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Judgment
R.K. Agrawal, J., President
The present Appeal has been filed against the Order dated 13.06.2016 passed by the Delhi State Consumer Disputes Redressal Commission (hereinafter to be referred to as "State Commission"), whereby the Complaint filed by the Complainant was allowed and the Appellant was directed to allot, within two months, a flat of category-III preferably, if category III is not available, then category II flat in Dwarka or Rohini or North Delhi. Allotment was directed to be made at the rate on which last flat in the said category and said area was allotted by the Opposite Party. However, if the no flat under the SFS Scheme could be allotted to the Complainant, Appellant was directed to pay compensation to the tune of 40,00,000/- (Rupees Forty Lacs Only). The said amount was ascertained on the basis of difference between the amount for which booking was done and market value of the same at the date of filing of the Consumer Complaint.
Brief facts of the case leading upto the present Appeal are that Appellant had floated nine self finance schemes (hereinafter to be referred as "SFS Scheme") for allotment of flats at various locations in Delhi. The Second SFS Scheme, 1978 was floated in December, 1978. The Complainant contended that he had deposited the requisite registration amount of 10,000/- (Rupees Ten Thousand Only) vide receipt no 3862 dated 22.12.1978. Pertinently, as per Clause 13 of the second SFS Scheme, "those once registered will continue to remain registered, if they have not opted for any scheme or unless registration deposit paid by them is withdrawn."
Subsequently, Appellant, in June, 1987, issued brochure giving tentative cost of flats under First SFS Scheme to Sixth SFS Scheme for various floors ranging from 1,70,000/- till 3,18,000/-. The maximum tentative price of the flat was declared to be 3,18,000/- for second floor at Kalkaji, New Delhi, which was inclusive of terrace floor and car garage.
It is the case of the Complainant that he kept on enquiring by personal visits or via telephone from the Appellant about the status of allotment of flats under the said scheme, but his efforts were gone to no avail. Via letters dated 30.12.1988 and 20.01.1989, Complainant sought information regarding the allotment of flats, however no reply was given by the Appellant.
It was only on 15.01.1990, Appellant gave advertisement announcing release of 600 flats under the SFS scheme in Times of India. However, by this time Appellant had floated Third, Fourth and Fifth SFS Scheme. The registrants of Third, Fourth and Fifth Scheme were allowed to apply whereas the registrants of First and Second SFS Scheme were denied such opportunity. Complainant alleges that such act of the Appellant was arbitrary and it was without any sum and substance to overlook the registrants of First and Second SFS Scheme.
On 10.06.1990, the Appellant further published advertisement for release of 3000 SFS flats. As per the contents of the advertisement, registrants of Third till Sixth SFS Scheme were eligible without disclosing the reason behind not allowing registrants of First and Second SFS Scheme.
Aggrieved by the actions of the Appellant, Complainant made representations before the Appellant on 20.06.1990 and on 16.07.1990seeking opportunity for allotment, however, again no reply was afforded to the Complainant.
Again on 23.10.1990, Appellant advertised for allotment of 3000 flats and Complainant again filed objection dated 25.10.1990, assailing the decision of the Appellant denying permission to registrants of Second SFS Scheme.
Subsequently, another advertisement was floated in Times of India on 15.02.1991 for release of 3000 flats, wherein registrants of Fifth and Sixth were eligible to apply. Again representations were made to the Appellant by the Complainant on 06.03.1991 and 20.03.1999, but no reply was sent by the Appellant.
Another advertisement was floated in Hindustan Times on 18.12.1999 for holding draw of allotment of SFS Flats on 24.12.1999. Again Complainant made representation before the Appellant on 20.12.199 raising objections for not including his name in the list of allotment of flats in Sarita Vihar and Shalimar Bagh, which was to be held on 24.12.1999, however, letters dated 16.02.2004 and 21.11.2005 were still not addressed by the Appellant.
Ninth SFS Scheme was floated by the Appellant under the name and the style of "DDA Housing Scheme 2006", wherein, the cost of the flats was substantially increased to a range of 32,00,000/- (Rupees Thirty Two Lacs Only) till 55,80,000/- (Rupees Fifty Five Lacs and Eighty Thousand Only) for various locations for a three bedroom flat and 12,70,000/-(Rupees Twelve Lacs and Seventy Thousand Only) to 34,08,000/- (Rupees Thirty Four Lacs and Eight Thousand Only). As an eternal tale of letters, Complainant again filed representation before the Appellant on 18.01.2007, and again no reply was made by the Appellant.
Complainant filed application under the Right to Information Act, 2005 on 07.06.2007 seeking reasons as to why no reply has been afforded to the Complainant and seeking status of his registration. In reply to the RTI application in July, 2007, it was simply stated that all the schemes have been closed during 2002. Complainant aggrieved by such arbitrary decisions of the Appellant, again filed representation before the Vice Chairman of the Appellant, and, again no reply was warranted to the Complainant.
Left with no other legal recourse, Complainant filed Complaint before the Delhi State Consumer Disputes Redressal Commission being registered as Consumer Complaint no 42 of 2008, praying as under:
"a. the Opposite Party-DDA be directed to discontinue unfair trade practices/restrictive trade practices and not to repeat the same;
b. the Opposite Party-DDA be directed to allot a flat in the locality of his choice as per commitment of the Scheme at the price as contemplated in the Scheme of the Opposite Party-DDA in 1988 as the Complainant had been requesting for allotment of a flat. In the alternative the Opposite Party-DDA be directed to pay compensation of 40 lakhs for the loss caused to him.
c. The Opposite Party-DDA may be further directed to pay damages/compensation of 20 lacs for deficiency of service, manipulation of conditions of delivery of service, deprivation, mental torture and harassment caused to the Complainant alongwith cost of litigation;
d. The Opposite Party-DDA be directed to pay punitive damages for the amount, as may be deemed fit by the Hon'ble Commission, in the facts and circumstances of the case."
The Opposite Party/Appellant appeared before the State Commission submitted their written version raising the preliminary issues that Complaint is devoid of any merit and does not disclose any deficiency in service or a consumer dispute; that the State Commission does not have the jurisdiction to deal with the matter since the issue at hand involved substantiating evidence, both oral and documentary, which could not be done before the State Commission; that as per records, the Complainant did not apply for the allotment and did not submit his preference of locality of allotment and thus no allotment was made to him; that the Complaint is barred by limitation, as such schemes were announced in the year 1980 and 1981 and thus the Consumer Complaint, as filed by the Complainant, was only an afterthought; that the Opposite Party is vested with the right to withdraw the scheme not only during the period of application for registration is open, but even after the allotments are made; that ample opportunities were granted to the Complainant but he did not submit his preference, thus no allotment could be made to Complainant; and further denied the contentions as raised in the Complaint.
After hearing both the parties and upon perusal of material on record, the State Commission whilst addressing the first objection of limitation, held that in case of non-allotment or non-delivery of possession, the cause of action is continuous and that the Complainant has been regularly taking up the matter with the Opposite Party, it is not the case where he slept over his case. The Complainant never received any reply to any of his representations and it was only in 2007, via reply to RTI, when the Complainant was apprised of the fact that the scheme has been closed, further reliance has been placed on decision as rendered by the Hon'ble Supreme Court in Meerut Development Authority v. M.K. Gupta (Vol IV (2012) CPJ 12) wherein it was held that the buyer has recurring cause of action for non-delivery of possession.
With respect to the factual position that Complainant was not given opportunity to apply for the allotment, the State Commission held that the Opposite Party did not warrant any opportunity to the Complainant to apply since the registrants of Second SFS scheme were estopped from applying and no advertisement was filed by the Opposite Party evidencing opportunity given to registrants of Second SFS scheme allowing them to apply to allotment, thus Opposite Party was bound to take care of registrants of earlier schemes. Further contention of the Opposite Party that the said Scheme was closed in 2002 was rejected since no document and/or decision of the competent authority was brought forth substantiating the same. Neither any proof of service was filed evidencing communication of closure decision to the registrants, except public notices published on 01.04.2002 in Hindustan Times and 31.03.2002 published in Nav Bharat Times. The State Commission has rejected the evidentiary value of such notices since they don't relate to the Second SFS scheme and also citizens cannot be expected to follow newspapers on every single day for over 25 years to keep track of public notice which may or may not be issued by DDA. Further reliance was placed on similarly placed matters beingWP(C) No. 119/2007 titled as Abhay Prakash Sinha v. DDA decided on 07.11.2007, WP(C) No. 11654/2006 titled as Subhash Chandra Sethi v. DDA decided on 20.03.2007, WP(C) No. 10570/2006 titled as Tejinder Kaur v. DDA decided on 19.07.2007, WP(C) No. 20250/2005 titled as Jay Prakash v. DDA decided on 21.07.2006.
Whilst dealing with the third issue, whether Complainant is a consumer or not, the State Commission has held in the affirmative, holding that the process of rendering service commences when HUDA invites application for allotment and in response to that offer, person apply for the same with necessary deposit. Reference was made on decision of National Commission in Huda Karnal v. Mahabir Singh &Anr. In Revision Petition No. 154/1993 decided on 11.05.1994.
With respect to the last issue, i.e., the issue of allotment of flat, the State Commission directed Opposite Party to allot a flat of category III preferably, and if category III was not available then category II flat in Dwarka or Rohini or North Delhi along with compensation of 5,00,000/- and in the alternative Opposite Party was directed to pay compensation of 40,00,000/- (Rupees Forty Lacs Only) to the Complainant for the loss caused.
Aggrieved by this order, the Appellant has filed the present Appeal before this Commission.
Mr. Milind Jain, learned Counsel appearing for the Appellant has vehemently argued that the Complainant is not a consumer and that there was no Consumer-Service provider relation between the Appellant and the Respondent for the purpose of providing the allotment of a flat; that the Complainant was a mere registrant, who had registered under the Scheme and there was no definite assurance given to the Complainant for a definite allocation of flat; that the SFS scheme provided that the same could be closed or discontinued by the appellant, therefore, it is bad in law to rely on one clause of the scheme and turn a blind side on the other norms of the scheme; that the Consumer Complaint was barred by limitation, since the grievance had first arisen in February, 1990, when the Complainant became aware that the First and Second registrants could not apply for the allotment, reliance has been placed on Dr. V.N. Shrikhande Vs. Mrs. Anita Sena Fernandes, wherein the Hon'ble Supreme Court has held that the period of limitation begins from the date when the cause of action first accrues; that mere filing of representation and too after a long period of time cannot be a ground for continuation of cause of action in perpetuity, reliance has been placed on decision as rendered by Hon'ble Supreme Court in Kandimalla Raghavaiah and Co Vs. National Insurance Co. and Anr. wherein it was held that written communications cannot extend the period of limitation; that the claim amount of 40,00,000/- is not substantiated by any documentary proof, reliance has been placed on P.Y. Rajendra Kumar Vs. Vyalikaval House Building Co-Op Society Ltd, wherein this Commission has held that compensation cannot be granted without any explanation; andthat the disputes between the parties are of such nature which can be dealt by a Civil Court in order to conduct examination and cross examination of parties, reliance has been placed on Chunilal Pranjivandas & Co. and Ors. Vs. Tamil Nadu Mercantile Bank Ltd., wherein this Commission has held that disputed questions of fact should be dealt with by Civil Court; for the reasons and submissions made by the learned Counsel, it was prayed that the Impugned Order be set aside and the Appeal be allowed.
Per contra, Mr. P.D. Gupta, learned Counsel appearing on behalf of the Respondent No. 1 to 3 supported the Order passed by the State Commission as according to him the State Commission has passed a well-reasoned order which is based on a correct and rightful appreciation of evidence and material available on record and does not call for any interference.
During the course of Proceedings, vide Order dated 31.10.2018, the subject Appeal was dismissed for want of prosecution, however, counsel for Appellant preferred MA/03/2019 substantiating reasons for non-appearance, upon perusal of the same, the subject Appeal was restored vide Order dated 10.01.2019.
We have heard Mr. Vaibhav Agnihotri, learned Counsel for the Appellant, Mr. P.D. Gupta, learned Counsel for the Respondent and given a thoughtful consideration to the various pleas raised by them.
It is not in dispute that the Respondent/Complainant got registered himself under the Second Self Financing Scheme in the year 1978 by depositing registration amount of 10,000/- with the Appellant DDA in December 1978. Clause 13 of the said Scheme provides that "those once registered will continue to remain registered, if they have not opted for any scheme or unless registration deposit paid by them is withdrawn." Undisputedly, the Respondent/Complainant has neither opted for any other scheme nor he has withdrawn the registration deposit and the same is still lying deposited with the Appellant DDA till date meaning thereby that the Respondent/Complainant still continues to be registered with the Appellant DDA, which proves that cause of action was in continuance till the date of filing of the Complaint. The State Commission has rightly dealt with this issue in its Order by relying on the Judgment passed by the Hon'ble Supreme Court in "Meerut Development Authority vs. M.K. Gupta [Vol. IV (2012) CPJ 12]". Therefore, the contention of the Appellant DDA that the Complaint was time-barred has no force and the same is rejected.
The Appellant/DDA has failed to prove by any cogent documentary proof that despite having given many opportunities after 1987, the Respondent/Complainant did not apply for allotment of flat; debarring the registrants of 2 nd SFS from applying for allotment of flat after 1990 and closing the scheme in the year 2002 or 2005 without refunding the registration amount of the Registrants of 2 nd SFS, is a clear case of Deficiency in Service on the part of the Appellant / DDA. The State Commission has also rightly dealt with the issue in detail in the impugned Order. However, we find force in the submission of the learned Counsel for the Appellant DDA that due to cost of land and construction material, the cost of the flats has been increased, therefore, the direction of the State Commission to allot a Flat at the rate on which last flat in the said category and said area was allotted by the OP, or in the alternative to pay a huge of compensation of 40,00,000/- is erroneous.
Keeping in view the peculiar facts and circumstance of the case, it will be in the interest of justice, if the Respondent/Complainant is allotted the flat at the rate prevalent as on the date of the Order passed by the State Commission or in alternative, a lumpsum compensation of 10,00,000/- (Rupees Ten Lakhs only) is awarded to the Respondent/Complainant.
Accordingly, the Appeal is partly allowed. The impugned Order passed by the State Commission is modified to the extent that the Appellant DDA is directed to allot a flat of category - III preferably, if category - III is not available, category-II flat in Dwarka or Rohini or North Delhi at the rates which were prevalent as on 13.06.2016, i.e., the date of the Order passed by the State Commission or in alternative, the Appellant DDA shall pay a lumpsum compensation of 10,00,000/- (Rupees Ten Lakhs only) to the Respondents/Complainants within a period of four weeks from today.
The First Appeal stands disposed off in above terms. However, keeping in view the facts and circumstances of the case, there shall be no order as to costs.