RAJINDER KUMAR VOHRA vs DELHI DEVELOPMENT AUTHORITY

THE applicant/complainant applied for an allotment of plot under Registration Scheme on New Pattern 1979 under the Middle Income Group and paid a sum of Rs. 4,500/- as required. His name was registered at Sl. No. 4057 vide certificate of registration dated 15.3.1980. Subsequently vide demand-cum-allotment letter dated 28.5.1997/31.5.1997, the applicant/complainant was informed of the allotment of a flat by draw of lots held on 26.3.1997. THE applicant deposited Rs. 20,000/- vide Challan No. 76743 dated 16.6.1997 with SBI Bank, Vikas Sadan Branch, New Delhi. THE balance amount of Rs. 6,13,352.81 was paid vide Challan No. 76768 dated 30.7.1997. This was within stipulated time. THE flat allotted was 26A, Ground Floor Phase-II, Jhilmil Colony. When the applicant/complainant approached the respondent authority for the issue of the possession letter of the flat he was informed that the aforesaid flat had been allotted to one Shri Ram Prasad and he was allotted an alternative flat No. 21A, Pocket B, Phase-II, Jhilmil Colony. THE complainant was also asked to submit fresh documents and pay the additional demand raised in respect of the latter flat. He was also informed that the amount already paid would be adjusted against the demand raised for Flat No. 21A, Pocket B, Phase-II, Jhilmil Colony allotted subsequently. Conveyance deed papers of Flat No. 21A, Pocket B, Phase-II, Jhilmil Colony were despatched to him. THE applicant/complainant took an objection to the allotment of another flat and insisted on the possession and registration of the flat already allotted on 28.5.1997. He however requested for an allotment of another flat in east zone except Jhilmil Colony which was declined by the respondent on the ground that the change of location was not permissible. THE respondent authority on its part insisted on the allotment of another flat on the ground floor in Jhilmil Colony explaining that as the possession of flat No. 26A, Jhilmil Colony had already been given to Shri Prasad, the same could not be allotted to the applicant/complainant. Failing on his representations made to various Government Departments as well to the higher authorities, the complainant filed a complaint before the Commission contending that on account of unfair trade practices adopted and indulged in by the respondent authority, the applicant/complainant is entitled to refund of the amount paid alongwith interest @ 24% from the date of payment. Suitable damages were also claimed for the harassment caused to the applicant/complainant. In total the claim was at Rs. 36,88,047.36 including compensation for harassment/mental agony and interest on the amount already paid.

ON receipt of the complaint from the complainant a Notice of Enquiry dated 19.2.1991 under Sections 36A, 36B(a) and Section 36D was issued to the respondent. In its written submissions the respondent authority while admitting the facts as brought out in the complaint explained that Shri Ram Prasad was allotted a flat bearing No. 25-D, 3rd Floor, Phase-II, Vivek Vihar through a draw of lots held on 23.9.1996. ON his request to the Lt. Governor for the change of the 3rd floor allotment to a flat situated on a ground floor, he was mistakenly allotted a flat No. 26A, Phase-II, Vivek Vihar. The mistake occurred as the concerned official reported three flats available in Vivek Vihar, Phase-II, Jhilmil as vacant. The available flats were 26A, 21A, 20A, Vivek Vihar, Phase-II, Jhilmil Colony. This was on 13.1.1997. Flat No. 26A, Phase-II, Vivek Vihar was mistakenly included in the other flats for which draw was held and came to be allotted to the applicant/complainant. It is the contention of the respondent authority that the applicant/complainant was given an open offer for the allotment of other flats in the same colony at the same rate which was not accepted by the applicant/complainant. As the flat allotted to Shri Ram Prasad could not be cancelled the complaint of the applicant/complainant is contended to be devoid of any merit and needs to be rejected. As the respondent did not represent the proceedings despite sufficient opportunities allowed, the respondent was set ex parte.

The applicant/complainant placed reliance on documents for its assertions. The documents placed on record were perused.

AS the third part''y right was involved in the present case, the records of the respondent authority pertaining to the applicant/complainant as well as to Shri Ram Prasad were requisitioned and gone through. Records of both the parties reveal that in a general draw held on 29.3.1996 one Shri Ram Prasad was allotted a flat No. 25D, Vivek Vihar, Phase-II and a demand-cum-allotment letter was issued to him on 12.6.1996/19.6.1996. The payment for the flat 25D, Vivek Vihar, Phase-II was not made. Shri Ram Prasad moved an application for allotment of a flat on the ground floor on medical grounds. On recommendation of the Lt. Governor of Delhi, the respondent authority found that three flats on the ground floor namely, 26A, 21A and 20A at Vivek Vihar, Phase-II were available. Accordingly, in a mini draw held on 2.4.1997 Shri Ram Prasad was allotted an alternative flat i.e. 26A, Vivek Vihar, Phase-II. The payment of Rs. 5,88,731.50 was made on 11.9.1997. The applicant/complainant who was successful in a general draw held on 26.3.1997 came to be allotted the same flat i.e. 26A, Vivek Vihar, Phase-II on 26/31.5.1997. This was on cash down basis. The payment for the aforesaid flat amounting to Rs. 6,13,352.81 was made on 30.7.1997 vide Challan No. 76768. The applicant/complainant submitted the documents required for handing over the possession of the house vide letter dated 30.7.1997 (Ex. 5) to the Deputy Director (Housing), Vikas Sadan, New Delhi. The information regarding allotment of an alternative flat 21A, Phase-II, Pocket-B, Vivek Vihar, ground floor was passed on to the applicant/complainant vide letter dated 2.6.1998. This was stated to be on account of Mini Draw held on 16.3.1998. Following are the few important dates relevant for decision of the issue in question : R.KVohra (applicant/complainant) Ram Prasad (Third party) 1.General draw of lot 26.3.1997 29.3.1996 Flat No. 26-A, Flat No. 25D 2.Date of intimation 26/31.5.1997 11/13-6.1997 3.Date of Payment of entire amount 30.7.1997 11.9.1997 4.Mini draw held flat No. 21-A 16.3.1998 flat No. 26-A 2.4.1997 Records of the respondent authority reveal that the mistake for double allotment was discovered in 18.8.1997 by which date the applicant/complainant had already paid the amount. Shri Ram Prasad however made the payment subsequently. With little care on the part of the respondent authority, the matter could have been amicably resolved. In the alternative request of the applicant/complainant for an allotment of flat in the east zone other than Jhilmil Colony could have been acceded to as by that time the right of third party (Shri Ram Prasad) already stood created in the flat in question. While Shri Ram Prasad was allotted the house on the ground floor, the applicant/complainant was deprived of the house in question namely, 26A in Jhilmil Colony already allotted to him for which payment was made in time. Accordingly, for an unfair treatment, the applicant/complainant needs to be suitably compensated.

THE word compensation has not been defined under the provisions of the Act. However, in case of Lucknow Development Authority v. M.K. Gupta reported as III (1993) CPJ 7 (SC)=(1993) CTJ 929 (SC), it has been held by THEir Lordships of Supreme Court that "according to dictionary it means, ''compensating or being compensated; thing given as recompense''. In legal sense it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss. THErefore, when the Commission has been vested with the jurisdiction to award value of goods or services and compensation it has to be construed widely enabling the Commission to determine compensation for any loss or damage suffered by a consumer which in law is otherwise included in wide meaning of compensation. THE provision in our opinion enables a consumer to claim and empower the Commission to redress any injustice done to him. Any other construction would defeat the very purpose of the Act. THE Commission or the Forum in the Act is thus entitled to award not only value of the goods or services but also to compensate a consumer for injustice suffered by him". Before deciding the quantum of compensation, it is relevant to mention that the applicant/complainant has not impleaded the third party (Ram Prasad) in its complaint. It has also not claimed any compensation in its complaint. It is only in his written submission filed as late as 14.1.2002 that the applicant/complainant claimed compensation to the extent of Rs. 36,88,047/- including interest @ 24% as well as damages of Rs. 5,00,000/- alongwith breach of trust at Rs. 12,95,318/- with other expenses. Considering that the applicant/complainant was not aided by any Counsel, the complaint filed was treated as a composite application both under Sections 36A and 12B of the Monopolies and Restrictive Trade Practices Act, 1969 (for brief the Act). Keeping in view the entirety of the facts and the circumstances of the case, we would hold that the applicant/complainant is entitled to refund of the amount as paid along with the rate of interest at 12% as has been consistently held by the Hon''ble Supreme Court in its various judgments including Ghaziabad Development Authority v. Union of India, II (2000) CPJ 1 (SC)=IV (2000) SLT 654=2000 CTJ 205 (SC) MRTPC, keeping in view the respondent being a public undertaking.

AS regards compensation in respect of mental agony the same is not allowable in view of the decision of the Hon''ble Supreme Court of India in the case of Ghaziabad Development Authority v. Union of India & Anr. Even otherwise, it has not been shown that the sufference of the applicant/complainant is due to mala fide or capricious act of the official responsible for mix-up in the allotment. In fact in such a case Their Lordships of Supreme Court in the Lucknow Development Authority v. M.K. Gupta (supra), have held that the compensation awarded is to be recovered from the official responsible for the act of negligence. Relevant in this context is the fact that when the mistake was detected by the respondent authority, the applicant/complainant was given a choice of other houses in the same locality which request was declined by the applicant/complainant.

WE, however, award a sum of Rs. 15,000/- towards cost as claimed by the applicant/complainant on travel and miscellaneous expenses incurred in pursuing the litigation. In the end respondent authority is directed to pay deposited amount along with rate of interest at 12% from the date of payment till the date of refund. It is also directed to pay Rs. 15,000/- towards cost of litigation as awarded. The respondent is further directed to file an affidavit of compliance within six weeks from the date of receipt of the order. Let a copy of this order be sent to both the parties. Complaint disposed of.