MIG flat at Dwarka was allotted to Sh. Ram Swaroop Chaudhary on 7.8.96. On receipt of the demanded amount and requisite documents, possession letter was issued on 11.3.2003. As per the terms and conditions of possession letter, the physical possession at site should have been taken over by the allottee within 90 days from the date of issue of possession letter. The physical possession could not be taken over by the allottee. The allottee submitted the possession letter in this office on 6.6.2005 for revalidation.
The allottee met the undersigned in public hearing and informed that he attended the site office many times but could not take over the physical possession as the flat was not ready. Thus he is not liable to pay Watch & Ward Charges.
A details site inspection report was obtained, the same is available at page 7/N. As per the report, the flat under reference is still not complete.
In view of above facts, we may re-validate the possession letter without charging Watch & Ward Charges. As the power of waiver of penalty is vested with Vice Chairman, we may submit the file to VC for approval of re-validation of possession letter without levying Watch & Ward Charges.
Sd/-
(Asma Manzar)
Commissioner (Housing)”
Further notings further show that the same Commissioner (Housing) on 19.9.2005 advised that before taking any further action in the matter a detailed report in respect of other flats in the same Sector & Pocket may be called for. Vide noting dated 20.9.05 made by Sh. R.S. Malik, AE-II/Dwk, it was observed that the matter being very complex and the desired report as asked for all the flats can only be provided by the field staff of the Engineering wing being the better equipped with complete record. The file be sent to C.E. Dwarka for furnishing the desired report. Very surprisingly enough the notings seem to have been made between some officials of the DDA. There was some tug of war and exchange of opinion and uncalled for comments between them. For the ready reference, the following relevant noting is reproduced hereunder:
“Refer to your above remarks alleging the undersigned for delaying the matter and giving unnecessary comments. The above remarks are far from facts and without any base/justification and merely on presumption. This is simply to put blame on the undersigned. (italics ours)
To make the things in order and to bring out the facts, it is suggested if approved, that J.O.I Enf(H) should also visit the site and may suggest the earliest date of inspection so that we may jointly visit and decide.
Sd/-
4.10.05
R.S. MALIK
AE IIi/ENF (H)
JOINT Dir. I Enf(H)”
The subsequent order-sheets show that they sought the detailed reports regarding waiver of watch and ward charges and Capitalization service charges and the same were directed to be waived and revalidation possession letter to be issued to the complainant.
Notings made by the officials of the DDA themselves prove that there were shortcomings in the fittings in the flat in question and the flat in question was not ready for occupation. Therefore, the fault, if any, was on the part of the officials of the DDA/OP and the complainant cannot be blamed for the same.
It is a matter of common knowledge that once the allotment letter issued to the allottee by the OP, it is legitimate expectation of the allottee to receive the flat in habitable condition. However, in the present case, the complainant had to wait for a period of 10 years in getting the possession of the flat without removal of the defects in the flat which the complainant himself rectified by incurring expenditure from his own pocket.
OP being instrumentality of State must take care of public in dealing with basic necessity of life like housing. OP has also misused its dominant position by delaying handing over of possession to the complainant more than 3 months of issue of possession orders. Therefore, the complainant had indeed been put to harassment and mental agony for almost a decade in giving actual physical possession of the flat.
In view of the above, we hold that the complainant was not liable to pay Rs. 29,500/- towards Watch & Ward charges and Rs. 7783/- towards Capitalization Service charges. We also hold that the complainant was made to suffer mental pain and agony for no fault of his only because of difference of opinions between the officers/officials of the OP/DDA. Therefore, we hold the OP guilty of deficiency in service. We, therefore, allow the complaint and direct the OP to refund Rs. 29,500/- towards Watch & Ward charges and Rs. 7783/- towards Capitalization Service charges and to pay Rs. 2 Lacs in lumpsum as compensation to the complainant for physical harassment, mental agony and also cost of litigation within 30 days from the date of receipt of copy of this order failing which OP shall become liable to pay the entire amount along with interest @ 9% p.a. from the date of filing of complaint till the actual payment.
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 09.05.2016
(S.S. FONIA) (N.K. GOEL) MEMBER PRESIDENT
Case No. 387/08
9.5.2016
Present – None
Vide our separate order of even date pronounced, the complaint is allowed. OP is directed to refund Rs. 29,500/- towards Watch & Ward charges and Rs. 7783/- towards Capitalization Service charges and to pay Rs. 2 Lacs in lumpsum as compensation to the complainant for physical harassment, mental agony and also cost of litigation within 30 days from the date of receipt of copy of this order failing which OP shall become liable to pay the entire amount along with interest @ 9% p.a. from the date of filing of complaint till the actual payment. Let the file be consigned to record room.
(S.S. FONIA) (N.K. GOEL) MEMBER PRESIDENT
