DELHI DEVELOPMENT AUTHORITY vs B.P. TIWARI

BRIEF facts necessary for the disposal of this Appeal are that a residential plot No. 123 in Block B/3, Yamuna Vihar, Delhi of 70 sq. metres by admeasurement was allotted to the complainant as a result of open auction held on 12.11.1991 for a total consideration of Rs. 3,26,531/ . Admitted case of the parties was that the whole of the consideration had been deposited by the complainant by 9.3.1992. Possession of the plot was not, however, delivered to the complainant despite repeated requests. The complainant, there fore, filed a complaint, which has given rise to this appeal, for delivery of possession and adequate compensation.

THE plea of D.D.A., opposite party in this case, was that overhead electrical lines which existed on the plot in question had to be shifted by DESU and they failed to do the needful in spite of repeated requests from DDA. On a consideration of the material on record, the District Forum observed that it was the duty of DDA to clear all obstacles for putting the auction purchaser into possession of the plot. THE least that the DDA could do was not to call upon the complainant to deposit the disposal price, till the plot was in a deliverable state. It was further observed that for the dispute between DDA and DESU, the complainant could not be made to suffer. THE complaint was according allowed and a direction was given to deliver possession of the plot to the complainant within two months and in the alternative to allot the complainant another plot of the same size at the same price and in the same or nearby locality. THE DDA was further directed to pay interest @ 18% per annum on the sum of Rs. 3,26,531/ from 9.3.92 till date of delivery of possession and Rs. 5,000/ as costs. Aggrieved by the order, the DDA has preferred this appeal. We have heard Mr. S.C. Varshney, Advocate for the appellant and Mr. M.G.S. Raghav, Advocate for the respondent and have carefully gone through the records.

It may be stated at the outset that ultimately possession of the plot was delivered to the complainant on 2.2.1996. The surviving question is regarding the delay, which has been caused in delivery of the possession. To recapitulate, auction took place in November 1991. Total consideration was deposited upto March, 1992 and possession was ultimately delivered in February, 1996.

THE respondent has raised a preliminary objection that the appeal is barred by limitation and should be dismissed on that ground. THE impugned order of District Forum is dated 7.8.1995. Certified copy was received by DDA on 12.9.1995 and the appeal actually filed on 6.11.1995 alongwith an application for condonation of delay. THE cause for the delay is time taken in the movement of the file in order to obtain order of the Competent Authority whether an appeal is to be preferred and then to instruct the Lawyer to go ahead with the filing of the appeal. In the facts and circumstances of the case, in our view, the delay deserves to be condoned. Rajasthan State Insurance and GPF Department v. Radhe Shyam Gael, II (1994) CPJ 525, a decision by the Rajasthan State Commission relied on by Mr. Raghav, learned Counsel for the respondent has to be read in the significant observations of the Supreme Court in Collector, Land Execution, Anantnag & Another v. Mst. Katiji, AIR 1987 SC 1353, we had occasion to examine the question of delay in another case relating to DDA. Our decision is reported as DDA v. I.S. Narula, III (1995) CPJ 333, Various aspects of the question were examined and relying on the Statement of Law in a Division Bench judgment of Delhi High Court in Union of India v. R.P. Builders, 1994 RLR 460 (DB) it was held that in the facts and circumstances of the case the delay deserves to be condoned. Mr. Varshney has invited our attention to a recent decision of the Supreme Court in State of Jammu and Kashmir v. A.K. Gupta and Others, 1996 I AD (SC) 368 in which the Apex Court condoned the delay of three months which occurred in consultation between different Departments on the ground that it was necessary to apply a pragmatic approach. After careful consideration we find that the delay in the present case deserves to be condoned. We order accordingly

MR. Varshney contended that the Consumer Protection Act is not applicable to the facts and circumstances of the present case as the plot was purchased by the complainant in an auction and the transaction was not one of an allotment of plot as a part of scheme for providing housing facilities to the public. He placed reliance on Allied (Garments) Exports Industries Pvt. Ltd. v. DDA, 1991 (1) CPR 580 (NC) also reported in 1986 94 Consumer 152 NS. The afore said decision was followed by this Commission in Mahavir Prasad v. DDA and Another, I (1994) CPJ 214 (Delhi State Commission). Reference has also been made to Sheela Construction Pvt. Ltd. and Another v. Nainital Lake Development Authority & Others, III (1996) CPJ 11 (NC). The contention of MR. Raghav, learned Counsel for the respondent on the other hand, is that the Apex Court had laid down in Lucknow Development Authority v. M.K. Gupta, III (1993) CPJ 7 (SC) that the widest possible meaning is to be given to the word ''Service'' as defined in the Act and the activity of developing authorities constituted under various Acts in acquiring land, developing the same and either making available the plots or construction of houses was service within the meaning of the Act. MR. Raghav placed reliance on the observations of the Supreme Court in para 10 at page 17 of the report. The portions relied on by MR. Raghav are reproduced below: "The entire purpose of widening the definition is to include in it not only day to day buying and selling activity undertaken by a common man but even to such activities which are otherwise not commercial in nature yet they partake of a character in which some benefit is conferred on the consumer....... Similarly when a statutory authority develops land or allots a site or constructs a house for the benefit of common man it is as much service as by a builder or contractor....... When possession of property is not delivered within stipulated period the delay so caused is denial of service. Such disputes or claims are not in respect of immovable property as argued but deficiency in rendering of service of particular standard, quality or grade..... Similarly when a statutory authority undertakes to develop land and frame housing scheme, it, while performing statutory duty, renders service to the society in general and individual in particular......A development authority while developing the land or framing a scheme for housing discharges statutory duty the purpose and objective of which is service to the citizens..... A person who applies for allotment of a building site or for a flat constructed by the development authority or enters into an agreement with a builder or a contractor is a potential user and nature of transaction is covered in the expression ''Service'' of any description."

In our view, it should make no difference whether the plot is allotted on the basis of open auction or otherwise. The method of allotment whether by auction or otherwise, does not detract from the activity carried on by the development authority and the object for which such housing sites are developed and made available to potential users. The case is not outside the purview of the Act simply because it was an auction sale as distinguished from sale by allotment. Reference in this connection may be made to Housing Board, Haryana v. Ms. Indu Sharma, II (1992) CPJ 504 (NC), NC and B.L. Patni and Another v. DDA, I (1991) CPJ 345 (Delhi State Commission), which were cases of sale by auction. We, therefore, find no merit in the contention of MR. Varshney. The next contention of Mr. Varshney is that the overhead electrical lines had to be shifted to another site by DESU and for delay caused by DESU in shifting the overhead lines, the DDA could not be held responsible. We find no merit in this contention as well for the simple reason that the DDA should have ensured that plot put up for auction was in a deliverable state and having failed to ensure that basic requirement, it is not open to DDA to shifting blame to another Department. For the foregoing reasons, we find no merit in the Appeal, which fails and is accordingly dismissed. A copy of the order be communicated to the parties as well as District Forum II. Appeal dismissed.