DDA vs GYANSHYAM DASS

This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986, against the impugned order dated 07.08.2012, passed by the Delhi State Consumer Disputes Redressal Commission, (hereinafter referred to as "the State Commission") in Appeal No. 651/2009, Delhi Development Authority & Anr. vs. Ghanshyam Dass, vide which, while dismissing the appeal, the order passed by the District Consumer Disputes Redressal Forum, on 16.06.2009 in Consumer Complaint No. 636/2008, filed by the present respondent, Ghanshyam Dass, allowing the said complaint, was upheld.

Briefly stated, the facts of the case are that a commercial plot no. C-55, Keshopur Industrial Area, New Delhi was allotted to the complainant Ghanshyam Dass on 31.03.1998 by the opposite party (OP) Delhi Development Authority under its rehabilitation scheme, in lieu of an unauthorised piece of land, belonging to the Government in his possession. The complainant was required to pay an amount of Rs. 9,00,950/- to the OP DDA within 30 days i.e. by 30.04.1998. As stated in the complaint itself, the complainant did not deposit the price in time, rather deposited a part amount of Rs. 1,80,000/- on 27.07.2008, vide receipt/challan no. 0038969. The OP DDA sent a reminder to him on 11.08.1998, asking him to deposit the remaining amount alongwith interest @ 18% per annum within 15 days, failing which the allotment of plot would be cancelled. On his failure to deposit the said amount, the allotment made to him was cancelled vide letter dated 10.03.1999, and he was informed by the OP DDA. Moreover, the complainant wrote letters on 11.06.2001 to the DDA saying that he was no longer interested to purchase the plot and asked them to refund the amount of Rs. 1,80,000/-, deposited with them. This was followed by reminders by the complainant to the DDA in response to which, they replied on 25.11.2004 that his request for refund had been rejected. Later on, the complainant seems to have changed his mind and sent a letter dated 15.03.2005 to the OP for the restoration of the plot, but the same was not acceded to. The complainant then filed a request before the Lieutenant Governor of Delhi, seeking restoration of the plot. His request was, however, rejected, but the amount deposited by him was ordered to be refunded and an intimation to this effect dated 11.02.2009 was sent from the office of the Lieutenant Governor to the DDA. However, before that, the complainant filed the consumer complaint on 26.09.2008 before the District Forum, seeking restoration of his commercial plot at the old rates of allotment of 1998-1999 and also sought compensation of Rs. 2.5 lakhs for mental harassment etc. and Rs. 2,000/- as cost of litigation.

The complaint was resisted by the OP DDA by filing a written statement before the District Forum, in which they stated that the complainant was not a consumer, because the plot in question was a commercial one. Moreover, the complaint was barred by limitation as per the provisions of Section 24A of the Consumer Protection Act, 1986, according to which the complainant was required to be filed within two years of the cause of action, having accrued. The complainant had himself sought refund of the amount deposited by him. The DDA stated that the allotment of plot had been cancelled, following the failure of the complainant to deposit the money in response to the demand-cum-allotment letter.

The District Forum, after considering the averments of the parties, allowed the consumer complaint and directed the OP DDA to issue demand-cum-allotment letter in respect of the said plot for Rs. 9,00,950/- after deducting the amount of Rs. 1,80,000/- already deposited by him. The DDA was allowed to charge simple interest @ 12% per annum on the outstanding amount from the complainant. Being aggrieved against the order of the District Forum, the OP DDA challenged the same by way of an appeal before the State Commission and the said appeal having been dismissed vide impugned order, the OP DDA is before this Commission by way of the present Revision Petition.

During arguments, it was vehemently pleaded by the learned counsel for the OP DDA that the complaint deserved to be dismissed on the preliminary ground that the complainant was not a ''consumer'' as per the Consumer Protection Act, 1986, because the plot had been allotted to him for commercial purpose in lieu of unauthorised occupation made by him of some government property. The complainant was, therefore, not a hirer of any service from the DDA. Further, as per the allotment letter dated 31.03.1998, the complainant was required to deposit the amount involved within a period of 30 days. However, he failed to deposit the said amount within the period allowed, or even later without any valid reasons. On the other hand, he had himself sent letters to the DDA, saying that he was not interested in the allotment of the plot and had sought return of the money deposited by him. The allotment had, therefore, been rightly cancelled by the DDA and that also, after sending reminder to him vide letter dated 11.08.1998, asking him to pay the requisite amount. The intimation about the cancellation of the allotment was also sent to him vide letter dated 12.03.1999. The learned counsel stated that the OP DDA after consideration of the issue, had decided that the plot will not be re-allotted. His request for re-allotment had been rejected at the level of the Lieutenant Governor as well. Referring to the assertion made by the State Commission that the case of the complainant was similar to the case of another allottee, who had been allotted plot no. B-84, the learned counsel stated that the facts in that case were entirely different, because the allottee in that case had deposited the full premium of the plot on receipt of the final show-cause notice. The orders passed by the consumer fora below were, therefore, perverse in the eyes of law and should be set aside and the consumer complaint should be dismissed.

The learned counsel for the respondent stated, per contra that the complainant never received the cancellation letter from the DDA. He further contended that the consumer fora below had rightly observed that the facts of the case were similar to the facts of the case of the allottee of plot no. B-84. The order passed by the State Commission was, therefore, in accordance with law and should be upheld.

We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

From the facts and circumstances of the case, it is crystal clear that the complainant was running a tyre-retrading shop at Andheria More, New Delhi, the land under which was under his unauthorised occupation. The OP DDA decided to allot him a commercial plot C-55, Keshavpur, New Delhi measuring 117 sq. mtrs., in lieu of the property occupied by him. A demand-cum-allotment letter, dated 31.03.1998, a copy of which is on record, was issued to him. It is clear from record and also from the complaint filed by the complainant that he was required to deposit the price of the said plot i.e. Rs. 9,00,950/- within 30 days of the issue of the said letter i.e. by 30.04.1998. In addition, he was required to submit certain documents to the DDA. As per the own version of the complainant, a partial amount of Rs. 1,80,000/- only was deposited by him on 27.07.1998, instead of 30.04.1998. Thereafter, the complainant never deposited any further amount to the DDA as admitted by him. The DDA issued him a reminder dated 11.08.1998, asking him to deposit the balance amount, but the same was not deposited. The DDA then issued him a cancellation letter dated 12.03.1999. The contention of the complainant that he did not receive the letter of cancellation does not carry any weight, because it was his bound duty to deposit the necessary amount, as per the demand-cum-allotment letter sent by the DDA. Even if the cancellation letter was not received by him, it does not confer a right upon him for the revival of the allotment, in view of the fact that he failed to deposit the necessary amount in terms of the allotment letter.

Further, there are letters dated 11.06.2001 and another letter dated 19.01.2004 written by the complainant to the DDA where he categorically stated that he was not interested to purchase the said plot due to some reasons. During the course of arguments before this Commission, the complainant was present in person and he specifically admitted that these letters, the copies of which were on record, had been sent by him to the DDA. In addition, he wrote two more letters to the DDA, requesting that refund of the amount deposited by him should be given to him. In view of these facts, the complainant is clearly estopped by his own actions to demand the restoration of the plot in question.

Further, the complainant seems to have changed his mind at a later stage and demanded the restoration of the plot. His request was rightly declined by the DDA, following which, he made a representation to the Lieutenant Governor, but his request was rejected there also.

In so far as, the assertion of the State Commission regarding plot no. B-84 is concerned, the petitioner/OP DDA have explained that following the issue of show-cause notice to the allottee of B-84 in the year 2004, they deposited the entire amount alongwith interest @ 18% per annum for the period of delay. It, shall, therefore, be wrong to compare the facts of the present case with the case of allottee of plot no. B-84. The orders passed by the consumer fora below are, therefore, perverse in the eyes of law, as the same had been passed, following an erroneous appreciation of the facts and circumstances on record.

It is further observed that the allotment of the plot in question was for a commercial purpose. The said plot was allotted in lieu of a business activity of tyre-retreading, already being undertaken by the complainant. The complainant has nowhere stated that the said activity was his only means of earning livelihood by way of self-employment. We, therefore, have no alternative but to agree with the contention of the learned counsel for the DDA that the complainant does not fall within the category of ''consumer'' under Section 2(1)(d) of the Consumer Protection Act, 1986. Moreover, the DDA has allotted plot in lieu of his earlier unauthorised occupation, implying clearly that the complainant has not availed himself of any service from the DDA. On this count also, the complainant does not fall within the definition of ''consumer''.

The complaint in question is stated to have been filed on 26.09.2008, whereas the cancellation of the plot had been made in the year 1999. As already stated, the petitioner/OP DDA had sent a letter to him on 11.08.1998 for deposit of the balance amount. Even later, when the complainant himself made a request for the refund of the balance amount, the DDA informed him that his request had been rejected. The consumer complaint having been filed in the year 2008, is clearly beyond a period of two years from the date of cause of action. Under section 24A of the Consumer Protection Act, 1986, the said complaint is barred by limitation, because no grounds have been explained by the complainant for not filing the complaint within the period of limitation.

Based on the discussion above, this Revision Petition succeeds, the orders passed by the State Commission as well as the District Forum are set aside, being perverse in the eyes of law. The consumer complaint is ordered to be dismissed with no order as to costs.