DELHI DEVELOPMENT AUTHORITY vs A.V. RAGHAVAN

THE present appeal has been filed by the appellant assailing the order of the District Forum-II dated 19.3.1997, in Complaint Case No. 3659/94 entitled Shri A. Vira Raghavan v. THE Vice Chairman, D.D.A.

THE brief facts, leading to the filing of the present appeal are that the respondent, Sh. A. Vira Raghavan, had filed a complaint before the District Forum under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ''the Act''), averring therein that the respondent/complainant had been allotted an MIG flat, in the year 1985 in Pocket-IV, Mayur Vihar, Delhi by the appellant. THE appellant/D.D.A. introduced a scheme for converting leasehold flats/built-up plots into freehold on payment of conversion charges. THE respondent/complainant applied for conversion of his flat from leasehold to freehold under the said scheme vide application dated 29.4.1993 alongwith relevant documents. THE appellant vide its letters dated 13.9.1993 and 10.8.1994 demanded certain amounts on account of ground rent for the years 1993-1994 and 1994-1995 as well as processing fee and service charges, which the respondent duly paid. It was the case of the respondent/complainant that despite his having fulfilled all formalities and having made all payments as per the requirement of appellant/D.D.A. the latter failed to convert his flat from leasehold to freehold within 90 days in terms of the Brochure of the Scheme. THE appellant, therefore, filed a complaint before the District Forum praying for directions to the appellant/DDA to convert his flat from leasehold to freehold and to refund Rs. 1,041.25 P. received by appellant in excess and against the terms of the Brochure, as well as grant compensation of Rs. 20,000/- to the respondent for mental agony, torture and sufferings undergone by him. During the pendency of proceeding before the District Forum the appellant/DDA sent the conversion deed and the conversion was finally effected on 31.12.1995.

In its written version/statement filed before the District Forum the appellant alleged laches on the part of the respondent himself, on account of the fact that the respondent had not deposited the process fee, ground rent for the years 1993-1994 and 1994-1995 and service charges alongwith his application. The appellant/D.D.A. also denied the other averments made by the respondent/complainant in his complaint.

THE District Forum allowed the complaint of the respondent with directions to appellant/D.D.A. to return to the complainant ground rent collected by it for the year 1994-1995 with 18% interest on the said amount and to pay Rs. 5,000/- as compensation for mental agony and suffering undergone by the respondent alongwith Rs. 500/- as cost of litigation. Aggrieved by the said order the appellant/D.D.A. has filed the present appeal before us.

WE have carefully perused the documents/material placed on record and have also heard the arguments addressed on behalf of both the parties. Before we advert to the main controversy in dispute, we will consider the preliminary objection raised by the respondent, that the present appeal is not maintainable, being filed beyond the statutory period of 30 days, as prescribed under Section 15 of the Act. It has been pointed out by the Counsel for the respondent that the date of receipt of the impugned order has been falsely mentioned as 30.4.1997 whereas the notings on the certified copy of the order show that the same had been received on 11.4.1997 and, therefore, the reasons assigned by the appellant in his application for condonation of delay are false. The objections raised by the Counsel for the respondent seem to be valid, and probably in another set of circumstances we would have upheld the same. But in the present appeal filed by the appellant the controversy relates to the exercise of jurisdiction by the District Forum, where it had none. Since the very basis of adjudication on the subject-matter in dispute is under challenge, we will proceed to treat the present appeal as a petition under Section 17(b) of the Act which provision reads as under : "Section 17. Jurisdiction of the State Commission-Subject to the other provisions of this Act, the State Commission shall have jurisdiction,- (a) xxx xxx xxx (b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State, where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity."

Since, the jurisdiction of a District Forum to entertain a particular subject-matter or complaint, can be assailed under the above provision, and no limitation for filing a petition is prescribed therein, the objection regarding delay in filing the present appeal and consideration of application for condonation of delay in filing the appeal becomes irrelevant.

COMING to the crux of the present matter, as to whether an allottee, seeking conversion of leasehold rights to freehold under the Scheme of appellant/DDA in this regard could be termed as ''consumer'' availing of ''services'' under the Act, it would be pertinent to advert to the ruling cited by the appellant/DDA in the case of D.D.A. v. Shri S.S. Puri, I (1997) CPJ 86 (NC), wherein the National Commission has set the above controversy at rest. The National Commission has held : "The complainant is an allottee of the MIG flat on lease-hold basis. He applied for conversion as lease-hold rights into free-hold rights in respect of the said flat. The complainant paid the conversion charges from lease-hold to free-hold. The deposit/payment of the conversion charges is not for hiring of the services of the D.D.A. There is no hiring of service for consideration within the meaning and scope of the Consumer Protection Act."

(Emphasis supplied) The Counsel for the respondent has sought to differentiate the said decision of National Commission from the facts of the present case on the ground, that the respondent had paid service charges and processing fee to the appellant/DDA besides the conversion charges which fact was not before the National Commission for consideration and, therefore, the said decision would not be applicable to the facts and circumstances of the present case. However, in our opinion the said contention of the respondent is devoid of merit mainly because what has been laid down in abovementioned decision, inter alia is that applying for conversion of leasehold rights into freehold by an allottee is not hiring of ''services'' under the Act, and therefore, in view of the express proposition of law as laid down by the National Commission, in the above-mentioned decision the amount deposited/paid whether as conversion charges, or as service charges or process fee or ground rent would not be of any consequence as it does not tantamount to ''consideration'' for ''services '' under the Act.

THEREFORE, in view of the law as laid down by the National Commission, we allow the present petition/appeal of the appellant/D.D.A. and consequently set aside the impugned order of the District Forum. However, the respondent would be at liberty to approach the appropriate Forum, for seeking relief for redressal of his grievances raised by him, before the District Forum, in his complaint, if so advised. In the circumstances, however there is no order as to costs. The present appeal stands disposed of in above terms. Appeal allowed.