Delhi

East Delhi

CC/68/2017

MAHABIR - Complainant(s)

Versus

DSIIDC - Opp.Party(s)

11 Sep 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

 

C.C. NO. 68/17

 

Shri Mahabir

S/o Late Shri Banwari Lal

R/o House no. 81, Site-2

Vikas Puri, New Delhi – 110 018                                 ….Complainant

Vs.    

The Divisional Manager (Housing)

Delhi State Industrial and Infrastructure

Development Corporation Limited (DSIIDC)

FIE Block, Plot No., 419, Patparganj Industrial Area

Delhi – 110 092                                                              …Opponent

 

 

Date of Institution: 14.02.2017

Judgement Reserved on: 11.09.2019

Judgement Passed on: 23.09.2019

 

CORUM:

Sh. Sukhdev Singh (President)

Dr. P.N. Tiwari (Member)

Ms. Harpreet Kaur Charya (Member)

 

Order By: Sh. Sukhdev Singh (President)

 

JUDGEMENT

          This complaint has been filed by Shri Mahabir against Delhi State Industrial and Infrastructure Development Corporation (DSIIDC) Limited (OP) under Section 12 of the Consumer Protection Act, 1986 with allegations of unfair trade practice and deficiency in service. 

2.        The facts in brief are that the complainant submitted an application form no. 14118 dated 30.03.2007 for opting flat Type-I New, Area        31.60 sq.mt., Code no. 12 under Scheduled Caste Category with Delhi State Industrial and Infrastructure Development Corporation Limited (OP) under 2nd Rajiv Gandhi Housing Scheme and deposited an amount of              Rs. 27,000/- through DD no. 029279 dated 30.03.2007 of union Bank of India, Rajouri Garden.  He was declared successful in the ‘Result of Draw for Category of flats: Type I New under the category of Scheduled Caste’ on 24.01.2012.   He received letter no. DSIDC/2^nd RGHS/Vol.I/2014/App. No. 14118 dated 08.08.2014 from OP, wherein the allotment of the flat to the complainant was cancelled on the basis that he was not eligible for allotment of flat on account of “Applicant retired from job and factory shifted to Gurgaon”. The last date of filing representations, if any, against the verification report was extended from 24.07.2014 to 22.08.2014.  The complainant visited the office of OP and was assured that so long as the registration amount of Rs. 27,000/- was deposited with them, he cannot be declared ‘Not Eligible’. 

In January, the complainant received letter no. DSIDC/2^nd RGHS/2015/App. No. 14118 dated 04.01.2016 from Divisional Manager (Housing) alongwith cheque no. 059129 dated 01.01.2016 for an amount of Rs. 27,000/- towards refund of deposited amount declaring that he was not eligible for  allotment of dwelling unit. 

It was further stated that the complainant returned the original cheque through speed post no. ED969940311IN dated 31.03.2016 stating that he was an industrial worker in Delhi at the time when he applied for that dwelling unit.  On 16.04.2016, the complainant sent another letter stating that he could not found written anywhere in the terms and conditions of the 2^nd Rajiv Gandhi Self Finance Cost Effective Workers Housing Scheme, that any person who has applied for allotment of a flat when he was in service in Delhi will not be allotted a flat if he retires from service at the time of draw of lot or if his factory shifts out of Delhi.   He was an industrial worker in Delhi at the time of applying for that dwelling unit.    

Legal notice dated 28.09.2016 was served to OP vide speed post no. ED162689818IN dated 28.09.2016, reply of which was not satisfactory.  Hence, the complainant has prayed for directions to OP to allot the flat to the complainant; to pay compensation of Rs.10,00,000/- on account of mental pain and agony and also legal expenses.  

3.  

It was stated that OP refunded the deposited amount of Rs. 27,000/- to the complainant vide cheque no. 059129 dated 01.01.2016.However, the complainant returned the amount vide letter dated 04.04.2016.Since the validity of the cheque had expired after three months, the same was not sent to him again.Other facts have also been denied.

4.  

 5.       In support of its case, the complainant have examined himself.  He has deposed on affidavit.  He has narrated the facts which have been stated in the complaint.  He has got exhibited documents such as copy of application form (Ex.CW1/A), copy of draw of lot (Ex.CW1/B), copy of letter dated 08.08.2014 (Ex.CW1/C), copy of letter dated 04.01.2016 (Ex.CW1/D), copy of letter dated 31.03.2016 and 12.04.2016 (Ex.CW-1/E & 1/F) and copy of legal notice and its reply (Ex.CW-1/G & 1/H).

           In defence, OP have examined Shri Vikas Gupta, Divisional Manager (Housing) who have also deposed on oath.  He has also narrated the facts which have been stated in the written statement.  He has got exhibited documents such as copy of brochure of the Rajeev Gandhi Housing Society (Ex.OW-1/A) and copy of allotment cancellation      (Ex.OW-1/B).

6.        We have heard Ld. Counsel for the parties and have perused the material placed on record.  It has been argued on behalf of DSIIDC (OP) that the complainant was not eligible for allotment as per field verification report as it was found that applicant retired from job and the factory shifted to Gurgaon.  It was also argued that the complainant retained the cheque and returned it after its validity which amounts to acceptance of the refund and ousting him from the definition of “consumer”. 

           On the other hand, Ld. Counsel for the complainant have argued that he was eligible for allotment as on the day of filing the application, the factory was in Delhi.  He has further argued that the complainant have returned the cheque and have not accepted the refund.

           To appreciate the arguments of Ld. Counsel for the parties, a look has to be made to the testimony of complainant and Shri Vikas Gupta, Divisional Manager (Housing) of OP as well as the documents placed on record.  To ascertain the eligibility of the complainant, a look has to be made to the brochure of Rajeev Gandhi Housing Scheme (Ex.OW-1/A).  Eligibility under the scheme have been listed in Clause 4, the relevant portion of which is extracted hereunder:-

Clause  4 : Eligibility

1. -
2. -
3. Applicant should be an Industrial Worker in any Industrial Complex of Delhi.
4. -
5. -
6. -

           From a bare reading of this clause, it comes out that the applicant will be eligible if he was an industrial worker in any industrial complex of Delhi. 

To ascertain whether the applicant was an industrial worker in any industrial complex of Delhi, a look has to be made to the field verification report which has been placed on record by DSIIDC (OP).  In column 10 of the said report, name and address of the employer at the time of application in March 2007 have been stated as “Richa & Co., 18/1, WHS, Kirti Nagar, Delhi”.  This shows that when the complainant applied for allotment of flat under the scheme, the factory was at Kirti Nagar which was within the industrial complex at Delhi.  Further, he was an industrial worker in the said factory.  His having retired from the job and the company have been shifted to Gurgaon does not make any difference as far as his eligibility was concerned.  Thus, the fact remains that the complainant was eligible to apply when the scheme was launched. 

           Coming to the second leg of arguments, it has to be seen as to whether return of cheque by the complainant after its validity, takes him out from the definition of “consumer” under the Consumer Protection Act.

The argument which has been advanced on behalf of DSIIDC (OP) have been that the complainant have kept this cheque for a period of three months and by doing so, he has impliedly accepted the refund taking him out of the definition of “consumer” under the Act.  For this, the testimony of Shri Vikas Gupta, Divisional Manager (Housing), DSIIDC (OP) have to be looked into.  He has stated in his testimony that the earnest money deposited by the complainant was refunded on 04.01.2016 through cheque no. 059129 dated 01.01.2016 for an amount of Rs. 27,000/- which he returned through letter of dated 04.04.2016 after the validity of the cheque of three months.   However, the complainant have stated in his testimony that the cheque was returned through letter of dated 31.03.2016.  Though, the complainant have stated that he has returned the cheque through letter of dated 31.03.2016 through speed post, but he has not placed any document on record to show as to when the cheque was sent.  In the absence of that, the date mentioned in the testimony of Shri Vikas Gupta, Divisional Manager (Housing) of DSIIDC (OP) as 04.04.2016 have to be accepted as the date of return of cheque.  Thus, the fact remains that the complainant have returned the cheque after expiry of validity of the same.  By keeping the said cheque for a period of three months, the complainant have impliedly consented to accept the refund of earnest money. 

           Not only that the complainant did not make any representation against the verification report, when he was informed regarding the        non-eligibility though letter of dated 08.08.2014 by DSIIDC (OP) which he was required to make by 22.08.2014.  When he has not made any representation against the verification report within the stipulated period, his silence also amounts to implied consent for taking the refund. When he has impliedly accepted refund of earnest money, he no more remains a “consumer” under the Consumer Protection Act.

           Though the complaint fails on technical ground that the complainant was not “consumer”, but the fact remains that DSIIDC (OP) have retained the earnest amount of Rs. 27,000/-, which he has returned through letter of dated 31.03.2016.  No doubt, DSIIDC (OP) have refunded the earnest amount of Rs. 27,000/- through letter of dated 04.01.2016 for which draw was held on 24.01.2012, the complainant was found non-eligible in the list prepared in the year 2014 after a period of about 2 years from the date of draw.  He has been refunded the amount in the year 2016 that too after a period of about 2 years. 

If Clause 14 of the brochure is looked into, it is noticed that DSIIDC (OP) have to refund the amount with simple interest @5% p.a. to unsuccessful applicants if there has been a delay of 90 days from the date of publication of list of selected candidates.  In the present case, there has been a delay of about 4 years from the date of draw.  When there has been a delay of more than 90 days, and that too about 4 years’, certainly, the complainant was entitled to interest @5%p.a. for the delayed period.

In view of the above, we order that complainant be refunded deposited earnest money of Rs. 27,000/- with interest @5%p.a. from 01.05.2012.  The order be complied within a period of 60 days.  If not complied, the amount of Rs. 27,000/- shall carry interest @5%p.a. from 01.05.2012 and interest @ 9% p.a. from the date of order. 

           Copy of the order be supplied to the parties as per rules.

           File be consigned to Record Room.

 

 

(DR. P.N. TIWARI)                                       (HARPREET KAUR CHARYA)

      Member                                                                    Member

     (SUKHDEV SINGH)

President