NCDRC

NCDRC

RP/937/2014

DELHI DEVELOPMENT AUTHORITY - Complainant(s)

Versus

SHEELA AGGARWAL - Opp.Party(s)

MS. GIRIJA WADHWA

30 May 2014

ORDER

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
REVISION PETITION NO. 937 OF 2014
 
(Against the Order dated 03/09/2013 in Appeal No. 276/2010 of the State Commission Delhi)
WITH
IA/684/2014
1. DELHI DEVELOPMENT AUTHORITY
VIKAS SADAN, INA
NEW DELHI
...........Petitioner(s)
Versus 
1. SHEELA AGGARWAL
W/O SH. RAM PRAKASH AGGARWAL R/O 123, POCKET I, JASOLA VIHAR
NEW DELHI
...........Respondent(s)

BEFORE: 
 HON'BLE MR. JUSTICE D.K. JAIN, PRESIDENT
 HON'BLE MR. JUSTICE V.K. JAIN, MEMBER
 HON'BLE MRS. VINEETA RAI, MEMBER

For the Petitioner :MS. GIRIJA WADHWA
For the Respondent :

Dated : 30 May 2014
ORDER

Date: 30.05.2014

O R D E R

 

          These two Revision Petitions under Section 21(b) of the Consumer Protection Act, 1986 (for short “the Act”) have been preferred by the Delhi Development Authority (for short “the DDA”), questioning the correctness of two orders, both dated 03.09.2013, passed by the State Consumer Disputes Redressal Commission, New Delhi (for short “the State Commission”) in First Appeals No. 275 and 276 of 2010.  By the impugned orders, the State Commission has affirmed the orders made by the Consumer Disputes Redressal Forum-II, New Delhi (for short “the District Forum”) in Cases No. 359 and 360 of 2009, directing the DDA to allot to the Respondents/Complainant the flats applied for and issue Demand-cum-Allotment Letters to them. 

2.      Briefly stated, the material facts are that in early 2004, the DDA announced “Narela Housing Scheme 2004”, offering 3500 ready-built flats under five categories. The applicants were required to give their preferences of the category.  Allotments were to be made by draw of lots.  Clause 8 of the Scheme stipulated preparation of a wait-list for unsuccessful registrants for allotment of the flats surrendered by the allottees.  The relevant portion of THE said Clause reads as follows:-

“….

A separate waiting list of 25% of the flats will also be declared in order of priority. The waiting list will be valid only for 6 months, repeat only for 6 months, from the date of draw. The registration money of the wait listed registrants shall be refunded along with unsuccessful registrants. However, before going for the draw, in case the same takes place for filling up the vacancies, all such eligible waitlisted shall be asked to deposit the registration money. 15 days time shall be given to them to do so and only those name shall be included who would be depositing their registration money prior to the draw. A draw will be held every month (up to 6 months) for allotment of the surrendered flats to the wait listed registrants as per the priority decided initially. The waiting list is created just to ensure that the surrendered flats (if any) are allotted to some registrants rather than kept vacant and the list will be valid only for 6 months, hence it doesn’t create any right of the wait listed registrants if they fail to get a flat from the surrendered ones within 6 months. If successful, the cost would be the cost of the flat on the date of demand cum allotment letter is issued.”

 

3.      The Respondents applied for allotments with preference for the Expandable Housing Scheme (EHS Category). According to the Respondents as they were unsuccessful in the draws, they were kept in the wait list. Having failed to get any positive response from the DDA, the Respondents filed complaints before the District Forum, praying for direction to the DDA to allot flats and issue Demand-cum-Allotment Letter and also pay a compensation of `1,00,000/- on account of mental torture and agony. 

4.      The complaints were resisted by the DDA.  In their Written Statements besides raising preliminary objections to the maintainability of the complaints on the ground that there was neither any deficiency in service nor negligence on the part of the DDA and that the complaints were barred by limitation, it was pleaded that the Complainants being down in order of seniority in the wait-list than the number of flats surrendered, they would not have got the flats even if a draw of lots in terms of Clause 8 had been conducted.  On an appraisal of the material placed on record, the District Forum allowed the complaints and issued the afore-noted directions.   However, no compensation was awarded. Being aggrieved, the DDA filed Appeals before the State Commission but without any success.  While dismissing the Appeals, the State Commission observed as under:-

“In our considered opinion the District Fourm had rightly held that the wait list was prepared, it is also true from the record that the flats were cancelled, it is also true that the respondent’s/ complainant’s name was kept in the waiting list and if a large number of flats were available why allotment to the wait listed registrants was not made. Whether the wait list has been exhausted by the appellant/OP, to this also no answer is forth coming from the pleading of the appellant/ OP. The District Forum had rightly held that the respondent/complainant is a bonafide registrant and his/her name was in the wait list but no action is being taken by the appellant/OP to clear the wait list and no reason for the same has been explained by the appellant/OP.”

 

Hence the present Revision Petitions.

5.      Vide order dated 10.02.2014, the DDA was directed to file an affidavit stating that as to how many allotments, made under the Scheme, were cancelled and offered to the applicants wait-listed in terms of Clause 8 of the said Scheme.  In furtherance thereof, an affidavit has been filed by the Director (Housing), DDA, wherein it is stated that as per the said Clause, waiting list was done to ensure that the surrendered flats, if any, were allotted to some registrants rather than keeping them vacant and the waiting list was to be valid for six months only;  the said provision did not create any right of wait-listed registrants if they had failed to get a flat from the surrendered ones within six months and since the placement of the Respondents in the wait-list was at Sl. No. 54 (Priority No. 64) and Sl. No. 184 (Priority No. 283) respectively, they would not have got any one of the 48 surrendered flats.  It is, however, admitted that the DDA did not conduct any draw of lots for the said 48 surrendered flats. 

6.      We have heard Mrs. Girija Wadhwa, Ld. Counsel for the DDA.  The sole ground on which the Ld. Counsel laid emphasis to contend that the impugned direction is erroneous is that the DDA had reserved to itself the discretion to alter any terms and conditions or any clause of the Scheme, as and when considered necessary and, therefore, the DDA was fully justified in deciding not to hold any draw in respect of the surrendered flats, in terms of the afore-extracted Cause 8.

7.      We are unable to persuade ourselves to agree with the Ld. Counsel. It may be true that Clause 26 confers on the DDA the power to alter any terms and conditions/clause of the Scheme at its discretion as and when considered necessary but in the Written Statement filed on behalf of the DDA, it was not the case of the DDA that a decision had in fact been taken not to conduct draw of lots, in terms of the said Clause.  It is, now, too late in the day for the DDA to raise such a plea. In any case no such decision has been placed before us. Clause 8 clearly provided for preparation of a waiting list of 25% of the flats offered for allotment.  The list was to be valid for six months but every month the DDA was obliged to hold draw of lots for allotment of surrendered flats to the wait listed registrants.  Admittedly, the DDA did not hold such draws.  In the absence of any decision not to conduct such draws, it was not open to the DDA to defend its inaction on the premises that being way down in the wait list, the Respondents would not have got the flats even if such draws were hold.  Further, surrender of allotments by the new allottees could not be ruled out.  Be that as it may, as already noted, no resolution/decision in terms of clause 26 of the brochure issued was placed before us.

8.      For all these reasons, we do not find any illegality or material irregularity in the impugned order, warranting interference in our revisional jurisdiction.  Consequently, both the Revision Petitions are dismissed.                 

 

 
......................J
D.K. JAIN
PRESIDENT
......................J
V.K. JAIN
MEMBER
......................
VINEETA RAI
MEMBER

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