Anita Kumari vs DELHI DEVELOPMENT AUTHORITY

THE complainant has approached this Commission with a grievance that, though the respondent had assured in the brochure with respect to its scheme in the name and style of "Expandable Housing Scheme, 1995" (the Scheme for convenience) a plot of land admeasuring 63 sq. mtrs. with a house built thereon admeasuring 35 sq. mtrs. against its booking, the respondent has in fact given a house admeasuring about 28 sq. mtrs. on the plot admeasuring the same area. She has, therefore, prayed for allotment of a plot admeasuring 63sq. mtrs. with a constructed area of 35 sq. mtrs. or in the alternative refund of the deposit of Rs. 10,000/ together with interest and costs of litigation.

THE facts giving rise to this complaint may be summarised in a nutshell. THE respondent announced the scheme some time in early 1995. It was a scheme for nearly 8000 built up houses in different localities specified in table 1 of Annexure 1 to the brochure. A copy of the brochure is at serial No. 2 in the list of documents and the parties have relied on this piece of documentary evidence for the purpose of this complaint. THE scheme was open from 24th January 1995 to 2nd March 1995. It appears that the complainant booked one house in the afore said scheme on payment of the required deposit. He was allotted a house in Rohini, Sector 22, Pocket 16, Block PH III. It is the case of the complainant that on inspection of the site it came to her knowledge that the house allotted to her actually admeasured 28 sq. mtrs. as against the assured constructed area of 35 sq. mtrs. and the ultimate land area of 63 sq. mtrs. mentioned in the brochure related to the scheme floated by the respondent. She, therefore, moved this Com mission with her complaint charging the respondent with adoption of both restrictive trade practices and unfair trade practices qua the scheme in question. She has also prayed for allotment of a plot admeasuring 63 sq. mtrs. with a constructed house admeasuring 35 sq. mtrs. or in the alternative the refund of the deposited amount of Rs. 10,000/ with interest and the costs of the litigation. The respondent has filed its reply to the complaint and resisted the case on several grounds. It has inter alia contended that no assurance was given in the brochure about allotment of a plot admeasuring 63 sq. mtrs. It has also contended that the constructed area would include an area of mumty on the first floor admeasuring 7 sq. mtrs. It has thus denied adoption of or indulgence in any kind of restrictive and/or unfair trade practices on its part.

On the aforesaid pleadings of the parties, the following issues have been framed by the order passed on 15th October 1996: 1. Whether the respondent has been or is indulging in the restrictive and unfair trade practices mentioned in the NOE? 2. If answer to issue No. 1 is in the affirmative, whether the alleged restrictive trade practices are not prejudicial to public interest and the unfair trade practices are prejudicial to public interest, to any consumer or consumers generally? 3. Relief. Our answers to the above issues are as under: 1. In the negative. 2. Not necessary to decide. 3. As per the final order.

IN support of their respective cases, both the parties have filed their affidavits. On behalf of the complainant, she has herself sworn her affidavit by way of evidence. She has produced certain documentary evidence. The list of documents is annexed to the application under Section 12A (1) of the Monopolies and Restrictive Trade Practices Act, 1969 (the Act for brief). Though there is no formal order regarding ad mission/denial of the documents accompanying the application under Section 12A(1) of the Act, both the sides admit the contents of the brochure for the purpose of this complaint. Issue No. 1: There is no dispute that the scheme floated by the respondent was in terms of the brochure at serial No. 2 in the list of documents accompanying the application under Section 12A(1) of the Act. The brochure contains Annexure 1, Rohini Sector 22, Pocket 16 and Block PH III is at serial No. 14 in table 1 of Annexure 1 to the brochure. In Column No. 7 thereof is mentioned the area constructed by the respondent to be 35 sq. mtrs. and in Column No. 8 the ultimate area is mentioned to be 63 sq. mtrs. Nowhere in table 1 is mentioned any plot or land area to be allotted separately to allottees of houses under the scheme. In fact, it clearly transpires from the brochure that it was in the nature of flats and it is mentioned in Column No. 6 thereof the number of flats available in each sector, pocket and block against each serial number. Two footnotes appear below table 1 in Annexure 1 to the brochure. In the first footnote it is mentioned: "In some cases, the area given in Column 7 of this table includes area of mumty and roof projection".

IT may be mentioned at this stage that the scheme envisaged expandable houses. The typical plan of such a house has been given in the brochure. IT clearly shows what is the area constructed by the respondent herein and what is the area to be constructed by the allottee. The area constructed by the respondent is on the left hand side. IT clearly shows existence of mumty on the first floor. Reading the typical plan of such an expandable house in the light of the first footnote below table 1 in Annexure 1 to the brochure, it would abundantly become clear that the area of 35 sq. mtrs. appearing in Column 7 thereof would include the area covered by mumty on the first floor. The brochure also contains terms and conditions for allotment of expand able houses under the scheme. In Clause 3 thereof captioned as "Type of Houses", it is clearly mentioned what is the constructed area and what is to be constructed by the allottee after allotment. IT is also mentioned therein that details are given at Annexure 1 to the brochure. The list of documents also contains the site plan of such houses. It is clearly mentioned therein that the plot area would be a little more than 28 sq. mtrs. It also clearly mentions Phase 1 constructed by the respondent. It shows the ground floor area to be 28.05 sq. mtrs. and the area of mumty on the first floor to be 7 sq. mtrs. The area together with the mumty on the first floor is shown to be 35.05 sq. mtrs. It also shows Phase II to be constructed by the allottee. The area to be constructed on the first floor would be 21.05sq.mtrs. and the area of the mumty on the second floor would be 7 sq. mtrs. The total area to be constructed by the allottee would be around 28 sq. mtrs. That would make the total floor space to be around 63 sq. mtrs. When it is clearly mentioned in the brochure what is to be given to the allottee and what is to be constructed by the allottee after allotment, there is found no deviation from the brochure plan qua the actual allotment made to the complainant. We do not find that the house allotted to the complainant is in any way less in area or materially different from what is represented to her by means of the brochure. If she has misread the brochure to mean that she would be allotted a plot area of 63 sq. mtrs. with a constructed area of 35 sq. mtrs., she has to thank herself; she cannot blame the respondent for her misreading of the brochure.

IN view of our aforesaid discussion we are of the opinion that the respondent is not found to have adopted or indulged in any kind of restrictive and/or unfair trade practices qua its housing scheme under reference. We accordingly answer issue No. 1 in the negative and against the complainant. Issue No. 2: IN view of our finding of issue No. 1 in the negative and against the complain ant, it is not necessary to decide this issue. We answer it accordingly. Issue No. 3: IN view of our answers to issue Nos. 1 and 2 it is difficult to come to the conclusion that the complainant can claim any relief against the respondent on the basis of adoption of or indulgence in restrictive and/or unfair trade practices on its part. Learned Advocate Mr. Dalmia for the complainant has submitted that the complainant has prayed for refund of the deposited amount. It is not in dispute that she had made no such application to the respondent in accordance with terms and conditions contained in the brochure. Learned Advocate Mr. Dalmia for the complain ant has urged that Clause 14 of terms and conditions containing the brochure are one sided and that by itself would amount to adoption of restrictive and/or unfair trade practices on the part of the respondent. There is no such case pleaded by the complainant in her complaint. The complainant has also not moved any separate Compensation Application under Section 12B of the Act. If advised, she may separately make such application. IN this complaint, it would not be possible for us to grant the relief of refund of the deposited amount. IN the result, the complaint fails. The Notice of Enquiry is discharged. There shall be no order as to costs on the facts and in the circumstances of the case. The interim order stands vacated. Enquiry discharged.